personal reminiscences of early days in california, with other sketches. by stephen j. field. to which is added the story of his attempted assassination by a former associate on the supreme bench of the state. by hon. george c. gorham. printed for a few friends. not published. copyright, , by stephen j. field. * * * * * the following sketches were taken down by a stenographer in the summer of , at san francisco, from the narrative of judge field. they are printed at the request of a few friends, to whom they have an interest which they could not excite in others. * * * * * personal reminiscences of early days in california, with other sketches. index. why and how i came to california. first experiences in san francisco.--visit to marysville, and elected first alcalde of that district. experiences as alcalde. the turner controversy. running for the legislature. the turner controversy continued. life in the legislature. friendship for david c. broderick. legislation secured and beginning a new life. the barbour difficulty. removal from marysville.--life on the supreme bench.--end of judge turner. career on the supreme bench of california, as described by judge baldwin. the annoyances of my judicial life. rosy views of judicial life gradually vanishing.--unsettled land titles of the state.--asserted ownership by the state of gold and silver found in the soil.--present of a torpedo. hostility to the supreme court after the civil war.--the scofield resolution. the moulin vexation. the hastings malignity. appendix. ex. a.--notice of departure from new york for california, november , . ex. b.--aid at election of alcalde by wm. h. parks.--a sketch of my opponent. ex. c.--oath of office as alcalde. ex. d.--order of district court imprisoning and fining me for alleged contempt of court; also order expelling messrs. goodwin and mulford and myself from the bar; and order imprisoning and fining judge haun for releasing me from imprisonment upon a writ of habeas corpus, and directing that the order to imprison me be enforced. ex. e.--record of proceedings in the court of sessions, when attempt was made to arrest its presiding judge; and the testimony of the clerk of the district court in reference to its proceedings relating to myself and judge haun. ex. f.--petition of citizens of marysville to the governor to suspend judge turner from office . ex. g.--letters of ira a. eaton and a.m. winn. ex. h, no. i.--letters from surviving members of the legislature of , who voted to indefinitely postpone the proceedings for the impeachment of judge turner. ex. h, no. ii.--letter of judge mott on the difficulty with judge barbour. ex. i.--letter of l. martin, the friend of judge barbour in his street attack. ex. j.--sections , , and of the act of july , , to expedite the settlement of titles to lands in california; and the act of march , , to quiet the title to certain lands in san francisco. ex. k.--letter of judge lake giving an account of the torpedo. ex. l.--extract from the report of the register and receiver of the land-office in the matter of the contests for lands on the soscol ranch * * * * * the attempted assassination of mr. justice field index. attempted assassination of justice field by a former associate on the state supreme bench chapter i the sharon-hill-terry litigation. chapter ii proceedings in the superior court of the state. chapter iii proceedings in the united states circuit court. [transcriber's note: there is no chapter iv] chapter v decision of the case in the federal court. chapter vi the marriage of terry and miss hill. chapter vii the bill of revivor. chapter viii the terrys imprisoned for contempt. chapter ix terry's petition to the circuit court for a release--its refusal--he appeals to the supreme court--unanimous decision against him there. chapter x president cleveland refuses to pardon terry--false statements of terry refuted. chapter xi terry's continued threats to kill justice field--return of the latter to california in . chapter xii further proceedings in the state court.--judge sullivan's decision reversed. chapter xiii attempted assassination of justice field, resulting in terry's own death at the hands of a deputy united states marshal. chapter xiv sarah althea terry charges justice field and deputy marshal neagle with murder. chapter xv justice field's arrest and petition for release on habeas corpus. chapter xvi judge terry's funeral--refusal of the supreme court of california to adjourn on the occasion. chapter xvii habeas corpus proceedings in justice field's case. chapter xviii habeas corpus proceedings in neagle's case. chapter xix expressions of public opinion. chapter xx the appeal to the supreme court of the united states, and the second trial of sarah althea's divorce case. chapter xxi concluding observations. * * * * * why and how i came to california. some months previous to the mexican war, my brother david dudley field, of new york city, wrote two articles for the democratic review upon the subject of the northwestern boundary between the territory of the united states and the british possessions. one of these appeared in the june, and the other in the november number of the review for .[ ] while writing these articles he had occasion to examine several works on oregon and california, and, among others, that of greenhow, then recently published, and thus became familiar with the geography and political history of the pacific coast. the next spring, and soon after the war broke out, in the course of a conversation upon its probable results, he remarked, that if he were a young man, he would go to san francisco; that he was satisfied peace would never be concluded without our acquiring the harbor upon which it was situated; that there was no other good harbor on the coast, and that, in his opinion, that town would, at no distant day, become a great city. he also remarked that if i would go he would furnish the means, not only for the journey, but also for the purchase of land at san francisco and in its vicinity. this conversation was the first germ of my project of coming to california. some months afterwards, and while col. stevenson's regiment was preparing to start from new york for california, my brother again referred to the same subject and suggested the idea of my going out with the regiment. we had at that time a clerk in the office by the name of sluyter, for whom i had great regard. with him i talked the matter over, it being my intention, if i should go at all, to induce him if possible to accompany me. but he wished to get married, and i wished to go to europe. the result of our conference was, that the california project was deferred, with the understanding, however, that after my return from europe we should give it further consideration. but the idea of going to california thus suggested, made a powerful impression upon my mind. it pleased me. there was a smack of adventure in it. the going to a country comparatively unknown and taking a part in fashioning its institutions, was an attractive subject of contemplation. i had always thought that the most desirable fame a man could acquire was that of being the founder of a state, or of exerting a powerful influence for good upon its destinies; and the more i thought of the new territory about to fall into our hands beyond the sierra nevada, the more i was fascinated with the idea of settling there and growing up with it. but i was anxious first to visit, or rather to revisit, europe. i was not able, however, to make the necessary arrangements to do so until the summer of . on the first of may of that year, i dissolved partnership with my brother, and in june started for europe. in the following december, while at galignani's news room in paris, i read in the new york herald the message of president polk, which confirmed previous reports, that gold had been discovered in california, then recently acquired. it is difficult to describe the effect which that message produced upon my mind. i read and re-read it, and the suggestion of my brother to go to that country recurred to me, and i felt some regret that i had not followed it. i remained in europe, however, and carried out my original plan of seeing its most interesting cities, and returned to the united states in , arriving at new york on the st of october of that year. there was already at that early period a steamer leaving that city once or twice every month for chagres. it went crowded every trip. the impulse which had been started in me by my brother in , strengthened by the message of president polk, had now become irresistible. i joined the throng, and on november th, , took passage on the "crescent city;" and in about a week's time, in company with many others, i found myself at the little old spanish-american town of chagres, on the isthmus of panama. there we took small boats and were poled up the river by indians to cruces, at which place we mounted mules and rode over the mountain to panama. there i found a crowd of persons in every degree of excitement, waiting for passage to california. there were thousands of them. those who came on the "crescent city" had engaged passage on the pacific side also; but such was the demand among the multitude at panama for the means of transportation, that some of the steerage passengers sold their tickets from that place to san francisco for $ apiece and took their chances of getting on cheaper. these sales, notwithstanding they appeared at the time to be great bargains, proved, in most cases, to be very unfortunate transactions; for the poor fellows who thus sold their tickets, besides losing their time, exposed themselves to the malaria of an unhealthy coast. there was in fact a good deal of sickness already among those on the isthmus, and many deaths afterwards occurred; and among those who survived there was much suffering before they could get away. the vessel that conveyed us, and by "us" i mean the passengers of the "crescent city," and as many others as could by any possibility procure passage from panama to san francisco was the old steamer "california." she was about one thousand tons burden; but probably no ship of two thousand ever carried a greater number of passengers on a long voyage. when we came to get under way, there did not seem to be any spare space from stem to stern. there were over twelve hundred persons on board, as i was informed.[ ] unfortunately many of them carried with them the seeds of disease. the infection contracted under a tropical sun, being aggravated by hardships, insufficient food, and the crowded condition of the steamer, developed as the voyage proceeded. panama fever in its worst form broke out; and it was not long before the main deck was literally covered with the sick. there was a physician attached to the ship; but unfortunately he was also prostrated. the condition of things was very sad and painful. among the passengers taken sick were two by the name of gregory yale and stephen smith; and i turned myself into a nurse and took care of them. mr. yale, a gentleman of high attainments, and who afterwards occupied a prominent place at the bar of the state, was for a portion of the time dangerously ill, and i believe that but for my attentions he would have died. he himself was of this opinion, and afterwards expressed his appreciation of my attention in every way he could. in the many years i knew him he never failed to do me a kindness whenever an opportunity presented. finally, on the evening of december , , after a passage of twenty-two days from panama, we reached san francisco, and landed between eight and nine o'clock that night. [ ] the first article was entitled "the oregon question," and the second "the edinburgh and foreign quarterly on the oregon question." [ ] note.--the number of passengers reported to the journals of san francisco on the arrival of the steamer was much less than this, probably to avoid drawing attention to the violation of the statute which restricted the number. first experiences in san francisco. upon landing from the steamer, my baggage consisted of two trunks, and i had only the sum of ten dollars in my pocket. i might, perhaps, have carried one trunk, but i could not manage two; so i was compelled to pay out seven of my ten dollars to have them taken to a room in an old adobe building on the west side of what is now known as portsmouth square. this room was about ten feet long by eight feet wide, and had a bed in it. for its occupation the sum of $ a week was charged. two of my fellow-passengers and myself engaged it. they took the bed, and i took the floor. i do not think they had much the advantage on the score of comfort. the next morning i started out early with three dollars in my pocket. i hunted, up a restaurant and ordered the cheapest breakfast i could get. it cost me two dollars. a solitary dollar was, therefore, all the money in the world i had left, but i was in no respect despondent over my financial condition. it was a beautiful day, much like an indian summer day in the east, but finer. there was something exhilarating and exciting in the atmosphere which made everybody cheerful and buoyant. as i walked along the streets, i met a great many persons i had known in new york, and they all seemed to be in the highest spirits. every one in greeting me, said "it is a glorious country," or "isn't it a glorious country?" or "did you ever see a more glorious country?" or something to that effect. in every case the word "glorious" was sure to come out. there was something infectious in the use of the word, or rather in the feeling, which made its use natural. i had not been out many hours that morning before i caught the infection; and though i had but a single dollar in my pocket and no business whatever, and did not know where i was to get the next meal, i found myself saying to everybody i met, "it is a glorious country." the city presented an appearance which, to me, who had witnessed some curious scenes in the course of my travels, was singularly strange and wild. the bay then washed what is now the east side of montgomery street, between jackson and sacramento streets; and the sides of the hills sloping back from the water were covered with buildings of various kinds, some just begun, a few completed,--all, however, of the rudest sort, the greater number being merely canvas sheds. the locality then called happy valley, where mission and howard streets now are, between market and folsom streets, was occupied in a similar way. the streets were filled with people, it seemed to me, from every nation under heaven, all wearing their peculiar costumes. the majority of them were from the states; and each state had furnished specimens of every type within its borders. every country of europe had its representatives; and wanderers without a country were there in great numbers. there were also chilians, sonorians, kanakas from the sandwich islands, and chinese from canton and hong kong. all seemed, in hurrying to and fro, to be busily occupied and in a state of pleasurable excitement. everything needed for their wants; food, clothing, and lodging-quarters, and everything required for transportation and mining, were in urgent demand and obtained extravagant prices. yet no one seemed to complain of the charges made. there was an apparent disdain of all attempts to cheapen articles and reduce prices. news from the east was eagerly sought from all new comers. newspapers from new york were sold at a dollar apiece. i had a bundle of them, and seeing the price paid for such papers, i gave them to a fellow-passenger, telling him he might have half he could get for them. there were sixty-four numbers, if i recollect aright, and the third day after our arrival, to my astonishment he handed me thirty-two dollars, stating that he had sold them all at a dollar apiece. nearly everything else brought a similarly extravagant price. and this reminds me of an experience of my own with some chamois skins. before i left new york, i purchased a lot of stationery and the usual accompaniments of a writing-table, as i intended to practise my profession in california. the stationer, learning from some remark made by my brother cyrus, who was with me at the time, that i intended to go to california, said that i ought to buy some chamois skins in which to wrap the stationery, as they would be needed there to make bags for carrying gold-dust. upon this suggestion, i bought a dozen skins for ten dollars. on unpacking my trunk, in marysville, these chamois skins were of course exposed, and a gentleman calling at the tent, which i then occupied, asked me what i would take for them. i answered by inquiring what he would give for them. he replied at once, an ounce apiece. my astonishment nearly choked me, for an ounce was taken for sixteen dollars; at the mint, it often yielded eighteen or nineteen dollars in coin. i, of course, let the skins go, and blessed the hunter who brought the chamois down. the purchaser made bags of the skins, and the profit to him from their sale amounted to two ounces on each skin. from this transaction, the story arose that i had sold porte-monnaies in marysville before practising law, which is reported in the interesting book of messrs. barry and patten, entitled "men and memories of san francisco in the spring of ." the story has no other foundation. but i am digressing from the narrative of my first experience in san francisco. after taking my breakfast, as already stated, the first thing i noticed was a small building in the plaza, near which a crowd was gathered. upon inquiry, i was told it was the court-house. i at once started for the building, and on entering it, found that judge almond, of the san francisco district, was holding what was known as the court of first instance, and that a case was on trial. to my astonishment i saw two of my fellow-passengers, who had landed the night before, sitting on the jury. this seemed so strange that i waited till the case was over, and then inquired how it happened they were there. they said that they had been attracted to the building by the crowd, just as i had been, and that while looking on the proceedings of the court the sheriff had summoned them. they replied to the summons, that they had only just arrived in the country. but he said that fact made no difference; nobody had been in the country three months. they added that they had received eight dollars each for their services. at this piece of news i thought of my solitary dollar, and wondered if similar good fortune might not happen to me. so i lingered in the court-room, placing myself near the sheriff in the hope that on another jury he might summon me. but it was not my good luck. so i left the temple of justice and strolled around the busy city, enjoying myself with the novelty of everything. passing down clay street, and near kearney street, my attention was attracted by a sign in large letters, "jonathan d. stevenson, gold dust bought and sold here." as i saw this inscription i exclaimed, "hallo, here is good luck," for i suddenly recollected that when i left new york my brother dudley had handed me a note against stevenson for $ or $ ; stating that he understood the colonel had become rich in california, and telling me, that if such were the case, to ask him to pay the note. i had put the paper in my pocket-book and thought no more of it until the sight of the sign brought it to my recollection, and also reminded me of my solitary dollar. of course i immediately entered the office to see the colonel. he had known me very well in new york, and was apparently delighted to see me, for he gave me a most cordial greeting. after some inquiries about friends in new york, he commenced talking about the country. "ah," he continued, "it is a glorious country. i have made two hundred thousand dollars." this was more than i could stand. i had already given him a long shake of the hand but i could not resist the impulse to shake his hand again, thinking all the time of my financial condition. so i seized his hand again and shook it vigorously, assuring him that i was delighted to hear of his good luck. we talked over the matter, and in my enthusiasm i shook his hand a third time, expressing my satisfaction at his good fortune. we passed a long time together, he dilating all the while upon the fine country it was in which to make money. at length i pulled out the note and presented it to him. i shall never forget the sudden change, from wreaths of smiles to an elongation of physiognomy, expressive of mingled surprise and disgust, which came over his features on seeing that note. he took it in his hands and examined it carefully; he turned it over and looked at its back, and then at its face again, and then, as it were, at both sides at once. at last he said in a sharp tone, "that's my signature," and began to calculate the interest; that ascertained, he paid me the full amount due. if i remember rightly he paid me $ in spanish doubloons, but some of it may have been in gold dust. if it had not been for this lucky incident, i should have been penniless before night. the good fortune which the colonel then enjoyed has not always attended him since. the greater part of his property he lost some years afterwards, but he has always retained, and now in his seventy-eighth year[ ] still retains, great energy and vigor of mind, and a manly independence of character, which have made him warm friends. in all the changes of my life his name is pleasantly associated with the payment of the note, and the timely assistance which he thus gave me. his career as commander of the well-known regiment of new york volunteers which arrived in california in march, , and subsequently in the state, are matters of public history. as soon as i found myself in funds i hired a room as an office at the corner of montgomery and clay streets for one month for $ , payable in advance. it was a small room, about fifteen feet by twenty. i then put out my shingle as attorney and counsellor-at-law, and waited for clients; but none came. one day a fellow-passenger requested me to draw a deed, for which i charged him an ounce. he thought that too much, so i compromised and took half an ounce. for two weeks this was the only call i had upon my professional abilities. but i was in no way discouraged. to tell the truth i was hardly fit for business. i was too much excited by the stirring life around me. there was so much to hear and see that i spent half my time in the streets and saloons talking with people from the mines, in which i was greatly interested. i felt sure that there would soon be occasion in that quarter for my services. whilst i was excited over the news which was daily brought from the mines in the interior of the state, and particularly from the northern part, an incident occurred which determined my future career in california. i had brought from new york several letters of introduction to persons who had preceded me to the new country, and among them one to the mercantile firm of simmons, hutchinson & co., of san francisco, upon whom i called. they received me cordially, and inquired particularly of my intentions as to residence and business. they stated that there was a town at the head of river navigation, at the junction of sacramento and feather rivers, which offered inducements to a young lawyer. they called it vernon, and said they owned some lots in it which they would sell to me. i replied that i had no money. that made no difference, they said; they would let me have them on credit; they desired to build up the town and would let the lots go cheap to encourage its settlement. they added that they owned the steamer "mckim," going the next day to sacramento, and they offered me a ticket in her for that place, which they represented to be not far from vernon. accordingly i took the ticket, and on january th, , left for sacramento, where i arrived the next morning. it was the time of the great flood of that year, and the entire upper country seemed to be under water. upon reaching the landing place at sacramento, we took a small boat and rowed to the hotel. there i found a great crowd of earnest and enthusiastic people, all talking about california, and in the highest spirits. in fact i did not meet with any one who did not speak in glowing terms of the country and anticipate a sudden acquisition of fortune. i had already caught the infection myself, and these new crowds and their enthusiasm increased my excitement. the exuberance of my spirits was marvelous. the next day i took the little steamer "lawrence," for vernon, which was so heavily laden as to be only eighteen inches out of water; and the passengers, who amounted to a large number, were requested not to move about the deck, but to keep as quiet as possible. in three or four hours after leaving sacramento, the captain suddenly cried out with great energy, "stop her! stop her!"; and with some difficulty the boat escaped running into what seemed to be a solitary house standing in a vast lake of water. i asked what place that was, and was answered, "vernon,"--the town where i had been advised to settle as affording a good opening for a young lawyer. i turned to the captain and said, i believed i would not put out my shingle at vernon just yet, but would go further on. the next place we stopped at was nicolaus, and the following day we arrived at a place called nye's ranch, near the junction of feather and yuba rivers. no sooner had the vessel struck the landing at nye's ranch than all the passengers, some forty or fifty in number, as if moved by a common impulse, started for an old adobe building, which stood upon the bank of the river, and near which were numerous tents. judging by the number of the tents, there must have been from five hundred to a thousand people there. when we reached the adobe and entered the principal room, we saw a map spread out upon the counter, containing the plan of a town, which was called "yubaville," and a man standing behind it, crying out, "gentlemen, put your names down; put your names down, all you that want lots." he seemed to address himself to me, and i asked the price of the lots. he answered, "two hundred and fifty dollars each for lots by feet." i replied, "but, suppose a man puts his name down and afterwards don't want the lots?" he rejoined, "oh, you need not take them if you don't want them: put your names down, gentlemen, you that want lots." i took him at his word and wrote my name down for sixty-five lots, aggregating in all $ , . this produced a great sensation. to the best of my recollection i had only about twenty dollars left of what col. stevenson had paid me; but it was immediately noised about that a great capitalist had come up from san francisco to invest in lots in the rising town. the consequence was that the proprietors of the place waited upon me and showed me great attention. two of the proprietors were french gentlemen, named covillaud and sicard. they were delighted when they found i could speak french and insisted on showing me the town site. it was a beautiful spot, covered with live-oak trees that reminded me of the oak parks in england, and the neighborhood was lovely. i saw at once that the place, from its position at the head of practical river navigation, was destined to become an important depot for the neighboring mines, and that its beauty and salubrity would render it a pleasant place for residence. in return for the civilities shown me by mr. covillaud, and learning that he read english, i handed him some new york papers i had with me, and among them a copy of the new york "evening post" of november th, , which happened to contain a notice of my departure for california with an expression of good wishes for my success.[ ] the next day mr. covillaud came to me and in an excited manner said: "ah, monsieur, are you the monsieur field, the lawyer from new york, mentioned in this paper?" i took the paper and looked at the notice with apparent surprise that it was marked, though i had myself drawn a pencil line around it, and replied, meekly and modestly, that i believed i was. "well, then," he said, "we must have a deed drawn for our land." upon making inquiries i found that the proprietors had purchased the tract upon which the town was laid out, and several leagues of land adjoining, of general--then captain--john a. sutter, but had not yet received a conveyance of the property. i answered that i would draw the necessary deed; and they immediately dispatched a couple of vaqueros for captain sutter, who lived at hock farm, six miles below, on feather river. when he arrived the deed was ready for signature. it was for some leagues of land; a considerably larger tract than i had ever before put into a conveyance. but when it was signed there was no officer to take the acknowledgment of the grantor, nor an office in which it could be recorded, nearer than sacramento. i suggested to those present on the occasion, that in a place of such fine prospects, and where there was likely in a short time to be much business and many transactions in real property, there ought to be an officer to take acknowledgments and record deeds, and a magistrate for the preservation of order and the settlement of disputes. it happened that a new house, the frame of which was brought in the steamer, was put up that day; and it was suggested by mr. covillaud that we should meet there that evening and celebrate the execution of the deed, and take into consideration the subject of organizing a town by the election of magistrates. when evening came the house was filled. it is true it had no floor, but the sides were boarded up and a roof was overhead, and we improvised seats out of spare planks. the proprietors sent around to the tents for something to give cheer to the meeting, and, strange as it may seem, they found two baskets of champagne. these they secured, and their contents were joyously disposed of. when the wine passed around, i was called upon and made a speech. i started out by predicting in glowing colors the prosperity of the new town, and spoke of its advantageous situation on the feather and yuba rivers; how it was the most accessible point for vessels coming up from the cities of san francisco and sacramento, and must in time become the depot for all the trade with the northern mines. i pronounced the auriferous region lying east of the feather river and north of the yuba the finest and richest in the country; and i felt certain that its commerce must concentrate at the junction of those rivers. but, said i, to avail ourselves of all these advantages we must organize and establish a government, and the first thing to be done is to call an election and choose magistrates and a town council. these remarks met with general favor, and it was resolved that a public meeting should be held in front of the adobe house the next morning, and if it approved of the project, that an election should be held at once. accordingly, on the following morning, which was the th of january, , a public meeting of citizens was there held, and it was resolved that a town government should be established and that there should be elected an ayuntamiento or town council, a first and second alcalde, (the latter to act in the absence or sickness of the former,) and a marshal. the alcalde was a judicial officer under the spanish and mexican laws, having a jurisdiction something like that of a justice of the peace; but in the anomalous condition of affairs in california at that time, he, as a matter of necessity, assumed and exercised very great powers. the election ordered took place in the afternoon of the same day. i had modestly whispered to different persons at the meeting in the new house the night before, that my name was mentioned by my friends for the office of alcalde; and my nomination followed. but i was not to have the office without a struggle; an opposition candidate appeared, and an exciting election ensued. the main objection urged against me was that i was a new comer. i had been there only three days; my opponent had been there six. i beat him, however, by nine votes.[ ] on the evening of the election, there was a general gathering of people at the adobe house, the principal building of the place, to hear the official announcement of the result of the election. when this was made, some one proposed that a name should be adopted for the new town. one man suggested "yubafield," because of its situation on the yuba river; and another, "yubaville," for the same reason. a third, urged the name "circumdoro," (surrounded with gold, as he translated the word,) because there were mines in every direction round about. but there was a fourth, a solid and substantial old man, evidently of kindly domestic affections, who had come out to california to better his fortunes. he now rose and remarked that there was an american lady in the place, the wife of one of the proprietors; that her name was mary; and that, in his opinion, her name ought to be given to the town, and it should be called, in her honor, "marysville." no sooner had he made the suggestion, than the meeting broke out into loud hurrahs; every hat made a circle around its owner's head, and we christened the new town "marysville," without a dissenting voice. for a few days afterwards, the town was called both yubaville and marysville, but the latter name was soon generally adopted, and the place is so called to this day. the lady, in whose honor it was named was mrs. covillaud. she was one of the survivors of the donner party, which suffered so frightfully while crossing the sierra nevadas in the winter of - , and had been living in the country ever since that terrible time. with my notions of law, i did not attach much importance to the election, but i had a certificate of election made out and signed by the inspectors, stating that at a meeting of the residents of the district of yubaville, on the day named, an election for officers had been held, and designating the inspectors who were appointed, the number of votes that had been cast for the office of alcalde, and the number received by myself, and the number received by my opponent, and that as i had received a majority of all the votes cast, i was elected to that office. it was made out with all possible formality, and when completed, was sent to the prefect of the district. this officer, a mr. e.o. crosby, afterwards minister to one of the south american republics, wrote back approving my election, and advising me to act. his advice, under the circumstances, was a matter of some moment. the new constitution of the state had gone into effect, though it was still uncertain whether it would be recognized by congress. mr. crosby, therefore, thought it best for me to procure, in addition to my commission as alcalde, an appointment as justice of the peace; and through his kind offices, i obtained from governor burnett the proper document bearing his official seal. after my election, i went to sacramento, and on the d of january, , was sworn into office as first alcalde of yubaville, by the judge of the court of first instance, as that was the name of the district in the certificate of election; but i was always designated, after the name of the town had been adopted, as first alcalde of marysville.[ ] captain sutter, whose deed i had drawn, was a remarkable character. he was about five feet nine inches in height, and was thick-set. he had a large head and an open, manly face, somewhat hardened and bronzed by his life in the open air. his hair was thin and light, and he wore a mustache. he had the appearance of an old officer of the french army, with a dignified and military bearing. i subsequently became well acquainted with him, and learned both to respect and to pity him. i respected him for his intrepid courage, his gentle manners, his large heart, and his unbounded benevolence. i pitied him for his simplicity, which, while suspecting nothing wrong in others, led him to trust all who had a kind word on their lips, and made him the victim of every sharper in the country. he was a native of switzerland and was an officer in the swiss guards, in the service of the king of france, in , and for some years afterwards. in , he emigrated to america, and had varied and strange adventures among the indians at the west; in the sandwich islands, at fort vancouver, in alaska, and along the pacific coast. in july, , the vessel which he was aboard of, was stranded in the harbor of san francisco. he then penetrated into the interior of california and founded the first white settlement in the valley of the sacramento, on the river of that name, at the mouth of the american river, which settlement he named helvetia. he built a fort there and gathered around it a large number of native indians and some white settlers. in , the mexican government granted to him a tract of land eleven square leagues in extent; and, subsequently, a still larger concession was made to him by the governor of the department. but the governor being afterwards expelled from the country, the concession was held to be invalid. the emigrants arriving in the country after the discovery of gold proved the ruin of his fortunes. they squatted upon his land, denied the validity of his title, cut down his timber, and drove away his cattle. sharpers robbed him of what the squatters did not take, until at last he was stripped of everything; and, finally, he left the state, and for some years has been living with relatives in pennsylvania. even the stipend of $ , , which the state of california for some years allowed him, has been withdrawn, and now in his advanced years, he is almost destitute. yet, in his days of prosperity, he was always ready to assist others. his fort was always open to the stranger, and food, to the value of many thousand dollars, was, every year, so long as he had the means, sent out by him for the relief of emigrants crossing the plains. it is a reproach to california that she leaves the pioneer and hero destitute in his old age. [ ] col. stevenson was born at the commencement of the century, and is therefore now, , in his ninety-fourth year. [ ] see exhibit a, in appendix. [ ] see exhibit b, in appendix. [ ] see exhibit c, in appendix. experiences as alcalde. under the mexican law, alcaldes had, as already stated, a very limited jurisdiction. but in the anomalous condition of affairs under the american occupation, they exercised almost unlimited powers. they were, in fact, regarded as magistrates elected by the people for the sake of preserving public order and settling disputes of all kinds. in my own case, and with the approval of the community, i took jurisdiction of every case brought before me. i knew nothing of mexican laws; did not pretend to know anything of them; but i knew that the people had elected me to act as a magistrate and looked to me for the preservation of order and the settlement of disputes; and i did my best that they should not be disappointed. i let it be known that my election had been approved by the highest authority. the first case i tried was in the street. two men came up to me, one of them leading a horse. he said, "mr. alcalde, we both claim this horse, and we want you to decide which of us is entitled to it." i turned to the man who had the horse, administered an oath to him, and then examined him as to where he got the horse, of whom and when, whether he had a bill of sale, whether there was any mark or brand on the animal, and, in short, put all those questions which would naturally be asked in such a case to elicit the truth. i then administered an oath to the other man and put him through a similar examination, paying careful attention to what each said. when the examination was completed i at once decided the case. "it is very plain, gentlemen," i said, "that the horse belongs to this man (pointing to one of them) and the other must give him up." "but," said the man who had lost and who held the horse, "the bridle certainly belongs to me, he does not take the bridle, does he?" i said, "oh no, the bridle is another matter." as soon as i said this the owner of the bridle turned to his adversary and said, "what will you take for the horse?" "two hundred and fifty dollars," was the instant reply. "agreed," retorted the first, and then turning to me, he continued: "and now, mr. alcalde, i want you to draw me up a bill of sale for this horse which will stick." i, of course, did as he desired. i charged an ounce for trying the case and an ounce for the bill of sale; charges which were promptly paid. both parties went off perfectly satisfied. i was also well pleased with my first judicial experience. soon after my election i went to san francisco to get my effects; and while there i purchased, on credit, a frame house and several zinc houses, which were at once shipped to marysville. as soon as the frame house was put up i opened my office in it, and exercised not only the functions of a magistrate and justice, but also of a supervisor of the town. i opened books for the record of deeds and kept a registry of conveyances in the district. i had the banks of the river graded so as to facilitate the landing from vessels. the marshal of my court, elected at the same time with myself, having refused to act, i appointed an active and courageous person in his place, r.b. buchanan by name, and directed him to see that peace was preserved, and for that purpose to appoint as many deputies as might be necessary. he did so, and order and peace were preserved throughout the district, not only in marysville, but for miles around. as a judicial officer, i tried many cases, both civil and criminal, and i dictated the form of process suited to the exigency. thus, when a complaint was made to me by the owner of a river boat, that the steamer, which plied between marysville and sacramento, had run down his boat, by which a part of its cargo was lost, i at once dictated process to the marshal, in which the alleged injury was recited, and he was directed to seize the steamer, and hold it until further orders, unless the captain or owner gave security to appear in the action commenced by the owner of the boat, and pay any judgment that might be recovered therein. upon service of the process the captain appeared, gave the required security, and the case was immediately tried. judgment was rendered and paid within five hours after the commission of the injury. in civil cases, i always called a jury, if the parties desired one; and in criminal cases, when the offence was of a high grade, i went through the form of calling a grand jury, and having an indictment found; and in all cases i appointed an attorney to represent the people, and also the accused, when necessary. the americans in the country had a general notion of what was required for the preservation of order and the due administration of justice; and as i endeavored to administer justice promptly, but upon a due consideration of the rights of every one, and not rashly, i was sustained with great unanimity by the community. i have reported a civil case tried before me as alcalde. i will now give a few criminal prosecutions and their circumstances. one morning, about five o'clock, a man tapped at my window, and cried, "alcalde, alcalde, there has been a robbery, and you are wanted." i got up at once, and while i was dressing he told his story. nearly every one in those days lived in a tent and had his gold dust with him. the man, who proved to be gildersleeve, the famous runner, upon going to bed the previous evening had placed several pounds of gold dust in his trunk, which was not locked. in the night some one had cut through his tent and taken the gold dust. i asked him if he suspected anybody; and he named two men, and gave such reasons for his suspicion that i immediately dictated a warrant for their arrest; and in a short time the two men were arrested and brought before me. the gold dust was found on one of them. i immediately called a grand jury, by whom he was indicted. i then called a petit jury, and assigned counsel for the prisoner. he was immediately placed upon his trial, and was convicted. the whole proceeding occupied only a part of the day. there was a great crowd and much excitement, and some talk of lynching. curiously enough, my real trouble did not commence until after the conviction. what was to be done with the prisoner? how was he to be punished? imposing a fine would not answer; and, if he had been discharged, the crowd would have immediately hung him. when at san francisco, mayor geary, of that place, told me if i would send my convicts to him, with money enough to pay for a ball and chain for each one, he would put them in the chain-gang. but at that time the price of passage by steamer from marysville to san francisco was fifty dollars, which, with the expense of an officer to accompany the prisoner, and the price of a ball and chain, would have amounted to a much larger sum than the prosecution could afford; so it was clearly impracticable to think of sending him to san francisco. nor is it at all likely that the people would have consented to his removal. under these circumstances there was but one course to pursue, and, however repugnant it was to my feelings to adopt it, i believe it was the only thing that saved the man's life. i ordered him to be publicly whipped with fifty lashes, and added that if he were found, within the next two years, in the vicinity of marysville, he should be again whipped. i, however, privately ordered a physician to be present so as to see that no unnecessary severity was practiced. in accordance with this sentence, the fellow was immediately taken out and flogged; and that was the last seen of him in that region. he went off and never came back. the latter part of the sentence, however, was supererogatory; for there was something so degrading in a public whipping, that i have never known a man thus whipped who would stay longer than he could help, or ever desire to return. however this may have been, the sense of justice of the community was satisfied. no blood had been shed; there had been no hanging; yet a severe public example had been given. on another occasion a complaint was made that a man had stolen fifteen hundred dollars from a woman. he was arrested, brought before me, indicted, tried, and convicted. i had the same compunctions about punishment as before, but, as there was no other course, i ordered him to receive fifty lashes on his back on two successive days, unless he gave up the money, in which case he was to receive only fifty lashes. as soon as the sentence was written down the marshal marched the prisoner out to a tree, made him hug the tree, and in the presence of the crowd that followed, began inflicting the lashes. the man stood it for awhile without flinching, but when he had received the twenty-second lash he cried out, "stop, for god's sake, and i will tell you where the money is." the marshal stopped and, accompanied by the crowd, took the man to the place indicated, where the money was recovered; and the thief was then made to carry it back to the woman and apologize for stealing it. the marshal then consulted the sentence, and, finding that it prescribed fifty lashes at any rate, he marched the wretch back to the tree and gave him the balance, which was his due. but the case which made the greatest impression upon the people, and did more to confirm my authority than anything else, was the following: there was a military encampment of united states soldiers on bear river, about fifteen miles from marysville, known as "camp far west." one day an application was made to me to issue a warrant for the arrest of one of the soldiers for a larceny he had committed. it was stated that a complaint had been laid before the local alcalde near the camp; but that the officer in charge had refused to give up the soldier unless a warrant for that purpose were issued by me, it being the general impression that i was the only duly commissioned alcalde in the district above sacramento. on this showing i issued my warrant, and a lieutenant of the army brought the soldier over. the soldier was indicted, tried, convicted, and sentenced to be publicly whipped with the usual number of lashes, and the officer stood by and saw the punishment inflicted. he then took the soldier back to camp, where it was afterwards reported that he received an additional punishment. but before the lieutenant left me that day, and while we were dining together, he took occasion to say that, if at any time i had any trouble in enforcing the law, i had but to send him word and he would order out a company of troops to support me. this offer i permitted to become known through the town; and people said--and with what effect may be imagined--"why here is an alcalde that has the troops of the united states at his back." i have already stated that i had the banks of the yuba river graded so as to facilitate the landing from vessels. i will now mention another instance of my administration as general supervisor of the town. there were several squatters on the landing at the river, which, according to the plan of the town, was several hundred feet wide. the lots fronting on this landing being the best for business, commanded the highest prices. but on account of the squatters the owners were deprived of the benefit of the open ground of the landing in front of their property, and they complained to me. i called upon the squatters and told them that they must leave, and that if they were not gone by a certain time, i should be compelled to remove them by force, and, if necessary, to call to my aid the troops of the united states. this was enough; the squatters left, the landing was cleared, and business went on smoothly. in addition to my ordinary duties as a judicial officer and as general supervisor of the town, i acted as arbitrator in a great number of controversies which arose between the citizens. in such cases the parties generally came to my office together and stated that they had agreed to leave the matter in dispute between them to my decision. i immediately heard their respective statements--sometimes under oath, and sometimes without oath--and decided the matter at once. the whole matter was disposed of without any written proceedings, except in some instances i gave to parties a memorandum of my decision. thus on one occasion a dispute arose as to the rate of wages, between several workmen and their employer; the workmen insisting upon twelve dollars a day and the employer refusing to give more than ten. to settle the dispute they agreed to leave the matter to me. i heard their respective statements, and after stating that both of them ought to suffer a little for not having made a specific contract at the outset, decided that the workingmen should receive eleven dollars a day, with which both appeared to be well satisfied. on another occasion parties disputed as to whether freight on a box of crockery should be charged by measurement or by weight, a specific contract having been made that all articles shipped by the owner should be carried at a fixed price per hundred pounds. they agreed to leave the matter to my determination, and i settled it in five minutes. again, on one occasion a woman, apparently about fifty-six, rushed into my office under great excitement, exclaiming that she wanted a divorce from her husband, who had treated her shamefully. a few moments afterwards the husband followed, and he also wanted relief from the bonds of matrimony. i heard their respective complaints, and finding that they had children, i persuaded them to make peace, kiss, and forgive; and so they left my office arm-in-arm, each having promised the other never to do so again, amid the applause of the spectators. in this way i carried out my conception of the good cadi of the village, from which term (al cadi) my own official designation, alcalde, was derived. to make a long story short, until i was superseded by officers under the state government, i superintended municipal affairs and administered justice in marysville with success. whilst there was a large number of residents there of high character and culture, who would have done honor to any city, there were also unfortunately many desperate persons, gamblers, black-legs, thieves, and cut-throats; yet the place was as orderly as a new england village. there were no disturbances at night, no riots, and no lynching. it was the model town of the whole country for peacefulness and respect for law. and now a word about my speculations. in a short time after going to marysville and writing my name down for sixty-five town lots, property increased ten-fold in value. within ninety days i sold over $ , worth, and still had most of my lots left. my frame and zinc houses brought me a rental of over $ , a month. the emoluments of my office of alcalde were also large. in criminal cases i received nothing for my services as judge, and in civil cases the fees were small; but as an officer to take acknowledgments and affidavits and record deeds, the fees i received amounted to a large sum. at one time i had $ , in gold dust in my safe, besides the rentals and other property. one day whilst i was alcalde, a bright-looking lad, with red cheeks and apparently about seventeen years of age, came into the office and asked if i did not want a clerk. i said i did, and would willingly give $ a month for a good one; but that i had written to sacramento and was expecting one from there. the young man suggested that perhaps the one from sacramento would not come or might be delayed, and he would like to take the place in the meanwhile. i replied, very well, if he was willing to act until the other arrived, he might do so. and thereupon he took hold and commenced work. three days afterwards the man from sacramento arrived; but in the meanwhile i had become so much pleased with the brightness and quickness of my young clerk that i would not part with him. that young clerk was george c. gorham, the present secretary of the united states senate. i remember him distinctly as he first appeared to me, with red and rosy cheeks. his quickness of comprehension was really wonderful. give him half an idea of what was wanted, and he would complete it as it were by intuition. i remember on one occasion he wanted to know what was necessary for a marriage settlement. i asked him why. he replied that he had been employed by a french lady to prepare such a settlement, and was to receive twenty-five dollars for the instrument. i gave him some suggestions, but added that he had better let me see the document after he had written it. in a short time afterwards he brought it to me, and i was astonished to find it so nearly perfect. there was only one correction to make. and thus ready i always found him. with the most general directions he would execute everything committed to his charge, and usually with perfect correctness. he remained with me several months, and acted as clerk of my alcalde court, and years afterwards, at different times was a clerk in my office. when i went upon the bench of the supreme court, i appointed him clerk of the circuit court of the united states for the district of california, and, with the exception of the period during which he acted as secretary of gov. low, he remained as such clerk until he was nominated for the office of governor of the state, when he resigned. through the twenty-seven years of our acquaintance, from to the present time, july, , his friendship and esteem have been sincere and cordial, which no personal abuse of me could change and no political differences between us could alienate. his worldly possessions would have been more abundant had he pursued the profession of the law, which i urged him to do; and his success as a public man would have been greater, had he been more conciliatory to those who differed from him in opinion. the turner controversy. towards the end of may, , william e. turner, who had been appointed judge of the eighth judicial district of the state by the first legislature which convened under the constitution, made his appearance and announced that he intended to open the district court at marysville on the first monday of the next month. we were all pleased with the prospect of having a regular court and endeavored, as far as lay in our power, to make the stay of the judge with us agreeable. i had been in the habit of receiving a package of new york newspapers by every steamer, and among them came copies of the new york "evening post," which was at that time the organ of the so-called free-soil party. when judge turner arrived, i waited on him to pay my respects, and sent him the various newspapers i had received. he had lived for years in texas, and, as it proved, was a man of narrow mind and bitter prejudices. he seems to have had a special prejudice against new yorkers and regarded a free-soiler as an abomination. i have been told, and i believe such to be the fact, that my sending him these newspapers, and particularly the "evening post," led him to believe that i was an "abolitionist"--a person held in special abhorrence in those days by gentlemen from the south. at any rate he conceived a violent dislike of me, which was destined in a short time to show itself and cause me great annoyance. what was intended on my part as an act of courtesy, turned out to be the beginning of a long, bitter, and on his part, ferocious quarrel. at that time my affairs were in a very prosperous condition, as i have already stated. i had $ , in gold dust, a rental of over a thousand dollars a month, and a large amount of city property constantly increasing in value. such being the case, i thought i would go east on a visit, and accordingly began making arrangements to leave. but shortly before the opening of the june term of the district court, captain sutter came to me and told me he had been sued by a man named cameron, and wished me to appear as his counsel. i answered that i was making arrangements to go east and he had better retain some one else. he replied that i ought to remain long enough to appear for him and assist his attorney, and begged of me as an act of friendship to do so. i finally consented, and deferred my departure. soon after the opening of the court, some time during the first week, the case of captain sutter was called. a preliminary motion, made by his attorney, was decided against him. mr. jesse o. goodwin, a member of the bar, sitting near, said to me that the practice act, passed at the recent session of the legislature, contained a section bearing upon the question; and at the same time handed me the act. i immediately rose, and addressing the court, remarked that i was informed there was a statutory provision applicable to the point, and begged permission to read it; and commenced turning over the pages of the act in search of it, when judge turner, addressing me and apparently irritated, said in a petulant manner;--"the court knows the law--the mind of the court is made up--take your seat, sir." i was amazed at hearing such language; but in a respectful and quiet manner stated that i excepted to the decision, and appealed, or would appeal from the order. the judge instantly replied, in a loud and boisterous manner, "fine that gentleman two hundred dollars." i replied quietly, "very well," or "well, sir." he immediately added, in an angry tone, "i fine him three hundred dollars, and commit him to the custody of the sheriff eight hours." i again replied, "very well." he instantly exclaimed, in the same violent manner, "i fine him four hundred dollars and commit him twelve hours." i then said that it was my right by statute to appeal from any order of his honor, and that it was no contempt of court to give notice of an exception or an appeal, and asked the members of the bar present if it could be so regarded. but the judge, being very ignorant of the practice of the law, regarded an exception to his decision as an impeachment of his judgment, and, therefore, something like a personal affront. and so, upon my statement, he flew into a perfect rage, and in a loud and boisterous tone cried out, "i fine him five hundred dollars and commit him twenty-four hours--forty-eight hours--turn him out of court--subpoena a posse--subpoena me." i then left the court-room. the attorney in the case accompanied me, and we were followed by the deputy sheriff. after going a few steps we met the coroner, to whom the deputy sheriff transferred me; and the coroner accompanied me to my office, and after remaining there a few moments left me to myself. on the way an incident occurred, which probably inflamed judge turner against me more than anything else that could have happened. the attorney, who was much exasperated at the conduct of the judge, said to me as we met the coroner, "never mind what the judge does; he is an old fool." i replied, "yes, he is an old jackass." this was said in an ordinary conversational tone; but a man by the name of captain powers, with whom turner boarded, happened to overhear it, and running to the court-house, and opening the door, he hallooed out, "judge turner! oh, judge turner! judge field says you are an old jackass." a shout followed, and the judge seemed puzzled whether or not he should send an officer after me, or punish his excitable friend for repeating my language. i remained in my office the remainder of the day, and many people who were present in court, or heard of what had occurred, called to see me. i immediately wrote out a full statement of everything that happened in the court-room, and had it verified by a number of persons who were eye and ear witnesses of the affair. towards evening the deputy sheriff met the judge, who asked him what he had done with me. the deputy answered that i had gone to my office and was still there. the judge said, "go and put him under lock and key, and, if necessary, put him in irons." the deputy came to me and said, "the judge has sent me to put you under lock and key; let me turn the key upon you in your own office." at this i became indignant, and asked for his warrant or commitment to hold me. he replied that he had none, that only a verbal order was given to him by the judge in the street. i then told him he must go away from me and leave me alone. he replied that, "as he was acting by the orders of the sheriff, whose deputy he was, in obeying the judge, he must do as he had been directed." he added, "i will lock the door anyway," and doing so he went off. i immediately sued out a writ of habeas corpus returnable before henry p. haun, the county judge. the writ was executed forthwith, and the same evening i was taken before the judge. there was a great crowd present. i called the sheriff to the stand and asked him if he had any writ, process, commitment, or order by which he held me in custody. he replied that he had none. i then put on the stand samuel b. mulford and jesse o. goodwin and several others, who were present in the district court where the scenes narrated had occurred, and they testified that there was nothing disrespectful in my language or manner; that i had not used an expression at which anybody could justly take offence; and that they had been utterly surprised at the conduct of the judge, which was violent and tyrannical; and that they saw no possible excuse for it. this testimony was of course of no consequence on the question presented by the habeas corpus; because, as there was no order or warrant for my arrest in the possession of the officer, i could not, under any circumstances, be held; but i wished to show my friends, who had not been present in the court-room, the facts of the case. i was of course at once discharged. but the matter did not end there. an excited crowd was present, and as i left the court-room they cheered enthusiastically. i thereupon invited them to the covillaud house, a public house in the town, and directed the keeper to dispense to them the good things of his bar. the champagne was accordingly uncorked without stint, and the best havana boxes were soon emptied of their most fragrant cigars. a bill of $ paid the next day settled the account. whilst the boys were thus enjoying themselves, judge turner, who was not far off, entered the covillaud house, perfectly furious, and applied obscene and vile epithets to the county judge, declaring with an oath that he would teach "that fellow" that he was an inferior judge, and that the witnesses before him were a set of "perjured scoundrels" who should be expelled from the bar. similar threats were made by him in different saloons in the town, to the disgust of every one. that evening he was burned in effigy in the public plaza. i had nothing to do with that act, and did not approve of it. i did not know then, and do not know to this day who were engaged in it. he attributed it to me, however, and his exasperation towards me in consequence became a malignant fury. on the monday following, june th, which was the first day on which the court was held after the scenes narrated, judge turner, on the opening of the court, before the minutes of the previous session were read, and without notice to the parties, or any hearing of them, although they were present at the time, ordered that judge haun be fined fifty dollars and be imprisoned forty-eight hours for his judicial act in discharging me from arrest, under some pretence that the order of the court had been thus obstructed by him. at the same time he ordered that i should be re-imprisoned, and that mr. mulford, mr. goodwin, and myself should be expelled from the bar; myself for suing out the writ, and those two gentlemen for being witnesses on its return, under the pretence that we had "vilified the court and denounced its proceedings." judge haun paid his fine and left the court-room, and i was again taken into custody by the sheriff.[ ] it happened to be the day appointed by law for the opening of the court of sessions of the county, over which the county judge presided. judge haun proceeded from the district court to the room engaged for the court of sessions, and there, in connection with an associate justice, opened that court. immediately afterwards i sued out another writ of _habeas corpus_, returnable forthwith, and whilst before the court arguing for my discharge under the writ, the sheriff entered and declared his intention of taking me out of the room, and of taking judge haun from the bench and putting us in confinement, pursuant to the order of judge turner. judge haun told the sheriff that the court of sessions was holding its regular term; that he was violating the law, and that the court must not be disturbed in its proceedings. judge turner was then informed that the court of sessions was sitting; that judge haun was on the bench, and that i was arguing before the court on a writ of habeas corpus. judge turner immediately ordered a posse to be summoned and appealed to gentlemen in the court-room to serve on it, and directed the sheriff to take judge haun and myself into custody by force, notwithstanding judge haun was on the bench, and i was arguing my case; and if necessary to put judge haun in irons--to handcuff him. soon afterwards the sheriff, with a posse, entered the room of the court of sessions, and forced me out of it, and was proceeding to seize judge haun on the bench, when the judge stepped to a closet and drew from it a navy revolver, cocked it, and, pointing it towards the sheriff, informed him in a stern manner that he was violating the law; that whilst on the bench he, the judge, could not be arrested, and that if the sheriff attempted to do so he would kill him. at the same time he fined the sheriff for contempt of court $ , and appointed a temporary bailiff to act, and directed him to clear the court-room of the disturbers. the new bailiff summoned all the bystanders, who instantly responded, and the court-room was immediately cleared. judge haun then laid his revolver on a drawer before him, and inquired if there was any business ready; for if so the court would hear it. there being none, the court adjourned. i regret to be compelled to add, that notwithstanding the manly and courageous conduct which judge haun had thus shown, no sooner was the court adjourned than he was persuaded to make a qualified apology to the district court for discharging me, by sending a communication to it, stating "that if he was guilty of obstructing the order of the court in releasing field, he did it ignorantly, not intending any contempt by so doing;" and thereupon the district court ordered that he be released from confinement, and that his fine be remitted.[ ] of course there was great excitement through the town as soon as these proceedings became known. that night nearly all marysville came to my office. i made a speech to the people. afterwards some of them passed in front of turner's house, and gave him three groans. they then dispersed, and in returning home some of them fired off their pistols as a sort of finale to the proceedings of the evening. the firing was not within three hundred yards of turner's house; but he seized hold of the fact of firing, and stated that he had been attacked in his house by an armed mob. he also charged that i had instigated the crowd to attack him, but the facts are as i have stated them. there was a great deal of feeling on the part of the people, who generally sided with me; but i did nothing to induce them to violate the law or disturb the peace. even if i wished to do so, prudence and policy counselled otherwise. when turner caused the names of mulford, goodwin, and myself, to be stricken from the roll of attorneys, we, of course, could no longer appear as counsel in his court. i at once prepared the necessary papers, and applied to the supreme court of the state for a mandamus to compel him to vacate the order and reinstate us. i took the ground that an attorney and counsellor, by his admission to the bar, acquired rights of which he could not be arbitrarily deprived; that he could not, under any circumstances, be expelled from the bar without charges being preferred against him and an opportunity afforded to be heard in his defence; that the proceedings of judge turner being ex-parte, without charges preferred, and without notice, were void; and that a mandate, directing him to vacate the order of expulsion and restore us to the bar, ought to be issued immediately. in addition, to this application, i also moved for a mandamus to him to vacate the order imposing a fine and imprisonment upon me for the alleged contempt of his court, or for such other order in the premises as might be just. i took the ground, that as the order did not show any act committed which could constitute a contempt of court, it was void on its face, and should be so declared. my old friend, gregory yale, assisted me in the presentation of these motions. in deciding them, the court delivered two opinions, in which these positions were sustained. they are reported under the titles of people, ex rel. mulford et al., vs. turner, cal., ; and people, ex rel. field vs. turner, cal., . in the first case, a peremptory writ of mandamus was issued, directed to judge turner, ordering him to reinstate us as attorneys; in the second, a writ of certiorari was issued to bring up the order imposing a fine, which was subsequently reversed and vacated, as shown in ex-parte field, cal., . the opinions referred to were delivered by judge bennett, and are models of their kind. many years afterwards, when a somewhat similar question came before the supreme court of the united states, i was called upon to announce its judgment; and in doing so, i followed these opinions, as may be seen by reference to the case of ex-parte robinson, wallace, . i there repeated substantially the doctrine of judge bennett, which is the only doctrine that will protect an attorney and counsellor from the tyranny of an arbitrary and capricious officer, and preserve to him his self-respect and independence. when the order for our restoration came down from the supreme court, turner refused to obey it; and wrote a scurrilous "address to the public" about us, which he published in one of the newspapers. we replied in a sharp and bitter article, signed by ourselves and five other gentlemen; and at the same time we published a petition to the governor, signed by all the prominent citizens of marysville, asking for judge turner's removal. there was a general impression in those days that judges appointed before the admission of the state into the union held their offices subject to removal by the governor. i hardly know how this impression originated, but probably in some vague notions about the powers of mexican governors. however this may be, such was the general notion, and in accordance with it, a petition for turner's removal was started, and, as i have said, was very generally signed.[ ] the matter had by this time assumed such a serious character, and the judge's conduct was so atrocious, that the people became alarmed and with great unanimity demanded his deposition from office. in the article referred to as published by us, we said, after setting forth the facts, that "judge turner is a man of depraved tastes, of vulgar habits, of an ungovernable temper, reckless of truth when his passions are excited, and grossly incompetent to discharge the duties of his office." unfortunately the statement was perfectly true. he refused to obey the mandate of the supreme court, even talked of setting that court at defiance, and went around saying that every one who had signed an affidavit against him was a "perjured villain," and that as to goodwin, mulford, and field, he would "cut their ears off." he frequented the gambling saloons, associated with disreputable characters, and was addicted to habits of the most disgusting intoxication. besides being abusive in his language, he threatened violence, and gave out that he intended to insult me publicly the first time we met, and that, if i resented his conduct, he would shoot me down on the spot. this being reported to me by various persons, i went to san francisco and consulted judge bennett as to what course i ought to pursue. judge bennett asked if i were certain that he had made such a threat. i replied i was. "well," said the judge, "i will not give you any advice; but if it were my case, i think i should get a shot-gun and stand on the street, and see that i had the first shot." i replied that "i could not do that; that i would act only in self-defence." he replied, "that would be acting in self-defence." when i came to california, i came with all those notions, in respect to acts of violence, which are instilled into new england youth; if a man were rude, i would turn away from him. but i soon found that men in california were likely to take very great liberties with a person who acted in such a manner, and that the only way to get along was to hold every man responsible, and resent every trespass upon one's rights. though i was not prepared to follow judge bennett's suggestion, i did purchase a pair of revolvers and had a sack-coat made with pockets in which the barrels could lie, and be discharged; and i began to practice firing the pistols from the pockets. in time i acquired considerable skill, and was able to hit a small object across the street. an object so large as a man i could have hit without difficulty. i had come to the conclusion that if i had to give up my independence; if i had to avoid a man because i was afraid he would attack me; if i had to cross the street every time i saw him coming, life itself was not worth having. having determined neither to seek him nor to shun him, i asked a friend to carry a message to him, and to make sure that it would reach him, i told different parties what i had sent, and i was confident that they would repeat it to him. "tell him from me," i said, "that i do not want any collision with him; that i desire to avoid all personal difficulties; but that i shall not attempt to avoid him; that i shall not cross the street on his account, nor go a step out of my way for him; that i have heard of his threats, and that if he attacks me or comes at me in a threatening manner i will kill him."[ ] i acted on my plan. i often met him in the streets and in saloons, and whenever i drew near him i dropped my hand into my pocket and cocked my pistols to be ready for any emergency. people warned me to look out for him; to beware of being taken at a disadvantage; and i was constantly on my guard. i felt that i was in great danger; but after awhile this sense of danger had a sort of fascination, and i often went to places where he was, to which i would not otherwise have gone. whenever i met him i kept my eye on him, and whenever i passed him on the street i turned around and narrowly watched him until he had gone some distance. i am persuaded if i had taken any other course, i should have been killed. i do not say turner would have deliberately shot me down, or that he would have attempted anything against me in his sober moments; but when excited with drink, and particularly when in the presence of the lawless crowds who heard his threats, it would have taken but little to urge him on. as it turned out, however, he never interfered with me, perhaps because he knew i was armed and believed that, if i were attacked, somebody, and perhaps more than one, would be badly hurt. i have been often assured by citizens of marysville that it was only the seeming recklessness of my conduct, and the determination i showed not to avoid him or go out of his way, that saved me. but at the same time my business was ruined. not only was i prevented, by his refusal to obey the mandate of the supreme court, from appearing as an advocate, but i could not, on account of the relation i occupied towards him, practice at all; nor could i, under the circumstances, leave marysville and make my intended visit east. having nothing else to do, i went into speculations which failed, and in a short time--a much shorter time than it took to make my money--i lost nearly all i had acquired and became involved in debt. [ ] see exhibit d, in appendix. [ ] see exhibit e, in appendix. [ ] see exhibit f, in appendix. [ ] see exhibit g, in appendix. running for the legislature. one morning about this time i unexpectedly found myself in the newspapers, nominated by my friends as a candidate for the lower house of the legislature. who the friends were that named me i did not know; but the nomination opened a new field and suggested new ideas. i immediately accepted the candidacy. judge turner had threatened, among other things, to drive me into the yuba river. i now turned upon him, and gave out that my object in wishing to go to the legislature was to reform the judiciary, and, among other things, to remove him from the district. i canvassed the county thoroughly and was not backward in portraying him in his true colors. he and his associates spared no efforts to defeat me. their great reliance consisted in creating the belief that i was an abolitionist. if that character could have been fastened upon me it would have been fatal to my hopes, for it was a term of great reproach. yuba county then comprised the present county of that name, and also what are now nevada and sierra counties. it was over a hundred miles in length and about fifty in width, and had a population of twenty-five thousand people, being the most populous mining region in the state. i visited nearly every precinct and spoke whenever i could get an audience. an incident of the canvass may not be uninteresting. i went to the town of nevada a little more than a week before the election. as i was riding through its main street a gentleman whom i had long known, general john anderson, hailed me, and, after passing a few words, said, "field, you won't get fifty votes here." i asked, "why not?" he replied, "because everybody is for mccarty, your opponent." i said, somewhat sharply, "anderson, i have come here to fight my own battle and i intend to carry nevada." he laughed and i rode on. the first man i met after reaching the hotel was captain morgan, who afterwards commanded a steamer on the bay of san francisco. after talking for some time on general topics, he asked me about a story in circulation that i was an abolitionist. i saw at once the work of enemies, and i now understood the meaning of general anderson's remark. i assured morgan that the story was entirely false, and added; "to-morrow will be sunday; everybody will be in town; i will then make a speech and show the people what kind of a man i am, and what my sentiments are on this and other subjects." accordingly, the next day, in the afternoon, when the miners from the country were in town and had nothing else to do than to be amused, i mounted a platform erected for the purpose in the main street, and commenced speaking. i soon had a crowd of listeners. i began about my candidacy, and stated what i expected to do if elected. i referred to the necessity of giving greater jurisdiction to the local magistrates, in order that contests of miners respecting their claims might be tried in their vicinity. as things then existed the right to a mule could not be litigated without going to the county seat, at a cost greater than the value of the animal. i was in favor of legislation which would protect miners in their claims, and exempt their tents, rockers, and utensils used in mining from forced sale. i was in favor of dividing the county, and making nevada the seat of the new county. i had heard of numerous measures they wanted, and i told them how many of these measures i advocated. having got their attention and excited their interest, i referred to the charge made against me of being an abolitionist, and denounced it as a base calumny. in proof of the charge i was told that i had a brother in new york who was a free-soiler. so i had, i replied, and a noble fellow he is--god bless him wherever he may be. but i added, i have another brother who is a slaveholder in tennessee, and with which one, i asked, in the name of all that is good, were they going to place me. i wondered if these "honorable" men, who sought by such littleness to defeat me, did not find out whether i did not have some other relatives,--women, perhaps, who believed in things unearthly and spiritual,--whose opinions they could quote to defeat me. shame on such tactics, i said, and the crowd answered by loud cheering. i then went on to give my views of our government, of the relation between the general government of the union and the government of the states, to show that the former was created for national purposes which the states could not well accomplish--that we might have uniformity of commercial regulations, one army and one navy, a common currency, and the same postal system, and present ourselves as one nation to foreign countries--but that all matters of domestic concern were under the control and management of the states, with which outsiders could not interfere; that slavery was a domestic institution which each state must regulate for itself, without question or interference from others. in other words, i made a speech in favor of state rights, which went home to my hearers, who were in great numbers from the south. i closed with a picture of the future of california, and of the glories of a country bounded by two oceans. when i left the platform the cheers which followed showed that i had carried the people with me. mccarty, my opponent, followed, but his speech fell flat. half his audience left before he had concluded. the election took place a week from the following monday. i remained in nevada until it was over. at the precinct in town where i had spoken, i had between three and four hundred majority, and in another precinct in the outskirts i had a majority of two to one. in the county generally i ran well, and was elected, notwithstanding the fact that i was not the nominee of any convention or the candidate of any party. the morning following the election, as i was leaving nevada, i rode by the store of general anderson, and hailing him, inquired what he thought now of my getting fifty votes in the town. "well," he replied, "it was that sunday speech of yours which did the business. mccarty could not answer it." there was one thing in the election which i regretted, and that was that i did not carry marysville; a majority of the votes of its citizens was cast for my opponent. it is true that there the greater number of gamblers and low characters of the county were gathered, but the better class predominated in numbers, and i looked with confidence to its support. my regret, however, was sensibly diminished when i learned the cause of the failure of a portion of the people to give me their votes. some few weeks previous to the day of election a man was killed in the street by a person by the name of keiger, who was immediately arrested. the person killed was about leaving the state, and owed a small debt to keiger, which he refused either to pay or to give security for its payment. exasperated by his refusal, keiger drew a pistol and shot him. i was sent for by an acquaintance of keiger to attend his examination before the local magistrate, by whom he was held for the action of the grand jury. in the afternoon of the same day a large crowd assembled in the streets, with the purpose of proceeding to the summary execution of keiger. whilst the people were in a great state of excitement i made a speech to them, begging them not to resort to violence and thus cast reproach upon the good name of marysville, but to let the law take its course, assuring them that justice would certainly be administered by the courts. my remarks were received with evident displeasure, and i am inclined to think that violence would have been resorted to had not the prisoner been secretly removed from the city and taken to sacramento. the exasperation of a large number, at this escape of their intended victim, vented itself on me, and cost me at least a hundred votes in the city. i would not have acted otherwise had i known beforehand that such would be the result of my conduct. when the civil tribunals are open and in the undisturbed exercise of their jurisdiction, a resort to violence can never be approved or excused. i witnessed some strange scenes during the campaign, which well illustrated the anomalous condition of society in the county. i will mention one of them. as i approached grass valley, then a beautiful spot among the hills, occupied principally by mr. walsh, a name since become familiar to californians, i came to a building by the wayside, a small lodging-house and drinking-saloon, opposite to which a lynch jury were sitting, trying a man upon a charge of stealing gold dust. i stopped and watched for awhile the progress of the trial. on an occasion of some little delay in the proceedings, i mentioned to those present, the jury included, that i was a candidate for the legislature, and that i would be glad if they would join me in a glass in the saloon, an invitation which was seldom declined in those days. it was at once accepted, and leaving the accused in the hands of an improvised constable, the jury entered the house and partook of the drinks which its bar afforded. i had discovered, or imagined from the appearance of the prisoner, that he had been familiar in other days with a very different life from that of california, and my sympathies were moved towards him. so, after the jurors had taken their drinks and were talking pleasantly together, i slipped out of the building and approaching the man, said to him, "what is the case against you? can i help you?" the poor fellow looked up to me and his eyes filled with great globules of tears as he replied. "i am innocent of all i am charged with. i have never stolen anything nor cheated any one; but i have no one here to befriend me." that was enough for me. those eyes, filled as they were, touched my heart. i hurried back to the saloon; and as the jurors were standing about chatting with each other i exclaimed, "how is this? you have not had your cigars? mr. bar-keeper, please give the gentlemen the best you have; and, besides, i added, let us have another 'smile'--it is not often you have a candidate for the legislature among you." a laugh followed, and a ready acceptance was given to the invitation. in the meantime my eyes rested upon a benevolent-looking man among the jury, and i singled him out for conversation. i managed to draw him aside and inquired what state he came from. he replied, from connecticut. i then asked if his parents lived there. he answered, with a faltering voice, "my father is dead; my mother and sister are there." i then said, "your thoughts, i dare say, go out constantly to them; and you often write to them, of course." his eyes glistened, and i saw pearl-like dew-drops gathering in them; his thoughts were carried over the mountains to his old home. "ah, my good friend," i added "how their hearts must rejoice to hear from you." then, after a short pause, i remarked, "what is the case against your prisoner? he, too, perhaps, may have a mother and sister in the east, thinking of him as your mother and sister do of you, and wondering when he will come back. for god's sake remember this." the heart of the good man responded in a voice which, even to this day--now nearly twenty-seven years past--sounds like a delicious melody in my ears: "i will do so." passing from him i went to the other jurors, and, finding they were about to go back to the trial, i exclaimed, "don't be in a hurry, gentlemen, let us take another glass." they again acceded to my request, and seeing that they were a little mellowed by their indulgence, i ventured to speak about the trial. i told them that the courts of the state were organized, and there was no necessity or justification now for lynch juries; that the prisoner appeared to be without friends, and i appealed to them, as men of large hearts, to think how they would feel if they were accused of crime where they had no counsel and no friends. "better send him, gentlemen, to marysville for trial, and keep your own hands free from stain." a pause ensued; their hearts were softened; and, fortunately, a man going to marysville with a wagon coming up at this moment, i prevailed upon them to put the prisoner in his charge to be taken there. the owner of the wagon consenting, they swore him to take the prisoner to that place and deliver him over to the sheriff; and to make sure that he would keep the oath, i handed him a "slug," a local coin of octagonal form of the value of fifty dollars, issued at that time by assayers in san francisco. we soon afterwards separated. as i moved away on my horse my head swam a little, but my heart was joyous. of all things which i can recall of the past, this is one of the most pleasant. i believe i saved the prisoner's life; for in those days there was seldom any escape for a person tried by a lynch jury. the expenses of the election were very great. it was difficult to interest the miners in it; most of them had come to the country in the hope of improving their fortunes in one or two years, and then returning to "the states." it was, therefore, a matter of little moment to them who were chosen members of the coming legislature. party lines were not regarded among them, and party questions could not draw many of them from their labors. as i was an independent candidate, not supported by any party, i had to bear the whole expenses of the campaign. how great those expenses were may be imagined from the following bill, one of a large number sent to me after the election. i had told the saloon-keepers in the vicinity of the polling places in the different precincts to be liberally disposed towards my friends on the day of election. they took me literally at my word, as this bill from the keeper of a saloon where the polls were opened in downieville precinct will show: mr. s.j. field, to orleans house. to drinks................................ $ cigars................................ ------ downieville, _october th, _. $ [endorsed:] "we hereby certify that the within account is correct. "p.l. moore. "wm. s. spear." "received payment of the within bill in full from stephen j. field. "j. stratman. "_october th, _." the turner controversy continued it was not until after my election that judge turner paid any attention to the mandate of the supreme court commanding him to vacate his order of expulsion against myself and messrs. goodwin and mulford, and to restore us to the bar. the mandate was issued on the fourth of july, and was served on the judge on the sixteenth. he immediately and publicly declared that he would not obey it, but would stand an impeachment first. whilst attending the supreme court on the application for the writ, mr. goodwin, mr. mulford, and myself, were admitted as attorneys and counsellors of that court, and that admission under its rules entitled us to practice in all the courts of the state. the effect of this, which re-instated us in the district court, he determined to defeat. he accordingly directed the sheriff of the county to notify us to show cause, before the court in sutter county, why we should not be again expelled from the bar for the publication of the article in the placer times, to which i have referred, written in reply to his attack on us in his "address to the public." the order was dated on the fourth of october, and was served on the eighth, and required us to appear on the first thursday of the month, which was the third. as the time for appearance was previous to the day of service and to the date of the order, no attention was paid to it. the judge, however, proceeded, and on the eleventh of the month made another order of expulsion. after the adjournment of the court, he discovered his blunder, and at once issued another direction to the sheriff to notify us that the last order of expulsion was suspended until the twenty-eighth of october, and to show cause on that day why we should not be again expelled. in the meantime, the judge made no concealment of his purposes, but publicly declared in the saloons of the town that if we did not appear upon this second notice, he would make an order for our expulsion, and if we did appear, he would expel us for contempt in publishing the reply to his article, which he termed a false and slanderous communication. we knew, of course, that it would be useless to appear and attempt to resist his threatened action; still we concluded to appear and put in an answer. accordingly, on the day designated, we presented ourselves before the court in sutter county. i was the first one called upon to show cause why i should not be again expelled. i stated that i was ready, and first read an affidavit of one of the associate justices of the court of sessions, to show that the judge had declared his purpose to expel myself and the other gentlemen in any event, and that it was an idle ceremony to call upon us to show cause against such threatened action. as soon as it was read, the judge declared that it was not respectful and could not be received. i then began to read my answer to the order to show cause, but was stopped when i had read about one half of it, and was told that it was not respectful and could not be received. i then requested permission to file it, but my request was refused. mr. mulford being called upon to show cause why he should not be expelled, began to read an answer, but was stopped after reading a few lines. his answer was respectful, and was substantially to the effect that he had been admitted as attorney and counsellor in the supreme court on the previous july, and was thus entitled to practice in all the courts of the state; that the communication in the placer times was written in reply to an article of the judge, and that he was ready at the proper time and place to substantiate its truth; and he protested against the judge's interfering in the matter in the manner indicated in the notice. mr. goodwin being called upon, took in his answer substantially the same grounds as mr. mulford. immediately after mr. goodwin took his seat, without a moment's hesitation, the judge made an order that his previous order of the eleventh of october, expelling us, should be confirmed, and that the order should be published in the sacramento times and the san francisco herald. i immediately took the proper steps to obtain another mandate from the supreme court to vacate this second expulsion; and also to attach the judge for non-compliance with the original mandate, the first order of expulsion still being unvacated on the records of the court. at the january term, , the applications to the court in both cases were decided, and they are reported in the st california reports, at pages and . in the attachment case, the court denied the application on the ground that no motion had been made by us or any one on our behalf to cause the original order of expulsion to be vacated, and that the judge had, in the proceedings to expel us, substantially recognized us as re-instated. in the other case, the court decided that the proceedings to re-expel us were irregular, and directed an alternative writ to issue, commanding the judge to vacate the order and to permit us to practice in all the courts of the district, or to show cause to the contrary, at the next term. no cause was ever shown; and thus ended the attempts of an ignorant, malicious, and brutal judge to keep us out of the profession of our choice. mr. goodwin has since held many positions of honor and trust in the state. he was elected district attorney at the same time that i was elected to the legislature, and afterwards was judge of yuba county, and is now ( ) a member of the state senate. mr. mulford was afterwards and until his death a successful practitioner at the bar of marysville, and was in all the affairs of life respected as a high-spirited and honorable man. but with judge turner i have not yet done. i have a long story still to relate with respect to him. after my election to the legislature was ascertained, he became exceedingly solicitous to prevent in advance my exerting any influence in it. he expected that i would attack him, and endeavor to secure his impeachment, and he wanted to break me down if possible. he accordingly published a pamphlet purporting to be a statement of the charges that i preferred against him, which was, however, little else than a tirade of low abuse of myself and the editor of the marysville herald, in the columns of which the conduct of the judge had been the subject of just criticism and censure. there was nothing in the miserable swaggering billingsgate of the publication which merited a moment's notice, but as in one passage he stated that he had attempted to chastise me with a whip, and that i had fled to avoid him, i published in the marysville herald the following card: a card. judge william e. turner, in a "statement" published over his signature on the th instant, asserts that he attempted to chastise me with a switch, and that i fled to avoid him. this assertion is a _shameless lie_. i never, to my recollection, saw judge turner with a switch or a whip in his hand. he has made, as i am informed, many threats of taking personal vengeance on myself, but he has never attempted to put any of them into execution. i have never avoided him, but on the contrary have passed him in the street almost every day for the last four months. when he attempts to carry any of his threats into execution, i trust that i shall not forget, at the time, what is due to myself. judge turner says he holds himself personally responsible in and under all circumstances. this he says _in print_; but it is well understood in this place that he has stated he should feel bound by his oath of office to endeavor to obtain an indictment against any gentleman who should attempt to call him to account. shielded behind his oath of office he has displayed his character by childish boasts of personal courage and idle threats of vengeance. stephen j. field. marysville, _dec. st, _. there were also annexed to the publication of turner, letters from different persons expressive of their opinion of his general bearing on the bench and courtesy to them. among these was one from john t. mccarty, the candidate against me at the recent election, in which he spoke in high terms of the judge's conduct on the bench, and assailed me as his calumniator, applying to me sundry coarse epithets. in answer to this letter i published in the herald the following card: john t. mccarty. john t. mccarty, in a letter to judge william e. turner, dated the d of november, takes occasion to apply several vile epithets to myself, and uses the following language to judge turner: "having been present at the first term of your court ever held in this district, and most of your courts since that time, and being familiar with almost every decision and your entire conduct upon the bench, i take pleasure in saying that i never have practiced before any court where there was so great a dispatch of business, so much order and general satisfaction rendered by the rules and decisions of the court, and that, notwithstanding the base denunciations of your enemies, a large majority of the people who have attended your courts approve and sustain your positions and decisions." during the session of the district court, at its first term, this same john t. mccarty was called before the county judge to give his testimony on the return of a writ of _habeas corpus_, and then he testified "_that the conduct of judge turner on the bench was the most outrageous he had ever witnessed in any court in which he had practiced;" and the tenor and effect of his whole testimony was in the highest degree condemnatory of the conduct of judge turner_. one of two things follows: if the statement in the letter be true, then john t. mccarty was guilty of perjury before the county judge; but if he testified to the truth, then his statement in the letter is false. in the one case he is a liar and in the other a perjured scoundrel. thus convicted out of his own mouth, his vile epithets respecting myself are not worth a moment's consideration. stephen j. field. marysville, _dec. st, _. on my return from the legislature, and afterwards, this same mccarty was in my presence the most abject and humble wretch i knew in marysville. he almost piteously begged recognition by me, and was ready to go down on his knees for it. he was a blustering miscreant, full of courage where no force was required, and ready to run at the first appearance of a fight. he was one of a class, all of whom are alike, in whom bluster, toadyism, and pusillanimity go in concert, and are about equally developed in degree. life in the legislature immediately after the election i commenced the preparation of a bill relating to the courts and judicial officers of the state, intending to present it early in the session. the legislature met at san jose on the first monday of january, , and i was placed on the judiciary committee of the house. my first business was to call the attention of the committee to the bill i had drawn. it met their approval, was reported with a favorable recommendation, and after a full discussion was passed. its principal provisions remained in force for many years, and most of them are retained in the code, which went into effect in january, . it created eleven judicial districts and defined the jurisdiction and powers of every judicial officer in the state, from a supreme judge to a justice of the peace. it provided that the then incumbent district judges should continue to be the judges of the new districts according to their respective numbers. at the same time i introduced a bill dividing the county of trinity, and creating that of klamath; and also a bill dividing the county of yuba, and creating that of nevada; and i so arranged it that out of trinity and klamath a new eighth judicial district was created, and out of yuba, nevada, and sutter a tenth judicial district. thus turner, being judge of the eighth district, was sent to the then comparative wilderness of trinity and klamath; and the tenth district was to have a new judge. after this bill was passed i presented petitions from the citizens of yuba county, and of that part which now constitutes nevada county, praying for the impeachment of turner, and his removal from office, charging as grounds for it his incompetency from ignorance to discharge its duties, his arbitrary and tyrannical conduct towards the county judge and members of the marysville bar, the particulars of which i have related, his contemptuous treatment of the writ of _habeas corpus_, and his general immoral conduct. a committee was thereupon appointed to which the petitions were referred, with power to send for persons and papers. the testimony taken by them fully established the charges preferred. indeed, there was no serious attempt made to refute them. the only evidence offered in behalf of the judge was that of a few persons who testified that they had been treated by him with courtesy in some instances and that good order had been maintained in court when they were present. there is no doubt that the impeachment would have been ordered but for a strong desire of the members to bring the session to a close, and a report which had obtained credence, that after the passage of the court bill, by which turner was sent out of the eighth district, i was content to let the question of impeachment be indefinitely postponed. the testimony taken was reported by the committee on the th of april. his impeachment would have required a trial by the senate, which would have prolonged the session at least a month, and to this members were much averse. parties came to me and said, "judge, what's the use of pressing this matter. you have sent turner where there are only grizzly bears and indians; why not let him remain there? he can do no harm there." i replied that he was not fit to be a judge anywhere, and i refused assent to a postponement of the matter. afterwards, when the vote was about to be taken, a senator and a personal friend of turner, misinterpreting some expressions of mine that i desired to bring the matter to a speedy close, privately stated to members of the house that i had declared myself satisfied by the passage of the court bill and was willing to let the impeachment be dropped, it being understood that this course would not be taken as a sanction of the judge's conduct. to my astonishment, members who had said only half an hour before that they should vote for the impeachment now voted for an indefinite postponement, which was carried by three votes--fifteen to twelve. i did not vote, and three members who strongly favored the impeachment were absent at the time. seven of the members who voted for the indefinite postponement afterwards informed me that they had done so under the impression that such a disposition of the matter would be satisfactory to me, and that if a direct vote had been taken on the charges they should have voted for the impeachment. here the matter ended; i did not pursue it. turner did not go back to marysville and i had no further trouble with him.[ ] to understand fully the legislation with which i was connected, and its effect upon the state, one must be familiar with the history of the country and the condition of its people. in addition to the act concerning the courts and judicial officers referred to, i took up the code of civil procedure, as reported by the commissioners in new york, remodelled it so as to adapt it to the different condition of things and the different organization of the courts in california, and secured its passage. it became what was known as the california civil practice act, and was afterwards adopted in nevada and in the territories west of the rocky mountains. i also took up the code of criminal procedure, as reported by the same commissioners, and remodelled that in the same way and secured its passage. it constituted what was afterwards known as the california criminal practice act, and was also adopted in the state and territories mentioned. the amount of labor bestowed upon these acts will be appreciated when i state that i recast, in the two, over three hundred sections, and added over one hundred new ones. i devoted so much attention and earnestness to the work, that in a short time the legislature placed implicit confidence in everything relating to the judiciary which i recommended. the criminal practice act, for instance, remodelled as stated, consisting of over six hundred sections, was never read before the legislature at all. the rules were suspended and the bill read by its title and passed. when it came before the governor, on the last day of the session, he said he could not sign it without reading it, and it was too late for him to do that. i represented to him that its passage was essential to secure the harmonious working of laws already passed. turning to me he said, "you say it is all right?" i replied, "yes;" and thereupon he signed it. i have already stated that i moved turner's impeachment. after the testimony was taken i addressed the house upon the subject. in reply to my remarks a member, by the name of b.f. moore, from tuolumne county, took occasion to make an abusive attack on me. it was the common practice in those days to go armed. of the thirty-six members of which the assembly then consisted, over two-thirds never made their appearance without having knives or pistols upon their persons, and frequently both. it was a thing of every-day occurrence for a member, when he entered the house, before taking his seat, to take off his pistols and lay them in the drawer of his desk. he did it with as little concern and as much a matter of course, as he took off his hat and hung it up. nor did such a thing excite surprise or comment. but when mr. moore rose to reply to me, he first ostentatiously opened his drawer, took out his revolvers, cocked them, and laid them in the open drawer before him. he then launched out into a speech of the most opprobrious language, applying to me offensive epithets, and frequently interspersing his remarks with the declaration that he was responsible for what he said, both there and elsewhere. it is difficult for me to describe the indignation i felt at this outrageous assault and the manner in which it was made. its very fierceness made me calm, as it is said that a tempest at sea is sometimes so violent as to still the waves. so when i came to make my rejoinder, i answered only such portions of his speech as attempted argument, and made no allusion to the personal language he had used towards me. but as soon as the vote was had on the question of postponing the impeachment, i took measures to call him to account. for this purpose i applied to mr. samuel a. merritt, a member from mariposa county, to carry a note from me to him, calling upon him to apologize for his offensive conduct or give me the satisfaction which it was understood one gentleman had the right to demand from another. at that time it was generally supposed that the constitutional provision in regard to duelling was self-operative, and that any person who either sent or accepted a challenge, or acted as a second to one who thus offended, would _ipso facto_ be disqualified from afterwards holding any public office. upon this understanding of the law, mr. merritt, with many expressions of regard for me and regret at the law, declined to carry the note. i then applied to mr. richardson, also a member, but he declined for the same reason. i was afraid, as matters stood, that i could not get anybody to act for me, and i did not know to whom to apply or what to do. whilst thinking the matter over, i happened, about nine o'clock in the evening, to walk into the senate chamber, and there found mr. david c. broderick, afterwards united states senator, sitting at his desk writing. he was at that time president _pro tem._ of the senate. i had known him for some time, but not intimately; we were merely bowing acquaintances. as i entered he looked up and said, "why, judge, you don't look well, what is the matter?" i answered that i did not feel well, for i had not a friend in the world. he replied, "what is it that worries you?" i then related to him everything that had happened, giving the particulars of the gross and violent assault upon my character, and stated that i was determined, at all hazards, to call moore to account. mr. broderick, without hesitation, said, "my dear field, i will be your friend in this matter; go and write at once a note to moore, and i will deliver it myself." i accordingly sat down at an adjoining desk and wrote him a note, the purport of which was that i required him either to make a public retraction of his insulting language in the legislature, or to give me the satisfaction i had a right to demand. broderick approved of its terms and at once proceeded to deliver it. when he called on moore and presented it, the latter said he expected to be a candidate for congress before the coming convention, and he could not accept a challenge because it would disqualify him under the constitution from holding the office. but at the same time he observed that he was willing to meet me at any time and place; in other words, that he had no objection to a street fight. broderick replied that a street fight was not exactly the thing among gentlemen; but that if moore would do no better, a street fight there should be; and thereupon named a time and place when and where i would be found the next morning. within an hour afterwards moore changed his mind, and informed mr. broderick that drury baldwin, another member of the house, would act as his friend, and give a reply to my note the next morning. in anticipation of a possible collision, mr. broderick took me out early the following morning to try my skill in the use of a pistol. i tried a navy revolver and succeeded in hitting a knot on a tree, at a distance of thirty yards, three times out of five. broderick declared himself satisfied, and i then urged upon him the necessity of bringing the matter to a speedy issue. in all this he concurred, and before the meeting of the house, called upon baldwin for an answer to my note. baldwin replied that his principal had made up his mind to do nothing further in the matter. "then," said broderick, "as soon as the house meets, judge field will arise in his seat and refer to the attack on him and to the language of moore, that he held himself responsible for what he said, and state that respect for the dignity of the house had prevented him from replying to the attack at the time in the terms it deserved; that he had since demanded satisfaction of moore for his language, and that moore had refused to respond, and will thereupon pronounce him a liar and a coward." "then," said baldwin, "judge field will get shot in his seat." "in that case," rejoined broderick, "there will be others shot too." mr. broderick soon afterwards informed me of his conversation with baldwin, and asked me if i would act as he had stated i would. "most certainly," i replied; "never fear for me; i will meet the case as it should be met." accordingly, when the house opened, i took my seat at my desk as usual. looking around i saw that broderick was seated near me, and behind him were eight or nine of his personal friends, all armed to the teeth and ready for any emergency. in the meantime, and just before the house met, general john e. addison, who had found out what was going on and knew the seriousness of the affair, called on moore, who was his friend, and urged him to retract what he had said and make a suitable apology, and for that purpose drew up a document for him to read to the house, but of this i was not at the time informed. as soon as the journal was read i rose in my seat and said, "mr. speaker." at the same moment moore rose in his seat and said, "mr. speaker." the speaker recognized moore first; and moore thereupon proceeded to read the written apology prepared by addison for his conduct and language to me. it was full, ample, and satisfactory; and of course with that the matter ended. from that time forward to the end of the session i had no further trouble with any one. [ ] see exhibit h, in appendix. friendship for david c. broderick. the narrative which i have given of my difficulty with moore explains how broderick befriended me at a very trying time. but that was not the only occasion on which he befriended me. when i came to san francisco after the adjournment of the legislature, in may, , i went several times to see him at the hotel where he stopped. on one occasion in the evening, while we were in the saloon of the hotel, he asked me to take a glass of wine with him. we stepped up to the bar and were about drinking, when he suddenly threw himself before me and with great violence pushed me out of the room. the proceeding was so sudden and unexpected that i was astonished and for a moment indignant. i demanded an explanation, saying "what does this mean, mr. broderick?" he then told me that while we were standing at the bar he had noticed vi.--or to give his full name, vicesimus--turner, a brother of the judge, a man of desperate character, come into the bar-room, throw back his spanish cloak, draw forth a navy revolver, and level it at me. seeing the movement, he had thrown himself between me and the desperado and carried me off. these good offices on the part of mr. broderick filled me with a profound sense of gratitude. for years afterwards i thought and felt as if there was nothing i could do that would be a sufficient return for his kindness. on his account i took much greater interest in political matters than i otherwise should. in order to aid him in his aspirations for election to the united states senate, upon which he had set his heart, i attended conventions and gave liberally, often to my great inconvenience, to assist the side to which he belonged. to many persons it was a matter of surprise that i should take such an interest in his success and through good and evil report remain so constant and determined in my support of him; but the explanation lies in the circumstances i have narrated and the brave manner in which he had stood by me in a most critical moment of my life. i regret to state that this friendship was ever broken. it was not by me; but broken it was. shortly after mr. broderick was elected to the senate, he quarrelled with mr. buchanan over appointments to office in california; and when he returned to the state, he expressed a good deal of hostility to the administration. in that hostility i did not participate, and he complained of me for that reason. i was then spoken of throughout the state as a probable candidate for the bench, and he announced his opposition to my nomination. i made no complaints of his conduct, but was much hurt by it. my nomination and election soon afterwards removed me from the sphere of politics. i seldom met him after my election, and never had any conversation with him. though he was offended at my failure to take sides with him in his controversy with the president, and our intimacy ceased, i could never forget his generous conduct to me; and for his sad death there was no more sincere mourner in the state. legislation secured and beginning a new life. my legislative career was not without good results. i drew, as already stated, and carried through the legislature a bill defining the powers and jurisdiction of the courts and judicial officers of the state; and whilst thus doing good, i also got rid of the ignorant and brutal judge of our district who had outraged my rights, assaulted my character, and threatened my life. i also, as i have mentioned, introduced bills regulating the procedure in civil and criminal cases, remodelled with many changes from the codes of civil and criminal procedure reported by the commissioners of new york; and secured their passage. in the civil practice act i incorporated provisions making the most liberal exemptions from forced sale of the personal property of a debtor, including not merely a limited amount of household furniture, and provisions sufficient for individual or family use for one month, but also the instruments or tools by which he earned his livelihood. the exemptions embraced necessary household and kitchen furniture, wearing apparel, beds and bedding of the debtor, whatever his calling; and also the farming utensils and implements of husbandry of the farmer, two beasts of burden employed by him, and one cart or wagon; the tools and implements of a mechanic or artisan necessary to carry on his trade; the instruments and chests of a surgeon, physician, surveyor, and dentist; the law libraries of an attorney and counsellor; the cabin or dwelling of a miner, and his pick, rocker, wheelbarrow, and other implements necessary to carry on mining operations; two oxen, two horses or two mules and their harness, and one cart or wagon of the cartman, hackman, or teamster; and one horse with vehicle and harness and other equipments used by a physician, surgeon, or minister of the gospel in making his professional visits; and all arms and accoutrements required by law to be kept by any person. i never could appreciate the wisdom of that legislation which would allow a poor debtor to be stripped of all needed articles of his household and of the implements by which alone he could earn the means of supporting himself and family and of ultimately discharging his obligations. it has always seemed to me that an exemption from forced sale of a limited amount of household and kitchen furniture of the debtor, and of the implements used in his trade or profession, was not only the dictate of humanity, but of sound policy. i also incorporated a provision into the civil practice act respecting suits for mining claims, which was the foundation of the jurisprudence respecting mines in the country. the provision was that in actions before magistrates for such claims, evidence should be admitted of the usages, regulations, and customs prevailing in the vicinity, and that such usages, regulations, and customs, when not in conflict with the constitution and laws of the state, or of the united states, should govern the decision of the action. at this time suits for mining claims, the mines being confessedly on the property of the united states, were brought upon an alleged forcible or unlawful detainer. this rule, thus for the first time adopted by legislative enactment, was soon extended to actions for such claims in all courts, and has since been adopted in all the states and territories west of the rocky mountains and substantially by the legislation of congress. simple as the provision is, it solved a difficult problem. i also advocated and aided the passage of the homestead exemption bill. that bill was introduced by mr. g.d. hall, a member from el dorado, and now a resident of san francisco. it provided for an exemption of the homestead to the value of $ , . an effort was made to reduce the amount to $ , , and i think i rendered some aid in defeating this reduction, which has always been to me a source of great gratification. i also secured the passage of an act concerning attorneys and counsellors-at-law, in which i incorporated provisions that rendered it impossible for any judge to disbar an attorney in the arbitrary manner in which judge turner had acted towards me, without notice of the charges against him and affording him an opportunity to be heard upon them. i also introduced a bill creating the counties of nevada and klamath, the provisions of which were afterwards incorporated into a general bill which was passed, dividing the state into counties and establishing the seats of justice therein, and by which also the county of placer was created. i drafted and secured the passage of an act concerning county sheriffs, in which the duties and responsibilities of those officers, not only in the execution of process and the detention of prisoners, but as keepers of the county jail, were declared and defined; also an act concerning county recorders, in which the present system of keeping records was adopted. this latter act, though drawn by me, was introduced by mr. merritt, of mariposa, but he does not hesitate to speak publicly of my authorship of it. i also prepared a bill concerning divorces, which was reported from the judiciary committee as a substitute for the one presented by mr. carr, of san francisco, and was passed. in this act, aside from the ordinary causes of adultery, and consent obtained by force or fraud, for which divorces are granted, i made extreme cruelty and habitual intemperance, wilful desertion of either husband or wife for a period of two years, and wilful neglect of the husband to provide for the wife the common necessaries of life, having the ability to provide the same, for a period of three years, also causes of divorce. i also drew the charters of the cities of marysville, nevada, and monterey, which were adopted--that of monterey being reported by the judiciary committee as a substitute for one introduced by a member from that district. other bills drawn or supported by me were passed, the provisions of which are still retained in the laws of the state. but notwithstanding all this, when i turned my face towards marysville i was, in a pecuniary sense, ruined. i had barely the means to pay my passage home. my ventures, after my expulsion from the bar, in june, , had proved so many maelstroms into which the investments were not only drawn but swallowed up. my affairs had got to such a pass that before i left marysville for the legislature i felt it to be my duty to transfer all my real property to trustees to pay my debts, and i did so. and now when i stepped upon the landing in marysville my whole available means consisted of eighteen and three-quarter cents, and i owed about eighteen thousand dollars, the whole of which bore interest at the rate of ten per cent. a month. i proceeded at once to the united states hotel, kept by a mr. peck, who had known me in the days of my good fortune. "my dear mr. peck," i said, "will you trust me for two weeks' board?" "yes," was the reply, "and for as long as you want." "will you also send for my trunks on the steamer, for i have not the money to pay the carman." "certainly," the good man added, and so the trunks were brought up. on the next day i looked around for quarters. i found a small house, thirty feet by sixteen, for an office, at eighty dollars a month, and took it. it had a small loft or garret, in which i placed a cot that i had purchased upon credit. upon this cot i spread a pair of blankets, and used my valise for a pillow. i secured a chair without a back for a wash-stand, and with a tin basin, a pail, a piece of soap, a toothbrush, a comb, and a few towels, i was rigged out. i brought myself each day the water i needed from a well near by. i had an old pine table and a cane-bottomed sofa, and with these and the bills which had passed the legislature, corrected as they became laws, and the statutes of the previous session, i put out my sign as an attorney and counsellor-at-law, and began the practice of my profession. soon afterwards i found my name mentioned as a candidate for the state senate. the idea of returning to the legislature as a senator pleased me. the people of the county seemed to favor the suggestion. accordingly i made a short visit to neighboring precincts, and finding my candidacy generally approved i went to work to make it successful. at the election of delegates to the county convention, which was to nominate candidates, a majority was returned in my favor. several of them being unable to attend the convention, which was to be held at downieville, a distance of about seventy miles from marysville, sent me their proxies made out in blank to be filled with the name of any one whom i might designate. to one supposed friend i gave ten proxies, to another five, and to a third two. when the members met, just previous to the assembling of the convention, it was generally conceded that i had a majority of the delegates. but i had a new lesson in manipulation to learn. just before the opening of the convention my supposed friend, who had the ten proxies, was approached by the other side, and by promises to give the office of sheriff to his partner--an office supposed to be worth thirty thousand a year--his ten votes were secured for my opponent. the one to whom i had given five proxies was promised for those votes the county judgeship. so when the convention voted, to my astonishment and that of my friends, fifteen of my proxies were cast for my opponent, joseph c. mckibbin, afterwards a member of congress, who acted so fearlessly when the kansas question came up. i was accordingly beaten by two votes. for the moment i was furious, and hunted up the man who had held my ten proxies, and had been seduced from my support. when i found him in the room of the convention, i seized him and attempted to throw him out of the window. i succeeded in getting half his body out, when bystanders pulled me back and separated us. this was fortunate for both of us; for just underneath the window there was a well or shaft sunk fifty feet deep. the following morning i left downieville, returned to my office and loft at marysville, and gave my attention to the practice of the law. my business soon became very large; and, as my expenses were moderate, within two years and a half i paid off all my indebtedness, amounting with the accumulations of interest to over thirty-eight thousand dollars. part of this amount was paid by a surrender of the property mortgaged, or a sale of that previously assigned, but the greater part came from my earnings. i paid every creditor but one in full; to each i gave his pound of flesh, i mean his interest, at ten per cent. a month. i never asked one of them to take less than the stipulated rate. the exceptional creditor was mr. berry, a brother lawyer, who refused to receive more than five per cent. a month on a note he held for $ . by this time i had become so much interested in my profession as to have no inclination for office of any kind. on several occasions i was requested by influential party leaders to accept a nomination for the state senate, but i refused. i am inclined to think that i had for some time a more lucrative practice than any lawyer in the state, outside of san francisco. no such fees, however, were paid in those days as have been common in mining cases since the discovery of the silver mines of nevada and the organization of great corporations to develop them. the bar of marysville during this period, and afterwards while i remained in that city--which was until october, --was a small, but a very able body of men. many of its members have since attained distinction and held offices of honor and trust. richard s. mesick, who settled there in , became a state senator, and after his removal to nevada, a district judge of that state. he ranks now among the ablest lawyers of the coast. charles h. bryan, who settled there the same year, was an eloquent speaker, and in his forensic contests gave great trouble to his opponent whenever he got at the jury. he was on the supreme court of the state for a short period, under the appointment of governor bigler. jesse o. goodwin, of whom i have already spoken, settled in marysville in . he was a ready speaker, and sometimes rose to genuine eloquence. he was distinguished in criminal cases. as already stated, he was elected district attorney in , and afterwards became county judge, and is now state senator. gabriel n. swezy, who settled there in , was learned in his profession, and quick of apprehension. few lawyers could equal him in the preparation of a brief. he afterwards at different times represented the county in the assembly and the senate of the state. william walker, who afterwards figured so conspicuously in the filibustering expeditions to nicaragua, and was called by his followers "the grey-eyed man of destiny," had an office in marysville in and ' . he was a brilliant speaker, and possessed a sharp but not a very profound intellect. he often perplexed both court and jury with his subtleties, but seldom convinced either. john v. berry, who came to marysville from the mines in , was a fine lawyer, deeply read in the law of adjudged cases. he died in from poison given to him in mistake by a druggist. edward d. wheeler, who came there in , and thomas b. reardon, who came in , were both men of strong minds. mr. wheeler represented yuba county at one time in the senate, and is now the district judge of the nineteenth district, at san francisco. he is regarded as among the ablest and best of the state judges. mr. reardon has been a district judge for some years in the fourteenth district, greatly respected by the profession for his ability and learning. isaac s. belcher, who came to marysville at a later period--in , i believe--was noted for his quiet manners and studious habits. he has since been district judge, and has worthily filled a seat on the bench of the supreme court of the state, where he was greatly respected by his associates and members of the bar. edward c. marshall, the brilliant orator, who at one time represented the state in congress, had his office in marysville in and ' . he occasionally appeared in court, though he was generally occupied in politics, and in his case, as in nearly all others, the practice of the law and the occupation of politics did not always move harmoniously together. charles e. filkins, afterwards county judge; charles lindley, afterwards also county judge and one of the code commissioners; henry p. haun, the first county judge, and afterwards appointed to the united states senate by governor weller; n.e. whitesides, afterwards a member of the legislature from yuba, and speaker of the house; f.l. hatch, now county judge of colusa; george howe, afterwards treasurer of the county; and wm. s. belcher, who afterwards rendered good service to the public as a school commissioner, also practiced at the marysville bar with success. charles e. delong, afterwards a member of the state senate, and our minister to japan, and henry k. mitchell, afterwards a nominee of the democrats for the u.s. senate in nevada, were just getting a good position at the bar when i left, and gave evidence of the ability which they afterwards exhibited. others might be named who held fine positions in the profession. these mentioned show a bar of great respectability, and i may add that its members were, with few exceptions, gentlemen of general information and courteous manners. the litigation which chiefly occupied them and gave the largest remuneration related to mines and mining claims. the enforcement of mortgages and collection of debts was generally--by me, at least--entrusted to clerks, unless a contest was made upon them. there was one case which i recall with pleasure, because of the result obtained in face of unconcealed bribery on the other side. the subject of the suit was the right to a "placer" mine in yuba river, at park's bar. its value may be estimated from the fact that within two or three weeks after the decision of the case, the owners took from the mine over ninety thousand dollars in gold dust. the suit was brought before a justice of the peace, and was for an alleged forcible entry and detainer, a form of action generally adopted at the time for the recovery of mining claims, because the title to the lands in which the mines were found was in the united states. it was prosecuted as a purely possessory action. the constable whose duty it was to summon the jurors had received the sum of two hundred dollars to summon certain parties, named by the other side. this fact was established beyond controversy by evidence placed in my hands. and whilst i was in bed in one of the tents or canvas sheds at the bar, which the people occupied in the absence of more substantial buildings, i heard a conversation in the adjoining room--i could not help hearing it, as it was carried on without any attempt at concealment, and the room was only separated from me by the canvas--between one of the jurors and one of the opposite party, in which the juror assured the party that it was "all right," and he need not worry as to the result of the suit; his side would have the verdict; the jury were all that way. on the next day, when the case was summed up, the saloon in which the trial was had was crowded with spectators, most of whom were partisans of the other side. i addressed the jury for over three hours, and after having commented upon the evidence at length and shown conclusively, as i thought, that my client was entitled to a verdict, i said substantially as follows: "gentlemen, we have not endeavored to influence your judgment except by the evidence; we have not approached you secretly and tried to control your verdict; we have relied solely upon the law and the evidence to maintain our rights to this property. but the other side have not thus acted; they have not been content that you should weigh only the evidence; they have endeavored to corrupt your minds and pervert your judgments; they have said that you were so low and debased that although you had with uplifted hands declared that so might the ever-living god help you, as you rendered a verdict according to the evidence, you were willing, to please them, to decide against the evidence, and let perjury rest on your souls. i know that you [pointing to one of the jurors] have been approached. did you spurn the wretch away who made a corrupt proposal to you, or did you hold counsel, sweet counsel with him? i know that you [pointing to another juror] talked over this case with one of the other side at the house on the hill last night, for i overheard the conversation--the promise made to you and your pledge to him. in the canvas houses here all rooms are as one; the words uttered in one are voices in all. you did not dream that any but you two were in the tent; but i was there and overheard the foul bargain." at this thrust there was great excitement, and click, click, was heard all through the room, which showed a general cocking of pistols; for every one in those days went armed. i continued: "there is no terror in your pistols, gentlemen; you will not win your case by shooting me; you can win it only in one way--by evidence showing title to the property; you will never win it by bribery or threats of violence. i charge openly attempted bribery, and if what i say be not true, let the jurors speak out now from their seats. attempted bribery, i say--whether it will be successful bribery, will depend upon what may occur hereafter. if, after invoking the vengeance of heaven upon their souls should they not render a verdict according to the evidence, the jurors are willing to sell their souls, let them decide against us." this home-thrust produced a great sensation. it was evident that the jury were disturbed. when the case was submitted to them, they were absent only a few minutes. they returned a verdict in our favor. some of them afterwards came to me and admitted that they had been corruptly approached, but added that they were not low enough to be influenced in their verdict in that way. "of course not," i replied; though i had little doubt that it was only the fear of exposure which forced them to do right. i have said that in those days everyone went armed; it would be more correct to say that this was true in the mining regions of the state and when travelling. i, myself, carried a derringer pistol and a bowie-knife until the summer of , though of course out of sight. i did so by the advice of judge mott, of the district court, who remarked that, though i never abused a witness or a juror, or was discourteous to any one in court, there were desperate men in the country, and no one could know to what extremity they might go, as i would not be deterred by any considerations from the discharge of my whole duty to my clients. so, until the summer of , i carried weapons. and yet they were not such provocatives of difficulty as some of our eastern friends are accustomed to think. on the contrary, i found that a knowledge that they were worn generally created a wholesome courtesy of manner and language. i continued to occupy my small office and slept in its loft through the summer and fall of , and felt quite contented with them. twice i was summarily dislodged, being threatened by a fire on the other side of the street. on one occasion a most ludicrous incident occurred, which i cannot recall without a smile. a little after midnight we were aroused, on the occasion referred to, by a loud thumping at our door, accompanied by a cry of "fire." my loft was shared with three others, and at the cry we all leaped from our cots and two of our number seizing whatever was convenient and portable carried it out of the house to a distance of about one hundred yards, where gathered a multitude of people, fleeing before the flames with all sorts of baggage, trunks, chairs, beds, and utensils of every kind which they had brought from their houses. i hastily threw the papers of sundry suits and a dozen law books, recently purchased, into a box, and with the assistance of the other occupant of my loft, carried it off. just as we reached the crowd, a pair of young grizzly bears which the owner had kept in a cage near by were let loose, and they came towards us growling in their peculiar way. at their sight, there was a general _stampede_ of men, women, and children, in all directions. boxes and everything else portable were instantly dropped, and such an indiscriminate flight was never before seen except from a panic in battle. the barbour difficulty. when the bill of , dividing the state into new judicial districts, became a law, there were several candidates for the office of judge of the tenth judicial district, which comprised the counties of yuba, nevada, and sutter. henry p. haun, the county judge of yuba, was one candidate; john v. berry, a lawyer of the same county was another; and gordon n. mott, a lawyer of sutter county, was a third. my first choice was berry; but, finding that he had very little chance, i gave what influence i had in favor of mr. mott, and he received from the governor the appointment of judge of the new district. in the summer of , the governor issued his proclamation for the fall elections, and, among others, for an election to fill the office of judge of the tenth district. i had supposed--and there were many others who agreed with me--that judge mott's term under his appointment would continue until the election of . but there being some doubts about the matter and the governor having issued his proclamation for an election, candidates were nominated by the conventions; and at the ensuing election one of them, william t. barbour, a lawyer of nevada county, received a majority of the votes cast and was declared elected. when he came, however, to demand the office, judge mott expressed his opinion that there had been no vacancy to be filled and declined to surrender. this led to a suit between them. the question involved being exclusively one of law, an agreed case was made up and presented to the supreme court, and that tribunal decided in favor of barbour. a report of the case is given in the d california reports, under the title of people, ex rel. barbour, vs. mott. in the case i appeared as counsel for judge mott and argued his cause. this offended judge barbour, and he gave free expression to his displeasure. afterwards, when his term for the vacancy was about to expire and a new election was to be held, he presented himself as a candidate for a second term. it was my opinion that he was not qualified for the position, and i therefore recommended my friends to vote for his opponent. for some weeks previous to the election i was absent from the district; but i returned two days before it was to take place and at once took a decided part against barbour and did all i could to defeat him. this action on my part, in connection with my previous zeal in behalf of judge mott, led barbour to make some very bitterly vituperative remarks about me, which being reported to me, i called on him for an explanation. some harsh words passed between us at the interview. the result was that barbour refused to make any explanation, but gave me a verbal challenge to settle our difficulties in the usual way among gentlemen. i instantly accepted it and designated judge mott as my friend. in half an hour afterwards judge mott was called upon by mr. charles s. fairfax as the friend of barbour, who stated that barbour had been challenged by me, and that his object in calling upon mott was to arrange the terms of a hostile meeting. mott answered that he understood the matter somewhat differently; that the challenge, as he had been informed, came from barbour, and that i, instead of being the challenging, was the accepting party. fairfax, however, insisted upon his version of the affair; and upon consulting with mott, i waived the point and accepted the position assigned me. fairfax then stated that barbour, being the challenged party, had the right to choose the weapons and the time and place of meeting; to all of which mott assented. fairfax then said that, upon consultation with his principal, he had fixed the time for that evening; the place, a room twenty feet square, describing it; the weapons, colt's revolvers and bowie-knives; that the two principals so armed were to be placed at opposite sides of the room with their faces to the wall; that they were to turn and fire at the word, then advance and finish the conflict with their knives. mott answered that the terms were unusual, unprecedented, and barbarous, and that he could not consent to them. fairfax admitted that they were so; but replied that they were those barbour had prescribed. he would, however, see barbour and endeavor to obtain a modification of them. soon afterwards he reported that barbour still insisted upon the terms first named and would not agree to any other. when mott reported the result of his conference with fairfax, i at once said that barbour was a coward and would not fight at all. i knew perfectly well that such terms could come only from a bully. i saw that it was a game of bluff he was playing. so i told mott to accept them by all means. mott accordingly called on fairfax and accepted the terms as proposed, and gave notice that i would be on hand and ready at the time and place designated. this being reported to barbour, fairfax soon afterwards made his appearance with a message that his principal would waive the bowie-knives; and not long afterwards he came a second time with another message that it would not do to have the fight in the room designated, because the firing would be heard outside and attract a crowd. in accordance with my instructions, mott assented to all the modifications proposed, and it was finally agreed that the meeting should take place the next morning in sutter county. i was to take a private conveyance, and barbour was to take one of the two daily stages that ran to sacramento. at a specified place we were to leave our conveyances and walk to a retired spot, which was designated, where the hostile meeting was to take place. the next morning, accordingly, i took a carriage, and with my friend judge mott drove down to the appointed place. after we had been there some time the first stage appeared and stopped. soon after the second stage appeared and stopped, and judge barbour and mr. fairfax got out. but instead of proceeding to the designated place, barbour declared that he was a judicial officer, and as such could not engage in a duel. at the same time he would take occasion to say that he would protect himself, and, if assaulted, would kill the assailant. with these words, leaving fairfax standing where he was, he walked over to the first stage, and mounting rode on to sacramento. seeing fairfax standing alone on the ground i sent word to him that i would be happy to give him a place in my carriage--an invitation which he accepted, and we then drove to nicolaus, where we breakfasted, and thence returned to marysville.[ ] the conduct of barbour on the ground, after his fierce and savage terms at the outset, produced a great deal of merriment and derision; and some very sharp squibs appeared in the newspapers. one of them gave him great annoyance, and he inquired for its author. i told the editor of the paper in which it appeared that if it was necessary to protect the writer, to give my name, although i did not write it, or know beforehand that it was to be written. on the following morning, whilst in front of my office gathering up kindling-wood for a fire, and having my arms full--for each man was his own servant in those days--barbour came up and, placing a cocked navy revolver near my head, cried out, "draw and defend yourself." as i had not observed his approach i was taken by surprise, but turning on him i said, "you infernal scoundrel, you cowardly assassin--you come behind my back and put your revolver to my head and tell me to draw; you haven't the courage to shoot; shoot and be damned." there were at least ten witnesses of this scene; and it was naturally supposed that having advanced so far he would go farther; but as soon as he found i was not frightened, he turned away and left me. it is impossible to express the contempt i felt for him at that moment for his dastardly conduct, a feeling which the spectators shared with me, as they have since often stated.[ ] i do not give these details as having any importance in themselves; but they illustrate the semi-barbarous condition of things in those early days, and by comparison show out of what our existing condition has been evolved, and how far we have advanced. i give them also for the reason that barbour afterwards wrote a letter to turner, which the latter published, referring to the affair, in which he boasted of having given me a "whipping." how far his boast was warranted the above facts show. for a long time afterwards he expressed his bitterness towards me in every possible way. he did not take turner's plan of expelling me from the bar; but he manifested his feelings by adverse rulings. in such cases, however, i generally took an appeal to the supreme court, and in nearly all of them procured a reversal. the result was that he suddenly changed his conduct and commenced ruling the other way. while this was his policy, there was hardly any position i could take in which he did not rule in my favor. at last i became alarmed lest i should lose my cases in the appellate court by winning them before him. about a year afterwards he sent one of his friends to ask me if i was willing to meet him half-way--stating that my conduct in court had always been courteous, and he was satisfied that he had done me injustice. i answered that i was always willing to meet any one half-way, but in this case it must be without explanations for the past. this condition was accepted; accordingly we met, and taking a glass of wine, i said, "here is to an act of oblivion, but no explanations." for a long time no allusion was made by either to the old difficulties. but at last he insisted upon telling me how tales had been brought to him, and how they exasperated him; and he expressed great regret for what had taken place; and to make amends, as far as he was able, for what he had written about me, he sent me the following letter: "marysville, _dec. , _. "hon. s.j. field. "dear sir: on yesterday i learned through our mutual friend charles s. fairfax, esq., that judge w.r. turner has recently issued a publication which contains a letter of mine, written him some four years ago. i have not been able to procure a copy of this publication, and i have entirely forgotten the language used; in truth i do not remember to have written him on the subject of yourself or otherwise; but i suppose i must have done so, and have given expressions of opinion that i have long since ceased to entertain, and to invectives that i have no disposition to justify. you will recall that, at the time referred to, there unfortunately existed between us feelings of deep hostility; and i may at the time have used harsh terms indicative of my then feelings, which i regret and do not now approve, if they are as represented by others." "judge turner has taken an unwarranted liberty in publishing the letter, be it of what character it may. he never requested my permission for this purpose, nor did i know that it was his intention." "trusting that this explanation may be satisfactory, i remain," "very respectfully yr. obt. servant," "wm. t. barbour." he ever afterwards, as occasion offered, spoke of me in the highest terms as a gentleman and lawyer. my resentment accordingly died out, but i never could feel any great regard for him. he possessed a fair mind and a kindly disposition, but he was vacillating and indolent. moreover, he loved drink and low company. he served out his second term and afterwards went to nevada, where his habits became worse, and he sunk so low as to borrow of his acquaintances from day to day small sums--one or two dollars at a time--to get his food and lodging. he died from the effects of his habits of intemperance. in stating the result of the intended hostile meeting with him, i mentioned that when he proceeded on his way to sacramento, he left his second, mr. fairfax, standing alone on the ground, and that i invited the latter to take a seat in my carriage. from this time the intercourse between mr. fairfax and myself became more frequent than it had been previously, and a friendship followed which continued as long as he lived. he was not sparing in his censure of the conduct of his principal, whilst his language was complimentary of mine. in a few months i became quite intimate with him, and i found him possessed of a noble and chivalric spirit. with great gentleness of manner, he had the most intrepid courage. his fidelity to his friends and devotion to their interests attached them strongly to him. he was beloved by all who knew him. no man in the state was more popular. he represented the county of yuba in the legislature two or three times, and at one session was speaker of the assembly. when the land office at marysville was established in , he was appointed register; and in , he was elected clerk of the supreme court of the state. it was my good fortune to aid him in securing both of these positions. at my suggestion, mr. mcdougal, a member of congress from california, urged the establishment of the land office, and obtained for him the appointment of register. in , when he sought the clerkship of the supreme court of the state, i became a delegate from yuba county to the state convention, and made his nomination for that office my special object, and with the aid of the rest of the delegation, succeeded in obtaining it. two or three incidents which i will relate will illustrate the character of the man. it was either in the session of or , i forget which, that a petition was presented to the assembly of california on the part of some of the colored people of the state, requesting that the laws then in force, which excluded them from being witnesses in cases where a white person was a party, might be repealed so as to allow them to testify in such cases. at that time there was a great deal of feeling throughout the country on the subject of slavery, and any attempt to legislate in behalf of the colored people was sure to excite opposition, and give rise to suggestions that its promoter was not sound on the slavery question. the presentation of the petition accordingly stirred up angry feelings. it created a perfect outburst of indignation, and some one moved that the petition should be thrown out of the window; and the motion was passed almost unanimously. if i recollect aright, there was but a single vote in the negative. i was standing by mr. fairfax when he was informed of the proceeding. he at once denounced it, and said, in energetic terms--"this is all wrong--the petition should have been received. if my horse or my dog could in any way express its wishes to me i would listen to it. it is a shame that a petition from any one, black or white, should not be received by the legislature of the state, whether it be granted or not." i was greatly impressed at that time with the manliness of this expression in a community which looked with suspicion on any movement in favor of extending any rights to the colored race. on another occasion, some years afterwards, when i was judge of the supreme court of the state and he was the clerk of the court, there was a good deal of complaint against harvey lee, the reporter of the court, who was appointed to the office by governor weller. i believe that lee was instrumental, but of this i am not certain, in getting a law passed which took the appointment of the reporter from the court and gave it to the governor. he was an inferior lawyer, and, of course, had very little practice. the appointment, therefore, to which a fair salary was attached, was eagerly sought by him. his reports, however, were so defective that an effort was made by the judges to get the law repealed and have the appointment restored to the court. this led to a bitter feeling on his part towards the judges, and in a conversation with mr. fairfax he gave vent to it in violent language. mr. fairfax resented the attack and an altercation ensued, when lee, who carried a sword-cane, drew the sword and ran it into fairfax's body. fortunately it entered the chest above the heart. withdrawing the sword lee made a second lunge at fairfax, which the latter partially avoided so as to receive only a flesh wound in the side. by this time fairfax had drawn his pistol and covered the body of lee, as he was raising his sword for a third thrust. lee, seeing the pistol, stepped back and threw up his arms exclaiming, "i am unarmed"--though he had only that moment withdrawn his sword from the body of fairfax, and it was then dripping with blood. "shoot the damned scoundrel," cried the latter's friend, samuel b. smith, then standing by his side. but fairfax did not shoot. looking at lee, whose body was covered with his pistol, while the blood was trickling from his own person, he said, "you are an assassin! you have murdered me! i have you in my power! your life is in my hands!" and gazing on him, he added, "but for the sake of your poor sick wife and children i will spare you." he thereupon uncocked his pistol and handed it to his friend, into whose arms he fell fainting. he had known the wife of lee when a young girl; and, afterwards, in speaking of the affair to a friend, he said, "i thought my wife would be a widow before sundown, and i did not wish to leave the world making another." all california rang with the story of this heroic act. it has its parallel only in the self-abnegation of the dying hero on the battle-field, who put away from his parched lips the cup of water tendered to him, and directed that it be given to a wounded soldier suffering in agony by his side, saying, "his need is greater than mine." during the war his sympathies, as was the case with most southerners in california, were with his people in virginia. he told me on one occasion that he could not but wish they would succeed; but, he said; "though i am a virginian by birth, i have adopted california, and whilst i live in a state which has taken her stand with the northern people, i cannot in honor do anything, and i will not, to weaken her attachment to the union. if my health were good i should leave the state and return to virginia and give my services to her; but, as that is impossible, i shall remain in california, and, whilst here, will not be false to her by anything i do or say." these incidents, better than any elaborate description, illustrate the character of the man. he was a lineal descendant of the great fairfax family which has figured so conspicuously in the history of england and of virginia. he was its tenth baron in a direct line. but notwithstanding the rank of his family he was a republican in his convictions. he loved his country and its institutions. he was himself more noble than his title. he came east to attend the national democratic convention in at the head of the delegates from california. after the convention, he spent some months among his friends and relatives at the old family residence in maryland. at this time the seeds of consumption, which had long been lurking in his system, began to be developed, and he was taken down with a severe illness which proved fatal. he became so ill as to be unable to walk, and was conveyed to baltimore to procure the best medical attendance; and there he died on the th of april, , in the arms of his devoted wife, who had come from california to be with him in his last hours. his body was brought to washington and interred within sight of the capitol, near hock creek church, in which his ancestors had worshipped. i have mentioned that when fairfax was stabbed by lee he fell into the arms of mr. samuel b. smith. this gentleman i had known slightly before my difficulty with judge barbour; but the intimacy which sprung up between fairfax and myself, after that affair, brought me more in contact with mr. smith, who was his constant companion. mr. smith came to california from new jersey in , and passed through some stirring scenes during that and the following year. he came with mr. john s. hagar, who was afterwards state senator, district judge, and united states senator, and was engaged with him in the mines in the winter of -' . in he settled in sutter county; and in the fall of was elected state senator from that county. having become more intimately acquainted with him after he was elected senator, i requested him to introduce a bill into the legislature, revising and amending the one which i had originally drawn concerning the courts and judicial officers of the state; and he cheerfully consented to do so, and took great interest in securing its passage. indeed, it was through his influence that the bill became a law. many circumstances threw us together after that, and i learned to appreciate his manly character, his generous disposition, and his great devotion to his friends. finally, in the fall of , we agreed to form a partnership after my return from the eastern states, which i then proposed to visit. after the barbour affair the course of my professional life was much the same as that of any other lawyer. my business was large and i gave to it my unremitting attention. in i determined to go east to see my parents and brothers and sisters, who had never been out of my mind a single day since i left them in . accordingly, i went east, and after passing a few months with them i returned to california in january, . after that i continued to practice my profession, with mr. smith as my partner, until the spring of , though during this period he went to washington as commissioner of the state to obtain from congress the payment of moneys expended by her in suppressing the hostilities of indians within her borders, and was absent several months. in april of that year we dissolved our partnership. a few months afterwards i was nominated for the bench of the supreme court of the state, and was elected by a large majority. there were two candidates besides myself for the position, and , votes were polled. of these i received a majority of , over each of my opponents, and , over them both together.[ ] the term to which i was elected was for six years, commencing january st, . in september, , hugh c. murray, then chief justice, died, and associate justice peter h. burnett was appointed to fill the vacancy. this left the balance of judge burnett's term of service to be filled, and i was urged by the governor of the state to accept his appointment to it, as it was for less than three months, and immediately preceded my own term. at first i refused, as i desired to revisit the east; but being assured by the judges that taking the place need not prevent my intended visit, i accepted the appointment, and on the th of october, , took my seat on the bench. [ ] see letter of judge mott detailing the particulars of the affair; exhibit h, in appendix. [ ] see exhibit i, in appendix. [ ] the exact vote was as follows: for myself , for nathaniel bennett , for j.p. ralston , ------ total vote , majority over bennett , majority over balston , majority over both , removal from marysville--life on the supreme bench.--end of judge turner. the day following my acceptance of the governor's appointment to the supreme court of the state, i returned to marysville to close my business before taking up my residence in sacramento, where the court held its sessions. i had gone to sacramento to argue some cases before the court when the appointment was tendered to me; and, of course, did not expect to remain there very long. in a few days i arranged my affairs at marysville and then removed permanently to sacramento. i left marysville with many regrets. i had seen it grow from a collection of tents with a few hundred occupants to a town of substantial buildings with a population of from eight to ten thousand inhabitants. from a mere landing for steamers it had become one of the most important places for business in the interior of the state. when i left, it was a depot of merchandise for the country lying north and east of it; and its streets presented a scene of bustle and activity. trains of wagons and animals were constantly leaving it with goods for the mines. its merchants were generally prosperous; some of them were wealthy. its bankers were men of credit throughout the state. steamers plied daily between it and sacramento, and stages ran to all parts of the country and arrived every hour. two daily newspapers were published in it. schools were opened and fully attended. churches of different denominations were erected and filled with worshippers. institutions of benevolence were founded and supported. a provident city government and a vigorous police preserved order and peace. gambling was suppressed or carried on only in secret. a theatre was built and sustained. a lecture-room was opened and was always crowded when the topics presented were of public interest. substantial stores of brick were put up in the business part of the city; and convenient frame dwellings were constructed for residences in the outskirts, surrounded with plats filled with trees and flowers. on all sides were seen evidences of an industrious, prosperous, moral, and happy people, possessing and enjoying the comforts, pleasures, and luxuries of life. and they were as generous as they were prosperous. their hearts and their purses were open to all calls of charity. no one suffering appealed to them in vain. no one in need was turned away from their doors without having his necessities relieved. it is many years since i was there, but i have never forgotten and i shall never forget the noble and generous people that i found there in all the walks of life. the supreme court of the state then consisted of three members, the senior in commission being the chief justice. david s. terry was the chief justice and peter h. burnett was the associate justice. both of these gentlemen have had a conspicuous career in california, and of both i have many interesting anecdotes which would well illustrate their characters and which at some future day i may put upon paper. they were both men of vigorous minds, of generous natures and of positive wills; but in all other respects they differed as widely as it was possible for two extremes. mr. terry had the virtues and prejudices of men of the extreme south in those days. his contact and larger experience since with men of the north have no doubt modified many of those prejudices, and his own good sense must have led him to alter some of his previous judgments. probably his greatest regret is his duel with mr. broderick, as such encounters, when they terminate fatally to one of the parties, never fail to bring life-long bitterness to the survivor. a wiser mode of settling difficulties between gentlemen has since been adopted in the state; but those who have not lived in a community where the duel is practiced cannot well appreciate the force of the public sentiment which at one time existed, compelling a resort to it when character was assailed. mr. burnett was one of the early settlers in oregon, and had held positions of honor and trust there before settling in california. he came here soon after the discovery of gold, took an interest in public affairs, and was elected the first governor of the state, when the constitution was adopted. judge terry resigned his office in september, , when he determined to send a challenge to mr. broderick, and i succeeded him as chief justice; and w.w. cope, of amador, was elected to fill the vacant place on the bench. i was absent from the state at the time, or i should have exerted all the power i possessed by virtue of my office to put a stop to the duel. i would have held both of the combatants to keep the peace under bonds of so large an amount as to have made them hesitate about taking further steps; and in the meantime i should have set all my energies to work, and called others to my aid, to bring about a reconciliation. i believe i should have adjusted the difficulty. mr. cope, who filled the vacant place on the bench, possessed a superior mind and a genial nature. he made an excellent judge. he studiously examined every case and carefully prepared his opinions. he remained on the bench until january, , when the new constitutional amendments, reorganizing the court, went into effect. he is now in practice in san francisco, and has a large clientage. judge burnett continued in office until the election of his successor in the fall of . his successor was joseph g. baldwin, a lawyer of distinction and a gentleman of literary reputation. he was the author of "the flush times of alabama and mississippi," and of "party leaders." the first is a work full of humor and a great favorite in the section of the country whose "times" it portrays with such spirit and glee as to excite roars of laughter in the reader. the latter is a thoughtful history of the character and influence upon the country of jefferson, hamilton, jackson, clay, and randolph. his portraitures present these men in the fullness and freshness of living beings, whom we see and hear, and whose power we feel. my friendship for mr. baldwin commenced long before he came to the bench, and it afterwards warmed into the attachment of a brother. he had a great and generous heart; there was no virtue of humanity of which he did not possess a goodly portion. he was always brimful of humor, throwing off his jokes, which sparkled without burning, like the flashes of a rocket. there was no sting in his wit. you felt as full of merriment at one of his witticisms, made at your expense, as when it was played upon another. yet he was a profound lawyer, and some of his opinions are models of style and reasoning. he remained on the bench until january, , when he was succeeded by edward norton, of san francisco. this gentleman was the exemplar of a judge of a subordinate court. he was learned, patient, industrious, and conscientious; but he was not adapted for an appellate tribunal. he had no confidence in his own unaided judgment. he wanted some one upon whom to lean. oftentimes he would show me the decision of a tribunal of no reputation with apparent delight, if it corresponded with his own views, or with a shrug of painful doubt, if it conflicted with them. he would look at me in amazement if i told him that the decision was not worth a fig; and would appear utterly bewildered at my waywardness when, as was sometimes the case, i refused to look at it after hearing by what court it was pronounced. it is not my purpose to speak of my own career on the bench of the supreme court of california. it is only for reminiscences of my previous life that you, mr. hittell, have asked.[ ] i am tempted, however, to hand to you a letter of judge baldwin, my associate for over three years, in which he presents, in terms exaggerated by his friendship, the result of my labors there.[ ] there is only one scene to which i wish to refer. about a year and a half after i went upon the bench, a contested election case came up from trinity county. it appeared that judge turner, who had been sent to the district composed of the counties of trinity and klamath, by the act concerning the courts and judicial officers of the state, at the end of his term offered himself for re-election as judge of that district. when the vote was counted there appeared to be a majority of one against him, and his opponent was declared elected. he instituted a contest for the office, and, being defeated in the court below, appealed to the supreme court. he then became very much exercised over his appeal, because i was one of the justices. there were not wanting persons who, out of sheer malice, or not comprehending any higher motives of conduct than such as governed themselves, represented that i would improve the opportunity to strike him a blow. when his case came on for hearing, i left the bench to my associates, judges terry and baldwin, and they decided in his favor. at this action of mine turner was amazed. it was something wholly unexpected and surprising to him. soon after the decision he sent one of his friends, named snowden, to know if i would speak to him if he should make the first advance. i answered that under no circumstances would i ever consent to speak to him; that he had done me injuries which rendered any intercourse with him impossible; that the world was wide enough for us both, and he must go his own way. this answer snowden communicated to him. the next morning he stationed himself at the foot of the stairway leading up to the supreme court rooms, which was on the outside of the building, and, as i passed up, he cried out; "i am now at peace with all the world; if there is any man who feels that i have done him an injury, i am ready to make him amends." i turned and looked at him for a moment, and then passed on without saying a word. on the following morning he took the same position and repeated substantially the same language. i stopped and gazed at him for a moment, and then passed on in silence. this was the last time i saw him. he returned to trinity, and held his office for the balance of his term, six years, under the decision of the supreme court, and was re-elected in . but his character and habits unfitted him for a judicial position. he was addicted to gambling and drinking, and he consorted with the lowest characters; and the same tyrannical temper and conduct which he had exhibited towards me in marysville, were displayed in his new district. accordingly measures were taken by citizens of trinity to secure his impeachment by the legislature. mr. westmoreland, a member of the assembly from that county in offered a resolution for the appointment of a committee to inquire whether articles of impeachment should be presented against him for high crimes and misdemeanors, with power to send for persons and papers and report articles if warranted by the evidence. in offering the resolution mr. westmoreland charged, that during the time turner had held the office of district judge he had been grossly tyrannical; that he had imprisoned citizens, depriving them of their liberty without process of law; that he had neglected and refused to perform the duties incumbent upon him by statute; that by a standing rule he allowed no witness to be called in a case unless he was subpoenaed and in attendance on the first day of the term; that he had used the power of his position for the furtherance of his own ends of private hate; that he was an habitual drunkard, with rare intervals of sobriety, and had upon occasions come into the court-room to sit upon the trial of causes so intoxicated as to be unable to stand, and had fallen helplessly upon the floor, whence he had been removed by officers of the court; that upon one occasion, when engaged in a trial, he had in the presence of jurors, witnesses, and other persons attending the court, deliberately gone out of the court-room and openly entered a house of ill-fame near by; and that by his disgraceful conduct he had become a burden upon the people of that district too grievous to be borne. these things mr. westmoreland stated he stood prepared to prove, and he invoked the interposition of the legislature to protect the people of the eighth judicial district who were suffering from the deportment and conduct of this officer. the resolution was passed. finding that articles of impeachment would be presented against him, turner resigned his office. after this his habits of drinking became worse, and he was sent to the asylum for inebriates, where he died. in thinking over my difficulties with turner at this distant day, there is nothing in my conduct which i in the least regret. had i acted differently; had i yielded one inch, i should have lost my self-respect and been for life an abject slave. there was undoubtedly an unnecessary severity of language in two or three passages of my answers to his attacks; and some portion of my answer in court to his order to show cause why i should not be re-expelled from the bar might better have been omitted. i have since learned that one is never so strong as when he is calm, and never writes so forcibly as when he uses the simplest language. my justification in these particulars, if they require any, must be found in the savage ferocity with which i was assailed, the brutal language applied to my character and conduct, and the constant threats made of personal violence. malignity and hate, with threats of assassination, followed me like a shadow for months. i went always armed for protection against assault. i should have been less or more than man had i preserved at all times perfect calmness either in my language or conduct. in the contest with this man i was cheered by the support of the best men of the state. but of all of them no one aided me so much, and so freely, as the editor of the marysville herald, mr. robert h. taylor, a gentleman still living, in the full strength of his intellect, and honored and trusted as a learned member of the legal profession in nevada. may length of years and blessings without number attend him. * * * * * here my narrative of "personal experiences" must for the present end. i could have given you, mr. hittell, more interesting matter. i could have given you sketches of fremont, halleck, gwin, broderick, weller, geary, sherman, bigler, mcdougal, bennett, heydenfeldt, murray, and others, with many striking anecdotes illustrative of their characters. they were all remarkable men, and the history of their lives would be full of interest and instruction. i could have related the story of the vigilance committees of and , and shown how the men of order and virtue acquired and maintained ascendency over the irregular and disorderly elements of society. i could have told you of the gradual development of the industries of the state until her yearly products have become one of the marvels of the world. i could have described the wild excitement produced by the supposed discoveries of gold in boundless quantities on fraser river; and the later but more substantial movement upon the development of the silver mines of nevada. i could have recounted the efforts made in and to keep the state in the union against the movements of the secessionists, and the communications had with president lincoln by relays of riders over the plains. i could have described the commencement, progress, and completion of the pacific railroad, and the wonderful energy and unfailing resolution of its constructors. i could have told you stories without number, full of interest, of the judges of california, state and federal, who preceded me on the bench, and of members of the profession; of hastings, bennett, lyons, wells, anderson, heydenfeldt, and murray, of the state supreme court; of hoffman and mcallister of the federal bench; of robinson, crittenden, randolph, williams, yale, mcconnell, felton, and others of the bar, now dead, and of some who are at its head, now living; composing as a whole a bar not exceeded in ability, learning, eloquence, and literary culture by that of any other state of the union. but you asked me merely for personal reminiscences, of occurrences at marysville and during the days preceding my going there. i will, therefore, postpone until another occasion a narrative which i think will be more interesting than anything i have here related. [ ] these sketches were in the main dictated to a short-hand writer at the request of mr. theodore h. hittell, of san francisco. [ ] the letter is printed at the end of this narrative at page . the career of judge field on the supreme bench of california, by judge joseph g. baldwin, his associate for three years. [_from the sacramento union, of may , ._] "the resignation by judge field of the office of chief justice of the supreme court of california, to take effect on the th instant, has been announced. by this event the state has been deprived of the ablest jurist who ever presided over her courts. judge field came to california from new york in , and settled in marysville. he immediately commenced the practice of law and rose at once to a high position at the local bar, and upon the organization of the supreme court soon commanded a place in the first class of the counsel practicing in that forum. for many years, and until his promotion to the bench, his practice was as extensive, and probably as remunerative, as that of any lawyer in the state. he served one or two sessions in the legislature, and the state is indebted to him for very many of the laws which constitute the body of her legislation.[ ] in he was nominated for judge of the supreme court for a full term, and in october of the same year was appointed by governor johnson to fill the unexpired term of justice heydenfeldt, resigned. he immediately entered upon the office, and has continued ever since to discharge its duties. recently, as the reader knows, he was appointed, by the unanimous request of our delegation in congress, to a seat upon the bench of the supreme court of the united states, and was confirmed, without opposition, by the senate. "like most men who have risen to distinction in the united states, judge field commenced his career without the advantages of wealth, and he prosecuted it without the factitious aids of family influence or patronage. he had the advantage, however--which served him better than wealth or family influence--of an accomplished education, and careful study and mental discipline. he brought to the practice of his profession a mind stored with professional learning, and embellished with rare scholarly attainments. he was distinguished at the bar for his fidelity to his clients, for untiring industry, great care and accuracy in the preparation of his cases, uncommon legal acumen, and extraordinary solidity of judgment. as an adviser, no man had more the confidence of his clients, for he trusted nothing to chance or accident when certainty could be attained, and felt his way cautiously to his conclusions, which, once reached, rested upon sure foundations, and to which he clung with remarkable pertinacity. judges soon learned to repose confidence in his opinions, and he always gave them the strongest proofs of the weight justly due to his conclusions. "when he came to the bench, from various unavoidable causes the calendar was crowded with cases involving immense interests, the most important questions, and various and peculiar litigation. california was then, as now, in the development of her multiform physical resources. the judges were as much pioneers of law as the people of settlement. to be sure something had been done, but much had yet to be accomplished; and something, too, had to be undone of that which had been done in the feverish and anomalous period that had preceded. it is safe to say that, even in the experience of new countries hastily settled by heterogeneous crowds of strangers from all countries, no such example of legal or judicial difficulties was ever before presented as has been illustrated in the history of california. there was no general or common source of jurisprudence. law was to be administered almost without a standard. there was the civil law, as adulterated or modified by mexican provincialism, usages, and habitudes, for a great part of the litigation; and there was the common law for another part, but _what that was_ was to be decided from the conflicting decisions of any number of courts in america and england, and the various and diverse considerations of policy arising from local and other facts. and then, contracts made elsewhere, and some of them in semi-civilized countries, had to be interpreted here. besides all which may be added that large and important interests peculiar to the state existed--mines, ditches, etc.--for which the courts were compelled to frame the law, and make a system out of what was little better than chaos. "when, in addition, it is considered that an unprecedented number of contracts, and an amount of business without parallel, had been made and done in hot haste, with the utmost carelessness; that legislation was accomplished in the same way, and presented the crudest and most incongruous materials for construction; that the whole scheme and organization of the government, and the relation of the departments to each other, had to be adjusted by judicial construction--it may well be conceived what task even the ablest jurist would take upon himself when he assumed this office. it is no small compliment to say that judge field entered upon the duties of this great trust with his usual zeal and energy, and that he leaves the office not only with greatly increased reputation, but that he has raised the character of the jurisprudence of the state. he has more than any other man given tone, consistency, and system to our judicature, and laid broad and deep the foundation of our civil and criminal law. the land titles of the state--the most important and permanent of the interests of a great commonwealth--have received from his hand their permanent protection, and this alone should entitle him to the lasting gratitude of the bar and the people. "his opinions, whether for their learning, logic, or diction, will compare favorably, in the judgment of some of our best lawyers, with those of any judge upon the supreme bench of the union. it is true what he has accomplished has been done with labor; but this is so much more to his praise, for such work was not to be hastily done, and it was proper that the time spent in perfecting the work should bear some little proportion to the time it should last. we know it has been said of judge field that he is too much of a 'case lawyer,' and not sufficiently broad and comprehensive in his views. this criticism is not just. it is true he is reverent of authority, and likes to be sustained by precedent; but an examination of his opinions will show that, so far from being a timid copyist, or the passive slave of authority, his rulings rest upon clearly defined principles and strong common sense. "he retires from office without a stain upon his ermine. millions might have been amassed by venality. he retires as poor as when he entered, owing nothing and owning little, except the title to the respect of good men, which malignant mendacity cannot wrest from a public officer who has deserved, by a long and useful career, the grateful appreciation of his fellow-citizens. we think that we may safely predict that, in his new place, justice field will fulfill the sanguine expectations of his friends." j.g.b. san francisco, _may , _. [ ] he was in the legislature only one session. * * * * * in a circuit court for california was created by congress, and clothed with the ordinary jurisdiction of the several circuit courts of the united states. hon. m. hall mcallister was appointed its judge. in january, , he resigned and my appointment as his successor was recommended by our senators. they telegraphed me what they had done, and i replied that i could not accept the place, that i preferred to remain chief justice of the supreme court of the state than to be a judge of an inferior federal court, but that if a new justice were added to the supreme court of the united states, i would accept the office if tendered to me. notwithstanding this reply my appointment was urged, and i was nominated by the president. the senators have since told me that they pressed my nomination from a belief that another justice would soon be added to the supreme court, and that the appointment would be made from the pacific states, and that if i were circuit judge it would more likely be tendered to me than to any one else. the interests of those states were so great, and from the character of their land titles, and their mines of gold and silver, were in some respects so different from those of the eastern states, that it was deemed important to have some one familiar with them on the supreme bench of the united states. accordingly, while my nomination for circuit judge was pending before the senate, a bill providing for an additional justice of the supreme court, and making the pacific states a new circuit, was introduced into both houses of congress, and on the last day of the session, march d, , it became a law. soon after the adjournment of congress, the entire delegation from the pacific states united in recommending my appointment to the new office. the delegation then consisted of four senators and four members of the house, of whom five were democrats and three republicans; all of them were union men. i was accordingly nominated by the president, and the nomination was unanimously confirmed by the senate. my commission was signed on the th of march, , and forwarded to me. i did not, however, take the oath of office and enter upon its duties until the th of may following. at the time i received the commission there were many important cases pending in the supreme court of california, which had been argued when only myself and one of the associate justices were present. i thought that these cases should be disposed of before i resigned, as otherwise a re-argument of them would be required, imposing increased expense and delay upon the parties. i therefore sent my resignation as chief justice to the governor, to take effect on the th of may. i selected that day, as i believed the cases argued could be decided by that time, and because it was the birthday of my father. i thought it would be gratifying to him to know that on the eighty-second anniversary of his birth his son had become a justice of the supreme court of the united states. accordingly on that day i took the oath of office.[ ] [ ] although i had informed the attorney-general of my action and delay in taking the oath of office, the salary of the office was sent to me from the date of my commission, march th, . i immediately deposited with the sub-treasurer at san francisco, to the credit of the united states, the proportion for the time between that date and the th of may, and informed the secretary of the treasury of the deposit, enclosing to him the sub-treasurer's receipt. * * * * * the annoyances of my judicial life. after the narrative of my personal reminiscences was completed, i concluded to dictate an account of some strange annoyances to which i had been subjected in the course of my judicial life. the account will have an interest to those of my friends for whom the reminiscences were printed, and it is intended for their perusal alone. rosy views of judicial life gradually vanishing.--unsettled land titles of the state.--asserted ownership by the state of gold and silver found in the soil.--present of a torpedo. when i went on the bench, i not only entertained elevated notions of the dignity and importance of the judicial office, but looked forward confidently to the respect and honor of the community from a faithful discharge of its duties. i soon discovered, however, that there would be but little appreciation for conscientious labor on the bench, except from a small number of the legal profession, until after the lapse of years. for the heavy hours of toil which the judges endured, for the long examination which they gave to voluminous records, for their nights of sleeplessness passed in anxious thought to ascertain what was true and right amidst a mass of conflicting evidence and doubtful principles, the public at large appeared to have little thought and less consideration. the cry of disappointment over frustrated schemes of cupidity and fraud was sufficient for the time to drown all other expressions of judgment upon the action of the court. the unsettled condition of the land titles of the state gave occasion to a great deal of litigation and was for a long time the cause of much bad feeling towards the judges who essayed to administer impartial justice. when california was acquired, the population was small and widely scattered. to encourage colonization, grants of land in large quantities, varying from one to eleven leagues, had been made to settlers by the mexican government. only small tracts were subjected to cultivation. the greater part of the land was used for grazing cattle, which were kept in immense herds. the grants were sometimes of tracts with defined boundaries, and sometimes of places by name, but more frequently of specified quantities within boundaries embracing a greater amount. by the mexican law, it was incumbent upon the magistrates of the vicinage to put the grantees in possession of the land granted to them; and for that purpose to measure off and segregate the quantity designated. owing to the sparseness of the population there was little danger of dispute as to boundaries, and this segregation in the majority of cases had been neglected before our acquisition of the country. from the size of the grants and the want of definite boundaries, arose nearly all the difficulties and complaints of the early settlers. upon the discovery of gold, immigrants from all parts of the world rushed into the country, increasing the population in one or two years from a few thousand to several hundred thousand. a large number crossed the plains from the western states, and many of them sought for farming lands upon which to settle. to them a grant of land, leagues in extent, seemed a monstrous wrong to which they could not be reconciled. the vagueness, also, in many instances, of the boundaries of the land claimed gave force and apparent reason to their objections. they accordingly settled upon what they found unenclosed or uncultivated, without much regard to the claims of the mexican grantees. if the land upon which they thus settled was within the tracts formerly occupied by the grantees with their herds, they denied the validity of grants so large in extent. if the boundaries designated enclosed a greater amount than that specified in the grants, they undertook to locate the supposed surplus. thus, if a grant were of three leagues within boundaries embracing four, the immigrant would undertake to appropriate to himself a portion of what he deemed the surplus; forgetting that other immigrants might do the same thing, each claiming that what he had taken was a portion of such surplus, until the grantee was deprived of his entire property. when i was brought to consider the questions to which this condition of things gave rise, i assumed at the outset that the obligations of the treaty with mexico were to be respected and enforced. this treaty had stipulated for the protection of all rights of property of the citizens of the ceded country; and that stipulation embraced inchoate and equitable rights, as well as those which were perfect. it was not for the supreme court of california to question the wisdom or policy of mexico in making grants of such large portions of her domain, or of the united states in stipulating for their protection. i felt the force of what judge grier had expressed in his opinion in the case of the united states vs. sutherland, in the th of howard, that the rhetoric which denounced the grants as enormous monopolies and princedoms might have a just influence when urged to those who had a right to give or refuse; but as the united states had bound themselves by a treaty to acknowledge and protect all _bona fide_ titles granted by the previous government, the court had no discretion to enlarge or contract such grants to suit its own sense of propriety or to defeat just claims, however extensive, by stringent technical rules of construction to which they were not originally subjected. since then, while sitting on the bench of the supreme court of the united states, i have heard this obligation of our government to protect the rights of mexican grantees stated in the brilliant and powerful language of judge black. in the fossat case, referring to the land claimed by one justo larios, a mexican grantee, he said: "the land we are claiming never belonged to this government. it was private property under a grant made long before our war with mexico. when the treaty of guadalupe hidalgo came to be ratified--at the very moment when mexico was feeling the sorest pressure that could be applied to her by the force of our armies, and the diplomacy of our statesmen--she utterly refused to cede her public property in california unless upon the express condition that all private titles should be faithfully protected. we made the promise. the gentleman sits on this bench who was then our minister there.[ ] with his own right hand he pledged the sacred honor of this nation that the united states would stand over the grantees of mexico and keep them safe in the enjoyment of their property. the pledge was not only that the government itself would abstain from all disturbance of them, but that every blow aimed at their rights, come from what quarter it might, should be caught upon the broad shield of our blessed constitution and our equal laws." "it was by this assurance thus solemnly given that we won the reluctant consent of mexico to part with california. it gave us a domain of more than imperial grandeur. besides the vast extent of that country, it has natural advantages such as no other can boast. its valleys teem with unbounded fertility, and its mountains are filled with inexhaustible treasures of mineral wealth. the navigable rivers run hundreds of miles into the interior, and the coast is indented with the most capacious harbors in the world. the climate is more healthful than any other on the globe: men can labor longer with less fatigue. the vegetation is more vigorous and the products more abundant; the face of the earth is more varied, and the sky bends over it with a lovelier blue.--that was what we gained by the promise to protect men in the situation of justo larios, their children, their alienees, and others claiming through them. it is impossible that in this nation they will ever be plundered in the face of such a pledge."--( wallace, .) actuated by this principle--that fidelity to a nation's pledge is a sacred duty, and that justice is the highest interest of the country, i endeavored, whenever the occasion presented itself, and my associates heartily co-operated with me, to protect the mexican grantees. their grants contained a stipulation for the possession of the lands granted, inasmuch as they were subject to the conditions of cultivation and occupancy, and a failure to comply with the conditions was considered by the tribunals of the united states as a most material circumstance in the determination of the right of the grantees to a confirmation of their claims. i held, therefore, with the concurrence of my associates, that the grantees, whether they were to be considered as having a legal or an equitable right to the lands, were entitled to their possession until the action of the government upon their claims, and, therefore, that they could recover in ejectment. and when the grant was not a mere float, but was of land within defined boundaries, which embraced a greater quantity than that specified in it, with a provision that the surplus should be measured off by the government, i held that until such measurement the grantee could hold the whole as against intruders, and until then he was a tenant in common with the government. as i said in one of my opinions, speaking for the court, until such measurement no individual could complain, much less could he be permitted to determine in advance, that any particular locality would fall within the supposed surplus, and thereby justify its forcible seizure and detention by himself. "if one person could in this way appropriate a particular parcel to himself, all persons could do so; and thus the grantee, who is the donee of the government, would be stripped of its bounty for the benefit of those who were not in its contemplation and were never intended to be the recipients of its favors."[ ] these views have since met with general assent in california and have been approved by the supreme court of the united states.[ ] but at that time they gave great offence to a large class, and the judges were denounced in unmeasured terms as acting in the interests of monopolists and land-grabbers. even now, when the wisdom and justice of their action are seen and generally recognized, words of censure for it are occasionally whispered through the press. persons sometimes seem to forget that to keep the plighted faith of the nation, to preserve from reproach its fair fame, where its honor is engaged, is one of the highest duties of all men in public life. the action of the court as to the possession of the public lands of the united states met with more favor. the position of the people of california with respect to the public lands was unprecedented. the discovery of gold brought, as already stated, an immense immigration to the country. the slopes of the sierra nevada were traversed by many of the immigrants in search of the precious metals, and by others the tillable land was occupied for agricultural purposes. the title was in the united states, and there had been no legislation by which it could be acquired. conflicting possessory claims naturally arose, and the question was presented as to the law applicable to them. as i have mentioned in my narrative of reminiscences, the legislature in had provided that in suits before magistrates for mining claims, evidence of the customs, usages, and regulations of miners in their vicinage should be admissible, and, when not in conflict with the constitution and laws of the united states, should govern their decision, and that the principle thus approved was soon applied in actions for mining claims in all courts. in those cases it was considered that the first possessor or appropriator of the claim had the better right as against all parties except the government, and that he, and persons claiming under him, were entitled to protection. this principle received the entire concurrence of my associates, and was applied by us, in its fullest extent, for the protection of all possessory rights on the public lands. thus, in coryell vs. cain, i said, speaking for the court: "it is undoubtedly true, as a general rule, that the claimant in ejectment must recover upon the strength of his own title, and not upon the weakness of his adversary's, and that it is a sufficient answer to his action to show title out of him and in a third party. but this general rule has, in this state, from the anomalous condition of things arising from the peculiar character of the mining and landed interests of the country, been, to a certain extent, qualified and limited. the larger portion of the mining lands within the state belong to the united states, and yet that fact has never been considered as a sufficient answer to the prosecution of actions for the recovery of portions of such lands. actions for the possession of mining claims, water privileges, and the like, situated upon the public lands, are matters of daily occurrence, and if the proof of the paramount title of the government would operate to defeat them, confusion and ruin would be the result. in determining controversies between parties thus situated, this court proceeds upon the presumption of a grant from the government to the first appropriator of mines, water privileges, and the like. this presumption, which would have no place for consideration as against the assertion of the rights of the superior proprietor, is held absolute in all those controversies. and with the public lands which are not mineral lands, the title, as between citizens of the state, where neither connects himself with the government, is considered as vested in the first possessor, and to proceed from him."--( cal., p. .) the difficulties attendant upon any attempt to give security to landed possessions in the state, arising from the circumstances i have narrated, were increased by an opinion, which for some time prevailed, that the precious metals, gold and silver, found in various parts of the country, whether in public or private lands, belonged to the state by virtue of her sovereignty. to this opinion a decision of the supreme court of the state, made in , gave great potency. in hicks vs. bell, decided that year, the court came to that conclusion, relying upon certain decisions of the courts of england recognizing the right of the crown to those metals. the principal case on the subject was that of the queen vs. the earl of northumberland, reported in plowden. the counsel of the queen in that case gave, according to our present notions, some very fanciful reasons for the conclusion reached, though none were stated in the judgment of the court. there were three reasons, said the counsel, why the king should have the mines and ores of gold and silver within the realm, in whatsoever land they were found: "the first was, in respect to the excellency of the thing, for of all things which the soil within this realm produces or yields, gold and silver are the most excellent, and of all persons in the realm, the king is, in the eye of the law, most excellent. and the common law, which is founded upon reason, appropriates everything to the person whom it best suits, as common and trivial things to the common people, things of more worth to persons in a higher and superior class, and things most excellent to those persons who excel all others; and because gold and silver are the most excellent things which the soil contains, the law has appointed them (as in reason it ought) to the person who is most excellent, and that is the king.--the second reason was, in respect of the necessity of the thing. for the king is the head of the weal-public and the subjects are his members; and the office of the king, to which the law has appointed him, is to preserve his subjects; and their preservation consisted in two things, viz., in an army to defend them against hostilities, and in good laws. and an army cannot be had and maintained without treasure, for which reason some authors, in their books, call treasure the sinews of war; and, therefore, inasmuch as god has created mines within this realm, as a natural provision of treasure for the defence of the realm, it is reasonable that he who has the government and care of the people, whom he cannot defend without treasure, should have the treasure wherewith to defend them.--the third reason was, in respect of its convenience to the subjects in the way of mutual commerce and traffic. for the subjects of the realm must, of necessity, have intercourse or dealing with one another, for no individual is furnished with all necessary commodities, but one has need of the things which another has, and they cannot sell or buy together without coin.--and if the subject should have it (the ore of gold or silver) the law would not permit him to coin it, nor put a print or value upon it, for it belongs to the king only to fix the value of coin, and to ascertain the price of the quantity, and to put the print upon it, which being done, the coin becomes current for so much as the king has limited.--so that the body of the realm would receive no benefit or advantage if the subject should have the gold and silver found in mines in his land; but on the other hand, by appropriating it to the king, it tends to the universal benefit of all the subjects in making their king able to defend them with an army against all hostilities, and when he has put the print and value upon it, and has dispersed it among his subjects, they are thereby enabled to carry on mutual commerce with one another, and to buy and sell as they have occasion, and to traffic at their pleasure. therefore, for these reasons, viz., for the excellency of the thing, and for the necessity of it, and the convenience that will accrue to the subjects, the common law, which is no other than pure and tried reason, has appropriated the ore of gold and silver to the king, in whatever land it be found." the supreme court of the state, without considering the reasons thus assigned in the case in plowden, adopted its conclusion; and as the gold and silver in the british realm are there held to belong to the crown, it was concluded, on the hypothesis that the united states have no municipal sovereignty within the limits of the state, that they must belong in this country to the state. the state, therefore, said the court, "has solely the right to authorize them" (the mines of gold and silver) "to be worked; to pass laws for their regulation; to license miners; and to affix such terms and conditions as she may deem proper to the freedom of their use. in the legislation upon this subject she has established the policy of permitting all who desire it to work her mines of gold and silver, with or without conditions, and she has wisely provided that their conflicting claims shall be adjudicated by the rules and customs which may be established by bodies of them working in the same vicinity."--( cal., .) the miners soon grasped the full scope of this decision, and the lands of private proprietors were accordingly invaded for the purpose of mining as freely as the public lands. it was the policy of the state to encourage the development of the mines, and no greater latitude in exploration could be desired than was thus sanctioned by the highest tribunal of the state. it was not long, however, before a cry came up from private proprietors against the invasion of their possessions which the decision had permitted; and the court was compelled to put some limitation upon the enjoyment by the citizen of this right of the state. accordingly, within two years afterwards, in stoakes vs. barrett, ( cal., ,) it held that although the state was the owner of the gold and silver found in the lands of private individuals as well as in the public lands, "yet to authorize an invasion of private property in order to enjoy a public franchise would require more specific legislation than any yet resorted to." the spirit to invade other people's lands, to which the original decision gave increased force against the intention of its authors, could not be as easily repressed as it was raised in the crowd of adventurers, who filled the mining regions. accordingly, long before i went on the bench, the right to dig for the precious metals on the lands of private individuals was stoutly asserted under an assumed license of the state. and afterwards, in the case of biddle boggs vs. the merced mining co., which came before the court in , where the plaintiff claimed under a patent of the united states, issued upon the confirmation of a mexican grant, the existence of this license was earnestly maintained by parties having no connection with the government, nor any claim of title to the land. its existence was, however, repudiated by the court, and speaking for it in that case i said: "there is gold in limited quantities scattered through large and valuable districts, where the land is held in private proprietorship, and under this pretended license the whole might be invaded, and, for all useful purposes, destroyed, no matter how little remunerative the product of the mining. the entry might be made at all seasons, whether the land was under cultivation or not, and without reference to its condition, whether covered with orchards, vineyards, gardens, or otherwise. under such a state of things, the proprietor would never be secure in his possessions, and without security there would be little development, for the incentive to improvement would be wanting. what value would there be to a title in one man, with a right of invasion in the whole world? and what property would the owner possess in mineral land--the same being in fact to him poor and valueless just in proportion to the actual richness and abundance of its products? there is something shocking to all our ideas of the rights of property in the proposition that one man may invade the possessions of another, dig up his fields and gardens, cut down his timber, and occupy his land, under the pretence that he has reason to believe there is gold under the surface, or if existing, that he wishes to extract and remove it." at a later day the court took up the doctrine, that the precious metals belonged to the state by virtue of her sovereignty, and exploded it. the question arose in moore vs. smaw, reported in th california, and in disposing of it, speaking for the court, i said: "it is undoubtedly true that the united states held certain rights of sovereignty over the territory which is now embraced within the limits of california, only in trust for the future state, and that such rights at once vested in the new state upon her admission into the union. but the ownership of the precious metals found in public or private lands was not one of those rights. such ownership stands in no different relation to the sovereignty of a state than that of any other property which is the subject of barter and sale. sovereignty is a term used to express the supreme political authority of an independent state or nation. whatever rights are essential to the existence of this authority are rights of sovereignty. thus the right to declare war, to make treaties of peace, to levy taxes, to take private property for public uses, termed the right of eminent domain, are all rights of sovereignty, for they are rights essential to the existence of supreme political authority. in this country, this authority is vested in the people, and is exercised through the joint action of their federal and state governments. to the federal government is delegated the exercise of certain rights or powers of sovereignty; and with respect to sovereignty, rights and powers are synonymous terms; and the exercise of all other rights of sovereignty, except as expressly prohibited, is reserved to the people of the respective states, or vested by them in their local governments. when we say, therefore, that a state of the union is sovereign, we only mean that she possesses supreme political authority, except as to those matters over which such authority is delegated to the federal government, or prohibited to the states; in other words, that she possesses all the rights and powers essential to the existence of an independent political organization, except as they are withdrawn by the provisions of the constitution of the united states. to the existence of this political authority of the state--this qualified sovereignty, or to any part of it--the ownership of the minerals of gold and silver found within her limits is in no way essential. the minerals do not differ from the great mass of property, the ownership of which may be in the united states, or in individuals, without affecting in any respect the political jurisdiction of the state. they may be acquired by the state, as any other property may be, but when thus acquired she will hold them in the same manner that individual proprietors hold their property, and by the same right; by the right of ownership, and not by any right of sovereignty." and referring to the argument of counsel in the case in plowden, i said that it would be a waste of time to show that the reasons there advanced in support of the right of the crown to the mines could not avail to sustain any ownership of the state in them. the state takes no property by reason of "the excellency of the thing," and taxation furnishes all requisite means for the expenses of government. the convenience of citizens in commercial transactions is undoubtedly promoted by a supply of coin, and the right of coinage appertains to sovereignty. but the exercise of this right does not require the ownership of the precious metals by the state, nor by the federal government, where this right is lodged under our system, as the experience of every day demonstrates. i also held that, although under the mexican law the gold and silver found in land did not pass with a grant of the land, a different result followed, under the common law, when a conveyance of land was made by an individual or by the government. by such conveyance everything passed in any way connected with the land, forming a portion of its soil or fixed to its surface. the doctrine of the right of the state by virtue of her sovereignty to the mines of gold and silver perished with this decision. it was never afterwards seriously asserted. but for holding what now seems so obvious, the judges were then grossly maligned as acting in the interest of monopolists and land owners, to the injury of the laboring class. the decisions, however, which caused for the time the greatest irritation, and excited the bitterest denunciation of the judges, related to the titles to land in the city of san francisco, though in the end they proved to be of incalculable benefit. upon the acquisition of california, there was a mexican pueblo upon the site of the city. the term _pueblo_ is aptly translated by the english word _town_. it has all the vagueness of that term, and is equally applicable to a settlement of a few individuals at a particular place, or to a regularly organized municipality. the _pueblo_ of san francisco was composed of a small population; but, as early as , it was of sufficient importance to have an _ayuntamiento_ or town council, composed of alcaldes and other officers, for its government. at the time of our acquisition of the country it was under the government of alcaldes or justices of the peace. by the laws of mexico, then in force, _pueblos_ or towns, when once officially recognized as such by the appointment of municipal magistrates, became entitled to four square leagues of land, to be measured off and assigned to them by the officers of the government. under these laws the city of san francisco, as successor of the mexican pueblo, asserted a claim to such lands, to be measured off from the northern portion of the peninsula upon which the city is situated. and the alcaldes, assuming an authority similar to that possessed by _alcaldes_ in other _pueblos_, exercised the power of distributing these municipal lands in small parcels to settlers for building, cultivation, and other uses. when the forces of the united states took possession of the city, the alcaldes, holding under the mexican government, were superseded by persons appointed by our military or naval officers having command of the place. with the increase of population which followed the discovery of gold, these magistrates were besieged by applicants for grants of land; and it was refreshing to see with what generous liberality they disposed of lots in the city--a liberality not infrequent when exercised with reference to other people's property. lots, varying in size from fifty to one hundred varas square, (a measure nearly equal to our yard,) were given away as freely as they were asked, only a small fee to meet necessary charges for preparing and recording the transfers being demanded. thus, for the lot occupied by the lick house, and worth now nearly a million, only a few dollars, less i believe than twenty, were paid. and for the lot covered by the grand hotel, admitted to be now worth half a million, less than thirty-five dollars were paid. the authority of the alcaldes to dispose of the lands was questioned by many of the new immigrants, and the validity of their grants denied. they asserted that the land was part of the public property of the united states. many holding these views gave evidence of the earnestness of their convictions by immediately appropriating to themselves as much vacant land in the city as they could conveniently occupy. disputes followed, as a matter of course, between claimants under the alcalde grants and those holding as settlers, which often gave rise to long and bitter litigation. the whole community was in fact divided between those who asserted the existence of a _pueblo_ having a right to the lands mentioned, and the power of the alcaldes to make grants of them; and those who insisted that the land belonged to the united states. early in , after the state government was organized, the legislature incorporated the city of san francisco; and, as is usual with municipal bodies not restrained by the most stringent provisions, it contracted more debts than its means warranted, and did not always make provision for their payment at maturity. numerous suits, therefore, were instituted and judgments were recovered against the city. executions followed, which were levied upon the lands claimed by her as successor of the _pueblo_. where the occupants denied the title of the city, they were generally indifferent to the sales by the sheriff. property of immense value, in some cases many acres in extent, was, in consequence, often struck off to bidders at a merely nominal price. upon the deeds of the officer, suits in ejectment were instituted in great numbers; and thus questions as to the existence of the alleged _pueblo_, and whether, if existing, it had any right to land, and the nature of such right, if any, were brought before the lower courts; and, finally, in a test case--hart vs. burnett--they found their way to the supreme court of the state. in the meantime a large number of persons had become interested in these sales, aside from the occupants of the land, and the greatest anxiety was manifested as to the decision of the court. previous decisions on the questions involved were not consistent; nor had they met the entire approval of the profession, although, the opinion prevailed generally that a mexican pueblo of some kind, owning or having an interest in lands, had existed on the site of the city upon the acquisition of the country, and that such lands, like other property of the city not used for public purposes, were vendible on execution. in , after the sale in respect to which the test case was made, the council of the city passed "the van ness ordinance," so called from the name of its author, the object of which was to settle and quiet, as far as practicable, the title of persons occupying land in the city. it relinquished and granted the right and interest of the city to lands within its corporate limits, as defined by the charter of , with certain exceptions, to parties in the actual possession thereof, by themselves or tenants, on or before the first of january, , if the possession were continued to the time of the introduction of the ordinance into the common council in june of that year; or, if interrupted by an intruder or trespasser, it had been or might be recovered by legal process. and it declared that, for the purposes of the act, all persons should be deemed in possession who held titles to land within the limits mentioned, by virtue of a grant made by the authorities of the pueblo, including alcaldes among them, before the th of july, ,--the day when the jurisdiction over the country is deemed to have passed from mexico to the united states,--or by virtue of a grant subsequently made by those authorities, if the grant, or a material portion of it, had been entered in a proper book of record deposited in the office or custody of the recorder of the county of san francisco on or before april d, . this ordinance was approved by an act of the legislature of the state in march, , and the benefit of it and of the confirmatory act was claimed by the defendant in the test case. that case was most elaborately argued by able and learned counsel. the whole law of mexico respecting _pueblos_, their powers, rights, and property, and whether, if possessing property, it was subject to forced sale, the effect upon such land of the change of sovereignty to the united states, the powers of alcaldes in disposing of the property of these municipalities, the effect of the van ness ordinance, and the confirmatory act of the legislature, were all discussed with a fullness and learning which left nothing unexplained or to be added. for weeks afterwards the judges gave the most laborious attention to the questions presented, and considered every point and the argument on both sides of it with anxious and painful solicitude to reach a just conclusion. the opinion of the court, prepared by mr. justice baldwin, is without precedent for the exhaustive learning and research it exhibits upon the points discussed. the court held, among other things, that, at the date of the conquest and cession of the country, san francisco was a pueblo, having the rights which the law of mexico conferred upon such municipal organizations; that as such pueblo it had proprietary rights to certain lands, which were held in trust for the public use of the city, and were not subject to seizure and sale under execution; that such portions as were not set apart for common use or special purposes could be granted in lots to private persons by its ayuntamiento or by alcaldes or other officers who represented or had succeeded to its powers; that the lands, and the trusts upon which they were held, were public and municipal in their nature, and since the organization of the state were under its control and supervision; that the act of the legislature confirming the van ness ordinance was a proper exercise of the power of the state, and vested in the possessors therein described, as against the city and state, a title to the lands mentioned; and that the city held the lands of the pueblo, not legally disposed of by its officers, unaffected by sheriff's sales under executions against her. this decision was of the greatest importance both to the city and the occupants of land within its limits. the van ness ordinance had reserved from grant for the uses of the city all the lots which it then occupied or had set apart for public squares, streets, sites for school-houses, city hall and other buildings belonging to the corporation, and also such other lots as it might subsequently select for public purposes within certain designated limits. all these were by the decision at once released from any possible claim by virtue of sales on executions. all persons occupying lands not thus reserved were by the decision quieted in their possession, so far as any claim of the city or state could be urged against them. property to the value of many millions was thereby rescued from the spoiler and speculator, and secured to the city or settler. peace was given to thousands of homes. yet for this just and most beneficent judgment there went up from a multitude, who had become interested in the sales, a fierce howl of rage and hate. attacks full of venom were made upon judge baldwin and myself, who had agreed to the decision. no epithets were too vile to be applied to us; no imputations were too gross to be cast at us. the press poured out curses upon our heads. anonymous circulars filled with falsehoods, which malignity alone could invent, were spread broadcast throughout the city, and letters threatening assassination in the streets or by-ways were sent to us through the mail. the violence of the storm, however, was too great to last. gradually it subsided and reason began to assert its sway. other words than those of reproach were uttered; and it was not many months before the general sentiment of the people of the city was with the decision. a year did not elapse before the great good it had conferred upon the city and settler was seen and appreciated. since then its doctrines have been repeatedly re-affirmed. they have been approved by the supreme court of the united states; and now no one doubts their soundness. after that decision there was still wanting for the complete settlement of titles in the city the confirmation by the tribunals of the united states of her claim to the lands. the act of congress of march d, , creating the board of land commissioners, provided that all claims to land in california, by virtue of any right or title derived from the spanish or mexican government, should be presented to the board for examination and adjudication. accordingly, the city of san francisco, soon after the organization of the board, in , presented her claim for four square leagues as successor of the _pueblo_, and asked for its confirmation. in december, , the board confirmed the claim for a portion of the four square leagues, but not for the whole; the portion confirmed being embraced within the charter limits of . the city was dissatisfied with this limitation, and appealed from the decision of the commissioners to the district court of the united states. an appeal was also taken by the united states, but was subsequently withdrawn. the case remained in the district court without being disposed of until september, , nearly ten years, when, under the authority of an act of congress of july st of that year, it was transferred to the circuit court of the united states. whilst the case was pending in the district court, the population of the city had increased more than four-fold; and improvements of a costly character had been made in all parts of it. the magnitude of the interests which had thus grown up demanded that the title to the land upon which the city rested should be in some way definitely settled. to expedite this settlement, as well as the settlement of titles generally in the state, was the object of the act of july st, . its object is so stated in its title. it was introduced by senator conness, of california, who was alive to everything that could tend to advance the interests of the state. he felt that nothing would promote its peace and prosperity more than giving security to its land titles, and he labored earnestly to bring about that result. in framing the act, he consulted me, and at my suggestion introduced sections four, five, and seven, which i drafted and gave to him, but without the exception and proviso to the fifth section, which were added at the request of the commissioner of the land office.[ ] the fourth section authorized the district court to transfer to the circuit court cases pending before it arising under the act of march d, , affecting the title to lands within the corporate limits of a city or town, and provided that in such cases both the district and circuit judges might sit. by the fifth section, all the right and title of the united states to the land within the corporate limits of the city, as defined by its charter of , were relinquished and granted to the city and its successors for the uses and purposes specified in the van ness ordinance. the exceptions incorporated at the suggestion of the commissioner of the land office related to parcels of land previously or then occupied by the united states for military, naval, or other public purposes, and such other parcels as might be subsequently designated for such purposes by the president within one year after the return to the land office of an approved plat of the exterior limits of the city. the holders of grants from the authorities of the _pueblo_ and the occupants of land within the limits of the charter of were thus quieted in their possessions. but as the claim of the city was for a much greater quantity, the case for its confirmation was still prosecuted. under the fourth section it was transferred to the circuit court, as already stated; and it was soon afterwards brought to a hearing. on the th of october, , it was decided. for some reason i do not now recall, the district judge was unable to sit with me, and the case was, therefore, heard before me alone. i held that a pueblo of some kind existed at the site of the present city of san francisco upon the cession of the country; that as such it was entitled to the possession of certain lands to the extent of four square leagues; and that the present city had succeeded to such rights, following, in these particulars, the decision which had previously been made in the case of hart vs. burnett, by the supreme court of the state, in which i had participated. i accordingly decided that the city was entitled to have her claim confirmed to four square leagues of land, subject to certain reservations. but i also added that the lands to which she was entitled had not been given to her by the laws of the former government in absolute property with full right of disposition and alienation, but to be held in trust for the benefit of the whole community, with such powers of use, disposition, and alienation as had been or might thenceforth be conferred upon her or her officers for the execution of the trust. the trust character of the city's title was expressed in the decree of confirmation. the decision was rendered on the th of october, , as stated, and a decree was soon afterwards entered; but as a motion was made for a re-hearing, the control over it was retained by the circuit court until may of the following year. upon the suggestion of counsel, it was then modified in some slight particulars so as to limit the confirmation to land above ordinary high water mark, as it existed at the date of the acquisition of the country, namely, the th of july, . on the th of may, , the decree was finally settled and entered. appeals from it were prosecuted to the supreme court both by the united states and by the city; by the united states from the whole decree, and by the city from so much of it as included certain reservations in the estimate of the quantity of land confirmed. in october following i proceeded as usual to washington to attend the then approaching term of the supreme court, and thought no more of the case until my attention was called to it by a most extraordinary circumstance. just before leaving san francisco mr. rulofson, a photographer of note, requested me to sit for a photograph, expressing a desire to add it to his gallery. i consented, and a photograph of a large size was taken. as i was leaving his rooms he observed that he intended to make some pictures of a small size from it, and would send me a few copies. on the morning of the th of january following ( ), at washington, mr. delos lake, a lawyer of distinction in california, at one time a district judge of the state, and then district attorney of the united states, joined me, remarking, as he did so, that the arrival of the california steamer at new york had been telegraphed, and he hoped that i had received some letters for him, as he had directed his letters to be forwarded to my care. i replied that when i left my room my messenger had not brought my mail; but if he would accompany me there we would probably find it. accordingly, we proceeded to my room, where on the centre-table lay my mail from california, consisting of a large number of letters and papers. among them i noticed a small package about an inch and a half thick, three inches in breadth, and three and a half in length. it was addressed as follows, the words being printed: [illustration: per steamer. [three postage stamps.] hon. stephen j. field, washington, d.c.] it bore the stamp of the san francisco post-office upon the address. my name had evidently been cut from the california reports, but the words "washington, d.c.," and "per steamer," had been taken from a newspaper. the slips were pasted on the package. on the opposite side were the words in print: [illustration: from geo. h. johnson's pioneer gallery, and clay street, san francisco.] as i took up the package i remarked that this must come from rulofson;--no, i immediately added, rulofson has nothing to do with the pioneer gallery. it then occurred to me that it might be a present for my wife, recollecting at the moment that the mail came by the steamer which sailed from san francisco about christmas time. it may be, i said to myself, a christmas present for my wife. i will open it just far enough to see, and, if it be intended for her, i will close it and forward it to new york, where she was at the time. i accordingly tore off the covering and raised the lid just far enough to enable me to look inside. i was at once struck with the black appearance of the inside. "what is this, lake?" i said, addressing myself to my friend. judge lake looked over my shoulder into the box, as i held it in my hand, and at once exclaimed, "it is a torpedo. don't open it." i was startled by the suggestion, for the idea of a torpedo was the last thing in the world to occur to me. i immediately laid the package on the sill of the window, where it was subjected to a careful inspection by us both, so far as it could be made with the lid only an eighth of an inch open. soon afterwards judge lake took the package to the capitol, which was directly opposite to my rooms, and to the office of the clerk of the supreme court, and showed it to mr. broom, one of the deputies. they dipped the package into water and left it to soak for some minutes. they then took it into the carriage way under the steps leading to the senate chamber, and shielding themselves behind one of the columns threw the box against the wall. the blow broke the hinge of the lid and exposed the contents. a murderous contrivance it was;--a veritable infernal machine! twelve cartridges such as are used in a common pistol, about an inch in length, lay imbedded in a paste of some kind, covered with fulminating powder, and so connected with a bunch of friction matches, a strip of sand-paper, and a piece of linen attached to the lid, that on opening the box the matches would be ignited and the whole exploded. the package was sent to the war department, and the following report was returned, giving a detailed description of the machine: washington arsenal, _jan. , _. _gen. a.b. dyer, chief of ordnance, washington, d.c._ sir: agreeably to your instructions, i have examined the explosive machine sent to this arsenal yesterday. it is a small miniature case containing twelve copper cartridges, such as are used in a smith & wesson pocket pistol, a bundle of sensitive friction matches, a strip of sand-paper, and some fulminating powder. the cartridges and matches are imbedded in common glue to keep them in place. the strip of sand-paper lies upon the heads of the matches. one end has been thrown back, forming a loop, through which a bit of thread evidently passed to attach it to the lid of the case. this thread may be seen near the clasp of the lid, broken in two. there are two wire staples, under which the strip of sand-paper was intended to pass to produce the necessary pressure on the matches. the thread is so fixed that the strip of sand-paper could be secured to the lid after it was closed. the whole affair is so arranged that the opening of the lid would necessarily ignite the matches, were it not that the lower end of the strip has become imbedded in the glue, which prevents it from moving. that the burning of the matches may explode the cartridges, there is a hole in each case, and all are covered with mealed powder. one of the cartridges has been examined and found to contain ordinary grain powder. two of the cartridges were exploded in a closed box sent herewith. the effect of the explosion was an indentation on one side of the box. very respectfully, your obedient servant, j.g. benton, _major of ord. and bvt. col. comdg._ between the outside covering and the box there were two or three folds of tissue-paper--placed there, no doubt, to prevent the possibility of an explosion from the stamping at the post office, or the striking against other packages during the voyage from san francisco to new york. on the inside of the lid was pasted a slip cut from a san francisco paper, dated october st, , stating that on the day previous i had decided the case of the city against the united states, involving its claim to four square leagues of land, and giving the opening lines of my opinion. the secretary of war, mr. stanton, immediately telegraphed in cypher to general halleck, then in command in san francisco, to take active measures to find out, if possible, the person who made and sent the infernal machine. general halleck put the detectives of his department on the search. others employed detectives of the san francisco police--but all in vain. suspicions were excited as to the complicity of different parties, but they were never sustained by sufficient evidence to justify the arrest of any one. the instrument, after remaining in the hands of the detectives in san francisco for nearly two years, was returned to me and it is now in my possession.[ ] it has often been a matter of wonder to me how it was that some good angel whispered to me not to open the box. my impetuous temperament would naturally have led me to tear it open without delay. probably such hesitation in opening a package directed to me never before occurred, and probably never will again. who knows but that a mother's prayer for the protection of her son, breathed years before, was answered then? who can say that her spirit was not then hovering over him and whispering caution in his ear? that i should on that occasion have departed from my usual mode of action is strange--passing strange. * * * * * as already stated, the fifth section of the act of congress of july st, , which granted the interest of the united states to the lands within the charter limits of to the city and its successors, in trust for the benefit of possessors under the van ness ordinance, among other things provided for certain reservations to be subsequently made by the president, within one year after an approved plat showing the exterior limits of the city had been filed in the land office. no such map was filed nor were any reservations made. the case on appeal in the meantime was not reached in the supreme court, and was not likely to be for a long period. ascertaining from general halleck that the secretary of war would not recommend any further reservations to be made from the municipal lands, and that probably none would be made, i drew a bill to quiet the title of the city to all the lands embraced within the decree of confirmation, and gave it to senator conness, who being ready, as usual, to act for the interests of the city, immediately took charge of it and secured its passage in the senate. in the house mr. mcruer, member of congress from california, took charge of it, and with the assistance of the rest of the delegation from the state, procured its passage there. it was signed by the president and became a law on the th of march, . by it all the right and title of the united states to the land covered by the decree of the circuit court were relinquished and granted to the city, and the claim to the land was confirmed, subject, however, to certain reservations and exceptions; and upon trust that all the land not previously granted to the city, should be disposed of and conveyed by the city to the parties in the bona fide actual possession thereof, by themselves or tenants, on the passage of the act, in such quantities, and upon such terms and conditions, as the legislature of the state of california might prescribe, except such parcels thereof as might be reserved and set apart by ordinance of the city for public uses. not long afterwards both the appeals to the supreme court were dismissed by stipulation of parties. the litigation over the source of title to lands within the limits of the city, not disposed of by independent grants of the government previous to the acquisition of the country, was thus settled and closed. the title of the city rests, therefore, upon the decree of the circuit court entered on the th day of may, , and this confirmatory act of congress. it has been so adjudged by the supreme court of the united states.--(see townsend vs. greely, wall., ; grisar vs. mcdowell, wall., .) the title of the city being settled, the municipal authorities took measures, under the provisions of the confirmatory act, to set apart lands for school-houses, hospitals, court-house buildings, and other public purposes, and through their exertions, instigated and encouraged by mr. mccoppin, the accomplished and efficient mayor of the city at that time, the ocean park, which looks out upon the pacific ocean and the golden gate, and is destined to be one of the finest parks in the world, was set apart and secured to the city for all time. as the grounds thus taken were, in many instances, occupied by settlers, or had been purchased from them, an assessment was levied by the city and sanctioned by the legislature upon other lands conveyed to the occupants, as a condition of their receiving deeds from the city; and the money raised was applied to compensate those whose lands had been appropriated. [ ] mr. justice clifford. [ ] cornwall vs. culver, cal., . [ ] van reynegan vs. bolton, u.s., . [ ] see exhibit j, in appendix. [ ] see exhibit k, in appendix. hostility to the supreme court after the civil war.--the scofield resolution. the irritations and enmities created by the civil war did not end with the cessation of active hostilities. they were expressed whenever any acts of the military officers of the united states were called in question; or any legislation of the states or of congress in hostility to the insurgents was assailed; or the validity of the "reconstruction acts" was doubted. and they postponed that cordial reconciliation which all patriotic men earnestly desired. the insurrection was overthrown after a contest which, for its magnitude and the number and courage of the belligerents, was without a parallel in history. the immense loss of life and destruction of property caused by the contest, and the burden of the enormous debt created in its prosecution, left a bitterness in the hearts of the victors which it was difficult to remove. the assassination of mr. lincoln added intensity to the feeling. that act of a madman, who had conceived the idea that he might become in our history what brutus was in the history of rome, the destroyer of the enemy of his country, was ascribed to a conspiracy of leading confederates. the proclamation of the secretary of war, offering a reward for the arrest of parties charged with complicity in the act, gave support to this notion. the wildest stories, now known to have had no foundation, were circulated and obtained ready credence among the people of the north, already wrought up to the highest pitch of excitement. they manifested, therefore, great impatience when a doubt was cast upon the propriety or validity of the acts of the government, or of its officers, which were taken for the suppression of the rebellion or "the reconstruction" of the states; and to question their validity was almost considered proof of hostility to the union. by those who considered the union indissoluble, except by the common consent of the people of the several states, the organization known as the confederate states could only be regarded as unlawful and rebellious, to be suppressed, if necessary, by force of arms. the constitution prohibits any treaty, alliance, or confederation by one state with another, and it declares on its face that it is the supreme law of the land. the confederate government, therefore, could only be treated by the united states as the military representative of the insurrection against their authority. belligerent rights were accorded to its armed forces in the conduct of the war, and they thus had the standing and rights of parties engaged in lawful warfare. but no further recognition was ever given to it, and when those forces were overthrown its whole fabric disappeared. but not so with the insurgent states which had composed the confederacy. they retained the same form of government and the same general system of laws, during and subsequent to the war, which they had possessed previously. their organizations as distinct political communities were not destroyed by the war, although their relations to the central authority were changed. and their acts, so far as they did not impair or tend to impair the supremacy of the general government, or the rights of citizens of the loyal states, were valid and binding. all the ordinary authority of government for the protection of rights of persons and property, the enforcement of contracts, the punishment of crime, and the due order of society, continued to be exercised by them as though no civil war had existed. there was, therefore, a general expectation throughout the country, upon the cessation of actual hostilities, that these states would be restored to their former relations in the union as soon as satisfactory evidence was furnished to the general government that resistance to its authority was overthrown and abandoned, and its laws were enforced and obeyed. some little time might elapse before this result would clearly appear. it was not expected that they would be immediately restored upon the defeat of the armies of the confederacy, nor that their public men, with the animosities of the struggle still alive, would at once be admitted into the councils of the nation, and allowed to participate in its government. but whenever it was satisfactorily established that there would be no renewal of the struggle and that the laws of the united states would be obeyed, it was generally believed that the restoration of the states would be an accomplished fact. president johnson saw in the institution of slavery the principal source of the irritation and ill-feeling between the north and the south, which had led to the war. he believed, therefore, that its abolition should be exacted, and that this would constitute a complete guaranty for the future. at that time the amendment for its abolition, which had passed the two houses of congress, was pending before the states for their action. he was of opinion, and so expressed himself in his first message to congress, that its ratification should be required of the insurgent states on resuming their places in the family of the union; that it was not too much, he said, to ask of them "to give this pledge of perpetual loyalty and peace." "until it is done," he added, "the past, however much we may desire it, will not be forgotten. the adoption of the amendment re-unites us beyond all power of disruption. it heals the wound that is still imperfectly closed; it removes slavery, the element which has so long perplexed and divided the country; it makes of us once more a united people, renewed and strengthened, bound more than ever to mutual affection and support." it would have been most fortunate for the country had this condition been deemed sufficient and been accepted as such. but the north was in no mood for a course so simple and just. its leaders clamored for more stringent measures, on the ground that they were needed for the protection of the freedmen, and the defeat of possible schemes for a new insurrection. it was not long, therefore, before a system of measures was adopted, which resulted in the establishment at the south of temporary governments, subject to military control, the offices of which were filled chiefly by men alien to the states and indifferent to their interests. the misrule and corruption which followed are matters of public history. it is no part of my purpose to speak of them. i wish merely to refer to the state of feeling existing upon the close of the civil war as introductory to what i have to say of the unfriendly disposition manifested at the north towards the supreme court and some of its members, myself in particular. acts of the military officers, and legislation of some of the states and of congress, during and immediately succeeding the war, were soon brought to the consideration of the court. its action thereon was watched by members of the republican party with manifest uneasiness and distrust. its decision in the dred scott case had greatly impaired their confidence in its wisdom and freedom from political influences. many of them looked upon that decision as precipitating the war upon the country, by the sanction it gave to efforts made to introduce slavery into the territories; and they did not hesitate to express their belief that the sympathies of a majority of the court were with the confederates. intimations to that effect were thrown out in some of the journals of the day, at first in guarded language, and afterwards more directly, until finally it came to be generally believed that it was the purpose of the court, if an opportunity offered, to declare invalid most of the legislation relating to the southern states which had been enacted during the war and immediately afterwards. nothing could have been more unjust and unfounded. many things, indeed, were done during the war, and more after its close, which could not be sustained by any just construction of the limitations of the constitution. it was to be expected that many things would be done in the heat of the contest which could not bear the examination of calmer times. mr. chief justice chase expressed this fact in felicitous language when speaking of his own change of views as to the validity of the provision of law making government notes a legal tender, he said: "it is not surprising that amid the tumult of the late civil war, and under the influence of apprehensions for the safety of the republic almost universal, different views, never before entertained by american statesmen or jurists, were adopted by many. the time was not favorable to considerate reflection upon the constitutional limits of legislative or executive authority. if power was assumed from patriotic motives, the assumption found ready justification in patriotic hearts. many who doubted yielded their doubts; many who did not doubt were silent. those who were strongly averse to making government notes a legal tender felt themselves constrained to acquiesce in the views of the advocates of the measure. not a few who then insisted upon its necessity, or acquiesced in that view, have, since the return of peace, and under the influence of the calmer time, reconsidered this conclusion, and now concur in those which we have just announced." similar language might be used with reference to other things done during the war and afterwards, besides making government notes a legal tender. the court and all its members appreciated the great difficulties and responsibilities of the government, both in the conduct of the war, and in effecting an early restoration of the states afterwards, and no disposition was manifested at any time to place unnecessary obstacles in its way. but when its measures and legislation were brought to the test of judicial judgment there was but one course to pursue, and that was to apply the law and the constitution as strictly as though no war had ever existed. the constitution was not one thing in war, and another in peace. it always spoke the same language, and was intended as a rule for all times and occasions. it recognized, indeed, the possibility of war, and, of course, that the rules of war had to be applied in its conduct in the field of military operations. the court never presumed to interfere there, but outside of that field, and with respect to persons not in the military service within states which adhered to the union, and after the war in all the states, the court could not hesitate to say that the constitution, with all its limitations upon the exercise of executive and legislative authority, was, what it declares on its face to be, the supreme law of the land, by which all legislation, state and federal, must be measured. the first case growing out of the acts of military officers during the war, which attracted general attention and created throughout the north an uneasy feeling, was the milligan case, which was before the court on habeas corpus. in october, , milligan, a citizen of the united states and a resident of indiana, had been arrested by order of the military commander of the district and confined in a military prison near the capital of the state. he was subsequently, on the st of the same month, put on trial before a military commission convened at indianapolis, in that state, upon charges of: st. conspiring against the government of the united states; d. affording aid and comfort to the rebels against the authority of the united states; d. inciting insurrection; th. disloyal practices; and th. violations of the laws of war; and was found guilty and sentenced to death by hanging. he had never been in the military service; there was no rebellion in indiana; and the civil courts were open in that state and in the undisturbed exercise of their jurisdiction. the sentence of the military commission was affirmed by the president, who directed that it should be carried into immediate execution. the condemned thereupon presented a petition to the circuit court of the united states in indiana for a writ of habeas corpus, praying to be discharged from custody, alleging the illegality of his arrest and of the proceedings of the military commission. the judges of the circuit court were divided in opinion upon the question whether the writ should be issued and the prisoner be discharged, which, of course, involved the jurisdiction of the military commission to try the petitioner. upon a certificate of the division the case was brought to the supreme court at the december term of . the case has become historical in the jurisprudence of the country, and it is unnecessary to state the proceedings at length. suffice it to say that it was argued with great ability by eminent counsel--consisting of mr. joseph e. mcdonald, now u.s. senator from indiana, mr. james a. garfield, a distinguished member of congress, mr. jeremiah s. black, the eminent jurist of pennsylvania, and mr. david dudley field, of new york, for the petitioner; and by mr. henry stanbery, the attorney-general, and gen. b.f. butler, for the government. their arguments were remarkable for learning, research, ability, and eloquence, and will repay the careful perusal not only of the student of law, but of all lovers of constitutional liberty. only a brief synopsis of them is given in the report of the case in th wallace. the decision of the court was in favor of the liberty of the citizen. its opinion was announced by mr. justice davis, and it will stand as a perpetual monument to his honor. it laid down in clear and unmistakable terms the doctrine that military commissions organized during the war, in a state not invaded nor engaged in rebellion, in which the federal courts were open and in the undisturbed exercise of their judicial functions, had no jurisdiction to try a citizen who was not a resident of a state in rebellion, nor a prisoner of war, nor a person in the military or naval service; and that congress could not invest them with any such power; and that in states where the courts were thus open and undisturbed the guaranty of trial by jury contained in the constitution was intended for a state of war as well as a state of peace, and is equally binding upon rulers and people at all times and under all circumstances. this decision was concurred in by justices nelson, grier, clifford, and myself, then constituting, with justice davis, a majority of the court. at this day it seems strange that its soundness should have been doubted by any one, yet it was received by a large class--perhaps a majority of the northern people--with disfavor, and was denounced in unmeasured terms by many influential journals. it was cited as conclusive evidence of the hostility of the court to the acts of the government for the suppression of the rebellion. the following, taken from the _daily chronicle_ of january th, , a journal of washington, edited by mr. forney, then secretary of the senate, is a fair sample of the language applied to the decision: "the opinion of the supreme court on one of the most momentous questions ever submitted to a judicial tribunal, has not startled the country more by its far-reaching and calamitous results, than it has amazed jurists and statesmen by the poverty of its learning and the feebleness of its logic. it has surprised all, too, by its total want of sympathy with the spirit in which the war for the union was prosecuted, and, necessarily, with those great issues growing out of it, which concern not only the life of the republic, but the very progress of the race, and which, having been decided on the battle-field, are now sought to be reversed by the very theory of construction which led to rebellion." at the same term with the milligan case the test-oath case from missouri was brought before the court and argued. in january, , a convention had assembled in that state to amend its constitution. its members had been elected in november previous. in april, , the constitution, as revised and amended, was adopted by the convention, and in june following by the people. elected, as the members were, in the midst of the war, it exhibited throughout traces of the animosities which the war had engendered. by its provisions the most stringent and searching oath as to past conduct known in history was required, not only of officers under it, but of parties holding trusts and pursuing avocations in no way connected with the administration of the government. the oath, divided into its separates parts, contained more than thirty distinct affirmations touching past conduct, and even embraced the expression of sympathies and desires. every person unable to take the oath was declared incapable of holding, in the state, "any office of honor, trust, or profit under its authority, or of being an officer, councilman, director, or trustee, or other manager of any corporation, public or private, now existing or hereafter established by its authority, or of acting as a professor or teacher in any educational institution, or in any common or other school, or of holding any real estate or other property in trust for the use of any church, religious society, or congregation." and every person holding, at the time the amended constitution took effect, any of the offices, trusts, or positions mentioned, was required, within sixty days thereafter, to take the oath; and, if he failed to comply with this requirement, it was declared that his office, trust, or position should _ipso facto_ become vacant. no person, after the expiration of the sixty days, was permitted, without taking the oath, "to practice as an attorney or counsellor-at-law," nor, after that period could "any person be competent as a bishop, priest, deacon, minister, elder, or other clergyman, of any religious persuasion, sect, or denomination, to teach, or preach, or solemnize marriages." fine and imprisonment were prescribed as a punishment for holding or exercising any of "the offices, positions, trusts, professions, or functions" specified, without having taken the oath; and false swearing or affirmation in taking it was declared to be perjury, punishable by imprisonment in the penitentiary. mr. cummings of missouri, a priest of the roman catholic church, was indicted and convicted in one of the circuit courts of that state, of the crime of teaching and preaching as a priest and minister of that religious denomination without having first taken the oath thus prescribed, and was sentenced to pay a fine of five hundred dollars and to be committed to jail until the same was paid. on appeal to the supreme court of the state the judgment was affirmed, and the case was brought on a writ of error to our court. it was there argued with great learning and ability by mr. montgomery blair, of washington, mr. david dudley field, of new york, and mr. reverdy johnson, of maryland, for mr. cummings; and by mr. g.p. strong and mr. john b. henderson, of missouri, the latter then united states senator for the state. it was evident, after a brief consideration of the case, that the power asserted by the state of missouri to exact this oath for past conduct from parties, as a condition of their continuing to pursue certain professions, or to hold certain trusts, might, if sustained, be often exercised in times of excitement to the oppression, if not ruin, of the citizen. for, if the state could require the oath for the acts mentioned, it might require it for any other acts of one's past life, the number and character of which would depend upon the mere will of its legislature. it might compel one to affirm, under oath, that he had never violated the ten commandments, nor exercised his political rights except in conformity with the views of the existing majority. indeed, under this kind of legislation, the most flagrant wrongs might be committed and whole classes of people deprived, not only of their political, but of their civil rights. it is difficult to speak of the whole system of expurgatory oaths for past conduct without a shudder at the suffering and oppression they were not only capable of effecting but often did effect. such oaths have never been exacted in england, nor on the continent of europe; at least i can recall no instance of the kind. test-oaths there have always been limited to an affirmation on matters of present belief, or as to present disposition towards those in power. it was reserved for the ingenuity of legislators in our country during the civil war to make test-oaths reach to past conduct. the court held that enactments of this character, operating, as they did, to deprive parties by legislative decree of existing rights for past conduct, without the formality and the safeguard of a judicial trial, fell within the inhibition of the constitution against the passage of bills of attainder. in depriving parties of existing rights for past conduct, the provisions of the constitution of missouri imposed, in effect, a punishment for such conduct. some of the acts for which such deprivation was imposed were not punishable at the time; and for some this deprivation was added to the punishments previously prescribed, and thus they fell under the further prohibition of the constitution against the passage of an _ex post facto_ law. the decision of the court, therefore, was for the discharge of the catholic priest. the judgment against him was reversed, and the supreme court of missouri was directed to order the inferior court by which he was tried to set him at liberty. immediately following the case of cummings that of _ex-parte_ garland was argued, involving the validity of the iron-clad oath, as it was termed, prescribed for attorneys and counsellors-at-law by the act of congress of january th, . mr. a.h. garland, now united states senator from arkansas, had been a member of the bar of the supreme court of the united states before the civil war. when arkansas passed her ordinance of secession and joined the confederate states, he went with her, and was one of her representatives in the congress of the confederacy. in july, , he received from the president a full pardon for all offences committed by his participation, direct or implied, in the rebellion. at the following term of the court he produced his pardon and asked permission to continue to practice as an attorney and counsellor without taking the oath required by the act of congress, and the rule of the court made in conformity with it, which he was unable to take by reason of the offices he had held under the confederate government. the application was argued by mr. matthew h. carpenter, of wisconsin, and mr. reverdy johnson, of maryland, for the petitioner--mr. garland and mr. marr, another applicant for admission, who had participated in the rebellion, filing printed arguments--and by mr. speed, of kentucky, and mr. henry stanbery, the attorney-general, on the other side. the whole subject of expurgatory oaths was discussed, and all that could be said on either side was fully and elaborately presented. the court in its decision followed the reasoning of the cummings case and held the law invalid, as applied to the exercise of the petitioner's right to practice his profession; that such right was not a mere indulgence, a matter of grace and favor, revocable at the pleasure of the court, or at the command of the legislature; but was a right of which the petitioner could be deprived only by the judgment of the court for moral or professional delinquency. the court also held that the pardon of the petitioner released him from all penalties and disabilities attached to the offence of treason committed by his participation in the rebellion, and that, so far as that offence was concerned, he was placed beyond the reach of punishment of any kind. but to exclude him by reason of that offence--that is, by requiring him to take an oath that he had never committed it--was to enforce a punishment for it notwithstanding the pardon; and that it was not within the constitutional power of congress thus to inflict punishment beyond the reach of executive clemency. i had the honor to deliver the opinion of the court in these cases--the cummings case and the garland case. at the present day both opinions are generally admitted to be sound, but when announced they were received by a portion of the northern press with apparent astonishment and undisguised condemnation. it is difficult to appreciate at this day the fierceness with which the majority of the court was assailed. that majority consisted of justices wayne, nelson, grier, clifford, and myself. i was particularly taken to task, however, as it was supposed--at least i can only so infer from the tone of the press--that because i had been appointed by mr. lincoln, i was under some sort of moral obligation to support all the measures taken by the states or by congress during the war. the following, respecting the opinion in the garland case, from the editor of the _daily chronicle_, of washington, to the _press_, of philadelphia, under date of january , , is moderate in its language compared with what appeared in many other journals: "dred scott number three has just been enacted in the supreme court of the united states, justice field, of california, taking the leading part as the representative of the majority decision against the constitutionality of the iron-clad test-oath, to prevent traitors from practicing before that high tribunal. i understand it takes the ground that, as the law is a living or profession, the oath cannot be insisted upon to take that living away, and that the president's pardon restores all such rights. the country has been repeatedly admonished that such a decision would be made about this time; nevertheless, a very considerable sensation was created when it was officially enunciated. all these movements are but preparations for a counter-revolution in the interest of slavery and treason." ---- "i learn that the opinion of justice field against the test-oath, like that against military trials in time of war, goes outside of the immediate case in issue, and indulges in a fierce onslaught upon test-oaths in general. if so, it will only add another reason for such a re-organization as will prevent the judges in the last resort from becoming the mere agents of party, or the mere defenders of rebellion. the adage constantly quoted, yet never out of fashion, that 'whom the gods wish to destroy they first make mad,' is having a pointed illustration in these successive judicial assaults upon the rights of the people. although the supreme judges hold for life, there is at once precedent, necessity, and law for such a change in the present system as will in a short time make it a fearless interpreter of republican institutions, instead of the defender and apologist of treason." the decisions were announced on the th of january, . on the d of the month, mr. boutwell, from massachusetts, introduced a bill into the house far more stringent in its provisions than the act of congress just declared invalid. it was a pitiable exhibition of hate and vengeance against all persons who had been engaged, directly or indirectly, in the rebellion. it declared that no person who had been thus engaged should be permitted to act as an attorney and counsellor in any courts of the united states; and made it the duty of the judges, when it was suggested in open court, or when they had reason to believe that any person was thus debarred, to enquire and ascertain whether he had been so engaged, and if the court was of opinion that such was the fact, he was to be excluded. the court was thus, upon the suggestion of any one, to be turned into a tribunal for the summary trial of the accused without the ordinary safeguards for the protection of his rights. in introducing it mr. boutwell, referring to the decision of the court, said that-- "if there be five judges upon the bench of the highest tribunal who have not that respect for themselves to enact rules, and to enforce proper regulations, by which they will protect themselves from the contamination of conspirators and traitors against the government of the country, then the time has already arrived when the legislative department of the government should exercise its power to declare who shall be officers of the government in the administration of the law in the courts of the union; and this bill is for that purpose." and he called for the previous question upon it. in subsequently advocating its passage, he said: "i say here upon my responsibility, with reference to the recent decision of the supreme court, that it is an offence to the dignity and respectability of the nation that this tribunal, under the general authority vested in it under the constitution and laws, does not protect itself from the contamination of rebels and traitors, until the rebellion itself shall be suppressed and those men shall be restored to their former rights as citizens of the country." this language was used in , and the last gun of the war had been fired in may, . it showed the irritation of violent partisans of the north against the court because it gave no sanction to their vindictive and proscriptive measures. the bill was passed, under a suspension of the rules, by a vote of to .[ ] the reconstruction acts, so-called--that is, "an act to provide for the more efficient government of the rebel states," of march d, , and an act of the d of the same month, supplementary to the former--were at once attacked, as may well be supposed, as invalid, unconstitutional, and arbitrary measures of the government; and various steps were taken at an early day to bring them to the test of judicial examination and arrest their enforcement. those acts divided the late insurgent states, except tennessee, into five military districts, and placed them under military control to be exercised until constitutions, containing various provisions stated, were adopted and approved by congress, and the states declared to be entitled to representation in that body. in the month of april following the state of georgia filed a bill in the supreme court, invoking the exercise of its original jurisdiction, against stanton, secretary of war, grant, general of the army, and pope, major-general, assigned to the command of the third military district, consisting of the states of georgia, florida, and alabama; to restrain those officers from carrying into effect the provisions of those acts. the bill set forth the existence of the state of georgia as one of the states of the union; the civil war in which she, with other states forming the confederate states, had been engaged with the government of the united states; the surrender of the confederate armies in , and her submission afterwards to the constitution and laws of the union; the withdrawal of the military government from georgia by the president as commander-in-chief of the army of the united states; the re-organization of the civil government of the state under his direction and with his sanction; and that the government thus re-organized was in the full possession and enjoyment of all the rights and privileges, executive, legislative, and judicial, belonging to a state in the union under the constitution, with the exception of a representation in the senate and house of representatives. the bill alleged that the acts were designed to overthrow and annul the existing government of the state, and to erect another and a different government in its place, unauthorized by the constitution and in defiance of its guarantees; that the defendants, acting under orders of the president, were about to set in motion a portion of the army to take military possession of the state, subvert her government, and subject her people to military rule. the presentation of this bill and the argument on the motion of the attorney-general to dismiss it produced a good deal of hostile comment against the judges, which did not end when the motion was granted. it was held that the bill called for judgment upon a political question, which the court had no jurisdiction to entertain.[ ] soon afterwards the validity of the reconstruction acts was again presented in the celebrated mcardle case, and in such a form that the decision of the question could not well be avoided. in november, , mcardle had been arrested and held in custody by a military commission organized in mississippi under the reconstruction acts, for trial upon charges of ( ) disturbance of the public peace; ( ) inciting to insurrection, disorder, and violence; ( ) libel; and ( ) impeding reconstruction. he thereupon applied to the circuit court of the united states for the district of mississippi for a writ of habeas corpus, in order that he might be discharged from his alleged illegal imprisonment. the writ was accordingly issued, but on the return of the officer showing the authority under which the petitioner was held, he was ordered to be remanded. from that judgment he appealed to the supreme court. of course, if the reconstruction acts were invalid, the petitioner could not be held, and he was entitled to his discharge. the case excited great interest throughout the country. judge sharkey and robert j. walker, of mississippi, david dudley field and charles o'connor, of new york, and jeremiah s. black, of pennsylvania, appeared for the appellant; and matthew h. carpenter, of wisconsin, lyman trumbull, of illinois, and henry stanbery, the attorney-general, appeared for the other side. the hearing of it occupied four days, and seldom has it been my fortune during my judicial life, now ( ) of nearly twenty years, to listen to arguments equal in learning, ability, and eloquence. the whole subject was exhausted. as the arguments were widely published in the public journals, and read throughout the country, they produced a profound effect. the impression was general that the reconstruction acts could not be sustained; that they were revolutionary and destructive of a republican form of government in the states, which the constitution required the federal government to guarantee. i speak now merely of the general impression. i say nothing of the fact, as the court never expressed its opinion in judgment. the argument was had on the d, d, th, and th of march, , and it ought to have been decided in regular course of proceedings when it was reached on the second subsequent consultation day, the st. the judges had all formed their conclusions, and no excuse was urged that more time was wanted for examination. in the meantime an act was quietly introduced into the house, and passed, repealing so much of the law of february th, , as authorized an appeal to the supreme court from the judgment of the circuit court on writs of _habeas corpus_, or the exercise of jurisdiction on appeals already taken. the president vetoed the bill, but congress passed it over his veto, and it became a law on the th of the month.[ ] whilst it was pending in congress the attention of the judges was called to it, and in consultation on the st they postponed the decision of the case until it should be disposed of. it was then that mr. justice grier wrote the following protest, which he afterwards read in court: in re } mcardle.} protest of mr. justice geier. this case was fully argued in the beginning of this month. it is a case that involves the liberty and rights not only of the appellant, but of millions of our fellow-citizens. the country and the parties had a right to expect that it would receive the immediate and solemn attention of this court. by the postponement of the case we shall subject ourselves, whether justly or unjustly, to the imputation that we have evaded the performance of a duty imposed on us by the constitution, and waited for legislation to interpose to supersede our action and relieve us from our responsibility. i am not willing to be a partaker either of the eulogy or opprobrium that may follow; and can only say: "pudet haec opprobria nobis, et dici potuisse; et non potuisse repelli."[ ] r.c. grier. i am of the same opinion with my brother grier, and unite in his protest. field, j. after the passage of the repealing act, the case was continued; and at the ensuing term the appeal was dismissed for want of jurisdiction.--( wall., .) the record had been filed early in the term, and, as the case involved the liberty of the citizen, it was advanced on the calendar on motion of the appellant. from that time until its final disposition the judges were subjected to close observation, and most of them to unfriendly comment. their every action and word were watched and canvassed as though national interests depended upon them. i was myself the subject of a most extraordinary exhibition of feeling on the part of members of the lower house of congress, the immediate cause of which was a circumstance calculated to provoke merriment. towards the close of january, , i was invited to a dinner given by mr. samuel ward to the secretary of the treasury, mr. mccullough. it was understood that the dinner was to be one of unusual excellence, and that gentlemen of distinction in congress would be present. as some of the invited guests desired to go to new york on the same evening, the hour was fixed at five. a distinguished party assembled at that time at the rooms of welcker, a noted restaurateur in washington. our host, mr. ward, was a character deserving of special notice. he had been a member of the noted firm of bankers, prime, ward & king, of new york; and afterwards represented our government in brazil. he was an accomplished linguist, familiar with several languages, ancient and modern. he was a profound mathematician, and had read, without the assistance of bowditch's translation, laplace's celebrated work, the "mécanique céleste." he passed most of his time during the sessions of congress in washington, looking after the interests of bankers and others in new york, as they might be affected by pending legislation. though called "king of the lobby," he had little of the character of the lobbyist. he was a gentleman in manners and education, and as such he always drew the company of gentlemen to his entertainments. on the occasion mentioned, some of the brightest spirits of congress were present. as we took our seats at the table i noticed on the menu a choice collection of wines, johannisberg among others. the dinner was sumptuous and admirably served. our host saw that the appropriate wine accompanied the successive courses. as the dinner progressed, and the wine circulated, the wit of the guests sparkled. story and anecdote, laughter and mirth abounded, and each guest seemed joyous and happy. at about eight song had been added to other manifestations of pleasure. i then concluded that i had better retire. so i said to my host, that if he would excuse me, i would seek the open air; and i left. just at this moment mr. rodman m. price, formerly governor of new jersey, made his appearance and exclaimed, "how is this? i was invited to dinner at eight"--producing his card of invitation. "look again," said ward, "and you will see that your eight is a five," and so it was, "but never mind," said ward; "the dinner is not over. judge field has just left. take his seat." and so price took my place. he had been travelling in the southern states, and had been an observer of the proceedings of various state conventions then in session to frame constitutions under the reconstruction acts, which he termed "congo conventions." to the amusement of the party he gave an account of some curious scenes he had witnessed in these conventions; and wound up one or two of his stories by expressing his opinion that the whole reconstruction measures would soon be "smashed up" and sent to "kingdom come" by the supreme court. the loud mirth and the singing attracted the attention of news-hunters for the press--item gatherers in the rooms below. unfortunately one of these gentlemen looked into the banquet-hall just as price had predicted the fate of the reconstruction measures at the hands of the supreme court. he instantly smelt news, and enquired of one of the waiters the name of the gentleman who had thus proclaimed the action of the court. the waiter quietly approached the seat of the governor, and, whilst he was looking in another direction, abstracted the card near his plate which bore my name. here was, indeed, a grand item for a sensational paragraph. straight way the newsgatherer communicated it to a newspaper in washington, and it appeared under an editorial notice. it was also telegraphed to a paper in baltimore. but it was too good to be lost in the columns of a newspaper. mr. scofield, a member of congress from pennsylvania, on the th of january, , asked and obtained unanimous consent of the house to present the following preamble and resolution: "whereas it is editorially stated in the _evening express_, a newspaper published in this city, on the afternoon of wednesday, january , as follows: 'at a private gathering of gentlemen of both political parties, one of the justices of the supreme court spoke very freely concerning the reconstruction measures of congress, and declared in the most positive terms that all those laws were unconstitutional, and that the court would be sure to pronounce them so. some of his friends near him suggested that it was quite indiscreet to speak so positively; when he at once repeated his views in a more emphatic manner; 'and whereas several cases under said reconstruction measures are now pending in the supreme court: therefore, be it-- "_resolved_, that the committee on the judiciary be directed to enquire into the truth of the declarations therein contained, and report whether the facts as ascertained constitute such a misdemeanor in office as to require this house to present to the senate articles of impeachment against said justice of the supreme court; and that the committee have power to send for persons and papers, and have leave to report at any time." an excited debate at once sprung up in the house, and in the course of it i was stated to be the offending justice referred to. thereupon the members for california vouched for my loyalty during the war. other members wished to know whether an anonymous article in a newspaper was to be considered sufficient evidence to authorize a committee of the house to enquire into the private conversation of members of the supreme court. the mover of the resolution, mr. scofield, declared that he knew nothing of the truth of the statement in the paper, but deemed it sufficient authority for his action, and moved the previous question on the resolution. several of the members protested against the resolution, declaring that it was unworthy of the house to direct an investigation into the conduct of a judicial officer upon a mere newspaper statement. but it was of no use. the resolution was adopted by a vote of to -- not voting. some members, indeed, voted for its passage, stating that it was due to myself that i should be vindicated from the charge implied in the debate; the force of which reason i have never been able to appreciate. the resolution was evidently intended to intimidate me, and to act as a warning to all the judges as to what they might expect if they presumed to question the wisdom or validity of the reconstruction measures of congress. what little effect it had on me my subsequent course in the mcardle case probably showed to the house. i had only one feeling for the movement--that of profound contempt; and i believe that a similar feeling was entertained by every right-thinking person having any knowledge of the proceeding. the facts of the case soon became generally known, and created a good deal of merriment in washington. but all through the country the wildest stories were circulated. communications of a sensational character relating to the matter were published in the leading journals. here is one which appeared in the new york _evening post_ from its correspondent: "it is the intention of the committee to examine the matter thoroughly, and in view of this a large number of witnesses have been summoned to appear on friday. "the friends of justice field are endeavoring to hush the matter up, and, if possible, to avert an investigation; but in this they will be disappointed, for the members of the judiciary committee express themselves firmly determined to sift the case, and will not hesitate to report articles of impeachment against justice field if the statements are proved." other papers called for the strictest scrutiny and the presentation of articles of impeachment, representing that i was terribly frightened by the threatened exposure. so for some months i was amused reading about my supposed terrible excitement in anticipation of a threatened removal from office. but, as soon as the author of the objectionable observations was ascertained, the ridiculous nature of the subsequent proceedings became manifest. the chairman of the judiciary committee, mr. wilson, of iowa, occupied a seat next to me at mr. ward's dinner, and knew, of course, that, so far as i was concerned, the whole story was without foundation. and so he said to his associates on the judiciary comnfittee. near the close of the session--on june th, --the committee were discharged from the further consideration of the resolution, and it was laid on the table--a proceeding which was equivalent to its indefinite postponement. the amusing mistake which gave rise to this episode in the lower house of congress would be unworthy of the notice i have taken of it, except that it illustrates the virulent and vindictive spirit which occasionally burst forth for some time after the close of the war, and which, it is to be greatly regretted, is not yet wholly extinguished. [ ] congressional globe, th congress, d session, part i., pp. - . when the bill reached the senate it was referred to the judiciary committee, and by them to a sub-committee of which mr. stewart, senator from nevada, was chairman. he retained it until late in the session, and upon his advice, the committee then recommended its indefinite postponement. the bill was thus disposed of. [ ] th wallace, . [ ] stats. at large, . [ ] "it fills us with shame that these reproaches can be uttered, and cannot be repelled." the words are found in ovid's metamorphoses, book i., lines - . in some editions the last word is printed _refelli_. the moulin vexation. soon after my appointment to the bench of the u.s. supreme court, i had a somewhat remarkable experience with a frenchman by the name of alfred moulin. it seems that this man, sometime in the year had shipped several sacks of onions and potatoes on one of the mail steamers, from san francisco to panama. during the voyage the ship's store of fresh provisions ran out, and the captain appropriated the vegetables, and out of this appropriation originated a long and bitter prosecution, or rather persecution, on the part of moulin, who proved to be not only one of the most malignant, but one of the most persevering and energetic men i have ever known. upon the return of the steamer from panama to san francisco, moulin presented himself at the steamship company's office, and complained, as he properly might, of the appropriation of his property, and demanded compensation. the company admitted his claim and expressed a willingness to make him full compensation; but when it came to an adjustment of it, moulin preferred one so extravagant that it could not be listened to. the property at the very most was not worth more than one or two hundred dollars, but moulin demanded thousands; and when this was refused, he threatened messrs. forbes and babcock, the agents of the company, with personal violence. these threats he repeated from time to time for two or three years, until at length becoming annoyed and alarmed by his fierce manner, they applied to the police court and had him bound over to keep the peace. notwithstanding he was thus put upon his good behavior, moulin kept continually making his appearance and reiterating his demands at the steamship company's office. forbes and babcock repeatedly told him to go to a lawyer and commence suit for his claim; but moulin refused to do so, saying that he could attend to his own business as well as, and he thought better than, any lawyer. at length, to get rid of further annoyance, they told him he had better go to new york and see mr. aspinwall, the owner of the vessel, about the matter; and, to enable him to do so, gave him a free ticket over the entire route from san francisco to that city. upon arriving in new york, moulin presented himself to mr. aspinwall and asked that his claim should be allowed. mr. aspinwall said that he knew nothing about his claim and that he did not want to be bothered with it. moulin still insisted, and mr. aspinwall told him to go away. moulin thereupon became excited, said he was determined to be paid, and that he would not be put off. he thereupon commenced a regular system of annoyance. when mr. aspinwall started to go home from his office, moulin walked by his side along the street. when aspinwall got into an omnibus, moulin got in also; when aspinwall got out, moulin got out too. on the following morning, when aspinwall left his residence to go to his office, moulin was on hand, and taking his place, marched along by his side as before. if aspinwall hailed an omnibus and got in, moulin got in at the same time. if aspinwall got out and hailed a private carriage, moulin got out and hailed another carriage, and ordered the driver to keep close to mr. aspinwall's carriage. in fact, wherever aspinwall went moulin went also, and it seemed as if nothing could tire him out or deter him from his purpose. at length mr. aspinwall, who had become nervous from the man's actions, exclaimed, "my god, this man is crazy; he will kill me;" and calling him into the office, asked him what he wanted in thus following and persecuting him. moulin answered that he wanted pay for his onions and potatoes. aspinwall replied, "but i don't know anything about your onions and potatoes; how should i? go back to my agents in california, and they will do what is right. i will direct them to do so." "but," said moulin, "i have no ticket to go to california;" and thereupon aspinwall gave him a free ticket back to san francisco. moulin departed, and in due course of time again presented himself to forbes and babcock, in san francisco. at the re-appearance of the man, they were more annoyed than ever; but finally managed to induce him to commence a suit in the united states district court. when the case was called, by an understanding between his lawyer and the lawyer of the steamship company, judgment was allowed to be entered in moulin's favor for four hundred and three dollars and a half, besides costs. the amount thus awarded greatly exceeded the actual value of the onions and potatoes appropriated. it was thought by the defendant that on the payment of so large a sum, the whole matter would be ended. but moulin was very far from being satisfied. he insisted that the judgment ought to have been for three thousand and nine hundred dollars, besides interest, swelling the amount to over six thousand dollars, and applied to judge hoffman of the district court to set it aside. but as the judgment had been rendered for the full value of the property taken, as admitted by his lawyer, the judge declined to interfere. this was in . in i received my appointment as judge of the supreme court of the united states, and was assigned to the circuit embracing the district of california. moulin then appealed to the circuit court from the judgment in his favor, and at the first term i held, a motion was made to dismiss the appeal. i decided that the appeal was taken too late, and dismissed it. moulin immediately went to mr. gorham, the clerk of the court, for a copy of the papers, insisting that there was something wrong in the decision. gorham asked him what he meant, and he replied that i had no right to send him out of court, and that there was something wrong in the matter, but he could not tell exactly what it was. at this insinuation, gorham told him to leave the office, and in such a tone, that he thought proper to go at once and not stand upon the order of his going. the following year, after mr. delos lake had been appointed united states district attorney, moulin went to his office to complain of gorham and myself; but lake, after listening to his story, told him to go away. two or three years afterwards he again presented himself to lake and demanded that judge hoffman, gorham, and myself should be prosecuted. lake drove him a second time from his office; and thereupon he went before the united states grand jury and complained of all four of us. as the grand jury, after listening to his story for a while, dismissed him in disgust, be presented himself before their successors at a subsequent term and complained of them. from the federal court he proceeded to the state tribunals; and first of all he went to the county court of san francisco with a large bundle of papers and detailed his grievances against the united states judges, clerks, district attorney and grand jury. judge stanley, who was then county judge, after listening to moulin's story, told the bailiff to take possession of the papers, and when he had done so, directed him to put them into the stove, where they were soon burned to ashes. moulin then complained of stanley. at the same time, one of the city newspapers, the "evening bulletin," made some comments upon his ridiculous and absurd proceedings, and moulin at once sued the editors. he also brought suit against the district judge, district attorney and his assistant, myself, the clerk of the court, the counsel against him in the suit with the steamship company and its agents, and numerous other parties who had been connected with his various legal movements. and whenever the united states grand jury met, he besieged it with narratives of his imaginary grievances; and, when they declined to listen to him, he complained of them. the courts soon became flooded with his voluminous and accumulated complaints against judges, clerks, attorneys, jurors, editors, and, in fact, everybody who had any connection with him, however remote, who refused to listen to them and accede to his demands. by this course moulin attracted a good deal of attention, and an inquiry was suggested and made as to whether he was _compos mentis_. the parties who made the inquiry reported that he was not insane, but was actuated by a fiendish malignity, a love of notoriety and the expectation of extorting money by blackmail. for years--indeed until september, --he continued to besiege and annoy the grand juries of the united states courts with his imaginary grievances, until he became an intolerable nuisance. his exemption from punishment had emboldened him to apply to the officers of the court--the judges, clerks, and jurors--the most offensive and insulting language. papers filled with his billingsgate were scattered all through the rooms of the court, on the desks of the judges, and on the seats of jurors and spectators. it seemed impossible, under existing law, to punish him, for his case did not seem to fall within the class of contempts for which it provided. but in september of his insolence carried him beyond the limits of impunity. in that month he came to the united states circuit court, where judge sawyer (then united states circuit judge) and myself were sitting, and asked that the grand jury which was about to be discharged might be detained; as he proposed to have us indicted for corruption, and commenced reading a long string of vituperative and incoherent charges of criminal conduct. the proceeding was so outrageous that we could not overlook it. we accordingly adjudged him guilty of contempt, fined him five hundred dollars, and ordered him to be committed to prison until the fine should be paid. whilst in prison, and not long after his commitment, he was informed that upon making a proper apology for his conduct, he would he discharged. instead, however, of submitting to this course, he commenced writing abusive articles to the newspapers, and sending petitions to the legislature charging us with arbitrary and criminal conduct. his articles were of such a character as to create quite erroneous impressions of our action. the newspapers, not waiting to ascertain the facts, at first took sides with him and assailed us. these attacks, of course, had no effect upon the man's case; but, after he had remained in prison for several weeks, on understanding that his health was infirm, and being satisfied that he had been sufficiently punished, we ordered his discharge. the hastings malignity. whilst the moulin matter was in progress, an individual by the name of william hastings was practising before the united states courts. he had been, as i am told, a sailor, and was then what is known as a "sailor's lawyer." he was a typical specimen of that species of the profession called, in police court parlance, "shysters." he was always commencing suits for sailors who had wrongs to redress, and particularly for steerage passengers who complained that they had not had sufficient accommodations and proper fare. he generally took their cases on speculation, and succeeded very often in forcing large sums from vessels libelled, as he was generally careful to bring his actions so as to arrest the vessels on the eve of their departure, when the payment of a few hundred dollars was a much cheaper mode of proceeding for the captains than detention even for a few days. but in one of his suits in the united states district court, in the year , brought for a steerage passenger against a vessel from australia, the captain declined to be blackmailed and defended himself. when the matter came on for hearing, hastings was found to have no cause of action, and the case was thereupon dismissed by judge hoffman. hastings then appealed to the united states circuit court, and that court affirmed the judgment of the district court. this happened as i was about leaving for europe; and i left supposing that i had heard the last of the case. during my absence, hastings moved judge hoffman, of the united states district court, from whose decision the appeal had been taken, to vacate the decision of the united states circuit court. this, of course, judge hoffman refused. hastings thereupon made a motion that my decision should be set aside, on the ground that it was rendered by fraud and corruption. when judge hoffman became aware of the charges thus made, he was indignant and immediately cited hastings before him to show cause why he should not be disbarred and punished for contempt. hastings refused to make any explanation or withdraw his offensive language; and thereupon judge hoffman expelled him from the bar and ordered his name to be stricken from the roll of attorneys. i was then absent in europe, and knew nothing whatever of the proceedings. about this time mr. george w. julian, a member of congress from indiana, came to california and pretended to be a great friend of the settlers. he obtained the confidence of that large class of the community, and especially of those who were known as the suscol claimants. these were the men who, upon the rejection by the united states supreme court of the so-called suscol grant, in napa and solano counties, rushed in and squatted upon the most valuable land in the state. the title to this land had previously been considered as good as any in california; it had been held valid by the local tribunals, and also by the board of land commissioners and by the district court of the united states. on the strength of these confirmations the land had been divided into farms, upon which, besides cultivated fields, there were numerous orchards, vineyards, gardens, and two cities, each of which had been the capital of the state. the farms and city lots had been sold, in good faith, to purchasers at full value. but when the question came before the united states supreme court, and it appeared that the grant had been made to general vallejo, in consideration of military services, and for moneys advanced to the mexican government, and not for colonization purposes, it was held that there was no authority under the mexican laws for such a disposition of the public domain, and that the grant was, therefore, invalid. at the same time judge grier filed a dissenting opinion, in which he expressed a hope that congress would not allow those who had purchased in good faith from vallejo, and expended their money in improving the land, to be deprived of it. congress at once acted upon the suggestion thus made and passed an act allowing the grantees of vallejo to purchase the lands occupied by them at a specified sum per acre. mr. john b. frisbie, vallejo's son-in-law, who had bought and sold large quantities, took immediate steps to secure himself and his grantees by purchasing the lands and obtaining patents for them. in the meanwhile the squatters had located themselves all over the property; most of them placing small shanties on the land in the night-time, near the houses, gardens, and vineyards, and on cultivated fields of the vallejo grantees. they then filed claims in the land office as pre-emptioners, under the general land laws of the united states, and insisted that, as their settlements were previous to the act of congress, their rights to the land were secure. in this view julian, when he came to california, encouraged them, and, as was generally reported and believed, in consideration of a portion of the land to be given to him in case of success, undertook to defend their possessions.[ ] when frisbie applied, under the provisions of the act of congress, for a patent to the land, a man named whitney, one of the squatters, protested against its issue, on the ground that under the pre-emption laws he, whitney, having settled upon the land, had acquired a vested right, of which congress could not deprive him. but the land department took a different view of the matter and issued the patent to frisbie. whitney thereupon commenced a suit against frisbie in the supreme court of the district of columbia to have him declared a trustee of the land thus patented, and to compel him, as such trustee, to execute a conveyance to the complainant. the supreme court of the district of columbia decided the case in favor of whitney, and ordered frisbie to execute a conveyance; but on appeal to the supreme court the decision was reversed; and it was held that a pre-emptioner did not acquire any vested right as against the united states by making his settlement, nor until he had complied with all the requirements of the law, including the payment of the purchase-money; and that until then congress could reserve the land from settlement, appropriate it to the uses of the government, or make any other disposition thereof which it pleased. the court, therefore, adjudged that the suscol act was valid, that the purchasers from vallejo had the first right of entry, and that frisbie was accordingly the owner of the land purchased by him. soon after the decision was rendered julian rose in his seat in the house of representatives and denounced it as a second dred scott decision, and applied to the members of the court remarks that were anything but complimentary. it so happened that previous to this decision a similar suit had been decided in favor of frisbie by the supreme court of california, in which a very able and elaborate opinion was rendered by the chief justice. i did not see the opinion until long after it was delivered, and had nothing whatever to do with it; but in some way or other, utterly inexplicable to me, it was rumored that i had been consulted by the chief justice with respect to that case, and that the decision had been made through my instrumentality. with this absurd rumor hastings, after he had been disbarred by judge hoffman, went on to washington. there he joined julian; and after concocting a long series of charges against judge hoffman and myself, he placed them in julian's hands, who took charge of them with alacrity. the two worthies were now to have their vengeance--hastings for his supposed personal grievances and julian for the suscol decision which injured his pocket. these charges on being signed by hastings were presented to congress by julian; and at his request they were referred to the judiciary committee. that committee investigated them, considered the whole affair a farce, and paid no further attention to it. but the next year mr. holman, of indiana, who succeeded julian, the latter having failed of a re-election, re-introduced hastings' memorial at julian's request and had it referred to the judiciary committee, with express instructions to report upon it. hastings appeared for the second time before that committee and presented a long array of denunciatory statements, in which judge hoffman, myself, and others were charged with all sorts of misdemeanors. the committee permitted him to go to any length he pleased, untrammelled by any rules of evidence; and he availed himself of the license to the fullest extent. there was hardly an angry word that had been spoken by a disappointed or malicious litigant against whom we had ever decided, that hastings did not rake up and reproduce; and there was hardly an epithet or a term of villification which he did not in some manner or other manage to lug into his wholesale charges. as a specimen of his incoherent and wild ravings, he charged that "the affairs of the federal courts for the district of california were managed principally in the interests of foreign capitalists and their co-conspirators, and that the judges thereof appeared to be under the control of said foreign capitalists, and that the said courts and the process thereof were being used or abused to deprive the government of the united states and the citizens thereof of the property that legally and equitably belonged to them respectively, and to transfer the same, in violation of law and through a perversion of public justice, to said foreign capitalists and their confederates and co-conspirators, and that nearly the whole of the sovereign powers of the state were under the control and management of said foreign capitalists and their confederates and co-conspirators;" and he alleged that he "was aware of the existence in the united states of a well-organized, oath-bound band of confederated public officials who are in league with the subjects of foreign powers, and who conspire against the peace, prosperity, and best interests of the united states, and who prey upon and plunder the government of the united states and the city and county governments thereof, and also upon private citizens, and who now are carrying into practice gigantic schemes of plunder through fraud, usurpation, and other villainy, in order to enrich themselves, bankrupt the nation, and destroy our government, and that their power is so great that they can and do obstruct the administration of public justice, corrupt its fountains, and paralyze to some extent the sovereign powers of the government of the united states and the people thereof." the judiciary committee after having patiently listened to this rigmarole, absurd and ludicrous as it was, unanimously reported that hastings' memorial should be laid upon the table and the committee discharged from any further consideration of the subject. the house adopted the report, and, so far as congress was concerned, there the matter dropped. but in the meanwhile it had been telegraphed all over the country that articles of impeachment were pending against the judges, and sensational newspaper articles appeared in different parts of the country. some expressed regret that the conduct of the judges had been of a character to necessitate such proceedings. others said it was not to be wondered at that the judicial ermine should be soiled in a country of such loose morals as california. still others thought it no more than proper to impeach a few of the judges, in order to teach the remainder of them a salutary lesson. these articles were paraded in large type and with the most sensational headings. when the action of the house on the memorial was announced, hastings and julian became furious. it then appeared that the only charge which had made any impression upon the minds of the committee was that relating to moulin, the frenchman. three, indeed, of the members, (messrs. voorhees, of indiana, potter, of new york, and peters, of maine,) said it was a shame and disgrace that such ridiculous and monstrous twaddle should be listened to for a moment; but a majority considered it their duty, under the order of reference, to hear the matter patiently. they had, therefore, allowed hastings the widest latitude and listened to everything that his malice could invent. as a comical conclusion to these extraordinary proceedings, hastings commenced a suit in the u.s. circuit court for the state of new york against the judiciary committee for dismissing his memorial. being a non-resident he was required by that court to give security for costs, and as that was not given the action was dismissed. this result was so distasteful to him that he presented a petition to the chief justice of the u.s. supreme court, stating that judge hunt had too much to do with churches, banks, and rings, and asking that some other judge might be appointed to hold the court. the petition was regarded as unique in its character, and caused a great deal of merriment. but the chief justice sent it back, with an answer that he had no jurisdiction of the matter. after this hastings took up his residence in new york, and at different times worried the judges there by suits against them--judge blatchford, among others--generally charging in his peculiar way a conspiracy between them and others to injure him and the rest of mankind. * * * * * the above was written upon my dictation in the summer of . in november of that year hastings again appeared at washington and applied to a senator to move his admission to the supreme court. the senator inquired if he was acquainted with any of the judges, and was informed in reply of that gentleman's proceedings against myself; whereupon the senator declined to make the motion. hastings then presented to the house of representatives a petition to be relieved from his allegiance as a citizen of the united states. as illustrative of the demented character of the man's brain, some portions of the petition are given. after setting forth his admission to the supreme court of california as an attorney and counsellor-at-law, and his taking the oath then required, he proceeded to state that on the th of november, , he entered the chamber of the supreme court of the united states to apply for admission as an attorney and counsellor of that court; that he was introduced by a friend to a senator, with a request that the senator would move his admission; that the senator asked him if he knew a certain justice of the supreme court, and upon being informed that he did, and that his relations with said justice were not friendly, as he had endeavored to get him impeached, and that the damaging evidence he produced against such justice had been secreted and covered up by the judiciary committee of the house, whom he had accordingly sued, the petition continued as follows: "whereupon said senator replied, i have a cause to argue as counsel before this court this morning, and i would, therefore, prefer not to move your admission. said senator then and there arose and took his seat in front of the bench of said court; and your petitioner remained in said u.s. supreme court until one application for admission was made and granted on motion of one s.p. nash, of tweed-sweeney ring settlement fame [thereby demonstrating poetic injustice], and until the chief justice of the united states--shadow not shade of selden--called the first case on the docket for that day, and a moment or two after the argument of said cause commenced, your petitioner arose and left the court-room of said united states supreme court, (to which the genius of a marshall and a story has bid a long farewell,) and as your petitioner journeyed towards his hotel, your petitioner soliloquized thus: 'senator w---- is evidently afraid of justice ----, with whom i have had a difficulty, and he possesses neither the manly independence of a freeman, nor moral nor physical courage, and he is, therefore, an improper person (possibly infamous) for such a high and responsible position, and my rights as a citizen are not safe in the keeping of such a poltroon and conniving attorney, and he is probably disqualified to hold the high and responsible office of senator of the united states--that he improperly accepts fees from clients, possibly in part for the influence which his exalted position as senator gives him as counsel for parties having cases before the u.s. supreme court, and which practice is wholly inconsistent with the faithful, impartial performance of his sworn duty as such senator; and by thus accepting fees he has placed himself in a position where his personal interests conflict with the obligations of his oath of office; while the justices of the supreme court are, i conceive, derelict in the performance of their sworn duty, for permitting such practices to be inaugurated and continued.' "cowardice taints the character with moral turpitude; and i believe the facts related above show that said senator is a coward; at all events he lacks moral courage, and is afraid of the justices of the united states supreme court, whose judge the senator-attorney of the court becomes in case of trial of any of said justices by impeachment; surely this is one unclean body incestuously holding illicit commerce with another unclean body, and both become interchangeably soiled, and too impure to touch the spotless robes of the judicial ermine; still, as this government has ceased to be a government of law and justice, and has become a foul and unclean machine of corrupt compromises, carried on by colluding and conniving shyster bartering attorneys, the practice of said supreme court of the united states, above referred to, is strictly in accord therewith." the petition continued in a similar strain, and wound up by asking the passage of a concurrent resolution of the houses releasing him from his allegiance to the united states! [ ] see exhibit l, in appendix. appendix. exhibit a. [from the new york _evening post_ of november th, .] among the passengers leaving in the crescent city to-day is stephen j. field, esq., of this city, brother and late law-partner of d.d. field, esq., one of the commissioners of the code of practice. mr. field is on his way to san francisco, where he proposes to practise his profession, and take up his future residence. if he should realize either the hopes or the expectations of the numerous friends he leaves behind, he will achieve an early and desirable distinction in the promising land of his adoption. * * * * * exhibit b. mr. william h. parks, of marysville, has always asserted that my election as alcalde was owing to a wager for a dinner made by him with a friend. he was at the time engaged in transporting goods to the mines from the landing at nye's ranch on the yuba river, called yubaville, and arriving at the latter place whilst the election was going on he made the wager that i would be elected, and voted all his teamsters, numbering eleven, for me. as i had a majority of only nine, he claims that he had the honor of giving me my first office. the claim must be allowed, unless the person with whom he wagered offset this number, or at least some of the teamsters, by votes for my opponent. after the election mr. parks introduced himself to me, and from that time to this he has been a warm and steadfast friend. he afterwards settled in sutter county, but now resides in marysville. he has amassed a handsome fortune, and takes an interest in all public affairs. he has represented his county as a senator in the legislature of the state. he is a gentleman of high character and has the confidence and respect of the community. my opponent for the office of alcalde was mr. c.b. dodson, from illinois. i afterwards met him only once or twice in california, and knew little of his history. but when i was a member of the electoral commission, in february of this year ( ), a copy of a paper published in geneva, illinois--the _republican_, of the th of that month--was sent to me, containing the following account of him, from which it appears that he, too, has lived a life of strange vicissitudes and stirring adventure: reminiscences. an account of the various positions of the selected arbitrators says that in judge field was elected alcalde and recorder of marysville, california. judge field's competitor for the position was our townsman, capt. c.b. dodson, who was defeated by nine votes. as there is no doubt that had the captain gained the position of alcalde he would have risen as his competitor did, to various judicial positions, and finally to the arbitrator's seat, these nine votes must be considered as the only reasons why geneva does not number one of her citizens among the arbitrators for the highest of the world's official positions. among the votes polled for our friend dodson on that occasion was that of macaulay, one of the family of the famous historian of england's greatest days and proudest times. the captain has been a natural and inveterate pioneer, and few citizens of the state have figured more prominently or proudly in its early annals. in , forty-three years ago, mr. dodson came to dispute with the aboriginal pottawatomies the possession of the fox river valley. white faces were rare in those days, and scarcely a squatter's cabin rose among the indian lodges. the captain built the first saw-mill on the river, and he and col. lyon were the hardy spirits about whom the early settlers clustered for encouragement and advice. in he was employed by the government to superintend the removal of the indians to council bluffs and kansas, and their successful emigration, as well as their uniform good will toward the whites prior to their removal, were largely due to his sagacity and influence among them. when capt. sutter first found the yellow gold gleaming in the dirt of his mill-race, and all the world joined in a mad rush to the mines, the venturesome spirit of capt. dodson led him to press forward with the first, and he was a "forty-niner," that pride of the old californians. in that surging crowd of wild adventurers from the ends of the earth, the captain was, as he has been among the early pioneers of illinois, a directing and controlling spirit. though he failed in his judicial aspirations for alcalde, and judge field succeeded, yet his continued exertions and marked influence caused him to leave a name richly associated with all the early history of marysville and vicinity. when the war broke out, mr. dodson was among the very first to proffer his services, and he raised the first company of cavalry which went to the front from kane county. the captain is not an old man yet in health and vigor, although an "old settler" in varied and numerous experiences. his name is marked in unmistakable characters on every prominent event of the early settlement of northern illinois, and blended and associated with all the pioneer way-marks of california. a friend and companion of all the great illinoians of the generation which is now passing into old age, he has not yet ceased to be a spirit actively mingling in all the affairs of the present times. but we only started to tell of his contest with field, not to write an eulogium on the captain, for here where he is known it is better pronounced in his record, which lies in the memories of his friends. * * * * * exhibit c. _oath of office as alcalde._ state of california, } sacramento district. } _ss._ sacramento city, _january d, _. personally appeared before me stephen j. field, first alcalde of yubaville, in the district of sacramento, and made oath that he would discharge the duties of the office of first alcalde as aforesaid with faithfulness and fidelity to the best of his ability, and that he would support the constitution of the united states and the constitution of the state of california. r.a. wilson, _judge of st instance, sacramento district._ * * * * * exhibit d. the following are the orders of the district court mentioned in the narrative. _order imprisoning and fining mr. field for alleged contempt of court._ district court, } eighth judicial district, } county of yuba. } at a term of said district court held at marysville, county of yuba, on the th of june, , present, hon. wm. b. turner, judge, the following proceeding was had: _ordered_. that stephen j. field be imprisoned forty-eight hours and fined five hundred dollars for contempt of court. * * * * * _order expelling messrs. field, goodwin, and mulford from the bar._ district court, } eighth judicial district, } county of yuba. } at a term of said court held at marysville, on the th of june, , present, hon. william r. turner, judge, the following proceeding was had: whereas, messrs. field, goodwin, and mulford, having set at defiance the authority of this court, and having vilified the court and denounced its proceedings, the said field, goodwin, and mulford are hereby, by order of the court, expelled from the bar of the same. * * * * * _order imprisoning and fining judge haun for releasing mr. field from imprisonment upon a writ of habeas corpus, and directing that the order to imprison mr. field be enforced._ district court, } eighth judicial district, } county of yuba. } at a term of said district court held at marysville, county of yuba, on the th of june, , present, hon. wm. b. turner, judge, the following proceeding was had: whereas, judge haun having, in defiance of the authority of this court, and in violation of the law, obstructed and prevented the execution of an order of this court to imprison mr. field for a contempt offered to the court while in session, by releasing the said field from the custody of the sheriff; the said haun is hereby sentenced to forty-eight hours' imprisonment and to pay a fine of fifty dollars. the sheriff will enforce the order of the court to imprison mr. field for forty-eight hours. * * * * * exhibit e. _record of proceedings in the court of sessions, mentioned in the narrative._ court of sessions of yuba county. met at marysville, june th, a.d. , at o'clock a.m., and was duly opened by r.b. buchanan, sheriff of the county. present, hon. h.p. haun, county judge, f.w. barnard, associate justice. in the matter of } stephen j. field } application for habeas corpus. on the reading of the petition of the applicant, duly authenticated by his oath, it is ordered that the prayer of the petitioner be granted, and that r.b. buchanan, sheriff of yuba county, or any person acting under him and having said field in custody, bring the said field into court forthwith, to be dealt with according to law. in pursuance of the above order, the said field came into court, and proceeded to address the court on the matter touching the cause of his confinement, and while making his remarks, and previous to the close thereof, and while the court was in session, r.b. buchanan, sheriff of yuba county, at the head of fifty men, entered the court, and stated that he came there for the purpose and with the intent to seize h.p. haun, county judge as aforesaid, and place him in close confinement, under and by virtue of a certain order or decree made by one william r. turner, judge of the eighth judicial district of the state of california. the court informed the said sheriff buchanan that it was holding its regular term, and that order must be preserved while it was in session. the said sheriff buchanan then left the court, whereupon the business before the court was again resumed. at the expiration of some five minutes, the said r.b. buchanan, as aforesaid, re-entered the court, and stated that the said h.p. haun, county judge as aforesaid, must leave the court and go with him, as he was peremptorily ordered by william r. turner, the judge as aforesaid, to arrest the said h.p. haun and keep him in close confinement for the space of forty-eight hours. r.b. buchanan was here notified that he was violating the laws of the land, and that he would be fined if he persisted in disturbing the session of the court. the reply of said buchanan was "that he could not be trifled with," and immediately seized the said h.p. haun, county judge as aforesaid, by the arm, and attempted to drag him from the room where the court was in session. whereupon a fine of two hundred dollars was then and there imposed upon the said r.b. buchanan for a contempt of court. the said r.b. buchanan then and there called upon the fifty persons ordered out by him as his posse to take hold of the said h.p. haun, and take him from the court. but the persons in attendance, conceiving the order to arrest the hon. h.p. haun to be illegal and unjustifiable, refused to assist the sheriff in the execution of his illegal order. the sheriff then retired, and the court was then adjourned to o'clock p.m. court met pursuant to adjournment. court adjourned to to-morrow morning at o'clock. i hereby certify the above to be a true transcript of the record of the proceedings of the court of sessions on the th day of june, a.d. . witness e.d. wheeler, clerk of the court of sessions of yuba county, california, with the seal of the court affixed, this th day of december, a.d. . [l.s.] e.d. wheeler, _clerk_. * * * * * the records of the district court show the following entry made the same day, june , : "a communication was received from h.p. haun, stating 'that if he was guilty of obstructing the order of the court in releasing field, he did it ignorantly, not intending any contempt by so doing.' whereupon the court ordered that h.p. haun be released from confinement, and his fine be remitted." the following is taken from the deposition of mr. wheeler, the clerk of the court, before the committee of the assembly to whom was referred the petition of citizens of yuba county for the impeachment of judge turner: march th, . e.d. wheeler,[ ] being duly sworn, says: i reside in marysville, yuba county; i am the county clerk of that county; i know wm. r. turner, judge of the eighth judicial district; i am clerk of his court in and for yuba county. question. were you in court on the th day of june last, when stephen j. field was fined by judge turner and ordered to be imprisoned? if so, please to state what took place at that time in court. ans. i was in court on the th day of june last. a motion was made in a suit (cameron against sutter) in which stephen j. field was counsel for the defendant, upon which motion a discussion arose among the members of the bar employed in the case. during the remarks of mr. field, judge turner said that it was useless to say more, as the mind of the court was made up. i think mr. field then offered to read from the statutes, whereupon judge turner ordered him to take his seat, and that a fine of two hundred dollars be entered up against him, and that he be imprisoned eight hours or thereabout. mr. field replied, "very well." then judge turner said, fine him three hundred dollars and imprison him--i do not remember the precise time--but think it was twenty-four hours. mr. field made some quiet reply--i think it was "very well;" whereupon the fine was increased to four hundred dollars and the imprisonment made something longer. i think mr. field said something about his rights at the bar, and i think he appealed to the members of the bar. then judge turner became quite furious, and in loud and boisterous language ordered the fine to be five hundred dollars and the imprisonment to be forty-eight hours, and ordered the sheriff to take him out of court. he was boisterous, and several times ordered the sheriff to take him out; to summon a posse; to summon the court, and he would turn him out. q. did you see anything disrespectful in the manner, or hear anything disrespectful in the language of mr. field which occasioned the fine and imprisonment? ans. i did not. q. did mr. field, in consequence of the order of judge turner, leave the court-room in company with the deputy sheriff? ans. he left in company with the deputy sheriff, and i suppose it was in consequence of the order of judge turner. q. was the trial of cameron against sutter proceeded with after mr. field left? ans. it was. q. who took the place of mr. field after he left? ans. john v. berry, esq. q. were you in court on the th day of june? ans. i was. q. were any members of the bar expelled by judge turner on that day? and if so, please state who they were and whether they were in court at the time, and whether or not the order was made upon a hearing of the parties. ans. there were three persons expelled, to wit: s.j. field, s.b. mulford, and j.o. goodwin. i do not recollect whether the parties were all in court at the time. i am sure that mr. goodwin was in court. there was no hearing had to my knowledge. q. after the order imprisoning mr. field, on the th of june and before the th, were any steps taken by mr. field to be discharged on a writ of habeas corpus? ans. there were, and mr. field was discharged by the judge of the county of yuba. q. what was done by judge turner with judge haun, the county judge, in consequence of his discharging mr. field from imprisonment on the writ of habeas corpus? ans. judge haun was fined fifty dollars by judge turner and ordered to be imprisoned forty-eight hours. this was on the th of june, at the same time that the other gentlemen were expelled from the bar. q. did the court of sessions of yuba county hold a session on that day? ans. yes. q. did you continue in the district court or did you go to the court of sessions? ans. i continued in the district court. q. who made up the records of the court of sessions on that day? ans. f.w. barnard, one of the associate justices of the court. q. look at this paper and state whether it is a copy of the proceedings of that court on the th of june, certified by you as the clerk. ans. it is.[ ] q. whilst you were in the district court on that day did the sheriff of yuba county give any information to the district court about the court of sessions being in session? ans. he did. q. did judge turner give any directions to the sheriff to arrest judge haun, notwithstanding he was holding his court? ans. he did, and told the sheriff to put him in irons, if necessary to handcuff him. q. were any directions given about a posse? ans. there were. he told the sheriff to summon a posse forthwith and enforce the orders of the court. he addressed two or three professional gamblers present and asked them if they would not join the posse to arrest judge haun. then the excitement became so great that several of the members of the bar requested him to adjourn the court; but before the court adjourned the judge asked several of the members of the bar to join the posse; but they made excuses, whereupon the court adjourned. q. was the order entered on the records of the district court, expelling messrs. field, goodwin, and mulford? ans. it was. q. what day was that order entered? ans. on the th day of june. q. has that order ever been vacated on the records of the district court? ans. so far as it relates to mr. goodwin it has been vacated, but no further. q. has mr. field or mr. mulford ever been restored to the bar by the district court since the order of expulsion on the th of june? ans. no. [ ] mr. wheeler is at present ( ) district judge of the nineteenth district of the state. [ ] the record of the proceedings is printed above. * * * * * exhibit f. the following is the petition to the governor mentioned in the narrative. of course the governor possessed no power to suspend a judicial officer from office. but at the time the petition was signed and sent to him the state had not been admitted into the union, and congress had not approved of the action of the people in calling a convention and framing a constitution; and it appeared very doubtful whether such approval would be given. there was a general impression that in the meantime the governor could exercise the power to remove and suspend officers of the state which the former governors under mexico possessed, or were supposed to possess. the petition, however, is none the less significant, as the expression of the opinions of the people of marysville upon the conduct of judge turner. _to his excellency peter h. burnett, governor of california._ the undersigned citizens of marysville, yuba county, in this state, respectfully request that your excellency would suspend william r. turner, district judge of the eighth judicial district of this state, from his judicial office. st. because the said william r. turner is grossly incompetent to discharge the duties of a judge, he having exhibited during his judicial career, and particularly during the session of the district court held at marysville, in yuba county, during the present month, ignorance of the most elementary principles of law,--such as to excite the derision of counsel, jurors, witnesses, and persons in attendance upon the court. d. because the said william r. turner has, during the session of the district court held at marysville, exercised the power vested in him as judge, in an arbitrary and tyrannical manner, outraging the rights of counsel, clients, and witnesses. d. because the said william r. turner has refused to hear counsel on questions of vital importance to the suits of their clients, and in one instance fined and imprisoned counsel for stating in the most respectful manner and in the most respectful language, that he appealed from an order made by him, though such is an acknowledged right of all counsel, and a right given by statute--under pretence that counsel by so doing was guilty of a contempt. th. because the said wm. r. turner has trampled upon and spurned with contempt the privilege of the writ of habeas corpus which is guaranteed to all citizens by the constitution of the united states and by the constitution of the state of california, and fined and imprisoned the hon. henry p. haun, judge of yuba county, for the exercise by him of a judicial act in discharging a gentleman from arrest under a writ of habeas corpus. th. because the said william r. turner, to carry out his arbitrary order to fine and imprison the hon. henry p. haun, judge of yuba county, for the exercise of a judicial act, ordered the sheriff of said county with a posse to invade the court of sessions of yuba county while the said court was sitting, and over which the said haun presided, and to carry off by force the said county judge and put him in close custody. th. because the said william r. turner ordered the sheriff of yuba county, with a posse, to force mr. s.j. field from the court of sessions of said county whilst said field was before said court on a writ of habeas corpus arguing for his discharge, and the said william r. turner was informed that the court of sessions forbid the sheriff from disturbing the proceedings of the court on the hearing of said writ. th. because the said william r. turner has, in the exercise of arbitrary power, expelled counsel from the bar for giving their testimony as witnesses on the return of a writ of habeas corpus before the hon. henry p. haun, judge of the county court, under pretence that by so doing they were vilifying the court and denouncing its proceedings. th. because the said william r. turner, during the session of the district court at marysville, yuba county, in the present month, frequently went into court with revolving pistols upon his person, to the great scandal of the court and of the county. for the above, and other reasons, your petitioners respectfully request that the said william r. turner may be suspended from his office, as the further exercise by him of judicial power will destroy all confidence of the community in the administration of justice, and all respect for the tribunals of the country; and your petitioners will ever pray. marysville, june th, . stephen j. field, ira a. eaton, james s. green, t.b. parker, e.w. judkins, harrington osgood, chas. w. gleason, geo. w. hastat, s. sartwell, jr., m.s. ebright, s.c. stambaugh, p. steinman, henry cuttcher, m. cunningham, ed. b. jefferds, wm. h. mitchell, benj. barker, h. cecil & co., osbourn & co., asa stearns, john bennett, jr., j.p.f. haskell, w.a. crampton, j.c. jewett, h. stenhome, john parks, absalom parks, david parks, james imbrie, alfred parry, h.c. ward, richard mcrae, wm. johnson, f. prunean, h.w. taylor, r.a. eddy, s.t. brewster, c. sala, dericerpre, m. donaldson kinney, r.m. foltz., jas. f. hibbard, thomas gaffney, allen gries, w.h. swain, oben lacey, e.s. peck, b. smith, john graham, wm. kyle, s.c. tompkins, a.c. ladd, c.b. kinnard, cyrus crouch, h.h. welch, jas. stuart, jas. debell, uriah davis, l.h. babb & co., i.b. purdy, g. dimon, henry j. williams, d.w.c. rice, n. purdy, william k. coit, james b. cushing, thomas west, s.b. mulford, j. ford, wm. ford, charles a. van dorn, gustavus b. wright, j. burlingame, g. beaulamy, a. mace, f. frossard, c.w. durkee, john s. ryder, geo. h. childs, ezra f. nye, s.t. nye, geo. w. durkee, john c. marks, john l. carpenter, leonard crofford, robert lacy, french paige, l.a. allen, james hughes, j.c. sargent, wm. p. hoyt, f.l. reed, j.s. bell, henry b. compton, g.f. kussel, reuben scott, warren drury, joel f. whitney, o.c. gardner, b.f. taber, johnson thompson, jr., ganahl & co., t.w. hall, j. donnel, wm. irwin, wm. w. nelson, r.h. mccall, b.g. bixby, geo. l. boswell, wm. w. tinker, robert s. baker, n.f. cooke, edwards woodruff, j.n. briceland, joseph f. emeric, john f. delong, james q. packard, sibley & co., boone, larrow & co., p.w. hayes & co., geo. c. gorham, r. dunlap, m. cameron, r. brown, a.w. loynes, f. owradon, j.w. turner, p.d. bailey, james l. springer, matthew s. smith, wm. fulton, john george smith, isaiah porter, wm. r. taylor, john mcclellan, r.h. macy, charles b. mitchell, thomas r. anthony, geo. w. webster, daniel m. shepherd, m.j. eavyerberth, lewis a. gosey, john rueyer, tehan van de wett, wm. cassede, g.p. russell, s.g. haywood, g.w. hopkins, wm. e. wightman, e. ferris, samuel r. st. john, a.o. garrett, d.c. benham. * * * * * exhibit g. _letter of mr. eaton, by whom the message mentioned in the narrative was sent to judge turner._ wednesday afternoon, _aug. , ' _. dear judge: i have given your message to turner. he does not like it much and flared up considerably when i told him. but it was no use. i have made him understand that you do not want any personal difficulty with him, but that you are ready for him, and if he attacks you he will get badly hurt. i will see you soon and explain. give him ----. you can always count on me. yours truly, ira a. eaton. the narrative of reminiscences was sent to a friend in san francisco, soon after it was printed, and was shown to gen. a.m. winn of that city. he was in marysville in and also gave judge turner to understand the line of conduct i intended to pursue. the following letter has since been received from him. san francisco, _may th ' _. friend field: in looking over the early reminiscences of california i was pleased with the faithful recital of your trouble with judge turner at marysville in . being there about that time i recollect to have met with judge turner and found him in a fighting rage, making threats of what he would do on meeting you. although i have not an exalted opinion of men's courage, when they talk so much about it, i thought he might put his threats into execution and warned you of approaching danger. the course you pursued was generally approved, and public opinion culminated in your favor. you made many warm friends, though turner and his friends were the more enraged in consequence of that fact. with great respect, i am, as ever, your friend, a.m. winn. hon. stephen j. field, _washington, d.c._ * * * * * exhibit h, no. i.[ ] after the narrative of reminiscences was written, the proceedings of the assembly of california of , on the petition of citizens of yuba and nevada counties for the impeachment of judge turner, were published. annexed to them was a statement by the editor of the causes of the indefinite postponement of the matter. they are there stated to be: st, that it was supposed that i had acquiesced in such a disposition of the case, because by the act concerning the courts of justice and judicial officers, turner had been sent to the northern portion of the state, where he could do no harm; d, that the legislature did not wish to extend the session for the period which the trial of an impeachment would require; and, d, that the whole matter had become extremely distasteful to me. a copy of this statement with the record of the proceedings was sent to the surviving members of the seven, mentioned in the narrative, who voted for the indefinite postponement of the matter; and they wrote the replies which are given below as part of this exhibit. they are preceded by a letter from a member, written soon after the vote was taken. * * * * * _letter of mr. bennett._ house of assembly, san jose, _april d, _. hon. stephen j. field. dr. sir: i take pleasure in adopting this form to explain to you my vote upon the question put to the house in the final disposition of the case for the impeachment of judge turner. had the house been called for a direct vote upon the question of impeachment, i should certainly have voted for the impeachment; but finding that some of the members thought the wishes of the citizens of yuba county had been accomplished by the removal of judge turner from your district, and on that account would vote against the impeachment, i thought there was less injustice in postponing the whole matter indefinitely, than in coming to a direct vote. i will also say that it was understood by many members that you would be satisfied with such a disposition. i am very truly your friend, f.c. bennett. to the hon. stephen j. field, _san jose_. * * * * * _letter of mr. merritt._ salt lake city, utah, _may th, _. my dear judge: your letter of the th of april reached me day before yesterday, and the copy of the proceedings in the matter of the impeachment of w.r. turner, on yesterday. the editorial comments on the case, so far as i am concerned, are exactly correct. i remember distinctly having voted for the indefinite postponement of the charges against turner on the distinct understanding that you consented to it, or at least acquiesced, for the reasons: st, that turner, by the passage of the bill concerning courts of justice, etc., had been sent to a district where he could do no harm and was out of the way; d, that you did not desire to extend the session of the legislature; and, d, that the whole matter was extremely distasteful and disagreeable to you. i remember further very distinctly, even after this great lapse of time, that i was very much astonished when you told me that i had voted under a misapprehension as to your views and wishes. it is very certain that turner would have been impeached had not a false report, as to your views and wishes on the subject, been industriously circulated among the members of the assembly a short time before the vote was taken. that report alone saved turner from impeachment. very truly your friend, saml. a. merritt. hon. s.j. field, _sup. ct. u.s._ * * * * * _letter of mr. mccorkle._ washington, city, d.c., _may th, _. hon. s.j. field. my dear sir: i have received your note and the printed record of the "proceedings of the assembly of the state of california of , on the petition of the citizens of yuba and nevada counties for the impeachment of wm. r. turner, judge of the eighth judicial district of california." the simple reading of the record recalls vividly to my mind all of the circumstances of the case and enables me to answer your inquiry in regard to the indefinite postponement of the motion to impeach judge turner. a bill introduced by yourself, increasing and changing the numbers of the judicial districts of the state, had passed the legislature, and became a law some weeks before the motion to impeach judge turner was called up. by this law judge turner was banished to the klamath--a region inhabited almost exclusively by savage red-skins, the elk, and grizzly bear, and as turner was supposed by anthropologists to be a resultant of that mysterious law of generation denominated atavism or reversionary heredity, and bore the impression, in not only the bodily form, but the instincts, passions, manners, and habits of the "cave-dwellers" of the rough-stone age, there appeared to be a fitness and adaptation in the new locality and its surroundings to the man, which was at once appreciated and approved by all persons familiar with him, and his conduct and behavior, both on and off the bench. under these circumstances the report obtained general credence, that you and your constituents were satisfied with the removal of judge turner from the bench of the eighth judicial district; and i have no doubt influenced all or nearly all who voted to indefinitely postpone his impeachment. as for myself, having a personal knowledge of the truth of the charges made against judge turner by the citizens of yuba and nevada counties, i am free to say that no consideration other than that you and your constituents were satisfied with judge turner's removal from the eighth judicial district, could have induced me to cast my vote for the indefinite postponement of judge turner's impeachment. do you realize the fact, my dear judge, that more than a quarter of a century has elapsed since these events transpired? though my respect for you as a man, and my admiration for you as a jurist, have increased since we were actors in these scenes; yet i am frank enough to say to you, that if i had to play my part again, with my increased experience, i would not vote to indefinitely postpone the impeachment of a judge whom i knew to be guilty of the charges made against judge turner by yourself and others, _even though the report were true_ that you and your constituents were satisfied with his simple removal from your judicial district. respectfully and truly yours, &c., jos. w. mccorkle. * * * * * _letter of mr. bradford._ springfield, ill, _may th, _. judge field. my dear friend: yours of the th april should have been answered ere this, but before doing so i desired to get all the reminders that i could. i looked carefully over the journal. all that i had recollected in the whole matter was that i had an intense feeling in favor of sustaining your position, and when you informed me that i had voted to dismiss the proceedings i was profoundly astonished. i thought you must be mistaken until i saw the journal.... some very satisfactory assurance must have been given me that such vote would be satisfactory to you, and i only wonder that i did not have the assurance verified.... i assume that the editor is correct in the explanation as given. very truly, j.s. braford. * * * * * _letter of mr. carr._ san francisco, _may th, _. my dear judge: i have received your letter and a printed copy of the record of the proceedings of the assembly of california of , in the matter of the impeachment of william r. turner, judge of the then eighth judicial district of the state. in reply, i have to say, that the statement of the editor as to the vote on the motion to indefinitely postpone the proceedings is correct, so far as i am concerned. it was distinctly understood by me, and to my knowledge by other members of the assembly, that you had consented to such postponement, it being explained that the postponement was not to be taken as an approval of the judge's conduct. on no other ground could the motion have been carried. if the vote had been taken on the charges made, articles of impeachment against the judge would undoubtedly have been ordered. your consent to the postponement was understood to have been given, because of the change in the judicial districts by an act introduced into the assembly by yourself, under which judge turner was sent to a district in the northern part of the state, where there was at the time scarcely any legal business, and which was removed to a great distance from the district in which you resided, and because of the general desire manifested by others to bring the session of the legislature to a speedy close. the impeachment of the judge would have necessitated a great prolongation of the session. no member of the assembly justified or excused the atrocious and tyrannical conduct of the judge towards yourself and others. i am, very truly, yours, jesse d. carr. hon. stephen j. field. [ ] by mistake, there are two exhibits h; they are, therefore, marked no. i. and no. ii. * * * * * exhibit h, no. ii. _letter of judge gordon n. mott giving the particulars of the difficulty with judge barbour._ san francisco, _apr. th, _. hon. stephen j. field. dear sir: your letter of the eleventh instant, in which you requested me to give you, in writing, an account of the affair between yourself and judge w.t. barbour, at marysville in , was duly received. the facts in relation to that unpleasant affair are as fresh in my memory as if they had happened yesterday; and i give them to you the more willingly for the reason that you incurred the spite and malice of judge barbour, by acts of personal and professional kindness to me, which gave him no just or reasonable cause of offence; and though the following statement of facts will place the character of judge barbour, now deceased, in a very bad and even ludicrous light, the events in mind are nevertheless a part of the history of our early days in california, and i see no impropriety in complying with your request. the facts are as follows: you and i were walking together along d street in the city of marysville, when we met judge barbour, who, after using some offensive and insolent remarks, gave you a verbal challenge to meet him in the way resorted to by gentlemen for the settlement of their personal difficulties. you accepted the challenge instantly, and referred him to me, as your friend, who would act for you in settling the preliminaries of a hostile meeting. in half an hour i was called upon by hon. chas. s. fairfax as the friend of judge barbour. he said judge barbour had told him that judge field had challenged him to mortal combat, and requested him to meet me for the purpose of arranging the terms of the meeting between them. i told mr. fairfax at once that such was not my understanding of the matter; that i was present when the challenge was given by judge barbour and accepted by judge field. after further consultation with you we agreed that it was better for you to accept the false position in which judge barbour seemed determined to place you, and "to fight it out on that line," than longer submit to the insolence and persecution of a bitter and unscrupulous adversary. mr. fairfax then claimed, in behalf of judge barbour, that, as he was the party challenged, he had the right to the choice of weapons, and the time, place, and manner of the combat; to which i assented. he then stated that judge barbour proposed that the meeting should take place that evening in a room twenty feet square; that each party was to be armed with a colt's navy revolver and a _bowie-knife_; that they should be stationed at opposite sides of the room, and should fire at the word, and advance at pleasure, and finish the conflict with the knives. i told mr. fairfax that the terms proposed by his principal were unusual and inconsistent with the "code," and that i could not consent to them or countenance a conflict so unprecedented and barbarous. mr. fairfax agreed with me that judge barbour had no right to insist upon the terms proposed, and said that he would consult with him and get him to modify his proposition. upon doing so he soon returned, and stated that judge barbour insisted upon the terms he had proposed as his ultimatum, and requested me to go with him and call on judge barbour, which i did. i had now come to the conclusion that barbour was playing the role of the bravo and bully, and that he did not intend to fight, and resolved on the course that i would pursue with him. mr. fairfax and myself then called on judge barbour, and i repeated what i had said to mr. fairfax, adding that it would be shameful for two gentlemen, occupying such positions as they in society, to fall upon each other with knives like butchers or savages, and requesting him to dispense with the knives, which he still refused to do. i then looked him straight in the eye and said, well, sir, if you insist upon those terms, we shall accept. i saw his countenance change instantly. "his coward lips did from their color fly;" and he finally stammered out that he would "waive the knife." without consulting you, i had determined that if barbour still insisted upon a conflict with bowie-knives i would take your place, believing that he would not have any advantage over me in any fight he could make; and knowing, moreover, that you had involved yourself in the difficulty on my account, i thought it only just for me to do so. but it was demonstrated in the sequel that barbour was playing the game of bluff, and that he did not intend to fight from the start. it was finally settled, however, that the combat should take place as first proposed, except that pistols only were to be used. mr. fairfax and myself then commenced looking about for a room; but in the meantime the affair had been noised about town and we found it impossible to get one. mr. fairfax then, after consulting judge barbour, proposed that the meeting should take place the next morning in sutter county; to which i assented; and all the terms and preliminaries were arranged and agreed upon. at that time there were two daily lines of stages leaving marysville for sacramento, and you and your friends were to go down the sacramento road to a point below bear river in advance of the stages, and i was to select a suitable place for the meeting. judge barbour and his friends were to follow us in one of the coaches and i was to hail the driver as he approached the place of meeting. you and your adversary were to be stationed one hundred yards apart, each armed with as many colt's revolvers as he chose to carry; to fire upon each other at the word, and to advance at pleasure and finish the conflict. our party was promptly on the ground according to agreement; and when the first coach came in sight i hailed the driver and found that judge barbour and his friends were not aboard, and the coach passed on a little below us and turned out of the road and stopped. soon after the other coach came in sight, and i again hailed the driver, who stopped the coach, and judge barbour instantly jumped out, and in a very excited manner said that he was going forward to the other coach, and called on the passengers "to take notice, that if that d----d rascal" (pointing to you) "attacked him he would kill him." i stepped in front of judge barbour and said: hold! judge field will not attack you, sir; remarking at the same time to mr. fairfax that this was strange conduct on the part of his friend, and not in accordance with our understanding and agreement; that each party was to bear his portion of the responsibility of the meeting which was to take place between them. mr. fairfax appeared both astonished and mortified at the pusillanimous conduct of his principal, who seemed determined to rush forward to the other coach; and i requested him to wait until i could go back and consult you in the matter, for i was afraid that you might possibly be provoked to make the attack. when i returned to you and explained what had been said at the coach, you asked if it would be proper for you to make the attack. i told you most decidedly not; to let the coward go, and he would never annoy or trouble you again. mr. fairfax, who possessed a nice sense of honor, and was a gallant and accomplished gentleman, was so disgusted and mortified at the conduct of his principal that he left him and came over and joined our party, and after taking breakfast with us at nicolaus, returned with us to marysville, while judge barbour went on his way to sacramento. thus, what threatened in its inception to be a sanguinary tragedy, ended in a ridiculous farce. the determined and resolute stand which you assumed in this affair with judge barbour, saved you from any farther insolence or persecution from men of his class. this letter has been drawn out to a most tedious length, and yet there are many circumstances connected with our early life and times in marysville that i would add but for fear of trying your patience. please write to me on receipt of this, and tell me how my memory of the facts contained in this letter agrees with yours. very respectfully and truly your friend, gordon n. mott. * * * * * exhibit i. _letter of l. martin, esq., the friend of judge barbour in his street attack._ marysville, _tuesday, march , ' _. dear judge: i was glad to hear a few days ago from our friend filkins that the trouble between you and judge barbour had been settled, and that the hatchet was buried. i wish now to explain my connection with the assault made upon you about a year ago by barbour.[ ] you have always appeared to think me in some way implicated in that affair, because i was seen by you at that time not far off from him. the facts are these: judge barbour told me the night before that he expected to have a street fight with you, and wanted me to accompany him. i had heard of his conduct in the affair of the intended duel in sutter county, and knew there was bad blood between you, but i was astonished at his saying there was going to be a difficulty between you in the street. i consented to accompany him, but i supposed of course that you had received notice of his purpose, and that there would be no unfair advantage taken by him. i was, therefore, surprised when i saw you in front of your office with your arms partly filled with small pieces of board, apparently to kindle a fire. barbour's drawing a pistol upon you under these circumstances, and calling upon you to draw and defend yourself, was not what we call at the south very chivalric. it was not justified by me then, and never has been in any way or manner, and i told him he had acted badly. i was glad to hear you defy him as you did, and dare him to shoot. i reckon he is not very proud of his conduct. i have never approved of his action, and should never have accompanied him had i believed or suspected he had not given you notice of his purpose. with great respect i am very truly yours, l. martin. hon. judge field. [ ] it was february , . * * * * * exhibit j. _sections four, five, and seven of the act entitled "an act to expedite the settlement of titles to lands in the state of california," approved july st, ._ sec. . _and be it further enacted_, that whenever the district judge of any one of the district courts of the united states for california is interested in any land, the claim to which, under the said act of march third, eighteen hundred and fifty-one, is pending before him on appeal from the board of commissioners created by said act, the said district court shall order the case to be transferred to the circuit court of the united states for california, which court shall thereupon take jurisdiction and determine the same. the said district courts may also order a transfer to the said circuit court of any other cases arising under said act, pending before them, affecting the title to lands within the corporate limits of any city or town, and in such cases both the district and circuit judges may sit. sec. . _and be it further enacted_, that all the right and title of the united states to the lands within the corporate limits of the city of san francisco, as defined in the act incorporating said city, passed by the legislature of the state of california, on the fifteenth of april, one thousand eight hundred and fifty-one, are hereby relinquished and granted to the said city and its successors, for the uses and purposes specified in the ordinance of said city, ratified by an act of the legislature of the said state, approved on the eleventh of march, eighteen hundred and fifty-eight, entitled "an act concerning the city of san francisco, and to ratify and confirm certain ordinances of the common council of said city," there being excepted from this relinquishment and grant all sites or other parcels of lands which have been, or now are, occupied by the united states for military, naval, or other public uses, [or such other sites or parcels as may hereafter be designated by the president of the united states, within one year after the rendition to the general land-office, by the surveyor-general, of an approved plat of the exterior limits of san francisco, as recognized in this section, in connection with the lines of the public surveys: _and provided_, that the relinquishment and grant by this act shall in no manner interfere with or prejudice any bona fide claims of others, whether asserted adversely under rights derived from spain, mexico, or the laws of the united states, nor preclude a judicial examination and adjustment thereof.] sec. . _and be it further enacted_, that it shall be the duty of the surveyor-general of california, in making surveys of the private land claims finally confirmed, to follow the decree of confirmation as closely as practicable whenever such decree designates the specific boundaries of the claim. but when such decree designates only the out-boundaries within which the quantity confirmed is to be taken, the location of such quantity shall be made, as near as practicable, in one tract and in a compact form. and if the character of the land, or intervening grants, be such as to render the location impracticable in one tract, then each separate location shall be made, as near as practicable, in a compact form. and it shall be the duty of the commissioner of the general land-office to require a substantial compliance with the directions of this section before approving any survey and plat forwarded to him.--[ stats. at large, pp. - .] that part of the fifth section, which is included within brackets, was inserted at the suggestion of the commissioner of the general land-office. * * * * * _the act entitled "an act to quiet the title to certain lands within the corporate limits of the city of san francisco," approved march th, ._ _be it enacted by the senate and house of representatives of the united states of america in congress assembled_, that all the right and title of the united states to the land situated within the corporate limits of the city of san francisco, in the state of california, confirmed to the city of san francisco by the decree of the circuit court of the united states for the northern district of california, entered on the eighteenth day of may, one thousand eight hundred and sixty-five, be, and the same are hereby, relinquished and granted to the said city of san francisco and its successors, and the claim of the said city to said land is hereby confirmed, subject, however, to the reservations and exceptions designated in said decree, and upon the following trusts, namely, that all the said land, not heretofore granted to said city, shall be disposed of and conveyed by said city to parties in the bona fide actual possession thereof, by themselves or tenants, on the passage of this act, in such quantities and upon such terms and conditions as the legislature of the state of california may prescribe, except such parcels thereof as may be reserved and set apart by ordinance of said city for public uses: _provided, however_, that the relinquishment and grant by this act shall not interfere with or prejudice any valid adverse right or claim, if such exist, to said land or any part thereof, whether derived from spain, mexico, or the united states, or preclude a judicial examination and adjustment thereof.--[ stat. at large, p. .] * * * * * exhibit k. _letter of judge lake giving an account of the torpedo._ san francisco, _april , ' _. honorable stephen j. field. my dear sir: in the winter of i was in washington attending the united states supreme court, and was frequently a visitor at your room. one morning in january of that year i accompanied you to your room, expecting to find letters from san francisco, as i had directed that my letters should be forwarded to your care. i found your mail lying on the table. among other matter addressed to you was a small package, about four inches square, wrapped in white paper, and bearing the stamp of the pioneer photographic gallery of san francisco. two printed slips were pasted upon the face of the package and formed the address: your name, evidently cut from the title-page of the "california law reports;" and "washington, d.c.," taken from a newspaper. you supposed it to be a photograph, and said as much to me, though from the first you professed surprise at the receipt of it. you were standing at the window, when you began to open it, and had some difficulty in making the cover yield. when you had removed the cover you raised the lid slightly, but in a moment said to me, "what is this, lake? it can hardly be a photograph." a sudden suspicion flashed upon me, and stepping to your side, i exclaimed, "don't open it; it means mischief!" when i had looked at it more nearly, i said, "it's an infernal machine" or "a torpedo." i carried it over to the capitol, opposite to your rooms, where mr. broom, one of the clerks of the supreme court, joined me in the examination of your mysterious looking present. it was put in water, and afterwards we dashed off the lid of the box by throwing it against the wall in the carriage way under the senate steps. about a dozen copper cartridges were disclosed--those used in a smith & wesson pocket pistol, it appeared afterward--six of them lying on each side of a bunch of friction matches in the centre. the sides of the cartridges had been filed through, so that the burning of the matches might explode the cartridges. the whole was kept in place in a bed of common glue, and a strip of sand-paper lying upon the heads of the matches was bent into a loop to receive the bit of thread, whose other end, secured to the clasp of the box, produced that tension and consequent pressure requisite to ignite the matches upon the forcible opening of the lid. to make assurance doubly sure, a paste of fulminating powder and alcohol had been spread around the matches and cartridges. there was a newspaper slip also glued to the inside of the lid, with words as follows: "monday, oct. , . the city of san francisco vs. united states. judge field yesterday delivered the following opinion in the above case. it will be read with great interest by the people of this city." then followed several lines of the opinion. even that gave no clue to the source of the infernal machine, but from the fact that it was evidently made by a scientific man, and that from its size it must have been passed through the window at the post office, instead of into the letter-box, it was thought [that there was] a sufficiently conspicuous mode of action to expose the sender of the torpedo to detection. whoever it may have been took a late vengeance for the decision of the pueblo case--if such was the veritable motive of the frustrated assassination--as the decision referred to was rendered in . on that account it was conjectured that the contriver of the machine might be some guilty person, who had received sentence from you, and who used the reference to the pueblo case to divert suspicion from himself. so far as i know, all efforts to discover the author of the intended mischief have been fruitless. the box with its contents, was sent to the secretary of war, who directed an examination by the ordnance department. general dyer, then chief of ordnance, pronounced it a most cleverly combined torpedo, and exploded one of the cartridges in a closed box, producing a deep indentation upon its sides. general dyer added, among other analytical details, that the ball weighed grains. all the circumstances connected with the reception of the infernal machine were too singular and, at that time, ominous, not to remain vividly impressed upon my memory. very truly, your friend, delos lake. * * * * * exhibit l. _the following is an extract from the report to the commissioner of the general land-office by the register and receiver of the land-office in california, to whom the matter of the contests for lands on the soscol ranch was submitted for investigation, showing the condition and occupation of the lands previous to the rejection of the grant by the supreme court of the united states, and the character of the alleged pre-emption settlements which julian undertook to defend._ a general report of the facts established by said evidence is briefly as follows:[ ] when the united states government took possession of california, don mariana guadaloupe vallejo was in the occupancy of the rancho of soscol, claiming to own it by virtue of the grant from the mexican nation, which has recently (december term, ) been declared invalid by the supreme court of the united states. his occupancy was the usual one of the country and in accordance with the primitive habits of the people. he possessed the land by herding stock upon it. general vallejo, as military commandante of his district, consisting of all alta california lying north of the bay of san francisco, was necessarily the leading personage of the country. his influence among the rude inhabitants of the territory was almost monarchical, and his establishment was in accordance with his influence. his residence at sonoma was the capital of his commandancy, and the people of the country for hundreds of miles around looked to general vallejo for advice and assistance in business and for protection and defence in time of trouble. these things are part of the history of california. he had other ranches besides that of soscol, as that at sonoma, which was devoted to agriculture and residences. the soscol he especially devoted to the herding and grazing of stock, for which purpose it was most admirably adapted. wild oats grew in great luxuriance all over this tract, from the water's edge to the tops of the highest hills, and being surrounded on three sides by the waters of the bays and rivers, required little attention in the way of herdsmen. on this rancho general vallejo kept as many as fifteen thousand head of horses and horned cattle running at will, attended only by the necessary vaqueros employed to watch and attend them. there was no other use to which the land could at that time be devoted. the want of reliable labor and lack of a market both forbade agricultural operations beyond personal or family necessities. it was not practicable then, nor for years after, to put the land to any use other than stock pasturing. we have, therefore, to report that the possession that general vallejo had of "soscol" in was the usual use and possession of the time and the country, and that it was the best and most perfect use and occupation of which the land was capable. the rancho was, therefore, reduced to possession by general vallejo before the americans took possession of the country. soon after the american occupation or conquest, general vallejo began to sell off portions of the "soscol," and continued this practice until about the year , at which time he sold the last of it, and does not appear to have had or claimed any interest since. this sale and consequent dividing the land into small parcels produced its usual effect in the way of improvements. from to the "rancho of soscol" was almost entirely reduced to absolute and actual possession and control by his vendees, being by them fenced up into fields, surrounded by substantial enclosures, and improved with expensive farm-houses, out-buildings, orchards, and the like, and was cultivated to grain wherever suitable for that purpose. it had upon it two cities of considerable importance, viz: benicia and vallejo, each of which had been at one time the capital of the state of california. no rural district of california was more highly improved than this, and but a very small portion equal to it. the title to "soscol," before its rejection by the united states supreme court, was considered the very best in all california. all the really valuable agricultural land in california was held under mexican grants, and, as a consequence, all had to pass the ordeal of the land commission. from to about very few had been finally passed upon by the courts, so that during that time the question for the farmer to decide was not what title is perfect, but what title is most likely to prove so by the final judgment of the supreme court. amongst the very best, in the opinion of the public, stood "soscol." one conclusive, unanswerable proof of that fact is this, that there was not a single settler on the grant at the time it was rejected. not one person on it, except in subordination to the vallejo title. every resident on the whole tract held his land by purchase from vallejo, or his assigns, and held just precisely the land so purchased, and not one acre more or less. this fact was not even disputed during the whole eight months of investigation through which we have just passed. it is a notorious fact that of the grants in california which have stood the test of the supreme court, very many have been entirely in the possession of squatters, and all with more or less of such possessions, and the final patent has alone succeeded in recovering the long-lost possession to the grantholder. there were no settlers on the "soscol." the people had the most perfect confidence in the title. it had been twice confirmed by tribunals of high authority and great learning--first by the united states land commission, and then by the district court of the united states. it only wanted the final confirmation by the supreme court, and none doubted that it would follow of course. business could not, and would not, await the nine years consumed in adjudicating this title. farmers were obliged to have lands, and they bought them. capital must and would seek investment, and it was lent on mortgage. when all titles required the same confirmatory decree, the citizen could not discriminate, but exercised his best judgment. the sales of lands upon the "soscol" were made at prices which called for perfect title; they brought the full improved value of the land. money was lent on mortgage in the same way. the deeds and mortgages, which accompany the respective cases, are the very best evidence of the opinion the public entertained of the character of the soscol grant title. the people were amazed when it was announced that the soscol grant had been rejected. no fact developed by this examination has appeared so surprising to the mind of the register and receiver as that there were no pre-emption settlers on the "soscol." this is so unusual in california that we expected to find the contrary. there was no possession on the tract adverse to the grant title. thus stood matters until early in the year , when the intelligence reached california that the grant had been rejected by the supreme court. the struggle soon began. there was at that time employed upon the united states navy-yard at mare island, and also upon the pacific mail company's works at benicia, a large number of mechanics and laborers. there was also in the towns of benicia and vallejo a large floating population. tempted by the great value of these lands in their highly improved state, many of these persons squatted upon the rancho. the landholders in possession resisted. the houses of the great majority of the settlers were erected in the night time, as it was necessary to enter the enclosed fields by stealth. these houses were built of rough redwood boards set up edgewise, with shed roof, and without window, fire place, or floor. they were about eight feet square, sometimes eight by ten feet, and never over six feet high. we have no hesitation in saying that they were utterly unfit for the habitation of human beings, and further that they were never designed for permanent residences. the mode of erecting these shanties was as follows: the planks were sawed the right length in the town of vallejo or benicia, in the afternoon of the day, and at nightfall were loaded upon a cart. about eleven o'clock at night the team would start for the intended settlement, reaching there about one or two o'clock in the morning. between that hour and daylight the house would be erected and finished. sometimes the house would be put together with nails, but when too near the residence of the landholder in possession, screws would be used to prevent the sound of the hammer attracting attention. very few of this class of settlers remained upon their claims above a few days, but soon returned to their ordinary occupations in the towns. generally after they would leave the landholders would remove the shanties from the ground. in some cases they would pull them down with force immediately upon discovering them, and in the presence of the settlers. a few of them got settlements near enough to their places of employment to enable them to work in town, or at the navy-yard, and to sleep in their shanties; some regularly, others only occasionally. these generally remained longer than the others, but none of this class remained up to the time of trial. none of the settlers, who went on since the grant was rejected, have attempted regular improvements or cultivation. a few have harvested the grain planted by the landholders, as it grew on their / [quarter-section]; they would harvest it, and offer this as evidence of good faith and cultivation. we have no hesitation in pronouncing, from the evidence, that these are not settlers within the spirit of the pre-emption laws, but are mere speculators, desirous of getting the improvements of another to sell and to make money. [ ] the evidence taken before those officers. * * * * * the preceding personal reminiscences of early days in california by judge field, with other sketches, were dictated by him to a stenographer in the summer of , at san francisco. they were afterwards printed for a few friends, but not published. the edition was small and soon exhausted, and each year since the judge has been asked for copies. the reprint is therefore made. the history of the attempt at his assassination by a former associate on the supreme bench of california is added. it is written by hon. george c. gorham, a warm personal friend of the judge for many years, who is thoroughly informed of the events described. * * * * * the story of the attempted assassination of justice field by a former associate on the supreme bench of california. by hon. george c. gorham. note by the publishers. mr. gorham is a life-long friend of justice field. he was his clerk when the latter held the alcalde's court in marysville, in ; and was clerk of the u. . circuit court of the district of california when it was organized, after judge field's appointment to the u.s. supreme bench. subsequently, and for several years, he was secretary of the u.s. senate. since his retirement from office he has resided in washington. for a part of the time he edited a republican paper in that city, but of late years he has been chiefly engaged in literary works, of which the principal one is the life and history of the late secretary of war, edwin m. stanton. * * * * * index. attempted assassination of justice field by a former associate on the state supreme bench chapter i the sharon-hill-terry litigation. chapter ii proceedings in the superior court of the state. chapter iii proceedings in the united states circuit court. [transriber's note: there is no chapter iv] chapter v decision of the case in the federal court. chapter vi the marriage of terry and miss hill. chapter vii the bill of revivor. chapter viii the terrys imprisoned for contempt. chapter ix terry's petition to the circuit court for a release--its refusal--he appeals to the supreme court--unanimous decision against him there. chapter x president cleveland refuses to pardon terry--false statements of terry refuted. chapter xi terry's continued threats to kill justice field--return of the latter to california in . chapter xii further proceedings in the state court.--judge sullivan's decision reversed. chapter xiii attempted assassination of justice field, resulting in terry's own death at the hands of a deputy united states marshal. chapter xiv sarah althea terry charges justice field and deputy marshal neagle with murder. chapter xv justice field's arrest and petition for release on habeas corpus. chapter xvi judge terry's funeral--refusal of the supreme court of california to adjourn on the occasion. chapter xvii habeas corpus proceedings in justice field's case. chapter xviii habeas corpus proceedings in neagle's case. chapter xix expressions of public opinion. chapter xx the appeal to the supreme court of the united states, and the second trial of sarah althea's divorce case. chapter xxi concluding observations. * * * * * attempted assassination of justice field by a former associate on the state supreme bench. the most thrilling episode in the eventful life of justice field was his attempted assassination at lathrop, california, on the th day of august, , by david s. terry, who had been chief justice of the state during a portion of justice field's service on that bench. terry lost his own life in his desperate attempt, by the alertness and courage of david s. neagle, a deputy united states marshal, who had been deputed by his principal, under an order from the attorney-general of the united states, to protect justice field from the assassin, who had, for nearly a year, boldly and without concealment, proclaimed his murderous purpose. the motive of terry was not in any manner connected with their association on the state supreme bench, for there had never been any but pleasant relations between them. terry resigned from the bench in to challenge senator broderick of california to the duel in which the latter was killed. he entered the confederate service during the war, and some time after its close he returned to california, and entered upon the practice of the law. in he was a candidate for presidential elector on the democratic ticket. his associates on that ticket were all elected, while he was defeated by the refusal of a number of the old friends of broderick to give him their votes. it is probable that his life was much embittered by the intense hatred he had engendered among the friends of broderick, and the severe censure of a large body of the people of the state, not especially attached to the political fortunes of the dead senator. these facts are mentioned as furnishing a possible explanation of judge terry's marked descent in character and standing from the chief-justiceship of the state to being the counsel, partner, and finally the husband of the discarded companion of a millionaire in a raid upon the latter's property in the courts. it was during the latter stages of this litigation that judge terry became enraged against justice field, because the latter, in the discharge of his judicial duties, had been compelled to order the revival of a decree of the united states circuit court, in the rendering of which he had taken no part. a proper understanding of this exciting chapter in the life of justice field renders necessary a narrative of the litigation referred to. it is doubtful if the annals of the courts or the pages of romance can parallel this conspiracy to compel a man of wealth to divide his estate with adventurers. whether it is measured by the value of the prize reached for, by the character of the conspirators, or by the desperate means to which they resorted to accomplish their object, it stands in the forefront of the list of such operations. chapter i. the sharon-hill-terry litigation. the victim, upon a share of whose enormous estate, commonly estimated at $ , , , these conspirators had set their covetous eyes, was william sharon, then a senator from the state of nevada. the woman with whom he had terminated his relations, because he believed her to be dangerous to his business interests, was sarah althea hill. desirous of turning to the best advantage her previous connection with him, she sought advice from an old negress of bad repute, and the result was a determination to claim that she had a secret contract of marriage with him. this negress, who during the trial gave unwilling testimony to having furnished the sinews of war in the litigation to the extent of at least five thousand dollars, then consulted g.w. tyler, a lawyer noted for his violent manner and reckless practices, who explained to her what kind of a paper would constitute a legal marriage contract under the laws of california. no existing contract was submitted to him, but he gave his written opinion as to what kind of a contract it would be good to have for the purpose. the pretended contract was then manufactured by sarah althea in accordance with this opinion, and tyler subsequently made a written agreement with her by which he was to act as her attorney, employ all necessary assistance, and pay all expenses, and was to have one-half of all they could get out of sharon by their joint efforts as counsel and client. this contract was negotiated by an australian named neilson, who was to have one-half of the lawyer's share. on the th of september, , a demand was made upon mr. sharon for money for miss hill. he drove her emissary, neilson, out of the hotel where he had called upon him, and the latter appeared the next day in the police court of san francisco and made an affidavit charging mr. sharon with the crime of adultery. a warrant was issued for the latter's arrest, and he was held to bail in the sum of $ , . this charge was made for the avowed purpose of establishing the manufactured contract of marriage already referred to, which bore date three years before. a copy of this alleged contract was furnished to the newspapers together with a letter having sharon's name appended to it, addressed at the top to "my dear wife," and at the bottom to "miss hill." this pretended contract and letter mr. sharon denounced as forgeries. on the d of october, , mr. sharon commenced suit in the united states circuit court at san francisco against sarah althea hill, setting forth in his complaint that he was a citizen of the state of nevada, and she a citizen of california; "that he was, and had been for years, an unmarried man; that formerly he was the husband of maria ann sharon, who died in may, , and that he had never been the husband of any other person; that there were two children living, the issue of that marriage, and also grandchildren, the children of a deceased daughter of the marriage; that he was possessed of a large fortune in real and personal property; was extensively engaged in business enterprises and ventures, and had a wide business and social connection; that, as he was informed, the defendant was an unmarried woman of about thirty years of age, for some time a resident of san francisco; that within two months then past she had repeatedly and publicly claimed and represented that she was his lawful wife; that she falsely and fraudulently pretended that she was duly married to him on the twenty-fifth day of august, , at the city and county of san francisco; that on that day they had jointly made a declaration of marriage showing the names, ages, and residences of the parties, jointly doing the acts required by the civil code of california to constitute a marriage between them, and that thereby they became and were husband and wife according to the law of that state. "the complainant further alleged that these several claims, representations, and pretensions were wholly and maliciously false, and were made by her for the purpose of injuring him in his property, business, and social relations; for the purpose of obtaining credit by the use of his name with merchants and others, and thereby compelling him to maintain her; and for the purpose of harassing him, and in case of his death, his heirs and next of kin and legatees, into payment of large sums of money to quiet her false and fraudulent claims and pretensions. he also set forth what he was informed was a copy of the declaration of marriage, and alleged that if she had any such instrument, it was 'false, forged, and counterfeited;' that he never, on the day of its date, or at any other time, made or executed any such document or declaration, and never knew or heard of the same until within a month previous to that time, and that the same was null and void as against him, and ought, in equity and good conscience, to be so declared, and ordered to be delivered up, to be annulled and cancelled." the complaint concluded with a prayer that it be adjudged and decreed that the said sarah althea hill was not and never had been his wife; that he did not make the said joint declaration of marriage with her, or any marriage between them; that said contract or joint declaration of marriage be decreed and adjudged false, fraudulent, forged, and counterfeited, and ordered to be delivered up and cancelled and annulled, and that she be enjoined from setting up any claims or pretensions of marriage thereby. sharon was a citizen of nevada, while miss hill was a citizen of california.[ ] before the time expired in which miss hill was required to answer the complaint of mr. sharon in the united states circuit court, but not until after the federal jurisdiction had attached in that court, she brought suit against him, november st, in a state superior court, in the city and county of san francisco, to establish their alleged marriage and then obtain a decree, and a division of the property stated to have been acquired since such marriage. in her complaint she alleged that on the th day of august, , they became, by mutual agreement, husband and wife, and thereafter commenced living together as husband and wife; that on that day they had jointly made a declaration of marriage in writing, signed by each, substantially in form as required by the civil code of california, and until the month of november, , had lived together as husband and wife; that since then the defendant had been guilty of sundry violations of the marriage contract. the complaint also alleged that when the parties intermarried the defendant did not have in money or property more than five millions of dollars, with an income not exceeding thirty thousand dollars a month, but that since their intermarriage they had by their prudent management of mines, fortunate speculations, manipulations of the stock market, and other business enterprises, accumulated in money and property more than ten millions of dollars, and that now he had in his possession money and property of the value at least of fifteen millions of dollars, from which he received an income of over one hundred thousand dollars a month. the complaint concluded with a prayer that the alleged marriage with the defendant might be declared legal and valid, and that she might be divorced from him, and that an account be taken of the common property, and that the same be equally divided between them. the campaign was thus fully inaugurated, which for more than six years disgraced the state with its violence and uncleanness, and finally ended in bloodshed. the leading combatants were equally resolute and determined. mr. sharon, who was a man of remarkable will and energy, would have expended his entire fortune in litigation before he would have paid tribute to those who thus attempted to plunder him. sarah althea hill was respectably connected, but had drifted away from her relations, and pursued, without restraint, her disreputable course. she affected a reckless and daredevil character, carrying a pistol, and exhibiting it on occasions in cow-boy fashion, to convey the impression that those who antagonized her had a dangerous character with whom to deal. she was ignorant, illiterate, and superstitious. the forged document which she thought to make a passport to the enjoyment of a share of sharon's millions was a clumsy piece of work. it was dated august , , and contained a clause pledging secrecy for two years thereafter. but she never made it public until september, , although she had, nearly two years before that, been turned out of her hotel by sharon's orders. at this treatment she only whimpered and wrote begging letters to him, not once claiming, even in these private letters to him, to be his wife. she could then have published the alleged contract without any violation of its terms, and claimed any rights it conferred, and it is obvious to any sane man that she would have done so had any such document then been in existence. although sharon's case against sarah althea hill was commenced in the federal court before the commencement of miss hill's case against sharon in the state court, the latter case was first brought to trial, on the th of march, . [ ] note.--a court of equity having jurisdiction to lay its hands upon and control forged and fraudulent instruments, it matters not with what pretensions and claims their validity may be asserted by their possessor; whether they establish a marriage relation with another, or render him an heir to an estate, or confer a title to designated pieces of property, or create a pecuniary obligation. it is enough that, unless set aside or their use restrained, they may impose burdens upon the complaining party, or create claims upon his property by which its possession and enjoyment may be destroyed or impaired. (sharon vs. terry, sawyer's rep., .) the civil code of california also declares that "a written instrument in respect to which there is a reasonable apprehension that, if left outstanding, it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or cancelled" (sec. ). chapter ii. proceedings in the superior court of the state. mr. sharon defended in the state court, and prosecuted in the federal court with equal energy. in the former he made an affidavit that the pretended marriage contract was a forgery and applied to the court for the right to inspect it, and to have photographic copies of it made. sarah althea resisted the judge's order to produce the document in question, until he informed her that, if she did not obey, the paper would not be admitted as evidence on the trial of the action. on the second day of the trial in the state court miss hill reinforced her cause by the employment of judge david s. terry as associate counsel. he brought to the case a large experience in the use of deadly weapons, and gave the proceedings something of the character of the ancient "wager of battle." numerous auxiliaries and supernumeraries in the shape of lesser lawyers, fighters, and suborned witnesses were employed in the proceedings, as from time to time occasion required. the woman testified in her own behalf that upon a visit to mr. sharon's office he had offered to pay her $ , per month if she would become his mistress; that she declined his offer in a business-like manner, without anger, and entered upon a conversation about getting married; she swore at a subsequent interview she drafted a marriage contract at sharon's dictation. this document, to which she testified as having been thus drawn up, is as follows: "in the city and county of san francisco, state of california, on the th day of august, a.d., , i, sarah althea hill, of the city and county of san francisco, state of california, aged twenty-seven years, do here, in the presence of almighty god, take senator william sharon, of the state of nevada, to be my lawful and wedded husband, and do here acknowledge and declare myself to be the wife of senator william sharon, of the state of nevada. sarah althea hill. august , , san francisco, cal." * * * * * "i agree not to make known the contents of this paper or its existence for two years unless mr. sharon, himself, sees fit to make it known. sarah althea hill." * * * * * "in the city and county of san francisco, state of california, on the th day of august, a.d. , i, senator william sharon, of the state of nevada, aged sixty years, do here, in the presence of almighty god, take sarah althea hill, of the city and county of san francisco, california, to be my lawful and wedded wife, and do here acknowledge myself to be the husband of sarah althea hill. william sharon, nevada. august , ." in his testimony mr. sharon contradicted every material statement made by sarah althea hill. he denied every circumstance connected with the alleged drawing up of the marriage contract. he testified that on the th day of november, , he terminated his relations with and dismissed her, and made a full settlement with her by the payment of $ , in cash, and notes amounting to $ , . for these she gave him a receipt in full. he charged her with subsequently stealing that receipt at one of two or three visits made by her after her discharge. it is unnecessary to review the voluminous testimony introduced by the parties in support of their respective contentions. the alleged contract was clearly proven to be a forgery. a number of witnesses testified to conversations had with miss hill long after the date of the pretended marriage contract, in which she made statements entirely inconsistent with the existence of such a document. she employed fortune-tellers to give her charms with which she could compel mr. sharon to marry her, and this, too, when she pretended to have in her possession the evidence that she was already his wife. not an appearance of probability attended the claim of this bold adventuress. every statement she made concerning the marriage contract, and every step she took in her endeavor to enforce it, betrayed its false origin. the trial of the case in the state court continued from march th until may th, when the summer recess intervened. it was resumed july th, and occupied the court until september th, on which day the argument of counsel was concluded and the case submitted. no decision was rendered until more than three months afterwards, namely, december th. nearly two months were then allowed to pass before the decree was entered, february , . the case was tried before judge sullivan without a jury, by consent of the parties. he decided for the plaintiff, holding the marriage contract to be genuine, and to constitute a valid marriage. it was manifest that he made his decision solely upon the evidence given by sarah althea herself, whom he nevertheless branded in his opinion as a perjurer, suborner of perjury, and forger. lest this should seem an exaggeration his own words are here quoted. she stated that she was introduced by sharon to certain parties as his wife. of her statements to this effect the judge said: "plaintiff's testimony as to these occasions is directly contradicted, and in my judgment her testimony as to these matters is wilfully false." concerning $ , paid her by sharon, which she alleged she had placed in his hands in the early part of her acquaintance with him, the judge said: "this claim, in my judgment, is utterly unfounded. no such advance was ever made." at another place in his opinion the judge said: "plaintiff claims that defendant wrote her notes at different times after her expulsion from the grand hotel. if such notes were written, it seems strange that they have not been preserved and produced in evidence. i do not believe she received any such notes." with respect to another document which purported to have been signed by mr. sharon, and which sarah althea produced under compulsion, then withdrew it, and failed to produce it afterwards, when called for, saying she had lost it, judge sullivan said: "among the objections suggested to this paper as appearing on its face, was one made by counsel that the signature was evidently a forgery. the matters recited in the paper are, in my judgment, at variance with the facts it purports to recite. considering the stubborn manner in which the production of this paper was at first resisted and the mysterious manner of its disappearance, i am inclined to regard it in the light of one of the fabrications for the purpose of bolstering up plaintiff's case. i can view the paper in no other light than as a fabrication." in another part of his opinion judge sullivan made a sort of a general charge of perjury against her in the following language: "i am of the opinion that to some extent plaintiff has availed herself of the aid of false testimony for the purpose of giving her case a better appearance in the eyes of the court, but sometimes parties have been known to resort to false testimony, where in their judgment it would assist them in prosecuting a lawful claim. as i understand the facts of this case, that was done in this instance." in another place judge sullivan said: "i have discussed fully, in plain language, the numerous false devices resorted to by the plaintiff for the purpose of strengthening her case." miss sarah and her attorneys had now come in sight of the promised land of sharon's ample estate. regular proceedings, however, under the law, seemed to them too slow; and besides there was the peril of an adverse decision of the supreme court on appeal. they then decided upon a novel course. section of the civil code of california provides that while an action for divorce is pending, the court may, in its discretion, require the husband to pay as alimony any money necessary to enable the wife to support herself and to prosecute or defeat the action. the enterprising attorneys, sharing the bold spirit of their client, and presuming upon the compliance of a judge who had already done so well by them, went into the court, on the th of january, , and modestly demanded for sarah althea, upon the sole authority of the provision of law above quoted, $ , per month, as the money necessary to enable her to support herself, and $ , for attorneys' fees to prosecute the action. this was to include back pay for thirty-eight months, making a sum of $ , , which added to the $ , , attorneys' fees, would have made a grand total of $ , . this was an attempt, under the color of a beneficent law, applicable only to actions for divorce, in which the marriage was not denied, to extort from a man more than one-half million dollars, for the benefit of a woman, seeking first to establish a marriage, and then to secure a divorce, in a case in which no decree had as yet been entered, declaring her to be a wife. it was not merely seeking the money necessary to support the plaintiff and prosecute the case; it was a request that the inferior court should confiscate more than half a million dollars, in anticipation of a decision of the supreme court on appeal. it was as bold an attempt at spoliation as the commencement of the suit itself. the supreme court of the state had decided that the order of a superior court allowing alimony during the pendency of any action for divorce is not appealable, but it had not decided that, under the pretence of granting alimony, an inferior judge could apportion a rich man's estate among champerty lawyers, and their adventurous client, by an order from which there could be no appeal, made prior to any decree that there had ever been a marriage between the parties, when the fact of the marriage was the main issue in the case. the counsel for sharon insisted upon his right to have a decree entered from which he could appeal, before being thus made to stand and deliver, and the court entertained the motion. upon this motion, among other affidavits read in opposition, was one by mr. sharon himself, in which he recited the agreement between miss hill and her principal attorney, george w. tyler, in which she was to pay him for his services, one-half of all she might receive in any judgment obtained against sharon, he, tyler, advancing all the costs of the litigation. the original of this agreement had been filed by tyler with the county clerk immediately after the announcement of the opinion in the case as an evidence of his right to half of the proceeds of the judgment. it was conclusive evidence that sarah althea required no money for the payment of counsel fees. after the filing of a mass of affidavits, and an exhaustive argument of the motion, judge sullivan rendered his decision, february , , granting to sarah althea hill an allowance of $ , per month, to take effect as of the date of the motion, january , , and further sums of $ , each to be paid on the th day of april, and of each succeeding month until further order of the court. this the judge thought reasonable allowance "in view of the plaintiff's present circumstances and difficulties." for counsel fees he allowed the sum of $ , , and at the request of the victors, made in advance, he divided the spoils among them as follows: to tyler and tyler $ , to david s. terry , to moon and flournoy , to w.h. levy , to clement, osmond and clement , by what rule $ , was awarded as a proper monthly allowance to the woman whose services to mr. sharon had commanded but $ per month it is difficult to conjecture. it was benevolence itself to give $ , to a troop of lawyers enlisted under the command of tyler, who had agreed to conduct the proceedings wholly at his own cost, for one-half of what could be made by the buccaneering enterprise. it seemed to be the purpose of these attorneys to see how much of mr. sharon's money they could, with judge sullivan's assistance, lay their hands upon before the entry of the judgment in the case. from the judgment an appeal could be taken. by anticipating its entry they thought that they had obtained an order from which no appeal would lie. it was not until three days after this remarkable order was made that the decree was entered by judge sullivan declaring plaintiff and defendant to be husband and wife; that he had deserted her, and that she was entitled to a decree of divorce, with one-half of the common property accumulated by the parties since the date of what he decided to be a valid marriage contract. sharon appealed from the final judgment, and also from the order for alimony. notwithstanding this appeal, and the giving of a bond on appeal in the sum of $ , to secure the payment of all alimony and counsel fees, judge sullivan granted an order directing mr. sharon to show cause why he should not be punished for contempt in failing to pay alimony and counsel fees, as directed by the order. the supreme court, upon application, granted an order temporarily staying proceedings in the case. this stay of proceedings was subsequently made permanent, during the pendency of the appeal. mr. sharon died november , . that very day had been set for a hearing of sharon's motion for a new trial. the argument was actually commenced on that day and continued until the next, at which time the motion was ordered off the calendar because meantime mr. sharon had deceased. chapter iii. proceedings in the united states circuit court. while these proceedings were being had in the state courts the case of sharon vs. hill in the federal court was making slow progress. miss hill's attorneys seemed to think that her salvation depended upon reaching a decision in her case before the determination of sharon's suit in the united states circuit court. they were yet to learn, as they afterwards did, that after a united states court takes jurisdiction in a case, it cannot be ousted of that jurisdiction by the decision of a state court, in a proceeding subsequently commenced in the latter. seldom has "the law's delay" been exemplified more thoroughly than it was by the obstacles which her attorneys were able to interpose at every step of the proceedings in the federal court. sharon commenced his suit in the united states circuit court october , , twenty-eight days before his enemy commenced hers in the state superior court. by dilatory pleas her counsel succeeded in delaying her answer to sharon's suit until after the decision in her favor in the state court. she did not enter an appearance in the federal court until the very last day allowed by the rule. a month later she filed a demurrer. her counsel contrived to delay the argument of this demurrer for seven weeks after it was filed. it was finally argued and submitted on the st of january, . on the d of march it was overruled and the defendant was ordered to answer in ten days, to wit, march th. then the time for answering was extended to april th. when that day arrived her counsel, instead of filing an answer, filed a plea in abatement, denying the non-residence of mr. sharon in the state of california, on which depended his right to sue in the federal court. to this mr. sharon's counsel filed a replication on the th of may. it then devolved upon miss hill's counsel to produce evidence of the fact alleged in the plea, but, after a delay of five months and ten days, no evidence whatever was offered, and the court ordered the plea to be argued on the following day. it was overruled, and thirty days were given to file an answer to sharon's suit. the case in the state court had then been tried, argued, and submitted thirty days before, but miss hill's counsel were not yet ready to file their answer within the thirty days given them, and the court extended the time for answer until december th. six days before that day arrived judge sullivan rendered his decision. at last, on the th of december, , fourteen months after the filing of sharon's complaint, sarah althea's answer was filed in the federal court, in which, among other things, she set up the proceedings and decree of the state court, adjudging the alleged marriage contract to be genuine and legal, and the parties to be husband and wife, and three days later sharon filed his replication. there was at no time any delay or want of diligence on the part of the plaintiff in prosecuting this suit to final judgment. on the contrary, as is plainly shown in the record above stated, the delays were all on the part of the defendant. the taking of the testimony in the united states circuit court commenced on the th of february, , and closed on the th of august following. the struggle in the state court was going on during all the time of the taking of the testimony in the federal court, and intensified the excitement attendant thereon. miss hill was in constant attendance before the examiner who took the testimony, often interrupting the proceedings with her turbulent and violent conduct and language, and threatening the lives of mr. sharon's counsel. she constantly carried a pistol, and on occasions exhibited it during the examination of witnesses, and, pointing it at first one and then another, expressed her intention of killing them at some stage of the proceedings. she was constantly in contempt of the court, and a terror to those around her. her conduct on one occasion, in august, , became so violent that the taking of the testimony could not proceed, and justice field, the presiding judge of the circuit, made an order that she should be disarmed, and that a bailiff of the court should sit constantly at her side to restrain her from any murderous outbreak, such as she was constantly threatening. her principal attorney, tyler, was also most violent and disorderly. judge terry, while less explosive, was always ready to excuse and defend his client. (see report of proceedings in sharon vs. hill, sawyer's circuit court reps., .) upon the request of counsel for the complainant, the examiner in one case reported to the court the language and the conduct of miss hill. among other things, he reported her as saying: "when i see this testimony [from which certain scandalous remarks of hers were omitted] i feel like taking that man stewart[ ] out and cowhiding him. i will shoot him yet; that very man sitting there. to think that he would put up a woman to come here and deliberately lie about me like that. i will shoot him. they know when i say i will do it that i will do it. i shall shoot him as sure as you live; that man that is sitting right there. and i shall have that woman mrs. smith arrested for this, and make her prove it." and again: "i can hit a four-bit piece nine times out of ten." the examiner said that pending the examination of one of the witnesses, on the occasion mentioned, the respondent drew a pistol from her satchel, and held it in her right hand; the hand resting for a moment upon the table, with the weapon pointed in the direction of judge evans. he also stated that on previous occasions she had brought to the examiner's room during examinations a pistol, and had sat for some length of time holding it in her hand, to the knowledge of all persons present at the time. after the reading of the examiner's report in open court, justice field said: "in the case of william sharon versus sarah althea hill, the examiner in chancery appointed by the court to take the testimony has reported to the court that very disorderly proceedings took place before him on the d instant; that at that day, in his room, when counsel of the parties and the defendant were present, and during the examination of a witness by the name of piper, the defendant became very much excited, and threatened to take the life of one of the counsel, and that subsequently she drew a pistol and declared her intention to carry her threat into effect. it appears also from the report of the examiner that on repeated occasions the defendant has attended before him, during the examination of witnesses, armed with a pistol. such conduct is an offense against the laws of the united states punishable by fine and imprisonment. it interferes with the due order of proceedings in the administration of justice, and is well calculated to bring them into contempt. i, myself, have not heretofore sat in this case and do not expect to participate in its decision; i intend in a few days to leave for the east, but i have been consulted by my associate, and have been requested to take part in this side proceeding, for it is of the utmost importance for the due administration of justice that such misbehavior as the examiner reports should be stopped, and measures be taken which will prevent its recurrence. my associate will comment on the laws of congress which make the offense a misdemeanor, punishable by fine and imprisonment. "the marshal of the court will be directed to disarm the defendant whenever she goes before the examiner or into court in any future proceeding, and to appoint an officer to keep strict surveillance over her, in order that she may not carry out her threatened purpose. this order will be entered. the justice then said that it is to be observed that this block, embracing this building--the court-house--is under the exclusive jurisdiction of the united states. every offense committed within it is an offense against the united states, and the state has no jurisdiction whatever. this fact seems to have been forgotten by the parties." the following is the order then entered as directed by justice field: "whereas it appears from the report to this court of the examiner in chancery in this case appointed to take the depositions of witnesses, that on the d day of august, instant, at his office, counsel of the parties appeared, namely, william m. stewart, esquire, and oliver p. evans, esquire, for the complainant, and w.b. tyler, esquire, for the defendant, and the defendant in person, and that during the examination before said examiner of a witness named piper, the defendant became excited and threatened the life of the counsel of the complainant present, and exhibited a pistol with a declared intention to carry such threat into effect, thereby obstructing the order of the proceedings, and endeavoring to bring the same into contempt; and "whereas it further appears that said defendant habitually attends before said examiner carrying a pistol, "_it is ordered_, that the marshal of this court take such measures as may be necessary to disarm the said defendant, and keep her disarmed, and under strict surveillance, while she is attending the examination of witnesses before said examiner, and whenever attending in court, and that a deputy be detailed for that purpose." [ ] senator stewart, who was one of the counsel against her in the suit. chapter v. decision of the case in the federal court. the taking of the testimony being completed, the cause was set for a hearing on september th. after an argument of thirteen days the cause was submitted on the th of september, . on the th of december, , the court rendered its decision, that the alleged declaration of marriage and the letters purporting to have been addressed "my dear wife" were false and forged, and that the contemporaneous conduct of the parties, and particularly of the defendant, was altogether incompatible with the claim of marriage or the existence of any such declaration or letters. a decree was ordered accordingly, and the court made the following further order: "as the case was argued and submitted during the lifetime of the complainant, who has since deceased, the decree will be entered nunc pro tunc, as of september , , the date of its submission and a day prior to the decease of the complainant." the opinion of the court was delivered by judge deady, of the united states district court of oregon, who sat in the case with judge sawyer, the circuit judge. of the old negress under whose direction the fraudulent marriage contract had been manufactured, and under whose advice and direction the suit in the state court had been brought, the judge said: "mary e. pleasant, better known as mammie pleasant, is a conspicuous and important figure in this affair; without her it would probably never have been brought before the public. she appears to be a shrewd old negress of some means. "in my judgment this case and the forgeries and perjuries committed in its support had their origin largely in the brain of this scheming, trafficking, crafty old woman." he found that the declaration of marriage was forged by the defendant by writing the declaration over a simulated signature, and that her claim to be the wife of the plaintiff was wholly false, and had been put forth by her and her co-conspirators for no other purpose than to despoil the plaintiff of his property. judge sawyer also filed an opinion in the case, in which he declared that the weight of the evidence satisfactorily established the forgery and the fraudulent character of the instrument in question. chapter vi. the marriage of terry and miss hill. sarah althea now received a powerful recruit, who enlisted for the war. this was one of her lawyers, david s. terry, whom she married on the th day of january, , twelve days after the decision of the circuit court against her, and which he had heard announced, but before a decree had been entered in conformity with the decision. terry seemed willing to take the chances that the decree of the superior court would not be reversed in the supreme court of the state. the decision of the federal court he affected to utterly disregard. it was estimated that not less than $ , , would be sarah althea's share of sharon's estate, in the event of success in her suit. she would be a rich widow if it could be established that she had ever been a wife. she had quarreled with tyler, her principal attorney, long before, and accused him of failing in his professional duty. if she could escape from the obligations of her contract with him, she would not be compelled to divide with him the hoped-for $ , , . although judge terry had been chief justice of the supreme court of california, the crimes of perjury and forgery and subornation of perjury which had been loudly charged in judge sullivan's opinion against the woman, in whose favor he gave judgment, seemed to him but trifles. strangely enough, neither he nor sarah althea ever uttered a word of resentment against him on account of these charges. the marriage of terry with this desperate woman in the face of an adverse decision of the circuit court, by which jurisdiction was first exercised upon the subject-matter, was notice to all concerned that, by all the methods known to him, he would endeavor to win her cause, which he thus made his own. he took the position that any denial of sarah althea's pretense to have been the wife of sharon was an insult to her, which could only be atoned by the blood of the person who made it. this was the proclamation of a vendetta against all who should attempt to defend the heirs of mr. sharon in the possession of that half of their inheritance which he and sarah althea had marked for their own. his subsequent course showed that he relied upon the power of intimidation to secure success. he was a man of powerful frame, accustomed all his life to the use of weapons, and known to be always armed with a knife. he had the reputation of being a fighting man. he had decided that sarah althea had been the lawful wife of sharon, and that therefore he had married a virtuous widow. he had not often been crossed in his purpose or been resisted when he had once taken a position. by his marriage he virtually served notice on the judges of the supreme court of the state, before whom the appeal was then pending, that he would not tamely submit to be by them proclaimed to be the dupe of the discarded woman of another. it was well understood that he intended to hold them personally responsible to him for any decision that would have that effect. these intentions were said to have been made known to them. his rule in life, as once stated by himself, was to compel acquiescence in his will by threats of violence, and known readiness to carry his threats into effect. this, he said, would in most cases insure the desired result. he counted on men's reluctance to engage in personal difficulties with him. he believed in the persuasiveness of ruffianism. whether he thought his marriage would frighten judges sawyer and deady, who had just rendered their decision in the united states circuit court, and cause them either to modify the terms of the decree not yet entered, or deter them from its enforcement, is a matter of uncertainty. he was of the ultra state's-rights school and had great faith in the power of the courts of a state when arrayed against those of the united states. he had always denied the jurisdiction of the latter in the case of sarah althea, both as to the subject-matter and as to the parties. he refused to see any difference between a suit for a divorce and a suit to cancel a forged paper, which, if allowed to pass as genuine, would entitle its holder to another's property. he persisted in denying that sharon had been a citizen of nevada during his lifetime, and ignored the determination of this question by the circuit court. but if judge terry had counted on the fears of the united states judges of california he had reckoned too boldly, for on the th of january, , eight days after his marriage, the decree of the circuit court was formally entered. this decree adjudged the alleged marriage contract of august , , false, counterfeited, fabricated, and fraudulent, and ordered that it be surrendered to be cancelled and annulled, and be kept in the custody of the clerk, subject to the further order of the court; and sarah althea hill and her representatives were perpetually enjoined from alleging the genuineness or the validity of the instrument, or making use of it in any way to support her claims as wife of the complainant. the execution of this decree would, of course, put an end to sarah althea's claim, the hope of maintaining which was supposed to have been the motive of the marriage. to defeat its execution then became the sole object of terry's life. this he hoped to do by antagonizing it with a favorable decision of the supreme court of the state, on the appeals pending therein. it has heretofore been stated that the case against sharon in the superior court was removed from the calendar on the th day of november, , because of the defendant's death on the previous day. the th of february following, upon proper application, the court ordered the substitution of frederick w. sharon as executor and sole defendant in the suit in the place of william sharon, deceased. the motion for a new trial was argued on the th of the following may, and held under advisement until the th of the following october, when it was denied. from this order of denial an appeal was taken by the defendant. it must be borne in mind that there were now two appeals in this case to the supreme court of the state from the superior court. one taken on the th of february, , from the judgment of judge sullivan, and from his order for alimony and fees, and the other an appeal taken october , , from the order denying the new trial in the cause. on the st of january, , the supreme court rendered its decision, affirming the judgment of the superior court in favor of sarah althea, but reversing the order made by judge sullivan granting counsel fees, and reducing the allowance for alimony from $ , per month to $ . four judges concurred in this decision, namely, mckinstry, searles, patterson, and temple. three judges dissented, to wit, thornton, sharpstein, and mcfarland. there then remained pending in the same court the appeal from the order granting a new trial. it was reasonable that terry should expect a favorable decision on this appeal, as soon as it could be reached. this accomplished, he and sarah althea thought to enter upon the enjoyment of the great prize for which they had contended with such desperate energy. terry had always regarded the decree of the circuit court as a mere harmless expression of opinion, which there would be no attempt to enforce, and which the state courts would wholly ignore. whatever force it might finally be given by the supreme court of the united states appeared to him a question far in the future, for he supposed he had taken an appeal from the decree. this attempted appeal was found to be without effect, because when ordered the suit had abated by the death of the plaintiff, and no appeal could be taken until the case was revived by order of the court. this order was never applied for. the two years within which an appeal could have been taken expired january , . the decree of the circuit court had therefore become final at that time. chapter vii. the bill of revivor. it was at this stage of the prolonged legal controversy that justice field first sat in the case. the executor of the sharon estate, on the th of march, , filed a bill of revivor in the united states circuit court. this was a suit to revive the case of sharon vs. hill, that its decree might stand in the same condition and plight in which it was at the time of its entry, which, being _nunc pro tunc_, was of the same effect as if the entry had preceded the death of mr. sharon, the case having been argued and submitted during his lifetime. the decree directed the surrender and cancellation of the forged marriage certificate, and perpetually enjoined sarah althea hill, and her representatives, from alleging the genuineness or validity of that instrument, or making any use of the same in evidence, or otherwise to support any rights claimed under it. the necessity for this suit was the fact that the forged paper had not been surrendered for cancellation, as ordered by the decree, and the plaintiff feared that the defendant would claim and seek to enforce property rights as wife of the plaintiff, by authority of the alleged written declaration of marriage, under the decree of another court, essentially founded thereupon, contrary to the perpetual injunction ordered by the circuit court. to this suit, david s. terry, as husband of the defendant, was made a party. it merely asked the circuit court to place its own decree in a position to be executed, and thereby prevent the spoliation of the sharon estate, under the authority of the decree of judge sullivan in the suit in the state court subsequently commenced. a demurrer was filed by the defendant. it was argued in july before justice field, judge sawyer, and district judge sabin. it was overruled on the d of september, when the court ordered that the original suit of sharon against hill, and the final decree therein, stand revived in the name of frederick w. sharon as executor, and that the said suit and the proceedings therein be in the same plight and condition they were in at the death of william sharon, so as to give the executor, complainant as aforesaid, the full benefit, rights, and protection of the decree, and full power to enforce the same against the defendants, and each of them, at all times and in all places, and in all particulars. the opinion in the case was delivered by justice field. during its delivery he was interrupted by mrs. terry with violent and abusive language, and an attempt by her to take a pistol from a satchel which she held in her hand. her removal from the court-room by order of justice field; her husband's assault upon the marshal with a deadly weapon for executing the order, and the imprisonment of both the terrys for contempt of court, will be more particularly narrated hereafter. the commencement of the proceedings for the revival of the suit was well calculated to alarm the terrys. they saw that the decree in the circuit court was to be relied upon for something more than its mere moral effect. their feeling towards judges sawyer and deady was one of most intense hatred. judge deady was at his home in oregon, beyond the reach of physical violence at their hands, but judge sawyer was in san francisco attending to his official duties. upon him they took an occasion to vent their wrath. it was on the th of august, , after the commencement of the revivor proceedings, but before the decision. judge sawyer was returning in the railway train to san francisco from los angeles, where he had been to hold court. judge terry and his wife took the same train at fresno. judge sawyer occupied a seat near the center of the sleeping-car, and judge and mrs. terry took the last section of the car, behind him, and on the same side. a few minutes after leaving fresno, mrs. terry walked down the aisle to a point just beyond judge sawyer, and turning around with an ugly glare at him, hissed out, in a spiteful and contemptuous tone: "are you here?" to which the judge quietly replied: "yes, madam," and bowed. she then resumed her seat. a few minutes after, judge terry walked down the aisle about the same distance, looked over into the end section at the front of the car, and finding it vacant, went back, got a small hand-bag, and returned and seated himself in the front section, with his back to the engine and facing judge sawyer. mrs. terry did not (at the moment) accompany him. a few minutes later she walked rapidly down the passage, and as she passed judge sawyer, seized hold of his hair at the back of his head, gave it a spiteful twitch and passed quickly on, before he could fully realize what had occurred. after passing she turned a vicious glance upon him, which was continued for some time after taking her seat by the side of her husband. a passenger heard mrs. terry say to her husband: "i will give him a taste of what he will get bye and bye." judge terry was heard to remark: "the best thing to do with him would be to take him down the bay and drown him." upon the arrival of judge sawyer at san francisco, he entered a street car, and was followed by the terrys. mrs. terry took a third seat from him, and seeing him, said: "what, are you in this car too?" when the terrys left the car mrs. terry addressed some remark to judge sawyer in a spiteful tone, and repeated it. he said he did not quite catch it, but it was something like this: "we will meet again. this is not the end of it." persons at all familiar with the tricks of those who seek human life, and still contrive to keep out of the clutches of the law, will see in the scene above recited an attempt to provoke an altercation which would have been fatal to judge sawyer, if he had resented the indignity put upon him by mrs. terry, by even so much as a word. this could easily have been made the pretext for an altercation between the two men, in which the result would not have been doubtful. there could have been no proof that judge terry knew of his wife's intention to insult and assault judge sawyer as she passed him, nor could it have been proven that he knew she had done so. a remonstrance from sawyer could easily have been construed by terry, upon the statement of his wife, into an original, unprovoked, and aggressive affront. it is now, however, certain that the killing of judge sawyer was not at that time intended. it may have been, to use mrs. terry's words, "to give him a taste of what he would get bye and bye," if he should dare to render the decision in the revivor case adversely to them. this incident has been here introduced and dwelt upon for the purpose of showing the tactics resorted to by the terrys during this litigation, and the methods by which they sought to control decisions. it is entirely probable that they had hopes of intimidating the federal judges, as many believed some state judges had been, and that thus they might "from the nettle danger, pluck the flower safety." we have seen that they reckoned without their host. we shall now see to what extent their rage carried them on the day that the decision was rendered reviving the decree. chapter viii. the terrys imprisoned for contempt. on the day after judge sawyer's return from los angeles he called the marshal to his chambers, and notified him of mrs. terry's violent conduct towards him on the train in the presence of her husband, so that he might take such steps as he thought proper to keep order when they came into the court-building, and see that there was no disturbance in the court-room. on the morning of september d, the marshal was again summoned to judge sawyer's room, where judge field was also present. they informed him that the decision in the revival suit would be rendered that day, and they desired him to be present, with a sufficient number of bailiffs to keep order in court. they told him that judging from the action of the terrys on the train, and the threats they were making so publicly, and which were being constantly published in the newspapers, it was not impossible that they might create a disturbance in the court-room. when the court opened that day, it found terry and his wife already seated within the bar, and immediately in front of the judges. as it afterward appeared, they were both on a war-footing, he being armed with a concealed bowie-knife, and she with a -calibre revolver, which she carried in a small hand-bag, five of its chambers being loaded. the judges took their seats on the bench, and very shortly afterward justice field, who presided, began reading the opinion of the court in which both of his associates concurred. a printed pamphlet copy of this opinion contains pages, of which are taken up with a statement of the case. the opinion commences at page and covers the remaining pages of the pamphlet. from time to time, as the reading of the opinion progressed, mrs. terry, who was greatly excited, was observed to unclasp and clasp again the fastening of her satchel which contained her pistol, as if to be sure she could do so at any desired moment. at the th page of the opinion the following passage occurs: "the original decree is not self-executing in all its parts; it may be questioned whether any steps could be taken for its enforcement, until it was revived, but if this were otherwise, the surrender of the alleged marriage contract for cancellation, as ordered, requires affirmative action on the part of the defendant. the relief granted is not complete until such surrender is made. when the decree pronounced the instrument a forgery, not only had the plaintiff the right that it should thus be put out of the way of being used in the future to his embarrassment and the embarrassment of his estate, but public justice required that it should be formally cancelled, that it might constantly bear on its face the evidence of its bad character, whenever or wherever presented or appealed to." when mrs. terry heard the above words concerning the surrender of the alleged marriage contract for cancellation, she first endeavored for a few seconds, but unsuccessfully, to open the satchel containing her pistol. for some reason the catch refused to yield. then, rising to her feet, and placing the satchel before her on the table, she addressed the presiding justice, saying: "are you going to make me give up my marriage contract?" justice field said, "be seated, madam." she repeated her question: "are you going to take the responsibility of ordering me to deliver up that contract?" she was again ordered to resume her seat. at this she commenced raving loudly and violently at the justice in coarse terms, using such phrases as these: "mr. justice field, how much have you been bought for? everybody knows that you have been bought; that this is a paid decision." "how big was the sack?" "how much have you been paid for the decision?" "you have been bought by newland's coin; everybody knows you were sent out here by the newlands to make this decision." "every one of you there have been paid for this decision." at the commencement of this tirade, and after her refusal to desist when twice ordered to do so, the presiding justice directed the marshal to remove her from the court-room. she said defiantly: "i will not be removed from the court-room; you dare not remove me from the court-room." judge terry made no sign of remonstrance with her, had not endeavored to restrain her, but had, on the contrary, been seen to nod approvingly to her, as if assenting to something she had said to him just before she sprang to her feet. the instant, however, the court directed her removal from the room, of which she had thus taken temporary possession, to the total suspension of the court proceedings, his soul was "in arms and eager for the fray." as the marshal moved toward the offending woman, he rose from his seat, under great excitement, exclaiming, among other things, "no living man shall touch my wife!" or words of that import, and dealt the marshal a violent blow in the face,[ ] breaking one of his front teeth. he then unbuttoned his coat and thrust his hand under his vest, where his bowie-knife was kept, apparently for the purpose of drawing it, when he was seized by persons present, his hands held from drawing his weapon, and he himself forced down on his back. the marshal, with the assistance of a deputy, then removed mrs. terry from the court-room, she struggling, screaming, kicking, striking, and scratching them as she went, and pouring out imprecations upon judges field and sawyer, denouncing them as "corrupt scoundrels," and declaring she would kill them both. she was taken from the room into the main corridor, thence into the marshal's business office, and then into an inner room of his office. she did not cease struggling when she reached that room, but continued her frantic abuse. while mrs. terry was being removed from the court-room terry was held down by several strong men. he was thus, by force alone, prevented from drawing his knife on the marshal. while thus held he gave vent to coarse and denunciatory language against the officers. when mrs. terry was removed from the court-room he was allowed to rise. he at once made a swift rush for the door leading to the corridor on which was the marshal's office. as he was about leaving the room or immediately after stepping out of it, he succeeded in drawing his knife. as he crossed the threshold he brandished the knife above his head, saying, "i am going to my wife." there was a terrified cry from the bystanders: "he has got a knife." his arms were then seized by a deputy marshal and others present, to prevent him from using it, and a desperate struggle ensued. four persons held on to the arms and body of terry, and one presented a pistol to his head, threatening at the same time to shoot him if he did not give up the knife. to these threats terry paid no attention, but held on to the knife, actually passing it during the struggle from one hand to the other. david neagle then seized the handle of the knife and commenced drawing it through terry's hand, when terry relinquished it. the whole scene was one of the wildest alarm and confusion. to use the language of one of the witnesses, "terry's conduct throughout this affair was most violent. he acted like a demon, and all the time while in the corridor he used loud and violent language, which could be plainly heard in the court-room, and, in fact, throughout the building," applying to the officers vile epithets, and threatening to cut their hearts out if they did not let him go to his wife. the knife which terry drew, and which he afterwards designated as "a small sheath knife," was, including the handle, nine and a quarter inches long, the blade being five inches, having a sharp point, and is commonly called a bowie-knife. he himself afterwards represented that he drew this knife, not "because he wanted to hurt anybody, but because he wanted to force his way into the marshal's office." the presiding justice had read only a small portion of the opinion of the court when he was interrupted by the boisterous and violent proceedings described. on their conclusion, by the arrest of the terrys, he proceeded with the reading of the opinion, which occupied nearly a whole hour. the justices, without adjourning the court, then retired to the adjoining chambers of the presiding justice for deliberation. they there considered of the action which should be taken against the terrys for their disorderly and contemptuous conduct. after determining what that should be they returned to the court-room and announced it. for their conduct and resistance to the execution of the order of the court both were adjudged guilty of contempt and ordered, as a punishment, to be imprisoned in the county jail, terry for six months and his wife for thirty days. when terry heard of the order, and the commitment was read to him, he said, "judge field" (applying to him a coarse and vituperative epithet) "thinks when i get out, when i get released from jail, that he will be in washington, but i will meet him when he comes back next year, and it will not be a very pleasant meeting for him." mrs. terry said that she would kill both judges field and sawyer, and repeated the threat several times. while the prisoners were being taken to jail, mrs. terry said to her husband, referring to judge sawyer: "i wooled him good on the train coming from los angeles. he has never told that." to which he replied: "he will not tell that; that was too good." she said she could have shot judge field and killed him from where she stood in the court-room, but that she was not ready then to kill the old villain; she wanted him to live longer. while crossing the ferry to oakland she said, "i could have killed judges field and sawyer; i could shoot either one of them, and you would not find a judge or a jury in the state would convict me." she repeated this, and terry answered, saying: "no, you could not find a jury that would convict any one for killing the old villain," referring to judge field. the jailer at alameda testified that one day mrs. terry showed him the sheath of her husband's knife, saying: "that is the sheath of that big bowie-knife that the judge drew. don't you think it is a large knife?" judge terry was present, and laughed and said: "yes; i always carry that," meaning the knife. to j.h. o'brien, a well-known citizen, judge terry said that "after he got out of jail he would horsewhip judge field. he said he did not think he would ever return to california, but this earth was not large enough to keep him from finding judge field, and horsewhipping him," and said, "if he resents it i will kill him." to a newspaper writer, thomas t. williams, he said: "judge field would not dare to come out to the pacific coast, and he would have a settlement with him if he did come." j.m. shannon, a friend of terry's for thirty years, testified that while the terrys were in jail he called there with mr. wigginton, formerly a member of congress from california; that during the call mrs. terry said something to her husband to the effect that they could not do anything at all in regard to it. he said: "yes, we can." she asked what they could do. he said: "i can kill old sawyer, damn him. i will kill old sawyer, and then the president will have to appoint some one in his place." in saying this "he brought his fist down hard and seemed to be mad." ex-congressman wigginton also testified concerning this visit to terry. it occurred soon after the commitment. he went to arrange about some case in which he and terry were counsel on opposite sides. he told terry of a rumor that there was some old grudge or difference between him and judge field. terry said there was none he knew of. he said: "'when judge field's name was mentioned as candidate for president of the united states,'--i think he said,--'when i was a delegate to the convention, it being supposed that i had certain influence with a certain political element, that also had delegates in the convention, some friend or friends'--i will not be sure whether it was friend or friends--'of judge field came to me and asked for my influence with these delegates to secure the nomination for judge field. my answer'--i am now stating the language as near as i can of judge terry's--'my answer was, 'no, i have no influence with that element.' i understood it to be the workingmen's delegates. i could not control these delegates, and if i could would not control them for field.' he said: 'that may have caused some alienation, but i do not know that field knew that.'" mr. wigginton said that mrs. terry asked her husband what he could do, and he replied, showing more feeling than he had before: "do? i can kill old sawyer, and by god, if necessary, i will, and the president will then have to appoint some one else in his place." [ ] one of the witnesses stated that terry also said, "get a written order from the court." chapter ix. terry's petition to the circuit court for a release--its refusal--he appeals to the supreme court--unanimous decision against him there--president cleveland refuses to pardon him--falsehoods refuted. on the th of september terry petitioned the circuit court for a revocation of the order of imprisonment in his case, and in support thereof made the following statement under oath: "that when petitioner's wife, the said sarah a. terry, first arose from her seat, and before she uttered a word, your petitioner used every effort in his power to cause her to resume her seat and remain quiet, and he did nothing to encourage her in her acts of indiscretion; when this court made the order that petitioner's wife be removed from the court-room your petitioner arose from his seat with the intention and purpose of himself removing her from the court-room quietly and peaceably, and that he had no intention or design of obstructing or preventing the execution of said order of the court; that he never struck or offered to strike the united states marshal until the said marshal had assaulted himself, and had in his presence violently, and as he believed unnecessarily, assaulted the petitioner's wife. "your petitioner most solemnly swears that he neither drew nor attempted to draw any deadly weapon of any kind whatever in said court-room, and that he did not assault or attempt to assault the u.s. marshal with any deadly weapon in said court-room or elsewhere. and in this connection he respectfully represents that after he left said court-room he heard loud talking in one of the rooms of the u.s. marshal, and among the voices proceeding therefrom he recognized that of his wife, and he thereupon attempted to force his way into said room through the main office of the united states marshal; the door of the room was blocked by such a crowd of men that the door could not be closed; that your petitioner then, for the first time, drew from inside his vest a small sheath-knife, at the same time saying to those standing in his way in said door, that he did not want to hurt any one; that all he wanted was to get into the room where his wife was. the crowd then parted and your petitioner entered the doorway, and there saw a united states deputy marshal with a revolver in his hand pointed to the ceiling of the room. some one then said: 'let him in if he will give up his knife,' and your petitioner immediately released hold of the knife to some one standing by. "in none of these transactions did your petitioner have the slightest idea of showing any disrespect to this honorable court or any of the judges thereof. "that he lost his temper, he respectfully submits was a natural consequence of himself being assaulted when he was making an honest effort to peaceably and quietly enforce the order of the court, so as avoid a scandalous scene, and of his seeing his wife so unnecessarily assaulted in his presence." it will be observed that terry, in his petition, contradicts the facts recited in the orders for the commitment of himself and his wife. these orders were made by justice field. circuit judge sawyer, and district judge sabin from the district of nevada, who did not depend upon the testimony of others for information as to the facts in the case, but were, themselves, eye-witnesses and spoke from personal observation and absolute knowledge. in passing upon terry's petition, these judges, speaking through justice field, who delivered the opinion of the court, bore testimony to a more particular account of the conduct of terry and his wife than had been given in the order for the commitment. as the scene has already been described at length, this portion of the opinion of the court would be a mere repetition, and is therefore omitted. after reciting the facts, justice field referred to the gravity of terry's offense in the following terms: "the misbehavior of the defendant, david s. terry, in the presence of the court, in the court-room, and in the corridor, which was near thereto, and in one of which (and it matters not which) he drew his bowie-knife, and brandished it with threats against the deputy of the marshal and others aiding him, is sufficient of itself to justify the punishment imposed. but, great as this offense was, the forcible resistance offered to the marshal in his attempt to execute the order of the court, and beating him, was a far greater and more serious affair. the resistance and beating was the highest possible indignity to the government. when the flag of the country is fired upon and insulted, it is not the injury to the bunting, the linen, or silk on which the stars and stripes are stamped which startles and arouses the country. it is the indignity and insult to the emblem of the nation's majesty which stirs every heart, and makes every patriot eager to resent them. so, the forcible resistance to an officer of the united states in the execution of the process, orders, and judgments of their courts is in like manner an indignity and insult to the power and authority of the government which can neither be overlooked nor extenuated." after reviewing terry's statement, justice field said: "we have read this petition with great surprise at its omissions and misstatements. as to what occurred under our immediate observation, its statements do not accord with the facts as we saw them; as to what occurred at the further end of the room and in the corridor, its statements are directly opposed to the concurring accounts of the officers of the court and parties present, whose position was such as to preclude error in their observations. according to the sworn statement of the marshal, which accords with our own observations, so far from having struck or assaulted terry, he had not even laid his hands upon him when the violent blow in the face was received. and it is clearly beyond controversy that terry never voluntarily surrendered his bowie-knife, and that it was wrenched from him only after a violent struggle. "we can only account for his misstatement of facts as they were seen by several witnesses, by supposing that he was in such a rage at the time that he lost command of himself, and does not well remember what he then did, or what he then said. some judgment as to the weight this statement should receive, independently of the incontrovertible facts at variance with it, may be formed from his speaking of the deadly bowie-knife he drew as 'a small sheath-knife,' and of the shameless language and conduct of his wife as 'her acts of indiscretion.' "no one can believe that he thrust his hand under his vest where his bowie-knife was carried without intending to draw it. to believe that he placed his right hand there for any other purpose--such as to rest it after the violent fatigue of the blow in the marshal's face or to smooth down his ruffled linen--would be childish credulity. "but even his own statement admits the assaulting of the marshal, who was endeavoring to enforce the order of the court, and his subsequently drawing a knife to force his way into the room where the marshal had removed his wife. yet he offers no apology for his conduct; expresses no regret for what he did, and makes no reference to his violent and vituperative language against the judges and officers of the court, while under arrest, which is detailed in the affidavits filed." in refusing to grant the petition the court said: "there is nothing in his petition which would justify any remission of the imprisonment. the law imputes an attempt to accomplish the natural result of one's acts, and when these acts are of a criminal nature it will not accept, against such implication, the denial of the transgressor. no one would be safe if the denial of a wrongful or criminal act would suffice to release the violator of the law from the punishment due his offenses." on september , , after the announcement of the opinion of the court by mr. justice field denying the petition of d.s. terry for a revocation of the order committing him for contempt, mr. terry made public a correspondence between himself and judge solomon heydenfeldt, which explains itself, and is as follows: "my dear terry: "the papers which our friend stanley sends you will explain what we are trying to do. i wish to see field to-morrow and sound his disposition, and if it seems advisable i will present our petition. but in order to be effective, and perhaps successful, i wish to feel assured and be able to give the assurance that failure to agree will not be followed by any attempt on your part to break the peace either by action or demonstration. i know that you would never compromise me in any such manner, but it will give me the power to make an emphatic assertion to that effect and that ought to help. "please answer promptly. "s. heydenfeldt." the reply of judge terry is as follows: "dear heydenfeldt: "your letter was handed me last evening. i do not expect a favorable result from any application to the circuit court, and i have very reluctantly consented that an application be made to judge field, who will probably wish to pay me for my refusal to aid his presidential aspirations four years ago. i had a conversation with garber on saturday last in which i told him if i was released i would seek no personal satisfaction for what had passed. you may say as emphatically as you wish that i do not contemplate breaking the peace, and that, so far from seeking, i will avoid meeting any of the parties concerned. i will not promise that i will refrain from denouncing the decision or its authors. i believe that the decision was purchased and paid for with coin from the sharon estate, and i would stay here for ten years before i would say that i did not so believe. if the judges of the circuit court would do what is right they would revoke the order imprisoning my wife. she certainly was in contempt of court, but that great provocation was given by going outside the record to smirch her character ought to be taken into consideration in mitigation of the sentence. field, when a legislator, thought that no court should be allowed to punish for contempt by imprisonment for a longer period than five days. my wife has already been in prison double that time for words spoken under very great provocation. no matter what the result, i propose to stay here until my wife is dismissed. "yours truly, "d.s. terry." in the opinion of the court, referred to in the foregoing letter as "smirching the character" of mrs. terry, there was nothing said reflecting upon her, except what was contained in quotations from the opinion of judge sullivan of the state court in the divorce case of sharon vs. hill in her favor. these quotations commenced at page of the pamphlet copy of justice field's opinion, when less than three pages remained to be read. it was at page of the pamphlet that justice field was reading when mrs. terry interrupted him and was removed from the court-room. after her removal he resumed the reading of the opinion, and only after reading pages, occupying nearly an hour, did he reach the quotations in which judge sullivan expressed his own opinion that mrs. terry had committed perjury several times in his court. the reading of them could not possibly have furnished her any provocation for her conduct. she had then been removed from the court-room more than an hour. besides, if they "smirched" her character, why did she submit to them complacently when they were originally uttered from the bench by judge sullivan in his opinion rendered in her favor? justice field, in what he was reading that so incensed mrs. terry, was simply stating the effect of a decree previously rendered in a case, in the trial of which he had taken no part. he was stating the law as to the rights established by that decree. the efforts then made by terry, and subsequently by his friends and counsel, to make it appear that his assault upon the marshal and defiance of the court were caused by his righteous indignation at assaults made by judge field upon his wife's character were puerile, because based on a falsehood. the best proof of this is the opinion itself. judge terry next applied to the supreme court of the united states for a writ of habeas corpus. in that application he declared that on the th day of september, , he addressed to the circuit court a petition duly verified by his oath, and then stated the petition for release above quoted. yet in a communication published in the _san francisco examiner_ of october d he solemnly declared that this very petition was not filed by any one on his behalf. after full argument by the supreme court the writ was denied, november , , by an unanimous court, justice field, of course, not sitting in the case. justice harlan delivered the opinion of the court. chapter x. president cleveland refuses to pardon terry--false statements of terry refuted. before the petition for habeas corpus was presented to the supreme court of the united states, judge terry's friends made a strenuous effort to secure his pardon from president cleveland. the president declined to interfere. in his efforts in that direction judge terry made gross misrepresentations as to judge field's relations with himself, which were fully refuted by judge heydenfeldt, the very witness he had invoked. judge heydenfeldt had been an associate of judge terry on the state supreme bench. these representations and their refutation are here given as a necessary element in this narrative. five days after he had been imprisoned, to wit, september , terry wrote a letter to his friend zachariah montgomery at washington, then assistant attorney-general for the interior department under the cleveland administration, in which he asked his aid to obtain a pardon from the president. knowing that it would be useless to ask this upon the record of his conduct as shown by the order for his commitment, he resorted to the desperate expedient of endeavoring to overcome that record by putting his own oath to a false statement of the facts, against the statement of the three judges, made on their own knowledge, as eye-witnesses, and supported by the affidavits of court officers, lawyers, and spectators. to montgomery he wrote: "i have made a plain statement of the facts which occurred in the court, and upon that propose to ask the intervention of the president, and i request you to see the president; tell him all you know of me, and what degree of credit should be given to a statement by me upon my own knowledge of the facts. when you read the statement i have made you will be satisfied that the statement in the order of the court is false." he then proceeded to tell his story as he told it in his petition to the circuit court. his false representations as to the assault he made upon the marshal, and as to his alleged provocation therefor, were puerile in the extreme. he stood alone in his declaration that the marshal first assaulted him, while the three judges and a dozen witnesses declared the very opposite. his denial that he had assaulted the marshal with a deadly weapon was contradicted by the judges and others, who said that they saw him attempt to draw a knife in the court-room, which attempt, followed up as it was continually until successful, constituted an assault with that weapon. to call his bowie-knife "a small sheath-knife," and the outrageous conduct of his wife "acts of indiscretion;" to pretend that he lost his temper because he was assaulted "while making an honest effort to peaceably and quietly enforce the order of the court," and finally to pretend that his wife had been "unnecessarily assaulted" in his presence, was all not only false, but simply absurd and ridiculous. he said: "i don't want to stay in prison six months for an offense of which i am not guilty. there is no way left except to appeal to the president. the record of a court imports absolute verity, so i am not allowed to show that the record of the circuit court is absolutely false. if you can help me in this matter you will confer on me the greatest possible favor." he told montgomery that it had been suggested to him that one reason for field's conduct was his refusal to support the latter's aspirations for the presidency. in this connection he made the following statement: "in march, , i received a note from my friend judge heydenfeldt, saying that he wished to see me on important business, and asking me to call at his office. i did so, and he informed me that he had received a letter from judge field, who was confident that if he could get the vote of california in the democratic national convention, which would assemble that year, he would be nominated for president and would be elected as, with the influence of his family and their connection, that he would certainly carry new york; that judge field further said that a congressman from california and other of his friends had said that if i would aid him, i could give him the california delegation; that he understood i wanted official recognition as, because of my duel years ago, i was under a cloud; that if i would aid him, i should have anything i desired." it will be observed that he here positively states that judge heydenfeldt told him he had received a letter from judge field, asking terry's aid and promising, for it, a reward. judge heydenfeldt, in a letter dated august , , to the _san francisco examiner_, branded terry's assertion as false. the letter to the _examiner_ is as follows: "the statement made in to-day's _examiner_ in reference to the alleged letter from justice field to me, derived, as is stated by mr. ashe, from a conversation with judge terry, is utterly devoid of truth. "i had at one time, many years ago, a letter from justice field, in which he stated that he was going to devote his leisure to preparing for circulation among his friends his reminiscences, and, referring to those of early california times, he requested me to obtain from judge terry his, terry's, version of the terry-broderick duel, in order that his account of it might be accurate. as soon as i received this letter, i wrote to judge terry, informing him of judge field's wishes, and recommending him to comply, as coming, as the account would, from friendly hands, it would put him correct upon the record, and would be in a form which would endure as long as necessary for his reputation on that subject. "i received no answer from judge terry, but meeting him, some weeks after, on the street in this city, he excused himself, saying that he had been very busy, and adding that it was unnecessary for him to furnish a version of the duel, as the published and accepted version was correct. "the letter to me from justice field above referred to is the only letter from justice field to me in which judge terry's name was ever mentioned, and, with the exception of the above-mentioned street conversation, judge field was never the subject of conversation between judge terry and myself, from the time i left the bench, on the st of january, , up to the time of terry's death. "as to the statement that during terry's trouble with the sharon case, i offered terry the use of field's letter, it results from what i have above stated--that it is a vile falsehood, whoever may be responsible for it. "i had no such letter, and consequently could have made no such offer. "san francisco, august , . "s. heydenfeldt." judge heydenfeldt subsequently addressed the following letter to judge field: "san francisco, _august , _. "my dear judge: i received yours of yesterday with the extract from the washington _post_ of the d inst., containing a copy of a letter from the late judge terry to the hon. zack montgomery. "the statement in that letter of a conversation between terry and myself in reference to you is untrue. the only conversation terry and i ever had in relation to you was, as heretofore stated, in regard to a request from you to me to get from terry his version of the terry-broderick duel, to be used in your intended reminiscences. "i do not see how terry could have made such an erroneous statement, unless, possibly, he deemed that application as an advance made by you towards obtaining his political friendship, and upon that built up a theory, which he moulded into the fancy written by him in the montgomery letter. "in all of our correspondence, kept up from time to time since your first removal to washington down to the present, no letter of yours contained a request to obtain the political support of any one. "i remain, dear judge, very truly yours, "s. heydenfeldt. "hon. stephen j. field, "palace hotel, san francisco." at the hearing of the neagle case, justice field was asked if he had been informed of any statements made by judge terry of ill feeling existing between them before the latter's imprisonment for contempt. he replied: "yes, sir. since that time i have seen a letter purporting to come from terry to zack montgomery, published in washington, in which he ascribed my action to personal hostility, because he had not supported me in some political aspiration. there is not one particle of truth in that statement. it is a pure invention. in support of his statement he referred to a letter received or an interview had with judge heydenfeldt. there is not the slightest foundation for it, and i cannot understand it, except that the man seems to me to have been all changed in the last few years, and he did not hesitate to assert that the official actions of others were governed by improper considerations. i saw charges made by him against judges of the state courts; that they had been corrupt in their decisions against him; that they had been bought. that was the common assertion made by him when decisions were rendered against him." he then referred to the above letters of judge heydenfeldt, declaring terry's assertion to be false. it should be borne in mind that terry's letter to montgomery was written september th. it directly contradicts what he had said to ex-congressman wigginton on the th or th of the same month. to that gentleman he declared that he knew of no "old grudge or little difference" between himself and judge field. he said he had declined to support the latter for the presidency, and added: "that may have caused some alienation, but i do not know that judge field knew that." in his insane rage terry did not realize how absurd it was to expect people to believe that judge sawyer and judge sabin, both republicans, had participated in putting him in jail, to punish him for not having supported justice field for the presidency in a national democratic convention years before. perhaps terry thought his reference to the fact that judge field's name had been previously used in democratic conventions, in connection with the presidency, might have some effect upon president cleveland's mind. this letter was not forwarded to zachariah montgomery until a week after it was written. he then stated in a postscript that he had delayed sending it upon the advice of his attorneys pending the application to the circuit court for his release. again he charged that the judges had made a false record against him, and that evidence would be presented to the president to show it. terry and his friends brought all the pressure to bear that they could command, but the president refused his petition for a pardon, and, as already shown, the supreme court unanimously decided that his imprisonment for contempt had been lawfully ordered. he was therefore obliged to serve out his time. mrs. terry served her thirty days in jail, and was released on the d of october. there is a federal statute that provides for the reduction of a term of imprisonment of criminals for good behavior. judge terry sought to have this statute applied in his case, but without success. the circuit court held that the law relates to state penitentiaries, and not to jails, and that the system of credits could not be applied to prisoners in jail. besides this, the credits in any case are counted by the year, and not by days or months. the law specifies that prisoners in state prisons are entitled to so many months' time for the first year, and so many for each subsequent year. as terry's sentence ran for six months, the court said the law could not apply. he consequently remained in jail until the d of march, . chapter xi. terry's continued threats to kill justice field--return of the latter to california in . justice field left california for washington in september, , a few days after the denial of terry's petition to the circuit court for a release. the threats against his life and that of judge sawyer so boldly made by the terrys were as well known as the newspaper press could make them. in addition to this source of information, reports came from many other directions, telling of the rage of the terrys and their murderous intentions. from october, , till his departure for california, in june following, , his mail almost every day contained reports of what they were saying, and the warnings and entreaties of his friends against his return to that state. these threats came to the knowledge of the attorney-general of the united states, who gave directions to the marshal of the northern district of california to see to it that justice field and judge sawyer should be protected from personal violence at the hands of these parties. justice field made but one answer to all who advised against his going to hold court in california in , and that was, "i cannot and will not allow threats of personal violence to deter me from the regular performance of my judicial duties at the times and places fixed by law. as a judge of the highest court of the country, i should be ashamed to look any man in the face if i allowed a ruffian, by threats against my person, to keep me from holding the regular courts in my circuit." terry's murderous intentions became a matter of public notoriety, and members of congress and senators from the pacific coast, in interviews with the attorney-general, confirmed the information derived by him from other sources of the peril to which the united states judges in california were subjected. he, in consequence, addressed the following letter on the subject to marshal franks: "department of justice, "washington, _april , _. "john c. franks, "_united states marshal, san francisco, cal._ "sir: the proceedings which have heretofore been had in the case of mr. and mrs. terry in your united states circuit court have become matter of public notoriety, and i deem it my duty to call your attention to the propriety of exercising unusual precaution, in case further proceedings shall be had in that case, for the protection of his honor justice field, or whoever may be called upon to hear and determine the matter. of course, i do not know what may be the feelings or purpose of mr. and mrs. terry in the premises, but many things which have happened indicate that violence on their part is not impossible. it is due to the dignity and independence of the court and the character of its judges that no effort on the part of the government shall be spared to make them feel entirely safe and free from anxiety in the discharge of their high duties. "you will understand, of course, that this letter is not for the public, but to put you upon your guard. it will be proper for you to show it to the district attorney if deemed best. "yours truly, "w.h.h. miller, "_attorney-general_." a month later the attorney-general authorized the employment of special deputies for the purpose named in the foregoing letter. chapter xii. further proceedings in the state court.--judge sullivan's decision reversed. mrs. terry did not wait for the release of her husband from jail before renewing the battle. on the d of january, , she gave notice of a motion in the superior court for the appointment of a receiver who should take charge of the sharon estate, which she alleged was being squandered to the injury of her interest therein acquired under the judgment of judge sullivan. on the th of january an injunction was issued by the united states circuit court commanding her and all others to desist from this proceeding. the terrys seemed to feel confident that this would bring on a final trial of strength between the federal and state courts, and that the state court would prevail in enforcing its judgment and orders. the motion for a receiver was submitted after full argument, and on the d of june following judge sullivan rendered a decision asserting the jurisdiction of his court to entertain the motion for a receiver, and declaring the decree of the united states circuit court inoperative. in his opinion judge sullivan reviewed the opinion of justice field in the revivor suit, taking issue therewith. as that decision had been affirmed by the supreme court of the united states nearly a month before, to wit, on the th of may, , it was rather late for such a discussion. having thus decided, however, that the motion for a receiver could be made, he set the hearing of the same for july , . on the th of may, one week before the rendering of this decision by judge sullivan, the mandate of the united states supreme court had been filed in the circuit court at san francisco, by which the decree of that court was affirmed. whether a receiver would be appointed by judge sullivan, in the face of the decision of the supreme court of the united states, became now an interesting question. terry and his lawyers affected to hold in contempt the supreme court decree, and seemed to think no serious attempt would be made to enforce it. meantime, both of the terrys had been indicted in the united states circuit court for the several offenses committed by them in assaulting the marshal in the court-room as hereinbefore described. these indictments were filed on the th of september. dilatory motions were granted from time to time, and it was not until the th of june that demurrers to the indictments were filed. the summer vacation followed without any argument of these demurrers. it was during this vacation that justice field arrived in california, on the th of june. the situation then existing was as follows: the criminal proceedings against the terrys were at a standstill, having been allowed to drag along for nine months, with no further progress than the filing of demurrers to the indictments. the appeal to the supreme court of the state from judge sullivan's order denying a new trial had been argued and submitted on the th of may, but no decision had been rendered. despite the pendency of that appeal, by reason of which the judgment of the supreme court of the state had not yet become final, and despite the mandate of the united states supreme court affirming the decree in the revivor case, judge sullivan had, as we have already seen, set the th of july for the hearing of the motion of the terrys for the appointment of a receiver to take charge of the sharon estate. for them to proceed with this motion would be a contempt of the united states circuit court. the arrival of justice field should have instructed judge terry that the decree of that court could not be defied with impunity, and that the injunction issued in it against further proceedings upon the judgment in the state court would be enforced with all the power authorized by the constitution and laws of the united states for the enforcement of judicial process. as the th of july approached, the lawyers who had been associated with terry commenced discussing among themselves what would be the probable consequence to them of disobeying an injunction of the united states circuit court. the attorneys for the sharon estate made known their determination to apply to that court for the enforcement of its writ in their behalf. the terrys' experience in resisting the authority of that court served as a warning for their attorneys. on the morning of the th of july judge terry and his wife appeared, as usual, in the superior court room. two of their lawyers came in, remained a few minutes and retired. judge terry himself remained silent. his wife arose and addressed the court, saying that her lawyers were afraid to appear for her. she said they feared if they should make a motion in her behalf, for the appointment of a receiver, judge field would put them in jail; therefore, she said, she appeared for herself. she said if she got in jail she would rather have her husband outside, and this was why she made the motion herself, while he remained a spectator. the hearing was postponed for several days. before the appointed day therefor, the supreme court of the state, on the th of july, rendered its decision, reversing the order of judge sullivan refusing a new trial, thereby obliterating the judgment in favor of sarah althea, and the previous decision of the appellate court affirming it. the court held that this previous judgment had not become the law of the case pending the appeal from the order denying a new trial. it held that where two appeals are taken in the same case, one from the judgment and the other from the order denying a new trial, the whole case must be held to be under the control of the supreme court until the whole is disposed of, and the case remanded for further proceedings in the court below. the court reversed its previous decision, and declared that if the statements made by sarah althea and by her witnesses had been true, she never had been the wife of william sharon, for the reason that, after the date of the alleged contract of marriage, the parties held themselves out to the public as single and unmarried people, and that even according to the findings of fact by judge sullivan the parties had not assumed marital rights, duties, and obligations. the case was therefore remanded to the superior court for a new trial. on the d of august the demurrers to the several indictments against the terrys came up to be heard in the united states district court. the argument upon them concluded on the th. on the th the demurrer to one of the indictments against sarah althea was overruled and she entered a plea of not guilty. no decision was rendered at that time upon either of the five other indictments. on the following day, august th, justice field left san francisco and went to los angeles for the purpose of holding court. chapter xiii. attempted assassination of justice field, resulting in terry's own death at the hands of a deputy united states marshal. in view of what was so soon to occur, it is important to understand the condition of mind into which judge terry and his wife had now wrought themselves. they had been married about two years and a half. in their desperate struggle for a share of a rich man's estate they had made themselves the terror of the community. armed at all times and ready for mortal combat with whoever opposed their claims, they seemed, up to the th of july, to have won their way in the state courts by intimidation. the decision of the united states circuit court was rendered before they were married. it proclaimed the pretended marriage agreement a forgery, and ordered it to be delivered to the clerk of the court for cancellation. terry's marriage with sarah althea, twelve days after this, was a declaration of intention to resist its authority. the conduct of the pair in the circuit court on the d of september must have had some object. they may have thought to break up the session of the court for that day, and to so intimidate the judges that they would not carry out their purpose of rendering the decision; or they may have hoped that, if rendered, it would be allowed to slumber without any attempt to enforce it; or even that a rehearing might be granted, and a favorable decision forced from the court. it takes a brave man on the bench to stand firmly for his convictions in the face of such tactics as were adopted by the terrys. the scene was expected also to have its effect upon the minds of the judges of the supreme court of the state, who then were yet to pass finally upon sullivan's judgment on the appeal from the order denying a new trial. but the terrys had not looked sufficiently at the possible consequence of their actions. they had thus far gone unresisted. as district attorney carey wrote to the attorney-general: "they were unable to appreciate that an officer should perform his official duty when that duty in any way requires that his efforts be directed against them." when, therefore, justice field directed the removal of mrs. terry from the court, and when her doughty defendant and champion, confident of being able to defeat the order, found himself vanquished in the encounter, disarmed, arrested, and finally imprisoned, his rage was boundless. he had found a tribunal which cared nothing for his threats, and was able to overcome his violence. a court that would put him in the alameda jail for six months for resisting its order would enforce all its decrees with equal certainty. from the time of the terrys' incarceration in the alameda county jail their threats against justice field became a matter of such notoriety that the drift of discussion was not so much whether they would murder the justice, as to when and under what circumstances they would be likely to do so. there is little doubt that terry made many threats for the express purpose of having them reach the knowledge of judge field at washington, in the hope and belief that they would deter him from going to california. he probably thought that the judge would prefer to avoid a violent conflict, and that if his absence could be assured it might result in allowing the decree of the united states circuit court to remain a dead letter. he told many people that justice field would not dare come out to the pacific coast. he got the idea into his mind, or pretended to, that justice field had put him in jail in order to be able to leave for washington before a meeting could be had with him. terry would of course have preferred field's absence and a successful execution of sullivan's judgment to his presence in the state and the enforcement of the federal decree. when the announcement was made that justice field had left washington for san francisco, public and private discussions were actively engaged in, as to where he would be likely to encounter danger. a special deputy was sent by the marshal to meet the overland train on which he was travelling, at reno, in nevada. the methods of mrs. terry defied all calculations. she was as likely to make her appearance, with her burly husband as an escort, at the state line, as she finally did at the breakfast table at lathrop. justice field reached his quarters in san francisco on the th of june. from that day until the th of august public discussion of what the terrys would do continued. some of the newspapers seemed bent upon provoking a conflict, and inquired with devilish mischief when terry was going to carry out his threatened purpose. the threats of the terrys and the rumors of their intended assault upon justice field were reported to him and he was advised to go armed against such assault, which would be aimed against his life. he answered: "no, sir! i will not carry arms, for when it is known that the judges of our courts are compelled to arm themselves against assaults in consequence of their judicial action it will be time to dissolve the courts, consider government a failure, and let society lapse into barbarism." as the time approached for the hearing of the motion for a receiver before judge sullivan, july th, grave apprehensions were entertained of serious trouble. great impatience was expressed with the supreme court of the state for not rendering its decision upon the appeal from the order denying a new trial. it was hoped that the previous decision might be reversed, and a conflict between the two jurisdictions thus avoided. when the decision came, on the th of july, there seemed to be some relaxation of the great tension in the public mind. with the supreme court of the state, as well as the supreme court of the united states, squarely on the record against mrs. terry's pretensions to have been the wife of william sharon, it was hoped that the long war had ended. when justice field left san francisco for los angeles he had no apprehensions of danger, and strenuously objected to being accompanied by the deputy marshal. some of his friends were less confident. they realized better than he did the bitterness that dwelt in the hearts of terry and his wife, intensified as it was by the realization of the dismal fact that their last hope had expired with the decision of the supreme court of the state. the marshal was impressed with the danger that would attend justice field's journey to and from the court at los angeles. he went from san francisco on the th of august. after holding court in los angeles he took the train for san francisco august th, the deputy marshal occupying a section in the sleeping car directly opposite to his. judge terry and his wife left san francisco for their home in fresno the day following justice field's departure for los angeles. fresno is a station on the southern pacific between los angeles and san francisco. his train left los angeles for san francisco at : tuesday afternoon, august th. the deputy marshal got out at all the stations at which any stop was made for any length of time, to observe who got on board. before retiring he asked the porter of the car to be sure and wake him in time for him to get dressed before they reached fresno. at fresno, where they arrived during the night, he got off the train and went out on the platform. among the passengers who took the train at that station were judge terry and wife. he immediately returned to the sleeper and informed justice field, who had been awakened by the stopping of the train, that terry and his wife had got on the train. he replied: "very well. i hope that they will have a good sleep." neagle slept no more that night. the train reached merced, an intervening station between fresno and lathrop, at : that morning. neagle there conferred with the conductor, on the platform, and referred to the threats so often made by the terrys. he told him that justice field was on the train, and that he was accompanying him. he requested him to telegraph to lathrop, to the constable usually in attendance there, to be at hand, and that if any trouble occurred he would assist in preventing violence. justice field got up before the train reached lathrop, and told the deputy marshal that he was going to take his breakfast in the dining-room at that place. the following is his statement of what took place: "he said to me, 'judge, you can get a good breakfast at the buffet on board.' i did not think at the time what he was driving at, though i am now satisfied that he wanted me to take breakfast on the car and not get off. i said i prefer to have my breakfast at this station. i think i said i had come down from the yosemite valley a few days before, and got a good breakfast there, and was going there for that purpose. "he replied: 'i will go with you.' we were among the first to get off from the train." as soon as the train arrived, justice field, leaning on the arm of neagle, because of his lameness, proceeded to the dining-room, where they took seats for breakfast. there were in this dining-room fifteen tables, each one of which was ten feet long and four feet wide. they were arranged in three rows of five each, the tables running lengthwise with each other, with spaces between them of four feet. the aisles between the two rows were about seven feet apart, the rows running north and south. justice field and neagle were seated on the west side of the middle table in the middle row, the justice being nearer the lower corner of the table, and neagle at his left. very soon after--justice field says "a few minutes," while neagle says "it may be a minute or so"--judge terry and his wife entered the dining-room from the east. they walked up the aisle, between the east and middle rows of tables, so that justice field and neagle were faced towards them. judge terry preceded his wife. justice field saw them and called neagle's attention to them. he had already seen them. as soon as mrs. terry had reached a point nearly in front of justice field, she turned suddenly around, and scowling viciously, went in great haste out of the door at which she had come in. this was for the purpose, as it afterwards appeared, of getting her satchel with the pistol in it, which she had left in the car. judge terry apparently paid no attention to this movement, but proceeded to the next table above and seated himself at the upper end of it, facing the table at which justice field was seated. thus there were between the two men as they sat at the tables a distance equal to two table-lengths and one space of four feet, making about twenty-four feet. terry had been seated but a very short time--justice field thought it a moment or two, neagle thought it three or four minutes--when he arose and moved down towards the door, this time walking through the aisle _behind_ justice field, instead of the one in front of him as before. justice field supposed, when he arose, that he was going out to meet his wife, as she had not returned, and went on with his breakfast; but when terry had reached a point behind him, and a little to the right, within two or three feet of him, he halted. justice field was not aware of this, nor did he know that terry had stopped, until he was struck by him a violent blow in the face from behind, followed instantaneously by another blow at the back of his head. neagle had seen terry stop and turn. between this and terry's assault there was a pause of four or five seconds. instantaneously upon terry's dealing a blow, neagle leaped from his chair and interposed his diminutive form between justice field and the enraged and powerful man, who now sought to execute his long-announced and murderous purpose. terry gave justice field no warning of his presence except a blow from behind with his right hand. as neagle rose, he shouted: "stop, stop, i am an officer." judge terry had drawn back his right arm for a third blow at justice field, and with clinched fist was about to strike, when his attention was thus arrested by neagle, and looking at him he evidently recognized in him the man who had drawn the knife from his hand in the corridor before the marshal's office on the third of september of the preceding year, while he was attempting to cut his way into the marshal's office. neagle put his right hand up as he ordered terry to stop, when terry carried his right hand at once to his breast, evidently to seize the knife which he had told the alameda county jailer he "always carried." says neagle: "this hand came right to his breast. it went a good deal quicker than i can explain it. he continued looking at me in a desperate manner and his hand got there." the expression of terry's face at that time was described by neagle in these words: "the most desperate expression that i ever saw on a man's face, and i have seen a good many in my time. it meant life or death to me or him." having thus for a moment diverted the blow aimed at justice field and engaged terry himself, neagle did not wait to be butchered with the latter's ready knife, which he was now attempting to draw, but raised his six-shooter with his left hand (he is left-handed) and holding the barrel of it with his right hand, to prevent the pistol from being knocked out of his hands, he shot twice; the first shot into terry's body and the second at his head. terry immediately commenced sinking very slowly. knowing by experience that men mortally wounded have been often known to kill those with whom they were engaged in such an encounter, neagle fired the second shot to defend himself and justice field against such a possibility. the following is an extract from justice field's testimony, commencing at the point where judge terry rose from his seat at the breakfast table: "i supposed, at the time, he was going out to meet his wife, as she had not returned, so i went on with my breakfast. it seems, however, that he came around back of me. i did not see him, and he struck me a violent blow in the face, followed instantaneously by another blow. coming so immediately together, the two blows seemed like one assault. i heard 'stop, stop,' cried by neagle. of course i was for a moment dazed by the blows. i turned my head around and saw that great form of terry's with his arm raised and fist clinched to strike me. i felt that a terrific blow was coming, and his arm was descending in a curved way as though to strike the side of my temple, when i heard neagle cry out: 'stop, stop, i am an officer.' instantly two shots followed. i can only explain the second shot from the fact that he did not fall instantly. i did not get up from my seat, although it is proper for me to say that a friend of mine thinks i did, but i did not. i looked around and saw terry on the floor. i looked at him and saw that particular movement of the eyes that indicates the presence of death. of course it was a great shock to me. it is impossible for any one to see a man in the full vigor of life, with all those faculties that constitute life instantly extinguished without being affected, and i was. i looked at him for a moment, then went around and looked at him again, and passed on. great excitement followed. a gentleman came to me, whom i did not know, but i think it was mr. lidgerwood, who has been examined as a witness in this case, and said: 'what is this?' i said: 'i am a justice of the supreme court of the united states. my name is judge field. judge terry threatened my life and attacked me, and the deputy marshal has shot him.' the deputy marshal was perfectly cool and collected, and stated: 'i am a deputy marshal, and i have shot him to protect the life of judge field.' i cannot give you the exact words, but i give them to you as near as i can remember them. a few moments afterwards the deputy marshal said to me: 'judge, i think you had better go to the car.' i said, 'very well.' then this gentleman, mr. lidgerwood, said: 'i think you had better.' and with the two i went to the car. i asked mr. lidgerwood to go back and get my hat and cane, which he did. the marshal went with me, remained some time, and then left his seat in the car, and, as i thought, went back to the dining-room. (this is, however, i am told, a mistake, and that he only went to the end of the car.) he returned, and either he or some one else stated that there was great excitement; that mrs. terry was calling for some violent proceedings. i must say here that, dreadful as it is to take life, it was only a question of seconds whether my life or judge terry's life should be taken. i am firmly convinced that had the marshal delayed two seconds both he and myself would have been the victims of terry. "in answer to a question whether he had a pistol or other weapon on the occasion of the homicide, justice field replied: 'no, sir. i have never had on my person or used a weapon since i went on the bench of the supreme court of this state, on the th of october, , except once, when, years ago, i rode over the sierra nevada mountains in a buggy with general hutchinson, and at that time i took a pistol with me for protection in the mountains. with that exception, i have not had on my person, or used, any pistol or other deadly weapon.'" judge terry had fallen very near the place where he first stopped, near the seat occupied by justice field at the table. neagle testified that if justice field had had a weapon, and been active in using it, he was at such a disadvantage, seated as he was, with terry standing over him, that he would have been unable to raise his hand in his own defense. a large number of witnesses were examined, all of whom agreed upon the main facts as above stated. some of them distinctly heard the blows administered by terry upon justice field's face and head. all testified to the loud warning given terry by neagle that he was an officer of the law, accompanied by his command that terry should desist. it was all the work of a few seconds. terry's sudden attack, the quick progress of which, from the first blow, was neither arrested nor slackened until he was disabled by the bullet from neagle's pistol, could have been dealt with in no other way. it was evidently a question of the instant whether terry's knife or neagle's pistol should prevail. says neagle: "he never took his eyes off me after he looked at me, or i mine off him. i did not hear him say anything. the only thing was he looked like an infuriated giant to me. i believed if i waited two seconds i should have been cut to pieces. i was within four feet of him." q. "what did the motion that judge terry made with his right hand indicate to you?" a. "that he would have had that knife out there within another second and a half, and trying to cut my head off." terry, in action at such a time, from all accounts, was more like an enraged wild animal than a human being. the supreme moment had arrived to which he had been looking forward for nearly a year, when the life of the man he hated was in his hands. he had repeatedly sworn to take it. not privately had he made these threats. with an insolence and an audacity born of lawlessness and of a belief that he could hew his way with a bowie-knife in courts as well as on the streets, he had publicly sentenced judge field to death as a penalty for vindicating the majesty of the law in his imprisonment for contempt. it would have been the wildest folly that can be conceived of for the murderous assault of such a man to have been met with mild persuasion, or an attempt to arrest him. as well order a hungry tiger to desist from springing at his prey, to sheathe his outstretched claws and suffer himself to be bound, as to have met terry with anything less than the force to which he was himself appealing. every man who knows anything of the mode of life and of quarrelling and fighting among the men of terry's class knows full well that when they strike a blow they mean to follow it up to the death, and they mean to take no chances. the only way to prevent the execution of terry's revengeful and openly avowed purpose was by killing him on the spot. only a lunatic or an imbecile or an accomplice would have pursued any other course in neagle's place than the one he pursued, always supposing he had neagle's nerve and cool self-possession to guide him in such a crisis. while this tragedy was being enacted mrs. terry was absent, having returned to the car for the satchel containing her pistol. before she returned, the shot had been fired that defeated the conspiracy between her and her husband against the life of a judge for the performance of his official duties. she returned to the hotel with her satchel in her hand just as her husband met his death. the manager of the hotel stopped her at the door she was entering, and seized her satchel. she did not relinquish it, but both struggled for its possession. a witness testified that she screamed out while so struggling: "let me get at it; i will fix him." many witnesses testified to her frantic endeavor to get the pistol. she called upon the crowd to hang the man that killed judge terry, and cried out, "lynch judge field." again and again she made frantic appeals to those present to lynch judge field. she tried to enter the car where he was, but was not permitted to do so. she cried out, "if i had my pistol i would fix him." the testimony subsequently taken left no room to doubt that terry had his deadly knife in its place in his breast at the time he made the attack on justice field. as the crowd were all engaged in breakfasting, his movements attracted little attention, and his motion toward his breast for the knife escaped the notice of all but neagle and one other witness. neagle rushed between terry and justice field, and the latter had not a complete view of his assailant at the moment when the blow intended for him was changed into a movement for the knife with which judge terry intended to dispose of the alert little man, with whom he had had a former experience, and who now stood between him and the object of his greater wrath. but the conduct of mrs. terry immediately after the homicide was proof enough that her husband's knife had been in readiness. the conductor of the train swore that he saw her lying over the body of her husband about a minute, and when she rose up she unbuttoned his vest and said: "you may search him; he has got no weapon on him." not a word had been said about his having had a weapon. no one had made a movement towards searching him, as ought to have been done; but this woman, who had been to the car for her pistol and returned with it to join, if necessary, in the murderous work, had all the time and opportunity necessary for taking the knife from its resting-place under his vest, smearing one of her hands with his blood, which plainly showed where it had been and what she had been doing. neagle could not search the body, for his whole attention was directed to the protection of justice field. mrs. terry repeated the challenge to search the body for the knife after it had been removed. this showed clearly that the idea uppermost in her mind was to then and there manufacture testimony that he had not been armed at all. her eagerness on this subject betrayed her. had she herself then been searched, after rising from terry's body, the knife would doubtless have been found concealed upon her person. a number of witnesses testified to her conduct as above described. she said also: "you will find that he has no arms, for i took them from him in the car, and i said to him that i did not want him to shoot justice field, but i did not object to a fist bout." this reference to a fist bout was, of course, an admission that they had premeditated the assault. it was judge terry's knife and not a pistol that judge field had to fear. terry's threats had always pointed to some gross indignity that he would put upon justice field, and then kill him if he resented or resisted it. one of his threats was that he would horsewhip judge field, and that if he resented it he would kill him. in short, his intentions seem to have been to commit an assassination in alleged self-defense. the train soon left the station for san francisco. a constable of lathrop had taken the train, and addressing neagle told him that he would have to arrest him. this officer had no warrant and did not himself witness the homicide. justice field told him that he ought to have a warrant before making the arrest, remarking, if a man should shoot another when he was about to commit a felony, such as setting fire to your house, you would not arrest him for a murder; or if a highwayman got on the train to plunder. the officer replied very courteously by the suggestion that there would have to be an inquest. neagle at once said, "i am ready to go," thinking it better to avoid all controversy, and being perfectly willing to answer anywhere for what he had done. arriving at the next station (tracy), neagle and the officer took a buggy and went to the county jail at stockton. thus was a deputy marshal of the united states withdrawn from the service of his government while engaged in a most important and as yet unfinished duty because he had with rigid faithfulness performed that duty. he was arrested by an officer who had no warrant and had not witnessed the homicide, and lodged in jail. meanwhile a detective in san francisco received a telegram from the sheriff of san joaquin county to arrest judge field. supposing it to be his duty to comply with this command, the detective crossed the bay to meet the train for that purpose. marshal franks said to him: "you shall not arrest him. you have no right to do so. it would be an outrage, and if you attempt it i will arrest you." the news of these exciting events produced an intense excitement in san francisco. upon his arrival at this place, under the escort of the marshal and many friends, justice field repaired to his quarters in the palace hotel. chapter xiv. sarah althea terry charges justice field and deputy marshal neagle with murder. the body of judge terry was taken from lathrop to stockton, accompanied by his wife, soon after his death. on that very evening sarah althea terry swore to a complaint before a justice of the peace named swain, charging justice field and deputy marshal neagle with murder. after the investigation before the coroner assistant district attorney gibson stated that the charge against justice field would be dismissed, as there was no evidence whatever to connect him with the killing. mrs. terry did not see the shooting and was not in the hotel at the time of the homicide. having, therefore, no knowledge upon which to base her statement, her affidavit was entitled to no greater consideration than if it had stated that it was made solely upon her belief without any positive information on the subject. only the most violent of terry's friends favored the wanton indignity upon justice field, and his arrest, but they had sufficient influence with the district attorney, mr. white, a young and inexperienced lawyer, to carry him along with them. the justice of the peace before whom sarah althea had laid the information issued a warrant on the following day for the arrest both of justice field and neagle. from this time this magistrate and the district attorney appeared to act under orders from mrs. terry. the preliminary examination was set for wednesday of the following week, during which time the district attorney stated for publication that justice field would have to go to jail and stay there during the six intervening days. it was obvious to all rational minds that mrs. terry's purpose was to use the machinery of the magistrate's court for the purpose of taking judge field to stockton, where she could execute her threats of killing him or having him killed; and if she should fail to do so, or postpone it, then to have the satisfaction of placing a justice of the supreme court of the united states in a prisoner's cell, and hold him there for six days awaiting an examination, that being the extreme length of time that he could be so held under the statute. the district attorney was asked if he had realized the danger of bringing justice field to stockton, where he might come in contact with mrs. terry. the officer replied: "we had intended that if justice field were brought here, mrs. terry would be placed under the care of _her friends_, and that all precautions to prevent any difficulty that was in the power of the district attorney would be taken." that was to say, mrs. terry would do no violence to justice field unless "her friends" permitted her to do so. as some of them were possessed of the same murderous feelings towards justice field as those named here, the whole transaction had the appearance of a conspiracy to murder him. no magistrate can lawfully issue a warrant without sufficient evidence before him to show probable cause. it was a gross abuse of power and an arbitrary and lawless act to heed the oath of this frenzied woman, who notoriously had not witnessed the shooting, and had, but a few hours before, angrily insisted upon having her own pistol returned to her that she, herself, might kill justice field. it was beyond belief that the magistrate believed that there was probable cause, or the slightest appearance of a cause, upon which to base the issue of the warrant. neagle was brought into court at stockton at o'clock on the morning after the shooting, to wit, on thursday, the th, and his preliminary examination set for wednesday, the st. bail could not be given prior to that examination. this examination could have proceeded at once, and a delay of six days can only be accounted for by attributing it to the malice and vindictiveness of the woman who seemed to be in charge of the proceedings. the keen disappointment of mrs. terry, and those who were under her influence, at judge terry's failure to murder justice field, must have been greatly soothed by the prospect of having yet another chance at the latter's life, and, in any event, of seeing him in a cell in the jail during the six days for which the examination could be delayed for that express purpose. the sheriff of san joaquin county proceeded to san francisco with the warrant for his arrest on thursday evening. in company with the chief of police and marshal franks, he called upon justice field, and after a few moments' conversation it was arranged that he should present the warrant at one o'clock on the following day, at the building in which the federal courts are held. chapter xv. justice field's arrest and petition fob release on habeas corpus. at the appointed hour justice field awaited the sheriff in his chambers, surrounded by friends, including judges, ex-judges, and members of the bar. as the sheriff entered justice field arose and pleasantly greeted him. the sheriff bore himself with dignity, and with a due sense of the extraordinary proceeding in which his duty as an officer required him to be a participant. with some agitation he said: "justice field, i presume you are aware of the nature of my errand." "yes," replied the justice, "proceed with your duty; i am ready. an officer should always do his duty." the sheriff stated to him that he had a warrant, duly executed and authenticated, and asked him if he should read it. "i will waive that, mr. sheriff," replied the justice. the sheriff then handed him the warrant, which he read, folded it up and handed it back, saying pleasantly: "i recognize your authority, sir, and submit to the arrest; i am, sir, in your custody." meanwhile a petition had been prepared to be presented to judge sawyer for a writ of _habeas corpus_, returnable at once before the united states court. as soon as the arrest was made the petition was signed and presented to judge sawyer, who ordered the writ to issue returnable forthwith. in a very few minutes u.s. marshal franks served the writ on the sheriff. while the proceedings looking to the issue of the writ were going on, justice field had seated himself, and invited the sheriff to be seated. the latter complied with the invitation, and began to say something in regard to the unpleasant duty which had devolved upon him, but justice field promptly replied: "not so, not so; you are but doing your plain duty, and i mine in submitting to arrest. it is the first duty of judges to obey the law." as soon as the _habeas corpus_ writ had been served, the sheriff said he was ready to go into the court. "let me walk with you," said justice field, as they arose, and took the sheriff's arm. in that way they entered the court-room. justice field seated himself in one of the chairs usually occupied by jurors. time was given to the sheriff to make a formal return to the writ; and in a few minutes he formally presented it. the petition of judge field for the writ set forth his official character, and the duties imposed upon him by law, and alleged that he had been illegally arrested, while he was in the discharge of those duties, and that his illegal detention interfered with and prevented him from discharging them. then followed a statement of the facts, showing the arrest and detention to be illegal. this statement embraced the principal facts connected with the contempt proceedings in , and the threats then and thereafter made by the terrys of violence upon justice field; the precautions taken in consequence thereof by the department of justice for his protection from violence at their hands, and the murderous assault made upon him, and his defense by deputy marshal neagle, resulting in the death of terry, and that he, the petitioner, in no manner defended or protected himself, and gave no directions to the deputy marshal, and that he was not armed with any weapon. the petition then states: "that under the circumstances detailed, the said sarah althea terry, as your petitioner is informed and believes, and upon such information and belief alleges, falsely and maliciously swore out the warrant of arrest hereinbefore set out against your petitioner, without any further basis for the charge of murder than the facts hereinbefore detailed, and that the warrant aforesaid was issued by such justice of the peace, without any just or probable cause therefor. * * * and your petitioner further represents that the charge against him, and the warrant of arrest in the hands of said sheriff, are founded upon the sole affidavit of mrs. sarah althea terry, who was not present and did not see the shooting which caused the death of said david s. terry." in order to show the little reliance to be placed in the oath of mrs. terry, the petition stated: "that in a suit brought by william sharon, now deceased, against her before her marriage to the said terry, it was proved and held by the circuit court of the united states that she had committed the forgery of the document produced in that case, and had attempted to support it by perjury and subornation of perjury, and had also been guilty of acts and conduct showing herself to be an abandoned woman, without veracity. * * * "your petitioner further represents that the abandoned character of the said sarah althea terry, and the fact that she was found guilty of perjury and forgery in the case above mentioned by the said circuit court, and the fact of the revengeful malice entertained toward your petitioner by said sarah althea terry, are notorious in the state of california, and are notorious in the city of stockton, and as your petitioner believes are well known to the district attorney of the said county of san joaquin, and also to the said justice of the peace who issued the said warrant; and your petitioner further alleges that had either of the said officers taken any pains whatever to ascertain the truth in the case, he would have ascertained and known that there was not the slightest pretext or foundation for any such charge as was made, and also that the affidavit of the said sarah althea terry was not entitled to the slightest consideration whatever. "your petitioner further states that it is to him incomprehensible how any man, acting in a consideration of duty, could have listened one moment to charges from such a source, and without having sought some confirmation from disinterested witnesses; and your petitioner believes and charges that the whole object of the proceeding is to subject your petitioner to the humiliation of arrest and confinement at stockton, where the said sarah althea terry may be able, by the aid of partisans of hers, to carry out her long-continued and repeated threats of personal violence upon your petitioner, and to prevent your petitioner from discharging the duties of his office in cases pending against her in the federal court at san francisco." the sheriff's return was as follows: "return of sheriff of san joaquin county, cala., county of san joaquin, state of california: "sheriff's office. "_to the honorable circuit court of the united states for the northern district of california:_ "i hereby certify and return that before the coming to me of the hereto-annexed writ of _habeas corpus_, the said stephen j. field was committed to my custody, and is detained by me by virtue of a warrant issued out of the justice's court of stockton township, state of california, county of san joaquin, and by the endorsement made upon said warrant. copy of said warrant and endorsement is annexed hereto, and made a part of this return. nevertheless, i have the body of the said stephen j. field before the honorable court, as i am in the said writ commanded. "august , . "thomas cunningham, "_sheriff, san joaquin co., california_." in order to give the petitioner time to traverse the return if he thought it expedient to do so, and to give him and the state time to produce witnesses, the further hearing upon the return was adjourned until the following thursday morning, the d, and the petitioner was released on his recognizance with a bond fixed at $ , . on the same day a petition on the part of neagle was presented to judge sawyer asking that a writ of _habeas corpus_ issue in his behalf to sheriff cunningham. the petition was granted at once, and served upon the sheriff immediately after the service of the writ issued on behalf of justice field. early on the morning of saturday, august , neagle was brought from stockton by the sheriff at : a.m. district attorney white and mrs. terry's lawyer, maguire, were duly notified of this movement and were passengers on the same train. at : sheriff cunningham appeared in the circuit court with neagle to respond to the writ. he returned that he held neagle in custody, under a warrant issued by a justice of the peace of that county, a copy of which he produced; and also a copy of the affidavit of sarah althea terry upon which the warrant was issued. a traverse to that return was then filed, presenting various grounds why the petitioner should not be held, the most important of which were that an officer of the united states, specially charged with a particular duty, that of protecting one of the justices of the supreme court of the united states whilst engaged in the performance of his duty, could not, for an act constituting the very performance of that duty, be taken from the further discharge of his duty and imprisoned by the state authorities, and that when an officer of the united states in the discharge of his duties is charged with an offense consisting in the performance of those duties, and is sought to be arrested, and taken from the further performance of them, he can be brought before the tribunals of the nation of which he is an officer, and the fact then inquired into. the attorney-general of the state appeared with the district attorney of san joaquin county, and contended that the offense of which the petitioner was charged could only be inquired into before the tribunals of the state. chapter xvi. judge terry's funeral--refusal of the supreme court of california to adjourn on the occasion. the funeral of judge terry occurred on friday, the th. an unsuccessful attempt was made for a public demonstration. the fear entertained by some that eulogies of an incendiary character would be delivered was not realized. the funeral passed off without excitement. the rector being absent, the funeral service was read by a vestryman of the church. on the day after judge terry's death the following proceedings occurred in the supreme court of the state: late in the afternoon, just after the counsel in a certain action had concluded their argument, and before the next cause on the calendar was called, james l. crittenden, esq., who was accompanied by w.t. baggett, esq., arose to address the court. he said: "your honors, it has become my painful and sad duty to formally announce to the court the death of a former chief justice"-- chief justice beatty: "mr. crittenden, i think that is a matter which should be postponed until the court has had a consultation about it." the court then, without leaving the bench, held a whispered consultation. mr. crittenden then went on to say: "i was doing this at the request of several friends of the deceased. it has been customary for the court to take formal action prior to the funeral. in this instance, i understand the funeral is to take place to-morrow." chief justice beatty: "mr. crittenden, the members of the court wish to consult with each other on this matter, and you had better postpone your motion of formal announcement until to-morrow morning." mr. crittenden and mr. baggett then withdrew from the court-room. on the following day, in the presence of a large assembly, including an unusually large attendance of attorneys, mr. crittenden renewed his motion. he said: "if the court please, i desire to renew the matter which i began to present last evening. as a friend--a personal friend--of the late judge terry, i should deem myself very cold, indeed, and very far from discharging the duty which is imposed upon that relation, if i did not present the matter which i propose to present to this bench this morning. i have known the gentleman to whom i have reference for over thirty years, and i desire simply now, in stating that i make this motion, to say that the friendship of so many years, and the acquaintance and intimacy existing between that gentleman and his family and myself for so long a period, require that i should at this time move this court, as a court, out of recollection for the memory of the man who presided in the supreme court of this state for so many years with honor, ability, character, and integrity, and, therefore, i ask this court, out of respect for his memory, to adjourn during the day on which he is to be buried, which is to-day." chief justice beatty said: "i regret very much that counsel should have persisted in making this formal announcement, after the intimation from the court. upon full consultation we thought it would be better that it should not be done. the circumstances of judge terry's death are notorious, and under these circumstances this court had determined that it would be better to pass this matter in silence, and not to take any action upon it; and that is the order of the court." the deceased had been a chief justice of the tribunal which, by its silence, thus emphasized its condemnation of the conduct by which he had placed himself without the pale of its respect. chapter xvii. habeas corpus proceedings in justice field's case. on thursday, august d, the hearing of the _habeas corpus_ case of justice field commenced in the united states circuit court, under orders from the attorney-general, to whom a report of the whole matter had been telegraphed. the united states district attorney appeared on behalf of justice field. in addition to him there also appeared as counsel for justice field, hon. richard t. mesick, saml. m. wilson, esq., and w.f. herrin, esq. the formal return of the writ of _habeas corpus_ had been made by the sheriff of san joaquin county on the th. to that return justice field presented a traverse, which was in the following language, and was signed and sworn to by him: "the petitioner, stephen j. field, traverses the return of the sheriff of san joaquin county, state of california, made by him to the writ of _habeas corpus_ by the circuit judge on the ninth circuit, and made returnable before the circuit court of said circuit, and avers: "that he is a justice of the supreme court of the united states, allotted to the ninth judicial circuit, and is now and has been for several weeks in california, in attendance upon the circuit court of said circuit in the discharge of his judicial duties; and, further, that the said warrant of the justice of the peace, h.v.j. swain, in stockton, california, issued on the th day of august, , under which the petitioner is held, was issued by said justice of the peace without reasonable or probable cause, upon the sole affidavit of one sarah althea terry, who did not see the commission of the act which she charges to have been a murder, and who is herself a woman of abandoned character, and utterly unworthy of belief respecting any matter whatever; and, further, that the said warrant was issued in the execution of a conspiracy, as your petitioner is informed, believes, and charges, between the said sarah althea terry and the district attorney, white, and the said justice of the peace, h.v.j. swain, and one e.l. colnon, of said stockton, to prevent by force and intimidation your petitioner from discharging the duties of his office hereafter, and to injure him in his person on account of the lawful discharge of the duties of his office heretofore, by taking him to stockton, where he could be subjected to indignities and humiliation, and where they might compass his death. "that the said conspiracy is a crime against the united states, under the laws thereof, and was to be executed by an abuse of the process of the state court, two of said conspirators being officers of the said county of san joaquin, one the district attorney and the other a justice of the peace, the one to direct and the other to issue the warrant upon which your petitioner could be arrested. "and the petitioner further avers that the issue of said writ of _habeas corpus_ and the discharge of your petitioner thereunder were and are essential to defeat the execution of the said conspiracy. "and your petitioner further avers that the accusation of crime against him, upon which said warrant was issued, is a malicious and malignant falsehood, for which there is not even a pretext; that he neither advised nor had any knowledge of the intention of any one to commit the act which resulted in the death of david s. terry, and that he has not carried or used any arm or weapon of any kind for nearly thirty years. "all of which your petitioner is ready to establish by full and competent proof. "wherefore your petitioner prays that he may be discharged from said arrest and set at liberty. "stephen j. field." the facts alleged in this document were beyond dispute, and constituted an outrageous crime, and one for which the conspirators were liable to imprisonment for a term of six years, under section of the revised statutes of the united states. to this traverse the counsel for the sheriff filed a demurrer, on the ground that it did not appear by it that justice field was in custody for an act done or omitted in pursuance of any law of the united states, or of any order or process or decree of any court or judge thereof, and it did not appear that he was in custody in violation of the constitution or any law or treaty of the united states. the case was thereupon submitted with leave to counsel to file briefs at any time before the th of august, to which time the further hearing was adjourned. before that hearing the governor of the state addressed the following communication to the attorney-general: "executive department, "state of california, "sacramento, _august , _. "hon. a.g. johnston, "_attorney-general, sacramento_. "dear sir: the arrest of hon. stephen j. field, a justice of the supreme court of the united states, on the unsupported oath of a woman who, on the very day the oath was taken, and often before, threatened his life, will be a burning disgrace to the state unless disavowed. i therefore urge upon you the propriety of at once instructing the district attorney of san joaquin county to dismiss the unwarranted proceedings against him. "the question of the jurisdiction of the state courts in the case of the deputy united states marshal, neagle, is one for argument. the unprecedented indignity on justice field does not admit of argument. "yours truly, "r.w. waterman, "_governor_." this letter of governor waterman rang out like an alarm bell, warning the chief law officer of the state that a subordinate of his was prostituting its judicial machinery to enable a base woman to put a gross indignity upon a justice of the supreme court of the united states, whom she had just publicly threatened to kill, and also to aid her in accomplishing that purpose. the wretched proceeding had already brought upon its authors indignant denunciation and merciless ridicule from every part of the union. the attorney-general responded to the call thus made upon him by instructing the district attorney to dismiss the charge against justice field, because no evidence existed to sustain it. the rash young district attorney lost no time in extricating himself from the position in which the arrest of justice field had placed him. on the th of august, upon his motion, and the filing of the attorney-general's letter, the charge against justice field was dismissed by the justice of the peace who had issued the warrant against him. the dismissal of this charge released him from the sheriff's claim to his custody, and the _habeas corpus_ proceedings in his behalf fell to the ground. on the th, the day appointed for the further hearing, the sheriff announced that in compliance with the order of the magistrate he released justice field from custody, whereupon the case of _habeas corpus_ was dismissed. in making the order, circuit judge sawyer severely animadverted on what he deemed the shameless proceeding at stockton. he said: "we are glad that the prosecution of mr. justice field has been dismissed, founded, as it was, upon the sole, reckless, and as to him manifestly false affidavit of one whose relation to the matters leading to the tragedy, and whose animosity towards the courts and judges who have found it their duty to decide against her, and especially towards mr. justice field, is a part of the judicial and notorious public history of the country. "it was, under the circumstances, and upon the sole affidavit produced, especially after the coroner's inquest, so far as mr. justice field is concerned, a shameless proceeding, and, as intimated by the governor of the commonwealth, if it had been further persevered in, would have been a lasting disgrace to the state. "while a justice of the supreme court of the united states, like every other citizen, is amenable to the laws, he is not likely to commit so grave an offense as murder, and should he be so unfortunate as to be unavoidably involved in any way in a homicide, he could not afford to escape, if it were in his power to do so; and when the act is so publicly performed by another, as in this instance, and is observed by so many witnesses, the officers of the law should certainly have taken some little pains to ascertain the facts before proceeding to arrest so distinguished a dignitary, and to attempt to incarcerate him in prisons with felons, or to put him in a position to be further disgraced, and perhaps assaulted by one so violent as to be publicly reported, not only then but on numerous previous occasions, to have threatened his life. "we are extremely gratified to find that, through the action of the chief magistrate, and the attorney-general, a higher officer of the law, we shall be spared the necessity of further inquiring as to the extent of the remedy afforded the distinguished petitioner, by the constitution and laws of the united states, or of enforcing such remedies as exist, and that the stigma cast upon the state of california by this hasty and, to call it by no harsher term, ill-advised arrest will not be intensified by further prosecution." thus ended this most remarkable attempt upon the liberty of a united states supreme court justice, under color of state authority, the execution of which would again have placed his life in great peril. the grotesque feature of the performance was aptly presented by the following imaginary dialogue which appeared in an eastern paper: newsboy: "man tried to kill a judge in california!" customer: "what was done about it?" newsboy: "oh! they arrested the judge." the illegality of justice field's arrest will be perfectly evident to whoever will read sections , , and of the penal code of california. these sections provide that no warrant can be issued by a magistrate until he has examined, on oath, the informant, taken depositions setting forth the facts tending to establish the commission of the offense and the guilt of the accused, and himself been satisfied by these depositions that there is reasonable ground that the person accused has committed the offense. none of these requirements had been met in justice field's case. it needs no lawyer to understand that a magistrate violates the plain letter as well as the spirit of these provisions of law when he issues a warrant without first having before him some evidence of the probable, or at least the possible, guilt of the accused. if this were otherwise, private malice could temporarily sit in judgment upon the object of its hatred, however blameless, and be rewarded for perjury by being allowed the use of our jails as places in which to satisfy its vengeance. such a view of the law made sarah althea the magistrate at stockton on the th of august, and justice swain her obsequious amanuensis. such a view of the law would enable any convict who had just served a term in the penitentiary to treat himself to the luxury of dragging to jail the judge who sentenced him, and keeping him there without bail as long as the magistrate acting for him could be induced to delay the examination. the arrest of justice field was an attempt to kidnap him for a foul purpose, and if the united states circuit judge had not released him he would have been the victim of as arbitrary and tyrannical treatment as is ever meted out in russia to the most dangerous of nihilists, to punish him for having narrowly escaped assassination by no act or effort of his own. chapter xviii. habeas corpus proceedings in neagle's case. this narrative would not be complete without a statement of the proceedings in the united states circuit court, and in the united states supreme court on appeal, in the _habeas corpus_ proceedings in the case of neagle, the deputy marshal, whose courageous devotion to his official duties had saved the life of justice field at the expense of that of his would-be assassin. we have already seen that neagle, being in the custody of the sheriff of san joaquin county, upon a charge of murder in the shooting of judge terry, had presented a petition to the united states circuit court for a writ of _habeas corpus_ to the end that he might thereby be restored to his liberty. a writ was issued, and upon its return, august th, the sheriff of san joaquin county produced neagle and a copy of the warrant under which he held him in custody, issued by the justice of the peace of that county, and also of the affidavit of sarah althea terry, upon which the warrant was granted. neagle being desirous of traversing the return of the sheriff, further proceedings were adjourned until the d of the month, and in the meantime he was placed in the custody of the united states marshal for the district. on the d a traverse of the return was filed by him stating the particulars of the homicide with which he was charged as narrated above, and averring that he was at the time of its commission a deputy marshal of the united states for the district, acting under the orders of his superior, and under the directions of the attorney-general of the united states in protecting the associate justice, whilst in the discharge of his duties, from the threatened assault and violence of terry, who had declared that on meeting the justice he would insult, assault, and kill him, and that the homicide with which the petitioner is charged was committed in resisting the attempted execution of these threats in the belief that terry intended at the time to kill the justice, and that but for such homicide he would have succeeded in his attempt. these particulars are stated with great fullness of detail. to this traverse, which was afterwards amended, but not in any material respect, a demurrer was interposed for the sheriff by the district attorney of san joaquin county. its material point was that it did not appear from the traverse that neagle was in the custody of the sheriff for an act done or omitted in pursuance of any law of the united states, or any order, process, or decree of any court or judge thereof, or in violation of the constitution or a treaty of the united states. the court then considered whether it should hear testimony as to the facts of the case, or proceed with the argument of the demurrer to the traverse. it decided to take the testimony, and to hear counsel when the whole case was before it, on the merits as well as on the question of jurisdiction. the testimony was then taken. it occupied several days, and brought out strongly the facts which have been already narrated, and need not here be repeated. when completed, the question of the jurisdiction of the circuit court of the united states to interfere in the matter was elaborately argued by the attorney-general of the state, and special counsel who appeared with the district attorney of san joaquin county on behalf of the state, they contending that the offense, with which the petitioner was charged, could only be inquired into before a tribunal of the state. mr. carey, united states district attorney, and messrs. herrin, mesick, and wilson, special counsel, appeared on behalf of the petitioner, and contended for the jurisdiction, and for the discharge of the petitioner upon the facts of the case. they did not pretend that any person in the state, be he high or low, might not be tried by the local authorities for a crime committed against the state, but they did contend that when the alleged crime consisted in an act which was claimed to have been done in the performance of a duty devolving upon him by a law of the united states, it was within the competency of their courts to inquire, in the first instance, whether that act thus done was in the performance of a duty devolving upon him; and if it was, that the alleged offender had not committed a crime against the state, and was entitled to be discharged. their arguments were marked by great ability and learning, and their perusal would be interesting and instructive, but space will not allow me to give even a synopsis of them. the court, in deciding the case, went into a full and elaborate consideration, not only of its jurisdiction, but of every objection on the merits presented by counsel on behalf of the state. only a brief outline can be given. the court held that it was within the competency of the president, and of the attorney-general as the head of the department of justice, representing him, to direct that measures be taken for the protection of officers of the government whilst in the discharge of their duties, and that it was specially appropriate that such protection should be given to the justices of the supreme court of the united states, whilst thus engaged in their respective circuits, and in passing to and from them; that the attorney-general, representing the president, was fully justified in giving orders to the marshal of the california district to appoint a deputy to look specially to the protection of justices field and sawyer from assault and violence threatened by terry and his wife; and that the deputy marshal, acting under instructions for their protection, was justified in any measures that were necessary for that purpose, even to taking the life of the assailant. the court recognized that the government of the united states exercised full jurisdiction, within the sphere of its powers, over the whole territory of the country, and that when any conflict arose between the state and the general government in the administration of their respective powers, the authority of the united states must prevail, for the constitution declares that it and the laws of the united states in pursuance thereof "shall be the supreme law of the land, and that the judges in every state shall be bound thereby, anything in the constitution and laws of any state to the contrary notwithstanding." the court quoted the language of the supreme court in tennessee v. davis ( u.s. , ), that "it [the general government] can act only through its officers and agents, and they must act within the states. if, when thus acting and within the scope of their authority, those officers can be arrested and brought to trial in a state court, for an alleged offense against the law of the state, yet warranted by the federal authority they possess, and if the general government is powerless to interfere at once for their protection--if their protection must be left to the action of the state court--the operations of the general government may, at any time, be arrested at the will of one of its members. the legislation of a state may be unfriendly. it may affix penalties to acts done under the immediate direction of the national government and in obedience to its laws. it may deny the authority conferred by those laws. the state court may administer not only the laws of the state, but equally federal law, in such a manner as to paralyze the operations of the government. and even if, after trial and final judgment in the state court, a case can be brought into the united states court for review, the officer is withdrawn from the discharge of his duty during the pendency of the prosecution, and the exercise of acknowledged federal power arrested. we do not think such an element of weakness is to be found in the constitution. the united states is a government with authority extending over the whole territory of the union, acting upon the states and upon the people of the states. while it is limited in the number of its powers, so far as its sovereignty extends, it is supreme. no state government can exclude it from the exercise of any authority conferred upon it by the constitution, obstruct its authorized officers against its will, or withhold from it, for a moment, the cognizance of any subject which that instrument has committed to it." to this strong language the circuit court added: "the very idea of a government composed of executive, legislative, and judicial departments necessarily comprehends the power to do all things, through its appropriate officers and agents, within the scope of its general governmental purposes and powers, requisite to preserve its existence, protect it and its ministers, and give it complete efficiency in all its parts. it necessarily and inherently includes power in its executive department to enforce the laws, keep the national peace with regard to its officers while in the line of their duty, and protect by its all-powerful arm all the other departments and the officers and instrumentalities necessary to their efficiency while engaged in the discharge of their duties." in language attributed to mr. ex-secretary bayard, used with reference to this very case, which we quote, not as a controlling judicial authority, but for its intrinsic, sound, common sense, "the robust and essential principle must be recognized and proclaimed, that the inherent powers of every government which is sufficient to authorize and enforce the judgment of its courts are, equally, and at all times, and in all places, sufficient to protect the individual judge who, fearlessly and conscientiously in the discharge of his duty, pronounces those judgments." in reference to the duties of the president and the powers of the attorney-general under him, and of the latter's control of the marshals of the united states, the court observed that the duties of the president are prescribed in terse and comprehensive language in section of article ii of the constitution, which declares that "he shall take care that the laws be faithfully executed;" that this gives him all the authority necessary to accomplish the purposes intended--all the authority necessarily inherent in the office, not otherwise limited, and that congress, added the court, in pursuance of powers vested in it, has provided for seven departments, as subordinate to the president, to aid him in performing his executive functions. section , r.s., provides that "there shall be at the seat of government an executive department to be known as the department of justice, and an attorney-general, who shall be the head thereof." he thus has the general supervision of the executive branch of the national judiciary, and section provides, as a portion of his powers and duties, that he "shall exercise general superintendence and direction over the attorneys and marshals of all the districts in the united states and the territories as to the manner of discharging their respective duties; and the several district attorneys and marshals are required to report to the attorney-general an account of their official proceedings, and of the state and condition of their respective offices, in such time and manner as the attorney-general may direct." section , r.s., provides that "the marshals and their deputies shall have, in each state, the same powers in executing the laws of the united states as the sheriffs and their deputies in such state may have, by law, in executing the laws thereof." by section of the penal code of california the sheriff is a "peace officer," and by section of the political code he is "to preserve the peace" and "prevent and suppress breaches of the peace." the marshal is, therefore, under the provisions of the statute cited, "a peace officer," so far as keeping the peace in any matter wherein the powers of the united states are concerned, and as to such matters he has all the powers of the sheriff, as peace officer under the laws of the state. he is, in such matters, "to preserve the peace" and "prevent and suppress breaches of the peace." an assault upon or an assassination of a judge of a united states court while engaged in any matter pertaining to his official duties, on account or by reason of his judicial decisions, or action in performing his official duties, is a breach of the peace, affecting the authority and interests of the united states, and within the jurisdiction and power of the marshal or his deputies to prevent as a peace officer of the national government. such an assault is not merely an assault upon the person of the judge as a man; it is an assault upon the national judiciary, which he represents, and through it an assault upon the authority of the nation itself. it is, necessarily, a breach of the national peace. as a national peace officer, under the conditions indicated, it is the duty of the marshal and his deputies to prevent a breach of the national peace by an assault upon the authority of the united states, in the person of a judge of its highest court, while in the discharge of his duty. if this be not so, in the language of the supreme court, "why do we have marshals at all?" what useful functions can they perform in the economy of the national government? section of the revised statutes also declares that "it shall be the duty of the marshal of each district to attend the district and circuit courts when sitting therein, and to execute throughout the district all lawful precepts directed to him and issued under the authority of the united states, and he shall have power to command all necessary assistance in the execution of his duty." there is no more authority specifically conferred upon the marshal by this section to protect the judge from assassination in open court, without a specific order or command, than there is to protect him out of court, when on the way from one court to another in the discharge of his official duties. the marshals are in daily attendance upon the judges, and performing official duties in their chambers. yet no statute specifically points out those duties or requires their performance. indeed, no such places as chambers for the circuit judges or circuit justices are mentioned at all in the statutes. yet the marshal is as clearly authorized to protect the judges there as in the court-room. all business done out of court by the judge is called chamber business. but it is not necessary to be done in what is usually called chambers. chamber business may be done, and often is done, on the street, in the judge's own house, at the hotel where he stops, when absent from home, or it may be done in transitu, on the cars in going from one place to another within the proper jurisdiction to hold court. mr. justice field could, as well, and as authoritatively, issue a temporary injunction, grant a writ of _habeas corpus_, an order to show cause, or do any other chamber business for the district in the dining-room at lathrop, as at his chambers in san francisco, or in the court-room. the chambers of the judge, where chambers are provided, are not an element of jurisdiction, but are a convenience to the judge, and to suitors--places where the judge at proper times can be readily found, and the business conveniently transacted. but inasmuch as the revised statutes of the united states (sec. ) declare that the writ of _habeas corpus_ shall not extend to "a prisoner in jail unless where he is in custody--for an act done or omitted in pursuance of a _law_ of the united states, or of an order, process, or decree of a court or judge thereof, or in custody in violation of the constitution or of a law or treaty of the united states," it was urged in the argument by counsel for the state that there is no statute which specifically makes it the duty of a marshal or deputy marshal to protect the judges of the united states whilst out of the court-room, travelling from one point to another in their circuits, on official business, from the violence of litigants who have become offended at the adverse decisions made by them in the performance of their judicial duties, and that such officers are not within the provisions of that section. to this the court replied that the language of the section is, "an act done in pursuance of a _law_ of the united states"--not in pursuance of a statute of the united states; and that the statutes do not present in express terms all the law of the united states; that their incidents and implications are as much a part of the law as their express provisions; and that when they prescribe duties providing for the accomplishment of certain designated objects, or confer authority in general terms, they carry with them all the powers essential to effect the ends designed. as said by chief justice marshall in osborn v. bank of the united states ( wheaton, - ), "it is not unusual for a legislative act to involve consequences which are not expressed. an officer, for example, is ordered to arrest an individual. it is not necessary, nor is it usual, to say that he shall not be punished for obeying this order. his security is implied in the order itself. it is no unusual thing for an act of congress to imply, without expressing, this very exemption from state control, which is said to be so objectionable in this instance. the collectors of the revenue, the carriers of the mail, the mint establishment, and all those institutions which are public in their nature, are examples in point. it has never been doubted that all who are employed in them are protected while in the line of duty; and yet this protection is not expressed in any act of congress. it is incidental to, and is implied in, the several acts by which these institutions are created; and is secured to the individuals employed in them by the judicial power alone--that is, the judicial power is the instrument employed by the government in administering this security." upon this the circuit court observed: "if the officers referred to in the preceding passage are to be protected while in the line of their duty, without any special law or statute requiring such protection, the judges of the courts, the principal officers in a department of the government second to no other, are also to be protected, and their executive subordinates--the marshals and their deputies--shielded from harm by the national laws while honestly engaged in protecting the heads of the courts from assassination."[ ] to the position that the preservation of the peace of the state is devolved solely upon the officers of the state, and not in any respect upon the marshals of the united states, the court replied: this position is already answered by what has been said. but it is undoubtedly true that it was the imperative duty of the state to preserve the public peace and amply protect the life of justice field, _but it did not do it_, and had the united states relied upon the state to keep the peace as to him--one of the justices of the highest court--in relation to matters concerning the performance of his official duties, they would have leaned upon a broken reed. the result of the efforts to obtain an officer from the state to assist in preserving the peace and protecting him at lathrop was anything but successful. the officer of the state at lathrop, instead of arresting the conspirator of the contemplated murderer, the wife of the deceased, arrested the officer of the united states, assigned by the government to the special duty of protecting the justice against the very parties, while in the actual prosecution of duties assigned to him, without warrant, thereby leaving his charge without the protection provided by the government he was serving, at a time when such protection seemed most needed. and, besides, the use of the state police force beyond the limits of a county for the protection of justice field would have been impracticable, as the powers of the sheriff would have ended at its borders, and of other township and city peace officers at the boundaries of their respective townships and cities. only a united states marshal or his deputy could have exercised these official functions throughout the judicial district, which embraces many counties. the only remedy suggested on the part of the state was to arrest the deceased and hold him to bail to keep the peace under section of the penal code, the highest limit of the amount of bail being $ , . but although the threats are conceded to have been publicly known in the state, no state officer took any means to provide this flimsy safeguard. and the execution of a bond in this amount to keep the peace would have had no effect in deterring the intended assailants from the, commission of the offense contemplated, when the penalties of the law would not deter them. as to the deliberation and wisdom of neagle's conduct under the circumstances, the court, after stating the established facts, concludes as follows: "when the deceased left his seat, some thirty feet distant, walked stealthily down the passage in the rear of justice field and dealt the unsuspecting jurist two preliminary blows, doubtless by way of reminding him that the time for vengeance had at last come, justice field was already at the traditional 'wall' of the law. he was sitting quietly at a table, back to the assailant, eating his breakfast, the side opposite being occupied by other passengers, some of whom were women, similarly engaged. when, in a dazed condition, he awoke to the reality of the situation and saw the stalwart form of the deceased with arm drawn back for a final mortal blow, there was no time to get under or over the table, had the law, under any circumstances, required such an act for his justification. neagle could not seek a 'wall' to justify his acts without abandoning his charge to certain death. when, therefore, he sprang to his feet and cried, 'stop! i am an officer,' and saw the powerful arm of the deceased drawn back for the final deadly stroke instantly change its direction to his left breast, apparently seeking his favorite weapon, the knife, and at the same time heard the half-suppressed, disappointed growl of recognition of the man who, with the aid of half a dozen others, had finally succeeded in disarming him of his knife at the court-room a year before, the supreme moment had come, or, at least, with abundant reason he thought so, and fired the fatal shot. the testimony all concurs in showing this to be the state of facts, and the almost universal consensus of public opinion of the united states seems to justify the act. on that occasion a second, or two seconds, signified, at least, two valuable lives, and a reasonable degree of prudence would justify a shot one or two seconds too soon rather than a fraction of a second too late. upon our minds the evidence leaves no doubt whatever that the homicide was fully justified by the circumstances. neagle on the scene of action, facing the party making a murderous assault, knowing by personal experience his physical powers and his desperate character, and by general reputation his life-long habit of carrying arms, his readiness to use them, and his angry, murderous threats, and seeing his demoniac looks, his stealthy assault upon justice field from behind, and, remembering the sacred trust committed to his charge--neagle, in these trying circumstances, was the party to determine when the supreme moment for action had come, and if he, honestly, acted with reasonable judgment and discretion, the law justifies him, even if he erred. but who will have the courage to stand up in the presence of the facts developed by the testimony in this case, and say that he fired the smallest fraction of a second too soon? "in our judgment he acted, under the trying circumstances surrounding him, in good faith and with consummate courage, judgment, and discretion. the homicide was, in our opinion, clearly justifiable in law, and in the forum of sound, practical common sense commendable. this being so, and the act having been 'done * * * in pursuance of a law of the united states,' as we have already seen, it cannot be an offense against, and he is not amenable to, the laws of the state." the petitioner was accordingly discharged from arrest. [ ] note.--i find the following apt illustrations of this doctrine in a journal of the day: if a military or naval officer of the united states, in the necessary suppression of a mutiny or enforcement of obedience, should wound or take the life of a subordinate, would it be contended that, if arrested for that act by the state authority, he could not be released on _habeas corpus_, because no statute expressly authorized the performance of the act? if the commander of a revenue cutter should be directed to pursue and retake a vessel which, after seizure, had escaped from the custody of the law, and the officer in the performance of that duty, and when necessary to overcome resistance, should injure or kill a member of the crew of the vessel he was ordered to recapture, and if for that act he should be arrested and accused of crime under the state authority, will any sensible person maintain that the provisions of the _habeas corpus_ act could not be invoked for his release, notwithstanding that no statute could be shown which directly authorized the act for which he was arrested? if by command of the president a company of troops were marched into this city to protect the subtreasury from threatened pillage, and in so doing life were taken, would not the act of the officer who commanded the troops be an act done in pursuance of the laws of the united states, and in the lawful exercise of its authority? could he be imprisoned and tried before a state jury on the charge of murder, and the courts of the united states be powerless to inquire into the facts on _habeas corpus_, and to discharge him if found to have acted in the performance of his duty? can the authority of the united states for the protection of their officers be less than their authority to protect their property? there appears to be but one rational answer to these questions. in all these cases the authority vested in the officer to suppress a mutiny, or to overtake and capture an escaped vessel, or to protect the subtreasury from threatened pillage, carries with it power to do all things necessary to accomplish the object desired, even the killing of the offending party. the law conferring the authority thus extended to the officer in these cases, is in the sense of the _habeas corpus_ act, a law of the united states to do all things necessary for the execution of that authority. chapter xix. expressions of public opinion. this case and all the attendant circumstances--the attempted assassination of justice field by his former associate, terry; the defeat of this murderous attempt by deputy marshal neagle; the arrest of justice field and the deputy marshal upon the charge of murder, and their discharge--created very great interest throughout the united states. they were the subject of articles in all the leading journals of the country; and numerous telegrams and letters of congratulation were sent to the justice on his escape from the murderous attempt. satisfaction was very generally expressed at the fate which terry met, and much praise was given to the courageous conduct of neagle and at the bearing of justice field under the trying circumstances. a few of the letters received by him are here given, and citations are made from some of the periodicals, which indicated the general sentiment of the country. letter from hon. t.f. bayard, ex-secretary of state: wilmington, delaware, _august , _. my dear brother field: i was absent from home when i first saw in the newspapers an account of the infamous assault of the terrys--husband and wife--upon you, and the prompt and courageous action of deputy marshal neagle that happily frustrated the iniquitous plot against your life. accept, my dear friend, my fervent congratulations on your escape from the designs of this madman and of the shameless creature who was his wife and accomplice. for the sake of our country and its reputation in the eyes of christendom, i am indeed grateful that this vile stab at its judicial power, as vested in your personality, miscarried, and that by good fortune the insane malice of a disappointed suitor should have been thwarted. your dignified courage in this tragical episode is most impressive, and, while it endears you the more to those who love you, will wring even from your foes a tribute of respect and admiration. passing over the arguments that may be wrought out of the verbiage of our dual constitution of government, the robust and essential principle _must_ be recognized and proclaimed--that the _inherent powers_ of every government which are sufficient to authorize and enforce the judgments of its courts are equally and at all times and in all places sufficient to protect the individual judge who fearlessly and conscientiously, in the discharge of his duty, pronounces those judgments. the case, my dear friend, is not yours alone; it is equally mine and that of every other american. a principle so vital to society, to the body politic, was never more dangerously and wickedly assailed than by the assault of terry and his wife upon you for your just and honorable performance of your duty as a magistrate. i can well comprehend the shock to which this occurrence has subjected you, and i wish i could be by your side to give you assurance orally (if any were needed) of that absolute sympathy and support to which you are so fully entitled. but these lines will perhaps suffice to make you feel the affectionate and steadfast regard i entertain for you, and which this terrible event has but increased. i cannot forbear an expression of the hope that the arguments of jurisdictional and other points which must attend the litigation and settlement of this tragedy may not be abated or warped to meet any temporary local or partisan demand. the voice of justice can never speak in clearer or more divine accents than when heard in vindication and honor of her own faithful ministers. ever, my dear judge field, sincerely yours, t.f. bayard. the hon. stephen j. field, _san francisco, cal_. letter from hon. e.j. phelps, former minister to england: burlington, vermont, _august , _. my dear judge field: pray let me congratulate you most heartily on the terry transaction. nothing that has ever occurred in the administration of justice has given me more satisfaction than this prompt, righteous, and effectual vindication through an officer of the court of the sanctity of the judiciary when in the discharge of its duty. what your marshal did was exactly the right thing, at the right time, and in the right way. i shall be most happy to join in a suitable testimonial to him, if our profession will, as they ought, concur in presenting it. * * * your own coolness and carriage in confronting this danger in the discharge of your duty must be universally admired, and will shed an additional lustre on a judicial career which was distinguished enough without it. you have escaped a great peril--acquired a fresh distinction--and vindicated most properly the dignity of your high station. i am glad to perceive that this is the general opinion. anticipating the pleasure of seeing you in washington next term, i am always, dear sir, most sincerely yours, e.j. phelps. letter from hon. george f. hoar, senator from massachusetts: worcester, _august , _. my dear judge field: i think i ought to tell you, at this time, how high you stand in the confidence and reverence of all good men here, how deeply they were shocked by this outrage attempted not so much on you as on the judicial office itself, and how entirely the prompt action of the officer is approved. i hope you may long be spared to the public service. i am faithfully yours, geo. f. hoar. letter from hon. j. proctor knott, for many years a member of congress from kentucky and chairman of the judiciary committee of the house of representatives, and afterwards governor of kentucky: lebanon, kentucky, _september , _. my dear judge: * * * i have had it in mind to write you from the moment i first heard of your fortunate escape from the fiendish assassination with which you were so imminently threatened, but i have, since the latter part of may, been suffering from a most distressing affection of the eyes which has rendered it extremely difficult, and frequently, for days together, quite impossible to do so. even now, though much improved, i write in great pain, but i cannot get my consent to delay it longer on any account. you are to be congratulated, my dear friend, and you know that no one could possibly do so with more genuine, heartfelt sincerity than i do myself. * * * i had been troubled, ever since i saw you had gone to your circuit, with apprehensions that you would be assassinated, or at least subjected to some gross outrage, and cannot express my admiration of the serene heroism with which you went to your post of duty, determined not to debase the dignity of your exalted position by wearing arms for your defense, notwithstanding you were fully conscious of the danger which menaced you. it didn't surprise me, however; for i knew the stuff you were made of had been tested before. but i _was_ surprised and disgusted, too, that _you_ should have been charged or even suspected of anything wrong in the matter. the magistrate who issued the warrant for your arrest may possibly have thought it his duty to do so, without looking beyond the "railing accusation" of a baffled and infuriated murderess, which all the world instinctively knew to be false, yet i suppose there is not an intelligent man, woman, or child on the continent who does not consider it an infamous and unmitigated outrage, or who is not thoroughly satisfied that the brave fellow who defended you so opportunely was legally and morally justifiable in what he did. i have not been in a condition to _think_ very coherently, much less to read anything in relation to the question of jurisdiction raised by the state authorities in the _habeas corpus_ issued in your behalf by the u.s. circuit court, and it may be that, from the mere newspaper's reports that have reached me, i have been unable to fully apprehend the objections which are made to the courts hearing all the facts on the trial of the writ; but it occurs to me as a plain principle of common sense that the federal government should not only have the power, but that it is necessary to its own preservation, to protect its officers from being wantonly or maliciously interfered with, hindered or obstructed in the lawful exercises of their official duties, not arbitrarily of course, but through its regularly constituted agencies, and according to the established principles of law; and where such obstruction consists in the forcible restraint of the officer's liberty, i see no reason why the federal judiciary should not inquire into it on _habeas corpus_, when it is alleged to be not only illegal but contrived for the very purpose of hindering the officer in the discharge of his official duties, and impairing the efficiency of the public service. it is true that in such an investigation a real or apparent conflict between state and federal authority may be presented, which a due regard to the respective rights of the two governments would require to be considered with the utmost caution, such caution, at least, as it is fair to presume an intelligent court would always be careful to exercise, in view of the absolute importance of maintaining as far as possible the strictest harmony between the two jurisdictions. yet those rights are determined and by fixed legal principles, which it would be impossible for a court to apply in any case without a competent knowledge of the _facts_ upon which their application in the particular case might depend. for instance, if your court should issue a writ of _habeas corpus_ for the relief of a federal officer upon the averments in his petition that he was forcibly and illegally restrained of his liberty for the purpose of preventing him from performing his official duties, and it should appear in the return to the writ that the person detaining the prisoner was a ministerial officer of the state government authorized by its laws to execute its process, and that he held the petitioner in custody by virtue of a warrant of arrest in due form, issued by a competent magistrate, to answer for an offense against the state laws, i presume the court, in the absence of any further showing, would instantly remand the petitioner to the custody of the state authorities without regard to his official position or the nature of his public duties. but, on the other hand, suppose there should be a traverse of the return, averring that the warrant of the arrest, though apparently regular in all respects, was in truth but a fraudulent contrivance designed and employed for the sole purpose of hindering and obstructing the petitioner in the performance of his duties as an officer of the government of the united states; that the magistrate who issued it, knowingly and maliciously abused his authority for that purpose in pursuance of a conspiracy between himself and others, and not in good faith, and upon probable cause to bring the prisoner to justice for a crime against the state. how then? here is an apparent conflict--not a _real_ one--between the rights of the government of the united states and the government of the state. the one has a right to the service of its officer, and the right to prevent his being unlawfully interfered with or obstructed in the performance of his official duties; the other has the right to administer its laws for the punishment of crime through its own tribunals; but it must be observed that the former has no right to shield one of its officers from a valid prosecution for a violation of the laws of the latter not in conflict with the constitution and laws of the united states, nor can it be claimed that the latter has any right to suffer its laws to be prostituted, and its authority fraudulently abused, in aid of a conspiracy to defeat or obstruct the functions of the former. such an abuse of authority is not, and cannot be in any sense, a _bona fide_ administration of state laws, but is itself a crime against them. what, then, would your court do? you would probably say: if it is true that this man is held without probable cause under a fraudulent warrant, issued in pursuance of a conspiracy to which the magistrate who issued it was a party, to give legal color to a malicious interference with his functions as a federal official, he is the victim of a double crime--a crime against the united states and a crime against the state--and it is not only our duty to vindicate his right to the free exercise of his official duties, but the right of the federal government to his services, and its right to protect him in the legal performance of the same. but if, on the other hand, he has raised a mere "false clamor"--if he is held in good faith upon a valid warrant to answer for a crime committed against the state, it is equally as obligatory upon us to uphold its authority, and maintain its right to vindicate its own laws through its own machinery. to determine between these two hypotheses we must know the _facts_. * * * the same simple reasoning, it occurs to me, applies to mr. neagle's case. whether he acted in the line of his duty under the laws of the united states, as an officer of that government, is clearly a question within the jurisdiction of the federal judiciary. if he _did_, he cannot be held responsible to the state authority; if he did _not_, he should answer, if required, before its tribunals of justice. i presume no court of ordinary intelligence, state or federal, would question these obvious principles; but how _any_ court could determine whether he did or did not act in the line of his official duty under the laws of his government without a judicial inquiry into the _facts_ connected with the transaction i am unable to imagine. * * * i am, as always, your faithful friend, j. proctor knott. hon. s.j. field, _associate justice supreme court u.s._ letter from hon. william d. shipman, formerly u.s. district judge for the district of connecticut: new york, _october , _. dear judge: * * * * * i have attentively read judge sawyer's opinion in the neagle _habeas corpus_ case, and i agree with his main conclusions. it seems to me that the whole question of jurisdiction turns on the fact whether you were, at the time the assault was made on you, engaged in the performance of your official duty. you had been to los angeles to hold court there and had finished that business. in going there you were performing an official duty as much as you were when you had held court there. it was then your official duty to go from los angeles to san francisco and hold court there. you could not hold court at the latter place without going, and you were engaged in the line of your official duty in performing that journey for that purpose, as you were in holding the court after you got there. the idea that a judge is not performing official duty when he goes from court-house to court-house or from court-room to court-room in his own circuit seems to me to be absurd. the distance from one court-house or court-room to another is not material, and does not change or modify the act or duty of the judge. now, neagle was an officer of your court, charged with the duty of protecting your person while you were engaged in the performance of your official duty. _his_ duty was to see to it that you were not unlawfully prevented from performing _your_ official duty--not hindered or obstructed therein. for the state authorities to indict him for repelling the assault on you in the only way which he could do so effectually seems to me to be as unwarranted by law as it would be for them to indict him for an assault on terry when he assisted in disarming the latter in the court-room last year. when, therefore, it was conceded on the argument that if the affair at lathrop had taken place in the court-room during the sitting of the court, the jurisdiction of the circuit court would be unquestionable, it is difficult for me to see why the whole question of federal jurisdiction was not embraced in that concession. assassinating a judge _on_ the bench would no more obstruct and defeat public justice than assassinating him on his way to the bench. in each case he is _proceeding in the line of official duty imposed on him by law and_ his official oath. the law requires him to go to court wherever the latter is held, and he is as much engaged in performing the duty thus imposed on him while he is proceeding to the place of his judicial labors as he is in performing the latter after he gets there. it would, therefore, seem to go without saying that any acts done in defense and protection of the judge in the performance of the duties of his office must pertain to the exclusive jurisdiction of the court of which he forms a part. the fact that the assault on you was avowedly made in revenge for your judicial action in a case heard by you gives a darker tinge to the deed, but, perhaps, does not change the legal character of the assault itself. that neagle did his whole duty, and in no way exceeded it, is too plain for argument. yours faithfully, w.d. shipman mr. justice field. letter from james c. welling, president of columbian university, washington: hartford, _august , ._ my dear judge: it is a relief to know that justice, as well as the honored justice of our supreme judiciary, has been avenged by the pistol-shot of neagle. the life of terry has long since been forfeited to law, to decency, and to morals. he has already exceeded the limit assigned by holy scripture to men of his ilk. "the bloody-minded man shall not live out half his days." the mode of his death was in keeping with his life. men who break all the laws of nature should not expect to die by the laws of nature. in all this episode you have simply worn the judicial ermine without spot or stain. you defeated a bold, bad man in his machinations, and the enmity you thereby incurred was a crown of honor. i am glad that you are to be no longer harassed by the menace of this man's violence, for such a menace is specially trying to a minister of the law. we all know that judge field the _man_ would not flinch from a thousand terrys, but judge field the _justice_ could hardly take in his own hands the protection of his person, where the threatened outrage sprang _entirely_ from his official acts. i wish, therefore, to congratulate you on your escape alike from the violence of terry and from the necessity of killing him with your own hands. it was meet that you should have been defended by an executive officer of the court assailed in your person. for doubtless terry, and the hag who was on the hunt with him, were minded to murder you. convey my cordial felicitations to mrs. field, and believe me ever, my dear mr. justice, your faithful friend, james c. welling. mr. justice field. letter from right rev. b. wistar morris, episcopal bishop of oregon: bishopcroft, portland, oregon, _august , _. my dear judge field: i hope a word of congratulation from your oregon friends for your escape in the recent tragedy will not be considered an intrusion. of course we have all been deeply interested in its history, and proud that you were found as you were, without the defenses of a bully. i will not trespass further on your time than to subscribe myself, very truly your friend, b. wistar morris. mr. justice field. a copy of the following card was enclosed in this letter: an unarmed justice. portland oregon, _august _. _to the editor of the oregonian_: there is one circumstance in the history of the field and terry tragedy that seems to me is worthy of more emphatic comment than it has yet received. i mean the fact that judge field had about his person no weapon of defense whatever, though he knew that this miserable villain was dogging his steps for the purpose of assaulting him, perhaps of taking his life. his brother, mr. cyrus w. field, says: "it was common talk in the east here, among my brother's friends, that terry's threats to do him bodily harm were made with the full intent to follow them up. terry threatened openly to shoot the justice, and we, who knew him, were convinced he would certainly do it if he ever got a chance. "i endeavored to dissuade my brother from making the trip west this year, but to no purpose, and he said, 'i have a duty to perform there, and this sort of thing can't frighten me away. i know terry will do me harm if he gets a chance, and as i shall be in california some time, he will have chances enough. let him take them.' "when urged to arm himself he made the same reply. he said that when it came to such a pass in this country that judges find it necessary to go armed, it will be time to close the courts themselves." this was a manly and noble reply and must recall to many minds that familiar sentiment: "he is thrice armed who has his quarrel just." with the daily and hourly knowledge that this assassin was ever upon his track, this brave judge goes about his duty and scorns to take to himself the defenses of a bully or a brigand; and in doing so, how immeasurably has he placed himself above the vile creature that sought his life, and all others who resort to deeds of violence. "they that take the sword shall perish with the sword," is a saying of wide application, and had it been so in this case; had this brave and self-possessed man been moved from his high purpose by the importunity of friends, and when slain by his enemy, had been found armed in like manner with the murderer himself, what a stain would it have been upon his name and honor? and how would our whole country have been disgraced in the eyes of the civilized world, that her highest ministers of justice must be armed as highwaymen as they go about their daily duties! well said this undaunted servant of the state: "then will it be time to close the courts themselves." may we not hope, mr. editor, that this example of one occupying this high place in our country may have some influence in staying the spirit and deeds of violence now so rife, and that they who are so ready to resort to the rifle and revolver may learn to regard them only as the instruments of the coward or the scoundrel? b. wistak morris. the citations given below from different journals, published at the time, indicated the general opinion of the country. with rare exceptions it approved of the action of the government, the conduct of neagle, and the bearing of justice field. the _alta california_, a leading paper in california, had, on august , , the day following the tragedy, the following article: the terry tragedy. the killing of david s. terry by the united states marshal david neagle yesterday was an unfortunate affair, regretted, we believe, by no one more than by justice field, in whose defense the fatal shot was fired. there seems, however, to be an almost undivided sentiment that the killing was justifiable. every circumstance attending the tragedy points to the irresistible conclusion that there was a premeditated determination on the part of terry and his wife to provoke justice field to an encounter, in which terry might either find an excuse for killing the man against whom he had threatened vengeance, or in which his wife might use the pistol which she always carries, in the pretended defense of her husband. for some time past it has been feared that a meeting between terry and justice field would result in bloodshed. there is now indisputable proof that terry had made repeated threats that he would assault justice field the first time he met him off the bench, and that if the judge resisted he would kill him. viewed in the light of these threats, terry's presence on the same train with justice field will hardly be regarded as accidental, and his actions in the breakfast-room at lathrop were directly in line with the intentions he had previously expressed. neagle's prompt and deadly use of his revolver is to be judged with due reference to the character and known disposition of the man with whom he had to deal and to his previous actions and threats. he was attending justice field, against the will of the latter and in spite of his protest, in obedience to an order from the attorney-general of the united states to marshal franks to detail a deputy to protect the person of justice field from terry's threatened violence. a slap in the face may not, under ordinary circumstances, be sufficient provocation to justify the taking of human life; but it must be remembered that there were no ordinary circumstances and that terry was no ordinary man. terry was a noted pistol-shot; it was known that he invariably carried arms and that he boasted of his ability to use them. if on this occasion he was unarmed, as mrs. terry asserts,[ ] neagle had no means of knowing that fact; on the contrary, to his mind every presumption was in favor of the belief that he carried both pistol and knife, in accordance with his usual habit. as a peace officer, even apart from the special duty which had been assigned to him, he was justified in taking the means necessary to prevent terry from continuing his assault; but the means necessary in the case of one man may be wholly inadequate with a man bearing the reputation of david s. terry, a man who only a few months previously had drawn a knife while resisting the lawful authority of another united states officer. it is true that if terry was unarmed, the deputy marshal might have arrested him without taking his life or seriously endangering his own; but terry was a man of gigantic stature, and though aged, in possession of a giant's strength; and there is no one who was acquainted with him, or has had opportunity to learn his past history, who does not know that he was a desperate man, willing to take desperate chances and to resort to desperate means when giving way to his impulses of passion, and that any person who should at such a moment attempt to stay his hand would do so at the risk of his life. whether he had a pistol with him at that moment or not, there was every reason to believe that he was armed, and that the blow with his hand was intended only as the precursor to a more deadly blow with a weapon. at such moments little time is allowed for reflection. the officer of the law was called upon to act and to act promptly. he did so, and the life of david s. terry was the forfeit. he fell, a victim to his own ungovernable passions, urged on to his fate by the woman who was at once his wife and his client, and perhaps further incited by sensational newspaper articles which stirred up the memory of his resentment for fancied wrongs, and taunted him with the humiliation of threats unfulfilled. the close of judge terry's life ends a career and an era. he had the misfortune to carry into a ripened state of society the conditions which are tolerable only where social order is not fully established. restless under authority, and putting violence above law, he lived by the sword and has perished by it. that example which refused submission to judicial finalities was becoming offensive to california, but the incubus of physical fear was upon many who realized that the survival of frontier ways into non-frontier period was a damage to the state. but, be this as it may, the stubborn spirit that defied the law has fallen by the law. when justice field showed the highest judicial courage in the opening incidents of the tragedy that has now closed, the manhood of california received a distinct impetus. when the justice, with threats made against his life, returned to the state unarmed, and resentful of protection against assault, declaring that when judges must arm to defend themselves from assault offered in reprisal of their judicial actions society must be considered dissolved, he was rendering to our institutions the final and highest possible service. the event that followed, the killing of terry in the act of striking him the second time from behind, while he sat at table in a crowded public dining-room, was the act of the law. the federal department of justice, by its chief, the attorney-general of the united states, had ordered its officer, the united states marshal for the northern district of california, to take such means and such measures as might be necessary to protect the persons of the judges against assault by judge terry, in carrying out the threats that he had made. this order was from the executive arm of the government, and it was carried out to the letter. judge terry took the law into his own hands and fell. nothing can add to the lesson his fate teaches. it is established now that in california no man is above the law; that no man can affect the even poise of justice by fear. confiding in his own strength as superior to the law, david s. terry fell wretchedly. no more need be said. new california inscribes upon her shield, "obedience to the law the first condition of good citizenship," and the past is closed. _the record-union_ of sacramento, one of the leading papers of california, on august , , the day following the tragedy, had the following article under the head-- killing of judge terry. in the news columns of the _record-union_ will be found all the essential details of the circumstances of the killing of d.s. terry. it will be evident to the reader that they readily sap the whole case, and that there is no substantial dispute possible concerning the facts. these truths we assert, without fear of successful contradiction, establish the justifiableness of the act of the united states marshal who fired upon and killed terry. we think there will be no dispute among sensible men that a federal circuit judge or a justice of the supreme bench, passing from one portion of the circuit to another in which either is required to open a court and hear causes, and for the purpose of fully discharging his official duties, is while en route in the discharge of an official function, and constructively his court is open to the extent that an assault upon him, because of matters pending in his court, or because of judgments he has rendered or is to render, is an assault upon the court, and his bailiff or marshal detailed to attend the court or to aid in preserving the order and dignity of the court has the same right to protect him from assault then that he would have, had the judge actually reached his court-room. but further than this, we hold that in view of the undeniable fact that the justice had knowledge of the fact that the terrys, man and wife, had sworn to punish him; that they had indulged in threats against him of the most pronounced character; that they had boarded a train on which it is probable they knew he had taken passage from one part of his circuit to another in his capacity as a magistrate; in view of the fact that terry sought the first opportunity to approach and strike him, and that, too, when seated; and in view of the notorious fact that terry always went armed--the man who shot terry would have been justified in doing so had he not even been commissioned as an officer of the court. he warned the assailant to desist, and knowing his custom to go armed, and that he had threatened the justice, and terry refusing to restrain his blows, it was neagle's duty to save life, to strike down the assailant in the most effectual manner. men who, having the ability to prevent murder, stand by and see it committed, may well be held to accountability for criminal negligence. but in this case it is clear that murder was intended on the part of the terrys. one of them ran for her pistol and brought it, and would have reached the other's side with it in time, had she not been detained by strong men at the door. neagle saw this woman depart, and coupling it with the advance of terry, knew, as a matter of course, what it meant. he had been deputed by the chief law officer of the government--in view of previous assaults by the terrys and their threats and display of weapons in court--to stand guard over the judges and protect them. he acted, therefore, precisely as it was proper he should do. had he been less prompt and vigorous, all the world knows that not he but terry would to-day be in custody, and not terry but the venerable justice of the supreme court of the united states would to-day be in the coffin. these remarks have grown too extended for any elaboration of the moral of the tragedy that culminated in the killing of david s. terry yesterday. but we cannot allow the subject to be even temporarily dismissed without calling the thought of the reader to contemplation of the essential truth that society is bound to protect the judges of the courts of the land from violence and the threats of violence; otherwise the decisions of our courts must conform to the violence threatened, and there will be an end of our judicial system, the third and most valuable factor in the scheme of representative government. society cannot, therefore, punish, but must applaud the man who defends the courts of the people and the judges of those courts from such violence and threats of violence. for it must be apparent to even the dullest intellect that all such violence is an outrage upon the judicial conscience, and therefore involves and puts in peril the liberties of the people. the new orleans _times-democrat,_ in one of its issues at this period, used the following language: the judge in america who keeps his official ermine spotless, who faithfully attends to the heavy and responsible duties of his station, deserves that the people should guard the sanctity of his person with a strength stronger than armor of steel and readier than the stroke of lance or sword. though the judges be called to pass on tens of thousands of cases, to sentence to imprisonment or to death thousands of criminals, they should be held by the people safe from the hate and vengeance of those criminals as if they were guarded by an invulnerable shield. if judge field, of the supreme court, one of the nine highest judges under our republican government, in travelling recently over his circuit in california, had been left to the mercy of the violent man who had repeatedly threatened his life, who had proved himself ready with the deadly knife or revolver, it would have been a disgrace to american civilization; it would have been a stigma and stain upon american manhood; it would have shown that the spirit of american liberty, which exalts and pays reverence to our judiciary, had been replaced by a public apathy that marked the beginning of the decline of patriotism. judge field recognized this when, in being advised to arm himself in case his life was endangered, he uttered the noble words: "no, sir; i do not and will not carry arms, for when it is known that the judges of the court are compelled to arm themselves against assaults offered in consequence of their judicial action it will be time to dissolve the courts, consider the government a failure, and let society lapse into barbarism." that ringing sentence has gone to the remotest corner of the land, and everywhere it has gone it should fire the american heart with a proud resolve to protect forever the sanctity of our judiciary. had not neagle protected the person of judge field from the assault of a dangerous and violent ruffian, apparently intent on murder, by his prompt and decisive action, shooting the assailant down to his death, it is certain that other brave men would have rushed quickly to his rescue; but neagle's marvelous quickness forestalled the need of any other's action. the person of one of the very highest american judges was preserved unharmed, while death palsied the murderous hand that had sworn to take his life. that act of neagle's was no crime. it was a deed that any and every american should feel proud of having done. it was an act that should be applauded over the length and breadth of this great land. it should not have consigned him for one minute to prison walls. it should have lifted him high in the esteem of all the american people. when criminals turn executioners, and judges are the victims, we might as well close our courts and hoist the red flag of anarchy over their silent halls and darkened chambers. the new york _herald_, in its issue of august , , said: the sensation of the past week is a lesson in republicanism and a eulogium on the majesty of the law. it was not a personal controversy between stephen j. field and david s. terry. it was a conflict between law and lawlessness--between a judicial officer who represented the law and a man who sought to take it into his own hands. one embodied the peaceful power of the nation, the will of the people; the other defied that power and appealed to the dagger. justice field's whole course shows a conception of judicial duty that lends grandeur to a republican judiciary. it is an inspiring example to the citizens and especially to the judges of the country. he was reminded of the danger of returning to california while judge terry and his wife were at large. his firm answer was that it was his duty to go and his would go. he was then advised to arm himself for self-defense. his reply embodies a nobility that should make it historic: "when it comes to such a pass in this country that judges of the courts find it necessary to go armed it will be time to close the courts themselves." this sentiment was not born of any insensibility to danger; justice field fully realized the peril himself. but above all feeling of personal concern arose a lofty sense of the duty imposed upon a justice of the nation's highest court. the officer is a representative of the law--a minister of peace. he should show by his example that the law is supreme; that all must bow to its authority; that all lawlessness must yield to it. when judges who represent the law resort to violence even in self-defense, the pistol instead of the court becomes the arbiter of controversies, and the authority of the government gives way to the power of the mob. rather than set a precedent that might tend to such a result, that would shake popular confidence in the judiciary, that would lend any encouragement to violence, a judge, as justice field evidently felt, may well risk his own life for the welfare of the commonwealth. he did not even favor the proposition that a marshal be detailed to guard him. the course of the venerable justice is an example to all who would have the law respected. it is also a lesson to all who would take the law into their own hands. not less exemplary was his recognition of the supremacy of the law when the sheriff of san joaquin appeared before him with a warrant of arrest on the grave charge of murder. the warrant was an outrage, but it was the duty of the officer to serve it, even on a justice of the united states supreme court. when the sheriff hesitated and began to apologize before discharging his painful duty, justice field promptly spoke out: "officer, proceed with your duty. i am ready, and an officer should always do his duty." these are traits of judicial heroism worthy the admiration of the world. the _albany evening union_, in one of its issues at this time, has the following: justice field relies upon the law for his defense. the courage of justice stephen j. field in declining to carry weapons and declaring that it is time to close the courts when judges have to arm themselves, and at the same time proceeding to do his duty on the bench when his life was threatened by a desperate man, is without parallel in the history of our judiciary. we do not mean by this that he is the only judge on the bench that would be as brave as he was under the circumstances, but every phase of the affair points to the heroism of the man. he upheld the majesty of the law in a fearless manner and at the peril of his life. he would not permit the judiciary to be lowered by any fear of the personal harm that might follow a straightforward performance of his duty. his arrest for complicity in a murder was borne by the same tranquil bravery--a supreme reliance upon a due process of law. he did not want the officer to apologize to him for doing his duty. he had imprisoned judge terry and his wife sarah althea for contempt of court. * * * the threats by judge terry did not even frighten him to carry weapons of self-defense. this illustration of upholding the majesty of the law is without precedent, and is worth more to the cause of justice than the entire united states army could be if called out to suppress a riotous band of law-breakers. justice field did what any justice should do under the circumstances, but how many judges would have displayed a like courage had they been in his place? the _new york world_, in its issue of monday evening, august th, has the following article: a new leaf turned. when judge field, knowing that his life was threatened, went back unarmed into the state of california and about his business there, he gave wholesome rebuke to the cowardice that prompts men to carry a pistol--a cowardice that has been too long popular on the coast. he did a priceless service to the cause of progress in his state, and added grace to his ermine when he disdained to take arms in answer to the threats of assassins. the men who have conspired to take judge field's life ought to need only one warning that a new day has dawned in california, and to find that warning in the doom of the bully terry. the law will protect the ermine of its judges. the new york _world_ of august th treats of the arrest of justice field as an outrage, and speaks of it as follows: the arrest of field an outrage and an absurdity. the california magistrate who issued a warrant for justice field's arrest is obviously a donkey of the most precious quality. the justice had been brutally assailed by a notorious ruffian who had publicly declared his intention to kill his enemy. before justice field could even rise from his chair a neat-handed deputy united states marshal shot the ruffian. justice field had no more to do with the shooting than any other bystander, and even if there had been doubt on that point it was certain that a justice of the united states supreme court was not going to run away beyond the jurisdiction. his arrest was, therefore, as absurd as it was outrageous. it was asked for by the demented widow of the dead desperado simply as a means of subjecting the justice to an indignity, and no magistrate possessed of even a protoplasmic possibility of common sense and character would have lent himself in that way to such a service. the kansas city _times_, in its issue at this period, uses the following language: no one will censure. _gratitude for judge field's escape the chief sentiment._ deputy marshal neagle acted with terrible promptitude in protecting the venerable member of the supreme court with whose safety he was specially charged, but few will be inclined to censure him. he had to deal with a man of fierce temper, whose readiness to use firearms was part of the best known history of california. it is a subject for general congratulation that justice field escaped the violence of his assailant. the american nation would be shocked to learn that a judge of its highest tribunal could not travel without danger of assault from those whom he had been compelled to offend by administering the laws. justice field has the respect due his office and that deeper and more significant reverence produced by his character and abilities. since most of the present generation were old enough to observe public affairs he has been a jurist of national reputation and a sitting member of the supreme court. in that capacity he has earned the gratitude of his countrymen by bold and unanswerable defense of sound constitutional interpretation on more than one occasion. in all the sad affair the most prominent feeling will be that of gratitude at his escape. _the army and navy journal_, in its issue of august , , had the following article under the head of-- marshal neagle's crime. the public mind appears to be somewhat unsettled upon the question of the right of neagle to kill terry while assaulting judge field. his justification is as clear as is the benefit of his act to a long-suffering community. judge field was assaulted unexpectedly from behind, while seated at a dining-table, by a notorious assassin and ruffian, who had sworn to kill him, and who, according to the testimony of at least one witness, was armed with a long knife, had sent his wife for a pistol, and was intending to use it as soon as obtained. * * * the rule is that the danger which justifies homicide in self-defense must be actual and urgent. and was it not so in this case? no one who reflects upon the features of the case--an old man without means of defense, fastened in a sitting posture by the table at which he sat and the chair he occupied, already smitten with one severe blow and about to receive another more severe from a notorious ruffian who had publicly avowed his intention to slay him--no one surely can deny that the peril threatening judge field was both actual and urgent in the very highest degree. "a man may repel force by force in the defense of his person, habitation, or property, against one or many who manifestly intend and endeavor by violence or surprise to commit a known felony on either." "in such a case he is not obliged to retreat, but may pursue his adversary till he find himself out of danger; and if in a conflict between them he happens to kill, such killing is justifiable. the right of self-defense in case of this kind is founded on the law of nature, and is not, nor can be, superseded by any law of society. where a known felony is attempted upon the person, be it to rob or murder, the party assaulted may repel force by force; and even his servant attendant on him, or any person present, may interpose for preventing mischief, and, if death ensue, the party interposing will be justified." (wharton amer. crim. law, vol. , sec. .) this is the law, as recognized at the present day and established by centuries of precedent, and it completely exonerates neagle--of course judge field needs no exoneration--from any, the least, criminality in what he did. he is acquitted of wrong-doing, not only in his character of attendant servant, but in that of bystander simply. he was as much bound to kill terry under the circumstances as every bystander in the room was bound to kill him; and in his capacity of guard, especially appointed to defend an invaluable life against a known and imminent felony, he was so bound in a much greater degree. "a sincere and apparently well-grounded belief that a felony is about to be perpetrated will extenuate a homicide committed in prevention of it, though the defendant be but a private citizen" ( ala., .) see wharton, above quoted, who embodies the doctrine in his text (vol. , sec. ). * * * * * let us be grateful from our hearts that the old mosaic law, "whoso sheddeth man's blood by man shall his blood be shed," is shown by this memorable event to have not yet fallen altogether into innocuous desuetude; and let us give thanks to god that he has seen fit on this occasion to preserve from death at the hands of an intolerable ruffian the life of that high-minded, pure-handed, and excellent jurist and magistrate, stephen j. field. the philadelphia _times_ of august th has the following: only one opinion. _marshal neagle could not stand idly by._ the killing of judge terry of california is a homicide that will occasion no regret wherever the story of his stormy and wicked life is known. at the same time, the circumstances that surrounded it will be deeply lamented. this violent man, more than once a murderer, met his death while in the act of assaulting justice field of the supreme court of the united states. had he not been killed when he was, judge field would probably have been another of his victims. terry had declared his purpose of killing the justice, and this was their first meeting since his release from deserved imprisonment. in regard to the act of united states marshal neagle, there can be only one opinion. he could not stand idly by and see a judge of the suprene court murdered before his eyes. the contumely that terry sought to put upon the judge was only the insult that was to go before premeditated murder. the case has no moral except the certainty that a violent life will end in a violent death. the _philadelphia inquirer_ of the same date says as follows: a premeditated insult. _followed quickly by a deserved retribution._ ex-judge terry's violent death was a fitting termination to a stormy life, and the incidents of his last encounter were characteristic of the man and his methods. he was one of the few lingering representatives of the old-time population of california. he was prominent there when society was organizing itself, and succeeded in holding on to life and position when many a better man succumbed to the rude justice of the period. most of his early associates died with their boots on, a generation ago. terry lived, assailed on all sides, despised by the better element and opposed by the law, in trouble often, but never punished as he deserved. his last act was to offer a gross, premeditated insult to the venerable justice field, and the retribution he had long defied followed it quickly. california will have little reason to mourn his loss. the _cleveland leader_, in its issue of august th, speaks of the conduct of neagle as follows: the killing of terry. we have already expressed the opinion in these columns that the killing of david s. terry by deputy marshal neagle at lathrop, california, wednesday, was entirely justifiable. in that opinion it is a pleasure to note that the press of the country concur almost unanimously. the judgment of eminent members of the legal profession, as published in our telegraph columns and elsewhere, support and bear out that view of the case. the full account of the trouble makes the necessity of some such action on the part of the deputy marshal clear. the judgment of the country is that neagle only did his duty in defending the person of justice field, and in that judgment the california jury will doubtless concur when the case is brought before it. the _argonaut_, a leading paper of san francisco, not a political, but a literary paper, and edited with great ability, in its issue of august , , used the following language: the course of judge field throughout this troublesome business has been in the highest degree creditable to him. he has acted with dignity and courage, and his conduct has been characterized by most excellent taste. his answer, when requested to go armed against the assault of terry, is worthy of preservation. and now that his assailant has been arrested in his career by death, all honest men who respect the law will breathe more freely. judge terry had gained a most questionable reputation, not for courage in the right direction; not for generosity which overlooked or forgave, or forgot offenses against himself or his interests. he never conceded the right to any man to hold an opinion in opposition to his prejudices, or cross the path of his passion with impunity. he could with vulgar whisper insult the judge who rendered an opinion adverse to his client, and with profane language insult the attorney who had the misfortune to be retained by a man whose cause he did not champion. he had become a terror to society and a walking menace to the social circle in which he revolved. his death was a necessity, and, except here and there a friend of blunted moral instincts, there will be found but few to mourn his death or criticise the manner of his taking off. to say that marshal neagle should have acted in any other manner than he did means that he was to have left justice field in the claws of a tiger, and at the mercy of an infuriated, angry monster, who had never shown mercy or generosity to an enemy in his power. * * * judge field has survived the unhappy conflict which carried judge terry to his grave. he is more highly honored now than when this quarrel was thrust upon him; he has lost no friends; he has made thousands of new ones who honor him for protecting with his life the honor of the american bench, the dignity of the american law, and the credit of the american name. in the home where judge terry lived he went to the grave almost unattended by the friends of his social surroundings, no clergyman consenting to read the service at his burial. the supreme court over which he had presided as chief justice refused to adjourn in honor of his death, the press and public opinion, for a wonder, in accord over the manner of his taking off. indeed, the public opinion of the country, as shown by the press and declarations of prominent individuals, was substantially one in its approval of the action of the government, the conduct of neagle, and the bearing of justice field.[ ] the _daily report_, a paper of influence in san francisco at the time, published the following article on "the lesson of the hour," from the pen of an eminent lawyer of california, who was in no way connected with the controversy which resulted in judge terry's death: the universal acquiescence of public opinion in the justifiable character of the act which terminated the life of the late david s. terry is to be accounted for by the peculiar nature of the offense which he had committed. it was not for a mere assault, though perpetrated under circumstances which rendered it peculiarly reprehensible, that he met his death without eliciting from the community one word of condemnation for the slayer or of sympathy with the slain. mr. justice field is an officer of high rank in the most important department of the government of the united states, namely, that which is charged with the administration of legal justice. when david s. terry publicly and ostentatiously slapped the face of this high official--this representative of public justice--the blow being in all probability the intended prelude to a still more atrocious offense, he committed a gross violation of the peace and dignity of the united states. the echo of the blow made the blood tingle in the veins of every true american, and from every quarter, far and near, thick and fast, came denunciations of the outrage. that any man under a government created "by the people, for the people" shall assume to be a law unto himself, the sole despot in a community based on the idea of the equality of all before the law, and the willing submission and obedience of all to established rule, is simply intolerable. in his audacious assault on "the powers that be" terry took his life in his hand, and no lover of peace and good order can regret that, of the two lives in peril, his was extinguished. he threw down the gage of battle to the whole community, and it is well that he was vanquished in the strife. in the early part of the war of the rebellion general dix, of new york, was placed in charge of one of the disaffected districts. we had then hardly begun to see that war was a very stern condition of things, and that it actually involved the necessity of killing. those familiar with the incidents of that time will remember how the general's celebrated order, "if any one attempts to haul down the american flag, shoot him on the spot," thrilled the slow pulses of the northern heart like the blast of a bugle. yet some adverse obstructionist might object that the punishment pronounced far exceeded the offense, which was merely the effort to detach from its position a piece of colored bunting. but it is the _animus_ that characterizes the act. an insult offered to a mere symbol of authority becomes, under critical circumstances, an unpardonable crime. if the symbol, instead of being an inanimate object, be a human being--a high officer of the government--does not such an outrage as that committed by terry exceed in enormity the offense denounced by general dix? and if so, why should the punishment be less? in every civilized community, society, acting with a keen instinct of self-preservation, has always punished with just severity those capital offenders against peace and good order who strike at the very foundation on which all government must rest. [ ] it has been conclusively established since that he was armed with his usual bowie-knife at the time. [ ] note.--whilst there was a general concurrence of opinion as to the threats of terry and of the fate he met at the hands of neagle and of the bearing of justice field through all the proceedings, there were exceptions to this judgment. there were persons who sympathized with terry and his associates and grieved at his fate, although he had openly avowed his intention not merely to insult judicial officers for their judicial conduct, but to kill them in case they resented the insult offered. he married sarah althea hill after the united states circuit court had delivered its opinion, in open court, announcing its decision that she had committed forgery, perjury, and subornation of perjury, and was a woman of abandoned character. and yet a writer in the _overland monthly_ in october, , attributes his assault upon the marshal--striking him violently in the face for the execution of the order of the court to remove her from the court-room because of her gross imputation upon the judges--chiefly to his chivalric spirit to protect his wife, and declares that "the universal verdict" upon him "will be that he was possessed of _sterling integrity of purpose_, and stood out from the rest of his race as a strongly individualized character, which has been well called an anachronism in our civilization." and governor pennoyer, of oregon, in his message to the legislature of that state, pronounced the officer appointed by the marshal under the direction of the attorney-general to protect justices field and sawyer from threatened violence and murder as a "_secret armed assassin_," who accompanied a federal judge in california, and who shot down in cold blood an unarmed citizen of that state. chapter xx. the appeal to the supreme court of the united states, and the second trial of sarah althea's divorce case. with the discharge from arrest of the brave deputy marshal, neagle, who had stood between justice field and the would-be assassin's assault, and the vindication by the circuit court of the right of the general government to protect its officers from personal violence, for the discharge of their duties, at the hands of disappointed litigants, the public mind, which had been greatly excited by the proceedings narrated, became quieted. no apprehension was felt that there would be any reversal of the decision of the circuit court on the appeal which was taken to the supreme court. general and absolute confidence was expressed in the determination of the highest tribunal of the nation. the appeal was argued on the part of neagle by the attorney-general of the united states and joseph h. choate, esq., of the new york bar; and the briefs of counsel in the circuit court were also filed. the attorney-general of california and mr. zachariah montgomery appeared upon behalf of the state, and briefs of messrs. shellabarger and wilson were also filed in its behalf. the argument of the attorney-general of the united states was exceedingly able. he had watched all the proceedings of the case from the outset. he had directed that protection should be extended by the marshal to justice field and judge sawyer against any threatened violence, and he believed strongly in the doctrine that the officers of the general government were entitled to receive everywhere throughout the country full protection against all violence whilst in the discharge of their duties. he believed that such protection was necessary to the efficiency and permanency of the government; and its necessity in both respects was never more ably presented. the argument of mr. choate covered all the questions of law and fact in the case and was marked by that great ability and invincible logic and by that clearness and precision of statement which have rendered him one of the ablest of advocates and jurists in the country, one who all acknowledge has few peers and no superiors at the bar of the nation.[ ] the argument of the attorney-general of the state consisted chiefly of a repetition of the doctrine that, for offenses committed within its limits, the state alone has jurisdiction to try the offenders--a position which within its proper limits, and when not carried to the protection of resistance to the authority of the united states, has never been questioned. the most striking feature of the argument on behalf of the state was presented by zachariah montgomery. it may interest the reader to observe the true terry flavor introduced into his argument, and the manifest perversion of the facts into which it led him. he deeply sympathized with terry in the grief and mortification which he suffered in being charged with having assaulted the marshal with a deadly weapon in the presence of the circuit court in september, . he attempted to convince the supreme court that one of its members had deliberately made a misrecital, in the order committing terry for contempt, and treated this as a mitigation of that individual's subsequent attack on justice field. he did not, however, attempt to gainsay the testimony of the numerous witnesses who swore that terry did try to draw his knife while yet in the court-room on that occasion, and that, being temporarily prevented from doing so by force, he completed the act as soon as this force was withdrawn, and pursued the marshal with knife in hand, loudly declaring in the hearing of the court, in language too coarse and vulgar to be repeated, that he would do sundry terrible things to those who should obstruct him on his way to his wife. as she was then in the custody of the marshal and in his office, under an order of the court; and as terry had resisted her arrest and removal from the court-room until overpowered by several strong men, and as he had instantly on being released rushed madly from the court-room, drawing and brandishing his knife as he went, the conclusion is irresistible that he was determined upon her rescue from the marshal, if, with the aid of his knife, he could accomplish it. that mr. montgomery allowed these facts, which constitute the offense of an assault with a deadly weapon, to go unchallenged, compels us to the charitable presumption that he did not know the law. a reading of the decisions on this subject would have taught him that in order to constitute that offense it is not necessary that the assailant should actually stab with his knife or shoot with his pistol. the assault by terry was commenced in the court-room, under the eyes of the judges, and was a continuing act, ending only-with the wrenching of the knife from his hands. it was all committed "in the presence of the court," for the supreme court has decided in the savin case that "the jury-room and hallway were parts of the place in which the court was required by law to hold its sessions, and that the court, at least when in session, is present in every part of the place set apart for its own use and for the use of its officers, jurors, and witnesses, and that misbehavior in such a place is misbehavior in the presence of the court. (see vol. , u.s. reports, page , where the case is reported.) mr. montgomery was feckless enough to contradict the record when he stated that justice field in his opinion in the revivor case "took occasion to discuss at considerable length the question of the genuineness of the aforesaid marriage document, maintaining very strenuously that it was a forgery, and that this it was that so aroused the indignation of mrs. terry that she sprang to her feet and charged justice field with having been bought." there is not a word of truth in this statement. justice field, in overruling the demurrer, never discussed at all the genuineness of the marriage agreement. how, then, could it be true that words, nowhere to be found in judge field's opinion, "so aroused the indignation of mrs. terry that she sprang to her feet and charged justice field with having been bought"? justice field discussed only the legal effect of the decree already rendered by the united states circuit court. he said nothing to excite the woman's ire, except to state the necessary steps to be taken to enforce the decree. he had not participated in the trial of the original case, and had never been called upon to express any opinion concerning the agreement. mr. montgomery said in his brief that the opinion read by justice field, "while overruling a demurrer, assails this contract, in effect pronouncing it a forgery." this statement is totally unfounded. from it the casual reader would suppose that the demurrer was to the complaint in the original case, and that the court was forestalling evidence, whereas it was a demurrer in a proceeding to revive the suit, which had abated by the death of the party, and to give effect to the decree already rendered therein, after a full hearing of the testimony. mr. montgomery said: "the opinion also charges mrs. terry with perjury, after she has sworn that it was genuine." the judgment of a court may be referred to by one of its judges, even though the rendering of the judgment convicted a party or a witness, of perjury, without furnishing the perjurer with a justification for denouncing the judge. mr. montgomery furthermore said that the "opinion charged her not only with forgery and perjury, but with unchastity as well; for if she had not been sharon's wife, she had unquestionably been his kept mistress." he says: "at the announcement of this decision from the bench in the presence of a crowded court-room; a decision which she well knew, before the going down of another sun, would be telegraphed to the remotest corners of the civilized world, to be printed and reprinted with sensational head-lines in every newspaper, and talked over by every scandal-monger on the face of the earth; was it any wonder--not that it was right--but was it any wonder that this high-spirited, educated woman, sprung from as respectable a family as any in the great state of missouri, proud of her ancestry, and prizing her good name above everything on this earth, when she heard herself thus adjudged in one breath to be guilty of forgery, perjury, and unchastity, and thus degraded from the exalted position of wife--to which the supreme court of her state had said she was entitled--down to that of a paid harlot; was it any wonder, i say, that like an enraged tigress she sprang to her feet, and in words of indignation sought to defend her wounded honor?" mr. montgomery did not speak truly when he said that on this occasion such a decision was announced from the bench. the decision was announced on the th of december, , nearly three years before. the only decision announced on this occasion was that the case did not die with the plaintiff therein--william sharon--but that the executor of his estate had the right to act--had a right to be substituted for the deceased, and to have the decree executed just as it would have been if mr. sharon had lived. it was amazing effrontery and disregard of the truth on the part of mr. montgomery to make such a statement as he did to the supreme court, when the record, lying open before them, virtually contradicted what he was saying. towards the close of the decision justice field did make reference to mrs. terry's testimony in the superior court. he said that in the argument some stress had been laid upon the fact that in a state court, where the judge had decided in mrs. terry's favor, the witnesses had been examined in open court, where their bearing could be observed by the judge; while in the federal court the testimony had been taken before an examiner, and the court had not the advantage of hearing and seeing the witnesses. in reply to this justice field called attention to the fact that judge sullivan, while rendering his decision in favor of mrs. terry, had accused her of having wilfully perjured herself in several instances while testifying in her own case, and of having suborned perjury, and of having knowingly offered in evidence a forged document. but this reference to judge sullivan's accusations against mrs. terry was not reached in the reading of justice field's opinion until nearly an hour after mrs. terry had been forcibly removed from the court-room for contempt, and therefore she did not hear it. this fact appears on record in the contempt proceedings. but the most extraordinary feature of mr. montgomery's brief is yet to be noticed. he says that "if the assault so made by judge terry was not for the purpose of then and there killing or seriously injuring the party assaulted, but for the purpose of provoking him into a duel, then the killing of the assailant for such an assault was a crime." and again he says: "i have said that if the purpose of judge terry's assault upon field was for the purpose of killing him then and there, neagle, and not neagle only, but anybody else, would have been justifiable in killing terry to save the life of field; but that if terry's object in assaulting field was not then and there to kill or otherwise greatly injure him, but to draw him into a duel, then such an assault was not sufficient to justify the killing." he then proceeds to speak of judge terry's duel with senator broderick, in which the latter was killed. he refers to many eminent citizens who have fought duels, although he admits that dueling is a sin. he then explains that "as a rule the duelist who considers himself wronged by another, having the position and standing of a gentleman, tenders him an insult, either by a slap in the face or otherwise, in order to attract a challenge. such undoubtedly was terry's purpose in this case. all of terry's threats point precisely to that." here mr. montgomery seems to be in accord with sarah althea terry, who, as we have seen, stated that "judge terry intended to take out his satisfaction in slaps." in the same direction is the declaration of porter ashe, when he said: "instant death is a severe punishment for slapping a man on the face. i have no suspicion that terry meant to kill field or to do him further harm than to humiliate him." and also that of mr. baggett, one of terry's counsel, who said: "i have had frequent conversations with terry about field, and he has often told me that field has used his court and his power as a judge to humiliate him, and that he intended to humiliate him in return to the extent of his power. 'i will slap his face,' said terry to me, 'if i run across him, but i shall not put myself out of the way to meet him. i do not intend to kill him, but i will insult him by slapping his face, knowing that he will not resent it.'" what knightly courage was here. if ever a new edition of the dueling code is printed, it should have for a frontispiece a cut representing the stalwart terry dealing stealthy blows from behind upon a justice of the united states supreme court, years of age, after having previously informed a trusted friend that he believed himself safe from any resistance by the object of his attack. it may be here also said that justice field, as was well known to every one, had for many years suffered from great lameness in consequence of an injury received by him in early life, and with difficulty could walk without assistance. mr. montgomery, with freezing candor, informs the supreme court that, in strict accordance with the chivalrous code of honor, judge terry administered blows upon a member of that court, to force him into a duel, because of a judicial act with which he was displeased. he says: "the most conclusive proof that terry had no intention, for the time being, of seriously hurting field, but that his sole purpose was to tender him an insult, is found in the fact that he only used his open hand, and that, too, in a mild manner." we often hear of the "mild-mannered men" who "scuttle ships" and "cut throats," but this is the very first one whose "very mild manner" of beating a justice of the supreme court of the united states with his hand was ever certified to by an attorney and counsellor of that court in the argument of a case before it. it would be difficult to conceive of anything more puerile or absurd than this pretense that terry had the slightest expectation of provoking a man of justice field's age, official position, and physical condition, to fight a duel with him in vindication of the right of the court over which he presided to imprison a man for contempt for beating the marshal in the face with his fist, and afterwards pursuing him with a knife, in the presence of the court, for obeying an order of the court. mr. montgomery appears to have been imported into the case mainly for the purpose of reviewing the facts and giving them the terry stamp. his ambition seems to have been to insult justice field and his associates in the circuit court by charging them with misrepresenting the facts of the occurrence, thus repeating terry's reckless accusations to that effect. for terry he had only words of eulogy and admiration, and said he was "straightforward, candid, and incapable of concealment or treachery himself, and therefore never suspected treachery, even in an enemy." these noble qualities terry had illustrated by assaulting justice field from behind while the latter was in a position which placed him entirely at the mercy of his assailant. montgomery thought that not only neagle, but the president, attorney-general, district attorney, and marshal franks should be arraigned for terry's murder. although justice field had expressly advised the marshal that it was unnecessary for anybody to accompany him to los angeles, and although neagle went contrary to his wish, and only because the marshal considered himself instructed by the attorney-general to send him, yet mr. montgomery especially demanded that he (justice field) should be tried for terry's homicide. this, too, in the face of the fact that under instructions from the attorney-general of the state of california, aroused to his duty by the governor, the false, malicious, and infamous charge made against justice field by sarah althea terry was dismissed by the magistrate who had entertained it, on the ground that it was manifestly destitute of the shadow of a foundation, and that any further proceedings against him would be "a burning disgrace to the state." the decision of the circuit court discharging neagle from the custody of the sheriff of san joaquin county was affirmed by the supreme court of the united states on the th of april, . justice field did not sit at the hearing of the case, and took no part in its decision, nor did he remain in the conference room with his associate justices at any time while it was being considered or on the bench when it was delivered. the opinion of the court was delivered by justice miller. dissenting opinions were filed by chief justice fuller and justice lamar. justice miller's opinion concludes as follows: "we have thus given, in this case, a most attentive consideration to all the questions of law and fact which we have thought to be properly involved in it. we have felt it to be our duty to examine into the facts with a completeness justified by the importance of the case, as well as from the duty imposed upon us by the statute, which we think requires of us to place ourselves, as far as possible, in the place of the circuit court and to examine the testimony and the arguments in it, and to dispose of the party as law and justice require. "the result at which we have arrived upon this examination is, that in the protection of the person and the life of mr. justice field, while in the discharge of his official duties, neagle was authorized to resist the attack of terry upon him; that neagle was correct in the belief that without prompt action on his part the assault of terry upon the judge would have ended in the death of the latter; that such being his well-founded belief, he was justified in taking the life of terry, as the only means of preventing the death of the man who was intended to be his victim; that in taking the life of terry, under the circumstances, he was acting under the authority of the law of the united states, and was justified in doing so; and that he is not liable to answer in the courts of california on account of his part in that transaction. "we therefore affirm the judgment of the circuit court authorizing his discharge from the custody of the sheriff of san joaquin county." [ ] note.--mr. choate took great interest in the question involved--the right of the government of the united states to protect its officers from violence whilst engaged in the discharge of their duties,--deeming its maintenance essential to the efficiency of the government itself; and he declined to make any charge or take any fee for his professional services in the case. the privilege of supporting this great principle before the highest tribunal of the country, where his powers would be most effectively engaged in securing its recognition, was considered by him as sufficient reward. certainly he has that reward in the full establishment of that principle--for which, also, both he and attorney-general miller will receive the thanks of all who love and revere our national government and trust that its existence may be perpetuated. mr. james c. carter, the distinguished advocate of new york, also took a deep interest in the questions involved, and had several consultations with mr. choate upon them; and his professional services were given with the same generous and noble spirit that characterized the course of mr. choate. chapter xxi. concluding observations. thus ends the history of a struggle between brutal violence and the judicial authority of the united states. commencing in a mercenary raid upon a rich man's estate, relying wholly for success on forgery, perjury, and the personal fear of judges, and progressing through more than six years of litigation in both the federal and the state courts, it eventuated in a vindication by the supreme court of the united states of the constitutional power of the federal government, through its executive department, to protect the judges of the united states courts from the revengeful and murderous assaults of defeated litigants, without subjecting its appointed agents to malicious prosecutions for their fidelity to duty, by petty state officials, in league with the assailants. the dignity and the courage of justice field, who made the stand against brute force, and who, refusing either to avoid a great personal danger or to carry a weapon for his defense, trusted his life to that great power which the constitution has placed behind the judicial department for its support, was above all praise. the admirable conduct of the faithful deputy marshal, neagle, in whose small frame the power of a nation dwelt at the moment when, like a modern david, he slew a new goliath, illustrated what one frail mortal can do, who scorns danger when it crosses the path of duty. the prompt action of the executive department, through its attorney-general, in directing the marshal to afford all necessary protection against threatened danger, undoubtedly saved a justice of the supreme court from assassination, and the government from the disgrace of having pusillanimously looked on while the deed was done. the skill and learning of the lawyers who presented the case of neagle in the lower and in the appellate courts reflected honor on the legal profession. the exhaustive and convincing opinion of circuit judge sawyer, when ordering the release of neagle, seemed to have made further argument unnecessary. the grand opinion of justice miller, in announcing the decision of the supreme court affirming the order of the circuit court, was the fitting climax of all. its statement of the facts is the most graphic and vivid of the many that have been written. its vindication of the constitutional right of the federal government to exist, and to preserve itself alive in all its powers, and on every foot of its territory, without leave of, or hindrance by, any other authority, makes it one of the most important of all the utterances of that great tribunal. its power is made the more apparent by the dissent, which rests rather upon the assertion that congress had not legislated in exact terms for the case under consideration, than upon any denial of the power of the federal government to protect its courts from violence. the plausibility of this ground is dissipated by the citations in the majority opinion of the california statute concerning sheriffs, and of the federal statute concerning marshals, by which the latter are invested with all the powers of the sheriffs in the states wherein they reside, thus showing clearly that marshals possess the authority to protect officers of the united states which sheriffs possess to protect officers of the state against criminal assaults of every kind and degree. during the argument in the neagle case, as well as in the public discussions of the subject, much stress was laid by the friends of terry upon the power and duty of the state to afford full protection to all persons within its borders, including the judges of the courts of the united states. they could not see why it was necessary for the attorney-general of the united states to extend the arm of the federal government. they held that the police powers of the state were sufficient for all purposes, and that they were the sole lawful refuge for all whose lives were in danger. but they did not explain why it was that the state never did afford protection to judges field and sawyer, threatened as they notoriously were by two desperate persons. the laws of the state made it the duty of every sheriff to preserve the peace of the state, but the terrys were permitted, undisturbed and unchecked, to proclaim their intention to break the peace. if they had announced their intention, for nearly a year, to assassinate the judges of the supreme court of the state, would they have been permitted to take their lives, before being made to feel the power of the state? would an organized banditti be permitted to unseat state judges by violence, and only feel the strong halter of the law after they had accomplished their purpose? can no preventive measures be taken under the police powers of the state, when ruffians give notice that they are about to obstruct the administration of justice by the murder of high judicial officers? it was not so much to insure the punishment of terry and his wife if they should murder justice field, as to prevent the murder, that the executive branch of the united states government surrounded him with the necessary safeguards. how can justice be administered under the federal statutes if the federal judges must fight their way, while going from district to district, to overcome armed and vindictive litigants who differ with them concerning the judgments they have rendered? but it was said judge terry could have been held to bail to keep the peace. the highest bail that can be required in such cases under the law of the state is five thousand dollars. what restraint would that have been upon terry, who was so filled with malice and so reckless of consequences that he finally braved the gallows by attempting the murder of the object of his hate? but even this weak protection never was afforded. shall it be said that justice field ought to have gone to the nearest justice of the peace and obsequiously begged to have terry placed under bonds? but this he could not have done until he reached the state, and he was in peril from the moment that he reached the state line. the dust had not been brushed from his clothing before some of the papers which announced his arrival eagerly inquired what terry would do and when he would do it. some of them seemed most anxious for the sensation that a murder would produce. the state was active enough when terry had been prevented from doing his bloody work upon justice field. the constable who had been telegraphed for before the train reached lathrop on the fatal day, but who could not be found, and was not at the station to aid in preserving the peace, was quick enough to _arrest neagle without a warrant, for an act not committed in his presence_, and therefore known only to him by hearsay. against the remonstrances of a supreme justice of the united states, who had also been chief justice of california, and who might have been supposed to know the laws as well at least as a constable, the protection placed over him by the executive branch of the federal government was unlawfully taken from him and the protector incarcerated in jail. the constable doubtless did only what he was told and what he believed to be his duty. neagle declined to make any issue with him of a technical character and went with him uncomplainingly. if neagle's pistol had missed fire, or his aim had been false, he might have been arrested on the spot for his attempt to protect justice field, while terry would have been left free at the same time to finish his murderous work then, or to have pursued justice field into the car and, free from all interference by neagle, have despatched him there. the state officials were all activity to protect the would-be murderer, but seemed never to have been ruffled in the least degree over the probable assassination of a justice of the supreme court of the united states. the terrys were never thought to be in any danger. the general belief was that judges field and sawyer were in great danger from them. the death of terry displeased three classes: first, all who were willing to see justice field murdered; second, all who naturally sympathize with the tiger in his hunt for prey, and who thought it a pity that so good a fighter as terry should lose his life in seeking that of another; and, third, all who preferred to see sarah althea enjoy the property of the sharon estate in place of its lawful heirs. it is plain from the foregoing review that the state authorities of california presented no obstruction to terry and his wife as they moved towards the accomplishment of their deadly purpose against justice field. it was the executive arm of the nation operating through the deputy united states marshal, under orders from the department of justice, that prevented the assassination of justice field by david s. terry. * * * * * it only remains to state the result of the second trial of the case between sarah althea hill, now mrs. terry, and the executor of william sharon before the superior court of the city of san francisco. it will be remembered that on the first trial in that court, presided over by judge sullivan, a judgment was entered declaring that miss hill and william sharon had intermarried on the th of august, , and had at the time executed a written contract of marriage under the laws of california, and had assumed marital relations and subsequently lived together as husband and wife. from the judgment rendered an appeal was taken to the supreme court of the state. a motion was also made for a new trial in that case, and from the order denying the new trial an appeal was also taken to the supreme court. the decision on the appeal from the judgment resulted in its affirmance. the result of the appeal from the order denying a new trial was its reversal, with a direction for a new trial. the effect of that reversal was to open the whole case. in the meantime william sharon had died and miss hill had married david s. terry. the executor of william sharon, frederick w. sharon, appeared as his representative in the suit, and filed a supplemental answer. the case was tried in the superior court, before judge shafter, in july, , and on the th of august following the judge filed his findings and conclusions of law, which were, briefly, as follows: that the plaintiff and william sharon, deceased, did not, on the th of august, , or at any other time, consent to intermarry or become, by mutual agreement or otherwise, husband and wife; nor did they, thereafter, or at any time, live or cohabit together as husband and wife, or mutually or otherwise assume marital duties, rights, or obligations; that they did not, on that day or at any other time, in the city and county of san francisco, or elsewhere, jointly or otherwise, make or sign a declaration of marriage in writing or otherwise; and that the declaration of marriage mentioned in the complaint was false, counterfeited, fabricated, forged, and fraudulent, and, therefore, null and void. the conclusion of the court was that the plaintiff and william sharon were not, on august , , and never had been husband and wife, and that the plaintiff had no right or claim, legal or equitable, to any property or share in any property, real or personal, of which william sharon was the owner or in possession, or which was then or might thereafter be held by the executor of his last will and testament the defendant, frederick w. sharon. accordingly, judgment was entered for the defendant. an appeal was taken from that judgment to the supreme court of california, and on the th of august, , sarah althea terry having become insane pending the appeal, and p.p. ashe, esq., having been appointed and qualified as the general guardian of her person and estate, it was ordered that he be substituted in the case, and that she subsequently appear by him as her guardian. in october following, the appeal was dismissed. thus ended the legal controversy initiated by this adventuress to obtain a part of the estate of the deceased millionaire. everyman, i will go with thee, and be thy guide, in thy most need to go by thy side. this is no. of everyman's library. a list of authors and their works in this series will be found at the end of this volume. the publishers will be pleased to send freely to all applicants a separate, annotated list of the library. j. m. dent & sons limited - bedford street london w.c. e. p. dutton & co. inc. - fourth avenue new york everyman's library edited by ernest rhys history ancient law by sir henry james sumner maine introduction by prof. j. h. morgan sir henry james sumner maine, the son of a doctor, born in india. educated at christ's hospital and pembroke college, cambridge. in professor of civil law at cambridge; , called to the bar. member of indian council for seven years. died at cannes, . ancient law [illustration] sir henry maine london: j. m. dent & sons ltd. new york: e. p. dutton & co. inc. _all rights reserved made in great britain at the temple press letchworth and decorated by eric ravilious for j. m. dent & sons ltd. aldine house bedford st. london first published in this edition reprinted , , _ introduction no one who is interested in the growth of human ideas or the origins of human society can afford to neglect maine's _ancient law_. published some fifty-six years ago it immediately took rank as a classic, and its epoch-making influence may not unfitly be compared to that exercised by darwin's _origin of species_. the revolution effected by the latter in the study of biology was hardly more remarkable than that effected by maine's brilliant treatise in the study of early institutions. well does one of maine's latest and most learned commentators say of his work that "he did nothing less than create the natural history of law." this is only another way of saying that he demonstrated that our legal conceptions--using that term in its largest sense to include social and political institutions--are as much the product of historical development as biological organisms are the outcome of evolution. this was a new departure, inasmuch as the school of jurists, represented by bentham and austin, and of political philosophers, headed by hobbes, locke, and their nineteenth-century disciples, had approached the study of law and political society almost entirely from an unhistoric point of view and had substituted dogmatism for historical investigation. they had read history, so far as they troubled to read it at all, "backwards," and had invested early man and early society with conceptions which, as a matter of fact, are themselves historical products. the jurists, for example, had in their analysis of legal sovereignty postulated the commands of a supreme lawgiver by simply ignoring the fact that, in point of time, custom precedes legislation and that early law is, to use maine's own phrase, "a habit" and not a conscious exercise of the volition of a lawgiver or a legislature. the political philosophers, similarly, had sought the origin of political society in a "state of nature"--humane, according to locke and rousseau, barbarous, according to hobbes--in which men freely subscribed to an "original contract" whereby each submitted to the will of all. it was not difficult to show, as maine has done, that contract--_i.e._ the recognition of a mutual agreement as binding upon the parties who make it--is a conception which comes very late to the human mind. but maine's work covers much wider ground than this. it may be summed up by saying that he shows that early society, so far as we have any recognisable legal traces of it, begins with the group, not with the individual. this group was, according to maine's theory, the family--that is to say the family as resting upon the patriarchal power of the father to whom all its members, wife, sons, daughters, and slaves, were absolutely subject. this, the central feature of maine's speculation, is worked out with infinite suggestiveness and great felicity of style in chapter v. ("primitive society and ancient law") of the present work, and his chief illustrations are sought in the history of roman law. the topics of the other chapters are selected largely with a view to supplying confirmation of the theory in question and, as we shall see in a moment, maine's later works do but serve to carry the train of reasoning a step further by the use of the comparative method in invoking evidence from other sources, notably from irish and hindu law. let us, however, confine ourselves for the moment to "ancient law." maine works out the implications of his theory by showing that it, and it alone, can serve to explain such features of early roman law as agnation, _i.e._ the tracing of descent exclusively through males, and adoption, _i.e._ the preservation of the family against the extinction of male heirs. the perpetual tutelage of women is the consequence of this position. moreover, all the members of the family, except its head, are in a condition best described as _status_: they have no power to acquire property, or to bequeath it, or to enter into contracts in relation to it. the traces of this state of society are clearly visible in the pages of that classical text-book of roman law, the _institutes_ of justinian,[ ] compiled in the sixth century a.d., though equally visible is the disintegration wrought in it by the reforming activity of the praetor's edicts. that reformation followed the course of a gradual emancipation of the members of the family, except those under age, from the despotic authority of the father. this gradual substitution of the individual for the family was effected in a variety of ways, but in none more conspicuously than by the development of the idea of contract, _i.e._ of the capacity of the individual to enter into independent agreements with strangers to his family-group by which he was legally bound--an historical process which maine sums up in his famous aphorism that the movement of progressive societies has hitherto been a movement from status to contract. in the chapters on the early history of wills, property, and contract, maine supports his theory by showing that it is the key which unlocks many, if not all, of the problems which those topics present. the chapter on wills--particularly the passage in which he explains what is meant by universal succession--is a brilliant example of maine's analytic power. he shows that a will--in the sense of a secret and revocable disposition of property only taking effect after the death of the testator--is a conception unknown to early law, and that it makes its first appearance as a means of transmitting the exercise of domestic sovereignty, the transfer of the property being only a subsidiary feature; wills only being permitted, in early times, in cases where there was likely to be a failure of proper heirs. the subsequent popularity of wills, and the indulgence with which the law came to regard them, were due to a desire to correct the rigidity of the patria potestas, as reflected in the law of intestate succession, by giving free scope to natural affection. in other words, the conception of relationship as reckoned only through males, and as resting on the continuance of the children within their father's power, gave way, through the instrumentality of the will, to the more modern and more natural conception of relationship. in the chapter on property maine again shows that the theory of its origin in occupancy is too individualistic and that not separate ownership but joint ownership is the really archaic institution. the father was in some sense (we must avoid importing modern terms) the trustee of the joint property of the family. here maine makes an excursion into the fields of the early village community, and has, too, to look elsewhere than to rome, where the village community had already been transformed by coalescence into the city-state. he therefore seeks his examples from india and points to the indian village as an example of the expansion of the family into a larger group of co-proprietors, larger but still bearing traces of its origin to the patriarchal power. and, to quote his own words, "the most important passage in the history of private property is its gradual separation from the co-ownership of kinsmen." the chapter on contract, although it contains some of maine's most suggestive writing, and the chapter on delict and crime, have a less direct bearing on his main thesis except in so far as they go to show that the reason why there is so little in early law of what we call civil, as distinct from criminal, law, and in particular of the law of contract, is to be found in the fact that, in the infancy of society, the law of persons, and with it the law of civil rights, is merged in the common subjection to paternal power. such, putting it in the simplest possible language, is the main argument of _ancient law_. the exigencies of space and of simplicity compel me to pass by, to a large extent, most of the other topics with which maine deals--the place of custom, code, and fiction in the development of early law, the affiliation of international law to the _jus gentium_ and the law of nature, the origins of feudalism and of primogeniture, the early history of delict and crime, and that most remarkable and profound passage in which maine shows the heavy debt of the various sciences to roman law and the influence which it has exerted on the vocabulary of political science, the concepts of moral philosophy, and the doctrines of theology. i must confine myself to two questions: how far did maine develop or modify in his subsequent writings the main thesis of _ancient law_? to what extent has this thesis stood the test of the criticism and research of others? as regards the first point, it is to be remembered that _ancient law_ is but the first, though doubtless the most important, of a whole series of works by its author on the subject of early law. it was followed at intervals by three volumes: _village communities in the east and west_, _early institutions_, and _early law and_ _custom_. in the first of these he dealt with a subject which has excited an enormous degree of attention and not a little controversy among english, french, german, and russian scholars,[ ] amounting as it does to nothing less than an investigation into the origin of private property in land. the question has been put in various forms: did it commence with joint (or, as some would put it, less justifiably, communal or corporate) ownership or with individual ownership, and again was the village community free or servile? it is now pretty generally recognised that there was more than one type, though common cultivation was doubtless a feature of them all, and even in india there were at least two types, of which the one presenting several, as opposed to communal, ownership is not the less ancient. but it may well be that, as maitland so often pointed out, much of the controversy has been literally an anachronism; that is to say, that nineteenth-century men have been asking the early ages questions which they could not answer and reading back into early history distinctions which are themselves historical products. ownership is itself a late abstraction developed out of use. we may say with some certainty that family "ownership" preceded individual ownership, but in what sense there was communal ownership by a whole village it is not so easy to say. maine was on surer ground when, as in his studies of irish and hindu law, he confined himself to the more immediate circle of the family group. in his _early institutions_ he subjects the brehon laws of early ireland to a suggestive examination as presenting an example of celtic law largely unaffected by roman influences. he there shows, as he has shown in _ancient law_, that in early times the only social brotherhood recognised was that of kinship, and that almost every form of social organisation, tribe, guild, and religious fraternity, was conceived of under a similitude of it. feudalism converted the village community, based on a real or assumed consanguinity of its members, into the fief in which the relations of tenant and lord were those of contract, while those of the unfree tenant rested on status. in his _early law and custom_ he pursues much the same theme by an examination of hindu law as presenting a peculiarly close implication of early law with religion. here he devotes his attention chiefly to ancestor-worship, a subject which about this time had engaged the attention, as regards its greek and roman forms, of that brilliant frenchman, fustel de coulanges, whose monograph _la cité antique_ is now a classic. as is well known, the right of inheriting a dead man's property and the duty of performing his obsequies are co-relative to this day in hindu law, and his investigation of this subject brings maine back to the subject of the patriarchal power. he points out that both worshipper and the object of worship were exclusively males, and concludes that it was the power of the father which generated the practice of worshipping him, while this practice in turn, by the gradual admission of women to participate in the ceremonies, gradually acted as a solvent upon the power itself. the necessity of finding some one to perform these rites, on failure of direct male heirs, marked the beginning of the recognition of a right in women to inherit. the conception of the family becomes less intense and more extensive. these discussions brought maine, in chapter vii. of _early law and custom_, to reconsider the main theory of _ancient law_ in the light of the criticism to which it had been exposed, and every reader of _ancient law_ who desires to understand maine's exact position in regard to the scope of his generalisations should read for himself the chapter in the later work entitled "theories of primitive society." his theory of the patriarchal power had been criticised by two able and industrious anthropologists, m'lennan and morgan, who, by their investigation of "survivals" among barbarous tribes in our own day, had arrived at the conclusion that, broadly speaking, the normal process through which society had passed was not patriarchal but "matriarchal," _i.e._ understanding by that term a system in which descent is traced through females. it would take up far too much space to enter into this controversy in detail. it is sufficient to say that the counter-theory rested on the assumption that society originated not in families, based on the authority of the father and relationship through him, but in promiscuous hordes among whom the only certain fact, and, consequently, the only recognised basis of relationship, was maternity. maine's answer to this was that his generalisations as to the prevalence of the patriarchal power were confined to indo-european races, and that he did not pretend to dogmatise about other races, also that he was dealing not with all societies but all that had any permanence. he argues that the promiscuous horde, where and when it is found, is to be explained as an abnormal case of retrogression due to a fortuitous scarcity of females resulting in polyandry, and he opposes to the theory of its predominance the potency of sexual jealousy which might serve as only another name for the patriarchal power. on the whole the better opinion is certainly with maine. his theory, at any rate, alone accords with a view of society so soon as it is seen to possess any degree of civilisation and social cohesion. it will be seen that maine's work, like that of most great thinkers, presents a singular coherence and intellectual elegance. it is distinguished also by an extraordinary wide range of vision. he lays under contribution with equal felicity and suggestiveness the old testament, the homeric poems, the latin dramatists, the laws of the barbarians, the sacerdotal laws of the hindus, the oracles of the brehon caste, and the writings of the roman jurists. in other words, he was a master of the comparative method. few writers have thrown so much light on the development of the human mind in its social relations. we know now--a hundred disciples have followed in maine's footsteps and applied his teaching--how slow is the growth of the human intellect in these matters, with what painful steps man learns to generalise, how convulsively he clings in the infancy of civilisation to the formal, the material, the realistic aspects of things, how late he develops such abstractions as "the state." in all this maine first showed the way. as sir frederick pollock has admirably put it-- nowadays it may be said that "all have got the seed," but this is no justification for forgetting who first cleared and sowed the ground. we may till fields that the master left untouched, and one man will bring a better ox to yoke to the plough, and another a worse; but it is the master's plough still. we may conclude with some remarks on maine's views of the contemporary problems of political society. maine was what, for want of a better term, may be called a conservative, and, indeed, it may be doubted whether, with the single exception of burke, any english writer has done more to provide english conservatives with reasons for the faith that is in them. he has set forth his views in a collection of polemical essays under the title of _popular government_, which were given to the world in book form in . he viewed the advent of democracy with more distrust than alarm--he appears to have thought it a form of government which could not last--and he has an unerring eye for its weaknesses.[ ] indeed, his remarks on the facility with which democracy yields itself to manipulation by wire-pullers, newspapers, and demagogues, have found not a little confirmation in such studies of the actual working of democratic government as m. ostrogorski's _democracy and the organisation of political parties_. maine emphasised the tyranny of majorities, the enslavement of untutored minds by political catchwords, their susceptibility to "suggestion," their readiness to adopt vicarious opinion in preference to an intellectual exercise of their own volition. it is not surprising that the writer who had subjected the theories of the social contract to such merciless criticism sighed for a scientific analysis of political terms as the first step to clear thinking about politics. here he was on strong ground, but for such an analysis we have yet to wait.[ ] he seems to have placed his hopes in the adoption of some kind of written constitution which, like the american prototype, would safeguard us from fundamental changes by the caprice of a single assembly. but this is not the place to pursue such highly debateable matters. enough if we say that the man who wishes to serve an apprenticeship to an intelligent understanding of the political society of the present cannot do better than begin by a careful study of maine's researches into the political society of the past. j.h. morgan. _note._--the reader who desires to study maine in the light of modern criticism is recommended to read sir f. pollock's "notes on maine's _ancient law_" (published by john murray at _s._ _d._, or, with the text, at _s._). the best short study of maine with which i am acquainted is the article by professor vinogradoff in the _law quarterly review_ for april . the field of research covered by maine in his various writings is so vast that it is impossible to refer the reader, except at great length, to anything like an adequate list of later books on the subjects of his investigation. in addition to the works on the village community mentioned in a previous footnote, i may, however, refer the beginner to mr. edward jenks' little book on _the history of politics_ in dent's primers, to professor ashley's translation of a fragment of fustel de coulanges under the title of _the origin of property in land_, and to sir frederick pollock's brilliant little book, _the expansion of the common law_. the reader is also recommended to study mr. h.a.l. fisher's succinct survey of the contributions of maitland to legal history under the title of _f.w. maitland; an appreciation_ (cambridge university press). one of the most brilliant and ingenious studies of the origins of european civilisation is to be found in the work of the great german jurist, ihering, _die vorgeschichte der indo-europder_, translated into english under the title of _the early history of the indo-european races_ (sonnenschein, ). [ ] the reader who desires to pursue the subject by reference to one of maine's chief authorities is recommended to read the translation of the _institutes_ by sandars. [ ] english literature on the subject is best studied in maitland's _domesday book and beyond_, vinogradoff's _the growth of the manor_ and _villeinage in england_ (with an excellent historical introduction), and seebohm's _english village community_. [ ] witness the characteristic sentence: "on the whole they [_i.e._ the studies of earlier society] suggest that the differences which, after ages of change, separate the civilised man from savage or barbarian, are not so great as the vulgar opinion would have them.... like the savage, he is a man of party with a newspaper for a totem ... and like a savage he is apt to make of his totem his god." [ ] something of the kind was done many years ago by sir george cornewall lewis in his little book on the _use and abuse of political terms_. i have attempted to carry the task a step farther in an article which appeared in the form of a review of lord morley's "history and politics" in the _nineteenth century_ for march . bibliography navis ornate atque armata in aquam deducitur (prize poem), ; the birth of the prince of wales (prize poem), ; cæsar ad rubiconem constitit (prize poem), ; memoir of h.f. hallam, ; roman law and legal education (essay), ; ancient law: its connection with the early history of society and its relation to modern ideas, ; short essays and reviews on the educational policy of the government of india, ; village communities in the east and west (lectures), ; the early history of the property of married women as collected from roman and hindoo law (lecture), ; the effects of observation of india on modern european thought (lecture), ; lectures on the early history of institutions, ; village communities, etc.; third ed. with other lectures and addresses, ; dissertations on early law and custom (selected from lectures), ; popular government (four essays), ; india [ - ] (in "the reign of queen victoria," ed. by thos. humphry ward, vol. i.), ; the whewell lectures: international law, , ; ancient law (ed. with introduction and notes by sir frederick pollock), ; ancient law (allahabad ed., with introduction by k.c. banerji), . contributions to: "morning chronicle," ; "cornhill magazine," ; "quarterly review," ; "saturday review," and "st. james's gazette." a brief memoir of the life of sir henry maine, by sir m.e. grant duff; with some of his indian speeches and minutes, selected by whitley stokes, . preface the chief object of the following pages is to indicate some of the earliest ideas of mankind, as they are reflected in ancient law, and to point out the relation of those ideas to modern thought. much of the inquiry attempted could not have been prosecuted with the slightest hope of a useful result if there had not existed a body of law, like that of the romans, bearing in its earliest portions the traces of the most remote antiquity and supplying from its later rules the staple of the civil institutions by which modern society is even now controlled. the necessity of taking the roman law as a typical system has compelled the author to draw from it what may appear a disproportionate number of his illustrations; but it has not been his intention to write a treatise on roman jurisprudence, and he has as much as possible avoided all discussions which might give that appearance to his work. the space allotted in the third and fourth chapters to certain philosophical theories of the roman jurisconsults has been appropriated to them for two reasons. in the first place, those theories appear to the author to have had a wider and more permanent influence on the thought and action of the world than is usually supposed. secondly, they are believed to be the ultimate source of most of the views which have been prevalent, till quite recently, on the subjects treated of in this volume. it was impossible for the author to proceed far with his undertaking without stating his opinion on the origin, meaning, and value of those speculations. h.s.m. london, _january _. contents chap. page i. ancient codes ii. legal fictions iii. law of nature and equity iv. the modern history of the law of nature v. primitive society and ancient law vi. the early history of testamentary succession vii. ancient and modern ideas respecting wills and successions viii. the early history of property ix. the early history of contract x. the early history of delict and crime index chapter i ancient codes the most celebrated system of jurisprudence known to the world begins, as it ends, with a code. from the commencement to the close of its history, the expositors of roman law consistently employed language which implied that the body of their system rested on the twelve decemviral tables, and therefore on a basis of written law. except in one particular, no institutions anterior to the twelve tables were recognised at rome. the theoretical descent of roman jurisprudence from a code, the theoretical ascription of english law to immemorial unwritten tradition, were the chief reasons why the development of their system differed from the development of ours. neither theory corresponded exactly with the facts, but each produced consequences of the utmost importance. i need hardly say that the publication of the twelve tables is not the earliest point at which we can take up the history of law. the ancient roman code belongs to a class of which almost every civilised nation in the world can show a sample, and which, so far as the roman and hellenic worlds were concerned, were largely diffused over them at epochs not widely distant from one another. they appeared under exceedingly similar circumstances, and were produced, to our knowledge, by very similar causes. unquestionably, many jural phenomena lie behind these codes and preceded them in point of time. not a few documentary records exist which profess to give us information concerning the early phenomena of law; but, until philology has effected a complete analysis of the sanskrit literature, our best sources of knowledge are undoubtedly the greek homeric poems, considered of course not as a history of actual occurrences, but as a description, not wholly idealised, of a state of society known to the writer. however the fancy of the poet may have exaggerated certain features of the heroic age, the prowess of warriors and the potency of gods, there is no reason to believe that it has tampered with moral or metaphysical conceptions which were not yet the subjects of conscious observation; and in this respect the homeric literature is far more trustworthy than those relatively later documents which pretend to give an account of times similarly early, but which were compiled under philosophical or theological influences. if by any means we can determine the early forms of jural conceptions, they will be invaluable to us. these rudimentary ideas are to the jurist what the primary crusts of the earth are to the geologist. they contain, potentially, all the forms in which law has subsequently exhibited itself. the haste or the prejudice which has generally refused them all but the most superficial examination, must bear the blame of the unsatisfactory condition in which we find the science of jurisprudence. the inquiries of the jurist are in truth prosecuted much as inquiry in physics and physiology was prosecuted before observation had taken the place of assumption. theories, plausible and comprehensive, but absolutely unverified, such as the law of nature or the social compact, enjoy a universal preference over sober research into the primitive history of society and law; and they obscure the truth not only by diverting attention from the only quarter in which it can be found, but by that most real and most important influence which, when once entertained and believed in, they are enabled to exercise on the later stages of jurisprudence. the earliest notions connected with the conception, now so fully developed, of a law or rule of life, are those contained in the homeric words "themis" and "themistes." "themis," it is well known, appears in the later greek pantheon as the goddess of justice, but this is a modern and much developed idea, and it is in a very different sense that themis is described in the iliad as the assessor of zeus. it is now clearly seen by all trustworthy observers of the primitive condition of mankind that, in the infancy of the race, men could only account for sustained or periodically recurring action by supposing a personal agent. thus, the wind blowing was a person and of course a divine person; the sun rising, culminating, and setting was a person and a divine person; the earth yielding her increase was a person and divine. as, then, in the physical world, so in the moral. when a king decided a dispute by a sentence, the judgment was assumed to be the result of direct inspiration. the divine agent, suggesting judicial awards to kings or to gods, the greatest of kings, was _themis_. the peculiarity of the conception is brought out by the use of the plural. _themistes_, themises, the plural of _themis_, are the awards themselves, divinely dictated to the judge. kings are spoken of as if they had a store of "themistes" ready to hand for use; but it must be distinctly understood that they are not laws, but judgments. "zeus, or the human king on earth," says mr. grote, in his history of greece, "is not a lawmaker, but a judge." he is provided with themistes, but, consistently with the belief in their emanation from above, they cannot be supposed to be connected by any thread of principle; they are separate, isolated judgments. even in the homeric poems, we can see that these ideas are transient. parities of circumstance were probably commoner in the simple mechanism of ancient society than they are now, and in the succession of similar cases awards are likely to follow and resemble each other. here we have the germ or rudiment of a custom, a conception posterior to that of themistes or judgments. however strongly we, with our modern associations, may be inclined to lay down _à priori_ that the notion of a custom must precede that of a judicial sentence, and that a judgment must affirm a custom or punish its breach, it seems quite certain that the historical order of the ideas is that in which i have placed them. the homeric word for a custom in the embryo is sometimes "themis" in the singular--more often "dike," the meaning of which visibly fluctuates between a "judgment" and a "custom" or "usage." [greek: nomos], a law, so great and famous a term in the political vocabulary of the later greek society, does not occur in homer. this notion of a divine agency, suggesting the themistes, and itself impersonated in themis, must be kept apart from other primitive beliefs with which a superficial inquirer might confound it. the conception of the deity dictating an entire code or body of law, as in the case of the hindoo laws of menu, seems to belong to a range of ideas more recent and more advanced. "themis" and "themistes" are much less remotely linked with that persuasion which clung so long and so tenaciously to the human mind, of a divine influence underlying and supporting every relation of life, every social institution. in early law, and amid the rudiments of political thought, symptoms of this belief meet us on all sides. a supernatural presidency is supposed to consecrate and keep together all the cardinal institutions of those times, the state, the race, and the family. men, grouped together in the different relations which those institutions imply, are bound to celebrate periodically common rites and to offer common sacrifices; and every now and then the same duty is even more significantly recognised in the purifications and expiations which they perform, and which appear intended to deprecate punishment for involuntary or neglectful disrespect. everybody acquainted with ordinary classical literature will remember the _sacra gentilicia_, which exercised so important an influence on the early roman law of adoption and of wills. and to this hour the hindoo customary law, in which some of the most curious features of primitive society are stereotyped, makes almost all the rights of persons and all the rules of succession hinge on the due solemnisation of fixed ceremonies at the dead man's funeral, that is, at every point where a breach occurs in the continuity of the family. before we quit this stage of jurisprudence, a caution may be usefully given to the english student. bentham, in his _fragment on government_, and austin, in his _province of jurisprudence determined_, resolve every law into a _command_ of the lawgiver, _an obligation_ imposed thereby on the citizen, and a _sanction_ threatened in the event of disobedience; and it is further predicated of the _command_, which is the first element in a law, that it must prescribe, not a single act, but a series or number of acts of the same class or kind. the results of this separation of ingredients tally exactly with the facts of mature jurisprudence; and, by a little straining of language, they may be made to correspond in form with all law, of all kinds, at all epochs. it is not, however, asserted that the notion of law entertained by the generality is even now quite in conformity with this dissection; and it is curious that, the farther we penetrate into the primitive history of thought, the farther we find ourselves from a conception of law which at all resembles a compound of the elements which bentham determined. it is certain that, in the infancy of mankind, no sort of legislature, not even a distinct author of law, is contemplated or conceived of. law has scarcely reached the footing of custom; it is rather a habit. it is, to use a french phrase, "in the air." the only authoritative statement of right and wrong is a judicial sentence after the facts, not one presupposing a law which has been violated, but one which is breathed for the first time by a higher power into the judge's mind at the moment of adjudication. it is of course extremely difficult for us to realise a view so far removed from us in point both of time and of association, but it will become more credible when we dwell more at length on the constitution of ancient society, in which every man, living during the greater part of his life under the patriarchal despotism, was practically controlled in all his actions by a regimen not of law but of caprice. i may add that an englishman should be better able than a foreigner to appreciate the historical fact that the "themistes" preceded any conception of law, because, amid the many inconsistent theories which prevail concerning the character of english jurisprudence, the most popular, or at all events the one which most affects practice, is certainly a theory which assumes that adjudged cases and precedents exist antecedently to rules, principles, and distinctions. the "themistes" have too, it should be remarked, the characteristic which, in the view of bentham and austin, distinguishes single or mere commands from laws. a true law enjoins on all the citizens indifferently a number of acts similar in class or kind; and this is exactly the feature of a law which has most deeply impressed itself on the popular mind, causing the term "law" to be applied to mere uniformities, successions, and similitudes. a _command_ prescribes only a single act, and it is to commands, therefore, that "themistes" are more akin than to laws. they are simply adjudications on insulated states of fact, and do not necessarily follow each other in any orderly sequence. the literature of the heroic age discloses to us law in the germ under the "themistes" and a little more developed in the conception of "dike." the next stage which we reach in the history of jurisprudence is strongly marked and surrounded by the utmost interest. mr. grote, in the second part and second chapter of his history, has fully described the mode in which society gradually clothed itself with a different character from that delineated by homer. heroic kingship depended partly on divinely given prerogative, and partly on the possession of supereminent strength, courage, and wisdom. gradually, as the impression of the monarch's sacredness became weakened, and feeble members occurred in the series of hereditary kings, the royal power decayed, and at last gave way to the dominion of aristocracies. if language so precise can be used of the revolution, we might say that the office of the king was usurped by that council of chiefs which homer repeatedly alludes to and depicts. at all events from an epoch of kingly rule we come everywhere in europe to an era of oligarchies; and even where the name of the monarchical functions does not absolutely disappear, the authority of the king is reduced to a mere shadow. he becomes a mere hereditary general, as in lacedæmon, a mere functionary, as the king archon at athens, or a mere formal hierophant, like the _rex sacrificulus_ at rome. in greece, italy, and asia minor, the dominant orders seem to have universally consisted of a number of families united by an assumed relationship in blood, and, though they all appear at first to have laid claim to a quasi-sacred character, their strength does not seem to have resided in their pretended sanctity. unless they were prematurely overthrown by the popular party, they all ultimately approached very closely to what we should now understand by a political aristocracy. the changes which society underwent in the communities of the further asia occurred of course at periods long anterior in point of time to these revolutions of the italian and hellenic worlds; but their relative place in civilisation appears to have been the same, and they seem to have been exceedingly similar in general character. there is some evidence that the races which were subsequently united under the persian monarchy, and those which peopled the peninsula of india, had all their heroic age and their era of aristocracies; but a military and a religious oligarchy appear to have grown up separately, nor was the authority of the king generally superseded. contrary, too, to the course of events in the west, the religious element in the east tended to get the better of the military and political. military and civil aristocracies disappear, annihilated or crushed into insignificance between the kings and the sacerdotal order; and the ultimate result at which we arrive is, a monarch enjoying great power, but circumscribed by the privileges of a caste of priests. with these differences, however, that in the east aristocracies became religious, in the west civil or political, the proposition that a historical era of aristocracies succeeded a historical era of heroic kings may be considered as true, if not of all mankind, at all events of all branches of the indo-european family of nations. the important point for the jurist is that these aristocracies were universally the depositaries and administrators of law. they seem to have succeeded to the prerogatives of the king, with the important difference, however, that they do not appear to have pretended to direct inspiration for each sentence. the connection of ideas which caused the judgments of the patriarchal chieftain to be attributed to superhuman dictation still shows itself here and there in the claim of a divine origin for the entire body of rules, or for certain parts of it, but the progress of thought no longer permits the solution of particular disputes to be explained by supposing an extra-human interposition. what the juristical oligarchy now claims is to monopolise the _knowledge_ of the laws, to have the exclusive possession of the principles by which quarrels are decided. we have in fact arrived at the epoch of customary law. customs or observances now exist as a substantive aggregate, and are assumed to be precisely known to the aristocratic order or caste. our authorities leave us no doubt that the trust lodged with the oligarchy was sometimes abused, but it certainly ought not to be regarded as a mere usurpation or engine of tyranny. before the invention of writing, and during the infancy of the art, an aristocracy invested with judicial privileges formed the only expedient by which accurate preservation of the customs of the race or tribe could be at all approximated to. their genuineness was, so far as possible, insured by confiding them to the recollection of a limited portion of the community. the epoch of customary law, and of its custody by a privileged order, is a very remarkable one. the condition of the jurisprudence which it implies has left traces which may still be detected in legal and popular phraseology. the law, thus known exclusively to a privileged minority, whether a caste, an aristocracy, a priestly tribe, or a sacerdotal college is true unwritten law. except this, there is no such thing as unwritten law in the world. english case-law is sometimes spoken of as unwritten, and there are some english theorists who assure us that if a code of english jurisprudence were prepared we should be turning unwritten law into written--a conversion, as they insist, if not of doubtful policy, at all events of the greatest seriousness. now, it is quite true that there was once a period at which the english common law might reasonably have been termed unwritten. the elder english judges did really pretend to knowledge of rules, principles, and distinctions which were not entirely revealed to the bar and to the lay-public. whether all the law which they claimed to monopolise was really unwritten, is exceedingly questionable; but at all events, on the assumption that there was once a large mass of civil and criminal rules known exclusively to the judges, it presently ceased to be unwritten law. as soon as the courts at westminster hall began to base their judgments on cases recorded, whether in the year books or elsewhere, the law which they administered became written law. at the present moment a rule of english law has first to be disentangled from the recorded facts of adjudged printed precedents, then thrown into a form of words varying with the taste, precision, and knowledge of the particular judge, and then applied to the circumstances of the case for adjudication. but at no stage of this process has it any characteristic which distinguishes it from written law. it is written case-law, and only different from code-law because it is written in a different way. from the period of customary law we come to another sharply defined epoch in the history of jurisprudence. we arrive at the era of codes, those ancient codes of which the twelve tables of rome were the most famous specimen. in greece, in italy, on the hellenised sea-board of western asia, these codes all made their appearance at periods much the same everywhere, not, i mean, at periods identical in point of time, but similar in point of the relative progress of each community. everywhere, in the countries i have named, laws engraven on tablets and published to the people take the place of usages deposited with the recollection of a privileged oligarchy. it must not for a moment be supposed that the refined considerations now urged in favour of what is called codification had any part or place in the change i have described. the ancient codes were doubtless originally suggested by the discovery and diffusion of the art of writing. it is true that the aristocracies seem to have abused their monopoly of legal knowledge; and at all events their exclusive possession of the law was a formidable impediment to the success of those popular movements which began to be universal in the western world. but, though democratic sentiment may have added to their popularity, the codes were certainly in the main a direct result of the invention of writing. inscribed tablets were seen to be a better depositary of law, and a better security for its accurate preservation, than the memory of a number of persons however strengthened by habitual exercise. the roman code belongs to the class of codes i have been describing. their value did not consist in any approach to symmetrical classifications, or to terseness and clearness of expression, but in their publicity, and in the knowledge which they furnished to everybody, as to what he was to do, and what not to do. it is, indeed, true that the twelve tables of rome do exhibit some traces of systematic arrangement, but this is probably explained by the tradition that the framers of that body of law called in the assistance of greeks who enjoyed the later greek experience in the art of law-making. the fragments of the attic code of solon show, however, that it had but little order, and probably the laws of draco had even less. quite enough too remains of these collections, both in the east and in the west, to show that they mingled up religious, civil, and merely moral ordinances, without any regard to differences in their essential character; and this is consistent with all we know of early thought from other sources, the severance of law from morality, and of religion from law, belonging very distinctly to the _later_ stages of mental progress. but, whatever to a modern eye are the singularities of these codes, their importance to ancient societies was unspeakable. the question--and it was one which affected the whole future of each community--was not so much whether there should be a code at all, for the majority of ancient societies seem to have obtained them sooner or later, and, but for the great interruption in the history of jurisprudence created by feudalism, it is likely that all modern law would be distinctly traceable to one or more of these fountain-heads. but the point on which turned the history of the race was, at what period, at what stage of their social progress, they should have their laws put into writing. in the western world the plebeian or popular element in each state successfully assailed the oligarchical monopoly, and a code was nearly universally obtained _early_ in the history of the commonwealth. but in the east, as i have before mentioned, the ruling aristocracies tended to become religious rather than military or political, and gained, therefore, rather than lost in power; while in some instances the physical conformation of asiatic countries had the effect of making individual communities larger and more numerous than in the west; and it is a known social law that the larger the space over which a particular set of institutions is diffused, the greater is its tenacity and vitality. from whatever cause, the codes obtained by eastern societies were obtained, relatively, much later than by western, and wore a very different character. the religious oligarchies of asia, either for their own guidance, or for the relief of their memory, or for the instruction of their disciples, seem in all cases to have ultimately embodied their legal learning in a code; but the opportunity of increasing and consolidating their influence was probably too tempting to be resisted. their complete monopoly of legal knowledge appears to have enabled them to put off on the world collections, not so much of the rules actually observed as of the rules which the priestly order considered proper to be observed. the hindoo code, called the laws of menu, which is certainly a brahmin compilation, undoubtedly enshrines many genuine observances of the hindoo race, but the opinion of the best contemporary orientalists is, that it does not, as a whole, represent a set of rules ever actually administered in hindostan. it is, in great part, an ideal picture of that which, in the view of the brahmins, _ought_ to be the law. it is consistent with human nature and with the special motives of their authors, that codes like that of menu should pretend to the highest antiquity and claim to have emanated in their complete form from the deity. menu, according to hindoo mythology, is an emanation from the supreme god; but the compilation which bears his name, though its exact date is not easily discovered, is, in point of the relative progress of hindoo jurisprudence, a recent production. among the chief advantages which the twelve tables and similar codes conferred on the societies which obtained them, was the protection which they afforded against the frauds of the privileged oligarchy and also against the spontaneous depravation and debasement of the national institutions. the roman code was merely an enunciation in words of the existing customs of the roman people. relatively to the progress of the romans in civilisation, it was a remarkably early code, and it was published at a time when roman society had barely emerged from that intellectual condition in which civil obligation and religious duty are inevitably confounded. now a barbarous society practising a body of customs, is exposed to some especial dangers which may be absolutely fatal to its progress in civilisation. the usages which a particular community is found to have adopted in its infancy and in its primitive seats are generally those which are on the whole best suited to promote its physical and moral well-being; and, if they are retained in their integrity until new social wants have taught new practices, the upward march of society is almost certain. but unhappily there is a law of development which ever threatens to operate upon unwritten usage. the customs are of course obeyed by multitudes who are incapable of understanding the true ground of their expediency, and who are therefore left inevitably to invent superstitious reasons for their permanence. a process then commences which may be shortly described by saying that usage which is reasonable generates usage which is unreasonable. analogy, the most valuable of instruments in the maturity of jurisprudence, is the most dangerous of snares in its infancy. prohibitions and ordinances, originally confined, for good reasons, to a single description of acts, are made to apply to all acts of the same class, because a man menaced with the anger of the gods for doing one thing, feels a natural terror in doing any other thing which is remotely like it. after one kind of food has been interdicted for sanitary reasons, the prohibition is extended to all food resembling it, though the resemblance occasionally depends on analogies the most fanciful. so, again, a wise provision for insuring general cleanliness dictates in time long routines of ceremonial ablution; and that division into classes which at a particular crisis of social history is necessary for the maintenance of the national existence degenerates into the most disastrous and blighting of all human institutions--caste. the fate of the hindoo law is, in fact, the measure of the value of the roman code. ethnology shows us that the romans and the hindoos sprang from the same original stock, and there is indeed a striking resemblance between what appear to have been their original customs. even now, hindoo jurisprudence has a substratum of forethought and sound judgment, but irrational imitation has engrafted in it an immense apparatus of cruel absurdities. from these corruptions the romans were protected by their code. it was compiled while the usage was still wholesome, and a hundred years afterwards it might have been too late. the hindoo law has been to a great extent embodied in writing, but, ancient as in one sense are the compendia which still exist in sanskrit, they contain ample evidence that they were drawn up after the mischief had been done. we are not of course entitled to say that if the twelve tables had not been published the romans would have been condemned to a civilisation as feeble and perverted as that of the hindoos, but thus much at least is certain, that _with_ their code they were exempt from the very chance of so unhappy a destiny. chapter ii legal fictions when primitive law has once been embodied in a code, there is an end to what may be called its spontaneous development. henceforward the changes effected in it, if effected at all, are effected deliberately and from without. it is impossible to suppose that the customs of any race or tribe remained unaltered during the whole of the long--in some instances the immense--interval between their declaration by a patriarchal monarch and their publication in writing. it would be unsafe too to affirm that no part of the alteration was effected deliberately. but from the little we know of the progress of law during this period, we are justified in assuming that set purpose had the very smallest share in producing change. such innovations on the earliest usages as disclose themselves appear to have been dictated by feelings and modes of thought which, under our present mental conditions, we are unable to comprehend. a new era begins, however, with the codes. wherever, after this epoch, we trace the course of legal modification we are able to attribute it to the conscious desire of improvement, or at all events of compassing objects other than those which were aimed at in the primitive times. it may seem at first sight that no general propositions worth trusting can be elicited from the history of legal systems subsequent to the codes. the field is too vast. we cannot be sure that we have included a sufficient number of phenomena in our observations, or that we accurately understand those which we have observed. but the undertaking will be seen to be more feasible, if we consider that after the epoch of codes the distinction between stationary and progressive societies begins to make itself felt. it is only with the progressive that we are concerned, and nothing is more remarkable than their extreme fewness. in spite of overwhelming evidence, it is most difficult for a citizen of western europe to bring thoroughly home to himself the truth that the civilisation which surrounds him is a rare exception in the history of the world. the tone of thought common among us, all our hopes, fears, and speculations, would be materially affected, if we had vividly before us the relation of the progressive races to the totality of human life. it is indisputable that much the greatest part of mankind has never shown a particle of desire that its civil institutions should be improved since the moment when external completeness was first given to them by their embodiment in some permanent record. one set of usages has occasionally been violently overthrown and superseded by another; here and there a primitive code, pretending to a supernatural origin, has been greatly extended, and distorted into the most surprising forms, by the perversity of sacerdotal commentators; but, except in a small section of the world, there has been nothing like the gradual amelioration of a legal system. there has been material civilisation, but, instead of the civilisation expanding the law, the law has limited the civilisation. the study of races in their primitive condition affords us some clue to the point at which the development of certain societies has stopped. we can see that brahminical india has not passed beyond a stage which occurs in the history of all the families of mankind, the stage at which a rule of law is not yet discriminated from a rule of religion. the members of such a society consider that the transgression of a religious ordinance should be punished by civil penalties, and that the violation of a civil duty exposes the delinquent to divine correction. in china this point has been passed, but progress seems to have been there arrested, because the civil laws are coextensive with all the ideas of which the race is capable. the difference between the stationary and progressive societies is, however, one of the great secrets which inquiry has yet to penetrate. among partial explanations of it i venture to place the considerations urged at the end of the last chapter. it may further be remarked that no one is likely to succeed in the investigation who does not clearly realise that the stationary condition of the human race is the rule, the progressive the exception. and another indispensable condition of success is an accurate knowledge of roman law in all its principal stages. the roman jurisprudence has the longest known history of any set of human institutions. the character of all the changes which it underwent is tolerably well ascertained. from its commencement to its close, it was progressively modified for the better, or for what the authors of the modification conceived to be the better, and the course of improvement was continued through periods at which all the rest of human thought and action materially slackened its pace, and repeatedly threatened to settle down into stagnation. i confine myself in what follows to the progressive societies. with respect to them it may be laid down that social necessities and social opinion are always more or less in advance of law. we may come indefinitely near to the closing of the gap between them, but it has a perpetual tendency to reopen. law is stable; the societies we are speaking of are progressive. the greater or less happiness of a people depends on the degree of promptitude with which the gulf is narrowed. a general proposition of some value may be advanced with respect to the agencies by which law is brought into harmony with society. these instrumentalities seem to me to be three in number, legal fictions, equity, and legislation. their historical order is that in which i have placed them. sometimes two of them will be seen operating together, and there are legal systems which have escaped the influence of one or other of them. but i know of no instance in which the order of their appearance has been changed or inverted. the early history of one of them, equity, is universally obscure, and hence it may be thought by some that certain isolated statutes, reformatory of the civil law, are older than any equitable jurisdiction. my own belief is that remedial equity is everywhere older than remedial legislation; but, should this be not strictly true, it would only be necessary to limit the proposition respecting their order of sequence to the periods at which they exercise a sustained and substantial influence in transforming the original law. i employ the word "fiction" in a sense considerably wider than that in which english lawyers are accustomed to use it, and with a meaning much more extensive than that which belonged to the roman "fictiones." fictio, in old roman law, is properly a term of pleading, and signifies a false averment on the part of the plaintiff which the defendant was not allowed to traverse; such, for example, as an averment that the plaintiff was a roman citizen, when in truth he was a foreigner. the object of these "fictiones" was, of course, to give jurisdiction, and they therefore strongly resembled the allegations in the writs of the english queen's bench, and exchequer, by which those courts contrived to usurp the jurisdiction of the common pleas:--the allegation that the defendant was in custody of the king's marshal, or that the plaintiff was the king's debtor, and could not pay his debt by reason of the defendant's default. but i now employ the expression "legal fiction" to signify any assumption which conceals, or affects to conceal, the fact that a rule of law has undergone alteration, its letter remaining unchanged, its operation being modified. the words, therefore, include the instances of fictions which i have cited from the english and roman law, but they embrace much more, for i should speak both of the english case-law and of the roman responsa prudentum as resting on fictions. both these examples will be examined presently. the _fact_ is in both cases that the law has been wholly changed; the _fiction_ is that it remains what it always was. it is not difficult to understand why fictions in all their forms are particularly congenial to the infancy of society. they satisfy the desire for improvement, which is not quite wanting, at the same time that they do not offend the superstitious disrelish for change which is always present. at a particular stage of social progress they are invaluable expedients for overcoming the rigidity of law, and, indeed, without one of them, the fiction of adoption which permits the family tie to be artificially created, it is difficult to understand how society would ever have escaped from its swaddling clothes, and taken its first steps towards civilisation. we must, therefore, not suffer ourselves to be affected by the ridicule which bentham pours on legal fictions wherever he meets them. to revile them as merely fraudulent is to betray ignorance of their peculiar office in the historical development of law. but at the same time it would be equally foolish to agree with those theorists, who, discerning that fictions have had their uses, argue that they ought to be stereotyped in our system. they have had their day, but it has long since gone by. it is unworthy of us to effect an admittedly beneficial object by so rude a device as a legal fiction. i cannot admit any anomaly to be innocent, which makes the law either more difficult to understand or harder to arrange in harmonious order. now legal fictions are the greatest of obstacles to symmetrical classification. the rule of law remains sticking in the system, but it is a mere shell. it has been long ago undermined, and a new rule hides itself under its cover. hence there is at once a difficulty in knowing whether the rule which is actually operative should be classed in its true or in its apparent place, and minds of different casts will differ as to the branch of the alternative which ought to be selected. if the english law is ever to assume an orderly distribution, it will be necessary to prune away the legal fictions which, in spite of some recent legislative improvements, are still abundant in it. the next instrumentality by which the adaptation of law to social wants is carried on i call equity, meaning by that word any body of rules existing by the side of the original civil law, founded on distinct principles and claiming incidentally to supersede the civil law in virtue of a superior sanctity inherent in those principles. the equity whether of the roman prætors or of the english chancellors, differs from the fictions which in each case preceded it, in that the interference with law is open and avowed. on the other hand, it differs from legislation, the agent of legal improvement which comes after it, in that its claim to authority is grounded, not on the prerogative of any external person or body, not even on that of the magistrate who enunciates it, but on the special nature of its principles, to which it is alleged that all law ought to conform. the very conception of a set of principles, invested with a higher sacredness than those of the original law and demanding application independently of the consent of any external body, belongs to a much more advanced stage of thought than that to which legal fictions originally suggested themselves. legislation, the enactments of a legislature which, whether it take the form of an autocratic prince or of a parliamentary assembly, is the assumed organ of the entire society, is the last of the ameliorating instrumentalities. it differs from legal fictions just as equity differs from them, and it is also distinguished from equity, as deriving its authority from an external body or person. its obligatory force is independent of its principles. the legislature, whatever be the actual restraints imposed on it by public opinion, is in theory empowered to impose what obligations it pleases on the members of the community. there is nothing to prevent its legislating in the wantonness of caprice. legislation may be dictated by equity, if that last word be used to indicate some standard of right and wrong to which its enactments happen to be adjusted; but then these enactments are indebted for their binding force to the authority of the legislature and not to that of the principles on which the legislature acted; and thus they differ from rules of equity, in the technical sense of the word, which pretend to a paramount sacredness entitling them at once to the recognition of the courts even without the concurrence of prince or parliamentary assembly. it is the more necessary to note these differences, because a student of bentham would be apt to confound fictions, equity, and statute law under the single head of legislation. they all, he would say, involve _law-making_; they differ only in respect of the machinery by which the new law is produced. that is perfectly true, and we must never forget it; but it furnishes no reason why we should deprive ourselves of so convenient a term as legislation in the special sense. legislation and equity are disjoined in the popular mind and in the minds of most lawyers; and it will never do to neglect the distinction between them, however conventional, when important practical consequences follow from it. it would be easy to select from almost any regularly developed body of rules examples of _legal fictions_, which at once betray their true character to the modern observer. in the two instances which i proceed to consider, the nature of the expedient employed is not so readily detected. the first authors of these fictions did not perhaps intend to innovate, certainly did not wish to be suspected of innovating. there are, moreover, and always have been, persons who refuse to see any fiction in the process, and conventional language bears out their refusal. no examples, therefore, can be better calculated to illustrate the wide diffusion of legal fictions, and the efficiency with which they perform their two-fold office of transforming a system of laws and of concealing the transformation. we in england are well accustomed to the extension, modification, and improvement of law by a machinery which, in theory, is incapable of altering one jot or one line of existing jurisprudence. the process by which this virtual legislation is effected is not so much insensible as unacknowledged. with respect to that great portion of our legal system which is enshrined in cases and recorded in law reports, we habitually employ a double language and entertain, as it would appear, a double and inconsistent set of ideas. when a group of facts come before an english court for adjudication, the whole course of the discussion between the judge and the advocate assumes that no question is, or can be, raised which will call for the application of any principles but old ones, or any distinctions but such as have long since been allowed. it is taken absolutely for granted that there is somewhere a rule of known law which will cover the facts of the dispute now litigated, and that, if such a rule be not discovered, it is only that the necessary patience, knowledge, or acumen is not forthcoming to detect it. yet the moment the judgment has been rendered and reported, we slide unconsciously or unavowedly into a new language and a new train of thought. we now admit that the new decision _has_ modified the law. the rules applicable have, to use the very inaccurate expression sometimes employed, become more elastic. in fact they have been changed. a clear addition has been made to the precedents, and the canon of law elicited by comparing the precedents is not the same with that which would have been obtained if the series of cases had been curtailed by a single example. the fact that the old rule has been repealed, and that a new one has replaced it, eludes us, because we are not in the habit of throwing into precise language the legal formulas which we derive from the precedents, so that a change in their tenor is not easily detected unless it is violent and glaring. i shall not now pause to consider at length the causes which have led english lawyers to acquiesce in these curious anomalies. probably it will be found that originally it was the received doctrine that somewhere, _in nubibus_ or _in gremio magistratuum_, there existed a complete, coherent, symmetrical body of english law, of an amplitude sufficient to furnish principles which would apply to any conceivable combination of circumstances. the theory was at first much more thoroughly believed in than it is now, and indeed it may have had a better foundation. the judges of the thirteenth century may have really had at their command a mine of law unrevealed to the bar and to the lay-public, for there is some reason for suspecting that in secret they borrowed freely, though not always wisely, from current compendia of the roman and canon laws. but that storehouse was closed so soon as the points decided at westminster hall became numerous enough to supply a basis for a substantive system of jurisprudence; and now for centuries english practitioners have so expressed themselves as to convey the paradoxical proposition that, except by equity and statute law, nothing has been added to the basis since it was first constituted. we do not admit that our tribunals legislate; we imply that they have never legislated; and yet we maintain that the rules of the english common law, with some assistance from the court of chancery and from parliament, are coextensive with the complicated interests of modern society. a body of law bearing a very close and very instructive resemblance to our case-law in those particulars which i have noticed, was known to the romans under the name of the responsa prudentum, the "answers of the learned in the law." the form of these responses varied a good deal at different periods of the roman jurisprudence, but throughout its whole course they consisted of explanatory glosses on authoritative written documents, and at first they were exclusively collections of opinions interpretative of the twelve tables. as with us, all legal language adjusted itself to the assumption that the text of the old code remained unchanged. there was the express rule. it overrode all glosses and comments, and no one openly admitted that any interpretation of it, however eminent the interpreter, was safe from revision on appeal to the venerable texts. yet in point of fact, books of responses bearing the names of leading jurisconsults obtained an authority at least equal to that of our reported cases, and constantly modified, extended, limited or practically overruled the provisions of the decemviral law. the authors of the new jurisprudence during the whole progress of its formation professed the most sedulous respect for the letter of the code. they were merely explaining it, deciphering it, bringing out its full meaning; but then, in the result, by piecing texts together, by adjusting the law to states of fact which actually presented themselves and by speculating on its possible application to others which might occur, by introducing principles of interpretation derived from the exegesis of other written documents which fell under their observation, they educed a vast variety of canons which had never been dreamed of by the compilers of the twelve tables and which were in truth rarely or never to be found there. all these treatises of the jurisconsults claimed respect on the ground of their assumed conformity with the code, but their comparative authority depended on the reputation of the particular jurisconsults who gave them to the world. any name of universally acknowledged greatness clothed a book of responses with a binding force hardly less than that which belonged to enactments of the legislature; and such a book in its turn constituted a new foundation on which a further body of jurisprudence might rest. the responses of the early lawyers were not however published, in the modern sense, by their author. they were recorded and edited by his pupils, and were not therefore in all probability arranged according to any scheme of classification. the part of the students in these publications must be carefully noted, because the service they rendered to their teacher seems to have been generally repaid by his sedulous attention to the pupils' education. the educational treatises called institutes or commentaries, which are a later fruit of the duty then recognised, are among the most remarkable features of the roman system. it was apparently in these institutional works, and not in the books intended for trained lawyers, that the jurisconsults gave to the public their classifications and their proposals for modifying and improving the technical phraseology. in comparing the roman responsa prudentum with their nearest english counterpart, it must be carefully borne in mind that the authority by which this part of the roman jurisprudence was expounded was not the _bench_, but the _bar_. the decision of a roman tribunal, though conclusive in the particular case, had no ulterior authority except such as was given by the professional repute of the magistrate who happened to be in office for the time. properly speaking, there was no institution at rome during the republic analogous to the english bench, the chambers of imperial germany, or the parliaments of monarchical france. there were magistrates indeed, invested with momentous judicial functions in their several departments, but the tenure of the magistracies was but for a single year, so that they are much less aptly compared to a permanent judicature than to a cycle of offices briskly circulating among the leaders of the bar. much might be said on the origin of a condition of things which looks to us like a startling anomaly, but which was in fact much more congenial than our own system to the spirit of ancient societies, tending, as they always did, to split into distinct orders which, however exclusive themselves, tolerated no professional hierarchy above them. it is remarkable that this system did not produce certain effects which might on the whole have been expected from it. it did not, for example, _popularise_ the roman law--it did not, as in some of the greek republics, lessen the effort of intellect required for the mastery of the science, although its diffusion and authoritative exposition were opposed by no artificial barriers. on the contrary, if it had not been for the operation of a separate set of causes, there were strong probabilities that the roman jurisprudence would have become as minute, technical, and difficult as any system which has since prevailed. again, a consequence which might still more naturally have been looked for, does not appear at any time to have exhibited itself. the jurisconsults, until the liberties of rome were overthrown, formed a class which was quite undefined and must have fluctuated greatly in numbers; nevertheless, there does not seem to have existed a doubt as to the particular individuals whose opinion, in their generation, was conclusive on the cases submitted to them. the vivid pictures of a leading jurisconsult's daily practice which abound in latin literature--the clients from the country flocking to his antechamber in the early morning, and the students standing round with their note-books to record the great lawyer's replies--are seldom or never identified at any given period with more than one or two conspicuous names. owing too to the direct contact of the client and the advocate, the roman people itself seems to have been always alive to the rise and fall of professional reputation, and there is abundance of proof, more particularly in the well-known oration of cicero, _pro muræna_, that the reverence of the commons for forensic success was apt to be excessive rather than deficient. we cannot doubt that the peculiarities which have been noted in the instrumentality by which the development of the roman law was first effected, were the source of its characteristic excellence, its early wealth in principles. the growth and exuberance of principle was fostered, in part, by the competition among the expositors of the law, an influence wholly unknown where there exists a bench, the depositaries intrusted by king or commonwealth with the prerogative of justice. but the chief agency, no doubt, was the uncontrolled multiplication of cases for legal decision. the state of facts which caused genuine perplexity to a country client was not a whit more entitled to form the basis of the jurisconsult's response, or legal decision, than a set of hypothetical circumstances propounded by an ingenious pupil. all combinations of fact were on precisely the same footing, whether they were real or imaginary. it was nothing to the jurisconsult that his opinion was overruled for the moment by the magistrate who adjudicated on his client's case, unless that magistrate happened to rank above him in legal knowledge or the esteem of his profession. i do not, indeed, mean it to be inferred that he would wholly omit to consider his client's advantage, for the client was in earlier times the great lawyer's constituent and at a later period his paymaster, but the main road to the rewards of ambition lay through the good opinion of his order, and it is obvious that under such a system as i have been describing this was much more likely to be secured by viewing each case as an illustration of a great principle, or an exemplification of a broad rule, than by merely shaping it for an insulated forensic triumph. a still more powerful influence must have been exercised by the want of any distinct check on the suggestion or invention of possible questions. where the data can be multiplied at pleasure, the facilities for evolving a general rule are immensely increased. as the law is administered among ourselves, the judge cannot travel out of the sets of facts exhibited before him or before his predecessors. accordingly each group of circumstances which is adjudicated upon receives, to employ a gallicism, a sort of consecration. it acquires certain qualities which distinguish it from every other case genuine or hypothetical. but at rome, as i have attempted to explain, there was nothing resembling a bench or chamber of judges; and therefore no combination of facts possessed any particular value more than another. when a difficulty came for opinion before the jurisconsult, there was nothing to prevent a person endowed with a nice perception of analogy from at once proceeding to adduce and consider an entire class of supposed questions with which a particular feature connected it. whatever were the practical advice given to the client, the _responsum_ treasured up in the note-books of listening pupils would doubtless contemplate the circumstances as governed by a great principle, or included in a sweeping rule. nothing like this has ever been possible among ourselves, and it should be acknowledged that in many criticisms passed on the english law the manner in which it has been enunciated seems to have been lost sight of. the hesitation of our courts in declaring principles may be much more reasonably attributed to the comparative scantiness of our precedents, voluminous as they appear to him who is acquainted with no other system, than to the temper of our judges. it is true that in the wealth of legal principle we are considerably poorer than several modern european nations, but they, it must be remembered, took the roman jurisprudence for the foundation of their civil institutions. they built the _débris_ of the roman law into their walls; but in the materials, and workmanship of the residue there is not much which distinguishes it favourably from the structure erected by the english judicature. the period of roman freedom was the period during which the stamp of a distinctive character was impressed on the roman jurisprudence; and through all the earlier part of it, it was by the responses of the jurisconsults that the development of the law was mainly carried on. but as we approach the fall of the republic there are signs that the responses are assuming a form which must have been fatal to their farther expansion. they are becoming systematised and reduced into compendia. q. mucius scævola, the pontifex, is said to have published a manual of the entire civil law, and there are traces in the writings of cicero of growing disrelish for the old methods, as compared with the more active instruments of legal innovation. other agencies had in fact by this time been brought to bear on the law. the edict, or annual proclamation of the prætor, had risen into credit as the principal engine of law reform, and l. cornelius sylla, by causing to be enacted the great group of statutes called the _leges corneliæ_, had shown what rapid and speedy improvements can be effected by direct legislation. the final blow to the responses was dealt by augustus, who limited to a few leading jurisconsults the right of giving binding opinions on cases submitted to them, a change which, though it brings us nearer the ideas of the modern world, must obviously have altered fundamentally the characteristics of the legal profession and the nature of its influence on roman law. at a later period another school of jurisconsults arose, the great lights of jurisprudence for all time. but ulpian and paulus, gaius and papinian, were not authors of responses. their works were regular treatises on particular departments of the law, more especially on the prætor's edict. the _equity_ of the romans and the prætorian edict by which it was worked into their system, will be considered in the next chapter. of the statute law it is only necessary to say that it was scanty during the republic, but became very voluminous under the empire. in the youth and infancy of a nation it is a rare thing for the legislature to be called into action for the general reform of private law. the cry of the people is not for change in the laws, which are usually valued above their real worth, but solely for their pure, complete, and easy administration; and recourse to the legislative body is generally directed to the removal of some great abuse, or the decision of some incurable quarrel between classes and dynasties. there seems in the minds of the romans to have been some association between the enactment of a large body of statutes and the settlement of society after a great civil commotion. sylla signalised his reconstitution of the republic by the leges corneliæ; julius cæsar contemplated vast additions to the statute law; augustus caused to be passed the all-important group of leges juliæ; and among later emperors the most active promulgators of constitutions are princes who, like constantine, have the concerns of the world to readjust. the true period of roman statute law does not begin till the establishment of the empire. the enactments of the emperors, clothed at first in the pretence of popular sanction, but afterwards emanating undisguisedly from the imperial prerogative, extend in increasing massiveness from the consolidation of augustus's power to the publication of the code of justinian. it will be seen that even in the reign of the second emperor a considerable approximation is made to that condition of the law and that mode of administering it with which we are all familiar. a statute law and a limited board of expositors have risen into being; a permanent court of appeal and a collection of approved commentaries will very shortly be added; and thus we are brought close on the ideas of our own day. chapter iii law of nature and equity the theory of a set of legal principles, entitled by their intrinsic superiority to supersede the older law, very early obtained currency both in the roman state and in england. such a body of principles, existing in any system, has in the foregoing chapters been denominated equity, a term which, as will presently be seen, was one (though only one) of the designations by which this agent of legal change was known to the roman jurisconsults. the jurisprudence of the court of chancery, which bears the name of equity in england, could only be adequately discussed in a separate treatise. it is extremely complex in its texture and derives its materials from several heterogeneous sources. the early ecclesiastical chancellors contributed to it, from the canon law, many of the principles which lie deepest in its structure. the roman law, more fertile than the canon law in rules applicable to secular disputes, was not seldom resorted to by a later generation of chancery judges, amid whose recorded dicta we often find entire texts from the _corpus juris civilis_ imbedded, with their terms unaltered, though their origin is never acknowledged. still more recently, and particularly at the middle and during the latter half of the eighteenth century, the mixed systems of jurisprudence and morals constructed by the publicists of the low countries appear to have been much studied by english lawyers, and from the chancellorship of lord talbot to the commencement of lord eldon's chancellorship these works had considerable effect on the rulings of the court of chancery. the system, which obtained its ingredients from these various quarters, was greatly controlled in its growth by the necessity imposed on it of conforming itself to the analogies of the common law, but it has always answered the description of a body of comparatively novel legal principles claiming to override the older jurisprudence of the country on the strength of an intrinsic ethical superiority. the equity of rome was a much simpler structure, and its development from its first appearance can be much more easily traced. both its character and its history deserve attentive examination. it is the root of several conceptions which have exercised profound influence on human thought, and through human thought have seriously affected the destinies of mankind. the romans described their legal system as consisting of two ingredients. "all nations," says the institutional treatise published under the authority of the emperor justinian, "who are ruled by laws and customs, are governed partly by their own particular laws, and partly by those laws which are common to all mankind. the law which a people enacts is called the civil law of that people, but that which natural reason appoints for all mankind is called the law of nations, because all nations use it." the part of the law "which natural reason appoints for all mankind" was the element which the edict of the prætor was supposed to have worked into roman jurisprudence. elsewhere it is styled more simply jus naturale, or the law of nature; and its ordinances are said to be dictated by natural equity (_naturalis æquitas_) as well as by natural reason. i shall attempt to discover the origin of these famous phrases, law of nations, law of nature, equity, and to determine how the conceptions which they indicate are related to one another. the most superficial student of roman history must be struck by the extraordinary degree in which the fortunes of the republic were affected by the presence of foreigners, under different names, on her soil. the causes of this immigration are discernible enough at a later period, for we can readily understand why men of all races should flock to the mistress of the world; but the same phenomenon of a large population of foreigners and denizens meets us in the very earliest records of the roman state. no doubt, the instability of society in ancient italy, composed as it was in great measure of robber tribes, gave men considerable inducement to locate themselves in the territory of any community strong enough to protect itself and them from external attack, even though protection should be purchased at the cost of heavy taxation, political disfranchisement, and much social humiliation. it is probable, however, that this explanation is imperfect, and that it could only be completed by taking into account those active commercial relations which, though they are little reflected in the military traditions of the republic, rome appears certainly to have had with carthage and with the interior of italy in pre-historic times. whatever were the circumstances to which it was attributable, the foreign element in the commonwealth determined the whole course of its history, which, at all its stages, is little more than a narrative of conflicts between a stubborn nationality and an alien population. nothing like this has been seen in modern times; on the one hand, because modern european communities have seldom or never received any accession of foreign immigrants which was large enough to make itself felt by the bulk of the native citizens, and on the other, because modern states, being held together by allegiance to a king or political superior, absorb considerable bodies of immigrant settlers with a quickness unknown to the ancient world, where the original citizens of a commonwealth always believed themselves to be united by kinship in blood, and resented a claim to equality of privilege as a usurpation of their birthright. in the early roman republic the principle of the absolute exclusion of foreigners pervaded the civil law no less than the constitution. the alien or denizen could have no share in any institution supposed to be coeval with the state. he could not have the benefit of quiritarian law. he could not be a party to the _nexum_ which was at once the conveyance and the contract of the primitive romans. he could not sue by the sacramental action, a mode of litigation of which the origin mounts up to the very infancy of civilisation. still, neither the interest nor the security of rome permitted him to be quite outlawed. all ancient communities ran the risk of being overthrown by a very slight disturbance of equilibrium, and the mere instinct of self-preservation would force the romans to devise some method of adjusting the rights and duties of foreigners, who might otherwise--and this was a danger of real importance in the ancient world--have decided their controversies by armed strife. moreover, at no period of roman history was foreign trade entirely neglected. it was therefore probably half as a measure of police and half in furtherance of commerce that jurisdiction was first assumed in disputes to which the parties were either foreigners or a native and a foreigner. the assumption of such a jurisdiction brought with it the immediate necessity of discovering some principles on which the questions to be adjudicated upon could be settled, and the principles applied to this object by the roman lawyers were eminently characteristic of the time. they refused, as i have said before, to decide the new cases by pure roman civil law. they refused, no doubt because it seemed to involve some kind of degradation, to apply the law of the particular state from which the foreign litigant came. the expedient to which they resorted was that of selecting the rules of law common to rome and to the different italian communities in which the immigrants were born. in other words, they set themselves to form a system answering to the primitive and literal meaning of jus gentium, that is, law common to all nations. jus gentium was, in fact, the sum of the common ingredients in the customs of the old italian tribes, for they were _all the nations_ whom the romans had the means of observing, and who sent successive swarms of immigrants to roman soil. whenever a particular usage was seen to be practised by a large number of separate races in common it was set down as part of the law common to all nations, or jus gentium. thus, although the conveyance of property was certainly accompanied by very different forms in the different commonwealths surrounding rome, the actual transfer, tradition, or delivery of the article intended to be conveyed was a part of the ceremonial in all of them. it was, for instance, a part, though a subordinate part, in the mancipation or conveyance peculiar to rome. tradition, therefore, being in all probability the only common ingredient in the modes of conveyance which the jurisconsults had the means of observing, was set down as an institution juris gentium, or rule of the law common to all nations. a vast number of other observances were scrutinised with the same result. some common characteristic was discovered in all of them, which had a common object, and this characteristic was classed in the jus gentium. the jus gentium was accordingly a collection of rules and principles, determined by observation to be common to the institutions which prevailed among the various italian tribes. the circumstances of the origin of the jus gentium are probably a sufficient safeguard against the mistake of supposing that the roman lawyers had any special respect for it. it was the fruit in part of their disdain for all foreign law, and in part of their disinclination to give the foreigner the advantage of their own indigenous jus civile. it is true that we, at the present day, should probably take a very different view of the jus gentium, if we were performing the operation which was effected by the roman jurisconsults. we should attach some vague superiority or precedence to the element which we had thus discerned underlying and pervading so great a variety of usage. we should have a sort of respect for rules and principles so universal. perhaps we should speak of the common ingredient as being of the essence of the transaction into which it entered, and should stigmatise the remaining apparatus of ceremony, which varied in different communities, as adventitious and accidental. or it may be, we should infer that the races which we were comparing had once obeyed a great system of common institutions of which the jus gentium was the reproduction, and that the complicated usages of separate commonwealths were only corruptions and depravations of the simpler ordinances which had once regulated their primitive state. but the results to which modern ideas conduct the observer are, as nearly as possible, the reverse of those which were instinctively brought home to the primitive roman. what we respect or admire, he disliked or regarded with jealous dread. the parts of jurisprudence which he looked upon with affection were exactly those which a modern theorist leaves out of consideration as accidental and transitory; the solemn gestures of the mancipation; the nicely adjusted questions and answers of the verbal contract; the endless formalities of pleading and procedure. the jus gentium was merely a system forced on his attention by a political necessity. he loved it as little as he loved the foreigners from whose institutions it was derived and for whose benefit it was intended. a complete revolution in his ideas was required before it could challenge his respect, but so complete was it when it did occur, that the true reason why our modern estimate of the jus gentium differs from that which has just been described, is that both modern jurisprudence and modern philosophy have inherited the matured views of the later jurisconsults on this subject. there did come a time, when from an ignoble appendage of the jus civile, the jus gentium came to be considered a great though as yet imperfectly developed model to which all law ought as far as possible to conform. this crisis arrived when the greek theory of a law of nature was applied to the practical roman administration of the law common to all nations. the jus naturale, or law of nature, is simply the jus gentium or law of nations seen in the light of a peculiar theory. an unfortunate attempt to discriminate them was made by the jurisconsult ulpian, with the propensity to distinguish characteristic of a lawyer, but the language of gaius, a much higher authority, and the passage quoted before from the institutes leave no room for doubt, that the expressions were practically convertible. the difference between them was entirely historical, and no distinction in essence could ever be established between them. it is almost unnecessary to add that the confusion between jus gentium, or law common to all nations, and _international law_ is entirely modern. the classical expression for international law is jus feciale or the law of negotiation and diplomacy. it is, however, unquestionable that indistinct impressions as to the meaning of jus gentium had considerable share in producing the modern theory that the relations of independent states are governed by the law of nature. it becomes necessary to investigate the greek conceptions of nature and her law. the word [greek: physis], which was rendered in the latin _natura_ and our _nature_, denoted beyond all doubt originally the material universe, but it was the material universe contemplated under an aspect which--such is our intellectual distance from those times--it is not very easy to delineate in modern language. nature signified the physical world regarded as the result of some primordial element or law. the oldest greek philosophers had been accustomed to explain the fabric of creation as the manifestation of some single principle which they variously asserted to be movement, force, fire, moisture, or generation. in its simplest and most ancient sense, nature is precisely the physical universe looked upon in this way as the manifestation of a principle. afterwards, the later greek sects, returning to a path from which the greatest intellects of greece had meanwhile strayed, added the _moral_ to the _physical_ world in the conception of nature. they extended the term till it embraced not merely the visible creation, but the thoughts, observances, and aspirations of mankind. still, as before, it was not solely the moral phenomena of human society which they understood by _nature_, but these phenomena considered as resolvable into some general and simple laws. now, just as the oldest greek theorists supposed that the sports of chance had changed the material universe from its simple primitive form into its present heterogeneous condition, so their intellectual descendants imagined that but for untoward accident the human race would have conformed itself to simpler rules of conduct and a less tempestuous life. to live according to _nature_ came to be considered as the end for which man was created, and which the best men were bound to compass. to live according to _nature_ was to rise above the disorderly habits and gross indulgences of the vulgar to higher laws of action which nothing but self-denial and self-command would enable the aspirant to observe. it is notorious that this proposition--live according to nature--was the sum of the tenets of the famous stoic philosophy. now on the subjugation of greece that philosophy made instantaneous progress in roman society. it possessed natural fascinations for the powerful class who, in theory at least, adhered to the simple habits of the ancient italian race, and disdained to surrender themselves to the innovations of foreign fashions. such persons began immediately to affect the stoic precepts of life according to nature--an affectation all the more grateful, and, i may add, all the more noble, from its contrast with the unbounded profligacy which was being diffused through the imperial city by the pillage of the world and by the example of its most luxurious races. in the front of the disciples of the new greek school, we might be sure, even if we did not know it historically, that the roman lawyers figured. we have abundant proof that, there being substantially but two professions in the roman republic, the military men were generally identified with the party of movement, but the lawyers were universally at the head of the party of resistance. the alliance of the lawyers with the stoic philosophers lasted through many centuries. some of the earliest names in the series of renowned jurisconsults are associated with stoicism, and ultimately we have the golden age of roman jurisprudence fixed by general consent at the era of the antonine cæsars, the most famous disciples to whom that philosophy has given a rule of life. the long diffusion of these doctrines among the members of a particular profession was sure to affect the art which they practised and influenced. several positions which we find in the remains of the roman jurisconsults are scarcely intelligible, unless we use the stoic tenets as our key; but at the same time it is a serious, though a very common, error to measure the influence of stoicism on roman law by counting up the number of legal rules which can be confidently affiliated on stoical dogmas. it has often been observed that the strength of stoicism resided not in its canons of conduct, which were often repulsive or ridiculous, but in the great though vague principle which it inculcated of resistance to passion. just in the same way the influence on jurisprudence of the greek theories, which had their most distinct expression in stoicism, consisted not in the number of specific positions which they contributed to roman law, but in the single fundamental assumption which they lent to it. after nature had become a household word in the mouths of the romans, the belief gradually prevailed among the roman lawyers that the old jus gentium was in fact the lost code of nature, and that the prætor in framing an edictal jurisprudence on the principles of the jus gentium was gradually restoring a type from which law had only departed to deteriorate. the inference from this belief was immediate, that it was the prætor's duty to supersede the civil law as much as possible by the edict, to revive as far as might be the institutions by which nature had governed man in the primitive state. of course, there were many impediments to the amelioration of law by this agency. there may have been prejudices to overcome even in the legal profession itself, and roman habits were far too tenacious to give way at once to mere philosophical theory. the indirect methods by which the edict combated certain technical anomalies, show the caution which its authors were compelled to observe, and down to the very days of justinian there was some part of the old law which had obstinately resisted its influence. but, on the whole, the progress of the romans in legal improvement was astonishingly rapid as soon as stimulus was applied to it by the theory of natural law. the ideas of simplification and generalisation had always been associated with the conception of nature; simplicity, symmetry, and intelligibility came therefore to be regarded as the characteristics of a good legal system, and the taste for involved language, multiplied ceremonials, and useless difficulties disappeared altogether. the strong will, and unusual opportunities of justinian were needed to bring the roman law to its existing shape, but the ground plan of the system had been sketched long before the imperial reforms were effected. what was the exact point of contact between the old jus gentium and the law of nature? i think that they touch and blend through Æquitas, or equity in its original sense; and here we seem to come to the first appearance in jurisprudence of this famous term, equity. in examining an expression which has so remote an origin and so long a history as this, it is always safest to penetrate, if possible, to the simple metaphor or figure which at first shadowed forth the conception. it has generally been supposed that Æquitas is the equivalent of the greek [greek: isotês], _i.e._ the principle of equal or proportionate distribution. the equal division of numbers or physical magnitudes is doubtless closely entwined with our perceptions of justice; there are few associations which keep their ground in the mind so stubbornly or are dismissed from it with such difficulty by the deepest thinkers. yet in tracing the history of this association, it certainly does not seem to have suggested itself to very early thought, but is rather the offspring of a comparatively late philosophy. it is remarkable too that the "equality" of laws on which the greek democracies prided themselves--that equality which, in the beautiful drinking song of callistratus, harmodius and aristogiton are said to have given to athens--had little in common with the "equity" of the romans. the first was an equal administration of civil laws among the citizens, however limited the class of citizens might be; the last implied the applicability of a law, which was not civil law, to a class which did not necessarily consist of citizens. the first excluded a despot; the last included foreigners, and for some purposes slaves. on the whole, i should be disposed to look in another direction for the germ of the roman "equity." the latin word "æquus" carries with it more distinctly than the greek "[greek: isos]" the sense of _levelling_. now its levelling tendency was exactly the characteristic of the jus gentium, which would be most striking to a primitive roman. the pure quiritarian law recognised a multitude of arbitrary distinctions between classes of men and kinds of property; the jus gentium, generalised from a comparison of various customs, neglected the quiritarian divisions. the old roman law established, for example, a fundamental difference between "agnatic" and "cognatic" relationship, that is, between the family considered as based upon common subjection to patriarchal authority and the family considered (in conformity with modern ideas) as united through the mere fact of a common descent. this distinction disappears in the "law common to all nations," as also does the difference between the archaic forms of property, things "mancipi" and things "nec mancipi." the neglect of demarcations and boundaries seems to me, therefore, the feature of the jus gentium which was depicted in Æquitas. i imagine that the word was at first a mere description of that constant _levelling_ or removal of irregularities which went on wherever the prætorian system was applied to the cases of foreign litigants. probably no colour of ethical meaning belonged at first to the expression; nor is there any reason to believe that the process which it indicated was otherwise than extremely distasteful to the primitive roman mind. on the other hand, the feature of the jus gentium which was presented to the apprehension of a roman by the word equity, was exactly the first and most vividly realised characteristic of the hypothetical state of nature. nature implied symmetrical order, first in the physical world, and next in the moral, and the earliest notion of order doubtless involved straight lines, even surfaces, and measured distances. the same sort of picture or figure would be unconsciously before the mind's eye, whether it strove to form the outlines of the supposed natural state, or whether it took in at a glance the actual administration of the "law common to all nations"; and all we know of primitive thought would lead us to conclude that this ideal similarity would do much to encourage the belief in an identity of the two conceptions. but then, while the jus gentium had little or no antecedent credit at rome, the theory of a law of nature came in surrounded with all the prestige of philosophical authority, and invested with the charms of association with an elder and more blissful condition of the race. it is easy to understand how the difference in the point of view would affect the dignity of the term which at once described the operation of the old principles and the results of the new theory. even to modern ears it is not at all the same thing to describe a process as one of "levelling" and to call it the "correction of anomalies," though the metaphor is precisely the same. nor do i doubt that, when once Æquitas was understood to convey an allusion to the greek theory, associations which grew out of the greek notion of [greek: isotês] began to cluster round it. the language of cicero renders it more than likely that this was so, and it was the first stage of a transmutation of the conception of equity, which almost every ethical system which has appeared since those days has more or less helped to carry on. something must be said of the formal instrumentality by which the principles and distinctions associated, first with the law common to all nations, and afterwards with the law of nature, were gradually incorporated with the roman law. at the crisis of primitive roman history which is marked by the expulsion of the tarquins, a change occurred which has its parallel in the early annals of many ancient states, but which had little in common with those passages of political affairs which we now term revolutions. it may best be described by saying that the monarchy was put into commission. the powers heretofore accumulated in the hands of a single person were parcelled out among a number of elective functionaries, the very name of the kingly office being retained and imposed on a personage known subsequently as the rex sacrorum or rex sacrificulus. as part of the change, the settled duties of the supreme judicial office devolved on the prætor, at the time the first functionary in the commonwealth, and together with these duties was transferred the undefined supremacy over law and legislation which always attached to ancient sovereigns and which is not obscurely related to the patriarchal and heroic authority they had once enjoyed. the circumstances of rome gave great importance to the more indefinite portion of the functions thus as transferred, as with the establishment of the republic began that series of recurrent trials which overtook the state, in the difficulty of dealing with a multitude of persons who, not coming within the technical description of indigenous romans, were nevertheless permanently located within roman jurisdiction. controversies between such persons, or between such persons and native-born citizens, would have remained without the pale of the remedies provided by roman law, if the prætor had not undertaken to decide them, and he must soon have addressed himself to the more critical disputes which in the extension of commerce arose between roman subjects and avowed foreigners. the great increase of such cases in the roman courts about the period of the first punic war is marked by the appointment of a special prætor, known subsequently as the prætor peregrinus, who gave them his undivided attention. meantime, one precaution of the roman people against the revival of oppression, had consisted in obliging every magistrate whose duties had any tendency to expand their sphere, to publish, on commencing his year of office, an edict or proclamation, in which he declared the manner in which he intended to administer his department. the prætor fell under the rule with other magistrates; but as it was necessarily impossible to construct each year a separate system of principles, he seems to have regularly republished his predecessor's edict with such additions and changes as the exigency of the moment or his own views of the law compelled him to introduce. the prætor's proclamation, thus lengthened by a new portion every year, obtained the name of the edictum perpetuum, that is, the _continuous_ or _unbroken_ edict. the immense length to which it extended, together perhaps with some distaste for its necessarily disorderly texture, caused the practice of increasing it to be stopped in the year of salvius julianus, who occupied the magistracy in the reign of the emperor hadrian. the edict of that prætor embraced therefore the whole body of equity jurisprudence, which it probably disposed in new and symmetrical order, and the perpetual edict is therefore often cited in roman law merely as the edict of julianus. perhaps the first inquiry which occurs to an englishman who considers the peculiar mechanism of the edict is, what were the limitations by which these extensive powers of the prætor were restrained? how was authority so little definite reconciled with a settled condition of society and of law? the answer can only be supplied by careful observation of the conditions under which our own english law is administered. the prætor, it should be recollected, was a jurisconsult himself, or a person entirely in the hands of advisers who were jurisconsults, and it is probable that every roman lawyer waited impatiently for the time when he should fill or control the great judicial magistracy. in the interval, his tastes, feelings, prejudices, and degree of enlightenment were inevitably those of his own order, and the qualifications which he ultimately brought to office were those which he had acquired in the practice and study of his profession. an english chancellor goes through precisely the same training, and carries to the woolsack the same qualifications. it is certain when he assumes office that he will have, to some extent, modified the law before he leaves it; but until he has quitted his seat, and the series of his decisions in the law reports has been completed, we cannot discover how far he has elucidated or added to the principles which his predecessors bequeathed to him. the influence of the prætor on roman jurisprudence differed only in respect of the period at which its amount was ascertained. as was before stated, he was in office but for a year, and his decisions rendered during his year, though of course irreversible as regarded the litigants, were of no ulterior value. the most natural moment for declaring the changes he proposed to effect occurred therefore at his entrance on the prætorship, and hence, when commencing his duties, he did openly and avowedly that which in the end his english representative does insensibly and sometimes unconsciously. the checks on this apparent liberty are precisely those imposed on an english judge. theoretically there seems to be hardly any limit to the powers of either of them, but practically the roman prætor, no less than the english chancellor, was kept within the narrowest bounds by the prepossessions imbibed from early training and by the strong restraints of professional opinion, restraints of which the stringency can only be appreciated by those who have personally experienced them. it may be added that the lines within which movement is permitted, and beyond which there is to be no travelling, were chalked with as much distinctness in the one case as in the other. in england the judge follows the analogies of reported decisions on insulated groups of facts. at rome, as the intervention of the prætor was at first dictated by simple concern for the safety of the state, it is likely that in the earliest times it was proportioned to the difficulty which it attempted to get rid of. afterwards, when the taste for principle had been diffused by the responses, he no doubt used the edict as the means of giving a wider application to those fundamental principles, which he and the other practising jurisconsults, his contemporaries, believed themselves to have detected underlying the law. latterly he acted wholly under the influence of greek philosophical theories, which at once tempted him to advance and confined him to a particular course of progress. the nature of the measures attributed to salvius julianus has been much disputed. whatever they were, their effects on the edict are sufficiently plain. it ceased to be extended by annual additions, and henceforward the equity jurisprudence of rome was developed by the labours of a succession of great jurisconsults who fill with their writings the interval between the reign of hadrian and the reign of alexander severus. a fragment of the wonderful system which they built up survives in the pandects of justinian, and supplies evidence that their works took the form of treatises on all parts of roman law, but chiefly that of commentaries on the edict. indeed, whatever be the immediate subject of a jurisconsult of this epoch, he may always be called an expositor of equity. the principles of the edict had, before the epoch of its cessation, made their way into every part of roman jurisprudence. the equity of rome, it should be understood, even when most distinct from the civil law, was always administered by the same tribunals. the prætor was the chief equity judge as well as the great common law magistrate, and as soon as the edict had evolved an equitable rule the prætor's court began to apply it in place of or by the side of the old rule of the civil law, which was thus directly or indirectly repealed without any express enactment of the legislature. the result, of course, fell considerably short of a complete fusion of law and equity, which was not carried out till the reforms of justinian. the technical severance of the two elements of jurisprudence entailed some confusion and some inconvenience, and there were certain of the stubborner doctrines of the civil law with which neither the authors nor the expositors of the edict had ventured to interfere. but at the same time there was no corner of the field of jurisprudence which was not more or less swept over by the influence of equity. it supplied the jurist with all his materials for generalisation, with all his methods of interpretation, with his elucidations of first principles, and with that great mass of limiting rules which are rarely interfered with by the legislator, but which seriously control the application of every legislative act. the period of jurists ends with alexander severus. from hadrian to that emperor the improvement of law was carried on, as it is at the present moment in most continental countries, partly by approved commentaries and partly by direct legislation. but in the reign of alexander severus the power of growth in roman equity seems to be exhausted, and the succession of jurisconsults comes to a close. the remaining history of the roman law is the history of the imperial constitutions, and, at the last, of attempts to codify what had now become the unwieldy body of roman jurisprudence. we have the latest and most celebrated experiment of this kind in the _corpus juris_ of justinian. it would be wearisome to enter on a detailed comparison or contrast of english and roman equity, but it may be worth while to mention two features which they have in common. the first may be stated as follows. each of them tended, and all such systems tend, to exactly the same state in which the old common law was when equity first interfered with it. a time always comes at which the moral principles originally adopted have been carried out to all their legitimate consequences, and then the system founded on them becomes as rigid, as unexpansive, and as liable to fall behind moral progress as the sternest code of rules avowedly legal. such an epoch was reached at rome in the reign of alexander severus; after which, though the whole roman world was undergoing a moral revolution, the equity of rome ceased to expand. the same point of legal history was attained in england under the chancellorship of lord eldon, the first of our equity judges who, instead of enlarging the jurisprudence of his court by indirect legislation, devoted himself through life to explaining and harmonising it. if the philosophy of legal history were better understood in england, lord eldon's services would be less exaggerated on the one hand and better appreciated on the other than they appear to be among contemporary lawyers. other misapprehensions too, which bear some practical fruit, would perhaps be avoided. it is easily seen by english lawyers that english equity is a system founded on moral rules; but it is forgotten that these rules are the morality of past centuries--not of the present--that they have received nearly as much application as they are capable of, and that though of course they do not differ largely from the ethical creed of our own day, they are not necessarily on a level with it. the imperfect theories of the subject which are commonly adopted have generated errors of opposite sorts. many writers of treatises on equity, struck with the completeness of the system in its present state, commit themselves expressly or implicitly to the paradoxical assertion that the founders of the chancery jurisprudence contemplated its present fixity of form when they were settling its first bases. others, again, complain--and this is a grievance frequently observed upon in forensic arguments--that the moral rules enforced by the court of chancery fall short of the ethical standard of the present day. they would have each lord chancellor perform precisely the same office for the jurisprudence which he finds ready to his hand, which was performed for the old common law by the fathers of english equity. but this is to invert the order of the agencies by which the improvement of the law is carried on. equity has its place and its time; but i have pointed out that another instrumentality is ready to succeed it when its energies are spent. another remarkable characteristic of both english and roman equity is the falsehood of the assumptions upon which the claim of the equitable to superiority over the legal rule is originally defended. nothing is more distasteful to men, either as individuals or as masses, than the admission of their moral progress as a substantive reality. this unwillingness shows itself, as regards individuals, in the exaggerated respect which is ordinarily paid to the doubtful virtue of consistency. the movement of the collective opinion of a whole society is too palpable to be ignored, and is generally too visible for the better to be decried; but there is the greatest disinclination to accept it as a primary phenomenon, and it is commonly explained as the recovery of a lost perfection--the gradual return to a state from which the race has lapsed. this tendency to look backward instead of forward for the goal of moral progress produced anciently, as we have seen, on roman jurisprudence effects the most serious and permanent. the roman jurisconsults, in order to account for the improvement of their jurisprudence by the prætor, borrowed from greece the doctrine of a natural state of man--a natural society--anterior to the organisation of commonwealths governed by positive laws. in england, on the other hand, a range of ideas especially congenial to englishmen of that day, explained the claim of equity to override the common law by supposing a general right to superintend the administration of justice which was assumed to be vested in the king as a natural result of his paternal authority. the same view appears in a different and a quainter form in the old doctrine that equity flowed from the king's conscience--the improvement which had in fact taken place in the moral standard of the community being thus referred to an inherent elevation in the moral sense of the sovereign. the growth of the english constitution rendered such a theory unpalatable after a time; but, as the jurisdiction of the chancery was then firmly established, it was not worth while to devise any formal substitute for it. the theories found in modern manuals of equity are very various, but all are alike in their untenability. most of them are modifications of the roman doctrine of a natural law, which is indeed adopted in tenour by those writers who begin a discussion of the jurisdiction of the court of chancery by laying down a distinction between natural justice and civil. chapter iv the modern history of the law of nature it will be inferred from what has been said that the theory which transformed the roman jurisprudence had no claim to philosophical precision. it involved, in fact, one of those "mixed modes of thought" which are now acknowledged to have characterised all but the highest minds during the infancy of speculation, and which are far from undiscoverable even in the mental efforts of our own day. the law of nature confused the past and the present. logically, it implied a state of nature which had once been regulated by natural law; yet the jurisconsults do not speak clearly or confidently of the existence of such a state, which indeed is little noticed by the ancients except where it finds a poetical expression in the fancy of a golden age. natural law, for all practical purposes, was something belonging to the present, something entwined with existing institutions, something which could be distinguished from them by a competent observer. the test which separated the ordinances of nature from the gross ingredients with which they were mingled was a sense of simplicity and harmony; yet it was not on account of their simplicity and harmony that these finer elements were primarily respected, but on the score of their descent from the aboriginal reign of nature. this confusion has not been successfully explained away by the modern disciples of the jurisconsults, and in truth modern speculations on the law of nature betray much more indistinctness of perception and are vitiated by much more hopeless ambiguity of language than the roman lawyers can be justly charged with. there are some writers on the subject who attempt to evade the fundamental difficulty by contending that the code of nature exists in the future and is the goal to which all civil laws are moving, but this is to reverse the assumptions on which the old theory rested, or rather perhaps to mix together two inconsistent theories. the tendency to look not to the past but to the future for types of perfection was brought into the world by christianity. ancient literature gives few or no hints of a belief that the progress of society is necessarily from worse to better. but the importance of this theory to mankind has been very much greater than its philosophical deficiencies would lead us to expect. indeed, it is not easy to say what turn the history of thought, and therefore, of the human race, would have taken, if the belief in a law natural had not become universal in the ancient world. there are two special dangers to which law, and society which is held together by law, appear to be liable in their infancy. one of them is that law may be too rapidly developed. this occurred with the codes of the more progressive greek communities, which disembarrassed themselves with astonishing facility from cumbrous forms of procedure and needless terms of art, and soon ceased to attach any superstitious value to rigid rules and prescriptions. it was not for the ultimate advantage of mankind that they did so, though the immediate benefit conferred on their citizens may have been considerable. one of the rarest qualities of national character is the capacity for applying and working out the law, as such, at the cost of constant miscarriages of abstract justice, without at the same time losing the hope or the wish that law may be conformed to a higher ideal. the greek intellect, with all its nobility and elasticity, was quite unable to confine itself within the strait waistcoat of a legal formula; and, if we may judge them by the popular courts of athens, of whose working we possess accurate knowledge, the greek tribunals exhibited the strongest tendency to confound law and fact. the remains of the orators and the forensic commonplaces preserved by aristotle in his treatise on rhetoric, show that questions of pure law were constantly argued on every consideration which could possibly influence the mind of the judges. no durable system of jurisprudence could be produced in this way. a community which never hesitated to relax rules of written law whenever they stood in the way of an ideally perfect decision on the facts of particular cases, would only, if it bequeathed any body of judicial principles to posterity, bequeath one consisting of the ideas of right and wrong which happened to be prevalent at the time. such a jurisprudence would contain no framework to which the more advanced conceptions of subsequent ages could be fitted. it would amount at best to a philosophy marked with the imperfections of the civilisation under which it grew up. few national societies have had their jurisprudence menaced by this peculiar danger of precocious maturity and untimely disintegration. it is certainly doubtful whether the romans were ever seriously threatened by it, but at any rate they had adequate protection in their theory of natural law. for the natural law of the jurisconsults was distinctly conceived by them as a system which ought gradually to absorb civil laws, without superseding them so long as they remained unrepealed. there was no such impression of its sanctity abroad, that an appeal to it would be likely to overpower the mind of a judge who was charged with the superintendence of a particular litigation. the value and serviceableness of the conception arose from its keeping before the mental vision a type of perfect law, and from its inspiring the hope of an indefinite approximation to it, at the same time that it never tempted the practitioner or the citizen to deny the obligation of existing laws which had not yet been adjusted to the theory. it is important too to observe that this model system, unlike many of those which have mocked men's hopes in later days, was not entirely the product of imagination. it was never thought of as founded on quite untested principles. the notion was that it underlay existing law and must be looked for through it. its functions were in short remedial, not revolutionary or anarchical. and this, unfortunately, is the exact point at which the modern view of a law of nature has often ceased to resemble the ancient. the other liability to which the infancy of society is exposed has prevented or arrested the progress of far the greater part of mankind. the rigidity of primitive law, arising chiefly from its early association and identification with religion, has chained down the mass of the human race to those views of life and conduct which they entertained at the time when their usages were first consolidated into a systematic form. there were one or two races exempted by a marvellous fate from this calamity, and grafts from these stocks have fertilised a few modern societies, but it is still true that, over the larger part of the world, the perfection of law has always been considered as consisting in adherence to the ground plan supposed to have been marked out by the original legislator. if intellect has in such cases been exercised on jurisprudence, it has uniformly prided itself on the subtle perversity of the conclusions it could build on ancient texts, without discoverable departure from their literal tenour. i know no reason why the law of the romans should be superior to the laws of the hindoos, unless the theory of natural law had given it a type of excellence different from the usual one. in this one exceptional instance, simplicity and symmetry were kept before the eyes of a society whose influence on mankind was destined to be prodigious from other causes, as the characteristics of an ideal and absolutely perfect law. it is impossible to overrate the importance to a nation or profession of having a distinct object to aim at in the pursuit of improvement. the secret of bentham's immense influence in england during the past thirty years is his success in placing such an object before the country. he gave us a clear rule of reform. english lawyers of the last century were probably too acute to be blinded by the paradoxical commonplace that english law was the perfection of human reason, but they acted as if they believed it for want of any other principle to proceed upon. bentham made the good of the community take precedence of every other object, and thus gave escape to a current which had long been trying to find its way outwards. it is not an altogether fanciful comparison if we call the assumptions we have been describing the ancient counterpart of benthamism. the roman theory guided men's efforts in the same direction as the theory put into shape by the englishman; its practical results were not widely different from those which would have been attained by a sect of law-reformers who maintained a steady pursuit of the general good of the community. it would be a mistake, however, to suppose it a conscious anticipation of bentham's principles. the happiness of mankind is, no doubt, sometimes assigned, both in the popular and in the legal literature of the romans, as the proper object of remedial legislation, but it is very remarkable how few and faint are the testimonies to this principle compared with the tributes which are constantly offered to the overshadowing claims of the law of nature. it was not to anything resembling philanthropy, but to their sense of simplicity and harmony--of what they significantly termed "elegance"--that the roman jurisconsults freely surrendered themselves. the coincidence of their labours with those which a more precise philosophy would have counselled has been part of the good fortune of mankind. turning to the modern history of the law of nature, we find it easier to convince ourselves of the vastness of its influence than to pronounce confidently whether that influence has been exerted for good or for evil. the doctrines and institutions which may be attributed to it are the material of some of the most violent controversies debated in our time, as will be seen when it is stated that the theory of natural law is the source of almost all the special ideas as to law, politics, and society which france during the last hundred years has been the instrument of diffusing over the western world. the part played by jurists in french history, and the sphere of jural conceptions in french thought, have always been remarkably large. it was not indeed in france, but in italy, that the juridical science of modern europe took its rise, but of the schools founded by emissaries of the italian universities in all parts of the continent, and attempted (though vainly) to be set up in our island, that established in france produced the greatest effect on the fortunes of the country. the lawyers of france immediately formed a strict alliance with the kings of the house of capet, and it was as much through their assertions of royal prerogative, and through their interpretations of the rules of feudal succession, as by the power of the sword, that the french monarchy at last grew together out of the agglomeration of provinces and dependencies. the enormous advantage which their understanding with the lawyers conferred on the french kings in the prosecution of their struggle with the great feudatories, the aristocracy, and the church, can only be appreciated if we take into account the ideas which prevailed in europe far down into the middle ages. there was, in the first place, a great enthusiasm for generalisation and a curious admiration for all general propositions, and consequently, in the field of law, an involuntary reverence for every general formula which seemed to embrace and sum up a number of the insulated rules which were practised as usages in various localities. such general formulas it was, of course, not difficult for practitioners familiar with the corpus juris or the glosses to supply in almost any quantity. there was, however, another cause which added yet more considerably to the lawyers' power. at the period of which we are speaking, there was universal vagueness of ideas as to the degree and nature of the authority residing in written texts of law. for the most part, the peremptory preface, _ita scriptum est_, seems to have been sufficient to silence all objections. where a mind of our own day would jealously scrutinise the formula which had been quoted, would inquire its source, and would (if necessary) deny that the body of law to which it belonged had any authority to supersede local customs, the elder jurist would not probably have ventured to do more than question the applicability of the rule, or at best cite some counter proposition from the pandects or the canon law. it is extremely necessary to bear in mind the uncertainty of men's notions on this most important side of juridical controversies, not only because it helps to explain the weight which the lawyers threw into the monarchical scale, but on account of the light which it sheds on several curious historical problems. the motives of the author of the forged decretals and his extraordinary success are rendered more intelligible by it. and, to take a phenomenon of smaller interest, it assists us, though only partially, to understand the plagiarisms of bracton. that an english writer of the time of henry iii. should have been able to put off on his countrymen as a compendium of pure english law a treatise of which the entire form and a third of the contents were directly borrowed from the corpus juris, and that he should have ventured on this experiment in a country where the systematic study of the roman law was formally proscribed, will always be among the most hopeless enigmas in the history of jurisprudence; but still it is something to lessen our surprise when we comprehend the state of opinion at the period as to the obligatory force of written texts, apart from all consideration of the source whence they were derived. when the kings of france had brought their long struggle for supremacy to a successful close, an epoch which may be placed roughly at the accession of the branch of valois-angoulême to the throne, the situation of the french jurists was peculiar and continued to be so down to the outbreak of the revolution. on the one hand, they formed the best instructed and nearly the most powerful class in the nation. they had made good their footing as a privileged order by the side of the feudal aristocracy, and they had assured their influence by an organisation which distributed their profession over france in great chartered corporations possessing large defined powers and still larger indefinite claims. in all the qualities of the advocate, the judge, and the legislator, they far excelled their compeers throughout europe. their juridical tact, their ease of expression, their fine sense of analogy and harmony, and (if they may be judged by the highest names among them) their passionate devotion to their conceptions of justice, were as remarkable as the singular variety of talent which they included, a variety covering the whole ground between the opposite poles of cujas and montesquieu, of d'aguesseau and dumoulin. but, on the other hand, the system of laws which they had to administer stood in striking contrast with the habits of mind which they had cultivated. the france which had been in great part constituted by their efforts was smitten with the curse of an anomalous and dissonant jurisprudence beyond every other country in europe. one great division ran through the country and separated it into _pays du droit ecrit_ and _pays du droit coutumier_, the first acknowledging the written roman law as the basis of their jurisprudence, the last admitting it only so far as it supplied general forms of expression, and courses of juridical reasoning which were reconcileable with the local usages. the sections thus formed were again variously subdivided. in the _pays du droit coutumier_ province differed from province, county from county, municipality from municipality, in the nature of its customs. in the _pays du droit ecrit_ the stratum of feudal rules which overlay the roman law was of the most miscellaneous composition. no such confusion as this ever existed in england. in germany it did exist, but was too much in harmony with the deep political and religious divisions of the country to be lamented or even felt. it was the special peculiarity of france that an extraordinary diversity of laws continued without sensible alteration while the central authority of the monarchy was constantly strengthening itself, while rapid approaches were being made to complete administrative unity, and while a fervid national spirit had been developed among the people. the contrast was one which fructified in many serious results, and among them we must rank the effect which it produced on the minds of the french lawyers. their speculative opinions and their intellectual bias were in the strongest opposition to their interests and professional habits. with the keenest sense and the fullest recognition of those perfections of jurisprudence which consist in simplicity and uniformity, they believed, or seemed to believe, that the vices which actually infested french law were ineradicable; and in practice they often resisted the reformation of abuses with an obstinacy which was not shown by many among their less enlightened countrymen. but there was a way to reconcile these contradictions. they became passionate enthusiasts for natural law. the law of nature overleapt all provincial and municipal boundaries; it disregarded all distinctions between noble and burgess, between burgess and peasant; it gave the most exalted place to lucidity, simplicity and system; but it committed its devotees to no specific improvement, and did not directly threaten any venerable or lucrative technicality. natural law may be said to have become the common law of france, or, at all events, the admission of its dignity and claims was the one tenet which all french practitioners alike subscribed to. the language of the præ-revolutionary jurists in its eulogy is singularly unqualified, and it is remarkable that the writers on the customs, who often made it their duty to speak disparagingly of the pure roman law, speak even more fervidly of nature and her rules than the civilians who professed an exclusive respect for the digest and the code. dumoulin, the highest of all authorities on old french customary law, has some extravagant passages on the law of nature; and his panegyrics have a peculiar rhetorical turn which indicated a considerable departure from the caution of the roman jurisconsults. the hypothesis of a natural law had become not so much a theory guiding practice as an article of speculative faith, and accordingly we shall find that, in the transformation which it more recently underwent, its weakest parts rose to the level of its strongest in the esteem of its supporters. the eighteenth century was half over when the most critical period in the history of natural law was reached. had the discussion of the theory and of its consequences continued to be exclusively the employment of the legal profession, there would possibly have been an abatement of the respect which it commanded; for by this time the _esprit des lois_ had appeared. bearing in some exaggerations the marks of the excessive violence with which its author's mind had recoiled from assumptions usually suffered to pass without scrutiny, yet showing in some ambiguities the traces of a desire to compromise with existing prejudice, the book of montesquieu, with all its defects, still proceeded on that historical method before which the law of nature has never maintained its footing for an instant. its influence on thought ought to have been as great as its general popularity; but, in fact, it was never allowed time to put it forth, for the counter-hypothesis which it seemed destined to destroy passed suddenly from the forum to the street, and became the key-note of controversies far more exciting than are ever agitated in the courts or the schools. the person who launched it on its new career was that remarkable man who, without learning, with few virtues, and with no strength of character, has nevertheless stamped himself ineffaceably on history by the force of a vivid imagination, and by the help of a genuine and burning love for his fellow-men, for which much will always have to be forgiven him. we have never seen in our own generation--indeed the world has not seen more than once or twice in all the course of history--a literature which has exercised such prodigious influence over the minds of men, over every cast and shade of intellect, as that which emanated from rousseau between and . it was the first attempt to re-erect the edifice of human belief after the purely iconoclastic efforts commenced by bayle, and in part by our own locke, and consummated by voltaire; and besides the superiority which every constructive effort will always enjoy over one that is merely destructive, it possessed the immense advantage of appearing amid an all but universal scepticism as to the soundness of all foregone knowledge in matters speculative. now, in all the speculations of rousseau, the central figure, whether arrayed in an english dress as the signatory of a social compact, or simply stripped naked of all historical qualities, is uniformly man, in a supposed state of nature. every law or institution which would misbeseem this imaginary being under these ideal circumstances is to be condemned as having lapsed from an original perfection; every transformation of society which would give it a closer resemblance to the world over which the creature of nature reigned, is admirable and worthy to be effected at any apparent cost. the theory is still that of the roman lawyers, for in the phantasmagoria with which the natural condition is peopled, every feature and characteristic eludes the mind except the simplicity and harmony which possessed such charms for the jurisconsult; but the theory is, as it were, turned upside down. it is not the law of nature, but the state of nature, which is now the primary subject of contemplation. the roman had conceived that by careful observation of existing institutions parts of them could be singled out which either exhibited already, or could by judicious purification be made to exhibit, the vestiges of that reign of nature whose reality he faintly affirmed. rousseau's belief was that a perfect social order could be evolved from the unassisted consideration of the natural state, a social order wholly irrespective of the actual condition of the world and wholly unlike it. the great difference between the views is that one bitterly and broadly condemns the present for its unlikeness to the ideal past; while the other, assuming the present to be as necessary as the past, does not affect to disregard or censure it. it is not worth our while to analyse with any particularity that philosophy of politics, art, education, ethics, and social relation which was constructed on the basis of a state of nature. it still possesses singular fascination for the looser thinkers of every country, and is no doubt the parent, more or less remote, of almost all the prepossessions which impede the employment of the historical method of inquiry, but its discredit with the higher minds of our day is deep enough to astonish those who are familiar with the extraordinary vitality of speculative error. perhaps the question most frequently asked nowadays is not what is the value of these opinions, but what were the causes which gave them such overshadowing prominence a hundred years ago. the answer is, i conceive, a simple one. the study which in the last century would best have corrected the misapprehensions into which an exclusive attention to legal antiquities is apt to betray was the study of religion. but greek religion, as then understood, was dissipated in imaginative myths. the oriental religions, if noticed at all, appeared to be lost in vain cosmogonies. there was but one body of primitive records which was worth studying--the early history of the jews. but resort to this was prevented by the prejudices of the time. one of the few characteristics which the school of rousseau had in common with the school of voltaire was an utter disdain of all religious antiquities; and, more than all, of those of the hebrew race. it is well known that it was a point of honour with the reasoners of that day to assume not merely that the institutions called after moses were not divinely dictated, nor even that they were codified at a later date than that attributed to them, but that they and the entire pentateuch were a gratuitous forgery, executed after the return from the captivity. debarred, therefore, from one chief security against speculative delusion, the philosophers of france, in their eagerness to escape from what they deemed a superstition of the priests, flung themselves headlong into a superstition of the lawyers. but though the philosophy founded on the hypothesis of a state of nature has fallen low in general esteem, in so far as it is looked upon under its coarser and more palpable aspect, it does not follow that in its subtler disguises it has lost plausibility, popularity, or power. i believe, as i have said, that it is still the great antagonist of the historical method; and whenever (religious objections apart) any mind is seen to resist or contemn that mode of investigation, it will generally be found under the influence of a prejudice or vicious bias traceable to a conscious or unconscious reliance on a non-historic, natural, condition of society or the individual. it is chiefly, however, by allying themselves with political and social tendencies that the doctrines of nature and her law have preserved their energy. some of these tendencies they have stimulated, others they have actually created, to a great number they have given expression and form. they visibly enter largely into the ideas which constantly radiate from france over the civilised world, and thus become part of the general body of thought by which its civilisation is modified. the value of the influence which they thus exercise over the fortunes of the race is of course one of the points which our age debates most warmly, and it is beside the purpose of this treatise to discuss it. looking back, however, to the period at which the theory of the state of nature acquired the maximum of political importance, there are few who will deny that it helped most powerfully to bring about the grosser disappointments of which the first french revolution was fertile. it gave birth, or intense stimulus, to the vices of mental habit all but universal at the time, disdain of positive law, impatience of experience, and the preference of _à priori_ to all other reasoning. in proportion too as this philosophy fixes its grasp on minds which have thought less than others and fortified themselves with smaller observation, its tendency is to become distinctly anarchical. it is surprising to note how many of the _sophismes anarchiques_ which dumont published for bentham, and which embody bentham's exposure of errors distinctively french, are derived from the roman hypothesis in its french transformation, and are unintelligible unless referred to it. on this point too it is a curious exercise to consult the _moniteur_ during the principal eras of the revolution. the appeals to the law and state of nature become thicker as the times grow darker. they are comparatively rare in the constituent assembly; they are much more frequent in the legislative; in the convention, amid the din of debate on conspiracy and war, they are perpetual. there is a single example which very strikingly illustrates the effects of the theory of natural law on modern society, and indicates how very far are those effects from being exhausted. there cannot, i conceive, be any question that to the assumption of a law natural we owe the doctrine of the fundamental equality of human beings. that "all men are equal" is one of a large number of legal propositions which, in progress of time, have become political. the roman jurisconsults of the antonine era lay down that "omnes homines naturâ æquales sunt," but in their eyes this is a strictly juridical axiom. they intend to affirm that, under the hypothetical law of nature, and in so far as positive law approximates to it, the arbitrary distinctions which the roman civil law maintained between classes of persons cease to have a legal existence. the rule was one of considerable importance to the roman practitioner, who required to be reminded that, wherever roman jurisprudence was assumed to conform itself exactly to the code of nature, there was no difference in the contemplation of the roman tribunals between citizen and foreigner, between freeman and slave, between agnate and cognate. the jurisconsults who thus expressed themselves most certainly never intended to censure the social arrangements under which civil law fell somewhat short of its speculative type; nor did they apparently believe that the world would ever see human society completely assimilated to the economy of nature. but when the doctrine of human equality makes its appearance in a modern dress it has evidently clothed itself with a new shade of meaning. where the roman jurisconsult had written "æquales sunt," meaning exactly what he said, the modern civilian wrote "all men are equal" in the sense of "all men ought to be equal." the peculiar roman idea that natural law coexisted with civil law and gradually absorbed it, had evidently been lost sight of, or had become unintelligible, and the words which had at most conveyed a theory concerning the origin, composition, and development of human institutions, were beginning to express the sense of a great standing wrong suffered by mankind. as early as the beginning of the fourteenth century, the current language concerning the birth-state of men, though visibly intended to be identical with that of ulpian and his contemporaries, has assumed an altogether different form and meaning. the preamble to the celebrated ordinance of king louis hutin enfranchising the serfs of the royal domains would have sounded strangely to roman ears. "whereas, according to natural law, everybody ought to be born free; and by some usages and customs which, from long antiquity, have been introduced and kept until now in our realm, and peradventure by reason of the misdeeds of their predecessors, many persons of our common people have fallen into servitude, therefore, we, etc." this is the enunciation not of a legal rule but of a political dogma; and from this time the equality of men is spoken of by the french lawyers just as if it were a political truth which happened to have been preserved among the archives of their science. like all other deductions from the hypothesis of a law natural, and like the belief itself in a law of nature, it was languidly assented to and suffered to have little influence on opinion and practice until it passed out of the possession of the lawyers into that of the literary men of the eighteenth century and of the public which sat at their feet. with them it became the most distinct tenet of their creed, and was even regarded as a summary of all the others. it is probable, however, that the power which it ultimately acquired over the events of was not entirely owing to its popularity in france, for in the middle of the century it passed over to america. the american lawyers of the time, and particularly those of virginia, appear to have possessed a stock of knowledge which differed chiefly from that of their english contemporaries in including much which could only have been derived from the legal literature of continental europe. a very few glances at the writings of jefferson will show how strongly his mind was affected by the semi-juridical, semi-popular opinions which were fashionable in france, and we cannot doubt that it was sympathy with the peculiar ideas of the french jurists which led him and the other colonial lawyers who guided the course of events in america to join the specially french assumption that "all men are born equal" with the assumption, more familiar to englishmen, that "all men are born free," in the very first lines of their declaration of independence. the passage was one of great importance to the history of the doctrine before us. the american lawyers, in thus prominently and emphatically affirming the fundamental equality of human beings, gave an impulse to political movements in their own country, and in a less degree in great britain, which is far from having yet spent itself; but besides this they returned the dogma they had adopted to its home in france, endowed with vastly greater energy and enjoying much greater claims on general reception and respect. even the more cautious politicians of the first constituent assembly repeated ulpian's proposition as if it at once commended itself to the instincts and intuitions of mankind; and of all the "principles of " it is the one which has been least strenuously assailed, which has most thoroughly leavened modern opinion, and which promises to modify most deeply the constitution of societies and the politics of states. the grandest function of the law of nature was discharged in giving birth to modern international law and to the modern law of war, but this part of its effects must here be dismissed with consideration very unequal to its importance. among the postulates which form the foundation of international law, or of so much of it as retains the figure which it received from its original architects, there are two or three of pre-eminent importance. the first of all is expressed in the position that there is a determinable law of nature. grotius and his successors took the assumption directly from the romans, but they differed widely from the roman jurisconsults and from each other in their ideas as to the mode of determination. the ambition of almost every publicist who has flourished since the revival of letters has been to provide new and more manageable definitions of nature and of her law, and it is indisputable that the conception in passing through the long series of writers on public law has gathered round it a large accretion, consisting of fragments of ideas derived from nearly every theory of ethics which has in its turn taken possession of the schools. yet it is a remarkable proof of the essentially historical character of the conception that, after all the efforts which have been made to evolve the code of nature from the necessary characteristics of the natural state, so much of the result is just what it would have been if men had been satisfied to adopt the dicta of the roman lawyers without questioning or reviewing them. setting aside the conventional or treaty law of nations, it is surprising how large a part of the system is made up of pure roman law. wherever there is a doctrine of the jurisconsults affirmed by them to be in harmony with the jus gentium, the publicists have found a reason for borrowing it, however plainly it may bear the marks of a distinctively roman origin. we may observe too that the derivative theories are afflicted with the weakness of the primary notion. in the majority of the publicists, the mode of thought is still "mixed." in studying these writers, the great difficulty is always to discover whether they are discussing law or morality--whether the state of international relations they describe is actual or ideal--whether they lay down that which is, or that which, in their opinion, ought to be. the assumption that natural law is binding on states _inter se_ is the next in rank of those which underlie international law. a series of assertions or admissions of this principle may be traced up to the very infancy of modern juridical science, and at first sight it seems a direct inference from the teaching of the romans. the civil condition of society being distinguished from the natural by the fact that in the first there is a distinct author of law, while in the last there is none, it appears as if the moment a number of _units_ were acknowledged to obey no common sovereign or political superior they were thrown back on the ulterior behests of the law natural. states are such units; the hypothesis of their independence excludes the notion of a common lawgiver, and draws with it, therefore, according to a certain range of ideas, the notion of subjection to the primeval order of nature. the alternative is to consider independent communities as not related to each other by any law, but this condition of lawlessness is exactly the vacuum which the nature of the jurisconsults abhorred. there is certainly apparent reason for thinking that if the mind of a roman lawyer rested on any sphere from which civil law was banished, it would instantly fill the void with the ordinances of nature. it is never safe, however, to assume that conclusions, however certain and immediate in our own eyes, were actually drawn at any period of history. no passage has ever been adduced from the remains of roman law which, in my judgment, proves the jurisconsults to have believed natural law to have obligatory force between independent commonwealths; and we cannot but see that to citizens of the roman empire who regarded their sovereign's dominions as conterminous with civilisation, the equal subjection of states to the law of nature, if contemplated at all, must have seemed at most an extreme result of curious speculation. the truth appears to be that modern international law, undoubted as is its descent from roman law, is only connected with it by an irregular filiation. the early modern interpreters of the jurisprudence of rome, misconceiving the meaning of jus gentium, assumed without hesitation that the romans had bequeathed to them a system of rules for the adjustment of international transactions. this "law of nations" was at first an authority which had formidable competitors to strive with, and the condition of europe was long such as to preclude its universal reception. gradually, however, the western world arranged itself in a form more favourable to the theory of the civilians; circumstances destroyed the credit of rival doctrines; and at last, at a peculiarly felicitous conjuncture, ayala and grotius were able to obtain for it the enthusiastic assent of europe, an assent which has been over and over again renewed in every variety of solemn engagement. the great men to whom its triumph is chiefly owing attempted, it need scarcely be said, to place it on an entirely new basis, and it is unquestionable that in the course of this displacement they altered much of its structure, though far less of it than is commonly supposed. having adopted from the antonine jurisconsults the position that the jus gentium and the jus naturæ were identical, grotius, with his immediate predecessors and his immediate successors, attributed to the law of nature an authority which would never perhaps have been claimed for it, if "law of nations" had not in that age been an ambiguous expression. they laid down unreservedly that natural law is the code of states, and thus put in operation a process which has continued almost down to our own day, the process of engrafting on the international system rules which are supposed to have been evolved from the unassisted contemplation of the conception of nature. there is too one consequence of immense practical importance to mankind which, though not unknown during the early modern history of europe, was never clearly or universally acknowledged till the doctrines of the grotian school had prevailed. if the society of nations is governed by natural law, the atoms which compose it must be absolutely equal. men under the sceptre of nature are all equal, and accordingly commonwealths are equal if the international state be one of nature. the proposition that independent communities, however different in size and power, are all equal in the view of the law of nations, has largely contributed to the happiness of mankind, though it is constantly threatened by the political tendencies of each successive age. it is a doctrine which probably would never have obtained a secure footing at all if international law had not been entirely derived from the majestic claims of nature by the publicists who wrote after the revival of letters. on the whole, however, it is astonishing, as i have observed before, how small a proportion the additions made to international law since grotius's day bear to the ingredients which have been simply taken from the most ancient stratum of the roman jus gentium. acquisition of territory has always been the great spur of national ambition, and the rules which govern this acquisition, together with the rules which moderate the wars in which it too frequently results, are merely transcribed from the part of the roman law which treats of the modes of acquiring property _jure gentium_. these modes of acquisition were obtained by the elder jurisconsults, as i have attempted to explain, by abstracting a common ingredient from the usages observed to prevail among the various tribes surrounding rome; and, having been classed on account of their origin in the "law common to all nations," they were thought by the later lawyers to fit in, on the score of their simplicity, with the more recent conception of a law natural. they thus made their way into the modern law of nations, and the result is that those parts of the international system which refer to _dominion_, its nature, its limitations, the modes of acquiring and securing it, are pure roman property law--so much, that is to say, of the roman law of property as the antonine jurisconsults imagined to exhibit a certain congruity with the natural state. in order that these chapters of international law may be capable of application, it is necessary that sovereigns should be related to each other like the members of a group of roman proprietors. this is another of the postulates which lie at the threshold of the international code, and it is also one which could not possibly have been subscribed to during the first centuries of modern european history. it is resolvable into the double proposition that "sovereignty is territorial," _i.e._ that it is always associated with the proprietorship of a limited portion of the earth's surface, and that "sovereigns _inter se_ are to be deemed not _paramount_, but _absolute_, owners of the state's territory." many contemporary writers on international law tacitly assume that the doctrines of their system, founded on principles of equity and common sense, were capable of being readily reasoned out in every stage of modern civilisation. but this assumption, while it conceals some real defects of the international theory, is altogether untenable, so far as regards a large part of modern history. it is not true that the authority of the jus gentium in the concerns of nations was always uncontradicted; on the contrary, it had to struggle long against the claims of several competing systems. it is again not true that the territorial character of sovereignty was always recognised, for long after the dissolution of the roman dominion the minds of men were under the empire of ideas irreconcileable with such a conception. an old order of things, and of views founded on it, had to decay--a new europe, and an apparatus of new notions congenial to it, had to spring up--before two of the chiefest postulates of international law could be universally conceded. it is a consideration well worthy to be kept in view, that during a large part of what we usually term modern history no such conception was entertained as that of "_territorial sovereignty_." sovereignty was not associated with dominion over a portion or subdivision of the earth. the world had lain for so many centuries under the shadow of imperial rome as to have forgotten that distribution of the vast spaces comprised in the empire which had once parcelled them out into a number of independent commonwealths, claiming immunity from extrinsic interference, and pretending to equality of national rights. after the subsidence of the barbarian irruptions, the notion of sovereignty that prevailed seems to have been twofold. on the one hand it assumed the form of what may be called "_tribe_-sovereignty." the franks, the burgundians, the vandals, the lombards, and visigoths were masters, of course, of the territories which they occupied, and to which some of them have given a geographical appellation; but they based no claim of right upon the fact of territorial possession, and indeed attached no importance to it whatever. they appear to have retained the traditions which they brought with them from the forest and the steppe, and to have still been in their own view a patriarchal society, a nomad horde, merely encamped for the time upon the soil which afforded them sustenance. part of transalpine gaul, with part of germany, had now become the country _de facto_ occupied by the franks--it was france; but the merovingian line of chieftains, the descendants of clovis, were not kings of france, they were kings of the franks. the alternative to this peculiar notion of sovereignty appears to have been--and this is the important point--the idea of universal dominion. the moment a monarch departed from the special relation of chief to clansmen, and became solicitous, for purposes of his own, to invest himself with a novel form of sovereignty, the only precedent which suggested itself for his adoption was the domination of the emperors of rome. to parody a common quotation, he became "_aut cæsar aut nullus_." either he pretended to the full prerogative of the byzantine emperor, or he had no political status whatever. in our own age, when a new dynasty is desirous of obliterating the prescriptive title of a deposed line of sovereigns, it takes its designation from the _people_, instead of the _territory_. thus we have emperors and kings of the french, and a king of the belgians. at the period of which we have been speaking, under similar circumstances a different alternative presented itself. the chieftain who would no longer call himself king of the tribe must claim to be emperor of the world. thus, when the hereditary mayors of the palace had ceased to compromise with the monarchs they had long since virtually dethroned, they soon became unwilling to call themselves kings of the franks, a title which belonged to the displaced merovings; but they could not style themselves kings of france, for such a designation, though apparently not unknown, was not a title of dignity. accordingly they came forward as aspirants to universal empire. their motive has been greatly misapprehended. it has been taken for granted by recent french writers that charlemagne was far before his age, quite as much in the character of his designs as in the energy with which he prosecuted them. whether it be true or not that anybody is at any time before his age, it is certainly true that charlemagne, in aiming at an unlimited dominion, was emphatically taking the only course which the characteristic ideas of his age permitted him to follow. of his intellectual eminence there cannot be a question, but it is proved by his acts and not by his theory. these singularities of view were not altered on the partition of the inheritance of charlemagne among his three grandsons. charles the bald, lewis, and lothair were still theoretically--if it be proper to use the word--emperors of rome. just as the cæsars of the eastern and western empires had each been _de jure_ emperor of the whole world, with _de facto_ control over half of it, so the three carlovingians appear to have considered their power as limited, but their title as unqualified. the same speculative universality of sovereignty continued to be associated with the imperial throne after the second division on the death of charles the fat, and, indeed, was never thoroughly dissociated from it so long as the empire of germany lasted. territorial sovereignty--the view which connects sovereignty with the possession of a limited portion of the earth's surface--was distinctly an offshoot, though a tardy one, of _feudalism_. this might have been expected _à priori_, for it was feudalism which for the first time linked personal duties, and by consequence personal rights, to the ownership of land. whatever be the proper view of its origin and legal nature, the best mode of vividly picturing to ourselves the feudal organisation is to begin with the basis, to consider the relation of the tenant to the patch of soil which created and limited his services--and then to mount up, through narrowing circles of super-feudation, till we approximate to the apex of the system. where that summit exactly was during the later portion of the dark ages it is not easy to decide. probably, wherever the conception of tribe sovereignty had really decayed, the topmost point was always assigned to the supposed successor of the cæsars of the west. but before long, when the actual sphere of imperial authority had immensely contracted, and when the emperors had concentrated the scanty remains of their power upon germany and north italy, the highest feudal superiors in all the outlying portions of the former carlovingian empire found themselves practically without a supreme head. gradually they habituated themselves to the new situation, and the fact of immunity put at last out of sight the theory of dependence; but there are many symptoms that this change was not quite easily accomplished; and, indeed, to the impression that in the nature of things there must necessarily be a culminating domination somewhere, we may, no doubt, refer the increasing tendency to attribute secular superiority to the see of rome. the completion of the first stage in the revolution of opinion is marked, of course, by the accession of the capetian dynasty in france. when the feudal prince of a limited territory surrounding paris began, from the accident of his uniting an unusual number of suzerainties in his own person, to call himself _king of france_, he became king in quite a new sense, a sovereign standing in the same relation to the soil of france as the baron to his estate, the tenant to his freehold. the precedent, however, was as influential as it was novel, and the form of the monarchy in france had visible effects in hastening changes which were elsewhere proceeding in the same direction. the kingship of our anglo-saxon regal houses was midway between the chieftainship of a tribe and a territorial supremacy; but the superiority of the norman monarchs, imitated from that of the king of france, was distinctly a territorial sovereignty. every subsequent dominion which was established or consolidated was formed on the later model. spain, naples, and the principalities founded on the ruins of municipal freedom in italy, were all under rulers whose sovereignty was territorial. few things, i may add, are more curious than the gradual lapse of the _venetians_ from one view to the other. at the commencement of its foreign conquests, the republic regarded itself as an antitype of the roman commonwealth, governing a number of subject provinces. move a century onwards, and you find that it wishes to be looked upon as a corporate sovereign, claiming the rights of a feudal suzerain over its possessions in italy and the Ægean. during the period through which the popular ideas on the subject of sovereignty were undergoing this remarkable change, the system which stood in the place of what we now call international law, was heterogeneous in form and inconsistent in the principles to which it appealed. over so much of europe as was comprised in the romano-german empire, the connection of the confederate states was regulated by the complex and as yet incomplete mechanism of the imperial constitution; and, surprising as it may seem to us, it was a favourite notion of german lawyers that the relations of commonwealths, whether inside or outside the empire, ought to be regulated not by the _jus gentium_, but by the pure roman jurisprudence, of which cæsar was still the centre. this doctrine was less confidently repudiated in the outlying countries than we might have supposed antecedently; but, substantially, through the rest of europe feudal subordinations furnished a substitute for a public law; and when those were undetermined or ambiguous, there lay behind, in theory at least, a supreme regulating force in the authority of the head of the church. it is certain, however, that both feudal and ecclesiastical influences were rapidly decaying during the fifteenth, and even the fourteenth century; and if we closely examine the current pretexts of wars, and the avowed motives of alliances, it will be seen that, step by step with the displacement of the old principles, the views afterwards harmonised and consolidated by ayala and grotius were making considerable progress, though it was silent and but slow. whether the fusion of all the sources of authority would ultimately have evolved a system of international relations, and whether that system would have exhibited material differences from the fabric of grotius, is not now possible to decide, for as a matter of fact the reformation annihilated all its potential elements except one. beginning in germany, it divided the princes of the empire by a gulf too broad to be bridged over by the imperial supremacy, even if the imperial superior had stood neutral. he, however, was forced to take colour with the church against the reformers; the pope was, as a matter of course, in the same predicament; and thus the two authorities to whom belonged the office of mediation between combatants became themselves the chiefs of one great faction in the schism of the nations. feudalism, already enfeebled and discredited as a principle of public relations, furnished no bond whatever which was stable enough to countervail the alliances of religion. in a condition, therefore, of public law which was little less than chaotic, those views of a state system to which the roman jurisconsults were supposed to have given their sanction alone remained standing. the shape, the symmetry, and the prominence which they assumed in the hands of grotius are known to every educated man; but the great marvel of the treatise "de jure belli et pacis," was its rapid, complete, and universal success. the horrors of the thirty years' war, the boundless terror and pity which the unbridled license of the soldiery was exciting, must, no doubt, be taken to explain that success in some measure, but they do not wholly account for it. very little penetration into the ideas of that age is required to convince one that if the ground plan of the international edifice which was sketched in the great book of grotius had not appeared to be theoretically perfect, it would have been discarded by jurists and neglected by statesmen and soldiers. it is obvious that the speculative perfection of the grotian system is intimately connected with that conception of territorial sovereignty which we have been discussing. the theory of international law assumes that commonwealths are, relatively to each other, in a state of nature; but the component atoms of a natural society must, by the fundamental assumption, be insulated and independent of each other. if there be a higher power connecting them, however slightly and occasionally by the claim of common supremacy, the very conception of a common superior introduces the notion of positive law, and excludes the idea of a law natural. it follows, therefore, that if the universal suzerainty of an imperial head had been admitted even in bare theory, the labours of grotius would have been idle. nor is this the only point of junction between modern public law and those views of sovereignty of which i have endeavoured to describe the development. i have said that there are entire departments of international jurisprudence which consist of the roman law of property. what then is the inference? it is, that if there had been no such change as i have described in the estimate of sovereignty--if sovereignty had not been associated with the proprietorship of a limited portion of the earth, had not, in other words, become territorial--three parts of the grotian theory would have been incapable of application. chapter v primitive society and ancient law the necessity of submitting the subject of jurisprudence to scientific treatment has never been entirely lost sight of in modern times, and the essays which the consciousness of this necessity has produced have proceeded from minds of very various calibre, but there is not much presumption, i think, in asserting that what has hitherto stood in the place of a science has for the most part been a set of guesses, those very guesses of the roman lawyers which were examined in the two preceding chapters. a series of explicit statements, recognising and adopting these conjectural theories of a natural state, and of a system of principles congenial to it, has been continued with but brief interruption from the days of their inventors to our own. they appear in the annotations of the glossators who founded modern jurisprudence, and in the writings of the scholastic jurists who succeeded them. they are visible in the dogmas of the canonists. they are thrust into prominence by those civilians of marvellous erudition, who flourished at the revival of ancient letters. grotius and his successors invested them not less with brilliancy and plausibility than with practical importance. they may be read in the introductory chapters of our own blackstone, who has transcribed them textually from burlamaqui, and wherever the manuals published in the present day for the guidance of the student or the practitioner begin with any discussion of the first principles of law, it always resolves itself into a restatement of the roman hypothesis. it is however from the disguises with which these conjectures sometimes clothe themselves, quite as much as from their native form, that we gain an adequate idea of the subtlety with which they mix themselves in human thought. the lockeian theory of the origin of law in a social compact scarcely conceals its roman derivation, and indeed is only the dress by which the ancient views were rendered more attractive to a particular generation of the moderns; but on the other hand the theory of hobbes on the same subject was purposely devised to repudiate the reality of a law of nature as conceived by the romans and their disciples. yet these two theories, which long divided the reflecting politicians of england into hostile camps, resemble each other strictly in their fundamental assumption of a non-historic, unverifiable, condition of the race. their authors differed as to the characteristics of the præ-social state, and as to the nature of the abnormal action by which men lifted themselves out of it into that social organisation with which alone we are acquainted, but they agreed in thinking that a great chasm separated man in his primitive condition from man in society, and this notion we cannot doubt that they borrowed, consciously or unconsciously, from the romans. if indeed the phenomena of law be regarded in the way in which these theorists regarded them--that is, as one vast complex whole--it is not surprising that the mind should often evade the task it has set to itself by falling back on some ingenious conjecture which (plausibly interpreted) will seem to reconcile everything, or else that it should sometimes abjure in despair the labour of systematization. from the theories of jurisprudence which have the same speculative basis as the roman doctrine two of much celebrity must be excepted. the first of them is that associated with the great name of montesquieu. though there are some ambiguous expressions in the early part of the _esprit des lois_, which seem to show its writer's unwillingness to break quite openly with the views hitherto popular, the general drift of the book is certainly to indicate a very different conception of its subject from any which had been entertained before. it has often been noticed that, amidst the vast variety of examples which, in its immense width of survey, it sweeps together from supposed systems of jurisprudence, there is an evident anxiety to thrust into especial prominence those manners and institutions which astonish the civilised reader by their uncouthness, strangeness, or indecency. the inference constantly suggested is, that laws are the creatures of climate, local situation, accident, or imposture--the fruit of any causes except those which appear to operate with tolerable constancy. montesquieu seems, in fact, to have looked on the nature of man as entirely plastic, as passively reproducing the impressions, and submitting implicitly to the impulses, which it receives from without. and here no doubt lies the error which vitiates his system as a system. he greatly underrates the stability of human nature. he pays little or no regard to the inherited qualities of the race, those qualities which each generation receives from its predecessors, and transmits but slightly altered to the generation which follows it. it is quite true, indeed, that no complete account can be given of social phenomena, and consequently of laws, till due allowance has been made for those modifying causes which are noticed in the _esprit des lois_; but their number and their force appear to have been overestimated by montesquieu. many of the anomalies which he parades have since been shown to rest on false report or erroneous construction, and of those which remain not a few prove the permanence rather than the variableness of man's nature, since they are relics of older stages of the race which have obstinately defied the influences that have elsewhere had effect. the truth is that the stable part of our mental, moral, and physical constitution is the largest part of it, and the resistance it opposes to change is such that, though the variations of human society in a portion of the world are plain enough, they are neither so rapid nor so extensive that their amount, character, and general direction cannot be ascertained. an approximation to truth may be all that is attainable with our present knowledge, but there is no reason for thinking that is so remote, or (what is the same thing) that it requires so much future correction, as to be entirely useless and uninstructive. the other theory which has been adverted to is the historical theory of bentham. this theory which is obscurely (and, it might even be said, timidly) propounded in several parts of bentham's works is quite distinct from that analysis of the conception of law which he commenced in the "fragment on government," and which was more recently completed by mr. john austin. the resolution of a law into a command of a particular nature, imposed under special conditions, does not affect to do more than protect us against a difficulty--a most formidable one certainly--of language. the whole question remains open as to the motives of societies in imposing these commands on themselves, as to the connection of these commands with each other, and the nature of their dependence on those which preceded them, and which they have superseded. bentham suggests the answer that societies modify, and have always modified, their laws according to modifications of their views of general expediency. it is difficult to say that this proposition is false, but it certainly appears to be unfruitful. for that which seems expedient to a society, or rather to the governing part of it, when it alters a rule of law is surely the same thing as the object, whatever it may be, which it has in view when it makes the change. expediency and the greatest good are nothing more than different names for the impulse which prompts the modification; and when we lay down expediency as the rule of change in law or opinion, all we get by the proposition is the substitution of an express term for a term which is necessarily implied when we say that a change takes place. there is such wide-spread dissatisfaction with existing theories of jurisprudence, and so general a conviction that they do not really solve the questions they pretend to dispose of, as to justify the suspicion that some line of inquiry necessary to a perfect result has been incompletely followed or altogether omitted by their authors. and indeed there is one remarkable omission with which all these speculations are chargeable, except perhaps those of montesquieu. they take no account of what law has actually been at epochs remote from the particular period at which they made their appearance. their originators carefully observed the institutions of their own age and civilisation, and those of other ages and civilisations with which they had some degree of intellectual sympathy, but, when they turned their attention to archaic states of society which exhibited much superficial difference from their own, they uniformly ceased to observe and began guessing. the mistake which they committed is therefore analogous to the error of one who, in investigating the laws of the material universe, should commence by contemplating the existing physical world as a whole, instead of beginning with the particles which are its simplest ingredients. one does not certainly see why such a scientific solecism should be more defensible in jurisprudence than in any other region of thought. it would seem antecedently that we ought to commence with the simplest social forms in a state as near as possible to their rudimentary condition. in other words, if we followed the course usual in such inquiries, we should penetrate as far up as we could in the history of primitive societies. the phenomena which early societies present us with are not easy at first to understand, but the difficulty of grappling with them bears no proportion to the perplexities which beset us in considering the baffling entanglement of modern social organisation. it is a difficulty arising from their strangeness and uncouthness, not from their number and complexity. one does not readily get over the surprise which they occasion when looked at from a modern point of view; but when that is surmounted they are few enough and simple enough. but even if they gave more trouble than they do, no pains would be wasted in ascertaining the germs out of which has assuredly been unfolded every form of moral restraint which controls our actions and shapes our conduct at the present moment. the rudiments of the social state, so far as they are known to us at all, are known through testimony of three sorts--accounts by contemporary observers of civilisations less advanced than their own, the records which particular races have preserved concerning their primitive history, and ancient law. the first kind of evidence is the best we could have expected. as societies do not advance concurrently, but at different rates of progress, there have been epochs at which men trained to habits of methodical observation have really been in a position to watch and describe the infancy of mankind. tacitus made the most of such an opportunity; but the _germany_, unlike most celebrated classical books, has not induced others to follow the excellent example set by its author, and the amount of this sort of testimony which we possess is exceedingly small. the lofty contempt which a civilised people entertains for barbarous neighbours has caused a remarkable negligence in observing them, and this carelessness has been aggravated at times by fear, by religious prejudice, and even by the use of these very terms--civilisation and barbarism--which convey to most persons the impression of a difference not merely in degree but in kind. even the _germany_ has been suspected by some critics of sacrificing fidelity to poignancy of contrast and picturesqueness of narrative. other histories too, which have been handed down to us among the archives of the people to whose infancy they relate, have been thought distorted by the pride of race or by the religious sentiment of a newer age. it is important then to observe that these suspicions, whether groundless or rational, do not attach to a great deal of archaic law. much of the old law which has descended to us was preserved merely because it was old. those who practised and obeyed it did not pretend to understand it; and in some cases they even ridiculed and despised it. they offered no account of it except that it had come down to them from their ancestors. if we confine our attention, then, to those fragments of ancient institutions which cannot reasonably be supposed to have been tampered with, we are able to gain a clear conception of certain great characteristics of the society to which they originally belonged. advancing a step further, we can apply our knowledge to systems of law which, like the code of menu, are as a whole of suspicious authenticity; and, using the key we have obtained, we are in a position to discriminate those portions of them which are truly archaic from those which have been affected by the prejudices, interests, or ignorance of the compiler. it will at least be acknowledged that, if the materials for this process are sufficient, and if the comparisons be accurately executed, the methods followed are as little objectionable as those which have led to such surprising results in comparative philology. the effect of the evidence derived from comparative jurisprudence is to establish that view of the primeval condition of the human race which is known as the patriarchal theory. there is no doubt, of course, that this theory was originally based on the scriptural history of the hebrew patriarchs in lower asia; but, as has been explained already, its connection with scripture rather militated than otherwise against its reception as a complete theory, since the majority of the inquirers who till recently addressed themselves with most earnestness to the colligation of social phenomena, were either influenced by the strongest prejudice against hebrew antiquities or by the strongest desire to construct their system without the assistance of religious records. even now there is perhaps a disposition to undervalue these accounts, or rather to decline generalising from them, as forming part of the traditions of a semitic people. it is to be noted, however, that the legal testimony comes nearly exclusively from the institutions of societies belonging to the indo-european stock, the romans, hindoos, and sclavonians supplying the greater part of it; and indeed the difficulty at the present stage of the inquiry, is to know where to stop, to say of what races of men it is _not_ allowable to lay down that the society in which they are united was originally organised on the patriarchal model. the chief lineaments of such a society, as collected from the early chapters in genesis, i need not attempt to depict with any minuteness, both because they are familiar to most of us from our earliest childhood, and because, from the interest once attaching to the controversy which takes its name from the debate between locke and filmer, they fill a whole chapter, though not a very profitable one, in english literature. the points which lie on the surface of the history are these:--the eldest male parent--the eldest ascendant--is absolutely supreme in his household. his dominion extends to life and death, and is as unqualified over his children and their houses as over his slaves; indeed the relations of sonship and serfdom appear to differ in little beyond the higher capacity which the child in blood possesses of becoming one day the head of a family himself. the flocks and herds of the children are the flocks and herds of the father, and the possessions of the parent, which he holds in a representative rather than in a proprietary character, are equally divided at his death among his descendants in the first degree, the eldest son sometimes receiving a double share under the name of birthright, but more generally endowed with no hereditary advantage beyond an honorary precedence. a less obvious inference from the scriptural accounts is that they seem to plant us on the traces of the breach which is first effected in the empire of the parent. the families of jacob and esau separate and form two nations; but the families of jacob's children hold together and become a people. this looks like the immature germ of a state or commonwealth, and of an order of rights superior to the claims of family relation. if i were attempting for the more special purposes of the jurist to express compendiously the characteristics of the situation in which mankind disclose themselves at the dawn of their history, i should be satisfied to quote a few verses from the _odyssee_ of homer: [greek: toisin d out agorai boulêphoroi oute themistes. * * * themisteuei de ekastos paidôn êd alochôn, oud allêlôn alegousin.] "they have neither assemblies for consultation nor _themistes_, but every one exercises jurisdiction over his wives and his children, and they pay no regard to one another." these lines are applied to the cyclops, and it may not perhaps be an altogether fanciful idea when i suggest that the cyclops is homer's type of an alien and less advanced civilisation; for the almost physical loathing which a primitive community feels for men of widely different manners from its own usually expresses itself by describing them as monsters, such as giants, or even (which is almost always the case in oriental mythology) as demons. however that may be, the verses condense in themselves the sum of the hints which are given us by legal antiquities. men are first seen distributed in perfectly insulated groups, held together by obedience to the parent. law is the parent's word, but it is not yet in the condition of those _themistes_ which were analysed in the first chapter of this work. when we go forward to the state of society in which these early legal conceptions show themselves as formed, we find that they still partake of the mystery and spontaneity which must have seemed to characterise a despotic father's commands, but that at the same time, inasmuch as they proceed from a sovereign, they presuppose a union of family groups in some wider organisation. the next question is, what is the nature of this union and the degree of intimacy which it involves? it is just here that archaic law renders us one of the greatest of its services and fills up a gap which otherwise could only have been bridged by conjecture. it is full, in all its provinces, of the clearest indications that society in primitive times was not what it is assumed to be at present, a collection of _individuals_. in fact, and in the view of the men who composed it, it was _an aggregation of families_. the contrast may be most forcibly expressed by saying that the _unit_ of an ancient society was the family, of a modern society the individual. we must be prepared to find in ancient law all the consequences of this difference. it is so framed as to be adjusted to a system of small independent corporations. it is therefore scanty, because it is supplemented by the despotic commands of the heads of households. it is ceremonious, because the transactions to which it pays regard resemble international concerns much more than the quick play of intercourse between individuals. above all it has a peculiarity of which the full importance cannot be shown at present. it takes a view of _life_ wholly unlike any which appears in developed jurisprudence. corporations _never die_, and accordingly primitive law considers the entities with which it deals, _i.e._ the patriarchal or family groups, as perpetual and inextinguishable. this view is closely allied to the peculiar aspect under which, in very ancient times, moral attributes present themselves. the moral elevation and moral debasement of the individual appear to be confounded with, or postponed to, the merits and offences of the group to which the individual belongs. if the community sins, its guilt is much more than the sum of the offences committed by its members; the crime is a corporate act, and extends in its consequences to many more persons than have shared in its actual perpetration. if, on the other hand, the individual is conspicuously guilty, it is his children, his kinsfolk, his tribesmen, or his fellow-citizens, who suffer with him, and sometimes for him. it thus happens that the ideas of moral responsibility and retribution often seem to be more clearly realised at very ancient than at more advanced periods, for, as the family group is immortal, and its liability to punishment indefinite, the primitive mind is not perplexed by the questions which become troublesome as soon as the individual is conceived as altogether separate from the group. one step in the transition from the ancient and simple view of the matter to the theological or metaphysical explanations of later days is marked by the early greek notion of an inherited curse. the bequest received by his posterity from the original criminal was not a liability to punishment, but a liability to the commission of fresh offences which drew with them a condign retribution; and thus the responsibility of the family was reconciled with the newer phase of thought which limited the consequences of crime to the person of the actual delinquent. it would be a very simple explanation of the origin of society if we could base a general conclusion on the hint furnished us by the scriptural example already adverted to, and could suppose that communities began to exist wherever a family held together instead of separating at the death of its patriarchal chieftain. in most of the greek states and in rome there long remained the vestiges of an ascending series of groups out of which the state was at first constituted. the family, house, and tribe of the romans may be taken as the type of them, and they are so described to us that we can scarcely help conceiving them as a system of concentric circles which have gradually expanded from the same point. the elementary group is the family, connected by common subjection to the highest male ascendant. the aggregation of families forms the gens or house. the aggregation of houses makes the tribe. the aggregation of tribes constitutes the commonwealth. are we at liberty to follow these indications, and to lay down that the commonwealth is a collection of persons united by common descent from the progenitor of an original family? of this we may at least be certain, that all ancient societies regarded themselves as having proceeded from one original stock, and even laboured under an incapacity for comprehending any reason except this for their holding together in political union. the history of political ideas begins, in fact, with the assumption that kinship in blood is the sole possible ground of community in political functions; nor is there any of those subversions of feeling, which we term emphatically revolutions, so startling and so complete as the change which is accomplished when some other principle--such as that, for instance, of _local contiguity_--establishes itself for the first time as the basis of common political action. it may be affirmed then of early commonwealths that their citizens considered all the groups in which they claimed membership to be founded on common lineage. what was obviously true of the family was believed to be true first of the house, next of the tribe, lastly of the state. and yet we find that along with this belief, or, if we may use the word, this theory, each community preserved records or traditions which distinctly showed that the fundamental assumption was false. whether we look to the greek states, or to rome, or to the teutonic aristocracies in ditmarsh which furnished niebuhr with so many valuable illustrations, or to the celtic clan associations, or to that strange social organisation of the sclavonic russians and poles which has only lately attracted notice, everywhere we discover traces of passages in their history when men of alien descent were admitted to, and amalgamated with, the original brotherhood. adverting to rome singly, we perceive that the primary group, the family, was being constantly adulterated by the practice of adoption, while stories seem to have been always current respecting the exotic extraction of one of the original tribes and concerning a large addition to the houses made by one of the early kings. the composition of the state, uniformly assumed to be natural, was nevertheless known to be in great measure artificial. this conflict between belief or theory and notorious fact is at first sight extremely perplexing; but what it really illustrates is the efficiency with which legal fictions do their work in the infancy of society. the earliest and most extensively employed of legal fictions was that which permitted family relations to be created artificially, and there is none to which i conceive mankind to be more deeply indebted. if it had never existed, i do not see how any one of the primitive groups, whatever were their nature, could have absorbed another, or on what terms any two of them could have combined, except those of absolute superiority on one side and absolute subjection on the other. no doubt, when with our modern ideas we contemplate the union of independent communities, we can suggest a hundred modes of carrying it out, the simplest of all being that the individuals comprised in the coalescing groups shall vote or act together according to local propinquity; but the idea that a number of persons should exercise political rights in common simply because they happened to live within the same topographical limits was utterly strange and monstrous to primitive antiquity. the expedient which in those times commanded favour was that the incoming population should _feign themselves_ to be descended from the same stock as the people on whom they were engrafted; and it is precisely the good faith of this fiction, and the closeness with which it seemed to imitate reality, that we cannot now hope to understand. one circumstance, however, which it is important to recollect, is that the men who formed the various political groups were certainly in the habit of meeting together periodically, for the purpose of acknowledging and consecrating their association by common sacrifices. strangers amalgamated with the brotherhood were doubtless admitted to these sacrifices; and when that was once done we can believe that it seemed equally easy, or not more difficult, to conceive them as sharing in the common lineage. the conclusion then which is suggested by the evidence is, not that all early societies were formed by descent from the same ancestor, but that all of them which had any permanence and solidity either were so descended or assumed that they were. an indefinite number of causes may have shattered the primitive groups, but wherever their ingredients recombined, it was on the model or principle of an association of kindred. whatever were the fact, all thought, language, and law adjusted themselves to the assumption. but though all this seems to me to be established with reference to the communities with whose records we are acquainted, the remainder of their history sustains the position before laid down as to the essentially transient and terminable influence of the most powerful legal fictions. at some point of time--probably as soon as they felt themselves strong enough to resist extrinsic pressure--all these states ceased to recruit themselves by factitious extensions of consanguinity. they necessarily, therefore, became aristocracies, in all cases where a fresh population from any cause collected around them which could put in no claim to community of origin. their sternness in maintaining the central principle of a system under which political rights were attainable on no terms whatever except connection in blood, real or artificial, taught their inferiors another principle, which proved to be endowed with a far higher measure of vitality. this was the principle of _local contiguity_, now recognised everywhere as the condition of community in political functions. a new set of political ideas came at once into existence, which, being those of ourselves, our contemporaries, and in great measure of our ancestors, rather obscure our perception of the older theory which they vanquished and dethroned. the family then is the type of an archaic society in all the modifications which it was capable of assuming; but the family here spoken of is not exactly the family as understood by a modern. in order to reach the ancient conception we must give to our modern ideas an important extension and an important limitation. we must look on the family as constantly enlarged by the absorption of strangers within its circle, and we must try to regard the fiction of adoption as so closely simulating the reality of kinship that neither law nor opinion makes the slightest difference between a real and an adoptive connection. on the other hand, the persons theoretically amalgamated into a family by their common descent are practically held together by common obedience to their highest living ascendant, the father, grandfather, or great-grandfather. the patriarchal authority of a chieftain is as necessary an ingredient in the notion of the family group as the fact (or assumed fact) of its having sprung from his loins; and hence we must understand that if there be any persons who, however truly included in the brotherhood by virtue of their blood-relationship, have nevertheless _de facto_ withdrawn themselves from the empire of its ruler, they are always, in the beginnings of law, considered as lost to the family. it is this patriarchal aggregate--the modern family thus cut down on one side and extended on the other--which meets us on the threshold of primitive jurisprudence. older probably than the state, the tribe, and the house, it left traces of itself on private law long after the house and the tribe had been forgotten, and long after consanguinity had ceased to be associated with the composition of states. it will be found to have stamped itself on all the great departments of jurisprudence, and may be detected, i think, as the true source of many of their most important and most durable characteristics. at the outset, the peculiarities of law in its most ancient state lead us irresistibly to the conclusion that it took precisely the same view of the family group which is taken of individual men by the systems of rights and duties now prevalent throughout europe. there are societies open to our observation at this very moment whose laws and usages can scarcely be explained unless they are supposed never to have emerged from this primitive condition; but in communities more fortunately circumstanced the fabric of jurisprudence fell gradually to pieces, and if we carefully observe the disintegration we shall perceive that it took place principally in those portions of each system which were most deeply affected by the primitive conception of the family. in one all-important instance, that of the roman law, the change was effected so slowly, that from epoch to epoch we can observe the line and direction which it followed, and can even give some idea of the ultimate result to which it was tending. and, in pursuing this last inquiry, we need not suffer ourselves to be stopped by the imaginary barrier which separates the modern from the ancient world. for one effect of that mixture of refined roman law with primitive barbaric usage, which is known to us by the deceptive name of feudalism, was to revive many features of archaic jurisprudence which had died out of the roman world, so that the decomposition which had seemed to be over commenced again, and to some extent is still proceeding. on a few systems of law the family organisation of the earliest society has left a plain and broad mark in the life-long authority of the father or other ancestor over the person and property of his descendants, an authority which we may conveniently call by its later roman name of patria potestas. no feature of the rudimentary associations of mankind is deposed to by a greater amount of evidence than this, and yet none seems to have disappeared so generally and so rapidly from the usages of advancing communities. gaius, writing under the antonines, describes the institution as distinctively roman. it is true that, had he glanced across the rhine or the danube to those tribes of barbarians which were exciting the curiosity of some among his contemporaries, he would have seen examples of patriarchal power in its crudest form; and in the far east a branch of the same ethnical stock from which the romans sprang was repeating their patria potestas in some of its most technical incidents. but among the races understood to be comprised within the roman empire, gaius could find none which exhibited an institution resembling the roman "power of the father," except only the asiatic galatæ. there are reasons, indeed, as it seems to me, why the direct authority of the ancestor should, in the greater number of progressive societies, very shortly assume humbler proportions than belonged to it in their earliest state. the implicit obedience of rude men to their parent is doubtless a primary fact, which it would be absurd to explain away altogether by attributing to them any calculation of its advantages; but, at the same time, if it is natural in the sons to obey the father, it is equally natural that they should look to him for superior strength or superior wisdom. hence, when societies are placed under circumstances which cause an especial value to be attached to bodily and mental vigour, there is an influence at work which tends to confine the patria potestas to the cases where its possessor is actually skilful and strong. when we obtain our first glimpse of organised hellenic society, it seems as if supereminent wisdom would keep alive the father's power in persons whose bodily strength had decayed; but the relations of ulysses and laertes in the _odyssee_ appear to show that, where extraordinary valour and sagacity were united in the son, the father in the decrepitude of age was deposed from the headship of the family. in the mature greek jurisprudence, the rule advances a few steps on the practice hinted at in the homeric literature; and though very many traces of stringent family obligation remain, the direct authority of the parent is limited, as in european codes, to the nonage or minority of the children, or, in other words, to the period during which their mental and physical inferiority may always be presumed. the roman law, however, with its remarkable tendency to innovate on ancient usage only just so far as the exigency of the commonwealth may require, preserves both the primeval institution and the natural limitation to which i conceive it to have been subject. in every relation of life in which the collective community might have occasion to avail itself of his wisdom and strength, for all purposes of counsel or of war, the filius familias, or son under power, was as free as his father. it was a maxim of roman jurisprudence that the patria potestas did not extend to the jus publicum. father and son voted together in the city, and fought side by side in the field; indeed, the son, as general, might happen to command the father, or, as magistrate, decide on his contracts and punish his delinquencies. but in all the relations created by private law, the son lived under a domestic despotism which, considering the severity it retained to the last, and the number of centuries through which it endured, constitutes one of the strangest problems in legal history. the patria potestas of the romans, which is necessarily our type of the primeval paternal authority, is equally difficult to understand as an institution of civilised life, whether we consider its incidence on the person or its effects on property. it is to be regretted that a chasm which exists in its history cannot be more completely filled. so far as regards the person, the parent, when our information commences, has over his children the _jus vitæ necisque_, the power of life and death, and _à fortiori_ of uncontrolled corporal chastisement; he can modify their personal condition at pleasure; he can give a wife to his son; he can give his daughter in marriage; he can divorce his children of either sex; he can transfer them to another family by adoption; and he can sell them. late in the imperial period we find vestiges of all these powers, but they are reduced within very narrow limits. the unqualified right of domestic chastisement has become a right of bringing domestic offences under the cognisance of the civil magistrate; the privilege of dictating marriage has declined into a conditional veto; the liberty of selling has been virtually abolished, and adoption itself, destined to lose almost all its ancient importance in the reformed system of justinian, can no longer be effected without the assent of the child transferred to the adoptive parentage. in short, we are brought very close to the verge of the ideas which have at length prevailed in the modern world. but between these widely distant epochs there is an interval of obscurity, and we can only guess at the causes which permitted the patria potestas to last as long as it did by rendering it more tolerable than it appears. the active discharge of the most important among the duties which the son owed to the state must have tempered the authority of his parent if they did not annul it. we can readily persuade ourselves that the paternal despotism could not be brought into play without great scandal against a man of full age occupying a high civil office. during the earlier history, however, such cases of practical emancipation would be rare compared with those which must have been created by the constant wars of the roman republic. the military tribune and the private soldier who were in the field three-quarters of a year during the earlier contests, at a later period the proconsul in charge of a province, and the legionaries who occupied it, cannot have had practical reason to regard themselves as the slaves of a despotic master; and all these avenues of escape tended constantly to multiply themselves. victories led to conquests, conquests to occupations; the mode of occupation by colonies was exchanged for the system of occupying provinces by standing armies. each step in advance was a call for the expatriation of more roman citizens and a fresh draft on the blood of the failing latin race. we may infer, i think, that a strong sentiment in favour of the relaxation of the patria potestas had become fixed by the time that the pacification of the world commenced on the establishment of the empire. the first serious blows at the ancient institution are attributed to the earlier cæsars, and some isolated interferences of trajan and hadrian seem to have prepared the ground for a series of express enactments which, though we cannot always determine their dates, we know to have limited the father's powers on the one hand, and on the other to have multiplied facilities for their voluntary surrender. the older mode of getting rid of the potestas, by effecting a triple sale of the son's person, is evidence, i may remark, of a very early feeling against the unnecessary prolongation of the powers. the rule which declared that the son should be free after having been three times sold by his father seems to have been originally meant to entail penal consequences on a practice which revolted even the imperfect morality of the primitive roman. but even before the publication of the twelve tables it had been turned, by the ingenuity of the jurisconsults, into an expedient for destroying the parental authority wherever the father desired that it should cease. many of the causes which helped to mitigate the stringency of the father's power over the persons of his children are doubtless among those which do not lie upon the face of history. we cannot tell how far public opinion may have paralysed an authority which the law conferred, or how far natural affection may have rendered it endurable. but though the powers over the _person_ may have been latterly nominal, the whole tenour of the extant roman jurisprudence suggests that the father's rights over the son's _property_ were always exercised without scruple to the full extent to which they were sanctioned by law. there is nothing to astonish us in the latitude of these rights when they first show themselves. the ancient law of rome forbade the children under power to hold property apart from their parent, or (we should rather say) never contemplated the possibility of their claiming a separate ownership. the father was entitled to take the whole of the son's acquisitions, and to enjoy the benefit of his contracts without being entangled in any compensating liability. so much as this we should expect from the constitution of the earliest roman society, for we can hardly form a notion of the primitive family group unless we suppose that its members brought their earnings of all kinds into the common stock while they were unable to bind it by improvident individual engagements. the true enigma of the patria potestas does not reside here, but in the slowness with which these proprietary privileges of the parent were curtailed, and in the circumstance that, before they were seriously diminished, the whole civilised world was brought within their sphere. no innovation of any kind was attempted till the first years of the empire, when the acquisitions of soldiers on service were withdrawn from the operation of the patria potestas, doubtless as part of the reward of the armies which had overthrown the free commonwealth. three centuries afterwards the same immunity was extended to the earnings of persons who were in the civil employment of the state. both changes were obviously limited in their application, and they were so contrived in technical form as to interfere as little as possible with the principle of patria potestas. a certain qualified and dependent ownership had always been recognised by the roman law in the perquisites and savings which slaves and sons under power were not compelled to include in the household accounts, and the special name of this permissive property, peculium, was applied to the acquisitions newly relieved from patria potestas, which were called in the case of soldiers castrense peculium, and quasi-castrense peculium in the case of civil servants. other modifications of the parental privileges followed, which showed a less studious outward respect for the ancient principle. shortly after the introduction of the quasi-castrense peculium, constantine the great took away the father's absolute control over property which his children had inherited from their mother, and reduced it to a _usufruct_, or life-interest. a few more changes of slight importance followed in the western empire, but the furthest point reached was in the east, under justinian, who enacted that unless the acquisitions of the child were derived from the parent's own property, the parent's rights over them should not extend beyond enjoying their produce for the period of his life. even this, the utmost relaxation of the roman patria potestas, left it far ampler and severer than any analogous institution of the modern world. the earliest modern writers on jurisprudence remark that it was only the fiercer and ruder of the conquerors of the empire, and notably the nations of sclavonic origin, which exhibited a patria potestas at all resembling that which was described in the pandects and the code. all the germanic immigrants seem to have recognised a corporate union of the family under the _mund_, or authority of a patriarchal chief; but his powers are obviously only the relics of a decayed patria potestas, and fell far short of those enjoyed by the roman father. the franks are particularly mentioned as not having the roman institution, and accordingly the old french lawyers, even when most busily engaged in filling the interstices of barbarous custom with rules of roman law, were obliged to protect themselves against the intrusion of the potestas by the express maxim, _puyssance de père en france n'a lieu_. the tenacity of the romans in maintaining this relic of their most ancient condition is in itself remarkable, but it is less remarkable than the diffusion of the potestas over the whole of a civilisation from which it had once disappeared. while the castrense peculium constituted as yet the sole exception to the father's power over property, and while his power over his children's persons was still extensive, the roman citizenship, and with it the patria potestas, were spreading into every corner of the empire. every african or spaniard, every gaul, briton, or jew, who received this honour by gift, purchase, or inheritance, placed himself under the roman law of persons, and, though our authorities intimate that children born before the acquisition of citizenship could not be brought under power against their will, children born after it and all ulterior descendants were on the ordinary footing of a roman _filius familias_. it does not fall within the province of this treatise to examine the mechanism of the later roman society, but i may be permitted to remark that there is little foundation for the opinion which represents the constitution of antoninus caracalla conferring roman citizenship on the whole of his subjects as a measure of small importance. however we may interpret it, it must have enormously enlarged the sphere of the patria potestas, and it seems to me that the tightening of family relations which it effected is an agency which ought to be kept in view more than it has been, in accounting for the great moral revolution which was transforming the world. before this branch of our subject is dismissed, it should be observed that the paterfamilias was answerable for the delicts (or _torts_) of his sons under power. he was similarly liable for the torts of his slaves; but in both cases he originally possessed the singular privilege of tendering the delinquent's person in full satisfaction of the damage. the responsibility thus incurred on behalf of sons, coupled with the mutual incapacity of parent and child under power to sue one another, has seemed to some jurists to be best explained by the assumption of a "unity of person" between the paterfamilias and the filius-familias. in the chapter on successions i shall attempt to show in what sense, and to what extent, this "unity" can be accepted as a reality. i can only say at present that these responsibilities of the paterfamilias, and other legal phenomena which will be discussed hereafter, appear to me to point at certain _duties_ of the primitive patriarchal chieftain which balanced his _rights_. i conceive that, if he disposed absolutely of the persons and fortune of his clansmen, this representative ownership was coextensive with a liability to provide for all members of the brotherhood out of the common fund. the difficulty is to throw ourselves out of our habitual associations sufficiently for conceiving the nature of his obligation. it was not a legal duty, for law had not yet penetrated into the precinct of the family. to call it _moral_ is perhaps to anticipate the ideas belonging to a later stage of mental development; but the expression "moral obligation" is significant enough for our purpose, if we understand by it a duty semi-consciously followed and enforced rather by instinct and habit than by definite sanctions. the patria potestas, in its normal shape, has not been, and, as it seems to me, could not have been, a generally durable institution. the proof of its former universality is therefore incomplete so long as we consider it by itself; but the demonstration may be carried much further by examining other departments of ancient law which depend on it ultimately, but not by a thread of connection visible in all its parts or to all eyes. let us turn for example to kinship, or in other words, to the scale on which the proximity of relatives to each other is calculated in archaic jurisprudence. here again it will be convenient to employ the roman terms, agnatic and cognatic relationship. _cognatic_ relationship is simply the conception of kinship familiar to modern ideas; it is the relationship arising through common descent from the same pair of married persons, whether the descent be traced through males or females. _agnatic_ relationship is something very different: it excludes a number of persons whom we in our day should certainly consider of kin to ourselves, and it includes many more whom we should never reckon among our kindred. it is in truth the connection existing between the members of the family, conceived as it was in the most ancient times. the limits of this connection are far from conterminous with those of modern relationship. cognates then are all those persons who can trace their blood to a single ancestor and ancestress; or, if we take the strict technical meaning of the word in roman law, they are all who trace their blood to the legitimate marriage of a common pair. "cognation" is therefore a relative term, and the degree of connection in blood which it indicates depends on the particular marriage which is selected as the commencement of the calculation. if we begin with the marriage of father and mother, cognation will only express the relationship of brothers and sisters; if we take that of the grandfather and grandmother, then uncles, aunts, and their descendants will also be included in the notion of cognation, and following the same process a larger number of cognates may be continually obtained by choosing the starting point higher and higher up in the line of ascent. all this is easily understood by a modern; but who are the agnates? in the first place, they are all the cognates who trace their connection exclusively through males. a table of cognates is, of course, formed by taking each lineal ancestor in turn and including all his descendants of both sexes in the tabular view; if then, in tracing the various branches of such a genealogical table or tree, we stop whenever we come to the name of a female and pursue that particular branch or ramification no further, all who remain after the descendants of women have been excluded are agnates, and their connection together is agnatic relationship. i dwell a little on the process which is practically followed in separating them from the cognates, because it explains a memorable legal maxim, "mulier est finis familiæ"--a woman is the terminus of the family. a female name closes the branch or twig of the genealogy in which it occurs. none of the descendants of a female are included in the primitive notion of family relationship. if the system of archaic law at which we are looking be one which admits adoption, we must add to the agnate thus obtained all persons, male or female, who have been brought into the family by the artificial extension of its boundaries. but the descendants of such persons will only be agnates, if they satisfy the conditions which have just been described. what then is the reason of this arbitrary inclusion and exclusion? why should a conception of kinship, so elastic as to include strangers brought into the family by adoption, be nevertheless so narrow as to shut out the descendants of a female member? to solve these questions, we must recur to the patria potestas. the foundation of agnation is not the marriage of father and mother, but the authority of the father. all persons are agnatically connected together who are under the same paternal power, or who have been under it, or who might have been under it if their lineal ancestor had lived long enough to exercise his empire. in truth, in the primitive view, relationship is exactly limited by patria potestas. where the potestas begins, kinship begins; and therefore adoptive relatives are among the kindred. where the potestas ends, kinship ends; so that a son emancipated by his father loses all rights of agnation. and here we have the reason why the descendants of females are outside the limits of archaic kinship. if a woman died unmarried, she could have no legitimate descendants. if she married, her children fell under the patria potestas, not of her father, but of her husband, and thus were lost to her own family. it is obvious that the organisation of primitive societies would have been confounded, if men had called themselves relatives of their mother's relatives. the inference would have been that a person might be subject to two distinct patriæ potestates; but distinct patriæ potestates implied distinct jurisdictions, so that anybody amenable to two of them at the same time would have lived under two different dispensations. as long as the family was an imperium in imperio, a community within the commonwealth, governed by its own institutions of which the parent was the source, the limitation of relationship to the agnates was a necessary security against a conflict of laws in the domestic forum. the parental powers proper are extinguished by the death of the parent, but agnation is as it were a mould which retains their imprint after they have ceased to exist. hence comes the interest of agnation for the inquirer into the history of jurisprudence. the powers themselves are discernible in comparatively few monuments of ancient law, but agnatic relationship, which implies their former existence, is discoverable almost everywhere. there are few indigenous bodies of law belonging to communities of the indo-european stock, which do not exhibit peculiarities in the most ancient part of their structure which are clearly referable to agnation. in hindoo law, for example, which is saturated with the primitive notions of family dependency, kinship is entirely agnatic, and i am informed that in hindoo genealogies the names of women are generally omitted altogether. the same view of relationship pervades so much of the laws of the races who overran the roman empire as appears to have really formed part of their primitive usage, and we may suspect that it would have perpetuated itself even more than it has in modern european jurisprudence, if it had not been for the vast influence of the later roman law on modern thought. the prætors early laid hold on cognation as the _natural_ form of kinship, and spared no pains in purifying their system from the older conception. their ideas have descended to us, but still traces of agnation are to be seen in many of the modern rules of succession after death. the exclusion of females and their children from governmental functions, commonly attributed to the usage of the salian franks, has certainly an agnatic origin, being descended from the ancient german rule of succession to allodial property. in agnation too is to be sought the explanation of that extraordinary rule of english law, only recently repealed, which prohibited brothers of the half-blood from succeeding to one another's lands. in the customs of normandy, the rule applies to _uterine_ brothers only, that is, to brothers by the same mother but not by the same father; and, limited in this way, it is a strict deduction from the system of agnation, under which uterine brothers are no relations at all to one another. when it was transplanted to england, the english judges, who had no clue to its principle, interpreted it as a general prohibition against the succession of the half-blood, and extended it to _consanguineous_ brothers, that is to sons of the same father by different wives. in all the literature which enshrines the pretended philosophy of law, there is nothing more curious than the pages of elaborate sophistry in which blackstone attempts to explain and justify the exclusion of the half-blood. it may be shown, i think, that the family, as held together by the patria potestas, is the nidus out of which the entire law of persons has germinated. of all the chapters of that law the most important is that which is concerned with the status of females. it has just been stated that primitive jurisprudence, though it does not allow a woman to communicate any rights of agnation to her descendants, includes herself nevertheless in the agnatic bond. indeed, the relation of a female to the family in which she was born is much stricter, closer, and more durable than that which unites her male kinsmen. we have several times laid down that early law takes notice of families only; this is the same thing as saying that it only takes notice of persons exercising patria potestas, and accordingly the only principle on which it enfranchises a son or grandson at the death of his parent, is a consideration of the capacity inherent in such son or grandson to become himself the head of a new family and the root of a new set of parental powers. but a woman, of course, has no capacity of the kind, and no title accordingly to the liberation which it confers. there is therefore a peculiar contrivance of archaic jurisprudence for retaining her in the bondage of the family for life. this is the institution known to the oldest roman law as the perpetual tutelage of women, under which a female, though relieved from her parent's authority by his decease, continues subject through life to her nearest male relations as her guardians. perpetual guardianship is obviously neither more nor less than an artificial prolongation of the patria potestas, when for other purposes it has been dissolved. in india, the system survives in absolute completeness, and its operation is so strict that a hindoo mother frequently becomes the ward of her own sons. even in europe, the laws of the scandinavian nations respecting women preserved it until quite recently. the invaders of the western empire had it universally among their indigenous usages, and indeed their ideas on the subject of guardianship, in all its forms, were among the most retrogressive of those which they introduced into the western world. but from the mature roman jurisprudence it had entirely disappeared. we should know almost nothing about it, if we had only the compilations of justinian to consult; but the discovery of the manuscript of gaius discloses it to us at a most interesting epoch, just when it had fallen into complete discredit and was verging on extinction. the great jurisconsult himself scouts the popular apology offered for it in the mental inferiority of the female sex, and a considerable part of his volume is taken up with descriptions of the numerous expedients, some of them displaying extraordinary ingenuity, which the roman lawyers had devised for enabling women to defeat the ancient rules. led by their theory of natural law, the jurisconsults had evidently at this time assumed the equality of the sexes as a principle of their code of equity. the restrictions which they attacked were, it is to be observed, restrictions on the disposition of property, for which the assent of the woman's guardians was still formally required. control of her person was apparently quite obsolete. ancient law subordinates the woman to her blood-relations, while a prime phenomenon of modern jurisprudence has been her subordination to her husband. the history of the change is remarkable. it begins far back in the annals of rome. anciently, there were three modes in which marriage might be contracted according to roman usage, one involving a religious solemnity, the other two the observance of certain secular formalities. by the religious marriage or _confarreation_; by the higher form of civil marriage, which was called _coemption_; and by the lower form, which was termed _usus_, the husband acquired a number of rights over the person and property of his wife, which were on the whole in excess of such as are conferred on him in any system of modern jurisprudence. but in what capacity did he acquire them? not as _husband_, but as _father_. by the confarreation, coemption, and usus, the woman passed _in manum viri_, that is, in law she became the _daughter_ of her husband. she was included in his patria potestas. she incurred all the liabilities springing out of it while it subsisted, and surviving it when it had expired. all her property became absolutely his, and she was retained in tutelage after his death to the guardian whom he had appointed by will. these three ancient forms of marriage fell, however, gradually into disuse, so that, at the most splendid period of roman greatness, they had almost entirely given place to a fashion of wedlock--old apparently, but not hitherto considered reputable--which was founded on a modification of the lower form of civil marriage. without explaining the technical mechanism of the institution now generally popular, i may describe it as amounting in law to little more than a temporary deposit of the woman by her family. the rights of the family remained unimpaired, and the lady continued in the tutelage of guardians whom her parents had appointed and whose privileges of control overrode, in many material respects, the inferior authority of her husband. the consequence was that the situation of the roman female, whether married or unmarried, became one of great personal and proprietary independence, for the tendency of the later law, as i have already hinted, was to reduce the power of the guardian to a nullity, while the form of marriage in fashion conferred on the husband no compensating superiority. but christianity tended somewhat from the very first to narrow this remarkable liberty. led at first by justifiable disrelish for the loose practices of the decaying heathen world, but afterwards hurried on by a passion of asceticism, the professors of the new faith looked with disfavour on a marital tie which was in fact the laxest the western world has seen. the latest roman law, so far as it is touched by the constitutions of the christian emperors, bears some marks of a reaction against the liberal doctrines of the great antonine jurisconsults. and the prevalent state of religious sentiment may explain why it is that modern jurisprudence, forged in the furnace of barbarian conquest, and formed by the fusion of roman jurisprudence with patriarchal usage, has absorbed, among its rudiments, much more than usual of those rules concerning the position of women which belong peculiarly to an imperfect civilisation. during the troubled era which begins modern history, and while the laws of the germanic and sclavonic immigrants remained superposed like a separate layer above the roman jurisprudence of their provincial subjects, the women of the dominant races are seen everywhere under various forms of archaic guardianship, and the husband who takes a wife from any family except his own pays a money-price to her relations for the tutelage which they surrender to him. when we move onwards, and the code of the middle ages has been formed by the amalgamation of the two systems, the law relating to women carries the stamp of its double origin. the principle of the roman jurisprudence is so far triumphant that unmarried females are generally (though there are local exceptions to the rule) relieved from the bondage of the family; but the archaic principle of the barbarians has fixed the position of married women, and the husband has drawn to himself in his marital character the powers which had once belonged to his wife's male kindred, the only difference being that he no longer purchases his privileges. at this point therefore the modern law of western and southern europe begins to be distinguished by one of its chief characteristics, the comparative freedom it allows to unmarried women and widows, the heavy disabilities it imposes on wives. it was very long before the subordination entailed on the other sex by marriage was sensibly diminished. the principal and most powerful solvent of the revived barbarism of europe was always the codified jurisprudence of justinian, wherever it was studied with that passionate enthusiasm which it seldom failed to awaken. it covertly but most efficaciously undermined the customs which it pretended merely to interpret. but the chapter of law relating to married women was for the most part read by the light, not of roman, but of canon law, which in no one particular departs so widely from the spirit of the secular jurisprudence as in the view it takes of the relations created by marriage. this was in part inevitable, since no society which preserves any tincture of christian institution is likely to restore to married women the personal liberty conferred on them by the middle roman law, but the proprietary disabilities of married females stand on quite a different basis from their personal incapacities, and it is by keeping alive and consolidating the former that the expositors of the canon law have deeply injured civilisation. there are many vestiges of a struggle between the secular and ecclesiastical principles, but the canon law nearly everywhere prevailed. in some of the french provinces married women, of a rank below nobility, obtained all the powers of dealing with property which roman jurisprudence had allowed, and this local law has been largely followed by the code napoléon; but the state of the scottish law shows that scrupulous deference to the doctrines of the roman jurisconsults did not always extend to mitigating the disabilities of wives. the systems however which are least indulgent to married women are invariably those which have followed the canon law exclusively, or those which, from the lateness of their contact with european civilisation, have never had their archaisms weeded out. the scandinavian laws, harsh till lately to all females, are still remarkable for their severity to wives. and scarcely less stringent in the proprietary incapacities it imposes is the english common law, which borrows far the greatest number of its fundamental principles from the jurisprudence of the canonists. indeed, the part of the common law which prescribes the legal situation of married women may serve to give an englishman clear notions of the great institution which has been the principal subject of this chapter. i do not know how the operation and nature of the ancient patria potestas can be brought so vividly before the mind as by reflecting on the prerogatives attached to the husband by the pure english common law, and by recalling the rigorous consistency with which the view of a complete legal subjection on the part of the wife is carried by it, where it is untouched by equity or statutes, through every department of rights, duties, and remedies. the distance between the eldest and latest roman law on the subject of children under power may be considered as equivalent to the difference between the common law and the jurisprudence of the court of chancery in the rules which they respectively apply to wives. if we were to lose sight of the true origin of guardianship in both its forms and were to employ the common language on these topics, we should find ourselves remarking that, while the tutelage of women is an instance in which systems of archaic law push to an extravagant length the fiction of suspended rights, the rules which they lay down for the guardianship of male orphans are an example of a fault in precisely the opposite direction. all such systems terminate the tutelage of males at an extraordinary early period. under the ancient roman law, which may be taken as their type, the son who was delivered from patria potestas by the death of his father or grandfather remained under guardianship till an epoch which for general purposes may be described as arriving with his fifteenth year; but the arrival of that epoch placed him at once in the full enjoyment of personal and proprietary independence. the period of minority appears therefore to have been as unreasonably short as the duration of the disabilities of women was preposterously long. but, in point of fact, there was no element either of excess or of shortcoming in the circumstances which gave their original form to the two kinds of guardianship. neither the one nor the other of them was based on the slightest consideration of public or private convenience. the guardianship of male orphans was no more designed originally to shield them till the arrival of years of discretion than the tutelage of women was intended to protect the other sex against its own feebleness. the reason why the death of the father delivered the son from the bondage of the family was the son's capacity for becoming himself the head of a new family and the founder of a new patria potestas; no such capacity was possessed by the woman and therefore she was _never_ enfranchised. accordingly the guardianship of male orphans was a contrivance for keeping alive the semblance of subordination to the family of the parent, up to the time when the child was supposed capable of becoming a parent himself. it was a prolongation of the patria potestas up to the period of bare physical manhood. it ended with puberty, for the rigour of the theory demanded that it should do so. inasmuch, however, as it did not profess to conduct the orphan ward to the age of intellectual maturity or fitness for affairs, it was quite unequal to the purposes of general convenience; and this the romans seem to have discovered at a very early stage of their social progress. one of the very oldest monuments of roman legislation is the _lex lætoria_ or _plætoria_ which placed all free males who were of full years and rights under the temporary control of a new class of guardians, called _curatores_, whose sanction was required to validate their acts or contracts. the twenty-sixth year of the young man's age was the limit of this statutory supervision; and it is exclusively with reference to the age of twenty-five that the terms "majority" and "minority" are employed in roman law. _pupilage_ or _wardship_ in modern jurisprudence had adjusted itself with tolerable regularity to the simple principle of protection to the immaturity of youth both bodily and mental. it has its natural termination with years of discretion. but for protection against physical weakness and for protection against intellectual incapacity, the romans looked to two different institutions, distinct both in theory and design. the ideas attendant on both are combined in the modern idea of guardianship. the law of persons contains but one other chapter which can be usefully cited for our present purpose. the legal rules by which systems of nature jurisprudence regulate the connection of _master and slave_, present no very distinct traces of the original condition common to ancient societies. but there are reasons for this exception. there seems to be something in the institution of slavery which has at all times either shocked or perplexed mankind, however little habituated to reflection, and however slightly advanced in the cultivation of its moral instincts. the compunction which ancient communities almost unconsciously experienced appears to have always resulted in the adoption of some imaginary principle upon which a defence, or at least a rationale, of slavery could be plausibly founded. very early in their history the greeks explained the institution as grounded on the intellectual inferiority of certain races and their consequent natural aptitude for the servile condition. the romans, in a spirit equally characteristic, derived it from a supposed agreement between the victor and the vanquished in which the first stipulated for the perpetual services of his foe; and the other gained in consideration the life which he had legitimately forfeited. such theories were not only unsound but plainly unequal to the case for which they affected to account. still they exercised powerful influence in many ways. they satisfied the conscience of the master. they perpetuated and probably increased the debasement of the slave. and they naturally tended to put out of sight the relation in which servitude had originally stood to the rest of the domestic system. the relation, though not clearly exhibited, is casually indicated in many parts of primitive law, and more particularly in the typical system--that of ancient rome. much industry and some learning have been bestowed in the united states of america on the question whether the slave was in the early stages of society a recognised member of the family. there is a sense in which an affirmative answer must certainly be given. it is clear, from the testimony both of ancient law and of many primeval histories, that the slave might under certain conditions be made the heir, or universal successor, of the master, and this significant faculty, as i shall explain in the chapter on succession, implies that the government and representation of the family might, in a particular state of circumstances, devolve on the bondman. it seems, however, to be assumed in the american arguments on the subject that, if we allow slavery to have been a primitive family institution, the acknowledgment is pregnant with an admission of the moral defensibility of negro-servitude at the present moment. what then is meant by saying that the slave was originally included in the family? not that his situation may not have been the fruit of the coarsest motives which can actuate man. the simple wish to use the bodily powers of another person as a means of ministering to one's own ease or pleasure is doubtless the foundation of slavery, and as old as human nature. when we speak of the slave as anciently included in the family, we intend to assert nothing as to the motives of those who brought him into it or kept him there; we merely imply that the tie which bound him to his master was regarded as one of the same general character with that which united every other member of the group to its chieftain. this consequence is, in fact, carried in the general assertion already made that the primitive ideas of mankind were unequal to comprehending any basis of the connection _inter se_ of individuals, apart from the relations of family. the family consisted primarily of those who belonged to it by consanguinity and next of those who had been engrafted on it by adoption; but there was still a third class of persons who were only joined to it by common subjection to its head, and these were the slaves. the born and the adopted subjects of the chief were raised above the slave by the certainty that in the ordinary course of events they would be relieved from bondage and entitled to exercise powers of their own; but that the inferiority of the slave was not such as to place him outside the pale of the family, or such as to degrade him to the footing of inanimate property, is clearly proved, i think, by the many traces which remain of his ancient capacity for inheritance in the last resort. it would, of course, be unsafe in the highest degree to hazard conjectures how far the lot of the slave was mitigated, in the beginnings of society, by having a definite place reserved to him in the empire of the father. it is, perhaps, more probable that the son was practically assimilated to the slave, than that the slave shared any of the tenderness which in later times was shown to the son. but it may be asserted with some confidence of advanced and matured codes that, wherever servitude is sanctioned, the slave has uniformly greater advantages under systems which preserve some memento of his earlier condition than under those which have adopted some other theory of his civil degradation. the point of view from which jurisprudence regards the slave is always of great importance to him. the roman law was arrested in its growing tendency to look upon him more and more as an article of property by the theory of the law of nature; and hence it is that, wherever servitude is sanctioned by institutions which have been deeply affected by roman jurisprudence, the servile condition is never intolerably wretched. there is a great deal of evidence that in those american states which have taken the highly romanised code of louisiana as the basis of their jurisprudence, the lot and prospects of the negro-population are better in many material respects than under institutions founded on the english common law, which, as recently interpreted, has no true place for the slave, and can only therefore regard him as a chattel. we have now examined all parts of the ancient law of persons which fall within the scope of this treatise, and the result of the inquiry is, i trust, to give additional definiteness and precision to our view of the infancy of jurisprudence. the civil laws of states first make their appearance as the themistes of a patriarchal sovereign, and we can now see that these themistes are probably only a developed form of the irresponsible commands which, in a still earlier condition of the race, the head of each isolated household may have addressed to his wives, his children, and his slaves. but, even after the state has been organised, the laws have still an extremely limited application. whether they retain their primitive character as themistes, or whether they advance to the condition of customs or codified texts, they are binding not on individuals, but on families. ancient jurisprudence, if a perhaps deceptive comparison may be employed, may be likened to international law, filling nothing, as it were, excepting the interstices between the great groups which are the atoms of society. in a community so situated, the legislation of assemblies and the jurisdiction of courts reaches only to the heads of families, and to every other individual the rule of conduct is the law of his home, of which his parent is the legislator. but the sphere of civil law, small at first, tends steadily to enlarge itself. the agents of legal change, fictions, equity, and legislation, are brought in turn to bear on the primeval institutions, and at every point of the progress, a greater number of personal rights and a larger amount of property are removed from the domestic forum to the cognisance of the public tribunals. the ordinances of the government obtain gradually the same efficacy in private concerns as in matters of state, and are no longer liable to be overridden by the behests of a despot enthroned by each hearthstone. we have in the annals of roman law a nearly complete history of the crumbling away of an archaic system, and of the formation of new institutions from the recombined materials, institutions some of which descended unimpaired to the modern world, while others, destroyed or corrupted by contact with barbarism in the dark ages, had again to be recovered by mankind. when we leave this jurisprudence at the epoch of its final reconstruction by justinian, few traces of archaism can be discovered in any part of it except in the single article of the extensive powers still reserved to the living parent. everywhere else principles of convenience, or of symmetry, or of simplification--new principles at any rate--have usurped the authority of the jejune considerations which satisfied the conscience of ancient times. everywhere a new morality has displaced the canons of conduct and the reasons of acquiescence which were in unison with the ancient usages, because in fact they were born of them. the movement of the progressive societies has been uniform in one respect. through all its course it has been distinguished by the gradual dissolution of family dependency and the growth of individual obligation in its place. the individual is steadily substituted for the family, as the unit of which civil laws take account. the advance has been accomplished at varying rates of celerity, and there are societies not absolutely stationary in which the collapse of the ancient organisation can only be perceived by careful study of the phenomena they present. but, whatever its pace, the change has not been subject to reaction or recoil, and apparent retardations will be found to have been occasioned through the absorption of archaic ideas and customs from some entirely foreign source. nor is it difficult to see what is the tie between man and man which replaces by degrees those forms of reciprocity in rights and duties which have their origin in the family. it is contract. starting, as from one terminus of history, from a condition of society in which all the relations of persons are summed up in the relations of family, we seem to have steadily moved towards a phase of social order in which all these relations arise from the free agreement of individuals. in western europe the progress achieved in this direction has been considerable. thus the status of the slave has disappeared--it has been superseded by the contractual relation of the servant to his master. the status of the female under tutelage, if the tutelage be understood of persons other than her husband, has also ceased to exist; from her coming of age to her marriage all the relations she may form are relations of contract. so too the status of the son under power has no true place in law of modern european societies. if any civil obligation binds together the parent and the child of full age, it is one to which only contract gives its legal validity. the apparent exceptions are exceptions of that stamp which illustrate the rule. the child before years of discretion, the orphan under guardianship, the adjudged lunatic, have all their capacities and incapacities regulated by the law of persons. but why? the reason is differently expressed in the conventional language of different systems, but in substance it is stated to the same effect by all. the great majority of jurists are constant to the principle that the classes of persons just mentioned are subject to extrinsic control on the single ground that they do not possess the faculty of forming a judgment on their own interests; in other words, that they are wanting in the first essential of an engagement by contract. the word status may be usefully employed to construct a formula expressing the law of progress thus indicated, which, whatever be its value, seems to me to be sufficiently ascertained. all the forms of status taken notice of in the law of persons were derived from, and to some extent are still coloured by, the powers and privileges anciently residing in the family. if then we employ status, agreeably with the usage of the best writers, to signify these personal conditions only, and avoid applying the term to such conditions as are the immediate or remote result of agreement, we may say that the movement of the progressive societies has hitherto been a movement _from status to contract_. chapter vi the early history of testamentary succession if an attempt were made to demonstrate in england the superiority of the historical method of investigation to the modes of inquiry concerning jurisprudence which are in fashion among us, no department of law would better serve as an example than testaments or wills. its capabilities it owes to its great length and great continuity. at the beginning of its history we find ourselves in the very infancy of the social state, surrounded by conceptions which it requires some effort of mind to realise in their ancient form; while here, at the other extremity of its line of progress, we are in the midst of legal notions which are nothing more than those same conceptions disguised by the phraseology and by the habits of thought which belong to modern times, and exhibiting therefore a difficulty of another kind, the difficulty of believing that ideas which form part of our everyday mental stock can really stand in need of analysis and examination. the growth of the law of wills between these extreme points can be traced with remarkable distinctness. it was much less interrupted at the epoch of the birth of feudalism, than the history of most other branches of law. it is, indeed, true that, as regards all provinces of jurisprudence, the break caused by the division between ancient and modern history, or in other words by the dissolution of the roman empire, has been very greatly exaggerated. indolence has disinclined many writers to be at the pains of looking for threads of connection entangled and obscured by the confusions of six troubled centuries, while other inquirers, not naturally deficient in patience and industry, have been misled by idle pride in the legal system of their country, and by consequent unwillingness to confess its obligations to the jurisprudence of rome. but these unfavourable influences have had comparatively little effect on the province of testamentary law. the barbarians were confessedly strangers to any such conception as that of a will. the best authorities agree that there is no trace of it in those parts of their written codes which comprise the customs practised by them in their original seats, and in their subsequent settlements on the edge of the roman empire. but soon after they became mixed with the population of the roman provinces they appropriated from the imperial jurisprudence the conception of a will, at first in part, and afterwards in all its integrity. the influence of the church had much to do with this rapid assimilation. the ecclesiastical power had very early succeeded to those privileges of custody and registration of testaments which several of the heathen temples had enjoyed; and even thus early it was almost exclusively to private bequests that the religious foundations owed their temporal possessions. hence it is that the decrees of the earliest provincial councils perpetually contain anathemas against those who deny the sanctity of wills. here, in england, church influence was certainly chief among the causes which by universal acknowledgment have prevented that discontinuity in the history of testamentary law, which is sometimes believed to exist in the history of other provinces of jurisprudence. the jurisdiction over one class of wills was delegated to the ecclesiastical courts, which applied to them, though not always intelligently, the principles of roman jurisprudence; and, though neither the courts of common law nor the court of chancery owned any positive obligation to follow the ecclesiastical tribunals, they could not escape the potent influence of a system of settled rules in course of application by their side. the english law of testamentary succession to personalty has become a modified form of the dispensation under which the inheritances of roman citizens were administered. it is not difficult to point out the extreme difference of the conclusions forced on us by the historical treatment of the subject from those to which we are conducted when, without the help of history, we merely strive to analyse our _primâ facie_ impressions. i suppose there is nobody who, starting from the popular or even the legal conception of a will, would not imagine that certain qualities are necessarily attached to it. he would say, for example, that a will necessarily takes effect _at death only_--that it is _secret_, not known as a matter of course to persons taking interests under its provisions--that it is _revocable_, _i.e._ always capable of being superseded by a new act of testation. yet i shall be able to show that there was a time when none of these characteristics belonged to a will. the testaments from which our wills are directly descended at first took effect immediately on their execution; they were not secret; they were not revocable. few legal agencies are, in fact, the fruit of more complex historical agencies than that by which a man's written intentions control the posthumous disposition of his goods. testaments very slowly and gradually gathered round them the qualities i have mentioned; and they did this from causes and under pressure of events which may be called casual, or which at any rate have no interest for us at present, except so far as they have affected the history of law. at a time when legal theories were more abundant than at present--theories which, it is true, were for the most part gratuitous and premature enough, but which nevertheless rescued jurisprudence from that worse and more ignoble condition, not unknown to ourselves, in which nothing like a generalisation is aspired to, and law is regarded as a mere empirical pursuit--it was the fashion to explain the ready and apparently intuitive perception which we have of certain qualities in a will, by saying that they were natural to it, or, as the phrase would run in full, attached to it by the law of nature. nobody, i imagine, would affect to maintain such a doctrine, when once it was ascertained that all these characteristics had their origin within historical memory; at the same time, vestiges of the theory of which the doctrine is an offshoot, linger in forms of expression which we all of us use and perhaps scarcely know how to dispense with. i may illustrate this by mentioning a position common in the legal literature of the seventeenth century. the jurists of that period very commonly assert that the power of testation itself is of natural law, that it is a right conferred by the law of nature. their teaching, though all persons may not at once see the connection, is in substance followed by those who affirm that the right of dictating or controlling the posthumous disposal of property is a necessary or natural consequence of the proprietary rights themselves. and every student of technical jurisprudence must have come across the same view, clothed in the language of a rather different school, which, in its rationale of this department of law, treats succession _ex testamento_ as the mode of devolution which the property of deceased persons ought primarily to follow, and then proceeds to account for succession _ab intestato_ as the incidental provision of the lawgiver for the discharge of a function which was only left unperformed through the neglect or misfortune of the deceased proprietor. these opinions are only expanded forms of the more compendious doctrine that testamentary disposition is an institution of the law of nature. it is certainly never quite safe to pronounce dogmatically as to the range of association embraced by modern minds, when they reflect on nature and her law; but i believe that most persons, who affirm that the testamentary power is of natural law, may be taken to imply either that, as a matter of fact, it is universal, or that nations are prompted to sanction it by an original instinct and impulse. with respect to the first of these positions, i think that, when explicitly set forth, it can never be seriously contended for in an age which has seen the severe restraints imposed on the testamentary power by the _code napoléon_, and has witnessed the steady multiplication of systems for which the french codes have served as a model. to the second assertion we must object that it is contrary to the best-ascertained facts in the early history of law, and i venture to affirm generally that, in all indigenous societies, a condition of jurisprudence in which testamentary privileges are _not_ allowed, or rather not contemplated, has preceded that later stage of legal development in which the mere will of the proprietor is permitted under more or less of restriction to override the claims of his kindred in blood. the conception of a will or testament cannot be considered by itself. it is a member, and not the first, of a series of conceptions. in itself a will is simply the instrument by which the intention of the testator is declared. it must be clear, i think, that before such an instrument takes its turn for discussion, there are several preliminary points to be examined--as, for example, what is it, what sort of right or interest, which passes from a dead man on his decease? to whom and in what form does it pass? and how came it that the dead were allowed to control the posthumous disposition of their property? thrown into technical language, the dependence of the various conceptions which contribute to the notion of a will is thus expressed. a will or testament is an instrument by which the devolution of an inheritance is prescribed. inheritance is a form of universal succession. a universal succession is a succession to a _universitas juris_, or university of rights and duties. inverting this order we have therefore to inquire what is a _universitas juris_; what is a universal succession; what is the form of universal succession which is called an inheritance? and there are also two further questions, independent to some extent of the points i have mooted, but demanding solution before the subject of wills can be exhausted. these are, how came an inheritance to be controlled in any case by the testator's volition, and what is the nature of the instrument by which it came to be controlled? the first question relates to the _universitas juris_; that is, a university (or bundle) of rights and duties. a _universitas juris_ is a collection of rights and duties united by the single circumstance of their having belonged at one time to some one person. it is, as it were, the legal clothing of some given individual. it is not formed by grouping together _any_ rights and _any_ duties. it can only be constituted by taking all the rights and all the duties of a particular person. the tie which so connects a number of rights of property, rights of way, rights to legacies, duties of specific performance, debts, obligations to compensate wrongs--which so connects all these legal privileges and duties together as to constitute them a _universitas juris_, is the _fact_ of their having attached to some individual capable of exercising them. without this _fact_ there is no university of rights and duties. the expression _universitas juris_ is not classical, but for the notion jurisprudence is exclusively indebted to roman law; nor is it at all difficult to seize. we must endeavour to collect under one conception the whole set of legal relations in which each one of us stands to the rest of the world. these, whatever be their character and composition, make up together a _universitas juris_; and there is but little danger of mistake in forming the notion, if we are only careful to remember that duties enter into it quite as much as rights. our duties may overbalance our rights. a man may owe more than he is worth, and therefore if a money value is set on his collective legal relations he may be what is called insolvent. but for all that the entire group of rights and duties which centres in him is not the less a "juris universitas." we come next to a "universal succession." a universal succession is a succession to a _universitas juris_. it occurs when one man is invested with the legal clothing of another, becoming at the same moment subject to all his liabilities and entitled to all his rights. in order that the universal succession may be true and perfect, the devolution must take place _uno ictu_, as the jurists phrase it. it is of course possible to conceive one man acquiring the whole of the rights and duties of another at different periods, as for example by successive purchases; or he might acquire them in different capacities, part as heir, part as purchaser, part as legatee. but though the group of rights and duties thus made up should in fact amount to the whole legal personality of a particular individual, the acquisition would not be a universal succession. in order that there may be a true universal succession, the transmission must be such as to pass the whole aggregate of rights and duties at the _same_ moment and in virtue of the _same_ legal capacity in the recipient. the notion of a universal succession, like that of a juris universitas, is permanent in jurisprudence, though in the english legal system it is obscured by the great variety of capacities in which rights are acquired, and, above all, by the distinction between the two great provinces of english property, "realty" and "personalty." the succession of an assignee in bankruptcy to the entire property of the bankrupt is, however, a universal succession, though as the assignee only pays debts to the extent of the assets, this is only a modified form of the primary notion. were it common among us for persons to take assignments of _all_ a man's property on condition of paying _all_ his debts, such transfers would exactly resemble the universal successions known to the oldest roman law. when a roman citizen _adrogated_ a son, _i.e._ took a man, not already under patria potestas, as his adoptive child, he succeeded _universally_ to the adoptive child's estate, _i.e._ he took all the property and became liable for all the obligations. several other forms of universal succession appear in the primitive roman law, but infinitely the most important and the most durable of all was that one with which we are more immediately concerned, hæreditas or inheritance. inheritance was a universal succession occurring at a death. the universal successor was hæres or heir. he stepped at once into all the rights and all the duties of the dead man. he was instantly clothed with his entire legal person, and i need scarcely add that the special character of the hæres remained the same, whether he was named by a will or whether he took on an intestacy. the term hæres is no more emphatically used of the intestate than of the testamentary heir, for the manner in which a man became hæres had nothing to do with the legal character he sustained. the dead man's universal successor, however he became so, whether by will or by intestacy, was his heir. but the heir was not necessarily a single person. a group of persons considered in law as a single unit, might succeed as _co-heirs_ to the inheritance. let me now quote the usual roman definition of an inheritance. the reader will be in a position to appreciate the full force of the separate terms. _hæreditas est successio in universum jus quod defunctus habuit_ ("an inheritance is a succession to the entire legal position of a deceased man"). the notion was that, though the physical person of the deceased had perished, his legal personality survived and descended unimpaired on his heir or co-heirs, in whom his identity (so far as the law was concerned) was continued. our own law, in constituting the executor or administrator the representative of the deceased to the extent of his personal assets, may serve as an illustration of the theory from which it emanated, but, although it illustrates, it does not explain it. the view of even the later roman law required a closeness of correspondence between the position of the deceased and of his heir which is no feature of an english representation; and in the primitive jurisprudence everything turned on the continuity of succession. unless provision was made in the will for the instant devolution of the testator's rights and duties on the heir or co-heirs, the testament lost all its effect. in modern testamentary jurisprudence, as in the later roman law, the object of first importance is the execution of the testator's intentions. in the ancient law of rome the subject of corresponding carefulness was the bestowal of the universal succession. one of these rules seems to our eyes a principle dictated by common sense, while the other looks very much like an idle crotchet. yet that without the second of them the first would never have come into being is as certain as any proposition of the kind can be. in order to solve this apparent paradox, and to bring into greater clearness the train of ideas which i have been endeavouring to indicate, i must borrow the results of the inquiry which was attempted in the earlier portion of the preceding chapter. we saw one peculiarity invariably distinguishing the infancy of society. men are regarded and treated, not as individuals, but always as members of a particular group. everybody is first a citizen, and then, as a citizen, he is a member of his order--of an aristocracy or a democracy, of an order of patricians or plebeians; or, in those societies which an unhappy fate has afflicted with a special perversion in their course of development, of a caste. next, he is a member of a gens, house, or clan; and lastly, he is a member of his _family_. this last was the narrowest and most personal relation in which he stood; nor, paradoxical as it may seem, was he ever regarded as _himself_, as a distinct individual. his individuality was swallowed up in his family. i repeat the definition of a primitive society given before. it has for its units, not individuals, but groups of men united by the reality or the fiction of blood-relationship. it is in the peculiarities of an undeveloped society that we seize the first trace of a universal succession. contrasted with the organisation of a modern state, the commonwealths of primitive times may be fairly described as consisting of a number of little despotic governments, each perfectly distinct from the rest, each absolutely controlled by the prerogative of a single monarch. but though the patriarch, for we must not yet call him the pater-familias, had rights thus extensive, it is impossible to doubt that he lay under an equal amplitude of obligations. if he governed the family, it was for its behoof. if he was lord of its possessions, he held them as trustee for his children and kindred. he had no privilege or position distinct from that conferred on him by his relation to the petty commonwealth which he governed. the family, in fact, was a corporation; and he was its representative or, we might almost say, its public officer. he enjoyed rights and stood under duties, but the rights and the duties were, in the contemplation of his fellow-citizens and in the eye of the law, quite as much those of the collective body as his own. let us consider for a moment the effect which would be produced by the death of such a representative. in the eye of the law, in the view of the civil magistrate, the demise of the domestic authority would be a perfectly immaterial event. the person representing the collective body of the family and primarily responsible to municipal jurisdiction would bear a different name; and that would be all. the rights and obligations which attached to the deceased head of the house would attach, without breach of continuity, to his successor; for, in point of fact, they would be the rights and obligations of the family, and the family had the distinctive characteristic of a corporation--that it never died. creditors would have the same remedies against the new chieftain as against the old, for the liability being that of the still existing family would be absolutely unchanged. all rights available to the family would be as available after the demise of the headship as before it--except that the corporation would be obliged--if indeed language so precise and technical can be properly used of these early times--would be obliged to _sue_ under a slightly modified name. the history of jurisprudence must be followed in its whole course, if we are to understand how gradually and tardily society dissolved itself into the component atoms of which it is now constituted--by what insensible gradations the relation of man to man substituted itself for the relation of the individual to his family and of families to each other. the point now to be attended to is that even when the revolution had apparently quite accomplished itself, even when the magistrate had in great measure assumed the place of the pater-familias, and the civil tribunal substituted itself for the domestic forum, nevertheless the whole scheme of rights and duties administered by the judicial authorities remained shaped by the influence of the obsolete privileges and coloured in every part by their reflection. there seems little question that the devolution of the universitas juris, so strenuously insisted upon by the roman law as the first condition of a testamentary or intestate succession, was a feature of the older form of society which men's minds had been unable to dissociate from the new, though with that newer phase it had no true or proper connection. it seems, in truth, that the prolongation of a man's legal existence in his heir, or in a group of co-heirs, is neither more nor less than a characteristic of _the family_ transferred by a fiction to _the individual_. succession in corporations is necessarily universal, and the family was a corporation. corporations never die. the decease of individual members makes no difference to the collective existence of the aggregate body, and does not in any way affect its legal incidents, its faculties or liabilities. now in the idea of a roman universal succession all these qualities of a corporation seem to have been transferred to the individual citizen. his physical death is allowed to exercise no effect on the legal position which he filled, apparently on the principle that that position is to be adjusted as closely as possible to the analogies of a family, which, in its corporate character, was not of course liable to physical extinction. i observe that not a few continental jurists have much difficulty in comprehending the nature of the connection between the conceptions blended in a universal succession, and there is perhaps no topic in the philosophy of jurisprudence on which their speculations, as a general rule, possess so little value. but the student of english law ought to be in no danger of stumbling at the analysis of the idea which we are examining. much light is cast upon it by a fiction in our own system with which all lawyers are familiar. english lawyers classify corporations as corporations aggregate and corporations sole. a corporation aggregate is a true corporation, but a corporation sole is an individual, being a member of a series of individuals, who is invested by a fiction with the qualities of a corporation. i need hardly cite the king or the parson of a parish as instances of corporations sole. the capacity or office is here considered apart from the particular person who from time to time may occupy it, and, this capacity being perpetual, the series of individuals who fill it are clothed with the leading attribute of corporations--perpetuity. now in the older theory of roman law the individual bore to the family precisely the same relation which in the rationale of english jurisprudence a corporation sole bears to a corporation aggregate. the derivation and association of ideas are exactly the same. in fact, if we say to ourselves that for purposes of roman testamentary jurisprudence each individual citizen was a corporation sole, we shall not only realise the full conception of an inheritance, but have constantly at command the clue to the assumption in which it originated. it is an axiom with us that the king never dies, being a corporation sole. his capacities are instantly filled by his successor, and the continuity of dominion is not deemed to have been interrupted. with the romans it seemed an equally simple and natural process, to eliminate the fact of death from the devolution of rights and obligations. the testator lived on in his heir or in the group of his co-heirs. he was in law the same person with them, and if any one in his testamentary dispositions had even constructively violated the principle which united his actual and his posthumous existence, the law rejected the defective instrument, and gave the inheritance to the kindred in blood, whose capacity to fulfil the conditions of heirship was conferred on them by the law itself, and not by any document which by possibility might be erroneously framed. when a roman citizen died intestate or leaving no valid will, his descendants or kindred became his heirs according to a scale which will be presently described. the person or class of persons who succeeded did not simply _represent_ the deceased, but, in conformity with the theory just delineated, they _continued_ his civil life, his legal existence. the same results followed when the order of succession was determined by a will, but the theory of the identity between the dead man and his heirs was certainly much older than any form of testament or phase of testamentary jurisprudence. this indeed is the proper moment for suggesting a doubt which will press on us with greater force the further we plumb the depths of this subject,--whether _wills_ would ever have come into being at all if it had not been for these remarkable ideas connected with universal succession. testamentary law is the application of a principle which may be explained on a variety of philosophical hypotheses as plausible as they are gratuitous; it is interwoven with every part of modern society, and it is defensible on the broadest grounds of general expediency. but the warning can never be too often repeated, that the grand source of mistake in questions of jurisprudence is the impression that those reasons which actuate us at the present moment, in the maintenance of an existing institution, have necessarily anything in common with the sentiment in which the institution originated. it is certain that, in the old roman law of inheritance, the notion of a will or testament is inextricably mixed up, i might almost say confounded, with the theory of a man's posthumous existence in the person of his heir. the conception of a universal succession, firmly as it has taken root in jurisprudence, has not occurred spontaneously to the framers of every body of laws. wherever it is now found, it may be shown to have descended from roman law; and with it have come down a host of legal rules on the subject of testaments and testamentary gifts, which modern practitioners apply without discerning their relation to the parent theory. but, in the pure roman jurisprudence, the principle that a man lives on in his heir--the elimination, if we may so speak, of the fact of death--is too obviously for mistake the centre round which the whole law of testamentary and intestate succession is circling. the unflinching sternness of the roman law in enforcing compliance with the governing theory would in itself suggest that the theory grew out of something in the primitive constitution of roman society; but we may push the proof a good way beyond the presumption. it happens that several technical expressions, dating from the earliest institution of wills at rome, have been accidentally preserved to us. we have in gaius the formula of investiture by which the universal successor was created. we have the ancient name by which the person afterwards called heir was at first designated. we have further the text of the celebrated clause in the twelve tables by which the testamentary power was expressly recognised, and the clauses regulating intestate succession have also been preserved. all these archaic phrases have one salient peculiarity. they indicate that what passed from the testator to the heir was the _family_, that is, the aggregate of rights and duties contained in the patria potestas and growing out of it. the material property is in three instances not mentioned at all; in two others, it is visibly named as an adjunct or appendage of the family. the original will or testament was therefore an instrument, or (for it was probably not at first in writing) a proceeding, by which the devolution of the _family_ was regulated. it was a mode of declaring who was to have the chieftainship, in succession to the testator. when wills are understood to have this for their original object, we see at once how it is that they came to be connected with one of the most curious relics of ancient religion and law, the _sacra_, or family rites. these _sacra_ were the roman form of an institution which shows itself wherever society has not wholly shaken itself free from its primitive clothing. they are the sacrifices and ceremonies by which the brotherhood of the family is commemorated, the pledge and the witness of its perpetuity. whatever be their nature,--whether it be true or not that in all cases they are the worship of some mythical ancestor,--they are everywhere employed to attest the sacredness of the family-relation; and therefore they acquire prominent significance and importance, whenever the continuous existence of the family is endangered by a change in the person of its chief. accordingly we hear most about them in connection with demises of domestic sovereignty. among the hindoos, the right to inherit a dead man's property is exactly co-extensive with the duty of performing his obsequies. if the rites are not properly performed or not performed by the proper person, no relation is considered as established between the deceased and anybody surviving him; the law of succession does not apply, and nobody can inherit the property. every great event in the life of a hindoo seems to be regarded as leading up to and bearing upon those solemnities. if he marries, it is to have children who may celebrate them after his death; if he has no children, he lies under the strongest obligation to adopt them from another family, "with a view," writes the hindoo doctor, "to the funeral cake, the water, and the solemn sacrifice." the sphere preserved to the roman _sacra_ in the time of cicero, was not less in extent. it embraced inheritances and adoptions. no adoption was allowed to take place without due provision for the _sacra_ of the family from which the adoptive son was transferred, and no testament was allowed to distribute an inheritance without a strict apportionment of the expenses of these ceremonies among the different co-heirs. the differences between the roman law at this epoch, when we obtain our last glimpse of the _sacra_, and the existing hindoo system, are most instructive. among the hindoos, the religious element in law has acquired a complete predominance. family sacrifices have become the keystone of all the law of persons and much of the law of things. they have even received a monstrous extension, for it is a plausible opinion that the self-immolation of the widow at her husband's funeral, a practice continued to historical times by the hindoos, and commemorated in the traditions of several indo-european races, was an addition grafted on the primitive _sacra_, under the influence of the impression, which always accompanies the idea of sacrifice, that human blood is the most precious of all oblations. with the romans, on the contrary, the legal obligation and the religious duty have ceased to be blended. the necessity of solemnising the _sacra_ forms no part of the theory of civil law, but they are under the separate jurisdiction of the college of pontiffs. the letters of cicero to atticus, which are full of allusions to them, leave no doubt that they constituted an intolerable burden on inheritances; but the point of development at which law breaks away from religion has been passed, and we are prepared for their entire disappearance from the later jurisprudence. in hindoo law there is no such thing as a true will. the place filled by wills is occupied by adoptions. we can now see the relation of the testamentary power to the faculty of adoption, and the reason why the exercise of either of them could call up a peculiar solicitude for the performance of the _sacra_. both a will and an adoption threaten a distortion of the ordinary course of family descent, but they are obviously contrivances for preventing the descent being wholly interrupted, when there is no succession of kindred to carry it on. of the two expedients adoption, the factitious creation of blood-relationship, is the only one which has suggested itself to the greater part of archaic societies. the hindoos have indeed advanced one point on what was doubtless the antique practice, by allowing the widow to adopt when the father has neglected to do so, and there are in the local customs of bengal some faint traces of the testamentary powers. but to the romans belongs pre-eminently the credit of inventing the will, the institution which, next to the contract, has exercised the greatest influence in transforming human society. we must be careful not to attribute to it in its earliest shape the functions which have attended it in more recent times. it was at first, not a mode of distributing a dead man's goods, but one among several ways of transferring the representation of the household to a new chief. the goods descend no doubt to the heir, but that is only because the government of the family carries with it in its devolution the power of disposing of the common stock. we are very far as yet from that stage in the history of wills in which they become powerful instruments in modifying society through the stimulus they give to the circulation of property and the plasticity they produce in proprietary rights. no such consequences as these appear in fact to have been associated with the testamentary power even by the latest roman lawyers. it will be found that wills were never looked upon in the roman community as a contrivance for parting property and the family, or for creating a variety of miscellaneous interests, but rather as a means of making a better provision for the members of a household than could be secured through the rules of intestate succession. we may suspect indeed that the associations of a roman with the practice of will-making were extremely different from those familiar to us nowadays. the habit of regarding adoption and testation as modes of continuing the family cannot but have had something to do with the singular laxity of roman notions as to the inheritance of sovereignty. it is impossible not to see that the succession of the early roman emperors to each other was considered reasonably regular, and that, in spite of all that had occurred, no absurdity attached to the pretension of such princes as theodosius or justinian to style themselves cæsar and augustus. when the phenomena of primitive societies emerge into light, it seems impossible to dispute a proposition which the jurists of the seventeenth century considered doubtful, that intestate inheritance is a more ancient institution than testamentary succession. as soon as this is settled, a question of much interest suggests itself, how and under what conditions were the directions of a will first allowed to regulate the devolution of authority over the household, and consequently the posthumous distribution of property. the difficulty of deciding the point arises from the rarity of testamentary power in archaic communities. it is doubtful whether a true power of testation was known to any original society except the roman. rudimentary forms of it occur here and there, but most of them are not exempt from the suspicion of a roman origin. the athenian will was, no doubt, indigenous, but then, as will appear presently, it was only an inchoate testament. as to the wills which are sanctioned by the bodies of law which have descended to us as the codes of the barbarian conquerors of imperial rome, they are almost certainly roman. the most penetrating german criticism has recently been directed to these _leges barbarorum_, the great object of investigation being to detach those portions of each system which formed the customs of the tribe in its original home from the adventitious ingredients which were borrowed from the laws of the romans. in the course of this process, one result has invariably disclosed itself, that the ancient nucleus of the code contains no trace of a will. whatever testamentary law exists, has been taken from roman jurisprudence. similarly, the rudimentary testament which (as i am informed) the rabbinical jewish law provides for, has been attributed to contact with the romans. the only form of testament, not belonging to a roman or hellenic society, which can reasonably be supposed indigenous, is that recognised by the usages of the province of bengal; and the testament of bengal is only a rudimentary will. the evidence, however, such as it is, seems to point to the conclusion that testaments are at first only allowed to take effect on failure of the persons entitled to have the inheritance by right of blood genuine or fictitious. thus, when athenian citizens were empowered for the first time by the laws of solon to execute testaments, they were forbidden to disinherit their direct male descendants. so, too, the will of bengal is only permitted to govern the succession so far as it is consistent with certain overriding claims of the family. again, the original institutions of the jews having provided nowhere for the privileges of testatorship, the later rabbinical jurisprudence, which pretends to supply the _casus omissi_ of the mosaic law, allows the power of testation to attach when all the kindred entitled under the mosaic system to succeed have failed or are undiscoverable. the limitations by which the ancient german codes hedge in the testamentary jurisprudence which has been incorporated with them are also significant, and point in the same direction. it is the peculiarity of most of these german laws, in the only shape in which we know them, that, besides the _allod_ or domain of each household, they recognise several subordinate kinds or orders of property, each of which probably represents a separate transfusion of roman principles into the primitive body of teutonic usage. the primitive german or allodial property is strictly reserved to the kindred. not only is it incapable of being disposed of by testament but it is scarcely capable of being alienated by conveyance _inter vivos_. the ancient german law, like the hindoo jurisprudence, makes the male children co-proprietors with their father, and the endowment of the family cannot be parted with except by the consent of all its members. but the other sorts of property, of more modern origin and lower dignity than the allodial possessions, are much more easily alienated than they, and follow much more lenient rules of devolution. women and the descendants of women succeed to them, obviously on the principle that they lie outside the sacred precinct of the agnatic brotherhood. now, it is on these last descriptions of property, and on these only, that the testaments borrowed from rome were at first allowed to operate. these few indications may serve to lend additional plausibility to that which in itself appears to be the most probable explanation of an ascertained fact in the early history of roman wills. we have it stated on abundant authority that testaments, during the primitive period of the roman state, were executed in the comitia calata, that is, in the comitia curiata, or parliament of the patrician burghers of rome, when assembled for private business. this mode of execution has been the source of the assertion, handed down by one generation of civilians to another, that every will at one era of roman history was a solemn legislative enactment. but there is no necessity whatever for resorting to an explanation which has the defect of attributing far too much precision to the proceedings of the ancient assembly. the proper key to the story concerning the execution of wills in the comitia calata must no doubt be sought in the oldest roman law of _intestate_ succession. the canons of primitive roman jurisprudence regulating the inheritance of relations from each other were, so long as they remained unmodified by the edictal law of the prætor, to the following effect:--first, the _sui_ or direct descendants who had never been emancipated succeeded. on the failure of the _sui_, the nearest agnate came into their place, that is, the nearest person or class of the kindred who was or might have been under the same patria potestas with the deceased. the third and last degree came next, in which the inheritance devolved on the _gentiles_, that is on the collective members of the dead man's _gens_ or _house_. the house, i have explained already, was a fictitious extension of the family, consisting of all roman patrician citizens who bore the same name, and who, on the ground of bearing the same name, were supposed to be descended from a common ancestor. now the patrician assembly called the comitia curiata was a legislature in which gentes or houses were exclusively represented. it was a representative assembly of the roman people, constituted on the assumption that the constituent unit of the state was the gens. this being so, the inference seems inevitable, that the cognizance of wills by the comitia was connected with the rights of the gentiles, and was intended to secure them in their privilege of ultimate inheritance. the whole apparent anomaly is removed, if we suppose that a testament could only be made when the testator had no _gentiles_ discoverable, or when they waived their claims, and that every testament was submitted to the general assembly of the roman gentes, in order that those aggrieved by its dispositions might put their veto upon it if they pleased, or by allowing it to pass might be presumed to have renounced their reversion. it is possible that on the eve of the publication of the twelve tables this vetoing power may have been greatly curtailed or only occasionally and capriciously exercised. it is much easier, however, to indicate the meaning and origin of the jurisdiction confided to the comitia calata, than to trace its gradual development or progressive decay. the testament to which the pedigree of all modern wills may be traced is not, however, the testament executed in the calata comitia, but another testament designed to compete with it and destined to supersede it. the historical importance of this early roman will, and the light it casts on much of ancient thought, will excuse me for describing it at some length. when the testamentary power first discloses itself to us in legal history, there are signs that, like almost all the great roman institutions, it was the subject of contention between the patricians and the plebeians. the effect of the political maxim, _plebs gentem non habet_, "a plebeian cannot be a member of a house," was entirely to exclude the plebeians from the comitia curiata. some critics have accordingly supposed that a plebeian could not have his will read or recited to the patrician assembly, and was thus deprived of testamentary privileges altogether. others have been satisfied to point out the hardships of having to submit a proposed will to the unfriendly jurisdiction of an assembly in which the testator was not represented. whatever be the true view, a form of testament came into use, which has all the characteristics of a contrivance intended to evade some distasteful obligation. the will in question was a conveyance _inter vivos_, a complete and irrevocable alienation of the testator's family and substance to the person whom he meant to be his heir. the strict rules of roman law must always have permitted such an alienation, but, when the transaction was intended to have a posthumous effect, there may have been disputes whether it was valid for testamentary purposes without the formal assent of the patrician parliament. if a difference of opinion existed on the point between the two classes of the roman population, it was extinguished, with many other sources of heartburning, by the great decemviral compromise. the text of the twelve tables is still extant which says, "_pater familias uti de pecuniâ tutelâve rei suæ legâssit, ita jus esto_"--a law which can hardly have had any other object than the legalisation of the plebeian will. it is well known to scholars that, centuries after the patrician assembly had ceased to be the legislature of the roman state, it still continued to hold formal sittings for the convenience of private business. consequently, at a period long subsequent to the publication of the decemviral law, there is reason to believe that the comitia calata still assembled for the validation of testaments. its probable functions may be best indicated by saying that it was a court of registration, with the understanding however that the wills exhibited were not _enrolled_, but simply recited to the members, who were supposed to take note of their tenor and to commit them to memory. it is very likely that this form of testament was never reduced to writing at all, but at all events if the will had been originally written, the office of the comitia was certainly confined to hearing it read aloud, the document being retained afterwards in the custody of the testator, or deposited under the safeguard of some religious corporation. this publicity may have been one of the incidents of the testament executed in the comitia calata which brought it into popular disfavour. in the early years of the empire the comitia still held its meetings, but they seem to have lapsed into the merest form, and few wills, or none, were probably presented at the periodical sitting. it is the ancient plebeian will--the alternative of the testament just described--which in its remote effects has deeply modified the civilisation of the modern world. it acquired at rome all the popularity which the testament submitted to the calata comitia appears to have lost. the key to all its characteristics lies in its descent from the _mancipium_, or ancient roman conveyance, a proceeding to which we may unhesitatingly assign the parentage of two great institutions without which modern society can scarcely be supposed capable of holding together, the contract and the will. the _mancipium_, or as the word would exhibit itself in later latinity, the mancipation, carries us back by its incidents to the infancy of civil society. as it sprang from times long anterior, if not to the invention, at all events to the popularisation, of the art of writing, gestures, symbolical acts, and solemn phrases take the place of documentary forms, and a lengthy and intricate ceremonial is intended to call the attention of the parties to the importance of the transaction, and to impress it on the memory of the witnesses. the imperfection too of oral, as compared with written, testimony necessitates the multiplication of the witnesses and assistants beyond what in later times would be reasonable or intelligible limits. the roman mancipation required the presence first of all of the parties, the vendor and vendee, or we should perhaps rather say, if we are to use modern legal language, the grantor and grantee. there were also no less than _five_ witnesses; and an anomalous personage, the libripens, who brought with him a pair of scales to weigh the uncoined copper money of ancient rome. the testament we are considering--the testament _per æs et libram_, "with the copper and the scales," as it long continued to be technically called--was an ordinary mancipation with no change in the form and hardly any in words. the testator was the grantor; the five witnesses and the libripens were present; and the place of grantee was taken by a person known technically as the _familiæ emptor_, the purchaser of the family. the ordinary ceremony of a mancipation was then proceeded with. certain formal gestures were made and sentences pronounced. the _emptor familiæ_ simulated the payment of a price by striking the scales with a piece of money, and finally the testator ratified what had been done in a set form of words called the "nuncupatio" or publication of the transaction, a phrase which, i need scarcely remind the lawyer, has had a long history in testamentary jurisprudence. it is necessary to attend particularly to the character of the person called _familiæ emptor_. there is no doubt that at first he was the heir himself. the testator conveyed to him outright his whole "familia," that is, all the rights he enjoyed over and through the family; his property, his slaves, and all his ancestral privileges, together, on the other hand, with all his duties and obligations. with these data before us, we are able to note several remarkable points in which the mancipatory testament, as it may be called, differed in its primitive form from a modern will. as it amounted to a conveyance _out-and-out_ of the testator's estate, it was not _revocable_. there could be no new exercise of a power which had been exhausted. again, it was not secret. the familiæ emptor, being himself the heir, knew exactly what his rights were, and was aware that he was irreversibly entitled to the inheritance; a knowledge which the violences inseparable from the best-ordered ancient society rendered extremely dangerous. but perhaps the most surprising consequence of this relation of testaments to conveyances was the immediate vesting of the inheritance in the heir. this has seemed so incredible to not a few civilians, that they have spoken of the testator's estate as vesting conditionally on the testator's death or as granted to him from a time uncertain, _i.e._ the death of the grantor. but down to the latest period of roman jurisprudence there was a certain class of transactions which never admitted of being directly modified by a condition, or of being limited to or from a point of time. in technical language they did not admit _conditio_ or _dies_. mancipation was one of them, and therefore, strange as it may seem, we are forced to conclude that the primitive roman will took effect at once, even though the testator survived his act of testation. it is indeed likely that roman citizens originally made their wills only in the article of death, and that a provision for the continuance of the family effected by a man in the flower of life would take the form rather of an adoption than of a will. still we must believe that, if the testator did recover, he could only continue to govern his household by the sufferance of his heir. two or three remarks should be made before i explain how these inconveniences were remedied, and how testaments came to be invested with the characteristics now universally associated with them. the testament was not necessarily written: at first, it seems to have been invariably oral, and, even in later times, the instrument declaratory of the bequests was only incidentally connected with the will and formed no essential part of it. it bore in fact exactly the same relation to the testament, which the deed leading the uses bore to the fines and recoveries of old english law, or which the charter of feoffment bore to the feoffment itself. previously, indeed, to the twelve tables, no writing would have been of the slightest use, for the testator had no power of giving legacies, and the only persons who could be advantaged by a will were the heir or co-heirs. but the extreme generality of the clause in the twelve tables soon produced the doctrine that the heir must take the inheritance burdened by any directions which the testator might give him, or in other words, take it subject to legacies. written testamentary instruments assumed thereupon a new value, as a security against the fraudulent refusal of the heir to satisfy the legatees; but to the last it was at the testator's pleasure to rely exclusively on the testimony of the witnesses, and to declare by word of mouth the legacies which the _familiæ emptor_ was commissioned to pay. the terms of the expression _emptor familiæ_ demand notice. "emptor" indicates that the will was literally a sale, and the word "familiæ," when compared with the phraseology in the testamentary clause in the twelve tables, leads us to some instructive conclusions. "familia," in classical latinity, means always a man's slaves. here, however, and generally in the language of ancient roman law, it includes all persons under his potestas, and the testator's material property or substance is understood to pass as an adjunct or appendage of his household. turning to the law of the twelve tables, it will be seen that it speaks of _tutela rei suæ_, "the guardianship of his substance," a form of expression which is the exact reverse of the phrase just examined. there does not therefore appear to be any mode of escaping from the conclusion, that, even at an era so comparatively recent as that of the decemviral compromise, terms denoting "household" and "property" were blended in the current phraseology. if a man's household had been spoken of as his property we might have explained the expression as pointing to the extent of the patria potestas, but, as the interchange is reciprocal, we must allow that the form of speech carries us back to that primeval period in which property is owned by the family, and the family is governed by the citizen, so that the members of the community do not own their property _and_ their family, but rather own their property _through_ their family. at an epoch not easy to settle with precision, the roman prætors fell into the habit of acting upon testaments solemnised in closer conformity with the spirit than the letter of the law. casual dispensations became insensibly the established practice, till at length a wholly new form of will was matured and regularly engrafted on the edictal jurisprudence. the new or _prætorian_ testament derived the whole of its impregnability from the _jus honorarium_ or equity of rome. the prætor of some particular year must have inserted a clause in his inaugural proclamation declaratory of his intention to sustain all testaments which should have been executed with such and such solemnities; and, the reform having been found advantageous, the article relating to it must have been again introduced by the prætor's successor, and repeated by the next in office, till at length it formed a recognised portion of that body of jurisprudence which from these successive incorporations was styled the perpetual or continuous edict. on examining the conditions of a valid prætorian will they will be plainly seen to have been determined by the requirements of the mancipatory testament, the innovating prætor having obviously prescribed to himself the retention of the old formalities just so far as they were warrants of genuineness or securities against fraud. at the execution of the mancipatory testament seven persons had been present besides the testator. seven witnesses were accordingly essential to the prætorian will: two of them corresponding to the _libripens_ and _familiæ emptor_, who were now stripped of their symbolical character, and were merely present for the purpose of supplying their testimony. no emblematic ceremony was gone through; the will was merely recited; but then it is probable (though not absolutely certain) that a written instrument was necessary to perpetuate the evidence of the testator's dispositions. at all events, whenever a writing was read or exhibited as a person's last will, we know certainly that the prætorian court would not sustain it by special intervention, unless each of the seven witnesses had severally affixed his seal to the outside. this is the first appearance of _sealing_ in the history of jurisprudence, considered as a mode of authentication. it is to be observed that the seals of roman wills, and other documents of importance, did not simply serve as the index of the presence or assent of the signatory, but were literally fastenings which had to be broken before the writing could be inspected. the edictal law would therefore enforce the dispositions of a testator, when, instead of being symbolised through the forms of mancipation, they were simply evidenced by the seals of seven witnesses. but it may be laid down as a general proposition, that the principal qualities of roman property were incommunicable except through processes which were supposed to be coeval with the origin of the civil law. the prætor therefore could not confer an _inheritance_ on anybody. he could not place the heir or co-heirs in that very relation in which the testator had himself stood to his own rights and obligations. all he could do was to confer on the person designated as heir the practical enjoyment of the property bequeathed, and to give the force of legal acquittances to his payments of the testator's debts. when he exerted his powers to these ends, the prætor was technically said to communicate the _bonorum possessio_. the heir specially inducted under these circumstances, or _bonorum possessor_, had every proprietary privilege of the heir by the civil law. he took the profits and he could alienate, but then, for all his remedies for redress against wrong, he must go, as we should phrase it, not to the common law, but to the equity side of the prætorian court. no great chance of error would be incurred by describing him as having an _equitable_ estate in the inheritance; but then, to secure ourselves against being deluded by the analogy, we must always recollect that in one year the _bonorum possessio_ was operated upon a principle of roman law known as usucapion, and the possessor became quiritarian owner of all the property comprised in the inheritance. we know too little of the older law of civil process to be able to strike the balance of advantage and disadvantage between the different classes of remedies supplied by the prætorian tribunal. it is certain, however, that, in spite of its many defects, the mancipatory testament by which the _universitas juris_ devolved at once and unimpaired was never entirely superseded by the new will; and at a period less bigoted to antiquarian forms, and perhaps not quite alive to their significance, all the ingenuity of the jurisconsults seems to have been expended on the improvement of the more venerable instrument. at the era of gaius, which is that of the antonine cæsars, the great blemishes of the mancipatory will had been removed. originally, as we have seen, the essential character of the formalities had required that the heir himself should be the purchaser of the family, and the consequence was that he not only instantly acquired a vested interest in the testator's property, but was formally made aware of his rights. but the age of gaius permitted some unconcerned person to officiate as purchaser of the family. the heir, therefore, was not necessarily informed of the succession to which he was destined; and wills thenceforward acquired the property of _secrecy_. the substitution of a stranger for the actual heir in the functions of "familiæ emptor" had other ulterior consequences. as soon as it was legalised, a roman testament came to consist of two parts or stages--a conveyance, which was a pure form, and a nuncupatio, or publication. in this latter passage of the proceeding, the testator either orally declared to the assistants the wishes which were to be executed after his death, or produced a written document in which his wishes were embodied. it was not probably till attention had been quite drawn off from the imaginary conveyance, and concentrated on the nuncupation as the essential part of the transaction, that wills were allowed to become _revocable_. i have thus carried the pedigree of wills some way down in legal history. the root of it is the old testament "with the copper and the scales," founded on a mancipation or conveyance. this ancient will has, however, manifold defects, which are remedied, though only indirectly, by the prætorian law. meantime the ingenuity of the jurisconsults effects, in the common-law will or mancipatory testament, the very improvements which the prætor may have concurrently carried out in equity. these last ameliorations depend, however, on mere legal dexterity, and we see accordingly that the testamentary law of the day of gaius or ulpian is only transitional. what changes next ensued we know not; but at length, just before the reconstruction of the jurisprudence by justinian, we find the subjects of the eastern roman empire employing a form of will of which the pedigree is traceable to the prætorian testament on one side, and to the testament "with the copper and the scales" on the other. like the testament of the prætor, it required no mancipation, and was invalid unless sealed by seven witnesses. like the mancipatory will, it passed the inheritance and not merely a _bonorum possessio_. several, however, of its most important features were annexed by positive enactments, and it is out of regard to this threefold derivation from the prætorian edict, from the civil law, and from the imperial constitutions, that justinian speaks of the law of wills in his own day as _jus tripertitum_. the new testament thus described is the one generally known as the roman will. but it was the will of the eastern empire only; and the researches of savigny have shown that in western europe the old mancipatory testament, with all its apparatus of conveyance, copper, and scales, continued to be the form in use far down in the middle ages. chapter vii ancient and modern ideas respecting wills and successions although there is much in the modern european law of wills which is intimately connected with the oldest rules of testamentary disposition practised among men, there are nevertheless some important differences between ancient and modern ideas on the subject of wills and successions. some of the points of difference i shall endeavour to illustrate in this chapter. at a period, removed several centuries from the era of the twelve tables, we find a variety of rules engrafted on the roman civil law with the view of limiting the disinherison of children; we have the jurisdiction of the prætor very actively exerted in the same interest; and we are also presented with a new remedy, very anomalous in character and of uncertain origin, called the querela inofficiosi testamenti, "the plaint of an unduteous will," directed to the reinstatement of the issue in inheritances from which they had been unjustifiably excluded by a father's testament. comparing this condition of the law with the text of the twelve tables which concedes in terms the utmost liberty of testation, several writers have been tempted to interweave a good deal of dramatic incident into their history of the law testamentary. they tell us of the boundless license of disinherison in which the heads of families instantly began to indulge, of the scandal and injury to public morals which the new practices engendered, and of the applause of all good men which hailed the courage of the prætor in arresting the progress of paternal depravity. this story, which is not without some foundation for the principal fact it relates, is often so told as to disclose very serious misconceptions of the principles of legal history. the law of the twelve tables is to be explained by the character of the age in which it was enacted. it does not license a tendency which a later era thought itself bound to counteract, but it proceeds on the assumption that no such tendency exists, or, perhaps we should say, in ignorance of the possibility of its existence. there is no likelihood that roman citizens began immediately to avail themselves freely of the power to disinherit. it is against all reason and sound appreciation of history to suppose that the yoke of family bondage, still patiently submitted to, as we know, where its pressure galled most cruelly, would be cast off in the very particular in which its incidence in our own day is not otherwise than welcome. the law of the twelve tables permitted the execution of testaments in the only case in which it was thought possible that they could be executed, viz. on failure of children and proximate kindred. it did not forbid the disinherison of direct descendants, inasmuch as it did not legislate against a contingency which no roman lawgiver of that era could have contemplated. no doubt, as the offices of family affection progressively lost the aspect of primary personal duties, the disinherison of children was occasionally attempted. but the interference of the prætor, so far from being called for by the universality of the abuse, was doubtless first prompted by the fact that such instances of unnatural caprice were few and exceptional, and at conflict with the current morality. the indications furnished by this part of roman testamentary law are of a very different kind. it is remarkable that a will never seems to have been regarded by the romans as a means of _disinheriting_ a family, or of effecting the unequal distribution of a patrimony. the rules of law preventing its being turned to such a purpose, increase in number and stringency as the jurisprudence unfolds itself; and these rules correspond doubtless with the abiding sentiment of roman society, as distinguished from occasional variations of feeling in individuals. it would rather seem as if the testamentary power were chiefly valued for the assistance it gave in _making provision_ for a family, and in dividing the inheritance more evenly and fairly than the law of intestate succession would have divided it. if this be the true reading of the general sentiment on the point, it explains to some extent the singular horror of intestacy which always characterised the roman. no evil seems to have been considered a heavier visitation than the forfeiture of testamentary privileges; no curse appears to have been bitterer than that which imprecated on an enemy that he might die without a will. the feeling has no counterpart, or none that is easily recognisable, in the forms of opinion which exist at the present day. all men at all times will doubtless prefer chalking out the destination of their substance to having that office performed for them by the law; but the roman passion for testacy is distinguished from the mere desire to indulge caprice by its intensity; and it has of course nothing whatever in common with that pride of family, exclusively the creation of feudalism, which accumulates one description of property in the hands of a single representative. it is probable, _à priori_, that it was something in the rules of intestate succession which caused this vehement preference for the distribution of property under a testament over its distribution by law. the difficulty, however, is, that on glancing at the roman law of intestate succession, in the form which it wore for many centuries before justinian shaped it into that scheme of inheritance which has been almost universally adopted by modern lawgivers, it by no means strikes one as remarkably unreasonable or inequitable. on the contrary, the distribution it prescribes is so fair and rational, and differs so little from that with which modern society has been generally contented, that no reason suggests itself why it should have been regarded with extraordinary distaste, especially under a jurisprudence which pared down to a narrow compass the testamentary privileges of persons who had children to provide for. we should rather have expected that, as in france at this moment, the heads of families would generally save themselves the trouble of executing a will, and allow the law to do as it pleased with their assets. i think, however, if we look a little closely at the pre-justinianean scale of intestate succession, we shall discover the key to the mystery. the texture of the law consists of two distinct parts. one department of rules comes from the jus civile, the common-law of rome; the other from the edict of the prætor. the civil law, as i have already stated for another purpose, calls to the inheritance only three orders of successors in their turn; the unemancipated children, the nearest class of agnatic kindred, and the gentiles. between these three orders, the prætor interpolates various classes of relatives, of whom the civil law took no notice whatever. ultimately, the combination of the edict and of the civil law forms a table of succession not materially different from that which has descended to the generality of modern codes. the point for recollection is that there must anciently have been a time at which the rules of the civil law determined the scheme of intestate succession exclusively, and at which the arrangements of the edict were non-existent, or not consistently carried out. we cannot doubt that, in its infancy, the prætorian jurisprudence had to contend with formidable obstructions, and it is more than probable that, long after popular sentiment and legal opinion had acquiesced in it, the modifications which it periodically introduced were governed by no certain principles, and fluctuated with the varying bias of successive magistrates. the rules of intestate succession, which the romans must at this period have practised, account, i think--and more than account--for that vehement distaste for an intestacy to which roman society during so many ages remained constant. the order of succession was this: on the death of a citizen, having no will or no valid will, his unemancipated children became his heirs. his _emancipated_ sons had no share in the inheritance. if he left no direct descendants living at his death, the nearest grade of the agnatic kindred succeeded, but no part of the inheritance was given to any relative united (however closely) with the dead man through female descents. all the other branches of the family were excluded, and the inheritance escheated to the _gentiles_, or entire body of roman citizens bearing the same name with the deceased. so that on failing to execute an operative testament, a roman of the era under examination left his emancipated children absolutely without provision, while, on the assumption that he died childless, there was imminent risk that his possessions would escape from the family altogether, and devolve on a number of persons with whom he was merely connected by the sacerdotal fiction that assumed all members of the same _gens_ to be descended from a common ancestor. the prospect of such an issue is in itself a nearly sufficient explanation of the popular sentiment; but, in point of fact, we shall only half understand it, if we forget that the state of things i have been describing is likely to have existed at the very moment when roman society was in the first stage of its transition from its primitive organisation in detached families. the empire of the father had indeed received one of the earliest blows directed at it through the recognition of emancipation as a legitimate usage, but the law, still considering the patria potestas to be the root of family connection, persevered in looking on the emancipated children as strangers to the rights of kinship and aliens from the blood. we cannot, however, for a moment suppose that the limitations of the family imposed by legal pedantry had their counterpart in the natural affection of parents. family attachments must still have retained that nearly inconceivable sanctity and intensity which belonged to them under the patriarchal system; and, so little are they likely to have been extinguished by the act of emancipation, that the probabilities are altogether the other way. it may be unhesitatingly taken for granted that enfranchisement from the father's power was a demonstration, rather than a severance, of affection--a mark of grace and favour accorded to the best-beloved and most esteemed of the children. if sons thus honoured above the rest were absolutely deprived of their heritage by an intestacy, the reluctance to incur it requires no farther explanation. we might have assumed _à priori_ that the passion for testacy was generated by some moral injustice entailed by the rules of intestate succession; and here we find them at variance with the very instinct by which early society was cemented together. it is possible to put all that has been urged in a very succinct form. every dominant sentiment of the primitive romans was entwined with the relations of the family. but what was the family? the law defined it one way--natural affection another. in the conflict between the two, the feeling we would analyse grew up, taking the form of an enthusiasm for the institution by which the dictates of affection were permitted to determine the fortunes of its objects. i regard, therefore, the roman horror of intestacy as a monument of a very early conflict between ancient law and slowly changing ancient sentiment on the subject of the family. some passages in the roman statute-law, and one statute in particular which limited the capacity for inheritance possessed by women, must have contributed to keep alive the feeling; and it is the general belief that the system of creating fidei-commissa, or bequests in trust, was devised to evade the disabilities imposed by those statutes. but the feeling itself, in its remarkable intensity, seems to point back to some deeper antagonism between law and opinion; nor is it at all wonderful that the improvements of jurisprudence by the prætor should not have extinguished it. everybody conversant with the philosophy of opinion is aware that a sentiment by no means dies out, of necessity, with the passing away of the circumstances which produced it. it may long survive them; nay, it may afterwards attain to a pitch and climax of intensity which it never attained during their actual continuance. the view of a will which regards it as conferring the power of diverting property from the family, or of distributing it in such uneven proportions as the fancy or good sense of the testator may dictate, is not older than that later portion of the middle ages in which feudalism had completely consolidated itself. when modern jurisprudence first shows itself in the rough, wills are rarely allowed to dispose with absolute freedom of a dead man's assets. wherever at this period the descent of property was regulated by will--and over the greater part of europe moveable or personal property was the subject of testamentary disposition--the exercise of the testamentary power was seldom allowed to interfere with the right of the widow to a definite share, and of the children to certain fixed proportions, of the devolving inheritance. the shares of the children, as their amount shows, were determined by the authority of roman law. the provision for the widow was attributable to the exertions of the church, which never relaxed its solicitude for the interest of wives surviving their husbands--winning, perhaps, one of the most arduous of its triumphs when, after exacting for two or three centuries an express promise from the husband at marriage to endow his wife, it at length succeeded in engrafting the principle of dower on the customary law of all western europe. curiously enough, the dower of lands proved a more stable institution than the analogous and more ancient reservation of certain shares of the personal property to the widow and children. a few local customs in france maintained the right down to the revolution, and there are traces of similar usages in england; but on the whole the doctrine prevailed that moveables might be freely disposed of by will, and, even when the claims of the widow continued to be respected, the privileges of the children were obliterated from jurisprudence. we need not hesitate to attribute the change to the influence of primogeniture. as the feudal law of land practically disinherited all the children in favour of one, the equal distribution even of those sorts of property which might have been equally divided ceased to be viewed as a duty. testaments were the principal instruments employed in producing inequality, and in this condition of things originated the shade of difference which shows itself between the ancient and the modern conception of a will. but, though the liberty of bequest, enjoyed through testaments, was thus an accidental fruit of feudalism, there is no broader distinction than that which exists between a system of free testamentary disposition and a system, like that of the feudal land-law, under which property descends compulsorily in prescribed lines of devolution. this truth appears to have been lost sight of by the authors of the french codes. in the social fabric which they determined to destroy, they saw primogeniture resting chiefly on family settlements, but they also perceived that testaments were frequently employed to give the eldest son precisely the same preference which was reserved to him under the strictest of entails. in order, therefore, to make sure of their work, they not only rendered it impossible to prefer the eldest son to the rest in marriage-arrangements, but they almost expelled testamentary succession from the law, lest it should be used to defeat their fundamental principle of an equal distribution of property among children at the parent's death. the result is that they have established a system of small perpetual entails, which is infinitely nearer akin to the system of feudal europe than would be a perfect liberty of bequest. the land-law of england, "the herculaneum of feudalism," is certainly much more closely allied to the land-law of the middle ages than that of any continental country, and wills with us are frequently used to aid or imitate that preference of the eldest son and his line which is a nearly universal feature in marriage settlements of real property. but nevertheless feeling and opinion in this country have been profoundly affected by the practice of free testamentary disposition; and it appears to me that the state of sentiment in a great part of french society, on the subject of the conservation of property in families, is much liker that which prevailed through europe two or three centuries ago than are the current opinions of englishmen. the mention of primogeniture introduces one of the most difficult problems of historical jurisprudence. though i have not paused to explain my expressions, it may have been noticed that i have frequently spoken of a number of "co-heirs" as placed by the roman law of succession on the same footing with a single heir. in point of fact, we know of no period of roman jurisprudence at which the place of the heir, or universal successor, might not have been taken by a group of co-heirs. this group succeeded as a single unit, and the assets were afterwards divided among them in a separate legal proceeding. when the succession was _ab intestato_, and the group consisted of the children of the deceased, they each took an equal share of the property; nor, though males had at one time some advantages over females, is there the faintest trace of primogeniture. the mode of distribution is the same throughout archaic jurisprudence. it certainly seems that, when civil society begins and families cease to hold together through a series of generations, the idea which spontaneously suggests itself is to divide the domain equally among the members of each successive generation, and to reserve no privilege to the eldest son or stock. some peculiarly significant hints as to the close relation of this phenomenon to primitive thought are furnished by systems yet more archaic than the roman. among the hindoos, the instant a son is born, he acquires a vested right in his father's property, which cannot be sold without recognition of his joint ownership. on the son's attaining full age, he can sometimes compel a partition of the estate even against the consent of the parent; and, should the parent acquiesce, one son can always have a partition even against the will of the others. on such partition taking place, the father has no advantage over his children, except that he has two of the shares instead of one. the ancient law of the german tribes was exceedingly similar. the _allod_ or domain of the family was the joint-property of the father and his sons. it does not, however, appear to have been habitually divided even at the death of the parent, and in the same way the possessions of a hindoo, however divisible theoretically, are so rarely distributed in fact, that many generations constantly succeed each other without a partition taking place, and thus the family in india has a perpetual tendency to expand into the village community, under conditions which i shall hereafter attempt to elucidate. all this points very clearly to the absolutely equal division of assets among the male children at death as the practice most usual with society at the period when family-dependency is in the first stages of disintegration. here then emerges the historical difficulty of primogeniture. the more clearly we perceive that, when the feudal institutions were in process of formation, there was no source in the world whence they could derive their elements but the roman law of the provincials on the one hand and the archaic customs of the barbarians on the other, the more are we perplexed at first sight by our knowledge that neither roman nor barbarian was accustomed to give any preference to the eldest son or his line in the succession to property. primogeniture did not belong to the customs which the barbarians practised on their first establishment within the roman empire. it is known to have had its origin in the _benefices_ or beneficiary gifts of the invading chieftains. these benefices, which were occasionally conferred by the earlier immigrant kings, but were distributed on a great scale by charlemagne, were grants of roman provincial land to be holden by the beneficiary on condition of military service. the _allodial_ proprietors do not seem to have followed their sovereign on distant or difficult enterprises, and all the grander expeditions of the frankish chiefs and of charlemagne were accomplished with forces composed of soldiers either personally dependent on the royal house or compelled to serve it by the tenure of their land. the benefices, however, were not at first in any sense hereditary. they were held at the pleasure of the grantor, or at most for the life of the grantee; but still, from the very outset, no effort seems to have been spared by the beneficiaries to enlarge the tenure, and to continue their lands in their family after death. through the feebleness of charlemagne's successors these attempts were universally successful, and the benefice gradually transformed itself into the hereditary fief. but, though the fiefs were hereditary, they did not necessarily descend to the eldest son. the rules of succession which they followed were entirely determined by the terms agreed upon between the grantor and the beneficiary, or imposed by one of them on the weakness of the other. the original tenures were therefore extremely various; not indeed so capriciously various as is sometimes asserted, for all which have hitherto been described present some combination of the modes of succession familiar to romans and to barbarians, but still exceedingly miscellaneous. in some of them, the eldest son and his stock undoubtedly succeeded to the fief before the others, but such successions, so far from being universal, do not even appear to have been general. precisely the same phenomena recur during that more recent transmutation of european society which entirely substituted the feudal form of property for the domainial (or roman) and the allodial (or german). the allods were wholly absorbed by the fiefs. the greater allodial proprietors transformed themselves into feudal lords by conditional alienations of portions of their land to dependants; the smaller sought an escape from the oppressions of that terrible time by surrendering their property to some powerful chieftain, and receiving it back at his hands on condition of service in his wars. meantime, that vast mass of the population of western europe whose condition was servile or semi-servile--the roman and german personal slaves, the roman _coloni_ and the german _lidi_--were concurrently absorbed by the feudal organisation, a few of them assuming a menial relation to the lords, but the greater part receiving land on terms which in those centuries were considered degrading. the tenures created during this era of universal infeudation were as various as the conditions which the tenants made with their new chiefs or were forced to accept from them. as in the case of the benefices, the succession to some, but by no means to all, of the estates followed the rule of primogeniture. no sooner, however, has the feudal system prevailed throughout the west, than it becomes evident that primogeniture has some great advantage over every other mode of succession. it spread over europe with remarkable rapidity, the principal instrument of diffusion being family settlements, the pactes de famille of france and haus-gesetze of germany, which universally stipulated that lands held by knightly service should descend to the eldest son. ultimately the law resigned itself to follow inveterate practice, and we find that in all the bodies of customary law, which were gradually built up, the eldest son and stock are preferred in the succession to estates of which the tenure is free and military. as to lands held by servile tenures (and originally all tenures were servile which bound the tenant to pay money or bestow manual labour), the system of succession prescribed by custom differed greatly in different countries and different provinces. the more general rule was that such lands were divided equally at death among all the children, but still in some instances the eldest son was preferred, in some the youngest. but primogeniture usually governed the inheritance of that class of estates, in some respects the most important of all, which were held by tenures that, like the english socage, were of later origin than the rest, and were neither altogether free nor altogether servile. the diffusion of primogeniture is usually accounted for by assigning what are called feudal reasons for it. it is asserted that the feudal superior had a better security for the military service he required when the fief descended to a single person, instead of being distributed among a number on the decease of the last holder. without denying that this consideration may partially explain the favour gradually acquired by primogeniture, i must point out that primogeniture became a custom of europe much more through its popularity with the tenants than through any advantage it conferred on the lords. for its origin, moreover, the reason given does not account at all. nothing in law springs entirely from a sense of convenience. there are always certain ideas existing antecedently on which the sense of convenience works, and of which it can do no more than form some new combination; and to find these ideas in the present case is exactly the problem. a valuable hint is furnished to us from a quarter fruitful of such indications. although in india the possessions of a parent are divisible at his death, and may be divisible during his life, among all his male children in equal shares, and though this principle of the equal distribution of _property_ extends to every part of the hindoo institutions, yet wherever _public office_ or _political power_ devolves at the decease of the last incumbent, the succession is nearly universally according to the rules of primogeniture. sovereignties descend therefore to the eldest son, and where the affairs of the village community, the corporate unit of hindoo society, are confided to a single manager, it is generally the eldest son who takes up the administration at his parent's death. all offices, indeed, in india, tend to become hereditary, and, when their nature permits it, to vest in the eldest member of the oldest stock. comparing these indian successions with some of the ruder social organisations which have survived in europe almost to our own day, the conclusion suggests itself that, when patriarchal power is not only _domestic_ but _political_, it is not distributed among all the issue at the parent's death, but is the birthright of the eldest son. the chieftainship of a highland clan, for example, followed the order of primogeniture. there seems, in truth, to be a form of family-dependency still more archaic than any of those which we know from the primitive records of organised civil societies. the agnatic union of the kindred in ancient roman law, and a multitude of similar indications, point to a period at which all the ramifying branches of the family tree held together in one organic whole; and it is no presumptuous conjecture, that, when the corporation thus formed by the kindred was in itself an independent society, it was governed by the eldest male of the oldest line. it is true that we have no actual knowledge of any such society. even in the most elementary communities, family-organisations, as we know them, are at most _imperia in imperio_. but the position of some of them, of the celtic clans in particular, was sufficiently near independence within historical times to force on us the conviction that they were once separate _imperia_, and that primogeniture regulated the succession to the chieftainship. it is, however, necessary to be on our guard against modern associations with the term of law. we are speaking of a family-connection still closer and more stringent than any with which we are made acquainted by hindoo society or ancient roman law. if the roman paterfamilias was visibly steward of the family possessions, if the hindoo father is only joint-sharer with his sons, still more emphatically must the true patriarchal chieftain be merely the administrator of a common fund. the examples of succession by primogeniture which were found among the benefices may, therefore, have been imitated from a system of family-government known to the invading races, though not in general use. some ruder tribes may have still practised it, or, what is still more probable, society may have been so slightly removed from its more archaic condition that the minds of some men spontaneously recurred to it, when they were called upon to settle the rules of inheritance for a new form of property. but there is still the question, why did primogeniture gradually supersede every other principle of succession? the answer, i think, is, that european society decidedly retrograded during the dissolution of the carlovingian empire. it sank a point or two back even from the miserably low degree which it had marked during the early barbarian monarchies. the great characteristic of the period was the feebleness, or rather the abeyance, of kingly and therefore of civil authority; and hence it seems as if, civil society no longer cohering, men universally flung themselves back on a social organisation older than the beginnings of civil communities. the lord with his vassals, during the ninth and tenth centuries, may be considered as a patriarchal household, recruited, not as in the primitive times by adoption, but by infeudation; and to such a confederacy, succession by primogeniture was a source of strength and durability. so long as the land was kept together on which the entire organisation rested, it was powerful for defence and attack; to divide the land was to divide the little society, and voluntarily to invite aggression in an era of universal violence. we may be perfectly certain that into this preference for primogeniture there entered no idea of disinheriting the bulk of the children in favour of one. everybody would have suffered by the division of the fief. everybody was a gainer by its consolidation. the family grew stronger by the concentration of power in the same hands; nor is it likely that the lord who was invested with the inheritance had any advantage over his brethren and kinsfolk in occupations, interests, or indulgences. it would be a singular anachronism to estimate the privileges succeeded to by the heir of a fief, by the situation in which the eldest son is placed under an english strict settlement. i have said that i regard the early feudal confederacies as descended from an archaic form of the family, and as wearing a strong resemblance to it. but then in the ancient world, and in the societies which have not passed through the crucible of feudalism, the primogeniture which seems to have prevailed never transformed itself into the primogeniture of the later feudal europe. when the group of kinsmen ceased to be governed through a series of generations by a hereditary chief, the domain which had been managed for all appears to have been equally divided among all. why did this not occur in the feudal world? if during the confusions of the first feudal period the eldest son held the land for the behoof of the whole family, why was it that when feudal europe had consolidated itself, and regular communities were again established, the whole family did not resume that capacity for equal inheritance which had belonged to roman and german alike? the key which unlocks this difficulty has rarely been seized by the writers who occupy themselves in tracing the genealogy of feudalism. they perceive the materials of the feudal institutions, but they miss the cement. the ideas and social forms which contributed to the formation of the system were unquestionably barbarian and archaic, but, as soon as courts and lawyers were called in to interpret and define it, the principles of interpretation which they applied to it were those of the latest roman jurisprudence, and were therefore excessively refined and matured. in a patriarchally governed society, the eldest son may succeed to the government of the agnatic group, and to the absolute disposal of its property. but he is not therefore a true proprietor. he has correlative duties not involved in the conception of proprietorship, but quite undefined and quite incapable of definition. the later roman jurisprudence, however, like our own law, looked upon uncontrolled power over property as equivalent to ownership, and did not, and, in fact, could not, take notice of liabilities of such a kind, that the very conception of them belonged to a period anterior to regular law. the contact of the refined and the barbarous notion had inevitably for its effect the conversion of the eldest son into legal proprietor of the inheritance. the clerical and secular lawyers so defined his position from the first; but it was only by insensible degrees that the younger brother, from participating on equal terms in all the dangers and enjoyments of his kinsman, sank into the priest, the soldier of fortune, or the hanger-on of the mansion. the legal revolution was identical with that which occurred on a smaller scale, and in quite recent times, through the greater part of the highlands of scotland. when called in to determine the legal powers of the chieftain over the domains which gave sustenance to the clan, scottish jurisprudence had long since passed the point at which it could take notice of the vague limitations on completeness of dominion imposed by the claims of the clansmen, and it was inevitable therefore that it should convert the patrimony of many into the estate of one. for the sake of simplicity i have called the mode of succession primogeniture whenever a single son or descendant succeeds to the authority over a household or society. it is remarkable, however, that in the few very ancient examples which remain to us of this sort of succession, it is not always the eldest son, in the sense familiar to us, who takes up the representation. the form of primogeniture which has spread over western europe has also been perpetuated among the hindoos, and there is every reason to believe that it is the normal form. under it, not only the eldest son, but the eldest line is always preferred. if the eldest son fails, his eldest son has precedence not only over brothers but over uncles; and, if he too fails, the same rule is followed in the next generation. but when the succession is not merely to _civil_ but to _political_ power, a difficulty may present itself which will appear of greater magnitude according as the cohesion of society is less perfect. the chieftain who last exercised authority may have outlived his eldest son, and the grandson who is primarily entitled to succeed may be too young and immature to undertake the actual guidance of the community, and the administration of its affairs. in such an event, the expedient which suggests itself to the more settled societies is to place the infant heir under guardianship till he reaches the age of fitness for government. the guardianship is generally that of the male agnates; but it is remarkable that the contingency supposed is one of the rare cases in which ancient societies have consented to the exercise of power by women, doubtless out of respect to the overshadowing claims of the mother. in india, the widow of a hindoo sovereign governs in the name of her infant son, and we cannot but remember that the custom regulating succession to the throne of france--which, whatever be its origin, is doubtless of the highest antiquity--preferred the queen-mother to all other claimants for the regency, at the same time that it rigorously excluded all females from the throne. there is, however, another mode of obviating the inconvenience attending the devolution of sovereignty on an infant heir, and it is one which would doubtless occur spontaneously to rudely organised communities. this is to set aside the infant heir altogether, and confer the chieftainship on the eldest surviving male of the first generation. the celtic clan-associations, among the many phenomena which they have preserved of an age in which civil and political society were not yet even rudimentarily separated, have brought down this rule of succession to historical times. with them, it seems to have existed in the form of a positive canon, that, failing the eldest son, his next brother succeeds in priority to all grandsons, whatever be their age at the moment when the sovereignty devolves. some writers have explained the principle by assuming that the celtic customs took the last chieftain as a sort of root or stock, and then gave the succession to the descendant who should be least remote from him; the uncle thus being preferred to the grandson as being nearer to the common root. no objection can be taken to this statement if it be merely intended as a description of the system of succession; but it would be a serious error to conceive the men who first adopted the rule as applying a course of reasoning which evidently dates from the time when feudal schemes of succession begun to be debated among lawyers. the true origin of the preference of the uncle to the grandson is doubtless a simple calculation on the part of rude men in a rude society that it is better to be governed by a grown chieftain than by a child, and that the younger son is more likely to have come to maturity than any of the eldest son's descendants. at the same time, we have some evidence that the form of primogeniture with which we are best acquainted is the primary form, in the tradition that the assent of the clan was asked when an infant heir was passed over in favour of his uncle. there is a tolerably well authenticated instance of this ceremony in the annals of the macdonalds. under mahometan law, which has probably preserved an ancient arabian custom, inheritances of property are divided equally among sons, the daughters taking a half share; but if any of the children die before the division of the inheritance, leaving issue behind, these grandchildren are entirely excluded by their uncles and aunts. consistently with this principle, the succession, when political authority devolves, is according to the form of primogeniture which appears to have obtained among the celtic societies. in the two great mahometan families of the west, the rule is believed to be, that the uncle succeeds to the throne in preference to the nephew, though the latter be the son of an elder brother; but though this rule has been followed quite recently in egypt, i am informed that there is some doubt as to its governing the devolution of the turkish sovereignty. the policy of the sultans has in fact hitherto prevented cases for its application from occurring, and it is possible that their wholesale massacres of their younger brothers may have been perpetuated quite as much in the interest of their children as for the sake of making away with dangerous competitors for the throne. it is evident, however, that in polygamous societies the form of primogeniture will always tend to vary. many considerations may constitute a claim on the succession, the rank of the mother, for example, or her degree in the affections of the father. accordingly, some of the indian mahometan sovereigns, without pretending to any distinct testamentary power, claim the right of nominating the son who is to succeed. the _blessing_ mentioned in the scriptural history of isaac and his sons has sometimes been spoken of as a will, but it seems rather to have been a mode of naming an eldest son. chapter viii the early history of property the roman institutional treatises, after giving their definition of the various forms and modifications of ownership, proceed to discuss the natural modes of acquiring property. those who are unfamiliar with the history of jurisprudence are not likely to look upon these "natural modes" of acquisition as possessing, at first sight, either much speculative or much practical interest. the wild animal which is snared or killed by the hunter, the soil which is added to our field by the imperceptible deposits of a river, the tree which strikes its roots into our ground, are each said by the roman lawyers to be acquired by us _naturally_. the older jurisconsults had doubtless observed that such acquisitions were universally sanctioned by the usages of the little societies around them, and thus the lawyers of a later age, finding them classed in the ancient jus gentium, and perceiving them to be of the simplest description, allotted them a place among the ordinances of nature. the dignity with which they were invested has gone on increasing in modern times till it is quite out of proportion to their original importance. theory has made them its favourite food, and has enabled them to exercise the most serious influence on practice. it will be necessary for us to attend to one only among these "natural modes of acquisition," occupatio or occupancy. occupancy is the advisedly taking possession of that which at the moment is the property of no man, with the view (adds the technical definition) of acquiring property in it for yourself. the objects which the roman lawyers called _res nullius_--things which have not or have never had an owner--can only be ascertained by enumerating them. among things which _never had_ an owner are wild animals, fishes, wild fowl, jewels disinterred for the first time, and lands newly discovered or never before cultivated. among things which _have not_ an owner are moveables which have been abandoned, lands which have been deserted, and (an anomalous but most formidable item) the property of an enemy. in all these objects the full rights of dominion were acquired by the _occupant_ who first took possession of them with the intention of keeping them as his own--an intention which, in certain cases, had to be manifested by specific acts. it is not difficult, i think, to understand the universality which caused the practice of occupancy to be placed by one generation of roman lawyers in the law common to all nations, and the simplicity which occasioned its being attributed by another to the law of nature. but for its fortunes in modern legal history we are less prepared by _à priori_ considerations. the roman principle of occupancy, and the rules into which the jurisconsults expanded it, are the source of all modern international law on the subject of capture in war and of the acquisition of sovereign rights in newly discovered countries. they have also supplied a theory of the origin of property, which is at once the popular theory, and the theory which, in one form or another, is acquiesced in by the great majority of speculative jurists. i have said that the roman principle of occupancy has determined the tenor of that chapter of international law which is concerned with capture in war. the law of warlike capture derives its rules from the assumption that communities are remitted to a state of nature by the outbreak of hostilities, and that, in the artificial natural condition thus produced, the institution of private property falls into abeyance so far as concerns the belligerents. as the later writers on the law of nature have always been anxious to maintain that private property was in some sense sanctioned by the system which they were expounding, the hypothesis that an enemy's property is _res nullius_ has seemed to them perverse and shocking, and they are careful to stigmatise it as a mere fiction of jurisprudence. but, as soon as the law of nature is traced to its source in the jus gentium, we see at once how the goods of an enemy came to be looked upon as nobody's property, and therefore as capable of being acquired by the first occupant. the idea would occur spontaneously to persons practising the ancient forms of warfare, when victory dissolved the organisation of the conquering army and dismissed the soldiers to indiscriminate plunder. it is probable, however, that originally it was only moveable property which was thus permitted to be acquired by the captor. we know on independent authority that a very different rule prevailed in ancient italy as to the acquisition of ownership in the soil of a conquered country, and we may therefore suspect that the application of the principle of occupancy to land (always a matter of difficulty) dates from the period when the jus gentium was becoming the code of nature, and that it is the result of a generalisation effected by the jurisconsults of the golden age. their dogmas on the point are preserved in the pandects of justinian, and amount to an unqualified assertion that enemy's property of every sort is _res nullius_ to the other belligerent, and that occupancy, by which the captor makes them his own, is an institution of natural law. the rules which international jurisprudence derives from these positions have sometimes been stigmatised as needlessly indulgent to the ferocity and cupidity of combatants, but the charge has been made, i think, by persons who are unacquainted with the history of wars, and who are consequently ignorant how great an exploit it is to command obedience for a rule of any kind. the roman principle of occupancy, when it was admitted into the modern law of capture in war, drew with it a number of subordinate canons, limiting and giving precision to its operation, and if the contests which have been waged since the treatise of grotius became an authority, are compared with those of an earlier date, it will be seen that, as soon as the roman maxims were received, warfare instantly assumed a more tolerable complexion. if the roman law of occupancy is to be taxed with having had pernicious influence on any part of the modern law of nations, there is another chapter in it which may be said, with some reason, to have been injuriously affected. in applying to the discovery of new countries the same principles which the romans had applied to the finding of a jewel, the publicists forced into their service a doctrine altogether unequal to the task expected from it. elevated into extreme importance by the discoveries of the great navigators of the fifteenth and sixteenth centuries, it raised more disputes than it solved. the greatest uncertainty was very shortly found to exist on the very two points on which certainty was most required, the extent of the territory which was acquired for his sovereign by the discoverer, and the nature of the acts which were necessary to complete the _adprehensio_ or assumption of sovereign possession. moreover, the principle itself, conferring as it did such enormous advantages as the consequence of a piece of good luck, was instinctively mutinied against by some of the most adventurous nations in europe, the dutch, the english, and the portuguese. our own countrymen, without expressly denying the rule of international law, never did, in practice, admit the claim of the spaniards to engross the whole of america south of the gulf of mexico, or that of the king of france to monopolise the valleys of the ohio and the mississippi. from the accession of elizabeth to the accession of charles the second, it cannot be said that there was at any time thorough peace in the american waters, and the encroachments of the new england colonists on the territory of the french king continued for almost a century longer. bentham was so struck with the confusion attending the application of the legal principle, that he went out of his way to eulogise the famous bull of pope alexander the sixth, dividing the undiscovered countries of the world between the spaniards and portuguese by a line drawn one hundred leagues west of the azores; and, grotesque as his praises may appear at first sight, it may be doubted whether the arrangement of pope alexander is absurder in principle than the rule of public law, which gave half a continent to the monarch whose servants had fulfilled the conditions required by roman jurisprudence for the acquisition of property in a valuable object which could be covered by the hand. to all who pursue the inquiries which are the subject of this volume, occupancy is pre-eminently interesting on the score of the service it has been made to perform for speculative jurisprudence, in furnishing a supposed explanation of the origin of private property. it was once universally believed that the proceeding implied in occupancy was identical with the process by which the earth and its fruits, which were at first in common, became the allowed property of individuals. the course of thought which led to this assumption is not difficult to understand, if we seize the shade of difference which separates the ancient from the modern conception of natural law. the roman lawyers had laid down that occupancy was one of the natural modes of acquiring property, and they undoubtedly believed that, were mankind living under the institutions of nature, occupancy would be one of their practices. how far they persuaded themselves that such a condition of the race had ever existed, is a point, as i have already stated, which their language leaves in much uncertainty; but they certainly do seem to have made the conjecture, which has at all times possessed much plausibility, that the institution of property was not so old as the existence of mankind. modern jurisprudence, accepting all their dogmas without reservation, went far beyond them in the eager curiosity with which it dwelt on the supposed state of nature. since then it had received the position that the earth and its fruits were once _res nullius_, and since its peculiar view of nature led it to assume without hesitation that the human race had actually practised the occupancy of _res nullius_ long before the organisation of civil societies, the inference immediately suggested itself that occupancy was the process by which the "no man's goods" of the primitive world became the private property of individuals in the world of history. it would be wearisome to enumerate the jurists who have subscribed to this theory in one shape or another, and it is the less necessary to attempt it because blackstone, who is always a faithful index of the average opinions of his day, has summed them up in his nd book and st chapter. "the earth," he writes, "and all things therein were the general property of mankind from the immediate gift of the creator. not that the communion of goods seems ever to have been applicable, even in the earliest ages, to aught but the substance of the thing; nor could be extended to the use of it. for, by the law of nature and reason he who first began to use it acquired therein a kind of transient property that lasted so long as he was using it, and no longer; or to speak with greater precision, the right of possession continued for the same time only that the act of possession lasted. thus the ground was in common, and no part was the permanent property of any man in particular; yet whoever was in the occupation of any determined spot of it, for rest, for shade, or the like, acquired for the time a sort of ownership, from which it would have been unjust and contrary to the law of nature to have driven him by force, but the instant that he quitted the use of occupation of it, another might seize it without injustice." he then proceeds to argue that "when mankind increased in number, it became necessary to entertain conceptions of more permanent dominion, and to appropriate to individuals not the immediate use only, but the very substance of the thing to be used." some ambiguities of expression in this passage lead to the suspicion that blackstone did not quite understand the meaning of the proposition which he found in his authorities, that property in the earth's surface was first acquired, under the law of nature, by the _occupant_; but the limitation which designedly or through misapprehension he has imposed on the theory brings it into a form which it has not infrequently assumed. many writers more famous than blackstone for precision of language have laid down that, in the beginning of things, occupancy first gave a right against the world to an exclusive but temporary enjoyment, and that afterwards this right, while it remained exclusive, became perpetual. their object in so stating their theory was to reconcile the doctrine that in the state of nature _res nullius_ became property through occupancy, with the inference which they drew from the scriptural history that the patriarchs did not at first permanently appropriate the soil which had been grazed over by their flocks and herds. the only criticism which could be directly applied to the theory of blackstone would consist in inquiring whether the circumstances which make up his picture of a primitive society are more or less probable than other incidents which could be imagined with equal readiness. pursuing this method of examination, we might fairly ask whether the man who had _occupied_ (blackstone evidently uses this word with its ordinary english meaning) a particular spot of ground for rest or shade would be permitted to retain it without disturbance. the chances surely are that his right to possession would be exactly coextensive with his power to keep it, and that he would be constantly liable to disturbance by the first comer who coveted the spot and thought himself strong enough to drive away the possessor. but the truth is that all such cavil at these positions is perfectly idle from the very baselessness of the positions themselves. what mankind did in the primitive state may not be a hopeless subject of inquiry, but of their motives for doing it it is impossible to know anything. these sketches of the plight of human beings in the first ages of the world are effected by first supposing mankind to be divested of a great part of the circumstances by which they are now surrounded, and by then assuming that, in the condition thus imagined, they would preserve the same sentiments and prejudices by which they are now actuated,--although, in fact, these sentiments may have been created and engendered by those very circumstances of which, by the hypothesis, they are to be stripped. there is an aphorism of savigny which has been sometimes thought to countenance a view of the origin of property somewhat similar to the theories epitomised by blackstone. the great german jurist has laid down that all property is founded on adverse possession ripened by prescription. it is only with respect to roman law that savigny makes this statement, and before it can fully be appreciated much labour must be expended in explaining and defining the expressions employed. his meaning will, however, be indicated with sufficient accuracy if we consider him to assert that, how far soever we carry our inquiry into the ideas of property received among the romans, however closely we approach in tracing them to the infancy of law, we can get no farther than a conception of ownership involving the three elements in the canon--possession, adverseness of possession, that is a holding not permissive or subordinate, but exclusive against the world, and prescription, or a period of time during which the adverse possession has uninterruptedly continued. it is exceedingly probable that this maxim might be enunciated with more generality than was allowed to it by its author, and that no sound or safe conclusion can be looked for from investigations into any system of laws which are pushed farther back than the point at which these combined ideas constitute the notion of proprietary right. meantime, so far from bearing out the popular theory of the origin of property, savigny's canon is particularly valuable as directing our attention to its weakest point. in the view of blackstone and those whom he follows, it was the mode of assuming the exclusive enjoyment which mysteriously affected the minds of the fathers of our race. but the mystery does not reside here. it is not wonderful that property began in adverse possession. it is not surprising that the first proprietor should have been the strong man armed who kept his goods in peace. but why it was that lapse of time created a sentiment of respect for his possession--which is the exact source of the universal reverence of mankind for that which has for a long period _de facto_ existed--are questions really deserving the profoundest examination, but lying far beyond the boundary of our present inquiries. before pointing out the quarter in which we may hope to glean some information, scanty and uncertain at best, concerning the early history of proprietary right, i venture to state my opinion that the popular impression in reference to the part played by occupancy in the first stages of civilisation directly reverses the truth. occupancy is the advised assumption of physical possession; and the notion that an act of this description confers a title to "res nullius," so far from being characteristic of very early societies, is in all probability the growth of a refined jurisprudence and of a settled condition of the laws. it is only when the rights of property have gained a sanction from long practical inviolability and when the vast majority of the objects of enjoyment have been subjected to private ownership, that mere possession is allowed to invest the first possessor with dominion over commodities in which no prior proprietorship has been asserted. the sentiment in which this doctrine originated is absolutely irreconcilable with that infrequency and uncertainty of proprietary rights which distinguish the beginnings of civilisation. its true basis seems to be, not an instinctive bias towards the institution of property, but a presumption arising out of the long continuance of that institution, that _everything ought to have an owner_. when possession is taken of a "res nullius," that is, of an object which _is_ not, or has _never_ been, reduced to dominion, the possessor is permitted to become proprietor from a feeling that all valuable things are naturally the subjects of an exclusive enjoyment, and that in the given case there is no one to invest with the right of property except the occupant. the occupant in short, becomes the owner, because all things are presumed to be somebody's property and because no one can be pointed out as having a better right than he to the proprietorship of this particular thing. even were there no other objection to the descriptions of mankind in their natural state which we have been discussing, there is one particular in which they are fatally at variance with the authentic evidence possessed by us. it will be observed that the acts and motives which these theories suppose are the acts and motives of individuals. it is each individual who for himself subscribes the social compact. it is some shifting sandbank in which the grains are individual men, that according to the theory of hobbes is hardened into the social rock by the wholesome discipline of force. it is an individual who, in the picture drawn by blackstone, "is in the occupation of a determined spot of ground for rest, for shade, or the like." the vice is one which necessarily afflicts all the theories descended from the natural law of the romans, which differed principally from their civil law in the account which it took of individuals, and which has rendered precisely its greatest service to civilisation in enfranchising the individual from the authority of archaic society. but ancient law, it must again be repeated, knows next to nothing of individuals. it is concerned not with individuals, but with families, not with single human beings, but groups. even when the law of the state has succeeded in permeating the small circles of kindred into which it had originally no means of penetrating, the view it takes of individuals is curiously different from that taken by jurisprudence in its maturest stage. the life of each citizen is not regarded as limited by birth and death; it is but a continuation of the existence of his forefathers, and it will be prolonged in the existence of his descendants. the roman distinction between the law of persons and the law of things, which though extremely convenient is entirely artificial, has evidently done much to divert inquiry on the subject before us from the true direction. the lessons learned in discussing the jus personarum have been forgotten where the jus rerum is reached, and property, contract, and delict, have been considered as if no hints concerning their original nature were to be gained from the facts ascertained respecting the original condition of persons. the futility of this method would be manifest if a system of pure archaic law could be brought before us, and if the experiment could be tried of applying to it the roman classifications. it would soon be seen that the separation of the law of persons from that of things has no meaning in the infancy of law, that the rules belonging to the two departments are inextricably mingled together, and that the distinctions of the later jurists are appropriate only to the later jurisprudence. from what has been said in the earlier portions of this treatise, it will be gathered that there is a strong _à priori_ improbability of our obtaining any clue to the early history of property, if we confine our notice to the proprietary rights of individuals. it is more than likely that joint-ownership, and not separate ownership, is the really archaic institution, and that the forms of property which will afford us instruction will be those which are associated with the rights of families and of groups of kindred. the roman jurisprudence will not here assist in enlightening us, for it is exactly the roman jurisprudence which, transformed by the theory of natural law, has bequeathed to the moderns the impression that individual ownership is the normal state of proprietary right, and that ownership in common by groups of men is only the exception to a general rule. there is, however, one community which will always be carefully examined by the inquirer who is in quest of any lost institution of primeval society. how far soever any such institution may have undergone change among the branch of the indo-european family which has been settled for ages in india, it will seldom be found to have entirely cast aside the shell in which it was originally reared. it happens that, among the hindoos, we do find a form of ownership which ought at once to rivet our attention from its exactly fitting in with the ideas which our studies in the law of persons would lead us to entertain respecting the original condition of property. the village community of india is at once an organised patriarchal society and an assemblage of co-proprietors. the personal relations to each other of the men who compose it are indistinguishably confounded with their proprietary rights, and to the attempts of english functionaries to separate the two may be assigned some of the most formidable miscarriages of anglo-indian administration. the village community is known to be of immense antiquity. in whatever direction research has been pushed into indian history, general or local, it has always found the community in existence at the farthest point of its progress. a great number of intelligent and observant writers, most of whom had no theory of any sort to support concerning its nature and origin, agree in considering it the least destructible institution of a society which never willingly surrenders any one of its usages to innovation. conquests and revolutions seem to have swept over it without disturbing or displacing it, and the most beneficent systems of government in india have always been those which have recognised it as the basis of administration. the mature roman law, and modern jurisprudence following in its wake, look upon co-ownership as an exceptional and momentary condition of the rights of property. this view is clearly indicated in the maxim which obtains universally in western europe, _nemo in communione potest invitus detineri_ ("no one can be kept in co-proprietorship against his will"). but in india this order of ideas is reversed, and it may be said that separate proprietorship is always on its way to become proprietorship in common. the process has been adverted to already. as soon as a son is born, he acquires a vested interest in his father's substance, and on attaining years of discretion he is even, in certain contingencies, permitted by the letter of the law to call for a partition of the family estate. as a fact, however, a division rarely takes place even at the death of the father, and the property constantly remains undivided for several generations, though every member of every generation has a legal right to an undivided share in it. the domain thus held in common is sometimes administered by an elected manager, but more generally, and in some provinces always, it is managed by the eldest agnate, by the eldest representative of the eldest line of the stock. such an assemblage of joint proprietors, a body of kindred holding a domain in common, is the simplest form of an indian village community, but the community is more than a brotherhood of relatives and more than an association of partners. it is an organised society, and besides providing for the management of the common fund, it seldom fails to provide, by a complete staff of functionaries, for internal government, for police, for the administration of justice, and for the apportionment of taxes and public duties. the process which i have described as that under which a village community is formed, may be regarded as typical. yet it is not to be supposed that every village community in india drew together in so simple a manner. although, in the north of india, the archives, as i am informed, almost invariably show that the community was founded by a single assemblage of blood-relations, they also supply information that men of alien extraction have always, from time to time, been engrafted on it, and a mere purchaser of a share may generally, under certain conditions, be admitted to the brotherhood. in the south of the peninsula there are often communities which appear to have sprung not from one but from two or more families; and there are some whose composition is known to be entirely artificial; indeed, the occasional aggregation of men of different castes in the same society is fatal to the hypothesis of a common descent. yet in all these brotherhoods either the tradition is preserved, or the assumption made, of an original common parentage. mountstuart elphinstone, who writes more particularly of the southern village communities, observes of them (_history of india_, i. ): "the popular notion is that the village landholders are all descended from one or more individuals who settled the village; and that the only exceptions are formed by persons who have derived their rights by purchase or otherwise from members of the original stock. the supposition is confirmed by the fact that, to this day, there are only single families of landholders in small villages and not many in large ones; but each has branched out into so many members that it is not uncommon for the whole agricultural labour to be done by the landholders, without the aid either of tenants or of labourers. the rights of the landholders are theirs collectively and, though they almost always have a more or less perfect partition of them, they never have an entire separation. a landholder, for instance, can sell or mortgage his rights; but he must first have the consent of the village, and the purchaser steps exactly into his place and takes up all his obligations. if a family becomes extinct, its share returns to the common stock." some considerations which have been offered in the fifth chapter of this volume will assist the reader, i trust, in appreciating the significance of elphinstone's language. no institution of the primitive world is likely to have been preserved to our day, unless it has acquired an elasticity foreign to its original nature through some vivifying legal fiction. the village community then is not necessarily an assemblage of blood-relations, but it is _either_ such an assemblage _or_ a body of co-proprietors formed on the model of an association of kinsmen. the type with which it should be compared is evidently not the roman family, but the roman gens or house. the gens was also a group on the model of the family; it was the family extended by a variety of fictions of which the exact nature was lost in antiquity. in historical times, its leading characteristics were the very two which elphinstone remarks in the village community. there was always the assumption of a common origin, an assumption sometimes notoriously at variance with fact; and, to repeat the historian's words, "if a family became extinct, its share returned to the common stock." in old roman law, unclaimed inheritances escheated to the gentiles. it is further suspected by all who have examined their history that the communities, like the gentes, have been very generally adulterated by the admission of strangers, but the exact mode of absorption cannot now be ascertained. at present, they are recruited, as elphinstone tells us, by the admission of purchasers, with the consent of the brotherhood. the acquisition of the adopted member is, however, of the nature of a universal succession; together with the share he has bought, he succeeds to the liabilities which the vendor had incurred towards the aggregate group. he is an emptor familiæ, and inherits the legal clothing of the person whose place he begins to fill. the consent of the whole brotherhood required for his admission may remind us of the consent which the comitia curiata, the parliament of that larger brotherhood of self-styled kinsmen, the ancient roman commonwealth, so strenuously insisted on as essential to the legalisation of an adoption or the confirmation of a will. the tokens of an extreme antiquity are discoverable in almost every single feature of the indian village communities. we have so many independent reasons for suspecting that the infancy of law is distinguished by the prevalence of co-ownership by the intermixture of personal with proprietary rights, and by the confusion of public with private duties, that we should be justified in deducing many important conclusions from our observation of these proprietary brotherhoods, even if no similarly compounded societies could be detected in any other part of the world. it happens, however, that much earnest curiosity has been very recently attracted to a similar set of phenomena in those parts of europe which have been most slightly affected by the feudal transformation of property, and which in many important particulars have as close an affinity with the eastern as with the western world. the researches of m. de haxthausen, m. tengoborski, and others, have shown us that the russian villages are not fortuitous assemblages of men, nor are they unions founded on contract; they are naturally organised communities like those of india. it is true that these villages are always in theory the patrimony of some noble proprietor and the peasants have within historical times been converted into the predial, and to a great extent into the personal, serfs of the seignior. but the pressure of this superior ownership has never crushed the ancient organisation of the village, and it is probable that the enactment of the czar of russia, who is supposed to have introduced serfdom, was really intended to prevent the peasants from abandoning that co-operation without which the old social order could not long be maintained. in the assumption of an agnatic connection between the villagers, in the blending of personal rights with privileges of ownership, and in a variety of spontaneous provisions for internal administration, the russian village appears to be a nearly exact repetition of the indian community; but there is one important difference which we note with the greatest interest. the co-owners of an indian village, though their property is blended, have their rights distinct, and this separation of rights is complete and continues indefinitely. the severance of rights is also theoretically complete in a russian village, but there it is only temporary. after the expiration of a given, but not in all cases of the same, period separate ownerships are extinguished, the land of the village is thrown into a mass, and then it is re-distributed among the families composing the community, according to their number. this repartition having been effected, the rights of families and of individuals are again allowed to branch out into various lines, which they continue to follow till another period of division comes round. an even more curious variation from this type of ownership occurs in some of those countries which long formed a debateable land between the turkish empire and the possessions of the house of austria. in servia, in croatia, and the austrian sclavonia, the villages are also brotherhoods of persons who are at once co-owners and kinsmen; but there the internal arrangements of the community differ from those adverted to in the last two examples. the substance of the common property is in this case neither divided in practice nor considered in theory as divisible, but the entire land is cultivated by the combined labour of all the villagers, and the produce is annually distributed among the households, sometimes according to their supposed wants, sometimes according to rules which give to particular persons a fixed share of the usufruct. all these practices are traced by the jurists of the east of europe to a principle which is asserted to be found in the earliest sclavonian laws, the principle that the property of families cannot be divided for a perpetuity. the great interest of these phenomena in an inquiry like the present arises from the light they throw on the development of distinct proprietary rights _inside_ the groups by which property seems to have been originally held. we have the strongest reason for thinking that property once belonged not to individuals nor even to isolated families, but to larger societies composed on the patriarchal model; but the mode of transition from ancient to modern ownerships, obscure at best, would have been infinitely obscurer if several distinguishable forms of village communities had not been discovered and examined. it is worth while to attend to the varieties of internal arrangement within the patriarchal groups which are, or were till recently, observable among races of indo-european blood. the chiefs of the ruder highland clans used, it is said, to dole out food to the heads of the households under their jurisdiction at the very shortest intervals, and sometimes day by day. a periodical distribution is also made to the sclavonian villagers of the austrian and turkish provinces by the elders of their body, but then it is a distribution once for all of the total produce of the year. in the russian villages, however, the substance of the property ceases to be looked upon as indivisible, and separate proprietary claims are allowed freely to grow up, but then the progress of separation is peremptorily arrested after it has continued a certain time. in india, not only is there no indivisibility of the common fund, but separate proprietorship in parts of it may be indefinitely prolonged and may branch out into any number of derivative ownerships, the _de facto_ partition of the stock being, however, checked by inveterate usage, and by the rule against the admission of strangers without the consent of the brotherhood. it is not of course intended to insist that these different forms of the village community represent distinct stages in a process of transmutation which has been everywhere accomplished in the same manner. but, though the evidence does not warrant our going so far as this, it renders less presumptuous the conjecture that private property, in the shape in which we know it, was chiefly formed by the gradual disentanglement of the separate rights of individuals from the blended rights of a community. our studies in the law of persons seemed to show us the family expanding into the agnatic group of kinsmen, then the agnatic group dissolving into separate households; lastly the household supplanted by the individual; and it is now suggested that each step in the change corresponds to an analogous alteration in the nature of ownership. if there be any truth in the suggestion, it is to be observed that it materially affects the problem which theorists on the origin of property have generally proposed to themselves. the question--perhaps an insoluble one--which they have mostly agitated is, what were the motives which first induced men to respect each other's possessions? it may still be put, without much hope of finding an answer to it, in the form of any inquiry into the reasons which led one composite group to keep aloof from the domain of another. but, if it be true that far the most important passage in the history of private property is its gradual elimination from the co-ownership of kinsmen, then the great point of inquiry is identical with that which lies on the threshold of all historical law--what were the motives which originally prompted men to hold together in the family union? to such a question, jurisprudence, unassisted by other sciences, is not competent to give a reply. the fact can only be noted. the undivided state of property in ancient societies is consistent with a peculiar sharpness of division, which shows itself as soon as any single share is completely separated from the patrimony of the group. this phenomenon springs, doubtless, from the circumstance that the property is supposed to become the domain of a new group, so that any dealing with it, in its divided state, is a transaction between two highly complex bodies. i have already compared ancient law to modern international law, in respect of the size and complexity of the corporate associations, whose rights and duties it settles. as the contracts and conveyances known to ancient law are contracts and conveyances to which not single individuals, but organised companies of men, are parties, they are in the highest degree ceremonious; they require a variety of symbolical acts and words intended to impress the business on the memory of all who take part in it; and they demand the presence of an inordinate number of witnesses. from these peculiarities, and others allied to them, springs the universally unmalleable character of the ancient forms of property. sometimes the patrimony of the family is absolutely inalienable, as was the case with the sclavonians, and still oftener, though alienations may not be entirely illegitimate, they are virtually impracticable, as among most of the germanic tribes, from the necessity of having the consent of a large number of persons to the transfer. where these impediments do not exist, or can be surmounted, the act of conveyance itself is generally burdened with a perfect load of ceremony, in which not one iota can be safely neglected. ancient law uniformly refuses to dispense with a single gesture, however grotesque; with a single syllable, however its meaning may have been forgotten; with a single witness, however superfluous may be his testimony. the entire solemnities must be scrupulously completed by persons legally entitled to take part in them, or else the conveyance is null, and the seller is re-established in the rights of which he had vainly attempted to divest himself. these various obstacles to the free circulation of the objects of use and enjoyment, begin of course to make themselves felt as soon as society has acquired even a slight degree of activity, and the expedients by which advancing communities endeavour to overcome them form the staple of the history of property. of such expedients there is one which takes precedence of the rest from its antiquity and universality. the idea seems to have spontaneously suggested itself to a great number of early societies, to classify property into kinds. one kind or sort of property is placed on a lower footing of dignity than the others, but at the same time is relieved from the fetters which antiquity has imposed on them. subsequently, the superior convenience of the rules governing the transfer and descent of the lower order of property becomes generally recognised, and by a gradual course of innovation the plasticity of the less dignified class of valuable objects is communicated to the classes which stand conventionally higher. the history of roman property law is the history of the assimilation of res mancipi to res nec mancipi. the history of property on the european continent is the history of the subversion of the feudalised law of land by the romanised law of moveables; and, though the history of ownership in england is not nearly completed, it is visibly the law of personalty which threatens to absorb and annihilate the law of realty. the only _natural_ classification of the objects of enjoyment, the only classification which corresponds with an essential difference in the subject-matter, is that which divides them into moveables and immoveables. familiar as is this classification to jurisprudence, it was very slowly developed by roman law, from which we inherit it, and was only finally adopted by it in its latest stage. the classifications of ancient law have sometimes a superficial resemblance to this. they occasionally divide property into categories, and place immoveables in one of them; but then it is found that they either class along with immoveables a number of objects which have no sort of relation with them, or else divorce them from various rights to which they have a close affinity. thus, the res mancipi of roman law included not only land, but slaves, horses, and oxen. scottish law ranks with land a certain class of securities, and hindoo law associates it with slaves. english law, on the other hand, parts leases of land for years from other interests in the soil, and joins them to personalty under the name of chattels real. moreover, the classifications of ancient law are classifications implying superiority and inferiority; while the distinction between moveables and immoveables, so long at least as it was confined to roman jurisprudence, carried with it no suggestion whatever of a difference in dignity. the res mancipi, however, did certainly at first enjoy a precedence over the res nec mancipi, as did heritable property in scotland and realty in england, over the personalty to which they were opposed. the lawyers of all systems have spared no pains in striving to refer these classifications to some intelligible principle; but the reasons of the severance must ever be vainly sought for in the philosophy of law: they belong not to its philosophy, but to its history. the explanation which appears to cover the greatest number of instances is, that the objects of enjoyment honoured above the rest were the forms of property known first and earliest to each particular community, and dignified therefore emphatically with the designation of _property_. on the other hand, the articles not enumerated among the favoured objects seem to have been placed on a lower standing, because the knowledge of their value was posterior to the epoch at which the catalogue of superior property was settled. they were at first unknown, rare, limited in their uses, or else regarded as mere appendages to the privileged objects. thus, though the roman res mancipi included a number of moveable articles of great value, still the most costly jewels were never allowed to take rank as res mancipi, because they were unknown to the early romans. in the same way chattels real in england are said to have been degraded to the footing of personalty, from the infrequency and valuelessness of such estates under the feudal land-law. but the grand point of interest is, the continued degradation of these commodities when their importance had increased and their number had multiplied. why were they not successively included among the favoured objects of enjoyment? one reason is found in the stubbornness with which ancient law adheres to its classifications. it is a characteristic both of uneducated minds and of early societies, that they are little able to conceive a general rule apart from the particular applications of it with which they are practically familiar. they cannot dissociate a general term or maxim from the special examples which meet them in daily experience; and in this way the designation covering the best-known forms of property is denied to articles which exactly resemble them in being objects of enjoyment and subjects of right. but to these influences, which exert peculiar force in a subject-matter so stable as that of law, are afterwards added others more consistent with progress in enlightenment and in the conceptions of general expediency. courts and lawyers become at last alive to the inconvenience of the embarrassing formalities required for the transfer, recovery, or devolution of the favoured commodities, and grow unwilling to fetter the newer descriptions of property with the technical trammels which characterised the infancy of law. hence arises a disposition to keep these last on a lower grade in the arrangements of jurisprudence, and to permit their transfer by simpler processes than those which, in archaic conveyances, serve as stumbling-blocks to good faith and stepping-stones to fraud. we are perhaps in some danger of underrating the inconveniences of the ancient modes of transfer. our instruments of conveyance are written, so that their language, well pondered by the professional draftsman, is rarely defective in accuracy. but an ancient conveyance was not written, but _acted_. gestures and words took the place of written technical phraseology, and any formula mispronounced, or symbolical act omitted, would have vitiated the proceeding as fatally as a material mistake in stating the uses or setting out the remainders would, two hundred years ago, have vitiated an english deed. indeed, the mischiefs of the archaic ceremonial are even thus only half stated. so long as elaborate conveyances, written or acted, are required for the alienation of _land_ alone, the chances of mistake are not considerable in the transfer of a description of property which is seldom got rid of with much precipitation. but the higher class of property in the ancient world comprised not only land but several of the commonest and several of the most valuable moveables. when once the wheels of society had begun to move quickly, there must have been immense inconvenience in demanding a highly intricate form of transfer for a horse or an ox, or for the most costly chattel of the old world--the slave. such commodities must have been constantly and even ordinarily conveyed with incomplete forms, and held, therefore, under imperfect titles. the res mancipi of old roman law were land--in historical times, land on italian soil,--slaves and beasts of burden, such as horses and oxen. it is impossible to doubt that the objects which make up the class are the instruments of agricultural labour, the commodities of first consequence to a primitive people. such commodities were at first, i imagine, called emphatically things or property, and the mode of conveyance by which they were transferred was called a mancipium or mancipation; but it was not probably till much later that they received the distinctive appellation of res mancipi, "things which require a mancipation." by their side there may have existed or grown up a class of objects, for which it was not worth while to insist upon the full ceremony of mancipation. it would be enough if, in transferring these last from owner to owner, a part only of the ordinary formalities were proceeded with, namely, that actual delivery, physical transfer, or _tradition_, which is the most obvious index of a change of proprietorship. such commodities were the res nec mancipi of the ancient jurisprudence, "things which did not require a mancipation," little prized probably at first, and not often passed from one group of proprietors to another, while, however, the list of the res mancipi was irrevocably closed; that of the res nec mancipi admitted of indefinite expansion; and hence every fresh conquest of man over material nature added an item to the res nec mancipi, or effected an improvement in those already recognised. insensibly, therefore, they mounted to an equality with the res mancipi, and the impression of an intrinsic inferiority being thus dissipated, men began to observe the manifold advantages of the simple formality which accompanied their transfer over the more intricate and more venerable ceremonial. two of the agents of legal amelioration, fictions and equity, were assiduously employed by the roman lawyers to give the practical effects of a mancipation to a tradition: and, though roman legislators long shrank from enacting that the right of property in a res mancipi should be immediately transferred by bare delivery of the article, yet even this step was at last ventured upon by justinian, in whose jurisprudence the difference between res mancipi and res nec mancipi disappears, and tradition or delivery becomes the one great conveyance known to the law. the marked preference which the roman lawyers very early gave to tradition caused them to assign it a place in their theory which has helped to blind their modern disciples to its true history. it was classed among the "natural" modes of acquisition, both because it was generally practised among the italian tribes, and because it was a process which attained its object by the simplest mechanism. if the expressions of the jurisconsults be pressed, they undoubtedly imply that tradition, which belongs to the law natural, is more ancient than mancipation, which is an institution of civil society; and this, i need not say, is the exact reverse of the truth. the distinction between res mancipi and res nec mancipi is the type of a class of distinctions to which civilisation is much indebted, distinctions which run through the whole mass of commodities, placing a few of them in a class by themselves, and relegating the others to a lower category. the inferior kinds of property are first, from disdain and disregard, released from the perplexed ceremonies in which primitive law delights, and thus afterwards, in another state of intellectual progress, the simple methods of transfer and recovery which have been allowed to come into use serve as a model which condemns by its convenience and simplicity the cumbrous solemnities inherited from ancient days. but, in some societies, the trammels in which property is tied up are much too complicated and stringent to be relaxed in so easy a manner. whenever male children have been born to a hindoo, the law of india, as i have stated, gives them all an interest in his property, and makes their consent a necessary condition of its alienation. in the same spirit, the general usage of the old germanic peoples--it is remarkable that the anglo-saxon customs seem to have been an exception--forbade alienations without the consent of the male children; and the primitive law of the sclavonians even prohibited them altogether. it is evident that such impediments as these cannot be overcome by a distinction between kinds of property, inasmuch as the difficulty extends to commodities of all sorts; and accordingly, ancient law, when once launched on a course of improvement, encounters them with a distinction of another character, a distinction classifying property, not according to its nature but according to its origin. in india, where there are traces of both systems of classification, the one which we are considering is exemplified in the difference which hindoo law establishes between inheritances and acquisitions. the inherited property of the father is shared by the children as soon as they are born; but according to the custom of most provinces, the acquisitions made by him during his lifetime are wholly his own, and can be transferred by him at pleasure. a similar distinction was not unknown to roman law, in which the earliest innovation on the parental powers took the form of a permission given to the son to keep for himself whatever he might have acquired in military service. but the most extensive use ever made of this mode of classification appears to have been among the germans. i have repeatedly stated that the _allod_, though not inalienable, was commonly transferable with the greatest difficulty; and moreover, it descended exclusively to the agnatic kindred. hence an extraordinary variety of distinctions came to be recognised, all intended to diminish the inconveniences inseparable from allodial property. the _wehrgeld_, for example, or composition for the homicide of a relative, which occupies so large a space in german jurisprudence, formed no part of the family domain, and descended according to rules of succession altogether different. similarly, the _reipus_, or fine leviable on the re-marriage of a widow, did not enter into the _allod_ of the person to whom it was paid, and followed a line of devolution in which the privileges of the agnates were neglected. the law, too, as among the hindoos, distinguished the acquisitions of the chief of the household from his inherited property, and permitted him to deal with them under much more liberal conditions. classifications of the other sort were also admitted, and the familiar distinction drawn between land and moveables; but moveable property was divided into several subordinate categories, to each of which different rules applied. this exuberance of classification, which may strike us as strange in so rude a people as the german conquerors of the empire, is doubtless to be explained by the presence in their systems of a considerable element of roman law, absorbed by them during their long sojourn on the confines of the roman dominion. it is not difficult to trace a great number of the rules governing the transfer and devolution of the commodities which lay outside the _allod_, to their source in roman jurisprudence, from which they were probably borrowed at widely distant epochs, and in fragmentary importations. how far the obstacles to the free circulation of property were surmounted by such contrivances, we have not the means even of conjecturing, for the distinctions adverted to have no modern history. as i before explained, the allodial form of property was entirely lost in the feudal, and when the consolidation of feudalism was once completed, there was practically but one distinction left standing of all those which had been known to the western world--the distinction between land and goods, immoveables and moveables. externally this distinction was the same with that which roman law had finally accepted, but the law of the middle ages differed from that of rome in distinctly considering immoveable property to be more dignified than moveable. yet this one sample is enough to show the importance of the class of expedients to which it belongs. in all the countries governed by systems based on the french codes, that is, through much the greatest part of the continent of europe, the law of moveables, which was always roman law, has superseded and annulled the feudal law of land. england is the only country of importance in which this transmutation, though it has gone some way, is not nearly accomplished. our own, too, it may be added, is the only considerable european country in which the separation of moveables from immoveables has been somewhat disturbed by the same influences which caused the ancient classifications to depart from the only one which is countenanced by nature. in the main, the english distinction has been between land and goods; but a certain class of goods have gone as heir-looms with the land, and a certain description of interests in land have from historical causes been ranked with personalty. this is not the only instance in which english jurisprudence, standing apart from the main current of legal modification, has reproduced phenomena of archaic law. i proceed to notice one or two more contrivances by which the ancient trammels of proprietary right were more or less successfully relaxed, premising that the scheme of this treatise only permits me to mention those which are of great antiquity. on one of them in particular it is necessary to dwell for a moment or two, because persons unacquainted with the early history of law will not be easily persuaded that a principle, of which modern jurisprudence has very slowly and with the greatest difficulty obtained the recognition, was really familiar to the very infancy of legal science. there is no principle in all law which the moderns, in spite of its beneficial character, have been so loath to adopt and to carry to its legitimate consequences as that which was known to the romans as usucapion, and which has descended to modern jurisprudence under the name of prescription. it was a positive rule of the oldest roman law, a rule older than the twelve tables, that commodities which had been uninterruptedly possessed for a certain period became the property of the possessor. the period of possession was exceedingly short--one or two years according to the nature of the commodities--and in historical times usucapion was only allowed to operate when possession had commenced in a particular way; but i think it likely that at a less advanced epoch possession was converted into ownership under conditions even less severe than we read of in our authorities. as i have said before, i am far from asserting that the respect of men for _de facto_ possession is a phenomenon which jurisprudence can account for by itself, but it is very necessary to remark that primitive societies, in adopting the principle of usucapion, were not beset with any of the speculative doubts and hesitations which have impeded its reception among the moderns. prescriptions were viewed by the modern lawyers, first with repugnance, afterwards with reluctant approval. in several countries, including our own, legislation long declined to advance beyond the rude device of barring all actions based on a wrong which had been suffered earlier than a fixed point of time in the past, generally the first year of some preceding reign; nor was it till the middle ages had finally closed, and james the first had ascended the throne of england, that we obtained a true statute of limitation of a very imperfect kind. this tardiness in copying one of the most famous chapters of roman law, which was no doubt constantly read by the majority of european lawyers, the modern world owes to the influence of the canon law. the ecclesiastical customs out of which the canon law grew, concerned as they were with sacred or quasi-sacred interests, very naturally regarded the privileges which they conferred as incapable of being lost through disuse however prolonged; and in accordance with this view, the spiritual jurisprudence, when afterwards consolidated, was distinguished by a marked leaning against prescriptions. it was the fate of the canon law, when held up by the clerical lawyers as a pattern to secular legislation, to have a peculiar influence on first principles. it gave to the bodies of custom which were formed throughout europe far fewer express rules than did the roman law, but then it seems to have communicated a bias to professional opinion on a surprising number of fundamental points, and the tendencies thus produced progressively gained strength as each system was developed. one of the dispositions it produced was a disrelish for prescriptions; but i do not know that this prejudice would have operated as powerfully as it has done, if it had not fallen in with the doctrine of the scholastic jurists of the realist sect, who taught that, whatever turn actual legislation might take, a _right_, how long soever neglected, was in point of fact indestructible. the remains of this state of feeling still exist. wherever the philosophy of law is earnestly discussed, questions respecting the speculative basis of prescription are always hotly disputed; and it is still a point of the greatest interest in france and germany, whether a person who has been out of possession for a series of years is deprived of his ownership as a penalty for his neglect, or loses it through the summary interposition of the law in its desire to have a _finis litium_. but no such scruples troubled the mind of early roman society. their ancient usages directly took away the ownership of everybody who had been out of possession, under certain circumstances, during one or two years. what was the exact tenor of the rule of usucapion in its earliest shape, it is not easy to say; but, taken with the limitations which we find attending it in the books, it was a most useful security against the mischiefs of a too cumbrous system of conveyance. in order to have the benefit of usucapion, it was necessary that the adverse possession should have begun in good faith, that is, with belief on the part of the possessor that he was lawfully acquiring the property, and it was farther required that the commodity should have been transferred to him by some mode of alienation which, however unequal to conferring a complete title in the particular case, was at least recognised by the law. in the case therefore of a mancipation, however slovenly the performance might have been, yet if it had been carried so far as to involve a tradition or delivery, the vice of the title would be cured by usucapion in two years at most. i know nothing in the practice of the romans which testifies so strongly to their legal genius as the use which they made of usucapion. the difficulties which beset them were nearly the same with those which embarrassed and still embarrass the lawyers of england. owing to the complexity of their system, which as yet they had neither the courage nor the power to reconstruct, actual right was constantly getting divorced from technical right, the equitable ownership from the legal. but usucapion, as manipulated by the jurisconsults, supplied a self-acting machinery, by which the defects of titles to property were always in course of being cured, and by which the ownerships that were temporarily separated were again rapidly cemented together with the briefest possible delay. usucapion did not lose its advantages till the reforms of justinian. but as soon as law and equity had been completely fused, and when mancipation ceased to be the roman conveyance, there was no further necessity for the ancient contrivance, and usucapion, with its periods of time considerably lengthened, became the prescription which has at length been adopted by nearly all systems of modern law. i pass by with brief mention another expedient having the same object with the last, which, though it did not immediately make its appearance in english legal history, was of immemorial antiquity in roman law; such indeed is its apparent age that some german civilians, not sufficiently aware of the light thrown on the subject by the analogies of english law, have thought it even older than the mancipation. i speak of the cessio in jure, a collusive recovery, in a court of law, of property sought to be conveyed. the plaintiff claimed the subject of this proceeding with the ordinary forms of a litigation; the defendant made default; and the commodity was of course adjudged to the plaintiff. i need scarcely remind the english lawyer that this expedient suggested itself to our forefathers, and produced those famous fines and recoveries which did so much to undo the harshest trammels of the feudal land-law. the roman and english contrivances have very much in common and illustrate each other most instructively, but there is this difference between them, that the object of the english lawyers was to remove complications already introduced into the title, while the roman jurisconsults sought to prevent them by substituting a mode of transfer necessarily unimpeachable for one which too often miscarried. the device is, in fact, one which suggests itself as soon as courts of law are in steady operation, but are nevertheless still under the empire of primitive notions. in an advanced state of legal opinion, tribunals regard collusive litigation as an abuse of their procedure; but there has always been a time when, if their forms were scrupulously complied with, they never dreamed of looking further. the influence of courts of law and of their procedure upon property has been most extensive, but the subject is too large for the dimensions of this treatise, and would carry us further down the course of legal history than is consistent with its scheme. it is desirable, however, to mention, that to this influence we must attribute the importance of the distinction between property and possession--not, indeed, the distinction itself, which (in the language of an eminent english civilian) is the same thing as the distinction between the legal right to act upon a thing and the physical power to do so--but the extraordinary importance which the distinction has obtained in the philosophy of law. few educated persons are so little versed in legal literature as not to have heard that the language of the roman jurisconsults on the subject of possession long occasioned the greatest possible perplexity, and that the genius of savigny is supposed to have chiefly proved itself by the solution which he discovered for the enigma. possession, in fact, when employed by the roman lawyers, appears to have contracted a shade of meaning not easily accounted for. the word, as appears from its etymology, must have originally denoted physical contact or physical contact resumeable at pleasure; but, as actually used without any qualifying epithet, it signifies not simply physical detention, but physical detention coupled with the intention to hold the thing detained as one's own. savigny, following niebuhr, perceived that for this anomaly there could only be a historical origin. he pointed out that the patrician burghers of rome, who had become tenants of the greatest part of the public domain at nominal rents, were, in the view of the old roman law, mere possessors, but then they were possessors intending to keep their land against all comers. they, in truth, put forward a claim almost identical with that which has recently been advanced in england by the lessees of church lands. admitting that in theory they were the tenants-at-will of the state, they contended that time and undisturbed enjoyment had ripened their holding into a species of ownership, and that it would be unjust to eject them for the purpose of redistributing the domain. the association of this claim with the patrician tenancies, permanently influenced the sense of "possession." meanwhile the only legal remedies of which the tenants could avail themselves, if ejected or threatened with disturbance, were the possessory interdicts, summary processes of roman law which were either expressly devised by the prætor for their protection, or else, according to another theory, had in older times been employed for the provisional maintenance of possessions pending the settlement of questions of legal right. it came, therefore, to be understood that everybody who possessed property _as his own_ had the power of demanding the interdicts, and, by a system of highly artificial pleading, the interdictal process was moulded into a shape fitted for the trial of conflicting claims to a disputed possession. then commenced a movement which, as mr. john austin pointed out, exactly reproduced itself in english law. proprietors, _domini_, began to prefer the simpler forms or speedier course of the interdict to the lagging and intricate formalities of the real action, and for the purpose of availing themselves of the possessory remedy fell back upon the possession which was supposed to be involved in their proprietorship. the liberty conceded to persons who were not true possessors, but owners, to vindicate their rights by possessory remedies, though it may have been at first a boon, had ultimately the effect of seriously deteriorating both english and roman jurisprudence. the roman law owes to it those subtleties on the subject of possession which have done so much to discredit it, while english law, after the actions which it appropriated to the recovery of real property had fallen into the most hopeless confusion, got rid at last of the whole tangled mass by a heroic remedy. no one can doubt that the virtual abolition of the english real actions which took place nearly thirty years since was a public benefit, but still persons sensitive to the harmonies of jurisprudence will lament that, instead of cleansing, improving, and simplifying the true proprietary actions, we sacrificed them all to the possessory action of ejectment, thus basing our whole system of land recovery upon a legal fiction. legal tribunals have also powerfully assisted to shape and modify conceptions of proprietary right by means of the distinction between law and equity, which always makes its first appearance as a distinction between jurisdictions. equitable property in england is simply property held under the jurisdiction of the court of chancery. at rome, the prætor's edict introduced its novel principles in the guise of a promise that under certain circumstances a particular action or a particular plea would be granted; and, accordingly, the property _in bonis_, or equitable property, of roman law was property exclusively protected by remedies which had their source in the edict. the mechanism by which equitable rights were saved from being overridden by the claims of the legal owner was somewhat different in the two systems. with us their independence is secured by the injunction of the court of chancery. since however law and equity, while not as yet consolidated, were administered under the roman system by the same court, nothing like the injunction was required, and the magistrate took the simpler course of refusing to grant to the civil law owner those actions and pleas by which alone he could obtain the property that belonged in equity to another. but the practical operation of both systems was nearly the same. both, by means of a distinction in procedure, were able to preserve new forms of property in a sort of provisional existence, until the time should come when they were recognised by the whole law. in this way, the roman prætor gave an immediate right of property to the person who had acquired a res mancipi by mere delivery, without waiting for the ripening of usucapion. similarly he in time recognised an ownership in the mortgagee who had at first been a mere "bailee" or depositary, and in the emphyteuta, or tenant of land which was subject to a fixed perpetual rent. following a parallel line of progress, the english court of chancery created a special proprietorship for the mortgagor, for the cestui que trust, for the married woman who had the advantage of a particular kind of settlement, and for the purchaser who had not yet acquired a complete legal ownership. all these are examples in which forms of proprietory right, distinctly new, were recognised and preserved. but indirectly property has been affected in a thousand ways by equity both in england and at rome. into whatever corner of jurisprudence its authors pushed the powerful instrument in their command, they were sure to meet, and touch, and more or less materially modify the law of property. when in the preceding pages i have spoken of certain ancient legal distinctions and expedients as having powerfully affected the history of ownership, i must be understood to mean that the greatest part of their influence has arisen from the hints and suggestions of improvement infused by them into the mental atmosphere which was breathed by the fabricators of equitable systems. but to describe the influence of equity on ownership would be to write its history down to our own days. i have alluded to it principally because several esteemed contemporary writers have thought that in the roman severance of equitable from legal property we have the clue to that difference in the conception of ownership, which apparently distinguishes the law of the middle ages from the law of the roman empire. the leading characteristic of the feudal conception is its recognition of a double proprietorship, the superior ownership of the lord of the fief co-existing with the inferior property or estate of the tenant. now, this duplication of proprietary right looks, it is urged, extremely like a generalised form of the roman distribution of rights over property into _quiritarian_ or legal, and (to use a word of late origin) _bonitarian_ or equitable. gaius himself observes upon the splitting of _dominion_ into two parts as a singularity of roman law, and expressly contrasts it with the entire or allodial ownership to which other nations were accustomed. justinian, it is true, re-consolidated dominion into one, but then it was the partially reformed system of the western empire, and not justinian's jurisprudence, with which the barbarians were in contact during so many centuries. while they remained poised on the edge of the empire, it may well be that they learned this distinction, which afterwards bore remarkable fruit. in favour of this theory, it must at all events be admitted that the element of roman law in the various bodies of barbarian custom has been very imperfectly examined. the erroneous or insufficient theories which have served to explain feudalism resemble each other in their tendency to draw off attention from this particular ingredient in its texture. the older investigators, who have been mostly followed in this country, attached an exclusive importance to the circumstances of the turbulent period during which the feudal system grew to maturity; and in later times a new source of error has been added to those already existing, in that pride of nationality which has led german writers to exaggerate the completeness of the social fabric which their forefathers had built up before their appearance in the roman world. one or two english inquirers who looked in the right quarter for the foundations of the feudal system, failed nevertheless to conduct their investigations to any satisfactory result, either from searching too exclusively for analogies in the compilations of justinian, or from confining their attention to the compendia of roman law which are found appended to some of the extant barbarian codes. but, if roman jurisprudence had any influence on the barbarous societies, it had probably produced the greatest part of its effects before the legislation of justinian, and before the preparation of these compendia. it was not the reformed and purified jurisprudence of justinian, but the undigested system which prevailed in the western empire, and which the eastern _corpus juris_ never succeeded in displacing, that i conceive to have clothed with flesh and muscle the scanty skeleton of barbarous usage. the change must be supposed to have taken place before the germanic tribes had distinctly appropriated, as conquerors, any portion of the roman dominions, and therefore long before germanic monarchs had ordered breviaries of roman law to be drawn up for the use of their roman subjects. the necessity for some such hypothesis will be felt by everybody who can appreciate the difference between archaic and developed law. rude as are the _leges barbarorum_ which remain to us, they are not rude enough to satisfy the theory of their purely barbarous origin; nor have we any reason for believing that we have received, in written records, more than a fraction of the fixed rules which were practised among themselves by the members of the conquering tribes. if we can once persuade ourselves that a considerable element of debased roman law already existed in the barbarian systems, we shall have done something to remove a grave difficulty. the german law of the conquerors and the roman law of their subjects would not have combined if they had not possessed more affinity for each other than refined jurisprudence has usually for the customs of savages. it is extremely likely that the codes of the barbarians, archaic as they seem, are only a compound of true primitive usage with half-understood roman rules, and that it was the foreign ingredient which enabled them to coalesce with a roman jurisprudence that had already receded somewhat from the comparative finish which it had acquired under the western emperors. but, though all this must be allowed, there are several considerations which render it unlikely that the feudal form of ownership was directly suggested by the roman duplication of domainial rights. the distinction between legal and equitable property strikes one as a subtlety little likely to be appreciated by barbarians; and, moreover, it can scarcely be understood unless courts of law are contemplated in regular operation. but the strongest reason against this theory is the existence in roman law of a form of property--a creation of equity, it is true--which supplies a much simpler explanation of the transition from one set of ideas to the other. this is the emphyteusis, upon which the fief of the middle ages has often been fathered, though without much knowledge of the exact share which it had in bringing feudal ownership into the world. the truth is that the emphyteusis, not probably as yet known by its greek designation, marks one stage in a current of ideas which led ultimately to feudalism. the first mention in roman history of estates larger than could be farmed by a paterfamilias, with his household of sons and slaves, occurs when we come to the holdings of the roman patricians. these great proprietors appear to have had no idea of any system of farming by free tenants. their _latifundia_ seem to have been universally cultivated by slave-gangs, under bailiffs who were themselves slaves or freedmen; and the only organisation attempted appears to have consisted in dividing the inferior slaves into small bodies, and making them the _peculium_ of the better and trustier sort, who thus acquired a kind of interest in the efficiency of their labour. this system was, however, especially disadvantageous to one class of estated proprietors, the municipalities. functionaries in italy were changed with the rapidity which often surprises us in the administration of rome herself; so that the superintendence of a large landed domain by an italian corporation must have been excessively imperfect. accordingly, we are told that with the municipalities began the practice of letting out _agri vectigules_, that is, of leasing land for a perpetuity to a free tenant, at a fixed rent, and under certain conditions. the plan was afterwards extensively imitated by individual proprietors, and the tenant, whose relation to the owner had originally been determined by his contract, was subsequently recognised by the prætor as having himself a qualified proprietorship, which in time became known as an emphyteusis. from this point the history of tenure parts into two branches. in the course of that long period during which our records of the roman empire are most incomplete, the slave-gangs of the great roman families became transformed into the _coloni_, whose origin and situation constitute one of the obscurest questions in all history. we may suspect that they were formed partly by the elevation of the slaves, and partly by the degradation of the free farmers; and that they prove the richer classes of the roman empire to have become aware of the increased value which landed property obtains when the cultivator had an interest in the produce of the land. we know that their servitude was predial; that it wanted many of the characteristics of absolute slavery, and that they acquitted their service to the landlord in rendering to him a fixed portion of the annual crop. we know further that they survived all the mutations of society in the ancient and modern worlds. though included in the lower courses of the feudal structure, they continued in many countries to render to the landlord precisely the same dues which they had paid to the roman _dominus_, and from a particular class among them, the _coloni medietarii_ who reserved half the produce for the owner, are descended the _metayer_ tenantry, who still conduct the cultivation of the soil in almost all the south of europe. on the other hand, the emphyteusis, if we may so interpret the allusions to it in the _corpus juris_, became a favourite and beneficial modification of property; and it may be conjectured that wherever free farmers existed, it was this tenure which regulated their interest in the land. the prætor, as has been said, treated the emphyteuta as a true proprietor. when ejected, he was allowed to reinstate himself by a real action, the distinctive badge of proprietory right, and he was protected from disturbance by the author of his lease so long as the _canon_, or quit-rent, was punctually paid. but at the same time it must not be supposed that the ownership of the author of the lease was either extinct or dormant. it was kept alive by a power of re-entry on nonpayment of the rent, a right of pre-emption in case of sale, and a certain control over the mode of cultivation. we have, therefore, in the emphyteusis a striking example of the double ownership which characterised feudal property, and one, moreover, which is much simpler and much more easily imitated than the juxtaposition of legal and equitable rights. the history of the roman tenure does not end, however, at this point. we have clear evidence that between the great fortresses which, disposed along the line of the rhine and danube, long secured the frontier of the empire against its barbarian neighbours, there extended a succession of strips of land, the _agri limitrophi_, which were occupied by veteran soldiers of the roman army on the terms of an emphyteusis. there was a double ownership. the roman state was landlord of the soil, but the soldiers cultivated it without disturbance so long as they held themselves ready to be called out for military service whenever the state of the border should require it. in fact, a sort of garrison-duty, under a system closely resembling that of the military colonies on the austro-turkish border, had taken the place of the quit-rent which was the service of the ordinary emphyteuta. it seems impossible to doubt that this was the precedent copied by the barbarian monarchs who founded feudalism. it had been within their view for some hundred years, and many of the veterans who guarded the border were, it is to be remembered, themselves of barbarian extraction, who probably spoke the germanic tongues. not only does the proximity of so easily followed a model explain whence the frankish and lombard sovereigns got the idea of securing the military service of their followers by granting away portions of their public domain; but it perhaps explains the tendency which immediately showed itself in the benefices to become hereditary, for an emphyteusis, though capable of being moulded to the terms of the original contract, nevertheless descended as a general rule to the heirs of the grantee. it is true that the holder of a benefice, and more recently the lord of one of those fiefs into which the benefices were transformed, appears to have owed certain services which were not likely to have been rendered by the military colonist, and were certainly not rendered by the emphyteuta. the duty of respect and gratitude to the feudal superior, the obligation to assist in endowing his daughter and equipping his son, the liability to his guardianship in minority, and many other similar incidents of tenure, must have been literally borrowed from the relations of patron and freedman under roman law, that is, of quondam-master and quondam-slave. but then it is known that the earliest beneficiaries were the personal companions of the sovereign, and it is indisputable that this position, brilliant as it seems, was at first attended by some shade of servile debasement. the person who ministered to the sovereign in his court had given up something of that absolute personal freedom which was the proudest privilege of the allodial proprietor. chapter ix the early history of contract there are few general propositions concerning the age to which we belong which seem at first sight likely to be received with readier concurrence than the assertion that the society of our day is mainly distinguished from that of preceding generations by the largeness of the sphere which is occupied in it by contract. some of the phenomena on which this proposition rests are among those most frequently singled out for notice, for comment, and for eulogy. not many of us are so unobservant as not to perceive that in innumerable cases where old law fixed a man's social position irreversibly at his birth, modern law allows him to create it for himself by convention; and indeed several of the few exceptions which remain to this rule are constantly denounced with passionate indignation. the point, for instance, which is really debated in the vigorous controversy still carried on upon the subject of negro servitude, is whether the status of the slave does not belong to bygone institutions, and whether the only relation between employer and labourer which commends itself to modern morality be not a relation determined exclusively by contract. the recognition of this difference between past ages and the present enters into the very essence of the most famous contemporary speculations. it is certain that the science of political economy, the only department of moral inquiry which has made any considerable progress in our day, would fail to correspond with the facts of life if it were not true that imperative law had abandoned the largest part of the field which it once occupied, and had left men to settle rules of conduct for themselves with a liberty never allowed to them till recently. the bias indeed of most persons trained in political economy is to consider the general truth on which their science reposes as entitled to become universal, and, when they apply it as an art, their efforts are ordinarily directed to enlarging the province of contract and to curtailing that of imperative law, except so far as law is necessary to enforce the performance of contracts. the impulse given by thinkers who are under the influence of these ideas is beginning to be very strongly felt in the western world. legislation has nearly confessed its inability to keep pace with the activity of man in discovery, in invention, and in the manipulation of accumulated wealth; and the law even of the least advanced communities tends more and more to become a mere surface-stratum having under it an ever-changing assemblage of contractual rules with which it rarely interferes except to compel compliance with a few fundamental principles or unless it be called in to punish the violation of good faith. social inquiries, so far as they depend on the consideration of legal phenomena, are in so backward a condition that we need not be surprised at not finding these truths recognised in the commonplaces which pass current concerning the progress of society. these commonplaces answer much more to our prejudices than to our convictions. the strong disinclination of most men to regard morality as advancing seems to be especially powerful when the virtues on which contract depends are in question, and many of us have almost instinctive reluctance to admitting that good faith and trust in our fellows are more widely diffused than of old, or that there is anything in contemporary manners which parallels the loyalty of the antique world. from time to time, these prepossessions are greatly strengthened by the spectacle of frauds, unheard of before the period at which they were observed, and astonishing from their complication as well as shocking from criminality. but the very character of these frauds shows clearly that, before they became possible, the moral obligations of which they are the breach must have been more than proportionately developed. it is the confidence reposed and deserved by the many which affords facilities for the bad faith of the few, so that, if colossal examples of dishonesty occur, there is no surer conclusion than that scrupulous honesty is displayed in the average of the transactions which, in the particular case, have supplied the delinquent with his opportunity. if we insist on reading the history of morality as reflected in jurisprudence, by turning our eyes not on the law of contract but on the law of crime, we must be careful that we read it aright. the only form of dishonesty treated of in the most ancient roman law is theft. at the moment at which i write, the newest chapter in the english criminal law is one which attempts to prescribe punishment for the frauds of trustees. the proper inference from this contrast is not that the primitive romans practised a higher morality than ourselves. we should rather say that, in the interval between their days and ours, morality has advanced from a very rude to a highly refined conception--from viewing the rights of property as exclusively sacred, to looking upon the rights growing out of the mere unilateral reposal of confidence as entitled to the protection of the penal law. the definite theories of jurists are scarcely nearer the truth in this point than the opinions of the multitude. to begin with the views of the roman lawyers, we find them inconsistent with the true history of moral and legal progress. one class of contracts, in which the plighted faith of the contracting parties was the only material ingredient, they specifically denominated contracts _juris gentium_, and though these contracts were undoubtedly the latest born into the roman system, the expression employed implies, if a definite meaning be extracted from it, that they were more ancient than certain other forms of engagement treated of in roman law, in which the neglect of a mere technical formality was as fatal to the obligation as misunderstanding or deceit. but then the antiquity to which they were referred was vague, shadowy, and only capable of being understood through the present; nor was it until the language of the roman lawyers became the language of an age which had lost the key to their mode of thought that a "contract of the law of nations" came to be distinctly looked upon as a contract known to man in a state of nature. rousseau adopted both the juridical and the popular error. in the dissertation on the effects of art and science upon morals, the first of his works which attracted attention and the one in which he states most unreservedly the opinions which made him the founder of a sect, the veracity and good faith attributed to the ancient persians are repeatedly pointed out as traits of primitive innocence which have been gradually obliterated by civilisation; and at a later period he found a basis for all his speculations in the doctrine of an original social contract. the social contract or compact is the most systematic form which has ever been assumed by the error we are discussing. it is a theory which, though nursed into importance by political passions, derived all its sap from the speculations of lawyers. true it certainly is that the famous englishmen, for whom it had first had attraction, valued it chiefly for its political serviceableness, but, as i shall presently attempt to explain, they would never have arrived at it, if politicians had not long conducted their controversies in legal phraseology. nor were the english authors of the theory blind to that speculative amplitude which recommended it so strongly to the frenchmen who inherited it from them. their writings show they perceived that it could be made to account for all social, quite as well as for all political phenomena. they had observed the fact, already striking in their day, that of the positive rules obeyed by men, the greater part were created by contract, the lesser by imperative law. but they were ignorant or careless of the historical relation of these two constituents of jurisprudence. it was for the purpose, therefore, of gratifying their speculative tastes by attributing all jurisprudence to a uniform source, as much as with the view of eluding the doctrines which claimed a divine parentage for imperative law, that they devised the theory that all law had its origin in contract. in another stage of thought, they would have been satisfied to leave their theory in the condition of an ingenious hypothesis or a convenient verbal formula. but that age was under the dominion of legal superstitions. the state of nature had been talked about till it had ceased to be regarded as paradoxical, and hence it seemed easy to give a fallacious reality and definiteness to the contractual origin of law by insisting on the social compact as a historical fact. our own generation has got rid of these erroneous juridical theories, partly by outgrowing the intellectual state to which they belong, and partly by almost ceasing to theorise on such subjects altogether. the favourite occupation of active minds at the present moment, and the one which answers to the speculations of our forefathers on the origin of the social state, is the analysis of society as it exists and moves before our eyes; but, through omitting to call in the assistance of history, this analysis too often degenerates into an idle exercise of curiosity, and is especially apt to incapacitate the inquirer for comprehending states of society which differ considerably from that to which he is accustomed. the mistake of judging the men of other periods by the morality of our own day has its parallel in the mistake of supposing that every wheel and bolt in the modern social machine had its counterpart in more rudimentary societies. such impressions ramify very widely, and masque themselves very subtly, in historical works written in the modern fashion; but i find the trace of their presence in the domain of jurisprudence in the praise which is frequently bestowed on the little apologue of montesquieu concerning the troglodytes, inserted in the _lettres persanes_. the troglodytes were a people who systematically violated their contracts, and so perished utterly. if the story bears the moral which its author intended, and is employed to expose an anti-social heresy by which this century and the last have been threatened, it is most unexceptionable; but if the inference be obtained from it that society could not possibly hold together without attaching a sacredness to promises and agreements which should be on something like a par with the respect that is paid to them by a mature civilisation, it involves an error so grave as to be fatal to all sound understanding of legal history. the fact is that the troglodytes have flourished and founded powerful states with very small attention to the obligations of contract. the point which before all others has to be apprehended in the constitution of primitive societies is that the individual creates for himself few or no rights, and few or no duties. the rules which he obeys are derived first from the station into which he is born, and next from the imperative commands addressed to him by the chief of the household of which he forms part. such a system leaves the very smallest room for contract. the members of the same family (for so we may interpret the evidence) are wholly incapable of contracting with each other, and the family is entitled to disregard the engagements by which any one of its subordinate members has attempted to bind it. family, it is true, may contract with family, chieftain with chieftain, but the transaction is one of the same nature, and encumbered by as many formalities, as the alienation of property, and the disregard of one iota of the performance is fatal to the obligation. the positive duty resulting from one man's reliance on the word of another is among the slowest conquests of advancing civilisation. neither ancient law nor any other source of evidence discloses to us society entirely destitute of the conception of contract. but the conception, when it first shows itself, is obviously rudimentary. no trustworthy primitive record can be read without perceiving that the habit of mind which induces us to make good a promise is as yet imperfectly developed, and that acts of flagrant perfidy are often mentioned without blame and sometimes described with approbation. in the homeric literature, for instance, the deceitful cunning of ulysses appears as a virtue of the same rank with the prudence of nestor, the constancy of hector, and the gallantry of achilles. ancient law is still more suggestive of the distance which separates the crude form of contract from its maturity. at first, nothing is seen like the interposition of law to compel the performance of a promise. that which the law arms with its sanctions is not a promise, but a promise accompanied with a solemn ceremonial. not only are formalities of equal importance with the promise itself, but they are, if anything, of greater importance; for that delicate analysis which mature jurisprudence applies to the conditions of mind under which a particular verbal assent is given appears, in ancient law, to be transferred to the words and gestures of the accompanying performance. no pledge is enforced if a single form be omitted or misplaced, but, on the other hand, if the forms can be shown to have been accurately proceeded with, it is of no avail to plead that the promise was made under duress or deception. the transmutation of this ancient view into the familiar notion of a contract is plainly seen in the history of jurisprudence. first one or two steps in the ceremonial are dispensed with; then the others are simplified or permitted to be neglected on certain conditions; lastly, a few specific contracts are separated from the rest and allowed to be entered into without form, the selected contracts being those on which the activity and energy of social intercourse depends. slowly, but most distinctly, the mental engagement isolates itself amid the technicalities, and gradually becomes the sole ingredient on which the interest of the jurisconsult is concentrated. such a mental engagement, signified through external acts, the romans called a pact or convention; and when the convention has once been conceived as the nucleus of a contract, it soon becomes the tendency of advancing jurisprudence to break away the external shell of form and ceremony. forms are thenceforward only retained so far as they are guarantees of authenticity, and securities for caution and deliberation. the idea of a contract is fully developed, or, to employ the roman phrase, contracts are absorbed in pacts. the history of this course of change in roman law is exceedingly instructive. at the earliest dawn of the jurisprudence, the term in use for a contract was one which is very familiar to the students of historical latinity. it was _nexum_, and the parties to the contract were said to be _nexi_, expressions which must be carefully attended to on account of the singular durableness of the metaphor on which they are founded. the notion that persons under a contractual engagement are connected together by a strong _bond_ or _chain_, continued till the last to influence the roman jurisprudence of contract; and flowing thence it has mixed itself with modern ideas. what then was involved in this nexum or bond? a definition which has descended to us from one of the latin antiquarians describes _nexum_ as _omne quod geritur per æs et libram_, "every transaction with the copper and the balance," and these words have occasioned a good deal of perplexity. the copper and the balance are the well-known accompaniments of the mancipation, the ancient solemnity described in a former chapter, by which the right of ownership in the highest form of roman property was transferred from one person to another. mancipation was a _conveyance_, and hence has arisen the difficulty, for the definition thus cited appears to confound contracts and conveyances, which in the philosophy of jurisprudence are not simply kept apart, but are actually opposed to each other. the _jus in re_, right _in rem_, right "availing against all the world," or proprietary right, is sharply distinguished by the analyst of mature jurisprudence from the _jus ad rem_, right _in personam_, right "availing a single individual or group," or obligation. now conveyances transfer proprietary rights, contracts create obligations--how then can the two be included under the same name or same general conception? this, like many similar embarrassments, has been occasioned by the error of ascribing to the mental condition of an unformed society a faculty which pre-eminently belongs to an advanced stage of intellectual development, the faculty of distinguishing in speculation ideas which are blended in practice. we have indications not to be mistaken of a state of social affairs in which conveyances and contracts were practically confounded; nor did the discrepance of the conceptions become perceptible till men had begun to adopt a distinct practice in contracting and conveying. it may here be observed that we know enough of ancient roman law to give some idea of the mode of transformation followed by legal conceptions and by legal phraseology in the infancy of jurisprudence. the change which they undergo appears to be a change from general to special; or, as we might otherwise express it, the ancient conceptions and the ancient terms are subjected to a process of gradual specialisation. an ancient legal conception corresponds not to one but to several modern conceptions. an ancient technical expression serves to indicate a variety of things which in modern law have separate names allotted to them. if however we take up the history of jurisprudence at the next stage, we find that the subordinate conceptions have gradually disengaged themselves and that the old general names are giving way to special appellations. the old general conception is not obliterated, but it has ceased to cover more than one or a few of the notions which it first included. so too the old technical name remains, but it discharges only one of the functions which it once performed. we may exemplify this phenomenon in various ways. patriarchal power of all sorts appears, for instance, to have been once conceived as identical in character, and it was doubtless distinguished by one name. the power exercised by the ancestor was the same whether it was exercised over the family or the material property--over flocks, herds, slaves, children, or wife. we cannot be absolutely certain of its old roman name, but there is very strong reason for believing, from the number of expressions indicating shades of the notion of _power_ into which the word _manus_ enters, that the ancient general term was _manus_. but, when roman law has advanced a little, both the name and the idea have become specialised. power is discriminated, both in word and in conception, according to the object over which it is exerted. exercised over material commodities or slaves, it has become _dominium_--over children, it is _potestas_--over free persons whose services have been made away to another by their own ancestor, it is _mancipium_--over a wife, it is still _manus_. the old word, it will be perceived, has not altogether fallen into desuetude, but is confined to one very special exercise of the authority it had formerly denoted. this example will enable us to comprehend the nature of the historical alliance between contracts and conveyances. there seems to have been one solemn ceremonial at first for all solemn transactions, and its name at rome appears to have been _nexum_. precisely the same forms which were in use when a conveyance of property was effected seem to have been employed in the making of a contract. but we have not very far to move onwards before we come to a period at which the notion of a contract has disengaged itself from the notion of a conveyance. a double change has thus taken place. the transaction "with the copper and the balance," when intended to have for its office the transfer of property, is known by the new and special name of mancipation. the ancient nexum still designates the same ceremony, but only when it is employed for the special purpose of solemnising a contract. when two or three legal conceptions are spoken of as anciently blended in one, it is not intended to imply that some one of the included notions may not be older than the others, or, when those others have been formed, may not greatly predominate over and take precedence over them. the reason why one legal conception continues so long to cover several conceptions, and one technical phrase to do instead of several, is doubtless that practical changes are accomplished in the law of primitive societies long before men see occasion to notice or name them. though i have said that patriarchal power was not at first distinguished according to the objects over which it was exercised, i feel sure that power over children was the root of the old conception of power; and i cannot doubt that the earliest use of the nexum, and the one primarily regarded by those who resorted to it, was to give proper solemnity to the alienation of property. it is likely that a very slight perversion of the nexum from its original functions first gave rise to its employment in contracts, and that the very slightness of the change long prevented its being appreciated or noticed. the old name remained because men had not become conscious that they wanted a new one; the old notion clung to the mind because nobody had seen reason to be at the pains of examining it. we have had the process clearly exemplified in the history of testaments. a will was at first a simple conveyance of property. it was only the enormous practical difference that gradually showed itself between this particular conveyance and all others which caused it to be regarded separately, and even as it was, centuries elapsed before the ameliorators of law cleared away the useless encumbrance of the nominal mancipation, and consented to care for nothing in the will but the expressed intentions of the testator. it is unfortunate that we cannot track the early history of contracts with the same absolute confidence as the early history of wills, but we are not quite without hints that contracts first showed themselves through the _nexum_ being put to a new use and afterwards obtained recognition as distinct transactions through the important practical consequences of the experiment. there is some, but not very violent, conjecture in the following delineation of the process. let us conceive a sale for ready money as the normal type of the nexum. the seller brought the property of which he intended to dispose--a slave, for example--the purchaser attended with the rough ingots of copper which served for money--and an indispensable assistant, the _libripens_, presented himself with a pair of scales. the slave with certain fixed formalities was handed over to the vendee--the copper was weighed by the _libripens_ and passed to the vendor. so long as the business lasted it was a _nexum_, and the parties were _nexi_; but the moment it was completed, the _nexum_ ended, and the vendor and purchaser ceased to bear the name derived from their momentary relation. but now, let us move a step onward in commercial history. suppose the slave transferred, but the money not paid. in _that_ case, the _nexum_ is finished, so far as the seller is concerned, and when he has once handed over his property, he is no longer _nexus_; but, in regard to the purchaser, the _nexum_ continues. the transaction, as to his part of it, is incomplete, and he is still considered to be _nexus_. it follows, therefore, that the same term described the conveyance by which the right of property was transmitted, and the personal obligation of the debtor for the unpaid purchase-money. we may still go forward, and picture to ourselves a proceeding wholly formal, in which _nothing_ is handed over and _nothing_ paid; we are brought at once to a transaction indicative of much higher commercial activity, an _executory contract of sale_. if it be true that, both in the popular and in the professional view, a _contract_ was long regarded as an _incomplete conveyance_, the truth has importance for many reasons. the speculations of the last century concerning mankind in a state of nature, are not unfairly summed up in the doctrine that "in the primitive society property was nothing, and obligation everything;" and it will now be seen that, if the proposition were reversed, it would be nearer the reality. on the other hand, considered historically, the primitive association of conveyances and contracts explains something which often strikes the scholar and jurist as singularly enigmatical, i mean the extraordinary and uniform severity of very ancient systems of law to _debtors_, and the extravagant powers which they lodge with _creditors_. when once we understand that the _nexum_ was artificially prolonged to give time to the debtor, we can better comprehend his position in the eye of the public and of the law. his indebtedness was doubtless regarded as an anomaly, and suspense of payment in general as an artifice and a distortion of strict rule. the person who had duly consummated his part in the transaction must, on the contrary, have stood in peculiar favour; and nothing would seem more natural than to arm him with stringent facilities for enforcing the completion of a proceeding which, of strict right, ought never to have been extended or deferred. nexum, therefore, which originally signified a conveyance of property, came insensibly to denote a contract also, and ultimately so constant became the association between this word and the notion of a contract, that a special term, mancipium or mancipatio, had to be used for the purpose of designating the true nexum or transaction in which the property was really transferred. contracts are therefore now severed from conveyances, and the first stage in their history is accomplished, but still they are far enough from that epoch of their development when the promise of the contractor has a higher sacredness than the formalities with which it is coupled. in attempting to indicate the character of the changes passed through in this interval, it is necessary to trespass a little on a subject which lies properly beyond the range of these pages, the analysis of agreement effected by the roman jurisconsults. of this analysis, the most beautiful monument of their sagacity, i need not say more than that it is based on the theoretical separation of the obligation from the convention or pact. bentham and mr. austin have laid down that the "two main essentials of a contract are these: first, a signification by the promising party of his _intention_ to do the acts or to observe the forbearances which he promises to do or to observe. secondly, a signification by the promisee that he _expects_ the promising party will fulfil the proffered promise." this is virtually identical with the doctrine of the roman lawyers, but then, in their view, the result of these "significations" was not a contract, but a convention or pact. a pact was the utmost product of the engagements of individuals agreeing among themselves, and it distinctly fell short of a contract. whether it ultimately became a contract depended on the question whether the law annexed an obligation to it. a contract was a pact (or convention) _plus_ an obligation. so long as the pact remained unclothed with the obligation, it was called _nude_ or _naked_. what was an obligation? it is defined by the roman lawyers as "juris vinculum, quo necessitate adstringimur alicujus solvendæ rei." this definition connects the obligation with the nexum through the common metaphor on which they are founded, and shows us with much clearness the pedigree of a peculiar conception. the obligation is the "bond" or "chain" with which the law joins together persons or groups of persons, in consequence of certain voluntary acts. the acts which have the effect of attracting an obligation are chiefly those classed under the heads of contract and delict, of agreement and wrong; but a variety of other acts have a similar consequence which are not capable of being comprised in an exact classification. it is to be remarked, however, that the act does not draw to itself the obligation in consequence of any moral necessity; it is the law which annexes it in the plenitude of its power, a point the more necessary to be noted, because a different doctrine has sometimes been propounded by modern interpreters of the civil law who had moral or metaphysical theories of their own to support. the image of a _vinculum juris_ colours and pervades every part of the roman law of contract and delict. the law bound the parties together, and the _chain_ could only be undone by the process called _solutio_, an expression still figurative, to which our word "payment" is only occasionally and incidentally equivalent. the consistency with which the figurative image was allowed to present itself, explains an otherwise puzzling peculiarity of roman legal phraseology, the fact that "obligation" signified rights as well as duties, the right, for example, to have a debt paid as well as the duty of paying it. the romans kept in fact the entire picture of the "legal chain" before their eyes, and regarded one end of it no more and no less than the other. in the developed roman law, the convention, as soon as it was completed, was, in almost all cases, at once crowned with the obligation, and so became a contract; and this was the result to which contract-law was surely tending. but for the purpose of this inquiry, we must attend particularly to the intermediate stage--that in which something more than a perfect agreement was required to attract the obligation. this epoch is synchronous with the period at which the famous roman classification of contracts into four sorts--the verbal, the literal, the real, and the consensual--had come into use, and during which these four orders of contracts constituted the only descriptions of engagement which the law would enforce. the meaning of the fourfold distribution is readily understood as soon as we apprehend the theory which severed the obligation from the convention. each class of contracts was in fact named from certain formalities which were required over and above the mere agreement of the contracting parties. in the verbal contract, as soon as the convention was effected, a form of words had to be gone through before the vinculum juris was attached to it. in the literal contract, an entry in a ledger or table-book had the effect of clothing the convention with the obligation, and the same result followed, in the case of the real contract, from the delivery of the res or thing which was the subject of the preliminary engagement. the contracting parties came, in short, to an understanding in each case; but, if they went no further, they were not _obliged_ to one another, and could not compel performance or ask redress for a breach of faith. but let them comply with certain prescribed formalities, and the contract was immediately complete, taking its name from the particular form which it had suited them to adopt. the exceptions to this practice will be noticed presently. i have enumerated the four contracts in their historical order, which order, however, the roman institutional writers did not invariably follow. there can be no doubt that the verbal contract was the most ancient of the four, and that it is the eldest known descendant of the primitive nexum. several species of verbal contract were anciently in use, but the most important of all, and the only one treated of by our authorities, was effected by means of a _stipulation_, that is, a question and answer; a question addressed by the person who exacted the promise, and an answer given by the person who made it. this question and answer constituted the additional ingredient which, as i have just explained, was demanded by the primitive notion over and above the mere agreement of the persons interested. they formed the agency by which the obligation was annexed. the old nexum has now bequeathed to maturer jurisprudence first of all the conception of a chain uniting the contracting parties, and this has become the obligation. it has further transmitted the notion of a ceremonial accompanying and consecrating the engagement, and this ceremonial has been transmuted into the stipulation. the conversion of the solemn conveyance, which was the prominent feature of the original nexum, into a mere question and answer, would be more of a mystery than it is if we had not the analogous history of roman testaments to enlighten us. looking to that history, we can understand how the formal conveyance was first separated from the part of the proceeding which had immediate reference to the business in hand, and how afterwards it was omitted altogether. as then the question and answer of the stipulation were unquestionably the nexum in a simplified shape, we are prepared to find that they long partook of the nature of a technical form. it would be a mistake to consider them as exclusively recommending themselves to the older roman lawyers through their usefulness in furnishing persons meditating an agreement with an opportunity for consideration and reflection. it is not to be disputed that they had a value of this kind, which was gradually recognised; but there is proof that their function in respect to contracts was at first formal and ceremonial in the statement of our authorities, that not every question and answer was of old sufficient to constitute a stipulation, but only a question and answer couched in technical phraseology specially appropriated to the particular occasion. but although it is essential for the proper appreciation of the history of contract-law that the stipulation should be understood to have been looked upon as a solemn form before it was recognised as a useful security, it would be wrong on the other hand to shut our eyes to its real usefulness. the verbal contract, though it had lost much of its ancient importance, survived to the latest period of roman jurisprudence; and we may take it for granted that no institution of roman law had so extended a longevity unless it served some practical advantage. i observe in an english writer some expressions of surprise that the romans even of the earliest times were content with so meagre a protection against haste and irreflection. but on examining the stipulation closely, and remembering that we have to do with a state of society in which written evidence was not easily procurable, i think we must admit that this question and answer, had it been expressly devised to answer the purpose which it served, would have been justly designated a highly ingenious expedient. it was the _promisee_ who, in the character of stipulator, put all the terms of the contract into the form of a question, and the answer was given by the _promisor_. "do you promise that you will deliver me such and such a slave, at such and such a place, on such and such a day?" "i do promise." now, if we reflect for a moment, we shall see that this obligation to put the promise interrogatively inverts the natural position of the parties, and, by effectually breaking the tenor of the conversation, prevents the attention from gliding over a dangerous pledge. with us, a verbal promise is, generally speaking, to be gathered exclusively from the words of the promisor. in old roman law, another step was absolutely required; it was necessary for the promisee, after the agreement had been made, to sum up all its terms in a solemn interrogation; and it was of this interrogation, of course, and of the assent to it, that proof had to be given at the trial--_not_ of the promise, which was not in itself binding. how great a difference this seemingly insignificant peculiarity may make in the phraseology of contract-law is speedily realised by the beginner in roman jurisprudence, one of whose first stumbling-blocks is almost universally created by it. when we in english have occasion, in mentioning a contract, to connect it for convenience' sake with one of the parties--for example, if we wished to speak generally of a contractor--it is always the _promisor_ at whom our words are pointing. but the general language of roman law takes a different turn; it always regards the contract, if we may so speak, from the point of view of the _promisee_; in speaking of a party to a contract, it is always the stipulator, the person who asks the question, who is primarily alluded to. but the serviceableness of the stipulation is most vividly illustrated by referring to the actual examples in the pages of the latin comic dramatists. if the entire scenes are read down in which these passages occur (ex. gra. plautus, _pseudolus_, act i. sc. i; act iv. sc. ; _trinummus_, act v. sc. ), it will be perceived how effectually the attention of the person meditating the promise must have been arrested by the question, and how ample was the opportunity for withdrawal from an improvident undertaking. in the literal or written contract, the formal act, by which an obligation was superinduced on the convention, was an entry of the sum due, where it could be specifically ascertained, on the debit side of a ledger. the explanation of this contract turns on a point of roman domestic manners, the systematic character and exceeding regularity of bookkeeping in ancient times. there are several minor difficulties of old roman law, as, for example, the nature of the slave's peculium, which are only cleared up when we recollect that a roman household consisted of a number of persons strictly accountable to its head, and that every single item of domestic receipt and expenditure, after being entered in waste books, was transferred at stated periods to a general household ledger. there are some obscurities, however, in the descriptions we have received of the literal contract, the fact being that the habit of keeping books ceased to be universal in later times, and the expression "literal contract" came to signify a form of engagement entirely different from that originally understood. we are not, therefore, in a position to say, with respect to the primitive literal contract, whether the obligation was created by a simple entry on the part of the creditor, or whether the consent of the debtor or a corresponding entry in his own books was necessary to give it legal effect. the essential point is however established that, in the case of this contract, all formalities were dispensed with on a condition being complied with. this is another step downwards in the history of contract-law. the contract which stands next in historical succession, the real contract, shows a great advance in ethical conceptions. whenever any agreement had for its object the delivery of a specific thing--and this is the case with the large majority of simple engagements--the obligation was drawn down as soon as the delivery had actually taken place. such a result must have involved a serious innovation on the oldest ideas of contract; for doubtless, in the primitive times, when a contracting party had neglected to clothe his agreement in a stipulation, nothing done in pursuance of the agreement would be recognised by the law. a person who had paid over money on loan would be unable to sue for its repayment unless he had formally _stipulated_ for it. but, in the real contract, performance on one side is allowed to impose a legal duty on the other--evidently on ethical grounds. for the first time then moral considerations appear as an ingredient in contract-law, and the real contract differs from its two predecessors in being founded on these, rather than on respect for technical forms or on deference to roman domestic habits. we now reach the fourth class, or consensual contracts, the most interesting and important of all. four specified contracts were distinguished by this name: mandatum, _i.e._ commission or agency; societas or partnership; emtio venditio or sale; and locatio conductio or letting and hiring. a few pages ago, after stating that a contract consisted of a pact or convention to which an obligation had been superadded, i spoke of certain acts or formalities by which the law permitted the obligation to be attracted to the pact. i used this language on account of the advantage of a general expression, but it is not strictly correct unless it be understood to include the negative as well as the positive. for, in truth, the peculiarity of these consensual contracts is that _no_ formalities, are required to create them out of the pact. much that is indefensible, and much more that is obscure, has been written about the consensual contracts, and it has even been asserted that in them the _consent_ of the parties is more emphatically given than in any other species of agreement. but the term consensual merely indicates that the obligation is here annexed at once to the _consensus_. the consensus, or mutual assent of the parties, is the final and crowning ingredient in the convention, and it is the special characteristic of agreements falling under one of the four heads of sale, partnership, agency, and hiring, that, as soon as the assent of the parties has supplied this ingredient, there is _at once_ a contract. the consensus draws with it the obligation, performing, in transactions of the sort specified, the exact functions which are discharged, in the other contracts, by the _res_ or thing, by the _verba_ stipulationis, and by the _literæ_ or written entry in a ledger. consensual is therefore a term which does not involve the slightest anomaly, but is exactly analogous to real, verbal, and literal. in the intercourse of life the commonest and most important of all the contracts are unquestionably the four styled consensual. the larger part of the collective existence of every community is consumed in transactions of buying and selling, of letting and hiring, of alliances between men for purposes of business, of delegation of business from one man to another; and this is no doubt the consideration which led the romans, as it has led most societies, to relieve these transactions from technical incumbrance, to abstain as much as possible from clogging the most efficient springs of social movement. such motives were not of course confined to rome, and the commerce of the romans with their neighbours must have given them abundant opportunities for observing that the contracts before us tended everywhere to become _consensual_, obligatory on the mere signification of mutual assent. hence, following their usual practice, they distinguished these contracts as contracts _juris gentium_. yet i do not think that they were so named at a very early period. the first notions of a jus gentium may have been deposited in the minds of the roman lawyers long before the appointment of a prætor peregrinus, but it would only be through extensive and regular trade that they would be familiarised with the contractual system of other italian communities, and such a trade would scarcely attain considerable proportions before italy had been thoroughly pacified, and the supremacy of rome conclusively assured. although, however, there is strong probability that the consensual contracts were the latest-born into the roman system, and though it is likely that the qualification, _juris gentium_, stamps the recency of their origin, yet this very expression, which attributes them to the "law of nations," has in modern times produced the notion of their extreme antiquity. for, when the "law of nations" had been converted into the "law of nature," it seemed to be implied that the consensual contracts were the type of the agreements most congenial to the natural state; and hence arose the singular belief that the younger the civilisation, the simpler must be its forms of contract. the consensual contracts, it will be observed, were extremely limited in number. but it cannot be doubted that they constituted the stage in the history of contract-law from which all modern conceptions of contract took their start. the motion of the will which constitutes agreement was now completely insulated, and became the subject of separate contemplation; forms were entirely eliminated from the notion of contract, and external acts were only regarded as symbols of the internal act of volition. the consensual contracts had, moreover, been classed in the jus gentium, and it was not long before this classification drew with it the inference that they were the species of agreement which represented the engagements approved of by nature and included in her code. this point once reached, we are prepared for several celebrated doctrines and distinctions of the roman lawyers. one of them is the distinction between natural and civil obligations. when a person of full intellectual maturity had deliberately bound himself by an engagement, he was said to be under a _natural obligation_, even though he had omitted some necessary formality, and even though through some technical impediment he was devoid of the formal capacity for making a valid contract. the law (and this is what the distinction implies) would not enforce the obligation, but it did not absolutely refuse to recognise it; and _natural obligations_ differed in many respects from obligations which were merely null and void, more particularly in the circumstance that they could be civilly confirmed, if the capacity for contract were subsequently acquired. another very peculiar doctrine of the jurisconsults could not have had its origin earlier than the period at which the convention was severed from the technical ingredients of contract. they taught that though nothing but a contract could be the foundation of an _action_, a mere pact or convention could be the basis of a _plea_. it followed from this, that though nobody could sue upon an agreement which he had not taken the precaution to mature into a contract by complying with the proper forms, nevertheless a claim arising out of a valid contract could be rebutted by proving a counter-agreement which had never got beyond the state of a simple convention. an action for the recovery of a debt could be met by showing a mere informal agreement to waive or postpone the payment. the doctrine just stated indicates the hesitation of the prætors in making their advances towards the greatest of their innovations. their theory of natural law must have led them to look with especial favour on the consensual contracts and on those pacts or conventions of which the consensual contracts were only particular instances; but they did not at once venture on extending to all conventions the liberty of the consensual contracts. they took advantage of that special superintendence over procedure which had been confided to them since the first beginnings of roman law, and, while they still declined to permit a suit to be launched which was not based on a formal contract, they gave full play to their new theory of agreement in directing the ulterior stages of the proceeding. but, when they had proceeded thus far, it was inevitable that they should proceed farther. the revolution of the ancient law of contract was consummated when the prætor of some one year announced in his edict that he would grant equitable actions upon pacts which had never been matured at all into contracts, provided only that the pacts in question had been founded on a consideration (_causa_). pacts of this sort are always enforced under the advanced roman jurisprudence. the principle is merely the principle of the consensual contract carried to its proper consequence; and, in fact, if the technical language of the romans had been as plastic as their legal theories, these pacts enforced by the prætor would have been styled new contracts, new consensual contracts. legal phraseology is, however, the part of the law which is the last to alter, and the pacts equitably enforced continued to be designated simply prætorian pacts. it will be remarked that unless there were consideration for the pact, it would continue _nude_ so far as the new jurisprudence was concerned; in order to give it effect, it would be necessary to convert it by a stipulation into a verbal contract. the extreme importance of this history of contract, as a safeguard against almost innumerable delusions, must be my justification for discussing it at so considerable a length. it gives a complete account of the march of ideas from one great landmark of jurisprudence to another. we begin with nexum, in which a contract and a conveyance are blended, and in which the formalities which accompany the agreement are even more important than the agreement itself. from the nexum we pass to the stipulation, which is a simplified form of the older ceremonial. the literal contract comes next, and here all formalities are waived, if proof of the agreement can be supplied from the rigid observances of a roman household. in the real contract a moral duty is for the first time recognised, and persons who have joined or acquiesced in the partial performance of an engagement are forbidden to repudiate it on account of defects in form. lastly, the consensual contracts emerge, in which the mental attitude of the contractors is solely regarded, and external circumstances have no title to notice except as evidence of the inward undertaking. it is of course uncertain how far this progress of roman ideas from a gross to a refined conception exemplifies the necessary progress of human thought on the subject of contract. the contract-law of all other ancient societies but the roman is either too scanty to furnish information, or else is entirely lost; and modern jurisprudence is so thoroughly leavened with the roman notions that it furnishes us with no contrasts or parallels from which instruction can be gleaned. from the absence, however, of everything violent, marvellous, or unintelligible in the changes i have described, it may be reasonably believed that the history of ancient roman contracts is, up to a certain point, typical of the history of this class of legal conceptions in other ancient societies. but it is only up to a certain point that the progress of roman law can be taken to represent the progress of other systems of jurisprudence. the theory of natural law is exclusively roman. the notion of the _vinculum juris_, so far as my knowledge extends, is exclusively roman. the many peculiarities of the mature roman law of contract and delict which are traceable to these two ideas, whether singly or in combination, are therefore among the exclusive products of one particular society. these later legal conceptions are important, not because they typify the necessary results of advancing thought under all conditions, but because they have exercised perfectly enormous influence on the intellectual diathesis of the modern world. i know nothing more wonderful than the variety of sciences to which roman law, roman contract-law more particularly, has contributed modes of thought, courses of reasoning, and a technical language. of the subjects which have whetted the intellectual appetite of the moderns, there is scarcely one, except physics, which has not been filtered through roman jurisprudence. the science of pure metaphysics had, indeed, rather a greek than a roman parentage, but politics, moral philosophy, and even theology, found in roman law not only a vehicle of expression, but a nidus in which some of their profoundest inquiries were nourished into maturity. for the purpose of accounting for this phenomenon, it is not absolutely necessary to discuss the mysterious relation between words and ideas, or to explain how it is that the human mind has never grappled with any subject of thought, unless it has been provided beforehand with a proper store of language and with an apparatus of appropriate logical methods. it is enough to remark, that, when the philosophical interests of the eastern and western worlds were separated, the founders of western thought belonged to a society which spoke latin and reflected in latin. but in the western provinces the only language which retained sufficient precision for philosophical purposes was the language of roman law, which by a singular fortune had preserved nearly all the purity of the augustan age, while vernacular latin was degenerating into a dialect of portentous barbarism. and if roman jurisprudence supplied the only means of exactness in speech, still more emphatically did it furnish the only means of exactness, subtlety, or depth in thought. for at least three centuries, philosophy and science were without a home in the west; and though metaphysics and metaphysical theology were engrossing the mental energies of multitudes of roman subjects, the phraseology employed in these ardent inquiries was exclusively greek, and their theatre was the eastern half of the empire. sometimes, indeed, the conclusions of the eastern disputants became so important that every man's assent to them, or dissent from them, had to be recorded, and then the west was introduced to the results of eastern controversy, which it generally acquiesced in without interest and without resistance. meanwhile, one department of inquiry, difficult enough for the most laborious, deep enough for the most subtle, delicate enough for the most refined, had never lost its attractions for the educated classes of the western provinces. to the cultivated citizen of africa, of spain, of gaul and of northern italy, it was jurisprudence, and jurisprudence only, which stood in the place of poetry and history, of philosophy and science. so far then from there being anything mysterious in the palpably legal complexion of the earliest efforts of western thought it would rather be astonishing if it had assumed any other hue. i can only express my surprise at the scantiness of the attention which has been given to the difference between western ideas and eastern, between western theology and eastern, caused by the presence of a new ingredient. it is precisely because the influence of jurisprudence begins to be powerful that the foundation of constantinople and the subsequent separation of the western empire from the eastern, are epochs in philosophical history. but continental thinkers are doubtless less capable of appreciating the importance of this crisis by the very intimacy with which notions derived from roman law are mingled up with every-day ideas. englishmen, on the other hand, are blind to it through the monstrous ignorance to which they condemn themselves of the most plentiful source of the stream of modern knowledge, of the one intellectual result of the roman civilisation. at the same time, an englishman, who will be at the pains to familiarise himself with the classical roman law, is perhaps, from the very slightness of the interest which his countrymen have hitherto taken in the subject, a better judge than a frenchman or a german of the value of the assertions i have ventured to make. anybody who knows what roman jurisprudence is, as actually practised by the romans, and who will observe in what characteristics the earliest western theology and philosophy differ from the phases of thought which preceded them, may be safely left to pronounce what was the new element which had begun to pervade and govern speculation. the part of roman law which has had most extensive influence on foreign subjects of inquiry has been the law of obligation, or what comes nearly to the same thing, of contract and delict. the romans themselves were not unaware of the offices which the copious and malleable terminology belonging to this part of their system might be made to discharge, and this is proved by their employment of the peculiar adjunct _quasi_ in such expressions as quasi-contract and quasi-delict. "quasi," so used, is exclusively a term of classification. it has been usual with english critics to identify the quasi-contracts with _implied_ contracts, but this is an error, for implied contracts are true contracts, which quasi-contracts are not. in implied contracts, acts and circumstances are the symbols of the same ingredients which are symbolised, in express contracts, by words; and whether a man employs one set of symbols or the other must be a matter of indifference so far as concerns the theory of agreement. but a quasi-contract is not a contract at all. the commonest sample of the class is the relation subsisting between two persons one of whom has paid money to the other through mistake. the law, consulting the interests of morality, imposes an obligation on the receiver to refund, but the very nature of the transaction indicates that it is not a contract, inasmuch as the convention, the most essential ingredient of contract, is wanting. this word "quasi," prefixed to a term of roman law, implies that the conception to which it serves as an index is connected with the conception with which the comparison is instituted by a strong superficial analogy or resemblance. it does not denote that the two conceptions are the same or that they belong to the same genus. on the contrary, it negatives the notion of an identity between them; but it points out that they are sufficiently similar for one to be classed as the sequel to the other, and that the phraseology taken from one department of law may be transferred to the other and employed without violent straining in the statement of rules which would otherwise be imperfectly expressed. it has been shrewdly remarked, that the confusion between implied contracts, which are true contracts, and quasi contracts, which are not contracts at all, has much in common with the famous error which attributed political rights and duties to an original compact between the governed and the governor. long before this theory had clothed itself in definite shape, the phraseology of roman contract-law had been largely drawn upon to describe that reciprocity of rights and duties which men had always conceived as existing between sovereigns and subjects. while the world was full of maxims setting forth with the utmost positiveness the claims of kings to implicit obedience--maxims which pretended to have had their origin in the new testament, but which were really derived from indelible recollections of the cæsarian despotism--the consciousness of correlative rights possessed by the governed would have been entirely without the means of expression if the roman law of obligation had not supplied a language capable of shadowing forth an idea which was as yet imperfectly developed. the antagonism between the privileges of kings and their duties to their subjects was never, i believe, lost sight of since western history began, but it had interest for few except speculative writers so long as feudalism continued in vigour, for feudalism effectually controlled by express customs the exorbitant theoretical pretensions of most european sovereigns. it is notorious, however, that as soon as the decay of the feudal system had thrown the mediæval constitutions out of working order, and when the reformation had discredited the authority of the pope, the doctrine of the divine right of kings rose immediately into an importance which had never before attended it. the vogue which it obtained entailed still more constant resort to the phraseology of roman law, and a controversy which had originally worn a theological aspect assumed more and more the air of a legal disputation. a phenomenon then appeared which has repeatedly shown itself in the history of opinion. just when the argument for monarchical authority rounded itself into the definite doctrine of filmer, the phraseology, borrowed from the law of contract, which had been used in defence of the rights of subjects, crystallised into the theory of an actual original compact between king and people, a theory which, first in english and afterwards, and more particularly, in french hands, expanded into a comprehensive explanation of all the phenomena of society and law. but the only real connection between political and legal science had consisted in the last giving to the first the benefit of its peculiarly plastic terminology. the roman jurisprudence of contract had performed for the relation of sovereign and subject precisely the same service which, in a humbler sphere, it rendered to the relation of persons bound together by an obligation of "quasi-contract." it had furnished a body of words and phrases which approximated with sufficient accuracy to the ideas which then were from time to time forming on the subject of political obligation. the doctrine of an original compact can never be put higher than it is placed by dr. whewell, when he suggests that, though unsound, "it may be a _convenient_ form for the expression of moral truths." the extensive employment of legal language on political subjects previously to the invention of the original compact, and the powerful influence which that assumption has exercised subsequently, amply account for the plentifulness in political science of words and conceptions, which were the exclusive creation of roman jurisprudence. of their plentifulness in moral philosophy a rather different explanation must be given, inasmuch as ethical writings have laid roman law under contribution much more directly than political speculations, and their authors have been much more conscious of the extent of their obligation. in speaking of moral philosophy as extraordinarily indebted to roman jurisprudence, i must be understood to intend moral philosophy as understood previously to the break in its history effected by kant, that is, as the science of the rules governing human conduct, of their proper interpretation and of the limitations to which they are subject. since the rise of the critical philosophy, moral science has almost wholly lost its older meaning, and, except where it is preserved under a debased form in the casuistry still cultivated by roman catholic theologians, it seems to be regarded nearly universally as a branch of ontological inquiry. i do not know that there is a single contemporary english writer, with the exception of dr. whewell, who understands moral philosophy as it was understood before it was absorbed by metaphysics and before the groundwork of its rules came to be a more important consideration than the rules themselves. so long, however, as ethical science had to do with the practical regimen of conduct, it was more or less saturated with roman law. like all the great subjects of modern thought, it was originally incorporated with theology. the science of moral theology, as it was at first called, and as it is still designated by the roman catholic divines, was undoubtedly constructed, to the full knowledge of its authors, by taking principles of conduct from the system of the church, and by using the language and methods of jurisprudence for their expression and expansion. while this process went on, it was inevitable that jurisprudence, though merely intended to be the vehicle of thought, should communicate its colour to the thought itself. the tinge received through contact with legal conceptions is perfectly perceptible in the earliest ethical literature of the modern world, and it is evident, i think, that the law of contract, based as it is on the complete reciprocity and indissoluble connection of rights and duties, has acted as a wholesome corrective to the predispositions of writers who, if left to themselves, might have exclusively viewed a moral obligation as the public duty of a citizen in the civitas dei. but the amount of roman law in moral theology becomes sensibly smaller at the time of its cultivation by the great spanish moralists. moral theology, developed by the juridical method of doctor commenting on doctor, provided itself with a phraseology of its own, and aristotelian peculiarities of reasoning and expression, imbibed doubtless in great part from the disputations on morals in the academical schools, take the place of that special turn of thought and speech which can never be mistaken by any person conversant with the roman law. if the credit of the spanish school of moral theologians had continued, the juridical ingredient in ethical science would have been insignificant, but the use made of their conclusions by the next generation of roman catholic writers on these subjects almost entirely destroyed their influence. moral theology, degraded into casuistry, lost all interest for the leaders of european speculation; and the new science of moral philosophy, which was entirely in the hands of the protestants, swerved greatly aside from the path which the moral theologians had followed. the effect was vastly to increase the influence of roman law on ethical inquiry. shortly[ ] after the reformation, we find two great schools of thought dividing this class of subjects between them. the most influential of the two was at first the sect of school known to us as the casuists, all of them in spiritual communion with the roman catholic church, and nearly all of them affiliated to one or other of her religious orders. on the other side were a body of writers connected with each other by a common intellectual descent from the great author of the treatise _de jure belli et pacis_, hugo grotius. almost all of the latter were adherents of the reformation, and though it cannot be said that they were formally and avowedly at conflict with the casuists, the origin and object of their system were nevertheless essentially different from those of casuistry. it is necessary to call attention to this difference, because it involves the question of the influence of roman law on that department of thought with which both systems are concerned. the book of grotius, though it touches questions of pure ethics in every page, and though it is the parent immediate or remote of innumerable volumes of formal morality, is not, as is well known, a professed treatise on moral philosophy; it is an attempt to determine the law of nature, or natural law. now, without entering upon the question, whether the conception of a law natural be not exclusively a creation of the roman jurisconsults, we may lay down that, even on the admission of grotius himself, the dicta of the roman jurisprudence as to what parts of known positive law must be taken to be parts of the law of nature, are, if not infallible, to be received at all events with the profoundest respect. hence the system of grotius is implicated with roman law at its very foundation, and this connection rendered inevitable--what the legal training of the writer would perhaps have entailed without it--the free employment in every paragraph of technical phraseology, and of modes of reasoning, defining, and illustrating, which must sometimes conceal the sense, and almost always the force and cogency, of the argument from the reader who is unfamiliar with the sources whence they have been derived. on the other hand, casuistry borrows little from roman law, and the views of morality contended for have nothing whatever in common with the undertaking of grotius. all that philosophy of right and wrong which has become famous, or infamous, under the name of casuistry, had its origin in the distinction between mortal and venial sin. a natural anxiety to escape the awful consequences of determining a particular act to be mortally sinful, and a desire, equally intelligible, to assist the roman catholic church in its conflict with protestantism by disburthening it of an inconvenient theory, were the motives which impelled the authors of the casuistical philosophy to the invention of an elaborate system of criteria, intended to remove immoral actions, in as many cases as possible, out of the category of mortal offences, and to stamp them as venial sins. the fate of this experiment is matter of ordinary history. we know that the distinctions of casuistry, by enabling the priesthood to adjust spiritual control to all the varieties of human character, did really confer on it an influence with princes, statesmen, and generals, unheard of in the ages before the reformation, and did really contribute largely to that great reaction which checked and narrowed the first successes of protestantism. but beginning in the attempt, not to establish, but to evade--not to discover a principle, but to escape a postulate--not to settle the nature of right and wrong, but to determine what was not wrong of a particular nature,--casuistry went on with its dexterous refinements till it ended in so attenuating the moral features of actions, and so belying the moral instincts of our being, that at length the conscience of mankind rose suddenly in revolt against it, and consigned to one common ruin the system and its doctors. the blow, long pending, was finally struck in the _provincial letters_ of pascal, and since the appearance of those memorable papers, no moralist of the smallest influence or credit has ever avowedly conducted his speculations in the footsteps of the casuists. the whole field of ethical science was thus left at the exclusive command of the writers who followed grotius; and it still exhibits in an extraordinary degree the traces of that entanglement with roman law which is sometimes imputed as a fault, and sometimes the highest of its recommendations, to the grotian theory. many inquirers since grotius's day have modified his principles, and many, of course, since the rise of the critical philosophy, have quite deserted them; but even those who have departed most widely from his fundamental assumptions have inherited much of his method of statement, of his train of thought, and of his mode of illustration; and these have little meaning and no point to the person ignorant of roman jurisprudence. i have already said that, with the exception of the physical sciences, there is no walk of knowledge which has been so slightly affected by roman law as metaphysics. the reason is that discussion on metaphysical subjects has always been conducted in greek, first in pure greek, and afterwards in a dialect of latin expressly constructed to give expression to greek conceptions. the modern languages have only been fitted to metaphysical inquiries by adopting this latin dialect, or by imitating the process which was originally followed in its formation. the source of the phraseology which has been always employed for metaphysical discussion in modern times was the latin translations of aristotle, in which, whether derived or not from arabic versions, the plan of the translator was not to seek for analogous expressions in any part of latin literature, but to construct anew from latin roots a set of phrases equal to the expression of greek philosophical ideas. over such a process the terminology of roman law can have exercised little influence; at most, a few latin law terms in a transmuted shape have made their way into metaphysical language. at the same time it is worthy of remark that whenever the problems of metaphysics are those which have been most strongly agitated in western europe, the thought, if not the language, betrays a legal parentage. few things in the history of speculation are more impressive than the fact that no greek-speaking people has ever felt itself seriously perplexed by the great question of free-will and necessity. i do not pretend to offer any summary explanation of this, but it does not seem an irrelevant suggestion that neither the greeks, nor any society speaking and thinking in their language, ever showed the smallest capacity for producing a philosophy of law. legal science is a roman creation, and the problem of free-will arises when we contemplate a metaphysical conception under a legal aspect. how came it to be a question whether invariable sequence was identical with necessary connection? i can only say that the tendency of roman law, which became stronger as it advanced, was to look upon legal consequences as united to legal causes by an inexorable necessity, a tendency most markedly exemplified in the definition of obligation which i have repeatedly cited, "juris vinculum quo necessitate adstringimur alicujus solvendæ rei." but the problem of free-will was theological before it became philosophical, and, if its terms have been affected by jurisprudence, it will be because jurisprudence had made itself felt in theology. the great point of inquiry which is here suggested has never been satisfactorily elucidated. what has to be determined, is whether jurisprudence has ever served as the medium through which theological principles have been viewed; whether, by supplying a peculiar language, a peculiar mode of reasoning, and a peculiar solution of many of the problems of life, it has ever opened new channels in which theological speculation could flow out and expand itself. for the purpose of giving an answer it is necessary to recollect what is already agreed upon by the best writers as to the intellectual food which theology first assimilated. it is conceded on all sides that the earliest language of the christian church was greek, and that the problems to which it first addressed itself were those for which greek philosophy in its later forms had prepared the way. greek metaphysical literature contained the sole stock of words and ideas out of which the human mind could provide itself with the means of engaging in the profound controversies as to the divine persons, the divine substance, and the divine natures. the latin language and the meagre latin philosophy were quite unequal to the undertaking, and accordingly the western or latin-speaking provinces of the empire adopted the conclusions of the east without disputing or reviewing them. "latin christianity," says dean milman, "accepted the creed which its narrow and barren vocabulary could hardly express in adequate terms. yet, throughout, the adhesion of rome and the west was a passive acquiescence in the dogmatic system which had been wrought out by the profounder theology of the eastern divines, rather than a vigorous and original examination on her part of those mysteries. the latin church was the scholar as well as the loyal partizan of athanasius." but when the separation of east and west became wider, and the latin-speaking western empire began to live with an intellectual life of its own, its deference to the east was all at once exchanged for the agitation of a number of questions entirely foreign to eastern speculation. "while greek theology (milman, _latin christianity_, preface, ) went on defining with still more exquisite subtlety the godhead and the nature of christ"--"while the interminable controversy still lengthened out and cast forth sect after sect from the enfeebled community"--the western church threw itself with passionate ardour into a new order of disputes, the same which from those days to this have never lost their interest for any family of mankind at any time included in the latin communion. the nature of sin and its transmission by inheritance--the debt owed by man and its vicarious satisfaction--the necessity and sufficiency of the atonement--above all the apparent antagonism between free-will and the divine providence--these were the points which the west began to debate as ardently as ever the east had discussed the articles of its more special creed. why is it then that on the two sides of the line which divides the greek-speaking from the latin-speaking provinces there lie two classes of theological problems so strikingly different from one another? the historians of the church have come close upon the solution when they remark that the new problems were more "practical," less absolutely speculative, than those which had torn eastern christianity asunder, but none of them, so far as i am aware, has quite reached it. i affirm without hesitation that the difference between the two theological systems is accounted for by the fact that, in passing from the east to the west, theological speculation had passed from a climate of greek metaphysics to a climate of roman law. for some centuries before these controversies rose into overwhelming importance, all the intellectual activity of the western romans had been expended on jurisprudence exclusively. they had been occupied in applying a peculiar set of principles to all the combinations in which the circumstances of life are capable of being arranged. no foreign pursuit or taste called off their attention from this engrossing occupation, and for carrying it on they possessed a vocabulary as accurate as it was copious, a strict method of reasoning, a stock of general propositions on conduct more or less verified by experience, and a rigid moral philosophy. it was impossible that they should not select from the questions indicated by the christian records those which had some affinity with the order of speculations to which they were accustomed, and that their manner of dealing with them should borrow something from their forensic habits. almost everybody who has knowledge enough of roman law to appreciate the roman penal system, the roman theory of the obligations established by contract or delict, the roman view of debts and of the modes of incurring, extinguishing, and transmitting them, the roman notion of the continuance of individual existence by universal succession, may be trusted to say whence arose the frame of mind to which the problems of western theology proved so congenial, whence came the phraseology in which these problems were stated, and whence the description of reasoning employed in their solution. it must only be recollected that roman law which had worked itself into western thought was neither the archaic system of the ancient city, nor the pruned and curtailed jurisprudence of the byzantine emperors; still less, of course, was it the mass of rules, nearly buried in a parasitical overgrowth of modern speculative doctrine, which passes by the name of modern civil law. i speak only of that philosophy of jurisprudence, wrought out by the great juridical thinkers of the antonine age, which may still be partially reproduced from the pandects of justinian, a system to which few faults can be attributed except it perhaps aimed at a higher degree of elegance, certainty, and precision, than human affairs will permit to the limits within which human laws seek to confine them. it is a singular result of that ignorance of roman law which englishmen readily confess, and of which they are sometimes not ashamed to boast, that many english writers of note and credit have been led by it to put forward the most untenable of paradoxes concerning the condition of human intellect during the roman empire. it has been constantly asserted, as unhesitatingly as if there were no temerity in advancing the proposition, that from the close of the augustan era to the general awakening of interest on the points of the christian faith, the mental energies of the civilised world were smitten with a paralysis. now there are two subjects of thought--the only two perhaps with the exception of physical science--which are able to give employment to all the powers and capacities which the mind possesses. one of them is metaphysical inquiry, which knows no limits so long as the mind is satisfied to work on itself; the other is law, which is as extensive as the concerns of mankind. it happens that, during the very period indicated, the greek-speaking provinces were devoted to one, the latin-speaking provinces to the other, of these studies. i say nothing of the fruits of speculation in alexandria and the east, but i confidently affirm that rome and the west had an occupation in hand fully capable of compensating them for the absence of every other mental exercise, and i add that the results achieved, so far as we know them, were not unworthy of the continuous and exclusive labour bestowed on producing them. nobody except a professional lawyer is perhaps in a position completely to understand how much of the intellectual strength of individuals law is capable of absorbing, but a layman has no difficulty in comprehending why it was that an unusual share of the collective intellect of rome was engrossed by jurisprudence. "the proficiency[ ] of a given community in jurisprudence depends in the long run on the same conditions as its progress in any other line of inquiry; and the chief of these are the proportion of the national intellect devoted to it, and the length of time during which it is so devoted. now, a combination of all the causes, direct and indirect, which contribute to the advancing and perfecting of a science continued to operate on the jurisprudence of rome through the entire space between the twelve tables and the severance of the two empires,--and that not irregularly or at intervals, but in steadily increasing force and constantly augmenting number. we should reflect that the earliest intellectual exercise to which a young nation devotes itself is the study of its laws. as soon as the mind makes its first conscious efforts towards generalisation, the concerns of every-day life are the first to press for inclusion within general rules and comprehensive formulas. the popularity of the pursuit on which all the energies of the young commonwealth are bent is at the outset unbounded; but it ceases in time. the monopoly of mind by law is broken down. the crowd at the morning audience of the great roman jurisconsult lessens. the students are counted by hundreds instead of thousands in the english inns of court. art, literature, science, and politics, claim their share of the national intellect; and the practice of jurisprudence is confined within the circle of a profession, never indeed limited or insignificant, but attracted as much by the rewards as by the intrinsic recommendations of their science. this succession of changes exhibited itself even more strikingly at rome than in england. to the close of the republic the law was the sole field for all ability except the special talent of a capacity for generalship. but a new stage of intellectual progress began with the augustan age, as it did with our own elizabethan era. we all know what were its achievements in poetry and prose; but there are some indications, it should be remarked, that, besides its efflorescence in ornamental literature, it was on the eve of throwing out new aptitudes for conquest in physical science. here, however, is the point at which the history of mind in the roman state ceases to be parallel to the routes which mental progress had since then pursued. the brief span of roman literature, strictly so called, was suddenly closed under a variety of influences, which though they may partially be traced it would be improper in this place to analyse. ancient intellect was forcibly thrust back into its old courses, and law again became no less exclusively the proper sphere for talent than it had been in the days when the romans despised philosophy and poetry as the toys of a childish race. of what nature were the external inducements which, during the imperial period, tended to draw a man of inherent capacity to the pursuits of the jurisconsult may best be understood by considering the option which was practically before him in his choice of a profession. he might become a teacher of rhetoric, a commander of frontier-posts, or a professional writer of panegyrics. the only other walk of active life which was open to him was the practice of the law. through _that_ lay the approach to wealth, to fame, to office, to the council-chamber of the monarch--it may be to the very throne itself." the premium on the study of jurisprudence was so enormous that there were schools of law in every part of the empire, even in the very domain of metaphysics. but, though the transfer of the seat of empire to byzantium gave a perceptible impetus to its cultivation in the east, jurisprudence never dethroned the pursuits which there competed with it. its language was latin, an exotic dialect in the eastern half of the empire. it is only of the west that we can lay down that law was not only the mental food of the ambitious and aspiring, but the sole aliment of all intellectual activity. greek philosophy had never been more than a transient fashionable taste with the educated class of rome itself, and when the new eastern capital had been created, and the empire subsequently divided into two, the divorce of the western provinces from greek speculation, and their exclusive devotion to jurisprudence, became more decided than ever. as soon then as they ceased to sit at the feet of the greeks and began to ponder out a theology of their own, the theology proved to be permeated with forensic ideas and couched in a forensic phraseology. it is certain that this substratum of law in western theology lies exceedingly deep. a new set of greek theories, the aristotelian philosophy, made their way afterwards into the west and almost entirely buried its indigenous doctrines. but when at the reformation it partially shook itself free from their influence, it instantly supplied their place with law. it is difficult to say whether the religious system of calvin or the religious system of the arminians has the more markedly legal character. the vast influence of the specific jurisprudence of contract produced by the romans upon the corresponding department of modern law belongs rather to the history of mature jurisprudence than to a treatise like the present. it did not make itself felt till the school of bologna founded the legal science of modern europe. but the fact that the romans, before their empire fell, had so fully developed the conception of contract becomes of importance at a much earlier period than this. feudalism, i have repeatedly asserted, was a compound of archaic barbarian usage with roman law; no other explanation of it is tenable, or even intelligible. the earliest social forms of the feudal period differ in little from the ordinary associations in which the men of primitive civilisations are everywhere seen united. a fief was an organically complete brotherhood of associates whose proprietary and personal rights were inextricably blended together. it had much in common with an indian village community and much in common with a highland clan. but still it presents some phenomena which we never find in the associations which are spontaneously formed by beginners in civilisation. true archaic communities are held together not by express rules, but by sentiment, or, we should perhaps say, by instinct; and new comers into the brotherhood are brought within the range of this instinct by falsely pretending to share in the blood-relationship from which it naturally springs. but the earliest feudal communities were neither bound together by mere sentiment nor recruited by a fiction. the tie which united them was contract, and they obtained new associates by contracting with them. the relation of the lord to the vassals had originally been settled by express engagement, and a person wishing to engraft himself on the brotherhood by _commendation_ or _infeudation_ came to a distinct understanding as to the conditions on which he was to be admitted. it is therefore the sphere occupied in them by contract which principally distinguishes the feudal institutions from the unadulterated usages of primitive races. the lord had many of the characteristics of a patriarchal chieftain, but his prerogative was limited by a variety of settled customs traceable to the express conditions which had been agreed upon when the infeudation took place. hence flow the chief differences which forbid us to class the feudal societies with true archaic communities. they were much more durable and much more various; more durable, because express rules are less destructible than instinctive habits, and more various, because the contracts on which they were founded were adjusted to the minutest circumstances and wishes of the persons who surrendered or granted away their lands. this last consideration may serve to indicate how greatly the vulgar opinions current among us as to the origin of modern society stand in need of revision. it is often said that the irregular and various contour of modern civilisation is due to the exuberant and erratic genius of the germanic races, and it is often contrasted with the dull routine of the roman empire. the truth is that the empire bequeathed to modern society the legal conception to which all this irregularity is attributable; if the customs and institutions of barbarians have one characteristic more striking than another, it is their extreme uniformity. [ ] the passage quoted is transcribed with slight alterations from a paper contributed by the author to the _cambridge essays_ for . [ ] _cambridge essays_, . chapter x the early history of delict and crime the teutonic codes, including those of our anglo-saxon ancestors, are the only bodies of archaic secular law which have come down to us in such a state that we can form an exact notion of their original dimensions. although the extant fragments of roman and hellenic codes suffice to prove to us their general character, there does not remain enough of them for us to be quite sure of their precise magnitude or of the proportion of their parts to each other. but still on the whole all the known collections of ancient law are characterised by a feature which broadly distinguishes them from systems of mature jurisprudence. the proportion of criminal to civil law is exceedingly different. in the german codes, the civil part of the law has trifling dimensions as compared with the criminal. the traditions which speak of the sanguinary penalties inflicted by the code of draco seem to indicate that it had the same characteristic. in the twelve tables alone, produced by a society of greater legal genius and at first of gentler manners, the civil law has something like its modern precedence; but the relative amount of space given to the modes of redressing wrong, though not enormous, appears to have been large. it may be laid down, i think, that the more archaic the code, the fuller and the minuter is its penal legislation. the phenomenon has often been observed, and has been explained, no doubt to a great extent correctly, by the violence habitual to the communities which for the first time reduced their laws to writing. the legislator, it is said, proportioned the divisions of his work to the frequency of a certain class of incidents in barbarian life. i imagine, however, that this account is not quite complete. it should be recollected that the comparative barrenness of civil law in archaic collections is consistent with those other characteristics of ancient jurisprudence which have been discussed in this treatise. nine-tenths of the civil part of the law practised by civilised societies are made up of the law of persons, of the law of property and of inheritance, and of the law of contract. but it is plain that all these provinces of jurisprudence must shrink within narrower boundaries, the nearer we make our approaches to the infancy of social brotherhood. the law of persons, which is nothing else than the law of status, will be restricted to the scantiest limits as long as all forms of status are merged in common subjection to paternal power, as long as the wife has no rights against her husband, the son none against his father, and the infant ward none against the agnates who are his guardians. similarly, the rules relating to property and succession can never be plentiful, so long as land and goods devolve within the family, and, if distributed at all, are distributed inside its circle. but the greatest gap in ancient civil law will always be caused by the absence of contract, which some archaic codes do not mention at all, while others significantly attest the immaturity of the moral notions on which contract depends by supplying its place with an elaborate jurisprudence of oaths. there are no corresponding reasons for the poverty of penal law, and accordingly, even if it be hazardous to pronounce that the childhood of nations is always a period of ungoverned violence, we shall still be able to understand why the modern relation of criminal law to civil should be inverted in ancient codes. i have spoken of primitive jurisprudence as giving to _criminal_ law a priority unknown in a later age. the expression has been used for convenience' sake, but in fact the inspection of ancient codes shows that the law which they exhibit in unusual quantities is not true criminal law. all civilised systems agree in drawing a distinction between offences against the state or community and offences against the individual, and the two classes of injuries, thus kept apart, i may here, without pretending that the terms have always been employed consistently in jurisprudence, call crimes and wrongs, _crimina_ and _delicta_. now the penal law of ancient communities is not the law of crimes; it is the law of wrongs, or, to use the english technical word, of torts. the person injured proceeds against the wrong-doer by an ordinary civil action, and recovers compensation in the shape of money-damages if he succeeds. if the commentaries of gaius be opened at the place where the writer treats of the penal jurisprudence founded on the twelve tables, it will be seen that at the head of the civil wrongs recognised by the roman law stood _furtum_ or _theft_. offences which we are accustomed to regard exclusively as _crimes_ are exclusively treated as _torts_, and not theft only, but assault and violent robbery, are associated by the jurisconsult with trespass, libel and slander. all alike gave rise to an obligation or _vinculum juris_, and were all requited by a payment of money. this peculiarity, however, is most strongly brought out in the consolidated laws of the germanic tribes. without an exception, they describe an immense system of money compensations for homicide, and with few exceptions, as large a scheme of compensations for minor injuries. "under anglo-saxon law," writes mr. kemble (_anglo-saxons_, i. ), "a sum was placed on the life of every free man, according to his rank, and a corresponding sum on every wound that could be inflicted on his person, for nearly every injury that could be done to his civil rights, honour or peace; the sum being aggravated according to adventitious circumstances." these compositions are evidently regarded as a valuable source of income; highly complex rules regulate the title to them and the responsibility for them; and, as i have already had occasion to state, they often follow a very peculiar line of devolution, if they have not been acquitted at the decease of the person to whom they belong. if therefore the criterion of a _delict_, _wrong_, or _tort_ be that the person who suffers it, and not the state, is conceived to be wronged, it may be asserted that in the infancy of jurisprudence the citizen depends for protection against violence or fraud not on the law of crime but on the law of tort. torts then are copiously enlarged upon in primitive jurisprudence. it must be added that sins are known to it also. of the teutonic codes it is almost unnecessary to make this assertion, because those codes, in the form in which we have received them, were compiled or recast by christian legislators. but it is also true that non-christian bodies of archaic law entail penal consequences on certain classes of acts and on certain classes of omissions, as being violations of divine prescriptions and commands. the law administered at athens by the senate of areopagus was probably a special religious code, and at rome, apparently from a very early period, the pontifical jurisprudence punished adultery, sacrilege and perhaps murder. there were therefore in the athenian and in the roman states laws punishing _sins_. there were also laws punishing _torts_. the conception of offence against god produced the first class of ordinances; the conception of offence against one's neighbour produced the second; but the idea of offence against the state or aggregate community did not at first produce a true criminal jurisprudence. yet it is not to be supposed that a conception so simple and elementary as that of wrong done to the state was wanting in any primitive society. it seems rather that the very distinctness with which this conception is realised is the true cause which at first prevents the growth of a criminal law. at all events, when the roman community conceived itself to be injured, the analogy of a personal wrong received was carried out to its consequences with absolute literalness, and the state avenged itself by a single act on the individual wrong-doer. the result was that, in the infancy of the commonwealth, every offence vitally touching its security or its interests was punished by a separate enactment of the legislature. and this is the earliest conception of a _crimen_ or crime--an act involving such high issues that the state, instead of leaving its cognisance to the civil tribunal or the religious court, directed a special law or _privilegium_ against the perpetrator. every indictment therefore took the form of a bill of pains and penalties, and the trial of a _criminal_ was a proceeding wholly extraordinary, wholly irregular, wholly independent of settled rules and fixed conditions. consequently, both for the reason that the tribunal dispensing justice was the sovereign state itself and also for the reason that no classification of the acts prescribed or forbidden was possible, there was not at this epoch any _law_ of crimes, any criminal jurisprudence. the procedure was identical with the forms of passing an ordinary statute; it was set in motion by the same persons and conducted with precisely the same solemnities. and it is to be observed that, when a regular criminal law with an apparatus of courts and officers for its administration had afterwards come into being, the old procedure, as might be supposed from its conformity with theory, still in strictness remained practicable; and, much as resort to such an expedient was discredited, the people of rome always retained the power of punishing by a special law offences against its majesty. the classical scholar does not require to be reminded that in exactly the same manner the athenian bill of pains and penalties, or [greek: eisangelia], survived the establishment of regular tribunals. it is known too that when the freemen of the teutonic races assembled for legislation, they also claimed authority to punish offences of peculiar blackness or perpetrated by criminals of exalted station. of this nature was the criminal jurisdiction of the anglo-saxon witenagemot. it may be thought that the difference which i have asserted to exist between the ancient and modern view of penal law has only a verbal existence. the community, it may be said, besides interposing to punish crimes legislatively, has from the earliest times interfered by its tribunals to compel the wrong-doer to compound for his wrong, and, if it does this, it must always have supposed that in some way it was injured through his offence. but, however rigorous this inference may seem to us now-a-days, it is very doubtful whether it was actually drawn by the men of primitive antiquity. how little the notion of injury to the community had to do with the earliest interferences of the state _through its tribunals_, is shown by the curious circumstances that in the original administration of justice, the proceedings were a close imitation of the series of acts which were likely to be gone through in private life by persons who were disputing, but who afterwards suffered their quarrel to be appeased. the magistrate carefully simulated the demeanour of a private arbitrator casually called in. in order to show that this statement is not a mere fanciful conceit, i will produce the evidence on which it rests. very far the most ancient judicial proceeding known to us is the legis actio sacramenti of the romans, out of which all the later roman law of actions may be proved to have grown. gaius carefully describes its ceremonial. unmeaning and grotesque as it appears at first sight, a little attention enables us to decipher and interpret it. the subject of litigation is supposed to be in court. if it is moveable, it is actually there. if it be immoveable, a fragment or sample of it is brought in its place; land, for instance, is represented by a clod, a house by a single brick. in the example selected by gaius, the suit is for a slave. the proceeding begins by the plaintiff's advancing with a rod, which, as gaius expressly tells, symbolised a spear. he lays hold of the slave and asserts a right to him with the words, "_hunc ego hominem ex jure quiritium meum esse dico secundum suam causam sicut dixi_;" and then saying, "_ecce tibi vindictam imposui_," he touches him with the spear. the defendant goes through the same series of acts and gestures. on this the prætor intervenes, and bids the litigants relax their hold, "_mittite ambo hominem_." they obey, and the plaintiff demands from the defendant the reason of his interference, "_postulo anne dicas quâ ex causâ vindicaveris_," a question which is replied to by a fresh assertion of right, "_jus peregi sicut vindictam imposui_." on this, the first claimant offers to stake a sum of money, called a sacramentum, on the justice of his own case, "_quando tu injuriâ provocasti, d æris sacramento te provoco_," and the defendant, in the phrase "_similiter ego te_," accepts the wager. the subsequent proceedings were no longer of a formal kind, but it is to be observed that the prætor took security for the sacramentum, which always went into the coffers of the state. such was the necessary preface of every ancient roman suit. it is impossible, i think, to refuse assent to the suggestion of those who see in it a dramatisation of the origin of justice. two armed men are wrangling about some disputed property. the prætor, _vir pietate gravis_, happens to be going by, and interposes to stop the contest. the disputants state their case to him, and agree that he shall arbitrate between them, it being arranged that the loser, besides resigning the subject of the quarrel, shall pay a sum of money to the umpire as remuneration for his trouble and loss of time. this interpretation would be less plausible than it is, were it not that, by a surprising coincidence, the ceremony described by gaius as the imperative course of proceeding in a legis actio is substantially the same with one of the two subjects which the god hephæstus is described by homer as moulding into the first compartment of the shield of achilles. in the homeric trial-scene, the dispute, as if expressly intended to bring out the characteristics of primitive society, is not about property but about the composition for a homicide. one person asserts that he has paid it, the other that he has never received it. the point of detail, however, which stamps the picture as the counterpart of the archaic roman practice is the reward designed for the judges. two talents of gold lie in the middle, to be given to him who shall explain the grounds of the decision most to the satisfaction of the audience. the magnitude of this sum as compared with the trifling amount of the sacramentum seems to me indicative of the indifference between fluctuating usage and usage consolidated into law. the scene introduced by the poet as a striking and characteristic, but still only occasional, feature of city-life in the heroic age has stiffened, at the opening of the history of civil process, into the regular, ordinary formalities of a lawsuit. it is natural therefore that in the legis actio the remuneration of the judge should be reduced to a reasonable sum, and that, instead of being adjudged to one of a number of arbitrators by popular acclamation, it should be paid as a matter of course to the state which the prætor represents. but that the incidents described so vividly by homer, and by gaius with even more than the usual crudity of technical language, have substantially the same meaning, i cannot doubt; and, in confirmation of this view, it may be added that many observers of the earliest judicial usages of modern europe have remarked that the fines inflicted by courts on offenders were originally _sacramenta_. the state did not take from the defendant a composition for any wrong supposed to be done to itself, but claimed a share in the compensation awarded to the plaintiff simply as the fair price of its time and trouble. mr. kemble expressly assigns this character to the anglo-saxon _bannum_ or _fredum_. ancient law furnishes other proofs that the earliest administrators of justice simulated the probable acts of persons engaged in a private quarrel. in settling the damages to be awarded, they took as their guide the measure of vengeance likely to be exacted by an aggrieved person under the circumstances of the case. this is the true explanation of the very different penalties imposed by ancient law on offenders caught in the act or soon after it and on offenders detected after considerable delay. some strange exemplifications of this peculiarity are supplied by the old roman law of theft. the laws of the twelve tables seem to have divided thefts into manifest and non-manifest, and to have allotted extraordinarily different penalties to the offence according as it fell under one head or the other. the manifest thief was he who was caught within the house in which he had been pilfering, or who was taken while making off to a place of safety with the stolen goods; the twelve tables condemned him to be put to death if he were already a slave, and, if he was a freeman, they made him the bondsman of the owner of the property. the non-manifest thief was he who was detected under any other circumstances than those described; and the old code simply directed that an offender of this sort should refund double the value of what he had stolen. in gaius's day the excessive severity of the twelve tables to the manifest thief had naturally been much mitigated, but the law still maintained the old principle by mulcting him in fourfold the value of the stolen goods, while the non-manifest thief still continued to pay merely the double. the ancient lawgiver doubtless considered that the injured proprietor, if left to himself, would inflict a very different punishment when his blood was hot from that with which he would be satisfied when the thief was detected after a considerable interval; and to this calculation the legal scale of penalties was adjusted. the principle is precisely the same as that followed in the anglo-saxon and other germanic codes, when they suffer a thief chased down and caught with the booty to be hanged or decapitated on the spot, while they exact the full penalties of homicide from anybody who kills him after the pursuit has been intermitted. these archaic distinctions bring home to us very forcibly the distance of a refined from a rude jurisprudence. the modern administrator of justice has confessedly one of the hardest tasks before him when he undertakes to discriminate between the degrees of criminality which belong to offences falling within the same technical description. it is always easy to say that a man is guilty of manslaughter, larceny, or bigamy, but it is often most difficult to pronounce what extent of moral guilt he has incurred, and consequently what measure of punishment he has deserved. there is hardly any perplexity in casuistry, or in the analysis of motive, which we may not be called upon to confront, if we attempt to settle such a point with precision; and accordingly the law of our day shows an increasing tendency to abstain as much as possible from laying down positive rules on the subject. in france, the jury is left to decide whether the offence which it finds committed has been attended by extenuating circumstances; in england, a nearly unbounded latitude in the selection of punishments is now allowed to the judge; while all states have in reserve an ultimate remedy for the miscarriages of law in the prerogative of pardon, universally lodged with the chief magistrate. it is curious to observe how little the men of primitive times were troubled with these scruples, how completely they were persuaded that the impulses of the injured person were the proper measure of the vengeance he was entitled to exact, and how literally they imitated the probable rise and fall of his passions in fixing their scale of punishment. i wish it could be said that their method of legislation is quite extinct. there are, however, several modern systems of law which, in cases of graver wrong, admit the fact of the wrong-doer having been taken in the act to be pleaded in justification of inordinate punishment inflicted on him by the sufferer--an indulgence which, though superficially regarded it may seem intelligible, is based, as it seems to me, on a very low morality. nothing, i have said, can be simpler than the considerations which ultimately led ancient societies to the formation of a true criminal jurisprudence. the state conceived itself to be wronged, and the popular assembly struck straight at the offender with the same movement which accompanied its legislative action. it is further true of the ancient world--though not precisely of the modern, as i shall have occasion to point out--that the earliest criminal tribunals were merely subdivisions, or committees, of the legislature. this, at all events, is the conclusion pointed at by the legal history of the two great states of antiquity, with tolerable clearness in one case, and with absolute distinctness in the other. the primitive penal law of athens entrusted the castigation of offences partly to the archons, who seem to have punished them as _torts_, and partly to the senate of areopagus, which punished them as _sins_. both jurisdictions were substantially transferred in the end to the heliæa, the high court of popular justice, and the functions of the archons and of the areopagus became either merely ministerial or quite insignificant. but "heliæa" is only an old word for assembly; the heliæa of classical times was simply the popular assembly convened for judicial purposes, and the famous dikasteries of athens were only its subdivisions or panels. the corresponding changes which occurred at rome are still more easily interpreted, because the romans confined their experiments to the penal law, and did not, like the athenians, construct popular courts with a civil as well as a criminal jurisdiction. the history of roman criminal jurisprudence begins with the old judicia populi, at which the kings are said to have presided. these were simply solemn trials of great offenders under legislative forms. it seems, however, that from an early period the comitia had occasionally delegated its criminal jurisdiction to a quæstio or commission, which bore much the same relation to the assembly as a committee of the house of commons bears to the house itself, except that the roman commissioners or quæstores did not merely _report_ to the comitia, but exercised all powers which that body was itself in the habit of exercising, even to the passing sentence on the accused. a quæstio of this sort was only appointed to try a particular offender, but there was nothing to prevent two or three quæstiones sitting at the same time; and it is probable that several of them were appointed simultaneously, when several grave cases of wrong to the community had occurred together. there are also indications that now and then these quæstiones approached the character of our _standing_ committees, in that they were appointed periodically, and without waiting for occasion to arise in the commission of some serious crime. the old quæstores parricidii, who are mentioned in connection with transactions of very ancient date, as being deputed to try (or, as some take it, to search out and try) all cases of parricide and murder, seem to have been appointed regularly every year; and the duumviri perduellionis, or commission of two for trial of violent injury to the commonwealth, are also believed by most writers to have been named periodically. the delegations of power to these latter functionaries bring us some way forwards. instead of being appointed _when and as_ state-offences were committed, they had a general, though a temporary jurisdiction over such as _might_ be perpetrated. our proximity to a regular criminal jurisprudence is also indicated by the general terms "parricidium" and "perduellio" which mark the approach to something like a classification of crimes. the true criminal law did not however come into existence till the year b.c. , when l. calpurnius piso carried the statute known as the lex calpurnia de repetundis. the law applied to cases repetundarum pecuniarum, that is, claims by provincials to recover monies improperly received by a governor-general, but the great and permanent importance of this statute arose from its establishing the first quæstio perpetua. a quæstio perpetua was a _permanent_ commission as opposed to those which were occasional and to those which were temporary. it was a regular criminal tribunal whose existence dated from the passing of the statute creating it and continued till another statute should pass abolishing it. its members were not specially nominated, as were the members of the older quæstiones, but provision was made in the law constituting it for selecting from particular classes the judges who were to officiate, and for renewing them in conformity with definite rules. the offences of which it took cognisance were also expressly named and defined in this statute, and the new quæstio had authority to try and sentence all persons in future whose acts should fall under the definitions of crime supplied by the law. it was therefore a regular criminal judicature, administering a true criminal jurisprudence. the primitive history of criminal law divides itself therefore into four stages. understanding that the conception of _crime_, as distinguished from that of _wrong_ or _tort_ and from that of _sin_, involves the idea of injury to the state or collective community, we first find that the commonwealth, in literal conformity with the conception, itself interposed directly, and by isolated acts, to avenge itself on the author of the evil which it had suffered. this is the point from which we start; each indictment is now a bill of pains and penalties, a special law naming the criminal and prescribing his punishment. a _second_ step is accomplished, when the multiplicity of crimes compels the legislature to delegate its powers to particular quæstiones or commissions, each of which is deputed to investigate a particular accusation, and if it be proved, to punish the particular offender. yet _another_ movement is made when the legislature, instead of waiting for the alleged commission of a crime as the occasion of appointing a quæstio, periodically nominates commissioners like the quæstores parricidii and the duumviri perduellionis, on the chance of certain classes of crimes being committed, and in the expectation that they _will_ be perpetrated. the _last_ stage is reached when the quæstiones from being periodical or occasional become permanent benches or chambers--when the judges, instead of being named in the particular law nominating the commission, are directed to be chosen through all future time in a particular way and from a particular class--and when certain acts are described in general language and declared to be crimes, to be visited, in the event of their perpetration, with specified penalties appropriated to each description. if the quæstiones perpetuæ had had a longer history, they would doubtless have come to be regarded as a distinct institution, and their relation to the comitia would have seemed no closer than the connection of our own courts of law with the sovereign, who is theoretically the fountain of justice. but the imperial despotism destroyed them before their origin had been completely forgotten, and, so long as they lasted, these permanent commissions were looked upon by the romans as the mere depositaries of a delegated power. the cognisance of crimes was considered a natural attribute of the legislature, and the mind of the citizen never ceased to be carried back from the quæstiones, to the comitia which had deputed them to put into exercise some of its own inalienable functions. the view which regarded the quæstiones, even when they became permanent, as mere committees of the popular assembly--as bodies which only ministered to a higher authority--had some important legal consequences which left their mark on the criminal law to the very latest period. one immediate result was that the comitia continued to exercise criminal jurisdiction by way of bill of pains and penalties, long after the quæstiones had been established. though the legislature had consented to delegate its powers for the sake of convenience to bodies external to itself, it did not follow that it surrendered them. the comitia and the quæstiones went on trying and punishing offenders side by side; and any unusual outburst of popular indignation was sure, until the extinction of the republic, to call down upon its object an indictment before the assembly of the tribes. one of the most remarkable peculiarities of the institutions of the republic is also traceable to this dependance of the quæstiones on the comitia. the disappearance of the punishment of death from the penal system of republican rome used to be a very favourite topic with the writers of the last century, who were perpetually using it to point some theory of the roman character or of modern social economy. the reason which can be confidently assigned for it stamps it as purely fortuitous. of the three forms which the roman legislature successively assumed, one, it is well known--the comitia centuriata--was exclusively taken to represent the state as embodied for military operations. the assembly of the centuries, therefore, had all powers which may be supposed to be properly lodged with a general commanding an army, and, among them, it had authority to subject all offenders to the same correction to which a soldier rendered himself liable by breaches of discipline. the comitia centuriata could therefore inflict capital punishment. not so, however, the comitia curiata or comitia tributa. they were fettered on this point by the sacredness with which the person of a roman citizen, inside the walls of the city, was invested by religion and law; and, with respect to the last of them, the comitia tributa, we know for certain that it became a fixed principle that the assembly of the tribes could at most impose a fine. so long as criminal jurisdiction was confined to the legislature, and so long as the assemblies of the centuries and of the tribes continued to exercise co-ordinate powers, it was easy to prefer indictments for graver crimes before the legislative body which dispensed the heavier penalties; but then it happened that the more democratic assembly, that of the tribes, almost entirely superseded the others, and became the ordinary legislature of the later republic. now the decline of the republic was exactly the period during which the quæstiones perpetuæ were established, so that the statutes creating them were all passed by a legislative assembly which itself could not, at its ordinary sittings, punish a criminal with death. it followed that the permanent judicial commissions, holding a delegated authority, were circumscribed in their attributes and capacities by the limits of the powers residing with the body which deputed them. they could do nothing which the assembly of the tribes could not have done; and, as the assembly could not sentence to death, the quæstiones were equally incompetent to award capital punishment. the anomaly thus resulting was not viewed in ancient times with anything like the favour which it has attracted among the moderns, and indeed, while it is questionable whether the roman character was at all the better for it, it is certain that the roman constitution was a great deal the worse. like every other institution which has accompanied the human race down the current of its history, the punishment of death is a necessity of society in certain stages of the civilising process. there is a time when the attempt to dispense with it baulks both of the two great instincts which lie at the root of all penal law. without it, the community neither feels that it is sufficiently revenged on the criminal, nor thinks that the example of his punishment is adequate to deter others from imitating him. the incompetence of the roman tribunals to pass sentence of death led distinctly and directly to those frightful revolutionary intervals, known as the proscriptions, during which all law was formally suspended simply because party violence could find no other avenue to the vengeance for which it was thirsting. no cause contributed so powerfully to the decay of political capacity in the roman people as this periodical abeyance of the laws; and, when it had once been resorted to, we need not hesitate to assert that the ruin of roman liberty became merely a question of time. if the practice of the tribunals had afforded an adequate vent for popular passion, the forms of judicial procedure would no doubt have been as flagrantly perverted as with us in the reigns of the later stuarts, but national character would not have suffered as deeply as it did, nor would the stability of roman institutions have been as seriously enfeebled. i will mention two more singularities of the roman criminal system which were produced by the same theory of judicial authority. they are, the extreme multiplicity of the roman criminal tribunals, and the capricious and anomalous classification of crimes which characterised roman penal jurisprudence throughout its entire history. every _quæstio_, it has been said, whether perpetual or otherwise, had its origin in a distinct statute. from the law which created it, it derived its authority; it rigorously observed the limits which its charter prescribed to it, and touched no form of criminality which that charter did not expressly define. as then the statutes which constituted the various quæstiones were all called forth by particular emergencies, each of them being in fact passed to punish a class of acts which the circumstances of the time rendered particularly odious or particularly dangerous, these enactments made not the slightest reference to each other, and were connected by no common principle. twenty or thirty different criminal laws were in existence together, with exactly the same number of quæstiones to administer them; nor was any attempt made during the republic to fuse these distinct judicial bodies into one, or to give symmetry to the provisions of the statutes which appointed them and defined their duties. the state of the roman criminal jurisdiction at this period, exhibited some resemblances to the administration of civil remedies in england at the time when the english courts of common law had not as yet introduced those fictitious averments into their writs which enabled them to trespass on each other's peculiar province. like the quæstiones, the courts of queen's bench, common pleas, and exchequer were all theoretical emanations from a higher authority, and each entertained a special class of cases supposed to be committed to it by the fountain of its jurisdiction; but then the roman quæstiones were many more than three in number, and it was infinitely less easy to discriminate the acts which fell under the cognisance of each quæstio, than to distinguish between the provinces of the three courts in westminster hall. the difficulty of drawing exact lines between the spheres of the different quæstiones made the multiplicity of roman tribunals something more than a mere inconvenience; for we read with astonishment that when it was not immediately clear under what general description a man's alleged offences ranged themselves, he might be indicted at once or successively before several different commissions, on the chance of some one of them declaring itself competent to convict him; and, although conviction by one quæstio ousted the jurisdiction of the rest, acquittal by one of them could not be pleaded to an accusation before another. this was directly contrary to the rule of the roman civil law; and we may be sure that a people so sensitive as the romans to anomalies (or, as their significant phrase was, to _inelegancies_) in jurisprudence, would not long have tolerated it, had not the melancholy history of the quæstiones caused them to be regarded much more as temporary weapons in the hands of factions than as permanent institutions for the correction of crime. the emperors soon abolished this multiplicity and conflict of jurisdiction; but it is remarkable that they did not remove another singularity of the criminal law which stands in close connection with the number of the courts. the classifications of crimes which are contained even in the corpus juris of justinian are remarkably capricious. each quæstio had, in fact, confined itself to the crimes committed to its cognisance by its charter. these crimes, however, were only classed together in the original statute because they happened to call simultaneously for castigation at the moment of passing it. they had not therefore anything necessarily in common; but the fact of their constituting the particular subject-matter of trials before a particular quæstio impressed itself naturally on the public attention, and so inveterate did the association become between the offences mentioned in the same statute that, even when formal attempts were made by sylla and by the emperor augustus to consolidate the roman criminal law, the legislator preserved the old grouping. the statutes of sylla and augustus were the foundation of the penal jurisprudence of the empire, and nothing can be more extraordinary than some of the classifications which they bequeathed to it. i need only give a single example in the fact that _perjury_ was always classed with _cutting and wounding_ and with _poisoning_, no doubt because a law of sylla, the lex cornelia de sicariis et veneficis, had given jurisdiction over all these three forms of crime to the same permanent commission. it seems too that this capricious grouping of crimes affected the vernacular speech of the romans. people naturally fell into the habit of designating all the offences enumerated in one law by the first name on the list, which doubtless gave its style to the law court deputed to try them all. all the offences tried by the quæstio de adulteriis would thus be called adultery. i have dwelt on the history and characteristics of the roman quæstiones because the formation of a criminal jurisprudence is nowhere else so instructively exemplified. the last quæstiones were added by the emperor augustus, and from that time the romans may be said to have had a tolerably complete criminal law. concurrently with its growth, the analogous process had gone on, which i have called the conversion of wrongs into crimes, for, though the roman legislature did not extinguish the civil remedy for the more heinous offences, it offered the sufferer a redress which he was sure to prefer. still, even after augustus had completed his legislation, several offences continued to be regarded as wrongs, which modern societies look upon exclusively as crimes; nor did they become criminally punishable till some late but uncertain date, at which the law began to take notice of a new description of offences called in the digest _crimina extraordinaria_. these were doubtless a class of acts which the theory of roman jurisprudence treated merely as wrongs; but the growing sense of the majesty of society revolted from their entailing nothing worse on their perpetrator than the payment of money damages, and accordingly the injured person seems to have been permitted, if he pleased, to pursue them as crimes _extra ordinem_, that is by a mode of redress departing in some respect or other from the ordinary procedure. from the period at which these _crimina extraordinaria_ were first recognised, the list of crimes in the roman state must have been as long as in any community of the modern world. it is unnecessary to describe with any minuteness the mode of administering criminal justice under the roman empire, but it is to be noted that both its theory and practice have had powerful effect on modern society. the emperors did not immediately abolish the quæstiones, and at first they committed an extensive criminal jurisdiction to the senate, in which, however servile it might show itself in fact, the emperor was no more nominally than a senator like the rest. but some sort of collateral criminal jurisdiction had been claimed by the prince from the first; and this, as recollections of the free commonwealth decayed, tended steadily to gain at the expense of the old tribunals. gradually the punishment of crimes was transferred to magistrates directly nominated by the emperor and the privileges of the senate passed to the imperial privy council, which also became a court of ultimate criminal appeal. under these influences the doctrine, familiar to the moderns, insensibly shaped itself that the sovereign is the fountain of all justice and the depositary of all grace. it was not so much the fruit of increasing adulation and servility as of the centralisation of the empire which had by this time perfected itself. the theory of criminal justice had, in fact, worked round almost to the point from which it started. it had begun in the belief that it was the business of the collective community to avenge its own wrongs by its own hand; and it ended in the doctrine that the chastisement of crimes belonged in an especial manner to the sovereign as representative and mandatary of his people. the new view differed from the old one chiefly in the air of awfulness and majesty which the guardianship of justice appeared to throw around the person of the sovereign. this later roman view of the sovereign's relation to justice certainly assisted in saving modern societies from the necessity of travelling through the series of changes which i have illustrated by the history of the quæstiones. in the primitive law of almost all the races which have peopled western europe there are vestiges of the archaic notion that the punishment of crimes belongs to the general assembly of freemen; and there are some states--scotland is said to be one of them--in which the parentage of the existing judicature can be traced up to a committee of the legislative body. but the development of the criminal law was universally hastened by two causes, the memory of the roman empire and the influence of the church. on the one hand traditions of the majesty of the cæsars, perpetuated by the temporary ascendency of the house of charlemagne, were surrounding sovereigns with a prestige which a mere barbarous chieftain could never otherwise have acquired and were communicating to the pettiest feudal potentate the character of guardian of society and representative of the state. on the other hand, the church, in its anxiety to put a curb on sanguinary ferocity, sought about for authority to punish the graver misdeeds, and found it in those passages of scripture which speak with approval of the powers of punishment committed to the civil magistrate. the new testament was appealed to as proving that secular rulers exist for the terror of evildoers; the old testament, as laying down that "whoso sheddeth man's blood, by man shall his blood be shed." there can be no doubt, i imagine, that modern ideas on the subject of crime are based upon two assumptions contended for by the church in the dark ages--first, that each feudal ruler, in his degree, might be assimilated to the roman magistrates spoken of by saint paul; and next, that the offences which he was to chastise were those selected for prohibition in the mosaic commandments, or rather such of them as the church did not reserve to her own cognisance. heresy (supposed to be included in the first and second commandments), adultery, and perjury were ecclesiastical offences, and the church only admitted the co-operation of the secular arm for the purpose of inflicting severer punishment in cases of extraordinary aggravation. at the same time, she taught that murder and robbery with their various modifications were under the jurisdiction of civil rulers, not as an accident of their position but by the express ordinance of god. there is a passage in the writings of king alfred (kemble, ii. ) which brings out into remarkable clearness the struggle of the various ideas that prevailed in his day as to the origin of criminal jurisdiction. it will be seen that alfred attributes it partly to the authority of the church and partly to that of the witan, while he expressly claims for treason against the lord the same immunity from ordinary rules which the roman law of majestas had assigned to treason against the cæsar. "after this it happened," he writes, "that many nations received the faith of christ, and there were many synods assembled throughout the earth, and among the english race also after they had received the faith of christ, both of holy bishops and of their exalted witan. they then ordained that, out of that mercy which christ had taught, secular lords, with their leave, might without sin take for every misdeed the _bot_ in money which they ordained; except in cases of treason against a lord, to which they dared not assign any mercy because almighty god adjudged none to them that despised him, nor did christ adjudge any to them which sold him to death; and he commanded that a lord should be loved like himself." index austin, , ; _province of jurisprudence determined_, ayala, bentham, , , , , ; _fragment on government_, blackstone, , , , _cambridge essays_, , maine, , capture in war, , casuistry, , , charlemagne, , codes, attic of solon, ; era of, ; first introduced into the west, ; hindoo law of menu, - ; justinian, , ; napoléon, ; roman, superiority over hindoo, - ; twelve tables of rome, , , , , contract, austin on, ; bentham on, ; imperative law, ; judicial and popular error, ; law of nations, , , ; literal or written, ; origin lies in the family, ; pact or convention, , ; real, ; roman, classification, , ; consensual, - ; domestic system, ; nexum, definition of, - ; rousseau, ; sale, conveyances and contracts, confusion between, - ; and mancipation, _corpus juris civilis_, creditors, powers of, in ancient system, crimes and wrongs, confusion between, , ; distinction between primitive and modern, , ; kemble in _anglo-saxons_, criminal law, athens, ; degree of guilt, ; four stages of primitive history, ; influence of church, ; primitive religious code, , ; roman, crime against state, ; b.c. , ; origin of, ; sentence of death, - ; theft, , ; tribunals, - ; under emperors, - customary law, epoch of, , ; hindoo, dangers of law, rigidity, too rapid development, , debtors, severity of ancient system, equity, ; early history of, ; lord eldon on, ; english, , ; meaning of, ; origin, , ; roman compared with english, - feudalism, explanation of, gaius, , , - grote, decline of kingly rule, ; _history of greece_, , ; law administered by aristocracies, grotius, hugo, , , , ; _de jure belli et pacis_, homer, earliest notions of law derived from, , ; themis, themistes, - indian (hindoo) law, _see_ separate headings codes, customary, primogeniture, property, testamentary law, village communities institutional treatise (justinian), international law, ; and occupancy, law of nations (jus gentium), incorporation with roman law, , ; origin of, - legal fictions, benefit of, ; examples in english law, ; in roman law, , ; meaning, useful purpose of, , legis actio sacramenti, gaius on, , legislation, the agent of legal improvement, ; differing from equity, legal fictions, , _lettres persanes_, maine, _cambridge essays_, , , mancipation, , , - , menu, laws of, - montesquieu, , , natural law (law of nature), american law and, ; antagonistic to historical method, ; confusing past with present, ; equality of man, - ; equality of sex, ; feudalism, , ; french history, , , , ; french law, ; greek interpretation of, ; grotian system, , , , - ; incorporated with roman law, , ; influence of stoics, , ; modern international law, - ; most critical period, ; modern society, ; occupancy, - , ; origin of, , ; private property, ; rousseau on, ; slavery, ; territorial sovereignty, - ; testamentary law, , occupancy, , ; in roman law, pascal, _provincial letters_, prescriptions, , ; and canon law, primogeniture, celtic customs, , ; feudal system, - ; hindoo law, , , ; mahometan law, ; roman law, , property, natural modes of acquiring, property law, ancient germanic, , ancient sclavonic, ; descent in middle ages, ; indian law, ; origin of, ; possession, , ; private, ancient forms of transfer, , - ; roman, , , ; cessio in jure, ; edictum perpetuum, ; emphyteusis, - ; gaius on, ; justinian, ; law of persons and things, ; mancipation, , ; possessory interdicts, ; praetor's interdict, ; res mancipi, - , ; res nec mancipi, ; system of farming, ; usucapion, , , roman law, _see_ separate headings contracts, criminal, property, occupancy, testamentary; decemviral law, ; definition of inheritance, ; end of period of jurists, ; influence of praetor, ; intestacy, - ; law of inheritance, ; leges corneliae, , ; leges juliae, ; marriage, ; obligation in, , , , ; pandects of justinian, ; powers of praetor, , ; praetorian edict, , ; responsa prudentum, , , ; reverence of romans for, ; statute law, ; twelve tables, , , , , rousseau, on social contract, savigny, ; on occupancy, slavery, american opinions of, ; influence of law of nature upon, ; roman system, - status, definition of, testamentary law, adoption and testation, , ; church's influence upon, ; corporation, aggregate and sole, ; hindoo law, , ; hindoo compared with roman, ; law of nature, , ; roman law, , , - ; mancipation, , ; praetorian testament, - ; twelve tables, , , ; roman family, agnatic and cognatic relationship, - ; duties and rights of father, ; effects of christianity, ; family, the basis of state, , ; kinship, , ; modification of parental privileges, ; origin of contract in, ; origin of law of persons, ; parental powers, - , theology, and jurisprudence, - ; moral, , theories, based on roman doctrine, bentham, ; blackstone, ; differing from roman glossators, annotations of, ; grotius, ; jurisprudence, dissatisfaction with, ; locke, ; montesquieu, ; patriarchal, - universal succession, ; in roman law, , "universatis juris," village communities, indian, , , , ; indian, compared with roman gens, ; indian, elphinstone, _history of india_, , ; russian women, ancient rules defeated by natural law, ; canon law, ; english common law, , ; roman family, , ; gradual independence under roman law, , ; roman, perpetual tutelage of, ; under roman law, , ; subordination to husband in middle ages, ; subordination of roman to relations, made at the temple press letchworth in great britain [illustration: the old courthouse about . copy courtesy lee hubbard.] the fairfax county courthouse [illustration] the fairfax county courthouse by ross d. netherton and ruby waldeck published by the fairfax county office of comprehensive planning under the direction of the county board of supervisors in cooperation with the fairfax county history commission july the following history publications are available from: fairfax county administrative services fairfax building main street fairfax, va. - - _beginning at a white oak.... the patents and northern neck grants of fairfax county, virginia_--mitchell _carlby_--spann _centreville_: its history and architecture--smith _colchester_: colonial port on the potomac--sprouse _colvin run mill_--netherton _dunbarton, dranesville, virginia_--poland _the fairfax county courthouse_--netherton and waldeck _the fairfax county courthouse_-- --ocp--brochure _fairfax county in virginia: selections from some rare sources_--ocp _fairfax county tour map_--ocp and history commission _fairfax family in fairfax county: a brief history_--kilmer and sweig _historic preservation for fairfax county_--ocp _historical highlights of bull run regional park_--cooling _huntley_--wrenn _indices to selected maps from hopkins' atlas, _--mcmillion _maplewood_--rafuse _moorefield_--dibacco _mount air_--sprouse _registrations of free blacks, fairfax county, virginia, - _--ed. sweig _wakefield chapel_--evans * * * * * _sully: the biography of a house_--gamble book available from the fairfax county park authority * * * * * library of congress catalog card number - table of contents illustrations acknowledgments foreword introduction i. fairfax county's early courthouses: - ii. the providence courthouse and its related buildings: - iii. the county court and its officers iv. the war years: - v. the years of rebuilding: - vi. the twentieth century courthouse vii. the architecture of the courthouse and its related buildings . the courthouse complex . the courthouse . restoration of the original wing of the courthouse, appendixes a. county court clerks: - b. justices and judges: - c. portraits in the old courthouse--biographies d. clerk's office specifications, _alexandria gazette_, july , e. schedule of reconstruction of the courthouse, list of sources illustrations front cover--courthouse about back cover--court papers, five colonial justices of the fairfax county court: george washington; george mason; thomas, sixth lord fairfax; george william fairfax; and bryan, eighth lord fairfax cartograph of alexandria courthouse square surveys of courthouse lot, - civil war view, hopkins' map of fairfax court house, marr monument's dedication, the tavern, c. courthouse picture two aerials of the courthouse and county center complex, s clerk's office, county jail, police department, c. naval cannon marr monument war memorial plaques central staircase mural th century english town and market halls two-story windows, c. ; double row windows, courtroom remodeled in central entrance, addition floor plans three views of the gutted courthouse, two interiors of the courthouse restoration, c. acknowledgments this monograph is one of a series of research reports on the historical and architectural landmarks of fairfax county, virginia. it has been prepared under the supervision of the fairfax county office of comprehensive planning, in cooperation with the fairfax county history commission, pursuant to a resolution of the board of county supervisors calling for a survey of the county's historic sites and buildings. the authors of this report wish to acknowledge with thanks the assistance of lindsey carne, mrs. j. h. elliott, lee hubbard, mrs. jean johnson rust, and mrs. barry sullivan, who provided information and graphics for this publication. also valuable were the comments of the honorable james keith, circuit court judge; mrs. edith m. sprouse; john k. gott; mrs. catharine ratiner; and mayo s. stuntz, all of whom reviewed the manuscript with care prior to its final revisions. special thanks are tendered to the honorable thomas p. chapman, jr. and the honorable w. franklin gooding, former clerks of the courts of fairfax county; the honorable james hoofnagle, present clerk of the courts; and to walter m. macomber, architect of the reconstruction of the original wing of the courthouse, who granted extensive interviews which filled many of the gaps created by lack of documentary sources. throughout the entire research and writing of this report, the authors received valuable guidance and comments from the members of the fairfax county history commission and assistance from the staffs of the fairfax county public library and the virginia state library. finally, the authors acknowledge with thanks the help of jay linard, mrs. verna mcfeaters, ms. virginia inge, ms. irene rouse, ms. annette thomas, and ms. robin pedlar in manuscript preparation. ross netherton ruby waldeck foreword _the fairfax county courthouse_ is an important addition to the historical record of fairfax county, virginia. it brings together in one volume a history of the fairfax county courthouses and a manual of the organization and operation of governmental affairs centered within them over the years. a particular insight with regard to the early years of the county is evident. dr. netherton and mrs. waldeck describe the consequential role the courthouse enjoyed as a social center as they examine the governmental role which made it the centerpiece of fairfax county. the reader will note that the early fairfax county officials gained an understanding of the importance of democratic government in our nation through their participation in county government while the people they served developed a sense of community through their interaction at the courthouse. the present courthouse stands as a monument to the governmental and social prosperity fairfax county has enjoyed. this text documents the story of the building which has stood at the center of almost two centuries of political life in fairfax county. the extensive footnotes will prove an invaluable aid to scholars exploring the history of the county. history students in our county's schools will find _the fairfax county courthouse_ an important addition to their reading lists. we are all indebted to ross netherton and ruby waldeck for their contribution in casting such a revealing light upon the roots of fairfax county, her people and government. james e. hoofnagle clerk of the fairfax county court introduction each generation of americans has acknowledged its debt to virginia's leaders whose skill in politics was demonstrated so well in a half-century that saw independence achieved and a new republic established. they were products of a system of government which itself had been perfected over more than years before the colonies declared their independence. to these men--george washington, george mason, thomas jefferson, patrick henry, john marshall, george wythe, james madison, and the carters--the county court was an academy for education in the art of government. important as it was to sit in the house of burgesses at williamsburg, the lessons of politics and public administration were learned best in the work of carrying on the government of a county. virginia counties were unique in colonial history, for the considerable degree of autonomy enjoyed by the county courts gave them both a taste of responsibility for a wide range of public affairs and a measure of insulation from the changes of political fortune which determined events in williamsburg, and later richmond. in virginia, the county courthouse was the focal point of public affairs. usually built in a central location, with more regard for accessibility from all corners of the county than for proximity to established centers of commerce, the courthouse came to be a unique complex of buildings related to the work of the court. in time, most of these clusters of buildings grew into towns or cities, but throughout the eighteenth and nineteenth centuries many places shown on virginia maps as "court house" consisted literally of a county courthouse and its related structures standing alone beside a crossroads. on court days, however, the scene changed. the monthly sessions of the court, conducted in colonial times by the "gentleman justices", provided opportunities to transact all manner of public business--from issuing licenses and collecting taxes to hearing litigation and holding elections. they also were social events and market days; there people came to meet their friends, hear the news, see who came circuit-riding with the justices, sell their produce, and buy what they needed. in the two centuries since independence, profound changes have occurred in all phases of life that were centered in the courthouse. in fairfax county, the pace and extent of these changes have been extensive. architectural historians who note uniqueness in the fact that virginia courthouses developed as a complex of related buildings may see ominous symbolism in the fact that today one of the structures in the cluster around fairfax county's courthouse is a modern fifteen-story county office building. yet, at the same time this office building was being planned, workmen were rehabilitating the original section of the courthouse to represent its presumed appearance in an earlier time, thus providing a reminder of the historic role of county government in virginia. [illustration: five colonial justices of the fairfax county court--george mason.] [illustration: five colonial justices of the fairfax county court--george washington.] [illustration: five colonial justices of the fairfax county court--bryan, later eighth lord fairfax.] [illustration: five colonial justices of the fairfax county court--thomas, sixth lord fairfax.] [illustration: five colonial justices of the fairfax county court--george william fairfax.] chapter i fairfax county's early courthouses, - once the survival of the colony of jamestown seemed assured, provision for the efficient and orderly conduct of public affairs received attention. the jamestown colonist and his backers in the virginia company of london were familiar with county government structure in england, and from early colonial times the county was the basic unit of local government in virginia. in the concept of county government, the role of the county court was central. as early as , governor sir george yeardley established the prototype of the county court in his order stating that "a county court be held in convenient places, to sit monthly, and to hear civil and criminal cases."[ ] the magistrates or justices who comprised the court were, as might be expected, the owners of the large plantations and estates in the vicinity, and all were used to administering the affairs of the people and lands under their control. accordingly, administrative duties as well as judicial duties were given to the court, and the justices' responsibilities included such matters as the issuance of marriage licenses, the planning of roads, and assessment of taxes.[ ] colonial virginia statutes specified that each county should "cause to be built a courthouse of brick, stone or timber; one common gaol, well-secured with iron bars, bolts and locks, one pillory, whipping post and stocks."[ ] in addition, the law authorized construction of a ducking stool, if deemed necessary, and required establishment of a -acre tract in which those imprisoned for minor crimes might, on good behavior, walk for exercise. in addition, buildings were customarily provided to house the office of the clerk of the court, and to accommodate the justices of the assize and their entourage of lawyers and others who accompanied them as they rode circuit among the counties of the colony. in england, the "assizes" were sessions of the justices' courts which met, generally twice a year in each shire, for trial of questions of fact in both civil and criminal cases. the county courts in colonial virginia continued to be called assizes for much of the th century. when events moved toward the partition of prince william county to create the county of fairfax, the journal of the governor in council in williamsburg recorded the following entry: saturday, june ye th, .... ordered that the court-house for fairfax county be appointed at a place call'd spring fields scituated between the new church and ox road in the branches of difficult run, hunting creek and accotinck.[ ] whether this was the first seat of the fairfax county court is not positively known. it is possible that the first sessions of the court may have been held at colchester. although no records of the transactions at these sessions have been found, an early history of the county cites entries in an early deed book which order the removal of the county court's records from colchester to a new courthouse more centrally located in the county.[ ] be this as it may, the plan to establish a courthouse which was formalized by the governor in council apparently was deliberately designed to accommodate the increasing settlement of areas inland from the river plantations--an interest which the proprietor, thomas sixth lord fairfax, shared. "spring fields", the site of the court house, was part of a tract of , acres owned in by john colvill, and conveyed by him in that year to william fairfax.[ ] in this tract were numerous springs forming the sources of difficult run, accotinck creek, wolf trap run, scott's run and pimmit run. it was high ground, comprising part of the plateau area of the northern part of the county, and the site selected for the courthouse had a commanding view for many miles around. the location specified in the council order was on the new church road (later known variously as the eastern ridge road, the alexandria-leesburg road, or the middle turnpike) running from the falls church to vestal's gap in the blue ridge mountains, at a point where this road intersected the ox road, running north and west from the mouth of the occoquan river. a map of also shows roads running from the courthouse west in the direction of aldie, and southwest toward newgate (now called centreville).[ ] the site was roughly equidistant for persons coming from alexandria, newgate, and the goose creek settlements, but somewhat farther for those from colchester. the land on which courthouse was built was conveyed to the county by deed from william fairfax, dated september , ,[ ] and described six acres "where the court house of the said county is to be built and erected," to be held by the county "during the time the said court shall be located there but no longer." according to a survey made in march , the site was a rectangle, poles long by poles wide, described in metes and bounds starting from a post on the west side of "court house spring branch".[ ] no other landmarks or monuments capable of surviving to modern times were mentioned in the deed, and today the site of the springfield courthouse can be determined as approximately one-quarter mile south and west of tyson's corner. having in mind the statutory requirements, it is presumed that the complex of buildings at springfield consisted of a courthouse, a jail with related structures, a clerk's office, and one or more "necessary houses" (outhouses), all conveniently located with respect to each other and the roads. county records show surveys for two ordinaries (inns) located on or adjacent to the courthouse tract. one of these, surveyed in , was a two-acre parcel containing john west's ordinary and related buildings, and the other, also surveyed in , was for one acre within the courthouse tract on which john colvill was allowed to build an ordinary. no contemporary descriptions of the courthouse have survived, but it is likely that the buildings were of log construction, on stone foundations, with brick chimneys. a -foot-square addition to the courthouse was ordered in , with the specification that it have a brick chimney.[ ] an item from the court order book, dated december , , states: on motion of the clerk of the court that papers lying on the table are frequently mixed and confused, and many times thrown down by persons crowding in and throwing their hats and gloves on the said table, the ill consequences thereof being considered, it is ordered that charles broadwater, gent. agree with some workman to erect a bar around the said clerk's table for the better security of the books and papers.[ ] [illustration: cartograph of the market square and fairfax county courthouse in alexandria, as they might have appeared in the eighteenth century. drawn by worth bailey, .] in , fairfax county's western border closely approached the edge of english settlement in virginia. settlements in the western part of the county were growing far less rapidly than in the centers of population in the eastern part. alexandria, established as a town in , showed signs of becoming a major seaport, and its merchants complained that travel to the courthouse at springfield was burdensome, and that service of process and execution of writs was well-nigh impossible.[ ] they actively campaigned for moving the courthouse to alexandria, and overcame the opposition of the "up-country" residents by offering to provide a suitable lot and build a new courthouse in alexandria. alexandria prevailed in , and the records of the colonial governor in council showed the following entries: march , . a petition subscribed by many of the principal inhabitants of fairfax county for removing the court house and prison of that county to the town of alexandria, which they propose to build by subscription, was this day read, ordered that the justices of the said county be acquainted therewith and required to signify their objection against such removal, if they have any, by the th of next month, on which day the board will resume the consideration thereof. and: april , . upon the petition of many of the inhabitants of fairfax county for removing the court house and prison of the said county by subscription to the town of alexandria, the board being satisfy'd that it is generally desired by the people, and on notice given, no objection being made to it, ordered that the court house and prison be removed accordingly to the town of alexandria.[ ] by may , the county court's minute book carried the final record of business transacted at the spring fields courthouse. in alexandria, the townspeople set aside two lots in the block of the original town survey bounded by fairfax street, cameron street and king street.[ ] by ordinance, all buildings in the town had to face the street and have chimneys of brick or stone, rather than wood, to prevent fires.[ ] the building erected as the new courthouse faced fairfax street, between cameron and king streets. a prison was built behind the courthouse building in the dedicated lots. the gallows, however, are said to have remained at spring fields for some time.[ ] neither the architect nor the builder of the courthouse at alexandria are known, although there is evidence that john carlyle helped with the building of both the courthouse and market square.[ ] in the last half of the eighteenth century, alexandria prospered as the principal seaport of the northern neck. its wharves and warehouses were busy, and its politics were enlivened by the presence of some of the colonies' most distinguished residents and visitors. as tobacco gave way to diversified farming, wheat and flour comprised two of alexandria's major commodities of trade, and enforcement of the flour inspection and marking laws became an important governmental function. criminal justice was dispensed publicly in the courthouse and jail yard, furnishing moral lessons for both the culprits and observing crowds. it was in this jail, too, that tradition has it jeremiah moore, a dynamic baptist minister of colonial virginia, delivered a sermon to crowds outside his cell window while he was confined for preaching without a license.[ ] the court records for the years to show the names of many virginians who were leaders in the war of independence and the subsequent establishment of the new state government. independence did not significantly affect the judicial system, however, and, except for their new allegiance, state and local officials conducted public business much as they had in the 's. during the years of war, however, the courthouse suffered substantially because of lack of maintenance. after the war, repairs frequently were postponed due to arguments over whether the state or locality should raise the money for them. thus, the court records of the post-war period show frequent references to the need for repairs on the courthouse and jail,[ ] most, apparently, without success. there were more serious questions being raised about the future of the courthouse in alexandria's market square. alexandria no longer was central to the county's most important interests. its port was losing trade to rivals, principally baltimore, and the voice of the growing numbers of settlers in the western part of the county complained that alexandria merchants gained at the expense of others by having the court meet in their town. george mason of gunston hall felt that alexandria politicians were building up too strong a hold on the machinery of county government, and sought the aid of members of the general assembly to arrange for changing the location of the courthouse.[ ] finally, in , the virginia general assembly directed that fairfax county's court house be relocated to a site closer to the center of the county.[ ] the search for a suitable site had gone on for almost ten years previously and might not have been concluded even then if its urgency had not been sharpened by the passage of congressional legislation leading to creation of the district of columbia, and the threat that alexandria would fall within the boundaries of the new federal capital. since by law the county court could not meet outside the boundaries of the county, no further delay could be permitted. land was acquired, a new courthouse was built, and the county court moved into its new quarters early in .[ ] notes for chapter i [ ] albert o. porter, _county government in virginia_, (new york: columbia university press, ), p. . [ ] _a hornbook of virginia history_, (richmond: virginia state library, ), p. . [ ] virginia, laws, , c. , revising earlier statutes on courts enacted in and . [ ] wilmer hall (ed.), _executive journals of the council of colonial virginia_, (richmond: virginia state library, ), v. . [ ] _industrial and historical sketch of fairfax county_, (fairfax: county board of county supervisors, ), p. . [ ] northern neck grants book, liber e, p. . william fairfax was a cousin of the proprietor, and acted as his agent. [ ] the so-called truro parish partition map, purporting to lay out boundaries for a division of truro parish to create a new parish for the western settlements. see _virginia magazine of history and biography_, xxxvi, . [ ] fairfax county deed book, liber a, no. , p. . [ ] fairfax county deed book, liber a, pt. , p. , survey, march , . [ ] e. sprouse (ed), fairfax county abstracts: court order books, - , citing order book, - , december , , p. . [ ] _ibid._, p. . charles broadwater was one of the justices. [ ] there was some reason to support this, apparently, for in the general assembly reduced the number of court meetings to four per year for these reasons. see virginia, laws, , c. ; laws, , c. ; laws, , c. . [ ] _virginia gazette_, reprinted in _william & mary quarterly_, xii, . [ ] cited in mary g. powell, _the history of old alexandria, virginia from july , to may , _, (richmond: william byrd press, ), p. . [ ] _ibid._, p. . [ ] jeanne rust, _history of the town of fairfax_, (washington: moore & moore, ), p. . [ ] gay m. moore, _seaport on the potomac_, (richmond: garrett & massie, ), p. . [ ] william c. moore, "jeremiah moore: - ," _william & mary quarterly_, d ser., xiii, , . tradition also holds that jeremiah moore was defended by patrick henry, but this has not been verified. [ ] robert anderson, "the administration of justice in the counties of fairfax, and alexandria and the city of alexandria", _arlington historical magazine_, ii, no. (october ), - . [ ] "letters of george mason to zachariah johnston", _tyler's quarterly review_, v (january ), . [ ] virginia, laws, - , c. ; shepherd, _statutes at large_, ii, . [ ] during the 's the court was compelled to leave the original courthouse building for temporary quarters. harrison, _landmarks_, p. , states that during this period the county court met in the alexandria town house, located next door, which also housed the hustings court. he also states that the clerk of the county court set up his offices in a nearby school building. the _alexandria gazette_, november , , reported the demolition of an old house on the south side of duke street, east of st. asaph's street, which it stated had served as the office of the clerk of alexandria's hustings court and the fairfax county court commencing in the spring of . chapter ii the providence courthouse and its related buildings: - _location and construction_ the resolution of the general assembly ordering relocation of the courthouse was not specific as to the site on which it would be built. accordingly, in may , the court appointed a commission to inspect a site near ravensworth, within a mile of the crossroads at price's ordinary, and to negotiate for purchase of a two-acre parcel.[ ] the commissioners' report was not favorable to the site, however, and negotiations for other land continued until, in may , a group of commissioners was appointed to inspect a site at earp's corner (between a road which later became the little river turnpike and the ox road), owned by richard ratcliffe.[ ] the commissioners reported favorably, and ratcliffe was persuaded to sell four acres to the county for one dollar. a sale was made, and the deed recorded on june , .[ ] work had begun on the new courthouse some six months earlier, as indicated by the following notice appearing in the _columbia mirror and alexandria advertiser_: the fairfax court house commissioners have fixed on thursday the th instant for letting out the erection of the necessary public buildings to the lowest bidder. as they have adopted the plan of mr. wren, those workmen who mean to attend may have sight of the plan. charles little david stuart william payne james wren charles minor[ ] the successful bidders at this event were john bogue, a carpenter and builder newly arrived in the united states, and his partner, mungo dykes. they completed the construction of the courthouse late in , and on january , , the commissioners reported to the county court that they had received the "necessary buildings for the holding of the court", and found them "executed agreeably to the contract".[ ] within the four-acre courthouse tract, a half-acre was laid off to provide space to build an office for the clerk of the court.[ ] this original tract did not provide enough ground for the jail yard and other grounds comprising the courthouse compound.[ ] accordingly, in march the court ordered william payne to prepare a new survey of the compound, enlarged to accommodate all of the facilities required by the law. the area of this new survey was ten acres, capable of accommodating courthouse, jail, clerk's office, gallows and pillory, a stable, a storehouse and possibly an ordinary.[ ] the equipping of the courthouse and transfer of the court's records were accomplished by march , so that the _columbia mirror and alexandria advertiser_ was able to carry a notice its march th edition that the county court of fairfax is adjourned from the town of alexandria to the new court house, in the center of the county, where suitors and others who have business are hereby notified to attend on the d monday in april next. thus, the first recorded meeting of the court in the new courthouse was on april , .[ ] meanwhile, in alexandria, the mayor and council adopted a resolution giving to peter wagener the title to the bricks of the old courthouse on alexandria's market square as indemnity for pulling it down.[ ] _fairfax courthouse and the town of providence_ the central location of the new courthouse and the improvement of its accessibility through the construction of several turnpike roads commencing in the early 's, led naturally to the growth of a community around the courthouse. in the vicinity of the crossroads a few buildings antedated the courthouse. earp's store, probably built in the late 's, was one such building, as were dwelling houses reputedly built by the moss family and thomas love.[ ] development of more nearby land was not long delayed. in the general assembly authorized establishment of a new town at earp's store, to be named providence.[ ] the future growth of the town was forecast in a plat laying off a rectangular parcel of land adjacent to the little river turnpike into nineteen lots for building.[ ] settlement during the next few decades was relatively slow. rizen willcoxen built a brick tavern across the turnpike from the courthouse.[ ] a variety of "mechanics" and merchants opened their workshops and stores to serve the local residents and travellers on the turnpike, and, on the north side of the turnpike, a store was established by a man named gerard boiling.[ ] also, a school for girls occupied land across the turnpike from the present truro episcopal church, and, east of the courthouse crossroads, a frenchman named d'astre built a distillery and winery and developed a vineyard.[ ] martin's _gazetteer of virginia and the district of columbia_ described fairfax court house post office as follows: "in addition to the ordinary county buildings, some dwelling houses (for the most part frame buildings), mercantile stores, taverns, and one school."[ ] the "mechanics" located in the town included boot and shoe makers, saddlers, blacksmiths and tailors. the town's population totalled , of which four attorneys and two physicians comprised the professions. somewhat later, the town's industry was augmented by establishment of the cooper carriage works on the turnpike west of the courthouse.[ ] this growth of services around the seat of the county government was an added inducement for the county's residents to gather in town when court was in session, to trade, transact their business at the courthouse, and exchange the news of the day. by the 's the schedule of court days had expanded to include sessions of the county court ( d monday each month), the quarter sessions (in march, june, august and november), and the circuit superior court ( th of may and october).[ ] at these times the court would sit for several days--as long as necessary--to complete the county's business. a quorum of the total panel of appointed justices was necessary to conduct the court, but this number generally was small enough so that no hardship was suffered by those who had to leave their private concerns. in every third month, the meetings of the court would also be the occasion for convening the successor to the colonial courts of the quarter sessions, at which criminal charges not involving capital punishment were tried. throughout the first half of the nineteenth century, the sessions of the county court continued to be the chief feature of life in the town of providence, or fairfax court house, as it frequently was called. when the court was not in session, the regular passage of carriages, wagons, and herds along the little river turnpike was the main form of contact which residents had with areas outside the locality. this situation continued even after the coming of the railroads, for when the orange & alexandria railroad was chartered in , its route was laid out several miles south of providence. thus, the nearest rail stations for the courthouse community were at fairfax station, on the orange & alexandria railroad, and at manassas, where the manassas gap railroad left the orange & alexandria and ran to harrisonburg.[ ] [illustration: four acres of richard ratcliffe's land near caleb earp's store laid off for the courthouse and other public buildings. record of surveys, section , p. , .] [illustration: ten acres of land surrounding the courthouse laid off for the prison bounds. record of surveys, section , p. , .] [illustration: ten acres of land surrounding the courthouse intended for the prison bounds. fairfax county deed book v- , p. , .] [illustration: one-half acre, part of the four-acre courthouse lot, laid off for the clerk of the county and his successors. record of surveys, section , p. , .] notes for chapter ii [ ] fairfax county court order book, - , p. . [ ] _ibid._, pp. - . [ ] fairfax county deed book b- , pp. - . [ ] _columbia mirror & alexandria advertiser_, june , . john bogue had arrived in the united states with his family in . on june , , the _alexandria gazette_ published his signed statement thanking the captain of the ship "two sisters" for a good voyage. in the august , issue of the _gazette_, he advertised as a joiner and cabinet maker on princess street near hepburn's wharf, "hoping to succeed as his abilities shall preserve him deserving." [ ] fairfax county deed book, b- , p. . [ ] fairfax county record of surveys, - , p. . [ ] fairfax county deed book, b- , p. . [ ] interview with former clerk of courts, thomas chapman of fairfax, virginia, february , . [ ] one of the items to come before the court at this session involved winding up the county's contract with john bogue and mungo dykes. the court's clerk, robert moss, was summoned to appear and show cause why he had not paid the contractors in conformance with the commissioners' report accepting the buildings. moss produced a receipt for this payment, signed by mr. bogue's agent, who apparently had not passed it along to his principal. fairfax county court order book, - , p. . [ ] powell, _old alexandria_, p. . [ ] elizabeth burke, "our heritage: a history of fairfax county", _yearbook of the historical society of fairfax county_, - , : . [ ] _ibid._, . [ ] fairfax county deed book, m- , p. . [ ] rust, _town of fairfax_, p. . [ ] gerard bolling was the father-in-law of richard ratcliffe who had provided the four-acre tract on which the courthouse had been built. rust, _fairfax_, p. . [ ] _ibid._ [ ] joseph martin, _gazetteer of virginia and the district of columbia_, (charlottesville, ), p. . the name "providence" apparently was less favored than the traditional virginia style of referring to the seat of county government. [ ] rust, _fairfax_, p. . [ ] martin, _gazetteer_, pp. - . [ ] marshall andrews, "a history of railroads in fairfax county", _yearbook of the historical society of fairfax county_, iii ( ), - . chapter iii the county court and its officers _the functions and officers of the colonial court_ in colonial virginia local government was centered in the county court. its origins as a political and social institution have been attributed to various prototypes in tudor and earlier english history. by the time fairfax county was established in , this institution and its functions in colonial virginia had been clearly formulated and accepted.[ ] the county court evolved from the colony's original court established at jamestown and consisting of the governor and council sitting as a judicial tribunal. in , the governor ordered courts to be held monthly at convenient places throughout the colony to save litigants the expense of traveling to jamestown. steadily the numbers of these courts increased and their jurisdiction expanded until, by the end of the seventeenth century, these local courts could hear all cases except those for which capital punishment was provided. in effect, their jurisdiction combined the contemporary english government's king's bench, common pleas, chancery, exchequer, admiralty, and ecclesiastical courts. during this period the local courts acquired numerous non-judicial responsibilities connected with the transaction of public and private affairs. because of both tradition and convenience, the county court was the logical agency to set tax rates, oversee the survey of roads and construction of bridges, approve inventories and appraisals of estates, record the conveyance of land, and the like. therefore, the court's work reflected a mixture of judicial and administrative functions, and the officers of the court became the chief magistrates of the crown and of their communities. once this pattern of authority and organization was developed, it continued with very few basic changes throughout the eighteenth and most of the nineteenth centuries. highest in the hierarchy of the officers of the county and the court were the justices. originally designated as "commissioners", and, by the 's referred to as "magistrates", their full title was "justice of the peace" after their english counterparts of this period.[ ] popular usage in virginia, however, fostered the custom of speaking of the members of the court as "gentleman justices". they were both the products and caretakers of a system that placed control of public affairs in the hands of an aristocratic class, and at any time in the county's history up to mid-nineteenth century a list of the county's justices was certain to include the best leadership the county had. appointments were for life, and lacked any provision for compensation. service on the court was, therefore, considered an honorable obligation of those whose position and means permitted them to perform it. that this was considered a serious and active responsibility was indicated by the fact that justices could be fined for non-attendance at court.[ ] through the colonial period and well after the war of independence the justices of the county court were appointed by the governor, and, although episodes during this period indicated the recurrence of friction between the governor and general assembly over the power to make these appointments, neither the local court nor the assembly was able to assert permanently its claim to participate in the appointment process.[ ] the number of justices of the county court varied considerably in different counties and times. by law the number was set at eight members; yet in fairfax county had justices, and appeared to be typical of other counties in the region.[ ] appointments to the county court in some instances seemed almost hereditary, for when a justice of one of the prominent local families died or retired to attend to other interests it frequently occurred that his place was taken by a younger relative. historian charles sydnor has noted that during the twenty years prior to the war of independence three-fourths of the justices of the peace appointed in virginia came from three hundred to four hundred families.[ ] directly or indirectly, the justices of the county court influenced the selection of all other county officers. the clerk of the court was elected outright, but others--including the sheriff, coroner, inspectors and commissioners for special duties, and militia officers below the rank of brigadier--were commissioned by the governor from lists submitted by the justices. the office of clerk of the county court presumably dates from the origin of the court itself, for references to clerk's fees are found in the law as early as ,[ ] and authority for appointment by the governor is noted in .[ ] from the tables of fees authorized by law, one may see that the clerk performed a wide range of functions growing out of the work of the court. these included issuing orders for all stages of court proceedings, taking depositions and inventories, recording documents, and administering or probating estates of all kinds. in addition, the county's records of births, deaths and marriages were maintained from reports made to the clerk. in time, some of the tasks of issuing certificates--such as marriage licenses--which started as duties of the court were turned over to the clerk to perform.[ ] frequently the clerk could and did exercise great influence with the justices in the handling of legal matters. as the members of the court were laymen, it often occurred that the clerk was the only person who was learned in the law, and his advice must have been a determining factor in many situations. his tenure in office also strengthened his position of influence, for it was customary to retain clerks in office for long periods of time, during which they had daily contact with the workings of the law and events in the county. unlike the justices, who came from all parts of the county and seldom were present except on court days, the clerk was much more available at the courthouse, and so generally was the first to hear news from the colonial capital or the outside world. as a result, the clerks of the court were consulted on a variety of matters whenever a justice was not available. fees charged for performing the various services connected with the work of the court made up the income of the clerk, and occasionally the same person might hold the positions of clerk and surveyor, notary, or special commissioner. under certain circumstances, clerks also could practice law, and all of these sources combined to produce an income which was for the times comfortable. in the eighteenth century, two significant changes in the law prescribing the clerk's office occurred--it was made a salaried position, and the county court was given full authority to appoint the clerk--but in other respects the office was changed very little either by the passage of time or the transformation from colony to commonwealth. ranking roughly equal to the clerk in importance to the operations of county government was the sheriff. the office of sheriff appeared when counties began to be established in the 's; and until after the war of independence, sheriffs were appointed by the governor on recommendation of the county court. almost from the beginning, too, it appears to have been customary to appoint deputies or "under-sheriffs". so it is not surprising to find that after it was customary for the office of the sheriff to rotate annually among the members of the court who, in turn, appointed their deputies directly. but in the eighteenth century this system proved too disruptive, and deputies were retained throughout several terms of sheriff's appointments.[ ] from the beginning the sheriff and his deputies were compensated by fees which they collected for a wide variety of duties. these ranged from tasks connected with execution of the court's orders in criminal cases, to enforcement of the law and administration of the jail. in addition, the sheriff was due a fee from a master whose runaway servant or employee he apprehended and returned, or for collecting private debts or administering corporal punishment to servants for their owners.[ ] sheriffs also collected the levies which financed county government. however, being subject to the pressures of their own circumstances, there often was a tendency to give first priority to activities which brought in their own fees. this led the general assembly to require that sheriffs collect public levies before they take any fees for themselves, and to prescribe a number of other rules for improvement of the conduct of their offices.[ ] the role of the sheriff in the tax collection process always was a difficult one. the procedure for financing the county, initially, was for the justices simply to compile lists of their expenses and the freeholders of the county, compute how much was needed from each freeholder to cover the cost of government, and direct the sheriff to collect it. when the sheriff made his return to the court he was entitled to deduct a percentage as his commission.[ ] however, revenue was often not collected, either because the job was farmed out to others who defaulted, or the county was too poor, or its residents were scattered and could not be found.[ ] these problems ultimately led the general assembly to establish other officers whose exclusive duties were the levying and collecting of revenue, but throughout the seventeenth and eighteenth centuries the sheriff performed a central role in the revenue process. the sheriff was also the custodian of the county jail and its prisoners. he had the authority to decide on and collect bail, and he was liable for a fine if a prisoner escaped. he appears generally to have taken his responsibility for the county jail lightly, for there is evidence of widespread contracting for others to provide the guard for the jail and the food for the prisoners. other officials who were part of the colonial county government performed specialized functions, but unlike the clerk and sheriff, took no part in the general administration of county business. the office of county surveyor was created early in the seventeenth century to meet the obvious need for accurate measurement and recording of land. initially, the surveyor was appointed by the county court, and sometimes treated as an additional duty of the clerk or sheriff. however, by the end of the eighteenth century a significant change had occurred in the legislation which called for appointment by the governor after a candidate had been examined and approved by the faculty of the college of william & mary. by , therefore, the surveyor became the first county official to be required to show professional competence as a condition of appointment.[ ] the office of constable appeared in , and may be described as similar to that of sheriff, except that it served the court of a single justice.[ ] constables were appointed by the justices of the county court and served in precincts delineated by the justices. the function of coroner in colonial virginia was similar in all essential respects to that in england at that time, that is, to represent the crown by investigating the circumstances of unexplained deaths. originally, this function was performed by the justices, acting without fee. however, by the 's, coroners were being appointed by the governor, and authorized to collect fees for their services from the estate of the deceased or, lacking that, from the county. in the absence of the sheriff, the coroner could be designated by the court to perform the duties of the sheriff's office.[ ] roughly a century after the appearance of the coroner, the next significant addition to the machinery of county government came with the creation of the commissioners of the tax. forced by the increased military expenses of the 's and 's[ ] to find new sources of revenue, virginia created an official to take over the specialized function of assessment of property for tax purposes. he was elected by the freeholders of the county. in office, his task became one of laying off the county into districts, assessing property, and notifying the owner of the tax due. the commissioners of the tax were created in , and lasted until when a new official, the commissioner of the revenue was established.[ ] the new commissioner took responsibility for making assessments of taxable property under a simplified procedure, and the office has remained as a unique feature of virginia's local government to the present time. _court days_ as the institution of the county court grew during the seventeenth and eighteenth centuries and became the hub of county government, the monthly sessions of the court furnished an opportunity for general gatherings of the county's residents and visitors to transact both public and personal business. a scene that must have been typical of almost any virginia county in the early nineteenth century has been described by historian john wayland as follows: court day once a month was looked upon as a great event; everyone that could leave home was at hand. it was a day of great interest; farmers coming in with their produce, such as butter and eggs, and other articles which they exchanged for groceries and dry goods. the streets around the courthouse were thronged with all sorts of men; others, on horseback, riding up and down trying to sell their horses. men in home made clothes, old rusty hats that had seen several generations, coarse shoes and no stockings, some without coat or vest, with only shirt and pants.... this was a day to settle old grudges. when a man got too much whiskey he was very quarrelsome and wanted to fight.... it was, also, a great day for the gingerbread and molasses beer. the cake sellers had [tables] in front of the courthouse, spread with white cloths, with cakes piled high upon them and with kegs of beer nearby. i have seen the jurymen let down hats from the windows above, get them filled with gingerbread and a jug of beer sent up by rope. about four or five o'clock the crowd began to start for home.[ ] for anyone who had business with the court, whether he or she came as a petitioner or a penitent, the justices, clerk, sheriff, and other officials represented the presence of power and authority as colonial virginia knew it. but it was a presence in which men stood on little ceremony or formality with each other. except in unusual circumstances all were likely to be laymen, for in colonial virginia there was little formal education in the professions and, at most, one might have attended lectures at the college of william & mary or a school in england. if the gentlemen justices were widely read in history, philosophy, government and literature--as well they might be--these advantages of their means and leisure did not destroy their appreciation for the issues they were asked to decide. for in their own right they were planters who had to face and deal with these issues in their own lives. accordingly, their decisions, as reflected in the minutes of their sessions, were based on this realism which comes from personal experience. yet it remained true that the gentlemen justices of the county court were, for most practical purposes, beyond any control of the community they governed. any complaint about the manner in which the justices conducted their business could only be directed to the governor.[ ] should the court cease to function for long periods of time because of quarreling among the justices, or should the occurrence of an emergency require replacement of justices, the freeholders of the county had no method of dealing with their problem except through the pressure of public opinion.[ ] even with the best of good will among the members of the court, they could not escape the usual difficulties of handling legal matters before a bench of lay judges, who not only lacked professional training, but were handicapped by the scarcity and cost of law books.[ ] decisions which seemed wrong could, from earliest colonial times, be appealed to the governor and general court. later the establishment of district courts, and their successors the circuit courts, provided an intermediate tribunal for determining matters which turned on points of law. but the business of the gentlemen justices on court days was a mix of legal and administrative matters, and in the latter area of activity there was no appeal. _election days_ among the non-judicial activities carried on at the courthouse, none was as colorful and few were more important than elections of members of the house of burgesses. elections were ordered by writs issued by the governor, and in each county they were conducted by the sheriff. unless reasons of the greatest gravity prevented it, the polling place was the county courthouse.[ ] voting, or "taking the poll" as it was called, was conducted in the court chambers, or, in warm weather, in the courthouse yard, with the sheriff presiding at a long table. on either side of the sheriff were justices of the court, and at the ends of the table were the candidates and their tally clerks. the sheriff opened the election by reading the governor's writ and proclaiming the polls open. if there was no contest or a clearly one-sided election, the sheriff might take the vote "on view"--that is, by a show of hands of those assembled at the courthouse. generally, however, a poll of the individual voters was taken. as the polling went on, each freeholder came before the sheriff when his name was called and was asked by the sheriff how he voted. as he answered, the tally clerk for the candidate receiving the vote enrolled it and the candidate, in his turn, generally acknowledged the vote with a bow and expression of appreciation. at the close of the polling a comparison of the tally sheets showed the winner. this method of voting enhanced the excitement of a close election, and, since elections frequently were held on court days when many people came to the courthouse on other business, activity outside the courthouse sometimes was spirited. wagers were offered and taken, arguments broke out and fights sometimes followed.[ ] those attending the elections usually were in good spirits, for they were aided by the custom of the candidates to provide cider, rum punch, ginger cakes, and, generally, a barbecued bullock or pigs for picnic-style refreshment of the voters waiting at the courthouse.[ ] the candidates and their friends also kept open house for voters traveling to the courthouse on election day, offering bed and breakfast to as many as came. on election night, the winning candidates customarily provided supper and a ball for their friends and other celebrants.[ ] the law was explicit that no one should directly or indirectly give "money, meat, drink, present, gift, reward or entertainment ... in order to be elected, or for being elected to serve in the general assembly",[ ] but the practice of treating the voters on election day was deeply rooted in virginia's political tradition. thus the law was interpreted as only prohibiting one offering refreshment "in order to get elected"--something extremely difficult to prove--but not preventing one from treating his friends. so, while occasionally voices were heard to condemn candidates for "swilling the planters with bumbo",[ ] or bemoan the "corrupting influence of spiritous liquors, and other treats ... inconsistent with the purity of moral and republican principles", the complainants almost always turned out to be candidates who themselves had recently been rejected at the polls.[ ] _the transition from colony to commonwealth_ the war of independence caused little change in virginia's system of county government. the county court system was carried over into the state constitution of with only the oath of office changed to call for support and defense of the constitution and government of the commonwealth of virginia.[ ] the general assembly became the successor to most of the functions of the colonial house of burgesses and governor in council, but significantly the principle of the separation of powers established for the commonwealth was not extended to the counties. thus, the mix of powers, privileges and duties which comprised the authority of the gentlemen justices in colonial times was continued, as was the custom of appointment for life. how little the transition from colony to commonwealth changed the justices' own view of their position was illustrated in when the new governor issued new commissions reappointing the justices of fairfax county's court. the justices refused to accept the new commissions, and pointed out to the governor in a long letter that this duplication of oaths would set a bad precedent and risk giving the executive undue powers over the court. far from being an artificial objection, the letter noted, this latter point was extremely touchy for the justices' standing in a great many matters was based on seniority, and both the prestige and chances for financial rewards that went with the office depended on this standing.[ ] the most noteworthy changes in the organization of local functions came as a result of the disestablishment of the church of england. that portion of all local officials' oaths which called for supporting and defending the church was dropped, but, more important, abolition of the parish vestry made it necessary to lodge its non-religious functions elsewhere. in , therefore, the general assembly created county boards of overseers of the poor.[ ] most other welfare activities were added to the responsibilities of the county court.[ ] while the basic philosophy of virginians regarding their local government did not change as a result of independence, certain new governmental institutions were created because colonial ways were not efficient enough to meet the demands placed on them by social and economic growth. although the general jurisdiction of the county court was continued, in a new court, called the district court, was established to relieve the pressure of judicial business.[ ] these district courts were the direct antecedents of the present circuit courts of the counties which were created by the general assembly in .[ ] if the district court did not displace the county court immediately, it forecast its eventual decline as a judicial tribunal. the new court introduced the beginnings of professionalism on the bench, and offered the prospect of full-time attention to the administration of justice by trained judges. establishment of the office of the commonwealth attorney in added to this trend toward professionalism.[ ] most of the administrative duties of the county court in colonial times remained after independence. consequently, the records of the county court continued to show actions connected with the licensing of inns, ordinaries, mills, ferries, peddlers, and other similar activities, along with attention to the survey and maintenance of roads, bridges, and fords.[ ] regulatory powers over the practices of tradesmen and artisans was broad, and used by the county court to set rates which could be charged and to prescribe trade practices which affected the quality of the products involved. in this area of activity, the county court was performing what virginians generally regarded as matters of purely local concern. except in connection with the production of tobacco and milling and shipping of grain, economic activities seldom affected anyone beyond the county neighborhood.[ ] therefore, the county court was deemed to be the best body to understand and accommodate the interests involved. this attitude began to change only as the improvement of transportation facilities increased travel and commerce in the period from to . notes for chapter iii [ ] see generally, martha hiden, _how justice grew: virginia counties: an abstract of their formation_, (williamsburg: virginia th anniversary celebration, ). also, because time-honored tradition as well as law influenced the organization of virginia counties, the description of english local government in j. b. black, _the reign of elizabeth, - _, (oxford: oxford university, ), pp. - , applies to virginia's county government in the colonial and early federal periods. [ ] the first statute on this subject, in , used the term "commissioners" (i hening, _statutes_, ). in , this term was replaced by "justices". p. a. bruce, _institutional history of virginia in the seventeenth century_, (new york: putnam, ), i, . however, porter, _county government_, p. , states that "justice of the peace" was the full title during most of the seventeenth and eighteenth centuries. [ ] porter, _county government_, p. . [ ] in , for example, the house of burgesses enacted legislation requiring that appointments be recommended by the county court and approved by the assembly. (i hening, _statutes_, , ) but this requirement appears to have been repealed after the restoration of charles ii. [ ] porter, _county government_, p. , cites the _calendar of state papers_, i, , listing the numbers of justices in nearby counties as follows: fauquier, ; prince william, ; loudoun, . [ ] charles sydnor, _american revolutionaries in the making_, (new york: collier, ), p. . [ ] hening, _statutes_, i, . [ ] hening, _statutes_, i, . [ ] hening, _statutes_, ii, , . [ ] porter, _county government_, p. . [ ] _ibid._, pp. - . [ ] hening, _statutes_, i, , . [ ] these rules included prohibitions against extortion of excessive fees, acting as lawyers in their own courts, falsifying revenue returns, multiple job-holding and the like. see hening, _statutes_, i, , , , , , ; ii, , . porter, _county government_, , comments that "the office of sheriff, judging from the number of acts which the assembly found it necessary to pass, was the problem child of ... [the th century], not only in regard to the duties of the office, but also in the method of appointment." [ ] shepherd, _laws of virginia_, i, . [ ] _calendar of state papers_, iv, . [ ] hening, _statutes_, xi, . [ ] hening, _statutes_, iv, . [ ] hening, _statutes_, ii, ; iv, . [ ] hening, _statutes_, ix, . [ ] hening, _statutes_, xii, . [ ] john wayland, _history of rockingham county, virginia_, (dayton, virginia: ruebush-elkins, ), pp. - . [ ] porter, _county government_, p. , citing _calendar of state papers_, iv, . [ ] sydnor, _american revolutionaries_, pp. - . [ ] as a result law books were the property of the court rather than the individual justices, and on the death or resignation of a justice his law books were surrendered to the court and divided among the remaining members of the court. hening, _statutes_, iv, . [ ] in unusual circumstances, such as an outbreak of smallpox, the sheriff might chose an alternate site. h. r. mcilwaine (ed), _journals of the house of burgesses, - _, (richmond, ), p. . [ ] douglas s. freeman, _george washington: a biography: young washington_, (new york: scribner, ), ii, , notes that washington became involved in an election-day brawl at the election of members of the house of burgesses in december . the contest between john west, george william fairfax, and william ellzey was very close, and washington (supporting fairfax) met william payne (who opposed fairfax). angry words led to blows, and payne knocked washington down with a stick. there was talk of a duel, but the next day washington apologized for what he had said, and friendly relations were restored. [ ] sydnor, _american revolutionaries_, p. . [ ] nicholas cresswell, _the journals of nicholas cresswell, - _, (pt. washington, n. y.: kennikat press, ), pp. - . [ ] hening, _statutes_, iii, . [ ] "bumbo" was an eighteenth century slang term for rum. sydnor, _american revolutionaries_, p. . [ ] william c. rives, _history of the life and times of james madison_, (boston: little, brown, ), i, - . [ ] porter, _county government_, p. . [ ] calendar of state papers, iv, . [ ] hening, _statutes_, x, ; xi, ; xii, , ; shepherd, _laws_, i, . [ ] hening, _statutes_, x, (orphans); xii, (mental health). [ ] the district court's jurisdiction included civil cases of a value of £ or , lbs of tobacco, all criminal cases, and appeals from the county court in criminal cases. hening, _statutes_, xii, et seq. [ ] virginia, _code of _, i, . [ ] hening, _statutes_, xiii, . [ ] hening, _statutes_, xii, . [ ] in the late eighteenth century, virginia millers and warehousemen were major sources of grain and flour for new england, the west indies and mediterranean. the house of burgesses, and later the general assembly, enacted comprehensive laws regulating the quality, grading and marking of these products. see, lloyd payne, _the miller in eighteenth century virginia_, (williamsburg: colonial williamsburg, ) and charles kuhlman, _the development of the flour-milling industry in the united states_, (boston: houghton mifflin, ), pp. - , - . [illustration: fairfax county courthouse, june . photo by t. h. o'sullivan. copy from the library of congress.] chapter iv the war years: - as events in the winter of and the spring of carried the nation into the crisis of civil war, fairfax county aligned itself with richmond rather than washington. thus, at the state's convention on secession in may , the fairfax county delegation voted to ratify the secession ordinance.[ ] the consequences of this action were prompt in coming and far-reaching in their effects, for with the commencement of military operations in northern virginia it became impossible to carry on the normal processes of county government. fairfax court house (the town of providence) was outside the ring of fortifications which were built on the virginia side of the potomac to protect the national capital. inside this line, stretching in a great arc from alexandria, through the vicinity of the falls church, to chain bridge, union army commanders exercised military authority and administered justice through provost courts.[ ] outside this area the authority of the general assembly of virginia nominally remained in effect, and the justices of the courts and the sheriffs of the county continued to hold their positions under the laws of the seceded state. serious difficulties in the transaction of public business soon appeared throughout fairfax county, where patrolling and skirmishing outside the ring of permanent fortified positions were daily occurrences. this was recognized in an ordinance adopted by the secession convention providing that when the court of any county failed to meet for the transaction of business or the public was prevented from attending the court "by reason of the public enemy", the court of the adjoining county where such obstructions did not exist had jurisdiction of all matters referrable to the court or the clerk of the court where normal business had ceased.[ ] as virginia armed, troops of the confederacy placed themselves in positions to repel invaders, and in may , a company of the warrenton rifles established a camp at fairfax court house. on the morning of june , , a body of union cavalry rode through the town, and in the confused exchange of fire which followed, a captain of the rifles, john quincy marr, became the first officer casualty of the war.[ ] a month later, the tide of union forces under mcdowell swept past the courthouse on the way to its rendezvous at bull run, and back again to the safety of the fortified positions along the potomac. in the wake of their victory at bull run, troops of the confederacy established an outpost at fairfax court house to watch for signs that the union army might resume the offensive by moving against the confederate earthworks near centreville. this outpost did not see any fighting for the time being, but it provided the site for what later was regarded as one of the decisive moments of the war. in september , general beauregard had established his headquarters at fairfax court house, and urgently pressed the newly-formed government of confederate president jefferson davis for reinforcements with which to sweep into pennsylvania and maryland and, hopefully, to carry the federal capital itself. a meeting was arranged at beauregard's headquarters in which davis, generals beauregard and j. j. johnston, and certain of their trusted staff officers considered this plan. their decision was to adopt a defensive posture and protect the borders of virginia rather than take the offensive and invade the north. as events turned out, this decision had consequences of the greatest effect, for it was not until lee marched out of the valley on the road to gettysburg in that there was another opportunity for the confederacy to carry the war to the soil of the northern states.[ ] in the spring of , the confederate army retired from fairfax court house, and soon after that its line of fortifications at centreville--the most extensive system of field fortifications in military history up to that time--was abandoned. as the union armies took the initiative in their repeated efforts to reach richmond, the crossroads at fairfax court house had key importance in the communication and supply systems of these forces. from to the end of the war, union troops remained in control of the crossroads and the courthouse. contemporary photographs of the building show it being used as a lookout point and station for patrols. other descriptions indicate that the courthouse was loopholed,[ ] the furnishings were removed, and the interior generally was gutted so that only the walls and roof remained.[ ] for all practical purposes, the courthouse and its related buildings were, in the years and , a military outpost and minor headquarters in the union army's system to protect its supply and communications lines from the irregular troops who kept hostilities constantly smoldering in northern virginia. throughout the western part of fairfax county, and in loudoun, fauquier and prince william counties, lived many who gave the appearance of innocent farmers during the daylight hours, but who changed into confederate uniforms at night and on weekends to ride against isolated outposts or supply points of the union army or destroy vulnerable bridges and communications centers. the operations of these guerilla bands kept thousands of union troops pinned down on rear area security guard duty, and preoccupied the forces assigned to fairfax court house. the difficulty of their task under the circumstances that prevailed in northern virginia was dramatized in the famous confederate raid on fairfax court house by men under the command of col. john s. mosby when, on the night of march , , the confederate commander with about men captured and carried off prisoners, including union brigadier general edwin h. stoughton, and a large number of horses and quantity of supplies. throughout , and the spring of hardly a night went by without some cries of alarm and shots being fired because of the activities of the confederate irregulars. yet they took a substantial toll from the wealth and welfare of the very people they claimed to represent, for the union troops soon learned more efficiency in their rear area operations, and increased the restrictions on movement of civilian traffic. the transaction of personal business in normal ways became virtually impossible. the historian, bruce catton, has assessed the activities of the guerilla bands as follows: the quality of these bands varied greatly. at the top was john s. mosby's courageous soldiers led by a minor genius, highly effective in partisan warfare. most of the groups, however, were about one degree better than plain outlaws, living for loot and excitement, doing no actual fighting if they could help it, and offering a secure refuge to any number of confederate deserters and draft evaders.... the worst damage which this system did to the confederacy, however, was that it put yankee soldiers in a mood to be vengeful.[ ] during the years when normal business at the courthouse was suspended and the county officials who held authority from the general assembly were dispersed, some of the county's records were removed from the courthouse for safekeeping, and some were not.[ ] in either case they were subject to the risks of loss and damage. some were carried off and in later years have been brought to light as the descendents of union and confederate soldiers have found them in places where they had been put for safekeeping. the jail building ceased to be used for its original purpose, and, during the latter months of the war, the jail of alexandria county (now arlington county) was utilized for fairfax county's prisoners.[ ] the effort to provide a legitimate successor to the secession government in richmond started in the wheeling conventions of may and june , from which came the unionist government of francis h. pierpont.[ ] the admission of west virginia to the union in december [ ] left governor pierpont in control of only those parts of northern virginia, the shenandoah valley, and chesapeake bay that were occupied by federal troops. within this area, the pierpont administration collected taxes and attempted to supply the essential services of civilian government. closer touch with these problems was possible after june , when governor pierpont moved his government to alexandria. on january , , a new county court for fairfax county was convened pursuant to a proclamation by governor pierpont which directed that the place for the court's sessions should be changed from fairfax court house to the village of west end[ ] near alexandria. here, in january , the court met in a structure known as bruin's building. the minutes of this and other sessions which followed recite many of the same problems and disputes that always had occupied the time of county courts--dockets of minor criminal and civil cases, petitions to higher levels of government, determination of minor civil disputes, issuances of permits and licenses, and appointment of public officials.[ ] certain items in the minutes of this january , meeting documented the strains created by the wartime conditions: a petition to the secretary of war prayed that the "bruin building" in the village of west end be placed at the court's disposal; the deputy commissioner of revenue was directed to discharge the duties of the commissioner until the latter, currently a prisoner in richmond, could return to his duties; payments were approved for wagonowners who had hauled books, papers and records to the courthouse from various points in fairfax and nearby counties. one item of particular interest stated: the fact having been brought to the notice of the court that degradations were being committed upon the mt. vernon estate, the court, under the chancery powers vested therein, appointed jonathan roberts, the present sheriff, curator, to take charge of all property in fairfax county, va. belonging to the heirs of john a. washington, dec.[ ] after the cessation of fighting in april , governor pierpont moved his government from alexandria to richmond. however, without the presidential support which lincoln had provided during his lifetime, the pierpont administration found it increasingly difficult to carry on effective government as the years immediately after the war saw numerous plans for reconstruction competing for favor. the situation was further complicated by the fact that in february the pierpont administration had sponsored a constitutional convention which had adopted a new constitution for virginia, and that this constitution had nominally gone into effect in alexandria and fairfax counties.[ ] a complex legal problem regarding the succession of governmental authority thus was added to the formidable task of reconstructing fairfax county's economy and physical facilities. this task was made difficult because many of the records of the county had been scattered or destroyed during the fighting. records were searched out and retrieved whenever their places of safekeeping were known, a process requiring years of effort. some record books were never found. the accounts of how the wills of george and martha washington were recovered are frequently cited to illustrate the difficulties of reassembling fairfax county's records. when, in the fall of , beauregard's confederate troops withdrew from fairfax county, the will of george washington was secretly removed from the courthouse by the court clerk, alfred moss, and taken to richmond. here it was placed for safekeeping with the secretary of the commonwealth of virginia. following the cessation of hostilities, it was returned to fairfax county.[ ] martha washington's will was not removed from the courthouse to richmond, but remained there during the time union troops occupied the building as a patrol point. as might be expected, cabinets were broken open and papers scattered. one day, late in , a troop of soldiers from new england was in the building and engaged in shoveling out the debris from the floor. a union lieutenant named thompson grew curious about these papers and interrupted the work long enough to examine some of them. he picked up the will of martha washington and, recognizing it, took it with him. following the war, the will next was heard of in in england where a descendant of lt. thompson sold it to j. p. morgan. the sale was reported to the commonwealth attorney of fairfax county who wrote mr. morgan seeking the return of the will, but no answer was ever received. after mr. morgan's death, the county sought to obtain the will from his son. negotiations were unsuccessful until court action was begun by the county. finally, one day before the matter was to be argued before the united states supreme court, the will was returned.[ ] notes for chapter iv [ ] thomas chapman, jr., "the secession election in fairfax county, may , ", _yearbook of the historical society of fairfax county_, iv ( ) . [ ] robert anderson, "the administration of justice in the counties of fairfax, alexandria (arlington) and the city of alexandria (part ii)", _the arlington historical magazine_, ii (october ) - . [ ] ordinance , passed by the virginia convention, june, , cited by anderson, "administration of justice", p. . [ ] governor william smith, "the skirmish at fairfax court house", _the fairfax county centennial commission_, (vienna, virginia: ) p. . because of the confusion in the confederate ranks, no officer took charge, and so governor smith ordered the confederate troops to return the fire of the federal soldiers. [ ] the fairfax court house meeting, which took place in gen. beauregard's headquarters near the courthouse, has been the subject of controversy in the memoirs of those involved. see, for example, jefferson davis, _the rise and fall of the confederate government_, (new york: yoseloff, ), i, , - , ; alfred roman, _military operations of gen. beauregard_, (new york: harper & bros., ), i, - . [ ] _washington post_, april , . [ ] _alexandria gazette_ and _fairfax news_, october , . [ ] bruce catton, _a stillness at appomatox_, (new york: cardinal giant edition, pocket books, inc., ), pp. - . [ ] two items from the _alexandria gazette_ in july illustrate the problems regarding these records. the edition of july , printed a letter to the newspaper stating that records of fairfax county had lately been found in warrenton, having been removed there, it was supposed, by lawyers. the new sheriff of the county took possession of these records. the edition of july , reported that the new county court of fairfax held its july term in the clerk's office, the courthouse not being in condition for that purpose, and that one of the court's actions was to order that application be made for a new seal, the old one not being found. [ ] fairfax county court minute book, - , p. . this order was entered november , , and was rescinded by a subsequent order entered november , . minute book, - , p. . [ ] the unionists in northern and western virginia met twice in conventions held at wheeling. in may a convention of some so-called delegates from the counties in these regions met to consider their stake in the state's constitutional crisis, but took no action since virginia had not yet ratified the secession ordinance. a second convention at wheeling was held in june , and organized a unionist government for the state which claimed the authority of the general assembly (which it asserted had forfeited its authority by rebellion) and other constitutional officials. francis h. pierpont served as governor of this unionist government of virginia. [ ] the congressional approval of west virginia's admission occurred in december , but it was not until june that president lincoln proclaimed the admission of the new state and approval of its constitution. [ ] fairfax county court minute book, - , p. . [ ] _ibid._ minutes of a meeting of the court on january , . [ ] _ibid._ the practical effect of this order has been questioned, however, since mt. vernon was sold out of the washington family in to the mt. vernon ladies' association of the union, and the washingtons had, by , moved to fauquier county, leaving neither relatives or property in fairfax county. interview with judge james keith, april . [ ] as described in william hemphill, marvin schlegel and sadie engelberg, _cavalier commonwealth: history and government of virginia_, (new york: mcgraw-hill, ), - , this constitution contained various new provisions, such as the abolition of slavery and denial of suffrage to all men who held office under a confederate government. [ ] eugene e. prussing, _the estate of george washington, deceased_, (boston: little, brown, and co., ) pp. - . "martha washington's will and the story of its loss and recovery by fairfax county," _yearbook of the historical society of fairfax county, virginia_, ii ( - ) - . [ ] "martha washington's will," p. . chapter v the years of rebuilding: - with the end of the war the formidable tasks of rebuilding both state and local governments were begun. president abraham lincoln's view of reconstruction had been that the government which took virginia out of the union should be the one to bring her back into the union,[ ] and president andrew johnson generally sought to follow this principle. others, mainly the radical republican leaders, argued that virginia had forfeited her sovereignty by rebellion, and so could not return to the union except on new terms.[ ] in this respect, president johnson found that the presence of governor pierpont in richmond--purporting to govern under the constitution which his government had drafted and ratified in alexandria in --was a complicating factor. not only was the legitimacy of this constitution questioned, but all evidence pointed to the conclusion that the state's leaders who had served the confederacy could not and would not accept it. an unsuccessful attempt to improve the constitution was made in the summer of , and thereafter a series of confusing elections and administrations followed as the radical republican leaders in congress overrode president johnson's reconstruction program.[ ] in march , the territory of nine former confederate states was divided into five military districts, in which army commanders were authorized to oversee the civil administrations of the states. in virginia's military district, the army commander, general john schofield, interfered very little with the administration of francis pierpont, who served as provisional governor. pierpont provided a measure of needed stability compared to what had preceded it, and as a result slow but steady progress was made toward reconstituting some of the essential elements of local government in the state.[ ] the prospect of restoration of full political power to the states appeared briefly in march when congress provided that the confederate states would be readmitted to the union and their delegations would be seated in congress when they adopted constitutions which conformed to the constitution of the united states with the new fourteenth amendment. a convention, dominated largely by republican reconstructionists, met in december and brought forth the so-called "underwood constitution," named for judge john underwood who presided at the convention. the proposed new constitution contained the main features which were needed to secure reinstatement of virginia's sovereignty. in addition, however, it contained a controversial provision which, in effect, disenfranchised thousands who had served the confederacy. thus, the choice offered in the impending ratification referendum was difficult for most virginians. so controversial was this matter that the army commander was moved to intervene and postpone the referendum indefinitely.[ ] stalemate followed during and . francis pierpont was replaced in the office of provisional governor by henry horatio wells, a new yorker who was favored by the radical republicans. progress toward reconstitution of local government lost momentum as state leadership lapsed. intervention by president grant finally brought action on the underwood constitution by proposing that virginians vote on the controversial disenfranchisement clauses separate from the main features of the document. in july , the vote was taken, with the expected result that the "test oath" provision was defeated while the constitution was approved. in the general assembly elected under this constitution, the conservative party enjoyed a working majority over the republicans, who had been badly split by the referendum controversy. henry wells resigned, and was replaced by gilbert walker, who served first by appointment of the army commander and later by virtue of election to a constitutional four-year term. in january , legislators from virginia resumed their seats in the congress, and the last federal occupation troops left the state. the underwood constitution introduced major changes into the structure of local government.[ ] it adopted the northern system of dividing counties into townships,[ ] with a justice of the peace exercising his authority only within his township. other elective offices introduced at this time were county supervisors, a county clerk, collector, assessor, overseer of the poor, and overseer of roads. all these officials--some serving the township and others the county--were salaried, and greatly increased the size of the governmental apparatus formerly centered in the county court. the board of county supervisors was the general governing body of the county, comprised of members elected from each township. although this expansion of the structure of county government came in response to recognition that problems of the 's could not be solved with government geared to the 's, the impact of these problems plus virginians' conservative political tradition led to dissatisfaction with the township system from its inception. as soon as the original force of the reconstruction movement was spent, therefore, this system was modified to bring it more into line with virginia's historic governmental institutions. in and the number of separate elective offices was decreased, the independent powers of the townships were reduced, and the townships were converted into "magisterial districts."[ ] gradually the power to appoint all county officers except those with constitutional status was given to the board of county supervisors and the county's circuit court judge. [illustration: map of fairfax court house from g. m. hopkins, _atlas of fifteen miles around washington_, .] the last quarter of the nineteenth century saw the appearance and disappearance of a number of public offices now only dimly remembered. for example, the county office of commissioner of roads dated from , but the constitution of created township overseers of roads who, with the commissioner of roads, formed the county road board. when the townships were abolished, the duties of these boards were transferred to the commissioner of roads and road surveyor. by this highly decentralized system had resulted in enactment of several hundred local road laws by the states and led to a confused situation that was not cured until the state highway system and highway department were established in .[ ] from the time of the disestablishment of the church of england, care of the county's poor and orphans had been the responsibility of the county's overseer of the poor. public health measures to suppress smallpox also were carried on by this officer. the constitution of created a superintendent of the poor for each county, elected by popular vote, and the overseers of the poor became township officers. with the abolition of the townships, the superintendent of the poor also disappeared and the overseers became officers of the magisterial districts.[ ] in the early days of the nineteenth century, the justices of the county court had been responsible for the county's militia. this system was changed in when the militia were reorganized to form divisions, brigades and regiments on a state-wide basis. officers were appointed by the governor on recommendation of the county court. this system continued until the civil war, and when the militia was established after the war it was managed entirely from the state level.[ ] in the changes that followed the shift of governing power to the board of county supervisors, one of the chief losers was the county sheriff. he ceased to have any control of elections or revenue matters, and his other powers and prerogatives connected with administrative functions of county government were lost to others. he became exclusively a peace officer and custodian of the county jail, and these are the duties of his office today. as the nineteenth century ended, virginia moved toward another constitutional convention--its fifth since --with the hope of modernizing the machinery of government. as matters turned out, however, the resulting constitution of was not a forward-looking document, and its chief results were to formalize changes which had already occurred in practice. thus, much debate was spent on how voting qualifications should be regulated, and whether the old county court should be abolished or not. fairfax county's representatives in the convention voted for retaining the county court, arguing that the monthly sessions had significant social values--an "heirloom of great psychological importance." ultimately, however, the vote went against retention of the county court and it was abolished. its judicial functions were assigned to the circuit court, and its legislative and administrative functions were performed by the board of supervisors.[ ] the disappearance of this political institution which had been the focal point of virginia's local government for almost years, marked the end of an era which reflected the tradition that public affairs were best managed by the county's gentlemen freeholders. but it did not immediately usher in as its successor an era of professionalism and responsiveness to the wishes of the public. progress in these latter respects was postponed by slowness in widening the suffrage and the opportunity to hold public office. in this respect the constitution of perpetuated the restrictive system which had prevailed since by retaining the capitation tax and the requirements of literacy and/or the ability to explain any part of the constitution. the beginning of the twentieth century also marked the end of the rebuilding years which had followed the civil war. the simple struggle for subsistence, which had been the foremost theme when scarcities existed in all types of goods and the sources of capital were meager, no longer was the overriding consideration. a measure of normalcy had, by , returned to life in northern virginia. and if the pace of this style of life was not as vigorous or spectacular as in some other areas of the nation at that time, it offered, at least, the substantial attractions of a comfortable and secure rural setting with ready access to the centers of commerce and culture in nearby washington, alexandria, and georgetown. notes for chapter v [ ] hemphill, et al., _cavalier commonwealth_, p. . [ ] samuel e. morison and henry s. commager, _the growth of the american republic_, (new york: oxford, ), ii, - . [ ] porter, _county government_, p. . [ ] walter l. fleming, _the sequel of appomatox_, (new haven: yale university, ), pp. - . [ ] explaining his action to general grant, then supreme commander of all the military districts, general schofield stated that the members of the underwood convention "could only hope to obtain office by disqualifying everybody in the state who is capable of discharging official duties, and all else to them was of comparatively slight importance. even the question of whether their constitution will be ratified or rejected they treat with indifference. congress, they say, will make it all right anyway." hemphill, et al., _cavalier commonwealth_, p. . [ ] see porter, _county government_, pp. - , - , . [ ] the introduction of the township was probably due to the fact that a number of new yorkers participated in the convention. townships had never been part of the tradition of virginia's local government. [ ] virginia, laws of - , c. . [ ] porter, _county government_, pp. , ; _code of virginia_ ( edn.) title , c. . [ ] porter, _county government_, pp. - , . [ ] _ibid._, p. . [ ] ralph mcdanel, _the virginia constitutional convention of - _, (baltimore: johns hopkins university press, ), p. , reports that r. walton moore was one of fairfax county's delegation to the convention, and that he argued strongly for the social values of retaining the court. the motion to retain the monthly county court was defeated, however, by a vote of to . [illustration: the dedication of the marr monument in . copy by lee hubbard.] chapter vi the twentieth century courthouse the twentieth century brought fairfax county more than a new constitutional framework; it brought a new outlook and spirit. something of this spirit was reflected in the following quotation from a short history and prospectus of the county published by the county board of supervisors in : verily, fairfax county, old in its history, and hoary in its traditions, is throbbing with a new life and enterprise. only yesterday were her advantages and possibilities appreciated; yet, today she is attracting settlers from all parts of the union, and even from foreign countries. certainly no other section extends a more cordial welcome and more attractive inducements to the investor and home-seeker.[ ] if this statement seemed perhaps a bit too eager, it was at least hopeful and optimistic in contrast to the spirit that had prevailed during the long years of reconstruction. it expressed a feeling of confidence that came from having weathered the depression which followed the panic of better than many parts of the country.[ ] [illustration: "the tavern," across little river turnpike from the courthouse. photo by helen hill miller, .] [illustration: the courthouse about .] one reason for this was fairfax county's expanding contacts with the city of washington, chiefly by having become a supplier of its dairy and truck garden produce, and by becoming the residential area for increasing numbers of employees of the federal governmental establishment. these elements of the economy of northern virginia offered more resistance to the depression of the 's than was possible in the areas of south and central virginia which depended on cotton and tobacco. in turn, it was the development of rapid railroad service, both steam and electric, that made both of these developments possible at this time. the critical importance of this transportation was recognized by the county supervisors' publication: the eastern part of the county is in the immediate vicinity of the cities of washington and alexandria; while all sections of it are within a few hours' drive of these cities. in addition to the accessibility of these cities by roadways, three steam and three electric railways connect the county with washington. the greatest trunk lines north and south traverse fairfax county. through trains on the pennsylvania, southern, chesapeake and ohio, norfolk and western, seaboard air line, and the atlantic coast line, are hourly passing through this county, affording convenient and direct connection with all parts of the country. every section of the county is within easy reach of some one of these roads; and with their double track facilities, and consequent excellent local accommodations, great activity in suburban home building is observed on every hand. especially is this true along the lines of the electric railways, where numerous villages are springing into existence. the proximity and accessibility to washington, the most magnificent city in the world, together with the splendid natural advantages of fairfax, must inevitably make the county rich, populous and great.[ ] the heydays of the steam and electric railroads in northern virginia were followed in the 's by improvement and expansion of the road system.[ ] as the number of automobiles increased--and their prevalence was forecast by designation of present lee highway as the initial segment of the first transcontinental highway running westward from the zero milestone on the ellipse in washington--the paving of roads became a major concern of local communities. both free public highways and toll turnpikes built by subscription and bond issues were undertaken in fairfax county. even after the county elected to turn over its roadbuilding to the state under the byrd road act in , the county's leaders continued to have a deep interest in the increased population growth that roads and railroads made possible. increased population brought increased needs for various new public services. shortly after the first state board of health was established in virginia in , the counties of the state established local boards. the chairman of the board of county supervisors automatically became chairman of the health board in this early experiment in public health services.[ ] the machinery for raising revenue was made more efficient by redrawing the division of labor between the commissioner of revenue and the county treasurer. most far-reaching in the long run, however, was the enactment in of state legislation giving counties the option of adopting various managerial forms of government if they so desired. fairfax county exercised this option in by adopting the county executive form of government.[ ] under this form of county government, the board of supervisors remained the sole legislative authority of the county, but the executive functions were placed under the supervision of a new officer, the county executive. the county executive, as well as all boards and commissions responsible for special services and administrative functions, were appointed by the board of supervisors, and served either for specified terms or at the pleasure of the board. the supervisors continued to be elected by the county's voters, each from one of the magisterial districts. this method of election was adopted deliberately as a means of maintaining a balance of political representation of the western and southern parts of the county, which still were rural in their economic and social orientation, and the north, east and central areas of the county, which had been intensively developed as part of the suburbs of washington and alexandria. the involvement of the public in county government was seen in many forms. service on county boards and commissions was one. also, as newcomers poured into the county seeking homes, the neighborhoods and communities formed civic organizations or citizens associations to provide means for group action on problems of common concern. parallel to these groups, others, such as parent-teachers associations, formed to deal with school-related problems which were both inside and outside the scope of governmental services in the field of education. these forms of citizen involvement in public affairs--prompted partly by the sheer size of the new demands for service and partly because the newcomers to fairfax county came from areas where wide participation in local government was taken for granted--had a profound effect on the county's historic outlook on public affairs. no longer was it accepted that certain families or individuals held among themselves the privileges, powers and obligations of governing. this tradition, symbolized by the gentlemen justices of colonial times and the nineteenth century, was replaced by a new system where political leadership was established through service in the community and verified by the ability to win in competition at the polls. the new dimensions of government's role necessitated finding more space for the county's offices. the clerk's office, which historically had been the focal point for the county's continuing administrative functions, ceased to be able to contain all the county's offices as early as the 's. an additional building was authorized, but delays in financing and construction postponed its completion until .[ ] however, by this building was so crowded that both its attic and basement had been converted to office space, and many county agencies were using additional rented space in non-county buildings. plans were developed in the early- 's for a major addition to the courthouse building. delays were encountered, first because of the shortages of materials and manpower during the years of world war ii, and then because of problems of funding this work amid other urgent demands for tax revenue. ultimately, both shortages were relieved, and work was begun on the central block and south wing of the courthouse as they appear today.[ ] the jail section and wing containing the clerk's records of land transactions and court proceedings were added to the building in .[ ] as the county's need for space to house its governmental offices continued to grow through the 's, some consideration was given to moving the courthouse to a new location.[ ] the transformation of fairfax from a town into a city in added a complicating factor to this issue for it meant that technically the county had no control over the land on which its seat of government stood. the city of fairfax, however, was anxious to keep the center of county government in its existing location, and offered to condemn sufficient land for the county's building needs.[ ] the seat of county government remained at fairfax, but the courthouse square no longer sufficed to contain the complex of buildings involved. by construction had been completed on a county governmental center, later named the massey building, to honor carlton massey, the first county executive, who served from to . a separate building was erected nearby for the county police department, and plans were made for other buildings in the future.[ ] [illustration: rear view of the fairfax county courthouse complex. photo by the office of public affairs, about .] [illustration: view of the fairfax county courthouse, the massey building, and downtown fairfax. photo by bernie boston, .] overshadowing the old courthouse tract, the new center of government nevertheless preserves the evidence of the past by continuing use of the original (north) section of the courthouse building and its addition, all in an architectural style reminiscent of the colonial period in virginia. the presence of the past combine with a sense of the present and the future to make the fairfax county courthouse both a symbol and a functioning seat of a county government which in the year had been in existence for more than two centuries. notes for chapter vi [ ] fairfax county board of supervisors, _industrial and historical sketch of fairfax county, virginia_, (fairfax: county board of supervisors, ), p. . [ ] allen w. moger, "the rebuilding of the old dominion," (unpublished doctoral dissertation, columbia university, ), pp. - . [ ] fairfax county board of supervisors, _industrial and historical sketch_, pp. - . [ ] the campaign to improve virginia's roads had been waged since the 's. see, for example, the rhetoric and argument in favor of road improvements set forth in the _programme of the virginia good roads convention_, (roanoke: stone printing, co., ) held in richmond in october . as to the effects of the rise of automotive travel, see fairfax county chamber of commerce, _historic, progressive fairfax county in old virginia_, (alexandria: newell-cole, ), pp. - , containing a road map of the county's hard-surfaced roads and unimproved roads in . [ ] porter, _county government_, p. . [ ] fairfax county board of supervisors, _annual report, _, p. . [ ] fairfax county board of supervisors, minute book, v. , , william deming was the architect of this project. as with previous expansions of the clerk's office, the old building was torn down and the bricks re-used in the new building. [ ] fairfax county board of supervisors, minute book, v. , ; v. ( - ), ; v. ( - ), ; v. ( - ), ; v. ( - ), ; v. ( ), . [ ] fairfax county board of supervisors, minute book, v. ( ), pp. - . [ ] fairfax county board of supervisors, minute book, v. , - notes that reston offered acres for the use of the courthouse, and tyson's corner and the intersection of routes and also were considered. see also, _ibid._, v. ( ), . [ ] fairfax county deed book, b- , pp. - ; - . the courthouse commissioners were charles little, david stuart, william payne, james wren, and george minor. [ ] fairfax county board of supervisors, minute book, v. , ; v. , . on april , the board of supervisors voted to construct a new office building and authorize a referendum for a $ , , bond issue for this project. the bonds were approved by the voters, and the building was built on a -acre tract belonging to mary ambler, which was condemned by the city and then purchased by the county from the condemnor. the architect for the project was william vosbeck, and the contractor was the blake construction company, fairfax county board of supervisors, _annual report_, , p. . chapter vii the architecture of the courthouse and its related buildings . the courthouse complex among the courthouses built in england's north american colonies, those of virginia developed characteristics which expressed peculiarly well the prevailing patterns of landholding and manner of conducting local government. unlike new england, where each small community had its frame meeting house, containing within its walls "all the ideals, political, moral, intellectual and religious of the people who attended,"[ ] the seats of county government in colonial virginia were centrally located in rural settings. a few county courthouses grew into regional centers of commerce, industry and finance; but most remained independent and apart from any surrounding community, and some may still be seen today standing "as solitary sentinels, symbolic of government."[ ] it was also characteristic of virginia that these courthouses were not single buildings, but were complexes of several structures. the typical courthouse compound was enclosed by a brick wall, inside which were a courthouse, a jail, a clerk's office, and, sometimes, a row or cluster of offices for lawyers. invariably, also, an inn or ordinary occupied a site within the compound or immediately adjacent to it. this style of courthouse may be found through virginia, dating from earliest colonial times; and, although many fine courthouses are found in the early architecture of delaware, maryland, pennsylvania and north carolina, none of these areas developed the design concept of a courthouse compound. this design concept was used in the courthouses of fairfax county at springfield ( - ) and alexandria ( - ); and it was followed in the county's third courthouse which was completed in . the courthouse tract was situated near the geographical center of the county, at the intersection of the little river turnpike and the old colchester road. the tract consisted of four acres, acquired by a deed from richard ratcliffe and his wife serian. specified in the deed were structures including a courthouse, clerk's office and goal, "... and every other building and machine necessary ..."--the latter presumably referring to gallows, pillory, stocks, and the like. the may fairfax county court order book did specify that the courthouse should be forty-by-thirty feet with a twelve-foot portico, the gaol forty-by-twenty, the clerk's office twenty-by-eighteen and covered with slate or tile, a gaoler's house twenty-four-by-eighteen feet, and that stocks, pillory and whipping post also be provided by letting the entire "... building of the same to the lowest bidder."[ ] in accordance with statutory requirements, space was delineated for the prison bounds. this was done in march , and the area was described in a survey and report of the commissioners, as follows:[ ] in obedience to the order of the worshipful court of this county, hereunto annexed, we the subscribers in company with col. william payne, the surveyor of this county, proceeded this thirteenth day of march eighteen hundred, to lay off ten acres of ground for the prison rules of this county, and have ascertained and bounded the same by the following meets and boundaries, ... including the said four acres, the court house, gaol, clerk's office, the brick tavern, kitchen, stables and store house, and beg leave to report the same with the plat thereof hereunto also annexed.--given unto our hands and seals: thomas gunnell (seal) n. fitzhugh (seal) t. ellzey (seal) whether all of the buildings mentioned in this report actually existed at that time may be questioned, since the survey plat shows only the courthouse, clerk's office and jail. as to these three, the plat showed the courthouse situated as at present, with the clerk's office almost directly south a distance of about feet, and the jail about the same distance south, but in back and west of the clerk's office. the plat does not show roads or other features of the platted parcel, but the known position of the courthouse in relation to the turnpike supports the suggestion that the brick tavern referred to was located on the north side of the turnpike, the building later known variously as the willcoxen tavern, the union tavern and the fairfax tavern. the other buildings referred to in the report apparently left no traces, for except through an occasional glimpse of them in old photographs of the courthouse, they are not noted in the records of the court. these buildings formed a cluster which, if it was not all neatly enclosed within the courthouse fence, at least was immediately adjacent to and integrated with the activities centered in the court. in the first three decades of the nineteenth century, the town of providence grew up around the courthouse, and by some dwellings and residents were listed.[ ] but the town never eclipsed the courthouse; and, from its commanding position on the gentle hill at the crossroads, the courthouse itself continues to serve as a focal point and symbol of government. _the clerk's office._ an office for the clerk of the county court was mentioned in the survey of the courthouse lot made in march , and was shown on a location south of the courthouse about feet and east of the jail about sixty feet. according to the survey the office was a relatively small building, one or one-and-one-half stories high, with a chimney at the south end and a door opening on the east side. this office was the depository of all important public records in the county, and therefore was a focal point for much of the activity that occurred at the courthouse throughout the year. a news report in the _alexandria daily advertiser_ of february , called for bids for an addition to the clerk's office and repairs on the "public building," all of which should be in accordance with a plan lodged with col. james wren, and constructed of brick "covered with slate."[ ] during the next forty years, the functions of the clerk grew in both size and importance as he was called upon to serve both the county court and the circuit court. the need for repairs combined with the need for more space required increasing attention to the old building, until, in , it was determined that a new office building for the clerk must be built. newman burke, george w. hunter, jr. and alfred moss were appointed commissioners to oversee the demolition of the old office building and the construction of a new one. fortunately, the commissioners' notice to builders, inviting bids on these jobs, was published in the _alexandria gazette and virginia advertiser_ of july , , and provides a detailed description of the materials and construction to be used. it included the instruction that such of the old materials as could be used in the rebuilding should be so used. like the courthouse building, the clerk's office suffered damage and deterioration during the war years of - . when the courthouse compound became a headquarters for union army patrols, and civilian government either ceased or moved to a temporary seat elsewhere, care and custody of the clerk's office could not be guaranteed. many of the record books and files were taken to places of safekeeping in private homes. however, many could not be moved in time to prevent them from being scattered, taken, lost or destroyed as soldiers occupied the office building. when the war ended, the task of re-equipping the office and restoring it to usefulness was a major one. [illustration: the clerk's office about .] in , the clerk's office burned and subsequently, a new office building was added to the courthouse complex. it was a two-story brick building, larger than the old clerk's office and located beyond it to the south of the courthouse. it was probably completed by , at which time the board of supervisors was appropriating funds for new furnishings. the architecture of this newest office presented a mixture of three styles. in overall appearance, its square shape, hipped roof and functional design were reminiscent of the eighteenth century buildings of james wren. the late nineteenth century's preference for exterior decoration was illustrated by a dentiled cornice, a belt of corbelling three courses wide in the brickwork below the cornice, and brick pilasters on each side of the main doorway, topped by scrolls and brackets supporting the pediment. in the center of the building on the second floor, a palladian-style window was installed, providing a contrast to the design of the other windows. two courses of corbelling also appeared on the two chimneys located at the back and in the center section of the building. notwithstanding these exterior decorations, the general design of the office represented a recognition of the needs of office workers and the response of late nineteenth century architects to provide light, air, and functional efficiency in the arrangement of space for offices. telephone service and electric lights were installed in the clerk's office in .[ ] after , the old clerk's office was demolished. a new office building was erected south of the courthouse in , with labor and materials provided by federal and virginia relief funds. this building was demolished when the extensive addition was made to the courthouse, - . a new wing was put on the back of the courthouse in to accommodate the rapidly increasing quantities of archives generated by the business of courts and the clerk's office in a county whose population was growing at an unprecedented rate.[ ] _the jail._ as shown in the survey of the courthouse tract, made in march by the county surveyor, william payne, the jail was located on the southwestern corner of the original four-acre tract. no contemporary descriptions or records of the jail have survived, but the survey sketch shows a two-story building with chimneys at each end. presumably the construction material for the jail was brick, since the other principal buildings in the fairfax courthouse compound were made of this material. with regard to the interior arrangement and description of major features, conjecture is also necessary. but, again presumptions may be made that its facilities were the same as others of the time--for example, that the bars used on doors and windows were the flat type (rather than round or other shapes), which were laid across each other to form a lattice and riveted together where they overlapped. also, in accordance with contemporary custom, it may be presumed that the jailor and his family made their home in the same building with the prisoners, and so attended to their meals and other needs. exactly when and how the first jail was constructed at the courthouse site is not entirely clear. payne's survey in showed a jail building on the site. yet only nine years later the _alexandria daily advertiser_, april , , carried an invitation for bids to build a jail at fairfax court house. moreover, although the records of the county court for the next fifty years contain references to repairs and construction work for the jail, they customarily fail to include descriptions of work to be done. accordingly, little can be gleaned from these sources to aid the architectural history of the courthouse complex. [illustration: the jail, built about . photo taken in .] [illustration: police department, about . photo courtesy the fairfax county historical society.] along with the other public buildings at the courthouse compound, the jail suffered during the years of war from to . when civil government ceased to function at the courthouse, competing groups that claimed civil authority in fairfax county used jail facilities in neighboring alexandria and leesburg when the need arose. during the latter years of the war, when union troops occupied the courthouse, the jail offered its facilities as a storehouse as well as a place of detention for military prisoners. but the army of the potomac had little time or incentive to keep the jail in good repair, and so, like the courthouse, it suffered extensively from the war. during the 's, repairs and construction of additions to the original building restored the jail to service. the g. m. hopkins _atlas_ showing the courthouse complex depicts the jail as being larger than the courthouse in size. in , fire destroyed this building, and arrangements had to be made to use the alexandria city jail until a proper new jail could be constructed for the county.[ ] the new jail was located directly behind (west of) the courthouse, facing onto the little river turnpike. its materials and construction indicate that the original portion was added to on two later occasions. when finally completed, the jail was a two-story t-shaped brick building, with a one-story wooden porch across the full length of the front. in the original section (facing onto the turnpike) the windows have plain wooden pediments. the cornice and chimney tops are corbelled, and there are iron cresting and finials on the ridge of the hipped roof. in the second section, which forms part of the stem of the "t," there are segmental arches over the windows and an ornamental cornice consisting of a course of bricks laid vertically. in the third section, which completes the stem of the "t," the brickwork is laid in flemish bond (matching the courthouse brickwork in contrast to the common bond of the rest of the jail), and the windows are topped with flat arches. the second and third parts of the building are covered with a gable roof.[ ] in this new jail building, the jailor had living quarters in the front portion, and until these were used as his residence. the building itself ceased to be used for detention of prisoners shortly after that time, for when the addition to the courthouse was completed in , jail facilities were incorporated into this addition. since , the old jail building has been used for offices of various county agencies, including the juvenile court and probation office, civil defense office, fire board, police dispatcher, and recreation department.[ ] _associated buildings and structures._ certain structures were associated with the courthouse because they were required by statute, and others had their origin in custom and convenience. in , when the legislature of the new state government revised the law relating to organization of the local courts, it reenacted most of the features of the system which had been followed in colonial times. by law all counties had to build and maintain a courthouse, jail, pillory, whipping post, and stocks. this law also required that there be two acres of land around the buildings of the courthouse, and that prison bounds of ten acres should be provided for the "health and exercise of prisoners."[ ] a report of a survey of the courthouse tract in march shows metes and bounds for a four-acre tract within a larger ten-acre area, and states that this land was for the purpose of erecting a courthouse, jail, clerk's office, kitchen, stable, and storehouse plus providing an area to serve as the prison bounds. additionally, a well was dug a short distance south of the courthouse. altogether, these comprised the complex of structures associated with the court in the first half of the nineteenth century. _the tavern._ the brick tavern was a substantial building, built on the north side of the little river turnpike directly across from the courthouse complex. no detailed description of this building as it appeared in has been found. it was, at least in later years, a multi-story building which rivalled the courthouse in size, and expanded as the patronage of the circuit-riding judges and their entourages of attorneys and others combined with the regular passage of travellers on the little river turnpike to create a prosperous business climate. after the civil war, the brick tavern was purchased by col. h. b. taylor, who operated it during the 's and 's. because of its favorable location near the courthouse, the tavern continued to be frequented by those who had business with the court, and lawyers maintained their offices there. an advertisement in the _fairfax herald_ of april , refers to the building as the union hotel, and describes it as a three-story brick building with annex, containing about twenty-five rooms, with stable and outbuildings, a two-acre garden and a fine well--"a desirable residence for summer boarders." later in the name was changed from union hotel to fairfax hotel and its management was taken over by james w. burke.[ ] the hotel continued to be operated until when it was demolished to clear the site for subsequent construction of a building for the national bank of fairfax. the bricks, mantels and doors from the hotel were re-used in construction of the home of helen hill and francis pickens miller, called "pickens hill." it is located on chain bridge road north of fairfax, and in recent years has become a major building of the flint hill private school complex. _the well._ at the time of construction of the courthouse, a well was dug on the south side of the building. over the years, pictures show a variety of overhead coverings to shelter the well and its users. the well was a large one, appearing to be four or five feet in diameter at the top, and was surrounded by a raised platform. standing on this platform, one drew water from the well by a windlass operated by a hand-crank. later the box on which the windlass was mounted was fitted with a hand pump, and a trough for filling buckets or other containers was placed at the side of the well. this well served the courthouse into the twentieth century, but was closed and capped when the town of fairfax installed underground water mains. the gazebo-like well structure was moved to sully. "_public comfort station._" many references to the early privies in use on the courthouse grounds appear in both the court order books and the board of supervisors minute books. as recently as , outside toilets were still in use. in october of that year, "the county engineer was instructed to make necessary repairs to the public comfort station on the court house lawn."[ ] _memorials_ _memorials of the wars._ on the lawn in front of the old courthouse stand two monuments to the honored dead of four wars. the john quincy marr monument was erected on june , , by the marr camp, confederate veterans, commemorating the first confederate officer killed in the civil war. the second monument was erected under the auspices of the fairfax county chapter of the daughters of the american revolution. on a bronze plaque on one side are listed those fairfax countians who gave their lives in world war i and on the other, a plaque listing those who gave their lives in world war ii and the korean conflict. [illustration: naval cannon in front of the courthouse.] [illustration: the marr monument commemorating the first confederate officer killed in the civil war, june . photo from the national archives.] two naval cannons stand on either side of the marr monument, pointed toward the national bank of fairfax, formerly the site of the brick tavern. facing the bank, the cannon on the left is inscribed with an anchor and the following lettering: pdr boat howitzer j.a.d. u.s.n.y. washington lbs. pre no. . the cannon on the right has inscriptions which are very worn and indistinct. there is an engraved anchor, but except for a letter here-and-there, the inscription is unreadable. [illustration: world war i memorial plaque.] [illustration: world war ii and korean conflict memorial plaque.] _plaques and portraits._ mounted in the inside north entrance hall beside the oldest portion of the courthouse are three plaques. one is a tablet with names of civil war veterans of marr camp, confederate states of america. the second is a memorial to george auld ( - ), born in scotland, who "was for many years chairman of the board of supervisors of fairfax county, virginia...." the third is a plaque commemorating the building of the first addition to the courthouse, a.d. , w. i. deming, architect, and c. h. brooks, builder. in the central entrance hall, there is a bronze plaque commemorating the large addition to the courthouse completed in , robert a. willgoos and dwight g. chase, architects, and eugene simpson and bro., contractor. a large mural, painted by esther l. stewart in , is hung above the landing of the grand central staircase. it depicts fairfax county scenes, buildings, and portraits of lord fairfax, george washington, and george mason. [illustration: mural at the central staircase, fairfax county courthouse. painted in by esther l. stewart.] on the brick floor of the arcaded porch of the first ( ) section of the courthouse, is a national register plaque ( listing) placed by the fairfax county history commission in . in the hall inside hangs a plaque from the virginia historic landmarks commission commemorating the building's placement on the state register in . hanging on the walls of this oldest court chamber are oil portraits of county notables. (see appendix for biographical listing.) on the courthouse lawn, a dogwood tree was planted in dedicated to the firemen of fairfax county. a small bronze plaque with a poem and the dedication was set in a cement post under the tree, by the firemen's auxiliary. in the wake of its many unresolved historical mysteries, the restored courthouse remains a functional courtroom, as required by the terms authorizing the work. yet it cannot claim to represent any particular period of fairfax county's history with full historical or architectural integrity. as now redesigned and rebuilt, the courthouse presents an outward appearance presumably similar to its original form. the interior achieves the pleasant appearance and atmosphere of a working courtroom of the past. notes for chapter vii [ ] catherine fennelly, _the new england village scene: _, (sturbridge: old sturbridge village, ), p. . [ ] sidney hyman, "empire of liberty" in _with heritage so rich_, (new york: random house, ), pp. - . [ ] fairfax county deed book, b- , pp. - ; - . [ ] fairfax county, record of surveys, - , p. . [ ] joseph martin, _gazetteer of virginia and the district of columbia_, (charlottesville: martin, ), p. . [ ] fairfax county, record of surveys, section ii, p. , march , . [ ] fairfax county board of supervisors minute book, # , pp. , , , ( - ). [ ] interview with thomas chapman, jr., former clerk of the circuit court; fairfax county board of supervisors minute book # , pp. - , august , ; architectural drawings, - , facilities management office. [ ] fairfax county court minute book, - , april court, , "the county jail having been destroyed by fire ...," the county court ordered that alexandria city jail be used until a proper jail could be erected in the county. [ ] fairfax county court minute book, june court, . [ ] interview with thomas p. chapman, jr. [ ] hening, _statutes_, october , xiii, - . [ ] _fairfax herald_, may , , notes that mr. t. r. sangster has removed his law office to the fairfax hotel; the union hotel and fairfax hotel sometimes have been assumed to be separate buildings. however, identical advertisements of this hotel appeared in the _fairfax herald_ on april , and may , , the former calling it the union hotel, and the latter calling it the fairfax hotel. the april , _fairfax herald_ reports the rental of the union hotel by burke. by tradition, the hotel building across from the courthouse has been known as the willcoxen tavern or just simply "the tavern." [ ] fairfax county board of supervisors minute book, # p. , october , . . the courthouse _the courthouse plan and its architect._ the design of the fairfax county courthouse followed the virginia tradition that the seats of civil government should be designed with dignity as well as adequacy for their function.[ ] consequently, the courthouse building, which in other respects was a plain rectangular two-story brick structure, departed from strict utilitarian design with its open arcade on the ground floor front, and its cupola in the center of the roof, serving as a base for the flag pole and housing the bell which was used to announce the convening of court. the advantages of the two-story building for innovations in design and decoration were even more evident with respect to the interior. entered through the front door which opened into the arcade, the courtroom gave the same impression of vaulted space that is associated with the nave of a church.[ ] the space over the arcade on the second floor was enclosed, and presumably used as the jury room. this room was entered from a balcony located across the front of the building (the back of the court chamber) and along each side of the building. at the front of the chamber (as it appeared in the late nineteenth century) was a raised bench, and directly to the left of the judge's seat was a doorway leading into a pair of rooms used by the court. no descriptions of the interior of the courtroom as it appeared in the early part of the nineteenth century have been found; but it is probably that the business of the court was transacted, as it had been since early colonial times, at a large table, centered in the main chamber of the courthouse and spacious enough to seat the justices of the county court and the sheriff, if the business of the day concerned him. one or more separate tables customarily were provided for the clerk of the court and those of his staff who attended the court session. it was also customary to separate the portion of the courtroom occupied by the court from that occupied by the public, and this was accomplished by installation of a wooden railing or partition. fireplaces heated the courtroom chamber and a second-floor fireplace heated the jury room above the open arcade. details of the plastering and woodwork, the lighting fixtures and other hardware are not known, yet it seems certain they must have been of good taste and design, for their selection was in accordance with a plan prepared by james wren, the designer of the falls church, christ church in alexandria, and probably pohick church. although james wren's name appears frequently in the public records of fairfax county during the eighteenth century, his principal legacy was the architecture he designed and helped to build. in the 's references to him are found throughout the vestry books of truro parish and fairfax parish.[ ] in he prepared the plans for construction of the falls church, which formed the nucleus of the village which grew up around it. in he designed the plans for christ church in alexandria. wren and william weit were each paid forty shillings in for plans furnished to the vestry, for pohick church.[ ] he had, through design of these and other structures, earned a reputation as the foremost builder and designer of buildings in his locality[ ]--a reputation attested to by numerous contracts, recorded in the fairfax county court order books, under which young men were apprenticed to him to learn the "trade sciences or occupation of a carpenter and joiner." according to melvin lee steadman's genealogy of the wren family,[ ] james wren was born in king george county about , the son of john wren and ann turner wren. he learned his trade of carpentry and joining there, and about he moved to truro parish, fairfax county. the first reference to james wren in the land records of fairfax county is found in a deed dated june , in which one james scott conveyed to wren a tract of acres on which wren was then living. ultimately, wren built a home, now called "long view," adjacent to the present city of falls church, and assembled a substantial plantation, known as "winter hill," now within falls church city. he also operated, at winter hill, "colo. wren's tavern." james wren served as a justice of the county court. he was a trustee of the town of turberville which in was laid off on land near the little falls of the potomac but never fulfilled the hopes of its promoters. following his military service in the revolutionary war he held various offices in the county government, including that of sheriff and commissioner of the tax. he acquired extensive landholdings in fairfax and loudoun counties. james wren was married three times; first, in , to catherine brent of overwharton parish (aquia church); next, about - to valinda wade, and last, to sarah jones of alexandria in . he died in and was buried at long view.[ ] the architecture which james wren created for the courthouse--as well as his churches and the numerous private buildings he designed and built under contract or for his friends--reflect the general level to which that art had advanced in colonial virginia. the styles were adapted from prototypes in england.[ ] innovations which were made in adapting these styles to american use were, in most instances, attributable to the differences in building materials and the types of skilled labor which were available to the american builder. _the origin of the courthouse design._ the architectural design which james wren selected for the fairfax county courthouse utilized several features which already were familiar hallmarks of public buildings in colonial virginia, and in particular the colonial capitol at williamsburg--probably the most impressive public building in virginia at that time. the use of brick as building material, the use of two stories, topped by a cupola, and, most strikingly, the use of arches, all combined to suggest the influence of this capitol building on the courthouse design.[ ] the courthouse was far from being a copy of the capitol and wren added to these familiar features several new ones that made the courthouse an architectural innovation in its own right. when it was completed in , the fairfax county courthouse was the first example of a new design which architectural historians have called "the town hall style,"[ ] and have traced to english town halls of the late seventeenth and eighteenth centuries. like the fairfax county courthouse, these town halls were two-story brick or stone buildings which presented to their front a gable-end, ground-floor arcade (or piazza) covering the main opening onto the street, an entrance set into the end wall, and, frequently, a cupola. the town halls of blandford in dorset ( ), and amersham in buckinghamshire ( ) illustrate these features with variations of details. no documentary evidence has been found to show how james wren evolved his design for the fairfax county courthouse; but it seems probable that he knew of this style that was enjoying current popularity in england, and that john bogue, the "undertaker" who built the courthouse, was familiar with the methods of constructing such buildings, for bogue had just come to america from england in . while the similarity of geometric and structural exterior design strongly suggests that the fairfax county courthouse had its architectural ancestry in the english town halls of that period, the analogy is weaker when functions are compared. the courthouse for fairfax county was designed and used entirely as the seat of local government. the commercial activity that was attracted to the courthouse site on "court days" enjoyed no special privileges or facilities in the building. in contrast, town halls in eighteenth century england often served the dual purpose of providing a facility for transaction of public business and carrying on the commerce of the community. the style of the english town halls provided space in the open arcade of the ground floor to house a farmers' and tradesmen's market, and space in the second floor chamber for the town council to meet and do its work.[ ] the origin of this type of building is not entirely clear. it is difficult to imagine it growing naturally in the political and social climate of the villages which grew up clustered around england's medieval castles and monasteries. at the time when town-and-market halls were common in the central squares of free towns in italy, germany and the low countries, they were absent in england. their appearance in england dates from the seventeenth century when town government developed its own identity, and when british political and cultural alliances with the dutch were established.[ ] imported to virginia as a form of courthouse building, this town hall style became a popular prototype for buildings erected in several counties during the first three decades of the nineteenth century. after being introduced in fairfax county in , this style appears in the nelson county courthouse built in , the caroline county courthouse built in , the sussex county courthouse built - , and the madison county courthouse built - . variations in the layout of the interior appeared in the use of the space over the arcade; sometimes it was used for the jury room, and at other times it was used to accommodate a balcony for spectators.[ ] after , however, a new style of courthouse building may be seen in the public buildings of virginia counties. based on the neo-classical lines of the state capitol, designed by thomas jefferson, there came into being a series of courthouses which were suggestive, if not actual, representations of the seat of state government.[ ] _the courthouse._ in its exterior appearance the fairfax county courthouse underwent little change during the first century of its service. indeed, looking at the courthouse square in , it might have seemed that the courthouse was the only building that had not been rebuilt, relocated or significantly expanded. the effects of passing time were more evident in the evolution of the layout and furnishings of the court. throughout the first half of the nineteenth century the interior of the courthouse probably remained similar to the layout described in colonial times. generally the focal point of the court chamber was a long table at which the county court was seated, flanked by smaller tables where the court's clerks did their work. customarily, also, a railing across the room separated this space from visitors whose business or curiosity led them to crowd in upon the court and its staff. as long as the gentlemen justices of the court were in reality, as well as name, the governing authority of the county, this arrangement of the courthouse chamber was the most sensible that could be suggested. as the purely judicial duties were isolated and assigned to the professional judges of the district court it became customary to renovate the court rooms to install the features which have become associated with litigation--the raised bench of the judge, the jury box, the witness stand, and counsels' tables. these changing ideas of what a court chamber should look like became established during the first half of the nineteenth century, and were reflected in the courthouses built in virginia during that period. therefore, when the fairfax county courthouse was restored to service after the civil war, its interior design resembled that which was customary for judicial chambers.[ ] that the task of renovation and restoration was extensive is indicated by a report in the _alexandria gazette_ of october , stating that "the interior of the courthouse of fairfax county has been entirely destroyed. nothing remains of the building but the walls and the roof." moreover, the work of renovation had to be carried out under the double difficulty of shortages of funds and labor that was skilled in cabinetmaking and metalworking. in the end, the restoration of the courthouse was a gradual process in which first one and then another improvement was added. no grand design seems to have been followed or a complete record of accomplishments maintained. hence, evidence of the courthouse furnishings is seen in such separate notations in the court minute books as follow: october court, . ordered that the com. of public buildings be instructed to purchase enough green-baise to cover the table in the bar and have it covered before the circuit court commenses.[ ] december , . ordered that the com'r of public buildings have the sawdust removed from the floor of the courtroom, and have said floor covered with a substantial cocoa matting at the expense of the court.[ ] december court, . ... some person or persons have entered the court house building in the night, without authority and have damaged said building and have greatly annoyed the citizens living nearby by violently ringing the bell. it is therefore ordered by the court, that such trespass ... will be punished to the full extent of the law.[ ] the bell referred to by the court was a standard feature of many virginia courthouses, and was rung to announce the convening of court sessions. in the fairfax county courthouse, the bell was hung in a cupola on the roof, and rung with a bell-pull passing through the building's attic to the balcony level of the courtroom.[ ] a major change in the appearance of the courtroom occurred with the installation of wooden benches in the public section of the chamber. tradition holds that the benches had been pews at one time in jerusalem baptist church located on the ox road between fairfax and fairfax station. this church had been built on the site of the old colonial "payne's church." illustrating the period when gaslights replaced candles, an elaborate brass chandelier fitted for gas illumination has been found in the courthouse attic. it is possibly the fixture which the sheriff was directed at the february court to purchase, for a price not to exceed $ . . in about , electric lights were installed.[ ] during the restoration of the courthouse following the civil war one major alteration of the exterior appearance of the courthouse occurred when the brickwork between the windows on the first and second floors was removed to change the windows into single two-story-long vertical openings. the courthouse windows remained this way until when renovation of the original section of the courthouse was carried out, and double rows were reestablished as they appeared in photographs taken during the civil war. [illustration: the old courthouse, , prior to restoration in .] [illustration: the old courthouse after restoration in .] reportedly, another major refurbishment of the courtroom occurred about . in keeping with the style of that time, the emphasis was on panelling with dark, polished woods, and moderately ornamental carving which achieved an appearance of massiveness and dignity. the judge's bench was located at the west end of the courtroom on a raised platform and behind a heavy wooden balustrade. against the west wall of the room and behind the judge's bench, wooden panelling covered the space from the southwest corner of the room to a doorway beside the bench which led into smaller chambers in the rear. this panelling was topped with a swan's neck pediment behind the judge's chair. at floor level, beside the judge's bench and behind the balustrade, were the witness stand and clerk's desk. the jury box was located along the south wall of the room and faced an enclosure where tables for counsel and reporters were placed. these, in turn, were separated from the public seats by a carved wooden balustrade. seating for the public on the ground floor was provided in two sections of wooden benches--the former church pews referred to earlier--separated by a center aisle. at the rear of this section was another balustrade setting it apart from the open space inside the door to the entrance arcade. the two fireplaces in the corners of the east end of the room were bricked-in and covered with plaster. on the south wall, a stairway provided access to the balcony over the open portion of the room adjacent to the outer entrance. from the rear of the balcony were doorways into a jury room and small office which occupied the second-floor space over the entrance arcade. three rows of benches, each raised one step above the one in front, provided additional seating space for visitors in the balcony. the ceiling of the courtroom was sheet metal (tin) with a pattern of ridges arranged in rectangular shapes. central heating was provided by hot water radiators. in , an addition was constructed on the south side at the rear of the original courthouse, making an l-shaped building. in this process the clerk's office which was built in was torn down. harmony of scale, materials and style were maintained between the old and new sections.[ ] [illustration: the old court room prior to restoration. photo by lee hubbard, .] twenty years later, in - , the courthouse again was expanded by addition of a center block, and another wing identical with the original and first addition segments. at the rear (west side) of these new portions, two wings were added to house, respectively, the records of the clerk's office and a new, larger jail. with the completion of this construction, the old courtroom in the original wing of the building ceased to be used regularly for judicial business. two large courtrooms and several smaller chambers in the center block of the building provided facilities for hearing cases. the new and larger building also provided space for the offices of the county's elected officials and most of the major boards, commissions and administrative departments which comprised the county's government in the 's.[ ] in both exterior and interior appearance, the courthouse additions of and were designed to harmonize with the original style james wren established in . the use of brick, gable-end roof lines, proportioning of the scale of various segments of the building, compatible fenestration and colonial period styles in hardware and painting all contributed to this result. most influential of all in maintaining this architectural integrity, perhaps, was the use of archways and open arcades at the entrances to the center block and two wings. these open arcades, with their simple, undecorated keystone arches are the distinguishing features of the fairfax county courthouse in the 's as they were in . [illustration: the central entrance to the addition to the courthouse.] notes-- . the court house [ ] william o'neal, _architecture in virginia_, (new york: walker, ), p. , remarks that "traditionally, in virginia buildings housing civil government have been developed beyond the utilitarian. this tradition, of course, has given us not only a remarkable group of eighteenth and nineteenth century courthouses, but, just yesterday, the very beautiful city hall complex of norfolk by vincent king." [ ] _university of virginia newsletter_, (charlottesville: institute of government, university of virginia), xliii, no. , (july , ). [ ] a summary of these references is contained in melvin steadman, _falls church by fence and fireside_, (falls church, va.: falls church public library, ), pp. - . [ ] o'neal, _virginia architecture_, pp. , , , _minutes of the vestry, truro parish, virginia_, - , (lorton, va.: pohick church, ), p. . [ ] steadman, _falls church_, p. . [ ] the genealogy and a summary history of the wren family, both in england and america, is in steadman, _falls church_, pp. - . [ ] janice artemel, "james wren, gentleman joiner," (unpublished manuscript, falls church, va., ). [ ] according to sir banister fletcher, _a history of architecture_, rev. ed., (new york: scribners, ), p. , "in general, the architecture of a particular area mirrored that of the homeland of the colonizers or settlers of that area, with modifications occasioned by climate, the types of building material obtainable, and the quality of labour available. thus, in seventeenth century new england building followed the pattern of english weather-boarded heavy timber-frame prototypes, while in eighteenth century virginia we find a 'georgian' architecture often almost indistinguishable from that of eighteenth century england." [ ] carl feiss, "court houses of virginia," lecture delivered at the meeting of the latrobe (washington) chapter, society of architectural historians, held at the arts club of washington, november , . [ ] marcus whiffen, "the early courthouses of virginia," _journal of the society of architectural historians_, xviii, no. (march ), pp. , - . [ ] thus the term "market hall" is sometimes also used to designate these buildings. at times, the market activities may even overshadow the building's associations with government, as in the case of blandford, dorset, where a sign on the building identifies it as the corn exchange, without mention of the council's chamber. [ ] sir kenneth clark, in his book, _civilisation_. (new york: harper & row, ), pp. - , describes the impact of dutch accomplishments in the arts, and the impact of their influence on such englishmen as christopher wren. the adoption of the dutch style of market hall in england may well have been a gradual one, utilizing the already familiar design of the house of a typical town tradesman, which presented to the street a series of arched openings where work was done and wares were displayed during the day. at night these arches were shuttered, and the tradesman had his living quarters on the second floor over his shop. sir banister fletcher, _a history of architecture_, (new york: scribners, ), p. . [ ] whiffen, "early courthouses," p. . [ ] william o'neal, _architecture in virginia_, (new york: walker, ), pp. - . [ ] whiffen, "early courthouses," p. . [ ] fairfax county court minute book, - , p. . [ ] fairfax county court minute book, - , p. . [ ] fairfax county court minute book, - , p. . [ ] examination of the courthouse attic in july revealed a bell, complete with mounting and wheel, with the following inscription: "tw & rc smith alexandria ." it has not been determined when this bell was installed in or removed from the cupola. it was rehung in the cupola and rung again in . [ ] examination of the courthouse attic in july revealed a brass chandelier with six arms, approximately inches long, fixed to a central hub. burners at the end of each arm were fitted to hold glass globes or lamp chimneys. fairfax county court minute book, - , p. . the end of the gaslight era occurred shortly after , when, according to thomas chapman, former clerk of circuit court, electric lights were installed in the clerk's office in and shortly thereafter in the courtroom. [ ] interview with thomas chapman, former clerk of circuit court. [ ] fairfax county board of supervisors minute books, no. , p. , november , ; no. , pp. - , november , , pp. - , may , . . restoration of the original wing of the courthouse, _origin of the restoration project._ after the second addition to the courthouse was completed in , the old courtroom in the original wing of the building ceased to be the focal point of the court's activity. similarly, it ceased to receive the attention needed to deal with the natural deterioration produced by use and the passage of time. by the early 's these effects were evidenced by leaking roofs, unreliable plumbing in the heating system, cracked and crumbling plaster, loosened floors and hardware, and the like. in order to retain its usefulness, the original wing of the courthouse needed substantial renovation. at this time, an interest in the old courtroom was expressed by the fairfax county bar association and the county's newly formed historical landmarks preservation commission which together proposed that the work of renovation be done in such a way as to restore the original appearance of the courtroom. the bar association formed a special committee for restoration of the old court room under the chairmanship of c. douglas adams, jr., and the assistance of the board of supervisors was sought.[ ] in december , the board appropriated funds for developing a restoration plan. walter macomber, a local restoration architect who had done similar work on a number of early virginia landmarks, was retained to prepare the necessary plans. in march , the bar association's committee reported the completion of this preliminary work to the board, and successfully secured the latter's approval together with an appropriation of $ , for actual construction work. this work was commenced without further delay and was completed in the spring of .[ ] _problems of the restoration._ while the work undertaken in and was at the time referred to as a restoration, it was in fact impossible under the circumstances to reproduce with complete accuracy the appearance of the courthouse in . no descriptions of the courtroom or other records of building specifications had been found; nor was any special research in eighteenth century sources undertaken for this purpose. as a result, the work produced a courtroom with idealized colonial-period interior design and furnishings in a building shell with reconstructed floor plan and structural design of the early federal-period (during which it had initially been built). numerous difficult problems were faced in this reconstruction, and, for the most part, they were resolved in ways that served primarily to create a room with the atmosphere of virginia's colonial period, and secondarily to build an authentic replica of the fairfax courthouse as of any particular historical date. [illustration: floor plans.] an initial problem connected with the exterior alterations was that of securing bricks and mortar to match those of the original courthouse. bricks secured from a manufacturer of specialty bricks turned out to be a close match for the originals which were thought to have been fired from clay dug in fairfax county.[ ] specially mixed mortar made from sand, lime and white cement also closely simulated the color and texture of the older mortar. bricks were laid in flemish bond which matched the courthouse and part of the old jail building. using these new materials, broken and crumbling bricks were replaced throughout the building, and the three long windows on both the north and south sides of the courthouse were altered to form two rows of smaller windows, with the space between the first and second-floor rows filled with new brickwork. this change in the fenestration restored the building to its appearance as shown in civil war photographs of the courthouse. shutters similar to those shown in the same pictures were added to the windows on both floors. on the roof, some repairs were needed to restore the slate shingles. in the cupola, wooden louvres were repaired, the cupola was painted, and a weathervane restored to the top. an existing galvanized sheet metal roof was allowed to remain unchanged. for the inside of the building there were no photographs or drawings of the earlier periods, and reconstruction was influenced largely by physical evidence disclosed as the interior was systematically dismantled down to the building's outer shell. when woodwork, hardware, plaster and flooring were removed, it was found that much of the framing timber was infested by termites, and had to be replaced. in this process numerous signs of earlier workmanship were revealed. beneath the existing tin-plate ceiling was a plastered ceiling and remnants of a painted frieze of red, yellow, blue and green. behind this ceiling were laths laid over hand-hewn oak rafters. a few of the original hand-split laths and hand-made nails remained in this ceiling. in its reconstruction, the ceiling was furred and replastered without any decoration. no lathwork was found on the side walls, and in the reconstruction fresh plaster was applied directly to the bricks.[ ] [illustration: interior of the gutted courthouse during restoration in . photo by lee hubbard.] the flooring which was removed from the central section of the courtroom sloped from the back (east end) of the room toward the judge's bench (at the west end). beneath this floor was an older floor of brick. it was not determined whether this brick work had been the original floor of the courtroom or whether another wooden floor had overlaid it prior to the one just removed. in its reconstruction, however, the architect specified that a flat floor of polished pine should be laid over the bricks.[ ] in one part of the main floor the older brick work was allowed to remain exposed. this was in the vicinity of the fireplaces in the two corners of the open area at the rear (east end) of the courtroom. these two fireplaces were reopened and restored and their brickwork was extended to form spacious hearthstones. the corner fireplaces showed signs of a three-stage evolution. they were originally used as open fireplaces. holes in the brickwork above them suggested, however, that at some later time the open fireplaces were replaced by wood-burning or coal-burning stoves standing on the brick hearths with their stovepipes fitted into the chimneys. finally, when the stoves were replaced by central heating and hot water radiators, the entire fireplace wall was sealed with brick and plastered over. in their restoration the corner fireplaces were reopened and refurbished as they were thought to have appeared in their original condition. as the side walls were cleared of plaster, they showed signs of staircases from the ground level the balcony along the north as well as the south side of the courtroom. thus when the stairs along the south wall were replaced, a similar set of stairs was built and installed on the north side of the courtroom. no dates for the original installation or removal of these staircases were determined, and it was presumed that the dual staircases were part of the original design of the courthouse. a more difficult puzzle was presented by a series of holes in the outer wall aligned at the level of the balcony and about the size used for beams. speculation by the architect suggested that these holes might have been intended for use in extending the balcony along three sides of the courtroom instead of merely along the back end, or in covering the entire room and creating a full second story for the courthouse. no determination of their use was made, and they were disregarded in the reconstruction of the courtroom. [illustration: interior of restored courtroom facing the judges' bench. photo by charles baptie, .] [illustration: interior of restored courtroom facing balcony. photo by lee hubbard, .] still another mystery which was not solved in the restoration concerned the two chimneys located in the corners at the west end of the old courtroom. no fireplaces or hearthstones were found in the courtroom floor, and when the interior was dismantled it was discovered that the chimneys rested on beams above the courtroom ceiling. these chimneys were not utilized in reconstructing the courtroom, and the only suggestion offered was that they probably had been connected by long pipes to stoves in the room below.[ ] two doors in the west wall of the courtroom on either side of the judge's bench presented a further problem since they were not part of the original building, but had been part of the addition built in . one of these doors led into a set of judge's chambers and the other (in one corner) opened into a corridor leading to the main portion of the addition running south from the old courthouse. in the restoration these doors were retained, but fitted inconspicuously into the panelling behind the judge's bench. above the doors, the architect restored two windows which he felt had been part of the original building.[ ] restoration of the judge's bench brought still more difficulties to maintaining the original design of the courtroom. as plaster was removed from the wall behind the judge's bench, the bricks showed marks of an arch. the judge's bench which ultimately was constructed and installed at the west end of the courtroom was, like the other woodwork, created by the architect "according to patterns used in colonial times."[ ] other details of the interior were handled the same way. hardware used by the architect was all new, but used old designs. since the original colors used in the interior were not determined, the architect used white and gray shades of paint similar to those in colonial buildings. from the ceiling in the center of the courtroom were hung chandeliers found in the courthouse attic. while not of "colonial" design, they were used because they were considered appropriate due to former association with the courthouse. and, as noted earlier, the pews which possibly had been obtained from the jerusalem baptist church were retained in the restored courtroom.[ ] _general setting and building site._ the original fairfax county courthouse today comprises the north end section of the courthouse building. together with its immediately adjacent grounds, the present courthouse complex occupies almost the entire four-acre tract which was the original site. this tract still forms a square near the center of the city of fairfax, at the intersections of two main roads, routes (little river turnpike) and (chain bridge road). the general setting is gently rolling terrain, and the courthouse site is on a slightly higher elevation than the surrounding area, with stone retaining walls on the two sides facing the turnpike and road. on the west side of the courthouse building is a parking lot occupying approximately two acres. the twelve-story county office building (massey building) completed in is located approximately yards south and west of the courthouse. _the exterior_ _overall dimensions._ the restored, original courthouse building is a plain rectangle, feet long by feet wide. it is oriented with the long sides facing north and south, with the main entrance at the east end of the building. a portico extends across the entire east end of the building, covering an area by feet. the height of the building at the gable ends is feet; and the height of the eaves from the ground is feet. _foundations._ as originally built, the courthouse rested on brick foundation walls, anchored at the corners in brick piers, with a crawl space of approximately - / to feet in height beneath all but the front (east) quarter of the floor space. additional brick bases, approximately inches square and resting on the ground, were located in the crawl space beneath the two columns supporting the courthouse balcony. in the late nineteenth century, a partial basement was dug beneath the central section of the courtroom.[ ] as reconstructed, the exterior foundation walls were pointed up and repaired, and were strengthened by the addition of several new footings. across the back (west end) of the building, the crawl space was deepened to a uniform feet, and four Ã� inch brick piers were placed on concrete footings. in the center section of the courthouse, the basement walls were extended foot to carry the joists of the new floor, the outside entrance was closed up, and a new staircase for the interior entrance was built at the south end of the basement. next to the basement toward the front (east end) of the building, another crawl space (measuring - / Ã� - / feet) was deepened to a uniform feet, and a new wall was built on the east side, extending the full width of the building. this new wall was inches thick, and constructed of cinder block and brick, anchored with Ã� Ã� inch concrete footings. beneath both crawl spaces and the basement a -inch thick concrete slab was laid. the crawl space did not extend to the front exterior wall of the building. a space of Ã� feet across the front of the building, consisting of the area beneath the open entrance foyer of the courtroom, originally had been covered only by a layer of bricks resting on the bare ground. as reconstructed, this brick was taken up and re-laid on a -inch thick slab of concrete which had been poured on a base of inches of crushed stone covered by polyethylene film. _walls._ the exterior walls of the courthouse are constructed of red brick, with new bricks specially selected during the restoration to match the remaining original materials, and laid in flemish bond, - / feet thick. across the front of the building, the portico is entered through a series of arches supporting the second-floor front section of the building. the three arches across the front of the building are feet wide and feet high at the center of the arch. the arches at the north and south ends of the portico are - / feet wide by feet high. the brick columns supporting the arches are - / feet square. the arches and columns are plain except for white marble keystones and white marble slabs, inches thick, placed at the foot of each arch and serving as bases for the columns. _chimneys._ all five of the chimneys which the courthouse had in the early nineteenth century were retained in the reconstruction. the two chimneys on each of the north and south sides stand at points which correspond to the four corners of the courtroom, and rise - / feet above the roofline at the eaves. in the center of the table end at the front of the building, the fifth chimney stands, extending feet above the ridge of the roof. all five chimneys are corbelled with two courses of brick at the top, and with a single course of brick - / feet below the chimney top. all of the chimneys measure feet by foot inches. _doors and windows._ in the reconstruction of the courthouse, the fenestration was changed to resemble the appearance of the building in about . accordingly the three tall ( - / foot) existing windows on the north and south sides of the building were converted into two sets of smaller windows, one above the other, and regularly spaced along the sides of the courtroom. in the upper row, a fourth window was located over the arch in the portico, and serves the rooms in the second-floor chamber at the front of the building. the chamber also has two windows on the front of the building. the upper row windows are of a double-hung sash design, with over panes ( inches Ã� - / inches) set in wooden frames and sills. overall dimensions of these windows are Ã� - / feet. the three windows on the lower level are slightly larger-- feet Ã� feet inches, and have over panes. both rows of windows are shuttered; those of the upper row are louvred, and those in the lower row have solid panels.[ ] on the ground level at the front of the building, the main doorway of the courthouse is located in the center of the wall, and flanked by one window on each side. the door is panelled, and - / Ã� - / feet in size. in the reconstruction, new window sashes and a new door were installed, but the existing jambs were used wherever possible. all shutters, glazing materials and hardware used in the reconstruction were new. _roof._ the original roof of the courthouse was covered with slate shingles, and the reconstruction of the building merely applied repairs to these shingles as needed. little of the slate which remained in was thought to have dated from the original construction, however, because of the extensive repairs and renovations carried out after the civil war. _cupola._ the cupola, located at the ridge of the roof, - / feet from the gable end at the front, was part of the original design of the courthouse and houses a bell once used to announce the convening of the court sessions. the cupola was constructed of white pine, and consists of a square box in which is mounted an octagonal compartment with louvred sides. topping the panelled portion of the cupola is an onion-shaped dome, culminating in a ball which, according to photographs over the years, served as a base for a weathervane or flagpole. in reconstruction, a weathervane found in the courthouse attic was installed on the cupola's top. the roofing of the cupola dome is sheet metal. _ornamentation._ the overall appearance of the courthouse is plain, and, with the possible exception of the cupola, there is only one feature which shows the intention to combine ornamentation with functionalism in the architectural design. this feature is a round "fan window" framed by a circle of bricks in the center of the gable end of the building's front wall. the lower half of this window consists of four pie-shaped wooden panels. the upper half of the window consists of louvres. _the interior_ _foyer._ the double doors in the center of the portico at the east end of the courthouse open inward into a foyer at the rear of the courtroom. this area is feet long, the full width of the building. the width of the area varies, however, because of the fireplaces across each of the front corners and the curving rear edge of the central (or spectator) portion of the courtroom. at its narrowest point in front of the double doors the foyer is feet inches wide, and at its widest points on either end of the room, it is feet wide. the foyer space is entirely open, with flooring composed of bricks ( Ã� - / inches) varying in color from deep red to charcoal gray. these bricks are laid with three-quarter inch seams and white mortar. the fireplaces in the corners at each end of the foyer have square ( foot- inch) openings, with brick lining and a inch facing surrounding the opening and painted flat black. the fireplaces are entirely framed with plain architraves and friezes, and are topped with simple mantels. each fireplace measures feet inches wide by feet inches high. along the walls of the foyer, panelled wainscotting, painted white, is installed. because of the unevenness of the floor, the height of this wainscotting varies from feet inches to feet inches. its panels are of varying width, from to inches, and are beaded. at the base of the wainscotting is a -inch baseboard. above the wainscotting, the walls and ceiling are finished in plain plaster with walls painted mauve and the ceiling white. lighting needs are minimal because of four outside windows located in the foyer, and because of light received from the central section of the courtroom. on each side of the double door and at each end of the foyer lanterns are mounted on the wall. these fixtures are of the type commonly used as carriage gate or guardhouse lanterns, and are Ã� - / Ã� inches, with glass panels on three sides set in dark metal frames. the tops are of curved metal designed to shield the lanterns from the wind. inside the lanterns, light comes from a single candle-shaped light bulb, set inside a small hurricane lamp chimney. the hardware on the double door consists of a box lock with the brass knob polished and the lock-box and keeper painted flat black. at the top and bottom of the door black metal shot bolts of designs commonly found in eighteenth century buildings are installed. _central section._ space for the seating of spectators is provided in the central section of the courtroom. the floor level of this section is raised - / inches above the floor of the foyer, and free-standing wainscotting of the same style and height as are around the foyer walls separate the foyer from the central section. the floor of this section is constructed of - / inch dark-stained pine boards. entry into this section is along two aisles at the sides, running between the spectator seats in the center of the room and the balcony staircases set against the walls on the north and south sides of the room. spectator seating is provided in five rows of benches of pine, with natural finish on the seats and back rests, white painted sides and bases, and natural cherry moldings along the top of the back rests and arms. along the base at the front of each bench, is a inch strip painted black. the back of the back rest is painted white down to a point inches above the floor, where a foot rest of dark-stained pine is installed, and below this the base is painted black. the five rows of benches in the center section are curved, generally following the arc of the edge of the raised flooring, and measure feet inches from end to end. each bench seats about twelve people. the walls of the center section are painted mauve, and the ceiling is white. there are no lighting fixtures in this section of the courtroom. at the rear of the central section, two lightly stained solid oak pillars support the balcony. _staircases._ staircases to the balcony are located along the north and south walls of the central section. the initial plans for reconstruction of the courtroom in called for only one staircase, on the south wall. the decision to add a staircase on the north side came during the reconstruction when evidence of an earlier staircase on that side was revealed as the plaster was removed. from this it was conjectured that the courthouse of the early nineteenth century had had two staircases, but that one had been abandoned in reconstructing the building after the civil war. the present stairways each have steps with inch risers and treads feet inches wide by inches deep. they form a single flight, open style stairs, with no brackets and plain balusters, inch square, painted white and supporting a cherry handrail. newel posts at the top and foot of the stairway have turned shafts with cube bases and capitals. a flat sphere of solid wood tops the capital of the newel post. beneath the staircase on the north side of the building is a closet, and on the south side is a stairway leading into the basement. the doors to this closet and stairway are made of vertical beaded boards similar to the wainscotting, each equipped with two "h" hinges of black metal having a pebble finish and black metal box locks with small polished brass doorknobs. _balcony._ the courtroom balcony contains three rows of wooden benches similar to those on the ground floor, except that they are straight instead of curved. the rows are arranged so the two rear benches are on daises raised inches above the one in front. solid-panelled free-standing wainscotting is set along the back of the rearmost bench. the first two rows of benches are feet - / inches long, while the rear bench is feet long, allowing space at each end for the steps of the raised dais. in front of these benches, across the full width of the balcony between the two staircases, is a railing of plain white spokes (matching the balusters of the staircase) and a plain cherry handrail feet inches in height. the ceiling of the balcony is painted flat white and the walls are mauve. white beaded board wainscotting standing inches high is around the sides and rear wall of the balcony similar to that on the ground level. three recessed lights provide light for the balcony. _jury room._ at the rear of the balcony an aisle feet wide runs the full width of the building, allowing passage behind the rows of balcony benches and access to the jury room through doors near each end of the aisle. the jury room uses the space above the first-floor portico, an area Ã� feet. the doors to the room are feet inches by feet inches, with panels. doors and frames are painted white, with brass doorknobs and modern locks set in the doors. the wall between the jury room and balcony is a new stud partition which is finished with white plaster, as is the ceiling. lighting is provided by recessed lights set in the ceiling and equally spaced. the walls of the room have a -inch baseboard, but no wainscotting. centered in the exterior (east) wall of the room is a fireplace, reopened in the reconstruction. this fireplace measures feet - / inches by feet - / inches, and is framed with a plain white architrave and mantel. a hearth of brick extends inches out from the fireplace. opposite the fireplace is a by inch plastered masonry pier extended up from the exterior wall at the rear of the portico on the first floor below. in the ceiling next to the pier is located a by inch opening into the attic, with a ladder built into the partition wall immediately below. _bench, bar and jury box._ across the front of the courtroom is a railing separating the judges bench, jury box, and space for counsel tables from the central section of the courtroom. this railing, similar to those of the staircases and balcony, stands feet - / inches high. gates feet wide and mounted on double spring hinges are placed in the railing at the head of each side aisle in the central section. each gate has an s-curve wooden support built into it for added support. the enclosure formed by the railing or bar is raised - / inches above the floor level of the central section, and is floored with yellow pine, tongue-and-groove, -inch wide flooring. in the center of this enclosure, against the west wall of the courtroom is the judge's bench, flanked on its right by the witness stand. the bench itself is relatively small, measuring feet inches across and feet inches from back to front. three steps on each side permit access from both directions, and have balustrades on the front side similar to the railings and other balustrades in the courtroom. on the wall behind the judge's bench, there are two, high -over- pane windows, backed by closed, full-louvred shutters. behind the shutters is the solid plaster wall of the present courthouse's main corridor. between and below these windows is a wooden raised-panel screen serving as a back for the judge's bench. two -panelled sections at each end of this screen are flanked by fluted pilasters with modified capitals supporting a plain entablature. between these sections are panels, the two on either end being composed of tiers of panels edged with fluted pilasters. the center element of this panel consists of two large raised rectangular panels topped by a semi-circular louvred wooden fan design, then a round keystone arch, the whole portion of the composition topped by a high monumental pediment. at its center point, the height of this composition is feet inches. this ornamental panelling also covers the space where doorways previously had been cut for passage between the courtroom and other portions of the courthouse as they were built from onward. prior to the reconstruction, a doorway in the west wall was located on the judge's left side as he sat on the bench. as presently reconstructed, this doorway has been closed and covered by panelling, but a new door was cut through on the judge's right-hand side, and the inside of the door is constructed and fitted so as to serve as the end piece of the ornamental woodwork behind the judge's bench. the jury box is in the southwest corner of the courtroom. across the front of the box is a panelled solid railing, standing feet inches from the floor of the west end of the courtroom. the jury box contains rows of benches, each raised an -inch step above the one in front. the front row is feet inches long, with aisles inches wide at each end allowing passage from the second row to the front, and openings in the railing. not having this function of access, the back row of the jury benches is feet inch in length. benches in the jury box are designed and constructed similar to those of the balcony. the witness box is located between the judge's bench and the jury box. this box is constructed of solid wooden screen, painted white and topped with a cherry handrail. the screen forming the back of the box is plain; the screen at the front is in the shape of half of an octagon, and the face of each element contains a single recessed panel similar to those on the front of the judge's bench. the side of the witness box facing the jury is open to allow entry into the box, and the side next to the judge's bench is formed by the side of that fixture. the flooring of the box is made of -inch wide, yellow pine boards, finished naturally, and the flooring is raised one step ( - / inches) from the courtroom floor. the dimensions of the box are feet inches across and feet inches from back to front. illumination of the area of the bench and jury box is provided by a variety of fixtures. on the wall at the rear of the jury box two carriage gate or guardhouse lanterns are attached. opposite these, on the wall at the north side of the room, two other, similar lanterns are located. in the ceiling above the area enclosed by the bar, recessed lights are installed in two rows of lights across the front and rear sections, and a pair are located equidistant between these rows. hanging from the ceiling over the central area are chandeliers which were found in the attic of the courthouse during the reconstruction, and refurbished and wired for electric lights. the lighting fixtures consist of six -inch arms, made of hollow brass tubing, extending out from a central hub. the hub, in the shape of a cup and decorated with a series of radial ridges, is on the lower end of a -inch hollow brass shaft, equipped at the top with a hook for suspension from the ceiling. as installed in the courthouse, each chandelier hangs from a fixture in the ceiling by a metal chain approximately feet long. at the end of each arm of the chandelier are plain disc-shaped bases ( inches in diameter) which holds one candle-shaped electric socket and a glass hurricane lamp chimney. _basement._ a small basement measuring feet in width lies across the center section of the courthouse. an interior entrance to this basement is provided by a staircase located at its south end. this stairway, feet inches wide with - / inch risers, has steps, and is not panelled or painted. at the present time, the basement is used to house heating and air conditioning equipment. small windows are located at both the north and south ends of the basement. approximately square, these windows measure feet inches by feet inches, with -over- panes ( by inches). both have sills composed of a single slab of stone inches thick. both also are below ground level, and open into brick-lined spaces for light and air dug out by the wall's foundations. the space for the window on the north side of the building measures feet inch by feet inches. on the south side of the building, however, the dug-out space measures feet inches by feet inches and suggests that this was, at an earlier date, the point where an outside entrance to the basement was located. this is corroborated by markings on the inside of the basement wall which show that a doorway in the north end of the basement has been bricked up, and also that a second window similar to the existing one has been closed up with bricks, leaving the sill slab in place. from the basement, galvanized steel ducts covered with insulating material are run through the crawl spaces beneath the courtroom floor to outlets and intakes for circulation of air. these openings are located in the sills of the recessed windows of the courtroom and in the bases of the benches for spectators and jurors, and are covered with steel grilles painted to blend with the fixtures in which they are set. . restoration of the original wing of the courthouse, [ ] other members of the special committee were edward d. gasson, james keith, john t. hazel, jr.; w. franklin gooding, assistant clerk of the courts; senior circuit judge paul e. brown; and bayard evans, chairman of the fairfax historical landmarks preservation commission. [ ] the cost of restoration was originally estimated at $ , , exclusive of architect's fee, which was to be per cent of the total cost. ultimately, the cost of the work was slightly in excess of $ , , including the architect's fee, according to the architect's records; fairfax county board of supervisors minute book # , pp. , , ; cost sheet, walter m. macomber. [ ] the building contractor for this work was e. l. daniels. [ ] interview with thomas chapman, former clerk of the circuit court. [ ] the frieze was disregarded because it was not considered part of the original courtroom interior, and no drawings, photographs or descriptions of it were preserved. [ ] the sloping floor which was replaced was not dated, but probably was installed when the courthouse was renovated following the civil war. [ ] on this matter the following statement in the _northern virginia sun_, january , , , is of interest: "anyone familiar with the old courthouse will have noticed that it has five chimneys. the two closest to the bench are resting on wood above the ceiling, macomber discovered. this, he said 'confused' him. he thinks that they probably were connected by long pipes to stoves in the courtroom. yet he is not sure. it appears to macomber that they were added at some later time, but he will not know until he examines them more closely during the restoration. if ... [there] are post- andirons [in these fireplaces], out they will go in the restoration." in an interview on march , , however, macomber stated he felt that these chimneys had been connected to stoves after the fireplaces which they served were blocked up. [ ] the architect expressed the opinion that the addition to the west end of the courthouse dated from about ; _northern virginia sun_, january , , . however, no documentary evidence from the county records supports this date; _fairfax county free press_, august , . [ ] transcript of interview with walter macomber, march , . as to the arch marks, mr. macomber said: "on the front wall i found a semi-circle deeply incised in the brick wall. i concluded there had been an original arched design there and i reproduced such an arch as it might have looked based on my studies of colonial architecture." [ ] transcript of interview with walter macomber, march , , contains the following: question: do you know what the original color of the room was? macomber: no. but since most of the buildings of that period were either white or light gray, i used these colors. question: was any of the original ironwork left? macomber: no. the ones installed are new but made from old designs used in the colonial period. question: where did the old chandeliers you installed in the ceiling come from? macomber: they were discovered in storage. they are not colonial, but since they were probably used at some time i thought it appropriate to use them. question: where did you get your ideas for the woodwork? macomber: i created it according to patterns used in colonial times. the benches were brought in after the civil war and had come from the payne [jerusalem] baptist church. i thought it appropriate to use them. [ ] _fairfax county free press_, august , ; the basement measured Ã� - / feet and was located across the midsection of the building. at the north end of the basement a stairway led to an outside entrance, and at the south end another stairway provided interior access. the basement was lined with -inch thick brick walls, and was divided into two rooms of approximately equal size connected by a doorway - / feet wide. [ ] prior to the reconstruction of the courthouse in , the shutters at the windows on the first floor of the front of the building were louvred in the top half and solid panel in the lower half. in the reconstruction, these shutters were replaced using shutters with solid panels. appendix a fairfax county clerks of the court - sources: frederick johnston, _memorials of old virginia clerks_; fairfax county court order books. catesby cocke - john graham - peter wagener - peter wagener, jr. - george deneale - william moss - f. d. richardson, _pro tem_ - thomas moss - alfred moss, _pro tem_ oct.-nov., s. m. ball - alfred moss - henry t. brooks (military) - w. b. gooding (military) - william m. fitzhugh (military) - f. d. richardson, _pro tem_ - d. f. dulany (military) - f. d. richardson - f. w. richardson, _pro tem_ - f. w. richardson - w. e. graham - f. w. richardson - john m. whalen - thomas p. chapman, jr. - w. franklin gooding - james e. hoofnagle - appendix b justices and judges of the fairfax county, circuit and district courts - lists compiled by e. sprouse, p. howe, v. peters, a. lewis, and n. netherton. (because of missing books and records, this listing is incomplete.) first commission for fairfax county, _ _ william fairfax john colvill richard osborne jeremiah bronaugh lewis elzey william payne thomas pearson john minor william henry terrett john gregg gerard alexander edward barry daniel jennings thomas arbuthnot (_ - _ fairfax county court order books are missing.) _ _ john minor william h. terrett daniel jennings john carlyle william ramsay charles broadwater daniel mccarty john colvill moses linton lewis ellzey william payne richard osborn george w. fairfax anthony russell joseph watkins george mason jeremiah bronaugh thomas, sixth lord fairfax chief justice stephen lewis _ _ john west lawrence washington catesby cocke _ _ fielding turner _ _ thomas colvill _ _ hugh west _ _ john west, jr. sampson turley sampson darrell james hamilton oneas campbell _ _ henry gunnell _ _ john hunter robert adam william bronaugh william payne, jr. _ _ bryan fairfax townshend dade benjamin grayson edward blackburn lee massey william adams _ _ hector ross _ _ george william fairfax william ellzey john west george mason daniel mccarty john carlyle william ramsay charles broadwater thomas colvill dead john west, junior bryan fairfax sampson dorrell sher. townshend dade quo: henry gunnell _ _ marmaduke beckwith robert adam john hunter dead richard sanford wm. payne benjamin grayson william adams edward blackburn hector ross & alexander henderson gent. george william fairfax lewis ellzey john west george mason daniel mccarty john carlyle wm. ramsay charles broadwater john west, junr bryan fairfax sampson dorrell quo: townshend dade henry gunnell wm. adams george washington & daniel french gent: _ _ george w fairfax lewis ellzey john west george mason daniel mccarty john carlyle wm. ramsey charles broadwater john west junior bryan fairfax sampson darrel townshend dade quorum henry gunnell marmaduke beckwith robert adam richard sanford wm. payne benjamin grayson dead wm. adams hector ross alexander henderson george washington daniel french & edward payne gent: _ _ john west george mason daniel mccarty john carlyle william ramsay charles broadwater john west junr bryan fairfax sampson darrell quor. henry gunnell robert adam william payne william adams hector ross alexander henderson george washington and edward payne gent. (_ - _ fairfax county court order books are missing.) _ _ john gibson george gilpin richard chichester robert mccrea charles little james hendricks josiah watson henry darne thomas lewis robert t. hooe _ _ james wren david stuart david arell charles alexander _ _ william deneale john moss _ _ george minor william herbert _ _ roger west richard conway thomas gunnell john fitzgerald william brown benjamin dulany thomas pollard james waugh john potts _ _ martin cockburn william lyles (_ - _ fairfax county court order books are missing.) _ _ thompson mason james keith, jr. _ _ francis adams john stewart alexander james coleman elisha c. dick charles eskridge john gunnell william gunnell john jackson william lane, jr. ludwell lee richard bland lee samuel love john potts, jr. richard ratcliffe william stanhope george summers william h. washington _ _ francis adams charles alexander john s. alexander charles broadwater james coleman richard conway william deneale elisha c. dick benjamin dulany charles eskridge john fitzgerald george gilpin john gunnell thomas gunnell william gunnell william herbert robert t. hooe john jackson william lane, jr. ludwell lee richard b. lee charles little samuel love daniel mccarty thompson mason george minor john moss william payne john potts, jr. richard ratcliffe william stanhope david stewart (_sic._) george summers william h. washington james waugh john west roger west james wren now dead: love, fitzgerald, t. gunnell, r. west, j. gunnell, j. s. alexander, d. mccarty now moved: ludwell lee now refuses to qualify: summers now in d. c.: gilpin, hooe, alexander, conway, herbert, potts, dick, washington now disqualified: adams _ _ augustine j. smith humphrey peake john keene james h. blake _ _ samuel adams, jr. _ _ richard coleman spencer jackson george graham _ _ present: william gunnell, jr. william payne wm. deneale augustine j. smith hancock lee humphrey peake spencer jackson absent: george summers, gentleman persons to be recommended to the governor as proper persons to be commissioned by him as justices of the peace, or added to the commission of the peace for the county: john c. hunter john c. scott daniel mccarty chichester joseph powell edward dulin james l. triplett john y. ricketts george mason _ _ present: william gunnell, jr. james waugh william lane, jr. thomson mason george summers humphrey peake george graham james l. triplett absent: james coleman william gunnell, jr. david stuart william payne william deneale thompson mason richard ratcliffe george summers augustine j. smith james waugh hancock lee humphrey peake george graham john coleman acting in _ - _ james coleman wm. lane, jr. thompson mason rich. ratcliffe john jackson augustine j. smith rich. m. scott humphrey peake rich. coleman spencer jackson john c. hunter james l. triplett john t. ricketts lawrence lewis wm. h. terrett henry gunnell, jr. alex'r waugh geo. minor geo. gunnell francis l. lee john w. ashton dan'l m. chichester geo. taylor wm. h. foote james waugh james sangster thomas moss dan'l dulany chas. g. broadwater wm. h. fitzhugh _ - _ william a. g. dade acting in _ _ rich. ratcliffe rich. m. scott lawrence lewis spencer jackson john c. hunter james l. triplett alex'r waugh geo. gunnell geo. mason augst. j. smith john w. ashton geo. taylor wm. h. foote james sangster thos. moss dan'l dulany chas. l. broadwater wm. h. fitzhugh chas. f. ford benedict m. lang eli offutt john jackson robt. ratcliffe chas. ratcliffe wm. e. beckwith john geanit mottrom ball rich. c. mason joshua hutchison sam'l summers _ - _ john scott acting between _ - _ geo. millan silas burke rich. h. cockerille rich. c. mason dennis johnston john d. bell john gunnell frederick carper spencer m. ball edward sangster james millan thomas nevett john h. halley wm. ball john millan geo. mason john b. hunter henry fairfax wm. h. alexander frederick a. hunter wm. a. chichester alfred moss chas. c. stuart james hunter benj. f. rose james cloud fred. m. ford wm. r. selectman nelson conrad w. w. ball jno. powell jno. a. washington wm. h. wren _ - _ john scott john w. tyler _ - _ silas burke william ball wm. r. selectman w. w. ball john millan nelson conrad william h. wrenn james hunter ira williams thomas suddath george h. padgett james m. benton john r. dale thos. a. davis s. t. stuart levi burke james fox robert m. whaley abner brush john cowling f. w. flood francis e. johnston john w. hickey r. c. mason r. mcc. throckmorton w. w. elzey willis b. mccormick william barker f. m. ford francis c. davis john w. hickey spencer jackson john n. taylor john b. farr j. c. gunnell john r. grigsby _ - _ john c. gunnell tenley s. swink richard l. nevitt daniel kincheloe francis c. davis richard johnson w. b. mccormick f. c. davis ira williams francis e. johnston geo. h. padgett george burke john burke john dole john a. washington alfred leigh francis c. davis james hunter w. b. mccormick william l. lee wm. w. ellzey john cowling benjamin f. shreve william s. seitz james p. machen george padgett james simpson ---- mann w. w. ball richard johnston b. d. utterback f. m. ford cyrus hickey a. s. mckenzie r. c. mason henry jenkins _ - _ thomas p. brown james h. rice wm. terry andrew sagar herain cockrill samuel pullman reuben ives daniel w. lewis e. e. mason levi dening harry bready william a. ferguson william walters william t. rumsey talmadege thorne courtland lukens metrah makely john b. troth george b. ives josiah b. bowman job hawxhurst george f. m. walters j. w. barcroft george w. millan cyrus hickey james c. dentz b. d. utterback thomas e. carper _ _ john powell lewis george francis davis _ _ t. wm. barcroft w. b. bowman thomas e. carper francis c. davis james c. dentz m. e. fora wm. e. ford john b. troth job hawxhurst george b. ives richard johnson william lee alfred leigh courtland lukens metrah makely e. e. mason samuel pullman james h. rice w. t. rice jonathan roberts silas simpson daniel sims cyrus stickey b. d. utterback wm. f. mcwalters _ _ t. wm. barcroft w. b. bowman thomas c. carper n. p. dennison francis c. davis james c. dentz wm. e. ford john b. troth job hawxhurst richard johnson george b. ives alfred leigh courtland lukens metrah makely e. e. mason sam pullman w. t. rice silas simpson daniel w. sims cyrus stickey r. d. utterback geo. f. m. walters _ _ t. wm. barcroft w. b. bowman jacob brooks carter burton john l. detwiler wm. e. ford john b. troth george b. ives job hawxhurst richard johnson alfred leigh daniel w. m. lewis courtland lukens e. e. mason samuel pullman james h. rice t. w. rice samuel shaw silas simpson d. sims cyrus stickey b. d. utterback e. w. wakefield wm. walters _ _ t. wm. barcroft w. b. bowman jacob brooks carter burton george b. ives job hawxhurst courtland lukens samuel pullman e. w. wakefield geo. f. w. walters _ - _ richard h. cockerille _ - _ james sangster _ - _ d. m. chichester _ - _ james m. love _virginia circuit court judges_ john m. tyler, - no record of a court held, - edward k. snead, - henry w. thomas, - w. willoughby, june lysander hill, november james keith, - c. e. nicol, - louis c. barely, j. b. t. thornton, - samuel g. brent, - howard w. smith, - walter t. mccarthy, - paul e. brown, - arthur w. sinclair, - harry l. carrico, - calvin van dyck, - albert v. bryan, jr., - barnard f. jennings, - james keith, - william g. plummer, - lewis d. morris, - percy thornton, jr., - burch millsap, - james c. cacheris, - thomas j. middleton, - richard j. jamborsky, - _county general district court_ robert fitzgerald, - john corboy, - john a. rothrock, jr., - j. mason grove, - martin e. morris, - donald c. crounse, - robert m. hurst, - lewis hall griffith, - g. william hammer, - _juvenile court judges_ frank l. deierhoi, - richard j. jamborsky, - philip n. brophy, - arnold b. kassabian, - raymond o. kellam, - appendix c portraits in the old courthouse _james roberdeau allison_, ( - ), was born in orange county, virginia, grew up in centreville and taught school in fairfax and loudoun counties. he served the county as deputy treasurer, deputy sheriff and then was elected sheriff in . consistently re-elected, he was sheriff until his death. _paul e. brown_, ( - ), was born in oklahoma, and moved to fairfax county with his family in . he served as commonwealth attorney for three terms and was appointed judge of the fairfax county circuit court in . he served as senior court judge from until his death. _daniel mccarty chichester_, ( - ), was born in fairfax county, served in the confederate army and later taught school in maryland and tennessee. he practiced law and was for a short time superintendent of schools and a delegate to the state legislature. he was elected judge of fairfax and alexandria (arlington) counties in and served until his death. _bryan fairfax_, ( - ), was born in westmoreland county, virginia and grew up at belvoir, in fairfax county. he was a justice of the fairfax county court and was ordained as an episcopal minister, serving as rector of fairfax parish - . he held the title of eighth lord fairfax, baron of cameron, from until his death. _thomas, sixth lord fairfax, baron of cameron_, ( - ) was born at leeds castle in kent, england and immigrated to fairfax county in . in , he was commissioned a justice of the peace in each county within the entire northern neck, of which he was proprietor. he was a trustee of the town of alexandria and in became commandant of the frontier militia. he lived at belvoir until , when he moved to "greenway court," his estate in the shenandoah valley where he spent the remainder of his life. _c. vernon ford_, ( - ), was born in the town of fairfax, and practiced law with his cousin, joseph e. willard. ford was appointed commonwealth's attorney for fairfax county in and, later elected, served in this capacity until his death. _william edwin graham_, ( - ), was born in fairfax county. he succeeded his father as clerk of the circuit court in , serving until , at which time he became deputy clerk under f. w. richardson, serving in this position until his death. _george johnston_, ( - ), was a son of dr. james johnston, who settled in maryland in the seventeenth century. he was a trustee of alexandria and practiced law there and in winchester. he represented fairfax county in the house of burgesses from until his death and was the author of certain resolutions presented by patrick henry in , in opposition to the stamp act. _walter jones_, ( - ), was born in northumberland county, virginia and practiced law in fairfax and loudoun counties. appointed u. s. attorney for the district of columbia, - , he practiced law before the u. s. supreme court and in virginia and maryland. he was one of the founders of the american colonization society. at the time of his death, he was major-general of the militia of the district of columbia. _william henry fitzhugh lee_, ( - ), was born at "arlington." he rose to the rank of major-general of cavalry in the confederate army. after the civil war, he was elected a state senator and then a congressman. he died at "ravensworth" in fairfax county while serving his second term in congress. _george mason_, ( - ), the fourth of that name in the virginia colony was born on dogue's neck, now mason neck, then in stafford county, but now in fairfax county. he was a justice of the county for most of his adult life, and a trustee of the town of alexandria. he built his home, "gunston hall" in . in , he was the principal author of the fairfax resolves, and in , the principal writer of the virginia constitution and declaration of rights. the first ten amendments of the constitution were added, in part, because of his insistence on the necessity for a federal bill of rights. _robert walton moore_, ( - ), was born in the town of fairfax, and practiced law in the county. he served as a state senator and as a congressman. in he was appointed an assistant secretary of state, and in , he became counselor of the department of state. throughout his adult life he was a member of numerous boards and commissions including the boards of visitors of the university of virginia and the college of william and mary. _ferdinand dawson richardson_, (---- - ), entered the clerk's office in under william moss, clerk, and served as an assistant clerk or deputy clerk until , when he was appointed clerk of the court, which position he held until his death. _frederick wilmer richardson_, ( - ), was born in fairfax, and was the son of f. d. richardson. he was deputy clerk under his father for nine years, succeeding him in . elected to the new position of clerk of the circuit court in , he served in that capacity until , and again from to . _henry wirt thomas_, ( - ), was born in loudoun county, virginia. he served as commonwealth's attorney in fairfax and was elected to the state legislature for a number of terms between and . following the civil war, he was appointed judge of the ninth circuit court of virginia and later appointed lieutenant governor to fill out an unexpired term. _john webb tyler_, ( - ), served fairfax county as a judge in the circuit court of virginia from - . the circuit included fairfax, prince william, loudoun and fauquier counties and the quarterly courts were held at the county seats, including fairfax court house. _george washington_, ( - ), was born in westmoreland county, virginia, and moved to "mount vernon" in fairfax county when he was sixteen. he became a surveyor, was elected a burgess, and appointed a justice of the fairfax county court. during the american revolution, he was appointed commander-in-chief of the armed forces of the united colonies. he was elected the first president of the united states of america under the new constitution in , and again in . _joseph edward willard_, ( - ), was born in washington, d. c. he practiced law, and was lieutenant governor of virginia, - . president woodrow wilson appointed him minister to spain in ; later he was elevated to ambassador to spain. he owned the willard hotel in washington, but lived part of his life in the town of fairfax, at "layton hall." appendix d clerk's office excerpt from the _alexandria gazette and virginia advertiser_ july , . notice to builders--sealed proposals will be received by the undersigned, commissioners, until saturday, the th day of july next, at o'clock m, for taking down the present clerk's office of the circuit court of fairfax county, and rebuilding it on the same ground, with the materials and of the size and description, following, to wit: the foundation wall to be feet below the surface, and inches thick, of good stone, laid in mortar--the walls above the ground to be laid on the stone foundation, of brick, fourteen inches thick, and laid in good mortar,--the building to be feet long by feet wide including the walls, two stories high, and of the height of the present building, with a passage of entry feet wide, adjoining the county court office; the passage wall also resting on a stone foundation and running from bottom to top--doors at each end of the entry, and one door to each of the rooms--each room to have four windows, twenty lights and Ã� glass. the outer doors and window frames to be of cast iron, with stone sills, and the doors and window shutters to be covered with sheet iron, so as to be fire proof. the joists to be Ã� inches, inches apart on the lowest floor, resting upon a girder Ã� inches; on the upper, without a girder, but properly braced, and the flooring of the rooms to be of the best north carolina boards, planed, tongued and grooved, and one and a quarter inches thick. the entry floor of best flagging brick, and the stairway of stone. the roofing to be of slate, of good quality, and the rafters to be substantially framed, and suitable for slate roof. to each of the rooms there is to be a fireplace. the woodwork is to be of the best material and workmanship, and corresponding with the other work. the house is to be guttered, and the iron, wood, and guttering to have two coats of paint on it. each door to be provided with suitable locks, the house walls plastered, and the whole completed on or before the last day of january , at which time the work if approved by the commissioners, and also by the court, will be paid for. the proposals will state what the entire work will be done for, including the furnishing of all materials and labor, and, also, including the taking down of the old building and the use of such of the old materials as can be used for rebuilding; also for what the work will be done without regard to the old building, either in taking down or the use of old materials. notice to the successful bidder will be given within five days after opening the bids, and bond with security required from the person to whom the contract may be awarded, but the commissioners reserve the right to reject all. for further information, apply to either of the undersigned at fairfax court house. . newman burke ) geo. w. hunter, jr. ) comm'rs alfred moss ) appendix e courthouse restoration schedule of work to be performed in the reconstruction of the fairfax county courthouse, the following list comprises the schedule of work to be performed in the reconstruction of the fairfax county courthouse as set forth in the drawings prepared by walter m. macomber, architect for the project, in december : _demolition_--remove main floor, subfloor and joists, taking care to leave two columns supporting balcony, and beams beneath floor untouched. remove all material in such a manner as to be re-usable if suitable. remove all woodwork within building: wainscot, railings, bench, window & door casing, etc. remove all frame partitions. remove cantilevered forward section of balcony back to existing beam, including stair. remove existing segmental-top two-storey windows at sides of building. remove sash only from existing small windows, unless jambs are rotted or otherwise found unsuitable for re-use. carefully remove all finished flooring in balcony and porch chamber, taking care not to damage subfloor. all heating pipes shall be removed and temporarily capped off below the first floor. all electrical wiring shall be removed and recapped below the first floor level except such as shall be needed for power tools, etc. contractor shall carefully remove all existing monuments and plaques within building, securely store them, and reset them upon completion at direction of architect. _materials_--all new joists and studs shall be of construction grade fir, free of all parasites & decay, having a moisture content no greater than %. all new subfloor to be / " plyscord. apply sisalcraft paper between subfloor and finished floor. all flooring shall be / " Ã� - / " tongue and groove clear southern long leaf yellow pine, with relieved back & face edges slightly eased. the use of resawn used mill framing obtained from demolition companies is recommended in order to obtain straight grain. architect must be submitted samples of flooring for his approval before use. no pieces shorter than eight feet will be used, except where necessary at juncture of floor & wall. all stair treads shall be of ' " thick clear yellow pine, bull-nosed. all interior woodwork to be of clear western white pine, s s, of thickness as shown on plans. wainscot shall be of / ' thick by - / ", - / " & - / " clear white pine, tongue & grooved, with a / " bead on one face edge. doors, windows (sash & jamb) & balusters will be of clear western white pine. front door jamb shall be of - / th. clear yellow pine. interior jambs of - / " th. cl. yellow pine. pew material to be of - / " clear yellow pine, s s. rails to be birch for staining. moisture content for all to be no greater than %. _foundation work_--point up all existing foundations, piers, footings, etc. in basement and crawl space. replace all supporting beams rotted or otherwise unsuitable for re-use. excavate existing crawl space to a minimum of three feet below joists, and cover with - / - " thick broom finished concrete slab, on mil polyethylene film. move existing basement stair to location on plan, and floor-over opening thus made to top of stairs. _masonry_--carefully remove several sample face bricks from existing sidewalls, clean all but weather-face, and submit to locher brick co., glasgow, va. for duplication. remove segmental arches above two storey window openings, and extend window openings to same height as those of porch chamber windows. using existing downstairs window sills, brick-in two rough openings required by new windows. set steel lintels as called for on plan, and brick between vertical window openings. take care that the new brickwork appears continuous with existing masonry & is properly toothed & bonded. architect shall approve colour of mortar and duplicated brick before setting in place. repoint or rebuild existing chimneys & fireplaces. build new hearths of duplicated brick for downstairs fireplaces. repoint all existing brickwork, interior & exterior, as may be requisite. _weatherstripping_--all double-hung windows shall be weatherstripped with "chamberlain" no. -a zinc heavy-duty, full-sash units, with protection at head, meeting rail & sill. front entrance door shall have spring bronze weatherstripping all around, except at sill which is to receive "chamberlain" no. -a narrow brass threshhold with no. bronze door hook. _insulation_--entire building to be covered with " thick batts of rock-wool or fibre-glass, combination aluminum foil insulation, applied immediately over lath between ceiling joists. _painting & decorating_--all woodwork, interior or exterior, shall be back primed with white lead before erection. all exterior woodwork to receive two coats of white lead in oil. remove loose or heavy accumulations of paint from existing woodwork before painting. all interior woodwork to receive one coat of primer, one coat half primer & half enamel & finish coat of semi-gloss enamel. plaster surfaces, when thoroughly dry, shall be washed with zinc sulphate neutralizer. first paint coat shall be wall size and primer. second coat two parts flat wall paint & one part size. finish with egg-shell wall paint. plaster cornice to receive first coat of size, second coat half size & half enamel. finish coat semi-gloss enamel. architect shall select all colours. _floor finishing_--floors shall be lightly sanded to remove stains and imperfections & to reasonably level. floors shall be stained, filled, shellaced and waxed. colour of stain shall be selected by architect. _lathing & plastering_--all interior surfaces of exterior masonry walls shall receive / " gypsum lath securely nailed to " Ã� " wood furring strips anchored to masonry. coat masonry before furring with "thoroseal" from standard dry wall products co., new eagle, penna. entire ceiling to be lathed with high-rib metal lath securely nailed directly to ceiling joists. stud partitions to receive / " gypsum lath. ceiling of porch to receive high-rib metal lath applied over existing wood ceiling. all inside corners to receive expanded metal cornerite. outside corners to receive metal corner bead. apply strips of metal lath " wide over openings in stud partitions. all plaster cornices shall be run in place and formed over heavy gauge metal lath, with moulding plaster. all surfaces to be plastered minimum / " thick (including lath) in two coats; brown & finish white. white coat to have smooth float sand finish. _glazing_--all windows to be glazed with " Ã� - / " welded glass edge or metal edged insulating glass one-half inch thick composed of two sheets of / " double strength "a" window glass with one-quarter inch air space between. all glass to be set in frames with glaziers points. back-bed w/thin coating of elastic glazing compound and putty-in smoothly. _screening_--all louvres in cupola to be back screened with fine mesh, copper screen wire. _finished hardware_--all hinges, locks, latches, shutter hardware, etc. shall be selected by the architect. allow $ . for finished hardware. list of sources _books_ black, j. b. _the reign of elizabeth, - ._ oxford: oxford university, . bruce, p. a. _institutional history of virginia in the seventeenth century._ new york: putnam, . catton, bruce. _a stillness at appomatox._ new york: cardinal giant edition, pocket books, inc., . clark, sir kenneth. _civilisation._ new york: harper & row, . cresswell, nicholas. _the journals of nicholas cresswell, - ._ pt. washington, n. y.: kennikat press, . davis, jefferson. _the rise and fall of the confederate government._ new york: yoseloff, . fairfax county board of supervisors. _industrial and historical sketch of fairfax county, virginia._ fairfax: county board of supervisors, . fairfax county chamber of commerce. _historic, progressive fairfax county in old virginia._ alexandria: newell-cole. . fennelly, catherine. _the new england village scene: ._ sturbridge: old sturbridge village, . fleming, walter l. _the sequel of appomatox._ new haven: yale university, . fletcher, sir banister. _a history of architecture._ new york: scribners, . freeman, douglas s. _george washington: a biography: young washington._ new york: scribner, . hall, wilmer, ed. _executive journals of the council of colonial virginia._ richmond: virginia state library, . harrison, fairfax. _landmarks of old prince william._ richmond: old dominion press, . reprint berryville, va.: chesapeake book co., . hiden, martha. _how justice grew: virginia counties: an abstract of their formation._ williamsburg: virginia th anniversary celebration, . _a hornbook of virginia history._ richmond: virginia state library. [ ]. kuhlman, charles. _the development of the flour-milling industry in the united states._ boston: houghton mifflin, . martin, joseph. _gazetteer of virginia and the district of columbia._ charlottesville, . mcdanel, ralph. _the virginia constitutional convention of - ._ baltimore: johns hopkins university press, . mcilwaine, h. r., ed. _journals of the house of burgesses, - ._ richmond, . _minutes of the vestry, truro parish, virginia, - ._ lorton, va.: pohick church, . moore, gay m. _seaport on the potomac._ richmond: garrett & massie, . morison, samuel e. and commager, henry s. _the growth of the american republic._ new york: oxford, . o'neal, william. _architecture in virginia._ new york: walker, . payne, lloyd. _the miller in eighteenth century virginia._ williamsburg: colonial williamsburg, . porter, albert o. _county government in virginia._ new york: columbia university press, . powell, mary g. _the history of old alexandria, virginia from july , to may , ._ richmond: william byrd press, . _programme of the virginia good roads convention._ roanoke: stone printing co. [ ]. prussing, eugene e. _the estate of george washington, deceased._ boston: little, brown, and co., . rives, william c. _history of the life and times of james madison._ boston: little, brown, . roman, alfred. _military operations of gen. beauregard._ new york: harper & bros., . rust, jeanne. _history of the town of fairfax._ washington: moore & moore, . steadman, melvin. _falls church by fence and fireside._ falls church, va.: falls church public library, . sydnor, charles. _american revolutionaries in the making._ new york: collier, . wayland, john. _history of rockingham county, virginia._ dayton, va.: ruebush-elkins, . _articles_ anderson, robert. "the administration of justice in the counties of fairfax, and alexandria and the city of alexandria." _arlington historical magazine_, ii ( ): . andrews, marshall. "a history of railroads in fairfax county." _yearbook of the historical society of fairfax county_," iii ( ): - . burke, elizabeth. "our heritage: a history of fairfax county." _yearbook of the historical society of fairfax county._ - . chapman, thomas, jr. "the secession election in fairfax county, may , ." _yearbook of the historical society of fairfax county_, iv ( ): . hyman, sidney. "empire of liberty." _with heritage so rich._ new york: random house, . "letters of george mason to zachariah johnston." _tyler's quarterly review_, v. (january .) "martha washington's will and the story of its loss and recovery by fairfax county." _yearbook of the historical society of fairfax county, virginia_, ii ( - ): - . moore, william c. "jeremiah moore: - ." _william and mary quarterly_, d ser. xiii, , . smith, governor william. "the skirmish at fairfax court house." _the fairfax county centennial commission._ vienna, virginia: . _university of virginia newsletter._ charlottesville: institute of government, university of virginia. xliii (july , ): . whiffen, marcus. "the early courthouses of virginia." _journal of the society of architectural historians._ xviii (march ): . _public records_ fairfax county board of supervisors _annual report_, . fairfax county board of supervisors minute books fairfax county court minute books fairfax county deed books fairfax county record of surveys, - . northern neck grant books virginia laws _interviews and unpublished works_ architectural drawings, - , facilities management office, county of fairfax. artemel, janice, "james wren, gentleman joiner," (unpublished manuscript) falls church, va., . chapman, thomas. fairfax county, virginia. interview, february . feiss, carl. "court houses of virginia," lecture. latrobe (washington) chapter, society of architectural historians, november . macomber, walter. fairfax, virginia. interview, march . moger, allen w. "the rebuilding of the old dominion," (unpublished doctoral dissertation) columbia university, . sprouse, edith m., ed. fairfax county abstracts: court order books - . _newspapers_ _alexandria gazette_ _columbia mirror & alexandria advertiser_ _fairfax county free press_ _fairfax herald_ _fairfax news_ _northern virginia sun_ _virginia gazette_ _washington post_ board of supervisors john f. herrity, chairman martha v. pennino, vice-chairman joseph alexander warren i. cikins alan h. magazine audrey moore james m. scott john p. shacochis marie b. travesky history commission edith m. sprouse, chairman donie rieger, vice-chairman bernard n. boston c. j. s. durham william elkjer denzil o. evans mary m. fahringer ceres gaskins john p. liberty virginia b. peters mayo s. stuntz charles cecil wall architectural review board john j. gattuso, chairman glenn ovrevik, vice-chairman thomas cagley donald c. cannon donald r. chandler donovan e. hower louis papa s. richard rio james d. webber mary m. fahringer, ex officio office of comprehensive planning theodore j. wessel, director peter t. johnson, branch chief nan netherton, historian elizabeth david, historic preservation planner donald sweig, research historian jay linard, copy editor annette thomas, copy preparation gloria matthews, designer robin pedlar, assistant [illustration: back cover photo, court papers by bernie boston, .] +--------------------------------------------------------------------+ | transcriber's note. | | | | copyright material in the original (the image on p. ) has been | | omitted from this ebook. | | | | no anchors for footnotes and are present in the text. | | | | discrepancies have been preserved between titles in the list of | | illustrations and the illustrations themselves. | | | +--------------------------------------------------------------------+ copyright (c) s. a. reilly our legal heritage king aethelbert - king george iii, a.d. - by s. a. reilly, attorney e. delaware place chicago, illinois - s.a.reilly@att.net copyright (c) preface this was written to appreciate what laws have been in existence for a long time and therefore have proven their success in maintaining a stable society. its purpose is also to see the historical context in which our legal doctrines developed. it includes the inception of the common law system, which was praised because it made law which was not handed down by an absolutist king; the origin of the jury system; the meaning of the magna carta provisions in their historical context; and the emergence of attorneys. this book is a primer. one may read it without prior knowledge of history or law, although it will be more meaningful to attorneys than to others. it can serve as an introduction on which to base further reading in english legal history. it defines terms unique to english legal history. however, the meaning of some terms in king aethelbert's code in chapter are unknown or inexact. in the table of contents, the title of each chapter denotes an important legal development in the given time period for that chapter. each chapter is divided into three sections: the times, the law, and judicial procedure. the times section sets a background and context in which to better understand the law of that period. the usual subject matter of history such as battles, wars, royal intrigues, periods of corruption, and international relations are omitted as not helping to understand the process of civilization and development of the law. standard practices are described, but there are often variations with locality. also, change did not come abruptly, but with vacillations, e.g. the change from pagan to christian belief and the change to allowance of loans for interest. the scientific revolution was accepted only slowly. there were often many attempts made for change before it actually occurred, e.g. gaining parliamentary power over the king's privileges, such as taxation. the law section describes the law governing the behavior and conduct of the populace. it includes law of that time which is the same, similar, or a building block to the law of today. in earlier times this is both statutory law and the common law of the courts. the magna carta, which is quoted in chapter , is the first statute of england and is listed first in the "statutes of the realm" and the "statutes at large". the law sections of chapters - mainly quote or paraphrase most of these statutes. excluded are statutes which do not help us understand the development of our law, such as statutes governing wales after its conquest and statutes on succession rights to the throne. the judicial procedure section describes the process of applying the law and trying cases, and jurisdictions. it also contains some examples of cases. for easy comparison, amounts of money expressed in pounds or marks [danish denomination] have often been converted to the smaller denominations of shillings and pence. there are twenty shillings in a pound. a mark in silver is two-thirds of a pound. shillings are abbreviated: "s." there are twelve pennies or pence in a norman shilling. pence are abbreviated "d." six shillings and two pence is denoted s. d. a scaett was a coin of silver and copper of lesser denomination than a shilling. there were no coins of the denomination of shilling during anglo-saxon times. the sources and reference books from which information was obtained are listed in a bibliography instead of being contained in tedious footnotes. there is no index to pages because the electronic text will print out its pages differently on different computers with different computer settings. instead, a word search may be done on the electronic text. dedication and acknowledgements a vassar college faculty member once dedicated her book to her students, but for whom it would have been written much earlier. this book "our legal heritage" is dedicated to the faculty of vassar college, without whom it would never have been written. much appreciation goes to professor james curtin of loyola law school for his review and comments on this book's medieval period: chapters - , and especially his comment that "i learned quite a bit about life in those days from your work." thanks go to loyola university law school professor george anastaplo for introducing me to professor curtin. much appreciation goes to professor lacey baldwin smith of northwestern university's history department for his review and comments on this book's tudor and stuart periods: chapters - , especially his comment that he learned a lot. thanks go to northwestern university law school professor steven presser for introducing me to professor smith. finally, many thanks go to fellow mensan william wedgeworth for proof-reading the entire book. table of contents chapters: . tort law as the first written law: to . oaths and perjury: - . marriage law: - . martial "law": - . criminal law and prosecution: - . common law for all freemen: - . magna carta: the first statute: - . land law: - . legislating the economy: - . equity from chancery court: - . use-trust of land: - . wills and testaments of lands and goods: - . consideration and contract law: - . welfare for the poor: - . independence of the courts: - . freedom of religion: - . habeas corpus: - . service of process instead of arrest: - . epilogue: - appendix: sovereigns of england bibliography - - - chapter - - - - the times: before a.d. - the settlement of england goes back thousands of years. at first, people hunted and gathered their food. they wore animal skins over their bodies for warmth and around their feet for protection when walking. these skins were sewn together with bone needles and threads made from animal sinews. they carried small items by hooking them onto their belts. they used bone and stone tools, e.g. for preparing skins. their uncombed hair was held by thistlethorns, animal spines, or straight bone hair pins. they wore conical hats of bound rush and lived in rush shelters. early clans, headed by kings, lived in huts on top of hills or other high places and fortified by circular or contour earth ditches and banks behind which they could gather for protection. they were probably dug with antler picks and wood spades. the people lived in rectangular huts with four wood posts supporting a roof. the walls were made of saplings, and a mixture of mud and straw. cooking was in a clay oven inside or over an open fire on the outside. water was carried in animal skins or leather pouches from springs lower on the hill up to the settlement. forests abounded with wolves, bears, deer, wild boars, and wild cattle. they could more easily be seen from the hill tops. pathways extended through this camp of huts and for many miles beyond. for wives, men married women of their clan or bought or captured other women, perhaps with the help of a best man. they carried their unwilling wives over the thresholds of their huts, which were sometimes in places kept secret from her family. the first month of marriage was called the honeymoon because the couple was given mead, a drink with fermented honey and herbs, for the first month of their marriage. a wife wore a gold wedding band on the ring finger of her left hand to show that she was married. women usually stayed at home caring for children, preparing meals, and making baskets. they also made wool felt and spun and wove wool into a coarse cloth. flax was grown and woven into a coarse linen cloth. spinning the strands into one continuous thread was done on a stick, which the woman could carry about and spin at anytime when her hands were free. the weaving was done on an upright or warp-weighted loom. people of means draped the cloth around their bodies and fastened it with a metal brooch inlayed with gold, gems, and shell, which were glued on with glue that was obtained from melting animal hooves. people drank from hollowed- out animal horns, which they could carry from belts. they could tie things with rawhide strips or rope braids they made. kings drank from animal horns decorated with gold or from cups of amber, shale, or pure gold. men and women wore pendants and necklaces of colorful stones, shells, amber beads, bones, and deer teeth. they skinned and cut animals with hand-axes and knives made of flint dug up from pits and formed by hitting flakes off. the speared fish with barbed bone prongs or wrapped bait around a flint, bone, or shell fish hook. on the coast, they made bone harpoons for deep-sea fish. the flint ax was used to shape wood and bone and was just strong enough to fell a tree, although the process was very slow. the king, who was tall and strong, led his men in hunting groups to kill deer and other wild animals in the forests and to fish in the streams. some men brought their hunting dogs on leashes to follow scent trails to the animal. the men threw stones and spears with flint points at the animals. they used wood clubs to beat them, at the same time using wood shields to protect their bodies. they watched the phases of the moon and learned to predict when it would be full and give the most light for night hunting. this began the concept of a month. circles of stone like stonehenge were built with alignments to paths of the moon. if hunting groups from two clans tried to follow the same deer, there might be a fight between the clans or a blood feud. after the battle, the clan would bring back its dead and wounded. a priest officiated over a funeral for a dead man. his wife would often also go on the funeral pyre with him. the priest also officiated over sacrifices of humans, who were usually offenders found guilty of transgressions. sacrifices were usually made in time of war or pestilence, and usually before the winter made food scarce. the clan ate deer that had been cooked on a spit over a fire, and fruits and vegetables which had been gathered by the women. they drank water from springs. in the spring, food was plentiful. there were eggs of different colors in nests and many hare to eat. the goddess easter was celebrated at this time. after this hunting and gathering era, there was farming and domestication of animals such as horses, pigs, sheep, goats, chicken, and cattle. of these, the pig was the most important meat supply, being killed and salted for winter use. next in importance were the cattle. sheep were kept primarily for their wool. flocks and herds were taken to pastures. the male cattle, with wood yokes, pulled ploughs in the fields of barley and wheat. the female goat and cow provided milk, butter, and cheese. the chickens provided eggs. the hoe, spade, and grinding stone were used. thread was spun with a hand-held spindle which one hand held while the other hand alternately formed the thread from a mass and then wound it around the spindle. a coarse cloth was woven and worn as a tunic which had been cut from the cloth. kings wore tunics decorated with sheet gold. decorated pottery was made from clay and used to hold liquids and for food preparation and consumption. during the period of "lent" [from the word "lencten", which means spring], it was forbidden to eat any meat or fish. this was the season in which many animals were born and grew to maturity. wood carts with four wheels were used to transport produce and manure. horses were used for transportation of people or goods. wood dug-out boats and paddles were used to fish on rivers or on the seacoast. clans had settlements near rivers. each settlement had a meadow, for the mowing of hay, and a simple mill, with round timber huts, covered with branches or thatch or turf supported by a ring of posts. inside was a hearth with smoke going up through a hole in the roof, and a cauldron for cooking food. there was an upright loom in the darkness. the floor was swept clean. at the door were spears or bags of slingstones ready for immediate use. the king lived in the largest hut. gullies outside carried off excess water. each hut had a garden for fruit and vegetables. a goat or cow might be tied out of reach of the garden. there was a fence or hedge surrounding and protecting the garden area and dwelling. buckets and cauldrons which had originated from the mediterranean were used. querns with the top circular stone turned by hand over the bottom stone were used for grinding grain. there were ovens to dry and roast grain. grain was first eaten as a porridge or cereal. there were square wood granaries on stilts and wood racks on which to dry hay. grain was stored in concealed pits in the earth which were lined with drystone or basket work or clay and made airtight by sealing with clay or dung. old pits were converted into waste dumps, burials, or latrines. outside the fence were an acre or two of fields of wheat and barley, and sometimes oats and rye. wheat and rye were sown in the fall, and oats and barley in the spring. sowing was by men or two oxen drawing a simple scratch plough. the crops were all harvested in the summer. in this two-field system, land was held by peasants in units designed to support a single extended family. these fields were usually enclosed with a hedge to keep animals from eating the crop and to define the territory of the settlement from that of its neighbors. flax was grown and made into linen cloth. beyond the fields were pastures for cattle and sheep grazing. there was often an area for beehives. this was subsistence level farming. pottery was given symmetry when formed with use of a wheel and heated in increasingly hot kilns. from kilns used for pottery, it was noticed that lumps of gold or copper ore within would melt and assume the shape of what they had been resting on. these were the first metals, and could be beaten into various shapes, such as ornaments. then the liquid ore was poured into moulds carved out of stones to make axes and daggers, which were reheated and hammered to become strong. copper-tipped drills, chisels, punches and awls were also made. the bodies of deceased were buried far away from any village in wood coffins, except for kings, who were placed in large stone coffins after being wrapped in linen. buried with them were a few personal items, such as copper daggers, flat copper axes, and awls [small pointed tool for piercing holes in leather, wood, or other soft materials.]. the deceased was buried in a coffin with a stone on top deep in the earth to keep the spirit of the dead from coming out to haunt the living. it was learned that tin added to the copper made a stronger metal: bronze. stone hammers, and bronze and iron tools, were used to make cooking pots, weapons, breast plates, and horse bits, which were formed from moulds and/or forged by bronze smiths and blacksmiths from iron extracted from iron ore heated in bowl- shaped hearths. typically one man operated the bellows to keep the fire hot while another did the hammering. bronze was made into sickles for harvesting, razors for shaving, tweezers, straight hair pins, safety pins for clothes, armlets, neck-rings, and mirrors. weapons included bows and arrows, flint and copper daggers, bronze swords and spears, stone axes, and shields of wood with bronze mountings. the bows and arrows probably evolved from spear throwing rods. kings in body armor fought with chariots drawn by two horses. the horse harnesses had bronze fittings. the chariots had wood wheels, later with iron rims. when bronze came into use, there was a demand for its constituent parts: copper and tin, which were traded by rafts on waterways and the sea. when iron came into use, there were wrought iron axes, saws, adzes [ax with curved blade used to dress wood], files, ploughshares, harrows [set of spikes to break clods of earth on ploughed land and also to cover seed when sewn], scythes, billhooks [thick knife with hooked point used to prune shrubs], and spits for hearths. lead was mined. there was some glassmaking of beads. wrought iron bars were used as currency. hillforts now had wooden palisades on top of their banks to protect the enclosed farmsteads and villages from stock wandering off or being taken by rustlers, and from attacks by wild animals or other people. later a rampart was added from which sentries could patrol. these were supported by timber and/or stone structures. timbers were probably transported by carts or dragged by oxen. at the entrances were several openings only one of which really allowed entry. the others went between banks into dead ends and served as traps in which to kill the enemy from above. gates were of wood, some hung from hinges on posts which could be locked. later guard chambers were added, some with space for hearths and beds. sometimes further concentric circles of banks and ditches, and perhaps a second rampart, were added around these forts. they could reach to acres. the ramparts are sufficiently widely spaced to make sling-shotting out from them highly effective, but to minimize the dangers from sling-shotting from without. the additional banks and ditches could be used to create cattle corridors or to protect against spear-thrown firebrands. however, few forts had springs of water within them, indicating that attacks on them were probably expected to be short. attacks usually began with warriors bristling with weapons and blowing war trumpets shouting insults to the foe, while their kings dashed about in chariots. sometimes champions from each side fought in single combat. they took the heads of those they killed to hang from their belts or place on wood spikes at the gates. prisoners, including women and children, might become slaves. kings sometimes lived in separate palisades where they kept their horses and chariots. circles of big stones like stonehenge were rebuilt so that the sun's position with respect to the stones would indicate the day of longest sunlight and the day of shortest sunlight. between these days there was an optimum time to harvest the crops before fall, when plants dried up and leaves fell from the trees. the winter solstice, when the days began to get longer was cause for celebration. in the next season, there was an optimum time to plant seeds so they could spring up from the ground as new growth. so farming gave rise to the concept of a year. certain changes of the year were celebrated, such as easter, named for the goddess of the dawn, which occurred in the east (after lent); may day celebrating the revival of life; lammas around july, when the wheat crop was ready for harvesting; and on october the celtic eve of samhain, when the spirits of the dead came back to visit homes and demand food or else cast an evil spell on the refusing homes; and at which masked and costumed inhabitants representing the souls of the dead paraded to the outskirts of the settlements to lead the ghosts away from their homes; and at which animals and humans, who might be deemed to be possessed by spirits, were sacrificed or killed perhaps as examples, in huge bonfires [bonefires] as those assembled looked out for spirits and evil beings. there was an agricultural revolution from the two-field system in which one field was fallow to the three-field system, in which there were three large fields for the heavy and fertile land. each field was divided into long and narrow strips. each strip represented a day's work with the plough. one field had wheat, or perhaps rye, another had barley, oats, beans, or peas, and the third was fallow. it had been observed that legumes such as peas and beans restored the soil. these were rotated yearly. there was a newly invented plough that was heavy and made of wood and later had an attached iron blade. the plough had a mould-board which caught the soil stirred by the plough blade and threw it into a ridge alongside the furrow dug by the plough blade. this plough was too heavy for two oxen and was pulled by a team of about eight to ten oxen. each ox was owned by a different man as was the plough, because no one peasant could afford the complete set. each freeman was allotted certain strips in each field to bear crops. his strips were far from each other, which insured some very fertile and some only fair soil, and some land near his village dwelling and some far away. these strips he cultivated, sowed with seed, and harvested for himself and his family. after the harvest, they reverted to common ownership for grazing by pigs, sheep, and geese. as soon as haymaking was over, the meadows became common grazing land for horses, cows, and oxen. not just any inhabitant, but usually only those who owned a piece of land in the parish were entitled to graze their animals on the common land, and each owner had this right of pasture for a definite number of animals. the faster horse replaced the ox as the primary work animal. other farm implements were: coulters, which gave free passage to the plough by cutting weeds and turf, picks, spades and shovels, reaping hooks and scythes, and sledge hammers and anvils. strips of land for agriculture were added from waste land as the community grew. waste lands were moors bristling with brushwood, or gorse, heather and wanton weeds, reed-coated marshes, quaking peat-bogs, or woods grown haphazard on sand or rock. with iron axes, forests could be cleared to provide more arable land. some villages had a smith, a wheelwright, and a cooper. there were villages which had one or two market days in each week. cattle, sheep, pigs, poultry, calves, and hare were sold there. london was a town on the thames river under the protection of the celtic river god lud: lud's town. it's huts were probably built over the water, as was celtic custom. it was a port for foreign trade. near the town was ludhill. each celtic tribe in england made its own coinage. silver and bronze were first used, and then gold. the metal was put into a round form and then placed between two engraved dies, which were hit. flint workers mined with deer antler picks and ox shoulder blade shovels for flint to grind into axes, spearheads, and arrowheads. mine shafts were up to thirty feet deep and necessitated the use of chalk lamps fueled by animal fat with wicks of moss. the flint was hauled up in baskets. common men and women were now buried in tombs within memorial burial mounds of earth with stone entrances and interior chambers. a man's weapons and shield were buried with him and a woman's spindle and weaving baton, and perhaps beads or pottery with her. at times, mounds of earth would simply be covered over piles of corpses and ashes in urns. in these mass graves, some corpses had spear holes or sword cuts, indicating death by violence. the druid priests, the learned class of the celts, taught the celts to believe in reincarnation of the soul after death of one body into another body. they also threw prized possessions into lakes and rivers as sacrifices to water gods. they placed images of gods and goddesses in shrines, which were sometimes large enough to be temples. they thought of their gods as supernatural magicians. with the ability to grow food and the acquisition of land by conquest by invading groups, the population grew. there were different classes of men. the freemen were eorls [noble freemen] or ceorls [ordinary free farmers]. slaves were not free. freemen had long hair and beards. slaves' hair was shorn from their heads so that they were bald. slaves were chained and often traded. prisoners taken in battle, especially native britons taken by invading groups, became slaves. a slave who was captured or purchased was a "theow". an "esne" was a slave who worked for hire. a "weallas" was a welsh slave. criminals became slaves of the person wronged or of the king. sometimes a father pressed by need sold his children or his wife into bondage. debtors, who increased in number during famine, which occurred regularly, became slaves by giving up the freeman's sword and spear, picking up a slave's mattock [pick ax for the soils], and placing their head within a lord's or lady's hands. they were called wite- theows. the original meaning of the word lord was "loaf-giver". children with a slave parent were slaves. the slaves lived in huts around the homes of big landholders, which were made of logs and consisted on one large room or hall. an open hearth was in the middle of the earthen floor of the hall, which was strewn with rushes. there was a hole in the roof to let out the smoke. here the landholder and his men would eat meat, bread, salt, hot spiced ale, and mead while listening to minstrels sing about the heroic deeds of their ancestors. richer men drank wine. there were festivals which lasted several days, in which warriors feasted, drank, gambled, boasted, and slept where they fell. physical strength and endurance in adversity were admired traits. slaves often were used as grain grinders, ploughmen, sowers, haywards, woodwards, shepherds, goatherds, swineherds, oxherds, cowherds, dairymaids, and barnmen. slaves had no legal rights. a lord could kill his slave at will. a wrong done to a slave was regarded as done to his owner. if a person killed another man's slave, he had to compensate him with the slave's purchase price. the slave owner had to answer for the offenses of his slaves against others, as for the mischief done by his cattle. since a slave had no property, he could not be fined for crimes, but was whipped, mutilated, or killed. during famine, acorns, beans, peas, and even bark were ground down to supplement flour when grain stocks grew low. people scoured the hedgerows for herbs, roots, nettles, and wild grasses, which were usually left for the pigs. sometimes people were driven to infanticide or group suicide by jumping together off a cliff or into the water. several large kingdoms came to replace the many small ones. the people were worshipping pagan gods when st. augustine came to england in a.d. to christianize them. king aethelbert of kent [much later a county] and his wife, who had been raised christian on the continent, met him when he arrived. the king gave him land where there were ruins of an old city. augustine used stones from the ruins to build a church which was later called canterbury. he also built the first st. paul's church in london. aethelbert and his men who fought with him and ate and lived in his household [gesiths] became christian. a succession of princesses went out from kent to marry other saxon kings and convert them to christianity. augustine knew how to write, but king aethelbert did not. the king announced his laws at meetings of his people and his eorls would decide the punishments. there was a fine of s. for disregarding a command of the king. he and augustine decided to write down some of these laws, which now included the king's new law concerning the church. these laws concern personal injury, killing, theft, burglary, marriage, adultery, and inheritance. the blood feud's private revenge for killing had been replaced by payment of compensation to the dead man's kindred. one paid a man's "wergeld" [worth] to his kindred for causing his wrongful death. the wergeld [wer] of a king was an unpayable amount of about s., of an aetheling [a king-worthy man of the extended royal family] was s., of an eorl, s., of a ceorl, s., of a laet [agricultural worker in kent, which class was between free and slave], - s., and of a slave nothing. at this time a shilling could buy a cow in kent or a sheep elsewhere. if a ceorl killed an eorl, he paid three times as much as an eorl would have paid as murderer. the penalty for slander was tearing out of the tongue. if an aetheling was guilty of this offense, his tongue was worth five times that of a coerl, so he had to pay proportionately more to ransom it. the crimes of murder, treachery to one's own lord, arson, house breaking, and open theft, were punishable by death and forfeiture of all property. - the law - "these are the dooms [decrees] which king aethelberht established in the days of augustine . [theft of] the property of god and of the church [shall be compensated], twelve fold; a bishop's property, eleven fold; a priest's property, nine fold; a deacon's property, six fold; a cleric's property, three fold; church frith [breach of the peace of the church; right of sanctuary and protection given to those within its precincts], two fold [that of ordinary breach of the public peace]; m....frith [breach of the peace of a meeting place], two fold. . if the king calls his leod [his people] to him, and any one there do them evil, [let him compensate with] a twofold bot [damages for the injury], and shillings to the king. . if the king drink at any one's home, and any one there do any lyswe [evil deed], let him make twofold bot. . if a freeman steal from the king, let him repay nine fold. . if a man slay another in the king's tun [enclosed dwelling premises], let him make bot with shillings. . if any one slay a freeman, shillings to the king, as drihtin beah [payment to a lord in compensation for killing his freeman]. . if the king's ambiht smith [smith or carpenter] or laad rine [man who walks before the king or guide or escort], slay a man, let him pay a half leod geld. . [offenses against anyone or anyplace under] the king's mund byrd [protection or patronage], shillings. . if a freeman steal from a freeman, let him make threefold bot; and let the king have the wite [fine] and all the chattels [necessary to pay the fine]. (chattels was a variant of "cattle".) . if a man lie with the king's maiden [female servant], let him pay a bot of shillings. . if she be a grinding slave, let him pay a bot of shillings. the third [class of servant] shillings. . let the king's fed esl [woman who serves him food or nurse] be paid for with shillings. . if a man slay another in an eorl's tun [premises], let [him] make bot with shillings. . if a man lie with an eorl's birele [female cupbearer], let him make bot with shillings. . [offenses against a person or place under] a ceorl's mund byrd [protection], shillings. . if a man lie with a ceorl's birele [female cupbearer], let him make bot with shillings; with a slave of the second [class], scaetts; with one of the third, scaetts. . if any one be the first to invade a man's tun [premises], let him make bot with shillings; let him who follows, with shillings; after, each, a shilling. . if a man furnish weapons to another where there is a quarrel, though no injury results, let him make bot with shillings. . if a weg reaf [highway robbery] be done [with weapons furnished by another], let him [the man who provided the weapons] make bot with shillings. . if the man be slain, let him [the man who provided the weapons] make bot with shillings. . if a [free] man slay another, let him make bot with a half leod geld [wergeld for manslaughter] of shillings. . if a man slay another, at the open grave let him pay shillings, and pay the whole leod within days. . if the slayer departs from the land, let his kindred pay a half leod. . if any one bind a freeman, let him make bot with shillings. . if any one slay a ceorl's hlaf aeta [loaf or bread eater; domestic or menial servant], let him make bot with shillings. . if [anyone] slay a laet of the highest class, let him pay shillings; of the second class, let him pay shillings; of the third class, let him pay shillings. . if a freeman commit edor breach [breaking through the fenced enclosure and forcibly entering a ceorl's dwelling], let him make bot with shillings. . if any one take property from a dwelling, let him pay a three- fold bot. . if a freeman goes with hostile intent through an edor [the fence enclosing a dwelling], let him make bot with shillings. . if [in so doing] a man slay another, let him pay with his own money, and with any sound property whatever. . if a freeman lie with a freeman's wife, let him pay for it with his wer geld, and obtain another wife with his own money, and bring her to the other [man's dwelling]. . if any one thrusts through the riht ham scyld [legal means of protecting one's home], let him adequately compensate. . if there be feax fang [seizing someone by the hair], let there be sceatts for bot. . if there be an exposure of the bone, let bot be made with shillings. . if there be an injury to the bone, let bot be made with shillings. . if the outer hion [outer membrane covering the brain] be broken, let bot be made with shillings. . if it be both [outer and inner membranes covering the brain], let bot be made with shillings. . if a shoulder be lamed, let bot be made with shillings. . if an ear be struck off, let bot be made with shillings. . if the other ear hear not, let bot be made with shillings. . if an ear be pierced, let bot be made with shillings. . if an ear be mutilated, let bot be made with shillings. . if an eye be [struck] out, let bot be made with shillings. . if the mouth or an eye be injured, let bot be made with shillings. . if the nose be pierced, let bot be made with shillings. . if it be one ala, let bot be made with shillings. . if both be pierced, let bot be made with shillings. . if the nose be otherwise mutilated, for each [cut, let] bot be made with shillings. . if it be pierced, let bot be made with shillings. . let him who breaks the jaw bone pay for it with shillings. . for each of the four front teeth, shillings; for the tooth which stands next to them shillings; for that which stands next to that, shillings; and then afterwards, for each a shilling. . if the speech be injured, shillings. if the collar bone be broken, let bot be made with shillings. . let him who stabs [another] through an arm, make bot with shillings. if an arm be broken, let him make bot with shillings. . if a thumb be struck off, shillings. if a thumb nail be off, let bot be made with shillings. if the shooting [fore] finger be struck off, let bot be made with shillings. if the middle finger be struck off, let bot be made with shillings. if the gold [ring] finger be struck off, let bot be made with shillings. if the little finger be struck off, let bot be made with shillings. . for every nail, a shilling. . for the smallest disfigurement of the face, shillings; and for the greater, shillings. . if any one strike another with his fist on the nose, shillings. . if there be a bruise [on the nose], a shilling; if he receive a right hand bruise [from protecting his face with his arm], let him [the striker] pay a shilling. . if the bruise [on the arm] be black in a part not covered by the clothes, let bot be made with scaetts. . if it be covered by the clothes, let bot for each be made with scaetts. . if the belly be wounded, let bot be made with shillings; if it be pierced through, let bot be made with shillings. . if any one be gegemed [pregnant], let bot be made with shillings. . if any one be cear wund [badly wounded], let bot be made with shillings. . if any one destroy [another's] organ of generation [penis], let him pay him with leod gelds: if he pierce it through, let him make bot with shillings; if it be pierced within, let him make bot with shillings. . if a thigh be broken, let bot be made with shillings; if the man become halt [lame], then friends must arbitrate. . if a rib be broken, let bot be made with shillings. . if [the skin of] a thigh be pierced through, for each stab shillings; if [the wound be] above an inch [deep], a shilling; for two inches, ; above three, shillings. . if a sinew be wounded, let bot be made with shillings. . if a foot be cut off, let shillings be paid. . if a great toe be cut off, let shillings be paid. . for each of the other toes, let one half that for the corresponding finger be paid. . if the nail of a great toe be cut off, scaetts for bot; for each of the others, make bot with scaetts. . if a freewoman loc bore [with long hair] commit any leswe [evil deed], let her make a bot of shillings. . let maiden bot [compensation for injury to an unmarried woman] be as that of a freeman. . for [breach of] the mund [protection] of a widow of the best class, of an eorl's degree, let the bot be shillings; of the second, shillings; of the third, shillings; of the fourth, shillings. . if a man carry off a widow not under his own protection by right, let the mund be twofold. . if a man buy a maiden with cattle, let the bargain stand, if it be without fraud; but if there be fraud, let him bring her home again, and let his property be restored to him. . if she bear a live child, she shall have half the property, if the husband die first. . if she wish to go away with her children, she shall have half the property. . if the husband wish to keep them [the children], [she shall have the same portion] as one child. . if she bear no child, her paternal kindred shall have the fioh [her money and chattels] and the morgen gyfe [morning gift: a gift made to the bride by her husband on the morning following the consummation of the marriage]. . if a man carry off a maiden by force, let him pay shillings to the owner, and afterwards buy [the object of] his will from the owner. . if she be betrothed to another man in money [at a bride price], let him [who carried her off] make bot with shillings. . if she become gaengang [pregnant], shillings; and shillings to the king. . if a man lie with an esne's wife, her husband still living, let him make twofold bot. . if one esne slay another unoffending, let him pay for him at his full worth. . if an esne's eye and foot be struck out or off, let him be paid for at his full worth. . if any one bind another man's esne, let him make bot with shillings. . let [compensation for] weg reaf [highway robbery] of a theow [slave] be shillings. . if a theow steal, let him make twofold bot [twice the value of the stolen goods]." - judicial procedure - the king and his freemen would hear and decide cases of wrongful behavior such as breach of the peace. punishment would be given to the offender by the community. there were occasional meetings of "hundreds", which were households, to settle widespread disputes. the chief officer was "hundreder" or "constable". he was responsible for keeping the peace of the hundred. the druid priests decided all disputes of the celts. - - - chapter - - - - the times: - - the country was inhabited by anglo-saxons. the french called it "angleterre", which means the angle or end of the earth. it was called "angle land", which later became "england". a community was usually an extended family. its members lived a village in which a stone church was the most prominent building. they lived in one-room huts with walls and roofs made of wood, mud, and straw. hangings covered the cracks in the walls to keep the wind out. smoke from a fire in the middle of the room filtered out of cracks in the roof. grain was ground at home by rotating by hand one stone disk on another stone disk. some villages had a mill powered by the flow of water or by horses. all freeholders had the duty of watch [at night] and ward [during the day], of following the hue and cry to chase an offender, and of taking the oath of peace. these three duties were constant until . farmland surrounded the villages and was farmed by the community as a whole under the direction of a lord. there was silver, copper, iron, tin, gold, and various types of stones from remote lead mines and quarries in the nation. silver pennies replaced the smaller scaetts. freemen paid "scot" and bore "lot" according to their means for local purposes. offa, the strongest of the saxon kings, minted high-quality silver pennies. he traded woolen coats for lava grindstones with emperor charlemagne, who used a silver denarius coin. there were denarii to the solidus and soldi to the pound of silver. these denominations were taken by england as pennies to the shilling and shillings to the pound. the pound sign, an "l" with a hash mark derived from the word libra, which meant weighing scales. everyone in the village went to church on sunday and brought gifts such as grain to the priest. later, contributions in the form of money became customary, and then expected. they were called "tithes" and were spent for church repair, the clergy, and poor and needy laborers. local custom determined the amount. there was also church-scot: a payment to the clergy in lieu of the first fruits of the land. the priest was the chaplain of a landlord and his parish was coextensive with that landlord's holding and could include one to several villages. the priest and other men who helped him, lived in the church building. some churches had lead roofs and iron hinges, latches, and locks on their doors. the land underneath had been given to the church by former kings and persons who wanted the church to say prayers to help their souls go from purgatory to heaven and who also selected the first priest. the priest conducted christianized easter ceremonies in the spring and (christ's mass) ceremonies in winter in place of the pagan yuletide festivities. burning incense took the place of pagan burnt animal offerings, which were accompanied by incense to disguise the odor of burning flesh. holy water replaced haunted wells and streams. christian incantations replaced sorcerer's spells. nuns assisted priests in celebrating mass and administering the sacraments. they alone consecrated new nuns. vestry meetings were community meetings held for church purposes. the people said their prayers in english, and the priest conducted the services in english. a person joined his hands in prayer as if to offer them for binding together in submission. the church baptized babies and officiated or gave blessings at marriage ceremonies. it also said prayers for the dying, gave them funerals, and buried them. there were burial service fees, candle dues, and plough alms. a piece of stone with the dead person's name marked his grave. it was thought that putting the name on the grave would assist identification of that person for being taken to heaven. the church heard the last wish or will of the person dying concerning who he wanted to have his property. the church taught that it was not necessary to bury possessions with the deceased. the church taught boys and girls. every man carried a horn slung on his shoulder as he went about his work so that he could at once send out a warning to his fellow villagers or call them in chasing a thief or other offender. the forests were full of outlaws, so strangers who did not blow a horn to announce themselves were presumed to be fugitive offenders who could be shot on sight. an eorl could call upon the ceorl farmers for about forty days to fight off an invading group. there were several kingdoms, whose boundaries kept changing due to warfare, which was a sin according to the church. they were each governed by a king and witan of wise men who met at a witanegemot, which was usually held three times a year, mostly on great church festivals and at the end of the harvest. the king and witan chose the witan's members of bishops, eorldormen, and thegns [landholding farmers]. the king and hereditary claims played a major part in the selection of the eorldormen, who were the highest military leaders and often of the royal family. they were also chief magistrates of large jurisdictional areas of land. the witan included officers of the king's household and perhaps other of his retinue. there was little distinction then between his gesith, fighting men, guards, household companions, dependents, and servants. the king was sometimes accompanied by his wife and sons at the witanagemot. a king was selected by the witan according to his worthiness, usually from among the royal family, and could be deposed by it. the witan and king decided on laws, taxes, and transfers of land. they made determinations of war and peace and directed the army and the fleet. the king wore a crown or royal helmet. he extended certain protections by the king's peace. he could erect castles and bridges and could provide a special protection to strangers. a king had not only a wergeld to be paid to his family if he were killed, but a "cynebot" of equal amount that would be paid to his kingdom's people. a king's household had a chamberlain for the royal bedchamber, a marshall to oversee the horses and military equipment, a steward as head of household, and a cupbearer. the king had income from fines for breach of his peace; fines and forfeitures from courts dealing with criminal and civil cases; salvage from ship wrecks; treasure trove [assets hidden or buried in times of war]; treasures of the earth such as gold and silver; mines; saltworks; tolls and other dues of markets, ports, and the routes by land and by river generally; heriot from heirs of his special dependents for possession of land (usually in kind, principally in horses and weapons). he also had rights of purveyance [hospitality and maintenance when traveling]. the king had private lands, which he could dispose of by his will. he also had crown lands, which belonged to his office and could not be alienated without consent of the witan. crown lands often included palaces and their appendant farms, and burhs. it was a queen's duty to run the royal estate. also, a queen could possess, manage, and dispose of lands in her name. violent queens waged wars. kingdoms were often allied by marriage between their royal families. there were also royal marriages to royalty on the continent. the houses of the wealthy had ornamented silk hangings on the walls. some had fine white ox horn shaved so thin they were transparent for windows. brightly colored drapery, often purple, and fly nets surrounded their beds, which were covered with the fur of animals. they slept in bed clothes on pillows stuffed with straw. tables plated with silver and gems held silver candlesticks, gold and silver goblets and cups, and lamps of gold, silver, or glass. they used silver mirrors and silver writing pens. there were covered seats, benches, and footstools with the head and feet of animals at their extremities. they ate from a table covered with a cloth. servants brought in food on spits, from which they ate. food was boiled, broiled, or baked. the wealthy ate wheat bread and others ate barley bread. ale made from barley was passed around in a cup. mead made from honey was also drunk. men wore long-sleeved wool and linen garments reaching almost to the knee, around which they wore a belt tied in a knot. men often wore a gold ring on the fourth finger of the right hand. leather shoes were fastened with leather thongs around the ankle. their hair was parted in the middle and combed down each side in waving ringlets. the beard was parted in the middle of the chin, so that it ended in two points. the clergy did not wear beards. great men wore gold-embroidered clothes, gilt buckles and brooches, and drank from drinking horns mounted in silver gilt or in gold. well- to-do women wore brightly colored robes with waist bands, headbands, necklaces, gem bracelets, and rings. their long hair was in ringlets and they put rouge on their cheeks. they had beads, pins, needles, tweezers of bronze, and workboxes of bronze, some highly ornamented. they were often doing needlework. silk was affordable only by the wealthy. most families kept a pig and pork was the primary meat. there were also sheep, goats, cows, deer, hare, and fowl. fowl was obtained by fowlers who trapped them. the inland waters yielded eels, salmon, and trout. in the fall, meat was salted to preserve it for winter meals. there were orchards growing figs, nuts, grapes, almonds, pears, and apples. also produced were beans, lentils, onions, eggs, cheese, and butter. pepper and cinnamon were imported. fishing from the sea yielded herrings, sturgeon, porpoise, oysters, crabs, and other fish. sometimes a whale was driven into an inlet by a group of boats. whale skins were used to make ropes. the roads were not much more than trails. they were often so narrow that two pack horses could hardly pass each other. the pack horses each carried two bales or two baskets slung over their backs, which balanced each other. the soft soil was compacted into a deep ditch which rains, floods, and tides, if near the sea, soon turned into a river. traveling a far distance was unsafe as there were robbers on the roads. traveling strangers were distrusted. it was usual to wash one's feet in a hot tub after traveling and to dry them with a rough wool cloth. there were superstitions about the content of dreams, the events of the moon, and the flights and voices of birds were often seen as signs or omens of future events. herbal mixtures were drunk for sickness and maladies. from the witch hazel plant was made a mild alcoholic astringent, which was probably used to clean cuts and sooth abrasions. in the peaceful latter part of the s, theodore, who had been a monk in rome, was appointed archbishop and visited all the island speaking about the right rule of life and ordaining bishops to oversee the priests. each kingdom was split up into dioceses each with one bishop. thereafter, bishops were selected by the king and his witan, usually after consulting the clergy and even the people of the diocese. the bishops came to be the most permanent element of society. they had their sees in villages or rural monasteries. the bishops came to have the same wergeld as an eorldorman: s., which was the price of about oxen. a priest had the wergeld as a landholding farmer [thegn], or s. the bishops spoke latin, but the priests of the local parishes spoke english. theodore was the first archbishop whom all the english church obeyed. he taught sacred and secular literature, the books of holy writ, ecclesiastical poetry, astronomy, arithmetic, and sacred music. theodore discouraged slavery by denying christian burial to the kidnapper and forbidding the sale of children over the age of seven. a slave became entitled to two loaves a day and to his holydays. a slave was allowed to buy his or his children's freedom. in , theodore started annual national ecclesiastical assemblies, for instance for the witnessing of important actions. the bishops, some abbots, the king, and the eorldormen were usually present. from them the people learned the benefit of common national action. there were two archbishops: one of canterbury in the south and one of york in the north. they governed the bishops and could meet with them to issue canons that would be equally valid all over the land. a bishop's house contained some clerks, priests, monks, and nun and was a retreat for the weary missionary and a school for the young. the bishop had a deacon who acted as a secretary and companion in travel, and sometimes as an interpreter. ink was made from the outer husks of walnuts steeped in vinegar. the learned ecclesiastical life flourished in monastic communities, in which both monks and nuns lived. hilda, a noble's daughter, became the first nun in northumbria and abbess of one of its monasteries. there she taught justice, piety, chastity, peace, and charity. several monks taught there later became bishops. kings and princes often asked her advice. many abbesses came to run monastic communities; they were from royal families. women, especially from royal families, fled to monasteries to obtain shelter from unwanted marriage or to avoid their husbands. kings and eorldormen retired to them. danish vikings made several invasions in the s for which a danegeld tax on land was assessed on everyone every ten to twenty years. the amount was determined by the witan and was typically s. per hide of land. (a hide was probably the amount of land which could support a family or household for a year or as much land as could be tilled annually by a single plough.) it was stored in a strong box under the king's bed. king alfred the great, who had lived for awhile in rome, unified the country to defeat the invaders. he established fortifications called "burhs", usually on hill tops or other strategic locations on the borders to control the main road and river routes into his realm. the burhs were seminal towns. they were typically walled enclosures with towers and an outer ditch and mound, instead of the hedge or fence enclosure of a tun. inside were several wooden thatched huts and a couple of churches, which were lit by earthen oil lamps. the populace met at burhgemotes. the land area protected by each burh became known as a "shire", which means a share of a larger whole. the shire or local landowners were responsible for repairing the burh fortifications. there were about thirty shires. alfred gathered together fighting men who were at his disposal, which included eorldormen with their hearthbands (retinues of men each of whom had chosen to swear to fight to the death for their eorldorman, and some of whom were of high rank), the king's thegns, shire thegns (local landholding farmers, who were required to bring fighting equipment such as swords, helmets, chain mail, and horses), and ordinary freemen, i.e. ceorls (who carried food, dug fortifications, and sometimes fought). since the king was compelled to call out the whole population to arms, the distinction between the king's thegns from other landholders disappeared. some great lords organized men under them, whom they provisioned. these vassals took a personal oath to their lord "on condition that he keep me as i am willing to deserve, and fulfill all that was agreed on when i became his man, and chose his will as mine." alfred had a small navy of longships with oars to fight the viking longships. alfred divided his army into two parts so that one half of the men were fighting while the other half was at home sowing and harvesting for those fighting. thus, any small-scale independent farming was supplanted by the open-field system, cultivation of common land, more large private estates headed by a lord, and a more stratified society in which the king and important families more powerful and the peasants more curtailed. the witan became mere witnesses. many free coerls of the older days became bonded. the village community tended to become a large private estate headed by a lord. but the lord does not have the power to encroach upon the rights of common that exist within the community. in , a treaty between alfred and the vikings divided the country along the war front and made the wergeld of every free farmer, whether english or viking, s. men of higher rank were given a wergeld of / marks of pure gold. a mark was probably a viking denomination and a mark of gold was equal to nine marks of silver in later times and probably in this time. the word "earl" replaced the word "eorldormen" and the word "thegn" replaced the word "aetheling" after the danish settlement. the ironed pleats of viking clothing indicated a high status of the wearer. the vikings brought combs and the practice of regular hair-combing to england. king alfred gave land with jurisdictional powers within its boundaries such as the following: "this is the bequest which king alfred make unequivocally to shaftesbury, to the praise of god and st. mary and all the saints of god, for the benefit of my soul, namely a hundred hides as they stand with their produce and their men, and my daughter aethelgifu to the convent along with the inheritance, since she took the veil on account of bad health; and the jurisdiction to the convent, which i myself possessed, namely obstruction and attacks on a man's house and breach of protection. and the estates which i have granted to the foundation are hides at donhead and compton, hides at handley and gussage hides at tarrant, hides at iwerve and hides at fontmell. the witnesses of this are edward my son and archbishop aethelred and bishop ealhferth and bishop aethelhead and earl wulfhere and earl eadwulf and earl cuthred and abbot tunberht and milred my thegn and aethelwulf and osric and brihtulf and cyma. if anyone alters this, he shall have the curse of god and st. mary and all the saints of god forever to all eternity. amen." sons usually succeeded their fathers on the same land as shown by this lifetime lease: "bishop denewulf and the community at winchester lease to alfred for his lifetime hides of land at alresford, in accordance with the lease which bishop tunbriht had granted to his parents and which had run out, on condition that he renders every year at the autumnal equinox three pounds as rent, and church dues, and the work connected with church dues; and when the need arises, his men shall be ready both for harvesting and hunting; and after his death the property shall pass undisputed to st. peter's. these are the signatures of the councilors and of the members of the community who gave their consent, namely ..." alfred invented a graduated candle with spaces indicating one hour of burning, which could be used as a clock. he used a ventilated cow's horn to put around the top of the candle to prevent its blowing out, and then devised a wooden lantern with a horn window. he described the world as like a yolk in the middle of an egg whose shell moves around it. this agreed with the position of ptolemy claudius of alexandria, who showed the curvature of the earth from north to south by observing that the polar star was higher in the north and lower in the south. that it was curved from east to west followed from the observation that two clocks placed one west and one east would record a different time for the same eclipse of the moon. alfred wrote poems on the worthiness of wisdom and knowledge in preference to material pleasures, pride, and fame, in dealing with life's sorrow and strife. his observations on human nature and his proverbs include: . as one sows, so will he mow. . every man's doom [judgment] returns to his door. . he who will not learn while young, will repent of it when old. . weal [prosperity] without wisdom is worthless. . though a man had acres sown with red gold, and the gold grew like grass, yet he is not a whit the worthier unless he gain friends for himself. . gold is but a stone unless a wise man has it. . it's hard to row against the sea flood; so it is against misfortune. . he who toils in his youth to win wealth, so that he may enjoy ease in his old age, has well bestowed his toil. . many a man loses his soul through silver. . wealth may pass away, but wisdom will remain, and no man may perish who has it for his comrade. . don't choose a wife for her beauty nor for wealth, but study her disposition. . many an apple is bright without and bitter within. . don't believe the man of many words. . with a few words a wise man can compass much. . make friends at market, and at church, with poor and with rich. . though one man wielded all the world, and all the joy that dwells therein, he could not therewith keep his life. . don't chide with a fool. . a fool's bolt is soon shot. . if you have a child, teach it men's manners while it is little. if you let him have his own will, he will cause you much sorrow when he comes of age. . he who spares the rod and lets a young child rule, shall rue it when the child grows old. . either drinking or not drinking is, with wisdom, good. . be not so mad as to tell your friend all your thoughts. . relatives often quarrel together. . the barkless dog bites ill. . be wise of word and wary of speech, then all shall love you. . we may outride, but not outwit, the old man. . if you and your friend fall out, then your enemy will know what your friend knew before. . don't choose a deceitful man as a friend, for he will do you harm. . the false one will betray you when you least expect it. . don't choose a scornful false friend, for he will steal your goods and deny the theft. . take to yourself a steadfast man who is wise in word and deed; he will prove a true friend in need. to restore education and religion, alfred disseminated the anglo- saxon chronicles; the venerable bede's ecclesiastical history of the english nation; the "consolidation of philosophy" by roman philosopher boethius, which related the use of adversity to develop the soul, and described the goodness of god and how the highest happiness comes from spiritual values and the soul, which are eternal, rather than from material or earthly pursuits, which are temporal; and pope gregory's pastoral care, which he had translated into english and was the fundamental book on the duty of a bishop, which included a duty to teach laymen; and orosius' history of the world, which he had translated into english. alfred's advice to pastors was to live as they had been taught from books and to teach this manner of life to others. to be avoided was pride, the mind's deception of seeking glory in the name of doing good works, and the corruption of high office. bede was england's first scholar, first theologian, and first historian. he wrote poetry, theological books, homilies, and textbooks on grammar, rhetoric [public speaking and debating], arithmetic, and astronomy. he adhered to the doctrine that death entered the world by the sin of adam, the first man. he began the practice of dating years from the birth of christ and believed that the earth was round. over the earth was a fiery spherical firmament. above this were the waters of the heavens. above this were the upper heavens, which contained the angels and was tempered with ice. he declared that comets portend downfalls of kingdoms, pestilence, war, winds, or heat. this reflected the church's view that a comet was a ball of fire flung from the right hand of an angry god as a warning to mankind, usually for disbelief. storms were begun by the devil. a famous poem, the oral legend of beowulf, a hero who led his men into adventures and performed great feats and fought monsters and dragons, was put into writing with a christian theme. in it, loyalty to one's lord is a paramount virtue. also available in writing was the story of king arthur's twelve victorious battles against the pagan saxons, authored by nennius. there were professional story tellers attached to great men. others wandered from court to court, receiving gifts for their story telling. men usually told oral legends of their own feats and those of their ancestors after supper. alfred had monasteries rebuilt with learned and moral men heading them. he built a nunnery which was headed by his daughter as prioress. he built a strong wall with four gates around london, which he had taken into his control. he appointed his son-in-law, who was one of his eorldormen, to be alderman [older man] to govern london and to be the shire's earl. a later king built a palace in london, although winchester was still the royal capital town. when the king traveled, he and his retinue were fed by the local people at their expense. after alfred's death, his daughter aethelflared ruled the country for seven years. she had more fortified burhs built and led soldiers to victories. under the royalty were the nobles. an earl headed each shire as representative of the king. the term "earl" came to denote an office instead of a nobleman. he led the array of his shire to do battle if the shire was attacked. he executed all royal commands. an earl received grants of land and could claim hospitality and maintenance for himself, his officers, and his servants. he presided over the shire court. he received one-third of the fines from the profits of justice and collected as well a third of the revenues derived from tolls and duties levied in the boroughs of his shire. the office tended to be hereditary. royal representatives called "reeves" started to assist them. the reeve took security from every person for the maintenance of the public peace. he also tracked cattle thieves, brought suspects to court, gave judgments according to the doom books, and delivered offenders to punishment. under the earls were the thegns. by service to the king, it was possible for a coerl to rise to become a thegn and to be given land by the king. other thegns performed functions of magistrates. a thegn was later identified as a person with five hides of land, a kitchen, a church, a bell house, a judicial place at the burhgemote [a right of magistracy], and an appointment in the king's hall. he was bound to service in war by virtue of his landholding instead of by his relationship to the king. nobility was now a territorial attribute, rather than one of birth. the wergeld of a thegn was s. when that of a ceorl or ordinary freeman was s. the wergeld of an earl or bishop was four times that of a thegn: s. the wergeld of a king or archbishop was six times that of a thegn: s. the higher a man's wergeld, the higher was his legal status in the scale of punishment, giving credible evidence, and participation in legal proceedings. the sokemen were freemen who had inherited their own land, chose their own lord, and attended and were subject to their lord's court. that is, their lord has soke [soc] jurisdiction over them. a ceorl typically had a single hide of land. a smallholder rented land of about acres from a landlord, which he paid by doing work on the lord's demesne [household or messuage] land, paying money rent, or paying a food rent such as in eggs or chickens. smallholders made up about two fifths of the population. a cottager had one to five acres of land and depended on others for his living. among these were shepherds, ploughmen, swineherds, and blacksmiths. they also participated in the agricultural work, especially at harvest time. it was possible for a thegn to become an earl, probably by the possession of forty hides. he might even acquire enough land to qualify him for the witan. women could be present at the witanagemot and shiregemote [meeting of the people of the shire]. they could sue and be sued in the courts. they could independently inherit, possess, and dispose of property. a wife's inheritance was her own and under no control of her husband. marriage required the consent of the lady and her friends. the man also had to arrange for the foster lean, that is, remuneration for rearing and support of expected children. he also declared the amount of money or land he would give the lady for her consent, that is, the morgengift, and what he would bequeath her in case of his death. it was given to her on the morning after the wedding night. the family of the bride was paid a "mund" for transferring the rightful protection they possessed over her to the family of the husband. if the husband died and his kindred did not accept the terms sanctioned by law, her kindred could repurchase the rightful protection. if she remarried within a year of his death, she had to forfeit the morgengift and his nearest kin received the lands and possessions she had. the word for man was "waepnedmenn" or weaponed person. a woman was "wifmenn" or wife person, with "wif" being derived from the word for weaving. great men and monasteries had millers, smiths, carpenters, architects, agriculturists, fishermen, weavers, embroiders, dyers, and illuminators. for entertainment, minstrels sang ballads about heroes or bible stories, harpers played, jesters joked, and tumblers threw and caught balls and knives. there was gambling, dice games, and chasing deer with hounds. fraternal guilds were established for mutual advantage and protection. a guild imposed fines for any injury of one member by another member. it assisted in paying any murder fine imposed on a member. it avenged the murder of a member and abided by the consequences. it buried its members and purchased masses for his soul. mercantile guilds in seaports carried out commercial speculations not possible by the capital of only one person. there were some ale houses, probably part of certain dwellings. - the law - alfred issued a set of laws to cover the whole country, which were drawn from the best laws of each region. there was no real distinction between the concepts of law, morals, and religion. the importance of telling the truth and keeping one's word are expressed by this law: " . at the first we teach that it is most needful that every man warily keep his oath and his wed. if any one be constrained to either of these wrongfully, either to treason against his lord, or to any unlawful aid; then it is juster to belie than to fulfill. but if he pledge himself to that which is lawful to fulfill, and in that belie himself, let him submissively deliver up his weapon and his goods to the keeping of his friends, and be in prison forty days in a king's tun: let him there suffer whatever the bishop may prescribe to him..." let his kinsmen feed him, if he has no food. if he escapes, let him be held a fugitive and be excommunicate of the church. the word of a bishop and of the king were incontrovertible without an oath. the ten commandments were written down as this law: "the lord spake these words to moses, and thus said: i am the lord thy god. i led thee out of the land of the egyptians, and of their bondage. . love thou not other strange gods above me. . utter thou not my name idly, for thou shalt not be guiltless towards me if thou utter my name idly. . remember that thou hallow the rest day. work for yourselves six days, and on the seventh rest. for in six days, christ wrought the heavens and the earth, the seas, and all creatures that are in them, and rested on the seventh day: and therefore the lord hallowed it. . honor thy father and thy mother whom the lord hath given thee, that thou mayst be the longer living on earth. . slay thou not. . commit thou not adultery. . steal thou not. . say thou not false witness. . covet thou not thy neighbor's goods unjustly. . make thou not to thyself golden or silver gods." if any one fights in the king's hall, or draws his weapon, and he be taken; be it in the king's doom, either death, or life, as he may be willing to grant him. if he escape, and be taken again, let him pay for himself according to his wergeld, and make bot for the offense, as well wer as wite, according as he may have wrought. if a man fights before a king's ealdorman in the gemot, let him make bot with wer and wite as it may be right; and before this s. to the ealdorman as wite. if he disturbs the folkmote by drawing his weapon, s. to the ealdorman as wite. if any of this happens before a king's ealdorman's junior, or a king's priest, s. as wite. if any one fights in a ceorlish man's dwelling, let him make bot of s. to the ceorl. if he draws his weapon but doesn't fight, let it be half of that. if, however, either of these happens to a man with a wergeld of s., let it increase threefold of the ceorlish bot; and if to a man with a wergeld of s., let it increase twofold of the bot of the man with a wergeld of s. breach of the king's dwelling [breaking and entering] shall be s.; an archbishop's, s.; any other bishop's, and an ealdorman's, s.;. a s. wergeld man's, s.; a s. wergeld man's, s.; and a ceorl's s. if any one plot against the king's life, of himself, or by harboring of exiles, or of his men; let him be liable with his life and in all that he has; or let him prove himself according to his lord's wer. if any one with a band or gang of men slays an unoffending man, let him who acknowledges the deathblow pay wer and wite. if the slain man had a wergeld of s, let every one who was of the gang pay s. as gangbot. if he had a wergeld of s., let every one pay s. as gangbot. if he had a wergeld of s., let every one pay s. if a gang does this, and afterwards denies it on oath, let them all be accused, and let them then all pay the wer in common; and all, one wite, such as shall belong to the wer. if any one lends his weapon to another so he may kill some one with it, they may join together if they will in the wer. if they will not join together, let him who lent the weapon pay of the wer a third part, and of the wite a third part. with his lord a man may fight free of liability for homicide, if any one attack the lord: thus may the lord fight for his man. likewise, a man may fight with his born kinsman, if a man attack him wrongfully, except against his lord. and a man may fight free of liability for homicide, if he finds another with his lawful wife, within closed doors, or under one covering, or with his lawfully born daughter, or with his lawfully born sister, or with his mother, who was given to his father as his lawful wife. if a man knows his foe is sitting at his home, he may not fight with him before he demands justice of him. if he has such power that he can beset his foe, and besiege him within, let him keep him within for seven days, and not attack him if he will remains within. and, then, after seven days, if he surrenders, and gives up his weapons, let him be kept safe for thirty days, and let notice of him be given to his kinsmen and his friends. but if he does not have sufficient power to besiege him within, let him ride to the ealdorman, and beg aid of him. if he will not aid him, let him ride to the king before he fights. in like manner also, if a man come upon his foe, and he did not know beforehand that he was staying at his home; if he is willing to give up his weapons, let him be kept for thirty days, and let notice of him be given to his friends; if he will not give up his weapons, then he may attack him. if he is willing to surrender, and to give up his weapons, and any one after that attack him, let him pay as well wer as wound, as he may do, and wite, and let him have forfeited his compensation to his kin. every church shall have this peace: if a fugitive flee to one for sanctuary, no one may drag him out for seven days. if he is willing to give up his weapons to his foes, let him stay thirty days, and then let notice of him be given to his kinsmen. if any man confess in church any offenses which had not been before revealed, let him be half forgiven. if a man from one holdgetael wishes to seek a lord in another holdgetael, let him do it with the knowledge of the ealdorman whom he before followed in his shire. if he does it without his knowledge, let him who treats him as his man pay s. as wite, one-half to the king in the shire where he before followed and one-half in that into which he comes. if he has done anything wrong where he was before, let him make bot for it who has there received him as his man; and to the king s. as wite. "if any one steals so that his wife and children don't know it, he shall pay shillings as wite. but if he steals with the knowledge of all his household, they shall all go into slavery. a boy of ten years may be privy to a theft." "if one who takes a thief, or holds him for the person who took him, lets the thief go, or conceals the theft, he shall pay for the thief according to his wer. if he is an eorldormen, he shall forfeit his shire, unless the king is willing to be merciful to him." if any one steal in a church, let him pay the lawful penalty and the wite, and let the hand be struck off with which he did it. if he will redeem the hand, and that be allowed him, let him pay as may belong to his wer. if a man slanders another, the penalty is no lighter thing than that his tongue be cut out; which must not be redeemed at any cheaper rate than it is estimated at according to his wer. if one deceives an unbetrothed woman and sleep with her, he must pay for her and have her afterwards to wife. but if her father not approve, he should pay money according to her dowry. "if a man seize hold of the breast of a ceorlish woman, let him make bot to her with shillings. if he throw her down and do not lie with her, let him make bot with shillings. if he lie with her, let him make bot with shillings. if another man had before lain with her, then let the bot be half that. ... if this befall a woman more nobly born, let the bot increase according to the wer." "if any one, with libidinous intent, seize a nun either by her raiment or by her breast without her leave, let the bot be twofold, as we have before ordained concerning a laywoman." "if a man commit a rape upon a ceorl's female slave, he must pay bot to the ceorl of shillings and a wite [fine to the king] of shillings. if a male theow rape a female theow, let him make bot with his testicles." for the first dog bite, the owner pays shillings, for the second, shillings, for the third, shillings. an ox which gores someone to death shall be stoned. if one steals or slays another's ox, he must give two oxen for it. the man who has land left to him by his kindred must not give it away from his kindred, if there is a writing or witness that such was forbidden by those men who at first acquired it, and by those who gave it to him; and then let that be declared in the presence of the king and of the bishop, before his kinsmen. - judicial procedure - cases were held at monthly meetings of the hundred court. the king or one of his reeves, conducted the trial by compurgation. in compurgation, the one complaining, called the "plaintiff", and the one defending, called the "defendant", each told their story and put his hand on the bible and swore "by god this oath is clean and true". a slip or a stammer would mean he lost the case. otherwise, community members would stand up to swear on behalf of the plaintiff or the defendant as to their reputation for veracity. the value of a man's oath was commensurate with his value or wergeld. a man's brothers were usually his compurgators. if these "compurgators" were too few, usually twelve in number, or recited poorly, their party lost. if this process was inconclusive, the parties could bring witnesses to declare such knowledge as they had as neighbors. these witnesses, male and female, swore to particular points determined by the court. if the witnesses failed, the defendant was told to go to church and to take the sacrament only if he or she were innocent. if he or she took the sacrament, he or she was tried by the process of "ordeal", which was administered by the church. in the ordeal by cold water, he was given a drink of holy water and then bound hand and foot and thrown into water. if he floated, he was guilty. if he sank, he was innocent. it was not necessary to drown to be deemed innocent. in the ordeal by hot water, he had to pick up a stone from inside a boiling cauldron. if his hand was healing in three days, he was innocent. if it was festering, he was guilty. a similar ordeal was that of hot iron, in which one had to carry in his hands a hot iron for a certain distance. the results of the ordeal were taken to indicate the will of god. presumably a person convicted of murder, i.e. killing by stealth, or robbery [taking from a person's robe, that is, his person or breaking into his home to steal] would be hung and his possessions confiscated. a bishop's oath was incontrovertible. accused archbishops and bishops could clear themselves with an oath that they were guiltless. lesser ranks could clear themselves with the oaths of three compurgators of their rank or, for more serious offenses, undergo the ordeal of the consecrated morsel. for this, one would swallow a morsel; if he choked on it, he was guilty. any inanimate or animate object or personal chattel which was found by a court to be the immediate cause of death was forfeited as "deodand", for instance, a tree from which a man fell to his death, a beast which killed a man, a sword of a third party not the slayer that was used to kill a man. the deodand was to go to the dead man's kin so they could wreak their vengeance on it, which in turn would cause the dead man to lie in peace. this is a lawsuit regarding rights to feed pigs in a certain woodland: "in the year which had passed since the birth of christ, and in the course of the second indiction, and during the reign of beornwulf, king of mercia, a council meeting was held in the famous place called clofesho, and there the said king beornwulf and his bishops and his earls and all the councilors of this nation were assembled. then there was a very noteworthy suit about wood pasture at sinton, towards the west in scirhylte. the reeves in charge of the pigherds wished to extend the pasture farther, and take in more of the wood than the ancient rights permitted. then the bishop and the advisors of the community said that they would not admit liability for more than had been appointed in aethelbald's day, namely mast for swine, and that the bishop and the community should have two thirds of the wood and of the mast. the archbishop wulfred and all the councilors determined that the bishop and the community might declare on oath that it was so appointed in aethelbald's time and that they were not trying to obtain more, and the bishop immediately gave security to earl eadwulf to furnish the oath before all the councilors, and it was produced in days at the bishop's see at worcester. at that time hama was the reeve in charge of the pigherds at sinton, and he rode until he reached worcester, and watched and observed the oath, as earl eadwulf bade him, but did not challenge it. here are the names and designations of those who were assembled at the council meeting ..." - - - chapter - - - - the times: - - there were many large landholders such as the king, earls, and bishops. earls were noblemen by birth, and often relatives of the king. they were his army commanders and the highest civil officials, each responsible for a shire. a breach of the public peace of an earl would occasion a fine. lower in social status were freemen: sokemen, and then, in decreasing order, villani [villeins], bordarii, and cottarii. the servi were the slaves. probably all who were not slaves were freemen. kings typically granted land in exchange for services of military duties, maintaining fortresses, and repairing bridges. less common services required by landlords include equipping a guard ship and guarding the coast, guarding the lord, military watch, maintaining the deer fence at the king's residence, alms giving, and church dues. since this land was granted in return for service, there were limitations on its heritability and often an heir had to pay a heriot to the landlord to obtain the land. a heriot was originally the armor of a man killed, which went to the king. the heriot of a thegn who had soken came to be about s.; of a kings' thegn about four lances, two coats of mail, two swords, and s.; of an earl about eight horses, four saddled and four unsaddled, eight lances, four coats of mail, four swords, and s. there were several thousand thegns, rich and poor, who held land directly of the king. some thegns had soken or jurisdiction over their own lands and others did not. free farmers who had sought protection from thegns in time of war now took them as their lords. a freeman could chose his lord, following him in war and working his land in peace. all able-bodied freemen were liable to military service in the fyrd [national militia], but not in a lord's private wars. in return, the lord would protect him against encroaching neighbors, back him in the courts of law, and feed him in times of famine. but often, lords raided each other's farmers, who fled into the hills or woods for safety. often a lord's fighting men stayed with him at his large house, but later were given land with inhabitants on it, who became his tenants. the lords were the ruling class and the greatest of them sat in the king's council along with bishops, abbots, and officers of the king's household. the lesser lords were local magnates, who officiated at the shire and hundred courts. staghunting, foxhunting, and hawking were reserved for lords who did not work with their hands. every free born person had the right to hunt other game. there was a great expansion of arable land. some land had been specifically allocated to certain individuals. some was common land, held by communities. if a family came to pay the dues and fines on certain common land, it could become personal to that family and was then known as heirland. most land came to be privately held from community-witnessed allotments or inheritance. bookland was those holdings written down in books. this land was usually land that had been given to the church or monasteries because church clerics could write. so many thegns gave land to the church, usually a hide, that the church held / of the land of the realm. folkland was that land that was left over after allotments had been made to the freemen and which was not common land. it was public land and a national asset and could be converted to heirland or bookland only by action of the king and witan. it could also be rented by services to the state via charter. a holder of folkland might express a wish, e.g. by testamentary action, for a certain disposition of it, such as an estate for life or lives for a certain individual. but a distinct act by the king and witan was necessary for this wish to take effect. small private transactions of land could be done by "livery of seisin" in the presence of neighbors. all estates in land could be let, lent, or leased by its holders, and was then known as "loenland". ploughs and wagons could be drawn by four or more oxen or horses in sets of two behind each other. oxenshoes and horseshoes prevented lameness due to cracked hooves. horse collars especially fitted for horses, replaced oxen yoke that had been used on horses. the horse collar did not restrict breathing and enabled horses to use the same strength of oxen. also, horses had better endurance and faster speed. a free holder's house was wood, perhaps with a stone foundation, and roofed with thatch or tiles. there was a main room or hall, with bed chambers around it. beyond was the kitchen, perhaps outside under a lean-to. these buildings were surrounded by a bank or stiff hedge. simple people lived in huts made from wood and mud, with one door and no windows. they slept around a wood-burning fire in the middle of the earthen floor. they wore shapeless clothes of goat hair and unprocessed wool from their sheep. they ate rough brown bread, vegetable and grain broth, ale from barley, bacon, beans, milk, cabbage, onion, apples, plums, cherries, and honey for sweetening or mead. vegetables grown in the country included onions, leeks, celery, lettuce, radish, carrots, garlic, shallots, parsnip, dill, chervil, marigold, coriander, and poppy. in the summer, they ate boiled or raw veal and wild fowl such as ducks, geese, or pigeons, and game snared in the forest. poultry was a luxury food, but recognized as therapeutic for invalids, especially in broth form [chicken soup]. venison was highly prized. there were still some wild boar, which were hunted with long spears, a greyhound dog, and hunting horns. they sometimes mated with the domestic pigs which roamed the woodlands. in september, the old and infirm pigs were slaughtered and their sides of bacon smoked in the rafters for about a month. their intestines provided skin for sausages. in the fall, cattle were slaughtered and salted for food during the winter because there was no more pasture for them. however, some cows and breed animals were kept through the winter. for their meals, people used wooden platters, sometimes earthenware plates, drinking horns, drinking cups from ash or alderwood turned on a foot-peddled pole lathe, and bottles made of leather. their bowls, pans, and pitchers were made by the potter's wheel. water could be boiled in pots made of iron, brass, lead, or clay. water could be carried in leather bags because leather working preservative techniques improved so that tanning prevented stretching or decaying. at the back of each hut was a hole in the ground used as a latrine, which flies frequented. moss was used for toilet paper. parasitical worms in the stool were ubiquitous. most of the simple people lived in villages of about homes circling a village green or lining a single winding lane. there were only first names, and these were usually passed down family lines. to grind their grain, the villagers used hand mills with crank and gear, or a communal mill, usually built of oak, driven by power transmitted through a solid oak shaft, banded with iron as reinforcement, to internal gear wheels of elm. almost every village had a watermill. it might be run by water shooting over or flowing under the wheel. clothing for men and women was made from coarse wool, silk, and linen and was usually brown in color. only the wealthy could afford to wear linen or silk. men also wore leather clothing, such as neckpieces, breeches, ankle leathers, shoes, and boots. boots were worn when fighting. they carried knives or axes under metal belts. they could carry items by tying leather pouches onto their belts with their drawstrings. they wore leather gloves for warmth and for heavy working with their hands. people were as tall, strong and healthy as in the late s, not having yet endured the later malnourishment and overcrowding that was its worst in the s and s. their teeth were very healthy. most adults died in their s, after becoming arthritic from hard labor. people in their s were deemed venerable. boys of twelve were considered old enough to swear an oath of allegiance to the king. girls married in their early teens, often to men significantly older. the lands of the large landholding lords were administered by freemen. they had wheat, barley, oats, and rye fields, orchards, vineyards for wine, and beekeeping areas for honey. on this land lived not only farm laborers, cattle herders, shepherds, goatherds, and pigherds, but craftsmen such as goldsmiths, hawkkeepers, dogkeepers, horsekeepers, huntsmen, foresters, builders, weaponsmiths, embroiders, bronze smiths, blacksmiths, watermill wrights, wheelwrights, wagon wrights, iron nail makers, potters, soap makers (made from wood ashes reacting chemically with fats or oils), tailors, shoemakers, salters (made salt at the "wyches", which later became towns ending with '-wich'), bakers, cooks, and gardeners. most men did carpentry work. master carpenters worked with ax, hammer, and saw to make houses, doors, bridges, milk buckets, washtubs, and trunks. blacksmiths made gates, huge door hinges, locks, latches, bolts, and horseshoes. the lord loaned these people land on which to live for their life, called a "life estate", in return for their services. the loan could continue to their widows or children who took up the craft. mills were usually powered by water. candles were made from beeswax, which exuded a bright and steady light and pleasant smell, or from mutton fat, which had an unpleasant odor. the wheeled plough and iron-bladed plough made the furrows. one man held the plough and another walked with the oxen, coaxing them forward with a stick and shouts. seeds were held in an apron for seeding. farm implements included spades, shovels, rakes, hoes, buckets, barrels, flails, and sieves. plants were pruned to direct their growth and to increase their yield. everyone got together for feasts at key stages of the farming, such as the harvest. easter was the biggest feast. when the lord was in the field, his lady held their estate. there were common lands of these estates as well as of communities. any proposed new settler had to be admitted at the court of this estate. the land of some lords included fishing villages along the coasts. >from the sea were caught herrings, salmon, porpoises, sturgeon, oysters, crabs, mussels, cockles, winkles, plaice, flounder, and lobsters. sometimes whales were driven into an inlet by many boats. river fish included eels, pike, minnows, burbot, trout, and lampreys. they were caught by brushwood weirs, net, bait, hooks, and baskets. oysters were so numerous that they were eaten by the poor. the king's peace extended over the waterways. if mills, fisheries, weirs, or other structures were set up to block them, they were to be destroyed and a penalty paid to the king. other lords had land with iron mining industries. ore was dug from the ground and combined with wood charcoal in a shaft furnace to be smelted into liquid form. wood charcoal was derived from controlled charring of the wood at high temperatures without using oxygen. this burned impurities from it and left a purer carbon, which burned better than wood. the pure iron was extracted from this liquid and formed into bars. to keep the fire hot, the furnaces were frequently placed at windswept crossings of valleys or on the tops of hills. some lords had markets on their land, for which they charged a toll [like a sales tax] for participation. there were about fifty markets in the nation. cattle and slaves (from the word "slav") were the usual medium of exchange. an ox still was worth about d. shaking hands was symbolic of an agreement for a sale, which had to be carried out in front of witnesses at the market for any property worth over d. the higher the value of the property, the more witnesses were required. witnesses were also required for the exchange of property and to vouch for cattle having being born on the property of a person claiming them. people traveled to markets on deep, sunken roads and narrow bridges kept in repair by certain men who did this work as their service to the king. the king's peace extended to a couple of high roads, i.e. highways, running the length of the country and a couple running its width. salt was used throughout the nation to preserve meat over the winter. inland saltworks had an elaborate and specialized organization. the chief one used saltpans and furnaces to extract salt from natural brine springs. they formed little manufacturing enclaves in the midst of agricultural land, and they were considered to be neither large private estates headed by a lord nor appurtenant to such. they belonged jointly to the king and the local earl, who shared, at a proportion of two to one, the proceeds of the tolls upon the sale of salt and methods of carriage on the ancient salt ways according to cartload, horse load, or man load. sometimes there were investors in a portion of the works who lived quite at distance away. the sales of salt were mostly retail, but some bought to resell. peddlers carried salt to sell from village to village. some smiths traveled for their work, for instance, stonewrights building arches and windows in churches, and lead workers putting lead roofs on churches. an example of a grant of hides of land is: "[god has endowed king edred with england], wherefore he enriches and honors men, both ecclesiastic and lay, who can justly deserve it. the truth of this can be acknowledged by the thegn aelfsige hunlafing through his acquisition of the estate of hides at alwalton for himself and his heirs, free from every burden except the repair of fortifications, the building of bridges and military service; a prudent landowner church dues, burial fees and tithes. [this land] is to be held for all time and granted along with the things both great and small belonging to it." a bishop gave land to a faithful attendant for his life and two other lives as follows: "in a.d., i, bishop werfrith, with the permission and leave of my honorable community in worcester, grant to wulfsige, my reeve, for his loyal efficiency and humble obedience, one hide of land at aston as herred held it, that is, surrounded by a dyke, for three lives and then after three lives the estate shall be given back without any controversy to worcester." at seaports on the coast, goods were loaded onto vessels owned by english merchants to be transported to other english seaports. london was a market town on the north side of the thames river and the primary port and trading center for foreign merchants. streets that probably date from this time include milk, bread, and wood streets, and honey lane. there were open air markets such as billingsgate. there were wooden quays over much of the river front. houses were made of wood, with one sunken floor, or a ground floor with a cellar beneath. some had central stone hearths and earth latrines. there were crude pottery cooking pots, beakers and lamps, wool cloth, a little silk, simple leather shoes, pewter jewelry, looms, and quernstones (for grinding flour). wool, skins, hides, wheat, meal, beer, lead, cheese, salt, and honey were exported. wine (mostly for the church), fish, timber, pitch, pepper, garlic, spices, copper, gems, gold, silk, dyes, oil, brass, sulphur, glass, slaves, and elephant and walrus ivory were imported. goods from the continent were sold at open stalls in certain streets. furs and slaves were traded. there was a royal levy on exports by foreigners merchants. southwark was reachable by a bridge. it contained sleazy docks, prisons, gaming houses, and brothels. guilds in london were first associations of neighbors for the purposes of mutual assistance. they were fraternities of persons by voluntary compact to assist each other in poverty, including their widows or orphans and the portioning of poor maids, and to protect each other from injury. their essential features are and continue to be in the future: ) oath of initiation, ) entrance fee in money or in kind and a common fund, ) annual feast and mass, ) meetings at least three times yearly for guild business, ), obligation to attend all funerals of members, to bear the body if need be from a distance, and to provide masses for the dead, ) the duty of friendly help in cases of sickness, imprisonment, house burning, shipwreck, or robbery, ) rules for decent behavior at meetings, and ) provisions for settling disputes without recourse to the law. both the masses and the feast were attended by the women. frequently the guilds also had a religious ceremonial to affirm their bonds of fidelity. they readily became connected with the exercise of trades and with the training of apprentices. they promoted and took on public purposes such as the repairing of roads and bridges, the relief of pilgrims, the maintenance of schools and almshouses, and the periodic performance of pageants and miracle plays telling scriptural history, which could last for several days. the devil often was prominent in miracle plays. many of these london guilds were known by the name of their founding member. there were also frith guilds (peace guilds) and a knights' guild. the frith guild's main object was to enforce the king's laws, especially the prevalent problem of theft. they were especially established by bishops and reeves. members met monthly and contributed about d. to a common fund, which paid a compensation for items stolen. they each paid s. towards the pursuit of the thief. the members were grouped in tens. members with horses were to track the thief. members without horses worked in the place of the absent horse owners until their return. when caught, the thief was tried and executed. overwhelming force was used if his kindred tried to protect him. his property was used to compensate the victim for his loss and then divided between the thief's wife, if she was innocent, the king, and the guild. owners of slaves paid into a fund to give one half compensation to those who lost slaves by theft or escape, and recaptured slaves were to be stoned to death or hanged. the members of the peace guild also feasted and drank together. when one died, the others each sang a song or paid for the singing of fifty psalms for his soul and gave a loaf. the knights' guild was composed of thirteen military persons to whom king edgar granted certain waste land in the east of london, toward aldgate, and also portsoken, which ran outside the eastern wall of the city to the thames, for prescribed services performed, probably defense of the vulnerable east side of the city. this concession was confirmed by king edward the confessor in a charter at the suit of certain citizens of london, the successors of these knights. edward granted them sac and soke [cause and suit] jurisdiction over their men. edward the confessor made these rules for london: . be it known that within the space of three miles from all parts outside of the city a man ought not to hold or hinder another, and also should not do business with him if he wish to come to the city under its peace. but when he arrives in the city, then let the market be the same to the rich man as to the poor. . be it also known that a man who is from the court of the king or the barons ought not to lodge in the house of any citizen of london for three nights, either by privilege or by custom, except by consent of the host. for if he force the host to lodge him in his house and there be killed by the host, let the host choose six from his relatives and let him as the seventh swear that he killed him for the said cause. and thus he will remain quit of the murder of the deceased towards the king and relatives and lords of the deceased. . and after he has entered the city, let a foreign merchant be lodged wherever it please him. but if he bring dyed cloth, let him see to it that he does not sell his merchandise at retail, but that he sell not less than a dozen pieces at a time. and if he bring pepper, or cumin, or ginger, or alum, or brasil wood, or resin, or incense, let him sell not less than fifteen pounds at a time. but if he bring belts, let him sell not less than a thousand at a time. and if he bring cloths of silk, or wool or linen, let him see that he cut them not, but sell them whole. but if he bring wax, let him sell not less than one quartanum. also a foreign merchant may not buy dyed cloth, nor make the dye in the city, nor do any work which belongs by right to the citizens. . also no foreign merchant with his partner may set up any market within the city for reselling goods in the city, nor may he approach a citizen for making a bargain, nor may he stop longer in the city. every week in london there was a folkmote at st. paul's churchyard, where majority decision was a tradition. by , it had lost much of its power to the husting [household assembly in danish] court. the folkmote then had responsibility for order and was the sole authority for proclaiming outlaws. it met three times a year at st. paul's churchyard and there acclaimed the sheriff and justiciar, or if the king had chosen his officer, heard who was chosen and listened to his charge. it also yearly arranged the watch and dealt with risks of fire. it was divided into wards, each governed by an alderman who presided over the wardmote, and represented his ward at the folkmote. each guild became a ward. the chief alderman was the portreeve. london paid one-eighth of all the taxes of england. later in the towns, merchant guilds grew out of charity associations whose members were bound by oath to each other and got together for a guild feast every month. some traders of these merchant guilds became so prosperous that they became landholders. many market places were dominated by a merchant guild, which had a monopoly of the local trade. in the great mercantile towns all the land and houses would be held by merchants and their dependents, all freeholders were connected with a trade, and everyone who had a claim on public office or magistry would be a member of the guild. the merchant guild could admit into their guild country villeins, who became freemen if unclaimed by their lords for a year and a day. every merchant who had made three long voyages on his own behalf and at his own cost ranked as a thegn. there were also some craft guilds composed of handicraftsmen or artisans. escaped bonded agricultural workers, poor people, and traders without land migrated to towns to live, but were not citizens. towns were largely self-sufficient, but salt and iron came from a distance. the king's established in every shire at least one town with a market place where purchases would be witnessed and a mint where reliable money was coined by a moneyer, who put his name on his coins. there were eight moneyers in london. coins were issued to be of value for only a couple of years. then one had to exchange them for newly issued ones at a rate of about old for or new. the difference constituted a tax. roughly % of the people lived in towns. some took surnames such as tanner, weaver, or carpenter. some had affectionate or derisive nicknames such as clear-hand, fresh friend, soft bread, foul beard, money taker, or penny purse. craftsmen in the s included goldsmiths, embroiderers, illuminators of manuscripts, and armorers. edward the confessor, named such for his piety, was a king of years who was widely respected for his intelligence, resourcefulness, good judgment, and wisdom. his educated queen edith, whom he relied on for advice and cheerful courage, was a stabilizing influence on him. they were served by a number of thegns, who had duties in the household, which was composed of the hall, the courtyard, and the bedchamber. they were important men - thegns by rank. they were landholders, often in several areas, and held leading positions in the shires. they were also priests and clerics, who maintained the religious services and performed tasks for which literacy was necessary. edward was the first king to have a "chancellor". he kept a royal seal and was the chief royal chaplain. he did all the secretarial work of the household and court, drew up and sealed the royal writs, conducted the king's correspondence, and kept all the royal accounts. the word "chancellor" signified a screen behind which the secretarial work of the household was done. he had the special duty of securing and administering the royal revenue from vacant benefices. the most important royal officers were the chamberlains, who took care of the royal bedchamber and adjoining wardrobe used for dressing and storage of valuables, and the priests. these royal officers had at first been responsible only for domestic duties, but gradually came to assume public administrative tasks. edward wanted to avoid the pressures and dangers of living in the rich and powerful city of london. so he rebuilt a monastic church, an abbey, and a palace at westminster about two miles upstream. he started the growth of westminster as a center of royal and political power; kings' councils met there. royal coronations took place at the abbey. since edward traveled a lot, he established a storehouse-treasury at winchester to supplement his traveling wardrobe. at this time, spanish stallions were imported to improve english horses. london came to have the largest and best trained army in england. the court invited many of the greatest magnates and prelates [highest ecclesiastical officials, such as bishops] of the land to the great ecclesiastical festivals, when the king held more solemn courts and feasted with his vassals for several days. these included all the great earls, the majority of bishops, some abbots, and a number of thegns and clerics. edward had a witan of wise men to advise him, but sometimes the king would speak in the hall after dinner and listen to what comments were made from the mead-benches. as the court moved about the country, many men came to pay their respects and attend to local business. edward started the practice of king's touching people to cure them of scrofula, a disease which affected the glands, especially in the head and neck. it was done in the context of a religious ceremony. the main governmental activities were: war, collection of revenue, religious education, and administration of justice. for war, the shires had to provide a certain number of men and the ports quotas of ships with crews. the king was the patron of the english church. he gave the church peace and protection. he presided over church councils and appointed bishops. as for the administration of justice, the public courts were almost all under members of edward's court, bishops, earls, and reeves. edward's mind was often troubled and disturbed by the threat that law and justice would be overthrown, by the pervasiveness of disputes and discord, by the raging of wicked presumption, by money interfering with right and justice, and by avarice kindling all of these. he saw it as his duty to courageously oppose the wicked by taking good men as models, by enriching the churches of god, by relieving those oppressed by wicked judges, and by judging equitably between the powerful and the humble. he was so greatly revered that a comet was thought to accompany his death. the king established the office of the chancery to draft documents and keep records. it created the writ, which was a small piece of parchment [sheep skin] addressed to a royal official or dependent commanding him to perform some task for the king. by the s a.d., the writ contained a seal: a lump of wax with the impress of the great seal of england which hung from the bottom of the document. writing was done with a sharpened goose-wing quill. ink was obtained from mixing fluid from the galls made by wasps for their eggs on oak trees, rainwater or vinegar, gum arabic, and iron salts for color. a king's grant of land entailed two documents: a charter giving boundaries and conditions and a writ, usually addressed to the shire court, listing the judicial and financial privileges conveyed with the land. these were usually sac and soke [possession of jurisdiction of a private court of a noble or institution to execute the laws and administer justice over inhabitants and tenants of the estate], toll [right to have a market and to collect a payment on the sale of cattle and other property on the estate] and team [probably the right to hold a court to determine the honesty of a man accused of illegal possession of cattle or of buying stolen cattle by inquiring of the alleged seller or a warrantor, even if an outsider], and infangenetheof [the authority to hang and take the chattels of a thief caught on the estate]. the town of coventry consisted of a large monastery estate and a large private estate headed by a lord. the monastery was granted by edward the confessor full freedom and these jurisdictions: sac and soke, toll and team, hamsocne [the authority to fine a person for breaking into and making entry by force into the dwelling of another], forestall [the authority to fine a person for robbing others on the road], bloodwite [the authority to impose a forfeiture for assault involving bloodshed], fightwite [the authority to fine for fighting], weordwite [the authority to fine for manslaughter, but not for willful murder], and mundbryce [the authority to fine for any breach of the peace, such as trespass on lands]. every man was expected to have a lord to whom he gave fealty. he swore by this fealty oath: "by the lord, before whom this relic is holy, i will be to ------ faithful and true, and love all that he loves, and shun all that he shuns, according to god's law, and according to the world's principle, and never, by will nor by force, by word nor by work, do ought of what is loathful to him; on condition that he keep me as i am willing to deserve, and all that fulfill that our agreement was, when i to him submitted and chose his will." if a man was homeless or lordless, his brothers were expected to find him such, e.g. in the folkmote. otherwise, he as to be treated as a fugitive, and could be slain as for a thief, and anyone who had harbored him would pay a penalty. brothers were also expected to protect their minor kinsmen. marriages were determined by men asking women to marry them. if a woman said yes, he paid a sum to her kin for her "mund" [jurisdiction or protection over her] and gave his oath to them to maintain and support the woman and any children born. as security for this oath, he gave a valuable object or "wed". the couple were then betrothed. marriage ceremonies were performed by priests in churches. the groom had to bring friends to his wedding as sureties to guarantee his oath to maintain and support his wife and children. those who swore to take care of the children were called their "godfathers". the marriage was written into church records. after witnessing the wedding, friends ate the great loaf, or first bread made by the bride. this was the forerunner of the wedding cake. they drank special ale, the "bride ale" (from hence the work "bridal"), to the health of the couple. women could own land, houses, and furniture and other property. they could even make wills that disinherited their sons. this marriage agreement with an archbishop's sister provides her with land, money, and horsemen: "here in this document is stated the agreement which wulfric and the archbishop made when he obtained the archbishop's sister as his wife, namely he promised her the estates at orleton and ribbesford for her lifetime, and promised her that he would obtain the estate at knightwick for her for three lives from the community at winchcombe, and gave her the estate at alton to grant and bestow upon whomsoever she pleased during her lifetime or at her death, as she preferred, and promised her mancuses of gold and men and horses. the witnesses that this agreement was made as stated were archbishop wulfstan and earl leofwine and bishop aethelstan and abbot aelfweard and the monk brihtheah and many good men in addition to them, both ecclesiastics and laymen. there are two copies of this agreement, one in the possession of the archbishop at worcester and the other in the possession of bishop aethelstan at hereford." this marriage agreement provided the wife with money, land, farm animals and farm laborers; it also names sureties, the survivor of whom would receive all this property: "here is declared in this document the agreement which godwine made with brihtric when he wooed his daughter. in the first place he gave her a pound's weight of gold, to induce her to accept his suit, and he granted her the estate at street with all that belongs to it, and acres at burmarsh and in addition oxen and cows and horses and slaves. this agreement was made at kingston before king cnut, with the cognizance of archbishop lyfing and the community at christchurch, and abbot aelfmaer and the community at st. augustine's, and the sheriff aethelwine and sired the old and godwine, wulfheah's son, and aelfsige cild and eadmaer of burham and godwine, wulfstan's son, and carl, the king's cniht. and when the maiden was brought from brightling aelfgar, sired's son, and frerth, the priest of forlstone, and the priests leofwine and wulfsige from dover, and edred, eadhelm's son, and leofwine, waerhelm's son, and cenwold rust and leofwine, son of godwine of horton, and leofwine the red and godwine, eadgifu's son, and leofsunu his brother acted as security for all this. and whichever of them lives the longer shall succeed to all the property both in land and everything else which i have given them. every trustworthy man in kent and sussex, whether thegn or commoner, is cognizant of these terms. there are three of these documents; one is at christchurch, another at st. augustine's, and brihtric himself has the third." nuns and monks lived in segregated nunneries and monasteries on church land and grew their own food. the local bishop usually was also an abbot of a monastery. the priests and nuns wore long robes with loose belts and did not carry weapons. their life was ordered by the ringing of the bell to start certain activities, such as prayer; meals; meetings; work in the fields, gardens, or workshops; and copying and illuminating books. they chanted to pay homage and to communicate with god or his saints. they taught justice, piety, chastity, peace, and charity; and cared for the sick. caring for the sick entailed mostly praying to god as it was thought that only god could cure. they bathed a few times a year. they got their drinking water from upstream of where they had located their latrines over running water. the large monasteries had libraries, dormitories, guesthouses, kitchens, butteries to store wine, bakehouses, breweries, dairies, granaries, barns, fishponds, orchards, vineyards, gardens, workshops, laundries, lavatories with long stone or marble washing troughs, and towels. slavery was diminished by the church by excommunication for the sale of a child over seven. the clergy taught that manumission of slaves was good for the soul of the dead, so it became frequent in wills. the clergy were to abstain from red meat and wine and were to be celibate. but there were periods of laxity. punishment was by the cane or scourge. the archbishop of canterbury began anointing new kings at the time of coronation to emphasize that the king was ruler by the grace of god. as god's minister, the king could only do right. from , the new king swore to protect the christian church, to prevent inequities to all subjects, and to render good justice, which became a standard oath. there was a celestial hierarchy, with heavenly hosts in specific places. the heavenly bodies revolved in circles around the earthly world on crystal spheres of their own, which were serene, harmonious, and eternal. this contrasted with the change, death, and decay that occurred in the earthly world. also in this world, aristotle's four elements of earth, air, fire, and water sought their natural places, e.g. bubbles of air rising through water. the planets were called wanderers because their motion did not fit the circular scheme. god intervened in daily life, especially if worshipped. saints such as bede and hilda performed miracles, especially ones of curing. their spirits could be contacted through their relics, which rested at the altars of churches. when someone was said to have the devil in him, people took it quite literally. a real jack frost nipped noses and fingers and made the ground too hard to work. little people, elves, trolls, and fairies inhabited the fears and imaginings of people. the forest was the mysterious home of spirits. people prayed to god to help them in their troubles and from the work of the devil. since natural causes of events were unknown, people attributed events to wills like their own. illness was thought to be caused by demons. people hung charms around their neck for cure and treatments of magic and herbs were given. some had hallucinogenic effects, which were probably useful for pain. for instance, the remedy for "mental vacancy and folly" was a drink of "fennel, agrimony, cockle, and marche". blood- letting by leeches and cautery were used for most maladies, which were thought to be caused by imbalance of the four bodily humors: sanguine, phlegmatic, choleric, and melancholic. these four humors reflected the four basic elements air, water, fire, and earth. blood was hot and moist like air; phlegm was cold and moist like water; choler or yellow bile was hot and dry like fire; and melancholy or black bile was cold and dry like earth. bede had explained that when blood predominates, it makes people joyful, glad, sociable, laughing, and talking a great deal. phlegm renders them slow, sleepy, and forgetful. red cholic makes them thin, though eating much, swift, bold, wrathful, and agile. black cholic makes them serious of settled disposition, even sad. to relieve brain pressure and/or maybe to exorcise evil spirits, holes were made in skulls by a drill with a metal tip that was caused to turn back and forth by a strap wrapped around a wooden handle. a king's daughter edith inspired a cult of holy wells, whose waters were thought to alleviate eye conditions. warmth and rest were also used for illness. agrimony boiled in milk was thought to relieve impotence in men. it was known that the liver casted out impurities in the blood. the stages of fetal growth were known. the soul was not thought to enter a fetus until after the third month, so presumably abortions within three months were allowable. the days of the week were sun day, moon day, tiw's day (viking god of war), woden's day (viking god of victory, master magician, calmer of storms, and raiser of the dead), thor's day (viking god of thunder), frig's day (viking goddess of fertility and growing things), and saturn's day (roman god). special days of the year were celebrated: christmas, the birthday of jesus christ; the twelve days of yuletide (a viking tradition) when candles were lit and houses decorated with evergreen and there were festivities around the burning of the biggest log available; plough monday for resumption of work after yuletide; february th with a feast celebrating saint valentinus, a roman bishop martyr who had married young lovers in secret when marriage was forbidden to encourage men to fight in war; new year's day on march th when seed was sown and people banged on drums and blew horns to banish spirits who destroy crops with disease; easter, the day of the resurrection of jesus christ; whitsunday, celebrating the descent of the holy spirit on the apostles of jesus and named for the white worn by baptismal candidates; may day when flowers and greenery was gathered from the woods to decorate houses and churches, morris dancers leapt through their villages with bells, hobby horses, and waving scarves, and people danced around a may pole holding colorful ribbons tied at the top so they became entwined around the pole; lammas on august st, when the first bread baked from the wheat harvest was consecrated; harvest home when the last harvest load was brought home while an effigy of a goddess was carried with reapers singing and piping behind, and october st, the eve of the christian designated all hallow day, which then became known as all hallow even, or halloween. people dressed as demons, hobgoblins, and witches to keep spirits away from possessing them. trick or treating began with christian beggars asking for "soul cake" biscuits in return for praying for dead relatives. ticktacktoe and backgammon were played. there were riddles such as: i am a strange creature, for i satisfy women ... i grow very tall, erect in a bed. i'm hairy underneath. from time to time a beautiful girl, the brave daughter of some fellow dares to hold me grips my reddish skin, robs me of my head and puts me in the pantry. at once that girl with plaited hair who has confined me remembers our meeting. her eye moistens. what am i? an onion. a man came walking where he knew she stood in a corner, stepped forwards; the bold fellow plucked up his own skirt by hand, stuck something stiff beneath her belt as she stood, worked his will. they both wiggled. the man hurried; his trusty helper plied a handy task, but tired at length, less strong than she, weary of the work. thick beneath her belt swelled the thing good men praise with their hearts and purses. what am i? a milk churn. the languages of invaders had produced a hybrid language that was roughly understood throughout the country. the existence of europe, africa, asia, and india were known. jerusalem was thought to be at the center of the world. there was an annual tax of a penny on every hearth, peter's pence, to be collected and sent to the pope in rome. ecclesiastical benefices were to pay church- scot, a payment in lieu of first fruits of the land, to the pope. - the law - the king and witan deliberated on the making of new laws, both secular and spiritual, at the regularly held witanagemot. there was a standard legal requirement of holding every man accountable, though expressed in different ways, such as the following three: every freeman who does not hold land must find a lord to answer for him. the act of homage was symbolized by holding his hands together between those of his lord. every lord shall be personally responsible as surety for the men of his household. [this included female lords.] (king athelstan) "and every man shall see that he has a surety, and this surety shall bring and keep him to [the performance of] every lawful duty. . and if anyone does wrong and escapes, his surety shall incur what the other should have incurred. . if the case be that of a thief and his surety can lay hold of him within twelve months, he shall deliver him up to justice, and what he has paid shall be returned to him." (king edgar) every freeman who holds land, except lords with considerable landed property, must be in a local tithing, usually ten to twelve men, in which they serve as personal sureties for each other's peaceful behavior. if one of the ten landholders in a tithing is accused of an offense, the others have to produce him in court or pay a fine plus pay the injured party for the offense, unless they could prove that they had no complicity in it. if the man is found guilty but can not pay, his tithing must pay his fine. the chief officer is the "tithing man" or "capital pledge". there were probably ten tithings in a hundred. (king edward the confessor). everyone was to take an oath not to steal, which one's surety would compel one to keep. no one may receive another lord's man without the permission of this lord and only if the man is blameless towards every hand. the penalty is the bot for disobedience. no lord was to dismiss any of his men who had been accused, until he had made compensation and done right. "no woman or maiden shall be forced to marry a man she dislikes or given for money." "violence to a widow or maiden is punishable by payment of one's wergeld." no man may have more wives than one. no man may marry among his own kin within six degrees of relationship or with the widow of a man as nearly related to him as that, or with a near relative of his first wife's, or his god- mother, or a divorced woman. incest is punishable by payment of one's wergeld or a fine or forfeiture of all his possessions. grounds for divorce were mutual consent or adultery or desertion. adultery was prohibited for men as well as for women. the penalty was payment of a bot or denial of burial in consecrated ground. a law of canute provided that if a wife was guilty of adultery, she forfeited all her property to her husband and her nose and ears, but this law did not survive him. laymen may marry a second time, and a young widow may again take a husband, but they will not receive a blessing and must do penance for their incontinence. prostitutes were to be driven out of the land or destroyed in the land, unless they cease from their wickedness and make amends to the utmost of their ability. neither husband nor wife could sell family property without the other's consent. if there was a marriage agreement, it determined the wife's "dower", which would be hers upon his death. otherwise, if a man who held his land in socage [owned it freely and not subject to a larger landholder] died before his wife, she got half this property. if there were minor children, she received all this property. inheritance of land to adult children was by the custom of the land held. in some places, the custom was for the oldest son to take it and in other places, the custom was for the youngest son to take it. usually, the sons each took an equal portion by partition, but the eldest son had the right to buy out the others as to the chief messuage [manor; dwelling and supporting land and buildings] as long as he compensated them with property of equal value. if there were no legitimate sons, then each daughter took an equal share when she married. in london, one-third of the personal property of a decedent went to his wife, one-third went to his children in equal shares, and one-third he could bequeath as he wished. "if a man dies intestate [without a will], his lord shall have heriot [horses, weapons, shields, and helmets] of his property according to the deceased's rank and [the rest of] the property shall be divided among his wife, children, and near kinsmen." a man could justifiably kill an adulterer in the act with the man's wife, daughter, sister, or mother. in kent, a lord could fine any bondswoman of his who had become pregnant without his permission [childwyte]. a man could kill in defense of his own life, the life of his kinsmen, his lord, or a man whose lord he was. the offender was "caught red-handed" if the blood of his victim was still on him. self-help was available for hamsocne [breaking into a man's house to assault him]. murder is punished by death as follows: "if any man break the king's peace given by hand or seal, so that he slay the man to whom the peace was given, both his life and lands shall be in the king's power if he be taken, and if he cannot be taken he shall be held an outlaw by all, and if anyone shall be able to slay him he shall have his spoils by law." the king's peace usually extended to important designated individuals, churches, assemblies, those traveling to courts or assemblies, and particular times and places. often a king would extend his peace to fugitives from violent feuds if they asked the king, earls, and bishops for time to pay compensation for their misdeeds. from this came the practice of giving a portion of the "profits of justice" to such men who tried the fugitive. the king's peace came to be extended to those most vulnerable to violence: foreigners, strangers, and kinless persons. "if anyone by force break or enter any man's court or house to slay or wound or assault a man, he shall pay s. to the king as fine." "if anyone slay a man within his court or his house, himself and all his substance are at the king's will, save the dower of his wife if he have endowed her." if a person fights and wounds anyone, he is liable for his wer. if he fells a man to death, he is then an outlaw and is to be seized by raising the hue and cry. and if anyone kills him for resisting god's law or the king's, there will be no compensation for his death. a man could kill a thief over twelve years in the act of carrying off his property over d., e.g. the thief hand-habbende [a thief found with the stolen goods in his hand] or the thief back-berend [a thief found carrying stolen goods on his back]. cattle theft could be dealt with only by speedy pursuit. a person who had involuntarily lost possession of cattle is to at once raise the hue and cry. he was to inform the hundredman, who then called the tithingmen. all these neighbors had to then follow the trail of the cow to its taker, or pay d. to the hundred for the first offense, and d. for the second offense, half to the hundred and half to the lord, and half a pound [ s.] for the third offense, and forfeiture of all his property and declared outlaw for the fourth offense. if the hundred pursued a track into another hundred, notice was to be given to that hundredman. if he did not go with them, he had to pay s. to the king. if a thief was brought into prison, he was to be released after days if he paid his fine of s. his kindred could become his sureties, to pay according to his wer if he stole again. if a thief forfeited his freedom and gave himself up, but his kindred forsook him, and he does not know of anyone who will make bot for him; let him then do theow-work, and let the wer abate for the kindred. measures and weights of goods for sale shall be correct. every man shall have a warrantor to his market transactions and no one shall buy and sell except in a market town; but he shall have the witness of the portreeve or of other men of credit, who can be trusted. moneyers accused of minting money outside a designated market were to go to the ordeal of the hot iron with the hand that was accused of doing the fraud. if he was found guilty, his hand that did the offense was to be struck off and be set up on the money- smithy. no marketing, business, or hunting may be done on sundays. no one may bind a freeman, shave his head in derision, or shave off his beard. shaving was a sign of enslavement, which could be incurred by not paying one's fines for offenses committed. no clergy may gamble or participate in games of chance. the laws for london were: " . the gates called aldersgate and cripplegate were in charge of guards. . if a small ship came to billingsgate, one halfpenny was paid as toll; if a larger ship with sails, one penny was paid. ) if a hulk or merchantman arrives and lies there, four pence is paid as toll. ) from a ship with a cargo of planks, one plank is given as toll. ) on three days of the week toll for cloth [is paid] on sunday and tuesday and thursday. ) a merchant who came to the bridge with a boat containing fish paid one halfpenny as toll, and for a larger ship one penny." - ) foreigners with wine or blubber fish or other goods and their tolls. foreigners were allowed to buy wool, melted sheep fat [tallow], and three live pigs for their ships. " . if the town reeve or the village reeve or any other official accuses anyone of having withheld toll, and the man replies that he has kept back no toll which it was his legal duty to pay, he shall swear to this with six others and shall be quit of the charge. ) if he declares that he has paid toll, he shall produce the man to whom he paid it, and shall be quit of the charge. ) if, however, he cannot produce the man to whom he paid it, he shall pay the actual toll and as much again and five pounds to the king. ) if he vouches the taxgatherer to warranty [asserting] that he paid toll to him, and the latter denies it, he shall clear himself by the ordeal and by no other means of proof. . and we [the king and his counselors] have decreed that a man who, within the town, makes forcible entry into another man's house without permission and commits a breach of the peace of the worst kind ... and he who assaults an innocent person on the king's highway, if he is slain, shall lie in an unhonored grave. ) if, before demanding justice, he has recourse to violence, but does not lose his life thereby, he shall pay five pounds for breach of the king's peace. ) if he values the goodwill of the town itself, he shall pay us thirty shillings as compensation, if the king will grant us this concession." . no base coin or coin defective in quality or weight, foreign or english, may be used by a foreigner or an englishman. (in , a person found guilty of illicit coining was punished by loss of a hand.) - judicial procedure - there were courts for different geographical communities. the arrangement of the whole kingdom into shires was completed by after being united under king edgar. a shire was a larger area of land, headed by an earl. a shire reeve or "sheriff" represented the royal interests in the shires and in the shire courts. this officer came to be selected by the king and earl of the shire to be a judicial and financial deputy of the earl and to execute the law. the office of sheriff, which was not hereditary, was also responsible for the administration of royal lands and royal accounts. the sheriff summoned the freemen holding land in the shire, four men selected by each community or township, and all public officers to meet twice a year at their "shiremote". actually only the great lords - the bishops, earls, and thegns - attended. the shire court was primarily concerned with issues of the larger landholders. here the freemen interpreted the customary law of the locality. the earl declared the secular law and the bishop declared the spiritual law. they also declared the sentence of the judges. the earl usually took a third of the profits, such as fines and forfeits, of the shire court, and the bishop took a share. in time, the earls each came to supervise several shires and the sheriff became head of the shire and assumed the earl's duties there, such as heading the county fyrd. the shire court also heard cases which had been refused justice at the hundredmote and cases of keeping the peace of the shire. the hundred was a division of the shire, having come to refer to a geographical area rather than a number of households. the monthly hundredmote could be attended by any freeman holding land (or a lord's steward), but was usually attended only by reeve, thegns, parish priest, and four representatives selected by each agrarian community or village - usually villeins. here transfers of land were witnessed. a reeve, sometimes the sheriff, presided over local criminal and peace and order issues ["leet jurisdiction", which derived from sac and soc jurisdiction] and civil cases at the hundred court. all residents were expected to attend the leet court. the sheriff usually held each hundred court in turn. the suitors to these courts were the same as those of the shire courts. they were the judges who declared the law and ordered the form of proof, such as compurgatory oath and ordeal. they were customarily thegns, often twelve in number. they, as well as the king and the earl, received part of the profits of justice. summary procedure was followed when a criminal was caught in the act or seized after a hue and cry. every freeman over age twelve had to be in a hundred and had to follow the hue and cry. "no one shall make distraint [seizure of personal property out of the possession of an alleged wrongdoer into the custody of the party injured, to procure a satisfaction for a wrong committed] of property until he has appealed for justice in the hundred court and shire court". in , king ethelred in a law code ordered the sheriff and twelve leading magnates of each shire to swear to accuse no innocent man, nor conceal any guilty one. this was the germ of the later assize, and later still the jury. the integrity of the judicial system was protected by certain penalties: for swearing a false oath, bot as determined by a cleric who has heard his confession, or, if he has not confessed, denial of burial in consecrated ground. also a perjurer lost his oath-worthiness. swearing a false oath or perjury was also punishable by loss of one's hand or half one's wergeld. a lord denying justice, as by upholding an evildoing thegn of his, had to pay s. to the king for his disobedience. furthermore, if a lord protected a theow of his who had stolen, he had to forfeit the theow and pay his wer, for the first offense, and he was liable for all he property, for subsequent offenses. there was a bot for anyone harboring a convicted offender. if anyone failed to attend the gemot thrice after being summoned, he was to pay the king a fine for his disobedience. if he did not pay this fine or do right, the chief men of the burh were to ride to him, and take all his property to put into surety. if he did not know of a person who would be his surety, he was to be imprisoned. failing that, he was to be killed. but if he escaped, anyone who harbored him, knowing him to be a fugitive, would be liable pay his wer. anyone who avenged a thief without wounding anyone, had to pay the king s. as wite for the assault. "and if anyone is so rich or belongs to so powerful a kindred, that he cannot be restrained from crime or from protecting and harboring criminals, he shall be led out of his native district with his wife and children, and all his goods, to any part of the kingdom which the king chooses, be he noble or commoner, whoever he may be - with the provision that he shall never return to his native district. and henceforth, let him never be encountered by anyone in that district; otherwise he shall be treated as a thief caught in the act." this lawsuit between a son and his mother over land was heard at a shire meeting: "here it is declared in this document that a shire meeting sat at aylton in king cnut's time. there were present bishop aethelstan and earl ranig and edwin, the earl's son, and leofwine, wulfsige's son, and thurkil the white; and tofi the proud came there on the king's business, and bryning the sheriff was present, and aethelweard of frome and leofwine of frome and godric of stoke and all the thegns of herefordshire. then edwin, enneawnes son, came traveling to the meeting and sued his own mother for a certain piece of land, namely wellington and cradley. then the bishop asked whose business it was to answer for his mother, and thurkil the white replied that it was his business to do so, if he knew the claim. as he did not know the claim, three thegns were chosen from the meeting [to ride] to the place where she was, namely at fawley, and these were leofwine of frome and aethelsige the red and winsige the seaman, and when they came to her they asked her what claim she had to the lands for which her son was suing her. then she said that she had no land that in any way belonged to him, and was strongly incensed against her son, and summoned to her kinswoman, leofflaed, thurkil's wife, and in front of them said to her as follows: 'here sits leofflaed, my kinswoman, to whom, after my death, i grant my land and my gold, my clothing and my raiment and all that i possess.' and then she said to the thegns: 'act like thegns, and duly announce my message to the meeting before all the worthy men, and tell them to whom i have granted my land and all my property, and not a thing to my own son, and ask them to be witnesses of this.' and they did so; they rode to the meeting and informed all the worthy men of the charge that she had laid upon them. then thurkil the white stood up in the meeting and asked all the thegns to give his wife the lands unreservedly which her kinswoman had granted her, and they did so. then thurkil rode to st. aethelbert's minister, with the consent and cognizance of the whole assembly, and had it recorded in a gospel book." courts controlled by lords of large private estates had various kinds of jurisdiction recognized by the king: sac and soke [possession of legal powers of execution and profits of justice held by a noble or institution over inhabitants and tenants of the estate, exercised through a private court], toll [right to collect a payment on the sale of cattle and property] and team [right to hold a court to determine the honesty of a man accused of illegal possession of cattle], infangenetheof [the authority to judge and to hang and take the chattels of a thief caught on the property], and utfangenetheof [the authority to judge and to hand and take the chattels of a thief dwelling out of his liberty, and committing theft without the same, if he were caught within the lord's property]. some lords were even given jurisdiction over breach of the royal peace, ambush and treacherous manslaughter, harboring of outlaws, forced entry into a residence, and failure to answer a military summons. often this court's jurisdiction overlapped that of the hundred court and sometimes a whole hundred had passed under the jurisdiction of an abbot, bishop, or earl. a lord and his noble lady, or his steward, presided at this court. the law was administered here on the same principles as at the hundred court. judges of the leet of the court of a large private estate were chosen from the constables and four representatives selected from each community, village, or town. before a dispute went to the hundred court, it might be taken care of by the head tithing man, e.g. cases between vills, between neighbors, and some compensations and settlements, namely concerning pastures, meadows, harvests, and contests between neighbors. the vill [similar to village] was the smallest community for judicial purposes. there were several vills in a hundred. in london, the hustings court met weekly and decided such issues as wills and bequests and commerce matters. the folkmote of all citizens met three times a year. each ward had a leet court [for minor criminal matters]. the king and his witan decided the complaints and issues of the nobility and those cases which had not received justice in the hundred or shire court. the witan had a criminal jurisdiction and could imprison or outlaw a person. the witan could even compel the king to return any land he might have unjustly taken. specially punishable by the king was "oferhyrnesse": contempt of the king's law. it covered refusal of justice, neglect of summons to gemot or pursuit of thieves, disobedience to the king's officers, sounding the king's coin, accepting another man's dependent without his leave, buying outside markets, and refusing to pay peter's pence. the forests were peculiarly subject to the absolute will of the king. they were outside the common law. their unique customs and laws protected the peace of the animals rather than the king's subjects. only special officials on special commissions heard their cases. the form of oaths for compurgation were specified for theft of cattle, unsoundness of property bought, and money owed for a sale. the defendant denied the accusation by sweating that "by the lord, i am guiltless, both in deed and counsel, and of the charge of which ... accuses me." a compurgator swore that "by the lord, the oath is clean and unperjured which ... has sworn.". a witness swore that "in the name of almighty god, as i here for ... in true witness stand, unbidden and unbought, so i with my eyes oversaw, and with my ears overheard, that which i with him say." if a theow man was guilty at the ordeal, he was not only to give compensation, but was to be scourged thrice, or a second geld be given; and be the wite of half value for theows. - - - chapter - - - - the times: - - william came from normandy to conquer england. he claimed that the former king, edward, the confessor, had promised the throne to him when they were growing up together in normandy, if edward became king of england and had no children. the conquerer's men and horses came in boats powered by oars and sails. the conquest did not take long because of the superiority of his military expertise to that of the english. he organized his army into three groups: archers with bows and arrows, horsemen with swords and stirrups, and footmen with hand weapons. each group played a specific role in a strategy planned in advance. the english army was only composed of footmen with hand weapons such as spears and shields. they fought in a line holding up their shields to overlap each other and form a shieldwall. the defeat of the english was thought to have been presaged by a comet. at westminster, he made an oath to defend god's holy churches and their rulers, to rule the whole people subject to him with righteousness and royal providence, to enact and hold fast right law, and to utterly forbid rapine and unrighteous judgments. this was in keeping with the traditional oath of a new king. declaring the english who fought against him to be traitors, the conquerer declared their land confiscated. but he allowed those who were willing to acknowledge him to redeem their land by a payment of money. as william conquered the land of the realm, he parceled it out among the barons who fought with him so that each baron was given the holdings of an anglo-saxon predecessor, scattered though they were. the barons again made oaths of personal loyalty to him [fealty]. they agreed to hold the land as his vassals with future military services to him and receipt of his protection. they gave him homage by placing their hands within his and saying "i become your man for the tenement i hold of you, and i will bear you faith in life and member [limb] and earthly honor against all men". they held their land "of their lord", the king, by knight's service. the king had "enfeoffed" them [given them a fief: a source of income] with land. the theory that by right all land was the king's and that land was held by others only at his gift and in return for specified service was new to english thought. the original duration of a knight's fee until about was for his life; thereafter it was heritable. the word "knight" came to replace the word "thegn" as a person who received his position and land by fighting for the king. the exact obligation of knight's service was to furnish a fully armed horseman to serve at his own expense for forty days in the year. this service was not limited to defense of the country, but included fighting abroad. the baron led his own knights under his banner. the foot soldiers were from the fyrd or were mercenaries. every free man was sworn to join in the defense of the king, his lands and his honor, within england and without. the saxon governing class was destroyed. the independent power of earls, who had been drawn from three great family houses, was curtailed. most died or fled the country. some men were allowed to redeem their land by money payment if they showed loyalty to the conquerer. well-born women crowded into nunneries to escape norman violence. the people were deprived of their most popular leaders, who were excluded from all positions of trust and profit, especially all the clergy. the earldoms became fiefs instead of magistracies. the conquerer was a stern and fierce man and ruled as an autocrat by terror. whenever the people revolted or resisted his mandates, he seized their lands or destroyed the crops and laid waste the countryside and so that they starved to death. his rule was strong, resolute, wise, and wary because he had learned to command himself as well as other men. he was not arbitrary or oppressive. the conquerer had a strict system of policing the nation. instead of the anglo-saxon self-government throughout the districts and hundreds of resident authorities in local courts, he aimed at substituting for it the absolute rule of the barons under military rule so favorable to the centralizing power of the crown. he used secret police and spies and the terrorism this system involved. this especially curbed the minor barons and preserved the public peace. the english people, who outnumbered the normans by to , were disarmed. curfew bells were rung at : pm when everyone had to remain in their own dwellings on pain of death and all fires and candles were to be put out. this prevented any nightly gatherings, assassinations, or seditions. order was brought to the kingdom so that no man dare kill another, no matter how great the injury he had received. the conquerer extended the king's peace on the highways, i.e. roads on high ground, to include the whole nation. any individual of any rank could travel from end to end of the land unharmed. before, prudent travelers would travel only in groups of twenty. the barons subjugated the english who were on their newly acquired land. there began a hierarchy of seisin [rightful occupation] of land so that there could be no land without its lord. also, every lord had a superior lord with the king as the overlord or supreme landlord. one piece of land may be held by several tenures. for instance, a, holding by barons' service of the king, may enfeoff b, a church, to hold of him on the terms of praying for the souls of his ancestors, and b may enfeoff a freeman c to hold of the church by giving it a certain percentage of his crops every year. there were about barons who held land directly of the king. other fighting men were the knights, who were tenants or subtenants of a baron. knighthood began as a reward for valor on the field of battle by the king or a noble. the value of a knight's fee was s. [ pounds] per year. altogether there were about fighting men holding land. the essence of norman feudalism was that the land remained under the lord, whatever the vassal might do. the lord had the duty to defend the vassals on his land. the vassal owed military service to the lord and also the service of attending the courts of the hundred and the county [formerly "shire"], which were courts of the king, administering old customary law. they were the king's courts on the principle that a crime anywhere was a breach of the king's peace. the king's peace that had covered his residence and household had extended to places where he might travel, such as highways, rivers, bridges, churches, monasteries, markets, and towns, and then encompassed every place, replacing the general public peace. infraction of the king's peace incurred fines to the king. this feudal bond based on occupancy of land rather than on personal ties was uniform throughout the realm. no longer could a man choose his lord and transfer his land with him to a new lord. he held his land at the will of his lord, to be terminated anytime the lord decided to do so. a tenant could not alienate his land without permission of his lord. in later eras, tenancies would be held for the life of the tenant, and even later, for his life and those of his heirs. this uniformity of land organization plus the new requirement that every freeman take an oath of loyalty directly to the king to assist him in preserving his lands and honor and defending him against his enemies, which oath would supersede any oath to any other man, gave the nation a new unity. the king could call men directly to the fyrd, summon them to his court, and tax them without intervention of their lords. and the people learned to look to the king for protection from abuse by their lords. english villani, bordarii, cottarii, and servi on the land of the barons were subjugated into a condition of "villeinage" servitude and became "tied to the land" so that they could not leave the land without their lord's permission, except to go on a pilgrimage. the villeins formed a new bottom class as the population's percentage of slaves declined dramatically. they held their land of their lord, the baron. to guard against uprisings of the conquered people, the barons used villein labor to build about a hundred great stone castles, with moats and walls with towers around them, at easily defensible positions such as hilltops all over the nation. a castle could be built only with permission of the king. a typical castle had a stone building of about four floors [a keep] on a small, steep hill. later it also had an open area surrounded by a stone curtain-wall with towers at the corners. around the outside of the wall were ditches and banks and perhaps a moat. one traveled over these via a drawbridge let down at the gatehouse of the enclosing wall. on either side of the gatehouse were chambers for the guards. arrows could be shot through slits in the enclosing walls. inside the enclosed area might be stables, a granary, barracks for the soldiers, and workshops. the only winter feed was hay, for which the horses, breeding animals, milkcow, and workoxen had a priority over other animals. the bulk of the cattle were usually slaughtered and salted. the castle building typically was entered by an outer wood staircase to the guard room on the second floor. the first [ground] floor had a well and was used as a storehouse and/or dungeons for prisoners. the second floor had a two-storied great hall, with small rooms and aisles around it within the thick walls. there was also a chapel area on the second floor. there were small areas of the third floor which could be used for sleeping. the floors were wood and were reached by a spiral stone staircase in one corner of the building. sometimes there was a reservoir of water on an upper level with pipes carrying the water to floors below. each floor had a fireplace with a slanted flue going through the wall to the outside. there were latrines in the corner walls with a pit or shaft down the exterior of the wall, sometimes to the moat. furs and wool clothes were hung on the walls there in the summer to deter the moths. the first floor had only arrow slits in the walls, but the higher floors had small windows. some curtain-wall castles did not have a central building. in these, the hall was built along the inside of the walls, as were other continuous buildings. the kitchens and chapels were in the towers. lodgings were in buildings along the curtain-walls, or on several floors of the towers. the great hall was the main room of the castle. the hall was used for meals and meetings at which the lord received homages, recovered fees, and held the view of frankpledge [free pledge in latin], in which freemen agreed to be sureties for each other. at the main table, the lord and his lady sat on benches with backs or chairs. the table was covered first with a wool cloth that reached to the floor, and then by a smaller white linen cloth. everyone else sat on benches at trestle tables, which consisted of planks on trestles and could be dismantled, e.g. at night. over the main door were the family arms. on the walls were swords ready for instant use. on the upper parts of the walls could be fox skins and perhaps a polecat skin, and keepers' and huntsmen's poles. there were often hawk perches overhead. at the midday dinner, courses were ceremonially brought in to music, and ritual bows were made to the lord. the food at the head table was often tasted first by a servant as a precaution against poison. hounds, spaniels, and terriers lay near the hearth and cats, often with litters, nestled nearby. they might share in dinner, but the lord may keep a short stick near him to defend morsels he meant for himself. hunting, dove cotes, and carp pools provided fresh meat. fish was compulsory eating on fridays, on fast days, and during lent. cooking was done outside on an open fire, roasting on spits and boiling in pots. some spits were mechanized with a cogged wheel and a weight at the end of a string. other spits were turned by a long handle, or a small boy shielded from the heat by a wet blanket, or by dogs on a treadmill. underneath the spit was a dripping pan to hold the falling juices and fat. mutton fat was used for candles. bread, pies, and pastry dishes were baked in an oven: a hole in a fireproof stone wall fitted with an iron door, in which wood was first burnt to heat the oven walls. it could also be used for drying fruit or melting tallow. fruits were also preserved in honey. salt was stored in a niche in the wall near the hearth and put on the table in a salt cellar which became more elaborate over the years. salt was very valuable and gave rise to the praise of a man as the salt of the earth. costly imported spices such as cinnamon, cloves, nutmeg, ginger, pepper, and a small quantity of sugar were kept in chests. pepper was always on the table to disguise the taste of tainted meat. spices were tried for medicinal use. drinks included wine, ale, cider from apples, perry from pears, and mead. people carried and used their own knives. there were no forks. spoons were of silver or wood. people also ate with their fingers and washed their hands before and after meals. it was impolite to dig into the salt bowl with a knife not previously wiped on bread or napkin, which was linen. it was unmannerly to wipe one's knife or one's greasy fingers on the tablecloth or, to use the tablecloth to blow one's nose. feasts were stately occasions with costly tables and splendid apparel. there were practical jokes, innocent frolics, and witty verbal debating with repartee. they played chess, checkers, and various games with cards and dice. most people could sing and some could play the lute. lighting of the hall at night was by oil lamps or candles on stands or on wall fixtures. for outside activities, a lantern [a candle shielded by a metal cage with panels of finely shaved horn: lant horn] was used. the residence of the lord's family and guests was at a screened off area at the extreme end of the hall or on a higher floor. chests stored garments and jewels. iron keys and locks were used for chests and doors. the great bed had a wooden frame and springs made of interlaced rope or strips of leather. it was covered with a feather mattress, sheets, quilts, fur covers, and pillows. drapery around the bed kept out cold drafts and provided privacy. there was a water bowl for washing in the morning. a chamber pot was kept under the bed for nighttime use. hay was used as toilet paper. the lord's personal servants slept nearby on benches or trundle beds. most of the gentlemen servants slept communally in a "knight's chamber". the floor of the hall was strewn with straw, on which common folk could sleep at night. there were stools on which to sit. cup boards (boards on which to store cups) and chests stored spices and plate. one-piece iron shears were available to cut cloth. handheld spindles were used for weaving; one hand held the spindle [a small stick weighted at one end] while the other hand alternately formed the thread and wound it around the spindle. on the roofs there were rampart walks for sentry patrols and parapets from which to shoot arrows or throw things at besiegers. each tenant of the demesne of the king where he had a castle had to perform a certain amount of castle guard duty for its continuing defense. these knights performing castle-guard duty slept at their posts. bathing was done in a wooden tub located in the garden in the summer and indoors near the fire in winter. the great bed and tub for bathing were taken on trips with the lord. the entire household was of men, except for the lord's lady with a few lady companions; otherwise the entire household was of men. the ladies rode pillion [on a cushion behind the saddle] or in litters suspended between two horses. markets grew up outside castle walls. any trade on a lord's land was subject to "passage", a payment on goods passing through, "stallage", a payment for setting up a stall or booth in a market, and "pontage", a payment for taking goods across a bridge. the norman man was clean shaven on his face and around his ears and at the nape of the neck. his hair was short. he wore a long- sleeved under-tunic of linen or wool that reached to his ankles. over this the norman noble wore a tunic without sleeves, open at the sides, and fastened with a belt. over one shoulder was his cloak, which was fastened on the opposite shoulder by being drawn through a ring brooch and knotted. he wore tight thick cloth stockings to protect him from the mud and leather shoes. common men wore durable, but drab, wool tunics to the knee so as not to impede them in their work. they could roll up their stockings when working in the fields. a lady also wore a high-necked, long- sleeved linen or wool tunic fitted at the waist and laced at the side, but full in the skirt, which reached to her toes. she wore a jeweled belt, passed twice around her waist and knotted in front. her hair was often in two long braids, and her head and ears covered with a white round cloth held in place by a metal circlet like a small crown. its ends were wound around her neck. in winter, she wore over her tunic a cloak edged or lined with fur and fastened at the front with a cord. clothes of both men and ladies were brightly colored by dyes or embroidery. the norman knight wore an over-tunic of leather or heavy linen on which were sewn flat rings of iron and a conical iron helmet with nose cover. he wore a sword at his waist and a metal shield on his back, or he wore his sword and his accompanying retainers carried spear and shield. norman customs were adopted by the nation. as a whole, anglo-saxon men shaved their beards and whiskers from their faces, but they kept their custom of long hair flowing from their heads. but a few kept their whiskers and beards in protest of the normans. everyone had a permanent surname indicating parentage, place of birth, or residence, such as field, pitt, lane, bridge, ford, stone, burn, church, hill, brook, green. other names came from occupations such as shepherd, carter, parker, fowler, hunter, forester, smith. still other came from personal characteristics such as black, brown, and white, short, round, and long. some took their names from animals such as wolf, fox, lamb, bull, hogg, sparrow, crow, and swan. others were called after the men they served, such as king, bishop, abbot, prior, knight. a man's surname was passed on to his son. those few coerls whose land was not taken by a baron remained free and held their land "in socage" and became known as sokemen. they were not fighting men, and did not give homage, but might give fealty, i.e. fidelity. many free sokemen were caught up in the subjugation by baron landlords and were reduced almost to the condition of the unfree villein. the services they performed for their lords were often indistinguishable. they might also hold their land by villein tenure, although free as a person with the legal rights of a freeman. the freeman still had a place in court proceedings which the unfree villein did not. great stone cathedrals were built in fortified towns for the conquerer's norman bishops, who replaced the english bishops. most of the existing and new monasteries functioned as training grounds for scholars, bishops, and statesmen rather than as retreats from the world's problems to the security of religious observance. the number of monks grew as the best minds were recruited into the monasteries. the conquerer made the church subordinate to him. bishops were elected only subject to the king's consent. the bishops had to accept the status of barons. homage was exacted from them before they were consecrated, and fealty and an oath afterward. the conquerer imposed knight's service on bishoprics, abbeys, and monasteries, which was usually commuted to a monetary amount. bishops had to attend the king's court. bishops could not leave the realm without the king's consent. no royal tenant or royal servant could be excommunicated, nor his lands be placed under interdict, without the king's consent. interdict could demand, for instance, that the church be closed and the dead buried in unconsecrated ground. no church rules could be made without his agreement to their terms. no letters from the pope could be received without the king's permission. the archbishop of canterbury was still recognized as a primary advisor to the king. over the years, the selection for this office frequently became a source of contention among king, pope, and clergy. men continued to give land to the church for their souls, such as this grant which started the town of sandwich: "william, king of the english, to lanfranc the archbishop and hugoni de montfort and richard son of earl gilbert and haimo the sheriff and all the thegns of kent, french and english, greeting. know ye that the bishop of bayeux my brother for the love of god and for the salvation of my soul and his own, has given to st. trinity all houses with their appurtenances which he has at sandwich and that he has given what he has given by my license." many private owners of churches gave them to cathedrals or monastic communities, partly to ensure their long term survival, and partly because of church pressure. when the land was all divided out, the barons had about / of it and the church about / . most of the barons had been royal servants. the king retained about / , including forests for hunting, for himself and his family and household, on which he built many royal castles and hundreds of manor [large private estate headed by a lord] houses throughout the nation. he built the massive white tower in london. it was tall with four turrets on top, and commanded a view of the river and bridge, the city and the surrounding countryside. the only windows were slits from which arrows could be shot. on the fourth and top floor was the council chamber and the gallery of the chapel. on the third floor was the banqueting hall, the sword room, and the chapel. the king and his household slept in apartments on these upper floors. stairs went up to the gateway entrance on the second floor, which were hidden by a wall. the garrison's barracks were on the first floor (ground floor). any prisoners were kept in cells at a level below the first floor. the other castles were often built at the old fortification burhs of alfred. each had a constable in charge, who was a baron. barons and earls had castle-guard duty in the king's castles. the conquerer was constantly moving about the land among his and his barons' castles, where he met with his magnates and conducted public business, such as deciding disputes about holding of land. near his own castles and other of his property, he designated many areas as royal hunting forests. anyone who killed a deer in these forests was mutilated, for instance by blinding. people living within the boundaries of the designated forestland could no longer go into nearby woods to get meat or honey, dead wood for firing, or live wood for building. swineherds could no longer drive pigs into these woods to eat acorns they beat down from oak trees. making clearings and grazing livestock in the designated forestland were prohibited. most of the nation was either wooded or bog at this time. london was a walled town of one and two story houses made of mud, twigs, and straw, with thatched roofs. it included a bundle of communities, townships, parishes, and lordships. there were churches, a goods market, a fish market, quays on the river, and a bridge over the river. streets probably named by this time include bread street, milk street, honey lane, wood street, and ironmonger lane. fairs and games were held outside the town walls in a field called "smithfield". the great citizens had the land qualifications of knights and ranked as barons on the conquerer's council. the freemen were a small percentage of london's population. there was a butchers' guild, a pepperers' guild, a goldsmiths' guild, the guild of st. lazarus, which was probably a leper charity (of which there were many in the s and s), the pilgrims' guild, which helped people going on pilgrimages, and four bridge guilds, probably for keeping the wooden london bridge in repair. men told the time by sundials, some of which were portable and could be carried in one's pocket. london could defend itself, and a ringing of the bell of st. paul's church could shut every shop and fill the streets with armed horsemen and soldiers led by a soldier portreeve. across the thames from london on its south side was southwark, a small trading and fishing settlement. the conquerer did not interfere with landholding in london, but recognized its independence as a borough in this writ: "william the king greets william, bishop of london, and gosfrith the portreeve, and all the burgesses [citizens] of london friendly. know that i will that you be worthy of all the laws you were worthy of in the time of king edward. and i will that every child shall be his father's heir after his father's day. and i will not suffer any man to do you wrong. god preserve you." the norman word "mayor" replaced "portreeve". so london was not subjected to the norman feudal system. it had neither villeins nor slaves. whenever kings asserted authority over it, the citizens reacted until the king "granted" a charter reaffirming the freedoms of the city and its independence. under pressure from the ecclesiastical judges, the conquerer replaced the death penalty by that of the mutilation of blinding, chopping off hands, and castrating offenders. castration was the punishment for rape. but these mutilations usually led to a slow death by gangrene. the normans used the anglo-saxon concepts of jurisdictional powers. thus when the conquerer confirmed "customs" to the abbot of ely, these were understood to include the following: ) sac and soke - the right to hold a court of private jurisdiction and enjoy its profits, ) toll - a payment in towns, markets, and fairs for goods and chattel bought and sold, ) team - persons might be vouched to warranty in the court, the grant of which made a court capable of hearing suits arising from the transfer of land, ) infangenthef - right of trying and executing thieves on one's land, ) hamsocne, ) grithbrice - violation of the grantees' special peace, for instance that of the sheriff, ) fightwite - fine for a general breach of the peace, ) fyrdwite - fine for failure to appear in the fyrd. every shire, now called "county", had at least one burh, or defensible town. kings had appointed a royal moneyer in each burh to mint silver coins such as pennies for local use. on one side was the king's head in profile and on the other side was the name of the moneyer. when a new coinage was issued, all moneyers had to go to london to get the new dies. the conquerer's head faced frontally on his dies, instead of the usual profile used by former kings. the conquerer held and presided over his council three times a year, as was the custom, at easter, christmas, and whitsuntide, which coincided with the great christian festivals. this was an advisory council and consisted of the conquerer's wife and sons, earls, barons, knights, officers of the king's household, archbishops, and bishops. it replaced the witan of wise men. it dealt with fundamental matters of law, state, war, and church. its functions were largely ceremonial. earldoms and knighthoods were conferred and homages to the king were witnessed. bishops were nominated. attendance at the council, like attendance at courts, was regarded as a burden rather than a privilege. the conquerer's will was the motive force which under lay all the council's action. when it was administering royal justice, it was called the royal court.. the justiciar was the head of all legal matters and he or the conquerer's wife represented the king at the royal court in his absence from the realm. the chamberlain was a financial officer of the household; his work was rather that of auditor or accountant. the chancellor headed the chancery and the chapel. other household offices were steward, butler, constable, and marshall. the treasurer was responsible for the collection and distribution of revenue and was the keeper of the royal treasure at the palace at winchester. he was also an important member of the household and sat in the exchequer at westminster, where he received the accounts of the sheriffs. the exchequer was composed of the justiciar as head, the chancellor, the constable, two chamberlains, the marshall and other experienced councilors. the word "exchequer" came from the chequered cloth on the table used to calculate in roman numerals the amount due and the amount paid. the word "calculate" derives from the word "calculi", meaning pebbles. it was a kind of abacus. the exchequer received yearly from the sheriffs of the counties taxes, fines, treasure trove, goods from wrecks, deodands, and movable property of felons, of persons executed, of fugitives, and of outlaws due to the crown. the conqueror presided yearly over feasts involving several thousand guests at westminster hall, which was feet by feet with a high ceiling, the largest hall in england. the conquerer's reign was a time of tentative expedients and simple solutions. he administered by issuing writs with commands or prohibitions. these were read aloud by the sheriffs in the county courts and other locations. administration was by the personal servants of his royal household, such as the chancellor, chamberlain, constable, marshals, steward, and butler. the language of government changed to latin. the chancellor was from the clergy and supervised the writers and clerks, who were literate, and appended the great seal before witnesses to documents. he also headed the staff of the royal chapel. the chamberlain was a financial officer who audited and accounted. the constable was responsible for supplies for the knights of the royal household. he also supervised the care of horses, hounds, hawks, and huntsmen, houndsmen, and foresters. the marshals came from less important families than the constable and they preserved order in the king's hall and recorded expenditures of the household officers on tallies. the steward was a great baron whose duties were chiefly ceremonial, such as placing the dishes before the king at banquets. sheriffs became powerful figures as the primary agents for enforcing royal edicts. there was no longer supervision of them by earls nor influence on them by bishops. they were customarily prominent barons. they collected the royal taxes, executed royal justice, and presided over and controlled the hundred and county courts. they were responsible for remitting a certain sum annually. if a sheriff received more than necessary, he retained the difference as his lawful profit of office. if he received less than necessary, he had to make up the difference from his own pocket. before rendering this account, he paid the royal benefactions to religious houses, provided for the maintenance of stock on crown lands, paid for the costs of provisions supplied to the court, and paid for traveling expenses of the king and his visitors. the payments were initially paid in kind: e.g. grain, cattle, horses, hounds, and hawks. sheriffs also took part in the keeping of castles and often managed the estates of the king. most royal writs were addressed to the sheriff and county courts. they also led the county militia in time of war or rebellion. at times, a sheriff usurped royal rights, used royal estates for his own purposes, encroached on private land and rights, extorted money, and collected revenues only for his own pockets. over the centuries, there was much competition for the authority to select the king, e.g. by the king, the county court, the barons, and the exchequer. there was also much pressure to limit his term to one year. also, the powers of the sheriffs slowly declined. royal income came from customary dues, profits of coinage and of justice, and revenues from the king's own estates. for war, there was no change in the custom that a man with five hides of land was required to furnish one heavy armed horseman for forty days service in a year. the fyrd was retained. a threat of a viking invasion caused the conquerer to reinstate the danegeld tax at s. per hide, which was three times its old rate. (the price of an ox was still about d.) to impose this tax uniformly, he sent commissioners to conduct surveys by sworn verdicts of appointed groups of local men. a detailed survey of land holdings and the productive worth of each was made in . the english called it the "doomsday book" because there was no appeal from it. the survey revealed, for instance, that one estate had "on the home farm five plough teams: there are also villeins and cotters with teams among them. there is a mill worth s. a year and one fishery, a church and four acres of meadow, wood for pigs and two stone quarries, each worth s. a year, and two nests of hawks in the wood and slaves." this estate was deemed to be worth s. a year. laxton "had carucates of land [assessed] to the geld. [there is] land for ploughs. there walter, a man of [the lord] geoffrey alselin's has plough and villeins and bordars [a bordar had a cottage and a small amount land in return for supplying small provisions to his lord] having ploughs and serfs and female serf and acres of meadow. wood [land] for pannage [foraging by pigs] league in length and half a league in breadth. in king edward's time it was worth pounds; now [it is worth] pounds." ilbert de laci has now this land, where he has twelve ploughs in the demesne; and forty-eight villani, and twelve bordars with fifteen ploughs, and three churches and three priests, and three mills of ten shillings. wood pastures two miles long, and one broad. the whole manor five miles long and two broad. value in king edward's time sixteen pounds, the same now. that manor of the town of coventry which was individually held was that of the countess of coventry, who was the wife of the earl of mercia. "the countess held in coventry. there are hides. the arable land employs ploughs. in the demesne lands there are ploughs and bondmen. there are villeins and bordars with ploughs. the mill there pay[s] shillings. the woodlands are miles long and the same broad. in king edward's time and afterwards, it was worth pounds [ s.], now only pounds by weight. these lands of the countess godiva nicholas holds to farm of the king." the survey shows a few manors and monasteries owned a salthouse or saltpit in the local saltworks, from which they were entitled to obtain salt. in total there were about , villani [former coerls regarded as customary, irremovable cultivator tenants]; , bordarii; , cotarii and cotseti [held land by service of labor or rent paid in produce], and , servi [landless laborers]. there are no more theows. in the nation, there was a total of about , servi [landless laborers], over , borderii, nearly , coatarii and cotseti [held land or houses by service of labor or rent paid in produce], and nearly , villani. this survey resulted in the first national tax system of about s. per hide of land. the survey also provided the conquerer with a summary of customs of areas. for instance, in oxfordshire, "anyone breaking the king's peace given under his hand and seal to the extent of committing homicide shall be at the king's mercy in respect of his life and members. that is if he be captured. and if he cannot be captured, he shall be considered as an outlaw, and anyone who kills him shall have all his possessions. the king shall take the possessions of any stranger who has elected to live in oxford and who dies in possession of a house in that town, and without any kinfolk. the king shall be entitled to the body and the possessions of any man who kills another within his own court or house excepting always the dower of his wife, if he has a wife who has received dower. the courts of the king and barons became schools of chivalry wherein seven year old noble boys became as pages or valets, wore a dagger and waited upon the ladies of the household. at age fourteen, they were advanced to squires and admitted into more familiar association with the knights and ladies of the court. they perfected their skills in dancing, riding, fencing, hawking, hunting, jousting, and engaged in team sports in which the goal was to put the other side to rout. they learned the knightly art of war. enemy fighters were to be taken and held for ransom rather than killed. those engaging in rebellion were to be pardoned and restored to some or all of their lands and titles. lords' sons could be mutually exchanged with an enemy's as security for peace. after achieving knighthood, a man usually selected a wife from the court at which he grew up. parents tried to send their daughters to a household superior in social status not only to learn manners, but to make a good marriage. a girl who did not marry was often sent to a nunnery; a dowry was necessary before her acceptance. the following incidents of land tenure began (but were not firmly established until the reign of henry ii). each tenant, whether baron or subtenant, was to pay an "aid" in money for ransom if his lord was captured in war, for the knighthood of his lord's eldest son, and for the marriage of his lord's eldest daughter. the aid was theoretically voluntary. land could be held by an heir only if he could fight. the eldest son began to succeed to the whole of the lands in all military tenures. younger sons of great houses became bishops. an heir of a tenant had to pay a heavy "relief" on succession to his estate. the relief replaced the heriot. if there was a delay in proving heirship or paying relief, the lord would hold the land and receive its income in the meantime, often a year. if an heir was still a minor or female, he or she passed into his lord's wardship, in which the lord had guardianship of the heir and possession of the estate, with all its profits. the mother was not made a minor's guardian. no longer was the estate protected by the minor's kin as his birthright. a female heir was expected to marry a man acceptable to the lord. the estate of an heiress and her land was generally sold to the highest bidder. if there were no heirs, the land escheated to the lord. if a tenant committed felony, his land escheated to his lord. the word "felony" came from the latin word meaning "to deceive" and referred to the feudal crime of betraying or committing treachery against one's lord. astrologers resided with the families of the barons. people went to fortune tellers' shops. there was horse racing, steeple races, and chess for recreation. girls had dolls; boys had toy soldiers, spinning tops, toy horses, ships, and wooden models. the state of medicine is indicated by this medical advice brought to the nation by william's son after treatment on the continent: "if thou would have health and vigor shun cares and avoid anger. be temperate in eating and in the use of wine. after a heavy meal rise and take the air sleep not with an overloaded stomach and above all thou must respond to nature when she calls." the conquerer allowed jewish traders to follow him from normandy and settle in separate sections of the main towns. then engaged in long distance trade, money changing, and money lending. they loaned money for interest for the building of castles and cathedrals. christians were not allowed by the church to engage in this usury. the jews could not become citizens nor could they have standing in the local courts. instead, a royal justiciar secured justice for them. they could practice their own religion. william the conquerer was succeeded as king by his son william ii (rufus), who transgressed many of the customs of the nation to get more money for himself. he was killed by an arrow of a fellow hunter while they and william's younger brother henry were hunting together in a crown forest. henry then became king. - the law - the norman conquerors brought no written law, but affirmed the laws of the nation. two they especially enforced were: anyone caught in the act of digging up the king's road, felling a tree across it, or attacking someone so that his blood spilled on it shall pay a fine to the king. all freemen shall have a surety who would hand him over to justice for his offenses or pay the damages or fines due. if an accused man fled, his surety would have a year to find him to obtain reimbursement. the conquerer proclaimed that: no cattle shall be sold except in towns and before three witnesses. for the sale of ancient chattels, there must be a surety and a warrantor. no man shall be sold over the sea. (this ended the slave trade at the port of bristol.) the death penalty for persons tried by court is abolished. - judicial procedure - "ecclesiastical" courts were created for bishops to preside over cases concerning the cure of souls and criminal cases, in which the ordeal was used. when the conquerer did not preside over this court, an appeal could be made to him. the hundred and county courts now sat without clergy and handled only "civil" cases. they were conducted by the king's own appointed sheriff. only freemen and not bound villeins had standing in this court. they continued to transact their business in the english language. the local jurisdictions of thegns who had grants of sac and soke or who exercised judicial functions among their free neighbors were now called "manors" under their new owners, who conducted a manor court. the conquerer's royal court was called the "curia regis". when the conquerer wished to determine the national laws, he summoned twelve elected representatives of each county to declare on oath the ancient lawful customs and law as they existed in the time of the popular king edward the confessor. the recording of this law was begun. a person could spend months trying to catch up with the royal court to present a case. sometimes the conquerer sent the justiciar or commissioners to hold his royal court in the various districts. the commissioner appointed groups of local men to give a collective verdict upon oath for each trial he conducted. the conquerer allowed, on an ad hoc basis, certain high-level people such as bishops and abbots and those who made a large payment, to have land disputes decided by an inquiry of recognitors. besides royal issues, the curia regis heard appeals from lower court decisions. it used english, norman, feudal, roman, and canon law legal principles to reach a decision, and was flexible and expeditious. a dispute between a norman and an english man over land or a criminal act could be decided by trial by combat [battle]. each combatant first swore to the truth of his cause and undertook to prove by his body the truth of his cause by making the other surrender by crying "craven" [craving forgiveness]. the combatants used weapons like pickaxes and shields. presumably the man in the wrong would not fight as well because he was burdened with a guilty conscience. although this trial was thought to reflect god's will, it favored the physically fit and adept person. after losing the trial by combat, the guilty person would be punished appropriately. london had its own traditions. all london citizens met at its folkmote, which was held three times a year to determine its public officers, to raise matters of public concern, and to make ordinances. its criminal court had the power of outlawry as did the county courts. trade, land, and other civil issues were dealt with by the hustings court, which met every monday in the guildhall. the city was divided into wards, each of which was under the charge of an elected alderman [elder man]. (the election was by a small governing body and the most wealthy and reputable men and not a popular election.) the aldermen had special knowledge of the law and a duty to declare it at the hustings court. each alderman also conducted wardmotes in his ward and decided criminal and civil issues between its residents. within the wards were the guilds of the city. the normans, as foreigners, were protected by the king's peace. the entire hundred was the ultimate surety for murder and would have to pay a "murdrum" fine of pounds [ marks] for the murder of any norman, if the murderer was not apprehended by his lord within a few days. the reaction to this was that the murderer mutilated the corpse to make identification of ethnicity impossible. so the conquerer ordered that every murder victim was assumed to be norman unless proven english. this began a court custom in murder cases of first proving the victim to be english. the royal court decided this case: "at length both parties were summoned before the king's court, in which there sat many of the nobles of the land of whom geoffrey, bishop of coutances, was delegated by the king's authority as judge of the dispute, with ranulf the vicomte, neel, son of neel, robert de usepont, and many other capable judges who diligently and fully examined the origin of the dispute, and delivered judgment that the mill ought to belong to st. michael and his monks forever. the most victorious king william approved and confirmed this decision." - - - chapter - - - - the times: - - king henry i, son of william the conquerer, furthered peace between the normans and native english by his marriage to a niece of king edward the confessor called matilda. she married him on condition that he grant a charter of rights undoing some practices of the past reigns of william i and william ii. peace was also furthered by the fact that henry i had been born in england and english was his native tongue. the private wars of lords were now replaced by less serious mock battles. henry was a shrewd judge of character and of the course of events, cautious before taking action, but decisive in carrying out his plans. he was faithful and generous to his friends. he showed a strong practical element of calculation and foresight. although illiterate, he was intelligent and a good administrator. he had an efficient intelligence gathering network and an uncanny knack of detecting hidden plans before they became conspiratorial action. he made many able men of inferior social position nobles, thus creating a class of career judges and administrators in opposition to the extant hereditary aristocracy. he loved books and built a palace at oxford to which he invited scholars for lively discussion. euclid's "elements" ", which deduced from axioms the properties of lines, circles, and spheres, was introduced into england. queen matilda served as regent of the kingdom in henry's absence, as william's queen had for him. both queens received special coronation apart from their husbands; they held considerable estates which they administered through their own officers, and were frequently composed of escheated honors. matilda was learned and a literary patron. she founded an important literary and scholastic center. her compassion was great and her charities extensive. in london she founded several almshouses and a caregiving infirmary for lepers. these were next to small monastic communities. she also had new roads and bridges built. henry issued charters restoring customs which had been subordinated to royal impositions by previous kings, which set a precedent for later kings. his coronation charter describes certain property rights he restored after the oppressive reign of his brother. "henry, king of the english, to samson the bishop, and urse of abbetot, and to all his barons and faithful vassals, both french and english, in worcestershire, greeting. [ .] know that by the mercy of god and by the common counsel of the barons of the whole kingdom of england i have been crowned king of this realm. and because the kingdom has been oppressed by unjust exactions, i now, being moved by reverence towards god and by the love i bear you all, make free the church of god; so that i will neither sell nor lease its property; nor on the death of an archbishop or a bishop or an abbot will i take anything from the demesne of the church or from its vassals during the period which elapses before a successor is installed. i abolish all the evil customs by which the kingdom of england has been unjustly oppressed. some of those evil customs are here set forth. [ .] if any of my barons or of my earls or of any other of my tenants shall die his heir shall not redeem his land as he was wont to do in the time of my brother [william ii (rufus)], but he shall henceforth redeem it by means of a just and lawful 'relief`. similarly the men of my barons shall redeem their lands from their lords by means of a just and lawful 'relief`. [ .] if any of my barons or of my tenants shall wish to give in marriage his daughter or his sister or his niece or his cousin, he shall consult me about the matter; but i will neither seek payment for my consent, nor will i refuse my permission, unless he wishes to give her in marriage to one of my enemies. and if, on the death of one of my barons or of one of my tenants, a daughter should be his heir, i will dispose of her in marriage and of her lands according to the counsel given me by my barons. and if the wife of one of my tenants shall survive her husband and be without children, she shall have her dower and her marriage portion [that given to her by her father], and i will not give her in marriage unless she herself consents. [ .] if a widow survives with children under age, she shall have her dower and her marriage portion, so long as she keeps her body chaste; and i will not give her in marriage except with her consent. and the guardian of the land, and of the children, shall be either the widow or another of their relations, as may seem more proper. and i order that my barons shall act likewise towards the sons and daughters and widows of their men. [ .] i utterly forbid that the common mintage [a forced levy to prevent loss to the king from depreciation of the coinage], which has been taken from the towns and counties, shall henceforth be levied, since it was not so levied in the time of king edward [the confessor]. if any moneyer or other person be taken with false money in his possession, let true justice be visited upon him. [ .] i forgive all pleas and all debts which were owing to my brother [william ii], except my own proper dues, and except those things which were agreed to belong to the inheritance of others, or to concern the property which justly belonged to others. and if anyone had promised anything for his heritage, i remit it, and i also remit all 'reliefs' which were promised for direct inheritance. [ .] if any of my barons or of my men, being ill, shall give away or bequeath his movable property, i will allow that it shall be bestowed according to his desires. but if, prevented either by violence or through sickness, he shall die intestate as far as concerns his movable property, his widow or his children, or his relatives or one his true men shall make such division for the sake of his soul, as may seem best to them. [ .] if any of my barons or of my men shall incur a forfeit, he shall not be compelled to pledge his movable property to an unlimited amount, as was done in the time of my father [william i] and my brother; but he shall only make payment according to the extent of his legal forfeiture, as was done before the time of my father and in the time of my earlier predecessors. nevertheless, if he be convicted of breach of faith or of crime, he shall suffer such penalty as is just. [ .] i remit all murder fines which were incurred before the day on which i was crowned king; and such murder fines as shall now be incurred shall be paid justly according to the law of king edward [by sureties]. [ .] by the common counsel of my barons i have retained the forests in my own hands as my father did before me. [ .] the knights, who in return for their estates perform military service equipped with a hauberk [long coat] of mail, shall hold their demesne lands quit of all gelds [money payments] and all work; i make this concession as my own free gift in order that, being thus relieved of so great a burden, they may furnish themselves so well with horses and arms that they may be properly equipped to discharge my service and to defend my kingdom. [ .] i establish a firm peace in all my kingdom, and i order that this peace shall henceforth be kept. [ .] i restore to you the law of king edward together with such emendations to it as my father [william i] made with the counsel of his barons. [ .] if since the death of my brother, king william [ii], anyone shall have seized any of my property, or the property of any other man, let him speedily return the whole of it. if he does this no penalty will be exacted, but if he retains any part of it he shall, when discovered, pay a heavy penalty to me. witness: maurice, bishop of london; william, bishop-elect of winchester; gerard, bishop of herefore; henry the earl; simon the earl; walter giffard; robert of montfort-sur-risle; roger bigot; eudo the steward; robert, son of haimo; and robert malet. at london when i was crowned. farewell." henry took these promises seriously, which resulted in peace and justice. royal justice became a force to be reckoned with by the multiplication of justices. henry had a great respect for legality and the forms of judicial action. he became known as the "lion of justice". the payment of queen's gold, that is of a mark of gold to the queen out of every hundred marks of silver paid, in the way of fine or other feudal incident, to the king, probably dates from henry i's reign. a woman could inherit a fief if she married. the primary way for a man to acquire control of land was to marry an heiress. if a man were in a lower station than she was, he had to pay for his new social status as well as have royal permission. a man could also be awarded land which had escheated to the king. if a noble woman wanted to hold land in her own right, she had to make a payment to the king. many widows bought their freedom from guardianship or remarriage from the king. women whose husbands were at war also ran the land of their husbands. barons were lords of large holdings of farmland called "manors". many of the lesser barons left their dark castles to live in semi- fortified stone houses, which usually were of two rooms with rug hangings for drafts, as well as the sparse furniture that had been common to the castle. there were shuttered windows to allow in light, but which also let in the wind and rain when open. the roof was of thatch or narrow overlapping wood shingles. the stone floor was strewn with hay and there was a hearth near the center of the floor, with a louvered smoke hole in the timber roof for escape of smoke. there were barns for grain and animals. beyond this area was a garden, orchard, and sometimes a vineyard. the area was circumscribed by a moat over which there was a drawbridge to a gatehouse. the smaller room was the lord and lady's bedroom. it had a canopied bed, chests for clothing, and wood frames on which clothes could be hung. life on the manor revolved around the larger room, or hall, where the public life of the household was passed. there, meals were served. the daily diet typically consisted of milk, soup, porridge, fish, vegetables, and bread. open hospitality accompanied this communal living. there was little privacy. manor household villeins carried the lord's sheaves of grain to the manor barn, shore his sheep, malted his grain, and chopped wood for his fire. at night some slept on the floor of the hall. others, who were cottars and bordars, had their own dwellings nearby. the manor house of lesser lords or knights was still built of wood, although it often had a stone foundation. about % of the land was arable land, about % was common pasture land (for grazing only) or meadow land (near a stream or river and used for hay or grazing), and about % was woodland. there were these types of land and wasteland on each manor. the arable land was allotted to the villeins in strips to equalize the best and worst land and their distance from the village where the villeins lived. there was three-way rotation of wheat or rye, oats or barley, and fallow land. cows, pigs, sheep, and fowl were kept. the meadow was allocated for hay for the lord's household and each villein's. the villeins held land of their lord for various services such as agricultural labor or raising domestic animals. the villeins worked about half of their time on their lord's fields [his demesne land], which was about a third of the farmland. this work was primarily to gather the harvest and to plough with oxen, using a yoke over their shoulders, and to sow in autumn and lent. they threshed grain on barn floors with flails cut from holly or thorn, and removed the kernels from the shafts by hand. work lasted from sunrise to sunset and included women and children. the older children could herd geese and pigs, and set snares for rabbits. the young children could gather nuts and berries in season and other wild edibles, and could pick up little tufts of wool shed by sheep. the old could stay in the hut and mind the children, keep the fire going and the black pot boiling, sew, spin, patch clothes, and cobble shoes. the old often suffered from rheumatism. many people had bronchitis. many children died of croup [inflammation of the respiratory passages]. life expectancy was probably below thirty-five. the villein retained his customary rights, his house and land and rights of wood and hay, and his right in the common land of his township. customary ways were maintained. the villeins of a manor elected a reeve to communicate their interests to their lord, usually through a bailiff, who directed the labor. sometimes there was a steward in charge of several of a lord's manors, who also held the manorial court for the lord. the steward held his land of the lord by serjeanty, which was a specific service to the lord. other serjeanty services were carrying the lord's shield and arms, finding attendants and esquires for knights, helping in the lord's hunting expeditions, looking after his hounds, bringing fuel, doing carpentry, and forging irons for ploughs. the woodward preserved the timber. the messer supervised the harvesting. the hayward removed any fences from the fields after harvest to allow grazing by cattle and sheep. the coward, bullard, and calvert tended the cows, bulls, and calves; the shepherd, the sheep; and the swineherds the pigs. the ponder impounded stray stock. there were varieties of horses: war horses, riding horses, courier horses, pack horses, and plough horses. the majority of manors were coextensive with a single village. the villeins lived in the village in one-room huts enclosed by a wood fence, hedge, or stone wall. in this yard was a garden of onions, leeks, mustard, peas, beans, parsley, garlic, herbs, and cabbage and apple, pear, cherry, quince, and plum trees, and beehives. the hut had a high-pitched roof thatched with reeds or straw and low eaves reaching almost to the ground. the walls are built of wood-framing overlaid with mud or plaster. narrow slits in the walls serve as windows, which have shutters and are sometimes covered with coarse cloth. the floor is dirt and may be covered with straw or rushes for warmth, but usually no hearth. in the middle is a wood fire burning on a hearthstone, which was lit by making a spark by striking flint and iron together. the smoke rose through a hole in the roof. at one end of the hut was the family living area, where the family ate on a collapsible trestle table with stools or benches. their usual food was beans and peas, oatmeal gruel, butter, cheese, vegetables, honey, rough bread made from a mixture of wheat, barley, and rye flour, herrings or other salt fish, and some salted or smoked bacon. butter had first been used for cooking and as a medicine to cure constipation and for puny children it could be salted down for the winter. the bread had been roasted on the stones of the fire; later there were communal ovens set up in villages. cooking was done over the fire by boiling in iron pots hung from an iron tripod, or sitting on the hot stones of the fire. they ate from wood bowls using a wood spoon. when they had fresh meat, it could be roasted on a spit. liquids were heated in a kettle. with drinking horns, they drank water, milk, buttermilk, apple cider, mead, ale made from barley malt, and bean and vegetable broth. they used jars and other earthenware, e.g. for storage of salt. they slept on straw mattresses or sacks on the floor or on benches. the villein regarded his bed area as the safest place in the house, as did people of all ranks, and kept his treasures there, which included his farm implements, as well as hens on the beams, roaming pigs, and stalled oxen, cattle, and horses, which were at the other end of the hut. fires were put out at night to guard against fire burning down the huts. the warmth of the animals then helped make the hut warm. around the room are a couple of chests to store salt, meal, flour, a broom made of birch twigs, some woven baskets, the distaff and spindle for spinning, and a simple loom for weaving. all clothes were homemade. they were often coarse, greasy wool and leather made from their own animals. the man wore a tunic of coarse linen embroidered on the sleeves and breast, around with he wore a girdle of rope, leather, or folded cloth. sometimes he also wore breeches reaching below the knee. the woman wore a loose short-sleeved gown, under which was a tight fitting garment with long loose sleeves, and which was short enough to be clear of the mud. if they wore shoes, they were clumsy and patched. some wore a hood-like cap. for really bad weather, a man wore on his head a hood with a very elongated point which could be wrapped around his neck. sometimes a short cape over the shoulders was attached. linen was too expensive for commoners. the absence of fresh food during the winter made scurvy prevalent; in the spring, people eagerly sought "scurvy grass" to eat. occasionally there would be an outbreak of a nervous disorder due to the ergot fungus growing in the rye used for bread. this manifested itself in apparent madness, frightening hallucinations, incoherent shouting, hysterical laughing, and constant scratching of itching and burning sensations. the villein and his wife and children worked from daybreak to dusk in the fields, except for sundays and holydays. he had certain land to farm for his own family, but had to have his grain milled at his lord's mill at the lord's price. he had to retrieve his wandering cattle from his lord's pound at the lord's price. he was expected to give a certain portion of his own produce, whether grain or livestock, to his lord. however, if he fell short, he was not put off his land. the villein, who worked the farm land as his ancestor ceorl had, now was so bound to the land that he could not leave or marry or sell an ox without his lord's consent. if the manor was sold, the villein was sold as a part of the manor. when his daughter or son married, he had to pay a "merchet" to his lord. he could not have a son educated without the lord's permission, and this usually involved a fee to the lord. his best beast at his death, or "heriot", went to his lord. if he wanted permission to live outside the manor, he paid "chevage" yearly. woodpenny was a yearly payment for gathering dead wood. sometimes a "tallage" payment was taken at the lord's will. the villein's oldest son usually took his place on his land and followed the same customs with respect to the lord. for an heir to take his dead ancestor's land, the lord demanded payment of a "relief", which was usually the amount of a year's income but sometimes as much as the heir was willing to pay to have the land. the usual aids were also expected to be paid. a large village also had a smith, a wheelwright, a millwright, a tiler and thatcher, a shoemaker and tanner, a carpenter wainwright and carter. markets were about twenty miles apart because a farmer from the outlying area could then carry his produce to the nearest town and walk back again in the daylight hours of one day. in this local market he could buy foodstuffs, livestock, household goods, fuels, skins, and certain varieties of cloth. the cloth was crafted by local weavers, dyers, and fullers. the weaver lived in a cottage with few and narrow windows with little furniture. he worked in the main, and sometimes the only, room. first the raw wool was washed with water at the front door to remove the grease. then its fibers were disentangled and made fine with hand cards with thistle teeth, usually by the children. then it was spun by a spinning wheel into thread, usually by the wife. on a double frame loom, a set of parallel threads was strung lengthwise. a device worked by a pedal lifted half of these threads --every other thread--while the other half remained in place. between the lifted threads and the stationary threads a shuttle was thrown by the weaver from one hand to another. then the threads which had remained stationary were raised by a second pedal and the shuttle thrown back. the shuttle carried a spool so that, as it moved, it left a thread behind it running crosswise or at right angles to the lengthwise threads and in and out between them. the lengthwise threads were called the "warp"; the shuttle thread was the "woof" or the "weft". in making cloth, it was the warp which, as the loom moved, took the worst beating. with the constant raising and lowering, these treads would wear and break, whereas the weft on which there was little strain remained intact. none of the cotton yarn which the old-fashioned wheels had spun was strong enough for warp. so it was necessary to use linen thread for the warp. since one loom could provide work for about six spinners, the weaver had his wool spun by other spinners in their cottages. sometimes the master weaver had an apprentice or workman working and living with him, who had free board and lodging and an annual wage. then a fuller made the cloth thick and dense by washing, soaping, beating, and agitating it, with the use of a community watermill which could be used by anyone for a fixed payment. the cloth dried through the night on a rack outside the cottage. the weaver then took his cloth, usually only one piece, to the weekly market to sell. the weavers stood at the market holding up their cloth. the cloth merchant who bought the cloth then had it dyed or dressed according to his requirements. its surface could be raised with teazleheads and cropped or sheared to make a nap. some cloth was sold to tailors to make into clothes. often a weaver had a horse for travel, a cow for milk, chickens for eggs, perhaps a few cattle, and some grazing land. butchers bought, slaughtered, and cut up animals to sell as meat. some was sold to cooks, who sold prepared foods. the hide was bought by the tanner to make into leather. the leather was sold to shoemakers and glovemakers. millers bought harvested grain to make into flour. flour was sold to bakers to make into breads. wood was bought by carpenters and by coopers, who made barrels, buckets, tubs, and pails. tilers, oilmakers and rope makers also bought raw material to make into finished goods for sale. wheelwrights made ploughs, harrows, carts, and later wagons. smiths and locksmiths worked over their hot fires. games with dice were sometimes played. in winter, youths ice- skated with bones fastened to their shoes. they propelled themselves by striking the ice with staves shod with iron. on summer holydays, they exercised in leaping, shooting with the bow, wrestling, throwing stones, and darting a thrown spear. the maidens danced with timbrels. since at least , children's toys included dolls, drums, hobby horses, pop guns, trumpets, and kites. the cold, indoors as well as outdoors, necessitated that people wear ample and warm garments. men and women of position dressed in long full cloaks reaching to their feet, sometimes having short full sleeves. the cloak generally had a hood and was fastened at the neck with a brooch. underneath the cloak was a simple gown with sleeves tight at the wrist but full at the armhole, as if cut from the same piece of cloth. a girdle or belt was worn at the waist. when the men were hunting or working, they wore gown and cloak of knee length. men wore stockings to the knee and shoes. the fashion of long hair on men returned. the nation grew with the increase of population, the development of towns, and the growing mechanization of craft industries. there were watermills for crafts and for supplying and draining water in all parts of the nation. in flat areas, slow rivers could be supplemented by creating artificial waterfalls, for which water was raised to the level of reservoirs. there were also some iron- smelting furnaces. coal mining underground began as a family enterprise. stone bridges over rivers could accommodate one person traveling by foot or by horseback and were steep and narrow. the wheelbarrow came into use to cart materials for building castles and cathedrals. merchants, who had come from the low end of the knightly class or high end of the villein class, settled around the open market areas, where main roads joined. they had plots narrow in frontage along the road and deep. their shops faced the road, with living space behind or above their stores. town buildings were typically part stone and part timber as a compromise between fire precautions and expense. towns, as distinct from villages, had permanent markets. as towns grew, they paid a fee to obtain a charter for self-government from the king giving the town judicial and commercial freedom. they were literate enough to do accounts. so they did their own valuation of the sum due to the crown so as not to pay the sheriff any more than that. these various rights were typically expanded in future times, and the towns received authority to collect the sum due to the crown rather than the sheriff. this they did by obtaining a charter renting the town to the burghers at a fee farm rent equal to the sum thus deducted from the amount due from the county. such a town was called a "borough" and its citizens or landholding freemen "burgesses". to be free of something meant to have exclusive rights and privileges with respect to it. selling wholesale could take place only in a borough. burgesses were free to marry. they were not subject to defense except of the borough. they were exempt from attendance at county and hundred courts. the king assessed a tallage [ad hoc tax] usually at ten per cent of property or income. in the boroughs, merchant and manufacturing guilds controlled prices and assured quality. the head officer of the guild usually controlled the borough, which excluded rival merchant guilds. a man might belong to more than one guild, e.g. one for his trade and another for religion. craft guilds grew up in the towns, such as the tanners at oxford, which later merged with the shoemakers into a cordwainers' guild. there were weavers' guilds in several towns, including london, which were given royal sanction and protection for annual payments (twelve pounds of silver for london. they paid an annual tribute and were given a monopoly of weaving cloth within a radius of several miles. guild rules covered attendance of the members at church services, the promotion of pilgrimages, celebration of masses for the dead, common meals, relief of poor brethren and sisters, the hours of labor, the process of manufacture, the wages of workmen, and technical education. henry standardized the yard as the length of his own arm. trades and crafts, each of which had to be licensed, grouped together by specialty in the town. cloth makers, dyers, tanners, and fullers were near an accessible supply of running water, upon which their trade depended. streets were often named by the trade located there, such as butcher row, pot row, cordwainer row, ironmonger row, wheeler row, and fish row. hirers of labor and sellers of wheat, hay, livestock, dairy products, apples and wine, meat, poultry, fish and pies, timber and cloth all had a distinct location. some young men were apprenticed to craftsmen to assist them and learn their craft. london had at least twenty wards, each governed by its own alderman. most of them were named after people. london was ruled by sixteen families linked by business and marriage ties. these businesses supplied luxury goods to the rich and included the goldsmiths [sold cups, dishes, girdles, mirrors, purses knives, and metal wine containers with handle and spout], vintners [wine merchants], mercers [sold textiles, haberdashery, combs, mirrors, knives, toys, spices, ointments, and potions], drapers, and pepperers, which later merged with the spicers to become the "grocers", skinners, tanners, shoemakers, woolmen, weavers, fishmongers, armorers, and swordsmiths. there were bakehouses at which one could leave raw joints of meat to be cooked and picked up later. these businesses had in common four fears: royal interference, foreign competition, displacement by new crafts, and violence by the poor and escaped villeins who found their way to the city. when a non-freeholder stayed in london he had to find for frankpledge, three sureties for good behavior. failure to do so was a felony and the ward would eject him to avoid the charge of harboring him with its heavy fine. the arrival of ships with cargoes from continental ports and their departure with english exports was the regular waterside life below london bridge. many foreign merchants lived in london. imports included timber, hemp, fish, and furs. there was a fraternal organization of citizens who had possessed their own lands with sac and soke and other customs in the days of king edward. there were public bathhouses, but they were disreputable. a lady would take an occasional bath in a half cask in her home. the church warned of evils of exposing the flesh, even to bathe. middlesex county was london's territory for hunting and farming. all london craft work was suspended for one month at harvest time. london received this charter for self-government and freedom from the financial and judicial organization of the county: "henry, by the grace of god, king of england, to the archbishop of canterbury and the bishops, abbots, earls, barons, justiciars, sheriffs and all his loyal subjects, both french and english, throughout the whole of england - greeting. . be it known to you that i have granted middlesex to my citizens of london to be held on lease by them and their heirs of me and my heirs for pounds paid by tale [yearly], upon these terms: that the citizens themselves [may] appoint a sheriff, such as they desire, from among themselves, and a justiciar, such as they desire, from among themselves, to safeguard the pleas of my crown [criminal cases] and to conduct such pleas. and there shall be no other justiciar over the men of london. . and the citizens shall not take part in any [civil] case whatsoever outside the city walls. ) and they shall be exempt from the payment of scot and danegeld and the murder fine. ) and none of them shall take part in trial by combat. ) and if any of the citizens has become involved in a plea of the crown, he shall clear himself, as a citizen of london, by an oath which has been decreed in the city. ) and no one shall be billeted [lodged in a person's house by order of the king] within the walls of the city nor shall hospitality be forcibly exacted for anyone belonging to my household or to any other. ) and all the citizens of london and all their effects [goods] shall be exempt and free, both throughout england and in the seaports, from toll and fees for transit and market fees and all other dues. ) and the churches and barons and citizens shall have and hold in peace and security their rights of jurisdiction [in civil and criminal matters] along with all their dues, in such a way that lessees who occupy property in districts under private jurisdiction shall pay dues to no one except the man to whom the jurisdiction belongs, or to the official whom he has placed there. ) and a citizen of london shall not be amerced [fined by a court when the penalty for an offense is not designated by statute] to forfeiture of a sum greater than his wergeld, [hereby assessed as] shillings, in a case involving money. ) and further there shall be no miskenning [false plea causing a person to be summoned to court] in a husting [weekly court] or in a folkmote [meeting of the community], or in any other court within the city. ) and the hustings [court] shall sit once a week on monday. ) and i assure to my citizens their lands and the property mortgaged to them and the debts due to them both within the city and without. ) and with regard to lands about which they have pled in suit before me, i shall maintain justice on their behalf, according to the law of the city. ) and if anyone has exacted toll or tax from citizens of london, the citizens of london within the city shall [have the right to] seize [by process of law] from the town or village where the toll or tax was exacted a sum equivalent to that which the citizen of london gave as toll and hence sustained as loss. ) and all those who owe debts to citizens shall pay them or shall clear themselves in london from the charge of being in debt to them. ) but if they have refused to pay or to come to clear themselves, then the citizens to whom they are in debt shall [have the right to] seize [by process of law] their goods [including those in the hands of a third party, and bring them] into the city from the [town, village or] county in which the debtor lives [as pledges to compel appearance in court]. ) and the citizens shall enjoy as good and full hunting rights as their ancestors ever did, namely, in the chilterns, in middlesex, and in surrey. witnessed at westminster." the above right not to take part in any case outside the city relieved london citizens from the burden of traveling to wherever the king's court happened to be, the disadvantage of not knowing local customs, and the difficulty of speaking in the language of the king's court rather than in english. the right of redress for tolls exacted was new because the state of the law was that the property of the inhabitants was liable to the king or superior lord for the common debt. newcastle-on-tyne was recognized by the king as having certain customs, so the following was not called a grant: "these are the laws and customs which the burgesses of newcastle upon tyne had in the time of henry king of england and ought to have. [ ] burgesses can distrain [take property of another until the other performs his obligation] upon foreigners within, or without their own market, within or without their own houses, and within or without their own borough without the leave of the reeve, unless the county court is being held in the borough, and unless [the foreigners are] on military service or guarding the castle. [ ] a burgess cannot distrain upon a burgess without the leave of the reeve. [ ] if a burgess have lent anything of his to a foreigner, let the debtor restore it in the borough if he admits the debt, if he denies it, let him justify himself in the borough. [ ] pleas which arise in the borough shall be held and concluded there, except pleas of the crown. [ ] if any burgess be appealed [sued] of any plaint, he shall not plead without the borough, unless for default of [the borough] court. [ ] nor ought he to answer without day and term, unless he have fallen into 'miskenning' [error in pleading], except in matters which pertain to the crown. [ ] if a ship have put in at tynemouth and wishes to depart, the burgesses may buy what they will [from it]. [ ] if a plea arise between a burgess and a merchant, it shall be concluded before the third ebb of the tide. [ ] whatever merchandise a ship has brought by sea must be landed, except salt; and herring ought to be sold in the ship. [ ] if any man have held land in burgage for a year and a day, lawfully and without claim, he shall not answer a claimant, unless the claimant have been without the realm of england, or a child not of age to plead. [ ] if a burgess have a son, he shall be included in his father's freedom if he be with his father. [ ] if a villein come to dwell in the borough, and dwell there a year and a day as a burgess, he shall abide altogether, unless notice has been given by him or by his master that he is dwelling for a term. [ ] if any man appeal [sue] a burgess of any thing, he cannot do [trial by] battle with the burgess, but the burgess shall defend himself by his law, unless it be of treason, whereof he is bound to defend himself by [trial by] battle. [ ] neither can a burgess do [trial by] battle against a foreigner, unless he first go out of the borough. [ ] no merchant, unless he be a burgess, may buy [outside] the town either wool or leather or other merchandise, nor within the borough except [from] burgesses. [ ] if a burgess incur forfeit, he shall give six ounces [ s.] to the reeve. [ ] in the borough there is no merchet [payment for marrying off a daughter] nor heriot nor bloodwite [fine for drawing blood] nor stengesdint [fine for striking with a stick]. [ ] every burgess may have his own oven and handmill if he will, saving the right of the king's oven. [ ] if a woman be in forfeit for bread or beer, no one ought to interfere but the reeve. if she forfeit twice, she shall be chastised by her forfeit. if three times, let justice be done on her. [ ] no one but a burgess may buy webs [woven fabrics just taken off the loom] to dye, nor make nor cut them. [ ] a burgess may give and sell his land and go whither he will freely and quietly unless there be a claim against him." the nation produced sufficient iron, but a primitive steel [iron with carbon added] was imported. it was scarce and expensive. steel was used for tools, instruments, weapons and armor. ships could carry about people. navigation was by simple charts that included wind direction for different seasons and the direction of north. the direction of the ship could be generally determined when the sky was clear by the position of the sun during the day or the north star during the night. plays about miracles wrought by holy men or saints or the sufferings and fortitude of martyrs were performed, usually at the great church festivals. most nobles could read, though writing was still a specialized craft. there were books on animals, plants, and stones. the lives of the saints as told in the book "the golden legend" were popular. the story of the early king arthur was told in the book "the history of the kings of england". the story at this time stressed arthur as a hero and went as follows: arthur became king at age . he had an inborn goodness and generosity as well as courage. he and his knights won battles against foreign settlers and neighboring clans. once, he and his men surrounded a camp of foreigners until they gave up their gold and silver rather than starve. arthur married guenevere and established a court and retinue. leaving britain in the charge of his nephew modred, he fought battles on the continent for land to give to his noblemen who did him service in his household and fought with him. when arthur returned to britain, he made battle with his nephew modred who had crowned himself king. arthur's knight gawain, the son of his sister, and the enemy modred were killed and arthur was severely wounded. arthur told his kinsman constantine to rule britain as king in his place. the intellectual world included art, secular literature, law, and medicine. there were about physicians. the center of government was a collection of tenants-in-chief, whose feudal duty included attendance when summoned, and certain selected household servants of the king. the exchequer became a separate body. the payments in kind, such as grain or manual services, from the royal demesnes had been turned into money payments. the great barons made their payments directly to the exchequer. the income from royal estates was received by the exchequer and then commingled with the other funds. each payment was indicated by notches on a stick, which was then split so that the payer and the receiver each had a half showing the notches. the exchequer was the great school for training statesmen, justices, and bishops. the chancellor managed the domestic matters of the crown's castles and lands. the great offices of state were sold for thousands of pounds, which caused their holders to be on their best behavior for fear of losing their money by being discharged from office. one chancellor paid henry about pounds for the office. henry brought sheriffs under his strict control, free from influence by the barons. he maintained order with a strong hand, but was no more severe than his security demanded. forests were still retained by kings for their hunting of boars and stags. a master forester maintained them. the boundaries of the royal forests were enlarged. they comprised almost one-third of the kingdom. certain inhabitants thereof supplied the royal foresters with meat and drink and received certain easements and rights of common therein. the forest law reached the extreme of severity and cruelty under henry i. punishments given included blinding, emasculation, and execution. offenders were rarely allowed to substitute a money payment. when fines were imposed they were heavy. a substantial number of barons and monasteries were heavily in debt to the jews. the interest rate was % ( d. per pound per week). the king taxed the jews at will. - the law - henry restored the death penalty (by hanging) for theft and robbery, but maintained william i's punishment of mutilation by blinding and severing of limbs for other offenses, for example, bad money. he decreed in that false and bad money should be amended, so that he who was caught passing bad denarii should not escape by redeeming himself but should lose his eyes and members. and since denarii were often picked out, bent, broken, and refused, he decreed that no denarius or obol, which he said were to be round, or even a quadrans, if it were whole, should be refused. (money then reached a higher level of perfection, which was maintained for the next century.) the forest law stated that: "he that doth hunt a wild beast and doth make him pant, shall pay shillings: if he be a freeman, then he shall pay double. if he be a bound man, he shall lose his skin." a "verderer" was responsible for enforcing this law, which also stated that: "if anyone does offer force to a verderer, if he be a freeman, he shall lose his freedom, and all that he hath. and if he be a villein, he shall lose his right hand." further, "if such an offender does offend so again, he shall lose his life." a wife's dower is one-third of all her husband's freehold land, unless his endowment of her at their marriage was less than one- third. counterfeiting law required that "if any one be caught carrying false coin, the reeve shall give the bad money to the king however much there is, and it shall be charged in the render of his farm [payment] as good, and the body of the offender shall be handed over to the king for judgment, and the serjeants who took him shall have his clothes." debts to townsmen were recoverable by this law: "if a burgess has a gage [a valuable object held as security for carrying out an agreement] for money lent and holds this for a whole year and a day, and the debtor will not deny the debt or deliver the gage, and this is proved, the burgess may sell the gage before good witnesses for as much as he can, and deduct his money from the sum. if any money is over he shall return it to the debtor. but if there is not enough to pay him, he shall take distress again for the amount that is lacking." past due rent in a borough was punishable by payment of s. as fine. judicial activity encouraged the recording of royal legislation in writing which both looked to the past and attempted to set down law current in henry's own day. the "liberi quadripartitus" aimed to include all english law of the time. this showed an awareness of the ideal of written law as a statement of judicial principles as well as of the practice of kingship. in this way, concepts of roman law used by the normans found their way into english law. church law provided that only consent between a man and woman was necessary for marriage. there needn't be witnesses, ceremony, nor consummation. consent could not be coerced. penalties in marriage agreements for not going through with the marriage were deemed invalid. villeins and slaves could marry without their lords' or owners' permission. a couple living together could be deemed married. persons related by blood within certain degrees, which changed over time, of consanguinity were forbidden to marry. this was the only ground for annulment of a marriage. a legal separation could be given for adultery, cruelty, or heresy. annulment, but not separation, could result in remarriage. fathers were usually ordered to provide some sustenance and support for their illegitimate children. the court punished infanticide and abortion. counterfeiters of money, arsonists, and robbers of pilgrims and merchants were to be excommunicated. church sanctuary was to be given to fugitives of violent feuds until they could be given a fair trial. - judicial procedure - courts extant now are the royal court, the king's court of the exchequer, county courts, and hundred courts, which were under the control of the king. his appointed justices administered justice in these courts on regular circuits. the sheriff now only produced the proper people and preserved order at the county courts and presided over the nonroyal pleas and hundred courts. he impaneled recognitors, made arrests, and enforced the decisions of the royal courts. also there are manor courts, borough courts, and ecclesiastical courts. in the manor courts, the lord's reeve generally presided. the court consisted of the lord's vassals and declared the customs and law concerning such offenses as failure to perform services and trespass on manorial woods, meadow, and pasture. the king's royal court heard issues concerning the crown and breaches of the king's peace, which included almost all criminal matters. the most serious offenses: murder, robbery, rape, abduction, arson, treason, and breach of fealty, were now called felonies. other offenses were: housebreaking, ambush, certain kinds of theft, premeditated assault, and harboring outlaws or excommunicants. henry personally presided over hearings of important legal cases. he punished crime severely. offenders were brought to justice not only by the complaint of an individual or local community action, but by official prosecutors. a prosecutor was now at trials as well as a justice. trial is still by compurgation. trial by combat was relatively common. these offenses against the king placed merely personal property and sometimes land at the king's mercy. thus the crown increased the range of offenses subject to its jurisdiction and arrogated to itself profits from the penalties imposed. a murderer could be given royal pardon from the death penalty so that he could pay compensation to the relatives. the royal court also heard these offenses against the king: fighting in his dwelling, contempt of his writs or commands, encompassing the death or injury of his servants, contempt or slander of the king, and violation of his protection or his law. it heard these offenses against royal authority: complaints of default of justice or unjust judgment, pleas of shipwrecks, coinage, treasure trove [money buried when danger approached], forest prerogatives, and control of castle building. slander of the king, the government, or high officials was punishable as treason, felony, misprision of treason, or contempt, depending on the rank and office of the person slandered and the degree of guilt. henry began the use of writs to intervene in civil matters, such as inquiry by oath and recognition of rights as to land, the obligations of tenure, the legitimacy of heirs, and the enforcement of local justice. the crown used its superior coercive power to enforce the legal decisions of other courts. these writs allowed people to come to the royal court on certain issues. there was a vigorous interventionism in the land law subsequent to appeals to the king in landlord-tenant relations, brought by a lord or by an undertenant. assizes [those who sit together] of local people who knew relevant facts were put together to assist the court. henry appointed some locally based justices, called justiciars. also, he sent justices out on eyres [journeys] to hold assizes. this was done at special sessions of the county courts, hundred courts, and manor courts. records of the verdicts of the royal court were sent with these itinerant justices for use as precedent in these courts. thus royal authority was brought into the localities and served to check baronial power over the common people. these itinerant justices also transacted the local business of the exchequer in each county. henry created the office of chief justiciar, which carried out judicial and administrative functions. the royal court retained cases of gaol delivery [arrested person who had been held in gaol was delivered to the court] and amercements. it also decided cases in which the powers of the popular courts had been exhausted or had failed to do justice. the royal court also decided land disputes between barons who were too strong to submit to the county courts. the king's court of the exchequer reviewed the accounts of sheriffs, including receipts and expenditures on the crown's behalf as well as sums due to the treasury, located still at winchester. these sums included rent from royal estates, the danegeld land tax, the fines from local courts, and aid from baronial estates. its records were the "pipe rolls", so named because sheets of parchment were fastened at the top, each of which dropped into a roll at the bottom and so assumed the shape of a pipe. the county and hundred courts assessed the personal property of individuals and their taxes due to the king. the county court decided land disputes between people who had different barons as their respective lords. the free landholders were expected to attend county, hundred, and manor courts. they owed "suit" to it. the suitors found the dooms [laws] by which the presiding officer pronounced the sentence. the county courts heard cases of theft, brawling, beating, and wounding, for which the penalties could be exposure in the pillory or stocks. the pillory held an offender's head and hands in holes in boards, and the stocks held one's hands and feet. here the public could scorn and hit the offender or throw fruit, mud, and dead cats at him. for sex offenders and informers, stones were usually thrown. sometimes a person was stoned to death. the county courts met twice yearly. if an accused failed to appear after four successive county courts, he was declared outlaw at the fifth and forfeited his civil rights and all his property. he could be slain by anyone at will. the hundred court met once a month to hear neighborhood disputes, for instance concerning pastures, meadows and harvests. usually present was a priest, the reeve, four representative men, and sometimes the lord or his steward in his place. sometimes the chief pledges were present to represent all the men in their respective frankpledges. the bailiff presided over all these sessions except two, in which the sheriff presided over the full hundred court to take the view of frankpledge, which was required for those who did not have a lord to answer for him. the barons held court on their manors at a "hallmote" for issues arising between people living on the manor, such as bad ploughing on the lord's land or letting a cow get loose on the lord's land, and land disputes. this court also made the decision of whether a certain person was a villein or freeman. the manor court took over issues which had once been heard in the vill or hundred court. the baron charged a fee for hearing a case and received any fines he imposed, which amounted to significant "profits of justice". boroughs held court on trading and marketing issues in their towns such as measures and weights, as well as issues between people who lived in the borough. the borough court was presided over by a reeve who was a burgess as well as a royal official. wealthy men could employ professional pleader-attorneys to advise them and to speak for them in a court. the ecclesiastical courts dealt, until the time of henry viii, with family matters such as marriage, annulments, marriage portions, legitimacy, undue wifebeating, child abuse, orphans, bigamy, adultery, incest, fornication, personal possessions, defamation, slander which did not cause material loss (and therefore had no remedy in the temporal courts), libel, perjury, usury, mortuaries, sacrilege, blasphemy, heresy, tithe payments, church fees, certain offenses on consecrated ground, and breaches of promises under oath, e.g. to pay a debt, provide services, or deliver goods. they decided inheritance and will issues which did not concern land, but only personal property. this developed from the practice of a priest usually hearing a dying person's will as to the disposition of his goods and chattel when he made his last confession. it provided guardianship of infants during probate of their personal property. trial was basically by compurgation, with oath-helpers swearing to or against the veracity of the alleged offender's oath. an alleged offender could be required to answer questions under oath, thus giving evidence against himself. the ecclesiastical court's penalties were intended to reform and determined on a case-by-case basis. the canon law of christendom was followed, without much change by the english church or nation. penalties could include confession and public repentance of the sin before the parish, making apologies and reparation to persons affected, public embarrassment such as being dunked in water (e.g. for women scolds), walking a route barefoot and clad only in one's underwear, whippings, extra work, fines, and imprisonment in a "penitentiary" to do penance. the ultimate punishment was excommunication with social ostracism. then no one could give the person drink, food, or shelter and he could speak only to his spouse and servants. excommunication included denial of the sacraments of baptism, penance, mass, and extreme unction [prayers for spiritual healing] at death; which were necessary for salvation of the soul; and the sacrament of confirmation of one's belief in the tenets of christianity. a person could also be denied a christian burial in consecrated ground. however, the person could still marry and make a will. the king's court could order a recalcitrant excommunicant imprisoned until he satisfied the claims of the church. excommunication was usually imposed for failure to obey an order or showing contempt of the law or of the courts. it required a hearing and a written reason. if this measure failed, it was possible to turn the offender over to the state for punishment, e.g. for blasphemy or heresy. blasphemy [speaking ill of god] was thought to cause god's wrath expressed in famine, pestilence, and earthquake and was usually punished by a fine or corporal punishment, e.g. perforation or amputation of the tongue. it was tacitly understood that the punishment for heresy was death by burning. there were no heresy cases up to and few after that. the state usually assured itself the sentence was just before imposing it. the court of the rural dean was the ecclesiastical parallel of the hundred court of secular jurisdiction and usually had the same land boundaries. the archdeacons, who had been ministers of the bishop in all parts of his diocese alike, were now each assigned to one district, which usually had the same boundaries as the county. henry acknowledged occasional appellate authority of the pope, but expected his clergy to elect bishops of his choice. there was a separate judicial system for the laws of the forest. there were itinerant justices of the forests and four verderers of each forest county, who were elected by the votes of the full county court, twelve knights appointed to keep vert [everything bearing green leaves] and venison, and foresters of the king and of the lords who had lands within the limits of the forests. every three years, the officers visited the forests in preparation for the courts of the forest held by the itinerant justices. the inferior courts were the woodmote, held every forty days, and the swein [freeman or freeholder within the forest] mote, held three times yearly before the verderers as justices, in which all who were obliged to attend as suitors of the county court to serve on juries and inquests were to be present. - - - chapter - - - - the times: - - king henry ii and queen eleanor, who was twelve years older, were both intelligent, educated, energetic, well-traveled, and experienced in affairs of state. henry was the first norman king to be fully literate and he learned latin. he had many books and maintained a school. eleanor often served as regent during henry's reign and the reigns of their two sons: richard i, the lion- hearted, and john. she herself headed armies. henry ii was a modest, courteous, and patient man with an astonishing memory and strong personality. he was indifferent to rank and impatient of pomp to the point of being careless about his appearance. he usually dressed in riding clothes and was often unkempt. he was thrifty, but generous to the poor. he was an outstanding legislator and administrator. henry ii took the same coronation oath as edward the confessor regarding the church, laws, and justice. not only did he confirm the charter of his grandfather henry i, but he revived and augmented the laws and institutions of his grandfather and developed them to a new perfection. almost all legal and fiscal institutions appear in their first effective form during his reign. for instance, he institutionalized the assize for a specific function in judicial proceedings, whereas before it had been an ad hoc body used for various purposes. the term "assize" here means the sitting of a court or council. it came to denote the decisions, enactments, or instructions made at such. henry's government practiced a strict economy and he never exploited the growing wealth of the nation. he abhorred bloodshed and the sacrifice of men's lives. so he strove diligently to keep the peace, when possible by gifts of money, but otherwise with armed force. robbers were hanged and any man who raped a woman was castrated. foreign merchants with precious goods could journey safely through the land from fair to fair. these fairs were usually held in the early fall, after harvesting and sheep shearing. foreign merchants bought wool cloth and hides. frankpledge was revived, now applying to the unfree and villeins. no stranger could stay overnight (except for one night in a borough), unless sureties were given for his good behavior. a list of such strangers was to be given to itinerant justices. henry had character and the foresight to build up a centralized system of government that would survive him. he learned about the counties' and villages' varying laws and customs. then, using the model of roman law, he gave to english institutions that unity and system which in their casual patchwork development had been lacking. henry's government and courts forged permanent direct links between the king and his subjects which cut through the feudal structure of lords and vassals. he developed the methods and structure of government so that there was a great increase in the scope of administrative activity without a concurrent increase of personal power of the officials who discharged it. the government was self-regulating, with methods of accounting and control which meant that no official, however exalted, could entirely escape the surveillance of his colleagues and the king. at the same time, administrative and judicial procedures were perfected so that much which had previously required the king's personal attention was reduced to routine. the royal household translated the royal will into action. in the early s, there had been very little machinery of central government that was not closely associated with the royal household. there was a chief justiciar for legal matters and a treasurer. royal government was largely built upon what had once been purely domestic offices. kings had called upon their chaplains to pen letters for them. by henry ii's reign, the chancery was a highly efficient writing office through which the king's will was expressed in a flow of writs, and the chancellor an important and highly rewarded official, but he was still responsible for organizing the services in the royal chapel. similarly, the chamberlains ran the household's financial departments. they arranged to have money brought in from a convenient castle treasury, collected money from sheriffs or the king's debtors, arranged loans with the usurers, and supervised the spending of it. it was spent for daily domestic needs, the king's almsgiving, and the mounting of a military campaign. but they were still responsible for personal attendance upon the king in his privy chamber, taking care of his valuable furs, jewels, and documents, and changing his bed linens. there were four other departments of the household. the steward presided over the hall and kitchens and was responsible for supplying the household and guests with food supplies. the butler had duties in the hall and cellars and was responsible for the supply of wine and ale. the marshall arranged lodgings for the king's court as it moved about from palaces to hunting lodges, arranged the pay of the household servants, and supervised the work of ushers, watchmen, fire tenders, messengers and huntsmen. the constable organized the bodyguard and escorts, arranged for the supply of castles, and mustered the royal army. the offices of steward, constable, chamberlain, butler were becoming confined to the household and hereditary. the justiciar, chancellor, and treasurer are becoming purely state offices and are simply sold or rented, until public pressure resulted in a requirement of ability. henry's council included all his tenants-in-chief, which included archbishops, bishops, abbots, priors, earls, barons, knights and socage tenants of the crown, whether they made payments directly to him or through a sheriff. the higher ones were served with a writ addressed to them personally. knights and below were summoned by a general writ to the sheriff. henry brought order and unity by making the king's royal court the common court of the land. its purpose was to guard the king's peace by protecting all people of free status throughout the nation and correct the disparity in punishments given by local courts. heretofore, the scope of the king's peace had varied to cover as little as the king's presence, his land, and his highway. the royal demesne had shrunk to about % of the land. the common law for all the nation was established by example of the king's royal court. henry erected a basic, rational framework for legal processes which drew from tradition but lent itself to continuous expansion and adaptation. a system of writs originated well-defined actions in the royal courts. each court writ had to satisfy specific conditions for this court to have jurisdiction over an action or event. this system determined the royal court's jurisdiction over the church, lords, and sheriffs. it limited the jurisdiction of all other courts and subordinated them to the royal court. inquests into any misdeeds of sheriffs were held, which could result in their dismissal. henry and eleanor spoke many languages and liked discussing law, philosophy, and history. so they gathered wise and learned men about them, who became known as courtiers, rather than people of social rank. they lived in the great and strong tower of london, which had been extended beyond the original white tower, as had other castles, so that the whole castle and grounds were defended instead of just the main building. the tower of london was in the custody of one of the two justiciars. on the west were two strongly fortified castles surrounded by a high and deeply entrenched wall, which had seven double gates. towers were spaced along the north wall and the thames river flowed below the south wall. to the west was the city, where royal friends had residences with adjoining gardens near the royal palace at westminster. the court was a center of culture as well as of government. the game of backgammon was played. people wore belts with buckles, usually brass, instead of knotting their belts. london extended about a mile along the thames and about half a mile inland. it had narrow twisting lanes, some with a ditch down the middle for water runoff. most of its houses were two stories, the ground floor having booths and workshops, and the upper floor living space. most of the houses were wooden structures. the richer merchants' and knights' houses were built of stone. walls between houses had to be stone to a height of feet and thatched roofs were banned because there had been many fires. there was poor compliance, but some roofs were tiled with red brick tiles. the population was about , . there were over churches for public worship, thirteen monasteries (including nunneries), and st. paul's cathedral. all were built of stone. the churches gave a place of worship for every inhabitants and celebrated feast days, gave alms and hospitality to strangers, confirmed betrothals or agreements of marriage, celebrated weddings, conducted funerals, and buried the dead. the synod of westminster of prescribed that all marriages were to be performed by the church. church law required a warning prior to suspension or excommunication. monastic, cathedral, and parish schools taught young boys grammar so they could sing and read in church services. nuns taught girls. fish but no meat was eaten on fridays. there was dark rye bread and expensive white wheat bread. vegetables included onions, leeks, and cabbage. fruits included apples, pears, plums, cherries, and strawberries. water was obtained from streams running through the town to the thames and from springs. only the rich, palaces, and churches could afford beeswax candles; others had homemade tallow [cow or sheep fat] candles which smelled and gave off smoke. most people washed their bodies. even the poor had beds and bed clothes. the beds were often shared. few babies survived childhood. if a man reached , he could expect to live until age . thousands of londoners died during a hot summer from fevers, plague and the like. in london, bells heralded the start and finish of all organized business. the sellers of merchandise and hirers of labor were distributed every morning into their several localities according to their trade. vendors, craftsmen, and laborers had their customary places. some vendors walked the streets announcing their wares for sale. there were craft guilds of bakers, butchers, cloth workers, and saddlers, as well as of weavers. vendors on the thames river bank sold cooked fish caught from the river and wine from ships and wine cellars. cook shops sold roasted meats covered with hotly spiced sauces. london bridge was built of stone for the first time. it was supported by a series of stone arches standing on small man-made islands. it had such a width that a row of wood houses and a chapel was built on top of it. in the spring it was impassable by ships because the flow of water under it varied in height on either side of the bridge by several feet at half tide. the bridge had the effect of slowing down the flow upstream, which invited wherries and rowboats and stately barges of the nobility. in winters in which it froze over, there was ice skating, ice boating, and fishing through holes in the ice. outside each city gate were clusters of ragged buildings, small monasteries and hostelries, groups of huntsmen's kennels, and fencing schools. outside one of the gates, a horse market was held every week. horses wore horseshoes made of iron or of a crude steel. from the southwest gate of the city along the north river bank toward westminster, there was a gradually extending line of rich men's mansions and bishops' palaces. on the southern bank of the thames river was growing the disorderly suburb of southwark, with fishermen's and boatmens' hovels, and taverns and brothels that were frequented by drunkards, rakes, and whores. on the north side of the city was a great forest with fields and wells where students and other young men from the city took walks in the fresh evening air. in some fields, country folk sold pigs, cows, oxen and sheep. mill wheels turned at various streams. near london in the country was a glass factory. at sunset, the gates of london were closed for the night. all taverns had to be closed, all lights put out, and all fires banked or covered when the bell of the church of st. martin le grand rang at : p.m. anyone found on the streets after this curfew could be arrested. gangs of young nobles or gangs of thieves, cutpurses, and looters roamed the streets after dark and sometimes rioted. offenders were often beheaded and their heads placed on spikes on london bridge. men in london had begun weaving cloth, which formerly had been done by women. some of the cloth was exported. the weavers guild of london received a charter by the king in , the first granted to any london craft: "know that i have conceded to the weavers of london to hold their guild in london with all the liberties and customs which they had in the time of king henry [i], my grandfather; and that none may intermeddle with the craft within the city, nor in southwark, nor in other places pertaining to london except through them and except he be in their guild, otherwise than was accustomed to be done in the time of king henry, my grandfather ...so that each year they render thence to me two marks [ s. d.] of gold at the feast of st. michael. and i forbid that any shall do injury or contumely to them on this account under penalty of pounds [ s.]. witness t[homas], chancellor, and warinus, son of gerard, chamberlain, at winchester." the liberties obtained were: ) the weavers may elect bailiffs to supervise the work of the craft, to punish defaulters, and to collect the ferm [amount owed to the king]. the bailiffs were chosen from year to year and swore before the mayor of london to do and keep their office well and truly. ) the bailiffs may hold court from week to week on pleas of debt, agreements, covenants [promises for certain performance], and minor trespasses. ) if any of the guild members are sued in any other court on any of the above pleas, the guild may challenge that plea to bring it to the guild court. ) if any member is behind in his share of the payment to the king, the bailiffs may distrain his loom until he has paid this. paying an annual payment freed the weavers from liability to inconsequent royal fines. failure to make this payment promptly might have led to loss of the right, hence the rigorous penalty of distraint upon the looms of individual weavers who fell into arrears. the weavers' guild punished members who used bad thread in their weaving or did defective weaving by showing the default to the mayor, with opportunity for the workman to make entreaty, and the mayor and twelve members of the guild then made a verdict of amercement of / mark [ s. d.] and the workman of the cloth was also punished by the guild bailiffs according to guild custom. the weavers' guild tradition of brotherliness among members meant that injury to a fellow weaver incurred a severe penalty. if a weaver stole or eloigned [removed them to a distance where they were unreachable] any other weaver's goods falsely and maliciously, then he was dismissed from the guild and his loom was taken by the guild to fulfill his portion of the annual payment to the king. the weavers were allowed to buy and to sell in london freely and quietly. they had all the rights of other freemen of the city. thus from the middle of the s, the weavers enjoyed the monopoly of their craft, rights of supervision which ensured a high standard of workmanship, power to punish infractions of their privileges, and full control of their members. in this they stand as the prototype of english medieval guilds. these rights represented the standard which all bodies of craftsmen desired to attain. the right of independent jurisdiction was exceptional. in henry ii's charter to london, london did not retain its right to appoint its own sheriff and justice given by henry i. london's chief magistrate was the mayor, who was appointed by the king, until . then the mayor was elected yearly by the aldermen of the city wards and approved by the king. he was typically a rich prince chosen by the barons and chief merchants of london. the commoners had no voice in his selection, but they could still approve or disapprove of the actions of the city government at ward and folk motes. at certain periods, a king asserted royal power over the selection of mayor and governance of the city. there were three ways to become a citizen of london: being the son of a citizen, apprenticeship in a craft for seven years, and purchase of citizenship. london and westminster growth led to their replacing winchester as the capital. st. barthomew infirmary was established in london for the care of sick pilgrims traveling to the shrine of becket in canterbury. it had been inspired by a monk who saw a vision of st. barthomew telling him to build a church and an infirmary. trading was facilitated by the stabilization of the amount of silver metallic content of the english coinage, which was called "sterling" [strong] silver. the compass, a magnetic lodestone [leading stone] needle mounted on a cork and floated in a bowl of water, assisted the navigation of ships. with it, one could tell the general direction of a ship when the skies were cloudy as well as clear. and one could generally track one's route by using the direction and speed of travel to calculate one's new position. london became a major trading center for foreign goods from many lands. about % of the knights were literate. wealthy men sent their sons to school in monasteries to prepare them for a livelihood in a profession or in trade or to the town of oxford, whose individual scholars had migrated from paris and had attracted disciples for a long time. these schools grew up around st. mary's church, but had not been started by the church as there was no cathedral school in oxford. oxford had started as a burh and had a royal residence and many tradesmen. it was given its basic charter in by the king. this confirmed to it all the customs, laws and liberties [rights] as those enjoyed by london. it became a model charter for other towns. bachelors at oxford studied the arts of grammar, rhetoric, and logic, and then music, arithmetic, geometry, and astronomy, until they mastered their discipline and therefore were authorized to teach it. teaching would then provide an income sufficient to support a wife. the master of arts was analogous to the master craftsman of a guild. from , the civil law was studied, and shortly thereafter, canon law. later came the study of medicine. the use of paper supplemented the use of parchment for writing. irregular edged paper was made from linen, cotton, straw, and/or wood beaten to a pulp and then spread out over a wire mesh to dry. theologicians taught that the universe was made for the sake and service of man, so man was placed at the center of the universe. man was made for the sake and service of god. every freeman holding land of a lord gave homage and fealty to him, swearing to bear him faith of the tenement held and to preserve his earthly honor in all things, saving the faith owed to the king. homage was done for lands, for free tenements, for services, and for rents precisely fixed in money or in kind. homage could be done to any free person, male or female, adult or minor, cleric or layman. a man could do several homages to different lords for different fees, but there had to be a chief homage to that lord of whom he held his chief tenement. homage was not due for dower, from the husband of a woman to whom a tenement was given as a marriage portion, for a fee given in free alms, or until the third heir, either for free maritagium [a marriage portion which is given with a daughter in marriage, that is not bound to service] or for the fee of younger sisters holding of the eldest. all fiefs to be inherited by the eldest son had to be intact. every lord could exact fealty from his servants. in this era, the english national race and character was formed. only a few barons still had lands in normandy. stories of good king arthur were popular and set ideals for behavior and justice in an otherwise barbaric age where force was supreme. his last battle in which he lay wounded and told a kinsman to rule in his place and uphold his laws was written in poem ("layamon's brut"). romantic stories were written and read in english. the custom of "bundling" was started by ladies with their knights, who would lie together in bed without undressing and with one in a sack the top of which was tied around his neck, as part of a romantic courtship. wealthy men often gave their daughters dowries in case they were widowed. this might be matched by a marriage settlement by a prospective husband. intermarriage had destroyed any distinction of normans by look or speech alone, except for the anglo-saxon manor villeins, who worked the farm land and composed about two-thirds of the population. villeins were bound to the land and could, on flight, be brought back to it. they could not give homage, but could give fealty. a villein had the equipment to farm, fish, make cheese, keep poultry, brew beer, hedge, and cut wood. although the villeins could not buy their freedom or be freed by their lord, they became less numerous because of the preference of landholders for tenants motivated to perform work by potential loss of tenure. also, the crown's protection of all its subjects in criminal matters blurred the distinction between free and unfree men. the boroughs were dominated by lords of local manors, who usually had a house in the borough. similarly, burgesses usually had farmland outside the borough. many boroughs were granted, by the king or manor lord, the right to have a common seal for the common business of the town. some boroughs were given the authority to confer freedom on the villein by enrolling him in their guild or allowing him to stay in the borough for a year and a day. the guilds met frequently in their drinking halls and drew up regulations for the management of their trade. each borough was represented by twelve reputable burgesses. each vill was represented by a reeve and four reputable men. certain towns sponsored great seasonal fairs for special goods, such as cloth. about % of the population lived in towns. in the early s, the horizontal-axle windmill was invented, probably in eastern england, on the analogy of the horizontal-axle watermill. it was very useful in flat areas where streams were too slow for a watermill unless a dam were built. but a dam often flooded agricultural land. some watermill wheels were moved by tidal currents. london guilds of craftsmen such as weavers, fullers, bakers, loriners (makers of bits, spurs, and metal mountings of bridles and saddles), cordwainers (makers of leather goods such as shoes), pepperers, and goldsmiths were licensed by the king, for which they paid him a yearly fee. there were also five bridge guilds (probably raising money for the future construction of london bridge in stone) and st. lazarus' guild. the wealthy guilds, which included the goldsmiths, the pepperers, and three bridge guilds had landholding members who had been thegns or knights and now became a class of royal officials: the king's minters, his chamberlain, his takers of wines, his collectors of taxes. the weavers of oxford paid s. [two marks] to have a guild. the shoemakers paid s. [five marks]. in , master carpenters, masons, and tilers made d. per day, their servers (the journeymen of a later time) made / d., free stone carvers / d., plasterers and daubers, diggers and sievers less. all received food in addition or / d. in its stead. sandwich was confirmed in its port rights by this charter: "henry ii to his sheriff and bailiffs of kent, greeting. i will and order that the monks of the holy trinity of canterbury shall have fully all those liberties and customs in sandwich which they had in the time of king henry my grandfather, as it was adjudged in pursuance of his command by the oath of twelve men of dover and twelve men of sandwich, to wit, that the aforesaid monks ought to have the port and the toll and all maritime customs in the same port, on either side of the water from eadburge gate as far as markesfliete and a ferryboat for passage. and no man has there any right except they and their ministers. wherefore i will and firmly command you and the men of sandwich that ye cause the aforesaid monks to have all their customs both in the port and in the town of sandwich, and i forbid any from vexing them on this account." "and they shall have my firm peace." henry gave this charter to the town of bristol in : "know ye, that i have granted to my burgesses of bristol, that they shall be quit both of toll [a reasonable sum of money or portion of the thing sold, due to the owner of the fair or market on the sale of things tollable therein. it was claimed by the lord of the fee where the fair or market was held, by virtue of a grant from the crown either ostensible or presumed] and passage [money paid for crossing a river or for crossing the sea as might be due to the crown] and all custom [customary payments] throughout my whole land of england, normandy, and wales, wherever they shall come, they and their goods. wherefore i will and strictly command, that they shall have all their liberties and acquittances and free customs fully and honorable, as my free and faithful men, and that they shall be quit of toll and passage and of every other customs: and i forbid any one to disturb them on this account contrary to this my charter, on forfeiture of ten pounds [ s.]." john, when he was an earl and before he became king, granted these liberties to bristol about : ) no burgess may sue or be sued out of bristol. ) the burgesses are excused from the murder fine (imposed by the king or lord from the hundred or town where the murder was committed when the murderer had not been apprehended). ) no burgess may wage duel [trial by combat], unless sued for death of a stranger. ) no one may take possession of a lodging house by assignment or by livery of the marshall of the earl of gloucester against the will of the burgesses (so that the town would not be responsible for the good behavior of a stranger lodging in the town without first accepting the possessor of the lodging house). ) no one shall be condemned in a matter of money, unless according to the law of the hundred, that is, forfeiture of s. ) the hundred court shall be held only once a week. ) no one in any plea may argue his cause in miskenning. ) they may lawfully have their lands and tenures and mortgages and debts throughout my whole land, [from] whoever owes them [anything]. ) with regard to debts which have been lent in bristol, and mortgages there made, pleas shall be held in the town according to the custom of the town. ) if any one in any other place in my land shall take toll of the men of bristol, if he does not restore it after he is required to, the prepositor of bristol may take from him a distress at bristol, and force him to restore it. ) no stranger tradesman may buy within the town from a man who is a stranger, leather, grain, or wool, but only from a burgess. ) no stranger may have a shop, including one for selling wine, unless in a ship, nor shall sell cloth for cutting except at the fair. ) no stranger may remain in the town with his goods for the purpose of selling his goods, but for forty days. ) no burgess may be confined or distrained any where else within my land or power for any debt, unless he is a debtor or surety (to avoid a person owed a debt from distraining another person of the town of the debtor). ) they shall be able to marry themselves, their sons, their daughters and their widows, without the license of their lords. (a lord had the right of preventing his tenants and their families from marrying without his consent.) ) no one of their lords shall have the wardship or the disposal of their sons or daughters on account of their lands out of the town, but only the wardship of their tenements which belong to their own fee, until they become of age. ) there shall be no recognition [acknowledgment that something done by another person in one's name had one's authority] in the town. ) no one shall take tyne [wooden barrel with a certain quantity of ale, payable by the townsmen to the constable for the use of the castle] unless for the use of the lord earl, and that according to the custom of the town. ) they may grind their grain wherever they may choose. ) they may have their reasonable guilds, as well or better than they had them in the time of robert and his son william [john's wife's grandfather and father, who were earls of gloucester when the town and castle of bristol were part of the honor of gloucester]. ) no burgess may be compelled to bail any man, unless he himself chooses it, although he may be dwelling on his land. we have also granted to them all their tenures, messuages [dwelling house with adjoining land and adjacent buildings], in copses [thicket from which wood was cut], in buildings on the water or elsewhere to be held in free burgage [tenant to pay only certain fixed services or payments to his lord, but not military service (like free socage)]. we have granted also that any of them may make improvements as much as he can in erecting buildings anywhere on the bank and elsewhere, as long as the borough and town are not damaged thereby. also, they shall have and possess all waste land and void grounds and places, to be built on at their pleasure. newcastle-on-tyne's taxes were simplified in as follows: "know ye that i have granted and by this present charter have confirmed to my burgesses of newcastle upon tyne, and to all their things which they can assure to be their own, acquittance from toll and passage and pontage and from the hanse and from all other customs throughout all my land. and i prohibit all persons from vexing or disturbing them therein upon forfeiture to me." we grant to our upright men on newcastle-on-tyne and their heirs our town of newcastle-on-tyne with all its appurtenances at fee farm for pounds to be rendered yearly to us and our heirs at our exchequer by their own hand at the two terms, to wit, at easter pounds and at michaelmas pounds, saving to us our rents and prizes and assizes in the port of the same town. ranulph, earl of chester, made grants to his burgesses of coventry by this charter: "that the aforesaid burgesses and their heirs may well and honorably quietly and in free burgage hold of me and my heirs as ever in the time of my father and others of my ancestors they have held better more firmly and freer. in the second place i grant to them all the free and good laws which the burgesses of lincoln have better and freer. i prohibit and forbid my constables to draw them into the castle to plead for any cause, but they may freely have their portimote [leet court] in which all pleas belonging to me and them may be justly treated of. moreover they may choose from themselves one to act for me whom i approve, who a justice under me and over them may know the laws and customs, and keep them to my counsel in all things reasonable, every excuse put away, and may faithfully perform to me my rights. if any one happen to fall into my amercement he may be reasonably fined by my bailiff and the faithful burgesses of the court. furthermore, whatever merchants they have brought with them for the improvement of the town, i command that they have peace, and that none do them injury or unjustly send them into court. but if any foreign merchant shall have done anything improper in the town that same may be regulated in the portimote before the aforesaid justice without a suit at law." henry confirmed this charter of the earl's by as follows: i have confirmed all the liberties and free customs the earl of chester granted to them, namely, that the same burgesses may well and honorably hold in free burgage, as ever in the time of the father of the beforesaid earl, or other of his ancestors, they may have better or more firmly held; and they may have all the laws and customs which the citizens of lincoln have better and freer [e.g. their merchant guilds; all men brought to trade may be subject to the guild customs and assize of the town; those who lawfully hold land in the town for a year and a day without question and are able to prove that an accuser has been in the kingdom within the year without finding fault with them, from thence may hold the land well and in peace without pleading; those who have remained in the town a year and a day without question, and have submitted to the customs of the town and the citizens of the town are able to show through the laws and customs of the town that the accuser stood forth in the kingdom, and not a fault is found of them, then they may remain in peace in the town without question]; and that the constable of the aforesaid earl shall not bring them into the castle to plead in any case. but they may freely have their own portmanmote in which all pleas appertaining to the earl and to them may be justly treated of. moreover they may choose one from themselves to act for the earl, whom i approve, who may be a justice under the earl and over them, and who to the earl may faithfully perform his rights, and if anyone happen to fall into the earl's forfeiture he shall be acquit for pence. if by the testimony of his neighbors he cannot pay pence coins, by their advice it shall be so settled as he is able to pay, and besides, with other acquittances, that the burgesses shall not provide anything in corody [allowance in food] or otherwise whether for the said earl or his men, unless upon condition that their chattels shall be safe, and so rendered to them. furthermore, whatever merchants they have brought with them for the improvement of the town they may have peace, and none shall do them injury or unjustly send them into suit at law. but if any foreign merchant has done anything improper in the town that shall be amended [or tried] in the portmanmote before the aforesaid justice without a suit. and they who may be newcomers into the town, from the day on which they began to build in the town for the space of two years shall be acquit of all charges. mercantile privileges were granted to the shoemakers in oxford thus: "know ye that i have granted and confirmed to the corvesars of oxford all the liberties and customs which they had in the time of king henry my grandfather, and that they have their guild, so that none carry on their trade in the town of oxford, except he be of that guild. i grant also that the cordwainers who afterwards may come into the town of oxford shall be of the same guild and shall have the same liberties and customs which the corvesars have and ought to have. for this grant and confirmation, however, the corvesars and cordwainers ought to pay me every year an ounce of gold." a guild merchant for wool dominated and regulated the wool trade in many boroughs. in leicester, only guildsmen were permitted to buy and sell wool wholesale to whom they pleased or to wash their fells in borough waters. certain properties, such as those near running water, essential to the manufacture of wool were maintained for the use of guild members. the waterwheel was a technological advance replacing human labor whereby the cloth was fulled. the waterwheel turned a shaft which lifted hammers to pound the wet cloth in a trough. wool packers and washers could work only for guild members. the guild fixed wages, for instance to wool wrappers and flock pullers. strangers who brought wool to the town for sale could sell only to guild members. a guildsman could not sell wool retail to strangers nor go into partnership with a man outside the guild. each guild member had to swear the guildsman's oath, pay an entrance fee, and subject himself to the judgment of the guild in the guild court, which could fine or suspend a man from practicing his trade for a year. the advantages of guild membership extended beyond profit in the wool trade. members were free from the tolls that strangers paid. they alone were free to sell certain goods retail. they had the right to share in any bargain made in the presence of a guildsman, whether the transaction took place in leicester or in a distant market. in the general interest, the guild forbade the use of false weights and measures and the production of shoddy goods. it maintained a wool beam for weighing wool. it also forbade middlemen from profiting at the expense of the public. for instance, butchers' wives were forbidden from buying meat to sell again in the same market unless they cooked it. the moneys due to the king from the guilds of a town were collected by the town reeve. when the king wanted to raise an army, he summoned his major baron tenants-in-chief, who commanded their own armed dependent vassals, and he directed the sheriffs to command the minor tenants-in-chief and supply them with equipment. a baron could assemble an army in a day, but might use it to resist any perceived misgovernment by a king. armed conflict did not interfere much with daily life because the national wealth was still composed mostly of flocks and herds and simple buildings. machinery, furniture, and the stock of shops were still sparse. life would be back to normal within a week. henry wanted to check this power of the barons. so he took over or demolished their adulterine castles and restored the older obligation of every freeman to serve in defense of the realm, the fyrd, which was a military draft. at the king's call, barons were to appear in mail suit and helmet with sword and horse, knights and freeholders with s.[ marks] of rent or chattels in coat of mail with shield and lance, freeholders of s.[ marks] with lance and hauberk [coat of armor] and iron headpiece, burgesses and poorer freemen with lance and headpiece and wambais, and such as millers with pike and leather shirt. the spiritual and other baronies paid a commutation for personal service, called "scutage", at the rate of s. per knight's fee. barons and knights paid according to their knight's fee a scutage ranging from s. to s. as of , the military obligations of villeins were defined. the master of a household was responsible for every villein in his household. others had to form groups of ten and swear obedience to the chief of the group. the sheriff was responsible for maintaining lists of men liable for military service and procuring supplies. this national militia could be used to maintain the peace. the sheriff could call upon the military array of the county as a posse comitatus to take a band of thieves into custody or to quell disorder. for foreign wars, henry decided to use a mercenary army and a mercenary fleet. however, the nobility who were on the borders of the realm had to maintain their private armies for frequent border clashes. the other nobility now tended towards tournaments with mock foot battles between two sides. although subject to knightly rules, serious injury and death often resulted. for this reason, the church opposed them, but unsuccessfully. new taxes replaced the danegeld tax. freeholders of land paid taxes according to their ploughable land ("hidage", by the hide, and later "carucage", by the smaller norman carucate). the smaller measure curtailed estates and increased taxation. it was assessed from - s. per carcuate [ acres] and collected for the king by knights with little or no remuneration, and later by inquest of neighbors. the towns and demesne lands of the crown paid a tax based on their produce that was collected by the itinerant justices. merchants were taxed on their personal property, which was determined by an inquest of neighbors. clergy were also taxed. this new system of taxation increased the royal income about threefold. there was a standard for reliefs paid of s. [ pounds] for a knight's fee and , s. [ pounds] for a barony. at the end of henry's reign, his treasure was over , pounds. every hide of land paid the sheriff s. annually for his services in the administration and defense of the county. this was probably the old danegeld. barons and their tenants and subtenants were offered an alternative of paying shield money ["scutage"] of s. d. per fee in commutation for and instead of military service for their fiefs. this enabled henry to hire soldiers who would be more directly under his own control and to organize a more efficient army. henry ii restored the silver coinage to its standard of purity. the first great inflation in england occurred between and . most goods and services increased threefold over these forty years. great households, whether of baron, prelate, monastery, or college gave their officers and servants allowances of provisions and clothing called "liveries". the officer of such departments as the buttery [cellar storing butts of wine], the kitchen, the napery [for linen cloth], and the chandlery had his fixed allowances for every day and his livery of clothing at fixed times of the year or intervals of years. the administration of a great estate is indicated by the pipe roll of the bishopric of winchester, - , as follows: "downton: william fitzgilbert, and joselyn the reeve, and aylward the cellarer render account of pounds s. d. for arrears of the previous year. they paid and are quit. and of pounds s. d. for landgafol. and of d. by increment of tax for a park which william of witherington held for nothing. and of s. d. by increment of tax for half a virgate of land which james oisel held without service. and of s. for assize pleas in the new market. and of s. by increment of tax for other assize pleas in the market this year. sum of the whole tax pounds s. d. in quittance of one reeve, s. in quittance for repairing the bridge, s.; of one forester, s.; of two haywards from downton and wick, s.; of one hayward from witherington, d.; of fourteen drivers from downton, wick, and nunton, for the year, s.; of two drivers from witherington for the year, s. d.; of two drivers for half the year, s.; of one swineherd, of one neaterd, of one cowherd, for the year, s.; of three shepherds from wick, barford, and nunton, for the year, s.; of one shepherd from witherington, for the year, d.; of four customary tenants, for the year, s. sum of the quittances, s. d. remainder pounds. livery: for livery to john the dean, for christmas tax, pounds s. by one tally. to the same for easter tax, pounds by one tally. to the same for st. john's tax, pounds by one tally. to the same for st. michael's tax, pounds s. by one tally. to the same for corn [grain] sold in the field pounds by two tallies. to the same for standing corn [growing crops of grain], purchases, and cheeses, pounds s. d. to the same for wool, pounds s. d. by one tally. to the same for tallage pounds by one tally. sum: pounds s. d. expenses: for ironwork of carts for year and one cart for half the year, s. d. for shoeing of plough horses for the year, s. d. for wheels for carts, s. d. for carts made over, d. before the arrival of the carpenter. for wages of the smith for the year, s. d. for one cart bound in iron bought new, s. d. for wheels purchased for one cart to haul dung, d. for leather harness and trappings, iron links, plates, halters, d. for purchase of ropes, d. for purchase of sacks, d. for purchase of locks for the granary, d. for making gates for the sheepfold, s. for one gate for the farm yard, d. for an ax and tallow purchased and for repairing the spindles of the mill for the year, s. d. for one millstone purchased for the mill s. for making one gate near the mill, d. for meat prepared in the larder, s. for beer bought for cleaning carcasses, s. d. for digging perches of land around the pasture in the marsh, s. d.; for each perch d. ob. for the dovecote newly made, s. d. ob. for cutting thick planks for flooring both dispensary and butlery, s. d. for nails or pegs bought for planking beyond the cellar, d. for enclosing the garden by making gates, s. d. ob. for digging in the gardens, s. d. for the winter work of carts, s. d. for the lent work of carts, s. d. for spreading acres with dung, d. for threshing quarters of wheat at mardon for seed, s. for winnowing the same, d. for winnowing quarters of grain for seed, s. d. for threshing quarters of grain s.; for each quarter d. for threshing quarters of mixed corn [grain], s. d. for threshing quarters of barley, s. d. for threshing quarters of oats, s. d. ob. for hauling gravel to the bridge and causeway, d. for cost of dairy, viz., tines of salt, cloth, and pots, s. d. for purchase of oxen, pounds s. for hoeing acres, s. d. for wages of two carters, one neatherd, for the year, s. for wages of one carpenter for the year, s. d. for wages of one dairy woman, s. d. for payment of mowers of the meadow at nunton, d. for sheep purchased, s. for wages of one neatherd from nunton, d. for carrying casks of wine by walter locard, in the time of martinmas, s. d. for the carrying of casks of wine from southampton to downton by the seneschal, s. d. at the feast of st. lawrence. for digging perches in the farmyard, s. d.; for each perch d. ob. for allowance of food of robert of lurdon, who was sick for days, with his man, s. d. for allowance of food to sewal who was caring for horses of the lord bishop for weeks, d. for allowance of food for roger walselin, for the two times he made gifts to the lord king at clarendon, s. d. by two tallies. for allowance of food of master robert basset, for journeys, s. d. ob. for livery of william fitzgilbert, s. d. for ells of canvas purchased for laying over the wool, and cushions prepared for the court, s. for sheep purchased, with lambs, s. sum: pounds. d. sum of livery and expenses: pounds s. d. and there is owing: pounds s. d. ob. produce of granary: the same render account of and a half quarters and strike from all the produce of grain; and of quarters brought from mardon. sum: and a half quarters and strike. for sowing acres, quarters. for bread for the lord bishop, and a half quarters delivered to john de dispensa by three tallies. for the balance sold, quarters and strike. the same render account of and a half quarters from all the produce of small corn [grain]. for the balance sold, all. the same render account of quarters and strike from all the produce of mixed corn [grain]. for seeding acres, quarters and strike. for bread for autumnal works, quarters. for the balance sold, quarters. the same render account of and a half quarters from all the produce of barley. for sowing and a half acres, and a half quarters. for payment for carts, quarter. for payment for hauling dung, quarters. for allowance of food of two carters, one carpenter, one neatherd, one dairy woman, for the year, and a half quarters. for feeding hogs in the winter, quarters. for the balance sold, and a half quarters. it is quit. the same render account of quarters and bushels from all the produce of oats. in sowing and a half acres, and a half quarters. for prebends [revenues paid for a clergyman's salary] of the lord bishop and lord king, on many occasions, and a half quarters and bushels, by five tallies. for prebends of roger wakelin, and a half quarters and bushels. for prebends of master robert basset, and a half quarters and bushel. for provender [dry food for livestock] of horses of the lord bishop and horse of richard marsh, for weeks, and a half quarters and bushels. for provender of horses of the lord bishop who stayed nights at downton, quarters. for that sent to knoyle, quarters. for provender of horse of robert of lurdon for weeks, and a half quarters. for prebends of two carters quarters and bushels. for the balance sold, quarters. and there remains quarters and strike. the same render account of and a half quarters from the whole produce of beans. for planting in the garden half a quarter. for the balance sold, quarters. it is quit. the same render account of quarters and strike from all the produce of peas. for sowing acres, and a half quarters. for the balance sold and a half quarters and strike. it is quit. the same render account of quarters from all the produce of vetches [pea plants used for animal fodder]. for feeding pigs in the winter, all. it is quit. beasts of burden: the same render account of oxen remaining from the previous year. and of yoked from useless animals. and of from the will of robert copp. and of purchased. sum: . of living ones sold, . of dead, . sum: . and there remain oxen. the same render account of goats remaining from the previous year. all remain. the same render account of cows remaining from the previous year. and of yoked from useless animals, and of found. sum: . by death, . by killing, brought for the need of the lord bishop at cranbourne, . sum: . and there remain cows. the same render account of heifers and steers remaining from the previous year. in yoked cows, heifers. in yoked oxen, bulls. sum: . the same render account of yearlings remaining from the previous year. by death, . there remain , of which are female, male. the same render account of calves born this year from cows, because the rest were sterile. in tithes, . there remain . the same render account of sheep remaining from the previous year. and of sheep for the payment of herbage, after birth, and before clipping. and of bought before birth. and of young ewes mixed with two-year-olds. sum: . in live ones sold at the time of martinmas, . in those dead before birth, . in those dead after birth and before shearing, . sum: . and there remain sheep. the same render account of wethers [castrated rams] remaining from the previous year. and of wethers mixed with two-year- olds. and of rams from lindsey, which came by brother walter before shearing. sum: . in living ones sold at the time of martinmas, wethers, rams. paid to the men of bishopton before shearing by writ of the seneschal, . by death, before shearing, . sum: . and there remain sheep. the same render account of old sheep remaining, with lambs from the previous year. by death before shearing, . and there remain ; whence are young ewes, mixed with sheep, and males, mixed with wethers. the same render account of lambs born from sheep this year because were sterile, and aborted. in payment of the smith, ; of shepherds, . in tithes, . in those dead before shearing, . sum: . and there remain lambs. the same render account of large sheepskins whence were from the rams of lindsey. in tithes, . in payment of three shepherds, . in the balance sold skins with skins from lindsey which made pondera. the same render account of lamb skins. in the balance sold, all, which made and a half pondera. the same render account of cheeses from arrears of the previous year. and of small cheeses. and of larger ones from the arrears of the previous year. and of cheeses which were begun the th of april and finished on the feast of st. michael, both days being counted. and they made cheeses two by two for days, viz. from the th april to the vigil of the feast of st. peter in chains, both days being counted. sum: cheeses. in tithes . in payment of a shepherd, and mowers of the meadow from nunton, . in duty of a carter, . in autumnal work, . in expenses of the bishop in the kitchen, by one tally. in the balance sold, cheeses, which made heads, from arrears of the previous year. in the balance sold, cheeses, which made heads in this year. in expenses of the lord king and lord bishop on the feasts of st. leonard and st. martin, small cheeses, and larger ones from the arrears of the previous year. and there remain small cheeses which make one head. the same render account of hogs remaining from the previous year. and of that were born of sows. sum: pigs. in tithes, . by death, . in those killed for the larder, . sum: pigs. and there remain pigs. also suckling pigs. sum of the whole: pigs. the same render account of chickens from arrears of the previous year. and of chickens for cheriset. sum: . in expenses of the lord bishop on the feast of st. martin, by one tally. in expenses of the same on the feast of st. leonard, , by one tally. in expenses of the lord king and bishop on the feast of the apostles peter and paul, chickens, by two tallies. in allowance for food for roger wakelin, . in allowance of food for master robert basset, . by death, . sum: chickens. it is quit. the same render account of chickens, sticae of eels, suckling pigs, freed for the expenses of the lord king and bishop. >from the larder: the same freed for the expenses of the lord bishop meat of cows taken to cranbourne. the same render account of sides of bacon, arrears of the previous year. and of oxen and quarter of old beef from arrears of the previous year. and of hogs from downton. and of hogs from mardon. and of hogs from overton. and of hogs from high-clere. and of hogs from harwell. and of hogs from knoyle. sum: hogs, and meat of oxen and one quarter. in expenses of the lord bishop at the feast of st. martin, sides of bacon. in expenses of the same at the feast of st. leonard, sides of bacon, the meat of oxen, and quarter of an ox. in expenses of the same on the morrow of the feast of the holy cross, delivered to nicolas the cook, sides of bacon. in expenses of the lord bishop delivered to the same cook at knoyle on the saturday before the feast of st. michael, sides of bacon. in expenses of the same and of the lord king on the feast of the apostles peter and paul, sides of bacon. in allowance of food to master robert basset on the feast of all saints, half a side of bacon. in allowance of food to the same on wednesday and thursday before pentecost, side of bacon. in those sent to knoyle for autumnal work, sides of bacon. in three autumnal festivals at downton, and a half sides of bacon. sum: sides of bacon. and there remain sides of bacon. the same render account of skins, sausages, and offal of the said hogs. in expenses of the lord king and lord bishop at the feast of st. leonard, all. nothing remains." king richard the lion-hearted, unlike his father, was interested in warfare. he spent most of his term on crusade to recover jerusalem. for his expenses, he imposed a tax of one-tenth of rents and income from moveable goods. he also sold town charters, heiresses and heirs, widows, sheriffdoms, justiceships, earldoms, and licenses for tournaments. the crusades' contact with arabs brought to england an expansion of trade, arab horses, and arabic numerals, which included "zero" and greatly facilitated arithmetic, which was very difficult with roman numerals. the church decreed that those who went on these crusades would be remitted of their sins. at the end of this period was the reign of king john, a short man. after his mother eleanor's death in , john ruled without her influence. he had no conscience and his oaths were no good. he trusted and was trusted by no one. he had a huge appetite for money. he imposed , pounds [ , marks] on london for confirmation of its charter. he imposed levies on the capital value of all personal and moveable goods. it began the occasional subsidies called "tenths and fifteenths" from all people on incomes from movables: one-tenth from boroughs and royal demesne land, and one-fifteenth elsewhere. he sold the wardships of minors and the marriages of heiresses to the highest bidder, no matter how base. he appointed unprincipled men to be both sheriff and justice, enabling them to blackmail property holders with vexatious writs and false accusations. writs were withheld or sold at exorbitant prices. crushing penalties were imposed to increase the profits of justice. he asserted over fowls of the air the same exclusive right as over beasts of the forest. the story of robin hood portrays john's attempt to gain the crown prematurely while richard was on the crusades to recover jerusalem for christendom. (in , the bishop barons had refused to pay for a campaign of richard's war in normandy arguing that military service was only due within the kingdom of england. when richard was captured, every person in the realm was required to pay a part of his ransom of , pounds, which was double the whole revenue of the crown. aids, tallages, and carucage were imposed. the heaviest impost was one-fourth of revenue or of goods from every person.) in , strong northern barons refused a royal demand for service in france or scutage, arguing that the amount was not within custom or otherwise justified. john had private and public enemies. no one trusted him and he trusted no one. his heavy handed and arbitrary rule quickly alienated all sectors of the population: other barons, bishops, london, and the commons. they joined the barons to pressure him to sign the magna carta correcting his abuses. for instance, since john had extracted many heavy fines from barons by personally adjudging them blameworthy in disputes with others, the barons wanted judgment by their peers under the established law of the courts. in arms, the barons forced john to sign the magna carta correcting his abuses. - the law - no one, including the lord of a manor, may take land from anyone else, for instance, by the customary process of distress, without a judgment from the royal court. this did not apply to london, where a landlord leasing or renting land could take distress in his fee. no one, including the lord of a manor, shall deprive an heir of the land possessed by his father, i.e. his birthright. a tenant may marry off a daughter unless his lord shows some just cause for refusing to consent to the marriage. a tenant had to pay an "aid" to his lord when the lord's daughter married, when the lord's son was knighted, or when the lord's person was ransomed. a man [or woman] may not will away his land, but he may sell it during his lifetime. the land of a knight or other tenant of a military fee is inherited by his eldest son. the socage land of a free sokeman goes by its ancient custom before the norman conquest. if a man purchased land after his marriage, his wife's dower is still one-third of the land he had when they married, or less if he had endowed her with less. but he could then enlarge her dower to one-third of all of his lands. the same rule applied if the man had no land, but endowed his wife with chattel or money instead. dower law prevented a woman from selling her dower during the life of her husband. but he could sell it or give it away. on his death, its possessor had to give the widow the equivalent worth of the property. a widower had all his wife's lands by curtesy of the nation for his lifetime to the exclusion of her heirs. the capital messuage [chief manor] could not be given in dower or divided, but went in its entirety to its heir. heirs were firstly sons, then daughters, then grandsons per stirpes, then granddaughters per stirpes, then brothers, and then sisters of the decedent. [by taking "per stirpes" instead of "per capita", a person's share goes to that person's heirs if that person predeceases the ancestor-decedent.] male heirs of land held by military service or sons of knights who were under the age of twenty-one were considered to be in custody of their lords. the lord had wardship over the heir's land, excluding the third that was the widow's dower for her life. he had to maintain the heir in a manner suitable to his dignity and restore to him when he came of age his inheritance in good condition discharged from debts. male heirs of sokemen who were under the age of fifteen were in the custody of their nearest kindred. the son of a burgess came of age when he could count money, measure cloth, and manage his father's concerns. female heirs remained in the custody of their lords until they married. the lord was bound to find a marriage for his ward when she became fourteen years of age and then deliver her inheritance to her. she could not marry without her lord's consent, because her husband was expected to be the lord's ally and to do homage to him. but if a female heir lost her virginity, her inheritance escheated to her lord. a woman with property could not do homage because she could not perform military service, but she generally swore fealty. she could receive homage from men. bastards were not heirs, even if their father married their mother after birth. any adult inheriting land had to pay a "relief" to the lord of the land. for a knight's fee, this was s. for socage land, this was one year's value. the amount for a barony depended upon the king's pleasure. heirs (but not widows) were bound to pay the debts of their fathers and ancestors. a man who married a woman who had inherited land could not sell this land without the consent of its heirs. when a man dies, his wife shall take one-third and his heirs shall take one-third of his chattels [movables or personal property]. the other third he may dispose of by will. if he had no heirs and no will [intestate], all his chattels would escheat to his lord. any distribution of chattels would take place after all the decedent's debts were paid from the property. a will required two witnesses. the testator could name an executor, but if he did not, the next of kin was the executor. a will could not be made by a man on his death bed because he may well have lost his memory and reason. also, he could not give to a younger son if in so doing, he would deprive his lawful heir. but he could give a marriage gift to a daughter regardless of the lawful heir. usury was receiving back more than what was lent, such as interest on a loan of money. when a usurer died, all his movables went to the king. a villein may not buy his own freedom (because all that he has is his lord's), but may be set free by his lord or by someone else who buys his freedom for him. he shall also be freed if the lord seduced his wife, drew his blood, or refused to bail him either in a civil or criminal action in which he was afterwards cleared. but a freed villein did not have status to plead in court, even if he had been knighted. if his free status were tried in court, only a freeman who was a witness to his being set free could avail himself of trial by combat to decide the issue. however, if the villein remained peacefully in a privileged town a year and a day and was received into its guild as a citizen, then he was freed from villeinage in every way. a freeman who married a villein lost his freedom. if any parent of a child was a villein, then the child was also a villein. all shipwrecked persons shall be treated with kindness and none of their goods or merchandise shall be taken from them. if one kills another on a vessel, he shall be fastened to the dead body and thrown with it into the sea. if one steals from another on a vessel, he shall be shaven, tarred and feathered, and turned ashore at the first land. passage on the thames river may not be obstructed by damming up the river on each side leaving a narrow outlet to net fish. all such weirs shall be removed. - judicial procedure - henry ii wanted all freemen to be equally protected by one system of law and government. so he opened his court, the royal court, to all people of free tenure. a court of five justices professionally expert in the law, traveled with the king, and on points of difficulty consulted with him. justices began to be more than presiding officers; they, instead of those attending, rendered the judgments. the chief court was in westminster, where the weightiest decisions were made. other professional itinerant justices appeared periodically in all counties of the nation to hear certain criminal and civil cases and to hear citizens' private civil suits [common pleas]. they came to perform many other tasks, including promulgating and enforcing new legislation, seeking out encroachments on royal rights, reviewing the local communities' and officials' performance of their public duties, imposing penalties for failure to do them or for corruption, gathering information about outlaws and nonperformance of homage, and assessing feudal escheats to the crown, wardships to which the king was entitled, royal advowsons, feudal aids owed to the king, tallages of the burgesses, and debts owed to the jews. the decision-making of itinerant justices on circuits begins the process which makes the custom of the royal court the common law of the nation. the county courts, where the traveling justices heard all manner of business in the counties, adopted the doctrines of the royal court, which then acquired an appellate jurisdiction. the itinerant justices came from the same small group of royal justices who were on the royal court and the exchequer, which was headed by the justiciar. difficult cases were decided by the king and wise men of his council. tenants of manors and of escheats in royal hands, who had been excused from the monthly county court, were required to appear. side by side with the reeve and four men of the rural townships appeared the twelve legal men of each of the chartered boroughs which owed no suit to the ordinary county court. in the formation of the jury of presentment for criminal cases, each hundred sent twelve legal men and each township four to make report to the justices. women did not serve on juries. compurgation was not used; accused persons were sent directly to the ordeal. in , twelve knights or legal men from each hundred answer before any itinerant justice for their hundred in all criminal, civil, and fiscal cases. all who are bound to attend before the itinerant justices are, in the forest counties, compelled to attend the forest courts. the royal court was chiefly concerned with ) the due regulation and supervision of the conduct of local government, ) the ownership and possession of land held by free tenure ("free tenement" was decided by justices to be one held for life or one held heritably [a fee]), ) the repression of serious crime, and ) the relations between the lay and the ecclesiastical courts. the doctrine of tenure applied universally to the land law formed the basis for judicial procedure in determining land rights. those who held lands "in fee" from the king in turn subinfeudated their land to men of lesser rank. the concept of tenure covered the earl, the knight (knight's service), the church (frank-almoin [free alms]), the tenant who performed labor services, and the tenant who paid a rent (socage). other tenures were: serjeanty [providing an implement of war or performing a nonmilitary office] and burgage. all hold the land of some lord and ultimately of the king. henry was determined to protect lawful seisin of land and issued assizes giving the royal court authority to decide land law issues which had not been given justice in the county or lord's court. but he did not ordain that all litigation respecting free tenements, e.g. right of seisin, should take place in the king's court. rather he gave protection to mere possession of land, which could be justified because possession was intimately associated with the maintenance of the king's peace. these assizes included issues of novel disseisin [recent ejectment] of a person's free tenement or of his common of pasture which belonged to his freehold. though the petty assize of disseisin only provided a swift preliminary action to protect possession pending the lengthy and involved grand assize on the issue of which party had the more just claim or ultimate right of seisin, the latter action was only infrequently invoked. the temptation of a strong man to seize a neighbor's land to reap its profits for a long time until the neighbor could prove and enforce his right was deterred. any such claim of recent dispossession [novel disseisin] had to be made within three years of the disseisin. an example of a writ of novel disseisin is: the king to the sheriff, greeting. n has complained to me that r unjustly and without a judgment has disseised him of his free tenement in [houndsditch] since my last voyage to normandy. therefore i command you that, if n gives you security for prosecuting his claim, you are to see that the chattels which were taken from the tenement are restored to it, and that the tenement and the chattels remain in peace until sunday after easter. and meanwhile you are to see that the tenement is viewed by twelve free and lawful men of the neighborhood, and their names endorsed on this writ. and summon them by good summoners to be before me or my justices on the sunday after easter, ready to make the recognition. and summon r. or his bailiff if he himself cannot be found, on the security of gage and reliable securities to be there then to hear the recognition. and have there the summoners, and this writ and the names of the sureties. witness etc. then an assize panel of recognition summoned concurrently with the defendant and before he had pleaded, viewed the land in question and answered, from their knowledge, these questions of fact: ) was the plaintiff disseised of the freehold in question, unjustly and without judgment? ) did the defendant commit the disseisin? testimony of a warrantor (or an attorney sent by him in his place) or a charter of warranty served to prove seisin by gift, sale, or exchange. no pleadings were necessary and the action could proceed and judgment given even without the presence of the defendant. the justices amerced the losing party with a monetary penalty. a successful plaintiff might be awarded damages to compensate for the loss of revenue. there was also a writ for issues of inheritance of land called "mort d'ancestor". by law the tenure of a person who died seised of a tenure in a lord's demesne which was hereditary [seisin of fee] returned to the lord, who had to give it to the heir of the decedent. if the lord refused and kept it for himself or gave it to someone else, the heir could sue in the royal court, which used an similar assize panel of twelve men to decide whether the ancestor was seised as of fee in his demesne, if the plaintiff was the nearest heir, and whether the ancestor had died, gone on a crusade but not returned, or had become a monk. then it could give possession to the heir. since about , heiresses divided the land of their father if there was no son. the widow, of course, retained her dower rights. as of , the widow held her dower from the heir instead of from the husband's lord. if the heir was a minor, the guardian lord would be in actual control of the land. a national policy was implemented that in the case of the death of a freeholder, the rights of the family, his will, and his debts were to be provided for before relief was paid to his lord. eventually royal justices acquired authority to decide the ultimate question of right to land using the grand assize as an alternative to the traditional procedures which ended in trial by combat. issues of the ultimate right of seisin were brought to the royal court by a contestant in a local court who "put himself [or herself] upon the king's grand assize". the assize consisted of twelve knights from the county or neighborhood who were elected by four knights of the same county or neighborhood (selected by the sheriff or the suitors) and who were known as truthful men and were likely to possess knowledge of the facts, either from personal seeing or hearing, or from statements which their fathers had made to them from their personal knowledge. the avenue by which a person who felt he had not had justice in the manor court on his claim for certain freehold land appealed to the king was by writ of right after the manor court's decision or by a writ praecipe during the manor court's proceeding. an example of a writ praecipe is: "the king to the sheriff greeting. command [praecipe] n. to render to r. justly and without delay one hide of land in a certain vill, which the said r. complains that the aforesaid n. is withholding from him. if he does not do so, summon him by good summoners to be before me or my justices on the day after the octaves of easter, to show why he has not done so. and have the summoners and this writ. witness." when the parties appeared in court, the claimant states his suit such as: "i claim against this n. the fee of half a knight and two carucates of land in a certain vill as my right and my inheritance, of which my father (or grandfather) was seized in his demesne as of fee in the time of king henry the first, and from which he took the profits to the value of five shillings at least, in grain and hay and other profits; and this i am ready to prove by this freeman of mine, h., and if any evil befalls him them by this other man or by this third man, who saw and heard it". then the defendant chose to deny the claim word for word with proof by combat or to put himself upon the grand assize of the king. if he chose trial by combat, the parties or their champions fought. the party losing, usually by crying craven, had to pay a fine of s. if the grand assize was chosen, the action was removed to the royal court. a writ of grand assize was issued as follows: "the king to the sheriff, greeting. summon by good summoners the following twelve, namely, a. b. ..., to be before me or my justices at a certain place on a certain day, ready to declare on oath whether n. or r. has the greater right in one hide of land (or other things claimed) which the aforesaid r. claims against the aforesaid n., who is tenant, and in respect of which the aforesaid n., who is tenant, has put himself upon my assize and has sought a recognition to determine which of them has the greater right in the things claimed. and meanwhile the twelve shall view the land (or tenements from which the services are demanded). and summon by good summoners n., who is tenant, to be there to hear the recognition. witness..." the claimant could object to any of the twelve knights for just cause as determined by the court. each of the twelve gave an oath as to whether the plaintiff's or the defendant's position was correct. this oath was not to speak falsehood nor conceal truth according to knowledge gained by eyewitness or "by the words of their fathers and by such words as they are bound to have such confidence in as if they were their own". if any did not know the truth of the matter, others were found until twelve agreed [the recognitors] on which party had the greater right. perjury was punished by forfeiture of all one's goods and chattels to the king and at least one year's imprisonment. if the tenant in court vouched another to warranty, such as the lord to whom he paid homage, that warrantor would stand in his place in the proceedings. if the warrantor lost, he would have to give to his vassal equivalent land in exchange. burgage tenure was not usually decided by assize. also, if the parties were relatives, neither the assize nor the combat was available to them, but the matter had to be decided by the law of inheritance. itinerant justices could conduct these assizes: petty and grand. in , the hundred is empowered to act on all the business of the session, including all recognitions and petty assizes ordered by the king's writ, where the property in dispute was worth no more than s. [ten pounds] a year. the four knights came to be selected by the suitors of the county court rather than by the sheriff. this assize procedure extended in time to all other types of civil actions. also removable to the royal court from the county courts were issues of a lord's claim to a person as his villein (combat not available), service or relief due to a lord, dower rights, a creditor's refusal to restore a gage [something given as security] to a debtor who offered payment or a deposit, money due to a lender, a seller, or a person to whom one had an obligation under a charter, fish or harvest or cattle taken from lands unjustly occupied, cattle taken from pasture, rights to enjoy a common, to stop troubling someone's transport, to make restitution of land wrongfully occupied, to make a lord's bailiff account to him for the profits of the manor. the royal court also decided disputes regarding baronies, nuisance or encroachments on royal land or public ways or public waterways, such as diverting waters from their right course and issues of nuisance by the making or destroying of a ditch or the destruction of a pond by a mill to the injury of a person's freehold. other pleas of the crown were: insult to the royal dignity, treason, breaches of safe-conducts, and injury to the king's servants. henry involved the royal court in many criminal issues, using the agencies of the county and hundred courts. to detect crimes, he required royal justices to routinely ask selected representatives: knights or other landholders, of every neighborhood if any person were suspected of any murder, robbery, theft, etc. a traveling royal justice or a sheriff would then hold an inquest, in which the representatives answered by oath what people were reputed to have done certain crimes. they made such inquiries through assizes of presentment, usually composed of twelve men from each hundred and the four best men of each township. (these later evolved into grand juries). these assizes were an ancient institution in many parts of the country. they consisted of representatives of the hundreds, usually knights, and villages who testified under oath to all crimes committed in their neighborhood, and indicted those they suspected as responsible and those harboring them. what henry's assize did was to insist upon the adoption of a standard procedure everywhere systematically. the procedure was made more regular instead of depending on crime waves. if indicted, the suspected persons were then sent to the ordeal. there was no trial by compurgation in the royal courts, which was abolished by henry. if determined guilty, he forfeited his chattels to the king and his land reverted to his landlord. if he passed the ordeal but was ill-famed in the community, he could be banished from the community. the ordeal was abolished by the lateran council of . as before, a person could also be brought to trial by the accusation of the person wronged. if the accused still denied the charge after the accuser testified and the matter investigated by inquiries and interrogation and then analyzed, trial by combat was held, unless the accuser was over the age of sixty or maimed, in which case the accused went to the ordeal. if a man failed at the ordeal, the penalty prescribed by the assize of clarendon of was loss of a foot and abjuring the realm. the assize of northhampton of added loss of the right hand. under the former assize, a man who had a bad reputation had to abjure the realm even if he had successfully undergone the ordeal. criminal matters such as killing the king or sedition or betraying the nation or the army, fraudulent concealment of treasure trove [finding a hoard of coins which had been buried when danger approached], breach of the king's peace, homicide, murder (homicide for which there were no eyewitnesses), burning (a town, house, men, animals or other chattel for hatred or revenge), robbery, rape and falsifying (e.g. false charters or false measures or false money) were punishable by death or loss of limb. all murders were now punished alike because the applicability of the murdrum couldn't be determined since it was impossible to prove that the slain man had been english. trespass was a serious and forcible breach of the peace onto land that developed from the criminal law of felony. one found guilty of it could be fined and imprisoned as well as amerced. housebreaking, harboring outlaws, and interference with the royal perquisites of shipwreck and the beasts of the sea which were stranded on the coast [such as whales and sturgeon] were also punishable in the royal court. the royal court had grown substantially and was not always presided over by the king. to avoid court agents from having too much discretionary power, there was a systematic procedure for bringing cases to the royal court. first, a plaintiff had to apply to the king's chancery for a standardized writ into which the cause had to fit. the plaintiff had to pay a fee and provide a surety that the plea was brought in good faith. the progress of the suit was controlled at crucial points by precisely formulated writs to the sheriff, instructing him for instance, to put the disputed property under royal protection pending a decision, to impanel an assize and have it view the property in advance of the justices' arrival, to ascertain a point of fact material to the plea, or to summon a 'warrantor' to support a claim by the defendant. the royal court kept a record on its cases on parchment kept rolled up: its "rolls". the oldest roll of is almost completely comprised of land cases. anyone could appoint an agent, an "attorney", to appear in court on his behalf, it being assumed that the principal could not be present and royal authorization given. a wife could represent her husband. the principal was then bound by the actions of his agent. gradually men appeared who made a business of representing whoever would employ them. the common law system became committed to the "adversary system" with the parties struggling judicially against each other. the royal court took jurisdiction over issues of whether certain land was civil or ecclesiastical [assize utrum], and therefore whether the land owed services or payment to the crown or not. it also heard issues of disturbance of advowson, a complex of rights to income from a church and to the selection of a parson for the church [assize of darrein [last] presentment]. many churches had been built by a lord on his manor for his villeins. the lord had then appointed a parson and provided for his upkeep out of the income of the church. in later times, the lord's chosen parson was formally appointed by the bishop. by the s, many lords had given their advowsons to abbeys. this procedure used twelve recognitors selected by the sheriff. as before, the land of any person who had been outlawed or convicted of a felony escheated to his lord. his moveable goods and chattels became the king's. if he was executed, his heirs received nothing because they were of the same blood as the felon, which was corrupt: "corruption of the blood". the loss of civil rights and capacities after a sentence of death for felony or treason, which resulted in forfeiture of property and corruption of the blood, was called "attainder". the manor court heard cases arising out of the unfree tenures of the lord's vassals. it also heard distraint, also called "distress", issues. distraint was a landlord's method of forcing a tenant to perform the services of his fief. to distrain by the fief, a lord first obtained a judgment of his court. otherwise, he distrained only by goods and chattels without judgment of his court. a distraint was merely a security to secure a person's services, if he agreed he owed them, or his attendance in court, if he did not agree that he owed them. law and custom restricted the type of goods and chattels distrainable, and the time and manner of distraint. for instance, neither clothes, household utensils, nor a riding horse was distrainable. the lord could not use the chattels taken while they were in his custody. if cattle in custody were not accessible to the tenant, the lord had to feed them at his expense. the lord, if he were not the king, could not sell the chattel. this court also determined inheritance and dower issues. the court of the vill enforced the village ordinances. the hundred court met twice a month and dealt with the petty crimes of lowly men in the neighborhood of a few vills. the county and borough courts heard cases of felonies, accusations against freemen, tort, and debts. the knights make the county courts work as legal and administrative agencies of the crown. the peace of the sheriff still exists for his county. the king's peace may still be specially given, but it will cease upon the death of the king. law required every good and lawful man to be bound to follow the hue and cry when it was raised against an offender who was fleeing. the village reeve was expected to lead the chase to the boundary of the next jurisdiction, which would then take the responsibility to catch the man. admiralty issues (since no assize could be summoned on the high seas), and tenement issues of land held in frankalmoin ["free alms" for the poor to relieve the king of this burden], where the tenant was a cleric were heard in the ecclesiastical courts. before henry's reign, the church, with the pope's backing, had become more powerful and asserted more authority. henry tried to return to the concept of the king being appointed by god and as the head of the church as well as of the state, as in henry i's time, and to include the church in his reform of the legal system, which would make the spiritual jurisdiction and temporal jurisdiction conform to a common justice. toward this end, he published the constitutions of clarendon. but the archbishop of canterbury, thomas becket, refused to agree to them, although as chancellor he had seen the beneficial effects on the kingdom of henry's legal measures. the disagreement came to a head in henry's attempt to establish the principle of "one law to all" by having church clerics punished by the civil courts as before, instead of having "benefit of clergy" to be tried and punished only in ecclesiastical courts, even for secular crimes. clerics composed about one-sixth the population. the church courts had characteristically punished with spiritual penalties of a fine or a penance, and at most defrocking. it could not impose a death penalty, even for murder. when archbishop becket was murdered and became a martyr, "benefit of clergy" became a standard right, except for offenses in the king's forests. appeals could be made to the pope without the king's permission. the king could take a criminal cleric's chattels, but not his life. however, though theoretically bishops were elected by the body of bishops with the approval of the king, as a practical matter, the king chose the bishops and the abbots. it was a constant matter of dispute, in which the pope would sometimes involve himself. selection of archbishops was also a frequent matter of contention between king and pope. the church copied the assize procedure developed by the royal court to detect ecclesiastical offenses. trial was still by compurgation. bishops could request the chancery to imprison an offender who had remained excommunicant for forty days, until he made amends. chancery complied as a matter of course. this went on for six centuries. the delineations of jurisdiction among these courts were confused and there was much competing and overlapping of jurisdictions. however, the court could appoint arbitrators or suggest to the parties to compromise to avoid the harshness of a decisive judgment which might drive the losing party to violent self-help. the office of coroner was established about to supplement the judicial investigations of crimes with local officers prior to the arrival of the itinerant justices. four knights who were residents of the county and possessed sufficient land were elected by the county court for life. sometimes they had county and royal connections instead. they received no pay. they determined if sudden deaths were accidental or due to murder and the cause of death of prisoners. they also held inquests on other crime such as bodily injury, rape, and prison break. they attached [arrested] the accused and evaluated and guarded his chattels until after the trial. if the accused was found guilty, his possessions went to the king. the coroner sat with the sheriff at every county court and went with him on his turns. this office and the forbidding of sheriffs to act as justices in their own counties reduced the power of the sheriffs. the responsibility of receiving the oath of the peace is changed from the sheriff to knights, the duty of the sheriffs being only to receive and keep the criminals taken by these knights until the justices came to try them. also, at this time, the constitution of the grand jury of the county was defined. first, four knights were to be chosen in the county court. these were to select on oath two knights from each hundred. these two, also on oath, are to add by co-optation ten more for the jury of the hundred. in london, if one of two witnesses for the defense died while an action was pending, the survivor, after offering his oath, could proceed to the grave of the dead witness, and there offer oath as to what the dead man would have sworn if he had been alive. if a foreigner was bound to make oath for debt or any misdeed, he could make it with six others, his own oath being the seventh; but if could not find six supporters, he alone could make the oath and take it in the six nearest churches. in london, the method of capital punishment was being confined to hanging, instead of also being in the form of beheading, burning, drowning, stoning, or hurling from a rock. in cases of drowning, the offender was first sewn up in a sack with a snake, a dog, an ape, and a cock. chief justiciar ranulph glanvill wrote a treatise on the writs which could be brought in the royal court and the way they could be used. it was a practical manual of procedure and of the law administered in the royal court. there are personal actions such as "debt" for specific chattel or specific sum of money. this splits into two actions. the detinue award is for the specific chattel or its value. the action of "replevin" is available to the tenant to recover personal property which had been wrongly distrained, usually cattle; the goods are "repledged" pending action. also, but rarely used, are "covenant" to protect termors for leases of land for terms of years, and "trespass": a semi-criminal action brought by a private party for an offense punishable by death (or in the s by mutilation) such as murder, rape, robbery, or mayhem, that is done with force of arms and against the peace of the king. the use of trespass grew as private actions for felony were supplanted by public indictment. it occasioned outlawry in default of appearance. these personal actions were initiated in common law courts by their respective writs. these are some of the cases of novel disseisin brought to the king's court: woodbridge v. bardolf ( , king's court): ralf of woodbridge seeks before the justices his free tenement in hebston by the assize of novel disseisin against hugh bardolf. against which assize hugh said that he had that seisin by judgment of his court for the default of the same ralf. and the court has recorded the summons and distraints reasonably made on the same ralf. and ralf himself has acknowledged the summons and distraints and said that he ought not hold anything from him in that land; rather, it is of another's fee. and because neither he nor anyone for him has complained to the justices that hugh unjustly drew him into a plea concerning a tenement which ralf himself held of the fee of another lord, it is considered that hugh hold in peace. and let ralf plead by writ of right if he want and be in mercy for his false claim. turroc v. fitz walter ( , king's court): the assize came to recognize if clement son of walter unjustly and without judgment disseised matilda of turroc of her free tenement within the assize. clement comes and says that he disseised her by judgment of his court. the court is present and records that she occupied more of her lord's land than she had in dower by the sheriff and by order of the lord king, so that she was summoned and distrained to come in to court, and she so responded that she remained in mercy of s. by judgment, so that for that amercement and for other complaints she made fine with her lord for / mark [ s.] and put her land in pledge in his court and did not want to render the / mark [ s.]. and therefore by judgment of his court he seised it. matilda denies all word for word. and the same clement only produces two men from his court; and it is considered that it was no court. judgment: let matilda have her seisin and let clement be in mercy for disseisin. fitz hereward v. prior of lecton ( , king's court): the assize came to recognize if the prior of lecton unjustly and without judgment disseised reginald son of hereward and essolda his wife of his free tenement in clapston after the first coronation of the lord king. the prior says that the assize ought not be taken thereof, because he seised that land by judgment of his court for default of his service and his rent, whereof he has his court present, which asserts the same thing. it is considered that the prior replevy [give back] to them their land and give them a day in his court concerning the arrears of rents and services. and let him treat them justly by judgment of his court. stanfeld v. brewes ( , king's court): the assize comes to recognize if simon of brewes and luke cleric and peter of brewes unjustly and without a judgment disseised odo of stanfeld and juliana his wife of her free tenement in michehey within the assize. simon says that the assize ought not be taken thereof, because he took that land into his hand by judgment of his court -- which he produced and which attests to this -- for default of his service. and it was testified that odo holds that land from the same simon. simon was ordered to replevy that land to odo as well as the chattels and to treat him rightfully in his court. fitz william v. amice et al. ( , king's court): the assize comes to recognize if amice who was the wife of richard earl of clare and hugh of ceriton, john of cornherd, william of wattevill, alexander son of gilbert, alexander son of matthew, bartholomew son of alexander, robert of cornherd, and geoffrey son of leveric unjustly and without judgment disseised richard son of william of sudbury of his free tenement in sudbury after the feast of st michael next before the coronation of the lord king. the countess says that, when she was separated by papal order from the earl of clare her husband by reason of consanguinity, to which husband the vill of sudbury had been given with her as marriage portion, she came to sudbury and convoked her court and made the same richard to be summoned to come to show by what warrant he held her land. he willingly entered into the plea and vouched the earl of clare her former husband to warrant and at the day given him to have [his warrantor] he did not have him. and thus by consideration of her court she seised her land and holds it. which court she produced and which attests this. richard comes and denies that he was ever summoned or came into her court by summons or vouched to warranty or so lost seisin by consideration of the court of the countess. and this he offers [to prove]. it is considered that he defend himself -handed that he did not willingly enter into the plea and vouch to warranty. let him wage his law [prove by the -handed oath, thus, by compurgation]. pledges of the law: hugh son of hugh, wido of sudbury. day is given them at the quindene of st. john. this is the suit of richard of sudbury: [there follow the names, but only of men] against the countess amice who was the countess of clare, concerning whom he had complained concerning a novel disseisin of his free tenement in sudbury. she said that by judgment of her court for default of warranty which he had vouched did she make the [dis]seisin and thereof did she produce suit. and he denied against her and against the suit, and law was adjudged. and he comes with his law and makes it with the abovesaid suit. therefore it is considered that he recover thereof his seisin; let the countess be in mercy for unjust disseisin and also her men, of whom the same richard has complained. and let the same countess return to him the damages done thereof by a jury of law-worthy men of the vicinity. the names of the men of the countess are in the writ. a sample of crown pleas in several hundreds or wapentakes [danish name for a hundred] from to are: . denise, who was wife to anthony, appeals nicholas kam of the death of anthony, her husband, for that he wickedly slew her husband; and this she offers to prove against him under award of the court. and nicholas defends all of it. it is considered that denise's appeal is null, for in it she does not say that she saw the deed. the jurors being asked, say that they suspect him of it; the whole county likewise suspects him. let him purge himself by water [ordeal] under the assize. he has waged his law. . william de ros appeals ailward bere, roger bald, robert merchant, and nicholas parmenter, for that they came to his house and wickedly in the king's peace took away from him a certain villein of his whom he kept in chains because he wished to run away, and led him off, and in robbery carried away his wife's coffer with one mark of silver and other chattels; and this he offers to prove by his son, robert de ros, who saw it. and ailward and the others have come and defended the felony, robbery, and breach of the king's peace, and say that (as the custom is in cornwall) roger of prideaux, by the sheriff's orders, caused twelve men to come together and make oath about the said villein, whether he was the king's villein or william's and it was found that he was the king's villein, so the said roger the serjeant demanded that [william] should surrender him, and he refused, so [roger] sent to the sheriff, who then sent to deliver [the villein], who, however, had escaped and was not to be found, and william makes this appeal because he wishes to keep the chattels of thomas [the villein], to wit, two oxen, one cow, one mare, two pigs, nine sheep, eleven goats. and that this is so the jurors testify. judgment: william and robert in mercy for the false claim. william's amercement, a half-mark. robert's amercement, a half-mark. pledge for the mark, warin, robert's son. let the king have his chattels from william. pledge for the chattels, richard, hervey's son. . serlo of ennis-caven appeals osbert of dimiliock and jordan, walter's son, for that they in the king's peace wickedly assaulted, beat and seriously wounded him, so that by reason of the beating three bones were extracted from his head; and this he offers to prove against him under the court's award as a man maimed by that mayhem. and it is testified by the coroners that the wounds when fresh were shown in the county [court], and that [the bones were broken] as aforesaid. and osbert and jordan come and defend word by word. it is considered that osbert do purge himself by ordeal of iron on account of the appeal, for serlo betook himself against osbert in the first instance. and let jordan be in custody until it be known how osbert shall fare. and the other persons who are appealed as accessories are to be under pledge until [osbert's fate] be known. . the jurors say that they suspect william fisman of the death of agnes of chilleu, for the day before he had threatened her body and goods. and the four neighboring townships being sworn, suspect him of it. it is considered that he purge himself by water under the assize. . william burnell and luke of the well are suspected of the burglary at the house of richard palmer by the jurors of the hundred, and by the four neighboring townships, which are sworn. let them purge themselves by water under the assize. . malot crawe appeals robert, godfrey's son, of rape. he comes and defends. it is testified that he thus raped her and that she was seen bleeding. by leave of the justices they made concord on the terms of his espousing her. . walter wifin was burgled, and of his chattels taken from his house in the burglary certain boots were found in the house of lefchild of ranam, and the said walter pursues those boots as his. and lefchild said that he bought them in bodmin market for / pence, but he knows not from whom. and besides walter says that eleven ells of linen cloth, part of the stolen goods, were sold in lefchild's house, and all the other proceeds of the burglary, and that lefchild was the receiver of the burglars, namely, robert of hideford and alan the foresters, whom he [walter] had appealed of the crime. and lefchild defends. the jurors on being asked, say that they suspect lefchild of the said receipt. so let him purge himself by water under the assize. . eadmer of penwithen appeals martin, robert and thomas of penwithen, for that robert wounded him in the head so that twenty-eight pieces of bone were extracted, and meanwhile martin and thomas held him; and this he offers to deraign against the said robert as a man thereby maimed, under the court's award. and robert comes and defends all of it word by word. it is considered that he purge himself by ordeal of iron. let the others be in custody until it be known how robert shall fare. afterwards eadmer came and withdrew himself, and submitted to an amercement of one mark. pledges, reinfrid, gill's son, and philip his brother. let the other appellees go quit. . reginald le teinus accused of the receipt and fellowship of robert the outlaw comes and defends. the jurors say that they suspect him, and the four neighboring townships say that they suspect him of it. so let him purge himself by water under the assize. and there must be inquiry as to richard revel, who was sheriff when the said robert escaped from his custody. . osbert of reterth appeals odo hay, for that he assaulted him as he was returning from bodmin market, and in the king's peace and wickedly struck him on the hand with a stick, and afterwards struck him on the arm with his sword so that he is maimed; and this he offers to prove as a maimed man. and odo defends it all. and that [osbert] is maimed is testified by knights sent to see him. judgment: let [odo] purge himself by ordeal of iron because of this appeal. . wulward of wadebridge was burgled. and odo hay, lawrence smith, osbert mediciner, and benet his son, william miller, robert of frokemere, and maud his sister, are suspected of the burglary by the jurors of the hundred and by the four nearest townships, which are sworn. let the males purge themselves by water under the assize, and maud by ordeal of iron. roger morand fled for that burglary, and he was living in bodmin, [which town is] therefore in mercy. . robert, godfrey's son, appeals philip, william's son, for that he came on the land of [robert's] lord richard fortescue, and wickedly and in the king's peace and in robbery took eight oxen and a mantle, cape, and sword, and carried them off; and this he offers to prove against him by his body under award of the court. and philip comes and defends all of it word by word. it is considered that the appeal is null, for the oxen were not robert's, but richard's. the jurors being asked, say that [philip] did no robbery to [richard]. so richard fortescue is in mercy for a false appeal, and let philip be quit. . peter burel appeals anketil of wingely, for that he wickedly in the king's peace assaulted him in the field where he was pasturing his oxen, and beat him, and gave him four wounds in the head, and in robbery took from him an ax and a sword; and this he offers to prove against him; but he shows no wound. and anketil defends. and the county records that [peter] first appealed roger of tregadec of the same robbery and of the same wounds. therefore it is considered that the appeal is null, and let peter be in mercy for a false appeal. his amercement, a half-mark; pledge for it, ralph giffard. . the jurors are in mercy for a silly presentment, for they presented an appeal which was made in the hundred [court] and which was not presented in the county [court]. . lucy of morwinstow appeals robert de scaccis and roland of kellio and peter of lancarf of robbing her of twenty shillings and eight pence, and of a cloak, price a half-mark. and it is testified by the jurors that they did not rob her, and that she is a hireling, and that a man lay with her in a garden, and the boys hooted her, so that she left her cloak, and the boys took it and pawned it for two gallons of wine. it is considered that robert do give her three pence in respect of the wine and do go quit. and roland and peter neither come nor essoin [present an excuse for nonappearance] themselves. and their pledges were nicholas brother of alfred of bodmin and herbert reeve of bodmin, who are therefore in mercy. . osbert church accused of the death of roland, son of reginald of kennel, on the appeal of the said reginald, was detained in gaol and defends word by word. and reginald offers proof by the body of a certain freeman, arkald, who has his [reginald's] daughter to wife, who is to prove in his stead, since he has passed the age of sixty. osbert church defends all of it. the knights of the hundred of penwith say that they suspect him of the said death. the knights of kerrier [hundred] say the same. the knights of penwith [hundred] say the same. the knights of pyder [hundred] say the same. judgment: let him purge himself by water, and reginald is in mercy, for he does not allege sight and hearing, and because he has withdrawn himself, and put another in his place, who neither saw nor heard and yet offered to prove it, and so let both reginald and arkald be in mercy. osbert is purged by the water. osbert's pledges: henry little, henry of penant, ossulf black, roger of trevithow, john of glin, ralph of trelew. . roger of wick [was] appealed of the death of brictmer by the appeal of hawise, brictmer's wife, and was captured in flight, as say john of winielton and ralph of mertherin, but the flight is not testified by the hundred. kerier [hundred] says the same. penwith [hundred] says the same. so is considered that he purge himself by water. he is purged. roger's pledges: ralph of trelew, ogier of kurnick, richard, simon's son, alfred malvoisin, everwin of lande, john of kewerion, warin of tiwardeni, baldwin tirel, roger of trevithow, john of glin, william of dunham, thomas, osbert's son. . richard, william's son, appealed luke, richard's son, and william, the servant of alan clerk, of robbery and of binding him. the appellees have not come nor essoined themselves. the county together with the wapentake says that they were appealed, not of the king's peace, but of the sheriff's peace, so that the suit was and is in the county [court], and therefore they were not attached to come before the justices. therefore the jurors are in mercy for presenting what they ought not to have presented. . william, hawise's son, appeals richard, son of robert of somercotes, for that he came in the king's peace to his house at somercotes, and broke his house and robbed him of...[an abrasion] shillings, and a cape and surcoat, and twenty-five fowls, and twenty shillings worth of corn [grain], and wounded him in the head with the wound that he shows; and this he offers to prove against him as the court shall consider etc. and richard comes and defends the breach of the king's peace and the housebreaking, wounding and robbery, but confesses that he came to a certain house, which william asserts to be his [william's], as to his [richard's] own proper house, which escheated into his hand on the death of roger his villein, and there he took certain chattels which were his villein's and which on his villein's death were his [richard's] own: to wit, five thraves of oats, thirteen sheaves of barley, and twenty-five fowls; and he offers the king twenty shillings for an inquest [to find] whether this be so or no. and william says that richard says this unjustly, for the said roger never had that house nor dwelt therein, nor were those chattels roger's, but he [william] held that house as his own, and the chattels there seized were his. the jurors being questioned whether roger did thus hold the house of richard in villeinage, say, yes. also the coroners and the whole county testify that [william] never showed any wound until now; and the wound that he now shows is of recent date. therefore it is considered that the appeal is null, and let richard go quit, and william be in mercy for his false claim. pledges for the amercement, gilbert, robert's son, and richard, haldeng's son. . astin of wispington appeals simon of edlington, for that he wickedly and in the king's peace assaulted him in his meadows and put out his eye, so that he is maimed of that eye; and this he offers to prove etc. simon comes and defends all of it word by word. and the coroners and the county testify that hitherto the appeal has been duly sued, at first by [astin's] wife, and then by [astin himself]. judgment: let law be made, and let it be in the election of the appellee whether he or astin shall carry the iron. he has chosen that astin shall carry it. astin has waged the law. simon's pledges, william of land and his frankpledge and ralph of stures. astin's pledges, roger thorpe, osgot of wispington, and william, joel's brother. afterwards came [the appellor and appellee] and both put themselves in mercy. . gilbert of willingham appeals gilbert, geoffrey's son, for that he in the king's peace and wickedly set fire to his house and burned it, so that after the setting fire [the appellor] went forth and raised hue and cry so that his neighbors and the township of willingham came thither, and he showed them [the appellee] in flight and therefore they pursued him with the cry; and this he offers etc. and the appellee defends all of it word by word etc. and the neighbors and the township of willingham being questioned, say that they never saw him in flight, and that [the appellor] never showed him to them. likewise the jurors say that in their belief he appeals him out of spite rather than for just cause. therefore it is considered that the appeal is null, and the appellee is in mercy for a half-mark [ s.]. pledge for the amercement, robert walo. . william burel appeals walter morcock, for that he in the king's peace so struck and beat margery, [william's] wife, that he killed the child in her womb, and besides this beat her and drew blood. and william of manby, the beadle, testifies that he saw the wound while fresh and the blood in the wapentake [court]. and the serjeant of the riding and the coroners and the twelve knights testify that they never saw wound nor blood. and so it is considered that the appeal is null, for one part of the appeal being quashed, it is quashed altogether, and william burel is in mercy. let him be in custody. and william manby is in mercy for false testimony. pledges for william's amercement, richard of bilsby, elias of welton. . william marshall fled for the death of sigerid, denis' mother, whereof denis appeals him; and he was in the prior of sixhills' frankpledge of sixhills, which is in mercy, and his chattels were two cows and one bullock. afterwards came the prior of sixhills and undertook to have william to right before the justices. and he came, and then denis, sigerid's son, came and appealed him of his mother's death. and it was testified that [denis] had an elder brother, and that nine years are past since [sigerid] died, and that she lived almost a year after she was wounded, and that denis never appealed [william] before now. therefore it is considered that the appeal is null and that denis be in mercy. pledge for the amercement, his father, ralph, son of denis. . alice, wife of geoffrey of carlby, appealed william, roger's son, and william his son and roger his son of the death of william her brother. and alice does not prosecute. therefore let her be in mercy and let her be arrested. to judgment against the sheriff who did not imprison the said persons who were attached, whereas they are appealed of homicide, and to judgment also as to a writ which he ought to produce. . hawise, thurstan's daughter, appeals walter of croxby and william miller of the death of her father and of a wound given to herself. and she has a husband, robert franchenay, who will not stir in the matter. therefore it is considered that the appeal is null, for a woman has no appeal against anyone save for the death of her husband or for rape. and let robert be in mercy on his wife's account, for a half-mark [ s.], and let the appellees be quit. pledge for robert's amercement, richard dean of mareham, who has lay property. wapentake of aswardhurn. . juliana of creeton appeals adam of merle of battery and robbery. and adam does not come, but essoins himself as being in the king's service beyond seas. and for that it is not allowed to anyone appealed of the king's peace to leave the land without a warrant before he has been before justices learned in the law, his pledges are in mercy: to wit, segar of arceles, alan of renington, and robert of searby. adam himself is excused from the plea by the essoin that he has cast. . thomas, leofwin's son, appeals alan harvester, for that he in the king's peace assaulted him as he went on the highway, and with his force carried him into alan's house, and struck him on the arm so that he broke a small bone of his arm, whereby he is maimed, and robbed him of his cape and his knife, and held him while eimma, [alan's] wife, cut off one of his testicles and ralph pilate the other, and when he was thus dismembered and ill-treated, the said alan with his force carried him back into the road, whereupon as soon as might be he raised the cry, and the neighbors came to the cry, and saw him thus ill-treated, and then at once he sent to the king's serjeant, who came and found, so [thomas] says, the robbed things in alan's house and then as soon as might be [thomas] went to the wapentake [court] and to the county [court] and showed all this. so inquiry is made of the king's sergeant, who testifies that he came to alan's house and there found the knife and the testicles in a little cup, but found not the cape. also the whole county testifies that [thomas] never before now appealed alan of breaking a bone. and so it is considered that the appeal is null, and that [thomas] be in mercy, and that the other appellees be quit. thomas also appeals emma, alan's wife, for that she in the peace aforesaid after he was placed in her lord's house cut off one of his testicles. he also appeals ralph pilate, for that he cut off the other of his testicles. . the twelve jurors presented in their verdict that austin, rumfar's son, appealed ralph gille of the death of his brother, so that [ralph] fled, and that william, rumfar's son, appealed benet carter of the same death, and ranulf, ralph's son, appealed hugh of hyckham of the same death and baldwin of elsham and ralph hoth and colegrim as accessories. and the coroners by their rolls testify this also. but the county records otherwise, namely, that the said ralph gille, benet, hugh, baldwin, ralph [hoth] and gocegrim were all appealed by ranulf, ralph's son, and by no one else, so that four of them, to wit, ralph gille, hugh, benet and colegrim, were outlawed at the suit of the said ranulf, and that the said persons were not appealed by anyone other than the said ranulf. and for that the county could not [be heard to] contradict the coroners and the said jurors who have said their say upon oath, it is considered etc. thereupon the county forestalled the judgment and before judgment was pronounced made fine with pounds [ , s.] [to be collected throughout the county], franchises excepted. . hereward, william's son, appeals walter, hugh's son, for that he in the king's peace assaulted him and wounded him in the arm with an iron fork and gave him another wound in the head; and this he offers to prove by his body as the court shall consider. and walter defends all of it by his body. and it is testified by the coroners and by the whole county that hereward showed his wounds at the proper time and has made sufficient suit. therefore it is considered that there be battle. walter's pledges, peter of gosberton church, and richard hereward's son. hereward's pledges, william his father and the prior of pinchbeck. let them come armed in the quindene of st. swithin at leicester. . william gering appeals william cook of imprisonment, to wit, that he with his force in the king's peace and wickedly, while [gering] was in the service of his lord guy at the forge, took him and led him to freiston to the house of william longchamp, and there kept him in prison so that his lord could not get him replevied; and this he offers to prove as the court shall consider. and william cook comes and defends the felony and imprisonment, but confesses that whereas he had sent his lord's servants to seize the beasts of the said guy on account of a certain amercement which [guy] had incurred in the court of [cook's] lord [longchamp], and which though often summoned he had refused to pay, [gering] came and rescued the beasts that had been seized and wounded a servant of [cook's] lord, who had been sent to seize them, whereupon [cook] arrested [gering] until he should find pledges to stand to right touching both the wounding and the rescue, and when [gering's] lord [guy] came for him, [cook] offered to let him be replevied, but this [guy] refused, and afterwards he repeated the offer before the king's serjeant, but even then it was refused, and then [cook] let [gering] go without taking security. and guy says that he puts himself upon the wapentake, whether the imprisonment took place in manner aforesaid, and whether he [guy] at once showed the matter to the king's serjeant, or no. and william cook does the same. and the wapentake says that the alleged [imprisonment] took place in lent, and guy did not show the matter to the wapentake until a fortnight before st. botulph's day. and the county together with the coroners says that they never heard the suit in their court. therefore it is considered that the appeal is null, and guy is in mercy. and let william and those who are appealed as accessories go quit. . the jurors say that andrew, sureman's son, appealed peter, leofwin's son, thomas squire and william oildene of robbery. and he does not prosecute. so he and stephen despine and baldwin long are in mercy, and the appellees go without day. afterwards comes andrew and says that [the appellees] imprisoned him by the order of william malesoures in the said william's house, so that he sent to the sheriff that the sheriff might deliver him, whereupon the sheriff sent his serjeant and others thither, who on coming there found him imprisoned and delivered him and he produces witnesses, to wit, nicholas portehors and hugh, thurkill's son, who testify that they found him imprisoned, and he vouches the sheriff to warrant this. and the sheriff, on being questioned, says that in truth he sent thither four lawful men with the serjeant on a complaint made by nicholas portehors on andrew's behalf. and those who were sent thither by the sheriff testify that they found him at liberty and disporting himself in william's house. therefore it is considered that the appeal is null [and andrew is in mercy] for his false complaint and nicholas portehors and hugh, thurkill's son, are in mercy for false testimony. andrew and hugh are to be in custody until they have found pledges [for their amercement]. . the jurors say that geoffrey cardun has levied new customs other than he ought and other than have been usual, to wit, in taking from every cart crossing his land at winwick with eels, one stick of eels, and from a cart with greenfish, one greenfish, and from a cart with salmon, half a salmon, and from a cart with herrings, five herrings, whereas he ought to take no custom for anything save for salt crossing his land, to wit, for a cartload, one bole of salt, and in that case the salter ought to have a loaf in return for the salt, and also if the salter's cart breaks down, the salter's horses ought to have pasture on geoffrey's land without challenge while he repairs his cart. and geoffrey comes and confesses that he takes the said customs, and ought to take them, for he and his ancestors have taken them from the conquest of england, and he puts himself on the grand assize of our lord the king, and craves that a recognition be made whether he ought to take those customs or no. and afterwards he offers the king twenty shillings that this action may be put before sir geoffrey fitzpeter [the justiciar]. pledge for the twenty shillings, richard of hinton. . the jurors say that hugh, son of walter priest, was outlawed for the death of roger rombald at the suit of robert rombald, and afterwards returned under the [protection of the] king's writ, and afterwards was outlawed for the same death on the appeal of geoffrey, thurstan's son. the county therefore is asked by what warrant they outlawed the same man twice for the same death, and says that of a truth in king richard's time the said hugh was outlawed at the suit of one lucy, sister of the said roger, so that for a long time afterwards he hid himself; and at length he came into the county [court] and produced letters of sir geoffrey fitzpeter in the form following: "g. fitzpeter etc. to the sheriff of northamptonshire, greeting, know thou that the king hath pardoned to hugh, son of the priest of grafton, his flight and the outlawry adjudged to him for the death of a certain slain man, and hath signified to us by his letters that we be aiding to the said hugh in reestablishing the peace between him and the kinsfolk of the slain; wherefore we command thee that thou be aiding to the said hugh in making the peace aforesaid, and do us to wit by thy letters under seal what thou hast done in this matter, since we are bound to signify the same to the king. in witness etc. by the king's writ from beyond seas." and the said letters being read in full county [court] the county told the said hugh that he must find pledges that he would be in the king's peace, and he went away to find pledges, and afterwards did not appear. but the kinsfolk of the slain, having heard that hugh had returned after his outlawry, came to the next county [court] and robert rombald produced geoffrey, thurstan's son, who said that if he saw the said hugh he would sue against him the death of the said roger, who was [his kinsman]. and the county showed him how hugh had brought the justiciar's letters pardoning him the flight and outlawry, and that he was to find pledges to stand to the king's peace, but had not returned. whereupon the king's serjeant was ordered to seek hugh and bring him to a later county [court]. and at a later county [court] geoffrey offered himself against hugh, and hugh did not appear; whereupon the king's serjeant being questioned said that he had not found him, and the county advised [geoffrey] to come to another county [court], because if in the meantime hugh could be found, he would be brought to the county [court]. then at the third county [court] the said geoffrey offered himself, and it was testified by the serjeant that hugh had not yet been found, wherefore the county said that as hugh would not appear to the king's peace, he must bear the wolf's head as he had done before. to judgment against the coroners and the twelve jurors. . robert of herthale, arrested for having in self-defense slain roger, swein's son, who had slain five men in a fit of madness, is committed to the sheriff that he may be in custody as before, for the king must be consulted about this matter. the chattels of him who killed the five men were worth two shillings, for which richard [the sheriff must account]. . sibil, engelard's daughter, appeals ralph of sandford, for that he in the king's peace and wickedly and in breach of the peace given to her in the county [court] by the sheriff, came to the house of her lord [or husband] and broke her chests and carried off the chattels, and so treated her that he slew the child that was living in her womb. afterwards she came and said that they had made a compromise and she withdrew herself, for they have agreed that ralph shall satisfy her for the loss of the chattels upon the view and by the appraisement of lawful men; and ralph has assented to this. . william pipin slew william [or john] guldeneman and fled. he had no chattels. let him be exacted. and hugh fuller was taken for this death and put in gaol because the said john [or william] was slain in his house. and hugh gives to the king his chattels which were taken with him, that he may have an inquest [to find] whether he be guilty thereof or no. the jurors say that he is not guilty, and so let him go quit thereof. and william picot is in mercy for having sold hugh's chattels before he was convicted of the death, and for having sold them at an undervalue, for he sold them, as he says, for three shillings, and the jurors say that they were worth seventeen shillings, for which william picot and those who were his fellows ought to account. and william says that the chattels were sold by the advice of his fellows, and his fellows deny this. . robert white slew walter of hugeford and fled. the jurors say that he was outlawed for the death, and the county and the coroners say that he was not outlawed, because no one sued against him. and because the jurors cannot [be heard to] contradict the county and the coroners, therefore they are in mercy, and let robert be exacted. his chattels were [worth] fifteen shillings, for which r. of ambresleigh, the sheriff, must account. . elyas of lilleshall fled to church for the death of a woman slain at lilleshall. he had no chattels. he confessed the death and abjured the realm. alice crithecreche and eva of lilleshall and aldith and mabel, geoffrey and robert of lilleshall, and peter of hopton were taken for the death of the said woman slain at lilleshall. and alice, at once after the death, fled to the county of stafford with some of the chattels of the slain, so it is said, and was taken in that county and brought back into shropshire and there, as the king's serjeant and many knights and lawful men of the county testify, in their presence she said, that at night she heard a tumult in the house of the slain; whereupon she came to the door and looked in, and saw through the middle of the doorway four men in the house, and they came out and caught her, and threatened to kill her unless she would conceal them; and so they gave her the pelf [booty] that she had. and when she came before the [itinerant] justices she denied all this. therefore she has deserved death, but by way of dispensation [the sentence is mitigated, so] let her eyes be torn out. the others are not suspected, therefore let them be under pledges. . william, john's son, appeals walter, son of ralph hose, for that when [william's] lord guy of shawbury and [william] had come from attending the pleas of our lord the king in the county court of shropshire, there came five men in the forest of haughmond and there in the king's peace and wickedly assaulted his lord guy, and so that [walter], who was the fourth among those five, wounded guy and was accessory with the others in force as aid so that guy his lord was killed, and after having wounded his lord he [walter] came to william and held him so that he could not aid his lord; and this he offers to deraign [determine by personal combat] against him as the court shall consider. and walter comes and defends all of it word by word as the court etc. it is considered that there be battle [combat] between them. the battle [combat] is waged. day is given them, at oxford on the morrow of the octave of all saints, and then let them come armed. and ralph [walter's father] gives the king a half-mark that he may have the custody of his son, [for which sum] the pledges are john of knighton and reiner of acton, and he is committed to the custody of ralph hose, reiner of acton, john of knighton, reginald of leigh, adam of mcuklestone, william of bromley, stephen of ackleton, eudo of mark. . robert, son of robert of ferrers, appeals ranulf of tattesworth, for that he came into robert's garden and wickedly and in the king's peace assaulted robert's man roger, and beat and wounded him so that his life was despaired of, and robbed him [roger?] of a cloak, a sword, a bow and arrows: and the said roger offers to prove this by his body as the court shall consider. and ranulf comes and defends the whole of it, word by word, and offers the king one mark of silver that he may have an inquest of lawful knights [to say] whether he be guilty thereof or no. also he says that roger has never until now appealed him of this, and prays that this be allowed in his favor. [ranulf's] offering is accepted. the jurors say that in truth there was some quarrel between robert's gardener, osmund, and some footboys, but ranulf was not there, and they do not suspect him of any robbery or any tort done to robert or to osmund. also the county records that the knights who on robert's complaint were sent to view osmund's wounds found him unwounded and found no one else complaining, and that robert in his plaint spoke of osmund his gardener and never of roger, and that roger never came to the county [court] to make this appeal. therefore it is considered that ranulf be quit, and robert and roger in mercy. pledge for ranulf's mark, philip of draycot. pledges for the amercement, henry of hungerhill, and richard meverell. pledge for roger, the said robert. . one l. is suspected by the jurors of being present when reinild of hemchurch was slain, and of having aided and counseled her death. and she defends. therefore let her purge herself by the ordeal of iron; but as she is ill, the ordeal is respited until her recovery. . andrew of burwarton is suspected by the jurors of the death of one hervey, for that he concealed himself because of that death. therefore let him purge himself by ordeal of water. . godith, formerly wife of walter palmer, appeals richard of stonall, for that he in the king's peace wickedly and by night with his force came to her house and bound her and her husband, and afterwards slew the said walter her husband; and this she offers to prove against him as wife of the slain as the court shall consider. and he defends all of it. and the jurors and the whole neighborhood suspect him of that death. and so it is considered that he purge himself by ordeal of iron for he has elected to bear the iron. . the jurors of oflow hundred say that the bailiffs of tamworth have unjustly taken toll from the knights of staffordshire, to wit, for their oxen and other beasts. and the men of lichfield complain that likewise they have taken toll from them, more especially in staffordshire. and the bailiffs deny that they take anything from the knights in staffordshire. and for that they cannot [be heard to] contradict the jurors, the bailiffs are in mercy. as to the men of lichfield, [the tamworth bailiffs] say that they ought to have, and in king henry's time had, toll of them, more especially of the merchants, as well in staffordshire as in warwickshire. and the burgesses of lichfield offer the king a half-mark for an inquest by the county. and the county records that in king henry's time the men of lichfield did not pay toll in staffordshire. therefore the bailiffs are in mercy. - - - chapter - - - - the times - - baron landholders' semi-fortified stone manor houses were improved and extended. many had been licensed to be embattled or crenelated [wall indented at top with shooting spaces]. they were usually quadrangular around a central courtyard. the central and largest room was the hall, where people ate and slept. if the hall was on the first floor, the fire might be at a hearth in the middle of the floor. sometimes the lord had his own chamber, with a sleeping loft above it. having a second floor necessitated a fireplace in the wall so the smoke could go up two floors to the roof. other rooms each had a fireplace. often the hall was on the second floor and took up two stories. there was a fireplace on one wall of the bottom story. there were small windows around the top story and on the inside of the courtyard. they were usually covered with oiled paper. windows of large houses were of opaque glass supplied by a glassmaking craft. the glass was thick, uneven, distorted, and greenish in color. the walls were plastered. the floor was wood with some carpets. roofs were timbered with horizontal beams. many roofs had tiles supplied by the tile craft, which baked the tiles in kilns or over an open fire. because of the hazard of fire, the kitchen was often a separate building, with a covered way connecting it to the hall. it had one or two open fires in fireplaces, and ovens. sometimes there was a separate room for a dairy. furniture included heavy wood armchairs for the lord and lady, stools, benches, trestle tables, chests, and cupboards. outside was an enclosed garden with cabbages, peas, beans, beetroots, onions, garlic, leeks, lettuce, watercress, hops, herbs, nut trees for oil, some flowers, and a fish pond and well. bees were kept for their honey. nobles, doctors, and attorneys wore tunics to the ankle and an over-tunic almost as long, which was lined with fur and had long sleeves. a hood was attached to it. a man's hair was short and curled, with bangs on the forehead. the tunic of merchants and middle class men reached to the calf. the laborer wore a tunic that reached to the knee, cloth stockings, and shoes of heavy felt, cloth, or perhaps leather. ladies wore a full-length tunic with moderate fullness in the skirt, and a low belt, and tight sleeves. a lady's hair was concealed by a round hat tied on the top of her head. over her tunic, she wore a cloak. monks and nuns wore long black robes with hoods. the barons now managed and developed their estates to be as productive as possible, often using the successful management techniques of church estates. they kept records of their fields, tenants, and services owed by each tenant, and duties of the manor officers, such as supervision of the ploughing and harrowing. annually, the manor's profit or loss for the year was calculated. most manors were self-supporting except that iron for tools and horseshoes and salt for curing usually had to be obtained elsewhere. wine, tar, canvas and millstones were imports from other countries and bought at fairs, as was fish, furs, spices, and silks. sheep were kept in such large numbers that they were susceptible to a new disease "scab". every great household was bound to give alms. as feudalism became less military and less rough, daughters were permitted to inherit fiefs. it became customary to divide the property of a deceased man without a son equally among his daughters. lords were receiving homage from all the daughters and thereby acquiring marriage rights over all of them. also, if a son predeceased his father but left a child, that child would succeed to the father's land in the same way that the deceased would have. manors averaged about ten miles distance between each other, the land in between being unused and called "wasteland". statutes after a period of civil war proscribing the retaking of land discouraged the enclosure of waste land. some villeins bought out their servitude by paying a substitute to do his service or paying his lord a firm (from hence, the words farm and farmer) sum to hire an agricultural laborer in his place. this made it possible for a farm laborer to till one continuous piece of land instead of scattered strips. looms were now mounted with two bars. women did embroidery. the clothing of most people was made at home, even sandals. the village tanner and bootmaker supplied long pieces of soft leather for more protection than sandals. tanning mills replaced some hand labor. the professional hunter of wolves, lynx, or otters supplied head coverings. every village had a smith and possibly a carpenter for construction of ploughs and carts. the smith obtained coal from coal fields for heating the metal he worked. horse harnesses were homemade from hair and hemp. there were watermills and/or windmills for grinding grain, for malt, and/or for fulling cloth. the position of the sails of the windmills was changed by manual labor when the direction of the wind changed. most men wore a knife because of the prevalence of murder and robbery. it was an every day event for a murderer to flee to sanctuary in a church, which would then be surrounded by his pursuers while the coroner was summoned. usually, the fugitive would confess, pay compensation, and agree to leave the nation permanently. it had been long customary for the groom to endow his bride in public at the church door. this was to keep her and her children if he died first. if dower was not specified, it was understood to be one-third of all lands and tenements. from , priests taught that betrothal and consummation constituted irrevocable marriage. county courts were the center of decision-making regarding judicial, fiscal, military, and general administrative matters. the writs for the conservation of the peace, directing the taking of the oath, the pursuit of malefactors, and the observance of watch and ward, were proclaimed in full county court; attachments were made in obedience to them in the county court. the county offices were: sheriff, coroner, escheator, and constable or bailiff. there were sheriffs for counties. the sheriff was usually a substantial landholder and a knight who had been prominent in the local court. he usually had a castle in which he kept persons he arrested. he no longer bought his office and collected certain rents for himself, but was a salaried political appointee of the king. he employed a deputy or undersheriff, who was an attorney, and clerks. if there was civil commotion or contempt of royal authority, the sheriff had power to raise a posse of armed men to restore order [posse comitatus: power of the county]. the coroner watched the interests of the crown and had duties in sudden deaths, treasure trove, and shipwreck cases. there were about five coroners per county and they served for a number of years. they were chosen by the county court. the escheator was appointed annually by the treasurer to administer the crown's rights in feudal land, which until had been the responsibility of the sheriff. he was usually chosen from the local gentry. the constable and bailiff operated at the hundred and parish level to detect crime and keep the peace. they assisted sheriffs and justices of the peace, organized watches for criminals and vagrants at the village level, and raised the hue and cry along the highway and from village to village in pursuit of offenders who had committed felony or robbery. the constables also kept the royal castles; they recruited, fed, and commanded the castle garrison. county knights served sheriffs, coroners, escheators, and justices on special royal commissions of gaol-delivery. they sat in judgment in the county court at its monthly meetings, attended the two great annual assemblies when the lord, knights and freeholders of the county gathered to meet the itinerant justices who came escorted by the sheriff and weapon bearers. they served on the committees which reviewed the presentments of the hundreds and village, and carried the record of the county court to westminster when summoned there by the kings' justices. they served on the grand assize. as elected representatives of their fellow knights of the county, they assessed any taxes due from each hundred. election might be by nomination by the sheriff from a fixed list, by choice, or in rotation. they investigated and reported on local abuses and grievances. the king's justices and council often called on them to answer questions put to them on oath. in the villages, humbler freeholders and sokemen were elected to assess the village taxes. six villeins answered for the village's offenses before the royal itinerant justice. reading and writing in the english language was taught. the use of english ceased to be a mark of vulgarity. in the first governmental document was issued in english as well as in latin and french. latin started falling into disuse. boys of noblemen were taught reading, writing, latin, a musical instrument, athletics, riding, and gentlemanly conduct. girls were taught reading, writing, music, dancing, and perhaps household nursing and first aid, spinning, embroidery, and gardening. girls of high social position were also taught riding and hawking. grammar schools taught, in latin, grammar, dialectic (ascertaining word meaning by looking at its origin, its sound (e.g. soft or harsh), its power (e.g. robust and strong sound), its inflection, and its order; and avoiding obscurity and ambiguity in statements), and rhetoric [art of public speaking, oratory, and debate]. the teacher possessed the only complete copy of the latin text, and most of the school work was done orally. though books were few and precious, the students read several latin works. girls and boys of high social position usually had private teachers for grammar school, while boys of lower classes were sponsored at grammar schools such as those at oxford. discipline was maintained by the birch or rod. there was no examination for admission as an undergraduate to oxford, but a knowledge of latin with some skill in speaking latin was a necessary background. the students came from all backgrounds. some had their expenses paid by their parents, while others had the patronage of a churchman, a religious house, or a wealthy layman. they studied the "liberal arts", which derived its name from "liber" or free, because they were for the free men of rome rather than for the economic purposes of those who had to work. the works of greek authors such as aristotle were now available; the european monk thomas aquinas had edited aristotle's works to reconcile them to church doctrine. he opined that man's intellectual use of reason did not conflict with the religious belief that revelation came only from god, because reason was given to man by god. he shared aristotle's belief that the earth was a sphere, and that the celestial bodies moved around it in perfect circles. latin learning had already been absorbed without detriment to the church. a student at oxford would become a master after graduating from a seven year course of study of the seven liberal arts: [grammar, rhetoric (the source of law), aristotelian logic (which differentiates the true from the false), arithmetic, including fractions and ratios, (the foundation of order), geometry, including methods of finding the length of lines, the area of surfaces, and the volume of solids, (the science of measurement), astronomy (the most noble of the sciences because it is connected with divinity and theology), music and also aristotle's philosophy of physics, metaphysics, and ethics; and then lecturing and leading disputations for two years. he also had to write a thesis on some chosen subject and defend it against the faculty. a master's degree gave one the right to teach. further study for four years led to a doctorate in one of the professions: theology and canon or civil law. there were about , students in oxford. they drank, played dice, quarreled a lot and begged at street corners. there were mob fights between students from the north and students from the south and between students and townsmen. but when the mayor of oxford hanged two students accused of being involved in the killing of a townswoman, many masters and students left for cambridge. in , a charter created the office of chancellor of the university at oxford. he was responsible for law and order and, through his court, could fine, imprison, and excommunicate offenders and expel undesirables such as prostitutes from the town. he had authority over all crimes involving scholars, except murder and mayhem. the chancellor summoned and presided over meetings of the masters and came to be elected by indirect vote by the masters who had schools, usually no more than a room or hall with a central hearth which was hired for lectures. students paid for meals there. corners of the room were often partitioned off for private study. at night, some students slept on the straw on the floor. six hours of sleep were considered sufficient. in , the king ordered that every student must have his name on the roll of a master and the masters had to keep a list of those attending his lectures. in the friars established their chief school at oxford. they were bound by oaths of poverty, obedience, and chastity, but were not confined within the walls of a monastery. they walked barefoot from place to lace preaching. they begged for their food and lodgings. they replaced monks, who had become self-indulgent, as the most vital spiritual force among the people. the first college was founded in by walter de merton, former chancellor to the king, at oxford. a college had the living arrangements of a hall, with the addition of monastic-type rules. a warden and about scholars lived and ate meals together in the college buildings. merton college's founding documents provided that: "the house shall be called the house of the scholars of merton, and it shall be the residence of the scholars forever. . . there shall be a constant succession of scholars devoted to the study of letters, who shall be bound to employ themselves in the study of arts or philosophy, the canons or theology. let there also be one member of the collegiate body, who shall be a grammarian, and must entirely devote himself to the study of grammar; let him have the care of the students in grammar, and to him also let the more advanced have recourse without a blush, when doubts arise in their faculty. . . there is to be one person in every chamber, where scholars are resident, of more mature age than the others, who is to make his report of their morals and advancement in learning to the warden. . . the scholars who are appointed to the duty of studying in the house are to have a common table, and a dress as nearly alike as possible. . . the members of the college must all be present together, as far as their leisure serves, at the canonical hours and celebration of masses on holy and other days. . . the scholars are to have a reader at meals, and in eating together they are to observe silence, and to listen to what is read. in their chambers, they must abstain from noise and interruption of their fellows; and when they speak they must use the latin language. . . a scrutiny shall be held in the house by the warden and the seniors, and all the scholars there present, three times a year; a diligent inquiry is to be instituted into the life, conduct, morals, and progress in learning, of each and all; and what requires correction then is to be corrected, and excesses are to be visited with condign punishment. . ." educated men (and those of the s through the s), believed that the earth was the center of the universe and that it was surrounded by a giant spherical dome on which the stars were placed. the sun and moon and planets were each on a sphere around the earth that was responsible for their movements. the origin of the word "planet" meant "wanderer" because the motion of the planets changed in direction and speed. astrology explained how the position of the stars and planets influenced man and other earthly things. for instance, the position of the stars at a person's birth determined his character. the angle and therefore potency of the sun's rays influenced climate, temperament, and changes of mortal life such as disease and revolutions. unusual events such as the proximity of two planets, a comet, an eclipse, a meteor, or a nova were of great significance. a star often was thought to presage the birth of a great man or a hero. there was a propitious time to have a marriage, go on a journey, make war, and take herbal medicine or be bled by leeches, the latter of which was accompanied by religious ceremony. cure was by god, with medical practitioners only relieving suffering. but there were medical interventions such as pressure and binding were applied to bleeding. arrow and sword wounds to the skin or to any protruding intestine were washed with warm water and sewn up with needle and silk thread. ribs were spread apart by a wedge to remove arrow heads. fractured bones were splinted or encased in plaster. dislocations were remedied. hernias were trussed. bladder stones blocking urination were pushed back into the bladder or removed through an artificial opening in the bladder. surgery was performed by butchers, blacksmiths, and barbers. roger bacon, an oxford master, began the science of physics. he read arab writers on the source of light rays being from the object seen, the nature of refraction and reflection of light, and the properties of lenses. he studied the radiation of light and heat. he studied angles of reflection in plane, spherical, cylindrical, and conical mirrors, in both their concave and convex aspects. he did experiments in refraction in different media, e.g. air, water, and glass, and knew that the human cornea refracted light, and that the human eye lens was doubly convex. he comprehended the magnifying power of convex lenses and conceptualized the combination of lenses which would increase the power of vision by magnification. he realized that rays of light pass so much faster than those of sound or smell that the time is imperceptible to humans. he knew that rays of heat and sound penetrate all matter without our awareness and that opaque bodies offered resistance to passage of light rays. he knew the power of parabolic concave mirrors to cause parallel rays to converge after reflection to a focus and knew that a mirror could be produced that would start a fire at a fixed distance. these insights made it possible for jewelers and weavers to use lenses to view their work instead of glass globes full of water, which distorted all but the center of the image: "spherical aberration". the lens, whose opposite surfaces were sections of spheres, took the place of the central parts of the globe over the image. he knew about magnetic poles attracting, if different and repelling, if the same, and the relation of magnets' poles to those of the heavens and earth. he calculated the circumference of the world and the latitude and longitude of terrestrial positions. he foresaw sailing around the world. bacon began the science of chemistry when he took the empirical knowledge as to a few metals and their oxides and some of the principal alkalis, acids, and salts to the abstract level of metals as compound bodies the elements of which might be separated and recomposed and changed among the states of solid, liquid, and gas. when he studied man's physical nature, health, and disease, he opined that the usefulness of a talisman was not to bring about a physical change, but to bring the patient into a frame of mind more conducive to physical healing. he urged that there be experiments in chemistry to develop medicinal drugs. he studied different kinds of plants and the differences between arable land, forest land, pasture land, and garden land. he studied the planetary motions and astronomical tables to forecast future events. he did calculations on days in a month and days in a year which later contributed to the legal definition of a leap year. bacon was an extreme proponent of the inductive method of finding truths, e.g. by categorizing all available facts on a certain subject to ascertain the natural laws governing it. his contribution to the development of science was abstracting the method of experiment from the concrete problem to see its bearing and importance as a universal method of research. he advocated changing education to include studies of the natural world using observation, exact measurement, and experiments. his explanation of a rainbow as a result of natural laws was contrary to theological opinion that a rainbow was placed in the heavens to assure mankind that there was not to be another universal deluge. the making and selling of goods diverged e.g. as the cloth merchant severed from the tailor and the leather merchant severed from the butcher. these craftsmen formed themselves into guilds, which sought charters to require all craftsmen to belong to the guild of their craft, to have legal control of the craft work, and be able to expel any craftsman for disobedience. these guilds were composed of master craftsmen, their journeymen, and apprentices. these guilds determined the wages and working conditions of the craftsmen and petitioned the borough authorities for ordinances restraining trade, for instance by controlling the admission of outsiders to the craft, preventing foreigners from selling in the town except at fairs, limiting purchases of raw materials to suppliers within the town, forbidding night work, restricting the number of apprentices to each master craftsmen, and requiring a minimum number of years for apprenticeships. in return, these guilds assured quality control. in some boroughs, they did work for the town, such as maintaining certain defensive towers or walls of the town near their respective wards. in some boroughs, fines for infractions of these regulations were split between the guild and the government. in some towns, the merchant guilds attempted to directly regulate the craft guilds. crafts fought each other. there was a street battle with much bloodshed between the goldsmiths and the parmenters and between the tailors and the cordwainers in in london. there was also a major fight between the goldsmiths and the tailors in . the parish clerks' company was chartered in . the citizens of london had a common seal for the city. london merchants traveled throughout the nation with goods to sell exempt from tolls. most of the london aldermen were woolmongers, vintners, skinners, and grocers by turns or carried on all these branches of commerce at once. jews were allowed to make loans with interest up to d. a week for s. lent. there are three inns in london. inns typically had narrow facades, large courtyards, lodging and refreshment for the well-off, warehousing and marketing facilities for merchants, and stabling and repairs for wagons. caregiving infirmaries such as "bethlehem hospital" were established in london. one was a lunatic infirmary founded by the sheriff of london. only tiles were used for roofing in london, because wood shingles were fire hazards and fires in london had been frequent. some areas near london are disclaimed by the king to be royal forest land, so all citizens could hunt there and till their land there without interference by the royal foresters. the sheriff's court in london lost its old importance and handled mainly trespass and debt cases, while important cases went to the hustings, which was presided over by the mayor with the sheriffs and aldermen in attendance. from the early s, the mayor's court took on the work which the weekly husting could not manage. this consisted mostly of assault and robbery cases. murder and manslaughter cases were left to the royal courts. london aldermen were elected by the citizens of their respective wards in wardmotes, in which was also arranged the watch, protection against fire, and probably also assessment of the taxes within the ward. there was much effort by the commoners to influence the governance of the city. in they forced their way into the townmote and by this brute show of strength, which threatened riot, they made their own candidate mayor. subsequent elections were tumultuous. the tower of london now had outer walls of fortress buildings surrounded by a wide and deep moat, over which was one stone causeway and wooden drawbridge. within this was an inner curtain wall with twelve towers and an inner moat. the palace within was a principal residence of english monarchs, whose retinue was extensive, including the chief officers of state: lord high steward, lord high chancellor, lord high treasurer, lord great chamberlain, lord high constable, keeper of the seals, and the king's marshall; lesser officials such as the chamberlain of the candles, keeper of the tents, master steward of the larder, usher of the spithouse, marshall of the trumpets, keeper of the books, keeper of the dishes and of the cups, and steward of the buttery; and numbers of cat hunters, wolf catchers, clerks and limners, carters, water carriers, washerwomen and laundresses, chaplains, lawyers, archers, huntsmen, hornblowers, barbers, minstrels, guards and servitors, and bakers and confectioners. the fortress also contained a garrison, armory, chapels, stables, forge, wardrobe for a tailor's workroom and secure storage of valuable clothes, silver plate, and expensive imports such as sugar, rice, almonds, dried fruits, cinnamon, saffron, ginger, galingale, zedoary, pepper, nutmeg, and mace. there was a kitchen with courtyard for cattle, poultry, and pigs; dairy, pigeon loft, brewery, beehives, fruit stores, gardens for vegetables and herbs; and sheds for gardeners. there was also a mint, which minted a gold penny worth s. of silver, a jewel house, and a menagerie (with leopards, lions, a bear, and an elephant). the fortress also served as a state prison. most prisoners there had opposed the royal will; they were usually permitted to live in quarters in the same style they were used to, including servants and visits by family and friends. but occasionally prisoners were confined in irons in dark and damp dungeons. the king's family, immediate circle, and most distinguished guests dined elegantly in the great hall at midday. they would first wash their hands in hot water poured by servants over bowls. the table had silver plate, silver spoons, and cups of horn, crystal, maple wood, or silver laid on a white cloth. each guest brought his own knife in a leather sheath attached to a belt or girdle. a procession of servitors brought the many dishes to which the gentlemen helped the ladies and the young their seniors by placing the food in scooped-out half-loaves of bread that were afterwards distributed to the poor. a wine cup was handed around the table. in the winter after dinner, there would often be games of chess or dice or songs of minstrels, and sometimes dancing, juggler or acrobat displays, or storytelling by a minstrel. in the summer there were outdoor games and tournaments. hunting with hounds or hawks was popular with both ladies and gentlemen. the king would go to bed on a feather mattress with fur coverlet that was surrounded by linen hangings. his grooms would sleep on trundle beds in the same room. the queen likewise shared her bedchamber with several of her ladies sleeping on trundle beds. breakfast was comprised of a piece of bread and a cup of wine taken after the daily morning mass in one of the chapels. sometimes a round and deep tub was brought into the bedchamber by servants who poured hot water onto the bather in the tub. baths were often taken in the times of henry iii, who believed in cleanliness and sanitation. henry iii was also noted for his luxurious tastes. he had a linen table cloth, goblets of mounted cocoa-nut, a glass cup set in crystal, and silk and velvet mattresses, cushions, and bolster. he had many rooms painted with gold stars, green and red lions, and painted flowers. to his sister on her marriage, he gave goldsmith's work, a chess table, chessmen in an ivory box, silver pans and cooking vessels, robes of cloth of gold, embroidered robes, robes of scarlet, blue, and green fine linen, genoese cloth of gold, two napkins, and thirteen towels. in the king's grant to oxford, the mayor and good men were authorized to take weekly for three years / d. on every cart entering the town loaded with goods, if it was from the county, or d. if it came from outside the county; / d. for every horse load, except for brushwood; / d. on every horse, mare, ox, or cow brought to sell; and / d. for every five sheep, goats, or pigs. english ships had one mast with a square sail. the hulls were made of planks overlapping each other. there was a high fore castle [tower] on the bow, a top castle on the mast, and a high stern castle from which to shoot arrows down on other ships. there were no rowing oars, but steering was still by an oar on the starboard side of the ship. the usual carrying capacity was tuns [big casks of wine each with about gallons]. on the coasts there were lights and beacons. harbors at river mouths were kept from silting up. ships were loaded from piers. the construction of london bridge had just been finished. bricks began to be imported for building. about % of the population lived in towns. churches had stained glass windows. newcastle-on-tyne received these new rights: . and that they shall justly have their lands and tenures and mortgages and debts, whoever owes them to them. . concerning their lands and tenures within the town, right shall be done to them according to the custom of the city winton. . and of all their debts which are lent in newcastle-on-tyne and of mortgages there made, pleas shall be held at newcastle-on-tyne. . none of them shall plead outside the walls of the city of newcastle-on-tyne on any plea, except pleas of tenures outside the city and except the minters and my ministers. . that none of them be distrained by any without the said city for the repayment of any debt to any person for which he is not capital debtor or surety. . that the burgesses shall be quit of toll and lastage [duty on a ship's cargo] and pontage [tax for repairing bridges] and have passage back and forth. . moreover, for the improvement of the city, i have granted them that they shall be quit of year's gift and of scotale [pressure to buy ale at the sheriff's tavern], so that my sheriff of newcastle-on-tyne or any other minister shall not make a scotale. . and whosoever shall seek that city with his merchandise, whether foreigners or others, of whatever place they may be, they may come sojourn and depart in my safe peace, on paying the due customs and debts, and any impediment to these rights is prohibited. . we have granted them also a merchant guild. . and that none of them [in the merchant guild] shall fight by combat. the king no longer lives on his own from income from his own lands, but takes money from the treasury. a tax of a percentage of / th of personal property was levied in for a war, in return for which the king signed the magna carta. it was to be paid by all tenants-in-chief, men of the royal domain, burgesses of the boroughs and cities, clerical tenants-in-chief, and religious houses. the percentage tax came to be used frequently and ranged from about / th to / th. in , this tax was bifurcated into one percentage amount for the rural districts and a higher one for urban districts, because the burgesses had greater wealth and much of it was hard to uncover because it was in the possession of customers and debtors. it was usually / th for towns and royal domains and / th in the country. this amount of money collected by this tax increased with the wealth of the country. the king takes custody of lands of lunatics and idiots, as well as escheats of land falling by descent to aliens. henry iii took s. from his tenants-in-chief for the marriage of his daughter, and two pounds for the knighting of his son. by , the king was hiring soldiers at s. per day for knights, and d. a day for less heavily armed soldiers, and d. a day for crossbowmen. some castle-guard was done by watchmen hired at d. a day. ships were impressed when needed. sometimes private ships were authorized to ravage the french coasts and take what spoil they could. while king henry iii was underage, there was much controversy as to who should be his ministers of state, such as justiciar, chancellor, and treasurer. this led to the concept that they should not be chosen by the king alone. after he came of age, elected men from the baronage fought to have meetings and his small council in several conferences called great councils or parliaments (from french "to speak the mind") to discuss the levying of taxes and the solution of difficult legal cases, the implementation of the magna carta, the appointment of the king's ministers and sheriffs, and the receipt and consideration of petitions. the barons paid / th tax on their moveable property to have three barons of their choice added to the council. statutes were enacted. landholders were given the duty of electing four of their members in every county to ensure that the sheriff observed the law and to report his misdemeanors to the justiciar. they were also given the duty of electing four men from the county from whom the exchequer was to choose the sheriff of the year. earl montfort and certain barons forced king henry iii to summon a great council or parliament in in which the common people were represented officially by two knights from every county, two burgesses from every borough, and two representatives from each major port. so the king's permanent small council became a separate body from parliament and its members took a specific councilor's oath in to give faithful counsel, to keep secrecy, to prevent alienation of ancient demesne, to procure justice for the rich and poor, to allow justice to be done on themselves and their friends, to abstain from gifts and misuse of patronage and influence, and to be faithful to the queen and to the heir. - the law - the barons forced successive kings to sign the magna carta until it became the law of the land. it became the first statute of the official statute book. its provisions express the principle that a king is bound by the law and is not above it. however, there is no redress if the king breaches the law. the magna carta was issued by john in . a revised version was issued by henry iii in with the forest clauses separated out into a forest charter. the two versions are replicated together, with the formatting of each indicated in the titles below. {magna carta - } magna carta - & magna carta - {john, by the grace of god, king of england, lord of ireland, duke of normandy and aquitaine, and count of anjou: to the archbishops, bishops, abbots, earls, barons, justiciaries, foresters, sheriffs, reeves, ministers, and all bailiffs and others, his faithful subjects, greeting. know ye that in the presence of god, and for the health of our soul, and the souls of our ancestors and heirs, to the honor of god, and the exaltation of holy church, and amendment of our realm, by the advice of our reverend fathers, stephen, archbishop of canterbury, primate of all england, and cardinal of the holy roman church; henry, archbishop of dublin; william of london, peter of winchester, jocelin of bath and glastonbury, hugh of lincoln, walter of worcester, william of coventry, and benedict of rochester, bishops; master pandulph, the pope's subdeacon and familiar; brother aymeric, master of the knights of the temple in england; and the noble persons, william marshall, earl of pembroke; william, earl of salisbury; william, earl of warren; william, earl of arundel; alan de galloway, constable of scotland; warin fitz-gerald, peter fitz-herbert, hubert de burgh, seneshal of poitou, hugh de neville, matthew fitz-herbert, thomas basset, alan basset, philip daubeny, robert de roppelay, john marshall, john fitz-hugh, and others, our liegemen:} henry by the grace of god, king of england, lord of ireland, duke of normandy and guyan and earl of anjou, to all archbishops, bishops, abbots, priors, earls, barons, sheriffs, provosts, officers and to all bailiffs and other our faithful subjects which shall see this present charter, greeting. know ye that we, unto the honor of almighty god, and for the salvation of the souls of our progenitors and successors kings of england, to the advancement of holy church and amendment of our realm, of our mere and free will, have given and granted to all archbishops, bishops, abbots, priors, earls, barons, and to all free men of this our realm, these liberties following, to be kept in our kingdom of england forever. [i. a confirmation of liberties] first, we have granted to god, and by this our present charter confirmed, for us and our heirs forever, that the english church shall be free and enjoy her whole rights and her liberties inviolable. {and that we will this so to be observed appears from the fact that we of our own free will, before the outbreak of the dissensions between us and our barons, granted, confirmed, and procured to be confirmed by pope innocent iii the freedom of elections, which is considered most important and necessary to the english church, which charter we will both keep ourself and will it to be kept with good faith by our heirs forever.} we have also granted to all the free men of our realm, for us and our heirs forever, all the liberties underwritten, to have and to hold to them and their heirs of us and our heirs. [ii. the relief of the king's tenant of full age] if any of our earls, barons, or others who hold of us in chief by knight's service dies, and at the time of his death his heir is of full age and owes to us a relief, he shall have his inheritance on payment of [no more than] the old relief; to wit, the heir or heirs of an earl, for an entire earldom, pounds [ , s.]; the heir or heirs of a baron of an entire barony, { pounds} marks [ pounds or s.]; the heir or heirs of an entire knight's fee, s. at the most [about / of a knight's annual income]; and he who owes less shall give less, according to the old custom of fees. [iii. the wardship of an heir within age. the heir a knight] but if the heir of such be under age, his lord shall not have the ward of him, nor of his land, before that he has taken of him homage. if, however, any such heir is under age and in ward, he shall have his inheritance without relief or fine when he comes of age, that is, twenty-one years of age. so that if such an heir not of age is made a knight, yet nevertheless his land shall remain in the keeping of his lord unto the aforesaid term. [iv. no waste shall be made by a guardian in ward's lands] the guardian of the land of any heir thus under age shall take therefrom only reasonable issues, customs, and services, without destruction or waste of men or goods. and if we commit the custody of any such land to the sheriff or any other person answerable to us for the issues of the same land, and he commits destruction or waste, we will take an amends from him and recompense therefore. and the land shall be committed to two lawful and discreet men of that fee, who shall be answerable for the issues of the same land to us or to whomsoever we shall have assigned them. and if we give or sell the custody of any such land to any man, and he commits destruction or waste, he shall lose the custody, which shall be committed to two lawful and discreet men of that fee, who shall, in like manner, be answerable to us as has been aforesaid. [v. guardians shall maintain the inheritance of their wards and of bishopricks, etc.] the guardian, so long as he shall have the custody of the land, shall keep up and maintain the houses, parks, fishponds, pools, mills, and other things pertaining thereto, out of the issues of the same, and shall restore to the heir when he comes of age, all his land stocked with {ploughs and tillage, according as the season may require and the issues of the land can reasonably bear} ploughs and all other things, at the least as he received it. all these things shall be observed in the custodies of vacant archbishopricks, bishopricks, abbeys, priories, churches, and dignities, which appertain to us; except this, that such custody shall not be sold. [vi. heirs shall be married without disparagement] heirs shall be married without loss of station. {and the marriage shall be made known to the heir's nearest of kin before it is agreed.} [vii. a widow shall have her marriage, inheritance, and querentine (period of forty days during which the widow has a privilege of remaining in the mansion house of which her husband died seized). the king's widow, etc.] a widow, after the death of her husband, shall immediately and without difficulty have her marriage portion [property given to her by her father] and inheritance. she shall not give anything for her marriage portion, dower, or inheritance which she and her husband held on the day of his death, and she may remain in her husband's house for forty days after his death, within which time her dower shall be assigned to her. if that house is a castle and she leaves the castle, then a competent house shall forthwith be provided for her, in which she may honestly dwell until her dower is assigned to her as aforesaid; and in the meantime her reasonable estovers of the common [necessaries or supplies such as wood], etc. no widow shall be compelled [by penalty of fine] to marry so long as she has a mind to live without a husband, provided, however, that she gives security that she will not marry without our assent, if she holds of us, or that of the lord of whom she holds, if she holds of another. [viii. how sureties shall be charged to the king] neither we nor our bailiffs shall seize any land or rent for any debt as long as the debtor's goods and chattels suffice to pay the debt and the debtor himself is ready to satisfy therefore. nor shall the debtor's sureties be distrained as long as the debtor is able to pay the debt. if the debtor fails to pay, not having the means to pay, or will not pay although able to pay, then the sureties shall answer the debt. and, if they desire, they shall hold the debtor's lands and rents until they have received satisfaction of that which they had paid for him, unless the debtor can show that he has discharged his obligation to them. {if anyone who has borrowed from the jews any sum of money, great or small, dies before the debt has been paid, the heir shall pay no interest on the debt as long as he remains under age, of whomsoever he may hold. if the debt falls into our hands, we will take only the principal sum named in the bond.} {and if any man dies indebted to the jews, his wife shall have her dower and pay nothing of that debt; if the deceased leaves children under age, they shall have necessaries provided for them in keeping with the estate of the deceased, and the debt shall be paid out of the residue, saving the service due to the deceased's feudal lords. so shall it be done with regard to debts owed persons other than jews.} [ix. the liberties of london and other cities and towns confirmed] the city of london shall have all her old liberties and free customs, both by land and water. moreover, we will and grant that all other cities, boroughs, towns, and ports shall have all their liberties and free customs. {no scutage or aid shall be imposed in our realm unless by common counsel thereof, except to ransom our person, make our eldest son a knight, and once to marry our eldest daughter, and for these only a reasonable aid shall be levied. so shall it be with regard to aids from the city of london.} {to obtain the common counsel of the realm concerning the assessment of aids (other than in the three aforesaid cases) or of scutage, we will have the archbishops, bishops, abbots, earls, and great barons individually summoned by our letters; we will also have our sheriffs and bailiffs summon generally all those who hold lands directly of us, to meet on a fixed day, but with at least forty days' notice, and at a fixed place. in all such letters of summons, we will explain the reason therefor. after summons has thus been made, the business shall proceed on the day appointed, according to the advice of those who are present, even though not all the persons summoned have come.} {we will not in the future grant permission to any man to levy an aid upon his free men, except to ransom his person, make his eldest son a knight, and once to marry his eldest daughter, and on each of these occasions only a reasonable aid shall be levied.} [x. none shall distrain for more service than is due.] no man shall be compelled to perform more service for a knight's fee nor any freehold than is due therefrom. [xi. common pleas shall not follow the king's court] people who have common pleas shall not follow our court traveling about the realm, but shall be heard in some certain place. [xii. where and before whom assizes shall be taken. adjournment for difficulty] {land assizes of novel disseisin, mort d'ancestor and darrein presentment shall be heard only in the county where the property is situated, and in this manner: we or, if we are not in the realm, our chief justiciary, shall send two justiciaries through each county four times a year [to clear and prevent backlog], and they, together with four knights elected out of each county by the people thereof, shall hold the said assizes in the county court, on the day and in the place where that court meets.} assizes of novel disseisin, mort d'ancestor shall be heard only in the county where the property is situated, and in this manner: we, or if we are not in the realm, our chief justiciary, shall send justiciaries through each county once a year, and they together with knights of that county shall hold the said assizes in the county. {if the said assizes cannot be held on the day appointed, so many of the knights and freeholders as were present on that day shall remain as will be sufficient for the administration of justice, according to the amount of business to be done.} and those things that at the coming of our foresaid justiciaries, being sent to take those assizes in the counties, cannot be determined, shall be ended by them in some other place in their circuit; and those things which for difficulty of some articles cannot be determined by them, shall be referred to our justices of the bench and there shall be ended. [xiii. assizes of darrein presentment] assizes of darrein presentment shall always be taken before our justices of the bench and there shall be determined. [xiv. how men of all sorts shall be amerced and by whom] a freeman shall be amerced [made to pay a fine to the king] for a small offense only according to the degree thereof, and for a serious offense according to its magnitude, saving his position and livelihood; and in like manner a merchant, saving his trade and merchandise, and a villein saving his tillage, if they should fall under our mercy. none of these amercements shall be imposed except by the oath of honest men of the neighborhood. earls and barons shall be amerced only by their peers, and only in accordance with the seriousness of the offense. {no amercement shall be imposed upon a cleric's lay tenement, except in the manner of the other persons aforesaid, and without regard to the value of his ecclesiastical benefice.} no man of the church shall be amerced except in accordance with the seriousness of the offense and after his lay tenement, but not after the quantity of his spiritual benefice. [xv. making of bridges and banks] no town or freeman shall be compelled to build bridges over rivers or banks except those bound by old custom and law to do so. [xvi. defending of banks] no banks [land near a river] shall be defended [used by the king alone, e.g. for hunting], from henceforth, but such as were in defense in the time of king henry [ii] our grandfather, by the same places and in the same bounds as in his time. [xvii. holding pleas of the crown] no sheriff, constable, coroners, or other of our bailiffs shall hold pleas of our crown [but only justiciars, to prevent disparity of punishments and corruption]. {all counties, hundreds, wapentakes, and tithings (except our demesne manors) shall remain at the old rents, without any increase.} [xviii. the king's debtor dying, the king shall be first paid] if anyone holding a lay fee of us dies, and our sheriff or our bailiff show our letters patent [public letter from a sovereign or one in authority] of summons for a debt due to us from the deceased, it shall be lawful for such sheriff or bailiff to attach and list the goods and chattels of the deceased found in the lay fee to the value of that debt, by the sight and testimony of lawful men [to prevent taking too much], so that nothing thereof shall be removed therefrom until our whole debt is paid; then the residue shall be given up to the executors to carry out the will of the deceased. if there is no debt due from him to us, all his chattels shall remain the property of the deceased, saving to his wife and children their reasonable shares. {if any freeman dies intestate, his chattels shall be distributed by his nearest kinfolk and friends, under supervision of the church, saving to each creditor the debts owed him by the deceased.} [xix. purveyance for a castle] no constable or other of our bailiffs shall take grain or other chattels of any man without immediate payment, unless the seller voluntarily consents to postponement of payment. this applies if the man is not of the town where the castle is. but if the man is of the same town as where the castle is, the price shall be paid to him within days. [xx. doing of castle-guard] no constable shall compel any knight to give money for keeping of his castle in lieu of castle-guard when the knight is willing to perform it in person or, if reasonable cause prevents him from performing it himself, by some other fit man. further, if we lead or send him into military service, he shall be excused from castle-guard for the time he remains in service by our command. [xxi. taking of horses, carts, and wood] no sheriff or bailiff of ours, or any other man, shall take horses or carts of any freeman for carriage without the owner's consent. he shall pay the old price, that is, for carriage with two horses, d. a day; for three horses, d. a day. no demesne cart of any spiritual person or knight or any lord shall be taken by our bailiffs. neither we nor our bailiffs will take another man's wood for our castles or for other of our necessaries without the owner's consent. [xxii. how long felons' lands shall be held by the king] we will hold the lands of persons convicted of felony for only a year and a day [to remove the chattels and movables], after which they shall be restored to the lords of the fees. [xxiii. in what place weirs shall be removed] all fishweirs [obstructing navigation] shall be entirely removed by the thames and medway rivers, and throughout england, except upon the seacoast. [xxiv. in what case a praecipe in capite is not grantable] the [royal] writ called "praecipe in capite" [for tenements held in chief of the crown] shall not in the future be granted to anyone respecting any freehold if thereby a freeman [who has a mesne lord] may not be tried in his lord's court. [xxv. there shall be but one measure throughout the realm] there shall be one measure of wine throughout our realm, one measure of ale, and one measure of grain, to wit, the london quarter, and one breadth of dyed cloth, russets, and haberjets, to wit, two {ells} yards within the selvages. as with measures so shall it also be with weights. [xxvi. inquisition of life and limb] henceforth nothing shall be given or taken for a writ of inquisition upon life or limb, but it shall be granted freely and not denied. [xxvii. tenure of the king in socage and of another by knight's service. petit serjeanty.] if anyone holds of us by fee farm, socage, or burgage, and also holds land of another by knight's service, we will not by reason of that fee farm, socage, or burgage have the wardship of his heir, or the land which belongs to another man's fee. nor will we have the custody of such fee farm, socage, or burgage unless such fee farm owe knight's service. we will not have the wardship of any man's heir, or the land which he holds of another by knight's service, by reason of any petty serjeanty which he holds of us by service of rendering us knives, arrows, or the like. [xxviii. wages of law shall not be without witness] in the future no [royal] bailiff shall upon his own unsupported accusation put any man to trial or oath without producing credible witnesses to the truth of the accusation. [xxix. none shall be condemned without trial. justice shall not be sold or delayed.] no freeman shall be taken, imprisoned, disseised of his freehold or liberties or free customs, or be outlawed, banished, or in any way ruined, nor will we prosecute or condemn him, except by the lawful judgment of his peers or by the law of the land. to no one will we sell [by bribery], to none will we deny or delay, right or justice. [xxx. merchant strangers coming into this realm shall be well used] all merchants shall have safe conduct to go and come out of and into england, and to stay in and travel through england by land and water, to buy and sell, without evil tolls, in accordance with old and just customs, except, in time of war, such merchants as are of a country at war with us. if any such be found in our realm at the outbreak of war, they shall be detained, without harm to their bodies or goods, until it be known to us or our chief justiciary how our merchants are being treated in the country at war with us. and if our merchants are safe there, then theirs shall be safe with us. {henceforth anyone, saving his allegiance due to us, may leave our realm and return safely and securely by land and water, except for a short period in time of war, for the common benefit of the realm.} [xxxi. tenure of a barony coming into the king's hands by escheat] if anyone dies holding of any escheat, such as the honor of wallingford, nottingham, boulogne, {lancaster,} or other escheats which are in our hands and are baronies, his heir shall not give any relief or do any service to us other than he would owe to the baron, if such barony had been in the baron's hands. and we will hold the escheat in the same manner in which the baron held it. nor shall we have, by occasion of any barony or escheat, any escheat or keeping of any of our men, unless he who held the barony or escheat elsewhere held of us in chief. persons dwelling outside the forest [in the county] need not in the future come before our justiciaries of the forest in answer to a general summons unless they are impleaded or are sureties for any person or persons attached for breach of forest laws. [xxxii. lands shall not be aliened to the prejudice of the lord's service] no freeman from henceforth shall give or sell any more of his land, but so that of the residue of the lands the lord of the fee may have the service due to him which belongs to the fee. {we will appoint as justiciaries, constables, sheriffs, or bailiffs only such men as know the law of the land and will keep it well.} [xxxiii. patrons of abbeys shall have the custody of them when vacant] all barons who had founded abbeys of which they have charters of english kings or old tenure, shall have the custody of the same when vacant, as is their due. all forests which have been created in our time shall forthwith be disafforested. {so shall it be done with regard to river banks which have been enclosed by fences in our time.} {all evil customs concerning forests and warrens [livestock grounds in forests], foresters and warreners, sheriffs and their officers, or riverbanks and their conservators shall be immediately investigated in each county by twelve sworn knights of such county, who are chosen by honest men of that county, and shall within forty days after this inquest be completely and irrevocably abolished, provided always that the matter has first been brought to our knowledge, or that of our justiciars, if we are not in england.} {we will immediately return all hostages and charters delivered to us by englishmen as security for the peace or for the performance of loyal service.} {we will entirely remove from their offices the kinsmen of gerald de athyes, so that henceforth they shall hold no office in england: engelard de cigogne, peter, guy, and andrew de chanceaux, guy de cigogne, geoffrey de martigny and his brothers, philip mark and his brothers, and geoffrey his nephew, and all their followers.} {as soon as peace is restored, we will banish from our realm all foreign knights, crossbowmen, sergeants, and mercenaries, who have come with horses and arms, to the hurt of the realm.} {if anyone has been disseised or deprived by us, without the legal judgment of his peers, of lands, castles, liberties, or rights, we will immediately restore the same, and if any disagreement arises on this, the matter shall be decided by judgment of the twenty- five barons mentioned below in the clause for securing the peace. with regard to all those things, however, of which any man was disseised or deprived, without the legal judgment of his peers, by king henry [ii] our father or our brother king richard, and which remain in our hands or are held by others under our warranty, we shall have respite during the term commonly allowed to the crusaders, excepting those cases in which a plea was begun or inquest made on our order before we took the cross; when, however, we return from our pilgrimage, or if perhaps we do not undertake it, we will at once do full justice in these matters.} {likewise, we shall have the same respite in rendering justice with respect to the disafforestation or retention of those forests which henry [ii] our father or richard our brother afforested, and concerning custodies of lands which are of the fee of another, which we hitherto have held by reason of the fee which some person has held of us by knight's service, and to abbeys founded on fees other than our own, in which the lord of that fee asserts his right. when we return from our pilgrimage, or if we do not undertake it, we will forthwith do full justice to the complainants in these matters.} [xxxiv. in what only case a woman shall have an appeal of death] no one shall be arrested or imprisoned upon a woman's appeal for the death of any person other than her husband [since no woman was expected to personally engage in trial by combat]. [xxxv. at what time shall be kept a county court, sheriff's turn and a leet court (court of criminal jurisdiction excepting felonies)] no county court from henceforth shall be held, but from month to month; and where greater time has been used, there shall be greater. nor shall any sheriff, or his bailiff, keep his turn in the hundred but twice in the year; and no where but in due place and accustomed time, that is, once after easter, and again after the feast of saint michael. and the view of frankpledge [the right of assembling the whole male population over years except clergy, earls, barons, knights, and the infirm, at the leet or soke court for the capital frankpledges to give account of the peace kept by individuals in their respective tithings] shall be likewise at the feast of saint michael without occasion, so that every man may have his liberties which he had, or used to have, in the time of king henry [ii] our grandfather, or which he has since purchased. the view of frankpledge shall be so done, that our peace may be kept; and that the tything be wholly kept as it has been accustomed; and that the sheriff seek no occasions, and that he be content with so much as the sheriff was wont to have for his view-making in the time of king henry our grandfather. [xxxvi. no land shall be given in mortmain] it shall not be lawful from henceforth to any to give his land to any religious house, and to take the same land again to hold of the same house [thereby extinguishing the feudal rights of the temporal lord]. nor shall it be lawful to any house of religion to take the lands of any, and to lease the same to him of whom he received it. if any from henceforth give his lands to any religious house, and thereupon be convicted, the gift shall be utterly void, and the land shall accrue to the lord of the fee. {all fines unjustly and unlawfully given to us, and all amercements levied unjustly and against the law of the land, shall be entirely remitted or the matter decided by judgment of the twenty-five barons mentioned below in the clause for securing the peace, or the majority of them, together with the aforesaid stephen, archbishop of canterbury, if he himself can be present, and any others whom he may wish to bring with him for the purpose; if he cannot be present, the business shall nevertheless proceed without him. if any one or more of the said twenty-five barons has an interest in a suit of this kind, he or they shall step down for this particular judgment, and be replaced by another or others, elected and sworn by the rest of the said barons, for this occasion only.} {if we have disseised or deprived the welsh of lands, liberties, or other things, without legal judgment of their peers, in england or wales, they shall immediately be restored to them, and if a disagreement arises thereon, the question shall be determined in the marches by judgment of their peers according to the law of england as to english tenements, the law of wales as to welsh tenements, the law of the marches as to tenements in the marches. the same shall the welsh do to us and ours.} {but with regard to all those things of which any welshman was disseised or deprived, without legal judgment of his peers, by king henry [ii] our father or our brother king richard, and which we hold in our hands or others hold under our warranty, we shall have respite during the term commonly allowed to the crusaders, except as to those matters whereon a suit had arisen or an inquisition had been taken by our command prior to our taking the cross. immediately after our return from our pilgrimage, or if by chance we do not undertake it, we will do full justice according to the laws of the welsh and the aforesaid regions.} {we will immediately return the son of llywelyn, all the welsh hostages, and the charters which were delivered to us as security for the peace.} {with regard to the return of the sisters and hostages of alexander, king of the scots, and of his liberties and rights, we will do the same as we would with regard to our other barons of england, unless it appears by the charters which we hold of william his father, late king of the scots, that it ought to be otherwise; this shall be determined by judgment of his peers in our court.} [xxxvii. subsidy in respect of this charter, and the charter of the forest, granted to the king.] escuage [shield military service] from henceforth shall be taken as it was wont to be in the time of king henry [ii] our grandfather; reserving to all archbishops, bishops, abbots, priors, templers, hospitallers, earls, barons, and all persons as well spiritual as temporal; all their free liberties and free customs, which they have had in time passed. and all these customs and liberties aforesaid, which we have granted to be held within this our realm, as much as pertains to us and our heirs, we shall observe. {all the customs and liberties aforesaid, which we have granted to be enjoyed, as far as it pertains to us towards our people throughout our realm, let all our subjects, whether clerics or laymen, observe, as far as it pertains toward their dependents.} and all men of this our realm, as well spiritual as temporal (as much as in them is) shall observe the same against all persons in like wise. and for this our gift and grant of these liberties, and of other constrained in our charter of liberties of our forest, the archbishops, bishops, abbots, priors, earls, barons, knights, freeholders, and our other subjects, have given unto us the fifteenth part of all their movables. and we have granted unto them on the other part, that neither we, nor our heirs, shall procure or do any thing whereby the liberties in this charter contained shall be infringed or broken. and if any thing be procured by any person contrary to the premises, it shall be had of no force nor effect. [enforcement] {whereas we, for the honor of god and the reform of our realm, and in order the better to allay the discord arisen between us and our barons, have granted all these things aforesaid. we, willing that they be forever enjoyed wholly and in lasting strength, do give and grant to our subjects the following security, to wit, that the barons shall elect any twenty-five barons of the realm they wish, who shall, with their utmost power, keep, hold, and cause to be kept the peace and liberties which we have granted unto them and by this our present charter have confirmed, so that if we, our justiciary, bailiffs, or any of our ministers offends in any respect against any man, or transgresses any of these articles of peace or security, and the offense is brought before four of the said twenty-five barons, those four barons shall come before us, or our chief justiciary if we are out of the realm, declaring the offense, and shall demand speedy amends for the same. if we or, in case of our being out of the realm, our chief justiciary fails to afford redress within forty days from the time the case was brought before us or, in the event of our having been out of the realm, our chief justiciary, the aforesaid four barons shall refer the matter to the rest of the twenty-five barons, who, together with the commonalty of the whole country, shall distrain and distress us to the utmost of their power, to wit, by capture of our castles, lands, and possessions and by all other possible means, until compensation is made according to their decision, saving our person and that of our queen and children; as soon as redress has been had, they shall return to their former allegiance. anyone in the realm may take oath that, for the accomplishment of all the aforesaid matters, he will obey the orders of the said twenty-five barons and distress us to the utmost of his power; and we give public and free leave to everyone wishing to take oath to do so, and to none will we deny the same. moreover, all such of our subjects who do not of their own free will and accord agree to swear to the said twenty-five barons, to distrain and distress us together with them, we will compel to do so by our command in the aforesaid manner. if any one of the twenty-five barons dies or leaves the country or is in any way hindered from executing the said office, the rest of the said twenty-five barons shall choose another in his stead, at their discretion, who shall be sworn in like manner as the others. in all cases which are referred to the said twenty-five barons to execute, and in which a difference arises among them, supposing them all to be present, or in which not all who have been summoned are willing or able to appear, the verdict of the majority shall be considered as firm and binding as if the whole number had been of one mind. the aforesaid twenty-five shall swear to keep faithfully all the aforesaid articles and, to the best of their power, to cause them to be kept by others. we will not procure, either by ourself or any other, anything from any man whereby any of these concessions or liberties may be revoked or abated. if any such procurement is made, let it be null and void; it shall never be made use of either by us or by any other.} [amnesty] {we have also fully forgiven and pardoned all ill-will, wrath, and malice which has arisen between us and our subjects, both clergy and laymen, during the disputes, to and with all men. moreover, we have fully forgiven and, as far as it pertains to us, wholly pardoned to and with all, clergy and laymen, all offenses made in consequence of the said disputes from easter in the sixteenth year of our reign until the restoration of peace. over and above this, we have caused letters patent to be made for stephen, archbishop of canterbury, henry, archbishop of dublin, the above-mentioned bishops, and master pandulph, for the aforesaid security and concessions.} {wherefore we will that, and firmly command that, the english church shall be free and all men in our realm shall have and hold all the aforesaid liberties, rights, and concessions, well and peaceably, freely, quietly, fully, and wholly, to them and their heirs, of us and our heirs, in all things and places forever, as is aforesaid. it is moreover sworn, as will on our part as on the part of the barons, that all these matters aforesaid shall be kept in good faith and without deceit. witness the above-named and many others. given by our hand in the meadow which is called runnymede, between windsor and staines, on the fifteenth day of june in the seventeenth year of our reign.} these being witnesses: lord s. archbishop of canterbury, e. bishop of london, f. bishop of bathe, g. of wincester, h. of lincoln, r. of salisbury, w. of rochester, x. of worcester, f. of ely, h. of hereford, r. of chichester, w. of exeter, bishops; the abbot of st. edmonds, the abbot of st. albans, the abbot of bello, the abbot of st. augustines in canterbury, the abbot of evesham, the abbot of westminster, the abbot of bourgh st. peter, the abbot of reding, the abbot of abindon, the abbot of malmbury, the abbot of winchcomb, the abbot of hyde, the abbot of certesey, the abbot of sherburn, the abbot of cerne, the abbot of abborebir, the abbot of middleton, the abbot of seleby, the abbot of cirencester, h. de burgh justice, h. earl of chester and lincoln, w. earl of salisbury, w. earl of warren, g. de clare earl of gloucester and hereford, w. de ferrars earl of derby, w. de mandeville earl of essex, h. de bygod earl of norfolk, w. earl of albemarle, h. earl of hereford, f. constable of chester, g. de tos, h. fitzwalter, r. de byponte, w. de bruer, r. de montefichet, p. fitzherbert, w. de aubenie, f. gresly, f. de breus, f. de monemue, f. fitzallen, h. de mortimer, w. de beuchamp, w. de st. john, p. de mauli, brian de lisle, thomas de multon, r. de argenteyn, g. de nevil, w. de mauduit, f. de balun, and others. given at westminster the th day of february the th year of our reign. we, ratifying and approving these gifts and grants aforesaid, confirm and make strong all the same for us and our heirs perpetually, and by the tenour of these presents, do renew the same; willing and granting for us and our heirs, that this charter, and all singular his articles, forever shall be steadfastly, firmly, and inviolably observed; and if any article in the same charter contained, yet hitherto peradventure has not been kept, we will, and by royal authority, command, from henceforth firmly they be observed. statutes which were enacted after the magna carta follow: nuisance is recognized by this statute: "every freeman, without danger, shall make in his own wood, or in his land, or in his water, which he has within our forest, mills, springs, pools, clay pits, dikes, or arable ground, so that it does not annoy any of his neighbors." anyone taking a widow's dower after her husband's death must not only return the dower, but pay damages in the amount of the value of the dower from the time of death of the husband until her recovery of seisin. widows may bequeath the crop of their ground as well of their dowers as of their other lands and tenements. freeholders of tenements on manors shall have sufficient ingress and egress from their tenements to the common pasture and as much pasture as suffices for their tenements. "grain shall not be taken under the pretense of borrowing or the promise of after-payment without the permission of the owner." "a parent or other who forcefully leads away and withholds, or marries off, an heir who is a minor (under ), shall yield the value of the marriage and be imprisoned until he has satisfied the king for the trespass. if an heir years or older marries without his lord's permission to defraud him of the marriage and the lord offers him reasonable and convenient marriage, without disparagement, then the lord shall hold his land beyond the term of his age, that, of twenty one years, so long that he may receive double the value of the marriage as estimated by lawful men, or after as it has been offered before without fraud or collusion, and after as it may be proved in the king's court. any lord who marries off a ward of his who is a minor and cannot consent to marriage, to a villain or other, such as a burgess, whereby the ward is disparaged, shall lose the wardship and all its profits if the ward's friends complain of the lord. the wardship and profit shall be converted to the use of the heir, for the shame done to him, after the disposition and provision of his friends." (the "marriage" could be annulled by the church.) "if an heir of whatever age will not marry at the request of his lord, he shall not be compelled thereunto; but when he comes of age, he shall pay to his lord the value of the marriage before receiving his land, whether or not he himself marries." "interest shall not run against any minor, from the time of death of his ancestor until his lawful age; so nevertheless, that the payment of the principal debt, with the interest that was before the death of his ancestor shall not remain." the value of debts to be repaid to the king or to any man shall be reasonably determined by the debtor's neighbors and not by strangers. a debtors' plough cattle or sheep cannot be taken to satisfy a debt. the wards and escheats of the king shall be surveyed yearly by three people assigned by the king. the sheriffs, by their counsel, shall approve and let to farm such wards and escheats as they think most profitable for the king. the sheriffs shall be answerable for the issues thereof in the exchequer at designated times. the collectors of the customs on wool exports shall pay this money at the two designated times and shall make yearly accounts of all parcels in ports and all ships. by statute leap year was standardized throughout the nation, "the day increasing in the leap year shall be accounted in that year", "but it shall be taken and reckoned in the same month wherein it grew and that day and the preceding day shall be counted as one day." "an english penny, called a sterling, round and without any clipping, shall weigh wheat grains dry in the middle of the ear." measurements of distance were standardized to twelve inches to a foot, three feet to a yard, and so forth up to an acre of land. goods which could only be sold by the standard weights and measures (such as ounces, pounds, gallons, bushels) included sacks of wool, leather, skins, ropes, glass, iron, lead, canvas, linen cloth, tallow, spices, confections cheese, herrings, sugar, pepper, cinnamon, nutmeg, wheat, barley, oats, bread, and ale. the prices required for bread and ale were based on the market price for the wheat, barley, and oats from which they were made. the punishment for repeated violations of required measures, weights, or prices of bread and ale by a baker or brewer; selling of spoiled or unwholesome wine, meat, fish by brewers, butchers, or cooks; or a steward or bailiff receiving a bribe was reduced to placement in a pillory with a shaven head so that these men would still be fit for military service and not overcrowd the gaols. forest penalties were changed so that "no man shall lose either life or member [limb] for killing of our deer. but if any man be taken and convicted for taking our venison, he shall make a grievous fine, if he has anything. and if he has nothing to lose, he shall be imprisoned for a year and a day. and after that, if he can find sufficient sureties, he shall be delivered, and, if not, he shall abjure the realm of england." the forest charter provided that: every freeman may allow his pigs to eat in his own wood in the king's forest. he may also drive his pigs through the king's forest and tarry one night within the forest without losing any of his pigs. but people having greyhounds must keep them out of the forest so they don't maim the deer. the forest charter also allowed magnates traveling through the king's forest on the king's command to come to him, to kill one or two deer as long as it was in view of the forester if he was present, or while having a horn blown, so it did not seem to be theft. after a period of civil war, the following statutes were enacted: "all persons, as well of high as of low estate, shall receive justice in the king's court; and none shall take any such revenge or distress by his own authority, without award of our court, although he is damaged or injured, whereby he would have amends of his neighbor either higher or lower." the penalty is a fine according to the trespass. a fraudulent conveyance to a minor or lease for a term of years made to defraud a lord of a wardship shall be void. a lord who maliciously and wrongfully alleges this to a court shall pay damages and costs. if a lord will not render unto an heir his land when he comes of age or takes possession away from an heir of age or removes anything from the land, he shall pay damages. (the king retained the right to take possession of an heir's land for a year or, in lieu of this, to take one year's profit from the land in addition to the relief.) kinsmen of a minor heir who have custody of his land held in socage shall make no waste, sale, nor destruction of the inheritance and shall answer to the heir when he comes of age for the issues of the land, except for the reasonable costs of these guardians. no lord may distrain any of his tenants. no one may drive animals taken by distraint out of the county where they have been taken. "farmers during their terms, shall not make waste, sale, nor exile of house, woods, and men, nor of any thing else belonging to the tenements which they have to farm". church law required that planned marriages be publicly announced by the priest so that any impediment could be made known. if a marriage was clandestine or both parties knew of an impediment, or it was within the prohibited degrees of consanguinity, the children would be illegitimate. according to church rules, a man could bequeath his personal property subject to certain family rights. these were that if only the wife survived, she received half the property. similarly, if children survived, but no wife, they received half the property. when the wife and children survived, each party received one third. the church hoped that the remaining fraction would go to the church as a reward for praying for the deceased's soul. it taught that dying without a will was sinful. adults were to confess their sins at least yearly to their parish priest, which confession would be confidential. henry de bracton, a royal justice and the last great ecclesiastical attorney, wrote an unfinished treatise: a tract on the laws and customs of england, systematizing and organizing the law of the court rolls with definitions and general concepts and describing court practice and procedure. it was influenced by his knowledge of roman legal concepts, such as res judicata, and by his own opinions, such as that the law should go from precedent to precedent. he also argued that the will and intent to injure was the essence of murder, so that neither an infant nor a madman should be held liable for such and that degrees of punishment should vary with the level of moral guilt in a killing. he thought the deodand to be unreasonable. bracton defines the requirements of a valid and effective gift as: "it must be complete and absolute, free and uncoerced, extorted neither by fear nor through force. let money or service play no part, lest it fall into the category of purchase and sale, for if money is involved there will then be a sale, and if service, the remuneration for it. if a gift is to be valid the donor must be of full age, for if a minor makes a gift it will be ineffective since (if he so wishes) it shall be returned to him in its entirety when he reaches full age. also let the donor hold in his own name and not another's, otherwise his gift may be revoked. and let him, at the least, be of sound mind and good memory, though an invalid, ill and on his death bed, for a gift make under such conditions will be good if all the other [requirements] of a valid gift are met. for no one, provided he is of good memory, ought to be kept from the administration or disposition of his own property when affected by infirmity, since it is only then that he must make provision for his family, his household and relations, given stipends and settle his bequests; otherwise such persons might suffer damage without fault. but since charters are sometimes fraudulently drawn and gifts falsely taken to be made when they are not, recourse must therefore be had to the country and the neighborhood so that the truth may be declared." in bracton's view, a villein could buy his own freedom and the child of a mixed marriage was free unless he was born in the tenement of his villein parent. - judicial procedure - the royal court split up into several courts with different specialties and became more like departments of state than offices of the king's household. the justices were career civil servants knowledgeable in the civil and canon law. the court of the king's bench (a marble slab in westminster upon which the throne was placed) traveled with the king and heard criminal cases and pleas of the crown. any use of force, however trivial, was interpreted as breach of the royal peace and could be brought before the king's bench. its records were the coram rege rolls. the title of the chief justiciar of england changed to the chief justice of england. the court of common pleas heard civil cases brought by one subject against another. pursuant to the magna carta, it sat only at one place, the great hall in westminster. it had concurrent jurisdiction with the king's bench over trespass cases. its records were the de banco rolls. the court of the exchequer with its subsidiary department of the treasury was in almost permanent session at westminster, collecting the crown's revenue and enforcing the crown's rights. appeals from these courts could be made to the king and/or his small council, which was the curia regis and could hear any plea of the land. in , the justiciar as the principal royal executive officers and chief presiding officer over the curia regis ended. in , a chief justiciar was appointed the hold pleas before the king. henceforth, a justiciar was a royal officer who dealt only with judicial work. about the same time the presiding justice of the court of common pleas also came to be styled justiciar or chief justice. justices were no longer statesmen or politicians, but simply men learned in the law. membership in or attendance at the great council or parliament no longer rested upon feudal tenure, but upon a writ of summons which was, to a degree, dependent on the royal will. crown pleas included issues of the king's property, fines due to him, murder (a body found with no witnesses to a killing), homicide (a killing for which there were witnesses), rape, wounding, mayhem, consorting, larceny, robbery, burglary, arson, poaching, unjust imprisonment, selling cloth by nonstandard widths, selling wine by nonstandard weights. crown causes were pled by the king's serjeants or servants at law, who were not clerics. apprentices at law learned pleading from them. between the proprietary action and the possessory assizes there is growing use in the king's courts of writs of entry, by which a tenant may be ordered to give up land, e.g. by a recent flaw in a tenant's title, for a term which has expired, by a widow for her late husband's land, or by an heir who has become of full age from his guardian. for instance: " ...command tertius that ... he render to claimant, who is of full age, as it is said, ten acres ...which he claims to be his right and inheritance and into which the said tertius has no entry save by secundus, to whom primus demised [gaged] them, who had only the wardship thereof while the aforesaid claimant was under age, as he says...". but most litigation about land is still through the writ of right for proprietary issues and the assizes of novel disseisin and mort d'ancestor for possessory issues. royal itinerant justices traveled to the counties every seven years. there, they gave interrogatories to local assizes of twelve men to determine what had happened there since the last eyre. all boroughs had to send twelve burgesses who were to indict any burgesses suspected of breaking the royal law. every crime, every invasion of royal rights, and every neglect of police duties was to be presented and tried. suspects were held in gaol until their cases could be heard and gaol breaks were common. punishment after trial was prison for serious crimes, expulsion from the realm for less serious crimes, and pledges for good behavior for lesser crimes. the visitation of these justices was anticipated with trepidation. in , the residents of cornwall hid in the woods rather than face the itinerant justices. royal coroners held inquests on all sudden deaths to determine whether they were accidental or not. if not, royal justices held trial. they also had duties in treasure trove and shipwreck cases. justices of assize, justices of the peace, and itinerant justices operated at the county level. the traditional county courts had lost much jurisdiction to the royal courts and were now limited to personal actions in causes involving usually no more than s. there were pleas of trespass and debt, unjust seizure and detention of beasts, rent collection, claims of fugitive villeins and their goods, nuisances, and encroachments. the sheriff still constitutes and conducts the court. the county court met every three or four weeks, usually in the sheriff's castle located in the chief borough of the county, but some met in the open air. twice a year the sheriff visited each hundred in the county to hold a turn [court for small offenses, such as encroachment of public land, brewing and baking contrary to government regulations, and use of dishonest weights and measures.]. everyone who held freehold land in the hundred except the greater magnates had to attend or be fined for absence. the sheriff annually viewed frankpledge, in which every layman without land that could be forfeited for felony, including villeins, were checked for being in a tithing, a group of neighbors responsible for each other's good conduct. this applied to every boy who had reached the age of twelve. he had to swear on the bible "i will be a lawful man and bear loyalty to our lord the king and his heirs, and i will be justiciable to my chief tithing man, so help me god and the saints." each tithing man paid a penny to the sheriff. the hundred court decided cases of theft, viewing of boundaries of land, claims for tenurial services, claims for homage, relief, and for wardship; enfeoffments made, battery and brawls not amounting to felony, wounding and maiming of beasts, collection of debts, trespass, detinue [detention of personal property which originally was rightfully acquired] and covenant, which now requires a sealed writing; defamation, and inquiries and presentments arising from the assizes of bread and ale and measures. a paid bailiff had responsibility for the hundred court, which met every three weeks. still in existence is the old self-help law of hamsocne, the thief hand-habbende, the thief back-berend, the old summary procedure where the thief is caught in the act, aethelstan's laws, edward the confessor's laws, and kent's childwyte [fine for begetting a bastard on a lord's female bond slave]. under the name of "actio furti" [appeal of larceny] is the old process by which a thief can be pursued and goods vindicated. as before and for centuries later, deodands were forfeited to the king to appease god's wrath. these chattel which caused the death of a person were usually carts, cart teams, horses, boats, or millwheels. then they were forfeited to the community, which paid the king their worth. sometimes the justices named the charitable purpose for which the deodand was to be spent, such as the price of a boat to go to the repair of a bridge. five cases with short summaries are: case: "john croc was drowned from his horse and cart in the water of bickney. judgment: misadventure. the price of the horse and cart is s. d. deodand." case: "willam ruffus was crushed to death by a certain trunk. the price of the trunk is d., for which the sheriff is to answer. d. deodand." case: "william le hauck killed edric le poter and fled, so he is to be exacted and outlawed. he was in the tithing of reynold horloc in clandon of the abbot of chertsey (west clandon), so it is in mercy. his chattels were s., for which the bailiff of the abbot of chertsey is to answer." case: "richard de bregsells, accused of larceny, comes and denies the whole and puts himself on the country for good or ill. the twelve jurors and four vills say that he is not guilty, so he is quit." case: william le wimpler and william vintner sold wine contrary to the statute, so they are in mercy. other cases dealt with issues of entry, e.g. whether land was conveyed or just rented; issues of whether a man was free, for which his lineage was examined; issues of to which lord a villein belonged; issues of nuisance such as making or destroying a bank, ditch, or hedge; diverting a watercourse or damming it to make a pool; obstructing a road, and issues of what grazing rights were conveyed in pasture land, waste, woods, or arable fields between harvest and sowing. grazing right disputes usually arose from the ambiguous language in the grant of land "with appurtenances". courts awarded specific relief as well as money damages. if a landlord broke his covenant to lease land for a term of years, the court restored possession to the lessee. if a lord did not perform the services due to his superior lord, the court ordered him to perform the services. the courts also ordered repair by a lessee. debts of country knights and freeholders were heard in the local courts; debts of merchants and burgesses were heard in the courts of the fairs and boroughs; debts due under wills and testaments were heard in the ecclesiastical courts. the ecclesiastical courts deemed marriage to legitimize bastard children whose parents married, so they inherited personal property and money of their parents. proof was by compurgation. church law required excommunication to be in writing with the reasons therefore, and a copy given to the excommunicant. a church judge was required to employ a notary or two men to write down all acts of the judge and to give a copy to the parties to protect against unjust judges. no cleric was allowed to pronounce or execute a sentence of death or to take part in judicial tests or ordeals. anyone knowingly accepting a stolen article was required to restore it to its owner. heretics were to be excommunicated. trial by combat is still available, although it is extremely rare for it to actually take place. the manor court imposed penalties on those who did not perform their services to the manor and the lord wrote down the customs of the manor for future use in other courts. by statute, no fines could be taken of any man for fair pleading in the circuit of justiciars, county, hundred, or manor courts. various statutes relaxed the requirements for attendance at court of those who were not involved in a case as long as there were enough to make the inquests fully. and "every freeman who owes suit to the county, tything, hundred, and wapentake, or to the court of his lord, may freely make his attorney attend for him." all above the rank of knight were exempted from attendance on the sheriff's turn, unless specifically summoned. prelates and barons were generally excepted from the county courts by the charters of their estates. charters of boroughs often excepted their representatives at the county court when there were no justices. some barons and knights paid the sheriff to be excused. the king often relieved the simple knights by special license. there was frequently a problem of not having enough knights to hold the assizes. henry iii excused the attendance at hundred courts of all but those who were bound to special service, or who were concerned in suits. trespass has become a writ of course in the common law. it still involves violence, but its element of breach of the peace extends to those breaches which do not amount to felony. it can include assault and battery, physical force to land, and physical force to chattels, e.g. assaulting and beating the plaintiff, breaking into his close, or carrying off his goods. one found guilty is fined and imprisoned. as in criminal matters, if a defendant does not appear at court, his body can be seized and imprisoned, and if he cannot be found, he may be outlawed. trespass to goods results in damages, rather than the return of the goods, for goods carried off from the plaintiff's possession and can be brought by bailees. in chancery, the court of the chancellor, if there is a case with no remedy specified in the law, that is similar to a situation for which there is a writ, then a new writ may be made for that case. (by this will later be expanded the action of trespass called "trespass on the case".) various cases from the manors of the abbey of bec in - are: . ragenilda of bec gives s. for having married without licence. pledge, william of pinner. the same ragenilda demands against roger loft and juliana his wife a certain messuage which belonged to robert le beck, and a jury of twelve lawful men is granted her in consideration of the said fine, and if she recovers seisin she will give in all s. and twelve jurors are elected, to wit, john of hulle, william maureward, robert hale walter but, walter sigar, william brihtwin, richard horseman, richard leofred, william john's son, hugh cross, richard pontfret and robert croyser, john bisuthe and gilbert bisuthe who are sworn. and they say that the said ragenilda has the greater right. therefore let her have seisin. . richard guest gives d. and if he recovers will give s. to have a jury of twelve lawful men as to whether he has the greater right in a certain headland at eastcot which ragenilda widow of william andrews holds, or the said ragenilda. pledges for the fine, john brook and richard of pinner. and the said ragenilda comes and says that she has no power to bring that land into judgment because she has no right in it save by reason of the wardship of the son and heir of her husband, who is under age. and richard is not able to deny this. therefore let him await [the heir's] full age. . walter hulle gives s. d. for licence to dwell on the land of the prior of harmondsworth so long as he shall live and as a condition finds pledges, to wit, william slipper, john bisuthe, gilbert bisuthe, hugh tree, william john's son, john hulle, who undertake that the said walter shall do to the lord all the services and customs which he would do if he dwelt on the lord's land and that his heriot shall be secured to the lord in case he dies there [i.e. at harmondsworth]. . geoffrey sweyn demands the moiety of one virgate of land which john crisp and alina hele hold, and he gives s. to have a jury, and if he recovers will give s. and the said jurors come and say upon their oath that the said geoffrey has no right in the said land. therefore let the said tenants go thence without day and let the said geoffrey pay s. pledges, hugh bussel and godfrey francis. . juliana saer's daughter demands as her right the moiety of one messuage with a croft, which messuage william snell and goda his wife, sister of the said juliana hold. and they have made accord by leave [of the court] to the effect that the said william and goda give to the said juliana a barn and the curtilage nearest the green and two selions [a ridge of land between two furrows] in the western part of the said croft [a small enclosed field]. and the said william put himself in mercy. fine, d. . hugh of stanbridge complains of gilbert vicar's son and william of stanbridge that the wife of the said gilbert who is of [gilbert's] mainpast and the said william unjustly etc. beat and unlawfully struck him and dragged him by his hair out of his own proper house, to his damage s. and to his dishonor s., and [of this] he produces suit. and gilbert and william come and defend all of it fully. therefore let each of them go to his law six-handed. afterwards they make accord to this effect that in case the said hugh shall hereafter in any manner offend against [gilbert and william] and thereof shall be convicted he will give the lord s. d. by way of penalty and will make amends to [gilbert and william] according to the judgment of six lawful men, and the others on their part will do the like by him. and hugh put himself in mercy. fine, s. pledges, john tailor and walter brother. . breakers of the assize [of beer:] william idle (fined d.), maud carter's widow ( d.), walter carter. . john witriche in mercy for carrying off thorns. fine, d. . robert dochi in mercy (fine, d.) for divers trespasses. pledges, gilbert priest's son, ralph winbold and walter green. . ailwin crisp in mercy for his cow caught in the lord's pasture when ward had been made. fine, d. . john bernard in mercy for his beasts caught by night in the lord's meadow. fine, s. . richard love gives d. to have a jury of twelve touching a rod of land which robert of brockhole and juliana his wife hold. this action is respited to the next court [when the jurors are to come] without further delay. afterwards the jurors come and say upon their oath that the said richard has the greater right in the said land. therefore let him have seisin. . william blackbeard in mercy for not coming with his law as he was bound to do. pledges, geoffrey of wick and geoffrey payn. fine, d. . it was presented that stephen shepherd by night struck his sister with a knife and grievously wounded her. therefore let him be committed to prison. afterwards he made fine with s. pledge, geoffrey of wick. . it was presented that robert carter's son by night invaded the house of peter burgess and in felony threw stones at his door so that the said peter raised the hue. therefore let the said robert be committed to prison. afterwards he made fine with s. . nicholas drye, henry le notte (fine, d.) and thomas hogue (fine, d.) were convicted for that they by night invaded the house of sir thomas the chaplain and forcibly expelled thence a man and woman who had been taken in there as guests. therefore they are in mercy. pledges of the said thomas, richard of lortemere and jordan of paris. pledges of the said henry, richard pen... and richard butry. . adam moses gives half a sextary of wine to have an inquest as to whether henry ayulf accused him of the crime of larceny and used opprobrious and contumelious words of him. afterwards they made accord and henry finds security for an amercement. fine, d. . isabella sywards in mercy for having sold to richard bodenham land that she could not warrant him. . all the ploughmen of great ogbourne are convicted by the oath of twelve men...because by reason of their default [the land] of the lord was ill ploughed whereby the lord is damaged to the amount of s.... and walter reaper is in mercy for concealing [i.e. not giving information as to] the said bad ploughing. afterwards he made fine with the lord with mark. . from ralph joce s. d. for his son, because he [the son] unlawfully carried off grain from the lord's court. pledge, geoffrey joce. . from henry pink d. for a trespass by waylaying. . from eve corner d. for a trespass of her pigs. . from ralph scales d. for timber carried off. . from william cooper d. for ploughing his own land with the lord's plough without licence. . from hugh newman d. for trespass in the wood. . from richard penant d. for the same. . from helen widow of little ogbourne d. for the same. . from nicholas siward d. for a false complaint against william pafey. . from william pafey d. for fighting with the said nicholas. . from the widow of ralph shepherd d. for a trespass in pencombe. . richard blund gives a half-mark and if he recovers will give two marks and a half to have a jury of the whole court, to inquire whether he has the greater right in a virgate of land which hugh frith holds in wardship with cristiana daughter of simon white, or the said cristiana. pledges for the fine, richard dene, william hulle, john of senholt, hugh smith, and william ketelburn. and the whole court say upon their oath that the said richard has greater right in the said land than anyone else. therefore let him recover his seisin. ....miller gives d. [the latin translates as s.] for a trespass against the assize of beer and because the lord's grain has been ill kept at the mill. pledges, john orped and joce serjeant. . noah gives s. in the same way for an inquest as to one acre. afterwards they submit themselves to arbitrators, who adjudge that the said robert shall pay s. to the said roger and s. to the said gilbert and s. to the said noah, and that he will do so [robert] finds pledges. . ralph bar in mercy for having beaten one of the lord's men. pledges, herbert rede and ralph brunild. . for the common fine of the township, a half-mark. . john boneffiant found pledges, to wit, william smith and william of bledlow, that he will not eloign himself from the lord's land and that he will be prompt to obey the lord's summons. - - - chapter - - - - the times: - - king edward i was respected by the people for his good government, practical wisdom, and genuine concern for justice for everyone. he loved his people and wanted them to love him. he came to the throne with twenty years experience governing lesser lands on the continent which were given to him by his father henry iii. he spoke latin, english, and french. he gained a reputation as a lawgiver and as a peacemaker in disputes on the continent. his reputation was so high and agreement on him as the next king so strong that england was peaceful in the almost two years that it took him to arrive there from continental business. he was truthful, law-abiding, and kept his word. he had close and solid family relationships, especially with his father and with his wife eleanor, to whom he was faithful. he was loyal to his close circle of good friends. he valued honor and adhered reasonably well to the terms of the treaties he made. he was generous in carrying out the royal custom of subsidizing the feeding of paupers. he visited the sick. he was frugal and dressed in plain, ordinary clothes rather than extravagant or ostentatious ones. he disliked ceremony and display. at his accession, there was a firm foundation of a national law administered by a centralized judicial system, a centralized executive, and an organized system of local government in close touch with both the judicial and the executive system. to gain knowledge of his nation, he sent royal commissioners into every county to ask about any encroachments on the king's rights and about misdeeds by any of the king's officials: sheriffs, bailiffs, or coroners. the results were compiled as the "hundred rolls". they were the basis of reforms which improved justice at the local as well as the national level. they also rationalized the array of jurisdictions that had grown up with feudal government. statutes were passed by a parliament of two houses, that of peers (lords) and that of an elected [rather than appointed] commons, and the final form of the constitution was fixed. wardships of children and widows were sought because they were very profitable. a guardian could get one tenth of the income of the property during the wardship and a substantial marriage amount when the ward married. parents often made contracts to marry for their young children. this avoided a forced marriage by a ward should the parents die. most earldoms and many baronages came into the royal house by escheat or marriage. the royal house employed many people. the barons developed a class consciousness of aristocracy and became leaders of society. many men, no matter of whom they held land, sought knighthood. the king granted knighthood by placing his sword on the head of able-bodied and moral candidates who swore an oath of loyalty to the king and to defend "all ladies, gentlewomen, widows and orphans" and to "shun no adventure of your person in any war wherein you should happen to be". a code of knightly chivalry became recognized, such as telling the truth and setting wrongs right. about half of the knights were literate. in , the king issued a writ ordering all freeholders who held land of the value of at least s. to receive knighthood at the king's hands. at the royal house and other great houses gentlemanly jousting competitions, with well-refined and specific rules, took the place of violent tournaments with general rules. edward forbade tournaments at which there was danger of a "melee". at these knights competed for the affection of ladies by jousting with each other while the ladies watched. courtly romances were common. if a man convinced a lady to marry him, the marriage ceremony took place in church, with feasting and dancing afterwards. romantic stories were at the height of their popularity. a usual theme was the lonely quest of a knight engaged in adventures which would impress his lady. riddles include: . i will make you a cross, and a thing will not touch you, and you will not be able to leave the house without breaking that cross. answer: stand before a post in your house, with your arms extended. . what you do not know, and i do not know, and no one can know after i have told you. answer: i will take a straw from the floor of the room, measure its inches, tell you the length, and break the straw. . a pear tree bears all the fruit a pear tree can bear and did not bear pears. answer: it bore only one pear. the dress of the higher classes was very changeable and subject to fashion as well as function. ladies no longer braided their hair in long tails, but rolled it up in a net under a veil, often topped with an elaborate and fanciful headdress. they wore non- functional long trains on their tunics and dainty shoes. men wore a long gown, sometimes clasped around the waist. overtunics were often lined or trimmed with native fur such as squirrel. people often wore solid red, blue, or green clothes. only monks and friars wore brown. the introduction of buttons and buttonholes to replace pins and laces made clothing warmer, and it could be made tighter. after edward i established the standard inch as three continuous dried barleycorns, shoes came in standard sizes and with a right one different from a left one. the spinning wheel came into existence to replace the handheld spindle. now one hand could be used to form the thread while the other hand turned a large upright wheel that caused the thread to wind around the spindle, which did not have to be held by hand. this resulted in an uninterrupted spinning motion which was not interrupted by alternately forming the thread and winding it on the spindle. lords surrounded themselves with people of the next lower rank, usually from nearby families, and had large households. for instance, the king had a circle of noblemen and ladies about him. a peer or great prelate had a household of about - people, among which were his inner circle, companions, administrators, secretaries, bodyguards and armed escort, chaplain, singing priests and choirboys, and servants. all officers of the household were gentlemen. the secretary was usually a clerk, who was literate because he had taken minor clerical orders. since the feudal obligation of the tenants was disappearing, a lord sometimes hired retainers to supplement his escort of fighting men. they proudly wore his livery of cloth or hat, which was in the nature of a uniform or badge of service. a nobleman and his lady had a circle of knights and gentlemen and their ladies. a knight had a circle of gentlemen and their ladies. the great barons lived in houses built within the walls of their castles. lesser barons lived in semi-fortified manors, many of which had been licensed to be embattled or crenelated. their halls were two stories high, and usually built on the first rather than on the second floor. windows came down almost to the floor. the hall had a raised floor at one end where the lord and lady and a few others sat at a high table. the hearth was in the middle of the room or on a wall. sometimes a cat was used to open and shut the louvers of the smoke outlet in the roof. the lord's bedroom was next to the hall on the second floor and could have windows into the hall and a spiral staircase connecting the two rooms. there was a chapel, in which the lord attended mass every morning. the many knights usually lived in unfortified houses with two rooms. in the great houses, there were more wall hangings, and ornaments for the tables. the tables were lit with candles or torches made of wax. plates were gold and silver. the lord, his lady, and their family and guests sat at the head table, which was raised on a dais. on this high table was a large and elaborate salt cellar. one's place in relationship to the salt cellar indicated one's status: above or below the salt. also, those of higher status at the table ate a superior bread. the almoner [alms giver] said grace. gentlemen poured the lord's drink [cupbearer], served his meat [carver], and supervised the serving of the food [sewer]. a yeoman ewery washed the hands of the lord and his guests and supplied the napkins, ewers [pitchers], and basins. a yeoman cellarer or butler served the wine and beer. the yeoman of the pantry served the bread, salt, and cutlery. the steward presided over the table of household officers of gentle birth. the marshall of the hall, clerk of the kitchen, or other yeomen officers supervised other tables. salt and spices were available at all tables. most people ate with their fingers, although there were knives and some spoons. drinking vessels were usually metal, horn, or wood. a marshall and ushers kept order. minstrels played musical instruments or recited histories of noble deeds or amusing anecdotes. reading aloud was a favorite pastime. the almoner collected the leftovers to distribute to the poor. in lesser houses people ate off trenchers [a four day old slab of coarse bread or a piece of wood with the middle scooped out like a bowl], or plates of wood or pewter [made from tin, copper, and lead]. they often shared plates and drinking vessels at the table. queen eleanor, a cultivated, intelligent, and educated lady from the continent, fostered culture and rewarded individual literary efforts, such as translations from latin, with grants of her own money. she patronized oxford and cambridge universities and left bequests to poor scholars there. she herself had read aristotle and commentaries thereon, and she especially patronized literature which would give cross-cultural perspectives on subjects. she was kind and thoughtful towards those about her and was also sympathetic to the afflicted and generous to the poor. she shared edward's career to a remarkable extent, even accompanying him on a crusade. she had an intimate knowledge of the people in edward's official circle and relied on the advice of two of them in managing her lands. she mediated disputes between earls and other nobility, as well as softened her husband's temper towards people. edward granted her many wardships and marriages and she arranged marriages with political advantages. she dealt with envoys coming to the court. her intellectual vitality and organized mentality allowed her to deal with arising situations well. edward held her in great esteem. she introduced to england the merino sheep, which, when bred with the english sheep, gave them a better quality of wool. she and edward often played games of chess and backgammon. farm efficiency was increased by the use of windmills in the fields to pump water and by allowing villeins their freedom and hiring them as laborers only when needed. customary service was virtually extinct. a man could earn d. for reaping, binding, and shocking into a pile, an acre of wheat. a strong man with a wife to do the binding could do this in a long harvest day. harvests were usually plentiful, with the exception of two periods of famine over the country due to weather conditions. then the price of wheat went way up and drove up the prices of all other goods correspondingly. the story of outlaw robin hood, who made a living by robbing, was passed around. this robin hood did not give to the poor. but generally, there was enough grain to store so that the population was no longer periodically devastated by famine. the population grew and all arable land in the nation came under the plough. the acre was standardized. about , the price of an ox was s., a heifer or cow s., a hide s. d., a cart horse or pounds. farm women went to nearby towns to sell eggs and dairy products, usually to town women. although manors needed the ploughmen, the carters and drivers, the herdsmen, and the dairymaid on a full-time basis, other tenants spent increasing time in crafts and became village carpenters, smiths, weavers or millers' assistants. trade and the towns grew. smiths used coal in their furnaces. money rents often replaced service due to a lord, such as fish silver, malt silver, or barley silver. the lord's rights are being limited to the rights declared on the extents [records showing service due from each tenant] and the rolls of the manor. sometimes land is granted to strangers because none of the kindred of the deceased will take it. often a manor court limited a fee in land to certain issue instead of being inheritable by all heirs. surveyors' poles marked boundaries declared by court in boundary disputes. this resulted in survey maps showing villages and cow pastures. the revival of trade and the appearance of a money economy was undermining the long-established relationship between the lord of the manor and his villeins. as a result, money payments were supplementing or replacing payments in service and produce as in martham, where thomas knight held twelve acres in villeinage, paid d. for it and d. in special aids. "he shall do sixteen working days in august and for every day he shall have one repast - viz. bread and fish. he shall hoe ten days without the lord's food - price of a day / d. he shall cart to norwich six cartings or shall give d., and he shall have for every carting one leaf and one lagena - or gallon - of ale. also for ditching d. he shall make malt / seams of barley or shall give d. also he shall flail for twelve days or give d. he shall plough if he has his own plough, and for every ploughing he shall have three loaves and nine herrings ... for carting manure he shall give ." another example is this manor's holdings, when d. would buy food for a day: "extent of the manor of bernehorne, made on wednesday following the feast of st. gregory the pope, in the thirty-fifth year of the reign of king edward, in the presence of brother thomas, keeper of marley, john de la more, and adam de thruhlegh, clerks, on the oath of william de gocecoumbe, walter le parker, richard le knyst, richard the son of the latter, andrew of estone, stephen morsprich, thomas brembel, william of swynham, john pollard, roger le glide, john syward, and john de lillingewist, who say that there are all the following holdings:... john pollard holds a half acre in aldithewisse and owes d. at the four terms, and owes for it relief and heriot. john suthinton holds a house and acres of land and owes s. d. at easter and michaelmas. william of swynham holds one acre of meadow in the thicket of swynham and owes d. at the feast of michaelmas. ralph of leybourne holds a cottage and one acre of land in pinden and owes s. at easter and michaelmas, and attendance at the court in the manor every three weeks, also relief and heriot. richard knyst of swynham holds two acres and a half of land and owes yearly s. william of knelle holds two acres of land in aldithewisse and owes yearly s. roger le glede holds a cottage and three roods of land and owes s. d. easter and michaelmas. alexander hamound holds a little piece of land near aldewisse and owes one goose of the value of d. the sum of the whole rent of the free tenants, with the value of the goose, is s. d. they say, moreover, that john of cayworth holds a house and acres of land, and owes yearly s. at easter and michaelmas; and he owes a cock and two hens at christmas of the value of d. and he ought to harrow for two days at the lenten sowing with one man and his own horse and his own harrow, the value of the work being d.; and he is to receive from the lord on each day three meals, of the value of d., and then the lord will be at a loss of d. thus his harrowing is of no value to the service of the lord. and he ought to carry the manure of the lord for two days with one cart, with his own two oxen, the value of the work being d.; and he is to receive from the lord each day three meals at the value as above. and thus the service is worth d. clear. and he shall find one man for two days, for mowing the meadow of the lord, who can mow, by estimation, one acre and a half, the value of the mowing of an acre being d.: the sum is therefore d. and he is to receive each day three meals of the value given above. and thus that mowing is worth d. clear. and he ought to gather and carry that same hay which he has cut, the price of the work being d. and he shall have from the lord two meals for one man, of the value of / d. thus the work will be worth / d. clear. and he ought to carry the hay of the lord for one day with a cart and three animals of his own, the price of the work being d. and he shall have from the lord three meals of the value of / d. and thus the work is worth / d. clear. and he ought to carry in autumn beans or oats for two days with a cart and three animals of his own, the value of the work being d. and he shall receive from the lord each day three meals of the value given above. and thus the work is worth d. clear. and he ought to carry wood from the woods of the lord as far as the manor, for two days in summer, with a cart and three animals of his own, the value of the work being d. and he shall receive from the lord each day three meals of the price given above. and thus the work is worth d. clear. and he ought to find one man for two days to cut heath, the value of the work being d., and he shall have three meals each day of the value given above: and thus the lord will lose, if he receives the service, d. thus that mowing is worth nothing to the service of the lord. and he ought to carry the heath which he has cut, the value of the work being d. and he shall receive from the lord three meals at the price of / d. and thus the work will be worth / d. clear. and he ought to carry to battle, twice in the summer season, each time half a load of grain, the value of the service being d. and he shall receive in the manor each time one meal of the value of d. and thus the work is worth d. clear. the totals of the rents, with the value of the hens, is s. d. the total of the value of the works is s. / d., being owed from the said john yearly. william of cayworth holds a house and acres of land and owes at easter and michaelmas s. rent. and he shall do all customs just as the aforesaid john of cayworth. william atte grene holds a house and acres of land and owes in all things the same as the said john. alan atte felde holds a house and acres of land (for which the sergeant pays to the court of bixley s.), and he owes at easter and michaelmas s., attendance at the manor court, relief, and heriot. john lyllingwyst holds a house and four acres of land and owes at the two terms s., attendance at the manor court, relief, and heriot. the same john holds one acre of land in the fields of hoo and owes at the two periods s., attendance, relief, and heriot. reginald atte denne holds a house and acres of land and owes at the said periods d., attendance, relief, and heriot. robert of northehou holds three acres of land at saltcote and owes at the said periods attendance, relief, and heriot. total of the rents of the villeins, with the value of the hens, s. total of all the works of these villeins, s. / d. and it is to be noted that none of the above-mentioned villeins can give their daughters in marriage, nor cause their sons to be tonsured, nor can they cut down timber growing on the lands they hold, without licence of the bailiff or sergeant of the lord, and then for building purposes and not otherwise. and after the death of any one of the aforesaid villeins, the lord shall have as a heriot his best animal, if he had any; if, however, he have no living beast, the lord shall have no heriot, as they say. the sons or daughters of the aforesaid villeins shall give, for entrance into the holding after the death of their predecessors, as much as they give of rent per year. sylvester, the priest, holds one acre of meadow adjacent to his house and owes yearly s. total of the rent of tenants for life, s. petronilla atte holme holds a cottage and a piece of land and owes at easter and michaelmas - ; also, attendance, relief, and heriot. walter herying holds a cottage and a piece of land and owes at easter and michaelmas d., attendance, relief, and heriot. isabella mariner holds a cottage and owes at the feast of st. michael d., attendance, relief, and heriot. jordan atte melle holds a cottage and / acres of land and owes at easter and michaelmas s., attendance, relief, and heriot. william of batelesmere holds one acre of land with a cottage and owes at the feast of st. michael d., and one cock and one hen at christmas of the value of d., attendance, relief, and heriot. john le man holds half an acre of land with a cottage and owes at the feast of st. michael s., attendance, relief, and heriot. hohn werthe holds one rood of land with a cottage and owes at the said term d., attendance, relief, and heriot. geoffrey caumbreis holds half an acre and a cottage and owes at the said term d., attendance, relief, and heriot. william hassok holds one rood of land and a cottage and owes at the said term d., attendance, relief, and heriot. the same man holds / acres of land and owes yearly at the feast of st. michael s. for all. roger doget holds half an acre of land and a cottage, which were those of r. the miller, and owes at the feast of st. michael d., attendance, relief, and heriot. thomas le brod holds one acre and a cottage and owes at the said term s., attendance, relief, and heriot. agnes of cayworth holds half an acre and a cottage and owes at the said term d., attendance, relief, and heriot. total of the rents of the said cottagers, with the value of the hens, s. d. and it is to be noted that all the said cottagers shall do as regards giving their daughters in marriage, having their sons tonsured, cutting down timber, paying heriot, and giving fines for entrance, just as john of cayworth and the rest of the villeins above mentioned." the above fines and penalties, with heriots and reliefs, are worth s. yearly. often one village was divided up among two or more manors, so different manorial customs made living conditions different among the villagers. villages usually had carpenters, smiths, saddlers, thatchers, carters, fullers, dyers, soapmakers, tanners, needlers, and brassworkers. each villein had his own garden in which to grow fruit and vegetables next to his house, a pig (which fattened more quickly than other animals), strips in the common field, and sometimes an assart [a few acres of his own to cultivate as he pleased on originally rough uncultivated waste land beyond the common fields and the enclosed common pastures and meadows]. most villeins did not venture beyond their village except for about ten miles to a local shrine or great fair a couple times a year. at the fair might be fish, honey, spices, salt, garlic, oil, furs, silks, canvas, soap, pans, pots, grindstones, coal, nails, tar, iron, shovels, brushes, pails, horses, and packsaddles. early apothecaries might sell potions there. men and women looking for other employment might attend to indicate their availability. under edward i, villages were required to mount watches to protect life and property and were called upon to provide one man for the army and to pay his wages. people told time by counting the number of rings of the church bell, which rang on the hour. every sunday, the villagers went to church, which was typically the most elaborate and centrally located building in the village. the parishioners elected churchwardens, who might be women. this religion brought comfort and hope of going to heaven after judgment by god at death if sin was avoided. on festival days, bible stories, legends, and lives of saints were read or performed as miracle dramas. they learned to avoid the devil, who was influential in lonely places like forests and high mountains. at death, the corpse was washed, shrouded, and put into a rectangular coffin with a cross on its lid. priests sang prayers amid burning incense for the deliverance of the soul to god while interring the coffin into the ground. men who did not make a will risked the danger of an intestate and unconfessed death. the personal property of a man dying intestate now went to the church as a trust for the dead man's imperiled soul instead of to the man's lord. unqualified persons entered holy orders thereby obtaining "benefit of clergy", and then returned to secular employments retaining this protection. a villein could be forever set free from servitude by his lord as in this example: "to all the faithful of christ to whom the present writing shall come, richard, by the divine permission, abbot of peterborough and of the convent of the same place, eternal greeting in the lord: let all know that we have manumitted and liberated from all yoke of servitude william, the son of richard of wythington, whom previously we have held as our born bondman, with his whole progeny and all his chattels, so that neither we nor our successors shall be able to require or exact any right or claim in the said william, his progeny, or his chattels. but the same william, with his whole progeny and all his chattels, shall remain free and quit and without disturbance, exaction, or any claim on the part of us or our successors by reason of any servitude forever. we will, moreover, and concede that he and his heirs shall hold the messuages, land, rents, and meadows in wythington which his ancestors held from us and our predecessors, by giving and performing the fine which is called merchet for giving his daughter in marriage, and tallage from year to year according to our will, - that he shall have and hold these for the future from us and our successors freely, quietly, peacefully, and hereditarily, by paying to us and our successors yearly s. sterling, at the four terms of the year, namely: at st. john the baptist's day s., at michaelmas s., at christmas s., and at easter s., for all service, exaction, custom, and secular demand; saving to us, nevertheless, attendance at our court of castre every three weeks, wardship, and relief, and outside service of our lord the king, when they shall happen. and if it shall happen that the said william or his heirs shall die at any time without an heir, the said messuage, land rents, and meadows with their appurtenances shall return fully and completely to us and our successors. nor will it be allowed to the said william or his heirs to give, sell, alienate, mortgage, or encumber in any way, the said messuage, land, rents, and meadows, or any part of them, by which the said messuage, land, rents, and meadows should not return to us and our successors in the form declared above. and if this should occur later, their deed shall be declared null, and what is thus alienated shall come to us and our successors... given at borough, for the love of lord robert of good memory, once abbot, our predecessor and maternal uncle of the said william, and at the instance of the good man, brother hugh of mutton, relative of the said abbot robert, a.d. , on the eve of pentecost." villeins who were released from the manorial organization by commutation of their service for a money payment took the name of their craft as part of their name, such as, for the manufacture of textiles, weaver, draper, comber, fuller, napper, cissor, tailor, textor; for metalwork, faber, ironmonger; for leatherwork, tanner; for woodwork, building and carpentry, carpenter, cooper, mason, pictor; for food production, baker, pistor. iron, tin, lead, salt, and even coal were providing increasing numbers of people with a livelihood. many new boroughs were founded as grants of market rights by the king grew in number. these grants implied the advantage of the king's protection. in fact, one flooded town was replaced with a new town planned with square blocks. it was the charter which distinguished the borough community from the other communities existing in the country. it invested each borough with a distinct character. the privileges which the charter conferred were different in different places. it might give trading privileges: freedom from toll, a guild merchant, a right to hold a fair. it might give jurisdictional privileges: a right to hold court with greater or less franchises. it might give governmental privileges: freedom from the burden of attending the hundred and county courts, the return of writs, which meant the right to exclude the royal officials, the right to take the profits of the borough, paying for them a fixed sum to the crown or other lord of the borough, the right to elect their own officials rather than them being appointed by the king or a lord, and the right to provide for the government of the borough. it might give tenurial privileges: the power to make a will of lands, or freedom from the right of a lord to control his tenants' marriages. it might give procedural privileges: trial by combat is excluded, and trial by compurgation is secured and regulated. these medieval borough charters are very varied, and represent all stages of development and all grades of franchise. boroughs bought increasing rights and freedoms from their lord, who was usually the king. in the larger towns, where cathedrals and public building were built, there arose a system for teaching these technical skills and elaborate handicraft, wood, metal, stained glass, and stone work. a boy from the town would be bound over in apprenticeship to a particular craftsman, who supplied him with board and clothing. the craftsman might also employ men for just a day. these journeymen were not part of the craftsman's household as was the apprentice. after a few years of an apprenticeship, one became a journeyman and perfected his knowledge of his craft and its standards by seeing different methods and results in various towns. he was admitted as a master of his trade to a guild upon presenting an article of his work worthy of that guild's standard of workmanship: his "masterpiece". women, usually wives of brethren only, could be admitted. the tailors' guild and the skinners' guild are extant now. when guilds performed morality plays based on bible stories at town festivals, there was usually a tie between the bible story and the guild's craft. for instance, the story of the loaves and fishes would be performed by the bakers' or fishmongers' guild. the theme of the morality play was the fight of the seven cardinal virtues against the seven deadly sins for the human soul, a life- long battle. the number seven was thought to have sacred power; there were seven sacraments, seven churches in the biblical apocalypse, seven liberal arts and seven devilish arts. the seven sacraments were: baptism, confirmation, lord's supper, penance, orders, matrimony, and extreme unction. a borough was run by a mayor elected usually for life. by being members of a guild, merchant-traders and craftsmen acquired the legal status of burgesses and had the freedom of the borough. each guild occupied a certain ward of the town headed by an alderman. the town aldermen, who were unpaid, made up the town council, which advised the mayor. the mayor of london received pounds for hospitality, but in small towns, s. sufficed. often there were town police, bailiffs, beadles [messengers], a town crier, and a town clerk. london offices included recorder, prosecutor, common sergeant, and attorneys. in the center of town were the fine stone houses, a guildhall with a belfry tower, and the marketplace - a square or broad street, where the town crier made public announcements with bell or horn. here too was the ducking stool for scandalmongers and the stocks which held offenders by their legs and perhaps their hands to be scorned and pelted by bystanders with, for instance, rotten fruit and filth. no longer were towns dominated by the local landholders. in london there were royal princes, great earls, barons, knights, and female representatives of the peerage (counted in ). there was a wall with four towers surrounding the white tower, and this castle was known as the tower of london. another wall and a moat were built around it and it has reached its final form. hovels, shops, and waste patches alternated with high walls and imposing gateways protecting mansions. the mansions had orchards, gardens, stables, brewhouses, bakeries, guardrooms, and chapels. london streets were paved with cobbles and sand. each citizen was to keep the street in front of his tenement in good repair. later, each alderman appointed four reputable men to repair and clean the streets for wages. the repair of bishopsgate was the responsibility of the bishop because he received one stick from every cart of firewood passing through it. rules as to tiled roofs were enforced. a ordinance required all taverns to close at curfew, an hour that fluctuated. prostitutes were expelled from the city because the street with their bawdy houses had become very noisy. women huckster-retailers, nurses, servants, and loose women were limited to wearing hoods furred with lambskin or rabbitskin and forbidden to wear hoods furred with vair or miniver [grey or white squirrel] in the guise of good ladies. an infirmary for the blind was founded by a mercer, who became its first prior. the london mayoral elections were hotly fought over until in , when the aldermen began to act with the aid of an elected council in each of the twenty-four wards, which decentralized the government of the city. each ward chose certain of its inhabitants to be councilors to the aldermen. this council was to be consulted by him and its advice to be followed. in , the aldermen for the first time included a fishmonger. the fishmongers were the only guild at this time, besides the weavers, which had acquired independent jurisdiction by the transfer of control of their weekly hallmote from a public official to themselves. craftsmen began to take other public offices too. by the reign of edward ii, all the citizens were obliged to be enrolled among the trade guilds. a great quarrel between the weaver's guild and the magistracy began the control of the city by the craft guilds or city companies. admission to freedom of the city [citizenship] was controlled by the citizens, who decided that no man of english birth, and especially no english merchant, who followed any specific mistery [french word for a calling or trade] or craft, was to be admitted to the freedom of the city except on the security of six reputable men of that mistery or craft. no longer could one simply purchase citizenship. apprentices had to finish their terms before such admission, and often could not afford the citizenship fee imposed on them. only freemen could sell wares in the city, a custom of at least two hundred years. as economic activity in london became more complex and on a larger scale in the s, some craftsmen were brought under the control of other crafts or merchants. the bakers fell under the control of the wholesale grain dealers; the weavers became pieceworkers for rich cloth merchants; the blademakers and shearers were employed by cutlers; coppersmiths were controlled by girdlers; fullers were controlled by entrepreneurial dyers; and the painters, joiners, and lorimers were controlled by the saddlers. guilds moved their meeting places from churches, which were now too small, to guild halls. the controlling officers of the large guilds met at the guildhall, which became the seat of mayoral authority. london streets in existence by this time include cordwainer, silver, cannon (candlewick), and roper. lanes included ironmonger, soper, spurrier, lad (ladles), distaff, needles, mede, limeburner, and hosier. fighting among groups was common in london. there was a street fight on a large scale in between the saddlers and a coalition of joiners, painters, and lorimers (makers of metal work of saddles). much blood was shed in the street battle between the skinners and the fishmongers in . there was a city ordinance that no one except royal attendants, baronial valets, and city officials were to go about armed. disputes among neighbors that were brought to court included the use and upkeep of party walls, blocked and overflowing gutters, cesspits too close to a neighbor's property, noisy tenants, loss of light, and dangerous or overhanging structures. in , a goldsmith was chief assay-master of the king's mint and keeper of the exchange at london. the king gave the goldsmiths' company the right of assay [determination of the quantity of gold or silver in an object] and required that no vessels of gold or silver should leave the maker's hands until they had been tested by the wardens and stamped appropriately. in , goldsmith william farrington bought the soke of the ward containing the goldsmiths' shops. it remained in his family for years. a patent of empowered the guild to elect a properly qualified governing body to superintend its affairs, and reform subjects of just complaint. it also prescribed, as a safeguard against a prevailing fraud and abuse, that all members of the trade should have their standing in cheapside or in the king's exchange, and that no gold or silver should be manufactured for export, except that which had been bought at the exchange or of the trade openly. some prices in london were: large wooden bedstead s., a small bedstead s., a large chest for household items s., feather beds - s., a table s., a chair - d., cloth gown lined with fur - s., plain coats and overcoats - s., caps - d., a pair of pen- cases with inkhorn d., a skin of parchment d., sheets of paper d, a carcass of beef s., a pig s., a swan s., and a pheasant s. there was a problem with malefactors committing offenses in london and avoiding its jurisdiction by escaping to southwark across the thames. so southwark was given a royal charter which put it under the jurisdiction of london for peace and order matters and allowed london to appoint its tax collector. london forbade games being played because they had replaced practice in archery, which was necessary for defense. a royal inquiry into the state of the currency indicated much falsification and coin-clipping by the jews and others. about jews and many englishmen were found guilty and hanged. the rest of the jews, about , , were expelled in . this was popular with the public because of the abuses of usury. there had been outbreaks of violence directed at the jews since about . the king used italian bankers instead because he thought them more equitable in their dealings. the lepers were driven out of london in . exports and imports were no longer a tiny margin in an economy just above the subsistence level. exports were primarily raw wool and cloth, but also grain, butter, eggs, herring, hides, leather goods such as bottles and boots, embroideries, metalware, horseshoes, daggers, tin, coal, and lead. imported were wine, silk, timber, furs, rubies, emeralds, fruits, raisins, currents, pepper, ginger, cloves, rice, cordovan leather, pitch, hemp, spars, fine iron, short rods of steel, bow-staves of yew, tar, oil, salt, cotton (for candlewicks), and alum (makes dyes hold). ships which transported them had one or two masts upon which sails could be furled, the recently invented rudder, and a carrying capacity of up to tuns [about one ton]. many duties of sheriffs and coroners were transferred to county landholders by commissions. in coastal counties, there were such commissions for supervising coastal defense and maintaining the beacons. each maritime county maintained a coast guard, which was under the command of a knight. ports had well-maintained harbors, quays, and streets. by there was an office of admiral of the fleet of the ships of the southern ports. women could inherit land in certain circumstances. some tenants holding land in chief of the king were women. regulation of trade became national instead of local. trade was relatively free; almost the only internal transportation tolls were petty portages and viages levied to recoup the expense of a bridge or road which had been built by private enterprise. responsibility for the coinage was transferred from the individual moneyers working in different boroughs to a central official who was to become master of the mint. the round half penny and farthing [ / penny] were created so that the penny needn't be cut into halves and quarters anymore. edward i called meetings of representatives from all social and geographic sectors of the nation at one parliament to determine taxes due to the crown. he declared that "what touches all, should be approved by all". he wanted taxes from the burgesses in the towns and the clergy's ecclesiastical property as well as from landholders. he argued to the clergy that if barons had to both fight and pay, they who could do no fighting must at least pay. when the clergy refused to pay, he put them outside the royal protection and threatened outlawry and confiscation of their lands. then they agreed to pay and to renounce all papal orders contrary to the king's authority. the model parliament of was composed of the three communities. the first were the lords, which included seven earls and forty-one barons. because of the increase of lesser barons due to a long national peace and prosperity, the lords attending were reduced in numbers and peerage became dependent not on land tenure, but on royal writ of summons. the great barons were chosen by the king and received a special summons in their own names to the council or parliament. others were called by a general summons. the second community was the clergy, represented by the two archbishops, bishops from each of eighteen dioceses, and sixty-seven abbots. the third community was the commons. it was composed of two knights elected by the suitors who were then present at the county court, two burgesses elected by principal burgesses of each borough, and two representatives from each city. the country knights had a natural affinity with the towns in part because their younger sons sought their occupation, wife, and estate there. also, great lords recruited younger brothers of yeoman families for servants and fighting men, who ultimately settled down as tradesmen in the towns. the country people and the town people also had a community of interest by both being encompassed by the county courts. the peasants were not represented in the county courts nor in parliament. one had to have land to be entitled to vote because the landowner had a stake in the country, a material security for his good behavior. parliaments without knights and burgesses still met with the king. but it was understood that no extraordinary tax could be levied without the knights and burgesses present. ordinary taxes could be arranged with individuals, estates, or communities. the lower clergy ceased to attend parliament and instead considered taxes to pay to the king during their national church convocations, which were held at the same time as parliament. for collection purposes, their diocesan synod was analogous to the count court. the higher clergy remained in parliament because they were feudal vassals of the king. edward's council was the highest tribunal. it comprised the chancellor, treasurer and other great officers of state, the justices of the three courts, the master or chief clerks of the chancery, and certain selected prelates and barons. the council assisted the king in considering petitions. most petitions to the king were private grievances of individuals, including people of no social rank, such as prisoners. other petitions were from communities and groups, such as religious houses, the two universities, boroughs, and counties. these groups sometimes formed alliances in a common cause. women sometimes petitioned. >from , the petitions were placed in four stacks for examination by the king and council, by the chancery, by the exchequer, or by the justices. many hours were spent hearing and answering petitions. from , the petitions were presented to the king in full parliament. the king still exercised the power of legislation without a full parliament. he might in his council issue proclamations. the chief justices still had, as members of the king's council, a real voice in the making of laws. the king and his justices might, after a statute has been made, put an authoritative interpretation upon it. royal proclamations had the same force as statutes while the king lived; sometimes there were demands that certain proclamations be made perpetual by being embodied in statutes, e.g. fixing wages. there was no convention that agreement or even the presence of representatives was required for legislation. the idea that the present can bind the absent and that the majority of those present may outvote the minority was beginning to take hold. edward i's councilors and justices took an oath to give, expedite, and execute faithful counsel; to maintain, recover, increase, and prevent the diminution of, royal rights; to do justice, honestly and unsparingly; to join in no engagements which may present the councilor from fulfilling his promise; and to take no gifts in the administration of justice, save meat and drink for the day. these were in addition to other matters sworn to by the councilors. parliament soon was required to meet at least once a year at the great hall at westminster beside the royal palace. london paid its representatives s. per day for their attendance at parliament. >from the time of edward ii, the counties paid their knight- representatives s. daily, and the boroughs paid their burgess- representatives s. daily. when it convened, the chancellor sat on the left and the archbishop of canterbury on the right of the king. just below and in front of the king his council sits on wool sacks brought in for their comfort from wool stored nearby. it answers questions. behind them on the wool sacks sit the justices, who may be called upon to give legal advice, e.g. in framing statutes. then come the spiritual and lay barons, then the knights, and lastly the elected burgesses and citizens. lawmaking is now a function of parliament, of which the king's council is a part, instead of a function of the king with his council and justices. the common people now had a voice in lawmaking, though legislation could be passed without their consent. the first legislation proposed by the commons was alteration of the forest laws governing the royal pleasure parks. such a statute was passed in a bargain for taxes of a percentage of all movables, which were mostly foodstuffs and animals. the king offered to give up the royal right to tax merchandise for a new tax: customs on exports. the barons and knights of the county agreed to pay an th, the burgesses, a th, and the clergy a th on their other movables. in time, several boroughs sought to be included in the county representation so they could pay the lower rate. this new system of taxation began the decline of the imposition of feudal aids, knights' fees, scutages, carucage, and tallage, which had been negotiated by the exchequer with the reeves of each town, the sheriff and county courts of each county, and the bishops of each diocese. the staple [depot or mart, from the french "estaple"] system began when the export of wool had increased and parliament initiated customs duties of s. d. on every sack of wool, woolfells [sheepskin with wool still on it], or skins exported in . these goods had to be assessed and collected at certain designated ports. certain large wool merchants, the merchants of the staple, were allowed to have a monopoly on the purchase and export of wool. imports of wine were taxed as tunnage as before, that is there was a royal right to take from each wine ship one cask for every ten at the price of s. per cask. in , edward i confirmed the magna carta and other items. judgments contrary to magna carta were nullified. the documents were to be read in cathedral churches as grants of edward and all violators were to be excommunicated. he also agreed not to impose taxes without the consent of parliament after baronial pressure had forced him to retreat from trying to increase, for a war in france, the customs tax on every exported sack of wool to s. from the s. d. per sack it had been since . the customs tax was finally fixed at s. for every sack of wool, s. for each tun [casket] of wine, and d. for every pound's worth of other goods. the "tenths and fifteenths" tax levied on income from movables or chattels became regular every year. edward also confirmed the forest charter, which called for its earlier boundaries. and he agreed not to impound any grain or wool or and like against the will of the owners, as had been done before to collect taxes. also, the special prises or requisitions of goods for national emergency were not to be a precedent. lastly, he agreed not to impose penalties on two earls and their supporters for refusing to serve in the war in france when the king did not go. >from , statutes were recorded in a statute roll as they were enacted. by the end of the s, the king's wardrobe, where confidential matters such as military affairs were discussed in his bedroom, became a department of state with the king's privy seal. the keeper of the privy seal was established as a new office by edward i in . the wardrobe paid and provisioned the knights, squires, and sergeants of the king and was composed mostly of civil servants. it traveled with the king. the crown's treasure, plate, tents, hangings, beds, cooking utensils, wine, and legal and financial rolls were carried on pack horses or in two-wheeled carts drawn by oxen, donkeys, or dogs. the people in the entourage rode horses or walked. the other two specialized administrative bodies were the exchequer, which received most of the royal revenue and kept accounts at westminster, and the chancery, which wrote royal writs, charters, and letters, and kept records. the chief functions of administration in the s were performed by the council, chancery, wardrobe, chamber [room off wardrobe for dressing and for storage], and exchequer. many of the chancellors had come from the wardrobe and chamber. in time, the chancellor ceased to be a part of the king's personal retinue and to follow the court. the chancery became primarily a department of central administration rather than a secretariat and record-keeping part of the royal household. the king used a privy seal to issue directives to the chancery. edward iii made some merchants earls and appointed them to be his ministers. he did not summon anyone to his council who did not have the confidence of the magnates [barons, earls, bishops, and abbots]. there was a recoinage due to debasement of the old coinage. this increased the number of coins in circulation. the price of wheat went from about s. in to about s. per quarter in . also the price of an ox went from s. to s. then there were broad movements of prices, within which there were wide fluctuations, largely due to the state of the harvest. from to , there was runaway inflation. in some places, both grain and livestock prices almost doubled between and . wheat prices peaked at s. d. a quarter in the famine year of . in , prices dropped and remained low for twenty years. the poor were hurt by high prices and the lords of the manors were hurt by low prices. as before, inadequate care and ignorance of nutrition caused many infant deaths. accidents and disease were so prevalent that death was always near and life insecure. many women died in childbirth. in the s, there were extremes of fashion in men's and women's clothing including tight garments, pendant sleeves down to the ground, coats so short they didn't reach the hips or so long they reached the heels, hoods so small they couldn't cover the head, and shoes with long curved peaks like claws at the toes. both men and women wore belts low on the hips. the skirt of a lady's tunic was fuller and the bodice more closely fitted than before. her hair was usually elaborately done up, e.g. with long curls or curled braids on either side of the face. a jeweled circlet was often worn around her head. ladies wore on their arms or belts, cloth handbags, which usually contained toiletries, such as combs made of ivory, horn, bone, or wood, and perhaps a little book of devotions. a man wore a knife and a bag on his belt. some women painted their faces and/or colored their hair. there were hand- held glass mirrors. some people kept dogs purely as pets. there was a great development of heraldic splendor with for instance, crests, coat-armor, badges, pennons [long, triangular flag], and helmets. they descended through families. not only was it a mark of service to wear the badge of a lord, but lords wore each other's badges by way of compliment. edward i always sought the agreement of parliament before assembling an army or taking actions of war, and parliamentary consent came to be expected for such. he completed the conquest and annexation of wales in . the feudal army was summoned for the last time in the year war with france, which began in . in it the english longbow was used to pierce french knights' armor. there had been much competition between the strength of arrows to pierce and the heaviness of armor to resist. guns and cannon with gunpowder were introduced in . a system to raise an army by contract was developed. contracts were made with nobles, knights, or esquires who undertook to enlist an agreed number of armored men-at-arms and archers, who were paid wages. the king provided transport for each contractor and his retinue, baggage, and horses. the title of "knight" now resumed its military character as well as being a social rank. after edward i died in , there was a period of general lawlessness and contests for power between earls and barons and the irresponsible king edward ii, who was not a warrior king. he eventually was assassinated. also in , parliament required the king to obtain its consent for any exchange or alteration of the currency. by , the guilds of london had become so powerful that they extracted a charter from the king that to be a citizen of london one had to be a member of a guild. by , scholars, the nobility, and the clergy had reading eyeglasses, which had been invented in italy, probably by the glass blowers. italy was famous for its glasswork. the first eyeglasses were fabricated by pouring molten glass into curved molds. the actual shape was difficult to control because thermal expansion and contraction resulted in bubbles and other optical imperfections. as of , importing foreign cloth or fur, except for use by the king's family, was prohibited, as was the export of unwoven wool. later, this was relaxed and a customs tax of % was imposed on wool exported. foreign cloth workers were allowed by statute to come to live in the nation, be granted franchises, and be in the king's protection. but no cloth was to be exported until it was fulled. during the reign of edward iii, flanders weavers were encouraged to come to england to teach the english how to weave and finish fine cloth. a cloth industry grew with all the manufacturing processes under the supervision of one capitalist manufacturer, who set up his enterprise in the country to avoid the regulations of the towns. the best places were hilly areas where there were many streams and good pasture for flocks of sheep. he hired shearers to cut the nap as short as possible to give a smooth surface, then spinsters to card and spin the wool in their country cottages, then weavers, and then fullers and dyers to come to fulling mills established near streams for their waterpower. fulling became mechanized as heavy wooden hammers run by water- power replaced feet trampling the cloth covered with soap or fuller's clay. the shaft loom was a technological advance in weaving. this loom was horizontal and its frames, which controlled the lifting of the warp threads, could each be raised by a foot treadle. this left both hands free to throw and catch the shuttle attached to the weft thread from side to side through the warp. also many more weaving patterns became possible through the use of different thread configurations on the frames. in , the commons forced king edward iii and council to approve their petition when parliament was still in session so that they would draft the legislation in true accordance with the petition. this had not been done when drafting had been done after parliament ended, when the phrase "saving the prerogatives of the king" was often added. also the lords and commons consulted each other and joined in petitions. but they usually stated their conclusions to the king separately. it was considered a burden rather than a privilege to attend parliament and elections for such were not often contested. they were conducted according to local custom until . in , the commons voted a tax of / th on movables for three years with the proviso that it be spent only on the war against scotland. this began the practice of appropriation of funds. in , began the practice of appointing treasurers of the subsidies to account to parliament for both receipts and disbursements. alien merchants were under the king's special protection. in return for paying extra import and export duties, edward iii gave alien merchants full rights of trade, travel, and residence in england free of all local tolls and restrictions, and guaranteed a fair hearing of their commercial and criminal cases in special pie powder (after french "pie poudrous" or dusty feet) courts at fairs. - the law - edward i remodeled the law in response to grievances and to problems which came up in the courts. the changes improved the efficiency of justice and served to accommodate it to the changing circumstances of the social system. "no man by force of arms, malice or menacing shall disturb anyone in making free election [of sheriffs, coroners, conservators of the peace by freeholders of the county]." "no city, borough, town, nor man shall be amerced without reasonable cause and according to the severity of his trespass. that is, every freeman saving his freehold, a merchant saving his merchandise, a villein saving his wainage [implements of agriculture], and that by his peers." no distress shall be taken of ploughing-cattle or sheep. young salmon shall not be taken from waters in the spring. no loan shall be made for interest. if an heir who is a minor is married off without the consent of the guardian, the value of the marriage will be lost and the wrongdoer imprisoned. if anyone marries off an heir over years of age without the consent of the guardian, the guardian shall have double the value of the marriage. moreover, anyone who has withdrawn a marriage shall pay the full value thereof to the guardian for the trespass and make amends to the king. and if a lord refuses to marry off a female heir of full age and keep her unmarried because he covets the land, then he shall not have her lands more than two years after she reaches full age, at which time she can recover her inheritance without giving anything for the wardship or her marriage. however, if she maliciously refuses to be married by her lord, he may hold her land and inheritance until she is the age of a male heir, that is, years old and further until he has taken the value of the marriage. aid to make one's son a knight or marry off his daughter of a whole knight's fee shall be taken s., and s. [yearly income from] land held in socage s. [ %], and of more, more; and of less, less; after the rate. and none shall levy such aid to make his son a knight until his son is years old, nor to marry his daughter until she is seven year old. a conveyance of land which is the inheritance of a minor child by his guardian or lord to another is void. dower shall not abate because the widow has received dower of another man unless part of the first dower received was of the same tenant and in the same town. but a woman who leaves her husband for another man is barred from dower. a tenant for a term of years who has let land from a landlord shall not let it lie waste, nor shall a landlord attempt to oust a tenant for a term of years by fictitious recoveries. when two or more hold wood, turfland, or fishing or other such thing in common, wherein none knows his several, and one does waste against the minds of the others, he may be sued. lands which are given to a man and his wife upon condition that if they die without heirs, the land shall revert to the donor or his heir, may not be alienated to defeat this condition. if a man takes land in marriage with a wife, and she dies before him, the land will revert to the donor or his heir, unless the couple has a child, in which case the husband will have the land by the courtesy of the nation for his life before it reverts to the donor or his heir. the ecclesiastical law had a doctrine for women-covert, i.e. women under the protection or coverture of a husband. it held that chattels of a woman who married vested in her husband, but he could not dispose of them by will. her jewelry, but not her apparel, could go to his creditors if his assets didn't cover his debts. if she was a merchant when she married, she could still sell her goods in the open market. the husband also had the right to the rents and profits from his wife's real estate, but not the real estate itself, unless by the birth of a child he became tenant for life by courtesy. only the father, but not the mother had authority over their children. a father had a right to his child's services, and could sue a third party for abducting, enticing away, or injuring the child, just as he could for his servants. a husband was liable for the debts of his wife, even if incurred before the marriage. he was answerable for her torts and trespasses, except for battery. for this reason, he was allowed to chastise her, restrain her liberty for gross misbehavior, and punish her by beating for some misdemeanors. but the courts would protect her from death, serious bodily harm, or his failure to supply her the necessities of life. promises under oath were not recognized for married women. a conveyance or agreement of a married woman was void. these principles held only if she was under the protection of her husband, i.e. a woman-covert, and not if they lived separately, for instance if he went to sea. if separated, she had a right to alimony from him to maintain herself. a free tenant may alienate his land freely, but if the alienation was for an estate in fee simple [to a man and his heirs], the person acquiring the land would hold of the land's lord and not of the person alienating the land. (this halted the growth of subinfeudation and caused services as well as incidents of aids, relief, escheat, wardship, and marriage to go directly to the chief lord. it also advantaged the crown as overlord, which then acquired more direct tenants.) one may create an estate which will descend in unbroken succession down the line of inheritance prescribed in the original gift as long as that line should last, instead of descending to all heirs. this was called a fee simple conditional holding of land. the successive occupants might draw the rents and cut the wood, but on the death of each, his heir would take possession of an unencumbered interest, unfettered by any liability for the debt of his ancestor or by any disposition made by him during his lifetime e.g. a wife's estate in dower or a husband's estate in courtesy. if there was no issue, it reverted to the original donor. (this curtailed the advantage of tenants of the greater barons who profited by increased wardships and reliefs from subinfeudation from subdivision and better cultivation of their land while still paying the greater barons fixed sums. this statute that protected reversionary estates incidentally established a system of entails. this new manner of holding land: "fee tail", is in addition to the concepts of land held in fee simple (i.e. with no subdivisions) and land held for life. no grantee or his heirs could alienate the land held in fee tail. the donor could give directions that the land could remain to another person rather than reverting to himself. (interests in remainder or reversion of estates in land replace the lord's tenurial right to succeed to land by escheat if his tenant dies without heirs.) in kent, all men are free and may give or sell their lands without permission of their lords, as before the conquest. (since kent was nearest the continent, money flowed between england and the continent through kent. so kent never developed a manorial system of land holding, but evolved from a system of clans and independent villages directly into a commercial system. anyone disseising another whereby he also robs him or uses force and arms in the disseisin shall be imprisoned and fined. the plaintiff shall recover seisin and damages. "all must be ready at the command and summons of sheriffs, and at the cry of the country, to sue and arrest felons as necessary as well within franchise as without." otherwise, he shall be fined. a lord defaulting shall lose his franchise to the king. a bailiff defaulting shall be imprisoned a year as well as fined, or be imprisoned two years if he cannot pay the fine. a sheriff, coroner, or any other bailiff who conceals a felony will be imprisoned for a year and pay a fine, or be imprisoned for three years if he cannot pay the fine. villeins must report felons, pursue felons, serve in the watch, and clear growth of concealing underwood from roads. they must join the military to fight on the borders when called. desertion from the army is punishable. accessories to a crime shall not be declared outlaw before the principal is proven guilty. (this made uniform the practice of the various counties.) only those imprisoned for the smaller offenses of a single incidence of petty larceny, receipt of felons, or accessory to a felony, or some other trespass not punishable by life or limb shall be let out by sufficient surety. prisoners who were outlawed or escaped from prison or are notorious thieves or were imprisoned for felonious house burning, passing false money, counterfeiting the king's seal, treason touching the king himself, or other major offenses or have been excommunicated by the church may not be released. killing in self-defense and by mischance shall be pardoned from the king's indictment. killing by a child or a person of unsound mind shall be pardoned from the king's indictment. (but a private accuser can still sue.) any man who ravishes [abducts] any woman without her consent or by force shall have the criminal penalty of loss of life or limb. (the criminal penalty used to be just two years in prison.) trespasses in parks or ponds shall be punished by imprisonment for three years and a fine as well as paying damages to the wronged person. after his imprisonment, he shall find a surety or leave the nation. "forasmuch as there have been often times found in the country devisors of tales, where discord, or occasion of discord, has many times arisen between the king and his people, or great men of this realm; for the damage that has and may thereof ensue, it is commanded, that from henceforth none be so hardy to tell or publish any false news or tales, whereby discord or occasion of discord or slander may grow between the king and his people, or the great men of the realm." anyone doing so shall be imprisoned until he brings into the court the first author of the tale. a system of registration and enforcement of commercial agreements was established by statute. merchants could obtain a writing of a debt sealed by the debtor and authenticated by royal seal or a seal of a mayor of certain towns, and kept by the creditor. failure to pay a such a debt was punishable by imprisonment and, after three months, the selling of borough tenements and chattels and of county lands. during the three months, the merchant held this property in a new tenure of "statute merchant". (prior to this, it was difficult for a foreign merchant to collect a debt because he could not appear in court which did not recognize him as one of its proper "suitors" or constituents, so he had to trust a local attorney. also, the remedy was inadequate because the history of the law of debt was based on debt as a substitute for the blood feud, so that failure to pay meant slavery or death. also a debtor's land was protected by feudal custom, which was contrary to the idea of imposing a new tenant on a lord.) "in no city, borough, town, market, or fair shall a person of the realm be distrained for a debt for which he is not the debtor or pledge." anyone making those passing with goods through their jurisdiction answer to them in excess of their jurisdiction shall be grievously amerced to the king. no market town shall take an outrageous toll contrary to the common custom of the nation. since good sterling money has been counterfeited with base and false metal outside the nation and then brought in, foreigners found in the nation's ports with this false money shall forfeit their lives. anyone bringing money into the nation must have it examined at his port of entry. payments of money shall be made only by coin of the appropriate weight delivered by the warden of the exchange and marked with the king's mark. (a currency exchange was established at dover for the exchange of foreign currency for english sterling.) the silver in craftwork must be sterling and marked with the leopard's head. the gold in craftwork must meet the standard of the touch of paris. the assize of bread and ale had been and was enforced locally by local inspectors. now, the crown appointed royal officers for the gauge of wines and measurement of cloths. edicts disallowed middlemen from raising prices against consumers by such practices as forestalling [intercepting goods before they reached the market and then reselling them] or engrossing [buying a large supply of a commodity to drive up the price] and price regulation was attempted. for instance, prices were set for poultry and lamb, in a period of plenty. maximum prices were set for cattle, pigs, sheep, poultry, and eggs in , but these prices were hard to enforce. in london examples of prices set are: best hen d. q., best wild goose d., best hare d., best kid d., best lamb d., best fresh herrings for d., best pickled herrings for d., best haddock d., best fresh salmon s. freemen may drive their swine through the king's demesne forest to feed in their own woods or elsewhere. no man shall lose his life or limb for killing deer in the forest, but instead shall be grievously fined or imprisoned for a year. the forest charter allowed a man to cut down and take wood from his own woods in the king's forest to repair his house, fences, and hedges. he may also enclose his woods in the king's forest with fences and hedges to grow new trees and keep cattle and beasts therefrom. after seven years growth of these new trees, he may cut them down for sale with the king's permission. each borough has its own civil and criminal ordinances and police jurisdiction. borough courts tended to deal with more laws than other local courts because of the borough's denser populations, which were composed of merchants, manufacturers, and traders, as well as those engaged in agriculture. only borough courts have jurisdiction over fairs. in some boroughs the villein who resides for a year and a day becomes free. there are special ordinances relating to apprentices. there are sometimes ordinances against enticing away servants bound by agreement to serve another. the wife who is a trader is regarded in many places as a feme sole [single woman rather than a feme covert [woman-covert], who was under the protection of a husband]. there may be special ordinances as to the liability of masters for the acts of their apprentices and agents, or as to brokers, debt, or earnest money binding a bargain. the criminal and police jurisdiction in the borough was organized upon the same model as in the country at large, and was controlled by the king's courts upon similar principles, though there are some survivals of old rules, such as mention of the bot and the wer. the crimes committed are similar to those of the country, such as violence, breaches of the assize of bread and beer, stirring up suits before the ecclesiastical courts, digging up or obstructing the highway, not being enrolled in a tithing, encroachments upon or obstructions of rights of common. the most striking difference with the country at large are the ordinances on the repair or demolition of buildings, encroachments on another's building, fires, and nuisances. specimens of other characteristic urban disputes are: selling bad food, using bad materials, unskillful or careless workmanship, fraudulent weights and measures, fraud in buying and selling, forestalling or regrating [buying in one market to resell in another market], acting in a way likely to endanger the liberties of the borough, usury, trading without being a citizen, assisting other unlicensed persons to trade, unlawfully forming a guild, complaints against various guilds in which trade might be organized. since the ordinances were always liable to be called in question before the king's courts, they tended to become uniform and in harmony with the principles of the common law. also, trading between boroughs kept them knowledgeable about each other's customs and conditions for trade, which then tended to standardize. boroughs often had seals to prove communal consent and tended to act as a corporate body. borough ordinances often include arson such as this one: "and if a street be set on fire by any one, his body shall be attached and cast into the midst of the fire." robbery by the miller was specially treated by an ordinance that "and if the miller be attainted [found guilty] of robbery of the grain or of the flour to the amount of d., he shall be hanged from the beam in his mill." in london, an ordinance prescribed for bakers for the first offense of making false bread a forfeiture of that bread. for the second offense was prescribed imprisonment, and for the third offense placement in the pillory. a london ordinance for millers who caused bread to be false prescribed for them to be carried in a tumbrel cart through certain streets, exposed to the derision of the people. by statute, no one may make a gift or alienation of land to the church. an attempt to do so will cause the land to escheat to the lord, or in his default, to the king. religious houses may not alienate land given to them by the king or other patrons because such gifts were for the sake of someone's soul. an attempt to do so will cause the land to revert to the donor or his heir. if the church did not say the prayers or do the other actions for which land was given to it, the land will revert to the donor or his heir. land may not be alienated to religious bodies in such a way that it would cease to render its due service to the king. (the church never died, never married, and never had children.) the church shall send no money out of the nation. (this statute of mortmain was neutralized by collusive lawsuits in which the intended grantor would sue the intended grantee claiming superior title and then would default, surrendering the land to the intended grantee by court judgment.) "concerning wrecks of the sea, where a man, a dog, or a cat escape alive out of the ship, that such ship nor barge nor anything within them shall be deemed wreck, but the goods shall be saved and kept by view of the sheriff, coroner, or the king's bailiff". if anyone proves the goods were his within a year and a day, they shall be restored to him without delay. otherwise, they shall be kept by the king. "and where wreck belongs to one other than the king, he shall have it in like manner". if he does otherwise, he shall be imprisoned and pay damages and fine. some statutes applied only to kent county, which had a unique position between london and the continent. one could sell or give away his land without the consent of one's lord. the services of the land, however, could only be sold to the chief lord. inheritance of land was to all sons by equal portions, and if there were no sons, then to all daughters in equal portions. the eldest brother has his choice of portion, then the next oldest, etc. the goods of a deceased person were divided into three parts after his funeral expenses and debts were paid. one third went to the surviving spouse. one third went to the deceased's sons and daughters. one third could be disposed by will of the decedent. if there were no children, one half went to the spouse and one half went according to will. if an heir was under years old, his next of kin to whom inheritance could not descend was to be his guardian. a wife who remarried or bore a child lost her dower land. a husband lost his dower if he remarried. if a tenant withheld rent or services, his lord could seek award of court to find distress on his tenement and if he could find none, he could take the tenement for a year and a day in his hands without manuring it. it the tenant paid up in this time, he got the tenement back. if he didn't within a year and a day, however, the lord could manure the land. a felon forfeited his life and his goods, but not his lands or tenements. a wife of a felon had the dower of one half or her husband's lands and tenements. the common law recognized the tort of false imprisonment if a man arrested as a felon, a person who was not a felon. - judicial procedure - the writ of quo warranto [by what right] is created, by which all landholders exercising jurisdictions must bring their ancestors' charters before a traveling justice for the common pleas for examination and interpretation as to whether they were going beyond their charters and infringing upon the jurisdiction of the royal court. as a result, many manor courts were confined to manorial matters and could no longer view frankpledge or hear criminal cases, which were reserved for the royal courts. in the manor courts which retained criminal jurisdiction, there was a reassertion of the obligation to have present a royal coroner, whose duty it was to see that royal rights were not infringed and that the goods of felons were given to the crown and not kept by the lords. the supreme court was the king and his council in parliament. it heard the most important causes, important because they concern the king, or because they concern very great men (e.g. treason), or because they involve grave questions of public law, or because they are unprecedented. it has large, indefinite powers and provides new remedies for new wrongs. the office of great justiciar disappears and the chancellor becomes the head of the council. after the council were the royal courts of the king's bench, common pleas, and the exchequer, which had become separate, each with its own justices and records. the court of common pleas had its own chief justice and usually met at westminster. this disadvantaged the small farmer, who would have to travel to westminster to present a case. the king's council maintained a close connection with the court of the king's bench, which heard criminal cases and appeals from the court of common pleas. it traveled with the king. there were many trespass cases so heard by it in the reign of edward i. the king's council did a great deal of justice, for the more part criminal justice. it was supported by the populace because it dealt promptly and summarily with rebellion or some scandalous acquittal of a notorious criminal by bribed or partial jurors, and thereby prevented anarchy. its procedure was to send for the accused and compel him to answer upon oath written interrogatories. affidavits were then sworn upon both sides. with written depositions before them, the lords of the council, without any jury, acquit or convict. fines and imprisonments were meted out to rioters, conspirators, bribers, and perjured jurors. no loss of life or limb occurred because there had been no jury. in criminal cases, witnesses acquainted with particular facts were added to the general assize of twelve men from each hundred and four men from each town. the assize then bifurcated into the grand jury of twelve to twenty-four men and the petty jury or jury of verdict of twelve men, which replaced ordeal, compurgation, and trial by combat as the method of finding the truth. the men of the petty jury as well as those of the grand jury were expected to know or to acquaint themselves with the facts of the cases. the men of the petty jury tended to be the same men who were on the grand jury. felony included such crimes as homicide, arson, rape, robbery, burglary, and larceny. murder still meant secret homicide. burglary was an offense committed in times of peace and consisted of breaking into churches, houses, and into the walls and gates of villages and boroughs. these six offenses could be prosecuted by indictment or private accusation by an individual. the penalties involved loss of life or limb or outlawry; a felon's goods were confiscated by the crown and his land was forfeited to the crown for a year and a day, after which it escheated to the felon's lord. the peace of the king now did not die with the king, but renewed automatically without an interval before the inauguration of a new king. notorious felons who would not consent or put themselves on inquests for felonies with which they were charged at royal courts were put in strong and hard imprisonment to persuade them to accept trial by assize. this inducement progressed into being loaded with heavy chains and placed on the ground in the worst part of the prison and being fed a only little water one day and a little bread the next. sometimes pieces of iron or stones were placed one another onto their prone bodies to persuade them to plead. this then developed into being loaded with as much iron as could be borne, and finally into being pressed to death ["peine forte et dure"]. many of these men chose to die by this pressing so that their families could inherit their property, which would have been forfeited if they had been convicted of serious crimes. the most common cases in the court of common pleas were "detinue" [wrongful detention of a good or chattel which had been loaned, rented, or left for safekeeping with a "bailee", but belonged to the plaintiff], "debt" [for money due from a sale, for money loaned, for rent upon a lease for years, from a surety, promised in a sealed document, or due to arbitrators to whom a dispute had been submitted] and "account" [e.g. against bailiffs of manors, a guardian in socage, and partners]. it also heard estovers of wood, profit by gathering nuts, acorns, and other fruits in wood, corody [allowance of food], yearly delivery of grain, toll, tunnage, passage, keeping of parks, woods, forests, chases, warrens, gates, and other bailiwicks, and offices in fee. the itinerant justices gradually ceased to perform administrative duties on their journeys because landed society had objected to their intrusiveness. edward i substituted regular visitations of justices of assize for the irregular journeys of the itinerant justices. each one of four circuits had two justices of assize. >from about , these justices of assize heard cases of gaol delivery. their jurisdiction expanded to include serious criminal cases and breach of the king's peace. breaches of the forest charter laws were determined by justices of the king's forest, parks, and chases, along with men of assize. coroners' inquest procedures were delineated by statute and included describing in detail in the coroner's rolls every wound of a dead body, how many may be culpable, and people claiming to have found treasure who might be suspects. the precedent for punishment for treason was established by the conviction of a knight, david ab gruffydd, who had turned traitor to the welsh enemy, after fighting with edward and being rewarded with land, during the conquest of wales. he had plotted to kill the king. he was found guilty of treason by parliament and condemned to be dragged at the heels of horses for being a traitor to his knightly vows, hanged by the neck for his murders, cut down before consciousness left him to have his entrails cut out for committing his crimes during the holy week of easter, and his head cut off and his body divided into four parts for plotting against the king's life. the head was placed on the tower of london and his body sections were placed in public view at various other locations in england. this came to be known as "hanging, drawing, and quartering". prior to this the penalty had been imprisonment, usually followed by ransom. trial by combat is now limited to certain claims of enfeoffment of large land holding and is barred for land held in socage, burgage, or by marriage. assize is the usual manner of trial, but compurgation remains in the borough court long after it becomes obsolete in the royal courts. defendants no longer request assizes but are automatically put to them. numerous statutes protect the integrity of the courts and king's offices by double and treble damages and imprisonment for offenses such as bribery, false informers, conspiracy to falsely move or maintain pleas, champerty [covenant between a litigant and another for the other to have a part or profit in the award in return for maintaining the suit], conflict of interest by court officers taking part in a quarrel pending in court or working any fraud whereby common right may be delayed or disturbed. there had been many abuses, the most common of which was extortion by sheriffs, who gaoled people without cause to make them pay to be released. the prohibition of maintenance of a quarrel of a party in court by a nonparty was extended in to all persons, including the king's councilors and ministers, and great men, e.g. by sending letters. in , this prohibition specifically included prelates, earls, barons taking in hand quarrels other than their own, or maintaining them for gift, promise, amity, favor, doubt, or fear, in disturbance of law and hindrance of right. the reason given was that there had been persons disinherited, delayed or disturbed in their rights, and not guilty persons convicted or otherwise oppressed. all great men were required to put out of their service all maintainers who had been retained, and void their fees and robes, without giving them aid, favor, or comfort. this law was not obeyed. the king reserved to himself and his council in its judicial capacity the correction of all breaches of the law which the lower courts had failed to remedy, whether from weakness, partiality, corruption, or jury timidity, and especially when the powerful barons defied the courts. the chancery also sought to address causes which were impeded in their regular course, which often involved assaults, batteries, and forcible dispossessions. disputes within the royal household were administered by the king's steward. he received and determined complaints about acts or breaches of the peace within twelve miles around the king's person or "verge". he was assisted by the marshall in the "court of the hall" and by the clerk of the market when imposing fines for trading regulation violations in the "court of the market". ecclesiastical courts were successful in their competition with the secular courts for jurisdiction over testamentary matters [concerning wills] and succession [no will] to chattels. there were local courts of the vill, borough, manor, hundred, county, sheriff, escheator, and royal bailiff, with overlapping jurisdictions. the county court in its full session, that is, as it attended the itinerant justices on their visitation, contained the archbishops, bishops, priors, earls, barons, knights, and freeholders, and from each township four men and the reeve, and from each borough twelve burgesses. it was still the folkmote, the general assembly of the people. in , suitors who could not spend s. a year within their county were not required to attend their county court. the most common plea in the hundred court was trespass. it also heard issues concerning services arising out of land, detention of chattels, small debts, wounding or maiming of animals, and personal assaults and brawls not amounting to felony. it met every three weeks. the sheriff held his turn twice a year and viewed frankpledge once a year. when edward i came to the throne, over half of the approximately hundred courts had gone under the jurisdiction of a private lord owing to royal charter, prescriptive right, and usurpation. the sheriff's powers in these hundreds varied. in some, the sheriff had no right of entry. in the manor courts, actions of debt, detinue, and covenant were frequent. sometimes there are questions of a breach of warranty of title in agreements of sale of land. accusations of defamation were frequent; this offense could not be taken to the king's court, but it had been recognized as an offense in the anglo-saxon laws. in some cases, the damages caused are specifically stated. for instance, defamation of a lord's grain would cause other purchasers to forbear buying it. there are frequent cases of ordinary thefts, trespasses, and assaults. the courts did rough but substantial justice without distinction between concepts such as tort and contract. in fact, the action of covenant was the only form of agreement enforceable at common law. it required a writing under seal and awarded damages. their law was not technical, but elastic, and remedies could include injunctions, salary attachment, and performance of acts. the steward holding the manor court was often a lawyer. some pleas in the manors of the abbey of bec were: . hugh le pee in mercy (fine, d.) for concealing a sheep for half a year. pledges, simon of newmere, john of senholt . william ketelburn in mercy (fine, s. d.) for divers trespasses. pledge, henry ketelburn. . hugh derwin for pasture, d. richard hulle for divers trespasses, d. henry stanhard for pasture, d. . william derwin for a trespass, d.; pledge, william sperling. . hugh hall gives the lord d. that he may have the judgment of the court as to a tenement and two acres of land, which he demands as of right, so he says. and it being asserted that the said land is not free[hold] let the court say its say. and the court says that the tenement and one of the two acres are of servile condition and that the other acre is of free condition. the case is reserved for the lord's presence. pledge, john brian. . john palmer is put in seisin of his father's tenement and gives the lord s. d. as entry money. . william ketelburn gives the lord s. d. that he may be removed from the office of reeve. pledge, robert serjeant. . william frith for subtraction of work, d. john reginald for the same, d. john of senholt, d. william ketelburn, d. . for the common fine to be paid on s. andrew's day, s. . it is presented by the chief pledges that godfrey serjeant has made default; also that john le pee has unlawfully thrown up a bank; therefore let it be set to rights. . robert smith is put in seisin of his father's tenement and gives the lord four pounds for entry money. pledge, robert serjeant. . william ketelburn for a trespass, s. d. . william fleming gives four pounds for leave to contract [marriage] with widow susan. pledge, richard serjeant. . john mabely gives the lord s. to have the judgment of twelve men as to certain land whereof noah deforces him; pledges, richard smith, ralph bernard. the said jurors say that noah the fat has right; therefore etc. . agnes stampelove gives the lord s. for leave to come and go in the vill but to dwell outside the lord's land. pledge, richard smith. . godfrey tailor the younger for a trespass, s. . whereas godfrey tailor the younger has demanded against noah a farthing land, now the action is compromised in manner following:- -godfrey for himself and his heirs remises to the said noah and his heirs all right and claim which he has or can have in the said farthing land by reason of the gift made by his grandfather john tailor. . agnes mabely is put in seisin of a farthing land which her mother held, and gives the lord s. d. for entry money. pledges, noah, william askil. . the full court declares that in case any woman shall have altogether quitted the lord's domain and shall marry a freeman, she may return and recover whatever right and claim she has in any land; but if she shall be joined to a serf, then she cannot do this during the serf's lifetime, but after his death she may. . william alice's son is put in seisin of a bakehouse in the king's street, and shall keep up the house at his own cost and gives d. for entry money, and s. annual rent payable at three terms, viz. s. d. at martinmas, s. d. at lady day, s. d. at christmas. pledges, adam clerk, john deboneir. . john son of alma demands a cottage which henry fleming holds and gives the lord d. for the oath and recognition of men; pledge, richard jordan. the jurors say that henry fleming has the better right. . baldwin cobbler's son finds [as pledges] walter cobbler, roger of broadwater, robert linene, william frances, that notwithstanding his stay in london he will always make suit with his tithing and will at no time claim any liberty contrary to the lord's will and will come to the lord whenever the lord wills. . simon patrick gives the lord d. to have the judgment of the court as to a cottage of which the widow of geoffrey dogers deforces him; pledge, simon of strode. the said jurors say that the said simon has the better right. and the said simon remises and quitclaims all his right to his sister maud and her husband john horin, [who] gives the lord s. for entry money; pledges, simon patrick, john talk. . hugh wiking for not making suit at the lord's mill, d. . it was presented that william derwin and john derwin (fine, d.) committed a trespass against agnes dene, and the cry was raised, therefore etc. . hugh churchyard contracted [marriage] without the lord's leave; [fine] d. . let juliana forester be distrained for her default, also william moor. . john kulbel in mercy (fine, d.) for not producing gregory miller, and he is commanded to produce him at the next court. . hugh andrew's son gives the lord s. for leave to marry; pledge, robert serjeant. . juliana forester gives the lord d. in order that for the future no occasion may be taken against her for neglect of suit of court. . john franklain is put in seisin of his father's tenement and gives the lord s. for entry; pledge, robert serjeant. . henry cross gives the lord s. for license to marry; pledge, robert serjeant. . isabella warin gives the lord s. for leave to give her daughter mary in marriage; pledge, john serjeant. . it is presented by the whole township that ralph le war has disseised the lord of a moiety of a hedge, whereas it had often been adjudged by award of the court that the said hedge belongs as to one moiety to the lord and as to the other to ralph, and the said ralph claims and takes to his use the whole to the lord's damage etc. also they say that the said ralph holds overcolkescroft, which land by right is the lord's. . it is presented by unanimous verdict of the whole court that if anyone marries a woman who has right in any land according to the custom of the manor and is seised thereof by the will of the lord, and the said woman surrenders her right and her seisin into the hands of the lord and her husband receives that right and seisin from the hands of the lord, in such case the heirs of the woman are for ever barred from the said land and the said right remains to the husband and his heirs. therefore let william wood, whose case falls under this rule, hold his land in manner aforesaid. and for the making of this inquest the said william gives the lord s. d. . the tenements of lucy mill are to be seized into the lord's hands because of the adultery which she has committed and the bailiff is to answer for them. the chief pledges present that cristina daughter of richard maleville has married at london without the lord's licence; therefore let the said richard be distrained. he has made fine with d. also that alice berde has done the same; therefore let her be distrained. also that robert fountain has committed a trespass against william gery; therefore the said robert is in mercy; pledge, humfrey; fine, d. also that richard maleville has drawn blood from stephen gust; therefore he is in mercy; fine, s. . geoffrey coterel in mercy for a battery; fine, d.; pledge, adam serjeant. geoffrey coterel for trespass in the hay; fine, d.; pledge, alan reaper. hugh of senholt in mercy for trespass in the green wood; fine, d. . hugh wiking in mercy for delay in doing his works; fine, d. hugh churchyard for trespass in [cutting] thorns; fine, d. thomas gold in mercy for trespass in the wood; fine, d.; pledge, robert grinder. . william dun in mercy for subtraction of his works due in autumn; fine, s. avice isaac for the same, d.; hugh wiking for the same, d.; agnes rede in mercy for her daughter's trespass in the corn [grain], d. . walter ash in mercy for not making suit to the lord's mill; fine, d. hugh pinel in mercy for diverting a watercourse to the nuisance of the neighbors; fine, d.; pledge, robert fresel. . john dun in mercy for carrying off corn [grain] in the autumn; pledge, adam white. alan reaper gives the lord d. on account of a sheep which was lost while in his custody. . adam white in mercy for bad mowing; fine, d. hugh harding in mercy for the same; fine, d. . the chief pledges present that henry blackstone (fine, d.), hugh churchyard (fine, d.), walter ash (fine, d.), henry of locksbarow (fine, d.), avice isaac (fine, d.), richard matthew (fine, d.), hugh wiking (fine,--), ralph dene (fine, d.), john palmer (fine, d.), john coterel (fine, d.), john moor (fine, d.), john cubbel (fine, d.), hugh andrew (fine, d.), philip chapman (fine, d.), john fellow (fine, d.), robert bailiff (fine, d.), alice squire (fine, d.), john grately (fine,--), richard hull (fine, d.), osbert reaper (fine, d.), and robert cross (fine, d.), have broken the assize of beer. also that henry of senholt, henry brown, hugh hayward, richard moor, juliana woodward, alice harding, peronel street, eleanor mead make default. also that walter ash (fine,--), john wiking (fine,--), john smart (fine,--), and henry coterel have married themselves without the lord's licence; therefore let them be distrained to do the will of the lord. . alan reaper for the trespass of his foal; fine, d. . philip chapman in mercy for refusing his gage to the lord's bailiff; fine, d. . william ash in mercy for trespass in the growing crop; fine, d. . john iremonger in mercy for contempt; fine, d. . the chief pledges present that william of ripley (fine, d.), walter smith (no goods), maud of pasmere (fine, d.), have received [strangers] contrary to the assize; therefore they are in mercy. . maud widow of reginald of challow has sufficiently proved that a certain sheep valued at d. is hers, and binds herself to restore it or its price in case it shall be demanded from her within year and day; pledges, john iremonger and john robertd; and she gives the lord d. for [his] custody [of it]. the court of hustings in london is empowered to award landlords their tenements for which rent or services are in arrears if the landlord could not distrain enough tenant possessions to cover the arrearages. wills are proven in the court of husting, the oldest court in london, which went back to the times of edward the confessor. one such proven will is: "tour (john de la) - to robert his eldest son his capital messuage and wharf in the parish of berchingechurch near the land called 'berewardesland`. to agnes his wife his house called 'wyvelattestone', together with rents, reversions, etc. in the parish of s. dunstan towards the tower, for life; remainder to stephen his son. to peter and edmund his sons lands and rents in the parish of all hallows de berhyngechurch; remainders over in default of heirs. to agnes, wife of john le keu, fishmonger, a house situate in the same parish of berhyng, at a peppercorn [nominal] rent." the court of the mayor of london heard diverse cases, including disputes over goods, faulty or substandard goods, adulteration, selling food unfit for human consumption, enhancing the price of goods, using unlawful weighing beams, debts, theft, distraints, forgery, tavern brawling, bullying, and gambling. insulting or assaulting a city dignitary was a very serious crime; an attack on the mayor was once capitally punished. sacrilege, rape, and burglary were punished by death. apart from the death penalty, the punishment meted out the most was public exposure in the pillory, with some mark of ignominy slung round the neck. if the crime was selling bad food, it was burnt under the offender's nose. if it was sour wine, the offender was drenched in it. standing in the pillory for even one hour was very humiliating, and by the end of the day, it was known throughout the city. the offender's reputation was ruined. some men died in the pillory of shame and distress. a variation of the pillory was being dragged through the streets on a hurdle. prostitutes were carted through the streets in coarse rough cloth hoods, with penitential crosses in their hands. scolds were exposed in a "thewe" for women. in more serious cases, imprisonment for up to a year was added to the pillory. mutilation was rare, but there are cases of men losing their right hands for rescuing prisoners. the death penalty was usually by hanging. the following four london cases pertain to customs, bad grain, surgery, and apprenticeship, respectively. "john le paumer was summoned to answer richer de refham, sheriff, in a plea that, whereas the defendant and his society of bermen [carriers] in the city were sworn not to carry any wine, by land or water, for the use of citizens or others, without the sheriff's mark, nor lead nor cause it to be led, whereby the sheriff might be defrauded of his customs, nevertheless he caused four casks of wine belonging to ralph le mazun of westminster to be carried from the city of westminster without the sheriff's mark, thus defrauding the latter of his customs in contempt of the king etc. the defendant acknowledged the trespass. judgment that he remain in the custody of the sheriff till he satisfy the king and the court for offense." "walter atte belhaus, william atte belhous, robert le barber dwelling at ewelleshalle, john de lewes, gilbert le gras, john his son, roger le mortimer, william ballard atte hole, peter de sheperton, john brun and the wife of thomas the pelterer, stephen de haddeham, william de goryngg, margery de frydaiestrate, mariot, who dwells in the house of william de harwe, and william de hendone were attached to answer for forestalling all kinds of grain and exposing it, together with putrid grain, on the pavement, for sale by the bushel, through their men and women servants; and for buying their own grain from their own servants in deception of the people. the defendants denied that they were guilty and put themselves on their country. a jury of richard de hockeleye and others brought in a verdict of guilty, and the defendants were committed to prison till the next parliament." "peter the surgeon acknowledged himself bound to ralph de mortimer, by richard atte hill his attorney, in the sum of s., payable at certain terms, the said ralph undertaking to give peter a letter of acquittance [release from a debt]. this recognizance arose out of a covenant between them with regard to the effecting of a cure. both were amerced for coming to an agreement out of court. a precept was issued to summon all the surgeons of the city for friday, that an inquiry might be made as to whether the above peter was fitted to enjoy the profession of a surgeon." "thomas de kydemenstre, shoemaker, was summoned to answer william de beverlee, because he did not clothe, feed and instruct his apprentice thomas, william's son, but drove him away. the defendant said that the apprentice lent his master's goods to others and promised to restore them or their value, but went away against his wish; and he demanded a jury. subsequently, a jury of william de upton and others said the apprentice lent two pairs of shoes belonging to his master and was told to restore them, but, frightened by the beating which he received, ran away; further that the master did not feed and clothe his apprentice as he ought, being unable to do so, to the apprentice's damage d., but that he was now in a position to look after his apprentice. thereupon thomas de kydemenstre said he was willing to have the apprentice back and provide for him, and the father agreed. judgment that the master take back the apprentice and feed and instruct him, or that he repay to the father, the money paid to the latter, and that he pay the father the d. and be in mercy." a professional class of temporal attorneys whose business it is to appear on behalf of litigants is prominent in the nation. attorneys are now drawn from the knightly class of landed gentlemen, instead of ecclesiastical orders. since it was forbidden for ecclesiastics to act as advocates in the secular courts, those who left the clergy to become advocates adopted a close-fitting cap to hide their tonsures, which came to be called a "coif". the great litigation of the nation is conducted by a small group of men, as is indicated by the earliest year books of case decisions. they sit in court and will sometimes intervene as amicus curiae [friends of the court]. parliament refers difficult points of law to them as well as to the justices. these reports became so authoritative that they could be cited in the courts as precedent. groups of attorneys from the countryside who are appearing in london courts during term-time and living in temporary lodgings start to form guild-like fellowships and buy property where they dine and reside together, called the inns of court. they begin to think of themselves as belonging to a profession, with a feeling of responsibility for training the novices who sat in court to learn court procedures and attorney techniques. they invited these students to supper at the inns of court for the purpose of arguing about the day's cases. the inns of court evolved a scheme of legal education, which was oral and used disputations. thus they became educational institutions as well as clubs for practicing attorneys. the call to the bar of an inn was in effect a degree. to be an attorney one had to be educated and certified at the inns of court. they practice law full time. some are employed by the king. justices come to be recruited from among those who had passed their lives practicing law in court, instead of from the ecclesiastical orders. all attorneys were brought under the control of the justices. there are two types of attorney: one attorney appears in the place of his principal, who does not appear. the appointment of this attorney is an unusual and a solemn thing, only to be allowed on special grounds and with the proper formalities. for instance, a poor person may not be able to afford to travel to attend the royal court in person. the other one is the pleader-attorney, who accompanies his client to court and advocates his position with his knowledge of the law and his persuasiveness. in , the city of london made regulations for the admission of both types of attorneys to practice before the civic courts, and for their due control. in the king directed the justices to provide a certain number of attorneys and apprentices to follow the court, who should have the exclusive right of practicing before it. this begins the process which will make the attorney for legal business an "officer of the court" which has appointed him. - - - chapter - - - - the times: - - waves of the black death, named for the black spots on the body, swept over the nation. the black blotches were caused by extensive internal bleeding. the plague was carried in the blood of black rats and transmitted to humans by the bite of the rat flea, but this cause was unknown. the first wave of this plague, in , lasted for three years and desolated the nation by about one half the population in the towns and one third in the country. people tried to avoid the plague by flight. the agony and death of so many good people caused some to question their belief in god. also, it was hard to understand why priests who fled were less likely to die than priests who stayed with the dying to give them the last rites. legal and judicial, as well as other public business, ceased for two years, interrupted by the plague. thus begins a long period of disorganization, unrest, and social instability. customary ways were so upset that authority and tradition were no longer automatically accepted. fields lay waste and sheep and cattle wandered over the countryside. local courts could seldom be held. some monasteries in need of cash sold annuities to be paid in the form of food, drink, clothing, and lodging during the annuitant's life, and sometimes that of his widow also. guilds and rich men made contributions to the poor and ships with provisions were sent to various parts of the country for the relief of starving people. in london, many tradesmen and artisans formed parish fraternities which united people of all social levels and women on almost equal terms with men, in communal devotion and mutual support, such as help in resolving disputes, moral guidance, money when needed, and burial and masses. farm workers were so rare that they were able to demand wages at double or triple the pre-plague rate. the pre-plague had been - d. daily for masons, carpenters, plasterers, and tilers and d. for their laborers. these laborers could buy cheap loaves, gallons of ale, and a gallon of cheap wine or half a pair of shoes. prices did not go up nearly as much as wages. villeins relinquish their tenements, and deserted their manors, to get better wages elsewhere. they became nomadic, roaming from place to place, seeking day work for good wages where they could get it, and resorting to thievery on the highways or beggary where they could not. the robin hood legends were popular among them. in them, robin hood is pure outlaw and does not contribute money to the poor. nor does he court maid marion. they spread political songs among each other, such as: "to seek silver to the king, i my seed sold; wherefore my land lieth fallow and learneth to sleep. since they fetched my fair cattle in my fold; when i think of my old wealth, well nigh i weep. thus breedeth many beggars bold; and there wakeneth in the world dismay and woe, for as good is death anon as so for to toil." groups of armed men took lands, manors, goods, and women by force. the villeins agreed to assist each other in resisting by force their lords' efforts to return them to servitude. a statute of laborers passed in for wages to be set at the pre-plague rates was ineffectual. justices became afraid to administer the law. villeins, free peasants, and craftsmen joined together and learned to use the tactics of association and strikes against their employers. the office of justice of the peace was created for every county to deal with rioting and vagrants. cooperation by officials of other counties was mandated to deal with fugitives from its justice. the black death visited again in and in . the black death reduced the population from about million to about / million. it was to rise to about million by . when there were attempts to enforce the legal servitude of the villeins, they spread rhymes of their condition and need to revolt. a secret league, called the "great society" linked the centers of intrigue. a high poll tax, graduated from s. to d., that was to be raised for a war with france, touched off a spontaneous riot all over the nation in . this tax included people not taxed before, such as laborers, the village smith, and the village tiler. each area had its own specific grievances. there was no common political motive, except maladministration in general. in this peasants' revolt, mobs overran the counties around london. the upper classes fled to the woods. written records of the servitude of villeins were burned in their halls, which were also looted. title deeds of landlords were burned. rate rolls of general taxation were destroyed. prisoners were released from gaols. men connected with tax collection, law enforcement, attorneys, and alien merchants were beheaded. the chief justice was murdered while fleeing. the archbishop, who was a notoriously exploitive landlord, the chancellor, and the treasurer were murdered. severed heads were posted on london bridge. a mob took control of the king's empty bedchamber in the tower. the villeins demanded that service to a lord be by agreement instead of by servitude, a commutation of villein service for rents of a maximum of d. per acre yearly, abolition of a lord's right for their work on demand (e.g. just before a hail storm so only his crops were saved), and the right to hunt and fish. the sokemen protested having to use the lord's mill and having to attend his court. the revolt was suppressed and its leaders punished. the king issued proclamations forbidding unauthorized gatherings and ordering tenants of land to perform their customary services. the poll tax was dropped. for the future, the duty to deal with rioting and vagrants was given to royal justices, sheriffs, mayors, bailiffs, and constables as well as the justices of the peace. there was a high peace in each hundred and a petty constable in each parish. justices of the peace could swear in neighbors as unpaid special constables when disorder broke out. the sheriff was responsible for seeing that men of the lower classes were organized into groups of ten for police and surety purposes, and for holding of hundred and county courts, arresting suspects, guarding prisoners awaiting trial, carrying out the penalties adjudged by the courts, and collecting crown revenue through his bailiffs. royal writs were addressed to the sheriff. because many sheriffs had taken fines and ransoms for their own use, a term limit of one year was imposed. sheriffs, hundreders, and bailiffs had to have lands in the same counties or bailiwicks [so they could be held answerable to the king]. efforts were made to keep laborers at the plough and cart rather than learn a craft or entering and being educated by the church. the new colleges at the universities ceased to accept villeins as students. due to the shortage of labor, landlords' returns had decreased from about % to about %. but some found new methods of using land that were more profitable than the customary services of villeins who had holdings of land or the paid labor of practically free men who paid a money rent for land holdings. one method was to turn the land to sheep breeding. others leased their demesne land, which transferred the burden of getting laborers from the landlord to the lessee-tenant. the payment was called a "farm" and the tenant a "farmer". first, there were stock-and-land leases, in which both the land and everything required to cultivate it were let together. after years, when the farmers had acquired assets, there were pure land leases. landlords preferred to lease their land at will instead of for a term of years to prevent the tenant from depleting the soil with a few richer crops during the last years of his tenancy. the commutation of labor services into a money payment developed into a general commutation of virtually all services. lords in need of money gladly sold manumissions to their villeins. the lord and lady of some manors now ate with their family and entertained guests in a private parlor [from french word 'to speak"] or great chamber, where they could converse and which had its own fireplace. the great chamber was usually at the dais end of the great hall. the great hall had been too noisy for conversation and now was little used. there were also separate chambers or bed-sitting rooms for guests or members the family or household, in which one slept, received visitors, played games, and occasionally ate. some farmers achieved enough wealth to employ others as laborers on their farms. the laborers lived with their employer in his barn, sleeping on hay in the loft, or in mud huts outside the barn. the farmer's family lived at one end of the barn around an open fire. their possessions typically were: livestock, a chest, a trestle table, benches, stools, an iron or bronze cauldron and pots, brooms, wooden platters, wooden bowls, spoons, knives, wooden or leather jugs, a salt box, straw mattresses, wool blankets, linen towels, iron tools, and rush candles [used the pith of a rush reed for the wick]. those who could not afford rush candles could get a dim light by using a little grease in a shallow container, with a few twisted strands of linen thread afloat in it. the peasants ate dark bread and beans and drank water from springs. milk and cheese were a luxury for them. those who could not afford bread instead ate oat cakes made of pounded beans and bran, cheese, and cabbage. they also had leeks, onions, and peas as vegetables. some farmers could afford to have a wooden four-posted bedstead, hens, geese, pigs, a couple of cows, a couple of sheep, or two-plough oxen. july was the month when the divide between rich and poor became most apparent. the rich could survive on the contents of their barns, but the poor tried to survive by grinding up the coarsest of wheat bran and shriveled peas and beans to make some sort of bread. grain and bread prices soared during july. farming still occupied the vast majority of the population. town inhabitants and university students went into the fields to help with the harvest in the summer. parliament was suspended during the harvest. town people had more wealth than country people. most townspeople slept in nightgowns and nightcaps in beds with mattresses, blankets, linen sheets, and pillows. beds were made every morning. bathing was by sponging hot water from a basin over the body, sometimes with herbs in it, rinsing with a splash of warm water, and drying off with a towel. tubs used only for baths came into use. there were drapery rugs hung around beds, handheld mirrors of glass, and salt cellars. the first meal of the day was a light breakfast, which broke the fast that had lasted the night. meals were often prepared according to recipes from cook books which involved several preparation procedures using flour, eggs, sugar, cheese, and grated bread, rather than just simple seasoning. menus were put together with foods that tasted well together and served on plates in several courses. sheffield cutlery was world famous. table manners included not making sounds when eating, not playing with one's spoon or knife, not placing one's elbows on the table, keeping one's mouth clean with a napkin, and not being boisterous. there were courtesies such as saying "good morning" when meeting someone and not pointing one's finger at another person. king richard ii invented the handkerchief for sneezing and blowing one's nose. there were books on etiquette. cats were the object of superstition, but there was an ancient and honorable order of the men who stroke cats. new burgesses were recruited locally, usually from within a mile radius of town. most of the freemen of the larger boroughs, like canterbury and london, came from smaller boroughs. an incoming burgess was required to buy his right to trade either by way of a seven year apprenticeship or by payment of an entry fee. to qualify, he needed both a skill and social respectability. towns started acquiring from the king the right to vacant sites and other waste places, which previously was the lord's right. the perpetuality of towns was recognized by statutes of , which compared town-held property to church-held property. the right of london to pass ordinances was confirmed by charter. some towns had a town clerk, who was chief of full-time salaried officers. there was a guildhall to maintain, a weigh-house, prison, and other public buildings, municipal water supplies, wharves, cranes, quays, wash-houses, and public lavatories. after the experience of the black death, some sanitary measures were taken. the notorious offenders in matters of public hygiene in the towns, such as the butchers, the fishmongers, and the leather tanners were assigned specific localities where their trades would do least harm. the smiths and potters were excluded from the more densely populated areas because they were fire risks. in the town of salisbury, there was butcher row, ox row, fish row, ironmongers' row, wheelwrights' row, smiths' row, pot row, silver street, cheese market, and wool market. for water, most communities depended on rivers that ran near by or on public wells that were dug to reach the water underground. some towns had water public water supply systems. fresh water was brought into the town from a spring or pond above the town by wood or lead pipes or open conduits. sometimes tree trunks were hollowed out and tapered at the ends to fit into the funnel-shaped end of another. but they leaked a lot. in london, a conduit piped water underground to a lead tank, from which it was delivered to the public by means of pipes and brass taps in the stone framework. this was london's chief water supply. water carriers carried water in wooden devices on their backs to houses. the paving and proper drainage of the streets became a town concern. building contracts began specifying the provision of adequate cesspits for the privies at town houses, whether the latrines were built into the house or as an outhouse. also, in the better houses, there grew a practice of carting human and animal fecal matter at night to dung heaps outside the city walls. there was one public latrine in each ward and about twelve dung carts for the whole city. country manor houses had latrines on the ground floor and/or the basement level. stairwells between floors had narrow and winding steps. in london, the goldsmiths, merchant taylors [tailors], skinners, and girdlers bought royal charters, which recognized their power of self-government as a company and their power to enforce their standards, perhaps throughout the country. the goldsmiths, the mercers, and the saddlers became the first guilds to receive, in - , charters of incorporation, which gave them perpetual existence. as such they could hold land in "mortmain" [dead hand], thus depriving the king of rights that came to him on the death of a tenant-in-chief. they were authorized to bestow livery on their members and were called livery companies. the liverymen [freemen] of the trading companies elected london's representatives to parliament. in all towns, the organization of craft associations spread rapidly downwards through the trades and sought self-government. craft guilds were gaining much power relative to the old merchant guilds in governing the towns. the greater crafts such as the fishmongers, skinners, and the corders (made rope, canvas, and pitch) organized and ultimately were recognized by town authorities as self-governing craft guilds. the building trade guilds such as the tilers, carpenters, masons, and joiners, became important. masons were still itinerant, going to sites of churches, public buildings, or commanded by the king to work on castles. the guild was not necessarily associated with a specific product. for instance, a saddle and bridle were the result of work of four crafts: joiner (woodworker), painter, saddler (leather), and lorimer (metal trappings). in london in craft guilds included: baker, fishmonger (cut up and sold fish), fruitier, brewer, butcher, bird dealer, cook, apothecary (sold potions he had ground up), cutler (made knives and spoons), barber, tailor, shoemaker, glover (made gloves), skinner (sold furs), girdler (made girdles of cloth to wear around one's waist), pouchmaker, armorer, sheathmaker, weaver, fuller, painter, carpenter, joiner (woodworker who finished interior woodwork such as doors and made furniture), tiler, mason (cut stone for buildings), smith (made metal tools for stonemasons and builders), tallow chandler (made candles and sometimes soap from the fat and grease the housewife supplied), wax chandler (made candles), stirrup maker, spurrier (made spurs), and hosteler (innkeeper). however, the merchant guilds of the goldsmiths, vintners (sold wine), mercers (sold cloth), grocers, and drapers (finished and sold english cloth) were still strong. it was a long custom in london that freemen in one company could practice the trade of another company. there were paint mills and saw mills replacing human labor. there were apothecary shops and women surgeons. women who earned their own living by spinning were called "spinsters". some prices in london were: a hen pastry d., a capon pastry d., a roast pheasant d., a roast heron d., roast goose d., a hen d., a capon d., three roast thrushes d., ten larks d., ten finches d, and ten cooked eggs d. many of the guilds bought sites on which they built a chapel, which was later used as a secular meeting place. the guild officers commonly included an alderman, stewards, a dean, and a clerk, who were elected. the guild officers sat as a guild court to determine discipline for offenses such as false weights or measures or false workmanship or work and decided trade disputes. the brethren in guild fraternity were classified as masters, journeymen, or apprentices. they were expected to contribute to the support of the sick and impoverished in their fellowship. their code required social action such as ostracizing a man of the craft who was living in adultery until he mended his ways. the rules of the company of glovers were: . none but a freeman of the city shall make or sell gloves. . no glover may be admitted to the freedom of the city unless with the assent of the wardens of the trade. . no one shall entice away the servant of another. . if a servant in the trade makes away with his master's chattels to the value of d., the wardens shall make good the loss; and if the servant refuses to be judged by the wardens, he shall be taken before the mayor and aldermen. . no one may sell his goods by candlelight. . any false work found shall be taken before the mayor and aldermen by the wardens. . all things touching the trade within the city between those who are not freemen shall be forfeited. . journeymen shall be paid their present rate of wages. . persons who entice away journeymen glovers to make gloves in their own houses shall be brought before the mayor and aldermen. . any one of the trade who refuses to obey these regulations shall be brought before the mayor and aldermen. cordwainers [workers in soft cordovan leather from spain, especially shoes] of good repute petitioned the city of london in for ordinances on their trade as follows: "to the mayor and aldermen of the city of london pray the good folks of the trade of cordwainers of the same city, that it may please you to grant unto them the articles that follow, for the profit of the common people; that so, what is good and right may be done unto all manner of folks, for saving the honor of the city and lawfully governing the said trade. in the first place - that if any one of the trade shall sell to any person shoes of bazen [sheepskin tanned in oak or larch-bark] as being cordwain, or of calf-leather for ox-leather, in deceit of the common people, and to the scandal of the trade, he shall pay to the chamber of the guildhall, the first time that he shall be convicted thereof, forty pence; the second time, s. half a mark; and the third time the same, and further, at the discretion of the mayor and aldermen. also - that no one of the trade shall keep house within the franchise if he be not free [invested with the rights or privileges] of the city and one knowing his trade, and that no one shall be admitted to the freedom without the presence of the wardens of the trade bearing witness to his standing, on the pain aforesaid. also - if any one of the trade shall be found offending touching the trade, or rebellious against the wardens thereof, such person shall not make complaint to any one of another trade, by reason of the discord or dissension that may have arisen between them; but he shall be ruled by the good folks of his own trade. and if he shall differ from them as acting against right, then let the offense be adjudged upon before the mayor and aldermen; and if he be found rebellious against the ordinance, let him pay to the chamber the sum above mentioned. also - that no one of the trade shall entice or purloin the servant of another from the service of his master by paying him more than is ordained by the trade, on the pain aforesaid. also - that no one shall carry out of his house any wares connected with his trade for sale in market or elsewhere except only at a certain place situated between soperesland and the conduit; and that at a certain time of the day, that is to say, between prime [the first hour of the day] and noon. and that no shoes shall exceed the measure of seven inches, so that the wares may be surveyed by the good folks of the trade, because of the deceit upon the common people that might ensue and the scandal of the trade, on the pain aforesaid. also - that no one shall expose his wares openly for sale in market on sundays at any place, but only within his own dwelling to serve the common people, on the pain aforesaid. also - that if any one sells old shoes, he shall not mix new shoes among the old in deceit of the common people and to the scandal of the trade, on the pain aforesaid." smithfield was a field outside the city gates at which horses were sold and raced. in , the horse dealers and drovers petitioned for a tax on animals sold there to pay for cleaning the field. the city ordinance reads as follows: "on wednesday next after the feast of st. margaret the virgin came reputable men, the horse dealers and drovers, and delivered unto the mayor and aldermen a certain petition in these words: 'to the mayor, recorder, and aldermen show the dealers of smithfield, that is to say, the coursers and drovers, that for the amendment of the said field they have granted and assented among them that for the term of three years next ensuing after the date of this petition for every horse sold in the said field there shall be paid one penny, for every ox and cow one halfpenny, for every eight sheep one penny, and for every swine one penny by the seller and the same by the purchaser who buys the same for resale.` afterwards, on the eleventh day of august in the same year, adam fernham, keeper of the gaol at newgate, hugh, averelle, bailiff of smithfield, and william godhewe, weaver, were chosen and sworn faithfully to collect and receive the said pennies in form aforesaid and to clean the field of smithfield from time to time during such term of three years when necessary." many london houses were being made from stone and timber and even brick and timber, instead of just timber and mud. however, chimneys were still a luxury of the rich. they were made of stone, tile, or plaster. there were windows of glass and a guild of glaziers was chartered by the king. a typical merchant's house had a cellar; a ground floor with a shop and storage space; a first floor with a parlor to receive guests, a spacious hall for dining, and perhaps a kitchen; and at the top, a large family bedroom and a servant's room. many single-roomed houses added a second-floor room for sleeping, which was approached by a wooden or stone staircase from the outside. their goods were displayed on a booth outside the door of the house or hung in the windows. they were stored at night in the cellar. over the booths swung huge signs, which had to be nine feet above street level to allow a man on horseback to ride underneath. there were no sidewalks. street repair work for wages was supervised by a stone master. the streets sloped down from the middle so that the filth of the streets would run down the sides of the road. there were many wood chips in the streets due to cutting up of firewood before taking it indoors. people often threw the rubbish from their houses onto the street although they were supposed to cart it outside the city walls and to clean the frontage of their houses once a week. dustmen scavenged through the rubbish on the streets. pigs and geese were not longer allowed to run at large in the streets, but had to be fed at home. there were other city rules on building, public order, the use of fountains, precautions against fire, trading rights in various districts, closing time of taverns, and when refuse could be thrown into the streets, e.g. nighttime. aldermen were constantly making rounds to test measures and weights, wine cups, the height of tavern signs, and the mesh of the fishing nets, which had to be at least two inches wide. they saw that the taverns were shut when curfew was rung and arrested anyone on the street after curfew who had a weapon, for no one with a sword was allowed on the streets unless he was some great lord or other substantial person of good reputation. wards provided citizens to guard the gates in their respective neighborhood and keep its key. the city was so dense that nuisance was a common action brought in court, for instance, vegetable vendors near a church obstructing passageway on the street or plumbers melting their solder with a lower than usual shaft of the furnace so smoke was inhaled by people nearby. crime in london was rare. murder, burglary, highway robbery, and gross theft were punishable by hanging. forgery, fraud, was punishable by the placement in the pillory or stocks or by imprisonment. perjury was punished by confession from a high stool for the first offense, and the pillory for the second. slander and telling lies were punished by the pillory and wearing a whetstone around one's neck. there was an ordinance passed against prostitutes in . london as well as other port towns had not only prostitutes, but syphilis. prominent londoners sought to elevate their social position by having their family marry into rural landholders of position. for poor boys with talent, the main routes for advancement were the church, the law, and positions in great households. many master freemasons, who carved freestone or finely grained sandstone and limestone artistically with mallet and chisel, left the country for better wages after their wages were fixed by statute. the curvilinear gothic style of architecture was replaced by the perpendicular style, which was simpler and cheaper to build. church steeples now had clocks on them with dials and hands to supplement the church bell ringing on the hour. alabaster was often used for sepulchral monuments instead of metal or stone. with it, closer portraiture could be achieved. in the s and s the london population suffered from tuberculosis, typhus, influenza, leprosy, dysentery, smallpox, diphtheria, measles, heart disease, fevers, coughs, cramps, catarrhs and cataracts, scabs, boils, tumors, and "burning agues". there were also many deaths by fires, burning by candles near straw beds when drunk, falling downstairs when drunk, and drowning in the river or wells. children were often crushed by carts, trampled by horses, or mauled by pigs. towns recognized surgery as a livelihood subject to admission and oath to serve the social good. master surgeons were admitted to practice in in london in full husting before the mayor and the aldermen and swore to: faithfully serve the people in undertaking their cures, take reasonably from them, faithfully follow their calling, present to the said mayor and aldermen the defaults of others undertaking, so often as should be necessary; to be ready, at all times when they should be warned, to attend the maimed or wounded and others, to give truthful information to the officers of the city as to such maimed, wounded, or others whether they be in peril of death or not, and to faithfully do all other things touching their calling. some young girls of good families were boarded at nunneries to be taught there. some upper class widows retired there. only women were allowed to be present at a birth, at which they spread the knowledge of midwifery. as usual, many women died giving birth. various ways to prevent pregnancy were tried. it was believed that a baby grew from a seed of the father planted in the woman's body. infant mortality was especially high in boroughs and burgess family lines usually died out. a three-generation family span was exceptional in the towns, despite family wealth. children's sweets included gingerbread and peppermint drops. after the plague, gentlemen no longer had their children learn to speak norman. the grammar schools taught in english instead of norman as of . bishops began to preach in english. english became the official language of parliament, in , and the courts, replacing norman and latin. a will in in which a wealthy citizen arranges for one son to become a attorney and the other a merchant: "will of william de tonge, citizen of london: one hundred marks [ , s.] each to my two sons. and i will that my said two sons shall live upon the profits of the money bequeathed to them above until the age of twenty years. and if my said two sons be well learned in grammar and adorned with good manners, which shall be known at the end of twenty years, and the elder son wish to practice common law, and if it is known that he would spend his time well in that faculty, i will that over and above the profit of the said one hundred marks he shall have yearly from my rents for the term of seven years five marks [ s.]. and if he should waste his time aforesaid, or if he should marry foolishly and unsuitably, i will that he receive nothing more of the said five marks. and if younger son wishes to attend the university of oxford or to establish himself well in the mystery of a merchant after the age of twenty years, and [if] there be knowledge of his praiseworthy progress in his faculty or his carefulness in trading ... i will that he shall receive five marks yearly in the manner described above for his maintenance, over and above the profit of the said one hundred marks to him bequeathed, for the space of seven years; and if he behave himself otherwise, i will that thereupon he be excluded from the said five marks. and in case the said bequest of marks [ , s.] to him and his brother shall be annulled so that he shall have nothing therefrom ... then the said marks shall be spent upon all the yearly chaplains who can be had to celebrate divine service in the church of all hallows for my soul." england was still an agricultural rather than a manufacturing country. imported were cloth, silks, linen, velvets, furs, glass, wines, candles, millstones, amber, iron, and mercury. exported were wool, leather, lead, tin, and alabaster for sculpturing. merchant adventurers came to manufacture cloth good enough for export and began to buy up raw wool in such quantity that its export declined. they took their cloth abroad to sell, personally or by agents. an oxford theologian and preacher, john wyclif, voiced the popular resentment of the materialism of the church, benefit of clergy, immorality of priests, and the selling of indulgences and pardons. encouraged by the king, he argued against the supremacy of the papal law over the king's courts and against payments to the papacy. he opined that the church had no power to excommunicate. the friars had become mere beggars and the church was still wealthy. he proposed that all goods should be held in common by the righteous and that the church should hold no property but be entirely spiritual. he believed that people should rely on their individual consciences. he thought that the bible should be available to people who could read english so that the people could have a direct access to god without priests or the pope. towards this end, he translated it from latin into english in . his preachers spread his views throughout the country. the church then possessed about one-third of the land of the nation. william of ockham, an englishman educated at oxford and teaching theology in paris, taught that the primary form of knowledge came from experience gained through the senses and that god might cause a person to think that he has intuitive knowledge of an existent object when there is in fact no such object. most great lords were literate. many stories described good men, who set an example to be followed, and bad men, whose habits were to be avoided. stories were written about pilgrimage vacations of ordinary people to religious sites in england. will langland's poem "the vision of william concerning piers plowman" portrays a pilgrimage of common people to the shrine of truth led by a virtuous laborer. mystics wrote practical advice with transcendental teaching, for instance "scale of perfection" attributed to walter hilton and "cloud of unknowing". richard rolle wrote about spiritual matters, probably the "prick of conscience". richard de bury wrote "philobiblon" about book lovers. jean froissart wrote the "chronicles" on knights. courtly ideals were expressed in "sir gawaine and the grene knyght", wherein the adventures of the hero, an arthur knight, are allegorical in the struggle against the world, the flesh, and the devil ( ). "pearl" eulogized all that is pure and innocent on the event of the death of a two year old child. geoffrey chaucer was a squire and diplomat of the king. his "tales of the canterbury pilgrims" portrayed characters of every social class, including the knight with his squire, abbot, prioress, nun, priest, monk, friar, poor parson of the country, summoner (who enforced the jurisdiction and levied the dues of the church courts), pardoner (sold pardons from the pope), scholar, attorney, doctor, merchant, sailor, franklin, yeoman, haberdasher, tapestry- maker, ploughman, cook, weaver, dyer, upholsterer, miller, reeve, carpenter. there were chaucer stories about a beautiful and virtuous wife disliked by her mother-in-law, the difficulty of marriage between people of different religions, the hatred of a poor person by his brother and his neighbor, rich merchants who visited other kingdoms, the importance of a man himself following the rules he sets for other people's behavior, the spite of a man for a woman who rejected him, the relative lack of enthusiasm of a wife for sex as compared to her husband, a mother giving up her own comfort for that of her child, the revenge killing of a murderer by the dead man's friends, the joy of seeing a loved one after years of separation, that life is more sad than happy, that lost money can be retrieved, but time lost is lost forever. other stories in the canterbury tales were about two men who did not remain friends after they fell in love with the same woman, about a child who preferred to learn from an older child than from his schoolteacher, about a wife who convinced her husband not to avenge her beating for the sake of peace, about a man who woke up from bad dreams full of fear, about a man wanting to marry a beautiful woman but later realizing a plain wife would not be pursued by other men, about a man who drank so much wine that he lost his mental and physical powers, about a woman who married for money instead of love, about a man who said something in frustration which he didn't mean, about a person brought up in poverty who endured adversity better than one brought up in wealth, about a wife who was loving and wise, about a good marriage being more valuable than money, about a virgin who committed suicide rather than be raped, about a wife persuaded to adultery by a man who said he would otherwise kill himself, about three men who found a pile of gold and murdered each other to take it all, about an angry man who wanted to kill, about a malicious man who had joy in seeing other men in trouble and misfortune, about a man whose face turned red in shame, about a wife expecting to have half of what her husband owned. paper supplemented parchment, so there were more books. political songs and poems were written about the evil times of king edward ii, the military triumphs of king edward iii, and the complaints of the poor against their oppressors, such as "song of the husbandman". john gower wrote moralizing poems on the villein's revolt, the sins of the clergy and attorneys, and the bad rule of king richard ii, who in succeeded edward iii. robin hood ballads were popular. the minstrel, who was a honorable person, replaced the troubadour of older times. there were many colleges at oxford and cambridge due to the prohibition of gifts to the church. laymen instead of ecclesiastics were appointed as chancellor. the masters at oxford got rid of ecclesiastical supervision by a bishop and archdeacon by . one could be admitted as a student at age thirteen. the rate of maintenance for a student was d. weekly. a bachelor of arts degree was granted after four years of study and an oral exam. required reading in for the bachelor's degree was the new logic of aristotle ("prior and posterior analytics" e.g. on syllogistic logic and deduction, the "topics", or the "sophistical refutations", e.g. logical fallacies such as from 'all a are b' to 'all b are a'), and a selection from these aristotle works on physics: "of heaven and earth", "on the soul", "of meteors", "of birth and decay", or "of feeling and what is felt" with "of memory and recollection" and "of sleep and waking", or "of the movement of animals" with "of minor points in natural history". a master of arts degree could be awarded after three more years of study and teaching. a doctorate degrees in theology required ten more years of study. a doctorate in civil or canon law required eight more years. a man with a degree in canon law who wanted to practice in a certain bishop's court had to first satisfy this bishop of his competence. another source of legal learning was in london, where the guilds gave rise to the inns of court. they used the register of writs, the case law of the year books, and disputation to teach their students. for a doctorate in medicine from oxford or cambridge, five more years plus two years of practice were required. surgery was not taught because it was considered manual labor, and there was some feeling that it was a sacrilege and dishonorable. urinalysis and pulse beat were used for diagnosis. epilepsy and apoplexy were understood as spasms inside the head. it was known what substances served as laxatives and diuretics. teeth were extracted, eye cataracts were removed with a silver needle, and skin from the arm was grafted onto a mutilated face. englishmen who had collected books on philosophy, medicine, astronomy, and history and literature books from the continent gave their collections to the universities, which started their libraries. marco polo's discoveries on his journey to china were known. the requirements of elementary and higher studies were adjusted in and began the public school system. william of wykeham's school, st. mary college of winchester in oxford was the prototype. the curriculum was civil law, canon law, medicine, with astronomical instruments that students made, theology, and the arts. the arts textbooks were still grammar, logic, donatus, and aristotle. many laymen were literate, for instance country gentry, merchants, and craftsmen. laymen instead of clerics were now appointed to the great offices of state. parliament met about twice a year and lasted from two weeks to several months. there was a well-defined group of about fifty barons and a few spiritual peers who were always summoned to parliament and who composed a house of lords. "peer" now meant a member of the house of lords. all peers had the right to approach the king with advice. the baron peers reasoned that the custom of regular attendance was a right that should be inherited by the eldest son, or by a female heir, if there were no male heirs. however, the theory of nobility by blood as conveying political privilege had no legal recognition. no female could attend parliament; the husband of a baroness attended parliament in her stead. edward iii and richard ii created new peers with various titles of dignity, such as duke and marquess, which were above barons and earls. the dukes and marquesses were identified with a territorial designation such as an english county or county town. whenever a parliament was assembled the commons were present. the commons was composed of representatives from boroughs and counties. each new parliament required an election of representatives. the members of the commons were generally the most prominent and powerful economic and political figures of the county and were repeatedly reelected. the electors were usually influenced by the sheriff or a powerful lord who suggested suitable men. the wealthy merchants typically represented the boroughs and paid much of the taxes. under edward iii, the commons took a leading part in the granting of taxes and the presentation of petitions and became a permanent and distinct body, the house of commons, with a spokesman or "speaker", chosen by the crown, and a clerk. the speaker came to be an intermediary between the commons and the king and between the commons and the lords. a clerk of parliament registered its acts and sat with the lords. a clerk of the crown superintended the issue of writs and the receipt of the returns and attested the signature of the king on statutes. it became a regular practice for the chancellor to open parliament with an opportunity to present petitions after his opening speech. the king then referred them to certain peers and justices, who decided to which court, or parliament, they should be sent. during the s, the number of barons going to parliament gradually decreased. at the parliament, ("the good parliament") the commons, which formerly had only consented to taxes, took political action by complaining that the king's councilors had grown rich by war profiteering at the cost of impoverishing the nation and the people were too poor to endure any more taxation for the war and held a hearing on financial malfeasance and dishonesty of two ministers. the chamberlain had extorted enormous sums, had intercepted fines meant for the king's treasury, and had sold a castle to the enemy. the steward had bought debts of the king's. the house of lords, the high court of parliament, found the charges proved and dismissed them permanently from office. this established the constitutional means for impeachment and prosecution by the commons and removal by the house of lords of ministers. by this process, there could be no royal intimidation, as there could be in the ordinary courts. the commons demanded that its members be elected by county citizens rather than appointed by the sheriff. the roles of parliament and the king's council are starting to differentiate into legislative and executive, respectively. the legislative function is lawmaking, and the executive is regulation-making that refines and effectuates the laws of parliament. but the legislative, executive, and judicial authorities have not as yet become so completely separated that they cannot on occasion work together. sheriffs dealt directly with the king instead of through an earl. >from to , resistance was an ordinary remedy for political disagreements. if a popular leader raised his standard in a popular cause, an irregular army could be assembled in a day. (there was no regular army, since england was protected by the sea from invasion.) so misgovernment by a king would be quickly restrained. society recovered quickly from conflict and civil war because the national wealth consisted chiefly in flocks and herds and in the simple buildings inhabited by the people. in a week after armed resistance, the agricultural worker was driving his team. there was little furniture, stock of shops, manufactured goods, or machinery that could be destroyed. to support a war with france in , the staple was reinstated by statute of after an experiment without it in which profits of a staple went to staples outside the nation. wool exports were inspected for quality and taxed through his officials only at the designated staple ports. these officials included collectors, controllers, searchers [inspectors], surveyors, clerks, weighers, and crane-keepers. wool, woolfells, leather, and lead sold for export had to go through the staple town. the penalty was forfeiture of lands, tenements, goods, and chattel. (the staple statute remained basically unchanged for the next years.) the mayor and constables of the staple were elected annually by the native and foreign merchants of the place. the mayor gave validity to contracts for a set fee, by seal of his office. he and the constables had jurisdiction over all persons and things touching the staple, which was regulated by the law merchant in all matters of contract, covenant, debt, and felonies against foreign merchants. a hue and cry was required to be raised and followed for anyone taking a cart of merchandise or slaying a merchant, denizen [resident alien] or alien, or the town would answer for the robbery and damage done. in , calais, a continental town held by the english, became the staple town for lead, tin, cloth, and wool and was placed under a group of london capitalists: the merchants of the staple. all exports of these had to pass through calais, where customs tax was collected. guns and cannon were common by . in the s and s, the king relied on mercenaries hired directly or by contract with his great nobles for foreign wars. the king reimbursed the contractors with the profits of war, such as the ransoms paid by the families of rich prisoners. the fighting men supplemented their pay by plunder. featherbeds and blooded horses were favorite spoils of war brought back to england from the continent. as new techniques with footmen came into being, the footmen became the core of the army and the knightly abilities of the feudal tenants-in-chief became less valuable. many lords got men to fight with them by livery and maintenance employment agreements such as this one of : "bordeaux, february . this indenture, made between our lord king john [of gaunt, of castile, etc.] of the one part and symkyn molyneux, esquire, of the other part, witnesses that the said symkyn is retained and will remain with our said lord for peace and for war for the term of his life, as follows: that is to say, the said symkyn shall be bound to serve our said lord as well in time of peace as of war in whatsoever parts it shall please our said lord, well and fitly arrayed. and he shall be boarded as well in time of peace as of war. and he shall take for his fees by the year, as well in time of peace as of war, ten marks sterling [ s.] from the issues of the duchy of lancaster by the hands of the receiver there who now is or shall be in time to come, at the terms of easter and michaelmas by even portions yearly for the whole of his life. and, moreover, our lord has granted to him by the year in time of war five marks sterling [ s.] by the hands of the treasurer of war for the time being. and his year of war shall begin the day when he shall move from his inn towards our said lord by letters which shall be sent to him thereof, and thenceforward he shall take wages coming and returning by reasonable daily [payments] and he shall have fitting freightage for him, his men, horses, and other harness within reason, and in respect of his war horses taken and lost in the service of our said lord, and also in respect to prisoners and other profits of war taken or gained by him or any of his men, the said our lord will do to him as to other squires of his rank." forecastles and stern castles on ships were lower and broader. underneath them were cabins. the english ship was still single masted with a single square sail. a fleet was formed with over ships selected by the english admirals acting for the king at the ports. men were seized and pressed into service and criminals were pardoned from crimes to become sailors in the fleet, which was led by the king's ship. they used the superior longbow against the french sailor's crossbow. in , the tower of london had four mounted fortress cannon and the port of dover had six. the war's disruption of shipping caused trade to decline. but the better policing of the narrow seas made piracy almost disappear. english merchants may carry their merchandise in foreign ships if there are no english ships available. anyone may ship or carry grain out of the nation, except to enemies, after paying duties. but the council may restrain this passage when necessary for the good of the nation. any merchant, privy or stranger, who was robbed of goods on the sea or lost his ship by tempest or other misfortune on the sea banks, his goods coming to shore could not be declared wreck, but were to be delivered to the merchant after he proves ownership in court by his marks on the goods or by good and lawful merchants. all stakes and obstacles set up in rivers impeding the passage of boats shall be removed. waterpower was replacing foot power in driving the mills where cloth was cleaned and fulled. a boundary dispute between two barons resulted in the first true survey map. nine cow pastures were divided by a boundary marked by a shield on a pole which the commission of true and sworn men had set up. king richard ii, an irresponsible sovereign, asserted an absolute supremacy of the king over parliament and declared certain statutes which he claimed to have been forced on him to be revoked. he interfered with county elections of knights to parliament by directing sheriffs to return certain named persons. he wanted to dispense altogether with parliament and instead have a committee of representatives. he claimed that the goods of his subjects were his own and illegally taxed the counties. there were many disputes as to who should be his ministers. high treason was extended to include making a riot and rumor, compassing or purposing to depose the king, revoking one's homage or liege to the king, or attempting to repeal a statute. when henry bolingbroke reported to parliament that another lord had cast doubt on the king's trustworthiness, a duel between them was arranged. but richard, probably fearing the gain of power of the lord who won, instead exiled the two lords. he took possession of the lancaster estates to which henry was heir and forbade this inheritance. this made all propertied men anxious and they united behind bolingbroke in taking up arms against richard. richard was not a warrior king and offered to resign the crown. the "merciless parliament" of swept out richard's friends. parliament deposed and imprisoned richard. it revoked the extensions to the definition of high treason. it elected bolingbroke, who claimed to be a descendant of henry iii, to be king henry iv. this action established clearly that royal decrees were subordinate to parliamentary statutes, that parliament was the ultimate legal arbiter of the realm, and that the consent of parliament was necessary in determining kingship. the house of commons became very powerful. it was responsible for the major part of legislation. it's members began to assert the privilege of free speech. that is, they wanted to discuss other matters than what was on the king's agenda and they opposed punishment for what they said unless it was treasonable. henry iv agreed to their request not to consider reports of proceedings unless they came to him through official channels. - the law - after the black death of these statutes were enacted: high treason was defined by statute in as levying war against the king, aiding the king's enemies, compassing or imagining the death of the king, queen, or their eldest son and heir, or violating the queen or the eldest unmarried daughter or the wife of the king's eldest son and heir; making or knowingly using counterfeits of the king's great or privy seal or coinage; or slaying the chancellor, treasurer, or any justice in the exercise of their duty. the penalty was forfeit of life and lands. petit treason was defined by statute and included a servant slaying his master, a wife her husband, or a man his lord, to whom was owed faith and obedience. no one shall tell false news or lies about prelates, dukes, earls, barons, and other nobles and great men or the chancellor, treasurer, a justice, clerk of the privy seal, steward of the king's house whereby debates and discords might arise between these lords or between the lords and the commons. cases shall be tried by the king's council, which included the chancellor, treasurer, and chief justices. preachers drawing crowds by ingenious sermons and inciting them to riot shall be arrested by sheriffs and tried by the ecclesiastical court. any stranger passing at night of whom any have suspicion shall be arrested and taken to the sheriff. no man shall ride with a spear, upon pain of forfeiting it. no servant of agriculture or laborer shall carry any sword or dagger, or else forfeit it, except in time of war in defense of the nation. he may carry bow and arrow [for practice] on sundays and holy days, when he should not play games such as tennis, football, or dice. no one may enter another's land and tenements by strong hand nor with a mob, upon pain of imprisonment and ransom at the king's will. charters, releases, obligations, [quitclaim deeds] and other deeds burnt or destroyed in uprisings shall be reissued without fee, after trial by the king and his council. manumissions, obligations, releases and other bonds and feoffments in land made by force, coercion or duress during mob uprisings are void. men who rape and women consenting after a rape shall lose their inheritance and dower and joint feoffments. the husbands, or father or next of kin of such women may sue the rapist by inquisition, but not by trial by combat. the penalty is loss of life and member. the statute of laborers of required all workers, from tailors to ploughmen, to work only at pre-plague wage rates and forced the vagrant peasant to work for anyone who claimed him or her. it also encouraged longer terms of employment as in the past rather than for a day at a time. statutory price controls on food limited profits to reasonable ones according to the distance of the supply. later, wages were determined in each county by justices of the peace according to the dearth of victuals while allowing a victualer a reasonable profit and a penalty was specified as paying the value of the excess wages given or received for the first offense, double this for the second offense, and treble this or forty days imprisonment for the third offense. a fugitive laborer will be outlawed, and when found, shall be burnt in the forehead with the letter "f" for falsity. children who labored at the plough and cart or other agriculture shall continue in that labor and may not go into a craft. a statute of designed to stop hoarding various types of merchandise until a type became scarce so to sell it at high prices, required merchants to deal in only one type of merchandise. it also required craftsmen to work in only one craft as before (except women who traditionally did several types of handiwork). this was repealed a year later. where scarcity has made the price of poultry high, it shall be lowered to d. for a young capon, d. for an old capon or a goose, d. for a hen, and d. for a pullet. the fares for passage on boats on fresh waters and from dover to the continent shall remain at their old rate. any merchant selling at a fair after it has ended will forfeit to the king twice the value of that sold. anyone finding and proving cloth contrary to the assize of cloth shall have one-third of it for his labor. no shoemaker nor cordwainer shall tan their leather and no tanner shall make shoes, in order that tanning not be false or poorly done. all denizen [foreigner permitted to reside in the realm with certain rights and privileges] and alien merchants may buy and sell goods and merchandise, in gross, in any part of the country, despite town charters or franchises, to anyone except an enemy of the king. they may also sell small wares: victuals, fur, silk, coverchiefs [an item of woman's apparel], silver wire, and gold wire in retail, but not cloth or wine. they must sell their goods within three months of arrival. any alien bringing goods to the nation to sell must buy goods of the nation to the value of at least one-half that of his merchandise sold. these merchants must engage in no collusion to lower the price of merchandise bought, take merchandise bought to the staple, and promise to hold no staple beyond the sea for the same merchandise. an amendment disallowed denizens from taking wools, leather, woolfells, or lead for export, but only strangers. towns failing to bring disturbers of this right to justice shall forfeit their franchise to the king and pay double damages to the merchant. the disturber shall be imprisoned for a year. cloth may not be tacked nor folded for sale to merchants unless they are opened to the buyers for inspection, for instance for concealed inferior wool. workers, weavers, and fullers shall put their seals to every cloth. and anyone could bring his own wools, woolfells, leather, and lead to the staple to sell without being compelled to sell them in the country. special streets or warehouses were appointed with warehouse rent fixed by the mayor and constables with four of the principal inhabitants. customs duties were regulated and machinery provided for their collection. no one was to forestall or regrate, that is, buy at one price and sell at a higher price in the same locale. forestallers were those who bought raw material on its way to market. regrators were those who tried to create a "corner" in the article in the market itself. imported cloth shall be inspected by the king's officials for non- standard measurements or defects [despite town franchises]. no one shall leave the nation except at designated ports, on pain of one year's imprisonment. social distinctions by attire were mandated by statute of . a servant, his wife, son, or daughter, shall only wear cloth worth no more than s. and shall not have more than one dish of meat or fish a day. carters, ploughmen, drivers of the plough, oxherds, cowherds, shepherds, and all other people owning less than s. of goods and chattels shall only wear blanket and russet worth no more than d. and girdles of linen according to their estate. craftsmen and free peasants shall only wear cloth worth no more than s. esquires and gentlemen below the rank of knight with no land nor rent over , s. a year shall only wear cloth worth no more than s., no gold, silver, stone, fur, or the color purple. esquires with land up to , s. per year may wear s. cloth, cloth of silk and silver, miniver [grey squirrel] fur and stones, except stones on the head. merchants, citizens, burgesses, artificers, and people of handicraft having goods and chattels worth , s. shall wear cloth the same value as that worn by esquires and gentlemen with land or rent within , s. per year. the same merchants and burgesses with goods and chattels worth , s. and esquires and gentlemen with land or rent within s. per year may not wear gold cloth, miniver fur, ermine [white] fur, or embroidered stones. a knight with land or rents within , s. yearly are limited to cloth of s., but his wife may wear a stone on her head. knights and ladies with land or rents within , s. to , s. yearly may not wear fur of ermine or of letuse, but may wear gold, and such ladies may wear pearls as well as stones on their heads. the penalty is forfeiture of such apparel. this statute is necessary because of "outrageous and excessive apparel of diverse persons against their estate and degree, to the great destruction and impoverishment of all the land". if anyone finds a hawk [used to hunt birds, ducks, and pheasant] that a lord has lost, he must take it to the sheriff for keeping for the lord to claim. if there is no claim after four months, the finder may have it only if he is a gentleman. if one steals a hawk from a lord or conceals from him the fact that it has been found, he shall pay the price of the hawk and be imprisoned for two years. no laborer or any other man who does not have lands and tenements of the value of s. per year shall keep a greyhound [or other hound or dog] to hunt, nor shall they use nets or cords or other devices to take [deer, hare, rabbits, nor other gentlemen's game], upon pain of one year imprisonment. (the rabbit had been introduced by the normans.) this law was primarily intended to stop the meetings of laborers and artificers. no man shall eat more than two courses of meat or fish in his house or elsewhere, except at festivals, when three are allowed [because great men ate costly meats to excess and the lesser people were thereby impoverished]. no one may export silver, whether bullion or coinage, or wine except foreign merchants may carry back the portion of their money not used to buy english commodities. the penalty for bringing false or counterfeit money into the nation is loss of life and member. an assigned searcher [inspector] for coinage of the nation on the sea passing out of the nation or bad money in the nation shall have one third of it. no foreign money may be used in the nation. each goldsmith shall have an identifying mark, which shall be placed on his vessel or work only after inspection by the king's surveyor. no one shall give anything to a beggar who is capable of working. vagrants begging in london were banned by this ordinance: "forasmuch as many men and women, and others, of divers counties, who might work, to the help of the common people, have betaken themselves from out of their own country to the city of london and do go about begging there so as to have their own ease and repose, not wishing to labor or work for their sustenance, to the great damage of the common people; and also do waste divers alms which would otherwise be given to many poor folks, such as lepers, blind, halt, and persons oppressed with old age and divers other maladies, to the destruction of the support of the same - we do command on behalf of our lord the king, whom may god preserve and bless, that all those who go about begging in the said city and who are able to labor and work for the profit of the common people shall quit the said city between now and monday next ensuing. and if any such shall be found begging after the day aforesaid, the same shall be taken and put in the stocks on cornhill for half a day the first time, and the second time he shall remain in the stocks one whole day, and the third time he shall be taken and shall remain in prison for forty days and shall then forswear the said city forever. and every constable and the beadle of every ward of the said city shall be empowered to arrest such manner of folks and to put them in the stocks in manner aforesaid." the hundred year cry to "let the king live on his own" found fruition in a statute requiring consent of the parliament before any commission of array for militia could be taken and a statute requiring purchases of goods and means of conveyance for the king and his household to be made only by agreement with the seller and with payment to him before the king traveled on, instead of at the low prices determined unilaterally by the king's purveyor. every man who has wood within the forest may take houseboot [right to take wood for repair of one's house] and heyboot [right to take material for the maintenance of hedges and fences, and the making of farming utensils] in his wood without being arrested so long as it take such within the view of the foresters. no fecal matter, dung, garbage, or entrails of animals killed shall be put into ditches or rivers or other waters, so that maladies and diseases will not be caused by corrupted and infected air. the penalty is s. to the king after trial by the chancellor. gifts or alienation of land to guilds, fraternities, or towns are forbidden. instead, it escheats to its lord, or in his default, to the king. no man will be charged to go out of his county to do military service except in case of an enemy invasion of the nation. men who chose to go into the king's service outside the nation shall be paid wages by the king until their return. admiralty law came into being when ancient naval manners and customs were written down as the "black book of the admiralty". this included the organization of the fleet under the admiral, sea-maneuver rules such as not laying anchor until the admiral's ship had, engagement rules, and the distribution of captured goods: one-fourth to the vessel owner, one-fourth to the king if the seamen were paid by the king's wages, and the rest divided among the crew and admiral. stealing a boat or an anchor holding a boat was punishable by hanging. stealing an oar or an anchor was punishable by forty days imprisonment for the first offense, six months imprisonment for the second, and hanging for the third. desertion was punishable by loss of double the amount of wages earned and imprisonment for one year. cases were tried by jury in the admiral's court. wines, vinegar, oil and honey imported shall be gauged by the king's appointees. - judicial procedure - the office of justice of the peace was developed and filled by knights, esquires and gentlemen who were closely associated with the magnates. there was no salary nor any requirement of knowledge of the law. they were to pursue, restrain, arrest, imprison, try, and duly punish felons, trespassers, and rioters according to the law. they were expected to arrest vagrants who would not work and imprison them until sureties for good behavior was found for them. they also were empowered to inspect weights and measures. trespass included forcible offenses of breaking of a fence enclosing private property, assault and battery, false imprisonment, and taking away goods and chattels. the action of trespass was replacing private suits for murder and for personal injury. pardons may be given only for slaying another in one's own defense or by misfortune [accident], and not for slaying by lying in wait, assault, or malice aforethought. justices of assize, sheriffs, and justices of the peace and mayors shall have power to inquire of all vagabonds and compel them to find surety of their good bearing or be imprisoned. a reversioner shall be received in court to defend his right when a tenant for a term of life, tenant in dower, or by the law of england, or in tail after possibility of issue extinct are sued in court for the land, so as to prevent collusion by the demandants. a person in debt may not avoid his creditors by giving his tenements or chattels to his friends in collusion to have the profits at their will. where there was a garnishment given touching a plea of land, a writ of deceit is also maintainable. actions of debt will be heard only in the county where the contract was made. the action of debt includes enforcement of contracts executed or under seal, e.g. rent due on a lease, hire of an archer, contract of sale or repair of an item. thus there is a growing connection between the actions of debt and contract. executors have an action for trespass to their testators' goods and chattels in like manner as did the testator when alive. if a man dies intestate, his goods shall be administered by his next and most lawful friends appointed. such administrators shall have the same powers and duties as executors and be accountable as are executors to the ecclesiastical court. children born to english parents in parts beyond the sea may inherit from their ancestors in the same manner as those born in the nation. a person grieved by a false oath in a town court proceeding may appeal to the king's bench or common pleas, regardless of any town franchise. the court of the king's bench worked independently of the king. it was exceptional to find the king sitting on his bench. it became confined to the established common law. decisions of the common law courts are appealable to the house of lords. the king's council members who are not peers, in particular the justices and the masters of the chancery, are summoned by the house of lords only as mere assistants. parliament can change the common law by statute. the right of a peer to be tried for capital crimes by a court composed of his peers was established. there is a widespread belief that all the peers are by right the king's councilors. no attorney may practice law and also be a justice of assize. no justice may take any gift except from the king nor give counsel to any litigant before him. in , there was another statute against maintainers, instigators, barretors, procurers, and embracers of quarrels and inquests because of great and outrageous oppressions of parties in court. because this encouraged maintenance by the retinue of lords with fees, robes, and other liveries, such maintainers were to be put out of their lords' service, and could not be retained by another lord. no one was to give livery to anyone else, except household members and those retained for life for peace or for war. justices of the peace were authorized to inquire about yeomen, or other of lower estate than squire, bearing livery of any lord. whereas it is contained in the magna carta that none shall be imprisoned nor put out of his freehold, nor of his franchises nor free custom, unless it be by the law of the land; it is established that from henceforth none shall be taken by petition or suggestion made to the king unless by indictment of good and lawful people of the same neighborhood where such deeds be done, in due manner, or by process made by writ original at the common law; nor that none be out of his franchise, nor of his freeholds, unless he be duly brought into answer and before judges of the same by the course of law. the chancery came to have a separate and independent equitable jurisdiction. it heard petitions of misconduct of government officials or of powerful oppressors, fraud, accident, abuse of trust, wardship of infants, dower, and rent charges. because the common law and its procedures had become technical and rigid, the chancery was given equity jurisdiction by statute in . king edward iii proclaimed that petitions for remedies that the common law didn't cover be addressed to the chancellor, who was not bound by established law, but could do equity. in chancery, if there is a case that is similar to a case for which there is a writ, but is not in technical conformity with the requirements of the common law for a remedy, then a new writ may be made for that case by the chancellor. these were called "actions on the case". also, parliament may create new remedies. there were so many cases that were similar to a case with no remedy specified in the common law, that litigants were flowing into the chancery. the chancellor gave swift and equitable relief, which was summary. with the backing of the council, the chancellor made decisions implementing the policy of the statute of laborers. most of these concerned occupational competency, for instance negligent activity of carriers, builders, shepherds, doctors, cloth workers, smiths, innkeepers, and gaolers. for instance, the common law action of detinue could force return of cloth bailed for fulling or sheep bailed for pasturing, but could not address damages due to faulty work. the chancellor addressed issues of loss of wool, dead lambs, and damaged sheep, as well as dead sheep. he imposed a legal duty on innkeepers to prevent injury or damage to a patron or his goods from third parties. a dog bite or other damage by a dog known by its owner to be vicious was made a more serious offense than general damage by any dog. a person starting a fire was given a duty to prevent the fire from damaging property of others. the king will fine instead of seize the land of his tenants who sell or alienate their land, such fine to be determined by the chancellor by due process. only barons who were peers of the house of lords were entitled to trial in the house of lords. in practice, however, this pertained only to major crimes. treason was tried by the lords in parliament, by bill of "attainder". it was often used for political purposes. most attainders were reversed as a term of peace made between competing factions. the king's coroner and a murderer who had taken sanctuary in a church often agreed to the penalty of confession and perpetual banishment from the nation as follows: "memorandum that on july , [ ], henry de roseye abjured the realm of england before john bernard, the king's coroner, at the church of tendale in the county of kent in form following: 'hear this, o lord the coroner, that i, henry de roseye, have stolen an ox and a cow of the widow of john welsshe of retherfeld; and i have stolen eighteen beasts from divers men in the said county. and i acknowledge that i have feloniously killed roger le swan in the town of strete in the hundred of strete in the rape [a division of a county] of lewes and that i am a felon of the lord king of england. and because i have committed many ill deeds and thefts in his land, i abjure the land of the lord edward king of england, and [i acknowledge] that i ought to hasten to the port of hastings, which thou hast given me, and that i ought not to depart from the way, and if i do so i am willing to be taken as a thief and felon of the lord king, and that at hastings i will diligently seek passage, and that i will not wait there save for the flood and one ebb if i can have passage; and if i cannot have passage within that period, i will go up to the knees into the sea every day, endeavoring to cross; and unless i can do so within forty days, i will return at once to the church, as a thief and a felon of the lord king, so help me god." property damage by a tenant of a london building was assessed in a case: "john parker, butcher, was summoned to answer clement spray in a plea of trespass, wherein the latter complained that the said john, who had hired a tavern at the corner of st. martin- le-grand from him for fifteen months, had committed waste and damage therein, although by the custom of the city no tenant for a term of years was entitled to destroy any portion of the buildings or fixtures let to him. he alleged that the defendant had taken down the door post of the tavern and also of the shop, the boarded door of a partition of the tavern, a seat in the tavern, a plastered partition wall, the stone flooring in the chamber, the hearth of the kitchen, and the mantelpiece above it, a partition in the kitchen, two doors and other partitions, of a total value of s. four pounds, s. d., and to his damage, s. [ pounds]. the defendant denied the trespass and put himself on the country. afterwards a jury [panel]... found the defendant guilty of the aforesaid trespass to the plaintiff's damage, d. judgment was given for that amount and a fine of s. to the king, which the defendant paid immediately in court." the innkeeper's duty to safeguard the person and property of his lodgers was applied in this case: "john trentedeus of southwark was summoned to answer william latymer touching a plea why, whereas according to the law and custom of the realm of england, innkeepers who keep a common inn are bound to keep safely by day and by night without reduction or loss men who are passing through the parts where such inns are and lodging their goods within those inns, so that, by default of the innkeepers or their servants, no damage should in any way happen to such their guests ... on monday after the feast of the purification of the virgin mary in the fourth year of the now king by default of the said john, certain malefactors took and carried away two small portable chests with s. and also with charters and writings, to wit two writings obligatory, in the one of which is contained that a certain robert bour is bound to the said william in , s. and in the other that a certain john pusele is bound to the same william in s. pounds ... and with other muniments [writings defending claims or rights] of the same william, to wit his return of all the writs of the lord king for the counties of somerset and dorset, whereof the same william was then sheriff, for the morrow of the purification of the blessed mary the virgin in the year aforesaid, as well before the same lord the king in his chancery and in his bench as before the justices of the king's common bench and his barons of his exchequer, returnable at westminster on the said morrow, and likewise the rolls of the court of cranestock for all the courts held there from the first year of the reign of the said lord the king until the said monday, contained in the same chests being lodged within the inn of the same john at southwark and the said john ... says that on the said monday about the second hour after noon the said william entered his inn to be lodged there, and at once when he entered, the same john assigned to the said william a certain chamber being in that inn, fitting for his rank, with a door and a lock affixed to the same door with sufficient nails, so that he should lie there and put and keep his things there, and delivered to the said william the key to the door of the said chamber, which chamber the said william accepted... william says that ... when the said john had delivered to him the said chamber and key as above, the same william, being occupied about divers businesses to be done in the city of london, went out from the said inn into the city to expedite the said businesses and handed over the key of the door to a certain servant of the said william to take care of in meantime, ordering the servant to remain in the inn meanwhile and to take care of his horses there; and afterwards, when night was falling, the same william being in the city and the key still in the keeping of the said servant, the wife of the said john called unto her into her hall the said servant who had the key, giving him food and drink with a merry countenance and asking him divers questions and occupying him thus for a long time, until the staple of the lock of the door aforesaid was thrust on one side out of its right place and the door of the chamber was thereby opened and his goods, being in the inn of the said john, were taken and carried off by the said malefactors ... the said john says ...[that his wife did not call the servant into the hall, but that] when the said servant came into the said hall and asked his wife for bread and ale and other necessaries to be brought to the said chamber of his master, his wife immediately and without delay delivered to the same servant the things for which he asked ... protesting that no goods of the same william in the said inn were carried away by the said john his servant or any strange malefactors other than the persons of the household of the said william." on the coram rege roll of is a case on the issue of whether a court crier can be seized by officers of a staple: "edmund hikelyng, 'crier', sues william baddele and wife maud, john olney, and william knyghtbrugge for assault and imprisonment at westminster, attacking him with a stick and imprisoning him for one hour on wednesday before st. martin, richard ii. baddele says mark faire of winchester was prosecuting a bill of debt for s. against edmund and john more before william brampton, mayor of the staple of westminster, and thomas alby and william askham, constables of the said staple, and on that day the mayor and the constables issued a writ of capias against edmund and john to answer mark and be before the mayor and the constables at the next court. this writ was delivered to baddele as sergeant of the staple, and by virtue of it he took and imprisoned edmund in the staple. maud and the others say they aided baddele by virtue of the said writ. edmund does not acknowledge baddele to be sergeant of the staple or mark a merchant of the staple or that he was taken in the staple. he is minister of the king's court of his bench and is crier under thomas thorne, the chief crier, his master. every servant of the court is under special protection while doing his duty or on his way to do it. on the day in question, he was at westminster carrying his master's staff of office before hugh huls, one of the king's justices, and william took him in the presence of the said justice and imprisoned him. the case is adjourned for consideration from hilary to easter." a law of equity began to be developed from decisions by the chancellor in his court of conscience from around . one such case was that of godwyne v. profyt sometime after . this petition was made to the chancellor: to the most reverend father in god, and most gracious lord, the bishop of exeter, chancellor of england. thomas godwyne and joan his wife, late wife of peter at more of southwerk, most humbly beseech that, whereas at michaelmas in the th year of our most excellent lord king richard who now is, the said peter at more in his lifetime enfeoffed thomas profyt parson of st. george's church southwerk, richard saundre, and john denewey, in a tenement with the appurtenances situated in southwerk and acres of land acres of meadow in the said parish of st. george and in the parish of our lady of newington, on the conditions following, to wit, that the said three feoffees should, immediately after the death of the said peter, enfeoff the said joan in all the said lands and tenements with all their appurtenances for the life of the said joan, with remainder after her decease to one nicholas at more, brother of the said peter, to hold to him and the heirs of his body begotten, and for default of issue, then to be sold by four worthy people of the said parish, and the money to be received for the same to be given to holy church for his soul; whereupon the said peter died. and after his death two of the said feoffees, richard and john, by the procurement of one john solas, released all their estate in the said lands and tenements to the said thomas profyt, on the said conditions, out of the great trust that they had in the said thomas profyt, who was their confessor, that he would perform the will of the said peter [at more] in the form aforesaid; and this well and lawfully to do the said thomas profyt swore on his verbum dei and to perform the said conditions on all points. and since the release was so made, the said thomas profyt, through the scheming and false covin of the said john solas, has sold all the lands and tenements aforesaid to the same john solas for ever. and the said john solas is bound to the said thomas profyt in pounds by a bond to make defense of the said lands and tenements by the bribery (?) and maintenance against every one; and so by their false interpretation and conspiracy the said joan, nicholas, and holy church are like to be disinherited and put out of their estate and right, as is abovesaid, for ever, tortiously, against the said conditions, and contrary to the will of the said peter [at more]. may it please your most righteous lordship to command the said thomas profyt, richard saundre, and john denewy to come before you, and to examine them to tell the truth of all the said matter, so that the said joan, who has not the wherewithal to live, may have her right in the said lands and tenements, as by the examination before you, most gracious lord, shall be found and proved; for god and in way of holy charity. - - - chapter - - - - the times: - - this period, which begins with the reign of the usurper king, henry iv, is dominated by war: the last half of the year war with france, which, with the help of joan of arc, took all english land on the continent except the port of calais, and the war of the roses over the throne in england. the ongoing border fights with wales and scotland were fought by england's feudal army. but for fighting in france, the king paid barons and earls to raise their own fighting forces. when they returned to england, they fought to put their candidate on its throne, which had been unsteady since its usurpation by henry iv. all the great houses kept bands of armed retainers. these retainers were given land or pay or both as well as liveries [uniforms or badges] bearing the family crest. in the system of "livery and maintenance", if the retainer was harassed by the law or by enemies, the lord protected him. the liveries became the badges of the factions engaged in the war of the roses. and the white rose was worn by the supporters of the house of york, and the red rose by supporters of the house of lancaster for the crown. great lords fought each other for property and made forcible entries usurping private property. shakespeare's histories deal with this era. in both wars, the musket was used as well as the longbow. to use it, powder was put into the barrel, then a ball rammed down the barrel with a rod, and then the powder lit by a hot rod held with one hand while the other hand was used to aim the musket. cannon were used to besiege castles and destroy their walls, so many castles were allowed to deteriorate. the existence of cannon also limited the usefulness of town walls for defense. but townspeople did not take part in the fighting. since the power of the throne changed from one faction to another, political and personal vindictiveness gave rise to many bills of attainder that resulted in lords being beheaded and losing their lands to the king. however, these were done by the form of law; there were no secret executions in england. families engaged in blood feuds. roving bands ravaged the country, plundering the people, holding the forests, and robbing collectors of crown revenue. some men made a living by fighting for others in quarrels. individual life and property were insecure. whole districts were in a permanent alarm of riot and robbery. the roads were not safe. nobles employed men who had returned from fighting in war to use their fighting skill in local defense. there was fighting between lords and gangs of ruffians holding the roads, breaking into and seizing manor houses, and openly committing murders. peace was never well-kept nor was law ever well-executed, though fighting was suspended by agreement during the harvest. local administration was paralyzed by party faction or lodged in some great lord or some clique of courtiers. the elections of members to parliament was interfered with and parliament was rarely held. barons and earls fought their disputes in the field rather than in the royal courts. litigation was expensive, so men relied increasingly on the protection of the great men of their neighborhood and less on the king's courts for the safety of their lives and land. local men involved in court functions usually owed allegiance to a lord which compromised the exercise of justice. men serving in an assize often lied to please their lord instead of telling the truth. lords maintained, supported, or promoted litigation with money or aid supplied to one party to the detriment of justice. it was not unusual for lords to attend court with a great force of retainers behind them. many justices of the peace wore liveries of magnates and accepted money from them. royal justices were flouted or bribed. the king's writ was denied or perverted. for - s., a lord could have the king instruct his sheriff to impanel a jury which would find in his favor. a statute against riots, forcible entries, and, excepting the king, magnates' liveries of uniform, food, and badges to their retainers, except in war outside the nation, was passed, but was difficult to enforce because the offenders were lords, who dominated the parliament and the council. with men so often gone to fight, their wives managed the household alone. the typical wife had maidens of equal class to whom she taught household management, spinning, weaving, carding wool with iron wool-combs, heckling flax, embroidery, and making garments. there were foot-treadles for spinning wheels. she taught the children. each day she scheduled the activities of the household including music, conversation, dancing, chess, reading, playing ball, and gathering flowers. she organized picnics, rode horseback and went hunting, hawking to get birds, and hare-ferreting. she was nurse to all around her. if her husband died, she usually continued in this role because most men named their wife as executor of their will with full power to act as she thought best. the wives of barons shared their right of immunity from arrest by the processes of common law and to be tried by their peers. for ladies, close-fitting jackets came to be worn over close- fitting long gowns with low, square-cut necklines and flowing sleeves, under which was worn a girdle or corset of stout linen reinforced by stiff leather or even iron. her skirt was provocatively slit from knee to ankle. all her hair was confined by a hair net. headdresses were very elaborate and heavy, trailing streamers of linen. some were in the shape of hearts, butterflies, crescents, double horns, steeples, or long cones. men also wore hats rather than hoods. they wore huge hats of velvet, fur, or leather. their hair was cut into a cap-like shape on their heads, and later was shoulder-length. they wore doublets with thick padding over the shoulders or short tunics over the trucks of their bodies and tightened at the waist to emphasize the shoulders. their collars were high. their sleeves were long concoctions of velvet, damask, and satin, sometimes worn wrapped around their arms in layers. their legs and hips were covered with hosen, often in different colors. codpieces worn between the legs emphasized the sensuality of the age as did ladies' tight and low- cut gowns. men's shoes were pointed with upward pikes at the toes that impeded walking. at another time, their shoes were broad with blunt toes. both men and women wore much jewelry and ornamentation. but, despite the fancy dress, the overall mood was a macabre preoccupation with mortality, despair, and a lack of confidence in the future. cannon and mercenaries had reduced the military significance of knighthood, so its chivalric code deteriorated into surface politeness, ostentation, and extravagance. master and servants ceased to eat together in the same hall, except for great occasions, on feast days, and for plays. the lord, and his lady, family, and guests took their meals in a great chamber, usually up beneath the roof next to the upper floor of the great hall. the chimney-pieces and windows were often richly decorated with paneled stonework, tracery and carving. there was often a bay or oriel window with still expensive glass. tapestries, damask, and tablecloths covered the tables. there was much formality and ceremonial ritual, more elaborate than before, during dinners at manorial households, including processions bringing and serving courses, and bowing, kneeling, and curtseying. there were many courses of a variety of meats, fish, stews, and soups, with a variety of spices and elaborately cooked. barons, knights, and their ladies sat to the right of the lord above the salt and were served by the lord's sewer and carver and gentlemen waiters; their social inferiors such as "gentlemen of worship" sat below the salt and were served by another sewer and yeomen. the lord's cupbearer looked after the lord alone. a knights table was waited on by yeomen. the gentlemen officers, gentlemen servants and yeomen officers were waited on by their own servants. the amount of food dished out to each person varied according to his rank. the almoner said grace and distributed the leftovers to the poor gathered at the gate. the superior people's hands were washed by their inferiors. lastly, the trestle tables were removed while sweet wine and spices were consumed standing. then the musicians were called into the hall and dancing began. the lord usually slept in a great bed in this room. the standard number of meals was three: breakfast, dinner, and supper. the diet of an ordinary family such as that of a small shopholder or yeoman farmer included beef, mutton, pork, a variety of fish, both fresh and salted, venison, nuts, peas, oatmeal, honey, grapes, apples, pears, and fresh vegetables. cattle and sheep were driven from wales to english markets. this droving lasted for five centuries. many types of people besides the nobility and knights now had property and thus were considered gentry: female lines of the nobility, merchants and their sons, attorneys, auditors, squires, and peasant-yeomen. the burgess grew rich as the knight dropped lower. the great merchants lived in mansions which could occupy whole blocks. typically, there would be an oak-paneled great hall, with adjoining kitchen, pantry, and buttery on one end and a great parlor to receive guests, bedrooms, wardrobes, servants' rooms, and a chapel on the other end or on a second floor. the beds were surrounded by heavy draperies to keep out cold drafts. in towns these mansions were entered through a gate through a row of shops on the street. a lesser dwelling would have these rooms on three floors over a shop on the first floor. an average londoner would have a shop, a storeroom, a hall, a kitchen, and a buttery on the first floor, and three bedrooms on the second floor. artisans and shopkeepers of more modest means lived in rows of dwellings, each with a shop and small storage room on the first floor, and a combination parlor-bedroom on the second floor. the humblest residents crowded their shop and family into one by foot room for rent of a few shillings a year. all except the last would also have a small garden. the best gardens had a fruit tree, herbs, flowers, a well, and a latrine area. there were common and public privies for those without their own. kitchen slops and casual refuse continued to be thrown into the street. floors of stone or planks were strewn with rushes. there was some tile flooring. most dwellings had glass windows. candles were used for lighting at night. torches and oil-burning lanterns were portable lights. furnishings were still sparse. men sat on benches or joint stools and women sat on cushions on the floor. hall and parlor had a table and benches and perhaps one chair. bedrooms had a curtained feather bed with pillows, blankets, and sheets. clothes were stored in a chest, sometimes with sweet-smelling herbs such as lavender, rosemary, and southernwood. better homes had wall hanging and cupboards displaying plate. laundresses washed clothes in the streams, rivers, and public conduits. country peasants still lived in wood, straw, and mud huts with earth floors and a smoky hearth in the center or a kitchen area under the eaves of the hut. in , bricks began to be manufactured in the nation and so there was more use of bricks in buildings. chimneys were introduced into manor houses where stone had been too expensive. this was necessary if a second floor was added, so the smoke would not damage the floor above it and would eventually go out of the house. nobles and their retinue moved from manor to manor, as they had for centuries, to keep watch upon their lands and to consume the produce thereof; it was easier to bring the household to the estate than to transport the yield of the estate to the household. also, at regular intervals sewage had to be removed from the cellar pits. often a footman walked or ran on foot next to his master or mistress when they rode out on horseback or in a carriage. he was there primarily for prestige. jousting tournaments were held for entertainment purposes only and were followed by banquets of several courses of food served on dishes of gold, silver, pewter, or wood on a linen cloth covering the table. hands were washed before and after the meal. people washed their faces every morning after getting up. teeth were cleaned with powders. fragrant leaves were chewed for bad breath. garlic was used for indigestion and other ailments. feet were rubbed with salt and vinegar to remove calluses. good manners included not slumping against a post, fidgeting, sticking one's finger into one's nose, putting one's hands into one's hose to scratch the privy parts, spitting over the table or too far, licking one's plate, picking one's teeth, breathing stinking breath into the face of the lord, blowing on one's food, stuffing masses of bread into one's mouth, scratching one's head, loosening one's girdle to belch, and probing one's teeth with a knife. fishing and hunting were reserved for the nobility rather than just the king. as many lords became less wealthy because of the cost of war, some peasants, villein and free, became prosperous, especially those who also worked at a craft, e.g. butchers, bakers, smiths, shoemakers, tailors, carpenters, and cloth workers. an agricultural slump caused poorer soils to fall back into waste. the better soils were leased by peasants, who, with their families, were in a better position to farm it than a great lord, who found it hard to hire laborers at a reasonable cost. further, peasants' sheep, hens, pigs, ducks, goats, cattle, bees, and crop made them almost self-sufficient in foodstuffs. they lived in a huddle of cottages, pastured their animals on common land, and used common meadows for haymaking. they subsisted mainly on boiled bacon, an occasional chicken, worts and beans grown in the cottage garden, and cereals. they wore fine wool cloth in all their apparel. brimless hats were replacing hoods. they had an abundance of bed coverings in their houses. and they had more free time. village entertainment included traveling jesters, acrobats, musicians, and bear-baiters. playing games and gambling were popular pastimes. most villeins were now being called "customary tenants" or "copy- holders" of land because they held their acres by a copy of the court-roll of the manor, which listed the number of teams, the fines, the reliefs, and the services due to the lord for each landholder. the chancery court interpreted many of these documents to include rights of inheritance. the common law courts followed the lead of the chancery and held that copyhold land could be inherited as was land at common law. evictions by lords decreased. the difference between villein and freeman lessened but landlords usually still had profits of villein bondage, such as heriot, merchet, and chevage. a class of laborers was arising who depended entirely on the wages of industry for their subsistence. the cloth workers in rural areas were isolated and weak and often at the mercy of middlemen for employment and the amount of their wages. when rural laborers went to towns to seek employment in the new industries, they would work at first for any rate. this deepened the cleavage of the classes in the towns. the artificers in the town and the cottagers and laborers in the country lived from hand to mouth, on the edge of survival, but better off than the old, the diseased, the widows, and the orphans. however, the s were the most prosperous time for laborers considering their wages and the prices of food. meat and poultry were plentiful and grain prices low. social mobility was most possible in the towns, where distinctions were usually only of wealth. so a poor apprentice could aspire to become a master, a member of the livery of his company, a member of the council, an alderman, a mayor, and then an esquire for life. the distance between baron and a country knight and between a yeoman and knight was wider. manor custom was strong. but a yeoman could give his sons a chance to become gentlemen by entering them in a trade in a town, sending them to university, or to war. every freeman was to some extent a soldier, and to some extent a lawyer, serving in the county or borough courts. a burgess, with his workshop or warehouse, was trained in warlike exercises, and he could keep his own accounts, and make his own will and other legal documents, with the aid of a scrivener or a chaplain, who could supply an outline of form. but law was growing as a profession. old-established london families began to choose the law as a profession for their sons, in preference to an apprenticeship in trade. many borough burgesses in parliament were attorneys. in london, shopkeepers appealed to passersby to buy their goods, sometimes even seizing people by the sleeve. the drapers had several roomy shops containing shelves piled with cloths of all colors and grades, tapestries, pillows, blankets, bed draperies, and 'bankers and dorsers' to soften hard wooden benches. a rear storeroom held more cloth for import or export. many shops of skinners were on fur row. there were shops of leather sellers, hosiers, gold and silver cups, and silks. at the stocks market were fishmongers, butchers, and poulterers. london grocers imported spices, canvas, ropery, potions, unguents, soap, confections, garlic, cabbages, onions, apples, oranges, almonds, figs, dates, raisins, dyestuffs, woad, madder (plant for medicine and dye), scarlet grains, saffron, iron, and steel. they were retailers as well as wholesalers and had shops selling honey, licorice, salt, vinegar, rice, sugar loaves, syrups, spices, garden seeds, dyes, alum, soap, brimstone, paper, varnish, canvas, rope, musk, incense, treacle of genoa, and mercury. the grocers did some money lending, usually at % interest. the guilds did not restrict themselves to dealing in the goods for which they had a right of inspection, and so many dealt in wine that it was a medium of exchange. there was no sharp distinction between retail and wholesale trading. in london, grocers sold herbs for medicinal as well as eating purposes. breadcarts sold penny wheat loaves. foreigners set up stalls on certain days of the week to sell meat, canvas, linen, cloth, ironmongery, and lead. there were great houses, churches, monasteries, inns, guildhalls, warehouses, and the king's beam for weighing wool to be exported. in , the guildhall of london was built through contributions, proceeds of fines, and lastly, to finish it, special fees imposed on apprenticeships, deeds, wills, and letters-patent. the mercers and goldsmiths were in the prosperous part of town. the goldsmiths' shops sold gold and silver plate, jewels, rings, water pitchers, drinking goblets, basins to hold water for the hands, and covered saltcellars. the grain market was on cornhill. halfway up the street, there was a supply of water which had been brought up in pipes. on the top of the hill was a cage where riotous folk had been incarcerated by the night watch and the stocks and pillory, where fraudulent schemers were exposed to ridicule. no work was to be done on sundays, but some did work surreptitiously. the barbers kept their shops open in defiance of the church. outside the london city walls were tenements, the smithfield cattle market, westminster hall, green fields of crops, and some marsh land. on the thames river to london were large ships with cargoes; small boats rowed by tough boatmen offering passage for a penny; small private barges of great men with carved wood, gay banners, and oarsmen with velvet gowns; the banks covered with masts and tackle; the nineteen arch london bridge supporting a street of shops and houses and a drawbridge in the middle; quays; warehouses, and great cranes lifting bales from ship to wharf. merchant guilds which imported or exported each had their own wharves and warehouses. downstream, pirates hung on gallows at the low-water mark to remain until three tides had overflowed their bodies. a climate change of about / degree celcius lower caused the thames to regularly freeze over in winter. the large scale of london trade promoted the specialization of the manufacturer versus the merchant versus the shipper. merchants had enough wealth to make loans to the government or for new commercial enterprises. local reputation on general, depended upon a combination of wealth, trustworthiness of character, and public spirit; it rose and fell with business success. some london merchants were knighted by the king. many bought country estates and turned themselves into gentry. the king granted london all common soils, improvements, wastes, streets, and ways in london and in the adjacent waters of the thames river and all the profits and rents to be derived therefrom. later the king granted london the liberty to purchase lands and tenements worth up to , s. yearly. with this power, london had obtained all the essential features of a corporation: a seal, the right to make by-laws, the power to purchase lands and hold them "to them and their successors" (not simply their heirs, which is an individual and hereditary succession only), the power to sue and be sued in its own name, and the perpetual succession implied in the power of filling up vacancies by election. since these powers were not granted by charters, london is a corporation by prescription. in , the liverymen obtained the right with the council to elect the mayor, the sheriff, and certain other corporate officers. many boroughs sought and obtained formal incorporation with the same essential features as london. this tied up the loose language of their early charters of liberties. often, a borough would have its own resident justice of the peace. each incorporation involved a review by a justice of the peace to make sure the charter of incorporation rule didn't conflict with the law of the nation. a borough typically had a mayor accompanied by his personal sword- bearer and serjeants-at-mace bearing the borough regalia, bailiffs, a sheriff, and chamberlains or a steward for financial assistance. at many boroughs, aldermen, assisted by their constables, kept the peace in their separate wards. there might be coroners, a recorder, and a town clerk, with a host of lesser officials including beadles, aletasters, sealers, searchers [inspectors], weighers and keepers of the market, ferrymen and porters, clock-keepers and criers, paviors [maintained the roads], scavengers and other street cleaners, gatekeepers and watchmen of several ranks and kinds. a wealthy borough would have a chaplain and two or three minstrels. the mayor replaced the bailiffs as the chief magistracy. in all towns, the wealthiest and most influential guilds were the merchant traders of mercers, drapers, grocers, and goldsmiths. >from their ranks came most of the mayors, and many began to intermarry with the country knights and gentry. next came the shopholders of skinners, tailors, ironmongers, and corvisors [shoemakers]. thirdly came the humbler artisans, the sellers of victuals, small shopkeepers, apprentices, and journeymen on the rise. lastly came unskilled laborers, who lived in crowded tenements and hired themselves out. the first three groups were the free men who voted, paid scot and bore lot, and belonged to guilds. scot was a ratable proportion in the payments levied from the town for local or national purposes. merchant guilds in some towns merged their existence into the town corporation, and their guild halls became the common halls of the town, and their property became town property. in london, the cutlers' company was chartered in , the haberdashers' company in , the grocers' company in , the drapers' and cordwainers' companies in , the vintners' and brewers' companies in , the leathersellers' company in , the girdlers' company in , the armourers' and brassiers' companies in , the barbers' company in , the tallow chandlers' company in , the ironmongers' company in , the dyers' company in , the musicians' company in , the carpenters' company in , the cooks' company in , and the waxchandlers' company in . the fishmongers, which had been chartered in , were incorporated in , the cordwainers in , and the pewterers in . there were craft guilds in the towns, at least in london. in fact, every london trade of twenty men had its own guild. the guild secured good work for its members and the members maintained the reputation of the work standards of the guild. bad work was punished and night work prohibited as leading to bad work. the guild exercised moral control over its members and provided sickness and death benefits for them. there was much overlapping in the two forms of association: the craft guild and the religious fraternity. apprentices were taken in to assure an adequate supply of competent workers for the future. the standard indenture of an apprentice bound him to live in his master's house, to serve him diligently, obey reasonable commands, keep his master's secrets, protect him from injury, abstain from dice, cards and haunting of taverns, not marry, commit no fornication, nor absent himself without permission. in return the master undertook to provide the boy or girl with bed, board, and lodging and to instruct him or her in the trade, craft, or mystery. when these apprentices had enough training they were made journeymen with a higher rate of pay. journeymen traveled to see the work of their craft in other towns. those journeymen rising to master had the highest pay rate. occupations free of guild restrictions included horse dealers, marbelers, bookbinders, jewelers, organ makers, feathermongers, pie makers, basket makers, mirrorers, quilters, and parchment makers. non-citizens of london could not be prevented from selling leather, metalwares, hay, meat, fruit, vegetables, butter, cheese, poultry, and fish from their boats, though they had to sell in the morning and sell all their goods before the market closed. in the towns, many married women had independent businesses and wives also played an active part in the businesses of their husbands. wives of well-to-do london merchants embroidered, sewed jewelry onto clothes, and made silk garments. widows often continued in their husband's businesses, such as managing a large import-export trade, tailoring, brewing, and metal shop. socially lower women often ran their own breweries, bakeries, and taverns. it was possible for wives to be free burgesses in their own right in some towns. some ladies were patrons of writers. some women were active in prison reform in matters of reviews to insure that no man was in gaol without due cause, overcharges for bed and board, brutality, and regulation of prisoners being placed in irons. many men and women left money in their wills for food and clothing for prisoners, especially debtors. wills often left one-third of the wealth to the church, the poor, prisoners, infirmaries, young girls' education; road, wall, and bridge repair; water supply, markets and almshouses. some infirmaries were for the insane, who were generally thought to be possessed by the devil or demons. their treatment was usually by scourging the demons out of their body by flogging. if this didn't work, torture could be used to drive the demons from the body. the guilds were being replaced by associations for the investment of capital. in associations, journeymen were losing their chance of rising to be a master. competition among associations was starting to supplant custom as the mainspring of trade. the cloth exporters, who were mostly mercers, were unregulated and banded together for mutual support and protection under the name of merchant adventurers of london. the merchant adventurers was chartered in . it was the first and a prototype of regulated companies. that is the company regulated the trade. each merchant could ship on his own a certain number of cloths each year (the number depending on the length of his membership in the company) and sell them himself or by his factor at the place where the company had privileges of market. strict rules governed the conduct of each member. he was to make sales only at certain hours on specified days. all disagreements were to be settled by the company's governor, or his deputy in residence, and those officials dealt with such disputes as arose between members of the company and continental officials and buyers. a share in the ownership of one of their vessels was a common form of investment by prosperous merchants. by , the merchant adventurers were dealing in linen cloths, buckrams [a stiffened, coarse cloth], fustians [coarse cloth made of cotton threads going in one direction and linen threads the other], satins, jewels, fine woolen and linen wares, threads, potions, wood, oil, wine, salt, copper, and iron. they began to replace trade by alien traders. the history of the "merchant adventurers" was associated with the growth of the mercantile system for more than years. it eventually replaced the staples system. paved roads in towns were usually gravel and sometimes cobble. they were frequently muddy because of rain and spillage of water being carried. iron-shod wheels and overloaded carts made them very uneven. london was the first town with paviors. they cleaned and repaired the streets, filling up potholes with wood chips and compacting them with hand rams. the paviors were organized as a city company in . about , towns besides london began appointing salaried road paviors to repair roads and collect their expenses from the householders because the policy of placing the burden on individual householders didn't work well. london streets were lighted at night by public lanterns, under the direction of the mayor. the residents were to light these candle lanterns in winter from dusk to the p.m. curfew. there were fire-engines composed of a circular cistern with a pump and six feet of inflexible hose on wheels pulled by two men on one end and pushed by two men on the other end. in the city walls were rebuilt with a weekly tax of d. per head. in schools, there was a renaissance of learning from original sources of knowledge written in greek and rebirth of the greek pursuit of the truth and scientific spirit of inquiry. there was a striking increase in the number of schools founded by wealthy merchants or town guilds. every cathedral, monastery, and college had a grammar school. merchants tended to send their sons to private boarding schools, instead of having them tutored at home as did the nobility. well-to-do parents still sent sons to live in the house of some noble to serve them as pages in return for being educated with the noble's son by the household priest. they often wore their master's coat of arms and became their squires as part of their knightly education. sometimes girls were sent to live in another house to take advantage to receive education from a tutor there under the supervision of the lady of the house. every man, free or villein, could send his sons and daughters to school. in every village, there were some who could read and write. in , lincoln's inn required barristers normally resident in london and the county of middlesex to remain in residence and pay commons during the periods between sessions of court and during vacations, so that the formal education of students would be continuous. in , a similar requirement was extended to all members. the book "sir gawain and the green knight" was written about an incident in the court of king arthur and queen guenevere in which a green knight challenges arthur's knights to live up to their reputation for valor and awesome deeds. the knight gawain answers the challenge, but is shown that he could be false and cowardly when death seemed to be imminent. thereafter, he wears a green girdle around his waist to remind him not to be proud. other literature read included "london lickpenny", a satire on london and its expensive services and products, "fall of princes" by john lydgate, social history by thomas hoccleve, "the cuckoo and the nightengale", and "the flower and leaf" on morality as secular common sense. king james i of scotland wrote a book about how he fell in love. chaucer, cicero, ovid, and aesops's fables were widely read. malory's new version of the arthurian stories was popular. margery kempe wrote the first true autobiography. she was a woman who had a normal married life with children, but one day had visions and voices which led her to leave her husband to take up a life of wandering and praying in holy possession. there were religious folk ballads such as "the cherry tree carol", about the command of jesus from mary's womb for a cherry tree to bend down so that mary could have some cherries from it. the common people developed ballads, e.g. about their love of the forest, their wish to hunt, and their hatred of the forest laws. about % of londoners could read english. books were bought in london in such quantities by that the craft organizations of text-letter writers, illuminators, bookbinders, and book sellers was sanctioned by ordinance. "unto the honorable lords, and wise, the mayor and aldermen of the city of london, pray very humbly all the good folks, freemen of the said city, of the trades of writers of text-letter, limners [illuminator of books], and other folks of london who are wont to bind and to sell books, that it may please your great sagenesses to grant unto them that they may elect yearly two reputable men, the one a limner, the other a text- writer, to be wardens of the said trades, and that the names of the wardens so elected may be presented each year before the mayor for the time being, and they be there sworn well and diligently to oversee that good rule and governance is had and exercised by all folks of the same trades in all works unto the said trades pertaining, to the praise and good fame of the loyal good men of the said trades and to the shame and blame of the bad and disloyal men of the same. and that the same wardens may call together all the men of the said trades honorably and peacefully when need shall be, as well for the good rule and governance of the said city as of the trades aforesaid. and that the same wardens, in performing their due office, may present from time to time all the defaults of the said bad and disloyal men to the chamberlain at the guildhall for the time being, to the end that the same may there, according to the wise and prudent discretion of the governors of the said city, be corrected, punished, and duly redressed. and that all who are rebellious against the said wardens as to the survey and good rule of the same trades may be punished according to the general ordinance made as to rebellious persons in trades of the said city [fines and imprisonment]. and that it may please you to command that this petition, by your sagenesses granted, may be entered of record for time to come, for the love of god and as a work of charity." gutenberg's printing press, which used movable type of small blocks with letters on them, was brought to london in by a mercer: william caxton. it supplemented the text-writer and monastic copyist. it was a wood and iron frame with a mounted platform on which were placed small metal frames into which words with small letters of lead had been set up. each line of text had to be carried from the type case to the press. beside the press were pots filled with ink and inking balls. when enough lines of type to make a page had been assembled on the press, the balls would be dipped in ink and drawn over the type. then a sheet of paper would be placed on the form and a lever pulled to press the paper against the type. linen usually replaced the more expensive parchment for the book pages. the printing press made books more accessible to all literate people. caxton printed major english texts and some translations from french and latin. he commended different books to various kinds of readers, for instance, for gentlemen who understand gentleness and science, or for ladies and gentlewomen, or to all good folk. there were many cook books in use. there were convex eyeglasses for reading and concave ones for distance to correct near-sightedness. the first public library in london was established from a bequest in a will in . many carols were sung at the christian festival of christmas. ballads were sung on many features of social life of this age of disorder, hatred of sheriffs, but faith in the king. the legend of robin hood was popular. town miracle plays on leading incidents of the bible and morality plays were popular. vintners portrayed the miracle of cana where water was turned into wine and goldsmiths ornately dressed the three kings coming from the east. in york, the building of noah's ark was performed by the shipwrights and the flood performed by the fishery and mariners. short pantomimes and disguising, forerunners of costume parties, were good recreation. games of cards became popular as soon as cards were introduced. the king, queen, and jack were dressed in contemporary clothes. men bowled, kicked footballs, and played tennis. in london, christmas was celebrated with masques and mummings. there was a great tree in the main market place and evergreen decorations in churches, houses, and streets. there were also games, dances, street bonfires in front of building doors, and general relaxation of social controls. sometimes there was drunken licentiousness and revelry, with peasants gathering together to make demands of lords for the best of his goods. may day was celebrated with crowns and garlands of spring flowers. the village may day pageant was often presided over by robin hood and maid marion. people turned to mysticism to escape from the everyday violent world. they read works of mystics, such as "scale of perfection" and "cloud of unknowing", the latter describing how one may better know god. they believed in magic and sorcery, but had no religious enthusiasm because the church was engendering more disrespect. monks and nuns had long ago resigned spiritual leadership to the friars; now the friars too lost much of their good reputation. the monks became used to life with many servants such as cooks, butlers, bakers, brewers, barbers, laundresses, tailors, carpenters, and farm hands. the austerity of their diet had vanished. the schedule of divine services was no longer followed by many and the fostering of learning was abandoned. into monasteries drifted the lazy and miserable. nunneries had become aristocratic boarding houses. the practice of taking sanctuary was abused; criminals and debtors sought it and were allowed to overstay the -day restriction and to leave at night to commit robberies. there were numerous chaplains, who were ordained because they received pay from private persons for saying masses for the dead; having to forego wife and family, they had much leisure time for mischief. church courts became corrupt, but jealously guarded their jurisdiction from temporal court encroachment. peter's pence was no longer paid by the people, so the burden of papal exaction fell wholly on the clergy. but the church was rich and powerful, paying almost a third of the whole taxation of the nation and forming a majority in the house of lords. many families had kinsmen in the clergy. even the lowest cleric or clerk could read and write in latin. people relied on saint's days as reference points in the year, because they did not know dates of the year. but townspeople knew the hour and minute of each day, because clocks driven by a descending weight on a cord were in all towns and in the halls of the well-to-do. this increased the sense of punctuality and lifted standards of efficiency. these weight-driven clocks replaced water clocks, which had a problem of water freezing, and sandclocks, which could measure only small time intervals. a linguistic unity and national pride was developing. london english became the norm and predominated over rural dialects. important news was announced and spread by word of mouth in market squares and sometimes in churches. as usual, traders provided one of the best sources of news; they maintained an informal network of speedy messengers and accurate reports because political changes so affected their ventures. news also came from peddlers, who visited villages and farms to sell items that could not be bought in the local village. these often included scissors, eyeglasses, colored handkerchiefs, calendars, fancy leather goods, watches, and clocks. peddling was fairly profitable because of the lack of competition. but peddlers were often viewed as tramps and suspected of engaging in robbery as well as peddling. a royal post service was established by relays of mounted messengers. the first route was between london and the scottish border, where there were frequent battles for land between the scotch and english. the inland roads from town to town were still rough and without signs. a horseman could make up to miles a day. common carriers took passengers and parcels from various towns to london on scheduled journeys. now the common yeoman could order goods from the london market, communicate readily with friends in london, and receive news of the world frequently. trade with london was so great and the common carrier so efficient in transporting goods that the medieval fair began to decline. first the grocers and then the mercers refused to allow their members to sell goods at fairs. there was much highway robbery. most goods were still transported by boats along the coasts, with trading at the ports. embroidery was exported. imported were timber, pitch, tar, potash [for cloth dying], furs, silk, satin, gold cloth, damask cloth, furred gowns, gems, fruit, spices, and sugar. imports were restricted by national policy for the purpose of protecting native industries. english single-masted ships began to be replaced by two or three masted ships with high pointed bows to resist waves and sails enabling the ship to sail closer to the wind. tuns was the usual carrying capacity. the increase in trade made piracy, even by merchants, profitable and frequent until merchant vessels began sailing in groups for their mutual protection. the astrolabe was used for navigation by the stars. consuls were appointed to assist english traders abroad. henry iv appointed the first admiral of the entire nation and resolved to create a national fleet of warships instead of using merchant ships. in , the war navy had ships. in , portsmouth was fortified as a naval base. henry v issued the orders that formed the basic law of english admiralty and appointed surgeons to the navy and army. he was the last true warrior king. for defense of the nation, especially the safeguard of the seas, parliament allotted the king for life, s. for every tun of wine imported and an additional s. for every tun of sweet wine imported. from about , tunnage on wine and poundage on merchandise were duties on goods of merchants which were regularly granted by parliament to the king for life for upkeep of the navy. before this time, such duties had been sporadic and temporary. the most common ailments were eye problems, aching teeth, festering ears, joint swelling and sudden paralysis of the bowels. epidemics broke out occasionally in the towns in the summers. the plague swept london in and the nation in , , and . leprosy disappeared. infirmaries were supported by a tax of the king levied on nearby counties. the walls, ditches, gutters, sewers, and bridges on waterways and the coast were kept in repair by laborers hired by commissions appointed by the chancellor. those who benefited from these waterways were taxed for the repairs in proportion to their use thereof. alabaster was sculptured into tombs surmounted with a recumbent effigy of the deceased, and effigies of mourners on the sides. few townsmen choose to face death alone and planned memorial masses to be sung to lift his soul beyond purgatory. chantries were built by wealthy men for this purpose. chemical experimentation was still thought to be akin to sorcery, so was forbidden by king henry iv in . gold was minted into coins: noble, half noble, and farthing. king henry iv lost power to the commons and the lords because he needed revenue from taxes and as a usurper king, he did not carry the natural authority of a king. the commons acquired the right to elect its own speaker. the lords who helped the usurpation felt they should share the natural power of the kingship. the council became the instrument of the lords. also, the commons gained power compared to the nobility because many nobles had died in war. the consent of the commons to legislation became so usual that the justices declared that it was necessary. the commons began to see itself as representative of the entire commons of the realm instead of just their own counties. its members had the freedom to consider and debate every matter of public interest, foreign or domestic, except for church matters. the commons, the poorest of the three estates, established an exclusive right to originate all money grants to the king in . the speaker of the commons announced its money grant to the king only on the last day of the parliamentary session, after the answers to its petitions had been declared, and after the lords had agreed to the money grant. it tied its grants by rule rather than just practice to certain appropriations. for instance, tunnage and poundage were appropriated for naval defenses. wool customs went to the maintenance of calais, a port on the continent, and defense of the nation. it also put the petitions in statutory form, called "bills", to be enacted after consideration and amendment by all without alteration. each house had a right to deliberate in privacy. in the commons, members spoke in the order in which they stood up bareheaded. any member of parliament or either house or the king could initiate a bill. both houses had the power to amend or reject a bill. there were conferences between select committees of both houses to settle their differences. the commons required the appointment of auditors to audit the king's accounts to ensure past grants had been spent according to their purpose. it forced the king's council appointees to be approved by parliament and to be paid salaries. about , kings' councilors were required to take an oath not to accept gifts of land, not to maintain private suits, not to reveal secrets, and not to neglect the kings' business. a quorum was fixed and rules made for removal from the council. for the next fifty years, the council was responsible both to the king and to parliament. this was the first encroachment on the king's right to summon, prorogue, or dismiss a parliament at his pleasure, determine an agenda of parliament, veto or amend its bills, exercise his discretion as to which lords he summoned to parliament, and create new peers by letters patent [official public letters]. parliament was affected by the factionalism of the times. the speaker of the commons was often an officer of some great lord. in , the retainers of the barons in parliament were forbidden to bear arms, so they appeared with clubs on their shoulders. when the clubs were forbidden, they came with stones concealed in their clothing. kings created dukes and marquesses to be peers. a duke was given creation money or allowance of pounds a year. a marquess was given pounds. these new positions could not descend to an heiress, unlike a barony or earldom. an earl was given pounds, which probably took the place of his one-third from the county. king henry vi gave the title of viscount to several people; it had an allowance of . pounds and was above baron. it allowed them to be peers. there were about peers. in king edward iv's reign, the king's retinue had about knights, squires, yeomen, clerks, grooms, and stablemen. the suitable annual expense of the household of the king was , pounds for his retinue of about people, a duke , pounds for about people, a marquess , pounds for about people, an earl , pounds for about people, a viscount , pounds for about people, a baron pounds for about people, a banneret [a knight made in the field, who had a banner] pounds for about people, a knight bachelor pounds for about people, and a squire pounds for about people. of a squire's pounds, about pounds were spent in food, repairs and furniture , on horses, hay, and carriage , on clothes, alms and oblations , wages , livery of dress , and the rest on hounds and the charges of harvest and hay time. many servants of the household of the country gentleman were poor relations. they might by education and accomplishment rise into the service of a baron who could take him to court and make his fortune. barons' households also included steward, chaplains, treasurer, accountants, chamberlain, carvers, servers, cupbearers, pages, and even chancellor. they were given wages and clothing allowances and had meals in the hall at tables according to their degree. the authority of the king's privy seal had become a great office of state which transmitted the king's wishes to the chancery and exchequer, rather than the king's personal instrument for sealing documents. now the king used a signet kept by his secretary as his personal seal. edward iv made the household office of secretary, who had custody the king's signet seal, a public office. the secretary was generally a member of the council. edward iv invented the benevolence, a gift wrung from wealthy subjects. king edward iv introduced an elaborate spy system, the use of the rack to torture people to give information, and other interferences with justice, all of which the tudor sovereigns later used. torture was used to discover facts, especially about coconspirators, rather than to elicit a confession, as on the continent. it was only used on prisoners held in the tower of london involved in state trials and could only be authorized by the king's closest councilors in virtue of the royal prerogative. the rack stretched the supine body by the wrists and legs with increasing agony at the joints until the limbs were dislocated. some victims were permanently crippled by it; others died on it. most told what they knew, often at the very sight of the rack. torture was forbidden in the common law, which favored an accusatorial system, in which the accuser had to prove guilt, rather than an inquisitional system, in which the accused had to prove innocence. edward iv applied martial law to ordinary cases of high treason by extending the jurisdiction of the politically- appointed high constable of england to these cases, thus depriving the accused of trial by jury. he executed many for treason and never restored their forfeited land to their families, as had been the usual practice. king richard iii prohibited the seizure of goods before conviction of felony. he also liberated the unfree villeins on royal estates. it was declared under parliamentary authority that there was a preference for the crown to pass to a king's eldest son, and to his male issue after him. formerly, a man could ascend to the throne through his female ancestry as well. - the law - the forcible entry statute is expanded to include peaceful entry with forcible holding after the justices arrived and to forcible holding with departure before the justices arrived. penalties are triple damages, fine, and ransom to the king. a forceful possession lasting three years is exempt. by common law, a tenant could not take away buildings or fixtures he built on land because it would be wasteful. this applied to agricultural fixtures, but not to other trade fixtures. also at common law, if a person had enjoyed light next to his property for at least years, no one could build up the adjacent land so that the light would be blocked. women of age fourteen or over shall have livery of their lands and tenements by inheritance without question or difficulty. purposely cutting out another's tongue or putting out another's eyes is a felony [penalty of loss of all property]. no one may keep swans unless he has lands and tenements of the estate of freehold to a yearly value of s., because swans of the king, lords, knights, and esquires have been stolen by yeomen and husbandmen. the wage ceiling for servants is: bailiff of agriculture s. d. per year, and clothing up to s., with meat and drink; chief peasant, a carter, chief shepherd s. and clothing up to s., with meat and drink; common servant of agriculture s., and clothing up to s. d.; woman servant s., and clothing up to s., with meat and drink; infant under fourteen years s., and clothing up to s., with meat and drink. such as deserve less or where there is a custom of less, that lesser amount shall be given. for laborers at harvest time: mower d. with meat and drink or d. without; reaper or carter: d. with or d. without; woman laborer and other laborers: d with and d. without. the ceiling wage rate for craftsmen per day is: free mason or master carpenter d. with meat & drink or d. without; master tiler or slater, rough mason, and mesne [intermediary] carpenter and other artificiers in building d. with meat and drink or d. without; every other laborer d. with meat and drink or d. without. in winter the respective wages were less: mason category: d. with or d. without; master tiler category: d. with or d. without; others: d. with or d. without meat and drink. any servant of agriculture who is serving a term with a master and covenants to serve another man at the end of this term and that other man shall notify the master by the middle of his term so he can get a replacement worker. otherwise, the servant shall continue to serve the first master. no man or woman may put their son or daughter to serve as an apprentice in a craft within any borough, but may send the child to school, unless he or she has land or rent to the value of s. per year. [because of scarcity of laborers and other servants of agriculture] no laborer may be hired by the week. masons may no longer congregate yearly, because it has led to violation of the statute of laborers. no games may be played by laborers because they lead to [gambling and] murders and robberies. apparel worn must be appropriate to one's status to preserve the industry of agriculture. the following list of classes shows the lowest class, which could wear certain apparel: . lords - gold cloth, gold corses, sable fur, purple silk . knights - velvet, branched satin, ermine fur . esquires and gentlemen with possessions to the value of s. per year, daughters of a person who has possessions to the value of , s. a year - damask, silk, kerchiefs up to s. in value. . esquires and gentlemen with possessions to the yearly value of s. pounds - fur of martron or letuse, gold or silver girdles, silk corse not made in the nation, kerchief up to s. d in value . men with possessions of the yearly value of s. excluding the above three classes - fustian, bustian, scarlet cloth in grain . men with possessions under the yearly value of s. excluding the first three classes - black or white lamb fur, stuffing of wool, cotton, or cadas. . yeomen - cloth up to the value of s., hose up to the value of s., a girdle with silver, kerchief up to d. . servants of agriculture, laborer, servant, country craftsman - none of the above clothes gowns and jackets must cover the entire trunk of the body, including the private parts. shoes may not have pikes over two inches. every town shall have at its cost a common balance with weights according to the standard of the exchequer. all citizens may weigh goods for free. all cloth to be sold shall be sealed according to this measure. there is a standard bushel of grain throughout the nation. there are standard measures for plain tile, roof tile, and gutter tile throughout the nation. no gold or silver may be taken out of the nation. the price of silver is fixed at s. for a pound, to increase the value of silver coinage, which has become scarce due to its higher value when in plate or masse. a designee of the king will inspect and seal cloth with lead to prevent deceit. cloth may not be tacked together before inspection. no cloth may be sold until sealed. heads of arrows shall be hardened at the points with steel and marked with the mark of the arrowsmith who made it, so they are not faulty. shoemakers and cordwainers may tan their leather, but all leather must be inspected and marked by a town official before it is sold. cordwainers shall not tan leather [to prevent deceitful tanning]. tanners who make a notorious default in leather which is found by a cordwainer shall make a forfeiture. defective embroidery for sale shall be forfeited. no fishing net may be fastened or tacked to posts, boats, or anchors, but may be used by hand, so that fish are preserved and vessels may pass. no one may import any articles which could be made in the nation, including silks, bows, woolen cloths, iron and hardware goods, harness and saddlery, except printed books. the following merchandise shall not be brought into the nation already wrought: woolen cloth or caps, silk laces, ribbons, fringes, and embroidery, gold laces, saddles, stirrups, harnesses, spurs, bridles, gridirons, locks, hammers, fire tongs, dripping pans, dice, tennis balls, points, purses, gloves, girdles, harness for girdles of iron steel or of tin, any thing wrought of any treated leather, towed furs, shoes, galoshes, corks, knives, daggers, woodknives, thick blunt needles, sheers for tailors, scissors, razors, sheaths, playing cards, pins, pattens [wooden shoes on iron supports worn in wet weather], pack needles, painted ware, forcers, caskets, rings of copper or of gilt sheet metal, chaffing dishes, hanging candlesticks, chaffing balls, mass bells, rings for curtains, ladles, skimmers, counterfeit felt hat moulds, water pitchers with wide spouts, hats, brushes, cards for wool, white iron wire, upon pain of their forfeiture. one half this forfeiture goes to the king and the other half to the person seizing the wares. no sheep may be exported, because being shorn elsewhere would deprive the king of customs. no wheat, rye, or barley may be imported unless the prices are such that national agriculture is not hurt. clothmakers must pay their laborers, such as carders and spinsters, in current coin and not in pins and girdles and the like. the term "freemen" in the magna carta includes women. the election of a knight from a county to go to parliament shall be proclaimed by the sheriff in the full county so all may attend and none shall be commanded to do something else at that time. election is to be by majority of the votes and its results will be sealed and sent to parliament. electors and electees to parliament must reside in the county or be citizens or burgesses of a borough. to be an elector to parliament, a knight must reside in the county and have a freehold of land or tenements there of the value of at least s. per year, because participation in elections of too many people of little substance or worth had led to homicides, assaults, and feuds. (these "yeomen" were about one sixth of the population. most former electors and every leaseholder and every copyholder were now excluded. those elected for parliament were still gentry chosen by substantial freeholders.) london ordinances forbade placing rubbish or dung in the thames river or any town ditch or casting water or anything else out of a window. the roads were maintained with tolls on carts and horses bringing victuals or grains into the city and on merchandise unloaded from ships at the port. no carter shall drive his cart more quickly when it is unloaded than when it is loaded. no pie bakers shall sell beef pies as venison pies, or make any meat pie with entrails. to assist the poor, bread and ale shall be sold by the farthing. desertion by a soldier is penalized by forfeiture of all land and property. the common law held that a bailee is entitled to possession against all persons except the owner of the bailed property. former justice sir thomas littleton wrote a legal textbook describing tenancies in dower; the tenures of socage, knight's service, serjeanty, and burgage; estates in fee simple, fee tail, and fee conditional; inheritance and alienation of land. for instance, "also, if feoffment be made upon such condition, that if the feoffor pay to the feofee at a certain day, etc., s. forty pounds of money, that then the feoffor may reenter, etc., in this case the feoffee is called tenant in mortgage, ... and if he doth not pay, then the land which he puts in pledge upon condition for the payment of the money is gone from him for ever, and so dead as to the tenant, etc." joint tenants are distinguished from tenants in common by littleton thus: "joint-tenants are, as if a man be seised of certain lands or tenements, etc., and thereof enfeoffeth two, or three, or four, or more, to have and to hold to them (and to their heirs, or letteth to them) for term of their lives, or for term of another's life; by force of which feoffment or lease they are seised, such are joint-tenants. ... and it is to be understood, that the nature of joint-tenancy is, that he that surviveth shall have solely the entire tenancy, according to such estate as he hath, ..." "tenants in common are they that have lands or tenements in fee-simple, fee-tail, or for term of life, etc., the which have such lands and tenements by several title, and not by joint title, and neither of them knoweth thereof his severalty, but they ought by the law to occupy such lands or tenements in common pro indiviso [undivided], to take the profits in common. ...as if a man enfeoff two joint-tenants in fee, and the one of them alien that which to him belongeth to another in fee, now the other joint-tenant and the alienee are tenants in common, because they are in such tenements by several titles, ..." there are legal maxims and customs of ancient origin which have become well established and known though not written down as statutes. some delineated by christopher st. germain in "doctor and student" in are: . the spouse of a deceased person takes all personal and real chattels of the deceased. . for inheritance of land, if there are no descendant children, the brothers and sisters take alike, and if there are none, the next blood kin of the whole blood take, and if none, the land escheats to the lord. land may never ascend from a son to his father or mother. . a child born before espousals is a bastard and may not inherit, even if his father is the husband. . if a middle brother purchases lands in fee and dies without heirs of his body, his eldest brother takes his lands and not the younger brother. the next possible heir in line is the younger brother, and the next after him, the father's brother. . for lands held in socage, if the heir is under , the next friend to the heir, to whom inheritance may not descend, shall have the ward of his body and lands until the heir is , at which time the heir may enter. . for lands held by knight's service, if the heir is under , then the lord shall have the ward and marriage of the heir until the heir is , if male, or (changed to in ), if female. when of age, the heir shall pay relief. . a lease for a term of years is a real chattel rather than a free tenement, and may pass without livery of seisin. . he who has possession of land, though it is by disseisin, has right against all men but against him who has right. . if a tenant is past due his rent, the lord may distrain his beasts which are on the land. . all birds, fowls, and wild beasts of the forest and warren are excepted out of the law and custom of property. no property may be had of them unless they are tame. however, the eggs of hawks and herons and the like belong to the man whose land they are on. . if a man steals goods to the value of d., or above, it is felony, and he shall die for it. if it is under the value of d., then it is but petit larceny, and he shall not die for it, but shall be punished at the discretion of the judges. this not apply to goods taken from the person, which is robbery, a felony punishable by death. . if the son is attainted [convicted of treason or felony with the death penalty and forfeiture of all lands and goods] in the life of the father, and after he purchases his charter of pardon of the king, and after the father dies; in this case the land shall escheat to the lord of the fee, insomuch that though he has a younger brother, yet the land shall not descend to him: for by the attainder of the elder brother the blood is corrupt, and the father in the law died without heir. . a man declared outlaw forfeits his profits from land and his goods to the king. . he who is arraigned upon an indictment of felony shall be admitted, in favor of life, to challenge thirty-five inquirers (three whole inquests would have thirty-six) peremptorily. with cause, he may challenge as many as he has cause to challenge if he can prove it. such peremptory challenge shall not be admitted in a private suit. . an accessory shall not be put to answer before the principal. . if a man commands another to commit a trespass, and he does it, the one who made the command is a trespasser. . the land of every man is in the law enclosed from other, though it lies in the open field, and a trespasser in it may be brought to court. . every man is bound to make recompense for such hurt as his beasts do in the growing grain or grass of his neighbor, though he didn't know that they were there. . if two titles are concurrent together, the oldest title shall be preferred. . he who recovers debt or damages in the king's court when the person charged is not in custody, may within a year after the judgment take the body of the defendant, and commit him to prison until he has paid the debt and damages. . if the demandant or plaintiff, hanging his writ (writ pending in court), will enter into the thing demanded, his writ shall abate. . by the alienation of the tenant, hanging the writ, or his entry into religion, or if he is made a knight, or she is a woman and takes a husband hanging the writ, the writ shall not abate. . the king may disseise no man and no man may disseise the king, nor pull any reversion or remainder out of him. - judicial procedure - the prohibition against maintenance was given penalties in of s. per person for a knight or lower giving livery of cloth or hats, and of s. for the receiver of such. a person who brought such suit to court was to be given half the penalty. the justices of assize and king's bench were authorized to inquire about such practices. the statute explicitly included ladies and any writing, oath, or promise as well as indenture. excepted were guilds, fraternities, and craftsmen of cities and boroughs which were founded on a good purpose, universities, the mayor and sheriffs of london, and also lords, knights, and esquires in time of war. a penalty of one year in prison without bail was given. in , there was a penalty of s. per livery to the giver of such, s. per month to the retainer or taker of such, and s. per month to the person retained. still this law was seldom obeyed. people took grievances outside the confines of the rigid common law to the chancellor, who could give equitable remedies under authority of a statute of (described in chapter ). the chancery heard many cases of breach of faith in the "use", a form of trust in which three parties were involved: the holder of land, feofees to whom the holder had made it over by conveyance or "bargain and sale", and the beneficiary or receiver of the profits of the land, who was often the holder, his children, relatives, friends, an institution, or a corporation. this system of using land had been created by the friars to get around the prohibition against holding property. lords and gentry quickly adopted it. the advantages of the use were that ) there was no legal restriction to will away the beneficial interest of the use although the land itself could not be conveyed by will; ) it was hard for the king to collect feudal incidents because the feoffees were often unknown ) the original holder was protected from forfeiture of his land in case of conviction of treason if the crown went to someone he had not supported. chancery gave a remedy for dishonest or defaulting feofees. chancery also provided the equitable relief of specific performance in disputes over agreements, for instance, conveyance of certain land, whereas the common law courts awarded only monetary damages by the writ of covenant. chancery ordered accounts to be made in matters of foreign trade because the common law courts were limited to accounts pursuant to transactions made within the nation. it also involved itself in the administration of assets and accounting of partners to each other. the chancellor took jurisdiction of cases of debt, detinue, and account which had been decided in other courts with oath-helping by the defendant. he did not trust the reliance on friends of the defendant swearing that his statement made in his defense was true. an important evidentiary difference between procedures of the chancery and the common law courts was that the chancellor could orally question the plaintiff and the defendant under oath. he also could order persons to appear at his court by subpoena [under pain of punishment, such as a heavy fine]. whereas the characteristic award of the common law courts was seisin of land or monetary damages, chancery often enjoined certain action. because malicious suits were a problem, the chancery identified such suits and issued injunctions against taking them to any court. the chancery was given jurisdiction by statute over men of great power taking by force women who had lands and tenements or goods and not setting them free unless they bound themselves to pay great sums to the offenders or to marry them. a statute also gave chancery jurisdiction over servants taking their masters' goods at his death. justices of the peace, appointed by the crown, investigated all riots and arrested rioters, by authority of statute. if they had departed, the justices certified the case to the king. the case was then set for trial first before the king and his council and then at the king's bench. if the suspected rioters did not appear at either trial, they could be convicted for default of appearance. if a riot was not investigated and the rioters sought, the justice of the peace nearest forfeited , s. justices of the peace were not paid. for complex cases and criminal cases with defendants of high social status, they deferred to the justices of assize, who rode on circuit once or twice a year. since there was no requirement of legal knowledge for a justice of the peace, many referred to the "boke of the justice of the peas" compiled about for them to use. manor courts still formally admitted new tenants, registered titles, sales of land and exchanges of land, and commutation of services, enrolled leases and rules of succession, settled boundary disputes, and regulated the village agriculture. all attorneys shall be examined by the royal justices for their learnedness in the law and, at their discretion, those that are good and virtuous shall be received to make any suit in any royal court. these attorneys shall be sworn to serve well and truly in their offices. attorneys may plead on behalf of parties in the hundred courts. a qualification for jurors was to have an estate to one's own use or one of whom other persons had estates of fee simple, fee tail, or freehold in lands and tenements, which were at least s. per year in value. in a plea of land worth at least s. yearly or a personal plea with relief sought at least s., jurors had to have land in the bailiwick to the value of at least s., because perjury was considered less likely in the more sufficient men. in criminal cases, there were many complaints made that the same men being on the grand assize and petty assize was unfair because prejudicial. so it became possible for a defendant to challenge an indictor for cause before the indictor was put on the petty assize. then the petty assize came to be drawn from the country at large and was a true petty or trial jury. jurors were separated from witnesses. justices of the peace were to have lands worth s. yearly, because those with less had used the office for extortion and lost the respect and obedience of the people. a sheriff was not to arrest, but to transfer indictments to the justices of the peace of the county. he had to reside in his bailiwick. the sheriff could be sued for misfeasance such as bribery in the king's court. impeachment was replaced with bill of attainder during the swift succession of parliaments during the civil war. this was a more rapid and efficient technique of bringing down unpopular ministers or political foes. there was no introduction of evidence, nor opportunity for the person accused to defend himself, nor any court procedure, as there was with impeachment. an example of a case of common law decided by court of king's bench is russell's case ( ) as follows: in the king's bench one thomas russell and alice his wife brought a writ of trespass for goods taken from alice while she was single. the defendant appeared and pleaded not guilty but was found guilty by a jury at nisi prius, which assessed the damages at pounds. before the case was next to be heard in the king's court an injunction issued out of the chancery to the plaintiffs not to proceed to judgment, on pain of pounds, and for a long time judgment was not asked for. then hussey cjkb. asked spelman and fincham, who appeared for the plaintiff if they wanted to ask for judgment according to the verdict. fincham [p]: we would ask for judgment, except for fear of the penalty provided for in the injunction, for fear that our client will be imprisoned by the chancellor if he disobeys. fairfax, jkb: he can ask for judgment in spite of the injunction, for if it is addressed to the plaintiff his attorney can ask for judgment, and vice versa. hussey, cjkb: we have consulted together on this matter among ourselves and we see no harm which can come to the plaintiff if he proceeds to judgment. the law will not make him pay the penalty provided in the injunction. if the chancellor wants to imprison him he must send him to the fleet prison, and, as soon as you are there you will inform us and we shall issue a habeas corpus returnable before us, and when you appear before us we shall discharge you, so you will not come to much harm, and we shall do all we can for you. nevertheless, fairfax said he would go to the chancellor and ask him if he would discharge the injunction. and they asked for judgment and it was held that they should recover their damages as assessed by the jury, but they would not give judgment for damages caused by the vexation the plaintiff suffered through the chancery injunction. and they said that if the chancellor would not discharge the injunction, they would give judgment if the plaintiff would ask for it. an example of a petition to chancery in the th century is hulkere v. alcote, as follows: to the right reverend father in god and gracious lord bishop of bath, chancellor of england, your poor and continual bedwoman lucy hulkere, widow of westminster, most meekly and piteously beseeches: that whereas she has sued for many years in the king's bench and in the common pleas for withholding diverse charters and evidences of land, leaving and delaying her dower of the manor of manthorpe in lincolnshire and also of the manor of gildenburton in northamptonshire, together with the withdrawing of her true goods which her husband gave her on his deathbed to the value of pounds and more, under record of notary, sued against harry alcote and elizabeth of the foresaid gildenburton within the same county of northampton. and by collusion and fickle counsel of the foresaid harry and elizabeth his mother there was led and shown for him within the common pleas a false release, sealed, to void and exclude all her true suit by record of true clerks and attorneys of the aforesaid common pleas. of the which false release proved she has a copy to show. [all this is] to her great hindrance and perpetual destruction unless she have help and remedy by your righteous and gracious lordship in this matter at this time. that it please your noble grace and pity graciously to grant a writ subpoena to command the foresaid henry alcote and elizabeth alcote to come before your presence by a certain day by you limited in all haste that they may come to westminster to answer to this matter abovesaid, for love of god and a deed of charity, considering graciously that the foresaid harry alcote, with another fellow of his affinity who is not lately hanged for a thief in franceled her into a garden at gildenburton and put her down on the ground, laying upon her body a board and a summer saddle and great stones upon the board, the foresaid harry alcote sitting across her feet and the other at her head for to have slain her and murdered her, and by grace of our lady her mother- in-law out walking heard a piteous voice crying and by her goodness she was saved and delivered, and otherwise would be dead. pledges to prosecute: john devenshire of berdevyle in essex and james kelom of london. returnable in michaelmas term. - - - chapter - - - - the times: - - henry tudor and other exiles defeated and killed richard iii on bosworth field, which ends the civil war of the roses between the lancaster and york factions. as king, henry vii restored order to the nation. he was readily accepted as king because he was descended from the lancaster royal line and he married a woman from the york royal line. henry was intelligent and sensitive. he weighed alternatives and possible consequences before taking action. he was convinced by reason on what plans to make. his primary strategy was enacting and enforcing statutes to shore up the undermined legal system, which includes the establishment of a new court: the court of the star chamber, to obtain punishment of persons whom juries were afraid to convict. it had no jury and no grand jury indictment. for speed and certainty, it tried people "ex officio": by virtue of its office. suspects were required to take an oath ex officio, by which they swore to truthfully answer all questions put to them. a man could not refuse to answer on the grounds of self-incrimination. the star chamber was the room in which the king's council had met since the s. in his reign of years, henry applied himself diligently to the details of the work of government to make it work well. he strengthened the monarchy, shored up the legal system to work again, and provided a peace in the land in which a renaissance of the arts and sciences, culture, and the intellectual life could flourish. the most prevalent problems were: murder, robbery, rape or forced marriage of wealthy women, counterfeiting of coin, extortion, misdemeanors by sheriffs and escheators, bribing of sheriffs and jurors, perjury, livery and maintenance agreements, idleness, unlawful plays, and riots. interference with the course of justice was not committed only by lords on behalf of their retainers; men of humbler station were equally prone to help their friends in court or to give assistance in return for payment. rural juries were intimidated by the old baronage and their armed retinues. juries in municipal courts were subverted by gangs of townsmen. justices of the peace didn't enforce the laws. the agricultural work of the nation had been adversely affected. henry made policy with the advice of his council and had parliament enact it into legislation. he dominated parliament by having selected most of its members. many of his council were sons of burgesses and had been trained in universities. he chose competent and especially trusted men for his officers and commanders of castles and garrison. the fact that only the king had artillery deterred barons from revolting. also, the baronial forces were depleted due to civil war of the roses. if henry thought a magnate was exercising his territorial power to the king's detriment, he confronted him with an army and forced him to bind his whole family in recognizances for large sums of money to ensure future good conduct. since the king had the authority to interpret these pledges, they were a formidable check on any activity which could be considered to be disloyal. the earl of kent, whose debts put him entirely at the king's mercy, was bound to "be seen daily once in the day within the king's house". henry also required recognizances from men of all classes, including clergy, captains of royal castles, and receivers of land. the higher nobility now consisted of about twenty families. the heavy fines by the star court put an end to conspiracies to defraud, champerty [an agreement with a litigant to pay costs of litigation for a share in the damages awarded], livery, and maintenance. the ties between the nobility and the justices of the peace had encouraged corruption of justice. so henry appointed many of the lesser gentry and attorneys as justices of the peace. also he appointed a few of his councilors as nonresident justices of the peace. there were a total of about thirty justices of the peace per county. their appointments were indefinite and most remained until retirement or death. henry instituted the yeomen of the guard to be his personal bodyguards night and day. many bills of attainder caused lords to lose their land to the king. most of these lords had been chronic disturbers of the peace. henry required retainers to be licensed, which system lasted until about . henry was also known to exhaust the resources of barons he suspected of disloyalty by accepting their hospitality for himself and his household for an extended period of time. henry built up royal funds by using every available procedure of government to get money, by maximizing income from royal estates by transferring authority over them from the exchequer to knowledgeable receivers, and from forfeitures of land and property due to attainders of treason. he also personally reviewed all accounts and initialed every page, making sure that all payments were made. he regularly ordered all men with an income of s. [ pounds] yearly from lands or revenue in hand to receive knighthoods, which were avoided by those who did not want to fight, or pay a high fee. as a result, the crown became rich and therefore powerful. henry's queen, elizabeth, was a good influence on his character. her active beneficence was a counteracting influence to his avaricious predisposition. when henry and his queen traveled through the nation, they often stopped to talk to the common people. they sometimes gave away money, such as to a man who had lost his hand. henry paid for an intelligent boy he met to go to school. henry had the first paper mill erected in the nation. he fostered the reading of books and the study of roman law, the classics, and the bible. he had his own library and gave books to other libraries. the age of entry to university was between and . it took four years' study of grammar, logic, and rhetoric to achieve the bachelor of arts degree and another five before a master could begin a specialized study of the civil law, canon law, theology, or medicine. arabic numbers replaced roman numerals, making easy multiplication and division possible. humanist studies were espoused by individual scholars at the three centers of higher learning: oxford university, cambridge university, and the inns of court in london. the inns of court attracted the sons of gentry and merchants pursuing practical and social accomplishments. the text of 'readings' to members of the inns survive from this time. in the legalistic climate of these times, attorneys were prosperous. the enclosure of land by hedges for sheep farming continued, especially by rich merchants who bought country land for this purpose. often this was land that had been under the plough. any villeins were given their freedom and they and the tenants at will were thrown off it immediately. that land held by copyholders of land who had only a life estate, was withheld from their sons. only freeholders and copyholders with the custom of the manor in their favor were secure against eviction. but they could be pressured to sell by tactics such as breeding rabbits or keeping geese on adjoining land to the detriment of their crops, or preventing them from taking their traditional short cuts across the now enclosed land to their fields. the real line of distinction between rural people was one of material means instead of legal status: free or unfree. on one extreme was the well-to-do yeoman farmer farming his own land. on the other extreme was the agricultural laborer working for wages. henry made several proclamations ordering certain enclosures to be destroyed and tillage to be restored. other land put to use for sheep breeding was waste land. there were three sheep to every person. the nearby woodlands no longer had wolves or lynx who could kill the sheep. bears and elk are also gone. there were still deer, wild boar, wildcats and wild cattle in vast forests for the lords to hunt. wood was used for houses, arms, carts, bridges, and ships. the villages were still isolated from each other, so that a visitor from miles away was treated as warily as a foreigner. most people lived and died where they had been born. a person's dialect indicated his place of origin. the life of the village still revolved around the church. in some parishes, its activities were highly organized, with different groups performing different functions. for example, the matrons looked after a certain altar; the maidens raised money for a chapel or saw to the gilding of the images; the older men collected money for church repair; and the younger men organized the church ales and the church plays. wills often left property or rents from leased land to the church. cows and sheep given could be leased out to villagers. buildings given could be leased out, turned over to the poor, used to brew ale or bake bread for church ales, or used in general as a place for church activities. church ales would usually a good source of income; alehouses would be closed during the ceremonies and parishioners would contribute malt for the ale and grain, eggs, butter, cheese, and fruits. the largest town, london, had a population of about , . other towns had a population less than , . the population was increasing, but did not reach the level of the period just before the black death. in most large towns, there were groups of tailors and hatmakers, glovers, and other leatherworkers. some towns had a specialization due to their proximity to the sources of raw materials, such as nails, cutlery, and effigies and altars. despite the spread of wool manufacturing to the countryside, there was a marked increase of industry and prosperity in the towns. the principal streets of the larger towns were paved with gravel. guild halls became important and imposing architecturally. a large area of london was taken up by walled gardens of the monasteries and large mansions. there were some houses of stone and timber and some mansions of brick and timber clustered around palaces. in these, bedrooms increased in number, with rich bed hangings, linen sheets, and bolsters. bedspreads were introduced. nightgowns were worn. fireplaces became usual in all the rooms. tapestries covered the walls. carpets were used in the private rooms. some of the great halls had tiled floors. the old trestle tables were replaced by tables with legs. benches and stools had backs to lean on. women and men wore elaborate headdresses. there are guilds of ironmongers, salters, and haberdashers [hats and caps]. on the outer periphery are mud and straw taverns and brothels. houses are beginning to be built outside the walls along the thames because the collapse of the power of the great feudal lords decreased the fear of an armed attack on london. the merchants introduced this idea of living at a distance from the place of work so that they could escape living in the narrow, damp, and dark lanes of the city and have more light and space. indeed no baronial army ever threatened the king again. east of london were cattle pastures, flour mills, bakers, cloth-fulling mills, lime burners, brick and tile makers, bell founders, and ship repairing. there was a drawbridge on the south part of london bridge for defense and to let ships through. water sports were played on the thames such as tilting at each other with lances from different boats. the tailors' and linen armorers' guild received a charter in from the king as the "merchant tailors" to use all wares and merchandise, especially wool cloth, as well wholesale as retail, throughout the nation. some schooling was now being made compulsory in certain trades; the goldsmiths' company made a rule that all apprentices had to be able to read and write. a yeoman was the second-rank person of some importance, below a knight, below a gentleman, below a full member of a guild. in london, it meant the journeyman or second adult in a small workshop. these yeomen had their own fraternities and were often on strike. some yeomen in the large london industries, e.g. goldsmiths, tailors, cloth workers, who had served an apprenticeship started their own businesses in london suburbs outside the jurisdiction of their craft to search them. the merchant adventurers created a london fellowship confederacy to make membership of their society and compliance with its regulations binding on all cloth traders and to deal with common interests and difficulties such as taxation, relations with rulers, and dangers at sea. they made and enforced trading rules, chartered fleets, and organized armed convoys when the seas were unsafe and coordinated policies with henry vii. membership could be bought for a large fee or gained by apprenticeship or by being the son of a member. foreign trade was revived because it was a period of comparative peace. the nation sought to sell as much as possible to foreign nations and to buy at little as possible and thereby increase its wealth in gold and silver, which could be used for currency. ships weighed tons and had twice the cargo space they had previously. their bows were more pointed and their high prows made them better able to withstand gales. the mariners' compass with a pivoting needle and circular dial with a scale was introduced. the scale gave precision to directions. ships had three masts. on the first was a square sail. on the second was a square sail with a small rectangular sail above it. on the third was a three cornered lateen sail. these sails make it possible to sail in almost any direction. this opened the seas of the world to navigation. at this time navigators kept their knowledge and expertise secret from others. adventurous seamen went on voyages of discovery, such as john cabot to north america in , following italian christopher columbus' discovery of the new world in . ferdinand magellan of portugal circumnavigated the world in , proving uncontrovertedly that the earth was spherical rather than flat. sailors overcame their fear of tumbling into one of the openings into hell that they believed were far out into the atlantic ocean and ceased to believe that a red sunset in the morning was due to a reflection from hell. seamen could venture forth into the darkness of the broad atlantic ocean with a fair expectation of finding their way home again. they gradually learned that there were no sea serpents or monsters that would devour foolhardy mariners. they learned to endure months at sea on a diet of salt beef, beans, biscuits, and stale water and the bare deck for a bed. but there were still mutinies and disobedient pilots. mortality rates among seamen were high. theologians had to admit that jerusalem was not the center of the world. there are more navy ships, and they have some cannon. the blast furnace was introduced in the iron industry. a blast of hot air was constantly forced from a stove into the lower part of the furnace which was heating at high temperature a mixture of the iron ore and a reducing agent that combined with the oxygen released. after the iron was extracted, it was allowed to harden and then reheated and hammered on an anvil to shape it and to force out the hard, brittle impurities. blast furnace heat was maintained by bellows worked by water wheels. alchemists sought to make gold from the baser metals and to make a substance that would give them immortality. there was some thought that suffocation in mines, caverns, wells, and cellars was not due to evil spirits, but to bad air such as caused by "exhalation of metals". in , german peter henlein invented the pocket watch and the mainspring inside it. there were morality plays in which the seven deadly sins: pride, covetousness, lust, anger, gluttony, envy, and sloth, fought the seven cardinal virtues: faith, hope, charity, prudence, temperance, justice, and strength, respectively, for the human soul. the play "everyman" demonstrates that every man can get to heaven only by being virtuous and doing good deeds in his lifetime. it emphasizes that death may come anytime to every man, when his deeds will be judged as to their goodness or sinfulness. card games were introduced. the legend of robin hood was written down. the commons gained the stature of the lords and statutes were regularly enacted by the "assent of the lords spiritual and temporal and the commons", instead of at the request of the commons. - the law - royal proclamations clarifying, refining or amplifying the law had the force of parliamentary statutes. in , he proclaimed that "forasmuch as many of the king our sovereign lord's subjects [have] been disposed daily to hear feigned, contrived, and forged tidings and tales, and the same tidings and tales, neither dreading god nor his highness, utter and tell again as though they were true, to the great hurt of divers of his subjects and to his grievous displeasure: therefore, in eschewing of such untrue and forged tidings and tales, the king our said sovereign lord straitly chargeth and commandeth that no manner person, whatsoever he be, utter nor tell any such tidings or tales but he bring forth the same person the which was author and teller of the said tidings or tales, upon pain to be set on the pillory, there to stand as long as it shall be thought convenient to the mayor, bailiff, or other official of any city, borough, or town where it shall happen any such person to be taken and accused for any such telling or reporting of any such tidings or tales. furthermore the same our sovereign lord straitly chargeth and commandeth that all mayors, bailiffs, and other officers diligently search and inquire of all such persons tellers of such tidings and tales not bringing forth the author of the same, and them set on the pillory as it is above said." he also proclaimed in that no one, except peace officers, may carry a weapon, e.g. bows, arrows, or swords, in any town or city unless on a journey. he proclaimed in that no one may refuse to receive silver pennies or other lawful coin as payment regardless of their condition as clipped, worn, thin, or old, on pain of imprisonment and further punishment. statutes included: lords holding castles, manors, lands and tenements by knight's service of the king shall have a writ of right for wardship of the body as well as of the land of any minor heir of a deceased person who had the use [beneficial enjoyment] of the land for himself and his heirs as if the land had been in the possession of the deceased person. and if such an heir is of age, he shall pay relief to the lord as if he had inherited possession of the land. an heir in ward shall have an action of waste against his lord as if his ancestor had died seised of the land. that is, lands of "those who use" shall be liable for execution of his debt and to the chief lord for his relief and heriot, and if he is a bondsman, they may be seized by the lord. the king tried to retain the benefits of feudal incidents on land by this statute of uses, but attorneys sought to circumvent it by drafting elaborate and technical instruments to convey land free of feudal burdens. any woman who has an estate in dower, or for a term of life, or in tail, jointly with her husband, or only to herself, or to her use, in any manors, lands, tenements, or other hereditaments of the inheritance or purchase of her husband, or given to the said husband and wife in tail, or for term of life, by any of the ancestors of the said husband, or by any other person seised to the use of the said husband, or of his ancestors, who, by herself or with any after taken husband; discontinue, alienate, release, confirm with warranty or, by collusion, allow any recovery of the same against them or any other seised to their use, such action shall be void. then, the person to whom the interest, title, or inheritance would go after the death of such woman may enter and possess such premises. this does not affect the common law that a woman who is single or remarried may give, sell, or make discontinuance of any lands for the term of her life only. all deeds of gift of goods and chattels made of trust, to the use of the giver [grantor and beneficiary of trust], to defraud creditors are void. it is a felony to carry off against her will, a woman with lands and tenements or movable goods, or who is heir-apparent to an ancestor. this includes taking, procuring, abetting, or knowingly receiving a woman taken against her will. a vagabond, idle, or suspected person shall be put in the stocks for three days with only bread and water, and then be put out of the town. if he returns, he shall spend six days in the stocks. (a few years later this was changed to one and three days, respectively.) every beggar who is not able to work, shall return to the hundred where he last dwelled, is best known, or was born and stay there. no one may take pheasants or partridges by net snares or other devices from his own warren [breeding ground], upon the freehold of any other person, or else forfeit s., one half to the owner of the land and the other half to the suer. no one may take eggs of any falcon, hawk, or swan out of their nest, whether it is on his land or any other man's land, on pain of imprisonment for one year and fine at the king's will, one half to the king, and the other half to the holder of the land, or owner of the swan. no man shall bear any english hawk, but shall have a certificate for any imported hawk, on pain for forfeiture of such. no one shall drive falcons or hawks from their customary breeding place to another place to breed or slay any for hurting him, or else forfeit s. after examination by a justice of the peace, one half going to the king and one half to the suer. any person without a forest of his own who has a net device with which to catch deer shall pay s. for each month of possession. anyone stalking a deer with beasts anywhere not in his own forest shall forfeit s. anyone taking any heron by device other than a hawk or long bow shall forfeit s. d. no one shall take a young heron from its nest or pay s. for each such heron. two justices may decide such an issue, and one tenth of the fine shall go to them. no man shall shoot a crossbow except in defense of his house, other than a lord or one having , s. of land because their use had resulted in too many deer being killed. (the longbow was not forbidden.) no beasts may be slaughtered or cut up by butchers within the walls of a town, or pay d. for every ox and d. for every cow or other beast, so that people will not be annoyed and distempered by foul air, which may cause them sickness. no tanner may be a currier [dressed, dyed, and finished tanned leather] and no currier may be a tanner. no shoemaker [cordwainer] may be a currier and no currier may be a shoemaker. no currier shall curry hides which have not been tanned. no tanner shall sell other than red leather. no tanner may sell a hide before it is dried. no tanner may tan sheepskins. no long bow shall be sold over the price of s. d. good wood for making bows may be imported without paying customs. no grained cloth of the finest making shall be sold for more than s., nor any other colored cloth for more than s. per yard, or else forfeit s. for every yard so sold. no hat shall be sold for more than d. and no cap shall be sold for more than s. d., or else forfeit s. for each so sold. silver may not be sold or used for any use but goldsmithery or amending of plate to make it good as sterling, so that there will be enough silver with which to make coinage. each feather bed, bolster, or pillow for sale shall be stuffed with one type of stuffing, that is, dry pulled feathers or with clean down alone, and with no sealed feathers nor marsh grass, nor any other corrupt stuffings. each quilt, mattress, or cushion for sale shall be stuffed with one type of stuffing, that is, clean wool, or clean flocks alone, and with no horsehair, marsh grass, neatshair, deershair, or goatshair, which is wrought in lime fats and gives off an abominable and contagious odor when heated by a man's body, on pain of forfeiture of such. salmon shall be sold by standard volume butts and barrels. large salmon shall be sold without any small fish or broken-bellied salmon and the small fish shall be packed by themselves only, or else forfeit s. d. herring shall be sold at standard volumes. the herring shall be as good in the middle and in every part of the package as at the ends of the package, or else forfeit s. d. eels shall be sold at standard volumes, and good eels shall not be mixed with lesser quality eels, or else forfeit s. the fish shall be packed in the manner prescribed or else forfeit s. d. for each vessel. fustians shall always be shorn with the long shear, so that it can be worn for at least two years. if an iron or anything else used to dress such injures the cloth so that it wears out after four months, s. shall be forfeited for each default, one half to the king and the other half to the suer. pewter and brass ware for sale shall be of the quality of that of london and marked by its maker, on pain of forfeiture of such, and may be sold only at open fairs and markets or in the seller's home, or else forfeit s. if such false ware is sold, its maker shall forfeit its value, one half to the king and one half to the searchers. anyone using false weights of such wares shall forfeit s., one half to the king and one half to the suer, or if he cannot pay this fine, to be put in the stocks until market day and then be put in the pillory all the market time. no alien nor denizen [foreigner allowed to reside in the nation with certain rights and privileges] may carry out of the nation any raw wool or any woolen cloth which has not been barbed, rowed, and shorn. silk ribbons, laces, and girdles of silk may not be imported, since they can be made in the nation. no one shall import wine into the nation, but on english ships, or else forfeit the wine, one half to the king and one half to the seizer of the wine. no one may take out of the nation any [male] horse or any mare worth more than s. s. or under the age of three years, upon pain of forfeiture of such. however, a denizen may take a horse for his own use and not to sell. this is to stop losing horses needed for defense of the nation and to stop the price of a horse from going up. freemen of london may go to fairs and markets with wares to sell, despite the london ordinance to the contrary. merchants residing in the nation but outside london shall have free access to foreign markets without exaction taken of more than s. sterling by the confederacy of london merchants, which have increased their fee so much, s., that merchants not in the confederacy have been driven to sell their goods in london for less than they would get at a foreign market. exacting more is punishable by a fine of s. and damages to the grieved party of ten times the excess amount taken. for the privilege of selling merchandise, a duty of scavage shall be taken of merchant aliens, but not of denizens. any town official who allows disturbing of a person trying to sell his merchandise because he has not paid scavage, shall pay a fine of s. coin clipped or diminished shall not be current in payment, but may be converted at the king's mint into plate or bullion. anyone refusing to take coins with only normal wear may be imprisoned by the mayor, sheriff, bailiff, constable or other chief officer. new coins, which have a circle or inscription around the outer edge, will be deemed clipped if this circle or inscription is interfered with. the penalty for usury is placement in the pillory, imprisonment for half a year, and a fine of s. (the penalty was later changed to one half thereof.) lawbooks in use at the inns of court included "the books of magna carta with diverse old statutes", "doctor and student" by st. germain, "grand abridgment" by fitzherbert, and "new natura brevium" by lombard. - judicial procedure - these changes in the judicial process were made by statute: the chancellor, treasurer, keeper of the king's privy seal, or two of them, with a bishop selected by them, and a temporal lord of the king's council selected by them, and the two chief justices of the king's bench shall constitute the court of the star chamber. it shall have the authority to call before it by writ or by privy seal anyone accused of "unlawful maintenances, giving of liveries, signs and tokens, and retainers by indentures, promises, oaths, writings, or otherwise embraceries of his subjects" and witnesses, and impose punishment as if convicted under due process of law. these laws shall now be enforced: if a town does not punish the murderer of a man murdered in the town, the town shall be punished. a town shall hold any man who wounds another in peril of death, until there is perfect knowledge whether the man hurt should live or die. upon viewing a dead body, the coroner should inquire of the killers, their abettors, and anyone present at the killing and certify these names. in addition, the murderer and accessories indicted shall be tried at the king's suit within a year of the murder, which trial will not be delayed until a private suit is taken. if acquitted at the king's suit, he shall go back to prison or let out with bail for the remainder of the year, in which time the slain man's wife or next of kin may sue. for every inquiry made upon viewing a slain body coroners shall be paid s. d. out of the goods of the slayer or from a town not taking a murderer, but letting him escape. if the coroner does not make inquiry upon viewing a dead body, he shall be fined s. to the king. if a party fails to appear for trial after a justice has taken bail from him, a record of such shall be sent to the king. up to , the star chamber heard many cases of forgery, perjury, riot, maintenance, fraud, libel, and conspiracy. it could mete out any punishment, except death or any dismemberment. this included life imprisonment, fines, pillory, whipping, branding, and mutilation. henry vii sat on it. if a justice of the peace does not act on any person's complaint, that person may take that complaint to another justice of the peace, and if there is no remedy then, he may take his complaint to a justice of assize, and if there is not remedy then, he may take his complaint to the king or the chancellor. there shall then be inquiry into why the other justices did not remedy the situation. if it is found that they were in default in executing the laws, they shall forfeit their commissions and be punished according to their demerits. justices of the peace shall make inquiry of all offenses in unlawful retaining, examine all suspects, and certify them to the king's bench for trial there or in the king's council, and the latter might also proceed against suspects on its own initiative on information given. perjury committed by unlawful maintenance, embracing, or corruption of officers, or in the chancery, or before the king's council, shall be punished in the discretion of the chancellor, treasurer, both the chief justices, and the clerk of the rolls. the star chamber, chancellor, king's bench and king and council have the power to examine all defendants, by oath or otherwise, to adjudge them convicted or attainted. they can also be found guilty by confession, examination, or otherwise. if a defendant denied doing the acts of which he is convicted, he was subject to an additional fine to the king and imprisonment. violations of statutes may be heard by the justices of assize or the justices of the peace, except treason, murder, and other felony. actions on the case shall be treated as expeditiously in the courts of the king's bench and common pleas as actions of trespass or debt. proclamation at four court terms of a levy of a fine shall be a final end to an issue of land, tenements, or other hereditaments and the decision shall bind persons and their heirs, whether they have knowledge or not of the decision, except for women-covert who were not parties, persons under the age of twenty-one, in prison, out of the nation, or not of whole mind, who are not parties. these may sue within five years of losing such condition. also, anyone not a party may claim a right, title, claim, or interest in the said lands, tenements, or other hereditaments at the time of such fine recorded, within five years after proclamations of the fine. a defendant who appeals a decision for the purpose of delaying execution of such shall pay costs and damages to the plaintiff for the delay. no sheriff, undersheriff, or county clerk shall enter any complaints in their books unless the complaining party is present. and no more complaints than the complaining party knows about shall be entered. the penalty is s. for each such false complaint, one half to the king and the other half to the suer after examination by a justice of the peace. this is to prevent extortion of defendants by false complaints. the justice shall certify this examination to the king, on pain of a fine of s. a bailiff of a hundred who does not do his duty to summon defendants shall pay a fine of s. for each such default, after examination by a justice of the peace. sheriffs' records of fines imposed and bailiffs' records of fines collected may be reviewed by a justice of the peace to examine for deceit. any sheriff allowing a prisoner to escape, whether from negligence or for a bribe, shall be fined, if the prisoner was indicted of high treason, at least , s. for each escape. however, if the prisoner was in their keeping because of a suspicion of high treason, the fine shall be at least s.; and if indicted of murder or petite treason, at least s.; and if suspected of murder or petite treason, s.; and if suspected of other felonies, s. petite treason was that by a wife to her husband or a man to his lord. any person not responding to a summons for jury service shall be fined d. for the first default, and s. for the second, and double for each subsequent default. a pauper may sue in any court and be assigned a attorney at no cost to him. a justice of the peace to whom has been reported hunting by persons disguised with painted faces or visors or otherwise, may issue a warrant for the sheriff or other county officer to arrest such persons and bring them before the justice. such hunting in disguise or hunting at night or disobeying such warrant is a felony. this is to stop large mobs of disguised people from hunting together and then causing riots, robberies, and murders. benefit of clergy may be used only once, since this privilege has made clerics more bold in committing murder, rape, robbery, and theft. however, there will be no benefit of clergy in the case of murder of one's immediate lord, master, or sovereign. (this begins the gradual restriction of benefit of clergy until it disappears. also, benefit of clergy was often disregarded in unpeaceful times.) for an issue of riot or unlawful assembly, the sheriff shall call jurors, each of lands and tenements at least s. of charter land or freehold or s. d. of copyhold or of both. for each default of the sheriff, he shall pay s. and if the jury acquits, then the justice, sheriff, and under-sheriff shall certify the names of any jurors maintained or embraced and their misdemeanors, or else forfeit s. any person proved to be a maintainer or embracer shall forfeit s. to the king and be committed to ward. the principal leaders of any riot or unlawful assembly shall be imprisoned and fined and be bound to the peace with sureties at a sum determined by the justices of the peace. if the riot is by forty people or heinous, the justices of peace shall certify such and send the record of conviction to the king. the king's steward, treasurer, and comptroller have authority to question by twelve discreet persons any servant of the king about making any confederacies, compassings, conspiracies, or imaginations with any other person to destroy or murder the king or one of his council or a lord. trial shall be by twelve men of the king's household and punishment as by felony in the common law. when a land holder enfeoffs his land and tenements to people unknown to the remainderman in tail, so that he does not know who to sue, he may sue the receiver of the profits of the land and tenements for a remedy. and the receivers shall have the same advantages and defenses as the feoffees or as if they were tenants. and if any deceased person had the use for himself and his heirs, then any of his heirs shall have the same advantages and defenses as if his ancestor had died seised of the land and tenements. and all recoveries shall be good against all receivers and their heirs, and the feofees and their heirs, and the co- feoffees of the receivers and their heirs, as though the receivers were tenants indeed, or feofees to their use, or their heirs of the freehold of the land and tenements. if a person feoffs his land to other persons while retaining the use thereof for himself, it shall be treated as if he were still seised of the land. thus, relief and heriot will still be paid for land in socage. and debts and executions of judgments may be had upon the land and tenements. the penalty for not paying customs is double the value of the goods. the town of london shall have jurisdiction over flooding and unlawful fishing nets in that part of the thames river that flows next to it. the city of london shall have jurisdiction to enforce free passage of boats on the thames river in the city, interruption of which carries a fine of s., two-thirds to the king and one third to the suer. jurors impaneled in london shall be of lands, tenements, or goods and chattels, to the value of s. and if the case concerns debt or damages at least s, the jurors shall have lands, tenements, goods, or chattels, to the value of s. this is to curtail the perjury that has gone on with jurors of little substance, discretion, and reputation. a party grieved by a false verdict of any court in london may appeal to the hustings court of london, which hears common pleas before the mayor and aldermen. each of the twelve alderman shall pick from his ward four jurors of the substance of at least , s. to be impaneled. if twenty-four of them find that the jurors of the petty jury has given an untrue verdict, each such juror shall pay a fine of at least s. and imprisonment not more than six months without release on bail or surety. however, if it is found that the verdict was true, then the grand jury may inquire if any juror was bribed. if so, such juror bribed and the defendant who bribed him shall each pay ten times the amount of the bribe to the plaintiff and be imprisoned not more than six months without release on bail or surety. other changes in the judicial process were made by court decision. for instance, the royal justices decided that only the king could grant sanctuary for treason and not the church. after this, the church withdrew the right of sanctuary from second time offenders. the king's council has practically limited itself to cases in which the state has an interest, especially the maintenance of public order. chancery became an independent court rather than the arm of the king and his council. in chancery and the king's bench, the intellectual revival brought by humanism inspires novel procedures to be devised to meet current problems in disputed titles to land, inheritance, debt, breach of contract, promises to perform acts or services, deceit, nuisance, defamation, and the sale of goods. a new remedy is specific performance, that is, performance of an act rather than money damages. evidence is now taken from witnesses. various courts had overlapping jurisdiction. for instance, trespass could be brought in the court of common pleas because it was a civil action between two private persons. it could also be brought in the court of the king's bench because it broke the king's peace. it was advantageous for a party to sue for trespass in the king's court because there a defendant could be made to pay a fine to the king or be imprisoned, or declared outlaw if he did not appear at court. a wrongful step on the defendant's land, a wrongful touch to his person or chattels could be held to constitute sufficient force and an adequate breach of the king's peace to sustain a trespass action. a new form of action is trespass on the case, which did not require the element of force or of breach of the peace that the trespass offense requires. trespass on the case [or "case" for short] expands in usage to cover many types of situations. stemming from it is "assumpsit", which provided damages for breach of an oral agreement and a written agreement without a seal. parliament's supremacy over all regular courts of law was firmly established and it was called "the high court of parliament", paradoxically, since it came to rarely function as a law court. the humanist intellectual revival also caused the church courts to try to eliminate contradictions with state law, for instance in debt, restitution, illegitimacy, and the age of legal majority. the bishop's court in london had nine offenders a week by . half of these cases were for adultery and sexual offenses, and the rest were for slander, blasphemy, missing church services, and breach of faith. punishment was penance by walking barefoot before the cross in the sunday procession dressed in a sheet and holding a candle. - - - chapter - - - - the times: - - renaissance humanism came into being in the nation. in this development, scholars in london, oxford, and cambridge emphasized the value of classical learning, especially platonism and the study of greek literature as the means of better understanding and writing. they studied the original greek texts and became disillusioned with the filtered interpretations of the church, for example of the bible and aristotle. there had long been displeasure with the priests of the church. they were supposed to preach four times yearly, visit the sick, say the daily liturgies, and hear confessions at least yearly. but there were many lapses. many were not celibate, and some openly lived with a woman and had children. complaints about them included not residing within their parish community, doing other work such as raising crops, and taking too much in probate, mortuary fees, and marriage fees. probate fees had risen from at most s. to s. in the last hundred years. mortuary fees ranged from / to / of a deceased person's goods. sanctuary was abused. people objected to the right of arrest by ecclesiastical authorities. also, most parish priests did not have a theology degree or even a bachelor's degree, as did many laymen. in fact, many laymen were better educated than the parish priests. no one other than a laborer was illiterate in the towns. humanist grammar [secondary] schools were established in london by merchants and guilds. in , the founder and dean of st. paul's school placed its management in the hands of london "citizens of established reputation" because he had lost confidence in the good faith of priests and noblemen. the sons of the nobility, attorneys, and merchants were starting to go to grammar school now instead of being taught at home by a tutor. at school, they mingled with sons of yeomen, farmers, and tradesmen, who were usually poor. the usual age of entry was six or seven. classical latin and greek were taught and the literature of the best classical authors was read. secondary education teachers were expected to know latin and have studied the ancient philosophers, history, and geography. the method of teaching was for the teacher to read textbooks to the class from a prepared curriculum. the students were taught in latin and expected not to speak english in school. they learned how to read and to write latin, to develop and amplify a theme by logical analysis, and to essay on the same subject in the narrative, persuasive, argumentative, commending, consoling, and inciting styles. they had horn books with the alphabet and perhaps a biblical verse on them. this was a piece of wood with a paper on it held down by a sheet of transparent horn. they also learned arithmetic (solving arithmetical problems and casting accounts). disobedience incurred flogging by teacher as well as by parents. spare the rod and spoil the child was the philosophy. schools now guarded the morals and behavior of students. there were two week vacations at christmas and at easter. royal grammar books for english and latin were proclaimed by henry in to be the only grammar book authorized for students. in , he proclaimed a certain primer of prayers in english to be the only one to be used by students. the first school of humanist studies arose in oxford with the foundation of corpus christi college in by bishop richard fox. it had the first permanent reader or professor in greek. the professor of humanity was to extirpate all barbarisms by the study of cicero, sallust, valerius maximus, and quintilian. the third reader of theology was to read texts of the holy fathers but not those of their commentators. oxford university was granted a charter which put the greater part of the town under control of the chancellor and scholars. the mayor of oxford was required to take an oath at his election to maintain the privileges and customs of the university. roman law and other regius professorships were founded by the king at oxford and cambridge. teaching of undergraduates was the responsibility of the university rather than of the colleges, though some colleges had live-in teachers as students. most colleges were exclusively for graduate fellows, though this was beginning to change. the university took responsibility for the student's morals and behavior and tutors sometimes whipped the undergraduates. for young noblemen, a more important part of their education than going to university was travel on the continent with a tutor. this exposure to foreign fields was no longer readily available through war or pilgrimage. the purpose was practical - to learn about foreign people and their languages, countries, and courts. knowledge of the terrain, resources, prosperity, and stability of their countries was particularly useful to a future diplomatic or political career. the physicians of london were incorporated to oversee and govern the practice of medicine. a faculty of physicians was established at oxford and cambridge. a royal college of physicians was founded in london in by the king's physician. the college of physicians taught more practical medicine and anatomy than the universities. only graduates of the college of physicians or of oxford or cambridge were allowed to practice medicine or surgery. medical texts were hippocrates and galen. these viewed disease as only part of the process of nature without anything divine. they stressed empiricism, experience, collections of facts, evidences of the senses, and avoidance of philosophical speculations. some observations of hippocrates were: �when sleep puts an end to delirium, it is a hopeful sign.� �when on a starvation diet, the patient should not be allowed to become fatigued.� �old men usually have less illness than young ones, but such as they have last, as a rule, till death.� �pleurisy, pneumonia, colds, sore throat, and headache are more likely to occur during winter seasons.� �when one oversleeps, or fails to sleep, the condition suggests disease." hippocrates had asserted that madness was simply a disease of the brain and then galen had agreed and advocated merciful treatment of the insane. galen's great remedies were proper diet, exercise, massage, and bathing. he taught the importance of a good water supply and good drainage. he advised that baking bread in a large oven was superior to cooking in a small oven, over ashes, or in a pan in wholesomeness, digestibility, and flavor. greek medicinal doctrines were assumed, such as that preservation of the health of the body was dependent on air, food, drink, movement and repose, sleeping and waking, excretion and retention, and the passions. it was widely known that sleep was restorative and that bad news or worry could spoil one's digestion. an italian book of showed that post-mortem examinations could show cause of death by gallstones, heart disease, thrombosis of the veins, or abscesses. in began the practice of giving bodies of hanged felons to surgeons to dissect. this was to deter the commission of felony. there was some feeling that dissection was a sacrilege, that the practice of medicine was a form of sorcery, and that illness and disease should be dealt with by prayer and/or atonement because caused by sin, the wrath of god, or by the devil. food that was digested was thought to turn into a vapor which passed along the veins and was concreted as blood, flesh, and fat. after , there was a book listing hundreds of drugs with preparation directions, but their use and application was by trial and error. flemish physician andreas vesalius, secretly dissected human corpses, finding them hanging on public gibbets or competing with dogs for those incompletely buried in cemeteries. he begged doctors to allow him to examine the bodies of their fatal cases. he ingratiated himself with judges who determined the time and place of execution of criminals. in he published the first finely detailed description of human anatomy. in it, there was no missing rib on one side of man, and this challenged the theory of the woman eve having been made from a rib of the man adam. in the s, ambroise pare from france, a barber-surgeon who was the son of a servant, was an army surgeon. wounds at this time were treated with boiling oil and spurting vessels were closed by being seared with a red-hot iron. after he ran out of boiling oil, he observed that the soldiers without this treatment were healing better than those with this treatment. so he advocated ceasing the practice of cauterizing wounds. he also began tying arteries with cord to stop their bleeding after amputation many other surgical techniques. students were beginning to read for the bar by their own study of the newly available printed texts, treatises, and collections of statute law and of cases, instead of listening in court and talking with attorneys. in , anthony fitzherbert wrote "boke of husbandry", which set forth the most current methods of arable farming, giving details of tools and equipment, advice on capital outlay, methods of manuring, draining, ploughing, and rick-building. it was used by many constantly, and was often carried around in the pocket. this began a new way to disseminate new methods in agriculture. he also wrote a "boke of surveying", which relied on the perch rod and compass dial, and gave instruction on how to set down the results of a survey. in , gemma frisius laid down the principles of topographical survey by triangulation. this improved the quality of surveys and produced accurate plots. geoffrey chaucer's "canterbury tales" was a popular book. through chaucer, london english became a national standard and the notion of "correct pronunciation" came into being. the discoveries and adventures of amerigo vespucci, a portuguese explorer, were widely read. the north and south american continents were named for him. london merchant guilds began to be identified mainly with hospitality and benevolence instead of being trading organizations. twelve great companies dominated city politics and effectively chose the mayor and aldermen. they were, in order of precedence, mercers, grocers, drapers, fishmongers, goldsmiths, skinners, tailors, haberdashers, ironmongers, salters, vintners, and the clothworkers (composed from leading fullers and shearmen). the leading men of these guilds were generally aldermen and the guilds acted like municipal committees of trade and manufactures. then they superintended the trade and manufactures of london much like a government department. they were called livery companies and categorized their memberships in three grades: mere membership, livery membership, and placement on the governing body. livery members were distinguished by having the clothing of the brotherhood [its livery] and all privileges, and proprietary and municipal rights, in the fullest degree. they generally had a right to a place at the company banquets. they were invited by the governing body, as a matter of favor, to other entertainments. these liverymen were usually those who had bought membership and paid higher fees because they were richer. their pensions were larger than those of mere members. those with mere membership were freemen who had only the simple freedom of the trade. the masters were usually householders. the journeymen, yeomanry, bachelors were simple freemen. most of these companies had almshouses attached to their halls for the impoverished, disabled, and elderly members and their widows and children. for instance, many members of the goldsmiths had been blinded by the fire and smoke of quicksilver and some members had been rendered crazed and infirm by working in that trade. the freedom and rights of citizenship of the city could only be obtained through membership in a livery company. a lesser guild, the leathersellers, absorbed the glovers, pursers, and pouchmakers. these craftsmen then became wage earners of the leathersellers, but others of these craftsmen remained independent. before, the whittawyers, who treated horse, deer, and sheep hides with alum and oil, had become wage earners for the skinners. londoners went to the fields outside the city for recreation and games. when farmers enclosed some suburban common fields in , a crowd of young men marched out to them and, crying "shovels and spades", uprooted the hedges and filled in the ditches, thus reclaiming the land for their traditional games. the last major riot in london was aroused by a speaker on may day in when a thousand disorderly young men, mostly apprentices, defied the curfew and looted shops and houses of aliens. a duke with two thousand soldiers put it down in mid-afternoon, after which the king executed fifteen of the rioters. many english migrated to london. there were ambitious young men and women hopeful of betterment through employment, apprenticeship, higher wages, or successful marriage. on the other hand, there were subsistence migrants forced to leave their homes for food, work, or somewhere to live. there was much social mobility. for instance, between and , of persons admitted as freemen of london, were the sons of gentlemen, the sons of yeomen, and the sons of farm workers. london grew in population about twice as fast as the nation. the fortunes of landowners varied; some went into aristocratic debt by ostentatiously spending on building, clothes, food, and drink, and some became indebted by inefficient management. some had to sell their manors and dismiss their servants. there are wards of london as of . this is the number for the next four centuries. each ward has an alderman, a clerk, and a chief constable. there are also in each ward about to elected officials including prickers, benchers, blackbootmen, fewellers [keepers of greyhounds], scribes, a halter-cutter, introducers, upperspeakers, under speakers, butlers, porters, inquestmen, scavengers, constables, watchmen, a beadle, jurymen, and common councilmen. the wardmote had inquest jurisdiction over immorality or bad behavior such as vagrancy, delinquency, illegitimacy, and disputes. this contributed greatly to social stability. in , henry ordered the london brothels closed. a small gaol was established in the clink district of southwark, giving the name "clink" to any small gaol. london ordinances required journeymen to work from a.m. to p.m. in winter, with a total of minutes breaks for breakfast, dinner, and an afternoon drink, for d. in the summer they had to work for two hours longer for d. at its peak in the s the court employed about gentlemen, which was about half the peerage and one-fifth of the greater gentry. henry issued a proclamation ordering noblemen and gentlemen in london not employed by the court to return to their country homes to perform their service to the king. though there was much agreement on the faults of the church and the need to reform it, there were many disagreements on what philosophy of life should take the place of church teachings. the humanist thomas more was a university trained intellectual. his book "utopia", idealized an imaginary society living according to the principles of natural virtue. in it, everything is owned in common and there is no need for money. all believe that there is a god who created the world and all good things and who guides men, and that the soul is immortal. but otherwise people choose their religious beliefs and their priests. from this perspective, the practices of current christians, scholastic theologians, priests and monks, superstition, and ritual look absurd. he encouraged a religious revival. aristotle's position that virtuous men would rule best is successfully debated against plato's position that intellectuals and philosophers would be the ideal rulers. more believed the new humanistic studies should be brought to women as well as to men. he had tutors teach all his children latin, greek, logic, theology, philosophy, mathematics, and astronomy from an early age. his eldest daughter margaret became a recognized scholar and translated his treatise on the lord's prayer. other high class women became highly educated. they voiced their opinions on religious matters. in the s, the duchess of suffolk spoke out for reform of the clergy and against images, relics, shrines, pilgrimages, and services in latin. she and the countess of sussex supported ministers and established seminaries for the spread of the reformed faith. more pled for proportion between punishment and crime. he urged that theft no longer be punished by death because this only encouraged the thief to murder his victim to eliminate evidence of the theft. he opined that the purpose of punishment was to reform offenders. he advocated justice for the poor to the standard of justice received by the rich. erasmus, a former monk, visited the nation for a couple of years and argued that reason should prevail over religious belief. he wrote the book "in praise of folly", which noted man's elaborate pains in misdirected efforts to gain the wrong thing. for instance, it questioned what man would stick his head into the halter of marriage if he first weighed the inconveniences of that life? or what woman would ever embrace her husband if she foresaw or considered the dangers of childbirth and the drudgery of motherhood? childhood and senility are the most pleasant stages of life because ignorance is bliss. old age forgetfulness washes away the cares of the mind. a foolish and doting old man is freed from the miseries that torment the wise and has the chief joy of life: garrulousness. the seekers of wisdom are the farthest from happiness; they forget the human station to which they were born and use their arts as engines with which to attack nature. the least unhappy are those who approximate the naiveness of the beasts and who never attempt what is beyond men. as an example, is anyone happier than a moron or fool? their cheerful confusion of the mind frees the spirit from care and gives it many-sided delights. fools are free from the fear of death and from the pangs of conscience. they are not filled with vain worries and hopes. they are not troubled by the thousand cares to which this life is subject. they experience no shame, fear, ambition, envy, or love. in a world where men are mostly at odds, all agree in their attitude towards these innocents. they are sought after and sheltered; everyone permits them to do and say what they wish with impunity. however, the usual opinion is that nothing is more lamentable than madness. the christian religion has some kinship with folly, while it has none at all with wisdom. for proof of this, notice that children, old people, women, and fools take more delight than anyone else in holy and religious things, led no doubt solely by instinct. next, notice that the founders of religion have prized simplicity and have been the bitterest foes of learning. finally, no people act more foolishly than those who have been truly possessed with christian piety. they give away whatever is theirs; they overlook injuries, allow themselves to be cheated, make no distinction between friends and enemies, shun pleasure, and feast on hunger, vigils, tears, labors, and scorn. they disdain life, and utterly prefer death. in short, they have become altogether indifferent to ordinary interests, as if their souls lived elsewhere and not in their bodies. what is this, if not to be mad? the life of christians is run over with nonsense. they make elaborate funeral arrangements, with candles, mourners, singers, and pallbearers. they must think that their sight will be returned to them after they are dead, or that their corpses will fall ashamed at not being buried grandly. christian theologians, in order to prove a point, will pluck four or five words out from different places, even falsifying the sense of them if necessary, and disregard the fact that their context was relevant or even contradicted their points. they do this with such brazen skill that our attorneys are often jealous of them. attorney christopher st. german wrote the legal treatise "doctor and student", in which he deems the law of natural reason to be supreme and eternal. the law of god and the law of man, as enunciated by the church and royalty, merely supplement the law of natural reason and may change from time to time. examples of the law of reason are: it is good to be loved. evil is to be avoided. do onto others as you would have them do unto you. do nothing against the truth. live peacefully with others. justice is to be done to every man. no one is to wrong another. a trespasser should be punished. from these is deduced that a man should love his benefactor. it is lawful to put away force with force. it is lawful for every man to defend himself and his goods against an unlawful power. like his father, henry viii dominated parliament. he used this power to reform the church of england in the 's. the protestant reformation cause, started in germany in by martin luther posting his thesis, had become identified with henry's efforts to have his marriage of eighteen years to the virtuous catherine annulled so he could marry a much younger woman: anne. his purported reason was to have a son. the end of his six successive wives was: annulled, beheaded, died; annulled, beheaded, survived. henry viii was egotistical, arrogant, and self- indulgent. this nature allowed him to declare himself the head of the church of england instead of the pope. henry used and then discarded officers of state e.g. by executing them for supposed treason. one such was thomas wolsey, the son of a town grazier [one who pastures cattle and rears them for market] and butcher, who was another supporter of classical learning. he rose through the church, the gateway to advancement in a diversity of occupations of clergy such as secretary, librarian, teacher, attorney, doctor, author, civil servant, diplomat, and statesman. he was a court priest when he aligned himself with henry, both of whom wanted power and glory and dressed extravagantly. but he was brilliant and more of a strategist than henry. wolsey called himself a reformer and started a purge of criminals, vagrants and prostitutes within london, bringing many before the council. but most of his reforming plans were not brought to fruition, but ended after his campaign resulted in more power for himself. wolsey rose to be chancellor to the king and archbishop of york. as the representative of the pope for england, he exercised almost full papal authority there. but he controlled the church in england in the king's interest. he was second only to the king and he strengthened the crown by consolidating power and income that had been scattered among nobles and officeholders. he also came to control the many courts. wolsey centralized the church in england and dissolved the smaller monasteries, the proceeds of which he used to build colleges at oxford and his home town. he was an impartial and respected justice. when wolsey was not able to convince the pope to give henry an annulment of his marriage, henry dismissed him and took his property, shortly after which wolsey died. the king replaced wolsey as chancellor with thomas more, after whom he made thomas cromwell chancellor. cromwell, the son of a clothworker/blacksmith/brewer/innkeeper, was a self-taught attorney, arbitrator, merchant, and accountant. like wolsey, he was a natural orator. he drafted and had passed legislation that created a new church of england. he had all men swear an oath to the terms of the succession statute. thomas more was known for his honesty and was a highly respected man. more did not yield to henry's bullying for support for his statute declaring the succession to be vested in the children of his second marriage, and his statute declaring himself the supreme head of the church of england, instead of the pope. he did not expressly deny this supremacy statute, so was not guilty of treason under its terms. but silence did not save him. he was attainted for treason on specious grounds and beheaded. his conviction rested on the testimony of one perjured witness, who misquoted more as saying that parliament did not have the power to require assent to the supremacy statute because it was repugnant to the common law of christendom. henry ruled with an iron fist. in , he issued a proclamation that "any rioters or those in an unlawful assembly shall return to their houses" or "we will proceed against them with all our royal force and destroy them and their wives and children." in , he proclaimed that anyone hurting or maiming an officer while trying to make an arrest "shall lose and forfeit all their lands, goods, and chattel" and shall suffer perpetual imprisonment. moreover, if one murdered such an officer, he would suffer death without privilege of sanctuary or of clergy. in , he proclaimed that there would be no shooting by handgun except on a shooting range. henry had parliament pass bills of attainder against many people. for the first time, harsh treatment of prisoners in the tower, such as placement in dungeons with little food, no bed, and no change of clothes, became almost a matter of policy. through his host of spies, cromwell heard what men said to their closest friends. words idly spoken were distorted into treasonable utterances. fear spread through the people. silence was a person's only possibility of safety. cromwell developed a technique for the management of the house of commons which lasted for generations. he promulgated books in defense of royal spiritual authority, which argued that canon law was not divine but merely human and that clerical authority had no foundation in the bible. a reformed english bible was put in all parish churches. reformers were licensed to preach. cromwell ordered sermons to be said which proclaimed the supremacy of the king. he instituted registers to record baptisms, marriages, and burials in every county, for the purpose of reducing disputes over descent and inheritance. he dissolved all the lesser monasteries. when cromwell procured a foreign wife for henry whom henry found unattractive, he was attainted and executed. henry now reconstructed his council to have a fixed membership, an official hierarchy based on rank, a secretariat, an official record, and formal powers to summon individuals before it by legal process. because it met in the king's privy lodgings, it was called the "privy council". it met daily instead of just during the terms of the westminster courts from late autumn to early summer. it communicated with the king through intermediaries, of whom the most important was the king's secretary. because it was a court council, part of it traveled with the king, while the other part conducted london business. when henry went to war in france, part of the council went with him, and part of it stayed to attend the queen regent. thomas cranmer, archbishop of canterbury, wrote the first english common book of prayer. with its use beginning in , church services were to be held in english instead of latin. the celebration of the lord's supper was a communion among the parishioners and minister all sharing the wine and bread. it replaced the mass, in which the priests were thought to perform a miraculous change of the substance of bread and wine into the body and blood of christ, which the priest then offered as a sacrifice for remission of pain or guilt. this reflected the blood sacrifice of christ dying on the cross. in the mass, only the priests drank the wine. the mass, miracles, the worship of saints, prayers for souls in purgatory, and pilgrimages to shrines such as that of thomas becket, were all to be discontinued. imprisonment or exile rather than death was made the penalty for heresy and blasphemy, and also for adultery. after the king dissolved the greater monasteries, he took and sold their ornaments, silver plate and jewelry, lead from roofs of their buildings, and finally much of the land itself. many maps of manors and lands were made at this time. three monasteries were converted into the first three treating hospitals in london, one for the diseased, one for the poor, and one, bethlehem (or "bedlam" for short), for the mentally ill. but there were still many poor, sick, blind, aged, and impotent people in the streets since the closure of the monasteries. in , there were , people in need of relief, including orphans, sick or aged, poor men overburdened with their children, decayed householders, and idle vagabonds. the poor often begged at parishes, where they spread disease. london then set up a poor relief scheme. the bridewell was established to set to work the idle, vagabonds, and prostitutes making feather bed ticks and wool-cards, drawing of wire, carding, knitting, and winding of silk. parishes were required to give money for the poor in . other towns followed london's lead in levying a poor rate. henry used the proceeds from the sale of the monasteries for building many new palaces and wood ships for his navy. in war, these navy ships had heavy guns which could sink other ships. in peace time, these ships were hired out to traders. large ships were constructed in docks, made partly by digging and partly by building walls. in , henry issued a proclamation ordering all vagabonds, ruffians, masterless men, and evil-disposed persons to serve him in his navy. the former land of the monasteries, about % of the country's land, was sold and resold, usually to great landowners, or leased. title deeds became important as attorneys sought the security that title could give. some land went to entrepreneurial cloth manufacturers, who converted the buildings for the manufacture of cloth. they bought the raw wool and hired craftsmen for every step of the manufacturing process to be done in one continuous process. this was faster than buying and selling the wool material between craftsmen who lived in different areas. also, it was more efficient because the amount of raw wool bought could be adjusted to the demand for cloth. many landowners now could live in towns exclusively off the rents of their rural land. rents were increased so much that tenants could not pay and were evicted. they usually became beggars or thieves. much of their former land was converted from crop raising to pasture for large herds of sheep. arable farming required many workers, whereas sheep farming required only one shepherd and herdsman. there were exceptional profits made from the export of wool cloth. but much raw wool was still exported. its price went up from s. d. per tod [about pounds] in to s. d. in . villeinage was now virtually extinct. a lord could usually claim a small money-rent from the freeholder, sometimes a relief when his land was sold or passed at death, and occasionally a heriot from his heir. there was steady inflation. landlords made their leases short term so that they could raise rents as prices rose. copyholders gradually acquired a valuable right in their holdings; their rent became light - less that a shilling an acre. at least % of the population still lived in the country. rich traders built town or country houses in which the emphasis was on comfort and privacy. there was more furniture, bigger windows filled with glass, thick wallpaper, and formal gardens. use of thick, insulating wallpaper rose with the rise of paper mills. it was stenciled, hand-painted, or printed. some floors were tiled instead of stone or wood. they were still strewn with straw. the owners ate in a private dining room and slept in their own rooms with down quilts. their soap was white. they had clothing of white linen and white wool, leather slippers, and felt hats. men wore long tunics open at the neck and filled in with pleated linen and enormous puffed sleeves. henry made proclamations reminding people of the apparel laws, but they were difficult to enforce. henry also made a proclamation limiting the consumption of certain meat according to status. seven dishes were allowed to bishops, dukes, marquises, and earls; six to other temporal lords; five to justices, the king's council, sheriffs, and persons with an income of at least pounds yearly or goods worth pounds; four to persons with an income of at least pounds or goods worth pounds; and three dishes to persons with an income of at least pounds or goods worth pounds. there were limits on types of meat served, such as a maximum of one dish of great fowl such as crane, swan, and peacock; eight quail per dish; and twelve larks in a dish. people used tin or pewter dishes, platters, goblets, saucers, spoons, saltcellars, pots, and basins. they used soap to wash themselves, their clothes, and their dishes. a solid, waxy soap was from evaporating a mixture of goat fat, water, and ash high in potassium carbonate. they had bedcovers on their beds. cloth bore the mark of its weaver and came in many colors. cloth could be held together with pins that had a shank with a hook by which they were closed. people went to barbers to cut their hair and to extract teeth. they went to people experienced with herbs, roots, and waters for treatment of skin conditions such as sores, cuts, burns, swellings, irritated eyes or scaly faces. for more complicated ailments, they went to physicians, who prescribed potions and medicines. they bought potions and medicines from apothecaries and pharmacists. they burned wood logs in the fireplaces in their houses. so much wood was used that young trees were required by statute to be given enough lateral space to spread their limbs and were not cut down until mature. the king, earls, who ruled counties, and barons, who had land and a place in the house of lords, still lived in the most comfort. the king's house had courtyards, gardens, orchards, wood-yards, tennis courts, and bowling alleys. the walls of the towns were manned by the citizens themselves, with police and watchmen at their disposal. in inns, travelers slept ten to a bed and there were many fleas and an occasional rat or mouse running through the rushes strewn on the floor. the inn provided a bed and ale, but travelers brought their own food. each slept with his purse under his pillow. in markets, sellers set up booths for their wares. they sold grain for making oatmeal or for sowing one's own ground. wine, butter, cheese, fish, chicken, and candles could also be bought. butchers bought killed sheep, lambs, calves, and pigs to cut up for selling. tanned leather was sold to girdlemakers and shoemakers. goods bought in markets were presumed not to be stolen, so that a purchaser could not be dispossessed of goods bought unless he had knowledge that they were stolen. the ruling group of the towns came to be composed mostly of merchants, manufacturers, attorneys, and physicians. some townswomen were independent traders. the governed class contained small master craftsmen and journeyman artisans, small traders, and dependent servants. the major streets of london were paved with stone, with a channel in the middle. more water conduits from hills, heaths, and springs were built to provide the citizens of london with more water. the sewers carried only surface water away. households were forbidden to use the sewers. privies emptied into cesspools. the merchant adventurers' fellowship brought virtually all adventurers under its control and organized and regulated the national cloth trade. it had a general court of the adventurers sitting in the london mercers' hall. various companies were granted monopolies for trade in certain areas of the world such as turkey, spain, france, venice, the baltic, and africa. these were regulated companies. that is they obtained complete control of a particular foreign market, but any merchant who cared to join the company, pay its dues, and obey its regulations, might share in the benefits of its monopoly. the companies generally confined trade to men who were primarily merchants and not shopkeepers. in explorer sebastian cabot formed the muscovy company, which was granted a monopoly in its charter for trade with north russia. it was oriented primarily to export english woolen cloth. it was the first company trading on a joint stock, which was arranged as a matter of convenience and safety. the risks were too great for any few individuals. it hired ships and assigned space to each member to ship his goods at his own risk. the dividend was return to the subscribers of the capital put in plus an appropriate share of any profits made on the voyage. i.e. the money was divided up. the members began leaving their money with the company for the next voyage. a general stock grew up. in were the first industrial companies: mines royal, and mineral and battery works. the cloth, mining, iron, and woodcraft industries employed full-time workers on wages. in the ironworks and foundries, the furnace blowing engines were worked by water wheels or by a gear attached to donkeys or horses. the forge hammers were worked at first by levers and later by water wheels. the day and night hammering filled the neighborhood with their noise. land held in common was partitioned. there were leases of mansion houses, smaller dwelling houses, houses with a wharf having a crane, houses with a timber yard, houses with a garden, houses with a shed, shops, warehouses, cellars, and stables. lands with a dye-house or a brew-house were devised by will along with their dying or brewing implements. there were dairies making butter and cheese. the knights had % of the land, the nobles %, the church %, and king %. citizens paid taxes to the king amounting to one tenth of their annual income from land or wages. merchants paid "forced loans" and benevolences. the national government was much centralized and had full-time workers on wages. a national commission of sewers continually surveyed walls, ditches, banks, gutters, sewers, ponds, bridges, rivers, streams, mills, locks, trenches, fish- breeding ponds, and flood gates. when low places were threatened with flooding, it hired laborers, bought timber, and hired carts with horses or oxen for necessary work. mayors of cities repaired water conduits and pipes under their cities' ground. the organ and the harp, precursor to the piano, were played. all people generally had enough food because of the commercialization of agriculture. even the standard meal of the peasant was bread, bacon, cheese, and beer or cider, with beef about twice a week. also, roads were good enough for the transport of foodstuffs thereon. four-wheeled wagons for carrying people as well as goods. goods were also transported by the pulling of barges on the rivers from paths along the river. a plough with wheels was used as well as those without. the matchlock musket came into use, but did not replace the bow because its matchcord didn't remain lit in rainy weather. the matchlock was an improvement over the former musket because both hands could be used to hold and aim the matchlock musket because the powder was ignited by a device that touched a slow-burning cord to the powder when a trigger was pulled with one finger. after the break with rome, cooperation among villagers in church activities largely ceased. the altars and images previously taken care of by them disappeared and the paintings on the walls were covered with white or erased, and scripture texts put in their place. people now read the new bible, the "paraphrases" of erasmus, foxe's "book of martyrs", and the works of bishop jewel. the book of martyrs taught the duty and splendor of rising above all physical danger or suffering. the canon law of the church was abolished and its study prohibited. professorships of the civil law were founded at the two universities. the inns of court grew. attorneys had more work with the new laws passed to replace the church canons of the church. they played an important role in town government and many became wealthy. they acquired town houses in addition to their rural estates. church reforms included abolishing church sanctuaries. benefit of clergy was restricted. parsons were allowed to marry. archbishops were selected by the king without involvement by the pope. decisions by archbishops in testamentary, matrimonial, and marriage annulment matters were appealable to the court of chancery instead of to the pope. the clergy's canons were subject to the king's approval. the control of the church added to the powers of the crown to summon and dissolve parliament, coin money, create peers [members of the house of lords who received individual writs of summons to parliament], pardon criminals, order the arrest of dangerous persons without customary process of law in times of likely insurrection, tax and call men to arms without the consent of parliament if the country were threatened with invasion. about there began indictments and executions for witchcraftery which lasted for about a century. one of the reasons for suspecting a woman to be a witch was that she lived alone, which was very unusual. henry ordered all alien anabaptists, who denied the validity of infant baptism, to leave the realm. in switzerland, theophrastus paracelsus, an astrologer and alchemist who later became a physician, did not believe that humor imbalance caused disease nor in treatment by bloodletting or purging. he believed that there were external causes of disease, e.g. toxic matter in food, contagion, defective physical or mental constitution, cosmic influences differing with climate and country, or affliction sent providence. he urged that wounds be kept clean rather than given poultices. in , he pioneered the application of chemistry to physiology, pathology, and the treatment of disease by starting clinical diagnosis and treatment of disease by highly specific medicines, instead of by cure-alls. for instance, he used alkalis to treat disease, such as gout, indicated by certain substances in the urine, which also started urinalysis. he perceived that syphilis was caused by contagion and used mercury to cure it. he found curative powers also in opium, sulphur, iron, and arsenic. opium was made by drying and cooking the capsule of the poppy and was one of the few really effective early drugs. paracelsus urged alchemists to try to prepare drugs from minerals for the relief of suffering. he claimed to acquire knowledge of cures through spiritual contacts to occult wisdom. he believed that a human being has an invisible body as well as a visible one and that it is closely attuned to imagination and the spiritual aspect of an individual. he noticed that one's attitudes and emotions, such as anger, could affect one's health. he sometimes used suggestion and signs to help a patient form mental images, which translated into cures. he saw insanity as illness instead of possession by evil spirits. understanding of the celestial world began to change. contemporary thought was that the nature of all things was to remain at rest, so that movement and motion had to be explained by causes. the earth was stationary and the heavens were spherical and revolved around the earth every twenty-four hours. the universe was finite. the firmament extended outward in a series of rotating, crystalline, ethereal spheres to which were attached the various points of celestial geography. first came the circle of the moon. the sun orbited the earth. the fixed stars rotated on an outer firmament. finally, there was the abode of god and his heavenly hosts. different principles ruled the celestial world; it was orderly, stable, ageless, and enduring. but the world of man changed constantly due to its mixed four elements of air, earth, fire, and water each trying to disentangle itself from the others and seeking to find its natural location. the heavenly spheres could affect the destinies of men, such as through fate, fortune, intelligence, cherubim, seraphim, angels, and archangels. astrologers read the celestial signs and messages. then a seed of doubt was cast on this theory by nicholaus copernicus, a timid monk in poland, who found inconsistencies in ptolemy's work, but saw similarity in the movements of the earth and other planets. he inferred from the "wandering" planetary movements with loops that their motion could be explained simply if they were revolving in circular paths around the sun, rather than around the earth. in his book of , he also expressed his belief that the earth also revolved around the sun. this idea so shocked the world that the word "revolution" became associated with radical change. he thought it more likely that the earth rotated than that the stars moved with great speed in their large orbits. he proposed that the earth spins on its own axis about once every twenty-four hours, with a spin axis at about a / degree tilt from the orbital axis, thus explaining a slow change in the overall appearances of the fixed stars which had been observed since the time of ptolemy. he deduced from astronomical measurements that the correct order of the planets from the sun was: mercury, venus, earth, mars, jupiter, and saturn. the church considered his ideas heretical because contradictory to its dogma that man and the earth were the center of the universe. a central sun evoked images of pagan practices of sun worship. - the law - a person having land in socage or fee simple may will and devise his land by will or testament in writing. a person holding land by knight's service may will and devise by his last will and testament in writing part of his land to his wife and other parts of his land to his children, as long as / of entailed land is left to the king. anyone serving the king in war may alienate his lands for the performance of his will, and if he dies, his feoffees or executors shall have the wardship of his heir and land. a person who leases land for a term of years, even if by indenture or without a writing, may have a court remedy as do tenants of freehold for any expulsion by the lessor which is contrary to the lease, covenant, or agreement. these termers, their executors and assigns, shall hold and enjoy their terms against the lessors, their heirs and assigns. the lessor shall have a remedy for rents due or waste by a termer after recovering the land as well as if he had not recovered the land. a lord may distrain land within his fee for rents, customs, or services due without naming the tenant, because of the existence of secret feoffments and leases made by their tenants to unknown persons. anyone seised of land to the use or trust of other persons by reason of a will or conveyance shall be held to have lawful seisin and possession of the land, because by common law, land is not devisable by will or testament, yet land has been so conveyed, which has deprived married men of their courtesy, women of their dower, the king of the lands of persons attainted, the king of a year's profits from felons' lands, and lords of their escheats. (this was difficult to enforce.) a woman may not have both a jointure [promise of husband to wife of property or income for life after his death] and dower of her husband's land. (persons had purchased land to hold jointly with their wives) a sale of land must be in writing, sealed, and registered in its county with the clerk of that county. if the land is worth less than s. per year, the clerk is paid d. if the land exceeds s. yearly, the clerk is paid s. d. an adult may lease his lands or tenements only by a writing under his seal for a term of years or a term of life, because many people who had taken leases of lands and tenements for a term of years or a term of lives had to spend a lot for repair and were then evicted by heirs of their lessors. a husband may not lease out his wife's land. no woman-covert, child, idiot, or person of insane memory may devise land by will or testament. the land of tenants-in-common may be partitioned by them so that each holds a certain part. no bishop or other official having authority to take probate of testaments may take a fee for probating a testament where the goods of the testator are under s., except that the scribe writing the probate of the testament may take d., and for the commission of administration of the goods of any man dying intestate, being up to s, may be charged d. where the goods are over s. but up to s. sterling, probate fees may be s. d. at most, whereof the official may take s. d. at most, with d. residue to the scribe for registering the testament. where the goods are over s. sterling, probate fees may be s. at most, whereof the official may take s. d. at most, with s. d. residue to the scribe, or the scribe may choose to take d. per lines of writing of the testament. if the deceased had willed by his testament any land to be sold, the money thereof coming nor the profits of the land shall not be counted as the goods or chattel of the deceased. where probate fees have customarily been less, they shall remain the same. the official shall approve and seal the testament without delay and deliver it to the executors named in such testaments for the said sum. if a person dies intestate or executors refuse to prove the testament, then the official shall grant the administration of the goods to the widow of the deceased person, or to the next of kin, or to both, in the discretion of the official, taking surety of them for the true administration of the goods, chattels, and debts. where kin of unequal degree request the administration, it shall be given to the wife and, at his discretion, other requestors. the executors or administrators, along with at least two persons to whom the deceased was indebted, or to whom legacies were made, or, upon their refusal or absence, two honest kinsmen, shall make an inventory of the deceased's goods, chattels, ware, merchandise, as well moveable as not moveable, and take it upon their oaths to the official. no parish clergyman or other spiritual person shall take a mortuary fee or money from a deceased person with movable goods under the value of s., a deceased woman-covert, a child, a person keeping no house, or a traveler. only one mortuary fee may be taken of each deceased and that in the place where he most dwelled and lived. where the deceased's moveable goods are to the value of s. or more, above his debts paid, and under s., a mortuary up to s. d. may be taken. where such goods are s. or more and under s., mortuary up to s. d. may be taken. where such goods are s. or above, mortuary up to s. may be taken. but where mortuaries have customarily been less, they shall remain the same. executors of a will declaring land to be sold for the payment of debts, performance of legacies to wife and children, and charitable deeds for the health of souls, may sell the land despite the refusal of other executors to agree to such sale. a man may not marry his mother, stepmother, sister, niece, aunt, or daughter. any clergy preaching contrary to the king's religious doctrine shall recant for the first offense. he shall abjure and bear a faggot (a badge resembling a faggot of wood which would have been used for burning him as a heretic) for the second offense. if he refuses to abjure or bear a faggot or offends a third time, he shall be burned and lose all his goods. if a layperson teaches, defends, or maintains a religious doctrine other than the king's, he shall recant and be imprisoned for twenty days for the first offense. he shall abjure and bear a faggot if he does not recant or offends a second time. he shall forfeit his goods and suffer perpetual imprisonment if he does not abjure or bear a faggot or offends a third time. the entry of an apprentice into a craft shall not cost more than s. d. after his term, his entry shall not be more than s. d. this replaced the various fees ranging from this to s. no master of a craft may require his apprentice to make an oath not to compete with him by setting up a shop after the term of his apprenticeship. no alien may take up a craft or occupation in the nation. no brewer of ale or beer to sell shall make wood vessels or barrels, and coopers shall use only good and seasonable wood to make barrels and shall put their mark thereon. every ale or beer barrel shall contain of the king's standard gallons. the price of beer barrels sold to ale or beer brewers or others shall be d. an ale-brewer may employ in his service one cooper only to bind, hoop and pin, but not to make, his master's ale vessels. no butcher may keep a tanning-house. tanned leather shall be sold only in open fairs and markets and after it is inspected and sealed. only people living in designated towns may make cloth to sell, to prevent the ruin of these towns by people taking up both agriculture and cloth-making outside these towns. no one making cloth for sale may have more than one woolen loom or else forfeit s. this to protect the weavers' ability to maintain themselves and their families from rich clothiers who keep many looms and employ journeymen and unskillful persons at low wages. no one owning a fulling mill may own a weaving loom. no weaver may own a fulling mill. no one shall shoot in or keep in his house any handgun or crossbow unless he has , s. yearly. no one may hunt or kill hare in the snow since their killing in great numbers by men other than the king and noblemen has depleted them. no one shall take an egg or bird of any falcon or hawk out of its nest on the king's land. no one may disguise himself with hidden or painted face to enter a forest or park enclosed with a wall for keeping deer to steal any deer or hare. ducks and geese shall not be taken with any net or device during the summer, when they haven't enough feathers to fly. but a freeholder of s. yearly may hunt and take such with long bow and spaniels. no one may sell or buy any pheasant except the king's officers may buy such for the king. no butcher may kill any calf born in the spring. no grain, beef, mutton, veal, or pork may be sold outside the nation. every person with acres of agricultural land, shall sow one quarter acre with flax or hemp-feed. all persons shall kill crows on their land to prevent them from eating so much grain at sowing and ripening time and destroying hay stacks and the thatched roofs of houses and barns. they shall assemble yearly to survey all the land to decide how best to destroy all the young breed of crows for that year. every village and town with at least ten households shall put up and maintain crow nets for the destruction of crows. no land used for raising crops may be converted to pasture. no woods may be converted to agriculture or pasture. the efforts to enforce these proved these prohibitions were not successful. no one shall cut down or break up dikes holding salt water and fresh water from flooding houses and pastures. no one shall dump tin-mining debris, dung, or rubbish into rivers flowing into ports or take any wood from the walls of the port, so that ships may always enter at low tide. a person may lay out a new highway on his land where the old one has been so damaged by waterways that horses with carriages cannot pass, with the consent of local officials. only poor, aged, and disabled persons may beg. begging without a license is punishable by whipping or setting in the stocks days with only bread and water. alien palm readers shall no longer be allowed into the nation, because they have been committing felonies and robberies. butchers may not sell beef, pork, mutton, or veal from carcasses for more than / penny and / farthing [ / penny] per pound. french wines may not sell at retail for more than d. per gallon. a barrel maker or cooper may sell a beer barrel for d. no longer may aliens bring books into the nation to sell because now there are sufficient printers and bookbinders in the nation. no one may buy fresh fish other than sturgeon, porpoise, or seal from an alien to put to sale in the nation. every person with an enclosed park where there are deer, shall keep two tall and strong mares in such park and shall not allow them to be mounted by any short horse, because the breeding of good, swift, and strong horses has diminished. a man may have only as many trotting horses for the saddle as are appropriate to his degree. no one may maintain for a living a house for unlawful games such as bowling, tennis, dice, or cards. no artificer, craftsman, husbandman, apprentice, laborer, journeyman, mariner, fisherman may play these games except at christmas under his master's supervision. noblemen and others with a yearly income of at least , s. may allow his servants to play these games at his house. hemp of flax may not be watered in any river or stream where animals are watered. no one shall sell merchandise to another and then buy back the same merchandise within three months at a lower price. no one shall sell merchandise to be paid for in a year above the sum of s. per s. worth of merchandise. no one shall sell or mortgage any land upon condition of payment of a sum of money before a certain date above the sum of s. per s. per year. no one shall commit forgery by counterfeiting a letter made in another person's name to steal any money, goods, or jewels. no one shall libel by accusing another of treason in writing and leaving it in an open place without subscribing his own name to it. if any servant converts to his own use more than s. worth of jewels, money, or goods from caskets entrusted to him for safekeeping by a nobleman or other master or mistress, it shall be a felony. if a person breaks into a dwelling house by night to commit burglary or murder, is killed by anyone in that house, or a person is killed in self-defense, the killer shall not forfeit any lands or goods for the killing. killing by poisoning shall be deemed murder and is punishable by death. a person who has committed a murder, robbery, or other felony he has committed shall be imprisoned for his natural life and be burned on the hand, because those who have been exiled have disclosed their knowledge of the commodities and secrets of this nation and gathered together to practice archery for the benefit of the foreign realm. if he escapes such imprisonment, he shall forfeit his life. a person convicted or outlawed shall be penalized by loss of life, but not loss of lands or goods, which shall go to his wife as dower and his heirs. buggery may not be committed on any person or beast. no one shall slander or libel the king by speeches or writing or printing or painting. no one shall steal fish from a pond on another's land by using nets or hooks with bait or by drying up the pond. the mayor of london shall appoint householders to supervise watermen rowing people across the thames river because so many people have been robbed and drowned by these rowers. all such boats must be at least feet long and feet wide. no man shall take away or marry any maiden under years of age with an inheritance against the will of her father. any marriage solemnized in church and consummated shall be valid regardless of any prior agreement for marriage. sheriffs shall not lose their office because they have not collected enough money for the exchequer, but shall have allowances sufficient to perform their duties. butchers, brewers, and bakers shall not conspire together to sell their victuals only at certain prices. artificers, workmen and laborers shall not conspire to work only at a certain rate or only at certain hours of the day. no one shall sell any woolen cloth that shrinks when it is wet. only artificers using the cutting of leather, may buy and sell tanned leather and only for the purpose of converting it into made wares. a beggar's child above five years may be taken into service by anyone that will. cattle may be bought only in the open fair or market and only by a butcher or for a household, team, or dairy, but not for resale live. butter and cheese shall not be bought to be sold again except at retail in open shop, fair, or market. no man may enter a craft of cloth-making until he has been an apprentice for seven years or has married a clothiers' wife and practicing the trade for years with her and her servants sorting the wool. no country person shall sell wares such as linen drapery, wool drapery, hats, or groceries by retail in any incorporated town, but only in open fairs. for every sheep there shall be kept one milk cow because of the scarcity of cattle. no clothier may keep more than one wool loom in his house, because many weavers do not have enough work to support their families. no weaver may have more than two wool looms. no clothmaker, fuller, shearman, weaver, tailor, or shoemaker shall retain a journeyman to work by the piece for less than a three month period. every craftsman who has three apprentices shall have one journeyman. servants in agriculture and bargemen shall serve by the whole year and not by day wages. there shall be a sales tax of d. per pound of wool cloth goods for the crown. all people shall attend church on sundays to remember god's benefits and goodness to all and to give thanks for these with prayers and to pray to be given daily necessities. anyone fighting in church shall be excluded from the fellowship of the parish community. no one shall use a rope or device to stretch cloth for sale so to make it appear as more in quantity than it is. no one may sell cloth at retail unless the town where it was dressed, dyed, and pressed has placed its seal on the cloth. cloth may not be pressed with a hot press, but only with a cold press. offices may not be bought and sold, but only granted by justices of the royal courts. no one going from house to house to repair metal goods or sell small goods he is carrying may do this trade outside the town where he lives. no one may sell ale or beer without a license, because there have been too many disorders in common alehouses. offenders may be put in the town or county gaol for three days. only persons with yearly incomes of , s. or owning goods worth , s. may store wine in his house and only for the use of his household. no one may sell forged iron, calling it steel, because the edged tools and weapons made from it are useless. parish communities shall repair the highways for four days each year using oxen, cart, plough, shovels, and spades. the children of priests are declared legitimate so they may inherit their ancestor's lands. the priests may be tenants by courtesy after the death of their wives of such land and tenements that their wives happened to be seized of in fee simple or in fee tail, during the spousals. the king's proclamations shall be observed and kept as though they were acts of parliament. the penalty shall not be more than that stated in the proclamation, except for heresy. as of , it was felony to practice witchcraft, sorcery, enchantment, or conjuration for the purpose ) of obtaining money, or ) to consume any person in his body, members, or goods, or ) to provoke any person to unlawful love or lucre of money, or ) to declare where stolen goods be, or ) to despite christ, or ) to pull down any cross. the year books ceased in . - judicial procedure - by royal proclamation of , only those admitted by the chancellor and two chief justices may practice as counsel or in legal pleading in any of the king's courts. also, such a person must be serjeant-at-law, reader, utter barrister, or an eight-year fellow of one of the four houses of court, except in the court of common pleas. doctors of the civil law may practice in the church or chancery courts. justices shall tax inhabitants of the county for building gaols throughout the nation, for imprisonment of felons, to be kept by the sheriffs and repaired out of the exchequer. piracy at sea or in river or creek or port are adjudicated in counties because of the difficulty of obtaining witnesses from the ship, who might be murdered or who are on other voyages on the sea, for adjudication by the admiral. piracy and murder on ships is punishable by death only after confession or proof by disinterested witnesses. land held by tenants in common may be partitioned by court order, because some of these tenants have cut down all the trees to take the wood and pulled down the houses to convert the material to their own use. persons worth s. a year in goods shall be admitted in trials of felons in corporate towns although they have no freehold of land. each justice of the high courts may employ one chaplain. the privy council took the authority of the star chamber court, which organized itself as a specialty court. also, a specific group of full-time councilors heard pleas of private suitors. the bishops, nobility, and justices of the peace were commanded to imprison clergy who taught papal authority. justices of the peace and sheriffs were to watch over the bishops. the justices of assize were to assess the effectiveness of the justices of the peace as well as enforce the treason statute on circuit. the criminal court went outside the common law to prosecute political enemies, e.g. by dispensing with a jury. since the nation was now peaceful, expediency was no longer needed, so judicial procedures again became lengthy and formal with records. the chancery court enforced the obligations known as trusts, in the name of equity and good conscience. it adopted every analogy that the common law presented. its procedure was to force the defendant to answer on oath the charges that were brought against him. all pleadings and usually testimony was put into writing. much evidence consisted of written affidavits. there was no jury. the chancery court did not record its decisions apparently because it did not see itself s bound by precedents. witnesses could be sworn in to state pertinent facts necessary for full understanding and adjudication of cases, because they are reliable now that there is no unlicensed livery and maintenance and because jurors no longer necessarily know all the relevant facts. when acting as the highest court, the house of lords was presided over by the chancellor, who sat on his prescribed place on the wool sacks. it had the following jurisdiction: trial of peers for high treason and serious felony, appeals on writs of error from courts of the common law, and impeachment. the house of lords served as judge of impeachment cases, whereas the house of commons served as fact finders. the leet court and sheriff's turn court have much less jurisdiction. they may dispose of presentments of trespasses and nuisances, but not felony or question of freehold. such presentments are made by a set of at least twelve men, and the presented person is amerced there and then. - - - chapter - - - - the times: - - queen elizabeth i was intelligent, educated, and wise about human nature. when young, she was a brilliant student and studied the bible, and greek and roman history, philosophy, literature, and oratory. she wrote in english, latin, french, and italian. she read greek, including the greek testament, greek orators, and greek dramatists at age seven, when the first professorship of greek was founded at cambridge university. learning from books was one of her highest values throughout her life. she was so influenced by her reading of cicero that she acquired his style of writing. her chief secretary william cecil was so guided by cicero's "offices" that he carried a copy in his pocket. cicero opined that government officials had a duty to make the safety and interest of citizens its greatest aim and to influence all their thoughts and endeavors without ever considering personal advantage. government was not to serve the interest of any one group to the prejudice or neglect of the rest, for then discord and sedition would occur. furthermore, a ruler should try to become loved and not feared, because men hated those whom they feared, and wished dead those whom they hated. therefore obedience proceeding from fear could not last, whereas that which was the effect of love would last forever. an oppressor ruling by terror will be resented by the citizens, who in secret will choose a worthier person. then liberty, having been chained up, would be unleashed more fiercely than otherwise. to obtain the peoples' love, a ruler should be kind and bountiful. to obtain the peoples' trust, a ruler should be just, wise, and faithful. to demonstrate this, a ruler should be eloquent in showing the people an understanding better than theirs, the wisdom to anticipate events, and the ability to deal with adverse events. and this demonstration should be done with modesty. one cannot get the peoples' trust by vain shows, hypocritical pretenses, composed countenances, and studied forms of words. the first goal of a ruler is to take care that each individual is secured in the quiet enjoyment of his own property. the second goal is to impose taxes that are not burdensome. the third goal is to furnish the people with necessaries. the law should be enforced keeping in mind that its fundamental purpose is to keep up agreement and union among citizens. elizabeth cared deeply for the welfare of all citizens of whatever class. she was sensitive to public opinion and was loved by her people. she respected truth and was sincere, avoiding guile or fraud. she claimed that she had never dishonored her tongue with a falsehood to anyone. she expected that any covert manipulations by monarchs would be found out and therefore would damage their credibility. "it becometh therefor all of our rank to deal sincerely; lest if we use it not, when we do it we be hardly believed." she was frugal and diplomatically avoided unnecessary wars, saying that her purse was the pockets of her people. england was a small protestant nation threatened by the larger catholic nations of france and spain. when elizabeth flirted and talked of marriage with foreign princes, they laid aside any thoughts of conquering england by war, hoping to obtain it my marriage. not only did she not seek to conquer other lands, but she turned down an invitation to rule the netherlands. her credit reputation was so good that she could always get loans at small rates of interest from other countries. tudor government was paternalistic, curtailing cutthroat competition, fixing prices and wages, and licensing production under grants of monopoly to achieve a stable and contented society and a fair living for all. elizabeth prayed for divine guidance as in this prayer: "almighty god and king of all kings, lord of heaven and earth, by whose leave earthly princes rule over mortals, when the most prudent of kings who administered a kingdom, solomon, frankly confessed that he was not capable enough unless thou broughtst him power and help, how much less am i, thy handmaid, in my unwarlike sex and feminine nature, adequate to administer these thy kingdoms of england and of ireland, and to govern an innumerable and warlike people, or able to bear the immense magnitude of such a burden, if thou, most merciful father didst not provide for me (undeserving of a kingdom) freely and against the opinion of many men. instruct me from heaven, and give help so that i reign by thy grace, without which even the wisest among the sons of men can think nothing rightly. send therefore, o inexhaustible fount of all wisdom, from thy holy heaven and the most high throne of thy majesty, thy wisdom to be ever with me, that it may keep watch with me in governing the commonwealth, and that it may take pains, that it may teach me, thy handmaid, and may train me that i may be able to distinguish between good and evil, equity and iniquity, so as rightly to judge thy people, justly to impose deserved punishments on those who do harm, mercifully to protect the innocent, freely to encourage those who are industrious and useful to the commonwealth. and besides, that i may know what is acceptable to thee alone, vouchsafe that i wish, dare, and can perform it without paying respect to any earthly persons or things. so that when thou thyself, the just judge, who askest many and great things from those to whom many and great things are entrusted, when thou requirest an exact accounting, charge me not with badly administering my commonwealth and kingdom. but if by human thoughtlessness or infirmity thy handmaid strays from the right in some thing, absolve me of it by thy mercy, most high king and most mild father, for the sake of thy son jesus christ; and at the same time grant that after this worldly kingdom has been exacted of me, i may enjoy with thee an eternity in thy heavenly and unending kingdom, through the same jesus christ, thy son and the assessor of thy kingdom, our lord and mediator. to whom with thee and with the holy spirit, one everlasting king, immortal, invisible, only-wise god, be all honor and glory forever and ever, amen. elizabeth promoted commercial speculations, which diffused a vast increase of wealth among her people. the elizabethan era was one of general prosperity. her good spirits and gayness created a happy mood in the nation. she loved dancing and madrigal music was popular. she came to dress elaborately and fancifully. her dresses were fitted not only at the waist, but along the torso by a long and pointed bodice stiffened with wood, steel, or whalebone. her skirt was held out with a petticoat with progressively larger hoops. there were two layers of skirt with the top one parted to show the bottom one. the materials used were silks, satins, velvets, and brocades. on her dress were quiltings, slashings, and embroidery. it was covered with gold ornaments, pearls, gems, and unusual stones from america. she wore decorated gloves. ladies copied her and discarded their simple over-tunics for elaborate dresses. the under-tunic was now becoming a petticoat and the over-tunic a dress. their under-tunics became petticoats. often they also wore a fan with a mirror, a ball of scent, a miniature portrait of someone dear to them, and sometimes a watch. single ladies did not wear hats, but had long, flowing hair and low cut dresses showing their bosoms. married ladies curled their hair and wore it in high masses on their heads with jewels interwoven into it. both gentlemen and ladies wore hats both indoors and outside and large, pleated collars around their necks (with the newly discovered starch), perfume, rings with stones or pearls, and high-heeled shoes. gentlemen's' tight sleeves, stiffened and fitted doublet with short skirt, and short cloak were ornamented and their silk or velvet hats flamboyant, with feathers. at their leather belts they hung pouches and perhaps a watch. they wore both rapiers [swords with cutting edges] and daggers daily as there were many quarrels. there were various artistic beard cuts and various lengths of hair, which was often curled and worn in ringlets. barbers sought to give a man a haircut that would favor his appearance, for instance a long slender beard for a round face to make it seem narrower and a broad and large cut for a lean and straight face. men now wore stuffed breeches and stockings instead of long hosen. some wore a jeweled and embroidered codpiece between their legs to emphasize their virility. both gentlemen and ladies wore silk stockings and socks over them and then boots. coats dipped in boiled linseed oil with resin served as raincoats. both men and women wore velvet or wool full length nightgowns with long sleeves and fur lining and trimming to bed, which was the custom for the next years. fashions changed every year due to the introduction of cheaper, lighter, and less durable cloths by immigrant craftsmen. when elizabeth became old, she had a wig made to match her youthful long red hair. other ladies then began wearing wigs. every few years, elizabeth issued a proclamation reminding people of the apparel laws and reiterating certain provisions which had been disregarded. for instance, only the royal family and dukes and marquises in mantles [cloaks] of the garter could wear the color purple. one had to be at least an earl to wear gold or silver or sable. only dukes, marquises, earls and their children, barons, and knights of the order could wear imported wool, velvet, crimson, scarlet, or blue, or certain furs. except that barons' sons, knights, or men that could dispend at least pounds yearly could wear velvet in gowns or coats, embroidery, and furs of leopards. spurs, swords, rapiers, daggers, and woodknives were restricted to knights and barons' sons or higher. a man who could dispend at least pounds per year could wear taffeta, satin, damask, or cloth made of camels' hair and silk, in his outer garments. one had to be the son and heir or the daughter of a knight or wife of said son or a man who could dispend pounds yearly or had pounds worth in goods to wear silk in one's hat, bonnet, nightcap, girdle, scabbard, or hose. yeomen, husbandmen, serving men, and craftsmen were very restricted in what they could wear. poor men wore skirted fustian tunics, loose breeches, and coarse stockings or canvas leggings. women spent much of their time doing needlework and embroidery. since so many of the women who spent their days spinning were single, unmarried women became known as "spinsters". children wore the same type of apparel as their elders. they were given milk at meals for good growth. it was recognized that sickness could be influenced by diet and herbs. sickness was still viewed as an imperfect balance of the four humors. there were many lifestyle possibilities in the nation: gentleman, that is one who owned land or was in a profession such as a attorney, physician, priest or who was a university graduate, government official, or a military officer; employment in agriculture, arts, sciences; employment in households and offices of noblemen and gentlemen; self-sufficient farmers with their own farm; fisherman or mariner on the sea or apprentice of such; employment by carriers of grain into cities, by market towns, or for digging, seeking, finding, getting, melting, fining, working, trying, making of any silver, tin, lead, iron, copper, stone, coal; glassmaker. typical wages in the country were: field-workers - d. a day, ploughmen s. a week with board, shepherd d. a week and board, his boy / d., hedgers d. a day, threshers - d. depending on the grain, thatching for five days d., master mason or carpenter or joiner d. a day and food or d. without food, a smith d. a day with food, a bricklayer / d. a day with food, a shoemaker d. a day with food. these people lived primarily on food from their own ground. there was typical work for each month of the year in the country: january - ditching and hedging after the frost broke, february - catch moles in the meadows, march - protect the sheep from prowling dogs, april - put up hop poles, sell bark to the tanner before the timber is felled, fell elm and ash for carts and ploughs, fell hazel for forks, fell sallow for rakes, fell horn for flails, may - weed and hire children to pick up stones from the fallow land, june - wash and shear the sheep, july - hay harvest, august - wheat harvest, september and october - gather the fruit, sell the wool from the summer shearing, stack logs for winter, buy salt fish for lent in the town and lay it up to dry, november - have the chimneys swept before winter, thresh grain in the barn, december - grind tools, repair yokes, forks, and farm implements, cover strawberry and flower beds with straw to protect them from the cold, split kindling wood with beetle and wedge, tan their leather, make leather jugs, make baskets for catching fish, and carve wood spoons, plates, and bowls. there was a wave of building and renovation activity in town and country. housing is now, for the first time, purely for dwelling and not for defense. houses were designed symmetrically with decorative features instead of a haphazard addition of rooms. windows were large and put on the outer walls instead of just inside the courtyard. a scarcity of timber caused proportionally more stone to be used for dwelling houses and proportionately more brick to be used for royal palaces and mansions. the rest of the house was plaster painted white interspersed with vertical, horizontal, and sloping timber, usually oak, painted black. there were locks and bolts for protection from intruders. the hall was still the main room, and usually extended up to the roof. richly carved screens separated the hall from the kitchen. the floors were stone or wood, and sometimes tile. they were often covered with rushes or plaited rush mats, on which incomers could remove the mud from their boots. some private rooms may have carpets on the floor. walls were smoothly plastered or had carved wood paneling to control drafts. painted cloths replaced tapestries on walls. iron stands with candles were hung from the ceiling and used on tables. plastered ceilings and a lavish use of glass made rooms lighter and cozy. broad and gracious open stairways with carved wood banisters, which replaced the narrow winding stone steps of a circular stairwell. most houses had several ornamented brick chimneys and clear, but uneven, glass in the windows. there were fireplaces in living rooms, dining rooms, kitchen, and bedrooms, as well as in the hall and great chamber. parlors were used for eating and sitting only, but not for sleeping. closets were rooms off bedrooms in which one could read and write on a writing table, and store one's books, papers, maps, calendar, medals, collections, rarities, and oddities. sometimes there was a study room or breakfast room as well. a gentleman used his study not only to read and to write, but to hold collections of early chronicles, charters, deeds, copied manuscripts, and coins that reflected the budding interest in antiquarianism; and to study his family genealogy, for which he had hired someone to make an elaborate diagram. he was inclined to have a few classical, religious, medical, legal, and political books there. rooms were more spacious than before and contained oak furniture such as enclosed cupboards, cabinets, buffets from which food could be served, tables, chairs and benches with backs and cushions, sometimes with arms, lidded chests for storing clothes and linens, and occasionally chests of drawers or wardrobes, either hanging or with shelves, for clothes. chests of drawers developed from a drawer at the bottom of a wardrobe. carpeting covered tables, chests, and beds. family portraits decorated some walls, usually in the dining room. great houses had a wardrobe chamber with a fireplace in front of which the yeoman of the wardrobe and his assistants could repair clothes and hangings. separate bedchambers replaced bed-sitting rooms. bedrooms all led out of each other. the lady's chamber was next to her lord's chamber, and her ladies' chambers were close to her chamber. but curtains on the four poster beds with tops provided privacy and warmth. beds had elaborately carved bedsteads, sheets, and a feather cover as well as a feather mattress. often family members, servants, and friends shared the same bed for warmth or convenience. each bedroom typically had a cabinet with a mirror, e.g. of burnished metal or crystal, and comb on top. one brushed his teeth with tooth soap and a linen cloth, as physicians advised. each bedroom had a pitcher and water bowl, usually silver or pewter, for washing in the morning, and a chamber pot or a stool with a hole over a bucket for nighttime use, and also fragrant flowers to override the unpleasant odors. the chamber pots and buckets were emptied into cesspits. a large set of lodgings had attached to it latrines consisting of a small cell in which a seat with a hole was placed over a shaft which connected to a pit or a drain. the servants slept in turrets or attics. elizabeth had a room just for her bath. more than medieval castles and manor houses, mansions were designed with privacy in mind. breakfast was substantial, with meat, and usually eaten in one's bedroom. the great hall, often hung around with bows, pikes, swords, and guns, was not abandoned, but the family took meals there only on rare occasions. instead they withdrew to a parlor, for domestic use, or the great chamber, for entertaining. parlors were situated on the ground floor: the family lived and relaxed there, and had informal meals in a dining parlor. the formal or "state" rooms were on the first floor above the ground floor, usually comprising a great chamber, a withdrawing chamber, one or more bedchambers, and a long gallery. each room had carved chairs and cabinets. taking a meal in the great chamber involved the same ceremonial ritual as in the manorial great chamber dating from the s. the table was covered with a linen cloth. the lady of the house sat in a chair at the upper end of the table and was served first. people of high rank sat at her end of the table "above" the fancy silver salt cellar and pepper. people of low rank sat "below" it near the other end of the table. grace was said before the meal. noon dinner and supper were served by cupbearer, sewer, carver, and assistants. fine clear italian glass drinking vessels replaced even gold and silver goblets. food was eaten from silver dishes with silver spoons. some gentry used two-pronged forks. meats were plentiful and varied: e.g. beef, mutton, veal, lamb, kid, pork, hare, capon, red deer, fish and wild fowl as well as the traditional venison and brawn [boar]. kitchen gardens and orchards supplied apricots, almonds, gooseberries, raspberries, melons, currants, oranges, and lemons as well as the traditional apples, pears, plums, mulberries, quinces, pomegranates, figs, cherries, walnuts, chestnuts, hazel nuts, filberts, almonds, strawberries, blackberries, dewberries, blueberries, and peaches. also grown were sweet potatoes, artichokes, cabbages, turnips, broad beans, peas, pumpkins, cucumbers, radishes, carrots, celery, parsnips, onions, garlic, leeks, endive, capers, spinach, sorrel, lettuce, parsley, mustard, cress, sage, tarragon, fennel, thyme, mint, savory, rhubarb, and medicinal herbs. the well-to-do started to grow apricots, peaches, and oranges under glass. sugar was used to make sweet dishes. toothpicks made of brass or silver or merely a stiff quill were used. after the meal, some men and women were invited for conversation in a withdrawing or drawing chamber. some might take a walk in the gardens. after the upper table was served, the food was sent to the great hall to the steward and high household officers at the high table and other servants: serving men and women, bakers, brewers, cooks, pot cleaners, laundresses, shepherds, hogherds, dairy maids, falconers, huntsmen, and stable men. what was left was given to the poor at the gates of the house. great chambers were used primarily for meals, but also for music; dancing; plays; masques; playing cards, dice, backgammon, or chess; and daily prayers if there was no chapel. the idea of a long gallery was copied from henry vii and was used for exercise, recreation such as music and dancing, and private conversations. without the necessity of fortifications, the estate of a noble or gentleman could spread out to include not only a garden for the kitchen, but extensive orchards and beautiful formal gardens of flowers and scrubs, sometimes with fountains and maybe a maze of hedges. trees were planted, pruned, and grafted onto each other. householders had the responsibility to teach their family and servants religion and morals, and often read from the bible to them. many thought that the writers of the bible wrote down the exact words of god, so the passages of the bible should be taken literally. a noble lord made written rules with penalties for his country household, which numbered about a hundred, including family, retainers, and servants. he enforced them by fines, flogging, and threats of dismissal. the lady of the house saw that the household, held together as an economic and social unit. the noble's family, retainers, guests, and the head servants, such as chaplain and children's tutor, and possibly a musician, dined together at one table. the family included step children and married sons and daughters with their spouses. young couples often lived with the parents of one of them. chandeliers of candles lit rooms. there were sandglass clocks. popular home activities included reading, conversation, gardening, and music-making. smoking tobacco from a clay pipe and taking snuff became popular with men. for amusement, one of the lord's household would take his place in managing the estate for twelve days. he was called the "lord of misrule", and mimicked his lord, and issued comic orders. clothes were washed in rivers and wells. at spring cleanings, windows were opened, every washable surface washed, and feather beds and pillows exposed to the sun. most dwellings were of brick and stone. only a few were of wood or mud and straw. the average house was now four rooms instead of three. yeomen might have six rooms. a weaver's house had a hall, two bedrooms, and a kitchen besides the shop. farmers might have two instead of one room. a joiner had a one-room house with a feather bed and bolster. even craftsmen, artificers and simple farmers slept on feather beds on bed frames with pillows, sheets, blankets, and coverlets. loom tapestry and painted cloth was hung to keep out the cold in their single story homes. they also had pewter spoons and plates, instead of just wood or earthenware ones. even the poorer class had glass drinking vessels, though of a coarse grade. the poor still used wooden plates and spoons. laborers had canvas sheets. richer farmers would build a chamber above the hall, replacing the open hearth with a fireplace and chimney at a wall. poorer people favored ground floor extensions, adding a kitchen or second bedchamber to their cottages. kitchens were often separate buildings to reduce the risk of fire. roasting was done on a spit and baking in irons boxes placed in the fire or in a brick oven at the side of the fireplace. sometimes dogs were used to turn a spit by continual running in a treadmill. some people lived in hovels due to the custom in many places that a person could live in a home he built on village waste land if he could build it in one night. yeomen farmers still worked from dawn to dusk. mixed farming began. in this, some of the arable land produced food for man and the rest produced food for sheep, cattle, pigs, and poultry. this was made possible by the introduction of clover, artificial grasses, and turnip and other root crops for the animals. since the sheep ate these crops in the field, they provided manure to maintain the fertility of the soil. this meant that many animals could be maintained throughout the winter instead of being slaughtered and salted. farmers' wives used looms as well as spinning wheels with foot treadles. since animals could now be kept through the winter, salted meat and salted fish were no longer the staple food of the poorer people during the winter. farm laborers ate soup, porridge, milk, cheese, bacon, and beer or mead (depending on the district), and dark barley or rye bread, which often served as his plate. gentlemen ate wheat bread. there was a scarcity of fruits and vegetables that adversely affected the health of the affluent as well as of the poor due to the overall decline in farming. during winter, there were many red noses and coughing. the value of grain and meat rose compared to wool. grain became six times its value in the previous reign. wool fell from s. d. per tod to s. so sheep farming, which had taken about % of the arable land, was supplanted somewhat by crop raising, and the rural population could be employed for agriculture. in some places, the threefold system of rotation was replaced by alternating land used for crops with that used for pasture. the necessity of manuring and the rotation of crops and grasses such as clover for enrichment of the soil were recognized. wheat, rye, barley, peas, and beans were raised. there was much appropriation of common land by individual owners by sale or force. many farms were enclosed by fences or hedges so that each holder could be independent of his neighbors. red and black currants, rhubarb, apricots, and oranges were now grown. these independent farmers could sell wool to clothiers, and butter, cheese, and meat to the towns. they also often did smithwork and ironwork, making nails, horseshoes, keys, locks, and agricultural implements to sell. a laborer could earn d. a day in winter and d. a day in summer. unfree villeinage ceased on the royal estates. but most land was still farmed in common and worked in strips without enclosure. elizabeth made several proclamations ordering the enclosure of certain enclosed land to be destroyed and the land returned to tillage. windmills now had vanes replacing manual labor to change the position of their sails when the wind direction changed. prosperous traders and farmers who owned their own land assumed local offices as established members of the community. the population of the nation was about five million. population expansion had allowed landlords to insist on shorter leases and higher rents, instead of having to choose between accepting a long lease and good rent or allowing their estates to pass out of cultivation. over % of the population were on the margin of subsistence. % of the population lived in the countryside and % in the london and % in the other towns. life expectancy was about years of age. over % was under the age of , while only about % were over . fluctuations in rates of population growth were traceable back to bad harvests and to epidemics and the two were still closely related to each other: "first dirth and then plague". most of london was confined within the city wall. there were orchards and gardens both inside and outside the walls, and fields outside. flower gardens and nurseries came into existence. no part of the city was more than a ten minute walk to the fields. some wealthy merchants had four story mansions or country houses outside the city walls. the suburbs of the city of london grew in a long line along the river; on the west side were noblemen's houses on both sides of the strand. east of the tower was a seafaring and industrial population. goldsmiths' row was replete with four story houses. a few wealthy merchants became money- lenders for interest, despite the law against usury. the mayor of london was typically a rich merchant prince. each trade occupied its own section of the town and every shop had its own signboard, for instance, hat and cap sellers, cloth sellers, grocers, butchers, cooks, taverns, and booksellers. many of the london wards were associated with a craft, such as candlewick ward, bread st. ward, vintry ward, and cordwainer ward. some wards were associated with their location in the city, such as bridge ward, tower ward, aldgate ward, queenhithe ward, and billingsgate ward. people lived at the back or on the second floor of their shops. in the back yard, they grew vegetables such as melons, carrots, turnips, cabbages, pumpkins, parsnips, and cucumbers; herbs; and kept a pig. the pigs could still wander through the streets. hyde park was the queen's hunting ground. london had a small zoo of ten animals, including a lion, tiger, lynx, and wolf. london was england's greatest manufacturing city. by the greatest trading companies in london ceased to be associated only with their traditional goods and were dominated by merchants whose main interest was in the cloth trade. ambitious merchants joined a livery company to become freemen of the city and for the status and social benefits of membership. the companies still made charitable endowments, had funeral feasts, cared for the welfare of guild members, and made lavish displays of pageantry. they were intimately involved with the government of the city. they supplied members for the court of aldermen, which relied on the companies to maintain the city's emergency grain stores, to assess and collect taxes, to provide loans to the crown, to control prices and markets, to provide armed men when trouble was expected, and to raise armies for the crown at times of rebellion, war, or visits from foreign monarchs. from about to , there were % involved in cloth or clothing industries such as weavers, tailors, hosiers, haberdashers, and cappers. % were leatherworkers such as skinners; tanners; those in the heavy leather crafts such as shoemakers, saddlers, and cobblers; and those in the light leather crafts such as glovers and pursers. another % worked in metals, such as the armorers, smiths, cutlers, locksmiths, and coppersmiths. % worked in the building trades. the victualing trades, such as bakers, brewers, butchers, costermongers [sold fruit and vegetables from a cart or street stand], millers, fishmongers, oystermen, and tapsters [bartender], grew from % before to % by . of london's workforce, % were involved in production; % were merchants before ; % were merchants by ; % were transport workers such as watermen, sailors, porters, coachmen, and shipwrights; and - % were professionals and officials (this number declining). life in london was lived in the open air in the streets. the merchant transacted business agreements and the attorney saw his clients in the street or at certain pillars at st. paul's church, where there was a market for all kinds of goods and services, including gentlemen's valets, groceries, spirits, books, and loans, which continued even during the daily service. some gentlemen had offices distant from their dwelling houses such as attorneys, who had a good income from trade disputes and claims to land, which often changed hands. plays and recreation also occurred in the streets, such as performances by dancers, musicians, jugglers, clowns, tumblers, magicians, and men who swallowed fire. the churches were continuously open and used by trades and peddlers, including tailors and letter-writers. water carriers carried water in wood vessels on their shoulders from the thames river or its conduits to the inhabitants three gallons at a time. a gentleman concocted an engine to convey thames water by lead pipes up into men's houses in a certain section of the city. in , a man took out a lease on one of the arches of london bridge. there he built a waterwheel from which he pumped water to residents who lived beside the bridge. soldiers, adventurers, physicians, apprentices, prostitutes, and cooks were all distinguishable by their appearances. an ordinance required apprentices to wear long blue gowns and white breeches with stockings, with no ornamentation of silk, lace, gold or silver and no jewelry. they could wear a meat knife, but not a sword or dagger. apprentices lived with their masters and worked from or a.m. to p.m. some people knitted wool caps as they walked to later sell. there were sections of town for booksellers, butchers, brewers, hosiers, shoemakers, curriers, cooks, poulters, bow makers, textwriters, pattenmakers, and horse and oxen sellers. large merchant companies had great halls for trade, such as the mercers, grocers, drapers, fishmongers, and goldsmiths. the other great guilds were the skinners, merchant tailers, salters, haberdashers, ironmongers, vintners, and clothworkers. smaller guilds were those of the bakers, weavers, fruiterers, dyers, thames watermen and lightermen, carpenters, joiners, turners, and parish clerks. the guilds insured quality by inspecting goods for a fee. about , mercer and merchant adventurer thomas gresham established the royal exchange as a place for merchants and brokers to meet for business purposes. it became the center of london's business life. its great bell rang at midday and at p.m. its courtyard was lined with shops that rented at s. yearly and became a popular social and recreational area. gresham formulated his law that when two kinds of money of equal denomination but unequal intrinsic value are in circulation at the same time, the one of greater value will tend to be hoarded or exported, i.e. bad money will drive good money out of circulation. the work-saving knitting frame was invented in by minister william lee; it knit crosswise loops using one continuous yarn and was operated by hand. the stocking knitters, who knitted by hand, put up a bitter struggle against its use and chased lee out of the country. but it did come into use. some framework stocking knitters paid frame rent for the use of their knitting frames. frame knitting became a scattered industry. by basement services were frequently found in town houses built on restricted sites in london. lastly, provision of water supplies and improved sanitary arrangements reflected concern with private and public health. there was virtually no drainage. in the case of town houses, some owners would go to considerable effort to solve drainage problems, often paying cash to the civic authorities, but sometimes performing some service for the town at court or at westminster, in return for unlimited water or some drainage. most affluent households, including the queen's moved from house to house, so their cesspits could be cleaned out and the vacated buildings aired after use. a few cesspits were made air tight. otherwise, there was extensive burning of incense. refuse was emptied out of front doors and shoveled into heaps on street corners. it was then dumped into the thames or along the highways leading out of town. people put on perfume to avoid the stench. by , the first toilet and water closet, where water flushed away the waste, was built. this provided a clean toilet area all year round. but these toilets were not much used because of sewer smells coming from them. the sky above london was darkened somewhat by the burning of coal in houses. taverns served meals as well as ale. they were popular meeting places for both men and women of all backgrounds to met their friends. men went to taverns for camaraderie and to conduct business. women usually went to taverns with each other. two taverns in particular were popular with the intelligentsia. music was usually played in the background and games were sometimes played. beer made with hops and malt was introduced and soon there were beer drinking contests. drunkenness became a problem. at night, the gates of the city were closed and citizens were expected to hang out lanterns. the constable and his watchmen carried lanterns and patrolled the streets asking anyone they saw why they were out so late at night. crime was rampant in the streets and criminals were executed near to the crime scene. there were a few horse-drawn coaches with leather flaps or curtains in the unglazed windows to keep out the weather. the main thoroughfare in london was still the thames river. nobles, peers, and dignitaries living on the thames had their own boats and landings. also at the banks, merchants of all nations had landing places where ships unloaded, warehouses, and cellars for goods and merchandise. swans swam in the clear bright water. watermen rowed people across the thames for a fee. in southwark were theaters, outlaws, cutpurses, prostitutes, and prisons. in southwark became the th and last ward of the city. in the summer, people ate supper outside in public. as of old times, brokers approved by the mayor and aldermen made contracts with merchants concerning their wares. some contracts included holding wares as security. some craftsmen and manual workers extended this idea to used garments and household articles, which they took as pawns, or security for money loaned. this began pawn brokerage, which was lucrative. the problem was that many of the items pawned had been stolen. elizabeth had good judgment in selecting her ministers and advisors for her privy council, which was organized like henry viii's privy council. the queen's privy council of about twelve ministers handled foreign affairs, drafted official communiques, issued proclamations, supervised the county offices: the justices of the peace, chief constables, sheriffs, lord lieutenants, and the county militias. it fixed wages and prices in london, advised justices of the peace on wages elsewhere, and controlled exports of grain to keep prices down and supplies ample. it banned the eating of meat two days a week so that the fishing industry and port towns would prosper. when grain was scarce in , elizabeth made a proclamation against those ingrossers, forestallers, and ingraters of grain who increased its price by spreading false rumors that it was scarce because much of it was being exported, which was forbidden. there were labor strikes in some towns for higher wages after periods of inflation. in , london authorities rounded up the sturdy vagabonds and set them to work cleaning out the city ditches for d. per day. elizabeth did not allow any gentleman to live in london purely for pleasure, but sent those not employed by the court back to their country manors to take care of and feed the poor of their parishes. her proclamation stated that "sundry persons of ability that had intended to save their charges by living privately in london or towns corporate, thereby leaving their hospitality and the relief of their poor neighbors, are charged not to break up their households; and all others that have of late time broken up their households to return to their houses again without delay." she never issued a license for more than retainers. she was partially successful in stopping justices of the peace and sheriffs from wearing the liveries of great men. she continued the policy of henry vii to replace the rule of force by the rule of law. service of the crown and influence at court became a better route to power and fortune than individual factions based on local power structures. at the lowest level, bribery became more effective than bullying. the qualities of the courtier, such as wit, and the lawyer became more fashionable than the qualities of the soldier. most of the men in elizabeth's court had attended a university, such as francis bacon, son of the lord keeper, who became a writer, attorney, member of the commons, and experimental philosopher, and walter ralegh, the writer and sea fighter, who had a humble origin. many wives and daughters of privy councilors attended the queen in her privy chamber. most of the knights or gentlemen of the royal household were also members of parliament or justices of the peace for certain districts in the counties. instead of the office of chancellor, which was the highest legal office, elizabeth appointed a man of common birth to be lord keeper of the great seal; she never made a lord keeper a peer. elizabeth encouraged her lords to frankly make known their views to her, in public or in private, before she decided on a course of action. she had affectionate nicknames for her closest courtiers, and liked to make puns. the rooms of the queen were arranged as they had been under henry viii: the great hall was the main dining room where the servants ate and which elizabeth attended on high days and holidays; the great chamber was the main reception room, where her gentlemen and yeomen of the guard waited; the presence chamber was where she received important visitors; beyond lay her privy chamber and her bedchamber. she ate her meals in the privy chamber attended only by her ladies. she believed that a light supper was conducive to good health. the lord chamberlain attended the queen's person and managed her privy chamber and her well-born grooms and yeomen and ladies-in-waiting. the lord steward managed the domestic servants below the stairs, from the lord treasurer to the cooks and grooms of the stable. the court did not travel as much as in the past, but became associated with london. elizabeth took her entire court on summer visits to the country houses of leading nobility and gentry. courtiers adopted symbolic "devices" as statements of their reaction to life or events, e.g. a cupid firing arrows at a unicorn signified chastity under attack by sexual desire. they carried them enameled on jewels, had them painted in the background of their portraits, and sometimes had them expressed on furniture, plate, buildings, or food. the authority of the queen was the authority of the state. elizabeth's experience led her to believe that it was most important for a monarch to have justice, temperance, magnanimity, and judgment. she claimed that she never set one person before another, but upon just cause, and had never preferred anyone to office for the preferrer's sake, but only when she believed the person worthy and fit for the office. she never blamed those who did their best and never discharged anyone form office except for cause. further, she had never been partial or prejudiced nor had listened to any person contrary to law to pervert her verdicts. she never credited a tale that was first told to her and never corrupted her judgment with a censure before she had heard the cause. she did not think that the glory of the title of monarch made all she did lawful. to her, clemency was as eminent in supreme authority as justice and severity. secular education and especially the profession of law was now the route for an able but poor person to rise to power, rather than as formerly through military service or through the church. the first stage of education was primary education, which was devoted to learning to read and write in english. this was carried out at endowed schools or at home by one's mother or a tutor. the children of the gentry were usually taught in their homes by private teachers of small classes. many of the poor became literate enough to read the bible and to write letters. however, most agricultural workers and laborers remained illiterate. they signed with an "x", which represented the christian cross and signified its solemnity. children of the poor were expected to work from the age of or . the next stage of education was grammar [secondary] school or a private tutor. a student was taught rhetoric (e.g. poetry, history, precepts of rhetoric, and classical oratory), some logic, and latin and greek grammar. english grammar was learned through latin grammar and english style through translation from latin. as a result, they wrote english in a latin style. literary criticism was learned through rhetoric. there were disputations on philosophical questions such as how many angels could sit on a pin's point, and at some schools, orations. the students sat in groups around the hall for their lessons. the boys and some girls were also taught hawking, hunting and archery. there were no playgrounds. the grammar student and the undergraduate were tested for proficiency by written themes and oral disputations, both in latin. the middle classes from the squire to the petty tradesman were brought into contact with the works of the best greek and roman writers. the best schools and many others had the students read cicero, the "de officiis", the epistles and orations, and some of ovid, terence, sallust, virgil, some medieval latin works, the "distichs" of cato, and sometimes erasmus and sir thomas more. the students also had to repeat prayers, recite the lord's prayer and the ten commandments, and to memorize catechisms. because the students came from the various social classes such as gentlemen, parsons, yeomen, mercers, and masons, they learned to be on friendly and natural terms with other classes. a typical school-day lasted from : am to : pm. there were so many grammar schools founded and financed by merchants and guilds such as the mercers and fishmongers that every incorporated town had at least one. grammar schools were headed by schoolmasters, who were licensed by the bishop and paid by the town. flogging with a birch rod was used for discipline. many grammar schools had preparatory classes called "petties" for boys and girls who could not read and write to learn to do so. the girls did not usually stay beyond the age of nine. this was done by a schoolmaster's assistant, a parish clerk, or some older boys. however, the grammar schools did not become the breeding grounds for humanist ideas because the sovereigns were faced with religious atomism and political unrest, so used the grammar schools to maintain public order and achieve political and religious conformity. some founders of grammar schools linked their schools with particular colleges in the universities following the example of winchester being associated with new college, oxford, and eton with king's college, cambridge. the new charter of westminster ( ) associated the school with christ church, oxford and trinity college, cambridge. the government of oxford university, which had been catholic, was taken from the resident teachers and put into the hands of the vice-chancellor, doctors, heads of colleges, and proctors. cambridge already had a strong reformed element from erasmus' influence. oxford university and cambridge university were incorporated to have a perpetual existence for the virtuous education of youth and maintenance of good literature. the chancellors, masters, and scholars had a common seal. oxford was authorized to and did acquire its own printing press. undergraduate students entered about age and resided in rooms in colleges rather than in scattered lodgings. the graduate fellows of the college who were m.a.s of under three years standing had the responsibility, instead of the university, for teaching the undergraduates. this led many to regard their fellowship as a position for life rather than until they completed their post-graduate studies. but they were still required to resign on marrying or taking up an ecclesiastical benefice. the undergraduates were poor scholars or fee-paying members of the college. some of the fee-paying members or gentlemen-commoners or fellow-commoners were the sons of the nobility and gentry and even shared the fellows' table. the undergraduate students were required to have a particular tutors, who were responsible for their moral behavior as well as their academic studies. it was through the tutors that modern studies fit for the education of a renaissance gentleman became the norm. those students not seeking a degree could devise his own course of study with his tutor's permission. less than about % stayed long enough to get a degree. many students who were working on the seven year program for a master's degree went out of residence at college after the four year's "bachelor" course. students had text books to read rather than simply listening to a teacher read books to them. in addition to the lecturing of the m.a.s and the endowed university lectureships, the university held exercises every monday, wednesday, and friday in which the student was meant through disputation, to apply the formal precepts in logic and rhetoric to the practical business of public speaking and debate. final examinations were still by disputation. the students came to learn to read latin easily. students acted in latin plays. if a student went to a tavern, he could be flogged. for too elaborate clothing, he could be fined. fines for absence from class were imposed. however, from this time until , a young man's university days were regarded as a period for the "sowing of wild oats". all students had to reside in a college or hall, subscribe to the articles of the university, the queen's supremacy, and the prayer book. meals were taken together in the college halls. the universities were divided into three tables: a fellows' table of earls, barons, gentlemen, and doctors; a second table of masters of arts, bachelors, and eminent citizens, and a third table of people of low condition. professors, doctors, masters of arts and students were all distinguishable by their gowns. undergraduate education was considered to be for the purpose of good living as well as good learning. it was to affect the body, mind, manners, sentiment, and business, instead of just leading to becoming a better disputant. the emphasis on manners came mostly from an italian influence. the university curriculum included latin and greek languages and was for four years. the student spent at least one year on logic (syllogizing, induction, deduction, fallacies, and the application of logic to other studies), at least one year on rhetoric, and at least one year on philosophy. the latter included physics, metaphysics, history, law, moral and political philosophy, modern languages, and ethics (domestic principles of government, military history, diplomatic history, and public principles of government), and mathematics (arithmetic, geometry, algebra, music, optics, astronomy). the astronomy taught was that of ptolemy, whose view was that the celestial bodies revolved around a spherical earth, on which he had laid out lines of longitude and latitude. there were lectures on greek and latin literature, including aristotle, plato, and cicero. there were no courses on english history in the universities. about , the curriculum was changed to two terms of grammar, four terms of rhetoric, five terms of dialectic (examining ideas and opinions logically, e.g. ascertaining truth by analyzing words in their context and equivocations), three terms of arithmetic, and two terms of music. there were now negative numbers, irrational numbers such as square roots of non-integers, and imaginary numbers such as square roots of negative numbers. the circumference and area of a circle could be computed from its radius, and the pythagorean theorem related the three sides of a right triangle. also available were astrology, alchemy (making various substances such as acids and alcohols), cultivation of gardens, and breeding of stock, especially dogs and horses. astronomy, geometry, natural and moral philosophy, and metaphysics were necessary for a master's degree. the university libraries of theological manuscripts in latin were supplemented with many non-religious books. there were graduate studies in theology, medicine, music, and law, which was a merging of civil and canon law together with preparatory work for studying common law at the inns of court in london. in london, legal training was given at the four inns of court. students were called to dinner by a horn. only young gentry were admitted there. a year's residence there after university gave a gentleman's son enough law to decide disputes of tenants on family estates or to act as justice of the peace in his home county. a full legal education gave him the ability to handle all family legal matters, including property matters. many later became justices of the peace or members of parliament. students spent two years in the clerks' commons, and two in the masters' commons. besides reading textbooks in latin, the students observed at court and did work for practicing attorneys. after about four more years' apprenticeship, a student could be called to the outer bar. there was a real bar of iron or wood separating the justices from the attorneys and litigants. as "utter barrister" or attorney, he would swear to "do no falsehood in the court, increase no fees but be contented with the old fees accustomed, delay no man for lucre or malice, but use myself in the office of an attorney within the court according to my learning and discretion, so help me god, amen". students often also studied and attended lectures on astronomy, geography, history, mathematics, theology, music, navigation, foreign languages, and lectures on anatomy and medicine sponsored by the college of physicians. a tour of the continent became a part of every gentleman's education. after about eight years' experience, attorneys could become readers and benchers, the latter of whom made the rules. readers gave lectures. benchers, who were elected by other benchers, were entrusted with the government of their inn of court, and usually were king's counsel. five to ten years later, a few of these were picked by the queen for serjeant at law, and therefore eligible to plead at the bar of common pleas. justices were chosen from the serjeants at law. gresham left the royal exchange to the city and the mercer's company on condition that they use some of its profits to appoint and pay seven lecturers in law, rhetoric, divinity, music, physics, geometry, and astronomy to teach at his mansion, which was called gresham college. they were installed in according to his will. their lectures were free, open to all, and often in english. they embraced mathematics and new scientific ideas and emphasized their practical applications. a tradition of research and teaching was established in mathematics and astronomy. many people kept diaries. letter writing was frequent at court. most forms of english literature were now available in print. many ladies read aloud to each other in reading circles and to their households. some wrote poetry and did translations. correctness of spelling was beginning to be developed. printers tended to standardize it. there was much reading of romances, jest books, histories, plays, prayer collections, and encyclopedias, as well as the bible. in schools and gentry households, favorite reading was edmund spenser's "faerie queen" about moral virtues and the faults and errors which beset them, erasmus' new testament, "paraphrases", "colloquies", and "adages", sir thomas north's edition of plutarch's "lives of the noble grecians and romans", elyot's "the book named the governor", and hoby's translation of "the courtier". gentlemen read books on the ideals of gentlemanly conduct, such as "institucion of a gentleman" ( ), and laurence humphrey's "the nobles: or of nobilites". francis bacon's "essays or counsels civil and moral" were popular for their wisdom. in them he commented on many subjects from marriage to atheism. he cautioned against unworthy authority, mass opinion, custom, and ostentation of apparent wisdom. he urged the use of words with their correct meaning. at a more popular level were caxton's "the golden legend", baldwin's "mirror for magistrates", foxe's "book of martyrs" about english protestant who suffered at the stake, sensational stories and pamphlets, printed sermons (including those of switzerland's calvin), chronicles, travel books, almanacs, herbals, and medical works. english fiction began and was read. there were some books for children. books were copyrighted, although non-gentlemen writers needed a patron. at the lowest level of literacy were ballads. next to sermons, the printing press was kept busiest with rhymed ballads about current events. printed broadsheets on political issues could be distributed quickly. in london, news was brought to the governor of the news staple, who classified it as authentic, apocryphal, barber's news, tailor's news, etc. and stamped it. books were also censored for matter against the state church. this was carried out through the stationers' company. this company was now, by charter, the official authority over the entire book trade, with almost sole rights of printing. (schools had rights of printing). it could burn other books and imprison their printers. there were language schools teaching french, italian, and spanish to the aspiring merchant and to gentlemen's sons and daughters. italian business techniques were set forth in textbooks for merchants, using italian terms of business: debit (debito), credit (credito), inventory (inventorio), journal (giornal), and cash (cassa). the arithmetic of accounting operations, including multiplication, was described in "an introduction for to lerne to reckonwith the penne or counters" in . accounting advice was extended to farmers as well as merchants in the "the pathway to perfectness in the accomptes of debitor and creditor" by james peele, a salter of london. it repeated the age-old maxim: ...receive before you write, and write before you pay, so shall no part of your accompt in any wise decay. the "marchants avizo" by johne browne, merchant of bristol, gave information on foreign currencies and keeping of accounts, and included specimens of various business documents such as insurance policies, and bills of exchange. it also advised: take heed of using a false balance or measure...covet not over familiarity amongst men it maketh thee spend much loss of time. be not hasty in giving credit to every man, but take heed to a man that is full of words, that hath red eyes, that goeth much to law, and that is suspected to live unchaste ... when thou promiseth anything be not stuck to perform it, for he that giveth quickly giveth double ... fear god...know thy prince...love thy parents ...give reverence to thy betters ...be courteous and lowly to all men... be not wise in thine own conceit. the old prohibitions of the now declining canon law were still observed. that is one should not seek wealth for its own sake or beyond what was requisite for a livelihood in one's station, exploit a customer's difficulties to extract an extravagant price, charge excessive interest, or engross to "corner the market". the printing press had made possible the methodizing of knowledge and its dissemination to a lay public. knowledge associated with the various professions, occupations, and trades was no longer secret or guarded as a mystery, to be passed on only to a chosen few. the sharing of knowledge was to benefit the community at large. reading became an out-of-school activity, for instruction as well as for pleasure. in , graphite was discovered in england, and gave rise to the pencil. surveying accuracy was improved with the new theodolite, which determined directions and measured angles and used a telescope that pivoted horizontally and vertically. scientists had the use of an air thermometer, in which a column of air in a glass tube sitting in a dish of water contracted or expanded with changes in the temperature, causing the water to move up or down the tube. william shakespeare, a glovemaker's son, wrote plays about historical events and plays which portrayed various human personalities and their interactions with each other. they were enjoyed by all classes of people. his histories were especially popular. the queen and various earls each employed players and actors, who went on tour as a troupe and performed on a round open-air stage, with people standing around to watch. in london, theaters such as the globe were built specifically for the performance of plays, which before had been performed at inns. the audience applauded and hissed. there were costumes, but no sets. ordinary admission was d. before being performed, a play had to be licensed by the master of the revels to make sure that there was nothing detrimental to the peace and public order. elizabeth issued a proclamation forbidding unlicensed interludes or plays, especially concerning religion or government policy on pain of imprisonment for at least fourteen days. the common people still went to morality plays, but also to plays in which historical personages were portrayed, such as richard ii, henry iv, and henry v. some plays were on contemporary issues. musicians played together as orchestras. music and singing was a popular pastime after supper; everyone was expected to participate. dancing was popular with all classes. gentlemen played cards, dice, chess, billiards, tennis, and fenced and had games on horseback. their deer hunting diminished as forests were cut down for agriculture and the deer was viewed as an enemy eating crops. falconry diminished as hedges and enclosures displaced the broad expanses of land. country people enjoyed music, dancing, pantomime shows with masks, hurling, running, swimming, leap frog, blind man's buff, shovelboard played with the hands, and football between villages with the goal to get the ball into one's own village. football and shin-kicking matches often resulted in injuries. they bought ballads from traveling peddlers. early morning dew gathered in may and early june was thought to have special curative powers. there were many tales involving fairies, witches, devils, ghosts, evil spirits, angels, and monsters which were enjoyed by adults as well as children. many people still believed in charms, curses, divination, omens, fate, and advice from astrologers. the ghosts of the earth walked the earth, usually because of some foul play to be disclosed, wrong to be set right, to warn those dear to them of peril, or to watch over hidden treasure. good witches cured and healed. fairies blessed homes, rewarded minor virtues, and punished mild wrongdoing. when fairies were unhappy, the weather was bad. there were parties for children. the merry guild feast was no longer a feature of village life. there were fewer holydays and festivals. the most prosperous period of the laborer was closing. an agricultural laborer's yearly wage was about s., but his cost of living, which now included house rent, was about s. a year. in , daily wages in the summer for an agricultural laborer were about d. and for an artisan d. in in the county of rutland, daily wages for laborers were d. in summer and d. in winter; and for artisans were d. in summer and d. in winter. unemployment was widespread. there were endowed hospitals in london for the sick and infirm. there were others for orphans, for derelict children, and for the destitute. they worked at jobs in the hospital according to their abilities. there was also a house of correction for discipline of the idle and vicious by productive work. elizabeth continued the practice of touching people to cure scrofula, although she could not bring herself to fully believe in the reality of such cures, contrary to her chaplain and her physician. in the towns, shop shutters were let down to form a counter at the front of the shop. goods were made and/or stored inside the shop. towns held a market once a week. fairs occurred once or twice a year. at given times in the towns, everyone was to throw buckets of water onto the street to cleanse it. during epidemics in towns, there was quarantine of those affected to stay in their houses unless going out on business. their houses were marked and they had to carry a white rod when outside. the quarantine of a person lasted for forty days. the straw in his house was burned and his clothes treated. people who died had to be buried under six feet of ground. there was an outbreak of plague in london roughly every ten years. there was a pity for the distressed that resulted in towns voting money for a people of a village that had burned down or been decimated by the plague. communities were taxed for the upkeep and relief of the prisoners in the gaols in their communities. queen elizabeth was puzzling over the proper relationship between the crown and the church when richard hooker, a humble scholar, theologian, and clergyman, attempted to find a justification in reason for the establishment of the church of england as an official part of the governing apparatus of the nation. his thinking was a turning point from the medieval notion that god ordered society, including the designation of its monarch and its natural laws. the belief in a divine structure with a great chain of being, beginning with god and working down through the hierarchy of angels and saints to men, beasts, and vegetables, did foster order in society. hooker restated the concept of aristotle that the purpose of society is to enable men to live well. he wrote that although the monarch was head of state and head of religion, the highest authority in civil affairs was parliament, and in religion, the convocation. the monarch had to maintain divine law, but could not make it. from this came the idea that the state derives its authority from the will of the people and the consent of the governed. protestant women had more freedom in marriage and were allowed to participate in more church activities compared to catholic women, but they were not generally allowed to become pastors. due to sensitivities on the part of both catholics and protestants about a female being the head of the church, elizabeth was given the title of "supreme governor" of the church instead of "supreme head". elizabeth was not doctrinaire in religious matters, but pragmatic. she always looked for ways to accommodate all views on what religious aspects to adopt or decline. images, relics, pilgrimages, and rosaries were discouraged. but the catholic practice of kneeling at prayer, and bowing and doffing caps at the name of jesus were retained. also retained was the place of the altar or communion table at the east end of churches, special communion wafers instead of common bread, and elaborate clergy vestments. the communion prayer contained words expressing both the catholic view that the wafer and wine contained the real presence of the body and blood of christ, and the protestant view that they were commemorative only. communion was celebrated only at easter and other great festivals. church services included a sermon and were in accordance with a reformed prayer book and in english, as was the bible. care was even taken not to use words that would offend the scots, lutherans, calvinists, or huguenots. people could hold what religious beliefs they would, even atheism, as long as they maintained an outward conformity. attendance at state church services on sunday mornings and evenings and holydays was enforced by a fine of d. imposed by the church wardens. babies were to be baptized before they were one month old or the parents would be punished. still, the new religion had to be protected. members of the house of commons, lawyers, schoolmasters were to take the oath of supremacy or be imprisoned and make a forfeiture; a second refusal brought death. when numerous anabaptists came from the continent to live in the port towns, the queen issued a proclamation ordering them to leave the realm because their pernicious opinions could corrupt the church. the new church still accepted the theory of the devil causing storms, but opposed ringing the holy church bells to attempt to drive him away. the sins of people were also thought to cause storms, and also plagues. in , the church of england wrote down its christian protestant beliefs in thirty-nine articles of religion, which specifically excluded certain catholic beliefs. they were incorporated into statute in establishing them as the tenets of the official religion of england. the first eighteen endorsed the ideas of one god, christ as the son of god who was sacrificed for all the sins of men, the resurrection of christ from the dead and ascension into heaven, the holy ghost proceeding from the father and the son, the books of the bible, the original sin of adam and his offspring, justification of man by faith in christ rather than by good works, goods works as the inspired fruit and proof of faith in christ, christ in the flesh as like man except for the absence of sin, the chance for sinners who have been baptised to be forgiven if they truly repent and amend their lives, the predestination of some to be brought by christ to eternal salvation and their minds to be drawn up to high and heavenly things, and salvation only by the name of christ and not by a sect. other tenets described the proper functions of the church, distinguishing them from roman catholic practice. specifically, the church was not to expound one place of scripture so that it was inconsistent with another place of scripture. because man can err, the church was not to ordain or enforce anything to be believed for necessity of salvation. explicitly renounced were the romish doctrine concerning purgatory, pardons, worshipping, adoration of images or relics, invocation of saints, and the use in church of any language, such as latin, not understood by the people. only the sacraments of baptism and the lord's supper were recognized. the lord's supper was to be a sign of the love that christians ought to have among themselves and a sacrament of redemption by christ's death. the wine in the cup of blessing as well as the bread of the lord's supper was to be taken by lay- people and to be a partaking of christ; there was no romish mass. excommunication was limited to those who openly denounced the church. anyone openly breaking the traditions or ceremonies of the church which were approved by common authority were to be rebuked. elizabeth told the bishops that she wished certain homilies to be read in church, which encouraged good works such as fasting, prayer, alms-giving, christian behavior, repentance, and which discouraged idolatry, gluttony, drunkenness, excess of apparel, idleness, rebellion, and wife-beating however provoked. she considered homilies more instructive and learned that ministers' sermons, which were often influenced by various gentlemen and were inconsistent with each other. consecration of bishops and ministers was regulated; and they were allowed to marry. the standard prayer was designated thus: "our father who art in heaven, hallowed be thy name. thy kingdom come. thy will be done, on earth as it is in heaven. give us this day our daily bread, and forgive us our offenses as we forgive those who have offended against us. and lead us not into temptation, but deliver us from evil. for thine is the kingdom, the power, and the glory forever and ever, amen." there was difficulty persuading educated and moral men to be church ministers, even though elizabeth expressed to the bishops her preference for ministers who were honest and wise instead of learned in religious matters. the bible was read at home and familiar to everyone. this led to the growth of the puritan movement. the puritans believed in the right of the individual christian to interpret the scriptures for himself by spiritual illumination. they opposed the mystical interpretation of the communion service. the puritans complained that the church exerted insufficient control over the morals of the congregation. their ideas of morality were very strict and even plays were thought to be immoral. the independent puritans were those protestants who had fled from mary's catholic reign to the continent, where they were persuaded to the ideas of john calvin of geneva. he stressed the old idea of predestination in the salvation of souls, which had in the past been accepted by nearly all english christian leaders, thinkers, and teachers, but not stressed. the act of conversion was a common experience among the early puritans. the concomitant hatred of past sins and love of god which was felt in thankfulness for mercy were proof of selection for salvation. the good works that followed were merely an obligation showing that one's faith was real, but not a way to salvation. but the puritans also accepted calvin's idea of independent church government. they therefore thought that ministers and lay elders of each parish should regulate religious affairs and that the bishops, who were "petty popes", should be reduced to an equality with the rest of the clergy, since they did not rule by divine right. the office of archbishop should be eliminated and the head of state should not necessarily be governor of the church. these ideas were widely disseminated in books and pamphlets. the puritans disrupted the established church's sunday services, tearing the surplice off the minister's back and the wafers and wine from the altar rail. the puritans arranged "lectures" on sunday afternoons and on weekdays. these were given gratuitously or funded by boroughs. they were strict about not working on the sabbath, which day they gave to spiritual exercises, meditations, and works of mercy. the only work allowed was preparing meals for themselves, caring for their animals, and milking the cows. they enforced a strict moral discipline on themselves. the puritan movement included william brewster, an assistant to a court official who was disciplined for delivering, upon pressure from the council, the queen's signed execution order for mary of scotland after the queen had told him to hold it until she directed otherwise. the puritans formed a party in the house of commons. the debased coinage was replaced by a recoinage of newly minted coins with a true silver weight. goldsmiths, who also worked silver, often acted as guardians of clients' wealth. they began to borrow at interest at one rate in order to lend out to traders at a higher rate. this began banking. patents were begun to encourage the new merchant lords to develop local manufactures or to expand import and export trade. patents were for a new manufacture or an improved older one and determined the wages of its trades. there was chartering of merchant companies and granting of exclusive rights to new industries as monopolies. some monopolies or licenses were patents or copyrights of inventors. others established trading companies for trade to certain foreign lands and supporting consular services. people holding monopolies were accountable to the government. there were monopolies on certain smoked fish, fish oil, seal oil, oil of blubber, vinegar, salt, currants, aniseed, juniper berry liquor, bottles, glasses, brushes, pots, bags, cloth, starch, steel, tin, iron, cards, horn, ox shinbones, ashes, leather pieces, earth coal, calamite stone, powder, saltpeter, and lead manufacturing by-products. for far-flung enterprises and those where special arrangements with foreign countries was required, there was sharing of stock of companies, usually by merchants of the same type of goods. in joint-stock companies each member took a certain number of shares and all the selling of the goods of each merchant was carried on by the officials of the company. the device of joint stock might take the form of a fully incorporated body or of a less formal and unincorporated syndicate. the greatest joint-stock company was east india company, chartered in to trade there in competition with the dutch east india company. it was given a fifteen year monopoly on trade east of the southern tip of africa. unlike the muscovy company, and merchants of the staple, individual members could not trade on their own account, but only through the corporate body on its voyages. each particular voyage was regulated and assisted by the crown and privy council, for instance when further subscriptions were needed, or when carpenters were needed to be pressed into service for fitting out ships, or to deal with an unsuccessful captain. its charter retained many of the aspects of the medieval trade guild: power to purchase lands, to sue and be sued, to make by-laws, and to punish offenders by fine or imprisonment. admission was by purchase of a share in a voyage, redemption, presentation, patrimony (adult sons of members), and apprenticeship. purchase of a share in a voyage was the most common method. a share for the first ship cost one hundred pounds. cash payments for less than the price of a share could be invested for ultimate redemption. occasionally presentation or a faculty "for the making of a freeman" was granted to some nobleman or powerful member. members' liability was limited to their individual subscriptions. each voyage had ) a royal commission authorizing the company to undertake the expedition and vesting in its commanders powers for punishing offenses during the voyage, and quenching any mutiny, quarrels, or dissension that might arise; ) a code of instructions from the company to the admiral and to commanders of ships setting forth in great detail the scope and objects of the voyage together with minute regulations for its conduct and trade; ) authorization for coinage of money or export of specie (gold or silver); and ) letters missive from the sovereign to foreign rulers at whose ports the ships were to trade. the first voyage brought back spices that were sold at auction in london for ten times their price in the indies and brought to shareholders a profit equivalent to / % yearly for the ten years when the going interest rate was % a year. town government was often controlled by a few merchant wholesalers. the entire trade of a town might be controlled by its drapers or by a company of the merchant adventurers of london. the charter of the latter as of allowed a common seal, perpetual existence, liberty to purchase lands, and liberty to exercise their government in any part of the nation. it was controlled by a group of rich londoners, no more than , who owned the bulk of the cloth exported. there were policies of insurance given by groups of people for losses of ships and their goods. marine insurance was regulated. new companies were incorporated for many trades. they were associations of employers rather than the old guilds which were associations of actual workers. the ostensible reason was the supervision of the quality of the wares produced in that trade. (shoemakers, haberdashers, saddlers, and curriers exercised close supervision over these wares.) they paid heavily for their patents or charters. there was no sharp line between craftsman and shopkeeper or between shopkeeper and wholesale merchant. in london, an enterprising citizen could pass freely from one occupation to another. borrowing money for a new enterprise was common. industrial suburbs grew up around london and some towns became known as specialists in certain industries. the building crafts in the towns often joined together into one company, e.g. wrights, carpenters, slaters, and sawyers, or joiners, turners, carvers, bricklayers, tilers, wallers, plasterers, and paviors. these companies included small contractors, independent masters, and journeymen. the master craftsman often was a tradesman as well, who supplied timber, bricks, or lime for the building being constructed. the company of painters was chartered with a provision prohibiting painting by persons not apprenticed for seven years. the prosperous merchants began to form a capitalistic class as capitalism grew. competition for renting farm land, previously unknown, caused these rents to rise. the price of wheat rose to an average of s. per quarter, thereby encouraging tillage once more. there was steady inflation. with enclosure of agricultural land there could be more innovation and more efficiency, e.g. the time for sowing could be chosen. it was easier to prevent over-grazing and half-starved animals as a result. the complications of the open system with its endless quarrels and lawsuits were avoided. now noblemen talked about manure and drainage, rotation of crops, clover, and turnips instead of hunting, horses, and dogs. the breed of horses and cattle was improved. there were specializations such as the hunting horse and the coach horse. by royal proclamation of , there were requirements for the keeping of certain horses. for instance, everyone with lands of at least , pounds had to keep six horses or geldings able for demi-lances [rider bearing a light lance] and ten horses or geldings for light horsemen [rode to battle, but fought on foot]. one with under pounds but over marks yearly had to keep one gelding for a light horseman. dogs had been bred into various types of hounds for hunting, water and land spaniels for falconry, and other dogs as house dogs or toy dogs. there were no longer any wild boar or wild cattle. the turkey joined the cocks, hens, geese, ducks, pigeons, and peacocks in the farmyard. manure and dressings were used to fertilize the soil. hay became a major crop because it could be grown on grazing lands and required little care. there are new and bigger industries such as glassware, iron, brasswares, alum and coppers, gunpowder, paper, coal, and sugar. the coal trade was given a monopoly. coal was used for fuel as well as wood, which was becoming scarce. iron smelters increasingly used coal instead of charcoal, which was limited. iron was used for firebacks, pots, and boilers. good quality steel was first produced in with the help of german craftsmen, and a slitting mill was opened in . small metal goods, especially cutlery, was made, as well as nails, bolts, hinges, locks, ploughing and harrowing equipment, rakes, pitch forks, shovels, spades, and sickles. lead was used for windows and roofs. copper and brass were used to make pots and pans. pewter was used for plates, drinking vessels, and candlesticks. competition was the mainspring of trade and therefore of town life. the mode of travel of the gentry was riding horses, but most people traveled by walking. people carried passes for travel that certified they were of good conduct and not a vagrant or sturdy rogue. bands of roving vagabonds terrorized the countryside. after a land survey completed in there arose travel books with maps, itineraries, and mileage between towns in england and wales. also, the queen sent her official mail by four royal postal routes along high roads from london to various corners of the nation. horses are posted along the way for the mail-deliverer's use. however, private mail still goes by packman or common carrier. the nation's inland trade developed a lot. there were many more wayfaring traders operating from town inns. in , the first canal was built with locks at exeter. more locks and canals facilitated river travel. at london bridge, waterwheels and pumps are installed. new sea navigation techniques improved voyages. seamen learned to fix their positions, using an astrolabe or quadrant to take the altitude of the sun and stars and to reckon by the north star. they used a nocturnal, read by touch, to help keep time at night by taking the altitude of the stars. they calculated tides. to measure distances, they invented the traverse board, which was bored with holes upon lines, showing the points of the compass; by means of pegs, the steersman kept an account of the course steered. a log tied to a rope with knots at equal intervals was used to measure speed. there were compasses with a bearing dial on a circular plate with degrees up to noted thereon. seamen had access to compilations of arab mathematicians and astronomers and to navigational manuals and technical works on the science of navigation and the instruments necessary for precision sailing. for merchants there were maps, books about maps, cosmographical surveys, and books on the newly discovered lands. in john mercator produced a map taking into account the converging of the meridians towards the pole. on this chart, a straight line course would correspond to a mariner's actual course through the water on the earth's sphere, instead of having the inaccuracies of a straight line on a map which suggested that the world was flat. it was in use by . in william gilbert, son of a gentleman, and physician to queen elizabeth, wrote a book on the magnetic properties of the earth, which founded the science of electricity. he cultivated the method of experiment and of inductive reasoning from observation and insisted on the need for a search for knowledge not in books but in things themselves. he showed that the earth was a great magnet with a north pole and a south pole, by comparing it to lodestones made into spheres in which a north and south pole could be found by intersecting lines of magnetism indicated by a needle on the stone. the vertical dip of the needle was explained by the magnetic attraction of the north pole. he showed how a lodestone's declination could be used to determine latitude at sea. he showed how the charge of a body could be retained for a period of time by covering the body with some non-conducting substance, such as silk. he distinguished magnetism from electricity, giving the latter its name. he discovered that atmospheric conditions affected the production of electricity, dryness decreasing it, and moisture increasing it. he expounded the idea of copernicus that the earth revolves around the sun in a solar system. however, the prevailing belief was still that the earth was at the center of the universe. christmas was an especially festive time of good fellowship. people greeted each other with "good cheer", "god be with you", or "against the new year". carols were often sung and musicians played many tunes. there was dancing and gambling. there were big dinners with many kinds of meat and drink. a hearty fire heated all the house. many alms were given to beggars. parliament enacted laws and voted taxes. the queen, house of lords, and house of commons cooperated together. there was relatively little dissension or debating. bills were read, voted on, discussed, and passed with the lords, peers, bishops, and justices sitting in their places according to their degree. the justices sat on the wool sacks. a bar separated this area from the rest of the room, where the members of the commons stood. there were many bills concerning personal, local, or sectional interests, but priority consideration was given to public measures. the house of lords still had members. the queen appointed and paid the speaker, clerk, and sergeant at arms of the commons. the knights in the commons were almost invariably from the county's leading families and chosen by consensus of knights with free land of at least s. in the county court. in the towns, the electors might be the town corporation, holders of certain properties, all the freemen, all the rate-payers, or all the male inhabitants. disputed elections were not usually concerned with political issues, but were rivalries for power. the commons gradually won for its members freedom from arrest without its permission and the right of punishing and expelling members for crimes committed. tax on land remained at % of its estimated yearly income. the queen deferred to the church convocation to define christian faith and religion, thus separating church and state functions. the treasury sought to keep a balanced budget by selling royal land and keeping crown expenditures down. the crown carried a slight debt incurred before the queen's accession. theft and robbery were so usual that there were names for various techniques used. a ruffler went with a weapon to seek service, saying that he was a servitor in the wars, but his chief "trade" was to rob poor wayfaring men and market women. a prigman went with a stick in his hand like an idle person, but stole clothes off hedges. a whipjack begged like a mariner, but with a counterfeit license (called a "gibe"); he mostly robbed booths in fairs or pilfered ware from stalls, which was called "heaving of the booth". a frater had a counterfeit license to beg for some hospital, but preyed upon poor women coming and going to market. a quire bird was a person recently let out of prison, and was commonly a horse stealer. an upright man carried a truncheon of a staff and called others to account to him and give him a share or "snap" of all that they had gained in one month, and he often beat them. he took the chief place at any market walk and other assemblies. workers at inns often teamed up with robbers, telling them of wares or money travelers were carrying so the robber could profitably rob them after they left the inn. violence was still a part of the texture of everyday life. private armories and armed gangs were not uncommon. agricultural laborers kept sword and bow in a corner of their fields in the first part of elizabeth's reign. non-political brutal crime and homicides were commonplace. there were frequent local riots and disturbances, in the country and in the towns. occasionally there were large-scale rebellions. but the rebellion of the earl of essex in had no aftermath in violence. in , the queen issued a proclamation enforcing curfew for london apprentices, who had been misruly. the queen issued proclamations to certain counties to place vagrant soldiers or vagrants under martial law because of numerous robberies. she ordered the deportation of vagrant irishmen in . after exhausting every other alternative, the queen reluctantly agreed with her privy council on the execution in of mary, queen of scots, who had been involved in a plot to assassinate her and claim the throne of england. her council had persuaded her that it was impossible for her to live in safety otherwise. francis drake sailed around the world from to . walter ralegh made an expedition to north america in with the queen's authority to "discover barbarous countries, not actually possessed of any christian prince and inhabited by christian people, to occupy and enjoy". he found and named the land of virginia in honor of the queen, who was a virgin, and started a colony on roanoke island there. drake and ralegh plundered spanish ships for cargo such as american gold and silver, much of which was used to pay for the war with spain and much going to investors. seamen on navy and pirate ships raided captured vessels to seize personal possessions of the spanish on board. the experience fighting spanish ships led to improvements in ship design; building ships was no longer merely by copying another ship or a small model. when the seas were unsafe because of the war with spain, the export of english wool was disturbed and later replaced by trading from world ports. mnay london merchants grew rich from using their ships for pirating. in , a spanish armada came to invade england, return it to catholicism, and stop the pirating of spanish ships. in that battle off england's shores, drake and other experienced sea fighters led two hundred english ships, of which about were built to sink other ships rather than to board and capture them. these new english ships were longer and narrower and did away with the towering superstructures at bow and stern. this made them more maneuverable and easier to sail. also, the english guns were lighter, more numerous, and outranged the spanish guns. so the smaller english ships were able to get close enough to fire broadside after broadside against the big spanish troop-transport galleons, without being fired upon. the english sent fire ships into the spanish fleet when it was anchored, causing it's ships to disperse in a panic. then the direction of the wind forced the spanish galleons northward, where most of them were destroyed by storms. the english seamen had been arbitrarily pressed into this service. a royal proclamation of offered a reward of pounds for information on libels against the queen. there had been mounting demonstrations against her monopolies, which mostly affected household items. there had been abuses of monopolies, such as the steel monopoly had been sold for pounds s., but steel was then sold at d. per pound instead of the former / d. per pound. further the steel was mixed and of a lesser quality. this so damaged the knife and sword industry that about workers lost their jobs from it and became beggars. monopoly was a severe burden to the middle and poorer classes. also, the power of patent holders to arrest and imprison persons charged with infringing upon their rights was extended to any disliked person. when the house of commons protested against monopolies in , elizabeth reduced them. she addressed her council and the commons saying that "mr. speaker, you give me thanks, but i doubt me that i have more cause to thank you all than you me; and i charge you to thank them of the lower house from me. for had i not received a knowledge from you, i might have fallen into the lapse of an error only for lack of true information. since i was queen yet did i never put my pen to any grant but that upon pretext and semblance made unto me, it was both good and beneficial to the subject in general, though a private profit to some of my ancient servants who had deserved well. but the contrary being found by experience, i am exceedingly beholding to such subjects as would move the same at the first. and i am not so simple to suppose but that there be some of the lower house whom these grievances never touched; and for them i think they speak out of zeal to their countries and not out of spleen or malevolent affection, as being parties grieved. and i take it exceedingly gratefully from them, because it gives us to know that no respects or interests had moved them other than the minds they bear to suffer no diminution of our honor and our subjects' love unto us, the zeal of which affection tending to ease my people and knit their hearts unto me, i embrace with a princely care. for above all earthly treasures i esteem my people's love, more than which i desire not to merit. that my grants should be grievous unto my people and oppressions to be privileged under color of our patents, our kingly dignity shall not suffer it. yea, when i heard it i could give no rest unto my thoughts until i had reformed it. shall they (think you) escape unpunished that have thus oppressed you, and i have been respectless of their duty and regardless of our honor? no, no, mr. speaker, i assure you, were it not more for conscience' sake than for any glory or increase of love that i desire, these errors, troubles, vexations, and oppressions done by these varlets and low persons (not worthy the name of subjects) should not escape without condign punishment. but i perceive they dealt with me like physicians who, ministering a drug, make it more acceptable by giving it a good aromatical savor; or when they give pills, do gild them all over. i have ever used to set the last judgment day before my eyes and so to rule as i shall be judged, to answer before a higher judge. to whose judgment seat i do appeal that never thought was cherished in my heart that tended not unto my people's good. and now if my kingly bounties have been abused and my grants turned to the hurts of my people, contrary to my will and meaning, or if any in authority under me have neglected or perverted what i have committed to them, i hope good will not lay their culps [sins] and offenses to my charge. who, though there were danger in repealing our grants, yet what danger would i not rather incur for your good than i would suffer them still to continue? i know the title of a king is a glorious title, but assure yourself that the shining glory of princely authority hath not so dazzled the eyes of our understanding but that we well know and remember that we also are to yield an account of our actions before the great judge. to be a king and wear a crown is a thing more glorious to them that see it than it is pleasant to them that bear it. for myself, i was never so much enticed with the glorious name of a king or royal authority of a queen as delighted that god hath made me his instrument to maintain his truth and glory, and to defend this kingdom from peril, dishonor, tyranny, and oppression. there will never queen sit in my seat with more zeal to my country, care to my subjects, and that will sooner with willingness venture her life for your good and safety, than myself. for it is not my desire to live or reign longer than my life and reign shall be for your good. and though you have had and may have many princes more mighty and wise sitting in this seat, yet you never had or shall have any that will be more careful and loving." about , richard hakluyt, a bristol clergyman, wrote "a particular discourse concerning western discoveries". this was to become the classic statement of the case for english colonization. it held out hope that the english would find needed timber for masts, pitch, tar, and ashes for soap. in rome in , giordano bruno, an italian monk and priest, was burned alive at the stake by a court of the inquisition for not recanting, although tortured, his heretical and blasphemous philosophy. he had opined that christianity was irrational and had no scientific basis. he declared that christ was only a skillful magician, that the bible could not be taken literally, that god and nature were not separate as taught by genesis, that the catholic church encouraged ignorance from the instinct of self-preservation, and that the earth and planets revolved around the sun, as did other planets around the "fixed" stars and other suns. the jesuits, a new catholic order brimming with zeal, sent missionaries to england to secretly convert people to catholicism. the practice of catholicism had gone underground in england, and some catholic householders maintained catholic priests in hidden places in their homes. - the law - although estate tails (estates descendible only to the heirs of the body of the original feofee) by law could not be sold or given away, this was circumvented by the fraudulent use of a "straw man". in collaboration with the possessor of the property, this straw man sued the possessor asserting that the property had been wrongfully taken from the straw man. the possessor pleaded that the crier of the court who had warranted the title should be called to defend the action. he failed to appear until after judgment had been given to the straw man. then the straw man conveyed it to the possessor or his nominee in fee simple. no one shall make false linen by stretching it and adding little pieces of wood, which is so weak that it comes apart after five washings. timber shall not be felled to make logs for fires for the making of iron. no one may take small fish to feed to dogs and pigs. only nets with mesh leaving three inches spaces may be used to catch fish. no attainder shall result in the forfeiture of dower by the offender's wife nor disinheritance of his heirs. the following statute of artificers regulated labor for the next two centuries: no master or mistress may employ a servant for a term less than one year in the crafts of clothiers, woolen cloth weavers, tuckers, fullers, clothworkers, shearmen, dyers, hosiers, tailors, shoemakers, glovemakers, tanners, pewterers, bakers, brewers, cutlers, smith, farriers, curriers, saddlers, spurriers, turners, cappers, hatmakers, feltmakers, bow-makers, arrow-makers, arrowhead-makers, butchers, cooks, or millers, so that agriculture will be advanced and idleness diminished. also, every craftsman unmarried or under age who is not working must accept employment by any person needing the craft work. also, any common person between and who is not working must accept employment in agriculture. and, unmarried women between and may be required by town officials to work by the year, the week, or day for wages they determine. all artificers and laborers hired by the day or week shall work from am to pm. all artificers must labor at agriculture at haytime and harvest to avoid the loss of grain or hay. every householder who raises crops may receive as an apprentice a child between and to serve in agriculture until he is age . a householder in a town may receive a child as an apprentice for years, but merchants may only take as apprentices children of parents with s. freehold. (this was designed to inhibit migration to the towns. it excluded three fourths of the rural population.) no one may be a craftsman until he has served seven years as an apprentice. these artificers may have children as apprentices: smith, wheelmaker, ploughmaker, millmaker, miller, carpenter, rough mason, plasterer, a timber sawer, an ore burner, a lime burner, brickmaker, bricklayer, tilemaker, tiler, layer of slate roofs, layer of wood shingle roofs, layer of straw roofs, cooper, earthen potter, linen weaver, housewife who weaves wool for sale or for household use. fish, but no meat, may be eaten on wednesdays so that there will be more fishermen and mariners and repair of ports. (this was done because fishing had declined since the dissolution of the monasteries. eating fish instead of meat in lent in the springtime remained a tradition.) for repairing of highways, the supervisors may take the rubbish or smallest stones of any quarry along the road in their precinct. embezzlement or theft by a servant of his master's goods of s. or more is a felony. no one shall forge a deed of land, charter, sealed writing, court roll or will. no one shall libel or slander so as to cause a rebellion. cut-purses and pick-purses shall not have benefit of clergy. a debtor may not engage in a fraudulent collusion to sell his land and goods in order to avoid his creditors. a person robbing a house of s. by day when no one is there shall not have benefit of clergy, because too many poor persons who cannot hire a servant to look after their house when they go to work have been robbed. when the hue and cry is raised for a robbery in a hundred, and other hundreds have been negligent, faulty, or defective in pursuit of the robber, then they must pay half the damages to the person robbed, while the hundred in which the robbery occurred pays the other half. robbers shall be pursued by horse and by foot. the price of barrels shall be set by mayors of the towns where they are sold. no man under the degree of knight may wear a hat or cap of velvet. caps may not be made of felt, but only knit wool. only hats may be made of felt. this is to assist the craft of making wool caps. every person over years of age shall wear on sundays a wool knitted cap made by the cappers, except for maidens, ladies, gentlewomen, noble persons, and every lord, knight, and gentlemen with , s. of land, since the practice of not wearing caps has damaged the capping industry. this employed cappers and poor people they had employed and the decrepit and lame as carders, spinners, knitters, parters, forsers, thickers, dressers, dyers, battelers, shearers, pressers, edgers, liners, and bandmakers. rugs shall weigh pounds at least and be yards at least in length and at most / yard wide. the incorporated company of ship masters may erect beacons and marks on the seashores and hills above, because certain steeples and other marks used for navigation have fallen down and ships therefore have been lost in the sea. there shall be one sheriff per county, because now there are enough able men to supply one per county. trials of noblemen for treason shall be by their peers. a native or denizen merchant in wholesale or retail goods who leaves the nation to defraud his creditors shall be declared a bankrupt. the chancellor may conduct an investigation to ascertain his land, house, and goods, no matter who may hold them. they shall be appraised and sold to satisfy his debts. loan contracts for money lent may not be for more than s. for each s. yearly (i.e. % interest). all loans of money or forbearing of money in sales of goods not meeting this requirement shall be punishable by forfeit of the interest only. no cattle may be put in any enclosed woods that have been growing less than five years. at the end of five years growth, calves may be put in. at the end of six years growth, cattle may be put in. the mother and reputed father of any bastard who has been left to be kept at the parish where born must pay weekly for the upkeep and relief of such child, so that the true aged and disabled of the parish get their relief and to punish the lewd life. no master at a university may lease any land unless / of it is retained for raising crops to supply the colleges and halls for food for their scholars. persons with s. in goods or s. in lands shall find two able men in their parish community to repair the highways yearly. landowners of oxford shall be taxed for the repair of the highway and bridge there. woods around london shall not be felled to be converted to coals for iron-works because london needs the wood to make buildings and for fireplaces. every melter and maker of wax from honeycombs shall put his mark on every piece of his wax to be sold. wrought wax such as in lights, staff-torches, red wax or sealing wax, book candles, or searing candles shall bear its maker's mark. all barrels of honey shall bear the mark of the honeymaker. wool cloth, cotton cloth, flannel cloth, hose-yarn, hats, and caps shall be dyed black only with dye from the woad plant and not with any false black dye. no one shall take or kill any pheasants with nets or devices at nighttime because such have become scarce. lands, tenements, goods and chattels of accountants teller, or receiver who are in debt may be obtained by court order to satisfy the debt by garnishing the heir of the debtor after the heir has reached and for the years next ensuing. fraudulent and secret conveyances made to retain the use of one's land when one sells the land to a bona fide purchaser for value in fee simple, fee tail, for life, for lives, or for years are void. no new iron mills or furnaces for making or working of any iron or iron metal shall be established in the country around london and the owners of carriages of coals, mines and iron which have impaired or destroyed the highways shall also carry coal ashes, gravel, or stone to repair these highways or else make a payment of s. d. for each cart load not carried. no one shall bribe an elector to vote for a certain person for fellow, scholar, or officer of a college, school, or hall or hospital so that the fittest persons will be elected, though lacking in money or friends, and learning will therefore be advanced. cottage and dwelling houses for workmen or laborers in mineral works, coal mines, or quarries of stone or slate for the making of brick, tile, lime, or coals shall be built only within a mile from such works. dwelling houses beyond this must be supported by four acres of land to be continually occupied and manured as long as the dwelling house is inhabited or else forfeit s. per month to the queen. cottages and dwelling houses for sailors or laborers working on ships for the sea shall be built only within a mile of the sea. a cottage may be built in a forest or park for a game keeper of the deer. a cottage may be built for a herdman or shepherd for the keeping of cattle or sheep of the town. a cottage may be built for a poor, lame, sick, aged, or disabled person on waste or common land. more families than one may not be placed in one cottage or dwelling house. (this is a zoning law.) a vagabond or mighty strong beggar [able to work] shall be whipped. any person with land in fee-simple may establish a hospital, abiding place, or house of correction to have continuance forever as a corporation for the sustenance and relief of the maimed, poor, or disabled people as to set the poor to work. the net income shall not exceed , s. yearly. troops of vagabonds with weapons in the highways who pretend to be soldiers or mariners have committed robberies and murders. so all vagabonds shall settle down in some service or labor or trade. pontage [toll for upkeep and repair of bridges] shall be taken at certain bridges: carts d., horse and pack d., a flock of sheep d. crown officials such as treasurers, receivers, accountants, and revenue collectors shall not embezzle crown funds and shall be personally liable for arrears. persons forcibly taking others across county lines to hold them for ransom and those taking or giving blackmail money and those who burn barns or stacks of grain shall be declared felons and shall suffer death, without any benefit of clergy or sanctuary. no bishop may lease land for more than twenty-one years or longer than the lives of three designated persons. no bishop may alienate any possession of their sees to the crown. such are void. stewards of leet and baron courts may no longer receive, in their own names, profits of the court over d. since they have vexed subjects with grievous fines and amercements so that profits of justice have grown much. incorrigible and dangerous rogues shall be branded with an "r" mark on the left shoulder and be put to labor, because banishment did not work as they came back undetected. if one is caught again begging, he shall be deemed a felon. any innkeeper, victualer, or alehouse keeper who allows drinking by persons other than those invited by a traveler who accompanies him during his necessary abode there or other than laborers and handicraftsmen in towns upon the usual working days for one hour at dinner time to take their diet in an alehouse or other than laborers and workmen following their work to any given town to sojourn, lodge, or victual in any inn, alehouse or victualing house shall forfeit s. for each offense. this is because the use of inns, alehouses, and victualing houses was intended for relief and lodgings of traveling people and people not able to provide their own victuals, but not for entertainment and harboring of lewd and idle people who become drunk. if a person marries a second time while the first spouse is still living, it shall be a felony and thus punishable by death. watermen transporting people on the thames river shall have served as apprentice to a waterman for five years or have been the son of a waterman. this is to prevent the loss of lives and goods by inexperienced watermen. no one may make any hat unless he has served as apprentice for at least seven years. this is to prevent false and deceitful hat- making by unskillful persons. spices and potions, including pepper, cloves, mace, nutmeg, cinnamon, ginger, almonds, and dates, which have usually been garbled [cleaned or sorted by sifting] shall be garbled, cleaned, sorted, and sealed by the garbler before sale. this is to prevent mingled, corrupt, and unclean spices and potions from being sold. plasterers shall cease painting because it has intruded upon the livelihoods of painters who have been apprenticed as such. pawn brokers accepting stolen goods shall forfeit twice their value to the owner from whom stolen. no butcher may cut any hide or any ox, bull, steer, or cow so that it is impaired or may kill any calf under five weeks old. no butcher may be a tanner. no one may be a tanner unless that person has apprenticed as such for seven years, or is the son or wife of a tanner who has tanned for four years, or is a son or daughter of a tanner who inherits his tanhouse. tanners may not be shoemakers, curriers, butchers, or leatherworkers. only tanners may buy raw hides. only leatherworkers may buy leather. only sufficiently strong and substantial leather may be used for sole-leather. curriers may not be tanners. curriers may not refuse to curry leather. london searchers shall inspect leather, seal and mark that which is sufficient, and seize any that is insufficiently tanned, curried, wrought, or used. fishermen and their guides may continue to use the coastland for their fishing activities despite the trespass to landowners. since sails for ships in recent years have been made in the realm instead of imported, none shall make such cloth unless he has been apprenticed in such or brought up in the trade for seven years. this is to stop the badness of such cloth. any person killing any pheasant, partridge, dove, pigeon, duck or the like with any gun, crossbow, stonebow, or longbow, or with dogs and nets or snares, or taking the eggs of such from their nests, or tracing or taking hares in the snow shall be imprisoned for three months unless he pays s. per head or, after one month's imprisonment, have two sureties bound for s. this is because the past penalty of payment hasn't deterred offenders, who frequently cannot pay. persons affected by the plague may not leave their houses or be deemed felons and suffer death. this is to avoid further infection. the towns may tax their inhabitants for the relief of infected persons. tonnage [tax per ton] and poundage [tax per pound] on goods exported and imported shall be taken to provide safeguard of the seas for such goods. all persons must go to the established church on sundays and holy days. the penalty was at first forfeiture d. along with church punishment, and later, pounds per month and being bound by two sureties for pounds for good behavior, and if the pounds is not paid, then forfeiture of all goods to be applied to the amount due and two-thirds of one's land. these laws were directed against catholicism, but were laxly enforced as long as worship was not open and no one wore priestly clothes: the writing, preaching, or maintaining of any foreign spiritual jurisdiction shall be punished by forfeiture of goods or, if the goods are not worth pounds, one year imprisonment, for the first offense; forfeiture of goods and lands and the king's protection, for the second offense; and the penalty for high treason for the third offense. any person leading others to the romish [catholic] religion is guilty of high treason. the penalty for saying mass is [ , s.] marks and one year's imprisonment. the penalty for hearing mass is [ , s.] marks and one year's imprisonment. if one is suspected of being a jesuit or priest giving mass, one must answer questions on examination or be imprisoned. papists [those who in conscience refused to take the oath of supremacy of the crown over the church] must stay in their place of abode and not go five miles from it, unless licensed to do so for business, or else forfeit one's goods and profits of land for life. if a copyholder, land is forfeited to one's lord. but if the goods are not worth s. or the land is not worth at least s., the realm must be abjured. otherwise, the papist is declared a felon without benefit of clergy. if a child is sent to a foreign land for catholic education, he cannot inherit lands or goods or money, unless he conforms to the established church on his return. there is also a pound penalty for the persons who sent him. devising or speaking seditious rumors are penalized by the pillory and loss of both ears for the first offense; and pounds and six months imprisonment for the second offense. slandering the queen is penalized by the pillory and loss of one ear, or by [ , s.] marks and three months imprisonment, at the choice of the offender. the second offense is a felony. printing, writing, or publishing seditious books is a felony without benefit of clergy. wishing the queen dead, prophesying when she would die, or who would succeed her to the crown is a felony without benefit of clergy. attainders for these felonies shall not work corruption of the blood [heirs may inherit the property of the felon]. because the publication of many books and pamphlets against the government, especially the church, had led to discontents with the established church and to the spreading of sects and schisms, the star chamber in held that the printing trade was to be confined to london, except for one press at oxford and one at cambridge. no book or pamphlet could be printed unless the text was first seen, examined, and allowed by the archbishop of canterbury or the bishop of london. book publishers in violation were to be imprisoned for six months and banned from printing; their equipment was to be destroyed. wardens were authorized to search wherever "they shall have reasonable cause of suspicion", and to seize all such books and pamphlets printed. but printers continued to print unlicensed material. - judicial procedure - jurors shall be selected from those people who have at least s. annual income instead of s. because sheriffs have been taking bribes by the most able and sufficient freeholders to be spared at home and the poorer and simpler people, who are least able to discern the causes in question, and most unable to bear the charges of appearance and attendance in such cases have been the jurors. also there had been inflation. defendants sued or informed against upon penal statutes may appear by attorney so that they may avoid the inconvenience of traveling a long distance to attend and put to bail. no only sheriffs, but their employees who impanel juries or execute process in the courts shall take an oath of office. a hundred shall answer for any robbery therein only if there has been negligence or fault in pursuit of the robber after a hue and cry is made because the past law has been too harsh and required payment for offenses from people unable to pay who have done everything reasonable to catch the robber. the star chamber became the central criminal court after , and punished perjury, corruption, malfeasance throughout the legal system such as jury corruption and judicial bribery, rioting, slander, and libel. its procedure was inquisitory rather than accusative. it heard witnesses in camera [not in the presence of the suspected]. trial was by systematic interrogation of the suspected on oath, with torture if necessary in treason cases. silence could be taken for a confession of guilt. there was no jury. queen elizabeth chose not to sit on this court. punishments were imprisonment, fines, the pillory, ear cropping or tacking, whipping, stigmata on the face, but not death or any dismemberment except for the ears. (the gentry was exempt from whipping.) the ecclesiastical high commission [later called the court of high commission or high court of ecclesiastical causes] took over criminal cases formerly heard by the church courts. it also heard matters of domestic morals. it was led by bishops and privy council members who in were authorized by a statute of parliament to keep order within the church, discipline the clergy, and punish such lay offenses as were included in the ecclesiastical jurisdiction. obstinate heresy is still a capital crime, but practically the bishops have little power of forcing heretics to stand trial. if anyone maintains papal authority, he forfeits his goods; on a third conviction, he is a traitor. the clergyman who adopts a prayer book other that the prescribed one commits a crime. excommunication has imprisonment behind it. elizabeth gave this court the power to fine and imprison, which the former church courts had not had. at first, the chief work was depriving papists of their benefices. suits on titles to land were restricted to the common law courts and no longer to be heard in the star chamber, chancery court, or in the court of requests (equity for poor people). the queen's privy council investigated sedition and treason, security of the regime, major economic offenses, international problems, civil commotion, officials abusing their positions, and persons perverting the course of justice. it frequently issued orders to justices of the peace, for instance to investigate riots and crimes, to enforce the statutes against vagrancy and illegal games, to regulate alehouses, to ensure that butchers, innkeepers, and victualers did not sell meat on fish days, and to gather information needed from the counties. the justices of the peace decided misdemeanors such as abduction of heiresses, illegal entry, petty thievery, damage to crops, fence-breaking, brawling, personal feuds, drunken pranks, swearing, profanation of the sabbath, alehouse nuisances, drunkenness, perjury, and malfeasance by officials. they held petty and quarter sessions. the justices of the peace had administrative duties in control of vagrancy, upkeep of roads and bridges, and arbitration of lawsuits referred to them by courts. they listed the poor in each parish community, assessed rates for their maintenance, and appointed overseers to administer the welfare system, deploying surplus funds to provide houses of correction for vagrants. raw materials such as wool, flax, hemp, and iron were bought upon which the able-bodied unemployed could be set to work at the parochial level. they determined wages in their districts, with no statutory ceiling on them, for all laborers, weavers, spinsters, workmen and workwomen working by the day, week, month, or year, or taking any work at any person's hand. there were about justices of the peace per county. all were unpaid. they performed these duties for the next years. the justices of assize rode on circuit twice a year to enforce the criminal law and reported their assessment of the work of the justices of the peace back to the privy council. the duty to hear and determine felonies was taken from justices of the peace by . the justices of assize did this work. accused people could wait for years in gaol before their case was heard. felonies included breach of prison, hunting by night with painted faces, taking horses to scotland, stealing of hawks' eggs, stealing cattle, highway robbery, robbing on the sea, robbing houses, letting out of ponds, cutting of purses, deer-stealing at night, conjuring and witchcraft, diminution of coin, counterfeiting of coins, and impenitent roguery and idleness. the penalty was death. many people were hanged for the felony of theft over d. some bold men accused of felony refused to plead so that they could not be tried and found guilty. they died of heavy weights being placed on their bodies. but then their property could go to their heirs. the court of queen's bench and exchequer indirectly expanded their jurisdiction to include suits between citizens, formerly heard only the court of common pleas or chancery. chancery interrogated defendants. chancery often issued injunctions against suits in the common law courts. trial by combat was very rare. benefit of clergy may not be had for stabbing a person who has no weapon drawn, if he dies within six months. pleadings had to be in writing and oral testimony was given by sworn witnesses. case decisions are in books compiled by various reporters who sit in on court hearings rather than in year books. in the common law, trespass has given rise to the offshoot branch of "ejectment", which becomes the common means of recovering possession of land, no matter what kind of title the claimant asserts. trespass on the case has given rise to the offshoot branch of "trover" [finding another's goods and converting them to one's own use]. the use of the action of trover gradually supplants the action of detinue, which involves compurgation. in the common law courts, the action of assumpsit for enforcing certain promises is used more than the action of debt in those cases where there is a debt based on an agreement. the essential nature of "consideration" in contract is evolving from the procedural requirements for the action of assumpsit. consideration may consist in mutual promises, a precedent debt, or a detriment incurred by one who has simultaneously received a promise related to the detrimental action. consideration must be something, an act, or forbearance of an act that is of value. for instance, forbearance to sue a worthless claim is not consideration. the abstract concept of contract as an agreement between two parties which is supported by consideration is developing as the number of various agreements that are court enforceable expands. for instance the word "consideration" is used in hayward's case in in the court of wards on the construction of a deed. sir rowland hayward was seised in fee of the doddington manor and other lands and tenements, whereof part was in demesne, part in lease for years with rents reserved, and part in copyhold, by indenture, "in consideration of a certain sum of money" paid to him by richard warren and others, to whom he demised, granted, bargained and sold the said manor, lands and tenements, and the reversions and remainders of them, with all the rents reserved upon any demise, to have and to hold to them and their assigns, presently after the decease of sir rowland, for the term of years. it was held that the grantees could elect to take by bargain and sale or by demise, each of which had different consequences. in another case, a delivered s. to b to the use of c, a woman, to be delivered to her on the day of her marriage. before this day, a countermanded it, and called home the money. it was held in the chancery court that c could not recover because "there is no consideration why she should have it". in a case concerning a deed, a sold land to b for s., with confidence, that it would be to the use of a. this bargain "hath a consideration in itself ... and such a consideration is an indenture of bargain and sale". it was held that the transaction was not examinable except for fraud and that a was therefore estopped. a court reporter at the king's bench formulated two principles on consideration of the case of wilkes against leuson as: "the heir is estopped from falsifying the consideration acknowledged in the deed of feoffment of his ancestor. where a tenant in capite made a feoffment without consideration, but falsely alleged one in the deed on an office finding his dying seised, the master of the wards cannot remove the feoffees on examining into the consideration, and retain the land until &c. and though the heir tended, still if he do not prosecute his livery, the queen must admit the feoffees to their traverse, and to have the farm, &c." the court reporter summarized this case as follows: wilkes, who was merchant of the staple, who died in february last past, made a feoffment in the august before his death to one leuson, a knight, and his brother, and another, of the manor of hodnel in the county of warwick; and the deed, (seen) for seven thousand pounds [ , s.] to him paid by the feoffees, of which sum he made acquittance in the same deed (although in fact and in truth not a half-penny was paid), gave, granted, and confirmed &c "habendum eir et hoeredibus suis in perpetuum, ad proprium opus et usum ipsorum a. b. et c. in perpetuum," and not "hoeredum suorum," together with a clause of warranty to them, their heirs and assigns, in forma proedicta: and notwithstanding this feoffment he occupied the land with sheep, and took other profits during his life; and afterwards his death was found on a diem clausit extremum by office, that he died seised of the said manor in fee, and one i. wilkes his brother of full age found his next heir, and a tenure in capite found, and now within the three months the said feoffees sued in the court of wards to be admitted to their traverse, and also to have the manor in farm until &c. and although the said i. wilkes the brother had tendered a livery, yet he had not hitherto prosecuted it, but for cause had discontinued. and whether now the master of the wards at his discretion could remove the feoffees by injunction out of possession upon examination of the said consideration of the said feoffment which was false, and none such in truth, and retain it in the hands of the queen donec et quousque &c. was a great question. and by the opinion of the learned counsel of that court he cannot do it, but the queen is bound in justice to give livery to him who is found heir by the office, or if he will not proceed with that, to grant to the tenderers the traverse, and to have the farm, &c. the request above mentioned. and this by the statutes ... and note, that no averment can be allowed to the heir, that the said consideration was false against the deed and acknowledgment of his ancestor, for that would be to admit an inconvenience. and note the limitation of the use above, for divers doubted whether the feoffees shall have a fee-simple in the sue, because the use is not expressed, except only "to themselves (by their names) for ever;" but if those words had been wanting, it would have been clear enough that the consideration of seven thousand pounds had been sufficient, &c. for the law intends a sufficient consideration by reason of the said sum; but when the use is expressed otherwise by the party himself, it is otherwise. and also the warranty in the deed was "to them, their heirs, and assigns, in form aforesaid," which is a declaration of the intent of wilkes, that the feoffees shall not have the use in fee simple; and it may be that the use, during their three lives, is worth seven thousand pounds, and more &c. and suppose that the feoffment had been "to have to them and their heirs to the proper use and behoof of them the feoffees for the term of their lives for ever for seven thousand pounds," would they have any other estate than for the term of their lives in the use? i believe not; and so in the other case. a last example of a case concerning consideration is that of assaby and others against lady anne manners and others. the court reporter characterized the principle of the case as: "a. in consideration of his daughter's marriage covenants to stand seised to his own use for life, and that at his death she and her husband shall have the land in tail, and that all persons should stand seised to those uses, and also for further assurance. after the marriage he bargains and sell with fine and recovery to one with full notice of the covenants and use; this is of no avail, but on the death of a. the daughter and her husband may enter." the court reporter summarized this case as follows: a. was seised of land in fee, and in consideration of a marriage to be had between his daughter and heir apparent, and b. son and heir apparent of c. he covenanted and agreed by indenture with c. that he himself would have, hold, and retain the land to himself, and the profits of during his life, and that after his decease the said son and daughter should have the land to them and to the heirs of their two bodies lawfully begotten, and that all persons then or afterwards seised of the land should stand and be seised immediately after the marriage solemnized to the use of the said a. for the term of his life, and after his death to the use of the said son and daughter in tail as above, and covenanted further to make an assurance of the land before a certain day accordingly &c. and then the marriage took effect; and afterwards a. bargained and sold the land for two hundred marks [ , s.](of which not a penny is paid) to a stranger, who had notice of the first agreements, covenants, and use, and enfeoffed divers persons to this last use, against whom a common recovery was had to his last use; and also a. levied a fine to the recoverers before any execution had, and notwithstanding all these things a. continued possession in taking the profits during his life; and afterwards died; and the son and daughter entered, and made a feoffment to their first use. and all this matter was found in assize by assaby and others against lady anne manners and others. and judgment was given that the entry and feoffment were good and lawful, and the use changed by the first indenture and agreement. yet error was alleged. the judgment in the assize is affirmed. the famous shelley's case stands for the principle that where in any instrument an estate for life is given to the ancestor, and afterwards by the same instrument, the inheritance is limited whether mediately, or immediately, to his heirs, or heirs of his body, as a class to take in succession as heirs to him, the word "heirs" is a word of limitation, and the ancestor takes the whole estate. for example, where property goes to a for life and the remainder goes to a's heirs, a's life estate and the remainder merge into a fee in a. a can sell or devise this interest. edward shelley was a tenant in tail general. he had two sons. the older son predeceased his father, leaving a daughter and his wife pregnant with a son. edward had a common recovery (the premises being in lease for years) to the use of himself for term of his life, after his decease to the use of the male heirs of his body, and of the male heirs of the body of such heirs, remainder over. after judgment and the awarding of the writ of seisin, but before its execution, edward died. after his death, and before the birth of his older son's son, the writ of seisin was executed. the younger son entered the land and leased it to a third party. afterwards, the son of the older son was born. he entered the land and ejected the third party. it was held that the younger son had taken quasi by descent until the birth of the older son's son. the entry by the older son's son was lawful. the third party was lawfully ejected. (shelley's case, king's bench, , english reports - full reprint, vol. , page .) about , london authorities punished nicholas jennings alias blunt for using elaborate disguises to present himself as an epileptic to beg for handouts from the public. he was pilloried, whipped, and pulled behind a cart through the streets. he was kept at the bridewell and was set to work at a mill. - - - chapter - - - - the times: - - due in part to increasing population, the prices of foodstuffs had risen sixfold from the later s, during which it had been stable. this inflation gradually impoverished those living on fixed wages. landlords could insist on even shorter leases and higher rents. london quadrupled in population. many lands that were in scattered strips, pasture lands, waste lands, and lands gained from drainage and disafforestation were enclosed for the introduction of convertible agriculture (e.g. market-oriented specialization) and only sometimes for sheep. the accompanying extinguishment of common rights was devastating to small tenants and cottagers. gentry and yeomen benefited greatly. there was a gradual consolidation of the land into fewer hands and demise of the small family farm. in towns, the mass of poor, unskilled workers with irregular work grew. prices finally flattened out in the s. society became polarized with a wealthy few growing wealthier and a mass of poor growing poorer. this social stratification became a permanent fixture of english society. poverty was no longer due to death of a spouse or parent, sickness or injury, or a phase in the life cycle such as youth or old age. many full-time wage earners were in constant danger of destitution. more subdivided land holdings in the country made holdings of cottagers minuscule. but these were eligible for parish relief under the poor laws. beside them were substantial numbers of rogues and vagabonds wandering the roads. these vagrants were usually young unmarried men. there were no more licensed liveries of lords. during the time to , there were distinct social classes in england which determined dress, convention in comportment which determined face-to-face contacts between superiors and inferiors, order of seating in church, place arrangement at tables, and rank order in public processions. it was influenced by power, wealth, life-style, educational level, and birth. these classes lived in separate worlds; their paths did not cross each other. people moved only within their own class. each class had a separate existence as well as a different life style from the other classes. so each class developed a wariness of other classes. however, there was much social mobility between adjacent classes. at the top were the gentry, about % of the population. their's was a landed wealth with large estate mansions. they employed many servants and could live a life of leisure. their lady wives often managed the household with many servants and freely visited friends and went out shopping, riding, or walking. they conversed with neighbors and made merry with them at childbirths, christenings, churchings, and funerals. gentlemen usually had positions of responsibility such as lords of manors and leaders in their parishes. these families often sent the oldest son to university to become a justice of the peace and then a member of parliament. they also served as justices and as county officers such as high constable of their hundred and grand jury member. their social, economic, and family ties were at least countywide. they composed about gentle families, including the peers, who had even more landed wealth, which was geographically dispersed. after the peers were: baronets (created in ), knights, esquires, and then ordinary gentlemen. these titles were acquired by being the son of such or purchase. most gentry had a house in london, where they spent most of their time, as well as country mansions. about / of the land was in the hands of , of the nobility and landed gentry due in part to entails constructed by attorneys to favor hereditary interests. the gentry had also profited by commerce and possessions in the colonies. the country life of a country squire or gentleman dealt with all the daily affairs of a farm. he had men plough, sow, and reap. he takes part in the haying and getting cut grass under cover when a rain came. his sow farrows, his horse is gelded, a first lamb is born. he drags his pond and takes out great carps. his horses stray and he finds them in the pound. boys are bound to him for service. he hires servants, and some work out their time and some run away. knaves steal his sheep. his hog is stabbed. he and a neighbor argue about the setting up of a cottage. he borrows money for a daughter's dowry. he holds a leet court. he attends church on sunday and reads the lesson when called upon. he visits the local tavern to hear from his neighbors. country folk brawl. wenches get pregnant. men commit suicide, usually by hanging. many gentlemen spent their fortunes and died poor. new gentlemen from the lower classes took their place. the second class included the wealthier merchants and professional men of the towns. these men were prominent in town government. they usually had close family ties with the gentry, especially as sons. when wealthy enough, they often bought a country estate. the professional men included military officers, civil service officials, attorneys, some physicians, and a few clergymen. the instabilities of trade, high mortality rates in the towns, and high turnover rate among the leading urban families prevented any separate urban interest group arising that would be opposed to the landed gentry. also included in this second group were the most prosperous yeomanry of the countryside. the third class was the yeomanry at large, which included many more than the initial group who possessed land in freehold of at least s., partly due to inflation. freehold was the superior form of holding land because one was free to sell, exchange, or devise the land and had a political right to vote in parliamentary elections. other yeomen were those who possessed enough land, as copyholder or leaseholder, to be protected from fluctuations in the amount of the annual harvest, that is, at least acres. a copyholder rented land from a lord for a period of years or lives, usually three lives including that of the widow, and paid a substantial amount whenever the copyhold came up for renewal. the copyholder and leaseholder were distinguished from the mere tenant-at-will, whose only right was to gather his growing crop when his landlord decided to terminate his tenancy. the average yeoman had a one and a half story house, with a milkhouse, a malthouse, and other small buildings attached to the dwelling. the house would contain a main living room, a parlor, where there would be one or more beds, and several other rooms with beds. no longer was there a central great hall. cooking was done in a kitchen or over the open fire in the fireplace of the main room. furniture included large oak tables, stools, settes or forms, chests, cupboards, and a few hard-backed simple chairs. dishware was wood or pewter. the yeomen were among those who governed the nation. they often became sureties for recognizances, witnesses to wills, parish managers, churchwardens, vestrymen, the chief civil officers of parishes and towns, overseers of the poor, surveyors of bridges and highways, jurymen and constables for the justices of the peace, and sheriffs' bailiffs. the families and servants of these yeomen ate meat, fish, wheaten bread, beer, cheese, milk, butter, and fruit. their wives were responsible for the dairy, poultry, orchard, garden, and perhaps pigs. they smoked and cured hams and bacon, salted fish, dried herbs for the kitchen or of lavender and pot-pourri for sweetening the linen, and arranged apples and roots in lofts or long garrets under the roof to last the winter. they preserved fruits candied or in syrup. they preserved wines; made perfumes, washes for preserving the hair and complexion, rosemary to cleanse the hair, and elder-flower water for sunburn; distilled beverages; ordered wool hemp, and flax to spin for cloth (the weaving was usually done in the village); fashioned and sewed clothes and house linens; embroidered; dyed; malted oats; brewed; baked; and extracted oils. many prepared herb medicines and treated injuries, such as dressing wounds, binding arteries, and setting broken bones. wives also ploughed and sowed, weeded the crops, and sheared sheep. they sometimes cared for the poor and sold produce at the market. some yeomen were also tanners, painters, carpenters, or blacksmiths; and as such they were frequently brought before the justices of the peace for exercising a craft without having served an apprenticeship. the third class also included the freemen of the towns, who could engage independently in trade and had political rights. these were about one-third of the male population of the town. the fourth class included the ordinary farmer leasing by copyhold, for usually years, five to fifty acres. from this class were drawn sidesmen [assistants to churchwardens] and constables. they had neither voice nor authority in government. their daily diet was bacon, beer, bread, and cheese. also in this class were the independent urban craftsmen who were not town freemen. their only voice in government was at the parish level. the fifth and lowest class included the laborers and cottagers, who were usually tenants at will. they were dependent on day labor. they started work at dawn, had breakfast for half an hour at six, worked until dinner, and then until supper at about six; in the summer they would then do chores around the barns until eight or nine. some were hedgers, ditchers, ploughmen, reapers, shepherds, and herdsmen. the cottagers' typical earnings of about s. a day amounted to about shillings a year, which was almost subsistence level. accordingly they also farmed a little on their four acres of land with garden. some also had a few animals. they lived in a one or two room cottage of clay and branches of trees or wood, sometimes with a brick fireplace and chimney, and few windows. they ate bread, cheese, lard, soup, and greens. if a laborer was unmarried, he lived with the farmer. theirs was a constant battle for survival. they often moved because of deprivation to seek opportunity elsewhere. the town wage-earning laborers ranged from journeymen craftsmen to poor casual laborers. the mass of workers in london were not members of guilds, and the crime rate was high. the last three classes also contained rural craftsmen and tradesmen, who also farmed. the variety of trades became very large, e.g. tinsmiths, chain smiths, pewterers, violin makers, and glass painters. the curriers, who prepared hides for shoemakers, coachmakers, saddlers, and bookbinders, were incorporated. the fourth and fifth classes comprised about three fourths of the population. then there were the maritime groups: traders, ship owners, master and seamen, and the fishers. over one fourth of all households had servants. they were the social equals of day laborers, but materially better off with food and clothing plus an allowance of money of two pounds [ s.] a year. those who sewed got additional pay for this work. there was no great chasm between the family and the servants. they did not segregate into a parlor class and a kitchen class. the top servants were as educated as their masters and ate at the same table. great households had a chaplain and a steward to oversee the other servants. there was usually a cook. lower servants ate together. servants were disciplined by cuffs and slaps and by the rod by master or mistress. maids wore short gowns, a large apron, and a gypsy hat tied down over a cap. chamber maids helped to dress their mistresses. servants might sleep on trundle beds stored under their master's or mistress's bed, in a separate room, or on the straw loft over the stables. a footman wore a blue tunic or skirted coat with corded loop fasteners, knee-britches, and white stockings. he walked or ran on foot by the side of his master or mistress when they rode out on horseback or in a carriage and ran errands for him, such as leading a lame horse home or running messages. a good footman is described in this letter: "sir, - you wrote me lately for a footman, and i think this bearer will fit you: i know he can run well, for he has run away twice from me, but he knew the way back again: yet, though he has a running head as well as running heels (and who will expect a footman to be a stayed man) i would not part with him were i not to go post to the north. there be some things in him that answer for his waggeries: he will come when you call him, go when you bid him, and shut the door after him; he is faithful and stout, and a lover of his master. he is a great enemy to all dogs, if they bark at him in his running; for i have seen him confront a huge mastiff, and knock him down. when you go a country journey, or have him run with you a-hunting, you must spirit him with liquor; you must allow him also something extraordinary for socks, else you must not have him wait at your table; when his grease melts in running hard, it is subject to fall into his toes. i send him to you but for trial, if he be not for your turn, turn him over to me again when i come back..." dress was not as elaborate as in elizabethan times. for instance, fewer jewels were worn. ladies typically wore a brooch, earrings, and pearl necklaces. men also wore earrings. watches with elaborate cases were common. women's dresses were of satin, taffeta, and velvet, and were made by dressmakers. pockets were carried in the hand, fastened to the waist by a ribbon, or sewn in petticoats and accessible by a placket opening. the corset was greatly reduced. women's hair was in little natural-looking curls, a few small tendrils on the forehead with soft ringlets behind the ears, and the back coiled into a simple knot. men also wore their hair in ringlets. they had pockets in their trousers, first as a cloth pouch inserted into an opening in the side seam, and later sewn into the side seam. the bereaved wore black, and widows wore a black veil over their head until they remarried or died. rouge was worn by lower class women. the law dictating what classes could wear what clothes was difficult to enforce and the last one was in . merchants who had become rich by pirating could now afford to extend their trading ventures well beyond the atlantic sea. cotton chintzes, calicoes, taffetas, muslins, and ginghams from india now became fashionable as dress fabrics. simple cotton replaced linen as the norm for napkins, tablecloths, bed sheets, and underwear. then it became the fashion to use calicoes for curtains, cushions, chairs, and beds. its inexpensiveness made these items affordable for many. there was a cotton-weaving industry in england from about , established by cotton workmen who fled to england in from antwerp, which had been captured. by , there were automatic weaving looms in london which could be operated by a novice. toothbrushes, made with horsehair, were a new and costly luxury. even large houses now tended to do without a courtyard and became compacted into one soaring and stately whole. a typical country house had deep-set windows of glass looking into a walled green court with a sundial in it and fringed around with small trees. the gables roofs are steep and full of crooks and angles, and covered with rough slate if there was a source for such nearby. there was an extensive use of red tile, either rectangular or other shapes and with design such as fishscales. the rooms are broad and spacious and include hall, great parlor, little parlor, matted chamber, and study. in the hall was still the great, heavy table. dining tables were covered with cloth, carpet, or printed leather. meals were increasingly eaten in a parlor. noble men now preferred to be waited upon by pages and grooms instead of by their social equals as before. after dinner, they deserted the parlor to retire into drawing rooms for conversation and desserts of sweet wine and spiced delicacies supplemented by fruit. afterward, there might be dancing and then supper. in smaller parlors, there was increasing use of oval oak tables with folding leaves. chests of drawers richly carved or inlaid and with brass handles were coming into increased use. walls were wainscotted and had pictures or were hung with tapestry. carpets, rugs, and curtains kept people warm. there were many stools to sit on, and some arm chairs. wide and handsome open staircases separated the floors, instead of the former circular stone closed stairwells. upstairs, the sitting and bedrooms open into each other with broad, heavy doors. bedrooms had four-post beds and wardrobes with shelves and pegs. under the roof are garrets, apple-lofts, and root-chambers. underneath is a cellar. outside is a farmyard with outbuildings such as bake house, dairy, cheese-press house, brewery, stilling house, malt house, fowl house, dove cot, pig stye, slaughter-house, wood house, barns, stable, and sometimes a mill. there were stew-ponds for fish and a park with a decoy for wild fowl. there was also a laundry, carpenter's bench, blacksmith's forge, and pots and equipment of a house painter. in the s, towns were fortified by walled ditch instead of relying on castles, which couldn't contain enough men to protect the townspeople. also in towns, water was supplied by local pumps and wells. in , a thirty-eight-mile aqueduct brought spring water into london. in the country, floors were of polished wood or stone and strewn with rushes. a ladies' attendant might sleep the same bedroom on a bed which slid under the ladies' bed. apprentices and shop boys had to sleep under the counter. country laborers slept in a loft on straw. bread was made in each household. there were bedroom chairs with enclosed chamber pots. wood fires were the usual type. coal was coming in to use in the towns and near coal mines. charcoal was also used. food was roasted on a spit over a fire, baked, or broiled. people still licked their fingers at meals. the well-to-do had wax candles. tallow dips were used by the poor and for the kitchen. people drank cordials and homemade wines made with grapes, currants, oranges, or ginger. some mead was also drunk. tobacco, potatoes, tea, asparagus, kidney beans, scarlet runners, cardoons (similar to artichokes), horseradish, sugarcane, and turkeys for christmas, were introduced from the new world, china, and india. tea was a rare and expensive luxury. coffee was a new drink. with the cane sugar was made sweetened puddings, pies, and drinks. the potato caused the advent of distillation of concentrated alcohol from fermented potato mashes. there was a distiller's company by . distilleries' drinks had higher alcoholic content than wine or beer. the merchant adventurers sold in town stores silks, satins, diamonds, pearls, silver, and gold. there were women peddlers selling hats and hosiery from door to door and women shopkeepers, booksellers, alehouse keepers, linen drapers, brewers, and ale- wives. london had polluted air and water, industrial noise, and traffic congestion. work on farms was still year-round. in january and february, fields were ploughed and harrowed and the manure spread. also, trees and hedges were set, fruit trees pruned, and timber lopped. in march and april, the fields were stirred again and the wheat and rye sown. in may gardens were planted, hop vines trained to poles, ditches scoured, lambs weaned, and sheep watched for "rot". in june sheep were washed and sheared, and fields were spread with lime and clay, and manured. in july hay was cut, dried, and stacked. in august crops were harvested, which called for extra help from neighbors and townsmen who took holidays at harvesting. then there was threshing, and the sowing of winter wheat and rye. in the autumn, cider from apples and perry from pears may be made. by november the fall planting was finished and the time had come for the killing of cattle and hanging up their salted carcasses for winter meat. straw would be laid down with dung, to be spread next spring on the fields. stock that could not live outdoors in winter were brought into barns. government regulated the economy. in times of dearth, it ordered justices of the peace to buy grain and sell it below cost. it forbade employers to lay off workers whose products they could not sell. it used the star chamber court to enforce economic regulations. there were food riots usually during years of harvest failure, in which organized groups seized foodstuffs being transported or in markets, and enclosure riots, in which organized groups destroyed hedges and fences erected in agrarian reorganization to restrict access to or to subdivide former common pasture land. these self- help riots were last resorts to appeals. they were relatively orderly and did not expand into random violence. the rioters were seldom punished more than a fining or whipping of the leaders and action was taken to satisfy their legitimate grievances. the poor came to resent the rich and there was a rise in crime among the poor. penal laws were frequently updated in an effort to bring more order. enclosures of land were made to carry on improved methods of tillage, which yielded more grain and more sheep fleece. drainage of extensive marsh land created more land for agriculture. waste land was used to breed game and "fowling" contributed to farmers' and laborers' livelihoods. killing game was not the exclusive right of landowners, but was a common privilege. the agricultural laborer, who worked for wages and composed most of the wage- earning population, found it hard to make ends meet. in , weekly wages for a mason were s. or s., for a laborer were s. or s., for a carpenter s. or s. an unskilled laborer received s. a day. there were conventions of paternalism and deference between neighbors of unequal social status. a social superior often protected his lessers from impoverishment for instance, the landlord lessened rents in times of harvest failure. a social superior would help find employment for a lesser person or his children, stand surety for a recognizance, intervene in a court case, or have his wife tend a sick member of his lesser's family. a social obligation was felt by most of the rich, the landlords, the yeomen farmers, and the clergy. this system of paternalism and social deference was expressed and reinforced at commonly attended village sports and games, dances, wakes and "ales" (the proceeds of which went to the relief of a certain person in distress), "rush-bearings", parish feasts, weddings, christenings, "churchings" to give thanks for births, and funerals. even the poor were buried in coffins. also there was social interaction at the local alehouse, where neighbors drank, talked, sang, and played at bowls or "shove goat" together. quarrelling was commonplace. for instance, borough authorities would squabble over the choice of a schoolmaster; the parson would carry on a long fight with parishioners over tithe hens and pigs; two country gentlemen would continue a vendetta started by their great-grandfathers over a ditch or hunting rights; the parishioners would wrangle with the churchwardens over the allocation of pews. the position of one's pew reflected social position. men tried to keep the pews of their ancestors and the newly prosperous wanted the recognition in the better pews, for which they had to pay a higher amount. but, on the other hand, farmers were full of good will toward their neighbors. they lent farm and kitchen equipment, helped raise timbers for a neighbor's new barn, sent food and cooked dishes to those providing a funeral feast and to the sick and incurable. village standards of behavior required that a person not to drink to excess, quarrel, argue, profane, gossip, cause a nuisance, abuse wife or children, or harbor suspicious strangers, and to pay scot and bear lot as he was asked. neighbors generally got along well and frequently borrowed and loaned small sums of money to each other without interest for needs that suddenly arose. bad behavior was addressed by mediation and, if this failed, by exclusion from holy communion. there was also whipping and the stocks. marital sex was thought to be good for the health and happiness of the husband and enjoyable by wives. the possibility of female orgasm was encouraged. both women and men were thought to have "seed" and drank certain potions to cause pregnancy or to prevent birth. some argued that orgasm of both partners was necessary for the "seed" of the male and female to mix to produce pregnancy. most women were in a virtual state of perpetual pregnancy. both catholics and protestants thought that god wanted them to multiply and cover the earth. catholics thought that the only goal of sex was procreation. men were considered ready for marriage only when they could support a family, which was usually at about age . brides were normally virgins, but there was bridal pregnancy of about %. women usually married at about age . marriages were usually within one's own class and religion. the aristocracy often initiated matches of their children for the sake of continuity in the family estates and tried to obtain the consent of their children for the match in mind. the age of consent to marry was for boys and for girls. girls in arranged marriages often married at , and boys before they went to university. but the girls usually stayed with their parents for a couple of years before living with their husbands. if married before puberty, consummation of the marriage waited for such time. in other classes, the initiative was usually taken by the child. dowries and marriage portions usually were given by the parents of the bride. wet-nurses frequently were used, even by puritans. there were no baby bottles. many babies died, causing their parents much grief. about / of women's deaths occurred during childbirth. a child was deemed to be the husband's if he was within the four seas, i.e. not in foreign lands, for an agreed length of time. illegitimacy was infrequent, and punished by church-mandated public penance by the mother and lesser penance and maintenance by the father. the church court punished adultery and defamation for improper sexual conduct. the established church still taught that the husband was to be the authority in marriage and had the duty to provide for, protect, and maintain his wife. wives were to obey their husbands, but could also admonish and advise their husbands without reproach. in literature, women were portrayed as inferior to men intellectually and morally as well as physically. in reality wives did not fit the image of women portrayed by the church and literature. quarrels were not uncommon and were not stopped by a husband's assertion of authority. wives were very active in the harvesting and did casual labor of washing, weeding, and stone-picking. farmers' and tradesmen's wives kept accounts, looked after the garden, orchard, pigs, and poultry; brewed beer; spun wool and flax; and acted as agents in business affairs. wives of craftsmen and tradesmen participated actively in their husbands' shops. wives of weavers spun for their husband's employers. wives of the gentry ran their households with their husbands. the lady of a large mansion superintended the household, ordering and looking after the servants, and seeing to the education of her children. mothers handed down their recipes to their daughters. women still did much needlework and embroidering for clothing and house, such as cushions, screens, bed curtains, window curtains, hangings, footstools, book covers, and small chests of drawers for valuables. liking simplicity, puritan women did less of this work. naming one's wife as executor of one's will was the norm. jointures were negotiated at the betrothal of ladies. widows of manorial tenants were guaranteed by law one-third of family real property, despite creditors. but most testators went beyond this and gave a life interest in the farm or family house. so it was customary for a widow to remain in occupation of the land until her death or remarriage. few widows or widowers lived with one of their children. widows usually had their husband's guild rights and privileges conferred upon them, e.g. to receive apprentices. in london, custom gave / of a deceased husband's estate to his wife on his death, but / if there were no children. the other part went according to his will. if a widows did not remarry in memory of her husband, she was esteemed. but remarriage was common because the life expectancy after birth was about years. sons of the well-to-do went into law, the church, the army, or the navy. if not fit for such, they usually went into a trade, apprenticing, for instance, with a draper, silk merchant, or goldsmith. sometimes a son was sent to the house of a great man as a page or esquire to learn the ways of courtiers and perhaps become a diplomat. the guild with its master and their employees was being replaced by a company of masters. about % of the population was catholic, although it was against the law to practice this religion. indeed it long been the practice to sequester their lands, punish them for going to mass, fine them for not attending the established church, banish their priests, and imprison those who aided priests. there was a catholic plot in to blow up parliament and the king with gunpowder and to restore catholicism as the state religion with a catholic king. it was discovered and the conspirators were executed. then there was a crackdown on catholics, with houses being searched for hiding places for priests. also, legislation was passed barring catholics from many offices. james i ruled over both england and scotland. he had come from scotland, so was unfamiliar with english love of their rights, passion for liberty and justice, and extensive discussing of religion and quoting scripture. when he came to the throne, he had a conference with a group of puritans who asked for certain reforms: ceremonies such as the cross in baptism and the ring in marriage should not be used, only educated men competent to preach should be made ministers, bishops should not be allowed to hold benefices that they did not administer, and minor officials should not excommunicate for trifles and twelve-penny matters. he not only denied their requests, but had the english bible revised into the king james version, which was published in . this was to replace the popular geneva bible written by english protestant refugees from catholic queen mary's reign, which he did not like because some of its commentary was not highly favorable to kings. james didn't believe a king had to live by the law; he hadn't as king of scotland. he tried to imbue into england the idea of a divine right of kings to rule that he had held in scotland. the established church quickly endorsed and preached this idea. the selection of the clergy of the parish churches was now often in the hands of the parishioners, having been sold to them by the patron lord of the manor. some patrons sold the right of selection to a tradesman or yeoman who wished to put in his son or a relative. some rights of selection were in the hands of bishops, the colleges, and the crown. the parish clergyman was appointed for life and removed only for grave cause. most parishioners wanted a sermon created by their minister instead of repetitious homilies and constant prayer. they thought that the object of worship in church was to rouse men to think and act about the problems of the world. in , the king mandated that clergymen quote scripture only in context of the book of articles of religion of or the two books of homilies and not preach any sermon on sunday afternoon except on some part of the catechism or some text out of the creed, ten commandments, or the lord's prayer. the puritan movement grew. about % of the protestants were puritans. these included country gentlemen and wealthier traders. they dressed simply in gray or other drab colors and wore their hair short to protest the fashion of long curls. they lived simply and disapproved of dancing because it induced lasciviousness and of theater because of its lewdness. theaters and brothels still shared the same neighborhoods, the same customers, and sometimes the same employees. prostitutes went to plays to find customers; men shouldered and shoved each other in competing to sit next to attractive women to get to know them. the puritans also disapproved of cock fights because they led to gambling and disorder, and maypole celebrations because of their paganism. there was less humor. many became stoics. the puritan church ceremonies were plain, with no ornamentation. puritans prayed several times a day and read the bible to each other in family groups to look for guidance in their conduct and life. they asked for god to intervene in personal matters and looked for signs of his pleasure or displeasure in happenings such as a tree falling close but not touching him, or his horse throwing him without injury to him. when there was an illness in the family or misfortune, they examined their past life for sins and tried to correct shortcomings. they circulated records of puritan lives including spiritual diaries. they believed in the equality of men and that a good man was better than a bad peer, bishop, or king. puritan influence made families closer and not merely dependent on the will of the husband or father. there was a sense of spiritual fellowship among family members as individuals. they emphasized the real need of a lasting love relationship between husband and wife, so a mutual liking that could develop into love between a young couple in an arranged match was essential. most puritans felt that the bishops were as tyrannical as the pope had been and that more reform was needed. they favored the presbyterian form of church government developed by john calvin in switzerland. the presbyter was the position below bishop. parishes were governed by boards consisting of a minister and lay elders elected by the parishioners. these boards sent elected representatives to councils. all lay elders and ministers had equal rank with each other. the calvinist god preordained salvation only for the elect and damnation and everlasting punishment for the rest of humanity, but the puritans had an optimism about avoiding this damnation. they believed that at his conversion a person received grace, which was a sign that he was predestined for salvation. they rejected all ecclesiastical institutions except as established by each parish over its own elected pastor and members. they rejected the established church's control from the top by bishops. they believed in negotiating directly with god for the welfare of the soul without the priest or church organization. the fear of witchcraft grew with puritanism. poor decrepit old defenseless women, often deformed and feeble-minded, were thought to be witches. their warts and tumors were thought to be teats for the devil to suck or the devil's mark. cursing or ill-tempers (probably from old age pains) or having cats were further indications of witchery. when the king learned in that the english puritans had prevented certain recreations after the sunday service, he proclaimed that the people should not be restrained from lawful recreations and exercise such as dancing, may-games, whitsunales, morris-dances, may-pole sports, archery for men, leaping, and vaulting. also women could carry rushes to decorate the church as they had done in the past. (still unlawful on sunday were bear and bull baitings and bowlings.) his stated purpose was to prevent people such as catholics from being deterred from conversion, to promote physical fitness for war, and to keep people from drinking and making discontented speeches in their ale houses. besides the puritans, there were other independent sects, such as the congregationalists, whose churches gathered together by the inspiration of jesus. this sect was started by english merchants residing in holland who set up congregations of englishmen under their patronage there; they kept minister and elders well under their control. the baptists emerged out of the independents. they believed that only adults, who were capable of full belief, and not children, could be baptized. they also believed that it was the right of any man to seek god's truth for himself in the scriptures and that obedience to the state should not extend beyond personal conscience. one fourth of all children born did not live to the age of ten, most dying in their first year. babies had close caps over their head, a rattle, and slept in a sturdy wood cradle that rocked on the floor, usually near the hearth. babies of wealthier families had nurses. the babies of ladies were suckled by wet nurses. parents raised children with affection and tried to prepare them to become independent self-sustaining adults. there was less severity than in tudor times, although the maxim "spare the rod and spoil the child" was generally believed, especially by puritans, and applied to even very young children. in disciplining a child, an admonition was first used, and the rod as a last resort, with an explanation of the reasons for its use. there were nursery rhymes and stories such as "little bo-peep", "jack and the beanstalk", "tom thumb", "chicken little", and robin hood and king arthur tales, and probably also "puss in boots", "red ridinghood", "cinderella", "beauty and the beast", "bluebeard" and aesop's fables. "little jack horner" who sat in a corner was a satire on the puritan aversion to christmas pudding and sense of conscious virtue. toys included dolls, balls, drums, and hobby horses. children played "hide and seek", "here we go around the mulberry bush", and other group games. school children were taught by "horn books". this was a piece of paper with the alphabet and perhaps a religious verse, such as the paternoster prayer, that was mounted on wood and covered with thin horn to prevent tearing. little girls cross-stitched the alphabet and numerals on samplers. block alphabets were coming into use. most market towns had a grammar school which would qualify a student for university. they were attended by sons of noblemen, country squires [poor gentlemen], merchants, and substantial yeomen, and in some free schools, the poor. school hours were from : a.m. to noon or later. multiplication was taught. if affordable, families had their children involved in education after they were small until they left home at about fifteen for apprenticeship or service. otherwise, children worked with their families from the age of seven, e.g. carding and spinning wool, until leaving home at about fifteen. there were boarding schools such as winchester, eton, westminster, st. paul's, and merchant taylors'. there, senior boys selected for conduct and ability supervised younger boys. they thereby got experience for a future in public life. the system was also a check on bullying of the weak by the strong. the curriculum included lilly's "grammar", aesop, terence's roman comic plays, virgil's "aeneid" (the national epic of rome), cicero's "letters" reflecting roman life, sallust's histories showing people and their motives, caesar's "commentaries" on the gallic and civil wars, horace's "epistles" about life and poetry, poet ovid's "metamorphoses" on adventures and love affairs of deities and heroes, or "fasti" on roman religious festivals and customs, donatus' grammar book, and other ancient latin authors. football, with hog bladders, and tennis were played. these schools were self-supporting and did their own farming. private schools for girls were founded in and around london. they were attended by daughters of the well-to-do merchant class, nobility, and gentry. they were taught singing, playing of instruments, dancing, french, fine sewing, embroidery, and sometimes arithmetic. fewer served in the house of some noble lady as before. most commonly, the sons and daughters of gentlemen and nobles were taught by private tutors. a tutor in the house educated the girls to the same extent as the boys. there were not many girls' boarding schools. frequently, the mother educated her daughters. a considerable number of girls of other backgrounds such as the yeomanry and the town citizenry somehow learned to read and write. boys began at university usually from age to , but sometimes as young as . the universities provided a broad-based education in the classics, logic and rhetoric, history, theology, and modern languages for gentlemen and gave a homogenous national culture to the ruling class. there was a humanist ideal of a gentleman scholar. the method of study based largely on lectures and disputations. each fellow had about five students to tutor. in many cases, he took charge of the finances of his students, paying his bills to tradesmen and the college. his reimbursement by the students' fathers put them into friendly contact with the family. the students slept in trundle beds around his bed and had an adjacent room for study. scholasticism was only starting to give way to modern studies. aristotle, whose authority was paramount, remained the lynch pin of university studies, especially for logic and dialectic. the study of rhetoric was based on quintilian, the latin writer, and the greek treatise of hermogenes of tarsus. also studied was cicero's orations as models of style. examination for degrees was by disputation over a thesis of the student. the b.a. degree was given after four years of study, and the m.a. after three more. there were advanced degrees in civil law (after seven more years of study), medicine (after seven years), divinity (required more than seven years), and music. many of the men who continued for advanced degrees became fellows and took part in the teaching. most fellowships were restricted to clerics. oxford and cambridge universities operated under a tutorial system. access to grammar schools and universities was closed to girls of whatever class. oxford university now had the bodleian library. in the universities, there were three types of students: poor scholars, who received scholarships and also performed various kinds of service such as kitchen work and did errands for fellows such as carrying water and waiting on tables; commoners, who paid low fees and were often the sons of economical gentlemen or businessmen; and the fellow commoners (a privileged and well-to-do minority, usually sons of noblemen or great country gentlemen). the fellow commoners paid high fees, had large rooms, sometimes had a personal tutor or servant, and had the right to eat with the fellows at high table. here, gentlemen made friends with their social equals from all over the country. students wore new- fashioned gowns of any colors and colored stockings. they put on stage plays in latin and english. the students played at running, jumping, and pitching the bar, and at the forbidden swimming and football. they were not to have irreligious books or dogs. cards and dice could be played only at christmas time. students still drank, swore, and rioted, but they were disallowed from going into town without special permission. those below a b.a. had to be accompanied by a tutor or an m.a. they were forbidden from taverns, boxing matches, dances, cock fights, and loitering in the street or market. sometimes a disputation between two colleges turned into a street brawl. punishment was by flogging. each university had a chancellor, usually a great nobleman or statesman, who represented the university in dealings with the government and initiated policies. the vice-chancellor was appointed for a year from the group of heads of college. he looked out for the government of halls, enforced the rules of the university, kept its courts, licensed wine shops, and shared control of the town with the mayor. tutors were common. they resided at the boy's house or took boys to board with them at their houses in england or on the continent. the tutor sometimes accompanied his student to grammar school or university. puritans frequently sent their sons to board in the house of some frenchman or swiss protestant to learn the calvinist doctrines or on tour with a tutor. certain halls in the universities were predominately puritan. catholics were required to have their children taught in a home of a protestant, a relative if possible. the inns of court were known as "the third university". it served the profession of law, and was a training ground for the sons of nobility and the gentry and for those entering the service of the commonwealth. the inns were self-governing and ruled by custom. students were to live within the inn, two to a room, but often there were not enough rooms, so some students lived outside the quadrangles. every student was supposed to partake of commons or meals for a certain fraction of the year - from eight weeks to three months and there to argue issues in cases brought up by their seniors. in hall the students were not allowed to wear hats, though caps were permitted, nor were they to appear booted or spurred or carrying swords. for the first two years, they would read and talk much of the law, and were called clerks commoners. after two years they became mootmen or inner barristers. in five or six years they might be selected to be called to the bar as utter barristers, whose number was fixed. there was no formal examination. the utter barrister spent at least three more years performing exercises and assisting in directing the studies of the younger men. after this time, he could plead in the general courts at westminster, but usually carried on law work in the offices of other men and prepared cases for them. participating in moots (practice courts) was an important part of their education. lectures on statutes and their histories were given by readers. physicians were licensed by universities, by the local bishop, or in london, by the college of physicians and surgeons. most were university graduates, and because of the expense of the education, from well-to-do families. for the b.a., they emphasized greek. for the m.a., they studied the works of greek physicians galen and hippocrates, roman physician claudius, and perhaps some medieval authorities. after the m.a., they listened to lectures by the regius professor of medicine and saw a few dissections. three years of study gave them a m.b., and four more years beyond this the m.d. degree. a physician's examination of a patient cost s. the physician asked about his symptoms and feelings of pain, looked at his eyes, looked at his body for spots indicative of certain diseases, guessed whether he had a fever, felt his pulse, and examined his urine and stool. there were no laboratory tests. smallpox was quickly recognized. wrapping red cloth around the person and covering the windows with red cloth being promoted healing without scarring. gout was frequent. syphilis was common in london and other large centers, especially in court circles. it was ameliorated by mercury. an imbalance of the four humors: blood, phlegm, choler, bile was redressed by bloodletting, searing, draining, and/or purging. heart trouble was not easily diagnosed and cancer was not recognized as a life-threatening disease. childbirth was attended by physicians if the patient was well-to-do or the case was serious. otherwise women were attended only by midwives. they often died in childbirth, many in their twenties. the theory of nutrition was still based on the four humors and deficiency diseases were not understood as such. physician william harvey, son of a yeoman, discovered the circulation of the blood from heart to lungs to heart to body about . he had studied anatomy at padua on the continent and received an m.d. there and later at cambridge. then he accepted a position at the hospital of st. bartholomew to treat the poor who came there at least once a week for a year. he agreed to give the poor full benefit of his knowledge, to prescribe only such medicines as should do the poor good without regard to the pecuniary interest of the apothecary accompanying him, to take no reward from patients, and to render account for any negligence on his part. he also dissected animals. one day he noted when stroking downward on the back of one hand with the finger of the other, that a vein seemed to disappear, but that it reappeared when he released his finger. he surmised that there was a valve preventing the blood�s immediate return to the vein. then he ascertained that the heart was a pump that caused pulses, which had been thought to be caused by throbbing of the veins. he tied the arteries and found that the arterial blood flowed away from the heart. he tied the veins and found that venal blood flowed into the heart. he found that the blood flowed from the lungs to the left side of the heart, and from thence was pumped out to the body. blood also flowed from the body to the right side of the heart, from which it was pumped to the lungs. the two contractions closely followed one another, rather than occurring at the same time. the valves in the veins prevented backflow. it was now clear why all the blood could be drained away by a single opening in a vein. it was also clear why a tight ligature, which blocked the arteries, made a limb bloodless and pale and why a looser ligature, which pressed only on the veins, made a limb swell turgid with blood. multiplying an estimate of the amount of blood per beat with the number of beats, he concluded that the amount of blood did not change as it circulated. he concluded that the only purpose of the heart was to circulate the blood. this diminished the religious concept that the heart was the seat of the soul and that blood had a spiritual significance and was sacred. a visit by a physician cost s. d. melancholia, which made one always fearful and full of dread, and mania, which made one think he could do supernatural things, were considered to be types of madness different from infirmities of the body. despite a belief held by some that anatomical investigation of the human body was a sin against the holy ghost, physicians were allowed to dissect corpses. so there were anatomy textbooks and anatomy was related to surgery. barber-surgeons extracted teeth and performed surgery. the white and red striped barber pole initially indicated a place of surgery; the red represented blood and the white bandages. the physicians turned surgery over to the surgeons, who received a charter in by which barbers were excluded from all surgical work except bloodletting and the drawing of teeth. surgeons dealt with skin disease, ulcers, hernia, bladder stones, and broken bones, which they had some skill in setting. they performed amputations, which were without antiseptics or anesthesia. internal operations usually resulted in death. caesarian section was attempted, but did not save the life of the mother. apprenticeship was the route to becoming a surgeon. a college of surgeons was founded. students learned anatomy, for which they received the corpses of four executed felons a year. the apothecaries and grocers received a charter in , but in , the apothecaries were given the sole right to purchase and sell potions, and to search the shops of grocers and stop the sale by them of any potions. in london, the apothecaries were looked over by the college of physicians to see that they were not selling evil potions or poisons. in was the first pharmacy book. there were three hospitals in london, two for the poor, and bedlam [bethlehem] hospital for the insane. others were treated at home or in the physician's home. theaters were shut down in times of plague to prevent spread of disease there. towndwellers who could afford it left to live in the country. shakespeare wrote most of his plays in this period. most popular reading was still bibles, prayer books, psalm books, and devotional works. also popular were almanacs, which started with a single sheet of paper. an almanac usually had a calendar; information on fairs, roads, and posts; farming hints; popularized scientific knowledge; historical information; sensational news; astrological predictions; and later, social, political, and religious comment. many households had an almanac. books tried to reconcile religion and science and religion and passion or sensuality. walter ralegh's "history of the world", written while he was in prison, was popular. ben johnson wrote poetry and satiric comedies. gentlemen read books of manners such as james cleland's "institution of a young noble man" ( ). in , the first regular weekly newspaper was started. although there was a large advance in the quality of boys' education and in literacy, the great majority of the people were unable to read fluently. since writing was taught after one could read fluently, literacy was indicated by the ability to sign one's name. almost all gentlemen and professional men were literate. about half the yeomen and tradesmen and craftsmen were. only about % of husbandmen, laborers, servants, and women were literate. the royal postal system carried private as well as royal letters, to increase income to the crown. postmasters got regular pay for handling without charge the mail of letters that came from or went to the letter office in london. the postmaster kept horses which he let, with horn and guide, to persons riding "in post" at d. per mile. the post was to travel mph in summer and mph in winter and sound his horn four times in every mile or whenever he met travelers. wool and animals for butchering were sold in london with the sellers' agent in london taking the proceeds and paying out to their order, the origin of check writing. scriveners drew up legal documents, arranged mortgages, handled property transactions, and put borrowers in touch with lenders. they and the goldsmiths and merchants developed promissory notes, checks, and private paper money. the influx of silver from the new world was a major factor in the second great inflation in england and in the devaluation of money to about one third of what it had been. also contributing to the inflation was an outracing of demand over supply, and a debasement of the coinage. this inflation benefited tenants to the detriment of their lords because their rents could not be adjusted upward. there was an increase in bankruptcies. houses of correction were built. the elizabethan love of madrigal playing gradually gave way to a taste for instrumental music, including organs and flutes. the violin was introduced and popular with all classes. ballads were sung, such as "barbary allen", about a young man who died for love of her, after which she died of sorrow. when they were buried next to each other, a rose from his grave grew around a briar from her grave. the ballad "geordie" relates a story of a man hanged for stealing and selling sixteen of the king's royal deer. the ballad "matty groves" is about a great lord's fair young bride seducing a lad, who was then killed by the lord. in the ballad "henry martin", the youngest man of three brothers is chosen by lot to turn pirate to support his brothers. when his pirate ship tries to take a merchant ship, there is sea fight in which the merchant ship sinks and her men drown. the ballad "the trees they do grow high" tells of an arranged marriage between a year old woman and the year old son of a great lord. she tied blue ribbons on his head when he went to college to let the maidens know that he was married. but he died at age , after having sired a son. may day was a holiday with dancing around a maypole and people dressed up as characters such as queen of the may, robin hood, little john, friar tuck, maid marion, the fool, and the piper. new year's day was changed to january st. golf was played in scotland, and james introduced it into england. james i was the last monarch to engage in falconry. francis bacon wrote the "advancement of learning" and "novum organum" (new learning) in which he encouraged the use of the inductive method to find out scientific truths and also truths in general, that is reasoning from a sample to the whole. according to him, the only way to arrive at the truth was to observe and determine the correlations of facts. he advocated a process of elimination of hypothesized ideas. first, experiments were made, then general conclusions were drawn from them, and then these generalizations were tested in further experiments. his "new learning" showed the way out of the scholastic method and reverence for dogma into the experimental method. he wrote "natural and experimental history". he studied the effect of cold in preventing animal putrefaction. by this time, what was known about mathematics included fractional exponents, trigonometry in terms of arcs of angles, long division, square root symbol, decimal fractions, methods for solving cubic equations, trigonometry in terms of ratios of sides of a right triangle, equal sign, plus and minus signs, and a consistent theory imaginary numbers. galileo galilei was a professor of mathematics at the university of padua in italy and was later a protege of the powerful medici family. he conducted experiments, e.g. throwing objects off the tower of pisa in to show that all, whether light or heavy, fall at the same rate. this disproved the widely held belief that heavier objects fall faster than light objects. he reasoned by induction from experiments that the force of gravity has the same effect on all objects regardless of their size or weight. his law stated that the speed of their descent increases uniformly with the time of the fall, i.e. speed [velocity] = gravity's acceleration multiplied by time. this was a pioneering mathematization of a physical phenomenon. from his observation that an object sliding along a plane travels increasingly farther and slows down at a decreasing rate as the surfaces become smoother and more lubricated, he opined that the natural state of a body in motion is to stay in motion, and that it is slowed down by a resistant force (�friction�). he conceived of the air giving a frictional force to an object moving through the air. >from his experiments showing that a rolling ball rolls up a plane farther the lesser the slope of the plane, he intuited that if the plane were horizontal, the ball would never stop rolling except for friction. he opined that bodies that are at rest stay at rest and bodies that are in motion stay in uniform motion (�inertia�), unless and until acted upon by some force. this was a radical departure from aristotle's theory that any horizontal motion requires a prime mover. galileo drew a graph of distance versus time for the rolling ball, which indicated that the distance traveled was proportional to the square of the time elapsed. he put his ideas of vertical and horizontal motion together to explain the movement of projectiles, which travel horizontally, but also fall downward vertically. he realized that the movement of a projectile involved a horizontal impetus of projection and a vertical force of gravity, each being independent of the other, but acting simultaneously, instead of sequentially. he demonstrated that a projectile follows the path of a parabola, instead of a straight line, and that it descends a vertical distance which is proportional to the square of the time taken to fall. that is, a thrown object will strike the ground in the same amount of time as an object simply dropped from the same height. this suggested that gravity was a constant force. galilieo described mathematically the motion of a lever such as a seesaw in which the weight on one side multiplied by its distance from the fulcrum is equal to the weight on the other side multiplied by its distance from the fulcrum. galileo determined that a pendulum, such as a hanging lamp, swings back and forth in equal intervals of time. he measured this time with water running through a tube; the weight of the water was proportional to the time elapsed. also, pendulums with equal cord length swing at the same rate, regardless of the substance, weight, or shape of the material at the end. so a pendulum could be a mechanical clock. galileo knew that ice floated on water because ice is less dense and therefore lighter than water. it had formerly been thought that ice was heavier than water, but floated on water because of its shape, especially broad, flat-bottomed pieces of ice. the telescope was invented in . the next year, galileo built a greatly improved telescope to observe bodies in the skies. he observed that the spots on the moon had shifting illumination and that the moon's perimeter had a jagged outline. from this he deduced that the surface of the moon had mountains, valleys, and craters much like the earth, and was illuminated by reflected light. he noticed that the planet jupiter had moons orbiting it in a manner similar to the orbit of the earth's moon. he observed that when the planet venus was very small it had a round shape and when it was very large (and therefore nearer the earth), it had a crescent shape. also, venus progressed through periodic phases of increasingly wide crescent shapes in a manner similar to the phases of crescent shapes of the earth's moon. he realized that these features of venus could be explained only if venus revolved around the sun, rather than around the earth. this finding added credence to the copernican theory that the earth and all planets revolve around the sun. but church doctrine that the sun revolved around the earth was supported by the biblical story of god making the sun stand still to give additional sunlight on a certain day so a certain task could be completed that day. galileo argued against a literal interpretation of the bible, so he was denounced by the church. his finding of sunspots on the sun conflicted with church doctrine that the celestial bodies such as the sun were perfect and unblemished. his observation that certain sun spots were on certain locations of the sun, but changed location over time, suggested that the sun might be rotating. he observed that when air was withdrawn by a suction pump from the top of a long glass tube whose lower open end was submerged in a pan of water, the water rose to a height of feet and no higher. this result indicated that the evacuated space above the water was a vacuum: an empty space. the notion of a vacuum, a space where there is nothing or void, was difficult for philosophers to accept. they believed that nature abhored a vacuum and would prevent it. about , galileo invented the first thermometer by heating air at the top of a tube whose open end was in a bowl of water; as the top end cooled, the air contracted and water rose part way up the tube; the column of water rose or fell with every change of temperature. galileo invented the compound refracting microscope, which used more than one lens, about . galileo's book on the arguments for and against the copernican theory was unexpectedly popular when published in . the general public was so persuaded by the arguments that the earth revolved around the sun that papal authority felt threatened. so galileo was tried and convicted of heresy and sentenced to prison as an example to others who might question church doctrine, even though the seventy year old galileo recanted and some of the inquisition judges who convicted him believed the copernican theory and their decision did not assert the contrary. john napier, a large calvinist landholder in scotland who had built his own castle, did mathematics in his older years. he explored imaginary numbers, which involve square roots of negative numbers. by , he had started and developed the theory of logarithms: the relationships among positive and negative exponents of numbers. this simplified calculations because the multiplication and division of numbers with a common base could be done by addition and subtraction of their exponents. his table of logarithms, which took him twenty years to compile, was used in trigonometry, navigation, and astronomy. it reduced the enormous labor involved in trigonometric calculations. in , willliam oughtred invented the slide rule for calculations. johannes kepler was a mathematician from germany who made his living as an astrologer. he was in contact with galileo by letter, as most scientists of europe were with each other. kepler was fascinated with perfect geometric shapes, which he tried to relate to celestial phenomenon. he discerned that the orbit of mars was not perfectly circular. he knew that the apparent path of the sun with respect to the constellation of fixed stars differed in speed at different times of the year. he opined that this showed that the speed of the earth revolving around the sun varied according to the time of year. then he measured the angles between the earth and the sun and the earth and mars as they changed through the martian year. he noted when the earth, mars, and the sun were on the same straight line. then he deduced the earth's true orbit, and from this the true orbits of the other planets. then by trial and error, he attempted to match this empirical data with regular mathematically defined shapes, until he discovered in that these paths were elliptical. also, the planets each move faster when they are nearer the sun and more slowly when they are farther from the sun so that in equal time intervals, a line from the planet to the sun will sweep out equal areas. this observation led him to opine that there is a force between the sun and each planet, and that this force is the same as that which keeps the moon in its orbit around the earth. thirdly, in , he found that the square of the time for each planet's orbit about the sun is proportional to the cube of that planet's mean distance from the sun, so that the farther planets orbit at a slower speed. he connected the earth's tides with the gravitational pull of the moon. kepler also confirmed that the paths of comets were governed by a law and were farther from the earth than the moon. this contradicted the church's explanation that what lies within the moon's orbit pertains to the earth and is essentially transitory and evil, while what lies beyond belongs to the heavens and is permanent and pure. renee descartes, a french mathematician, scientist, and philosopher, had a revelation that the structure of the universe was mathematical and that nature obeyed mathematical rules. in , he invented analytic [cartesian] geometry, in which lines and geometric shapes can be described by algebraic equations and vice-versa. all conic sections: circles, ellipses, parabolas, and hyperbolas, could be represented by equations with two unknowns, or variables, on a coordinate system in which each point is represented by a pair of numbers representing distances from the two axis lines. an algebraic equation with two unknowns, could be represented as a shape thereon. an algebraic equation with one unknown represented a straight line thereon. the points of intersection geometrically was equivalent to the common solution of the associated algebraic equations. he started the convention of representing unknown quantities by x, y, and z and known quantities by a, b, and c. so, for instance, a circle with center at point , and a radius of was represented by the equation: (x- ) squared + (y- ) squared = . he pioneered the standard exponential notation for cubes and higher powers of numbers. analytic geometry aided in making good lenses for eyeglasses. the glass was first manufactured with attention to quality. then, after it cooled and solidified, the clearest pieces were picked and their surfaces ground into the proper curvature. descartes formulated the law of refraction of light, which deduces the angle of refraction [deflection] of light through a medium from the lights' angle of incidence and the speed of light in each media in which the light passes. this explained why a rainbow is circular. in , he described the universe in terms of matter and motion and suggested that there were universal laws and an evolutionary explanation for such. he opined that all effects in nature could be explained by spatial extension and motion laws that ) each part of matter retains the shape, size, motion, or rest unless collision with another part occurs; ) one part of matter can only gain as much motion through collision as is lost by the part colliding with it; and ) motion tends to be in a straight line. descartes feared persecution by the church because his ideas did not correlate with the biblical notion of god's creation of the universe in the order of light, then sky and oceans and dry land, then plants, then seasons and the sun and moon and stars, then fish and birds, then all animals, and finally man. descartes believed in a good and perfect god, and thought of the world as divided into matter and spirit. the human mind was spirit and could exist outside the human body. without the mind, human body was a machine. the human mind had knowledge without sense experience, e.g. the truths of mathematics and physics. ideas and imagination were innate. his observation that sensory appearances are often misleading, such as in dreams or hallucinations, led him to the conclusion that he could only conclude that: "i think, therefore i am." he rejected the doctrine that things had a proper behavior according to their natures, e.g. the nature of acorns is to develop into oak trees. as an example of erroneous forming of conceptions of substance with our senses alone, he pointed out that honeycomb has a certain taste, scent, and texture, but if exposed to fire, it loses all these forms and assumes others. he considered to be erroneous the belief that there are no bodies around us except those perceivable by our senses. he was a strong proponent of the deductive method of finding truths, e.g. arguing logically from a very few self- evident principles, known by intuition, to determine the nature of the universe. christian huygens, a dutch physicist, used the melting and the boiling point of water as fixed points in a scale of measurements, which first gave definiteness to thermometric tests. there was much mining of coal, tin, copper, lead, and iron in the s. coal was transported from the coal pits down to the rivers to be loaded onto ships on coal wagons riding on wooden rails. the full coal cars could then be sent down by gravity and the empty wagons pulled up by horses. sheet metal, e.g. lead, was used for roofing. coal was much used for heating houses, and for laundry, cooking, and industrial use, such as extraction of salt, soap boilers, and manufacture of glass, bricks and tiles for buildings, anchors for ships, and tobacco pipes. it was used in the trades: bakers, confectioners, brewers, dyers, sugar refiners, coopers, starch makers, copper workers, alum makers, and iron workers. in the haberdashers, who sold imported felt for hats, got a charter of incorporation. a tapestry factory was established in . flax-working machines came into existence. as attorney general, edward coke was impassioned and melodramatic. he once described the parts of the penalty of treason as follows: being drawn to the place of execution reflected the person's not being worthy any more to tread upon the face of the earth; being drawn backward at a horse tail was due to his retrograde nature; being drawn head downward on the ground indicated that he was unfit to breathe the common air; being hanged by the neck between heaven and earth indicated that he was unworthy of either; being cut down alive and his privy parts cut off and burnt before his face indicated he was unworthily begotten and unfit to leave any generation after him; having his bowels and inners taken out and burnt indicated he had inwardly conceived and harbored such horrible treason; his head cut off, which had imagined the treason, and his body to be quartered and the quarters set up to the view and detestation of men a prey for the fowls of the air. coke was subsequently elevated to the position of chief of common pleas and then to chief of the king's bench. but there coke propounded a doctrine of the supremacy of the law over the king as well as over parliament. for instance, coke would not agree to stay any case in which the king had a concern in power or profit, to consult with him. but the other eleven justices did agree. since james i believed in the divine right of kings, he therefore dismissed coke from his position as chief justice of the king's bench. james even believed that he could suspend any law for reasons known only to him and issue proclamations that were not limited to the reinforcement of old laws, but made new offenses with punishment of fine and/or imprisonment. coke then became a member of parliament and led the commons, where he exalted the authority of parliament vis a vis the king; that is, the king could not make any changes in law, religion, or taxation without consent of parliament. james arrested coke and two other members of the commons and put its leader john pym under house arrest for their outspoken opinions against the king's intended alliance with catholic spain and intended taking of a spanish wife. because of the deadlock that developed between the king and parliament, certain matters could not be addressed by legislation and were left to be decided judicially. this made judicial review of disputes important. james vastly increased the number of peerages, selling many, for example for , pounds. since there was a tacit understanding that members of parliament would not accept remuneration, this restricted eligibility for membership to the rich. the house of commons was composed mostly of attorneys, merchants from the large towns, and country gentlemen. the gentry members had pounds [ , s] annual income from land and the burgess members had pounds [ , s.] in addition to the two knights from every county (elected by men holding at least forty-shilling freeholds), four representatives from london, and one or two from every other borough (generally elected by the top business families), there was a representative from each of the two universities. for speaker, they always chose someone suggested to them by the crown. he decided who would talk and could hasten or delay bills, usually for the benefit of the crown. the clerk, a lifetime appointment of the crown, wrote out the bills and their amendments and kept track of proceedings. many in the commons were puritan in sympathy. in , the house of commons developed a committee system to avoid being presided over by the royally designated speaker. a committee could consist of all the members of the house of commons with an elected chairman. an increasing number of issues were discussed in committee before coming to the commons and the commons came to ratify readily what had been done in committee. by , there had developed in the house of commons an opposition to feudal tenures, purveyance, wardships, and impositions (special import and export duties on aliens set by the king without the consent of parliament that were supposed to be for the purpose of regulating trade instead of for revenue). there was also a call for free speech and an end to the king's habit at the end of parliament of imprisoning for a time those who had been too outspoken. the commons also asserted itself into foreign affairs by expressing an opinion against a treaty proposed by the king on which war could ensue. the treaty was abandoned. in london, organized groups such as the apothecaries, the skinners, and the grocers, were circulating printed statements of their cases to members of committees of the house of commons rather than just seeking out a friendly privy council member. in , the protests made to committeemen about monopolies sold by james frightened him into canceling many of them. he had made many grants against competition in violation of law. the right of the commons to expel a member was asserted by the expulsion of a monopolist. by , the speeches of prominent members and the course of proceedings were copied by stationers and sold in a weekly news report. the king's privy council dealt constantly with foreign affairs, and also with the great companies, and problems arising such as gold leaving the country, the dutch ships increased efficiency in transporting goods, the declining market for english cloth, strikes in the mining industry, decaying harbor works, the quality of food and drink, the wrongs done to the poor, and above all, the general peace and order. they formed commissions to study situations and sent orders to justices of the peace on methods to address certain problems and to sheriffs to carry out certain acts. about , a group within the privy council began to concentrate on foreign affairs, especially "cabinet counsels", that is, with secret matters. james sold high offices of state to supplement his income. his income from customs had increased so much that it was now three times that from crown lands. the sheriff looked after crown lands and revenues in his county. he gathered the rents, the annuities, the stray animals, the deodands, the fees due to the king, the goods of felons and traitors. he was still a means of communication between the privy council and the county. he announced new statutes of parliament and proclamations by the king at the county courts and in the markets. he used posse comitatus to disperse riots. he was the functionary of the assize court, impaneling its juries, bringing accused men before it, and carrying out its penalties. he carried out elections of members of the house of commons. there were two high constables for each hundred. they were chosen by the justices of the peace at quarter sessions, and were usually small gentry or well-to-do yeomen. they were the intermediaries between the justices and the petty constables. the petty constable was the executive official of the village. he was usually elected by the suitors to the leet court of the manor for a year. he might be a farmer, an artisan, a carpenter, a shoemaker, or many times a tradesman, a butcher, or baker. he often visited the alehouse to learn of any trouble in the making. he would intervene in quarrels and riots and tell the participants to desist in the king's name. if they didn't, he could call on all bystanders to help him "force a quiet". he had to lead the rioters and causers of injuries to others, hold them there until he could bring him before the nearest justice. he would inform the justice of plots to trespass or forcibly enter land to take possession. he saw to it that no new cottages were built in the villages without due authority. he supervised markets and inns. he reported lapses of care for apprentices by their masters to the justice. at harvest time, he called upon all able bodied persons to assist and punished those who didn't respond by putting them in the stocks or fining them forty shillings. he arrested and whipped vagrants and sturdy rogues and sent them back to their place of birth through constables on the way. if a horse was stolen, he raised the hue and cry to all neighboring constables. he made inquiry into the paternity of the coming child of an unmarried pregnant girl to make him take responsibility for the child and pay her d. a week lest it fall into the responsibility of the village. in a town, he might have watchmen to help him see that the streets were peaceful at night. the constable assisted the justice of the peace, the high constable, and the sheriff. he pressed men into military service. he collected taxes for the sheriff and collected the money for purveyance, the money for the poor, maimed soldiers, and various kinds of prisoners, which the parish had to pay. he was often the spokesman for the village in village concerns, such as too many alehouses, brought to the attention of justices at quarter sessions. the constable and churchwardens together collected money for the parish, looked after the needy, and kept in close touch with the overseers of the poor, who cared for the sick and old, found work for the idle, took charge of bastards, apprenticed orphan children, and provided supplies for the workhouse. in the east india company was given a monopoly by the crown that was indefinitely long as long as it was profitable to the realm in the king's opinion. interlopers were to forfeit their ships and goods, one-half to the company and one-half to the crown. monopoly status made the company competitive with the dutch and portuguese monopoly companies. the crown received a gift or a loan from the company in return. at first, the company raised capital for each separate voyage. but voyages tried to undercut each other and rival factions squabbled over cargoes. so the company then raised a "terminable joint-stock" for a period of years. the first of these was issued in - and financed a fleet every year for four years. subscriptions were called in by yearly installments and dividends paid out yearly. the voyage of brought shareholders a profit equivalent to about % a year. by , the company operated thirty to forty "tall ships", many built in its own dockyards. these dockyards were so technologically advanced that they were daily viewed by visitors and ambassadors. here, besides wet and dry docks, there were timber yards, a foundry and cordage works for supplying the ships' hardware and a bakery and saltings for their provisioning. more than craftsmen were directly employed in the yard. overall the company was one of london' largest employers. in , the first charter of the virginia company was issued for trading purposes. it gave the settlers "all liberties, franchises, and immunities" they had in england. to oversee this colony, the crown appointed a council. virginia established the episcopal church by law. virginia became a joint-stock company in . but exports were few (timber, soap ashes, pitch, tar, and dyes) for several years, and then tobacco emerged as a source of profit. king james imposed a heavy duties on imported tobacco because it corrupted man's breath with a stinking smoke. in , the muscovy company, hired henry hudson to find a northwest passage through north america to the pacific ocean. life was difficult for puritan separatists, who wanted to separate from the established church. they were imprisoned and their houses were watched day and night for illegal meetings. in , after trying holland and when there was a depression in england, a few puritan separatists, along with other pilgrims, left for virginia in the mayflower, but landed in new england and founded plymouth colony. they were led by william bradford and william brewster, their spiritual leader. they planted fields and made friends with the indians. in , they secured a patent to the merchants and planters together for a voluntary joint-stock company in new england. later, it became the self-governing massachusetts bay colony. the canons of the church of provided for excommunication for anyone who propounded that the king did not have the same authority in ecclesiastical matters as the godly kings among the jews and christian emperors in the primitive church, that the church of england was not a true and apostolic church, that worship according the book of common prayer and administration of sacraments was corrupt or superstitious, or that other methods of the church were wicked, unchristian, or superstitious. church sanctuary was abolished for those accused of criminal offenses because it had been abused by thieves paying their rent by thieving at night. it remained available to those accused of civil offenses. - the law - churchwardens of every parish shall oversee the poor in their parish. they shall, with consent of the justices of the peace, set to work children whose parents cannot maintain them and also set to work married or unmarried persons who have no trade and no means to maintain themselves. churchwardens shall tax every inhabitant, including parson and vicar and every occupier of land and houses, as they shall think fit. there will be a convenient stock of flax, hemp, wool, thread, iron and other necessary ware and stuff to set the poor on work. there will be competent sums of money for the relief of the lame, impotent, old, blind, and others not able to work, and also for the putting out of children to be apprentices. child apprentices may be bound until years of age or until time of marriage. they shall account to the justices of the peace for all money received and paid. the penalty for absence or neglect is s. if any parish cannot raise sufficient funds, the justices of the peace may tax other nearby parishes to pay, and then the hundred, and then the county. grandparents, parents, and children of every poor, old, blind, lame, or impotent person not able to work, being of sufficient ability, shall at their own charge, relieve and maintain every such poor person in that manner and according to that rate as justices of the peace of that county determine, or else forfeit s. per month. two justices of the peace may commit to gaol or house of correction persons refusing to work and disobedient churchwardens and overseers. the overseers may, with the consent of the lord of the manor, build houses on common or waste land for the poor at the expense of the parish, in which they may place more than one family in each house. every parish shall pay weekly - d. toward the relief of sick, hurt, and maimed soldiers and mariners. counties with more than fifty parishes need pay only - d. the county treasurer shall keep registers and accounts. soldiers begging shall lose their pension and shall be adjudged common rogues or vagabonds subject to imprisonment and punishment. sheriffs summoning defendants without a writ shall pay s. and damages to the defendant, and s. to the king. persons stealing crops from lands or fruit from trees shall be whipped. since administrators of goods of people dying intestate who fail to pay the creditors of the deceased often can't pay the debts from their own money, the people (who are not creditors) receiving the goods shall pay the creditors. every person shall receive the holy communion in church at least once a year or else forfeit pounds for the first year and pounds for the second year, and threescore pounds for every year after until he takes the said sacrament. no person convicted of catholicism may practice the common law as a counsellor, clerk, attorney, or solicitor, nor may practice civil law as advocate, or proctor, nor shall be justice, minister, clerk, or steward in any court, nor practice medicine, nor perform as apothecary, nor be officer in a town, in the army, or navy, or forfeit pounds as punishment. nor may they be administrators of estates, or have custody of any child as guardian. nor may they possess any armor, gunpowder, or arms. nor may anyone print or import popish books rosaries, or else forfeit s. no merchant may dress black rabbit skins, nor export them, unless dressed by skinners and bought from them because the skinners have been thus deprived of their livelihoods to their impoverishment throughout the realm. beer may be exported when malt is at s. per quarter because exporting beer instead of barley and malt will ( ) increase the export tax to the king, ( ) increase income for coopers and brewers, and ( ) provide more jobs in transporting beer, which is more voluminous, to the great comfort of the port towns. fish which are spawning and growing in harbors may not be taken by any net or weirs because this practice has hurt fishermen and the realm. london may make a trench to bring water to the north part of the city and shall compensate the owners of lands by agreement with them of an amount or an amount determined by commissioners. actors profaning god, jesus, or the holy ghost on stage are to be penalized s. no one shall sell beer or ale to an unlicensed alehousekeeper because abuses there have become intolerable. every person convicted of drunkenness shall be penalized s. or else placed in the stocks for six hours, because the loathsome and odious sin of drunkenness has grown into common use lately and it is the root of many other sins, such as bloodshed, stabbings, murder, swearing, fornication, and adultery, and is detrimental to the arts and manual trades and diverse workmen, who become impoverished. offenders convicted a second time shall be bound with two sureties to the sum of s. no person at least years of age may be naturalized or restored in blood after being attainted unless he takes the sacrament and the oath of supremacy [of the king over the church of england], and oath of allegiance [to the king]. money given by will for the apprenticeship of poor children shall be managed by incorporated towns and unincorporated parishes. masters receiving such apprentices shall become bound with sufficient sureties. houses of correction shall be built in every county. lewd women, having bastards, chargeable to the parish, shall be committed to the house of correction to be punished and set to work for one year. persons deserting their families shall be deemed incorrigible rogues and punished as such. persons such as sorters who purloin or embezzle wool or yarn delivered to them by clothiers and the receivers thereof, knowing the same, shall recompense the party grieved or else be whipped and set in the stocks. all hospitals and abiding places for the poor, lame, maimed, and impotent persons or for houses of correction founded according to the statute of elizabeth shall be incorporated and have perpetual succession. only lands and hereditaments paying rents to the crown within the last sixty years shall be claimed by the crown; the title of all persons and corporation who have enjoyed uninterruptedly against the crown for the last sixty years are confirmed against the crown. a seminal patent-protection law was passed in . it stated that all monopolies to any person or persons, bodies politic or corporate for the sole buying, selling, making, working, or using of anything within the realm are void. this does not include london or towns. parties aggrieved by such may recover treble damages in the superior courts, with double costs. excepted are existing patents, for years or less, for new inventions and for future patents for years or less. excepted also are patents for printing or making saltpeter, gunpowder, shot or ordinance, etc.; patents concerning allum mines or newcastle coal or glass making or export of calves' skins or making smalts [deep-blue pigment or glass] or melting iron ore; grants of office; and licenses for taverns. because benefit of clergy is not allowed to women convicted of felony by reason whereof many women suffer death for small causes, any woman convicted for the felonious taking of any money, goods or chattels greater than d. and less than s. other than burglary or robbery on the highway or from the person of any man or woman without their knowledge, shall be branded and marked in the hand upon the brawne of the left thumb with a "t" and imprisonment, whipping, stocking, or sending to the house of correction for a year or less. no one may take more than % interest on loans because % has caused many, including gentry, merchant, farmer, and tradesman, to sell their land and forsake their trade to pay their debts. mothers concealing the death of a bastard baby shall suffer as for murder, unless one witness proves the child was born dead. papists running a school must forfeit s. a day for such. anyone conveying a child beyond the seas to be educated in popery may not sue in the courts, may not hold any office, and shall forfeit pounds and all lands. but the child returning may have his family lands restored to him if he receives the sacrament of the lord's supper in the established church after reaching years of age. in it was decided that it was not necessary to prove that witchcraft caused the death of a person for there to be punishment for the witchcraftery. all that was necessary now was the practice of witchcraft. the punishment was death by hanging. also, consulting or feeding an evil spirit was felony. as attorney general, coke introduced the crime of "seditious libel" in a case before the star chamber in . these written slanders or libels were viewed as incitements to disorder and private vengeance. because the tendency to cause quarrels was the essence of the crime, the truth of the libel was not a defense, but might be an aggravation of criminality. edward coke, former chief justice of both the court of common pleas and court of the queen's bench, wrote his reports on court cases of all kinds through forty years and his institutes on the law, in which he explained and systematized the common law and which was suitable for students. this included a commentary and update of littleton, published in ; old and current statutes; a description of the criminal law; and lastly an explanation of the court system, the last two published in . coke declared that "a man's house is his castle". coke waged a long battle with his wife over her extensive property and the selection of a husband for their daughter. in his institutes, he described the doctrine of coverture as "with respect to such part of the wife's personality as is not in her possession, as money owing or bequeathed to her, or accrued to her in case of intestacy, or contingent interests, these are a qualified gift by law to the husband, on condition that he reduce them into possession during the coverture, for if he happen to die, in the lifetime of his wife, without reducing such property into possession, she and not his representative will be entitled to it. his disposing of it to another is the same as reducing it into his own possession." he further states that "the interest of the husband in, and his authority over, the personal estate of the wife, is, however, considerably modified by equity, in some particular circumstances. a settlement made upon the wife in contemplation of marriage, and in consideration of her fortune, will entitle the representatives of the husband, though he die before his wife, to the whole of her goods and chattels, whether reduced into possession or not during the coverture. ... a settlement made after marriage will entitle the representative of the husband to such an estate in preference to the wife. ... a court of equity will not interfere with the husband's right to receive the income during the coverture, though the wife resist the application." - judicial procedure - defendants may not petition to remove a case to the westminster courts after a jury is selected because such has resulted in unnecessary expense to plaintiffs and delay for defendants in which they suborn perjury by obtaining witnesses to perjure themselves. in , by the writ of quo warranto, a government office or official could be made to explain by what right he performed certain acts. james i asserted an authority to determine the jurisdiction between the various courts. the court of high commission heard mostly matrimonial cases, but also moral offenses both of clergy and laity, and simony, plurality, drunkenness, and other clerical irregularities. the star chamber court still was primarily directed against force and fraud and defended the common people from over-mighty lords and over-pliable justices of the peace, for instance by deterring enclosure. it also enforced monopolies. however, there was a growing tendency for king james, who sat on it, to abuse its power with high fines. a lord accused with foul language by a huntsman of following hounds of a chase too closely threatened to use his horse whip on the huntsman's master when the huntsman threatened to complain to his master. the lord was fined , pounds. james' council used torture to obtain information from accused felons about possible conspiracies against him. the ordinary administrative court of first instance is formed by the single justices of the peace, who issue orders regarding public safety, order, public morals, health, the poor, highways, water, fields, forests, fisheries, trade, building, and fire, and particularly begging and vagrancy as well as regulations of wages, servants, apprentices, and day laborers. for more important resolutions, the special sessions of the justices of the peace of a hundred for a court of intermediate instance and appointed overseers of the poor. all justices of the peace were present at the quarter sessions, which were held at least four times a year, and were primarily a court of appeal from penal sentences, but also make the county rate, appoint county treasurers and county prison and house of correction governors, regulate prices and wages, settle fees of county officials, grant licenses for powder mills, and register dissenting chapels. it heard appeals expressly allowed by statute. the central courts also heard appeals by writ of certiorari as to whether an administrative act was in accordance with existing law, whether the court is competent, and whether the administrative law has been rightly interpreted. this writ of certiorari ceased in the s. justices of the peace who have the power to give restitution of possession to tenants of any freehold estate of their lands or tenements which have been forcibly entered and withheld, shall have like power for tenants for term of years, tenants by copy of court roll, guardians by knight service, and tenants by elegit statute merchant and staple of lands or tenements [tenant-plaintiffs holding property to receive income therefrom for satisfaction of a debt of defendants.] the justices of the peace were chosen by the crown, usually by the chancellor. the qualifications were residence in the county, suitability of moral character, religious uniformity, and the possession of lands or tenements with twenty pounds a year. they were almost exclusively country gentlemen, except in the towns. in the corporate towns, the mayor, bailiff, recorder, and senior aldermen were ex officio [by virtue of the office] justices of the peace. their main duty was to keep the peace. if a justice heard of a riot in the making, he could compel individuals at the place to give bonds of good-a-bearing and cause a proclamation to be made in the king's name for them to disperse. two justices or more had the authority to arrest the rioters and send a record of it to the assizes and to the privy council. if the riot had taken place before their arrival, they could make an inquiry by a jury and certify the results to the king and his council. the justices had men brought before them on many kinds of charges, on their own summons, or on initiative of the petty constable. they tried to draw these men into confession by questioning. after indictment, a person had the choice of a petty jury trial or paying a fine. the justices of the peace could insist upon presentment juries or surveys of offenses by local officers, but, without the institution of policemen, not many crimes were prosecuted because victims were unwilling or could not afford to initiate judicial action. their unwillingness was partly due to the severity of penalties, e.g. death for the theft of over s. and whippings and fines for misdemeanors. further, the offender was frequently a neighbor with whom one would have to live. mediation by the local constable often took place. when there an outbreak of lawlessness in an area, a commission might be set up especially for that area to enforce the law. assault cases were common in courts of assize and courts of quarter sessions. the quarter sessions were those of a number of justices of the peace held for a couple of days four times a year for the more important cases in the jurisdiction of the justices of the peace. assault was violence or threat of imminent violence. fines were graduated according to the means of the offender, who was usually bound over to keep the peace. most involved offenders and victims who were neighbors and included people of substantial standing in the village. also, a sizable minority were directed against local officers such as constables, bailiffs, or tax- collectors. three-fourths of all assize indictments and many quarter-sessions indictments were for various types of theft, including petty larceny, grand larceny, housebreaking, burglary, sheep stealing, and robbery. these offenses were mostly opportunistic rather than planned, except for london's underworld of professional thieves and the cutpurses of country markets and highway robbers on lonely roads. there were substantial peaks in theft in periods of harvest failure and industrial depression, especially by vagrants. but most of the poor never stole. the justices of the peace usually deferred to the learned justices of assize for cases of felony, murder, rape, highway robbery, and witchcraft. most homicides were the result of an impassioned argument leading to blows inflicted by nearby commonplace items picked up and used as weapons. only % of homicides were within the family. men were still declared outlaw if they failed to come to court after repeated summons. the lord keeper regularly advised the assize justices, before each circuit departure, to relieve the poor, supply the markets, maintain the roads (which were frequently impassable in winter for wagons or coaches), enforce church attendance, suppress superfluous and disorderly alehouses, and put down riots, robberies, and vagrancy, and in times of dearth, to suppress speculation in foodstuffs, prevent famine, and preserve order. in fact, the justices were most attentive to offenses which affected them as rate payers for the poor. these were offenses against cottaging laws (e.g. erection of cottages which lacked the statutory four acres of land), harboring of "inmates", disputes of settlement of paupers, bastardy, vagrancy, church nonattendance, and above all, disorderly alehouses. alehousing had been a well- established means of poor employment since the s, so it was hard to enforce licensing laws. further, alehouses were the centers of social life for the common people; both women and men met their friends there. if an attorney or solicitor delays his client's suits to work his own gain or over charges his client, the client can recover his costs and treble damages and the attorney and solicitor shall be disbarred. none may be admitted to any court of the king but such as have been brought up in the same court or is otherwise well-practiced in soliciting of causes and has been found by their dealings to be skillful and honest. an attorney who allows another to use his name shall forfeit shillings and be disbarred. offenders shall pay the charge of their own conveyance to gaol or the sum shall be levied by sale of their goods so that the king's subjects will no longer be burdened thereby. plaintiffs' costs shall be paid by the defendants where there is a judgment against the defendant in all actions in which the plaintiff is entitled to costs on judgment for him, to discourage frivolous and unjust suits. by , chancery could order injunctions to stop activities. in slade's case of , the court of the queen's bench held that assumpsit may be brought in place of the action of debt. so assumpsit supplants debt for recovering liquidated sums and is then called "indebitatus assumpsit". a statute of gave rights for adverse possession. it provided that all writs of formedon [right to land by gift of an estate tail] in descender, formedon in remainder, and formedon in reverter for any manors, lands, tenements, or hereditaments shall be sued within twenty years, for the quieting of men's estates and avoiding of suits. in default thereof they shall be excluded from such entry except children under years, women-covert, non compos mentis, imprisoned or overseas shall have an additional ten years after their disability ceases if the twenty years have expired. the limitation for bringing actions on the case (except slander), account, trespass, replevin, debt, detinue for goods and chattels and the action of trespass, quare clausum fregit [damages for unlawful entry on land], is within years; for trespass of assault, battery, wounding, imprisonment is within years; and for actions upon the case for words is within years. the trial of sir walter ralegh in began a call for a right to confront and question one's accusers. before trial, privy counselors who in theory sat as impartial justices, cross-examined ralegh in prison. with a carefully selected jury present, the trial began with reading of the indictment, which ralegh had not yet seen. he was charged with treason in plotting with catholic spain to put arabella stuart on the throne. arabella was to write to spain promising peace, toleration of catholics in england, and direction by spain in her marriage choice. he pled not guilty and took no exception to any jurors, stating that he knew them all to be honest men. next, attorney general edward coke, his enemy and rival, and he engaged in a debate about who was right, with coke outright bullying him. coke then produced a signed confession by lord cobham that implicated him in the alleged conspiracy and accepting , crowns for his part. ralegh was given permission to speak. he said that cobham had retracted his confession. he ridiculed the idea that he would betray england to spain for gold after fighting against spain, including risking his life three times, and spending , pounds for the defeat of spain. he pointed to a treatise he had written to the king on the present state of spain and reasons against peace. then there was a discussion on the validity of cobham's confession. cecil gave an oration of ralegh. coke gave a speech. ralegh asked to have his accuser brought before him face to face. he cited law that two witnesses were necessary for a conviction for treason. chief justice popham replied that only one witness was necessary under common law, which applied to his case, and that the trial was properly conducted by examination of the defendant. coke added that it would be improper to call cobham because he was a party. then coke surprised ralegh with a letter from cobham stating that ralegh had asked cobham to procure him an annual pension of pounds from spain for disclosing intelligence. ralegh acknowledged that a pension was offered, but denied that he had ever intended to accept it. he admitted that it was a fault not to inform authorities of this offer. the jury deliberated for fifteen minutes and returned with a verdict of guilty. the chief justice delivered the sentence for treason: drawing, hanging, disemboweling, beheading, and quartering. the whole trial was not so much to access guilt, but to show the general public that the person was guilty. church courts were revived after a period of disuse. they could annul an unconsummated or legally invalid marriage (e.g. consanguinity, impotence, a witnessed precontract to marry) and order judicial separations in case of adultery, cruelty, or apostasy. annuled marriages made a person's children illegitimate. an action at common law for "criminal conversation" [adultery] with the plaintiff's spouse or for assault and battery could result in an order for separation. but only a private statute of parliament could grant a divorce, which allowed remarriage. it was granted in only a few cases and only to the very wealthy. church officials spied upon people's conduct to draw them into their courts and gain more money from the profits of justice. in , edward coke, chief justice of the court of common pleas, decided that the statute giving the royal college of physicians power to imprison and fine those practicing without a license was invalid and unenforceable because it gave the college half of each fine awarded, which was a conflict of interest with its role as an adjudicator. coke said that a maxim of the common law was that no man ought to be judge in his own cause. by this decision, he asserted a court supremacy over parliament with respect to the validity of statutes. he opined that the courts should not only be independent of the crown, but should act as arbiter of the constitution to decide all disputed questions. in his words, "when an act of parliament is against common right and reason, the common law will control it and adjudge such act to be void." justices still explained and in some degree interpreted legislative acts of parliament as they had since the s, but their right to do so was coming into question and was slowly lost. female scolds were still dunked into water as punishment. only barristers, who were called to the bar after being in long residence in one of the inns of court, could practice before the king's court. attorneys and solicitors prepared cases for barristers and practiced before minor courts. the king appointed the justices, with the advice of the chancellor. james i often intimidated the justices to see things his way. the oath of a justice was: "well and truly ye shall serve the king and his people. and ye shall take no fee or livery of none but the king, nor gift or reward of none that hath a do before you except it shall be meat or drink of small value, as long as the plea hangs before you. and ye shall do equal law and execution of right to all the king's subjects rich and poor, without regard to any person. ye shall counsel our sovereign lord the king in his need. and ye shall not delay any person of common right for the letters of the king or of any person or for any other cause ... so help you god." the courts of king's bench and common pleas, and the chancery all met simultaneously in westminster hall. throngs passed up and down the middle aisles between the courts, including booksellers, stationers, scriveners, and vendors of bread and hot meat. the hall was so cold that people kept on their coats and hats. the last court case concerning villeinage was in . - - - chapter - - - - the times: - - the entourage of charles i came to be called "cavaliers". they were named by their opponents for the spanish caballero who was a catholic who prosecuted protestants. their hair had long, curled, and flowing locks. they wore a broad-rimmed decorated hat. their fancy jackets and breeches were loose. boots were wide and folded over at the top. young men wore earrings and painted their faces. a lady wore her hair in ringlets on each side of her face. her dress was fitted at the waist, with a peaked bodice. it was low at the shoulders with a scoop neckline in front. she often wore much lace, especially at the neck down to the bust line. her outer dress and under-skirt that was revealed in front were full and made of satin and stiff silk or velvet. only hose of silk was worn at court. a majority of prosperous industrial towns and fee farmers, led sometimes by lords or old landed gentry were puritans. they dressed plainly and in somber colors such as black, grey, and buff, with no ornamentation except plain white collars and cuffs of linen rather than of lace. wool replaced silk and velvet. no jewelry was worn. the puritan women also wore long white aprons. the puritan men for a time had short-cut hair. the puritan- parliamentarians were given the name "roundheads" after the crop- headed london apprentices whose rioting had marked every stage of the conflict between king and parliament. the puritan women smoothed their hair back into little knobs and covered their hair and head with a white covering. both puritan men and women wore broad-rimed hats and plain shoes. the ordinary country man wore a felt hat, broadcloth coat, woolen trousers, hand-knitted worsted stockings, and plain, strong shoes. nine-tenths of the people were protestant. religion was a favorite and serious topic of discussion, even among the illiterate. on the whole, they were more inclined to salvation by grace than to salvation by good works. popular reading included guides for good manners such as "the rich cabinet" by thomas gainsford, and "youths behavior" translated from the french by francis hawkins. it advised not to sit with one leg on the other, but with the feet even; not to spit on one's fingers; and not to sniffle in the sight of others. books for ladies such as "delights for ladies" by hugh platt told them how to adorn themselves, tables, closets, and rooms with beautiful objects, perfumes, and waters. it taught preserving and the making of candy preserved by sugar, cooking, and housewifery. gervase markham wrote advice for men in "hobsons horse-load of letters", which addressed serious negotiations, private businesses, amorous accomplishment, wanton merriment, and the defense of honor and reputation. "a helpe to discourse" primed a man to meet company with suggested questions and answers, epigrams, riddles, and jests. in henry peacham's "the compleat gentleman" ( ), the model cavalier is portrayed in terms of horsemanship, tilting, sports, choice of companions, reserved and dignified conduct, good scholarship, and responsibility. this popular book was a guide to university, where there was a seven year course of classroom lectures. it advised conversation with men of the soundest reputation for religion, life, and learning, but recreation with those of the same rank and quality. first place was to be given to religion, so that the foundation of all studies would be the service of god. following in importance were: speaking and writing in english or latin (grammar, syntax, and rhetoric), astronomy, astrology, geography (whose authorities were pliny, strabo, and the pagan writers of the first century), chorography [map-making], mathematics, including arithmetic and geometry, poetry (reading, writing, and criticizing), music, including part-music, drawing, limning [putting drawings in books], painting, art history, exercise (riding, running, leaping, tilting, throwing, wrestling, swimming, shooting, and falconry), logic and disputation if related to one's intended profession such as the law, philosophy (plato and aristotle), and some medicine and botany. richard brathwaite's "the english gentleman" portrays the somber puritan who accepts the gospel of work. he is a staid and serious businessman. "matrimonial honour" by daniel rogers opined that for success, a marriage must be godly, with the parties equally religious, worshipping together in private and in public. a hasty or worldly marriage would bring repentance. the spouses should agree, but keep to their spheres. children should not be spoiled. large households were more or less self-supporting and were managed by their ladies. work included ordering wool, hemp, and flax; making cloth and dying it; dairy work; brewing; malting; baking; preserving wines; extracting oils; distilling perfume; and putting on banquets. couches were coming into use in parlors. the flemish johann baptista van helmont demonstrated that metals dissolved in acid can be recovered through chemical means and enunciated the doctrine that each thing in nature has its own specific organization. the king and his court entourage settled for most of the year in whitehall instead of traveling around the country. the king let the public into hyde park for recreation. the city of london and westminster were still separate, but a mass of hovels was springing up in between them. the water carrier was still active and the night transport of sewage necessary. in certain areas there were houses crowded with those wanted for minor offenses, small thefts, and debt. bailiffs did not dare venture into these areas because the inhabitants hid and defended each other unless the offense was a major one. the penalty for stealing even small sums was still death. inigo jones was the first architect of consequence. he had studied in italy and designed and built the banqueting house at whitehall in london in . it had classical proportions and nice shaping and dressing in stone. he was now an arbiter of taste for the king charles and his queen and built many structures for them, including the queen's chapel at st. james palace and her bedroom in the queen's hose in greenwich. all over london and the country he and his pupils built many classical buildings, including houses, churches, stables, lodgings, out-buildings, staircases, galleries, watergates, and archways. they stood in stark contrast to the tudor buildings around them. in the , jones started town planning in london with covent garden fruit and vegetable market with terraced houses around a central piazza surrounded by open arcades with a tuscan church at one end. in , a man from the suburb of hackney introduced a line of coaches rented at s. per hour. they soon became very popular. a large part of england was rebuilt as yeomen expanded their houses and others lower in rank replaced mud and wood hovels with brick and stone cottages. a separate kitchen appeared. the ground floors are boarded over to create bedrooms. permanent stairs replace ladders. glass appears in windows. glass and crockery replace wood and pewter, chairs replace benches. knives and forks become common. about began travel between towns by covered wagons called stage coaches. they carried passengers and goods and stopped at inns for stabling and repairs. work was begun in to make canals that would make marsh waters run to the sea. barges on canals were the most efficient mode of transportation. a barge could carry tons on a canal and only tons on a river. a single horse could haul an -ton wagon on iron rails or on a soft road, but only / of a ton on his back. real wages, which had been falling, reached their low point and the gap between the poor and others widened. there were depressions from - and from to about , which called for royal proclamations for the relief and distress, especially among the poor. the book of orders, for the relief of distress in earlier reigns, was to be reissued. the assize of beer and bread maintaining quality, prices, weights, and measures, was to be duly kept. hoarding of foodstuffs was to be punished. fish days and lent were to be observed to maintain the fishers. abstaining from suppers on fridays and on the eves of feasts was ordered in all taverns and commended to private families. city corporations were to give up their usual feasts and half the charge given to the poor. foreign ships were not to be supplied with food for long voyages. the revised book of orders also covered the regulation of beggary, the binding of apprentices, and the general relief of the poor. all magistrates were to enforce the rules and raise special rates from all parishes, the richer of these to help the poorer. a new trend of spring-sown crops led to better crop balance and reduced the risks of scarcity in a bad year. but the economy was still volatile. there were riots in london in - from a complete breakdown in political consensus, the factions being the royalist city elite versus the middling and lesser merchants and craftsmen. in , the clock makers broke away from the control of the blacksmiths. the gunmakers also broke away from the blacksmiths. the tinplate workers broke away from the ironmongers. "searching" for bad cloth became more difficult as the industry became more diversified. for instance, a new machine called a gig- mill did the work of many hand finishers. in , charles issued a commission for the reformation of the cloth industry with minute directions for the manufacture of cloth. but there were many disagreements over the details of manufacture and reform was difficult to enforce. by the s, many parishes had a resident intellectual for the first time. the parish priests came from gentry, upper yeomanry, urban tradesmen and clerical families. they were educated and highly learned. they had libraries and were in touch with contemporary religious debates. they saw their role primarily as pastoral care. many wanted to improve the religious knowledge and moral conduct of their parishioners. puritan influence deepened as they forbade dancing, games, minstrels, and festivals. they punished superstitious conduct. they initiated prosecutions in church courts for sexual lapses and drunkenness. the church court had little coercive power and its punishments were restricted to penance or excommunication. many puritan sects espoused equality for women. by the s women were preachers, e.g. in the baptist and anabaptist religions and, until , prophetesses. these sects were mostly composed of the lower echelons of society. the poor people did not respond to sermons as did the well-to-do. nor were they as involved in church activity, attending church only for marriages, baptisms, and funerals. charles i not only believed in the divine right of kings and was authoritarian; he was the ultimate autocrat. he had an unalterable conviction that he was superior to other men, who were insignificant and privileged to revolve around him. he issued directives to reverse jury verdicts. parliamentarians oliver cromwell and other educated men opposed this view. the commons voted not to grant charles the usual custom-dues for life, making it instead renewable each year, conditioned on the king's behavior. charles dissolved parliament before this passed. he continued to take tonnage and poundage. he wanted money for war so he imposed many taxes, but without the consent of parliament. they included many of which had fallen into disuse. he imposed a compulsory "loan" on private individuals, which the courts held was illegal, and imprisoned those who refused. bail was denied to these men. simpler people who refused were threatened with impressment into the navy, which included being landed on shore to fight as marines and soldiers. they sought to revive the old writ of habeas corpus [produce the body] to get released, but to no avail. the old writ had been just to bring to court those persons needed for proceedings, but coke in had cited the writ with a new meaning "to have the body together with the cause of detention". charles billeted unpaid and unruly soldiers in private homes, which they plundered. it was customary to quarter them in inns and public houses at royal expense. martial law was declared and soldiers were executed. but the citizens did not want martial law either. the magna carta was now seen as a protector of basic liberties. both attorneys and laymen read "the pastyme of people" written by john rastell in , which described the history of the magna carta from to . also read was the "great abridgment" of the english law written by rastell in , and coke's volume of his institutes which dealt with the magna carta, which the crown took to prevent being published until , when parliament allowed it. broad-scale pamphleteering turned england into a school of political discussion. oxford university favored the established church and cambridge university was puritan. the estates of the members of the house of commons were three times the extent of the members' of the house of lords. bishops' estates had diminished considerably because of secularization. the members of the house of commons were elected [chosen] by the people. for these reasons, the house of commons asserted a preeminence to the house of lords. the house of commons drew up a petition of right in , which expanded upon the principles of magna carta and sought to fix definite bounds between royal power and the power of the law. it protested the loans compelled under pain of imprisonment and stated that no tax or the like should be exacted without the common consent of parliament. it quoted previous law that "...no freeman may be taken or imprisoned, or be disseised of his freeholds or liberties, or his free customs, or be outlawed or exiled; or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land" and that "...no man of what estate or condition that he be, should be put out of his land or tenements, nor taken, nor imprisoned nor disinherited, nor put to death without being brought to answer by due process of law". it continued that "... divers of your subjects have of late been imprisoned without any cause showed; and when for their deliverance they were brought before your justices by your majesty's writs of habeas corpus, there to undergo and receive as the court should order, and their keepers commanded to certify the causes of their detainer, no cause was certified, but that they were detained by your majesty's special command, signified by the lords of your privy council, and yet were returned back to several prisons, without being charged with anything to which they might make answer according to the law." it also protested the billeting of soldiers in private houses and martial law trying soldiers and sailors. if these terms were agreed to by the king, he was to be given a good sum of money. since he needed the money, he yielded. he expected tonnage and poundage for the navy for life, as was the custom. but he got it only for one year, to be renewable yearly. the king agreed to the petition, quietly putting his narrow interpretation on it, and it was put into the statute book. in parliament distinguished between treason to the king and treason to the commonwealth. the chief justice held in that acts of parliament to take away the king's royal power in the defense of his kingdom were void; the king may command his subjects, their persons, their goods, and their money and acts of parliament make no difference. but the people refused to pay these taxes. charles thought of more ways to obtain money and disregarded his agreement to the petition of right. without the consent of parliament, he extended ship money to all the kingdom instead of just the ports. it was used to outfit ships for the protection of the coasts. hampden refused to pay it on principle and the courts ruled against him in the case of king v. john hampden and he was sent to prison. when distraints were tried, the common people used violence to prevent them. the bailiffs were pelted with rocks when they came to distrain. one man used his pitchfork to take back his steer being taken by the bailiff. if distraint were successful, people would refuse to buy the distrained property of their neighbors. charles revived the right of the crown to force knighthood on the landed gentry for a fee. charles sold monopolies in such goods as soap, leather, salt, wine, coal, and linen rags although they had been abolished in the last parliament of james. this made employment uncertain for workers and prices high for the public, and put masters in danger of loss of capital. fines were levied on people for the redress of defects in their title deeds. crown forest boundaries were arbitrarily extended and landowners near crown forests were heavily fined for their encroachments on them. money was extorted from london by an illegal proclamation by which every house had to pay three years' rental to the crown to save itself from demolition. but what incensed the people more than the money issue were the changes in the established church. high churchmen, called ritualists, enforced ceremonies offensive to puritan feeling in every parish. the centrally placed communion tables were to be placed at the east end within railings and called "altars", or "mercy seats" as if for mass. they were to be ornamented with crucifixes, images, pretty trifles, books, candles and rich tapestries. bowing was to be done when approaching them. clergymen were to be called "priests" and their authority treated as divine. worship was to be done in accordance with the prescribed forms of romish breviars, rituals, and mass-books. its ritual was to have pomp and ceremony, including kneeling for communion. rings were to be used in marriages and crosses used in baptisms. churches, fonts, tables, pulpits, chalices and the like were to be consecrated, thereby putting holiness in them. churches that did not do this but used unconsecrated or "polluted" articles were closed by interdiction. regard was to be had with regard to days, postures, meats, and vestments. the clergy was to wear supplices [white linen vestments flowing to the foot with lawn sleeves] and embroidered copes [vestment over the head]. a bishop wore a four-cornered cap, cope and surplice with lawn-sleeves, tippet (long, black scarf), hood, and canonical coat. churchwardens were to take oaths to inform against any who disobeyed. the law still required that all attend sunday sermons. but parishes had some control over who was their preacher, even though a minister could be assigned to a parish by the bishops without the consent of the patron of the church or parish people. by increasing the meager pay of a parish clergyman, they could chose one with a compatible theology or employ a lecturer from outside. the ritualists scolded clergymen for "gospel preaching" and suppressed puritan preaching in public meetings. preaching or printing matter concerning the controversy of free will versus predestination was forbidden. geneva bibles, which were popular among laymen, were prohibited from being imported. many were excommunicated for sitting instead of kneeling at communion. the clergy prohibited marriage if they liked by withholding their license, and they licensed marriages without banns. the ritualists encouraged certain sports to be played after church on sunday. the puritans protested vehemently to this because they wanted to strictly observe the sabbath. the puritans saw the high churchmen as wanting to return to the doctrine and customs they thought to be papist. the ritualists were absolutists in their political views and accepted the king's intervention in church matters. the ecclesiastical court of high commission enforced the edicts of the church, excommunicating those who did not conform and expelling clergymen who, for instance, did not bow at the name of jesus or wear the surplice. it was used against the puritans and imposed high fines and imprisonment for religious eccentricity and puritan preaching. charles supported the established church in this endeavor because it agreed that he had a divine right to rule. the universities and high churchmen were beginning to adopt the doctrine of free will over predestination. parliamentarian and puritan oliver cromwell and others feared this presaged a return to justification by works and the popish faith. in parliament, he spoke out against the tyranny of the bishops, whose offices he wanted abolished, and the elaborateness of church services. to avoid persecution, many puritans emigrated to virginia and new england. they were led by magistrates, country gentlemen, prominent businessmen, attorneys, and other professionals. in , the massachusetts bay colony was chartered at the instigation of john winthrop as a puritan refuge. its leaders led a migration of puritans organized to include five each of armorers, bakers, blacksmiths, carpenters, shoemakers, merchants; three each of clothiers, chandlers, coopers, military officers, physicians, and tailors; two each of fishermen, herdsmen, and masons; on tanner, and one weaver. the fare was five pounds and an applicant was interviewed to make sure he was a puritan. he got acres, or more for a larger family. but if he paid pounds into the common stock he received acres of land, plus more for each dependent. maryland was founded in as a haven for catholics, but its charter precluded a government-established religion. it was granted to lord baltimore to hold in free socage and was named after king james ii's queen, who was overtly catholic. catholics in england could practice their religion only in their homes and could not carry arms. as hostility grew, censorship of books and plays accelerated and the number of authorized printers was reduced in by decree of the star chamber. in s effective government control of the press collapsed. then there were many pamphlets and newspapers with all variety of interpretation of the bible and all sorts of political opinion, such as on taxation, law and the liberties of the subject, religion, land and trade, and authority and property. twenty-two pamphlets were published in and , in . in the canons of the church included a requirement for parsons to exclaim divine right of kings every year. the commons soon resolved that this was contrary to the fundamental laws and liberties of the realm. the short parliament of was dissolved soon because the commons demanded redress of its grievances. the long parliament of - requested by the house of lords was agreed to by charles because he still wanted money. in election of members to the long parliament, voters wanted to know where contenders stood on certain political issues. in this parliament, the commons ceased to agree on all issues and started to rely on majority rule. the house of commons was led by john pym, a middle class landholder with extensive commercial interests. the commons treated the king's refusal to act with them as a relinquishment of his power to parliament. when it met at the long parliament, pym expressed the grievances of the king's actions against the privileges of parliament, against religion, and against the liberties of the subjects. specifically, he decried the disregard of free speech and of freedom from prosecution afterward, and the arbitrary dissolution of parliament. secondly, he alleged popery had been encouraged and the ecclesiastical jurisdiction enlarged. thirdly, he protested the patent monopolies given to favorites to the detriment of the buying public, the imposition of ship money levies beyond the need of national defense and without the consent of parliament, the revival of the feudal practice of imposing a fine for refusal to accept a knighthood with its attendant obligations, the enlargement of the king's forests and driving out from hence tenants with lucrative holdings, extra judicial declarations of justices without hearing of counsel or argument in many criminal matters, and the abuses of the prerogative courts in defending monopolies. parliament's assertion into religious matters and foreign affairs was unprecedented, those areas having been exclusively in the power of the king. the long parliament begun in removed many of the king's ministers and forbade clergy from sitting in parliament or exercising any temporal authority. it passed measures which were not agreed to by the king. it undid the lawless acts of the king and the court decision in the case of king v. hampden. ship money was declared illegal. the new concept that the present parliament should not be dissolved but by its own consent was adopted. the star chamber and court of high commission were abolished. the oath ex officio, an oath to answer all questions, was originally meant for facts at issue, but had been extended by these courts to opinions, beliefs, and religion and had led to abuses. the star chamber had been the only court which punished infractions of the kings' edicts, so now his proclamations were unenforceable. protection against self-incrimination was given by the provision that no person be forced "to confess or accuse him or herself of crime, offense, delinquency, or misdemeanor, or any neglect... or thing whereby, or by reason whereof, he or she shall or may be liable or exposed to any censure, pain, penalty, or punishment whatsoever, as had been the practice in the star chamber and the court of high commission. these measures were also adopted: no one may be compelled to take knighthood nor undergo any fine for not so doing. the forest boundaries are returned to their former place. all subjects may now import gunpowder; they may also make and sell gunpowder and import saltpeter. the root and branch petition of complained about pressure on ministers by bishops on threat of dismissal not to preach about predestination, free grace, perseverance, original sin remaining after baptism, the sabbath, doctrine against universal grace, election for faith foreseen, free-will against anti-christ, non- residents, or human inventions in god's worship. it also complained about the great increase of idle, lewd, and dissolute, ignorant and erroneous men in the ministry who wanted only to wear a canonical coat, a surplice, and a hood, bow at the name of jesus, and be zealous of superstitious ceremonies. it also complained about the swarming of lascivious, idle, and unprofitable books, pamphlets, play-books, and ballads, such as ovid's "fits of love", "the parliament of women", barn's "poems", and parker's "ballads". further it opposed the restraint of reprinting books formerly licensed without relicensing. it protested the growth of popery and increase of priests and jesuits, the strict observance of saints' days whereby large fines were imposed on people working on them, the increase of whoredoms and adulteries because of the bishops' corrupt administration of justice and taking of bribes, and the practice of excommunicating for trivial matters such as working on a holy day or not paying a fee. it further protested the fining and imprisoning of many people; breaking up men's houses and studies; taking away men's books, letters, and writings; seizing upon their estates; removing them from their callings; and separating them from their wives, to the utter infringement of the laws and of people's liberties. it complained that these practices caused many clothiers, merchants, and others to flee to holland, thus undermining the wool industry. it finally complained of the multitude of monopolies and patents, large increase of customs, and ship-money. many londoners signed this petition. the house of commons decided to forbid bowing at the name of jesus. when the house of lords disagreed with this, the house of commons claimed that it represented all the people and didn't need the concurrence of the house of lords. the house of commons ordered that all communion tables be removed from the east end of churches, that the railings be taken away, and all candles and basins be removed from it. further, all crucifixes, images of the virgin mary, and pictures of any of the trinity were to be demolished, which was done to even those in markets and streets. further, all bowing at the name of jesus or toward the east end of the church or toward the communion table was forbidden. all dancing or other sports on sunday was forbidden. enforcement was to be done by justices of the peace and mayors. but these orders never became statutes. enforcement of the law for not coming to church was not now regularly enforced, so catholics had a respite. rebellion of irish catholics against england and english protestants broke out in ireland in . parliament didn't trust the king with an army that he could use against themselves so it passed the following two measures expanding the navy and calling out the militia and naming certain persons to be lieutenants of each county. the admiral shall impress as many seamen as necessary for the defense of the realm. this includes mariners, sailors, watermen, ship carpenters, but no one over the age of or masters or masters' mates. if one hides, he shall be imprisoned for three months without bail. justices of the peace shall impress as many soldiers as the king may order for war in ireland. this is despite the right of a citizen to be free from being compelled to go out of his county to be a soldier because the danger from ireland is imminent. excluded are clergymen, scholars, students, those rated at a subsidy of land of three pounds or goods of five pounds, esquires or above, the sons of such or their widows, those under eighteen or over sixty years of age, mariners, seamen, and fishermen. the penalty for disobeying is imprisonment, without bail or misprise, and a fine of ten pounds. if an offender can't pay the fine, he shall be imprisoned a year more, without bail or misprise. the right to call out the county militia had been a prerogative of the crown, so the king issued a proclamation ordering the soldiers to ignore this order and obey him. so parliament declared this proclamation void. the king accused five leaders of parliament, including pym, of trying to subvert the government of the kingdom, to deprive the king of his regal power, to alienate the affections of the people toward their king, forcing the parliament to their ends by foul aspersions, and inviting the scots to invade england. in , the king entered parliament with soldiers to arrest these five. they had flown, but parliament was shocked that the king had threatened the liberties of parliament with military force. the citizens of london, in their fear of popery, rose in arms against the king, who left the city. both sides raised big armies. the goal of the parliamentarians was to capture the king alive and force him to concessions. when the parliamentarians took oxford in , they purged its faculty of royalists. - the law - >from to these statutes were passed: no one shall engage in sports or any pastimes outside his own parish or bearbaiting, bullbaiting, interludes, plays or other unlawful pastimes inside his parish on sundays because such has led to quarrels and bloodshed and nonattendance at church. the fine is s. d. or if the offender does not have the money or goods to sell to pay, he shall be set in the public stocks for three hours. no carrier with any horse or wagon or cart or drover with cattle may travel on sunday or else forfeit s. no butcher may kill or sell any victual on sunday or else forfeit s. d. every innkeeper, alehousekeeper, and other victualer permitting a patron who is not an inhabitant of the area to become drunk shall forfeit s. or be place in the stocks for six hours. offenders convicted a second time shall be bound by two sureties to the sum of s. as of , a parent sending a child out of the country to go to a catholic school was to forfeit pounds, one half to the informer and one half to the king. the petition of right herebefore described was passed as a statute in . - judicial procedure - the star chamber decided cases as diverse as a case of subordination of witnesses, cases of counterfeiters of farthing tokens, and cases of apothecaries compounding ill medicines. it tried to keep down the prices of foodstuffs for the benefit of the poor; it repressed extortion and false accusations, and disbarred an attorney for sharp practices; it punished defamation, fraud, riots, forgery of wills; it forbade duels. a special virtue of its position was that it could handle without fear matters in which men of social or local influence might intimidate or overawe juries or even country justices. it punished a lord who caused records to be forged, unlawfully entered lands, and seized tithes. it disciplined a nobleman for drawing a sword on a lord hunting hare. in one of its cases, sir edward bullock, a knight wanting to enclose a common of a thousand acres threatened his neighbor blackhall when he would not sell his lands and rights. the knight hired a man to break down the hedges and open a gate that had been staked up, so that his neighbor's cattle would stray. he sued his neighbor three times for trespass, lost his cases, and threatened revenge on all the witnesses who testified against him. he had the house of one pulled down. the pregnant wife and a naked child were turned out and had to lie in the streets because no one dared to take them in, even when a justice so directed. the witness, his wife, and family took refuge in an unheated outbuilding in the winter. he and his wife and one child died there. the knight had another witness cudgeled so that she was black and blue from the waist up, and could not put on her clothes for a month. the knight threatened to set fire to the house of another witness, and sent his men to pull him out of doors and keep him prisoner for some hours. the star chamber imprisoned the knight and his men. the knight was fined , pounds and the men pounds each. the knight also had to pay one witness pounds in reparation to the surviving children of the family whose house had been pulled down. but the power of the star chamber was abused by king charles i. for instance, one lord was accused by another of calling him a base lord. the evidence was paltry. but he was fined , pounds, one-half going to the king. a lord who was accused of converting agricultural land to pasture was fined , pounds. a person who exported fuller's earth, contrary to the king's proclamation, was pilloried and fined , pounds. a man who defaced a stained-glass window in a church was fined pounds and ordered to pay for a plain glass replacement. a man who became sheriff of a county and had taken the oath which bound him to remain in the county was elected to parliament and stood in opposition to the king on many matters. he was imprisoned for many years until he made a humble submission and had to pay a heavy fine. a london importer who was alleged to have said "that the merchants are in no part of the world so screwed and wrung as in england; that in turkey they have more encouragement" was fined , pounds for seditious and slanderous words against his majesty's happy government. a scottish minister circulated a book appealing to parliament to turn out the bishops and to resist its own dissolution by the king. in it he called the bishops men of blood, anti-christian, satanical, ravens, and magpies, preying on the state. he was against kneeling at the sacrament and denounced the queen for her catholic religion. he blamed the state for the death of citizens of a certain town by famine. for as he did "scandalize his majesties sacred person, his religious, wise, and just government, the person of his royal consort the queen, the persons of the lords and peers of this realm, especially the reverend bishops", he was fined , pounds, was to be unfrocked (which was done by the court of high commission), and was whipped, pilloried, one ear nailed to the pillory and cut off, his cheek branded, and his nose slit. then he was imprisoned for life, but only served ten years, being released by a statute of the long parliament. a puritan writer pyrnne wrote a book that included a condemnation of masks and plays, and all who took part, and all who looked on as sinful, pernicious, and unlawful. it opined that nero had attended plays and deserved to be murdered. since charles had attended plays and the queen had taken part in a mask, it was inferred that pyrnne meant them harm. his indictment alleged that "he hath presumed to cast aspersions upon the king, the queen, and the commonwealth, and endeavored to infuse an opinion onto the people that it is lawful to lay violent hands upon princes that are either actors, favorers, or spectators of stage plays". the justices saw in the book an attempt to undermine authority. the chief justice called the book a most wicked, infamous, scandalous, and seditious libel. pyrnne was sentenced to be degraded by oxford and disbarred by lincoln's inn, to be fined , pounds, to be pilloried and to have his ears cut off, and then to be imprisoned for life. three men who wrote attacks on the bishops and ecclesiastical courts, such as alleging that the bishops suppression of fasts and preaching had brought the pestilence upon the people and that the bishops had dishonored god and exercised papal jurisdiction in their own names, were each sentenced to , fine, the pillory, where their ears were cut off, and to life imprisonment. one, who had been convicted for libel before, was branded on both cheeks: "s.l." for seditious libeller. others printed similar material. in vain the star chamber limited the number of london printers to twenty, and made licensing stricter. these prisoners were set free by the long parliament. charles i intimidated justices to obey him in decision-making even more than james i. charles i so abused the power of the star chamber court that it was abolished by the long parliament and with it, the involvement of the king's council in civil and criminal cases. the regular church courts punished people for heresy, non- attendance at church, sexual immorality, working on the sabbath or a holy day, non-payment of tithes, and lending money at interest. the special ecclesiastical court, the court of high commission, was composed of clerics appointed by the king and decided cases of marriage annulment, alimony, adultery, married couples living separately, cruelty of husbands to wives, and habitual drunkenness. but it also took on cases of schismatics and extended its power over them to include staid and solid puritans, who uniformly believed that salvation was the only worthy earthly aim. acting on information attained through secret channels or from visitations, it would summon the accused, who was required to give, under oath, "full, true, and perfect" answers to broad and undetailed charges made by secret informants. refusal to take the oath resulted in commitment for contempt of court. if he denied the charges and fled, the court could hold the hearing without him. many fled out of the country or went into hiding in it. if the accused went to the hearing, he could not take an attorney with him. most of the issues involved clergy refusing to use the litany, to make the sign of the cross in baptism, to wear the surplice, or to publish the book of sports, and insistence on extempore prayer and preaching. other issues were clergy who from the pulpit inveighed against ship-money and unjust taxes, and spoke rudely against the bishops and tyrannical princes. one case is that of samuel ward, the town preacher of a large town, heard in . he neglected bowing or kneeling on coming to his seat in church and preached against the book of sports. he did not read the set prayers from the official book, but said prayers he had himself conceived. to this he replied that a parrot could be taught to repeat forms and an ape to imitate gestures. but his most serious offenses had to do with his utterances from the pulpit derogatory to the tenets and discipline of the church. he was accused of saying that he believed that congregations still had the right of election of all officers, including ministers. also, he allegedly said that in preaching on the christmas holidays he told his people "that in the following days they might do their ordinary business, intending to cross that vulgar superstitious belief, that whoever works on any of those twelve days shall be lousy". he allegedly warned his people to beware of a relapse into popery. ward was convicted of depraving the liturgy, tending toward schism, frightening the people, and encouraging the overthrow of all manner of government. he was removed from his position, deprived of his ministerial function, suspended and silenced during the king's pleasure. he was ordered to make submission and recantation both in court and in his church and to give bond for pounds. when he did not do this, he was sent to prison and lay there nearly four years, and died a few months later. in another case, a mrs. traske was imprisoned for at least eleven years for keeping saturday as her sabbath. many people were excommunicated and books censored for essentially political reasons. in , the king proclaimed that the common law courts could not intervene in ecclesiastical courts. the court of high commission was abolished by the long parliament. justices of the peace had general and quarter sessions, the latter of which were held four times a year with all justices of the peace attending. it was primarily a court of appeal from penal sentences. but it was also an administrative body to determine taxes and make appointments of officials and grant licenses for businesses. in , in distributing a deceased person's estate, the chancery court upheld a trust designed to hold the property for an heiress so that it did not become her husband's property. at the request of parliament, the king had all justices serve during their good behavior instead of serving at the king's will, which had been the practice for ages. this increased the independence of the judiciary. the rack was used for the last time in before the long parliament met. it was used to torture a rioter before hanging. men were still pressed to death for failure to plead, pickpockets still executed for the first offense, and husband murderers still burned. - - - chapter - - - - the times: - - for four years, there was civil war between the king, backed generally by the upper class, the established church, and most of the gentry, against the parliamentarians, backed generally by middle class yeomen, town dwellers, some of the gentry, most of the great corporations, the city of london, the ports, the seamen, and the navy. oxford university was royalist, and cambridge university was puritan in sympathy. archery was not used, having become just sport by . flint-lock pistols, which relied on flint striking steel to ignite the powder, as well as swords were used by horsemen in the civil war. footmen were musketeers using a match lock with a cord boiled in vinegar as the match and dressed in leather doublets and an iron-pot headpiece, or pikemen with long wooden poles with spearheads of iron or steel and short swords, and dressed in armor. this was the last time armor was used. the parliamentarians wore orange scarves to distinguish themselves from their enemy. cromwell, who had a natural aptitude for military matters, selected for his troops, puritan zealots with a puritan code of behavior which included no drinking or swearing. he selected horsemen based on ability rather than social class. he was regarded as one of the leaders of the independents, who wanted total abolition of the monarchy and of the aristocracy. when made a leader of the new model army, cromwell dressed all his foot men in red with only the facings being regimental colors. the new model army had been assembled because there had been disagreement about policy among the members of parliament who held commissions. almost all members gave up their commissions. for their continued support, many wives and also prostitutes put on men's clothing and followed the troops. they nursed the wounded. those many wives who stayed at home pleaded and answered in court; petitioned to the house of commons, e.g. for release of debtors from prison, high taxes, lack of work, and arbitrary government; and made other public appearances. puritan and royalist newspapers printed the news at least once weekly. poet john milton pled for civil and religious freedom, freedom of social life, and freedom of the press. he stated: "give me the liberty to know, to utter, and to argue freely, according to conscience, above all liberties." the mayor and citizens of london were given authority in to fortify all highways leading to the city and levy a tax on inhabitants for this purpose. when london was deprived of coal during the war, trees and flowers again flourished there. officers and seamen in navy ships were authorized in to take one-third of all prize goods captured, the other two-thirds going to the state. parliament approved certain persons to set forth ships at their own expense to defend the realm in . they were allowed to keep any ships, goods, ammunition, or moneys they seized. saltpeter men were appointed by parliament in and later times to search and dig for saltpeter in pigeon houses, stables, and outhouses, but not dwelling, shops, or milkhouses. they had to repair any damage done to the contentment of the owners. complaints were made to parliament that there were scandalous and ill-affected fomenters of the civil war and disobeyers of the ordinaries of parliament and deserters of their ordinary places of residence. these complaints were made by members of the university of cambridge, students, clergy in surrounding counties, and schoolmasters. so a committee was established in to investigate and sequester their lands and goods, excepting one- fifth of the estate for the wife and children. when charles was captured in , the episcopacy of the bishops was abolished. when parliament was about to reinstate charles as king with weakened powers and establish a presbyterian state church, the soldiers, who were religious independents and who still had not been fully paid (the infantry pay was weeks in arrears and the cavalry weeks) despite plans to disband them, spontaneously took the king by force. they demanded liberty of conscience to practice their own religion and their pay. cromwell sided with the army and then became leader of the house of commons. charles dissembled in his negotiations with the army generals. he felt freed from his promises as soon as the pressure was removed. the army could not forgive charles' duplicity and deceitfulness and insisted upon his death as the only way to bring peace. cromwell gave up hope on negotiations with charles when he intercepted a letter by charles to his queen decreeing the final doom of the army adherents in favor of the scottish presbyterians. during protracted negotiations over months between the army and parliament over a new constitution, a renewed support for the king, which was inspired by him, necessitated a second civil war to put down this revolt and subdue its scot supporters. eventually the army took control of parliament by force, only allowing the few members who agreed with them on the trial of the king into parliamentary meetings. so charles was tried in , found guilty of "an unlimited and tyrannical power to rule according to his will, and to overthrow the rights and liberties of the people ... which by the fundamental constitutions of this kingdom were reserved on the peoples' behalf in the right and power of frequent and successive parliaments or national meetings in council", and maintaining a war against his subjects, which amounted to treason. to prevent his adherents from trying to reinstate him, he was condemned to death and beheaded in january . parishes had to give maintenance to maimed soldiers and provision for the livelihood to the wives and children of killed soldiers. masters of apprentices who became soldiers had to take them back as apprentices without loss for their absence in defense of the commonwealth. masters who received considerable loss by the absence of their apprentices received reasonable satisfaction from the public stock. to pay for the civil war, an assessment tax on the yearly value of rents, annuities, and offices was often levied. the main burden of this tax fell on the gentry rather than the merchants and smaller men of property, as previous taxes had. an excise tax, a tax on consumption, was begun on ale and beer and then extended to meat, salt, starch, soap, and paper. it was gradually extended to many goods. the excise taxes were paid, as was the customs tax, by manufacturers on goods made in england and by foreign manufacturers on goods at the ports. >from - , royalists were purged from oxford and a group of baconians moved into the university behind parliamentary armies. at the two universities, books were no longer chained to the bookcases. the universities were freed from taxation. after the civil wars, cromwell led the country. he was a military, political, and religious leader. he had become a puritan zealot after a youth of gambling, drinking, debauchery, and rioting. he believed that military success was a reflection of divine favor and he regarded himself as one the few elect preordained for salvation. those in power in the new commonwealth tended to explain their regime in terms of popular consent, and the takeover from charles i as due to his breaking of a contract with the people. most people dressed in puritan fashion. a puritan's favorite readings were the old testament, epistles of st. paul, and writings of john calvin. wealth and prosperity steadily increased in spite of the civil wars. during cromwell's tenure, there was a marked revival of economic prosperity. by the mid- s, landlords had been able to shorten their leases so that a lease of twenty-one years was the predominant form of landholding. patent protection was given in for seven years to the inventors of a device for salvaging ships' goods and cannons from the seas. with it they could convert to their own use one half of the items retrieved, the other half going to the navy and parliament. patent protection was given in to george manby on his new invention for boiling liquors and making salt with less coal and wood and iron, lead, and copper for fourteen years. patent protection was given in for fourteen years to jeromy buck for melting iron, lead, tin, copper, brass, and other metals with coal without burning charcoal. dutchman stevinus showed that the pressure at the bottom of a column of liquid is proportional to the height of the column, and not to its bulk, about . he also studied oblique forces, and the balancing of such that could bring about "stable equilibrium". evangelista torricelli, an italian student of galileo, discovered in that any fluid will be supported at a definite height, according to its relative weight, as compared with air. he realized that a mercury column, inches in height, in a long glass tube inverted in a cup of mercury, was being supported by air pressure exerted on the mercury in the cup. when he observed that this height changed with the weather, he had invented the mercury barometer. in his work, he created and used vacuums. blaise pascal, a french mathematician, physicist, and religious philosopher, was a child prodigy. at the age of , he proved euclid's nd theorem that the sum of the angles of a triangle is equal to two right angles. before age , he wrote a book on conic sections. he is famous for his theorem that a hexagon inscribed in a conic section has the property that the three meeting points of the opposed sides are always in a straight line. he constructed a calculator, which could handle nine-digit numbers, in to assist his father, also a gifted mathematician, in tax computations he did as a local government official. he had torricelli's mercury barometer carried up a mountain and found that the height of the column dropped as altitude increased, and thus that air pressure decreased with altitude. this showed that the attribution of these effects to nature's abhorrence of a vacuum were due instead solely to the weight and pressure of air. he determined that the height to which the mercury rose was the same regardless of the shape of the vessel containing it. around , he did experiments with double vacuums and on the results formulated his principle that pressure applied to a confined liquid is transmitted undiminished through the liquid in all directions regardless of the area to which the pressure is applied. around , he laid the foundations for the theory of probabilities after being asked by a gambling friend why, in playing dice, some frequencies came up more often than others. he developed a means of calculating probabilities with his "pascal's triangle" of coefficients of (a+b) raised to the nth power. each row represents the coefficients of a power one greater than the power of the previous row. each number is the sum of the nearest two numbers in the row above it. jean ray from france concluded from his experiments that every piece of material has a given weight, including air and fire. otto von guericke from germany discovered that, in a vacuum, sound does not travel, fire is extinguished, and animals stop breathing. at a time when mathematics was only a business of traders, merchants, seamen, carpenters, and surveyors, mathematician john wallis, the son of a minister, studied sections of cones [circles, ellipses, parabola, and hyperbolas] as curves of the second algebraic degree, i.e. with an exponent of two, i.e. y = (a (x squared)) + b. he also worked with negative and fractional exponents. around he invented the infinite arithmetic and introduced the symbol for infinity. he determined that the area under any curve defined by the equation y = (x to the nth power), was x to the (n+ )th power divided by n+ . he introduced the concept of the limit of a string of numbers. he wrote a treatise on algebra which was historical as well as practical. he also decoded enemy cyphers for the sovereign. some english gentlemen interested in the new scientific methods originated by galileo had meetings beginning about to discuss scientific topics. one group met at gresham college and was headed by wallis. another group was led by robert boyle, a philosopher, physicist, and chemist. they wrote in english instead of latin. these meetings later gave rise to the royal society for science. the merchant adventurers were incorporated again in to have a monopoly. it was required to admit into membership for pounds anyone free of london and bred as a merchant, and for pounds any non-inhabitant of london. the penalty for trading for one who was not free of the corporation was forfeiture of his goods. in , the house of commons abolished the monarchy and in the house of lords. also in it declared that england "should thenceforth be governed as a commonwealth and free state by the supreme authority of this nation, the representatives of the people in parliament." it made a new constitution. john milton defended the commonwealth as superior to the monarchy because it could not deteriorate into tyranny in his books: "first defense of the people of england" in , and "second defense" in . he lauded cromwell as great in war and great in peace, and exemplifying the principle that "nature appoints that wise men should govern fools". thomas hobbes, the son of a clergyman, and tutor to students, wrote "leviathan" in on his theory of sovereignty. hobbes thought that states are formed as the only alternative to anarchy, barbarism, and war, so that supremacy and unity of a sovereign power is essential to a civilized life and the protection of the citizenry. a sovereign may be a man or body of men as long as his or its authority is generally recognized. there must be a social contract among the citizenry to obey a certain sovereign. to avoid religious conflict, there must be a complete subordination of the church to the state and the religion of a state must be dependent upon its secular sovereign. hobbes thought that knowledge of the world came through experience and not reason alone. only matter exists, and everything that happens can be predicted in accordance with exact, scientific laws. he regarded human societies as purely mechanical systems set in motion by human desires. he saw self interest as the mainspring of moral law. conflicting self interests transformed into a lawful system of agreements. hobbes opined that all power really originated in the people and that the end of all power was for the people's good. on the other hand, james harrington, who wrote "the commonwealth of oceana" in , opined that a stable society depended on a direct relationship between the distribution of property and political power; no one with property worth more than , pounds should be allowed to acquire more and property should be divided among children. a senate of mature property owners were to make and debate the laws while an assembly elected by universal suffrage was to vote on them because "a popular assembly without a senate cannot be wise and a senate without a popular assembly will not be honest". a third of the senate would turn over every year. john milton defended the execution of the king in "the tenure of kings and magistrates" in which he maintained that the people may "as often as they shall judge it for the best either to choose him or reject him or depose him, though no tyrant, merely by the liberty and right of freeborn men to be governed as seems to the best". he also wrote in favor of liberty of the press. ordinary speech found its way into prose writing. lands of more than royalists, including church lands, were confiscated and sold or leased by county committees. many royalists put their lands into trusts or turned them over to relatives or sold them outright to prevent confiscation. it was an upheaval comparable to the dissolution of the monasteries. also, specified papists who had taken up arms against the realm lost their lands, goods, money, rents, and two-thirds of their personal estates. but allowance was made for the maintenance of their wives and children. the book of common prayer was abolished because of its burdensome ceremonies. it was replaced by a directory for public worship. according to this, the sunday service was to include reading of the scriptures, prayer, and a sermon, ordinarily on some text of scripture which would be explained with reasons therefore and applied to peoples' lives so they could see it they had sinned or not. the ending of episcopal patronage gave some parishes the right to elect their own ministers. all festivals and holy days were abolished, e.g. christmas, easter, whitsuntide. instead, scholars, apprentices, and servants were to have recreation and stores were to be closed every second tuesday of the month. the usual merry-making, music, dancing, and sports after the sunday service were discontinued. a day for fasting: the last wednesday of every month, was declared by statute. this day was to be "kept with the more solemn humiliation, because it may call to remembrance our sins, and the sins of our forefathers, who have turned this feast, pretending the memory of christ into an extreme forgetfulness of him, by giving liberty to carnal and sensual delights, being contrary to the life which christ himself led here upon earth, ...". this statute lasted for only five years from because observance of it was not consistent throughout the country. educational opportunities such as in grammar schools were more widespread and stronger than ever before or since until the s. about % of men in london were literate, and % of men nationwide. about half the women in london were literate by . in , the marshalls of the admiralty and five major ports were ordered to search all ships for stolen children since it had been a problem in london. the elderships of the church were given power in to suspend from the sacrament of the lord's supper all ignorant and scandalous persons. ignorance was lack of knowledge that there is a god and this is the one true god we worship, that this god is one, yet three persons" father, son, and holy ghost, that god created man in his own image, that all have sinned and therefore shall die, that there is one mediator between god and man: jesus christ, who died on the cross to save men from their sins, that he rose from the dead, ascended into heaven, sits at the right hand of god, and intercedes for us, that christ and his benefits are applied only by faith, that the souls of the faithful live with christ in blessedness, that non-believers and non-repenters shall perish eternally, that the sacraments are baptism and communion, and that there is a judgment day on which the righteous will be given life eternal and the wicked shall receive everlasting punishment. scandalous persons are those who blasphemously speak or write anything of god, his holy work or the sacraments; an incestuous person; an adulterer; a fornicator; a drunkard; a profane swearer or cursor; a murderer; a worshipper of images, crosses, crucifixes, relics, saints, or angels; makers of images of the trinity; one who professes not to be in charity with his neighbor; any challenging another to fight or accepting such challenge; on the lord's day, dancing, dicing, cards, masking, wake, shooting, bowling, football, wrestling, plays, interludes, fencing, bullbaiting, bearbaiting, hawking, hunting, coursing, fishing, fowling, selling wares, travel without reasonable cause; a brothel-house keeper; one who solicits the chastity of another; one who marries a papist or consents to the marriage of his child to a papist; own who goes for advice to a witch, wizard, or fortune-teller; one who assaults his parents, or any magistrate, minister, or elder in the execution of his office; and one attainted of barratry, forgery, extortion, or bribery. if such a person persists, he shall be excommunicated. cromwell did not disapprove of activities prohibited because of the recreation they provided, but thought that they had become too central to people's lives. he did not close the taverns or ale houses. in it was required that public preachers be approved by a commission nominated by the lord protector and parliament because there had been too many "weak, scandalous, popish, and ill- affected" ones. in named persons were ejected as scandalous, ignorant and insufficient ministers and schoolmasters. in a corporation was established to teach the gospel of jesus christ in new england to indians. because the poorer parishes of london were having problems supporting their poor, a corporation for the poor of london was established in with authority to erect workhouses and houses of correction. imprisoned debtors who had less than five pounds and less that five pounds worth of trade tools and clothing and bedding for his family were ordered released in . wardship was abolished. military tenures were abolished. feudal tenures were converted into freehold in . in those living in crown forest land were given free socage in that land. the game laws were not enforced, so people could eat deer. enclosures were increasing and parliament was disinclined to protect copyholders against enclosures, favoring those with rights of ownership. enclosure was no longer deterred especially after abolition of the star chamber. the legal device of "strict settlement" evolved to prevent heirs from breaking up estates enabled families to concentrate land and capital into large units. the oldest son inherited the land and the younger sons now received money. clover seed was sold in london by . it revolutionized the cultivation of barren land. england began to export instead of import grain. but vagrancy increased from people dispossessed of land. and the village artisan, when deprived of his field and of this rights of common, could not continue to work at home, but had to accept the wages offered to him in an employer's workshop. employers and entrepreneurs were now free from control by the crown. there were no more attempts to supervise quality of manufactures or to fix prices or regulate wages. there was greater freedom established in relations between employers and workers. the government no longer tried to compel employers to keep employees in times of economic slump. the requirement of seven year apprenticeships and being the son of a freeholder to be an apprentice were not enforced. the economy was still volatile due ostensibly to variable harvests, amount of gold and money in circulation, and balances of trade, and to periods of plague. wages rose steadily. the rise in prices ended about , and prices remained stable until about . there was more mobility of people. taxation became regular and it was controlled by representatives of the taxpayers. population growth gradually stabilized. capitalism was coming into being. for instance, the clothier was now a manufacturer. he had become a contractor, taking wool to the specialist spinner, the yarn to the specialist weaver, the rough cloth to be washed and stretched, and finally to the dyer. this cloth was sold at retail by the drapers. tin on the surface was exhausted, so capital was used to drive deep shafts in tin mines. no longer did a single man with a single ship sail around until he found a market, but company trading overseas had their ships, wharves, and depots furnished by men's savings put into a common stock. the first major capitalist industries were coal mining, iron mining, and foreign trade because they all needed large investments, and thus joint-stock company organization. cromwell reconstituted the east india company on a wider and more permanent basis. he gave it a new charter in which included authority to make stock permanent, thus ensuring a continuity of capital. this solved the problem of the competition of overlapping voyages which still occurred despite their terms of several years. the company became one of the first permanent joint-stock companies. now the stock was never wound up. the company had permanent capital which could grow. the absence of competition among voyages made the company stronger in the face of a common enemy, such as a rival trading country or indian groups. the charter also authorized the company to fortify and colonize any of its establishments and to transport to them settlers, stores, and ammunition. later in , the company threw open the freedom of the company to the public for a nominal sum of five pounds. now the merchant adventurers and private traders could participate. it provided that dividends were to be paid only in cash and not in kind (goods). it also provided for appraisals of the company's property to be made every three years, so any shareholders could redeem their shares proportionately. his shares would then be resold. people began to buy and sell their shares among each other. the company made the minimum subscription pounds. each person holding pounds worth of shares had one vote. holding , pounds worth of shares qualified one for election to the committee of twenty-four. the seats of the members of this committee and of the governor and deputy governor could no longer be permanent, but had limited and staggered terms. the continuity of capital took the place of the permanence of the governing body in providing stability. there was a regular scale of salaries for employees, and rules of conduct such as the one disallowing any clerk of the india house from going to play houses, dancing schools, or taverns. the company established almshouses for its widows and orphans. in the muscovy company, renewed its charter for trade in russia and established a new general stock. if a man bought a share, he bought freedom of the company. an annual dividend was declared from the annual profits. commercial men regularly kept accounts with bankers. merchants used division to apportion profits or losses to the parties whose capital was involved. simple and compound interest were used. the concept of contract became a familiar one. regular private bankers of london emerged from the goldsmiths from to . they issued bank notes and paid checks. cromwell increased trade by seizing territories, establishing colonies, and warring with competitors for master of the seas and trade. in it was provided that no one who paid his assessment for soldiers' pay would have to quarter any of them. authority was given in to impress seamen: mariners, sailors, watermen, surgeons, gunners, ship carpenters, caukers, coopers, whoymen, and carmen for carriage of victuals. english ships were embellished with decoration. their sail area was increased by triangular fore and aft sails. the navy increased from to vessels. after serving in foreign wars, ex-soldiers were allowed in to practice any trade without serving a seven year apprenticeship. colonies new hampshire and maine were established in , connecticut in , and rhode island in , as offshoots from other colonies. about , steel was hardened by repeated quenchings and temperings when the steel had reached certain colors. brass was made from copper and zinc alloyed together. there were power-driven rolls for the coinage from . strips of silver were passed between engraved rolls. then coins were punched out and their edges serrated. in the s, huygens made the first pendulum that worked practically in a mechanical clock. this new clock increased the accuracy of time-keeping tenfold. he also introduced the concept of mathematical expectation into probability theory. there was a thermometer which used liquid such as water or alcohol in a glass tube instead of air. dutchman stevinus showed that the pressure at the bottom of a column of liquid is proportional to the height of the column, and not to its bulk, about . he also studied oblique forces, and the balancing of such that could bring about "stable equilibrium". blaise pascal, a french mathematician, physicist, and religious philosopher, constructed a calculator in to assist his father, who was involved in local administration, in tax computations. around , he proved his law that pressure applied to a confined liquid is transmitted undiminished through the liquid in all directions regardless of the area to which the pressure is applied. around , he laid the foundations for the theory of probabilities, including the creation of "pascal's triangle" of coefficients of (a=b) raised to the nth power. he and lawyer and mathematician pierre fermat invented the theory of probabilities. fermat also proved that the law for refraction (bending) of light results from light's following the path that takes the shortest time. he founded number theory, the study of properties of whole numbers, in . fermat formulated the notion of a line tangent to a curve and started the development of differential calculus, in which a rate of change is expressed as a function of time in equation form and also as a tangent to the curve associated with that equation. this work helped lay the foundation for analysis. he and german gottfried leibniz formulated the principle that an equation with two unknown quantities can represent a curve. leibnitz believed that man's mind can arrive at truths about entities by pure thought. since the puritans forbade music in churches, but enjoyed it in domestic circumstances, much secular music was composed, published, and played. there were many musical clubs. the violin became very popular. solo songs were much sung. the first english opera: "the siege of rhodes" was written and performed with women on stage. writers of the time included john milton, political philosopher james harrington, poet edmund waller, thomas fuller, poet abraham cowley, and biographer issak walton. john aubrey wrote anecdotes about famous men. jeremy taylor, chaplain to charles i, wrote on theology. people still read french romances translated into english. dancing was still popular. coffee houses came into prominence as places of social discourse. the first coffee house was established in london in ; ten years later, there were coffee houses in the city. there were elegant pleasure gardens, with a fee for access. they were used for promenades and picnics. ladies and their gallants rendezvoused there. cromwell introduced the habit of port drinking to england. in , one general post offices was established with one postmaster general for all of england. no other person could have the horsing of the through-posts. it cost d. for a letter to or from miles of london and d. for one outside miles of london. there was continual problem with catholics. mayors, justices and capital burgesses of towns where papists or others had caused rebellion and insurrection and plundered, robbed, pillaged, murdered and raped, were given the power in to call, assemble, train, and arm soldiers for defense. the committee of the militia of london was given authority in to search all houses and places for papists and to search for and seize any arms, ammunition, and war materials in custody of such persons. in , all papists and soldiers of fortune who had borne arms against parliament were ordered to depart from within twenty miles of london and westminster or be imprisoned as traitors. in convicted papists and people marrying convicted papists were required to take an oath renouncing the pope and catholic church or lose two-thirds of their lands and estate, retaining their house on the remaining one-third. if one went to mass in an ambassador's house, the fine was pounds and imprisonment for six months, one half going to the informer. in all householders in london and westminster had to give a list of persons lodging in their house, and the horses and arms there. but the laws against catholics practicing their religion were not rigorously enforced, nor were those against adherents of the formerly established church of england. the society of friends was founded by the son of a weaver. they greeted everyone as "friend" and did not bow, remove their hat (as was the custom when before the king or an earl), or otherwise show any reverence to anyone. from , they were called quakers because they trembled when religiously stirred. they reverted to the ancient "thou" and "thee" appellations. their dress was particularly simple, with no buttons, lace, ruffles, or embroidery. they hated ritual so much that they rejected baptism and communion. they did not observe the sabbath as a special day different from other days. they derided the holiness of churches. no clergy were admitted into their sect. when they met for divine worship, each rose to deliver extemporaneous inspirations of the holy ghost. women were admitted to teach the brethren and were considered proper vehicles to convey the dictates of the spirit. quakers believed that every man, in his own life, could be fully victorious over sin. the denied any clerical authority and all texts. they believed in the separation of church and state. they refused to swear to any oath, e.g. in court, or to participate in war. they refused to take off their hats to anyone but god. it was their practice to turn the other cheek when one cheek had been struck. if asked for his cloak, a quaker would give it. he never asked more for his wares than the precise sum which he was determined to accept. the quakers encouraged widows and widowers to provide for children from a first spouse when remarrying. they carefully selected masters and mistresses who wanted to take on child apprentices for their suitability for such responsibility. the education of quaker women did not decline, as it did for other women. from the fervor of their zeal, the quakers broke into churches, disturbed public worship, and harassed the clergyman and audience with railing and reproaches. when brought before a magistrate, they show no reverence but treated him as an equal. sometimes they were thrown into mad house or prisons and sometimes whipped or pilloried. they endured stoically under this suffering. mary fisher from yorkshire introduced quakerism to new england. in there were separation agreements between spouses as to property, e.g. support and maintenance. cromwell had bad experiences with parliaments. the rump parliament was a remnant of the long parliament. the army and then cromwell, although a member, came to believe that its members were self- interested, preoccupied with perpetuating themselves in seats of power, and corrupt. they thought that their own hopes of reform in the law, in the church, and in public finances were being deliberately frustrated. cromwell came to doubt that it would ever give the people adequate government and protection. he started to believe that one man as chief executive could do this better. cromwell dismissed the rump parliament in . a new constitution created a puritan "parliament of saints". these men were nominated in various ways, such as by church parishes, and selected by cromwell. this one-house parliament of saints in made cromwell lord protector for life with executive power of the state, with responsibility for making peace and establishing order after a decade of civil strife and political chaos. he was to administer the government and be the chief magistrate. it also provided for triennial parliaments (consisting of one house), and religious freedom for all except roman catholics and adherents of the formerly established church of england. cromwell did not tolerate the ritual of the formerly established english church nor allow any of its adherents to have any office under him. his was a purely puritan government. he did not sell offices. the parliament of saints challenged many vested interests in property such as sales of delinquents' and papists' lands. it clashed severely over the continuation of tithes to the church. it became disorderly when some declared the parliament dissolved and left. others remained in their seats. to avoid a parliamentary crisis, cromwell had soldiers close the parliament of saints and lock its doors. the people supported this action because they were dissatisfied with the state of public affairs. the next parliament that was tried was elected on a new constitutional basis of men with pounds, but these men voted to make parliament sovereign without a chief executive, thereby abolishing the protectorate. cromwell was distressed that this parliament had also voted themselves to be the sole determinors of atheism and blasphemy instead of advancing liberty of religious conscience and religious toleration as cromwell had advocated. he dissolved this parliament, declaring that it was not acting for the public good. a last parliament was also dissolved by cromwell for tending to loosen the bonds of government and thereby threatening the peace of the nation. cromwell had first ruled as a democratic leader who did not believe in force, but preferred to persuade with reason. he initially believed that people would do the right thing according to their consciences, but was disillusioned and then became autocratic. he came to rule as a military dictator. payment of taxes was enforced by distraint. after , he issued about proclamations covering public amusements, roads, finances, the condition of prisons, the imprisonment of debtors, banning of dueling and cockfighting, law reform, control of religion and education, and reorganization of the army. the singing of ballads was banned. the court of chancery was reformed by proclamation. the established church was reformed and the power to interfere with different faiths was denied to it. each parish could choose its form of service, whether presbyterian, congregational, baptist, or any other seen as fundamental by the puritans. no one was compelled to attend any particular church or to accept the discipline of any particular minister. but the book of common prayer was forbidden. there was freedom of worship for presbyterians, independents, baptists, quakers, catholics, and jews (who had secretly migrated to england to avoid persecution on the continent), but not prelatists (those favoring government of the church by bishops). in , cromwell placed major generals in charge of eleven newly- established provinces. as their governors, they had authority to levy troops, exact taxes imposed by the protector, disarm royalists and catholics, examine into the conduct of the clergy and schoolmasters, arrest dangerous and suspicious persons, and prevent unlawful assemblies, and to enforce the existing laws against immorality and blasphemy. the only appeal was to the protector. since they were puritans, they ordered public ale houses to close as dusk, banned idlers, minstrels, and actors, forbade exercising of horses on sunday and the holding of markets on saturday as well as sunday, censored the press, and proscribed newspapers. horse races, which meetings were used for seditious purposes, were closed. theaters were closed. dancing was discontinued. organs and choirs in churches prohibited. court masks continued because they provided soothing music. after a year, cromwell withdrew the major-generals. from this time, men of property hated the idea of a standing army. in , the officers of a new parliament modified the constitution and cromwell approved it, to secure liberties of the people as they never before had. under the modified constitution, there were again two houses. the commons regained its old right of exclusively deciding on the qualification of its members. parliamentary restrictions were imposed on the choice of members of the council, officers of state, and officers of the army. a fixed revenue was voted to the protector. no moneys were to be raised except by consent of parliament. liberty of worship was guaranteed to all except papists, prelatists, socinians (who denied the divinity of jesus), for those who denied the inspiration of the scriptures. liberty of conscience was secured for all. in , cromwell tried another parliament, but dissolved it because it wrangled without resolution. after cromwell died, the people demanded the return of a genuine and free parliament. the old constitution was restored and a new house of commons was elected. it called charles ii to return to be king if he promised religious freedom and backpay to the army, which had not recently been paid. when cromwell's puritan soldiers were disbanded, they did not drift into thievery as royalists soldiers had before, but took up honest work such as baker, mason, brewer, baker, or haberdasher. puritanism now made itself felt not by the sword, but in literature and politics. it affected the character of the english, who tend to be stoics, and imbued capitalists with a hard-working attitude. - the law - after the civil wars, the law against enclosure was not enforced. what was passed in parliament in cromwell's time were called statutes, but after cromwell's time, these statutes were not recognized as legitimate. "whereas public sports do not well agree with public calamities, not public stage-plays with the seasons of humiliation, this being an exercise of sad and pious solemnity, and the other being spectacles of pleasure, too commonly expressing lascivious mirth and levity ... public stage plays shall cease, and be forborne instead of which are recommended to the people of this land the profitable and seasonable considerations of repentance, reconciliation, and peace with god, ..." no book or pamphlet may be printed, bound, stitched, or sold or imported unless licensed and entered into the register book of the company of stationers. officials of this company and of parliament may search all places which they shall think meet for all unlicensed printing presses and all suspected printing houses, warehouses, and shops and other places for unlicensed books and pamphlets and papers and seize them and apprehend all authors, printers, and other involved people and bring them before parliament or the committee on examinations for punishment. justices of the peace and other officers may order doors and locks broken for this purpose. the fine is ten pounds for authors, five pounds for printers, two pounds for booksellers, and one pound for buyers who conceal a book bought. one half of each fine shall go to the person who discovers and prosecutes the offender, and the other half shall go to the poor. this law suppressed royalist newspapers but was enforced only with great difficulty. all shall observe sunday and days of thanksgiving in their "duties of piety and true religion publicly and privately" and none may sell wares or goods, including fruit or herbs upon pain of forfeiture of such. none may, without reasonable cause, travel, carry burdens, or do any worldly labors or work whatsoever or pay a fine of s. this work shall include grinding grain, fulling in mills, burning turf or earth, gathering taxes, melting wax for candles, brewing, baking, butchering cattle, tailors fitting or carrying clothes, barbers trimming hair, being present at fairs or markets, or washing, whiting, or drying clothes. nor may any one maintain or be present at wrestlings, shooting, bowling, ringing of bells for pleasure or pastime, masks, wake, church-ale, dancing, games, sport or, for those over , forfeit s., and for those having care or education of a child under , d. maypoles, a "heathenish vanity, generally abused to superstition and wickedness", shall be taken down by officers or else forfeit s. per week. if any offender can't pay his fine, he shall be put in the stocks for three hours. however meat maybe dressed in private families, and victual sold in inns and victualing houses in a moderate way, and milk sold before a.m. or after p.m. persons of the trinity, angels, or saints shall be demolished. altar and communion tables must not be raised but leveled. there may be no copes, surplices, superstitious vestments, or holy water fonts. there may be no crosses, crucifixes, pictures of the trinity, angels or saints on plates. all organs must be taken away. the fine for using the book of common prayer is five pounds for the first offense, ten pounds for the second offense, and one year imprisonment without bail for the third offense. the penalty for writing or preaching against the directory for public worship is five to fifty pounds. blasphemies and heresies such as teaching or writing or printing that there is no god, that god is not almighty, that jesus was not divine, that the resurrection of jesus did not occur, that the bible is not the word of god, or that there is no judgment day after death, are felony without benefit of clergy. if such an offender recants, he shall stay in gaol until he obtains two sureties. if he offends again after recantation, it is felony without benefit of clergy. in adultery was declared to be a felony, except for a wife whose husband had been beyond the seas for three years or had been reputed to be dead. incest was also declared to be a felony. it was defined as marrying or having carnal knowledge of one's grandparent, parent, sibling, mother's brother or sister, father's wife, mother's husband, son's wife, daughter's husband, wife's mother or daughter, or husband's father or son. fornication was given a punishment of three months imprisonment and until security was obtained for one year for good behavior. it was defined as carnal knowledge of a virgin, unmarried woman, or widow. a common bawd or one keeping a brothel or bawdy house was to be whipped, set in the pillory, marked in the forehead by a hot iron with the letter: b, and then imprisoned for three years without bail and until there were sureties for good behavior for life. the second offense was felony without benefit of clergy. there was to be no corruption of the blood. however, juries were reluctant to convict for adultery and incest. there shall be no profane swearing or cursing of forfeit by a lord s., a baronet or knight s., an esquire s., a gentleman s. d., and all others s. d.there is a double fine for the second offense. for the tenth offense, the offender shall be bound by sureties for good behavior for three years. a person equating himself or another with god or not believing in god shall be imprisoned for six months without bail. for the second offense, he shall be banished from the nation. no longer shall people be punished for nonattendance at church on sunday or days of thanksgiving, but may be at some other place of prayer, preaching, reading, or the scriptures. hawkers and ballad singers have been libelous, so are to be whipped as common rogues and then dismissed. also, their ballads and pamphlets are to be confiscated. vagrant, idle, loose, dissolute and disorderly persons and fiddlers in inns, alehouses, and taverns are to be punished as rogues, vagabonds, and sturdy beggars, that is, whipped. in , treason against parliament was defined as writing, printing, or declaring that the government is tyrannical, usurped, or unlawful; or that parliament is not the supreme authority of the nation; or plot, contrive, or endeavor to stir up or raise force against the government. attainder for such would not work corruption of the blood. treason to the protector was defined the same as it was to the king. army deserters are to be corporally punished or executed. fellable wood and underwood, but no timber trees, may be cut within miles of london because fuel is needed, especially by the poor. this will be supervised by overseers appointed by parliament. no one may import foreign hats or hatbands to relieve that industry in england. as of , certain food could not be exported when the prices of such exceeded a stated amount. for instance, pounds for a gallon barrel of beef, d. for a pound of bacon, pounds and s. for a gallon barrel of butter, and s. for pounds of rye, pease, or beans. the customs for such items was more for foreigners than for natives, for instance s. for natives and s. for foreigners for a barrel of beef. butter for sale must not be corrupt and be properly weighed. one must obtain a license to buy wheat or other grain and put it to sale in meal or flour or else forfeit three times the value. all books of the law, writs, pleadings, and patents shall be in english or else forfeit pounds. no deer may be killed or else forfeit pounds, half to the informer and half to the poor. interest may not exceed pounds for a loan of pounds yearly as of . no goods are to be imported from america, asia, or africa except in english ships or else forfeit all goods and the ship, one half of which goes to the one who seizes the goods and prosecutes. none may be imported from europe except in english ships or ships from the country of origin of the goods. no salt fish may be imported or exported but in english vessels. there is a pound reward for discovery of highwaymen and burglars or persons who break and enter into houses and there use violence. no cart or wagon or carriage on the road may be drawn by more than five horses or six oxen and a horse except for military vehicles. notice of intended marriages shall be published once a week for three weeks in a public meeting place called church or a public market place next to church. exceptions to the marriage shall be noted by the register and considered by the justice of the peace before the marriage is performed. the words used shall be: "...promise to be unto thee a loving and faithful husband..." and "promise to be unto thee a loving, faithful, and obedient wife...". there shall be no cock-fighting because it disturbs the peace and usually is accompanied by gaming, drinking, swearing, and quarreling. anyone challenging or accepting a challenge to duel shall be imprisoned for six months without bail, and must acquire two sureties for a year. anyone fighting a duel in which death ensues, shall be banished for life. horse races were forbidden in for six months to discourage mischievous plots and designs by enemies of the state. the penalty was forfeiting the horse. attendees were to be brought to justice. as of , a house or building built within ten miles of the walls of the city of london not having at least four acres had to pay a fine of one year's rent. all houses within london or westminster or the suburbs must be brick or stone, and built straight up without protruding into the street or else forfeit pounds. as of persons living extravagantly without visible estate or calling may be made by justices of the peace to acquire sureties for good behavior or go to gaol. they would also be sent to the house of correction to work for three months for the first offense and for a time specified by the justice of the peace for the second offense. anyone winning at betting or playing at cards, dice, tennis, and horse races shall forfeit double his winnings. excluded from pardon were buggery with man [sodomy] or animal [bestiality], carnal ravishment of women, and bigamy. drunkenness was much punished. husbands were responsible for their wives' oaths and fathers for their daughters'. - judicial procedure - the protector is the supreme magistrate of the commonwealth, with power to pardon all crimes, except murder and treason. parliament was no longer a court. use of the torture was proscribed in . in , the justices were given a salary of , pounds and forbidden to take fees or rewards. they also got tenure, thus freeing them from government pressure. now civil justice was honestly dispensed and justices were learned and honest. the jurisdiction of admiralty court was defined to include: ships and vessels with tackle, apparel and furniture thereof; repairing, victualing, and furnishing provisions of ships and vessels for sea; all cases of bottomry [ship-owner indemnified if the vessel were lost, but paid over a substantial share of the profits if it reached its destination safely], contracts beyond the seas concerning shipping or navigation; charter, parties, contracts for freight; bills of lading; mariners wages; damage of goods on board ships; and damage by one ship to another including by anchors or want of laying buoys. it did not include contracts between merchants. - - - chapter - - - - times: - - the monarchy was restored and charles ii came to the throne. the episcopacy of the bishops and the book of common prayer were restored. this book retained all its ceremonies, despite opposition by the presbyterians. the confiscated royalist, church, and crown lands were ordered to be restored, and most were. charles ii was presented with the traditional rights of choosing his own privy council, ministers of state, and justices; making foreign policy; controlling the armed forces; and approving statutes. he was also presented with the power to call and dismiss parliament, but later, in , a statute required that parliament be held at least once every three years, to avoid royal schemes of non-parliamentary government. the house of lords was reestablished and there were again bishops in it, though fewer than before (about / instead of about / ). there were peers for the next century. the house of commons was elected in the usual way, but without a king's writ. the commons was composed mostly of royalist established church members. its leaders were important members of the king's privy council. the feudal tenures of the crown, such as knights' service, were converted into free socage. they were discharged of homage, reliefs, escuage, and aids. charles relinquished purveyance, wardships, and forfeitures of marriage. in return, parliament granted him a fixed yearly income of , pounds from excise tax on beer, cider, and tea. several hundreds of dissenter ministers and school teachers were ejected from their positions, but later those who were not baptists were returned by statute of parliament. (baptists did not believe in an established church.) charles ii was an easygoing and kindly man and hard to ruffle. he had a weariness in the folly of men and a cynical disbelief in human virtue. his wit and great sense of humor softened many a potentially tense situation. his restoration to the throne brought in a time of enjoyment of life in reaction to the puritanism of before. at his succession, the elected parliament was oriented toward royalty and the established church. he was voted an income of , , pounds a year. he also sold many of the last crown lands. but he always had great debts, which he described as a "desperate but not serious" situation. this was in part due to his generous maintenance of several successive mistresses and more than about a dozen illegitimate children. his entourage also included physicians, surgeons, a librarian, a poet laureate, chaplains, painters, an historiographer, musicians, a royal composer, and an astronomer. charles even joked on his deathbed that "i am sorry gentlemen, for being such an unconscionable time a-dying." the day of charles ii's restoration and birthday was designated as a day of thanksgiving when all were to participate in prayers and the singing of psalms at some church or other suitable public place. charles initiated the return of sunday afternoon wrestling, archery, music, and dancing. theaters reopened with actresses playing women's parts, an audience only in front of the stage instead of around it, a drop curtain, and painted two-dimensional scenery. actresses were allowed pursuant to royal proclamation so that plays should become "useful and instructive representations of human life" rather than "harmless delights". charles went to plays regularly. actresses were assumed to be mistresses of patrons in return for their jobs, but one fourth were actually chaste women married to actors. comedies were the preferred plays. courtesans were sympathetically and even admirably treated in plays, which mocked all restraints and glorified immorality with the exception of pornography, which was banned. bad actors were hissed off the stage. henry purcell wrote religious music for churches, ceremonial music for the english court, and theater music for english opera. opera made music a vehicle for human emotions. the gentry sang to the lute and danced to string instruments. many owned and played musical instruments. humble people had folksongs and instruments like the pipe and tabor for dancing. singing in parts was popular in town and country. in john banister started the first regular series of public concerts in his house. there were lovely formal gardens in which to walk, to see fireworks, and to buy the new ice cream. charles did much garden and park planning and let the public enjoy the royal st. james park. he loved hunting too and had the royal forests replenished with deer after poaching during the cromwell era had greatly reduced their numbers. charles ii introduced sailing and yacht racing for pleasure. he also participated in and promoted horse racing. the breeding of thoroughbred horses began with breeding to arab mares. gelding horses were now preferred over stallions. there were trotters, cart horses, and some "fast" race horses. boxing (with no gloves nor ring) was a national sport. ice skating with iron blades was popular. valentine's day was celebrated. italian puppet shows played in london. dress returned to elaborateness. gentlemen wore cavalier-style long wigs with curls, despite the church's dislike of wigs. this could hide the short hair of a former puritan roundhead. in , charles introduced a new mode of inexpensive court dress which was made entirely from english textiles. this gave rise to gentlemen's weskits to below the knee with a coat of the same length and full sleeves. stockings and shoes replaced the long fitted boots. charles set a court tradition of men wearing a scarf tied around the neck. ladies often wore their hair in masses of ringlets with little corkscrew curls on each side of their heads, and later piled their hair up elaborately on their heads. they wore satin or silk dresses fitted at the waist with a pointed bodice, and full skirt. the shoulder line was low and the sleeves full and open at the front with fastenings of jeweled clasps. the only fast colors were reds, blues, purple, and yellow, but not green. they kept their hands warm in muffs. women wore perfume, rouge, and face patches. some women put on a lot of make-up. many men dressed effeminately with rouge, face patches, heavily scented clothing, muffs, and many ribbons of many colors. the facial beauty patches were in shapes such as stars, crescent moons, and hearts; they diverted attention from the common smallpox scars. there were oxford shoes, which laced up the front through eyelets. the members of the house of commons dressed like the gentry and assumed their manners. there was exaggeration in all complimentary and ceremonial language. the gentry were beginning to be thought of as a "squirearchy". they owned about half the land of the country. the population according to class was as follows: number of social ranks, household household households degrees, titles size yearly income in pounds temporal lords , spiritual lords , baronets knights , esquires , gentlemen , persons in greater offices and places , persons in lesser offices and places , eminent merchants and traders by sea , lesser merchants and traders by sea , persons in the law , eminent clergymen , lesser clergymen , freeholders of the better sort , freeholders of the lesser sort . , farmers . , persons in liberal arts and sciences , shopkeepers and tradesmen . , artisans and handicrafts , naval officers , military officers , common seamen , laboring people and out-servants . , cottagers and paupers . . , common soldiers , vagrants, as gypsies, thieves, beggars as can be seen, agriculture is still the most common occupation. great houses now had a central dining chamber [saloon] for dining, with sets of lodgings [suites], usually for couples, around it. each lodging had an ante-chamber and/or drawing room, and then a bedchamber, off of which there was a servant's room and a closet [cabinet]. no longer did personal servants bed down in the drawing room or outside their master's door or in a truckle bed at his feet. the servant's room was connected to a back staircase for use by servants. secret guests also used it. the closet room was the innermost sanctum for privacy and gave its name to the later cabinet of the government. there were fewer servants and they were of a lower social status than before. they were often sons of merchants, clergymen, and army officers. gentlemen no longer advanced by service to a great man, but instead through grammar school and university education, commerce, the law, or the armed services. this change came about because the state now maintained reasonable law and order. there were more female servants, who were paid less to cook and to clean as well as doing laundry and nursing. servants were kept more in the background, preferably out of sight. the elaborate ceremonial ritual with sewer, carver, and cupbearer was gone. a butler replaced the yeomen of the buttery, ewery, and pantry, and footmen began to wait on the table at which the lord, his lady, and other couples sat. servants no longer had meals in the hall, which now had a grand staircase up to the dining chamber. the highest servants, the officers: clerk of the kitchen, clerk of the check [comptroller], head cook, butler, and groom of the chambers, and female housekeeper ate in the gentleman-of the-horse's room, although at a separate table. the kitchen staff ate in the kitchen. the footmen, underbutler, porters, coachmen, grooms, stable-boys, gardeners, maids ate in a servant's room. the steward was no longer the chief household officer, but had a room near the kitchen. the bulk of the servants slept in the basement or subordinate wings of the house. great houses of nobles had more rooms, such as a chapel, library, parlors, dressings rooms, and galleries; there was a variety of architectural floor plans. the structure of a noble household of an earl was as follows: the chief official was the receiver general. he had financial responsibility for the household and prepared accounts for the household and for the tenants' estates. these were checked by an auditor. the receiver general was often the son of a country gentleman and had a salary of pounds raised to pounds with longevity. he had a servant and an assistant. if married, he had a house on the property. there was perhaps an attorney on retainer (paid for a certain number of hours per week or month). the gentleman of the chamber [privy purse] kept the accounts of the family and bought them apparel and toiletries. he was in close personal attendance upon the earl. his salary was pounds a year. besides the receiver general and the gentleman of the chamber, the tutor and chaplain had the closest personal contact with the family. the lady had a gentlewoman with a maid servant. the receiver general supervised most of the staff. there was a steward of pounds a year. he supervised a clerk of the kitchen and a house bailiff of pounds a year. the bailiff had responsibility for the produce of the estate, e.g. the gardens, the deer park, and the fish ponds. under the clerk of the kitchen was the cook man and kitchen boys, the latter of whom were clothed and fed but not paid. the steward also supervised the pound yearly porters, who kept the gates; the watchmen outside; and the head housekeeper, usually a woman of to pounds yearly. she supervised the laundry maid and general maids, who spent much of their time sewing. the steward was also responsible for the wine cellar. a dozen footmen belonged partly to the house and partly to the stables and received to pounds yearly. they waited on the lord and lady in the house and accompanied them in travels and did errands for them. the gentleman of the horse supervised the stables, coach, dogs, kennels, and pound yearly huntsman. boy pages also worked partly in the house and partly in the stables. they were clothed and fed, but not paid. the head gardener received pounds for tending the flowers, vegetables, and fruit trees. he had casual workers as needed to assist him. the steward was also responsible for the london house. here there was a housekeeper, a watchman, and a pound a year gardener, all there permanently. when the lord was there, bargemen were employed for his barge. the salaries for the family estate totaled about pounds a year. sometimes married sons' or daughters' families stayed for months at the family estate; then they would pay for their part of the food. well-to-do people drank imported tea and coffee, sometimes from porcelain ware, and usually after dinner or supper. most tea leaves were brewed first for the family and guests and a second time for the servants; then they were given to the servants' relatives or friends. queen mary encouraged the fashion of collecting chinese porcelain. the rich had red or black and gilt lacquered cabinets and cupboards. oak gave way to walnut, with its variegated surfaces. there were grandfather clocks. some fireplaces now had cast-iron firebacks. stuffing began to be upholstered to woodwork benches. chairs were taller in the back. ladies did needlework to cover them and also made patchwork quilts. cane seats came into fashion. >from the spring of to the end of there was a great plague, mostly in london. it was the last and worst plague since the black death of . it lasted over a year and about one-third died from it. households with a plague victim were walled up with its residents inside to reduce contagion, and then marked with a red cross. church bells tolling their requiems clanged in ceaseless discord. the mournful cry "bring out your dead" echoed in deserted streets. at night groups of people shoveled the corpses into open graves. to prepare for this revolting task, they often first became drunk out of their senses. people acquired wild beliefs in hope of avoiding the plague. for instance, at one time it was thought that syphilis would prevent it, so maddened hordes stormed the brothels. at another time, it was rumored that the plague could be burned out of the air, and all one day bonfires blazed outside every door and people sweltered in the heat. other localities posted sentries on the road to keep londoners out of their areas to prevent the plague from spreading there. since sneezing was thought to be the first sign of a person getting the plague, it became common to ask god to bless a person who sneezed. in london, statistics were collected on the number of plague victims and their places of death to try to determine the cause of the plague by correlation, a new method. this was a natural sequent to merchant john gaunt's book "natural and political observations made upon the bills of mortality", which compiled yearly vital statistics from which to analyze, for instance, causes of death due to particular diseases. it reached conclusions such as that fall was the most unhealthy season; females had longer life spans than males; and infant mortality was very high. in a fire destroyed three-fourths of the city of london. the blazing buildings were so hot that people with leather buckets of water, hand squirts, and manually operated water-pumping machines could not get near them. there was a lot of noise from falling buildings. panic and desperation were widespread. there was a lot of crying out and running about distractedly. people saved some of their possessions by burying them or removing them from the fire's path as they moved to different lodgings. the streets were full of carts piled high with furniture and merchandise. the thames river was thick with heavily laden barges. melting lead from st. paul's church ran down the streets in a stream. the tower of london, upwind of the fire, was saved by blowing up surrounding buildings. eventually the wind abated and the fire was put out. a fire court with royal justices was created to offer settlement terms about property that were free, fair, fast, and final. army tents and supplies, and soup kitchens sustained the citizens in the fields. after the fire, buildings had to be brick or stone rather than wood, except for doors and windows. also, more plaster and tile was used. all roofs had to be of tile or slate, rather than thatch. there was a general use of tile for roofing. about , came slate for roofings. all buildings had to be at least two stories high, with flat facades rather than overhanging upper floors. they had to have wide brick walls around them to avoid the spread of fires. many streets, squares, and alleys were professionally planned, after the example of inigo jones, who had continued his town planning with lincoln's inn field's open square surrounded by houses with iron balconies. another example was leiscester square. main streets had to be wide enough to stop a fire. the street selling that had caused so much congestion was removed to new market places. the massive rebuilding of london ended the monopoly of the building trade claimed by the mason's company. astronomer and geometrician christopher wren designed and built a new st. paul's cathedral and many churches in london, thus becoming england's first architect. he worked up from a square base through all sorts of shapes to a circular double dome on top. the fire put an end to whitehall as a royal residence and st. james palace was used instead. but at least one fire hazard remained: the practice of lighting new fires by taking buckets of hot coals from one room or house to another. this was faster than the several minutes it took to use a tinder box to start a flame, i.e. striking a piece of flint upon a piece of steel making a spark which was dropped onto tinder and then blown upon. matches were invented in this period, but expensive and unsafe. nicholas barbon began fire insurance in the s. if fire broke out on an insured premises, the insurance company's firemen would come with leather buckets and grappling irons, and later small hand pumps. barbon also redeveloped many districts in london, tearing down old buildings without hesitation. he started the system of selling off leases to individual builders, who hoped to recover their building costs by selling their houses before they were completed and before substantial payments on the lease became due. entrepreneurial master-builders subcontracted work to craftsmen and took a large profit or a large loss and debt. aristocrats bought large parcels of land on which they built their own mansions surrounded by lots to be rented to building contractors and speculators like barbon. the houses built on these lots were sold and the underlying land rented. these rentals of land made the mansions self-supporting. barbon built rows of identical townhouses. sometimes houses were built on all the lots around a square, which had gardens reserved for the use of those who lived on the square. most of the new building was beyond the old city walls. marine insurance for storms, shipwreck, piracy, mutiny, and enemy action was also initiated. before the fire, e.g. in tudor times, the writing of risks had been carried on as a sideline by merchants, bankers, and even money lenders in their private offices and was a private transaction between individuals. london was residential and commercial. around the outside were tenements of the poor. from to , london's population had risen tenfold, while the nation's had only doubled. london went from % to % of the nation's population. in , london's population was about half a million. after , london's population grew at the same rate as the nation's. the first directory of addresses in london was published in . business began to follow the clock more strictly and many people thought of their watches as a necessity. london coffee houses, which also sold wine, liquors, and meals, became specialty meeting places. they were quieter and cheaper than taverns; for a penny, one could sip a cup of coffee by the fire, read the newspapers, and engage in conversation. merchants, stock jobbers, politician groups, soldiers, doctors and clergymen, scholars, and literary men all had special coffee house meeting places. notices and letters of general interest were posted therein. many merchants, brokers, and underwriters, especially those whose houses had been burned in the fire, conducted their business at their coffee house and used it as their business address. men in marine insurance and shipping met at lloyd's coffeehouse, which was run by edward lloyd who established it for this purpose in . lloyd provided reliable shipping news with a network of correspondents in the principal ports at home and on the continent and circulated a handwritten sheet of lists of vessels and their latest movements at his coffeehouse. the patrons cheered safe arrivals and shared their grief over ships lost. they insured their own risks at one moment and underwrote those of their friends the next. auctions of goods and of ships and ship materials which had been advertised in the newspapers were conducted from a pulpit in the coffeehouse. french wine was consumed less because of heavy taxation and spirits and beer were consumed more. the streets were alive with taverns, coffee houses, eating houses, and hackney coaches past p.m. at night. coffee houses were suppressed by royal proclamation in because "malicious and scandalous reports" defaming his majesty's government were spread there, which disturbed the peace and quiet of the realm. but this provoked such an uproar that it was reduced to a responsibility of the owner to prevent scandalous papers and libels from being read and hindering any declarations any false and scandalous reports against the government or its ministers. london air was filthy with smoke from coal burning. in the streets were lit with improved lights which combined oil lamps with lenses and reflectors. groups of householders combined to hire lighting contractors to fulfill their statutory responsibility to hang candles or lights in some part of their houses near the street to light it for passengers until : p.m., and later to midnight. in a monopoly was sold to one lighting company. in a body of paid watchmen was established in london. an office of magistrate was created and filled with tradesmen and craftsmen, who could make a living from the fines and fees. this was to supplement the unpaid justices of the peace. the public was encouraged to assist in crime prevention, such as being witnesses, but most policing was left to the parishes. crowds punished those who transgressed community moral standards, threatened their economic or social interests, or offended their religious or patriotic beliefs. often a crowd would react before the call of "stop thief" or the hue and cry from the local constable. pickpockets would be drenched under a pump. cheats would be beaten up. dishonest shops and brothels would be ransacked or destroyed. the most common targets were promiscuous women and pregnant servants. there were many highway robberies and mob actions in london. mobs in the thousands would turn out against the catholics, especially at times of unemployment and trade depression. working people still saw demonstrations and violence as the best way to achieve their economic goals, since strikes didn't work. for example, the silk workers used street violence to get protective legislation against imports and mechanization in . the manufacture of silk material had been brought to england by french workers driven from france. in , three thousand london silk weavers demonstrated outside the commons and east india house against the importation of raw silks by the east india co., and a couple months later, they attacked a house in the city owned by a gentleman of the company. in , heavy duties were imposed on the import of indian silks and wearing of indian silks was prohibited by statute. sometimes mobs would break open the prisons to release fellow rioters or take action against strike breakers or informers. parish constables elected by their neighbors could not control the mobs and stayed within their parishes. dueling was still prevalent, even though against the law. in london and westminster, it was hard to enforce the requirement that inhabitants keep the street in front of their house clean and store the filth until the daily raker or scavenger came with cart and dung pot. so a commission was made responsible for paving and keeping clean the streets, making and repairing vaults, sewers, drains, and gutters, and removing encroachments. it compensated those with encroachments of over years. it assessed inhabitants of such streets d. per square yard from the front of their building to the center of the street. women continued to empty their pails and pans outside their doors and did their washing on stools in the streets. there was a penalty of d. for throwing filth in front of one's house, and d. for throwing it elsewhere in the streets. scavengers and rakers could lodge their coal ashes, dust, dirt, and other filth in such vacant public places as the commission deemed convenient for accommodating country carts returning otherwise empty after their loads were sold. however, this system did not work because people would not pay their assessments. so there was a return to the former system of requiring citizens to sweep and clean the streets in front of their buildings twice a week and keep the filth until a scavenger or raker came. the penalty for not doing so was s. d., later raised to s. any one throwing coal ashes, dust, dirt, rubbish, or dung onto the streets or lanes incurred a fine of s. there was a fine of s. for hooping or washing any pipes or barrels in any lane or open passage or repairing coaches, sawing wood, or chiseling stones in the streets. pigs kept in or about one's house had to be forfeited. one way that people traveled was to be carried in sedan chairs held up by two horizontal poles with one man at the front ends and another man in back. there were so many sedan chairs and coaches for hire in london that the watermen lost business. all hackney coaches in london or westminster were required to be licensed and marked with their owner's distinctive mark so that complaints could be made. their maximum rate was s. for a hour day, and d. for the first hour and d. for every hour thereafter. licensed coachmen were not allowed to practice any other trade. the coaches paid the commission pounds yearly. hay sold along the road brought d. per load, and straw d. per load, to the commission. there had to by paid d. for every cart load of hay sold at the hay market and d. for every cart of straw, to go towards paving and repairing the hay market street. overall, agriculture improved. fields that would have been left fallow were planted with new crops which restored indispensable chemical elements to the soil. at the same time, they supplied winter food for stock. the size and weight of animals for slaughter grew. there was so much stock breeding that it was more economical for a family to buy meat, milk, and eggs, than to maintain its own animals. there was an explosion in the growing of beans, peas, lettuce, asparagus, artichokes, and clover. the demand for food in london and other urban areas made enclosure for crop cultivation even more profitable than for sheep grazing. the government made no more attempts to curtail the enclosure of farm lands. the number of enclosures grew because copyholders were not successful in obtaining the legal security of tenure. but most land was not enclosed. in in essex, the wages for mowing one acre of grass were s. d.; for reaping, shearing, binding one acre of wheat s.; and for threshing a quarter of wheat or rye s. wives participated with their husbands in general agricultural chores and did the dairy work including making cheese. every householder kept chickens because egg production was cheap, their market price being only s. for a hundred. wives also took care of the gardening work and traditionally kept for their own the cash that came in from garden, dairy, and poultry products. a wife made jellies and preserves when the fruit trees, bushes, and vines were bearing. imported sugar enabled fruit to be preserved as jam in jars sealed with a layer of mutton fat to make them airtight. she was likely to concoct medications from her herbs. meat had to be smoked or salted when there was not enough fodder to keep animals alive through the winter. she saw to it that the soap was boiled and the candles molded. she cooked the daily meals, did the washing, produced cloth for the family's use, and sewed the family's clothing. women had less work and lower pay than men. since most cottages had a spinning wheel, spinning work was readily available to wives. in the s, a female weaver or spinner was paid - d. per day. a domestic servant, who was usually female, was paid - s. a year. men in the trades objected to competition from lower-paid women. aristocratic ladies actively managed their family's household and estates. the only work available to a high middle- class woman who was waiting to get married was to be a governess in another household or a lady-in-waiting to a gentlewoman. children often worked; this was recommended so that they were under the direct supervision of their parents rather than getting into mischief in the village. the mother typically mingled severity with gentleness, but the father did not dare to err on the side of leniency. discipline was by whipping. children were treated as little adults. the lack of a conception of childhood innocence even extended to the practice of adults to tell bawdy jokes in their presence or play with their children's genitals. about , the royal society of london for the promotion of natural knowledge was founded by charles ii, who became its patron. it was formed from discussion groups of the new experimental philosophy. it included the baconians formerly at oxford and cambridge, who were ejected at the restoration, and a group of gresham professors of geometry and astronomy. the royal society met at gresham college. its goal was to compare ideas in mathematics and science and identify specific aims of science. it published scientific reports to make its findings generally known. this was a great improvement over the private correspondence among scientists, which was limited by the use of various languages. charles himself had his own laboratory and dabbled in chemistry and anatomy. similar societies were formed in many places in the world. theologicians warned that scientific research was dangerous. but it's advances improved agriculture, manufactures, medicine, surgery, navigation, naval architecture, gunnery, and engineering. issac newton was a genius, who in his childhood designed and built model windmills, water wheels, water clocks, sundials, and kites. he came from a family which had risen from the yeomen ranks to the gentry. for a few years after graduating from cambridge university in , he secluded himself in the countryside to study. here, using the work of john wallis, he formulated the binomial theorem that expands (a+b) raised to the nth exponent power, where n is an integer. he also worked with numbers that had exponents that were fractions, unending decimals, or negative numbers. certain patterns of numbers, such as the sum of doubling each number in a series as in: + + + +...never terminates; the series is infinite. he then developed the notion of a number being the limit of the summation of an infinite converging series of a pattern of numbers, such as the limit of +( / )+( / )+( / )...= . by considering the state of motion of a mass-point in an infinitely short time under the influence of an external force, he developed rules for finding areas under algebraic curves [integration], such as the hyperbola, and finding tangents to algebraic curves [differentiation], which he recognized as inverse processes. that is, differentiating the integral of a function results in a return to that function. newton discovered that colors arose from the separation, rather than a modification, of white light, that is natural sunlight. he did this using a prism to dissect the white light into its spectrum of constituent colors and then using a prism and lens to recombine the colors to reconstitute white light. the spectrum was the same as that of a rainbow. he determined the angle of refraction of each color by beaming white light through a prism, and then through a hole in a board which isolated one color, to another prism. when he discovered that all colors reflect from a mirror at the same angle, he invented and built the reflecting telescope, which used a parabolic concave mirror and a flat mirror instead of a convex lens, thereby eliminating the distortions and rainbow coloring around the edges that resulted from the refraction of different colors at different angles. he deemed a ray of light to consist of a rapidly moving stream of atomic particles, rather than robert hooke's pulses or christian huygens' waves, because shadows showed a sharp boundary between the light and the absence of light. he reasoned that if light was made up of pulses or waves, it could spread around obstacles or corners as sound seemed to do. he approximated the speed of sound by timing echoes in corridors of various lengths. newton was methodical and combined the inductive and deductive methods of inquiry, first making observations, and then generalizing them into a theory, and finally deducing consequences from the theory which could be tested by observation. he carried mathematization of data from experiments as far as possible. newton theorized that the same gravity force that pulled an apple down from a tree extended out to the moon to hold it in its orbit around the earth. he saw a connection between these movements by imagining a cannon on a mountain shooting a series of cannonballs parallel to the earth's surface. the first shot has only a tiny charge of explosive, and the cannonball barely makes it out of the muzzle before falling to the ground. the second shot is propelled by a larger charge, and follows a parabolic arc as it falls. the next shots, fired with increasingly more propellant, eventually disappear over the horizon as they fall. lastly, with enough gunpowder, a speeding cannonball would completely circle the earth without hitting it. by extrapolating from these ever faster projectiles, he opined that the moon was held in its orbit by the same earth force that operated on the projectiles. he correlated the moon's orbit with the measured acceleration of gravity on the surface of the earth. he put various substances with different masses and weights into the shell of a pendulum and observed that the pendulum had the same period [time for one oscillation] and fell at the same rate as free-falling objects. then he formulated the idea that the ultimate agent of nature was a force acting between bodies rather than a moving body itself. gravity did not act in proportion to the surfaces of bodies, but in proportion to quantity of matter. gravity penetrated to the very center of all bodies without diminution by the body. gravity's force extended to immense distances and decreased in exact proportion to the square of the distance. newton opined that an object moves because of external forces on it rather than by forces internal to the object. he connected the concepts of force and acceleration with a new concept, that of mass. mass is a quantity intrinsic to an object that determines how it responds to forces, such as the force of gravity. the greater the mass of a body, the stronger the force of gravity on it, and the more difficult it is to get it moving. he found that the acceleration of a body by a force is inversely proportional to its mass, and formulated the equation that force equals mass multiplied by acceleration. so if a force acts on a planet, it produces a change in velocity that is proportional to the force and in the same direction as the force. his law of inertia is that any body, persists in its state of rest or of uniform motion in a straight line, unless affected by an outside force. his next law is that when a body a exerts a force on a body b, then b also exerts a force on a which is equal in amount but opposite in direction. this means that forces that operate between different parts of a planet produce no net force upon the whole planet, so that the mass of a planet can be treated as if it is concentrated at a point. these are his three laws of motion. his law of gravitation explains how the whole universe is held together. this law holds that every object in the universe attracts every other object with a single gravitational force that is directly proportional to the product of their masses and inversely proportional to the square of the distance between their centers. newton had first accepted the cartesian system of celestial vortices of aether that swirled the planets and comets around their orbits. he determined that kepler's law that areas were swept out in equal times implied that gravity acts in the direction of a line between the planet and the sun. the gross features of the universe and kepler's observations led to his recognition that the attraction between two bodies decreases inversely in proportion to the square of the distance between them. only one kind of force would satisfy kepler's requirement that the sun was a focus of an ellipse and still be consistent with kepler's law that the square of a planet's period was proportional to the cube of its mean distance from the sun; that was the inverse square law. then he came to accept robert hooke's hypothesis that planets are kept in their orbits by the combination of an attractive power of the sun and of motion in a straight line that was tangential to their orbits. from astronomical data, he calculated this centripetal acceleration of each planet towards the sun to be proportional to the inverse square of its distance from the sun. he also calculated the "centrifugal" accelerations in a straight line. his experiments showed that the centripetal force in a circular orbit was equal to the mass of the body multiplied by the square of its velocity, all divided by the radius of the circular path. he used calculus and differential equations to determine centripetal forces of elliptical orbits, where the distance from the sun, the velocity, and the acceleration were variables. newton showed that his single gravitational force could account for the way free-falling objects descend to the ground, the parabolic trajectory of projectiles, the path of the moon in its orbit around the earth, the course of the tides every twelve hours, the lower densities of the earth's atmosphere at greater heights, the paths of jupiter's moons, the paths of comets, and the elliptical paths of the planets in their orbits around the sun. this determination discredited the previous belief that invisible angels moved the planets. newton proved from his law of gravitation and his three laws of motion the truth of kepler's laws of elliptical planetary motion. newton demonstrated from data collected from the comet of that comets moved according to his law of gravitation. he showed that the path of a body traveling within the gravitational force of the sun is a circle, an ellipse, a parabola, or a hyperbola. he used the concept of a common center of gravity as a reference point for other motions. the fact that the center of gravity of the solar system was within the body of the sun verified that the sun was indeed at the center of the solar system. newton deduced that the tides were created by the rotation of the earth with bulges of water on the earth's surfaces that were closest and farthest from the moon. the moon "pulled" the water nearest to it with a greater force than average. it "pulled" the water farthest from it with a force weaker than average. these two moving bulges created two tides a day. newton's "principia mathematica philosophiae naturalis", was published in . the established church denounced it as being against the scripture of the bible. newton did not agree with the established church on many points, such as the trinity, and was considered a heretic. he had his own interpretations of the bible and doubted the divinity of jesus. but it was accepted for dissenters like newton to qualify for full civil rights by maintaining an outward conformity and taking the sacrament in the established church once a year. newton was given a royal dispensation from taking holy orders as prescribed by the rules for tenure of fellows of his college at cambridge university. he did believe in a god who created the universe and who had a ubiquitous presence in all space. when catholic king james ii tried to have a catholic monk admitted to the degree of a master of arts at cambridge university without taking the oath of adherence to the established protestant church, so that he could participate in the business of the university, newton was active in the opposition that defeated this attempt. as a result, he was elected to parliament by cambridge. when olaus roemer, a danish astronomer, was applying newton's laws to the paths of the moons of jupiter to make a table of eclipses of jupiter's moons for use in determining one's longitude, he noticed that the eclipses were five hundred seconds ahead of average time at that time of year when the earth and jupiter were on the same side of the sun, and five hundred seconds behind average time six months later, when jupiter was on the other side of the sun. he reasoned that this difference was due to the light from jupiter's moons taking more time to reach the earth when jupiter was farther from the earth, i.e. on the other side of the sun. he concluded that light does not travel instantaneously, but at a certain speed. from the fact that it took seconds for light to travel the diameter of the earth's orbit, he calculated its speed in . in , christian huygens formulated the law of conservation of momentum [mass multiplied by velocity], which held that when objects collide, they may each change direction, but the sum of all their momenta will remain the same. huygens also recognized the conservation of what was later called "kinetic energy", which is associated with movement. he developed laws of centrifugal force for uniform motion in a circle. he derived the formula for computing the oscillations of a simple pendulum. in , he posited the theory that light consists of a series of waves. it states that all points of a wave front of light in a vacuum may be regarded as new sources of wavelets that expand in every at a rate depending on their velocities. he thought this a better explanation of bending and interference of light than newton's particle theory. in , robert boyle, called the father of modern chemistry, defined an element as a substance that cannot be further decomposed. he distinguished an element from both a mixture, which is easily separable, and a compound, which is not easily separable. he used an air pump he developed and a glass jar to create a confined vacuum space for experiments to find the properties of heat, light, and sound. he noted that burning objects such as candles and coal, when placed in the receiver of his air pump, went out after a time although air was still present. he opined that animals were dependent upon a fresh supply of air to live. he studied the relationship between the volume, density, and pressure of air and gases. he proved by experiment that the volume of a gas at a constant temperature varies in inverse proportion to the pressure applied to the gas. since gas is compressible, he opined that gases must be composed of discrete particles separated by void, and also that basic physical properties were due to motions of particles, or atoms, which was an ancient greek conjecture. this cast doubt on the long-held belief that everything was composed from four basic elements: air, water, fire, and earth. boyle's laboratory at oxford was denounced by the oxford clergy as destroying religion. in , the steam pressure cooker was invented by denis papin from france. he invented the atmospheric engine in . robert hooke helped boyle build his air pump. hooke was thirteen when his father, a minister, died. hooke was a genius with innate mechanical skill and was an able mathematician. he applied a spiral spring to regulate the balance of watches. a lord financed him as a gresham lecturer of geometry for pounds a year. in , he used a pendulum to measure the force of gravity and showed that the center of gravity of the earth and moon is a point describing an ellipse around the sun. in , he explained the twinkling of the stars by irregular atmospheric refractions. he formulated the theory that light is composed of pulses. hooke's law states that the amount an elastic body such as a spring stretches out of shape is in direct proportion to the force acting on it: its tension. he invented the odometer, a wheel to measure distances. he constructed an arithmetical machine. he invented the universal joint, which can move in many angles. his book of drawings of microscopic animals is a classic. he proposed that fossils can be used as a source of information about the earth's history. hooke became rich from his inventions, but this was not known until his death, when thousands of pounds were found in his iron chest. in , wallis postulated the correct theory of impacts of inelastic bodies, based on the principle of conservation of momentum. in , he introduced the first graphical representation of complex numbers. royal astronomer and genius edmond halley, the son of a soap maker, studied tides, magnetism, and the paths of comets and stars. he went on voyages to study the heavens from different positions, thereby laying the foundations of physical geography. he showed that the stars change in position in relation to each other. with newton's help, he calculated the orbit of a comet he saw in to be elliptical rather than parabolic and then proved it was the same comet that had appeared in and , indicating it's regularity; it was then named "halley's comet". however, the church of england still embraced the idea that comets and eclipses were evidence of god's wrath. greenwich observatory was built in . halley used a barometer to measure the density of the atmosphere and related its readings to elevations into the atmosphere and to weather. he determined that the cause of the tropical trade winds was the sun warming the tropical air at the equator, causing it to rise and move north as it was replaced by cooler air from the north. this body of air was deflected by the rotation of the earth. he illustrated the tropical winds with the first meteorological map. he made a descent in a diving bell, which was used to try to reach wrecked treasure ships. he studied fossils and perceived them as remnants of living beings that had died long ago, and imagined a succession of living things. halley surveyed the tides and coasts of the british channel for the king in . in , apothecary nicolas lemery divided substances into mineral, vegetable, and animal. he wrote a dictionary of pharmaceuticals. john ray and francis willoughby were friends who traveled together to study plants and animals respectively. john ray started the science of zoology with his edition of francis willoughby's "ornithology" on birds and his own "history of fishes". he also attempted the first scientific classification of animals in his "synopsis of quadrupeds". ray compared anatomies and experimented on movements of plants and the ascent of sap. he knew that fossils were remnants of old animals. ray first suggested the concept of species in classification of animals and plants. he opined that the goodness and wisdom of god was shown not only by the usefulness of animals to man's uses as taught by the church, but also by the adaptation of animals to their own lives and surroundings. the vast array and dispersal of animals found by world explorers all over the world cast doubt on the biblical story of noah putting two of every kind of animal on an ark. the science of botany began with ray's "history of plants" and the researches of robert morrison, who was charles' physician and keeper of his gardens. nicholaus steno, a danish physician, diagrammed six levels of stratification on the earth's surface and demonstrated in that layers of strata of rock are always deposited with the oldest layers on the bottom and the youngest layers on the top. this began the science of geology. he argued that shifts in the earth's strata caused the formation of mountains. he identified fossils as ancient creatures. the idea that fossils were remnants of dead animals existing before man conflicted with the religious idea that adam's fall began sin and caused death. the idea from fossils that existing species of animals were modifications of predecessor animals conflicted with the religious belief that noah's ark had preserved all the varieties of animals. john aubrey described stonehenge, thus founding prehistoric archaeology. he thought it to be a druid temple. the telescope and compound microscope, which has an objective lens and an eyepiece lens for producing a wide range of magnifications, were further developed. the cellular basis of life was discovered and described by robert hooke. nehemia grew, the son of a grammar school master who became a physician, observed and drew plant anatomy, including leaves, flowers, fruits, seeds, ovules, pollen grains, and stamens. he was the first to observe the existence of plant sexuality. italian marcello malpighi, a physician, used the new compound microscope to study human skin, spleen, kidneys, and liver and also compared the livers of several types of animals. he discovered capillaries linking the arterial and venous circulation in the lungs. dutchman anton van leeuwenhock, a cloth manufacturer who made microscopes to inspect the quality of cloth, turned them to use in understanding the life cycles of mites, lice, and fleas. he correctly described human blood cells. when he found what he described as tiny animals (bacteria, protozoa, and rotifers), he sent clear descriptions of them to the royal society in london as proof against the theory of spontaneous generation, which held that lower forms of life could arise from nonliving matter. this started the science of bacteriology. with the discovery of the egg in the female reproductive system, the status of women was lifted. physician thomas willis, son of a farmer, dissected brains of men and animals to study the anatomical relations of nerves and arteries. excess urine had been associated with a wasting disease. willis identified diabetes mellitus with excess of urine that was sweet. physician thomas sydenham, son of a gentleman, observed epidemic diseases of london over successive years, thus founding epidemiology. he also furthered clinical medicine by emphasizing detailed observations of patients and maintaining accurate records. he wrote a treatise on gout and identified scarlet fever. he introduced a cooling method of treating smallpox. but he still relied on the big three treatments: bloodletting, purging, and sweating. bloodletting was to draw off bad blood so that it could be replaced by a better fluid. another treatment used was cupping, whereby a vacuum was created by heated glass cups to draw blood to the surface of the skin. john locke performed one of the first successful operations draining a kind of abscess of a man's liver. it was common for people who felt ill to take a laxative and rest at home. in , physicians opened the first dispensaries, which gave treatment and medicine together, to take business away from their rivals: the apothecaries. london's apothecaries were released in from jury service and serving as constable, scavenger, or other parish or ward office because it was necessary that they be available to attend the sick at all times. peruvian bark which had quinine as its alkaloid had been introduced as a proven cure for the ague, a fever with chills usually due to malaria, in . the english ceased to believe in holy wells, but went to spas such as bath for treatment for disease. there was more bathing because private homes in towns now had indoor baths. the public baths came into disuse. for childbirth, only rich women were attended by physicians. most physicians used talismen such as the eagle stone at deliveries. caesarian section almost always led to the death of the mother. midwives were licensed by the church and could baptize babies. jane sharp wrote "the midwives book" with anatomical illustrations. women over thirty had fewer children and the last child born was at an earlier age than before. this was in part due to birth control such as coitus-interruptus, long breast-feeding of a current child and/or the taboo against sex if the wife was still breast-feeding. rich women often employed wet-nurses to breast- feed their babies. babies seldom thrived, or even survived, without out a regular supply of breast milk. john locke, an oxford don, physician, and son of an attorney, expressed a view that the monarchy was not based on divine right, but rather on a contractual relationship with the people, who were reasonable, free, and equal by nature. this idea was first adopted by revolutionists and then became accepted as orthodoxy. also, he articulated the right of resistance, the supremacy of legislative assemblies, and the responsibility of rulers to answer to their subjects. he theorized that men turn to forming a civil government when there is a need to protect accumulated property from some unreasonable men. this, along with the protection of life and liberty, was the primary function of government, before royal pleasure, national pride, or foreign conquest. he wrote theories on the interaction of supply, demand, interest rates, rents, coinage, and foreign exchange rates. he believed that interest rates should be the natural ones determined by market forces rather than by the legislature, especially if there was an attempt to lower interest rates below their natural rate, which was not only undesirable but easily circumvented. he thought that attempting to legislate contrary to natural economic laws, e.g. prices, was doomed to failure from unexpected consequences. he agreed with most mercantilists that by maintaining a large inflow of precious metals through consistent export of surpluses in foreign trade would lead to low interest rates, increased trade, increased capital stock, high employment, and high prices, and therefore a healthy economy and enrichment of the nation. locke thought that knowledge comes primarily from experience, i.e. sensation and reflection, rather than from innate ideas placed in the mind by god, so that observation and experimentation are necessary to find truth. he theorized that propositions of truth have probability rather than certainty. probable propositions included opinion, belief, and revelation. his "thoughts on education" was a great book on the formation of character. locke also advocated the use of a large field for inventing labor-saving and economic devices for agriculture. he espoused freedom of thought in "letters on toleration" and wrote "an essay concerning human understanding", which described how the mind functions in learning about the world and which attempted to reconcile science and christianity. he was a great admirer and friend of newton and they shared religious views. he was also a member of the royal society. at oxford and cambridge universities, there were the most enlightened theologians, classicists, orientalists, philologists, mathematicians, chemists, architects, and musicians. there were professors of anglo-saxon, hebrew, and arabic. john locke's influence caused modern philosophy to supercede traditional scholasticism. there were no more disputations to qualify for degrees. some of the students were the sons of noblemen and sat at meals with the heads, tutors, and fellows of the colleges. most students were the sons of landowners, clergymen, professional men, or prosperous men of business. they were known as the gentlemen commoner students. the few poor students were known as servitors and paid for their education by menial work. corporal punishment ceased. instead there were fines, suspension, and expulsion. fellows of colleges had common rooms for drinking and smoking together as they had done in taverns outside college walls. the king had authority to grant licenses in sell or give land in perpetuity, to encourage founding and augmenting colleges and schools. the two universities were vested with the presentation of benefices that had belonged to papists. english nonconformists such as presbyterians were excluded from oxford and cambridge universities, so they were educated at glasgow in scotland. grammar schools were blamed for the past civil war by educating too many people above their station, so ecclesiastical control now stifled them. a few dissenting schools were established. charity was given to schools for children of the poor for placement as apprentices, but not to educate them above their stations. in the s, about % of males in london were literate. by , illiteracy was a special characteristic of the poor instead of a characteristic of the vast majority of common people as in . fountain pens came into use. many books written tended to be about the author's experiences, for instance samuel pepys' "diary", gilbert burnet's "history of my own times", john evelyn's lifelong diary with vivid descriptions of striking events of the day, and nonconformist celia fiennes' description of her tour of england on horseback. there were many political biographies. historians did not yet study history as a continuous process, but narrated self-contained stories to instruct by example. william fleetwood wrote about economic history in "chronicon preciogum". george hicks put together a "thesaurus" of the northern languages. thomas hyde wrote on ancient persian religion. john spenser compared jewish rites with those of other semitic people, thus starting comparative religion. richard bentley, william's librarian, wrote a "dissertation" on the ancient greeks. he compared the ancient greek life with modern life. he also confuted atheism on the newtonian system. a translated version of "critical history of old testament" by frenchman richard simon identified the old testament as history instead of divine revelation. john milton wrote "paradise lost", which retells the biblical story of the creation and the fall of adam and eve against the backdrop of satan's rebellion and expulsion from heaven and emphasized god's justice in spite of everything. the poem deals with the puritan struggling against evil and the problem of sin and redemption. it has a cold and severe conception of moral virtue and stoical self-repression in its characters. there is no sympathy with the human condition. reading this book made the english more serious, earnest, and sober in life and conduct and more firm in the love of freedom. john bunyan wrote "pilgrim's progress" in which a tinker takes a journey to find the everlasting city of heaven and on the way meets people who try to harm him. but he derives strength from his adversities. the journey is a metaphor for the christian soul trying to find salvation. it is puritan in its sympathies and has insights into human nature. john dryden wrote on large social, political, and humanistic issues, often by political satire. william congreve wrote plays such as a comedy on manners. william wycherley wrote cynical satires and portrayed folly, affection, and vice. john vanbrugh wrote plays satirizing london high society and social institutions. john toland wrote "christianity and mysterious" on deism. "puss in boots", "red ridinghood", and "cinderella" became available in print. there were many female poets, bookwriters, and playwrights. anne finch, later vicountess conway, wrote the philosophical book: "principle of the most ancient and modern philosophy" to reconcile the new science with christian belief. in it every creature had a body and a spirit. mrs. aphra behn wrote "oroonoko", one of the first novels. basua makin, governess of the little sister of charles ii wrote an essay to revive the education of women, arguing that women's activity in wartime showed that they were fit to be educated. elizabeth elstob, who studied teutonic languages, was one of the founders of women's education. mary astell proposed a college for women. some women painted portraits. there were rigid censorship acts from to . the first required that no one could print a book without first registering it with the company of stationers of london and having it licensed by appropriate authority: common law books by the lord chancellor or the lord keeper of the great seal, affairs of state and history books by the secretaries of state, heraldry books by the earl marshall or kings of arms garter, university books by the chancellor or vice chancellor of either of the universities, and all others including divinity, physics, and philosophy by the archbishop of canterbury, or bishop of london. books could be imported only into london and not sold until approved by the archbishop of canterbury or bishop of london after being opened and viewed by a scholar appointed by these bishops and a representative of the company of stationers. if heretical, seditious, scandalous, schismatic or otherwise dangerous or offensive, the importer could be punished. no one could print or import copies of any books without consent of the owner with right by letters patent. the penalty for not doing so was to forfeit s. d. for each such book, of which the king would receive one half and the owner one half. printers had to set their own name to the books they printed and also the name of the author or else forfeit such book. only freemen of london who were members of the company of stationers could sell books. the company of stationers had the authority accompanied by a constable to search all houses and shops where they knew or had "probable reason" to suspect books were being printed. they could search houses of persons of other trades only by special warrant. they could examine books found to determine if they were licensed and, if not, to seize them. justices could imprison offenders. the first offense by offending printers was to be punished by suspension from printing for three years, the second offense by permanent disallowance from printing, fine, imprisonment, and corporal punishment not extending to life or limb. this statute was enforced by frequent prosecutions, such as of publishers of pornographic books. the only newspapers to appear between and were official government sheets. but in the requirement to license publications, including newspapers, was abolished, thereby giving some freedom to the press. locke had argued for this freedom, stating "i know not why a man should not have liberty to print whatever he would speak and to be answerable for the one just as he is for the other..." in the first daily newspaper in the world came into existence in england. the stationer's company monopoly of printing also ended in . printing was not regulated and no longer criminal just because it was unauthorized. printing could now be done in other places than london, york, oxford, and cambridge. the rich got richer and the poor got poorer. many successful merchants and manufacturers bought landed estates and established a line of country squires or baronets or even peers. the fashion started in the nobility and the richest mercantile families that their wives should become ladies of leisure. for workers though, there was constant underemployment. in periods of economic crisis industrial workers lost their jobs. much work was seasonal. anyone who could work most of the time was fortunate. laboring and out- servants, who comprised one fourth of the population, and cottagers and paupers, who comprised another fourth of the population, had to spend more than they earned. the poor rate collected from the parishes for the cottagers and paupers was d. per week. there was an agricultural depression that was deepest in the s after the collapse of a boom. it was the only bad depression experienced in peace time. there was famine in . any person receiving relief from any parish and his family members cohabiting with him was required to wear a badge with a "p" which identified his parish. this was to differentiate them from idle, sturdy, and disorderly beggars who were not entitled to relief. there were more poor people and, despite the poor laws, many became rogues or vagabonds or starved to death. many went from parish to parish to build cottages and consumed all the wood there and then went to another parish. so the parishes were allowed by statute to remove any person coming to settle in any tenement under the value of ten pounds who was likely to be chargeable to it. they were then removed to the last parish were they had resided for at least forty days. excepted were people temporarily moving to another parish to work at harvest time. the overall effect was to decrease the mobility of people. but a later statute permitted greater movement of poor people by allowing those who were poor for want of work to go to another parish where labor was wanted. they had to bring a certificate of their present parish membership to the new parish, where they could settle if they rented a tenement worth ten pounds a year or served in a parish office. later, settlement had to be given to inhabitants paying its parish's rates, and unmarried inhabitants hired for one year, and apprentices bound by indenture. but parishes were displeased with the requirement to give settlements to these people because they feared they would become poor and need parish assistance, thereby increasing the rates to be paid. parish poor houses were converted into spinning schools to obtain an income. parishes of large towns were combined to set up large workhouses, where the poor could be set to unskilled manufacture, but the managers lacked the character and education to make them work. because prisoners often died before trial and the poor prisoners became instructed in the practice of thievery in prison, they were set to work on materials provided to them at public expense. no parish was rated at more than d. per week for such. the president and governors of corporations oversaw rogues, vagrants, sturdy beggars, and idle or disorderly persons working in corporations or workhouses. assessments were made for building and repairing gaols in order to maintain the health and safe custody of the prisoners. also, gaol fever, a virulent form of typhus, was so prevalent in the large prisons for criminals and debtors that it frequently spread through the adjacent towns. during some assizes, it killed sheriffs, lawyers, and justices. in , london lands were taxed for the relief of orphans. churchwardens could seize the goods and chattels of putative fathers and mothers deserting bastard children. >from to , societies for the reformation of manners prosecuted poor people for moral offenses. all hackney coaches and stage coaches in all the realm became required to be licensed. the turnpike system came into use. tolls were paid for road upkeep and repair by private companies. the local parishes ceased to have this responsibility. john ogilby wrote the first road book based on actual surveys of the roads. stage coaches cost a shilling for every five miles and went - miles a day. the trip from london to oxford was twelve hours. the company of coach and coach harness makers was founded with the consent of the king. the body of a coach hung from the frame by leather braces. one axle pivoted for turns. plate glass was used in the windows. rivers improved so that most places were no more distant from navigable waters than a long day's haul on land. the several post offices were put under the authority of one postmaster general appointed by the king for the purpose of speed and safety of dispatches, which were carried by horseback. one sheet letter going less than miles cost d., and more than miles, d. when the army was disbanded after the restoration, its officers and soldiers were allowed return to their trades and their apprenticeships without serving the usual seven years. parishes were required to provide for poor and maimed officers and soldiers who served charles i or charles ii. the royal hospital founded by charles as a home for veteran soldiers opened in . greenwich palace was converted to a hospital for seamen and their widows and children to encourage men to become seamen: mariner, seaman, waterman, fisherman, lighterman, bargeman, keelman, or seafaring man in the king's navy. also, children of disabled seamen were to be educated at the expense of the hospital. charles retained one regiment from which he started a small standing army, which slowly increased in size ever after. the army was primarily mercenary, as it had been in medieval times, with officers buying their commissions. colonels were the proprietors of their regiments and captains were the proprietors of their companies. the soldiers were ill mannered, swearing and cursing and stealing, sometimes from peoples' homes, and intimidating people with their swords. the bayonet was invented to attach onto a gun, which were muzzle-loading with a match lock. so pikemen with their long spears became obsolete. hand grenades and small explosive bombs came into use about . explosives were also used in mines. mines for coal became deeper as coal replaced the use of increasingly expensive wood charcoal for brewing and for brick, glass, and china manufacture. flooding of coal, tin and copper mines became a problem. in , thomas savery invented the miner's friend, a practical atmospheric steam engine without a piston. there was resort to many devices to fund wars. the land tax was still the primary tax. the customs and excise taxes were often extended to more goods and wares. sometimes there were duties imposed on marriages, births, and deaths. also, hawkers, peddlers, and other trading persons going from town to town to other men's houses on foot or on horse carrying wares had to buy a license. there were also loans from privileged companies such as the bank of england, east india co., and the south sea co. commissioners were appointed to take and state the account of all money in the public revenue. this discouraged the prevalent corruption of government officials and thereby the people were encouraged to pay their taxes. the goldsmiths loaned money to the king and to private persons and to the exchequer. receipts from goldsmiths for storage in strong boxes had become a de facto paper currency. but when the goldsmiths had no more money to lend, the bank of england was founded in under whig auspices to provide money for war. it was the first institution to issue notes in excess of its total deposits. however, it was not allowed to lend money to the crown without the consent of parliament. it was incorporated as the first english joint-stock bank and had about , shareholders. these original subscribers were individuals from london from many walks of life, including well-to-do tradesmen and about % of whom were women: wives, widows, or spinsters. not many corporations were original subscribers. holders of at least pounds could vote, of pounds could be directors, and of pounds could be governor. the bank issued notes payable to bearer and discounted bills, but these were not legal tender. it lent at % to the crown and occasionally to corporations. money was also borrowed by offering annuities on single lives. this was the first time the government borrowed directly from the public on a long- term basis. in there was inflation due to over issue by the bank because of inexperience, pressure from government, and the bank's greed for business. after a dividend of % in , the next year there was no dividend and so the bank stock price fell. in , five pound and ten pound short term bonds were sold to the public. also in that year was the first run on the bank. this occurred two days after clipped money lost currency; people wanted the new recoined money, but the mint had not supplied the bank with sufficient supplies. interest instead of cash was given for notes. cash was short for months. the bank's credit was much shaken. it was then given a monopoly so that its notes would not have competition. thereafter, its dividends were good - about % per year. because of its monopoly, its dividends were about % above the current going rate of interest. about this time, exchequer bills, with interest, were started by the exchequer and circulated by the bank of england. they were frequently endorsed many times by successive holders. the bank simply took over from the goldsmiths its main everyday business of deposit; running cash note [cashier's note, specie note, cash note], which was payable on demand and normally did not bear interest; and drawn note [precursor to the check, but not on special paper]. the bank gradually convinced many of its clients to use its "check" [cheque] paper when drawing. the check paper was unique to the bank and embellished with distinctive scroll work to serve as an obstacle to fraud. over time the running cash note tended to be for round sums of at least twenty pounds and multiples of five pounds. the bank of england had a monopoly on issuing notes in the london area. country banks arose and issued bearer notes payable on demand and interest-bearing notes in their areas. the bank of england gave to its depositors the service of paying annually to a designee without further order. a decision of the common law courts held that bills of exchange (written orders to pay a given a sum on a given date) were transferable to other people by successive endorsements. so long distance payments no longer had to be made in coin, with all the dangers of highway robbery. the financial revolution of the s meant that the merchant elite could invest in government bonds or company bonds at - %, or london leases at %, as opposed to income from landed estates, which was under %. shareholders were no longer personally liable for company losses. interest on loans was no longer considered sinful as long as it was not oppressive. the greater ability to borrow spurred the growth of capitalism. all brokers and stock jobbers in london and westminster of bank stock, bank bills, shares and interests in joint stock must be licensed by the mayor, which shall necessitate their taking an oath to exercise their office without fraud or collusion to the best of his skill and knowledge as of . this is to avoid the collusion of fixing values to their own advantage. compilations of tables of mortality originated the science of life-statistics. this made life insurance possible. but it was administered by ad hoc offices rather than companies and was not reliable in making payments. william petty made a statistical study of economics and determined that the basic values of an economy derive not from its store of treasure, but from its capacity for production. trade was studied empirically by statistics by new offices such as the inspector general of imports and exports. charles instituted a hearth tax of s. per year in , with constables and officers authorized to verify the number of hearths and stoves in houses. it was repealed in because it could not be enforced except by exposing every man's house to be entered and searched at pleasure by persons unknown to the people, which was oppressive and a badge of slavery. by bribes, charles built up a body of support in parliament which could be relied upon for a majority. they came to be called "tories" by their opponents. "tory" had been a term of abuse for irish catholic bandits. the tory and whig groups were known by their disagreement over the authoritarianism of the crown. the tories were sympathetic to the doctrine of divine right and favored a doctrinally high church. the tories represented landed property and the established church, and usually wore blue in contrast to the purple of royalty. many royalists became tories. the whigs refused to accept the sacrosanct character of the monarchy. the whigs opined that government depended upon consent of the people and that the people had a right of resistance. they subordinated the crown to parliament. the whigs represented the dissenters and the mercantile classes, and often wore red. many former puritans became whigs. "whig" had been a term of abuse for scots presbyterian rebels and horse thieves. the gout and venereal disease were common among political leaders. a primitive condom just introduced to the aristocracy from france helped deter syphilis, but was uncomfortable and unreliable. under charles ii, the treasury as a supreme financial body separated from the exchequer as a depository of revenue. a gold guinea coin was issued. from , government policy was controlled by specific appropriations. money bills had to originate in the commons, and could not be amended by the house of lords. boards became independent of the king's privy council and answerable to the secretary of state. in the s, charles compelled some of the livery companies in london to give up their charters to him and he called in many corporation charters of boroughs whenever some light excuse could be found to justify it. this was done by the use of the writ of quo warranto before a court. in london he had the tory mayor revive an ancient custom of selecting a sheriff by drinking to him at the annual feast. two tory sheriffs were installed into office. all these actions gave the king a voice in selection of the officers of london and boroughs, since royal commissioners would then determine who the officers would be. this was to assure london's representation in parliament by crown loyalists as london had been whig. it also allowed influenced selection of sympathetic jurors. criminal seditious libel was brought into the common law courts in , when benjamin keach was tried for writing a book containing contradictions of the doctrine of the established church. he wrote against infant baptism and asserted that laymen might preach the gospel. the justice intimidated the jury to find him guilty. he was sentenced to be fined, to spend two hours in the pillory in two successive weeks, and his book to be burned before his face. he was to be imprisoned until he found sureties for his good behavior and renunciation of his doctrine and for his future appearance in court. juries were loath to find anyone guilty of seditious libel. james ii succeeded charles ii to the throne and fostered roman catholicism by appointments and by attempting to suspend laws unfavorable to catholics. he commanded all bishops to read in the churches his declaration of indulgence exempting both catholic and protestant dissenters from all penal statutes based on religion. seven bishops refused to obey and jointly petitioned him, stating that his action was illegal according to parliament. he prosecuted them for seditious libel in the petition. the jury found them not guilty. james discharged the two justices of the five who had rejected the seditious libel doctrine which had been created by the star chamber court. this roused the whigs and tories in turn to discharge him by joining in inviting protestants william of orange and mary to take the throne in his place. james was effectively chased out of england by william's advancing army in the glorious revolution of - , which took away the powers of final authority from the king, but without transferring them to any other body. a "bill of rights" stated that . the king may not suspend laws or dispense with them without consent of parliament. . the establishment of a court of commissioners and like bodies for ecclesiastical causes is illegal. . the king may not levy money or extend an authorized levy without consent of parliament. . subjects have a right to petition the king without prosecution. . the king may not raise or keep a standing army within the country in time of peace without the consent of parliament. . protestants may have arms for their defense as allowed by law. . the elections of members of parliament should be free. . the freedom of speech or debates or proceedings in parliament should not be impeached or questioned in any court or place outside of parliament. . excessive bail should not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted (so no more men were whipped to death) . jury selection should not be tampered with, and jurors who try men for high treason should be freeholders. . all grants and promises of fines and forfeiture of particular persons, before conviction, are illegal and void. . parliament should be held frequently for redress of grievances and for the amending, strengthening, and preserving of the laws. . all protestants may freely exercise their religion and the king will maintain the protestant religion and the law and liberty of the realm. the right of the peoples' representatives to select and depose the king and to change the order of succession was established. there was no divine right or hereditary right to the crown. an english monarch was created by an act of parliament. the king still called and dissolved parliaments, except that parliament continued for six months after the death of a king. from , parliament sat every year. freedom of speech for members of parliament was established by a resolution overturning a king's bench felony conviction of sir john elliot. by the act of settlement of , no officer or pensioner of the king could be a member of parliament. all resolutions by the privy council had to be signed by the members consenting to them. no one born outside the realm could be a member of the privy council or of parliament, or could have any civil or military office or place of trust, or any grants of land or tenements from the king. justices served during good behavior instead of at the pleasure of the king. after the glorious revolution, tories tended to accept of the whig principles of limited constitutional monarchy instead of rule by divine right. under william and mary, the ministers were first chosen by them but could be impeached by the commons and then removed by the parliament. the commons removed anyone who disagreed with them as soon as he made a mistake. but the king could pardon anyone convicted by parliamentary bill of attainder. this was inconsistent, so no one was allowed to plead pardon by the king in an impeachment by the commons. thus parliament gained control of who would be ministers. the glorious revolution favored the capitalists and the commercial magnates even though it had been started by the landed families, with whom they now intermarried. there were companies in the fishing, silk, baize [a coarse wool], sugar, rope, paper, iron, hardware, gunpowder, saw milling, and pottery trades. the largest pottery workshops employed about six men. one man shaped the pots, another made the handles and put them on, while the others did the decoration, the glazing, and the firing. new companies could be formed without royal or parliamentary consent. there were no more commercial monopolies. regulated companies declined. the merchant adventurers lost their last monopoly privileges; their entrance fees were abolished. their method of limiting the volume of their exports of english cloth to germany to keep up prices was obsolete. now they tried to capture the market by selling cheap. there were more joint-stock companies and on a larger scale. they also no longer restricted output to keep prices high, but geared to export many inexpensive goods. the stock exchange was incorporated about . the domestic or "putting out" system came into use. in this system, the worker usually owned his own machinery and the capitalist owned the material, which he put out to the worker at home. the merchant manufacturer bought raw wool and had it carded, spun, woven, fulled, and dressed at his own expense. some farmers became spinners in the winter when outside work was impossible. the manufacture of nails was also done by this system. accordingly, the guilds and municipal corporations in towns ceased to control the recruiting, conditions of work, and pay of industries. new industries for the manufacture of silk, paper, and cutlery were organized on capitalist lines rather than being subject to guilds. that is, production was controlled by men with money and the means of manufacture. only a quarter of towns had any organized guilds at all. the growing town of birmingham was not a chartered borough, so never was encumbered with guild regulations. overall, the guild and apprentice regulations were effectively enforced only in agriculture work. artisans became known as tradesmen. work was usually irregular, some seasonal. in bad years, when a worker had to borrow money, he used work tools, such as his loom, as security. in this way, one's work tools often became the property of a merchant. some merchant clothiers also owned a fulling mill and a shop where the cloth was sold. the capitalists first became owners of the materials, then of the implements, and then of the work places. but production was still confined to the known wants of its habitual market. men used to working at home were generally not inclined to go to work in a factory. so there was an assortment of unskilled factory labor, such as country people driven from their villages by the growth of large estates, disbanded soldiers, and paupers. they had to be taught, trained, and above all disciplined. in , vauxhall glass works were opened with workmen brought from venice to blow their fine glass and make mirrors. the capitalist organization of the mining, glass manufacture, salt, soap, wire and other monopolized industries was made possible only by government support. >from the mid- s to , coal production increased fourteen times. sir ambrose crowley, an iron maker with coal works, established disability and medical benefits and pensions for his workers. smiths used trip hammers powered by watermills which turned axles with cams on them. they made iron gates, fences, balconies, and staircases with hammer, anvil, and chisel. cast iron was made by running liquefied metal into molds. this was harder but more brittle than the tough but malleable wrought iron. tinkers went from house to house to repair metal items such as pots and pans. salt and glass manufacture expanded. glass drinking vessels were in common use. mirrors of blown plate glass were manufactured in england. some plate glass by casting was imported. plate glass was a large and strong glass piece, which was formed by the liquid glass being poured on a table. this glass was not distorted, so mirrors could be made perfectly reflective. then plate glass for coaches, mirrors, and windows became manufactured in england; this new industry was organized on capitalist lines. the east india company had about half the trade of the nation. its shares were frequently bought and sold. it responded to anger over its semi-monopoly status by granting liberty to all english subjects below the age of forty to live in its indian settlements and to trade practically everywhere. bombay, india became subject to the east india company. charters gave the east india company the right to coin money, to exercise jurisdiction over english subjects, to levy taxes, to build and command fortresses, to command english and indian troops, to make peace and war, and to enter into alliances with indian rulers. the company always paid high dividends and the market price of its shares generally rose. pound stock was worth pounds in , pounds in , pounds in , and even up to pounds in , and then fell to pounds in . in a new charter for the company included loss of monopoly status by resolution of the commons. with this resolution, parliament assumed the right of regulating commerce, now no longer the king's province. thereafter the commons regulated trade with india and determined who could participate in trade there. political issues developed, which initiated corruption at elections by entertainment and bribes to candidates, which were later proscribed. the trade opened up to many more traders and investors. ordinary investors came to include women and quakers. when there was a surplus of grain, it was exported. about , the king set up a board of trade of eight paid members and great officers of state, who nominally belonged to it, and a staff. this was to achieve a favorable balance of trade. for instance, it imposed tariffs to protect internal markets and put restraints on imports of goods producible in the country, e.g. live cattle, dairy products, and woolen goods. it also restricted the export of raw wool. england led the way in protectionist measures. exports included grain, silk, metal wares, foodstuffs, lead, and tin. cloth and manufactures were exported to america. dyeing and dressing of cloth became the norm and undressed cloth exports fell sharply. imports included linen, flax, hemp, timber, iron, silk (raw, thrown, and woven), wine, brandy, fruit, coffee, chocolate (served as a drink or used in cooking), cauliflower, and oil. >from america came molasses, sugar, tobacco, and dyes. sugar was in great demand for tea, coffee, and chocolate. the east india company imported calico, silk, pepper, spices, china tea, potions, and saltpeter. tonnage of english shipping doubled by exports and imports increased % by . parliament required an oath of allegiance to the new sovereigns william and mary from all those in public functions, including the clergy. by extending this rule to the clergy, parliament asserted a supremacy of parliament over the church. it also asserted a supremacy over the king by requiring all monarchs to take a coronation oath promising to govern according to the statutes, laws, and customs of parliament, to make judgments with law and justice in mercy, and to maintain the protestant religion established by law. drinking of gin, which had first been made by a flemish physician, became popular under king william, who was dutch. the year of his accession, the gin monopoly ended. england competed with other nations for land in the new world. carolina, named for charles ii, was colonized for commerce in . the episcopal church, an analogue of the church of england, was established there by law. the whole coast became english after war with the netherlands gave new york, named for charles ii's brother the duke of york, and new jersey to england in . presbyterians and baptists fled from religious tests and persecutions in england to colonize new jersey. for free passage to the english colonies, people became indentured servants, agreeing to serve the master of the ship or his assigns with a certain kind of labor for a term of a few years according to a written contract made before departure. also, various statutes made transportation to any part of america available to any person who would pay for his transportation, for a term of years, usually seven, as a new possible penalty for offenses. in , harvard college was founded in new england to advance literature, arts, and sciences, as well as to train ministers. some american colonists sent their sons to be educated at the inns of court in london. in , quaker william penn, son of an admiral, founded the colony of pennsylvania for quakers in a "holy experiment" in political and religious freedom. the king had granted proprietary rights to this land to him to discharge a crown debt to his father. when penn refused to take off his hat before king charles and asked why charles took off his own, charles, unruffled, replied that "it's the custom of this place that only one man should remain uncovered at a time". the pennsylvania charter of went beyond magna carta and england's law in guaranteeing right to counsel and giving a right to defendants to summon witnesses in all criminal cases. it gave penn absolute authority and he established liberty of conscience (freedom of religion) and freedom from arbitrary arrest. in , some quakers founded a small hospital in pennsylvania as an asylum for the insane, where they would be treated humanely. proprietary colonies, in which an individual or syndicate held under the crown a sort of feudal overlordship, were founded in america: namely, virginia, maryland, carolina, new york and new jersey in , and pennsylvania and delaware in . new hampshire was made a royal province in to cut off the expansion of massachusetts, which had been avoiding the trade laws. these colonies were distinguished from the corporate colonies of massachusetts, plymouth, connecticut, and rhode island, which made their own arrangements for internal government without a royal executive. charles persuaded the chancery court to declare the charter of massachusetts void; it was given a new charter in which made it a royal province. new york was made a royal province in . maryland's proprietor gave way to a royal governor in . soon all colonies except rhode island, connecticut, pennsylvania were royal provinces, with governors nominated by the crown. this bringing of union to the colonies was done for maintenance of order, to coordinate defense, and to enforce trade laws. in , the hudson's bay company was incorporated to engage in fur trade with indian trappers in the hudson bay and to find a northwest passage to china. in the founding of the "society for the propagation of the gospel in foreign parts" by the church of england created many missionaries in the colonies, where they called their churches "episcopalian". increase mather and his son cotton mather were puritan ministers in boston. increase was for a time the president of harvard college and participated in obtaining the new charter of massachusetts of . he and his son tried to maintain the principles of the puritan founders of massachusetts, which included the theories of diabolical possession and witchcraft. but the thought of presbyterians, anglicans, and baptists became influential also. in in the small town of salem, massachusetts, some hysterical girls showing strange spasms and sounds charged they had been bewitched by certain other residents. victims were deceived, flogged, or tortured into forced confessions and then excommunicated from the church. they were then hanged and their property confiscated. one man endured being pressed to death for refusal to plead so that his property would be inherited by his family rather than confiscated due to being convicted. eventually, some prominent citizens including judges were accused. then the more thoughtful people began to doubt the whole phenomenon and admitted error. the excommunications were revoked. cotton mather came to accept newton's science and advocated inoculation. he encouraged puritanism into a simpler piety and charity. this influenced american protestantism toward a generalized concern with good works, morality, and social leadership. - the law - any sale of land or lease or estate of freehold or copyhold shall be in writing and signed. an interest in land given orally shall have only the force of estates at will. all contracts for sale of goods or merchandise for the price of at least pounds shall be in writing and signed by the parties or shall be accompanied by part payment or partial acceptance of the goods. this is to deter fraud. this statute caused many small freeholders, including yeomen, who paid rent by custom to be dispossessed. mortgagees can hold the land of any mortgagor who borrows money upon security of the land or obtains another mortgage without prior notice to the initial mortgagee. the mortgagor has six months to pay off the mortgage and all interest and charges or vacate the land and lose his equity therein. but a widow's dower will not be affected if she did not join with her husband in the mortgage. if rent is not paid in a reasonable time, the renter's goods and grain may not only be distrained, but sold. one coparcener of a joint tenancy or tenancy in common may have a court partition the property without the presence of other coparceners, because such coparceners are often difficult to find. this is to avoid wasting of land lying uncultivated and unmanured. after the intestate death of a father of any sons or daughters without wives or children of their own in the life time of their mothers, the mother and every brother and sister shall share equally except the customs of london and york shall not be affected. administrators have to make an inventory. they have to account on request by an interested person. they must be bonded by two sureties. executors and administrators of estates of deceased persons must pay the debts of the deceased person rather than waste or convert the goods and chattels to their own use. creditors may recover their debts from heirs or devisees of the will of a debtor. men gone beyond the sea who could not be accounted for were deemed dead after seven years, so their life estates could be terminated. whereas lawful games are not to be used as constant callings for a livelihood, and young people are deceived and debauched and their money taken, anyone "winning" money by deceitful or fraudulent gambling shall forfeit three times his "winnings". when a bill of exchange drawn to at least five pounds is not paid on demand at the time it is made payable, the person who accepted it may make a protest in writing before a notary public, which shall be served on the maker of such bill, who must pay it and all interest and charges from the date of the protest. but if a bill of exchange is lost or miscarried, another shall be given in its place. no one may take more than pounds in interest for a pound loan. persons seeking election to parliament may not give or promise money, meat, drink, entertainment, present or gift to any elector. because the gaols were full of people in debt due to the late unhappy times such as the london fire, all prisoners for debt were to be released upon taking an oath that they had no property over ten pounds nor had disposed or conveyed property to defraud creditors. creditors not wanting them released had to contribute to their maintenance in gaol. the making or selling of fireworks is forbidden or else forfeit pounds. firing or throwing such from one's house onto or across the street is a common nuisance with a penalty of s. this is to avoid the loss of life and of eyes. treason to the king is to compass, imagine, or intend death or any bodily harm tending to death, or maiming or wounding, or imprisonment, or restraint as well as trying to depose him or levy war against him. also included is printing, writing, preaching, or malicious speaking. traitors shall suffer death and forfeiture as in high treason. any malicious and willful burning or destroying of stacks of hay, grain, or barns, or killing any horses, sheep, or cattle at nighttime shall be felony and punished by transportation to the american colonies for seven years. any person apprehending a thief or robber on the highway will be rewarded pounds from the local sheriff, to discourage the many robberies and murders which have made travel dangerous. also, executors of persons murdered while trying to apprehend a robber shall have the reward. no more than people may petition the king nor more than people may assemble to present a petition to the king, because more has been tumultuous and disorderly. anyone may without fee set up a hemp business including breaking, hatchelling [separating the coarse part and broken pieces of the stalk from the fine, fibrous parts by drawing the material through long iron teeth set in a board], and dressing it; or a flax business, including making and whitening thread, spinning, weaving, making, whitening, or bleaching hemp or flax cloth; making twine or nets for fishing or treating cordage for tapestry or hangings because the daily importation of such has in effect taken the work from the poor and unemployed of england. retailers of wine may not add to imported wines cider, honey, sugar, molasses, lime, raisin juice, or herbs. butter sold must be of one sort and not contain bad butter mixed in with good butter. butter pots must bear the name or mark of their potter. salt may be sold only by weight, to avoid deceit by retailers and wrong to buyers. no sheep, wool, woolfells, shearlings, yarn, fuller's earth, or fulling clay may be exported as has secretly been done, so that the poor of the realm may have work. fishermen may sell their fish to others than fishmongers at billingsgate fish market because the fishmongers have forestalled the market and set their own prices. the buyers of such fish may resell them in any other london market by retail, except than only fishmongers may sell in shops or houses. no tanned or untanned skin or hide of any ox, steer, bull, cow, or calf may be exported because the price of leather has risen excessively and leather workers can't get enough raw material to carry on their trade and because poor people cannot afford leather items they need. the newly incorporated company of silk throwers (drew the silk off the cocoon) employs many of the poor, but others practice the trade, so an apprenticeship of seven years is required to practice the trade in the realm. winders or doublers who purloin or embezzle and sell silk from the thrower who employs him and the buyer of such silk shall make such recompense as ordered by a justice of the peace or be whipped or set in the stocks for the first offense. the regulation of the silk throwers company restricting the number of spindles to be worked at one time is voided because it has taken livelihoods away and caused foreign thrown silk to be imported. buttons on garments must be made of silk, mohair, gimp, and thread and by needle to keep employed the many throwers, twisters, spinners, winders, and dyers preparing the materials for these buttons. no button may be made of cloth or wood. no tobacco maybe grown in england because the colonies would be discouraged from growing it and the king would not receive customs from it. no goods are to be imported to or exported from america, asia, or africa except in english ships, with masters and / of the mariners englishmen. no manufacture of europe may be imported into any colony or territory except shipped from england in english ships manned by englishmen. as of , if bond is not given for colonial exports of sugar, ginger, tobacco, cotton, indigo, cacao nuts, or fustic [tree that yields a yellow dye] and other dye- woods going to england, a duty must be paid. as of , no colonial goods are to be imported or exported or carried from one colony to another, except in ships owned and built in england, ireland, or the colonies with the masters and three fourths of the mariners from such places. these navigation acts were strictly enforced. only persons with lands and tenements or estate worth over pounds per year or having a lease of at least years worth pounds per year and owners and keepers of forests or parks may have any guns, bows, greyhounds, hunting dogs such as setting dogs, snares, or other hunting equipment. these persons may kill hare, pheasants, partridges, and other game. gamekeepers authorized by justices of the peace may search houses and outhouses and seize unlawful hunting equipment. if hunting equipment or game is found in a house without good account to the justices of the peace, they shall impose a fine of s. to s., one-half going to the informer and one-half going to the poor of the parish. anyone killing, hurting, or taking away deer from any forest or park or other ground without consent of the owner or custodian shall pay a pound fine. this was later increased to pounds for hunting deer and pounds for wounding or killing deer, with the pillory for one hour on market day and gaol for a year without bail for those who couldn't pay. any person privately and feloniously stealing any goods, including horses, by day or night, in any shop, warehouse, coach stable, or stable, whether there is a break-in or not, and whether or not the owner is present, or anyone assisting or hiring such person may not have benefit of clergy. any person who apprehends and prosecutes such person is excused from having to serve in parish and ward offices. an offender being out of prison who informs against two other offenders who are convicted is to be pardoned. any person convicted of theft or larceny and having benefit of clergy is to be burnt in the cheek nearest the nose instead of on the hand. army officers or soldiers who desert or mutiny shall suffer death or such other punishment as decided by a court martial of senior officers rather than the usual form of law, which is too slow. seamen not showing up on board after notice shall serve six months without pay, but shall not suffer as deserters. seamen do not have to perform service in the army. pirates may be punished by death and loss of all lands and chattels. any person aiding, advising, or concealing pirates may be likewise punished. officers and seamen killed or wounded in the defense of a ship or who seize or destroy pirates may be paid by the owners an amount up to pounds per pounds of freight as determined by a group of disinterested merchants and the judge. the amount due to a man killed will be paid to his widow and children. this is to be done when the ship arrives in port. any person who informs of any combinations or confederacies planning to run away with or to destroy a ship shall be rewarded by the commander or master of such pounds for a ship tons or under, and pounds for a ship over tons. the trial may be in england or the american colonies, whose authorities may issue warrants for arrest of alleged pirates. deserters from ships, because they often become pirates, shall forfeit all wages. masters forcing any man fit to travel to stay on shore or willfully leaves him behind shall suffer three months in prison without bail. persons may mine for ores on their own land, but must turn it over to the king who will give compensation for it, including gold, silver, copper ( pounds per tun), lead ( pounds per tun), tin ( s. per tun), and iron ( s. per tun). the fine for having, buying, or selling clipped coins is pounds, one-half going to the informer, and one-half going to the king. the offender shall also be branded in the right cheek with the letter "r". he shall be imprisoned until he pays the pounds. no hammered coins are lawful. anyone except a smith in the king's mint making tools or presses or other machines that can make counterfeit coins or having such which were stolen from the mint shall be guilty of high treason. by statutes of and , when goods have been carried off ships without customs being paid, the chief magistrate of the place where the offense was committed or the adjoining place, or the lord treasurer, or a baron of the exchequer may, upon oath, issue out a warrant to any person to enter, with the assistance of a sheriff, constable or other public official, any house, shop, cellar, warehouse, or room in the day time where the contraband goods are "suspected to be concealed", and in case of resistance, to break open doors, chests, trunks, or other packages and to seize such goods, provided that if the information whereupon any house is searched proves to be false, the injured party shall recover his full damages and costs against the informer by action of trespass. this was extended to the colonies in . the penalty for cursing or swearing by a servant, day laborer, soldier, or seaman is s. for others, it is s. the fine is doubled for the second offense, and tripled for the third offense. if an adult offender can't pay, he shall be put in the stocks for one hour. if a child offender can't pay, he shall be whipped by the constable or by a parent in the presence of the constable. the equity courts are now conceding limited proprietary rights to married women by enforcing premarital settlements or trust arrangements that designate certain property as a wife's separate estate and exempt it from control by the husband. such protective devices generally reflected a father's desire to shield his daughter from poverty and benefited only the landed aristocracy in practice. also, husbands are not allowed to punish and beat their wives as before. but the lower rank of men were slow to give this up. a wife could have the security of the peace against her husband. he could restrain her liberty only for gross misbehavior. in , the courts ruled that apprenticeships were necessary only for servants hired by the year, thus exempting most wage laborers. there were many variations in religious practices for statutes to address. the quakers and baptists were opposed to any state church. the independents and presbyterians accepted the idea of a state church. the members of the established church and roman catholics adhered to their version the state church as they had experienced it in the past. atheism had a bad reputation. in , the jews established the first synagogue in london. the privy council recognized their religious status as long as they were peaceful and obeyed the laws. they engaged in pawn-broking as well as money-lending. there were various statutes enacted over the course of time regarding religion, as follows: all ministers, school teachers, mayors and other town officials, including magistrates, were required to take the oaths of allegiance and supremacy [of the king over the church] or be removed from office. a great number of people refused to come to their parish church or other public place where common prayer and sacraments were administered and the word of god was preached according to the established church. the morning and afternoon sunday services with sermons, sometimes by guest preachers, continued. so factions and schisms developed. in response, the king changed the book of common prayer and its prayers were required by statute in to be read by some priest or deacon in all the churches and places of public worship wherever and whenever there was any preaching or lecturing. attendance at one's local parish church was never again required. as of , no nonconformist minister, i.e. one who endeavored any alteration of government either in church or state, was allowed to live or visit within five miles of any corporate town or any place where he had acted as minister or else forfeit pounds. persons not frequenting the established church were not allowed to teach in any public or private school or else forfeit pounds. by statute of , anyone at least sixteen years old who is present at any assembly, conventile [private meeting of religious dissidents to pray and expound scripture], or meeting under pretence of any exercise of religion in other manner than according to the established church of england at which there are at least five persons present shall be fined s. for the first offense and s. for the second offense. (this does not include members of the same household meeting in their home.) anyone who preaches or teaches at such a meeting shall pay pounds for the first offense, and pounds for further offenses. the householder who permits such a meeting shall pay pounds. a justice or justice of the peace or chief magistrate may break open doors and enter by force any house or other place where they have been informed of any such meeting and take persons there into custody for prosecution. this is to discourage the growing of dangerous seditious persons under pretence of tender consciences. religious nonconformity continued especially among the humble people. the penal statutes caused hundreds of these nonconformists to be put in gaol. from time to time, the king would release them and suspend these laws. sometimes, charles ii allowed dissenters to meet in private for worship if they got a license from him. religious gatherings grew in numbers, size, and geographical extent. dissenters were then allowed by statute to meet behind locked or barred doors. but they had to pay tithes and could be prosecuted in the ecclesiastical courts for not doing so. by statute, all congregations and assemblies for religious worship had to register with the local bishop or archbishop. disturbers of religious worship were required to find two sureties for the amount of pounds. attendance at the established church of england was never again required. nor was preaching or lecturing constrained. instead, a statute was passed in that: every person shall be pious and exercise religion publicly and privately on sunday. no work may be done or goods sold or else forfeit s. or the goods respectively. no one may travel or else forfeit - s. in a further statute of , because some ease to scrupulous consciences in the exercise of religion may be an effectual means to unite protestant subjects in interest and affection, protestant nonconformists who took the oaths (or declaration in the case of quakers) and a declaration that they were not catholic, did not adore the virgin mary or any saint, and did not go to mass were declared not liable for punishment in any ecclesiastical court by reason of their nonconformity to the church of england, except protestant dissenters meeting behind locked doors. but payment of tithes and performance of parish duties were still obligatory. non-conformist preachers had to subscribe to the tenets of belief listed in the first eighteen articles of religion, but were exempted from the articles on expounding inconsistencies in scripture, the traditions of the church, homilies, and consecration of bishops and ministers of the elizabethan statute and the statute on uniformity of prayers and sacraments of charles ii. quakers were active in the countryside. they were about one tenth of the population and did not believe in a state church. there were some quakers schools and some quaker workhouses to give work to the poor. for the reason that they met together in large numbers to the great endangering of public peace and safety and to the terror of the people, and because they had secret communications and separated themselves from the rest of the people and from the usual places of worship, a statute was passed in , that any quakers who assembled to the number of five or more under the pretense of unauthorized religious worship and any person maintaining that taking an oath before a magistrate was unlawful and contrary to the word of god or refusing to take a required oath was to forfeit pounds for the first offense or be imprisoned for months if he couldn't pay. for the second offense, the penalty was pounds or imprisonment for months with hard labor. the third offense required abjuring the realm or being transported to a plantation of the king beyond the seas. the policy of charles ii was to allow quakers to meet undisturbed, to keep their hats on before magistrates, and to not come to the parish church. but this policy was only partially adopted in the country. from , by statute, the quakers were allowed to affirm or declare instead of making the customary oath. many presbyterians became unitarians, who rejected the trinity of "father, son, and holy ghost" and doubted the divinity of jesus, but accepted revelation. this statute was then passed in : any person having been educated in or having at any time made profession of the christian religion who, by writing, printing, teaching, or advised speaking, denies the holy trinity, asserts that there is more than one god, or that the bible is not of divine authority, shall be disabled for any ecclesiastical, civil, or military office. the penalty for a second offense is being disabled from suing or pleading any action in any court, being guardian of any child, or executor or administrator of any estate, or receiving any legacy or deed of gift and imprisonment for three years without bail or mainprize. catholicism was always disfavored. catholic priests were executed with little evidence. at times, charles commuted the death penalty for them to banishment. sometimes there were effigies of the pope burned in the streets. such burnings were later banned. at times charles allowed catholics to attend mass. by statute of , all civil and military officers and king's officials must take the oaths of supremacy and allegiance and take the sacrament of the established church of england or be incapable of office. they also had to make a declaration that they believed that there is not any transubstantiation in the sacrament of the lord's supper, or in the elements of bread and wine, when they were consecrated. this is to prevent dangers from papists. as of , no one may be a member of parliament if he has refused to take the oaths of allegiance and supremacy and the declaration that they were not catholic, did not adore the virgin mary or any saint, and did not go to mass. papists were made to pay higher taxes. every temporal and spiritual person, corporation, and guild had to pay taxes to subsidize the king in the amount of s. d. for every pound's worth of personal property and money. but papists had to pay s. d. for such. persons and corporations having land worth at least s. yearly, had to pay s. for every pounds' worth. but papists and aliens had to pay s. for such. but charles' successor, king james ii was catholic and gave many offices to catholics. this prompted a reaction against papists and more statutes restricting them. after james ii was chased out of england, a statute of required suspected papists in london to make a declaration that they were not catholic, did not adore the virgin mary or any saint, did not go to mass, or else stay ten miles outside of london. excluded were tradesmen and manual workers, who had only to register. all papists had to forfeit their arms and any horse worth more than pounds. also, no king or queen or spouse of such could be a papist, but had to make the same declaration as members of parliament, and join in the communion of the established church of england. as of , a person who was serjeant at law, counsellor at law, barrister, advocate, attorney, solicitor, proctor, clerk, or notary had to take the oath of supremacy and allegiance. as of , papists who kept a school or tried to educate the young were threatened with perpetual imprisonment. also, popish parents were prohibited from forcing their children who were inclined towards protestantism to become catholic by refusing them suitable maintenance. as of , a reward of pounds was offered to any person who apprehended a popish bishop, priest, or jesuit saying mass. also, no papist was allowed to buy land. - judicial procedure - as of , no man could be held in prison but on a charge or conviction of crime or for debt. every prisoner on a criminal charge could demand as a right from the court of the king's bench the issue of a writ of "habeas corpus" which bound his gaoler to produce the prisoner and the warrant on which he was imprisoned for review as to legality. this forced trials to be speedy, which they had not hitherto been. now it was impossible for the crown to detain a person for political reasons in defiance of both parliament and the courts, as charles i had done. the writ was suspended in times of war and domestic unrest: , , . in , william penn was arrested for sedition for delivering a sermon in london, contrary to the statute that only the church of england could conduct meetings for worship. the jurors would not convict him, so were gaoled and fined by the justices. the jurors filed a writ of habeas corpus in the court of common pleas, which held in their favor. thereafter the english jury had full independence to decide to verdicts. by court decision of , jurors were held not to be responsible to the justice for their verdict. after , hearsay was inadmissible as evidence, which coke had recommended. the old system of original writs was abandoned, and the general concept or a wrong to person or property took its place. a person who was sergeant at law, counselor at law, barrister, advocate, attorney, solicitor, proctor, clerk, or notary in the courts had to take the required oaths of allegiance and supremacy. as of , persons outlawed could appear by attorney as well as in person to argue reversal of such outlawry, except in cases of treason and felony. as of , persons accused of high treason where there might be corruption of the blood or for misprison [concealing knowledge] of such treason had to be taken before a grand jury for indictment within three years of the offense. those indicted or outlawed for such were given a copy of the whole indictment, but not the names of witnesses, at least five days before trial in order to prepare their defense. they could have a copy of the panel of jurors at least two days before trial. they could be represented in their defense by not more than two counsel learned in the law and assigned by the court. their counsel had free access to them at all reasonable hours. they could make proof through lawful witnesses under oath. in a trial of commoners for their lives, a jury of twelve freeholders had to all agree on acquittal or conviction. in a trial of a peer, the others peers in parliament determined the outcome by a majority vote. jurors were required to have at least pounds income from freehold land or rents in fee, fee tail, or for life. this increase in the quality of the jury enabled it to better discern the issues in dispute. jury sympathy was determined by the sheriff who chose the jury. so if a sheriff was popularly elected, as in london, he chose jurors who favored individual and corporate liberty. if the king selected the sheriff, he chose tories, who supported the crown. issues of bastardy or lawfulness of marriage had to be tried by a jury. the civil suit of trespass on the case has now branched into assumpsit, trover, deceit, negligence, and libel and slander. the latter supplements bad words punished by the local courts and defamation punished by the church courts. trover becomes the normal mode of trying the title to moveable goods as the courts oblige the defendant to answer the charge of conversion without permitting him to dispute the loss and finding of the goods by the plaintiff. this is an example of the initiation of a suit by a writ for trespass on the case: the king to the sheriff &c. as in trespass to show: wherefore (e.g.:___) he fixed piles across the water of plim along which, between the humber and gaunt, there is a common passage for ships and boats, whereby a certain ship, with thirty quarters of malt of him the said a, was sunk under water, and twenty quarters of the malt of the price of one hundred shillings perished; and other wrongs &c. as in trespass. this is an example of a writ for trespass on the case in assumpsit: the king to the sheriff greeting &c. as in trespass to show: wherefore whereas he the said x undertook well and competently to cure the right eye of the said a, which was accidentally injured, for a certain sum of money beforehand received, he the same x so negligently and carelessly applied his cure to the said eye, that the said a by the fault of him the said x totally lost the sight of the said eye, to the damage of him the said a of twenty pounds, as he saith, and have there &c. wherefore whereas he the said x undertook to make and build three carriages for conveying victuals of him the said a to parts beyond the sea for a certain sum of money beforehand received, within a certain term between them agreed; he the said x did not take care to make and build the carriages aforesaid within the term aforesaid, by which he the said a hath wholly lost divers his goods and chattels, to the value of one hundred marks, which ought to have been conveyed in the carriages aforesaid, for want thereof to the great damage of him the said a as it is said: and have there &c. this is an example of a writ for case on indebitatus assumpsit: the king to the sheriff &c. as in trespass to show: for that, whereas the said x heretofore, to wit (date and place) was indebted to the said a in the sum of for divers goods wares and merchandises by the said a before that time sold and delivered to the said x at his special instance and request, and being so indebted, he the said x in consideration thereof afterwards to wit (date and place aforesaid) undertook and faithfully promised the said a to pay him the said sum of money when he the said x should be thereto afterwards requested. yet the said x, not regarding his said promise and undertaking but contriving and fraudulently intending craftily and subtly to deceive and defraud the said a in this behalf, hath not yet paid the said sum of money or any part thereof to the said a (although oftentimes afterwards requested). but the said x to pay the same or any part thereof hath hitherto wholly refused and still refuses, to the damage of the said a of ------ pounds as it is said. and have you there &c. this is an example of a writ for case for trover: the king to the sheriff greeting &c. as in trespass to show: for that, whereas the said a heretofore to wit [date and place] was lawfully possessed as of his own property, of certain goods and chattels to wit, twenty tables and twenty chairs of great value to wit of the value of ___ pounds of lawful money of great britain; and, being so possessed thereof he the said a afterwards, to wit (date and place aforesaid) casually lost the said goods and chattels out of his possession: and the same afterward, to wit (date and place aforesaid) came into the possession of the said x by finding; yet the said x well knowing the said goods and chattels to be the property of the said a and of right to belong and appertain to him, but, contriving and fraudulently intending craftily and subtly to deceive and defraud the said a in this behalf, hath not as yet delivered the said goods and chattels, or any part thereof, to the said a (although often requested so to do) but so to do hath hitherto wholly refused and still refuses; and afterwards to wit (date and place aforesaid) converted and disposed of the said goods and chattels to his the said x's own use, to the damage of the said a of ____ pounds as it is said; and have you there &c. the rigid writs with specific forms of action for common law cases started to fall into disuse. later, trespass on the case bifurcates into misdemeanor and the tort of trespass. persons in prison on suspicion of treason could not be released on bail as of . if one of several defendants of a case was acquitted, all defendants recovered their costs from the plaintiffs. a person found guilty of malicious prosecution recovered his costs from his accuser. mercantile cases were decided in light of mercantile custom rather than according to the strict rules of the common law. merchants and traders could settle their trade disputes by arbitration, which decision could be enforced by court order. after the restoration, all legal decisions of the commonwealth and protectorate were confirmed subject to a right of appeal. the star chamber was not restored, and parliament assumed its control of the press. the king's bench succeeded to most of the star chamber's jurisdiction. no longer could the privy council influence criminal cases and the general supervision of legal processes through the star chamber. the high commission court was not restored, but church courts were, but with depleted powers. they accepted subordination to the common law courts. because the church's administration was inefficient and corrupt and its punishments inadequate, they gradually lost their power to the common law justices and justices of the peace. they had virtually no authority over laymen. they could still punish heresy, but lost jurisdiction over the law of libel and slander, which then were transformed by the civil courts, and over prostitution and scandalous lewdness. local ordinances for suppression of brothels, which were run by madams, were founded on breach of the peace. in , the death sentence was taken away from the church courts. in , church sanctuary was abolished. the county courts faded into insignificance, as the justices of the peace took on more jurisdiction. in , new justices were issued patents with "at pleasure" instead of "during good behavior" describing their tenure. charles ii and james ii frequently dismissed justices not favorably disposed to the crown. in , they were to have fixed salaries instead of the profits of justice. by statute of , justices' commissions were to be made with an established salary determined by parliament and a tenure to last during good behavior. they could be removed only by the address of both houses of parliament. this gave them independence from the king. their tenure lasted for the life of the monarch. the chief justice could empower persons by commission to take affidavits from people in the country for court proceedings in westminster. judgments were docketed so they could easily be found e.g. by heirs, executors, administrators, purchasers, and mortgagees. court judgments and fines could be challenged for error only within twenty years. court decisions were still appealable to the house of lords. in , skinner v. east india company held that the house of lords could not exercise original jurisdiction in civil cases between commoners as it had claimed, but retained its appellate jurisdiction. in , the house of lords acquired the new judicial function of hearing appeals from the chancery court by virtue of the case of shirley vs. fagg. any gaol keeper allowing a prisoner to escape in return for money lost his office forever and had to forfeit pounds. the last burning of a woman as a penalty for an offense, which had been only occasional, was in . the last bill of attainder, which condemned a person to death, occurred in . the pillory was still in use. benefit of clergy was taken away from those who stole cloth or woolen manufactures from their drying racks or who embezzled military stores or ammunition worth at least s, or stole goods of over s. value from a dwelling house with a person therein put in fear, a dwelling house in daytime with a person therein, or by day or night a shop or warehouse. a statute of gave jurisdiction to naval courts-martial to decide cases at sea, e.g. insubordination; failure to fight the enemy, a pirate, or rebels; not assisting a friend, mutiny, drunkenness, creating a disturbance to protest the quality of the food, quarreling, sleeping on watch, sodomy, murder, robbery, theft, and misdemeanors. usually the penalty was to be determined by the courts-martial, but sometimes death was decreed. in the american colonies, judges were still appointed by the royal governors and paid by the local legislatures. they still served at the pleasure of the king. - - - chapter - - - - times: - - dress was plainer than before. gentlemen wore white linen shirts; waistcoats fitted at the waist and covering the trunk at least; long lawn ties wound around the throat and tied in front with the tails tucked in, knee-length coats that were wide in the skirts and in the sleeve cuffs and having large gold, silver, or bronze buttons which didn't reach to the buttonholes on the other side of the coat; knee breeches of cloth, knitted wool, thread, and silk; and silk stockings rolled up at the knee. some shoes had metal buckles. gold fobs with watches or seals hung from the breeches pocket. the clothes were made of silk, satin, or velvet and often in colors such as yellow, orange, scarlet, blue, violet, pink, and dull slate, and decorated with gold and silver trimmings. a slender sword was worn on the side. short wigs, often powdered with heavily scented white or gray wheat flour, with rolls over the ears with hair tied at the back, were worn for formal occasions. wigs were made of human, horse, goat, or cow hair, or mohair, worsted, silk, or wire. sometimes feathers and cork were also used. the hat was three-cornered, and usually of beaver or dark felt. there was often a rosette or such to show one's political opinion. there were new colors and cuts of dress for every season. by , wearing a sword was just a symbol of gentility. gentlemen often had valets to help them dress. ladies wore fitted full-length dresses held out by hoops with shoulders hidden, sometimes with a laced bodice with stays, and lace at the neck. the waistline fashion fluctuated high and low and in tightness. the dress could be brocade, satin, velvet, silk, etc. some put jewels in their hair and had high elaborate hats with wide brims tilted forward. hair was in ringlets at the side or dressed close to the head with a small top knot covered with a laced cap. they also wore wigs when dressing up, decorated with ribbons and artificial flowers. hooded cloaks were used outdoors and hoods were used for sun or wind. they carried leather purses with gloves at elbow length. both gentlemen and ladies wore cosmetics and face patches and used tooth powders, breath sweeteners, lip salves, and choice perfume. some had false teeth of bone or ivory wired into place. they both had accessories such as fans, handkerchiefs, head scratchers, and elaborately designed snuff boxes, patch boxes, and perfume containers. both men and women sniffed tobacco snuff but only men smoked. they walked with tall, elegant canes, and women also carried parasols. hats were made of wool and hair of beaver, rabbit, or camel. straw hats were worn in the summer. there were ready-made clothes and shoes, especially for children. night gowns and night caps were worn to bed. about , umbrellas for rain were introduced. they were made of waxed silk or taffeta. all but the poorest wore silk and lace. a prosperous countryman wore riding clothes consisting of breeches and boots, cut-away coat, and low top hat. the highest class were the peers and peeresses of the house of lords and their spouses and families. they were the nobility and held the high political offices, the high ranks in the army and navy, and owned large estates, usually scattered over the country. some were lawyers or merchants. there was much intermarriage among these families. indeed, many a noble family had salvaged its fortunes by marriage to a london merchant. the richest people in london were international merchants. these high class families lived in mansions with four or five living rooms, two to five acre gardens, and stables. the next class were the gentry. their family heads had land and were often justices of the peace. they were sometimes members of the house of commons. the oldest son took over from his father, while the other had to find a living such as in the church, law, medicine, or trade. they usually lived in mansions. the old yeoman class was disappearing due to their selling their land to larger landowners. farming on a large scale was more productive. the next class were the "middling sort". in this class were merchants, lawyers, substantial tenant farmers, smaller freeholders, millers, innkeepers, in town traders, shopkeepers (who now kept their wares inside and lived on the second floor), middlemen, clothiers, ironmongers, goldsmiths, grocers, linen drapers, apothecaries, school masters, clerks and civil servants, and customs and excise men. the town people lived in town houses of two stories plus an attic. the last class were the manual workers. these were wage earners or independent craftsmen, farriers, rural smiths (who shod horses and made stair rails, window-bars, torch extinguishers, lamp irons, bells, bolts, hinges, locks, and fire-grates), sawyers, carpenters, joiners, wheelwrights, nail makers, brick makers, plumbers (made lead cisterns, kitchen sinks, rainwater heads, drain pipes and lead flats for houses and ornaments), thatchers, spinners (silk, flax, hemp, wool, hair), dyers, wool combers, weavers, shoemakers, hat makers, belt and buckle makers, dressmakers, milliners (hats, caps, bonnets, cloaks, hoods, muffs), feather workers, button makers, lace makers, steel pin makers, brewers, cutlery makers, soap makers, candle makers (made from beeswax, tallow, mutton-fat, or beef-drippings), comb makers, barber/hairdressers (shaved, cut hair, made wigs and braids, and let blood), curriers, leather workers, carpet weavers, paper makers, tin-plate makers, printers, enamel workers, braziers and coppersmiths (made kettles, saucepans, canisters, milk pails, lanterns, candle boxes, candle sticks, and lamp lighters), basket makers, jewelers (made rings, perfumes, match boxes, buckles, and tops of canes), watch and clock makers, type founders, letter cutters, trunk and chest makers, cabinet makers, saddlers, coach body builders, coach carriage makers, shipwrights, rope makers, and sail makers. these workers typically worked in their stone or brick houses in a rural setting, with gardens, a cow, a horse, pigs, and poultry around them on - acres. they now ate wheaten bread instead of rye bread, much meat and cheese, and drank tea. these people also worked in the harvesting of grain. some consolidation of work was starting. for instance, the weaver, who had furnished himself with warp and weft, worked it up, and brought it to market himself was being displaced by weavers who worked under supervision for one merchant in a town on looms the merchant had acquired. many women and children were so employed. it was not unusual for a man to work hours a day for days a week. real wages were higher than at any time since the mid- s. the wage earners were well above the subsistence level as long as trade was good. working men could now afford leather shoes and white bread. but eventually, as the employer came to realize how dependent the weaver had become on him, wages tended to fall. in a gloucester weaver, with his wife to help him, could earn, when work was good, from s. to s. a week. a few years later, he could only earn about s. a woman spinner earned - d. a day in , but - d. in . in the same period, men's wages fell from d. to d. a day. only certain workers, whose special occupation needed greater skill, e.g. the wool-combers, whose wool was longer and of better quality than carded wool, and shearers, were better paid. in , wool combers made s. a week; their wage was about the same all over the country because they traveled form town to town in search of work and always supported each other. also in , newcastle miners earned s. a week, sheffield cutlers s. d. a week, a rotherham blacksmith s. a week, a furnace keeper at horsehay about s. a week, a staffordshire potter from - s., a witney blanket weaver or a wilton carpet weaver s. or more a week, a manchester cotton weaver from - s. a week, and a leeds cloth weaver about s. in this class also were ploughmen, cowmen, dairymaids of the bigger farms. they had cottages of wood, clay, and straw, with clay floors and low ceilings, and a divided ground floor. a few had homes built of stone, covered with slate or thatch. wages of industry were higher than those of agriculture. in , a day laborer earned - s. a week in winter and - s. in summer (without board or lodging). in the short harvest time, he could earn s. a week. lastly were the mass of the population of london: hordes of laborers who depended on casual employment and could be dismissed at will. about half the population had no resources but their labor, which was usually unskilled and lowly paid. in good times they had just enough to feed themselves. the gap between rich and poor became greater. marriage remained a main way to wealth. also, one trained in the law could aspire to have a successful career in high political office, which also brought wealth. but there was less social mobility than in the previous century and many landed families were consolidating their position. they expected their oldest son to take and preserve the family estate. industrialists who had made a fortune for example in steel, cotton, coal mining, porcelain, and merchants who wanted to turn themselves into landed gentlemen found it very difficult to buy such estates. old dissenter families, quakers in particular, who were highly esteemed as businessmen, as industrialists, and as model employers were excluded from the anglican landowning society. rich tradesmen, artists, actors, and writers found it difficult to buy substantial houses in the small market towns and countryside because of an entrenched hierarchical atmosphere there that didn't exist in london. the only gentlemen who were in household service were librarians, tutors, or chaplains. they ate with the family and did not consider themselves servants. servants were kept more at a distance. by the s the servant class was clearly defined. their quarters were moved to the basement of the house and they ate together in the kitchen. but some householders still had special occasions when everyone would eat together in the dining room, with the servants at one end of the table. in about one tenth of the population in london had servants. even bricklayers and milk sellers had a servant. most families had just one servant. most wives employed some other woman or child to help in washing and scouring or in the minding of the children. london had grown beyond the locations of its walls around the city. london stretched ten miles along the thames, and was three miles wide in the center. on the east of the city was the port and industry. the west side ended at hyde park and regent's park and was residential. in it was still possible to shoot woodcock in regent street. in , westminster bridge was opened. in , the city walls were taken down to ease congestion. the typical london house, usually brick, was on a rectangular plan and had a basement to utilize all the space possible. walls were now more covered with hung damask, brocade, silk, and wallpaper or plain paint rather than by wood wainscoting. there were pictures on them. on the first floor was a front hall or parlor and a back parlor. one of these parlor rooms was the most important room, where the family entertained or spent leisure time. in it were sofas, armchairs, and stools of mahogany or white gilded wood. they were upholstered with damask or needlework. imported mahogany was replacing the favorite walnut that had replaced oak. much wood was inlaid with a variety of other types of woods. there was also a carved tripod table, china table, card table, and perhaps bookcases and/or tea-table. furniture with original designs made by the cabinet-maker chippendale was available. his genius was in combining various motifs into one harmonious design. cabinet makers had to keep abreast of his standards and to imitate them to conform with their customers' orders. cabriole legs with claw and ball feet came into fashion with queen anne about . between windows were tall mirrors. there were pictures on the walls. from , glass chandeliers hung from the ceiling to reflect candlelight coming from standing candlesticks or glazed hanging lanterns with brass frames. the fireplace had an elaborate mantel. the fire was kept going all day. it was lit by a tender box, which was unreliable. an iron fireback was behind the fire. the firewood was placed on andirons. fire grates were used from about . at a corner of the building was added a closet. on the second floor was a dining room, continuation of the closet below, and a drawing room, dressing room, or bedroom, and perhaps a study or music room with harpsichord. the dining room had a fireplace, curtains over the windows looped up at the cornices, one or more mahogany tables, a set of mahogany chairs with leather or hair- cloth seats fixed with brass nails (perhaps with some sort of metal springing), two mahogany sideboards with marble tops, cupboards or shelves or cabinets with displays of china porcelain, a wine-cooler, a dumb-waiter, and a folding leather screen. the china, which was displayed, was mostly imported, but there was some english china. later, there was famous wedgwood stoneware and pottery with bright, unfading glaze, or with dull black and red surfaces, biscuit ware of pale green, blue or purple, upon which white designs stood out like cameos. they came from the pottery factory at staffordshire founded by potter josiah wedgwood in . there were silver and pewter plates and serving pieces, silver candlesticks, and silver knives, spoons, and two and three pronged forks, glass saltcellars from , and fingerbowls from which one rinsed one's mouth or cleaned one's fingers after dinner which were made of glass from about . on the third floor were bedrooms and a nursery. in the bedrooms, there was a high bed with curtains, canopies, piles of blankets and pillows, and steps up to it; wardrobe; chairs; a hand wash stand; chests of drawers; writing bureau; dressing table with a couple drawers and a mirror; swing standing mirror; tin rush candle canister; and night commode. children and servants slept on low wooden bedsteads. walls were stucco, a form of cement that could be sculpted, or paneled or hung with silk and printed paper. servants, such as the page and footmen, slept in the attic and perhaps in the kitchen or cellar. there was a wood staircase for the family and a back staircase for the servants. the floors and stairs were protected with carpeting. servants had no right to free time or to holidays. the kitchen was in the basement or in a covered shed in the back. it had an open fire and a tin oven. the cold water tap over the stone sink could supply cold water from a cistern in the basement or hand-pumped to a roof cistern through wooden pipes at very low pressure at stated hours for a fee. there was a wash shed in back. water pumped from the thames into underground pipes was thus distributed to householders three times a week. some water came from a well or spring, rain, and street water sellers. water carriers were still employed at set fees. water was kept in lead cisterns. the wealthy had basement cisterns filled by a commercial company. the free public conduits of water were out of use by . the pollution of the thames river grew, but it was still a salmon river. the front door of the house had two strong bolts on the inside and a heavy chain. the windows could be shuttered and barred. there were sash windows with cords and brass pulleys. at the back of the house was a garden and perhaps a coach house or stables. the latrine was usually not in the house, but somewhere in the back garden area. under it was a brick drain leading to a public sewer or to a cesspool. smelly gases arose from it. sometimes people gathered such waste up to sell to farmers returning home in an otherwise empty wagon. in , patented inside toilets began to be used. each stood in its own room. a watchmaker named alexander cummings patented in the water-closet, which had a stink trap u-bend behind which, after flushing, water resided and prevented the backflow of noxious sewer gas. its pans and overhead cisterns were made of pottery. they were supported by wood structures. there were better cements for building. chinese porcelain, embroidery, and lacquer work were popular. landscaping to reproduce an idealized country scene replaced formal gardens. furniture and landscaped gardens were often done in a chinese style. foreign trees were imported. many of the well-to-do now lived in districts without as well as within the city limits. many streets east of the city were named after the governing families whose estates were there. their mansions had interior columns, archways, marble halls and fireplaces, carving, gilding, rich colors, and high ornamented ceilings. they each had a picture gallery, a library, stables with coachmen, grooms, and stableboys, and a still-room for concocting liquors and cordials such as cherry brandy, sloe gin, and elderberry wine. medicine and scents were also developed in the still-room. hands were washed in bowls held up by wooden stands. there were built-in bathtubs, but they usually lacked hot and cold running water, so hot water usually had to carried up to them. in these mansions, there were many private parties and balls. the standard for politeness here was high and gentlemen were expected to keep their tempers. this came about because impoliteness could easily lead to a quarrel and then a duel. the pistol was replacing the sword as the weapon of choice for duels. good manners developed for all occasions, with much less swearing and less rudeness. by gentlemen's agreements, men did favors for each other without a monetary price, but with the expectancy of a favor in return. the love of one man for another was recognized as the highest and noblest of human passions. people of high social standing left their country estates to spend the winter season in their townhouses in london with its many recreations such as receptions, routs, levies, masquerades, balls, dinner parties, clubs, pleasure gardens, theaters, shops, shows, taverns, and chocolate and coffee houses. coffee houses provided turkish coffee, west indian sugar and cocoa, chinese tea, virginia tobacco, and newspapers. they were frequented by learned scholars and wits, dandies, politicians, and professional newsmongers. men of fashion often engaged in wagers and gambling at their clubs and coffee houses. there were wagers on such matters as the longevity of friends and prominent people, fertility of female friends, wartime actions, and political matters. carriage by sedan-chair was common. gentlemen often had valets. in , buckingham house was bought as a palace for the royal couple. people from different parts of london differed in ways of thinking, conversation, customs, manners, and interests. for instance there were sections where sailors lived, and where weavers, watchmakers, and cow keepers each lived and worked. there were many specialized craftsmen who worked with their own tools in their own shops or houses, for some superior who had contact with the market and who supervised the final processes of manufacture. these included the goldsmiths, upholsterers, coach makers, saddlers, and watchmakers, all of whom had many dependents. the watchmakers had specialists making wheels, pinions, springs, hands, dials, chains, keys, caps, and studs in their own houses. the type of industrial organization most common in london was that in which work was given out to be done in the homes of the workers: the putting out system. some industries, such as watchmaking, silk weaving, and shoemaking were on both a putting out system and a system of an apprenticeship to journeymen working on piece work. shoes were made to order and ready made. the customer was measured in a shop, the clicker cut out the upper leathers, which were given to the closer to be closed, and then to the maker for the sole and heel to be put on. another class of shoemaker worked alone or with an apprentice in a garret, cellar, or stall, using pieces of leather cut out for him by the currier or leather cutter. london industries included the making of bread, beer, spirits, and vinegar; sugar refining; tobacco refining and snuffmaking; spinning and/or weaving of woolens, worsteds, silk ribbons, tape, and cloth; and making printed calico, clothes, linens, laces, tassels, fancy embroidery, stays, stockings, hats, shoes, leather goods (boots, shoes, hats, gloves, harnesses, and saddles), jewelry, glass, candles, tapestry, musical instruments, cutlery, furniture, paint, varnish, paper, tools, swords, guns, heavy artillery, ships, sails, rope, carriages, precious and base metalwares such as brass and pewter ware, and printer's ink and glue; printing; and publishing. surgical instruments made included straight and curved knives and probes, lancets, scissors, spatulas, trepans (for cutting bone), and cupping cases. optical instruments made included eyeglasses, telescopes, and microscopes. in eyeglasses were held in place by frames that went over the ears, which replaced unreliable cords over the ears and leather straps tied behind one's head. also made were nautical instruments, quadrants, sundials, sectors, globes, scales, orrerys [model solar systems], and air pumps. in london, the old distinction between craftsmen and laborers was blurred by the existence of trades which employed workmen under a skilled foreman instead of journeymen who had served an apprenticeship. these trades were, on a large scale, new. among the most important of these trades were the distillers and brewers of liquors, the tobacconists and snuff makers, the sugar refiners and soap boilers, the vinegar makers, and makers of varnish, of glue, of printers' ink, and of colors. the latest chemical theories and the chemical explanation of dying brought about the invention of new colors and new processes in dying cloth. workers in these trades were considered as laborers, but their wages were high and their positions relatively secure. they learned their jobs by doing them. the older trades of a similar character, such as tallow melters and chandlers, wax chandlers, fellmongers, and the tanners, employed journeymen. there were buildings for boiling and distilling turpentine, for casting brass or iron, and for making glass for chemical works for sale. the skilled artisan who worked at home and either made goods for a master or sold to the trade verged into the shop keeping class. on the other hand, the lowest type of shopkeeper, the chandler, the dealer in old iron, the tripe shop, the milk retailer, the keeper of a cook shop or a green cellar belonged to the class of casual and unskilled labor. the lowly chimney sweep, paid d. a day, served an apprenticeship as a boy, and then was his own master. the watermen and lightermen, by virtue of their fellowship and their apprenticeship and often the ownership of a boat, belonged to the class of skilled laborers. craftsmen in the building trades and paviours had their laborers as smiths had their hammermen to do the heavy work at laborers' pay. the street ragpickers, the ballad sellers, and the match sellers belonged to the class of beggars. working women in london in were employed in domestic service: %, nursing and midwifery: %, cleaning and laundry: %, vitiating: %, shopkeeping: %, hawking: %, and textiles: %. those employed in domestic service were mostly young women who later married. some women were schoolteachers, innkeepers, or manufacturers, which were middle-class employments. many women in the realm engaged in a variety of occupations from fanmaking and hairdressing to catering, and, as widows, often carried on their husband's trade, including bookselling, hatmaking, building or ironmongery. although shops still had small frontages of about feet and the windows had small panes of bottle glass which partly obscured the view of the goods, there were magnificent shops with large windows displaying fine goods, bookshops, and print shops with prints of political satire with caricatures. the shops were generally open six days a week from a.m. to p.m., and years later to p.m. in josiah wedgwood opened a showroom in london for his high quality pottery from staffordshire. consumption was on a mass scale, many people buying what they wanted instead of just what they needed. there were circulating libraries, public concert halls, and professional boxing matches. at coffee houses, chocolate houses, and taverns, people played at dice and cards, gambled, talked politics and read daily newspapers, in which there was advertising, reports of marriages and deaths, grain prices, and book reviews. different professions and classes and groups, such as the whigs, the tories, classical scholars, scientists, clergymen, intellectuals, actors, writers, and journeymen of particular crafts, had their favorite meeting places. coffee houses reflected the character of their neighborhoods. they acted as postal centers, lost property offices, business addresses, physicians' consulting rooms, lawyers' and merchants' business transactions, matrimonial agencies, masonic lodges, auction rooms, and gambling dens. some retained a supply of prostitutes. many taverns had a rentable private room for the better-off to drink wine, have meals, meet friends, gamble, do business, and hold meetings of societies and clubs, especially political clubs. from this beginning sprang private clubs such as the blue stocking club in and the literary club in ; lloyd's for sale and insurance of ships in ; and the stock exchange in . the blue stocking club was established by women who organized conversational parties with guests of intellect and wit. there was opera, playhouses, concerts usually with georg handel's oratorios such as the messiah or the foreigners bach and haydn, tea-gardens, fire works, balls, masquerades, wax works, beer shops, and bawdy houses, except on sunday. there were straight plays, comic operas, and melodramas. three-dimensional sets replaced the two- dimensional backdrop. plays containing thinly veiled satires on politicians were becoming popular. some plays had crude and licentious material. theaters still shared a close association with brothels. unlicensed theaters were closed down by a statute of , but most came to acquire patronage to get a license. this shaped the development of drama in london for a century. the beggar's opera depicting an immoral society unable to master its bandits was written by john gay as a powerful attack on a government which most of london hated. with its many ballads it became very popular. one such ballad goes: "through all the employments of life each neighbor abuses his brother; whore and rogue they call husband and wife; all professions be-rogue one another. the priest calls the lawyer a cheat, the lawyer be-knaves the divine; and the statesman, because he's so great, thinks his trade as honest as mine." another is: "a fox may steal your hens, sir, a whore your health and pence, sir, your daughter rob your chest, sir, your wife may steal your rest, sir, a thief your goods and plate. but this is all but picking, with rest, pence, chest and chicken, it ever was decreed, sir, if lawyer's hand is fee'd, sir, he steals your whole estate." the thames was crowded with sailing boats and with a line of boats waiting to unload. foreign and native ships lined the river banks in rows. theft of cargo from docked ships was still a problem and pirates were still executed at low tide on gallows. londoners went to the bridges across the thames to breathe fresh air. london air was so smoky and polluted by coal-burning in kitchens and factories that it gave a cough to newcomers. the river was so polluted by the sewers by that all the swans and most of the fish had disappeared. a mansion house was built for the mayor in . the king's zoo had ten lions, one panther, two tigers, and four leopards. deer hunting in hyde park was now confined to its northwest corner, which was enclosed for the king, who occasionally hunted here. elsewhere in the park were laid out walks and fountains. gardens were now natural instead of formal. the streets were usually crowded with people and traffic. many people traveled by sedan chair. on the streets were barrows with goods such as lace, threads, fruits, and chickens; beggars, ballad singers, musicians, bands, street dancers, apple women, piemen, muffin men, fruit sellers, nut sellers, pudding sellers, milk maids selling milk from buckets, milk sold directly from the cow, vendors of asses' milk, hawkers, newspaper boys, scavengers with carts, postal collectors, lamplighters on their ladders, wenches, chimney sweeps, rat catchers, pick pockets, swaggering bravados, strolling strumpets, brawling watermen, card sharps, overdressed beaux, dancing dogs, and acrobatic monkeys. each trade had it own call. billingsgate open-air market was now exclusively for the sale of fish. small tradesmen such as dairymen, butchers, bakers, fishmongers, and chandlers delivered to regular customers food bought from distributing centers. workers by necessity lived near their place of work because there was no cheap transport and walking through the streets after dark was unpleasant and dangerous. hours of work for most craftsmen was from a.m. to p.m., six days a week. it was common for working class families in london to live in a single room of their house and rent the rest, furnished, to people of different degrees of prosperity and even of different social grades. servants and apprentices slept in the kitchen, the shop, or the garret. the very poor, such as casual laborers and street sellers, silk winders, charwomen, usually lived in damp cellars subject to floods from excessive rain, or in cold and windy garrets. tenancy was usually on a weekly basis because of the general uncertainty of life and trade. conditions were so cramped that cabinet makers made beds which masqueraded in the day time as tables, bureaus, cupboards, or bookcases. the very poor slept in common lodging houses, sleeping uncovered on the floor, twenty to a room. some poor families slept in small hovels made of mud and straw with their pigs, domestic fowl, dogs, and even asses and horses. homeless children slept on the streets. all classes lived so much at coffee houses, alehouses or clubs, which they often used as their addresses, that house room was a secondary consideration. there was an alehouse on almost every street in london to provide cheap food and beer, lodging, employment information, credit, newspapers, tobacco, and meeting places for tradesmen. some alehouses were recognized employment agencies for certain trades, such as the hatters, smiths, carpenters, weavers, boot and shoe makers, metal workers, bakers, tailors, plumbers, painter and glaziers, and bookbinders. they were often run by one of the trade, retired or otherwise. some alehouses catered to criminals and prostitutes. for cheap and simple eating there were chophouses, cookshops, and beef steak houses. there were about , english immigrants a year to london in the s. they were mostly young people. london needed many immigrants because of its high death rate. over twenty london people a week died from starvation alone; they were mostly women. only about one-fourth of london's population had been born in london. especially welcome were sturdy country people for heavy manual labor, the better educated boys from the north for shops and offices, and the honest country people, as contrasted with london's poor, for domestic service. girls mostly looked for domestic service, but were sometimes made the mistress of the housekeeper or steered into prostitution as soon as they entered the city. an ambitious young man would seek an apprentice job, work hard, flatter his master, and try to marry his master's daughter. it was easier to find a place to live in london than in the villages, though there was much overcrowding. many shopkeepers and workshop owners in london were involved in leasing, purchases, and contracts. queen anne was authorized by parliament to build about more churches in london and westminster and their suburbs, to be paid for by a coal tax on imports into the port of london. churches in london were to be rebuilt with money paid by funeral rates, rates for tolling the bells, and rates for the use of palls [altar cloths]. queen anne also appropriated all her revenues from the first fruits and tenths of ecclesiastical benefices: , pounds, to the clerical poor in . there were fewer quarrels among passersby on the london streets; men were less likely to wear their swords. but there were fist fights by common men which gathered crowds and occasioned betting. most crime was petty theft, but mobs and riots were frequent, as there were no police. watchmen and constables were often old and physically incapacitated. the watchmen were householders taking their turn. this duty of householders watching the streets had evolved from the ancient obligation of wards to provide men to guard the walls at night. but few wanted these jobs by which they could offend their neighbors. many citizens paid a rate to be excused from watch and ward duty. constables were often tavern keepers. many riots were started when penal laws against the catholics were repealed. they began with the cries of "no popery", but then targeted rich men's houses. mobs sacked and pillaged at will, burned houses, and flung open the prisons to increase their numbers. there were political riots between tories and whigs. working men still used violence to protect their livelihoods, such as destroying the lodgings and public houses of cheap immigrant labor such as the irish. the stocking-knitters destroyed stocking-knitting frames so that the number of apprentices who could be employed would not reach the limit specified by its guild's regulations. parish workhouse children also provided a cheap supply of labor which forced down the wages of the stocking knitters. in a statute banned wearing of calico after mobs tore calico garments off women. in , thousands marched on parliament and persuaded it to ban foreign silk imports. but when a mob destroyed engine-looms, the army was used against the rioters and two of them were hanged. this was the last major mob action. around the tower, there were still demagogues standing on upturned carts haranguing passing crowds. the tower area was a favorite place for demonstrators, and for unemployed and dissatisfied workmen, particularly coal heavers and underpaid seamen protesting their low pay and poor living conditions. there was more crime, especially at night, now with organized bands of men or gangs of children. bounty hunters made a lot of money catching offenders. in , to deter the frequent robberies, burglaries, and other felonies at night, many glass lamps were set up in places determined by the mayor. they had to burn from sunset to sunrise. in , a lighting rate was imposed by the city to pay for all night lighting all year by hired lamplighters. anyone breaking or damaging the lights of london would forfeit s. for the first offense, s. for the second offense, and pounds for the third offense. the aldermen had to contract to pay for lighting, trimming, snuffing, cleaning, supplying, maintaining, and repairing them. to pay for this system, citizens paid according to the amount of rent their holdings were worth. if they didn't pay, they could not vote. bad areas of thieves and prostitutes and the slums east of the city were gradually being replaced by warehouses and offices. in , london bridge was widened and the houses were cleared off it. there were lanes for carriages in the middle and for pedestrians on each side. its arches were also widened to make the passage of vessels underneath easier. lights were put on it to be lit all night. and watchmen were put on it for protection and safety of passengers. (this was paid for by tolls of / d. per horse, d. per carriage, and d.- s. for vessels with goods passing underneath.) about , a body of enterprising citizens secured private acts of parliament which allowed them to levy a house tax in return for providing paving and lighting, which then greatly improved, as did sanitation. sidewalks were raised between the street proper and the buildings, replacing the protective posts which had lined the roads. flat stones were put in place of the pebbles on the roadway. signs hanging in from of stores, which had blocked the sunlight, were placed flat in front of the buildings. this also made the streets more airy. the buildings were given numbered addresses and street names were placed on buildings. loading and unloading could not exceed one hour. nuisances like empty carts could be removed. cranes used in warehouses had to be stored in unobtrusive places. one who drove on the foot pavement had to forfeit s. for the first offense, s. for the second offense, and s. for other offenses. wells were dug and pumps erected for watering the streets. pavements were to be repaired on complaint. dust boxes and dust holes were built and had to be used for refuse awaiting pickup by the raker or else forfeit s. in , the system of having every man responsible for cleaning the street in front of his door, which occasioned piles of rubbish in the central troughs of the streets waiting for the next rain to be washed away, was abandoned. but house occupants were required to keep the sidewalk in front of their house clean or else forfeit s. if one broke a light, he had to pay damages if it was accidental, and also s. if willful. wards were to choose substantial inhabitants to be collectors for a year at a time to collect the rates, which were not to exceed s. d. per pound of rents. if one declined to be a collector, he had to forfeit pounds. there were special stands for hackney coaches, which were s. d. for a day of twelve hours. their regulations were extended to sundays. in london, the normal system of building was for builders to buy up leases, put up a new building, and sell it before the lease became due. the rules for party walls between buildings were made more stringent: / bricks thick in cellar, bricks thick to the garret floor, and / bricks above the roofs or gutters. they had to be made of brick or stone. in , rain water from roofs had to be carried to the streets in lead or other pipes that were affixed against the side of the building. in , iron, copper, or other pipe or funnel for conveying smoke or steam were not to be near any inside timber, or in front of most any building or next to any public street, square, or court. in the s firefighters had to fill a tank on a wagon by hand with buckets. on top of the tank was a hose that could spray water high. london parishes were authorized to place upon the water pipes underground stop-blocks of wood with a plug and firecocks to go into such pipe at various distances so that there would be no loss in time in digging down to the pipes to get water to fight fires. parishes were required to keep at known places, ladders and a large engine and a hand engine to throw up water to extinguish fires including one leather hose with socket fitting the plug or firecock, so that buckets would not be needed. the sun insurance company was incorporated for fire insurance in . insurance offices were authorized to employ watermen with poles, hooks, and hatchets to be always ready at a call to extinguish fires. no more than sacks of meal, quarters of malt, bricks, or chalder of coal per load on wagons or carts with wheels bound with [narrow] iron tire are allowed within ten miles of london or westminster, or else forfeit one horse. this is to prevent decay of the roads. for every wagon and cart in london, there must be a person on foot to guide it to prevent the maiming, wounding, and killing of people, especially the old and children, when drivers ride on their wagons and carts. later, it was required that carts must display the name of the owner and be registered. still later, there was a penalty of s. for not having a person on foot to guide any cart. later still, in , if a new owner of a cart did not put his name thereon, he had to forfeit s., and the cart and horse could be seized and sold to pay the forfeiture. persons willfully obstructing passage on streets with empty carts or barrels or pipes shall forfeit - s. or do hard labor up to one month. the justices of london assessed rates and made regulations for carriage of goods. certain houses and buildings were bought and pulled down to widen several streets, lanes, and passages. in , persons driving cattle in london, whose negligence or improper treatment of such cattle cause them to do mischief shall forfeit - s. or else go to a house of correction for up to one month or be publicly whipped. the roads around london were neither very attractive nor very safe. along them was land covered with water from drains and refuse and dung heaps. hogs were kept in large numbers on the outskirts and fed on the garbage of the town. smoking brick kilns surrounded a great part of london. in the brickyards vagrants lived and slept, cooking their food at the kilns. queen anne's drinking of tea made it a popular drink, but it was still expensive. this habit improved health because to make tea, the water had to be boiled before drunk. breakfast included tea and bread and butter, and later toast with melted butter. the rich also had coffee and chocolate. the morning newspaper was often read at breakfast. the chief dinner dishes were roast beef, roast mutton, boiled beef or pork, with puddings and vegetables. roast meat was still the basic diet of town and country gentlemen. there were also fowls, tripes, rabbits, hares, pigeons, and venison. many elaborate sauces were made. the national dish was the pudding, a compound of steak, kidney, larks, and oyster. drinks included ginger beer, lemonade, barley water, coffee, chocolate, tea, and foreign wine. port from portugal was introduced about , and rum about . rum, made from sugar, first became popular as a medicine, well-whisked with butter. beer was drunk by the poorer and middle classes. the poor could afford very little meat now, unlike years ago. their standard fare was cheese, bread, and tea, the latter of which was usually from used tea leaves bought from rich houses. households were smaller; a peer had a household of about - . the proportion of women grew to one-third to one-half. dinner guests sat and were served in order of rank, with gentlemen on one side of the table and ladies on the other. later, a fashion came in to sit alternately by sex. dinner was in several courses and lasted a few hours. toasts might be made. it was bad manners to put one's elbows on the table, to sniff the food, to eat too slowly or too quickly, to scratch, spit, or blow one's nose at the table, or to pick one's teeth with a toothpick before the dishes were removed. after dinner, the men drank, smoked, and talked at the table. there was a chamber pot under the sideboard for their use. politics was a popular subject. the women talked together in the drawing room. later, the men joined the women for tea and coffee. the evening often finished with card games, reading newspapers, verse-making, fortune-telling, walks in the garden, impromptu dancing, perhaps gambling, and supper. the nobility and gentry became more mobile and now mixed together at parties. at these afternoon parties, there were a variety of simultaneous activities, instead of everyone participating in the same activities together as a group. guests could choose to engage in conversation, news, cards, tea-drinking, music, dancing, and even go into supper at different times. sometimes a man other than her husband escorted a lady to a party. having lovers outside marriage was socially accepted if discrete. single women were discouraged from thinking of their independent status as desirable. their single status was to be regarded as unfortunate. weddings were taking place in public in church instead of privately. brides wore a white silk or satin dress with a train. over one third of brides who were capable of having children were already pregnant when they married. in a marriage statute required licenses to marry, the consent of parents or guardians for minors to marry, the calling of banns [advance announcement so that anyone could give a reason why the marriage should not take place], and four weeks residence in the parish where the license was given by bishop or other authority. these requirements addressed the problems of the kidnapping of heiresses, prostitutes trapping unwary youths after getting them drunk, and priests performing marriages clandestinely and not in church, which required banns. two witnesses to the marriage were required to sign a certificate of marriage, which was then to be registered in the parish books. manufactured goods relieved ladies from baking of bread, brewing, and spinning. so they often visited with friends, wrote letters, embroidered, and supervised the servants. funerals ceremonies started with socializing at the house with refreshments, then going in a procession to the church for burial, and finally returning to the house for more socializing. it was possible for a woman-covert to be seized of land in fee simple or in tail general or special to her separate use, free from control or intermeddling of her husband. houses were warmed in winter by burning coal. furniture was still sparse. moderate homes had tent-beds in use, with which cloth was hung on all four sides of the bed from a light iron framework above the bed. the beds were warmed with a warming pan heated in a fire before use. there were often bed bugs and fleas. everyone wore nightcaps to bed. pewter tableware was used, but the poor used tinware instead. copper, brass, and iron pots and pans were increasingly common. most towns had a regular market once or twice a week. in them, street cleaning was still a responsibility of individual householders. water was still obtained from wells and pumps. there was no municipal government as such. public works were done by special commissions set up for particular purposes, such as lighting, cleaning and paving the streets, night watchmen, traffic regulation, removing nuisances, and improving local amenities. large towns had hospitals for the poor. in the larger manufacturing towns, there were literary and philosophical societies for debates and discussions. these put together libraries for use of their members. also in these large towns, there were booksellers' shops, printing houses, weekly newspapers, playhouses, concerts, and horseracing courses, the latter of which was mostly patronized by gentlemen. some private citizens of various towns followed the example of london and obtained from parliament the right to levy a house rate for paving and lighting. physicians and lawyers lived in two-story brick mansions with attics and sash windows that could be lifted up and down with the help of a pulley. they had rectangular wood panes each with a sheet of glass cut from a circle of blown glass. the old blown glass was not regular, but had a wrinkled appearance. the center of each pane of glass was thicker with a knot in the middle left from the blow pipe. in front of the house were railings which supported two lanterns at the doorway. towns tended to be known for certain specialties, such as seaside holiday resorts, spas like bath, cathedral towns, fashionable shopping for gentry, and towns with certain industries like glass and china manufacture, pinmaking, pottery, tanning, manufacture of linen, silk, cotton, and the knitting trade. certain towns were famous for certain varieties of wool cloth. before , a town with more than , inhabitants was considered a large town. shop keeping was supplanting fairs and markets. certain industries were done on a large scale and required workers to be at the same site, e.g. brewing and distilling; building ships; printing fustians; making paper, soap (from animal fat) or candles; coal mining, iron production, mining and smelting of tin and copper, refining of salt, and digging of clay. certain other industries also required some kind of power or team work for their production, e.g. refining sugar; finishing cloth; making bricks; glassmaking; manufacture of ropes and sails, and processing of copper and brass into rods and sheets. often the manufacturer's house was surrounded by the many cottages of his workers. there the wife and children usually were busy carding and spinning. putting out work and subcontracting were widespread and created many small-scale capitalists. workers' hours were typically a.m. to p.m. drovers bought cattle in the countryside, drove them to big towns, and sold them to fattening graziers or fatted them themselves. then they were driven into town and sold to the wholesale butcher, who sold the carcass to the retail butcher, the hides to the tanner, and the bones to the glue maker. flocks of geese were also driven into towns, after their feet were given a protective covering of tar. there were also middlemen wholesalers for cheese, butter, cloth, and iron. there was a rage of distemper among the cattle so serious that to prevent its spread, the king was authorized by parliament to make regulations for prohibiting the removal or sale of cattle and for the burial of distempered cattle. later, the king was authorized to prohibit the killing of cow calves. no one was to sell any ox, bull, cow, calf, steer, or heifer until he had possession of such for forty days or else forfeit ten pounds, later, the king was authorized to regulate the movement of cattle from one place to another. the main industry of the country was still agriculture. in the countryside, about half the arable land was under the open field system, in which land was cultivated in common. enclosures of land were still taking place. the enclosures were now done by statutory commissions to ensure equitable allotments. agricultural improvements came first to enclosed land, which comprised about half of the agricultural land. in the , jethro tull published a book about his invention of the seed-drill to first pulverize the soil for cultivation without manure and then to deposit seed at a uniform depth in regulated quantities and in rows instead of being thrown haphazardly. also explained was the horse-hoe to stir the soil about the roots of the plants to preserve moisture, promote aeration, admit warmth, and destroy weeds. there were more horses than oxen in use now in the fields. the horse-hoe was first used by large independent farmers on enclosed land. also invented was a threshing machine with a set of sticks to replace hand threshing with flails. under-drainage as well as irrigation was practiced. lord townshend alternated turnips, grasses, and grain in his fields, and thus provided winter food for his cattle. the two-field crop rotation with fallow periods was often displaced by the three-field system rotating grain crops, legumes, and fallowness. independent farming gave rise to the improvement of breeds of livestock by selective breeding. enclosed land produced bushels of grain compared to bushels for common field land. it produced pounds of sheep fleece compared to / pounds for common field land. overall, soils were improved by being treated with clay, chalk, or lime. artificial pasture was extended and there was increased use of clover, sainfoin, and rye-grass. grain productivity was four times that of . a fatted ox was pounds compared to the former pounds which it weighed from the s to the s. the fleece of sheep increased fourfold. by statute of , persons having rights of common in certain land may, by the major part in number and in value of each's tenement, enclose such land for planting and growth of timber or underwood. every village had a smith, carpenter, and miller. the larger villages also had a potter, a turner, a malster, a weaver, a tanner, and perhaps a mercer or grocer middleman. wheelwrights made ploughs, harrows, carts, and wagons. ploughs had one, two, or no wheels. poor farming families took up extra work in the villages such as making gloves, knitting stockings, or spinning yarn. craftsmen still helped farmers at harvest time. much of the rural population was now dispersed over the countryside instead of being concentrated in villages because so many small holders had sold out due to enclosures of farm land, especially of common land and waste land. the rural working class lived in two room cottages, with low ceilings, small windows, and an earth floor. patience was required for those willing to wait for an existing cottage in a village to be vacated. most laborers did not marry unless and until they found a cottage. ancient custom that a person could build a home for himself on waste land if he did it in one night was ceasing to be respected. farmers usually preferred employing day-laborers than keeping servants. there were many migrant workers, mainly from ireland, for the busy summer haymaking and harvesting. the children of laborers and of small farmers had little schooling because they were needed for work. they scared the birds, weeded the fields, picked the stones, tended the poultry, set beans, combed the wool, and collected the rushes and dipped them in the tallow [sheep fat]. farm people relied on well water or rain water collected in lead cisterns. a farmhouse fireplace had pots hung from iron rods. saucepans sat on iron stands, which were stored above the mantel when not in use. spits were rotated by pulleys powered by the upward current of hot air or by a mechanical device. bacon was smoked in the chimney accessible by a staircase or upper floor. there still existed customary freeholders, who owned their land subject to certain customary obligations to the lord of a manor. the people displaced by enclosure became laborers dependent on wages or paupers. their discontent was expressed in this poem: "they hang the man and flog the woman that steals a goose from off the common but leave the greater criminal loose that steals the common from the goose." eventually there was some relief given to the poor workers. by statute of , wastes, commons, and fields having several owners with different interests may by three-quarters vote in number and in value of the occupiers cultivate such for up to six years. however, cottagers and those with certain sheep walks, or cattle pasture, may not be excluded from their rights of common. by statute of , the elizabethan statute restricting locations where cottages could be erected and their inhabitants was repealed because the industrious poor were under great difficulties to procure habitations. land could be rented out at ten times the original value. land was typically rented out for , , or years. great fortunes were made by large landowners who built grand country estates. the manufacturers and merchants made much money, but agriculture was still the basis of the national wealth. as the population grew, the number of people in the manufacturing classes was almost that of the agriculturalists, but they had at least twice the income of the agriculturalists. the greatest industry after agriculture was cloth. most of this activity took places in the homes, but families could earn more if each family member was willing to exchange the informality of domestic work for the long hours and harsh discipline of the factory or workshop. more wool was made into cloth in the country. dyed and finished wool cloth and less raw wool and unfinished broadcloth, was exported. bleaching was done by protracted washing and open-air drying in "bleach fields". there were great advances in the technology of making cloth. thomas lombe, the son of a weaver, became a mercer and merchant in london. he went to italy to discover their secret in manufacturing silk so inexpensively. he not only found his way in to see their silk machines, but made some drawings and sent them to england hidden in pieces of silk. he got a patent in and he and his brother set up a mill using water power to twist together the silk fibers from the cocoons into thread [thrown silk] in . his factory was five hundred feet long and about five stories high. one water wheel worked the vast number of parts on the machines. the machines inside were very tall, cylindrical in shape, and rotated on vertical axes. several rows of bobbins, set on the circumference, received the threads, and by a rapid rotary movement gave them the necessary twist. at the top the thrown silk was automatically wound on a winder, all ready to be made into hanks for sale. the workman's chief task was to reknot the threads whenever they broke. each man was in charge of sixty threads. there were three hundred workmen. lombe made a fortune of , pounds and was knighted and made an alderman of london. after his patent expired in , his mill became the prototype for later cotton and wool spinning mills in the later s. there were many woolen manufacture towns. clothiers might employ up to three thousand workers. at these, the spinning was done by unskilled labor, especially women and children in villages and towns. weaving, wool combing, and carding were skilled occupations. in , clockmaker and weaver john kay invented a flying shuttle for weaving. it was fitted with small wheels and set in a kind of wooden groove. on either side there were two wooden hammers hung on horizontal rods to give the shuttle and to and fro action. the two hammers were bound together by two strings attached to a single handle, so that with one hand the shuttle could be driven either way. with a sharp tap by the weaver, first one and then the other hammer moved on its rod. it hit the shuttle, which slid along its groove. at the end of each rod there was a spring to stop the hammer and replace it in position. it doubled the weavers' output. now the broadest cloth could be woven by one man instead of two. this shuttle was used in a machine for cotton. but the manufacturers who used the flying shuttle combined together and refused to pay royalties to kay, who was ruined by legal expenses. now the price of thread rose because of increased demand for it. the weavers, who had to pay the spinners, then found it hard to make a living. but the process of spinning was soon to catch up. in , john wyatt, a ship's carpenter who also invented the harpoon shot from a gun, patented a spinning machine whereby carded wool or cotton was joined together to make a long and narrow mass. one end of this mass was drawn in between a pair of rotating rollers, of which one surface was smooth and the other rough, indented, or covered with leather, cloth, shagg, hair, brushes, or points of metal. from here, the mass went between another set of rollers, which were moving faster than the first pair. this stretched the mass and drew it into any degree of fineness of thread by adjusting the speed of the second pair of rollers. then the thread went by a flier, which twisted it. after this the thread was wound off onto spindles or bobbins, whose rotation was regulated by the faster pair of rollers. or the mass could be drawn by rotating spindles directly from one pair of rollers. this machine was worked by two donkeys and was tended by ten female workers. because of bankruptcy in , the invention was sold to edward cave, the editor of "gentleman's magazine". he set up a workshop with five machines, each fitted with fifty spindles and worked by water wheels. carding was done by cylindrical carding machines invented by lewis paul. in , the plant was bought by carpenter and weaver james hargreaves. he was watching his wife spin when the spinning wheel tipped over onto its side. it continued to revolve, while the thread, held between two fingers, seemed to be spinning itself, even though the spindle was in a vertical instead of a horizontal position. it occurred to him that a large number of vertical spindles arranged side by side could be turned by the same wheel and that, therefore, many threads could be spun at once. he named his machine the "the jenny" after his wife. this "spinning jenny" could spin a hundred threads at a time. he patented it about . the machine consisted of a rectangular frame on four legs. at one end was a row of vertical spindles. across the frame were two parallel wooden rails, lying close together, which were mounted on a sort of carriage and slid backwards and forwards as desired. the cotton, which had been previously carded, stretched, and twisted passed between the two rails and then was wound on spindles. with one hand the spinner worked the carriage backwards and forwards, and with the other he turned the handle which worked the spindles. in this way, the thread was drawn and twisted at the same time. the jenny did the work of about spinning wheels. no longer did it take ten spinners to keep one weaver busy. but manufacturers refused to pay him royalties for his invention. he was offered , pounds for his rights in the jenny, but refused it. the courts held that the model of his jenny had been used in industry before it was patented and any rights he may have had were declared to have lapsed. nevertheless, he made over , pounds. the spinning jenny was used in many homes. richard arkwright came from a poor family and was taught to read by an uncle. he became a barber and made wigs. he taught himself crafts necessary to invent and patent in a spinning frame worked by a water wheel, which he called a" water frame". he strengthened cotton thread by adding rollers to the spinning process which were able to strengthen the cotton thread and make it of even thickness so that it could be used instead of costly linen as the warp. with capital from two rich hosiers, he set up a workshop next to a swift and powerful river running down a narrow gorge. then he turned his attention to weaving this thread with multiple spinning wheels in the first practical cotton mill factory. in , he set up weaving workshops making pure cotton calicoes which were as good as indian calicoes. he confronted the problem of a statute of which proscribed wearing or using printed, painted, stained or dyed calicoes e.g. in apparel, bed, chair, cushion, window curtain, and furniture, except those dyed all in blue, or else forfeit pounds by a seller, pounds by a wearer, and pounds by other users. the purpose was to provide wool-working jobs to the poor, whose numbers had been increasing excessively because of lack of work. arkwright argued that the statute should not include printed or painted cloth made in great britain in its ancient tradition of fustians with an all linen warp (for strength) and a cotton weft (for fineness). this statute was so "clarified" in . when wool-weavers had expressed their opposition to imported printed cottons and calicoes by tearing them off people, a statute of provided that any one who willfully and maliciously assaulted a person in the public streets or highways with an intent to tear, spoil, cut, burn, or deface the garments or clothes of such person and carried this out was guilty of felony punishable by transportation for seven years. the prohibition against the manufacture and wearing and using of pure cotton fabrics came to an end in on arguments of arkwright made to parliament that his pure cottons would bleach, print, wash and wear better than fustians. this was the first all-cotton cloth made in england. in , arkwright added machines to do work prefatory to spinning. raw cotton was first fed by a sloping hose to a feeder that was perpetually revolving. from here it went a carding machine of three rollers of different diameters covered with bent metal teeth. the first, with teeth bent in the direction of its revolution, caught up the cotton fibers. the second, revolving in the same direction but much faster, carded the fibers into the requisite fineness by contact with the third, whose teeth and motion were in the opposite direction. next, a crank and comb detached the carded cotton so that it came off as a continuous ribbon. then the ribbon went into a revolving cone, which twisted it on itself. eventually arkwright became rich from his creation of the modern factory, which was widely imitated. he established discipline in his mills and he made his presence felt everywhere there, watching his men and obtaining from them the steadiest and most careful work. he provided housing and services to attract workers. after cotton, the inventions of the spinning jenny and the water- powered frame were applied to wool. silk and cotton manufacture led the way in using new machinery because they were recently imported industries so not bound down by tradition and legal restraint. yarn production so improved that weavers became very prosperous. cards with metal teeth were challenging the use of wood and horn cards with thistles on them in carding wool. merchants who traveled all over the world and saw new selling opportunities and therefore kept encouraging the manufacturers to increase their production and improve their methods. factory owners united to present suggestions to parliament. manufacturing broke loose from traditional confines in several ways. to avoid the monopolistic confines of chartered towns, many entrepreneurs set up new industries in birmingham or manchester, which grew enormously. manchester had no municipal corporation and was still under the jurisdiction of a manor court. it sent no representative to the house of commons. all over the country the justices of the peace had largely ceased regulating wages, especially in the newer industries such as cotton, where apprenticeship was optional. apprenticeship lapsed in many industries, excepting the older crafts. several legal decisions had declared seven years practice of a trade as good as an apprenticeship. apprentices still lived in their masters' houses and were still treated as family members. the regulations of the cutlers' company remained in force as its masters used their great manual skill to make cutlery in their own homes with the help of their children and apprentices. trades in some towns which had guild regulations that had the force of law hung on to their customs with difficulty. although there were few large factories in the country under effective management of a capitalist, trade unionism was beginning as two distinct classes of men were being formed in factories. the factory owner was so high above his workmen that he found himself on the same level as other capitalists, the banker, who gave him credit, and the merchant, who gave him customers. journeymen in factories could no longer aspire to become masters of their trade and no longer socialized with their employers. hard and fast rules replaced the freedom of the small workshops. each worker had his allotted place and his strictly defined and invariable duty. everyone had to work, steadily and without stopping, under the vigilant eye of a foreman who secured obedience by means of fines, physical means, or dismissals. work started, meals were eaten, and work stopped at fixed hours, signaled by the ringing of a bell. factory hours were typically fourteen hours or more. organized resistance, as usual, began not with those most ill-treated, but with those men who had some bargaining power through their skills. wool-combers, who worked next to a charcoal stove where they heated the teeth of the comb, were the most skilled of the cloth industry were hard to replace. since they were nomadic, they quickly organized nation-wide. they agreed that if any employer hired a comber not in their organization, none of them would work for him. they also would beat up and destroy the comb-pot of the outsider. in and , the tiverton wool-combers objected to the import of combed wool from ireland by burning irish wool in clothiers' stores and attacking several houses. they had strike funds and went on strike in . their bloody brawls caused the military to intervene. then many of them left town in a body, harming the local industry. the earnings of wool-combers was high, reaching from s. to s. a week in , the highest rate of a weaver. in , the colchester weavers accused their employers of taking on too many apprentices. when the weavers organized and sought to regulate the weaving trade, a statute was passed in making their combinations void. strike offenses such as housebreaking and destruction of goods or personal threats had penalties of transportation for seven years. still in , the gloucester weavers protested against men being employed who had not served their apprenticeship. when the journeymen tailors in and around london organized, a statute made their agreements entering into combinations to advance their wages to unreasonable prices and to lessen their usual hours of work, illegal and void, because this had encouraged idleness and increased the number of poor. tailors' wages are not to exceed s. per day and their hours of work are to be a.m. to p.m. for the next three months, and s. d. per day for the rest of the year. a master tailor paying more shall forfeit pounds. a journeyman receiving more shall be sent to the house of correction for months. justices of the peace may still alter these wages and hours depending on local scarcity or plenty. despite this statute, the journeymen tailors complained to parliament of their low wages and lack of work; their masters called them to work only about half the year. there was much seasonal fluctuation in their trade as there was in all trades. the slack period for the tailors was the winter, when the people of fashion retired to their country estates. after their complaint, their wages then rose from s. d. per day in , to s. d.- s. in , to s.- s. d. in , to s. d.- s. d. in , to up to s. / d. in , and to s. in . foremen were excluded from wage control. when they complained of their long hours, which were two hours longer than the a.m. to p.m. of most handicraft trades, their hours were reduced in by one hour to a.m. to p.m. and their pay was set at d. per hour for overtime work at night during periods of general mourning, e.g. mourning for a deceased courtier. their work hours were lowered another hour to a.m. to p.m. in . the stocking frame-knitters guild, which had been chartered in , went on strike to protest the use of workhouse children as an abuse of apprenticeship which lowered their wages. they broke many of their frames, which belonged to their employers, to limit their number. in , combinations to advance wages, decrease hours of work, or regulate prices were declared void for journeymen dyers, journeyman hot pressers, all wool workers, brickmakers and tilemakers, journeymen servants, workmen, laborers, felt and hat makers, and silk, linen, cotton, iron, leather, and fur workers in and around london. the penalty was prison or hard labor at a house of correction for three months without bail. in , justices of the peace were to determine the rates of wages of wool workers according to numbers of yards. but this was repealed the next year to prevent combinations of workers. wage agreements between clothiers and weavers were declared binding. clothiers not paying wages within two days of delivery of work were to forfeit s. in the silk weavers in east london drew up a scale of wages, and upon its being rejected, of them broke their tools, destroyed the materials, and left their workshops. a battalion of guards had to take possession of the area. in , the silk weavers marched on westminster to stop the import of french silks. in , the weavers rebelled against a d. per yard reduction in their wages, filling the streets in riotous crowds and pillaging houses. after the garrison of the tower came, the workmen resisted with cudgels and cutlasses, resulting in deaths and woundings. the throwsters [those who pulled the silk fibers from the cocoons of the silk worms and twisted them together to make a thread] and the handkerchief weavers also became discontent. a battle between soldiers and silk weavers at their meeting place resulted in several men on both sides being killed. in , wages and prices for the work of journeymen silk weavers in and around london were designated to be regulated by the mayor and justices of the peace. foremen were excluded. no silk weaver was to more than two apprentices or else forfeit pounds. journeymen weavers entering into combinations shall forfeit s. this statute satisfied the weavers, but they formed a union to ensure that it was followed. in , , and , there were strikes which stopped the work of the coal industry and harbor at newcastle for weeks. in , the keelmen formed a combination to force their employers to use the official measure fixed by statute for the measurement of loads of coals. the book "consideration upon the east-india trade" dating from advocated free foreign trade. it argued that the import of goods from india not only benefited the consumer but also the nation, because it was a waste of labor to use it in producing goods which could be bought cheap abroad. this labor could be better put to use in new industries, at easily learned plain work. also the low cost of imported goods would motivate the invention of machines in the nation which would be even more efficient in manufacturing these goods. but english manufacturers were still suspicious of free trade. making beer and distilling gin from barley were widespread. the pastimes of gambling and drinking were popular with all classes. in the trades, this was promoted by the uncertainties of life and work and a general sense of instability. many london tradesmen started their day with a breakfast of beer, bread, and cheese, the traditional breakfast of countrymen. gambling and dissipation reduced some london men with good businesses to destitution, the work house, or street begging. drunken gentlemen played pranks such as imitating a woman in distress or throwing a person in a horse trough. some innkeepers had "straw houses" where customers who were so drunk they were unable to walk home could sleep in fresh straw. a person could get drunk for a few pence. gambling with cards was a popular pastime after dinner. cricket matches were played by all classes instead of just by humbler people; there were county cricket matches. gentlemen often took their coachmen with them to public events such as cricket matches. tennis was a sport of the wealthy classes. billiards, chess, and games with cards or dice were played, especially in alehouses. there was horse racing on any open ground to which people brought their horses to race. jockeys tried to unseat each other. hunting of rabbits and then foxes replaced deer hunting. bird and duck hunting was usually with flint lock guns instead of hawks, as the hedges provided cover from hawks. there was fishing with line, hook, and bait. watching the hanging of felons, about a year in london, was popular, as was going to bedlam to watch for a fee the insane being flogged. people went to the tower to try to get a glance at a famous prisoner looking through a window or taking a walk along the battlements. besides the grand pleasure gardens for gentry, there were lesser pleasure gardens in london for working families, which offered fresh air, tea, beer, swimming, fishing, courting, bowling, and cheap entertainment. running, vaulting, and leaping were still popular in the countryside. fairs had amusements such as fire swallowers, ventriloquists, puppet shows, acrobats, jugglers, animal performances, pantomimes, boxing, dwarfs, and albinos, but less trading. in was the first circus. circuses included feats of horsemanship and clowns. there was also eating and drinking competitions, foot races, football, archery, some wrestling, and some bowling on greens or alleys. in winter there was ice skating with blades and sliding. the right of public access to st. james park became entrenched by the s. there was sailing, rowing, swimming, and hopscotch. george iii made sea-bathing popular and it was supposed to be good for one's health. there was steeple chasing as of . horse-racing was given rules. on sunday, there was no singing, music playing, dancing, or games, but the bible was read aloud, prayers were said, and hymns were sung. sabbath-breakers were fined by magistrates. men often spent sunday in a tavern. in general, commodity prices were stable. but when harvests were poor, such as in when there was famine, and between and , bread prices rose. the price of wheat in london, which since had been between s. and s., rose to s. in . then the poor engaged in food riots. these riots were often accompanied by mob violence, burning, and looting of grain mills, shops, and markets. the english economy was so dependent on foreign trade, which had trebled since the s, that the slightest disturbance in the maritime trade threatened the english with starvation. in many localities the men in need of parochial relief were sent around from one farm to another for employment, part of their wages being paid from the poor rates. the poor often went from parish to parish seeking poor relief. settled people tended to fear wandering people. parishes sought to keep down their poor rates by devices such as removing mothers in labor lest the infant be born in the parish. so a statute was passed that a child born to a wandering woman may not have the place of birth as his settlement, but takes the same settlement as his mother. another device to prevent others from establishing settlement in a parish was for its farmers to hire laborers for only fifty-one weeks. also, some apprentices were bound by means other than indenture to avoid settlement. laborers who came to work in industries were refused settlement and sent back to their original parishes whenever they seemed likely to become dependent on the rates. statutes then provided that a parish must give settlement to apprentices bound for forty days there, not only by indenture, but by deed, writings, or contracts not indented. in , parishes were authorized to purchase houses in which to lodge or employ the poor and to contract with any person for the lodging, keeping, maintaining, and employing of the poor. these persons could take the benefit of the work, labor, and service of these poor, which would then be used for the relief of other poor. the poor refusing such lodging could not then get relief. many of the poor starved to death. the propertied classes turned a blind eye to the predicament of the poor, opining that they were idle or could save more and did not need higher earnings. charitable organizations gave to the poor and set up all day sunday schools to set wayward children on a moral path. the sunday schools could accommodate children who worked during the week. punishment of children by parents or others could be by whipping or even sitting in stocks. about half of the people were dependent on poor relief or charities. desertion by a man of his family was a common offense. parishes providing upkeep for the family sent men to find the errant husbands. the parish would ask unmarried mothers who was the father of their child and then force him to marry her or pay for the upkeep of the child. he often made a bargain with the parish to release him of his obligation for a sum of money paid to the parish. but many young parish children died of neglect, and later, parishes were required to list children under four to aid in accounting for them. divorces were still few and expensive, but increasing in number; there were more in this period. it was easier for a man to get a divorce for one act of adultery by his wife, than for a wife to get one for habitual unfaithfulness. vagrants and other offenders could be committed to houses of correction as well as to county gaols, because of the expense of the latter. crime was exacerbated by orgies of liquor drinking by the common people, especially between and , the sale of which did not have to be licensed as did ale. in , it was required that retailers of brandy, rum, and other distilled spirituous liquors be licensed and to pay pounds a year for their license, because excessive use had been detrimental to health, rendering persons unfit for useful labor and business, debauching their morals, and inciting them to vices. only persons keeping public victualing houses, inns, coffee houses, alehouses or brandy shops who exercised no other trade were allowed to obtain a license. this excluded employers who had sold liquors to their journeymen, workmen, servants, and laborers at exorbitant prices. street vendors who sold liquors had to forfeit pounds. a duty of s. per gallon was imposed on the retailers. there were riots in london against this statute and its new duties. there had been a tremendous growth in liquor drinking, which did not stop but went underground after this statute. in , a penalty of pounds or hard labor for two months was made for selling spirituous liquors without a license. also licenses were restricted to people who were certified by four reputable and substantial householders to be of good fame and sober life and conversation. sellers had to maintain good order in their premises or else forfeit pounds. about only innkeepers, victualers, and vendors paying rent of at least shillings could sell gin at retail. the punishment for the second offense was whipping and imprisonment. that for the third offense was transportation. about only innkeepers, victualers, and vendors paying rent of at least shillings could sell gin at retail. the punishment for the second offense was whipping and imprisonment. that for the third offense was transportation. in , additional duties were placed on spirituous liquors to discourage immoderate drinking going on by people of the meanest and lowest sort to the detriment of the health and morals of the common people. in , these duties were again raised. in , officers were authorized to seize all horses, cattle, and carriages used to transport foreign spirituous liquors for which duties had been evaded. in , the penalty for selling without a license was raised to pounds, which could not be mitigated below pounds. half the forfeiture was to go to the suer. the informer system for enforcing laws had its drawbacks. informers were not trained and were sometimes retaliated against for informing. sometimes this meant being tortured to death. sometimes there were schemes in which a leader of thieves, would take a profit in the stolen goods by posing as a good citizen who tracked down and returned them to the owners for a fee. also he might inform on his companions to get the reward for informing or to punish a troublesome one. sometimes the owner of goods was involved in a fake robbery. an effort in to turn the whole haphazard system of informers, into a specialized organization for the detection and apprehension of criminals had caused a mob to form and make threats; englishmen associated a police force with french tyranny. nevertheless, about , sir john fielding, a bow street magistrate, and his half-brother picked men to police the street under the direct control of the bow street magistrates. this first police district made an impact on the increasing violence of the times. in , a proposal before parliament to have a national census was also defeated by public fear of liberty being curtailed by having to make account of the number and circumstances of one's family and giving out information that could be used by enemies both in the realm and abroad. though grammar schools were endowed for the education of local poor boys, they sought fee-paying sons of gentlemen. they now taught arithmetic as well as reading and writing. translation and reading of latin was still important, e.g. aesop's fables, virgil, cicero's letters, caesar's commentaries, horace, pliny, juvenal, ovid, livy, and plautus. the "eton grammar" book replaced the "royal grammar" as the standard for latin and english grammar. the boys lived in boarding houses superintended by "dames" or older boys. there were usually two boys to a bed. there was bullying and initiation ceremonies such as tossing small boys up from a held blanket or having younger boys run naked in the snow. there were occasional rebellions by the boys and fights with the townspeople. flogging with a birch or caning with a rod until blood was drawn from the bare buttocks was the usual punishment. there were some national boys' boarding schools such as eton, winchester, and westminster. in these schools, boys could mix with sons of rich and powerful people, thus establishing important connections for their adult life. but there was more bullying of small boys by large boys at these schools and the smaller boys became menial servants of their seniors. occasionally there were student riots. however, most grammar schools were not residential. because the grammar schools were limited to boys, many boarding schools for girls were established. tradesmen's daughters were often sent to these to learn to act like ladies. most upper class girls were taught, at home or at school, english, writing, arithmetic, drawing, courtly dancing, needlework, music, and french. dissenting academies were established for those who did not pass the religious tests of the grammar schools. pencils were now in use. sons of gentlemen usually took "the grand tour" of the continent before going to university. these tours lasted for months or years, and always included paris and a protestant french university. the students went in groups with tutors. the chief purpose was now cultural, instead of practical. on these tours there was often misbehavior such as drinking and fighting. in , travelers checks were developed for those on the grand tour. the universities began to teach science. the new professorships at cambridge university were: chemistry, astronomy, experimental philosophy, anatomy, botany, geology, geometry, and arabic. ideas in geology challenged the bible's description of the creation of the world and there was a controversy over the origin and nature of fossils. in , a large pointed weapon of black flint was found in contact with the bones of an elephant in a gravel bed in london. oral and written examinations began to replace disputations. few professors lectured. dissenters were excluded from universities as well as from offices and grammar schools. oxford and cambridge universities were open only to members of the church of england, so other universities were established for dissenters. they taught geography, mathematics, science, physics, astronomy, mechanics, hydrostatics, and anatomy. at oxford and cambridge and harvard universities, students in science were relegated to different instructors, buildings, and degree ceremonies than students in literature, who often looked down on them as socially and intellectually inferior. the inns of court had ceased to provide residence. the period of education at law school at the inns of court was now reduced in from seven to five years for ordinary students and to three years for graduates of oxford or cambridge universities. the textbooks were: "doctor and student" by christopher saint-german ( ) and "institutes of the laws of england" by thomas wood ( ). most landed families tried to ensure that at least one member of the family in each generation was educated at the inns of court after going to oxford or cambridge. in , attorneys formed a "society of gentlemen practitioners in the courts of law and equity". in order to earn a living, most attorneys had to attach themselves to some great patron and serve his interests. so it was hard for an ordinary person to find an impartial attorney or to find any attorney willing to contest a powerful family. the first encyclopedia came into existence in . in was the first public circulating library in london. samuel johnson put together the first dictionary in . it standardized spelling and pronunciation. then came dictionaries for the arts, sciences, and commerce. there were histories with political biases such as the earl of clarendon's "history of the great rebellion". alexander pope wrote witty satire on human faults of the period such as "rape of the lock". daniel defoe wrote "robinson crusoe", "moll flanders", and "the poor man's plea" protesting disparity of judicial treatment of rich and poor, for instance for drunkenness. henry fielding wrote one of the first novels: "tom jones". joseph addison wrote essays on social behavior. jonathan swift wrote the satire on the times, "gulliver's travels". samuel richardson wrote some of the first novels, such as "clarissa"; he wrote on values such as religious faith, moral virtue, and family closeness. catherine macaulay started writing her weighty and impressive "history of england". many schoolmistresses wrote textbooks on a variety of subjects. poet and essayist hester chapone wrote "letters on the improvement of the mind". elizabeth carter wrote poetry and translated greek works; her work was published in "the gentleman's magazine". hannah more wrote the play "the inflexible captive". the diaries of caroline girle powys daniel told of her extensive travels in the nation, and the various life styles of polite society she visited. defoe's newspaper was the first great political journal. he claimed that the people have a right to control the proceedings of parliament. essayists like richard steele, who introduced the periodical essay in his newspaper, and joseph addison, in his newspaper, wrote in a conversational style about the social life around them and the thoughts and behavior of common men and women in a light and good-humored way. they separated humor from the old-style farce and gave it taste and gentility. and with this came a moderation, reserve, and urbanity in matters of religion, politics, and society. religious issues even became a matter of indifference. fairies, witches, astrology, and alchemy were no longer taken seriously by educated men. tales of fairies, witches, ghosts, and miracles were deemed appropriate for children. childrens' stories were becoming a distinct literary form. nursery rhymes included "hush-a-bye baby on the tree top" and the five little piggies. "mother goose's melody" was published in . there were picture books for children such as cinderella, red riding hood, and sleeping beauty. craftsmen made small models of their wares, such as dolls' china, dolls' furniture, silver, and flat lead soldiers. babies had rattles and teething rings. in copyrights for books was given for years, renewable for another years. alexander pope's translation of the iliad and odyssey made him financially independent. he collected advance payments from subscribers who would be listed in the book. a new book industry emerged in london with booksellers as master manufacturers who employed writers, authors, copyers, and subwriters. booksellers sold books of sermons, histories, political and literary satires, literary criticism, and dictionaries. there was a growing popularity of novels. books were expensive to buy. regular magazines on the new and strange were published. there were three daily, six weekly, and ten thrice yearly newspapers. newspapers increased in number from founded in to a total of in . by , there were over a million throughout the country. workmen usually began their day by reading a newspaper at a coffee house. authors of books which have been registered at the stationers hall shall have the sole liberty of printing and reprinting such book for years. others who print or sell or publish such shall forfeit the books and pay one penny for each sheet found in their custody, / to the queen and / to the suer. the printer shall give a copy of each book printed to the company of stationers, the royal library, the libraries of the oxford and cambridge universities, and certain other libraries. in , the two universities in england, the four universities in scotland, and the several colleges of eton, westminster, and winchester were given in perpetuity a copyright in books given or bequeathed to them. the british museum was incorporated to hold the collections of robert cotton of manuscripts, books, records, coins, and medals and of hans sloane, which contained rare books, coins, precious stones, pictures, plants, and mathematical instruments and had been left to the public. italian opera was introduced in by georg handel on his visit to england. his music became the standard music of georgian england. the academy of ancient music was founded in . it set the standard of selection and performance. in existence were the violin (including ones made by stadivari), viola, cello, double bass, oboe, trumpet, clarinet, bassoon, trombone, horn, flute, harp, organ, harpsichord, in which the strings were plucked, and piano, in which the strings are struck by little hammers. orchestras had at least thirty members. many hymns were written. painting by artists developed. gentlemen had portraits painted of their horses and dogs as well as of family. joshua reynolds painted the wealth and beauty of england. painters such as gainsborough did landscapes and dramatic history paintings too, but neither of these sold as well as portraits. scenery was painted for the theater. places of business had signs painted which portrayed animals. coaches were painted with mythological creatures and such. gentlemen collected antique statuary and painting, such as by rembrandt and rubens. in an academy of painting was founded, which included women painters. the first public exhibition of paintings was in . the society of artists was formed in and incorporated by royal charter in . this differentiated them from the painter-stainers company of face painters, coach painters, and house painters. the royal academy of london was founded in to merge all private academies and societies into one official body and to recognize the best artistic work. joshua reynolds was its first president. it was at first financed by the king. under george i, sculptors became distinct from masons. they did monuments and portrait busts of the royal family, nobles, and great men. from italian influence, palladian architecture came into vogue. it was typified externally by a panoramic look achieved by horizontal lines, balanced alternatives of plain wall and openings, and portico with a heavy pediment like the front of a roman temple. stucco was often used to plaster housefronts, flute columns, and ornament pediments. architects took students. designers of engraved, etched, and historical prints were given the sole right to print them for years. copiers had to forfeit s. per print. foreigners were now interested in learning about english life, philosophy, and opinion. they learned english to read english literature such as shakespeare. no longer were france and italy the only centers of culture and influence on other nations. by , england was the leading sea power by far. the royal society was still the principal focus of scientific activity. issac newton was its president for several years and drew in more foreigners. its members were mathematicians, chemists, botanists, physicians, engineers, authors, poets, and theologians. papers given there generated much discussion at its meetings. newton opined that particles attract each other by some force in a similar way that large bodies attracted each other. this force in immediate contact was exceedingly strong, at small distances performed chemical interactions, and at greater distances had no effect. also there were local associations and societies. there were learned journals such as "philosophical transactions". in , the mercury thermometer was invented by gabriel fahrenheit of germany; this was much more accurate than the alcohol and water thermometers. sweden's anders celcius invented the celsius scale. the hydrometer, which measures air humidity, was also invented. these made possible weather forecasting. in , the french chemist etienne geoffroy published a table of affinities among chemical substances, a precursor to the periodic table of elements. carolus linneaus, a swedish naturalist and botanist, established the scientific method of naming plants and animals by genus and species. when he showed that there was a sexual system in plants, church authorities were so shocked that they suppressed this knowledge as they did other scientific knowledge. rev. stephen hales made ventilators for ships, prisons, and granaries, using the method of injecting air with bellows. this saved many lives in the prisons. in , he discovered that water that plants lost by evaporation was restored by the roots up the stems. he found that gas could be obtained from plants by dry distillation and invented a way to collect gases by heating certain substances. hans sloane, the son of a receiver-general of taxes, who became a physician, had collected hundreds of species of plants in jamacia while physician to its governor. he became physician to george ii and was a benefactor to many hospitals and devised a botanic garden in london for the society of apothecaries. italian luigi marsigli started the science of oceanography with a treatise discussing topography, circulation, ocean plants and animals, along with many measurements. frenchman jean-etienne guettard prepared the first true geological maps, showing rocks and minerals. he identified heat as the causative factor of change in the earth's landforms. john mitchell studied earthquakes. in , george hadley, a london lawyer and philosopher, determined that the cause of the prevailing westerly winds was the rotation of the earth to the east. benjamin franklin in observed that a particularly violent storm occurred in boston a day after a particularly violent occurred in philadelphia, and realized that they were the same storm, even though the storm's surface winds were from the northeast. he determined that atlantic coastal storms traveled from the southwest to the northeast. in , he prepared the first scientific chart of the gulf stream. daniel bernoulli, a swiss university lecturer in physics, mechanics, medicine, and anatomy, proved his theorem that any degree of statistical accuracy can be obtained by sufficiently increasing the observations, thereby also representing the first application of calculus to probability theory. in , he showed that as the velocity of horizontal fluid flow increases, its pressure decreases. this followed from his theorem that the total mechanical energy of a flowing liquid, comprising the energy associated with fluid pressure, the gravitational potential energy of elevation, and kinetic energy of fluid motion remains constant; that is, the mechanical energy is conserved. this was the first mathematical study of fluid flow. he demonstrated that the impact of molecules on a surface would explain pressure, and that assuming the constant random motion of molecules, pressure and motion will increase with temperature. he explained the behavior of gases with changing pressure and temperature, establishing the kinetic theory of gases. jean nollet from france discovered osmosis, the passage of a solution through a semi-permeable membrane separating two solutions with different concentrations. in , scotsman physician joseph black identified carbon dioxide, the first gas recognized as distinct from everyday breathing air. he did this by using a balance to weigh alkalies before and after exposure to heat. they lost weight by losing carbon dioxide. his development of the concept of latent heat, the quantity of heat absorbed or released when a substance changes its physical phase at constant temperature, was the first application of quantitative analysis to chemical reactions. he ascertained the effects of carbon dioxide on animals and its production by respiration, fermentation, and burning of charcoal. at this time, all flammable materials were thought to contain "phlogiston", which was given off as they burned and was associated with the transfer of heat. plants were thought to remove phlogiston from the air and therefore burned when they were dry. in , joseph priestly, a nonconformist minister, schoolmaster, and tutor, discovered oxygen by heating red oxide of mercury. he became interested in the study of gases by watching the process of fermentation in a brewery next to his house. his gas collection techniques enabled him to work with gases soluble in water. he showed that the processes of combustion, respiration, and putrefaction caused one-fifth of air exposed over water to disappear, and that plants restored air vitiated by these processes. when he isolated oxygen, he noted that it was better than air in supporting respiration and combustion produced by heating certain metallic nitrates. it was called "respirable air". hydrogen (inflammable air) and nitrogen were discovered. the differences between acids, bases, and salts and their relationship to one another became understood. there was some theoretical as well as empirical knowledge about metals, e.g. in boiling points, intermetallic compounds, and changes in properties. in , benjamin frankin invented the franklin stove, which greatly improved heating efficiency. as a freestanding cast-iron fireplace, it supplied heat in all directions instead of only from the one direction of the usual wall fireplace. also, the heat absorbed by its cast-iron sides provided warmth even after the fire went out. static electricity was being discerned. it had been noticed that shaking a mercury barometer produced a strange glow in its "vacuum". experiments showed that a glass rubbed in vacuo would shine brightly and that an exhausted glass globe rapidly whirled on a spindle and rubbing against the hand produced a brilliant glow. and further, as newton wrote: "if at the same time a piece of white paper or white cloth, or the end of ones finger be held at the distance of about a quarter of an inch or half an inch from that part of the glass where it is most in motion, the electric vapor which is excited by the friction of the glass against the hand, will by dashing against the white paper, cloth, or finger, be put into such an agitation as to emit light, and make the white paper, cloth, or finger, appear lucid like a glowworm". in the study of electricity, conductors and insulators were recognized. there were demonstrations of electrical phenomena such as seeing the ignition of brandy by a spark shooting from a man's finger and the feeling the transfer of an electrical impulse created from a rubbed glass globe among a circle of people by their holding hands. in , frenchman charles dufay discovered that there are two types of static electric charges, and that like charges repel each other while unlike charges attract, linking electricity to magnetism. in , benjamin franklin "caught" lightning with a sharp pointed wire attached to the top of a kite which led down to a key at the other end. when a thunder cloud electrified the kite, a charge could be seen coming from the key to an approaching finger. this charge was then stored in an early type of capacitor ( leyden jar) and then reproduced to create the same feeling of transfer of electrical impulse among a circle of hand-holders, thereby illustrating that it was the same phenomenon as electricity. this countered the theological belief that thunder and lightning were signs of divine displeasure or the work of the devil. he invented the lightening rod, which was then used to protect houses. about ten years later, the first lightening rod on an english church was erected, which showed the church's acceptance of his theory. franklin theorized that there were electric charges everywhere and designated them as positive or negative. he observed that opposite charges attracted each other, but that like charges repelled each other. in , joseph priestly did an experiment suggested by franklin and showed that electrical force follows the same law as gravitational force; that is, that the attraction or repulsion between two electrical charges varies inversely in proportion to the square of the distance between them. joseph-louis lagrange from france developed differential equations. natural history museums were established. a group split off from the royal society to show collections of curiosities. in , a self-educated mechanic founded the society for the encouragement of arts, manufactures, and commerce. it had sections on agriculture, manufactures, mechanics, chemistry, liberal arts, and trade and colonies. it sponsored contests at which prizes were given, such as that in for the best invention of a machine that would spin six threads of wool, flax, cotton, or silk at onetime with only one person attending it. machines still mostly relied on human, animal, and water power. abraham darby was a quaker and millwright who made large cooking pots of iron, which cost less than bronze. around , he experimented with various substances to take the place of wood charcoal in iron smelting. coal was a remote possibility. in forging or working metals coal had more or less the same qualities as wood charcoal, but this was not the case in smelting ores, especially iron ore. coal contained sulphur compounds which caused the iron ore to deteriorate. so he controlled the burning of coal to burn out these impurities, which produced coke. his son took over after his death and improved the methods of coking, strengthened the bellows, and added ore limestone and other reagents to the mixture. by , his large blast furnace using both pit coal and wood charcoal was very productive. he made iron goods of such quality as those previously imported. in , richard reynolds replaced the wooden rails connecting a blast furnace to mines with cast iron rails. he had apprenticed as a grocer and then became a partner in a large ironworks of darby with a man whose daughter he married. after darby died and before darby's sons became of age, reynolds was in charge of the ironworks. he cast cylinders of the early steam engines. in john roebuck, a physician and son of a prosperous manufacturer of sheffield goods, found a cheaper way to manufacture sulphuric acid. he did this by using leaden chambers instead of glass globes to collect the vapor from burning nitre and sulphur over water. this reduced the cost of sulfuric acid to one-fourth of its previous cost, so that sulfuric acid came to be used to bleach linen instead of sour milk. he also made cast iron into malleable iron by smelting iron using coke from pit-coal instead of charcoal. but flooding in his mines and further ventures resulted in his ruin and bankruptcy. thomas newcomen, a baptist ironmonger, blacksmith, and locksmith, supplied iron tools to mine workers. he was aware of the problem of flooding of mines and the awkward system of pumps which were used one above the other and were powered by teams of horses. he made a very valuable contribution to power generation by inventing the atmospheric pressure steam engine with piston around . he did this by connecting theory with experiment, through the use of scientific knowledge, especially the royal society's investigation into atmospheric pressure. first cold water was poured on a cylinder in which a piston could move up and down. this caused steam inside the cylinder to cool and condense into water. the vacuum created inside the cylinder under the piston caused atmospheric pressure on top of the piston to push the piston down. the piston was attached by a rod to the end of a beam which end then swung down from a point on a vertical stand to which it was attached. when the beam swung, its other end, which was attached to a rod connected to a pump, rose, thus working the pump. then steam from water heated in a boiler under and communicating with the cylinder was allowed into the cylinder under the piston. this overcame the atmospheric pressure on the piston from above and allowed the piston to rise by a counterweight on the rod over and connecting to the pump. boys opened and closed the steam valve, which let steam into the cylinder from below, and the water valve, which let cold water pour on the cylinder from above. then the boys were replaced by the valves being connected to the swinging beam which caused them to open and close at perfectly regular intervals. a story gives the credit for this improvement to an inventive valve boy who wanted to play with his friends. in , the mining industry used this steam engine to pump water out of mine-shafts which had flooded. these engines were also used to supply water to reservoirs locks at canals, and drinking water facilities in towns. one such engine developed power equivalent to fifty horses working at one sixth the cost. it was the first automatic machine since the clock. then james watt invented the steam engine which used steam as a force acting on the piston. watt made his living making scientific instruments for glasgow university. around , he was fixing one of newcomen's engines belonging to the university, when he saw its inefficiencies, such as the loss of heat when the cylinder was cooled. he saved this heat energy by having the steam condensed in another vessel distinct but connected to the cylinder. this condenser was kept constantly cool by cold water. so the condensed steam was pumped back into the boiler and it circulated continuously, thus obviating the need for constant resupply of water. in order to avoid the necessity of using water to keep the piston air-tight, and also to prevent the air from cooling the cylinder during the descent of the piston, he used the expansion of the steam to push the piston instead of atmospheric pressure. then, in order to expand the use of the steam engine beyond that of a pump, he converted the oscillating motion of the beam into rotary motion. he formed a partnership with john roebuck, who had a two-thirds interest. but when roebuck needed money, he sold his interest to matthew boulton. boulton wanted better power that that of his watermill for his workshops that made metal buttons, watch chains, shoebuckles of engraved steel, ornamental bronzes, vases, chandeliers, tripods, silver and plated wares, and imitation gold and tortoiseshell work. in dry weather, about eight horses were needed to aid in driving the machinery. a steam pump could pump water from the bottom of the watermill to the top to be used again. he had built up this factory of five buildings and six hundred workers, with , pounds derived from his marriage to an heiress. by , the partnership had built a model steam engine with rotary power whose design could be sold. the price of the engine was set as the amount of money saved on fuel costs in the first three years of its operation. this machine was a relatively economical user of energy, capable of performing almost any kind of work. about , john wilkinson, the son of a farmer who also oversaw an iron furnace, substituted mineral coal for wood charcoal in the smelting and puddling of iron ore. in , he made it possible to transport coal out of mines on rail wagons drawn by horses. as father of the iron industry, he made iron chairs, vats for breweries and distilleries, and iron pipes of all sizes. with his invention of the first precision boring machine, he provided watt with metal cylinders of perfectly accurate shape, which were necessary for the smooth working of watt's steam engine. in he bought a pumping steam engine from boulton and watt's company for his ironworks. it pumped three times as fast as newcomen's engine. watt's steam engine came to be used for power-loom weaving and then for all sorts of manufactures. it would put england ahead of every manufacturing country in the world. millwrights built, installed, and later designed not only steam engines but the machinery that they drove. these men were essential in setting up the first factories. they were the most imaginative and resourceful craftsmen. they knew how to use a turner's, a carpenter's and a blacksmith's tools and had supervised or done smith work, brick-laying or stone-mason's work in erecting and maintaining windmills with their many gears and bearings. there was a good deal of variety in mills, as well as in the structure and workmanship of them, some being worked by horses, some by wind, and others by water. they had some knowledge of arithmetic and practical mechanics. they could draw out a plan and calculate the speed and power of a wheel. although technically in a branch of carpentry, the millwrights learned to work with metal as well. metal was superior to wood not only because of its strength but because wood parts were irregular in motion and wore out rapidly. so iron and brass parts came to replace wood and leather parts. in , j. paine got a patent for rolling iron instead of hammering it. the iron bars, being heated in a long hot arch or cavern passed between two large metal rollers, which had certain notches or furrows on their surfaces. clockmaker and quaker benjamin huntsman was struck with the difficulty of finding finely tempered steel for the springs of his watches and pendulums of his clocks. he experimented for years to find a homogeneous and flawless metal, and finally, in , invented cast steel, which had high tensile strength and was much harder than ordinary steel. he did this by remelting refined high quality wrought iron bars at very high temperatures in sealed fireclay crucibles, together with small quantities of charcoal and ground glass as reagents. this distributed the carbon evenly in the metal, which hammering could not do. he approached the sheffield cutlers, who finally agreed to try his cast steel for fear of losing their business to some other manufacturers who were approaching huntsman. since huntsman had no patent, he worked at night and employed only men who would keep his secret. his steel was made at night. his factory became prosperous about and the excellence of his steel manufacture was never equaled. steel and wrought iron was scarce and expensive. around , iron founder samuel walker, discovered huntsman's secret by appearing at huntsman's factory disguised as a shivering tramp who asked to warm himself by the furnace fire. he feigned sleep while watching the whole process. when he began to make cast steel, his annual output grew from pounds in to , pounds in and he made a fortune. silver was plated over copper from . white metal from tin and antimony was used from about . the brass industry was beginning to produce brass from copper and zinc that was as good as foreign brass. the secret of plate-glass manufacture came to england in the s. in , a corporation was set up for the manufacture of plate glass. it could raise joint-stock because of the great risk and large expense of the undertaking. in , chemist william cookworthy was given a fourteen year patent for the discovery of certain clay and stone in england from which he made england's first true porcelain, i.e. that which could sustain the most extreme degree of fire without melting, and also had grain as smooth and lustrous, and the transparency and beauty of color, equal in degree to the best chinese or dresden porcelain. the import duties on diamonds, pearls, rubies, emeralds and other precious stones and jewels was dropped to increase the business of cutting and polishing them. the world's first chocolate factory was set up in england in . milk was added to chocolate. the fanmakers were incorporated in . a linen company to sell cambricks [a fine white linen] and lawns [a thin and fine linen] was incorporated in . a free market for fish was established in westminster to supplement the free fish market in london to prevent forestalling and monopolizing of the fish industry and to increase the number of fishermen. duties for its maintenance were paid by the fishermen. certain men were given the right to incorporate fisheries of white herring for twenty one years to improve the fisheries and give employment to the poor. they were authorized to sell subscriptions and to build ships provided the fishery employ , in such fishery. there were restrictions on taking fish from rivers during their breeding season. herring fishermen were allowed to land and dry their nets and erect tents and pickle, cure, and reload fish on uncultivated land up to yards beyond the high water mark all any shore, forelands, harbors, and ports, without paying the landholder. later, a bounty of s. per ton was authorized to be given for vessels that were fitted out and used for white herring fishery. anyone wishing to be admitted to the levant (turkey) trading company was to be made free of such on paying pounds, so that this trade might be increased. in the s the first cooking school was established by mrs. elizabeth raffald, a servant. as for health, there were many occupational hazards. these included paralysis by mercury of refiners of silver and gold, paralysis by mercurial fumes of molten lead by plumbers, palsy of glaziers working with melted lead and of watch gilders, lead poisoning of painters, blinding by sawdust of sawyers, and the affects of fumes on pewterers and letter founders. particles of copper were breathed in by copper workers, whose hair and beards then turned green. braziers became deaf. hairdressers, bakers, masons, bricklayers' laborers, coal heavers, chimney sweeps, flax and feather dressers, and workers in leather warehouses suffered pulmonary diseases. chimney sweeps also had warty skin cancer from their bodies being habitually covered with soot and the lethal cancer of the scrotum. working with charcoal fires affected confectioners, chocolate makers, and sail-cloth makers. tanners, catgut makers, and tallow-candle makers became nauseous. heavy work weakened many bodies and caused hernias. bending over work for long hours caused stooped posture and hump backs. the association between dirt and disease was just beginning to be made. the principles of infection and hygiene were not well understood. bathing every couple of months was not unusual. there was some theological feeling that cleanliness betokened pride and filthiness humility. most houses had a bathtub that could be placed beside the fire in a bedroom. about % of the population had been getting smallpox, which blinded, maimed or disfigured many. deaths from smallpox were only occasional in the country, but constant in london, where about % of every generation died from it. making death commonplace, especially in the winter months when thick, dirty clothes were worn day and night, were typhus, which was carried by lice; typhoid, which was spread by flies from horse dung; tuberculosis; and influenza. dysentery and diarrhea made death commonplace especially in the summer when flies transmitted bacteria from filth to food and the water was its most foul. there was great meaning in the prayer "now i lay me down to sleep; i pray the lord my soul to keep; if i should die before i wake, i pray the lord my soul to take." thyphus spread easily in hospitals and gaols where vermin could live in the beds made of wood. colds and toothache were also common. venereal disease was not uncommon among the well-to-do in london. condoms were used to deter disease, but were still crude, coarse, uncomfortable, and unreliable. london had almost double the mortality rate of the nation. the number of baptisms in london were about % of its burials. about % of the deaths in london were among children under two, due to infantile diseases fostered by malnutrition, maternal ignorance such as giving babies adult food, ill-health, bad water, dirty food, poor hygiene, and overcrowding. many children died from diptheria, measles, scarlet fever, and smallpox. ten or twelve children with three or four surviving was a common family pattern. many well-to-do in london kept their children in the country for their better health. no matter what the ailment, physicians regularly bled patients and often gave them enemas with wooden funnels. sometimes a blister or irritant was applied to the skin to draw out the evil humors. cupping was used to provide suction to remove pressure from various parts of the body. also used were poultices, ointments, and herbal treatments, notably quinine. opium was given to deaden pain. there were about drugs in use. charms, spells, astrology, and folk remedies still played a major role in medicine. a physician attended surgeries to give advice. physicians could visit apothecary shops once a year and throw away any drugs falling below an arbitrary standard of excellence. in the house of lords decided a jurisdictional contest between the college of physicians and the society of apothecaries. it permitted the apothecaries to direct the remedies as well as to prepare them, although they could only charge for the drugs they provided. the poor sought advice from apothecaries. there was progress in health. scurvy virtually disappeared as a cause of death due to the eating of more vegetables. people were cleaner when wearing cotton, which had to be washed. in , free inoculations for smallpox began in england, pioneered by lady mary wortley montague, also a poet and letter writer. she led the way by having herself and her son inoculated. theologicians denounced this practice as a diabolical interference with disease sent by providence for the punishment of sin. sarah wallen mapp was a famous bone-setter. in surgeon william cheselden, whose master was specially licensed to perform the operation of removing stones in the hospital, reduced the death rate for removing stones due to hemorrhage, shock, and infection down to % by his invention of a lateral operation. he also published an anatomy book and treated certain kinds of blindness by forming an opening in the eye to serve as an artificial pupil. in , claudius aymand conducted the first successful appendectomy. nutritional deficiency diseases were beginning to be understood. in , james lind, a surgeon in the navy who noted that more men died of scurvy than in battle, published his work on his dietary controlled experiment on seamen showing that oranges, lemons, limes, green food, and onions cured scurvy. he published his methods of prevention and cure of malarial fevers and his method of disinfecting ships with the smoke of wood and gunpowder. in , he discovered that steam from salt water was fresh, and proposed a method of distillation to supply ships with fresh water. in giovanni morgagni from italy opined that disease resulted from a breakdown of organs and tissues that was viewable on autopsy. he wrote an extensive book showing the anatomy of diseases, e.g. affections of pericardium and aorta, (e.g. aneurysm), valve diseases, ulceration, rupture, dilation, and hypertrophy. he associated clinical observation with anatomy of disease. for example, pain on the left upper chest, numbness of the left arm, and difficulty breathing occurring together with exertion were associated with dilation of the aorta and hardening of arteries, which caused delay of blood in the aorta, in the heart, and in the lung vessels. bernoulli showed that the living human body constantly changes so that all its particles are renewed in a certain number of years. stephen hale described the first quantitative estimate of blood pressure and fundamental characteristics of blood circulation. in , frenchman dr. pierre fauchard, the father of dentistry, recommended rubbing one's teeth and gums with a piece of sponge. since three out of four babies died shortly after birth, beds in hospitals for pregnant women were established starting in . the next year physicians began to replace midwives. a hospital was established for abandoned foundling children in so they wouldn't die, as they usually did, in the care of parishes or workhouses or be exposed in the streets or left on door steps of the wealthy. it was besieged by women with babies in their arms. in a statute made the principles of the foundling hospital obligatory for all london parish children under six; they were to be sent to nurses outside london who were to be paid at least s. a week by the parish. in , this was extended to all parishes, and nurses who cared for a child well for a year was given a reward of at least s. also, parish children were not allowed to be apprenticed for more than seven years or until age and an apprentice fee of at least pounds, s. was to be paid to the master or mistress by the parish. after , there was a steady growth of population due to improved midwifery. william smellie taught scientific midwifery in london from and wrote a "treatise on midwifery" in , which had a clear explanation of the mechanism of labor. at this time there were several maternity hospitals. forceps existed for difficult deliveries. in , dr. cadogan wrote his book: "an essay on the nursing and management of children, which made a great improvement in the care of young children. for instance, it recommended loose clothing, no tight swaddling clothes, and a simple diet. swaddling clothes were used to retain a baby's evacuations but produced discomfort and serious skin conditions. a hospital was founded for venereal diseases in , another as an asylum for the penitent and orphaned girls who might otherwise be inclined to prostitution, and yet another for prostitutes in . coitus interruptus was widely used for birth control. there were also clandestine abortions and intentional neglect of newborns. melancholy was widespread. suicides were frequent and drugs were sold for this purpose. in , the mentally ill were classified as curable or incurable. there were many private asylums. a lunatic who was furiously mad and dangerous was required to be safely locked up or chained in his place of settlement. there were frequent and dangerous abuses in madhouses, so in , no one was to keep or confine more than one lunatic without a license granted by the royal college of physicians or else forfeit pounds. a justice of the peace and a physician inspected all madhouses to observe conditions and care of patients there. if refused admittance, the license was forfeited. in was the last time a monarch touched a person to cure him of a malady such as scrofula. in surgery students began to dissect corpses with their own hands to better learn anatomy. in the company of surgeons was separated out of the company of barber-surgeons. the barbers were proscribed from performing surgery and had to have a separate corporation from the surgeons because of the ignorance and unskillfulness of barbers healing wounds, blows, and hurts e.g. by blood letting and drawing of teeth. there was a surgeon's hall, officers chosen by the surgeons, and bylaws. the surgeons were required to examine candidates for the position of surgeon in the king's army and navy. they were exempted from parish, ward, and leet offices, and juries. in , a statute provided that the corpses of murderers were to be sent to the surgeon's hall to be anatomized, for the purpose of deterring murders. the penalty for rescuing the corpse of a murderer was to suffer death. the first dispensary for the poor was established in to give free medicine and treatment to the infant poor, and then to the infants of the industrious poor. the progress of science was seen to threaten the authority of the church. there was a general belief in god, but not much attention to jesus. feared to come were free thought, rationalism, and atheism. there was still a big gap between local parsons and bishops, who were educated, well-off, and related to the aristocracy. on the whole, preachers talked about morality and christian belief. they stressed good works and benevolence. but many protestant clergy were more concerned with their own livings than with their parishioners. they were indolent and did not set a good example of moral living. >from , freemasonry spread and swiftly provided a spiritual haven for those who believed in god and desired ritual and mysticism. about , john wesley, the son of an anglican clergyman, became a religious leader for mining and industrial laborers, who were crowded into the slums of industrializing cities, and largely ignored by the church of england. he had been led to this by a profound religious experience. he led an evangelical revival with a promise of individual salvation. he lead an aesthetic life, eating bread, and sleeping on boards. the person to be saved from the horrors of eternal damnation in hell was to discipline himself to regular prayer, self-criticism, and hard work and to forsake worldly pleasures such as drinking, overeating, and even frivolous talk. this methodical regularity of living led to the movement being called methodist. wesley believed in witchcraft and magic. he opined that bodily diseases and insanity could be caused by devils and that some dreams are caused by occult powers of evil. the methodists engaged increasingly in philanthropic activities. they gave to the poor, and visited the sick and the imprisoned. wesley preached in the open air where all who wanted to attend could attend and also wear whatever clothes they had. large crowds of poor people gathered for these meetings. although crowds of poor people were generally feared because of their mob potential, these meetings were stormed as were quaker meetings, with shouts of "the church in danger". the methodists' homes were invaded and their belongings destroyed or taken or their persons beaten with tacit permission of authorities. some justices of the peace drafted preachers into the army or navy as vagabonds. eventually, however, the methodist revival imbued energy and piety into the lethargic clergy of the established church. a new moral enthusiasm and philanthropic energy grabbed the nation. prisons were reformed, penal laws made more wise, slave trade abolished, and popular education given momentum. in the established church, charity gained precedence over theology and comfort over self-examination and guilt. evangelist george whitfield preached calvinism and it split off from methodism. then calvinism went into full decline. presbyterianism collapsed into unitarianism and a general tendency towards deism developed. church sanctuary was abolished for those accused of civil offenses. there was much travel by scheduled coaches, which usually carried several passengers and were drawn by four horses. regular service of public vehicles to and from london went four miles an hour; it took two days to go from london to oxford. it was not unusual for a coach to bog down or overturn. sometimes it had to detour around an impassable stretch of road or borrow a couple of oxen from a nearby farm to get out of a quagmire. men and horses drowned in some of the potholes. robbery was endemic and some of the roads were so unsafe from highwaymen that bands of armed horsemen were hired to accompany the coaches. it was not unusual to come across gibbets for hanging at crossroads. in london inns at coach stops, there were casual workers who were associated with gangs of thieves specializing in passengers' goods. these workers would inform their associate thieves of specific goods that had been loaded onto certain coaches, which were then robbed selectively. traveling merchants preferred packhorses to carts because they could cross overland or through watercourses more easily. these pack horses traveled in regular caravans in single file. the leader had a bell around his neck to warn, from a distance, riders or carts coming in the opposite direction. carts traveled about two miles an hour. in the trustee system superseded administration by the justices of the peace of the turnpike system, including tolls and toll booths. the toll booths were frequently attacked by riotous mobs. so anyone pulling down or destroying turnpike gates at which tolls were to be paid was to go to prison or be put to hard labor in a house of correction for three months without bail. he was also to be whipped in the market place between : and : . if he offended a second time, he was to be transported for seven years. later the penalty of prison up to three years was added as an alternative. the hundred was to pay the damages up to pounds. the penalty for threatening the toll collector or forcibly passing through was pounds for the first offense, and pounds for the second offense with imprisonment for one year for those who couldn't pay. by , about miles could be made in a day. the turnpike trusts took over most of london's major highways during the s. there was no travel on sundays until . in , shocked by the difficulty caused by bad roads in concentrating the royal army to stop the scottish invasion, the king began systematically to improve all the roads. there was much road and highway widening and repair, and also river bank and pier repair, going on all over the country. marsh lands were drained. harbors were deepened. there were numerous statutes trying to adjust the needs of travel with the condition of the roads. for instance, there had to be a pole between wheel horses or double shafts. carriages, wagons, or carts drawn by more horses, oxen, or animals, or with very heavy loads, or with wheels bound with iron tires were observed to cause more damage, so they were restricted or had to pay higher tolls. then broad and smooth iron tires were observed to not cause the amount of damage as did narrow or irregular iron tires and their use was encouraged. from , weighing machines were kept at toll gates. by , turnpike roads had to be at least feet wide, and hedges and fences thereon had to be taken down by their owners. cartways to markets had to be at least feet wide, and horseways (later ) feet wide. there were ditches, drains, and gutters to carry off water. names and abodes of owners were to be put on carriages, wagons, and carts or forfeit - pounds, except for carriages or coaches of a nobleman or gentleman for his private use or those drawn by only one horse or two oxen, or those with wide wheels and a light load. there were town name signs, direction posts, and milestones. in , the surveyors and the commissioners of turnpikes were given authority to requisition local men, carts and draught animals for compulsory labor, or money instead, in maintaining the roads and making new ditches and drains. they could take any local sand, gravel, chalk, or stone from waste or common land or, if not needed by and satisfaction was made to the owner, from enclosed land. the surveyor was to be chosen locally for a year and could be given an allowance. new roads required the consent of the landowners and a negotiated price. a driver of a carriage, wagon, or cart on the public highway who by negligence or misbehavior caused any hurt or damage to a person or any other carriage or hindered free passage of any other carriage was to forfeit up to s. anyone leaving an empty cart or other obstruction on a public highway was to forfeit up to s. any cart, wagon, or carriage driven without a person on foot or on horseback leading it had a forfeiture up to s. any driver of an empty cart, wagon, or carriage who refused or neglected to make way for any coach or loaded cart, wagon, or carriage was to forfeit up to . any offender could be apprehended without warrant by anyone who saw his offense, and who was then to deliver him to a constable or other peace officer. by , the mail service was well-regulated. letter rates within miles of london were d. per piece of paper, then d. per ounce. within miles of new york city in america there were d. per piece of paper, then s. d. per ounce. letters were still carried by post horses. from london to new york, they were s. per piece of paper for the first three pieces, then s. per ounce. in , this rate was extended to all colonial ports. in , canals began to be constructed linking the main rivers. the barges were hauled by horses or men from the land near the river's edge. now goods of many inland towns cheapened and reached a national instead of just a local market. in an almost illiterate man called james brindley cut the first real canal at worsley for the duke of bridgewater, who owned the coal deposits there. he kept the line of the canal at one level to avoid having to make locks. it crossed one river as a forty foot high aqueduct. he refused to use the beds of small rivers, whose sluggish flow gave no adequate security against silting. coal at the destination point of manchester fell to half its former price. after wedgwood headed a campaign to persuade parliament to construct a certain canal, he bought adjacent land on which he built a great factory. in , the maximum interest rate that could be charged was reduced to % for the advancement of trade and improvement of lands because that rate was the norm in foreign lands. thus the maximum interest rate fell from to to and then to %. when issac newton was master of the mint, he noted that too restricted a currency caused a high interest rate to prevail, which was bad for commerce and the plans to set the poor to work, but that too large a quantity of money in circulation caused interest rates to fall, which encouraged luxury imports and the export of bullion. the bank of england provided a safer deposit and lower interest than goldsmiths or scriveners. it also issued notes for and (since ), and pounds. outside retail trade and wages payments, business was conducted on a credit basis with a paper promise to pay at some future date. check use was still formal and rare. tradesmen typically authorized their apprentices to "write off or draw" from their accounts, bringing their bank books. depositors authorized other people such as certain servants, relatives, cashiers, or company secretaries to make use of their accounts. after , the bank dividend was about % a year. promissory notes are assignable and endorsable and the holder may recover against the signer or any endorser as is the case with bills of exchange. in , no more promissory or other notes, bills of exchange, draughts, or undertakings in writing and being negotiable or transferable may be made for under s., because it was hard for the poorer sort of manufacturer, artificer, laborer and others to use them without being subject to great extortion and abuse. (cash was to be used instead.) by , government finances had become so chaotic that the chancellor of the exchequer sought to re-establish public credit by means of a chartered commercial company, the shares of which were offered in substitution for government stock. this south sea company was established in with a monopoly to trade in south america. the prospects of huge profits sent the share prices soaring. there was also an increase in the money supply. these factors led to a speculation bubble in in this stock. also, many stock-jobbers promoted companies of every description, such as one to extract gold from seawater. there was an insurance boom with about seventy insurance companies in existence, many virtually gambling in life contingencies. there was speculation in insurance for all types of occurrences, such as housebreaking, highway robbery, death by gin-drinking, and horses becoming disabled. the total capital invested in all these enterprises rose to over five times the cash resources of all europe. when the bubble burst, pound south sea stock had gone up to pounds and back down again to . since the government had in effect bought this stock at a low price and paid off its debt with this stock at a high price, this bubble relieved the government of much of its massive debt. it also redistributed wealth. after the bubble burst, investors took refuge in investing in - % government fixed-interest securities. a result of this bubble burst was the chartering of two corporations for marine insurance and prohibition of such by any partnership or firm. private persons could continue to write policies, and they chose lloyd's coffeehouse as their headquarters; it came to dominate the world of marine insurance after the two chartered companies came to concentrate on fire and life insurance. lloyd's list became the foundation for a new newspaper. there were specialty boxes at lloyd's such as on america or the baltic. many ships were reported captured by enemies or pirates, but underwriting insurance was a lucrative business for many. in the gold guinea was assigned a value of s. in , the gold standard was introduced. in , clipped and deficient gold coin was called in to be exchanged for new coin. local taxes were collected for the church, the poor, county courts of justice, borough administration, and highways. national taxes included the income, customs, and excise taxes. when the government tried to levy excise taxes on wine, tobacco, and then on cider, there was a public protest with mobs demonstrating against the power given to excise inspectors to search in people's homes. these excise taxes were no longer levied. duties were placed on items for encouraging industries within the country and to pay the expenses of government. there were more and higher duties to pay for war. at various times there were duties on hides, skins, seal skins, gilt and silver wire, malt, mum (strong beer made from malted wheat), cider, perry, spices, tea, coffee, cocoa nuts, chocolate, cocoa paste, snuff, chinaware, drugs, calicoes, herrings, apples, oysters, raw italian and chinese silk, gum arabic, gum senega, tallow, hogs-lard, grease, beaver skins and wool, imported brandy, raisins, coals and coal dust, coaches for one's own use or for hire (except licensed hackney coaches); silver plate owned by persons, corporations, and bodies politic; leases, bonds, and other deeds; licenses for retailing wine, beer, and ale; % of salaries, fees, and perquisites from office and employments including royal pensions and gratuities over pounds. when the price of wheat was high, as in , when it was s. per bushel, wheat products could not be exported. (at other times, they could not be imported.) duties on imported wheat, barley, rye, oats, beans, rice, indian corn were also dropped. the prohibition of importing salted beef, pork, bacon, and butter was dropped. in , no live cattle, pigs, mutton, pork, beef, either fresh or salted could be exported or forfeit pounds for every such animal or s. per pound of such meat. in , peas, beans, bacon, hams, and cheese could be imported duty free, and in labrador codfish. in , raw goat skins could be imported duty-free to improve the domestic manufacture of red, green, and blue leather. in , there were given costs above which various commodities could not be exported: wheat at s. per quarter, rye, peas, or beans at s., barley and beer at s., oats at s. or else forfeit the goods, s. per bushel and the ship or boat in which laden. (there are bushes in a quarter.) a window tax replaced the hearth tax. these duties were s. on dwelling houses, increased by d. per window for houses with - windows, and increased by d. per window for houses with - windows, and increased by s. per window for houses with or more windows, per year to be paid by the occupant. these were increased three more times, until the dwelling house duty was s. and the duty for or more windows was s. another duty for war was that on imported starch, certain imported clothes, cards, dice, soap, vellum, parchment, and paper made in the realm ( d.- s. d. per ream depending on quality) or imported ( - s. per ream). for pamphlets and newspapers made in the realm there was a duty of d. per sheet and d. for every advertisement. when the duty was paid, the paper was stamped. the penalty for nonpayment was pounds for sellers and pounds for those writing or printing on the paper. later, there was a penalty of imprisonment in a house of correction up to three months for sellers or hawkers of pamphlets or newspapers, and the apprehender received a reward of s. a parson marrying a couple without publishing banns or license could forfeit pounds. not paying duties was punishable by various forfeitures of money. officers for duties could search warehouses on suspicion of concealment of coffee, tea, chocolate, or cocoa beans with an intent to avoid duties after making an oath before a duty commissioner or justice of the peace setting forth the grounds of such suspicion. a special warrant could be issued authorizing the officer to seize such goods. wars were funded not only by some duties, but by lotteries and short-term funding purchased at % yearly interest from the bank of england and by long-term funding by the sale of annuities. county militias could be raised and called out to march together in order to be better prepared to suppress insurrections or invasions. their horsemen were to be provided with broad sword, a case of pistols with inch barrels, a carabine with belt and bucket, a saddle, and a bit and bridle. each foot soldier was to be provided with a bayonet, a cartouch-box, and a sword. in the militia act of , there were quotas for each parish, to be chosen by lot from lists of men - years old. after militia service for three years, one could not be called again until by rotation, and, if married, he was allowed to practice any trade in which he was able in any town or place. while he was in the militia, his parish had to pay an allowance to his family, if distressed, the usual price of an agricultural laborer, according to the number and ages of the children. quakers could provide a substitute or pay money to defray expenses of a substitute for three years. exempt were peers, commissioned officers in royal army or royal castle, other military personnel, members of either university, clergymen, teachers of any separate congregation, constables and peace officers, and watermen of the thames river. this militia act was due to an invasion scare in because great britain then had no allies on the continent. the old strategy of maintaining a small army of , men and relying on volunteers had really depended on england's allies to tie down france's land forces. the militia act of was designed to reassure squires they would not be used as adjuncts to the army. only those with much property would be officers. enlistees could still carry on their trades and jobs. costs were to be from general taxation rather than by locality. but it was almost impossible to get officers and there were many riots when parish authorities tried to draw up lists of those liable to serve. in the navy prevented french invasion. able-bodied men without a calling, employment, or visible means of maintenance or livelihood may be searched for and conscripted into the army. volunteers who enlist were to be paid s. and were not to be taken out of her majesty's service by any process other than for some criminal matter. king george ii was the last king to lead his troops into battle. later, parishes were given s. for every soldier they summoned. also, persons who had a vote for member of parliament were exempted. whipping was the usual punishment for offenses. a soldier who deserted or joined in any mutiny or sedition in the royal army within the realm was to suffer death or any other punishment determined by court martial. in , a soldier (later, or a marine) who slept at his post, left his post before being relieved, communicated with any rebel or enemy, struck or disobeyed any superior officer could suffer death, including those soldiers in america. during war, chief officers of towns quartered and billeted royal army officers and soldiers in inns, livery stables, alehouses, and victualing houses for d. a day, but not in any private house without consent of the owner. from to , the army regiments were split up and scattered among the ale-houses of small towns for maintenance; this was to disperse the soldiers. it was easier to count them, thereby keeping a check on their number, which might be exaggerated if they were in large groups in barracks. the towns protested having to maintain soldiers and town magistrates imposed severe penalties for small offenses by soldiers. their drunkenness and violence were not tolerated as it was for ordinary people. their officers not being with them, the soldiers retaliated with troublesomeness. as of english troops could be quartered in unoccupied houses or barns and supplied with necessities such as bedding, firewood, candles, vinegar, salt, cooking utensils, and beer or cider. the royal hospital gave pensions to maimed and worn out soldiers treated there. sailors had more status than soldiers because they had regular work as seamen in times of peace and they did not remind the people of the idea of a standing army, which they had hated especially since cromwell. justices of the peace, mayors, and other officers could bind boys as apprentices to sea service if they were at least ten and their parents were chargeable to the parish or begged for alms. this indenture to the masters or owners of ships lasted until the boy reached . the boy's parish paid s. for clothing and bedding for such sea service. no such apprentice could be impressed into the navy until at least years of age. master and owners of ships that carried - tuns had to take one such apprentice and one more boy for the next tuns, and one more boy for every tuns over tuns, or else forfeit pounds to the boy's parish. boys voluntarily binding themselves to such sea service were exempt from impressment for the next three years. this was to increase the number of able and experience mariners and seamen for the navy and for the trade and commerce of the nation. no masters or commanders of merchant ships were to proceed on a voyage beyond the seas without first agreeing in writing on wages with the seamen, except for apprentices. such agreement had to be signed by the seamen. offenders were to forfeit pounds per seaman, which sum went to the use of greenwich hospital. any seaman leaving the ship before being discharged in writing was to forfeit one month's pay because too many left the ship before it was unladen. there were some ships of tons. the steering wheel had been introduced because a sudden heavy sea could wrest a tiller from the hands of the helmsman. triangular head-sails with jib boom and stay-sails on stays between masts were in use so that ships could sail closer into the wind. the length of ships was still determined by the same length of trees that could be grown. sailing ships were still vulnerable to a lee shore. latitude was easy to determine using the reflecting octant invented by john hadley in , and a sextant invented in , with mirrors and a small telescope to measure the angle between a celestial body such as the sun or north star and the horizon. but longitude could not be determined with any degree of accuracy. one method relied on accurate predictions of the future position of the moon as observed from a fixed reference point, such as greenwich. by precisely observing the local time of the moon's occultation of a known star at a particular place, and looking up in a table the predicted time of the event at greenwich, one could approximate the time difference of the place from greenwich. there were so many shipwrecks on this account that the government offered a reward to anyone who found a way to measure longitude accurately. in carpenter and clockmaker john harrison made the chronometer to do this with an accuracy of / seconds per month, and received , pounds. he was promised , pounds to explain the principle of his timekeeper and build three more. the chronometer kept time with extreme accuracy and was mounted to remove the effect of the ship's motion. to find a ship's position, a navigator noted the time and measured the positions of certain stars. he compared these positions with tables that showed the stars' positions at greenwich mean time, and then calculated the ship's position. officer positions were no longer bought, but were subject to examination for a minimum of knowledge, especially in navigation. in the naval academy was established. boys entered at age to and spent two or three years there. only about % of the crew of navy ships were volunteers. many were gaolbirds, having chosen the navy over more gaol time for debt. press gangs seized men in the port towns and from ships coming into harbor. from % to % of the crew were foreigners, many of these pressed men. about , the marine society was founded for training and placing poor boys in work in naval and merchant ships. this not only supplied men and boys for the navy, but saved boys from a life of vagrancy and crime. these boys usually became reliable and obedient sailors. the life of a sailor was a hard one, requiring much strength. sailors did not know how to swim, so falling overboard usually meant death. flogging was the usual punishment in the navy, even for small offenses. the amount of flogging due for each offense rose over time. if flogging were fatal, there would be an inquiry and occasionally punishment. a sailor's meals were usually hard bread invested with weevils and maggots, dried or salted meat or fish, and small quantities of oatmeal, butter, and cheese. many sailors had scurvy or other deficiency diseases. experiments with lime and lemon juice as remedies for scurvy were made around , but were not used in the navy until about . many more sailors died from these diseases than from battle. rum and water was a daily ration introduced in . the ordinary sailor was paid about one pound a month, a rate established in s and now out of date. this was not in cash, but in a ticket which entitled him to payment in full if he presented it at the pay office in london, but was subject to swinging deductions if he tried to cash it in another port. prize money from conquered ships was substantial. to encourage seamen to enter the navy, parliament provided that it be divided among flag officers, commanders, other officers, seamen, marines, and soldiers on board every ship of war, including private ships commissioned by the admiral, as directed by the king, or as agreed with the owner of a private ship. it included an enemy's ships, and goods and arms on the ships or in fortresses on the land. there was also bounty money for enemy ships taken or destroyed. for retaking or salvaging english goods taken by the enemy, / th their value was to be paid. privateers colluding with others to fraudulently take their merchant ships by were to forfeit their ships, with / rd going to the person who made the discovery and prosecuted. later, any able seaman volunteering for the navy was to receive pounds bounty. any seaman volunteering for the navy was to receive a bounty of pounds. if a navy seaman was killed or drowned, his widow was to receive a year's pay as bounty. no seaman in a merchant ship was to receive more than s. per month because of the present war. still later, anyone who has run goods or avoided customs was excused and indemnified if he enlisted in the navy as a common sailor for three years. those under or over were made exempt from impressment into the king's service. the time of service was limited to five years if the serviceman so demanded. worn out and decrepit seamen no longer being treated at the royal hospital for seamen at greenwich are to receive a pension as determined by the hospital. in war, the navy favored blockading tactics over attack by fireships, which grew obsolete. in peace, when not used in convoys to remote lands, many ships of war were used as cruisers to guard the coast, to trade, and to accompany merchant ships going out and returning home. about , marine forces of the navy were raised and quartered on shore. no war ship may carry goods except gold, silver, and jewels and except the goods of a ship in danger of shipwreck or already shipwrecked. the king was authorized to prohibit the export of gunpowder, saltpeter, ammunition, and arms. when a ship had been forced on shore or stranded on the coast, it had been the practice for people to plunder it and to demand high payment for salvaging its goods. so a statute required that salvage only be done by sheriff, mayors, and other officials. a person who defaced the marks on goods or hindered the saving of the ship had to pay double satisfaction to the person aggrieved and spend months at hard labor in a house of correction. if a person unduly carried off goods, he forfeited treble damages. if he made a hole in the ship or stole the pump from the ship, he was guilty of felony without benefit of clergy. the owner of the island of skerries was allowed to erect a lighthouse and charge passing ships other than navy ships d. per tun. only pilots examined and admitted into the society of pilots and, if no such pilot is readily available, a ship's own owner, master, or mate was to pilot ships up the thames river, or else forfeit pounds for the first offense, pounds for the second, and pounds thereafter. any pilot losing a ship was no longer to be a pilot. there must be at least qualified pilots. the prices of piloting were pounds s. for ships drawing feet of water, and s. more for each additional foot drawn up to pounds s. for ships drawing feet of water. to preserve navigation, ships are not to throw any ballast, filth, rubbish, gravel, earth, stone, or filth into rivers or ports where the tide or water flows or runs or else forfeit s.- pounds. ships on the thames river could take as ballast to stabilize a ship without cargo: dung, compost, earth, or soil from laystalls in london. there was a toll on ships entering the port of london to pay for repairs to its walls. many persons insuring ships for large premiums became bankrupt, thus ruining or impoverishing many merchants and traders. so the king was authorized to grant charters to two distinct corporations for the insurance of ships, goods, and merchandise or going to sea or for lending money upon bottomry. each corporation had to pay , pounds to the exchequer and to have sufficient ready money to pay for losses insured by them. they were to raise capital stock and could make calls of money from their members in proportion to their stocks for any further money required. any owner, master, or mariner who cast away, burned, or otherwise destroyed a ship to the prejudice of underwriters of policies of insurance or of any merchants whose goods have been loaded on the ship was to suffer death. the owners of ships are not liable for losses by reason of theft without their knowledge by the master or mariners of goods beyond the value of the ship. this is to prevent the discouragement of owning ships. the insurance of merchant ships must give salvage rights [rights to take what may be left of the ships insured after paying the insurance on them] to the insurer. a lender on bottomry shall have benefit of salvage. no insurance may be for a greater amount than the value of one's interest in the ship or in the goods on board. no waterman carrying passengers or goods for hire e.g. by wherryboat, tiltboat, or rowbarge, on the thames river may take an apprentice unless he is a housekeeper or has some known place of abode where he may keep such apprentice or else forfeit ten pounds, and if he can't pay, do hard labor at the house of correction for - days. also he may not keep the apprentice bound to him. no apprentice may be entrusted with a vessel until he is if a waterman's son and if is he the son of a landman, and he has had at least two years' experience. none but freemen (i.e. one having served an apprenticeship of seven years) may row or work any vessel for hire or be subject to the same punishment. this is to avoid the mischiefs which happen by entrusting apprentices too weak, unable, and unskillful in the work, with the care of goods and lives of passengers. later amendment required that apprentices be age to and that there be no more than passengers, with the penalty of transportation if there were over and one drowned. no boat on the thames river may be used for selling liquors, tobacco, fruit, or gingerbread to seamen and laborers because such has led to theft of ropes, cables, goods, and stores from the ships. excepted are boats registered at the guilds of trinity and of st. clement, but they must show their owner's name and can only operate in daylight hours. the penalty is forfeiture of the boat. all ships coming from places infected with the plague shall be quarantined and any person leaving a quarantined ship shall return and later forfeit pounds, of which / may go to the informer, the rest to the poor. this was later raised to pounds and six months in prison, and if the person escaped, he was to suffer death. also later, a master of a ship coming from infected places or having infected people on board was guilty of felony and was to forfeit pounds. if he did not take his vessel to the quarantine area on notice, he was to forfeit a further pounds (later pounds) and the ship, which could then be burned. the king was authorized to prohibit commerce for one year with any country infected by the plague and to forbid any persons of the realm from going to an infected place. by , there was a clear distinction between a king's private income and the crown's public revenue. from , the king's treasurer as a matter of routine submitted annual budgets to parliament. he was usually also the leader of the house of commons and the chancellor of the exchequer. proclamations by the crown were more restricted to colonial and foreign affairs, to executive orders, and to instructions to officials. the high offices included the chancellor, keeper, president of the council, privy seal, treasurer, and two secretaries of state, who were in charge of all foreign and domestic matters other than taxation, one for the north and one for the south. (wolsey had been the last chancellor to rule england; thereafter the chancellor had become more of a judge and less of a statesman.) other offices were: paymaster general, secretary of war, and treasurer of the navy. starting with the monarch, government positions were given by patronage to friends and relatives, or if none, to the highest bidder. these offices were usually milked for fees and employed deputies, clerks, and scribes who worked for long hours at very modest wages. most people believed that the offices of power and influence in the realm belonged to the nobility and gentry as indubitably as the throne belonged to the king. assaulting, wounding, striking, or trying to kill a member of the privy council engaged in his duties was punishable by death without benefit of clergy. civil and military commissions, patents, grants of any office or employment, including justice of assize, justice of the peace, court writs, court proceedings continued in force for six months after a king's death, unless superceded in the meantime. the king's ministers were those members of his privy council who carried out the work of government. by distributing patronage, the ministers acquired the influence to become leading members of the house of commons or the house of lords. they made policy, secured the king's consent, and then put through the necessary legislation. the king was to act only through his ministers and all public business was to be formally done in privy council with all its decisions signed by its members. the king gradually lost power. the last royal veto of a parliamentary bill was in . by , the privy council ceased making decisions of policy. instead a cabinet not identified with any particular party was chosen by the queen, who presided over their meetings, which were held every sunday. it dealt with parliament. in , the number of peers in the house of lords was fixed, so that the crown could create no more. about , robert walpole, son of a country squire, who came to be first minister of the crown and the leader of the whigs, organized the cabinet so that it was of one view. he led it for twenty years and thus became the first prime minister. he was brilliant at finance and lessened taxation. he restored trust in the government after the south sea bubble scandal. he was successful in preserving the peace with other nations and providing stability in england that led to prosperity. the whigs opposed a standing army and over-reaching influence of the crown. they espoused the liberty of individual subjects. their slogan was "liberty and property". they generally favored foreign wars. members of the parliament felt responsible for the good of the whole country instead of accounting to their electors, but self- interest also played a part. leading commercial magnates of the realm sought to be members of parliament or governors of the bank of england so they could take up government loans at advantageous rates, snap up contracts to supply government departments at exorbitant prices, and play an important part in deciding what duties should be charged on what goods. about % of the population could vote. voting was open, rather than by secret ballot. seats in parliament could normally be bought either by coming to an arrangement with some landowner who had the right to nominate to a closed seat or by buying enough votes in constituencies where the electorate was larger and the contest more open. factory owners and leading landowners sat together on committees drawing up plans for public works such as canal building, obtained the necessary permits from public authorities and organized the whole enterprise. in , parliament was allowed to last for seven years unless sooner dissolved by the king because of the expense and tumult of elections, which frequently occasioned riots, and sometimes battles in which men were killed and prisoners taken on both sides. politics had become a career. members of parliament could not be arrested while parliament was in session. as of , electees to the commons had to have pounds annual income for knights or pounds annually for burgesses. this did not include the eldest son or heir apparent of any peer or lord of parliament or any person with the above qualifications. the universities were exempted. as of , a person electing a member of the commons had to swear or affirm that he had not received any money, office, employment, or reward or promise of such for his vote. if he swore falsely, it was perjury and he was to forfeit pounds and his right to vote. later, voters for member of parliament had to have residence for a year. still later, voters were required to have been freemen of the city or town for one year or else forfeit pounds, except if entitled to freedom by birth, marriage, or servitude according to the custom of such city or town. voters were still required to have a freehold of land of s. a year income, but holders of estates by copy of court roll were specifically precluded from voting or else forfeit pounds. in , since unauthorized persons have intruded into assemblies of citizens of london and presumed to vote therein, the presiding officer shall appoint clerks to take the poll and oath required for elections for parliament, mayor, sheriffs, chamberlains, bridgemasters, and auditors of chamberlains. the oath is that one is a freeman of london, a liveryman of a certain named company, has been so for months, and names his place of abode. the oath for alderman or common council elections is that the voter is a freeman of london and a householder in a named ward paying scot of at least a total of s. and bearing lot. a list of the voters and of persons disallowed is to be given to candidates by the presiding officer. soldiers may not be quartered within miles of a place of election so that the election is kept free. voters in public corporations must have held their stock for six months before voting them to discourage splitting stock and making temporary conveyances thereof to give certain people more of a vote, e.g. in declaring dividends and choosing directors. ambassadors were made immune from arrest, prosecution and imprisonment to preserve their rights and privileges and protection by the queen and the law of nations. the supporters of the bill of rights society was founded and paid agents to give speeches throughout the country and used the press for its goals. james burgh demanded universal suffrage in his book: "political disquisitions". in there was union with scotland, in which their parliaments were combined into one. the country was known as great britain. the last scottish rebellion resulted in attainder of its leaders for levying war against the king. in , they were given the chance to surrender by a certain date, and receive a pardon on condition of transportation. in , anyone impeached by the commons of high treason whereby there may be corruption of the blood or for misprison of such treason may make his defense by up to two counsel learned in the law, who shall be assigned for that purpose on the application of the person impeached. in , counsel may interrogate witnesses in such cases where testimony of witnesses are not reduced to writing. there was a steady flow of emigrants to the american colonies, including transported convicts and indentured servants. delaware became a colony in . in , the king bought carolina from its seven proprietors for , pounds apiece. person having estates, rights, titles, or interest there, except officers, were allowed by parliament to sue the king with the court establishing the value to be paid, but no more than at a rate of , pounds per / of the property. georgia was chartered in on request of james oglethorpe, who became its first governor, as a refuge for debtors and the poor and needy. it established the episcopal church by law. in carolina and georgia were allowed to sell rice directly to certain lands instead of to england only. later, sugar was allowed to be carried directly from america to european ports in english ships without first touching some english port. foreigners who had lived in the american colonies for seven years, and later foreigners who served two years in the royal army in america as soldiers or as engineers, were allowed to become citizens of great britain on taking oaths of loyalty and protestantism. this included quakers and jews. the jews could omit the phrase "upon the true faith of a christian." in , indentured servants in america were allowed to volunteer as soldiers in the british army serving in america. if his proprietor objected, the servant was to be restored to him or reasonable compensation given in proportion to the original purchase price of his service and the time of his service remaining. there was much competition among countries for colonies. quebec and then montreal in in canada were captured from the french. about james cook discovered new zealand and australia; his maps greatly helped future voyages. the english east india company took over india as its mogul empire broke up. manufacturing in the american colonies that would compete with british industry was suppressed by great britain. there were increasing duties on goods imported into the colonies and restrictions on exports. in , parliament imposed duties on foreign imports going to america via britain: to wit, sugar, indigo, coffee, certain wines, wrought silks, calicoes, and cambrick linen. foreign vessels at anchor or hovering on colonial coasts and not departing within hours were made liable to be forfeited with their goods. uncustomed goods into or prohibited goods into or out of the colonies seized by customs officials on the ship or on land and any boats and cattle used to transport them occasioned a forfeiture of treble value, of which / went to the king, / went to the colonial governor, and / went to the suer. any officer making a collusive seizure or other fraud was to forfeit pounds and his office. in , there was imposed a duty on papers in the colonies to defray expenses of their defense by the british military. the duty on every skin, piece of vellum [calf skin] or parchment, and sheet of paper used in any law court was d.- pounds. there were also duties on counselor or solicitor appointments of pounds per sheet. duties extended to licenses for retailing spirituous liquors and wines, bonds for payment of money, warrants for surveying or setting out of any lands, grants and deeds of land, appointments to certain civil public offices, indentures, leases, conveyances, bills of sale, grants and certificates under public seal, insurance policies, mortgages, passports, pamphlets, newspapers (about s. per sheet), advertisements in papers ( s. each), cards, and dice. the papers taxed were to carry a stamp showing that the duties on them had been paid. parliament thought the tax to be fair because it fell on the colonies in proportion to their wealth. but the colonists saw this tax as improper because it was a departure from the nature of past duties in that it was an "internal tax". all of the original thirteen american colonies had adopted magna carta principles directly or indirectly into their law. the stamp duties seemed to the colonists to violate these principles of liberty. patrick henry asserted that only virginia could impose taxes in virginia. schoolmaster and lawyer john adams in massachusetts asserted that no freeman should be subject to any tax to which he had not assented. in theory, colonists had the same rights as englishmen per their charters, but in fact, they were not represented in parliament and englishmen in parliament made the laws which affected the colonists. they could not be members of the house of lords because they did not have property in england. there were demonstrations and intimidation of stamp agents by the sons of liberty. merchants agreed to buy no more goods from england. the stamp duty was repealed the same year it had been enacted because it had been "attended with many inconveniences and may be productive of consequences greatly detrimental to the commercial interests of these kingdoms". to counter the wide-scale running of goods to avoid the customs tax, the customs office was reorganized in to have commissions resident in the colonies and courts of admiralty established there to expedite cases of smuggling. this angered the colonists, especially boston. boston smuggling had become a common and respectable business. it was the port of entry for molasses from the west indies from which new england rum was made and exported. the entire molasses trade that was essential to the new england economy had been built upon massive customs evasions; royal customs officials had participated in this by taking only token customs for the sake of appearance in london and thereby had become rich. in parliament imposed a duty of d. per pound weight on tea and duties on reams of paper, glass, and lead into the colonies. these import duties were presented as external rather than internal taxes to counter the rationale the colonies gave against the stamp tax. but these items were of common use and their duties raised the cost of living. the king's customs officials were authorized to enter any house, warehouse, shop, or cellar to search for and seize prohibited or uncustomed goods by a general writ of assistance. these writs of assistance had been authorized before and had angered bostonians because they had been issued without probable cause. in paxton's case of , the massachusetts superior court had declared legal the issuance of general writs of assistance to customs officers to search any house for specific goods for which customs had not been paid. the authority for this was based on the parliamentary statutes of and authorizing warrants to be given to any person to enter, with the assistance of a public official any house where contraband goods were suspected to be concealed, to search for and seize those goods, using force if necessary. they were called "writs of assistance" because the bearer could command the assistance of a local public official in making entry and seizure. a "general" writ of assistance differed from a "special" writ of assistance in that the latter was issued on a one-time basis. the general writ of assistance in boston was good for six months after the death of the issuing sovereign. authority relied on for such writs was a statute giving customs officers in the colonies the same powers as those in england, a act by the massachusetts provincial legislature giving the superior court of massachusetts the same such power as that of the exchequer, and the massachusetts' governor's direction about to the massachusetts superior court of judicature to perform the function of issuing such warrants. the massachusetts court issued them in the nature of the writs of assistance issued from the exchequer court in england, but had issued them routinely instead of requiring the showing of probable cause based on sworn information that the exchequer court required. few judges in the other american colonies granted the writ. seditious libel trials in england and the colonies were followed closely and their defendants broadly supported. john wilkes, a member of the house of commons, published a criticism of a new minister in . he called king george's speech on a treaty "the most abandoned instance of ministerial effrontery ever attempted to be imposed on mankind". after being found guilty of seditious libel, he again ran for the house of commons, and was repeatedly elected and expelled. he was subsequently elected alderman, sheriff, and mayor of london. in , alexander macdougall was voted guilty of seditious libel by the new york colonial assembly for authoring a handbill which denounced a collusive agreement by which the assembly voted to furnish supplies for the british troops in new york in exchange for the royal governor's signature to a paper-money bill. when he was arrested, the sons of liberty rallied to his support, demanding freedom of the press. benjamin franklin's brother had been imprisoned for a month by the massachusetts assembly for printing in his newspaper criticisms of the assembly. he was forbidden to print the paper. benjamin supported him by publishing extracts from other papers, such as "without freedom of thought, there can be no such thing as wisdom; and no such thing as public liberty without freedom of speech... whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech; a thing terrible to public traitors." by statute of , the new york house of representatives was prohibited from meeting or voting until they provisioned the king's troops as required by law. in , harvard college seated its students in class in alphabetical order instead of by social rank according to birth. by , the colonies' boycott of british goods in protest of the new duties cause these imports to decline so much that british merchants protested. so the duties were dropped, except for that on tea, which was retained as a matter of principle to assert the power of the crown to tax the colonies. then in the east india company was allowed to sell tea directly to the colonies to help it avoid bankruptcy. the effect of this was to lower the cost of tea in the colonies by avoiding the english middleman, and the american middleman, but also to give the east india company a monopoly. the colonies felt threatened by this power of britain to give monopolies to traders. when the tea ships arrived in boston in late , bostonians held a town meeting and decided not to let the tea be landed. they threw this cargo of tea, worth about , pounds, overboard. this boston tea party was a direct challenge to british authority. in response, parliament closed the port of boston until compensation was made to the east india company. by statute of , no one was to enter or exit the port of boston or else forfeit goods, arms, stores, and boats that carried goods to ships. every involved wharf keeper was to forfeit treble the value of the goods and any boats, horses, cattle, or carriages used. ships hovering nearby were to depart within six hours of an order by a navy ship or customs officer or be forfeited with all goods aboard, except for ships carrying fuel or victuals brought coastwise for necessary use and sustenance of inhabitants after search by customs officers, and with a customs official and armed men for his defense on board. this statute was passed because of dangerous commotions and insurrections in boston to the subversion of the king's government and destruction of the public peace in which valuable cargoes of tea were destroyed. later, the governor was given the right to send colonists or magistrates charged with murder or other capital offenses, such as might be alleged to occur in the suppression of riots or enforcement of the revenue laws, to england or another colony for trial when he opined that an impartial trial could not be had in massachusetts bay. a later statute that year altered the charter of massachusetts bay province so that the choice of its council was transferred from the people to the king to serve at his pleasure, and the appointment and removal of judges and appointment of sheriffs was transferred to the governor to be made without the consent of the council. this was due to the open resistance to the execution of the laws in boston. further, no meeting of freeholders or inhabitants of townships was to be held without consent of the governor after expressing the special business of such meeting because there had been too many meetings that had passed dangerous and unwarranted resolutions. also, jurors were to be selected by sheriffs rather than elected by freeholders and inhabitants. the commander of the british troops in north america was made governor. king george thought that the colonists must be reduced to absolute obedience, even if ruthless force was necessary. the people of massachusetts were incensed. they were all familiar with the rights of magna carta since mandatory education taught them all to read and write. (every township of fifty households had to appoint one to teach all children to read and write. every one hundred families had to set up a grammar school.) the example in massachusetts showed other colonies what england was prepared to do to them. also disliked was the policy of restricting settlement west of the allegheny mountains; the take over of indian affairs by royal appointees; the maintenance of a standing army of about , men which was to be quartered, supplied, and transported by the colonists; and expanded restrictions on colonial paper currencies. the virginia house of burgesses set aside the effective date of the port bill as a day of prayer and fasting, and for this was dissolved by its governor. whereupon its members called a convention of delegates from the colonies to consider the "united interests of america". this congress met and decided to actively resist british policy. as opposition to british rule spread in the colonies, a statute was passed stating that because of the combinations and disorders in massachusetts, new hampshire, and connecticut, and rhode island to the destruction of commerce and violation of laws, these inhabitants should not enjoy the same privileges and benefits of trade as obedient subjects and that therefore no goods or wares were to be brought from there to any other colony, and exports to and imports from great britain were restricted, on pain of forfeiting the goods and the ship on which they were laden. there vessels were restricted from fishing off newfoundland. these conditions were to be in force until the governors were convinced that peace and obedience to laws was restored. later in , these trade restrictions were extended to new jersey, pennsylvania, maryland, virginia, and south carolina. in , since all the thirteen colonies had assembled an armed force and attacked british forces, these trade restrictions were extended to delaware, new york, georgia, and north carolina and expanded to prohibit all trade during the present rebellion to prevent assistance to them. war had started; the new rifle was used instead of the musket. by statute of , anyone harboring of army or marine deserters in the colonies must forfeit pounds, and persuading a soldier or marine to desert drew a forfeiture of pounds or else up to six months in prison without bail and one hour in the pillory on market day. bounties were made available to vessels from and fitted out in great britain for newfoundland fishing. any shipmaster carrying as passengers any fisherman, sailor, or artificer to america shall forfeit pounds because such men have been seduced from british fishing vessels in newfoundland, to the detriment of the fishing industry. the many years of significant achievements of the colonists, such as taming the wilderness and building cities, had given them confidence in their ability to govern themselves. the average colonial family had a better standard of living than the average family in england. many of its top citizenry had reached their positions by hard work applied to opportunities for upward mobility. with the confidence of success, the american colonies in declared their independence from britain, relying on the principles stated by john locke and jean jacques rousseau that man was naturally free and all men equal, and that society was only created with their consent. issac's newtons's unified laws of the universe had contributed to this idea of a natural law of rights of men. thomas jefferson wrote a declaration of independence which listed the colonies' grievances against the crown which reiterated many of the provisions of the petition of right and bill of rights, specifically dispensing with and suspending laws, maintaining a standing army and quartering troops without legislative consent, imposing arbitrary taxation, encouraging illegal prosecutions in strange courts, and corrupting the jury process. it was adopted on july , . - the law - trade and the economy boomed in time of war, buttressed by the increased production in the coal, iron, steel, shipbuilding, and cloth industries. but peace brought depression and much misery, including the imprisonment of many debtors. when very many were imprisoned, statutes allowed release on certain conditions. after assets were paid to creditors in proportion to the amounts owed to them, debtors could be discharged from prison if they owed no party more than pounds (later no restriction and still later, pounds, and even later, pounds, and in , pounds, and in , pounds) and take an oath that they have less than pounds ( in ) worth of property (including s. in money in ), because there were so many debtors in prison who were impoverished by war losses and other misfortunes in trades and professions, and were totally disabled from paying their creditors, and they and their families either starved or became a burden to their parishes and became an occasion of pestilence and other contagious diseases. exempted were those debtors for whom there was an objection by one of their creditors who paid for the maintenance of that debtor in prison. prisoners discharged were also discharged from chamber [cell] rent and gaolers' fees, but not from their debts to creditors. during war, no male prisoner could be discharged unless he enlisted in the royal army or navy until the end of the war. in , the discoverer of any asset of a debtor not listed by that debtor was to receive a reward of pounds per hundred, and anyone concealing an asset of a debtor was to forfeit pounds as well as double the value of the asset. a person declared bankrupt shall subsequently be examined from time to time as to their goods, money, or other effects or estate to prevent the frauds frequently committed by bankrupts. a default or willful omission shall be deemed felony without benefit of clergy. a bankrupt or other person concealing goods to the value of at least pounds or his books with intent to defraud is a felony without benefit of clergy. a debtor refusing to come to court for examination or hiding assets of more than pounds is guilty of felony and his goods and estate shall be divided among his creditors. later, a bankrupt coming to an examination was allowed to keep (or / or ) pounds per , up to a maximum of (or or , respectively) pounds if he paid his creditors s. (or s. d. or s. respectively) per pound. his future estate was still liable to creditors (excepting tools of trade, necessary household goods, bedding, furniture, and wearing apparel of the family up to pounds) if it could pay every creditor s. per pound. if he didn't pay this, he could be imprisoned. bankrupts excepted from the benefits of this act are those who lost pounds in any one day or pounds in the preceding year from gambling or wagers. no goods or chattels on lands or tenements which are leased for life or lives or term of years or at will or otherwise "shall be liable to be taken by virtue of any execution on any pretence whatsoever unless the party at whose suit the said execution is sued out shall before the removal of such goods from off the said premises by virtue of such execution or extent pay to the landlord" all money due as rent. if the lessee fraudulently or clandestinely conveys or carries off his goods or chattels with intent to deprive the landlord or lessor from distraining the same for arrears of such rent, the lessor or landlord may, within five days, seize such goods and chattels as a distress for the arrears of rent and may sell them as if actually distrained on the premises. every person under and every woman-covert who is entitled by descent or will to be admitted tenants of any copyhold lands or hereditaments may be ordered to appear by a guardian or attorney to be compelled to be so admitted and to pay such fines as are owing by the lands. if one is so admitted, but does not pay, the lord may enter the lands and receive its rents (but not sell timber) until the fine and costs are satisfied, after which the land is to be given back and may not be forfeited to the lord. tenants holding over any lands after their term expired and after demand for possession was made shall pay double the yearly value of such to the landlord. the landlord may reenter and eject a tenant if rent is in arrears for / year. landlords may distrain within days and sell goods and chattels fraudulently or clandestinely carried off the premises by renters in arrears of rent. this applies to goods sold to others privy to the fraud. they may use force if necessary to break open houses upon giving a justice of the peace reasonable grounds to suspect and to break open other buildings in the presence of a constable. the renter is to forfeit double the value of such. the landlord may distrain the renter's cattle on any common or any growing grain, roots, or fruit. attornments of renters made to strangers who claim title and turn the landlord out of possession are void. chief leases may be renewed without surrendering all the under leases. this is to prevent subtenants from delaying the renewal of the principal lease by refusing to surrender their leases, notwithstanding that they have covenanted to do so. but the rents and duties of the new subleases may not exceed those of their former leases. any person claiming a remainder, reversion, or expectancy in any estate upon a person's death, who has cause to believe that that person is dead and that the death is being concealed by the person's guardian, trustee, husband, or other person, may request yearly an order in chancery for the production of such tenant for life. upon refusal, the tenant for life shall be deemed dead. as of , all devices, legacies, and bequests made by will in great britain or the colonies had to be in writing and witnessed by three witnesses, or would be held void. no witness was to receive anything by the will that he witnessed. an accessory before or after the fact of felony may be prosecuted and tried not only if the principal accused felon has been convicted, but even if he stood mute or peremptorily challenged over persons to serve on the jury. the accessories shall be punished the same as if the principal had been attainted. buyers and receivers of stolen goods may be prosecuted and punished if they knew the goods to be stolen, even if the principal felon has not been convicted. the punishment will be as for misdemeanor by fine and imprisonment. this is to deter the counselors and contrivers of theft and other felonies and the receivers of stolen goods from taking advantage of the former rule that an accessory could not be convicted or punished unless the principal had first been attainted. and if any captain or mariner or other officer belonging to any ship willfully casts away, burns, or otherwise destroys that ship to the prejudice of its owners or merchants loading goods onto the ship, he shall suffer death as a felon. journeymen shoemakers or employees of such who sell or pawn boots, shoes, slippers, cut leather or other materials for making such goods which are not his proper goods, or exchange for worse good leather which has been entrusted to them, shall for the first offense, recompense the injured person, or if his goods are insufficient for distress, may be whipped. for the second offense, he shall be sent to hard labor in a house of correction for - days. a person who buys or receives or takes in pawn such goods shall suffer the same penalties. justices of the peace may issue warrants to search houses and buildings in the daytime if there is "just cause to suspect" such goods therein based upon information given to him under oath. anyone employed in the working up of woolen, linen, fustian, cotton, or iron manufacture who embezzles or purloins any materials for their work shall forfeit double the value of the damages done and anyone convicted thereof may be put into the house of correction until he pays, or if he can't pay, to be publicly whipped and kept at hard labor for no more than days. persons convicted of buying or receiving such materials shall suffer like penalties and forfeitures as one convicted of embezzling or purloining such materials. laborers employed in such manufacture must be paid in coin and not in cloth, victuals, or commodities in lieu thereof. leatherworkers were added with a penalty of up to double the value. later this statute was amended to include a penalty for the second offense of forfeiture of four times the value, or else hard labor at a house of correction for - months and whipping once or more in the market town. like penalties were given for buyers of such material knowing it to be false. one who neglected finishing and delivering such goods because he was leaving this employment was to be sent to the house of correction for up to one month. the penalty for possessing or offering to sell any hare, pheasant, partridge, moor or heath game or grouse by any carrier, innkeeper, victualer, or alehouse keeper is pounds, / to the informer, and / to the poor of the parish. if unable to pay, the offender shall be placed in the house of correction for three months without bail. unauthorized persons keeping or using greyhounds, setting dogs, or any engine to kill game shall suffer the same penalties. in , anyone killing hare at night or using any gun, dog, or other engine to take or kill or destroy any hare, pheasant, partridge, moor game, heath game, or grouse in the night shall be whipped and also go to gaol or the house of correction for - months without bail for the first offense, and for - months without bail for any further offense. if such occurs on a sunday, the offender must forfeit - pounds or go to gaol for - months. in , no one may kill or take or possess any heath fowl or any grouse except at a limited period during the year. each manor may have only one gamekeeper allowed to kill game such as hare, pheasant, partridge and only for his household's use. this gamekeeper must be either qualified by law or a servant of the land's lord. other persons possessing game or keeping a greyhound or setting dogs or guns or other devices to kill game must forfeit them and five pounds. anyone killing or attempting to kill by shooting any house dove or pigeon shall forfeit s. or do hard labor for one to three months. excepted are owners of dove cotes or pigeon houses erected for the preservation and breeding of such. a gamekeeper or other officer of a forest or park who kills a deer without consent of the owner must forfeit pounds per deer, to be taken by distress if necessary, and if he can't pay, he is to be imprisoned for three years without bail and set in the pillory for two hours on some market day. a later penalty was transportation for seven years. anyone pulling down walls of any forest or park where deer are kept, without the consent of the owner, must forfeit pounds and if he can't pay, he is to be imprisoned for one year without bail and spend one hour in the pillory on market day. later, the killing of deer in open fields or forests was given the same penalties instead of only the monetary penalty prescribed by former law (former chapter). the penalty for a second offense was given as transportation for seven years. anyone beating or wounding a gamekeeper with an intent to kill any deer in an open or closed place was to be transported for seven years. anyone who apprehends and prosecutes a person guilty of burglary or felonious breaking and entering any house in the day time shall be rewarded pounds in addition to being discharged from parish and ward offices. anyone who feloniously steals or aids in the stealing of goods, wares, or merchandise over s. from a shop, warehouse, coach house, or stable (by night or by day, whether the owner is present or not, whether there is a break in or not) may not have benefit of clergy. anyone stealing goods of s. worth from a ship on any river or in any port or creek or from any wharf may not have benefit of clergy. anyone receiving or buying goods they know to be stolen or who harbors or conceals any burglars, felons, or thieves knowing them to be such shall be taken as accessory to the felony and shall suffer death as punishment if the principal felon is convicted. a person taking money or reward for helping any other person to stolen goods or chattels is guilty of felony unless he brings the thief to trial. as of , any person convicted of grand or petit larceny or any felonious stealing or taking of money, goods, or chattels, either from the person or from the house of any person who is entitled to benefit of clergy and who is liable only to whipping or burning in the hand may instead be transported to the american colonies to the use of any person who will pay for his transportation for seven years. any person convicted of an offense punishable by death and without benefit of clergy and buyers and receivers of stolen goods may be given mercy by the king on condition of transportation to any part of america to the use of any person who will pay for his transportation, for fourteen years or other term agreed upon. returning before the expiration of the term is punishable by death. anyone assaulting another with an offensive weapon with a design to rob may be transported for seven years. any person armed with swords, firearms, or other offensive weapons and having their faces blackened or otherwise being disguised, who appears in any forest, park, or grounds enclosed by a wall or fence wherein deer are kept (including the king's deer) or in any warren or place where hares or conies are kept or in any high road, open heath, common, or down, or who unlawfully hunts, wounds, kills, or steals any deer or steals any hare or rabbit or steals any fish out of any river or pond or who unlawfully and maliciously breaks down the head or mound of any fish pond, causing the loss of fish, or who unlawfully and maliciously kills, maims, or wounds any cattle, or who cuts down any trees planted in any avenue or growing in any garden or orchard for ornament, shelter, or profit, or who sets fire to any house, barn or out house [outer building], hovel, or stack of grain, straw, hay or wood, or who willfully and maliciously shoots any person in any dwelling house or other place, or who sends any letter with no signature or a fictitious signature, demanding money, venison, or other valuable thing, or who forcibly rescues any person lawfully in custody for any of these offenses, or who procures others by gift or promise of money or other reward to join with him in any such unlawful act is guilty of felony and shall suffer death without benefit of clergy. persons abetting them are also guilty of felony and shall suffer death without benefit of clergy. attainder shall not work corruption of the blood, loss of dower, or forfeiture of lands, goods, or chattel. the persons sustaining damages can recover pounds or less from the hundred, with inhabitants paying proportionately, unless one of the offenders is convicted within six months. if other hundreds have not diligently followed the hue and cry, they shall pay half such damages. in , it was required that there be notice to the constable or other officer or tythingman and public notice in the london gazette describing the robbery, offenders, and goods taken before the hundred had to pay damages. also, it did not have to pay damages if one offender was apprehended with days of publication in the london gazette, but did have to pay the apprehender pounds. in was also included letters threatening killing people or burning houses, barns or stacks of grain, hay, or straw, without any demand. also, persons who rescued such offenders from gaol were given the same penalty. later, persons obtaining money or goods by false pretenses with an intent to defraud or cheat or sending a letter without a true signature threatening to accuse any person of a crime with an intent to extort money or goods, are punishable by fine and prison, pillory, or whipping or transportation for seven years. later, no person may recover more than pounds after a hue and cry unless there are at least two witnesses to the robbery. no one may advertise a reward for return of things stolen or lost with no questions asked, because this has resulted in thefts and robberies. justices of the peace may authorize constables and other peace officers to enter any house to search for stolen venison. any person apprehending an offender or causing such to be convicted who is killed or wounded so as to lose an eye or the use of a limb shall receive pounds. any person buying suspect venison or skin of deer shall produce the seller or be punished the same as a deer killer: pounds or, if he couldn't pay, one year in prison without bail and one hour in the pillory on market day. an offender who discloses his accomplices and their occupations and places of abode and discovers where they may be found and they are subsequently convicted, shall be pardoned. anyone stealing sheep or cattle or parts thereof is a felon and shall suffer death without benefit of clergy. persons who steal or aid in stealing any lead, iron bar, iron gate, palisade, or iron rail fixed to any house or its outhouses, garden, orchard, or courtyard is guilty of felony and may be transported for seven years. in also included was copper, brass, bell-metal, and solder; buyers and receivers; and mills, warehouses, workshops, wharves, ships, barges, and other vessels. search warrants were authorized in case of suspicion. officers and solicited buyers and receivers were required to take persons who at night were reasonably suspected of having or carrying such items, to an accounting before a justice of the peace. also a notice was put in the newspaper for any owners to claim such. if the person did not give a satisfactory account of the items, he was guilty of a misdemeanor punishable by forfeiture of pounds or prison up to one month for the first offense, pounds or prison for two months for the second offense, and pounds or prison for any subsequent offense (without bail). an officer or solicited buyer or receiver who did not take a suspect to a justice of the peace was punishable by the same penalties except the amounts of forfeiture were pound, pounds, and pounds respectively. a felon who brought two buyers or receivers to justice was to be pardoned. a description of any goods and the appearance of a rogue or vagabond or idle and disorderly person shall be advertised in a public paper for identification by the owner as stolen. pawning goods without consent of the owner is punishable by forfeiture of s. or hard labor for fourteen days with whipping there. maliciously destroying river banks resulting in lands being overflowed or damaged is a felony for which one shall suffer death without benefit of clergy. later, transportation for seven years was made an alternative. all persons pretending to be patent gatherers or collectors for prison gaols or hospitals and all fencers, bearwards, common players of interludes, minstrels, jugglers, and pretended gypsies, and those dressing like egyptians or pretending to have skill in physiognomy, palm-reading, or like crafty science, or pretending to tell fortunes, and beggars, and all persons able in body who run away and leave their wives or children to the parish shall be deemed rogues and vagabonds. apprehenders of such persons bringing them before a justice of the peace may be rewarded s. any constable not apprehending such shall forfeit s. persons wandering outside the place determined by a justice of the peace to be his settlement may be whipped on the back until it is bloody or sent to hard labor at a house of correction. if he was dangerous and incorrigible, for instance as indicated by swearing falsely before a justice of the peace, he could suffer both punishments with the whipping being on three market days. if he escaped from the house of correction, it was felony. if he has been absent for more than two years, he could be put out as an apprentice for seven years in the realm, in the colonies, or in a british factory beyond the seas. included later were performers for gain from outside their parish of any play, tragedy, comedy, opera, farce or other entertainment of the stage, including performances in public places where wine, ale, beer, or other liquors are sold, or else forfeit pounds. exempted were performances authorized by the king in westminster. unlicensed places of entertainment are deemed disorderly (like bawdy houses and gaming houses) because they increase idleness, which produces mischief and inconvenience. persons therein may be seized by a constable. persons keeping such a place shall forfeit pounds. no licensed place of entertainment may be opened until : p.m. later there was an award of s. for apprehending a person leaving his wife and children to the parish, living idly, refusing to work at going rates, or going from door or placing themselves in the streets to beg. this includes begging by persons who pretend to be soldiers, mariners, seafaring men, or harvest workers. these rogues and vagabonds shall be sent to hard labor at a house of correction for up to one month. the real soldiers, mariners, seafaring men, and harvest workers shall carry official documents indicating their route and limiting the time of such passage. persons pretending to be lame who beg are to be removed. if he comes back to beg, his back may be whipped until bloody. if a constable neglects this duty, he shall forfeit s. masters of ships bringing in vagabonds or beggars from ireland or the colonies shall forfeit five pounds for each one. this money shall be used for reconveying such people back at a price determined by a justice of the peace. a master of a ship refusing to take such a person shall forfeit five pounds. these vagabonds and beggars may be whipped. anyone who profanely curses or swears shall suffer the following penalties: day laborer, common soldier, common sailor, common seaman - s., anyone else below the degree of gentleman - s., gentlemen and above - s., and for the second offense, a double fine, for further offense, a treble fine. if a person can't pay, he shall be put to hard labor at a house of correction for ten days, or if a common soldier, common sailor, or common seaman, he shall be set in the stocks for - hours. this is to prevent the provocation of divine vengeance. anyone setting up or maintaining lotteries or deceitful games must forfeit pounds, or go to prison up to months. any one who plays at such, such as by drawing lots or using cards or dice, must forfeit pounds. sales of lottery items, such as houses, lands, plate, jewels, or ships, are void and these items will be forfeited to any person who sues. such have caused many families to become impoverished, especially through their children or through the servants of gentlemen, traders, and merchants. backgammon games are exempt. later, people who lost up to ten pounds in deceitful gaming were allowed to sue to recover this money from the winners. also, anyone winning or losing ten pounds at one time or twenty pounds within hours shall be fined five times the value of such. offenders discovering others, who are convicted, are indemnified from all penalties and shall be admitted to give evidence. no one may run more than one horse, mare, or gelding in a horse race. no prize may be under pounds value. this is because a great number of horse races for small prizes have contributed to idleness, to the impoverishment of the meaner sort of people, and has prejudiced the breed of strong and useful horses. wagers and agreements in the nature of puts and refusals relating to prices of stocks or securities are void. those making or executing such agreements must forfeit pounds. those selling stock which one does not possess must forfeit pounds. brokers negotiating such agreements must forfeit pounds. only a person with an interest in the life or death of another may have insurance on this other, to prevent the mischievous kind of gaming that has been introduced. the punishment for forgery or counterfeiting or assisting in such or claiming a counterfeit item is good while knowing that it is not, with an intent to defraud is death without benefit of clergy. the punishment for perjury or subordination of perjury is hard labor in the house of correction for up to seven years or transportation for up to seven years. the punishment for altering numbers on bills of exchange or other payment papers is death. it is high treason to counterfeit the coinage. a person who tenders coin, knowing it to be false, shall spend six months in prison and acquire sureties for good behavior for the next six months. if he offends again, he shall spend two years in prison and acquire sureties for good behavior for the next two years. the third offense is felony without benefit of clergy. in , making or possessing any frame, mould, or instrument for forging paper notes of the bank of england and putting this identification thereon is felony with penalty of death without benefit of clergy. anyone who forges promissory notes, bills of exchange, or inland bills of the bank of england by engraving or etching on metal or wood "bank of england" or "bank post bill" shall go to gaol for up to six months. anyone selling gold or silver ware, vessel, plate or other item large enough to be marked which has not been marked by its maker shall forfeit pounds or be kept at hard labor up to six months. anyone counterfeiting such mark shall forfeit pounds. later, vendors of these items were required to be licensed and the penalty for counterfeiting was raised to felony for which one shall suffer death without benefit of clergy. later still, transportation for fourteen years was allowed as an alternative. if an item was not all silver, e.g. had metal underneath, pounds was to be forfeited. in , receivers of stolen jewels and gold and silver plate and watches knowing them to be stolen, in cases of burglary and highway robbery, were subject to transportation for years. apples and pears may not be sold by any measure other than a standard water measure, or else forfeit s., one-half to the informer, and one-half to the poor, except for measures sealed by the company of fruiterers. this is to decrease the suits between buyers and sellers. there shall be enough silver and gold on silver and gold plated silk thread and wire so that it does not crumble off, thereby wasting the bullion of the nation. this is also to encourage its export by making it competitive in trade with such foreign articles, which may not be imported. malt to be sold or exported must not be fraudulently mixed with unmalted grain to lower duties payable or else forfeit s. any one who adulterates coffee with water, grease, butter, and such shall forfeit pounds, / to the king, and / to the suer. walnut tree leaves, hop leaves, sycamore leaves and such may not be made to imitate tobacco leaves for sale or else forfeit s. per pound. persons near london may not make unsound, hollow, or improperly heated bricks. makers of narrow woolen cloths must weave or set in the head of every piece his initials or else forfeit one pound. this is to prevent frauds and abuses, particularly in stretching and straining the cloth. the fulling mill owner must append his seal of lead with his name and with his measurements. the searcher to be appointed must measure such cloths when wet for conformity to standard measurements and append his seal with his measurements. he may also inspect any places he chooses. in , any wool-making employee not returning all working tools and implements and wool and all materials with which entrusted back to his employer, or who fraudulently steams, damps, or waters such wool, or who takes off any mark on any piece of cloth, shall go to the house of correction for one month. if he absconds with or sells such or anyone fraudulently buys or receives such from him, a search warrant may be issued to seize any other such tools or material. if found, the possessor may be brought to account before a justice of the peace, and if his account is not satisfactory, he shall forfeit such. a search warrant may also be issued for houses on "just cause to suspect" by oath of a credible witness. for a second offense, the penalty is up to three months in a house of correction. for a third offense, the penalty is up to six months in a house of correction and public whipping. bakers must mark their bread with w for white, wh for wheaten, and h for household or else forfeit s. to the informer. in , a new assize of bread set prices for rye, barley, oats, and beans by the bushel. the prices for the three qualities of wheat, for wheaten (prized and unprized), and for household grain by the bushel were to be determined from within a statutory range by the local mayor or justice of the peace. mayors and justices of the peace were to determine a fair profit for their local bakers for all the types of bread. a miller, mealman, or baker adulterating bread was to forfeit s. pounds, part of which money could be used in publishing his name, abode, and offense in the local newspaper. later, there was a forfeiture of - s. for every ounce underweight. household bread was to be / cheaper than wheaten or forfeit - s. bread inferior to wheaten was not to be sold at a price higher than household or else forfeit up to s. if the forfeiture was not paid, it could be levied by distress, or otherwise the offender was to spend one month in gaol or a house of correction. straw to be sold in london must be sound, firmly bound in a truss, and of a given weight or else forfeit it and s. if no truss, and s. if in truss but underweight or of mixed quality. handlers must keep registers of sellers, buyers, weights, dates of sale, and prices or else forfeit - s. frame-work knitted pieces and stockings shall be marked with the correct number of threads by the master, frame-work knitter, or master hosier, or forfeit the goods and pounds. if a journeyman apprentice, or servant employ does not mark correctly, he shall forfeit the goods and s.- s. sellers of such shall forfeit the goods and pounds per piece. at every fishing season, the quantity of salt, foreign or domestic, used by a proprietor for curing fish for export shall be accounted and sworn to so that it can be compared with the quantity of fish exported by the proprietor to ensure that the salt duties are fully paid, or else forfeit pounds. if such salt is sold for other uses than curing fish, the proprietor is to forfeit s. per bushel sold and the users thereof, to forfeit s. per bushel bought, delivered, or used. if one can't pay, he is to be whipped and put to hard labor in a house of correction for up to three months. agreements between coal owners, lightermen, fitters, master or owners of ships, hindering the free sale, loading, and unloading, navigating, or disposing of coals are illegal, null, and void. this is engrossing and has caused the price of coals to go up. no coal trader or dealer may use his own lighters, barges, or other vessels to carry coals on the thames river to and from any ship and to and from any wharf, dock, or creek because this has impaired the business of the watermen and wherrymen, whose vessels must now be registered and display such mark on their hulls. no lightermen nor buyers of coals may act as agent for any master or owner of a ship importing coals into london or else forfeit pounds, because this combination has caused the price of coal to go up. selling one sort of coal for another is punishable by forfeiture of pounds. only standard size coal sacks may be used for selling coal and they must be sealed and stamped by an official at the guildhouse before sale. the mayor and aldermen of london may set the price of coals coming into this port. in other areas, justices of the peace set the prices of coals which allowed "a competent profit". if a merchant refused to sell at that price, the justice of the peace could authorize seizure and sale by officers. later, coal measurers must give the coal cart driver a ticket with the name of the sellers and consumers, the quantity and quality of the coal, its price, the date of sale, and the name of the cart driver or else forfeit pounds. the cart driver must give this ticket to the consumer or forfeit pounds. if coal is carried by cart without a ticket, the seller forfeits pounds and the driver pounds. anyone who willfully and maliciously set on fire any mine or pit of coal is guilty of felony and shall suffer death without benefit of clergy. anyone who willfully and maliciously floods a coal work, mine pit or who makes underground cavities or passages with intent to destroy or damage such, or obstructs any sough or sewer made for draining such, which has been held in common for years, shall forfeit treble damages. this is to deter these offenses, which have been done to enhance the price of coals and gain a monopoly thereof. if twelve or more people who riotously and tumultuously assemble and disturb the peace, do not disburse within an hour of an order to disburse by a justice or sheriff or mayor, they shall be deemed felons without benefit of clergy. any people pulling down or destroying a church, dwelling house, barn, stable, or other out house; any mill; any engine used for draining water from any coal, lead, tin, or copper mines, or for drawing coals from mines; or bridge, wagon, or fences used in such industry will be deemed felons without benefit of clergy and may be transported for seven years. the cost of repair is to be borne by the hundred or town. any owner of timber trees, fruit trees, and other trees used for shelter, ornament, or profit, which are cut down or otherwise destroyed shall be made good by his parish or town, as is an owner of hedges and dikes overthrown by persons in the night. in , anyone cutting down or destroying any oak or other timber trees at night shall forfeit up to pounds for the first offense, up to pounds for the second offense, and shall be transported to the colonies for seven years for any further offense. anyone digging up or destroying or carrying away any root, shrub, or plant worth up to s. in a garden, nursery, or other enclosed ground at night shall forfeit up to pounds for the first offense, up to pounds for the second offense, and shall be transported to the colonies for seven years for any further offense. anyone not paying is to be gaoled. aiders and buyers who know the item was stolen shall incur the same penalties. later, many other types of trees, such as beach, ash, elm, cedar, and walnut were included as timber trees, and hollies, thorns, and quicksets included as plants. the previous statute that substituted burning in the cheek for burning in the hand is repealed because this not only did not deter offenders, but on the contrary, made them unfit for honest livelihoods and therefore more desperate. those convicted of theft or larceny shall be burnt in the hand and may be kept at hard labor in a house of correction for - months, without bail. any person using violence to hinder the purchase or transportation of grain, e.g. by beating or wounding a buyer; beating or wounding the driver or horse of a cart loaded with wheat, flour, meal, malt, or other grain, or cutting the harness of or driving away the horse, or cutting or carrying away the sacks of grain is to be put in the common gaol or house of correction with hard labor for - months, and whipped in the market place between : and : . the penalty for a second offense or for destroying a storehouse or granary where grain is kept to be exported or for taking or spoiling such grain, or for throwing such off a ship or vessel is transportation for seven years. the hundreds concerned are to pay damages up to a total of pounds, but only if notice is given to the constable within two days and there is an oath and examination before a justice of the peace within ten days of the owner or his servants. if any offender is convicted within a year, the hundreds are released. anyone who steals at night any cloth or wool or woolen goods set out to dry on racks shall forfeit treble damages, or if he can't pay, be sent to prison for three months without bail. for the second offense, he shall forfeit treble damages and be sent to prison for six months without bail. for the third offense, he shall be transported for seven years. upon complaint, a justice of the peace may authorize a constable or other peace officer to enter and search houses, outhouses, yards, and gardens of a person suspected by the owner. this person shall account to the justice of the peace and may bring a witness to his purchase of the items. if the account is unsatisfactory, he shall be penalized. anyone taking linens, fustians, or cottons set out for whitening, bleaching, or printing up to the value of s. in lands, grounds, or buildings may be transported for seven years. later, this penalty was increased to death without benefit of clergy or transportation for fourteen years. anyone stealing or maliciously pulling up or destroying any turnips on a person's land must pay damages or go to gaol for up to one month. he may be whipped. the penalty for a second offense is three months in a house of correction. this statute of was, in , extended to include potatoes, cabbages, parsnips, peas, and carrots. a penalty up to s. was added. evidence of the owner was to be taken. in , anyone who steals a dog or receives such knowing it to be stolen shall forfeit - pounds for the first offense, and - pounds for the second offense or go to gaol or the house of correction for - months and be publicly whipped there. search warrants may be issued to search for stolen dogs or their skins. one-half of the forfeiture will go to the informer. in was the last execution for witchcraft. by statute of , witchcraft, sorcery, enchantment, and conjuration were abolished as crimes. persons pretending witchcraft, sorcery, enchantment, or conjuration; or telling fortunes; or pretending by occult knowledge to discover the location of stolen goods may be imprisoned for one year without bail and put in the pillory in the market place once in every quarter of such year. anyone stealing goods off shipwrecks, or putting out a false light to bring a ship to danger, or beating or wounding with an intent to kill or otherwise obstructing a person escaping from the ship to save his life shall suffer death without benefit of clergy. except that good of small value taken without violence shall be punished as petit larceny. the houses of suspect people may be searched by warrant. if there are goods found or if people are found offering goods to sell, they may be ordered by a justice to give an account of these goods. if the account is not satisfactory, the punishment is forfeiture of treble their value or six months in prison. a reasonable reward may be given to the discoverer. anyone assaulting a magistrate or officer involved in salvage work shall be transported for seven years. officers of the revenue who collude with importers to return to them goods which have been seized for nonpayment of duties shall forfeit pounds and lose office, unless they disclose their accomplices within two months. the importer shall forfeit treble the value of such goods. armed persons up to three in number assembled to assist in illegal exporting or running, landing, or carrying away prohibited or uncustomed goods, and any person apprehended by any revenue officer, and anyone with his face blackened or masked who obstructs, assaults, opposes, or resists any revenue officer seizing such goods, or who shoots at or maims or wounds any revenue officer attempting to go on any ship shall suffer death as felons without benefit of clergy or serve as commons sailors in the navy for at least one year. harborers of such offenders will be transported for seven years. the hundreds shall pay pounds for each revenue officer killed, and up to pounds for each one beaten, wounded, or maimed, and damages up to pounds for goods, unless an offender is caught and convicted in six months. there is a reward of pounds to an apprehender, and pounds for an attempt to apprehend in which one loses a limb or eye or is maimed or wounded, and pounds to his family if he is killed. an offender who brings two of his accomplices to justice will be acquitted and rewarded pounds for each such accomplice. later, an incentive was given to customs officers to have a portion of the proceeds of the sale of such goods seized by them, such as / for wrought silks and calicoes, and / for tea, coffee, foreign brandy, and rum. still later, any person could seize wrought silk, including ribbons, laces, and girdles containing it, from the importer or retailer, and the importer was to forfeit pounds, and any import assistants pounds, and retailers or concealers pounds, with one half going to the suer. also, the goods were to be publicly burnt. still later, the penalty was increased to forfeiture of pounds for all offenders, but not including wearers, and the goods were to be publicly sold for export rather than burnt. then the import of silk stockings, silk mitts, and silk gloves was prohibited for the support of the english silk industry. retailers, sellers, and concealers of such were to forfeit the goods and pounds. search warrants could be issued. in , importers, sellers, and manufacturing users of most foreign wrought silks or velvets were to forfeit the goods and pounds. the goods were sold for export with the proceeds going / to the king, and / to the seizing officer. the wearer was not liable. the burden of proof of the place of manufacture was on the person prosecuted rather than on the prosecutor. persons breaking into houses or shops to destroy any wool or silk being made or tools or racks used shall suffer death as felons, to prevent combinations of workmen. in , bounties were made available to american exporters of raw silk to great britain, whose climate was not conducive to the growing of mulberry trees on which silk worms feed. in , cotton printed, stained, or dyed that has been manufactured in great britain may be worn and used, but must have a mark woven in the warp that it was manufactured in great britain. persons importing other such cloth shall forfeit it and ten pounds per piece. persons selling such with a counterfeit stamp with an intent to defraud shall suffer death without benefit of clergy. the protective measures for english silk manufacture did not work well. any ship not more than tons hovering on the coast with customable or prohibited goods may be boarded by a customs officer, who may demand bond for treble the value of the goods. in , persons contracting with artificers and manufacturers of wool, iron, steel, brass, and other metals, clockmakers, or watchmakers, to go to a foreign country and there receive greater wages and advantages shall forfeit pounds and spend months in prison for the first offense, and shall forfeit a sum determined by the court and spend months in prison for the second offense. an artificer or manufacturer not returning after warning is given by the ambassador is to forfeit hereditaments, goods, and lands and to be deemed an alien. later, in , cotton and silk were included and the penalty was increased to pounds and months in gaol for the first offense, and pounds and years in prison for the second offense. also, anyone exporting tools of wool or silk manufacture was to forfeit the tools and pounds. this statute was strictly enforced. in , tools of cotton and linen manufacture were included. in , all statutes against engrossing, forestalling, and regrating were repealed because they had prevented free trade and tended to increase prices, e.g. of grain, meal, flour, cattle, and other victuals. anyone assisting a felon (except for petty larceny) to try to escape from gaol, is guilty of felony and shall be transported for seven years. anyone assisting a person who owes or is to pay pounds to try to escape from gaol is guilty of a misdemeanor. in , prison keepers were indemnified from creditors for any escapes of debtors due to conspiracy and break out with weapons and firearms rather than due to negligence of the prison keeper, as had been occurring. any pirate, accessory to piracy, commander or master or other person of any ship or vessel who trades with a pirate or furnishes him with ammunition or provisions of fits out a ship to trade with pirates shall suffer death and loss of lands, goods, and chattels. seamen maimed in fighting pirates may be admitted into greenwich hospital. (this hospital received support from duties paid by vessels of the realm and of the colonies.) masters or seamen not fighting shall forfeit their wages and spend months in prison if the ship is taken. masters shall not advance to any seamen above half his wages since deserting is the chief occasion of their turning into pirates. in london penalties for crimes against property rose so that by , a child could be hanged for stealing a handkerchief worth s. from a person's body. no more than pounds of gunpowder may be kept in any building in london or westminster or suburbs thereof. later, no more than pounds of gunpowder were allowed to be kept therein for more than hours. buildings may be searched on "reasonable cause" shown to a justice of the peace. later, no more than pounds of gunpowder could be kept for more than hours near any town, or more than pounds for more than hours in any place. then no gunpowder could be conveyed by land over barrels or by water over barrels. it was customary for officers to take the oaths of allegiance and supremacy to any new monarch. when george i became king in , all civil and military officers, clergy, schoolmasters, and lawyers, solicitors, clerks, etc. living within miles of london had to take an oath of allegiance and a new oath that the person was not papist and agreed that no foreigners had jurisdiction in the realm, such as to excommunicate someone and thus declaring he could be legitimately killed. soon after, it was required that papists had to register their names and real estates. commissioners were appointed to make inquiries. if a person did not take the oaths or did not register, he was to forfeit / of his land to the king and / to a protestant who sued for such. this was in order to deter future rebellions against the king and efforts to destroy the protestant religion. papists enlisting in the army are liable to corporal punishment, but not death, as determined by a court martial. any mayor, bailiff, or other magistrate who is present at any meeting for public worship other than the church of england will lose office and is barred from any public office or employment. as late as , there was a papist conspiracy to take the tower of london and the king, and make a catholic king. this resulted in the imprisonment of the conspirators and a new statute: persons not taking the oath of allegiance and above oath that they were not papist shall register their lands and yearly rents and pay double the land tax and , pounds. after payment, they are discharged from forfeiting / of their lands' rents for one year. jews may not refuse suitable maintenance to their children who are christian to pressure them to convert back to judaism. black slaves were common for a time in london. this was a result of the voluminous triangle trade of manufactured goods from england, slaves from west africa, and sugar and tobacco from the west indies. slavery was largely abolished by judicial decision of chief justice mansfield in . if a sheriff does not answer for money collected for the exchequer, he shall forfeit treble damages to the aggrieved person, double the sum missing to the aggrieved person, pounds to the king, and pounds to the party who sues. if a sheriff take a fee for levying or collecting money due to the king (except d. for an acquittance) or take a sum for not levying money due, he is guilty of extortion, injustice, and oppression and shall forfeit treble damages and costs to the aggrieved person, and double the sum extorted to the aggrieved person. a sheriff may not levy more than d. for every s. of yearly income of any manor for up to pounds of income, and d. for value over pounds. no one may cut pine trees that are fit for masts of ship in new england without license by the queen or else forfeit pounds. later, pine trees on private property were exempted. citizens of great britain may sue colonial debtors by oath before british magistrates and a debtor's colonial lands and houses and negroes may be used to satisfy his debts. anyone pretending to act under a charter and taking subscriptions in great britain or the colonies must forfeit treble damages. no hats, including beaver hats, may be exported from any colony even to another colony because this has hurt british hat manufacture. the penalty is pounds. no one in the colonies except present hatmakers who are householders and journeymen may make hats unless they serve a seven year apprenticeship. no hatmaker in the colonies may have more than two apprentices at once. whaling ships near greenland were prohibited from returning until their hulls were full. vessels built or fitted out in america may engage in whaling. pig iron from the colonies may be imported free, but there may be no mill for slitting or rolling iron and no plateing-forge or other engine to work with a tilt hammer and no furnace for making steel erected or used in the colonies or else forfeit pounds. no paper bills of credit may be used in new england because such have depreciated. william blackstone lectured on law at oxford university in . as a result, the first professorship of english law was established. his lectures were published in as the "commentaries on the laws of england". they greatly influenced the american colonists and were the basis of legal education in england and america for years. they were comprehensive and covered real property, crime and punishment, court procedure, contract, corporations, and commercial law. he wrote "the great charter and charter of the forest" in . - judicial procedure - for actions under pounds in a superior court and actions under s. in an inferior court, the offender shall be served with process to appear in court rather than being arrested. for money at issue, an affidavit shall be taken. no more money may be taken for bail than the amount at controversy. this is to prevent frivolous and vexatious arrests. perjurers, forgers, those involved in barratry or suborning perjury, and pretenders practicing as attorneys or solicitors in the courts of law or equity shall be transported for seven years to the american colonies. unqualified people acting as attorneys or solicitors in the county court shall forfeit pounds. no one may practice as an attorney in the courts of king's bench, common pleas, or exchequer until he has been examined by a judge of such court on his fitness and qualifications and has taken the oath to honestly demean himself and practice according to his best knowledge and ability. the same applies to a solicitor in the equity courts. this shall not exclude persons who have been bound to an attorney or solicitor for four years. attorneys and solicitors, with consent of an attorney of another court, may participate in proceedings of such other court. no attorney may have more than two clerks bound to him at one time. attorneys may be admitted as solicitors and vice-versa. there were twelve common law justices of the court of the king's bench, court of common pleas, and court of the exchequer. the chief justices of all of these courts were paid partly from fees paid to the court. the other justices of these courts were paid completely by salary, which in was well over pounds per year. these justices were to continue in office even after a king died and could be removed only for good cause upon the address of both houses of parliament. the officers of these courts were attorneys. there was one justice at doctors' commons. the two chancery justices (since edward i) were the lord chancellor and the master of the rolls. the salary of the eleven masters of the court of chancery in was pounds per year. the officers of this court were solicitors. appeals from the exchequer could be made to a court of the king's bench and common pleas combined. appeals from common pleas could be made to the king's bench. decisions of the king's bench and other common law courts could be appealed to parliament. the common law courts rode circuit twice a year in five circuits and once a year in the north circuit. so an accused person could spend up to a year in gaol waiting for trial. few prisoners were granted bail. in each common law court, the law justices in banc would hear demurrers [contentions that the other party was wrong in the law]. no one with an interest in a suit, including the plaintiff and the defendant, could give evidence. there was no power to amend pleadings, so misspelling of the defendant's name, for instance, could result in dismissal of the suit. in , the pleadings and indictments ceased to be in latin. compurgation still existed for debt and detinue. writs of error at variance from the original record or otherwise defective may be amended to correct the defect by the court where such writ is returnable. no judgment is to be reversed for any defect in any bill or writ, excepting an appeal of felony or murder, or misdemeanor. this is to prevent delays of justice. justices of the peace may correct defects of form on appeals to them. plaintiffs neglecting to go to trial after an issue has been joined may be nonsuited. the qualification for jury service is having land with an income over rents of at least pounds, with leases for years or more, or years, or any term determinable on one or more lives. being a freeholder is not necessary. in london, the qualification is being a householder and having lands to the value of pounds. no sheriff may excuse a qualified person from jury service for money or other reward. selection of jurors for each case is to be done by some impartial person pulling their names from a box. later, persons refusing jury service could be fined. poor persons may be paid up to d. to give evidence against felons. pirates may not be tried again for the same crime or for a certain crime and high treason. when the marine force was raised, the marines were also given protection from double jeopardy. in chancery, a plaintiff filed a complaint and interrogatories prepared by counsel. only in chancery could there be discovery, such as interrogatories [written questions]. court officials asked the questions of witnesses without the presence of the parties or their lawyers. officials wrote down the answers in their own terms so there was no cross-examination possible. most decrees took many years to be made. the ordinary administrative court of first instance is that of one or two justices of the peace who issued orders in matters of public safety, public order, public morals, health, the poor, highways, water, fields, forests, fisheries, trade, building, fire, begging, and vagrancy. they examined suspicious persons and issued warrants for the removal of any person likely to become a public charge. the justice of the peace also regulated wages, servants, apprentices, and day laborers. in his judicial capacity, he tried all crimes and felonies except treason, though in practice death penalty cases were transferred to the assize justices. the justices of the peace of a hundred hold special sessions such as for appointment of parochial officers, highway disputes, and the grant of wine, beer, and spirit licenses. the appointment of overseers of the poor, authorization of parish rates, and reading of the riot act to mobs to disperse them, required more than one of the justices of the peace of the hundred to participate. all the justices of the peace of the county met four times a year at quarter sessions to hear appeals from penal sentences, to determine the county rate of tax, to appoint treasurers of the county and governors of the county prison and house of correction, to issue regulations on prices of provisions and on wages, to settle fees of the county officials, to grant licenses for powder-mills and other industries, to hear nuisance complaints such as those against parishes failing to keep their roads in repair, to make regulations for the holding of markets, to hear complaints concerning local government, and to register dissenting chapels. in more and more matters specified by statute, the quarter sessions heard appeals from the orders of individual justices of the peace instead of common law courts hearing them by writ of certiorari. the writ of certiorari allowed administrative decisions to be reviewed by the common law courts for compliance with law, competency of the court, and interpretation of the administrative law. the writ of habeas corpus appealed administrative decisions to imprison not only after arrest for criminal proceedings, but any coercive measure for enforcing an administrative order. the writ of mandamus was available for enforcing the injunctions of administrative law against towns, corporations, and all other authorities and private persons, where the ordinary punishments were insufficient. justices of the peace in rural areas were squires and in towns aldermen. in , justices of the peace were authorized to decide issues between masters and mistresses and their employees who were hired for at least one year. if a servant misbehaved, they could authorize reduction of wage, discharge, and hard labor at a house of correction up to one month. if a servant was not paid, he could authorize payment of wages up to pounds for an agricultural servant, and up to pounds for an artificer, handicraftsman, miner, collier, keelman, pitman, glassman, potter, or ordinary laborer. later, tinners and miners were added to the last category. in , employees of less than a year were included. in , justices of the peace were authorized to administer any oath for the purpose of levying penalties. to be a justice of the peace, one must have income of pounds a year from a freehold, copyhold, or customary estate that is for life or for a term of at least years, or be entitled to a reversion of lands leased for or or lives, or for any term of years determinable on the death of or or lives. excepted were peers, justices, and heads of colleges or vice chancellors at the universities. the justices of the peace were selected by the superintending sheriffs and lords lieutenant, the latter of whom were usually peer with a ministers' office or a high court official. no attorney or solicitor or proctor could be a justice of the peace unless the locality had justices of the peace by charter. a request for certiorari for removal of convictions, judgments, orders made by justices of the peace must be made within six months and after notice to the justice of the peace who may argue cause against granting certiorari. in the common law courts, trespass in ejectment served the purposes of most of the actions involving land. assumpsit covered the whole province of debt, and much more. trover more than covered the old province of detinue. trespass still served for all cases in which the defendant had been guilty of directly applying force to the plaintiff's body, goods or chattels. trespass on the case covered miscellaneous torts. replevin was still used. covenant remained in use for the enforcement of promises under seal. account gradually came under the equity jurisdiction of chancery. common law writs of dower are largely superseded by the relief given to the doweress in the courts of equity, where new and valuable rights were given to her and to her personal representatives against the heir and his representatives. the actions of indebitatus assumpsit is being extended to actions upon quasi-contract, in which the element of contract is not required e.g. quantum meruit, where a contract is implied from the facts of the case. mercantile law was developed by the common law courts, especially the king's bench. the king was to appoint the marshal of the king's bench. the marshal was to select his inferior officers to hold office as long as they "behave themselves well within". these offices had been sold by james i to a certain person, his heirs, and assigns. the marshal was to keep the prison of this court in good repair from his fees and profits of office. the office of sheriff was now an accessory department of the common law courts for summons, executions, summoning the jury, and carrying out the sentence of the law. summons for excise offenses may be left at a person's abode, workhouse, or shop as well as on his person. the coroner's office now investigated unusual deaths with a jury from the neighborhood elected by county freeholders. the last beheading was of a scottish lord in ; he had been involved in an attempt to restore the stuarts to the throne. so many people came that some overcrowded bleachers fell down and crushed about spectators. henceforth, every sentence of death was by hanging, even for peers. in , the process of pressing a man to death, if he refused to plead to an indictment was abolished. instead, persons accused or indicted, in great britain or america, of felony or piracy who stand mute shall be convicted of such charge. property of a felon was still forfeited to the crown. >from on were established special procedures for speedy decisions in local courts in some areas for debts or damages under s. and imprisonment for such was limited for up to three months. otherwise, sentences were longer, and debts grew during the time in prison. when prisons were overcrowded, parliament let the inmates out if they gave up their possessions. they could go to georgia. in , the homes of john wilkes and others were searched for a seditious and treasonous published paper and all related papers because they had been rumored to have some relationship to the conception, writing, publication, or distribution of the paper. wilkes had such papers and was convicted of libel. he countersued for damages due to criminal trespass. the court held that general search warrants were subversive of the liberty of the subject of the search in violation of the british constitution, declared the statute void, and found for wilkes. the court of common pleas agreed on appeal and put the burden of proof on the persons searching to justify the search warrant. his decision gave support to william pitt's assertion that "every man's home is his castle". there were felons' prisons and debtors' prisons. sometimes they were one and the same. there was much fighting among inmates. the inmates slept on hay if lucky. there were no washing facilities and little light. counties or friends paid for their bread. they were also sold beer, which made them drunk and riotous. the sale of beer was a recognized and legitimate source of profit to the keeper. this was remedied by statute of that no sheriff or other officer may take an arrested person to a tavern or other public house or charge him for any wine, beer, ale, victuals, tobacco or other liquor without his consent and shall allow prisoners to be brought beer, ale, victuals, bedding, and linen as the prisoner sees fit. sheriffs often kept people imprisoned unless and until they paid all their fees due to the sheriff. in was founded the society for the discharge and relief of persons imprisoned for small debts for those inmates unfortunate instead of fraudulent or extravagant. legacies were often made to debtors. there was much gaol distemper fever with fatal consequences. when john howard, a grocer who had inherited wealth, but poor health, became a sheriff, he visited many gaols. when he saw the squalid conditions there, he advocated hygienic practices. in , justices of the peace were authorized to order walls and ceilings of gaols to be scraped and washed, ventilators for supplies of fresh air, a separate room for the sick prisoners, commodious bathing tubs, provision of clothes for prisoners, keeping of prisoners not below the ground, and apothecaries at a stated salary to attend and to report the state of health of prisoners. in , clergymen were employed in gaols to alleviate the distress of prisoners and to contribute to morality and religion. also, no longer may any fees be taken by gaol keepers or sheriffs because persons not indicted or found not guilty have been kept in prison pending payment of such fees. instead, the counties shall pay to gaol keepers up to s. d. per prisoner so discharged. colonials acts which infringed upon the english common or statutory law, or were against the interests of other american colonies were submitted to the privy council, which allowed or disallowed them. appeals from the colonial courts came to the privy council. judges in the colonies were appointed by royal governors and paid by colonial legislatures. they served at the pleasure of the king. colonial courts included superior courts of judicature, courts of assize, general gaol delivery, general sessions of the peace, inferior court of common pleas, and commissions of oyer and terminer. there were also justices of the peace, marshals, provosts, and attorney generals. there were few cases of vagrancy, theft, or homicide. this may have been because the people were few and dependent on each other, and economic opportunities were great. in john peter zenger, printer of the new york weekly journal, was tried for seditious libel for its criticisms and satire of the new york governor, who exceeded his powers, such as by demanding that bills from the assembly be presented to him before the council, and by arbitrarily displacing judges. seditious libel was defined as "false, scandalous, and seditious" writings. traditionally, this word "false" could mean "disloyal". the prosecution argued that truth of such criticism was an aggravation of the crime because it was more provoking of sedition, as found by star chamber cases. the defense argued for a right publicly to remonstrate abuses of power by public officials to guard against violence and destruction of liberties by men in authority. the american jurors, who were supposed to be familiar with the facts pertinent to the case, knew the truth of the paper's criticisms. they agreed with the defense that the word "false" in the definition: "false, scandalous, and seditious" writings, to mean "untrue" instead of "disloyal". so truth became a defense to seditious libel. pamphletts describing the zenger trial and acquittal were published and republished in london and the colonies. benefit of clergy was available in the american colonies to all who could read and write. it could be used in trials for manslaughter. - - - chapter : epilogue - - - in the time period after , there developed the fuel-saving kitchen range with closed-in-fire between oven and hot-water tank, hot and cold running water, the use of flushing toilets, edmund cartwright's power weaving machine, samuel crompton's mule for spinning many threads by waterpower in , james watt's steam engine with steam pushing the piston both ways as well as rotary motion and used in many kinds of factories instead of water power, henry bessimer's inexpensive low carbon steel in , iron and steel bridges and ships, drilling and use of oil and natural gas as fuel, adam smith's "wealth of nations" opining that competition of the market could distribute resources best, thomas paine's "rights of man", free trade, democracy, popular elections, secret ballots, universal suffrage, civil service without patronage, mary wollstonecraft's "vindication of the rights of women", university education for women (university of london), policemen (in london in ), clipper ships (the final development of sailing before steam), percussion caps on guns, periodic chart of chemical elements, college degrees in biology, chemistry, and physics, geology, maxwell's theory of electromagnetism, albert einstein's theory of relativity, quantum theory, laws of thermodynamics that the energy of the universe is a constant amount but entropy always increases, computers, decoding of the dna sequence, charles darwin's evolution, joseph lister's disinfectant in , edward jenner's smallpox vaccine, louis pasteur's germ theory of disease, anesthetics, aspirin, insulin, penicillin, antibiotics, surgery to replace body parts, tampon, contraceptive pill, discovery of planet uranus by observation and thence of neptune and pluto by calculation from discrepancies in uranus' orbit, hubble space telescope, big bang theory, buses (horse-drawn from with passengers), subways, trains ( ), public railway ( , goods drawn by engine and passengers by horse), steam ships, steel ships, aircraft carriers, submarines, tanks, friction matches, chewing gum, pajamas, gas street lamps, traffic lights and signs, ambulances, concrete and asphalt highways, census in , children's playgrounds, knee length dresses, chemical artificial fertilizers, substitution of steel for iron, trade unions, digital watches, wrist watches, compact disks, intelligence tests, personality tests, wool-combing machine, statistical analysis, bell curves, standard deviations, united nations, carpet sweeper, vacuum cleaner, central heating, apartment high rises, business skyscrapers, electricity, electric lights, sewing machines, water closets in richer houses (after ), cholera epidemics, sewers for waste disposal, industrial revolution factories, labor strikes, cars, tractors, charles dickens, ice boxes and refrigerators, telephones, central heating with radiators, hot water heaters by gas, gas ovens, humidifiers, canned food, four- pronged forks, suits of matching jackets and trousers, zippers, velcro, wall-to-wall carpeting, popular elections, airplanes, photography, record players, frozen food; cast iron kitchen range for cooking, baking, and boiling; radio, television, plastics, submarines, economics, multinational corporations, weather forecasting, braille, airplanes, space ship to moon, factory assembly lines, washing machines, dishwashers, sewing machine, microwave ovens, copier machines, dna evidence, nuclear bomb and nuclear energy, guided missiles, quartz watches, bicycles, artificial insemination and invitro fertilization, investment advice, retirement planning, amusement parks, catalogue buying, labor contracts, childrens' summer camps, teenage culture, synthetic materials, typewriters, cardboard boxes, marketing studies, factory assembly line, gene-mapping, animal cloning, internet, hiking and camping trips, world travel vacations, telegraph, word processing, gas, oil, research, credit cards, dental floss, camcorders, mass production, nursing homes, cameras, copy machines, wheelchairs, hospital operations, artificial limbs, organ transplants, pharmacies, public circulating libraries, children's playgrounds, cosmetic surgery, physical exercising equipment, vitamin pills, sports clubs, condominiums, molecules, chromosomes, observatories, radar, sonar, nutrition, supermarkets, disability insurance, liability insurance, chemical fertilizers, ddt, record players, video tape recorders, retirement homes, movies;, planned obsolescence, box-spring mattresses, brain scans, x-rays, organized professional sports, dry cleaners, foreign embassies, psychiatry, veterinarians, drug abuse, wage garnishment, tractors, lawnmowers, breeding zoos, world wars, nuclear deterrence, fingerprinting, forensic evidence, toxic waste, acid rain, elevators, picture windows, sewing machines, automation, cybernetics, pizza delivery, health insurance, walt disney, satellite transmission, radiocarbon dating, ice cream, air conditioning, ball point pens, school blackboards, bullets in s, electronic mail, first law of thermodynamics: the conservation of energy, the second law of thermodynamics: potential energy turns into high-temperature thermal energy and finally into low-temperature thermal energy, but these processes are not reversible. the science of philology, on the meaning and history of words began the concept of a natural development of languages which conflicted with the theological view that god had created all the different languages when he punished man for trying to build an edifice to heaven by destroying the tower of babel and dispersing the people into all parts of the world with different languages derived from the original: hebrew, so that they could not communicate with each other. the science of geology developed the concept of tremendous changes in the earth's surface which altered horizontal layers of deposits, in which there were fossils, which challenged the biblical notion of a world and all its animals created in a week. in , lord henry cavendish proved that the sole result of mixing hydrogen with oxygen was water, thus disproving the theory of the four elements of air, earth, fire, and water. in the united states, there was no king, a separation of the executive, the legislative, and the judicial; a separation of church and state, and no aristocratic titles. in this time period the development of law includes abandonment of common law crimes such as seditious libel in the united states, negligence and duty of due care in the united states replacing the english strict liability for torts, substitution of the caveat emptor doctrine for the english sound price doctrine in contract law in the united states, truth as a defense to charge of libel in the united states, repeal in england of seven year requirement for apprentices in , married women's property acts beginning : ( . right to sue and be sued, . right to her own earnings, . right to own real and personal property, . right to make contracts . right to stay in family homestead with children, right to custody of children if husband abandons her), divorce in england by courts in , in united states extension of grounds for divorce beyond adultery, bigamy, and desertion to cruel treatment, habitual drunkenness, and conviction of a felony and finally no-fault divorce, decline of father's paramount claim to the custody of his minor children in the absence of a strong showing of misconduct or unfitness, tender years doctrine (in england in mother to have custody of child under seven and to have access over seven) and then best interests of child doctrine in custody disputes, legal obligation for parents to support their minor children, adoption about the s; in england allowance of women attorneys in , women to vote in , adultery by a husband to be adjudged as culpable as adultery by a wife in , the rights of a mother over her child to be equal to those of a father in , and the rights of a woman to property to be the same as those of a man in ; child labor laws, full religious freedom with admission of nonconformists to the two universities in england in , probable cause instead of suspicion for search and seizure, mandamus, rule against perpetuities, mandatory secondary education, kidnapping, false impersonation, liens, obscenity, estoppel for detrimental reliance on a promise, unjust enrichment, pensions, trademarks and unfair competition, antitrust, privacy, freedom of thought, freedom of speech, freedom of the press, bankruptcy, civil rights, union organizing laws, laws on discrimination due to race, sex, ethnic or national origin, disability, age, and sexual preference; sexual harassment and stalking laws, product liability, international law, environmental laws protecting air and water quality, workers compensation, unemployment compensation, controlled substances, intellectual property law; and contingency fees only in the united states, in england, there was an end of trial by combat in , of compurgation in , and of benefit of clergy. in , there were offenses in england with the death penalty, including stealing from a dwelling house to the value of s., stealing from a shop to a value of s., and stealing anything privily from the person. the penalty for treason was still drawing and quartering. it was a privilege of the peerage to be immune from any punishment upon a first conviction of felony. as of , church courts could no longer decide cases of perjury; as of , no cases of defamation, but only church matters. hearsay rules and exceptions were developed in the s. in , jurors were to have no knowledge except the evidence accepted at court. in , counsel for a person indicted for high treason could examine and cross- examine witnesses. in , a defendant could see the written record of evidence against him. in , the accused was allowed to give evidence. pleaders do not have to specify the form of action relied on, but rather give facts which give rise to a cause of action. judicial procedure includes grand juries, which hear evidence, court transcript by court stenographers, discovery, depositions, and presumption of innocence (after salem witch trials in the united states). the united states changed judicial procedure in several respects: parties were allowed to testify, writ pleading was abandoned, and prisons were used for reforming prisoners. debtors prisons were abolished. also, the law was seen not as divinely inspired eternal law to be found by judges, but law made by man to suit the times. state judges served for life during good behavior; they could be removed by the procedure of impeachment. in some states, judges were elected. there were privileges on testimony such as attorney-client, priest-confessor, and husband- wife. - - - appendix: sovereigns of england - - - accession - name - alfred the great edward the elder son of alfred aethelstan son of edward the elder edmund son of edward the elder eadred son of edward the elder eadwig son of edmund edgar son of edmund edward the martyr son of edgar aethelred the unready son of edgar edmund ironside son of aethelred the unready canute harold i harefoot son of canute hardicanute son of canute edward the confessor son of aethelred the unready harold ii william i, the conquerer william ii son of william i henry i (and matilda) son of william i stephen henry ii (and eleanor) grandson of henry i richard i, the lion-hearted son of henry ii john son of henry ii henry iii son of john edward i (and eleanor) son of henry iii edward ii son of edward i edward iii son of edward ii richard ii grandson of edward iii henry iv henry v son of henry iv henry vi son of henry v edward iv edward v son of edward iv richard iii henry vii (and elizabeth) henry viii son of henry vii edward vi son of henry viii mary daughter of henry viii elizabeth i daughter of henry viii james i charles i son of james i oliver cromwell charles ii son of charles i james ii son of charles i william and mary william iii anne granddaughter of james ii george i george ii son of george i george iii son of george ii - - - bibliography - - - . ancient laws and institutes of england, printed by command of his late majesty king william iv under the direction of the commissioners of the public records of the kingdom, vol ; . . the laws of the kings of england from edmund to henry i, a.j. robertson, . . the statutes of the realm . statutes at large . a treatise of the lawes of the forest, john manwood, . history of english law; william holdsworth . history of english law, pollack and maitland, . anglo-saxon charters, a. j. robertson, . franchises of the city of london, george norton, . borough customs vol. , selden society, . royal writs in england from the conquest to glanvill, selden society, . lawsuits in time of wm i, selden society . treatise on the laws and customs of the realm of england, ranulph d. glanvill, . calendar of wills, court of husting, london; ed. reginald r. sharpe . calendar of early mayor's court rolls of the city of london, ad - , ed. a. h. thomas . legislation of edward i, t.f.t. plunkett, . english historical documents, ed. david douglas . bracton on the laws and customs of england, henry of bratton, . chaucer's world, edith richert, . john, king of england, john t. appleby, . a collection of eighteen rare and curious historical tracts and pamphletts, edinburgh, priv. print. . doctor and student, christopher st. germain, . readings in western civilization, george kuoles, . social england, ed.: h.d. traill, st. john's college, oxford; vol. and , . . augustine of canterbury, margaret deanesly, . the venerable bede, ecclesiastical history of the english nation . political history of england; t. hodgkin . alfred the great, helm, . domesday, a search for the roots of england, m. wood, . the english church - ; f. barlow, . life on the english manor; h.s. bennet; . the english medieval town; colin platt; . london weavers' company, francis consitt, . the gild merchant, charles gross, . life and times of roger bacon . oxford book of oxford, jan morris, . a history of oxford university, vivian green, . lives of the lord chancellors, campbell, . gilds and companies of london, george unwin, . a history of technology, charles singer, - . edward i, michael prestwich, . franchises of the city of london, george norton, . the works of alfred . salisbury plain, r. whitlock, . william the conqueror, f.m. stenton, . life of william the conqueror, t. roscoe, . elizabeth i, anne somerset, . queen elizabeth, katherine anthony, . industry in england, h.deb. gibbons, . henry ii, w. l. warren, . edward i, l.f. salzman, . the yorkist age, paul kendall, . edward the confessor, frank barlow, . the livery companies of the city of london, w. carew hazlitt, . parliamentary representation of the city of coventry, thomas whitley, . the government of england under henry i, judith green, . lives of the queens of england, agnes strickland, . the oldest version of the customs of newcastle, c. johnson, . charter of henry ii to the burgesses of newcastle, a. m. oliver, . the charters and letters patent granted by the kings and queens of england to bristol, samuel seyer, . magna carta, legend and legacy, william swindler, . chronicles and memorials of great britain and ireland during the middle ages: letters and papers of richard iii and henry vii . sons of the conqueror, g. slocombe, . the spirit of the classical canon law, richard helmholz, . open fields, charles orwin, . the medieval foundation of england, arthur bryant, . from alfred to henry iii, - , christopher brooks, . the anglo-norman nobility in the reign of henry i: the second generation, charlotte newman, . the birth of britain vol. , winston s. churchill, . medieval london, gordon hoime, . a history of london, stephen inwood, . tudor england, john guy, . reign of henry vii, r. storey, . elizabethan life in town and country, m. st. claire byrne, . the elizabethan world, edited by norman kotner, . the evolution of modern medicine, william osler, . shakespeare's england, oxford university press, . the lion and the throne, catherine bowen, . johnson's england, ed. a.s. turberville, . education in renaissance england, kenneth charlton, . the scholastic curriculum of early seventeenth-century cambridge, william costello, . . english people on the eve of colonization - , wallace notestein, . sir walter ralegh, willard wallace, . sir walter ralegh, robert lacey, . constitutional documents of the reign of james i, j.r. tanner, . history of the english people, volumes iii and iv, green . hume's history of england, volumes v and vi, david hume . english society - , keith wrightson, . the century of revolution - , christopher hill, . charles i and the puritan upheaval, allen french, . charles i, christopher hibbert, . constitutional documents of the puritan revolution - , samuel gardiner, . life and work of the people of england in the th century, dorothy hartley et al, . home life under the stuarts, elizabeth godfrey, . cromwell the lord protector, antonia fraser, . the greatness of oliver cromwell, maurice ashley, . acts and ordinances of the interregnum - , c.h.firth & r.s.rait, . history of the english people, john r. green, . . a social and industrial history of england, f.w. tickner, . a history of everyday things in england, marjorie and chb quennell, . the english, norman f. cantor, . a concise economic history of britain, john clapham, . world book encyclopedia . encyclopedia britannica . history of the english constitution, rudolph gneist, . the life of the law, alfred knight, . norton anthology of english literature, ed. m.h.abrams, . the bank of england, john clapham, . the honorable company, a history of the east india company, john keay, . a history of british india, w.w. hunter, . the bank of england, john clapham, . early speculative bubbles and increase in the supply of money, m.a. thesis, douglas e. french, . royal charles, antonia fraser, . charles ii, ronald hutton, . the life and times of charles ii, christopher falkus, . life in a noble household - , gladys thomson, . the weaker vessel, antonia fraser, . a constitutional and legal history of medieval england, bryce lyon, . the laws respecting women, j. johnson, . mediaeval england, mary bateson, . elizabeth: the struggle for the throne, david starkey, . a social history of england, asa briggs, . the year , robert lacey, . a history of chemistry, charles-albert reichen, . john locke, economist and social scientist, karen vaughn, . becoming visible, women in european history, ed. bridenthal & koonz, . wonder book of the world's progress; inventions and customs, henry williams, . industrial revolution in the eighteenth century, paul mantoux, . eighteenth century england, dorothy marshall, . georgian england, a.e. richardson, . the pageant of georgian england, elizabeth burton, . the georgian gentleman, michael brander, . england in the eighteenth century, j.h. plumb, . london life in the eighteenth century, m. dorothy george, . law and jurisprudence in american history, stephen presser & jamil zainaldin, . england in the age of hogarth, derek jarrett, . the first four georges, j.h. plumb, . the review of american colonial legislation by the king in council, elmer russell, . select pleas of the crown, f.w. maitland, . select pleas in manorial and other seignorial courts, f.w. maitland, . the forms of action at common law, f.w. maitland, . equity, f.w. maitland . the story of the declaration of independence, ira g. corn, jr., . internet medieval sourcebook . out of the fiery furnace video, robert raymond . a history of chemistry, charles reichen, . seven ideas that shook the universe, nathan spielberg, . a history of the warfare of science with theology in christendom, andrew white, . american political and social history, harold faulkner, . essays in science, albert einstein, . the character of physical law, richard feynman, . dictionary of national biography, george smith, . elizabeth i: collected works, ed. leah marcus et al, . the crime of galileo, giorgio de santillana, . from copernicus to einstein, hans reichenbach, . the horizon book of the elizabethan world, ed. richard ketchum, . tower of london, christopher hibbert, . tudor royal proclamations, ed. p.l. hughes & j.f. larkin, . selected historical essays of f.w.maitland, ed. helen cam, . lloyd's of london, raymond flower & michael jones, . weather, philip thompson etc., . constitutional history of england, william stubbs, . hillforts of england and wales, james dyer, . the last two million years, reader's digest association, . london: the civic spirit, robert goldston, . domestic life in england, norah lofts, . descartes, tom sorell, . life in the english country house, mark girouard, . extraordinary origins of everyday things, charles panati, . god's peace and king's peace: the laws of edward the confessor, bruce o'brien, . the bill of rights, irving brant, . issac newton, adventurer in thought; a. rupert hall, . the life of issac newton, richard s. westfall, . a history of the circle, ernest zebrowski, . the world of water, j. gordon cook, . the western intellectual tradition, j. bronowski & mazlish, . human accomplishment, charles murray, . magic, myth and medicine, d.t.atkinson, m.d., . scientists who changed the world, lynn and gray poole, . the new treasury of science, ed. harlow shapley, etc., . food in history, reay tannahill, . home, a short history of an idea, witold rybczynski, . pelican history of england: . roman britain, i.a. richmond, . the beginnings of english society, dorothy whitelock, . english society in the early middle ages, doris stenton, . england in the late middle ages, a.r. myers, . tudor england, s.t. bindoff, . england in the seventeenth century, maurice ashley, the end index abbey; abbot, abbess; abduction; accessory; account; administrator; admiralty; adultery; adverse possession; adulterated; advowson; aethelbert; aethelred; affidavit; agreement; agriculture; augustine. st.; aids; alderman; ale; alehouses; alfred; alienate; aliens; allegiance; alms; amerce; america; anabaptist; ancient; anglo-saxons; anglo-saxon chronicles; annulment; apothecaries; apparel laws; appeal; appellate; apprentices; appurtance; archbishop; architect; aristotle; arkwright, richard; arraign; arson; arthur; articles of religion; artificer; artisan; assault; assay; assign; assize; assizes; assumpsit; astrology; at pleasure; atheism; attainder; attaint; attorneys; babies; bachelor; bachelor of arts; back-berend; bacon, francis; bacon, roger; bacteriology; bail; bailiff; baker; ballads; bank of england; bankruptcy; baptist; bar; barber; barber-surgeon; bargain and sale; barons; baron court; barristers; bastard; bath; battery; beadle; beating; becket; beer; beggar; benefit of clergy; benevolence; beowulf; bequeath, bequest; bible; bigamy; bill; bill of attainder; bill of exchange; bill of rights; billet; birmingham; bishops; black death; blackstone, william; blinding; blodwite; blood-letting; book of common prayer; bordars; borough; boston; bot; boyle, robert; bracton, henry de; brass; brawling; breach; breach of the peace; bread; brewster; bribery; brick; bridge; bristol; brokers; bullock, case of; burgess; burglary; burh; burial; burning; butcher; butler; calais; calvin; cambridge university; canals; cannon; capitalism; carbon dioxide; carpenter; carriages; carucage; carver; castle; castle-guard; cathedral; catholics; cattle; cavaliers; cecil, william; censorship; ceorl; certiorari; challenge; champerty; chancellor; chancery; chancery court; charter; chattel; chaucer, geoffrey; chemistry; chevage; chief justice; chief justiciars; child; child abuse; children; childwyte; christian; chivalry; christmas; church; church of england; church sanctuary; cicero; circuit; citizen; city; civil; civil courts; civil war; claim; clans; class; clergy; clerics; cloth-maker; coaches; coal; coffee houses; coin; coke, edward; college of physicians and surgeons; colonies; commission; common land; common law; commons, house of; commonwealth; compurgation; compurgator; confession; congregationalists; conqueror; consideration; constable; constitution; contract; conventile; conveyance; conviction; cooper; copernicus; copper; copyhold; copyrights; cordwainer; coronation charter; coroner; corporation; corruption of the blood; council; counterfeit; county; county courts; courtesy; court of common pleas; court of high commission; court of king's bench; courtesy; court martial; covenant; coverture; coventry; craft; craft guild; cranmer, thomas; creditor; crime; criminal; cromwell, oliver; cromwell, thomas; crown; cupbearer; curfew; currier; custody; customary tenant; customs; damages; danegeld; danes; darrein presentment; daughter; death; death penalty; debt, debtors; deceased; decree; deed; deer; defamation; defendant; demesne; denizen; deodand; descendant; descartes, renee; desertion; detinue; devise; dispensary; disseisin; dissenter; distraint; distress; divorce; doctorate; dog; doomsday book; doublet; dower; dowery; drake, francis; drover; drunkenness; duel; during good behavior; duties; dwelling; dyers; earl; east india company; easter; ecclesiastic; edith; education; eleanor, wife of edward i; eleanor, wife of henry ii; election; electricity; elizabeth, wife of henry vii; embroiderer; enclosure; english; engrose; episcopal church; equity; equity court; erasmus; escape from gaol; escheat, escheator; escuage; esquire; established church; estate; estate administration; estate tail; euclid; exchequer; excommunication; excise tax; executor; export; extent; eyre; factory; fair; father; fealty; fee; fee simple; fee tail; felony; feme covert; feme sole; feoff; fermat, pierre; feudal; feudal tenures; fihtwite; fine; fire; fire-fighters; fishermen, fishmonger; flint; flogging; flying shuttle; folkmote; food riots; footmen; forced loans; forced marriage; forestall; forest charter; forestall; forests; forfeit; forgery; forms of action; fornication; fortifications; foster-lean; france; frank-almoin; franklin, benjamin; frankpledge; fraternity; fraud; freedom of speech; freehold, freeholder; freeman; freemason; freewoman; friar; frith guild; fuller; fustian; fyrd; fyrdwite; gage; galilei, galileo; gambling; games; gaols; gaol distemper; gawaine; gentleman; gentry; geology; georgia; german, christopher st., gift; gilbert, william; guildhall; guilds; gin; glanvill; glass; glorious revolution; gloves; god; godfather; gold; goldsmiths; good parliament; goods; government; grain; grammar schools; grand assize; grand jury; grand tour; grants; grave; gravitation; greek; gresham, thomas; grithbrice; guardian, guardianship; guenevere; hair; hall; halley, edmond; hamsocne; hand-habbende; harboring; harrington, james; harvard college; health; heir; heresy; heriot; hidage; hide; high commission court; hilda; hillforts; holidays, holydays; homage; homicide; hooke, robert; horse; horse racing; hospitals; house-breaking; house-holder; house of commons; house of lords; houses; houses of correction; hue and cry; humanism, humors; hundred rolls; huygens, christian; hundred; hundred courts; hunt; husband; hustings court; hut; illegitimacy; illness; illuminators; impeach; import; imprisonment; incest; income tax; independents; indenture; indictment; industry; infangthef; inflation; inheritance; innkeeper; inns of court; inoculation; inquest; insurance; interest; interrogatory; intestate; iron; itinerant; jail; jesus; jews; joan of arc; joint tenants; joint-stock companies; jointure; jones, inigo; journeyman; judge; jurisdiction; jurors; jury; justice; justices in eyre; justices of assize; justices of the peace; justiciar; kent county; keplar, johannes; kill; kin, kindred; king; king alfred the great; king charles i; king charles ii; king edward i; king edward the confessor; king george iii; king henry i; king henry ii; king henry vii; king henry viii; king james i; king james ii; king john; king richard the lion-hearted; king william and mary; king william i, the conqueror; king's peace; knight; knight's fee; knights' guild; knitting; laborer; ladies; land; landlord; land-owner; larceny; lastage; latin; law merchant; lawsuit; lawyer; laxton; lay; leap year; lease; leather; leet court; legacy; legislation; legitimacy; leibniz, christian; leicester; letters; libel; liberi quadripartitus; library; license; life; life-estate; lighthouse; limb; linen; lion of justice; literacy; literature; littleton, thomas; livery; lloyds; locke, john; london; long parliament; longitude; lord; lords, house of; loriner; lottery; loyalty; machine; magistrates; magna carta; magnate; maiden; mail; majic; malicious prosecution; maintenance; manchester; manor; manor courts; manufacturing; manumission; marco polo; market; marriage; marriage agreement; marriage portion; marshall; marquise; massachusetts; master of arts; masters; matilda; mayflower; mayor; maypole; mead; measures; meat; medicine; melee; member; merchandise; merchant; merchant adventurers; merchant guilds; merchet; merciless parliament; mercy; merton; mesne; methodists; microscope; middlesex; midwives; military service; militia; miller; minister; minor; minstrels; miskenning; moat; model parliament; monarchy; monasteries; money; moneyer; monks; monopoly; moot; more, thomas; morgen-gift; morning gift; mort d'ancestor; mortgage; mortmain; mother; murder; mutilation; napier, john; navy; newcastle- on-tyne; new england; new model army; newspapers; newton, issac; new world; nobility; noblemen, nobles; nonconformists; normans; novel disseisin; nuisance; nun; oakham, william; oaths; offender; oil; one hundred year war; open field system; ordeal; ordinance; orphans; outlaw; oxford university; oxygen; papists; parent; parishes; parliament; parliament of saints; partition; party; pascal, blaise; passport; patents; pauper; pawn; peasant's revolt; peers; peine forte et dure; penalty; penitentiary; penn, william; pennsylvania; penny; per stirpes; perjury; personal injury; personal property; petit serjeanty; petition; petition of right; physicians; piers plowman; pigherds; pilgrim; pillory; pipe rolls; piracy; pirate; plague; plaintiff; plato; plays; pleading; pleas; police; pontage; poor; pope; popery; population; port; portreeve; portsoken ward; posse; possess; postal system; post mortem; pottery; praecipe in capite; pressing; presbyterians; prescription; presentment; priest; printing; prison; privy council; privy seal; probable cause; probate; proclamation; promise under seal; promissory note; property; prosecutor; prostitutes; protectorate; protestants; puritans; purveyance; putting out system; quakers; quaranteen, quarter sessions; queen; queen elizabeth i; queen mary; queen's bench; quo warranto; rack; ralegh, walter; rape; ray, john; real action; recognition; reeve; reformation; regrate; release; relief; religion; remainder; renaissance; rent; replevin; residence; restoration; reversion; revolt; reward; rights; riot; riot act; roads; robbery; robin hood; roemer, olaus; roman law; root and branch petition; roundheads; royal court; royal navy; royal society; royalists; rump parliament; russia; sacrament; sacrifice; sailor; sake and soke; sale; salt; saltworks; sanctuary; sandwich; saxon; scaetts; scavage; scholar; school; science; scolds; scot; scrofula; scutage; seal; seamen; searchers; search warrant; sedition, seditious; seisin; self- defense; self-help; separatists; serf; serjeanty; servant; service; servitude; settlement; sewer; shakespeare, william; shaving; sheep; shelley's case; sheriff; sheriff's turn; shillings; ships; shipwreck; shire; shire courts; shire-gemot; shoemaker; short parliament; shrine; sickness; silver; slade's case; slander; slave; slingshot; smallpox; smith; smithfield; socage; sokemen; soldiers; solicitor; son; spanish armada; speedy pursuit; spinning; spinning jenny; spinning wheel; spinsters; spouse; st. augustine; st. germain; st. lazarus; st. paul's church; statute of laborers; squire; staple; star chamber court; strangers; steam; steel; stengesdint; stevinus; steward; stock-and-land lease; stocking-frame knitters; stocks; stolen goods; stone; stonehenge; straw; streets; subtenants; successor; sue; suit; summary; summon; sunday; supporters of the bill of rights society; surety; surgery; surname; swearing; swords; tale; tallage; tanner; tavern; tax; tea; team; ten commandments; tenancies; tenancy, tenant; tenants in common; tenement; tenure; term; testament; thames, river; theft; thegn; theodore; theology; theow; thermometer; thirty years' war; tile; tiler; tin; title; tolls; tories; torricelli, evangelista; tort; torture; tournament; tower hill; tower of london; town; town-reeve; trades, tradesmen; transportation; treason, high and petit; treasure trove; treasury; trespass; trespass on the case; trial by combat (battle); trover; turnpike; twelve; tyne; umbrella, unitarians; university; usury; use-trust; vagrants, vagrancy; vassal; verderer; verdict; vessels; vikings; vill; villages; villeinage; villeins; vintner; virginia; wall; wallis, john; war of the roses; ward, wardship; wardmoot; wardrobe; warrantor, warranty; waste; water; watermen; watermill; waterwheel; watt, james; wealthy; weapon; weaving, weavers; webs; wed; wedding; weights; weir; well; wer, wergeld; wesley, john; westminster; whigs; whipping; white tower; whitsuntide; widows; wife; wife-beating; wills; winchester; windmills; window tax; wine; witch; witchcraft; wite; witan; witanagemot; witnesses; wives; wolsey, thomas; wyclif, john; woman-covert; women; wool; wounding; writs; writs of assistance; writs of error; year books; yeomanry, yeomen transcribed from the t. & t. clark edition by david price, email ccx @coventry.ac.uk the oldest code of laws in the world the code of laws promulgated by hammurabi, king of babylon b.c. - _translated_ by c. h. w. johns, m.a. lecturer in assyriology, queens' college, cambridge author of "assyrian deeds and documents" "an assyrian doomsday book" edinburgh t. & t. clark, george street printed by morrison and gibb limited for t. & t. clark, edinburgh london: simpkin, marshall, hamilton, kent, and co. limited new york: charles scribner's sons first impression . . . _february_ . second impression . . . _march_ . third impression . . . _may_ . fourth impression . . . _june_ . "the discovery and decipherment of this code is the greatest event in biblical archaeology for many a day. a translation of the code, done by mr. johns of queens' college, cambridge, the highest living authority on this department of study, has just been published by messrs. t. & t. clark in a cheap and attractive booklet. winckler says it is the most important babylonian record which has thus far been brought to light."--_the expository times_. introduction the code of hammurabi is one of the most important monuments in the history of the human race. containing as it does the laws which were enacted by a king of babylonia in the third millennium b.c., whose rule extended over the whole of mesopotamia from the mouths of the rivers tigris and euphrates to the mediterranean coast, we must regard it with interest. but when we reflect that the ancient hebrew tradition ascribed the migration of abraham from ur of the chaldees to this very period, and clearly means to represent their tribe father as triumphing over this very same hammurabi (amraphel, gen. xiv. ), we can hardly doubt that these very laws were part of that tradition. at any rate, they must have served to mould and fix the ideas of right throughout that great empire, and so form the state of society in canaan when, five hundred years later, the hebrews began to dominate that region. such was the effect produced on the minds of succeeding generations by this superb codification of the judicial decisions of past ages, which had come to be regarded as 'the right,' that two thousand years and more later it was made a text-book for study in the schools of babylonia, being divided for that purpose into some twelve chapters, and entitled, after the semitic custom, _ninu ilu sirum_, from its opening words. in assyria also, in the seventh century b.c., it was studied in a different edition, apparently under the name of 'the judgments of righteousness which hammurabi, the great king, set up.' these facts point to it as certain to affect jewish views before and after the exile, in a way that we may expect to find as fundamental as the babylonian influence in cosmology or religion. for many years fragments have been known, have been studied, and from internal evidence ascribed to the period of the first dynasty of babylon, even called by the name code hammurabi. it is just cause for pride that assyriology, so young a science as only this year to have celebrated the centenary of its birth, is able to emulate astronomy and predict the discovery of such bright stars as this. but while we certainly should have directed our telescopes to babylonia for the rising of this light from the east, it was really in elam, at susa, the old persepolis, that the find was made. the elamites were the great rivals of babylonia for centuries, and it seems likely that some elamite conqueror carried off the stone from a temple at sippara, in babylonia. however that may be, we owe it to the french government, who have been carrying on explorations at susa for years under the superintendence of m. j. de morgan, that a monument, only disinterred in january, has been copied, transcribed, translated, and published, in a superb quarto volume, by october. the ancient text is reproduced by photogravure in a way that enables a student to verify word by word what the able editor, father v. scheil, _professeur a l'ecole des hautes-etudes_, has given as his reading of the archaic signs. the volume, which appears as _tome iv., textes elamites-semitiques_, of the _memoires de la delegation en perse_ (paris, leroux, ), is naturally rather expensive for the ordinary reader. besides, the rendering of the eminent french savant, while distinguished by that clear, neat phrasing which is so charming a feature of all his work, is often rather a paraphrase than a translation. the ordinary reader who desires to estimate for himself the importance of the new monument will be forced to wonder how and why the same word in the original gets such different renderings. prolonged study will be needed to bring out fully the whole meaning of many passages, and it may conduce to such a result to present the public with an alternative rendering in an english dress. needless to say, scholars will continue to use scheil's edition as the ultimate source, but for comparative purposes a literal translation may be welcome as an introduction. the monument itself consists of a block of black diorite, nearly eight feet high, found in pieces, but readily rejoined. it contains on the obverse a very interesting representation of the king hammurabi, receiving his laws from the seated sun-god samas, 'the judge of heaven and earth.' then follow, on the obverse, sixteen columns of writing with lines. there were five more columns on this side, but they have been erased and the stone repolished, doubtless by the elamite conqueror, who meant to inscribe his name and titles there. as we have lost those five columns we may regret that he did not actually do this, but there is now no trace of any hint as to who carried off the stone. on the reverse side are twenty-eight columns with more than lines of inscription. a great space, some lines, is devoted by the king to setting out his titles, his glory, his care for his subjects, his veneration of his gods, and incidentally revealing the cities and districts under his rule, with many interesting hints as to local cults. he also invokes blessing on those who should preserve and respect his monument, and curses those who should injure or remove it. a translation of this portion is not given, as it is unintelligible without copious comment and is quite foreign to the purpose of this book, which aims solely at making the code intelligible. i desire to express my obligations to dr. f. carr for his many kind suggestions as to the meaning of the code. the index will, it is hoped, serve more or less as a digest of the code. one great difficulty of any translation of a law document must always be that the technical expressions of one language cannot be rendered in terms that are co-extensive. the rendering will have implications foreign to the original. an attempt to minimise misconceptions is made by suggesting alternative renderings in the index. further, by labelling a certain section, as the law of incest, for example, one definitely fixes the sense in which the translation is to be read. hence it is hoped that the index will be no less helpful than the translation in giving readers an idea of what the code really meant. no doubt this remarkable monument will be made the subject of many valuable monographs in the future, which will greatly elucidate passages now obscure. but it was thought that the interest of the subject warranted an immediate issue of an english translation, which would place the chief features of the code before a wider public than those who could read the original. the present translation is necessarily tentative in many places, but it is hoped marks an advance over those already published. dr. h. winckler's rendering of the code came into my hands after this work was sent to the publishers, and i have not thought it necessary to withdraw any of my renderings. in some points he has improved upon professor scheil's work, in other points he is scarcely so good. but any discussion is not in place here. i gratefully acknowledge my obligations to both, but have used an independent judgment all through. i hope shortly to set out my reasons for the differences between us in a larger work. a few of dr. winckler's renderings are quoted in the index, and marked--winckler's tr. c. h. w. johns. cambridge, _january_ , . the text of the code section . if a man weave a spell and put a ban upon a man, and has not justified himself, he that wove the spell upon him shall be put to death. section . if a man has put a spell upon a man, and has not justified himself, he upon whom the spell is laid shall go to the holy river, he shall plunge into the holy river, and if the holy river overcome him, he who wove the spell upon him shall take to himself his house. if the holy river makes that man to be innocent, and has saved him, he who laid the spell upon him shall be put to death. he who plunged into the holy river shall take to himself the house of him who wove the spell upon him. section . if a man, in a case pending judgement, has uttered threats against the witnesses, or has not justified the word that he has spoken, if that case be a capital suit, that man shall be put to death. section . if he has offered corn or money to the witnesses, he shall himself bear the sentence of that case. section . if a judge has judged a judgement, decided a decision, granted a sealed sentence, and afterwards has altered his judgement, that judge, for the alteration of the judgement that he judged, one shall put him to account, and he shall pay twelvefold the penalty which was in the said judgement, and in the assembly one shall expel him from his judgement seat, and he shall not return, and with the judges at a judgement he shall not take his seat. section . if a man has stolen the goods of temple or palace, that man shall be killed, and he who has received the stolen thing from his hand shall be put to death. section . if a man has bought silver, gold, manservant or maidservant, ox or sheep or ass, or anything whatever its name, from the hand of a man's son, or of a man's slave, without witness and bonds, or has received the same on deposit, that man has acted the thief, he shall be put to death. section . if a man has stolen ox or sheep or ass, or pig, or ship, whether from the temple or the palace, he shall pay thirtyfold. if he be a poor man, he shall render tenfold. if the thief has nought to pay, he shall be put to death. section . if a man who has lost something of his, something of his that is lost has been seized in the hand of a man, the man in whose hand the lost thing has been seized has said, 'a giver gave it me,' or 'i bought it before witnesses,' and the owner of the thing that is lost has said, 'verily, i will bring witnesses that know my lost property,' the buyer has brought the giver who gave it him and the witnesses before whom he bought it, and the owner of the lost property has brought the witnesses who know his lost property, the judge shall see their depositions, the witnesses before whom the purchase was made and the witnesses knowing the lost property shall say out before god what they know; and if the giver has acted the thief he shall be put to death, the owner of the lost property shall take his lost property, the buyer shall take the money he paid from the house of the giver. section . if the buyer has not brought the giver who gave it him and the witnesses before whom he bought, and the owner of the lost property has brought the witnesses knowing his lost property, the buyer has acted the thief, he shall be put to death; the owner of the lost property shall take his lost property. section . if the owner of the lost property has not brought witnesses knowing his lost property, he has lied, he has stirred up strife, he shall be put to death. section . if the giver has betaken himself to his fate, the buyer shall take from the house of the giver fivefold as the penalty of that case. section . if that man has not his witnesses near, the judge shall set him a fixed time, up to six months, and if within six months he has not driven in his witnesses, that man has lied, he himself shall bear the blame of that case. section . if a man has stolen the son of a freeman, he shall be put to death. section . if a man has caused either a palace slave or palace maid, or a slave of a poor man or a poor man's maid, to go out of the gate, he shall be put to death. section . if a man has harboured in his house a manservant or a maidservant, fugitive from the palace, or a poor man, and has not produced them at the demand of the commandant, the owner of that house shall be put to death. section . if a man has captured either a manservant or a maidservant, a fugitive, in the open country and has driven him back to his master, the owner of the slave shall pay him two shekels of silver. section . if that slave will not name his owner he shall drive him to the palace, and one shall enquire into his past, and cause him to return to his owner. section . if he confine that slave in his house, and afterwards the slave has been seized in his hand, that man shall be put to death. section . if the slave has fled from the hand of his captor, that man shall swear by the name of god, to the owner of the slave, and shall go free. section . if a man has broken into a house, one shall kill him before the breach and bury him in it (?). section . if a man has carried on brigandage, and has been captured, that man shall be put to death. section . if the brigand has not been caught, the man who has been despoiled shall recount before god what he has lost, and the city and governor in whose land and district the brigandage took place shall render back to him whatever of his was lost. section . if it was a life, the city and governor shall pay one mina of silver to his people. section . if in a man's house a fire has been kindled, and a man who has come to extinguish the fire has lifted up his eyes to the property of the owner of the house, and has taken the property of the owner of the house, that man shall be thrown into that fire. section . if either a ganger or a constable, whose going on an errand of the king has been ordered, goes not, or hires a hireling and sends him in place of himself, that ganger or constable shall be put to death; his hireling shall take to himself his house. section . if a ganger or a constable, who is diverted to the fortresses of the king, and after him one has given his field and his garden to another, and he has carried on his business, if he returns and regains his city, one shall return to him his field and his garden, and he shall carry on his business himself. section . if a ganger or a constable who is diverted to the fortresses of the king, his son be able to carry on the business, one shall give him field and garden and he shall carry on his father's business. section . if his son is young and is not able to carry on his father's business, one-third of the field and garden shall be given to his mother, and his mother shall rear him. section . if a ganger or a constable has left alone his field, or his garden, or his house, from the beginning of his business, and has caused it to be waste, a second after him has taken his field, his garden, or his house, and has gone about his business for three years, if he returns and regains his city, and would cultivate his field, his garden, and his house, one shall not give them to him; he who has taken them and carried on his business shall carry it on. section . if it is one year only and he had let it go waste, and he shall return, one shall give his field, his garden, and his house, and he shall carry on his business. section . if a ganger or a constable who is diverted on an errand of the king's, a merchant has ransomed him and caused him to regain his city, if in his house there is means for his ransom, he shall ransom his own self; if in his house there is no means for his ransom, he shall be ransomed from the temple of his city; if in the temple of his city there is not means for his ransom, the palace shall ransom him. his field, his garden, and his house shall not be given for his ransom. section . if either a governor or a magistrate has taken to himself the men of the levy, or has accepted and sent on the king's errand a hired substitute, that governor or magistrate shall be put to death. section . if either a governor or a magistrate has taken to himself the property of a ganger, has plundered a ganger, has given a ganger to hire, has stolen from a ganger in a judgement by high-handedness, has taken to himself the gift the king has given the ganger, that governor or magistrate shall be put to death. section . if a man has bought the cattle or sheep which the king has given to the ganger from the hand of the ganger, he shall be deprived of his money. section . the field, garden, and house of a ganger, or constable, or a tributary, he shall not give for money. section . if a man has bought the field, garden, or house of a ganger, a constable, or a tributary, his tablet shall be broken and he shall be deprived of his money. the field, garden, or house he shall return to its owner. section . the ganger, constable, or tributary shall not write off to his wife, or his daughter, from the field, garden, or house of his business, and he shall not assign it for his debt. section . from the field, garden, and house which he has bought and acquired, he may write off to his wife or his daughter and give for his debt. section . a votary, merchant, or foreign sojourner may sell his field, his garden, or his house; the buyer shall carry on the business of the field, garden, or house which he has bought. section . if a man has bartered for the field, garden, or house of a ganger, constable, or tributary, and has given exchanges, the ganger, constable, or tributary shall return to his field, garden, or house, and shall keep the exchanges given him. section . if a man has taken a field to cultivate and has not caused the corn to grow in the field, and has not done the entrusted work on the field, one shall put him to account and he shall give corn like its neighbour. section . if he has not cultivated the field and has left it to itself, he shall give corn like its neighbour to the owner of the field, and the field he left he shall break up with hoes and shall harrow it and return to the owner of the field. section . if a man has taken on hire an unreclaimed field for three years to open out, and has left it aside, has not opened the field, in the fourth year he shall break it up with hoes, he shall hoe it, and harrow it, and return to the owner of the field, and he shall measure out ten _gur_ of corn _per gan_. section . if a man has given his field for produce to a cultivator, and has received the produce of his field, and afterwards a thunderstorm has ravaged the field or carried away the produce, the loss is the cultivator's. section . if he has not received the produce of his field, and has given the field either for one-half or for one-third, the corn that is in the field the cultivator and the owner of the field shall share according to the tenour of their contract. section . if the cultivator, because in the former year he did not set up his dwelling, has assigned the field to cultivation, the owner of the field shall not condemn the cultivator; his field has been cultivated, and at harvest time he shall take corn according to his bonds. section . if a man has a debt upon him and a thunderstorm ravaged his field or carried away the produce, or the corn has not grown through lack of water, in that year he shall not return corn to the creditor, he shall alter his tablet and he shall not give interest for that year. section . if a man has taken money from a merchant and has given to the merchant a field planted with corn or sesame, and said to him, 'cultivate the field, reap and take for thyself the corn and sesame which there is,' if the cultivator causes to grow corn or sesame in the field, at the time of harvest the owner of the field forsooth shall take the corn or sesame which is in the field and shall give corn for the money which he took from the merchant, and for its interests and for the dwelling of the cultivator, to the merchant. section . if the field was cultivated or the field of sesame was cultivated when he gave it, the owner of the field shall take the corn or sesame which is in the field and shall return the money and its interests to the merchant. section . if he has not money to return, the sesame, according to its market price for the money and its interest which he took from the merchant, according to the standard fixed by the king, he shall give to the merchant. section . if the cultivator has not caused corn or sesame to grow in the field, he shall not alter his bonds. section . if a man has neglected to strengthen his bank of the canal, has not strengthened his bank, a breach has opened out itself in his bank, and the waters have carried away the meadow, the man in whose bank the breach has been opened shall render back the corn which he has caused to be lost. section . if he is not able to render back the corn, one shall give him and his goods for money, and the people of the meadow whose corn the water has carried away shall share it. section . if a man has opened his runnel to water and has neglected it, and the field of his neighbour the waters have carried away, he shall pay corn like his neighbour. section . if a man has opened the waters, and the plants of the field of his neighbour the waters have carried away, he shall pay ten _gur_ of corn _per gan_. section . if a shepherd has caused the sheep to feed on the green corn, has not come to an agreement with the owner of the field, without the consent of the owner of the field has made the sheep feed off the field, the owner shall reap his fields, the shepherd who without consent of the owner of the field has fed off the field with sheep shall give over and above twenty _gur_ of corn _per gan_ to the owner of the field. section . if from the time that the sheep have gone up from the meadow, and the whole flock has passed through the gate, the shepherd has laid his sheep on the field and has caused the sheep to feed off the field, the shepherd who has made them feed off the field one shall watch, and at harvest time he shall measure out sixty _gur_ of corn _per gan_ to the owner of the field. section . if a man without the consent of the owner of the orchard has cut down a tree in a man's orchard, he shall pay half a mina of silver. section . if a man has given a field to a gardener to plant a garden and the gardener has planted the garden, four years he shall rear the garden, in the fifth year the owner of the garden and the gardener shall share equally, the owner of the garden shall cut off his share and take it. section . if the gardener has not included all the field in the planting, has left a waste place, he shall set the waste place in the share which he takes. section . if the field which has been given him to plant he has not planted as a garden, if it was corn land, the gardener shall measure out corn to the owner of the field, like its neighbour, as produce of the field for the years that are neglected, and he shall do the ordered work on the field and return to the owner of the field. section . if the field was unreclaimed land, he shall do the ordered work on the field and return it to the owner of the field and measure out ten _gur_ of corn _per gan_ for each year. section . if a man has given his garden to a gardener to farm, the gardener as long as he holds the garden shall give to the owner of the garden two-thirds from the produce of the garden, and he himself shall take one-third. section . if the gardener does not farm the garden and has diminished the yield, he shall measure out the yield of the garden like its neighbour. note.--here five columns of the monument have been erased, only the commencing characters of column xvii. being visible. the subjects of this last part included the further enactments concerning the rights and duties of gardeners, the whole of the regulations concerning houses let to tenants, and the relationships of the merchant to his agents, which continue on the obverse of the monument. [see page .] scheil estimates the lost portion at sections, and following him we recommence with section . . . . the interests of the money, as much as he took, he shall write down, and when he has numbered his days he shall answer his merchant. section . if where he has gone he has not seen prosperity, he shall make up and return the money he took, and the agent shall give to the merchant. section . if a merchant has given to the agent money as a favour, and where he has gone he has seen loss, the full amount of money he shall return to the merchant. section . if while he goes on his journey the enemy has made him quit whatever he was carrying, the agent shall swear by the name of god and shall go free. section . if the merchant has given to the agent corn, wool, oil, or any sort of goods, to traffic with, the agent shall write down the price and hand over to the merchant; the agent shall take a sealed memorandum of the price which he shall give to the merchant. section . if an agent has forgotten and has not taken a sealed memorandum of the money he has given to the merchant, money that is not sealed for, he shall not put in his accounts. section . if an agent has taken money from a merchant and his merchant has disputed with him, that merchant shall put the agent to account before god and witnesses concerning the money taken, and the agent shall give to the merchant the money as much as he has taken threefold. section . if a merchant has wronged an agent and the agent has returned to his merchant whatever the merchant gave him, the merchant has disputed with the agent as to what the agent gave him, that agent shall put the merchant to account before god and witnesses, and the merchant because he disputed the agent shall give to the agent whatever he has taken sixfold. section . if a wine merchant has not received corn as the price of drink, has received silver by the great stone, and has made the price of drink less than the price of corn, that wine merchant one shall put her to account and throw her into the water. section . if a wine merchant has collected a riotous assembly in her house and has not seized those rioters and driven them to the palace, that wine merchant shall be put to death. section . if a votary, a lady, who is not living in the convent, has opened a wine shop or has entered a wine shop for drink, that woman one shall burn her. section . if a wine merchant has given sixty _ka_ of best beer at harvest time for thirst, she shall take fifty _ka_ of corn. section . if a man stays away on a journey and has given silver, gold, precious stones, or treasures of his hand to a man, has caused him to take them for transport, and that man whatever was for transport, where he has transported has not given and has taken to himself, the owner of the transported object, that man, concerning whatever he had to transport and gave not, shall put him to account, and that man shall give to the owner of the transported object fivefold whatever was given him. section . if a man has corn or money upon a man, and without consent of the owner of the corn has taken corn from the heap or from the store, that man for taking of the corn without consent of the owner of the corn from the heap or from the store, one shall put him to account, and he shall return the corn as much as he has taken, and shall lose all that he gave whatever it be. section . if a man has not corn or money upon a man and levies a distraint, for every single distraint he shall pay one-third of a mina. section . if a man has corn or money upon a man and has levied a distraint, and the distress in the house of his distrainer dies a natural death, that case has no penalty. section . if the distress has died in the house of his distrainer, of blows or of want, the owner of the distress shall put his merchant to account, and if he be the son of a freeman (that has died), his son one shall kill; if the slave of a free-man, he shall pay one-third of a mina of silver, and he shall lose all that he gave whatever it be. section . if a man a debt has seized him, and he has given his wife, his son, his daughter for the money, or has handed over to work off the debt, for three years they shall work in the house of their buyer or exploiter, in the fourth year he shall fix their liberty. section . if he has handed over a manservant or a maidservant to work off a debt, and the merchant shall remove and sell them for money, no one can object. section . if a debt has seized a man, and he has handed over for the money a maidservant who has borne him children, the money the merchant paid him the owner of the maid shall pay, and he shall ransom his maid. section . if a man has heaped up his corn in a heap in the house of a man, and in the granary a disaster has taken place, or the owner of the house has opened the granary and taken the corn, or has disputed as to the total amount of the corn that was heaped up in his house, the owner of the corn shall recount his corn before god, the owner of the house shall make up and return the corn which he took and shall give to the owner of the corn. section . if a man has heaped up corn in the house of a man, he shall give as the price of storage five _ka_ of corn _per gur_ of corn _per annum_. section . if a man shall give silver, gold, or anything whatever, to a man on deposit, all whatever he shall give he shall shew to witnesses and fix bonds and shall give on deposit. section . if without witness and bonds he has given on deposit, and where he has deposited they keep disputing him, this case has no remedy. section . if a man has given silver, gold, or anything whatever to a man on deposit before witnesses and he has disputed with him, one shall put that man to account, and whatever he has disputed he shall make up and shall give. section . if a man has given anything of his on deposit, and where he gave it, either by housebreaking or by rebellion, something of his has been lost, along with something of the owner of the house, the owner of the house who has defaulted all that was given him on deposit and has been lost, he shall make good and render to the owner of the goods, the owner of the house shall seek out whatever of his is lost and take it from the thief. section . if a man has lost nothing of his, but has said that something of his is lost, has exaggerated his loss, since nothing of his is lost, his loss he shall recount before god, and whatever he has claimed he shall make up and shall give to his loss. section . if a man has caused the finger to be pointed against a votary, or a man's wife, and has not justified himself, that man they shall throw down before the judge and brand his forehead. section . if a man has married a wife and has not laid down her bonds, that woman is no wife. section . if the wife of a man has been caught in lying with another male, one shall bind them and throw them into the waters. if the owner of the wife would save his wife or the king would save his servant (he may). section . if a man has forced the wife of a man who has not known the male and is dwelling in the house of her father, and has lain in her bosom and one has caught him, that man shall be killed, the woman herself shall go free. section . if the wife of a man her husband has accused her, and she has not been caught in lying with another male, she shall swear by god and shall return to her house. section . if a wife of a man on account of another male has had the finger pointed at her, and has not been caught in lying with another male, for her husband she shall plunge into the holy river. section . if a man has been taken captive and in his house there is maintenance, his wife has gone out from her house and entered into the house of another, because that woman has not guarded her body, and has entered into the house of another, one shall put that woman to account and throw her into the waters. section . if a man has been taken captive and in his house there is no maintenance, and his wife has entered into the house of another, that woman has no blame. section . if a man has been taken captive and in his house there is no maintenance before her, his wife has entered into the house of another and has borne children, afterwards her husband has returned and regained his city, that woman shall return to her bridegroom, the children shall go after their father. section . if a man has left his city and fled, after him his wife has entered the house of another, if that man shall return and has seized his wife, because he hated his city and fled, the wife of the truant shall not return to her husband. section . if a man has set his face to put away his concubine who has borne him children or his wife who has granted him children, to that woman he shall return her her marriage portion and shall give her the usufruct of field, garden, and goods, and she shall bring up her children. from the time that her children are grown up, from whatever is given to her children they shall give her a share like that of one son, and she shall marry the husband of her choice. section . if a man has put away his bride who has not borne him children, he shall give her money as much as her dowry, and shall pay her the marriage portion which she brought from her father's house, and shall put her away. section . if there was no dowry, he shall give her one mina of silver for a divorce. section . if he is a poor man, he shall give her one-third of a mina of silver. section . if the wife of a man who is living in the house of her husband has set her face to go out and has acted the fool, has wasted her house, has belittled her husband, one shall put her to account, and if her husband has said, 'i put her away,' he shall put her away and she shall go her way, he shall not give her anything for her divorce. if her husband has not said 'i put her away,' her husband shall marry another woman, that woman as a maidservant shall dwell in the house of her husband. section . if a woman hates her husband and has said 'thou shalt not possess me,' one shall enquire into her past what is her lack, and if she has been economical and has no vice, and her husband has gone out and greatly belittled her, that woman has no blame, she shall take her marriage portion and go off to her father's house. section . if she has not been economical, a goer about, has wasted her house, has belittled her husband, that woman one shall throw her into the waters. section . if a man has espoused a votary, and that votary has given a maid to her husband and has brought up children, that man has set his face to take a concubine, one shall not countenance that man, he shall not take a concubine. section . if a man has espoused a votary, and she has not granted him children and he has set his face to take a concubine, that man shall take a concubine, he shall cause her to enter into his house. that concubine he shall not put on an equality with the wife. section . if a man has espoused a votary, and she has given a maid to her husband and she has borne children, afterwards that maid has made herself equal with her mistress, because she has borne children her mistress shall not sell her for money, she shall put a mark upon her and count her among the maidservants. section . if she has not borne children her mistress may sell her for money. section . if a man has married a wife and a sickness has seized her, he has set his face to marry a second wife, he may marry her, his wife whom the sickness has seized he shall not put her away, in the home she shall dwell, and as long as she lives he shall sustain her. section . if that woman is not content to dwell in the house of her husband, he shall pay her her marriage portion which she brought from her father's house, and she shall go off. section . if a man to his wife has set aside field, garden, house, or goods, has left her a sealed deed, after her husband her children shall not dispute her, the mother after her to her children whom she loves shall give, to brothers she shall not give. section . if a woman, who is dwelling in the house of a man, her husband has bound himself that she shall not be seized on account of a creditor of her husband's, has granted a deed, if that man before he married that woman had a debt upon him, the creditor shall not seize his wife, and if that woman before she entered the man's house had a debt upon her, her creditor shall not seize her husband. section . if from the time that that woman entered into the house of the man a debt has come upon them, both together they shall answer the merchant. section . if a man's wife on account of another male has caused her husband to be killed, that woman upon a stake one shall set her. section . if a man has known his daughter, that man one shall expel from the city. section . if a man has betrothed a bride to his son and his son has known her, and he afterwards has lain in her bosom and one has caught him, that man one shall bind and cast her into the waters. section . if a man has betrothed a bride to his son and his son has not known her, and he has lain in her bosom, he shall pay her half a mina of silver and shall pay to her whatever she brought from her father's house, and she shall marry the husband of her choice. section . if a man, after his father, has lain in the bosom of his mother, one shall burn them both of them together. section . if a man, after his father, has been caught in the bosom of her that brought him up, who has borne children, that man shall be cut off from his father's house. section . if a man who has brought in a present to the house of his father-in-law, has given a dowry, has looked upon another woman, and has said to his father-in-law, 'thy daughter i will not marry,' the father of the daughter shall take to himself all that he brought him. section . if a man has brought in a present to the house of his father-in-law, has given a dowry, and the father of the daughter has said, 'my daughter i will not give thee,' he shall make up and return everything that he brought him. section . if a man has brought in a present to the house of his father-in-law, has given a dowry, and a comrade of his has slandered him, his father-in-law has said to the claimant of the wife, 'my daughter thou shalt not espouse,' he shall make up and return all that he brought him, and his comrade shall not marry his wife. section . if a man has married a wife and she has borne him children, and that woman has gone to her fate, her father shall have no claim on her marriage portion, her marriage portion is her children's forsooth. section . if a man has married a wife, and she has not granted him children, that woman has gone to her fate, if his father-in-law has returned him the dowry that that man brought to the house of his father- in-law, her husband shall have no claim on the marriage portion of that woman, her marriage portion belongs to the house of her father forsooth. section . if his father-in-law has not returned him the dowry, he shall deduct all her dowry from his marriage portion and shall return her marriage portion to the house of her father. section . if a man has apportioned to his son, the first in his eyes, field, garden, and house, has written him a sealed deed, after the father has gone to his fate, when the brothers divide, the present his father gave him he shall take, and over and above he shall share equally in the goods of the father's house. section . if a man, in addition to the children which he has possessed, has taken a wife, for his young son has not taken a wife, after the father has gone to his fate, when the brothers divide, from the goods of the father's house to their young brother who has not taken a wife, beside his share, they shall assign him money as a dowry and shall cause him to take a wife. section . if a man has taken a wife, and she has borne him sons, that woman has gone to her fate, after her, he has taken to himself another woman and she has borne children, afterwards the father has gone to his fate, the children shall not share according to their mothers, they shall take the marriage portions of their mothers and shall share the goods of their father's house equally. section . if a man has set his face to cut off his son, has said to the judge 'i will cut off my son,' the judge shall enquire into his reasons, and if the son has not committed a heavy crime which cuts off from sonship, the father shall not cut off his son from sonship. section . if he has committed against his father a heavy crime which cuts off from sonship, for the first time the judge shall bring back his face; if he has committed a heavy crime for the second time, the father shall cut off his son from sonship. section . if a man his wife has borne him sons, and his maidservant has borne him sons, the father in his lifetime has said to the sons which the maidservant has borne him 'my sons,' has numbered them with the sons of his wife, after the father has gone to his fate, the sons of the wife and the sons of the maidservant shall share equally in the goods of the father's house; the sons that are sons of the wife at the sharing shall choose and take. section . and if the father in his lifetime, to the sons which the maidservant bore him, has not said 'my sons,' after the father has gone to his fate the sons of the maid shall not share with the sons of the wife in the goods of the father's house, one shall assign the maidservant and her sons freedom; the sons of the wife shall have no claim on the sons of the maidservant for servitude, the wife shall take her marriage portion and the settlement which her husband gave her and wrote in a deed for her and shall dwell in the dwelling of her husband, as long as lives she shall enjoy, for money she shall not give, after her they are her sons' forsooth. section . if her husband did not give her a settlement, one shall pay her her marriage portion, and from the goods of her husband's house she shall take a share like one son. if her sons worry her to leave the house, the judge shall enquire into her reasons and shall lay the blame on the sons, that woman shall not go out of her husband's house. if that woman has set her face to leave, the settlement which her husband gave her she shall leave to her sons, the marriage portion from her father's house she shall take and she shall marry the husband of her choice. section . if that woman where she has entered shall have borne children to her later husband after that woman has died, the former and later sons shall share her marriage portion. section . if she has not borne children to her later husband, the sons of her bridegroom shall take her marriage portion. section . if either the slave of the palace or the slave of the poor man has taken to wife the daughter of a gentleman, and she has borne sons, the owner of the slave shall have no claim on the sons of the daughter of a gentleman for servitude. section . and if a slave of the palace or the slave of a poor man has taken to wife the daughter of a gentleman and, when he married her, with a marriage portion from her father's house she entered into the house of the slave of the palace, or of the slave of the poor man, and from the time that they started to keep house and acquired property, after either the servant of the palace or the servant of the poor man has gone to his fate, the daughter of the gentleman shall take her marriage portion, and whatever her husband and she from the time they started have acquired one shall divide in two parts and the owner of the slave shall take one-half, the daughter of a gentleman shall take one-half for her children. if the gentleman's daughter had no marriage portion, whatever her husband and she from the time they started have acquired one shall divide into two parts, and the owner of the slave shall take half, the gentleman's daughter shall take half for her sons. section . if a widow whose children are young has set her face to enter into the house of another, without consent of a judge she shall not enter. when she enters into the house of another the judge shall enquire into what is left of her former husband's house, and the house of her former husband to her later husband, and that woman he shall entrust and cause them to receive a deed. they shall keep the house and rear the little ones. not a utensil shall they give for money. the buyer that has bought a utensil of a widow's sons shall lose his money and shall return the property to its owners. section . if a lady, votary, or a vowed woman whose father has granted her a marriage portion, has written her a deed, in the deed he has written her has not, however, written her 'after her wherever is good to her to give,' has not permitted her all her choice, after the father has gone to his fate, her brothers shall take her field and her garden, and according to the value of her share shall give her corn, oil, and wool, and shall content her heart. if her brothers have not given her corn, oil, and wool according to the value of her share, and have not contented her heart, she shall give her field or her garden to a cultivator, whoever pleases her, and her cultivator shall sustain her. the field, garden, or whatever her father has given her she shall enjoy as long as she lives, she shall not give it for money, she shall not answer to another, her sonship is her brothers' forsooth. section . if a lady, a votary, or a woman vowed, whose father has granted her a marriage portion, has written her a deed, in the deed he wrote her has written her 'after her wherever is good to her to give,' has allowed to her all her choice, after the father has gone to his fate, after her wherever is good to her she shall give, her brothers have no claim on her. section . if a father to his daughter a votary, bride, or vowed woman has not granted a marriage portion, after the father has gone to his fate, she shall share in the goods of the father's house a share like one son, as long as she lives she shall enjoy, after her it is her brothers' forsooth. section . if a father has vowed to god a votary, hierodule, or _nu- bar_, and has not granted her a marriage portion, after the father has gone to his fate she shall share in the goods of the father's house one- third of her sonship share and shall enjoy it as long as she lives, after her it is her brothers' forsooth. section . if a father, to his daughter, a votary of marduk, of babylon, has not granted her a marriage portion, has not written her a deed, after the father has gone to his fate, she shall share with her brothers in the goods of the father's house, one-third of her sonship share, and shall pay no tax; a votary of marduk, after her, shall give wherever it is good to her. section . if a father to his daughter, a concubine, has granted her a marriage portion, has given her to a husband, has written her a deed, after the father has gone to his fate, she shall not share in the goods of the father's house. section . if a man to his daughter, a concubine, has not granted a marriage portion, has not given her to a husband, after the father has gone to his fate, her brothers according to the capacity of the father's house, shall grant her a marriage portion and shall give her to a husband. section . if a man has taken a young child 'from his waters' to sonship, and has reared him up, no one has any claim against that nursling. section . if a man has taken a young child to sonship, and when he took him his father and mother rebelled, that nursling shall return to his father's house. section . the son of a _ner-se-ga_, a palace warder, or the son of a vowed woman no one has any claim upon. section . if an artisan has taken a son to bring up, and has caused him to learn his handicraft, no one has any claim. section . if he has not caused him to learn his handicraft, that nursling shall return to his father's house. section . if a man the child whom he took to his sonship and has brought him up, has not numbered him with his sons, that nursling shall return to his father's house. section . if a man, after a young child whom he has taken to his sonship and brought him up, has made a house for himself and acquired children, and has set his face to cut off the nursling, that child shall not go his way, the father that brought him up shall give to him from his goods one-third of his sonship, and he shall go off; from field, garden, and house he shall not give him. section . if a son of a palace warder, or of a vowed woman, to the father that brought him up, and the mother that brought him up, has said 'thou art not my father, thou art not my mother,' one shall cut out his tongue. section . if a son of a palace warder, or of a vowed woman, has known his father's house, and has hated the father that brought him up or the mother that brought him up, and has gone off to the house of his father, one shall tear out his eye. section . if a man has given his son to a wet nurse, that son has died in the hand of the wet nurse, the wet nurse without consent of his father and his mother has procured another child, one shall put her to account, and because, without consent of his father and his mother, she has procured another child, one shall cut off her breasts. section . if a man has struck his father, his hands one shall cut off. section . if a man has caused the loss of a gentleman's eye, his eye one shall cause to be lost. section . if he has shattered a gentleman's limb, one shall shatter his limb. section . if he has caused a poor man to lose his eye or shattered a poor man's limb, he shall pay one mina of silver. section . if he has caused the loss of the eye of a gentleman's servant or has shattered the limb of a gentleman's servant, he shall pay half his price. section . if a man has made the tooth of a man that is his equal to fall out, one shall make his tooth fall out. section . if he has made the tooth of a poor man to fall out, he shall pay one-third of a mina of silver. section . if a man has struck the strength of a man who is great above him, he shall be struck in the assembly with sixty strokes of a cow- hide whip. section . if a man of gentle birth has struck the strength of a man of gentle birth who is like himself, he shall pay one mina of silver. section . if a poor man has struck the strength of a poor man, he shall pay ten shekels of silver. section . if a gentleman's servant has struck the strength of a free- man, one shall cut off his ear. section . if a man has struck a man in a quarrel, and has caused him a wound, that man shall swear 'i do not strike him knowing' and shall answer for the doctor. section . if he has died of his blows, he shall swear, and if he be of gentle birth he shall pay half a mina of silver. section . if he be the son of a poor man, he shall pay one-third of a mina of silver. section . if a man has struck a gentleman's daughter and caused her to drop what is in her womb, he shall pay ten shekels of silver for what was in her womb. section . if that woman has died, one shall put to death his daughter. section . if the daughter of a poor man through his blows he has caused to drop that which is in her womb, he shall pay five shekels of silver. section . if that woman has died, he shall pay half a mina of silver. section . if he has struck a gentleman's maidservant and caused her to drop that which is in her womb, he shall pay two shekels of silver. section . if that maidservant has died, he shall pay one-third of a mina of silver. section . if a doctor has treated a gentleman for a severe wound with a bronze lancet and has cured the man, or has opened an abscess of the eye for a gentleman with the bronze lancet and has cured the eye of the gentleman, he shall take ten shekels of silver. section . if he (the patient) be the son of a poor man, he shall take five shekels of silver. section . if he be a gentleman's servant, the master of the servant shall give two shekels of silver to the doctor. section . if the doctor has treated a gentleman for a severe wound with a lancet of bronze and has caused the gentleman to die, or has opened an abscess of the eye for a gentleman with the bronze lancet and has caused the loss of the gentleman's eye, one shall cut off his hands. section . if a doctor has treated the severe wound of a slave of a poor man with a bronze lancet and has caused his death, he shall render slave for slave. section . if he has opened his abscess with a bronze lancet and has made him lose his eye, he shall pay money, half his price. section . if a doctor has cured the shattered limb of a gentleman, or has cured the diseased bowel, the patient shall give five shekels of silver to the doctor. section . if it is the son of a poor man, he shall give three shekels of silver. section . if a gentleman's servant, the master of the slave shall give two shekels of silver to the doctor. section . if a cow doctor or a sheep doctor has treated a cow or a sheep for a severe wound and cured it, the owner of the cow or sheep shall give one-sixth of a shekel of silver to the doctor as his fee. section . if he has treated a cow or a sheep for a severe wound and has caused it to die, he shall give a quarter of its price to the owner of the ox or sheep. section . if a brander without consent of the owner of the slave has branded a slave with an indelible mark, one shall cut off the hands of that brander. section . if a man has deceived the brander, and has caused him to brand an indelible mark on the slave, that man one shall kill him and bury him in his house, the brander shall swear, 'not knowing i branded him,' and shall go free. section . if a builder has built a house for a man and has completed it, he shall give him as his fee two shekels of silver _per sar_ of house. section . if a builder has built a house for a man and has not made strong his work, and the house he built has fallen, and he has caused the death of the owner of the house, that builder shall be put to death. section . if he has caused the son of the owner of the house to die, one shall put to death the son of that builder. section . if he has caused the slave of the owner of the house to die, he shall give slave for slave to the owner of the house. section . if he has caused the loss of goods, he shall render back whatever he has caused the loss of, and because he did not make strong the house he built, and it fell, from his own goods he shall rebuild the house that fell. section . if a builder has built a house for a man, and has not jointed his work, and the wall has fallen, that builder at his own cost shall make good that wall. section . if a boatman has navigated a ship of sixty _gur_ for a man, he shall give him two shekels of silver for his fee. section . if a boatman has navigated a ship for a man and has not made his work trustworthy, and in that same year that he worked that ship it has suffered an injury, the boatman shall exchange that ship or shall make it strong at his own expense and shall give a strong ship to the owner of the ship. section . if a man has given his ship to a boatman, on hire, and the boatman has been careless, has grounded the ship, or has caused it to be lost, the boatman shall render ship for ship to the owner. section . if a man has hired a boatman and ship, and with corn, wool, oil, dates, or whatever it be as freight, has freighted her, that boatman has been careless and grounded the ship, or has caused what is in her to be lost, the boatman shall render back the ship which he has grounded and whatever in her he has caused to be lost. section . if a boatman has grounded the ship of a man and has refloated her, he shall give money to half her price. section . if a man has hired a boatman, he shall give him six _gur_ of corn per year. section . if a ship that is going forward has struck a ship at anchor and has sunk her, the owner of the ship that has been sunk whatever he has lost in his ship shall recount before god, and that of the ship going forward which sunk the ship at anchor shall render to him his ship and whatever of his was lost. section . if a man has taken an ox on distraint, he shall pay one- third of a mina of silver. section . if a man has hired a working ox for one year, he shall pay four _gur_ of corn as its hire. section . if a milch cow, he shall give three _gur_ of corn to its owner. section . if a man has hired an ox or sheep and a lion has killed it in the open field, that loss is for its owner forsooth. section . if a man has hired an ox and through neglect or by blows has caused it to die, ox for ox to the owner of the ox he shall render. section . if a man has hired an ox and has crushed its foot or has cut its nape, ox for ox to the owner of the ox he shall render. section . if a man has hired an ox and has caused it to lose its eye, he shall pay half its price to the owner of the ox. section . if a man has hired an ox, and has crushed its horn, cut off its tail, or pierced its nostrils, he shall pay a quarter of its price. section . if a man has hired an ox, and god has struck it and it has died, the man who has hired the ox shall swear before god and shall go free. section . if a wild bull in his charge has gored a man and caused him to die, that case has no remedy. section . if the ox has pushed a man, by pushing has made known his vice, and he has not blunted his horn, has not shut up his ox, and that ox has gored a man of gentle birth and caused him to die, he shall pay half a mina of silver. section . if a gentleman's servant, he shall pay one-third of a mina of silver. section . if a man has hired a man to reside in his field and has furnished him seed, has entrusted him the oxen and harnessed them for cultivating the field--if that man has stolen the corn or plants, and they have been seized in his hands, one shall cut off his hands. section . if he has taken the seed, worn out the oxen, from the seed which he has hoed he shall restore. section . if he has hired out the oxen of the man or has stolen the corn and has not caused it to grow in the field, that man one shall put him to account and he shall measure out sixty _gur_ of corn _per gan_ of land. section . if his compensation he is not able to pay, one shall remove the oxen from that field. section . if a man has hired a harvester, he shall give him eight _gur_ of corn per year. section . if a man has hired an ox-driver, he shall give him six _gur_ of corn per year. section . if a man has stolen a watering machine from the meadow, he shall give five shekels of silver to the owner of the watering machine. section . if he has stolen a watering bucket or a harrow, he shall pay three shekels of silver. section . if a man has hired a herdsman for the cows or a shepherd for the sheep, he shall give him eight _gur_ of corn _per annum_. section . if a man, ox, or sheep to [this section is defaced]. section . if he has caused an ox or sheep which was given him to be lost, ox for ox, sheep for sheep, he shall render to their owner. section . if a herdsman who has had cows or sheep given him to shepherd, has received his hire, whatever was agreed, and his heart was contented, has diminished the cows, diminished the sheep, lessened the offspring, he shall give offspring and produce according to the tenour of his bonds. section . if a shepherd to whom cows and sheep have been given him to breed, has falsified and changed their price, or has sold them, one shall put him to account, and he shall render cows and sheep to their owner tenfold what he has stolen. section . if in a sheepfold a stroke of god has taken place or a lion has killed, the shepherd shall purge himself before god, and the accident to the fold the owner of the fold shall face it. section . if a shepherd has been careless and in a sheepfold caused a loss to take place, the shepherd shall make good the fault of the loss which he has caused to be in the fold and shall pay cows or sheep and shall give to their owner. section . if a man has hired an ox, for threshing, twenty _ka_ of corn is its hire. section . if he has hired an ass, for threshing, ten _ka_ of corn is its hire. section . if he has hired a calf (goat?), for threshing, one _ka_ of corn is its hire. section . if a man has hired oxen, a wagon, and its driver, he shall give one hundred and eighty _ka_ of corn _per diem_. section . if a man has hired a wagon by itself, he shall give forty _ka_ of corn _per diem_. section . if a man has hired a labourer, from the beginning of the year till the fifth month, he shall give six _se_ of silver _per diem_; from the sixth month to the end of the year, he shall give five _se_ of silver _per diem_. section . if a man shall hire an artisan-- (_a_) the hire of a . . . five _se_ of silver (_b_) the hire of a brickmaker five _se_ of silver (_c_) the hire of a tailor . five _se_ of silver (_d_) the hire of a stone-cutter . _se_ of silver (_e_) the hire of a . . . _se_ of silver (_f_) the hire of a . . . _se_ of silver (_g_) the hire of a carpenter four _se_ of silver (_h_) the hire of a . . . four _se_ of silver (_i_) the hire of a . . . _se_ of silver (_j_) the hire of a builder. . . _se_ of silver _per diem_ he shall give. section . if a man has hired a (boat?) _per diem_, her hire is three _se_ of silver. section . if a man has hired a fast ship, he shall give two and a half _se_ of silver _per diem_ as her hire. section . if a man has hired a ship of sixty _gur_, he shall give one- sixth of a shekel of silver _per diem_ as her hire. section . if a man has bought a manservant or a maidservant, and he has not fulfilled his month and the _bennu_ sickness has fallen upon him, he shall return him to the seller, and the buyer shall take the money he paid. section . if a man has bought a manservant or a maidservant and has a complaint, his seller shall answer the complaint. section . if a man has bought in a foreign land the manservant or the maidservant of a man, when he has come into the land, and the owner of the manservant or the maidservant has recognised his manservant or his maidservant, if the manservant or maidservant are natives without price he shall grant them their freedom. section . if they are natives of another land the buyer shall tell out before god the money he paid, and the owner of the manservant or the maidservant shall give to the merchant the money he paid, and shall recover his manservant or his maidservant. section . if a slave has said to his master 'thou art not my master,' as his slave one shall put him to account and his master shall cut off his ear. * * * * * the judgements of righteousness which hammurabi the mighty king confirmed and caused the land to take a sure guidance and a gracious rule. the following three sections, which are known to belong to the code from copies made for an assyrian king in the seventh century b.c., are given here for the sake of completeness. they obviously come within the space once occupied by the five erased columns. section x. if a man has taken money from a merchant and has given a plantation of dates to the merchant, has said to him, 'the dates that are in my plantation take for thy money,' that merchant shall not agree, the dates that are in the plantation the owner of the plantation shall take, and he shall answer to the merchant for the money and its interests according to the tenour of his bond. the dates that are over, which are in the plantation, the owner of the plantation shall take forsooth. section y. . . . the man dwelling (in the house) has given to the owner (of the house) the money of its rent in full for the year, the owner of the house has ordered the dweller to go out when his days are not full, the owner of the house, because he has ordered the dweller to leave when his days are not full, (shall give) of the money which the dweller gave him. . . . section z. if a man has to pay, in money or corn, but has not money or corn to pay with, but has goods, whatever is in his hands, before witnesses, according to what he has brought, he shall give to his merchant. the merchant shall not object, he shall receive it. index _the numbers refer to the sections of the code_. abatement, of rent, for loss of crop, , . of interest, . accidental loss, by storm or deluge, falls on tenant, . shared by landlord, if before rent is paid, . by drought, storm, or deluge, postpones payment of debt, . adjournment, for production of witnesses, . not to exceed six months, . adoption, of natural son, . of child of living parents, . parents may object, . votary or palace official cannot object, . by artisan, . no one can reclaim child, if he has been taught handicraft, . otherwise can be reclaimed, . adopted son must be formally acknowledged, . if not, returns to real parents on death of adoptive father, . adopted son cannot be cut off without legal process, . has one-third child's share, . but no part of estate, . repudiation by adopted son severely punished, ff. adultery, . penalty, drowning, . agent, relation to principal or merchant-- must keep accounts, . of money received, . of interest due, . if unsuccessful, repays capital only, . if a loser, repays capital in full, . if robbed, can be excused payment, . must keep account of goods, . stating money value, . take inventory, . give receipt, . pays threefold for his defaults, . allotment, to ganger, constable, or tributary, . _see_ benefice. allowances, to divorced wife, . usufruct of field, garden, and goods. alteration of date for repayment, . called 'wetting tablet,' . approving lease, . _see_ lease. assault, of gentleman by gentleman, , . in a quarrel, . of poor man by poor man, . of gentleman by slave, . of pregnant woman, causing miscarriage-- gentle woman, . poor woman, . slave, . causing her death-- gentle woman, . poor woman, . slave, . _see_ under fines. assessment of damages-- by sheep to growing crops, . ,, to ripe crops, . for cutting down tree in orchard, . for not carrying out terms of lease, , . for assault. _see_ fines. for carelessness. _see_ neglect. for culpable lack of skill. _see_ doctor. assignment for debt-- of bare field, . of corn field, . of date plantation, x. of crop, y. of wife, child, or slave, to work off debt, . average yield, assessed damages, , , , , , . backbiting, . bailiff. _see_ reeve, ganger, constable, benefice. bailment, without witness or deed-- from domestic inferior=theft, . banishment. _see_ exile. bearing sentence sought to be obtained. _see_ retaliation. benefice, the land, house, garden, and stock-- assigned by king to ganger, constable, or tributary, . inalienable, , , . sale, or purchase, forbidden, . price paid forfeited, . not to be exchanged, . not to be devised to females, . may be deputed, . hereditary, . forfeited, by disuse, . may not be pledged, . saleable to other official (?), . betrothed, maiden lived in father's house, . bigamy, in ignorance, . blood money. _see_ wit. boatmen, their duties and privileges, - . same word denotes boat-builder (winckler's tr.). boats, passenger, . freight boat, . building, . of _gur_, built, (winckler's tr.) collision of, . wreck of, , . bond, a written deed or contract-- needed for legal purchase, . for debt, . for storage, . for legal marriage, . shepherd's, . branding, brander, , . on forehead, for slander, . slave without consent of owner, , . brawling, in wine shop, . breach of contract-- by lessee, , , . _see_ lease, metayer, neglect. of promise, . breasts, cut off, . bride-price, a present to prospective father-in-law-- usually returned with wife to bridegroom, . given back by husband to divorced wife, if not a mother, . returned to suitor, if not accepted, , . forfeited if suitor changes his mind, . if not given back to bridegroom with wife, deducted from marriage portion repaid to father-in-law, on death of wife, without children, . assessed at one mina of silver, for gentleman, . ,, one-third mina, for poor man, . to be set aside for unmarried son, by his brothers, on division of father's property, . brothel (?). _see_ wine shop. builder's duties and privileges, . of boats, (winckler's tr.). burning, as penalty-- for votary, opening or entering wine shop, . man and mother in incest, . thief at fire, . business. _see_ agent, merchant, office. buyer of benefice must discharge duties, . calling to account, , , , , , , , , , , . capital suit, . captives, , . carrier's privileges and responsibilities, . cattle, damage _feasant pauperies_, . changeling, foisted on parents, . charges, for warehousing, . one-sixtieth value, . children. _see_ custody, mother, remarriage, widow. born of wife remarried, uuder impression her husband was dead, stay with second husband, . not to dispute mother's settlement, . share equally at father's death, . reserving settlements by deed, . of second marriage to be furnished with bride-price, or portion, . of different mothers, share separately own mother's portions, . but father's property equally, . of bride and maid share equally, if latter acknowledged as sons in father's lifetime, former having preference, . otherwise, children of maid do not share, . of slave woman and free father are free, . of slave man and free mother are free, . these take half father's goods at death, . collision, . commission, trade on, - . _see_ agent, merchant. compensation, for eviction of tenant, y. for highway robbery, . composition, for loss of life, . for bride-price, . concubine, divorced, . not allowed, if wife provides maid, . allowed, if votary wife has no children, . not to rival wife, . father may give daughter as, . and give marriage portion, . if so, she has no share of his goods at his death, . otherwise, brothers must give her a portion, . conjugal rights, denial of, . conscript. _see_ militia. constable, or bailiff, runner, - . not to depute duty, . in enforced absence on royal business, . may depute, and resume on return, . son may be deputy, . provision for child, in absence, . neglect of benefice, . three years' limit, . one year does not forfeit, . captured abroad on king's business, . to be ransomed, . benefice inalienable, . benefice protected, . not to be hired out, . plundered, . oppressed, . sale of benefice illegal, . benefice not to be exchanged, . contract. _see_ bond. corn land, . corporate liability, , . corvee. _see_ militia. courtship, , . cow, in milk, hire of, . creditor. _see also_ merchant. must not ill treat pledge for debt, . must release at end of three years, . may sell pledged slave, on removal, . may not repay himself from debtor's goods, . crop, assigned for debt, . sold at king's price, . crown, man's. _see_ strength. cultivation of fields-- operations needful, . custody of child, in mother, . cutting down trees-- assessment of damage, half mina of silver per tree, . damage to crops, by sheep-- assessed at twenty _gur per gan_, . to ripe crops, at sixty _gur per gan_, . by flooding field, . by cutting down trees, assessed at half mina of silver per tree, . damages, for breach of contract, , . for eviction from purchase, . for eviction from house, y. _damnum sine injuria_, , , , . date palm, plantation of, x. daughter cannot inherit benefice, . death penalty, inflicted for-- witchcraft, . threatening witnesses, . perjury, . theft, . receiving stolen goods, . buying from domestic inferior, . taking on deposit from domestic inferior, . in default of multiple restitution, for theft of second order, . appropriation of lost properly, . selling lost property, . vexatious claim of property as lost, . kidnapping, . procuring desertion of slave, . harbouring fugitive slave, . ,, of defaulting militia, . detaining fugitive slave, . keeping recaptured slave, . housebreaking, . highway robbery, . theft at fire, . allowing seditious brawling in wine shop, . rape of betrothed maiden, . for ganger, constable, neglecting duty, . ,, ,, sending substitutes, . causing death of pregnant woman by assault, . for getting a slave branded unknown to owner, . for building so badly as to cause death of owner, . _see also_ burning, drowning, impalement. death of defendant, . debt, abatement for damage by storm, deluge, and drought, . not to be repaid from debtor's goods, without his consent, . hostages for, . to be well treated, . released after three years, . of man before marriage, not binding on wife, . of woman before marriage, not binding on husband, . of both after marriage, binding on both, . debtor's risk, . privileged to pay in kind, z. defamation, . deferred foreclosure, . degradation from office, . deification of river euphrates, . _delegatus non potest delegare_, , . deposit. _see_ storage, trust, warehouse, . not recoverable unless witnessed and sealed for, . from domestic inferior, illegal without witnessed contract, . desertion, by husband, of wife-- involuntary, . of city and wife, . of adoptive parents, . detention of fugitive slave punished, . disinheritance, for incest, . of son, . not without legal process and for good cause, . distraint for debt, , . unjustified, fine one-third mina of silver, each time, . death of person taken in, , . not allowed on warehoused goods, . of working ox fined, . district liable, for highway robbery, . for ransom of official, . diverted to, perhaps 'captured in,' winckler's tr. divorce, , . wife takes her bride-price, . or fixed sum, one mina of silver from gentleman, . or fixed sum, one-third mina from poor man, . doctor, privileges and responsibilities, - . fees for cures, , . causes death, - . paid by assailant, . domestic inferior. _see_ minor. dowry. _see_ bride-price. drowning, as penalty for-- selling drink too cheap, . adultery, . bad wife, . incest with daughter-in-law, . deserting husband's house in his enforced absence, being provided with proper maintenance, . dyke, . ear cut off as penalty, . endowment of office. _see_ benefice. equals, assault of, , , . evicted purchaser reimbursed, . tenant reimbursed, y. exchange, of benefice illegal, . exile, penalty for incest, . eye, torn out as penalty, . struck out in assault, . disease of, . cure of, fee for, ten shekels of silver, . loss of eye, assessed at five shekels of silver, . false judgement, penalty for, . claims for money or goods, , , . accusation of adultery, . farm. _see_ lease. fatal assault of gentleman by gentleman, . of gentleman by poor man, . favourite son, may be gifted by father, . in his lifetime, . by written deed, . other children no claim against, . takes equal share with them on father's death, . fees for curing wound, or disease of eye, by surgical operation-- gentleman pays ten shekels of silver, . poor man pays five shekels of silver, . slave pays two shekels of silver, . cure of broken limb or diseased bowel-- gentleman pays five shekels, . poor man pays three shekels, . slave pays two shekels, . cure of bad wound of ox or sheep, one-sixth of shekel, . for building house, two shekels _per sar_, . to boatman for navigating boat, two shekels, . warehousing goods, one-sixtieth value, . fines imposed for-- unlawful distraint, one-third mina, . seducing daughter-in-law before marriage, half mina, . aggravated assault, gentleman on gentleman, one mina, . aggravated assault, poor man on poor man, ten shekels, . fatal wound in quarrel, gentleman to gentleman, half mina, . fatal wound in quarrel, poor man to poor man, third mina, . assault on pregnant gentlewoman, causing miscarriage, ten shekels, . assault on pregnant poor woman, causing miscarriage, five shekels, . assault on pregnant slave, causing miscarriage, two shekels, . assault on pregnant poor woman, causing her death, half mina, . assault on pregnant slave, causing her death, third mina, . causing death of ox or sheep, by careless operation, quarter price, . distraint on working ox, one-third mina, . mutilation of hired ox, quarter price, . letting vicious ox gore a man to death, half mina, . stealing corn or plants, on metayer, sixty _gur_ of corn _per gan_, . letting oxen, taken on metayer, sixty _gur_ of corn _per gan_, . theft of watering machine, five shekels, . theft of water bucket, or plough, (harrow?), three shekels, . (_n.b_.--fines reckoned in silver, shekels to the mina.) fires, theft at, . floods, , , . forfeit of price paid in illegal purchase, , , . oxen and field, for neglect to cultivate, . forfeiture of claim-- by self-help, . by cruelty, . fortress of the king, may be 'defeat of the king,' winckler's tr. foster mother, duties and liabilities, . freedom, of hostage for debt, after three years, . to marry, as she chooses, on part of divorced wife, after bringing up children, . daughter-in-law, seduced before marriage, . widow, leaving settlement to children, . free-men sold into slavery, to pay fine, . fugitive, slave, , . poor man, . ganger, associated with constable, _q.v_. gentleman, one of three estates, contrasted with poor man and slave, , , , etc. gift. _see_ favourite son. goring by ox, , . gouging out eye, . penalty, , . governor, duties and liabilities, , ff. not to delegate duty, . nor accept substitute, . not to oppress subordinates, . granary, . guilty knowledge, by buyer of stolen goods, . hand of god, , , . hands cut off, penalty for-- striking father, . causing death by careless operation on free-man, . branding slave, without owner's knowledge, . harbouring, fugitive slave, . militiaman, or conscript, . herdsmen. _see_ shepherds. highway robbery, . _see_ robbery. hire, of land, house, garden. _see_ lease. scale fixed by king, , . wages fixed for-- boatman, _gur_ of corn _per annum_, . working ox, ,, ,, . cow in milk, (?) ,, ,, . reaper ,, ,, . thresher ,, ,, . herdman, or shepherd, ,, ,, . ox, for threshing, _ka_ of corn _per diem_, . ass, for threshing, ,, ,, . calf, for threshing, _ka_ ,, ,, . oxen, wagon, and driver, ,, ,, . wagon alone, ,, ,, . labourer, first five months, _se_ silver ,, . ,, last seven months, ,, ,, . artisan, ,, ,, . brickmaker, ,, ,, . tailor, ,, ,, . stonecutter, (?) ,, ,, . milkman, ,, ,, . carpenter, ,, ,, . a _sa_, ,, ,, . boat, ,, ,, . passenger boat, . ,, ,, . freight boat of _gur_, / shekel ,, . (_n.b_.--in corn measure, _gur_= _ka_, worth one shekel of silver, and one shekel= _se_. hostage for debt. _see_ mancipium. housebreaking, , . husband. _see_ re-marriage, wife, divorce, separation. hypothecation, of crop, regulated, . identification of lost property, . ignorance, plea of, , . illegal purchase, , . impalement, as penalty, . for procuring husband's death, . incest, - . of man and daughter, . of man and daughter-in-law, , . of man and mother, . of man and stepmother, . inheritance. _see_ share. innocent wife, separation from bad husband, . _see_ separation. interest on loan, etc., , , , x. abatement, . intimidation of witnesses, . jilting, . judge, duties and liabilities, , , , , , , . judgement, false. _see_ false. by default, . kidnapping, . king's standard, , . _see_ hire, scale. lancet, bronze, used in surgical operations, , , . landlord's risks, . lease, of house, y. field to cultivate, . ,, to reclaim, three years, . ,, to plant as garden, five years, . garden to till, . terms, not invalidated by neglect, . damages for not carrying _out_ terms, . _see_ metayer. levy. _see_ militia. _lex talionis_. _see_ retaliation. libel. _see_ slander. lion, referred to, , . local liability for-- compensation for highway robbery, , . redemption of captive official, . loss, by burglary or rebellion, . of hired animal, by lion, . ,, by neglect, . ,, by blows, . ,, by hand of god, . of flock or herd, by hand of god, . ,, by lion, . of crop, when shared by landlord, . of interest. _see_ abatement. lost property, recovery by owner, . sale by finder=theft, . lying, , . magistrate, over township, , . maid, female slave-- given by wife to husband, to bear children, . not to rival mistress, . if so, reckoned slave again, . not sold, if a mother, . may be sold, if not, . children, acknowledged by husband, in his lifetime, share equally with wife's children, . otherwise, free, but not heirs, . maintenance, of wife in absence, - . of divorced wife, . or concubine, . _malice prepense_ . malicious abuse of process, . mancipium, hostage to work off debt-- natural death, . done to death, . free after three years, if free born, . slave, can be sold, by creditor on removal, . but not if mother of debtor's children, . redeemed by debtor, . mansion, 'great house.' _see_ palace. manslaughter, of mancipium, . if slave, penalty one-third mina of silver, . by blow in quarrel, , . marks, on slave. _see_ branding. marriage portion, given by father to bride-- returned on divorce, . not to bad wife, . returned to injured wife, . ,, to invalid wife, who leaves husband, . property of wife's children, . father of bride cannot reclaim, if she has children of the marriage, . returned, if wife dies childless, . less bride-price, if not repaid to husband, . if wife re-marry, shared by children of both marriages, . taken by children of first marriage, if none of second, . free wife of slave, takes her marriage portion, if any on his death, for self and children, . master's right over married slave's property, , . pays for slave's cure, , . _see_ slave. merchant, trader, relations with agent, - . official (?), . as creditor, money-lender, , , , , , , x, z. bound to accept goods, for money or corn, z. pays fivefold for overcharging agent . likely to change residence, . metayer, system of lease, landlord finds seed, implements, working animals, etc. _see_ also lease, . militia, or conscript, for _corvee_-- fugitive from, . granted to governor, . minor, status of, . miscarriage, . _see_ assault, fine. money, not sealed for, cannot enter account, . _see_ hire, price, fines. mortgage. _see_ debt. mortgagor's power of sale, . option to refuse foreclosure, x. mother, has custody of children, . incest with, . mutilation, as penalty. _see_ branding, ear, eye, hands, breasts, tongue. of hired ox, . either punishment of offending member, or retaliation for mutilation. _see_ retaliation. neglect, to cultivate field leased, , . to reclaim field leased, . to set up dwelling, . to strengthen dyke, . to plant garden leased, - . to till garden, . to build house properly, . to cultivate on metayer, . to confine vicious ox, , . oath, in legal process. _see_ sworn deposition, . for purgation, , , , . as to loss, , , , , . as to deposit, . as to injury, . office, duty of official, . officials, _pa-pa_ and _nu-tur_-- duties and liabilities, , . _see_ governor, ganger, constable, reeve, bailiff, runner, palace, judge. ordeal, by water, nature of, . for witchcraft, . purgation of slander, . ox, working, not to be distrained on, . ,, hire, . furious, . vicious, . palace, equivalent to state, king, gentleman's residence-- property of, . ransom by, . place of judgement, . palace official, 'one who stands in the presence'-- child of, may be adopted without demur, . perjury, , . personal property of official pledged, . pin-money. _see_ settlement. pledge, of benefice, illegal, . personal property allowed, . _see_ debt. poor man, separate estate, contrasted with gentleman and slave-- theft from, . abduction of slave from, . liable to conscription or levy, . reduced charges for divorce, . owned slave, , , . his eye or limb valued at one mina of silver, . his tooth valued at one-third mina of silver, . assault by poor man, . assault by, . fee for cure of wound or eye, . fee for cure of limb or bowel, . pregnant woman. _see_ assault, fine. prescriptive right to benefice acquired by discharge of office, . presumption, . price of drink not to be less than corn, . except at harvest time, then five-sixths, . principal. _see_ merchant. procuration of desertion of slave from master, . produce rent, . of field, one-half or one-third crop, . of garden, two-thirds crop, . ransom, of captive official, . by serf, . by town, . by palace, . rape, of betrothed maiden, . rebellion, loss by, . receipt, sealed written document-- to be taken by agent for goods committed, . to be taken by depositor, , . receiving of stolen goods, . reclaiming lease, . recovery, of lost property, , , . of deposit, , . redemption of pledge or mancipium, . debtor must redeem a maid who has borne him children, . reeve. _see_ ganger. referees. _see_ witnesses. refusal to name owner, . of conjugal rights, . reimbursement to evicted purchaser, . re-marriage of divorced woman, . of widow, . her marriage portion shared equally by children of both marriages, . if no children of second marriage, those of first take all, . remission of penalty, . rents, usually share of produce, , . fixed by code for-- land leased to be reclaimed, three years free, fourth year ten _gur per gan_, ; cf. . land leased to plant as garden, four years free, fifth year half- produce, ; cf. lev. xix. . garden leased to till, two-thirds produce, . abatement, if crop destroyed, . no abatement if culpable negligence, . repatriation of slave, , . repudiation of adoptive parents-- by son of votary, or palace official, . _res perit domino_, . restitution, compensation, damages, reimbursement-- simple, , , . goods for goods, . ox or ass, for same, , , . slave for slave, , . of deposit, . threefold, for cheating principal, . fivefold, for goods lost or stolen by carrier, ; cf. . sixfold, for over-charging agent, . tenfold, for theft by poor man, . ,, for culpable loss by herdsman or shepherd, . twelvefold, for false sentence by judge, . thirtyfold, for theft by gentleman, . retaliation, eye for eye, . limb for limb, . tooth for tooth, . son for son, , . slave for slave, , . suitor to bear penalty he sought to bring, , . _see_ restitutions. return, of slave purchased-- permissible within one month, for disease, . or other undisclosed defect, . reward, for capturing fugitive slave, . risks, landlord's, , . lessor's, . warehouseman's, . tenant's, . robbery, , . runnel, . runner. _see_ constable. sacrilegious theft-- of first order, . of second order, . sale of, man and property, to pay fine, . wife or child, for debt, . crops to pay, according to scale, . scale damages. _see_ king's standard. scandal, . scourging, with cowhide whip, sixty strokes, . second marriage, , . _see_ re-marriage, widow. seduction, of betrothed daughter-in-law, . of slave, from service, . self-help, forbidden, . separation, of husband and wife-- grounds for, on part of husband-- gone out, deserted home, . belittled wife, . on part of wife-- set to desert home, . quarrelsome, . ruinous, . belittled husband, . settlement, or pin-money, estate, or goods settled on wife-- by husband, in lifetime, by written deed, . children not to dispute, . wife has freedom of testamentary devise, . among her children of that marriage, . wife may not leave to brothers, . widow enjoys for life, if she remains in husband's house, . widow bequeaths to children, . ,, resigns if she re-marries, . compare gift to favourite child. share, of father's property, on his death-- equally by all children, . divorced wife, as one child, . with reservation apart, of gift to favourite, . ,, ,, of wife's settlement, . ,, ,, bride-price for unmarried son, . ,, ,, portion for votary sister, . of mother's marriage portion, on her death, . all her children equally, . children of second wife share own mother's portion, . children of both mothers share equally in father's property, . children of maid, if acknowledged, share equally with children of wife, latter taking precedence, . shepherds, duties and liabilities of, - . slander, against votary or married woman, . of wife, . of suitor, . judiciary, against referees, . of title, . liability for, passively transmitted, . seditious, . slave, one of three estates, domestic inferior-- not free to contract except by deed and bond, . seduction from service, penal, . fugitive, harbouring, . ,, capturing, . ,, retaining, . ,, refuses to name owner, . ,, re-escape of captured, . subject to levy, . marries free woman, . children free, . woman marries master, bears sons, not to be sold, . cure of, paid for by master, , . his eye or limb, valued at half-price, . assault on free-man by slave, . gored by ox, . of poor man, . captured and repatriated, . freed, if native, . rebellious, repudiates master, . speculation in crops, futures, discouraged, , , x. spell, magical. _see_ witchcraft. stay of case, for production of witnesses, . stolen goods, guilty purchase of=theft, . storage. _see_ warehouse, deposit. strength of a man, crown of the head (?), genitalia-- penalty for wounding the, of-- superior, . equal, . poor man, . free-man by slave, . striking or wounding. _see_ assaults. of father by son, . sub-letting, not to be objected to, . subornation, of perjury, . summons to appear before judge, . _see_ calling to account. superior, assault of, . surgeon. _see_ doctor. sworn deposition, , , , , , , , . tablet, broken, annulment of contract, . wetted, to rewrite date, . temple, property protected, , . bound to ransom captive, . tenant's risks, . theft, first order, involving entry, . second order, in the open, . by keeping property found, . by selling property found, . aggravated at fire, . from deposit, . under metayer, . _see_ bailment, lost property, sacrilegious, stolen goods, treasonable, receiving. threatening witnesses, . threshing floor, . tongue cut out, . treasonable theft, first order, . second order, . trespass, to realty, . dolus, . culpa, . tributary, a beneficed person, paid tribute, - . benefice inalienable, . _see_ benefice. trust, deposit, regulated-- corn in granary, . any goods, . undertaking. _see_ lease. untitled possession, , . veterinary surgeon, duties and liabilities of, , . vexatious claim of property as lost, . _vivum vadium_, . votary, not to open or enter wine shop, . protected from slander, . as wife, . gives maid to husband, to bear children, . not to be rivalled by maid, . dowered as for marriage, . free to leave her portion, if allowed by father's deed, , . otherwise, brothers assume charge of her estate and maintain her, . or if they do not content her, she farms it out, . if father gives her no portion, entitled on his death to one child's share, . but must leave to brothers, . if dedicated by father, and not portioned, entitled to one-third share at his death, . must leave this to brethren, . if dedicated by father to marduk of babylon, and not portioned, entitled to one-third share at his death, . pays no taxes, . leaves property as she likes, . her child may be adopted, without her consent, . ,, if adopted, severely punished for repudiating adopted parents, . usually lived in convent, . cannot alienate or mortgage estate, . unless power granted by father's deed, . when brothers cannot interfere, . wages. _see_ hire. warden. _see_ constable. wards, children of re-married widow, by first marriage, . warehousing, - . fee for, one-sixtieth value, . liability for loss in warehouse, . waste, . land. _see_ reclaiming lease, , . weights, great, . widow, on husband's death-- stays in his house, . takes her portion and settlement, . may not alienate them from children, . if no settlement, takes portion, and one child's share, . children cannot turn her out without legal process, . if she wishes to leave and re-marry, resigns settlement to children, but takes portion, . on her death, children of both marriages divide her portion equally, . with young children, may marry, but she and husband are bound trustees for the children, . wife, of free-man, not to be slandered, . not legally married, without bonds, . adultery by, drowned, . falsely accused, . slandered, . of captive husband, - . bound to preserve fidelity if provided for, . otherwise, may re-marry, . but must rejoin husband, on return, . children, of second marriage, if any, stay with father, . deserted, . divorce of, who has borne children, . divorced, takes marriage portion, usufruct of field, garden, and property, only leaves house, has custody and education of children, then takes one child's share, and is free to re-marry, . ,, and if not a mother, takes marriage portion and bride-price, . ,, or in lieu of bride-price, fixed sum, , . may seek divorce, . bad, divorced without compensation, . ,, reduced to status of slave, . denies conjugal rights, . if bad, drowned, . if justified by husband's cruelty, separated, . good, stays at home, is not quarrelsome, economical, does not belittle her husband, has no vice, . may give maid to husband to bear children, . husband then may not take concubine, . maid may not rival, . childless, does not give maid, husband can take concubine, . concubine not to rival, . invalid, to be maintained, not divorced, . ,, husband can marry second wife, . ,, may leave husband, taking portion, . second wife only allowed, if first be invalid, or divorced, - , . can leave settlement to any child she prefers, . liability for husband's debts, . procuring death of husband, for love of another, impaled, . of official, no claim on benefice, . deserted, free to marry, . wine seller, duties and liabilities, - . not to sell drink cheaper than corn, . relaxation of this rule, . not to suffer brawling or seditious talk, . bound to hale brawlers to palace, . votary not to be, . wit, , . witchcraft, laws against, , . witnesses-- ( ) referees, elders of township, assessors of judge. ( ) knowing facts, recognising property. ( ) to document. penalty for threatening, death, . ,, bribing, to bear sentence, . necessary for legal purchase, , . time granted to produce, . to deposit, . knowing lost property, . working expenses, . wounds, given in quarrel, . grievous, cure by doctor, , , . to cattle, cure, . printed by morrison and gibb limited, edinburgh. file was produced from images generously made available by the posner memorial collection (http://posner.library.cmu.edu/posner/)) [transcriber's note: sir william blackstone's _commentaries on the laws of england_ was first published in - . it contains a number of archaic spellings (including "goaler" for "gaoler" and "it's" for "its") that have been preserved as they appear in the original. all such spellings have been verified using the oxford english dictionary. inconsistencies in spelling, punctuation, hyphenation, capitalization, and italicization have also been preserved. obvious printer errors have been preserved and marked with a [transcriber's note]. long s in the original has been modernized as modern s. the archaic convention of placing quotation marks at the beginning of each line of a quotation has also been modernized to quotation marks only at the beginning and end of the quotation.] commentaries on the laws of england. book the first. by william blackstone, esq. vinerian professor of law, and solicitor general to her majesty. oxford, printed at the clarendon press. m. dcc. lxv. to the queen's most excellent majesty, the following view of the laws and constitution of england, the improvement and protection of which have distinguished the reign of her majesty's royal consort, is, with all gratitude and humility, most respectfully inscribed by her dutiful and most obedient servant, william blackstone. preface. _the following sheets contain the substance of a course of lectures on the laws of england, which were read by the author in the university of oxford. his original plan took it's rise in the year : and, notwithstanding the novelty of such an attempt in this age and country, and the prejudices usually conceived against any innovations in the established mode of education, he had the satisfaction to find (and he acknowleges it with a mixture of pride and gratitude) that his endeavours were encouraged and patronized by those, both in the university and out of it, whose good opinion and esteem he was principally desirous to obtain._ _the death of mr viner in , and his ample benefaction to the university for promoting the study of the law, produced about two years afterwards a regular and public establishment of what the author had privately undertaken. the knowlege of our laws and constitution was adopted as a liberal science by general academical authority; competent endowments were decreed for the support of a lecturer, and the perpetual encouragement of students; and the compiler of the ensuing commentaries had the honour to be elected the first vinerian professor._ _in this situation he was led, both by duty and inclination, to investigate the elements of the law, and the grounds of our civil polity, with greater assiduity and attention than many have thought it necessary to do. and yet all, who of late years have attended the public administration of justice, must be sensible that a masterly acquaintance with the general spirit of laws and the principles of universal jurisprudence, combined with an accurate knowlege of our own municipal constitutions, their original, reason, and history, hath given a beauty and energy to many modern judicial decisions, with which our ancestors were wholly unacquainted. if, in the pursuit of these inquiries, the author hath been able to rectify any errors which either himself or others may have heretofore imbibed, his pains will be sufficiently answered: and, if in some points he is still mistaken, the candid and judicious reader will make due allowances for the difficulties of a search so new, so extensive, and so laborious._ _the labour indeed of these researches, and of a regular attention to his duty, for a series of so many years, he hath found inconsistent with his health, as well as his other avocations: and hath therefore desired the university's permission to retire from his office, after the conclusion of the annual course in which he is at present engaged. but the hints, which he had collected for the use of his pupils, having been thought by some of his more experienced friends not wholly unworthy of the public eye, it is therefore with the less reluctance that he now commits them to the press: though probably the little degree of reputation, which their author may have acquired by the candor of an audience (a test widely different from that of a deliberate perusal) would have been better consulted by a total suppression of his lectures;----had that been a matter intirely within his power._ _for the truth is, that the present publication is as much the effect of necessity, as it is of choice. the notes which were taken by his hearers, have by some of them (too partial in his favour) been thought worth revising and transcribing; and these transcripts have been frequently lent to others. hence copies have been multiplied, in their nature imperfect, if not erroneous; some of which have fallen into mercenary hands, and become the object of clandestine sale. having therefore so much reason to apprehend a surreptitious impression, he chose rather to submit his own errors to the world, than to seem answerable for those of other men. and, with this apology, he commits himself to the indulgence of the public._ errata. _page , line _: _for_ no _read_ an _page , (notes) col. ._ _after_ sid. . _add_ see stat. car. ii. c. . _page , line _: _after_ sit _add_ at _page , line _: _for_ predial _read_ rectorial contents. introduction. sect. i. _on the_ study _of the_ law. page . sect. ii. _of the_ nature _of_ laws _in general_. . sect. iii. _of the_ laws _of_ england. . sect. iv. _of the_ countries _subject to the_ laws _of_ england. . book i. _of the_ rights _of_ persons. chap. i. _of the absolute_ rights _of_ individuals. . chap. ii. _of the_ parliament. . chap. iii. _of the_ king, _and his_ title. . chap. iv. _of the_ king's _royal_ family. . chap. v. _of the_ councils _belonging to the_ king. . chap. vi. _of the_ king's duties. . chap. vii. _of the_ king's prerogative. . chap. viii. _of the_ king's revenue. . chap. ix. _of subordinate_ magistrates. . chap. x. _of the_ people, _whether_ aliens, denizens, _or_ natives. . chap. xi. _of the_ clergy. . chap. xii. _of the_ civil state. . chap. xiii. _of the_ military _and_ maritime states. . chap. xiv. _of_ master _and_ servant. . chap. xv. _of_ husband _and_ wife. . chap. xvi. _of_ parent _and_ child. . chap. xvii. _of_ guardian _and_ ward. . chap. xviii. _of_ corporations. . commentaries on the laws of england. introduction. section the first. on the study of the law.[a] [footnote a: read in oxford at the opening of the vinerian lectures; oct. .] mr vice-chancellor, and gentlemen of the university, the general expectation of so numerous and respectable an audience, the novelty, and (i may add) the importance of the duty required from this chair, must unavoidably be productive of great diffidence and apprehensions in him who has the honour to be placed in it. he must be sensible how much will depend upon his conduct in the infancy of a study, which is now first adopted by public academical authority; which has generally been reputed (however unjustly) of a dry and unfruitful nature; and of which the theoretical, elementary parts have hitherto received a very moderate share of cultivation. he cannot but reflect that, if either his plan of instruction be crude and injudicious, or the execution of it lame and superficial, it will cast a damp upon the farther progress of this most useful and most rational branch of learning; and may defeat for a time the public-spirited design of our wise and munificent benefactor. and this he must more especially dread, when he feels by experience how unequal his abilities are (unassisted by preceding examples) to complete, in the manner he could wish, so extensive and arduous a task; since he freely confesses, that his former more private attempts have fallen very short of his own ideas of perfection. and yet the candour he has already experienced, and this last transcendent mark of regard, his present nomination by the free and unanimous suffrage of a great and learned university, (an honour to be ever remembered with the deepest and most affectionate gratitude) these testimonies of your public judgment must entirely supersede his own, and forbid him to believe himself totally insufficient for the labour at least of this employment. one thing he will venture to hope for, and it certainly shall be his constant aim, by diligence and attention to atone for his other defects; esteeming, that the best return, which he can possibly make for your favourable opinion of his capacity, will be his unwearied endeavours in some little degree to deserve it. the science thus committed to his charge, to be cultivated, methodized, and explained in a course of academical lectures, is that of the laws and constitution of our own country: a species of knowlege, in which the gentlemen of england have been more remarkably deficient than those of all europe besides. in most of the nations on the continent, where the civil or imperial law under different modifications is closely interwoven with the municipal laws of the land, no gentleman, or at least no scholar, thinks his education is completed, till he has attended a course or two of lectures, both upon the institutes of justinian and the local constitutions of his native soil, under the very eminent professors that abound in their several universities. and in the northern parts of our own island, where also the municipal laws are frequently connected with the civil, it is difficult to meet with a person of liberal education, who is destitute of a competent knowlege in that science, which is to be the guardian of his natural rights and the rule of his civil conduct. nor have the imperial laws been totally neglected even in the english nation. a general acquaintance with their decisions has ever been deservedly considered as no small accomplishment of a gentleman; and a fashion has prevailed, especially of late, to transport the growing hopes of this island to foreign universities, in switzerland, germany, and holland; which, though infinitely inferior to our own in every other consideration, have been looked upon as better nurseries of the civil, or (which is nearly the same) of their own municipal law. in the mean time it has been the peculiar lot of our admirable system of laws, to be neglected, and even unknown, by all but one practical profession; though built upon the soundest foundations, and approved by the experience of ages. far be it from me to derogate from the study of the civil law, considered (apart from any binding authority) as a collection of written reason. no man is more thoroughly persuaded of the general excellence of it's rules, and the usual equity of it's decisions; nor is better convinced of it's use as well as ornament to the scholar, the divine, the statesman, and even the common lawyer. but we must not carry our veneration so far as to sacrifice our alfred and edward to the manes of theodosius and justinian: we must not prefer the edict of the praetor, or the rescript of the roman emperor, to our own immemorial customs, or the sanctions of an english parliament; unless we can also prefer the despotic monarchy of rome and byzantium, for whose meridians the former were calculated, to the free constitution of britain, which the latter are adapted to perpetuate. without detracting therefore from the real merit which abounds in the imperial law, i hope i may have leave to assert, that if an englishman must be ignorant of either the one or the other, he had better be a stranger to the roman than the english institutions. for i think it an undeniable position, that a competent knowlege of the laws of that society, in which we live, is the proper accomplishment of every gentleman and scholar; an highly useful, i had almost said essential, part of liberal and polite education. and in this i am warranted by the example of antient rome; where, as cicero informs us[a], the very boys were obliged to learn the twelve tables by heart, as a _carmen necessarium_ or indispensable lesson, to imprint on their tender minds an early knowlege of the laws and constitutions of their country. [footnote a: _de legg._ . .] but as the long and universal neglect of this study, with us in england, seems in some degree to call in question the truth of this evident position, it shall therefore be the business of this introductory discourse, in the first place to demonstrate the utility of some general acquaintance with the municipal law of the land, by pointing out its particular uses in all considerable situations of life. some conjectures will then be offered with regard to the causes of neglecting this useful study: to which will be subjoined a few reflexions on the peculiar propriety of reviving it in our own universities. and, first, to demonstrate the utility of some acquaintance with the laws of the land, let us only reflect a moment on the singular frame and polity of that land, which is governed by this system of laws. a land, perhaps the only one in the universe, in which political or civil liberty is the very end and scope of the constitution[b]. this liberty, rightly understood, consists in the power of doing whatever the laws permit[c]; which is only to be effected by a general conformity of all orders and degrees to those equitable rules of action, by which the meanest individual is protected from the insults and oppression of the greatest. as therefore every subject is interested in the preservation of the laws, it is incumbent upon every man to be acquainted with those at least, with which he is immediately concerned; lest he incur the censure, as well as inconvenience, of living in society without knowing the obligations which it lays him under. and thus much may suffice for persons of inferior condition, who have neither time nor capacity to enlarge their views beyond that contracted sphere in which they are appointed to move. but those, on whom nature and fortune have bestowed more abilities and greater leisure, cannot be so easily excused. these advantages are given them, not for the benefit of themselves only, but also of the public: and yet they cannot, in any scene of life, discharge properly their duty either to the public or themselves, without some degree of knowlege in the laws. to evince this the more clearly, it may not be amiss to descend to a few particulars. [footnote b: montesq. _esp. l._ _l._ . _c._ .] [footnote c: _facultas ejus, quod cuique facere libet, nisi quid vi, aut jure prohibetur._ _inst._ . . .] let us therefore begin with our gentlemen of independent estates and fortune, the most useful as well as considerable body of men in the nation; whom even to suppose ignorant in this branch of learning is treated by mr locke[d] as a strange absurdity. it is their landed property, with it's long and voluminous train of descents and conveyances, settlements, entails, and incumbrances, that forms the most intricate and most extensive object of legal knowlege. the thorough comprehension of these, in all their minute distinctions, is perhaps too laborious a task for any but a lawyer by profession: yet still the understanding of a few leading principles, relating to estates and conveyancing, may form some check and guard upon a gentleman's inferior agents, and preserve him at least from very gross and notorious imposition. [footnote d: education. §. .] again, the policy of all laws has made some forms necessary in the wording of last wills and testaments, and more with regard to their attestation. an ignorance in these must always be of dangerous consequence, to such as by choice or necessity compile their own testaments without any technical assistance. those who have attended the courts of justice are the best witnesses of the confusion and distresses that are hereby occasioned in families; and of the difficulties that arise in discerning the true meaning of the testator, or sometimes in discovering any meaning at all: so that in the end his estate may often be vested quite contrary to these his enigmatical intentions, because perhaps he has omitted one or two formal words, which are necessary to ascertain the sense with indisputable legal precision, or has executed his will in the presence of fewer witnesses than the law requires. but to proceed from private concerns to those of a more public consideration. all gentlemen of fortune are, in consequence of their property, liable to be called upon to establish the rights, to estimate the injuries, to weigh the accusations, and sometimes to dispose of the lives of their fellow-subjects, by serving upon juries. in this situation they are frequently to decide, and that upon their oaths, questions of nice importance, in the solution of which some legal skill is requisite; especially where the law and the fact, as it often happens, are intimately blended together. and the general incapacity, even of our best juries, to do this with any tolerable propriety has greatly debased their authority; and has unavoidably thrown more power into the hands of the judges, to direct, control, and even reverse their verdicts, than perhaps the constitution intended. but it is not as a juror only that the english gentleman is called upon to determine questions of right, and distribute justice to his fellow-subjects: it is principally with this order of men that the commission of the peace is filled. and here a very ample field is opened for a gentleman to exert his talents, by maintaining good order in his neighbourhood; by punishing the dissolute and idle; by protecting the peaceable and industrious; and, above all, by healing petty differences and preventing vexatious prosecutions. but, in order to attain these desirable ends, it is necessary that the magistrate should understand his business; and have not only the will, but the power also, (under which must be included the knowlege) of administring legal and effectual justice. else, when he has mistaken his authority, through passion, through ignorance, or absurdity, he will be the object of contempt from his inferiors, and of censure from those to whom he is accountable for his conduct. yet farther; most gentlemen of considerable property, at some period or other in their lives, are ambitious of representing their country in parliament: and those, who are ambitious of receiving so high a trust, would also do well to remember it's nature and importance. they are not thus honourably distinguished from the rest of their fellow-subjects, merely that they may privilege their persons, their estates, or their domestics; that they may list under party banners; may grant or with-hold supplies; may vote with or vote against a popular or unpopular administration; but upon considerations far more interesting and important. they are the guardians of the english constitution; the makers, repealers, and interpreters of the english laws; delegated to watch, to check, and to avert every dangerous innovation, to propose, to adopt, and to cherish any solid and well-weighed improvement; bound by every tie of nature, of honour, and of religion, to transmit that constitution and those laws to their posterity, amended if possible, at least without any derogation. and how unbecoming must it appear in a member of the legislature to vote for a new law, who is utterly ignorant of the old! what kind of interpretation can he be enabled to give, who is a stranger to the text upon which he comments! indeed it is really amazing, that there should be no other state of life, no other occupation, art, or science, in which some method of instruction is not looked upon as requisite, except only the science of legislation, the noblest and most difficult of any. apprenticeships are held necessary to almost every art, commercial or mechanical: a long course of reading and study must form the divine, the physician, and the practical professor of the laws: but every man of superior fortune thinks himself _born_ a legislator. yet tully was of a different opinion: "it is necessary, says he[e], for a senator to be thoroughly acquainted with the constitution; and this, he declares, is a knowlege of the most extensive nature; a matter of science, of diligence, of reflexion; without which no senator can possibly be fit for his office." [footnote e: _de legg._ . . _est senatori necessarium nosse rempublicam; idque late patet:--genus hoc omne scientiae, diligentiae, memoriae est; sine quo paratus esse senator nullo pacto potest._] the mischiefs that have arisen to the public from inconsiderate alterations in our laws, are too obvious to be called in question; and how far they have been owing to the defective education of our senators, is a point well worthy the public attention. the common law of england has fared like other venerable edifices of antiquity, which rash and unexperienced workmen have ventured to new-dress and refine, with all the rage of modern improvement. hence frequently it's symmetry has been destroyed, it's proportions distorted, and it's majestic simplicity exchanged for specious embellishments and fantastic novelties. for, to say the truth, almost all the perplexed questions, almost all the niceties, intricacies, and delays (which have sometimes disgraced the english, as well as other, courts of justice) owe their original not to the common law itself, but to innovations that have been made in it by acts of parliament; "overladen (as sir edward coke expresses it[f]) with provisoes and additions, and many times on a sudden penned or corrected by men of none or very little judgment in law." this great and well-experienced judge declares, that in all his time he never knew two questions made upon rights merely depending upon the common law; and warmly laments the confusion introduced by ill-judging and unlearned legislators. "but if, he subjoins, acts of parliament were after the old fashion penned, by such only as perfectly knew what the common law was before the making of any act of parliament concerning that matter, as also how far forth former statutes had provided remedy for former mischiefs, and defects discovered by experience; then should very few questions in law arise, and the learned should not so often and so much perplex their heads to make atonement and peace, by construction of law, between insensible and disagreeing words, sentences, and provisoes, as they now do." and if this inconvenience was so heavily felt in the reign of queen elizabeth, you may judge how the evil is increased in later times, when the statute book is swelled to ten times a larger bulk; unless it should be found, that the penners of our modern statutes have proportionably better informed themselves in the knowlege of the common law. [footnote f: rep. pref.] what is said of our gentlemen in general, and the propriety of their application to the study of the laws of their country, will hold equally strong or still stronger with regard to the nobility of this realm, except only in the article of serving upon juries. but, instead of this, they have several peculiar provinces of far greater consequence and concern; being not only by birth hereditary counsellors of the crown, and judges upon their honour of the lives of their brother-peers, but also arbiters of the property of all their fellow-subjects, and that in the last resort. in this their judicial capacity they are bound to decide the nicest and most critical points of the law; to examine and correct such errors as have escaped the most experienced sages of the profession, the lord keeper and the judges of the courts at westminster. their sentence is final, decisive, irrevocable: no appeal, no correction, not even a review can be had: and to their determination, whatever it be, the inferior courts of justice must conform; otherwise the rule of property would no longer be uniform and steady. should a judge in the most subordinate jurisdiction be deficient in the knowlege of the law, it would reflect infinite contempt upon himself and disgrace upon those who employ him. and yet the consequence of his ignorance is comparatively very trifling and small: his judgment may be examined, and his errors rectified, by other courts. but how much more serious and affecting is the case of a superior judge, if without any skill in the laws he will boldly venture to decide a question, upon which the welfare and subsistence of whole families may depend! where the chance of his judging right, or wrong, is barely equal; and where, if he chances to judge wrong, he does an injury of the most alarming nature, an injury without possibility of redress! yet, vast as this trust is, it can no where be so properly reposed as in the noble hands where our excellent constitution has placed it: and therefore placed it, because, from the independence of their fortune and the dignity of their station, they are presumed to employ that leisure which is the consequence of both, in attaining a more extensive knowlege of the laws than persons of inferior rank: and because the founders of our polity relied upon that delicacy of sentiment, so peculiar to noble birth; which, as on the one hand it will prevent either interest or affection from interfering in questions of right, so on the other it will bind a peer in honour, an obligation which the law esteems equal to another's oath, to be master of those points upon which it is his birthright to decide. the roman pandects will furnish us with a piece of history not unapplicable to our present purpose. servius sulpicius, a gentleman of the patrician order, and a celebrated orator, had occasion to take the opinion of quintus mutius scaevola, the oracle of the roman law; but for want of some knowlege in that science, could not so much as understand even the technical terms, which his friend was obliged to make use of. upon which mutius scaevola could not forbear to upbraid him with this memorable reproof[g], "that it was a shame for a patrician, a nobleman, and an orator of causes, to be ignorant of that law in which he was so peculiarly concerned." this reproach made so deep an impression on sulpicius, that he immediately applied himself to the study of the law; wherein he arrived to that proficiency, that he left behind him about a hundred and fourscore volumes of his own compiling upon the subject; and became, in the opinion of cicero[h], a much more complete lawyer than even mutius scaevola himself. [footnote g: _ff._ . . . §. . _turpe esse patricio, & nobili, & causas oranti, jus in quo versaretur ignorare._] [footnote h: _brut._ .] i would not be thought to recommend to our english nobility and gentry to become as great lawyers as sulpicius; though he, together with this character, sustained likewise that of an excellent orator, a firm patriot, and a wise indefatigable senator; but the inference which arises from the story is this, that ignorance of the laws of the land hath ever been esteemed dishonourable, in those who are entrusted by their country to maintain, to administer, and to amend them. but surely there is little occasion to enforce this argument any farther to persons of rank and distinction, if we of this place may be allowed to form a general judgment from those who are under our inspection: happy, that while we lay down the rule, we can also produce the example. you will therefore permit your professor to indulge both a public and private satisfaction, by bearing this open testimony; that in the infancy of these studies among us, they were favoured with the most diligent attendance, and pursued with the most unwearied application, by those of the noblest birth and most ample patrimony: some of whom are still the ornaments of this seat of learning; and others at a greater distance continue doing honour to it's institutions, by comparing our polity and laws with those of other kingdoms abroad, or exerting their senatorial abilities in the councils of the nation at home. nor will some degree of legal knowlege be found in the least superfluous to persons of inferior rank; especially those of the learned professions. the clergy in particular, besides the common obligations they are under in proportion to their rank and fortune, have also abundant reason, considered merely as clergymen, to be acquainted with many branches of the law, which are almost peculiar and appropriated to themselves alone. such are the laws relating to advowsons, institutions, and inductions; to simony, and simoniacal contracts; to uniformity, residence, and pluralities; to tithes and other ecclesiastical dues; to marriages (more especially of late) and to a variety of other subjects, which are consigned to the care of their order by the provisions of particular statutes. to understand these aright, to discern what is warranted or enjoined, and what is forbidden by law, demands a sort of legal apprehension; which is no otherwise to be acquired than by use and a familiar acquaintance with legal writers. for the gentlemen of the faculty of physic, i must frankly own that i see no special reason, why they in particular should apply themselves to the study of the law; unless in common with other gentlemen, and to complete the character of general and extensive knowlege; a character which their profession, beyond others, has remarkably deserved. they will give me leave however to suggest, and that not ludicrously, that it might frequently be of use to families upon sudden emergencies, if the physician were acquainted with the doctrine of last wills and testaments, at least so far as relates to the formal part of their execution. but those gentlemen who intend to profess the civil and ecclesiastical laws in the spiritual and maritime courts of this kingdom, are of all men (next to common lawyers) the most indispensably obliged to apply themselves seriously to the study of our municipal laws. for the civil and canon laws, considered with respect to any intrinsic obligation, have no force or authority in this kingdom; they are no more binding in england than our laws are binding at rome. but as far as these foreign laws, on account of some peculiar propriety, have in some particular cases, and in some particular courts, been introduced and allowed by our laws, so far they oblige, and no farther; their authority being wholly founded upon that permission and adoption. in which we are not singular in our notions; for even in holland, where the imperial law is much cultivated and it's decisions pretty generally followed, we are informed by van leeuwen[i], that, "it receives it's force from custom and the consent of the people, either tacitly or expressly given: for otherwise, he adds, we should no more be bound by this law, than by that of the almains, the franks, the saxons, the goths, the vandals, and other of the antient nations." wherefore, in all points in which the different systems depart from each other, the law of the land takes place of the law of rome, whether antient or modern, imperial or pontificial. and in those of our english courts wherein a reception has been allowed to the civil and canon laws, if either they exceed the bounds of that reception, by extending themselves to other matters, than are permitted to them; or if such courts proceed according to the decisions of those laws, in cases wherein it is controlled by the law of the land, the common law in either instance both may, and frequently does, prohibit and annul their proceedings[k]: and it will not be a sufficient excuse for them to tell the king's courts at westminster, that their practice is warranted by the laws of justinian or gregory, or is conformable to the decrees of the rota or imperial chamber. for which reason it becomes highly necessary for every civilian and canonist that would act with safety as a judge, or with prudence and reputation as an advocate, to know in what cases and how far the english laws have given sanction to the roman; in what points the latter are rejected; and where they are both so intermixed and blended together, as to form certain supplemental parts of the common law of england, distinguished by the titles of the king's maritime, the king's military, and the king's ecclesiastical law. the propriety of which enquiry the university of oxford has for more than a century so thoroughly seen, that in her statutes[l] she appoints, that one of the three questions to be annually discussed at the act by the jurist-inceptors shall relate to the common law; subjoining this reason, "_quia juris civilis studiosos decet haud imperitos esse juris municipalis, & differentias exteri patriique juris notas habere_." and the statutes[m] of the university of cambridge speak expressly to the same effect. [footnote i: _dedicatio corporis juris civilis._ _edit._ .] [footnote k: hale. hist. c.l. c. . selden _in fletam_. rep. caudrey's case. inst. .] [footnote l: _tit. vii. sect._ . §. .] [footnote m: _doctor legum mox a doctoratu dabit operam legibus angliae, ut non sit imperitus earum legum quas habet sua patria, et differentias exteri patriique juris noscat._ _stat._ eliz. _r._ _c._ . cowel. _institut. in proëmio._] from the general use and necessity of some acquaintance with the common law, the inference were extremely easy, with regard to the propriety of the present institution, in a place to which gentlemen of all ranks and degrees resort, as the fountain of all useful knowlege. but how it has come to pass that a design of this sort has never before taken place in the university, and the reason why the study of our laws has in general fallen into disuse, i shall previously proceed to enquire. sir john fortescue, in his panegyric on the laws of england, (which was written in the reign of henry the sixth) puts[n] a very obvious question in the mouth of the young prince, whom he is exhorting to apply himself to that branch of learning; "why the laws of england, being so good, so fruitful, and so commodious, are not taught in the universities, as the civil and canon laws are?" in answer to which he gives[o] what seems, with due deference be it spoken, a very jejune and unsatisfactory reason; being in short, that "as the proceedings at common law were in his time carried on in three different tongues, the english, the latin, and the french, that science must be necessarily taught in those three several languages; but that in the universities all sciences were taught in the latin tongue only; and therefore he concludes, that they could not be conveniently taught or studied in our universities." but without attempting to examine seriously the validity of this reason, (the very shadow of which by the wisdom of your late constitutions is entirely taken away) we perhaps may find out a better, or at least a more plausible account, why the study of the municipal laws has been banished from these seats of science, than what the learned chancellor thought it prudent to give to his royal pupil. [footnote n: _c._ .] [footnote o: _c._ .] that antient collection of unwritten maxims and customs, which is called the common law, however compounded or from whatever fountains derived, had subsisted immemorially in this kingdom; and, though somewhat altered and impaired by the violence of the times, had in great measure weathered the rude shock of the norman conquest. this had endeared it to the people in general, as well because it's decisions were universally known, as because it was found to be excellently adapted to the genius of the english nation. in the knowlege of this law consisted great part of the learning of those dark ages; it was then taught, says mr selden[p], in the monasteries, _in the universities_, and in the families of the principal nobility. the clergy in particular, as they then engrossed almost every other branch of learning, so (like their predecessors the british druids[q]) they were peculiarly remarkable for their proficiency in the study of the law. _nullus clericus nisi causidicus_, is the character given of them soon after the conquest by william of malmsbury[r]. the judges therefore were usually created out of the sacred order[s], as was likewise the case among the normans[t]; and all the inferior offices were supplied by the lower clergy, which has occasioned their successors to be denominated _clerks_ to this day. [footnote p: _in fletam._ . .] [footnote q: caesar _de bello gal._ . .] [footnote r: _de gest. reg._ _l._ .] [footnote s: dugdale _orig. jurid._ _c._ .] [footnote t: _les juges sont sages personnes & autentiques,--sicome les archevesques, evesques, les chanoines les eglises cathedraulx, & les autres personnes qui ont dignitez in saincte eglise; les abbez, les prieurs conventaulx, & les gouverneurs des eglises, &c._ _grand coustumier_, _ch._ .] but the common law of england, being not committed to writing, but only handed down by tradition, use, and experience, was not so heartily relished by the foreign clergy; who came over hither in shoals during the reign of the conqueror and his two sons, and were utter strangers to our constitution as well as our language. and an accident, which soon after happened, had nearly completed it's ruin. a copy of justinian's pandects, being newly[u] discovered at amalfi, soon brought the civil law into vogue all over the west of europe, where before it was quite laid aside[w] and in a manner forgotten; though some traces of it's authority remained in italy[x] and the eastern provinces of the empire[y]. this now became in a particular manner the favourite of the popish clergy, who borrowed the method and many of the maxims of their canon law from this original. the study of it was introduced into several universities abroad, particularly that of bologna; where exercises were performed, lectures read, and degrees conferred in this faculty, as in other branches of science: and many nations on the continent, just then beginning to recover from the convulsions consequent upon the overthrow of the roman empire, and settling by degrees into peaceable forms of government, adopted the civil law, (being the best written system then extant) as the basis of their several constitutions; blending and interweaving it among their own feodal customs, in some places with a more extensive, in others a more confined authority[z]. [footnote u: _circ. a.d._ .] [footnote w: _ll. wisigoth._ . . .] [footnote x: _capitular. hludov. pii._ . .] [footnote y: selden _in fletam._ . .] [footnote z: domat's treatise of laws. c. . §. . _epistol. innocent. iv. in m. paris. ad a.d._ .] nor was it long before the prevailing mode of the times reached england. for theobald, a norman abbot, being elected to the see of canterbury[a], and extremely addicted to this new study, brought over with him in his retinue many learned proficients therein; and among the rest roger sirnamed vacarius, whom he placed in the university of oxford[b], to teach it to the people of this country. but it did not meet with the same easy reception in england, where a mild and rational system of laws had been long established, as it did upon the continent; and, though the monkish clergy (devoted to the will of a foreign primate) received it with eagerness and zeal, yet the laity who were more interested to preserve the old constitution, and had already severely felt the effect of many norman innovations, continued wedded to the use of the common law. king stephen immediately published a proclamation[c], forbidding the study of the laws, then newly imported from italy; which was treated by the monks[d] as a piece of impiety, and, though it might prevent the introduction of the civil law process into our courts of justice, yet did not hinder the clergy from reading and teaching it in their own schools and monasteries. [footnote a: _a.d._ .] [footnote b: gervas. dorobern. _act. pontif. cantuar. col._ .] [footnote c: rog. bacon. _citat. per_ selden. _in fletam._ . . _in fortesc._ _c._ . & rep. pref.] [footnote d: joan. sarisburiens. _polycrat._ . .] from this time the nation seems to have been divided into two parties; the bishops and clergy, many of them foreigners, who applied themselves wholly to the study of the civil and canon laws, which now came to be inseparably interwoven with each other; and the nobility and laity, who adhered with equal pertinacity to the old common law; both of them reciprocally jealous of what they were unacquainted with, and neither of them perhaps allowing the opposite system that real merit which is abundantly to be found in each. this appears on the one hand from the spleen with which the monastic writers[e] speak of our municipal laws upon all occasions; and, on the other, from the firm temper which the nobility shewed at the famous parliament of merton; when the prelates endeavoured to procure an act, to declare all bastards legitimate in case the parents intermarried at any time afterwards; alleging this only reason, because holy church (that is, the canon law) declared such children legitimate: but "all the earls and barons (says the parliament roll[f]) with one voice answered, that they would not change the laws of england, which had hitherto been used and approved." and we find the same jealousy prevailing above a century afterwards[g], when the nobility declared with a kind of prophetic spirit, "that the realm of england hath never been unto this hour, neither by the consent of our lord the king and the lords of parliament shall it ever be, ruled or governed by the civil law[h]." and of this temper between the clergy and laity many more instances might be given. [footnote e: _idem, ibid._ . . polydor. vergil. _hist._ _l._ .] [footnote f: _stat. merton._ _hen. iii._ _c._ . _et omnes comites & barones una voce responderunt, quod nolunt leges angliae mutare, quae hucusque usitatae sunt & approbatae._] [footnote g: ric. ii.] [footnote h: selden. _jan. anglor._ _l._ . §. . _in fortesc._ _c._ .] while things were in this situation, the clergy, finding it impossible to root out the municipal law, began to withdraw themselves by degrees from the temporal courts; and to that end, very early in the reign of king henry the third, episcopal constitutions were published[i], forbidding all ecclesiastics to appear as advocates _in foro saeculari_; nor did they long continue to act as judges there, nor caring to take the oath of office which was then found necessary to be administred, that they should in all things determine according to the law and custom of this realm[k]; though they still kept possession of the high office of chancellor, an office then of little juridical power; and afterwards, as it's business increased by degrees, they modelled the process of the court at their own discretion. [footnote i: spelman. _concil. a.d._ . wilkins, _vol._ . _p._ , .] [footnote k: selden. _in fletam._ . .] but wherever they retired, and wherever their authority extended, they carried with them the same zeal to introduce the rules of the civil, in exclusion of the municipal law. this appears in a particular manner from the spiritual courts of all denominations, from the chancellor's courts in both our universities, and from the high court of chancery before-mentioned; in all of which the proceedings are to this day in a course much conformed to the civil law: for which no tolerable reason can be assigned, unless that these courts were all under the immediate direction of the popish ecclesiastics, among whom it was a point of religion to exclude the municipal law; pope innocent the fourth having[l] forbidden the very reading of it by the clergy, because it's decisions were not founded on the imperial constitutions, but merely on the customs of the laity. and if it be considered, that our universities began about that period to receive their present form of scholastic discipline; that they were then, and continued to be till the time of the reformation, entirely under the influence of the popish clergy; (sir john mason the first protestant, being also the first lay, chancellor of oxford) this will lead us to perceive the reason, why the study of the roman laws was in those days of bigotry[m] pursued with such alacrity in these seats of learning; and why the common law was entirely despised, and esteemed little better than heretical. [footnote l: m. paris _ad a.d._ .] [footnote m: there cannot be a stronger instance of the absurd and superstitious veneration that was paid to these laws, than that the most learned writers of the times thought they could not form a perfect character, even of the blessed virgin, without making her a civilian and a canonist. which albertus magnus, the renowned dominican doctor of the thirteenth century, thus proves in his _summa de laudibus christiferae virginis (divinum magis quam humanum opus)_ _qu._ . §. . "_item quod jura civilia, & leges, & decreta scivit in summo, probatur hoc modo: sapientia advocati manifestatur in tribus; unum, quod obtineat omnia contra judicem justum & sapientem; secundo, quod contra adversarium astutum & sagacem; tertio, quod in causa desperata: sed beatissima virgo, contra judicem sapientissimum, dominum; contra adversarium callidissimum, dyabolum; in causa nostra desperata; sententiam optatam obtinuit._" to which an eminent franciscan, two centuries afterwards, bernardinus de busti (_mariale_, _part._ . _serm._ .) very gravely subjoins this note. "_nec videtur incongruum mulieres habere peritiam juris. legitur enim de uxore joannis andreae glossatoris, quod tantam peritiam in utroque jure habuit, ut publice in scholis legere ausa sit._"] and, since the reformation, many causes have conspired to prevent it's becoming a part of academical education. as, first, long usage and established custom; which, as in every thing else, so especially in the forms of scholastic exercise, have justly great weight and authority. secondly, the real intrinsic merit of the civil law, considered upon the footing of reason and not of obligation, which was well known to the instructors of our youth; and their total ignorance of the merit of the common law, though it's equal at least, and perhaps an improvement on the other. but the principal reason of all, that has hindered the introduction of this branch of learning, is, that the study of the common law, being banished from hence in the times of popery, has fallen into a quite different chanel, and has hitherto been wholly cultivated in another place. but as this long usage and established custom, of ignorance in the laws of the land, begin now to be thought unreasonable; and as by this means the merit of those laws will probably be more generally known; we may hope that the method of studying them will soon revert to it's antient course, and the foundations at least of that science will be laid in the two universities; without being exclusively confined to the chanel which it fell into at the times i have been just describing. for, being then entirely abandoned by the clergy, a few stragglers excepted, the study and practice of it devolved of course into the hands of laymen; who entertained upon their parts a most hearty aversion to the civil law[n], and made no scruple to profess their contempt, nay even their ignorance[o] of it, in the most public manner. but still, as the ballance of learning was greatly on the side of the clergy, and as the common law was no longer _taught_, as formerly, in any part of the kingdom, it must have been subjected to many inconveniences, and perhaps would have been gradually lost and overrun by the civil, (a suspicion well justified from the frequent transcripts of justinian to be met with in bracton and fleta) had it not been for a peculiar incident, which happened at a very critical time, and contributed greatly to it's support. [footnote n: fortesc. _de laud. ll._ _c._ .] [footnote o: this remarkably appeared in the case of the abbot of torun, _m._ _e._ . . who had caused a certain prior to be summoned to answer at avignon for erecting an oratory _contra inhibitionem novi operis_; by which words mr selden, (_in flet._ . .) very justly understands to be meant the title _de novi operis nuntiatione_ both in the civil and canon laws, (_ff._ . . _c._ . . and _decretal._ not _extrav._ . .) whereby the erection of any new buildings in prejudice of more antient ones was prohibited. but skipwith the king's serjeant, and afterwards chief baron of the exchequer, declares them to be flat nonsense; "_in ceux parolx_, contra inhibitionem novi operis, _ny ad pas entendment_:" and justice schardelow mends the matter but little by informing him, that they signify a restitution _in their law_; for which reason he very sagely resolves to pay no sort of regard to them. "_ceo n'est que un restitution en lour ley, pur que a ceo n'avomus regard, &c._"] the incident i mean was the fixing the court of common pleas, the grand tribunal for disputes of property, to be held in one certain spot; that the seat of ordinary justice might be permanent and notorious to all the nation. formerly that, in conjunction with all the other superior courts, was held before the king's capital justiciary of england, in the _aula regis_, or such of his palaces wherein his royal person resided; and removed with his houshold from one end of the kingdom to the other. this was found to occasion great inconvenience to the suitors; to remedy which it was made an article of the great charter of liberties, both that of king john and king henry the third[p], that "common pleas should no longer follow the king's court, but be held in some certain place:" in consequence of which they have ever since been held (a few necessary removals in times of the plague excepted) in the palace of westminster only. this brought together the professors of the municipal law, who before were dispersed about the kingdom, and formed them into an aggregate body; whereby a society was established of persons, who (as spelman[q] observes) addicting themselves wholly to the study of the laws of the land, and no longer considering it as a mere subordinate science for the amusement of leisure hours, soon raised those laws to that pitch of perfection, which they suddenly attained under the auspices of our english justinian, king edward the first. [footnote p: _c._ .] [footnote q: _glossar._ .] in consequence of this lucky assemblage, they naturally fell into a kind of collegiate order, and, being excluded from oxford and cambridge, found it necessary to establish a new university of their own. this they did by purchasing at various times certain houses (now called the inns of court and of chancery) between the city of westminster, the place of holding the king's courts, and the city of london; for advantage of ready access to the one, and plenty of provisions in the other[r]. here exercises were performed, lectures read, and degrees were at length conferred in the common law, as at other universities in the canon and civil. the degrees were those of barristers (first stiled apprentices[s] from _apprendre_, to learn) who answered to our bachelors; as the state and degree of a serjeant[t], _servientis ad legem_, did to that of doctor. [footnote r: fortesc. _c._ .] [footnote s: apprentices or barristers seem to have been first appointed by an ordinance of king edward the first in parliament, in the th year of his reign. (spelm. _gloss._ . dugdale. _orig. jurid._ .)] [footnote t: the first mention i have met with in our lawbooks of serjeants or countors, is in the statute of westm. . edw. i. c. . and in horn's mirror, _c._ . §. . _c._ . §. . _c._ . §. . in the same reign. but m. paris in his life of john ii, abbot of st. alban's, which he wrote in , hen. iii. speaks of advocates at the common law, or countors (_quos banci narratores vulgariter appellamus_) as of an order of men well known. and we have an example of the antiquity of the coif in the same author's history of england, _a.d._ . in the case of one william de bussy; who, being called to account for his great knavery and malpractices, claimed the benefit of his orders or clergy, which till then remained an entire secret; and to that end _voluit ligamenta coifae suae solvere, ut palam monstraret se tonsuram habere clericalem; sed non est permissus.----satelles vero eum arripiens, non per coifae ligamina sed per guttur eum apprehendens, traxit ad carcerem_. and hence sir h. spelman conjectures, (_glossar._ .) that coifs were introduced to hide the tonsure of such renegade clerks, as were still tempted to remain in the secular courts in the quality of advocates or judges, notwithstanding their prohibition by canon.] the crown seems to have soon taken under it's protection this infant seminary of common law; and, the more effectually to foster and cherish it, king henry the third in the nineteenth year of his reign issued out an order directed to the mayor and sheriffs of london, commanding that no regent of any law schools _within_ that city should for the future teach law therein[u]. the word, law, or _leges_, being a general term, may create some doubt at this distance of time whether the teaching of the civil law, or the common, or both, is hereby restrained. but in either case it tends to the same end. if the civil law only is prohibited, (which is mr selden's[w] opinion) it is then a retaliation upon the clergy, who had excluded the common law from _their_ seats of learning. if the municipal law be also included in the restriction, (as sir edward coke[x] understands it, and which the words seem to import) then the intention is evidently this; by preventing private teachers within the walls of the city, to collect all the common lawyers into the one public university, which was newly instituted in the suburbs. [footnote u: _ne aliquis scholas regens de legibus in eadem civitate de caetero ibidem leges doceat._] [footnote w: _in flet._ . .] [footnote x: inst. proëm.] in this juridical university (for such it is insisted to have been by fortescue[y] and sir edward coke[z]) there are two sorts of collegiate houses; one called inns of chancery, in which the younger students of the law were usually placed, "learning and studying, says fortescue[a], the originals and as it were the elements of the law; who, profiting therein, as they grow to ripeness so are they admitted into the greater inns of the same study, called the inns of court." and in these inns of both kinds, he goes on to tell us, the knights and barons, with other grandees and noblemen of the realm, did use to place their children, though they did not desire to have them thoroughly learned in the law, or to get their living by it's practice: and that in his time there were about two thousand students at these several inns, all of whom he informs us were _filii nobilium_, or gentlemen born. [footnote y: _c._ .] [footnote z: rep. pref.] [footnote a: _ibid._] hence it is evident, that (though under the influence of the monks our universities neglected this study, yet) in the time of henry the sixth it was thought highly necessary and was the universal practice, for the young nobility and gentry to be instructed in the originals and elements of the laws. but by degres [transcriber's note: degrees] this custom has fallen into disuse; so that in the reign of queen elizabeth sir edward coke[b] does not reckon above a thousand students, and the number at present is very considerably less. which seems principally owing to these reasons: first, because the inns of chancery being now almost totally filled by the inferior branch of the profession, they are neither commodious nor proper for the resort of gentlemen of any rank or figure; so that there are now very rarely any young students entered at the inns of chancery: secondly, because in the inns of court all sorts of regimen and academical superintendance, either with regard to morals or studies, are found impracticable and therefore entirely neglected: lastly, because persons of birth and fortune, after having finished their usual courses at the universities, have seldom leisure or resolution sufficient to enter upon a new scheme of study at a new place of instruction. wherefore few gentlemen now resort to the inns of court, but such for whom the knowlege of practice is absolutely necessary; such, i mean, as are intended for the profession: the rest of our gentry, (not to say our nobility also) having usually retired to their estates, or visited foreign kingdoms, or entered upon public life, without any instruction in the laws of the land; and indeed with hardly any opportunity of gaining instruction, unless it can be afforded them in these seats of learning. [footnote b: _ibid._] and that these are the proper places, for affording assistances of this kind to gentlemen of all stations and degrees, cannot (i think) with any colour of reason be denied. for not one of the objections, which are made to the inns of court and chancery, and which i have just enumerated, will hold with regard to the universities. gentlemen may here associate with gentlemen of their own rank and degree. nor are their conduct and studies left entirely to their own discretion; but regulated by a discipline so wise and exact, yet so liberal, so sensible and manly, that their conformity to it's rules (which does at present so much honour to our youth) is not more the effect of constraint, than of their own inclinations and choice. neither need they apprehend too long an avocation hereby from their private concerns and amusements, or (what is a more noble object) the service of their friends and their country. this study will go hand in hand with their other pursuits: it will obstruct none of them; it will ornament and assist them all. but if, upon the whole, there are any still wedded to monastic prejudice, that can entertain a doubt how far this study is properly and regularly _academical_, such persons i am afraid either have not considered the constitution and design of an university, or else think very meanly of it. it must be a deplorable narrowness of mind, that would confine these seats of instruction to the limited views of one or two learned professions. to the praise of this age be it spoken, a more open and generous way of thinking begins now universally to prevail. the attainment of liberal and genteel accomplishments, though not of the intellectual sort, has been thought by our wisest and most affectionate patrons[c], and very lately by the whole university[d], no small improvement of our antient plan of education; and therefore i may safely affirm that nothing (how _unusual_ soever) is, under due regulations, improper to be _taught_ in this place, which is proper for a gentleman to _learn_. but that a science, which distinguishes the criterions of right and wrong; which teaches to establish the one, and prevent, punish, or redress the other; which employs in it's theory the noblest faculties of the soul, and exerts in it's practice the cardinal virtues of the heart; a science, which is universal in it's use and extent, accommodated to each individual, yet comprehending the whole community; that a science like this should have ever been deemed unnecessary to be studied in an university, is matter of astonishment and concern. surely, if it were not before an object of academical knowlege, it was high time to make it one; and to those who can doubt the propriety of it's reception among us (if any such there be) we may return an answer in their own way; that ethics are confessedly a branch of academical learning, and aristotle _himself has said_, speaking of the laws of his own country, that jurisprudence or the knowlege of those laws is the principal and most[e] perfect branch of ethics. [footnote c: lord chancellor clarendon, in his dialogue of education, among his tracts, p. . appears to have been very solicitous, that it might be made "a part of the ornament of our learned academies to teach the qualities of riding, dancing, and fencing, at those hours when more serious exercises should be intermitted."] [footnote d: by accepting in full convocation the remainder of lord clarendon's history from his noble descendants, on condition to apply the profits arising from it's publication to the establishment of a _manage_ in the university.] [footnote e: [greek: teleia malista aretê, hoti tês teleias aretês chrêsis esti.] _ethic. ad nicomach._ _l._ . _c._ .] from a thorough conviction of this truth, our munificent benefactor mr viner, having employed above half a century in amassing materials for new modelling and rendering more commodious the rude study of the laws of the land, consigned both the plan and execution of these his public-spirited designs to the wisdom of his parent university. resolving to dedicate his learned labours "to the benefit of posterity and the perpetual service of his country[f]," he was sensible he could not perform his resolutions in a better and more effectual manner, than by extending to the youth of this place those assistances, of which he so well remembered and so heartily regretted the want. and the sense, which the university has entertained of this ample and most useful benefaction, must appear beyond a doubt from their gratitude in receiving it with all possible marks of esteem[g]; from their alacrity and unexampled dispatch in carrying it into execution[h]; and, above all, from the laws and constitutions by which they have effectually guarded it from the neglect and abuse to which such institutions are liable[i]. we have seen an universal emulation, who best should understand, or most faithfully pursue, the designs of our generous patron: and with pleasure we recollect, that those who are most distinguished by their quality, their fortune, their station, their learning, or their experience, have appeared the most zealous to promote the success of mr viner's establishment. [footnote f: see the preface to the eighteenth volume of his abridgment.] [footnote g: mr viner is enrolled among the public benefactors of the university by decree of convocation.] [footnote h: mr viner died june , . his effects were collected and settled, near a volume of his work printed, almost the whole disposed of, and the accounts made up, in a year and a half from his decease, by the very diligent and worthy administrators with the will annexed, (dr west and dr good of magdalene, dr whalley of oriel, mr buckler of all souls, and mr betts of university college) to whom that care was consigned by the university. another half year was employed in considering and settling a plan of the proposed institution, and in framing the statutes thereupon, which were finally confirmed by convocation on the d of july, . the professor was elected on the th of october following, and two scholars on the succeeding day. and, lastly, it was agreed at the annual audit in , to establish a fellowship; and a fellow was accordingly elected in january following.--the residue of this fund, arising from the sale of mr viner's abridgment, will probably be sufficient hereafter to found another fellowship and scholarship, or three more scholarships, as shall be thought most expedient.] [footnote i: the statutes are in substance as follows: . that the accounts of this benefaction be separately kept, and annually audited by the delegates of accounts and professor, and afterwards reported to convocation. . that a professorship of the laws of england be established, with a salary of two hundred pounds _per annum_; the professor to be elected by convocation, and to be at the time of his election at least a master of arts or bachelor of civil law in the university of oxford, of ten years standing from his matriculation; and also a barrister at law of four years standing at the bar. . that such professor (by himself, or by deputy to be previously approved by convocation) do read one solemn public lecture on the laws of england, and in the english language, in every academical term, at certain stated times previous to the commencement of the common law term; or forfeit twenty pounds for every omission to mr viner's general fund: and also (by himself, or by deputy to be approved, if occasional, by the vice-chancellor and proctors; or, if permanent, both the cause and the deputy to be annually approved by convocation) do yearly read one complete course of lectures on the laws of england, and in the english language, consisting of sixty lectures at the least, to be read during the university term time, with such proper intervals that not more than four lectures may fall within any single week: that the professor do give a month's notice of the time when the course is to begin, and do read _gratis_ to the scholars of mr viner's foundation; but may demand of other auditors such gratuity as shall be settled from time to time by decree of convocation: and that, for every of the said sixty lectures omitted, the professor, on complaint made to the vice-chancellor within the year, do forfeit forty shillings to mr viner's general fund; the proof of having performed his duty to lie upon the said professor. . that every professor do continue in his office during life, unless in case of such misbehaviour as shall amount to bannition by the university statutes; or unless he deserts the profession of the law by betaking himself to another profession; or unless, after one admonition by the vice-chancellor and proctors for notorious neglect, he is guilty of another flagrant omission: in any of which cases he be deprived by the vice-chancellor, with consent of the house of convocation. . that such a number of fellowships with a stipend of fifty pounds _per annum_, and scholarships with a stipend of thirty pounds be established, as the convocation shall from time to time ordain, according to the state of mr viner's revenues. . that every fellow be elected by convocation, and at the time of election be unmarried, and at least a master of arts or bachelor of civil law, and a member of some college or hall in the university of oxford; the scholars of this foundation or such as have been scholars (if qualified and approved of by convocation) to have the preference: that, if not a barrister when chosen, he be called to the bar within one year after his election; but do reside in the university two months in every year, or in case of non-residence do forfeit the stipend of that year to mr viner's general fund. . that every scholar be elected by convocation, and at the time of election be unmarried, and a member of some college or hall in the university of oxford, who shall have been matriculated twenty four calendar months at the least: that he do take the degree of bachelor of civil law with all convenient speed; (either proceeding in arts or otherwise) and previous to his taking the same, between the second and eighth year from his matriculation, be bound to attend two courses of the professor's lectures, to be certified under the professor's hand; and within one year after taking the same be called to the bar: that he do annually reside six months till he is of four years standing, and four months from that time till he is master of arts or bachelor of civil law; after which he be bound to reside two months in every year; or, in case of non-residence, do forfeit the stipend of that year to mr viner's general fund. . that the scholarships do become void in case of non-attendance on the professor, or not taking the degree of bachelor of civil law, being duly admonished so to do by the vice-chancellor and proctors: and that both fellowships and scholarships do expire at the end of ten years after each respective election; and become void in case of gross misbehaviour, non-residence for two years together, marriage, not being called to the bar within the time before limited, (being duly admonished so to be by the vice-chancellor and proctors) or deserting the profession of the law by following any other profession: and that in any of these cases the vice-chancellor, with consent of convocation, do declare the place actually void. . that in case of any vacancy of the professorship, fellowships, or scholarships, the profits of the current year be ratably divided between the predecessor or his representatives, and the successor; and that a new election be had within one month afterwards, unless by that means the time of election shall fall within any vacation, in which case it be deferred to the first week in the next full term. and that before any convocation shall be held for such election, or for any other matter relating to mr viner's benefaction, ten days public notice be given to each college and hall of the convocation, and the cause of convoking it.] the advantages that might result to the science of the law itself, when a little more attended to in these seats of knowlege, perhaps would be very considerable. the leisure and abilities of the learned in these retirements might either suggest expedients, or execute those dictated by wiser heads[k], for improving it's method, retrenching it's superfluities, and reconciling the little contrarieties, which the practice of many centuries will necessarily create in any human system: a task, which those who are deeply employed in business, and the more active scenes of the profession, can hardly condescend to engage in. and as to the interest, or (which is the same) the reputation of the universities themselves, i may venture to pronounce, that if ever this study should arrive to any tolerable perfection either here or at cambridge, the nobility and gentry of this kingdom would not shorten their residence upon this account, nor perhaps entertain a worse opinion of the benefits of academical education. neither should it be considered as a matter of light importance, that while we thus extend the _pomoeria_ of university learning, and adopt a new tribe of citizens within these philosophical walls, we interest a very numerous and very powerful profession in the preservation of our rights and revenues. [footnote k: see lord bacon's proposals and offer of a digest.] for i think it is past dispute that those gentlemen, who resort to the inns of court with a view to pursue the profession, will find it expedient (whenever it is practicable) to lay the previous foundations of this, as well as every other science, in one of our learned universities. we may appeal to the experience of every sensible lawyer, whether any thing can be more hazardous or discouraging than the usual entrance on the study of the law. a raw and unexperienced youth, in the most dangerous season of life, is transpanted [transcriber's note: transplanted] on a sudden into the midst of allurements to pleasure, without any restraint or check but what his own prudence can suggest; with no public direction in what course to pursue his enquiries; no private assistance to remove the distresses and difficulties, which will always embarass a beginner. in this situation he is expected to sequester himself from the world, and by a tedious lonely process to extract the theory of law from a mass of undigested learning; or else by an assiduous attendance on the courts to pick up theory and practice together, sufficient to qualify him for the ordinary run of business. how little therefore is it to be wondered at, that we hear of so frequent miscarriages; that so many gentlemen of bright imaginations grow weary of so unpromising a search[l], and addict themselves wholly to amusements, or other less innocent pursuits; and that so many persons of moderate capacity confuse themselves at first setting out, and continue ever dark and puzzled during the remainder of their lives! [footnote l: sir henry spelman, in the preface to his glossary, gives us a very lively picture of his own distress upon this occasion. "_emisit me mater londinum, juris nostri capessendi gratia; cujus cum vestibulum salutassem, reperissemque linguam peregrinam, dialectum barbaram, methodum inconcinnam, molem non ingentem solum sed perpetuis humeris sustinendam, excidit mihi (fateor) animus, &c._"] the evident want of some assistance in the rudiments of legal knowlege, has given birth to a practice, which, if ever it had grown to be general, must have proved of extremely pernicious consequence: i mean the custom, by some so very warmly recommended, to drop all liberal education, as of no use to lawyers; and to place them, in it's stead, as [transcriber's note: at] the desk of some skilful attorney; in order to initiate them early in all the depths of practice, and render them more dextrous in the mechanical part of business. a few instances of particular persons, (men of excellent learning, and unblemished integrity) who, in spight of this method of education, have shone in the foremost ranks of the bar, have afforded some kind of sanction to this illiberal path to the profession, and biassed many parents, of shortsighted judgment, in it's favour: not considering, that there are some geniuses, formed to overcome all disadvantages, and that from such particular instances no general rules can be formed; nor observing, that those very persons have frequently recommended by the most forcible of all examples, the disposal of their own offspring, a very different foundation of legal studies, a regular academical education. perhaps too, in return, i could now direct their eyes to our principal seats of justice, and suggest a few hints, in favour of university learning[m]:--but in these all who hear me, i know, have already prevented me. [footnote m: the four highest offices in the law were at that time filled by gentlemen, two of whom had been fellows of all souls college; another, student of christ-church; and the fourth a fellow of trinity college, cambridge.] making therefore due allowance for one or two shining exceptions, experience may teach us to foretell that a lawyer thus educated to the bar, in subservience to attorneys and solicitors[n], will find he has begun at the wrong end. if practice be the whole he is taught, practice must also be the whole he will ever know: if he be uninstructed in the elements and first principles upon which the rule of practice is founded, the least variation from established precedents will totally distract and bewilder him: _ita lex scripta est_[o] is the utmost his knowlege will arrive at; he must never aspire to form, and seldom expect to comprehend, any arguments drawn _a priori_, from the spirit of the laws and the natural foundations of justice. [footnote n: see kennet's life of somner. p. .] [footnote o: _ff._ . . .] nor is this all; for (as few persons of birth, or fortune, or even of scholastic education, will submit to the drudgery of servitude and the manual labour of copying the trash of an office) should this infatuation prevail to any considerable degree, we must rarely expect to see a gentleman of distinction or learning at the bar. and what the consequence may be, to have the interpretation and enforcement of the laws (which include the entire disposal of our properties, liberties, and lives) fall wholly into the hands of obscure or illiterate men, is matter of very public concern. the inconveniences here pointed out can never be effectually prevented, but by making academical education a previous step to the profession of the common law, and at the same time making the rudiments of the law a part of academical education. for sciences are of a sociable disposition, and flourish best in the neighbourhood of each other: nor is there any branch of learning, but may be helped and improved by assistances drawn from other arts. if therefore the student in our laws hath formed both his sentiments and style, by perusal and imitation of the purest classical writers, among whom the historians and orators will best deserve his regard; if he can reason with precision, and separate argument from fallacy, by the clear simple rules of pure unsophisticated logic; if he can fix his attention, and steadily pursue truth through any the most intricate deduction, by the use of mathematical demonstrations; if he has enlarged his conceptions of nature and art, by a view of the several branches of genuine, experimental, philosophy; if he has impressed on his mind the sound maxims of the law of nature, the best and most authentic foundation of human laws; if, lastly, he has contemplated those maxims reduced to a practical system in the laws of imperial rome; if he has done this or any part of it, (though all may be easily done under as able instructors as ever graced any seats of learning) a student thus qualified may enter upon the study of the law with incredible advantage and reputation. and if, at the conclusion, or during the acquisition of these accomplishments, he will afford himself here a year or two's farther leisure, to lay the foundation of his future labours in a solid scientifical method, without thirsting too early to attend that practice which it is impossible he should rightly comprehend, he will afterwards proceed with the greatest ease, and will unfold the most intricate points with an intuitive rapidity and clearness. i shall not insist upon such motives as might be drawn from principles of oeconomy, and are applicable to particulars only: i reason upon more general topics. and therefore to the qualities of the head, which i have just enumerated, i cannot but add those of the heart; affectionate loyalty to the king, a zeal for liberty and the constitution, a sense of real honour, and well grounded principles of religion; as necessary to form a truly valuable english lawyer, a hyde, a hale, or a talbot. and, whatever the ignorance of some, or unkindness of others, may have heretofore untruly suggested, experience will warrant us to affirm, that these endowments of loyalty and public spirit, of honour and religion, are no where to be found in more high perfection than in the two universities of this kingdom. before i conclude, it may perhaps be expected, that i lay before you a short and general account of the method i propose to follow, in endeavouring to execute the trust you have been pleased to repose in my hands. and in these solemn lectures, which are ordained to be read at the entrance of every term, (more perhaps to do public honour to this laudable institution, than for the private instruction of individuals[p]) i presume it will best answer the intent of our benefactor and the expectation of this learned body, if i attempt to illustrate at times such detached titles of the law, as are the most easy to be understood, and most capable of historical or critical ornament. but in reading the complete course, which is annually consigned to my care, a more regular method will be necessary; and, till a better is proposed, i shall take the liberty to follow the same that i have already submitted to the public[q]. to fill up and finish that outline with propriety and correctness, and to render the whole intelligible to the uninformed minds of beginners, (whom we are too apt to suppose acquainted with terms and ideas, which they never had opportunity to learn) this must be my ardent endeavour, though by no means my promise to accomplish. you will permit me however very briefly to describe, rather what i conceive an academical expounder of the laws should do, than what i have ever known to be done. [footnote p: see lowth's _oratio crewiana_, p. .] [footnote q: the analysis of the laws of england, first published, _a.d._ , and exhibiting the order and principal divisions of the ensuing commentaries; which were originally submitted to the university in a private course of lectures, _a.d._ .] he should consider his course as a general map of the law, marking out the shape of the country, it's connexions and boundaries, it's greater divisions and principal cities: it is not his business to describe minutely the subordinate limits, or to fix the longitude and latitude of every inconsiderable hamlet. his attention should be engaged, like that of the readers in fortescue's inns of chancery, "in tracing out the originals and as it were the elements of the law." for if, as justinian[r] has observed, the tender understanding of the student be loaded at the first with a multitude and variety of matter, it will either occasion him to desert his studies, or will carry him heavily through them, with much labour, delay, and despondence. these originals should be traced to their fountains, as well as our distance will permit; to the customs of the britons and germans, as recorded by caesar and tacitus; to the codes of the northern nations on the continent, and more especially to those of our own saxon princes; to the rules of the roman law, either left here in the days of papinian, or imported by vacarius and his followers; but, above all, to that inexhaustible reservoir of legal antiquities and learning, the feodal law, or, as spelman[s] has entitled it, the law of nations in our western orb. these primary rules and fundamental principles should be weighed and compared with the precepts of the law of nature, and the practice of other countries; should be explained by reasons, illustrated by examples, and confirmed by undoubted authorities; their history should be deduced, their changes and revolutions observed, and it should be shewn how far they are connected with, or have at any time been affected by, the civil transactions of the kingdom. [footnote r: _incipientibus nobis exponere jura populi romani, ita videntur tradi posse commodissime, si primo levi ac simplici via singula tradantur: alioqui, si statim ab initio rudem adhuc & infirmum animum studiosi multitudine ac varietate rerum oneravimus, duorum alterum, aut desertorem studiorum efficiemus, aut cum magno labore, saepe etiam cum diffidentia (quae plerumque juvenes avertit) serius ad id perducemus, ad quod leviore via ductus, sine magno labore & sine ulla diffidentia maturius perduci potuisset._ _inst._ . . .] [footnote s: of parliaments. .] a plan of this nature, if executed with care and ability, cannot fail of administring a most useful and rational entertainment to students of all ranks and professions; and yet it must be confessed that the study of the laws is not merely a matter of amusement: for as a very judicious writer[t] has observed upon a similar occasion, the learner "will be considerably disappointed if he looks for entertainment without the expence of attention." an attention, however, not greater than is usually bestowed in mastering the rudiments of other sciences, or sometimes in pursuing a favorite recreation or exercise. and this attention is not equally necessary to be exerted by every student upon every occasion. some branches of the law, as the formal process of civil suits, and the subtile distinctions incident to landed property, which are the most difficult to be thoroughly understood, are the least worth the pains of understanding, except to such gentlemen as intend to pursue the profession. to others i may venture to apply, with a slight alteration, the words of sir john fortescue[u], when first his royal pupil determines to engage in this study. "it will not be necessary for a gentleman, as such, to examine with a close application the critical niceties of the law. it will fully be sufficient, and he may well enough be denominated a lawyer, if under the instruction of a master he traces up the principles and grounds of the law, even to their original elements. therefore in a very short period, and with very little labour, he may be sufficiently informed in the laws of his country, if he will but apply his mind in good earnest to receive and apprehend them. for, though such knowlege as is necessary for a judge is hardly to be acquired by the lucubrations of twenty years, yet with a genius of tolerable perspicacity, that knowlege which is fit for a person of birth or condition may be learned in a single year, without neglecting his other improvements." [footnote t: dr taylor's preface to elem. of civil law.] [footnote u: _tibi, princeps, necesse non erit mysteria legis angliae longo disciplinatu rimare. sufficiet tibi,--_et fatis _denominari legista mereberis, si legum principia & causas, usque ad elementa, discipuli more indagaveris.--quare tu, princeps serenissime, parvo tempore, parva industria, sufficienter eris in legibus regni angliae eruditus, dummodo ad ejus apprehensionem tu conferas animum tuum.--nosco namque ingenii tui perspicacitatem, quo audacter pronuntio quod in legibus illis (licet earum peritia, qualis judicibus necessaria est, vix viginti annorum lucubrationibus acquiratur) tu doctrinam principi congruam in anno uno sufficienter nancisceris; nec interim militarem disciplinam, ad quam tam ardenter anhelas, negliges; sed ea, recreationis loco, etiam anno illo tu ad libitum perfrueris._ _c._ .] to the few therefore (the very few, i am persuaded,) that entertain such unworthy notions of an university, as to suppose it intended for mere dissipation of thought; to such as mean only to while away the aukward interval from childhood to twenty one, between the restraints of the school and the licentiousness of politer life, in a calm middle state of mental and of moral inactivity; to these mr viner gives no invitation to an entertainment which they never can relish. but to the long and illustrious train of noble and ingenuous youth, who are not more distinguished among us by their birth and possessions, than by the regularity of their conduct and their thirst after useful knowlege, to these our benefactor has consecrated the fruits of a long and laborious life, worn out in the duties of his calling; and will joyfully reflect (if such reflexions can be now the employment of his thoughts) that he could not more effectually have benefited posterity, or contributed to the service of the public, than by founding an institution which may instruct the rising generation in the wisdom of our civil polity, and inform them with a desire to be still better acquainted with the laws and constitution of their country. section the second. of the nature of laws in general. law, in it's most general and comprehensive sense, signifies a rule of action; and is applied indiscriminately to all kinds of action, whether animate, or inanimate, rational or irrational. thus we say, the laws of motion, of gravitation, of optics, or mechanics, as well as the laws of nature and of nations. and it is that rule of action, which is prescribed by some superior, and which the inferior is bound to obey. thus when the supreme being formed the universe, and created matter out of nothing, he impressed certain principles upon that matter, from which it can never depart, and without which it would cease to be. when he put that matter into motion, he established certain laws of motion, to which all moveable bodies must conform. and, to descend from the greatest operations to the smallest, when a workman forms a clock, or other piece of mechanism, he establishes at his own pleasure certain arbitrary laws for it's direction; as that the hand shall describe a given space in a given time; to which law as long as the work conforms, so long it continues in perfection, and answers the end of it's formation. if we farther advance, from mere inactive matter to vegetable and animal life, we shall find them still governed by laws; more numerous indeed, but equally fixed and invariable. the whole progres of plants, from the seed to the root, and from thence to the seed again;--the method of animal nutrition, digestion, secretion, and all other branches of vital oeconomy;--are not left to chance, or the will of the creature itself, but are performed in a wondrous involuntary manner, and guided by unerring rules laid down by the great creator. this then is the general signification of law, a rule of action dictated by some superior being; and in those creatures that have neither the power to think, nor to will, such laws must be invariably obeyed, so long as the creature itself subsists, for it's existence depends on that obedience. but laws, in their more confined sense, and in which it is our present business to consider them, denote the rules, not of action in general, but of _human_ action or conduct: that is, the precepts by which man, the noblest of all sublunary beings, a creature endowed with both reason and freewill, is commanded to make use of those faculties in the general regulation of his behaviour. man, considered as a creature, must necessarily be subject to the laws of his creator, for he is entirely a dependent being. a being, independent of any other, has no rule to pursue, but such as he prescribes to himself; but a state of dependance will inevitably oblige the inferior to take the will of him, on whom he depends, as the rule of his conduct: not indeed in every particular, but in all those points wherein his dependance consists. this principle therefore has more or less extent and effect, in proportion as the superiority of the one and the dependance of the other is greater or less, absolute or limited. and consequently as man depends absolutely upon his maker for every thing, it is necessary that he should in all points conform to his maker's will. this will of his maker is called the law of nature. for as god, when he created matter, and endued it with a principle of mobility, established certain rules for the perpetual direction of that motion; so, when he created man, and endued him with freewill to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that freewill is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws. considering the creator only as a being of infinite _power_, he was able unquestionably to have prescribed whatever laws he pleased to his creature, man, however unjust or severe. but as he is also a being of infinite _wisdom_, he has laid down only such laws as were founded in those relations of justice, that existed in the nature of things antecedent to any positive precept. these are the eternal, immutable laws of good and evil, to which the creator himself in all his dispensations conforms; and which he has enabled human reason to discover, so far as they are necessary for the conduct of human actions. such among others are these principles: that we should live honestly, should hurt nobody, and should render to every one it's due; to which three general precepts justinian[a] has reduced the whole doctrine of law. [footnote a: _juris praecepta sunt haec, honeste vivere, alterum non laedere, suum cuique tribuere._ _inst._ . . .] but if the discovery of these first principles of the law of nature depended only upon the due exertion of right reason, and could not otherwise be attained than by a chain of metaphysical disquisitions, mankind would have wanted some inducement to have quickened their inquiries, and the greater part of the world would have rested content in mental indolence, and ignorance it's inseparable companion. as therefore the creator is a being, not only of infinite _power_, and _wisdom_, but also of infinite _goodness_, he has been pleased so to contrive the constitution and frame of humanity, that we should want no other prompter to enquire after and pursue the rule of right, but only our own self-love, that universal principle of action. for he has so intimately connected, so inseparably interwoven the laws of eternal justice with the happiness of each individual, that the latter cannot be attained but by observing the former; and, if the former be punctually obeyed, it cannot but induce the latter. in consequence of which mutual connection of justice and human felicity, he has not perplexed the law of nature with a multitude of abstracted rules and precepts, referring merely to the fitness or unfitness of things, as some have vainly surmised; but has graciously reduced the rule of obedience to this one paternal precept, "that man should pursue his own happiness." this is the foundation of what we call ethics, or natural law. for the several articles into which it is branched in our systems, amount to no more than demonstrating, that this or that action tends to man's real happiness, and therefore very justly concluding that the performance of it is a part of the law of nature; or, on the other hand, that this or that action is destructive of man's real happiness, and therefore that the law of nature forbids it. this law of nature, being co-eval with mankind and dictated by god himself, is of course superior in obligation to any other. it is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original. but in order to apply this to the particular exigencies of each individual, it is still necessary to have recourse to reason; whose office it is to discover, as was before observed, what the law of nature directs in every circumstance of life; by considering, what method will tend the most effectually to our own substantial happiness. and if our reason were always, as in our first ancestor before his transgression, clear and perfect, unruffled by passions, unclouded by prejudice, unimpaired by disease or intemperance, the task would be pleasant and easy; we should need no other guide but this. but every man now finds the contrary in his own experience; that his reason is corrupt, and his understanding full of ignorance and error. this has given manifold occasion for the benign interposition of divine providence; which, in companion to the frailty, the imperfection, and the blindness of human reason, hath been pleased, at sundry times and in divers manners, to discover and enforce it's laws by an immediate and direct revelation. the doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy scriptures. these precepts, when revealed, are found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man's felicity. but we are not from thence to conclude that the knowlege of these truths was attainable by reason, in it's present corrupted state; since we find that, until they were revealed, they were hid from the wisdom of ages. as then the moral precepts of this law are indeed of the same original with those of the law of nature, so their intrinsic obligation is of equal strength and perpetuity. yet undoubtedly the revealed law is (humanly speaking) of infinitely more authority than what we generally call the natural law. because one is the law of nature, expressly declared so to be by god himself; the other is only what, by the assistance of human reason, we imagine to be that law. if we could be as certain of the latter as we are of the former, both would have an equal authority; but, till then, they can never be put in any competition together. upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these. there is, it is true, a great number of indifferent points, in which both the divine law and the natural leave a man at his own liberty; but which are found necessary for the benefit of society to be restrained within certain limits. and herein it is that human laws have their greatest force and efficacy; for, with regard to such points as are not indifferent, human laws are only declaratory of, and act in subordination to, the former. to instance in the case of murder: this is expressly forbidden by the divine, and demonstrably by the natural law; and from these prohibitions arises the true unlawfulness of this crime. those human laws, that annex a punishment to it, do not at all increase it's moral guilt, or superadd any fresh obligation _in foro conscientiae_ to abstain from it's perpetration. nay, if any human law should allow or injoin us to commit it, we are bound to transgress that human law, or else we must offend both the natural and the divine. but with regard to matters that are in themselves indifferent, and are not commanded or forbidden by those superior laws; such, for instance, as exporting of wool into foreign countries; here the inferior legislature has scope and opportunity to interpose, and to make that action unlawful which before was not so. if man were to live in a state of nature, unconnected with other individuals, there would be no occasion for any other laws, than the law of nature, and the law of god. neither could any other law possibly exist; for a law always supposes some superior who is to make it; and in a state of nature we are all equal, without any other superior but him who is the author of our being. but man was formed for society; and, as is demonstrated by the writers on this subject[b], is neither capable of living alone, nor indeed has the courage to do it. however, as it is impossible for the whole race of mankind to be united in one great society, they must necessarily divide into many; and form separate states, commonwealths, and nations; entirely independent of each other, and yet liable to a mutual intercourse. hence arises a third kind of law to regulate this mutual intercourse, called "the law of nations;" which, as none of these states will acknowlege a superiority in the other, cannot be dictated by either; but depends entirely upon the rules of natural law, or upon mutual compacts, treaties, leagues, and agreements between these several communities: in the construction also of which compacts we have no other rule to resort to, but the law of nature; being the only one to which both communities are equally subject: and therefore the civil law[c] very justly observes, that _quod naturalis ratio inter omnes homines constituit, vocatur jus gentium_. [footnote b: puffendorf, _l._ . _c._ . compared with barbeyrac's commentary.] [footnote c: _ff._ . . .] thus much i thought it necessary to premise concerning the law of nature, the revealed law, and the law of nations, before i proceeded to treat more fully of the principal subject of this section, municipal or civil law; that is, the rule by which particular districts, communities, or nations are governed; being thus defined by justinian[d], "_jus civile est quod quisque sibi populus constituit_." i call it _municipal_ law, in compliance with common speech; for, tho' strictly that expression denotes the particular customs of one single _municipium_ or free town, yet it may with sufficient propriety be applied to any one state or nation, which is governed by the same laws and customs. [footnote d: _inst._ . . .] municipal law, thus understood, is properly defined to be "a rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong." let us endeavour to explain it's several properties, as they arise out of this definition. and, first, it is a _rule_; not a transient sudden order from a superior to or concerning a particular person; but something permanent, uniform, and universal. therefore a particular act of the legislature to confiscate the goods of titius, or to attaint him of high treason, does not enter into the idea of a municipal law: for the operation of this act is spent upon titius only, and has no relation to the community in general; it is rather a sentence than a law. but an act to declare that the crime of which titius is accused shall be deemed high treason; this has permanency, uniformity, and universality, and therefore is properly a _rule_. it is also called a _rule_, to distinguish it from _advice_ or _counsel_, which we are at liberty to follow or not, as we see proper; and to judge upon the reasonableness or unreasonableness of the thing advised. whereas our obedience to the _law_ depends not upon _our approbation_, but upon the _maker's will_. counsel is only matter of persuasion, law is matter of injunction; counsel acts only upon the willing, law upon the unwilling also. it is also called a _rule_, to distinguish it from a _compact_ or _agreement_; for a compact is a promise proceeding _from_ us, law is a command directed _to_ us. the language of a compact is, "i will, or will not, do this;" that of a law is, "thou shalt, or shalt not, do it." it is true there is an obligation which a compact carries with it, equal in point of conscience to that of a law; but then the original of the obligation is different. in compacts, we ourselves determine and promise what shall be done, before we are obliged to do it; in laws, we are obliged to act, without ourselves determining or promising any thing at all. upon these accounts law is defined to be "_a rule_." municipal law is also "a rule _of civil conduct_." this distinguishes municipal law from the natural, or revealed; the former of which is the rule of _moral_ conduct, and the latter not only the rule of moral conduct, but also the rule of faith. these regard man as a creature, and point out his duty to god, to himself, and to his neighbour, considered in the light of an individual. but municipal or civil law regards him also as a citizen, and bound to other duties towards his neighbour, than those of mere nature and religion: duties, which he has engaged in by enjoying the benefits of the common union; and which amount to no more, than that he do contribute, on his part, to the subsistence and peace of the society. it is likewise "a rule _prescribed_." because a bare resolution, confined in the breast of the legislator, without manifesting itself by some external sign, can never be properly a law. it is requisite that this resolution be notified to the people who are to obey it. but the manner in which this notification is to be made, is matter of very great indifference. it may be notified by universal tradition and long practice, which supposes a previous publication, and is the case of the common law of england. it may be notified, _viva voce_, by officers appointed for that purpose, as is done with regard to proclamations, and such acts of parliament as are appointed to be publicly read in churches and other assemblies. it may lastly be notified by writing, printing, or the like; which is the general course taken with all our acts of parliament. yet, whatever way is made use of, it is incumbent on the promulgators to do it in the most public and perspicuous manner; not like caligula, who (according to dio cassius) wrote his laws in a very small character, and hung them up upon high pillars, the more effectually to ensnare the people. there is still a more unreasonable method than this, which is called making of laws _ex post facto_; when _after_ an action is committed, the legislator then for the first time declares it to have been a crime, and inflicts a punishment upon the person who has committed it; here it is impossible that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law; he had therefore no cause to abstain from it; and all punishment for not abstaining must of consequence be cruel and unjust[e]. all laws should be therefore made to commence _in futuro_, and be notified before their commencement; which is implied in the term "_prescribed_." but when this rule is in the usual manner notified, or prescribed, it is then the subject's business to be thoroughly acquainted therewith; for if ignorance, of what he _might_ know, were admitted as a legitimate excuse, the laws would be of no effect, but might always be eluded with impunity. [footnote e: such laws among the romans were denominated _privilegia_, or private laws, of which cicero _de leg._ . . and in his oration _pro domo_, . thus speaks; "_vetant leges sacratae, vetant duodecim tabulae, leges privatis hominibus irrogari; id enim est privilegium. nemo unquam tulit, nihil est crudelius, nihil perniciosius, nihil quod minus haec civitas ferre possit_."] but farther: municipal law is "a rule of civil conduct prescribed _by the supreme power in a state_." for legislature, as was before observed, is the greatest act of superiority that can be exercised by one being over another. wherefore it is requisite to the very essence of a law, that it be made by the supreme power. sovereignty and legislature are indeed convertible terms; one cannot subsist without the other. this will naturally lead us into a short enquiry concerning the nature of society and civil government; and the natural, inherent right that belongs to the sovereignty of a state, wherever that sovereignty be lodged, of making and enforcing laws. the only true and natural foundations of society are the wants and the fears of individuals. not that we can believe, with some theoretical writers, that there ever was a time when there was no such thing as society; and that, from the impulse of reason, and through a sense of their wants and weaknesses, individuals met together in a large plain, entered into an original contract, and chose the tallest man present to be their governor. this notion, of an actually existing unconnected state of nature, is too wild to be seriously admitted; and besides it is plainly contradictory to the revealed accounts of the primitive origin of mankind, and their preservation two thousand years afterwards; both which were effected by the means of single families. these formed the first society, among themselves; which every day extended it's limits, and when it grew too large to subsist with convenience in that pastoral state, wherein the patriarchs appear to have lived, it necessarily subdivided itself by various migrations into more. afterwards, as agriculture increased, which employs and can maintain a much greater number of hands, migrations became less frequent; and various tribes, which had formerly separated, re-united again; sometimes by compulsion and conquest, sometimes by accident, and sometimes perhaps by compact. but though society had not it's formal beginning from any convention of individuals, actuated by their wants and their fears; yet it is the _sense_ of their weakness and imperfection that _keeps_ mankind together; that demonstrates the necessity of this union; and that therefore is the solid and natural foundation, as well as the cement, of society. and this is what we mean by the original contract of society; which, though perhaps in no instance it has ever been formally expressed at the first institution of a state, yet in nature and reason must always be understood and implied, in the very act of associating together: namely, that the whole should protect all it's parts, and that every part should pay obedience to the will of the whole; or, in other words, that the community should guard the rights of each individual member, and that (in return for this protection) each individual should submit to the laws of the community; without which submission of all it was impossible that protection could be certainly extended to any. for when society is once formed, government results of course, as necessary to preserve and to keep that society in order. unless some superior were constituted, whose commands and decisions all the members are bound to obey, they would still remain as in a state of nature, without any judge upon earth to define their several rights, and redress their several wrongs. but, as all the members of society are naturally equal, it may be asked, in whose hands are the reins of government to be entrusted? to this the general answer is easy; but the application of it to particular cases has occasioned one half of those mischiefs which are apt to proceed from misguided political zeal. in general, all mankind will agree that government should be reposed in such persons, in whom those qualities are most likely to be found, the perfection of which are among the attributes of him who is emphatically stiled the supreme being; the three grand requisites, i mean, of wisdom, of goodness, and of power: wisdom, to discern the real interest of the community; goodness, to endeavour always to pursue that real interest; and strength, or power, to carry this knowlege and intention into action. these are the natural foundations of sovereignty, and these are the requisites that ought to be found in every well constituted frame of government. how the several forms of government we now see in the world at first actually began, is matter of great uncertainty, and has occasioned infinite disputes. it is not my business or intention to enter into any of them. however they began, or by what right soever they subsist, there is and must be in all of them a supreme, irresistible, absolute, uncontrolled authority, in which the _jura summi imperii_, or the rights of sovereignty, reside. and this authority is placed in those hands, wherein (according to the opinion of the founders of such respective states, either expressly given, or collected from their tacit approbation) the qualities requisite for supremacy, wisdom, goodness, and power, are the most likely to be found. the political writers of antiquity will not allow more than three regular forms of government; the first, when the sovereign power is lodged in an aggregate assembly consisting of all the members of a community, which is called a democracy; the second, when it is lodged in a council, composed of select members, and then it is stiled an aristocracy; the last, when it is entrusted in the hands of a single person, and then it takes the name of a monarchy. all other species of government, they say, are either corruptions of, or reducible to, these three. by the sovereign power, as was before observed, is meant the making of laws; for wherever that power resides, all others must conform to, and be directed by it, whatever appearance the outward form and administration of the government may put on. for it is at any time in the option of the legislature to alter that form and administration by a new edict or rule, and to put the execution of the laws into whatever hands it pleases: and all the other powers of the state must obey the legislative power in the execution of their several functions, or else the constitution is at an end. in a democracy, where the right of making laws resides in the people at large, public virtue, or goodness of intention, is more likely to be found, than either of the other qualities of government. popular assemblies are frequently foolish in their contrivance, and weak in their execution; but generally mean to do the thing that is right and just, and have always a degree of patriotism or public spirit. in aristocracies there is more wisdom to be found, than in the other frames of government; being composed, or intended to be composed, of the most experienced citizens; but there is less honesty than in a republic, and less strength than in a monarchy. a monarchy is indeed the most powerful of any, all the sinews of government being knit together, and united in the hand of the prince; but then there is imminent danger of his employing that strength to improvident or oppressive purposes. thus these three species of government have, all of them, their several perfections and imperfections. democracies are usually the best calculated to direct the end of a law; aristocracies to invent the means by which that end shall be obtained; and monarchies to carry those means into execution. and the antients, as was observed, had in general no idea of any other permanent form of government but these three; for though cicero[f] declares himself of opinion, "_esse optime constitutam rempublicam, quae ex tribus generibus illis, regali, optimo, et populari, sit modice confusa_;" yet tacitus treats this notion of a mixed government, formed out of them all, and partaking of the advantages of each, as a visionary whim; and one that, if effected, could never be lasting or secure[g]. [footnote f: in his fragments _de rep._ _l._ .] [footnote g: "_cunctas nationes et urbes populus, aut primores, aut singuli regunt: delecta ex his, et constituta reipublicae forma laudari facilius quam evenire, vel, si evenit, haud diuturna esse potest._" _ann._ _l._ .] but happily for us of this island, the british constitution has long remained, and i trust will long continue, a standing exception to the truth of this observation. for, as with us the executive power of the laws is lodged in a single person, they have all the advantages of strength and dispatch, that are to be found in the most absolute monarchy; and, as the legislature of the kingdom is entrusted to three distinct powers, entirely independent of each other; first, the king; secondly, the lords spiritual and temporal, which is an aristocratical assembly of persons selected for their piety, their birth, their wisdom, their valour, or their property; and, thirdly, the house of commons, freely chosen by the people from among themselves, which makes it a kind of democracy; as this aggregate body, actuated by different springs, and attentive to different interests, composes the british parliament, and has the supreme disposal of every thing; there can no inconvenience be attempted by either of the three branches, but will be withstood by one of the other two; each branch being armed with a negative power, sufficient to repel any innovation which it shall think inexpedient or dangerous. here then is lodged the sovereignty of the british constitution; and lodged as beneficially as is possible for society. for in no other shape could we be so certain of finding the three great qualities of government so well and so happily united. if the supreme power were lodged in any one of the three branches separately, we must be exposed to the inconveniences of either absolute monarchy, aristocracy, or democracy; and so want two of the three principal ingredients of good polity, either virtue, wisdom, or power. if it were lodged in any two of the branches; for instance, in the king and house of lords, our laws might be providently made, and well executed, but they might not always have the good of the people in view: if lodged in the king and commons, we should want that circumspection and mediatory caution, which the wisdom of the peers is to afford: if the supreme rights of legislature were lodged in the two houses only, and the king had no negative upon their proceedings, they might be tempted to encroach upon the royal prerogative, or perhaps to abolish the kingly office, and thereby weaken (if not totally destroy) the strength of the executive power. but the constitutional government of this island is so admirably tempered and compounded, that nothing can endanger or hurt it, but destroying the equilibrium of power between one branch of the legislature and the rest. for if ever it should happen that the independence of any one of the three should be lost, or that it should become subservient to the views of either of the other two, there would soon be an end of our constitution. the legislature would be changed from that, which was originally set up by the general consent and fundamental act of the society; and such a change, however effected, is according to mr locke[h] (who perhaps carries his theory too far) at once an entire dissolution of the bands of government; and the people would be reduced to a state of anarchy, with liberty to constitute to themselves a new legislative power. [footnote h: on government, part . §. .] having thus cursorily considered the three usual species of government, and our own singular constitution, selected and compounded from them all, i proceed to observe, that, as the power of making laws constitutes the supreme authority, so wherever the supreme authority in any state resides, it is the right of that authority to make laws; that is, in the words of our definition, _to prescribe the rule of civil action_. and this may be discovered from the very end and institution of civil states. for a state is a collective body, composed of a multitude of individuals, united for their safety and convenience, and intending to act together as one man. if it therefore is to act as one man, it ought to act by one uniform will. but, inasmuch as political communities are made up of many natural persons, each of whom has his particular will and inclination, these several wills cannot by any _natural_ union be joined together, or tempered and disposed into a lasting harmony, so as to constitute and produce that one uniform will of the whole. it can therefore be no otherwise produced than by a _political_ union; by the consent of all persons to submit their own private wills to the will of one man, or of one or more assemblies of men, to whom the supreme authority is entrusted: and this will of that one man, or assemblage of men, is in different states, according to their different constitutions, understood to be _law_. thus far as to the _right_ of the supreme power to make laws; but farther, it is it's _duty_ likewise. for since the respective members are bound to conform themselves to the will of the state, it is expedient that they receive directions from the state declaratory of that it's will. but since it is impossible, in so great a multitude, to give injunctions to every particular man, relative to each particular action, therefore the state establishes general rules, for the perpetual information and direction of all persons in all points, whether of positive or negative duty. and this, in order that every man may know what to look upon as his own, what as another's; what absolute and what relative duties are required at his hands; what is to be esteemed honest, dishonest, or indifferent; what degree every man retains of his natural liberty; what he has given up as the price of the benefits of society; and after what manner each person is to moderate the use and exercise of those rights which the state assigns him, in order to promote and secure the public tranquillity. from what has been advanced, the truth of the former branch of our definition, is (i trust) sufficiently evident; that "_municipal law is a rule of civil conduct prescribed by the supreme power in a state_." i proceed now to the latter branch of it; that it is a rule so prescribed, "_commanding what is right, and prohibiting what is wrong_." now in order to do this completely, it is first of all necessary that the boundaries of right and wrong be established and ascertained by law. and when this is once done, it will follow of course that it is likewise the business of the law, considered as a rule of civil conduct, to enforce these rights and to restrain or redress these wrongs. it remains therefore only to consider in what manner the law is said to ascertain the boundaries of right and wrong; and the methods which it takes to command the one and prohibit the other. for this purpose every law may be said to consist of several parts: one, _declaratory_; whereby the rights to be observed, and the wrongs to be eschewed, are clearly defined and laid down: another, _directory_, whereby the subject is instructed and enjoined to observe those rights, and to abstain from the commission of those wrongs: a third, _remedial_; whereby a method is pointed out to recover a man's private rights, or redress his private wrongs: to which may be added a fourth, usually termed the _sanction_, or _vindicatory_ branch of the law; whereby it is signified what evil or penalty shall be incurred by such as commit any public wrongs, and transgress or neglect their duty. with regard to the first of these, the _declaratory_ part of the municipal law, this depends not so much upon the law of revelation or of nature, as upon the wisdom and will of the legislator. this doctrine, which before was slightly touched, deserves a more particular explication. those rights then which god and nature have established, and are therefore called natural rights, such as are life and liberty, need not the aid of human laws to be more effectually invested in every man than they are; neither do they receive any additional strength when declared by the municipal laws to be inviolable. on the contrary, no human legislature has power to abridge or destroy them, unless the owner shall himself commit some act that amounts to a forfeiture. neither do divine or natural _duties_ (such as, for instance, the worship of god, the maintenance of children, and the like) receive any stronger sanction from being also declared to be duties by the law of the land. the case is the same as to crimes and misdemesnors, that are forbidden by the superior laws, and therefore stiled _mala in se_, such as murder, theft, and perjury; which contract no additional turpitude from being declared unlawful by the inferior legislature. for that legislature in all these cases acts only, as was before observed, in subordination to the great lawgiver, transcribing and publishing his precepts. so that, upon the whole, the declaratory part of the municipal law has no force or operation at all, with regard to actions that are naturally and intrinsically right or wrong. but with regard to things in themselves indifferent, the case is entirely altered. these become either right or wrong, just or unjust, duties or misdemesnors, according as the municipal legislator sees proper, for promoting the welfare of the society, and more effectually carrying on the purposes of civil life. thus our own common law has declared, that the goods of the wife do instantly upon marriage become the property and right of the husband; and our statute law has declared all monopolies a public offence: yet that right, and this offence, have no foundation in nature; but are merely created by the law, for the purposes of civil society. and sometimes, where the thing itself has it's rise from the law of nature, the particular circumstances and mode of doing it become right or wrong, as the laws of the land shall direct. thus, for instance, in civil duties; obedience to superiors is the doctrine of revealed as well as natural religion: but who those superiors shall be, and in what circumstances, or to what degrees they shall be obeyed, is the province of human laws to determine. and so, as to injuries or crimes, it must be left to our own legislature to decide, in what cases the seising another's cattle shall amount to the crime of robbery; and where it shall be a justifiable action, as when a landlord takes them by way of distress for rent. thus much for the _declaratory_ part of the municipal law: and the _directory_ stands much upon the same footing; for this virtually includes the former, the declaration being usually collected from the direction. the law that says, "thou shalt not steal," implies a declaration that stealing is a crime. and we have seen that, in things naturally indifferent, the very essence of right and wrong depends upon the direction of the laws to do or to omit it. the _remedial_ part of a law is so necessary a consequence of the former two, that laws must be very vague and imperfect without it. for in vain would rights be declared, in vain directed to be observed, if there were no method of recovering and asserting those rights, when wrongfully withheld or invaded. this is what we mean properly, when we speak of the protection of the law. when, for instance, the _declaratory_ part of the law has said "that the field or inheritance, which belonged to titius's father, is vested by his death in titius;" and the _directory_ part has "forbidden any one to enter on another's property without the leave of the owner;" if gaius after this will presume to take possession of the land, the _remedial_ part of the law will then interpose it's office; will make gaius restore the possession to titius, and also pay him damages for the invasion. with regard to the _sanction_ of laws, or the evil that may attend the breach of public duties; it is observed, that human legislators have for the most part chosen to make the sanction of their laws rather _vindicatory_ than _remuneratory_, or to consist rather in punishments, than in actual particular rewards. because, in the first place, the quiet enjoyment and protection of all our civil rights and liberties, which are the sure and general consequence of obedience to the municipal law, are in themselves the best and most valuable of all rewards. because also, were the exercise of every virtue to be enforced by the proposal of particular rewards, it were impossible for any state to furnish stock enough for so profuse a bounty. and farther, because the dread of evil is a much more forcible principle of human actions than the prospect of good[i]. for which reasons, though a prudent bestowing of rewards is sometimes of exquisite use, yet we find that those civil laws, which enforce and enjoin our duty, do seldom, if ever, propose any privilege or gift to such as obey the law; but do constantly come armed with a penalty denounced against transgressors, either expressly defining the nature and quantity of the punishment, or else leaving it to the discretion of the judges, and those who are entrusted with the care of putting the laws in execution. [footnote i: locke, hum. und. b. . c. .] of all the parts of a law the most effectual is the _vindicatory_. for it is but lost labour to say, "do this, or avoid that," unless we also declare, "this shall be the consequence of your noncompliance." we must therefore observe, that the main strength and force of a law consists in the penalty annexed to it. herein is to be found the principal obligation of human laws. legislators and their laws are said to _compel_ and _oblige_; not that by any natural violence they so constrain a man, as to render it impossible for him to act otherwise than as they direct, which is the strict sense of obligation: but because, by declaring and exhibiting a penalty against offenders, they bring it to pass that no man can easily choose to transgress the law; since, by reason of the impending correction, compliance is in a high degree preferable to disobedience. and, even where rewards are proposed as well as punishments threatened, the obligation of the law seems chiefly to consist in the penalty: for rewards, in their nature, can only _persuade_ and _allure_; nothing is _compulsory_ but punishment. it is held, it is true, and very justly, by the principal of our ethical writers, that human laws are binding upon mens consciences. but if that were the only, or most forcible obligation, the good only would regard the laws, and the bad would set them at defiance. and, true as this principle is, it must still be understood with some restriction. it holds, i apprehend, as to _rights_; and that, when the law has determined the field to belong to titius, it is matter of conscience no longer to withhold or to invade it. so also in regard to _natural duties_, and such offences as are _mala in se_: here we are bound in conscience, because we are bound by superior laws, before those human laws were in being, to perform the one and abstain from the other. but in relation to those laws which enjoin only _positive duties_, and forbid only such things as are not _mala in se_ but _mala prohibita_ merely, annexing a penalty to noncompliance, here i apprehend conscience is no farther concerned, than by directing a submission to the penalty, in case of our breach of those laws: for otherwise the multitude of penal laws in a state would not only be looked upon as an impolitic, but would also be a very wicked thing; if every such law were a snare for the conscience of the subject. but in these cases the alternative is offered to every man; "either abstain from this, or submit to such a penalty;" and his conscience will be clear, whichever side of the alternative he thinks proper to embrace. thus, by the statutes for preserving the game, a penalty is denounced against every unqualified person that kills a hare. now this prohibitory law does not make the transgression a moral offence: the only obligation in conscience is to submit to the penalty if levied. i have now gone through the definition laid down of a municipal law; and have shewn that it is "a rule--of civil conduct--prescribed--by the supreme power in a state--commanding what is right, and prohibiting what is wrong:" in the explication of which i have endeavoured to interweave a few useful principles, concerning the nature of civil government, and the obligation of human laws. before i conclude this section, it may not be amiss to add a few observations concerning the _interpretation_ of laws. when any doubt arose upon the construction of the roman laws, the usage was to state the case to the emperor in writing, and take his opinion upon it. this was certainly a bad method of interpretation. to interrogate the legislature to decide particular disputes, is not only endless, but affords great room for partiality and oppression. the answers of the emperor were called his rescripts, and these had in succeeding cases the force of perpetual laws; though they ought to be carefully distinguished, by every rational civilian, from those general constitutions, which had only the nature of things for their guide. the emperor macrinus, as his historian capitolinus informs us, had once resolved to abolish these rescripts, and retain only the general edicts; he could not bear that the hasty and crude answers of such princes as commodus and caracalla should be reverenced as laws. but justinian thought otherwise[k], and he has preserved them all. in like manner the canon laws, or decretal epistles of the popes, are all of them rescripts in the strictest sense. contrary to all true forms of reasoning, they argue from particulars to generals. [footnote k: _inst._ . . .] the fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by _signs_ the most natural and probable. and these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law. let us take a short view of them all. . words are generally to be understood in their usual and most known signification; not so much regarding the propriety of grammar, as their general and popular use. thus the law mentioned by puffendorf[l], which forbad a layman to _lay hands_ on a priest, was adjudged to extend to him, who had hurt a priest with a weapon. again; terms of art, or technical terms, must be taken according to the acceptation of the learned in each art, trade, and science. so in the act of settlement, where the crown of england is limited "to the princess sophia, and the heirs of her body, being protestants," it becomes necessary to call in the assistance of lawyers, to ascertain the precise idea of the words "_heirs of her body_;" which in a legal sense comprize only certain of her lineal descendants. lastly, where words are clearly _repugnant_ in two laws, the later law takes place of the elder: _leges posteriores priores contrarias abrogant_ is a maxim of universal law, as well as of our own constitutions. and accordingly it was laid down by a law of the twelve tables at rome, _quod populus postremum jussit, id jus ratum esto_. [footnote l: l. of n. and n. . . .] . if words happen to be still dubious, we may establish their meaning from the context; with which it may be of singular use to compare a word, or a sentence, whenever they are ambiguous, equivocal, or intricate. thus the proeme, or preamble, is often called in to help the construction of an act of parliament. of the same nature and use is the comparison of a law with other laws, that are made by the same legislator, that have some affinity with the subject, or that expressly relate to the same point. thus, when the law of england declares murder to be felony without benefit of clergy, we must resort to the same law of england to learn what the benefit of clergy is: and, when the common law censures simoniacal contracts, it affords great light to the subject to consider what the canon law has adjudged to be simony. . as to the subject matter, words are always to be understood as having a regard thereto; for that is always supposed to be in the eye of the legislator, and all his expressions directed to that end. thus, when a law of our edward iii. forbids all ecclesiastical persons to purchase _provisions_ at rome, it might seem to prohibit the buying of grain and other victual; but when we consider that the statute was made to repress the usurpations of the papal see, and that the nominations to vacant benefices by the pope were called _provisions_, we shall see that the restraint is intended to be laid upon such provisions only. . as to the effects and consequence, the rule is, where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them. therefore the bolognian law, mentioned by puffendorf[m], which enacted "that whoever drew blood in the streets should be punished with the utmost severity," was held after long debate not to extend to the surgeon, who opened the vein of a person that fell down in the street with a fit. [footnote m: _l._ . _c._ . §. .] . but, lastly, the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it. for when this reason ceases, the law itself ought likewise to cease with it. an instance of this is given in a case put by cicero, or whoever was the author of the rhetorical treatise inscribed to herennius[n]. there was a law, that those who in a storm forsook the ship should forfeit all property therein; and the ship and lading should belong entirely to those who staid in it. in a dangerous tempest all the mariners forsook the ship, except only one sick passenger, who by reason of his disease was unable to get out and escape. by chance the ship came safe to port. the sick man kept possession and claimed the benefit of the law. now here all the learned agree, that the sick man is not within the reason of the law; for the reason of making it was, to give encouragement to such as should venture their lives to save the vessel: but this is a merit, which he could never pretend to, who neither staid in the ship upon that account, nor contributed any thing to it's preservation. [footnote n: _l._ . _c._ .] from this method of interpreting laws, by the reason of them, arises what we call _equity_; which is thus defined by grotius[o], "the correction of that, wherein the law (by reason of its universality) is deficient." for since in laws all cases cannot be foreseen or expressed, it is necessary, that when the general decrees of the law come to be applied to particular cases, there should be somewhere a power vested of excepting those circumstances, which (had they been foreseen) the legislator himself would have excepted. and these are the cases, which, as grotius expresses it, "_lex non exacte definit, sed arbitrio boni viri permittit_." [footnote o: _de aequitate._] equity thus depending, essentially, upon the particular circumstances of each individual case, there can be no established rules and fixed precepts of equity laid down, without destroying it's very essence, and reducing it to a positive law. and, on the other hand, the liberty of considering all cases in an equitable light must not be indulged too far, lest thereby we destroy all law, and leave the decision of every question entirely in the breast of the judge. and law, without equity, tho' hard and disagreeable, is much more desirable for the public good, than equity without law; which would make every judge a legislator, and introduce most infinite confusion; as there would then be almost as many different rules of action laid down in our courts, as there are differences of capacity and sentiment in the human mind. section the third. of the laws of england. the municipal law of england, or the rule of civil conduct prescribed to the inhabitants of this kingdom, may with sufficient propriety be divided into two kinds; the _lex non scripta_, the unwritten, or common law; and the _lex scripta_, the written, or statute law. the _lex non scripta_, or unwritten law, includes not only _general customs_, or the common law properly so called; but also the _particular customs_ of certain parts of the kingdom; and likewise those _particular laws_, that are by custom observed only in certain courts and jurisdictions. when i call these parts of our law _leges non scriptae_, i would not be understood as if all those laws were at present merely _oral_, or communicated from the former ages to the present solely by word of mouth. it is true indeed that, in the profound ignorance of letters which formerly overspread the whole western world, all laws were intirely traditional, for this plain reason, that the nations among which they prevailed had but little idea of writing. thus the british as well as the gallic druids committed all their laws as well as learning to memory[a]; and it is said of the primitive saxons here, as well as their brethren on the continent, that _leges sola memoria et usu retinebant_[b]. but with us at present the monuments and evidences of our legal customs are contained in the records of the several courts of justice, in books of reports and judicial decisions, and in the treatises of learned sages of the profession, preserved and handed down to us from the times of highest antiquity. however i therefore stile these parts of our law _leges non scriptae_, because their original institution and authority are not set down in writing, as acts of parliament are, but they receive their binding power, and the force of laws, by long and immemorial usage, and by their universal reception throughout the kingdom. in like manner as aulus gellius defines the _jus non scriptum_ to be that, which is "_tacito et illiterato hominum consensu et moribus expressum_." [footnote a: _caes. de b. g._ _lib._ . _c._ .] [footnote b: spelm. gl. .] our antient lawyers, and particularly fortescue[c], insist with abundance of warmth, that these customs are as old as the primitive britons, and continued down, through the several mutations of government and inhabitants, to the present time, unchanged and unadulterated. this may be the case as to some; but in general, as mr selden in his notes observes, this assertion must be understood with many grains of allowance; and ought only to signify, as the truth seems to be, that there never was any formal exchange of one system of laws for another: though doubtless by the intermixture of adventitious nations, the romans, the picts, the saxons, the danes, and the normans, they must have insensibly introduced and incorporated many of their own customs with those that were before established: thereby in all probability improving the texture and wisdom of the whole, by the accumulated wisdom of divers particular countries. our laws, saith lord bacon[d], are mixed as our language: and as our language is so much the richer, the laws are the more complete. [footnote c: _c._ .] [footnote d: see his proposals for a digest.] and indeed our antiquarians and first historians do all positively assure us, that our body of laws is of this compounded nature. for they tell us, that in the time of alfred the local customs of the several provinces of the kingdom were grown so various, that he found it expedient to compile his _dome-book_ or _liber judicialis_, for the general use of the whole kingdom. this book is said to have been extant so late as the reign of king edward the fourth, but is now unfortunately lost. it contained, we may probably suppose, the principal maxims of the common law, the penalties for misdemesnors, and the forms of judicial proceedings. thus much may at least be collected from that injunction to observe it, which we find in the laws of king edward the elder, the son of alfred[e]. "_omnibus qui reipublicae praesunt, etiam atque etiam mando, ut omnibus aequos se praebeant judices, perinde ac in judiciali libro_ (_saxonice_, [anglo-saxon: dom-bec]) _scriptum habetur; nec quicquam formident quin jus commune_ (_saxonice_, [anglo-saxon: folcrihte]) _audacter libereque dicant._" [footnote e: _c._ .] but the irruption and establishment of the danes in england which followed soon after, introduced new customs and caused this code of alfred in many provinces to fall into disuse; or at least to be mixed and debased with other laws of a coarser alloy. so that about the beginning of the eleventh century there were three principal systems of laws prevailing in different districts. . the _mercen-lage_, or mercian laws, which were observed in many of the midland counties, and those bordering on the principality of wales; the retreat of the antient britons; and therefore very probably intermixed with the british or druidical customs. . the _west-saxon-lage_, or laws of the west saxons, which obtained in the counties to the south and west of the island, from kent to devonshire. these were probably much the same with the laws of alfred abovementioned, being the municipal law of the far most considerable part of his dominions, and particularly including berkshire, the seat of his peculiar residence. . the _dane-lage_, or danish law, the very name of which speaks it's original and composition. this was principally maintained in the rest of the midland counties, and also on the eastern coast, the seat of that piratical people. as for the very northern provinces, they were at that time under a distinct government[f]. [footnote f: hal. hist. .] out of these three laws, roger hoveden[g] and ranulphus cestrensis[h] inform us, king edward the confessor extracted one uniform law or digest of laws, to be observed throughout the whole kingdom; though hoveden and the author of an old manuscript chronicle[i] assure us likewise, that this work was projected and begun by his grandfather king edgar. and indeed a general digest of the same nature has been constantly found expedient, and therefore put in practice by other great nations, formed from an assemblage of little provinces, governed by peculiar customs. as in portugal, under king edward, about the beginning of the fifteenth century[k]. in spain under alonzo x, who about the year executed the plan of his father st. ferdinand, and collected all the provincial customs into one uniform law, in the celebrated code entitled _las partidas_[l]. and in sweden about the same aera, a universal body of common law was compiled out of the particular customs established by the laghman of every province, and intitled the _land's lagh_, being analogous to the _common law_ of england[m]. [footnote g: _in hen. ii._] [footnote h: _in edw. confessor._] [footnote i: _in seld. ad eadmer._ .] [footnote k: mod. un. hist. xxii. .] [footnote l: ibid. xx. .] [footnote m: ibid. xxxiii. , .] both these undertakings, of king edgar and edward the confessor, seem to have been no more than a new edition, or fresh promulgation, of alfred's code or dome-book, with such additions and improvements as the experience of a century and an half had suggested. for alfred is generally stiled by the same historians the _legum anglicanarum conditor_, as edward the confessor is the _restitutor_. these however are the laws which our histories so often mention under the name of the laws of edward the confessor; which our ancestors struggled so hardly to maintain, under the first princes of the norman line; and which subsequent princes so frequently promised to keep and to restore, as the most popular act they could do, when pressed by foreign emergencies or domestic discontents. these are the laws, that so vigorously withstood the repeated attacks of the civil law; which established in the twelfth century a new roman empire over most of the states on the continent: states that have lost, and perhaps upon that account, their political liberties; while the free constitution of england, perhaps upon the same account, has been rather improved than debased. these, in short, are the laws which gave rise and original to that collection of maxims and customs, which is now known by the name of the common law. a name either given to it, in contradistinction to other laws, as the statute law, the civil law, the law merchant, and the like; or, more probably, as a law _common_ to all the realm, the _jus commune_ or _folcright_ mentioned by king edward the elder, after the abolition of the several provincial customs and particular laws beforementioned. but though this is the most likely foundation of this collection of maxims and customs, yet the maxims and customs, so collected, are of higher antiquity than memory or history can reach: nothing being more difficult than to ascertain the precise beginning and first spring of an antient and long established custom. whence it is that in our law the goodness of a custom depends upon it's having been used time out of mind; or, in the solemnity of our legal phrase, time whereof the memory of man runneth not to the contrary. this it is that gives it it's weight and authority; and of this nature are the maxims and customs which compose the common law, or _lex non scripta_, of this kingdom. this unwritten, or common, law is properly distinguishable into three kinds: . general customs; which are the universal rule of the whole kingdom, and form the common law, in it's stricter and more usual signification. . particular customs; which for the most part affect only the inhabitants of particular districts. . certain particular laws; which by custom are adopted and used by some particular courts, of pretty general and extensive jurisdiction. i. as to general customs, or the common law, properly so called; this is that law, by which proceedings and determinations in the king's ordinary courts of justice are guided and directed. this, for the most part, settles the course in which lands descend by inheritance; the manner and form of acquiring and transferring property; the solemnities and obligation of contracts; the rules of expounding wills, deeds, and acts of parliament; the respective remedies of civil injuries; the several species of temporal offences, with the manner and degree of punishment; and an infinite number of minuter particulars, which diffuse themselves as extensively as the ordinary distribution of common justice requires. thus, for example, that there shall be four superior courts of record, the chancery, the king's bench, the common pleas, and the exchequer;--that the eldest son alone is heir to his ancestor;--that property may be acquired and transferred by writing;--that a deed is of no validity unless sealed;--that wills shall be construed more favorably, and deeds more strictly;--that money lent upon bond is recoverable by action of debt;--that breaking the public peace is an offence, and punishable by fine and imprisonment;--all these are doctrines that are not set down in any written statute or ordinance, but depend merely upon immemorial usage, that is, upon common law, for their support. some have divided the common law into two principal grounds or foundations: . established customs; such as that where there are three brothers, the eldest brother shall be heir to the second, in exclusion of the youngest: and . established rules and maxims; as, "that the king can do no wrong, that no man shall be bound to accuse himself," and the like. but i take these to be one and the same thing. for the authority of these maxims rests entirely upon general reception and usage; and the only method of proving, that this or that maxim is a rule of the common law, is by shewing that it hath been always the custom to observe it. but here a very natural, and very material, question arises: how are these customs or maxims to be known, and by whom is their validity to be determined? the answer is, by the judges in the several courts of justice. they are the depositary of the laws; the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land. their knowlege of that law is derived from experience and study; from the "_viginti annorum lucubrationes_," which fortescue[n] mentions; and from being long personally accustomed to the judicial decisions of their predecessors. and indeed these judicial decisions are the principal and most authoritative evidence, that can be given, of the existence of such a custom as shall form a part of the common law. the judgment itself, and all the proceedings previous thereto, are carefully registered and preserved, under the name of _records_, in publick repositories set apart for that particular purpose; and to them frequent recourse is had, when any critical question arises, in the determination of which former precedents may give light or assistance. and therefore, even so early as the conquest, we find the "_praeteritorum memoria eventorum_" reckoned up as one of the chief qualifications of those who were held to be "_legibus patriae optime instituti_[o]." for it is an established rule to abide by former precedents, where the same points come again in litigation; as well to keep the scale of justice even and steady, and not liable to waver with every new judge's opinion; as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from, according to his private sentiments: he being sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one. yet this rule admits of exception, where the former determination is most evidently contrary to reason; much more if it be contrary to the divine law. but even in such cases the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation. for if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was _bad law_, but that it was _not law_; that is, that it is not the established custom of the realm, as has been erroneously determined. and hence it is that our lawyers are with justice so copious in their encomiums on the reason of the common law; that they tell us, that the law is the perfection of reason, that it always intends to conform thereto, and that what is not reason is not law. not that the particular reason of every rule in the law can at this distance of time be always precisely assigned; but it is sufficient that there be nothing in the rule flatly contradictory to reason, and then the law will presume it to be well founded[p]. and it hath been an antient observation in the laws of england, that whenever a standing rule of law, of which the reason perhaps could not be remembered or discerned, hath been wantonly broke in upon by statutes or new resolutions, the wisdom of the rule hath in the end appeared from the inconveniences that have followed the innovation. [footnote n: _cap._ .] [footnote o: seld. review of tith. c. .] [footnote p: herein agreeing with the civil law, _ff._ . . , . "_non omnium, quae a majoribus nostris constituta sunt, ratio reddi potest. et ideo rationes eorum quae constituuntur, inquiri non oportet: alioquin multa ex his, quae certa sunt, subvertuntur._"] the doctrine of the law then is this: that precedents and rules must be followed, unless flatly absurd or unjust: for though their reason be not obvious at first view, yet we owe such a deference to former times as not to suppose they acted wholly without consideration. to illustrate this doctrine by examples. it has been determined, time out of mind, that a brother of the half blood (i.e. where they have only one parent the same, and the other different) shall never succeed as heir to the estate of his half brother, but it shall rather escheat to the king, or other superior lord. now this is a positive law, fixed and established by custom, which custom is evidenced by judicial decisions; and therefore can never be departed from by any modern judge without a breach of his oath and the law. for herein there is nothing repugnant to natural justice; though the reason of it, drawn from the feodal law, may not be quite obvious to every body. and therefore, on account of a supposed hardship upon the half brother, a modern judge might wish it had been otherwise settled; yet it is not in his power to alter it. but if any court were now to determine, that an elder brother of the half blood might enter upon and seise any lands that were purchased by his younger brother, no subsequent judges would scruple to declare that such prior determination was unjust, was unreasonable, and therefore was _not law_. so that _the law_, and the _opinion of the judge_ are not always convertible terms, or one and the same thing; since it sometimes may happen that the judge may _mistake_ the law. upon the whole however, we may take it as a general rule, "that the decisions of courts of justice are the evidence of what is common law:" in the same manner as, in the civil law, what the emperor had once determined was to serve for a guide for the future[q]. [footnote q: "_si imperialis majestas causam cognitionaliter examinaverit, et partibus cominus constitutis sententiam dixerit, omnes omnino judices, qui sub nostro imperio sunt, sciant hanc esse legem, non solum illi causae pro qua producta est, sed et in omnibus similibus._" _c._ . . .] the decisions therefore of courts are held in the highest regard, and are not only preserved as authentic records in the treasuries of the several courts, but are handed out to public view in the numerous volumes of _reports_ which furnish the lawyer's library. these reports are histories of the several cases, with a short summary of the proceedings, which are preserved at large in the record; the arguments on both sides; and the reasons the court gave for their judgment; taken down in short notes by persons present at the determination. and these serve as indexes to, and also to explain, the records; which always, in matters of consequence and nicety, the judges direct to be searched. the reports are extant in a regular series from the reign of king edward the second inclusive; and from his time to that of henry the eighth were taken by the prothonotaries, or chief scribes of the court, at the expence of the crown, and published _annually_, whence they are known under the denomination of the _year books_. and it is much to be wished that this beneficial custom had, under proper regulations, been continued to this day: for, though king james the first at the instance of lord bacon appointed two reporters with a handsome stipend for this purpose, yet that wise institution was soon neglected, and from the reign of henry the eighth to the present time this task has been executed by many private and cotemporary hands; who sometimes through haste and inaccuracy, sometimes through mistake and want of skill, have published very crude and imperfect (perhaps contradictory) accounts of one and the same determination. some of the most valuable of the antient reports are those published by lord chief justice coke; a man of infinite learning in his profession, though not a little infected with the pedantry and quaintness of the times he lived in, which appear strongly in all his works. however his writings are so highly esteemed, that they are generally cited without the author's name[r]. [footnote r: his reports, for instance, are stiled, [greek: kat' exochên], _the reports_; and in quoting them we usually say, or rep. not or coke's rep. as in citing other authors. the reports of judge croke are also cited in a peculiar manner, by the name of those princes, in whose reigns the cases reported in his three volumes were determined; viz. qu. elizabeth, k. james, and k. charles the first; as well as by the number of each volume. for sometimes we call them, , , and cro. but more commonly cro. eliz. cro. jac. and cro. car.] besides these reporters, there are also other authors, to whom great veneration and respect is paid by the students of the common law. such are glanvil and bracton, britton and fleta, littleton and fitzherbert, with some others of antient date, whose treatises are cited as authority; and are evidence that cases have formerly happened in which such and such points were determined, which are now become settled and first principles. one of the last of these methodical writers in point of time, whose works are of any intrinsic authority in the courts of justice, and do not entirely depend on the strength of their quotations from older authors, is the same learned judge we have just mentioned, sir edward coke; who hath written four volumes of institutes, as he is pleased to call them, though they have little of the institutional method to warrant such a title. the first volume is a very extensive comment upon a little excellent treatise of tenures, compiled by judge littleton in the reign of edward the fourth. this comment is a rich mine of valuable common law learning, collected and heaped together from the antient reports and year books, but greatly defective in method[s]. the second volume is a comment upon many old acts of parliament, without any systematical order; the third a more methodical treatise of the pleas of the crown; and the fourth an account of the several species of courts[t]. [footnote s: it is usually cited either by the name of co. litt. or as inst.] [footnote t: these are cited as , , or inst. without any author's name. an honorary distinction, which, we observed, was paid to the works of no other writer; the generality of reports and other tracts being quoted in the name of the compiler, as ventris, leonard, siderfin, and the like.] and thus much for the first ground and chief corner stone of the laws of england, which is, general immemorial custom, or common law, from time to time declared in the decisions of the courts of justice; which decisions are preserved among our public records, explained in our reports, and digested for general use in the authoritative writings of the venerable sages of the law. the roman law, as practised in the times of it's liberty, paid also a great regard to custom; but not so much as our law: it only then adopting it, when the written law is deficient. though the reasons alleged in the digest[u] will fully justify our practice, in making it of equal authority with, when it is not contradicted by, the written law. "for since, says julianus, the written law binds us for no other reason but because it is approved by the judgment of the people, therefore those laws which the people hath approved without writing ought also to bind every body. for where is the difference, whether the people declare their assent to a law by suffrage, or by a uniform course of acting accordingly?" thus did they reason while rome had some remains of her freedom; but when the imperial tyranny came to be fully established, the civil laws speak a very different language. "_quod principi placuit legis habet vigorem, cum populus ei et in eum omne suum imperium et potestatem conferat_," says ulpian[w]. "_imperator solus et conditor et interpres legis existimatur_," says the code[x]. and again, "_sacrilegii instar est rescripto principis obviare_[y]." and indeed it is one of the characteristic marks of english liberty, that our common law depends upon custom; which carries this internal evidence of freedom along with it, that it probably was introduced by the voluntary consent of the people. [footnote u: _ff._ . . .] [footnote w: _ff._ . . .] [footnote x: _c._ . . .] [footnote y: _c._ . . .] ii. the second branch of the unwritten laws of england are particular customs, or laws which affect only the inhabitants of particular districts. these particular customs, or some of them, are without doubt the remains of that multitude of local customs before mentioned, out of which the common law, as it now stands, was collected at first by king alfred, and afterwards by king edgar and edward the confessor: each district mutually sacrificing some of it's own special usages, in order that the whole kingdom might enjoy the benefit of one uniform and universal system of laws. but, for reasons that have been now long forgotten, particular counties, cities, towns, manors, and lordships, were very early indulged with the privilege of abiding by their own customs, in contradistinction to the rest of the nation at large: which privilege is confirmed to them by several acts of parliament[z]. [footnote z: mag. cart. c. .-- edw. iii. st. . c. .-- edw. iii. st. . c. .--and hen. iv. c. .] such is the custom of gavelkind in kent and some other parts of the kingdom (though perhaps it was also general till the norman conquest) which ordains, among other things, that not the eldest son only of the father shall succeed to his inheritance, but all the sons alike: and that, though the ancestor be attainted and hanged, yet the heir shall succeed to his estate, without any escheat to the lord.--such is the custom that prevails in divers antient boroughs, and therefore called borough-english, that the youngest son shall inherit the estate, in preference to all his elder brothers.--such is the custom in other boroughs that a widow shall be intitled, for her dower, to all her husband's lands; whereas at the common law she shall be endowed of one third part only.--such also are the special and particular customs of manors, of which every one has more or less, and which bind all the copyhold-tenants that hold of the said manors.--such likewise is the custom of holding divers inferior courts, with power of trying causes, in cities and trading towns; the right of holding which, when no royal grant can be shewn, depends entirely upon immemorial and established usage.--such, lastly, are many particular customs within the city of london, with regard to trade, apprentices, widows, orphans, and a variety of other matters; which are all contrary to the general law of the land, and are good only by special custom, though those of london are also confirmed by act of parliament[a]. [footnote a: rep. . cro. car. .] to this head may most properly be referred a particular system of customs used only among one set of the king's subjects, called the custom of merchants or _lex mercatoria_; which, however different from the common law, is allowed for the benefit of trade, to be of the utmost validity in all commercial transactions; the maxim of law being, that "_cuilibet in sua arte credendum est_." the rules relating to particular customs regard either the proof of their existence; their legality when proved; or their usual method of allowance. and first we will consider the rules of proof. as to gavelkind, and borough-english, the law takes particular notice of them[b], and there is no occasion to prove that such customs actually exist, but only that the lands in question are subject thereto. all other private customs must be particularly pleaded[c], and as well the existence of such customs must be shewn, as that the thing in dispute is within the custom alleged. the trial in both cases (both to shew the existence of the custom, as, "that in the manor of dale lands shall descend only to the heirs male, and never to the heirs female;" and also to shew that the lands in question are within that manor) is by a jury of twelve men, and not by the judges, except the same particular custom has been before tried, determined, and recorded in the same court[d]. [footnote b: co. litt. _b._] [footnote c: litt. §. .] [footnote d: dr and st. . .] the customs of london differ from all others in point of trial: for, if the existence of the custom be brought in question, it shall not be tried by a jury, but by certificate from the lord mayor and aldermen by the mouth of their recorder[e]; unless it be such a custom as the corporation is itself interested in, as a right of taking toll, &c, for then the law permits them not to certify on their own behalf[f]. [footnote e: cro. car. .] [footnote f: hob. .] when a custom is actually proved to exist, the next enquiry is into the legality of it; for if it is not a good custom it ought to be no longer used. "_malus usus abolendus est_" is an established maxim of the law[g]. to make a particular custom good, the following are necessary requisites. [footnote g: litt. §. . inst. .] . that it have been used so long, that the memory of man runneth not to the contrary. so that if any one can shew the beginning of it, it is no good custom. for which reason no custom can prevail against an express act of parliament; since the statute itself is a proof of a time when such a custom did not exist[h]. [footnote h: co. litt. _b._] . it must have been _continued_. any interruption would cause a temporary ceasing: the revival gives it a new beginning, which will be within time of memory, and thereupon the custom will be void. but this must be understood with regard to an interruption of the _right_; for an interruption of the _possession_ only, for ten or twenty years, will not destroy the custom[i]. as if i have a right of way by custom over another's field, the custom is not destroyed, though i do not pass over it for ten years; it only becomes more difficult to prove: but if the _right_ be any how discontinued for a day, the custom is quite at an end. [footnote i: co. litt. _b._] . it must have been _peaceable_, and acquiesced in; not subject to contention and dispute[k]. for as customs owe their original to common consent, their being immemorially disputed either at law or otherwise is a proof that such consent was wanting. [footnote k: co. litt. .] . customs must be _reasonable_[l]; or rather, taken negatively, they must not be unreasonable. which is not always, as sir edward coke says[m], to be understood of every unlearned man's reason, but of artificial and legal reason, warranted by authority of law. upon which account a custom may be good, though the particular reason of it cannot be assigned; for it sufficeth, if no good legal reason can be assigned against it. thus a custom in a parish, that no man shall put his beasts into the common till the third of october, would be good; and yet it would be hard to shew the reason why that day in particular is fixed upon, rather than the day before or after. but a custom that no cattle shall be put in till the lord of the manor has first put in his, is unreasonable, and therefore bad: for peradventure the lord will never put in his; and then the tenants will lose all their profits[n]. [footnote l: litt. §. .] [footnote m: inst. .] [footnote n: co. copyh. §. .] . customs ought to be _certain_. a custom, that lands shall descend to the most worthy of the owner's blood, is void; for how shall this worth be determined? but a custom to descend to the next male of the blood, exclusive of females, is certain, and therefore good[o]. a custom, to pay two pence an acre in lieu of tythes, is good; but to pay sometimes two pence and sometimes three pence, as the occupier of the land pleases, is bad for it's uncertainty. yet a custom, to pay a year's improved value for a fine on a copyhold estate, is good: though the value is a thing uncertain. for the value may at any time be ascertained; and the maxim of law is, _id certum est, quod certum reddi potest_. [footnote o: roll. abr. .] . customs, though established by consent, must be (when established) _compulsory_; and not left to the option of every man, whether he will use them or no. therefore a custom, that all the inhabitants shall be rated toward the maintenance of a bridge, will be good; but a custom, that every man is to contribute thereto at his own pleasure, is idle and absurd, and, indeed, no custom at all. . lastly, customs must be _consistent_ with each other: one custom cannot be set up in opposition to another. for if both are really customs, then both are of equal antiquity, and both established by mutual consent: which to say of contradictory customs is absurd. therefore, if one man prescribes that by custom he has a right to have windows looking into another's garden; the other cannot claim a right by custom to stop up or obstruct those windows: for these two contradictory customs cannot both be good, nor both stand together. he ought rather to deny the existence of the former custom[p]. [footnote p: rep. .] next, as to the allowance of special customs. customs, in derogation of the common law, must be construed strictly. thus, by the custom of gavelkind, an infant of fifteen years may by one species of conveyance (called a deed of feoffment) convey away his lands in fee simple, or for ever. yet this custom does not impower him to use any other conveyance, or even to lease them for seven years: for the custom must be strictly pursued[q]. and, moreover, all special customs must submit to the king's prerogative. therefore, if the king purchases lands of the nature of gavelkind, where all the sons inherit equally; yet, upon the king's demise, his eldest son shall succeed to those lands alone[r]. and thus much for the second part of the _leges non scriptae_, or those particular customs which affect particular persons or districts only. [footnote q: co. cop. §. .] [footnote r: co. litt. _b._] iii. the third branch of them are those peculiar laws, which by custom are adopted and used only in certain peculiar courts and jurisdictions. and by these i understand the civil and canon laws. it may seem a little improper at first view to rank these laws under the head of _leges non scriptae_, or unwritten laws, seeing they are set forth by authority in their pandects, their codes, and their institutions; their councils, decrees, and decretals; and enforced by an immense number of expositions, decisions, and treatises of the learned in both branches of the law. but i do this, after the example of sir matthew hale[s], because it is most plain, that it is not on account of their being _written_ laws, that either the canon law, or the civil law, have any obligation within this kingdom; neither do their force and efficacy depend upon their own intrinsic authority; which is the case of our written laws, or acts of parliament. they bind not the subjects of england, because their materials were collected from popes or emperors; were digested by justinian, or declared to be authentic by gregory. these considerations give them no authority here: for the legislature of england doth not, nor ever did, recognize any foreign power, as superior or equal to it in this kingdom; or as having the right to give law to any, the meanest, of it's subjects. but all the strength that either the papal or imperial laws have obtained in this realm, or indeed in any other kingdom in europe, is only because they have been admitted and received by immemorial usage and custom in some particular cases, and some particular courts; and then they form a branch of the _leges non scriptae_, or customary law: or else, because they are in some other cases introduced by consent of parliament, and then they owe their validity to the _leges scriptae_, or statute law. this is expressly declared in those remarkable words of the statute hen. viii. c. . addressed to the king's royal majesty.--"this your grace's realm, recognizing no superior under god but only your grace, hath been and is free from subjection to any man's laws, but only to such as have been devised, made, and ordained _within_ this realm for the wealth of the same; or to such other, as by sufferance of your grace and your progenitors, the people of this your realm, have taken at their free liberty, by their own consent, to be used among them; and have bound themselves by long use and custom to the observance of the same: not as to the observance of the laws of any foreign prince, potentate, or prelate; but as to the _customed_ and antient laws of this realm, originally established as laws of the same, by the said sufferance, consents, and custom; and none otherwise." [footnote s: hist. c.l. c. .] by the civil law, absolutely taken, is generally understood the civil or municipal law of the roman empire, as comprized in the institutes, the code, and the digest of the emperor justinian, and the novel constitutions of himself and some of his successors. of which, as there will frequently be occasion to cite them, by way of illustrating our own laws, it may not be amiss to give a short and general account. the roman law (founded first upon the regal constitutions of their antient kings, next upon the twelve tables of the _decemviri_, then upon the laws or statutes enacted by the senate or people, the edicts of the praetor, and the _responsa prudentum_ or opinions of learned lawyers, and lastly upon the imperial decrees, or constitutions of successive emperors) had grown to so great a bulk, or as livy expresses it[t], "_tam immensus aliarum super alias acervatarum legum cumulus_," that they were computed to be many camels' load by an author who preceded justinian[u]. this was in part remedied by the collections of three private lawyers, gregorius, hermogenes, and papirius; and then by the emperor theodosius the younger, by whose orders a code was compiled, _a.d._ , being a methodical collection of all the imperial constitutions then in force: which theodosian code was the only book of civil law received as authentic in the western part of europe till many centuries after; and to this it is probable that the franks and goths might frequently pay some regard, in framing legal constitutions for their newly erected kingdoms. for justinian commanded only in the eastern remains of the empire; and it was under his auspices, that the present body of civil law was compiled and finished by tribonian and other lawyers, about the year . [footnote t: _l._ . _c._ .] [footnote u: taylor's elements of civil law. .] this consists of, . the institutes, which contain the elements or first principles of the roman law, in four books. . the digests, or pandects, in fifty books, containing the opinions and writings of eminent lawyers, digested in a systematical method. . a new code, or collection of imperial constitutions, the lapse of a whole century having rendered the former code, of theodosius, imperfect. . the novels, or new constitutions, posterior in time to the other books, and amounting to a supplement to the code; containing new decrees of successive emperors, as new questions happened to arise. these form the body of roman law, or _corpus juris civilis_, as published about the time of justinian: which however fell soon into neglect and oblivion, till about the year , when a copy of the digests was found at amalfi in italy; which accident, concurring with the policy of the romish ecclesiastics[w], suddenly gave new vogue and authority to the civil law, introduced it into several nations, and occasioned that mighty inundation of voluminous comments, with which this system of law, more than any other, is now loaded. [footnote w: see §. . pag. .] the canon law is a body of roman ecclesiastical law, relative to such matters as that church either has, or pretends to have, the proper jurisdiction over. this is compiled from the opinions of the antient latin fathers, the decrees of general councils, the decretal epistles and bulles of the holy see. all which lay in the same disorder and confusion as the roman civil law, till about the year , one gratian an italian monk, animated by the discovery of justinian's pandects at amalfi, reduced them into some method in three books, which he entitled _concordia discordantium canonum_, but which are generally known by the name of _decretum gratiani_. these reached as low as the time of pope alexander iii. the subsequent papal decrees, to the pontificate of gregory ix, were published in much the same method under the auspices of that pope, about the year , in five books entitled _decretalia gregorii noni_. a sixth book was added by boniface viii, about the year , which is called _sextus decretalium_. the clementine constitutions, or decrees of clement v, were in like manner authenticated in by his successor john xxii; who also published twenty constitutions of his own, called the _extravagantes joannis_: all which in some measure answer to the novels of the civil law. to these have been since added some decrees of later popes in five books, called _extravagantes communes_. and all these together, gratian's decree, gregory's decretals, the sixth decretal, the clementine constitutions, and the extravagants of john and his successors, form the _corpus juris canonici_, or body of the roman canon law. besides these pontificial collections, which during the times of popery were received as authentic in this island, as well as in other parts of christendom, there is also a kind of national canon law, composed of _legatine_ and _provincial_ constitutions, and adapted only to the exigencies of this church and kingdom. the _legatine_ constitutions were ecclesiastical laws, enacted in national synods, held under the cardinals otho and othobon, legates from pope gregory ix and pope adrian iv, in the reign of king henry iii about the years and . the _provincial_ constitutions are principally the decrees of provincial synods, held under divers arch-bishops of canterbury, from stephen langton in the reign of henry iii to henry chichele in the reign of henry v; and adopted also by the province of york[x] in the reign of henry vi. at the dawn of the reformation, in the reign of king henry viii, it was enacted in parliament[y] that a review should be had of the canon law; and, till such review should be made, all canons, constitutions, ordinances, and synodals provincial, being then already made, and not repugnant to the law of the land or the king's prerogative, should still be used and executed. and, as no such review has yet been perfected, upon this statute now depends the authority of the canon law in england. [footnote x: burn's eccl. law, pref. viii.] [footnote y: statute hen. viii. c. ; revived and confirmed by eliz. c. .] as for the canons enacted by the clergy under james i, in the year , and never confirmed in parliament, it has been solemnly adjudged upon the principles of law and the constitution, that where they are not merely declaratory of the antient canon law, but are introductory of new regulations, they do not bind the laity[z]; whatever regard the clergy may think proper to pay them. [footnote z: stra. .] there are four species of courts in which the civil and canon laws are permitted under different restrictions to be used. . the courts of the arch-bishops and bishops and their derivative officers, usually called in our law courts christian, _curiae christianitatis_, or the ecclesiastical courts. . the military courts. . the courts of admiralty. . the courts of the two universities. in all, their reception in general, and the different degrees of that reception, are grounded intirely upon custom; corroborated in the latter instance by act of parliament, ratifying those charters which confirm the customary law of the universities. the more minute consideration of these will fall properly under that part of these commentaries which treats of the jurisdiction of courts. it will suffice at present to remark a few particulars relative to them all, which may serve to inculcate more strongly the doctrine laid down concerning them[a]. [footnote a: hale hist. c. .] . and, first, the courts of common law have the superintendency over these courts; to keep them within their jurisdictions, to determine wherein they exceed them, to restrain and prohibit such excess, and (in case of contumacy) to punish the officer who executes, and in some cases the judge who enforces, the sentence so declared to be illegal. . the common law has reserved to itself the exposition of all such acts of parliament, as concern either the extent of these courts or the matters depending before them. and therefore if these courts either refuse to allow these acts of parliament, or will expound them in any other sense than what the common law puts upon them, the king's courts at westminster will grant prohibitions to restrain and control them. . an appeal lies from all these courts to the king, in the last resort; which proves that the jurisdiction exercised in them is derived from the crown of england, and not from any foreign potentate, or intrinsic authority of their own.--and, from these three strong marks and ensigns of superiority, it appears beyond a doubt that the civil and canon laws, though admitted in some cases by custom in some courts, are only subordinate and _leges sub graviori lege_; and that, thus admitted, restrained, altered, new-modelled, and amended, they are by no means with us a distinct independent species of laws, but are inferior branches of the customary or unwritten laws of england, properly called, the king's ecclesiastical, the king's military, the king's maritime, or the king's academical, laws. let us next proceed to the _leges scriptae_, the written laws of the kingdom, which are statutes, acts, or edicts, made by the king's majesty by and with the advice and content of the lords spiritual and temporal and commons in parliament assembled[b]. the oldest of these now extant, and printed in our statute books, is the famous _magna carta_, as confirmed in parliament hen. iii: though doubtless there were many acts before that time, the records of which are now lost, and the determinations of them perhaps at present currently received for the maxims of the old common law. [footnote b: rep. .] the manner of making these statutes will be better considered hereafter, when we examine the constitution of parliaments. at present we will only take notice of the different kinds of statutes; and of some general rules with regard to their construction[c]. [footnote c: the method of citing these acts of parliament is various. many of our antient statutes are called after the name of the place, where the parliament was held that made them: as the statutes of merton and marlbridge, of westminster, glocester, and winchester. others are denominated entirely from their subject; as the statutes of wales and ireland, the _articuli cleri_, and the _praerogativa regis_. some are distinguished by their initial words, a method of citing very antient; being used by the jews in denominating the books of the pentateuch; by the christian church in distinguishing their hymns and divine offices; by the romanists in describing their papal bulles; and in short by the whole body of antient civilians and canonists, among whom this method of citation generally prevailed, not only with regard to chapters, but inferior sections also: in imitation of all which we still call some of our old statutes by their initial words, as the statute of _quia emptores_, and that of _circumspecte agatis_. but the most usual method of citing them, especially since the time of edward the second, is by naming the year of the king's reign in which the statute was made, together with the chapter, or particular act, according to it's numeral order; as, geo. ii. c. . for all the acts of one session of parliament taken together make properly but one statute; and therefore when two sessions have been held in one year, we usually mention stat. . or . thus the bill of rights is cited, as w. & m. st. . c. . signifying that it is the second chapter or act, of the second statute or the laws made in the second sessions of parliament, held in the first year of king william and queen mary.] first, as to their several kinds. statutes are either _general_ or _special_, _public_ or _private_. a general or public act is an universal rule, that regards the whole community; and of these the courts of law are bound to take notice judicially and _ex officio_; without the statute being particularly pleaded, or formally set forth by the party who claims an advantage under it. special or private acts are rather exceptions than rules, being those which only operate upon particular persons, and private concerns; such as the romans intitled _senatus-decreta_, in contradistinction to the _senatus-consulta_, which regarded the whole community[d]: and of these the judges are not bound to take notice, unless they be formally shewn and pleaded. thus, to shew the distinction, the statute eliz. c. . to prevent spiritual persons from making leases for longer terms than twenty one years, or three lives, is a public act; it being a rule prescribed to the whole body of spiritual persons in the nation: but an act to enable the bishop of chester to make a lease to a.b. for sixty years, is an exception to this rule; it concerns only the parties and the bishop's successors; and is therefore a private act. [footnote d: gravin. _orig._ . §. .] statutes also are either _declaratory_ of the common law, or _remedial_ of some defects therein. declaratory, where the old custom of the kingdom is almost fallen into disuse, or become disputable; in which case the parliament has thought proper, _in perpetuum rei testimonium_, and for avoiding all doubts and difficulties, to declare what the common law is and ever hath been. thus the statute of treasons, edw. iii. cap. . doth not make any new species of treasons; but only, for the benefit of the subject, declares and enumerates those several kinds of offence, which before were treason at the common law. remedial statutes are those which are made to supply such defects, and abridge such superfluities, in the common law, as arise either from the general imperfection of all human laws, from change of time and circumstances, from the mistakes and unadvised determinations of unlearned judges, or from any other cause whatsoever. and, this being done either by enlarging the common law where it was too narrow and circumscribed, or by restraining it where it was too lax and luxuriant, this has occasioned another subordinate division of remedial acts of parliament into _enlarging_ and _restraining_ statutes. to instance again in the case of treason. clipping the current coin of the kingdom was an offence not sufficiently guarded against by the common law: therefore it was thought expedient by statute eliz. c. . to make it high treason, which it was not at the common law: so that this was an _enlarging_ statute. at common law also spiritual corporations might lease out their estates for any term of years, till prevented by the statute eliz. beforementioned: this was therefore a _restraining_ statute. secondly, the rules to be observed with regard to the construction of statutes are principally these which follow. . there are three points to be considered in the construction of all remedial statutes; the old law, the mischief, and the remedy: that is, how the common law stood at the making of the act; what the mischief was, for which the common law did not provide; and what remedy the parliament hath provided to cure this mischief. and it is the business of the judges so to construe the act, as to suppress the mischief and advance the remedy[e]. let us instance again in the same restraining statute of the eliz. by the common law ecclesiastical corporations might let as long leases as they thought proper: the mischief was, that they let long and unreasonable leases, to the impoverishment of their successors: the remedy applied by the statute was by making void all leases by ecclesiastical bodies for longer terms than three lives or twenty one years. now in the construction of this statute it is held, that leases, though for a longer term, if made by a bishop, are not void during the bishop's life; or, if made by a dean with concurrence of his chapter, they are not void during the life of the dean: for the act was made for the benefit and protection of the successor[f]. the mischief is therefore sufficiently suppressed by vacating them after the death of the grantor; but the leases, during their lives, being not within the mischief, are not within the remedy. [footnote e: rep. _b._ co. litt. _b._ .] [footnote f: co. litt. . rep. .] . a statute, which treats of things or persons of an inferior rank, cannot by any _general words_ be extended to those of a superior. so a statute, treating of "deans, prebendaries, parsons, vicars, _and others having spiritual promotion_," is held not to extend to bishops, though they have spiritual promotion; deans being the highest persons named, and bishops being of a still higher order[g]. [footnote g: rep. .] . penal statutes must be construed strictly. thus a statute edw. vi. having enacted that those who are convicted of stealing _horses_ should not have the benefit of clergy, the judges conceived that this did not extend to him that should steal but _one horse_, and therefore procured a new act for that purpose in the following year[h]. and, to come nearer our own times, by the statute geo. ii. c. . stealing sheep, _or other cattle_, was made felony without benefit of clergy. but these general words, "or other cattle," being looked upon as much too loose to create a capital offence, the act was held to extend to nothing but mere sheep. and therefore, in the next sessions, it was found necessary to make another statute, geo. ii. c. . extending the former to bulls, cows, oxen, steers, bullocks, heifers, calves, and lambs, by name. [footnote h: bac. elem. c. .] . statutes against frauds are to be liberally and beneficially expounded. this may seem a contradiction to the last rule; most statutes against frauds being in their consequences penal. but this difference is here to be taken: where the statute acts upon the offender, and inflicts a penalty, as the pillory or a fine, it is then to be taken strictly: but when the statute acts upon the offence, by setting aside the fraudulent transaction, here it is to be construed liberally. upon this footing the statute of eliz. c. . which avoids all gifts of goods, &c, made to defraud creditors _and others_, was held to extend by the general words to a gift made to defraud the queen of a forfeiture[i]. [footnote i: rep. .] . one part of a statute must be so construed by another, that the whole may if possible stand: _ut res magis valeat, quam pereat_. as if land be vested in the king and his heirs by act of parliament, saving the right of a; and a has at that time a lease of it for three years: here a shall hold it for his term of three years, and afterwards it shall go to the king. for this interpretation furnishes matter for every clause of the statute to work and operate upon. but . a saving, totally repugnant to the body of the act, is void. if therefore an act of parliament vests land in the king and his heirs, saving the right of all persons whatsoever; or vests the land of a in the king, saving the right of a: in either of these cases the saving is totally repugnant to the body of the statute, and (if good) would render the statute of no effect or operation; and therefore the saving is void, and the land vests absolutely in the king[k]. [footnote k: rep. .] . where the common law and a statute differ, the common law gives place to the statute; and an old statute gives place to a new one. and this upon the general principle laid down in the last section, that "_leges posteriores priores contrarias abrogant_." but this is to be understood, only when the latter statute is couched in negative terms, or by it's matter necessarily implies a negative. as if a former act says, that a juror upon such a trial shall have twenty pounds a year; and a new statute comes and says, he shall have twenty marks: here the latter statute, though it does not express, yet necessarily implies a negative, and virtually repeals the former. for if twenty marks be made qualification sufficient, the former statute which requires twenty pounds is at an end[l]. but if both acts be merely affirmative, and the substance such that both may stand together, here the latter does not repeal the former, but they shall both have a concurrent efficacy. if by a former law an offence be indictable at the quarter sessions, and a latter law makes the same offence indictable at the assises; here the jurisdiction of the sessions is not taken away, but both have a concurrent jurisdiction, and the offender may be prosecuted at either; unless the new statute subjoins express negative words, as, that the offence shall be indictable at the assises, _and not elsewhere_[m]. [footnote l: jenk. cent. . .] [footnote m: rep. .] . if a statute, that repeals another, is itself repealed afterwards, the first statute is hereby revived, without any formal words for that purpose. so when the statutes of and hen. viii, declaring the king to be the supreme head of the church, were repealed by a statute & ph. and mary, and this latter statute was afterwards repealed by an act of eliz. there needed not any express words of revival in queen elizabeth's statute, but these acts of king henry were impliedly and virtually revived[n]. [footnote n: inst. .] . acts of parliament derogatory from the power of subsequent parliaments bind not. so the statute hen. vii. c. . which directs, that no person for assisting a king _de facto_ shall be attainted of treason by act of parliament or otherwise, is held to be good only as to common prosecutions for high treason; but will not restrain or clog any parliamentary attainder[o]. because the legislature, being in truth the sovereign power, is always of equal, always of absolute authority: it acknowleges no superior upon earth, which the prior legislature must have been, if it's ordinances could bind the present parliament. and upon the same principle cicero, in his letters to atticus, treats with a proper contempt these restraining clauses which endeavour to tie up the hands of succeeding legislatures. "when you repeal the law itself, says he, you at the same time repeal the prohibitory clause, which guards against such repeal[p]." [footnote o: inst. .] [footnote p: _cum lex abrogatur, illud ipsum abrogatur, quo non eam abrogari oporteat._ _l._ . _ep._ .] . lastly, acts of parliament that are impossible to be performed are of no validity; and if there arise out of them collaterally any absurd consequences, manifestly contradictory to common reason, they are, with regard to those collateral consequences, void. i lay down the rule with these restrictions; though i know it is generally laid down more largely, that acts of parliament contrary to reason are void. but if the parliament will positively enact a thing to be done which is unreasonable, i know of no power that can control it: and the examples usually alleged in support of this sense of the rule do none of them prove, that where the main object of a statute is unreasonable the judges are at liberty to reject it; for that were to set the judicial power above that of the legislature, which would be subversive of all government. but where some collateral matter arises out of the general words, and happens to be unreasonable; there the judges are in decency to conclude that this consequence was not foreseen by the parliament, and therefore they are at liberty to expound the statute by equity, and only _quoad hoc_ disregard it. thus if an act of parliament gives a man power to try all causes, that arise within his manor of dale; yet, if a cause should arise in which he himself is party, the act is construed not to extend to that; because it is unreasonable that any man should determine his own quarrel[q]. but, if we could conceive it possible for the parliament to enact, that he should try as well his own causes as those of other persons, there is no court that has power to defeat the intent of the legislature, when couched in such evident and express words, as leave no doubt whether it was the intent of the legislature or no. [footnote q: rep. .] these are the several grounds of the laws of england: over and above which, equity is also frequently called in to assist, to moderate, and to explain it. what equity is, and how impossible in it's very essence to be reduced to stated rules, hath been shewn in the preceding section. i shall therefore only add, that there are courts of this kind established for the benefit of the subject, to correct and soften the rigor of the law, when through it's generality it bears too hard in particular cases; to detect and punish latent frauds, which the law is not minute enough to reach; to enforce the execution of such matters of trust and confidence, as are binding in conscience, though perhaps not strictly legal; to deliver from such dangers as are owing to misfortune or oversight; and, in short, to relieve in all such cases as are, _bona fide_, objects of relief. this is the business of our courts of equity, which however are only conversant in matters of property. for the freedom of our constitution will not permit, that in criminal cases a power should be lodged in any judge, to construe the law otherwise than according to the letter. this caution, while it admirably protects the public liberty, can never bear hard upon individuals. a man cannot suffer _more_ punishment than the law assigns, but he may suffer _less_. the laws cannot be strained by partiality to inflict a penalty beyond what the letter will warrant; but in cases where the letter induces any apparent hardship, the crown has the power to pardon. section the fourth. of the countries subject to the laws of england. the kingdom of england, over which our municipal laws have jurisdiction, includes not, by the common law, either wales, scotland, or ireland, or any other part of the king's dominions, except the territory of england only. and yet the civil laws and local customs of this territory do now obtain, in part or in all, with more or less restrictions, in these and many other adjacent countries; of which it will be proper first to take a review, before we consider the kingdom of england itself, the original and proper subject of these laws. wales had continued independent of england, unconquered and uncultivated, in the primitive pastoral state which caesar and tacitus ascribe to britain in general, for many centuries; even from the time of the hostile invasions of the saxons, when the ancient and christian inhabitants of the island retired to those natural intrenchments, for protection from their pagan visitants. but when these invaders themselves were converted to christianity, and settled into regular and potent governments, this retreat of the antient britons grew every day narrower; they were overrun by little and little, gradually driven from one fastness to another, and by repeated losses abridged of their wild independence. very early in our history we find their princes doing homage to the crown of england; till at length in the reign of edward the first, who may justly be stiled the conqueror of wales, the line of their antient princes was abolished, and the king of england's eldest son became, as a matter of course, their titular prince: the territory of wales being then entirely annexed to the dominion of the crown of england[a], or, as the statute of rutland[b] expresses it, "_terra walliae cum incolis suis, prius regi jure feodali subjecta_, (of which homage was the sign) _jam in proprietatis dominium totaliter et cum integritate conversa est, et coronae regni angliae tanquam pars corporis ejusdem annexa et unita_." by the statute also of wales[c] very material alterations were made in divers parts of their laws, so as to reduce them nearer to the english standard, especially in the forms of their judicial proceedings: but they still retained very much of their original polity, particularly their rule of inheritance, viz. that their lands were divided equally among all the issue male, and did not descend to the eldest son alone. by other subsequent statutes their provincial immunities were still farther abridged: but the finishing stroke to their independency, was given by the statute hen. viii. c. . which at the same time gave the utmost advancement to their civil prosperity, by admitting them to a thorough communication of laws with the subjects of england. thus were this brave people gradually conquered into the enjoyment of true liberty; being insensibly put upon the same footing, and made fellow-citizens with their conquerors. a generous method of triumph, which the republic of rome practised with great success; till she reduced all italy to her obedience, by admitting the vanquished states to partake of the roman privileges. [footnote a: vaugh. .] [footnote b: edw. i.] [footnote c: edw. i.] it is enacted by this statute hen. viii, . that the dominion of wales shall be for ever united to the kingdom of england. . that all welchmen born shall have the same liberties as other the king's subjects. . that lands in wales shall be inheritable according to the english tenures and rules of descent. . that the laws of england, and no other, shall be used in wales: besides many other regulations of the police of this principality. and the statute & hen. viii. c. . confirms the same, adds farther regulations, divides it into twelve shires, and, in short, reduces it into the same order in which it stands at this day; differing from the kingdom of england in only a few particulars, and those too of the nature of privileges, (such as having courts within itself, independent of the process of westminster hall) and some other immaterial peculiarities, hardly more than are to be found in many counties of england itself. the kingdom of scotland, notwithstanding the union of the crowns on the accession of their king james vi to that of england, continued an entirely separate and distinct kingdom for above a century, though an union had been long projected; which was judged to be the more easy to be done, as both kingdoms were antiently under the same government, and still retained a very great resemblance, though far from an identity, in their laws. by an act of parliament jac. i. c. . it is declared, that these two, mighty, famous, and antient kingdoms were formerly one. and sir edward coke observes[d], how marvellous a conformity there was, not only in the religion and language of the two nations, but also in their antient laws, the descent of the crown, their parliaments, their titles of nobility, their officers of state and of justice, their writs, their customs, and even the language of their laws. upon which account he supposes the common law of each to have been originally the same, especially as their most antient and authentic book, called _regiam majestatem_ and containing the rules of _their_ antient common law, is extremely similar that of glanvil, which contains the principles of _ours_, as it stood in the reign of henry ii. and the many diversities, subsisting between the two laws at present, may be well enough accounted for, from a diversity of practice in two large and uncommunicating jurisdictions, and from the acts of two distinct and independent parliaments, which have in many points altered and abrogated the old common law of both kingdoms. [footnote d: inst. .] however sir edward coke, and the politicians of that time, conceived great difficulties in carrying on the projected union: but these were at length overcome, and the great work was happily effected in , anne; when twenty five articles of union were agreed to by the parliaments of both nations: the purport of the most considerable being as follows: . that on the first of may , and for ever after, the kingdoms of england and scotland, shall be united into one kingdom, by the name of great britain. . the succession to the monarchy of great britain shall be the same as was before settled with regard to that of england. . the united kingdom shall be represented by one parliament. . there shall be a communication of all rights and privileges between the subjects of both kingdoms, except where it is otherwise agreed. . when england raises , , _l._ by a land tax, scotland shall raise , _l._ , . the standards of the coin, of weights, and of measures, shall be reduced to those of england, throughout the united kingdoms. . the laws relating to trade, customs, and the excise, shall be the same in scotland as in england. but all the other laws of scotland shall remain in force; but alterable by the parliament of great britain. yet with this caution; that laws relating to public policy are alterable at the discretion of the parliament; laws relating to private rights are not to be altered but for the evident utility of the people of scotland. . sixteen peers are to be chosen to represent the peerage of scotland in parliament, and forty five members to sit in the house of commons. . the sixteen peers of scotland shall have all privileges of parliament: and all peers of scotland shall be peers of great britain, and rank next after those of the same degree at the time of the union, and shall have all privileges of peers, except sitting in the house of lords and voting on the trial of a peer. these are the principal of the twenty five articles of union, which are ratified and confirmed by statute ann. c. . in which statute there are also two acts of parliament recited; the one of scotland, whereby the church of scotland, and also the four universities of that kingdom, are established for ever, and all succeeding sovereigns are to take an oath inviolably to maintain the same; the other of england, ann. c. . whereby the acts of uniformity of eliz. and car. ii. (except as the same had been altered by parliament at that time) and all other acts then in force for the preservation of the church of england, are declared perpetual; and it is stipulated, that every subsequent king and queen shall take an oath inviolably to maintain the same within england, ireland, wales, and the town of berwick upon tweed. and it is enacted, that these two acts "shall for ever be observed as fundamental and essential conditions of the union." upon these articles, and act of union, it is to be observed, . that the two kingdoms are now so inseparably united, that nothing can ever disunite them again, but an infringement of those points which, when they were separate and independent nations, it was mutually stipulated should be "fundamental and essential conditions of the union." . that whatever else may be deemed "fundamental and essential conditions," the preservation of the two churches, of england and scotland, in the same state that they were in at the time of the union, and the maintenance of the acts of uniformity which establish our common prayer, are expressly declared so to be. . that therefore any alteration in the constitutions of either of those churches, or in the liturgy of the church of england, would be an infringement of these "fundamental and essential conditions," and greatly endanger the union. . that the municipal laws of scotland are ordained to be still observed in that part of the island, unless altered by parliament; and, as the parliament has not yet thought proper, except in a few instances, to alter them, they still (with regard to the particulars unaltered) continue in full force. wherefore the municipal or common laws of england are, generally speaking, of no force or validity in scotland; and, of consequence, in the ensuing commentaries, we shall have very little occasion to mention, any farther than sometimes by way of illustration, the municipal laws of that part of the united kingdoms. the town of berwick upon tweed, though subject to the crown of england ever since the conquest of it in the reign of edward iv, is not part of the kingdom of england, nor subject to the common law; though it is subject to all acts of parliament, being represented by burgesses therein. and therefore it was declared by statute geo. ii. c. . that where england only is mentioned in any act of parliament, the same notwithstanding shall be deemed to comprehend the dominion of wales, and town of berwick upon tweed. but the general law there used is the scots law, and the ordinary process of the courts of westminster-hall is there of no authority[e]. [footnote e: sid. . show. .] as to ireland, that is still a distinct kingdom; though a dependent, subordinate kingdom. it was only entitled the dominion or lordship of ireland[f], and the king's stile was no other than _dominus hiberniae_, lord of ireland, till the thirty third year of king henry the eighth; when he assumed the title of king, which is recognized by act of parliament hen. viii. c. . but, as scotland and england are now one and the same kingdom, and yet differ in their municipal laws; so england and ireland are, on the other hand, distinct kingdoms, and yet in general agree in their laws. the inhabitants of ireland are, for the most part, descended from the english, who planted it as a kind of colony, after the conquest of it by king henry the second, at which time they carried over the english laws along with them. and as ireland, thus conquered, planted, and governed, still continues in a state of dependence, it must necessarily conform to, and be obliged by such laws as the superior state thinks proper to prescribe. [footnote f: _stat. hiberniae._ hen. iii.] at the time of this conquest the irish were governed by what they called the brehon law, so stiled from the irish name of judges, who were denominated brehons[g]. but king john in the twelfth year of his reign went into ireland, and carried over with him many able sages of the law; and there by his letters patent, in right of the dominion of conquest, is said to have ordained and established that ireland should be governed by the laws of england[h]: which letters patent sir edward coke[i] apprehends to have been there confirmed in parliament. but to this ordinance many of the irish were averse to conform, and still stuck to their brehon law: so that both henry the third[k] and edward the first[l] were obliged to renew the injunction; and at length in a parliament holden at kilkenny, edw. iii, under lionel duke of clarence, the then lieutenant of ireland, the brehon law was formally abolished, it being unanimously declared to be indeed no law, but a lewd custom crept in of later times. and yet, even in the reign of queen elizabeth, the wild natives still kept and preserved their brehon law; which is described[m] to have been "a rule of right unwritten, but delivered by tradition from one to another, in which oftentimes there appeared great shew of equity in determining the right between party and party, but in many things repugnant quite both to god's law and man's." the latter part of which character is alone allowed it under edward the first and his grandson. [footnote g: inst. . edm. spenser's state of ireland. p. . edit. hughes.] [footnote h: vaugh. . pryn. rec. .] [footnote i: inst. .] [footnote k: _a.r._ . rym. _foed._ .] [footnote l: _a.r._ .--_pro eo quod leges quibus utuntur hybernici deo detestabiles existunt, et omni juri dissonant, adeo quod leges censeri non debeant--nobis et consilio nostro satis videtur expediens eisdem utendas concedere leges anglicanas._ pryn. rec. .] [footnote m: edm. spenser. _ibid._] but as ireland was a distinct dominion, and had parliaments of it's own, it is to be observed, that though the immemorial customs, or common law, of england were made the rule of justice in ireland also, yet no acts of the english parliament, since the twelfth of king john, extended into that kingdom; unless it were specially named, or included under general words, such as, "within any of the king's dominions." and this is particularly expressed, and the reason given in the year book[n]: "ireland hath a parliament of it's own, and maketh and altereth laws; and our statutes do not bind them, because they do not send representatives to our parliament: but their persons are the king's subjects, like as the inhabitants of calais, gascoigny, and guienne, while they continued under the king's subjection." the method made use of in ireland, as stated by sir edward coke[o], of making statutes in their parliaments, according to poynings' law, of which hereafter, is this: . the lord lieutenant and council of ireland must certify to the king under the great seal of ireland the acts proposed to be passed. . the king and council of england are to consider, approve, alter, or reject the said acts; and certify them back again under the great seal of england. and then, . they are to be proposed, received, or rejected in the parliament of ireland. by this means nothing was left to the parliament in ireland, but a bare negative or power of rejecting, not of proposing, any law. but the usage now is, that bills are often framed in either house of parliament under the denomination of heads for a bill or bills; and in that shape they are offered to the consideration of the lord lieutenant and privy council, who then reject them at pleasure, without transmitting them to england. [footnote n: ric. iii. pl. .] [footnote o: inst. .] but the irish nation, being excluded from the benefit of the english statutes, were deprived of many good and profitable laws, made for the improvement of the common law: and, the measure of justice in both kingdoms becoming thereby no longer uniform, therefore in the hen. vii. a set of statutes passed in ireland, (sir edward poynings being then lord deputy, whence it is called poynings' law) by which it was, among other things, enacted, that all acts of parliament before made in england, should be of force within the realm of ireland[p]. but, by the same rule that no laws made in england, between king john's time and poynings' law, were then binding in ireland, it follows that no acts of the english parliament made since the hen. vii. do now bind the people of ireland, unless specially named or included under general words[q]. and on the other hand it is equally clear, that where ireland is particularly named, or is included under general words, they are bound by such acts of parliament. for this follows from the very nature and constitution of a dependent state: dependence being very little else, but an obligation to conform to the will or law of that superior person or state, upon which the inferior depends. the original and true ground of this superiority is the right of conquest: a right allowed by the law of nations, if not by that of nature; and founded upon a compact either expressly or tacitly made between the conqueror and the conquered, that if they will acknowlege the victor for their master, he will treat them for the future as subjects, and not as enemies[r]. [footnote p: inst. .] [footnote q: rep. .] [footnote r: puff. l. of n. . . .] but this state of dependence being almost forgotten, and ready to be disputed by the irish nation, it became necessary some years ago to declare how that matter really stood: and therefore by statute geo. i. c. . it is declared, that the kingdom of ireland ought to be subordinate to, and dependent upon, the imperial crown of great britain, as being inseparably united thereto; and that the king's majesty, with the consent of the lords and commons of great britain in parliament, hath power to make laws to bind the people of ireland. thus we see how extensively the laws of ireland communicate with those of england: and indeed such communication is highly necessary, as the ultimate resort from the courts of justice in ireland is, as in wales, to those in england; a writ of error (in the nature of an appeal) lying from the king's bench in ireland to the king's bench in england[s], as the appeal from all other courts in ireland lies immediately to the house of lords here: it being expressly declared, by the same statute geo. i. c. . that the peers of ireland have no jurisdiction to affirm or reverse any judgments or decrees whatsoever. the propriety, and even necessity, in all inferior dominions, of this constitution, "that, though justice be in general administred by courts of their own, yet that the appeal in the last resort ought to be to the courts of the superior state," is founded upon these two reasons. . because otherwise the law, appointed or permitted to such inferior dominion, might be insensibly changed within itself, without the assent of the superior. . because otherwise judgments might be given to the disadvantage or diminution of the superiority; or to make the dependence to be only of the person of the king, and not of the crown of england[t]. [footnote s: this was law in the time of hen. viii. as appears by the antient book, entituled, _diversity of courts, c. bank le roy_.] [footnote t: vaugh. .] with regard to the other adjacent islands which are subject to the crown of great britain, some of them (as the isle of wight, of portland, of thanet, &c.) are comprized within some neighbouring county, and are therefore to be looked upon as annexed to the mother island, and part of the kingdom of england. but there are others, which require a more particular consideration. and, first, the isle of man is a distinct territory from england and is not governed by our laws; neither doth any act of parliament extend to it, unless it be particularly named therein; and then an act of parliament is binding there[u]. it was formerly a subordinate feudatory kingdom, subject to the kings of norway; then to king john and henry iii of england; afterwards to the kings of scotland; and then again to the crown of england: and at length we find king henry iv claiming the island by right of conquest, and disposing of it to the earl of northumberland; upon whose attainder it was granted (by the name of the lordship of man) to sir john de stanley by letters patent hen. iv[w]. in his lineal descendants it continued for eight generations, till the death of ferdinando earl of derby, _a.d._ ; when a controversy arose concerning the inheritance thereof, between his daughters and william his surviving brother: upon which, and a doubt that was started concerning the validity of the original patent[x], the island was seised into the queen's hands, and afterwards various grants were made of it by king james the first; all which being expired or surrendered, it was granted afresh in jac. i. to william earl of derby, and the heirs male of his body, with remainder to his heirs general; which grant was the next year confirmed by act of parliament, with a restraint of the power of alienation by the said earl and his issue male. on the death of james earl of derby, _a.d._ , the male line of earl william failing, the duke of atholl succeeded to the island as heir general by a female branch. in the mean time, though the title of king had long been disused, the earls of derby, as lords of man, had maintained a sort of royal authority therein; by assenting or dissenting to laws, and exercising an appellate jurisdiction. yet, though no english writ, or process from the courts of westminster, was of any authority in man, an appeal lay from a decree of the lord of the island to the king of great britain in council[y]. but, the distinct jurisdiction of this little subordinate royalty being found inconvenient for the purposes of public justice, and for the revenue, (it affording a convenient asylum for debtors, outlaws, and smugglers) authority was given to the treasury by statute geo. i. c. . to purchase the interest of the then proprietors for the use of the crown: which purchase hath at length been completed in this present year , and confirmed by statutes geo. iii. c. , & . whereby the whole island and all it's dependencies, so granted as aforesaid, (except the landed property of the atholl family, their manerial rights and emoluments, and the patronage of the bishoprick[z] and other ecclesiastical benefices) are unalienably vested in the crown, and subjected to the regulations of the british excise and customs. [footnote u: inst. . and. .] [footnote w: selden. tit. hon. . .] [footnote x: camden. eliz. _a.d._ .] [footnote y: p.w. .] [footnote z: the bishoprick of man, or sodor, or sodor and man, was formerly within the province of canterbury, but annexed to that of york by statute hen. viii. c. .] the islands of jersey, guernsey, sark, alderney, and their appendages, were parcel of the duchy of normandy, and were united to the crown of england by the first princes of the norman line. they are governed by their own laws, which are for the most part the ducal customs of normandy, being collected in an antient book of very great authority, entituled, _le grand coustumier_. the king's writ, or process from the courts of westminster, is there of no force; but his commission is. they are not bound by common acts of our parliaments, unless particularly named[a]. all causes are originally determined by their own officers, the bailiffs and jurats of the islands; but an appeal lies from them to the king in council, in the last resort. [footnote a: inst. .] besides these adjacent islands, our more distant plantations in america, and elsewhere, are also in some respects subject to the english laws. plantations, or colonies in distant countries, are either such where the lands are claimed by right of occupancy only, by finding them desart and uncultivated, and peopling them from the mother country; or where, when already cultivated, they have been either gained by conquest, or ceded to us by treaties. and both these rights are founded upon the law of nature, or at least upon that of nations. but there is a difference between these two species of colonies, with respect to the laws by which they are bound. for it is held[b], that if an uninhabited country be discovered and planted by english subjects, all the english laws are immediately there in force. for as the law is the birthright of every subject, so wherever they go they carry their laws with them[c]. but in conquered or ceded countries, that have already laws of their own, the king may indeed alter and change those laws; but, till he does actually change them, the antient laws of the country remain, unless such as are against the law of god, as in the case of an infidel country[d]. [footnote b: salk. . .] [footnote c: p. wms. .] [footnote d: rep. _b._ calvin's case. show. parl. c. .] our american plantations are principally of this latter sort, being obtained in the last century either by right of conquest and driving out the natives (with what natural justice i shall not at present enquire) or by treaties. and therefore the common law of england, as such, has no allowance or authority there; they being no part of the mother country, but distinct (though dependent) dominions. they are subject however to the control of the parliament; though (like ireland, man, and the rest) not bound by any acts of parliament, unless particularly named. the form of government in most of them is borrowed from that of england. they have a governor named by the king, (or in some proprietary colonies by the proprietor) who is his representative or deputy. they have courts of justice of their own, from whose decisions an appeal lies to the king in council here in england. their general assemblies which are their house of commons, together with their council of state being their upper house, with the concurrence of the king or his representative the governor, make laws suited to their own emergencies. but it is particularly declared by statute & w. iii. c. . that all laws, by-laws, usages, and customs, which shall be in practice in any of the plantations, repugnant to any law, made or to be made in this kingdom relative to the said plantations, shall be utterly void and of none effect. these are the several parts of the dominions of the crown of great britain, in which the municipal laws of england are not of force or authority, merely _as_ the municipal laws of england. most of them have probably copied the spirit of their own law from this original; but then it receives it's obligation, and authoritative force, from being the law of the country. as to any foreign dominions which may belong to the person of the king by hereditary descent, by purchase, or other acquisition, as the territory of hanover, and his majesty's other property in germany; as these do not in any wise appertain to the crown of these kingdoms, they are entirely unconnected with the laws of england, and do not communicate with this nation in any respect whatsoever. the english legislature had wisely remarked the inconveniences that had formerly resulted from dominions on the continent of europe; from the norman territory which william the conqueror brought with him, and held in conjunction with the english throne; and from anjou, and it's appendages, which fell to henry the second by hereditary descent. they had seen the nation engaged for near four hundred years together in ruinous wars for defence of these foreign dominions; till, happily for this country, they were lost under the reign of henry the sixth. they observed that from that time the maritime interests of england were better understood and more closely pursued: that, in consequence of this attention, the nation, as soon as she had rested from her civil wars, began at this period to flourish all at once; and became much more considerable in europe than when her princes were possessed of a larger territory, and her counsels distracted by foreign interests. this experience and these considerations gave birth to a conditional clause in the act[e] of settlement, which vested the crown in his present majesty's illustrious house, "that in case the crown and imperial dignity of this realm shall hereafter come to any person not being a native of this kingdom of england, this nation shall not be obliged to engage in any war for the defence of any dominions or territories which do not belong to the crown of england, without consent of parliament." [footnote e: stat. & w. iii. c. .] we come now to consider the kingdom of england in particular, the direct and immediate subject of those laws, concerning which we are to treat in the ensuing commentaries. and this comprehends not only wales, of which enough has been already said, but also part of the sea. the main or high seas are part of the realm of england, for thereon our courts of admiralty have jurisdiction, as will be shewn hereafter; but they are not subject to the common law[f]. this main sea begins at the low-water-mark. but between the high-water-mark, and the low-water-mark, where the sea ebbs and flows, the common law and the admiralty have _divisum imperium_, an alternate jurisdiction; one upon the water, when it is full sea; the other upon the land, when it is an ebb[g]. [footnote f: co. litt. .] [footnote g: finch. l. .] the territory of england is liable to two divisions; the one ecclesiastical, the other civil. . the ecclesiastical division is, primarily, into two provinces, those of canterbury and york. a province is the circuit of an arch-bishop's jurisdiction. each province contains divers dioceses, or sees of suffragan bishops; whereof canterbury includes twenty one, and york three; besides the bishoprick of the isle of man, which was annexed to the province of york by king henry viii. every diocese is divided into archdeaconries, whereof there are sixty in all; each archdeaconry into rural deanries, which are the circuit of the archdeacon's and rural dean's jurisdiction, of whom hereafter; and every deanry is divided into parishes[h]. [footnote h: co. litt. .] a parish is that circuit of ground in which the souls under the care of one parson or vicar do inhabit. these are computed to be near ten thousand in number. how antient the division of parishes is, may at present be difficult to ascertain; for it seems to be agreed on all hands, that in the early ages of christianity in this island, parishes were unknown, or at least signified the same that a diocese does now. there was then no appropriation of ecclesiastical dues to any particular church; but every man was at liberty to contribute his tithes to whatever priest or church he pleased, provided only that he did it to some: or, if he made no special appointment or appropriation thereof, they were paid into the hands of the bishop, whose duty it was to distribute them among the clergy and for other pious purposes according to his own discretion[i]. [footnote i: seld. of tith. . . inst. . hob. .] mr camden[k] says england was divided into parishes by arch-bishop honorius about the year . sir henry hobart[l] lays it down that parishes were first erected by the council of lateran, which was held _a.d._ . each widely differing from the other, and both of them perhaps from the truth; which will probably be found in the medium between the two extremes. for mr selden has clearly shewn[m], that the clergy lived in common without any division of parishes, long after the time mentioned by camden. and it appears from the saxon laws, that parishes were in being long before the date of that council of lateran, to which they are ascribed by hobart. [footnote k: in his britannia.] [footnote l: hob. .] [footnote m: of tithes. c. .] we find the distinction of parishes, nay even of mother-churches, so early as in the laws of king edgar, about the year . before that time the consecration of tithes was in general _arbitrary_; that is, every man paid his own (as was before observed) to what church or parish he pleased. but this being liable to be attended with either fraud, or at least caprice, in the persons paying; and with either jealousies or mean compliances in such as were competitors for receiving them; it was now ordered by the law of king edgar[n], that "_dentur omnes decimae primariae ecclesiae ad quam parochia pertinet_." however, if any thane, or great lord, had a church within his own demesnes, distinct from the mother-church, in the nature of a private chapel; then, provided such church had a coemitery or consecrated place of burial belonging to it, he might allot one third of his tithes for the maintenance of the officiating minister: but, if it had no coemitery, the thane must himself have maintained his chaplain by some other means; for in such case _all_ his tithes were ordained to be paid to the _primariae ecclesiae_ or mother-church[o]. [footnote n: _c._ .] [footnote o: _ibid._ _c._ . see also the laws of king canute, c. . about the year .] this proves that the kingdom was then universally divided into parishes; which division happened probably not all at once, but by degrees. for it seems pretty clear and certain that the boundaries of parishes were originally ascertained by those of a manor or manors: since it very seldom happens that a manor extends itself over more parishes than one, though there are often many manors in one parish. the lords, as christianity spread itself, began to build churches upon their own demesnes or wastes, to accommodate their tenants in one or two adjoining lordships; and, in order to have divine service regularly performed therein, obliged all their tenants to appropriate their tithes to the maintenance of the one officiating minister, instead of leaving them at liberty to distribute them among the clergy of the diocese in general: and this tract of land, the tithes whereof were so appropriated, formed a distinct parish. which will well enough account for the frequent intermixture of parishes one with another. for if a lord had a parcel of land detached from the main of his estate, but not sufficient to form a parish of itself, it was natural for him to endow his newly erected church with the tithes of those disjointed lands; especially if no church was then built in any lordship adjoining to those out-lying parcels. thus parishes were gradually formed, and parish churches endowed with the tithes that arose within the circuit assigned. but some lands, either because they were in the hands of irreligious and careless owners, or were situate in forests and desart places, or for other now unsearchable reasons, were never united to any parish, and therefore continue to this day extraparochial; and their tithes are now by immemorial custom payable to the king instead of the bishop, in trust and confidence that he will distribute them, for the general good of the church[p]. and thus much for the ecclesiastical division of this kingdom. [footnote p: inst. . rep. . cro. eliz. .] . the civil division of the territory of england is into counties, of those counties into hundreds, of those hundreds into tithings or towns. which division, as it now stands, seems to owe it's original to king alfred; who, to prevent the rapines and disorders which formerly prevailed in the realm, instituted tithings; so called, from the saxon, because _ten_ freeholders with their families composed one. these all dwelt together, and were sureties or free pledges to the king for the good behaviour of each other; and, if any offence were committed in their district, they were bound to have the offender forthcoming[q]. and therefore antiently no man was suffered to abide in england above forty days, unless he were enrolled in some tithing or decennary[r]. one of the principal inhabitants of the tithing is annually appointed to preside over the rest, being called the tithing-man, the headborough, (words which speak their own etymology) and in some countries the borsholder, or borough's-ealder, being supposed the discreetest man in the borough, town, or tithing[s]. [footnote q: _flet._ . . this the laws of king edward the confessor, c. . very justly intitle "_summa et maxima securitas, per quam omnes statu firmissimo sustinentur;--quae hoc modo fiebat, quod sub decennali fidejussione debebant esse universi, &c._"] [footnote r: mirr. c. . §. .] [footnote s: finch. l. .] tithings, towns, or vills, are of the same signification in law; and had, each of them, originally a church and celebration of divine service, sacraments, and burials; which to have, or have had, separate to itself, is the essential distinction of a town, according to sir edward coke[t]. the word _town_ or _vill_ is indeed, by the alteration of times and language, now become a generical term, comprehending under it the several species of cities, boroughs, and common towns. a city is a town incorporated, which is or hath been the see of a bishop; and though the bishoprick be dissolved, as at westminster, yet still it remaineth a city[u]. a borough is now understood to be a town, either corporate or not, that sendeth burgesses to parliament[w]. other towns there are, to the number sir edward coke says[x] of , which are neither cities nor boroughs; some of which have the privileges of markets, and others not; but both are equally towns in law. to several of these towns there are small appendages belonging, called hamlets; which are taken notice of in the statute of exeter[y], which makes frequent mention of entire vills, demi-vills, and hamlets. entire vills sir henry spelman[z] conjectures to have consisted of ten freemen, or frank-pledges, demi-vills of five, and hamlets of less than five. these little collections of houses are sometimes under the same administration as the town itself, sometimes governed by separate officers; in which last case it is, to some purposes in law, looked upon as a distinct township. these towns, as was before hinted, contained each originally but one parish, and one tithing; though many of them now, by the encrease of inhabitants, are divided into several parishes and tithings: and sometimes, where there is but one parish there are two or more vills or tithings. [footnote t: inst. _b._] [footnote u: co. litt. _b._] [footnote w: litt. §. .] [footnote x: inst. .] [footnote y: edw. i.] [footnote z: gloss. .] as ten families of freeholders made up a town or tithing, so ten tithings composed a superior division, called a hundred, as consisting of ten times ten families. the hundred is governed by an high constable or bailiff, and formerly there was regularly held in it the hundred court for the trial of causes, though now fallen into disuse. in some of the more northern counties these hundreds are called wapentakes[a]. [footnote a: seld. _in fortesc._ _c._ .] the subdivision of hundreds into tithings seems to be most peculiarly the invention of alfred: the institution of hundreds themselves he rather introduced than invented. for they seem to have obtained in denmark[b]: and we find that in france a regulation of this sort was made above two hundred years before; set on foot by clotharius and childebert, with a view of obliging each district to answer for the robberies committed in it's own division. these divisions were, in that country, as well military as civil; and each contained a hundred freemen; who were subject to an officer called the _centenarius_; a number of which _centenarii_ were themselves subject to a superior officer called the count or _comes_[c]. and indeed this institution of hundreds may be traced back as far as the antient germans, from whom were derived both the franks who became masters of gaul, and the saxons who settled in england. for we read in tacitus[d], that both the thing and the name were well known to that warlike people. "_centeni ex singulis pagis sunt, idque ipsum inter suos vocantur; et quod primo numerus fuit, jam nomen et honor est._" [footnote b: seld. tit. of hon. . . .] [footnote c: montesq. sp. l. . .] [footnote d: _de morib. german._ .] an indefinite number of these hundreds make up a county or shire. shire is a saxon word signifying a division; but a county, _comitatus_, is plainly derived from _comes_, the count of the franks; that is, the earl, or alderman (as the saxons called him) of the shire, to whom the government of it was intrusted. this he usually exercised by his deputy, still called in latin _vice-comes_, and in english the sheriff, shrieve, or shire-reeve, signifying the officer of the shire; upon whom by process of time the civil administration of it is now totally devolved. in some counties there is an intermediate division, between the shire and the hundreds, as lathes in kent, and rapes in sussex, each of them containing about three or four hundreds apiece. these had formerly their lathe-reeves and rape-reeves, acting in subordination to the shire-reeve. where a county is divided into _three_ of these intermediate jurisdictions, they are called trithings[e], which were antiently governed by a trithing-reeve. these trithings still subsist in the large county of york, where by an easy corruption they are denominated ridings; the north, the east, and the west-riding. the number of counties in england and wales have been different at different times: at present there are forty in england, and twelve in wales. [footnote e: _ll. edw._ _c._ .] three of these counties, chester, durham, and lancaster, are called counties palatine. the two former are such by prescription, or immemorial custom; or, at least as old as the norman conquest[f]: the latter was created by king edward iii, in favour of henry plantagenet, first earl and then duke of lancaster, whose heiress john of gant the king's son had married; and afterwards confirmed in parliament, to honour john of gant himself; whom, on the death of his father-in-law, he had also created duke of lancaster[g]. counties palatine are so called _a palatio_; because the owners thereof, the earl of chester, the bishop of durham, and the duke of lancaster, had in those counties _jura regalia_, as fully as the king hath in his palace; _regalem potestatem in omnibus_, as bracton expresses it[h]. they might pardon treasons, murders, and felonies; they appointed all judges and justices of the peace; all writs and indictments ran in their names, as in other counties in the king's; and all offences were said to be done against their peace, and not, as in other places, _contra pacem domini regis_[i]. and indeed by the antient law, in all peculiar jurisdictions, offences were said to be done against his peace in whose court they were tried; in a court leet, _contra pacem domini_; in the court of a corporation, _contra pacem ballivorum_; in the sheriff's court or tourn, _contra pacem vice-comitis_[k]. these palatine privileges were in all probability originally granted to the counties of chester and durham, because they bordered upon enemies countries, wales and scotland; in order that the owners, being encouraged by so large an authority, might be the more watchful in it's defence; and that the inhabitants, having justice administered at home, might not be obliged to go out of the county, and leave it open to the enemies incursions. and upon this account also there were formerly two other counties palatine, pembrokeshire and hexamshire, the latter now united with northumberland: but these were abolished by parliament, the former in hen. viii, the latter in eliz. and in hen. viii likewise, the powers beforementioned of owners of counties palatine were abridged; the reason for their continuance in a manner ceasing: though still all writs are witnessed in their names, and all forfeitures for treason by the common law accrue to them[l]. [footnote f: seld. tit. hon. . . .] [footnote g: plowd. .] [footnote h: _l._ . _c._ . §. .] [footnote i: . inst. .] [footnote k: seld. _in hengham magn._ _c._ .] [footnote l: inst. .] of these three, the county of durham is now the only one remaining in the hands of a subject. for the earldom of chester, as camden testifies, was united to the crown by henry iii, and has ever since given title to the king's eldest son. and the county palatine, or duchy, of lancaster was the property of henry of bolinbroke, the son of john of gant, at the time when he wrested the crown from king richard ii, and assumed the title of henry iv. but he was too prudent to suffer this to be united to the crown, lest, if he lost one, he should lose the other also. for, as plowden[m] and sir edward coke[n] observe, "he knew he had the duchy of lancaster by sure and indefeasible title, but that his title to the crown was not so assured: for that after the decease of richard ii the right of the crown was in the heir of lionel duke of clarence, _second_ son of edward iii; john of gant, father to this henry iv, being but the _fourth_ son." and therefore he procured an act of parliament, in the first year of his reign, to keep it distinct and separate from the crown, and so it descended to his son, and grandson, henry v, and henry vi. henry vi being attainted in edw. iv, this duchy was declared in parliament to have become forfeited to the crown[o], and at the same time an act was made to keep it still distinct and separate from other inheritances of the crown. and in hen. vii another act was made to vest the inheritance thereof in henry vii and his heirs; and in this state, say sir edward coke[p] and lambard[q], viz. in the natural heirs or posterity of henry vii, did the right of the duchy remain to their days; a separate and distinct inheritance from that of the crown of england[r]. [footnote m: .] [footnote n: inst. .] [footnote o: ventr. .] [footnote p: inst. .] [footnote q: archeion. .] [footnote r: if this notion of lambard and coke be well founded, it might have become a very curious question at the time of the revolution in , in whom the right of the duchy remained after king james's abdication. the attainder indeed of the pretended prince of wales (by statute w. iii. c. .) has now put the matter out of doubt. and yet, to give that attainder it's full force in this respect, the object of it must have been supposed legitimate, else he had no interest to forfeit.] the isle of ely is not a county palatine, though sometimes erroneously called so; but only a royal franchise; the bishop having, by grant of king henry the first, _jura regalia_ within the isle of ely, and thereby he exercises a jurisdiction over all causes, as well criminal, as civil[s]. [footnote s: inst. .] there are also counties _corporate_; which are certain cities and towns, some with more, some with less territory annexed to them; to which out of special grace and favour the kings of england have granted to be counties of themselves, and not to be comprized in any other county; but to be governed by their own sheriffs and other magistrates, so that no officers of the county at large have any power to intermeddle therein. such are london, york, bristol, norwich, coventry, and many others. and thus much of the countries subject to the laws of england. commentaries on the laws of england. book the first. of the rights of persons. chapter the first. of the absolute rights of individuals. the objects of the laws of england are so very numerous and extensive, that, in order to consider them with any tolerable ease and perspicuity, it will be necessary to distribute them methodically, under proper and distinct heads; avoiding as much as possible divisions too large and comprehensive on the one hand, and too trifling and minute on the other; both of which are equally productive of confusion. now, as municipal law is a rule of civil conduct, commanding what is right, and prohibiting what is wrong; or, as cicero[a], and after him our bracton[b], has expressed it, _sanctio justa, jubens honesta et prohibens contraria_; it follows, that the primary and principal objects of the law are rights, and wrongs. in the prosecution therefore of these commentaries, i shall follow this very simple and obvious division; and shall in the first place consider the _rights_ that are commanded, and secondly the _wrongs_ that are forbidden by the laws of england. [footnote a: _philipp._ .] [footnote b: _l._ . _c._ .] rights are however liable to another subdivision; being either, first, those which concern, and are annexed to the persons of men, and are then called _jura personarum_ or the _rights of persons_; or they are, secondly, such as a man may acquire over external objects, or things unconnected with his person, which are stiled _jura rerum_ or the _rights of things_. wrongs also are divisible into, first, _private wrongs_, which, being an infringement merely of particular rights, concern individuals only, and are called civil injuries; and secondly, _public wrongs_, which, being a breach of general and public rights, affect the whole community, and are called crimes and misdemesnors. the objects of the laws of england falling into this fourfold division, the present commentaries will therefore consist of the four following parts: . _the rights of persons_; with the means whereby such rights may be either acquired or lost. . _the rights of things_; with the means also of acquiring and losing them. . _private wrongs_, or civil injuries; with the means of redressing them by law. . _public wrongs_, or crimes and misdemesnors; with the means of prevention and punishment. we are now, first, to consider _the rights of persons_; with the means of acquiring and losing them. now the rights of persons that are commanded to be observed by the municipal law are of two sorts; first, such as are due _from_ every citizen, which are usually called civil _duties_; and, secondly, such as belong _to_ him, which is the more popular acceptation of _rights_ or _jura_. both may indeed be comprized in this latter division; for, as all social duties are of a relative nature, at the same time that they are due _from_ one man, or set of men, they must also be due _to_ another. but i apprehend it will be more clear and easy, to consider many of them as duties required from, rather than as rights belonging to, particular persons. thus, for instance, allegiance is usually, and therefore most easily, considered as the duty of the people, and protection as the duty of the magistrate; and yet they are, reciprocally, the rights as well as duties of each other. allegiance is the right of the magistrate, and protection the right of the people. persons also are divided by the law into either natural persons, or artificial. natural persons are such as the god of nature formed us: artificial are such as created and devised by human laws for the purposes of society and government; which are called corporations or bodies politic. the rights of persons considered in their natural capacities are also of two sorts, absolute, and relative. absolute, which are such as appertain and belong to particular men, merely as individuals or single persons: relative, which are incident to them as members of society, and standing in various relations to each other. the first, that is, absolute rights, will be the subject of the present chapter. by the absolute _rights_ of individuals we mean those which are so in their primary and strictest sense; such as would belong to their persons merely in a state of nature, and which every man is intitled to enjoy whether out of society or in it. but with regard to the absolute _duties_, which man is bound to perform considered as a mere individual, it is not to be expected that any human municipal laws should at all explain or enforce them. for the end and intent of such laws being only to regulate the behaviour of mankind, as they are members of society, and stand in various relations to each other, they have consequently no business or concern with any but social or relative duties. let a man therefore be ever so abandoned in his principles, or vitious in his practice, provided he keeps his wickedness to himself, and does not offend against the rules of public decency, he is out of the reach of human laws. but if he makes his vices public, though they be such as seem principally to affect himself, (as drunkenness, or the like) they then become, by the bad example they set, of pernicious effects to society; and therefore it is then the business of human laws to correct them. here the circumstance of publication is what alters the nature of the case. _public_ sobriety is a relative duty, and therefore enjoined by our laws: _private_ sobriety is an absolute duty, which, whether it be performed or not, human tribunals can never know; and therefore they can never enforce it by any civil sanction. but, with respect to _rights_, the case is different. human laws define and enforce as well those rights which belong to a man considered as an individual, as those which belong to him considered as related to others. for the principal aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature; but which could not be preserved in peace without that mutual assistance and intercourse, which is gained by the institution of friendly and social communities. hence it follows, that the first and primary end of human laws is to maintain and regulate these _absolute_ rights of individuals. such rights as are social and _relative_ result from, and are posterior to, the formation of states and societies: so that to maintain and regulate these, is clearly a subsequent consideration. and therefore the principal view of human laws is, or ought always to be, to explain, protect, and enforce such rights as are absolute, which in themselves are few and simple; and, then, such rights as are relative, which arising from a variety of connexions, will be far more numerous and more complicated. these will take up a greater space in any code of laws, and hence may appear to be more attended to, though in reality they are not, than the rights of the former kind. let us therefore proceed to examine how far all laws ought, and how far the laws of england actually do, take notice of these absolute rights, and provide for their lasting security. the absolute rights of man, considered as a free agent, endowed with discernment to know good from evil, and with power of choosing those measures which appear to him to be most desirable, are usually summed up in one general appellation, and denominated the natural liberty of mankind. this natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature: being a right inherent in us by birth, and one of the gifts of god to man at his creation, when he endued him with the faculty of freewill. but every man, when he enters into society, gives up a part of his natural liberty, as the price of so valuable a purchase; and, in consideration of receiving the advantages of mutual commerce, obliges himself to conform to those laws, which the community has thought proper to establish. and this species of legal obedience and conformity is infinitely more desirable, than that wild and savage liberty which is sacrificed to obtain it. for no man, that considers a moment, would wish to retain the absolute and uncontroled power of doing whatever he pleases; the consequence of which is, that every other man would also have the same power; and then there would be no security to individuals in any of the enjoyments of life. political therefore, or civil, liberty, which is that of a member of society, is no other than natural liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the publick[c]. hence we may collect that the law, which restrains a man from doing mischief to his fellow citizens, though it diminishes the natural, increases the civil liberty of mankind: but every wanton and causeless restraint of the will of the subject, whether practiced by a monarch, a nobility, or a popular assembly, is a degree of tyranny. nay, that even laws themselves, whether made with or without our consent, if they regulate and constrain our conduct in matters of mere indifference, without any good end in view, are laws destructive of liberty: whereas if any public advantage can arise from observing such precepts, the control of our private inclinations, in one or two particular points, will conduce to preserve our general freedom in others of more importance; by supporting that state, of society, which alone can secure our independence. thus the statute of king edward iv[d], which forbad the fine gentlemen of those times (under the degree of a lord) to wear pikes upon their shoes or boots of more than two inches in length, was a law that savoured of oppression; because, however ridiculous the fashion then in use might appear, the restraining it by pecuniary penalties could serve no purpose of common utility. but the statute of king charles ii[e], which prescribes a thing seemingly as indifferent; viz. a dress for the dead, who are all ordered to be buried in woollen; is a law consistent with public liberty, for it encourages the staple trade, on which in great measure depends the universal good of the nation. so that laws, when prudently framed, are by no means subversive but rather introductive of liberty; for (as mr locke has well observed[f]) where there is no law, there is no freedom. but then, on the other hand, that constitution or frame of government, that system of laws, is alone calculated to maintain civil liberty, which leaves the subject entire master of his own conduct, except in those points wherein the public good requires some direction or restraint. [footnote c: _facultas ejus, quod cuique facere libet, nisi quid jure prohibetur._ _inst._ . . .] [footnote d: edw. iv. c. .] [footnote e: car. ii. st. . c. .] [footnote f: on gov. p. . §. .] the idea and practice of this political or civil liberty flourish in their highest vigour in these kingdoms, where it falls little short of perfection, and can only be lost or destroyed by the folly or demerits of it's owner: the legislature, and of course the laws of england, being peculiarly adapted to the preservation of this inestimable blessing even in the meanest subject. very different from the modern constitutions of other states, on the continent of europe, and from the genius of the imperial law; which in general are calculated to vest an arbitrary and despotic power of controlling the actions of the subject in the prince, or in a few grandees. and this spirit of liberty is so deeply implanted in our constitution, and rooted even in our very soil, that a slave or a negro, the moment he lands in england, falls under the protection of the laws, and with regard to all natural rights becomes _eo instanti_ a freeman[g]. [footnote g: salk. .] the absolute rights of every englishman (which, taken in a political and extensive sense, are usually called their liberties) as they are founded on nature and reason, so they are coeval with our form of government; though subject at times to fluctuate and change: their establishment (excellent as it is) being still human. at some times we have seen them depressed by overbearing and tyrannical princes; at others so luxuriant as even to tend to anarchy, a worse state than tyranny itself, as any government is better than none at all. but the vigour of our free constitution has always delivered the nation from these embarrassments, and, as soon as the convulsions consequent on the struggle have been over, the ballance of our rights and liberties has settled to it's proper level; and their fundamental articles have been from time to time asserted in parliament, as often as they were thought to be in danger. first, by the great charter of liberties, which was obtained, sword in hand, from king john; and afterwards, with some alterations, confirmed in parliament by king henry the third, his son. which charter contained very few new grants; but, as sir edward coke[h] observes, was for the most part declaratory of the principal grounds of the fundamental laws of england. afterwards by the statute called _confirmatio cartarum_[i], whereby the great charter is directed to be allowed as the common law; all judgments contrary to it are declared void; copies of it are ordered to be sent to all cathedral churches, and read twice a year to the people; and sentence of excommunication is directed to be as constantly denounced against all those that by word, deed, or counsel act contrary thereto, or in any degree infringe it. next by a multitude of subsequent corroborating statutes, (sir edward coke, i think, reckons thirty two[k],) from the first edward to henry the fourth. then, after a long interval, by _the petition of right_; which was a parliamentary declaration of the liberties of the people, assented to by king charles the first in the beginning of his reign. which was closely followed by the still more ample concessions made by that unhappy prince to his parliament, before the fatal rupture between them; and by the many salutary laws, particularly the _habeas corpus_ act, passed under charles the second. to these succeeded _the bill of rights_, or declaration delivered by the lords and commons to the prince and princess of orange february ; and afterwards enacted in parliament, when they became king and queen: which declaration concludes in these remarkable words; "and they do claim, demand, and insist upon all and singular the premises, as their undoubted rights and liberties." and the act of parliament itself[l] recognizes "all and singular the rights and liberties asserted and claimed in the said declaration to be the true, antient, and indubitable rights of the people of this kingdom." lastly, these liberties were again asserted at the commencement of the present century, in the _act of settlement_[m], whereby the crown is limited to his present majesty's illustrious house, and some new provisions were added at the same fortunate aera for better securing our religion, laws, and liberties; which the statute declares to be "the birthright of the people of england;" according to the antient doctrine of the common law[n]. [footnote h: inst. proem.] [footnote i: edw. i.] [footnote k: inst. proem.] [footnote l: w. and m. st. . c. .] [footnote m: & w. iii. c. .] [footnote n: plowd. .] thus much for the _declaration_ of our rights and liberties. the rights themselves thus defined by these several statutes, consist in a number of private immunities; which will appear, from what has been premised, to be indeed no other, than either that _residuum_ of natural liberty, which is not required by the laws of society to be sacrificed to public convenience; or else those civil privileges, which society hath engaged to provide, in lieu of the natural liberties so given up by individuals. these therefore were formerly, either by inheritance or purchase, the rights of all mankind; but, in most other countries of the world being now more or less debased and destroyed, they at present may be said to remain, in a peculiar and emphatical manner, the rights of the people of england. and these may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty; and the right of private property: because as there is no other known method of compulsion, or of abridging man's natural free will, but by an infringement or diminution of one or other of these important rights, the preservation of these, inviolate, may justly be said to include the preservation of our civil immunities in their largest and most extensive sense. i. the right of personal security consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. . life is the immediate gift of god, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother's womb. for if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb; or if any one beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the antient law homicide or manslaughter[o]. but at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemesnor[p]. [footnote o: _si aliquis mulierem praegnantem percusserit, vel ei venenum dederit, per quod fecerit abortivam; si puerperium jam formatum fuerit, et maxime si fuerit animatum, facit homicidium._ bracton. _l._ . _c._ .] [footnote p: inst. .] an infant _in ventre sa mere_, or in the mother's womb, is supposed in law to be born for many purposes. it is capable of having a legacy, or a surrender of a copyhold estate made to it. it may have a guardian assigned to it[q]; and it is enabled to have an estate limited to it's use, and to take afterwards by such limitation, as if it were then actually born[r]. and in this point the civil law agrees with ours[s]. [footnote q: stat. car. ii. c. .] [footnote r: stat. & w. iii. c. .] [footnote s: _qui in utero sunt, in jure civili intelliguntur in rerum natura esse, cum de eorum commodo agatur._ _ff._ . . .] . a man's limbs, (by which for the present we only understand those members which may be useful to him in fight, and the loss of which only amounts to mayhem by the common law) are also the gift of the wise creator; to enable man to protect himself from external injuries in a state of nature. to these therefore he has a natural inherent right; and they cannot be wantonly destroyed or disabled without a manifest breach of civil liberty. both the life and limbs of a man are of such high value, in the estimation of the law of england, that it pardons even homicide if committed _se defendendo_, or in order to preserve them. for whatever is done by a man, to save either life or member, is looked upon as done upon the highest necessity and compulsion. therefore if a man through fear of death or mayhem is prevailed upon to execute a deed, or do any other legal act; these, though accompanied with all other the requisite solemnities, are totally void in law, if forced upon him by a well-grounded apprehension of losing his life, or even his limbs, in case of his non-compliance[t]. and the same is also a sufficient excuse for the commission of many misdemesnors, as will appear in the fourth book. the constraint a man is under in these circumstances is called in law _duress_, from the latin _durities_, of which there are two sorts; duress of imprisonment, where a man actually loses his liberty, of which we shall presently speak; and duress _per minas_, where the hardship is only threatened and impending, which is that we are now discoursing of. duress _per minas_ is either for fear of loss of life, or else for fear of mayhem, or loss of limb. and this fear must be upon sufficient reason; "_non_," as bracton expresses it, "_suspicio cujuslibet vani et meticulosi hominis, sed talis qui possit cadere in virum constantem; talis enim debet esse metus, qui in se contineat vitae periculum, aut corporis cruciatum_[u]." a fear of battery, or being beaten, though never so well grounded, is no duress; neither is the fear of having one's house burnt, or one's goods taken away and destroyed; because in these cases, should the threat be performed, a man may have satisfaction by recovering equivalent damages[w]: but no suitable atonement can be made for the loss of life, or limb. and the indulgence shewn to a man under this, the principal, sort of duress, the fear of losing his life or limbs, agrees also with that maxim of the civil law; _ignoscitur ei qui sanguinem suum qualiter qualiter redemptum voluit_[x]. [footnote t: inst. .] [footnote u: _l._ . _c._ .] [footnote w: inst. .] [footnote x: _ff._ . . .] the law not only regards life and member, and protects every man in the enjoyment of them, but also furnishes him with every thing necessary for their support. for there is no man so indigent or wretched, but he may demand a supply sufficient for all the necessities of life, from the more opulent part of the community, by means of the several statutes enacted for the relief of the poor, of which in their proper places. a humane provision; yet, though dictated by the principles of society, discountenanced by the roman laws. for the edicts of the emperor constantine, commanding the public to maintain the children of those who were unable to provide for them, in order to prevent the murder and exposure of infants, an institution founded on the same principle as our foundling hospitals, though comprized in the theodosian code[y], were rejected in justinian's collection. [footnote y: _l._ . _t._ .] these rights, of life and member, can only be determined by the death of the person; which is either a civil or natural death. the civil death commences if any man be banished the realm[z] by the process of the common law, or enters into religion; that is, goes into a monastery, and becomes there a monk professed: in which cases he is absolutely dead in law, and his next heir shall have his estate. for, such banished man is entirely cut off from society; and such a monk, upon his profession, renounces solemnly all secular concerns: and besides, as the popish clergy claimed an exemption from the duties of civil life, and the commands of the temporal magistrate, the genius of the english law would not suffer those persons to enjoy the benefits of society, who secluded themselves from it, and refused to submit to it's regulations[a]. a monk is therefore accounted _civiliter mortuus_, and when he enters into religion may, like other dying men, make his testament and executors; or, if he makes none, the ordinary may grant administration to his next of kin, as if he were actually dead intestate. and such executors and administrators shall have the same power, and may bring the same actions for debts due _to_ the religious, and are liable to the same actions for those due _from_ him, as if he were naturally deceased[b]. nay, so far has this principle been carried, that when one was bound in a bond to an abbot and his successors, and afterwards made his executors and professed himself a monk of the same abbey, and in process of time was himself made abbot thereof; here the law gave him, in the capacity of abbot, an action of debt against his own executors to recover the money due[c]. in short, a monk or religious is so effectually dead in law, that a lease made even to a third person, during the life (generally) of one who afterwards becomes a monk, determines by such his entry into religion: for which reason leases, and other conveyances, for life, are usually made to have and to hold for the term of one's _natural_ life[d]. [footnote z: co. litt. .] [footnote a: this was also a rule in the feodal law, _l._ . _t._ . _desiit esse miles seculi, qui factus est miles christi; nec beneficium pertinet ad eum qui non debet gerere officium_.] [footnote b: litt. §. .] [footnote c: co. litt. _b._] [footnote d: rep. . co. litt. .] this natural life being, as was before observed, the immediate donation of the great creator, cannot legally be disposed of or destroyed by any individual, neither by the person himself nor by any other of his fellow creatures, merely upon their own authority. yet nevertheless it may, by the divine permission, be frequently forfeited for the breach of those laws of society, which are enforced by the sanction of capital punishments; of the nature, restrictions, expedience, and legality of which, we may hereafter more conveniently enquire in the concluding book of these commentaries. at present, i shall only observe, that whenever the _constitution_ of a state vests in any man, or body of men, a power of destroying at pleasure, without the direction of laws, the lives or members of the subject, such constitution is in the highest degree tyrannical: and that whenever any _laws_ direct such destruction for light and trivial causes, such laws are likewise tyrannical, though in an inferior degree; because here the subject is aware of the danger he is exposed to, and may by prudent caution provide against it. the statute law of england does therefore very seldom, and the common law does never, inflict any punishment extending to life or limb, unless upon the highest necessity: and the constitution is an utter stranger to any arbitrary power of killing or maiming the subject without the express warrant of law. "_nullus liber homo_, says the great charter[e], _aliquo modo destruatur, nisi per legale judicium parium suorum aut per legem terrae._" which words, "_aliquo modo destruatur_," according to sir edward coke[f], include a prohibition not only of _killing_, and _maiming_, but also of _torturing_ (to which our laws are strangers) and of every oppression by colour of an illegal authority. and it is enacted by the statute edw. iii. c. . that no man shall be forejudged of life or limb, contrary to the great charter and the law of the land: and again, by statute ed. iii. c. . that no man shall be put to death, without being brought to answer by due process of law. [footnote e: c. .] [footnote f: inst. .] . besides those limbs and members that may be necessary to man, in order to defend himself or annoy his enemy, the rest of his person or body is also entitled by the same natural right to security from the corporal insults of menaces, assaults, beating, and wounding; though such insults amount not to destruction of life or member. . the preservation of a man's health from such practices as may prejudice or annoy it, and . the security of his reputation or good name from the arts of detraction and slander, are rights to which every man is intitled, by reason and natural justice; since without these it is impossible to have the perfect enjoyment of any other advantage or right. but these three last articles (being of much less importance than those which have gone before, and those which are yet to come) it will suffice to have barely mentioned among the rights of persons; referring the more minute discussion of their several branches, to those parts of our commentaries which treat of the infringement of these rights, under the head of personal wrongs. ii. next to personal security, the law of england regards, asserts, and preserves the personal liberty of individuals. this personal liberty consists in the power of loco-motion, of changing situation, or removing one's person to whatsoever place one's own inclination may direct; without imprisonment or restraint, unless by due course of law. concerning which we may make the same observations as upon the preceding article; that it is a right strictly natural; that the laws of england have never abridged it without sufficient cause; and, that in this kingdom it cannot ever be abridged at the mere discretion of the magistrate, without the explicit permission of the laws. here again the language of the great charter[g] is, that no freeman shall be taken or imprisoned, but by the lawful judgment of his equals, or by the law of the land. and many subsequent old statutes[h] expressly direct, that no man shall be taken or imprisoned by suggestion or petition to the king, or his council, unless it be by legal indictment, or the process of the common law. by the petition of right, car. i, it is enacted, that no freeman shall be imprisoned or detained without cause shewn, to which he may make answer according to law. by car. i. c. . if any person be restrained of his liberty by order or decree of any illegal court, or by command of the king's majesty in person, or by warrant of the council board, or of any of the privy council; he shall, upon demand of his counsel, have a writ of _habeas corpus_, to bring his body before the court of king's bench or common pleas; who shall determine whether the cause of his commitment be just, and thereupon do as to justice shall appertain. and by car. ii. c. . commonly called _the habeas corpus act_, the methods of obtaining this writ are so plainly pointed out and enforced, that, so long as this statute remains unimpeached, no subject of england can be long detained in prison, except in those cases in which the law requires and justifies such detainer. and, lest this act should be evaded by demanding unreasonable bail, or sureties for the prisoner's appearance, it is declared by w. & m. st. . c. . that excessive bail ought not to be required. [footnote g: c. .] [footnote h: edw. iii. c. . edw. iii. st. . c. . and edw. iii. c. .] of great importance to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper, (as in france it is daily practiced by the crown) there would soon be an end of all other rights and immunities. some have thought, that unjust attacks, even upon life, or property, at the arbitrary will of the magistrate, are less dangerous to the commonwealth, than such as are made upon the personal liberty of the subject. to bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. but confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government. and yet sometimes, when the state is in real danger, even this may be a necessary measure. but the happiness of our constitution is, that it is not left to the executive power to determine when the danger of the state is so great, as to render this measure expedient. for the parliament only, or legislative power, whenever it sees proper, can authorize the crown, by suspending the _habeas corpus_ act for a short and limited time, to imprison suspected persons without giving any reason for so doing. as the senate of rome was wont to have recourse to a dictator, a magistrate of absolute authority, when they judged the republic in any imminent danger. the decree of the senate, which usually preceded the nomination of this magistrate, "_dent operam consules, nequid respublica detrimenti capiat_," was called the _senatus consultum ultimae necessitatis_. in like manner this experiment ought only to be tried in cases of extreme emergency; and in these the nation parts with it's liberty for a while, in order to preserve it for ever. the confinement of the person, in any wise, is an imprisonment. so that the keeping a man against his will in a private house, putting him in the stocks, arresting or forcibly detaining him in the street, is an imprisonment[i]. and the law so much discourages unlawful confinement, that if a man is under _duress of imprisonment_, which we before explained to mean a compulsion by an illegal restraint of liberty, until he seals a bond or the like; he may alledge this duress, and avoid the extorted bond. but if a man be lawfully imprisoned, and either to procure his discharge, or on any other fair account, seals a bond or a deed, this is not by duress of imprisonment, and he is not at liberty to avoid it[k]. to make imprisonment lawful, it must either be, by process from the courts of judicature, or by warrant from some legal officer, having authority to commit to prison; which warrant must be in writing, under the hand and seal of the magistrate, and express the causes of the commitment, in order to be examined into (if necessary) upon a _habeas corpus_. if there be no cause expressed, the goaler is not bound to detain the prisoner[l]. for the law judges in this respect, saith sir edward coke, like festus the roman governor; that it is unreasonable to send a prisoner, and not to signify withal the crimes alleged against him. [footnote i: inst. .] [footnote k: inst. .] [footnote l: inst. , .] a natural and regular consequence of this personal liberty, is, that every englishman may claim a right to abide in his own country so long as he pleases; and not to be driven from it unless by the sentence of the law. the king indeed, by his royal prerogative, may issue out his writ _ne exeat regnum_, and prohibit any of his subjects from going into foreign parts without licence[m]. this may be necessary for the public service, and safeguard of the commonwealth. but no power on earth, except the authority of parliament, can send any subject of england _out of_ the land against his will; no not even a criminal. for exile, or transportation, is a punishment unknown to the common law; and, wherever it is now inflicted, it is either by the choice of the criminal himself, to escape a capital punishment, or else by the express direction of some modern act of parliament. to this purpose the great charter[n] declares that no freeman shall be banished, unless by the judgment of his peers, or by the law of the land. and by the _habeas corpus_ act, car. ii. c. . (that second _magna carta_, and stable bulwark of our liberties) it is enacted, that no subject of this realm, who is an inhabitant of england, wales, or berwick, shall be sent prisoner into scotland, ireland, jersey, guernsey, or places beyond the seas; (where they cannot have the benefit and protection of the common law) but that all such imprisonments shall be illegal; that the person, who shall dare to commit another contrary to this law, shall be disabled from bearing any office, shall incur the penalty of a praemunire, and be incapable of receiving the king's pardon: and the party suffering shall also have his private action against the person committing, and all his aiders, advisers and abettors, and shall recover treble costs; besides his damages, which no jury shall assess at less than five hundred pounds. [footnote m: f.n.b. .] [footnote n: cap. .] the law is in this respect so benignly and liberally construed for the benefit of the subject, that, though _within_ the realm the king may command the attendance and service of all his liege-men, yet he cannot send any man _out of_ the realm, even upon the public service: he cannot even constitute a man lord deputy or lieutenant of ireland against his will, nor make him a foreign embassador[o]. for this might in reality be no more than an honorable exile. [footnote o: inst. .] iii. the third absolute right, inherent in every englishman, is that of property; which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land. the original of private property is probably founded in nature, as will be more fully explained in the second book of the ensuing commentaries: but certainly the modifications under which we at present find it, the method of conserving it in the present owner, and of translating it from man to man, are entirely derived from society; and are some of those civil advantages, in exchange for which every individual has resigned a part of his natural liberty. the laws of england are therefore, in point of honor and justice, extremely watchful in ascertaining and protecting this right. upon this principle the great charter[p] has declared that no freeman shall be disseised, or divested, of his freehold, or of his liberties, or free customs, but by the judgment of his peers, or by the law of the land. and by a variety of antient statutes[q] it is enacted, that no man's lands or goods shall be seised into the king's hands, against the great charter, and the law of the land; and that no man shall be disinherited, nor put out of his franchises or freehold, unless he be duly brought to answer, and be forejudged by course of law; and if any thing be done to the contrary, it shall be redressed, and holden for none. [footnote p: c. .] [footnote q: edw. iii. c. . edw. iii. st. . c. . edw. iii. c. .] so great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community. if a new road, for instance, were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men, to do this without consent of the owner of the land. in vain may it be urged, that the good of the individual ought to yield to that of the community; for it would be dangerous to allow any private man, or even any public tribunal, to be the judge of this common good, and to decide whether it be expedient or no. besides, the public good is in nothing more essentially interested, than in the protection of every individual's private rights, as modelled by the municipal law. in this, and similar cases the legislature alone can, and indeed frequently does, interpose, and compel the individual to acquiesce. but how does it interpose and compel? not by absolutely stripping the subject of his property in an arbitrary manner; but by giving him a full indemnification and equivalent for the injury thereby sustained. the public is now considered as an individual, treating with an individual for an exchange. all that the legislature does is to oblige the owner to alienate his possessions for a reasonable price; and even this is an exertion of power, which the legislature indulges with caution, and which nothing but the legislature can perform. nor is this the only instance in which the law of the land has postponed even public necessity to the sacred and inviolable rights of private property. for no subject of england can be constrained to pay any aids or taxes, even for the defence of the realm or the support of government, but such as are imposed by his own consent, or that of his representatives in parliament. by the statute edw. i. c. and . it is provided, that the king shall not take any aids or tasks, but by the common assent of the realm. and what that common assent is, is more fully explained by edw. i. st. . cap. . which enacts, that no talliage or aid shall be taken without assent of the arch-bishops, bishops, earls, barons, knights, burgesses, and other freemen of the land[r]: and again by edw. iii. st. . c. . the prelates, earls, barons, and commons, citizens, burgesses, and merchants shall not be charged to make any aid, if it be not by the common assent of the great men and commons in parliament. and as this fundamental law had been shamefully evaded under many succeeding princes, by compulsive loans, and benevolences extorted without a real and voluntary consent, it was made an article in the petition of right car. i, that no man shall be compelled to yield any gift, loan, or benevolence, tax, or such like charge, without common consent by act of parliament. and, lastly, by the statute w. & m. st. . c. . it is declared, that levying money for or to the use of the crown, by pretence of prerogative, without grant of parliament; or for longer time, or in other manner, than the same is or shall be granted, is illegal. [footnote r: see the historical introduction to the great charter, &c, _sub anno_ ; wherein it is shewn that this statute _de talliagio non concedendo_, supposed to have been made in edw. i, is in reality nothing more than a sort of translation into latin of the _confirmatio cartarum_, edw. i, which was originally published in the norman language.] in the three preceding articles we have taken a short view of the principal absolute rights which appertain to every englishman. but in vain would these rights be declared, ascertained, and protected by the dead letter of the laws, if the constitution had provided no other method to secure their actual enjoyment. it has therefore established certain other auxiliary subordinate rights of the subject, which serve principally as barriers to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property. these are, . the constitution, powers, and privileges of parliament, of which i shall treat at large in the ensuing chapter. . the limitation of the king's prerogative, by bounds so certain and notorious, that it is impossible he should exceed them without the consent of the people. of this also i shall treat in it's proper place. the former of these keeps the legislative power in due health and vigour, so as to make it improbable that laws should be enacted destructive of general liberty: the latter is a guard upon the executive power, by restraining it from acting either beyond or in contradiction to the laws, that are framed and established by the other. . a third subordinate right of every englishman is that of applying to the courts of justice for redress of injuries. since the law is in england the supreme arbiter of every man's life, liberty, and property, courts of justice must at all times be open to the subject, and the law be duly administred therein. the emphatical words of _magna carta_[s], spoken in the person of the king, who in judgment of law (says sir edward coke[t]) is ever present and repeating them in all his courts, are these; "_nulli vendemus, nulli negabimus, aut differemus rectum vel justitiam_: and therefore every subject," continues the same learned author, "for injury done to him _in bonis, in terris, vel persona_, by any other subject, be he ecclesiastical or temporal without any exception, may take his remedy by the course of the law, and have justice and right for the injury done to him, freely without sale, fully without any denial, and speedily without delay." it were endless to enumerate all the _affirmative_ acts of parliament wherein justice is directed to be done according to the law of the land: and what that law is, every subject knows; or may know if he pleases: for it depends not upon the arbitrary will of any judge; but is permanent, fixed, and unchangeable, unless by authority of parliament. i shall however just mention a few _negative_ statutes, whereby abuses, perversions, or delays of justice, especially by the prerogative, are restrained. it is ordained by _magna carta_[u], that no freeman shall be outlawed, that is, put out of the protection and benefit of the laws, but according to the law of the land. by edw. iii. c. . and ric. ii. c. . it is enacted, that no commands or letters shall be sent under the great seal, or the little seal, the signet, or privy seal, in disturbance of the law; or to disturb or delay common right: and, though such commandments should come, the judges shall not cease to do right. and by w. & m. st. . c. . it is declared, that the pretended power of suspending, or dispensing with laws, or the execution of laws, by regal authority without consent of parliament, is illegal. [footnote s: c. .] [footnote t: inst. .] [footnote u: c. .] not only the substantial part, or judicial decisions, of the law, but also the formal part, or method of proceeding, cannot be altered but by parliament: for if once those outworks were demolished, there would be no inlet to all manner of innovation in the body of the law itself. the king, it is true, may erect new courts of justice; but then they must proceed according to the old established forms of the common law. for which reason it is declared in the statute car. i. c. . upon the dissolution of the court of starchamber, that neither his majesty, nor his privy council, have any jurisdiction, power, or authority by english bill, petition, articles, libel (which were the course of proceeding in the starchamber, borrowed from the civil law) or by any other arbitrary way whatsoever, to examine, or draw into question, determine or dispose of the lands or goods of any subjects of this kingdom; but that the same ought to be tried and determined in the ordinary courts of justice, and by _course of law_. . if there should happen any uncommon injury, or infringement of the rights beforementioned, which the ordinary course of law is too defective to reach, there still remains a fourth subordinate right appertaining to every individual, namely, the right of petitioning the king, or either house of parliament, for the redress of grievances. in russia we are told[w] that the czar peter established a law, that no subject might petition the throne, till he had first petitioned two different ministers of state. in case he obtained justice from neither, he might then present a third petition to the prince; but upon pain of death, if found to be in the wrong. the consequence of which was, that no one dared to offer such third petition; and grievances seldom falling under the notice of the sovereign, he had little opportunity to redress them. the restrictions, for some there are, which are laid upon petitioning in england, are of a nature extremely different; and while they promote the spirit of peace, they are no check upon that of liberty. care only must be taken, lest, under the pretence of petitioning, the subject be guilty of any riot or tumult; as happened in the opening of the memorable parliament in : and, to prevent this, it is provided by the statute car. ii. st. . c. . that no petition to the king, or either house of parliament, for any alterations in church or state, shall be signed by above twenty persons, unless the matter thereof be approved by three justices of the peace or the major part of the grand jury, in the country; and in london by the lord mayor, aldermen, and common council; nor shall any petition be presented by more than two persons at a time. but under these regulations, it is declared by the statute w. & m. st. . c. . that the subject hath a right to petition; and that all commitments and prosecutions for such petitioning are illegal. [footnote w: montesq. sp. l. . .] . the fifth and last auxiliary right of the subject, that i shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. which is also declared by the same statute w. & m. st. . c. . and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression. in these several articles consist the rights, or, as they are frequently termed, the liberties of englishmen: liberties more generally talked of, than thoroughly understood; and yet highly necessary to be perfectly known and considered by every man of rank or property, lest his ignorance of the points whereon it is founded should hurry him into faction and licentiousness on the one hand, or a pusillanimous indifference and criminal submission on the other. and we have seen that these rights consist, primarily, in the free enjoyment of personal security, of personal liberty, and of private property. so long as these remain inviolate, the subject is perfectly free; for every species of compulsive tyranny and oppression must act in opposition to one or other of these rights, having no other object upon which it can possibly be employed. to preserve these from violation, it is necessary that the constitution of parliaments be supported in it's full vigor; and limits certainly known, be set to the royal prerogative. and, lastly, to vindicate these rights, when actually violated or attacked, the subjects of england are entitled, in the first place, to the regular administration and free course of justice in the courts of law; next to the right of petitioning the king and parliament for redress of grievances; and lastly to the right of having and using arms for self-preservation and defence. and all these rights and liberties it is our birthright to enjoy entire; unless where the laws of our country have laid them under necessary restraints. restraints in themselves so gentle and moderate, as will appear upon farther enquiry, that no man of sense or probity would wish to see them slackened. for all of us have it in our choice to do every thing that a good man would desire to do; and are restrained from nothing, but what would be pernicious either to ourselves or our fellow citizens. so that this review of our situation may fully justify the observation of a learned french author, who indeed generally both thought and wrote in the spirit of genuine freedom[x]; and who hath not scrupled to profess, even in the very bosom of his native country, that the english is the only nation in the world, where political or civil liberty is the direct end of it's constitution. recommending therefore to the student in our laws a farther and more accurate search into this extensive and important title, i shall close my remarks upon it with the expiring wish of the famous father paul to his country, "esto perpetua!" [footnote x: montesq. sp. l. . .] chapter the second. of the parliament. we are next to treat of the rights and duties of persons, as they are members of society, and stand in various relations to each other. these relations are either public or private: and we will first consider those that are public. the most universal public relation, by which men are connected together, is that of government; namely, as governors and governed, or, in other words, as magistrates and people. of magistrates also some are _supreme_, in whom the sovereign power of the state resides; others are _subordinate_, deriving all their authority from the supreme magistrate, accountable to him for their conduct, and acting in an inferior secondary sphere. in all tyrannical governments the supreme magistracy, or the right both of _making_ and of _enforcing_ the laws, is vested in one and the same man, or one and the same body of men; and wherever these two powers are united together, there can be no public liberty. the magistrate may enact tyrannical laws, and execute them in a tyrannical manner, since he is possessed, in quality of dispenser of justice, with all the power which he as legislator thinks proper to give himself. but, where the legislative and executive authority are in distinct hands, the former will take care not to entrust the latter with so large a power, as may tend to the subversion of it's own independence, and therewith of the liberty of the subject. with us therefore in england this supreme power is divided into two branches; the one legislative, to wit, the parliament, consisting of king, lords, and commons; the other executive, consisting of the king alone. it will be the business of this chapter to consider the british parliament; in which the legislative power, and (of course) the supreme and absolute authority of the state, is vested by our constitution. the original or first institution of parliaments is one of those matters that lie so far hidden in the dark ages of antiquity, that the tracing of it out is a thing equally difficult and uncertain. the word, _parliament_, itself (or _colloquium_, as some of our historians translate it) is comparatively of modern date, derived from the french, and signifying the place where they met and conferred together. it was first applied to general assemblies of the states under louis vii in france, about the middle of the twelfth century[a]. but it is certain that, long before the introduction of the norman language into england, all matters of importance were debated and settled in the great councils of the realm. a practice, which seems to have been universal among the northern nations, particularly the germans[b]; and carried by them into all the countries of europe, which they overran at the dissolution of the roman empire. relics of which constitution, under various modifications and changes, are still to be met with in the diets of poland, germany, and sweden, and the assembly of the estates in france; for what is there now called the parliament is only the supreme court of justice, composed of judges and advocates; which neither is in practice, nor is supposed to be in theory, a general council of the realm. [footnote a: mod. un. hist. xxiii. .] [footnote b: _de minoribus rebus principes consultant, de majoribus omnes._ tac. _de mor. germ._ _c._ .] with us in england this general council hath been held immemorially, under the several names of _michel-synoth_, or great council, _michel-gemote_ or great meeting, and more frequently _wittena-gemote_ or the meeting of wise men. it was also stiled in latin, _commune concilium regni_, _magnum concilium regis_, _curia magna_, _conventus magnatum vel procerum_, _assisa generalis_, and sometimes _communitas regni angliae_[c]. we have instances of it's meeting to order the affairs of the kingdom, to make new laws, and to amend the old, or, as fleta[d] expresses it, "_novis injuriis emersis nova constituere remedia_," so early as the reign of ina king of the west saxons, offa king of the mercians, and ethelbert king of kent, in the several realms of the heptarchy. and, after their union, the mirrour[e] informs us, that king alfred ordained for a perpetual usage, that these councils should meet twice in the year, or oftener, if need be, to treat of the government of god's people; how they should keep themselves from sin, should live in quiet, and should receive right. our succeeding saxon and danish monarchs held frequent councils of this sort, as appears from their respective codes of laws; the titles whereof usually speak them to be enacted, either by the king with the advice of his wittena-gemote, or wise men, as, "_haec sunt instituta, quae edgarus rex consilio sapientum suorum instituit_;" or to be enacted by those sages with the advice of the king, as, "_haec sunt judicia, quae sapientes consilio regis ethelstani instituerunt_;" or lastly, to be enacted by them both together, as; "_hae sunt institutiones, quas rex edmundus et episcopi sui cum sapientibus suis instituerunt_." [footnote c: glanvil. _l._ _c._ . _l._ . _c._ .--pref. rep.-- inst. .] [footnote d: _l._ . _c._ .] [footnote e: c. . §. .] there is also no doubt but these great councils were held regularly under the first princes of the norman line. glanvil, who wrote in the reign of henry the second, speaking of the particular amount of an amercement in the sheriff's court, says, it had never yet been ascertained by the general assise, or assembly, but was left to the custom of particular counties[f]. here the general assise is spoken of as a meeting well known, and it's statutes or decisions are put in a manifest contradistinction to customs, or the common law. and in edward the third's time an act of parliament, made in the reign of william the conqueror, was pleaded in the case of the abbey of st edmund's-bury, and judicially allowed by the court[g]. [footnote f: _quanta esse debeat per nullam assisam generalem determinatum est, sed pro consuetudine singulorum comitatuum debetur._ _l._ . _c._ .] [footnote g: year book, edw. iii. .] hence it indisputably appears, that parliaments, or general councils, are coeval with the kingdom itself. how those parliaments were constituted and composed, is another question, which has been matter of great dispute among our learned antiquarians; and, particularly, whether the commons were summoned at all; or, if summoned, at what period they began to form a distinct assembly. but it is not my intention here to enter into controversies of this sort. i hold it sufficient that it is generally agreed, that in the main the constitution of parliament, as it now stands, was marked out so long ago as the seventeenth year of king john, _a.d._ , in the great charter granted by that prince; wherein he promises to summon all arch-bishops, bishops, abbots, earls, and greater barons, personally; and all other tenants in chief under the crown, by the sheriff and bailiffs; to meet at a certain place, with forty days notice, to assess aids and scutages when necessary. and this constitution has subsisted in fact at least from the year , hen. iii: there being still extant writs of that date, to summon knights, citizens, and burgesses to parliament. i proceed therefore to enquire wherein consists this constitution of parliament, as it now stands, and has stood for the space of five hundred years. and in the prosecution of this enquiry, i shall consider, first, the manner and time of it's assembling: secondly, it's constituent parts: thirdly, the laws and customs relating to parliament, considered as one aggregate body: fourthly and fifthly, the laws and customs relating to each house, separately and distinctly taken: sixthly, the methods of proceeding, and of making statutes, in both houses: and lastly, the manner of the parliament's adjournment, prorogation, and dissolution. i. as to the manner and time of assembling. the parliament is regularly to be summoned by the king's writ or letter, issued out of chancery by advice of the privy council, at least forty days before it begins to sit. it is a branch of the royal prerogative, that no parliament can be convened by it's own authority, or by the authority of any, except the king alone. and this prerogative is founded upon very good reason. for, supposing it had a right to meet spontaneously, without being called together, it is impossible to conceive that all the members, and each of the houses, would agree unanimously upon the proper time and place of meeting: and if half of the members met, and half absented themselves, who shall determine which is really the legislative body, the part assembled, or that which stays away? it is therefore necessary that the parliament should be called together at a determinate time and place; and highly becoming it's dignity and independence, that it should be called together by none but one of it's own constituent parts; and, of the three constituent parts, this office can only appertain to the king; as he is a single person, whose will may be uniform and steady; the first person in the nation, being superior to both houses in dignity; and the only branch of the legislature that has a separate existence, and is capable of performing any act at a time when no parliament is in being[h]. nor is it an exception to this rule that, by some modern statutes, on the demise of a king or queen, if there be then no parliament in being, the last parliament revives, and is to sit again for six months, unless dissolved by the successor: for this revived parliament must have been originally summoned by the crown. [footnote h: by motives somewhat similar to these the republic of venice was actuated, when towards the end of the seventh century it abolished the tribunes of the people, who were annually chosen by the several districts of the venetian territory, and constituted a doge in their stead; in whom the executive power of the state at present resides. for which their historians have assigned these, as the principal reasons. . the propriety of having the executive power a part of the legislative, or senate; to which the former annual magistrates were not admitted. . the necessity of having a single person to convoke the great council when separated. mod. un. hist. xxvii. .] it is true, that by a statute, car. i. c. . it was enacted, that if the king neglected to call a parliament for three years, the peers might assemble and issue out writs for the choosing one; and, in case of neglect of the peers, the constituents might meet and elect one themselves. but this, if ever put in practice, would have been liable to all the inconveniences i have just now stated; and the act itself was esteemed so highly detrimental and injurious to the royal prerogative, that it was repealed by statute car. ii. c. . from thence therefore no precedent can be drawn. it is also true, that the convention-parliament, which restored king charles the second, met above a month before his return; the lords by their own authority, and the commons in pursuance of writs issued in the name of the keepers of the liberty of england by authority of parliament: and that the said parliament sat till the twenty ninth of december, full seven months after the restoration; and enacted many laws, several of which are still in force. but this was for the necessity of the thing, which supersedes all law; for if they had not so met, it was morally impossible that the kingdom should have been settled in peace. and the first thing done after the king's return, was to pass an act declaring this to be a good parliament, notwithstanding the defect of the king's writs[i]. so that, as the royal prerogative was chiefly wounded by their so meeting, and as the king himself, who alone had a right to object, consented to wave the objection, this cannot be drawn into an example in prejudice of the rights of the crown. besides we should also remember, that it was at that time a great doubt among the lawyers[k], whether even this healing act made it a good parliament; and held by very many in the negative: though it seems to have been too nice a scruple. [footnote i: stat. car. ii. c. .] [footnote k: sid. .] it is likewise true, that at the time of the revolution, _a.d._ , the lords and commons by their own authority, and upon the summons of the prince of orange, (afterwards king william) met in a convention and therein disposed of the crown and kingdom. but it must be remembered, that this assembling was upon a like principle of necessity as at the restoration; that is, upon an apprehension that king james the second had abdicated the government, and that the throne was thereby vacant: which apprehension of theirs was confirmed by their concurrent resolution, when they actually came together. and in such a case as the palpable vacancy of a throne, it follows _ex necessitate rei_, that the form of the royal writs must be laid aside, otherwise no parliament can ever meet again. for, let us put another possible case, and suppose, for the sake of argument, that the whole royal line should at any time fail, and become extinct, which would indisputably vacate the throne: in this situation it seems reasonable to presume, that the body of the nation, consisting of lords and commons, would have a right to meet and settle the government; otherwise there must be no government at all. and upon this and no other principle did the convention in assemble. the vacancy of the throne was precedent to their meeting without any royal summons, not a consequence of it. they did not assemble without writ, and then make the throne vacant; but the throne being previously vacant by the king's abdication, they assembled without writ, as they must do if they assembled at all. had the throne been full, their meeting would not have been regular; but, as it was really empty, such meeting became absolutely necessary. and accordingly it is declared by statute w. & m. st. . c. . that this convention was really the two houses of parliament, notwithstanding the want of writs or other defects of form. so that, notwithstanding these two capital exceptions, which were justifiable only on a principle of necessity, (and each of which, by the way, induced a revolution in the government) the rule laid down is in general certain, that the king, only, can convoke a parliament. and this by the antient statutes of the realm[l], he is bound to do every year, or oftener, if need be. not that he is, or ever was, obliged by these statutes to call a _new_ parliament every year; but only to permit a parliament to sit annually for the redress of grievances, and dispatch of business, _if need be_. these last words are so loose and vague, that such of our monarchs as were enclined to govern without parliaments, neglected the convoking them, sometimes for a very considerable period, under pretence that there was no need of them. but, to remedy this, by the statute car. ii. c. . it is enacted, that the sitting and holding of parliaments shall not be intermitted above three years at the most. and by the statute w. & m. st. . c. . it is declared to be one of the rights of the people, that for redress of all grievances, and for the amending, strengthening, and preserving the laws, parliaments ought to be held _frequently_. and this indefinite _frequency_ is again reduced to a certainty by statute w. & m. c. . which enacts, as the statute of charles the second had done before, that a new parliament shall be called within three years[m] after the determination of the former. [footnote l: edw. iii. c. . and edw. iii. c. .] [footnote m: this is the same period, that is allowed in sweden for intermitting their general diets, or parliamentary assemblies. mod. un. hist. xxxiii. .] ii. the constituent parts of a parliament are the next objects of our enquiry. and these are, the king's majesty, sitting there in his royal political capacity, and the three estates of the realm; the lords spiritual, the lords temporal, (who sit, together with, the king, in one house) and the commons, who sit by themselves in another[n]. and the king and these three estates, together, form the great corporation or body politic of the kingdom, of which the king is said to be _caput, principium, et finis_. for upon their coming together the king meets them, either in person or by representation; without which there can be no beginning of a parliament[o]; and he also has alone the power of dissolving them. [footnote n: inst. .] [footnote o: inst. .] it is highly necessary for preserving the ballance of the constitution, that the executive power should be a branch, though not the whole, of the legislature. the total union of them, we have seen, would be productive of tyranny; the total disjunction of them for the present, would in the end produce the same effects, by causing that union, against which it seems to provide. the legislature would soon become tyrannical, by making continual encroachments, and gradually assuming to itself the rights of the executive power. thus the long parliament of charles the first, while it acted in a constitutional manner, with the royal concurrence, redressed many heavy grievances and established many salutary laws. but when the two houses assumed the power of legislation, in exclusion of the royal authority, they soon after assumed likewise the reins of administration; and, in consequence of these united powers, overturned both church and state, and established a worse oppression than any they pretended to remedy. to hinder therefore any such encroachments, the king is himself a part of the parliament: and, as this is the reason of his being so, very properly therefore the share of legislation, which the constitution has placed in the crown, consists in the power of _rejecting_, rathar [transcriber's note: rather] than _resolving_; this being sufficient to answer the end proposed. for we may apply to the royal negative, in this instance, what cicero observes of the negative of the roman tribunes, that the crown has not any power of _doing_ wrong, but merely of _preventing_ wrong from being done[p]. the crown cannot begin of itself any alterations in the present established law; but it may approve or disapprove of the alterations suggested and consented to by the two houses. the legislative therefore cannot abridge the executive power of any rights which it now has by law, without it's own consent; since the law must perpetually stand as it now does, unless all the powers will agree to alter it. and herein indeed consists the true excellence of the english government, that all the parts of it form a mutual check upon each other. in the legislature, the people are a check upon the nobility, and the nobility a check upon the people; by the mutual privilege of rejecting what the other has resolved: while the king is a check upon both, which preserves the executive power from encroachments. and this very executive power is again checked, and kept within due bounds by the two houses, through the privilege they have of enquiring into, impeaching, and punishing the conduct (not indeed of the king, which would destroy his constitutional independence; but, which is more beneficial to the public) of his evil and pernicious counsellors. thus every branch of our civil polity supports and is supported, regulates and is regulated, by the rest; for the two houses naturally drawing in two directions of opposite interest, and the prerogative in another still different from them both, they mutually keep each other from exceeding their proper limits; while the whole is prevented from separation, and artificially connected together by the mixed nature of the crown, which is a part of the legislative, and the sole executive magistrate. like three distinct powers in mechanics, they jointly impel the machine of government in a direction different from what either, acting by themselves, would have done; but at the same time in a direction partaking of each, and formed out of all; a direction which constitutes the true line of the liberty and happiness of the community. [footnote p: _sulla--tribunis plebis sua lege injuriae faciendae potestatem ademit, auxilii ferendi reliquit._ _de ll._ . .] let us now consider these constituent parts of the sovereign power, or parliament, each in a separate view. the king's majesty will be the subject of the next, and many subsequent chapters, to which we must at present refer. the next in order are the spiritual lords. these consist of two arch-bishops, and twenty four bishops; and, at the dissolution of monasteries by henry viii, consisted likewise of twenty six mitred abbots, and two priors[q]: a very considerable body, and in those times equal in number to the temporal nobility[r]. all these hold, or are supposed to hold, certain antient baronies under the king: for william the conqueror thought proper to change the spiritual tenure, of frankalmoign or free alms, under which the bishops held their lands during the saxon government, into the feodal or norman tenure by barony; which subjected their estates to all civil charges and assessments, from which they were before exempt[s]: and, in right of succession to those baronies, the bishops obtained their seat in the house of lords[t]. but though these lords spiritual are in the eye of the law a distinct estate from the lords temporal, and are so distinguished in all our acts of parliament, yet in practice they are usually blended together under the one name of _the lords_; they intermix in their votes; and the majority of such intermixture binds both estates. for if a bill should pass their house, there is no doubt of it's being effectual, though every lord spiritual should vote against it; of which selden[u], and sir edward coke[w], give many instances: as, on the other hand, i presume it would be equally good, if the lords temporal present were inferior to the bishops in number, and every one of those temporal lords gave his vote to reject the bill; though this sir edward coke seems to doubt of[x]. [footnote q: seld. tit. hon. . . .] [footnote r: co. litt. .] [footnote s: gilb. hist. exch. . spelm. w.i. .] [footnote t: glanv. . . co. litt. . seld. tit. hon. . . .] [footnote u: baronage. p. . c. .] [footnote w: inst. , , .] [footnote x: inst. .] the lords temporal consist of all the peers of the realm (the bishops not being in strictness held to be such, but merely lords of parliament[y]) by whatever title of nobility distinguished; dukes, marquisses, earls, viscounts, or barons; of which dignities we shall speak more hereafter. some of these sit by descent, as do all antient peers; some by creation, as do all new-made ones; others, since the union with scotland, by election, which is the case of the sixteen peers, who represent the body of the scots nobility. their number is indefinite, and may be encreased at will by the power of the crown: and once, in the reign of queen anne, there was an instance of creating no less than twelve together; in contemplation of which, in the reign of king george the first, a bill passed the house of lords, and was countenanced by the then ministry, for limiting the number of the peerage. this was thought by some to promise a great acquisition to the constitution, by restraining the prerogative from gaining the ascendant in that august assembly, by pouring in at pleasure an unlimited number of new created lords. but the bill was ill-relished and miscarried in the house of commons, whose leading members were then desirous to keep the avenues to the other house as open and easy as possible. [footnote y: staunford. p.c. .] the distinction of rank and honours is necessary in every well-governed state; in order to reward such as are eminent for their services to the public, in a manner the most desirable to individuals, and yet without burthen to the community; exciting thereby an ambitious yet laudable ardor, and generous emulation in others. and emulation, or virtuous ambition, is a spring of action which, however dangerous or invidious in a mere republic or under a despotic sway, will certainly be attended with good effects under a free monarchy; where, without destroying it's existence, it's excesses may be continually restrained by that superior power, from which all honour is derived. such a spirit, when nationally diffused, gives life and vigour to the community; it sets all the wheels of government in motion, which under a wise regulator, may be directed to any beneficial purpose; and thereby every individual may be made subservient to the public good, while he principally means to promote his own particular views. a body of nobility is also more peculiarly necessary in our mixed and compounded constitution, in order to support the rights of both the crown and the people, by forming a barrier to withstand the encroachments of both. it creates and preserves that gradual scale of dignity, which proceeds from the peasant to the prince; rising like a pyramid from a broad foundation, and diminishing to a point as it rises. it is this ascending and contracting proportion that adds stability to any government; for when the departure is sudden from one extreme to another, we may pronounce that state to be precarious. the nobility therefore are the pillars, which are reared from among the people, more immediately to support the throne; and if that falls, they must also be buried under it's ruins. accordingly, when in the last century the commons had determined to extirpate monarchy, they also voted the house of lords to be useless and dangerous. and since titles of nobility are thus expedient in the state, it is also expedient that their owners should form an independent and separate branch of the legislature. if they were confounded with the mass of the people, and like them had only a vote in electing representatives, their privileges would soon be borne down and overwhelmed by the popular torrent, which would effectually level all distinctions. it is therefore highly necessary that the body of nobles should have a distinct assembly, distinct deliberations, and distinct powers from the commons. the commons consist of all such men of any property in the kingdom as have not seats in the house of lords; every one of which has a voice in parliament, either personally, or by his representatives. in a free state, every man, who is supposed a free agent, ought to be, in some measure, his own governor; and therefore a branch at least of the legislative power should reside in the whole body of the people. and this power, when the territories of the state are small and it's citizens easily known, should be exercised by the people in their aggregate or collective capacity, as was wisely ordained in the petty republics of greece, and the first rudiments of the roman state. but this will be highly inconvenient, when the public territory is extended to any considerable degree, and the number of citizens is encreased. thus when, after the social war, all the burghers of italy were admitted free citizens of rome, and each had a vote in the public assemblies, it became impossible to distinguish the spurious from the real voter, and from that time all elections and popular deliberations grew tumultuous and disorderly; which paved the way for marius and sylla, pompey and caesar, to trample on the liberties of their country, and at last to dissolve the commonwealth. in so large a state as ours it is therefore very wisely contrived, that the people should do that by their representatives, which it is impracticable to perform in person: representatives, chosen by a number of minute and separate districts, wherein all the voters are, or easily may be, distinguished. the counties are therefore represented by knights, elected by the proprietors of lands; the cities and boroughs are represented by citizens and burgesses, chosen by the mercantile part or supposed trading interest of the nation; much in the same manner as the burghers in the diet of sweden are chosen by the corporate towns, stockholm sending four, as london does with us, other cities two, and some only one[z]. the number of english representatives is , and of scots ; in all . and every member, though chosen by one particular district, when elected and returned serves for the whole realm. for the end of his coming thither is not particular, but general; not barely to advantage his constituents, but the _common_ wealth; to advise his majesty (as appears from the writ of summons[a]) "_de communi consilio super negotiis quibusdam arduis et urgentibus, regem, statum et defensionem regni angliae et ecclesiae anglicanae concernentibus_." and therefore he is not bound, like a deputy in the united provinces, to consult with, or take the advice, of his constituents upon any particular point, unless he himself thinks it proper or prudent so to do. [footnote z: mod. un. hist. xxxiii. .] [footnote a: inst. .] these are the constituent parts of a parliament, the king, the lords spiritual and temporal, and the commons. parts, of which each is so necessary, that the consent of all three is required to make any new law that shall bind the subject. whatever is enacted for law by one, or by two only, of the three is no statute; and to it no regard is due, unless in matters relating to their own privileges. for though, in the times of madness and anarchy, the commons once passed a vote[b], "that whatever is enacted or declared for law by the commons in parliament assembled hath the force of law; and all the people of this nation are concluded thereby, although the consent and concurrence of the king or house of peers be not had thereto;" yet, when the constitution was restored in all it's forms, it was particularly enacted by statute car. ii. c. . that if any person shall maliciously or advisedly affirm, that both or either of the houses of parliament have any legislative authority without the king, such person shall incur all the penalties of a praemunire. [footnote b: jan. .] iii. we are next to examine the laws and customs relating to parliament, thus united together and considered as one aggregate body. the power and jurisdiction of parliament, says sir edward coke[c], is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds. and of this high court he adds, it may be truly said "_si antiquitatem spectes, est vetustissima; si dignitatem, est honoratissima; si juridictionem, est capacissima_." it hath sovereign and uncontrolable authority in making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical, or temporal, civil, military, maritime, or criminal: this being the place where that absolute despotic power, which must in all governments reside somewhere, is entrusted by the constitution of these kingdoms. all mischiefs and grievances, operations and remedies, that transcend the ordinary course of the laws, are within the reach of this extraordinary tribunal. it can regulate or new model the succession to the crown; as was done in the reign of henry viii and william iii. it can alter the established religion of the land; as was done in a variety of instances, in the reigns of king henry viii and his three children. it can change and create afresh even the constitution of the kingdom and of parliaments themselves; as was done by the act of union, and the several statutes for triennial and septennial elections. it can, in short, do every thing that is not naturally impossible; and therefore some have not scrupled to call it's power, by a figure rather too bold, the omnipotence of parliament. true it is, that what they do, no authority upon earth can undo. so that it is a matter most essential to the liberties of this kingdom, that such members be delegated to this important trust, as are most eminent for their probity, their fortitude, and their knowlege; for it was a known apothegm of the great lord treasurer burleigh, "that england could never be ruined but by a parliament:" and, as sir matthew hale observes[d], this being the highest and greatest court, over which none other can have jurisdiction in the kingdom, if by any means a misgovernment should any way fall upon it, the subjects of this kingdom are left without all manner of remedy. to the same purpose the president montesquieu, though i trust too hastily, presages[e]; that as rome, sparta, and carthage have lost their liberty and perished, so the constitution of england will in time lose it's liberty, will perish: it will perish, whenever the legislative power shall become more corrupt than the executive. [footnote c: inst. .] [footnote d: of parliaments, .] [footnote e: sp. l. . .] it must be owned that mr locke[f], and other theoretical writers, have held, that "there remains still inherent in the people a supreme power to remove or alter the legislative, when they find the legislative act contrary to the trust reposed in them: for when such trust is abused, it is thereby forfeited, and devolves to those who gave it." but however just this conclusion may be in theory, we cannot adopt it, nor argue from it, under any dispensation of government at present actually existing. for this devolution of power, to the people at large, includes in it a dissolution of the whole form of government established by that people, reduces all the members to their original state of equality, and by annihilating the sovereign power repeals all positive laws whatsoever before enacted. no human laws will therefore suppose a case, which at once must destroy all law, and compel men to build afresh upon a new foundation; nor will they make provision for so desperate an event, as must render all legal provisions ineffectual. so long therefore as the english constitution lasts, we may venture to affirm, that the power of parliament is absolute and without control. [footnote f: on gov. p. . §. , .] in order to prevent the mischiefs that might arise, by placing this extensive authority in hands that are either incapable, or else improper, to manage it, it is provided that no one shall sit or vote in either house of parliament, unless he be twenty one years of age. this is expressly declared by statute & w. iii. c. . with regard to the house of commons; though a minor was incapacitated before from sitting in either house, by the law and custom of parliament[g]. to prevent crude innovations in religion and government, it is enacted by statute car. ii. st. . and geo. i. c. . that no member shall vote or sit in either house, till he hath in the presence of the house taken the oaths of allegiance, supremacy, and abjuration, and subscribed and repeated the declaration against transubstantiation, and invocation of saints, and the sacrifice of the mass. to prevent dangers that may arise to the kingdom from foreign attachments, connexions, or dependencies, it is enacted by the & w. iii. c. . that no alien, born out of the dominions of the crown of great britain, even though he be naturalized, shall be capable of being a member of either house of parliament. [footnote g: inst. .] farther: as every court of justice hath laws and customs for it's direction, some the civil and canon, some the common law, others their own peculiar laws and customs, so the high court of parliament hath also it's own peculiar law, called the _lex et consuetudo parliamenti_; a law which sir edward coke[h] observes, is "_ab omnibus quaerenda, a multis ignorata, a paucis cognita_." it will not therefore be expected that we should enter into the examination of this law, with any degree of minuteness; since, as the same learned author assures us[i], it is much better to be learned out of the rolls of parliament, and other records, and by precedents, and continual experience, than can be expressed by any one man. it will be sufficient to observe, that the whole of the law and custom of parliament has it's original from this one maxim; "that whatever matter arises concerning either house of parliament, ought to be examined, discussed, and adjudged in that house to which it relates, and not elsewhere." hence, for instance, the lords will not suffer the commons to interfere in settling a claim of peerage; the commons will not allow the lords to judge of the election of a burgess; nor will either house permit the courts of law to examine the merits of either case. but the maxims upon which they proceed, together with their method of proceeding, rest entirely in the breast of the parliament itself; and are not defined and ascertained by any particular stated laws. [footnote h: inst. .] [footnote i: inst. .] the _privileges_ of parliament are likewise very large and indefinite; which has occasioned an observation, that the principal privilege of parliament consisted in this, that it's privileges were not certainly known to any but the parliament itself. and therefore when in hen. vi the house of lords propounded a question to the judges touching the privilege of parliament, the chief justice, in the name of his brethren, declared, "that they ought not to make answer to that question; for it hath not been used aforetime that the justices should in any wise determine the privileges of the high court of parliament; for it is so high and mighty in his nature, that it may make law; and that which is law, it may make no law; and the determination and knowlege of that privilege belongs to the lords of parliament, and not to the justices[k]." [transcriber's note: missing end quotation mark added] privilege of parliament was principally established, in order to protect it's members not only from being molested by their fellow-subjects, but also more especially from being oppressed by the power of the crown. if therefore all the privileges of parliament were once to be set down and ascertained, and no privilege to be allowed but what was so defined and determined, it were easy for the executive power to devise some new case, not within the line of privilege, and under pretence thereof to harass any refractory member and violate the freedom of parliament. the dignity and independence of the two houses are therefore in great measure preserved by keeping their privileges indefinite. some however of the more notorious privileges of the members of either house are, privilege of speech, of person, of their domestics, and of their lands and goods. as to the first, privilege of speech, it is declared by the statute w. & m. st. . c. . as one of the liberties of the people, "that the freedom of speech, and debates, and proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament." and this freedom of speech is particularly demanded of the king in person, by the speaker of the house of commons, at the opening of every new parliament. so likewise are the other privileges, of person, servants, lands and goods; which are immunities as antient as edward the confessor, in whose laws[l] we find this precept. "_ad synodos venientibus, sive summoniti sint, sive per se quid agendum habuerint, sit summa pax_:" and so too, in the old gothic constitutions, "_extenditur haec pax et securitas ad quatuordecim dies, convocato regni senatu_[m]." this includes not only privilege from illegal violence, but also from legal arrests, and seisures by process from the courts of law. to assault by violence a member of either house, or his menial servants, is a high contempt of parliament, and there punished with the utmost severity. it has likewise peculiar penalties annexed to it in the courts of law, by the statutes hen. iv. c. . and hen. vi. c. . neither can any member of either house be arrested and taken into custody, nor served with any process of the courts of law; nor can his menial servants be arrested; nor can any entry be made on his lands; nor can his goods be distrained or seised; without a breach of the privilege of parliament. these privileges however, which derogate from the common law, being only indulged to prevent the member's being diverted from the public business, endure no longer than the session of parliament, save only as to the freedom of his person: which in a peer is for ever sacred and inviolable; and in a commoner for forty days after every prorogation, and forty days before the next appointed meeting[n]; which is now in effect as long as the parliament subsists, it seldom being prorogued for more than fourscore days at a time. but this privilege of person does not hold in crimes of such public malignity as treason, felony, or breach of the peace[o]; or rather perhaps in such crimes for which surety of the peace may be required. as to all other privileges which obstruct the ordinary course of justice, they cease by the statutes w. iii. c. . and geo. ii. c. . immediately after the dissolution or prorogation of the parliament, or adjournment of the houses for above a fortnight; and during these recesses a peer, or member of the house of commons, may be sued like an ordinary subject, and in consequence of such suits may be dispossessed of his lands and goods. in these cases the king has also his prerogative: he may sue for his debts, though not arrest the person of a member, during the sitting of parliament; and by statute & ann. c. . a member may be sued during the sitting of parliament for any misdemesnor or breach of trust in a public office. likewise, for the benefit of commerce, it is provided by statute geo. iii. c. , that any trader, having privilege of parliament, may be served with legal process for any just debt, (to the amount of _l._) and unless he makes satisfaction within two months, it shall be deemed an act of bankruptcy; and that commissions of bankrupt may be issued against such privileged traders, in like manner as against any other. [footnote k: seld. baronage. part. . c. .] [footnote l: _cap._ .] [footnote m: stiernh. _de jure goth._ _l._ . _c._ .] [footnote n: lev. .] [footnote o: inst. .] these are the general heads of the laws and customs relating to parliament, considered as one aggregate body. we will next proceed to iv. the laws and customs relating to the house of lords in particular. these, if we exclude their judicial capacity, which will be more properly treated of in the third and fourth books of these commentaries, will take up but little of our time. one very antient privilege is that declared by the charter of the forest[p], confirmed in parliament hen. iii; viz. that every lord spiritual or temporal summoned to parliament, and passing through the king's forests, may, both in going and returning, kill one or two of the king's deer without warrant; in view of the forester, if he be present; or on blowing a horn if he be absent, that he may not seem to take the king's venison by stealth. [footnote p: cap. .] in the next place they have a right to be attended, and constantly are, by the judges of the court of king's bench and commonpleas, and such of the barons of the exchequer as are of the degree of the coif, or have been made serjeants at law; as likewise by the masters of the court of chancery; for their advice in point of law, and for the greater dignity of their proceedings. the secretaries of state, the attorney and solicitor general, and the rest of the king's learned counsel being serjeants, were also used to attend the house of peers, and have to this day their regular writs of summons issued out at the beginning of every parliament[q]: but, as many of them have of late years been members of the house of commons, their attendance is fallen into disuse. [footnote q: stat. hen. viii. c. . smith's commonw. b. . c. . moor. . inst. . hale of parl. .] another privilege is, that every peer, by licence obtained from the king, may make another lord of parliament his proxy, to vote for him in his absence[r]. a privilege which a member of the other house can by no means have, as he is himself but a proxy for a multitude of other people[s]. [footnote r: seld. baronage. p. . c. .] [footnote s: inst. .] each peer has also a right, by leave of the house, when a vote passes contrary to his sentiments, to enter his dissent on the journals of the house, with the reasons for such dissent; which is usually stiled his protest. all bills likewise, that may in their consequences any way affect the rights of the peerage, are by the custom of parliament to have their first rise and beginning in the house of peers, and to suffer no changes or amendments in the house of commons. there is also one statute peculiarly relative to the house of lords; ann. c. . which regulates the election of the sixteen representative peers of north britain, in consequence of the twenty second and twenty third articles of the union: and for that purpose prescribes the oaths, &c, to be taken by the electors; directs the mode of balloting; prohibits the peers electing from being attended in an unusual manner; and expressly provides, that no other matter shall be treated of in that assembly, save only the election, on pain of incurring a praemunire. v. the peculiar laws and customs of the house of commons relate principally to the raising of taxes, and the elections of members to serve in parliament. first, with regard to taxes: it is the antient indisputable privilege and right of the house of commons, that all grants of subsidies or parliamentary aids do begin in their house, and are first bestowed by them[t]; although their grants are not effectual to all intents and purposes, until they have the assent of the other two branches of the legislature. the general reason, given for this exclusive privilege of the house of commons, is, that the supplies are raised upon the body of the people, and therefore it is proper that they alone should have the right of taxing themselves. this reason would be unanswerable, if the commons taxed none but themselves: but it is notorious, that a very large share of property is in the possession of the house of lords; that this property is equally taxable, and taxed, as the property of the commons; and therefore the commons not being the _sole_ persons taxed, this cannot be the reason of their having the _sole_ right of raising and modelling the supply. the true reason, arising from the spirit of our constitution, seems to be this. the lords being a permanent hereditary body, created at pleasure by the king, are supposed more liable to be influenced by the crown, and when once influenced to continue so, than the commons, who are a temporary elective body, freely nominated by the people. it would therefore be extremely dangerous, to give them any power of framing new taxes for the subject: it is sufficient, that they have a power of rejecting, if they think the commons too lavish or improvident in their grants. but so reasonably jealous are the commons of this valuable privilege, that herein they will not suffer the other house to exert any power but that of rejecting; they will not permit the least alteration or amendment to be made by the lords to the mode of taxing the people by a money bill; under which appellation are included all bills, by which money is directed to be raised upon the subject, for any purpose or in any shape whatsoever; either for the exigencies of government, and collected from the kingdom in general, as the land tax; or for private benefit, and collected in any particular district; as by turnpikes, parish rates, and the like. yet sir matthew hale[u] mentions one case, founded on the practice of parliament in the reign of henry vi[w], wherein he thinks the lords may alter a money bill; and that is, if the commons grant a tax, as that of tonnage and poundage, for _four_ years; and the lords alter it to a less time, as for _two_ years; here, he says, the bill need not be sent back to the commons for their concurrence, but may receive the royal assent without farther ceremony; for the alteration of the lords is consistent with the grant of the commons. but such an experiment will hardly be repeated by the lords, under the present improved idea of the privilege of the house of commons: and, in any case where a money bill is remanded to the commons, all amendments in the mode of taxation are sure to be rejected. [footnote t: inst. .] [footnote u: on parliaments, , .] [footnote w: year book, hen. vi. .] next, with regard to the elections of knights, citizens, and burgesses; we may observe that herein consists the exercise of the democratical part of our constitution: for in a democracy there can be no exercise of sovereignty but by suffrage, which is the declaration of the people's will. in all democracies therefore it is of the utmost importance to regulate by whom, and in what manner, the suffrages are to be given. and the athenians were so justly jealous of this prerogative, that a stranger, who interfered in the assemblies of the people, was punished by their laws with death: because such a man was esteemed guilty of high treason, by usurping those rights of sovereignty, to which he had no title. in england, where the people do not debate in a collective body but by representation, the exercise of this sovereignty consists in the choice of representatives. the laws have therefore very strictly guarded against usurpation or abuse of this power, by many salutary provisions; which may be reduced to these three points, . the qualifications of the electors. . the qualifications of the elected. . the proceedings at elections. . as to the qualifications of the electors. the true reason of requiring any qualification, with regard to property, in voters, is to exclude such persons as are in so mean a situation that they are esteemed to have no will of their own. if these persons had votes, they would be tempted to dispose of them under some undue influence or other. this would give a great, an artful, or a wealthy man, a larger share in elections than is consistent with general liberty. if it were probable that every man would give his vote freely, and without influence of any kind, then, upon the true theory and genuine principles of liberty, every member of the community, however poor, should have a vote in electing those delegates, to whose charge is committed the disposal of his property, his liberty, and his life. but, since that can hardly be expected in persons of indigent fortunes, or such as are under the immediate dominion of others, all popular states have been obliged to establish certain qualifications; whereby some, who are suspected to have no will of their own, are excluded from voting, in order to set other individuals, whose wills may be supposed independent, more thoroughly upon a level with each other. and this constitution of suffrages is framed upon a wiser principle than either of the methods of voting, by centuries, or by tribes, among the romans. in the method by centuries, instituted by servius tullius, it was principally property, and not numbers that turned the scale: in the method by tribes, gradually introduced by the tribunes of the people, numbers only were regarded and property entirely overlooked. hence the laws passed by the former method had usually too great a tendency to aggrandize the patricians or rich nobles; and those by the latter had too much of a levelling principle. our constitution steers between the two extremes. only such as are entirely excluded, as can have no will of their own: there is hardly a free agent to be found, but what is entitled to a vote in some place or other in the kingdom. nor is comparative wealth, or property, entirely disregarded in elections; for though the richest man has only one vote at one place, yet if his property be at all diffused, he has probably a right to vote at more places than one, and therefore has many representatives. this is the spirit of our constitution: not that i assert it is in fact quite so perfect as i have here endeavoured to describe it; for, if any alteration might be wished or suggested in the present frame of parliaments, it should be in favour of a more complete representation of the people. but to return to our qualifications; and first those of electors for knights of the shire. . by statute hen. vi. c. . and hen. vi. c. . the knights of the shires shall be chosen of people dwelling in the same counties; whereof every man shall have freehold to the value of forty shillings by the year within the county; which by subsequent statutes is to be clear of all charges and deductions, except parliamentary and parochial taxes. the knights of shires are the representatives of the landholders, or landed interest, of the kingdom: their electors must therefore have estates in lands or tenements, within the county represented: these estates must be freehold, that is, for term of life at least; because beneficial leases for long terms of years were not in use at the making of these statutes, and copyholders were then little better than villeins, absolutely dependent upon their lord: this freehold must be of forty shillings annual value; because that sum would then, with proper industry, furnish all the necessaries of life, and render the freeholder, if he pleased, an independent man. for bishop fleetwood, in his _chronicon pretiosum_ written about sixty years since, has fully proved forty shillings in the reign of henry vi to have been equal to twelve pounds _per annum_ in the reign of queen anne; and, as the value of money is very considerably lowered since the bishop wrote, i think we may fairly conclude, from this and other circumstances, that what was equivalent to twelve pounds in his days is equivalent to twenty at present. the other less important qualifications of the electors for counties in england and wales may be collected from the statutes cited in the margin[x]; which direct, . that no person under twenty one years of age shall be capable of voting for any member. this extends to all sorts of members, as well for boroughs as counties; as does also the next, viz. . that no person convicted of perjury, or subornation of perjury, shall be capable of voting in any election. . that no person shall vote in right of any freehold, granted to him fraudulently to qualify him to vote. fraudulent grants are such as contain an agreement to reconvey, or to defeat the estate granted; which agreements are made void, and the estate is absolutely vested in the person to whom it is so granted. and, to guard the better against such frauds, it is farther provided, . that every voter shall have been in the actual possession, or receipt of the profits, of his freehold to his own use for twelve calendar months before; except it came to him by descent, marriage, marriage settlement, will, or promotion to a benefice or office. . that no person shall vote in respect of an annuity or rentcharge, unless registered with the clerk of the peace twelve calendar months before. . that in mortgaged or trust-estates, the person in possession, under the abovementioned restrictions, shall have the vote. . that only one person shall be admitted to vote for any one house or tenement, to prevent the splitting of freeholds. . that no estate shall qualify a voter, unless the estate has been assessed to some land tax aid, at least twelve months before the election. . that no tenant by copy of court roll shall be permitted to vote as a freeholder. thus much for the electors in counties. [footnote x: & w. iii. c. . ann. c. . geo. ii. c. . geo. ii. c. . geo. ii. c. . geo. iii. c. .] as for the electors of citizens and burgesses, these are supposed to be the mercantile part or trading interest of this kingdom. but as trade is of a fluctuating nature, and seldom long fixed in a place, it was formerly left to the crown to summon, _pro re nata_, the most flourishing towns to send representatives to parliament. so that as towns encreased in trade, and grew populous, they were admitted to a share in the legislature. but the misfortune is, that the deserted boroughs continued to be summoned, as well as those to whom their trade and inhabitants were transferred; except a few which petitioned to be eased of the expence, then usual, of maintaining their members: four shillings a day being allowed for a knight of the shire, and two shillings for a citizen or burgess; which was the rate of wages established in the reign of edward iii[y]. hence the members for boroughs now bear above a quadruple proportion to those for counties, and the number of parliament men is increased since fortescue's time, in the reign of henry the sixth, from to upwards of , exclusive of those for scotland. the universities were in general not empowered to send burgesses to parliament; though once, in edw. i. when a parliament was summoned to consider of the king's right to scotland, there were issued writs, which required the university of oxford to send up four or five, and that of cambridge two or three, of their most discreet and learned lawyers for that purpose[z]. but it was king james the first, who indulged them with the permanent privilege to send constantly two of their own body; to serve for those students who, though useful members of the community, were neither concerned in the landed nor the trading interest; and to protect in the legislature the rights of the republic of letters. the right of election in boroughs is various, depending intirely on the several charters, customs, and constitutions of the respective places, which has occasioned infinite disputes; though now by statute geo. ii. c. . the right of voting for the future shall be allowed according to the last determination of the house of commons concerning it. and by statute geo. iii. c. . no freeman of any city or borough (other than such as claim by birth, marriage, or servitude) shall be intitled to vote therein unless he hath been admitted to his freedom twelve calendar months before. [footnote y: inst. .] [footnote z: prynne parl. writs. i. .] . our second point is the qualification of persons to be elected members of the house of commons. this depends upon the law and custom of parliaments[a], and the statutes referred to in the margin[b]. and from these it appears, . that they must not be aliens born, or minors. . that they must not be any of the twelve judges, because they sit in the lords' house; nor of the clergy, for they sit in the convocation; nor persons attainted of treason or felony, for they are unfit to sit any where[c]. . that sheriffs of counties, and mayors and bailiffs of boroughs, are not eligible in their respective jurisdictions, as being returning officers[d]; but that sheriffs of one county are eligible to be knights of another[e]. . that, in strictness, all members ought to be inhabitants of the places for which they are chosen: but this is intirely disregarded. . that no persons concerned in the management of any duties or taxes created since , except the commissioners of the treasury, nor any of the officers following, (viz. commissioners of prizes, transports, sick and wounded, wine licences, navy, and victualling; secretaries or receivers of prizes; comptrollers of the army accounts; agents for regiments; governors of plantations and their deputies; officers of minorca or gibraltar; officers of the excise and customs; clerks or deputies in the several offices of the treasury, exchequer, navy, victualling, admiralty, pay of the army or navy, secretaries of state, salt, stamps, appeals, wine licences, hackney coaches, hawkers and pedlars) nor any persons that hold any new office under the crown created since , are capable of being elected members. . that no person having a pension under the crown during pleasure, or for any term of years, is capable of being elected. . that if any member accepts an office under the crown, except an officer in the army or navy accepting a new commission, his seat is void; but such member is capable of being re-elected. . that all knights of the shire shall be actual knights, or such notable esquires and gentlemen, as have estates sufficient to be knights, and by no means of the degree of yeomen. this is reduced to a still greater certainty, by ordaining, . that every knight of a shire shall have a clear estate of freehold or copyhold to the value of six hundred pounds _per annum_, and every citizen and burgess to the value of three hundred pounds; except the eldest sons of peers, and of persons qualified to be knights of shires, and except the members for the two universities: which somewhat ballances the ascendant which the boroughs have gained over the counties, by obliging the trading interest to make choice of landed men: and of this qualification the member must make oath, and give in the particulars in writing, at the time of his taking his seat. but, subject to these restrictions and disqualifications, every subject of the realm is eligible of common right. it was therefore an unconstitutional prohibition, which was inserted in the king's writs, for the parliament holden at coventry, hen. iv, that no apprentice or other man of the law should be elected a knight of the shire therein[f]: in return for which, our law books and historians[g] have branded this parliament with the name of _parliamentum indoctum_, or the lack-learning parliament; and sir edward coke observes with some spleen[h], that there was never a good law made thereat. [footnote a: inst. .] [footnote b: hen. v. c. . hen. vi. c. . w. & m. st. . c. . & w. & m. c. . & w. iii. c. . & w. iii. c. . ann. c. . ann. c. . geo. i. c. . geo. ii. c. . geo. ii. c. .] [footnote c: inst. .] [footnote d: hale of parl. .] [footnote e: inst. .] [footnote f: pryn. on inst. .] [footnote g: walsingh. _a.d._ .] [footnote h: inst. .] . the third point regarding elections, is the method of proceeding therein. this is also regulated by the law of parliament, and the several statutes referred to in the margin[i]; all which i shall endeavour to blend together, and extract out of them a summary account of the method of proceeding to elections. [footnote i: hen. iv. c. . hen. vi. c. . hen. vi. c. . w. & m. st. . c. . w. & m. st. . c. . & w. & m. c. . w. iii. c. . & w. iii. c. . and c. . & w. iii. c. . & w. iii. c. . ann. c. . ann. c. . ann. c. . and c. . geo. ii. c. . geo. ii. c. . geo. ii. c. . geo. ii. c. .] as soon as the parliament is summoned, the lord chancellor, (or if a vacancy happens during parliament, the speaker, by order of the house) sends his warrant to the clerk of the crown in chancery; who thereupon issues out writs to the sheriff of every county, for the election of all the members to serve for that county, and every city and borough therein. within three days after the receipt of this writ, the sheriff is to send his precept, under his seal, to the proper returning officers of the cities and boroughs, commanding them to elect their members; and the said returning officers are to proceed to election within eight days from the receipt of the precept, giving four days notice of the same; and to return the persons chosen, together with the precept, to the sheriff. but elections of knights of the shire must be proceeded to by the sheriffs themselves in person, at the next county court that shall happen after the delivery of the writ. the county court is a court held every month or oftener by the sheriff, intended to try little causes not exceeding the value of forty shillings, in what part of the county he pleases to appoint for that purpose: but for the election of knights of the shire, it must be held at the most usual place. if the county court falls upon the day of delivering the writ, or within six days after, the sheriff may adjourn the court and election to some other convenient time, not longer than sixteen days, nor shorter than ten; but he cannot alter the place, without the consent of all the candidates; and in all such cases ten days public notice must be given of the time and place of the election. and, as it is essential to the very being of parliament that elections should be absolutely free, therefore all undue influences upon the electors are illegal, and strongly prohibited. for mr locke[k] ranks it among those breaches of trust in the executive magistrate, which according to his notions amount to a dissolution of the government, "if he employs the force, treasure, and offices of the society to corrupt the representatives, or openly to preingage the electors, and prescribe what manner of persons shall be chosen. for thus to regulate candidates and electors, and new model the ways of election, what is it, says he, but to cut up the government by the roots, and poison the very fountain of public security?" as soon therefore as the time and place of election, either in counties or boroughs, are fixed, all soldiers quartered in the place are to remove, at least one day before the election, to the distance of two miles or more; and not return till one day after the poll is ended. riots likewise have been frequently determined to make an election void. by vote also of the house of commons, to whom alone belongs the power of determining contested elections, no lord of parliament, or lord lieutenant of a county, hath any right to interfere in the election of commoners; and, by statute, the lord warden of the cinque ports shall not recommend any members there. if any officer of the excise, customs, stamps, or certain other branches of the revenue, presumes to intermeddle in elections, by persuading any voter or dissuading him, he forfeits _l_, and is disabled to hold any office. [footnote k: on gov. part. . §. .] thus are the electors of one branch of the legislature secured from any undue influence from either of the other two, and from all external violence and compulsion. but the greatest danger is that in which themselves co-operate, by the infamous practice of bribery and corruption. to prevent which it is enacted that no candidate shall, after the date (usually called the _teste_) of the writs, or after the vacancy, give any money or entertainment to his electors, or promise to give any, either to particular persons, or to the place in general, in order to his being elected; on pain of being incapable to serve for that place in parliament. and if any money, gift, office, employment, or reward be given or promised to be given to any voter, at any time, in order to influence him to give or withhold his vote, both he that takes and he that offers such bribe forfeits _l_, and is for ever disabled from voting and holding any office in any corporation; unless, before conviction, he will discover some other offender of the same kind, and then he is indemnified for his own offence[l]. the first instance that occurs of election bribery, was so early as eliz. when one thomas longe (being a simple man and of small capacity to serve in parliament) acknowleged that he had given the returning officer and others of the borough of westbury four pounds to be returned member, and was for that premium elected. but for this offence the borough was amerced, the member was removed, and the officer fined and imprisoned[m]. but, as this practice hath since taken much deeper and more universal root, it hath occasioned the making of these wholesome statutes; to complete the efficacy of which, there is nothing wanting but resolution and integrity to put them in strict execution. [footnote l: in like manner the julian law _de ambitu_ inflicts fines and infamy upon all who were guilty of corruption at elections; but, if the person guilty convicted another offender, he was restored to his credit again. _ff._ . . .] [footnote m: inst. . hale of parl. . com. journ. & may .] undue influence being thus (i wish the depravity of mankind would permit me to say, effectually) guarded against, the election is to be proceeded to on the day appointed; the sheriff or other returning officer first taking an oath against bribery, and for the due execution of his office. the candidates likewise, if required, must swear to their qualification; and the electors in counties to theirs; and the electors both in counties and boroughs are also compellable to take the oath of abjuration and that against bribery and corruption. and it might not be amiss, if the members elected were bound to take the latter oath, as well as the former; which in all probability would be much more effectual, than administring it only to the electors. the election being closed, the returning officer in boroughs returns his precept to the sheriff, with the persons elected by the majority: and the sheriff returns the whole, together with the writ for the county and the knights elected thereupon, to the clerk of the crown in chancery; before the day of meeting, if it be a new parliament, or within fourteen days after the election, if it be an occasional vacancy; and this under penalty of _l_. if the sheriff does not return such knights only as are duly elected, he forfeits, by the old statutes of henry vi, _l_; and the returning officer in boroughs for a like false return _l_; and they are besides liable to an action, in which double damages shall be recovered, by the later statutes of king william: and any person bribing the returning officer shall alio forfeit _l_. but the members returned by him are the sitting members, until the house of commons, upon petition, shall adjudge the return to be false and illegal. and this abstract of the proceedings at elections of knights, citizens, and burgesses, concludes our enquiries into the laws and customs more peculiarly relative to the house of commons. vi. i proceed now, sixthly, to the method of making laws; which is much the same in both houses: and i shall touch it very briefly, beginning in the house of commons. but first i must premise, that for dispatch of business each house of parliament has it's speaker. the speaker of the house of lords is the lord chancellor, or keeper of the king's great seal; whose office it is to preside there, and manage the formality of business. the speaker of the house of commons is chosen by the house; but must be approved by the king. and herein the usage of the two houses differs, that the speaker of the house of commons cannot give his opinion or argue any question in the house; but the speaker of the house of lords may. in each house the act of the majority binds the whole; and this majority is declared by votes openly and publickly given: not as at venice, and many other senatorial assemblies, privately or by ballot. this latter method may be serviceable, to prevent intrigues and unconstitutional combinations: but is impossible to be practiced with us; at least in the house of commons, where every member's conduct is subject to the future censure of his constituents, and therefore should be openly submitted to their inspection. to bring a bill into the house, if the relief sought by it is of a private nature, it is first necessary to prefer a petition; which must be presented by a member, and usually sets forth the grievance desired to be remedied. this petition (when founded on facts that may be in their nature disputed) is referred to a committee of members, who examine the matter alleged, and accordingly report it to the house; and then (or, otherwise, upon the mere petition) leave is given to bring in the bill. in public matters the bill is brought in upon motion made to the house, without any petition at all. formerly, all bills were drawn in the form of petitions, which were entered upon the _parliament rolls_, with the king's answer thereunto subjoined; not in any settled form of words, but as the circumstances of the case required[n]: and at the end of each parliament the judges drew them into the form of a statute, which was entered on the _statute-rolls_. in the reign of henry v, to prevent mistakes and abuses, the statutes were drawn up by the judges before the end of the parliament; and, in the reign of henry vi, bills in the form of acts, according to the modern custom, were first introduced. [footnote n: see, among numberless other instances, the _articuli cleri_, edw. ii.] the persons, directed to bring in the bill, present it in a competent time to the house, drawn out on paper, with a multitude of blanks, or void spaces, where any thing occurs that is dubious, or necessary to be settled by the parliament itself; (such, especially, as the precise date of times, the nature and quantity of penalties, or of any sums of money to be raised) being indeed only the sceleton of the bill. in the house of lords, if the bill begins there, it is (when of a private nature) perused by two of the judges, who settle all points of legal propriety. this is read a first time, and at a convenient distance a second time; and after each reading the speaker opens to the house the substance of the bill, and puts the question, whether it shall proceed any farther. the introduction of the bill may be originally opposed, as the bill itself may at either of the readings; and, if the opposition succeeds, the bill must be dropt for that sessions; as it must also, if opposed with success in any of the subsequent stages. after the second reading it is committed, that is, referred to a committee; which is either selected by the house in matters of small importance, or else, upon a bill of consequence, the house resolves itself into a committee of the whole house. a committee of the whole house is composed of every member; and, to form it, the speaker quits the chair, (another member being appointed chairman) and may sit and debate as a private member. in these committees the bill is debated clause by clause, amendments made, the blanks filled up, and sometimes the bill entirely new modelled. after it has gone through the committee, the chairman reports it to the house with such amendments as the committee have made; and then the house reconsider the whole bill again, and the question is repeatedly put upon every clause and amendment. when the house have agreed or disagreed to the amendments of the committee, and sometimes added new amendments of their own, the bill is then ordered to be engrossed, or written in a strong gross hand, on one or more long rolls of parchment sewed together. when this is finished, it is read a third time, and amendments are sometimes then made to it; and, if a new clause be added, it is done by tacking a separate piece of parchment on the bill, which is called a ryder. the speaker then again opens the contents; and, holding it up in his hands, puts the question, whether the bill shall pass. if this is agreed to, one of the members is directed to carry it to the lords, and desire their concurrence; who, attended by several more, carries it to the bar of the house of peers, and there delivers it to their speaker, who comes down from his woolsack to receive it. it there passes through the same forms as in the other house, (except engrossing, which is already done) and, if rejected, no more notice is taken, but it passes _sub silentio_, to prevent unbecoming altercations. but if it is agreed to, the lords send a message by two masters in chancery (or sometimes two of the judges) that they have agreed to the same: and the bill remains with the lords, if they have made no amendment to it. but if any amendments are made, such amendments are sent down with the bill to receive the concurrence of the commons. if the commons disagree to the amendments, a conference usually follows between members deputed from each house; who for the most part settle and adjust the difference: but, if both houses remain inflexible, the bill is dropped. if the commons agree to the amendments, the bill is sent back to the lords by one of the members, with a message to acquaint them therewith. the same forms are observed, _mutatis mutandis_, when the bill begins in the house of lords. and when both houses have done with the bill, it always is deposited in the house of peers, to wait the royal assent. this may be given two ways: . in person; when the king comes to the house of peers, in his crown and royal robes, and sending for the commons to the bar, the titles of all the bills that have passed both houses are read; and the king's answer is declared by the clerk of the parliament in norman-french: a badge, it must be owned, (now the only one remaining) of conquest; and which one could wish to see fall into total oblivion; unless it be reserved as a solemn memento to remind us that our liberties are mortal, having once been destroyed by a foreign force. if the king consents to a public bill, the clerk usually declares, "_le roy le veut_, the king wills it so to be;" if to a private bill, "_soit fait come il est desirè_, be it as it is desired." if the king refuses his assent, it is in the gentle language of "_le roy s'avisera_, the king will advise upon it." . by statute hen. viii. c. . the king may give his assent by letters patent under his great seal, signed with his hand, and notified, in his absence, to both houses assembled together in the high house. and, when the bill has received the royal assent in either of these ways, it is then, and not before, a statute or act of parliament. this statute or act is placed among the records of the kingdom; there needing no formal promulgation to give it the force of a law, as was necessary by the civil law with regard to the emperors edicts: because every man in england is, in judgment of law, party to the making of an act of parliament, being present thereat by his representatives. however, a copy thereof is usually printed at the king's press, for the information of the whole land. and formerly, before the invention of printing, it was used to be published by the sheriff of every county; the king's writ being sent to him at the end of every session, together with a transcript of all the acts made at that session, commanding him "_ut statuta illa, et omnes articulos in eisdem contentos, in singulis locis ubi expedire viderit, publice proclamari, et firmiter teneri et observari faciat_." and the usage was to proclaim them at his county court, and there to keep them, that whoever would might read or take copies thereof; which custom continued till the reign of henry the seventh[o]. [footnote o: inst. . inst. .] an act of parliament, thus made, is the exercise of the highest authority that this kingdom acknowleges upon earth. it hath power to bind every subject in the land, and the dominions thereunto belonging; nay, even the king himself, if particularly named therein. and it cannot be altered, amended, dispensed with, suspended, or repealed, but in the same forms and by the same authority of parliament: for it is a maxim in law, that it requires the same strength to dissolve, as to create an obligation. it is true it was formerly held, that the king might in many cases dispense with penal statutes[p]: but now by statute w. & m. st. . c. . it is declared, that the suspending or dispensing with laws by regal authority, without consent of parliament, is illegal. [footnote p: finch. l. . .] vii. there remains only, in the seventh and last place, to add a word or two concerning the manner in which parliaments may be adjourned, prorogued, or dissolved. an adjournment is no more than a continuance of the session from one day to another, as the word itself signifies: and this is done by the authority of each house separately every day; and sometimes for a fortnight or a month together, as at christmas or easter, or upon other particular occasions. but the adjournment of one house is no adjournment of the other[q]. it hath also been usual, when his majesty hath signified his pleasure that both or either of the houses should adjourn themselves to a certain day, to obey the king's pleasure so signified, and to adjourn accordingly[r]. otherwise, besides the indecorum of a refusal, a prorogation would assuredly follow; which would often be very inconvenient to both public and private business. for prorogation puts an end to the session; and then such bills, as are only begun and not perfected, must be resumed _de novo_ (if at all) in a subsequent session: whereas, after an adjournment, all things continue in the same state as at the time of the adjournment made, and may be proceeded on without any fresh commencement. [footnote q: inst. .] [footnote r: com. journ. _passim_: _e.g._ jun. . apr. . jun. nov. dec. . jul. . sept. . jul. . aug. . febr. . jun. . apr. . feb. . dec. .] a prorogation is the continuance of the parliament from one session to another, as an adjournment is a continuation of the session from day to day. this is done by the royal authority, expressed either by the lord chancellor in his majesty's presence, or by commission from the crown, or frequently by proclamation. both houses are necessarily prorogued at the same time; it not being a prorogation of the house of lords, or commons, but of the parliament. the session is never understood to be at an end, until a prorogation: though, unless some act be passed or some judgment given in parliament, it is in truth no session at all[s]. and formerly the usage was, for the king to give the royal assent to all such bills as he approved, at the end of every session, and then to prorogue the parliament; though sometimes only for a day or two[t]: after which all business then depending in the houses was to be begun again. which custom obtained so strongly, that it once became a question[u], whether giving the royal assent to a single bill did not of course put an end to the session. and, though it was then resolved in the negative, yet the notion was so deeply rooted, that the statute car. i. c. . was passed to declare, that the king's assent to that and some other acts should not put an end to the session; and, even so late as the restoration of charles ii, we find a proviso tacked to the first bill then enacted[w] that his majesty's assent thereto should not determine the session of parliament. but it now seems to be allowed, that a prorogation must be expressly made, in order to determine the session. and, if at the time of an actual rebellion, or imminent danger of invasion, the parliament shall be separated by adjournment or prorogation, the king is empowered[x] to call them together by proclamation, with fourteen days notice of the time appointed for their reassembling. [footnote s: inst. . hale of parl. .] [footnote t: com. journ. oct. .] [footnote u: _ibid._ nov. .] [footnote w: stat. car. ii. c. .] [footnote x: stat. geo. ii. c. .] a dissolution is the civil death of the parliament; and this may be effected three ways: . by the king's will, expressed either in person or by representation. for, as the king has the sole right of convening the parliament, so also it is a branch of the royal prerogative, that he may (whenever he pleases) prorogue the parliament for a time, or put a final period to it's existence. if nothing had a right to prorogue or dissolve a parliament but itself, it might happen to become perpetual. and this would be extremely dangerous, if at any time it should attempt to encroach upon the executive power: as was fatally experienced by the unfortunate king charles the first; who, having unadvisedly passed an act to continue the parliament then in being till such time as it should please to dissolve itself, at last fell a sacrifice to that inordinate power, which he himself had consented to give them. it is therefore extremely necessary that the crown should be empowered to regulate the duration of these assemblies, under the limitations which the english constitution has prescribed: so that, on the one hand, they may frequently and regularly come together, for the dispatch of business and redress of grievances; and may not, on the other, even with the consent of the crown, be continued to an inconvenient or unconstitutional length. . a parliament may be dissolved by the demise of the crown. this dissolution formerly happened immediately upon the death of the reigning sovereign, for he being considered in law as the head of the parliament, (_caput, principium, et finis_) that failing, the whole body was held to be extinct. but, the calling a new parliament immediately on the inauguration of the successor being found inconvenient, and dangers being apprehended from having no parliament in being in case of a disputed succession, it was enacted by the statutes & w. iii. c. . and ann. c. . that the parliament in being shall continue for six months after the death of any king or queen, unless sooner prorogued or dissolved by the successor: that, if the parliament be, at the time of the king's death, separated by adjournment or prorogation, it shall notwithstanding assemble immediately: and that, if no parliament is then in being, the members of the last parliament shall assemble, and be again a parliament. . lastly, a parliament may be dissolved or expire by length of time. for if either the legislative body were perpetual; or might last for the life of the prince who convened them, as formerly; and were so to be supplied, by occasionally filling the vacancies with new representatives; in these cases, if it were once corrupted, the evil would be past all remedy: but when different bodies succeed each other, if the people see cause to disapprove of the present, they may rectify it's faults in the next. a legislative assembly also, which is sure to be separated again, (whereby it's members will themselves become private men, and subject to the full extent of the laws which they have enacted for others) will think themselves bound, in interest as well as duty, to make only such laws as are good. the utmost extent of time that the same parliament was allowed to sit, by the statute w. & m. c. . was _three_ years; after the expiration of which, reckoning from the return of the first summons, the parliament was to have no longer continuance. but by the statute geo. i. st. . c. . (in order, professedly, to prevent the great and continued expenses of frequent elections, and the violent heats and animosities consequent thereupon, and for the peace and security of the government then just recovering from the late rebellion) this term was prolonged to _seven_ years; and, what alone is an instance of the vast authority of parliament, the very same house, that was chosen for three years, enacted it's own continuance for seven. so that, as our constitution now stands, the parliament must expire, or die a natural death, at the end of every seventh year; if not sooner dissolved by the royal prerogative. chapter the third. of the king, and his title. the supreme executive power of these kingdoms is vested by our laws in a single person, the king or queen: for it matters not to which sex the crown descends; but the person entitled to it, whether male or female, is immediately invested with all the ensigns, rights, and prerogatives of sovereign power; as is declared by statute mar. st. . c. . in discoursing of the royal rights and authority, i shall consider the king under six distinct views: . with regard to his title. . his royal family. . his councils. . his duties. . his prerogative. . his revenue. and, first, with regard to his title. the executive power of the english nation being vested in a single person, by the general consent of the people, the evidence of which general consent is long and immemorial usage, it became necessary to the freedom and peace of the state, that a rule should be laid down, uniform, universal, and permanent; in order to mark out with precision, _who_ is that single person, to whom are committed (in subservience to the law of the land) the care and protection of the community; and to whom, in return, the duty and allegiance of every individual are due. it is of the highest importance to the public tranquillity, and to the consciences of private men, that this rule should be clear and indisputable: and our constitution has not left us in the dark upon this material occasion. it will therefore be the endeavour of this chapter to trace out the constitutional doctrine of the royal succession, with that freedom and regard to truth, yet mixed with that reverence and respect, which the principles of liberty and the dignity of the subject require. the grand fundamental maxim upon which the _jus coronae_, or right of succession to the throne of these kingdoms, depends, i take to be this: "that the crown is, by common law and constitutional custom, hereditary; and this in a manner peculiar to itself: but that the right of inheritance may from time to time be changed or limited by act of parliament; under which limitations the crown still continues hereditary." and this proposition it will be the business of this chapter to prove, in all it's branches: first, that the crown is hereditary; secondly, that it is hereditary in a manner peculiar to itself; thirdly, that this inheritance is subject to limitation by parliament; lastly, that when it is so limited, it is hereditary in the new proprietor. . first, it is in general _hereditary_, or descendible to the next heir, on the death or demise of the last proprietor. all regal governments must be either hereditary or elective: and, as i believe there is no instance wherein the crown of england has ever been asserted to be elective, except by the regicides at the infamous and unparalleled trial of king charles i, it must of consequence be hereditary. yet while i assert an hereditary, i by no means intend a _jure divino_, title to the throne. such a title may be allowed to have subsisted under the theocratic establishments of the children of israel in palestine: but it never yet subsisted in any other country; save only so far as kingdoms, like other human fabrics, are subject to the general and ordinary dispensations of providence. nor indeed have a _jure divino_ and an _hereditary_ right any necessary connexion with each other; as some have very weakly imagined. the titles of david and jehu were equally _jure divino_, as those of either solomon or ahab; and yet david slew the sons of his predecessor, and jehu his predecessor himself. and when our kings have the same warrant as they had, whether it be to sit upon the throne of their fathers, or to destroy the house of the preceding sovereign, they will then, and not before, possess the crown of england by a right like theirs, _immediately_ derived from heaven. the hereditary right, which the laws of england acknowlege, owes it's origin to the founders of our constitution, and to them only. it has no relation to, nor depends upon, the civil laws of the jews, the greeks, the romans, or any other nation upon earth: the municipal laws of one society having no connexion with, or influence upon, the fundamental polity of another. the founders of our english monarchy might perhaps, if they had thought proper, have made it an elective monarchy: but they rather chose, and upon good reason, to establish originally a succession by inheritance. this has been acquiesced in by general consent; and ripened by degrees into common law: the very same title that every private man has to his own estate. lands are not naturally descendible any more than thrones: but the law has thought proper, for the benefit and peace of the public, to establish hereditary succession in one as well as the other. it must be owned, an elective monarchy seems to be the most obvious, and best suited of any to the rational principles of government, and the freedom of human nature: and accordingly we find from history that, in the infancy and first rudiments of almost every state, the leader, chief magistrate, or prince, hath usually been elective. and, if the individuals who compose that state could always continue true to first principles, uninfluenced by passion or prejudice, unassailed by corruption, and unawed by violence, elective succession were as much to be desired in a kingdom, as in other inferior communities. the best, the wisest, and the bravest man would then be sure of receiving that crown, which his endowments have merited; and the sense of an unbiassed majority would be dutifully acquiesced in by the few who were of different opinions. but history and observation will inform us, that elections of every kind (in the present state of human nature) are too frequently brought about by influence, partiality, and artifice: and, even where the case is otherwise, these practices will be often suspected, and as constantly charged upon the successful, by a splenetic disappointed minority. this is an evil, to which all societies are liable; as well those of a private and domestic kind, as the great community of the public, which regulates and includes the rest. but in the former there is this advantage; that such suspicions, if false, proceed no farther than jealousies and murmurs, which time will effectually suppress; and, if true, the injustice may be remedied by legal means, by an appeal to those tribunals to which every member of society has (by becoming such) virtually engaged to submit. whereas, in the great and independent society, which every nation composes, there is no superior to resort to but the law of nature; no method to redress the infringements of that law, but the actual exertion of private force. as therefore between two nations, complaining of mutual injuries, the quarrel can only be decided by the law of arms; so in one and the same nation, when the fundamental principles of their common union are supposed to be invaded, and more especially when the appointment of their chief magistrate is alleged to be unduly made, the only tribunal to which the complainants can appeal is that of the god of battels, the only process by which the appeal can be carried on is that of a civil and intestine war. an hereditary succession to the crown is therefore now established, in this and most other countries, in order to prevent that periodical bloodshed and misery, which the history of antient imperial rome, and the more modern experience of poland and germany, may shew us are the consequences of elective kingdoms. . but, secondly, as to the particular mode of inheritance, it in general corresponds with the feodal path of descents, chalked out by the common law in the succession to landed estates; yet with one or two material exceptions. like them, the crown will descend lineally to the issue of the reigning monarch; as it did from king john to richard ii, through a regular pedigree of six lineal descents. as in them, the preference of males to females, and the right of primogeniture among the males, are strictly adhered to. thus edward v succeeded to the crown, in preference to richard his younger brother and elizabeth his elder sister. like them, on failure of the male line, it descends to the issue female; according to the antient british custom remarked by tacitus[a], "_solent foeminarum ductu bellare, et sexum in imperiis non discernere_." thus mary i succeeded to edward vi; and the line of margaret queen of scots, the daughter of henry vii, succeeded on failure of the line of henry viii, his son. but, among the females, the crown descends by right of primogeniture to the eldest daughter only and her issue; and not, as in common inheritances, to all the daughters at once; the evident necessity of a sole succession to the throne having occasioned the royal law of descents to depart from the common law in this respect: and therefore queen mary on the death of her brother succeeded to the crown alone, and not in partnership with her sister elizabeth. again: the doctrine of representation prevails in the descent of the crown, as it does in other inheritances; whereby the lineal descendants of any person deceased stand in the same place as their ancestor, if living, would have done. thus richard ii succeeded his grandfather edward iii, in right of his father the black prince; to the exclusion of all his uncles, his grandfather's younger children. lastly, on failure of lineal descendants, the crown goes to the next collateral relations of the late king; provided they are lineally descended from the blood royal, that is, from that royal stock which originally acquired the crown. thus henry i succeeded to william ii, john to richard i, and james i to elizabeth; being all derived from the conqueror, who was then the only regal stock. but herein there is no objection (as in the case of common descents) to the succession of a brother, an uncle, or other collateral relation, of the _half_ blood; that is, where the relationship proceeds not from the same _couple_ of ancestors (which constitutes a kinsman of the _whole_ blood) but from a _single_ ancestor only; as when two persons are derived from the same father, and not from the same mother, or _vice versa_: provided only, that the one ancestor, from whom both are descended, be he from whose veins the blood royal is communicated to each. thus mary i inherited to edward vi, and elizabeth inherited to mary; all born of the same father, king henry viii, but all by different mothers. the reason of which diversity, between royal and common descents, will be better understood hereafter, when we examine the nature of inheritances in general. [footnote a: _in vit. agricolae._] . the doctrine of _hereditary_ right does by no means imply an _indefeasible_ right to the throne. no man will, i think, assert this, that has considered our laws, constitution, and history, without prejudice, and with any degree of attention. it is unquestionably in the breast of the supreme legislative authority of this kingdom, the king and both houses of parliament, to defeat this hereditary right; and, by particular entails, limitations, and provisions, to exclude the immediate heir, and vest the inheritance in any one else. this is strictly consonant to our laws and constitution; as may be gathered from the expression so frequently used in our statute book, of "the king's majesty, his heirs, and successors." in which we may observe, that as the word, "heirs," necessarily implies an inheritance or hereditary right, generally subsisting in the royal person; so the word, "successors," distinctly taken, must imply that this inheritance may sometimes be broke through; or, that there may be a successor, without being the heir, of the king. and this is so extremely reasonable, that without such a power, lodged somewhere, our polity would be very defective. for, let us barely suppose so melancholy a case, as that the heir apparent should be a lunatic, an ideot, or otherwise incapable of reigning: how miserable would the condition of the nation be, if he were also incapable of being set aside!--it is therefore necessary that this power should be lodged somewhere: and yet the inheritance, and regal dignity, would be very precarious indeed, if this power were _expressly_ and _avowedly_ lodged in the hands of the subject only, to be exerted whenever prejudice, caprice, or discontent should happen to take the lead. consequently it can no where be so properly lodged as in the two houses of parliament, by and with the consent of the reigning king; who, it is not to be supposed, will agree to any thing improperly prejudicial to the rights of his own descendants. and therefore in the king, lords, and commons, in parliament assembled, our laws have expressly lodged it. . but, fourthly; however the crown maybe limited or transferred, it still retains it's descendible quality, and becomes hereditary in the wearer of it: and hence in our law the king is said never to die, in his political capacity; though, in common with other men, he is subject to mortality in his natural: because immediately upon the natural death of henry, william, or edward, the king survives in his successor; and the right of the crown vests, _eo instanti_, upon his heir; either the _haeres natus_, if the course of descent remains unimpeached, or the _haeres factus_, if the inheritance be under any particular settlement. so that there can be no _interregnum_; but as sir matthew hale[b] observes, the right of sovereignty is fully invested in the successor by the very descent of the crown. and therefore, however acquired, it becomes in him absolutely hereditary, unless by the rules of the limitation it is otherwise ordered and determined. in the same manner as landed estates, to continue our former comparison, are by the law hereditary, or descendible to the heirs of the owner; but still there exists a power, by which the property of those lands may be transferred to another person. if this transfer be made simply and absolutely, the lands will be hereditary in the new owner, and descend to his heirs at law: but if the transfer be clogged with any limitations, conditions, or entails, the lands must descend in that chanel, so limited and prescribed, and no other. [footnote b: hist. p.c. .] in these four points consists, as i take it, the constitutional notion of hereditary right to the throne: which will be still farther elucidated, and made clear beyond all dispute, from a short historical view of the successions to the crown of england, the doctrines of our antient lawyers, and the several acts of parliament that have from time to time been made, to create, to declare, to confirm, to limit, or to bar, the hereditary title to the throne. and in the pursuit of this enquiry we shall find, that from the days of egbert, the first sole monarch of this kingdom, even to the present, the four cardinal maxims above mentioned have ever been held the constitutional canons of succession. it is true, this succession, through fraud, or force, or sometimes through necessity, when in hostile times the crown descended on a minor or the like, has been very frequently suspended; but has always at last returned back into the old hereditary chanel, though sometimes a very considerable period has intervened. and, even in those instances where the succession has been violated, the crown has ever been looked upon as hereditary in the wearer of it. of which the usurpers themselves were so sensible, that they for the most part endeavoured to vamp up some feeble shew of a title by descent, in order to amuse the people, while they gained the possession of the kingdom. and, when possession was once gained, they considered it as the purchase or acquisition of a new estate of inheritance, and transmitted or endeavoured to transmit it to their own posterity, by a kind of hereditary right of usurpation. king egbert about the year , found himself in possession of the throne of the west saxons, by a long and undisturbed descent from his ancestors of above three hundred years. how his ancestors acquired their title, whether by force, by fraud, by contract, or by election, it matters not much to enquire; and is indeed a point of such high antiquity, as must render all enquiries at best but plausible guesses. his right must be supposed indisputably good, because we know no better. the other kingdoms of the heptarchy he acquired, some by consent, but most by a voluntary submission. and it is an established maxim in civil polity, and the law of nations, that when one country is united to another in such a manner, as that one keeps it's government and states, and the other loses them; the latter entirely assimilates or is melted down in the former, and must adopt it's laws and customs[c]. and in pursuance of this maxim there hath ever been, since the union of the heptarchy in king egbert, a general acquiescence under the hereditary monarchy of the west saxons, through all the united kingdoms. [footnote c: puff. l. of n. and n. b. . c. . §. .] from egbert to the death of edmund ironside, a period of above two hundred years, the crown descended regularly, through a succession of fifteen princes, without any deviation or interruption; save only that king edred, the uncle of edwy, mounted the throne for about nine years, in the right of his nephew a minor, the times being very troublesome and dangerous. but this was with a view to preserve, and not to destroy, the succession; and accordingly edwy succeeded him. king edmund ironside was obliged, by the hostile irruption of the danes, at first to divide his kingdom with canute, king of denmark; and canute, after his death, seised the whole of it, edmund's sons being driven into foreign countries. here the succession was suspended by actual force, and a new family introduced upon the throne: in whom however this new acquired throne continued hereditary for three reigns; when, upon the death of hardiknute, the antient saxon line was restored in the person of edward the confessor. he was not indeed the true heir to the crown, being the younger brother of king edmund ironside, who had a son edward, sirnamed (from his exile) the outlaw, still living. but this son was then in hungary; and, the english having just shaken off the danish yoke, it was necessary that somebody on the spot should mount the throne; and the confessor was the next of the royal line then in england. on his decease without issue, harold ii usurped the throne, and almost at the same instant came on the norman invasion: the right to the crown being all the time in edgar, sirnamed atheling, (which signifies in the saxon language the first of the blood royal) who was the son of edward the outlaw, and grandson of edmund ironside; or, as matthew paris[d] well expresses the sense of our old constitution, "_edmundus autem latusferreum, rex naturalis de stirpe regum, genuit edwardum; et edwardus genuit edgarum, cui de jure debebatur regnum anglorum_." [footnote d: _a.d._ .] william the norman claimed the crown by virtue of a pretended grant from king edward the confessor; a grant which, if real, was in itself utterly invalid: because it was made, as harold well observed in his reply to william's demand[e], "_absque generali senatus et populi conventu et edicto_;" which also very plainly implies, that it then was generally understood that the king, with consent of the general council, might dispose of the crown and change the line of succession. william's title however was altogether as good as harold's, he being a mere private subject, and an utter stranger to the royal blood. edgar atheling's undoubted right was overwhelmed by the violence of the times; though frequently asserted by the english nobility after the conquest, till such time as he died without issue: but all their attempts proved unsuccessful, and only served the more firmly to establish the crown in the family which had newly acquired it. [footnote e: william of malmsb. _l._ .] this conquest then by william of normandy was, like that of canute before, a forcible transfer of the crown of england into a new family: but, the crown being so transferred, all the inherent properties of the crown were with it transferred also. for, the victory obtained at hastings not being[f] a victory over the nation collectively, but only over the person of harold, the only right that the conqueror could pretend to acquire thereby, was the right to possess the crown of england, not to alter the nature of the government. and therefore, as the english laws still remained in force, he must necessarily take the crown subject to those laws, and with all it's inherent properties; the first and principal of which was it's descendibility. here then we must drop our race of saxon kings, at least for a while, and derive our descents from william the conqueror as from a new stock, who acquired by right of war (such as it is, yet still the _dernier resort_ of kings) a strong and undisputed title to the inheritable crown of england. [footnote f: hale, hist. c.l. c. . seld. review of tithes, c. .] accordingly it descended from him to his sons william ii and henry i. robert, it must be owned, his eldest son, was kept out of possession by the arts and violence of his brethren; who proceeded upon a notion, which prevailed for some time in the law of descents, that when the eldest son was already provided for (as robert was constituted duke of normandy by his father's will) in such a case the next brother was entitled to enjoy the rest of their father's inheritance. but, as he died without issue, henry at last had a good title to the throne, whatever he might have at first. stephen of blois, who succeeded him, was indeed the grandson of the conqueror, by adelicia his daughter, and claimed the throne by a feeble kind of hereditary right; not as being the nearest of the male line, but as the nearest male of the blood royal. the real right was in the empress matilda or maud, the daughter of henry i; the rule of succession being (where women are admitted at all) that the daughter of a son shall be preferred to the son of a daughter. so that stephen was little better than a mere usurper; and the empress maud did not fail to assert her right by the sword: which dispute was attended with various success, and ended at last in a compromise, that stephen should keep the crown, but that henry the son of maud should succeed him; as he afterwards accordingly did. henry, the second of that name, was the undoubted heir of william the conqueror; but he had also another connexion in blood, which endeared him still farther to the english. he was lineally descended from edmund ironside, the last of the saxon race of hereditary kings. for edward the outlaw, the son of edmund ironside, had (besides edgar atheling, who died without issue) a daughter margaret, who was married to malcolm king of scotland; and in her the saxon hereditary right resided. by malcolm she had several children, and among the rest matilda the wife of henry i, who by him had the empress maud, the mother of henry ii. upon which account the saxon line is in our histories frequently said to have been restored in his person: though in reality that right subsisted in the _sons_ of malcolm by queen margaret; king henry's best title being as heir to the conqueror. from henry ii the crown descended to his eldest son richard i, who dying childless, the right vested in his nephew arthur, the son of geoffrey his next brother; but john, the youngest son of king henry, seised the throne; claiming, as appears from his charters, the crown by hereditary right[g]: that is to say, he was next of kin to the deceased king, being his surviving brother; whereas arthur was removed one degree farther, being his brother's son, though by right of representation he stood in the place of his father geoffrey. and however flimzey this title, and those of william rufus and stephen of blois, may appear at this distance to us, after the law of descents hath now been settled for so many centuries, they were sufficient to puzzle the understandings of our brave, but unlettered, ancestors. nor indeed can we wonder at the number of partizans, who espoused the pretensions of king john in particular; since even in the reign of his father, king henry ii, it was a point undetermined[h], whether, even in common inheritances, the child of an elder brother should succeed to the land in right of representation, or the younger surviving brother in right of proximity of blood. nor is it to this day decided in the collateral succession to the fiefs of the empire, whether the order of the stocks, or the proximity of degree shall take place[i]. however, on the death of arthur and his sister eleanor without issue, a clear and indisputable title vested in henry iii the son of john: and from him to richard the second, a succession of six generations, the crown descended in the true hereditary line. under one of which race of princes[k], we find it declared in parliament, "that the law of the crown of england is, and always hath been, that the children of the king of england, whether born in england, or elsewhere, ought to bear the inheritance after the death of their ancestors. which law, our sovereign lord the king, the prelates, earls, and barons, and other great men, together with all the commons, in parliament assembled, do approve and affirm for ever." [footnote g: "_regni angliae; quod nobis jure competit haereditario._" spelm. _hist. r. joh. apud_ wilkins. .] [footnote h: glanv. _l._ . _c._ .] [footnote i: mod. un. hist. xxx. .] [footnote k: stat. edw. iii. st. .] upon richard the second's resignation of the crown, he having no children, the right resulted to the issue of his grandfather edward iii. that king had many children, besides his eldest, edward the black prince of wales, the father of richard ii: but to avoid confusion i shall only mention three; william his second son, who died without issue; lionel duke of clarence, his third son; and john of gant duke of lancaster, his fourth. by the rules of succession therefore the posterity of lionel duke of clarence were entitled to the throne, upon the resignation of king richard; and had accordingly been declared by the king, many years before, the presumptive heirs of the crown; which declaration was also confirmed in parliament[l]. but henry duke of lancaster, the son of john of gant, having then a large army in the kingdom, the pretence of raising which was to recover his patrimony from the king, and to redress the grievances of the subject, it was impossible for any other title to be asserted with any safety; and he became king under the title of henry iv. but, as sir matthew hale remarks[m], though the people unjustly assisted henry iv in his usurpation of the crown, yet he was not admitted thereto, until he had declared that he claimed, not as a conqueror, (which he very much inclined to do[n]) but as a successor, descended by right line of the blood royal; as appears from the rolls of parliament in those times. and in order to this he set up a shew of two titles: the one upon the pretence of being the first of the blood royal in the intire male line, whereas the duke of clarence left only one daughter philippa; from which female branch, by a marriage with edmond mortimer earl of march, the house of york descended: the other, by reviving an exploded rumour, first propagated by john of gant, that edmond earl of lancaster (to whom henry's mother was heiress) was in reality the elder brother of king edward i; though his parents, on account of his personal deformity, had imposed him on the world for the younger: and therefore henry would be intitled to the crown, either as successor to richard ii, in case the intire male line was allowed a preference to the female; or, even prior to that unfortunate prince, if the crown could descend through a female, while an intire male line was existing. [footnote l: sandford's geneal. hist. .] [footnote m: hist. c.l. c. .] [footnote n: seld. tit. hon. . .] however, as in edward the third's time we find the parliament approving and affirming the right of the crown, as before stated, so in the reign of henry iv they actually exerted their right of new-settling the succession to the crown. and this was done by the statute hen. iv. c. . whereby it is enacted, "that the inheritance of the crown and realms of england and france, and all other the king's dominions, shall be _set and remain_[o] in the person of our sovereign lord the king, and in the heirs of his body issuing;" and prince henry is declared heir apparent to the crown, to hold to him and the heirs of his body issuing, with remainder to lord thomas, lord john, and lord humphry, the king's sons, and the heirs of their bodies respectively. which is indeed nothing more than the law would have done before, provided henry the fourth had been a rightful king. it however serves to shew that it was then generally understood, that the king and parliament had a right to new-model and regulate the succession to the crown. and we may observe, with what caution and delicacy the parliament then avoided declaring any sentiment of henry's original title. however sir edward coke more than once expressly declares[p], that at the time of passing this act the right of the crown was in the descent from philippa, daughter and heir of lionel duke of clarence. [footnote o: _soit mys et demoerge._] [footnote p: inst. , .] nevertheless the crown descended regularly from henry iv to his son and grandson henry v and vi; in the latter of whose reigns the house of york asserted their dormant title; and, after imbruing the kingdom in blood and confusion for seven years together, at last established it in the person of edward iv. at his accession to the throne, after a breach of the succession that continued for three descents, and above threescore years, the distinction of a king _de jure_, and a king _de facto_ began to be first taken; in order to indemnify such as had submitted to the late establishment, and to provide for the peace of the kingdom by confirming all honors conferred, and all acts done, by those who were now called the usurpers, not tending to the disherison of the rightful heir. in statute edw. iv. c. . the three henrys are stiled, "late kings of england successively in dede, and not of ryght." and, in all the charters which i have met with of king edward, wherever he has occasion to speak of any of the line of lancaster, he calls them "_nuper de facto, et non de jure, reges angliae_." edward iv left two sons and a daughter; the eldest of which sons, king edward v, enjoyed the regal dignity for a very short time, and was then deposed by richard his unnatural uncle; who immediately usurped the royal dignity, having previously insinuated to the populace a suspicion of bastardy in the children of edward iv, to make a shew of some hereditary title: after which he is generally believed to have murdered his two nephews; upon whose death the right of the crown devolved to their sister elizabeth. the tyrannical reign of king richard iii gave occasion to henry earl of richmond to assert his title to the crown. a title the most remote and unaccountable that was ever set up, and which nothing could have given success to, but the universal detestation of the then usurper richard. for, besides that he claimed under a descent from john of gant, whose title was now exploded, the claim (such as it was) was through john earl of somerset, a bastard son, begotten by john of gant upon catherine swinford. it is true, that, by an act of parliament ric. ii, this son was, with others, legitimated and made inheritable to all lands, offices, and dignities, as if he had been born in wedlock: but still, with an express reservation of the crown, "_excepta dignitate regali_[q]." [footnote q: inst. .] notwithstanding all this, immediately after the battle of bosworth field, he assumed the regal dignity; the right of the crown then being, as sir edward coke expressly declares[r], in elizabeth, eldest daughter of edward iv: and his possession was established by parliament, held the first year of his reign. in the act for which purpose, the parliament seems to have copied the caution of their predecessors in the reign of henry iv; and therefore (as lord bacon the historian of this reign observes) carefully avoided any recognition of henry vii's right, which indeed was none at all; and the king would not have it by way of new law or ordinance, whereby a right might seem to be created and conferred upon him; and therefore a middle way was rather chosen, by way (as the noble historian expresses it) of _establishment_, and that under covert and indifferent words, "that the inheritance of the crown should _rest_, _remain_, and _abide_ in king henry vii and the heirs of his body:" thereby providing for the future, and at the same time acknowleging his present possession; but not determining either way, whether that possession was _de jure_ or _de facto_ merely. however he soon after married elizabeth of york, the undoubted heiress of the conqueror, and thereby gained (as sir edward coke[s] declares) by much his best title to the crown. whereupon the act made in his favour was so much disregarded, that it never was printed in our statute books. [footnote r: inst. .] [footnote s: _ibid._] henry the eighth, the issue of this marriage, succeeded to the crown by clear indisputable hereditary right, and transmitted it to his three children in successive order. but in his reign we at several times find the parliament busy in regulating the succession to the kingdom. and, first, by statute hen. viii. c. . which recites the mischiefs, which have and may ensue by disputed titles, because no perfect and substantial provision hath been made by law concerning the succession; and then enacts, that the crown shall be entailed to his majesty, and the sons or heirs males of his body; and in default of such sons to the lady elizabeth (who is declared to be the king's eldest issue female, in exclusion of the lady mary, on account of her supposed illegitimacy by the divorce of her mother queen catherine) and to the lady elizabeth's heirs of her body; and so on from issue female to issue female, and the heirs of their bodies, by course of inheritance according to their ages, _as the crown of england hath been accustomed and ought to go_, in case where there be heirs female of the same: and in default of issue female, then to the king's right heirs for ever. this single statute is an ample proof of all the four positions we at first set out with. but, upon the king's divorce from ann boleyn, this statute was, with regard to the settlement of the crown, repealed by statute hen. viii. c. . wherein the lady elizabeth is also, as well as the lady mary, bastardized, and the crown settled on the king's children by queen jane seymour, and his future wives; and, in defect of such children, then with this remarkable remainder, to such persons as the king by letters patent, or last will and testament, should limit and appoint the same. a vast power; but, notwithstanding, as it was regularly vested in him by the supreme legislative authority, it was therefore indisputably valid. but this power was never carried into execution; for by statute hen. viii. c. . the king's two daughters are legitimated again, and the crown is limited to prince edward by name, after that to the lady mary, and then to the lady elizabeth, and the heirs of their respective bodies; which succession took effect accordingly, being indeed no other than the usual course of the law, with regard to the descent of the crown. but lest there should remain any doubt in the minds of the people, through this jumble of acts for limiting the succession, by statute mar. p. . c. . queen mary's hereditary right to the throne is acknowleged and recognized in these words: "the crown of these realms is most lawfully, justly, and rightly _descended_ and come to the queen's highness that now is, being the very, true, and undoubted heir and inheritrix thereof." and again, upon the queen's marriage with philip of spain, in the statute which settles the preliminaries of that match[t], the hereditary right to the crown is thus asserted and declared: "as touching the right of the queen's inheritance in the realm and dominions of england, the children, whether male or female, shall succeed in them, according to the known laws, statutes, and customs of the same." which determination of the parliament, that the succession _shall_ continue in the usual course, seems tacitly to imply a power of new-modelling and altering it, in case the legislature had thought proper. [footnote t: mar. p. . c. .] on queen elizabeth's accession, her right is recognized in still stronger terms than her sister's; the parliament acknowleging[u], "that the queen's highness is, and in very deed and of most mere right ought to be, by the laws of god, and the laws and statutes of this realm, our most lawful and rightful sovereign liege lady and queen; and that her highness is rightly, lineally, and lawfully descended and come of the blood royal of this realm of england; in and to whose princely person, and to the heirs of her body lawfully to be begotten, after her, the imperial crown and dignity of this realm doth belong." and in the same reign, by statute eliz. c. . we find the right of parliament to direct the succession of the crown asserted in the most explicit words. "if any person shall hold, affirm, or maintain that the common laws of this realm, not altered by parliament, ought not to direct the right of the crown of england; or that the queen's majesty, with and by the authority of parliament, is not able to make laws and statutes of sufficient force and validity, to limit and bind the crown of this realm, and the descent, limitation, inheritance, and government thereof;--such person, so holding, affirming, or maintaining, shall during the life of the queen be guilty of high treason; and after her decease shall be guilty of a misdemesnor, and forfeit his goods and chattels." [footnote u: stat. eliz. c. .] on the death of queen elizabeth, without issue, the line of henry viii became extinct. it therefore became necessary to recur to the other issue of henry vii, by elizabeth of york his queen: whose eldest daughter margaret having married james iv king of scotland, king james the sixth of scotland, and of england the first, was the lineal descendant from that alliance. so that in his person, as clearly as in henry viii, centered all the claims of different competitors from the conquest downwards, he being indisputably the lineal heir of the conqueror. and, what is still more remarkable, in his person also centered the right of the saxon monarchs, which had been suspended from the conquest till his accession. for, as was formerly observed, margaret the sister of edgar atheling, the daughter of edward the outlaw, and granddaughter of king edmund ironside, was the person in whom the hereditary right of the saxon kings, supposing it not abolished by the conquest, resided. she married malcolm king of scotland; and henry ii, by a descent from matilda their daughter, is generally called the restorer of the saxon line. but it must be remembered, that malcolm by his saxon queen had sons as well as daughters; and that the royal family of scotland from that time downwards were the offspring of malcolm and margaret. of this royal family king james the first was the direct lineal heir, and therefore united in his person every possible claim by hereditary right to the english, as well as scottish throne, being the heir both of egbert and william the conqueror. and it is no wonder that a prince of more learning than wisdom, who could deduce an hereditary title for more than eight hundred years, should easily be taught by the flatterers of the times to believe there was something divine in this right, and that the finger of providence was visible in it's preservation. whereas, though a wise institution, it was clearly a human institution; and the right inherent in him no natural, but a positive right. and in this and no other light was it taken by the english parliament; who by statute jac. i. c. . did "recognize and acknowlege, that immediately upon the dissolution and decease of elizabeth late queen of england, the imperial crown thereof did by inherent birthright, and lawful and undoubted succession, descend and come to his most excellent majesty, as being lineally, justly, and lawfully, next and sole heir of the blood royal of this realm." not a word here of any right immediately derived from heaven: which, if it existed any where, must be sought for among the _aborigines_ of the island, the antient britons; among whose princes indeed some have gone to search it for him[w]. [footnote w: elizabeth of york, the mother of queen margaret of scotland, was heiress of the house of mortimer. and mr carte observes, that the house of mortimer, in virtue of it's descent from gladys only sister to lewellin ap jorweth the great, had the true right to the principality of wales. iii. .] but, wild and absurd as the doctrine of divine right most undoubtedly is, it is still more astonishing, that when so many human hereditary rights had centered in this king, his son and heir king charles the first should be told by those infamous judges, who pronounced his unparalleled sentence, that he was an elective prince; elected by his people, and therefore accountable to them, in his own proper person, for his conduct. the confusion, instability, and madness, which followed the fatal catastrophe of that pious and unfortunate prince, will be a standing argument in favour of hereditary monarchy to all future ages; as they proved at last to the then deluded people: who, in order to recover that peace and happiness which for twenty years together they had lost, in a solemn parliamentary convention of the states restored the right heir of the crown. and in the proclamation for that purpose, which was drawn up and attended by both houses[x], they declared, "that, according to their duty and allegiance, they did heartily, joyfully, and unanimously acknowlege and proclaim, that immediately upon the decease of our late sovereign lord king charles, the imperial crown of these realms did by inherent birthright and lawful and undoubted succession descend and come to his most excellent majesty charles the second, as being lineally, justly, and lawfully, next heir of the blood royal of this realm: and thereunto they most humbly and faithfully did submit and oblige themselves, their heirs and posterity for ever." [footnote x: com. journ. may, .] thus i think it clearly appears, from the highest authority this nation is acquainted with, that the crown of england hath been ever an hereditary crown; though subject to limitations by parliament. the remainder of this chapter will consist principally of those instances, wherein the parliament has asserted or exercised this right of altering and limiting the succession; a right which, we have seen, was before exercised and asserted in the reigns of henry iv, henry vii, henry viii, queen mary, and queen elizabeth. the first instance, in point of time, is the famous bill of exclusion, which raised such a ferment in the latter end of the reign of king charles the second. it is well known, that the purport of this bill was to have set aside the king's brother and presumptive heir, the duke of york, from the succession, on the score of his being a papist; that it passed the house of commons, but was rejected by the lords; the king having also declared beforehand, that he never would be brought to consent to it. and from this transaction we may collect two things: . that the crown was universally acknowleged to be hereditary; and the inheritance indefeasible unless by parliament: else it had been needless to prefer such a bill. . that the parliament had a power to have defeated the inheritance: else such a bill had been ineffectual. the commons acknowleged the hereditary right then subsisting; and the lords did not dispute the power, but merely the propriety, of an exclusion. however, as the bill took no effect, king james the second succeeded to the throne of his ancestors; and might have enjoyed it during the remainder of his life, but for his own infatuated conduct, which (with other concurring circumstances) brought on the revolution in . the true ground and principle, upon which that memorable event proceeded, was an entirely new case in politics, which had never before happened in our history; the abdication of the reigning monarch, and the vacancy of the throne thereupon. it was not a defeazance of the right of succession, and a new limitation of the crown, by the king and both houses of parliament: it was the act of the nation alone, upon an apprehension that there was no king in being. for in a full assembly of the lords and commons, met in convention upon this apprehended vacancy, both houses[y] came to this resolution; "that king james the second, having endeavoured to subvert the constitution of the kingdom, by breaking the original contract between king and people; and, by the advice of jesuits and other wicked persons, having violated the fundamental laws; and having withdrawn himself out of this kingdom; has abdicated the government, and that the throne is thereby vacant." thus ended at once, by this sudden and unexpected vacancy of the throne, the old line of succession; which from the conquest had lasted above six hundred years, and from the union of the heptarchy in king egbert almost nine hundred. the facts themselves thus appealed to, the king's endeavours to subvert the constitution by breaking the original contract, his violation of the fundamental laws, and his withdrawing himself out of the kingdom, were evident and notorious: and the consequences drawn from these facts (namely, that they amounted to an abdication of the government; which abdication did not affect only the person of the king himself, but also all his heirs, and rendered the throne absolutely and completely vacant) it belonged to our ancestors to determine. for, whenever a question arises between the society at large and any magistrate vested with powers originally delegated by that society, it must be decided by the voice of the society itself: there is not upon earth any other tribunal to resort to. and that these consequences were fairly deduced from these facts, our ancestors have solemnly determined, in a full parliamentary convention representing the whole society. the reasons upon which they decided may be found at large in the parliamentary proceedings of the times; and may be matter of instructive amusement for us to contemplate, as a speculative point of history. but care must be taken not to carry this enquiry farther, than merely for instruction or amusement. the idea, that the consciences of posterity were concerned in the rectitude of their ancestors' decisions, gave birth to those dangerous political heresies, which so long distracted the state, but at length are all happily extinguished. i therefore rather chuse to consider this great political measure, upon the solid footing of authority, than to reason in it's favour from it's justice, moderation, and expedience: because that might imply a right of dissenting or revolting from it, in case we should think it unjust, oppressive, or inexpedient. whereas, our ancestors having most indisputably a competent jurisdiction to decide this great and important question, and having in fact decided it, it is now become our duty at this distance of time to acquiesce in their determination; being born under that establishment which was built upon this foundation, and obliged by every tie, religious as well as civil, to maintain it. [footnote y: com. journ. feb. .] but, while we rest this fundamental transaction, in point of authority, upon grounds the least liable to cavil, we are bound both in justice and gratitude to add, that it was conducted with a temper and moderation which naturally arose from it's equity; that, however it might in some respects go beyond the letter of our antient laws, (the reason of which will more fully appear hereafter[z]) it was agreeable to the spirit of our constitution, and the rights of human nature; and that though in other points (owing to the peculiar circumstances of things and persons) it was not altogether so perfect as might have been wished, yet from thence a new aera commenced, in which the bounds of prerogative and liberty have been better defined, the principles of government more thoroughly examined and understood, and the rights of the subject more explicitly guarded by legal provisions, than in any other period of the english history. in particular, it is worthy observation that the convention, in this their judgment, avoided with great wisdom the wild extremes into which the visionary theories of some zealous republicans would have led them. they held that this misconduct of king james amounted to an _endeavour_ to subvert the constitution, and not to an actual subversion, or total dissolution of the government, according to the principles of mr locke[a]: which would have reduced the society almost to a state of nature; would have levelled all distinctions of honour, rank, offices, and property; would have annihilated the sovereign power, and in consequence have repealed all positive laws; and would have left the people at liberty to have erected a new system of state upon a new foundation of polity. they therefore very prudently voted it to amount to no more than an abdication of the government, and a consequent vacancy of the throne; whereby the government was allowed to subsist, though the executive magistrate was gone, and the kingly office to remain, though king james was no longer king. and thus the constitution was kept intire; which upon every sound principle of government must otherwise have fallen to pieces, had so principal and constituent a part as the royal authority been abolished, or even suspended. [footnote z: see chapter .] [footnote a: on gov. p. . c. .] this single postulatum, the vacancy of the throne, being once established, the rest that was then done followed almost of course. for, if the throne be at any time vacant (which may happen by other means besides that of abdication; as if all the bloodroyal should fail, without any successor appointed by parliament;) if, i say, a vacancy by any means whatsoever should happen, the right of disposing of this vacancy seems naturally to result to the lords and commons, the trustees and representatives of the nation. for there are no other hands in which it can so properly be intrusted; and there is a necessity of it's being intrusted somewhere, else the whole frame of government must be dissolved and perish. the lords and commons having therefore determined this main fundamental article, that there was a vacancy of the throne, they proceeded to fill up that vacancy in such manner as they judged the most proper. and this was done by their declaration of february [b], in the following manner: "that william and mary, prince and princess of orange, be, and be declared king and queen, to hold the crown and royal dignity during their lives, and the life of the survivor of them; and that the sole and full exercise of the regal power be only in, and executed by, the said prince of orange, in the names of the said prince and princess, during their joint lives; and after their deceases the said crown and royal dignity to be to the heirs of the body of the said princess; and for default of such issue to the princess anne of denmark and the heirs of her body; and for default of such issue to the heirs of the body of the said prince of orange." [footnote b: com. journ. feb. .] perhaps, upon the principles before established, the convention might (if they pleased) have vested the regal dignity in a family intirely new, and strangers to the royal blood: but they were too well acquainted with the benefits of hereditary succession, and the influence which it has by custom over the minds of the people, to depart any farther from the antient line than temporary necessity and self-preservation required. they therefore settled the crown, first on king william and queen mary, king james's eldest daughter, for their _joint_ lives; then on the survivor of them; and then on the issue of queen mary: upon failure of such issue, it was limited to the princess anne, king james's second daughter, and her issue; and lastly, on failure of that, to the issue of king william, who was the grandson of charles the first, and nephew as well as son in law of king james the second, being the son of mary his only sister. this settlement included all the protestant posterity of king charles i, except such other issue as king james might at any time have, which was totally omitted through fear of a popish succession. and this order of succession took effect accordingly. these three princes therefore, king william, queen mary, and queen anne, did not take the crown by hereditary right or _descent_, but by way of donation or _purchase_, as the lawyers call it; by which they mean any method of acquiring an estate otherwise than by descent. the new settlement did not merely consist in excluding king james, and the person pretended to be prince of wales, and then suffering the crown to descend in the old hereditary chanel: for the usual course of descent was in some instances broken through; and yet the convention still kept it in their eye, and paid a great, though not total, regard to it. let us see how the succession would have stood, if no abdication had happened, and king james had left no other issue than his two daughters queen mary and queen anne. it would have stood thus: queen mary and her issue; queen anne and her issue; king william and his issue. but we may remember, that queen mary was only nominally queen, jointly with her husband king william, who alone had the regal power; and king william was absolutely preferred to queen anne, though his issue was postponed to hers. clearly therefore these princes were successively in possession of the crown by a title different from the usual course of descent. it was towards the end of king william's reign, when all hopes of any surviving issue from any of these princes died with the duke of glocester, that the king and parliament thought it necessary again to exert their power of limiting and appointing the succession, in order to prevent another vacancy of the throne; which must have ensued upon their deaths, as no farther provision was made at the revolution, than for the issue of king william, queen mary, and queen anne. the parliament had previously by the statute of w. & m. st. . c. . enacted, that every person who should be reconciled to, or hold communion with, the see of rome, should profess the popish religion, or should marry a papist, should be excluded and for ever incapable to inherit, possess, or enjoy, the crown; and that in such case the people should be absolved from their allegiance, and the crown should descend to such persons, being protestants, as would have inherited the same, in case the person so reconciled, holding communion, professing, or marrying, were naturally dead. to act therefore consistently with themselves, and at the same time pay as much regard to the old hereditary line as their former resolutions would admit, they turned their eyes on the princess sophia, electress and duchess dowager of hanover, the most accomplished princess of her age[c]. for, upon the impending extinction of the protestant posterity of charles the first, the old law of regal descent directed them to recur to the descendants of james the first; and the princess sophia, being the daughter of elizabeth queen of bohemia, who was the youngest daughter of james the first, was the nearest of the antient blood royal, who was not incapacitated by professing the popish religion. on her therefore, and the heirs of her body, being protestants, the remainder of the crown, expectant on the death of king william and queen anne without issue, was settled by statute & w. iii. c. . and at the same time it was enacted, that whosoever should hereafter come to the possession of the crown, should join in the communion of the church of england as by law established. [footnote c: sandford, in his genealogical history, published _a.d._ , speaking (page ) of the princesses elizabeth, louisa, and sophia, daughters of the queen of bohemia, says, the first was reputed the most learned, the second the greatest artist, and the last one of the most accomplished ladies in europe.] this is the last limitation of the crown that has been made by parliament: and these several actual limitations, from the time of henry iv to the present, do clearly prove the power of the king and parliament to new-model or alter the succession. and indeed it is now again made highly penal to dispute it: for by the statute ann. c. . it is enacted, that if any person maliciously, advisedly, and directly, shall maintain by writing or printing, that the kings of this realm with the authority of parliament are not able to make laws to bind the crown and the descent thereof, he shall be guilty of high treason; or if he maintains the same by only preaching, teaching, or advised speaking, he shall incur the penalties of a praemunire. the princess sophia dying before queen anne, the inheritance thus limited descended on her son and heir king george the first; and, having on the death of the queen taken effect in his person, from him it descended to his late majesty king george the second; and from him to his grandson and heir, our present gracious sovereign, king george the third. hence it is easy to collect, that the title to the crown is at present hereditary, though not quite so absolutely hereditary as formerly; and the common stock or ancestor, from whom the descent must be derived, is also different. formerly the common stock was king egbert; then william the conqueror; afterwards in james the first's time the two common stocks united, and so continued till the vacancy of the throne in : now it is the princess sophia, in whom the inheritance was vested by the new king and parliament. formerly the descent was absolute, and the crown went to the next heir without any restriction: but now, upon the new settlement, the inheritance is conditional, being limited to such heirs only, of the body of the princess sophia, as are protestant members of the church of england, and are married to none but protestants. and in this due medium consists, i apprehend, the true constitutional notion of the right of succession to the imperial crown of these kingdoms. the extremes, between which it steers, are each of them equally destructive of those ends for which societies were formed and are kept on foot. where the magistrate, upon every succession, is elected by the people, and may by the express provision of the laws be deposed (if not punished) by his subjects, this may sound like the perfection of liberty, and look well enough when delineated on paper; but in practice will be ever productive of tumult, contention, and anarchy. and, on the other hand, divine indefeasible hereditary right, when coupled with the doctrine of unlimited passive obedience, is surely of all constitutions the most thoroughly slavish and dreadful. but when such an hereditary right, as our laws have created and vested in the royal stock, is closely interwoven with those liberties, which, we have seen in a former chapter, are equally the inheritance of the subject; this union will form a constitution, in theory the most beautiful of any, in practice the most approved, and, i trust, in duration the most permanent. it was the duty of an expounder of our laws to lay this constitution before the student in it's true and genuine light: it is the duty of every good englishman to understand, to revere, to defend it. chapter the fourth. of the king's royal family. the first and most considerable branch of the king's royal family, regarded by the laws of england, is the queen. the queen of england is either queen _regent_, queen _consort_, or queen _dowager_. the queen _regent_, _regnant_, or _sovereign_, is she who holds the crown in her own right; as the first (and perhaps the second) queen mary, queen elizabeth, and queen anne; and such a one has the same powers, prerogatives, rights, dignities, and duties, as if she had been a king. this was observed in the entrance of the last chapter, and is expressly declared by statute mar. i. st. . c. . but the queen _consort_ is the wife of the reigning king; and she by virtue of her marriage is participant of divers prerogatives above other women[a]. [footnote a: finch. l. .] and, first, she is a public person, exempt and distinct from the king; and not, like other married women, so closely connected as to have lost all legal or separate existence so long as the marriage continues. for the queen is of ability to purchase lands, and to convey them, to make leases, to grant copyholds, and do other acts of ownership, without the concurrence of her lord; which no other married woman can do[b]: a privilege as old as the saxon aera[c]. she is also capable of taking a grant from the king, which no other wife is from her husband; and in this particular she agrees with the _augusta_, or _piissima regina conjux divi imperatoris_ of the roman laws; who, according to justinian[d], was equally capable of making a grant to, and receiving one from, the emperor. the queen of england hath separate courts and officers distinct from the king's, not only in matters of ceremony, but even of law; and her attorney and solicitor general are intitled to a place within the bar of his majesty's courts, together with the king's counsel[e]. she may also sue and be sued alone, without joining her husband. she may also have a separate property in goods as well as lands, and has a right to dispose of them by will. in short, she is in all legal proceedings looked upon as a feme sole, and not as a feme covert; as a single, not as a married woman[f]. for which the reason given by sir edward coke is this: because the wisdom of the common law would not have the king (whose continual care and study is for the public, and _circa ardua regni_) to be troubled and disquieted on account of his wife's domestic affairs; and therefore it vests in the queen a power of transacting her own concerns, without the intervention of the king, as if she was an unmarried woman. [footnote b: rep. .] [footnote c: seld. _jan. angl._ . .] [footnote d: _cod._ . . .] [footnote e: selden tit. hon. . . .] [footnote f: finch. l. . co. litt. .] the queen hath also many exemptions, and minute prerogatives. for instance: she pays no toll[g]; nor is she liable to any amercement in any court[h]. but in general, unless where the law has expressly declared her exempted, she is upon the same footing with other subjects; being to all intents and purposes the king's subject, and not his equal: in like manner as, in the imperial law, "_augusta legibus soluta non est_[i]." [footnote g: co. litt. .] [footnote h: finch. l. .] [footnote i: _ff._ . . .] the queen hath also some pecuniary advantages, which form her a distinct revenue: as, in the first place, she is intitled to an antient perquisite called queen-gold or _aurum reginae_; which is a royal revenue, belonging to every queen consort during her marriage with the king, and due from every person who hath made a voluntary offering or fine to the king, amounting to ten marks or upwards, for and in consideration of any privileges, grants, licences, pardons, or other matter of royal favour conferred upon him by the king: and it is due in the proportion of one tenth part more, over and above the intire offering or fine made to the king; and becomes an actual debt of record to the queen's majesty by the mere recording the fine[k]. as, if an hundred marks of silver be given to the king for liberty to take in mortmain, or to have a fair, market, park, chase, or free warren; there the queen is intitled to ten marks in silver, or (what was formerly an equivalent denomination) to one mark in gold, by the name of queen-gold, or _aurum reginae_[l]. but no such payment is due for any aids or subsidies granted to the king in parliament or convocation; nor for fines imposed by courts on offenders, against their will; nor for voluntary presents to the king, without any consideration moving from him to the subject; nor for any sale or contract whereby the present revenues or possessions of the crown are granted away or diminished[m]. [footnote k: pryn. _aur. reg._ .] [footnote l: rep. . inst. .] [footnote m: _ibid._ pryn. . madox. hist. exch. .] the revenue of our antient queens, before and soon after the conquest, seems to have consisted in certain reservations or rents out of the demesne lands of the crown, which were expressly appropriated to her majesty, distinct from the king. it is frequent in domesday-book, after specifying the rent due to the crown, to add likewise the quantity of gold or other renders reserved to the queen[n]. these were frequently appropriated to particular purposes; to buy wool for her majesty's use[o], to purchase oyl for her lamps[p], or to furnish her attire from head to foot[q], which was frequently very costly, as one single robe in the fifth year of henry ii stood the city of london in upwards of fourscore pounds[r]. a practice somewhat similar to that of the eastern countries, where whole cities and provinces were specifically assigned to purchase particular parts of the queen's apparel[s]. and, for a farther addition to her income, this duty of queen-gold is supposed to have been originally granted; those matters of grace and favour, out of which it arose, being frequently obtained from the crown by the powerful intercession of the queen. there are traces of it's payment, though obscure ones, in the book of domesday and in the great pipe-roll of henry the first[t]. in the reign of henry the second the manner of collecting it appears to have been well understood, and it forms a distinct head in the antient dialogue of the exchequer[u] written in the time of that prince, and usually attributed to gervase of tilbury. from that time downwards it was regularly claimed and enjoyed by all the queen consorts of england till the death of henry viii; though after the accession of the tudor family the collecting of it seems to have been much neglected: and, there being no queen consort afterwards till the accession of james i, a period of near sixty years, it's very nature and quantity became then a matter of doubt: and, being referred by the king to his then chief justices and chief baron, their report of it was so very unfavorable[w], that queen anne (though she claimed it) yet never thought proper to exact it. in , car. i, a time fertile of expedients for raising money upon dormant precedents in our old records (of which ship-money was a fatal instance) the king, at the petition of his queen henrietta maria, issued out his writ for levying it; but afterwards purchased it of his consort at the price of ten thousand pounds; finding it, perhaps, too trifling and troublesome to levy. and when afterwards, at the restoration, by the abolition of the military tenures, and the fines that were consequent upon them, the little that legally remained of this revenue was reduced to almost nothing at all, in vain did mr prynne, by a treatise which does honour to his abilities as a painful and judicious antiquarian, endeavour to excite queen catherine to revive this antiquated claim. [footnote n: _bedefordscire. maner. lestone redd. per annum xxii lib. &c: ad opus reginae ii uncias auri.----herefordscire. in lene, &c, consuetud. ut praepositus manerii veniente domina sua (regina) in maner. praesentaret ei xviii oras denar. ut esset ipsa laeto animo._ pryn. append. to _aur. reg._ , .] [footnote o: _causa coadunandi lanam reginae._ domesd. _ibid._] [footnote p: _civitas lundon. pro oleo ad lampad. reginae._ _mag. rot. pip. temp. hen. ii. ibid._] [footnote q: _vicecomes berkescire, xvi l. pro cappa reginae._ (_mag. rot. pip. -- hen. ii. ibid._) _civitas lund. cordubanario reginae xx s._ _mag. rot. hen. ii._ madox hist. exch. .] [footnote r: _pro roba ad opus reginae, quater xx l. & vi s. & viii d._ _mag. rot. hen. ii. ibid._ .] [footnote s: _solere aiunt barbaros reges persarum ac syrorum--uxoribus civitates attribuere, hoc modo; haec civitas mulieri redimiculum praebeat, haec in collum, haec in crines, &c._ _cic. in verrem._ _lib._ . _c._ .] [footnote t: see madox _disceptat. epistolar._ . pryn. _aur. regin._ append. .] [footnote u: _lib._ . _c._ .] [footnote w: mr prynne, with some appearance of reason, insinuates, that their researches were very superficial. _aur. reg._ .] another antient perquisite belonging to the queen consort, mentioned by all our old writers[x], and, therefore only, worthy notice, is this: that on the taking of a whale on the coasts, which is a royal fish, it shall be divided between the king and queen; the head only being the king's property, and the tail of it the queen's. "_de sturgione observetur, quod rex illum habebit integrum: de balena vero sufficit, si rex habeat caput, et regina caudam._" the reason of this whimsical division, as assigned by our antient records[y], was, to furnish the queen's wardrobe with whalebone. [footnote x: bracton, _l._ . _c._ . britton, _c._ . fleta, _l._ . _c._ & .] [footnote y: pryn. _aur. reg._ .] but farther: though the queen is in all respects a subject, yet, in point of the security of her life and person, she is put on the same footing with the king. it is equally treason (by the statute edw. iii.) to compass or imagine the death of our lady the king's companion, as of the king himself: and to violate, or defile, the queen consort, amounts to the same high crime; as well in the person committing the fact, as in the queen herself, if consenting. a law of henry the eighth[z] made it treason also for any woman, who was not a virgin, to marry the king without informing him thereof. but this law was soon after repealed; it trespassing too strongly, as well on natural justice, as female modesty. if however the queen be accused of any species of treason, she shall (whether consort or dowager) be tried by the house of peers, as queen ann boleyn was in hen. viii. [footnote z: stat. hen. viii. c. .] the husband of a queen regnant, as prince george of denmark was to queen anne, is her subject; and may be guilty of high treason against her: but, in the instance of conjugal fidelity, he is not subjected to the same penal restrictions. for which the reason seems to be, that, if a queen consort is unfaithful to the royal bed, this may debase or bastardize the heirs to the crown; but no such danger can be consequent on the infidelity of the husband to a queen regnant. a queen _dowager_ is the widow of the king, and as such enjoys most of the privileges belonging to her as queen consort. but it is not high treason to conspire her death; or to violate her chastity, for the same reason as was before alleged, because the succession to the crown is not thereby endangered. yet still, _pro dignitate regali_, no man can marry a queen dowager without special licence from the king, on pain of forfeiting his lands and goods. this sir edward coke[a] tells us was enacted in parliament in hen. iv, though the statute be not in print. but she, though an alien born, shall still be intitled to dower after the king's demise, which no other alien is[b]. a queen dowager, when married again to a subject, doth not lose her regal dignity, as peeresses dowager do their peerage when they marry commoners. for katherine, queen dowager of henry v, though she married a private gentleman, owen ap meredith ap theodore, commonly called owen tudor; yet, by the name of katherine queen of england, maintained an action against the bishop of carlisle. and so the queen of navarre marrying with edmond, brother to king edward the first, maintained an action of dower by the name of queen of navarre[c]. [footnote a: inst. .] [footnote b: co. litt. _b._] [footnote c: inst. .] the prince of wales, or heir apparent to the crown, and also his royal consort, and the princess royal, or eldest daughter of the king, are likewise peculiarly regarded by the laws. for, by statute edw. iii, to compass or conspire the death of the former, or to violate the chastity of either of the latter, are as much high treason, as to conspire the death of the king, or violate the chastity of the queen. and this upon the same reason, as was before given; because the prince of wales is next in succession to the crown, and to violate his wife might taint the blood royal with bastardy: and the eldest daughter of the king is also alone inheritable to the crown, in failure of issue male, and therefore more respected by the laws than any of her younger sisters; insomuch that upon this, united with other (feodal) principles, while our military tenures were in force, the king might levy an aid for marrying his eldest daughter, and her only. the heir apparent to the crown is usually made prince of wales and earl of chester, by special creation, and investiture; but, being the king's eldest son, he is by inheritance duke of cornwall, without any new creation[d]. [footnote d: rep. . seld. titl. of hon. . .] the younger sons and daughters of the king, who are not in the immediate line of succession, are little farther regarded by the laws, than to give them precedence before all peers and public officers as well ecclesiastical as temporal. this is done by the statute hen. viii. c. . which enacts that no person, except the king's children, shall presume to sit or have place at the side of the cloth of estate in the parliament chamber; and that certain great officers therein named shall have precedence above all dukes, except only such as shall happen to be the king's son, brother, uncle, nephew (which sir edward coke[e] explains to signify grandson or _nepos_) or brother's or sister's son. and in , upon a question referred to all the judges by king george i, it was resolved by the opinion of ten against the other two, that the education and care of all the king's grandchildren while minors, and the care and approbation of their marriages, when grown up, did belong of right to his majesty as king of this realm, during their father's life[f]. and this may suffice for the notice, taken by law, of his majesty's royal family. [footnote e: inst. .] [footnote f: fortesc. al. - .] chapter the fifth. of the councils belonging to the king. the third point of view, in which we are to consider the king, is with regard to his councils. for, in order to assist him in the discharge of his duties, the maintenance of his dignity, and the exertion of his prerogative, the law hath assigned him a diversity of councils to advise with. . the first of these is the high court of parliament, whereof we have already treated at large. . secondly, the peers of the realm are by their birth hereditary counsellors of the crown, and may be called together by the king to impart their advice in all matters of importance to the realm, either in time of parliament, or, which hath been their principal use, when there is no parliament in being[a]. accordingly bracton[b], speaking of the nobility of his time, says they might properly be called "_consules, a consulendo; reges enim tales sibi associant ad consulendum_." and in our law books[c] it is laid down, that peers are created for two reasons; . _ad consulendum_, . _ad defendendum regem_: for which reasons the law gives them certain great and high privileges; such as freedom from arrests, &c, even when no parliament is sitting: because the law intends, that they are always assisting the king with their counsel for the commonwealth; or keeping the realm in safety by their prowess and valour. [footnote a: co. litt. .] [footnote b: _l._ . _c._ .] [footnote c: rep. . rep. . rep. .] instances of conventions of the peers, to advise the king, have been in former times very frequent; though now fallen into disuse, by reason of the more regular meetings of parliament. sir edward coke[d] gives us an extract of a record, hen. iv, concerning an exchange of lands between the king and the earl of northumberland, wherein the value of each was agreed to be settled by advice of parliament (if any should be called before the feast of st lucia) or otherwise by advice of the grand council (of peers) which the king promises to assemble before the said feast, in case no parliament shall be called. many other instances of this kind of meeting are to be found under our antient kings: though the formal method of convoking them had been so long left off, that when king charles i in issued out writs under the great seal to call a great council of all the peers of england to meet and attend his majesty at york, previous to the meeting of the long parliament, the earl of clarendon[e] mentions it as a new invention, not before heard of; that is, as he explains himself, so old, that it had not been practiced in some hundreds of years. but, though there had not so long before been an instance, nor has there been any since, of assembling them in so solemn a manner, yet, in cases of emergency, our princes have at several times thought proper to call for and consult as many of the nobility as could easily be got together: as was particularly the case with king james the second, after the landing of the prince of orange; and with the prince of orange himself, before he called that convention parliament, which afterwards called him to the throne. [footnote d: inst. .] [footnote e: hist. b. .] besides this general meeting, it is usually looked upon to be the right of each particular peer of the realm, to demand an audience of the king, and to lay before him, with decency and respect, such matters as he shall judge of importance to the public weal. and therefore, in the reign of edward ii, it was made an article of impeachment in parliament against the two hugh spencers, father and son, for which they were banished the kingdom, "that they by their evil covin would not suffer the great men of the realm, the king's good counsellors, to speak with the king, or to come near him; but only in the presence and hearing of the said hugh the father and hugh the son, or one of them, and at their will, and according to such things as pleased them[f]." [footnote f: inst. .] . a third council belonging the king, are, according to sir edward coke[g], his judges of the courts of law, for law matters. and this appears frequently in our statutes, particularly ed. iii. c. . and in other books of law. so that when the king's council is mentioned generally, it must be defined, particularized, and understood, _secundum subjectam materiam_; and, if the subject be of a legal nature, then by the king's council is understood his council for matters of law; namely, his judges. therefore when by statute ric. ii. c. . it was made a high offence to import into this kingdom any papal bulles, or other processes from rome; and it was enacted, that the offenders should be attached by their bodies, and brought before the king and his _council_ to answer for such offence; here, by the expression of king's _council_, were understood the king's judges of his courts of justice, the subject matter being legal: this being the general way of interpreting the word, _council_[h]. [footnote g: inst. .] [footnote h: inst. .] . but the principal council belonging to the king is his privy council, which is generally called, by way of eminence, _the council_. and this, according to sir edward coke's description of it[i], is a noble, honorable, and reverend assembly, of the king and such as he wills to be of his privy council, in the king's court or palace. the king's will is the sole constituent of a privy counsellor; and this also regulates their number, which of antient time was twelve or thereabouts. afterwards it increased to so large a number, that it was found inconvenient for secresy and dispatch; and therefore king charles the second in limited it to thirty: whereof fifteen were to be the principal officers of state, and those to be counsellors, _virtute officii_; and the other fifteen were composed of ten lords and five commoners of the king's choosing[k]. but since that time the number has been much augmented, and now continues indefinite. at the same time also, the antient office of lord president of the council was revived in the person of anthony earl of shaftsbury; an officer, that by the statute of hen. viii. c. . has precedence next after the lord chancellor and lord treasurer. [footnote i: inst. .] [footnote k: temple's mem. part .] privy counsellors are _made_ by the king's nomination, without either patent or grant; and, on taking the necessary oaths, they become immediately privy counsellors during the life of the king that chooses them, but subject to removal at his discretion. the _duty_ of a privy counsellor appears from the oath of office[l], which consists of seven articles: . to advise the king according to the best of his cunning and discretion. . to advise for the king's honour and good of the public, without partiality through affection, love, meed, doubt, or dread. . to keep the king's counsel secret. . to avoid corruption. . to help and strengthen the execution of what shall be there resolved. . to withstand all persons who would attempt the contrary. and, lastly, in general, . to observe, keep, and do all that a good and true counsellor ought to do to his sovereign lord. [footnote l: inst. .] the _power_ of the privy council is to enquire into all offences against the government, and to commit the offenders into custody, in order to take their trial in some of the courts of law. but their jurisdiction is only to enquire, and not to punish: and the persons committed by them are entitled to their _habeas corpus_ by statute car. i. c. . as much as if committed by an ordinary justice of the peace. and, by the same statute, the court of starchamber, and the court of requests, both of which consisted of privy counsellors, were dissolved; and it was declared illegal for them to take cognizance of any matter of property, belonging to the subjects of this kingdom. but, in plantation or admiralty causes, which arise out of the jurisdiction of this kingdom, and in matters of lunacy and ideocy (being a special flower of the prerogative) with regard to these, although they may eventually involve questions of extensive property, the privy council continues to have cognizance, being the court of appeal in such causes: or, rather, the appeal lies to the king's majesty himself, assisted by his privy council. as to the _qualifications_ of members to sit this board: any natural born subject of england is capable of being a member of the privy council; taking the proper oaths for security of the government, and the test for security of the church. but, in order to prevent any persons under foreign attachments from insinuating themselves into this important trust, as happened in the reign of king william in many instances, it is enacted by the act of settlement[m], that no person born out of the dominions of the crown of england, unless born of english parents, even though naturalized by parliament, shall be capable of being of the privy council. [footnote m: stat. . & w. iii. c. .] the _privileges_ of privy counsellors, as such, consist principally in the security which the law has given them against attempts and conspiracies to destroy their lives. for, by statute hen. vii. c. . if any of the king's servants of his houshold, conspire or imagine to take away the life of a privy counsellor, it is felony, though nothing be done upon it. and the reason of making this statute, sir edward coke[n] tells us, was because such servants have greater and readier means, either by night or by day, to destroy such as be of great authority, and near about the king: and such a conspiracy was, just before this parliament, made by some of king henry the seventh's houshold servants, and great mischief was like to have ensued thereupon. this extends only to the king's menial servants. but the statute ann. c. . goes farther, and enacts, that _any persons_ that shall unlawfully attempt to kill, or shall unlawfully assault, and strike, or wound, any privy counsellor in the execution of his office, shall be felons, and suffer death as such. this statute was made upon the daring attempt of the sieur guiscard, who stabbed mr harley, afterwards earl of oxford, with a penknife, when under examination for high crimes in a committee of the privy council. [footnote n: inst. .] the _dissolution_ of the privy council depends upon the king's pleasure; and he may, whenever he thinks proper, discharge any particular member, or the whole of it, and appoint another. by the common law also it was dissolved _ipso facto_ by the king's demise; as deriving all it's authority from him. but now, to prevent the inconveniences of having no council in being at the accession of a new prince, it is enacted by statute ann. c. . that the privy council shall continue for six months after the demise of the crown, unless sooner determined by the successor. chapter the sixth. of the king's duties. i proceed next to the duties, incumbent on the king by our constitution; in consideration of which duties his dignity and prerogative are established by the laws of the land: it being a maxim in the law, that protection and subjection are reciprocal[a]. and these reciprocal duties are what, i apprehend, were meant by the convention in , when they declared that king james had broken the _original contract_ between king and people. but however, as the terms of that original contract were in some measure disputed, being alleged to exist principally in theory, and to be only deducible by reason and the rules of natural law; in which deduction different understandings might very considerably differ; it was, after the revolution, judged proper to declare these duties expressly; and to reduce that contract to a plain certainty. so that, whatever doubts might be formerly raised by weak and scrupulous minds about the existence of such an original contract, they must now entirely cease; especially with regard to every prince, who has reigned since the year . [footnote a: rep. .] the principal duty of the king is, to govern his people according to law. _nec regibus infinita aut libera potestas_, was the constitution of our german ancestors on the continent[b]. and this is not only consonant to the principles of nature, of liberty, of reason, and of society, but has always been esteemed an express part of the common law of england, even when prerogative was at the highest. "the king," saith bracton[c], who wrote under henry iii, "ought not to be subject to man, but to god, and to the law; for the law maketh the king. let the king therefore render to the law, what the law has invested in him with regard to others; dominion, and power: for he is not truly king, where will and pleasure rules, and not the law." and again[d]; "the king also hath a superior, namely god, and also the law, by which he was made a king." thus bracton: and fortescue also[e], having first well distinguished between a monarchy absolutely and despotically regal, which is introduced by conquest and violence, and a political or civil monarchy, which arises from mutual consent; (of which last species he asserts the government of england to be) immediately lays it down as a principle, that "the king of england must rule his people according to the decrees of the laws thereof: insomuch that he is bound by an oath at his coronation to the observance and keeping of his own laws." but, to obviate all doubts and difficulties concerning this matter, it is expressly declared by statute & w. iii. c. . that "the laws of england are the birthright of the people thereof; and all the kings and queens who shall ascend the throne of this realm ought to administer the government of the same according to the said laws; and all their officers and ministers ought to serve them respectively according to the same: and therefore all the laws and statutes of this realm, for securing the established religion, and the rights and liberties of the people thereof, and all other laws and statutes of the same now in force, are by his majesty, by and with the advice and consent of the lords spiritual and temporal and commons, and by authority of the same, ratified and confirmed accordingly." [footnote b: _tac. de m.g._ _c._ .] [footnote c: _l._ . _c._ .] [footnote d: _l._ . _c._ . §. .] [footnote e: _c._ . & .] and, as to the terms of the original contract between king and people, these i apprehend to be now couched in the coronation oath, which by the statute w. & m. st. . c. . is to be administred to every king and queen, who shall succeed to the imperial crown of these realms, by one of the archbishops or bishops of the realm, in the presence of all the people; who on their parts do reciprocally take the oath of allegiance to the crown. this coronation oath is conceived in the following terms: "_the archbishop or bishop shall say_, will you solemnly promise and swear to govern the people of this kingdom of england, and the dominions thereto belonging, according to the statutes in parliament agreed on, and the laws and customs of the same?--_the king or queen shall say_, i solemnly promise so to do. "_archbishop or bishop._ will you to your power cause law and justice, in mercy, to be executed in all your judgments?--_king or queen._ i will. "_archbishop or bishop._ will you to the utmost of your power maintain the laws of god, the true profession of the gospel, and the protestant reformed religion established by the law? and will you preserve unto the bishops and clergy of this realm, and to the churches committed to their charge, all such rights and privileges as by law do or shall appertain unto them, or any of them?--_king or queen._ all this i promise to do. "_after this the king or queen, laying his or her hand upon the holy gospels, shall say_, the things which i have here before promised i will perform and keep: so help me god. _and then shall kiss the book._" this is the form of the coronation oath, as it is now prescribed by our laws: the principal articles of which appear to be at least as antient as the mirror of justices[f], and even as the time of bracton[g]: but the wording of it was changed at the revolution, because (as the statute alleges) the oath itself had been framed in doubtful words and expressions, with relation to antient laws and constitutions at this time unknown[h]. however, in what form soever it be conceived, this is most indisputably a fundamental and original express contract; though doubtless the duty of protection is impliedly as much incumbent on the sovereign before coronation as after: in the same manner as allegiance to the king becomes the duty of the subject immediately on the descent of the crown, before he has taken the oath of allegiance, or whether he ever takes it at all. this reciprocal duty of the subject will be considered in it's proper place. at present we are only to observe, that in the king's part of this original contract are expressed all the duties that a monarch can owe to his people; viz. to govern according to law: to execute judgment in mercy: and to maintain the established religion. [footnote f: _cap._ . §. .] [footnote g: _l._ . _tr._ . _c._ .] [footnote h: in the old folio abridgment of the statutes, printed by lettou and machlinia in the reign of edward iv, (_penes me_) there is preserved a copy of the old coronation oath; which, as the book is extremely scarce, i will here transcribe. _ceo est le serement que le roy jurre a soun coronement: que il gardera et meintenera lez droitez et lez franchisez de seynt esglise grauntez auncienment dez droitez roys christiens dengletere, et quil gardera toutez sez terrez honoures et dignitees droiturelx et franks del coron du roialme dengletere en tout maner dentierte sanz null maner damenusement, et lez droitez dispergez dilapidez ou perduz de la corone a soun poiair reappeller en launcien estate, et quil gardera le peas de seynt esglise et al clergie et al people de bon accorde, et quil face faire en toutez sez jugementez owel et droit justice oue discrecion et misericorde, et quil grauntera a tenure lez leyes et custumez du roialme, et a soun poiair lez face garder et affermer que lez gentez du people avont faitez et esliez, et les malveys leyz et custumes de tout oustera, et ferme peas et establie al people de soun roialme en ceo garde esgardera a soun poiair: come dieu luy aide._ _tit. sacramentum regis. fol. m. ij._] chapter the seventh. of the king's prerogative. it was observed in a former chapter[a], that one of the principal bulwarks of civil liberty, or (in other words) of the british constitution, was the limitation of the king's prerogative by bounds so certain and notorious, that it is impossible he should ever exceed them, without the consent of the people, on the one hand; or without, on the other, a violation of that original contract, which in all states impliedly, and in ours most expressly, subsists between the prince and the subject. it will now be our business to consider this prerogative minutely; to demonstrate it's necessity in general; and to mark out in the most important instances it's particular extent and restrictions: from which considerations this conclusion will evidently follow, that the powers which are vested in the crown by the laws of england, are necessary for the support of society; and do not intrench any farther on our _natural_ liberties, than is expedient for the maintenance of our _civil_. [footnote a: chap. . page .] there cannot be a stronger proof of that genuine freedom, which is the boast of this age and country, than the power of discussing and examining, with decency and respect, the limits of the king's prerogative. a topic, that in some former ages was thought too delicate and sacred to be profaned by the pen of a subject. it was ranked among the _arcana imperii_; and, like the mysteries of the _bona dea_, was not suffered to be pried into by any but such as were initiated in it's service: because perhaps the exertion of the one, like the solemnities of the other, would not bear the inspexion of a rational and sober enquiry. the glorious queen elizabeth herself made no scruple to direct her parliaments to abstain from discoursing of matters of state[b]; and it was the constant language of this favorite princess and her ministers, that even that august assembly "ought not to deal, to judge, or to meddle, with her majesty's prerogative royal[c]." and her successor, king james the first, who had imbibed high notions of the divinity of regal sway, more than once laid it down in his speeches, that "as it is atheism and blasphemy in a creature to dispute what the deity may do, so it is presumption and sedition in a subject to dispute what a king may do in the height of his power: good christians, he adds, will be content with god's will, revealed in his word; and good subjects will rest in the king's will, revealed in _his_ law[d]." [footnote b: dewes. .] [footnote c: _ibid._ .] [footnote d: king james's works. , .] but, whatever might be the sentiments of some of our princes, this was never the language of our antient constitution and laws. the limitation of the regal authority was a first and essential principle in all the gothic systems of government established in europe; though gradually driven out and overborne, by violence and chicane, in most of the kingdoms on the continent. we have seen, in the preceding chapter, the sentiments of bracton and fortescue, at the distance of two centuries from each other. and sir henry finch, under charles the first, after the lapse of two centuries more, though he lays down the law of prerogative in very strong and emphatical terms, yet qualifies it with a general restriction, in regard to the liberties of the people. "the king hath a prerogative in all things, that are not injurious to the subject; for in them all it must be remembered, that the king's prerogative stretcheth not to the doing of any wrong[e]." _nihil enim aliud potest rex, nisi id solum quod de jure potest_[f]. and here it may be some satisfaction to remark, how widely the civil law differs from our own, with regard to the authority of the laws over the prince, or (as a civilian would rather have expressed it) the authority of the prince over the laws. it is a maxim of the english law, as we have seen from bracton, that "_rex debet esse sub lege, quia lex facit regem_:" the imperial law will tell us, that "_in omnibus, imperatoris excipitur fortuna; cui ipsas leges deus subjecit_[g]." we shall not long hesitate to which of them to give the preference, as most conducive to those ends for which societies were framed, and are kept together; especially as the roman lawyers themselves seem to be sensible of the unreasonableness of their own constitution. "_decet tamen principem_," says paulus, "_servare leges, quibus ipse solutus est_[h]." this is at once laying down the principle of despotic power, and at the same time acknowleging it's absurdity. [footnote e: finch. l. , .] [footnote f: bract. _l._ . _tr._ . _c._ .] [footnote g: _nov._ . §. .] [footnote h: _ff._ . . .] by the word prerogative we usually understand that special pre-eminence, which the king hath, over and above all other persons, and out of the ordinary course of the common law, in right of his regal dignity. it signifies, in it's etymology, (from _prae_ and _rogo_) something that is required or demanded before, or in preference to, all others. and hence it follows, that it must be in it's nature singular and eccentrical; that it can only be applied to those rights and capacities which the king enjoys alone, in contradistinction to others, and not to those which he enjoys in common with any of his subjects: for if once any one prerogative of the crown could be held in common with the subject, it would cease to be prerogative any longer. and therefore finch[i] lays it down as a maxim, that the prerogative is that law in case of the king, which is law in no case of the subject. [footnote i: finch. l. .] prerogatives are either _direct_ or _incidental_. the _direct_ are such positive substantial parts of the royal character and authority, as are rooted in and spring from the king's political person, considered merely by itself, without reference to any other extrinsic circumstance; as, the right of sending embassadors, of creating peers, and of making war or peace. but such prerogatives as are _incidental_ bear always a relation to something else, distinct from the king's person; and are indeed only exceptions, in favour of the crown, to those general rules that are established for the rest of the community: such as, that no costs shall be recovered against the king; that the king can never be a joint-tenant; and that his debt shall be preferred before a debt to any of his subjects. these, and an infinite number of other instances, will better be understood, when we come regularly to consider the rules themselves, to which these incidental prerogatives are exceptions. and therefore we will at present only dwell upon the king's substantive or direct prerogatives. these substantive or direct prerogatives may again be divided into three kinds: being such as regard, first, the king's royal _character_; secondly, his royal _authority_; and, lastly, his royal _income_. these are necessary, to secure reverence to his person, obedience to his commands, and an affluent supply for the ordinary expenses of government; without all of which it is impossible to maintain the executive power in due independence and vigour. yet, in every branch of this large and extensive dominion, our free constitution has interposed such seasonable checks and restrictions, as may curb it from trampling on those liberties, which it was meant to secure and establish. the enormous weight of prerogative (if left to itself, as in arbitrary government it is) spreads havoc and destruction among all the inferior movements: but, when balanced and bridled (as with us) by it's proper counterpoise, timely and judiciously applied, it's operations are then equable and regular, it invigorates the whole machine, and enables every part to answer the end of it's construction. in the present chapter we shall only consider the two first of these divisions, which relate to the king's political _character_ and _authority_; or, in other words, his _dignity_ and regal _power_; to which last the name of prerogative is frequently narrowed and confined. the other division, which forms the royal _revenue_, will require a distinct examination; according to the known distribution of the feodal writers, who distinguish the royal prerogatives into the _majora_ and _minora regalia_, in the latter of which classes the rights of the revenue are ranked. for, to use their own words, "_majora regalia imperii praeeminentiam spectant; minora vero ad commodum pecuniarium immediate attinent; et haec proprie fiscalia sunt, et ad jus fisci pertinent_[k]." [footnote k: _peregrin. de jure fisc._ _l._ . _c._ i. _num._ .] first, then, of the royal dignity. under every monarchical establishment, it is necessary to distinguish the prince from his subjects, not only by the outward pomp and decorations of majesty, but also by ascribing to him certain qualities, as inherent in his royal capacity, distinct from and superior to those of any other individual in the nation. for, though a philosophical mind will consider the royal person merely as one man appointed by mutual consent to preside over many others, and will pay him that reverence and duty which the principles of society demand, yet the mass of mankind will be apt to grow insolent and refractory, if taught to consider their prince as a man of no greater perfection than themselves. the law therefore ascribes to the king, in his high political character, not only large powers and emoluments which form his prerogative and revenue, but likewise certain attributes of a great and transcendent nature; by which the people are led to consider him in the light of a superior being, and to pay him that awful respect, which may enable him with greater ease to carry on the business of government. this is what i understand by the royal dignity, the several branches of which we will now proceed to examine. i. and, first, the law ascribes to the king the attribute of _sovereignty_, or pre-eminence. "_rex est vicarius_," says bracton[l], "_et minister dei in terra: omnis quidem sub eo est, et ipse sub nullo, nisi tantum sub deo._" he is said to have _imperial_ dignity, and in charters before the conquest is frequently stiled _basileus_ and _imperator_, the titles respectively assumed by the emperors of the east and west[m]. his realm is declared to be an _empire_, and his crown imperial, by many acts of parliament, particularly the statutes hen. viii. c. . and hen. viii. c. ; which at the same time declare the king to be the supreme head of the realm in matters both civil and ecclesiastical, and of consequence inferior to no man upon earth, dependent on no man, accountable to no man. formerly there prevailed a ridiculous notion, propagated by the german and italian civilians, that an emperor could do many things which a king could not, (as the creation of notaries and the like) and that all kings were in some degree subordinate and subject to the emperor of germany or rome. the meaning therefore of the legislature, when it uses these terms of _empire_ and _imperial_, and applies them to the realm of england, is only to assert that our king is equally sovereign and independent within these his dominions, as any emperor is in his empire; and owes no kind of subjection to any other potentate upon earth. hence it is, that no suit or action can be brought against the king, even in civil matters, because no court can have jurisdiction over him. for all jurisdiction implies superiority of power: authority to try would be vain and idle, without an authority to redress; and the sentence of a court would be contemptible, unless that court had power to command the execution of it: but who, says finch[n], shall command the king? hence it is likewise, that by law the person of the king is sacred, even though the measures pursued in his reign be completely tyrannical and arbitrary: for no jurisdiction upon earth has power to try him in a criminal way; much less to condemn him to punishment. if any foreign jurisdiction had this power, as was formerly claimed by the pope, the independence of the kingdom would be no more: and, if such a power were vested in any domestic tribunal, there would soon be an end of the constitution, by destroying the free agency of one of the constituent parts of the sovereign legislative power. [footnote l: _l._ . _c._ .] [footnote m: seld. tit. of hon. . .] [footnote n: finch. l. .] are then, it may be asked, the subjects of england totally destitute of remedy, in case the crown should invade their rights, either by private injuries, or public oppressions? to this we may answer, that the law has provided a remedy in both cases. and, first, as to private injuries; if any person has, in point of property, a just demand upon the king, he must petition him in his court of chancery, where his chancellor will administer right as a matter of grace, though not upon compulsion[o]. and this is entirely consonant to what is laid down by the writers on natural law. "a subject, says puffendorf[p], so long as he continues a subject, hath no way to _oblige_ his prince to give him his due, when he refuses it; though no wise prince will ever refuse to stand to a lawful contract. and, if the prince gives the subject leave to enter an action against him, upon such contract, in his own courts, the action itself proceeds rather upon natural equity, than upon the municipal laws." for the end of such action is not to _compel_ the prince to observe the contract, but to _persuade_ him. and, as to personal wrongs; it is well observed by mr locke[q], "the harm which the sovereign can do in his own person not being likely to happen often, nor to extend itself far; nor being able by his single strength to subvert the laws, nor oppress the body of the people, (should any prince have so much weakness and ill nature as to endeavour to do it)--the inconveniency therefore of some particular mischiefs, that may happen sometimes, when a heady prince comes to the throne, are well recompensed by the peace of the public and security of the government, in the person of the chief magistrate being thus set out of the reach of danger." [footnote o: finch. l. .] [footnote p: law of n. and n. l. . c. .] [footnote q: on gov. p. . §. .] next, as to cases of ordinary public oppression, where the vitals of the constitution are not attacked, the law hath also assigned a remedy. for, as a king cannot misuse his power, without the advice of evil counsellors, and the assistance of wicked ministers, these men may be examined and punished. the constitution has therefore provided, by means of indictments, and parliamentary impeachments, that no man shall dare to assist the crown in contradiction to the laws of the land. but it is at the same time a maxim in those laws, that the king himself can do no wrong; since it would be a great weakness and absurdity in any system of positive law, to define any possible wrong, without any possible redress. for, as to such public oppressions as tend to dissolve the constitution, and subvert the fundamentals of government, they are cases which the law will not, out of decency, suppose; being incapable of distrusting those, whom it has invested with any part of the supreme power; since such distrust would render the exercise of that power precarious and impracticable. for, whereever [transcriber's note: wherever] the law expresses it's distrust of abuse of power, it always vests a superior coercive authority in some other hand to correct it; the very notion of which destroys the idea of sovereignty. if therefore (for example) the two houses of parliament, or either of them, had avowedly a right to animadvert on the king, or each other, or if the king had a right to animadvert on either of the houses, that branch of the legislature, so subject to animadversion, would instantly cease to be part of the supreme power; the ballance of the constitution would be overturned; and that branch or branches, in which this jurisdiction resided, would be completely sovereign. the supposition of _law_ therefore is, that neither the king nor either house of parliament (collectively taken) is capable of doing any wrong; since in such cases the law feels itself incapable of furnishing any adequate remedy. for which reason all oppressions, which may happen to spring from any branch of the sovereign power, must necessarily be out of the reach of any _stated rule_, or _express legal_ provision: but, if ever they unfortunately happen, the prudence of the times must provide new remedies upon new emergencies. indeed, it is found by experience, that whenever the unconstitutional oppressions, even of the sovereign power, advance with gigantic strides and threaten desolation to a state, mankind will not be reasoned out of the feelings of humanity; nor will sacrifice their liberty by a scrupulous adherence to those political maxims, which were originally established to preserve it. and therefore, though the positive laws are silent, experience will furnish us with a very remarkable case, wherein nature and reason prevailed. when king james the second invaded the fundamental constitution of the realm, the convention declared an abdication, whereby the throne was rendered vacant, which induced a new settlement of the crown. and so far as this precedent leads, and no farther, we may now be allowed to lay down the _law_ of redress against public oppression. if therefore any future prince should endeavour to subvert the constitution by breaking the original contract between king and people, should violate the fundamental laws, and should withdraw himself out of the kingdom; we are now authorized to declare that this conjunction of circumstances would amount to an abdication, and the throne would be thereby vacant. but it is not for us to say, that any one, or two, of these ingredients would amount to such a situation; for there our precedent would fail us. in these therefore, or other circumstances, which a fertile imagination may furnish, since both law and history are silent, it becomes us to be silent too; leaving to future generations, whenever necessity and the safety of the whole shall require it, the exertion of those inherent (though latent) powers of society, which no climate, no time, no constitution, no contract, can ever destroy or diminish. ii. besides the attribute of sovereignty, the law also ascribes to the king, in his political capacity, absolute _perfection_. the king can do no wrong. which antient and fundamental maxim is not to be understood, as if every thing transacted by the government was of course just and lawful, but means only two things. first, that whatever is exceptionable in the conduct of public affairs is not to be imputed to the king, nor is he answerable for it personally to his people: for this doctrine would totally destroy that constitutional independence of the crown, which is necessary for the balance of power, in our free and active, and therefore compounded, constitution. and, secondly, it means that the prerogative of the crown extends not to do any injury: it is created for the benefit of the people, and therefore cannot be exerted to their prejudice[r]. [footnote r: plowd. .] the king, moreover, is not only incapable of _doing_ wrong, but even of _thinking_ wrong: he can never mean to do an improper thing: in him is no folly or weakness. and therefore, if the crown should be induced to grant any franchise or privilege to a subject contrary to reason, or in any wise prejudicial to the commonwealth, or a private person, the law will not suppose the king to have meant either an unwise or an injurious action, but declares that the king was deceived in his grant; and thereupon such grant is rendered void, merely upon the foundation of fraud and deception, either by or upon those agents, whom the crown has thought proper to employ. for the law will not cast an imputation on that magistrate whom it entrusts with the executive power, as if he was capable of intentionally disregarding his trust: but attributes to mere imposition (to which the most perfect of sublunary beings must still continue liable) those little inadvertencies, which, if charged on the will of the prince, might lessen him in the eyes of his subjects. yet still, notwithstanding this personal perfection, which the law attributes to the sovereign, the constitution has allowed a latitude of supposing the contrary, in respect to both houses of parliament; each of which, in it's turn, hath exerted the right of remonstrating and complaining to the king even of those acts of royalty, which are most properly and personally his own; such as messages signed by himself, and speeches delivered from the throne. and yet, such is the reverence which is paid to the royal person, that though the two houses have an undoubted right to consider these acts of state in any light whatever, and accordingly treat them in their addresses as personally proceeding from the prince, yet, among themselves, (to preserve the more perfect decency, and for the greater freedom of debate) they usually suppose them to flow from the advice of the administration. but the privilege of canvassing thus freely the personal acts of the sovereign (either directly, or even through the medium of his reputed advisers) belongs to no individual, but is confined to those august assemblies: and there too the objections must be proposed with the utmost respect and deference. one member was sent to the tower[s], for suggesting that his majesty's answer to the address of the commons contained "high words, to fright the members out of their duty;" and another[t], for saying that a part of the king's speech "seemed rather to be calculated for the meridian of germany than great britain." [footnote s: com. journ. nov. .] [footnote t: com. journ. dec. .] in farther pursuance of this principle, the law also determines that in the king can be no negligence, or _laches_, and therefore no delay will bar his right. _nullum tempus occurrit regi_ is the standing maxim upon all occasions: for the law intends that the king is always busied for the public good, and therefore has not leisure to assert his right within the times limited to subjects[u]. in the king also can be no stain or corruption of blood: for if the heir to the crown were attainted of treason or felony, and afterwards the crown should descend to him, this would purge the attainder _ipso facto_[w]. and therefore when henry vii, who as earl of richmond stood attainted, came to the crown, it was not thought necessary to pass an act of parliament to reverse this attainder; because, as lord bacon in his history of that prince informs us, it was agreed that the assumption of the crown had at once purged all attainders. neither can the king in judgment of law, as king, ever be a minor or under age; and therefore his royal grants and assents to acts of parliament are good, though he has not in his natural capacity attained the legal age of twenty one[x]. by a statute indeed, hen. viii. c. . power was given to future kings to rescind and revoke all acts of parliament that should be made while they were under the age of twenty four: but this was repealed by the statute edw. vi. c. . so far as related to that prince; and both statutes are declared to be determined by geo. ii. c. . it hath also been usually thought prudent, when the heir apparent has been very young, to appoint a protector, guardian, or regent, for a limited time: but the very necessity of such extraordinary provision is sufficient to demonstrate the truth of that maxim of the common law, that in the king is no minority; and therefore he hath no legal guardian[y]. [footnote u: finch. l. . co. litt. _b._] [footnote w: finch. l. .] [footnote x: co. litt. .] [footnote y: the methods of appointing this guardian or regent have been so various, and the duration of his power so uncertain, that from thence alone it may be collected that his office is unknown to the common law; and therefore (as sir edward coke says, inst. .) the surest way is to have him made by authority of the great council in parliament. the earl of pembroke by his own authority assumed, in very troublesome times, the regency of henry iii, who was then only nine years old; but was declared of full age by the pope at seventeen, confirmed the great charter at eighteen, and took upon him the administration of the government at twenty. a guardian and council of regency were named for edward iii, by the parliament which deposed his father; the young king being then fifteen, and not assuming the government till three years after. when richard ii succeeded at the age of eleven, the duke of lancaster took upon him the management of the kingdom, till the parliament met, which appointed a nominal council to assist him. henry v on his death-bed named a regent and a guardian for his infant son henry vi, then nine months old: but the parliament altered his disposition, and appointed a protector and council, with a special limited authority. both these princes remained in a state of pupillage till the age of twenty three. edward v, at the age of thirteen, was recommended by his father to the care of the duke of glocester; who was declared protector by the privy council. the statutes hen. viii. c. . and hen. viii. c. . provided, that the successor, if a male and under eighteen, or if a female and under sixteen, should be till such age in the governance of his or her natural mother, (if approved by the king) and such other counsellors as his majesty should by will or otherwise appoint: and he accordingly appointed his sixteen executors to have the government of his son, edward vi, and the kingdom; which executors elected the earl of hertford protector. the statute geo. ii. c. . in case the crown should descend to any of the children of frederick late prince of wales under the age of eighteen, appoints the princess dowager;--and that of geo. iii. c. . in case of a like descent to any of his present majesty's children, empowers the king to name either the queen, the princess dowager, or any descendant of king george ii residing in this kingdom;--to be guardian and regent, till the successor attains such age, assisted by a council of regency: the powers of them all being expressly defined and set down in the several acts.] iii. a third attribute of the king's majesty is his _perpetuity_. the law ascribes to him, in his political capacity, an absolute immortality. the king never dies. henry, edward, or george may die; but the king survives them all. for immediately upon the decease of the reigning prince in his natural capacity, his kingship or imperial dignity, by act of law, without any _interregnum_ or interval, is vested at once in his heir; who is, _eo instanti_, king to all intents and purposes. and so tender is the law of supposing even a possibility of his death, that his natural dissolution is generally called his _demise_; _dimissio regis, vel coronae_: an expression which signifies merely a transfer of property; for, as is observed in plowden[z], when we say the demise of the crown, we mean only that in consequence of the disunion of the king's body natural from his body politic, the kingdom is transferred or demised to his successor; and so the royal dignity remains perpetual. thus too, when edward the fourth, in the tenth year of his reign, was driven from his throne for a few months by the house of lancaster, this temporary transfer of his dignity was denominated his _demise_; and all process was held to be discontinued, as upon a natural death of the king[a]. [footnote z: plowd. . .] [footnote a: m. hen. vi. pl. - .] we are next to consider those branches of the royal prerogative, which invest this our sovereign lord, thus all-perfect and immortal in his kingly capacity, with a number of authorities and powers; in the exertion whereof consists the executive part of government. this is wisely placed in a single hand by the british constitution, for the sake of unanimity, strength and dispatch. were it placed in many hands, it would be subject to many wills: many wills, if disunited and drawing different ways, create weakness in a government: and to unite those several wills, and reduce them to one, is a work of more time and delay than the exigencies of state will afford. the king of england is therefore not only the chief, but properly the sole, magistrate of the nation; all others acting by commission from, and in due subordination to him: in like manner as, upon the great revolution in the roman state, all the powers of the antient magistracy of the commonwealth were concentred in the new emperor; so that, as gravina[b] expresses it, "_in ejus unius persona veteris reipublicae vis atque majestas per cumulatas magistratuum potestates exprimebatur_." [footnote b: _orig._ . §. .] after what has been premised in this chapter, i shall not (i trust) be considered as an advocate for arbitrary power, when i lay it down as a principle, that in the exertion of lawful prerogative, the king is and ought to be absolute; that is, so far absolute, that there is no legal authority that can either delay or resist him. he may reject what bills, may make what treaties, may coin what money, may create what peers, may pardon what offences he pleases: unless where the constitution hath expressly, or by evident consequence, laid down some exception or boundary; declaring, that thus far the prerogative shall go and no farther. for otherwise the power of the crown would indeed be but a name and a shadow, insufficient for the ends of government, if, where it's jurisdiction is clearly established and allowed, any man or body of men were permitted to disobey it, in the ordinary course of law: i say, in the _ordinary_ course of law; for i do not now speak of those _extraordinary_ recourses to first principles, which are necessary when the contracts of society are in danger of dissolution, and the law proves too weak a defence against the violence of fraud or oppression. and yet the want of attending to this obvious distinction has occasioned these doctrines, of absolute power in the prince and of national resistance by the people, to be much misunderstood and perverted by the advocates for slavery on the one hand, and the demagogues of faction on the other. the former, observing the absolute sovereignty and transcendent dominion of the crown laid down (as it certainly is) most strongly and emphatically in our lawbooks, as well as our homilies, have denied that any case can be excepted from so general and positive a rule; forgetting how impossible it is, in any practical system of laws, to point out beforehand those eccentrical remedies, which the sudden emergence of national distress may dictate, and which that alone can justify. on the other hand, over-zealous republicans, feeling the absurdity of unlimited passive obedience, have fancifully (or sometimes factiously) gone over to the other extreme: and, because resistance is justifiable to the person of the prince when the being of the state is endangered, and the public voice proclaims such resistance necessary, they have therefore allowed to every individual the right of determining this expedience, and of employing private force to resist even private oppression. a doctrine productive of anarchy, and (in consequence) equally fatal to civil liberty as tyranny itself. for civil liberty, rightly understood, consists in protecting the rights of individuals by the united force of society: society cannot be maintained, and of course can exert no protection, without obedience to some sovereign power: and obedience is an empty name, if every individual has a right to decide how far he himself shall obey. in the exertion therefore of those prerogatives, which the law has given him, the king is irresistible and absolute, according to the forms of the constitution. and yet, if the consequence of that exertion be manifestly to the grievance or dishonour of the kingdom, the parliament will call his advisers to a just and severe account. for prerogative consisting (as mr locke[c] has well defined it) in the discretionary power of acting for the public good, where the positive laws are silent, if that discretionary power be abused to the public detriment, such prerogative is exerted in an unconstitutional manner. thus the king may make a treaty with a foreign state, which shall irrevocably bind the nation; and yet, when such treaties have been judged pernicious, impeachments have pursued those ministers, by whose agency or advice they were concluded. [footnote c: on gov. . §. .] the prerogatives of the crown (in the sense under which we are now considering them) respect either this nation's intercourse with foreign nations, or it's own domestic government and civil polity. with regard to foreign concerns, the king is the delegate or representative of his people. it is impossible that the individuals of a state, in their collective capacity, can transact the affairs of that state with another community equally numerous as themselves. unanimity must be wanting to their measures, and strength to the execution of their counsels. in the king therefore, as in a center, all the rays of his people are united, and form by that union a consistency, splendor, and power, that make him feared and respected by foreign potentates; who would scruple to enter into any engagements, that must afterwards be revised and ratified by a popular assembly. what is done by the royal authority, with regard to foreign powers, is the act of the whole nation: what is done without the king's concurrence is the act only of private men. and so far is this point carried by our law, that it hath been held[d], that should all the subjects of england make war with a king in league with the king of england, without the royal assent, such war is no breach of the league. and, by the statute hen. v. c. . any subject committing acts of hostility upon any nation in league with the king, was declared to be guilty of high treason: and, though that act was repealed by the statute hen. vi. c. . so far as relates to the making this offence high treason, yet still it remains a very great offence against the law of nations, and punishable by our laws, either capitally or otherwise, according to the circumstances of the case. [footnote d: inst. .] i. the king therefore, considered as the representative of his people, has the sole power of sending embassadors to foreign states, and receiving embassadors at home. this may lead us into a short enquiry, how far the municipal laws of england intermeddle with or protect the rights of these messengers from one potentate to another, whom we call embassadors. the rights, the powers, the duties, and the privileges of embassadors are determined by the law of nature and nations, and not by any municipal constitutions. for, as they represent the persons of their respective masters, who owe no subjection to any laws but those of their own country, their actions are not subject to the control of the private law of that state, wherein they are appointed to reside. he that is subject to the coercion of laws is necessarily dependent on that power by whom those laws were made: but an embassador ought to be independent of every power, except that by which he is sent; and of consequence ought not to be subject to the mere municipal laws of that nation, wherein he is to exercise his functions. if he grossly offends, or makes an ill use of his character, he may be sent home and accused before his master[e]; who is bound either to do justice upon him, or avow himself the accomplice of his crimes[f]. but there is great dispute among the writers on the laws of nations, whether this exemption of embassadors extends to all crimes, as well natural as positive; or whether it only extends to such as are _mala prohibita_, as coining, and not to those that are _mala in se_, as murder[g]. our law seems to have formerly taken in the restriction, as well as the general exemption. for it has been held, both by our common lawyers and civilians[h], that an embassador is privileged by the law of nature and nations; and yet, if he commits any offence against the law of reason and nature, he shall lose his privilege[i]: and that therefore, if an embassador conspires the death of the king in whose land he is, he may be condemned and executed for treason; but if he commits any other species of treason, it is otherwise, and he must be sent to his own kingdom[k]. and these positions seem to be built upon good appearance of reason. for since, as we have formerly shewn, all municipal laws act in subordination to the primary law of nature, and, where they annex a punishment to natural crimes, are only declaratory of and auxiliary to that law; therefore to this natural, universal rule of justice embassadors, as well as other men, are subject in all countries; and of consequence it is reasonable that wherever they transgress it, there they shall be liable to make atonement[l]. but, however these principles might formerly obtain, the general practice of europe seems now to have adopted the sentiments of the learned grotius, that the security of embassadors is of more importance than the punishment of a particular crime[m]. and therefore few, if any, examples have happened within a century past, where an embassador has been punished for any offence, however atrocious in it's nature. [footnote e: as was done with count gyllenberg the swedish minister to great britain, _a.d._ .] [footnote f: sp. l. . .] [footnote g: van leeuwen _in ff._ . . . barbeyrac's puff. l. . c. . §. . & . van bynkershoek _de foro legator._ c. , , .] [footnote h: roll. rep. . bulstr. .] [footnote i: inst. .] [footnote k: roll. rep. .] [footnote l: foster's reports. .] [footnote m: _securitas legatorum utilitati quae ex poena est praeponderat._ _de jur. b. & p._ . . . .] in respect to civil suits, all the foreign jurists agree, that neither an embassador, nor any of his train or _comites_, can be prosecuted for any debt or contract in the courts of that kingdom wherein he is sent to reside. yet sir edward coke maintains, that, if an embassador make a contract which is good _jure gentium_, he shall answer for it here[n]. and the truth is, we find no traces in our lawbooks of allowing any privilege to embassadors or their domestics, even in civil suits, previous to the reign of queen anne; when an embassador from peter the great, czar of muscovy, was actually arrested and taken out of his coach in london, in , for debts which he had there contracted. this the czar resented very highly, and demanded (we are told) that the officers who made the arrest should be punished with death. but the queen (to the amazement of that despotic court) directed her minister to inform him, "that the law of england had not yet protected embassadors from the payment of their lawful debts; that therefore the arrest was no offence by the laws; and that she could inflict no punishment upon any, the meanest, of her subjects, unless warranted by the law of the land[o]." to satisfy however the clamours of the foreign ministers (who made it a common cause) as well as to appease the wrath of peter[p], a new statute was enacted by parliament[q], reciting the arrest which had been made, "in contempt of the protection granted by her majesty, contrary to the law of nations, and in prejudice of the rights and privileges, which embassadors and other public ministers have at all times been thereby possessed of, and ought to be kept sacred and inviolable:" wherefore it enacts, that for the future all process whereby the person of any embassador, or of his domestic or domestic servant, may be arrested, or his goods distreined or seised, shall be utterly null and void; and the persons prosecuting, soliciting, or executing such process shall be deemed violaters of the law of nations, and disturbers of the public repose; and shall suffer such penalties and corporal punishment as the lord chancellor and the two chief justices, or any two of them, shall think fit. but it is expressly provided, that no trader, within the description of the bankrupt laws, who shall be in the service of any embassador, shall be privileged or protected by this act; nor shall any one be punished for arresting an embassador's servant, unless his name be registred with the secretary of state, and by him transmitted to the sheriffs of london and middlesex. exceptions, that are strictly conformable to the rights of embassadors[r], as observed in the most civilized countries. and, in consequence of this statute, thus enforcing the law of nations, these privileges are now usually allowed in the courts of common law[s]. [footnote n: inst. .] [footnote o: mod. un. hist. xxxv. .] [footnote p: a copy of the act made upon this occasion, very elegantly engrossed and illuminated, was sent him to moscow as a present.] [footnote q: ann. c. .] [footnote r: _saepe quaesitum est an comitum numero et jure habendi sunt, qui legatum comitantur, non ut instructior fiat legatio, sed unice ut lucro suo consulant, institores forte et mercatores. et, quamvis hos saepe defenderint et comitum loco habere voluerint legati, apparet tamen satis eo non pertinere, qui in legati legationisve officio non sunt. quum autem ea res nonnunquam turbas dederit, optimo exemplo in quibusdam aulis olim receptum fuit, ut legatus teneretur exhibere nomenclaturam comitum suorum._ van bynkersh. _c._ . _prope finem_.] [footnote s: fitzg. . stra. .] ii. it is also the king's prerogative to make treaties, leagues, and alliances with foreign states and princes. for it is by the law of nations essential to the goodness of a league, that it be made by the sovereign power[t]; and then it is binding upon the whole community: and in england the sovereign power, _quoad hoc_, is vested in the person of the king. whatever contracts therefore he engages in, no other power in the kingdom can legally delay, resist, or annul. and yet, lest this plenitude of authority should be abused to the detriment of the public, the constitution (as was hinted before) hath here interposed a check, by the means of parliamentary impeachment, for the punishment of such ministers as advise or conclude any treaty, which shall afterwards be judged to derogate from the honour and interest of the nation. [footnote t: puff. l. of n. b. . c. . §. .] iii. upon the same principle the king has also the sole prerogative of making war and peace. for it is held by all the writers on the law of nature and nations, that the right of making war, which by nature subsisted in every individual, is given up by all private persons that enter into society, and is vested in the sovereign power[u]: and this right is given up not only by individuals, but even by the intire body of people, that are under the dominion of a sovereign. it would indeed be extremely improper, that any number of subjects should have the power of binding the supreme magistrate, and putting him against his will in a state of war. whatever hostilities therefore may be committed by private citizens, the state ought not to be affected thereby; unless that should justify their proceedings, and thereby become partner in the guilt. such unauthorized voluntiers in violence are not ranked among open enemies, but are treated like pirates and robbers: according to that rule of the civil law[w]; _hostes hi sunt qui nobis, aut quibus nos, publice bellum decrevimus: caeteri latrones aut praedones sunt_. and the reason which is given by grotius[x], why according to the law of nations a denunciation of war ought always to precede the actual commencement of hostilities, is not so much that the enemy may be put upon his guard, (which is matter rather of magnanimity than right) but that it may be certainly clear that the war is not undertaken by private persons, but by the will of the whole community; whose right of willing is in this case transferred to the supreme magistrate by the fundamental laws of society. so that, in order to make a war completely effectual, it is necessary with us in england that it be publicly declared and duly proclaimed by the king's authority; and, then, all parts of both the contending nations, from the highest to the lowest, are bound by it. and, wherever the right resides of beginning a national war, there also must reside the right of ending it, or the power of making peace. and the same check of parliamentary impeachment, for improper or inglorious conduct, in beginning, conducting, or concluding a national war, is in general sufficient to restrain the ministers of the crown from a wanton or injurious exertion of this great prerogative. [footnote u: puff. l. . c. . §. . and barbeyr. _in loc._] [footnote w: _ff._ . . .] [footnote x: _de jur. b. & p._ _l._ . _c._ . §. .] iv. but, as the delay of making war may sometimes be detrimental to individuals who have suffered by depredations from foreign potentates, our laws have in some respect armed the subject with powers to impel the prerogative; by directing the ministers of the crown to issue letters of marque and reprisal upon due demand: the prerogative of granting which is nearly related to, and plainly derived from, that other of making war; this being indeed only an incomplete state of hostilities, and generally ending in a formal denunciation of war. these letters are grantable by the law of nations[y], whenever the subjects of one state are oppressed and injured by those of another; and justice is denied by that state to which the oppressor belongs. in this case letters of marque and reprisal (words in themselves synonimous and signifying a taking in return) may be obtained, in order to seise the bodies or goods of the subjects of the offending state, until satisfaction be made, wherever they happen to be found. indeed this custom of reprisals seems dictated by nature herself; and accordingly we find in the most antient times very notable instances of it[z]. but here the necessity is obvious of calling in the sovereign power, to determine when reprisals may be made; else every private sufferer would be a judge in his own cause. and, in pursuance of this principle, it is with us declared by the statute hen. v. c. . that, if any subjects of the realm are oppressed in time of truce by any foreigners, the king will grant marque in due form, to all that feel themselves grieved. which form is thus directed to be observed: the sufferer must first apply to the lord privy-seal, and he shall make out letters of request under the privy seal; and, if, after such request of satisfaction made, the party required do not within convenient time make due satisfaction or restitution to the party grieved, the lord chancellor shall make him out letters of marque under the great seal; and by virtue of these he may attack and seise the property of the aggressor nation, without hazard of being condemned as a robber or pirate. [footnote y: grot. _de jur. b. & p._ _l._ . _c._ . §. & .] [footnote z: see the account given by nestor, in the eleventh book of the iliad, of the reprisals made by himself on the epeian nation; from whom he took a multitude of cattle, as a satisfaction for a prize won at the elian games by his father neleus, and for debts due to many private subjects of the pylian kingdom: out of which booty the king took three hundred head of cattle for his own demand, and the rest were equitably divided among the other creditors.] v. upon exactly the same reason stands the prerogative of granting safe-conducts, without which by the law of nations no member of one society has a right to intrude into another. and therefore puffendorf very justly resolves[a], that it is left in the power of all states, to take such measures about the admission of strangers, as they think convenient; those being ever excepted who are driven on the coasts by necessity, or by any cause that deserves pity or compassion. great tenderness is shewn by our laws, not only to foreigners in distress (as will appear when we come to speak of shipwrecks) but with regard also to the admission of strangers who come spontaneously. for so long as their nation continues at peace with ours, and they themselves behave peaceably, they are under the king's protection; though liable to be sent home whenever the king sees occasion. but no subject of a nation at war with us can, by the law of nations, come into the realm, nor can travel himself upon the high seas, or send his goods and merchandize from one place to another, without danger of being seized by our subjects, unless he has letters of safe-conduct; which by divers antient statutes[b] must be granted under the king's great seal and inrolled in chancery, or else are of no effect: the king being supposed the best judge of such emergencies, as may deserve exception from the general law of arms. [footnote a: law of n. and n. b. . c. . §. .] [footnote b: hen. vi. c. . hen. vi. c. . hen. vi. c. .] indeed the law of england, as a commercial country, pays a very particular regard to foreign merchants in innumerable instances. one i cannot omit to mention: that by _magna carta_[c] it is provided, that all merchants (unless publickly prohibited beforehand) shall have safe conduct to depart from, to come into, to tarry in, and to go through england, for the exercise of merchandize, without any unreasonable imposts, except in time of war: and, if a war breaks out between us and their country, they shall be attached (if in england) without harm of body or goods, till the king or his chief justiciary be informed how our merchants are treated in the land with which we are at war; and, if ours be secure in that land, they shall be secure in ours. this seems to have been a common rule of equity among all the northern nations; for we learn from stiernhook[d], that it was a maxim among the goths and swedes, "_quam legem exteri nobis posuere, eandem illis ponemus_." but it is somewhat extraordinary, that it should have found a place in _magna carta_, a mere interior treaty between the king and his natural-born subjects; which occasions the learned montesquieu to remark with a degree of admiration, "that the english have made the protection of _foreign_ merchants one of the articles of their _national_ liberty[e]." but indeed it well justifies another observation which he has made[f], "that the english know better than any other people upon earth, how to value at the same time these three great advantages, religion, liberty, and commerce." very different from the genius of the roman people; who in their manners, their constitution, and even in their laws, treated commerce as a dishonorable employment, and prohibited the exercise thereof to persons of birth, or rank, or fortune[g]: and equally different from the bigotry of the canonists, who looked on trade as inconsistent with christianity[h], and determined at the council of melfi, under pope urban ii, _a.d._ , that it was impossible with a safe conscience to exercise any traffic, or follow the profession of the law[i]. [footnote c: _c._ .] [footnote d: _de jure sueon._ _l._ . _c._ .] [footnote e: sp. l. . .] [footnote f: sp. l. . .] [footnote g: _nobiliores natalibus, et honorum luce conspicuos, et patrimonio ditiores, perniciosum urbibus mercimonium exercere prohibemus._ _c._ . .] [footnote h: _homo mercator vix aut nunquam potest deo placere: et ideo nullus christianus debet esse mercator; aut si voluerit esse, projiciatur de ecclesia dei._ _decret._ . . .] [footnote i: _falsa fit poenitentia [laici] cum penitus ab officio curiali vel negotiali non recedit, quae sine peccatis agi ulla ratione non praevalet._ _act. concil. apud baron._ _c._ .] these are the principal prerogatives of the king, respecting this nation's intercourse with foreign nations; in all of which he is considered as the delegate or representative of his people. but in domestic affairs he is considered in a great variety of characters, and from thence there arises an abundant number of other prerogatives. i. first, he is a constituent part of the supreme legislative power; and, as such, has the prerogative of rejecting such provisions in parliament, as he judges improper to be passed. the expediency of which constitution has before been evinced at large[k]. i shall only farther remark, that the king is not bound by any act of parliament, unless he be named therein by special and particular words. the most general words that can be devised ("any person or persons, bodies politic, or corporate, _&c._") affect not him in the least, if they may tend to restrain or diminish any of his rights or interests[l]. for it would be of most mischievous consequence to the public, if the strength of the executive power were liable to be curtailed without it's own express consent, by constructions and implications of the subject. yet where an act of parliament is expressly made for the preservation of public rights and the suppression of public wrongs, and does not interfere with the established rights of the crown, it is said to be binding as well upon the king as upon the subject[m]: and, likewise, the king may take the benefit of any particular act, though he be not especially named[n]. [footnote k: ch. . pag. .] [footnote l: rep. _b._] [footnote m: rep. .] [footnote n: rep. .] ii. the king is considered, in the next place, as the generalissimo, or the first in military command, within the kingdom. the great end of society is to protect the weakness of individuals by the united strength of the community: and the principal use of government is to direct that united strength in the best and most effectual manner, to answer the end proposed. monarchical government is allowed to be the fittest of any for this purpose: it follows therefore, from the very end of it's institution, that in a monarchy the military power must be trusted in the hands of the prince. in this capacity therefore, of general of the kingdom, the king has the sole power of raising and regulating fleets and armies. of the manner in which they are raised and regulated i shall speak more, when i come to consider the military state. we are now only to consider the prerogative of enlisting and of governing them: which indeed was disputed and claimed, contrary to all reason and precedent, by the long parliament of king charles i; but, upon the restoration of his son, was solemnly declared by the statute car. ii. c. . to be in the king alone: for that the sole supreme government and command of the militia within all his majesty's realms and dominions, and of all forces by sea and land, and of all forts and places of strength, ever was and is the undoubted right of his majesty, and his royal predecessors, kings and queens of england; and that both or either house of parliament cannot, nor ought to, pretend to the same. this statute, it is obvious to observe, extends not only to fleets and armies, but also to forts, and other places of strength, within the realm; the sole prerogative as well of erecting, as manning and governing of which, belongs to the king in his capacity of general of the kingdom[o]: and all lands were formerly subject to a tax, for building of castles wherever the king thought proper. this was one of the three things, from contributing to the performance of which no lands were exempted; and therefore called by our saxon ancestors the _trinoda necessitas: sc. pontis reparatio, arcis constructio, et expeditio contra hostem_[p]. and this they were called upon to do so often, that, as sir edward coke from m. paris assures us[q], there were in the time of henry ii castles subsisting in england. the inconvenience of which, when granted out to private subjects, the lordly barons of those times, was severely felt by the whole kingdom; for, as william of newbury remarks in the reign of king stephen, "_erant in anglia quodammodo tot reges vel potius tyranni, quot domini castellorum_:" but it was felt by none more sensibly than by two succeeding princes, king john and king henry iii. and therefore, the greatest part of them being demolished in the barons' wars, the kings of after times have been very cautious of suffering them to be rebuilt in a fortified manner: and sir edward coke lays it down[r], that no subject can build a castle, or house of strength imbatteled, or other fortress defensible, without the licence of the king; for the danger which might ensue, if every man at his pleasure might do it. [footnote o: inst. .] [footnote p: cowel's interpr. _tit. castellorum operatio_. seld. _jan. angl._ . .] [footnote q: inst. .] [footnote r: inst. .] to this branch of the prerogative may be referred the power vested in his majesty, by statutes car. ii. c. . and geo. ii. c. . of prohibiting the exportation of arms or ammunition out of this kingdom, under severe penalties: and likewise the right which the king has, whenever he sees proper, of confining his subjects to stay within the realm, or of recalling them when beyond the seas. by the common law[s], every man may go out of the realm for whatever cause he pleaseth, without obtaining the king's leave; provided he is under no injunction of staying at home: (which liberty was expressly declared in king john's great charter, though left out in that of henry iii) but, because that every man ought of right to defend the king and his realm, therefore the king at his pleasure may command him by his writ that he go not beyond the seas, or out of the realm without licence; and if he do the contrary, he shall be punished for disobeying the king's command. some persons there antiently were, that, by reason of their stations, were under a perpetual prohibition of going abroad without licence obtained; among which were reckoned all peers, on account of their being counsellors of the crown; all knights, who were bound to defend the kingdom from invasions; all ecclesiastics, who were expressly confined by cap. . of the constitutions of clarendon, on account of their attachment in the times of popery to the see of rome; all archers and other artificers, lest they should instruct foreigners to rival us in their several trades and manufactures. this was law in the times of britton[t], who wrote in the reign of edward i: and sir edward coke[u] gives us many instances to this effect in the time of edward iii. in the succeeding reign the affair of travelling wore a very different aspect: an act of parliament being made[w], forbidding all persons whatever to go abroad without licence; _except_ only the lords and other great men of the realm; and true and notable merchants; and the king's soldiers. but this act was repealed by the statute jac. i. c. . and at present every body has, or at least assumes, the liberty of going abroad when he pleases. yet undoubtedly if the king, by writ of _ne exeat regnum_, under his great seal or privy seal, thinks proper to prohibit him from so doing; or if the king sends a writ to any man, when abroad, commanding his return; and in either case the subject disobeys; it is a high contempt of the king's prerogative, for which the offender's lands shall be seised till he return; and then he is liable to fine and imprisonment[x]. [footnote s: f.n.b. .] [footnote t: c. .] [footnote u: inst. .] [footnote w: ric. ii. c. .] [footnote x: hawk. p.c. .] iii. another capacity, in which the king is considered in domestic affairs, is as the fountain of justice and general conservator of the peace of the kingdom. by the fountain of justice the law does not mean the _author_ or _original_, but only the _distributor_. justice is not derived from the king, as from his _free gift_; but he is the steward of the public, to dispense it to whom it is _due_[y]. he is not the spring, but the reservoir; from whence right and equity are conducted, by a thousand chanels, to every individual. the original power of judicature, by the fundamental principles of society, is lodged in the society at large: but as it would be impracticable to render complete justice to every individual, by the people in their collective capacity, therefore every nation has committed that power to certain select magistrates, who with more ease and expedition can hear and determine complaints; and in england this authority has immemorially been exercised by the king or his substitutes. he therefore has alone the right of erecting courts of judicature: for, though the constitution of the kingdom hath entrusted him with the whole executive power of the laws, it is impossible, as well as improper, that he should personally carry into execution this great and extensive trust: it is consequently necessary, that courts should be erected, to assist him in executing this power; and equally necessary, that, if erected, they should be erected by his authority. and hence it is, that all jurisdictions of courts are either mediately or immediately derived from the crown, their proceedings run generally in the king's name, they pass under his seal, and are executed by his officers. [footnote y: _ad hoc autem creatus est et electus, ut justitiam faciat universis._ bract. _l._ . _tr._ . _c._ .] it is probable, and almost certain, that in very early times, before our constitution arrived at it's full perfection, our kings in person often heard and determined causes between party and party. but at present, by the long and uniform usage of many ages, our kings have delegated their whole judicial power to the judges of their several courts; which are the grand depositary of the fundamental laws of the kingdom, and have gained a known and stated jurisdiction, regulated by certain and established rules, which the crown itself cannot now alter but by act of parliament[z]. and, in order to maintain both the dignity and independence of the judges in the superior courts, it is enacted by the statute w. iii. c. . that their commissions shall be made (not, as formerly, _durante bene placito_, but) _quamdiu bene se gesserint_, and their salaries ascertained and established; but that it may be lawful to remove them on the address of both houses of parliament. and now, by the noble improvements of that law in the statute of geo. iii. c. . enacted at the earnest recommendation of the king himself from the throne, the judges are continued in their offices during their good behaviour, notwithstanding any demise of the crown (which was formerly held[a] immediately to vacate their seats) and their full salaries are absolutely secured to them during the continuance of their commissions: his majesty having been pleased to declare, that "he looked upon the independence and uprightness of the judges, as essential to the impartial administration of justice; as one of the best securities of the rights and liberties of his subjects; and as most conducive to the honour of the crown[b]." [footnote z: hawk. p.c. .] [footnote a: ld raym. .] [footnote b: com. journ. mar. .] in criminal proceedings, or prosecutions for offences, it would still be a higher absurdity, if the king personally sate in judgment; because in regard to these he appears in another capacity, that of _prosecutor_. all offences are either against the king's peace, or his crown and dignity; and are so laid in every indictment. for, though in their consequences they generally seem (except in the case of treason and a very few others) to be rather offences against the kingdom than the king; yet, as the public, which is an invisible body, has delegated all it's power and rights, with regard to the execution of the laws, to one visible magistrate, all affronts to that power, and breaches of those rights, are immediately offences against him, to whom they are so delegated by the public. he is therefore the proper person to prosecute for all public offences and breaches of the peace, being the person injured in the eye of the law. and this notion was carried so far in the old gothic constitution, (wherein the king was bound by his coronation oath to conserve the peace) that in case of any forcible injury offered to the person of a fellow subject, the offender was accused of a kind of perjury, in having violated the king's coronation oath; _dicebatur fregisse juramentum regis juratum_[c]. and hence also arises another branch of the prerogative, that of _pardoning_ offences; for it is reasonable that he only who is injured should have the power of forgiving. and therefore, in parliamentary impeachments, the king has no prerogative of pardoning: because there the commons of great britain are in their own names the prosecutors, and not the crown; the offence being for the most part avowedly taken to be done against the public. of prosecutions and pardons i shall treat more at large hereafter; and only mention them here, in this cursory manner, to shew the constitutional grounds of this power of the crown, and how regularly connected all the links are in this vast chain of prerogative. [footnote c: stiernh. _de jure goth._ _l._ . _c._ . a notion somewhat similar to this may be found in the mirrour. c. . §. .] in this distinct and separate existence of the judicial power, in a peculiar body of men, nominated indeed, but not removeable at pleasure, by the crown, consists one main preservative of the public liberty; which cannot subsist long in any state, unless the administration of common justice be in some degree separated both from the legislative and also from the executive power. were it joined with the legislative, the life, liberty, and property, of the subject would be in the hands of arbitrary judges, whose decisions would be then regulated only by their own opinions, and not by any fundamental principles of law; which, though legislators may depart from, yet judges are bound to observe. were it joined with the executive, this union might soon be an over-ballance for the legislative. for which reason, by the statute of car. i. c. . which abolished the court of star chamber, effectual care is taken to remove all judicial power out of the hands of the king's privy council; who, as then was evident from recent instances, might soon be inclined to pronounce that for law, which was most agreeable to the prince or his officers. nothing therefore is more to be avoided, in a free constitution, than uniting the provinces of a judge and a minister of state. and indeed, that the absolute power, claimed and exercised in a neighbouring nation, is more tolerable than that of the eastern empires, is in great measure owing to their having vested the judicial power in their parliaments, a body separate and distinct from both the legislative and executive: and, if ever that nation recovers it's former liberty, it will owe it to the efforts of those assemblies. in turkey, where every thing is centered in the sultan or his ministers, despotic power is in it's meridian, and wears a more dreadful aspect. a consequence of this prerogative is the legal _ubiquity_ of the king. his majesty, in the eye of the law, is always present in all his courts, though he cannot personally distribute justice[d]. his judges are the mirror by which the king's image is reflected. it is the regal office, and not the royal person, that is always present in court, always ready to undertake prosecutions, or pronounce judgment, for the benefit and protection of the subject. and from this ubiquity it follows, that the king can never be nonsuit[e]; for a nonsuit is the desertion of the suit or action by the non-appearance of the plaintiff in court. for the same reason also, in the forms of legal proceedings, the king is not said to appear _by his attorney_, as other men do; for he always appears in contemplation of law in his own proper person[f]. [footnote d: fortesc. c. . inst. .] [footnote e: co. litt. .] [footnote f: finch. l. .] from the same original, of the king's being the fountain of justice, we may also deduce the prerogative of issuing proclamations, which is vested in the king alone. these proclamations have then a binding force, when (as sir edward coke observes[g]) they are grounded upon and enforce the laws of the realm. for, though the making of laws is entirely the work of a distinct part, the legislative branch, of the sovereign power, yet the manner, time, and circumstances of putting those laws in execution must frequently be left to the discretion of the executive magistrate. and therefore his constitutions or edicts, concerning these points, which we call proclamations, are binding upon the subject, where they do not either contradict the old laws, or tend to establish new ones; but only enforce the execution of such laws as are already in being, in such manner as the king shall judge necessary. thus the established law is, that the king may prohibit any of his subjects from leaving the realm: a proclamation therefore forbidding this in general for three weeks, by laying an embargo upon all shipping in time of war[h], will be equally binding as an act of parliament, because founded upon a prior law. a proclamation for disarming papists is also binding, being only in execution of what the legislature has first ordained: but a proclamation for allowing arms to papists, or for disarming any protestant subjects, will not bind; because the first would be to assume a dispensing power, the latter a legislative one; to the vesting of either of which in any single person the laws of england are absolutely strangers. indeed by the statute hen. viii. c. . it was enacted, that the king's proclamations should have the force of acts of parliament: a statute, which was calculated to introduce the most despotic tyranny; and which must have proved fatal to the liberties of this kingdom, had it not been luckily repealed in the minority of his successor, about five years after[i]. [footnote g: inst. .] [footnote h: mod. , .] [footnote i: stat. edw. vi. c. .] iv. the king is likewise the fountain of honour, of office, and of privilege: and this in a different sense from that wherein he is stiled the fountain of justice; for here he is really the parent of them. it is impossible that government can be maintained without a due subordination of rank; that the people may know and distinguish such as are set over them, in order to yield them their due respect and obedience; and also that the officers themselves, being encouraged by emulation and the hopes of superiority, may the better discharge their functions: and the law supposes, that no one can be so good a judge of their several merits and services, as the king himself who employs them. it has therefore intrusted with him the sole power of conferring dignities and honours, in confidence that he will bestow them upon none, but such as deserve them. and therefore all degrees of nobility, of knighthood, and other titles, are received by immediate grant from the crown: either expressed in writing, by writs or letters patent, as in the creations of peers and baronets; or by corporeal investiture, as in the creation of a simple knight. from the same principle also arises the prerogative of erecting and disposing of offices: for honours and offices are in their nature convertible and synonymous. all offices under the crown carry in the eye of the law an honour along with them; because they imply a superiority of parts and abilities, being supposed to be always filled with those that are most able to execute them. and, on the other hand, all honours in their original had duties or offices annexed to them: an earl, _comes_, was the conservator or governor of a county; and a knight, _miles_, was bound to attend the king in his wars. for the same reason therefore that honours are in the disposal of the king, offices ought to be so likewise; and as the king may create new titles, so may he create new offices: but with this restriction, that he cannot create new offices with new fees annexed to them, nor annex new fees to old offices; for this would be a tax upon the subject, which cannot be imposed but by act of parliament[k]. wherefore, in hen. iv, a new office being created by the king's letters patent for measuring cloths, with a new fee for the same, the letters patent were, on account of the new fee, revoked and declared void in parliament. [footnote k: inst. .] upon the same, or a like reason, the king has also the prerogative of conferring privileges upon private persons. such as granting place or precedence to any of his subjects, as shall seem good to his royal wisdom[l]: or such as converting aliens, or persons born out of the king's dominions, into denizens; whereby some very considerable privileges of natural-born subjects are conferred upon them. such also is the prerogative of erecting corporations; whereby a number of private persons are united and knit together, and enjoy many liberties, powers, and immunities in their politic capacity, which they were utterly incapable of in their natural. of aliens, denizens, natural-born, and naturalized subjects, i shall speak more largely in a subsequent chapter; as also of corporations at the close of this book of our commentaries. i now only mention them incidentally, in order to remark the king's prerogative of making them; which is grounded upon this foundation, that the king, having the sole administration of the government in his hands, is the best and the only judge, in what capacities, with what privileges, and under what distinctions, his people are the best qualified to serve, and to act under him. a principle, which was carried so far by the imperial law, that it was determined to be the crime of sacrilege, even to doubt whether the prince had appointed proper officers in the state[m]. [footnote l: inst. .] [footnote m: _disputare de principali judicio non oportet: sacrilegii enim instar est, dubitare an is dignus sit; quem elegerit imperator._ _c._ . . .] v. another light in which the laws of england consider the king with regard to domestic concerns, is as the arbiter of commerce. by commerce, i at present mean domestic commerce only. it would lead me into too large a field, if i were to attempt, to enter upon the nature of foreign trade, it's privileges, regulations, and restrictions; and would be also quite beside the purpose of these commentaries, which are confined to the laws of england. whereas no municipal laws can be sufficient to order and determine the very extensive and complicated affairs of traffic and merchandize; neither can they have a proper authority for this purpose. for as these are transactions carried on between the subjects of independent states, the municipal laws of one will not be regarded by the other. for which reason the affairs of commerce are regulated by a law of their own, called the law merchant or _lex mercatoria_, which all nations agree in and take notice of. and in particular the law of england does in many cases refer itself to it, and leaves the causes of merchants to be tried by their own peculiar customs; and that often even in matters relating to inland trade, as for instance with regard to the drawing, the acceptance, and the transfer, of bills of exchange[n]. [footnote n: co. litt. . ld raym. . .] with us in england, the king's prerogative, so far as it relates to mere domestic commerce, will fall principally under the following articles: first, the establishment of public marts, or places of buying and selling, such as markets and fairs, with the tolls thereunto belonging. these can only be set up by virtue of the king's grant, or by long and immemorial usage and prescription, which presupposes such a grant[o]. the limitation of these public resorts, to such time and such place as may be most convenient for the neighbourhood, forms a part of oeconomics, or domestic polity; which, considering the kingdom as a large family, and the king as the master of it, he clearly has a right to dispose and order as he pleases. [footnote o: inst. .] secondly, the regulation of weights and measures. these, for the advantage of the public, ought to be universally the same throughout the kingdom; being the general criterions which reduce all things to the same or an equivalent value. but, as weight and measure are things in their nature arbitrary and uncertain, it is therefore expedient that they be reduced to some fixed rule or standard: which standard it is impossible to fix by any written law or oral proclamation; for no man can, by words only, give another an adequate idea of a foot-rule, or a pound-weight. it is therefore necessary to have recourse to some visible, palpable, material standard; by forming a comparison with which, all weights and measures may be reduced to one uniform size: and the prerogative of fixing this standard, our antient law vested in the crown; as in normandy it belonged to the duke[p]. this standard was originally kept at winchester: and we find in the laws of king edgar[q], near a century before the conquest, an injunction that the one measure, which was kept at winchester, should be observed throughout the realm. most nations have regulated the standard of measures of length by comparison with the parts of the human body; as the palm, the hand, the span, the foot, the cubit, the ell, (_ulna_, or arm) the pace, and the fathom. but, as these are of different dimensions in men of different proportions, our antient historians[r] inform us, that a new standard of longitudinal measure was ascertained by king henry the first; who commanded that the _ulna_ or antient ell, which answers to the modern yard, should be made of the exact length of his own arm. and, one standard of measures of length being gained, all others are easily derived from thence; those of greater length by multiplying, those of less by subdividing, that original standard. thus, by the statute called _compositio ulnarum et perticarum_, five yards and an half make a perch; and the yard is subdivided into three feet, and each foot into twelve inches; which inches will be each of the length of three grains of barley. superficial measures are derived by squaring those of length; and measures of capacity by cubing them. the standard of weights was originally taken from corns of wheat, whence the lowest denomination of weights we have is still called a grain; thirty two of which are directed, by the statute called _compositio mensurarum_, to compose a penny weight, whereof twenty make an ounce, twelve ounces a pound, and so upwards. and upon these principles the first standards were made; which, being originally so fixed by the crown, their subsequent regulations have been generally made by the king in parliament. thus, under king richard i, in his parliament holden at westminster, _a.d._ , it was ordained that there shall be only one weight and one measure throughout the kingdom, and that the custody of the assise or standard of weights and measures shall be committed to certain persons in every city and borough[s]; from whence the antient office of the king's aulnager seems to have been derived, whose duty it was, for a certain fee, to measure all cloths made for sale, till the office was abolished by the statute & w. iii. c. . in king john's time this ordinance of king richard was frequently dispensed with for money[t]; which occasioned a provision to be made for inforcing it, in the great charters of king john and his son[u]. these original standards were called _pondus regis_[w], and _mensura domini regis_[x]; and are directed by a variety of subsequent statutes to be kept in the exchequer, and all weights and measures to be made conformable thereto[y]. but, as sir edward coke observes[z], though this hath so often by authority of parliament been enacted, yet it could never be effected; so forcible is custom with the multitude, when it hath gotten an head. [footnote p: _gr. coustum._ _c._ .] [footnote q: _cap._ .] [footnote r: william of malmsb. _in vita hen. i._ spelm. _hen. i. ap._ wilkins. .] [footnote s: hoved. matth. paris.] [footnote t: hoved. _a.d._ .] [footnote u: hen. iii. c. .] [footnote w: _plac. edw. i. apud_ cowel's interpr. _tit. pondus regis._] [footnote x: _flet._ . .] [footnote y: edw. iii. st. . c. . edw. iii. st. . c. . ric. ii. c. . hen. vi. c. . hen. vi. c. . hen. vii. c. . car. ii. c. .] [footnote z: inst. .] thirdly, as money is the medium of commerce, it is the king's prerogative, as the arbiter of domestic commerce, to give it authority or make it current. money is an universal medium, or common standard, by comparison with which the value of all merchandize may be ascertained: or it is a sign, which represents the respective values of all commodities. metals are well calculated for this sign, because they are durable and are capable of many subdivisions: and a precious metal is still better calculated for this purpose, because it is the most portable. a metal is also the most proper for a common measure, because it can easily be reduced to the same standard in all nations: and every particular nation fixes on it it's own impression, that the weight and standard (wherein consists the intrinsic value) may both be known by inspection only. as the quantity of precious metals increases, that is, the more of them there is extracted from the mine, this universal medium or common sign will sink in value, and grow less precious. above a thousand millions of bullion are calculated to have been imported into europe from america within less than three centuries; and the quantity is daily increasing. the consequence is, that more money must be given now for the same commodity than was given an hundred years ago. and, if any accident was to diminish the quantity of gold and silver, their value would proportionably rise. a horse, that was formerly worth ten pounds, is now perhaps worth twenty; and, by any failure of current specie, the price may be reduced to what it was. yet is the horse in reality neither dearer nor cheaper at one time than another: for, if the metal which constitutes the coin was formerly twice as scarce as at present, the commodity was then as dear at half the price, as now it is at the whole. the coining of money is in all states the act of the sovereign power; for the reason just mentioned, that it's value may be known on inspection. and with respect to coinage in general, there are three things to be considered therein; the materials, the impression, and the denomination. with regard to the materials, sir edward coke lays it down[a], that the money of england must either be of gold or silver; and none other was ever issued by the royal authority till , when copper farthings and half-pence were coined by king charles the second, and ordered by proclamation to be current in all payments, under the value of six-pence, and not otherwise. but this copper coin is not upon the same footing with the other in many respects, particularly with regard to the offence of counterfeiting it. [footnote a: inst. .] as to the impression, the stamping thereof is the unquestionable prerogative of the crown: for, though divers bishops and monasteries had formerly the privilege of coining money, yet, as sir matthew hale observes[b], this was usually done by special grant from the king, or by prescription which supposes one; and therefore was derived from, and not in derogation of, the royal prerogative. besides that they had only the profit of the coinage, and not the power of instituting either the impression or denomination; but had usually the stamp sent them from the exchequer. [footnote b: hist. p.c. .] the denomination, or the value for which the coin is to pass current, is likewise in the breast of the king; and, if any unusual pieces are coined, that value must be ascertained by proclamation. in order to fix the value, the weight, and the fineness of the metal are to be taken into consideration together. when a given weight of gold or silver is of a given fineness, it is then of the true standard, and called sterling metal; a name for which there are various reasons given[c], but none of them entirely satisfactory. and of this sterling metal all the coin of the kingdom must be made by the statute edw. iii. c. . so that the king's prerogative seemeth not to extend to the debasing or inhancing the value of the coin, below or above the sterling value[d]: though sir matthew hale[e] appears to be of another opinion. the king may also, by his proclamation, legitimate foreign coin, and make it current here; declaring at what value it shall be taken in payments[f]. but this, i apprehend, ought to be by comparison with the standard of our own coin; otherwise the consent of parliament will be necessary. there is at present no such legitimated money; portugal coin being only current by private consent, so that any one who pleases may refuse to take it in payment. the king may also at any time decry, or cry down, any coin of the kingdom, and make it no longer current[g]. [footnote c: spelm. gloss. .] [footnote d: inst. .] [footnote e: h.p.c. .] [footnote f: _ibid._ .] [footnote g: _ibid._] vi. the king is, lastly, considered by the laws of england as the head and supreme governor of the national church. to enter into the reasons upon which this prerogative is founded is matter rather of divinity than of law. i shall therefore only observe that by statute hen. viii. c. . (reciting that the king's majesty justly and rightfully is and ought to be the supreme head of the church of england; and so had been recognized by the clergy of this kingdom in their convocation) it is enacted, that the king shall be reputed the only supreme head in earth of the church of england, and shall have, annexed to the imperial crown of this realm, as well the titles and stile thereof, as all jurisdictions, authorities, and commodities, to the said dignity of supreme head of the church appertaining. and another statute to the same purport was made, eliz. c. . in virtue of this authority the king convenes, prorogues, restrains, regulates, and dissolves all ecclesiastical synods or convocations. this was an inherent prerogative of the crown, long before the time of henry viii, as appears by the statute hen. vi. c. . and the many authors, both lawyers and historians, vouched by sir edward coke[h]. so that the statute hen. viii. c. . which restrains the convocation from making or putting in execution any canons repugnant to the king's prerogative, or the laws, customs, and statutes of the realm, was merely declaratory of the old common law: that part of it only being new, which makes the king's royal assent actually necessary to the validity of every canon. the convocation or ecclesiastical synod, in england, differs considerably in it's constitution from the synods of other christian kingdoms: those consisting wholly of bishops; whereas with us the convocation is the miniature of a parliament, wherein the archbishop presides with regal state; the upper house of bishops represents the house of lords; and the lower house, composed of representatives of the several dioceses at large, and of each particular chapter therein, resembles the house of commons with it's knights of the shire and burgesses[i]. this constitution is said to be owing to the policy of edward i; who thereby at one and the same time let in the inferior clergy to the privilege of forming ecclesiastical canons, (which before they had not) and also introduced a method of taxing ecclesiastical benefices, by consent of convocation[k]. [footnote h: inst. , .] [footnote i: in the diet of sweden, where the ecclesiastics form one of the branches of the legislature, the chamber of the clergy resembles the convocation of england. it is composed of the bishops and superintendants; and also of deputies, one of which is chosen by every ten parishes or rural deanry. mod. un. hist. xxxiii. .] [footnote k: gilb. hist. of exch. c. .] from this prerogative also of being the head of the church arises the king's right of nomination to vacant bishopricks, and certain other ecclesiastical preferments; which will better be considered when we come to treat of the clergy. i shall only here observe, that this is now done in consequence of the statute hen. viii. c. . as head of the church, the king is likewise the _dernier resort_ in all ecclesiastical causes; an appeal lying ultimately to him in chancery from the sentence of every ecclesiastical judge: which right was restored to the crown by statute hen. viii. c. . as will more fully be shewn hereafter. chapter the eighth. of the king's revenue. having, in the preceding chapter, considered at large those branches of the king's prerogative, which contribute to his royal dignity, and constitute the executive power of the government, we proceed now to examine the king's _fiscal_ prerogatives, or such as regard his _revenue_; which the british constitution hath vested in the royal person, in order to support his dignity and maintain his power: being a portion which each subject contributes of his property, in order to secure the remainder. this revenue is either ordinary, or extraordinary. the king's ordinary revenue is such, as has either subsisted time out of mind in the crown; or else has been granted by parliament, by way of purchase or exchange for such of the king's inherent hereditary revenues, as were found inconvenient to the subject. when i say that it has subsisted time out of mind in the crown, i do not mean that the king is at present in the actual possession of the whole of this revenue. much (nay, the greatest part) of it is at this day in the hands of subjects; to whom it has been granted out from time to time by the kings of england: which has rendered the crown in some measure dependent on the people for it's ordinary support and subsistence. so that i must be obliged to recount, as part of the royal revenue, what lords of manors and other subjects frequently look upon to be their own absolute rights, because they are and have been vested in them and their ancestors for ages, though in reality originally derived from the grants of our antient princes. i. the first of the king's ordinary revenues, which i shall take notice of, is of an ecclesiastical kind; (as are also the three succeeding ones) viz. the custody of the temporalties of bishops; by which are meant all the lay revenues, lands, and tenements (in which is included his barony) which belong to an archbishop's or bishop's see. and these upon the vacancy of the bishoprick are immediately the right of the king, as a consequence of his prerogative in church matters; whereby he is considered as the founder of all archbishopricks and bishopricks, to whom during the vacancy they revert. and for the same reason, before the dissolution of abbeys, the king had the custody of the temporalties of all such abbeys and priories as were of royal foundation (but not of those founded by subjects) on the death of the abbot or prior[a]. another reason may also be given, why the policy of the law hath vested this custody in the king; because, as the successor is not known, the lands and possessions of the see would be liable to spoil and devastation, if no one had a property therein. therefore the law has given the king, not the temporalties themselves, but the _custody_ of the temporalties, till such time as a successor is appointed; with power of taking to himself all the intermediate profits, without any account to the successor; and with the right of presenting (which the crown very frequently exercises) to such benefices and other preferments as fall within the time of vacation[b]. this revenue is of so high a nature, that it could not be granted out to a subject, before, or even after, it accrued: but now by the statute edw. iii. st. . c. & . the king may, after the vacancy, lease the temporalties to the dean and chapter; saving to himself all advowsons, escheats, and the like. our antient kings, and particularly william rufus, were not only remarkable for keeping the bishopricks a long time vacant, for the sake of enjoying the temporalties, but also committed horrible waste on the woods and other parts of the estate; and, to crown all, would never, when the see was filled up, restore to the bishop his temporalties again, unless he purchased them at an exorbitant price. to remedy which, king henry the first[c] granted a charter at the beginning of his reign, promising neither to sell, nor let to farm, nor take any thing from, the domains of the church, till the successor was installed. and it was made one of the articles of the great charter[d], that no waste should be committed in the temporalties of bishopricks, neither should the custody of them be sold. the same is ordained by the statute of westminster the first[e]; and the statute edw. iii. st. . c. . (which permits, as we have seen, a lease to the dean and chapter) is still more explicit in prohibiting the other exactions. it was also a frequent abuse, that the king would for trifling, or no causes, seise the temporalties of bishops, even during their lives, into his own hands: but this is guarded against by statute edw. iii. st. . c. . [footnote a: inst. .] [footnote b: stat. edw. ii. c. . f.n.b. .] [footnote c: matth. paris.] [footnote d: hen. iii. c. .] [footnote e: edw. i. c. .] this revenue of the king, which was formerly very considerable, is now by a customary indulgence almost reduced to nothing: for, at present, as soon as the new bishop is consecrated and confirmed, he usually receives the restitution of his temporalties quite entire, and untouched, from the king; and then, and not sooner, he has a fee simple in his bishoprick, and may maintain an action for the same[f]. [footnote f: co. litt. . .] ii. the king is entitled to a corody, as the law calls it, out of every bishoprick: that is, to send one of his chaplains to be maintained by the bishop, or to have a pension allowed him till the bishop promotes him to a benefice[g]. this is also in the nature of an acknowlegement to the king, as founder of the see; since he had formerly the same corody or pension from every abbey or priory of royal foundation. it is, i apprehend, now fallen into total disuse; though sir matthew hale says[h], that it is due of common right, and that no prescription will discharge it. [footnote g: f.n.b. .] [footnote h: notes on f.n.b. above cited.] iii. the king also (as was formerly observed[i]) is entitled to all the tithes arising in extraparochial places[k]: though perhaps it may be doubted how far this article, as well as the last, can be properly reckoned a part of the king's own royal revenue; since a corody supports only his chaplains, and these extraparochial tithes are held under an implied trust, that the king will distribute them for the good of the clergy in general. [footnote i: page .] [footnote k: inst. .] iv. the next branch consists in the first-fruits, and tenths, of all spiritual preferments in the kingdom; both of which i shall consider together. these were originally a part of the papal usurpations over the clergy of this kingdom; first introduced by pandulph the pope's legate, during the reigns of king john and henry the third, in the see of norwich; and afterwards attempted to be made universal by the popes clement v and john xxii, about the beginning of the fourteenth century. the first-fruits, _primitiae_, or _annates_, were the first year's whole profits of the spiritual preferment, according to a rate or _valor_ made under the direction of pope innocent iv by walter bishop of norwich in hen. iii, and afterwards advanced in value by commission from pope nicholas the third, _a.d._ , edw. i[l]; which valuation of pope nicholas is still preserved in the exchequer[m]. the tenths, or _decimae_, were the tenth part of the annual profit of each living by the same valuation; which was also claimed by the holy see, under no better pretence than a strange misapplication of that precept of the levitical law, which directs[n], "that the levites should offer the tenth part of their tithe as a heave-offering to the lord, and give it to aaron the _high_ priest." but this claim of the pope met with vigorous resistance from the english parliament; and a variety of acts were passed to prevent and restrain it, particularly the statute hen. iv. c. . which calls it a horrible mischief and damnable custom. but the popish clergy, blindly devoted to the will of a foreign master, still kept it on foot; sometimes more secretly, sometimes more openly and avowedly: so that, in the reign of henry viii, it was computed, that in the compass of fifty years ducats had been sent to rome for first-fruits only. and, as the clergy expressed this willingness to contribute so much of their income to the head of the church, it was thought proper (when in the same reign the papal power was abolished, and the king was declared the head of the church of england) to annex this revenue to the crown; which was done by statute hen. viii. c. . (confirmed by statute eliz. c. .) and a new _valor beneficiorum_ was then made, by which the clergy are at present rated. [footnote l: f.n.b. .] [footnote m: inst. .] [footnote n: numb. . .] by these lastmentioned statutes all vicarages under ten pounds a year, and all rectories under ten marks, are discharged from the payment of first-fruits: and if, in such livings as continue chargeable with this payment, the incumbent lives but half a year, he shall pay only one quarter of his first-fruits; if but one whole year, then half of them; if a year and half, three quarters; and if two years, then the whole; and not otherwise. likewise by the statute hen. viii. c. . no tenths are to be paid for the first year, for then the first-fruits are due: and by other statutes of queen anne, in the fifth and sixth years of her reign, if a benefice be under fifty pounds _per annum_ clear yearly value, it shall be discharged of the payment of first-fruits and tenths. thus the richer clergy, being, by the criminal bigotry of their popish predecessors, subjected at first to a foreign exaction, were afterwards, when that yoke was shaken off, liable to a like misapplication of their revenues, through the rapacious disposition of the then reigning monarch: till at length the piety of queen anne restored to the church what had been thus indirectly taken from it. this she did, not by remitting the tenths and first-fruits entirely; but, in a spirit of the truest equity, by applying these superfluities of the larger benefices to make up the deficiences of the smaller. and to this end she granted her royal charter, which was confirmed by the statute ann. c. . whereby all the revenue of first-fruits and tenths is vested in trustees for ever, to form a perpetual fund for the augmentation of poor livings. this is usually called queen anne's bounty; which has been still farther regulated by subsequent statutes, too numerous here to recite. v. the next branch of the king's ordinary revenue (which, as well as the subsequent branches, is of a lay or temporal nature) consists in the rents and profits of the demesne lands of the crown. these demesne lands, _terrae dominicales regis_, being either the share reserved to the crown at the original distribution of landed property, or such as came to it afterwards by forfeitures or other means, were antiently very large and extensive; comprizing divers manors, honors, and lordships; the tenants of which had very peculiar privileges, as will be shewn in the second book of these commentaries, when we speak of the tenure in antient demesne. at present they are contracted within a very narrow compass, having been almost entirely granted away to private subjects. this has occasioned the parliament frequently to interpose; and, particularly, after king william iii had greatly impoverished the crown, an act passed[o], whereby all future grants or leases from the crown for any longer term than thirty one years or three lives are declared to be void; except with regard to houses, which may be granted for fifty years. and no reversionary lease can be made, so as to exceed, together with the estate in being, the same term of three lives or thirty one years: that is, where there is a subsisting lease, of which there are twenty years still to come, the king cannot grant a future interest, to commence after the expiration of the former, for any longer term than eleven years. the tenant must also be made liable to be punished for committing waste; and the usual rent must be reserved, or, where there has usually been no rent, one third of the clear yearly value[p]. the misfortune is, that this act was made too late, after almost every valuable possession of the crown had been granted away for ever, or else upon very long leases; but may be of benefit to posterity, when those leases come to expire. [footnote o: ann. st. . c. .] [footnote p: in like manner, by the civil law, the inheritances or _fundi patrimoniales_ of the imperial crown could not be alienated, but only let to farm. _cod._ _l._ . _t._ .] vi. hither might have been referred the advantages which were used to arise to the king from the profits of his military tenures, to which most lands in the kingdom were subject, till the statute car. ii. c. . which in great measure abolished them all: the explication of the nature of which tenures, must be referred to the second book of these commentaries. hither also might have been referred the profitable prerogative of purveyance and pre-emption: which was a right enjoyed by the crown of buying up provisions and other necessaries, by the intervention of the king's purveyors, for the use of his royal houshold, at an appraised valuation, in preference to all others, and even without consent of the owner; and also of forcibly impressing the carriages and horses of the subject, to do the king's business on the publick roads, in the conveyance of timber, baggage, and the like, however inconvenient to the proprietor, upon paying him a settled price. a prerogative, which prevailed pretty generally throughout europe, during the scarcity of gold and silver, and the high valuation of money consequential thereupon. in those early times the king's houshold (as well as those of inferior lords) were supported by specific renders of corn, and other victuals, from the tenants of the respective demesnes; and there was also a continual market kept at the palace gate to furnish viands for the royal use[q]. and this answered all purposes, in those ages of simplicity, so long as the king's court continued in any certain place. but when it removed from one part of the kingdom to another (as was formerly very frequently done) it was found necessary to send purveyors beforehand, to get together a sufficient quantity of provisions and other necessaries for the houshold: and, lest the unusual demand should raise them to an exorbitant price, the powers beforementioned were vested in these purveyors; who in process of time very greatly abused their authority, and became a great oppression to the subject though of little advantage to the crown; ready money in open market (when the royal residence was more permanent, and specie began to be plenty) being found upon experience to be the best proveditor of any. wherefore by degrees the powers of purveyance have declined, in foreign countries as well as our own; and particularly were abolished in sweden by gustavus adolphus, toward the beginning of the last century[r]. and, with us in england, having fallen into disuse during the suspension of monarchy, king charles at his restoration consented, by the same statute, to resign intirely these branches of his revenue and power, for the ease and convenience of his subjects: and the parliament, in part of recompense, settled on him, his heirs, and successors, for ever, the hereditary excise of fifteen pence _per_ barrel on all beer and ale sold in the kingdom, and a proportionable sum for certain other liquors. so that this hereditary excise, the nature of which shall be farther explained in the subsequent part of this chapter, now forms the sixth branch of his majesty's ordinary revenue. [footnote q: inst. .] [footnote r: mod. un. hist. xxxiii. .] vii. a seventh branch might also be computed to have arisen from wine licences; or the rents payable to the crown by such persons as are licensed to sell wine by retale throughout england, except in a few privileged places. these were first settled on the crown by the statute car. ii. c. . and, together with the hereditary excise, made up the equivalent in value for the loss sustained by the prerogative in the abolition of the military tenures, and the right of pre-emption and purveyance: but this revenue was abolished by the statute geo. ii. c. . and an annual sum of upwards of £ _per annum_, issuing out of the new stamp duties imposed on wine licences, was settled on the crown in it's stead. viii. an eighth branch of the king's ordinary revenue is usually reckoned to consist in the profits arising from his forests. forests are waste grounds belonging to the king, replenished with all manner of beasts of chase or venary; which are under the king's protection, for the sake of his royal recreation and delight: and, to that end, and for preservation of the king's game, there are particular laws, privileges, courts and officers belonging to the king's forests; all which will be, in their turns, explained in the subsequent books of these commentaries. what we are now to consider are only the profits arising to the king from hence; which consist principally in amercements or fines levied for offences against the forest-laws. but as few, if any courts of this kind for levying amercements have been held since , car. i. and as, from the accounts given of the proceedings in that court by our histories and law books[s], nobody would now wish to see them again revived, it is needless (at least in this place) to pursue this enquiry any farther. [footnote s: jones. - .] ix. the profits arising from the king's ordinary courts of justice make a ninth branch of his revenue. and these consist not only in fines imposed upon offenders, forfeitures of recognizances, and amercements levied upon defaulters; but also in certain fees due to the crown in a variety of legal matters, as, for setting the great seal to charters, original writs, and other legal proceedings, and for permitting fines to be levied of lands in order to bar entails, or otherwise to insure their title. as none of these can be done without the immediate intervention of the king, by himself or his officers, the law allows him certain perquisites and profits, as a recompense for the trouble he undertakes for the public. these, in process of time, have been almost all granted out to private persons, or else appropriated to certain particular uses: so that, though our law-proceedings are still loaded with their payment, very little of them is now returned into the king's exchequer; for a part of whose royal maintenance they were originally intended. all future grants of them however, by the statute ann. st. . c. . are to endure for no longer time than the prince's life who grants them. x. a tenth branch of the king's ordinary revenue, said to be grounded on the consideration of his guarding and protecting the seas from pirates and robbers, is the right to _royal fish_, which are whale and sturgeon: and these, when either thrown ashore, or caught near the coasts, are the property of the king, on account[t] of their superior excellence. indeed our ancestors seem to have entertained a very high notion of the importance of this right; it being the prerogative of the kings of denmark and the dukes of normandy[u]; and from one of these it was probably derived to our princes. it is expressly claimed and allowed in the statute _de praerogativa regis_[w]: and the most antient treatises of law now extant make mention of it[x]; though they seem to have made a distinction between whale and sturgeon, as was incidentally observed in a former chapter[y]. [footnote t: plowd. .] [footnote u: stiernh. _de jure sueonum._ _l._ . _c._ . _gr. coustum._ _cap._ .] [footnote w: edw. ii. c. .] [footnote x: bracton. _l._ . _c._ . britton. _c._ . fleta. _l._ . _c._ & .] [footnote y: ch. . pag. .] xi. another maritime revenue, and founded partly upon the same reason, is that of shipwrecks; which are also declared to be the king's property by the same prerogative statute edw. ii. c. . and were so, long before, at the common law. it is worthy observation, how greatly the law of wrecks has been altered, and the rigour of it gradually softened, in favour of the distressed proprietors. wreck, by the antient common law, was where any ship was lost at sea, and the goods or cargo were thrown upon the land; in which case these goods, so wrecked, were adjudged to belong to the king: for it was held, that, by the loss of the ship, all property was gone out of the original owner[z]. but this was undoubtedly adding sorrow to sorrow, and was consonant neither to reason nor humanity. wherefore it was first ordained by king henry i, that if any person escaped alive out of the ship it should be no wreck[a]; and afterwards king henry ii, by his charter[b], declared, that if on the coasts of either england, poictou, oleron, or gascony, any ship should be distressed, and either man or beast should escape or be found therein alive, the goods should remain to the owners, if they claimed them within three months; but otherwise should be esteemed a wreck, and should belong to the king, or other lord of the franchise. this was again confirmed with improvements by king richard the first, who, in the second year of his reign[c], not only established these concessions, by ordaining that the owner, if he was shipwrecked and escaped, "_omnes res suas liberas et quietas haberet_," but also, that, if he perished, his children, or in default of them his brethren and sisters, should retain the property; and, in default of brother or sister, then the goods should remain to the king[d]. and the law, so long after as the reign of henry iii, seems still to have been guided by the same equitable provisions. for then if a dog (for instance) escaped, by which the owner might be discovered, or if any certain mark were set on the goods, by which they might be known again, it was held to be no wreck[e]. and this is certainly most agreeable to reason; the rational claim of the king being only founded upon this, that the true owner cannot be ascertained. but afterwards, in the statute of westminster the first[f], the law is laid down more agreeable to the charter of king henry the second: and upon that statute hath stood the legal doctrine of wrecks to the present time. it enacts, that if any live thing escape (a man, a cat, or a dog; which, as in bracton, are only put for examples[g],) in this case, and, as it seems, in this case only, it is clearly not a legal wreck: but the sheriff of the county is bound to keep the goods a year and a day (as in france for one year, agreeably to the maritime laws of oleron[h], and in holland for a year and an half) that if any man can prove a property in them, either in his own right or by right of representation[i], they shall be restored to him without delay; but, if no such property be proved within that time, they then shall be the king's. if the goods are of a perishable nature, the sheriff may sell them, and the money shall be liable in their stead[k]. this revenue of wrecks is frequently granted out to lords of manors, as a royal franchise; and if any one be thus entitled to wrecks in his own land, and the king's goods are wrecked thereon, the king may claim them at any time, even after the year and day[l]. [footnote z: dr & st. d. . c. .] [footnote a: spelm. _cod. apud_ wilkins. .] [footnote b: may, _a.d._ . rym. _foed._ .] [footnote c: rog. hoved. _in ric. i_.] [footnote d: in like manner constantine the great, finding that by the imperial law the revenue of wrecks was given to the prince's treasury or _fiscus_, restrained it by an edict (_cod._ . . .) and ordered them to remain to the owners; adding this humane expostulation, "_quod enim jus habet fiscus in aliena calamitate, ut de re tam luctuosa compendium sectetur?_"] [footnote e: bract. _l._ . _c._ .] [footnote f: edw. i. c. .] [footnote g: flet. . _c._ . inst. .] [footnote h: §. .] [footnote i: inst. .] [footnote k: plowd. .] [footnote l: inst. . bro. abr. _tit. wreck_.] it is to be observed, that in order to constitute a legal _wreck_, the goods must come to land. if they continue at sea, the law distinguishes them by the barbarous and uncouth appellations of _jetsam_, _flotsam_, and _ligan_. jetsam is where goods are cast into the sea, and there sink and remain under water: flotsam is where they continue swimming on the surface of the waves: ligan is where they are sunk in the sea, but tied to a cork or buoy, in order to be found again[m]. these are also the king's, if no owner appears to claim them; but, if any owner appears, he is entitled to recover the possession. for even if they be cast overboard, without any mark or buoy, in order to lighten the ship, the owner is not by this act of necessity construed to have renounced his property[n]: much less can things ligan be supposed to be abandoned, since the owner has done all in his power, to assert and retain his property. these three are therefore accounted so far a distinct thing from the former, that by the king's grant to a man of wrecks, things jetsam, flotsam, and ligan will not pass[o]. [footnote m: rep. .] [footnote n: _quae enim res in tempestate, levandae navis causa, ejiciuntur, hac dominorum permanent. quia palam est, eas non eo animo ejici, quod quis habere nolit._ _inst._ . . §. .] [footnote o: rep. .] wrecks, in their legal acceptation, are at present not very frequent: it rarely happening that every living creature on board perishes; and if any should survive, it is a very great chance, since the improvement of commerce, navigation, and correspondence, but the owner will be able to assert his property within the year and day limited by law. and in order to preserve this property entire for him, and if possible to prevent wrecks at all, our laws have made many very humane regulations; in a spirit quite opposite to those savage laws, which formerly prevailed in all the northern regions of europe, and a few years ago were still laid to subsist on the coasts of the baltic sea, permitting the inhabitants to seize on whatever they could get as lawful prize; or, as an author of their own expresses it, "_in naufragorum miseria et calamitate tanquam vultures ad praedam currere_[p]." for by the statute edw. iii. c. . if any ship be lost on the shore, and the goods come to land (so as it be not legal wreck) they shall be presently delivered to the merchants, they paying only a reasonable reward to those that saved and preserved them, which is intitled _salvage_. also by the common law, if any persons (other than the sheriff) take any goods so cast on shore, which are not legal wreck, the owners might have a commission to enquire and find them out, and compel them to make restitution[q]. and by statute ann. st. . c. . confirmed by geo. i. c. . in order to assist the distressed, and prevent the scandalous illegal practices on some of our sea coasts, (too similar to those on the baltic) it is enacted, that all head-officers and others of towns near the sea shall, upon application made to them, summon as many hands as are necessary, and send them to the relief of any ship in distress, on forfeiture of _l._ and, in case of assistance given, salvage shall be paid by the owners, to be assessed by three neighbouring justices. all persons that secrete any goods shall forfeit their treble value: and if they wilfully do any act whereby the ship is lost or destroyed, by making holes in her, stealing her pumps, or otherwise, they are guilty of felony, without benefit of clergy. lastly, by the statute geo. ii. c. . plundering any vessel either in distress, or wrecked, and whether any living creature be on board or not, (for, whether wreck or otherwise, it is clearly not the property of the populace) such plundering, i say, or preventing the escape of any person that endeavors to save his life, or wounding him with intent to destroy him, or putting out false lights in order to bring any vessel into danger, are all declared to be capital felonies; in like manner as the destroying trees, steeples, or other stated seamarks, is punished by the statute eliz. c. . with a forfeiture of _l._ moreover, by the statute of george ii, pilfering any goods cast ashore is declared to be petty larceny; and many other salutary regulations are made, for the more effectually preserving ships of any nation in distress[r]. [footnote p: stiernh. _de jure sueon._ _l._ . _c._ .] [footnote q: f.n.b. .] [footnote r: by the civil law, to destroy persons shipwrecked, or prevent their saving the ship, is capital. and to steal even a plank from a vessel in distress, or wrecked, makes the party liable to answer for the whole ship and cargo. (_ff._ . . .) the laws also of the wisigoths, and the most early neapolitan constitutions, punished with the utmost severity all those who neglected to assist any ship in distress, or plundered any goods cast on shore. (lindenbrog. _cod. ll. antiq._ . .)] xii. a twelfth branch of the royal revenue, the right to mines, has it's original from the king's prerogative of coinage, in order to supply him with materials: and therefore those mines, which are properly royal, and to which the king is entitled when found, are only those of silver and gold[s]. by the old common law, if gold or silver be found in mines of base metal, according to the opinion of some the whole was a royal mine, and belonged to the king; though others held that it only did so, if the quantity of gold or silver was of greater value than the quantity of base metal[t]. but now by the statutes w. & m. st. . c. . and w. & m. c. . this difference is made immaterial; it being enacted, that no mines of copper, tin, iron, or lead, shall be looked upon as royal mines, notwithstanding gold or silver may be extracted from them in any quantities: but that the king, or persons claiming royal mines under his authority, may have the ore, (other than tin-ore in the counties of devon and cornwall) paying for the same a price stated in the act. this was an extremely reasonable law: for now private owners are not discouraged from working mines, through a fear that they may be claimed as royal ones; neither does the king depart from the just rights of his revenue, since he may have all the precious metal contained in the ore, paying no more for it than the value of the base metal which it is supposed to be; to which base metal the land-owner is by reason and law entitled. [footnote s: inst. .] [footnote t: plowd. .] xiii. to the same original may in part be referred the revenue of treasure-trove (derived from the french word, _trover_, to find) called in latin _thesaurus inventus_, which is where any money or coin, gold, silver, plate, or bullion, is found hidden _in_ the earth, or other private place, the owner thereof being unknown; in which case the treasure belongs to the king: but if he that hid it be known, or afterwards found out, the owner and not the king is entitled to it[u]. also if it be found in the sea, or _upon_ the earth, it doth not belong to the king, but the finder, if no owner appears[w]. so that it seems it is the _hiding_, not the _abandoning_ of it, that gives the king a property: bracton[x] defining it, in the words of the civilians, to be "_vetus depositio pecuniae_." this difference clearly arises from the different intentions, which the law implies in the owner. a man, that hides his treasure in a secret place, evidently does not mean to relinquish his property; but reserves a right of claiming it again, when he sees occasion; and, if he dies and the secret also dies with him, the law gives it the king, in part of his royal revenue. but a man that scatters his treasure into the sea, or upon the public surface of the earth, is construed to have absolutely abandoned his property, and returned it into the common stock, without any intention of reclaiming it; and therefore it belongs, as in a state of nature, to the first occupant, or finder; unless the owner appear and assert his right, which then proves that the loss was by accident, and not with an intent to renounce his property. [footnote u: inst. . dalt. sheriffs. c. .] [footnote w: britt. c. . finch. l. .] [footnote x: _l._ . _c._ . §. .] formerly all treasure-trove belonged to the finder[y]; as was also the rule of the civil law[z]. afterwards it was judged expedient for the purposes of the state, and particularly for the coinage, to allow part of what was so found to the king; which part was assigned to be all _hidden_ treasure; such as is _casually lost_ and unclaimed, and also such as is _designedly abandoned_, still remaining the right of the fortunate finder. and that the prince shall be entitled to this hidden treasure is now grown to be, according to grotius[a], "_jus commune, et quasi gentium_:" for it is not only observed, he adds, in england, but in germany, france, spain, and denmark. the finding of deposited treasure was much more frequent, and the treasures themselves more considerable, in the infancy of our constitution than at present. when the romans, and other inhabitants of the respective countries which composed their empire, were driven out by the northern nations, they concealed their money under-ground; with a view of resorting to it again when the heat of the irruption should be over, and the invaders driven back to their desarts. but as this never happened, the treasures were never claimed; and on the death of the owners the secret also died along with them. the conquering generals, being aware of the value of these hidden mines, made it highly penal to secrete them from the public service. in england therefore, as among the feudists[b], the punishment of such as concealed from the king the finding of hidden treasure was formerly no less than death; but now it is only fine and imprisonment[c]. [footnote y: bracton. _l._ . _c._ . inst. .] [footnote z: _ff._ . . .] [footnote a: _de jur. b. & p._ _l._ . _c._ . §. .] [footnote b: glanv. _l._ . _c._ . crag. . . .] [footnote c: inst. .] xiv. waifs, _bona waviata_, are goods stolen, and waived or thrown away by the thief in his flight, for fear of being apprehended. these are given to the king by the law, as a punishment upon the owner, for not himself pursuing the felon, and taking away his goods from him[d]. and therefore if the party robbed do his diligence immediately to follow and apprehend the thief (which is called making fresh _suit_) or do convict him afterwards, or procure evidence to convict him, he shall have his goods again[e]. waived goods do also not belong to the king, till seised by somebody for his use; for if the party robbed can seise them first, though at the distance of twenty years, the king shall never have them[f]. if the goods are hid by the thief, or left any where by him, so that he had them not about him when he fled, and therefore did not throw them away in his flight; these also are not _bona waviata_, but the owner may have them again when he pleases[g]. the goods of a foreign merchant, though stolen and thrown away in flight, shall never be waifs[h]: the reason whereof may be, not only for the encouragement of trade, but also because there is no wilful default in the foreign merchant's not pursuing the thief, he being generally a stranger to our laws, our usages, and our language. [footnote d: cro. eliz. .] [footnote e: finch. l. .] [footnote f: _ibid._] [footnote g: rep. .] [footnote h: fitzh. _abr. tit. estray._ . bulstr. .] xv. estrays are such valuable animals as are found wandering in any manor or lordship, and no man knoweth the owner of them; in which case the law gives them to the king as the general owner and lord paramount of the soil, in recompence for the damage which they may have done therein; and they now most commonly belong to the lord of the manor, by special grant from the crown. but in order to vest an absolute property in the king or his grantees, they must be proclaimed in the church and two market towns next adjoining to the place where they are found; and then, if no man claims them, after proclamation and a year and a day passed, they belong to the king or his substitute without redemption[i]; even though the owner were a minor, or under any other legal incapacity[k]. a provision similar to which obtained in the old gothic constitution, with regard to all things that were found, which were to be thrice proclaimed, _primum coram comitibus et viatoribus obviis, deinde in proxima villa vel pago, postremo coram ecclesia vel judicio_: and the space of a year was allowed for the owner to reclaim his property[l]. if the owner claims them within the year and day, he must pay the charges of finding, keeping, and proclaiming them[m]. the king or lord has no property till the year and day passed: for if a lord keepeth an estray three quarters of a year, and within the year it strayeth again, and another lord getteth it, the first lord cannot take it again[n]. any beast may be an estray, that is by nature tame or reclaimable, and in which there is a valuable property, as sheep, oxen, swine, and horses, which we in general call cattle; and so fleta[o] defines it, _pecus vagans, quod nullus petit, sequitur, vel advocat_. for animals upon which the law sets no value, as a dog or cat, and animals _ferae naturae_, as a bear or wolf, cannot be considered as estrays. so swans may be estrays, but not any other fowl[p]; whence they are said to be royal fowl. the reason of which distinction seems to be, that, cattle and swans being of a reclaimed nature, the owner's property in them is not lost merely by their temporary escape; and they also, from their intrinsic value, are a sufficient pledge for the expense of the lord of the franchise in keeping them the year and day. for he that takes an estray is bound, so long as he keeps it, to find it in provisions and keep it from damage[q]; and may not use it by way of labour, but is liable to an action for so doing[r]. yet he may milk a cow, or the like, for that tends to the preservation, and is for the benefit, of the animal[s]. [footnote i: mirr. c. . §. .] [footnote k: rep. . bro. _abr. tit. estray._ cro. eliz. .] [footnote l: stiernh. _de jur. gothor._ _l._ . _c._ .] [footnote m: dalt. sh. .] [footnote n: finch. l. .] [footnote o: _l._ . _c._ .] [footnote p: rep. .] [footnote q: roll. abr. .] [footnote r: cro. jac. .] [footnote s: cro. jac. . noy. .] besides the particular reasons before given why the king should have the several revenues of royal fish, shipwrecks, treasure-trove, waifs, and estrays, there is also one general reason which holds for them all; and that is, because they are _bona vacantia_, or goods in which no one else can claim a property. and therefore by the law of nature they belonged to the first occupant or finder; and so continued under the imperial law. but, in settling the modern constitutions of most of the governments in europe, it was thought proper (to prevent that strife and contention, which the mere title of occupancy is apt to create and continue, and to provide for the support of public authority in a manner the least burthensome to individuals) that these rights should be annexed to the supreme power by the positive laws of the state. and so it came to pass that, as bracton expresses it[t], _haec, quae nullius in bonis sunt, et olim fuerunt inventoris de jure naturali, jam efficiuntur principis de jure gentium_. [footnote t: _l._ . _c._ .] xvi. the next branch of the king's ordinary revenue consists in forfeitures of lands and goods for offences; _bona confiscata_, as they are called by the civilians, because they belonged to the _fiscus_ or imperial treasury; or, as our lawyers term them, _forisfacta_, that is, such whereof the property is gone away or departed from the owner. the true reason and only substantial ground of any forfeiture for crimes consist in this; that all property is derived from society, being one of those civil rights which are conferred upon individuals, in exchange for that degree of natural freedom, which every man must sacrifice when he enters into social communities. if therefore a member of any national community violates the fundamental contract of his association, by transgressing the municipal law, he forfeits his right to such privileges as he claims by that contract; and the state may very justly resume that portion of property, or any part of it, which the laws have before assigned him. hence, in every offence of an atrocious kind, the laws of england have exacted a total confiscation of the moveables or personal estate; and in many cases a perpetual, in others only a temporary, loss of the offender's immoveables or landed property; and have vested them both in the king, who is the person supposed to be offended, being the one visible magistrate in whom the majesty of the public resides. the particulars of these forfeitures will be more properly recited when we treat of crimes and misdemesnors. i therefore only mention them here, for the sake of regularity, as a part of the _census regalis_; and shall postpone for the present the farther consideration of all forfeitures, excepting one species only, which arises from the misfortune rather than the crime of the owner, and is called a _deodand_. by this is meant whatever personal chattel is the immediate occasion of the death of any reasonable creature; which is forfeited to the king, to be applied to pious uses, and distributed in alms by his high almoner[u]; though formerly destined to a more superstitious purpose. it seems to have been originally designed, in the blind days of popery, as an expiation for the souls of such as were snatched away by sudden death; and for that purpose ought properly to have been given to holy church[w]; in the same manner, as the apparel of a stranger who was found dead was applied to purchase masses for the good of his soul. and this may account for that rule of law, that no deodand is due where an infant under the years of discretion is killed by a fall _from_ a cart, or horse, or the like, not being in motion[x]; whereas, if an adult person falls from thence and is killed, the thing is certainly forfeited. for the reason given by sir matthew hale seems to be very inadequate, _viz._ because an infant is not able to take care of himself: for why should the owner save his forfeiture, on account of the imbecillity of the child, which ought rather to have made him more cautious to prevent any accident of mischief? the true ground of this rule seems rather to be, that the child, by reason of it's want of discretion, is presumed incapable of actual sin, and therefore needed no deodand to purchase propitiatory masses: but every adult, who dies in actual sin, stood in need of such atonement, according to the humane superstition of the founders of the english law. [footnote u: hal. p.c. . fleta. _l._ . _c._ .] [footnote w: fitzh. _abr. tit. enditement._ _pl._ . staunf. p.c. , .] [footnote x: inst. . hal. p.c. .] thus stands the law, if a person be killed by a fall from a thing standing still. but if a horse, or ox, or other animal, of his own motion, kill as well an infant as an adult, or if a cart run over him, they shall in either case be forfeited as deodands[y]; which is grounded upon this additional reason, that such misfortunes are in part owing to the negligence of the owner, and therefore he is properly punished by such forfeiture. a like punishment is in like cases inflicted by the mosaical law[z]: "if an ox gore a man that he die, the ox shall be stoned, and his flesh shall not be eaten." and among the athenians[a], whatever was the cause of a man's death, by falling upon him, was exterminated or cast out of the dominions of the republic. where a thing, not in motion, is the occasion of a man's death, that part only which is the immediate cause is forfeited; as if a man be climbing up a wheel, and is killed by falling from it, the wheel alone is a deodand[b]: but, wherever the thing is in motion, not only that part which immediately gives the wound, (as the wheel, which runs over his body) but all things which move with it and help to make the wound more dangerous (as the cart and loading, which increase the pressure of the wheel) are forfeited[c]. it matters not whether the owner were concerned in the killing or not; for if a man kills another with my sword, the sword is forfeited[d] as an accursed thing[e]. and therefore, in all indictments for homicide, the instrument of death and the value are presented and found by the grand jury (as, that the stroke was given with a certain penknife, value sixpence) that the king or his grantee may claim the deodand: for it is no deodand, unless it be presented as such by a jury of twelve men[f]. no deodands are due for accidents happening upon the high sea, that being out of the jurisdiction of the common law: but if a man falls from a boat or ship in fresh water, and is drowned, the vessel and cargo are in strictness a deodand[g]. [footnote y: _omnia, quae movent ad mortem, sunt deo danda._ bracton. _l._ . _c._ .] [footnote z: exod. . .] [footnote a: aeschin. _contr. ctesiph._] [footnote b: hal. p.c. .] [footnote c: hawk. p.c. c. .] [footnote d: a similar rule obtained among the antient goths. _si quis, me nesciente, quocunque meo telo vel instrumento in perniciem suam abutatur; vel ex aedibus meis cadat, vel incidat in puteum meum, quantumvis tectum et munitum, vel in cataractam, et sub molendino meo confringatur, ipse aliqua mulcta plectar; ut in parte infelicitatis meae numeretur, habuisse vel aedificasse aliquod quo homo periret._ stiernhook _de jure goth._ _l._ . _c._ .] [footnote e: dr & st. d. . c. .] [footnote f: inst. .] [footnote g: inst. . hal. p.c. . molloy _de jur. maritim._ . .] deodands, and forfeitures in general, as well as wrecks, treasure trove, royal fish, mines, waifs, and estrays, may be granted by the king to particular subjects, as a royal franchise: and indeed they are for the most part granted out to the lords of manors, or other liberties; to the perversion of their original design. xvii. another branch of the king's ordinary revenue arises from escheats of lands, which happen upon the defect of heirs to succeed to the inheritance; whereupon they in general revert to and vest in the king, who is esteemed, in the eye of the law, the original proprietor of all the lands in the kingdom. but the discussion of this topic more properly belongs to the second book of these commentaries, wherein we shall particularly consider the manner in which lands may be acquired or lost by escheat. xviii. i proceed therefore to the eighteenth and last branch of the king's ordinary revenue; which consists in the custody of idiots, from whence we shall be naturally led to consider also the custody of lunatics. an idiot, or natural fool, is one that hath had no understanding from his nativity; and therefore is by law presumed never likely to attain any. for which reason the custody of him and of his lands was formerly vested in the lord of the fee[h]; (and therefore still, by special custom, in some manors the lord shall have the ordering of idiot and lunatic copyholders[i]) but, by reason of the manifold abuses of this power by subjects, it was at last provided by common consent, that it should be given to the king, as the general conservator of his people, in order to prevent the idiot from wasting his estate, and reducing himself and his heirs to poverty and distress[k]: this fiscal prerogative of the king is declared in parliament by statute edw. ii. c. . which directs (in affirmance of the common law[l],) that the king shall have ward of the lands of natural fools, taking the profits without waste or destruction, and shall find them necessaries; and after the death of such idiots he shall render the estate to the heirs; in order to prevent such idiots from aliening their lands, and their heirs from being disherited. [footnote h: flet. _l._ . _c._ . §. .] [footnote i: dyer. . hutt. . noy .] [footnote k: f.n.b. .] [footnote l: rep. .] by the old common law there is a writ _de idiota inquirendo_, to enquire whether a man be an idiot or not[m]: which must be tried by a jury of twelve men; and if they find him _purus idiota_, the profits of his lands, and the custody of his person may be granted by the king to some subject, who has interest enough to obtain them[n]. this branch of the revenue hath been long considered as a hardship upon private families; and so long ago as in the jac. i. it was under the consideration of parliament, to vest this custody in the relations of the party, and to settle an equivalent on the crown in lieu of it; it being then proposed to share the same fate with the slavery of the feodal tenures, which has been since abolished[o]. yet few instances can be given of the oppressive exertion of it, since it seldom happens that a jury finds a man an idiot _a nativitate_, but only _non compos mentis_ from some particular time; which has an operation very different in point of law. [footnote m: f.n.b. .] [footnote n: this power, though of late very rarely exerted, is still alluded to in common speech, by that usual expression of _begging_ a man for a fool.] [footnote o: . inst. . com. journ. .] a man is not an idiot[p], if he hath any glimmering of reason, so that he can tell his parents, his age, or the like common matters. but a man who is born deaf, dumb, and blind, is looked upon by the law as in the same state with an idiot[q]; he being supposed incapable of understanding, as wanting those senses which furnish the human mind with ideas. [footnote p: f.n.b. .] [footnote q: co. litt. . fleta. _l._ . _c._ .] a lunatic, or _non compos mentis_, is one who hath had understanding, but by disease, grief, or other accident hath lost the use of his reason. a lunatic is indeed properly one that hath lucid intervals; sometimes enjoying his senses, and sometimes not, and that frequently depending upon the change of the moon. but under the general name of _non compos mentis_ (which sir edward coke says is the most legal name[r]) are comprized not only lunatics, but persons under frenzies; or who lose their intellects by disease; those that _grow_ deaf, dumb, and blind, not being _born_ so; or such, in short, as are by any means rendered incapable of conducting their own affairs. to these also, as well as idiots, the king is guardian, but to a very different purpose. for the law always imagines, that these accidental misfortunes may be removed; and therefore only constitutes the crown a trustee for the unfortunate persons, to protect their property, and to account to them for all profits received, if they recover, or after their decease to their representatives. and therefore it is declared by the statute edw. ii. c. . that the king shall provide for the custody and sustentation of lunatics, and preserve their lands and the profits of them, for their use, when they come to their right mind: and the king shall take nothing to his own use; and if the parties die in such estate, the residue shall be distributed for their souls by the advice of the ordinary, and of course (by the subsequent amendments of the law of administrations) shall now go to their executors or administrators. [footnote r: inst. .] the method of proving a person _non compos_ is very similar to that of proving him an idiot. the lord chancellor, to whom, by special authority from the king, the custody of idiots and lunatics is intrusted[s], upon petition or information, grants a commission in nature of the writ _de idiota inquirendo_, to enquire into the party's state of mind; and if he be found _non compos_, he usually commits the care of his person, with a suitable allowance for his maintenance, to some friend, who is then called his committee. however, to prevent sinister practices, the next heir is never permitted to be this committee of the person; because it is his interest that the party should die. but, it hath been said, there lies not the same objection against his next of kin, provided he be not his heir; for it is his interest to preserve the lunatic's life, in order to increase the personal estate by savings, which he or his family may hereafter be entitled to enjoy[t]. the heir is generally made the manager or committee of the estate, it being clearly his interest by good management to keep it in condition; accountable however to the court of chancery, and to the _non compos_ himself, if he recovers; or otherwise, to his administrators. [footnote s: p. wms. .] [footnote t: p. wms. .] in this care of idiots and lunatics the civil law agrees with ours; by assigning them tutors to protect their persons, and curators to manage their estates. but in another instance the roman law goes much beyond the english. for, if a man by notorious prodigality was in danger of wasting his estate, he was looked upon as _non compos_ and committed to the care of curators or tutors by the praetor[u]. and by the laws of solon such prodigals were branded with perpetual infamy[w]. but with us, when a man on an inquest of idiocy hath been returned an _unthrift_ and not an _idiot_[x], no farther proceedings have been had. and the propriety of the practice itself seems to be very questionable. it was doubtless an excellent method of benefiting the individual and of preserving estates in families; but it hardly seems calculated for the genius of a free nation, who claim and exercise the liberty of using their own property as they please. "_sic utere tuo, ut alienum non laedas_," is the only restriction our laws have given with regard to oeconomical prudence. and the frequent circulation and transfer of lands and other property, which cannot be effected without extravagance somewhere, are perhaps not a little conducive towards keeping our mixed constitution in it's due health and vigour. [footnote u: _solent praetores, si talem hominem invenerint, qui neque tempus neque finem expensarum habet, sed bona sua dilacerando et dissipando profundit, curatorem ei dare, exemplo furiosi: et tamdiu erunt ambo in curatione, quamdiu vel furiosus sanitatem, vel ille bonos mores, receperit._ _ff._ . . .] [footnote w: potter. antiqu. b. . c. .] [footnote x: bro. _abr. tit. ideot._ .] this may suffice for a short view of the king's _ordinary_ revenue, or the proper patrimony of the crown; which was very large formerly, and capable of being increased to a magnitude truly formidable: for there are very few estates in the kingdom, that have not, at some period or other since the norman conquest, been vested in the hands of the king by forfeiture, escheat, or otherwise. but, fortunately for the liberty of the subject, this hereditary landed revenue, by a series of improvident management, is sunk almost to nothing; and the casual profits, arising from the other branches of the _census regalis_, are likewise almost all of them alienated from the crown. in order to supply the deficiences of which, we are now obliged to have recourse to new methods of raising money, unknown to our early ancestors; which methods constitute the king's _extraordinary_ revenue. for, the publick patrimony being got into the hands of private subjects, it is but reasonable that private contributions should supply the public service. which, though it may perhaps fall harder upon some individuals, whose ancestors have had no share in the general plunder, than upon others, yet, taking the nation throughout, it amounts to nearly the same; provided the gain by the extraordinary, should appear to be no greater than the loss by the ordinary, revenue. and perhaps, if every gentleman in the kingdom was to be stripped of such of his lands as were formerly the property of the crown; was to be again subject to the inconveniences of purveyance and pre-emption, the oppression of forest laws, and the slavery of feodal tenures; and was to resign into the king's hands all his royal franchises of waifs, wrecks, estrays, treasure-trove, mines, deodands, forfeitures, and the like; he would find himself a greater loser, than by paying his _quota_ to such taxes, as are necessary to the support of government. the thing therefore to be wished and aimed at in a land of liberty, is by no means the total abolition of taxes, which would draw after it very pernicious consequences, and the very supposition of which is the height of political absurdity. for as the true idea of government and magistracy will be found to consist in this, that some few men are deputed by many others to preside over public affairs, so that individuals may the better be enabled to attend to their private concerns; it is necessary that those individuals should be bound to contribute a portion of their private gains, in order to support that government, and reward that magistracy, which protects them in the enjoyment of their respective properties. but the things to be aimed at are wisdom and moderation, not only in granting, but also in the method of raising, the necessary supplies; by contriving to do both in such a manner as may be most conducive to the national welfare and at the same time most consistent with oeconomy and the liberty of the subject; who, when properly taxed, contributes only, as was before observed[y], some part of his property, in order to enjoy the rest. [footnote y: pag. .] these extraordinary grants are usually called by the synonymous names of aids, subsidies, and supplies; and are granted, we have formerly seen[z], by the commons of great britain, in parliament assembled: who, when they have voted a supply to his majesty, and settled the _quantum_ of that supply, usually resolve themselves into what is called a committee of ways and means, to consider of the ways and means of raising the supply so voted. and in this committee every member (though it is looked upon as the peculiar province of the chancellor of the exchequer) may propose such scheme of taxation as he thinks will be least detrimental to the public. the resolutions of this committee (when approved by a vote of the house) are in general esteemed to be (as it were) final and conclusive. for, through [transcriber's note: though] the supply cannot be actually raised upon the subject till directed by an act of the whole parliament, yet no monied man will scruple to advance to the government any quantity of ready cash, on the credit of a bare vote of the house of commons, though no law be yet passed to establish it. [footnote z: pag. .] the taxes, which are raised upon the subject, are either annual or perpetual. the usual annual taxes are those upon land and malt. i. the land tax, in it's modern shape, has superseded all the former methods of rating either property, or persons in respect of their property, whether by tenths or fifteenths, subsidies on land, hydages, scutages, or talliages; a short explication of which will greatly assist us in understanding our antient laws and history. tenths, and fifteenths[a], were temporary aids issuing out of personal property, and granted to the king by parliament. they were formerly the real tenth or fifteenth part of all the moveables belonging to the subject; when such moveables, or personal estates, were a very different and a much less considerable thing than what they usually are at this day. tenths are said to have been first granted under henry the second, who took advantage of the fashionable zeal for croisades to introduce this new taxation, in order to defray the expense of a pious expedition to palestine, which he really or seemingly had projected against saladine emperor of the saracens; whence it was originally denominated the saladine tenth[b]. but afterwards fifteenths were more usually granted than tenths. originally the amount of these taxes was uncertain, being levied by assessments new made at every fresh grant of the commons, a commission for which is preserved by matthew paris[c]: but it was at length reduced to a certainty in the eighth of edw. iii. when, by virtue of the king's commission, new taxations were made of every township, borough, and city in the kingdom, and recorded in the exchequer; which rate was, at the time, the fifteenth part of the value of every township, the whole amounting to about _l._ and therefore it still kept up the name of a fifteenth, when, by the alteration of the value of money and the encrease of personal property, things came to be in a very different situation. so that when, of later years, the commons granted the king a fifteenth, every parish in england immediately knew their proportion of it; that is, the same identical sum that was assessed by the same aid in the eighth of edw. iii; and then raised it by a rate among themselves, and returned it into the royal exchequer. [footnote a: inst. . inst. .] [footnote b: hoved. _a.d._ . carte. . . hume. . .] [footnote c: _a.d._ .] the other antient levies were in the nature of a modern land tax; for we may trace up the original of that charge as high as to the introduction of our military tenures[d]; when every tenant of a knight's fee was bound, if called upon, to attend the king in his army for forty days in every year. but this personal attendance growing troublesome in many respects, the tenants found means of compounding for it, by first sending others in their stead, and in process of time by making a pecuniary satisfaction to the crown in lieu of it. this pecuniary satisfaction at last came to be levied by assessments, at so much for every knight's fee, under the name of scutages; which appear to have been levied for the first time in the fifth year of henry the second, on account of his expedition to toulouse, and were then (i apprehend) mere arbitrary compositions, as the king and the subject could agree. but this precedent being afterwards abused into a means of oppression, (by levying scutages on the landholders by the royal authority only, whenever our kings went to war, in order to hire mercenary troops and pay their contingent expences) it became thereupon a matter of national complaint; and king john was obliged to promise in his _magna carta_[e], that no scutage should be imposed without the consent of the common council of the realm. this clause was indeed omitted in the charters of henry iii, where[f] we only find it stipulated, that scutages should be taken as they were used to be in the time of king henry the second. yet afterwards, by a variety of statutes under edward i and his grandson[g], it was provided, that the king shall not take any aids or tasks, any talliage or tax, but by the common assent of the great men and commons in parliament. [footnote d: see the second book of these commentaries.] [footnote e: _cap._ .] [footnote f: hen. iii. c. .] [footnote g: edw. i. c. & . edw. i. st. . c. . edw. iii. st. . c. .] of the same nature with scutages upon knights-fees were the assessments of hydage upon all other lands, and of talliage upon cities and burghs[h]. but they all gradually fell into disuse, upon the introduction of subsidies, about the time of king richard ii and king henry iv. these were a tax, not immediately imposed upon property, but upon persons in respect of their reputed estates, after the nominal rate of _s._ in the pound for lands, and _s._ _d._ for goods; and for those of aliens in a double proportion. but this assessment was also made according to an antient valuation; wherein the computation was so very moderate, and the rental of the kingdom was supposed to be so exceeding low, that one subsidy of this sort did not, according to sir edward coke[i], amount to more than _l._ whereas a modern land tax at the same rate produces two millions. it was antiently the rule never to grant more than one subsidy, and two fifteenths at a time; but this rule was broke through for the first time on a very pressing occasion, the spanish invasion in ; when the parliament gave queen elizabeth two subsidies and four fifteenths. afterwards, as money sunk in value, more subsidies were given; and we have an instance in the first parliament of , of the king's desiring twelve subsidies of the commons, to be levied in three years; which was looked upon as a startling proposal: though lord clarendon tells us[k], that the speaker, serjeant glanvile, made it manifest to the house, how very inconsiderable a sum twelve subsidies amounted to, by telling them he had computed what he was to pay for them; and, when he named the sum, he being known to be possessed of a great estate, it seemed not worth any farther deliberation. and indeed, upon calculation, we shall find, that the total amount of these twelve subsidies, to be raised in three years, is less than what is now raised in one year, by a land tax of two shillings in the pound. [footnote h: madox. hist. exch. .] [footnote i: inst. .] [footnote k: hist. b. .] the grant of scutages, talliages, or subsidies by the commons did not extend to spiritual preferments; those being usually taxed at the same time by the clergy themselves in convocation; which grants of the clergy were confirmed in parliament, otherwise they were illegal, and not binding; as the same noble writer observes of the subsidies granted by the convocation, who continued sitting after the dissolution of the first parliament in . a subsidy granted by the clergy was after the rate of _s._ in the pound according to the valuation of their livings in the king's books; and amounted, sir edward coke tells us[l], to about _l._ while this custom continued, convocations were wont to sit as frequently as parliaments: but the last subsidies, thus given by the clergy, were those confirmed by statute car. ii. cap. . since which another method of taxation has generally prevailed, which takes in the clergy as well as the laity; in recompense for which the beneficed clergy have from that period been allowed to vote at the elections of knights of the shire[m]; and thenceforward also the practice of giving ecclesiastical subsidies hath fallen into total disuse. [footnote l: inst .] [footnote m: dalt. of sheriffs, . gilb. hist. of exch. c. .] the lay subsidy was usually raised by commissioners appointed by the crown, or the great officers of state: and therefore in the beginning of the civil wars between charles i and his parliament, the latter, having no other sufficient revenue to support themselves and their measures, introduced the practice of laying weekly and monthly assessments[n] of a specific sum upon the several counties of the kingdom; to be levied by a pound rate on lands and personal estates: which were occasionally continued during the whole usurpation, sometimes at the rate of _l._ a month; sometimes at inferior rates[o]. after the restoration the antient method of granting subsidies, instead of such monthly assessments, was twice, and twice only, renewed; viz. in , when four subsidies were granted by the temporalty, and four by the clergy; and in , when _l._ was raised by way of subsidy, which was the last time of raising supplies in that manner. for, the monthly assessments being now established by custom, being raised by commissioners named by parliament, and producing a more certain revenue; from that time forwards we hear no more of subsidies; but occasional assessments were granted as the national emergencies required. these periodical assessments, the subsidies which preceded them, and the more antient scutage, hydage, and talliage, were to all intents and purposes a land tax; and the assessments were sometimes expressly called so[p]. yet a popular opinion has prevailed, that the land tax was first introduced in the reign of king william iii; because in the year a new assessment or valuation of estates was made throughout the kingdom; which, though by no means a perfect one, had this effect, that a supply of _l._ was equal to _s._ in the pound of the value of the estates given in. and, according to this enhanced valuation, from the year to the present, a period of above seventy years, the land tax has continued an annual charge upon the subject; above half the time at _s._ in the pound, sometimes at _s_, sometimes at _s_, twice[q] at _s_, but without any total intermission. the medium has been _s._ _d._ in the pound, being equivalent to twenty three antient subsidies, and amounting annually to more than a million and an half of money. the method of raising it is by charging a particular sum upon each county, according to the valuation given in, _a.d._ : and this sum is assessed and raised upon individuals (their personal estates, as well as real, being liable thereto) by commissioners appointed in the act, being the principal landholders of the county, and their officers. [footnote n: nov. mar. .] [footnote o: one of these bills of assessment, in , is preserved in scobell's collection, .] [footnote p: com. journ. jun. dec. .] [footnote q: in the years and .] ii. the other annual tax is the malt tax; which is a sum of _l_, raised every year by parliament, ever since , by a duty of _d._ in the bushel on malt, and a proportionable sum on certain liquors, such as cyder and perry, which might otherwise prevent the consumption of malt. this is under the management of the commissioners of the excise; and is indeed itself no other than an annual excise, the nature of which species of taxation i shall presently explain: only premising at present, that in the year an additional perpetual excise of _d._ _per_ bushel was laid upon malt; and in a proportionable excise was laid upon cyder and perry. the perpetual taxes are, i. the customs; or the duties, toll, tribute, or tariff, payable upon merchandize exported and imported. the considerations upon which this revenue (or the more antient part of it, which arose only from exports) was invested in the king, were said to be two[r]; . because he gave the subject leave to depart the kingdom, and to carry his goods along with him. . because the king was bound of common right to maintain and keep up the ports and havens, and to protect the merchant from pirates. some have imagined they are called with us customs, because they were the inheritance of the king by immemorial usage and the common law, and not granted him by any statute[s]: but sir edward coke hath clearly shewn[t], that the king's first claim to them was by grant of parliament edw. i. though the record thereof is not now extant. and indeed this is in express words confessed by statute edw. i. c. . wherein the king promises to take no customs from merchants, without the common assent of the realm, "saving to us and our heirs, the customs on wools, skins, and leather, formerly granted to us by the commonalty aforesaid." these were formerly called the hereditary customs of the crown; and were due on the exportation only of the said three commodities, and of none other: which were stiled the _staple_ commodities of the kingdom, because they were obliged to be brought to those ports where the king's staple was established, in order to be there first rated, and then exported[u]. they were denominated in the barbarous latin of our antient records, _custuma_[w]; not _consuetudines_, which is the language of our law whenever it means merely usages. the duties on wool, sheep-skins, or woolfells, and leather, exported, were called _custuma antiqua sive magna_; and were payable by every merchant, as well native as stranger; with this difference, that merchant-strangers paid an additional toll, _viz._ half as much again as was paid by natives. the _custuma parva et nova_ were an impost of _d._ in the pound, due from merchant-strangers only, for all commodities as well imported as exported; which was usually called the alien's duty, and was first granted in edw. i[x]. but these antient hereditary customs, especially those on wool and woolfells, came to be of little account when the nation became sensible of the advantages of a home manufacture, and prohibited the exportation of wool by statute edw. iii. c. . [footnote r: dyer. .] [footnote s: dyer. . _pl._ .] [footnote t: inst. , .] [footnote u: dav. .] [footnote w: this appellation seems to be derived from the french word _coustum_, or _coûtum_, which signifies toll or tribute, and owes it's own etymology to the word _coust_, which signifies price, charge, or, as we have adopted it in english, _cost_.] [footnote x: inst. .] there is also another antient hereditary duty belonging to the crown, called the _prisage_ or _butlerage_ of wines. prisage was a right of _taking_ two tons of wine from every ship importing into england twenty tons or more; which by edward i was exchanged into a duty of _s._ for every ton imported by merchant-strangers; which is called butlerage, because paid to the king's butler[y]. [footnote y: dav. . _b._ bulstr. .] other customs payable upon exports and imports are distinguished into subsidies, tonnage, poundage, and other imposts. subsidies are such as were imposed by parliament upon any of the staple commodities before mentioned, over and above the _custuma antiqua et magna_: tonnage was a duty upon all wines imported, over and above the prisage and butlerage aforesaid: poundage was a duty imposed _ad valorem_, at the rate of _d._ in the pound, on all other merchandize whatsoever: and the other imports were such as were occasionally laid on by parliament, as circumstances and times required[z]. these distinctions are now in a manner forgotten, except by the officers immediately concerned in this department; their produce being in effect all blended together, under the one denomination of the customs. [footnote z: dav. , .] by these we understand, at present, a duty or subsidy paid by the merchant, at the quay, upon all imported as well as exported commodities, by authority of parliament; unless where, for particular national reasons, certain rewards, bounties, or drawbacks, are allowed for particular exports or imports. those of tonnage and poundage, in particular, were at first granted, as the old statutes, and particularly eliz. c. . express it, for the defence of the realm, and the keeping and safeguard of the seas, and for the intercourse of merchandize safely to come into and pass out of the same. they were at first usually granted only for a stated term of years, as, for two years in ric. ii[a]; but in henry the fifth's time, they were granted him for life by a statute in the third year of his reign; and again to edward iv for the term of his life also: since which time they were regularly granted to all his successors, for life, sometimes at their first, sometimes at other subsequent parliaments, till the reign of charles the first; when, as had before happened in the reign of henry viii[b] and other princes, they were neglected to be asked. and yet they were imprudently and unconstitutionally levied and taken without consent of parliament, (though more than one had been assembled) for fifteen years together; which was one of the causes of those unhappy discontents, justifiable at first in too many instances, but which degenerated at last into causeless rebellion and murder. for, as in every other, so in this particular case, the king (previous to the commencement of hostilities) gave the nation ample satisfaction for the errors of his former conduct, by passing an act[c], whereby he renounced all power in the crown of levying the duty of tonnage and poundage, without the express consent of parliament; and also all power of imposition upon any merchandizes whatever. upon the restoration this duty was granted to king charles the second for life, and so it was to his two immediate successors; but now by three several statutes, ann. c. . geo. i. c. . and geo. i. c. . it is made perpetual and mortgaged for the debt of the publick. the customs, thus imposed by parliament, are chiefly contained in two books of rates, set forth by parliamentary authority[d]; one signed by sir harbottle grimston, speaker of the house of commons in charles the second's time; and the other an additional one signed by sir spenser compton, speaker in the reign of george the first; to which also subsequent additions have been made. aliens pay a larger proportion than natural subjects, which is what is now generally understood by the aliens' duty; to be exempted from which is one principal cause of the frequent applications to parliament for acts of naturalization. [footnote a: dav. .] [footnote b: stat. hen. viii. c. .] [footnote c: car. i. c. .] [footnote d: stat. car. ii. c. . geo. i. c. .] these customs are then, we see, a tax immediately paid by the merchant, although ultimately by the consumer. and yet these are the duties felt least by the people; and, if prudently managed, the people hardly consider that they pay them at all. for the merchant is easy, being sensible he does not pay them for himself; and the consumer, who really pays them, confounds them with the price of the commodity: in the same manner as tacitus observes, that the emperor nero gained the reputation of abolishing the tax on the sale of slaves, though he only transferred it from the buyer to the seller; so that it was, as he expresses it, "_remissum magis specie, quam vi: quia cum venditor pendere juberetur, in partem pretii emptoribus accrescebat_[e]." but this inconvenience attends it on the other hand, that these imposts, if too heavy, are a check and cramp upon trade; and especially when the value of the commodity bears little or no proportion to the quantity of the duty imposed. this in consequence gives rise also to smuggling, which then becomes a very lucrative employment: and it's natural and most reasonable punishment, _viz._ confiscation of the commodity, is in such cases quite ineffectual; the intrinsic value of the goods, which is all that the smuggler has paid, and therefore all that he can lose, being very inconsiderable when compared with his prospect of advantage in evading the duty. recourse must therefore be had to extraordinary punishments to prevent it; perhaps even to capital ones: which destroys all proportion of punishment[f], and puts murderers upon an equal footing with such as are really guilty of no natural, but merely a positive offence. [footnote e: hist. l. .] [footnote f: montesqu. sp. l. b. . c. .] there is also another ill consequence attending high imports on merchandize, not frequently considered, but indisputably certain; that the earlier any tax is laid on a commodity, the heavier it falls upon the consumer in the end: for every trader, through whose hands it passes, must have a profit, not only upon the raw material and his own labour and time in preparing it, but also upon the very tax itself, which he advances to the government; otherwise he loses the use and interest of the money which he so advances. to instance in the article of foreign paper. the merchant pays a duty upon importation, which he does not receive again till he sells the commodity, perhaps at the end of three months. he is therefore equally entitled to a profit upon that duty which he pays at the customhouse, as to a profit upon the original price which he pays to the manufacturer abroad; and considers it accordingly in the price he demands of the stationer. when the stationer sells it again, he requires a profit of the printer or bookseller upon the whole sum advanced by him to the merchant: and the bookseller does not forget to charge the full proportion to the student or ultimate consumer; who therefore does not only pay the original duty, but the profits of these three intermediate traders, who have successively advanced it for him. this might be carried much farther in any mechanical, or more complicated, branch of trade. ii. directly opposite in it's nature to this is the excise duty; which is an inland imposition, paid sometimes upon the consumption of the commodity, or frequently upon the retail sale, which is the last stage before the consumption. this is doubtless, impartially speaking, the most oeconomical way of taxing the subject: the charges of levying, collecting, and managing the excise duties being considerably less in proportion, than in any other branch of the revenue. it also renders the commodity cheaper to the consumer, than charging it with customs to the same amount would do; for the reason just now given, because generally paid in a much later stage of it. but, at the same time, the rigour and arbitrary proceedings of excise-laws seem hardly compatible with the temper of a free nation. for the frauds that might be committed in this branch of the revenue, unless a strict watch is kept, make it necessary, wherever it is established, to give the officers a power of entring and searching the houses of such as deal in excisable commodities, at any hour of the day, and, in many cases, of the night likewise. and the proceedings in case of transgressions are so summary and sudden, that a man may be convicted in two days time in the penalty of many thousand pounds by two commissioners or justices of the peace; to the total exclusion of the trial by jury, and disregard of the common law. for which reason, though lord clarendon tells us[g], that to his knowlege the earl of bedford (who was made lord treasurer by king charles the first, to oblige his parliament) intended to have set up the excise in england, yet it never made a part of that unfortunate prince's revenue; being first introduced, on the model of the dutch prototype, by the parliament itself after it's rupture with the crown. yet such was the opinion of it's general unpopularity, that when in "aspersions were cast by malignant persons upon the house of commons, that they intended to introduce excises, the house for it's vindication therein did declare, that these rumours were false and scandalous; and that their authors should be apprehended and brought to condign punishment[h]." it's original establishment was in , and it's progress was gradual[i]; being at first laid upon those persons and commodities, where it was supposed the hardship would be least perceivable, _viz._ the makers and venders of beer, ale, cyder, and perry[k]; and the royalists at oxford soon followed the example of their brethren at westminster by imposing a similar duty; both sides protesting that it should be continued no longer than to the end of the war, and then be utterly abolished[l]. but the parliament at westminster soon after imposed it on flesh, wine, tobacco, sugar, and such a multitude of other commodities that it might fairly be denominated general; in pursuance of the plan laid down by mr pymme (who seems to have been the father of the excise) in his letter to sir john hotham[m], signifying, "that they had proceeded in the excise to many particulars, and intended to go on farther; but that it would be necessary to use the people to it by little and little." and afterwards, when the people had been accustomed to it for a series of years, the succeeding champions of liberty boldly and openly declared, "the impost of excise to be the most easy and indifferent levy that could be laid upon the people[n]:" and accordingly continued it during the whole usurpation. upon king charles's return, it having then been long established and it's produce well known, some part of it was given to the crown, in the car. ii, by way of purchase (as was before observed) for the feodal tenures and other oppressive parts of the hereditary revenue. but, from it's first original to the present time, it's very name has been odious to the people of england. it has nevertheless been imposed on abundance of other commodities in the reigns of king william iii, and every succeeding prince, to support the enormous expenses occasioned by our wars on the continent. thus brandies and other spirits are now excised at the distillery; printed silks and linens, at the printers; starch and hair powder, at the maker's; gold and silver wire, at the wiredrawer's; all plate whatsoever, first in the hands of the vendor, who pays yearly for a licence to sell it, and afterwards in the hands of the occupier, who also pays an annual duty for having it in his custody; and coaches and other wheel carriages, for which the occupier is excised; though not with the same circumstances of arbitrary strictness with regard to plate and coaches, as in the other instances. to these we may add coffee and tea, chocolate, and cocoa paste, for which the duty is paid by the retailer; all artificial wines, commonly called sweets; paper and pasteboard, first when made, and again if stained or printed; malt as before-mentioned; vinegars; and the manufacture of glass; for all which the duty is paid by the manufacturer; hops, for which the person that gathers them is answerable; candles and soap, which are paid for at the maker's; malt liquors brewed for sale, which are excised at the brewery; cyder and perry, at the mill; and leather and skins, at the tanner's. a list, which no friend to his country would wish to see farther encreased. [footnote g: hist. b. .] [footnote h: com. journ. oct. .] [footnote i: the translator and continuator of petavius's chronological history (lond. .) informs us, that it was first moved for, mar. , by mr prynne. and it appears from the journals of the commons that on that day the house resolved itself into a committee to consider of raising money, in consequence of which the excise was afterwards voted. but mr prynne was not a member of parliament till nov. ; and published in "a protestation against the illegal, detestable, and oft-condemned tax and extortion of excise in general." it is probably therefore a mistake of the printer for mr pymme, who was intended for chancellor of the exchequer under the earl of bedford. (lord clar. b. .)] [footnote k: com. journ. may .] [footnote l: lord clar. b. .] [footnote m: may . dugdale of the troubles, .] [footnote n: ord. aug. . c. . scobell. . stat. . c. . scobell. .] iii. i proceed therefore to a third duty, namely that upon salt; which is another distinct branch of his majesty's extraordinary revenue, and consists in an excise of _s._ _d._ _per_ bushel imposed upon all salt, by several statutes of king william and other subsequent reigns. this is not generally called an excise, because under the management of different commissioners: but the commissioners of the salt duties have by statute ann. c. . the same powers, and must observe the same regulations, as those of other excises. this tax had usually been only temporary; but by statute geo. ii. c. . was made perpetual. iv. another very considerable branch of the revenue is levied with greater chearfulness, as, instead of being a burden, it is a manifest advantage to the public. i mean the post-office, or duty for the carriage of letters. as we have traced the original of the excise to the parliament of , so it is but justice to observe that this useful invention owes it's birth to the same assembly. it is true, there existed postmasters in much earlier times: but i apprehend their business was confined to the furnishing of posthorses to persons who were desirous to travel expeditiously, and to the dispatching extraordinary pacquets upon special occasions. the outline of the present plan seems to have been originally conceived by mr edmond prideaux, who was appointed attorney general to the commonwealth after the murder of king charles. he was a chairman of a committee in for considering what rates should be set upon inland letters[o]; and afterwards appointed postmaster by an ordinance of both the houses[p], in the execution of which office he first established a weekly conveyance of letters into all parts of the nation[q]: thereby saving to the public the charge of maintaining postmasters, to the amount of _l._ _per annum_. and, his own emoluments being probably considerable, the common council of london endeavoured to erect another post-office in opposition to his, till checked by a resolution of the commons[r], declaring, that the office of postmaster is and ought to be in the sole power and disposal of the parliament. this office was afterwards farmed by one manley in [s]. but, in , a regular post-office was erected by the authority of the protector and his parliament, upon nearly the same model as has been ever since adopted, with the same rates of postage as were continued till the reign of queen anne[t]. after the restoration a similar office, with some improvements, was established by statute car. ii. c. . but the rates of letters were altered, and some farther regulations added, by the statutes ann. c. . geo. i. c. . geo. ii. c. . and geo. iii. c. . and penalties were enacted, in order to confine the carriage of letters to the public office only, except in some few cases: a provision, which is absolutely necessary; for nothing but an exclusive right can support an office of this sort: many rival independent offices would only serve to ruin one another. the privilege of letters coming free of postage, to and from members of parliament, was claimed by the house of commons in , when the first legal settlement of the present post-office was made[u]; but afterwards dropped[w] upon a private assurance from the crown, that this privilege should be allowed the members[x]. and accordingly a warrant was constantly issued to the postmaster-general[y], directing the allowance thereof, to to [transcriber's note: duplicate word] the extent of two ounces in weight: till at length it was expressly confirmed by statute geo. iii. c. ; which adds many new regulations, rendered necessary by the great abuses crept into the practice of franking; whereby the annual amount of franked letters had gradually increased, from _l._ in the year , to _l._ in the year [z]. there cannot be devised a more eligible method, than this, of raising money upon the subject: for therein both the government and the people find a mutual benefit. the government acquires a large revenue; and the people do their business with greater ease, expedition, and cheapness, than they would be able to do if no such tax (and of course no such office) existed. [footnote o: com. journ. mar. .] [footnote p: _ibid._ sept. .] [footnote q: _ibid._ mar. .] [footnote r: _ibid._] [footnote s: scobell. .] [footnote t: com. journ. jun. . scobell. .] [footnote u: com. journ. dec. .] [footnote w: _ibid._ dec. .] [footnote x: _ibid._ apr. .] [footnote y: _ibid._ feb. .] [footnote z: _ibid._ mar. .] v. a fifth branch of the perpetual revenue consists in the stamp duties, which are a tax imposed upon all parchment and paper whereon any legal proceedings, or private instruments of almost any nature whatsoever, are written; and also upon licences for retailing wines, of all denominations; upon all almanacks, newspapers, advertisements, cards, dice, and pamphlets containing less than six sheets of paper. these imposts are very various, according to the nature of the thing stamped, rising gradually from a penny to ten pounds. this is also a tax, which though in some instances it may be heavily felt, by greatly increasing the expence of all mercantile as well as legal proceedings, yet (if moderately imposed) is of service to the public in general, by authenticating instruments, and rendering it much more difficult than formerly to forge deeds of any standing; since, as the officers of this branch of the revenue vary their stamps frequently, by marks perceptible to none but themselves, a man that would forge a deed of king william's time, must know and be able to counterfeit the stamp of that date also. in france and some other countries the duty is laid on the contract itself, not on the instrument in which it is contained: but this draws the subject into a thousand nice disquisitions and disputes concerning the nature of his contract, and whether taxable or not; in which the farmers of the revenue are sure to have the advantage. our method answers the purposes of the state as well, and consults the ease of the subject much better. the first institution of the stamp duties was by statute & w. & m. c. . and they have since in many instances been encreased to five times their original amount. vi. a sixth branch is the duty upon houses and windows. as early as the conquest mention is made in domesday book of fumage or fuage, vulgarly called smoke farthings; which were paid by custom to the king for every chimney in the house. and we read that edward the black prince (soon after his successes in france) in imitation of the english custom, imposed a tax of a florin upon every hearth in his french dominions[a]. but the first parliamentary establishment of it in england was by statute & car. ii. c. . whereby an hereditary revenue of _s._ for every hearth, in all houses paying to church and poor, was granted to the king for ever. and, by subsequent statutes, for the more regular assessment of this tax, the constable and two other substantial inhabitants of the parish, to be appointed yearly, were, once in every year, empowered to view the inside of every house in the parish. but, upon the revolution, by statute w. & m. st. . c. . hearth-money was declared to be "not only a great oppression to the poorer sort, but a badge of slavery upon the whole people, exposing every man's house to be entered into, and searched at pleasure, by persons unknown to him; and therefore, to erect a lasting monument of their majesties' goodness in every house in the kingdom, the duty of hearth-money was taken away and abolished." this monument of goodness remains among us to this day: but the prospect of it was somewhat darkened when, in six years afterwards, by statute w. iii. c. . a tax was laid upon all houses (except cottages) of _s._ now advanced to _s._ _per_ house, and a tax also upon all windows, if they exceed nine, in such house. which rates have been from time to time varied, (particularly by statutes geo. ii. c. . and geo. ii. c. .) and power is given to surveyors, appointed by the crown, to inspect the outside of houses, and also to pass through any house two days in the year, into any court or yard to inspect the windows there. [footnote a: mod. un. hist. xxiii. . spelm. gloss. _tit. fuage_.] vii. the seventh branch of the extraordinary perpetual revenue is the duty arising from licences to hackney coaches and chairs in london, and the parts adjacent. in two hundred hackney coaches were allowed within london, westminster, and six miles round, under the direction of the court of aldermen[b]. by statute & car. ii. c. . four hundred were licensed; and the money arising thereby was applied to repairing the streets[c]. this number was increased to seven hundred by statute w. & m. c. . and the duties vested in the crown: and by the statute ann. c. . and other subsequent statutes[d], there are now eight hundred licensed coaches and four hundred chairs. this revenue is governed by commissioners of it's own, and is, in truth, a benefit to the subject; as the expense of it is felt by no individual, and it's necessary regulations have established a competent jurisdiction, whereby a very refractory race of men may be kept in some tolerable order. [footnote b: scobell. .] [footnote c: com. journ. feb. .] [footnote d: ann. c. . §. . geo. i. c. . geo. ii. c. .] viii. the eighth and last branch of the king's extraordinary perpetual revenue is the duty upon offices and pensions; consisting in a payment of _s._ in the pound (over and above all other duties) out of all salaries, fees, and perquisites, of offices and pensions payable by the crown. this highly popular taxation was imposed by statute geo. ii. c. . and is under the direction of the commissioners of the land tax. the clear neat produce of these several branches of the revenue, after all charges of collecting and management paid, amounts annually to about seven millions and three quarters sterling; besides two millions and a quarter raised annually, at an average, by the land and malt tax. how these immense sums are appropriated, is next to be considered. and this is, first and principally, to the payment of the interest of the national debt. in order to take a clear and comprehensive view of the nature of this national debt, it must first be premised, that after the revolution, when our new connections with europe introduced a new system of foreign politics, the expenses of the nation, not only in settling the new establishment, but in maintaining long wars, as principals, on the continent, for the security of the dutch barrier, reducing the french monarchy, settling the spanish succession, supporting the house of austria, maintaining the liberties of the germanic body, and other purposes, increased to an unusual degree: insomuch that it was not thought advisable to raise all the expenses of any one year by taxes to be levied within that year, lest the unaccustomed weight of them should create murmurs among the people. it was therefore the policy of the times, to anticipate the revenues of their posterity, by borrowing immense sums for the current service of the state, and to lay no more taxes upon the subject than would suffice to pay the annual interest of the sums so borrowed: by this means converting the principal debt into a new species of property, transferrable from one man to another at any time and in any quantity. a system which seems to have had it's original in the state of florence, _a.d._ : which government then owed about _l._ sterling; and, being unable to pay it, formed the principal into an aggregate sum, called metaphorically a _mount_ or _bank_, the shares whereof were transferrable like our stocks, with interest at _per cent._ the prices varying according to the exigencies of the state[e]. this laid the foundation of what is called the national debt: for a few long annuities created in the reign of charles ii will hardly deserve that name. and the example then set has been so closely followed during the long wars in the reign of queen anne, and since, that the capital of the national debt, (funded and unfunded) amounted in january to upwards of , , _l._ to pay the interest of which, and the charges for management, amounting annually to about four millions and three quarters, the revenues just enumerated are in the first place mortgaged, and made perpetual by parliament. perpetual, i say; but still redeemable by the same authority that imposed them: which, if it at any time can pay off the capital, will abolish those taxes which are raised to discharge the interest. [footnote e: _pro tempore, pro spe, pro commodo, minuitur eorum pretium atque augescit._ aretin. see mod. un. hist. xxxvi. .] by this means the quantity of property in the kingdom is greatly encreased in idea, compared with former times; yet, if we coolly consider it, not at all encreased in reality. we may boast of large fortunes, and quantities of money in the funds. but where does this money exist? it exists only in name, in paper, in public faith, in parliamentary security: and that is undoubtedly sufficient for the creditors of the public to rely on. but then what is the pledge which the public faith has pawned for the security of these debts? the land, the trade, and the personal industry of the subject; from which the money must arise that supplies the several taxes. in these therefore, and these only, the property of the public creditors does really and intrinsically exist: and of course the land, the trade, and the personal industry of individuals, are diminished in their true value just so much as they are pledged to answer. if a's income amounts to _l._ _per annum_; and he is so far indebted to b, that he pays him _l._ _per annum_ for his interest; one half of the value of a's property is transferred to b the creditor. the creditor's property exists in the demand which he has upon the debtor, and no where else; and the debtor is only a trustee to his creditor for one half of the value of his income. in short, the property of a creditor of the publick, consists in a certain portion of the national taxes: by how much therefore he is the richer, by so much the nation, which pays these taxes, is the poorer. the only advantage, that can result to a nation from public debts, is the encrease of circulation by multiplying the cash of the kingdom, and creating a new species of money, always ready to be employed in any beneficial undertaking, by means of it's transferrable quality; and yet productive of some profit, even when it lies idle and unemployed. a certain proportion of debt seems therefore to be highly useful to a trading people; but what that proportion is, it is not for me to determine. thus much is indisputably certain, that the present magnitude of our national incumbrances very far exceeds all calculations of commercial benefit, and is productive of the greatest inconveniences. for, first, the enormous taxes, that are raised upon the necessaries of life for the payment of the interest of this debt, are a hurt both to trade and manufactures, by raising the price as well of the artificer's subsistence, as of the raw material, and of course, in a much greater proportion, the price of the commodity itself. secondly, if part of this debt be owing to foreigners, either they draw out of the kingdom annually a considerable quantity of specie for the interest; or else it is made an argument to grant them unreasonable privileges in order to induce them to reside here. thirdly, if the whole be owing to subjects only, it is then charging the active and industrious subject, who pays his share of the taxes, to maintain the indolent and idle creditor who receives them. lastly, and principally, it weakens the internal strength of a state, by anticipating those resources which should be reserved to defend it in case of necessity. the interest we now pay for our debts would be nearly sufficient to maintain any war, that any national motives could require. and if our ancestors in king william's time had annually paid, so long as their exigences lasted, even a less sum than we now annually raise upon their accounts, they would in the time of war have borne no greater burdens, than they have bequeathed to and settled upon their posterity in time of peace; and might have been eased the instant the exigence was over. the produce of the several taxes beforementioned were originally separate and distinct funds; being securities for the sums advanced on each several tax, and for them only. but at last it became necessary, in order to avoid confusion, as they multiplied yearly, to reduce the number of these separate funds, by uniting and blending them together; superadding the faith of parliament for the general security of the whole. so that there are now only three capital funds of any account, the _aggregate_ fund, and the _general_ fund, so called from such union and addition; and the _south sea_ fund, being the produce of the taxes appropriated to pay the interest of such part of the national debt as was advanced by that company and it's annuitants. whereby the separate funds, which were thus united, are become mutual securities for each other; and the whole produce of them, thus aggregated, is liable to pay such interest or annuities as were formerly charged upon each distinct fund; the faith of the legislature being moreover engaged to supply any casual deficiences. the customs, excises, and other taxes, which are to support these funds, depending on contingencies, upon exports, imports, and consumptions, must necessarily be of a very uncertain amount; but they have always been considerably more than was sufficient to answer the charge upon them. the surplusses therefore of the three great national funds, the aggregate, general, and south sea funds, over and above the interest and annuities charged upon them, are directed by statute geo. i. c. . to be carried together, and to attend the disposition of parliament; and are usually denominated the _sinking_ fund, because originally destined to sink and lower the national debt. to this have been since added many other intire duties, granted in subsequent years; and the annual interest of the sums borrowed on their respective credits is charged on and payable out of the produce of the sinking fund. however the neat surplusses and savings, after all deductions paid, amount annually to a very considerable sum; particularly in the year ending at christmas , to about two millions and a quarter. for, as the interest on the national debt has been at several times reduced, (by the consent of the proprietors, who had their option either to lower their interest or be paid their principal) the savings from the appropriated revenues must needs be extremely large. this sinking fund is the last resort of the nation; on which alone depend all the hopes we can entertain of ever discharging or moderating our incumbrances. and therefore the prudent application of the large sums, now arising from this fund, is a point of the utmost importance, and well worthy the serious attention of parliament; which has thereby been enabled, in this present year , to reduce above two millions sterling of the public debt. but, before any part of the aggregate fund (the surplusses whereof are one of the chief ingredients that form the sinking fund) can be applied to diminish the principal of the public debt, it stands mortgaged by parliament to raise an annual sum for the maintenance of the king's houshold and the civil list. for this purpose, in the late reigns, the produce of certain branches of the excise and customs, the post-office, the duty on wine licences, the revenues of the remaining crown lands, the profits arising from courts of justice, (which articles include all the hereditary revenues of the crown) and also a clear annuity of _l._ in money, were settled on the king for life, for the support of his majesty's houshold, and the honour and dignity of the crown. and, as the amount of these several branches was uncertain, (though in the last reign they were generally computed to raise almost a million) if they did not arise annually to , _l._ the parliament engaged to make up the deficiency. but his present majesty having, soon after his accession, spontaneously signified his consent, that his own hereditary revenues might be so disposed of as might best conduce to the utility and satisfaction of the public, and having graciously accepted the limited sum of _l._ _per annum_ for the support of his civil list (and that also charged with three life annuities, to the princess of wales, the duke of cumberland, and the princess amalie, to the amount of _l._) the said hereditary and other revenues are now carried into and made a part of the aggregate fund, and the aggregate fund is charged with the payment of the whole annuity to the crown of _l._ _per annum_[f]. hereby the revenues themselves, being put under the same care and management as the other branches of the public patrimony, will produce more and be better collected than heretofore; and the public is a gainer of upwards of _l._ _per annum_ by this disinterested bounty of his majesty. the civil list, thus liquidated, together with the four millions and three quarters, interest of the national debt, and the two millions and a quarter produced from the sinking fund, make up the seven millions and three quarters _per annum_, neat money, which were before stated to be the annual produce of our _perpetual_ taxes; besides the immense, though uncertain, sums arising from the _annual_ taxes on land and malt, but which, at an average, may be calculated at more than two millions and a quarter; and, added to the preceding sum, make the clear produce of the taxes, exclusive of the charge of collecting, which are raised yearly on the people of this country, and returned into the king's exchequer, amount to upwards of ten millions sterling. [footnote f: stat. geo. iii. c. .] the expences defrayed by the civil list are those that in any shape relate to civil government; as, the expenses of the houshold; all salaries to officers of state, to the judges, and every of the king's servants; the appointments to foreign embassadors; the maintenance of the royal family; the king's private expenses, or privy purse; and other very numerous outgoings, as secret service money, pensions, and other bounties: which sometimes have so far exceeded the revenues appointed for that purpose, that application has been made to parliament to discharge the debts contracted on the civil list; as particularly in , when one million was granted for that purpose by the statute geo. i. c. . the civil list is indeed properly the whole of the king's revenue in his own distinct capacity; the rest being rather the revenue of the public, or it's creditors, though collected, and distributed again, in the name and by the officers of the crown: it now standing in the same place, as the hereditary income did formerly; and, as that has gradually diminished, the parliamentary appointments have encreased. the whole revenue of queen elizabeth did not amount to more than _l._ a year[g]: that of king charles i was[h] _l._ and the revenue voted for king charles ii was[i] _l._ though it never in fact amounted to quite so much[k]. but it must be observed, that under these sums were included all manner of public expenses, among which lord clarendon in his speech to the parliament computed that the charge of the navy and land forces amounted annually to _l._ which was ten times more than before the former troubles[l]. the same revenue, subject to the same charges, was settled on on [transcriber's note: duplicate word] king james ii[m]: but by the encrease of trade, and more frugal management, it amounted on an average to a million and half _per annum_, (besides other additional customs, granted by parliament[n], which produced an annual revenue of _l._) out of which his fleet and army were maintained at the yearly expense of[o] _l._ after the revolution, when the parliament took into it's own hands the annual support of the forces, both maritime and military, a civil list revenue was settled on the new king and queen, amounting, with the hereditary duties, to _l._ _per annum_[p]; and the same was continued to queen anne and king george i[q]. that of king george ii, we have seen, was nominally augmented to[r] _l._ and in fact was considerably more. but that of his present majesty is expressly limited to that sum; and, by reason of the charges upon it, amounts at present to little more than _l._ and upon the whole it is doubtless much better for the crown, and also for the people, to have the revenue settled upon the modern footing rather than the antient. for the crown; because it is more certain, and collected with greater ease: for the people; because they are now delivered from the feodal hardships, and other odious branches of the prerogative. and though complaints have sometimes been made of the encrease of the civil list, yet if we consider the sums that have been formerly granted, the limited extent under which it is now established, the revenues and prerogatives given up in lieu of it by the crown, and (above all) the diminution of the value of money compared with what it was worth in the last century, we must acknowlege these complaints to be void of any rational foundation; and that it is impossible to support that dignity, which a king of great britain should maintain, with an income in any degree less than what is now established by parliament. [footnote g: lord clar. continuation. .] [footnote h: com. journ. sept. .] [footnote i: _ibid._] [footnote k: _ibid._ jun. . lord clar. _ibid._] [footnote l: _ibid._ .] [footnote m: stat. jac. ii. c. .] [footnote n: stat. jac. ii. c. & .] [footnote o: com. journ. mar. mar. .] [footnote p: _ibid._ mar. .] [footnote q: _ibid._ mar. . aug. .] [footnote r: stat. geo. ii. c. .] this finishes our enquiries into the fiscal prerogatives of the king; or his revenue, both ordinary and extraordinary. we have therefore now chalked out all the principal outlines of this vast title of the law, the supreme executive magistrate, or the king's majesty, considered in his several capacities and points of view. but, before we intirely dismiss this subject, it may not be improper to take a short comparative review of the power of the executive magistrate, or prerogative of the crown, as it stood in former days, and as it stands at present. and we cannot but observe, that most of the laws for ascertaining, limiting, and restraining this prerogative have been made within the compass of little more than a century past; from the petition of right in car. i. to the present time. so that the powers of the crown are now to all appearance greatly curtailed and diminished since the reign of king james the first: particularly, by the abolition of the star chamber and high commission courts in the reign of charles the first, and by the disclaiming of martial law, and the power of levying taxes on the subject, by the same prince: by the disuse of forest laws for a century past: and by the many excellent provisions enacted under charles the second; especially, the abolition of military tenures, purveyance, and preemption; the _habeas corpus_ act; and the act to prevent the discontinuance of parliaments for above three years: and, since the revolution, by the strong and emphatical words in which our liberties are asserted in the bill of rights, and act of settlement; by the act for triennial, since turned into septennial, elections; by the exclusion of certain officers from the house of commons; by rendering the seats of the judges permanent, and their salaries independent; and by restraining the king's pardon from operating on parliamentary impeachments. besides all this, if we consider how the crown is impoverished and stripped of all it's antient revenues, so that it greatly depends on the liberality of parliament for it's necessary support and maintenance, we may perhaps be led to think, that the ballance is enclined pretty strongly to the popular scale, and that the executive magistrate has neither independence nor power enough left, to form that check upon the lords and commons, which the founders of our constitution intended. but, on the other hand, it is to be considered, that every prince, in the first parliament after his accession, has by long usage a truly royal addition to his hereditary revenue settled upon him for his life; and has never any occasion to apply to parliament for supplies, but upon some public necessity of the whole realm. this restores to him that constitutional independence, which at his first accession seems, it must be owned, to be wanting. and then, with regard to power, we may find perhaps that the hands of government are at least sufficiently strengthened; and that an english monarch is now in no danger of being overborne by either the nobility or the people. the instruments of power are not perhaps so open and avowed as they formerly were, and therefore are the less liable to jealous and invidious reflections; but they are not the weaker upon that account. in short, our national debt and taxes (besides the inconveniences before-mentioned) have also in their natural consequences thrown such a weight of power into the executive scale of government, as we cannot think was intended by our patriot ancestors; who gloriously struggled for the abolition of the then formidable parts of the prerogative; and by an unaccountable want of foresight established this system in their stead. the entire collection and management of so vast a revenue, being placed in the hands of the crown, have given rise to such a multitude of new officers, created by and removeable at the royal pleasure, that they have extended the influence of government to every corner of the nation. witness the commissioners, and the multitude of dependents on the customs, in every port of the kingdom; the commissioners of excise, and their numerous subalterns, in every inland district; the postmasters, and their servants, planted in every town, and upon every public road; the commissioners of the stamps, and their distributors, which are full as scattered and full as numerous; the officers of the salt duty, which, though a species of excise and conducted in the same manner, are yet made a distinct corps from the ordinary managers of that revenue; the surveyors of houses and windows; the receivers of the land tax; the managers of lotteries; and the commissioners of hackney coaches; all which are either mediately or immediately appointed by the crown, and removeable at pleasure without any reason assigned: these, it requires but little penetration to see, must give that power, on which they depend for subsistence, an influence most amazingly extensive. to this may be added the frequent opportunities of conferring particular obligations, by preference in loans, subscriptions, tickets, remittances, and other money-transactions, which will greatly encrease this influence; and that over those persons whose attachment, on account of their wealth, is frequently the most desirable. all this is the natural, though perhaps the unforeseen, consequence of erecting our funds of credit, and to support them establishing our present perpetual taxes: the whole of which is entirely new since the restoration in ; and by far the greatest part since the revolution in . and the same may be said with regard to the officers in our numerous army, and the places which the army has created. all which put together gives the executive power so persuasive an energy with respect to the persons themselves, and so prevailing an interest with their friends and families, as will amply make amends for the loss of external prerogative. but, though this profusion of offices should have no effect on individuals, there is still another newly acquired branch of power; and that is, not the influence only, but the force of a disciplined army: paid indeed ultimately by the people, but immediately by the crown; raised by the crown, officered by the crown, commanded by the crown. they are kept on foot it is true only from year to year, and that by the power of parliament: but during that year they must, by the nature of our constitution, if raised at all, be at the absolute disposal of the crown. and there need but few words to demonstrate how great a trust is thereby reposed in the prince by his people. a trust, that is more than equivalent to a thousand little troublesome prerogatives. add to all this, that, besides the civil list, the immense revenue of seven millions sterling, which is annually paid to the creditors of the publick, or carried to the sinking fund, is first deposited in the royal exchequer, and thence issued out to the respective offices of payment. this revenue the people can never refuse to raise, because it is made perpetual by act of parliament: which also, when well considered, will appear to be a trust of great delicacy and high importance. upon the whole therefore i think it is clear, that, whatever may have become of the _nominal_, the _real_ power of the crown has not been too far weakened by any transactions in the last century. much is indeed given up; but much is also acquired. the stern commands of prerogative have yielded to the milder voice of influence; the slavish and exploded doctrine of non-resistance has given way to a military establishment by law; and to the disuse of parliaments has succeeded a parliamentary trust of an immense perpetual revenue. when, indeed, by the free operation of the sinking fund, our national debts shall be lessened; when the posture of foreign affairs, and the universal introduction of a well planned and national militia, will suffer our formidable army to be thinned and regulated; and when (in consequence of all) our taxes shall be gradually reduced; this adventitious power of the crown will slowly and imperceptibly diminish, as it slowly and imperceptibly rose. but, till that shall happen, it will be our especial duty, as good subjects and good englishmen, to reverence the crown, and yet guard against corrupt and servile influence from those who are intrusted with it's authority; to be loyal, yet free; obedient, and yet independent: and, above every thing, to hope that we may long, very long, continue to be governed by a sovereign, who, in all those public acts that have personally proceeded from himself, hath manifested the highest veneration for the free constitution of britain; hath already in more than one instance remarkably strengthened it's outworks; and will therefore never harbour a thought, or adopt a persuasion, in any the remotest degree detrimental to public liberty. chapter the ninth. of subordinate magistrates. in a former chapter of these commentaries[a] we distinguished magistrates into two kinds; supreme, or those in whom the sovereign power of the state resides; and subordinate, or those who act in an inferior secondary sphere. we have hitherto considered the former kind only, namely, the supreme legislative power or parliament, and the supreme executive power, which is the king: and are now to proceed to enquire into the rights and duties of the principal subordinate magistrates. [footnote a: ch. . pag. .] and herein we are not to investigate the powers and duties of his majesty's great officers of state, the lord treasurer, lord chamberlain, the principal secretaries, or the like; because i do not know that they are in that capacity in any considerable degree the objects of our laws, or have any very important share of magistracy conferred upon them: except that the secretaries of state are allowed the power of commitment, in order to bring offenders to trial[b]. neither shall i here treat of the office and authority of the lord chancellor, or the other judges of the superior courts of justice; because they will find a more proper place in the third part of these commentaries. nor shall i enter into any minute disquisitions, with regard to the rights and dignities of mayors and aldermen, or other magistrates of particular corporations; because these are mere private and strictly municipal rights, depending entirely upon the domestic constitution of their respective franchises. but the magistrates and officers, whose rights and duties it will be proper in this chapter to consider, are such as are generally in use and have a jurisdiction and authority dispersedly throughout the kingdom: which are, principally, sheriffs; coroners; justices of the peace; constables; surveyors of highways; and overseers of the poor. in treating of all which i shall enquire into, first, their antiquity and original; next, the manner in which they are appointed and may be removed; and, lastly, their rights and duties. and first of sheriffs. [footnote b: leon. . leon. . comb. . mod. . salk. .] i. the sheriff is an officer of very great antiquity in this kingdom, his name being derived from two saxon words, shire reeve, the bailiff or officer of the shire. he is called in latin _vice-comes_, as being the deputy of the earl or _comes_; to whom the custody of the shire is said to have been committed at the first division of this kingdom into counties. but the earls in process of time, by reason of their high employments and attendance on the king's person, not being able to transact the business of the county, were delivered of that burden[c]; reserving to themselves the honour, but the labour was laid on the sheriff. so that now the sheriff does all the king's business in the county; and though he be still called _vice-comes_, yet he is entirely independent of, and not subject to the earl; the king by his letters patent committing _custodiam comitatus_ to the sheriff, and him alone. [footnote c: dalton of sheriffs, c. .] sheriffs were formerly chosen by the inhabitants of the several counties. in confirmation of which it was ordained by statute edw. i. c. . that the people should have election of sheriffs in every shire, where the shrievalty is not of inheritance. for antiently in some counties, particularly on the borders, the sheriffs were hereditary; as i apprehend they are in scotland, and in the county of westmorland, to this day: and the city of london has also the inheritance of the shrievalty of middlesex vested in their body by charter[d]. the reason of these popular elections is assigned in the same statute, c. . "that the commons might chuse such as would not be a burthen to them." and herein appears plainly a strong trace of the democratical part of our constitution; in which form of government it is an indispensable requisite, that the people should chuse their own magistrates[e]. this election was in all probability not absolutely vested in the commons, but required the royal approbation. for in the gothic constitution, the judges of their county courts (which office is executed by our sheriff) were elected by the people, but confirmed by the king: and the form of their election was thus managed; the people, or _incolae territorii_, chose _twelve_ electors, and they nominated _three_ persons, _ex quibus rex unum confirmabat_[f]. but, with us in england, these popular elections, growing tumultuous, were put an end to by the statute edw. ii. st. . which enacted, that the sheriffs should from thenceforth be assigned by the lord chancellor, treasurer, and the judges; as being persons in whom the same trust might with confidence be reposed. by statutes edw. iii. c. . and hen. vi. c. . the chancellor, treasurer, _chief_ justices, and _chief_ baron, are to make this election; and that on the morrow of all souls in the exchequer. but the custom now is (and has been at least ever since the time of fortescue[g], who was chief justice and chancellor to henry the sixth) that _all_ the judges, and certain other great officers, meet in the exchequer chamber on the morrow of all souls yearly, (which day is now altered to the morrow of st. martin by the act for abbreviating michaelmas term) and then and there nominate three persons to the king, who afterwards appoints one of them to be sheriff. this custom, of the _twelve_ judges nominating _three_ persons, seems borrowed from the gothic constitution beforementioned; with this difference, that among the goths the twelve nominors were first elected by the people themselves. and this usage of ours at it's first introduction, i am apt to believe, was founded upon some statute, though not now to be found among our printed laws: first, because it is materially different from the directions of all the statutes beforementioned; which it is hard to conceive that the judges would have countenanced by their concurrence, or that fortescue would have inserted in his book, unless by the authority of some statute: and also, because a statute is expressly referred to in the record, which sir edward coke tells us[h] he transcribed from the council book of mar. hen. vi. and which is in substance as follows. the king had of his own authority appointed a man sheriff of lincolnshire, which office he refused to take upon him: whereupon the opinions of the judges were taken, what should be done in this behalf. and the two chief justices, sir john fortescue and sir john prisot, delivered the unanimous opinion of them all; "that the king did an error when he made a person sheriff, that was not chosen and presented to him according to the _statute_; that the person refusing was liable to no fine for disobedience, as if he had been one of the _three_ persons chosen according to the tenor of the _statute_; that they would advise the king to have recourse to the _three_ persons that were chosen according to the _statute_, or that some other thrifty man be intreated to occupy the office for this year; and that, the next year, to eschew such inconveniences, the order of the _statute_ in this behalf made be observed." but, notwithstanding this unanimous resolution of all the judges of england, thus entered in the council book, some of our writers[i] have affirmed, that the king, by his prerogative, may name whom he pleases to be sheriff, whether chosen by the judges or no. this is grounded on a very particular case in the fifth year of queen elizabeth, when, by reason of the plague, there was no michaelmas term kept at westminster; so that the judges could not meet there _in crastino animarum_ to nominate the sheriffs: whereupon the queen named them herself, without such previous assembly, appointing for the most part one of the two remaining in the last year's list[k]. and this case, thus circumstanced, is the only precedent in our books for the making these extraordinary sheriffs. it is true, the reporter adds, that it was held that the queen by her prerogative might make a sheriff without the election of the judges, _non obstante aliquo statuto in contrarium_: but the doctrine of _non obstante_'s, which sets the prerogative above the laws, was effectually demolished by the bill of rights at the revolution, and abdicated westminster-hall when king james abdicated the kingdom. so that sheriffs cannot now be legally appointed, otherwise than according to the known and established law. [footnote d: rep. .] [footnote e: montesq. sp. l. b. . c. .] [footnote f: stiernhook _de jure goth._ _l._ . _c._ .] [footnote g: _de l.l._ _c._ .] [footnote h: inst. .] [footnote i: jenkins. .] [footnote k: dyer .] sheriffs, by virtue of several old statutes, are to continue in their office no longer than one year; and yet it hath been said[l] that a sheriff may be appointed _durante bene placito_, or during the king's pleasure; and so is the form of the royal writ[m]. therefore, till a new sheriff be named, his office cannot be determined, unless by his own death, or the demise of the king; in which last case it was usual for the successor to send a new writ to the old sheriff[n]: but now by statute ann. st. . c. . all officers appointed by the preceding king may hold their offices for six months after the king's demise, unless sooner displaced by the successor. we may farther observe, that by statute ric. ii. c. . no man, that has served the office of sheriff for one year, can be compelled to serve the same again within three years after. [footnote l: rep. .] [footnote m: dalt. of sheriffs. .] [footnote n: dalt. .] we shall find it is of the utmost importance to have the sheriff appointed according to law, when we consider his power and duty. these are either as a judge, as the keeper of the king's peace, as a ministerial officer of the superior courts of justice, or as the king's bailiff. in his judicial capacity he is to hear and determine all causes of forty shillings value and under, in his county court, of which more in it's proper place: and he has also judicial power in divers other civil cases[o]. he is likewise to decide the elections of knights of the shire, (subject to the control of the house of commons) of coroners, and of verderors; to judge of the qualification of voters, and to return such as he shall determine to be duly elected. [footnote o: dalt. c. .] as the keeper of the king's peace, both by common law and special commission, he is the first man in the county, and superior in rank to any nobleman therein, during his office[p]. he may apprehend, and commit to prison, all persons who break the peace, or attempt to break it: and may bind any one in a recognizance to keep the king's peace. he may, and is bound _ex officio_ to, pursue and take all traitors, murderers, felons, and other misdoers, and commit them to gaol for safe custody. he is also to defend his county against any of the king's enemies when they come into the land: and for this purpose, as well as for keeping the peace and pursuing felons, he may command all the people of his county to attend him; which is called the _posse comitatus_, or power of the county[q]: which summons every person above fifteen years old, and under the degree of a peer, is bound to attend upon warning[r], under pain of fine and imprisonment[s]. but though the sheriff is thus the principal conservator of the peace in his county, yet, by the express directions of the great charter[t], he, together with the constable, coroner, and certain other officers of the king, are forbidden to hold any pleas of the crown, or, in other words, to try any criminal offence. for it would be highly unbecoming, that the executioners of justice should be also the judges; should impose, as well as levy, fines and amercements; should one day condemn a man to death, and personally execute him the next. neither may he act as an ordinary justice of the peace during the time of his office[u]: for this would be equally inconsistent; he being in many respects the servant of the justices. [footnote p: roll. rep. .] [footnote q: dalt. c. .] [footnote r: lamb. eiren. .] [footnote s: stat. hen. v. c. .] [footnote t: _cap._ .] [footnote u: stat. mar. st. . c. .] in his ministerial capacity the sheriff is bound to execute all process issuing from the king's courts of justice. in the commencement of civil causes, he is to serve the writ, to arrest, and to take bail; when the cause comes to trial, he must summon and return the jury; when it is determined, he must see the judgment of the court carried into execution. in criminal matters, he also arrests and imprisons, he returns the jury, he has the custody of the delinquent, and he executes the sentence of the court, though it extend to death itself. as the king's bailiff, it is his business to preserve the rights of the king within his bailiwick; for so his county is frequently called in the writs: a word introduced by the princes of the norman line; in imitation of the french, whose territory is divided into bailiwicks, as that of england into counties[w]. he must seise to the king's use all lands devolved to the crown by attainder or escheat; must levy all fines and forfeitures; must seise and keep all waifs, wrecks, estrays, and the like, unless they be granted to some subject; and must also collect the king's rents within his bailiwick, if commanded by process from the exchequer[x]. [footnote w: fortesc. _de l.l._ c. .] [footnote x: dalt. c. .] to execute these various offices, the sheriff has under him many inferior officers; an under-sheriff, bailiffs, and gaolers; who must neither buy, sell, nor farm their offices, on forfeiture of _l._[y] [footnote y: stat. geo. i. c. .] the under-sheriff usually performs all the duties of the office; a very few only excepted, where the personal presence of the high-sheriff is necessary. but no under-sheriff shall abide in his office above one year[z]; and if he does, by statute hen. vi. c. . he forfeits _l._ a very large penalty in those early days. and no under-sheriff or sheriff's officer shall practice as an attorney, during the time he continues in such office[a]: for this would be a great inlet to partiality and oppression. but these salutary regulations are shamefully evaded, by practising in the names of other attorneys, and putting in sham deputies by way of nominal under-sheriffs: by reason of which, says dalton[b], the under-sheriffs and bailiffs do grow so cunning in their several places, that they are able to deceive, and it may be well feared that many of them do deceive, both the king, the high-sheriff, and the county. [footnote z: stat. edw. iii. c. .] [footnote a: stat. hen. v. c. .] [footnote b: of sheriffs, c. .] bailiffs, or sheriff's officers, are either bailiffs of hundreds, or special bailiffs. bailiffs of hundreds are officers appointed over those respective districts by the sheriffs, to collect fines therein; to summon juries; to attend the judges and justices at the assises, and quarter sessions; and also to execute writs and process in the several hundreds. but, as these are generally plain men, and not thoroughly skilful in this latter part of their office, that of serving writs, and making arrests and executions, it is now usual to join special bailiffs with them; who are generally mean persons employed by the sheriffs on account only of their adroitness and dexterity in hunting and seising their prey. the sheriff being answerable for the misdemesnors of these bailiffs, they are therefore usually bound in a bond for the due execution of their office, and thence are called bound-bailiffs; which the common people have corrupted into a much more homely appellation. gaolers are also the servants of the sheriff, and he must be responsible for their conduct. their business is to keep safely all such persons as are committed to them by lawful warrant: and, if they suffer any such to escape, the sheriff shall answer it to the king, if it be a criminal matter; or, in a civil case, to the party injured[c]. and to this end the sheriff must[d] have lands sufficient within the county to answer the king and his people. the abuses of goalers and sheriff's officers toward the unfortunate persons in their custody are well restrained and guarded against by statute geo. ii. c. . [footnote c: dalt. c. . rep. .] [footnote d: stat. & car. ii. c. .] the vast expense, which custom had introduced in serving the office of high-sheriff, was grown such a burthen to the subject, that it was enacted, by statute & car. ii. c. . that no sheriff should keep any table at the assises, except for his own family, or give any presents to the judges or their servants, or have more than forty men in livery; yet, for the sake of safety and decency, he may not have less than twenty men in england and twelve in wales; upon forfeiture, in any of these cases, of _l._ ii. the coroner's is also a very antient office at the common law. he is called coroner, _coronator_, because he hath principally to do with pleas of the crown, or such wherein the king is more immediately concerned[e]. and in this light the lord chief justice of the king's bench is the principal coroner in the kingdom, and may (if he pleases) exercise the jurisdiction of a coroner in any part of the realm[f]. but there are also particular coroners for every county of england; usually four, but sometimes six, and sometimes fewer[g]. this officer[h] is of equal antiquity with the sheriff; and was ordained together with him to keep the peace, when the earls gave up the wardship of the county. [footnote e: inst. . inst. .] [footnote f: rep. .] [footnote g: f.n.b. .] [footnote h: mirror, c. . §. .] he is still chosen by all the freeholders in the county court, as by the policy of our antient laws the sheriffs, and conservators of the peace, and all other officers were, who were concerned in matters that affected the liberty of the people[i]; and as verderors of the forests still are, whose business it is to stand between the prerogative and the subject in the execution of the forest laws. for this purpose there is a writ at common law _de coronatore eligendo_[k]: in which it is expressly commanded the sheriff, "_quod talem eligi faciat, qui melius et sciat, et velit, et possit, officio illi intendere_." and, in order to effect this the more surely, it was enacted by the statute of westm. i[l], that none but lawful and discreet knights should be chosen. but it seems it is now sufficient if a man have lands enough to be made a knight, whether he be really knighted or not[m]: and there was an instance in the edw. iii. of a man being removed from this office, because he was only a merchant[n]. the coroner ought also to have estate sufficient to maintain the dignity of his office, and answer any fines that may be set upon him for his misbehaviour[o]: and if he have not enough to answer, his fine shall be levyed on the county, as a punishment for electing an insufficient officer[p]. now indeed, through the culpable neglect of gentlemen of property, this office has been suffered to fall into disrepute, and get into low and indigent hands: so that, although formerly no coroner would condescend to be paid for serving his country, and they were by the aforesaid statute of westm. i. expressly forbidden to take a reward, under pain of great forfeiture to the king; yet for many years past they have only desired to be chosen for the sake of their perquisites; being allowed fees for their attendance by the statute hen. vii. c. . which sir edward coke complains of heavily[q]; though they have since his time been much enlarged[r]. [footnote i: inst. .] [footnote k: f.n.b. .] [footnote l: edw. i. c. .] [footnote m: f.n.b. , .] [footnote n: inst. .] [footnote o: f.n.b. , .] [footnote p: mirr. c. . §. . inst. .] [footnote q: inst. .] [footnote r: stat. geo. ii. c. .] the coroner is chosen for life: but may be removed, either by being made sheriff, or chosen verderor, which are offices incompatible with the other; or by the king's writ _de coronatore exonerando_, for a cause to be therein assigned, as that he is engaged in other business, is incapacitated by years or sickness, hath not a sufficient estate in the county, or lives in an inconvenient part of it[s]. and by the statute geo. ii. c. . extortion, neglect, or misbehaviour, are also made causes of removal. [footnote s: f.n.b. , .] the office and power of a coroner are also, like those of a sheriff, either judicial or ministerial; but principally judicial. this is in great measure ascertained by statute edw. i. _de officio coronatoris_; and consists, first, in enquiring (when any person is slain or dies suddenly) concerning the manner of his death. and this must be "_super visum corporis_[t];" for, if the body be not found, the coroner cannot sit[u]. he must also sit at the very place where the death happened; and his enquiry is made by a jury from four, five, or six of the neighbouring towns, over whom he is to preside. if any be found guilty by this inquest of murder, he is to commit to prison for further trial, and is also to enquire concerning their lands, goods and chattels, which are forfeited thereby: but, whether it be murder or not, he must enquire whether any deodand has accrued to the king, or the lord of the franchise, by this death: and must certify the whole of this inquisition to the court of king's bench, or the next assises. another branch of his office is to enquire concerning shipwrecks; and certify whether wreck or not, and who is in possession of the goods. concerning treasure trove, he is also to enquire who were the finders, and where it is, and whether any one be suspected of having found and concealed a treasure; "and that may be well perceived (saith the old statute of edw. i.) where one liveth riotously, haunting taverns, and hath done so of long time:" whereupon he might be attached, and held to bail, upon this suspicion only. [footnote t: inst. .] [footnote u: thus, in the gothic constitution, before any fine was payable by the neighbourhood, for the slaughter of a man therein, "_de corpore delicti constare oportebat; i.e. non tam fuisse aliquem in territorio isto mortuum inventum, quam vulneratum et caesum. potest enim homo etiam ex alia causa subito mori_." stiernhook _de jure gothor._ _l._ . _c._ .] the ministerial office of the coroner is only as the sheriff's substitute. for when just exception can be taken to the sheriff, for suspicion of partiality, (as that he is interested in the suit, or of kindred to either plaintiff or defendant) the process must then be awarded to the coroner, instead of the sheriff, for execution of the king's writs[w]. [footnote w: inst. .] iii. the next species of subordinate magistrates, whom i am to consider, are justices of the peace; the principal of whom is the _custos rotulorum_, or keeper of the records of the county. the common law hath ever had a special care and regard for the conservation of the peace; for peace is the very end and foundation of civil society. and therefore, before the present constitution of justices was invented, there were peculiar officers appointed by the common law for the maintenance of the public peace. of these some had, and still have, this power annexed to other offices which they hold; others had it merely by itself, and were thence named _custodes_ or _conservatores pacis_. those that were so _virtute officii_ still continue; but the latter sort are superseded by the modern justices. the kings majesty[x] is, by his office and dignity royal, the principal conservator of the peace within all his dominions; and may give authority to any other to see the peace kept, and to punish such as break it: hence it is usually called the king's peace. the lord chancellor or keeper, the lord treasurer, the lord high steward of england, the lord mareschal, and lord high constable of england (when any such officers are in being) and all the justices of the court of king's bench (by virtue of their offices) and the master of the rolls (by prescription) are general conservators of the peace throughout the whole kingdom, and may commit all breakers of it, or bind them in recognizances to keep it[y]: the other judges are only so in their own courts. the coroner is also a conservator of the peace within his own county[z]; as is also the sheriff[a]; and both of them may take a recognizance or security for the peace. constables, tythingmen, and the like, are also conservators of the peace within their own jurisdictions; and may apprehend all breakers of the peace, and commit them till they find sureties for their keeping it[b]. [footnote x: lambard. eirenarch. .] [footnote y: lamb. .] [footnote z: britton. .] [footnote a: f.n.b. .] [footnote b: lamb. .] those that were, without any office, simply and merely conservators of the peace, were chosen by the freeholders in full county court before the sheriff; the writ for their election directing them to be chosen "_de probioribus et melioribus in comitatu suo in custodes pacis_[c]." but when queen isabel, the wife of edward ii, had contrived to depose her husband by a forced resignation of the crown, and had set up his son edward iii in his place; this, being a thing then without example in england, it was feared would much alarm the people; especially as the old king was living, though hurried about from castle to castle; till at last he met with an untimely death. to prevent therefore any risings, or other disturbance of the peace, the new king sent writs to all the sheriffs in england, the form of which is preserved by thomas walsingham[d], giving a plausible account of the manner of his obtaining the crown; to wit, that it was done _ipsius patris beneplacito_: and withal commanding each sheriff that the peace be kept throughout his bailiwick, on pain and peril of disinheritance and loss of life and limb. and in a few weeks after the date of these writs, it was ordained in parliament[e], that, for the better maintaining and keeping of the peace in every county, good men and lawful, which were no maintainers of evil, or barretors in the country, should be _assigned_ to keep the peace. and in this manner, and upon this occasion, was the election of the conservators of the peace taken from the people, and given to the king[f]; this assignment being construed to be by the king's commission[g]. but still they were called only conservators, wardens, or keepers of the peace, till the statute edw. iii. c. . gave them the power of trying felonies; and then they acquired the more honorable appellation of justices[h]. [footnote c: lamb. .] [footnote d: hist. _a.d._ .] [footnote e: stat. edw. iii. c. .] [footnote f: lamb. .] [footnote g: stat. edw. iii. c. . and edw. iii. st. . c. .] [footnote h: lamb. .] these justices are appointed by the king's special commission under the great seal, the form of which was settled by all the judges, _a.d._ [i]. this appoints them all[k], jointly and severally, to keep the peace, and any two or more of them to enquire of and determine felonies, and other misdemesnors: in which number some particular justices, or one of them, are directed to be always included, and no business to be done without their presence; the words of the commission running thus, "_quorum aliquem vestrum, a. b. c. d. &c. unum esse volumus_;" whence the persons so named are usually called justices of the _quorum_. and formerly it was customary to appoint only a select number of justices, eminent for their skill and discretion, to be of the _quorum_; but now the practice is to advance almost all of them to that dignity, naming them all over again in the _quorum_ clause, except perhaps only some one inconsiderable person for the sake of propriety: and no exception is now allowable, for not expressing in the form of warrants, &c, that the justice who issued them is of the _quorum_[l]. [footnote i: lamb. .] [footnote k: see the form itself, lamb. . burn. tit. justices, §. .] [footnote l: stat. geo. ii. c. .] touching the number and qualifications of these justices; it was ordained by statute edw. iii. c. . that _two_, or _three_, of the best reputation in each county shall be assigned to be keepers of the peace. but these being found rather too few for that purpose, it was provided by statute edw. iii. c. . that one lord, and three, or four, of the most worthy men in the county, with some learned in the law, shall be made justices in every county. but afterwards the number of justices, through the ambition of private persons, became so large, that it was thought necessary by statute ric. ii. c. . and ric ii. c. . to restrain them at first to six, and afterwards to eight only. but this rule is now disregarded, and the cause seems to be (as lambard observed long ago[m]) that the growing number of statute laws, committed from time to time to the charge of justices of the peace, have occasioned also (and very reasonably) their encrease to a larger number. and, as to their qualifications, the statutes just cited direct them to be of the best reputation, and most worthy men in the county: and the statute ric. ii. c. . orders them to be of the most sufficient knights, esquires, and gentlemen of the law. also by statute hen. v. st. . c. . and st. . c. . they must be resident in their several counties. and because, contrary to these statutes, men of small substance had crept into the commission, whose poverty made them both covetous and contemptible, it was enacted by statute hen. vi. c. . that no justice should be put in commission, if he had not lands to the value of _l._ _per annum_. and, the rate of money being greatly altered since that time, it is now enacted by statute geo. ii. c. . that every justice, except as is therein excepted, shall have _l._ _per annum_ clear of all deductions; and, if he acts without such qualification, he shall forfeit _l._ which[n] is almost an equivalent to the _l._ _per annum_ required in henry the sixth's time: and of this qualification[o] the justice must now make oath. also it is provided by the act geo. ii. that no practising attorney, solicitor, or proctor, shall be capable of acting as a justice of the peace. [footnote m: lamb. .] [footnote n: see bishop fleetwood's calculations in his _chronicon pretiosum_.] [footnote o: stat. geo. ii. c. .] as the office of these justices is conferred by the king, so it subsists only during his pleasure; and is determinable, . by the demise of the crown; that is, in six months after[p]. . by express writ under the great seal[q], discharging any particular person, from being any longer justice. . by superseding the commission by writ of _supersedeas_, which suspends the power of all the justices, but does not totally destroy it; seeing it may be revived again by another writ, called a _procedendo_. . by a new commission, which virtually, though silently, discharges all the former justices that are not included therein; for two commissions cannot subsist at once. . by accession of the office of sheriff or coroner[r]. formerly it was thought, that if a man was named in any commission of the peace, and had afterwards a new dignity conferred upon him, that this determined his office; he no longer answering the description of the commission: but now[s] it is provided, that notwithstanding a new title of dignity, the justice on whom it is conferred shall still continue a justice. [footnote p: stat. ann. c. .] [footnote q: lamb. .] [footnote r: stat. mar. st. . c. .] [footnote s: stat. edw. vi. c. .] the power, office, and duty of a justice of the peace depend on his commission, and on the several statutes, which have created objects of his jurisdiction. his commission, first, empowers him singly to conserve the peace; and thereby gives him all the power of the antient conservators at the common law, in suppressing riots and affrays, in taking securities for the peace, and in apprehending and committing felons and other inferior criminals. it also empowers any two or more of them to hear and determine all felonies and other offences; which is the ground of their jurisdiction at sessions, of which more will be said in it's proper place. and as to the powers given to one, two, or more justices by the several statutes, that from time to time have heaped upon them such an infinite variety of business, that few care to undertake, and fewer understand, the office; they are such and of so great importance to the public, that the country is greatly obliged to any worthy magistrate, that without sinister views of his own will engage in this troublesome service. and therefore, if a well meaning justice makes any undesigned slip in his practice, great lenity and indulgence is shewn to him in the courts of law; and there are many statutes made to protect him in the upright discharge of his office[t]: which, among other privileges, prohibit such justices from being sued for any oversights without notice beforehand; and stop all suits begun, on tender made of sufficient amends. but, on the other hand, any malicious or tyrannical abuse of their office is sure to be severely punished; and all persons who recover a verdict against a justice, for any wilful or malicious injury, are entitled to double costs. [footnote t: stat. jac. i. c. . jac. i. c. . geo. ii. c. .] it is impossible upon our present plan to enter minutely into the particulars of the accumulated authority, thus committed to the charge of these magistrates. i must therefore refer myself at present to such subsequent parts of these commentaries, as will in their turns comprize almost every object of the justices' jurisdiction: and in the mean time recommend to the student the perusal of mr lambard's _eirenarcha_, and dr burn's _justice of the peace_; wherein he will find every thing relative to this subject, both in antient and modern practice, collected with great care and accuracy, and disposed in a most clear and judicious method. i shall next consider some officers of lower rank than those which have gone before, and of more confined jurisdiction; but still such as are universally in use through every part of the kingdom. iv. fourthly, then, of the constable. the word constable is frequently said to be derived from the saxon, koning-staple, and to signify the support of the king. but, as we borrowed the name as well as the office of constable from the french, i am rather inclined to deduce it, with sir h. spelman and dr cowel, from that language, wherein it is plainly derived from the latin _comes stabuli_, an officer well known in the empire; so called because, like the great constable of france, as well as the lord high constable of england, he was to regulate all matters of chivalry, tilts, turnaments, and feats of arms, which were performed on horseback. this great office of lord high constable hath been disused in england, except only upon great and solemn occasions, as the king's coronation and the like, ever since the attainder of stafford duke of buckingham under king henry viii; as in france it was suppressed about a century after by an edict of louis xiii[u]: but from his office, says lambard[w], this lower constableship was at first drawn and fetched, and is as it were a very finger of that hand. for the statute of winchester[x], which first appoints them, directs that, for the better keeping of the peace, two constables in every hundred and franchise shall inspect all matters relating to _arms_ and _armour_. [footnote u: philips's life of pole. ii. .] [footnote w: of constables, .] [footnote x: edw. i. c. .] constables are of two sorts, high constables, and petty constables. the former were first ordained by the statute of winchester, as before-mentioned; and are appointed at the court leets of the franchise or hundred over which they preside, or, in default of that, by the justices at their quarter sessions; and are removeable by the same authority that appoints them[y]. the petty constables are inferior officers in every town and parish, subordinate to the high constable of the hundred, first instituted about the reign of edward iii[z]. these petty constables have two offices united in them; the one antient, the other modern. their antient office is that of headborough, tithing-man, or borsholder; of whom we formerly spoke[a], and who are as antient as the time of king alfred: their more modern office is that of constable merely; which was appointed (as was observed) so lately as the reign of edward iii, in order to assist the high constable[b]. and in general the antient headboroughs, tithing-men, and borsholders, were made use of to serve as petty constables; though not so generally, but that in many places they still continue distinct officers from the constable. they are all chosen by the jury at the court leet; or, if no court leet be held, are appointed by two justices of the peace[c]. [footnote y: salk. .] [footnote z: spelm. gloss. .] [footnote a: pag. .] [footnote b: lamb. .] [footnote c: stat. & car. ii. c. .] the general duty of all constables, both high and petty, as well as of the other officers, is to keep the king's peace in their several districts; and to that purpose they are armed with very large powers, of arresting, and imprisoning, of breaking open houses, and the like: of the extent of which powers, considering what manner of men are for the most part put upon these offices, it is perhaps very well that they are generally kept in ignorance. one of their principal duties, arising from the statute of winchester, which appoints them, is to keep watch and ward in their respective jurisdictions. ward, guard, or _custodia_, is chiefly intended of the day time, in order to apprehend rioters, and robbers on the highways; the manner of doing which is left to the discretion of the justices of the peace and the constable[d], the hundred being however answerable for all robberies committed therein, by day light, for having kept negligent guard. watch is properly applicable to the night only, (being called among our teutonic ancestors _wacht_ or _wacta_[e]) and it begins at the time when ward ends, and ends when that begins; for, by the statute of winchester, in walled towns the gates shall be closed from sunsetting to sunrising, and watch shall be kept in every borough and town, especially in the summer season, to apprehend all rogues, vagabonds, and night-walkers, and make them give an account of themselves. the constable may appoint watchmen at his discretion, regulated by the custom of the place; and these, being his deputies, have for the time being the authority of their principal. but, with regard to the infinite number of other minute duties, that are laid upon constables by a diversity of statutes, i must again refer to mr lambard and dr burn; in whose compilations may be also seen, what duties belong to the constable or tything-man indifferently, and what to the constable only: for the constable may do whatever the tything-man may; but it does not hold _e converso_; for the tithing-man has not an equal power with the constable. [footnote d: dalt. just. c. .] [footnote e: _excubias et explorationes quas wactas vocant._ _capitular. hludovic. pii._ _cap._ . _a.d._ .] v. we are next to consider the surveyors of the highways. every parish is bound of common right to keep the high roads, that go through it, in good and sufficient repair; unless by reason of the tenure of lands, or otherwise, this care is consigned to some particular private person. from this burthen no man was exempt by our antient laws, whatever other immunities he might enjoy: this being part of the _trinoda necessitas_, to which every man's estate was subject; viz. _expeditio contra hostem, arcium constructio, et pontium reparatio_: for, though the reparation of bridges only is expressed, yet that of roads also must be understood; as in the roman law, _ad instructiones reparationesque itinerum et pontium, nullum genus hominum, nulliusque dignitatis ac venerationis meritis, cessare oportet_[f]. and indeed now, for the most part, the care of the roads only seems to be left to parishes; that of bridges being in great measure devolved upon the county at large, by statute hen. viii. c. . if the parish neglected these repairs, they might formerly, as they may still, be indicted for such their neglect: but it was not then incumbent on any particular officer to call the parish together, and set them upon this work; for which reason by the statute & ph. & m. c. . surveyors of the highways were ordered to be chosen in every parish[g]. [footnote f: _c._ . . .] [footnote g: this office, mr dalton (just. cap. .) says, exactly answers that of the _curatores viarum_ of the romans: but, i should guess that theirs was an office of rather more dignity and authority than ours, not only from comparing the method of making and mending the roman ways with those of our country parishes; but also because one thermus, who was the curator of the flaminian way, was candidate for the consulship with julius caesar. (_cic. ad attic._ _l._ . _ep._ .)] these surveyors were originally, according to the statute of philip and mary, to be appointed by the constable and churchwardens of the parish; but now[h] they are constituted by two neighbouring justices, out of such substantial inhabitants as have either _l._ _per annum_ of their own, or rent _l._ a year, or are worth in personal estate _l._ [footnote h: stat. w. & m. c. .] their office and duty consists in putting in execution a variety of statutes for the repairs of the highways; that is, of ways leading from one town to another: by which it is enacted, . that they may remove all annoyances in the highways, or give notice to the owner to remove them; who is liable to penalties on noncompliance. . they are to call together all the inhabitants of the parish, six days in every year, to labour in repairing the highways; all persons keeping draughts, or occupying lands, being obliged to send a team for every draught, and for every _l._ a year, which they keep or occupy; and all other persons to work or find a labourer. the work must be completed before harvest; as well for providing a good road for carrying in the corn, as also because all hands are then supposed to be employed in harvest work. and every cartway must be made eight feet wide at the least[i]; and may be increased by the quarter sessions to the breadth of four and twenty feet. . the surveyors may lay out their own money in purchasing materials for repairs, where there is not sufficient within the parish, and shall be reimbursed by a rate, to be allowed at a special sessions. . in case the personal labour of the parish be not sufficient, the surveyors, with the consent of the quarter sessions, may levy a rate (not exceeding _d._ in the pound) on the parish, in aid of the personal duty; for the due application of which they are to account upon oath. as for turnpikes, which are now universally introduced in aid of such rates, and the law relating to them, these depend entirely on the particular powers granted in the several road acts, and therefore have nothing to do with this compendium of general law. [footnote i: this, by the laws of the twelve tables at rome, was the standard for roads that were straight; but, in winding ways, the breadth was directed to be sixteen feet. _ff._ . . .] vi. i proceed therefore, lastly, to consider the overseers of the poor; their original, appointment, and duty. the poor of england, till the time of henry viii, subsisted entirely upon private benevolence, and the charity of welldisposed christians. for, though it appears by the mirrour[k], that by the common law the poor were to be "sustained by parsons, rectors of the church, and the parishioners; so that none of them dye for default of sustenance;" and though by the statutes ric. ii. c. . and hen. vii. c. . the poor are directed to be sustained in the cities or towns wherein they were born, or such wherein they had dwelt for three years (which seem to be the first rudiments of parish settlements) yet till the statute hen. viii. c. . i find no compulsory method chalked out for this purpose: but the poor seem to have been left to such relief as the humanity of their neighbours would afford them. the monasteries were, in particular, their principal resource; and, among other bad effects which attended the monastic institutions, it was not perhaps one of the least (though frequently esteemed quite otherwise) that they supported and fed a very numerous and very idle poor, whose sustenance depended upon what was daily distributed in alms at the gates of the religious houses. but, upon the total dissolution of these, the inconvenience of thus encouraging the poor in habits of indolence and beggary was quickly felt throughout the kingdom: and abundance of statutes were made in the reign of king henry the eighth, for providing for the poor and impotent; which, the preambles to some of them recite, had of late years _strangely_ increased. these poor were principally of two sorts: sick and impotent, and therefore unable to work; idle and sturdy, and therefore able, but not willing, to exercise any honest employment. to provide in some measure for both of these, in and about the metropolis, his son edward the sixth founded three royal hospitals; christ's, and st. thomas's, for the relief of the impotent through infancy or sickness; and bridewell for the punishment and employment of the vigorous and idle. but these were far from being sufficient for the care of the poor throughout the kingdom at large; and therefore, after many other fruitless experiments, by statute eliz. c. . overseers of the poor were appointed in every parish. [footnote k: c. . §. .] by virtue of the statute last mentioned, these overseers are to be nominated yearly in easter-week, or within one month after, by two justices dwelling near the parish. they must be substantial householders, and so expressed to be in the appointment of the justices[l]. [footnote l: lord raym. .] their office and duty, according to the same statute, are principally these: first, to raise competent sums for the necessary relief of the poor, impotent, old, blind, and such other, being poor and not able to work: and, secondly, to provide work for such as are able, and cannot otherwise get employment: but this latter part of their duty, which, according to the wise regulations of that salutary statute, should go hand in hand with the other, is now most shamefully neglected. however, for these joint purposes, they are empowered to make and levy rates upon the several inhabitants of the parish, by the same act of parliament; which has been farther explained and enforced by several subsequent statutes. the two great objects of this statute seem to have been, . to relieve the impotent poor, and them only. . to find employment for such as are able to work: and this principally by providing stocks to be worked up at home, which perhaps might be more beneficial than accumulating all the poor in one common work-house; a practice which tends to destroy all domestic connexions (the only felicity of the honest and industrious labourer) and to put the sober and diligent upon a level, in point of their earnings, with those who are dissolute and idle. whereas, if none were to be relieved but those who are incapable to get their livings, and that in proportion to their incapacity; if no children were to be removed from their parents, but such as are brought up in rags and idleness; and if every poor man and his family were employed whenever they requested it, and were allowed the whole profits of their labour;--a spirit of chearful industry would soon diffuse itself through every cottage; work would become easy and habitual, when absolutely necessary to their daily subsistence; and the most indigent peasant would go through his task without a murmur, if assured that he and his children (when incapable of work through infancy, age, or infirmity) would then, and then only, be intitled to support from his opulent neighbours. this appears to have been the plan of the statute of queen elizabeth; in which the only defect was confining the management of the poor to small, parochial, districts; which are frequently incapable of furnishing proper work, or providing an able director. however, the laborious poor were then at liberty to seek employment wherever it was to be had; none being obliged to reside in the places of their settlement, but such as were unable or unwilling to work; and those places of settlement being only such where they were born, or had made their abode, originally for three years[m], and afterwards (in the case of vagabonds) for one year only[n]. [footnote m: stat. hen. vii. c. . edw. vi. c. . edw. vi. c. . eliz. c. .] [footnote n: stat. eliz. c. .] after the restoration, a very different plan was adopted, which has rendered the employment of the poor more difficult, by authorizing the subdivision of parishes; has greatly increased their number, by confining them all to their respective districts; has given birth to the intricacy of our poor-laws, by multiplying and rendering more easy the methods of gaining settlements; and, in consequence, has created an infinity of expensive lawsuits between contending neighbourhoods, concerning those settlements and removals. by the statute & car. ii. c. . a legal settlement was declared to be gained by birth, inhabitancy, apprenticeship, or service for forty days; within which period all intruders were made removeable from any parish by two justices of the peace, unless they settled in a tenement of the annual value of _l._ the frauds, naturally consequent upon this provision, which gave a settlement by so short a residence, produced the statute jac. ii. c. . which directed notice in writing to be delivered to the parish officers, before a settlement could be gained by such residence. subsequent provisions allowed other circumstances of notoriety to be equivalent to such notice given; and those circumstances have from time to time been altered, enlarged, or restrained, whenever the experience of new inconveniences, arising daily from new regulations, suggested the necessity of a remedy. and the doctrine of certificates was invented, by way of counterpoise, to restrain a man and his family from acquiring a new settlement by any length of residence whatever, unless in two particular excepted cases; which makes parishes very cautious of giving such certificates, and of course confines the poor at home, where frequently no adequate employment can be had. the law of settlements may be therefore now reduced to the following general heads; or, a settlement in a parish may be acquired, . by birth; which is always _prima facie_ the place of settlement, until some other can be shewn[o]. this is also always the place of settlement of a bastard child; for a bastard, having in the eye of the law no father, cannot be referred to _his_ settlement, as other children may[p]. but, in legitimate children, though the place of birth be _prima facie_ the settlement, yet it is not conclusively so; for there are, . settlements by parentage, being the settlement of one's father or mother: all children being really settled in the parish where their parents are settled, until they get a new settlement for themselves[q]. a new settlement may be acquired several ways; as, . by marriage. for a woman, marrying a man that is settled in another parish, changes her own: the law not permitting the separation of husband and wife[r]. but if the man be a foreigner, and has no settlement, her's is suspended during his life, if he be able to maintain her; but after his death she may return again to her old settlement[s]. the other methods of acquiring settlements in any parish are all reducible to this one, of forty days residence therein: but this forty days residence (which is construed to be lodging or lying there) must not be by fraud, or stealth, or in any clandestine manner; but accompanied with one or other of the following concomitant circumstances. the next method therefore of gaining a settlement, is, . by forty days residence, and notice. for if a stranger comes into a parish, and delivers notice in writing of his place of abode, and number of his family, to one of the overseers (which must be read in the church and registered) and resides there unmolested for forty days after such notice, he is legally settled thereby[t]. for the law presumes that such a one at the time of notice is not likely to become chargeable, else he would not venture to give it; or that, in such case, the parish would take care to remove him. but there are also other circumstances equivalent to such notice: therefore, . renting for a year a tenement of the yearly value of ten pounds, and residing forty days in the parish, gains a settlement without notice[u]; upon the principle of having substance enough to gain credit for such a house. . being charged to and paying the public taxes and levies of the parish; and, . executing any public parochial office for a whole year in the parish, as churchwarden, &c; are both of them equivalent to notice, and gain a settlement[w], when coupled with a residence of forty days. . being hired for a year, when unmarried, and serving a year in the same service; and . being bound an apprentice for seven years; give the servant and apprentice a settlement, without notice[x], in that place wherein they serve the last forty days. this is meant to encourage application to trades, and going out to reputable services. . lastly, the having an estate of one's own, and residing thereon forty days, however small the value may be, in case it be acquired by act of law or of a third person, as by descent, gift, devise, &c, is a sufficient settlement[y]: but if a man acquire it by his own act, as by purchase, (in it's popular sense, in consideration of money paid) then[z] unless the consideration advanced, _bona fide_, be _l._ it is no settlement for any longer time, than the person shall inhabit thereon. he is in no case removeable from his own property; but he shall not, by any trifling or fraudulent purchase of his own, acquire a permanent and lasting settlement. [footnote o: lord raym. .] [footnote p: salk. .] [footnote q: salk. . lord raym. .] [footnote r: stra. .] [footnote s: foley. .] [footnote t: stat. & car. ii c. . jac. ii. c. . & w. & m. c. .] [footnote u: stat. & car. ii. c. .] [footnote w: stat. & w. & m. c. .] [footnote x: stat. & w. & m. c. . & w. iii. c. . and geo. ii. c. .] [footnote y: salk. .] [footnote z: stat. geo. i. c. .] all persons, not so settled, may be removed to their own parishes, on complaint of the overseers, by two justices of the peace, if they shall adjudge them likely to become chargeable to the parish, into which they have intruded: unless they are in a way of getting a legal settlement, as by having hired a house of _l._ _per annum_, or living in an annual service; for then they are not removeable[a]. and in all other cases, if the parish to which they belong, will grant them a certificate, acknowleging them to be _their_ parishioners, they cannot be removed merely because _likely_ to become chargeable, but only when they become _actually_ chargeable[b]. but such certificated persons can gain no settlement by any of the means above-mentioned; unless by renting a tenement of _l._ _per annum_, or by serving an annual office in the parish, being legally placed therein: neither can an apprentice or servant to such certificated person gain a settlement by such their service[c]. [footnote a: salk. .] [footnote b: stat. & w. iii. c. .] [footnote c: stat. ann. c. .] these are the general heads of the laws relating to the poor, which, by the resolutions of the courts of justice thereon within a century past, are branched into a great variety. and yet, notwithstanding the pains that has been taken about them, they still remain very imperfect, and inadequate to the purposes they are designed for: a fate, that has generally attended most of our statute laws, where they have not the foundation of the common law to build on. when the shires, the hundreds, and the tithings, were kept in the same admirable order that they were disposed in by the great alfred, there were no persons idle, consequently none but the impotent that needed relief: and the statute of eliz. seems entirely founded on the same principle. but when this excellent scheme was neglected and departed from, we cannot but observe with concern, what miserable shifts and lame expedients have from time to time been adopted, in order to patch up the flaws occasioned by this neglect. there is not a more necessary or more certain maxim in the frame and constitution of society, than that every individual must contribute his share, in order to the well-being of the community: and surely they must be very deficient in sound policy, who suffer one half of a parish to continue idle, dissolute, and unemployed; and then form visionary schemes, and at length are amazed to find, that the industry of the other half is not able to maintain the whole. chapter the tenth. of the people, whether aliens, denizens, or natives. having, in the eight preceding chapters, treated of persons as they stand in the public relations of _magistrates_, i now proceed to consider such persons as fall under the denomination of the _people_. and herein all the inferior and subordinate magistrates, treated of in the last chapter, are included. the first and most obvious division of the people is into aliens and natural-born subjects. natural-born subjects are such as are born within the dominions of the crown of england, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it. allegiance is the tie, or _ligamen_, which binds the subject to the king, in return for that protection which the king affords the subject. the thing itself, or substantial part of it, is founded in reason and the nature of government; the name and the form are derived to us from our gothic ancestors. under the feodal system, every owner of lands held them in subjection to some superior or lord, from whom or whose ancestors the tenant or vasal had received them: and there was a mutual trust or confidence subsisting between the lord and vasal, that the lord should protect the vasal in the enjoyment of the territory he had granted him, and, on the other hand, that the vasal should be faithful to the lord and defend him against all his enemies. this obligation on the part of the vasal was called his _fidelitas_ or fealty; and an oath of fealty was required, by the feodal law, to be taken by all tenants to their landlord, which is couched in almost the same terms as our antient oath of allegiance[a]: except that in the usual oath of fealty there was frequently a saving or exception of the faith due to a superior lord by name, under whom the landlord himself was perhaps only a tenant or vasal. but when the acknowlegement was made to the absolute superior himself, who was vasal to no man, it was no longer called the oath of fealty, but the oath of allegiance; and therein the tenant swore to bear faith to his sovereign lord, in opposition to all men, without any saving or exception: "_contra omnes homines fidelitatem fecit_[b]." land held by this exalted species of fealty was called _feudum ligium_, a liege fee; the vasals _homines ligii_, or liege men; and the sovereign their _dominus ligius_, or liege lord. and when sovereign princes did homage to each other, for lands held under their respective sovereignties, a distinction was always made between _simple_ homage, which was only an acknowlegement of tenure[c]; and _liege_ homage, which included the fealty before-mentioned, and the services consequent upon it. thus when edward iii, in , did homage to philip vi of france, for his ducal dominions on that continent, it was warmly disputed of what species the homage was to be, whether _liege_ or _simple_ homage[d]. with us in england, it becoming a settled principle of tenure, that _all_ lands in the kingdom are holden of the king as their sovereign and lord paramount, no oath but that of fealty could ever be taken to inferior lords, and the oath of allegiance was necessarily confined to the person of the king alone. by an easy analogy the term of allegiance was soon brought to signify all other engagements, which are due from subjects to their prince, as well as those duties which were simply and merely territorial. and the oath of allegiance, as administred for upwards of six hundred years[e], contained a promise "to be true and faithful to the king and his heirs, and truth and faith to bear of life and limb and terrene honour, and not to know or hear of any ill or damage intended him, without defending him therefrom." upon which sir matthew hale[f] makes this remark; that it was short and plain, not entangled with long or intricate clauses or declarations, and yet is comprehensive of the whole duty from the subject to his sovereign. but, at the revolution, the terms of this oath being thought perhaps to favour too much the notion of non-resistance, the present form was introduced by the convention parliament, which is more general and indeterminate than the former; the subject only promising "that he will be faithful and bear _true_ allegiance to the king," without mentioning "his heirs," or specifying in the least wherein that allegiance consists. the oath of supremacy is principally calculated as a renuntiation of the pope's pretended authority: and the oath of abjuration, introduced in the reign of king william[g], very amply supplies the loose and general texture of the oath of allegiance; it recognizing the right of his majesty, derived under the act of settlement; engaging to support him to the utmost of the juror's power; promising to disclose all traiterous conspiracies against him; and expressly renouncing any claim of the pretender, by name, in as clear and explicit terms as the english language can furnish. this oath must be taken by all persons in any office, trust, or employment; and may be tendered by two justices of the peace to any person, whom they shall suspect of disaffection[h]. but the oath of allegiance may be tendered[i] to all persons above the age of twelve years, whether natives, denizens, or aliens, either in the court-leet of the manor, or in the sheriff's tourn, which is the court-leet of the county. [footnote a: _feud._ , , .] [footnote b: _feud._ .] [footnote c: rep. calvin's case. .] [footnote d: carte. . mod. un. hist. xxiii. .] [footnote e: mirror. _c._ . §. . fleta. . . britton. _c._ . rep. calvin's case. .] [footnote f: hal. p.c. .] [footnote g: stat. w. iii. c. .] [footnote h: stat. geo. i. c. .] [footnote i: inst. . hal. p.c. .] but, besides these express engagements, the law also holds that there is an implied, original, and virtual allegiance, owing from every subject to his sovereign, antecedently to any express promise; and although the subject never swore any faith or allegiance in form. for as the king, by the very descent of the crown, is fully invested with all the rights and bound to all the duties of sovereignty, before his coronation; so the subject is bound to his prince by an intrinsic allegiance, before the superinduction of those outward bonds of oath, homage, and fealty; which were only instituted to remind the subject of this his previous duty, and for the better securing it's performance[k]. the formal profession therefore, or oath of subjection, is nothing more than a declaration in words of what was before implied in law. which occasions sir edward coke very justly to observe[l], that "all subjects are equally bounden to their allegiance, as if they had taken the oath; because it is written by the finger of the law in their hearts, and the taking of the corporal oath is but an outward declaration of the same." the sanction of an oath, it is true, in case of violation of duty, makes the guilt still more accumulated, by superadding perjury to treason; but it does not encrease the civil obligation to loyalty; it only strengthens the _social_ tie by uniting it with that of _religion_. [footnote k: hal. p.c. .] [footnote l: inst. .] allegiance, both express and implied, is however distinguished by the law into two sorts or species, the one natural, the other local; the former being also perpetual, the latter temporary. natural allegiance is such as is due from all men born within the king's dominions immediately upon their birth[m]. for, immediately upon their birth, they are under the king's protection; at a time too, when (during their infancy) they are incapable of protecting themselves. natural allegiance is therefore a debt of gratitude; which cannot be forfeited, cancelled, or altered, by any change of time, place, or circumstance, nor by any thing but the united concurrence of the legislature[n]. an englishman who removes to france, or to china, owes the same allegiance to the king of england there as at home, and twenty years hence as well as now. for it is a principle of universal law[o], that the natural-born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another, put off or discharge his natural allegiance to the former: for this natural allegiance was intrinsic, and primitive, and antecedent to the other; and cannot be devested without the concurrent act of that prince to whom it was first due. indeed the natural-born subject of one prince, to whom he owes allegiance, may be entangled by subjecting himself absolutely to another; but it is his own act that brings him into these straits and difficulties, of owing service to two masters; and it is unreasonable that, by such voluntary act of his own, he should be able at pleasure to unloose those bands, by which he is connected to his natural prince. [footnote m: rep. .] [footnote n: p. wms. .] [footnote o: hal. p.c. .] local allegiance is such as is due from an alien, or stranger born, for so long time as he continues within the king's dominion and protection[p]: and it ceases, the instant such stranger transfers himself from this kingdom to another. natural allegiance is therefore perpetual, and local temporary only: and that for this reason, evidently founded upon the nature of government; that allegiance is a debt due from the subject, upon an implied contract with the prince, that so long as the one affords protection, so long the other will demean himself faithfully. as therefore the prince is always under a constant tie to protect his natural-born subjects, at all times and in all countries, for this reason their allegiance due to him is equally universal and permanent. but, on the other hand, as the prince affords his protection to an alien, only during his residence in this realm, the allegiance of an alien is confined (in point of time) to the duration of such his residence, and (in point of locality) to the dominions of the british empire. from which considerations sir matthew hale[q] deduces this consequence, that, though there be an usurper of the crown, yet it is treason for any subject, while the usurper is in full possession of the sovereignty, to practice any thing against his crown and dignity: wherefore, although the true prince regain the sovereignty, yet such attempts against the usurper (unless in defence or aid of the rightful king) have been afterwards punished with death; because of the breach of that temporary allegiance, which was due to him as king _de facto_. and upon this footing, after edward iv recovered the crown, which had been long detained from his house by the line of lancaster, treasons committed against henry vi were capitally punished, though henry had been declared an usurper by parliament. [footnote p: rep. .] [footnote q: hal. p.c. .] this oath of allegiance, or rather the allegiance itself, is held to be applicable not only to the political capacity of the king, or regal office, but to his natural person, and blood-royal: and for the misapplication of their allegiance, viz. to the regal capacity or crown, exclusive of the person of the king, were the spencers banished in the reign of edward ii[r]. and from hence arose that principle of personal attachment, and affectionate loyalty, which induced our forefathers (and, if occasion required, would doubtless induce their sons) to hazard all that was dear to them, life, fortune, and family, in defence and support of their liege lord and sovereign. [footnote r: hal. p.c. .] this allegiance then, both express and implied, is the duty of all the king's subjects, under the distinctions here laid down, of local and temporary, or universal and perpetual. their rights are also distinguishable by the same criterions of time and locality; natural-born subjects having a great variety of rights, which they acquire by being born within the king's ligeance, and can never forfeit by any distance of place or time, but only by their own misbehaviour: the explanation of which rights is the principal subject of the two first books of these commentaries. the same is also in some degree the case of aliens; though their rights are much more circumscribed, being acquired only by residence here, and lost whenever they remove. i shall however here endeavour to chalk out some of the principal lines, whereby they are distinguished from natives, descending to farther particulars when they come in course. an alien born may purchase lands, or other estates: but not for his own use; for the king is thereupon entitled to them[s]. if an alien could acquire a permanent property in lands, he must owe an allegiance, equally permanent with that property, to the king of england; which would probably be inconsistent with that, which he owes to his own natural liege lord: besides that thereby the nation might in time be subject to foreign influence, and feel many other inconveniences. wherefore by the civil law such contracts were also made void[t]: but the prince had no such advantage of escheat thereby, as with us in england. among other reasons, which might be given for our constitution, it seems to be intended by way of punishment for the alien's presumption, in attempting to acquire any landed property: for the vendor is not affected by it, he having resigned his right, and received an equivalent in exchange. yet an alien may acquire a property in goods, money, and other personal estate, or may hire a house for his habitation[u]: for personal estate is of a transitory and moveable nature; and, besides, this indulgence to strangers is necessary for the advancement of trade. aliens also may trade as freely as other people; only they are subject to certain higher duties at the custom-house: and there are also some obsolete statutes of henry viii, prohibiting alien artificers to work for themselves in this kingdom; but it is generally held they were virtually repealed by statute eliz. c. . also an alien may bring an action concerning personal property, and may make a will, and dispose of his personal estate[w]: not as it is in france, where the king at the death of an alien is entitled to all he is worth, by the _droit d'aubaine_ or _jus albinatus_[x], unless he has a peculiar exemption. when i mention these rights of an alien, i must be understood of alien-friends only, or such whose countries are in peace with ours; for alien-enemies have no rights, no privileges, unless by the king's special favour, during the time of war. [footnote s: co. litt. .] [footnote t: _cod._ _l._ . _tit._ .] [footnote u: rep. .] [footnote w: lutw. .] [footnote x: the word is derived from _alibi natus_; spelm. gl. .] when i say, that an alien is one who is born out of the king's dominions, or allegiance, this also must be understood with some restrictions. the common law indeed stood absolutely so; with only a very few exceptions: so that a particular act of parliament became necessary after the restoration[y], for the naturalization of children of his majesty's english subjects, born in foreign countries during the late troubles. and this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once. yet the children of the king's embassadors born abroad were always held to be natural subjects[z]: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of _postliminium_) to be born under the king of england's allegiance, represented by his father, the embassador. to encourage also foreign commerce, it was enacted by statute edw. iii. st. . that all children born abroad, provided _both_ their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband's consent, might inherit as if born in england: and accordingly it hath been so adjudged in behalf of merchants[a]. but by several more modern statutes[b] these restrictions are still farther taken off: so that all children, born out of the king's ligeance, whose _fathers_ were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with great britain. [footnote y: stat. car. ii. c. .] [footnote z: rep. .] [footnote a: cro. car. . mar. . jenk. cent. .] [footnote b: ann. c. . and geo. ii. c. .] the children of aliens, born here in england, are, generally speaking, natural-born subjects, and entitled to all the privileges of such. in which the constitution of france differs from ours; for there, by their _jus albinatus_, if a child be born of foreign parents, it is an alien[c]. [footnote c: jenk. cent. . cites _treasure françois_, .] a denizen is an alien born, but who has obtained _ex donatione regis_ letters patent to make him an english subject: a high and incommunicable branch of the royal prerogative[d]. a denizen is in a kind of middle state between an alien, and natural-born subject, and partakes of both of them. he may take lands by purchase or devise, which an alien may not; but cannot take by inheritance[e]: for his parent, through whom he must claim, being an alien had no inheritable blood, and therefore could convey none to the son. and, upon a like defect of hereditary blood, the issue of a denizen, born _before_ denization, cannot inherit to him; but his issue born _after_, may[f]. a denizen is not excused[g] from paying the alien's duty, and some other mercantile burthens. and no denizen can be of the privy council, or either house of parliament, or have any office of trust, civil or military, or be capable of any grant from the crown[h]. [footnote d: rep. calvin's case. .] [footnote e: rep. .] [footnote f: co. litt. . vaugh. .] [footnote g: stat. hen. viii. c. .] [footnote h: stat. w. iii. c. .] naturalization cannot be performed but by act of parliament: for by this an alien is put in exactly the same state as if he had been born in the king's ligeance; except only that he is incapable, as well as a denizen, of being a member of the privy council, or parliament, &c[i]. no bill for naturalization can be received in either house of parliament, without such disabling clause in it[k]. neither can any person be naturalized or restored in blood, unless he hath received the sacrament of the lord's supper within one month before the bringing in of the bill; and unless he also takes the oaths of allegiance and supremacy in the presence of the parliament[l]. [footnote i: _ibid._] [footnote k: stat. geo. i. c. .] [footnote l: stat. jac. i. c. .] these are the principal distinctions between aliens, denizens, and natives: distinctions, which endeavors have been frequently used since the commencement of this century to lay almost totally aside, by one general naturalization-act for all foreign protestants. an attempt which was once carried into execution by the statute ann. c. . but this, after three years experience of it, was repealed by the statute ann. c. . except one clause, which was just now mentioned, for naturalizing the children of english parents born abroad. however, every foreign seaman who in time of war serves two years on board an english ship is _ipso facto_ naturalized[m]; and all foreign protestants, and jews, upon their residing seven years in any of the american colonies, without being absent above two months at a time, are upon taking the oaths naturalized to all intents and purposes, as if they had been born in this kingdom[n]; and therefore are admissible to all such privileges, and no other, as protestants or jews born in this kingdom are entitled to. what those privileges are[o], was the subject of very high debates about the time of the famous jew-bill[p]; which enabled all jews to prefer bills of naturalization in parliament, without receiving the sacrament, as ordained by statute jac. i. it is not my intention to revive this controversy again; for the act lived only a few months, and was then repealed[q]: therefore peace be now to it's _manes_. [footnote m: stat. geo. ii. c. .] [footnote n: stat. geo. ii. c. . geo. ii. c. . geo. iii. c. .] [footnote o: a pretty accurate account of the jews, till their banishment in edw. i. may be found in molloy _de jure maritimo_, b. . c. .] [footnote p: stat. geo. ii. c. .] [footnote q: stat. geo. ii. c. .] chapter the eleventh. of the clergy. the people, whether aliens, denizens, or natural-born subjects, are divisible into two kinds; the clergy and laity: the clergy, comprehending all persons in holy orders, and in ecclesiastical offices, will be the subject of the following chapter. this venerable body of men, being separate and set apart from the rest of the people, in order to attend the more closely to the service of almighty god, have thereupon large privileges allowed them by our municipal laws: and had formerly much greater, which were abridged at the time of the reformation, on account of the ill use which the popish clergy had endeavoured to make of them. for, the laws having exempted them from almost every personal duty, they attempted a total exemption from every secular tie. but it is observed by sir edward coke[a], that, as the overflowing of waters doth many times make the river to lose it's proper chanel, so in times past ecclesiastical persons, seeking to extend their liberties beyond their true bounds, either lost or enjoyed not those which of right belonged to them. the personal exemptions do indeed for the most part continue. a clergyman cannot be compelled to serve on a jury, nor to appear at a court-leet or view of frank pledge; which almost every other person is obliged to do[b]: but, if a layman is summoned on a jury, and before the trial takes orders, he shall notwithstanding appear and be sworn[c]. neither can he be chosen to any temporal office; as bailiff, reeve, constable, or the like: in regard of his own continual attendance on the sacred function[d]. during his attendance on divine service he is privileged from arrests in civil suits[e]. in cases also of felony, a clerk in orders shall have the benefit of his clergy, without being branded in the hand; and may likewise have it more than once: in both which particulars he is distinguished from a layman[f]. but as they have their privileges, so also they have their disabilities, on account of their spiritual avocations. clergymen, we have seen[g], are incapable of sitting in the house of commons; and by statute hen. viii. c. . are not allowed to take any lands or tenements to farm, upon pain of _l._ _per_ month, and total avoidance of the lease; nor shall engage in any manner of trade, nor sell any merchandize, under forfeiture of the treble value. which prohibition is consonant to the canon law. [footnote a: inst. .] [footnote b: f.n.b. . inst. .] [footnote c: leon. .] [footnote d: finch. l. .] [footnote e: stat. edw. iii. c. . ric. ii. c. .] [footnote f: inst. . stat. hen. vii. c. . & edw. vi. c. .] [footnote g: page .] in the frame and constitution of ecclesiastical polity there are divers ranks and degrees: which i shall consider in their respective order, merely as they are taken notice of by the secular laws of england; without intermeddling with the canons and constitutions, by which they have bound themselves. and under each division i shall consider, . the method of their appointment; . their rights and duties; and . the manner wherein their character or office may cease. i. an arch-bishop or bishop is elected by the chapter of his cathedral church, by virtue of a licence from the crown. election was, in very early times, the usual mode of elevation to the episcopal chair throughout all christendom; and this was promiscuously performed by the laity as well as the clergy[h]: till at length, it becoming tumultuous, the emperors and other sovereigns of the respective kingdoms of europe took the election in some degree into their own hands; by reserving to themselves the right of confirming these elections, and of granting investiture of the temporalties, which now began almost universally to be annexed to this spiritual dignity; without which confirmation and investiture, the elected bishop could neither be consecrated, nor receive any secular profits. this right was acknowleged in the emperor charlemagne, _a.d._ , by pope hadrian i, and the council of lateran[i], and universally exercised by other christian princes: but the policy of the court of rome at the same time began by degrees to exclude the laity from any share in these elections, and to confine them wholly to the clergy, which at length was completely effected; the mere form of election appearing to the people to be a thing of little consequence, while the crown was in possession of an absolute negative, which was almost equivalent to a direct right of nomination. hence the right of appointing to bishopricks is said to have been in the crown of england[k] (as well as other kingdoms in europe) even in the saxon times, because the rights of confirmation and investiture were in effect (though not in form) a right of complete donation[l]. but when, by length of time, the custom of making elections by the clergy only was fully established, the popes began to except to the usual method of granting these investitures, which was _per annulum et baculum_, by the prince's delivering to the prelate a ring, and a pastoral staff or crosier; pretending, that this was an encroachment on the church's authority, and an attempt by these symbols to confer a spiritual jurisdiction: and pope gregory vii, towards the close of the eleventh century, published a bulle of excommunication against all princes who should dare to confer investitures, and all prelates who should venture to receive them[m]. this was a bold step towards effecting the plan then adopted by the roman see, of rendering the clergy intirely independent of the civil authority: and long and eager were the contests occasioned by this dispute. but at length when the emperor henry v agreed to remove all suspicion of encroachment on the spiritual character, by conferring investitures for the future _per sceptrum_ and not _per annulum et baculum_; and when the kings of england and france consented also to alter the form in their kingdoms, and receive only homage from the bishops for their temporalties, instead of investing them by the ring and crosier; the court of rome found it prudent to suspend for a while it's other pretensions[n]. [footnote h: _per clerum et populum._ palm. . roll. rep. . m. paris. _a.d._ .] [footnote i: _decret._ . _dist._ . _c._ .] [footnote k: palm. .] [footnote l: "_nulla electio praelatorum (sunt verba ingulphi) erat mere libera et canonica; sed omnes dignitates tam episcoporum, quam abbatum, per annulum et baculum regis curia pro sua complacentia conferebat._" _penes clericos et monachos fuit electio, sed electum a rege postulabant._ selden. _jan. angl._ l. . §. .] [footnote m: _decret._ . _caus._ . _qu._ . _c._ & .] [footnote n: mod. un. hist. xxv. . xxix. .] this concession was obtained from king henry the first in england, by means of that obstinate and arrogant prelate, arch-bishop anselm[o]: but king john (about a century afterwards) in order to obtain the protection of the pope against his discontented barons, was prevailed upon to give up by a charter, to all the monasteries and cathedrals in the kingdom, the free right of electing their prelates, whether abbots or bishops: reserving only to the crown the custody of the temporalties during the vacancy; the form of granting a licence to elect, (which is the original of our _conge d'eslire_) on refusal whereof the electors might proceed without it; and the right of approbation afterwards, which was not to be denied without a reasonable and lawful cause[p]. this grant was expressly recognized and confirmed in king john's _magna carta_[q], and was again established by statute edw. iii. st. . §. . [footnote o: m. paris. _a.d._ .] [footnote p: m. paris. _a.d._ . rym. _foed._ .] [footnote q: _cap._ . _edit. oxon._ .] but by statute hen. viii. c. . the antient right of nomination was, in effect, restored to the crown: it being enacted that, at every future avoidance of a bishoprick, the king may send the dean and chapter his usual licence to proceed to election; which is always to be accompanied with a letter missive from the king, containing the name of the person whom he would have them elect: and, if the dean and chapter delay their election above twelve days, the nomination shall devolve to the king, who may by letters patent appoint such person as he pleases. this election or nomination, if it be of a bishop, must be signified by the king's letters patent to the arch-bishop of the province; if it be of an arch-bishop, to the other arch-bishop and two bishops, or to four bishops; requiring them to confirm, invest, and consecrate the person so elected: which they are bound to perform immediately, without any application to the see of rome. after which the bishop elect shall sue to the king for his temporalties, shall make oath to the king and none other, and shall take restitution of his secular possessions out of the king's hands only. and if such dean and chapter do not elect in the manner by this act appointed, or if such arch-bishop or bishop do refuse to confirm, invest, and consecrate such bishop elect, they shall incur all the penalties of a _praemunire_. an arch-bishop is the chief of the clergy in a whole province; and has the inspection of the bishops of that province, as well as of the inferior clergy, and may deprive them on notorious cause[r]. the arch-bishop has also his own diocese, wherein he exercises episcopal jurisdiction; as in his province he exercises archiepiscopal. as arch-bishop, he, upon receipt of the king's writ, calls the bishops and clergy of his province to meet in convocation: but without the king's writ he cannot assemble them[s]. to him all appeals are made from inferior jurisdictions within his province; and, as an appeal lies from the bishops in person to him in person, so it also lies from the consistory courts of each diocese to his archiepiscopal court. during the vacancy of any see in his province, he is guardian of the spiritualties thereof, as the king is of the temporalties; and he executes all ecclesiastical jurisdiction therein. if an archiepiscopal see be vacant, the dean and chapter are the spiritual guardians, ever since the office of prior of canterbury was abolished at the reformation[t]. the arch-bishop is entitled to present by lapse to all the ecclesiastical livings in the disposal of his diocesan bishops, if not filled within six months. and the arch-bishop has a customary prerogative, when a bishop is consecrated by him, to name a clerk or chaplain of his own to be provided for by such suffragan bishop; in lieu of which it is now usual for the bishop to make over by deed to the arch-bishop, his executors and assigns, the next presentation of such dignity or benefice in the bishop's disposal within that see, as the arch-bishop himself shall choose; which is therefore called his option[u]: which options are only binding on the bishop himself who grants them, and not his successors. the prerogative itself seems to be derived from the legatine power formerly annexed by the popes to the metropolitan of canterbury[w]. and we may add, that the papal claim itself (like most others of that encroaching see) was probably set up in imitation of the imperial prerogative called _primae_ or _primariae preces_; whereby the emperor exercises, and hath immemorially exercised[x], a right of naming to the first prebend that becomes vacant after his accession in every church of the empire[y]. a right, that was also exercised by the crown of england in the reign of edward i[z]; and which probably gave rise to the royal corodies, which were mentioned in a former chapter[a]. it is also the privilege, by custom, of the arch-bishop of canterbury, to crown the kings and queens of this kingdom. and he hath also by the statute hen. viii. c. . the power of granting dispensations in any case, not contrary to the holy scriptures and the law of god, where the pope used formerly to grant them: which is the foundation of his granting special licences, to marry at any place or time, to hold two livings, and the like: and on this also is founded the right he exercises of conferring degrees, in prejudice of the two universities[b]. [footnote r: lord raym. .] [footnote s: inst. , .] [footnote t: roll. abr. .] [footnote u: cowel's interpr. tit. option.] [footnote w: sherlock of options. .] [footnote x: goldast. _constit. imper._ _tom._ . _pag._ .] [footnote y: dufresne. v. . mod. un. hist. xxix. .] [footnote z: _rex, &c, salutem. scribatis episcopo karl. quod--roberto de icard pensionem suam, quam ad preces regis praedicto roberto concessit, de caetero solvat; et de proxima ecclesia vacatura de collatione praedicti episcopi, quam ipse robertus acceptaverit, respiciat._ _brev._ edw. i. pryn. .] [footnote a: ch. . pag. .] [footnote b: see the bishop of chester's case. oxon. .] the power and authority of a bishop, besides the administration of certain holy ordinances peculiar to that sacred order, consists principally in inspecting the manners of the people and clergy, and punishing them, in order to reformation, by ecclesiastical censures. to this purpose he has several courts under him, and may visit at pleasure every part of his diocese. his chancellor is appointed to hold his courts for him, and to assist him in matters of ecclesiastical law; who, as well as all other ecclesiastical officers, if lay or married, must be a doctor of the civil law, so created in some university[c]. it is also the business of a bishop to institute and to direct induction to all ecclesiastical livings in his diocese. [footnote c: stat. hen. viii. c. .] archbishopricks and bishopricks may become void by death, deprivation for any very gross and notorious crime, and also by resignation. all resignations must be made to some superior[d]. therefore a bishop must resign to his metropolitan; but the arch-bishop can resign to none but the king himself. [footnote d: gibs. cod. .] ii. a dean and chapter are the council of the bishop, to assist him with their advice in affairs of religion, and also in the temporal concerns of his see[e]. when the rest of the clergy were settled in the several parishes of each diocese (as hath formerly[f] been mentioned) these were reserved for the celebration of divine service in the bishop's own cathedral; and the chief of them, who presided over the rest, obtained the name of _decanus_ or dean, being probably at first appointed to superintend _ten_ canons or prebendaries. [footnote e: rep. . co. litt. , .] [footnote f: pag. , .] all antient deans are elected by the chapter, by _conge d'eslire_ from the king, and letters missive of recommendation; in the same manner as bishops: but in those chapters, that were founded by henry viii out of the spoils of the dissolved monasteries, the deanery is donative, and the installation merely by the king's letters patent[g]. the chapter, consisting of canons or prebendaries, are sometimes appointed by the king, sometimes by the bishop, and sometimes elected by each other. [footnote g: gibs. cod. .] the dean and chapter are, as was before observed, the nominal electors of a bishop. the bishop is their ordinary and immediate superior; and has, generally speaking, the power of visiting them, and correcting their excesses and enormities. they had also a check on the bishop at common law: for till the statute hen. viii. c. . his grant or lease would not have bound his successors, unless confirmed by the dean and chapter[h]. [footnote h: co. litt. .] deaneries and prebends may become void, like a bishoprick, by death, by deprivation, or by resignation to either the king or the bishop[j]. also i may here mention, once for all, that if a dean, prebendary, or other spiritual person be made a bishop, all the preferments he was before possessed of are void; and the king may present to them in right of his prerogative royal. but they are not void by the election, but only by the consecration[i]. [footnote j: plowd. .] [footnote i: roll. abr. . salk. . [transcriber's note: footnotes j and i are in this order in the original.]] iii. an arch-deacon hath an ecclesiastical jurisdiction, immediately subordinate to the bishop, throughout the whole of his diocese, or in some particular part of it. he is usually appointed by the bishop himself; and hath a kind of episcopal authority, originally derived from the bishop, but now independent and distinct from his[k]. he therefore visits the clergy; and has his separate court for punishment of offenders by spiritual censures, and for hearing all other causes of ecclesiastical cognizance. [footnote k: burn. eccl. law. , .] iv. the rural deans are very antient officers of the church[l], but almost grown out of use; though their deaneries still subsist as an ecclesiastical division of the diocese, or archdeaconry. they seem to have been deputies of the bishop, planted all round his diocese, the better to inspect the conduct of the parochial clergy, and therefore armed with an inferior degree of judicial and coercive authority[m]. [footnote l: kennet. par. antiq. .] [footnote m: gibs. cod. .] v. the next, and indeed the most numerous order of men in the system of ecclesiastical polity, are the parsons and vicars of parishes: in treating of whom i shall first mark out the distinction between them; shall next observe the method by which one may become a parson or vicar; shall then briefly touch upon their rights and duties; and shall, lastly, shew how one may cease to be either. a parson, _persona ecclesiae_, is one that hath full possession of all the rights of a parochial church. he is called parson, _persona_, because by his person the church, which is an invisible body, is represented; and he is in himself a body corporate, in order to protect and defend the rights of the church (which he personates) by a perpetual succession[n]. he is sometimes called the rector, or governor, of the church: but the appellation of _parson_, (however it may be depreciated by familiar, clownish, and indiscriminate use) is the most legal, most beneficial, and most honourable title that a parish priest can enjoy; because such a one, (sir edward coke observes) and he only, is said _vicem seu personam ecclesiae gerere_. a parson has, during his life, the freehold in himself of the parsonage house, the glebe, the tithes, and other dues. but these are sometimes _appropriated_; that is to say, the benefice is perpetually annexed to some spiritual corporation, either sole or aggregate, being the patron of the living; whom the law esteems equally capable of providing for the service of the church, as any single private clergyman. this contrivance seems to have sprung from the policy of the monastic orders, who have never been deficient in subtle inventions for the increase of their own power and emoluments. at the first establishment of parochial clergy, the tithes of the parish were distributed in a fourfold division; one for the use of the bishop, another for maintaining the fabrick of the church, a third for the poor, and the fourth to provide for the incumbent. when the sees of the bishops became otherwise amply endowed, they were prohibited from demanding their usual share of these tithes, and the division was into three parts only. and hence it was inferred by the monasteries, that a small part was sufficient for the officiating priest, and that the remainder might well be applied to the use of their own fraternities, (the endowment of which was construed to be a work of the most exalted piety) subject to the burthen of repairing the church and providing for it's constant supply. and therefore they begged and bought, for masses and obits, and sometimes even for money, all the advowsons within their reach, and then appropriated the benefices to the use of their own corporation. but, in order to complete such appropriation effectually, the king's licence, and consent of the bishop, must first be obtained; because both the king and the bishop may sometime or other have an interest, by lapse, in the presentation to the benefice; which can never happen if it be appropriated to the use of a corporation, which never dies: and also because the law reposes a confidence in them, that they will not consent to any thing that shall be to the prejudice of the church. the consent of the patron also is necessarily implied, because (as was before observed) the appropriation can be originally made to none, but to such spiritual corporation, as is also the patron of the church; the whole being indeed nothing else, but an allowance for the patrons to retain the tithes and glebe in their own hands, without presenting any clerk, they themselves undertaking to provide for the service of the church[o]. when the appropriation is thus made, the appropriators and their successors are perpetual parsons of the church; and must sue and be sued, in all matters concerning the rights of the church, by the name of parsons[p]. [footnote n: co. litt. .] [footnote o: plowd. - .] [footnote p: hob. .] this appropriation may be severed, and the church become disappropriate, two ways: as, first, if the patron or appropriator presents a clerk, who is instituted and inducted to the parsonage: for the incumbent so instituted and inducted is to all intents and purposes complete parson; and the appropriation, being once severed, can never be re-united again, unless by a repetition of the same solemnities[q]. and when the clerk so presented is distinct from the vicar, the rectory thus vested in him becomes what is called a _sine-cure_; because he hath no cure of souls, having a vicar under him to whom that cure is committed[r]. also, if the corporation which has the appropriation is dissolved, the parsonage becomes disappropriate at common law; because the perpetuity of person is gone, which is necessary to support the appropriation. [footnote q: co. litt. .] [footnote r: sine-cures might also be created by other means. burn. eccl. law. .] in this manner, and subject to these conditions, may appropriations be made at this day: and thus were most, if not all, of the appropriations at present existing originally made; being annexed to bishopricks, prebends, religious houses, nay, even to nunneries, and certain military orders, all of which were spiritual corporations. at the dissolution of monasteries by statutes hen. viii. c. . and hen. viii. c. . the appropriations of the several parsonages, which belonged to those respective religious houses, (amounting to more than one third of all the parishes in england[s]) would have been by the rules of the common law disappropriated; had not a clause in those statutes intervened, to give them to the king in as ample a manner as the abbots, &c, formerly held the same, at the time of their dissolution. this, though perhaps scarcely defensible, was not without example; for the same was done in former reigns, when the alien priories, (that is, such as were filled by foreigners only) were dissolved and given to the crown[t]. and from these two roots have sprung all the lay appropriations or secular parsonages, which we now see in the kingdom; they having been afterwards granted out from time to time by the crown[u]. [footnote s: seld. review of tith. c. . spelm. apology. .] [footnote t: inst. .] [footnote u: sir h. spelman (of tythes, c. .) says these are now called impropriations, as being _improperly_ in the hands of laymen.] these appropriating corporations, or religious houses, were wont to depute one of their own body to perform divine service, and administer the sacraments, in those parishes of which the society was thus the parson. this officiating minister was in reality no more than a curate, deputy, or vicegerent of the appropriator, and therefore called _vicarius_, or _vicar_. his stipend was at the discretion of the appropriator, who was however bound of common right to find somebody, _qui illi de temporalibus, episcopo de spiritualibus, debeat respondere_[w]. but this was done in so scandalous a manner, and the parishes suffered so much by the neglect of the appropriators, that the legislature was forced to interpose: and accordingly it is enacted by statute ric. ii. c. . that in all appropriations of churches, the diocesan bishop shall ordain (in proportion to the value of the church) a competent sum to be distributed among the poor parishioners annually; and that the vicarage shall be _sufficiently_ endowed. it seems the parish were frequently sufferers, not only by the want of divine service, but also by withholding those alms, for which, among other purposes, the payment of tithes was originally imposed: and therefore in this act a pension is directed to be distributed among the poor parochians, as well as a sufficient stipend to the vicar. but he, being liable to be removed at the pleasure of the appropriator, was not likely to insist too rigidly on the legal sufficiency of the stipend: and therefore by statute hen. iv. c. . it is ordained, that the vicar shall be a secular person, not a member of any religious house; that he shall be vicar perpetual, not removeable at the caprice of the monastery; and that he shall be canonically instituted and inducted, and be sufficiently endowed, at the discretion of the ordinary, for these three express purposes, to do divine service, to inform the people, and to keep hospitality. the endowments in consequence of these statutes have usually been by a portion of the glebe, or land, belonging to the parsonage, and a particular share of the tithes, which the appropriators found it most troublesome to collect, and which are therefore generally called privy, small, or vicarial, tithes; the greater, or predial, tithes being still referred to their own use. but one and the same rule was not observed in the endowment of all vicarages. hence some are more liberally, and some more scantily, endowed; and hence many things, as wood in particular, is in some countries a predial, and in some a vicarial tithe. [footnote w: seld. tith. c. . .] the distinction therefore of a parson and vicar is this; that the parson has for the most part the whole right to all the ecclesiastical dues in his parish; but a vicar has generally an appropriator over him, entitled to the best part of the profits, to whom he is in effect perpetual curate, with a standing salary. though in some places the vicarage has been considerably augmented by a large share of the great tithes; which augmentations were greatly assisted by the statute car. ii. c. . enacted in favour of poor vicars and curates, which rendered such temporary augmentations (when made by the appropriators) perpetual. the method of becoming a parson or vicar is much the same. to both there are four requisites necessary: holy orders; presentation; institution; and induction. the method of conferring the holy orders of deacon and priest, according to the liturgy and canons[x], is foreign to the purpose of these commentaries; any farther than as they are necessary requisites to make a complete parson or vicar. by common law a deacon, of any age, might be instituted and inducted to a parsonage or vicarage: but it was ordained by statute eliz. c. . that no person under twenty three years of age, and in deacon's orders, should be presented to any benefice with cure; and if he were not ordained priest within one year after his induction, he should be _ipso facto_ deprived: and now, by statute & car. ii. c. . no person is capable to be admitted to any benefice, unless he hath been first ordained a priest; and then he is, in the language of the law, a clerk in orders. but if he obtains orders, or a licence to preach, by money or corrupt practices (which seems to be the true, though not the common notion of simony) the person giving such orders forfeits[y] _l._ and the person receiving _l._ and is incapable of any ecclesiastical preferment for seven years afterwards. [footnote x: see burn. eccl. law. .] [footnote y: stat. eliz. c. .] any clerk may be presented[z] to a parsonage or vicarage; that is, the patron, to whom the advowson of the church belongs, may offer his clerk to the bishop of the diocese to be instituted. of advowsons, or the right of presentation, being a species of private property, we shall find a more convenient place to treat in the second part of these commentaries. but when a clerk is presented, the bishop may refuse him upon many accounts. as, . if the patron is excommunicated, and remains in contempt forty days[a]. or, . if the clerk be unfit[b]: which unfitness is of several kinds. first, with regard to his person; as if he be a bastard, an outlaw, an excommunicate, an alien, under age, or the like[c]. next, with regard to his faith or morals; as for any particular heresy, or vice that is _malum in se_: but if the bishop alleges only in generals, as that he is _schismaticus inveteratus_, or objects a fault that is _malum prohibitum_ merely, as haunting taverns, playing at unlawful games, or the like; it is not good cause of refusal[d]. or, lastly, the clerk may be unfit to discharge the pastoral office for want of learning. in any of which cases the bishop may refuse the clerk. in case the refusal is for heresy, schism, inability of learning, or other matter of ecclesiastical cognizance, there the bishop must give notice to the patron of such his cause of refusal, who, being usually a layman, is not supposed to have knowlege of it; else he cannot present by lapse: but if the cause be temporal, there he is not bound to give notice[e]. [footnote z: a layman may also be presented; but he must take priests orders before his admission. burn. .] [footnote a: roll. abr. .] [footnote b: glanv. _l._ . _c._ .] [footnote c: roll. abr. . inst. . stat. ric. ii. c. . ric. ii. c. .] [footnote d: rep. .] [footnote e: inst. .] if an action at law be brought by the patron against the bishop, for refusing his clerk, the bishop must assign the cause. if the cause be of a temporal nature and the fact admitted, (as, for instance, outlawry) the judges of the king's courts must determine it's validity, or, whether it be sufficient cause of refusal: but if the fact be denied, it must be determined by a jury. if the cause be of a spiritual nature, (as, heresy, particularly alleged) the fact if denied shall also be determined by a jury; and if the fact be admitted or found, the court upon consultation and advice of learned divines shall decide it's sufficiency[f]. if the cause be want of learning, the bishop need not specify in what points the clerk is deficient, but only allege that he _is_ deficient[g]: for the statute edw. ii. st. . c. . is express, that the examination of the fitness of a person presented to a benefice belongs to the ecclesiastical judge. but because it would be nugatory in this case to demand the reason of refusal from the ordinary, if the patron were bound to abide by his determination, who has already pronounced his clerk unfit; therefore if the bishop returns the clerk to be _minus sufficiens in literatura_, the court shall write to the metropolitan, to reexamine him, and certify his qualifications; which certificate of the arch-bishop is final[h]. [footnote f: inst. .] [footnote g: rep. . lev. .] [footnote h: inst. .] if the bishop hath no objections, but admits the patron's presentation, the clerk so admitted is next to be instituted by him; which is a kind of investiture of the spiritual part of the benefice: for by institution the care of the souls of the parish is committed to the charge of the clerk. when a vicar is instituted, he (besides the usual forms) takes, if required by the bishop, an oath of perpetual residence; for the maxim of law is, that _vicarius non habet vicarium_: and as the non-residence of the appropriators was the cause of the perpetual establishment of vicarages, the law judges it very improper for them to defeat the end of their constitution, and by absence to create the very mischiefs which they were appointed to remedy: especially as, if any profits are to arise from putting in a curate and living at a distance from the parish, the appropriator, who is the real parson, has undoubtedly the elder title to them. when the ordinary is also the patron, and _confers_ the living, the presentation and institution are one and the same act, and are called a collation to a benefice. by institution or collation the church is full, so that there can be no fresh presentation till another vacancy, at least in the case of a common patron; but the church is not full against the king, till induction: nay, even if a clerk is instituted upon the king's presentation, the crown may revoke it before induction, and present another clerk[i]. upon institution also the clerk may enter on the parsonage house and glebe, and take the tithes; but he cannot grant or let them, or bring any action for them, till induction. [footnote i: co. litt. .] induction is performed by a mandate from the bishop to the arch-deacon, who usually issues out a precept to other clergymen to perform it for him. it is done by giving the clerk corporal possession of the church, as by holding the ring of the door, tolling a bell, or the like; and is a form required by law, with intent to give all the parishioners due notice, and sufficient certainty of their new minister, to whom their tithes are to be paid. this therefore is the investiture of the temporal part of the benefice, as institution is of the spiritual. and when a clerk is thus presented, instituted, and inducted into a rectory, he is then, and not before, in full and complete possession, and is called in law _persona impersonata_, or parson imparsonee[k]. [footnote k: co. litt. .] the rights of a parson or vicar, in his tithes and ecclesiastical dues, fall more properly under the second book of these commentaries: and as to his duties, they are principally of ecclesiastical cognizance; those only excepted which are laid upon him by statute. and those are indeed so numerous that it is impracticable to recite them here with any tolerable conciseness or accuracy. some of them we may remark, as they arise in the progress of our enquiries, but for the rest i must refer myself to such authors as have compiled treatises expressly upon this subject[l]. i shall only just mention the article of residence, upon the supposition of which the law doth stile every parochial minister an incumbent. by statute hen. viii. c. . persons wilfully absenting themselves from their benefices, for one month together, or two months in the year, incur a penalty of _l._ to the king, and _l._ to any person that will sue for the same: except chaplains to the king, or others therein mentioned[m], during their attendance in the houshold of such as retain them: and also except[n] all heads of houses, magistrates, and professors in the universities, and all students under forty years of age residing there, _bona fide_, for study. legal residence is not only in the parish, but also in the parsonage house: for it hath been resolved[o], that the statute intended residence, not only for serving the cure, and for hospitality; but also for maintaining the house, that the successor also may keep hospitality there. [footnote l: these are very numerous: but there are only two, which can be relied on with any degree of certainty; bishop gibson's _codex_, and dr burn's ecclesiastical law.] [footnote m: stat. hen. viii. c. . hen. viii. c. .] [footnote n: stat. hen. viii. c. .] [footnote o: rep. .] we have seen that there is but one way, whereby one may become a parson or vicar: there are many ways, by which one may cease to be so. . by death. . by cession, in taking another benefice. for by statute hen. viii. c. . if any one having a benefice of _l._ _per annum_, or upwards, in the king's books, (according to the present valuation[p],) accepts any other, the first shall be adjudged void; unless he obtains a dispensation; which no one is entitled to have, but the chaplains of the king and others therein mentioned, the brethren and sons of lords and knights, and doctors and bachelors of divinity and law, _admitted by the universities_ of this realm. and a vacancy thus made, for want of a dispensation, is called cession. . by consecration; for, as was mentioned before, when a clerk is promoted to a bishoprick, all his other preferments are void the instant that he is consecrated. but there is a method, by the favour of the crown, of holding such livings _in commendam_. _commenda_, or _ecclesia commendata_, is a living commended by the crown to the care of a clerk, to hold till a proper pastor is provided for it. this may be temporary, for one, two, or three years, or perpetual; being a kind of dispensation to avoid the vacancy of the living, and is called a _commenda retinere_. there is also a _commenda recipere_, which is to take a benefice _de novo_, in the bishop's own gift, or the gift of some other patron consenting to the same; and this is the same to him as institution and induction are to another clerk[q]. . by resignation. but this is of no avail, till accepted by the ordinary; into whose hands the resignation must be made[r]. . by deprivation, either by canonical censures, of which i am not to speak; or in pursuance of divers penal statutes, which declare the benefice void, for some nonfeasance or neglect, or else some malefeasance or crime. as, for simony[s]; for maintaining any doctrine in derogation of the king's supremacy, or of the thirty nine articles, or of the book of common-prayer[t]; for neglecting after institution to read the articles in the church, or make the declarations against popery, or take the abjuration oath[u]; for using any other form of prayer than the liturgy of the church of england[w]; or for absenting himself sixty days in one year from a benefice belonging to a popish patron, to which the clerk was presented by either of the universities[x]; in all which and similar cases[y] the benefice is _ipso facto_ void, without any formal sentence of deprivation. [footnote p: cro. car. .] [footnote q: hob. .] [footnote r: cro. jac. .] [footnote s: stat. eliz. c. . and ann. c. .] [footnote t: stat. eliz. c. & . and eliz. c. .] [footnote u: stat. eliz. c. . car. ii. c. . and geo. i. c. .] [footnote w: stat. eliz. c. .] [footnote x: stat. w. & m. c. .] [footnote y: rep. , .] vi. a curate is the lowest degree in the church; being in the same state that a vicar was formerly, an officiating temporary minister, instead of the real incumbent. though there are what are called _perpetual_ curacies, where all the tithes are appropriated, and no vicarage endowed, (being for some particular reasons[z] exempted from the statute of hen. iv) but, instead thereof, such perpetual curate is appointed by the appropriator. with regard to the other species of curates, they are the objects of some particular statutes, which ordain, that such as serve a church during it's vacancy shall be paid such stipend as the ordinary thinks reasonable, out of the profits of the vacancy; or, if that be not sufficient, by the successor within fourteen days after he takes possession[a]: and that, if any rector or vicar nominates a curate to the ordinary to be licenced, the ordinary shall settle his stipend under his hand and seal, not exceeding _l._ _per annum_, nor less than _l._ and on failure of payment may sequester the profits of the benefice[b]. [footnote z: burn. eccl. law. .] [footnote a: stat. hen. viii. c. .] [footnote b: stat. ann. st. . c. .] thus much of the clergy, properly so called. there are also certain inferior ecclesiastical officers of whom the common law takes notice; and that, principally, to assist the ecclesiastical jurisdiction, where it is deficient in powers. on which officers i shall make a few cursory remarks. vii. churchwardens are the guardians or keepers of the church, and representatives of the body of the parish[c]. they are sometimes appointed by the minister, sometimes by the parish, sometimes by both together, as custom directs. they are taken, in favour of the church, to be for some purposes a kind of corporation at the common law; that is, they are enabled by that name to have a property in goods and chattels, and to bring actions for them, for the use and profit of the parish. yet they may not waste the church goods, but may be removed by the parish, and then called to account by action at the common law: but there is no method of calling them to account, but by first removing them; for none can legally do it, but those who are put in their place. as to lands, or other real property, as the church, church-yard, &c, they have no sort of interest therein; but if any damage is done thereto, the parson only or vicar shall have the action. their office also is to repair the church, and make rates and levies for that purpose: but these are recoverable only in the ecclesiastical court. they are also joined with the overseers in the care and maintenance of the poor. they are to levy[d] a shilling forfeiture on all such as do not repair to church on sundays and holidays, and are empowered to keep all persons orderly while there; to which end it has been held that a churchwarden may justify the pulling off a man's hat, without being guilty of either an assault or trespass[e]. there are also a multitude of other petty parochial powers committed to their charge by divers acts of parliament[f]. [footnote c: in sweden they have similar officers, whom they call _kiorckiowariandes_. stiernhook. l. . c. .] [footnote d: stat. eliz. c. .] [footnote e: lev. .] [footnote f: see lambard of churchwardens, at the end of his _eirenarcha_; and dr burn, tit. _church, churchwardens, visitation_.] viii. parish clerks and sextons are also regarded by the common law, as persons who have freeholds in their offices; and therefore though they may be punished, yet they cannot be deprived, by ecclesiastical censures[g]. the parish clerk was formerly always in holy orders; and some are so to this day. he is generally appointed by the incumbent, but by custom may be chosen by the inhabitants; and if such custom appears, the court of king's bench will grant a _mandamus_ to the arch-deacon to swear him in, for the establishment of the custom turns it into a temporal or civil right[h]. [footnote g: roll. abr. .] [footnote h: cro. car. .] chapter the twelfth. of the civil state. the lay part of his majesty's subjects, or such of the people as are not comprehended under the denomination of clergy, may be divided into three distinct states, the civil, the military, and the maritime. that part of the nation which falls under our first and most comprehensive division, the civil state, includes all orders of men, from the highest nobleman to the meanest peasant; that are not included under either our former division, of clergy, or under one of the two latter, the military and maritime states: and it may sometimes include individuals of the other three orders; since a nobleman, a knight, a gentleman, or a peasant, may become either a divine, a soldier, or a seaman. the civil state consists of the nobility and the commonalty. of the nobility, the peerage of great britain, or lords temporal, as forming (together with the bishops) one of the supreme branches of the legislature, i have before sufficiently spoken: we are here to consider them according to their several degrees, or titles of honour. all degrees of nobility and honour are derived from the king as their fountain[a]: and he may institute what new titles he pleases. hence it is that all degrees of honour are not of equal antiquity. those now in use are dukes, marquesses, earls, viscounts, and barons[b]. [footnote a: inst. .] [footnote b: for the original of these titles on the continent of europe, and their subsequent introduction into this island, see mr selden's _titles of honour_.] . a _duke_, though it be with us, as a mere title of nobility, inferior in point of antiquity to many others, yet it is superior to all of them in rank; being the first title of dignity after the royal family[c]. among the saxons the latin name of dukes, _duces_, is very frequent, and signified, as among the romans, the commanders or leaders of their armies, whom in their own language they called [anglo-saxon: heretoga][d]; and in the laws of henry i (as translated by lambard) we find them called _heretochii_. but after the norman conquest, which changed the military polity of the nation, the kings themselves continuing for many generations _dukes_ of normandy, they would not honour any subjects with that title, till the time of edward iii; who, claiming to be king of france, and thereby losing the ducal in the royal dignity, in the eleventh year of his reign created his son, edward the black prince, duke of cornwall: and many, of the royal family especially, were afterwards raised to the same honour. however, in the reign of queen elizabeth, _a.d._ [e], the whole order became utterly extinct: but it was revived about fifty years afterwards by her successor, who was remarkably prodigal of honours, in the person of george villiers duke of buckingham. [footnote c: camden. britan. _tit. ordines_.] [footnote d: this is apparently derived from the same root as the german [fraktur: hertzogen], the antient appellation of dukes in that country. seld. tit. hon. . . .] [footnote e: camden. britan. _tit. ordines_. spelman. _gloss._ .] . a _marquess_, _marchio_, is the next degree of nobility. his office formerly was (for dignity and duty were never separated by our ancestors) to guard the frontiers and limits of the kingdom; which were called the marches, from the teutonic word, _marche_, a limit: as, in particular, were the marches of wales and scotland, while they continued to be enemies countries. the persons who had command there, were called lords marchers, or marquesses; whose authority was abolished by statute hen. viii. c. : though the title had long before been made a mere ensign of honour; robert vere, earl of oxford, being created marquess of dublin, by richard ii in the eighth year of his reign[f]. [footnote f: inst. .] . an _earl_ is a title of nobility so antient, that it's original cannot clearly be traced out. thus much seems tolerably certain: that among the saxons they were called _ealdormen_, _quasi_ elder men, signifying the same as _senior_ or _senator_ among the romans; and also _schiremen_, because they had each of them the civil government of a several division or shire. on the irruption of the danes, they changed the name to _eorles_, which, according to camden[g], signified the same in their language. in latin they are called _comites_ (a title first used in the empire) from being the king's attendants; "_a societate nomen sumpserunt, reges enim tales sibi associant_[h]." after the norman conquest they were for some time called _counts_, or _countees_, from the french; but they did not long retain that name themselves, though their shires are from thence called counties to this day. it is now become a mere title, they having nothing to do with the government of the county; which, as has been more than once observed, is now entirely devolved on the sheriff, the earl's deputy, or _vice-comes_. in all writs, and commissions, and other formal instruments, the king, when he mentions any peer of the degree of an earl, always stiles him "trusty and well beloved _cousin_:" an appellation as antient as the reign of henry iv; who being either by his wife, his mother, or his sisters, actually related or allied to every earl in the kingdom, artfully and constantly acknowleged that connexion in all his letters and other public acts; from whence the usage has descended to his successors, though the reason has long ago failed. [footnote g: _ibid._] [footnote h: bracton. _l._ . _c._ . fleta. _l._ i. _c._ .] . the name of _vice-comes_ or _viscount_ was afterwards made use of as an arbitrary title of honour, without any shadow of office pertaining to it, by henry the sixth; when in the eighteenth year of his reign, he created john beaumont a peer, by the name of viscount beaumont, which was the first instance of the kind[i]. [footnote i: inst. .] . a _baron_'s is the most general and universal title of nobility; for originally every one of the peers of superior rank had also a barony annexed to his other titles[k]. but it hath sometimes happened that, when an antient baron hath been raised to a new degree of peerage, in the course of a few generations the two titles have descended differently; one perhaps to the male descendants, the other to the heirs general; whereby the earldom or other superior title hath subsisted without a barony: and there are also modern instances where earls and viscounts have been created without annexing a barony to their other honours: so that now the rule does not hold universally, that all peers are barons. the original and antiquity of baronies has occasioned great enquiries among our english antiquarians. the most probable opinion seems to be, that they were the same with our present lords of manors; to which the name of court baron, (which is the lord's court, and incident to every manor) gives some countenance. it may be collected from king john's _magna carta_[l], that originally all lords of manors, or barons, that held of the king _in capite_, had seats in the great council or parliament, till about the reign of that prince the conflux of them became so large and troublesome, that the king was obliged to divide them, and summon only the greater barons in person; leaving the small ones to be summoned by the sheriff, and (as it is said) to sit by representation in another house; which gave rise to the separation of the two houses of parliament[m]. by degrees the title came to be confined to the greater barons, or lords of parliament only; and there were no other barons among the peerage but such as were summoned by writ, in respect of the tenure of their lands or baronies, till richard the second first made it a mere title of honor, by conferring it on divers persons by his letters patent[n]. [footnote k: inst. , .] [footnote l: _cap._ .] [footnote m: gilb. hist. exch. c. . seld. tit. of hon. . . .] [footnote n: inst. . seld. _jan. angl._ . §. .] having made this short enquiry into the original of our several degrees of nobility, i shall next consider the manner in which they may be created. the right of peerage seems to have been originally territorial; that is, annexed to lands, honors, castles, manors, and the like, the proprietors and possessors of which were (in right of those estates) allowed to be peers of the realm, and were summoned to parliament to do suit and service to their sovereign: and, when the land was alienated, the dignity passed with it as appendant. thus the bishops still sit in the house of lords in right of succession to certain antient baronies annexed, or supposed to be annexed, to their episcopal lands[o]: and thus, in hen. vi, the possession of the castle of arundel was adjudged to confer an earldom on it's possessor[p]. but afterwards, when alienations grew to be frequent, the dignity of peerage was confined to the lineage of the party ennobled, and instead of territorial became personal. actual proof of a tenure by barony became no longer necessary to constitute a lord of parliament; but the record of the writ of summons to them or their ancestors was admitted as a sufficient evidence of the tenure. [footnote o: glanv. _l._ . _c._ .] [footnote p: seld. tit. of hon. b. . c. . §. .] peers are now created either by writ, or by patent: for those who claim by prescription must suppose either a writ or patent made to their ancestors; though by length of time it is lost. the creation by writ, or the king's letter, is a summons to attend the house of peers, by the stile and title of that barony, which the king is pleased to confer: that by patent is a royal grant to a subject of any dignity and degree of peerage. the creation by writ is the more antient way; but a man is not ennobled thereby, unless he actually takes his seat in the house of lords: and therefore the most usual, because the surest, way is to grant the dignity by patent, which enures to a man and his heirs according to the limitations thereof, though he never himself makes use of it[q]. yet it is frequent to call up the eldest son of a peer to the house of lords by writ of summons, in the name of his father's barony: because in that case there is no danger of his children's losing the nobility in case he never takes his seat; for they will succeed to their grand-father. creation by writ has also one advantage over that by patent: for a person created by writ holds the dignity to him _and his heirs_, without any words to that purport in the writ; but in letters patent there must be words to direct the inheritance, else the dignity enures only to the grantee for life[r]. for a man or woman may be created noble for their own lives, and the dignity not descend to their heirs at all, or descend only to some particular heirs: as where a peerage is limited to a man, and the heirs male of his body by elizabeth his present lady, and not to such heirs by any former or future wife. [footnote q: co. litt. .] [footnote r: co. litt. . .] let us next take a view of a few of the principal incidents attending the nobility, exclusive of their capacity as members of parliament, and as hereditary counsellors of the crown; both of which we have before considered. and first we must observe, that in criminal cases, a nobleman shall be tried by his peers. the great are always obnoxious to popular envy: were they to be judged by the people, they might be in danger from the prejudice of their judges; and would moreover be deprived of the privilege of the meanest subjects, that of being tried by their equals, which is secured to all the realm by _magna carta_, c. . it is said, that this does not extend to bishops; who, though they are lords of parliament, and sit there by virtue of their baronies which they hold _jure ecclesiae_, yet are not ennobled in blood, and consequently not peers with the nobility[s]. as to peeresses, no provision was made for their trial when accused of treason or felony, till after eleanor dutchess of gloucester, wife to the lord protector, had been accused of treason and found guilty of witchcraft, in an ecclesiastical synod, through the intrigues of cardinal beaufort. this very extraordinary trial gave occasion to a special statute, hen. vi. c. . which enacts that peeresses either in their own right, or by marriage, shall be tried before the same judicature as peers of the realm. if a woman, noble in her own right, marries a commoner, she still remains noble, and shall be tried by her peers: but if she be only noble by marriage, then by a second marriage, with a commoner, she loses her dignity; for as by marriage it is gained, by marriage it is also lost. yet if a duchess dowager marries a baron, she continues a duchess still; for all the nobility are _pares_, and therefore it is no degradation[t]. a peer, or peeress (either in her own right or by marriage) cannot be arrested in civil cases[u]: and they have also many peculiar privileges annexed to their peerage in the course of judicial proceedings. a peer, sitting in judgment, gives not his verdict upon oath, like an ordinary juryman, but upon his honour[w]: he answers also to bills in chancery upon his honour, and not upon his oath[x]; but, when he is examined as a witness either in civil or criminal cases, he must be sworn[y]: for the respect, which the law shews to the honour of a peer, does not extend so far as to overturn a settled maxim, that _in judicio non creditur nisi juratis_[z]. the honour of peers is however so highly tendered by the law, that it is much more penal to spread false reports of them, and certain other great officers of the realm, than of other men: scandal against them being called by the peculiar name of _scandalum magnatum_; and subjected to peculiar punishment by divers antient statutes[a]. [footnote s: inst. , .] [footnote t: inst. .] [footnote u: finch. l. . ventr. .] [footnote w: inst .] [footnote x: p. wms. .] [footnote y: salk. .] [footnote z: cro. car. .] [footnote a: edw. i. c. . ric. ii. st. . c. . ric. ii. c. .] a peer cannot lose his nobility, but by death or attainder; hough [transcriber's note: though] there was an instance, in the reign of edward the fourth, of the degradation of george nevile duke of bedford by act of parliament[b], on account of his poverty, which rendered him unable to support his dignity[c]. but this is a singular instance: which serves at the same time, by having happened, to shew the power of parliament; and, by having happened but once, to shew how tender the parliament hath been, in exerting so high a power. it hath been said indeed[d], that if a baron waste his estate, so that he is not able to support the degree, the _king_ may degrade him: but it is expressly held by later authorities[e], that a peer cannot be degraded but by act of _parliament_. [footnote b: inst. .] [footnote c: the preamble to the act is remarkable: "forasmuch as oftentimes it is seen, that when any lord is called to high estate, and hath not convenient livelyhood to support the same dignity, it induceth great poverty and indigence, and causeth oftentimes great extortion, embracery, and maintenance to be had; to the great trouble of all such countries where such estate shall happen to be: therefore, &c."] [footnote d: by lord chancellor ellesmere. moor. .] [footnote e: rep. . mod. .] the commonalty, like the nobility, are divided into several degrees; and, as the lords, though different in rank, yet all of them are peers in respect of their nobility, so the commoners, though some are greatly superior to others, yet all are in law peers, in respect of their want of nobility[f]. [footnote f: inst. .] the first name of dignity, next beneath a peer, was anciently that of _vidames_, _vice domini_, or _valvasors_[g]: who are mentioned by our antient lawyers[h] as _viri magnae dignitatis_; and sir edward coke[i] speaks highly of them. yet they are now quite out of use; and our legal antiquarians are not so much as agreed upon their original or ancient office. [footnote g: camden. _ibid._] [footnote h: bracton. _l._ . _c._ .] [footnote i: inst. .] now therefore the first dignity after the nobility, is a _knight_ of the order of st. george, or _of the garter_; first instituted by edward iii, _a.d._ [k]. next follows a _knight banneret_; who indeed by statutes ric. ii. st. . c. . and ric. ii. c. . is ranked next after barons: and that precedence was confirmed to him by order of king james i, in the tenth year of his reign[l]. but, in order to intitle himself to this rank, he must have been created by the king in person, in the field, under the royal banners, in time of open war[m]. else he ranks after _baronets_; who are the next order: which title is a dignity of inheritance, created by letters patent, and usually descendible to the issue male. it was first instituted by king james the first, _a.d._ . in order to raise a competent sum for the reduction of the province of ulster in ireland; for which reason all baronets have the arms of ulster superadded to their family coat. next follow _knights of the bath_; an order instituted by king henry iv, and revived by king george the first. they are so called from the ceremony of bathing, the night before their creation. the last of these inferior nobility are _knights bachelors_; the most antient, though the lowest, order of knighthood amongst us: for we have an instance[n] of king alfred's conferring this order on his son athelstan. the custom of the antient germans was to give their young men a shield and a lance in the great council: this was equivalent to the _toga virilis_ of the romans: before this they were not permitted to bear arms, but were accounted as part of the father's houshold; after it, as part of the public[o]. hence some derive the usage of knighting, which has prevailed all over the western world, since it's reduction by colonies from those northern heroes. knights are called in latin _equites aurati_; _aurati_, from the gilt spurs they wore; and _equites_, because they always served on horseback: for it is observable[p], that almost all nations call their knights by some appellation derived from an horse. they are also called in our law _milites_, because they formed a part, or indeed the whole of the royal army, in virtue of their feodal tenures; one condition of which was, that every one who held a knights fee (which in henry the second's time[q] amounted to _l._ _per annum_) was obliged to be knighted, and attend the king in his wars, or fine for his non-compliance. the exertion of this prerogative, as an expedient to raise money in the reign of charles the first, gave great offence; though warranted by law, and the recent example of queen elizabeth: but it was, at the restoration, together with all other military branches of the feodal law, abolished; and this kind of knighthood has, since that time, fallen into great disregard. [footnote k: seld. tit. of hon. . . .] [footnote l: seld. tit. hon. . . .] [footnote m: inst. .] [footnote n: will. malmsb. _lib._ .] [footnote o: tac. _de morib. germ._ .] [footnote p: camden. _ibid._ co. litt. .] [footnote q: glanvil. _l._ . _c._ .] these, sir edward coke says[r], are all the names of _dignity_ in this kingdom, esquires and gentlemen being only names of _worship_. but before these last the heralds rank all colonels, serjeants at law, and doctors in the three learned professions. [footnote r: inst. .] esquires and gentlemen are confounded together by sir edward coke, who observes[s], that every esquire is a gentleman, and a gentleman is defined to be one _qui arma gerit_, who bears coat armour, the grant of which adds gentility to a man's family: in like manner as civil nobility, among the romans, was founded in the _jus imaginum_, or having the image of one ancestor at least, who had borne some curule office. it is indeed a matter somewhat unsettled, what constitutes the distinction, or who is a real _esquire_: for it is not an estate, however large, that confers this rank upon it's owner. camden, who was himself a herald, distinguishes them the most accurately; and he reckons up four sorts of them[t]: . the eldest sons of knights, and their eldest sons, in perpetual succession[u]. . the younger sons of peers, and their eldest sons, in like perpetual succession: both which species of esquires sir h. spelman entitles _armigeri natalitii_[w]. . esquires created by the king's letters patent, or other investiture; and their eldest sons. . esquires by virtue of their offices; as justices of the peace, and others who bear any office of trust under the crown. to these may be added the esquires of knights of the bath, each of whom constitutes three at his installation; and all foreign, nay, irish peers; and the eldest sons of peers of great britain, who, though generally titular lords, are only esquires in the law, and must so be named in all legal proceedings[x]. as for _gentlemen_, says sir thomas smith[y], they be made good cheap in this kingdom: for whosoever studieth the laws of the realm, who studieth in the universities, who professeth liberal sciences, and (to be short) who can live idly, and without manual labour, and will bear the port, charge, and countenance of a gentleman, he shall be called master, and shall be taken for a gentleman. a _yeoman_ is he that hath free land of forty shillings by the year; who is thereby qualified to serve on juries, vote for knights of the shire, and do any other act, where the law requires one that is _probus et legalis homo_[z]. [footnote s: inst. .] [footnote t: _ibid._] [footnote u: inst. .] [footnote w: gloss. .] [footnote x: inst. . inst. .] [footnote y: commonw. of eng. book . c. .] [footnote z: inst. .] the rest of the commonalty are _tradesmen_, _artificers_, and _labourers_; who (as well as all others) must in pursuance of the statute hen. v. c. . be stiled by the name and addition of their estate, degree, or mystery, in all actions and other legal proceedings. chapter the thirteenth. of the military and maritime states. the military state includes the whole of the soldiery; or, such persons as are peculiarly appointed among the rest of the people, for the safeguard and defence of the realm. in a land of liberty it is extremely dangerous to make a distinct order of the profession of arms. in absolute monarchies this is necessary for the safety of the prince, and arises from the main principle of their constitution, which is that of governing by fear: but in free states the profession of a soldier, taken singly and merely as a profession, is justly an object of jealousy. in these no man should take up arms, but with a view to defend his country and it's laws: he puts not off the citizen when he enters the camp; but it is because he is a citizen, and would wish to continue so, that he makes himself for a while a soldier. the laws therefore and constitution of these kingdoms know no such state as that of a perpetual standing soldier, bred up to no other profession than that of war: and it was not till the reign of henry vii, that the kings of england had so much as a guard about their persons. in the time of our saxon ancestors, as appears from edward the confessor's laws[a], the military force of this kingdom was in the hands of the dukes or heretochs, who were constituted through every province and county in the kingdom; being taken out of the principal nobility, and such as were most remarkable for being "_sapientes, fideles, et animosi_." their duty was to lead and regulate the english armies, with a very unlimited power; "_prout eis visum fuerit, ad honorem coronae et utilitatem regni_." and because of this great power they were elected by the people in their full assembly, or folkmote, in the same manner as sheriffs were elected: following still that old fundamental maxim of the saxon constitution, that where any officer was entrusted with such power, as if abused might tend to the oppression of the people, that power was delegated to him by the vote of the people themselves[b]. so too, among the antient germans, the ancestors of our saxon forefathers, they had their dukes, as well as kings, with an independent power over the military, as the kings had over the civil state. the dukes were elective, the kings hereditary: for so only can be consistently understood that passage of tacitus[c], "_reges ex nobilitate, duces ex virtute sumunt_;" in constituting their kings, the family, or blood royal, was regarded, in chusing their dukes or leaders, warlike merit: just as caesar relates of their ancestors in his time, that whenever they went to war, by way either of attack or defence, they _elected_ leaders to command them[d]. this large share of power, thus conferred by the people, though intended to preserve the liberty of the subject, was perhaps unreasonably detrimental to the prerogative of the crown: and accordingly we find a very ill use made of it by edric duke of mercia, in the reign of king edmond ironside; who, by his office of duke or heretoch, was entitled to a large command in the king's army, and by his repeated treacheries at last transferred the crown to canute the dane. [footnote a: _c. de heretochiis._] [footnote b: "_isti vero viri eliguntur per commune consilium, pro communi utilitate regni, per provincias et patrias universas, et per singulos comitatus, in pleno folkmote, sicut et vice-comites provinciarum et comitatuum eligi debent._" _ll. edw. confess._ _ibid._ see also bede, _eccl. hist._ _l._ . _c._ .] [footnote c: _de morib. german._ .] [footnote d: "_quum bellum civitas aut illatum defendit, aut infert, magistratus qui ei bello praesint deliguntur._" _de bell. gall._ _l._ . _c._ .] it seems universally agreed by all historians, that king alfred first settled a national militia in this kingdom, and by his prudent discipline made all the subjects of his dominion soldiers: but we are unfortunately left in the dark as to the particulars of this his so celebrated regulation; though, from what was last observed, the dukes seem to have been left in possession of too large and independent a power: which enabled duke harold on the death of edward the confessor, though a stranger to the royal blood, to mount for a short space the throne of this kingdom, in prejudice of edgar atheling, the rightful heir. upon the norman conquest the feodal law was introduced here in all it's rigor, the whole of which is built on a military plan. i shall not now enter into the particulars of that constitution, which belongs more properly to the next part of our commentaries: but shall only observe, that, in consequence thereof, all the lands in the kingdom were divided into what were called knight's fees, in number above sixty thousand; and for every knight's fee a knight or soldier, _miles_, was bound to attend the king in his wars, for forty days in a year; in which space of time, before war was reduced to a science, the campaign was generally finished, and a kingdom either conquered or victorious[e]. by this means the king had, without any expense, an army of sixty thousand men always ready at his command. and accordingly we find one, among the laws of william the conqueror[f], which in the king's name commands and firmly enjoins the personal attendance of all knights and others; "_quod habeant et teneant se semper in armis et equis, ut decet et oportet; et quod semper sint prompti et parati ad servitium suum integrum nobis explendum et peragendum, cum opus adfuerit, secundum quod debent de feodis et tenementis suis de jure nobis facere_." this personal service in process of time degenerated into pecuniary commutations or aids, and at last the military part of the feodal system was abolished at the restoration, by statute car. ii. c. . [footnote e: the poles are, even at this day, so tenacious of their antient constitution, that their pospolite, or militia, cannot be compelled to serve above six weeks, or forty days, in a year. mod. univ. hist. xxxiv. .] [footnote f: c. . see co. litt. , .] in the mean time we are not to imagine that the kingdom was left wholly without defence, in case of domestic insurrections, or the prospect of foreign invasions. besides those, who by their military tenures were bound to perform forty days service in the field, the statute of winchester[g] obliged every man, according to his estate and degree, to provide a determinate quantity of such arms as were then in use, in order to keep the peace: and constables were appointed in all hundreds to see that such arms were provided. these weapons were changed, by the statute & ph. & m. c. . into others of more modern service; but both this and the former provision were repealed in the reign of james i[h]. while these continued in force, it was usual from time to time for our princes to to [transcriber's note: duplicate word] issue commissions of array, and send into every county officers in whom they could confide, to muster and array (or set in military order) the inhabitants of every district: and the form of the commission of array was settled in parliament in the hen. iv[i]. but at the same time it was provided[k], that no man should be compelled to go out of the kingdom at any rate, nor out of his shire but in cases of urgent necessity; nor should provide soldiers unless by consent of parliament. about the reign of king henry the eighth, and his children, lord lieutenants began to be introduced, as standing representatives of the crown, to keep the counties in military order; for we find them mentioned as known officers in the statute & ph. & m. c. . though they had not been then long in use, for camden speaks of them[l], in the time of queen elizabeth, as extraordinary magistrates constituted only in times of difficulty and danger. [footnote g: edw. i. c. .] [footnote h: stat. jac. i. c. . jac. i. c. .] [footnote i: rushworth. part . pag. .] [footnote k: stat. edw iii. st. . c. & . edw. iii. st. . c. .] [footnote l: brit. . edit. .] in this state things continued, till the repeal of the statutes of armour in the reign of king james the first: after which, when king charles the first had, during his northern expeditions, issued commissions of lieutenancy and exerted some military powers which, having been long exercised, were thought to belong to the crown, it became a question in the long parliament, how far the power of the militia did inherently reside in the king; being now unsupported by any statute, and founded only upon immemorial usage. this question, long agitated with great heat and resentment on both sides, became at length the immediate cause of the fatal rupture between the king and his parliament: the two houses not only denying this prerogative of the crown, the legality of which right perhaps might be somewhat doubtful; but also seizing into their own hands the intire power of the militia, the illegality of which step could never be any doubt at all. soon after the restoration of king charles the second, when the military tenures were abolished, it was thought proper to ascertain the power of the militia, to recognize the sole right of the crown to govern and command them, and to put the whole into a more regular method of military subordination[m]: and the order, in which the militia now stands by law, is principally built upon the statutes which were then enacted. it is true the two last of them are apparently repealed; but many of their provisions are re-enacted, with the addition of some new regulations, by the present militia laws: the general scheme of which is to discipline a certain number of the inhabitants of every county, chosen by lot for three years, and officered by the lord lieutenant, the deputy lieutenants, and other principal landholders, under a commission from the crown. they are not compellable to march out of their counties, unless in case of invasion or actual rebellion, nor in any case compellable to march out of the kingdom. they are to be exercised at stated times: and their discipline in general is liberal and [transcriber's note: 'and' missing here but is in printer's mark on previous page] easy; but, when drawn out into actual service, they are subject to the rigours of martial law, as necessary to keep them in order. this is the constitutional security, which our laws have provided for the public peace, and for protecting the realm against foreign or domestic violence; and which the statutes[n] declare is essentially necessary to the safety and prosperity of the kingdom. [footnote m: car. ii. c. . car. ii. c. . car. ii. c. .] [footnote n: geo. ii. c. , &c.] when the nation is engaged in a foreign war, more veteran troops and more regular discipline may perhaps be necessary, than can be expected from a mere militia. and therefore at such times particular provisions have been usually made for the raising of armies and the due regulation and discipline of the soldiery: which are to be looked upon only as temporary excrescences bred out of the distemper of the state, and not as any part of the permanent and perpetual laws of the kingdom. for martial law, which is built upon no settled principles, but is entirely arbitrary in it's decisions, is, as sir matthew hale observes[o], in truth and reality no law, but something indulged, rather than allowed as a law: the necessity of order and discipline in an army is the only thing which can give it countenance; and therefore it ought not to be permitted in time of peace, when the king's courts are open for all persons to receive justice according to the laws of the land. wherefore edmond earl of kent being taken at pontefract, edw. ii. and condemned by martial law, his attainder was reversed edw. iii. because it was done in time of peace. and it is laid down[p], that if a lieutenant, or other, that hath commission of martial authority, doth in time of peace hang or otherwise execute any man by colour of martial law, this is murder; for it is against _magna carta_[q]. and the petition of right[r] enacts, that no soldier shall be quartered on the subject without his own consent[s]; and that no commission shall issue to proceed within this land according to martial law. and whereas, after the restoration, king charles the second kept up about five thousand regular troops, by his own authority, for guards and garrisons; which king james the second by degrees increased to no less than thirty thousand, all paid from his own civil list; it was made one of the articles of the bill of rights[t], that the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law. [footnote o: hist. c.l. c. .] [footnote p: inst. .] [footnote q: _cap._ .] [footnote r: car. i. see also stat. car. ii. c. .] [footnote s: thus, in poland, no soldier can be quartered upon the gentry, the only freemen in that republic. mod. univ. hist. xxxiv. .] [footnote t: stat. w. & m. st. . c. .] but, as the fashion of keeping standing armies has universally prevailed over all europe of late years (though some of it's potentates, being unable themselves to maintain them, are obliged to have recourse to richer powers, and receive subsidiary pensions for that purpose) it has also for many years past been annually judged necessary by our legislature, for the safety of the kingdom, the defence of the possessions of the crown of great britain, and the preservation of the balance of power in europe, to maintain even in time of peace a standing body of troops, under the command of the crown; who are however _ipso facto_ disbanded at the expiration of every year, unless continued by parliament. to prevent the executive power from being able to oppress, says baron montesquieu[u], it is requisite that the armies with which it is entrusted should consist of the people, and have the same spirit with the people; as was the case at rome, till marius new-modelled the legions by enlisting the rabble of italy, and laid the foundation of all the military tyranny that ensued. nothing then, according to these principles, ought to be more guarded against in a free state, than making the military power, when such a one is necessary to be kept on foot, a body too distinct from the people. like ours therefore, it should wholly be composed of natural subjects; it ought only to be enlisted for a short and limited time; the soldiers also should live intermixed with the people; no separate camp, no barracks, no inland fortresses should be allowed. and perhaps it might be still better, if, by dismissing a stated number and enlisting others at every renewal of their term, a circulation could be kept up between the army and the people, and the citizen and the soldier be more intimately connected together. [footnote u: sp. l. . .] to keep this body of troops in order, an annual act of parliament likewise passes, "to punish mutiny and desertion, and for the better payment of the army and their quarters." this regulates the manner in which they are to be dispersed among the several inn-keepers and victuallers throughout the kingdom; and establishes a law martial for their government. by this, among other things, it is enacted, that if any officer and soldier shall excite, or join any mutiny, or, knowing of it, shall not give notice to the commanding officer; or shall defect, or list in any other regiment, or sleep upon his post, or leave it before he is relieved, or hold correspondence with a rebel or enemy, or strike or use violence to his superior officer, or shall disobey his lawful commands; such offender shall suffer such punishment as a court martial shall inflict, though it extend to death itself. however expedient the most strict regulations may be in time of actual war, yet, in times of profound peace, a little relaxation of military rigour would not, one should hope, be productive of much inconvenience. and, upon this principle, though by our standing laws[w] (still remaining in force, though not attended to) desertion in time of war is made felony, without benefit of clergy, and the offence is triable by a jury and before the judges of the common law; yet, by our militia laws beforementioned, a much lighter punishment is inflicted for desertion in time of peace. so, by the roman law also, desertion in time of war was punished with death, but more mildly in time of tranquillity[x]. but our mutiny act makes no such distinction: for any of the faults therein mentioned are, equally at all times, punishable with death itself, if a court martial shall think proper. this discretionary power of the court martial is indeed to be guided by the directions of the crown; which, with regard to military offences, has almost an absolute legislative power. "his majesty, says the act, may form articles of war, and constitute courts martial, with power to try any crime by such articles, and inflict such penalties as the articles direct." a vast and most important trust! an unlimited power to create crimes, and annex to them any punishments, not extending to life or limb! these are indeed forbidden to be inflicted, except for crimes declared to be so punishable by this act; which crimes we have just enumerated, and, among which, we may observe that any disobedience to lawful commands is one. perhaps in some future revision of this act, which is in many respects hastily penned, it may be thought worthy the wisdom of parliament to ascertain the limits of military subjection, and to enact express articles of war for the government of the army, as is done for the government of the navy: especially as, by our present constitution, the nobility and gentry of the kingdom, who serve their country as militia officers, are annually subjected to the same arbitrary rule, during their time of exercise. [footnote w: stat. hen. vi. c. . & edw. vi. c. .] [footnote x: _ff._ . . .] one of the greatest advantages of our english law is, that not only the crimes themselves which it punishes, but also the penalties which it inflicts, are ascertained and notorious: nothing is left to arbitrary discretion: the king by his judges dispenses what the law has previously ordained; but is not himself the legislator. how much therefore is it to be regretted that a set of men, whose bravery has so often preserved the liberties of their country, should be reduced to a state of servitude in the midst of a nation of freemen! for sir edward coke will inform us[y], that it is one of the genuine marks of servitude, to have the law, which is our rule of action, either concealed or precarious: "_misera est servitus, ubi jus est vagum aut incognitum_." nor is this state of servitude quite consistent with the maxims of sound policy observed by other free nations. for, the greater the general liberty is which any state enjoys, the more cautious has it usually been of introducing slavery in any particular order or profession. these men, as baron montesquieu observes[z], seeing the liberty which others possess, and which they themselves are excluded from, are apt (like eunuchs in the eastern seraglios) to live in a state of perpetual envy and hatred towards the rest of the community; and indulge a malignant pleasure in contributing to destroy those privileges, to which they can never be admitted. hence have many free states, by departing from this rule, been endangered by the revolt of their slaves: while, in absolute and despotic governments where there no real liberty exists, and consequently no invidious comparisons can be formed, such incidents are extremely rare. two precautions are therefore advised to be observed in all prudent and free governments; . to prevent the introduction of slavery at all: or, . if it be already introduced, not to intrust those slaves with arms; who will then find themselves an overmatch for the freemen. much less ought the soldiery to be an exception to the people in general, and the only state of servitude in the nation. [footnote y: inst. .] [footnote z: sp. l. . .] but as soldiers, by this annual act, are thus put in a worse condition than any other subjects, so, by the humanity of our standing laws, they are in some cases put in a much better. by statute eliz. c. . a weekly allowance is to be raised in every county for the relief of soldiers that are sick, hurt, and maimed: not forgetting the royal hospital at chelsea for such as are worn out in their duty. officers and soldiers, that have been in the king's service, are by several statutes, enacted at the close of several wars, at liberty to use any trade or occupation they are fit for, in any town in the kingdom (except the two universities) notwithstanding any statute, custom, or charter to the contrary. and soldiers in actual military service may make their wills, and dispose of their goods, wages, and other personal chattels, without those forms, solemnities, and expenses, which the law requires in other cases[a]. our law does not indeed extend this privilege so far as the civil law; which carried it to an extreme that borders upon the ridiculous. for if a soldier, in the article of death, wrote any thing in bloody letters on his shield, or in the dust of the field with his sword, it was a very good military testament[b]. and thus much for the military state, as acknowleged by the laws of england. [footnote a: stat. car. ii. c. . w. iii. c. . §. .] [footnote b: _si milites quid in clypeo literis sanguine suo rutilantibus adnotaverint, aut in pulvere inscripserint gladio suo, ipso tempore quo, in praelio, vitae sortem derelinquunt, hujusmodi voluntatem stabilem esse oportet._ _cod._ . . .] the _maritime_ state is nearly related to the former; though much more agreeable to the principles of our free constitution. the royal navy of england hath ever been it's greatest defence and ornament: it is it's antient and natural strength; the floating bulwark of the island; an army, from which, however strong and powerful, no danger can ever be apprehended to liberty: and accordingly it has been assiduously cultivated, even from the earliest ages. to so much perfection was our naval reputation arrived in the twelfth century, that the code of maritime laws, which are called the laws of oleron, and are received by all nations in europe as the ground and substruction of all their marine constitutions, was confessedly compiled by our king richard the first, at the isle of oleron on the coast of france, then part of the possessions of the crown of england[c]. and yet, so vastly inferior were our ancestors in this point to the present age, that even in the maritime reign of queen elizabeth, sir edward coke[d] thinks it matter of boast, that the royal navy of england then consisted of _three and thirty_ ships. the present condition of our marine is in great measure owing to the salutary provisions of the statutes, called the navigation-acts; whereby the constant increase of english shipping and seamen was not only encouraged, but rendered unavoidably necessary. by the statute ric. ii. c. . in order to augment the navy of england, then greatly diminished, it was ordained, that none of the king's liege people should ship any merchandize out of or into the realm but only in ships of the king's ligeance, on pain of forfeiture. in the next year, by statute ric. ii. c. . this wise provision was enervated, by only obliging the merchants to give english ships, (if able and sufficient) the preference. but the most beneficial statute for the trade and commerce of these kingdoms is that navigation-act, the rudiments of which were first framed in [e], with a narrow partial view: being intended to mortify the sugar islands, which were disaffected to the parliament and still held out for charles ii, by stopping the gainful trade which they then carried on with the dutch[f]; and at the same time to clip the wings of those our opulent and aspiring neighbours. this prohibited all ships of foreign nations from trading with any english plantations without licence from the council of state. in [g] the prohibition was extended also to the mother country; and no goods were suffered to be imported into england, or any of it's dependencies, in any other than english bottoms; or in the ships of that european nation of which the merchandize imported was the genuine growth or manufacture. at the restoration, the former provisions were continued, by statute car. ii. c. . with this very material improvement, that the master and three fourths of the mariners shall also be english subjects. [footnote c: inst. . _coutumes de la mer._ .] [footnote d: inst. .] [footnote e: scobell .] [footnote f: mod. un. hist. xli. .] [footnote g: scobell. .] many laws have been made for the supply of the royal navy with seamen; for their regulation when on board; and to confer privileges and rewards on them during and after their service. . first, for their supply. the power of impressing men for the sea service by the king's commission, has been a matter of some dispute, and submitted to with great reluctance; though it hath very clearly and learnedly been shewn, by sir michael foster[h], that the practise of impressing, and granting powers to the admiralty for that purpose, is of very antient date, and hath been uniformly continued by a regular series of precedents to the present time: whence he concludes it to be part of the common law[i]. the difficulty arises from hence, that no statute has expressly declared this power to be in the crown, though many of them very strongly imply it. the statute ric. ii. c. . speaks of mariners being arrested and retained for the king's service, as of a thing well known, and practised without dispute; and provides a remedy against their running away. by a later statute[k], if any waterman, who uses the river thames, shall hide himself during the execution of any commission of pressing for the king's service, he is liable to heavy penalties. by another[l], no fisherman shall be taken by the queen's commission to serve as a mariner; but the commission shall be first brought to two justices of the peace, inhabiting near the sea coast where the mariners are to be taken, to the intent that the justices may chuse out and return such a number of ablebodied men, as in the commission are contained, to serve her majesty. and, by others[m], especial protections are allowed to seamen in particular circumstances, to prevent them from being impressed. all which do most evidently imply a power of impressing to reside somewhere; and, if any where, it must from the spirit of our constitution, as well as from the frequent mention of the king's commission, reside in the crown alone. [footnote h: rep. .] [footnote i: see also comb. .] [footnote k: stat. & ph. & m. c. .] [footnote l: stat. eliz. c. .] [footnote m: stat. & w. iii. c. . ann. c. . & ann. c. . geo. ii. c. . &c.] but, besides this method of impressing, (which is only defensible from public necessity, to which all private considerations must give way) there are other ways that tend to the increase of seamen, and manning the royal navy. parishes may bind out poor boys apprentices to masters of merchantmen, who shall be protected from impressing for the first three years; and if they are impressed afterwards, the masters shall be allowed their wages[n]: great advantages in point of wages are given to volunteer seamen in order to induce them to enter into his majesty's service[o]: and every foreign seaman, who during a war shall serve two years in any man of war, merchantman, or privateer, is naturalized _ipso facto_[p]. about the middle of king william's reign, a scheme was set on foot[q] for a register of seamen to the number of thirty thousand, for a constant and regular supply of the king's fleet; with great privileges to the registered men, and, on the other hand, heavy penalties in case of their non-appearance when called for: but this registry, being judged to be rather a badge of slavery, was abolished by statute ann. c. . [footnote n: stat. ann. c. .] [footnote o: stat. geo. ii. st. . c. .] [footnote p: stat. geo. ii. c. .] [footnote q: stat. & w. iii. c. .] . the method of ordering seamen in the royal fleet, and keeping up a regular discipline there, is directed by certain express rules, articles and orders, first enacted by the authority of parliament soon after the restoration[r]; but since new-modelled and altered, after the peace of aix la chapelle[s], to remedy some defects which were of fatal consequence in conducting the preceding war. in these articles of the navy almost every possible offence is set down, and the punishment thereof annexed: in which respect the seamen have much the advantage over their brethren in the land service; whose articles of war are not enacted by parliament, but framed from time to time at the pleasure of the crown. yet from whence this distinction arose, and why the executive power, which is limited so properly with regard to the navy, should be so extensive with regard to the army, it is hard to assign a reason: unless it proceeded from the perpetual establishment of the navy, which rendered a permanent law for their regulation expedient; and the temporary duration of the army, which subsisted only from year to year; and might therefore with less danger be subjected to discretionary government. but, whatever was apprehended at the first formation of the mutiny act, the regular renewal of our standing force at the entrance of every year has made this distinction idle. for, if from experience past we may judge of future events, the army is now lastingly ingrafted into the british constitution; with this singularly fortunate circumstance, that any branch of the legislature may annually put an end to it's legal existence, by refusing to concur in it's continuance. [footnote r: stat. car. ii. st. . c. .] [footnote s: stat. geo. ii. c. .] . with regard to the privileges conferred on sailors, they are pretty much the same with those conferred on soldiers; with regard to relief, when maimed, or wounded, or superannuate, either by county rates, or the royal hospital at greenwich; with regard also to the exercise of trades, and the power of making informal testaments: and, farther[t], no seaman aboard his majesty's ships can be arrested for any debt, unless the same be sworn to amount to at least twenty pounds; though, by the annual mutiny acts, a soldier may be arrested for a debt which extends to half that value, but not to a less amount. [footnote t: stat. geo. ii. st. . c. .] chapter the fourteenth. of master and servant. having thus commented on the rights and duties of persons, as standing in the _public_ relations of magistrates and people; the method i have marked out now leads me to consider their rights and duties in _private_ oeconomical relations. the three great relations in private life are, . that of _master and servant_; which is founded in convenience, whereby a man is directed to call in the assistance of others, where his own skill and labour will not be sufficient to answer the cares incumbent upon him. . that of _husband and wife_; which is founded in nature, but modified by civil society: the one directing man to continue and multiply his species, the other prescribing the manner in which that natural impulse must be confined and regulated. . that of _parent and child_, which is consequential to that of marriage, being it's principal end and design: and it is by virtue of this relation that infants are protected, maintained, and educated. but, since the parents, on whom this care is primarily incumbent, may be snatched away by death or otherwise, before they have completed their duty, the law has therefore provided a fourth relation; . that of _guardian and ward_, which is a kind of artificial parentage, in order to supply the deficiency, whenever it happens, of the natural. of all these relations in their order. in discussing the relation of _master and servant_, i shall, first, consider the several sorts of servants, and how this relation is created and destroyed: secondly, the effects of this relation with regard to the parties themselves: and, lastly, it's effect with regard to other persons. i. as to the several sorts of servants: i have formerly observed[a] that pure and proper slavery does not, nay cannot, subsist in england; such i mean, whereby an absolute and unlimited power is given to the master over the life and fortune of the slave. and indeed it is repugnant to reason, and the principles of natural law, that such a state should subsist any where. the three origins of the right of slavery assigned by justinian[b], are all of them built upon false foundations. as, first, slavery is held to arise "_jure gentium_," from a state of captivity in war; whence slaves are called _mancipia, quasi manu capti_. the conqueror, say the civilians, had a right to the life of his captive; and, having spared that, has a right to deal with him as he pleases. but it is an untrue position, when taken generally, that, by the law of nature or nations, a man may kill his enemy: he has only a right to kill him, in particular cases; in cases of absolute necessity, for self-defence; and it is plain this absolute necessity did not subsist, since the victor did not actually kill him, but made him prisoner. war is itself justifiable only on principles of self-preservation; and therefore it gives no other right over prisoners, but merely to disable them from doing harm to us, by confining their persons: much less can it give a right to kill, torture, abuse, plunder, or even to enslave, an enemy, when the war is over. since therefore the right of _making_ slaves by captivity, depends on a supposed right of slaughter, that foundation failing, the consequence drawn from it must fail likewise. but, secondly, it is said that slavery may begin "_jure civili_;" when one man sells himself to another. this, if only meant of contracts to serve or work for another, is very just: but when applied to strict slavery, in the sense of the laws of old rome or modern barbary, is also impossible. every sale implies a price, a _quid pro quo_, an equivalent given to the seller in lieu of what he transfers to the buyer: but what equivalent can be given for life, and liberty, both of which (in absolute slavery) are held to be in the master's disposal? his property also, the very price he seems to receive, devolves _ipso facto_ to his master, the instant he becomes his slave. in this case therefore the buyer gives nothing, and the seller receives nothing: of what validity then can a sale be, which destroys the very principles upon which all sales are founded? lastly, we are told, that besides these two ways by which slaves "_fiunt_," or are acquired, they may also be hereditary: "_servi nascuntur_;" the children of acquired slaves are, _jure naturae_, by a negative kind of birthright, slaves also. but this being built on the two former rights must fall together with them. if neither captivity, nor the sale of oneself, can by the law of nature and reason, reduce the parent to slavery, much less can it reduce the offspring. [footnote a: pag. .] [footnote b: _servi aut fiunt, aut nascuntur: fiunt jure gentium, aut jure civili: nascuntur ex ancillis nostris._ _inst._ . . .] upon these principles the law of england abhors, and will not endure the existence of, slavery within this nation: so that when an attempt was made to introduce it, by statute edw. vi. c. . which ordained, that all idle vagabonds should be made slaves, and fed upon bread, water, or small drink, and refuse meat; should wear a ring of iron round their necks, arms, or legs; and should be compelled by beating, chaining, or otherwise, to perform the work assigned them, were it never so vile; the spirit of the nation could not brook this condition, even in the most abandoned rogues; and therefore this statute was repealed in two years afterwards[c]. and now it is laid down[d], that a slave or negro, the instant he lands in england, becomes a freeman; that is, the law will protect him in the enjoyment of his person, his liberty, and his property. yet, with regard to any right which the master may have acquired, by contract or the like, to the perpetual service of john or thomas, this will remain exactly in the same state as before: for this is no more than the same state of subjection for life, which every apprentice submits to for the space of seven years, or sometimes for a longer term. hence too it follows, that the infamous and unchristian practice of withholding baptism from negro servants, lest they should thereby gain their liberty, is totally without foundation, as well as without excuse. the law of england acts upon general and extensive principles: it gives liberty, rightly understood, that is, protection, to a jew, a turk, or a heathen, as well as to those who profess the true religion of christ; and it will not dissolve a civil contract, either express or implied, between master and servant, on account of the alteration of faith in either of the contracting parties: but the slave is entitled to the same liberty in england before, as after, baptism; and, whatever service the heathen negro owed to his english master, the same is he bound to render when a christian. [footnote c: stat. & edw. vi. c. .] [footnote d: salk. .] . the first sort of servants therefore, acknowleged by the laws of england, are _menial servants_; so called from being _intra moenia_, or domestics. the contract between them and their masters arises upon the hiring. if the hiring be general without any particular time limited, the law construes it to be a hiring for a year[e]; upon a principle of natural equity, that the servant shall serve, and the master maintain him, throughout all the revolutions of the respective seasons; as well when there is work to be done, as when there is not[f]: but the contract may be made for any larger or smaller term. all single men between twelve years old and sixty, and married ones under thirty years of age, and all single women between twelve and forty, not having any visible livelihood, are compellable by two justices to go out to service, for the promotion of honest industry: and no master can put away his servant, or servant leave his master, either before or at the end of his term, without a quarter's warning; unless upon reasonable cause to be allowed by a justice of the peace[g]: but they may part by consent, or make a special bargain. [footnote e: co. litt. .] [footnote f: f.n.b. .] [footnote g: stat. eliz. c. .] . another species of servants are called _apprentices_ (from _apprendre_, to learn) and are usually bound for a term of years, by deed indented or indentures, to serve their masters, and be maintained and instructed by them: for which purpose our statute law[h] has made minors capable of binding themselves. this is usually done to persons of trade, in order to learn their art and mystery; and sometimes very large sums are given with them, as a premium for such their instruction: but it may be done to husbandmen, nay to gentlemen, and others. and[i] children of poor persons may be apprenticed out by the overseers, with consent of two justices, till twenty four years of age, to such persons as are thought fitting; who are also compellable to take them: and it is held, that gentlemen of fortune, and clergymen, are equally liable with others to such compulsion[k]. apprentices to trades may be discharged on reasonable cause, either at request of themselves or masters, at the quarter sessions, or by one justice, with appeal to the sessions[l]: who may, by the equity of the statute, if they think it reasonable, direct restitution of a ratable share of the money given with the apprentice[m]. and parish apprentices may be discharged in the same manner, by two justices[n]. [footnote h: stat. eliz. c. .] [footnote i: stat. eliz. c. . eliz. c. . jac. i. c. . jac. i. c. . & w. & m. c. . & ann. c. . ann. c. . geo. ii. c. .] [footnote k: salk. . .] [footnote l: stat. eliz. c. .] [footnote m: salk. .] [footnote n: stat. geo. ii. c. .] . a third species of servants are _labourers_, who are only hired by the day or the week, and do not live _intra moenia_, as part of the family; concerning whom the statute so often cited[o] has made many very good regulations; . directing that all persons who have no visible effects may be compelled to work: . defining how long they must continue at work in summer and winter: . punishing such as leave or desert their work: . empowering the justices at sessions, or the sheriff of the county, to settle their wages: and . inflicting penalties on such as either give, or exact, more wages than are so settled. [footnote o: stat. eliz. c. .] . there is yet a fourth species of servants, if they may be so called, being rather in a superior, a ministerial, capacity; such as _stewards_, _factors_, and _bailiffs_: whom however the law considers as servants _pro tempore_, with regard to such of their acts, as affect their master's or employer's property. which leads me to consider, ii. the manner in which this relation, of service, affects either the master or servant. and, first, by hiring and service for a year, or apprenticeship under indentures, a person gains a settlement in that parish wherein he last served forty days[p]. in the next place persons serving as apprentices to any trade have an exclusive right to exercise that trade in any part of england[q]. this law, with regard to the exclusive part of it, has by turns been looked upon as a hard law, or as a beneficial one, according to the prevailing humour of the times: which has occasioned a great variety of resolutions in the courts of law concerning it; and attempts have been frequently made for it's repeal, though hitherto without success. at common law every man might use what trade he pleased; but this statute restrains that liberty to such as have served as apprentices: the adversaries to which provision say, that all restrictions (which tend to introduce monopolies) are pernicious to trade; the advocates for it alledge, that unskilfulness in trades is equally detrimental to the public, as monopolies. this reason indeed only extends to such trades, in the exercise whereof skill is required: but another of their arguments goes much farther; viz. that apprenticeships are useful to the commonwealth, by employing of youth, and learning them to be early industrious; but that no one would be induced to undergo a seven years servitude, if others, though equally skilful, were allowed the same advantages without having undergone the same discipline: and in this there seems to be much reason. however, the resolutions of the courts have in general rather confined than extended the restriction. no trades are held to be within the statute, but such as were in being at the making of it[r]: for trading in a country village, apprenticeships are not requisite[s]: and following the trade seven years is sufficient without any binding; for the statute only says, the person must serve _as_ an apprentice, and does not require an actual apprenticeship to have existed[t]. [footnote p: see page .] [footnote q: stat. eliz. c. .] [footnote r: lord raym. .] [footnote s: ventr. . keb. .] [footnote t: lord raym. .] a master may by law correct his apprentice or servant for negligence or other misbehaviour, so it be done with moderation[u]: though, if the master's wife beats him, it is good cause of departure[w]. but if any servant, workman, or labourer assaults his master or dame, he shall suffer one year's imprisonment, and other open corporal punishment, not extending to life or limb[x]. [footnote u: hawk. p.c. . lamb. eiren. .] [footnote w: f.n.b. .] [footnote x: stat. eliz. c. .] by service all servants and labourers, except apprentices, become entitled to wages: according to their agreement, if menial servants; or according to the appointment of the sheriff or sessions, if labourers or servants in husbandry: for the statutes for regulation of wages extend to such servants only[y]; it being impossible for any magistrate to be a judge of the employment of menial servants, or of course to assess their wages. [footnote y: jones. .] iii. let us, lastly, see how strangers may be affected by this relation of master and servant: or how a master may behave towards others on behalf of his servant; and what a servant may do on behalf of his master. and, first, the master may _maintain_, that is, abet and assist his servant in any action at law against a stranger: whereas, in general, it is an offence against public justice to encourage suits and animosities, by helping to bear the expense of them, and is called in law maintenance[z]. a master also may bring an action against any man for beating or maiming his servant; but in such case he must assign, as a special reason for so doing, his own damage by the loss of his service; and this loss must be proved upon the trial[a]. a master likewise may justify an assault in defence of his servant, and a servant in defence of his master[b]: the master, because he has an interest in his servant, not to be deprived of his service; the servant, because it is part of his duty, for which he receives his wages, to stand by and defend his master[c]. also if any person do hire or retain my servant, being in my service, for which the servant departeth from me and goeth to serve the other, i may have an action for damages against both the new master and the servant, or either of them: but if the new master did not know that he is my servant, no action lies; unless he afterwards refuse to restore him upon information and demand[d]. the reason and foundation upon which all this doctrine is built, seem to be the property that every man has in the service of his domestics; acquired by the contract of hiring, and purchased by giving them wages. [footnote z: roll. abr. .] [footnote a: rep. .] [footnote b: roll. abr. .] [footnote c: in like manner, by the laws of king alfred, c. . a servant was allowed to fight for his master, a parent for his child, and a husband or father for the chastity of his wife or daughter.] [footnote d: f.n.b. , .] as for those things which a servant may do on behalf of his master, they seem all to proceed upon this principle, that the master is answerable for the act of his servant, if done by his command, either expressly given, or implied: _nam qui facit per alium, facit per se_[e]. therefore, if the servant commit a trespass by the command or encouragement of his master, the master shall be guilty of it: not that the servant is excused, for he is only to obey his master in matters that are honest and lawful. if an innkeeper's servants rob his guests, the master is bound to restitution[f]: for as there is a confidence reposed in him, that he will take care to provide honest servants, his negligence is a kind of implied consent to the robbery; _nam, qui non prohibet, cum prohibere possit, jubet_. so likewise if the drawer at a tavern sells a man bad wine, whereby his health is injured, he may bring an action against the master[g]: for, although the master did not expressly order the servant to sell it to that person in particular, yet his permitting him to draw and sell it at all is impliedly a general command. [footnote e: inst. .] [footnote f: noy's max. c. .] [footnote g: roll. abr. .] in the same manner, whatever a servant is permitted to do in the usual course of his business, is equivalent to a general command. if i pay money to a banker's servant, the banker is answerable for it: if i pay it to a clergyman's or a physician's servant, whose usual business it is not to receive money for his master, and he imbezzles it, i must pay it over again. if a steward lets a lease of a farm, without the owner's knowlege, the owner must stand to the bargain; for this is the steward's business. a wife, a friend, a relation, that use to transact business for a man, are _quoad hoc_ his servants; and the principal must answer for their conduct: for the law implies, that they act under a general command; and, without such a doctrine as this, no mutual intercourse between man and man could subsist with any tolerable convenience. if i usually deal with a tradesman by myself, or constantly pay him ready money, i am not answerable for what my servant takes up upon trust; for here is no implied order to the tradesman to trust my servant: but if i usually send him upon trust, or sometimes on trust, and sometimes with ready money, i am answerable for all he takes up; for the tradesman cannot possibly distinguish when he comes by my order, and when upon his own authority[h]. [footnote h: dr & stud. d. . c. . noy's max. c. .] if a servant, lastly, by his negligence does any damage to a stranger, the master shall answer for his neglect: if a smith's servant lames a horse while he is shoing him, an action lies against the master, and not against the servant. but in these cases the damage must be done, while he is actually employed in the master's service; otherwise the servant shall answer for his own misbehaviour. upon this principle, by the common law[i], if a servant kept his master's fire negligently, so that his neighbour's house was burned down thereby, an action lay against the master; because this negligence happened in his service: otherwise, if the servant, going along the street with a torch, by negligence sets fire to a house; for there he is not in his master's immediate service, and must himself answer the damage personally. but now the common law is, in the former case, altered by statute ann. c. . which ordains that no action shall be maintained against any, in whose house or chamber any fire shall accidentally begin; for their own loss is sufficient punishment for their own or their servants' carelessness. but if such fire happens through negligence of any servant (whose loss is commonly very little) such servant shall forfeit _l_, to be distributed among the sufferers; and, in default of payment, shall be committed to some workhouse and there kept to hard labour for eighteen months[k]. a master is, lastly, chargeable if any of his family layeth or casteth any thing out of his house into the street or common highway, to the damage of any individual, or the common nusance of his majesty's liege people[l]: for the master hath the superintendance and charge of all his houshold. and this also agrees with the civil law[m]; which holds, that the _pater familias_, in this and similar cases, "_ob alterius culpam tenetur, sive servi, sive liberi_." [footnote i: noy's max. c. .] [footnote k: upon a similar principle, by the law of the twelve tables at rome, a person by whose negligence any fire began was bound to pay double to the sufferers; or if he was not able to pay, was to suffer a corporal punishment.] [footnote l: noy's max. c. .] [footnote m: _ff._ . . . _inst._ . . .] we may observe, that in all the cases here put, the master may be frequently a loser by the trust reposed in his servant, but never can be a gainer: he may frequently be answerable for his servant's misbehaviour, but never can shelter himself from punishment by laying the blame on his agent. the reason of this is still uniform and the same; that the wrong done by the servant is looked upon in law as the wrong of the master himself; and it is a standing maxim, that no man shall be allowed to make any advantage of his own wrong. chapter the fifteenth. of husband and wife. the second private relation of persons is that of marriage, which includes the reciprocal duties of husband and wife; or, as most of our elder law books call them, of _baron_ and _feme_. in the consideration of which i shall in the first place enquire, how marriages may be contracted or made; shall next point out the manner in which they may be dissolved; and shall, lastly, take a view of the legal effects and consequence of marriage. i. our law considers marriage in no other light than as a civil contract. the _holiness_ of the matrimonial state is left entirely to the ecclesiastical law: the temporal courts not having jurisdiction to consider unlawful marriages as a sin, but merely as a civil inconvenience. the punishment therefore, or annulling, of incestuous or other unscriptural marriages, is the province of the spiritual courts; which act _pro salute animae_[a]. and, taking it in this civil light, the law treats it as it does all other contracts; allowing it to be good and valid in all cases, where the parties at the time of making it were, in the first place, _willing_ to contract; secondly, _able_ to contract; and, lastly, actually _did_ contract, in the proper forms and solemnities required by law. [footnote a: salk. .] first, they must be _willing_ to contract. "_consensus, non concubitus, facit nuptias_," is the maxim of the civil law in this case[b]: and it is adopted by the common lawyers[c], who indeed have borrowed (especially in antient times) almost all their notions of the legitimacy of marriage from the canon and civil laws. [footnote b: _ff._ . . .] [footnote c: co. litt. .] secondly, they must be _able_ to contract. in general, all persons are able to contract themselves in marriage, unless they labour under some particular disabilities, and incapacities. what those are, it will here be our business to enquire. now these disabilities are of two sorts: first, such as are canonical, and therefore sufficient by the ecclesiastical laws to avoid the marriage in the spiritual court; but these in our law only make the marriage voidable, and not _ipso facto_ void, until sentence of nullity be obtained. of this nature are pre-contract; consanguinity, or relation by blood; and affinity, or relation by marriage; and some particular corporal infirmities. and these canonical disabilities are either grounded upon the express words of the divine law, or are consequences plainly deducible from thence: it therefore being sinful in the persons, who labour under them, to attempt to contract matrimony together, they are properly the object of the ecclesiastical magistrate's coercion; in order to separate the offenders, and inflict penance for the offence, _pro salute animarum_. but such marriages not being void _ab initio_, but voidable only by sentence of separation, they are esteemed valid to all civil purposes, unless such separation is actually made during the life of the parties. for, after the death of either of them, the courts of common law will not suffer the spiritual court to declare such marriages to have been void; because such declaration cannot now tend to the reformation of the parties[d]. and therefore when a man had married his first wife's sister, and after her death the bishop's court was proceeding to annul the marriage and bastardize the issue, the court of king's bench granted a prohibition _quoad hoc_; but permitted them to proceed to punish the husband for incest[e]. these canonical disabilities, being entirely the province of the ecclesiastical courts, our books are perfectly silent concerning them. but there are a few statutes, which serve as directories to those courts, of which it will be proper to take notice. by statute hen. viii. c. . it is declared, that all persons may lawfully marry, but such as are prohibited by god's law; and that all marriages contracted by lawful persons in the face of the church, and consummate with bodily knowlege, and fruit of children, shall be indissoluble. and (because in the times of popery a great variety of degrees of kindred were made impediments to marriage, which impediments might however be bought off for money) it is declared by the same statute, that nothing (god's law except) shall impeach any marriage, but within the levitical degrees; the farthest of which is that between uncle and niece[f]. by the same statute all impediments, arising from pre-contracts to other persons, were abolished and declared of none effect, unless they had been consummated with bodily knowlege: in which case the canon law holds such contract to be a marriage _de facto_. but this branch of the statute was repealed by statute & edw. vi. c. . how far the act of geo. ii. c. . (which prohibits all suits in ecclesiastical courts to compel a marriage, in consequence of any contract) may collaterally extend to revive this clause of henry viii's statute, and abolish the impediment of pre-contract, i leave to be considered by the canonists. [footnote d: _ibid._] [footnote e: salk. .] [footnote f: gilb. rep. .] the other sort of disabilities are those which are created, or at least enforced, by the municipal laws. and, though some of them may be grounded on natural law, yet they are regarded by the laws of the land, not so much in the light of any moral offence, as on account of the civil inconveniences they draw after them. these civil disabilities make the contract void _ab initio_, and not merely voidable: not that they dissolve a contract already formed, but they render the parties incapable of forming any contract at all: they do not put asunder those who are joined together, but they previously hinder the junction. and, if any persons under these legal incapacities come together, it is a meretricious, and not a matrimonial, union. . the first of these legal disabilities is a prior marriage, or having another husband or wife living; in which case, besides the penalties consequent upon it as a felony, the second marriage is to all intents and purposes void[g]: polygamy being condemned both by the law of the new testament, and the policy of all prudent states, especially in these northern climates. and justinian, even in the climate of modern turkey, is express[h], that "_duas uxores eodem tempore habere non licet_." [footnote g: bro. abr. _tit. bastardy._ pl. .] [footnote h: _inst._ . . .] . the next legal disability is want of age. this is sufficient to avoid all other contracts, on account of the imbecillity of judgment in the parties contracting; _a fortiori_ therefore it ought to avoid this, the most important contract of any. therefore if a boy under fourteen, or a girl under twelve years of age, marries, this marriage is only inchoate and imperfect; and, when either of them comes to the age of consent aforesaid, they may disagree and declare the marriage void, without any divorce or sentence in the spiritual court. this is founded on the civil law[i]. but the canon law pays a greater regard to the constitution, than the age, of the parties[k]: for if they are _habiles ad matrimonium_, it is a good marriage, whatever their age may be. and in our law it is so far a marriage, that, if at the age of consent they agree to continue together, they need not be married again[l]. if the husband be of years of discretion, and the wife under twelve, when she comes to years of discretion he may disagree as well as she may: for in contracts the obligation must be mutual; both must be bound, or neither: and so it is, _vice versa_, when the wife is of years of discretion, and the husband under[m]. [footnote i: _leon. constit._ .] [footnote k: _decretal._ _l._ . _tit._ . _qu._ .] [footnote l: co. litt. .] [footnote m: _ibid._] . another incapacity arises from want of consent of parents or guardians. by the common law, if the parties themselves were of the age of consent, there wanted no other concurrence to make the marriage valid: and this was agreeable to the canon law. but, by several statutes[n], penalties of _l._ are laid on every clergyman who marries a couple either without publication of banns (which may give notice to parents or guardians) or without a licence, to obtain which the consent of parents or guardians must be sworn to. and by the statute & ph. & m. c. . whosoever marries any woman child under the age of sixteen years, without consent of parents or guardians, shall be subject to fine, or five years imprisonment: and her estate during the husband's life shall go to and be enjoyed by the next heir. the civil law indeed required the consent of the parent or tutor at all ages; unless the children were emancipated, or out of the parents power[o]: and, if such consent from the father was wanting, the marriage was null, and the children illegitimate[p]; but the consent of the mother or guardians, if unreasonably withheld, might be redressed and supplied by the judge, or the president of the province[q]: and if the father was _non compos_, a similar remedy was given[r]. these provisions are adopted and imitated by the french and hollanders, with this difference: that in france the sons cannot marry without consent of parents till thirty years of age, nor the daughters till twenty five[s]; and in holland, the sons are at their own disposal at twenty five, and the daughters at twenty[t]. thus hath stood, and thus at present stands, the law in other neighbouring countries. and it has been lately thought proper to introduce somewhat of the same policy into our laws, by statute geo. ii. c. . whereby it is enacted, that all marriages celebrated by licence (for banns suppose notice) where either of the parties is under twenty one, (not being a widow or widower, who are supposed emancipated) without the consent of the father, or, if he be not living, of the mother or guardians, shall be absolutely void. a like provision is made as in the civil law, where the mother or guardian is _non compos_, beyond sea, or unreasonably froward, to dispense with such consent at the discretion of the lord chancellor: but no provision is made, in case the father should labour under any mental or other incapacity. much may be, and much has been, said both for and against this innovation upon our antient laws and constitution. on the one hand, it prevents the clandestine marriages of minors, which are often a terrible inconvenience to those private families wherein they happen. on the other hand, restraints upon marriage, especially among the lower class, are evidently detrimental to the public, by hindering the encrease of people; and to religion and morality, by encouraging licentiousness and debauchery among the single of both sexes; and thereby destroying one end of society and government, which is, _concubitu prohibere vago_. and of this last inconvenience the roman laws were so sensible, that at the same time that they forbad marriage without the consent of parents or guardians, they were less rigorous upon that very account with regard to other restraints: for, if a parent did not provide a husband for his daughter, by the time she arrived at the age of twenty five, and she afterwards made a slip in her conduct, he was not allowed to disinherit her upon that account; "_quia non sua culpa, sed parentum, id commisisse cognoscitur_[u]." [footnote n: & w. iii. c. . & w. iii. c. . ann. c. .] [footnote o: _ff._ . . , & .] [footnote p: _ff._ . . .] [footnote q: _cod._ . . , & .] [footnote r: _inst._ . . .] [footnote s: domat, of dowries §. . montesq. sp. l. . .] [footnote t: _vinnius in inst._ _l._ . _t._ .] [footnote u: _nov._ . §. .] . a fourth incapacity is want of reason; without a competent share of which, as no other, so neither can the matrimonial contract, be valid. idiots and lunatics, by the old common law, might have married[w]; wherein it was manifestly defective. the civil law judged much more sensibly, when it made such deprivations of reason a previous impediment; though not a cause of divorce, if they happened after marriage[x]. this defect in our laws is however remedied with regard to lunatics, and persons under frenzies, by the express words of the statute geo. ii. c. . and idiots, if not within the letter of the statute, are at least within the reason of it. [footnote w: roll. abr. .] [footnote x: _ff._ . _tit._ . _l._ . & _tit._ . _l._ .] lastly, the parties must not only be willing, and able, to contract, but actually must contract themselves in due form of law, to make it a good civil marriage. any contract made, _per verba de praesenti_, or in words of the present tense, and in case of cohabitation _per verba de futuro_ also, between persons able to contract, was before the late act deemed a valid marriage to many purposes; and the parties might be compelled in the spiritual courts to celebrate it _in facie ecclesiae_. but these verbal contracts are now of no force, to compel a future marriage[y]. neither is any marriage at present valid, that is not celebrated in some parish church or public chapel, unless by dispensation from the arch-bishop of canterbury. it must also be preceded by publication of banns, or by licence from the spiritual judge. many other formalities are likewise prescribed by the act; the neglect of which, though penal, does not invalidate the marriage. it is held to be also essential to a marriage, that it be performed by a person in orders[z]; though the intervention of a priest to solemnize this contract is merely _juris positivi_, and not _juris naturalis aut divini_: it being said that pope innocent the third was the first who ordained the celebration of marriage in the church[a]; before which it was totally a civil contract. and, in the times of the grand rebellion, all marriages were performed by the justices of the peace; and these marriages were declared valid, without any fresh solemnization, by statute car. ii. c. . but, as the law now stands, we may upon the whole collect, that no marriage by the temporal law is _ipso facto_ void, that is celebrated by a person in orders,--in a parish church or public chapel (or elsewhere, by special dispensation)--in pursuance of banns or a licence,--between single persons,--consenting,--of sound mind,--and of the age of twenty one years;--or of the age of fourteen in males and twelve in females, with consent of parents or guardians, or without it, in case of widowhood. and no marriage is _voidable_ by the ecclesiastical law, after the death of either of the parties; nor during their lives, unless for the canonical impediments of pre-contract, if that indeed still exists; of consanguinity; and of affinity, or corporal imbecillity, subsisting previous to the marriage. [footnote y: stat. geo. ii. c. .] [footnote z: salk. .] [footnote a: moor .] ii. i am next to consider the manner in which marriages may be dissolved; and this is either by death, or divorce. there are two kinds of divorce, the one total, the other partial; the one _a vinculo matrimonii_, the other merely _a mensa et thoro_. the total divorce, _a vinculo matrimonii_, must be for some of the canonical causes of impediment before-mentioned; and those, existing _before_ the marriage, as is always the case in consanguinity; not supervenient, or arising _afterwards_, as may be the case in affinity or corporal imbecillity. for in cases of total divorce, the marriage is declared null, as having been absolutely unlawful _ab initio_; and the parties are therefore separated _pro salute animarum_: for which reason, as was before observed, no divorce can be obtained, but during the life of the parties. the issue of such marriage, as is thus entirely dissolved, are bastards[b]. [footnote b: co. litt. .] divorce _a mensa et thoro_ is when the marriage is just and lawful _ab initio_, and therefore the law is tender of dissolving it; but, for some supervenient cause, it becomes improper or impossible for the parties to live together: as in the case of intolerable ill temper, or adultery, in either of the parties. for the canon law, which the common law follows in this case, deems so highly and with such mysterious reverence of the nuptial tie, that it will not allow it to be unloosed for any cause whatsoever, that arises after the union is made. and this is said to be built on the divine revealed law; though that expressly assigns incontinence as a cause, and indeed the only cause, why a man may put away his wife and marry another[c]. the civil law, which is partly of pagan original, allows many causes of absolute divorce; and some of them pretty severe ones, (as if a wife goes to the theatre or the public games, without the knowlege and consent of the husband[d]) but among them adultery is the principal, and with reason named the first[e]. but with us in england adultery is only a cause of separation from bed and board[f]: for which the best reason that can be given, is, that if divorces were allowed to depend upon a matter within the power of either the parties, they would probably be extremely frequent; as was the case when divorces were allowed for canonical disabilities, on the mere confession of the parties[g], which is now prohibited by the canons[h]. however, divorces _a vinculo matrimonii_, for adultery, have of late years been frequently granted by act of parliament. [footnote c: matt. xix. .] [footnote d: _nov._ .] [footnote e: _cod._ . . .] [footnote f: moor .] [footnote g: mod. .] [footnote h: can. c. .] in case of divorce _a mensa et thoro_, the law allows alimony to the wife; which is that allowance, which is made to a woman for her support out of the husband's estate; being settled at the discretion of the ecclesiastical judge, on consideration of all the circumstances of the case. this is sometimes called her _estovers_; for which, if he refuses payment, there is (besides the ordinary process of excommunication) a writ at common law _de estoveriis habendis_, in order to recover it[i]. it is generally proportioned to the rank and quality of the parties. but in case of elopement, and living with an adulterer, the law allows her no alimony[k]. [footnote i: lev. .] [footnote k: cowel. tit. alimony.] iii. having thus shewn how marriages may be made, or dissolved, i come now, lastly, to speak of the legal consequences of such making, or dissolution. by marriage, the husband and wife are one person in law[l]: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and _cover_, she performs every thing; and is therefore called in our law-french a _feme-covert_; is said to be _covert-baron_, or under the protection and influence of her husband, her _baron_, or lord; and her condition during her marriage is called her _coverture_. upon this principle, of an union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. i speak not at present of the rights of property, but of such as are merely _personal_. for this reason, a man cannot grant any thing to his wife, or enter into covenant with her[m]: for the grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself: and therefore it is also generally true, that all compacts made between husband and wife, when single, are voided by the intermarriage[n]. a woman indeed may be attorney for her husband[o]; for that implies no separation from, but is rather a representation of, her lord. and a husband may also bequeath any thing to his wife by will; for that cannot take effect till the coverture is determined by his death[p]. the husband is bound to provide his wife with necessaries by law, as much as himself; and if she contracts debts for them, he is obliged to pay them[q]: but for any thing besides necessaries, he is not chargeable[r]. also if a wife elopes, and lives with another man, the husband is not chargeable even for necessaries[s]; at least if the person, who furnishes them, is sufficiently apprized of her elopement[t]. if the wife be indebted before marriage, the husband is bound afterwards to pay the debt; for he has adopted her and her circumstances together[u]. if the wife be injured in her person or her property, she can bring no action for redress without her husband's concurrence, and in his name, as well as her own[w]: neither can she be sued, without making the husband a defendant[x]. there is indeed one case where the wife shall sue and be sued as a feme sole, viz. where the husband has abjured the realm, or is banished[y]: for then he is dead in law; and, the husband being thus disabled to sue for or defend the wife, it would be most unreasonable if she had no remedy, or could make no defence at all. in criminal prosecutions, it is true, the wife may be indicted and punished separately[z]; for the union is only a civil union. but, in trials of any sort, they are not allowed to be evidence for, or against, each other[a]: partly because it is impossible their testimony should be indifferent; but principally because of the union of person: and therefore, if they were admitted to be witnesses _for_ each other, they would contradict one maxim of law, "_nemo in propria causa testis esse debet_;" and if _against_ each other, they would contradict another maxim, "_nemo tenetur seipsum accusare_." but where the offence is directly against the person of the wife, this rule has been usually dispensed with[b]: and therefore, by statute hen. vii. c. . in case a woman be forcibly taken away, and married, she may be a witness against such her husband, in order to convict him of felony. for in this case she can with no propriety be reckoned his wife; because a main ingredient, her consent, was wanting to the contract: and also there is another maxim of law, that no man shall take advantage of his own wrong; which the ravisher here would do, if by forcibly marrying a woman, he could prevent her from being a witness, who is perhaps the only witness, to that very fact. [footnote l: co. litt. .] [footnote m: _ibid._] [footnote n: cro. car. .] [footnote o: f.n.b. .] [footnote p: co. litt. .] [footnote q: salk. .] [footnote r: sid. .] [footnote s: stra. .] [footnote t: lev. .] [footnote u: mod. .] [footnote w: salk. . roll. abr. .] [footnote x: leon. . this was also the practice in the courts of athens. (pott. antiqu. b. . c. .)] [footnote y: co. litt. .] [footnote z: hawk. p.c. .] [footnote a: haw. p.c. .] [footnote b: state trials, vol. . lord audley's case. stra. .] in the civil law the husband and wife are considered as two distinct persons; and may have separate estates, contracts, debts, and injuries[c]: and therefore, in our ecclesiastical courts, a woman may sue and be sued without her husband[d]. [footnote c: _cod._ . . .] [footnote d: roll. abr. .] but, though our law in general considers man and wife as one person, yet there are some instances in which she is separately considered; as inferior to him, and acting by his compulsion. and therefore all deeds executed, and acts done, by her, during her coverture, are void, or at least voidable; except it be a fine, or the like matter of record, in which case she must be solely and secretly examined, to learn if her act be voluntary[e]. she cannot by will devise lands to her husband, unless under special circumstances; for at the time of making it she is supposed to be under his coercion[f]. and in some felonies, and other inferior crimes, committed by her, through constraint of her husband, the law excuses her[g]: but this extends not to treason or murder. [footnote e: litt. §. , .] [footnote f: co. litt. .] [footnote g: hawk. p.c. .] the husband also (by the old law) might give his wife moderate correction[h]. for, as he is to answer for her misbehaviour, the law thought it reasonable to intrust him with this power of restraining her, by domestic chastisement, in the same moderation that a man is allowed to correct his servants or children; for whom the master or parent is also liable in some cases to answer. but this power of correction was confined within reasonable bounds[i]; and the husband was prohibited to use any violence to his wife, _aliter quam ad virum, ex causa regiminis et castigationis uxoris suae, licite et rationabiliter pertinet_[k]. the civil law gave the husband the same, or a larger, authority over his wife; allowing him, for some misdemesnors, _flagellis et fustibus acriter verberare uxorem_; for others, only _modicam castigationem adhibere_[l]. but, with us, in the politer reign of charles the second, this power of correction began to be doubted[m]: and a wife may now have security of the peace against her husband[n]; or, in return, a husband against his wife[o]. yet the lower rank of people, who were always fond of the old common law, still claim and exert their antient privilege: and the courts of law will still permit a husband to restrain a wife of her liberty, in case of any gross misbehaviour[p]. [footnote h: _ibid._ .] [footnote i: moor. .] [footnote k: f.n.b. .] [footnote l: _nov._ . _c._ . & van leeuwen _in loc._] [footnote m: sid. . keb. .] [footnote n: lev. .] [footnote o: stra. .] [footnote p: stra. . .] these are the chief legal effects of marriage during the coverture; upon which we may observe, that even the disabilities, which the wife lies under, are for the most part intended for her protection and benefit. so great a favourite is the female sex of the laws of england. chapter the sixteenth. of parent and child. the next, and the most universal relation in nature, is immediately derived from the preceding, being that between parent and child. children are of two sorts; legitimate, and spurious, or bastards: each of which we shall consider in their order; and first of legitimate children. i. a legitimate child is he that is born in lawful wedlock, or within a competent time afterwards. "_pater est quem nuptiae demonstrant_," is the rule of the civil law[a]; and this holds with the civilians, whether the nuptials happen before, or after, the birth of the child. with us in england the rule is narrowed, for the nuptials must be precedent to the birth; of which more will be said when we come to consider the case of bastardy. at present let us enquire into, . the legal duties of parents to their legitimate children. . their power over them. . the duties of such children to their parents. [footnote a: _ff._ . . .] . and, first, the duties of parents to legitimate children: which principally consist in three particulars; their maintenance, their protection, and their education. the duty of parents to provide for the _maintenance_ of their children is a principle of natural law; an obligation, says puffendorf[b], laid on them not only by nature herself, but by their own proper act, in bringing them into the world: for they would be in the highest manner injurious to their issue, if they only gave the children life, that they might afterwards see them perish. by begetting them therefore they have entered into a voluntary obligation, to endeavour, as far as in them lies, that the life which they have bestowed shall be supported and preserved. and thus the children will have a perfect _right_ of receiving maintenance from their parents. and the president montesquieu[c] has a very just observation upon this head: that the establishment of marriage in all civilized states is built on this natural obligation of the father to provide for his children; for that ascertains and makes known the person who is bound to fulfil this obligation: whereas, in promiscuous and illicit conjunctions, the father is unknown; and the mother finds a thousand obstacles in her way;--shame, remorse, the constraint of her sex, and the rigor of laws;--that stifle her inclinations to perform this duty: and besides, she generally wants ability. [footnote b: l. of n. l. . c. .] [footnote c: sp. l. l. . c. .] the municipal laws of all well-regulated states have taken care to enforce this duty: though providence has done it more effectually than any laws, by implanting in the breast of every parent that natural [greek: storgê], or insuperable degree of affection, which not even the deformity of person or mind, not even the wickedness, ingratitude, and rebellion of children, can totally suppress or extinguish. the civil law[d] obliges the parent to provide maintenance for his child; and, if he refuses, "_judex de ea re cognoscet_." nay, it carries this matter so far, that it will not suffer a parent at his death totally to disinherit his child, without expressly giving his reason for so doing; and there are fourteen such reasons reckoned up[e], which may justify such disinherison. if the parent alleged no reason, or a bad, or false one, the child might set the will aside, _tanquam testamentum inofficiosum_, a testament contrary to the natural duty of the parent. and it is remarkable under what colour the children were to move for relief in such a case: by suggesting that the parent had lost the use of his reason, when he made the _inofficious_ testament. and this, as puffendorf observes[f], was not to bring into dispute the testator's power of disinheriting his own offspring; but to examine the motives upon which he did it: and, if they were found defective in reason, then to set them aside. but perhaps this is going rather too far: every man has, or ought to have, by the laws of society, a power over his own property: and, as grotius very well distinguishes[g], natural right obliges to give a _necessary_ maintenance to children; but what is more than that, they have no other right to, than as it is given them by the favour of their parents, or the positive constitutions of the municipal law. [footnote d: _ff._ . . .] [footnote e: _nov._ .] [footnote f: _l._ . _c._ . §. .] [footnote g: _de j.b. & p._ _l._ . _c._ . _n._ .] let us next see what provision our own laws have made for this natural duty. it is a principle of law[h], that there is an obligation on every man to provide for those descended from his loins: and the manner, in which this obligation shall be performed, is thus pointed out[i]. the father, and mother, grandfather, and grandmother of poor impotent persons shall maintain them at their own charges, if of sufficient ability, according as the quarter sessions shall direct: and[k] if a parent runs away, and leaves his children, the churchwardens and overseers of the parish shall seise his rents, goods, and chattels, and dispose of them towards their relief. by the interpretations which the courts of law have made upon these statutes, if a mother or grandmother marries again, and was before such second marriage of sufficient ability to keep the child, the husband shall be charged to maintain it[l]: for this being a debt of hers, when single, shall like others extend to charge the husband. but at her death, the relation being dissolved, the husband is under no farther obligation. [footnote h: raym. .] [footnote i: stat. eliz. c. .] [footnote k: stat. geo. i. c. .] [footnote l: styles. . bulstr. .] no person is bound to provide a maintenance for his issue, unless where the children are impotent and unable to work, either through infancy, disease, or accident; and then is only obliged to find them with necessaries, the penalty on refusal being no more than _s._ a month. for the policy of our laws, which are ever watchful to promote industry, did not mean to compel a father to maintain his idle and lazy children in ease and indolence: but thought it unjust to oblige the parent, against his will, to provide them with superfluities, and other indulgences of fortune; imagining they might trust to the impulse of nature, if the children were deserving of such favours. yet, as nothing is so apt to stifle the calls of nature as religious bigotry, it is enacted[m], that if any popish parent shall refuse to allow his protestant child a fitting maintenance, with a view to compel him to change his religion, the lord chancellor shall by order of court constrain him to do what is just and reasonable. but this did not extend to persons of another religion, of no less bitterness and bigotry than the popish: and therefore in the very next year we find an instance of a jew of immense riches, whose only daughter having embraced christianity, he turned her out of doors; and on her application for relief, it was held she was intitled to none[n]. but this gave occasion[o] to another statute[p], which ordains, that if jewish parents refuse to allow their protestant children a fitting maintenance, suitable to the fortune of the parent, the lord chancellor on complaint may make such order therein as he shall see proper. [footnote m: stat. & w. iii. c. .] [footnote n: lord raym. .] [footnote o: com. journ. feb. mar. .] [footnote p: ann. st. . c. .] our law has made no provision to prevent the disinheriting of children by will; leaving every man's property in his own disposal, upon a principle of liberty in this, as well as every other, action: though perhaps it had not been amiss, if the parent had been bound to leave them at the least a necessary subsistence. by the custom of london indeed, (which was formerly universal throughout the kingdom) the children of freemen are entitled to one third of their father's effects, to be equally divided among them; of which he cannot deprive them. and, among persons of any rank or fortune, a competence is generally provided for younger children, and the bulk of the estate settled upon the eldest, by the marriage-articles. heirs also, and children, are favourites of our courts of justice, and cannot be disinherited by any dubious or ambiguous words; there being required the utmost certainty of the testator's intentions to take away the right of an heir[q]. [footnote q: lev. .] from the duty of maintenance we may easily pass to that of _protection_; which is also a natural duty, but rather permitted than enjoined by any municipal laws: nature, in this respect, working so strongly as to need rather a check than a spur. a parent may, by our laws, maintain and uphold his children in their lawsuits, without being guilty of the legal crime of maintaining quarrels[r]. a parent may also justify an assault and battery in defence of the persons of his children[s]: nay, where a man's son was beaten by another boy, and the father went near a mile to find him, and there revenged his son's quarrel by beating the other boy, of which beating he afterwards died; it was not held to be murder, but manslaughter merely[t]. such indulgence does the law shew to the frailty of human nature, and the workings of parental affection. [footnote r: inst. .] [footnote s: hawk. p.c. .] [footnote t: cro. jac. . hawk. p.c. .] the last duty of parents to their children is that of giving them an _education_ suitable to their station in life: a duty pointed out by reason, and of far the greatest importance of any. for, as puffendorf very well observes[u], it is not easy to imagine or allow, that a parent has conferred any considerable benefit upon his child, by bringing him into the world; if he afterwards entirely neglects his culture and education, and suffers him to grow up like a mere beast, to lead a life useless to others, and shameful to himself. yet the municipal laws of most countries seem to be defective in this point, by not constraining the parent to bestow a proper education upon his children. perhaps they thought it punishment enough to leave the parent, who neglects the instruction of his family, to labour under those griefs and inconveniences, which his family, so uninstructed, will be sure to bring upon him. our laws, though their defects in this particular cannot be denied, have in one instance made a wise provision for breeding up the rising generation; since the poor and laborious part of the community, when past the age of nurture, are taken out of the hands of their parents, by the statutes for apprenticing poor children[w]; and are placed out by the public in such a manner, as may render their abilities, in their several stations, of the greatest advantage to the commonwealth. the rich indeed are left at their own option, whether they will breed up their children to be ornaments or disgraces to their family. yet in one case, that of religion, they are under peculiar restrictions: for[x] it is provided, that if any person sends any child under his government beyond the seas, either to prevent it's good education in england, or in order to enter into or reside in any popish college, or to be instructed, persuaded, or strengthened in the popish religion; in such case, besides the disabilities incurred by the child so sent, the parent or person sending shall forfeit _l._ which[y] shall go to the sole use and benefit of him that shall discover the offence. and[z] if any parent, or other, shall send or convey any person beyond sea, to enter into, or be resident in, or trained up in, any priory, abbey, nunnery, popish university, college, or school, or house of jesuits, or priests, or in any private popish family, in order to be instructed, persuaded, or confirmed in the popish religion; or shall contribute any thing towards their maintenance when abroad by any pretext whatever, the person both sending and sent shall be disabled to sue in law or equity, or to be executor or administrator to any person, or to enjoy any legacy or deed of gift, or to bear any office in the realm, and shall forfeit all his goods and chattels, and likewise all his real estate for life. [footnote u: l. of n. b. . c. . §. .] [footnote w: see page .] [footnote x: stat. jac. i. c. . & jac. i. c. .] [footnote y: stat. & w. iii. c. .] [footnote z: stat. car. i. c. .] . the _power_ of parents over their children is derived from the former consideration, their duty; this authority being given them, partly to enable the parent more effectually to perform his duty, and partly as a recompence for his care and trouble in the faithful discharge of it. and upon this score the municipal laws of some nations have given a much larger authority to the parents, than others. the antient roman laws gave the father a power of life and death over his children; upon this principle, that he who gave had also the power of taking away[a]. but the rigor of these laws was softened by subsequent constitutions; so that[b] we find a father banished by the emperor hadrian for killing his son, though he had committed a very heinous crime, upon this maxim, that "_patria potestas in pietate debet, non in atrocitate, consistere_." but still they maintained to the last a very large and absolute authority: for a son could not acquire any property of his own during the life of his father; but all his acquisitions belonged to the father, or at least the profits of them for his life[c]. [footnote a: _ff._ . . . _cod._ . . .] [footnote b: _ff._ . . .] [footnote c: _inst._ . . .] the power of a parent by our english laws is much more moderate; but still sufficient to keep the child in order and obedience. he may lawfully correct his child, being under age, in a reasonable manner[d]; for this is for the benefit of his education. the consent or concurrence of the parent to the marriage of his child under age, was also _directed_ by our antient law to be obtained: but now it is absolutely _necessary_; for without it the contract is void[e]. and this also is another means, which the law has put into the parent's hands, in order the better to discharge his duty; first, of protecting his children from the snares of artful and designing persons; and, next, of settling them properly in life, by preventing the ill consequences of too early and precipitate marriages. a father has no other power over his sons _estate_, than as his trustee or guardian; for, though he may receive the profits during the child's minority, yet he must account for them when he comes of age. he may indeed have the benefit of his children's labour while they live with him, and are maintained by him: but this is no more than he is entitled to from his apprentices or servants. the legal power of a father (for a mother, as such, is entitled to no power, but only to reverence and respect) the power of a father, i say, over the persons of his children ceases at the age of twenty one: for they are then enfranchised by arriving at years of discretion, or that point which the law has established (as some must necessarily be established) when the empire of the father, or other guardian, gives place to the empire of reason. yet, till that age arrives, this empire of the father continues even after his death; for he may by his will appoint a guardian to his children. he may also delegate part of his parental authority, during his life, to the tutor or schoolmaster of his child; who is then _in loco parentis_, and has such a portion of the power of the parent committed to his charge, viz. that of restraint and correction, as may be necessary to answer the purposes for which he is employed. [footnote d: hawk. p.c. .] [footnote e: stat. geo. ii. c. .] . the _duties_ of children to their parents arise from a principle of natural justice and retribution. for to those, who gave us existence, we naturally owe subjection and obedience during our minority, and honour and reverence ever after; they, who protected the weakness of our infancy, are entitled to our protection in the infirmity of their age; they who by sustenance and education have enabled their offspring to prosper, ought in return to be supported by that offspring, in case they stand in need of assistance. upon this principle proceed all the duties of children to their parents, which are enjoined by positive laws. and the athenian laws[f] carried this principle into practice with a scrupulous kind of nicety: obliging all children to provide for their father, when fallen into poverty; with an exception to spurious children, to those whose chastity had been prostituted by consent of the father, and to those whom he had not put in any way of gaining a livelyhood. the legislature, says baron montesquieu[g], considered, that in the first case the father, being uncertain, had rendered the natural obligation precarious; that, in the second case, he had sullied the life he had given, and done his children the greatest of injuries, in depriving them of their reputation; and that, in the third case, he had rendered their life (so far as in him lay) an insupportable burthen, by furnishing them with no means of subsistence. [footnote f: potter's antiq. b. . c. .] [footnote g: sp. l. l. . c. .] our laws agree with those of athens with regard to the first only of these particulars, the case of spurious issue. in the other cases the law does not hold the tie of nature to be dissolved by any misbehaviour of the parent; and therefore a child is equally justifiable in defending the person, or maintaining the cause or suit, of a bad parent, as a good one; and is equally compellable[h], if of sufficient ability, to maintain and provide for a wicked and unnatural progenitor, as for one who has shewn the greatest tenderness and parental piety. [footnote h: stat. eliz. c. .] ii. we are next to consider the case of illegitimate children, or bastards; with regard to whom let us inquire, . who are bastards. . the legal duties of the parents towards a bastard child. . the rights and incapacities attending such bastard children. . who are bastards. a bastard, by our english laws, is one that is not only begotten, but born, out of lawful matrimony. the civil and canon laws do not allow a child to remain a bastard, if the parents afterwards intermarry[i]: and herein they differ most materially from our law; which, though not so strict as to require that the child shall be _begotten_, yet makes it an indispensable condition that it shall be _born_, after lawful wedlock. and the reason of our english law is surely much superior to that of the roman, if we consider the principal end and design of establishing the contract of marriage, taken in a civil light; abstractedly from any religious view, which has nothing to do with the legitimacy or illegitimacy of the children. the main end and design of marriage therefore being to ascertain and fix upon some certain person, to whom the care, the protection, the maintenance, and the education of the children should belong; this end is undoubtedly better answered by legitimating all issue born after wedlock, than by legitimating all issue of the same parties, even born before wedlock, so as wedlock afterwards ensues: . because of the very great uncertainty there will generally be, in the proof that the issue was really begotten by the same man; whereas, by confining the proof to the birth, and not to the begetting, our law has rendered it perfectly certain, what child is legitimate, and who is to take care of the child. . because by the roman laws a child may be continued a bastard, or made legitimate, at the option of the father and mother, by a marriage _ex post facto_; thereby opening a door to many frauds and partialities, which by our law are prevented. . because by those laws a man may remain a bastard till forty years of age, and then become legitimate, by the subsequent marriage of his parents; whereby the main end of marriage, the protection of infants, is totally frustrated. . because this rule of the roman laws admits of no limitations as to the time, or number, of bastards so to be legitimated; but a dozen of them may, twenty years after their birth, by the subsequent marriage of their parents, be admitted to all the privileges of legitimate children. this is plainly a great discouragement to the matrimonial state; to which one main inducement is usually not only the desire of having _children_, but also the desire of procreating lawful _heirs_. whereas our constitutions guard against this indecency, and at the same time give sufficient allowance to the frailties of human nature. for, if a child be begotten while the parents are single, and they will endeavour to make an early reparation for the offence, by marrying within a few months after, our law is so indulgent as not to bastardize the child, if it be born, though not begotten, in lawful wedlock: for this is an incident that can happen but once; since all future children will be begotten, as well as born, within the rules of honour and civil society. upon reasons like these we may suppose the peers to have acted at the parliament of merton, when they refused to enact that children born before marriage should be esteemed legitimate[k]. [footnote i: _inst._ . . . _decretal._ _l._ . _t._ . _c._ .] [footnote k: _rogaverunt omnes episcopi magnates, ut consentirent quod nati ante matrimonium essent legitimi, sicut illi qui nati sunt post matrimonium, quia ecclesia tales habet pro legitimis. et omnes comites et barones una voce responderunt, quod nolunt leges angliae mutare, quae hucusque usitatae sunt et approbatae._ stat. hen. iii. c. . see the introduction to the great charter, _edit. oxon._ . _sub anno_ .] from what has been said it appears, that all children born before matrimony are bastards by our law; and so it is of all children born so long after the death of the husband, that, by the usual course of gestation, they could not be begotten by him. but, this being a matter of some uncertainty, the law is not exact as to a few days[l]. and this gives occasion to a proceeding at common law, where a widow is suspected to feign herself with child, in order to produce a supposititious heir to the estate: an attempt which the rigor of the gothic constitutions esteemed equivalent to the most atrocious theft, and therefore punished with death[m]. in this case with us the heir presumptive may have a writ _de ventre inspiciendo_, to examine whether she be with child, or not[n]; which is entirely conformable to the practice of the civil law[o]: and, if the widow be upon due examination found not pregnant, any issue she may afterwards produce, though within nine months, will be bastard. but if a man dies, and his widow soon after marries again, and a child is born within such a time, as that by the course of nature it might have been the child of either husband; in this case he is said to be more than ordinarily legitimate; for he may, when he arrives to years of discretion, choose which of the fathers he pleases[p]. to prevent this, among other inconveniences, the civil law ordained that no widow should marry _infra annum luctus_[q]; a rule which obtained so early as the reign of augustus[r], if not of romulus: and the same constitution was probably handed down to our early ancestors from the romans, during their stay in this island; for we find it established under the saxon and danish governments[s]. [footnote l: cro. jac. .] [footnote m: stiernhook _de jure gothor._ _l._ . _c._ .] [footnote n: co. litt. .] [footnote o: _ff._ . _tit._ . _per tot._] [footnote p: co. litt. .] [footnote q: _cod._ . . .] [footnote r: but the year was then only _ten_ months. ovid. fast. i. .] [footnote s: _sit omnis vidua sine marito duodecim menses._ _ll. ethelr._ _a.d._ . _ll. canut._ _c._ .] as bastards may be born before the coverture, or marriage state, is begun, or after it is determined, so also children born during wedlock may in some circumstances be bastards. as if the husband be out of the kingdom of england (or, as the law somewhat loosely phrases it, _extra quatuor maria_) for above nine months, so that no access to his wife can be presumed, her issue during that period shall be bastard[t]. but, generally, during the coverture access of the husband shall be presumed, unless the contrary can be shewn[u]; which is such a negative as can only be proved by shewing him to be elsewhere: for the general rule is, _praesumitur pro legitimatione_[w]. in a divorce _a mensa et thoro_, if the wife breeds children, they are bastards; for the law will presume the husband and wife conformable to the sentence of separation, unless access be proved: but, in a voluntary separation by agreement, the law will suppose access, unless the negative be shewn[x]. so also if there is an apparent impossibility of procreation on the part of the husband, as if he be only eight years old, or the like, there the issue of the wife shall be bastard[y]. likewise, in case of divorce in the spiritual court _a vinculo matrimonii_, all the issue born during the coverture are bastards[z]; because such divorce is always upon some cause, that rendered the marriage unlawful and null from the beginning. [footnote t: co. litt. .] [footnote u: salk. . p.w. . stra. .] [footnote w: rep. .] [footnote x: salk. .] [footnote y: co. litt. .] [footnote z: _ibid._ .] . let us next see the duty of parents to their bastard children, by our law; which is principally that of maintenance. for, though bastards are not looked upon as children to any civil purposes, yet the ties of nature, of which maintenance is one, are not so easily dissolved: and they hold indeed as to many other intentions; as, particularly, that a man shall not marry his bastard sister or daughter[a]. the civil law therefore, when it denied maintenance to bastards begotten under certain atrocious circumstances[b], was neither consonant to nature, nor reason, however profligate and wicked the parents might justly be esteemed. [footnote a: lord raym. . comb. .] [footnote b: _nov._ . _c._ .] the method in which the english law provides maintenance for them is as follows[c]. when a woman is delivered, or declares herself with child, of a bastard, and will by oath before a justice of peace charge any person having got her with child, the justice shall cause such person to be apprehended, and commit him till he gives security, either to maintain the child, or appear at the next quarter sessions to dispute and try the fact. but if the woman dies, or is married before delivery, or miscarries, or proves not to have been with child, the person shall be discharged: otherwise the sessions, or two justices out of sessions, upon original application to them, may take order for the keeping of the bastard, by charging the mother, or the reputed father with the payment of money or other sustentation for that purpose. and if such putative father, or lewd mother, run away from the parish, the overseers by direction of two justices may seize their rents, goods, and chattels, in order to bring up the said bastard child. yet such is the humanity of our laws, that no woman can be compulsively questioned concerning the father of her child, till one month after her delivery: which indulgence is however very frequently a hardship upon parishes, by suffering the parents to escape. [footnote c: stat. eliz. c. . jac. i. c. . car. i. c. . & car. ii. c. . geo. ii. c. .] . i proceed next to the rights and incapacities which appertain to a bastard. the rights are very few, being only such as he can _acquire_; for he can _inherit_ nothing, being looked upon as the son of nobody, and sometimes called _filius nullius_, sometimes _filius populi_[d]. yet he may gain a sirname by reputation[e], though he has none by inheritance. all other children have a settlement in their father's parish; but a bastard in the parish where born, for he hath no father[f]. however, in case of fraud, as if a woman be sent either by order of justices, or comes to beg as a vagrant, to a parish which she does not belong to, and drops her bastard there; the bastard shall, in the first case, be settled in the parish from whence she was illegally removed[g]; or, in the latter case, in the mother's own parish, if the mother be apprehended for her vagrancy[h]. the incapacity of a bastard consists principally in this, that he cannot be heir to any one, neither can he have heirs, but of his own body; for, being _nullius filius_, he is therefore of kin to nobody, and has no ancestor from whom any inheritable blood can be derived. a bastard was also, in strictness, incapable of holy orders; and, though that were dispensed with, yet he was utterly disqualified from holding any dignity in the church[i]: but this doctrine seems now obsolete; and in all other respects, there is no distinction between a bastard and another man. and really any other distinction, but that of not inheriting, which civil policy renders necessary, would, with regard to the innocent offspring of his parents' crimes, be odious, unjust, and cruel to the last degree: and yet the civil law, so boasted of for it's equitable decisions, made bastards in some cases incapable even of a gift from their parents[k]. a bastard may, lastly, be made legitimate, and capable of inheriting, by the transcendent power of an act of parliament, and not otherwise[l]: as was done in the case of john of gant's bastard children, by a statute of richard the second. [footnote d: _fort. de ll._ _c._ .] [footnote e: co. litt. .] [footnote f: salk. .] [footnote g: salk. .] [footnote h: stat. geo. ii. c. .] [footnote i: fortesc. _c._ . rep. .] [footnote k: _cod._ . . .] [footnote l: inst. .] chapter the seventeenth. of guardian and ward. the only general private relation, now remaining to be discussed, is that of guardian and ward; which bears a very near resemblance to the last, and is plainly derived out of it: the guardian being only a temporary parent; that is, for so long time as the ward is an infant, or under age. in examining this species of relationship, i shall first consider the different kinds of guardians, how they are appointed, and their power and duty: next, the different ages of persons, as defined by the law: and, lastly, the privileges and disabilities of an infant, or one under age and subject to guardianship. . the guardian with us performs the office both of the _tutor_ and _curator_ of the roman laws; the former of which had the charge of the maintenance and education of the minor, the latter the care of his fortune; or, according to the language of the court of chancery, the _tutor_ was the committee of the person, the _curator_ the committee of the estate. but this office was frequently united in the civil law[a]; as it is always in our law with regard to minors, though as to lunatics and idiots it is commonly kept distinct. [footnote a: _ff._ . . .] of the several species of guardians, the first are guardians _by nature_: viz. the father and (in some cases) the mother of the child. for, if an estate be left to an infant, the father is by common law the guardian, and must account to his child for the profits[b]. and, with regard to daughters, it seems by construction of the statute & ph. & mar. c. . that the father might by deed or will assign a guardian to any woman-child under the age of sixteen, and if none be so assigned, the mother shall in this case be guardian[c]. there are also guardians _for nurture_[d], which are, of course, the father or mother, till the infant attains the age of fourteen years[e]: and, in default of father or mother, the ordinary usually assigns some discreet person to take care of the infant's personal estate, and to provide for his maintenance and education[f]. next are guardians _in socage_, (an appellation which will be fully explained in the second book of these commentaries) who are also called guardians _by the common law_. these take place only when the minor is entitled to some estate in lands, and then by the common law the guardianship devolves upon his next of kin, to whom the inheritance cannot possibly descend; as, where the estate descended from his father, in this case his uncle by the mother's side cannot possibly inherit this estate, and therefore shall be the guardian[g]. for the law judges it improper to trust the person of an infant in his hands, who may by possibility become heir to him; that there may be no temptation, nor even suspicion of temptation, for him to abuse his trust[h]. the roman laws proceed on a quite contrary principle, committing the care of the minor to him who is the next to succeed to the inheritance, presuming that the next heir would take the best care of an estate, to which he has a prospect of succeeding: and this they boast to be "_summa providentia_[i]." but in the mean time they forget, how much it is the guardian's interest to remove the incumbrance of his pupil's life from that estate, for which he is supposed to have so great a regard[k]. and this affords fortescue[l], and sir edward coke[m], an ample opportunity for triumph; they affirming, that to commit the custody of an infant to him that is next in succession, is "_quasi agnum committere lupo, ad devorandum_[n]." these guardians in socage, like those for nurture, continue only till the minor is fourteen years of age; for then, in both cases, he is presumed to have discretion, so far as to choose his own guardian. this he may do, unless one be appointed by father, by virtue of the statute car. ii. c. . which, considering the imbecillity of judgment in children of the age of fourteen, and the abolition of guardianship _in chivalry_ (which lasted till the age of twenty one, and of which we shall speak hereafter) enacts, that any father, under age or of full age, may by deed or will dispose of the custody of his child, either born or unborn, to any person, except a popish recusant, either in possession or reversion, till such child attains the age of one and twenty years. these are called guardians _by statute_, or _testamentary_ guardians. there are also special guardians _by custom_ of london, and other places[o]; but they are particular exceptions, and do not fall under the general law. [footnote b: co. litt. .] [footnote c: rep. .] [footnote d: co. litt. .] [footnote e: moor. . rep. .] [footnote f: jones . lev. .] [footnote g: litt. §. .] [footnote h: _nunquam custodia alicujus de jure alicui remanet, de quo habeatur suspicio, quod possit vel velit aliquod jus in ipsa hereditate clamare._ glanv. _l._ . _c._ .] [footnote i: _ff._ . . .] [footnote k: the roman satyrist was fully aware of this danger, when he puts this private prayer into the mouth of a selfish guardian; _pupillum o utinam, quem proximus haeres impello, expungam._ perf. . .] [footnote l: _c._ .] [footnote m: inst. .] [footnote n: this policy of our english law is warranted by the wise institutions of solon, who provided that no one should be another's guardian, who was to enjoy the estate after his death. (potter's antiqu. l. . c. .) and charondas, another of the grecian legislators, directed that the inheritance should go to the father's relations, but the education of the child to the mother's; that the guardianship and right of succession might always be kept distinct. (petit. _leg. att._ _l._ . _t._ .)] [footnote o: co. litt. .] the power and reciprocal duty of a guardian and ward are the same, _pro tempore_, as that of a father and child; and therefore i shall not repeat them: but shall only add, that the guardian, when the ward comes of age, is bound to give him an account of all that he has transacted on his behalf, and must answer for all losses by his wilful default or negligence. in order therefore to prevent disagreeable contests with young gentlemen, it has become a practice for many guardians, of large estates especially, to indemnify themselves by applying to the court of chancery, acting under it's direction, and accounting annually before the officers of that court. for the lord chancellor is, by right derived from the crown, the general and supreme guardian of all infants, as well as idiots and lunatics; that is, of all such persons as have not discretion enough to manage their own concerns. in case therefore any guardian abuses his trust, the court will check and punish him; nay sometimes proceed to the removal of him, and appoint another in his stead[p]. [footnote p: sid. . p. will. .] . let us next consider the ward, or person within age, for whose assistance and support these guardians are constituted by law; or who it is, that is said to be within age. the ages of male and female are different for different purposes. a male at _twelve_ years old may take the oath of allegiance; at _fourteen_ is at years of discretion, and therefore may consent or disagree to marriage, may choose his guardian, and, if his discretion be actually proved, may make his testament of his personal estate; at _seventeen_ may be an executor; and at _twenty one_ is at his own disposal, and may aliene his lands, goods, and chattels. a female also at _seven_ years of age may be betrothed or given in marriage; at _nine_ is entitled to dower; at _twelve_ is at years of maturity, and therefore may consent or disagree to marriage, and, if proved to have sufficient discretion, may bequeath her personal estate; at _fourteen_ is at years of legal discretion, and may choose a guardian; at _seventeen_ may be executrix; and at _twenty one_ may dispose of herself and her lands. so that full age in male or female, is twenty one years, which age is completed on the day preceding the anniversary of a person's birth[q]; who till that time is an infant, and so stiled in law. among the antient greeks and romans _women_ were never of age, but subject to perpetual guardianship[r], unless when married, "_nisi convenissent in manum viri_:" and, when that perpetual tutelage wore away in process of time, we find that, in females as well as males, full age was not till twenty five years[s]. thus, by the constitutions of different kingdoms, this period, which is merely arbitrary, and _juris positivi_, is fixed at different times. scotland agrees with england in this point; (both probably copying from the old saxon constitutions on the continent, which extended the age of minority "_ad annum vigesimum primum, et eo usque juvenes sub tutelam reponunt_[t]") but in naples they are of full age at _eighteen_; in france, with regard to marriage, not till _thirty_; and in holland at _twenty five_. [footnote q: salk. . .] [footnote r: pott. antiq. l. . c. . cic. _pro muren._ .] [footnote s: _inst._ . . .] [footnote t: stiernhook _de jure sueonum._ _l._ . _c._ . this is also the period when the king, as well as the subject, arrives at full age in modern sweden. mod. un. hist. xxxiii. .] . infants have various privileges, and various disabilities: but their very disabilities are privileges; in order to secure them from hurting themselves by their own improvident acts. an infant cannot be sued but under the protection, and joining the name, of his guardian; for he is to defend him against all attacks as well by law as otherwise[u]: but he may sue either by his guardian, or _prochein amy_, his next friend who is not his guardian. this _prochein amy_ may be any person who will undertake the infant's cause; and it frequently happens, that an infant, by his _prochein amy_, institutes a suit in equity against a fraudulent guardian. in criminal cases, an infant of the age of _fourteen_ years may be capitally punished for any capital offence[w]: but under the age of _seven_ he cannot. the period between _seven_ and _fourteen_ is subject to much incertainty: for the infant shall, generally speaking, be judged _prima facie_ innocent; yet if he was _doli capax_, and could discern between good and evil at the time of the offence committed, he may be convicted and undergo judgment and execution of death, though he hath not attained to years of puberty or discretion[x]. and sir matthew hale gives us two instances, one of a girl of thirteen, who was burned for killing her mistress; another of a boy still younger, that had killed his companion, and hid himself, who was hanged; for it appeared by his hiding that he knew he had done wrong, and could discern between good and evil; and in such cases the maxim of law is, that _malitia supplet aetatem_. [footnote u: co. litt. .] [footnote w: hal. p.c. .] [footnote x: hal. p.c. .] with regard to estates and civil property, an infant hath many privileges, which will be better understood when we come to treat more particularly of those matters: but this may be said in general, that an infant shall lose nothing by non-claim, or neglect of demanding his right; nor shall any other _laches_ or negligence be imputed to an infant, except in some very particular cases. it is generally true, that an infant can neither aliene his lands, nor do any legal act, nor make a deed, nor indeed any manner of contract, that will bind him. but still to all these rules there are some exceptions; part of which were just now mentioned in reckoning up the different capacities which they assume at different ages: and there are others, a few of which it may not be improper to recite, as a general specimen of the whole. and, first, it is true, that infants cannot aliene their estates: but[y] infant trustees, or mortgagees, are enabled to convey, under the direction of the court of chancery or exchequer, the estates they hold in trust or mortgage, to such person as the court shall appoint. also it is generally true, that an infant can do no legal act: yet an infant who has an advowson, may present to the benefice when it becomes void[z]. for the law in this case dispenses with one rule, in order to maintain others of far greater consequence: it permits an infant to present a clerk (who, if unfit, may be rejected by the bishop) rather than either suffer the church to be unserved till he comes of age, or permit the infant to be debarred of his right by lapse to the bishop. an infant may also purchase lands, but his purchase is incomplete: for, when he comes to age, he may either agree or disagree to it, as he thinks prudent or proper, without alleging any reason; and so may his heirs after him, if he dies without having completed his agreement[a]. it is, farther, generally true, that an infant, under twenty one, can make no deed that is of any force or effect: yet[b] he may bind himself apprentice by deed indented, or indentures, for seven years; and[c] he may by deed or will appoint a guardian to his children, if he has any. lastly, it is generally true, that an infant can make no other contract that will bind him: yet he may bind himself to pay for his necessary meat, drink, apparel, physic, and such other necessaries; and likewise for his good teaching and instruction, whereby he may profit himself afterwards[d]. and thus much, at present, for the privileges and disabilities of infants. [footnote y: stat. ann. c. .] [footnote z: co. litt. .] [footnote a: co. litt. .] [footnote b: stat. eliz. c. .] [footnote c: stat. car. ii. c. .] [footnote d: co. litt. .] chapter the eighteenth. of corporations. we have hitherto considered persons in their natural capacities, and have treated of their rights and duties. but, as all personal rights die with the person; and, as the necessary forms of investing a series of individuals, one after another, with the same identical rights, would be very inconvenient, if not impracticable; it has been found necessary, when it is for the advantage of the public to have any particular rights kept on foot and continued, to constitute artificial persons, who may maintain a perpetual succession, and enjoy a kind of legal immortality. these artificial persons are called bodies politic, bodies corporate, (_corpora corporata_) or corporations: of which there is a great variety subsisting, for the advancement of religion, of learning, and of commerce; in order to preserve entire and for ever those rights and immunities, which, if they were granted only to those individuals of which the body corporate is composed, would upon their death be utterly lost and extinct. to shew the advantages of these incorporations, let us consider the case of a college in either of our universities, founded _ad studendum et orandum_, for the encouragement and support of religion and learning. if this was a mere voluntary assembly, the individuals which compose it might indeed read, pray, study, and perform scholastic exercises together, so long as they could agree to do so: but they could neither frame, nor receive, any laws or rules of their conduct; none at least, which would have any binding force, for want of a coercive power to create a sufficient obligation. neither could they be capable of retaining any privileges or immunities: for, if such privileges be attacked, which of all this unconnected assembly has the right, or ability, to defend them? and, when they are dispersed by death or otherwise, how shall they transfer these advantages to another set of students, equally unconnected as themselves? so also, with regard to holding estates or other property, if land be granted for the purposes of religion or learning to twenty individuals not incorporated, there is no legal way of continuing the property to any other persons for the same purposes, but by endless conveyances from one to the other, as often as the hands are changed. but, when they are consolidated and united into a corporation, they and their successors are then considered as one person in law: as one person, they have one will, which is collected from the sense of the majority of the individuals: this one will may establish rules and orders for the regulation of the whole, which are a sort of municipal laws of this little republic; or rules and statutes may be prescribed to it at it's creation, which are then in the place of natural laws: the privileges and immunities, the estates and possessions, of the corporation, when once vested in them, will be for ever vested, without any new conveyance to new successions; for all the individual members that have existed from the foundation to the present time, or that shall ever hereafter exist, are but one person in law, a person that never dies: in like manner as the river thames is still the same river, though the parts which compose it are changing every instant. the honour of originally inventing these political constitutions entirely belongs to the romans. they were introduced, as plutarch says, by numa; who finding, upon his accession, the city torn to pieces by the two rival factions of sabines, and romans, thought it a prudent and politic measure, to subdivide these two into many smaller ones, by instituting separate societies of every manual trade and profession. they were afterwards much considered by the civil law[a], in which they were called _universitates_, as forming one whole out of many individuals; or _collegia_, from being gathered together: they were adopted also by the canon law, for the maintenance of ecclesiastical discipline; and from them our spiritual corporations are derived. but our laws have considerably refined and improved upon the invention, according to the usual genius of the english nation: particularly with regard to sole corporations, consisting of one person only, of which the roman lawyers had no notion; their maxim being that "_tres faciunt collegium_[b]." though they held, that if a corporation, originally consisting of three persons, be reduced to one, "_si universitas ad unum redit_," it may still subsist as a corporation, "_et stet nomen universitatis_[c]." [footnote a: _ff._ _l._ . _t._ . _per tot._] [footnote b: _ff._ . . .] [footnote c: _ff._ . . .] before we proceed to treat of the several incidents of corporations, as regarded by the laws of england, let us first take a view of the several sorts of them; and then we shall be better enabled to apprehend their respective qualities. the first division of corporations is into _aggregate_ and _sole_. corporations aggregate consist of many persons united together into one society, and are kept up by a perpetual succession of members, so as to continue for ever: of which kind are the mayor and commonalty of a city, the head and fellows of a college, the dean and chapter of a cathedral church. corporations sole consist of one person only and his successors, in some particular station, who are incorporated by law, in order to give them some legal capacities and advantages, particularly that of perpetuity, which in their natural persons they could not have had. in this sense the king is a sole corporation[d]: so is a bishop: so are some deans, and prebendaries, distinct from their several chapters: and so is every parson and vicar. and the necessity, or at least use, of this institution will be very apparent, if we consider the case of a parson of a church. at the original endowment of parish churches, the freehold of the church, the church-yard, the parsonage house, the glebe, and the tithes of the parish, were vested in the then parson by the bounty of the donor, as a temporal recompence to him for his spiritual care of the inhabitants, and with intent that the same emoluments should ever afterwards continue as a recompense for the same care. but how was this to be effected? the freehold was vested in the parson; and, if we suppose it vested in his natural capacity, on his death it might descend to his heir, and would be liable to his debts and incumbrances: or, at best, the heir might be compellable, at some trouble and expense, to convey these rights to the succeeding incumbent. the law therefore has wisely ordained, that the parson, _quatenus_ parson, shall never die, any more than the king; by making him and his successors a corporation. by which means all the original rights of the parsonage are preserved entire to the successor: for the present incumbent, and his predecessor who lived seven centuries ago, are in law one and the same person; and what was given to the one was given to the other also. [footnote d: co. litt. .] another division of corporations, either sole or aggregate, is into _ecclesiastical_ and _lay_. ecclesiastical corporations are where the members that compose it are entirely spiritual persons; such as bishops; certain deans, and prebendaries; all archdeacons, parsons, and vicars; which are sole corporations: deans and chapters at present, and formerly prior and convent, abbot and monks, and the like, bodies aggregate. these are erected for the furtherance of religion, and the perpetuating the rights of the church. lay corporations are of two sorts, _civil_ and _eleemosynary_. the civil are such as are erected for a variety of temporal purposes. the king, for instance, is made a corporation to prevent in general the possibility of an _interregnum_ or vacancy of the throne, and to preserve the possessions of the crown entire; for, immediately upon the demise of one king, his successor is, as we have formerly seen, in full possession of the regal rights and dignity. other lay corporations are erected for the good government of a town or particular district, as a mayor and commonalty, bailiff and burgesses, or the like: some for the advancement and regulation of manufactures and commerce; as the trading companies of london, and other towns: and some for the better carrying on of divers special purposes; as churchwardens, for conservation of the goods of the parish; the college of physicians and company of surgeons in london, for the improvement of the medical science; the royal society, for the advancement of natural knowlege; and the society of antiquarians, for promoting the study of antiquities. and among these i am inclined to think the general corporate bodies of the universities of oxford and cambridge must be ranked: for it is clear they are not spiritual or ecclesiastical corporations, being composed of more laymen than clergy: neither are they eleemosynary foundations, though stipends are annexed to particular magistrates and professors, any more than other corporations where the acting officers have standing salaries; for these are rewards _pro opera et labore_, not charitable donations only, since every stipend is preceded by service and duty: they seem therefore to be merely civil corporations. the eleemosynary sort are such as are constituted for the perpetual distribution of the free alms, or bounty, of the founder of them to such persons as he has directed. of this kind are all hospitals for the maintenance of the poor, sick, and impotent; and all colleges, both _in_ our universities and _out_[e] of them: which colleges are founded for two purposes; . for the promotion of piety and learning by proper regulations and ordinances. . for imparting assistance to the members of those bodies, in order to enable them to prosecute their devotion and studies with greater ease and assiduity. and all these eleemosynary corporations are, strictly speaking, lay and not ecclesiastical, even though composed of ecclesiastical persons[f], and although they in some things partake of the nature, privileges, and restrictions of ecclesiastical bodies. [footnote e: such as at manchester, eton, winchester, &c.] [footnote f: lord raym. .] having thus marshalled the several species of corporations, let us next proceed to consider, . how corporations, in general, may be created. . what are their powers, capacities, and incapacities. . how corporations are visited. and . how they may be dissolved. i. corporations, by the civil law, seem to have been created by the mere act, and voluntary association of their members; provided such convention was not contrary to law, for then it was _illicitum collegium_[g]. it does not appear that the prince's consent was necessary to be actually given to the foundation of them; but merely that the original founders of these voluntary and friendly societies (for they were little more than such) should not establish any meetings in opposition to the laws of the state. [footnote g: _ff._ . . . _neque societas, neque collegium, neque hujusmodi corpus passim omnibus habere conceditur; nam et legibus, et senatus consultis, et principalibus constitutionibus ea res coercetur._ _ff._ . . .] but, with us in england, the king's consent is absolutely necessary to the erection of any corporation, either impliedly or expressly given. the king's implied consent is to be found in corporations which exist by force of the _common law_, to which our former kings are supposed to have given their concurrence; common law being nothing else but custom, arising from the universal agreement of the whole community. of this sort are the king himself, all bishops, parsons, vicars, churchwardens, and some others; who by common law have ever been held (as far as our books can shew us) to have been corporations, _virtute officii_: and this incorporation is so inseparably annexed to their offices, that we cannot frame a complete legal idea of any of these persons, but we must also have an idea of a corporation, capable to transmit his rights to his successors, at the same time. another method of implication, whereby the king's consent is presumed, is as to all corporations by _prescription_, such as the city of london, and many others[h], which have existed as corporations, time whereof the memory of man runneth not to the contrary; and therefore are looked upon in law to be well created. for though the members thereof can shew no legal charter of incorporation, yet in cases of such high antiquity the law presumes there once was one; and that by the variety of accidents, which a length of time may produce, the charter is lost or destroyed. the methods, by which the king's consent is expressly given, are either by act of parliament or charter. by act of parliament, of which the royal assent is a necessary ingredient, corporations may undoubtedly be created[i]: but it is observable, that most of those statutes, which are usually cited as having created corporations, do either confirm such as have been before created by the king; as in the case of the college of physicians, erected by charter hen. viii[k], which charter was afterwards confirmed in parliament[l]; or, they permit the king to erect a corporation _in futuro_ with such and such powers; as is the case of the bank of england[m], and the society of the british fishery[n]. so that the immediate creative act is usually performed by the king alone, in virtue of his royal prerogative[o]. [footnote h: inst. .] [footnote i: rep. . roll. abr. . [transcriber's note: footnote marker missing in original.]] [footnote k: rep. .] [footnote l: & hen. viii. c. .] [footnote m: stat. & w. & m. c. .] [footnote n: stat. geo. ii. c. .] [footnote o: see page .] all the other methods therefore whereby corporations exist, by common law, by prescription, and by act of parliament, are for the most part reducible to this of the king's letters patent, or charter of incorporation. the king's creation may be performed by the words "_creamus, erigimus, fundamus, incorporamus_," or the like. nay it is held, that if the king grants to a set of men to have _gildam mercatoriam_, a mercantile meeting or assembly[p], this is alone sufficient to incorporate and establish them for ever[q]. [footnote p: _gild_ signified among the saxons a fraternity, derived from the verb [anglo-saxon: gildan] to pay, because every man paid his share towards the expenses of the community. and hence their place of meeting is frequently called the _gild-hall_.] [footnote q: rep. . roll. abr. .] the parliament, we observed, by it's absolute and transcendent authority, may perform this, or any other act whatsoever: and actually did perform it to a great extent, by statute eliz. c. . which incorporated all hospitals and houses of correction founded by charitable persons, without farther trouble: and the same has been done in other cases of charitable foundations. but otherwise it is not usual thus to intrench upon the prerogative of the crown, and the king may prevent it when he pleases. and, in the particular instance before-mentioned, it was done, as sir edward coke observes[r], to avoid the charges of incorporation and licences of mortmain in small benefactions; which in his days were grown so great, that it discouraged many men to undertake these pious and charitable works. [footnote r: inst. .] the king may grant to a subject the power of erecting corporations[s], though the contrary was formerly held[t]: that is, he may permit the subject to name the persons and powers of the corporation at his pleasure; but it is really the king that erects, and the subject is but the instrument: for though none but the king can make a corporation, yet _qui facit per alium, facit per se_[v]. in this manner the chancellor of the university of oxford has power by charter to erect corporations; and has actually often exerted it, in the erection of several matriculated companies, now subsisting, of tradesmen subservient to the students. [footnote s: bro. _abr. tit. prerog._ . viner. _prerog._ . pl. .] [footnote t: yearbook, hen. vii. .] [footnote v: rep. .] when a corporation is erected, a name must be given it; and by that name alone it must sue, and be sued, and do all legal acts; though a very minute variation therein is not material[u]. such name is the very being of it's constitution; and, though it is the will of the king that erects the corporation, yet the name is the knot of it's combination, without which it could not perform it's corporate functions[w]. the name of incorporation, says sir edward coke, is as a proper name, or name of baptism; and therefore when a private founder gives his college or hospital a name, he does it only as godfather; and by that same name the king baptizes the incorporation[x]. [footnote u: rep. . [transcriber's note: footnotes v and u are in this order in the original.]] [footnote w: gilb. hist. c.p. .] [footnote x: rep. .] ii. after a corporation is so formed and named, it acquires many powers, rights, capacities, and incapacities, which we are next to consider. some of these are necessarily and inseparably incident to every corporation; which incidents, as soon as a corporation is duly erected, are tacitly annexed of course[y]. as, . to have perpetual succession. this is the very end of it's incorporation: for there cannot be a succession for ever without an incorporation[z]; and therefore all aggregate corporations have a power necessarily implied of electing members in the room of such as go off[a]. . to sue or be sued, implead or be impleaded, grant or receive, by it's corporate name, and do all other acts as natural persons may. . to purchase lands, and hold them, for the benefit of themselves and their successors: which two are consequential to the former. . to have a common seal. for a corporation, being an invisible body, cannot manifest it's intentions by any personal act or oral discourse: it therefore acts and speaks only by it's common seal. for, though the particular members may express their private consents to any act, by words, or signing their names, yet this does not bind the corporation: it is the fixing of the seal, and that only, which unites the several assents of the individuals, who compose the community, and makes one joint assent of the whole[b]. . to make by-laws or private statutes for the better government of the corporation; which are binding upon themselves, unless contrary to the laws of the land, and then they are void. this is also included by law in the very act of incorporation[c]: for, as natural reason is given to the natural body for the governing it, so by-laws or statutes are a sort of political reason to govern the body politic. and this right of making by-laws for their own government, not contrary to the law of the land, was allowed by the law of the twelve tables at rome[d]. but no trading company is, with us, allowed to make by-laws, which may affect the king's prerogative, or the common profit of the people, unless they be approved by the chancellor, treasurer, and chief justices, or the judges of assise in their circuits[e]. these five powers are inseparably incident to every corporation, at least to every corporation _aggregate_: for two of them, though they may be practised, yet are very unnecessary to a corporation _sole_; viz. to have a corporate seal to testify his sole assent, and to make statutes for the regulation of his own conduct. [footnote y: rep. . hob. .] [footnote z: rep. .] [footnote a: roll. abr. .] [footnote b: dav. . .] [footnote c: hob. .] [footnote d: _sodales legem quam volent, dum ne quid ex publica lege corrumpant, sibi ferunto._] [footnote e: stat. hen. vii. c. .] there are also certain privileges and disabilities that attend an aggregate corporation, and are not applicable to such as are sole; the reason of them ceasing, and of course the law. it must always appear by attorney; for it cannot appear in person, being, as sir edward coke says[f], invisible, and existing only in intendment and consideration of law. it can neither maintain, or be made defendant to, an action of battery or such like personal injuries; for a corporation can neither beat, nor be beaten, in it's body politic[g]. a corporation cannot commit treason, or felony, or other crime, in it's corporate capacity[h]: though it's members may, in their distinct individual capacities. neither is it capable of suffering a traitor's, or felon's punishment, for it is not liable to corporal penalties, nor to attainder, forfeiture, or corruption of blood[i]. it cannot be executor or administrator, or perform any personal duties; for it cannot take an oath for the due execution of the office. it cannot be a trustee; for such kind of confidence is foreign to the ends of it's institution: neither can it be compelled to perform such trust, because it cannot be committed to prison[k]; for it's existence being ideal, no man can apprehend or arrest it. and therefore also it cannot be outlawed; for outlawry always supposes a precedent right of arresting, which has been defeated by the parties absconding, and that also a corporation cannot do: for which reasons the proceedings to compel a corporation to appear to any suit by attorney are always by distress on their lands and goods[l]. neither can a corporation be excommunicated; for it has no soul, as is gravely observed by sir edward coke[m]: and therefore also it is not liable to be summoned into the ecclesiastical courts upon any account; for those courts act only _pro salute animae_, and their sentences can only be inforced by spiritual censures: a consideration, which, carried to it's full extent, would alone demonstrate the impropriety of these courts interfering in any temporal rights whatsoever. [footnote f: rep. .] [footnote g: bro. _abr. tit. corporation._ .] [footnote h: rep. .] [footnote i: the civil law also ordains that, in any misbehaviour of a body corporate, the directors only shall be answerable in their personal capacity, and not the corporation. _ff._ . . .] [footnote k: plowd. .] [footnote l: bro. _abr. tit. corporation._ . _outlawry._ .] [footnote m: rep. .] there are also other incidents and powers, which belong to some sort of corporations, and not to others. an aggregate corporation may take goods and chattels for the benefit of themselves and their successors, but a sole corporation cannot[n]: for such moveable property is liable to be lost or imbezzled, and would raise a multitude of disputes between the successor and executor; which the law is careful to avoid. in ecclesiastical and eleemosynary foundations, the king or the founder may give them rules, laws, statutes, and ordinances, which they are bound to observe: but corporations merely lay, constituted for civil purposes, are subject to no particular statutes; but to the common law, and to their own by-laws, not contrary to the laws of the realm[o]. aggregate corporations also, that have by their constitution a head, as a dean, warden, master, or the like, cannot do any acts during the vacancy of the headship, except only appointing another: neither are they then capable of receiving a grant; for such corporation is incomplete without a head[p]. but there may be a corporation aggregate constituted without a head[q]: as the collegiate church of southwell in nottinghamshire, which consists only of prebendaries; and the governors of the charter-house, london, who have no president or superior, but are all of equal authority. in aggregate corporations also, the act of the major part is esteemed the act of the whole[r]. by the civil law this major part must have consisted of two thirds of the whole; else no act could be performed[s]: which perhaps may be one reason why they required three at least to make a corporation. but, with us, _any_ majority is sufficient to determine the act of the whole body. and whereas, notwithstanding the law stood thus, some founders of corporations had made statutes in derogation of the common law, making very frequently the unanimous assent of the society to be necessary to any corporate act; (which king henry viii found to be a great obstruction to his projected scheme of obtaining a surrender of the lands of ecclesiastical corporations) it was therefore enacted by statute hen. viii. c. . that all private statutes shall be utterly void, whereby any grant or election, made by the head, with the concurrence of the major part of the body, is liable to be obstructed by any one or more, being the minority: but this statute extends not to any negative or necessary voice, given by the founder to the head of any such society. [footnote n: co. litt. .] [footnote o: lord raym. .] [footnote p: co. litt. , .] [footnote q: rep. .] [footnote r: bro. _abr. tit. corporation._ , .] [footnote s: _ff._ . . .] we before observed that it was incident to every corporation, to have a capacity to purchase lands for themselves and successors: and this is regularly true at the common law[t]. but they are excepted out of the statute of wills[u]; so that no devise of lands to a corporation by will is good: except for charitable uses, by statute eliz. c. [w]. and also, by a great variety of statutes[x], their privilege even of purchasing from any living grantor is greatly abridged; so that now a corporation, either ecclesiastical or lay, must have a licence from the king to purchase[y], before they can exert that capacity which is vested in them by the common law: nor is even this in all cases sufficient. these statutes are generally called the statutes of _mortmain_; all purchases made by corporate bodies being said to be purchases in mortmain, _in mortua manu_: for the reason of which appellation sir edward coke[z] offers many conjectures; but there is one which seems more probable than any that he has given us: viz. that these purchases being usually made by ecclesiastical bodies, the members of which (being professed) were reckoned dead persons in law, land therefore, holden by them, might with great propriety be said to be held _in mortua manu_. [footnote t: rep. .] [footnote u: hen. viii. c. .] [footnote w: hob. .] [footnote x: from _magna carta_, hen. iii. c. . to geo. ii. c. .] [footnote y: by the civil law a corporation was incapable of taking lands, unless by special privilege from the emperor: _collegium, si nullo speciali privilegio subnixum fit, haereditatem capere non posse, dubium non est_. _cod._ . . .] [footnote z: inst. .] i shall defer the more particular exposition of these statutes of mortmain, till the next book of these commentaries, when we shall consider the nature and tenures of estates; and also the exposition of those disabling statutes of queen elizabeth, which restrain spiritual and eleemosynary corporations from aliening such lands as they are present in legal possession of: only mentioning them in this place, for the sake of regularity, as statutable incapacities incident and relative to corporations. the general _duties_ of all bodies politic, considered in their corporate capacity, may, like those of natural persons, be reduced to this single one; that of acting up to the end or design, whatever it be, for which they were created by their founder. iii. i proceed therefore next to enquire, how these corporations may be _visited_. for corporations being composed of individuals, subject to human frailties, are liable, as well as private persons, to deviate from the end of their institution. and for that reason the law has provided proper persons to visit, enquire into, and correct all irregularities that arise in such corporations, either sole or aggregate, and whether ecclesiastical, civil, or eleemosynary. with regard to all ecclesiastical corporations, the ordinary is their visitor, so constituted by the canon law, and from thence derived to us. the pope formerly, and now the king, as supreme ordinary, is the visitor of the arch-bishop or metropolitan; the metropolitan has the charge and coercion of all his suffragan bishops; and the bishops in their several dioceses are the visitors of all deans and chapters, of all parsons and vicars, and of all other spiritual corporations. with respect to all lay corporations, the founder, his heirs, or assigns, are the visitors, whether the foundation be civil or eleemosynary; for in a lay incorporation the ordinary neither can nor ought to visit[a]. [footnote a: rep. .] i know it is generally said, that civil corporations are subject to no visitation, but merely to the common law of the land; and this shall be presently explained. but first, as i have laid it down as a rule that the founder, his heirs, or assigns, are the visitors of all lay-corporations, let us enquire what is meant by the _founder_. the founder of all corporations in the strictest and original sense is the king alone, for he only can incorporate a society: and in civil incorporations, such as mayor and commonalty, &c, where there are no possessions or endowments given to the body, there is no other founder but the king: but in eleemosynary foundations, such as colleges and hospitals, where there is an endowment of lands, the law distinguishes, and makes two species of foundation; the one _fundatio incipiens_, or the incorporation, in which sense the king is the general founder of all colleges and hospitals; the other _fundatio perficiens_, or the dotation of it, in which sense the first gift of the revenues is the foundation, and he who gives them is in law the founder: and it is in this last sense that we generally call a man the founder of a college or hospital[b]. but here the king has his prerogative: for, if the king and a private man join in endowing an eleemosynary foundation, the king alone shall be the founder of it. and, in general, the king being the sole founder of all civil corporations, and the endower the perficient founder of all eleemosynary ones, the right of visitation of the former results, according to the rule laid down, to the king; and of the latter, to the patron or endower. [footnote b: rep. .] the king being thus constituted by law the visitor of all civil corporations, the law has also appointed the place, wherein he shall exercise this jurisdiction: which is the court of king's bench; where, and where only, all misbehaviours of this kind of corporations are enquired into and redressed, and all their controversies decided. and this is what i understand to be the meaning of our lawyers, when they say that these civil corporations are liable to no visitation; that is, that the law having by immemorial usage appointed them to be visited and inspected by the king their founder, in his majesty's court of king's bench, according to the rules of the common law, they ought not to be visited elsewhere, or by any other authority. and this is so strictly true, that though the king by his letters patent had subjected the college of physicians to the visitation of four very respectable persons, the lord chancellor, the two chief justices, and the chief baron; though the college had accepted this charter with all possible marks of acquiescence, and had acted under it for near a century; yet, in , the authority of this provision coming in dispute, on an appeal preferred to these supposed visitors, they directed the legality of their own appointment to be argued: and, as this college was a mere civil, and not an eleemosynary foundation, they at length determined, upon several days solemn debate, that they had no jurisdiction as visitors; and remitted the appellant (if aggrieved) to his regular remedy in his majesty's court of king's bench. as to eleemosynary corporations, by the dotation the founder and his heirs are of common right the legal visitors, to see that that property is rightly employed, which would otherwise have descended to the visitor himself: but, if the founder has appointed and assigned any other person to be visitor, then his assignee so appointed is invested with all the founder's power, in exclusion of his heir. eleemosynary corporations are chiefly hospitals, or colleges in the university. these were all of them considered by the popish clergy, as of mere ecclesiastical jurisdiction: however, the law of the land judged otherwise; and, with regard to hospitals, it has long been held[c], that if the hospital be spiritual, the bishop shall visit; but if lay, the patron. this right of lay patrons was indeed abridged by statute hen. v. c. . which ordained, that the ordinary should visit _all_ hospitals founded by subjects; though the king's right was reserved, to visit by his commissioners such as were of royal foundation. but the subject's right was in part restored by statute eliz. c. . which directs the bishop to visit such hospitals only, where no visitor is appointed by the founders thereof: and all the hospitals founded by virtue of the statute eliz. c. . are to be visited by such persons as shall be nominated by the respective founders. but still, if the founder appoints nobody, the bishop of the diocese must visit[d]. [footnote c: yearbook, edw. iii. . aff. .] [footnote d: inst. .] colleges in the universities (whatever the common law may now, or might formerly, judge) were certainly considered by the popish clergy, under whose direction they were, as _ecclesiastical_, or at least as _clerical_, corporations; and therefore the right of visitation was claimed by the ordinary of the diocese. this is evident, because in many of our most ancient colleges, where the founder had a mind to subject them to a visitor of his own nomination, he obtained for that purpose a papal bulle to exempt them from the jurisdiction of the ordinary; several of which are still preserved in the archives of the respective societies. and i have reason to believe, that in one of our colleges, (wherein the bishop of that diocese, in which oxford was formerly comprized, has immemorially exercised visitatorial authority) there is no special visitor appointed by the college statutes: so that the bishop's interposition can be ascribed to nothing else, but his supposed title as ordinary to visit this, among other ecclesiastical foundations. and it is not impossible, that the number of colleges in cambridge, which are visited by the bishop of ely, may in part be derived from the same original. but, whatever might be formerly the opinion of the clergy, it is now held as established common law, that colleges are lay-corporations, though sometimes totally composed of ecclesiastical persons; and that the right of visitation does not arise from any principles of the canon law, but of necessity was created by the common law[e]. and yet the power and jurisdiction of visitors in colleges was left so much in the dark at common law, that the whole doctrine was very unsettled till king william's time; in the sixth year of whose reign, the famous case of _philips and bury_ happened[f]. in this the main question was, whether the sentence of the bishop of exeter, who (as visitor) had deprived doctor bury the rector of exeter college, could be examined and redressed by the court of king's bench. and the three puisne judges were of opinion, that it might be reviewed, for that the visitor's jurisdiction could not exclude the common law; and accordingly judgment was given in that court. but the lord chief justice, holt, was of a contrary opinion; and held, that by the common law the office of visitor is to judge according to the statutes of the college, and to expel and deprive upon just occasions, and to hear all appeals of course; and that from him, and him only, the party grieved ought to have redress; the founder having reposed in him so entire a confidence, that he will administer justice impartially, that his determinations are final, and examinable in no other court whatsoever. and, upon this, a writ of error being brought in the house of lords, they reversed the judgment of the court of king's bench, and concurred in sir john holt's opinion. and to this leading case all subsequent determinations have been conformable. but, where the visitor is under a temporary disability, there the court of king's bench will interpose, to prevent a defect of justice. thus the bishop of chester is visitor of manchester college: but, happening also to be warden, the court held that his power was suspended during the union of those offices; and therefore issued a peremptory _mandamus_ to him, as warden, to admit a person intitled to a chaplainship[g]. also it is said[h], that if a founder of an eleemosynary foundation appoints a visitor, and limits his jurisdiction by rules and statutes, if the visitor in his sentence exceeds those rules, an action lies against him; but it is otherwise, where he mistakes in a thing within his power. [footnote e: lord raym. .] [footnote f: lord raym. . mod. . shower. . skinn. . salk. . carthew. .] [footnote g: stra. .] [footnote h: lutw. .] iv. we come now, in the last place, to consider how corporations may be dissolved. any particular member may be disfranchised, or lose his place in the corporation, by acting contrary to the laws of the society, or the laws of the land; or he may resign it by his own voluntary act[i]. but the body politic may also itself be dissolved in several ways; which dissolution is the civil death of the corporation: and in this case their lands and tenements shall revert to the person, or his heirs, who granted them to the corporation; for the law doth annex a condition to every such grant, that if the corporation be dissolved, the grantor shall have the lands again, because the cause of the grant faileth[k]. the grant is indeed only during the life of the corporation; which _may_ endure for ever: but, when that life is determined by the dissolution of the body politic, the grantor takes it back by reversion, as in the case of every other grant for life. and hence it appears how injurious, as well to private as public rights, those statutes were, which vested in king henry viii, instead of the heirs of the founder, the lands of the dissolved monasteries. the debts of a corporation, either to or from it, are totally extinguished by it's dissolution; so that the members thereof cannot recover, or be charged with them, in their natural capacities[l]: agreeable to that maxim of the civil law[m], "_si quid universitati debetur, singulis non debetur; nec, quod debet universitas, singuli debent_." [footnote i: rep. .] [footnote k: co. litt. .] [footnote l: lev. .] [footnote m: _ff._ . . .] a corporation may be dissolved, . by act of parliament, which is boundless in it's operations; . by the natural death of all it's members, in case of an aggregate corporation; . by surrender of it's franchises into the hands of the king, which is a kind of suicide; . by forfeiture of it's charter, through negligence or abuse of it's franchises; in which case the law judges that the body politic has broken the condition upon which it was incorporated, and thereupon the incorporation is void. and the regular course is to bring a writ of _quo warranto_, to enquire by what warrant the members now exercise their corporate power, having forfeited it by such and such proceedings. the exertion of this act of law, for the purposes of the state, in the reigns of king charles and king james the second, particularly by seising the charter of the city of london, gave great and just offence; though perhaps, in strictness of law, the proceedings were sufficiently regular: but now[n] it is enacted, that the charter of the city of london shall never more be forfeited for any cause whatsoever. and, because by the common law corporations were dissolved, in case the mayor or head officer was not duly elected on the day appointed in the charter or established by prescription, it is now provided[o], that for the future no corporation shall be dissolved upon that account; and ample directions are given for appointing a new officer, in case there be no election, or a void one, made upon the charter or prescriptive day. [footnote n: stat. w. & m. c. .] [footnote o: stat. geo. i. c. .] the end of the first book. a collection of state-papers. [price two shillings.] a collection of state-papers, relative to the first acknowledgment of the sovereignty of the united states of america, and the reception of their minister plenipotentiary, by their high mightinesses the states general of the united netherlands to which is prefixed, the political character of john adams, ambassador plenipotentiary from the states of north america, to their high mightinesses the states general of the united provinces of the netherlands. by an american. likewise, an essay on canon and feudal law, by john adams, esq; london: printed for john fielding, no. , pater-noster-row; john debrett, opposite burlington-house, piccadilly; and john sewell, no. , cornhill. . [entered at stationers-hall.] introduction as the states general of the united provinces have acknowledged the independency of the united states of north america, and made a treaty of commerce with them, it may not be improper to prefix a short account of john adams, esq; who, pursuing the interests of his country, hath brought about these important events. mr. adams is descended from one of the first families which founded the colony of the massachusets bay in . he applied himself early to the study of the laws of his country; and no sooner entered upon the practice thereof, but he drew the attention, admiration, and esteem of his countrymen, on account of his eminent abilities and probity of character. not satisfied with barely maintaining the rights of individuals, he soon signalized himself in the defence of his country, and mankind at large, by writing his admirable dissertation on the canon and feudal laws; a work so well worth the attention of every man who is an enemy to ecclesiastical and civil tyranny, that it is here subjoined. it showed the author at an early period capable of seconding efficaciously the formation of republics on the principles of justice and virtue. such a man became most naturally an object of governor barnard's seduction. the perversion of his abilities might be of use in a bad cause; the corruption of his principles might tarnish the best. but the arts of the governor, which had succeeded with so many, were ineffectual with mr. adams, who openly declared he would not accept a favour, however flatteringly offered, which might in any manner connect him with the enemy of the rights of his country, or tend to embarrass him, as it had happened with too many others, in the discharge of his duty to the public. seduction thus failing of its ends, calumny, menaces, and the height of power were made use of against him. they lost the effect proposed, but had that, which the show of baseness and violence ever produce on a mind truly virtuous. they increased his honest firmness, because they manifested, that the times required more than ordinary exertions of manliness. in consequence of this conduct, mr. adams obtained the highest honours which a virtuous man can receive from the good and the bad. he was honoured with the disapprobation of the governor, who refused his admission into the council of the province; and he met with the applause of his countrymen in general, who sent him to assist at the congress in , in which he was most active, being one of the principal promoters of the famous resolution of the th of july, when the colonies declared themselves free and independent states. this step being taken, mr. adams saw the inefficacy of meeting the english commissioners, and voted against the proposition; congress, however, having determined to pursue this measure, sent him, together with dr. franklin and mr. rutledge, to general howe's head quarters. these deputies, leading with them, in a manly way, the hostages which the general had given for their security, marched to the place of conference, in the midst of twenty thousand men ranged under arms. whether this military shew was meant to do honour to the americans, or to give them an high idea of the english force, is not worth enquiry. if its object was to terrify the deputies of congress, it failed; making no more impression on them, than the sudden discovery of elephants did upon certain embassadors of old. the utmost politeness having passed on both sides, the conference ended, as had been foreseen, without any effect. mr. adams having been fifteen months one of the commissioners of the war department, and a principal suggestor of the terms to be offered to france, for forming treaties of alliance and commerce, he was sent to the court of versailles, as one of the ministers plenipotentiary of the united states. after continuing some time invested with this important trust, he returned to america; where he no sooner appeared, than he was called upon by the state of massachusets bay, to assist in forming a system of government, that might establish the rights of all on clear, just, and permanent grounds. he was never employed in a business more agreeable to himself; for, the happiness of his fellow-citizens is his great object. he sought not honour in this arduous undertaking, but it fell ultimately upon _him_. he has gained it all over europe. if he endeavoured to obtain by it the esteem and love of his countrymen, he has succeeded; for they know they are chiefly indebted to him for the constitution of the state of massachusets bay, as it stands at this day. this important business being completed to the satisfaction of all, he came back to europe, with full powers from congress to assist at any conferences which might be opened for the establishment of peace; and had sent him, soon after, other powers to negociate a loan of money for the use of the united states; and to represent them, as their minister plenipotentiary, to their high mightinesses the states general of the united provinces. such important trusts shew, in what estimation he is held by his country; and his manner of executing them, that confidence is well placed. on his arrival in holland, nothing could have been more unpromising to the happy execution of his mission, than were the affairs of that country. the influence of the court of st. james's over a certain set of men, the interest that many had in the funds and commerce of england, and the dread of her power, which generally prevailed throughout the provinces, obliged him to act with the utmost circumspection. unknown, and at first unnoticed, (at least but by a few) he had nothing to do but to examine into the state of things, and characters of the leading men. this necessary knowledge was scarcely acquired, when the conduct of the british ministry afforded him an opportunity of shewing himself more openly. the contempt, insult and violence, with which the whole belgic nation was treated, gave him great advantages over the english embassador at the hague. he served himself of his rivals rashness and folly with great coolness and ability; and, by consequence, became so particularly obnoxious to the prevailing party, that he did not dare to go to a village scarcely a day's journey from his residence, but with the utmost secrecy: the fate of dorislaus was before his eyes. having been therefore under the necessity of making himself a burgher of amsterdam, for protection against the malice of the times, he soon gained the good opinion of the magistrates by his prudent conduct as a private citizen. the bad policy of england, enabled him to step forward as a public character. as such he presented to the states general his famous memorial, dated the th of april, , wherein the declaration of the independency of america on the th of july, , was justified; the unalterable resolution of the united states to abide thereby asserted; the interest that all the powers of europe, and particularly the states general, have in maintaining it, proved; the political and natural grounds of a commercial connection between the two republics pointed out; and information given that the memorialist was invested with full powers from congress to treat with their high mightinesses for the good of both countries. the presenting this memorial was a delicate step; mr. adams was sensible, that he alone was answerable for its consequences, it being taken not merely from his own single suggestion, but contrary to the opinion and advice of some of great weight and authority. however, maturely considering the measure, he saw it in all its lights, and boldly ventured on the undertaking. the full and immediate effect of it was not expected at once. the first object was, that the nation should consider the matter thoroughly; it being evident, that the more it was ruminated on, the more obvious would be the advantages and necessity of a connection between the two countries. when, therefore, the memorial was taken by the states general _ad referendum_, the first point was gained; the people thought of, and reasoned on the matter set before them; many excellent writings appeared, and they made the greatest impression; a weekly paper in particular, entitled le politique hollandois, drew the attention of all, on account of its information, the soundness of its argument, and its political judgment and patriotism. at length the time came when the work was to be compleated: the generality of the people of holland, seeing the necessity of opening a new course to their trade, which the violent aggression of england, and the commercial spirit of other nations tended to diminish, demanded an immediate connection with the united states of america, as a means of indemnifying themselves for the loss which a declared enemy had brought on them, and the rivalship of neighbouring nations might produce. mr. adams seized the occasion which the public disposition afforded him, and presented his ulteriour address of the th of january, ; referring therein to his memorial of the th of april, , and demanding a categorical answer thereto. the towns, cities, quarters, and states of the several provinces took the whole matter into immediate deliberation, and instructed their several deputies, in the states general, to concur in the admission of mr. adams in quality of minister plenipotentiary of the united states of north america. this was done by a resolution, passed by their high mightinesses the th of april, ; and on the d of the same month, mr. adams was admitted accordingly, with all the usual ceremonies. this event seems to have been as great a blow as any that has been given to the pride and interests of england during the war. it shewed the dutch were no longer over-awed by the power of their enemy, for they dared to brave him to his teeth. it set an example to other nations, to partake of the commerce of those countries, which england had lost by her inconsiderate conduct. it confounded at once the english partisans in holland, and proved that sir joseph yorke was not the great minister he had hitherto been supposed to be. it gave occasion to an ambassador of one of the greatest monarchs of europe to say to mr. adams: _vous avez frappé, monsieur, le plus grand coup de tout l' europe. c'est le plus grand coup, qui à etè frappé dans le cause americain. c'est vous qui à effrayé et terrasse les anglomannes. c'est vous qui à rempli cette nation d'enthousiasme._ and then turning to another gentleman, he said, _ce n'est pas pour faire compliment a monsieur adams, que je dis cela: c'est parcequ'en verité, je crois que c'est sa due._ this diplomatic compliment has been followed by others. i transcribe with pleasure a convivial one contained in the following lines, which an ingenious and patriotic dutchman addressed to his excellency mr. adams, on drinking to him out of a large beautiful glass, which is called a _baccale_, and had inscribed round its brim, _aurea libertas_: aurea libertas! _gaude! pars altera mundi vindice te renuit subdere colla jugo. hæc tibi legatum quem consors belga recepit pectore sincero pocula plena fero. utraque gens nectet, mox suspicienda tyrannis, quæ libertati vincula sacra precor!_ they who have an opportunity of knowing his excellency mr. adams trace in his features the most unequivocal marks of probity and candour. he unites to that gravity, suitable to the character with which he is invested, an affability, which prejudices you in his favour. although of a silent turn, as william the prince of orange was, and most great men are, who engage in important affairs, he has nevertheless a natural eloquence for the discussion of matters which are the objects of his mission, and for the recommending and enforcing the truths, measures, and systems, which are dictated by sound policy. he has neither the corrupted nor corrupting principles of lord chesterfield, nor the qualities of sir joseph yorke, but the plain and virtuous demeanor of sir william temple. like him too he is simple in negociation, where he finds candour in those who treat with him. otherwise he has the severity of a true republican, his high idea of virtue giving him a rigidness, which makes it difficult for him to accommodate himself to those intrigues which european politics have introduced into negociation. "_il sait que l'art de negocier n'est pas l'art d'intriguer et de tromper; quil ne consiste pas à corrompre; à se jouer des sermens et à semer les alarmes et les divisions; qu'un negociateur habile peut parvenir à son but sans ces expediens, qui sont la triste ressource des intriguans, sans avoir recours à des manoeuvres detournès et extraordinaires. il trouve dans la nature même des affaires quil négocie des incidens propres à faire réussir tous ses projéts._" memorial to their high mightinesses the states general of the united provinces of the low countries. _high and mighty lords_; the subscriber has the honour to propose to your high mightinesses, that the united states of america, in congress assembled, have lately thought fit to send him a commission (with full powers and instructions) to confer with your high mightinesses concerning a treaty of amity and commerce, an authentic copy of which he has the honour to annex to this memorial. at the times when the treaties between this republic and the crown of great britain were made, the people, who now compose the united states of america, were a part of the english nation; as such, allies of the republic, and parties to those treaties; entitled to all their benefits, and submitting chearfully to all their obligations. it is true, that when the british administration, renouncing the ancient character of englishmen for generosity, justice, and humanity, conceived the design of subverting the political systems of the colonies; depriving them of the rights and liberties of englishmen, and reducing them to the worst of all forms of government; starving the people by blockading the ports, and cutting off their fisheries and commerce; sending fleets and armies to destroy every principle and sentiment of liberty, and to consume their habitations and their lives; making contracts for foreign troops, and alliances with savage nations to assist them in their enterprise; casting formally, by act of parliament, three millions of people at once out of the protection of the crown: then, and not till then, did the united states of america, in congress assembled, pass that memorable act, by which they assumed an equal station among the nations. this immortal declaration, of the th of july, , when america was invaded by an hundred vessels of war, and, according to estimates laid before parliament, by , of veteran troops, was not the effect of any sudden passion or enthusiasm; but a measure which had been long in deliberation among the people, maturely discussed in some hundreds of popular assemblies, and by public writings in all the states. it was a measure which congress did not adopt, until they had received the positive instructions of their constituents in all the states: it was then unanimously adopted by congress, subscribed by all its members, transmitted to the assemblies of the several states, and by them respectively accepted, ratified, and recorded among their archives; so that no decree, edict, statute, placart, or fundamental law of any nation was ever made with more solemnity, or with more unanimity or cordiality adopted, as the act and consent of the whole people, than this: and it has been held sacred to this day by every state, with such unshaken firmness, that not even the smallest has ever been induced to depart from it; although the english have wasted many millions, and vast fleets and armies, in the vain attempt to invalidate it. on the contrary, each of the thirteen states has instituted a form of government for itself, under the authority of the people; has erected its legislature in the several branches; its executive authority with all its offices; its judiciary departments and judges; its army, militia, revenue, and some of them their navy: and all those departments of government have been regularly and constitutionally organized under the associated superintendency of congress, now these five years, and have acquired a consistency, solidity, and activity equal to the oldest and most established governments. it is true, that in some speeches and writings of the english it is still contended that the people of america are still in principle and affection with them: but these assertions are made against such evident truth and demonstration, that it is surprising they should find at this day one believer in the world. one may appeal to the writings and recorded speeches of the english for the last seventeen years, to shew that similar misrepresentations have been incessantly repeated through that whole period; and that the conclusion of every year has in fact confuted the confident assertions and predictions of the beginning of it. the subscriber begs leave to say from his own knowledge of the people of america, (and he has a better right to obtain credit, because he has better opportunities to know, than any briton whatsoever) that _they are unalterably determined to maintain their independence_. he confesses, that, notwithstanding his confidence through his whole life in the virtuous sentiments and uniformity of character among his countrymen, their unanimity has surprised him. that all the power, arts, intrigues, and bribes which have been employed in the several states, should have seduced from the standard of virtue so contemptible a few, is more fortunate than could have been expected. this independence stands upon so broad and firm a bottom of the people's interests, honour, consciences, and affections, that it will not be affected by any successes the english may obtain either in america, or against the european powers at war, nor by any alliances they can possibly form; if indeed, in so unjust and desperate a cause they can obtain any. nevertheless, although compelled by necessity, and warranted by the fundamental laws of the colonies, and of the british constitution, by principles avowed in the english laws, and confirmed by many examples in the english history; by principles interwoven into the history and public right of europe, in the great examples of the helvetic and belgic confederacies, and many others; and frequently acknowledged and ratified by the diplomatic body; principles founded in eternal justice, and the laws of god and nature, to cut asunder for ever all the ties which had connected them with great britain: yet the people of america did not consider themselves as separating from their allies, especially the republic of the united provinces, or departing from their connections with any of the people under their government; but, on the contrary, they preserved the same affection, esteem and respect, for the dutch nation, in every part of the world, which they and their ancestors had ever entertained. when sound policy dictated to congress the precaution of sending persons to negotiate natural alliances in europe, it was not from a failure in respect that they did not send a minister to your high mightinesses, with the first whom they sent abroad: but, instructed in the nature of the connections between great britain and the republic, and in the system of peace and neutrality, which she had so long pursued, they thought proper to respect both so far, as not to seek to embroil her with her allies, to excite divisions in the nation, or lay embarrassments before it. but, since the british administration, uniform and persevering in injustice, despising their allies, as much as their colonists and fellow-subjects; disregarding the faith of treaties, as much as that of royal charters; violating the law of nations, as they had before done the fundamental laws of the colonies and the inherent rights of british subjects, have arbitrarily set aside all the treaties between the crown and the republic, declared war and commenced hostilities, the settled intentions of which they had manifested long before; all those motives, which before restrained the congress, cease: and an opportunity presents itself of proposing such connections, as the united states of america have a right to form, consistent with the treaties already formed with france and spain, which they are under every obligation of duty, interest and inclination, to observe sacred and inviolate; and consistent with such other treaties, as it is their intention to propose to other sovereigns. if there was ever among nations a natural alliance, one may be formed between the two republics. the first planters of the four northern states found in this country an asylum from persecution, and resided here from the year to the year , twelve years preceding their migration. they ever entertained and have transmitted to posterity, a grateful remembrance of that protection and hospitality, and especially of that religious liberty they found here, having sought it in vain in england. the first inhabitants of two other states, new-york and new-jersey, were immediate emigrants from this nation, and have transmitted their religion, language, customs, manners and character: and america in general, until her connections with the house of bourbon, has ever considered this nation as her first friend in europe, whose history, and the great characters it exhibits, in the various arts of peace, as well as atchievements of war by sea and land, have been particularly studied, admired and imitated in every state. a similitude of religion, although it is not deemed so essential in this as in former ages to the alliance of nations, is still, as it ever will be thought, a desirable circumstance. now it may be said with truth, that there are no two nations, whose worship, doctrine and discipline, are more alike than those of the two republics. in this particular therefore, as far as it is of weight, an alliance would be perfectly natural. a similarity in the forms of government, is usually considered as another circumstance, which renders alliances natural: and although the constitutions of the two republics are not perfectly alike, there is yet analogy enough between them, to make a connection easy in this respect. in general usages, and in the liberality of sentiments in those momentous points, the freedom of enquiry, the right of private judgment and the liberty of conscience, of so much importance to be supported in the world, and imparted to all mankind, and which at this hour are in more danger from great britain and that intolerant spirit which is secretly fomenting there, than from any other quarter, the two nations resemble each other more than any others. the originals of the two republics are so much alike, that the history of one seems but a transcript from that of the other: so that every dutchman instructed in the subject, must pronounce the american revolution just and necessary, or pass a censure upon the greatest actions of his immortal ancestors: actions which have been approved and applauded by mankind, and justified by the decision of heaven. but the circumstance, which perhaps in this age has stronger influence than any other in the formation of friendships between nations, is the great and growing interest of commerce; of the whole system of which through the globe, your high mightinesses are too perfect masters for me to say any thing that is not familiarly known. it may not, however, be amiss to hint, that the central situation of this country, her extensive navigation, her possessions in the east and west indies, the intelligence of her merchants, the number of her capitalists, and the riches of her funds, render a connection with her very desirable to america: and, on the other hand, the abundance and variety of the productions of america, the materials of manufactures, navigation and commerce; the vast demand and consumption in america of the manufactures of europe, of merchandises from the baltic, and from the east indies, and the situation of the dutch possessions in the west indies, cannot admit of a doubt, that a connection with the united states would be useful to this republic. the english are so sensible of this, that notwithstanding all their professions of friendship, they have ever considered this nation as their rival in the american trade; a sentiment which dictated and maintained their severe act of navigation, as injurious to the commerce and naval power of this country, as it was both to the trade and the rights of the colonists. there is now an opportunity offered to both, to shake off this shackle for ever. if any consideration whatever could have induced them to have avoided a war with your high mightinesses, it would have been the apprehension of an alliance between the two republics: and it is easy to foresee, that nothing will contribute more to oblige them to a peace, than such a connection once completely formed. it is needless to point out, particularly, what advantages might be derived to the possessions of the republic in the west indies from a trade opened, protected and encouraged, between them and the continent of america; or what profits might be made by the dutch east india company, by carrying their effects directly to the american market; or how much even the trade of the baltic might be secured and extended by a free intercourse with america; which has ever had so large a demand, and will have more for hemp, cordage, sail-cloth, and other articles of that commerce: how much the national navigation would be benefited by building and purchasing ships there: how much the number of seamen might be increased, or how much more advantageous it would prove to both countries, to have their ports mutually opened to their men of war and privateers, and to their prizes. if, therefore, an analogy of religion, government, origin, manners, and the most extensive and lasting commercial interests, can form a ground and an invitation to political connections, the subscriber flatters himself that, in all these particulars, the union is so obviously natural, that there has seldom been a more distinct designation of providence to any two distant nations to unite themselves together. it is further submitted to the wisdom and humanity of your high mightinesses, whether it is not visibly for the good of mankind, that the powers of europe, who are convinced of the justice of the american cause, (and where is one to be found that is not?) should make haste to acknowledge the independence of the united states, and form equitable treaties with them, as the surest means of convincing great britain of the impracticability of her pursuits? whether the late marine treaty concerning the rights of neutral vessels, noble and useful as it is, can be established against great britain, who will never adopt it, nor submit to it, but from necessity, without the independence of america? whether the return of america, with her nurseries of seamen and magazines of materials for navigation and commerce, to the domination and monopoly of great britain, if that were practicable, would not put the possessions of other nations beyond seas wholly in the power of that enormous empire, which has been long governed wholly by the feeling of its own power, at least without a proportional attention to justice, humanity, or decency. when it is obvious and certain that the americans are not inclined to submit again to the british government, on the one hand, and that the powers of europe ought not and could not with safety consent to it, if they were so inclined, on the other; why should a source of contention be left open, for future contingencies to involve the nations of europe in still more bloodshed, when, by one decisive step of the maritime powers, in making treaties with a nation long in possession of sovereignty by right and in fact, it might be closed? the example of your high mightinesses would, it is, hoped, be followed by all the maritime powers, especially those which are parties to the late marine treaty: nor can the apprehension that the independence of america would be injurious to the trade of the baltic, be any objection. this jealousy is so groundless that the reverse would happen. the freight and insurance in voyages across the atlantic are so high, and the price of labour in america so dear, that tar, pitch, turpentine, and ship-timber never can be transported to europe at so cheap a rate, as it has been and will be afforded by countries round the baltic. this commerce was supported by the english before the revolution with difficulty, and not without large parliamentary bounties. of hemp, cordage, and sail-cloth there will not probably be a sufficiency raised in america for her own consumption in many centuries, for the plainest of all reasons, because these articles may be imported from amsterdam, or even from petersburg and archangel, cheaper than they can be raised at home. america will therefore be for ages a market for these articles of the baltic trade. nor is there more solidity in another supposition, propagated by the english to prevent other nations from pursuing their true interests, that the colonies of other nations will follow the example of the united states. those powers, who have as large possessions as any beyond seas, have already declared against england, apprehending no such consequences. indeed there is no probability of any other power of europe following the example of england, in attempting to change the whole system of the government of colonies, and reducing them by oppression to the necessity of governing themselves: and, without such manifest injustice and cruelty on the part of the metropolis, there is no danger of colonies attempting innovations. established governments are founded deep in the hearts, the passions, the imaginations and understandings of the people; and without some violent change from without, to alter the temper and character of the whole people, it is not in human nature to exchange safety for danger, and certain happiness for very precarious benefits. it is submitted to the consideration of your high mightinesses, whether the system of the united states, which was minutely considered and discussed, and unanimously agreed on in congress in the year , in planning the treaty they proposed to france, to form equitable commercial treaties with all the maritime powers of europe, without being governed or monopolized by any: a system which was afterwards approved by the king, and made the foundation of the treaties with his majesty: a system to which the united states have hitherto constantly adhered, and from which they never will depart, unless compelled by some powers declaring against them, which is not expected, is not the only means of preventing this growing country from being an object of everlasting jealousies, rivalries, and wars among the nations. if this idea be just, it follows, that _it is the interest of every state in europe to acknowledge american independency immediately_. if such benevolent policy should be adopted, the new world will be a proportional blessing to every part of the old. the subscriber has the farther honour of informing your high mightinesses, that the united states of america, in congress assembled, impressed with an high sense of the wisdom and magnanimity of your high mightinesses, and of your inviolable attachment to the rights and liberties of mankind, and being desirous of cultivating the friendship of a nation, eminent for its wisdom, justice, and moderation, have appointed the subscriber to be their minister plenipotentiary to reside near you, that he may give you more particular assurances of the great respect they entertain for your high mightinesses; beseeching your high mightinesses to give entire credit to every thing, which their said minister shall deliver on their part, especially when he shall assure you of the sincerity of their friendship and regard. the original letter of credence, under the seal of congress, the subscriber is ready to deliver to your high mightinesses, or to such persons as you shall direct to receive it. he has also a similar letter of credence to his most serene highness the prince stadtholder. all which is respectfully submitted to the consideration of your high mightinesses, together with the propriety of appointing some person, or persons, to treat on the subject of his mission, by leyden april . j. adams guelderland. in the assembly of the states of guelderland, holden in october , to consider of the requisition of the king of france, of a negotiation of five millions of florins, under the warranty of the republic, some were for an alliance with france. the baron nagel, seneschal of zutphen, avoided putting of the question, and said among other things, "that he had rather acknowledge the independence of the americans, than contract an alliance with france." the baron van der capellen de marsch was for an alliance with france and america too. he observed, "that nothing being more natural than to act in concert with the enemies of our enemy, it was an object of serious deliberation, to see, if the interest of the republic did not require to accept, without farther tergiversations, the invitations and offers of the americans: that no condescension for england could hinder us, at present, from uniting ourselves against a common enemy, with a nation so brave and so virtuous: a nation, which, after our example, owes its liberty to its valour, and even at this moment is employed in defending itself from the tyranny of the enemy of the two nations: that, consequently, nothing could restrain us from acknowledging the independence of this new republic: that our conduct differed very much from that holden by our ancestors, who allied themselves with the portuguese, as soon as they shook off the yoke of the spaniards: that there was no doubt, that the said alliances with the enemies of our enemy would soon restrain his fury, and operate a general peace advantageous for us." the quarter of oostergo. _the quarter of oostergo, in the province of friesland, in december, , was the first public body which proposed a connection with the united states of america in these words._ every impartial patriot has a long time perceived that, in the direction of affairs relative to this war with england, there have been manifested an inconceivable lukewarmness and sloth; but they discover themselves still more, at this moment, by the little inclination which, in general, the regencies of the belgic provinces testify to commence a treaty of commerce and friendship with the new republic of the thirteen united states of north america; and to contract engagements, at least during the continuance of this common war with the crowns of france and spain. nevertheless, the necessity of these measures appears clearly, since, according to our judgments, nothing was more natural, nor more conformable to sound policy, founded upon the laws of the nature the most precise, than that this republic, immediately after the formal declaration of war by the english (not being yet able to do any thing by military exploits, not being in a state of defence sufficiently respectable to dare, at sea, to oppose one fleet or squadron, to our perfidious enemy) should have commenced by acknowledging, by a public declaration, the independence of north america. this would have been from that time the greatest step to the humiliation of england, and our own re-establishment; and by this measure, the republic would have proved her firm resolution to act with vigour. every one of our inhabitants, all europe, who have their eyes fixed upon us, the whole world expected, with just reason, this measure from the republic. it is true, that before the formal declaration of war by england, one might perhaps have alleged some plausible reason, to justify, in some degree, the backwardness in this great and interesting affair. but, as at present great britain is no longer our secret, but declared enemy, which dissolves all the connections between the two nations; and as it is the duty, not only of all the regencies, but also of all the citizens of this republic, to reduce, by all imaginable annoyances, this enemy so unjust to reason, and to force him, if possible, to conclude an honourable peace; why should we hesitate any longer, to strike, by this measure so reasonable, the most sensible blow to the common enemy? will not this delay occasion a suspicion that we prefer the interest of our enemy to that of our country? north america, so sensibly offended by the refusal of her offer; france and spain, in the midst of a war supported with activity, must they not regard us as the secret friends, and favourers of their and our common enemy? have they not reason to conclude from it, that our inaction ought to be less attributed to our weakness, than to our affection for england? will not this opinion destroy all confidence in our nation heretofore so renowned in this respect? and our allies, at this time natural, must they not imagine, that it is better to have in us declared enemies than pretended friends? and shall we not be involved in a ruinous war, which we might have rendered advantageous, if it had been well directed? while on the other hand it is evident, that by a new connection with the states of north america, by engagements at least during this war with france and spain, we shall obtain, not only the confidence of these formidable powers, instead of their distrust, but by this means we shall moreover place our colonies in safety against any insult; we shall have a well grounded hope, of recovering, with the aid of the allied powers, our lost possessions, if the english should make themselves masters of them; and our commerce at present neglected, and so shamefully pillaged, would reassume a new vigour; considering that in such case, as it is manifestly proved by solid reasons, this republic would derive from this commerce the most signal advantages. but, since our interest excites us forcibly to act in concert with the enemies of our enemy; since the united states of america invited us to it long ago; since france appears inclined to concert her military operations with ours (although this power has infinitely less interest to ally itself with us, whose weakness manifests itself in so palpable a manner, than we have to form an alliance, the most respectable in the universe) it is indubitably the duty of every regency, to promote it with all their forces, and with all the celerity imaginable. to this end, we have thought it our duty, to lay it before your noble mightinesses, in the firm persuasion that the zeal of your noble mightinesses will be as earnest as ours, to concur to the accomplishment of this point, which is for us of the greatest importance; that, consequently, your noble mightinesses will not delay to co-operate with us, that, upon this important subject, there may be made to their high mightinesses, a proposition so vigorous, that it may have the desired success: and that this affair, of an importance beyond all expression for our common country, may be resolved and decided by unanimous suffrages, and in preference to every particular interest. ulteriour address. _on the th january, , mr. adams waited on the president van den sandheuvel, and addressed him as follows._ on the fourth of may, i had the honour of a conference with the president of their high mightinesses, in which i informed him, that i had received from the united states of america a commission, with full powers and instructions to propose and conclude a treaty of amity and commerce, between the said united states of america and the united provinces of the netherlands. at the same conference, i had the honour to demand an audience of their high mightinesses, in order to present to them my letters of credence and full powers. the president assured me, that he would make report of all that i had said to him to their high mightinesses, in order that it might be transmitted to the several members of the sovereignty of this country, for their deliberations and decisions.--i have not yet been honoured with an answer. i now do myself the honour to wait on you, sir, to demand, as i do, a categorical answer, that i may be able to transmit it to the united states of america. guelderland. in an extraordinary assembly of the county of zutphen, held at nimeguen the d of february, , the following measures were taken. after the report of the committee of this province to the generality, laid this day upon the table, relative to what passed in the precedent assembly, and after the examination of an extract of the register of the resolutions of their high mightinesses the states general of the low countries, of the ninth of last month, in relation to the ulteriour address of mr. adams to the president of their high mightinesses, concerning the presentation of his letters of credence to their high mightinesses, in behalf of the united states of america, demanding a categorical answer, whereof the lords the deputies of the respective provinces have taken copies; the baron robert jasper van der capellen de marsch, first by word of mouth, and afterwards in writing, proposed, and insisted, at the assembly of this quarter, that, at present, and without delay, we should make a point of deliberation, and that we should make upon the table the necessary overture, conceived more at length, in the advice of this nobleman, inserted in these terms: noble and mighty lords! the subscriber judges, upon good grounds, and with out fear of being contradicted, that he is able to affirm, that it is more than time that we should give a serious attention to the offer and the invitation, in every sense honourable and advantageous for this republic, of friendship, and reciprocal connections with the thirteen american provinces, now become free _at the point of the sword_, in such sort, that the categorical answer demanded by their minister mr. adams, may become a subject of the deliberations of your grand mightinesses, and that you may decide as soon as possible, concerning their respective interests. he judges, that he ought not to have any farther scruple in this regard; and that the uncertain consequences of the mediation offered by russia cannot, when certain advantages for this republic are in question, hinder that, out of regard for an enemy, with whom we (however salutary the views of her imperial majesty are represented) cannot make any peace, at the expence of a negligence so irreparable: that a longer delay, to unite ourselves to a nation already so powerful, will have for its consequence, that our inhabitants will lose the means of extending, in a manner the most advantageous, their commerce and their prosperity: that by the vigorous prohibition to import english manufactures into america, our manufactures, by means of precautions taken in time, will rise out of their state of languor: and that, by delaying longer to satisfy the wishes of the nation, her leaders will draw upon them the reproach of having neglected and rejected the favourable offers of providence: that, on the contrary, by adopting these measures, the essential interests of this unfortunate people will be taken to heart. the subscriber declaring, moreover, that he will abandon this unpardonable negligence of an opportunity favourable for the republic, to the account of those whom it may concern; protesting against all the fatal consequences that a longer refusal of these necessary measures will certainly occasion: whereupon he demanded, that for his discharge, this note should be inserted in the registers of the quarter. _signed_ r. j. van der capellen. this advice having been read, mr. jacob adolf de heekeren d'enghuisen, counsellor and first master of accounts in guelderland, president at this time of the assembly of the quarter, represented to the said robert jasper van der capellen de marsch, that "although he must agree to the justice of all that he had laid down, besides several other reasons, equally strong, which occurred to his mind, the deliberation upon the point in question appeared to him premature, considering that the lords the states of holland and west friesland, and of zealand, as the principal commercial provinces, who are directly interested, had not nevertheless as yet explained themselves in this regard; consequently that it would not be so convenient for the states of this duchy and county, who are not interested in it, but in a consequential and indirect manner, to form the first their resolutions in this respect: for this reason he proposed to consideration, whether it would not be more proper to postpone the deliberations upon this matter to a future opportunity." nevertheless, the before-mentioned robert jasper van der capellan de marsch insisting, that the voices should be collected upon the proposition and advice in question, and thereupon having deliberated, their noble mightinesses have thought fit to resolve, that although the motives alledged by this nobleman in his advice, appear to merit a serious consideration, nevertheless, for the reasons before alleged, they judge, that they ought to suspend the decision of it, until the commercial provinces have formed their resolutions concerning it: and that, upon the requisition of robert jasper van der capellan de marsch, there be delivered to him an extract of the present, upon one as well the other. _signed_ herm. schomaker. petition of leyden. to the noble, great, and venerable lords of the grand council of the city of leyden. the undersigned, all manufacturers, merchants, and other traders of this city, most respectfully give to understand, that it is a truth, as melancholy, as it is universally known, that the declension of manufactures, which all the well-disposed citizens have remarked with the most lively grief, from the beginning of this century, has increased more and more for several years; and that this principal branch of the subsistence of the good citizens, has fallen into such a state of languor, that our city, once so flourishing, so populous, so celebrated, on account of its commerce and of its trades, appears to be threatened with total ruin; that the diminution of its merchants houses, on the one hand, and on the other, a total loss, or the sensible decrease of several branches of commerce, furnish an evident proof of it; which the petitioners could demonstrate by several examples, if there were need of them to convince. your noble and grand lordships, to whom the increase of the multitude of the poor, the deplorable situation of several families, heretofore in easy circumstances, the depopulation of the city, which one cannot observe without emotion in the ruins of several streets, once neat and well inhabited, are fully known, will recollect no doubt upon this occasion, with grief, that this state of languor must appear so much the more desperate, if your noble and grand lordships will take into consideration, that in this decay of trades and manufactures, we find a new reason of their farther fall, considering, that from the time there is not continual employment, and an uninterrupted sale, the workmen desert in such manner, that when considerable commissions arrive, we cannot find capable hands, and we see ourselves entirely out of a condition to execute these orders. that the petitioners, with all the true friends of their country, extremely affected with this alarming situation of so rich a source of the public prosperity, have indeed sought the means of a remedy, in amending some defects, from which it seemed to arise, at least in part; but that the measures taken in this view, as is well know to your noble and grand lordships, have not had the desired effect; at least, that they have not produced a re-establishment so effectual, that we have been able to observe a sensible influence in the increase of the sales of the manufactures of leyden, as appears most evidently, by a comparison of the pieces fabricated here, which have been heretofore carried to the divers markets of this city, with those which are carried there at this day; a comparison which a true citizen cannot of consider without regret. that experience has also taught the petitioners, that the principal cause of the decay of the manufactures of holland, particularly those of leyden, is not to be found in any internal vice, either in the capacity, or the oeconomy of the inhabitants, but in circumstances which have happened abroad; and to which it is, consequently, beyond the power of the petitioners, or of any citizen whatsoever, to provide a remedy. that we might cite, for example, the commerce of our manufactures with dantzic; and, through that commercial city, with all poland; a commerce which was carried on with success and advantage heretofore in our city, but is absolutely interrupted at this day, and vanished, by the revolution which has happened in that kingdom, and by the burthensome duties to which the navigation of the vistula has been subjected. but that, without entering into a detail of similar particular shackles, of which we might reckon a great number; the principal cause of the languishing state of our manufactures consists in the jealous emulation of the neighbouring nations, or rather of all the people of europe; considering that, in this age, the several princes and governments, enlightened in the real sources of the public prosperity, and the true interests of their subjects, attach themselves with emulation to revive in their kingdoms and states the national industry, commerce, and navigation; to encourage them, and promote them even by exclusive privileges, or by heavy impositions upon foreign merchandizes; privileges and impositions, which tend equally to the prejudice of the commerce and the manufactures of our country, as your noble and grand lordships will easily recollect the examples in the austrian states and elsewhere. that in the midst of these powers and nations, emulous or jealous, it is impossible for the citizens of our republic, however superior their manufactures may be in quality and fineness, to resist a rivalry so universal; especially considering the dearness of labour, caused by that of the means of subsistence; which, in its turn, is a necessary consequence of the taxes and imposts which the inhabitants of this state pay in a greater number, and a higher rate, than in any other country, by reason of her natural situation, and of its means to support itself; so that by the continual operation of this principal, but irreparable cause of decline, it is to be feared, that the impoverishment and the diminution of the good citizens increasing with the want of employment, the dutch nation, heretofore the purveyor of all europe, will be obliged to content itself with the sale of its own productions in the interior of the country; (and how much does not even this resource suffer by the importation of foreign manufactures?) and that leyden, lately so rich and flourishing, will exhibit desolated quarters in its declining streets; and its multitude, disgraced with want and misery; an affecting proof of the sudden fall of countries formerly overflowing with prosperity. that, if we duly consider these motives, no citizen, whose heart is upright, (as the petitioners assure themselves) much less your noble and grand lordships, whose good dispositions they acknowledge with gratitude, will take it amiss, that we have fixed our eyes on the present conjuncture of affairs, to enquire whether these times might not furnish them some means of reviving the languishing manufactures of leyden; and that after a consideration well matured, they flatter themselves with the hope (a hope which unprejudiced men will not regard as a vain chimera) that in fact, by the present circumstances, there opens in their favour an issue for arriving at the re-establishment desired. that from the time when the rupture between great britain and the colonies upon the continent of north america appeared to be irreparable, every attentive spectator of this event perceived, or at least was convinced, that this rupture, by which there was born a republic, as powerful as industrious, in the new world, would have the most important consequences for commerce and navigation; and that the other commercial nations of europe would soon share in a very considerable commerce, whereof the kingdom of great britain had reserved to itself, until that time, the exclusive possession by its act of navigation, and by the other acts of parliament prescribed to the colonies; that in the time of it, this reflection did not escape your petitioners; and they foresaw, from that time, the advantage which might arise, in the sequel, from a revolution so important for the united provinces in general, and for their native city in particular. but that they should have been afraid to have placed this favourable occasion before the eyes of your noble and grand lordships, at an epoch when the relations which connected our republic with great britain, her neighbour, seemed to forbid all measures of this nature, or at least ought to make them be considered as out of season. that, in the mean time, this reason of silence has entirely ceased, by the hostilities which the said kingdom has commenced against our republic, under pretences, and in a manner the injustice of which has been demonstrated by the supreme government of the state, with an irrefragable evidence, in the eyes of impartial europe; whilst the petitioners themselves, by the illegal capture of so large a number of dutch ships, and afterwards by the absolute stagnation of navigation, and of voyages to foreign countries, have experienced in the most grievous manner, the consequences of this hostile and unforeseen attack, and feel them still every day, as is abundantly known to your noble and grand lordships. that since that epoch, a still more considerable number of workmen must have remained without employment, and several fathers of families have quitted the city, abandoning, to the farther expense of the treasury of the poor, their wives and their children plunged in misery. that during this rupture, which has subsisted now for fifteen months, there has occurred another circumstance, which has encouraged the petitioners still more, and which to them appears to be of such a nature, that they would be guilty of an excessive indifference, and an unpardonable negligence towards the city, towards the lower class of inhabitants, towards their own families, and towards themselves, if they should delay any longer to lay open their interests to your noble and grand lordships, in a manner the most respectful, but the most energetic; to wit, that the united states of america have very rigorously forbidden, by a resolution of congress, agreed to in all the thirteen states, the importation of all english manufactures, and in general, all the merchandizes fabricated in the dominions which yet remain to great britain. that the effect of this prohibition must necessarily be a spirit of emulation between all the commercial nations to take place of the british merchants and manufacturers in this important branch of exportation, which is entirely cut off from them at this day. that nevertheless, among all the nations there is none which can entertain a hope, better founded, and more sure, in this respect, than the citizens of this free republic, whether on account of the identity of religion, the fashion of living, and the manners, whether because of the extent of its commerce, and the convenience of its navigation, but above all, by reason of the activity and good faith, which still distinguishes (without boasting too much) the dutch nation above all other people; qualities in consideration of which, the citizens of united america are inclined even at present, to prefer, in equal circumstances, the citizens of our free states, to every other nation. that, nevertheless, all relations and connections of commerce between the two people, cannot but be uncertain and fluctuating, as long as their offers and reciprocal engagements are not fixed and regulated by a treaty of commerce. that at this day, if ever, (according to the respectful opinion of the petitioners) there exists a necessity the most absolute for the conclusion of a similar treaty of commerce, there, where we may say with truth, that there arises for the republic, for our leyden especially, a moment, which once escaped, perhaps never will return; since the national assembly of great britain, convinced, by a terrible and fatal experience, of the absolute impossibility of re-attaching united america to the british crown, has laid before the throne its desire to conclude a necessary peace with a people, free as this day at the price of their blood: so that if this peace should be once concluded, the dutch nation would see itself perhaps excluded from all advantages of commerce with this new republic, or at least would be treated by her with an indifference, which the small value which we should have put upon its friendship in former times, would seem to merit. that, supposing, for a moment, that a peace between england and united america were not so near as we have reason to presume, not without probability, there would be found in that case nations enough who will be jealous of acquiring, after the example of france, the earliest right to commerce with a country, which already peopled by several millions of inhabitants, augments every day in population, in a manner incredible; but, as a new people, unprovided as yet with several necessary articles, will procure a rich, even an immense outlet, for the fabricks and manufactures of europe. that, however manifest the interest which the petitioners and all the citizens of leyden would have in the conclusion of such a treaty of commerce, they would however have made a scruple to lay before the paternal eyes of your noble and grand lordships the utility, or rather the necessity of such a measure, in respect to them, if they could believe, that their particular advantage would be, in any wise, contrary to the more universal interests of all the republic. but, as far as the petitioners may judge, as citizens, of the situation, and the political existence of their country, they are ignorant of any reasons of this kind: but, on the contrary, they dare appeal to the unanimous voice of their fellow-citizens, well intentioned, in the other cities and provinces, even of the regents the most distinguished; since it is universally known that the province of friesland has already preceded the other confederates, by a resolution for opening negotiations with america; and that in other provinces, which have an interest less direct in commerce and manufactures, celebrated regents appear to wait merely for the example of the commercial provinces, for taking a similar resolution. that the petitioners will not detain the attention of your noble and grand mightinesses by a more ample detail of their reasons and motives, since, on one hand, they assure themselves, that these reasons and motives will not escape the enlightened and attentive judgment of your grand and noble lordships; and on the other, they know by experience, that your grand and noble lordships are disposed not to suffer any occasion to pass for promoting the well-being of their city, for advancing the prosperity of the citizens, to render their names dear to their contemporaries, and make them blessed by posterity. in which firm expectation, the petitioners address themselves to this grand council with the respectful but serious request, that it may please your noble and great lordships, to direct, by their powerful influence, thing in such sort, that, in the assembly highly respected of their noble and grand mightinesses the lords the states of holland and west friesland, there be opened deliberations, or if already opened, carried as speedily as possible to an effectual conclusion, such as they shall find the most proper for obtaining the lawful end, and fulfilling the desires of the petitioners, or as they shall judge conformable to the general interest. so doing, &c. leyden. _an address of thanks, with a farther petition_. to the noble, great, and venerable lords, the great council of the city of leyden, the undersigned manufacturers, merchants, and other traders, interested in the manufactures and fabrics of this city, give respectfully to understand, that a number of the undersigned, having taken, the th of march, the liberty to present to your noble and great lordships, a respectful request to obtain the conclusion of connections of commerce with united america, "the petitioners judge that they ought to hold it for a duty, as agreeable as indispensible, to testify their sincere gratitude, not only for the gracious manner in which your noble and great lordships have been pleased to accept that request, but also for the patriotic resolution that your noble and great lordships have taken upon its object; a resolution, in virtue of which the city of leyden (as the petitioners have the best reasons to suppose) hath been one of the first cities of this province, from whose unanimous co-operation has originated the resolution of their noble and grand mightinesses, of the date of the th of march last, to direct things on the part of their noble and grand mightinesses, in the assembly of the states general, and to make there the strongest instances, to the end that mr. adams may be admitted and acknowledged as minister of the united states of america." that the petitioners regard, with all honest-hearted citizens, the present epoch as one of the most glorious in the annals of our dear country, seeing that there has been manifested, in a most signal manner, on the one hand, a confidence the most cordial of the good citizens towards their regents, and on the other hand a paternal attention and deference of the regents to the respectful but well-founded prayers of their faithful citizens; and, in general, the most exemplary unanimity throughout the whole nation, to the confusion of those who, having endeavoured to sow the seeds of discord, would have rejoiced if they could say, with truth, that a dissention so fatal had rooted itself to the ruin of the country and of the people. that the petitioners, feeling themselves penetrated with the most pleasing emotions, by an harmony so universal, cannot pass over in silence the reflection that your noble and great lordships, taking a resolution the most favourable upon the said request, have discovered thereby, that they would not abandon the footsteps of their ancestors, who found, in the united sentiments of magistrates and citizens, the resources necessary to resist a powerful oppressor, who even would not have undertaken that difficult, but glorious task, if they had not been supported by the voice of the most respectable part of the nation. that encouraged by this reflection, the petitioners assure themselves, that your noble and great lordships will honour, with the same approbation, the step which they take to day, to recommend to your noble and great lordships, in a manner the most respectful, but at the same time the most pressing, the prompt and efficacious execution of the aforesaid resolution of their noble and grand mightinesses of the th of march last, with every thing which depends thereon; a proceeding which does not spring from a desire, on the part of the petitioners, to raise themselves above the sphere of their duties and vocations, or to interfere, indiscreetly, in the affairs of government, but only from a conviction that it cannot but be agreeable to well intentioned regents (such as your noble and great lordships have shewn yourselves by deeds to your good citizens) to see themselves applauded in their salutary efforts and patriotic designs, and supported against the perverse views, and secret machinations of the ill-disposed, who, however small their number, are always found in a nation. that although the petitioners may be convinced that their noble and grand mightinesses, having taken a resolution so agreeable to all true patriots, will not neglect to employ means to carry it to an efficacious conclusion among the other confederates, and to procure to the good citizens the real enjoyment of the commerce with united america, they cannot, nevertheless, dissemble that, lately, some new reasons have arisen, which make them conceive some fears respecting the prompt consummation of this desirable affair. that the probability of an offer of peace, on the part of great-britain, to united america, whereof the petitioners made mention in their former request, having at present become a full certainty by the revolution arrived since in the british ministry, they have not learned without uneasiness the attempt made, at the same time, by the new ministers of the court of london, to involve this state in a negociation for a separate peace, the immediate consequence of which would be (as the petitioners fear) a cessation of all connections with the american republic, whilst that in the mean time our republic, deprived on the one hand of the advantages which it reasonably promises itself from these connections, might, on the other hand, be detained by negociations, spun out to a great length, and not effect till late, perhaps after the other belligerent powers, a separate peace with england. that, in effect, the difficulties which oppose themselves to a like partial pacification are too multiplied for one to promise himself to see them suddenly removed, such as the restitution of the possessions taken from the state, and retaken from the english by france, a restitution which is become thereby impracticable, the indemnification of the immense losses that the unexpected and perfidious attack of england hath caused to the dutch nation in general, to the petitioners in particular; the assurance of a free navigation for the future, upon the principles of the armed neutrality, and conformably to the law of nations; the dissolution of the bonds which, without being productive of any utility to the two nations, have been a source of contestations, always springing up, and which, in every war between great-britain and any other power, have threatened to involve our republic in it, or have in effect done it; the annihilation, if possible, of the act of navigation, an act which carries too evident marks of the supremacy affected by england over all other maritime people, not to attract attention at the approaching negociation of peace; finally, the necessity of breaking the yoke that great-britain would impose on our flag, to make her's respected in the northern ocean, as the seat of her maritime empire; and other objects of this nature, which, as the petulant proceedings of the court of london have given rise to them, will certainly furnish matter for claims and negociations. that as, by these considerations, a speedy consummation of a separate peace with england is out of all probability, especially when one compares with them the dubious and limited manner in which it is offered; on the other hand, a general peace appears not to be so far distant, as that to obtain a more prompt reconciliation with england, the republic hath occasion to abandon its interests relative to north america, seeing that the british government hath resolved, upon the request of the national assembly, even to discontinue offensive hostilities against the new republic; and that, even under the present administration of the new ministers, it appears ready to acknowledge positively its independence; an acknowledgment which, in removing the principal stumbling block of a negociation of a general peace, will pave the way to a prompt explication of all the difficulties between the belligerent powers. that the petitioners should exceed much the bounds of their plan, if they entered into a more ample detail of the reasons which might be alleged upon this subject, and which certainly will not escape the political penetration of your noble and great lordships; among others, the engagements recently entered into with the court of france, and which will not be violated by our republic, which acknowledges the sanctity of its engagements, and respects them: but which will serve much rather to convince the empress of russia of the impossibility of entering, in the present juncture of affairs, into such a negociation as the court of london proposes, when even it will not be permitted to presume but that sovereign will feel herself the change of circumstances which have happened with regard to america since the offer of her mediation, by the revolution in the british ministry, and that she ought even to regard a separate peace between our state and england, as the most proper mean to retard the general tranquillity, that she hath endeavoured to procure to all the commercial nations now in war. that from these motives the petitioners respectfully hope that the aforesaid offer of england will occasion no obstacle which may prevent that the resolution of their noble and grand mightinesses to acknowledge the independence of north america, and to conclude with that power a treaty of commerce, may not have a prompt execution, nor that even one only of the other confederates will suffer itself to be diverted thereby from the design of opening unanimously with this province, and the others which have declared themselves conformably with holland, negociations with the united states, and of terminating them as soon as possible. that the favourable resolutions already taken for this effect in zealand, utrecht, overyssel, and at present (as the petitioners learn) in the province of groningen after the examples of holland and friesland, confirm them in that hope, and seem to render entirely superfluous, a request that, in every other case, the petitioners would have found themselves obliged to make with the commercial citizens of the other cities, to the end that, by the resistance of one province, not immediately interested in commerce and navigation, they might not be deprived of the advantages and of the protection, that the sovereign assembly of their proper provinces had been disposed to procure them, without it; but that, to the end to provide for it, their noble and grand mightinesses, and the states of the other provinces in this respect, unanimous with them, should make use of the power which belongs to each free state of our federative republic; at least in regard to treaties of commerce, of which there exists an example in , not only in a treaty of redemption of the toll of the sound, but also in a defensive treaty concluded with the crown of denmark, by the three provinces of guelderland, holland, and friesland. but as every apprehension of a similar dissension, among the members of the confederation, appears at present absolutely unseasonable, the petitioners will confine themselves rather to another request, to wit, that after the formation of connections of commerce with north america, the effectual enjoyment of it may be assured to the commercial citizens of this country, by a sufficient protection of their navigation; without which the conclusion even of such a treaty of commerce would be absolutely illusory. that, for a long time, especially the last year, the petitioners have tasted the bitter fruits of the defenceless state in which the dutch flag has been incessantly found; as they have already said, conformably to the truth, in their first request, "that by the total stagnation of the navigation, and of expeditions, they have felt, in the most painful manner, the effects of the hostile and unexpected attack of great britain, and that they feel them still every day." that, in the mean time, this stagnation of commerce, absolutely abandoned to the rapacity of an enemy greedy of pillage, and destitute of all protection whatever, hath appeared to the petitioners, as well as to all the other commercial inhabitants; yes! even to all true citizens, so much the more hard and afflicting, as they not only have constantly contributed, with a good heart, to all the public imports, but that, at the time even that the commerce was absolutely abandoned to itself, and deprived of all safeguard, it supported a double charge to obtain that protection which it hath never enjoyed; seeing that the hope of such a protection (the republic not being entirely without maritime force) hath appeared indeed more than once, but always vanished in the most unexpected manner, by accidents and impediments, which, if they have given rise, perhaps wrongfully, to discontent and to distrust among the good citizens, will not nevertheless be read and meditated by posterity without surprize. that, without intention to legitimate, in any manner, the suspicions arising from this failure of protection, the petitioners believe themselves, nevertheless, with all proper respect, warranted in addressing their complaints on this head, to the bosoms of your noble and great lordships, and (seeing that the commerce with north america cannot subsist without navigation, no more than navigation without a safeguard) in reckoning upon the active direction, the useful employment, and prompt augmentation of our naval forces, in proportion to the means which shall be the most proper effectually to secure to the commerce of this republic the fruits of its connections with united north america. for which reasons, the petitioners, returning their solemn thanks to your noble and great lordships, for the favourable resolution taken upon their request the th of march last, address themselves anew to you on this occasion, with the respectful prayer, "that it may graciously please your noble and great lordships to be willing to effectuate by your powerful influence, whether in the illustrious assembly of their noble and grand mightinesses, whether among the other confederates, or elsewhere, there, and in such manner, as your noble and great lordships shall judge most proper, that the resolution of their noble and grand mightinesses of the date of the th of march last, for the admission of mr. adams, in quality of minister of the united states of america, be promptly executed; and that the petitioners, with the other commercial citizens, obtain the effectual enjoyment of a treaty of commerce with the said republic, as well by the activity of the marine of the state, and the protection of commerce and navigation, as by all other measures, that your noble and great lordships with the other members of the sovereign government of the republic, shall judge to tend to the public good, and to serve to the prosperity of our dear country, as well as to the maintenance of its precious liberties." _so doing, &c._ rotterdam. _petition of the merchants, insurers, and freighters of rotterdam to the regency of that city_. give to understand, in the most respectful manner, that it is sufficiently notorious that the inhabitants of this republic have, as well as any other nation, an interest, that they give us an opportunity to open a free communication and correspondence with the inhabitants of america, by making a treaty of commerce, as mr. adams has represented in his memorial; to which they add, that the advantages which must result from it, are absolutely the only means of reviving the fallen commerce of this country; for re-establishing the navigation, and for repairing the great damages which the perfidious proceedings of the english have, for so many years, caused to the commercial part of this country. that with all due respect, they represent to the venerable regency the danger we run, in prolonging farther the deliberations concerning the article of an alliance of commerce with north america; being moreover certain that the interposition of this state cannot add any thing more to the solidity of its independence, and that the english ministry has even made to the deputies of the american congress propositions to what point they would establish a correspondence there, to our prejudice, and thereby deprive the inhabitants of this country of the certain advantages which might result from this reciprocal commerce; and that thus we ought not to delay one day, nor even one hour, to try all the efforts, that we may pursue the negociation offered by mr. adams, and that we may decide finally upon it. whereupon the petitioners represent, with all respect possible, but at the same time with the firmest confidence, to the venerable regency of this city, that they would authorize and qualify the lords theirs deputies at the assembly of their noble and grand mightinesses, to the end, that they insist in a manner the most energetic, at the assembly of their noble and grand mightinesses, that the resolution demanded may be taken without the least delay, to the end that, on the part of this province, it be effected, at the assembly of the states general, that the american minister, mr. adams be as soon as possible admitted to the audience which he has demanded, and that they take with him the determinations necessary to render free and open to the reciprocal inhabitants, the correspondence demanded. _so doing, &c._ _the petitions of the merchants, and manufacturers of haerlem, leiden, and amsterdam, which have been presented, on the twentieth of march, to their high mightinesses, were accompanied with another to the states of holland and west friesland, conceived in these terms._ the subscribers, inhabitants of this country, merchants, manufacturers, and others, living by commerce, give with all respect to understand, that they have the honour to annex hereto a copy of a petition presented by them to their high mightinesses, the states-general of the united low countries. the importance of the thing which it contains, the considerable commerce which these countries might establish in north america, the profits which we might draw from it, and the importance of industry and manufactures, by the relation which they have with commerce in general, as well as the navigation to that extensive country; all these objects have made them take the liberty to represent, in the most respectful manner, this great affair for them, and for the connections which the petitioners may have, in quality of manufacturers, with the merchants, most humbly praying your noble and grand mightinesses, for the acquisition of these important branches of commerce, and for the advantage of all the manufactures, and other works of labour and of traffic, to be so good as to take this petition, and the reasons which it contains, into your high consideration, and to favour it with your powerful support and protection, and by a favourable resolution, which may be taken at the assembly of their high mightinesses, to direct, on the part of this province, things in such a manner, that for obtaining this commerce so desired and so necessary for this republic, that there be concerted such efficacious measures, as the high wisdom and patriotic sentiments of your noble and grand mightinesses may find convenient, for the well-being of so great a number of inhabitants, and for the prejudice of their enemies. _so doing, &c._ dordrecht. at dordrecht there has not been presented any petition. but on the twentieth of march, the merchants, convinced by redoubled proofs of the zeal, and of the efforts of their regency, for the true interests of commerce, judged it unnecessary to present a petition after the example of the merchants of other cities. they contented themselves with testifying verbally their desire that there might be contracted connections of commerce with the united states of america: that this step had been crowned with such happy success, that the same day th of march, , it was resolved, by the ancient council, to authorize their deputies, at the assembly of holland, to concur in every manner possible, that, without delay, mr. adams be acknowledged in his quality of minister plenipotentiary; that his letters of credence be accepted; and conferences opened upon this object. zwoll in overyssel. the subscribers, all merchants, manufacturers, and factors of the city of zwoll, give respectfully to understand, that every one of them, in his private concerns, finds by experience, as well as the inhabitants of the republic in general, the grievous effects of the decay into which commerce, and the manufactures of this country are fallen, little by little, and above all, since the hostile attack of the kingdom of england against this state; that it being their duty to their country, as well as to themselves, to make use of all the circumstances which might contribute to their re-establishment, the requisition made not long since by mr. adams to the republic, to wit, to conclude a treaty of commerce with the united states of north america, could not escape their attention; an affair, the utility, advantage, and necessity of which, for these provinces, are so evident, and have been so often proved in an incontestible manner, that the petitioners will not fatigue your noble lordships, by placing them before you, nor the general interests of this city, nor the particular relations of the petitioners, considering that they are convinced, in the first place, that england making against the republic the most ruinous war, and having broken every treaty with her, all kind of complaisance for that kingdom is unseasonable. in the second place, that america, which ought to be regarded as become free at the point of the sword, and as willing, by the prohibition of all the productions and manufactures of england, to break absolutely with that kingdom; it is precisely the time, and perhaps the only time, in which we may have a favourable opportunity to enter into connection with this new and powerful republic; a time which we cannot neglect without running the greatest risque of being irrevocably prevented by the other powers, and even by england. thus we take the liberty respectfully to supplicate your noble lordships, that, having shewn, for a long time, that you set a value upon the formation of alliances with powerful states, you may have the goodness, at the approaching assembly of the nobility, and of the cities forming the states of this province, to redouble your efforts, to the end that, in the name of this country, it may be decided at the generality, that mr. adams be acknowledged, and the proposed negotiations opened as soon as possible. so doing, &c. petition of amsterdam. to their high mightinesses, the states general of the united provinces, the undersigned, merchants, manufacturers, and others, inhabitants living by commerce in this country, give respectfully to understand: that, although the petitioners have always relied, with entire confidence, upon the administration and the resolutions of your high mightinesses, and it is against their inclinations to interrupt your important deliberations, they think, however, that they ought, at this time to take the liberty; and believe as well intentioned inhabitants, that it is their indispensible duty in the present moment, which is most critical for the republic, to lay humbly before your high mightinesses their interests. what good citizen in the republic, having at heart the interest of his dear country, can dissemble, or represent to himself without dismay, the sad situation to which we are reduced by the attack, equally sudden, unjust, and perfidious of the english? who would have dared two years ago to foretell, and, notwithstanding the dark clouds which even then began to form themselves, could even have imagined that our commerce and our navigation, with the immense affairs which depend upon them, the support and the prosperity of this republic, could have fallen and remained in such a terrible decay? that in , more than two thousands of dutch vessels having passed the sound, not one was found upon the list in ? that the ocean, heretofore covered with our vessels, should see at present scarcely any? and that we may be reduced to see our navigation, formerly so much respected and preferred by all the nations, pass entirely into the hands of other powers? it would be superfluous to endeavour to explain at length the damages, the enormous losses, which our inhabitants have sustained by the sudden invasion and the pillage of the colonies, and of their ships; disasters, which not only fall directly upon the merchant, but which have also a general influence, and make themselves felt in the most melancholy manner, even by the lowest artisans and labourers, by the languor which they occasion in commerce. but, how great soever they may be, it might, perhaps, be possible, by the aid of the paternal cares of your high mightinesses, and by opposing a vigorous resistance to the enemy, already enervated, to repair in time all these losses, (without mentioning indemnifications) if this stagnation of commerce was only momentary, and if the industrious merchant did not see beforehand the sources of his future felicity dried up. it is this gloomy foresight which, in this moment, afflicts, in the highest degree, the petitioners; for, it would be the height of folly and inconsideration to desire still to flatter ourselves, and to remain quiet, in the expectation that, after the conclusion of the peace, the business, at present turned out of its direction, should return entirely into this country; for experience shews the contrary in a manner the most convincing; and it is most probable, that the same nations, who are actually in possession of it, will preserve, at that time, the greatest part of it. your alarmed petitioners throw their eyes round every where, to discover new sources, capable of procuring them more success, in future. they even flatter themselves that they have found them upon the new theatre of commerce which the united states of america offer them; a commerce, of which, in this moment, but in this moment only, they believe themselves to be in a condition to be able to assure to themselves a good share; and the great importance of which, joined to the fear of seeing escape from their hands this only and last resource, has induced them to take the resolution to lay open respectfully their observations concerning this important object to your high mightinesses, with the earnest prayer that you would consider them with a serious attention, and not interpret in ill part this measure of the petitioners, especially as their future well-being, perhaps even that of the whole republic, depends on the decision of this affair. no man can call in question that england has derived her greatest forces from her commerce with america; those immense treasures, which that commerce has poured into the coffers of the state; the uncommon prosperity of several of her commercial houses, the extreme reputation of her manufactures, the consumption of which, in quantities beyond all bounds, contributes efficaciously to their perfection, are convincing proofs of it. however it may be, and notwithstanding the supposition, too lightly adopted, that we cannot imitate the british manufactures, the manufacture of painted linens of rouen; those of wool of amiens, of germany, of overyssel; and the pins of zwoll prove visibly that all things need not be drawn from england; and that, moreover, we are as well in a condition, or shall soon be, to equal them in several respects. permit us, high and mighty lords, to the end to avoid all further digression, to request in this regard the attention of your high mightinesses to the situation of commerce in france at the beginning of the war. continual losses had almost ruined it altogether. like ours, several of her merchants failed of capitals; and others wanted courage to continue their commerce; her manufactures languished; the people groaned; in one word, every thing there marked out the horrors of war. but, at present, her maritime towns, overpeopled, have occasion to be enlarged; her manufactures, having arrived at a degree of exportation unknown before, begin to perfect themselves more and more, in such a degree, that the melancholy consequences of the war are scarcely felt in that kingdom. but, since it is incontestible that this favourable alteration results almost entirely from its commerce with america, that even this has taken place in time of war; which, moreover, is ever prejudicial, we leave it to the enlightened judgment of your high mightinesses to decide, what it is that we may expect from a commerce of this nature, even at present, but especially in time of peace. in the mean time, we have had the happiness to make a trial, of short duration it is true, but very strong in proportion to its continuance, in our colony of st. eustatia, of the importance of the commerce, though not direct, with north america. the registers of the west india company may furnish proofs of it very convincing to your high mightinesses; in fact, their productions are infinitely suitable to our market; whilst, on our side, we have to send them several articles of convenience and of necessity from our own country; or from the neighbouring states of germany. moreover, several of our languishing manufactures, scattered in the seven united provinces, may perhaps be restored to their former vigour, by means of bounties, or the diminution of imposts. the importance of manufactures for a country is sufficiently proved, by the considerable gratifications promised and paid by british policy for their encouragement, and by the advantages which that kingdom has procured to itself by this means, even beyond what had been expected. the petitioners know perfectly well the obstacles, almost insurmountable, which always oppose themselves to the habitual use of new manufactures, although certainly better in quality; and they dare advance, without hesitation, that several of our manufactures are superior to those of the english. a moment more favourable can never offer itself than the present, when, by a resolution of congress, the importation of all the effects of the produce of great britain, and of her colonies, is forbidden; which reduces the merchant and the purchaser to the necessity of recurring to other merchandises, the use of which will serve to dissipate the prejudice conceived against them. it is not only the manufactures, high and mighty lords, which promise a permanent advantage to our republic. the navigation will derive also great advantages; for it is very far from being true (as several would maintain) that the americans, being once in the tranquil possession of their independence, would themselves exercise with vigour these two branches; and that in the sequel, we shall be wholly frustrated of them. whoever has the least knowledge of the country of america, and of its vast extent, knows that the number of inhabitants is not there in proportion. that even the two banks of the mississippi, the most beautiful tract of this country, otherwise so fertile, remain still uncultivated; and as there are wanted so many hands, it is not at all probable to presume, that they will or can occupy themselves to establish new manufactures, both because of the new charges, which they would put upon the augmentation and exportation of their productions. it is then for these same reasons (the want of population) that they will scarcely find the hands necessary to take advantage of the fisheries, which are the property of their country; which will certainly oblige them to abandon to us the navigation of freight. there is not therefore any one of our provinces, much less any one of our cities, which cannot enjoy the advantage of this commerce: no, high and mighty lords, the petitioners are persuaded that the utility and the benefit of it will spread itself over all the provinces and countries of the generality. guelderland and overyssel cannot too much extend their manufactures of wool, of swanskin, and other things; even the shoemakers of the mayoralty, and of langstret, will find a considerable opening; almost all the manufactures of utrecht and of leyden will flourish anew. harlem will see revive its manufactures of stuffs, of laces of ribbons, of twist, at present in the lowest state of decay. delft will see vastly augmented the sale of its earthen ware, and gouda that of its tobacco-pipes. however great may be the advantages foreseen by the petitioners, from a legal commerce duly protected with america, their fear is not less, lest we should suffer to escape the happy moment of assuring to them, and to all the republic, these advantages. the present moment must determine the whole. the english nation is weary of the war; and as that people runs easily into extremes, the petitioners are afraid, with strong probable appearances, that a compleat acknowledgment of american independence will soon take place; above all, if the english see an opportunity of being able still to draw from america some conditions favourable for them, or at least something to our disadvantage. ah! what is it which should instigate the americans in making peace, and renewing friendship with great britain, to have any regard for the interests of our republic? if england could only obtain for a condition, that we should be obliged to pay duties more burthensome for our vessels, this would be not only a continual and permanent prejudice; but would be sufficient to transmit to posterity, a lamentable proof of our excessive deference for unbridled enemies. the petitioners dare flatter themselves that a measure so frank of this republic, may powerfully serve for the acceleration of a general peace. a general ardour to extinguish the flames of war reigns in england; an upright and vigorous conduct, on the part of this republic, will contribute to accelerate the accomplishment of the wishes for peace. we flatter ourselves, high and mighty lords, that we have in this regard alleged sufficient reasons for an immediate decision; and that we have so visibly proved the danger of delay, that we dare to hope from the paternal equity of your high mightinesses, a reasonable attention to the respectful proposition which we have made. it proceeds from no other motive than a sincere affection for the precious interests of our dear country; since we consider it as certain, that as soon as the step taken by us shall be known by the english, and that they shall have the least hope of preventing us, they will not fail, as soon as possible, to acknowledge american independence. supported by all these reasons, the petitioners address themselves to your high mightinesses, humbly requesting that it may please your high mightinesses, after the occurrences and affairs above-mentioned, to take, for the greatest advantage of this country, as soon as possible, such resolution as your high mightinesses shall judge most convenient. this doing, &c. petition to the burgomasters and regents of amsterdam: the subscribers, all merchants and manufacturers of this city, with all due respect, give to understand: that the difference arisen between the kingdom of great britain and the united states of america, has not only given occasion for a long and violent war, but that the arms of america have covered themselves with a success so happy, that the congress, assisted by the courts of france and spain, have so well established their liberty and independence, and reduced great britain to extremities so critical, that the house of commons in england, notwithstanding all the opposition of the british ministry, have lately formed the important resolution to turn the king from an offensive war against america, with no other design than to accelerate, if it is possible, a reconciliation with america. that to this happy revolution in the dispositions of the english in favour of the liberty and independence of america, according to all appearances, the resolution taken by the congress, towards the end of the last year, to wit, to forbid in all america the importation of british manufactures and productions, has greatly contributed: a resolution, of which they perceive in england, too visibly, the consequences ruinous to their manufactures, trade, commerce, and navigation, to be able to remain indifferent in this regard. for all other commercial nations, who take to heart, ever so little, their own prosperity, will apply themselves ardently, to collect from it all the fruit possible. to this effect, it would be unpardonable for the business and commerce of this republic in general, and for those of this city in particular, to suffer to escape this occasion so favourable for the encouragement of our manufactures so declined, and languishing in the interior cities, as well as that of the commerce and navigation in the maritime cities; or to suffer that other commercial nations, even with a total exclusion of the mercantile interests of this republic, should profit of it, and this, upon an occasion, when, by reason of the war, equally unjust and ruinous, in which the kingdom of great britain has involved this republic, we cannot, and ought not to have the least regard or condescension for that jealous state, being able even to oblige this arrogant neighbour, in the just fear of the consequences which a more intimate connection between this republic and north america would undoubtedly have, to lay down the sooner her arms, and restore tranquility to all europe. that the petitioners, notwithstanding the inclination they have for it, ought not nevertheless to explain themselves farther upon this object, nor make a demonstration in detail of the important advantages which this republic may procure itself by a connection and a relation more intimate with north america; both, because that no well-informed man can easily call the thing in question, or contradict it; but also, because the states of friesland themselves have very lately explained themselves, in a manner so remarkable, in this respect; and which is still more remarkable, because in very different circumstances, with a foresight, which posterity will celebrate by so much the more, as it is attacked in our time by ill designing citizens, the lords your predecessors thought, four years ago, upon the means of hindering this republic from being excluded from the business of the new world, and from falling into the disagreeable situation in which the kingdom of portugal is at present, considering that according to the informations of your petitioners, the congress has excluded that kingdom from all commerce and business with north america, solely, because it had perceived that it suffered itself to be too strongly directed by the influence of the british court. this example makes us fear with reason that if the propositions made, in the name of america, by mr. adams to this republic, should remain, as they still are, without an answer, or that, if, contrary to all expectation, they should be rejected, in that case the republic ought not to expect a better treatment. that, for these reasons and many others, the petitioners had flattered themselves that we should long ago have opened negotiations, and a closer correspondence, with the united states of america. but this important work appeared to meet with difficulties with some, as incompatible with the accession of this republic to the armed neutrality, and, in course, with the accepted mediation; whilst that others cannot be persuaded to make this so necessary step, in the opinion that we cannot draw any advantage, or at least of much importance, from a more strict connection with america: reasons, according to the petitioners, the frivolity of which is apparent to every one who is not filled with prejudice, without having occasion to employ many words to point it out. for, as to the first point, supposing, for a moment, that it might be made a question whether the republic, after her accession to the armed neutrality, before the war with england, could take a step of this nature, without renouncing at the same time the advantages of the armed neutrality which it had embraced; it is at least very certain, that every difficulty concerning the competency of the republic to take a similar step vanishes and disappears of itself at present, when it finds itself involved in a war with great britain, since from that moment she could not only demand the assistance and succour of all the confederates in the armed neutrality, but that thereby the finds herself authorized, for her own defence, to employ all sorts of means, violent and others, which she could not before adopt nor put in use, while she was really in the position of a neutral power which would profit of the advantages of the armed neutrality. this reasoning then proves evidently, that, in the present situation of affairs, the republic might acknowledge the independence of america; and, notwithstanding this, claim of full right the assistance of her neutral allies, at least, if we would not maintain one of the two following absurdities: that, notwithstanding the violent aggression of england in resentment of our accession to the armed neutrality, we dare not defend ourselves, until our confederates shall think proper to come to our assistance; or, otherwise, that being attacked by the english, it should be permitted us, conformably to the rights of the armed neutrality, to resist them in arms, whether on the doggers-bank or elsewhere, but not by contracting alliances, which certainly do no injury or harm to the convention of the armed neutrality, notwithstanding even the small hope we have of being succored by the allies of the armed confederation. the argument of the mediation is still more contrary to common sense in this, that it supposes, that the republic, by accepting the mediation, has also renounced the employment of all the means, by the way of arms, of alliances, or otherwise, which it might judge useful or necessary to annoy her enemy: a supposition, which certainly is destitute of all foundation, and which would reduce it simply to a real suspension of hostilities on the part of the republic only; to which the republic can never have consented, neither directly nor indirectly. besides this last argument, the petitioners ought to observe, in the first place, that by means of a good harmony and friendship with the united states of america, there will spring up, not only different sources of business for this republic, founded solely on commerce and navigation, but in particular the manufactures and trade will assume a new activity in the interior cities; for they may consume the amount of millions of our manufactures in that new country, of so vast extent: in the second place, abstracted from all interests of commerce, the friendship or the enmity of a nation, which, after having made prisoners of two english armies, has known how to render herself respectable and formidable, if it were only in relation to the western possessions of this state, is not and cannot be in any manner indifferent for our republic. in the last place, it is necessary that the petitioners remark farther in this respect, that several inhabitants of this republic, in the present situation of affairs, suffer very considerable losses and damages, which at least hereafter might be wholly prevented, or in part, in case we should make with the united states of america, with relation to vessels and effects recaptured, a convention similar to that which has been made with the crown of france the last year; for, venerable regents, if a convention of this nature had been contracted in the beginning of this war, the inhabitants of the republic would have already derived important advantages from it, considering that several ships and cargoes, taken by the english from the inhabitants of this state, have fallen into the hands of the americans; among others, two vessels from the west indies, richly loaded, and making sail for the ports of the republic, and both estimated at more than a million of florins of holland; which, captured by the english at the commencement of the year past, were carried into north america, where, after the capitulation of general cornwallis, they passed from the hands of the english into others. that, although the petitioners are fully convinced, that the interests of the commerce of this common country, and of this city, have constantly, but especially in these last years, attracted, and still attract every day, a great part of the cares of the venerable regency; nevertheless, having regard to the importance of the affair, the petitioners have thought that they might, and that they ought to take the liberty to address themselves with this petition to you, venerable regents, to inform you, according to truth, that the moments are precious, that we cannot lose any time, how little soever it may be, without running the greatest risque of losing all; since, by hesitating longer, the republic, according to all appearances, would not derive any advantage, not even more than it has derived from its accession to the armed neutrality; because that in the fear of british menaces, we did not determine to accede to it, until the opportunity of improving the advantage of it was passed. for these causes, the petitioners address themselves to you, venerable regents, respectfully soliciting, that your efficacious influence may condescend, at the assembly of their noble and grand mightinesses the states of this province, to direct affairs in such a manner, that upon this important object there may be taken as soon as possible, and, if possible, even during the continuance of this assembly, a final and decisive resolution, such as you, venerable regents, and their noble and grand mightinesses, according to their high wisdom, shall judge the most convenient: and if, contrary to all expectation, this important operation should meet with any obstacle on the part of one or more of the confederates, that in that case you, venerable regents, in concert with the province of friesland, and those of the other provinces who make no difficulty to open a negotiation with america, will condescend to consider the means, which shall be found proper and convenient to effectuate, that the commerce of this province, as well as that of friesland, and the other members adopting the same opinion, may not be prejudiced by any dilatory deliberations, nor too late resolved, for the conclusion of a measure as important as necessary. so doing, &c. amsterdam _address of the merchants, &c. to their regency_. noble, great, and venerable lords! it is for us a particular satisfaction to be able to offer to your noble and great lordships, as heads of the regency of this city, this well intentioned address that a multitude of our most respectable fellow-citizens have signed. it was already prepared and signed by many, when we learned, as well by the public papers as otherwise, the propositions of a particular peace, with an offer of an immediate suspension of hostilities on the part of great-britain, made to this state by the mediation of the russian ambassador. this is the only reason why no immediate mention was made of it in the address itself. it is by no means the idea, that these offers would have made any impression upon the merchants; since we can, on the contrary, in truth assure your noble and great lordships, that the unanimous sentiment nearly of the exchange of amsterdam, as much as that is interested in it, is entirely conformable to that which the merchants of rotterdam have made known in so energetic a manner: that consequently we have the greatest aversion to like offers, as artful as dangerous, which, being adopted, would very probably throw this republic into other situations very embarrassing, the immediate consequences of which would be, to ruin it totally: whereas, on the other hand, these offers shew that we have only to deal with an enemy exhausted; whom we could force to a general and durable peace in the end, by following only the example of france, spain, and north america; and by using the means which are in our hands. it is improper for us, however, to enlarge farther upon this project, important as it may be, being well assured, that your noble and great lordships see those grievous consequences more clearly than we can trace them. the merchants continue to recommend their commerce and navigation to the constant care and protection of your noble and great lordships, and to insist only, that in case these offers of the court of england should be, at any time, the cause that the affair of the admission of mr. adams, in quality of minister plenipotentiary of the united states of america, should meet with any difficulty or delay on the part of the other confederates, that your noble and great lordships, conformably to the second article of our requisition, inserted in this request, would have the goodness to think upon measures which would secure this province from the ruinous consequences of such a proceeding. _to the foregoing was joined the address presented to the burgomasters and the council, which is of the following tenor._ noble, great, venerable, and noble and venerable lords! the undersigned merchants, citizens, and inhabitants of the city of amsterdam, have learned with an inexpressible joy, the news of the resolution taken the th of march last by their noble and grand mightinesses, the lords the states of holland and west-friesland. their noble and grand mightinesses have thereby not only satisfied the general wishes of the greatest and best part of the inhabitants of this province, but they have laid the foundations of ulteriour alliances and correspondencies of friendship and of good understanding with the united states of america, which promise new life to the languishing state of our commerce, navigation, and manufactures. the unanimity with which that resolution was decided in the assembly of holland, gives us grounds to hope that the states of the other provinces will not delay to take a similar resolution; whilst the same unanimity fills with the most lively satisfaction the well intentioned inhabitants of this city, and without doubt those of the whole country, in convincing them fully that the union among the sage and venerable fathers of the country increases more and more; whilst that the promptness and activity with which it hath been concluded, make us hope, with reason, that we shall reap, in time, from a step so important and so necessary for this republic, the desired fruits. who then can call in question, or disavow that the moment seems to approach nearer and nearer, when this republic shall enter into new relations with a people, who find themselves in circumstances which differ but little from those in which our ancestors found themselves two centuries ago, with a people which conciliates more and more the general affection and esteem. the conformity of religion and government, which is found between us and america, joined to the indubitable marks that she hath already long since given of the preference that she feels for our friendship, makes the undersigned not only suppose, but inspires them with a confidence that our connections with her will be equally solid, advantageous, and salutary to the interests of the two nations. the well-being and prosperity which will very probably result from them; the part which you noble, great, venerable, and noble and venerable lords, have had in the conclusion of a resolution so remarkable; the conviction that the venerable council of this city had of it, upon the proposition of the noble, great, and venerable lords, almost consented to, before the request relative to this project presented not long since to you, noble, great, and venerable lords, had come to the knowledge of the council; finally the remembrance of that which was done upon this matter in the year , with the best intentions and the most laudable views, finding itself at present crowned with an approbation as public as it is general, indispensibly oblige the undersigned to approach you with this address; not only to congratulate you upon so remarkable an event, but to thank you at the same time with as much zeal as solemnity, for all those well intentioned cares, and those well concerted measures, for that inflexible attachment, and that faithful adherence to the true interests of the country in general, and of this city in particular, which manifest themselves in so striking a manner, in all the proceedings and resolutions of your noble, great, and venerable lordships, and of the venerable council of this city, and which certainly will attract the esteem and veneration of the latest posterity, when comparing the annals and events of the present with those of former times, it shall discover that amsterdam might still boast itself of possessing patriots who dared sacrifice generously all views of private interests, of grandeur and consideration to the sacred obligations that their country requires of them. we flatter ourselves, noble, great, venerable, noble and venerable lords, that the present public demonstration of our esteem and attachment will be so much the more agreeable, as it is more rare in our republic, and perhaps even it is without example; and as it is more proper to efface all the odious impressions that the calumny and malignity of the english ministry, not long ago so servilely adored by many, but whose downfal is at present consummated, had endeavoured to spread, particularly a little before and at the beginning of this war, insinuations, which have since found partisans in the united provinces, among those who have not been ashamed to paint the exchange of amsterdam (that is to say the most respectable and the most useful part of the citizens of this city, and at the same time the principal support of the well-being of the united provinces) as if it consisted in a great part of a contemptible herd of vile interested souls, having no other object than to give loose to their avidity, and to their desire of amassing treasures, in defrauding the public revenues, and in transporting articles, against the faith of treaties; calumniators, who have had at the same time, and have still the audacity to affront the most upright regency of the most considerable city of the republic, and to expose it to public contempt, as if it participated by connivance, and otherwise, in so shameful a commerce; insinuations and accusations which have been spread with as much falshood as wickedness, and which ought to excite so much the more the indignation of every sensible heart, when it is considered that not only the merchants of this city, but also those of the whole republic have so inviolably respected the faith of treaties that, to the astonishment of every impartial man, one cannot produce any proofs, at least no sufficient proofs; that there hath ever been transported from this country contraband merchandizes; whilst that the conjuncture in which imputations of this kind have been spread rendered the proceeding still more odious, seeing it has been done at an epoch when the commerce and navigation of amsterdam, and of the whole republic, would have experienced the first and almost the only attack of an unjust and perfidious ally, for want of necessary protection, upon which you, noble, great, venerable, and noble and venerable lords, have so often and so seriously insisted, even before the commencement of the troubles between great britain and the united states of america; at an epoch, when the merchant, formed for enterprises, was obliged to see the fruit of his labour, and of his cares, the recompence of his indefatigable industry, and the patrimony destined to his posterity, ravished from his hands by foreign violence and an unbounded rapacity; at an epoch finally, when the wise and prudent politicians, who had exhausted themselves and spared no pains for the public good, saw their patriotic views dissipated, and their projects vanish. receive then, noble, great, venerable, and noble and venerable lords, this solemn testimony of our lively gratitude, as graciously as it is given sincerely on our part. receive it as a proof of our attachment to your persons; an attachment which is not founded upon fear, nor an exteriour representation of authority and grandeur, but which is founded on more noble and immoveable principles, those of esteem and respect, arising from a sentiment of true greatness and of generosity. be assured that when contemptible discord, with its odious attendants, artifice and imposture, could effectuate nothing, absolutely nothing, at the moment when the present war broke out, to prejudice in the least the fidelity of the citizens of the amstel, or to shake them in the observance of their duties; the inconveniencies and the evils that a war naturally and necessarily draws after it will not produce the effect neither. yes, we will submit more willingly to them, according as we shall perceive that the means that god and nature have put into our hands are more and more employed to reduce and humble an haughty enemy. continue then, noble, great, venerable, noble and venerable lords, to proceed with safety in the road that you follow, the only one, which in our opinion can, under the divine benediction, tend to save the country from its present situation. let nothing divert or intimidate you from it. you have already surmounted the greatest difficulties, and the most pointed cares. a more pleasing perspective already opens. great britain, not long since so proud of her forces, that she feared not to declare war against an ancient and faithful ally, already repents of that unjust and rash proceeding; and, succumbing under the weight of a war, which becomes more and more burthensome, she sighs after peace; whilst that the harmony among the members of the supreme government of this country increases with our arms, according as your political system, whose necessity and salutary influence were heretofore less acknowledged, gains every day more numerous imitators. the resolution lately taken by the states of friesland, and so unanimously adopted by our province, furnishes, among many others, one incontestible proof of it; whilst the naval combat fought the last year on doggersbank, hath shewn to astonished europe, that so long a peace hath not made the republic forget the management of arms, but that, on the contrary, it nourishes in its bosom warriors who tread in the footsteps of the _tromps_ and _ruiters_, from whose prudence and intrepidity, after a beginning so glorious, we may promise ourselves the most heroic actions; that their invincible courage, little affected with an evident superiority, will procure, one day, to our country an honourable and permanent peace, which, in eternizing their military glory, will cause the wise policy of your noble, great, venerable, and noble and venerable lordships, to be blessed by the latest posterity. utrecht. _ th april, ._ to their noble mightinesses, the lords the states of the country of utrecht. the undersigned manufacturers, merchants, and other traders of this city give, with due respect, to understand, that the petitioners, placing their confidence in the interest that your noble mightinesses have always appeared to take in the advancement of manufactures and commerce, have not been at all scrupulous to recommend to the vigilant attention of your noble mightinessess, the favourable occasion that offers itself in this moment, to revive the manufactures, commerce, and trades fallen into decay in this city and province, in case that your noble mightinesses acknowledged, in the name of this city, mr. adams as minister plenipotentiary of the united states of america, to the end that there might be formed with them a treaty of commerce for this republic. as the petitioners founded themselves thus upon the intimate sentiment of the execution of that which your noble mightinesses judge proper to the advancement of the well-being of the petitioners and of their interests, the petitioners have further the satisfaction of seeing the most agreeable proofs of it, when your noble mightinesses, in your last assembly, resolved unanimously to consent, not only to the admission of mr. adams in quality of minister of the congress of north america, but to authorise the lords the deputies of this province at the generality, to conform themselves in the name of this province, to the resolutions of the lords the states of holland and west friesland, and of friesland; and, doing this, to consent to the acknowledgment and admission of mr. adams, as minister of the united states of america. as that resolution furnishes the proofs the best intentioned, the most patriotic, for the advancement of that which may serve to the well-being and to the encouragement of manufactures, of commerce, and of decayed trades, as well in general, as of this city and province in particular, and which had been so ardently desired; the petitioners think themselves indispensibly obliged to testify, in the most respectful manner, their gratitude for it to your noble mightinesses. the petitioners find themselves absolutely unable to express, in words, the general satisfaction that this event hath caused; not only to them; but also to the great and small of this province; joined to the confirmation of the perfect conviction in which they repose themselves, also, for the future, upon the paternal care of your noble mightinesses, that the consummation of the desired treaty of commerce with the americans may be soon effected. the petitioners attest by the present, before your noble mightinesses, their solemn and well-meant gratitude, which they address at the same time to your noble mightinesses, as the most sincere mark of veneration and respect for the persons, and the direction of public affairs, of your noble mightinesses; praying that almighty god may deign to bless the efforts and the councils of your noble mightinesses, as well as those of the confederates; that moreover this province, and our dear country, by the propositions of an armistice, and that which depends thereon, should not be involved in any negotiations for a particular peace with our perfidious enemy, but that we obtain no other peace than a general peace, which (as your noble mightinesses express yourselves in your resolution) may be compatible with their honour and dignity; and serve not only for this generation, but also for the latest posterity, as a monument of glory, of eternal gratitude to, and esteem for the persons and public administration of the present time. friesland. _extract from the register-book of the lords the states of friesland_. the requisition of mr. adams, for presenting his letters of credence from the united states of america to their high mightinesses, having been brought into the assembly, and put into deliberation, as also the ulteriour address to the same purpose, with a demand of a categorical answer, made by him, as is more amply mentioned in the minutes of their high mightinesses of the th of may, , and the th of january, ; whereupon it having been taken into consideration that the said mr. adams would probably have some propositions to make to their high mightinesses, and to present to them the principle articles and foundations upon which the congress, on their part, would enter into a treaty of commerce and friendship, or other affairs to propose, in regard to which dispatch would be requisite. it has been thought fit and resolved to authorize the lords the deputies of this province at the generality, and to instruct them to direct things, at the table of their high mightinesses, in such a manner that the said mr. adams be admitted forthwith as minister of the congress of north america; with further order to the said deputies that if there should be made moreover any similar propositions by the same, to inform immediately their noble mightinesses of them. and an extract of the present resolution shall be sent them for their information, that they may conduct themselves conformably. thus resolved at the province house the th february, . compared with the aforesaid book to my knowledge. _signed_ a. j. v. sminia. holland and westfriesland. _extract of the resolutions of the lords the states of holland and westfriesland, taken in the assembly of their noble and grand mightinesses, thursday th march, _. deliberated by resumption upon the address and the ulteriour address of mr. adams, made the th of may, , and the th of january, , to the president of the states general, communicated to the assembly the th may, , and the d of last month, to present his letters of credence, in the name of the united states of america, to their high mightinesses; by which ulteriour address, the said mr. adams hath demanded a categorical answer, that he may acquaint his constituents thereof: deliberated also upon the petitions of a great number of merchants, manufacturers and other inhabitants of this province, interested in commerce to support their request presented to the states general, the twentieth current, to the end, that efficacious measures might be taken to establish a commerce between this country and north america, copy of which petitions have been given to the members, the twenty-first; it hath been thought fit and resolved that the affair shall be directed on the part of their noble and grand mightinesses, at the assembly of the states general, and that there shall be made the strongest instances that mr. adams be admitted and acknowledged, as soon as possible, by their high mightinesses, in quality of ambassador of the united states of america. and the counsellor pensionary hath been charged to inform under hand the said mr. adams of this resolution of their noble and grand mightinesses. zealand. _extract of the resolutions of their high mightinesses the states general of the united provinces. monday th april, _. the deputies of the province of zealand have brought to the assembly, and have caused to be read there, the resolution of the states of the said province, their principals, to cause to be admitted, as soon as possible, mr. adams in quality of ambassador of the congress of north america, according to the following resolution. _extract from the register of the resolutions of the lords the states of zealand, th of april, _. it hath been thought fit and ordered, that the lords, the ordinary deputies of this province at the generality, shall be authorised, as it is done by the present, to assist, in the direction of affairs at the assembly of their high mightinesses, in such a manner, that mr. adams may be acknowledged, as soon as possible, as ambassador of the congress of north america; that his letters of credence be accepted; and that he be admitted in that quality, according to the ordinary form; enjoining further upon the said lords the ordinary deputies, to take such propositions, as should be made to this republic by the said mr. adams, for the information and deliberation of their high mightinesses, to the end to transmit them here as soon as possible. and an extract of this resolution of their noble mightinesses shall be sent to the lords, their ordinary deputies, to serve them as an instruction. _signed_ j. m. chalmers. upon which having deliberated, it hath been thought fit and resolved to pray, by the present, the lords the deputies of the province of guelderland, utrecht, and groningen and ommelanden, who have not yet explained themselves upon the subject, to be pleased to do it as soon as possible. overyssel. _extract from the register of the resolutions of the equestrian order, and of the cities composing the states of overyssel. zwoll, th april, ._ mr. the grand bailiff of saalland, and the other commissioners of their noble mightinesses for the affairs of finance, having examined, conformably to their commissorial resolution of the third of this month, the addresses of mr. adams, communicated to the assembly the th of may, , and the d of february, , to present his letters of credence to their high mightinesses, in the name of the united states of america; as well as the resolution of the lords the states of holland and westfriesland, dated the th of march, , carried the th of the same month to the assembly of their high mightinesses, for the admission and acknowledgment of mr. adams, have reported to the assembly, that they should be of opinion, that the lords the deputies of this province in the states general ought to be authorised and charged to declare in the assembly of their high mightinesses, that the equestrian order and the cities judge that it is proper to acknowledge, as soon as possible, mr. adams in quality of minister of the united states of north america to their high mightinesses. upon which, having deliberated, the equestrian order and the cities have conformed themselves to the said report. compared with the aforesaid register. _signed_ derk dunbar. groningen. _extract from the register of the resolutions of their noble mightinesses, the states of groningen and ommelanden. tuesday th april, ._ the lords the states of groningen and ommelanden, having heard the report of the lords the commissioners for the petitions of the council of state and the finances of the province, and having carefully examined the demand of mr. adams, to present his letters of credence from the united states of america to their high mightinesses, have, after deliberation upon the subject, declared themselves of opinion, that in the critical circumstances in which the republic finds itself at present, it is proper to take, without loss of time, such efficacious measures, as may not only repair the losses and damages that the kingdom of great britain hath caused in a manner so unjust, and against every shadow of right, to the commerce of the republic, as well before as after the war, but particularly such as may establish the free navigation and the commerce of the republic, for the future, upon on the most solid foundations, as may confirm and re-assure it, by the strongest bonds of reciprocal interest; and that, in consequence, the lords the deputies at the assembly of their high mightinesses ought to be authorised, on the part of the province, as they are by the present, to admit mr. adams to present his letters of credence from the united states of america, and to receive the propositions which he shall make, to make report of them to the lords the states of this province. _signed_ e. lewe, secretary. the states general, having deliberated the same day upon the resolution, have resolved, that the deputies of this province of guelderland, which has not yet declared itself upon the same subject, should be requested, to be pleased to do it as soon as possible. utrecht. _extract of the resolutions of their noble mightinesses, the states of the province of utrecht, april _. heard the report of mr. de westerveld and other deputies of their noble mightinesses for the department of war, who, in virtue of the commissorial resolutions of the th of may , th january and th march of the present year , have examined the resolutions of their high mightinesses of the th of may , containing an overture, that mr. the president of the assembly of their high mightinesses had made, "that a person styling himself j. adams had been with him, and had given him to understand, that he had received letters of credence for their high mightinesses from the united states of america, with a request, that he would be pleased to communicate them to their high mightinesses; as well as the resolution of their high mightinesses of the th of january, containing an ulteriour overture of mr. the president, that the said mr. adams had been with him, and had insisted upon a categorical answer, whether his said letters of credence would be accepted or not; finally the resolution of their high mightinesses of the th of march last, with the insertion of the resolution of friesland, containing a proposition to admit mr. adams in quality of minister of the congress of north america." upon which having deliberated, and remarked that the lords the states of holland and west friesland, by their resolution carried the th of march to the states general, have also consented to the admission of the said mr. adams in quality of minister of the congress of north america, it hath been thought fit and resolved, that the lords the deputies of this province in the states general should be authorised, as their noble mightinesses authorise them by the present, to conform themselves, in the name of this province, to the resolution of the lords the states of holland and westfriesland, and of friesland, and to consent by consequence, that mr. adams be acknowledged and admitted as minister of the united states of america; their noble mightinesses being, in the mean time, of opinion, that it would be necessary to acquaint her majesty the empress of russia, and the other neutral powers, with the resolution to be taken by their high mightinesses upon this subject, in communicating to them, as much as shall be necessary, the reasons which have induced their high mightinesses to it, and giving them the strongest assurances that the intention of their high mightinesses is by no means to prolong thereby the war, which they would have willingly prevented and terminated long since; but on the contrary, that their high mightinesses with nothing with more ardor, than a prompt re-establishment of peace; and that they shall be always ready, on their part, to co-operate in it, in all possible ways, and with a suitable readiness, so far as that shall be any way compatible with their honour and their dignity, and for this end an extract of this shall be carried by missive to the lords the deputies at the generality. guelderland. _extract from the recès of the ordinary diet, holden in the city of nimeguen, in the month of april . wednesday, april ._ the requisition of mr. adams, to present his letters of credence to their high mightinesses in the name of the united states of america, having been brought to the assembly and read, as well as an ulteriour address made upon this subject, with a demand of a categorical answer by the said mr. adams, more amply mentioned in the registers of their high mightinesses of the date of the th of may , and of the th of january ; moreover the resolutions of the lords the states of the five other provinces, carried successively to the assembly of their high mightinesses, and all tending to admit mr. adams in quality of ambassador of the united states of america to this republic; upon which their noble mightinesses, after deliberation, have resolved to authorise the deputies of this province at the states general, as they authorise them by the present, to conform themselves in the name of this province to the resolution of the lords the states of holland and westfriesland, and to consent, by consequence, that mr. adams may be acknowledged and admitted in quality of ambassador of the united states of america to this republic. in consequence, an extract of the present shall be sent to the said deputies, to make as soon as possible the requisite overture of it to the assembly of their high mightinesses. in fidem extracti. _signed_ j. in de betouw. the states general. _extract from the register of the resolutions of their high mightinesses the states general of the united provinces. friday april, ._ deliberated by resumption, upon the address and the ulteriour address, made by mr. adams the th of may , and the th of january of the current year to mr. the president of the assembly of their high mightinesses, to present to their high mightinesses his letters of credence in the name of the united states of north america; and by which ulteriour address the said mr. adams hath demanded a categorical answer, to the end to be able to acquaint his constituents thereof; it hath been thought fit and resolved that mr. adams shall be admitted and acknowledged in quality of ambassador of the united states of north america to their high mightinesses, as he is admitted and acknowledged by the present. _signed_ w. boreel, _president_. _lower down_ compared with the aforesaid register. _signed_ h. fagel. _extract from the register of the resolutions of their high mightinesses the states general of the united provinces, monday, d april, _. mr. boreel, who presided in the assembly the last week, hath reported to their high mightinesses, and notified to them, that mr. john adams, ambassador of the united states of america, had been with him last saturday, and presented to him a letter from the assembly of congress, written at philadelphia, the first of january, , containing a credence, for the said mr. adams, to the end to reside in quality of its minister plenipotentiary near their high mightinesses: upon which having deliberated, it hath been thought fit and resolved, to declare by the present: "that the said mr. adams is agreeable to their high mightinesses; that he shall be acknowledged in quality of minister plenipotentiary; and that there shall be granted to him an audience, or assigned commissioners, when he shall demand it." information of the above shall be given to the said mr. adams, by the agent van der burch de spieringshoek. _signed_ w. van citters, _president_. _lower down_ compared with the aforesaid register. _signed_ h. fagel. medal. to the noble and mighty lords, the states of friesland, the society of citizens, established at leeuwarden, under the motto, "by liberty and zeal," most humbly represents, that it desires to have an opportunity of testifying publicly, by facts, to your noble mightinesses, the most lively, but, at the same time, the most respectful sentiments of gratitude, which not only animate them, but also, as they assure themselves, all the well intentioned citizens, especially, with relation to the resolutions equally important, and full of wisdom; which your noble mightinesses have taken upon all the points, in regard to which the critical circumstances, in which our dear country finds itself plunged, have furnished to your noble mightinesses, objects equally numerous and disagreeable, particularly, at the ordinary diet of the year , and at the extraordinary diet holden in the month of april last; resolutions which bear not only the characters of wisdom, but also those of the best intentioned solicitude, and the purest love of our country; and which prove, in the most convincing manner, that your noble mightinesses have no greater ambition than its universal prosperity; assiduously proposing to yourselves, as the most important object of your attention, of your enterprises, and of your attachment, the rule, _salus populi suprema lex esto_; resolutions, in fine, which ought perfectly to re-assure the good citizens of this province, and encourage them to persevere in that full and tranquil confidence which has hindered them from representing to your noble mightinesses the true interests of the country, and to exhort them, at the same time, by their supplications, to act with courage, and to fulfil their duties; considering that the said resolutions have fully assured them, that their possessions, with that which is above all things dear to them, their liberty (that right which is more precious to them than their lives; to which the smallest injury cannot be done, without doing wrong and dishonour to humanity; a right, nevertheless, which, if we consider the world in general, has been, alas! almost every where equally violated) are deposited in safety, under the vigilant eye of your noble mightinesses. the society has thought that it might accomplish its wishes, in the most convenient and decent manner, in causing to be stricken, at its expence, a medal of silver, which may remain to posterity a durable monument of the perfect harmony which at the present dangerous epoch has reigned between the government and the people. it has conceived, for this purpose, a sketch or project, as yet incomplete, according to which one of the sides of the medal should bear the arms of friesland, held by an hand, which descends from the clouds, with an inscription in the following terms: _to the states of friesland, in grateful memory of the diets of february and of april, , dedicated by the society_ liberty and zeal. an inscription, which would thus contain a general applause of all the resolutions taken in these two diets; whilst upon the reverse, one should distinguish, more particularly, the two events which interest the most our common country, in regard of which your noble mightinesses have given the example to the states of the other provinces, and which merit, for this reason, as placed in the foremost situation, to shew itself the most clearly to the fight: to wit, "the admission of mr. adams in quality of minister of the united states of america to this republic; and the refusal of a separate peace with great britain." events which should be represented symbolically by a frisian, dressed according to the ancient characteristic custom of the frisians, holding out his right-hand to an inhabitant of north america, in token of friendship and brotherly love; whilst with the left-hand he rejects the peace which england offers him. the whole with such convenient additions, and symbolical ornaments, which the society, perhaps, would do well to leave to the invention of the medalist, &c. [_the remainder of this request relates to other subjects._] done at leeuwarden the th may, . the society "by liberty and zeal." _signed at its request_ w. wopkens, _in the absence of the secretary_. an essay on canon and feudal law. by john adams, ambassador plenipotentiary from the united and independent states of north america, to their high mightiness the states general of the united provinces of holland. an essay on canon and feudal law. "ignorance and inconsideration, are the two great causes of the ruin of mankind."--this is an observation of dr. _tillotson_, with relation to the interest of his fellow-men, in a future and immortal state: but it is of equal truth and importance, if applied to the happiness of men in society, on this side the grave.--in the earliest ages of the world, _absolute monarchy_ seems to have been the universal form of government.--kings, and a few of their great counsellors and captains, exercised a cruel tyranny over the people who held a rank in the scale of intelligence, in those days, but little higher than the camels and elephants, that carried them and their engines to war. by what causes it was brought to pass, that the people in the middle ages, became more _intelligent_ in general, would not perhaps be possible in these days to discover: but the fact is certain, and wherever a general knowledge and sensibility have prevailed among the people, arbitrary government and every kind of oppression have lessened and disappeared in proportion.--man has certainly an exalted soul! and the same principle in human nature; that aspiring noble principle, founded in benevolence and cherished by knowledge; i mean the love of power, which has been so often the cause of _slavery_, has, whenever freedom has existed, been the cause of freedom. if it is this principle, that has always prompted the princes and nobles of the earth, by every species of fraud and violence, to shake off all the limitations of their power; it is the same that has always stimulated the common people to aspire at independency, and to endeavour at confining the power of the great, within the limits of equity and reason. the poor people, it is true, have been much less successful than the great--they have seldom found either leisure or opportunity to form an union and exert their strength--ignorant as they were of arts and letters, they have seldom been able to frame and support a regular opposition. this, however, has been known, by the great, to be the temper of mankind, and they have accordingly laboured, in all ages, to wrest from the populace, as they are contemptuously called, the knowledge of their rights and wrongs, and the power to assert the former or redress the latter. i say rights, for such they have, undoubtedly, antecedent to all earthly government--_rights_, that cannot be repealed or restrained by human laws--_rights_, derived from the great legislator of the universe. since the promulgation of christianity, the two greatest systems of tyranny, that have sprung from this original, are the _cannon_ and the _feudal_ law--the desire of dominion, that great principle by which we have attempted to account for so much good, and so much evil, is, when properly restrained, a very useful and noble movement in the human mind: but when such restraints are taken off, it becomes an encroaching, grasping, restless and ungovernable power. numberless have been the systems of iniquity, contrived by the great, for the gratification of this passion in themselves: but in none of them were they ever more successful, than in the invention and establishment of the _canon_ and the _feudal_ law. by the former of these, the most refined, sublime, extensive, and astonishing constitution of policy, that ever was conceived by the mind of man, was framed by the romish clergy for the aggrandisement of their own order. all the epithets i have here given to the romish policy are just; and will be allowed to be so, when it is considered, that they even persuaded mankind to believe, faithfully and undoubtingly, that god almighty had intrusted them with the keys of heaven, whose gates they might open and close at pleasure--with a power of dispensation over all the rules and obligations of morality--with authority to license all sorts of sins and crimes--with a power of deposing princes, and absolving subjects from allegiance--with a power of procuring or withholding the rain of heaven, and the beams of the sun--with the management of earthquakes, pestilence and famine.----nay, with the mysterious, awful, incomprehensible power of creating out of bread and wine, the flesh and blood of god himself.--all these opinions they were enabled to spread and rivet among the people, by reducing their minds to a state of sordid ignorance and staring timidity; and by infusing into them a _religious_ horror of letters and knowledge. thus was human nature chained fast for ages, in a cruel, shameful, and deplorable servitude, to him and his subordinate tyrants; who, it was foretold, would exalt himself above all that was called god, and that was worshipped.---- in the latter we find another system similar in many respects to the former; which, although it was originally formed perhaps for the necessary defence of a barbarous people, against the inroads and invasions of her neighbouring nations; yet, for the same purposes of tyranny, cruelty and lust, which had dictated the _canon_ law, it was soon adopted by almost all the princes of europe, and wrought into the constitutions of their government.--it was originally a code of laws, for a vast army in a perpetual encampment.--the general was invested with the sovereign propriety of all the lands within the territory.--of him, his servants and vassals, the first rank of his great officers held the lands; and in the same manner, the other subordinate officers held of them; and all ranks and degrees, held their lands, by a variety of duties and services, all tending to bind the chains the faster, on every order of mankind. in this manner, the common people were holden together, in herds and clans, in a state of servile dependance on their lords; bound, even by the tenure of their lands to follow them, whenever they commanded, to their wars; and in a state of total ignorance of every thing divine and human, excepting the use of arms, and the culture of their lands. but, another event still more calamitous to human liberty, was a wicked confederacy, between the two systems of tyranny above described.--it seems to have been even stipulated between them, that the temporal grandees should contribute every thing in their power to maintain the ascendency of the priesthood; and that the spiritual grandees, in, their turn, should employ that ascendency over the consciences of the people, in impressing on their minds, a blind, implicit obedience to civil magistracy.-- thus, as long as this confederacy lasted, and the people were held in ignorance; liberty, and with her, knowledge, and virtue too, seem to have deserted the earth; and one age of darkness succeeded another, till god, in his benign providence, raised up the champions, who began and conducted the reformation.--from the time of the reformation, to the first settlement of america, knowledge gradually spread in europe, but especially in england; and in proportion as that increased and spread among the people, ecclesiastical and civil tyranny, which i use as synonymous expressions, for the _canon_ and _feudal_ laws, seem to have lost their strength and weight. the people grew more and more sensible of the wrong that was done them, by these systems; more and more impatient under it; and determined at all hazards to rid themselves of it; till, at last, under the execrable race of the stuarts, the struggle between the people and the confederacy aforesaid of temporal and spiritual tyranny, became formidable, violent and bloody.---- it was this great struggle that peopled america.--it was not religion alone, as is commonly supposed; but it was a love of _universal_ liberty, and an hatred, a dread, an horror of the infernal confederacy before described, that projected, conducted, and accomplished the settlement of america.---- it was a resolution formed by a sensible people, i mean the _puritans_ almost in despair. they had become intelligent in general, and many of them learned.--for this fact i have the testimony of archbishop _king_ himself, who observed of that people, that they were more intelligent, and better read than even the members of the church whom he censures warmly for that reason.--this people had been so vexed, and tortured by the powers of those days, for no other crime than their knowledge, and their freedom of enquiry and examination; and they had so much reason to despair of deliverance from those miseries on that side the ocean, that they at last resolved to fly to the _wilderness_ for refuge, from the temporal and spiritual principalities and powers, and plagues, and scourges of their native country. after their arrival here, they began their settlement, and formed their plan both of ecclesiastical and civil government, in direst opposition to the _canon_ and the _feudal_ systems.----the leading men among them, both of the clergy and the laity were men of sense and learning: to many of them, the historians, orators, poets and philosophers of greece and rome were quite familiar: and some of them have left libraries that are still in being, consisting chiefly of volumes, in which the wisdom of the most enlightened ages and nations is deposited, written however in languages, which their great grandsons, _though educated in european universities_, can scarcely read. thus accomplished were many of the first planters of these colonies.--it may be thought polite and fashionable, by many modern fine gentlemen, perhaps, to deride the characters of these persons as enthusiastical, superstitious and republican: but such ridicule is founded in nothing but foppery and affectation, and is grosly injurious and false.----religious to some degree of enthusiasm, it may be admitted they were; but this can be no peculiar derogation from their character, because it was at that time almost the universal character, not only of england but of christendom. had this however been otherwise, their enthusiasm, considering the principles in which it was founded, and the ends to which it was directed, far from being a reproach to them, was greatly to their honour: for i believe it will be found universally true, that no great enterprize, for the honour or happiness of mankind, was ever atchieved without a large mixture of that noble infirmity. whatever imperfections may be justly ascribed to them, which however are as few as any mortals have discovered, their judgment in framing their policy was founded in wise, humane and benevolent principles. it was founded in revelation and in reason too: it was consistent with the principles of the best, and greatest, and wisest legeslators of antiquity.----tyranny in every form, shape and appearance, was their disdain and abhorrence; no fear of punishment, nor even of death itself, in exquisite tortures, had been sufficient to conquer that steady, manly, pertinacious spirit, with which they had opposed the tyrants of those days, in church and state. they were very far from being enemies to monarchy; and they knew as well as any men, the just regard and honour that is due to the character of a dispenser of the mysteries of the gospel of grace: but they saw clearly, that popular powers must be placed as a guard, a controul, a balance, to the powers of the monarch and the priest in every government; or else it would soon become the man of sin, the whore of babylon, the mystery of iniquity, a great and detestable system of fraud, violence and usurpation. their greatest concern seems to have been to establish a government of the church more consistent with the scriptures, and a government of the state more agreeable to the dignity of human nature, than any they had seen in europe: and to transmit such a government down to their posterity, with the means of securing and preserving it for ever. to render the popular power in their new government as great and wise as their principles of theory, i. e. as human nature and the christian religion require it should be, they endeavoured to remove from it as many of the feudal inequalities and dependencies as could be spared, consistently with the preservation of a mild limited monarchy. and in this they discovered the depth of their wisdom, and the warmth of their friendship to human nature.--but the first place is due to religion.----they saw clearly, that of all the nonsense and delusion which had ever passed through the mind of man, none had ever been more extravagant than the notions of absolutions, indelible characters, uninterrupted successions, and the rest of those fantastical ideas, derived from the canon law, which had thrown such a glare of mystery, sanctity, reverence and right, reverend eminence, and holiness around the idea of a priest, as no mortal could deserve and as always must, from the constitution of human nature, be dangerous in society. for this reason, they demolished the whole system of diocesan episcopacy, and deriding, as all reasonable and impartial men must do, the ridiculous fancies of sanctified effluvia from episcopal fingers, they established sacerdotal ordination on the foundation of the bible and common sense.----this conduct at once imposed an obligation on the whole body of the clergy, to industry, virtue, piety and learning; and rendered that whole body infinitely more independent on the civil powers, in all respects, than they could be where they were formed into a scale of subordination, from a pope down to priests and friars and confessors, necessarily and essentially, a sordid, stupid, and wretched herd; or than they could be in any other country, where an archbishop held the place of an universal bishop, and the vicars and curates that of the ignorant, dependent, miserable rabble aforesaid; and infinitely more sensible and learned than they could be in either.----this subject has been seen in the same light by many illustrious patriots, who have lived in america, since the days of our forefathers, and who have adored their memory for the same reason.----and methinks there has not appeared in new england, a stronger veneration for their memory, a more penetrating insight into the grounds and principles and spirit of their policy, nor a more earnest desire of perpetuating the blessings of it to posterity, than that fine institution of the late chief justice dudley, of a lecture against popery, and on the validity of presbyterian ordination. this was certainly intended by that wise and excellent man, as an eternal memento of the wisdom and goodness of the very principles that settled america. but i must again return to the feudal law.----the adventurers so often mentioned, had an utter contempt of all that dark ribaldry of hereditary indefeasible right,--the lord's anointed,--and the divine miraculous original of government, with which the priesthood had inveloped the feudal monarch in clouds and mysteries, and from whence they had deduced the most mischievous of all doctrines, that of passive obedience and non-resistance. they knew that government was a plain, simple, intelligible thing, founded in nature and reason, and quite comprehensible by common sense.----they detested all the base services, and servile dependencies of the feudal system.----they knew that no such unworthy dependencies took place in the ancient seats of liberty, the republic of greece and rome: and they thought all such slavish subordinations were equally inconsistent with the constitution of human nature, and that religious liberty with which jesus had made them free. this was certainly the opinion they had formed, and they were far from being singular or extravagant in thinking so.----many celebrated modern writers in europe have espoused the same sentiments.--lord kaims, a scottish writer of great reputation, whose authority in this case ought to have the more weight, as his countrymen have not the most worthy ideas of liberty, speaking of the feudal law, says, "a constitution so contradictory to all the principles which govern mankind, can never be brought about, one should imagine, but by foreign conquest or native usurpations." brit. ant. p. .--rousseau speaking of the same system, calls it, "that most iniquitous and absurd form of government, by which human nature was so shamefully degraded." social compact, page .----it would be easy to multiply authorities; but it must be needless, because as the original of this form of government was among savages, as the spirit of it is military and despotic, every writer, who would allow the people to have any right to life or property or freedom, more than the beasts of the field, and who was not hired or inlisted under arbitrary lawless power, has been always willing to admit the feudal system to be inconsistent with liberty and the rights of mankind. to have holden their lands allodially, or for every man to have been the sovereign lord and proprietor of the ground he occupied, would have constituted a government, too nearly like a commonwealth.--they were contented, therefore, to hold their lands of their king, as their sovereign lord, and to him they were willing to render homage: but to no mesne and subordinate lords, nor were they willing to submit to any of the baser services.--in all this they were so strenuous, that they have even transmitted to their posterity, a very general contempt and detestation of holdings by quit rents: as they have also an hereditary ardour for liberty, and thirst for knowledge.-- they were convinced by their knowledge of human nature derived from history and their own experience, that nothing could preserve their posterity from the encroachments of the two systems of tyranny, in opposition to which, as has been observed already, they erected their government in church and state, but knowledge diffused generally through the whole body of the people.--their civil and religious principles, therefore, conspired to prompt them to use every measure, and take every precaution in their power to propagate and perpetuate knowledge. for this purpose they laid very early the foundations of colleges, and invested them with ample privileges and emoluments; and it is remarkable, that they have left among their posterity, so universal an affection and veneration for those seminaries, and for liberal education, that the meanest of the people contribute chearfully to the support and maintenance of them every year, and that nothing is more generally popular than productions for the honour, reputation, and advantage of those seats of learning. but the wisdom and benevolence of our fathers rested not here. they made an early provision by law, that every town, consisting of so many families, should be always furnished with a grammar school.--they made it a crime for such a town to be destitute of a grammar school-master for a few months, and subjected it to an heavy penalty.--so that the education of all ranks of people was made the care and expence of the public in a manner, that i believe has been unknown to any other people ancient or modern. the consequences of these establishments we see and feel every day.--a native of america who cannot read and write, is as rare an appearance as a jacobite, or a roman catholic, i. e. as rare as a comet or an earthquake.--it has been observed, that we are all of us lawyers, divines, politicians, and philosophers.--and i have good authorities to say, that all candid foreigners who have passed through this country, and conversed freely with all sorts of people here, will allow, that they have never seen so much knowledge and civility among the common people in any part or the world.--it is true there has been among us a party for some years, consisting chiefly, not of the descendants of the first settlers of this country, but of high churchmen and high statesmen, imported since, who affect to censure this provision for the education of our youth as a needless expence, and an imposition upon the rich in favour of the poor;--and as an institution productive of idleness and vain speculation among the people, whose time and attention, it is said, ought to be devoted to labour, and not to public affairs, or to examination into the conduct of their superiors. and certain officers of the crown, and certain other missionaries of ignorance, foppery, servility, and slavery, have been most inclined to countenance and encrease the same party.--be it remembered, however, that liberty must at all hazards be supported. _we have a right to it, derived from our_ maker! but if we had not, our fathers have earned and bought it for us at the expence of their ease, their estates, their pleasure, and their blood.--and liberty cannot be preserved without a general knowledge among the people, who have a right, from the frame of their nature, to knowledge, as their great creator, who does nothing in vain, has given them understandings and a desire to know; but besides this they have a right, an indisputable, unalienable, indefeasible, divine right, to that most dreaded and envied kind of knowledge, i mean of the characters and conduct of their rulers. _rulers are no more than attornies, agents, and trustees for the people_: and if the cause, the interest, and trust are insidiously betrayed, or wantonly trifled away, the people have a right to revoke the authority that they themselves have deputed, and to constitute abler and better agents, attornies, and trustees. and the preservation of the means of knowledge, among the lowest rank, is of more importance to the public, than all the property of all the rich men in the country. it is even of more consequence to the rich themselves, and to their posterity.--the only question is, whether it is a public emolument? and if it is, the rich ought undoubtedly to contribute in the same proportion as to all other public burdens, i. e. in proportion to their wealth, which is secured by public expences.--but none of the means of information are more sacred, or have been cherished with more tenderness and care by the settlers of america, than the press. care has been taken that the art of printing should be encouraged, and that it should be easy and cheap, and safe for any person to communicate his thoughts to the public.--and you, messieurs printers, whatever the tyrants of the earth may say of your paper, have done important service to your country, by your readiness and freedom in publishing the speculations of the curious. the stale, impudent insinuations of slander and sedition, with which the gormandizers of power have endeavoured to discredit your paper, are so much the more to your honour; for the jaws of power are always opened to devour, and her arm is always stretched out, if possible to destroy, the freedom of thinking, speaking, and writing.--and if the public interest, liberty and happiness have been in danger, from the ambition or avarice of any great man, or number of great men, whatever may be their politeness, address, learning, ingenuity, and in other respects integrity and humanity, you have done yourselves honour, and your country service, by publishing and pointing out that avarice and ambition.--these views are so much the more dangerous and pernicious, for the virtues with which they may be accompanied in the same character, and with so much the more watchful jealousy to be guarded against. "curse on such virtues, they've undone their country." _be not intimidated, therefore, by any terrors, from publishing, with the utmost freedom whatever can be warranted by the laws of your country; nor suffer yourselves to be wheedled out of your liberty by any pretences of politeness, delicacy, or decency._ these, as they are often used, are but three different names for hypocrisy, chicanery, and cowardice. much less, i presume, will you be discouraged by any pretences, that malignants on this side the water[a] will represent your paper as facetious and seditious, or that the great on the other side the water will take offence at them. this dread of representation has had for a long time in this province effects very similar to what the physicians call an _hydrophobia_, or dread of water.--it has made us delirious--and we have rushed headlong into the water, till we are almost drowned, out of simple or phrensical fear of it. believe me, the character of this country has suffered more in britain, by the pusillanimity with which we have borne many insults and indignities from the creatures of power at home, and the creatures of those creatures here, than it ever did, or ever will by the freedom and spirit that has been or will be discovered in writing or action. believe me, my countrymen, they have imbibed an opinion on the other side the water, that we are an ignorant, a timid, and a stupid people; nay, their tools on this side have often the impudence to dispute your bravery.--but i hope in god the time is near at hand, when they will be fully convinced of your understanding, integrity, and courage. but can any thing be more ridiculous, were it not too provoking to be laughed at, than to pretend that offence should be taken at home for writings here?--pray let them look at home. is not the human understanding exhausted there? are not reason, imaginations, wit, passion, senses and all, tortured to find out satire and invective against the characters of the vile and futile fellows who sometimes get into place and power?--the most exceptionable paper that ever i saw here is perfect prudence and modesty, in comparison of multitudes of their applauded writings. yet the high regard they have for the freedom of the press, indulges all.--i must and will repeat it, newspapers deserve the patronage of every friend to his country. and whether the defamers of them are arrayed in robes of scarlet or sable, whether they lurk and skulk in an insurance office, whether they assume the venerable character of a priest, the sly one of a scrivener, or the dirty, infamous, abandoned one of an informer, they are all the creatures and tools of the lust of domination.---- [footnote a: boston in america.] the true source of our sufferings, has been our timidity. we have been afraid to think.--we have felt a reluctance to examining into the grounds of our privileges, and the extent in which we have an indisputable right to demand them, against all the power and authority on earth.--and many who have not scrupled to examine for themselves, have yet, for certain prudent reasons, been cautious, and diffident of declaring the result of their enquiries. the cause of this timidity is perhaps hereditary, and to be traced back in history, as far as the cruel treatment the first settlers of this country received, before their embarkation for america, from the government at home.--every body knows how dangerous it was, to speak or write in favour of any thing, in those days, but the triumphant system of religion and politicks. and our fathers were, particularly, the objects of the persecutions and proscriptions of the times.--it is not unlikely therefore, that, although they were inflexibly steady in refusing their positive assent to any thing against their principles, they might have contracted habits of reserve, and a cautious diffidence of asserting their opinions publicly.--these habits they probably brought with them to america, and have transmitted down to us.--or, we may possibly account for this appearance, by the great affection and veneration, americans have always entertained for the country from whence they sprang--or by the quiet temper for which they have been remarkable, no country having been less disposed to discontent than this--or by a sense they have that it is their duty to acquiesce under the administration of government, even when in many smaller matters grievous to them, and until the essentials of the great compact are destroyed or invaded. these peculiar causes might operate upon them; but without these, we all know, that human nature itself, from indolence, modesty, humanity or fear, has always too much reluctance to a manly assertion of its rights. hence perhaps it has happened, that nine-tenths of the species, are groaning and gasping in misery and servitude. but whatever the cause has been, the fact is certain, we have been excessively cautious of giving offence by complaining of grievances.----and it is as certain, that american governors, and their friends, and all the crown officers, have availed themselves of this disposition in the people.--they have prevailed on us to consent to many things, which were grossly injurious to us, and to surrender many others with voluntary tameness, to which we had the clearest right. have we not been treated formerly, with abominable insolence, by officers of the navy?----i mean no insinuation against any gentleman now on this station, having heard no complaint of any one of them to his dishonour.--have not some generals, from england, treated us like servants, nay, more like slaves than like britons?--have we not been under the most ignominious contribution, the most abject submission, the most supercilious insults of some custom-house officers? have we not been trifled with, browbeaten, and trampled on, by former governors, in a manner which no king of england since james the second has dared to indulge towards his subjects? have we not raised up one family, placed in them an unlimited confidence, and been soothed, and flattered, and intimidated by their influence, into a great part of this infamous tameness and submission?----"these are serious and alarming questions, and deserve a dispassionate consideration."-- this disposition has been the great wheel and the main spring in the american machine of court politics.--we have been told, that "the word _rights_ is an offensive expression." that "the king, his ministry, and parliament, will not endure to hear americans talk of their _rights_." that "britain is the mother and we the children, that a filial duty and submission is due from us to her," and that "we ought to doubt our own judgment, and presume that she is right, even when she seems to us to shake the foundations of government." that "britain is immensely rich, and great, and powerful, has fleets and armies at her command, which have been the dread and terror of the universe, and that the will force her own judgment into execution, right or wrong." but let me intreat you, sir, to pause--do you consider yourself as a missionary of loyalty or of rebellion? are you not representing your k--, his ministry and parliament, as tyrants, imperious, unrelenting tyrants, by such reasoning as this?--is not this representing your most gracious sovereign, as endeavouring to destroy the foundations of his own throne?--are you not representing every member of parliament as renouncing the transactions at _runyn mead_; [the meadow, near windsor, where _magna charta_ was signed,] and as repealing in effect the bill of rights, when the lords and commons asserted and vindicated the rights of the people and their own rights, and insisted on the king's assent to that assertion and vindication? do you not represent them, as forgetting that the prince of orange was created king william by the people, on purpose that their rights might be eternal and inviolable?--is there not something extremely fallacious, in the common place images of mother country and children colonies? are we the children of great britain, any more than the cities of london, exeter and bath? are we not brethren and fellow-subjects, with those in britain, only under a somewhat different method of legislation, and a totally different method of taxation? but admitting we are children, have not children a right to complain when their parents are attempting to break their limbs, to administer poison, or to sell them to enemies for slaves? let me intreat you to consider, will the mother be pleased, when you represent her as deaf to the cries of her children? when you compare her to the infamous miscreant, who lately stood on the gallows for starving her child? when you resemble her to lady macbeth in shakespear, (i cannot think of it without horror) who "had given suck, and knew "how tender 'twas to love the babe that milk'd her." but yet, who could "even while 'twas smiling in her face, "have pluck'd her nipple from the boneless gums, "and dash'd the brains out." let us banish for ever from our minds, my countrymen, all such unworthy ideas of the k--g, his ministry, and parliament. let us not suppose, that all are become luxurious, effeminate and unreasonable, on the other side the water, as many designing persons would insinuate. let us presume, what is in fact true, that the spirit of liberty is as ardent as ever among the body of the nation, though a few individuals may be corrupted.--let us take it for granted, that the same great spirit, which once gave cæsar so warm a reception; which denounced hostilities against john, 'till magna charta was signed; which severed the head of charles the first from his body, and drove james the second from his kingdom; the same great spirit (may heaven preserve it till the earth shall be no more!) which first seated the great grandfather of his present most gracious majesty on the throne of britain, is still alive and active, and warm in england; and that the same spirit in america, instead of provoking the inhabitants of that country, will endear us to them for ever, and secure their good-will. this spirit, however, without knowledge, would be little better than a brutal rage.----let us tenderly and kindly cherish therefore the means of knowledge. let us dare to read, think, speak and write.----let every order and degree among the people rouse their attention and animate their resolution.--let them all become attentive to the grounds and principles of government, ecclesiastical and civil.--let us study the law of nature; search into the spirit of the british constitution; read the histories of ancient ages; contemplate the great examples of greece and rome; set before us the conduct of our own british ancestors, who have defended, for _us_, the inherent rights of mankind against foreign and domestic tyrants and usurpers, against arbitrary kings and cruel priests, in short against the gates of earth and hell.--let us read and recollect, and impress upon our souls the views and ends of our own more immediate forefathers, in exchanging their native country for a dreary, inhospitable wilderness. let us examine into the nature of that power, and the cruelty of that oppression which drove them from their homes. recollect their amazing fortitude, their bitter sufferings! the hunger, the nakedness, the cold, which they patiently endured! the severe labours of clearing their grounds, building their houses, raising their provisions, amidst dangers from wild beasts and savage men, before they had time or money, or materials for commerce! recollect the civil and religious principles, and hopes, and expectations, which constantly supported and carried them through all hardships, with patience and resignation! let us recollect it was liberty! the hope of liberty for themselves and us and ours, which conquered all discouragements, dangers and trials!----in such researches as these, let us all in our several departments chearfully engage! but especially the proper patrons and supporters of law, learning and religion. let the pulpit resound with the doctrines and sentiments of religious liberty.----let us hear the danger of thraldom to our consciences, from ignorance, extream poverty and dependance, in short from civil and political slavery.--let us see delineated before us, the true map of man. let us hear the dignity of his nature, and the noble rank he holds among the works of god! that consenting to slavery is a sacrilegious breach of trust, as offensive in the sight of god, as it is derogatory from our own honour, or interest or happiness; and that god almighty has promulgated from heaven, liberty, peace, and good-will to man!---- let the bar proclaim, "the laws, the rights, the generous plan of power," delivered down from remote antiquity; inform the world of the mighty struggles, and numberless sacrifices, made by our ancestors, in the defence of freedom.--let it be known, that british liberties are not the grants of princes or parliaments, but original rights, conditions of original contracts, co-equal with prerogative, and co-eval with government.--that many of our rights are inherent and essential, agreed on as maxims and established as preliminaries, even before a parliament existed.--let them search for the foundation of british laws and government in the frame of human nature, in the constitution of the intellectual and moral world.--there let us see, that truth, liberty, justice, and benevolence, are its everlasting basis; and if these could be removed, the superstructure is overthrown of course.-- let the colleges join their harmony, in the same delightful concert.--let every declamation turn upon the beauty of liberty and virtue, and the deformity, turpitude and malignity of slavery and vice.--let the public disputations become researches into the grounds and nature and ends of government, and the means of preserving the good and demolishing the evil.--let the dialogues and all the exercises become the instruments of impressing on the tender mind, and of spreading and distributing, far and wide, the ideas of right and the sensations of freedom. in a word, let every sluice of knowledge be opened and set a flowing. the encroachments upon liberty, in the reigns of the first james and the first charles, by turning the general attention of learned men to government, are said to have produced the greatest number of consummate statesmen, which has ever been seen in any age, or nation. the brooke's, hamden's, falkland's, vane's, milton's, nedham's, harrington's, neville's, sydney's, locke's, are all said to have owed their eminence in political knowledge, to the tyrannies of those reigns. the prospect, now before us, in america, ought, in the same manner, to engage the attention of every man of learning to matters of power and of right, that we may be neither led nor driven blindfolded to irretrievable destruction.----_nothing less than this seems to have been meditated for us, by somebody or other in great britain._ there seems to be a direct and formal design on foot, to enslave all america.--this however must be done by degrees.----the first step that is intended seems to be an entire subversion of the whole system of our fathers, by the introduction of the canon and feudal law, into america.----the canon and feudal systems though greatly mutilated in england, are not yet destroyed. like the temples and palaces, in which the great contrivers of them were once worshiped and inhabited, they exist in ruins; and much of the domineering spirit of them still remains.--the designs and labours of a certain society, to introduce the former of them into america, have been well exposed to the public by a writer of great abilities; and the further attempts to the same purpose that may be made by that society, or by the ministry or parliament, i leave to the conjectures of the thoughtful.--but it seems very manifest from the stamp act itself, that a design is formed to strip us in a great measure of the means of knowledge, by loading the press, the colleges, and even an almanack and a news-paper, with restraints and duties; and to introduce the inequalities and dependencies of the feudal system, by taking from the poorer sort of people all their little subsistence, and conferring it on a set of stamp officers, distributors and their deputies.--but i must proceed no farther at present.--the sequel, whenever i shall find health and leisure to pursue it, will be a "disquisition of the policy of the stamp act."----in the mean time, however, let me add, these are not the vapours of a melancholy mind, nor the effusions of envy, disappointed ambition, nor of a spirit of opposition to government: but the emanations of an heart that burns for its country's welfare. no one of any feeling, born and educated in this once happy country, can consider the numerous distresses, the gross indignities, the barbarous ignorance, the haughty usurpations, that we have reason to fear are meditating for ourselves, our children, our neighbours, in short for all our countrymen, and all their posterity, without the utmost agonies of heart, and many tears. finis. transcriber's notes: th century english typography has been modernized for ease of reading, for example, long-s has been rendered using an ordinary s. spelling conventions of the times have been maintained. several misprints and punctuation errors corrected. page , added close quotes to end of quotation. page , "achievements" spelled "atchievements" left as is. page , added close quotes to end of quotation. page , "necessay" changed to "necessary". page , "extrardinary" changed to "extraordinary". page , "achieved" spelled "atchieved" left as is. ligatures removed in ascii version: man[oe]oeuvres to manoeuvres, [oe]conomy to oeconomy. california - or the rambling sketches and experiences of sixty-four years' residence in that state by l. h. woolley member of the society of california pioneers and of the vigilance committee of california - trip across the plains. the year has a peculiarly thrilling sensation to the california pioneer, not realized by those who came at a later date. my purpose in recording some of my recollections of early days is not for publication nor aggrandizement, but that it may be deposited in the archives of my descendants, that i was one of those adventurers who left the green mountains of vermont to cross the plains to california, the el dorado--the land of gold. in starting out i went to boston, new york, philadelphia, cincinnati, st. louis and independence, missouri. here i joined the first mule train of turner, allen & co.'s pioneer line. it consisted of forty wagons, one hundred and fifty mules, and about one hundred and fifty passengers. we left the frontier on the fourteenth of may , and here is where our hardships commenced. many of us had never known what it was to "camp out" and do our own cooking. some of the mules were wild and unbroken, sometimes inside the traces, sometimes outside; sometimes down, sometimes up; sometimes one end forward and sometimes the other; but after a week or two they got sobered down so as to do very well. our first campfire at night was on the little blue river, a few miles from independence; it was after dark when we came to a halt, and it was my friend gross' turn to cook, while the rest brought him wood and water and made a fire for him by the side of a large stump. i knew he was a fractious man, so i climbed into one of the wagons where i could see how he got along. the first thing that attracted my attention was the coffee pot upside down, next away went the bacon out of the pan into the fire. by this time he was getting warm inside as well as outside, and i could hear some small "cuss words"; next he looked into the dutch oven, and saw that his dough had turned to charcoal. i got down into the wagon out of sight, and peeked through a crack; he grew furious, danced around the fire, and the air was full of big words. finally we got a little coffee and some cakes and bacon, then i undertook to do a little sleeping but it was no go. thus ended my first night on the plains. in the morning we started on our journey to travel over a level untimbered, uninhabited country for nearly four hundred miles, without anything of especial interest occurring save cholera, from which there was terrible suffering. we lost about seventy-five of our number before we reached fort laramie, seven hundred miles from missouri. there was a dutchman in my mess by the name of lamalfa, who understood but little of english. we had dubbed him "macaroni" for having brought a lot of the stuff with him and on our second night out it came his turn to stand guard. he was detailed to the inner guard and instructed as to his duties. on the relief of the outer sentinel and his return to camp, lamalfa issued the challenge which was to repeat three times "who comes there?" and in case of no response to fire, and as the outer sentinel came upon him he called out "who comes there three times" and fired; fortunately he was a poor shot and no harm was done. it seems that "macaroni" was not aware of there being an outer guard. when near fort childs, four hundred miles out, all the passengers left the wagons, except the drivers, and walked on in advance, leaving the wagons light (they were canvas covered). there came up one of those terrible hailstorms, common in that country, which pelted the mules with such severity as to cause them to take fright and run away, breaking loose from the wagons which were taken by the storm in another direction, first wheels up, then top, until the latter was all in rags; then they stopped. when we came into camp at night they looked sorry enough and you would have thought they had just come out of a fierce fight. we pursued our journey along the south bank of the platte until we reached fort laramie, capturing some antelopes and occasionally a buffalo. up to this time we had had a great deal of sickness in camp. i remember one poor fellow (his name i have forgotten), we called him chihuahua bob; he was a jovial, good natured fellow and drove one of the eight-mule baggage wagons. i enquired about him one morning and was told that he had died during the night of cholera, and had been left in his shallow grave. we met some returning emigrants that morning who had become discouraged and were going back to their old homes this made me think of home and friends, the domestic happy fireside, and all that i had left behind, "but," said i to myself, "this won't do, i am too far out now; pluck is the word and i'm not going back on it." early next morning we were once more upon our long journey, slowly traveling towards the far, far west. the first place of interest that presented itself to our view was a narrow passage for the river between two perpendicular rocky banks, which were about one hundred feet high and looked as though a man could jump from one to the other at the top. this was called the "devil's gate." above and below was the broad prairie. at intervals along the platte were villages of prairie dogs, who were about the size of large grey squirrels, but more chunky' of a brownish hue, with a head somewhat resembling a bulldog. they are sometimes eaten by the indians and mountaineers. their earth houses are all about two feet deep; are made in the form of a cone; are entered by a hole in the top, which descends vertically some two or more feet and then takes an oblique course, and connects with others in every direction. these towns or villages sometimes cover several hundred acres and it is very dangerous riding over them on horseback. we will now pass to another interesting object called "chimney rock" which is not altogether unlike bunker hill monument. it stands by itself on the surrounding level country, with a conical base of about one hundred and fifty feet in diameter and seventy-five feet high where the nearly square part of the column commences, which is about fifty feet on each of the four sides. it is of sandstone and certainly a very singular natural formation. altogether it is about two hundred feet high. i will mention here that the banks of the platte are low, that the bed is of quicksand, that the river is very shallow and that it is never clear. one of our company attempted to ford it on foot. when about two-thirds over, in water up to his waist, he halted, being in doubt as to whether he should proceed or return. while hesitating between two opinions his feet had worked down into the quicksand and became so imbedded that he could not extricate them. realizing his perilous position he at once gave the masonic grand hailing sign of distress and in a moment there were several men in the water on their way to his relief. they reached him in time and brought him safely into camp. about this time there was considerable dissatisfaction manifested in camp on account of the slow progress we were making. some left the train and went on by themselves, others realized the necessity of holding to together to the last in order to protect themselves as well as to care for those among us who were sick. the peculiar characteristics of the party at this time seemed to be recklessness and indifference to the situation, but the better judgment finally prevailed and we went on in harmony. the next three hundred miles were devoid of any especial interest. this brings us to the summit of the rocky mountains (at south pass) which divides the rivers of the atlantic and pacific oceans, and ends their course thousands of miles apart. here are the ever snow-capped peaks of the wind river mountains looming up on the north. they are conical in form and their base is about one thousand feet above the plain that extends south. this brings us to the nineteenth day of july, . on the night of this day water froze to the thickness of one-fourth of an inch in our buckets. the following day we commenced descending the western slope, which was very rapid and rough. the twenty-first brought us to green river which was swollen and appeared to be a great barrier. here, for the first time, we brought our pontoons into use and swam the mules, so that after two days of hard work we were all safely landed on the west bank. we are now at the base of the rocky mountains on the west, passing from one small valley to another, until we reached a bend in the bear river. here let us pause for a moment and study the wonders of nature. first, the ground all around is covered with sulphur; here, a spring of cold soda water; there, a spring of hot soda water; fourth, an oblong hole about four by six inches in the rocky bank, from which spouts hot soda water, like the spouting of a whale. it is called "steamboat spring." it recedes and spouts about once in two minutes. all of these are within a hundred steps of each other. now, our canteens, and every available vessel is to be filled with water, for use in crossing forty-five miles of lava bed, where there is neither water nor grass to be found and must be accomplished by traveling day and night. this was called "subletts' cutoff," leaving salt lake to the south of us, and brings us to the base of the mountains at the source of the humboldt river. on the west side, in crossing over, we encountered a place in a gorge of the mountain called "slippery ford," now called the "devil's half-acre." it was a smooth inclined surface of the rock and it was impossible for the mules to keep their footing. we had great difficulty in getting over it. now we are at the headwaters of the humboldt river, along which we traveled for three hundred miles, over an alkali and sandy soil until we came to a place where it disappeared. this was called the "sink of the humboldt." this valley is twenty miles wide by about three hundred long. during this part of our journey there was nothing of interest to note. the water of this river is strongly impregnated with alkali. about forty miles in a southerly direction from the sink of the humboldt (now called the lake) is old "ragtown" on the banks of the carson river, not far from fort churchill. in traveling from one river to the other there was no water for man or beast. when we were about half way we found a well that was as salt as the ocean. we reached this well sometime in the night of the first day and our mules were completely fagged out, so we left the wagons, turned the mules loose, and drove them through to the carson, arriving there on the night of the second day. here was good grass and fine water, and bathing was appreciated to its fullest extent. we remained for several days to let our animals recruit, as well as ourselves, then we went back and got the wagons. we traveled westward through carson valley until we entered the six mile canon, the roughest piece of road that we found between missouri and california. there were great boulders from the size of a barrel to that of a stage coach, promiscuously piled in the bed of this tributary to the carson, and over which we were obliged to haul our wagons. it took us two days to make the six miles. arrival in california. now we see silver lake, at the base of the sierra nevadas on the east side; our advance to the summit was not as difficult as we anticipated. having arrived at this point we are at the source of the south fork of the american river and at the summit of the sierra nevadas. we now commenced the descent on a tributary of this river. after a day or two of travel we arrived at a place called weaverville, on the tenth day of september, . this place consisted of one log cabin with numerous tents on either side. here was my first mining, but being weary and worn out, i was unable to wield the pick and shovel, and so i left in a few days for sacramento where i undertook to make a little money by painting, but it was a failure, both as to workmanship and as to financial gain. however, by this time i had gained some strength and left for beal's bar at the junction of the north and south forks of the american river. here i mined through the winter with some success. in the spring of thirty of us formed a company for the purpose of turning the south fork through a canal into the north fork, thereby draining about a thousand yards of the river bed. just as we had completed the dam and turned the water into the canal, the river rose and away went our dam and our summer's work with it. winter coming on now nothing could be done until spring, so i left for san francisco where i had heard of the death of a friend at burns' old diggings on the merced river, about seventy-five miles from stockton, and knowing that his life was insured in favor of his wife i went there and secured the necessary proof of his death so that his widow got the insurance. there was considerable hardship in this little trip of about one week. on my return, and when within about thirty miles of stockton, i camped for the night at knight's ferry, picketed my pony out, obtained the privilege of spreading my blankets on the ground in a tent and was soon in a sound sleep, out of which i was awakened at about two o'clock in the morning by feeling things considerably damp around me (for it had been raining). i put out my hand and found i was lying in about three inches of water. i was not long getting out of it, rolled up my blankets, saddled my pony and left for stockton. here i arrived at about nine o'clock, sold the pony, and was ready to leave at four o'clock for san francisco. while waiting here (stockton) i became acquainted with a kentucky hunter who told me the story of his experiences of the day previous. he said: "i came to the place where you stayed last night, yesterday morning, and was told that there were a number of bears in the neighborhood, and that no one dared to hunt them. i remarked that that was my business, and i would take a hand at it; i strapped on my revolvers and knife, shouldered my kentucky rifle and started out. i had not gone more than half a mile, when i discovered one of the animals i was in search of, and away my bullet sped striking him in the hip. i made for a tree and he made for me! i won the race by stopping on the topmost branch, while he howled at the base; while reloading my rifle i heard an answer to his wailing for me or for his companion--it didn't matter which. very soon a second cry came from another direction, and still one more from the third point of the compass. by this time one had reached the tree and i fired killing him. hastily reloading, i was just in time to fire as the second one responded to the first one's howl; he fell dead; then the third arrived and shared the same fate. having allowed the first one to live as a decoy, his turn came last; then i descended and looked over my work--four full-grown bears lay dead at my feet." to corroborate this statement i will say that i saw one of them on the hooks in front of a butcher shop in stockton, and the other three went to san francisco on the same boat that i did. i met the hunter on the street about a week later and he told me that he realized seven hundred dollars for his bears. i do not make the statement as a bear story, but as a bare fact. life in the mines. the preceding pages were written about twenty years ago, and only covered about one and one-half years after leaving the green mountains of old vermont. since which time, i have experienced nearly all of the vicissitudes of the state to the present time ( ). i will now attempt to give an account of my stewardship from that time on. i date my arrival in the state, weaverville, about three miles below hangtown (now placerville), september th, . this was where i did my first mining, which was not, much of a success, on account of my weak condition caused by my having the so-called "land scurvy," brought on from a want of vegetable food, and i left for sacramento city where i remained for a week or two and then left and went to grass valley. there i made a little money, and went to sacramento city and bought two wagon loads of goods, went back to grass valley and started a hotel, ran it a few weeks, and the first thing i knew i was "busted." it is now in the winter of ' and ' and i went to sacramento again, and from sacramento to beal's bar on the north fork of the american river at the junction of the north and south forks. by this time i had gained my strength so that i was more like myself, and i bought a rocker, pick, shovel and pan and went into the gulches for gold. i had fairly good luck until spring. by this time i had laid by a few hundred dollars, and i joined a company of thirty to turn the south fork of the american river into the north fork, by so doing we expected to drain about one-fourth of a mile of the bed of the south fork. the banks of the river were rich and everything went to show that the bed of the river was very rich, and we went to work with great hopes of a big harvest of gold. the first thing we did was to build a dam, and dig a canal, which we accomplished in about four months. about this time snow and rain came on in the mountains, raised the water in the river and washed away part of our dam. it was now too late to build again that season. now you see the hopes and disappointments of the miner. while we were at work on the canal we had occasion to blast some boulders that were in our way. we had a blacksmith to sharpen the picks and drills who had a portable forge on the point of land between the two rivers. when we were ready to blast the rock we gave him timely warning, he paid no heed, the blast went off, and a portion of a boulder weighing about pounds went directly for his forge and within about six inches of his legs and went on over into the north fork. the man turned about and hollered to the boys in the canal "i surrender." about this time the river had risen to such an extent that it was thought advisable to suspend operations until the next spring. this was a dividing of the roads, and each member had to look out for himself. i went to mokelumne hill, staked out some claims and went to work to sink a shaft through the lava to bedrock. the lava on the surface is very hard, but grows softer as you go down. while i was thus banging away with my pick and not making much headway, there came along a mr. ferguson from san francisco, on a mule. he stopped and looked at me a minute and then said, "young man, how deep do you expect to go before you reach bedrock?" i said, "about or feet." "well," said he, "by ---- you have got more pluck than any man i ever saw." he went on and so did i, and i have not seen him since. it took me about two weeks to get so that i could not throw the dirt to the surface, then i had to make a windlass, get a tub and rope, and hire a man to help me at eight dollars a day, and cents a point for sharpening picks. these things completed and in operation, i was able to make two or three feet per day, and we finally reached the bedrock at a depth of feet. the last two feet in the bottom of the shaft i saved for washing, and had to haul it about one mile to water. i washed it out and realized / ounces of very coarse gold. now we were on the bedrock and the next thing to do was to start three drifts in as many directions. this called for two more men to work the drifts, and a man with his team to haul the dirt to the water, while i stood at the windless and watched both ends. this went on for one week. when i washed out my dirt, paid off my help and other expenses, i had two dollars and a half for myself. about this time i was feeling a little blue and i gave directions for each man in the drifts to start drifts to the left at the end of each drift. this was done, and we went on for another week as before, and this time i came out about one hundred dollars ahead. about this time a couple of miners came along and offered me thirteen hundred dollars for my claim, and i sold it, took the dust and went to sacramento and sent it to my father in vermont. that paid up for all the money that i had borrowed, and made things quite easy at home. now, i am mining again with cradle, pick, shovel and pan in gulches, on the flats, in the river and on the banks, with miner's luck, up and down, most of the time down. however, "pluck" was always the watchword with me. i floated some of the time in water, some of the time in the air, some of the time on dry land, it did not make much difference with me at that time where i was. i was at home wherever night overtook me. but finally i got tired of that and began to look about and think of home and "the girl i left behind me." home again. married. return to california. in the spring of ' i left san francisco on the steamer "independence" via the "nicaragua route" for new york, arrived there in course of a month, and took train for boston, where i found my father from vermont with a carload of horses. this was clover for me. we remained there a week or ten days, then left for home. the "girl i left behind" was a vermont lady but was visiting a sister in cincinnati, ohio. in the spring of i went on to ohio to see the "girl i left behind me," and married the "girl i had left behind me." we then went to vermont, where we remained until the year of . in the summer of this year i had the second attack of the "california fever." i called in dr. hichman and he diagnosed my case, and pronounced it fatal, and said there was no medicine known to science that would help me, that i must go, so i took the "girl i left behind me" and started for san francisco. vigilance committee of . on my return to san francisco it did not take me long to discover that the city was wide open to all sorts of crime from murder, to petty theft. in a very short time i became interested in the pacific iron works, and paid very little attention to what else was going on around me until the spring of ' . here was a poise of the scales, corruption and murder on one side, with honesty and good government on the other. which shall be the balance of power, the first or the last? on may th, , james king, editor of the "evening bulletin," was shot by jas. p. casey on the corner of washington and montgomery streets. he lingered along for a few days and died. this was too much for the people and proved the entering wedge for a second vigilance committee. during the first hours after the shooting there were , names enrolled on the committee's books. of that number, i am proud to say, i was the th member, and the membership increased until it amounted to over , . shooting of gen. richardson. i will first relate a crime that had happened the november previous (november , ), in which charles cora had shot and killed general william h. richardson, united states marshal for the northern district of california. these men had a quarrel on the evening of november th, , between and o'clock, which resulted in the death of general richardson by being shot dead on the spot in front of fox & o'connor's store on clay street, between montgomery and leidesdorff streets, by cora. shortly after this cora was arrested and placed in custody of the city marshal. there was talk of lynching, but no resort was had to violence. mr. samuel brannan delivered an exciting speech, and resolutions were declared to have the law enforced in this trial. general richardson was a brave and honorable man, and beloved by all. he was about years of age, a native of washington, d. c., and married. cora was confined in the county jail. we will now leave this case in the mind of the reader and take it up later on. shooting of james king, of william. on may th, , the city was thrown into a great excitement by an attempt to assassinate james king, of william, editor of the "evening bulletin," by james p. casey, editor of the "sunday times." both casey and king indulged in editorials of a nature that caused much personal enmity, and in one of the issues of the "bulletin" king reproduced articles from the new york papers showing casey up as having once been sentenced to sing sing. casey took offense at the articles, and about o'clock in the afternoon, at the corner of montgomery and washington streets, intercepted king who was on his way home, drew a revolver, saying, "draw and defend yourself," and shot him through the left breast near the armpit. mr. king exclaimed, "i am shot," and reeling, was caught up and carried to the pacific express office on the corner casey was quickly locked up in the station house[ ]. immediately following the shooting large crowds filled the streets in the neighborhood anxious to hang to the nearest lamp post the perpetrator of the crime. casey was immediately removed to the county jail for safer keeping. here crowds again congregated, demanding the turning over to them of casey and threatening violence if denied. mayor van ness and others addressed them in efforts to let the law take its course but the crowd which had been swelled into a seething mass, remonstrated, citing the shooting of marshal richardson, and demanding cora, his assassin, that he, too, might be hanged. military aid was called to the defense of the jail and its prisoners and after a while the multitude dispersed, leaving all quiet. casey and cora turned over to vigilance committee. sunday, may th, a deputation of the committee was delegated to call at the door of the jail and request the sheriff to deliver up the prisoner, casey. upon arriving at the door three raps were made. sheriff scannell appeared. the delegation desired him to handcuff the prisoner and deliver him at the door. without hesitation, the sheriff repaired to the cell of casey and informed him of the request of the vigilantes. the sheriff, after going through some preliminaries, brought the prisoner to the front door of the jail and delivered him into the hands of the committee. my company was stationed directly across the street lined up on the sidewalk. immediately in front of us was a small brass cannon, which a detachment had shortly before secured from the store of macondray & co. it was the field piece of the first california guard. it was loaded, and alongside was the lighted match, and all was in readiness should any resistance be offered. other companies were stationed so as to command the entire surroundings. we marched from the general headquarters of the committee at sacramento street (fort gunnybags), one block from the water front, up that street to montgomery, thence to pacific and along kearny to the jail, which was situated on the north side of broadway, between kearny and dupont streets. other companies came via stockton and dupont streets[ ]. casey was then ironed and escorted to a coach in waiting and, at his request, mr. north took a seat beside him; wm. t. coleman and miers f. truett also riding in the same conveyance. another conference was held with the sheriff, requesting the prisoner, charles cora, who had murdered general richardson, to be turned over to the committee. scannell declined and asked time to consider. the committee gave the sheriff one hour in which to decide. in less than half that time the sheriff appeared at the door of the jail and turned cora over to the committee. the committee reached the rooms on sacramento street about o'clock. casey was placed under guard in a room above headquarters. cora was also removed to the committee's rooms in the same manner as casey, the committee having to go back to the jail for the second time. about three hundred men remained on guard at the committee rooms after their removal there. fort gunnybags. our headquarters and committee rooms were at the wholesale liquor house of truett & jones, no. sacramento street, about a block from the water front, and embraced the block bounded by sacramento, california, front and davis streets, and covered by brick buildings two stories high. the name "fort gunnybags" was ascribed to it on account of the gunnybags filled with sand which we piled up in a wall some six feet through and about ten feet high. this barricade was about twenty feet from the building. guards were stationed at the passageways through it as well as at the stairs and committee by the members of the monumental fire engine company no. , stationed on the west side of brenham place, opposite the "plaza." our small field pieces and arms were kept on the ground floor, and the cells, executive chamber and other departments were on the second floor. may th found mr. king still suffering from his wound, but no great alarm was felt as to his condition. death of james king, of william. may th mr. king's condition took a turn for the worse, and at o'clock he was sinking rapidly, being weakened from the probing and dressing of the wound. he passed away. sorrow and grief were shown by all. he left a widow and six children. he was born in georgetown, d. c., and was only years old. trial of casey and cora. casey and cora were held for trial may th, having been supplied with attorneys and given every opportunity to plead their cases. the committee sat all night and took no recess until the next morning when the trials were ended. the verdict of "guilty of murder" was found in each case and they were ordered to be executed friday, may rd, at o'clock noon. while the trial was going on mr. king passed away[ ]. hanging of casey and cora. the committee, for fear that an attempt might be made to rescue casey and cora, arranged their companies, which numbered three thousand men and two field pieces, cleared the streets in the immediate vicinity and had had constructed a platform from out of the two front windows. these platforms were hinged, the outer ends being held up by cords which were fastened to a projecting beam of the roof, to which a rope had been adjusted for the purpose of hanging. arabella ryan or belle cora was united in marriage to charles cora just before the execution. about one o'clock both casey and cora, who had their arms tied behind them, were brought to the platform and with firm steps stepped out upon them. casey addressed a few remarks, declaring that he was no murderer, and weakened at the thought of his dear old mother. he almost fainted as the noose was placed around his neck. cora, to the contrary, said nothing, and stood unmoved while casey was talking, and apparently unconcerned. the signal was given at twenty minutes past one o'clock and the cord cut, letting the bodies drop six feet. they hung for fifty-five minutes and were cut down and turned over to the coroner. we, the rank and file of the vigilance committee, were immediately afterwards drawn up in a line on sacramento street, reviewed and dismissed after stacking our arms in the committee room, taking up our pursuits again as private citizens[ ]. yankee sullivan. james (or yankee) sullivan, whose real name was francis murray, had been taken by the vigilance committee and was then (may th, ), in confinement in the rooms of the committee. he was very pugilistic and had taken an active part in ballot-box frauds in the several elections just previous. he had been promised leniency by the committee and assured a safe exit from the country, but he was fearful of being murdered by the others to be exiled at the same time. he experienced a horrible dream, going through the formality and execution of hanging. he called for a glass of water, which was given him by the guard, who at the same time endeavored to cheer him up, and when breakfast was taken him at o'clock that morning he was found dead in his bed, he having made an incision with a common table knife in his left arm near the elbow, cutting to the bone and severing two large arteries[ ]. "law and order" party. on the nd of june, , governor j. neely johnson having declared the city of san francisco to be in a state of insurrection, issued orders to wm. t. sherman to enroll as militia, companies of men of the highest standard and to have them report to him, sherman, for duty. the response was light and the order looked upon as a joke and little or no stock taken in it. so on the th sherman tendered his resignation as major general, claiming that no plan of action could be determined upon between himself and the governor. the action taken by the governor in this move was by virtue of the constitution of the state, his duty to enforce the execution of the laws, he claiming that the vigilance committee had no right to arm and act without respect to the state laws. terry and hopkins affair. on the nd of june, , the city was in great excitement at an attempt by david s. terry to stab sterling a. hopkins, a member of the committee. terry was one of the judges of the supreme court. hopkins and a posse were arresting one rube maloney when set upon by terry. hopkins was taken to engine house no. where dr. r. beverley cole examined and cared for his wound which was four inches deep and caused considerable hemorrhage. the blade struck hopkins near the collar bone and severed parts of the left carotid artery and penetrated the gullet. terry and maloney at once fled to the armory of the "law and order party" on the corner of jackson and dupont streets. the alarm was at once sounded on the bell at fort gunnybags and in less than fifteen minutes armed details were dispatched to and surrounded the headquarters of the "law and order party" where terry had taken refuge, and in less than half an hour had complete control of the situation, and by : o'clock in the afternoon terry and maloney and the others found there had been taken to the committee rooms as well as the arms (a stand of , muskets) and ammunition. about "law and order" men together with about muskets were also taken from the california exchange. several other places were raided and stripped of their stands of arms. terry was held by the vigilance committee until august th and charged with attempt to murder. mr. hopkins recovered and terry, after a fair and impartial trial, was discharged from custody, though many were dissatisfied at his dismissal and claimed that he should have been held. terry was requested to resign and resigned his position as judge of the supreme court. duel between terry and broderick. in judge terry had an altercation with united states senator daniel c. broderick which caused the former to challenge the latter to a duel. this duel which was with pistols was fought september , , near lake merced, near the present site of the ocean house. it resulted in broderick's death, whose last words were, "they killed me because i was opposed to a corrupt administration, and the extension of slavery." terry was indicted for his duel with broderick, as it came in conflict with the state laws. the case was transferred to another county, marin, and there dismissed. during the civil war terry joined the confederate forces, attained the rank of brigadier-general, and was wounded at the battle of chickamauga. at the close of the conflict he repaired to california and in located at stockton and resumed the practice of the legal profession. some years later he became advocate for a lady who was one of the principals in a noted divorce suit. subsequently she became his wife. legal contention arising from the first marriage caused her to appear before the circuit court held in oakland, over which stephen j. field, associate justice of the united states supreme court, presided. terry and field, shooting of terry. in open court the justice proceeded to read the decision. as he continued, the tenor was manifestly unfavorable to mrs. terry. she suddenly arose and interrupted the reading by violently upbraiding field. he ordered her removal from the judicial chamber. she resisted, and terry coming to his wife's assistance, drew a knife and assaulted the bailiffs. he was disarmed, and together with his wife, overpowered and secured. the court of three judges sentenced mrs. terry to one month, and her husband to six months imprisonment, which they served in full. justice field returned to washington, and the next year in fulfillment of his official requirements came again to california. he had been informed that terry uttered threats of violence against his person, and therefore he was accompanied by a man employed by the government to act in the capacity of body-guard. on the journey from los angeles to san francisco, field and his companion, with other passengers, left the train to lunch at lathrop. terry and his wife, who had boarded the cars en route, also left the cars and shortly afterwards entered the same restaurant. a few minutes later terry arose from his seat, walked directly back of field and slapped or struck the venerable justice on the face, while he was seated. nagle, the guard who attended field, leaped to his feet and shot terry twice. terry fell and died instantly. this event occurred on the th day of august, , not quite thirty years from the time he shot broderick. hetherington and randall. on the evening of july , , the vigilance committee had another case on their hands which called for immediate action. joseph hetherington, a well-known desperate character with a previous record, picked a quarrel with dr. randal in the lobby of the nicholas hotel. they both drew their revolvers and shot: after the second report the doctor dropped and hetherington, stooping, shot again, striking the prostrate form in the head, rendering the victim almost unconscious. he died the next morning. the shooting was brought about through randal's inability to repay money borrowed from hetherington on a mortgage on real estate. hetherington, who was captured by the police, had been turned over to the committee by whom he was tried, the committee going into session immediately after the shooting, found him guilty of murder and sentenced him to be hanged. we were again called out on the th and were stationed so as to command the situation. this time a gallows was erected on davis street, between sacramento and commercial. another man, philander brace by name, was also to be hanged at the same time, and at about : in the afternoon of july th they were both conveyed in carriages, strongly guarded, to the execution grounds. hetherington had previously proclaimed his innocence, claiming that the doctor had shot first and he had simply shot in self-defense, but his previous record was bad, he having killed a doctor baldwin in and had run a gambling joint on long wharf, and eye witnesses claimed that he not only provoked but shot first. brace was of a different nature, he was a hardened criminal of a low type. the charge against him being the killing of captain j. b. west about a year previous, out in the mission, and of murdering his accomplice. he had also confessed to numerous other crimes. hanging of hetherington and brace. thousands of people were on the house-tops and in windows and on every available spot from which a view of the gallows was to be had. the prisoners mounted the scaffold, being accompanied by three vigilance committee officers who acted as executioners and a rev. mr. thomas. after the noose had been adjusted, hetherington addressed the crowd, claiming to be innocent, and ready to meet his maker. brace, every once in a while, interrupted him, using terrible and vulgar language. the caps were adjusted, the ropes cut and the two dropped into eternity. they were left hanging minutes, after which the bodies were removed by the committee to their rooms and afterwards turned over to the coroner. they were both young men--hetherington , a native of england, had been in california since , while brace was but , a native of onandaigua county, n. y. ballot box stuffing. the ballot boxes that had been used by casey and his ilk were of a peculiar construction, having false slides on the sides and bottoms that could be slipped out and thereby letting enough spurious votes drop into the box to insure the election of their man or men. it was claimed that nearly the entire set of municipal officers then holding office had secured their election through this man. they were afterwards requested by the vigilance committee to resign their offices, but at the first election that was held on november th, they were all displaced by men selected by a new party (the people's party) that was the outcome of the efforts of the vigilance committee. billy mulligan. william mulligan was shipped out of the state on the steamer "golden age" on june th, , with instructions never to return under penalty of death. however, after three or four years of absence he returned to san francisco. he was often seen on the street, but was not molested until sometime in the summer of when he got a crowd of boys around him on the crossing of prospect place and clay street, between powell and mason streets. it was not long before he had trouble with them and shot into the crowd, injuring a boy, however, not seriously. the police were soon on the ground, but mulligan had made his way into the old st. francis hotel on the corner of clay and dupont streets which was vacant at that time. the police came and they were directed to the building where billy could be found. when the police entered they found they were half a story below the floor of a very large room in the second story. billy was called upon to surrender. he told them that the first one that put his head above the floor would be a dead man, and knowing the desperate character they were dealing with, they thought best to retire and get instruction from the city attorney, who told them they had a right to take him dead or alive, whereupon they proceeded to arm themselves with rifles and stationed themselves on the second floor of a building on the opposite side of the street from the st. francis on dupont street, and when mulligan was passing one of the windows the police fired. mulligan dropped to the floor, dead as a door nail. he was turned over to the coroner and has not been seen on the streets since. charles p. duane is another one of twenty-seven men who were shipped out of the state and returned. he shot a man named ross on merchant street, near kearny. i do not remember whether the man lived or died, or what became of duane. black list. from the book entitled "san francisco vigilance committee of ' ," by f. w. smith, i quote the following, with some corrections and alterations: "i am informed by an ex-vigilante that the committee roll call of ' , just before its disbandment, numbered between eight and nine thousand. in concluding our history of this society, we will give the names and penalties inflicted on those who came under its eye during the latter year; whose conduct was so irreparably bad that it could not be excused. those who suffered the death penalty did so in expiation for lives they had taken. the names of these culprits are familiar to the reader. we also give the names of those who were required to leave the state; all of whom, in the archives of the vigilantes, fall under the head of the black list:" james p. casey, executed may nd, . charles cora, executed may nd, . joseph hetherington, executed july th, . philander brace, executed july th, . yankee sullivan (francis murray), suicided may st, . chas. p. duane, shipped on "golden age," june th, . william mulligan, shipped on "golden age," june th, . woolley kearney, shipped on "golden age," june th, . bill carr, sent to sandwich islands, june th, , bark "yankee." martin gallagher, sent to sandwich island, june th, , bark "yankee." edward bulger, sent to sandwich islands, june th, , bark "yankee." peter wightman, ran away about june st, . ned mcgowan, ran away about june st, . john crow, left on "sonora," june th, . bill lewis, shipped on "sierra nevada,"--june th, . terrence kelley, shipped on "sierra nevada," june , . john lowler, shipped on "sierra nevada," june th, . william hamilton, shipped on "sierra nevada," june th, . james cusick, ordered to leave but refused to go, and fled into the interior. james hennessey, ordered to leave, but fled to the interior. t. b. cunningham, shipped july th, , on "john l. stephens." alex. h. purple, shipped july th, , on "john l. stephens." torn mulloy, shipped july th, , , on "john l. stephens." lewis mahoney, shipped july , , on "john l. stephen,." j. r. maloney, shipped july th, , on "john l. stephens." dan'l aldrich, shipped july th, , on "john l. stephens." james white, shipped july st, , on "golden age." james burke, alias "activity," shipped july st, , on "golden age." wm. f. mclean, shipped july st, , on "golden age." abraham kraft, shipped july st, , on "golden age." john stephens, shipped september , , on "golden age." james thompson, alias "liverpool jack," shipped september , , on "golden age." many others either left of their own volition or under orders to leave the state. bulger and gallagher who had been shipped out of the country on june th returned to san francisco. in their haste the committee had failed to read their sentences to them and they were not aware of the penalty of returning. they were again shipped out of the country and ordered not to return under penalty of death. there were persons killed during the first months of . six of these were hanged by the sheriff, and forty-six by the mobs, and the balance were killed by various means by the lawless element. "fort gunnybags" . on march , , the california historic landmarks league placed a bronze tablet on the face of the building at sacramento street that had formerly been the headquarters of the vigilance committee of , inscribed as follows: "fort gunnybags was situated on this spot, headquarters of the vigilance committee in the year ." many of the old committee and pioneers participated in the ceremonies. the old monumental bell which had been used those stirring days was also in evidence and pealed out its last "call to arms." closing chapter of vigilance committee. as a closing chapter to the history of the vigilance committee of , or at least the immediate cause of its coming into existence, there was sold at public auction in san francisco on the evening of january th, , the very papers that james king, of william, had had transcribed from the records in new york and published in his paper the "evening bulletin" showing the record of casey's indictment, imprisonment and pardon, the publication of which he, casey, resented by shooting king. in addition to these documents were sold many of the books, papers, etc., of as well as other books and papers relating to the vigilance committee that had been collected together by mr. c. j. king, a son of james king of william. vigilance committee work in , ' and ' . while there has been a great deal said about the vigilance committee in california in , there has not been much said about it in ' , ' and ' . that the reader may know what was going on up to that time, i must now draw largely from previously published accounts for my information, for a condensed statement. on the th day of january, , mr. washington a. bartlet became the first alcalde of san francisco, under the american flag. at this time the population numbered , including indians. during ' and ' it increased to two thousand, and by the last of july, , it was over five thousand. the condition of the town at this time was terribly demoralized, gambling, drunkenness and fights on every corner. about this this came a class of offscourings of other countries and the curses to california. it was during this dreadful state of uncertainty that the famous vigilance committee of was organized, and it now became known that there was an organized committee for the purpose of dealing with criminals. it was about this time the case of john jenkins came up and he was arrested and tried by the committee, and condemned to be hanged. he was then hanged until he was dead. the tragic fate of jenkins, and the determination manifested to deal severely with the villains had the effect of frightening many away. the steamers to stockton and sacramento were crowded with the flying rascals. the sydney coves and the more desperate characters remained. at this, time the city served notices on all persons known to be vicious characters to leave the city at once, on fear of being forcibly expelled to the places whence they had come. this was rigidly enforced and had a very wholesome effect. the next one to come before the committee was james stuart, who was transported from england to australia for forgery. it is not worth while to go into details on account of this man, for he confessed to crimes enough to hang him a dozen times. on the morning of july th, , the taps on the bell of the monumental engine house summoned the entire vigilance committee. the prisoner was then allowed two hours grace, during which time the rev. dr. mills was closeted with him in communion. after the expiration of the two hours, the condemned was led forth under a strong guard. he was taken down battery street to the end of the market street wharf, where everything had been previously arranged for the execution. very soon after the procession reached the spot the fatal rope was adjusted and the condemned hoisted up by a derrick. the hanging of stuart seems to have been a very bungling piece of work, but this man's life was given to evil doing, and the great number of crimes confessed and committed by him would seem to say that he was not deserving of any more sympathy than which he got. this was a sorry spectacle, a human being dying like a dog, but necessity, which dared not trust itself to feelings of compassion, commanded the deed, and unprofitable sentiment sunk abashed. two more criminals and i am done with rough characters--samuel whittaker and robert mckenzie, who had been arrested and duly and fairly tried by the committee. they confessed their guilt and were condemned to be hanged. their names being familiar and repulsive to all decent citizens. they were hanged side by side in public view on august th, . the sight striking terror to the hearts of other evildoers, who were impressed by these examples that they could no longer be safe in san francisco, such as had been suspected and notified by the committee, quickly left the city; they, however, found no shelter in the interior. this brings me to where i took up the vigilance committee of . san francisco in . in view of the great and growing importance of the town of san francisco (yerba buena), situated on the great bay of the same name, we will give our readers a few pertinent and fully reliable statements. "the townsite, as recently surveyed, embraces an extent of one and one-half square miles. it is regularly laid out, being intersected by streets from to feet in width. the squares are divided into lots of from / varas (the spanish yard of / inches) front and deep, to varas square. the smaller and more valuable of these lots are those situated between high and low water mark. part of these lots were sold in january last at auction, and brought from $ to $ . the established prices of and vara lots are $ and $ . san francisco, last august, contained souls, of whom were whites, four-fifths of these being under years of age. some idea of the composition of the white population may be gathered from the following statement as to the nationality of the larger portion: english, ; german, ; irish, ; scotch, : born in the united states, ; californians, . previously to the first of april, , there had been erected in the town buildings, nearly all of which had been erected within the two years preceding, whereas in the next four months more had been constructed. there can be no better evidence of the advantages and capabilities for improvement of the place than this single fact."--st. louis "reville," february , . john a. sutter. i remember standing on the bank of the sacramento river, talking with captain sutter, in the fall of ' ; he remarked, "i have moored my boats in the tops of those cottonwood trees, where the driftwood showed not less than feet from the ground." "the plaza." portsmouth square or the "plaza," as we then called it, was located in the hub of the old settlement on the cove, and occupied half a block to the west of kearny street, between clay and washington. it was the scene of all public meetings and demonstrations. it was named after the old sloop-of-war "portsmouth," whose commanding officer, captain montgomery, landed with a command of sailors and marines on july , , raised the american flag here and proclaimed the occupancy of northern california by the united states. a salute of twenty-one guns was fired from the "portsmouth" simultaneously. on the east side of kearny street, opposite the plaza, was the "el dorado," a famous gambling saloon, adjoining which was the parker house, afterwards the jenny lind theatre, while on the north side of washington street stood the bella union theatre, and on the west on brenham place was the old monumental fire engine house whose fire bell played so prominent a part in the days of the vigilantes. in the spring of the writer was in san francisco, and made the acquaintance of captains egery and hinkley, who were the owners of the pacific foundry. they being in need of some molding sand for small work, i consented to go to san jose and get some for them. i engaged mr. watts, who had a little schooner that would carry about six tons. he was captain and i was super-cargo, and we made the trip down in about one day. i found what i wanted on the banks of a slough, loaded the schooner and returned to san francisco. while in san jose i came across two young ladies. i had a very pleasant chat with them. i learned later on that they were the daughters of mr. burnett, who became the first governor of california. i heard no more of them until , when i was on my way to monterey to attend the unveiling of the sloat monument. i enquired for them of a man in the depot, and he told me that one of them was lying over there, dead (pointing in the direction), i could not help expressing my sorrow. the captain landed me and my cargo in san francisco in good shape, without any mishap on the voyage. i delivered the cargo in good order and was well paid. early realty values. in i was in san francisco and by chance was on clay street where the city was selling -vara water lots in the neighborhood of sansome, battery and front streets, at auction, $ for inside lot, and $ for corner lots. i stood there with my hands in my pockets, and gold dust and gold coin on my person that was a burden to me and bought not a single lot. there were many others who were in the same fix that i was. you may say, "what a lot of fools," and i would say, "yes." here is another little joke: sometime before this i made a deposit of a sack of gold dust with adams & co.'s express in san francisco. when the time came for me to leave the city, i went into the office to draw my sack of dust. the clerk brought it forward at once and i said, "how much for the deposit?" he said, "five dollars." then i said, "you will have to take it out of the sack as i have no coin." he said, "are you going to sell it?" "yes," i said. "well," said he, "you can sell it at the counter on the other side, and pay that clerk." "all right," said i, and sold my dust. it amounted to $ . he counted out the $ in small change, and slipped it out onto the counter. i let it lay there until he had counted out the rest. a deal in "slugs." at this time the $ slugs were in circulation. he counted out the $ in a pile and took hold of the bottom one and set the pile over to my side of the counter, as much as to say, "there is your money." i said to him "there is five dollars coming to you for the deposit of the dust." he picked the five dollars out of the change on the counter. i picked up the balance of the change and put it into my pocket. i also picked up the pile of slugs by the bottom one in the same way that he handed them to me and dropped them into an outside pocket of my coat without counting them, and started for the four o'clock boat for stockton. on my way to the wharf i thought that pile of slugs looked large and i took them out and counted them. i found that i had twelve instead of eight. i turned around and went back to the office, to the same counter and clerk, and said to him, "do you rectify mistakes here?" he said, "not after a man leaves the office." i said, "all right," and left the office and made the stockton boat all right. but there were no insane asylums there at that time. harry meiggs. in the early fifties honest harry meiggs (as he was called) was one of our most enterprising, generous and far-seeing citizens. his first venture was in the banking business. it was while engaged in this pursuit that he gained the name "honest harry meiggs." his banking business was good for a year or so and then he conceived the idea of building a wharf at north beach. it commenced at francisco street between powell and mason streets. it extended north several hundred feet and was used for a landing place for lumber in the rough, to be conveyed to his mill on the south side of francisco street near powell. in order to accommodate the demands of trade an "l" was extended eastward from the end of his wharf. about this time he got into financial troubles. in october, , he departed with his family for chili between two days and passed out through the golden gate, and no more was heard of him for a long time. it finally became known that he was in peru, engaged in building bridges for that government. he took contracts and was very successful and became well off in a few years. he sent an agent to san francisco to hunt up all his creditors and pay them, dollar for dollar with interest. i knew a widow in san francisco in the late ' s by the name of rogers who was a creditor, who married a man by the name of allen; i think that was in . they went to peru and saw mr. meiggs. he paid all she demanded, about $ . allen returned and reported to the children that their mother died while in peru of fever, but they never got a cent of the money. mr. meiggs was born in new york in and died in peru in . san francisco's first town clock. the first public clock ever erected in san francisco was placed on the frontage of the upper story of a four-story building at nos. - montgomery street, that was being built by alexander austin. this was in . the clock was ordered by him and brought via the "panama route" from new york, arriving in san francisco on the steamer panama. mr. austin occupied the ground floor as a retail dry goods establishment and it was one of the first, if not the first, of any prominence in the city. he afterwards moved to the southeast corner of sutter and montgomery streets and continued there until when he was elected city and county tax collector. the clock remained on the building until january th, , when the then owner of the building, mr. d. f. walker, had it removed so as to arrange for the remodeling of the interior. mr. w. h. wharff, the architect in charge of the remodeling, purchased the clock and retained it in his possession until november , , when he presented it to the memorial museum of the golden gate park, where the curator, mr. g. h. barron, placed it in the "pioneer room." it is to be seen there now. admission day flag. here is an interesting fact that has never been given publicity before, and i simply relate it as told me by sarah connell, the daughter of the man that carried it. "mr. d. s. haskell, manager of the express and banking business of adams & co., conceiving the patriotic idea of having an american flag carried in the division of which his firm was to be a part, endeavored to procure an american flag, but found that nothing but flags of the size for ships or poles were to be had. he then started to find material from which to have one made, but in this he was unsuccessful also. so, undaunted, he at last found a dressmaker who lived somewhere in the neighborhood of washington and dupont streets, who found in her 'piece-bag' that she had brought from new york, enough pieces of silk and satin (they were not all alike) to make a flag three feet by two feet. he was so delighted with her handiwork that he gave her a $ slug for her work[ ]. "thus it was that adams & co. were able to parade under the stars and stripes in that memorable parade of october , , in celebration of the admission of california as a state into the union. after the parade mr. haskell presented the flag to their chief messenger, my father, mr. thomas connell, and it has been in our possession since." mr. thomas connell. mr. connell was one of the few of the early comers who never went to the mines, though of course, that was his intention. he started, but somewhere on the contra costa side--it was all contra costa then--he fell ill of malaria fever. there was no one with time to bother with a sick man and he was unable to proceed or return so he expected to end his life there. when the disease abated he concluded that he had no desire to penetrate further into the wilderness, so he turned his face towards san francisco again. he was a shipwright by trade and though there was nothing doing in his line, he saw the possibilities of a boating business when there were no wharves, piers or other accommodations for freight or passengers. one of the curious uses to which his boats were put was the carrying of a water supply. they were chartered by a company and fitted with copper tanks which were filled from springs near sausalito. on this side of the bay the water was transferred to wagons like those now used for street sprinkling and the precious fluid was supplied to householders at a remunerative rate of twenty-five cents a pail, every family having one or two hogsheads fitted with a spigot to hold the supply. mr. connell also carried the first presidential message received in the state, rowing up the sacramento river day and night in his own boat to deliver the document at the capitol, and for sake of the sentiment he also carried the last one received by steamer as far as oakland, whence the delivery was completed by train. uncle phil roach, happy valley. uncle phil roach, editor and founder of the "san francisco examiner," lived on clementina street near first. he was one of those good natured, genial old men that everybody liked, was at one time president of the society of california pioneers ( - ), and later elected to the state legislature. he afterwards acted as administrator of the blythe estate, but died before its final settlement. the place where he lived was called happy valley and the only entrance to it was at the intersection of market, bush and first streets, this crossing being at the east end of a sand dune about feet high, extending westerly about half a mile. at this time the waters of the bay came up to the corner of market and first streets, but it was not long before this, and many other sand dunes, disappeared, being scraped and carted off to fill the nearby mud flats. there was at this time a little wharf feet wide extending out into the cove from the foot of clay street at davis feet to a depth of feet. it was called "long wharf." to the north of this wharf the water lapped what is now sansome street for a block (to washington street) and followed the shore line to the corner of jackson and montgomery streets. early water supply. my mind drifts back to the days when our water system was dependent in part upon a well near the corner of market and first streets. this was in when the population of san francisco was between , and , . i was then living on third street near mission and got my supply of water from a man named somers who conveyed water about the city to his various customers in a cart. i took water from him for about three years at the rate of $ . per week. many's the time i have gone out to the mission hunting rabbits. all that part of the city was as wild as it ever was, sand dunes and low grounds. about three years later a company built a plank toll road on mission street from some point near the water front to the mission, a distance of about three miles. this made an opening through the sand dunes and that section filled up rapidly. postoffice. the postoffice was situated on the lot at the northwest corner of washington and battery streets. it was built in . previous to the erection of this building the pioneers obtained their mail from the postoffice on clay street and waverly place, and on clay street near kearny opposite the plaza (portsmouth square), and afterwards on clay and kearny streets. the great fire of destroyed these places. to avoid confusion and facilitate the delivery of the mail on the day the steamer arrived, long lines were formed of people who expected letters from home. it was a frequent occurrence to see the same people standing in place all day waiting their turn, the delivery windows being arranged alphabetically. oft-times persons would sell their places for as much as ten and even twenty dollars. john parrott. john parrott, the banker, was a good natured man and could take a joke with much grace. here is one: "a broker came to him one day and said: 'mr. parrott, i want to borrow one thousand dollars on a lot of hams in the warehouse.' 'all right,' said mr. parrott. it went on for some time and mr. parrott looked around for his ham man, but could not find him, but he found the hams and the greater part of the weight of them was maggots. mr. parrot was very much disgusted. time went on for a number of years and another man came to him to borrow money on hams in the warehouse. mr. parrott said to him, shaking his finger before the man's face, 'no more hams, no more hams,' and walked off." it was a standing joke on the street for a long time. this was late in the ' 's. in - i built two very good houses on the south side of howard street near fourth. i lived in one of them about two years and then bought on the north side of taylor street between clay and washington streets and resided there years. pony express. i was present when the first messenger mounted his pony to start on the first trip across the continent. he started from kearny street between clay and washington, opposite the "plaza"--this was on the rd of april, . it was a semi-weekly service, each rider to carry pounds of letters--rate $ per half ounce. stations were erected about miles apart and each rider was expected to span three stations, going at the rate of eight miles per hour. the first messenger to reach san francisco from the east arrived april , , and was enthusiastically received. time for letters from new york was reduced to days, the actual time taking from / to days. the best horses and the bravest of men were necessary to make these relays, over the mountains, through the snow and across the plains through the indian-infested country. the distance from san francisco to st. joseph, mo., was miles and the service was established by majors, russell & co., of leavenworth, kansas. now i will go back a few years and pick up a little experience that was scattered along the road. in i took my family around the bay for an outing in a private carriage. we went through san mateo, redwood city, santa clara, san jose, hot springs, hayward, san leandro, oakland and back to san francisco by boat. we enjoyed the trip very much without any mishap to mar its pleasure. a venture in flour. about this time i bought out loring & mason who were in the retail grocery business on the corner of taylor and clay streets. this was another venture in which i had never had any experience, "but," said i, "here goes for what there's in it." a few days later there came a man in his buggy from over the hill with whom i was very little acquainted. he had charge of the empire warehouse in the lower part of the city. his name was mr. garthwait. he called at my store and said, "woolley, i have a lot of oregon standard flour in the warehouse. the storage is paid for one month, and i will sell you what you want for $ and three bits a barrel, and you can take it out from time to time as you like." after looking the situation over for a few minutes i came to the conclusion that i could not buy any lower. i said, "well, i will take one hundred barrels." "all right," said he, and drove off. in a few days i went down and paid for it. about the middle of december it commenced to rain in the valleys and a few days later it rained in the mountains throughout the state, and the snow commenced to melt and that, together with the rain in the valleys, started the rivers to rising, and as the rivers went up so did the flour. the water gauge at sacramento indicated feet and inches in going up while flour indicated dollars and cents in going up. on the first of january, , it was still raining and the water coming down in a greater volume. communication was cut off from all parts of the country except by water. the legislature was in session that winter and was obliged to adjourn and go to san francisco to finish its labors. in order that my readers may adequately realize the greatness of this flood it is no more than fair to say that the river boats from san francisco went up j and k streets in sacramento city and took people out of the second-story windows. now, then we will call this high-water mark and flour $ a barrel and going up. during this time i was letting my customers have what they wanted at the quotation price. it continued to advance about one dollar per day until it reached sixteen dollars per barrel. at this time i had very little left and it all went at that price. very soon after this flour came in from oregon and the price went down, as well as the water, and the market assumed a lower level and business went on as usual. it must be remembered that all transportation at this time was either by water or highway. a venture in oil. in this year was the beginning of the civil war and for the benefit of those who came into active life later on i will give them a little of my experience in a small way. at the time i purchased the store of which i have spoken i took over a standing contract they had with a firm in boston to send them a specified amount of coal oil around cape horn, as near six weeks as any vessel would be leaving for san francisco. i took what was on the way at that time and the shipments were continued to me. at this time it took from sixty to seventy days to get answers to letters from the east. time and business go on. we had on an average of about two steamers a month from new york with the mails. in the war tax and stamp act came in force. it was high and quite a hardship for some but everybody paid it cheerfully and with a good grace, and felt that they were getting off easy. about this time greenbacks came into circulation as money. it was legal tender and you could not refuse it. it made a great deal of hard feeling on many occasions but after a long time it set settled down to a premium on gold, which fluctuated from day to day. finally the premium on gold was so high that currency was only fifty cents on a dollar, that is, one dollar in gold would buy two dollars in currency. on account of this many debtors would buy currency and pay their creditors with it. this was considered very crooked on the part of the debtor. i myself was a victim to some extent. the "evening bulletin" exposed a great many men by publishing their names but by so doing it made enemies and it did not last long. all bills rendered from this time on were made payable in united states gold coin. my coal oil cost me fifty cents per gallon in boston, payable in currency. the freight was also payable in currency. now my readers will readily see that my coal oil cost me a little over twenty-five cents per gallon laid down in san francisco. about there was an unusual demand for coal oil and it was scarce and there was very little on the way around cape horn, consequently the market price went up very rapidly until it reached $ . and $ . per gallon. the result was that i sold all i had in the warehouse and on the way around the horn. i kept what i had in the store for my retail trade. i do not look upon these speculations as any foresight of mine, but the change of circumstances and conditions of the market. flood of ' and ' . the great flood of ' and ' was an occasion seldom known in the state. early in december ' it commenced to rain in the valleys and snow in the mountains. in about two weeks it turned to rain in the mountains and valleys. the melting of the snow caused the rivers to rise very rapidly, the levees gave way and the waters flooded the city. the merchants commenced to put their goods on benches and counters, anywhere to keep them above water. families who had an upper story to their house moved into it. the water continued to rise until it reached a point so that the boats running between sacramento and san francisco went up j and k streets and took people out of the second story of their houses. the islands were all flooded and there was great suffering along the river besides the great loss of property. this flood did more damage than any high water since ' , but it was as an ill wind as far as it concerned my business, as i related previously. civil war times in s. f. in dr. wm. a. scott, pastor of the calvary presbyterian church, on the north side of bush street between montgomery and sansome streets, closed his services praying for the presidents of the union and of the confederate states. as soon as the benediction was pronounced mrs. thomas h. selby smuggled him out of the side door into her carriage and off to her home, fearing the congregation, which had became a seething mob, might capture and do him bodily harm. there was no demonstration at this time but the next morning there was to be seen in effigy dr. scott's form hanging from the top of the second story of a building in course of construction on the same block. it created some excitement for the time being, but it soon simmered out. lloyd tevis was getting badly frightened about this time for fear his home on the corner of taylor and jackson streets would be destroyed and appealed to the police for protection. he was told to go home and drape his home in black. this he did most effectually, the occasion being the assassination of president abraham lincoln. one of the exciting times in san francisco in was when a mob went to the office of "the examiner" on washington street near sansome and carried everything that was movable into the street and piled it up with the intention of burning. it seems that this paper was so pronounced in its sympathy with the cause of the confederacy that it aroused such a feeling as to cause drastic measures. the police authorities were informed of what was going on and colonel wood, captain of police, got a squad of policemen together and proceeded to the scene, but their movements were so slow that it was hard to tell whether they were moving or not and by the time they had reached the place the boys had carried off nearly everything that had been thrown out. i have two pieces of type now that i picked up in the street about that time. uncle phil roach, the editor, was in later years a member of the state legislature and tried to get an appropriation to cover his loss but his efforts were of no avail. president lincoln and gen. vallejo. president lincoln in the early part of the civil war called general vallejo to washington on business. while there general vallejo suggested to mr. lincoln that the united states build a railroad into mexico, believing as he said, it would be a benefit to both nations. mr. lincoln smilingly asked, "what good would it do for our people to go down to mexico even if the railroads were built? they would all die of fever and according to your belief go down yonder," with a motion of his hand towards the supposed location of the infernal regions. "i wouldn't be very sorry about that," remarked general vallejo coolly. "how so?" said mr. lincoln. "i thought you liked the yankees." "so i do," was the answer. "the yankees are a wonderful people, wonderful. wherever they go they make improvements. if they were to emigrate in large numbers to hell itself, they would somehow manage to change the climate." off to the nevada mines. uncle billy rodgers, from peoria, ill., was a fellow passenger of mine when crossing the plains in in the first division of the "turner, allen & co. pioneer mule train," consisting of wagons, mules and passengers. he was a gambler before he left home and he gambled all the way across the plains. many people think that a gambler has no heart but this man was all heart. i knew him on one occasion, after visiting a sick man in camp, to take off his shirt and give it to the sick man and go about camp for an hour to find one for himself. we arrived in california on september , . we parted about that time and i saw no more of him until the winter of ' and ' when i was on my way to white pine in nevada. we had to lay over a few days at elko, nevada, in order to get passage in the stage. as we had saddles and bridles we made an effort to get some horses and furnish our own transportation, and we had partly made arrangements with a man by the name of murphy. the day previous to this i overheard a conversation between two gentlemen sitting at the opposite end of a red hot stove. after they parted i approached the one left and said, "is this uncle billy?" he said, "yes, everybody calls me 'uncle billy' but i do not know you." i gave him my name and he was as glad to see me as i was to see him. we had a long and very pleasant chat. now to take up the line of march where i left off, i said, "hold on boys a little while i go and see a friend of mine." "all right," said they. i called on uncle billy and told him what we were doing and asked him what kind of a man murphy was, and his answer was, "he's a very good blacksmith," and repeated it two or three times, then said, "i am in a wild country and never say anything against anybody." i said, "that's enough uncle billy, i understand you thoroughly." i parted with him and we took the stage for hamilton and treasure hill. the last i heard of uncle billy was that he went north as an escort to some party and died there. uncle billy was a gambler all his life but not a drinker. his heart, his hand and his pocket were ever open and ready to respond to the relief of the distress of others. the writing of the above calls to mind another meeting with uncle billy of which i had lost sight, the date of which i cannot fix. i think it was in the first half of ' i met him on the street in san francisco and our meeting was most cordial. we had a very pleasant street visit and he said to me, "woolley, i am going home, i shall take the next steamer for new york." i said to him, "how are you fixed, uncle billy?" he said, "i have eleven thousand dollars and i am going home." i congratulated him for his courage and good luck and wished him a pleasant voyage and a happy reunion with his old friends. about a week later i met uncle billy on the street again and said to him, "how is this uncle billy, i thought you were going home on the last steamer?" "yes," said he, "i thought so too; at the same time, i thought i would just step into a faro bank and win just enough to pay my passage home so that i would have even money when i got home. but instead of that i lost every dollar i had and i am going back into the mountains again. my readers know the rest." my friends this is only one of thousands who had the same experience. in "the girl i left behind me" went east on a visit of six months, taking with her our two children. in the fall of that year ( ) i went to white pine in nevada. it was a very cold trip for me and i came home in june "thawed out," sold out my grocery business and went into the produce commission business and followed it for ten years. martin j. burke. chief of police martin j. burke i knew very well in the early sixties. he was a genial and good natured man, well liked by everybody who knew him. i went to him one time with a curb bit for a bridle which would bring the curb rein into action with only one pair of reins. he was much pleased with it and used one for a long while. george c. shreve, the jeweler, had one also, as did charles kohler, of the firm of kohler & frohling, wine men of san francisco. he offered me $ for my right but i refused it. i applied for a patent only to find that another was about twenty years ahead of me. the donahue brothers. james, peter and michael donahue, the founders of the union iron works on first and mission streets, were three honorable, upright and just men. their works have since been removed to the potrero south of the third and townsend streets depot of the southern pacific co., and have of late passed into the hands of the united steel corporation. they are the largest of their kind on the pacific coast and stand a monument to their founders. james dunahue built and owned the occidental hotel on montgomery street between sutter and bush streets. peter donahue had the foundry and machine shop. at one time there was a little misunderstanding understanding between the two and they did not speak to each other for quite a while. during this time peter started to build an addition of brick on the north side of the foundry, got up one story and stopped. the two brothers met one day opposite the unfinished building and james said, "peter why don't you go on and finish your building?" peter replied, "i have not got money enough." "oh!" said james, "go ahead and finish it up and i will let you have all the money you want." 'from that time on they resumed their brotherly relations. peter went on in his business. his last venture was to build the petaluma railroad. both are now dead. michael went east early in the ' s and i knew very little of him. the take of a young bull. in i was in the produce commission business in san francisco and had a consignor in vacaville by the name of g. n. platt who had been presented with a fine young bull by frank m. pixley, who lived in sausalito, in the hills about two miles from town. mr. platt requested me to go and get the bull and ship him to vacaville, so i left next morning for sausalito. here i sought a man who could throw the lasso. after two hours i found the man i wanted. he had the mustangs and all the necessary equipment. we mounted and left for mr. pixley's residence where we were informed that the animal we wanted was somewhere in the hills with the other cattle. this was rather indefinite information, but we had to make the best of it and started out. our mustangs were well calculated for the occasion and we went over the hills like kites. finally we saw some cattle about a mile away and we made for them, found what we were in search of and made for him. he had horns about two inches long and was as light on his feet as a deer, and gave us a lively chase for about one hour. when we had him at the end of a rope he was determined to go just the opposite way than we wanted him to, but the man and the mustang at the other end of the rope had their way part of the time, so after about two hours hard fighting we succeeded in getting the little fellow down to the wharf where i found that there would not be another boat until after dark, so i concluded to wait and come over in the morning and ship him. the next thing was to dispose of the bull for the night. i said, "here is a coal bunker, we will put him in here." so after getting permission we started for it with the bull at one end of the rope and the vaquero at the other. the bull got a little the better of the man and went up the wharf full tilt with the vaquero in tow. the vaquero said, "there is a post on the wharf, the bull will go one side and i will go the other and round him up." but he got rounded up himself and left sprawled out on the wharf. this let the curtain down for the night and the bull went back to the hills with the rope. i returned to san francisco, went back in the morning, hunted up my man and mustangs, mounted and went into the hills again for my bull. this was a bully ride, i enjoyed it hugely, found our game about noon, picked up the rope with the bull on the end of it. he was still wild and full of resistance. he was the hardest fellow of his size that i ever attempted to handle. we made our way back to the landing, found the boat waiting. i called the boat hands to help put him on board. they came. i put one at his head, one on each side and one behind, and they all had as much as they wanted to keep control of him. finally he was made fast on the boat. while on our way to san francisco a lady from the upper deck called down to me, saying, "i will give you one hundred dollars for that bull." i said, "no, madam, you cannot have him, he is going into the country for business." after landing in san francisco i had to take him from one wharf to another so as to take the vacaville boat. i got a job wagon and the boat hands to take him out and tie the fellow to the hind axle of the wagon and then go by his side to the other boat. we fastened him securely to a stanchion and tagged to his destination. this relieved me of any further responsibility. i saw him about three years later in vacaville. he was a fine large fellow with all the fire in his eye that he had in his younger days. he had a large ring in his nose with a chain running from it to the end of each horn. now as my readers have had the bear story, and now the bull story, they will excuse me on those two subjects. admission day . another event that might be of interest and worthy of reciting here on account of the many noted personages that partook in the celebration was the ceremonies connected with the th anniversary of the admission of california as a state into the union, september , . the principal places of business, banks and offices were all closed and the buildings and streets were gaily bedecked with flags and bunting. the "bear flag" being in evidence everywhere. the shipping presented a pretty sight, the vessels seeming to outvie each other in their efforts to display the greatest amount of bunting and flags. one of the features of the day was the parade. the procession started from in front of the hall of the pioneers on montgomery street north of jackson, marched along montgomery to market, to eleventh, to mission and thence to woodward's gardens, where the exercises were held. when opposite the lick house, james lick, the honored president of the society, who reviewed the passing pioneers from his rooms, was given a rousing salute by each of the delegations as they passed. in this parade were members of the pioneer organizations from sacramento, stockton, marysville, vallejo, sonoma, marin, napa, mendocino, lake and placerville, as well as the parent organization of san francisco. the escort consisted of the st, nd and rd regiments, nd brigade, n. g. c., col. w. h. l. barnes, col. john mccomb and col. archie wason, respectively. brig. gen. john hewston, jr., commanding. marshal huefner and his aide followed. next came the several visiting pioneer organizations, then the carriages of invited guests, orator, reader and others. then the home society, turning out strong. among the persons of note to have been seen and who wore the golden badge indicating that they had come here prior to , were carlos f. glein, a. a. green, a. g. abel, george graft, w. p. toler, thos. edgar, g. w. ross, p. kadel, f. ballhaus, w. c. hinckley, h. b. russ, a. g. russ, owen murry, b. p. kooser, j. e. winson, arthur cornwall, e. a. engleberg, wm. jeffry, capt. hinckley, wm. huefner, thos. roche, f. g. blume, john c. ball and thomas eagar. among the others present were ex-gox. low, mayor otis, ex-sen. cole, chas. clayton, paul k. hubbs of vallejo, eleazer frisbie, l. b. mizner, niles searles, f. w. mckinstry and dr. o. m. wozencraft, a member of the first constitutional convention of california. in the sonoma delegation were nicholas carriger, ex-president and director; wm. hargrave, a member of the original bear flag party of , mrs. w. m. boggs and mrs. a. j. grayson, who came here in in advance of the donner party. in the vallejo delegation were john paul jones donaldson, then years old, who was on this coast as early as and who came back to reside here in . wm. boggs and his delegation from sonoma were mostly all arrivals. james w. marshall, the man who discovered gold at coloma, about miles northeast from sacramento, on january th, , was with the sacramento delegation. he was then years old, hale and hearty. mr. murphy, a survivor of the donner party, was with the marysville delegation. in addition to these were many others who have since become well known through their doings in the political arena and business world, and have made names for themselves that are honored and respected to this day and will ever find a place in this state's history. at the pavilion in woodward's gardens the literary services were held. d. j. staples, acting-president, delivered a stirring address, rehearsing the events of the past years. dr. j. b. stillman then followed with an oration in which he spoke of the gold discovery in california, the effect upon the east of col. mason's report, the sudden influx of seekers of the "golden fleece" by sea and overland, of their hardships and endurance, and their experiences at the mines, etc., etc. mr. j. b. benton read a poem by mrs. james neall. the literary exercises were followed by a lunch and that by an entertainment of mixed character. billy emerson, ben cotton, billy rice, ernest linden, f. oberist, w. f. baker, j. g. russell and billy arlington of maguire's minstrel troupe, and w. s. lawton, capt. martin and l. p. ward, and the buisley family being among the entertainers. a balloon ascension followed the entertainment and during the day the "great republic" made an excursion around the bay. on an s. p. pay-car. in the summer of the paymaster of the southern pacific railroad company, major j. m. hanford, sent me an invitation to accompany him on the pay car through the san joaquin valley, to pay off the employees of the company. i was delighted to have an opportunity of going through the valley. at the appointed time i was on hand with two boxes of cigars, for i knew the major was likely to have some lively, good natured fellows with him, and i wanted to have something with me to help me along. now i must say something about this pay car, for it was a wonderful thing for me. it had the appearance on the inside of a hotel on wheels. at the rear end was a window through which the employees were paid; the depth of the room in which were the pay master and his two check clerks, was about the same as the width of the car. in it were the safe, rifles, shotguns, pistols, ammunition galore, with an opening into what was used as the dining room and berths, which would accommodate about people. then came the cook's room on one side, with a narrow passageway on the other, into a small room in the front end of the car. this car was sixty feet in length and would make you think you were in a palace hotel on wheels. hank small, who had hands as big as a garden spade, was the engineer, with engine no. , which was always expected to pull the pay car. then there was a man by the name of olmsby who was one of the check clerks, young and very fine looking. then there was another man in the employ of the company by the name of gerald who was auditor for the company and had feet twice as large as any other man. now i want my readers to hold these three men in mind and their peculiarities for i shall refer to them later on. we are all now seated at the supper table, ten in all, and all railroad men except myself, with the dignified paymaster at the head of the table and his check clerk, olmsby, at the foot, who assumed the duty of saying grace by making motions around his chest and head, accompanied with these words, "bucksaws filed and set." this created some amusement and was the only time it occurred. the supper went on and the tables were cleared away, and then there was chatting and story telling. finally i started to tell a story and had gotten fairly into it when i suddenly discovered that every man in the room was sound asleep. it did not take me long to wake them up and have every man on his feet or on the floor. this did not last long, for i brought out one of my boxes of cigars and that settled the question right there. the next day we were in the san joaquin valley and continued the trip, paying the men as we went along, until we reached bakersfield. this was the end of the road at that time. then we returned to stockton, to sacramento, to red bluff, which was the end of the road in that direction at that time. from there we returned to san francisco, having had a very fine and agreeable trip, and each one returned to his former allotted position. i at this time was in the produce commission business on washington street near front street. inside of a year mr. olmsby left the railroad company, married and went to chico, in the sacramento valley, to run a stationery store. in , the year that president hayes was elected, his wife gave birth to a child and olmsby sent a telegram to mr. hanford reading like this: "boy, born last night, has gerald's feet, hank small's hands, my good looks, and hollered for hayes all night." employ of the southern pacific. in i went into the employ of the southern pacific co. where i remained for twenty years. in on account of a rule of the company pertaining to long service and age, i was retired on a pension. i protested, they insisted, i accepted (because i could not help myself). the company was right and i appreciated the pension as they appreciated my services. in all those years i had no reason to complain of the company. shortly after my retirement from the employ of the southern pacific company i had sickness in my family and lost "the girl i left behind me," after fifty-three years of happy married life. this was in , it is now , and i am still behind, but i shall get there bye-and-bye and we will go on together side by side. sloat monument. on june , , i went to monterey, calif., to attend the ceremonies of the unveiling and dedication of the sloat monument at the presidio of monterey. the idea, conception and putting through to a successful termination of the erection of this monument, was the work of, we might say, one man, major edwin a. sherman, v. m. w. it has taken the greater part of his time for twenty-four years. a large proportion of the money necessary was raised by subscription, but things lagged for a while, when the major applied to the u. s. congress for an appropriation of $ , to complete the work and got it. the monument was then finished under the supervision of lieutenant-colonel john biddle. at the dedication which was held under the auspices of the grand lodge of masons, col. c. w. mason, u. s. a., delivered the address of welcome, major sherman gave a brief sketch of the work and lt.-col. biddle made a few remarks. m. w. w. frank pierce, rd degree mason, officiated. the monument was erected to commemorate the raising of the american flag at monterey, the capital of california, july , , by the forces under command of com. jonathan drake sloat, u. s. n. war had been declared between the u. s. and mexico. nob hill. in later days, about , the term nob hill was applied to the crown of california street from powell street westward three blocks to jones street, on account of its having been selected by the railroad magnates of the state upon which to build their new homes, it being their desire to live together in their home life as well as in their business life. on the north side of california street commencing at powell was the residence of mr. david porter. this was torn down to make way for the fairmont hotel, ground for which was broken october , . there were other small homes on other parts of the block but they too were removed and the entire block was used as a site for this famous hostelry. in the early days a long shanty feet by to feet in width stood where the porter residence formerly stood. a man by the name of mcintire owned it. it was literally covered with california honeysuckle, and a view point of the town. this entire block was acquired by the late james g. fair, one of the famous mining men of nevada, and it still remains in the family estate. the hotel was in the course of construction at the time of the great fire of april - , , and the interior had to be rebuilt entirely as well as the stonework about the exterior openings. the next of the large homes was that of james c. flood, a handsome and imposing structure of connecticut brownstone. this building stood upon the eastern half of the block between mason and taylor streets and in order to build, a huge hill of rock as high as the building now is, had to be removed. this was in . after the fire of this building was remodeled and is now occupied by the pacific-union club. mason street had just been cut through this same hill. on the west half of the block stood the home of the late d. d. colton, who made his fortune out of construction contracts on the central pacific railroad. it was afterwards purchased by c. p. huntington, another of the famous railroad magnates. on the next corner stood the large frame mansion of charles crocker, one of the builders of the c. p. r. r., built at an expense of $ , , . his son william h. built himself a home on the far corner of the same block. this takes us to jones street. when the late charles crocker selected this site for his home there was one piece of property facing on sacramento street that he could not buy, so in order to get even with the owner, a mr. young, he had a tall spite fence built around the house. the owner lived there for a while, but being shut off as he was from the sunlight, had his house removed; still he would not sell and the fence stood there for years afterwards. on the south side of the street commencing at powell stood the mansion of ex-governor leland stanford. when stanford purchased the property there stood there a fine house built by the actress julia dean hayne, with an entrance at the corner. this house was removed to the corner of pine and hyde streets. the stone retaining wall on powell and pine streets, owing to a spring on the property, gave way and had to be taken down (at the corner) and rebuilt. at the corner it extends feet below the sidewalk and is feet thick and feet high. the ground was then terraced. the building cost in the neighborhood of $ , , . on the corner above, mark hopkins built his home. at his death it passed into the hands of a mr. searles who had married hopkins' widow and, not caring to live in california, he had it converted into an art gallery, and the beautiful conservatory into art rooms for the art association of the university of california, to whom he bequeathed the property. the building cost in the neighborhood of $ , , . on the next block, between mason and taylor streets, were the hamilton home, the home of ex-mayor e. b. pond and that of the tobins. while on the block from taylor to jones street stood the a. n. towne, h. h. sherwood and george whittell residences. just beyond jones street, on the same side, stood the home of e. j. (lucky) baldwin of race horse fame. in i moved to taylor street, between clay and washington, and resided there continuously until , a period of years. and i knew of stanford, hopkins, crocker and huntington, the quartet of railroad magnates, better than they knew of me. but what shall i say of them? they have all gone beyond the boundaries of human existence and their mansions, together with all the other homes on the hill, were burned in the fire of april - , . they were all men of master minds and are deserving the highest praise for their enterprise, determination and perseverance in the great work they undertook. it was not their money that did it, it was their heads. and there is where the great indebtedness of the state of california comes in to these men. going down the eastern slope on california, just below powell on the south side, at the corner of prospect place, stood a house once occupied by lieut. john charles fremont, while on the corner below stood the home of col. jonathan d. stevenson. this building was built in and had two tiers of verandas that extended entirely around the building. the colonel died at the age of but had not owned or lived there for many years. it had been converted into a hotel and known as the harvey house. across the street on the other corner stood the grace episcopal church. the crocker heirs, not desiring to rebuild on their property on california, between taylor and jones streets, bequeathed it to the episcopal diocese on which to build a new grace church. it is now in course of construction. on pine street, at the southwest corner of stockton, stood the wilson home. on the southeast corner of mason stood the home of j. d. oliver, while on the southwest corner stood the home of mr. fred mccrellish, the owner of the "alta california," while just beyond were the homes of woods, jarboe and harrison and others. on the next block was the old stow residence while across the street isaiah w. lees, chief of police, resided. he was the greatest detective this coast has ever had--his was instinct and intuition, and his records will always remain a lasting monument. on the northwest corner of jones stood the home of the late james g. fair, of mining fame, of nevada. going north on powell street, at no. , mr. chilion beach, the bookseller, lived, while next door, no. , mr. d. d. shattuck resided. this building was erected in --mr. shattuck came to california via the isthmus and resided here years. on the next block (same side) stood a little one-story house with a high basement in which j. d. spencer, a brother of spencer the sociologist, lived for many years. just beyond stood the old high school building. on the next block, at no. , resided for many years another of the old booksellers, mr. george b. hitchcock, proprietor of the "pioneer book store," opposite the "plaza." at the northwest corner of washington stood the first brick building built in san francisco. it was built in by john truebody, the brick being brought from new york. it was originally two stories high but upon the grading of the streets it was built another story downward to the new grade. he later added another story, the fourth, on top. even to the time of the fire ( ) you could see the various stairway landings on the washington street frontage. mr. truebody originally owned this entire block. the first church building in yerba buena (as san francisco was formerly called) was the first presbyterian church on the west side of powell near washington. it was built in of hand-hewn timbers from oregon. upon the erection of the first methodist church it was moved to the rear and used as a sunday school. john truebody constructed it. in this immediate neighborhood were many a frame building that had been brought around the horn "in the knocked down state." powell street, from clay to north beach, was graded in . it and stockton street to the east, from sacramento street north to green street, were lined with neat homes and was then considered the fashionable residence section of the city, while on powell street were three churches. the streets in those days were all planked. beyond mason streets ran the trail westward to the presidio, past scattered cottages, sheds, dairies and vegetable gardens. on the east side of stockton street, between sacramento and clay streets, stood the old pioche residence, wherein were given many lavish entertainments, for its owner was an epicure and hospitable to a degree. he was a heavy speculator and at one time possessed of much property. his death was a mystery and has never been solved. during the ' 's his home was used as the chinese consulate. on the west side of taylor street at the corner of sacramento street stood the home of capt. j. b. thomas, after occupied by addison e. head, while on the corner of clay i had my grocery business, living on the next block, between clay and washington, no. . win. t. coleman, the leader of the vigilance committee, lived on the corner of washington street; this house was built by w. f. walton, and occupied in turn by s. c. hastings, wm. t. coleman and d. m. delmas, all men of prominence, while on the next corner stood the home of my old friend, gross, who came across the plains with me in . in later days, mr. chilion beach resided there. on the east side at the southeast corner of washington, stood the j. b. haggin home, while on the northeast corner stood that of the beavers, and at the corner of jackson, the tevis.' in this neighborhood also lived ina d. coolbrith, whose home was the center of the literary genius of the state, amongst them being bret harte, joaquin miller, and charles warren stoddard. josiah stanford, a brother of leland stanford, lived on the south side of jackson street, just below the tevis home. here is as good a place as any to give my readers a short account of the clay street hill underground cable railroad, which operated on clay street from leavenworth to kearny streets, a distance of seven blocks, and at an elevation of feet above the starting point. the cable car was the invention of mr. a. s. hallidie, who organized the company which built the line. this was the first time that the application of an underground cable was ever used to move street cars, and on august , , the first run up the clay street hill from kearny to leavenworth street, was made, and by september st the road was in operation. it was a wonderful exhibition, and half the town was there to witness it. many were in doubt as to the success of the enterprise. the company required the property holders on the hill to subscribe and donate towards the expense, which they did. the writer owning some property there at that time, gave $ . to further the enterprise. this was in . an interested chinese watched the moving cars and remarked: "no pushee, no pullee, go like hellee." the california street railroad company used the same device. this line was operated along california street from kearny to fillmore and first operated april , . it was afterwards extended eastward to drumm and market streets and westward to central avenue. the sutter street r. r. co. was in operation january , , and the geary street line, february , . cable cars were also operated over sacramento and washington streets as well as over powell at later dates. [ ] a few words might be said concerning the principals of this trouble. king, whose name was james king (before coming to california he had added "of william" so as to distinguish himself from others of that name), came to california november th, , engaged in mining and mercantile pursuits and in december engaged in the banking business in san francisco. in he merged with adams & co. shortly afterwards they failed, and he lost everything he possessed. through the financial backing of his friends, he started the "daily evening bulletin," october th, , a small four-page sheet about x inches in size. he was fearless in his editorials, but always within the bounds of right and justice, and took a strong position against corruption of the city officials and their means of election. his paper grew in circulation and size, and soon outstripped all the other papers combined. november th, , the cora and richardson affair held the attention of the public, and king in his fearlessness inflamed the population into taking matters into their own hands after the courts had failed to convict. and by his so doing had aroused an enmity, and determination from the lawless element to stop his utterances, even at the cost of his life, so when he attacked in his paper, one james p. casey, a lawless character, gambler and ballot box manipulator and supervisor, as having served an eighteen-months sentence in sing sing, n. y., before coming to california, who also published a paper, "the sunday times," it brought matters to a crisis, for casey taking offense at this and other attacks on his ilk, shot king on the evening of may , . the shooting of king was the cause of the formation of the vigilance committee of and the direct means of cleaning the city of the corruptness that had had swing for so many years.--[editor.] [ ] two of the unused cartridges of mr. woolley's, at the end of the troublous time of the vigilance committee, are to be seen in the oakland public museum.--[editor.] [ ] a large number of the citizens of san francisco interested themselves toward caring and providing for the family of the deceased, mr. king, and through the efforts of mr. f. w. macondray and six others, collected nearly $ , . they had erected a monument in lone mountain cemetery, supported the family, and in the money which, had by judicious investment amounted to nearly $ , , about half of this fund, was turned over to the elder children, leaving $ , on deposit, but this, through the bank's failure, netted the family only $ , . [ ] the body of james king, of william, was buried in lone mountain cemetery, that of james p. casey in mission dolores cemetery, by the members of crescent engine company no. , of which he was foreman, while that of charles cora was delivered to belle cora and its final resting place is unknown to this day, though it has been stated that she had it buried in mission dolores cemetery.--[editor.] [ ] his body was interred in mission dolores cemetery.--[editor.] [ ] the name of this "betsy ross" has been lost, though mr. connell probably knew it at the time. the flag, except for the blue field, is badly faded.--[editor.] california sketches new series. by o. p. fitzgerald with an introduction by bishop george f. pierce. the bearded men in rude attire, with nerves of steel and hearts of fire, the women few but fair and sweet, like shadowy visions dim and fleet, again i see, again i hear, as down the past i dimly peer, and muse o'er buried joy and pain, and tread the hills of youth again. . a word. encores are usually anticlimaxes. i never did like them. yet here i am again before the public with another book of "california sketches." the kind treatment given to the former volume, of which six editions have been printed and sold; the expressed wishes of many friends who have said, give us another book; and my own impulse, have induced me to venture upon a second appearance. if much of the song is in the minor key, it had to be so: these sketches are from real life, and "all lives are tragedies." the author. nashville, september, . introduction. the first issue of the "california sketches" was very popular, deservedly so. the distinguished author has prepared a second series. in this fact the reading public will rejoice. in these hooks we have the romance and prestige of fiction; the thrill of incident and adventure; the wonderful phases of society in a new country, and under the pressure of strong and peculiar excitements; human character loose from the restraints of an old civilization--a settled order of things; individuality unwarped by imitation--free, varied, independent. the materials are rich, and they are embodied in a glowing narrative. the writer himself lived amid the scenes and the people he describes, and, as a citizen, a preacher, and an editor, was an important factor among the forces destined to mold the elements which were to be formulated in the politics of the state and the enterprises of the church. a close observer, gifted with a keen discrimination and retentive memory, a decided relish for the ludicrous and the sportive, and always ready to give a religions turn to thought and conversation, he is admirably adapted to portray and recite what he saw, heard, and felt. these sketches furnish good reading for anybody. for the young they are charming, full of entertainment, and not wanting in moral instruction. they will gratify the taste of those who love to read, and, what is more important, beget the appetite for books among the dull and indifferent. he who can stimulate children and young men and women to read renders a signal service to society at large. mental growth depends much upon reading, and the fertilization of the original soil by the habit wisely directed connects vitally with the outcome and harvest of the future. dr. fitzgerald is doing good service in the work already done, and i trust the patronage of the people will encourage him to give us another and another of the same sort. at my house we all read the "california sketches"--old and young--and long for more. g. f. pierce. contents. dick the diggers the california mad-house san quentin "corralled" the reblooming the emperor norton camilla cain lone mountain newton the california politician old man lowry suicide in california father fisher jack white the rabbi my mining speculation mike reese uncle nolan buffalo jones tod robinson ah lee the climate of california after the storm bishop kavanaugh in california sanders a day winter-blossomed a virginian in california at the end dick. dick was a californian. we made his acquaintance in sonora about a month before christmas, anno domini . this is the way it happened: at the request of a number of families, the lady who presided in the curious little parsonage near the church on the hill-side had started a school for little girls. the public schools might do for the boys, but were too mixed for their sisters--so they thought. boys could rough it --they were a rough set, anyway--but the girls must he raised according to the traditions of the old times and the old homes. that was the view taken of the matter then, and from that day to this the average california girl has been superior to the average california boy. the boy gets his bias from the street; the girl, from her mother at home. the boy plunges into the life that surges around him; the girl only feels the touch of its waves as they break upon the embankments of home. the boy gets more of the father; the girl gets more of the mother. this may explain their relative superiority. the school for girls was started on condition that it should be free, the proposed teacher refusing all compensation. that part of the arrangement was a failure, for at the end of the first month every little girl brought a handful of money, and laid it on the teacher's desk. it must have been a concerted matter. that quiet, unselfish woman had suddenly become a money-maker in spite of herself. (use was found for the coin in the course of events.) the school was opened with a psalm, a prayer, and a little song in which the sweet voices of the little jewish, spanish, german, irish, and american maidens united heartily. dear children! they are scattered now. some of them have died, and some of them have met with what is worse than death. there was one bright spanish girl, slender, graceful as a willow, with the fresh castilian blood mantling her cheeks, her bright eyes beaming with mischief and affection. she was a beautiful child, and her winning ways made her a pet in the little school. but surrounded as the bright, beautiful girl was, satan had a mortgage on her from her birth, and her fate was too dark and sad to be told in these pages. she inherited evil condition, and perhaps evil blood, and her evil life seemed to be inevitable. poor child of sin, whose very beauty was thy curse, let the curtain fall upon thy fate and name; we leave thee in the hands of the pitying christ, who hath said, "where little is given little will be required." little was given thee in the way of opportunity, for it was a mother's hand that bound thee with the chains of evil. among the children that came to that remarkable academy on the hill was little mary kinneth, a thin, delicate child, with mild blue eyes, flaxen hair, a peach complexion, and the blue veins on her temples that are so often the sign of delicacy of organization and the presage of early death. mike kinneth,--her father, was a drinking irishman, a good-hearted fellow when sober, but pugnacious and disposed to beat his wife when drunk. the poor woman came over to see me one day. she had been crying, and there was an ugly bruise on her cheek. "your riverence will excuse me," she said, curtseying, "but i wish you would come over and spake a word to me husband. mike's a kind, good craythur except when he is dhrinking, but then he is the very satan himself." "did he give you that bruise on your face, mrs. kinneth?" "yis; he came home last night mad with the whisky, and was breaking ivery thing in the house. i tried to stop him, and thin he bate me--o! he never did that before! my heart is broke!" here the poor woman broke down and cried, hiding her face in her apron. "little mary was asleep, and she waked up frightened and crying to see her father in such a way. seeing the child seemed to sober him a little, and he stumbled on to the bed, and fell asleep. he was always kind to the child, dhrunk or sober. and there is a good heart in him if he will only stay away from the dhrink." "would he let me talk to him?" "yis; we belong to the old church, but there is no priest here now, and the kindness your lady has shown to little mary has softened his heart to ye both. and i think he feels a little sick and ashamed this mornin', and he will listen to kind words now if iver." i went to see mike, and found him half-sick and in a penitent mood. he called me "father fitzgerald," and treated me with the utmost politeness and deference. i talked to him about little mary, and his warm irish heart opened to me at once. "she is a good child, your riverence, and shame on the father that would hurt or disgrace her!" the tears stood in mike's eyes as he spoke the words. "all the trouble comes from the whisky. why not give it up?" "by the help of god i will!" said mike, grasping my hand with energy. and he did. i confess that the result of my visit exceeded my hopes. mike kept away from the saloons, worked steadily, little mary had no lack of new shoes and neat frocks, and the kinneth family were happy in a humble way. mike always seemed glad to see me, and greeted me warmly. one morning about the last of november there was a knock at the door of the little parsonage. opening the door, there stood mrs. kinneth with a turkey under her arm. "christmas will soon be coming, and i've brought ye a turkey for your kindness to little mary and your good talk to mike. he has not touched a dhrop since the blissed day ye spake to him. will ye take the turkey, and my thanks wid it?" the turkey was politely and smilingly accepted, and mrs. kinneth went away looking mightily pleased. i extemporized a little coop for our turkey. having but little mechanical ingenuity, it was a difficult job, but it resulted more satisfactorily than did my attempt to make a door for the miniature kitchen attached to the parsonage. my object was to nail some cross-pieces on some plain boards, hang it on hinges, and fasten it on the inside by a leather strap attached to a nail. the model in my mind was, as the reader sees, of the most simple and primitive pattern. i spent all my leisure time for a week at work on that door. i spoiled the lumber, i blistered my hands, i broke several dollars' worth of carpenter's tools, which i had to pay, and--then i hired a man to make that door! this was my last effort in that line of things, excepting the turkey-coop, which was the very last. it lasted four days, at the end of which time it just gave way all over, and caved in. fortunately, it was no longer needed. our turkey would not leave us. the parsonage fare suited him, and he staid, and throve, and made friends. we named him dick. he is the hero of this sketch. dick was intelligent, sociable, and had a good appetite. he would eat any thing, from a crust of bread to the pieces of candy that the schoolgirls would give him as they passed. he became as gentle as a dog, and would answer to his name. he had the freedom of the town, and went where he pleased, returning at meal-times, and at night to roost on the western end of the kitchen-roof. he would eat from our hands, looking at us with a sort of human expression in his shiny eyes. if he were a hundred yards away, all we had to do was to go to the door and call out, "dick!" "dick!" once or twice, and here he would come, stretching his long legs, and saying, "oot," "oot," "oot" (is that the way to spell it?). he got to like going about with me. he would go with me to the post-office, to the market, and sometimes he would accompany me in a pastoral visit. dick was well known and popular. even the bad boys of the town did not throw stones at him. his ruling passion was the love of eating. he ate between meals. he ate all that was offered to him. dick was a pampered turkey, and made the most of his good luck and popularity. he was never in low spirits, and never disturbed except when a dog came about him. he disliked dogs, and seemed to distrust them. the days rolled by, and dick was fat and happy. it was the day before christmas. we had asked two bachelors to take christmas-dinner with us, having room and chairs for just two more persons. (one of our four chairs was called a stool--it had a bottom and three legs, one of which was a little shaky, and no back.) there was a constraint upon us both all day. i knew what was the matter, but said nothing. about four o'clock in the afternoon dick's mistress sat down by me, and, after a pause, remarked: "do you know that tomorrow is christmas-day?" "yes, i know it." another pause. i had nothing to say just then. "well, if--if--if any thing is to be done about that turkey, it is time it were done." "do you mean dick?" "yes," with a little quiver in her voice. "i understand you--you mean to kill him--poor dick! the only pet we ever had." she broke right down at this, and began to cry. "what is the matter here?" said our kind, energetic neighbor, mrs. t--, who came in to pay us one of her informal visits. she was from philadelphia, and, though a gifted woman, with a wide range of reading and observation of human life, was not a sentimentalist. she laughed at the weeping mistress of the parsonage, and, going to the back-door, she called out: "dick!" "dick!" dick, who was taking the air high up on the hillside, came at the call, making long strides, and sounding his "oot," "oot," "oot," which was the formula by which he expressed all his emotions, varying only the tone. dick, as he stood with outstretched neck and a look of expectation in his honest eyes, was scooped up by our neighbor, and carried off down the hill in the most summary manner. in about an hour dick was brought back. he was dressed. he was also stuffed. the diggers. the digger indian holds a low place in the scale of humanity. he is not intelligent; he is not handsome; he is not very brave. he stands near the foot of his class, and i fear he is not likely to go up any higher. it is more likely that the places that know him now will soon know him no more, for the reason that he seems readier to adopt the bad white man's whisky and diseases than the good white man's morals and religion. ethnologically he has given rise to much conflicting speculation, with which i will not trouble the gentle reader. he has been in california a long time, and he does not know that he was ever anywhere else. his pedigree does not trouble him; he is more concerned about getting something to eat. it is not because he is an agriculturist that he is called a digger, but because he grabbles for wild roots, and has a general fondness for dirt. i said he was not handsome, and when we consider his rusty, dark-brown color, his heavy features, fishy black eyes, coarse black hair, and clumsy gait, nobody will dispute the statement. but one digger is uglier than another, and an old squaw caps the climax. the first digger i ever saw was the best-looking. he had picked up a little english, and loafed around the mining-camps picking up a meal where he could get it. he called himself "captain charley," and, like a true native american, was proud of his title. if it was self-assumed, he was still following the precedent set by a vast host of captains, majors, colonels, and generals, who never wore a uniform or hurt anybody. he made his appearance at the little parsonage on the hill-side in sonora one day, and, thrusting his bare head into the door, he said: "me cappin charley," tapping his chest complacently as he spoke. returning his salutation, i waited for him to speak again. "you got grub--coche carne?" he asked, mixing his spanish and english. some food was given him, which he snatched rather eagerly, and began to eat at once. it was, evident that captain charley had not breakfasted that morning. he was a hungry indian, and when he got through his meal there was no reserve of rations in the unique repository of dishes and food which has been mentioned heretofore in these sketches. peering about the premises, captain charley made a discovery. the modest little parsonage stood on a steep incline, the upper side resting on the red gravelly earth, while the lower side was raised three or four feet from the ground. the vacant space underneath had been used by our several bachelor predecessors as a receptacle for cast-off clothing. malone, lockley, and evans, had thus disposed of their discarded apparel, and drury bond and one or two other miners had also added to the treasures that caught the eye of the inquisitive digger. it was a museum of sartorial curiosities--seedy and ripped broadcloth coats, vests, and pants, flannel mining-shirts of gay colors and of different degrees of wear and tear, linen shirts that looked like battle-flags that had been through the war, and old shoes and boots of all sorts, from the high rubber water-proofs used by miners to the ragged slippers that had adorned the feet of the lonely single parsons whose names are written above. "me take um?" asked captain charley, pointing to the treasure he had discovered. leave was given, and captain charley lost no time in taking possession of the coveted goods. he chuckled to himself as one article after another was drawn forth from the pile which seemed to be almost inexhaustible. when he had gotten all out and piled up together, it was a rare-looking sight. "mucho bueno!" exclaimed captain charley, as he proceeded to array himself in a pair of trousers. then a shirt, then a vest, and then a coat, were put on. and then another, and another, and yet another suit was donned in the same order. he was fast becoming a "big indian" indeed. we looked on and smiled, sympathizing with the evident delight of our visitor in his superabundant wardrobe. he was in full-dress, and enjoyed it. but he made a failure at one point--his feet were too large, or were not the right shape, for white men's boots or shoes. he tried several pairs, but his huge flat foot would not enter them, and finally he threw down the last one tried by him with a spanish exclamation not fit to be printed in these pages. that language is a musical one, but its oaths are very harsh in sound. a battered "stove-pipe" hat was found among the spoils turned over to captain chancy. placing it on his head jauntily, he turned to us, saying, adios, and went strutting down the street, the picture of gratified vanity. his appearance on washington street, the main thoroughfare of the place, thus gorgeously and abundantly arrayed, created a sensation. it was as good as a "show" to the jolly miners, always ready to be amused. captain charley was known to most of them, and they had a kindly feeling for the good-natured "fool injun," as one of them called him in my hearing. the next digger i noticed was of the gentler (but in this case not lovelier) sex. she was an old squaw, who was in mourning. the sign of her grief was the black adobe mud spread over her face. she sat all day motionless and speechless, gazing up into the sky. her grief was caused by the death of a child, and her sorrowful look showed that she had a mother's heart. poor, degraded creature! what were her thoughts as she sat there looking so pitifully up into the silent, far-off heavens? all the livelong day she gazed thus fixedly into the sky, taking no notice of the passersby, neither speaking, eating, nor drinking. it was a custom of the tribe, but its peculiar significance is unknown to me. it was a great night at an adjoining camp when the old chief died. it was made the occasion of a fearful orgy. dry wood and brush were gathered into a huge pile, the body of the dead chief was placed upon it, and the mass set on fire. as the flames blazed upward with a roar, the indians, several hundred in number, broke forth into wild wailings and howlings, the shrill soprano of the women rising high above the din, as they marched around the burning pyre. fresh fuel was supplied from time to time, and all night long the flames lighted up the surrounding hills which echoed with the shouts and howls of the savages. it was a touch of pandemonium. at dawn there was nothing left of the dead chief but ashes. the mourners took up their line of march toward the stanislaus river, the squaws bearing their papooses on their backs, the "bucks" leading the way. the digger believes in a future life, and in future rewards and punishments. good indians and bad indians are subjected to the same ordeal at death. each one is rewarded according to his deeds. the disembodied soul comes to a wide, turbid river, whose angry waters rush on to an unknown destination, roaring and foaming. from high banks on either side of the stream is stretched a pole smooth and small, over which he is required to walk. upon the result of this post-mortem blondinizing his fate depends. if he was in life a very good indian he goes over safely, and finds on the other side a paradise, where the skies are cloudless, the air balmy, the flowers brilliant in color and sweet in perfume, the springs many and cool, and the deer plentiful and fat. in this fair clime there are no bad indians, no briers, no snakes, no grizzly bears. such is the paradise of good diggers. the indian who was in life a mixed character, not all good or bad, but made up of both, starts across the fateful river, gets on very well until he reaches about half-way over, when his head becomes dizzy, and he tumbles into the boiling flood below. he swims for his life. (every indian on earth can swim, and he does not forget the art in the world of spirits.) buffeting the waters, he is carried swiftly down the rushing current, and at last makes the shore, to find a country which, like his former life, is a mixture of good and bad. some days are fair, and others are rainy and chilly; flowers and brambles grow together; there are some springs of water, but they are few, and not all cool and sweet; the deer are few, and shy, and lean, and grizzly bears roam the hills and valleys. this is the limbo of the moderately-wicked digger. the very bad indian, placing his feet upon the attenuated bridge of doom, makes a few steps forward, stumbles, falls into the whirling waters below, and is swept downward with fearful velocity. at last, with desperate struggles he half swims, and is half washed ashore on the same side from which he started, to find a dreary land where the sun never shines, and the cold rains always pour down from the dark skies, where the water is brackish and foul, where no flowers ever bloom, where leagues may be traversed without seeing a deer, and grizzly bears abound. this is the hell of very bad indians--and a very had one it is. the worst indians of all, at death, are transformed into grizzly bears. the digger has a good appetite, and he is not particular about his eating. he likes grasshoppers, clover, acorns, roots, and fish. the flesh of a dead mule, horse, cow, or hog, does not come amiss to him--i mean the flesh of such as die natural deaths. he eats what he can get, and all he can get. in the grasshopper season he is fat and flourishing. in the suburbs of sonora i came one day upon a lot of squaws, who were engaged in catching grasshoppers. stretched along in line, armed with thick branches of pine, they threshed the ground in front of them as they advanced, driving the grasshoppers before them in constantly increasing numbers, until the air was thick with the flying insects. their course was directed to a deep gully, or gulch, into which they fell exhausted. it was astonishing to see with what dexterity the squaws would gather them up and thrust them into a sort of covered basket; made of willow-twigs or tule-grass, while the insects would be trying to escape; but would fall back unable to rise above the sides of the gulch in which they had been entrapped. the grasshoppers are dried, or cured, for winter use. a white man who had tried them told me they were pleasant eating, having a flavor very similar to that of a good shrimp. (i was content to take his word for it.) when bishop soule was in california, in , he paid a visit to a digger campoody (or village) in the calaveras hills. he was profoundly interested, and expressed an ardent desire to be instrumental in the conversion of one of these poor kin. it was yet early in the morning when the bishop and his party arrived, and the diggers were not astir, save here and there a squaw, in primitive array, who slouched lazily toward a spring of water hard by. but soon the arrival of the visitors was made known, and the bucks, squaws, and papooses, swarmed forth. they cast curious looks upon the whole party, but were specially struck with the majestic bearing of the bishop, as were the passing crowds in london, who stopped in the streets to gaze with admiration upon the great american preacher. the digger chief did not conceal his delight. after looking upon the bishop fixedly for some moments, he went up to him, and tapping first his own chest and then the bishop's, he said: "me big man--you big man!" it was his opinion that two great men had met, and that the occasion was a grand one. moralizers to the contrary notwithstanding, greatness is not always lacking in self-consciousness. "i would like to go into one of their wigwams, or huts, and see how they really live," said the bishop. "you had better drop that idea," said the guide, a white man who knew more about digger indians than was good for his reputation and morals, but who was a good-hearted fellow, always ready to do a friendly turn, and with plenty of time on his hands to do it. the genius born to live without work will make his way by his wits, whether it be in the lobby at washington city, or as a hanger-on at a digger camp. the bishop insisted on going inside the chief's wigwam, which was a conical structure of long tule-grass, air-tight and weather-proof, with an aperture in front just large enough for a man's body in a crawling attitude. sacrificing his dignity, the bishop went down on all-fours, and then a degree lower, and, following the chief; crawled in. the air was foul, the smells were strong, and the light was dim. the chief proceeded to tender to his distinguished guest the hospitalities of the establishment, by offering to share his breakfast with him. the bill of fare was grasshoppers, with acorns as a side-dish. the bishop maintained his dignity as he squatted there in the dirt--his dignity was equal to any test. he declined the grasshoppers tendered him by the chief, pleading that he had already breakfasted, but watched with peculiar sensations the movements of his host, as handful after handful of the crisp and juicy gryllus vulgaris were crammed into his capacious mouth, and swallowed. what he saw and smelt, and the absence of fresh air, began to tell upon the bishop--he became sick and pale, while a gentle perspiration, like unto that felt in the beginning of seasickness, beaded his noble forehead. with slow dignity, but marked emphasis, he spoke: "brother bristow, i propose that we retire." they retired, and there is no record that bishop soule ever expressed the least desire to repeat his visit to the interior of a digger indian's abode. the whites had many difficulties with the diggers in the early days. in most cases i think the whites were chiefly to blame. it is very hard for the strong to be just to the weak. the weakest creature, pressed hard, will strike back. white women and children were massacred in retaliation for outrages committed upon the ignorant indians by white outlaws. then there would be a sweeping destruction of indians by the excited whites, who in those days made rather light of indian shooting. the shooting of a "buck" was about the same thing, whether it was a male digger or a deer. "there is not much fight in a digger unless he's got the dead-wood on you, and then he'll make it rough for you. but these injuns are of no use, and i'd about as soon shoot one of them as a coyote" (ki-o-te). the speaker was a very red-faced, sandy-haired man, with blood-shot blue eyes, whom i met on his return to the humboldt country after a visit to san francisco. "did you ever shoot an indian?" i asked. "i first went up into the eel river country in ' ," he answered. "they give us a lot of trouble in them days. they would steal cattle, and our boys would shoot. but we've never had much difficulty with them since the big fight we had with them in . a good deal of devilment had been goin' on all roun', and some had been killed on both sides. the injuns killed two women on a ranch in the valley, and then we set in just to wipe 'em out. their camp was in a bend of the river, near the head of the valley, with a deep slough on the right flank. there was about sixty of us, and dave was our captain. he was a hard rider, a dead shot, and not very tender-hearted. the boys sorter liked him, but kep' a sharp eye on him, knowin' he was so quick and handy with a pistol. our plan was to git to their camp and fall on em at daybreak, but the sun was risin' just as we come in sight of it. a dog barked, and dave sung out: "'out with your pistols! pitch in, and give 'em the hot lead!' "in we galloped at full speed, and as the injuns come out to see what was up, we let 'em have it. we shot forty bucks--about a dozen got away by swimmin' the river." "were any of the women killed?" "a few were knocked over. you can't be particular when you are in a hurry; and a squaw, when her blood is up, will fight equal to a buck." the fellow spoke with evident pride, feeling that he was detailing a heroic affair, having no idea that he had done any thing wrong in merely killing "bucks." i noticed that this sane man was very kind to an old lady who took the stage for bloomfield--helping her into the vehicle, and looking after her baggage. when we parted, i did not care to take the hand that had held a pistol that morning when the digger camp was "wiped out." the scattered remnants of the digger tribes were gathered into a reservation in round valley, mendocino county, north of the bay of san francisco, and were there taught a mild form of agricultural life, and put under the care of government agents, contractors, and soldiers, with about the usual results. one agent, who was also a preacher, took several hundred of them into the christian church. they seemed to have mastered the leading facts of the gospel, and attained considerable proficiency in the singing of hymns. altogether, the result of this effort at their conversion showed that they were human beings, and as such could be made recipients of the truth and grace of god, who is the father of all the families of the earth. their spiritual guide told me he had to make one compromise with them--they would dance. extremes meet--the fashionable white christians of our gay capitals and the tawny digger exhibit the same weakness for the fascinating exercise that cost john the baptist his head. there is one thing a digger cannot bear, and that is the comforts and luxuries of civilized life. a number of my friends, who had taken digger children to raise, found that as they approached maturity they fell into a decline and died, in most cases of some pulmonary affection. the only way to save them was to let them rough it, avoiding warm bed-rooms and too much clothing. a digger girl belonged to my church at santa rosa, and was a gentle, kind-hearted, grateful creature. she was a domestic in the family of colonel h--. in that pleasant christian household she developed into a pretty fair specimen of brunette young womanhood, but to the last she had an aversion to wearing shoes. the digger seems to be doomed. civilization kills him; and if he sticks to his savagery, he will go down before the bullets, whisky, and vices of his white fellow-sinners. the california mad-house. on my first visit to the state insane asylum, at stockton, i was struck by the beauty of a boy of some seven or eight years, who was moving about the grounds clad in a strait-jacket. in reply to my inquiries, the resident physician told me his history: "about a year ago he was on his way to california with the family to which he belonged. he was a general pet among the passengers on the steamer. handsome, confiding, and overflowing with boyish spirits, everybody had a smile and a kind word for the winning little fellow. even the rough sailors would pause a moment to pat his curly head as they passed. one day a sailor, yielding to a playful impulse in passing, caught up the boy in his arms, crying: "'i am going to throw you into the sea!' "the child gave one scream of terror, and went into convulsions. when the paroxysm subsided, he opened his eyes and gazed around with a vacant expression. his mother, who bent over him with a pale face, noticed the look, and almost screamed: "'tommy, here is your mother--don't you know me?' "the child gave no sign of recognition. he never knew his poor mother again. he was literally frightened out of his senses. the mother's anguish was terrible. the remorse of the sailor for his thoughtless freak was so great that it in some degree disarmed the indignation of the passengers and crew. the child had learned to read, and had made rapid progress in the studies suited to his age, but all was swept away by the cruel blow. he was unable to utter a word intelligently. since he has been here, there have been signs of returning mental consciousness, and we have begun with him as with an infant. he knows and can call his own name, and is now learning the alphabet." "how is his health?" "his health is pretty good, except that he has occasional convulsive attacks that can only be controlled by the use of powerful opiates." i was glad to learn, on a visit made two years later, that the unfortunate boy had died. this child was murdered by a fool. the fools are always murdering children, though the work is not always done as effectually as in this case. they cripple and half kill them by terror. there are many who will read this sketch who will carry to the grave, and into the world of spirits, natures out of which half the sweetness, and brightness, and beauty has been crushed by ignorance or brutality. in most cases it is ignorance. the hand that should guide, smites; the voice that should soothe, jars the sensitive chords that are untuned forever. he who thoughtlessly excites terror in a child's heart is unconsciously doing the devil's work; he that does it consciously is a devil. "there is a lady here whom i wish you would talk to. she belongs to one of the most respectable families in san francisco, is cultivated, refined, and has been the center of a large and loving circle. her monomania is spiritual despair. she thinks she has committed the unpardonable sin. there she is now. i will introduce you to her. talk with her, and comfort her if you can." she was a tall, well-formed woman in black, with all the marks of refinement in her dress and bearing. she was walking the floor to and fro with rapid steps, wringing her hands, and moaning piteously. indescribable anguish was in her face--it was a hopeless face. it haunted my thoughts for many days, and it is vividly before me as i write now. the kind physician introduced me, and left the apartment. there is a sacredness about such an interview that inclines me to veil its details. "i am willing to talk with you, sir, and appreciate your motive, but i understand my situation. i have committed the unpardonable sin, and i know there is no hope for me." with the earnestness excited by intense sympathy, i combated her conclusion, and felt certain that i could make her see and feel that she had given way to an illusion. she listened respectfully to all i had to say, and then said again: "i know my situation. i denied my saviour after all his goodness to me, and he has left me forever." there was the frozen calmness of utter despair in look and tone. i left her as i found her. "i will introduce you to another woman, the opposite of the poor lady you have just seen. she thinks she is a queen, and is perfectly harmless. you must be careful to humor her illusion. there she is--let me present you." she was a woman of immense size, enormously fat, with broad red face, and a self-satisfied smirk, dressed in some sort of flaming scarlet stuff, profusely tinseled all over, making a gorgeously ridiculous effect. she received me with a mixture of mock dignity and smiling condescension, and surveying herself admiringly, she asked: "how do you like my dress?" it was not the first time that royalty had shown itself not above the little weaknesses of human nature. on being told that her apparel was indeed magnificent, she was much pleased, and drew herself up proudly, and was a picture of ecstatic vanity. are the real queens as happy? when they lay aside their royal robes for their grave clothes, will not the pageantry which was the glory of their lives seem as vain as that of this tinseled queen of the mad-house? where is happiness, after all? is it in the circumstances, the external conditions? or, is it in the mind? such were the thoughts passing through my mind, when a man approached with a violin. every eye brightened, and the queen seemed to thrill with pleasure in every nerve. "this is the only way we can get some of them to take any exercise. the music rouses them, and they will dance as long as they are permitted to do so." the fiddler struck up a lively tune, and the queen, with marvelous lightness of step and ogling glances, ambled up to a tall, raw-boned methodist preacher, who had come with me, and invited him to dance with her. the poor parson seemed sadly embarrassed, as her manner was very pressing, but he awkwardly and confusedly declined, amid the titters of all present. it was a singular spectacle, that dance of the mad-women. the most striking figure on the floor was the queen. her great size, her brilliant apparel, her astonishing agility, the perfect time she kept, the bows, the smiles and blandishments, she bestowed on an imaginary partner, were indescribably ludicrous. now and then, in her evolutions, she would cast a momentary reproachful glance at the ungallant clergyman who had refused to dance with feminine royalty, and who stood looking on with a sheepish expression of face. he was a kentuckian, and lack of gallantry is not a kentucky trait. during the session of the annual conference at stockton, in or , the resident physician invited me to preach to the inmates of the asylum on sunday afternoon. the novelty of the service, which was announced in the daily papers, attracted a large number of visitors, among them the greater part of the preachers. the day was one of those bright, clear, beautiful october days, peculiar to california, that make you think of heaven. i stood on the steps, and the hundreds of men and women stood below me, with their upturned faces. among them were old men crushed by sorrow, and old men ruined by vice; aged women with faces that seemed to plead for pity, women that made you shrink from their unwomanly gaze; lion-like young men, made for heroes but caught in the devil's trap and changed into beasts; and boys whose looks showed that sin had already stamped them with its foul insignia, and burned into their souls the shame which is to be one of the elements of its eternal punishment. a less impressible man than i would have felt moved at the sight of that throng of bruised and broken creatures. a hymn was read, and when burnet, kelsay, neal, and others of the preachers, struck up an old tune, voice after voice joined in the melody until it swelled into a mighty volume of sacred song. i noticed that the faces of many were wet with tears, and there was an indescribable pathos in their voices. the pitying god, amid the rapturous hallelujahs of the heavenly hosts, bent to listen to the music of these broken harps. this text was announced, my peace i give unto you; and, the sermon began. among those standing nearest to me was "old kelley," a noted patient whose monomania was the notion that he was a millionaire, and who spent most of his time in drawing checks on imaginary deposits for vast sums of money. i held one of his checks for a round million, but it has never yet been cashed. the old man pressed up close to me, seeming to feel that the success of the service somehow depended on him. i had not more than fairly begun my discourse, when he broke in: "that's daniel webster!" i don't mind a judicious "amen," but this put me out a little. i resumed my remarks, and was getting another good start, when he again broke in enthusiastically: "henry clay!" the preachers standing around me smiled--i think i heard one or two of them titter. i could not take my eyes from kelley, who stood with open mouth and beaming countenance, waiting for me to go on. he held me with an evil fascination. i did go on in a louder voice, and in a sort of desperation; but again my delighted hearer exclaimed: "calhoun!" "old kelley" spoiled that sermon, though he meant kindly. he died not long afterward, gloating over his fancied millions to the last. "if you have steady nerves, come with me and i will show you the worst case we have--a woman half tigress, and half devil." ascending a stairway, i was led to an angle of the building assigned to the patients whose violence required them to be kept in close confinement. "hark! don't you hear her? she is in one of her paroxysms now." the sounds that issued from one of the cells were like nothing i had ever heard before. they were a series of unearthly, fiendish shrieks, intermingled with furious imprecations, as of a lost spirit in an ecstasy of rage and fear. the face that glared upon me through the iron grating was hideous, horrible. it was that of a woman, or of what had been a woman, but was now a wreck out of which evil passion had stamped all that was womanly or human. i involuntarily shrunk back as i met the glare of those fiery eyes, and caught the sound of words that made me shudder. i never suspected myself of being a coward, but i felt glad that the iron bars of the cell against which she dashed herself were strong. i had read of furies--one was now before me. the bloated, gin-inflamed face, the fiery-red, wicked eyes, the swinish chin, the tangled coarse hair falling around her like writhing snakes, the tiger-like clutch of her dirty fingers, the horrible words--the picture was sickening, disgust for the time almost, extinguishing pity. "she was the keeper of a beer-saloon in san francisco, and led a life of drunkenness and licentiousness until she broke down, and she was brought here." "is there any hope of her restoration?" "i fear not--nothing short of a miracle can, retune an instrument so fearfully broken and jangled." i thought of her out of whom were cast the seven devils, and of him who came to seek and to save the lost, and resisting the impulse that prompted me to hurry away from the sight and hearing of this lost woman, i tried to talk with her, but had to retire at last amid a volley of such language as i hope never to hear from a woman's lips again. "listen! did you ever hear a sweeter voice than that?" i had heard the voice before, and thrilled under its power. it was a female voice of wonderful richness and volume, with a touch of something in it that moved you strangely--a sort of intensity that set your pulses to beating faster, while it entranced you. the whole of the spacious grounds were flooded with the melody, and the passing teamsters on the public highway would pause and listen with wonder and delight. the singer was a fair young girl, with dark auburn hair, large brown eyes, that were at times dreamy and sad, and then again lit up with excitement, as her moods changed from sad to gay. "she will sit silent for hours gazing listlessly out of the window, and then all at once break forth into a burst of song so sweet and thrilling that the other patients gather near her and listen in rapt silence and delight. sometimes at a dead hour of the night her voice is heard, and then it seems that she is under a special afflatus--she seems to be inspired by the very soul of music, and her songs, wild and sad, wailing and rollicking, by turns, but all exquisitely sweet, fill the long night-hours with their melody." the shock caused by the sudden death of her betrothed lover overthrew her reason, and blighted her life. by the mercy of god, the love of music and the gift of song survived the wreck of love and of reason. this girl's voice, pealing forth upon the still summer evening air, is mingled with my last recollection of stockton and its refuge for the doubly miserable who are doomed to death in life. san quentin. "i want you to go with me over to san quentin next thursday, and preach a thanksgiving-sermon to the poor fellows in the state-prison." on the appointed morning, i met our party at the vallejo-street wharf, and we were soon steaming on our way. passing under the guns of fort alcatraz, past angel island--why so called i know not, as in early days it was inhabited not by angels but goats only--all of us felt the exhilaration of the california sunshine, and the bracing november air, as we stood upon the guards, watching the play of the lazy-looking porpoises, that seemed to roll along, keeping up with the swift motion of the boat in such a leisurely way. the porpoise is a deceiver. as he rolls up to the surface of the water, in his lumbering way, he looks as if he were a huge lump of unwieldy awkwardness, floating at random and almost helpless; but when you come to know him better, you find that he is a marvel of muscular power and swiftness. i have seen a "school" of porpoises in the pacific swimming for hours alongside one of our fleetest ocean-steamers, darting a few yards ahead now and then, as if by mere volition, cutting their way through the water with the directness of an arrow. the porpoise is playful at times, and his favorite game is a sort of leap-frog. a score or more of the creatures, seemingly full of fun and excitement, will chase one another at full speed, throwing themselves from the water and turning somersaults in the air, the water boiling with the agitation, and their huge bodies flashing in the light. you might almost imagine that they had found something in the sea that had made them drunk, or that they had inhaled some sort of piscatorial anaesthetic. but here we are at our destination. the bell rings, we round to, and land. at san quentin nature is at her best, and man at his worst. against the rocky shore the waters of the bay break in gentle splashings when the winds are quiet. when the gales from the southwest sweep through the golden gate, and set the white caps to dancing to their wild music, the waves rise high, and dash upon the dripping stones with a hoarse roar, as of anger. beginning a few hundreds of yards from the water's edge, the hills slope up, and up, and up, until they touch the base of tamalpais, on whose dark and rugged summit, four thousand feet above the sea that laves his feet on the west, the rays of the morning sun fall with transfiguring, glory while yet the valley below lies in shadow. on this lofty pinnacle linger the last rays of the setting sun, as it drops into the bosom of the pacific. in stormy weather, the mist and clouds roll in from the ocean, and gather in dark masses around his awful head, as if the sea-gods had risen from their homes in the deep, and were holding a council of war amid the battle of the elements; at other times, after calm, bright days, the thin, soft white clouds that hang about his crest deepen into crimson and gold, and the mountaintop looks as if the angels of god had come down to encamp, and pitched here their pavilions of glory. this is nature at san quentin, and this is tamalpais as i have looked upon it many a morning and many an evening from my window above the sea at north beach. the gate is opened for us, and we enter the prison-walls. it is a holiday, and the day is fair and balmy; but the chill and sadness cannot be shaken off, as we look around us. the sunshine seems almost to be a mockery in this place where fellow-men are caged and guarded like wild beasts, and skulk about with shaved heads, clad in the striped uniform of infamy. merciful god! is this what thy creature man was made for? how long, how long? seated upon the platform with the prison officials and visitors, i watched my strange auditors as they came in. there were one thousand of them. their faces were a curious study. most of them were bad faces. beast and devil were printed on them. thick necks, heavy back-heads, and low, square foreheads, were the prevalent types. the least repulsive were those who looked as if they were all animal, creatures of instinct and appetite, good-natured and stupid; the most repulsive were those whose eyes had a gleam of mingled sensuality and ferocity. but some of these faces that met my gaze were startling--they seemed so out of place. one old man with gray hair, pale, sad face, and clear blue eyes, might have passed, in other garb and in other company, for an honored member of the society of friends. he had killed a man in a mountain county. if he was indeed a murderer at heart, nature had given him the wrong imprint. my attention was struck by a smooth-faced, handsome young fellow, scarcely of age, who looked as little like a convict as anybody on that platform. he was in for burglary, and had a very bad record. some came in half laughing, as if they thought the whole affair more a joke than anything else. the mexicans, of whom there was quite a number, were sullen and scowling. there is gloom in the spanish blood. the irrepressible good nature of several ruddy-faced irishmen broke out in sly merriment. as the service began, the discipline of the prison showed itself in the quiet that instantly prevailed; but only a few, who joined in the singing, seemed to feel the slightest interest in it. their eyes were wandering, and their faces were vacant. they had the look of men who had come to be talked at and patronized, and who were used to it. the prayer that was offered was not calculated to banish such a feeling --it was dry and cold. i stood up to begin the sermon. never before had i realized so folly that god's message was to lost men, and for lost men. a mighty tide of pity rushed in upon my soul as i looked down into the faces of my hearers. my eyes filled, and my heart melted within me. i could not speak until after a pause, and only then by great effort. there was a deep silence, and every face was lifted to mine as i announced the text. god had touched my heart and theirs at the start. i read the words slowly: god hath not appointed us to wrath, but to obtain salvation by our lord jesus christ. then i said: "my fellow-men, i come to you today with a message from my father, and your father in heaven. it is a message of hope. god help me to deliver it as i ought! god help you to hear it as you ought! i will not insult you by saying that because you have an extra dinner, a few hours respite from your toil, and a little fresh air and sunshine, you ought to have a joyful thanksgiving today. if i should talk thus, you would be ready to ask me how i would like to change places with you. you would despise me, and i would despise myself, for indulging in such cant. your lot is a hard one. the battle of life has gone against you--whether by your own fault or by hard fortune, it matters not, so far as the fact is concerned; this thanksgiving-day finds you locked in here, with broken lives, and wearing the badge of crime. god alone knows the secrets of each throbbing heart before me, and how it is that you have come to this. fellow-men, children of my father in heaven, putting myself for the moment in your place, the bitterness of your lot is real and terrible to me. for some of you there is no happier prospect for this life than to toil within these walls by day, and sleep in yonder cells by night, through the weary, slow-dragging years, and then to die, with only the hands of hired attendants to wipe the death-sweat from your brows; and then to be put in a convict's coffin, and taken up on the hill yonder, and laid in a lonely grave. my god! this is terrible!" an unexpected dramatic effect followed these words. the heads of many of the convicts fell forward on their breasts, as if struck with sudden paralysis. they were the men who were in for life, and the horror of it overcame them. the silence was broken by sobbings all over the room. the officers and visitors on the platform were weeping. the angel of pity hovered over, the place, and the glow of human sympathy had melted those stony hearts. a thousand strong men were thrilled with the touch of sympathy, and once more the sacred fountain of tears was unsealed. these convicts were men, after all, and deep down under the rubbish of their natures there was still burning the spark of a humanity not yet extinct. it was wonderful to see the softened expression of their faces. yes, they were men, after all, responding to the voice of sympathy, which had been but too strange to many of them all their evil lives. many of them had inherited hard conditions; they were literally conceived in sin and born in iniquity; they grew up in the midst of vice. for them pure and holy lives were a moral impossibility. evil with them was hereditary, organic, and the result of association; it poisoned their blood at the start, and stamped itself on their features from their cradles. human law, in dealing with these victims of evil circumstance, can make little discrimination. society must protect itself, treating a criminal as a criminal. but what will god do with them hereafter? be sure he will do right. where little is given, little will be required. it shall be better for tyre and sidon at the day of judgment than for chorazin and bethsaida. there is no ruin without remedy, except that which a man makes for himself by abusing mercy, and throwing away proffered opportunity. thoughts like these rushed through the preacher's mind, as he stood there looking in the tear-bedewed faces of these men of crime. a fresh tide of pity rose in his heart, that he felt came from the heart of the all-pitying one. "i do not try to disguise from you, or from myself the fact that for this life your outlook is not bright. but i come to you this day with a message of hope from god our father. he hath not appointed you to wrath. he loves all his children. he sent his son to die for them. jesus trod the paths of pain, and drained the cup of sorrow. he died as a malefactor, for malefactors. he died for me. he died for each one of you. if i knew the most broken, the most desolate-hearted, despairing man before me, who feels that he is scorned of men and forsaken of god, i would go to where he sits and put my hand on his head, and tell him that god hath not appointed him to wrath, but to obtain salvation by our lord jesus christ, who died for us. i would tell him that his father in heaven loves him still, loves him more than the mother that bore him. i would tell him that all the wrongs and follies of his past life may from this hour be turned into so much capital of a warning experience, and that a million of years from today he may be a child of the heavenly father, and an heir of glory, having the freedom of the heavens and the blessedness of everlasting life. o brothers, god does love you! nothing can ruin you but your own despair. no man has any right to despair who has eternity before him. eternity? long, long eternity! blessed, blessed eternity! that is yours--all of it. it may be a happy eternity for each one of you. from this moment you may begin a better life. there is hope for you, and mercy, and love, and heaven. this is the message i bring you warm from a brother's heart, and warm from the heart of jesus, whose life-blood was poured out for you and me. his loving hand opened the gate of mercy and hope to every man. the proof is that he died for us. o son of god, take us to thy pitying arms, and lift us up into the light that never, never grows dim--into the love that fills heaven and eternity!" as the speaker sunk into his seat, there was a silence that was almost painful for a few moments. then the pent-up emotion of the men broke forth in sobs that shook their strong frames. dr. lucky, the prisoner's friend, made a brief, tearful prayer, and then the benediction was said, and the service was at an end. the men sat still in their seats. as we filed out, of the chapel, many hands were extended to grasp mine, holding it with a clinging pressure. i passed out bearing with me the impression of an hour i can never forget; and the images of those thousand faces are still painted in memory. "corralled." "so you were corralled last night?" this was the remark of a friend whom i met in the streets of stockton the morning after my adventure. i knew what the expression meant as applied to cattle, but i had never heard it before in reference to a human being. yes, i had been corralled; and this is how it happened: it was in the old days, before there were any railroads in california. with a wiry, clean-limbed pinto horse, i undertook to drive from sacramento city to stockton one day. it was in the winter season, and the clouds were sweeping up from the south-west, the snow-crested sierras hidden from sight by dense masses of vapor boiling at their bases and massed against their sides. the roads were heavy from the effects of previous rains, and the plucky little pinto sweated as he pulled through the long stretches of black adobe mud. a cold wind struck me in the face, and the ride was a dreary one from the start. but i pushed on confidently, having faith in the spotted mustang, despite the evident fact that he had lost no little of the spirit with which he dashed out of town at starting. when a genuine mustang flags, it is a serious business. the hardiness and endurance of this breed of horses almost exceed belief. toward night a cold rain began to fall, driving in my face with the headwind. still many a long mile lay between me and stockton. dark came on, and it was dark indeed. the outline of the horse i was driving could not be seen, and the flat country through which i was driving was a great black sea of night. i trusted to the instinct of the horse, and moved on. the bells of a wagon-team meeting me fell upon my ear. i called out, "halloo there!" "what's the matter?" answered a heavy voice through the darkness. "am i in the road to stockton, and can i get there tonight?" "you are in the road, but you will never find your way such a night as this. it is ten good miles from here; you have several bridges to cross --you had better stop at the first house you come to, about half a mile ahead. i am going to strike camp myself." i thanked my adviser, and went on, hearing the sound of the tinkling bells, but unable to see any thing. in a little while i saw a light ahead, and was glad to see it. driving up in front and halting, i repeated the traveler's "halloo" several times, and at last got a response in a hoarse, gruff voice. "i am belated on my way to stockton, and am cold, and tired, and hungry. can i get shelter with you for the night?" "you may try it, if you want to," answered the unmusical voice abruptly. in a few moments a man appeared to take the horse, and taking my satchel in hand, i went into the house. the first thing that struck my attention on entering the room was a big log-fire, which i was glad to see, for i was wet and very cold. taking a chair in the corner, i looked around. the scene that presented itself was not reassuring. the main feature of the room was a bar, with an ample supply of barrels, demijohns, bottles, tumblers, and all the et ceteras. behind the counter stood the proprietor, a burly fellow with a buffalo-neck, fair skin and blue eyes, with a frightful scar across his left under-jaw and neck; his shirt-collar was open, exposing, a huge chest, and his sleeves were rolled up above the elbows. i noticed also that one of his hands was minus all the fingers but the half of one--the result probably of some desperate reencounter. i did not like the appearance of my landlord, and he eyed me in a way that led me to fear that he liked my looks as little as i did his; but the claims of other guests soon diverted his attention from me, and i was left to get warm and make further observations. at a table in the middle of the room several hard-looking fellows were betting at cards, amid terrible profanity and frequent drinks of whisky. they cast inquiring and not very friendly glances at me from time to time, once or twice exchanging whispers and giggling. as their play went on, and tumbler after tumbler of whisky was drunk by them, they became more boisterous. threats were made of using pistols and knives, with which they all seemed to be heavily armed; and one sottish-looking brute actually drew forth a pistol, but was disarmed in no gentle way by the big-limbed landlord. the profanity and other foul language were horrible. many of my readers have no conception of the brutishness of men when whisky and satan have full possession of them. in the midst of a volley of oaths and terrible imprecations by one of the most violent of the set, there was a faint gleam of lingering decency exhibited by one of his companions: "blast it, dick, don't cuss so loud--that fellow in the corner there is a preacher!" there was some potency in "the cloth" even there. how he knew my calling i do not know. the remark directed particular attention to me and i became unpleasantly conspicuous. scowling glances were bent upon me by two or three of the ruffians, and one fellow made a profane remark not at all complimentary to my vocation--where at there was some coarse laughter. in the meantime i was conscious of being very hungry. my hunger, like that of a boy, is a very positive, thing at, least it was very much so in those days. glancing toward the maimed and scarred giant who stood behind the bar, i found he was gazing at me with a fixed expression. "can i get something to eat? i am very hungry, sir," i said in my blandest tones. "yes, we've, plenty of 'cold' goose, and maybe pete can pick up something else for you if he, is sober and in a good humor. come this way." i followed him through a narrow passage-way, which led to a long, low-ceiled room, along nearly the whole length of which was stretched a table, around which were placed rough stools for the rough men about the place. pete, the cook; came in and the head of the house turned me over to him, and returned to his duties behind the bar. from the noise of the uproar going on, his presence was doubtless needed. pete set before me a large roasted wild-goose, not badly cooked, with bread, milk, and the inevitable cucumber pickles. the knives and forks were not very bright --in fact, they had been subjected to influences promotive of oxidation; and the dishes were not free from signs of former use. nothing could be said against the tablecloth--there was no tablecloth there. but the goose was fat, brown, and tender; and a hungry man defers his criticisms until he is done eating. that is what i did. pete evidently regarded me with curiosity. he was about fifty years of age, and had the look of a man who had come down in the world. his face bore the marks of the effects of strong drink, but it was not a bad face; it was more weak than wicked. "are you a preacher?" he asked. "i thought so," he added, after getting my answer to his question. "of what persuasion are you?"! he further inquired. when i told him i was a methodist, he said quickly and with some warmth: "i was sure of it. this is a rough place for a man of your calling. would you like some eggs? we've plenty on hand. and may be you would like a cup of coffee," he added, with, increasing hospitality. i took the eggs, but declined the coffee, not liking the looks of the cups and saucers, and not caring to wait. "i used to be a methodist myself," said pete, with a sort of choking in his throat, "but bad luck and bad company have brought me down to this. i have a family in iowa, a wife and four children. i guess they think i'm dead, and sometimes i wish i was." pete stood by my chair, actually crying. the sight of a methodist preacher brought up old times. he told me his story. he had come to california hoping to make a fortune in a hurry, but had only ill luck from the start. his prospectings were always failures, his partners cheated him, his health broke down, his courage gave way, and--he faltered a little, and then spoke it out--he took to whisky, and then the worst came. "i have come down to this--cooking for a lot of roughs at five dollars a week, and all the whisky i want. it would have been better for me if i had died when i was in the hospital at san andreas." poor pete! he had indeed touched bottom. but he had a heart and a conscience still, and my own heart warmed toward my poor backslidden brother. "you are not a lost man yet. you are worth a thousand dead men. you can get out of this, and you must. you must act the part of a brave man, and not be any longer a coward. bad luck and lack of success are a disgrace to no man. there is where you went wrong. it was cowardly to give up and not write to your family, and then take to whisky." "i know all that, elder. there is no better little woman on earth than my wife"--pete choked up again. "you write to her this very night, and go back to her and your children just as soon as you can get the money to pay your way. act the man, and all will come right yet. i have writing materials here in my satchel --pen, ink, paper, envelopes, stamps, every thing; i am an editor, and go fixed up for writing." the letter was written, i acting as pete's amanuensis, he pleading that he was a poor scribe at best and that his nerves were too unsteady for such work. taking my advice, he made a clean breast of the whole matter, throwing himself on the forgiveness of the wife whom he had so shamefully neglected, and promising by the help of god to make all the amends possible in time to come. the letter was duly directed, sealed, and stamped; and pete looked as if a great weight had been lifted from his soul, he had made me a fire in the little stove, saying it was better than the barroom; in which opinion i was fully agreed. "there is no place for you to sleep tonight without corralling you with the fellows; there is but one bedroom, and there are fourteen bunks in it." i shuddered at the prospect-fourteen bunks in one small room, and those whisky-sodden, loud-cursing card-players to be my roommates for the night! "i prefer sitting here by the stove all night," i said; "i can employ most of the time writing, if i can have a light." pete thought a moment, looked grave, and then said: "that won't do, elder; those fellows would take offense, and make trouble. several of them are out now goose-hunting; they will be coming in at all hours from now till daybreak, and it won't do for them to find you sitting up here alone. the best, thing for you to do is to go in and take one of those bunks; you, needn't takeoff any thing but your coat and boots, and"--here he lowered his voice, looking about him as he spoke--"if you have any money about, keep it next to your body." the last words were spoken with peculiar emphasis. taking the advice given me, i took up my baggage and followed pete to the room where i was to spend the night. ugh! it was dreadful. the single window in the room was nailed down, and the air was close and foul. the bunks were damp and dirty beyond belief, grimed with foulness, and reeking with ill odors. this was being corralled. i turned to pete, saying: "i can't stand this--i will go back to the kitchen." "you had better follow my advice, elder," said he very gravely. "i know things about here better than you do. it's rough, but you had better stand it." and i did; being corralled, i had to stand it. that fearful night! the drunken fellows staggered in one by one, cursing and hiccoughing, until every bunk was occupied. they muttered oaths in their sleep, and their stertorous breathings made a concert fit for tartarus. the sickening odors of whisky, onions, and tobacco filled the room. i lay there and longed for daylight, which seemed as if it never would come. i thought of the descriptions i had heard and read of hell, and just then the most vivid conception of its horror was to be shut up forever with the aggregated impurity of the universe. by contrast i tried to think of that city of god into which, it is said, "there shall in no wise enter into it any thing that defileth, neither whatsoever worketh abomination, or maketh a lie; but they which are written in the lamb's book of life." but thoughts of heaven did not suit the situation; it was more suggestive of the other place. the horror of being shut up eternally in hell as the companion of lost spirits was intensified by the experience and reflections of that night when i was corralled. day came at last. i rose with the first streaks of the dawn, and not having much toilet to make, i was soon out-of-doors. never did i breathe the pure, fresh air with such profound pleasure and gratitude. i drew deep inspirations, and, opening my coat and vest, let the breeze that swept up the valley blow upon me unrestricted. how bright, was the face of nature, and how sweet her, breath after the sights, sounds, and smells of the night! i did not wait for breakfast, but had my pinto and buggy brought out, and, bidding pete good-by, hurried on to stockton. "so you were corralled last night?" was the remark of a friend, quoted at the beginning of this true sketch. "what was the name of the proprietor of the house?" i gave him the name. "dave w--!" he exclaimed with fresh astonishment. "that is the roughest place in the san joaquin valley. several men have been killed and robbed there during the last two or three years." i hope pete got back safe to his wife and children in iowa; and i hope i may never be corralled again. the reblooming. it is now more than twenty years since the morning a slender youth of handsome face and modest mien came into my office on the corner of montgomery and clay streets, san francisco. he was the son of a preacher well known in missouri and california, a man of rare good sense, caustic wit, and many eccentricities. the young man became an attache of my newspaper-office and an inmate of my home. he was as fair as a girl, and refined in his taste and manners. a genial taciturnity, if the expression may be allowed, marked his bearing in the social circle. everybody had a kind feeling and a good word for the quiet, brightfaced youth. in the discharge of his duties in the office he was punctual and trustworthy, showing not only industry but unusual aptitude for business it was with special pleasure that i learned that he was turning his thoughts to the subject of religion. during the services in the little pine-street church he would sit with thoughtful face, and not seldom with moistened eyes. he read the bible and prayed in secret. i was not surprised when he came to me one day and opened his heart. the great crisis in his life had come. god was speaking to his soul, and he was listening to his voice. the uplifted cross drew him, and he yielded to the gentle attraction. we prayed together, and henceforth there was a new and sacred bond that bound us to each other. i felt that i was a witness to the most solemn transaction that can take place on earth--the wedding of a soul to a heavenly faith. soon thereafter he went to virginia, to attend college. there he united with the church. his letters to me were full of gratitude and joy. it was the blossoming of his spiritual life, and the air was full of its fragrance, and the earth was flooded with glory. a pedestrian tour among the virginia hills brought him into communion with nature at a time when it was rapture to drink in its beauty and its grandeur. the light kindled within his soul by the touch of the holy spirit transfigured the scenery upon which he gazed, and the glory of god shone round about the young student in the flush and blessedness of his first love. o blessed days! o days of brightness, and sweetness, and rapture! the soul is then in its blossoming-time, and all high enthusiasms, all bright dreams, all thrilling joys, are realities which inwork themselves into the consciousness, to be forgotten never; to remain with us as prophecies of the eternal springtime that awaits the true-hearted on the hills of god beyond the grave, or as accusing voices charging us with the murder of our dead ideals! amid the dust and din of the battle in after-years we turn to this radiant spot in our journey with smiles or tears; according as we have been true or false to the impulses, aspirations, and purposes inspired within us by that first, and brightest, and nearest manifestation of god. such a season is a natural to every life as the april buds and june roses are to forest and garden. the springtime of some lives is deferred by unpropitious circumstance to the time when it should be glowing with autumnal glory, and rich in the fruitage of the closing year. the life that does not blossom into religion in youth may have light at noon, and peace at sunset, but misses the morning glory on the hills, and the dew that sparkles on grass and flower. the call of god to the young to seek him early is the expression of a true psychology no less than of a love infinite in its depth and tenderness. his college-course finished, my young friend returned to california, and in one of its beautiful valley-towns he entered a law-office, with a view to prepare himself for the legal profession. here he was thrown into daily association with a little knot of skeptical lawyers. as is often the case, their moral obliquities ran parallel with their errors in opinion. they swore, gambled genteelly, and drank. it is not strange that in this icy atmosphere the growth of any young friend in the christian life was stunted. such influences are like the dreaded north wind that at times sweeps over the valleys of california in the spring and early summer, blighting and withering the vegetation it does not kill. the brightness of his hope was dimmed, and his soul knew the torture of doubt--a torture that is always keenest to him who allows himself to sink in the region of fogs after he has once stood upon the sunlit summit of faith. just at this crisis, a thing little in itself deepened the shadow that was falling upon his life. a personal misunderstanding with the pastor kept him from attending church. thus he lost the most effectual defense against the assaults that were being made upon his faith and hope, in being separated from the fellowship and cut off from the activities of the church of god. have you not noted these malign coincidences in life? there are times when it seems that the tide of events sets against us when, like the princely sufferer of the land of uz, every messenger that crosses the threshold brings fresh tidings of ill, and our whole destiny seems to be rushing to a predoomed perdition. the worldly call it bad luck; the superstitious call it fate; the believer in god calls it by another name. always of a delicate constitution, my friend now exhibited symptoms of serious pulmonary disease. it was at that time the fashion in california to prescribe whisky as a specific for that class of ailments. it is possible that there is virtue in the prescription, but i am sure of one thing, namely, that if consumption diminished, drunkenness increased; if fewer died of phthisis, more died of delirium tremens. the physicians of california have sent a host of victims raving and gibbering in drunken frenzy or idiocy down to death and hell! i have reason to believe that my friend inherited a constitutional weakness at this point. as flame to tinder, was the medicinal whisky to him. it grew upon him rapidly, and soon this cloud overshadowed all his life. he struggled hard to break the serpent-folds that were tightening around him; but the fire that had been kindled seemed to be quenchless. an uncontrolled evil passion is hellfire. he writhed in its burnings in an agony that could be understood only by such as knew how almost morbidly sensitive was his nature, and how vital was his conscience. i became a pastor in the town where he lived, and renewed my association with him as far as i could. but there was a constraint unlike the old times. when under the influence of liquor, he would pass me in the streets with his head down, a deeper flush mantling his cheek as he hurried by with unsteady step. sometimes i met him staggering homeward through a back street, hiding from the gaze of men. he was at first shy of me when sober, but gradually the constraint wore off, and he seemed disposed to draw nearer to me, as in the old days. his struggle went on, days of drunkenness following weeks of soberness, his haggard face after each debauch wearing a look of unspeakable weariness and wretchedness. one of the lawyers who had led him into the mazes of doubt--a man of large and versatile gifts, whose lips were touched with a noble and persuasive eloquence--sunk deeper and deeper into the black depths of drunkenness, until the tragedy ended in a horror that lessened the gains of the saloons for at least a few days. he was found dead in his bed one morning in a pool of blood, his throat cut by his own guilty hand. my friend had married a lovely girl, and the cottage in which they lived was one of the coziest, and the garden in front was a little paradise of neatness and beauty. ah! i must drop a veil over a part of this true tale. all along i have written under half protest, the image of a sad, wistful face rising at times between my eyes and the sheet on which these words are traced. they loved each other tenderly and deeply, and both were conscious of the presence of the devil that was turning their heaven into hell. "save him, doctor, save him! he is the noblest of men, and the tenderest, truest husband. he loves you, and he will let you talk to him. save him, o save him! help me to pray for him! my heart will break!" poor child! her loving heart was indeed breaking; and her fresh young life was crushed under a weight of grief and shame too heavy to be borne. what he said to me in the interviews held in his sober intervals i have not the heart to repeat now. he still fought against his enemy; he still buffeted the billows that were going over him, though with feebler stroke. when their little child died, her tears fell freely, but he was like one stunned. stony and silent he stood and saw the little grave filled up, and rode away tearless, the picture of hopelessness. by a coincidence; after my return to san francisco, he came thither, and again became my neighbor at north beach. i went up to see him one evening. he was very feeble, and it was plain that the end was not far off. at the first glance i saw that a great change had taken place in him. he had found his lost self. the strong drink was shut out from him, and he was shut in with his better thoughts and with god. his religious life rebloomed in wondrous beauty and sweetness. the blossoms of his early joy had fallen off, the storms had torn its branches and stripped it of its foliage, but its root had never perished, because he had never ceased to struggle for deliverance. aspiration and hope live or die together in the human soul. the link that bound my friend to god was never wholly sundered. his better nature clung to the better way with a grasp that never let go altogether. "o doctor, i am a wonder to myself! it does seem to me that god has given back to me every good thing i possessed in the bright and blessed past. it has all come back to me. i see the light and feel the joy as i did when i first entered the new life. o it is wonderful! doctor, god never gave me up, and i never ceased to yearn for his mercy and love, even in the darkest season of my unhappy life?" his very face had recovered its old look, and his voice its old tone. there could be no doubt of this soul had rebloomed in the life of god. the last night came--they sent for me with the message, "come quickly! he is dying." i found him with that look which i have seen on the faces of others who were nearing death--a radiance and a rapture that awed the beholder. o solemn, awful mystery of death! i have stood in its presence in every form of terror and of sweetness, and in every case the thought has been impressed upon me that it was a passage into the great realities. "doctor," he said, smiling, and holding my hand; "i had hoped to be with you in your office again, as in the old days--not as a business arrangement, but just to be with you, and revive old memories, and to live the old life over again. but that cannot be, and i must wait till we meet in the world of spirits, whither i go before you. it seems to be growing dark. i cannot see your face hold my hand. i am going--going. i am on the waves--on the waves--." the radiance was still upon his face, but the hand i held no longer clasped mine-the wasted form was still. it was the end. he was launched upon the infinite sea for the endless voyage. the emperor norton. that was his title. he wore it with an air that was a strange mixture of the mock-heroic and the pathetic. he was mad on this one point, and strangely shrewd and well-informed on almost every other. arrayed in a faded-blue uniform, with brass buttons and epaulettes, wearing a cocked-hat with an eagle's feather, and at times with a rusty sword at his side, he was a conspicuous figure in the streets of san francisco, and a regular habitue of all its public places. in person he was stout, full-chested, though slightly stooped, with a large head heavily coated with bushy black hair, an aquiline nose, and dark gray eyes, whose mild expression added to the benignity of his face. on the end of his nose grew a tuft of long hairs, which he seemed to prize as a natural mark of royalty, or chieftainship. indeed, there was a popular legend afloat that he was of true royal blood--a stray bourbon, or something of the sort. his speech was singularly fluent and elegant. the emperor was one of the celebrities that no visitor failed to see. it is said that his mind was unhinged by a sudden loss of fortune in the early days, by the treachery of a partner in trade. the sudden blow was deadly, and the quiet, thrifty, affable man of business became a wreck. by nothing is the inmost quality of a man made more manifest than by the manner in which he meets misfortune. one, when the sky darkens, having strong impulse and weak will, rushes into suicide; another, with a large vein of cowardice, seeks to drown the sense of disaster in strong drink; yet another, tortured in every fiber of a sensitive organization, flees from the scene of his troubles and the faces of those that know him, preferring exile to shame. the truest man, when assailed by sudden calamity, rallies all the reserved forces of a splendid manhood to meet the shock, and, like a good ship, lifting itself from the trough of the swelling sea, mounts the wave and rides on. it was a curious idiosyncrasy that led this man, when fortune and reason were swept away at a stroke, to fall back upon this imaginary imperialism. the nature that could thus, when the real fabric of life was wrecked, construct such another by the exercise of a disordered imagination, must have been originally of a gentle and magnanimous type. the broken fragments of mind, like those of a statue, reveal the quality of the original creation. it may be that he was happier than many who have worn real crowns. napoleon at chiselhurst, or his greater uncle at st. helena, might have been gainer by exchanging lots with this man, who had the inward joy of conscious greatness without its burden and its perils. to all public places he had free access, and no pageant was complete without his presence. from time to time he issued proclamations, signed "norton i.," which the lively san francisco dailies were always ready to print conspicuously in their columns. the style of these proclamations was stately, the royal first person plural being used by him with all gravity and dignity. ever and anon, as his uniform became dilapidated or ragged, a reminder of the condition of the imperial wardrobe would be given in one or more of the newspapers, and then in a few days he would appear in a new suit. he had the entree of all the restaurants, and he lodged--nobody knew where. it was said that he was cared for by members of the freemason society to which he belonged at the time of his fall. i saw him often in my congregation in the pine-street church, along in , and into the sixties. he was a respectful and attentive listener to preaching. on the occasion of one of his first visits he spoke to me after the service, saying, in a kind and patronizing tone: "i think it my duty to encourage religion and morality by showing myself at church, and to avoid jealousy i attend them all in turn." he loved children, and would come into the sunday-school, and sit delighted with their singing. when, in distributing the presents on a christmas-tree, a necktie was handed him as the gift of the young ladies, he received it with much satisfaction, making a kingly bow of gracious acknowledgment. meeting him one day, in the springtime, holding my little girl by the hand, he paused, looked at the child's bright face, and taking a rose-bud from his button-hole, he presented it to her with a manner so graceful, and a smile so benignant, as to show that under the dingy blue uniform there beat the heart of a gentleman. he kept a keen eye on current events, and sometimes expressed his views with great sagacity. one day he stopped me on the street, saying: "i have just read the report of the political sermon of dr.--(giving the name of a noted sensational preacher, who was in the habit, at times, of discussing politics from his pulpit). i disapprove political-preaching. what do you think?" i expressed my cordial concurrence. "i will put a stop to it. the preachers must stop preaching politics, or they must all come into one state church. i will at once issue a decree to that effect." for some unknown reason, that decree never was promulgated. after the war, he took a deep interest in the reconstruction of the southern states. i met him one day on montgomery street, when he asked me in a tone and with a look of earnest solicitude: "do you hear any complaint or dissatisfaction concerning me from the south?" i gravely answered in the negative. "i was for keeping the country undivided, but i have the kindest feeling for the southern people, and will see that they are protected in all their rights. perhaps if i were to go among them in person, it might have a good effect. what do you think?" i looked at him keenly as i made some suitable reply, but could see nothing in his expression but simple sincerity. he seemed to feel that he was indeed the father of his people. george washington himself could not have adopted a more paternal tone. walking along the street behind the emperor one day, my curiosity was a little excited by seeing him thrust his hand into the hip-pocket of his blue trousers with sudden energy. the hip-pocket, by the way, is a modern american stupidity, associated in the popular mind with rowdyism, pistol shooting, and murder. hip-pockets should be abolished wherever there are courts of law and civilized men and women. but what was the emperor after? withdrawing his hand just as i overtook him, the mystery was revealed--it grasped a thick bologna sausage, which he began to eat with unroyal relish. it gave me a shock, but he was not the first royal personage who has exhibited low tastes and carnal hankerings. he was seldom made sport of or treated rudely. i saw him on one occasion when a couple of passing hoodlums jeered at him. he turned and gave them a look so full of mingled dignity, pain, and surprise, that the low fellows were abashed, and uttering a forced laugh, with averted faces they hurried on. the presence that can bring shame to a san francisco hoodlum must indeed be kingly, or in some way impressive. in that genus the beastliness and devilishness of american city-life reach their lowest denomination when the brutality of the savage and the lowest forms of civilized vice are combined, human nature touches bottom. the emperor never spoke of his early life. the veil of mystery on this point increased the popular curiosity concerning him, and invested him with something of a romantic interest. there was one thing that excited his disgust and indignation. the bohemians of the san francisco press got into the practice of attaching his name to their satires and hits at current follies, knowing that the well-known "norton i." at the end would insure a reading. this abuse of the liberty of the press he denounced with dignified severity, threatening extreme measures unless it were stopped. but nowhere on earth did the press exhibit more audacity, or take a wider range, and it would have required a sterner heart and a stronger hand than that of norton i. to put a hook into its jaws. the end of all human grandeur, real or imaginary, comes at last. the emperor became thinner and more stooped as the years passed. the humor of his hallucination retired more and more into the background, and its pathetic side came out more strongly. his step was slow and feeble, and there was that look in his eyes so often seen in the old and sometimes in the young, just before the great change comes--a rapt, far-away look, suggesting that the invisible is coming into view, the shadows vanishing and the realities appearing. the familiar face and form were missed on the streets, and it was known that he was dead. he had gone to his lonely lodging, and quietly lain down and died. the newspapers spoke of him with pity and respect, and all san francisco took time, in the midst of its roar-and-rush fever of perpetual excitement, to give a kind thought to the dead man who had passed over to the life where all delusions are laid aside, where the mystery of life shall be revealed, and where we shall see that through all its tangled web ran the golden thread of mercy. his life was an illusion, and the thousands who sleep with him in lone mountain waiting the judgment-day were his brothers. camilla cain. she was from baltimore, and had the fair face and gentle voice peculiar to most baltimore women. her organization was delicate but elastic--one of the sort that bends easily, but is hard to break. in her eyes was that look of wistful sadness so often seen in holy women of her type. timid as a fawn, in the class-meeting she spoke of her love to jesus and delight in his service in a voice low and a little hesitating, but with strangely thrilling effect. the meetings were sometimes held in her own little parlor in the cottage on dupont street, and then we always felt that we had met where the master himself was a constant and welcome guest. she was put into the crucible. for more than fifteen years she suffered unceasing and intense bodily pain. imprisoned in her sick chamber, she fought her long, hard battle. the pain-distorted limbs lost their use, the patient face waxed more wan, and the traces of agony were on it always; the soft, loving eyes were often tear washed. the fires were hot, and they burned on through the long, long years without respite. the mystery of it all was too deep for me; it was too deep for her. but somehow it does seem that the highest suffer most: the sign of rank in nature is capacity for pain, and the anguish of the singer makes the sweetness of the strain. the victory of her faith was complete. if the inevitable why? sometimes was in her thought, no shadow of distrust ever fell upon her heart. her sick-room was the quietest, brightest spot in all the city. how often did i go thither weary and faint with the roughness of the way, and leave feeling that i had heard the voices and inhaled the odors of paradise! a little talk, a psalm, and then a prayer, during which the room seemed to be filled with angel-presences; after which the thin, pale face was radiant with the light reflected from our immanuel's face. i often went to see her, not so much to convey as to get a blessing. her heart was kept fresh as a rose of sharon in the dew of the morning. the children loved to be near her; and the pathetic face of the dear crippled boy, the pet of the family, was always brighter in her presence. thrice death came into the home-circle with its shock and mighty wrenchings of the heart, but the victory was not his, but hers. neither death nor life could separate her from the love of her lord. she was one of the elect. the elect are those who know, having the witness in themselves. she was conqueror of both--life with its pain and its weariness, death with its terror and its tragedy. she did not endure merely, she triumphed. borne on the wings of a mighty faith, her soul was at times lifted above all sin, and temptation, and pain, and the sweet, abiding peace swelled into an ecstasy of sacred joy. her swimming eyes and rapt look told the unutterable secret. she has crossed over the narrow stream on whose margin she lingered so long; and there was joy on the other side when the gentle, patient, holy camilla cain joined the glorified throng. o though oft depressed and lonely, all my fears are laid aside, if i but remember only such as these have lived and died! lone mountain. the sea-wind sweeps over the spot at times in gusts like the frenzy of hopeless grief, and at times in sighs as gentle as those heaved by aged sorrow in sight of eternal rest. the voices of the great city come faintly over the sand-hills, with subdued murmur like a lullaby to the pale sleepers that are here lying low. when the winds are quiet, which is not often, the moan of the mighty pacific can be heard day or night, as if it voiced in muffled tones the unceasing woe of a world under the reign of death. westward, on the summit of a higher hill, a huge cross stretches its arms as if embracing the living and the dead-the first object that catches the eye of the weary voyager as he nears the golden gate, the last that meets his lingering gaze as he goes forth upon the great waters. o sacred emblem of the faith with which we launch upon life's stormy main--of the hope that assures that we shall reach the port when the night and the tempest are past! when the winds are high, the booming of the breakers on the cliff sounds as if nature were impatient of the long, long delay, and had anticipated the last thunders that wake the sleeping dead. on a clear day, the blue pacific, stretching away beyond the snowy surf-line, symbolizes the shoreless sea that rolls through eternity. the cliff house road that runs hard by is the chief drive of the pleasure-seekers of san francisco. gayety, and laughter, and heart-break, and tears, meet on the drive; the wail of agony and the laugh of gladness mingle as the gay crowds dash by the slow-moving procession on its way to the grave. how often have i made that slow, sad journey to lone mountain--a via doloroso to many who have never been the same after they had gone thither, and coming back found the light quenched and the music bushed in their homes! thither the dead senator was borne, followed by the tramping thousands, rank on rank, amid the booming of minute-guns, the tolling of bells, the measured tread of plumed soldiers, and the roll of drums. thither was carried, in his rude coffin, the "unknown man" found dead in the streets, to be buried in potter's-field. thither was borne the hard and grasping idolater of riches, who clung to his coin, and clutched for more, until he was dragged away by the one hand that was colder and stronger than his own. here was brought the little child, out of whose narrow grave there blossomed the beginnings of a new life to the father and mother, who in the better life to come will be found among the blessed company of those whose only path to paradise lay through the valley of tears. here were brought the many wanderers, whose last earthly wish was to go back home, on the other side of the mountains, to die, but were denied by the stern messenger who never waits nor spares. and here was brought the mortal part of the aged disciple of jesus, in whose dying-chamber the two worlds met, and whose death-throes were demonstrably the birth of a child of god into the life of glory. the first time i ever visited the place was to attend the funeral of a suicide. the dead man i had known in virginia, when i was a boy. he was a graduate of the virginia military institute, and when i first knew him he was the captain of a famous volunteer company. he was as handsome as a picture--the admiration of the girls, and the envy of the young men of his native town. he was among the first who rushed to california on the discovery of gold, and of all the heroic men who gave early california its best bias none was knightlier than this handsome virginian; none won stronger friends, or had brighter hopes. he was the first state senator from san francisco. he had the magnetism that won and the nobility that retained the love of men. some men push themselves forward by force of intellect or of will--this man was pushed upward by his friends because he had their hearts. he married a beautiful woman, whom he loved literally unto death. i shall not recite the whole story. god only knows it fully, and he will judge righteously. there was trouble, rage, and tears, passionate partings and penitent reunions--the old story of love dying a lingering yet violent death. on the fatal morning i met him on washington street. i noticed his manner was hurried and his look peculiar, as i gave him the usual salutation and a hearty grasp of the hand. as be moved away, i looked after him with mingled admiration and pity, until his faultless figure turned the corner and disappeared. ten minutes afterward he lay on the floor of his room dead, with a bullet through his brain, his hair dabbled in blood. at the funeral-service, in the little church on pine street, strong men bowed their heads and sobbed. his wife sat on a front seat, pale as marble and as motionless, her lips compressed as with inward pain; but i saw no tears on the beautiful face. at the grave the body had been lowered to its resting-place, and all being ready, the attendants standing with uncovered heads, i was just about to begin the reading of the solemn words of the burial service, when a tall, blue-eyed man with gray side-whiskers pushed his way to the head of the grave, and in a voice choked with passion, exclaimed: "there lies as noble a gentleman as ever breathed, and he owes his death to that fiend!" pointing his finger at the wife, who stood pale and silent looking down into the grave. she gave him a look that i shall never forget, and the large steely-blue eyes flashed fire, but she spoke no word. i spoke: "whatever maybe your feelings, or whatever the occasion for them, you degrade yourself by such an exhibition of them here." "that is so, sir; excuse me, my feelings overcame me," he said, and retiring a few steps, he leaned upon a branch of a scrub-oak and sobbed like a child. the farce and the tragedy of real life were here exhibited on another occasion. among my acquaintances in the city were a man and his wife who were singularly mismatched. he was a plain, unlettered, devout man, who in a prayer-meeting or class-meeting talked with a simple-hearted earnestness that always produced a happy effect. she was a cultured woman, ambitious and worldly, and so fine-looking that in her youth she must have been a beauty and a belle. they lived in different worlds, and grew wider apart as time passed by--he giving himself to religion, she giving herself to the world. in the gay city circles in which she moved she was a little ashamed of the quiet, humble old man, and he did not feel at home among them. there was no formal separation, but it was known to the friends of the family that for months at a time they never lived together. the fashionable daughters went with their mother. the good old man, after a short sickness, died in great peace. i was sent for to officiate at the funeral-service. there was a large gathering of people, and a brave parade of all the externals of grief, but it was mostly dry-eyed grief, so far as i could see. at the grave, just as the sun that was sinking in the ocean threw his last rays upon the spot, and the first shovelful of earth fell upon the coffin that had been gently lowered to its resting-place, there was a piercing shriek from one of the carriages, followed by the exclamation: "what shall i do? how can i live? i have lost my all! o! o! o!" it was the dead man's wife. significant glances and smiles were interchanged by the bystanders. approaching the carriage in which the woman was sitting, i laid my hand upon her arm, looked her in the face, and said: "hush!" she understood me, and not another sound did she utter. poor woman! she was not perhaps as heartless as they thought she was. there was at least a little remorse in those forced exclamations, when she thought of the dead man in the coffin; but her eyes were dry, and she stopped very short. another incident recurs to me that points in a different direction. one day the most noted gambler in san francisco called on me with the request that i should attend the funeral of one of his friends, who had died the night before. a splendid-looking fellow was this knight of the faro-table. more than six feet in height, with deep chest and perfectly rounded limbs, jet black hair, brilliant black eyes, clear olive complexion, and easy manners, he might have been taken for an italian nobleman or a spanish don. he had a tinge of cherokee blood in his veins. i have noticed that this cross of the white and cherokee blood often results in producing this magnificent physical development. i have known a number of women of this lineage, who were very queens in their beauty and carriage. but this noted gambler was illiterate. the only book of which he knew or cared much was one that had fifty-two pages, with twelve pictures. if he had been educated, he might have handled the reins of government, instead of presiding over a nocturnal banking institution. "parson, can you come to number--, on kearney street, tomorrow at ten o'clock, and give us a few words and a prayer over a friend of mine, who died last night?" i promised to be there, and he left. his friend, like himself, had been a gambler. he was from new york. he was well educated, gentle in his manners, and a general favorite with the rough and desperate fellows with whom he associated, but with whom he seemed out of place. the passion for gambling had put its terrible spell on him, and be was helpless in its grasp. but though he mixed with the crowds that thronged the gambling-hells, he was one of them only in the absorbing passion for play. there was a certain respect shown him by all that venturesome fraternity. he went to frazer river during the gold excitement. in consequence of exposure and privation in that wild chase after gold, which proved fatal to so many eager adventurers, he contracted pulmonary disease, and came back to san francisco to die. he had not a dollar. his gambler friend took charge of him, placed him in a good boarding-place, hired a nurse for him, and for nearly a year provided for all his wants. newton. the miners called him the "wandering jew." that was behind his back. to his face they addressed him as father newton. he walked his circuits in the northern mines. no pedestrian could keep up with him, as with his long form bending forward, his immense yellow beard that reached to his breast floating in the wind, he strode from camp to camp with the message of salvation. it took a good trotting-horse to keep pace with him. many a stout prospector, meeting him on a highway, after panting and straining to bear him company, had to fall behind, gazing after him in wonder, as he swept out of sight at that marvelous gait. there was a glitter in his eye, and an intensity of gaze that left you in doubt whether it was genius or madness that it bespoke. it was, in truth, a little of both. he had genius. nobody ever talked with him, or heard him preach, without finding it out. the rough fellow who offended him at a camp-meeting, near "yankee jim's," no doubt thought him mad. he was making some disturbance just as the long bearded old preacher was passing with a bucket of water in his hand. "what do you mean?" he thundered, stopping and fixing his keen eye upon the rowdy. a rude and profane reply was made by the jeering sinner. quick as thought newton rushed upon him with flashing eye and uplifted bucket, a picture of fiery wrath that was too much for the thoughtless scoffer, who fled in terror amid the laughter of the crowd. the vanquished son of belial had no sympathy from anybody, and the plucky preacher was none the less esteemed because he was ready to defend his master's cause with carnal weapons. the early californians left scarcely any path of sin unexplored, and were a sad set of sinners, but for virtuous women and religion they never lost their reverence. both were scarce in those days, when it seemed to be thought that gold-digging and the decalogue could not be made to harmonize. the pioneer preachers found that one good woman made a better basis for evangelization than a score of nomadic bachelors. the first accession of a woman to a church in the mines was an epoch in its history. the church in the house of lydia was the normal type--it must be anchored to woman's faith, and tenderness, and love, in the home. he visited san francisco during my pastorate in . on sunday morning he preached a sermon of such extraordinary beauty and power that at the night-service the house was crowded by a curious congregation, drawn thither by the report of the forenoon effort. his subject was the faith of the mother of moses, and he handled it in his own way. the powerful effect of one passage i shall never forget. it was a description of the mother's struggle, and the victory of her faith in the crisis of her trial. no longer able to protect her child, she resolves to commit him to her god. he drew a picture of her as she sat weaving together the grasses of the little ark of bulrushes, her hot tears falling upon her work, and pausing from time to time with her hand pressed upon her throbbing heart. at length, the little vessel is finished, and she goes by night to the bank of the nile, to take the last chance to save her boy from the knife of the murderers. approaching the river's edge, with the ark in her hands, she stoops a moment, but her mother's heart fails her. how can she give up her child? in frenzy of grief she sinks upon her knees, and lifting her gaze to the heavens, passionately prays to the god of israel. that prayer! it was the wail of a breaking heart, a cry out of the depths of a mighty agony. but as she prays the inspiration of god enters her soul, her eyes kindle, and her face beams with the holy light of faith. she rises, lifts the little ark, looks upon the sleeping face of the fair boy, prints a long, long kiss upon his brow, and then with a firm step she bends down, and placing the tiny vessel upon the waters, lets it go. "and away it went," he, said, "rocking upon the waves as it swept beyond the gaze of the mother's straining eyes. the monsters of the deep were there, the serpent of the nile was there, behemoth was there, but the child slept as sweetly and as safely upon the rocking waters as if it were nestled upon its mother's breast--for god was there!" the effect was electric. the concluding words, "for god was there!" were uttered with upturned face and lifted hands, and in a tone of voice that thrilled the hearers like a sudden clap of thunder from a cloud over whose bosom the lightnings had rippled in gentle flashes. it was true eloquence. in a revival meeting, on another occasion, he said, in a sermon of terrific power: "o the hardness of the human heart! yonder is a man in hell. he is told that there is one condition on which he may be delivered, and that is that lie must get the consent of every good being in the universe. a ray of hope enters his soul, and he sets out to comply with the condition. he visits heaven and earth, and finds sympathy and consent from all. all the holy angels consent to his pardon; all the pure and holy on earth consent; god himself repeats the assurance of his willingness that he maybe saved. even in hell, the devils do not object, knowing that his misery only heightens theirs. all are willing, all are ready--all but one man. he refuses; he will not consent. a monster of cruelty and wickedness, he refuses his simple consent to save a soul from an eternal hell! surely a good god and all good beings in the universe would turn in horror from such a monster. sinner, you are that man! the blessed god, the holy trinity, every angel in heaven, every good man and woman on earth, are not only willing but anxious that you shall be saved. but you will not consent. you refuse to come to jesus that you may have life. you are the murderer of your own immortal soul. you drag yourself down to hell. you lock the door of your own dungeon of eternal despair, and throw the key into the bottomless pit, by rejecting the lord that bought you with his blood! you will be lost! you must be lost! you ought to be lost." the words were something like these, but the energy, the passion, the frenzy of the speaker must be imagined. hard and stubborn hearts were moved under that thrilling appeal. they were made to feel that the preacher's picture of a self doomed soul described their own eases. there was joy in heaven that night over repenting sinners. this old man of the mountains was a walking encyclopedia of theological and other learning. he owned books that could not be duplicated in california; and he read them, digested their contents, and constantly surprised his cultivated bearers by the affluence of his knowledge, and the fertility of his literary and classic allusion. he wrote with elegance and force. his weak point was orthography. he would trip sometimes in the spelling of the most common words. his explanation of this weakness was curious: he was a printer in mobile, alabama. on one occasion a thirty-two-page book-form of small type was "pied." "i undertook,", said he, "to set that pied form to rights, and, in doing so, the words got so mixed in my brain that my spelling was spoiled forever!" he went to oregon, and traveled and preached from the cascade mountains to idaho, thrilling, melting, and amusing, in turn, the crowds that came out to hear the wild-looking man whose coming was so sudden, and whose going as so rapid, that they were lost in wonder, as if gazing at a meteor that flashed across the sky. he was a yankee from new hampshire, who, going to alabama, lost his heart, and was ever afterward intensely southern in all his convictions and affections. his fiery soul found congenial spirits among the generous, hotblooded people of the gulf states, whose very faults had a sort of charm for this impulsive, generous, erratic, gifted, man. he made his way back to his new england hills, where he is waiting for the sunset, often turning a longing eye southward, and now and then sending a greeting to alabama. the california politician. the california politician of the early days was plucky. he had to be so, for faint heart won no votes in those rough times. one of the marshalls (tom or ned--i forget which), at the beginning of a stump speech one night in the mines, was interrupted by a storm of hisses and execrations from a turbulent crowd of fellows, many of whom were full of whisky. he paused a moment, drew himself up to his full height, coolly took a pistol from his pocket, laid it on the stand before him, and said: "i have seen bigger crowds than this many a time. i want it to be fully understood that i came here to make a speech tonight, and i am going to do it, or else there will be a funeral or two." that touch took with that crowd. the one thing they all believed in was courage. marshall made one of his grandest speeches, and at the close the delighted miners bore him in triumph from the rostrum. that was a curious exordium of "uncle peter mehan," when he made his first stump-speech at sonora: "fellow-citizens, i was born an orphin at a very early period of my life." he was a candidate for supervisor, and the good-natured miners elected him triumphantly. he made a good supervisor, which is another proof that book-learning and elegant rhetoric are not essential where there are integrity and native good sense. uncle peter never stole any thing, and he was usually on the right side of all questions that claimed the attention of the county-fathers of tuolumne. in the early days, the virginians, new yorkers, and tennesseans, led in politics. trained to the stump at home, the virginians and tennesseans were ready on all occasions to run a primary-meeting, a convention, or a canvass. there was scarcely a mining-camp in the state in which there was not a leading local politician from one or both of these states. the new yorker understood all the inside management of party organization, and was up to all the smart tactics developed in the lively struggles of parties in the times when whiggery and democracy fiercely fought for rule in the empire state. broderick was a new yorker, trained by tammany in its palmy days. he was a chief, who rose from the ranks, and ruled by force of will. thick-set, strong-limbed, full-chested, with immense driving-power in his back-head, he was an athlete whose stalwart physique was of more value to him than the gift of eloquence, or even the power of money. the sharpest lawyers and the richest money-kings alike went down before this uncultured and moneyless man, who dominated the clans of san francisco simply by right of his manhood. he was not without a sort of eloquence of his own. he spoke right to the point, and his words fell like the thud of a shillalah; or rang like the clash of steel. he dealt with the rough elements of politics in an exciting and turbulent period of california politics, and was more of a border chief than an ivanhoe in his modes of warfare. he reached the united states senate, and in his first speech in that august body he honored his manhood by an allusion to his father, a stone mason, whose hands, said broderick, had helped to erect the very walls of the chamber in which he spoke. when a man gets as high as the united states senate, there is less tax upon his magnanimity in acknowledging his humble origin than while he is lower down the ladder. you seldom hear a man boast how low he began until he is far up toward the summit of his ambition. ninety-nine out of every hundred self-made men are at first more or less sensitive concerning their low birth; the hundredth man who is not is a man indeed. broderick's great rival was gwin. the men were antipodes in every thing except that they belonged to the same party. gwin still lives, the most colossal figure in the history of california. he looks the man he is. of immense frame, ruddy complexion, deep-blue eyes that almost blaze when he is excited, rugged yet expressive features, a massive bead crowned with a heavy suit of silver-white hair, he is marked by nature for leadership. common men seem dwarfed in his presence. after he had dropped out of california politics for awhile, a sacramento hotel-keeper expressed what many felt during a legislative session: "i find myself looking around for gwin. i miss the chief." my first acquaintance with dr. gwin began with, an incident that illustrates the man and the times. it was in . the legislature was in session at sacramento, and a united states senator was to, be elected. i was making a tentative movement toward starting a southern methodist newspaper, and visited sacramento on that business. my friend major p. l. solomon was there, and took a friendly interest in my enterprise. he proposed to introduce me to the leading men of both parties, and i thankfully availed myself of his courtesy. among the first to whom he presented me was a noted politician who, both before and since, has enjoyed a national notoriety, and who still lives, and is as, ready as ever to talk or fight. his name i need not give. i presented to him my mission, and he seemed embarrassed. "i am with you, of course. my mother was a methodist, and all my sympathies are with the methodist church. i am a southern man in all my convictions and impulses, and i am a southern methodist in principle. but you see, sir, i am a candidate for united states senator, and sectional feeling is likely to enter into the contest, and if it were known that my name was on your list of subscribers, it might endanger my election." he squeezed my arm, told me he loved me and my church, said he would be happy to see me often, and so forth--but he did not give me his name. i left him, saying in my heart, here is a politician. going on together, in the corridor we met gwin. solomon introduced me, and told him my business. "i am glad to know that you are going to start a southern methodist newspaper. no church can do without its organ. put me down on your list, and come with me, and i will make all these fellows subscribe. there is not much religion among them, i fear, but we will make them take the paper." this was said in a hearty and pleasant way, and he took me from man to man, until i had gotten more than a dozen names, among them two or three of his most active political opponents. this incident exhibits the two types of the politician, and the two classes of men to be found in all communities--the one all "blarney" and selfishness, the other with real manhood redeeming poor human nature, and saving it from utter contempt. the senatorial prize eluded the grasp of both aspirants, but the reader will not be at a loss to guess whose side i was on. dr. gwin made a friend that day, and never lost him. it was this sort of fidelity to friends that, when fortune frowned on the grand old senator after the collapse at appomattox, rallied thousands of true hearts to his side, among whom were those who had fought him in many a fierce political battle. broderick and gwin were both, by a curious turn of political fortune, elected by the same legislature to the united states senate. broderick sleeps in lone mountain, and gwin still treads the stage of his former glory, a living monument of the days when california politics was half romance and half tragedy. the friend and protege of general andrew jackson, a member of the first constitutional convention of california, twice united states senator, a prominent figure in the civil war, the father of the great pacific railway, he is the front figure on the canvas of california history. gwin was succeeded by mcdougall. what a man was he! his face was as classic as a greek statue. it spoke the student and the scholar in every line. his hair was snow-white, his eyes bluish gray, and his form sinewy and elastic. he went from illinois, with baker and other men of genius, and soon won a high place at the bar of san francisco. i heard it said, by an eminent jurist, that when mcdougall had put his whole strength into the examination of a case, his side of it was exhausted. his reading was immense, his learning solid. his election was doubtless a surprise to himself as well as to the california public. the day before he left for washington city, i met him in the street, and as we parted i held his hand a moment, and said: "your friends will watch your career with hope and with fear." he knew what i meant, and said, quickly: "i understand you. you are afraid that i will yield to my weakness for strong drink. but you may be sure i will play the man, and california shall have no cause to blush on my account." that was his fatal weakness. no one, looking upon his pale, scholarly face, and noting his faultlessly neat apparel, and easy, graceful manners, would have thought of such a thing. yet he was a--i falter in writing it--a drunkard. at times he drank deeply and madly. when half intoxicated he was almost as brilliant as hamlet, and as rollicking as falstaff. it was said that even when fully drunk his splendid intellect never entirely gave way. "mcdougall commands as much attention in the senate when drunk as any other senator does when sober," said a congressman in washington in . it is said that his great speech on the question of "confiscation," at the beginning of the war, was delivered when he was in a state of semi-intoxication. be that as it may, it exhausted the whole question, and settled the policy of the government. "no one will watch your senatorial career with more friendly interest than myself; and if you will abstain wholly from all strong drink, we shall all, be proud of you, i know." "not a drop will i touch, my friend; and i'll make you proud of me." he spoke feelingly, and i think there was a moisture about his eye as he pressed my hand and walked away. i never saw him again. for the first few months he wrote to me often, and then his letters came at longer intervals, and then they ceased. and then the newspapers disclosed the shameful secret california's brilliant senator was a drunkard. the temptations of the capital were too strong for him. he went down into the black waters a complete wreck. he returned to the old home of his boyhood in new jersey to die. i learned that he was lucid and penitent at the last. they brought his body back to san francisco to be buried, and when at his funeral the words "i know that my redeemer liveth," in clear soprano, rang through the vaulted cathedral like a peal of triumph, i indulged the hope that the spirit of my gifted and fated friend had, through the mercy of the friend of sinners, gone from his boyhood hills up to the hills of god. the typical california politician was coffroth. the "boys" fondly called him "jim" coffroth. there is no surer sign of popularity than a popular abbreviation of this sort, unless it is a pet nickname. coffroth was from pennsylvania, where he had gained an inkling of polities and general literature. he gravitated into california polities by the law of his nature. he was born for this, having what a friend calls the gift of popularity. his presence was magnetic; his laugh was contagious; his enthusiasm irresistible. nobody ever thought of taking offense at jim coffroth. he could change his politics with impunity without losing a friend--he never had a personal enemy; but i believe he only made that experiment once. he went off with the know-nothings in , and was elected by them to the state senate, and was called to preside over their state convention. he hastened back to his old party associates, and at the first convention that met in his county on his return from the legislature, he rose and told them how lonesome he had felt while astray from the old fold, how glad he was to get back, and how humble he felt, concluding by advising all his late supporters to do as he had done by taking "a straight chute" for the old party. he ended amid a storm of applause, was reinstated at once, and was made president of the next democratic state convention. there he was in his glory. his tact and good humor were infinite, and he held those hundreds of excitable and explosive men in the hollow of his hand. he would dismiss a dangerous motion with a witticism so apt that the mover himself would join in the laugh, and give it up. his broad face in repose was that of a quaker, at other times that of a bacchus. there was a religious streak in this jolly partisan, and he published several poems that breathed the sweetest and loftiest religious sentiment. the newspapers were a little disposed to make a joke of these ebullitions of devotional feeling, but they now make the light that casts a gleam of brightness upon the background of his life. i take from an old volume of the christian spectator one of these poems as a literary curiosity. every man lives two lives. the rollicking politician, "jim coffroth," every californian knew; the author of these lines was another man by the same name: amid the silence of the night. "behold, he that keepeth israel shall neither slumber nor sleep." psalm cxxi. amid the silence of the night, amid its lonely hours and dreary, when we close the aching sight, musing sadly, lorn and weary, trusting that tomorrow's light may reveal a day more cheery; amid affliction's darker hour, when no hope beguiles our sadness, when death's hurtling tempests lower, and forever shroud our gladness, while grief's unrelenting power goads our stricken hearts to madness; when from friends beloved we're parted, and from scenes our spirits love, and are driven, broken-hearted, o'er a heartless world to rove; when the woes by which we've smarted, vainly seek to melt or move; when we trust and are deluded, when we love and are denied, when the schemes o'er which we brooded burst like mist on mountain's side, and, from every hope excluded, we in dark despair abide; then, and ever, god sustains us, he whose eye no slumber knows, who controls each throb that pains us, and in mercy sends our woes, and by love severe constrains us to avoid eternal throes. happy he whose heart obeys him! lost and ruined who disown! o if idols e'er displace him, tear them from his chosen throne! may our lives and language praise him! may our hearts be his alone! he took defeat with a good nature that robbed it of its sting, and made his political opponents half sorry for having beaten him. he was talked of for governor at one time, and he gave as a reason, why he would like the office that "a great many of his friends were in the state-prison, and he wanted to use the pardoning power in their behalf." this was a jest, of course, referring to the fact that as a lawyer much of his practice was in the criminal courts. he was never suspected of treachery or dishonor in public or private life. his very ambition was unselfish: he was always ready to sacrifice himself in a hopeless candidacy if he could thereby help his party or a friend. his good nature was tested once while presiding over a party convention at sonora for the nomination of candidates for legislative and county offices. among the delegates was the eccentric john vallew, whose mind was a singular compound of shrewdness and flightiness, and was stored with the most out-of-the-way scraps of learning, philosophy, and poetry. some one proposed vallew's name as a candidate for the legislature. he rose to his feet with a clouded face, and in an angry voice said: "mr. president, i am surprised and mortified. i have lived in this county more than seven years, and i have never had any difficulty with my neighbors. i did not know that i had an enemy in the world. what have i done, that it should be proposed to send me to the legislature? what reason has anybody to think i am that sort of a man? to think i should have come to this! to propose to send me to the legislature, when it is a notorious fact that you have never sent a man thither from this county who did not come back morally and pecuniarily ruined!" the crowd saw the point, and roared with laughter, coffroth, who had served in the previous session, joining heartily in the merriment. vallew was excused. coffroth grew fatter and jollier; his strong intellect struggled against increasing sensual tendencies. what the issue might have been, i know not. he died suddenly, and his destiny was transferred to another sphere. so there dropped out of california-life a partisan without bitterness, a satirist without malice, a wit without a sting, the jolliest, freest, readiest man that ever faced a california audience on the hustings--the typical politician of california. old man lowry. i had marked his expressive physiognomy among my hearers in the little church in sonora for some weeks before he made himself known to me. as i learned afterward, he was weighing the young preacher in his critical balances. he had a shrewd scotch face, in which there was a mingling of keenness, benignity, and humor. his age might be sixty, or it might be more. he was an old bachelor, and wide guesses are sometimes made as to the ages of that class of men. they may not live longer than married men, but they do not show the effects of life's wear and tear so early. he came to see us one evening. he fell in love with the mistress of the parsonage, just as he ought to have done, and we were charmed with the quaint old bachelor. there was a piquancy, a sharp flavor, in his talk that was delightful. his aphorisms often crystallized a neglected truth in a form all his own. he was an original character. there was nothing commonplace about him. he had his own way of saying and doing every thing. society in the mines was limited in that day, and we felt that we had found a real thesaurus in this old man of unique mold. his visits were refreshing to us, and his plain-spoken criticisms were helpful to me. he had left the church because he did not agree with the preachers on some points of christian ethics, and because they used tobacco. but he was unhappy on the outside, and finding that my views and habits did not happen to cross his peculiar notions, he came back. his religious experience was out of the common order. bred a calvinist, of the good old scotch-presbyterian type, he had swung away from that faith, and was in danger of rushing into universalism, or infidelity. that once famous and much-read little book, "john nelson's journal," fell into his hands, and changed his whole life. it led him to christ, and to the methodists. he was a true spiritual child of the unflinching yorkshire stone-cutter. like him he despised half-way measures, and like him he was aggressive in thought and action. what he liked he loved, what he disliked he hated. calvinism he abhorred, and he let no occasion pass for pouring into it the hot shot of his scorn and wrath. one night i preached from the text, should it be according to thy mind? "the first part of your sermon," he said to me as we passed out of the church, "distressed me greatly. for a full half hour you preached straight out calvinism, and i thought you had ruined every thing; but you had left a little slip-gap, and crawled out at the last." his ideal of a minister of the gospel was dr. keener, whom he knew at new orleans before coming to california. he was the first man i ever heard mention dr. keener's name for the episcopacy. there was much in common between them. if my eccentric california bachelor friend did not have as strong and cool a head, he had as brave and true a heart as the incisive and chivalrous louisiana preacher, upon whose head the miter was placed by the suffrage of his brethren at memphis in . he became very active as a worker in the church. i made him class-leader, and there have been few in that office who brought to its sacred duties as much spiritual insight, candor, and tenderness. at times his words flashed like diamonds, showing what the bible can reveal to a solitary thinker who makes it his chief study day and night. when needful, he could apply caustic that burned to the very core of an error of opinion or of practice. he took a class in the sunday-school, and his freshness, acuteness, humor, and deep knowledge of the scriptures, made him far more than an ordinary teacher. a fine pocket bible was offered as a prize to the scholar who should, in three months, memorize the greatest number of scripture verses. the wisdom of such a contest is questionable to me now, but it was the fashion then, and i was too young and self-distrustful to set myself against the current in such matters. the contest was an exciting one--two boys, robert a--and jonathan r--, and one girl, annie p--, leading all the school. jonathan suddenly fell behind, and was soon distanced by his two competitors. lowry, who was his teacher, asked him what was the reason of his sudden breakdown. the boy blushed, and stammered out: "i didn't want to beat annie." robert won the prize, and the day came for its presentation. the house was full, and everybody was in a pleasant mood. after the prize had been presented in due form and with a little flourish, lowry arose, and producing a costly bible, in a few words telling how magnanimously and gallantly jonathan had retired from the contest, presented it to the pleased and blushing boy. the boys and girls applauded california fashion, and the old man's face glowed with satisfaction. he had in him curiously mingled the elements of the puritan and the cavalier--the uncompromising persistency of the one, and the chivalrous impulse and openhandedness of the other. the old man had too many crotchets and too much combativeness to be popular. he spared no opinion or habit he did not like. he struck every angle within reach of him. in the state of society then existing in the mines there were many things to vex his soul, and keep him on the warpath. the miners looked upon him as a brave, good man, just a little daft. he worked a mining-claim on wood's creek, north of town, and lived alone in a tiny cabin on the hill above. that was the smallest of cabins, looking like a mere box from the trail which wound through the flat below. two little scrub-oaks stood near it, under which he sat and read his bible in leisure moments. there, above the world, he could commune with his own heart and with god undisturbed, and look down upon a race he half pitied and half despised. from the spot the eye took in a vast sweep of hill and dale: bald mountain, the most striking object in the near background, and beyond its dark, rugged mass the snowy summits of the sierras, rising one above another, like gigantic stair-steps, leading up to the throne of the eternal. this lonely height suited lowry's strangely compounded nature. as a cynic, he looked down with contempt upon the petty life that seethed and frothed in the camps below; as a saint, he looked forth upon the wonders of god's handiwork around and above him. there was an intensity in all that he did. passing his mining-claim on horseback one day, i paused to look at him in his work. clad in a blue flannel mining-suit, he was digging as for life. the embankment of red dirt and gravel melted away rapidly before his vigorous strokes, and he seemed to feel a sort of fierce delight in his work. pausing a moment, he looked up and saw me. "you dig as if you were in a hurry," i said. "yes, i have been digging here three years. i have a notion that i have just so much of the earth to turn over before i am turned under," he replied with a sort of grim humor. he was still there when we visited sonora in . he invited us out to dinner, and we went. by skillful circling around the hill, we reached the little cabin on the summit with horse and buggy. the old man had made preparations for his expected guests. the floor of the cabin had been swept, and its scanty store of furniture put to rights, and a dinner was cooking in and on the little stove. his lady-guest insisted on helping in the preparation of the dinner, but was allowed to do nothing further than to arrange the dishes on the primitive table, which was set out under one of the little oaks in the yard. it was a miner's feast--can-fruits, can-vegetables, can-oysters, can-pickles, can-every thing nearly, with tea distilled from the asiatic leaf by a receipt of his own. it was a hot day, and from the cloudless heavens the sun flooded the earth with his glory, and the shimmer of the sunshine was in the still air. we tried to be cheerful, but there was a pathos about the affair that touched us. he felt it too. more than once there was a tear in his eye. at parting, he kissed little paul, and gave us his hand in silence. as we drove down the hill, he stood gazing after us with a look fixed and sad. the picture is till before me the lonely old man standing sad and silent, the little cabin, the rude dinner-service under the oak, and the overarching sky. that was our last meeting. the next will be on the other side. suicide in california. a half protest rises within me as i begin this sketch. the page almost turns crimson under my gaze, and shadowy forms come forth out of the darkness into which they wildly plunged out of life's misery into death's mystery. ghostly lips cry out, "leave us alone! why call us back to a world where we lost all, and in quitting which we risked all? disturb us not to gratify the cold curiosity of unfeeling strangers. we have passed on beyond human jurisdiction to the realities we dared to meet. give us the pity and courtesy of your silence, o living brother, who didst escape the wreck!" the appeal is not without effect, and if i lift the shroud that covers the faces of these dead self-destroyed, it will be tenderly, pityingly. these simple sketches of real california life would be imperfect if this characteristic feature were entirely omitted; for california was (and is yet) the land of suicides. in a single year there were one hundred and six in san francisco alone. the whole number of suicides in the state would, if the horror of each case could be even imperfectly imagined, appall even the dryest statistician of crime. the causes for this prevalence of self-destruction are to be sought in the peculiar conditions of the country, and the habits of the people. california, with all its beauty, grandeur, and riches, has been to the many who have gone thither a land of great expectations, but small results. this was specially the case in the earlier period of its history, after the discovery of gold and its settlement by "americans," as we call ourselves, par excellence. hurled from the topmost height of extravagant hope to the lowest deep of disappointment, the shock is too great for reaction; the rope, razor, bullet, or deadly drug, finishes the tragedy. materialistic infidelity in california is the avowed belief of multitudes, and its subtle poison infects the minds and unconsciously the actions of thousands who recoil from the dark abyss that yawns at the feet of its adherents with its fascination of horror. under some circumstances, suicide becomes logical to a man who has neither hope nor dread of a hereafter. sins against the body, and especially the nervous system, were prevalent; and days of pain, sleepless nights, and weakened wills, were the precursors of the tragedy that promised change, if not rest. the devil gets men inside a fiery circle, made by their own sin and folly, from which there seems to be no escape but by death, and they will unbar its awful door with their own trembling hands. there is another door of escape for the worst and most wretched, and it is opened to the penitent by the hand that was nailed to the rugged cross. these crises do come, when the next step must be death or life-penitence or perdition. do sane men and women ever commit suicide? yes--and, no. yes, in the sense that they sometimes do it with even pulse and steady nerves. no, in the sense that there cannot be perfect soundness in the brain and heart of one who violates a primal instinct of human nature. each case has its own peculiar features, and must be left to the all-seeing and all-pitying father. suicide, where it is not the greatest of crimes, is the greatest of misfortunes. the righteous judge will classify its victims. a noted case in san francisco was that of a french catholic priest. he was young, brilliant, and popular--beloved by his flock, and admired by a large circle outside. he had taken the solemn vows of his order in all sincerity of purpose, and was distinguished as well for his zeal in his pastoral work as for his genius. but temptation met him, and he fell. it came in the shape in which it assailed the young hebrew in potiphar's house, and in which it overcame the poet-king of israel. he was seized with horror and remorse, though he had no accuser save that voice within, which cannot be hushed while the soul lives. he ceased to perform the sacred functions of his office, making some plausible pretext to his superiors, not daring to add sacrilege to mortal sin. shutting himself in his chamber, he brooded over his crime; or, no longer able to endure the agony he felt, he would rush forth, and walk for hours over the sand-dunes, or along the sea-beach. but no answer of peace followed his prayers, and the voices of nature soothed him not. he thought his sin unpardonable--at least, he would not pardon himself. he was found one morning lying dead in his bed in a pool of blood. he had severed the jugular-vein with a razor, which was still clutched in his stiffened fingers. his handsome and classic face bore no trace of pain. a sealed letter, lying on the table, contained his confession and his farewell. among the lawyers in one of the largest mining towns of california was h. b--. he was a native of virginia, and an alumnus of its noble university. he was a scholar, a fine lawyer, handsome and manly in person and bearing, and had the gift of popularity. though the youngest lawyer in the town, he took a front place at the bar at once. over the heads of several older aspirants, he was elected county judge. there was no ebb in the tide of his general popularity, and he had qualities that won the warmest regard of his inner circle of special friends. but in this case, as in many others, success had its danger. hard drinking was the rule in those days. horace b--had been one of the rare exceptions. there was a reason for this extra prudence. he had that peculiar susceptibility to alcoholic excitement which has been the ruin of so many gifted and noble men. he knew his weakness, and it is strange that he did not continue to guard against the danger that he so well understood. strange? no; this infatuation is so common in everyday life that we cannot call it strange. there is some sort of fatal fascination that draws men with their eyes wide open into the very jaws of this hell of strong drink. the most brilliant physician in san francisco, in the prime of his magnificent young manhood, died of delirium tremens, the victim of a self-inflicted disease, whose horrors no one knew or could picture so well as himself. who says man is not a fallen, broken creature, and that there is not a devil at hand to tempt him? this devil, under the guise of sociability, false pride, or moral cowardice, tempted horace b--, and he yielded. like tinder touched by flame, he blazed into drunkenness, and again and again the proud-spirited, manly, and cultured young lawyer and jurist was seen staggering along the streets, maudlin or mad with alcohol. when he had slept off his madness, his humiliation was intense, and he walked the streets with pallid face and downcast eyes. the coarser-grained men with whom he was thrown in contact had no conception of the mental tortures he suffered, and their rude jests stung him to the quick. he despised himself as a weakling and a coward, but he did not get more than a transient victory over his enemy. the spark had struck a sensitive organization, and the fire of hell, smothered for the time, would blaze out again. he was fast becoming a common drunkard, the accursed appetite growing stronger, and his will weakening in accordance with that terrible law by which man's physical and moral nature visits retribution on all who cross its path. during a term of the court over which he presided, he was taken home one night drunk. a pistol-shot was heard by persons in the vicinity some time before daybreak; but pistol-shots, at all hours of the night, were then too common to excite special attention. horace b--was found next morning lying on the floor with a bullet through his head. many a stout, heavy-bearded man had, wet eyes when the body of the ill-fated and brilliant young virginian was let down into the grave, which had been dug for him on the hill overlooking the town from the south-east. in the same town there was a portrait-painter, a quiet, pleasant fellow, with a good face and easy, gentlemanly ways. as an artist, he was not without merit, but his gift fell short of genius. he fell in love with a charming girl, the eldest daughter of a leading citizen. she could not return his passion. the enamored artist still loved, and hoped against hope, lingering near her like a moth around a candle. there was another and more favored suitor in the case, and the rejected lover had all his hopes killed at one blow by her marriage to his rival. he felt that without her life was not worth living. he resolved to kill himself, and swallowed the contents of a two-ounce bottle of laudanum. after he had done the rash deed, a reaction took place. he told what he had done, and a physician was sent for. before the doctor's arrival, the deadly drug asserted its power, and this repentant suicide began to show signs of going into a sleep from which it was certain he would never awake. "my god! what have i done?" he exclaimed in horror. "do your best, boys, to keep me from going to sleep before the doctor gets here." the doctor came quickly, and by the prompt and very vigorous use of the stomach-pump he was saved. i was sent for, and found the would-be suicide looking very weak, sick, silly, and sheepish. he got well, and went on making pictures; but the picture of the fair, sweet girl, for love of whom he came so near dying, never faded from his mind. his face always wore a sad look, and he lived the life of a recluse, but he never attempted suicide again--he had had enough of that. "it always makes me shudder to look at that place," said a lady, as we passed an elegant cottage on the western side of russian hill, san francisco. "why so? the place to me looks specially cheerful and attractive, with its graceful slope, its shrubbery, flowers, and thick greensward." "yes, it is a lovely place, but it has a history that it shocks me to think of. do you see that tall pumping-apparatus, with water-tank on top, in the rear of the house?" "yes; what of it?" "a woman hanged herself there a year ago. the family consisted of the husband and wife, and two bright, beautiful children. he was thrifty and prosperous, she was an excellent housekeeper, and the children were healthy and well-behaved. in appearance a happier family could not be found on the hill. one day mr. p--came home at the usual hour, and, missing the wife's customary greeting, he asked the children where she was. the children had not seen their mother for two or three hours, and looked startled when they found she was missing. messengers were sent to the nearest neighbors to make inquiries, but no one had seen her. mr. p ----'s face began to wear a troubled look as he walked the floor, from time to time going to the door and casting anxious glances about the premises. "about dusk a sudden shriek was heard, issuing from the water-tank in the yard, and the irish servant-girl came rushing from it, with eyes distended and face pale with terror. "holy mother of god! it's the missus that's hanged herself!" the alarm spread, and soon a crowd, curious and sympathetic, had collected. they found the poor lady suspended by the neck from a beam at the head of the staircase leading to the top of the inclosure. she was quite dead, and a horrible sight to see. at the inquest no facts were developed throwing any light on the tragedy. there had been no cloud in the sky portending the lightning stroke that laid the happy little home in ruins. the husband testified that she was as bright and happy the morning of the suicide as he had ever seen her, and had parted with him at the door with the usual kiss. every thing about the house that day bore the marks of her deft and skillful touch. the two children were dressed with accustomed neatness and, good taste. and yet the bolt was in the cloud, and it fell before the sun had set! what was the mystery? ever afterward i felt something of the feeling expressed by my lady friend when, in passing, i looked upon the structure which had been the scene of this singular tragedy. one of the most energetic business men living in one of the foothill towns, on the northern edge of the sacramento valley, had a charming wife, whom he loved with a deep and tender devotion. as in all true love-matches, the passion of youth had ripened into a yet stronger and purer love with the lapse of years and participation in the joys and sorrows of wedded life. their union had been blessed with five children, all intelligent, sweet, and full of promise. it was a very affectionate and happy household. both parents possessed considerable literary taste and culture, and the best books and current magazine literature were read, discussed, and enjoyed in that quiet and elegant home amid the roses and evergreens. it was a little paradise in the hills, where love, the home-angel, brightened every room and blessed every heart. but trouble came in the shape of business reverses; and the worried look and wakeful nights of the husband told how heavy were the blows that had fallen upon this hard and willing worker. the course of ruin in california was fearfully rapid in those days. when a man's financial supports began to give way, they went with a crash. the movement downward was with a rush that gave no time for putting on the brakes. you were at the bottom, a wreck, almost before you knew it. so it was in this case. every thing was swept away, a mountain of unpaid debts was piled up, credit was gone, clamor of creditors deafened him, and the gaunt wolf of actual want looked in through the door of the cottage upon the dear wife and little ones. another shadow, and a yet darker one, settled upon them. the unhappy man had been tampering with the delusion of spiritualism, and his wife had been drawn with him into a partial belief in its vagaries. in their troubles they sought the aid of the "familiar spirits" that peeped and muttered through speaking, writing, and rapping mediums. this kept them in a state of morbid excitement that increased from day to day until they were wrought up to a tension that verged on insanity. the lying spirits; or the frenzy of his own heated brain, turned his thought to death as the only escape from want. "i see our way out of these troubles, wife," he said one night, as they sat hand in hand in the bedchamber, where the children were lying asleep. "we will all die together! this has been revealed to me as the solution of all our difficulties. yes, we will enter the beautiful spirit-world together! this is freedom! it is only getting out of prison. bright spirits beckon and call us. i am ready." there was a gleam of madness in his eyes, and, as he took a pistol from a bureau-drawer, an answering gleam flashed forth from the eyes of the wife, as she said: "yes, love, we will all go together. i too am ready." the sleeping children were breathing sweetly, unmindful of the horror that the devil was hatching. "the children first, then you, and then me," he said, his eye kindling with increasing excitement. he penciled a short note addressed to one of his old friends, asking him to attend to the burial of the bodies, then they kissed each of the sleeping children, and then--but let the curtain fall on the scene that followed. the seven were found next day lying dead, a bullet through the brain of each, the murderer, by the side of the wife, still holding the weapon of death in his hand, its muzzle against his right temple. other pictures of real life and death crowd upon, my mind, among them noble forms and faces that were near and dear to me; but again i hear the appealing voices. the page before me is wet with tears--i cannot see to write. father fisher. he came to california in . the pacific conference was in session at sacramento. it was announced that the new preacher from texas would preach at night. the boat was detained in some way, and he just had time to reach the church, where a large and expectant congregation were in waiting. below medium height, plainly dressed, and with a sort of peculiar shuffling movement as he went down the aisle, he attracted no special notice except for the profoundly reverential manner that never left him anywhere. but the moment he faced his audience and spoke, it was evident to them that a man of mark stood before them. they were magnetized at once, and every eye was fixed upon the strong yet benignant face, the capacious blue eyes, the ample forehead, and massive head, bald on top, with silver locks on either side. his tones in reading the scripture and the hymns were unspeakably solemn and very musical. the blazing fervor of the prayer that followed was absolutely startling to some of the preachers, who had cooled down under the depressing influence of the moral atmosphere of the country. it almost seemed as if we could hear the rush of the pentecostal wind, and see the tongues of flame. the very house seemed to be rocking on its foundations. by the time the prayer had ended, all were in a glow, and ready for the sermon. the text i do not now call to mind, but the impression made by the sermon remains. i had seen and heard preachers who glowed in the pulpit--this man burned. his words poured forth in a molten flood, his face shone like a furnace heated from within, his large blue eyes flashed with the lightning of impassioned sentiment, and anon swam in pathetic appeal that no heart could resist. body, brain, and spirit, all seemed to feel the mighty afflatus. his very frame seemed to expand, and the little man who had gone into the pulpit with shuffling step and downcast eyes was transfigured before us. when, with radiant face, upturned eyes, an upward sweep of his arm, and trumpet-voice, he shouted, "hallelujah to god!" the tide of emotion broke over all barriers, the people rose to their feet, and the church reechoed with their responsive hallelujahs. the new preacher from texas that night gave some californians a new idea of evangelical eloquence, and took his place as a burning and a shining light among the ministers of god on the pacific coast. "he is the man we want for san francisco!" exclaimed the impulsive b. t. crouch, who had kindled into a generous enthusiasm under that marvelous discourse. he was sent to san francisco. he was one of a company of preachers who have successively had charge of the southern methodist church in that wondrous city inside the golden gate--boring, evans, fisher, fitzgerald, gober, brown, bailey, wood, miller, ball, hoss, chamberlin, mahon, tuggle, simmons, henderson. there was an almost unlimited diversity of temperament, culture, and gifts among these men; but they all had a similar experience in this, that san francisco gave them new revelations of human nature and of themselves. some went away crippled and scarred, some sad, some broken; but perhaps in the great day it may be found that for each and all there was a hidden blessing in the heart-throes of a service that seemed to demand that they should sow in bitter tears, and know no joyful reaping this side of the grave. o my brothers, who have felt the fires of that furnace heated seven times hotter than usual, shall we not in the resting-place beyond the river realize that these fires burned out of us the dross that we did not know was in our souls? the bird that comes out of the tempest with broken wing may henceforth take a lowlier flight, but will be safer because it ventures no more into the region of storms. fisher did not succeed in san francisco, because he could not get a hearing. a little handful would meet him on sunday mornings in one of the upper-rooms of the old city hall, and listen to sermons that sent them away in a religious glow, but he had no leverage for getting at the masses. he was no adept in the methods by which the modern sensational preacher compels the attention of the novelty-loving crowds in our cities. an evangelist in every fiber of his being, he chafed under the limitations of his charge in san francisco, and from time to time he would make a dash into the country, where, at camp-meetings and on other special occasions, he preached the gospel with a power that broke many a sinner's heart, and with a persuasiveness that brought many a wanderer back to the good shepherd's fold. his bodily energy, like his religious zeal, was unflagging. it seemed little less than a miracle that he could, day after day, make such vast expenditure of nervous energy without exhaustion. he put all his strength into every sermon and exhortation, whether addressed to admiring and weeping thousands at a great camp-meeting, or to a dozen or less "standbys" at the saturday-morning service of a quarterly-meeting. he had his trials and crosses. those who knew him intimately learned to expect his mightiest pulpit efforts when the shadow on his face and the unconscious sigh showed that he was passing through the waters and crying to god out of the depths. in such experiences, the strong man is revealed and gathers new strength; the weak one goes under. but his strength was more than mere natural force of will, it was the strength of a mighty faith in god--that unseen force by which the saints work righteousness, subdue kingdoms, escape the violence of fire, and stop the mouths of lions. as a flame of fire, fisher itinerated all over california and oregon, kindling a blaze of revival in almost every place he touched. he was mighty in the scriptures, and seemed to know the book by heart. his was no rose-water theology. he believed in a hell, and pictured it in bible language with a vividness and awfulness that thrilled the stoutest sinner's heart; he believed in heaven, and spoke of it in such a way that it seemed that with him faith had already changed to sight. the gates of pearl, the crystal river, the shining ranks of the white-robed throngs, their songs swelling as the sound of many waters, the holy love and rapture of the glorified hosts of the redeemed, were made to pass in panoramic procession before the listening multitudes until the heaven he pictured seemed to be a present reality. he lived in the atmosphere of the supernatural; the spirit-world was to him most real. "i have been out of the body," he said to me one day. the words were spoken softly, and his countenance, always grave in its aspect, deepened in its solemnity of expression as he spoke. "how was that?" i inquired. "it was in texas. i was returning from a quarterly-meeting where i had preached one sunday morning with great liberty and with unusual effect. the horses attached to my vehicle became frightened, and ran away. they were wholly beyond control, plunging down the road at a fearful speed, when, by a slight turn to one side, the wheel struck a large log. there was a concussion, and then a blank. the next thing i knew i was floating in the air above the road. i saw every thing as plainly as i see your face at this moment. there lay my body in the road, there lay the log, and there were the trees, the fence, the fields, and every thing, perfectly natural. my motion, which had been upward, was arrested, and as, poised in the air, i looked at my body lying there in the road so still, i felt a strong desire to go back to it, and found myself sinking toward it. the next thing i knew i was lying in the road where i had been thrown out, with a number of friends about me, some holding up my head, others chafing my hands, or looking on with pity or alarm. yes, i was out of the body for a little, and i know there is a spirit-world." his voice had sunk into a sort of whisper, and the tears were in his eyes. i was strangely thrilled. both of us were silent for a time, as if we heard the echoes of voices, and saw the beckonings of shadowy hands from that other world which sometimes seems so far away, and yet is so near to each one of us. surely you heaven, where angels see god's face, is not so distant as we deem from this low earth. 'tis but a little space, 'tis but a veil the winds might blow aside; yes, this all that us of earth divide from the bright dwellings of the glorified, the land of which i dream. but it was no dream to this man of mighty faith, the windows of whose soul opened at all times godward. to him immortality was a demonstrated fact, an experience. he had been out of the body. intensity was his dominating quality. he wrote verses, and whatever they may have lacked of the subtle element that marks poetical genius, they were full of his ardent personality and devotional abandon. he compounded medicines whose virtues, backed by his own unwavering faith, wrought wondrous cures. on several occasions he accepted challenge to polemic battle, and his opponents found in him a fearless warrior, whose onset was next to irresistible. in these discussions it was no uncommon thing for his arguments to close with such bursts of spiritual power that the doctrinal duel would end in a great religious excitement, bearing disputants and hearers away on mighty tides of feeling that none could resist. i saw in the texas christian advocate an incident, related by dr. f. a. mood, that gives a good idea of what fisher's eloquence was when in full tide: "about ten years ago," says dr. m., "when the train from houston, on the central railroad, on one occasion reached hempstead, it was peremptorily brought to a halt. there was a strike among the employees of the road, on what was significantly called by the strikers 'the death-warrant.' the road, it seems, had required all of their employees to sign a paper renouncing all claims to moneyed reparation in case of their bodily injury while in the service of the road. the excitement incident to a strike was at its height at hempstead when our train reached there. the tracks were blocked with trains that had been stopped as they arrived from the different branches of the road, and the employees were gathered about in groups, discussing the situation--the passengers peering around with hopeless curiosity. when our train stopped, the conductor told us that we would have to lie over all night, and many of the passengers left to find accommodations in the hotels of the town. it was now night, when a man came into the car and exclaimed, 'the strikers are tarring and feathering a poor wretch out here, who has taken sides with the road--come out and see it!' nearly every one in the car hastened out. i had risen, when a gentleman behind me gently pulled my coat, and said to me, 'sit down a moment.' he went on to say: 'i judge, sir, you are a clergyman; and i advise you to remain here. you may be put to much inconvenience by having to appear as a witness; in a mob of that sort, too, there is no telling what may follow.' i thanked him, and resumed my seat. he then asked me to what denomination i belonged, and upon my telling him i was a methodist preacher, he asked eagerly and promptly if i had ever met a methodist preacher in texas by the name of fisher, describing accurately the appearance of our glorified brother. upon my telling him i knew him well, he proceeded to give the following incident. i give it as nearly as i can in his own words. said he: "'i am a californian, have practiced law for years in that state, and, at the time i allude to, was district judge. i was holding court at [i cannot now recall the name of the town he mentioned], and on saturday was told that a methodist camp-meeting was being held a few miles from town. i determined to visit it, and reached the place of meeting in good time to hear the great preacher of the occasion--father fisher. the meeting was held in a river canyon. the rocks towered hundreds of feet on either side, rising over like an arch. through the ample space over which the rocks hung the river flowed, furnishing abundance of cool water, while a pleasant breeze fanned a shaded spot. a great multitude had assembled--hundreds of very hard cases, who had gathered there, like myself, for the mere novelty of the thing. i am not a religious man --never have been thrown under religious influences. i respect religion, and respect its teachers, but have been very little in contact with religious things. at the appointed time, the preacher rose. he was small, with white hair combed back from his forehead, and he wore a venerable beard. i do not know much about the bible, and i cannot quote from his text, but he preached on the judgment. i tell you, sir, i have heard eloquence at the bar and on the hustings, but i never heard such eloquence as that old preacher gave us that day. at the last, when he described the multitudes calling on the rocks and mountains to fall on them, i instinctively looked up to the arching rocks above me. will you believe it, sir?--as i looked up, to my horror i saw the walls of the canyon swaying as if they were coming together! just then the preacher called on all that needed mercy to kneel down. i recollect he said something like this: "'every knee shall bow, and every tongue shall confess;' and you might as well do it now as then." the whole multitude fell on their knees--every one of them. although i had never done so before, i confess to you, sir, i got down on my knees. i did not want to be buried right then and there by those rocks that seemed to be swaying to destroy me. the old man prayed for us; it was a wonderful prayer! i want to see him once more; where will i be likely to find him?' "when he had closed his narrative, i said to him: 'judge, i hope you have bowed frequently since that day.' 'alas! no, sir,' he replied; 'not much; but depend upon it, father fisher is a wonderful orator--he made me think that day that the walls of the canyon were falling.'" he went back to texas, the scene of his early labors and triumphs, to die. his evening sky was not cloudless--he suffered much--but his sunset was calm and bright; his waking in the morning land was glorious. if it was at that short period of silence spoken of in the apocalypse, we may be sure it was broken when fisher went in. jack white. the only thing white about him was his name. he was a piute indian, and piutes are neither white nor pretty. there is only one being in human shape uglier than a piute "buck"--and that is a piute squaw. one i saw at the sink of the humboldt haunts me yet. her hideous face, begrimed with dirt and smeared with yellow paint, bleared and leering eyes, and horrid long, flapping breasts--ugh! it was a sight to make one feel sick. a degraded woman is the saddest spectacle on earth. shakespeare knew what he was doing when he made the witches in macbeth of the feminine gender. but as you look at them you almost forget that these piute hags are women--they seem a cross between brute and devil. the unity of the human race is a fact which i accept; but some of our brothers and sisters are far gone from original loveliness. if eve could see these piute women, she would not be in a hurry to claim them as her daughters; and adam would feel like disowning some of his sons. as it appears to me, however, these repulsive savages furnish an argument in support of two fundamental facts of christianity. one fact is, god did indeed make of one blood all the nations of the earth; the other is the fact of the fall and depravity of the human race. this unspeakable ugliness of these indians is owing to their evil living. dirty as they are, the little indian children are not at all repulsive in expression. a boy of ten years, who stood half-naked, shivering in the wind, with his bow and arrows, had well-shaped features and a pleasant expression of countenance, with just a little of the look of animal cunning that belongs to all wild tribes. the ugliness grows on these indians fearfully fast when it sets in. the brutalities of the lives they lead stamp themselves on their faces; and no other animal on earth equals in ugliness the animal called man, when he is nothing but an animal. there was a mystery about jack white's early life. he was born in the sagebrush desert beyond the sierras, and, like all indian babies, doubtless had a hard time at the outset. a christian's pig or puppy is as well cared for as a piute papoose. jack was found in a deserted indian camp in the mountains. he had been left to die, and was taken charge of by the kind hearted john m. white, who was then digging for gold in the northern mines. he and his good christian wife had mercy on the little indian boy that looked up at them so pitifully with his wondering black eyes. at first he had the frightened and bewildered look of a captured wild creature, but he soon began to be more at ease. he acquired the english language slowly, and never did lose the peculiar accent of his tribe. the miners called him jack white, not knowing any other name for him. moving to the beautiful san ramon valley, not far from the bay of san francisco, the whites took jack with them. they taught him the leading doctrines and facts of the bible, and made him useful in domestic service. he grew and thrived. broad-shouldered, muscular, and straight as an arrow, jack was admired for his strength and agility by the white boys with whom he was brought into contact. though not quarrelsome, he had a steady courage that, backed by his great strength, inspired respect and insured good treatment from them. growing up amid these influences, his features were softened into a civilized expression, and his tawny face was not unpleasing. the heavy under-jaw and square forehead gave him an appearance of hardness which was greatly relieved by the honest look out of his eyes, and the smile which now and then would slowly creep over his face, like the movement of the shadow of a thin cloud on a calm day in summer. an indian smiles deliberately, and in a dignified way--at least jack did. i first knew jack at santa rosa, of which beautiful town his patron, mr. white, was then the marshal. jack came to my sunday-school, and was taken into a class of about twenty boys taught by myself. they were the noisy element of the school, ranging from ten to fifteen years of age --too large to show the docility of the little lads, but not old enough to have attained the self-command and self-respect that come later in life. though he was much older than any of them, and heavier than his teacher, this class suited jack. the white boys all liked him, and he liked me. we had grand times with that class. the only way to keep them in order was to keep them very busy. the plan of having them answer in concert was adopted with decided results. it kept them awake and the whole school with them, for california boys have strong lungs. twenty boys speaking all at once, with eager excitement and flashing eyes, waked the drowsiest drone in the room. a gentle hint was given now and then to take a little lower key. in these lessons, jack's deep guttural tones came in with marked effect, and it was delightful to see how he enjoyed it all. and the singing made his swarthy features glow with pleasure, though he rarely joined in it, having some misgiving as to the melody of his voice. the truths of the gospel took strong hold of jack's mind, and his inquiries indicated a deep interest in the matter of religion. i was therefore not surprised when, during a protracted-meeting in the town, jack became one of the converts; but there was surprise and delight among the brethren at the class-meeting when jack rose in his place and told what great thing the lord had done for him, dwelling with special emphasis on the words, "i am happy, because i know jesus takes my sins away--i know he takes my sins away." his voice melted into softness, and a tear trickled down his cheek as he spoke; and when dan duncan, the leader, crossed over the room and grasped his hand in a burst of joy, there was a glad chorus of rejoicing methodists over jack white, the piute convert. jack never missed a service at the church, and in the social-meetings he never failed to tell the story of his newborn joy and hope, and always with thrilling effect, as he repeated with trembling voice, "i am happy, because i know jesus takes my sins away." sin was a reality with jack, and the pardon of sin the most wonderful of all facts. he never tired of telling it; it opened a new world to him, a world of light and joy. jack white in the class-meeting or prayer-meeting, with beaming face, and moistened eyes, and softened voice, telling of the love of jesus, seemed almost of a different race from the wretched piutes of the sierras and sagebrush. jack's baptism was a great event. it was by immersion, the first baptism of the kind i ever performed--and almost the last. jack had been talked to on the subject by some zealous brethren of another "persuasion," who magnified that mode, and though he was willing to do as i advised in the matter, he was evidently a little inclined to the more spectacular way of receiving the ordinance. mrs. white suggested that it might save future trouble, and "spike a gun." so jack, with four others, was taken down to santa rosa creek, that went rippling and sparkling along the southern edge of the town, and duly baptized in the name of the father, and of the son, and of the holy ghost. a great crowd covered the bridge just below, and the banks of the stream; and when wesley mock, the asaph of santa rosa methodism, struck up-- o happy day that fixed my choice on thee, my saviour and my god, and the chorus-- happy day, happy day, when jesus washed my sins away, was swelled by hundreds of voices, it was a glad moment for jack white and all of us. religiously it was a warm time; but the water was very cold, it being one of the chilliest days i ever felt in that genial climate. "you were rather awkward, brother fitzgerald, in immersing those persons," said my stalwart friend, elder john mccorkle, of the "christian" or campbellite church, who had critically but not unkindly watched the proceedings from the bridge. "if you will send for me the next time, i will do it for you," he added, pleasantly. i fear it was awkwardly done, for the water was very cold, and a shivering man cannot be very graceful in his movements. i would have done better in a baptistery, with warm water and a rubber suit. but of all the persons i have welcomed into the church during my ministry, the reception of no one has given use more joy than that of jack white, the piute indian. jack's heart yearned for his own people. he wanted to tell them of jesus, who could take away their sins; and perhaps his indian instinct made him long for the freedom of the hills. "i am going to my people," he said to me; "i want to tell them of jesus. you will pray for me?" he added, with a quiver in his voice and a heaving chest. he went away, and i have never seen him since. where he is now, i know not. i trust i may meet him on mount sion, with the harpers harping with their harps, and singing, as it were, a new song before the throne. postscript.--since this sketch was penciled, the rev. c. y. rankin, in a note dated santa rosa, california, august , , says: "mrs. white asked me to send you word of the peaceful death of jack white (indian). he died trusting in jesus." the rabbi. seated in his library, enveloped in a faded figured gown, a black velvet cap on his massive head, there was an oriental look about him that arrested your attention at once. power and gentleness, childlike simplicity, and scholarliness, were curiously mingled in this man. his library was a reflex of its owner. in it were books that the great public libraries of the world could not match--black-letter folios that were almost as old as the printing art, illuminated volumes that were once the pride and joy of men who had been in their graves many generations, rabbinical lore, theology, magic, and great volumes of hebrew literature that looked, when placed beside a modern book, like an old ducal palace alongside a gingerbread cottage of today. i do not think he ever felt at home amid the hurry and rush of san francisco. he could not adjust himself to the people. he was devout, and they were intensely worldly. he thundered this sentence from the teacher's desk in the synagogue one morning: "o ye jews of san francisco, you have so fully given yourselves up to material things that you are losing the very instinct of immortality. your only idea of religion is to acquire the hebrew language, and you don't know that!" his port and voice were like those of one of the old hebrew prophets. elijah himself was not more fearless. yet, how deep was his love for his race! jeremiah was not more tender when he wept for the slain of the daughter of his people. his reproofs were resented, and he had a taste of persecution; but the jews of san francisco understood him at last. the poor and the little children knew him from the start. he lived mostly among his books, and in his school for poor children, whom he taught without charge. his habits were so simple and his bodily wants so few that it cost him but a trifle to live. when the synagogue frowned on him, he was as independent as elijah at the brook cherith. it is hard to starve a man to whom crackers and water are a royal feast. his belief in god and in the supernatural was startlingly vivid. the voice that spoke from sinai was still audible to him, and the arm that delivered israel he saw still stretched out over the nations. the miracles of the old testament were as real to him as the premiership of disraeli, or the financiering of the rothschilds. there was, at the same time, a vein of rationalism that ran through his thought and speech. we were speaking one day on the subject of miracles, and, with his usual energy of manner, he said: "there was no need of any literal angel to shut the mouths of the lions to save daniel; the awful holiness of the prophet was enough. there was so much of god in him that the savage creatures submitted to him as they did to unsinning adam. man's dominion over nature was broken by sin, but in the golden age to come it will be restored. a man in full communion with god wields a divine power in every sphere that he touches." his face glowed as he spoke, and his voice was subdued into a solemnity of tone that told how his reverent and adoring soul was thrilled with this vision of the coming glory of redeemed humanity. he knew the new testament by heart, as well as the old. the sayings of jesus were often on his lips. one day, in a musing, half-soliloquizing way, i heard him say: "it is wonderful, wonderful! a hebrew peasant from the hills of galilee, without learning, noble birth, or power, subverts all the philosophies of the world, and makes himself the central figure of all history. it is wonderful!" he half whispered the words, and his eyes had the introspective look of a man who is thinking deeply. he came to see me at our cottage on post street one morning before breakfast. in grading a street, a house in which i had lived and had the ill luck to own, on pine street, had been undermined, and toppled over into the street below, falling on the slate-roof and breaking all to pieces. he came to tell me of it, and to extend his sympathy. "i thought i would come first, so you might get the bad news from a friend rather than a stranger. you have lost a house; but it is a small matter. your little boy there might have put out his eye with a pair of scissors, or he might have swallowed a pin and lost his life. there are many things constantly taking place that are harder to bear than the loss of a house." many other wise words did the rabbi speak, and before he left i felt that a house was indeed a small thing to grieve over. he spoke with charming freedom and candor of all sorts of people. "of christians, the unitarians have the best heads, and the methodists the best hearts. the roman catholics hold the masses, because they give their people plenty of form. the masses will never receive truth in its simple essence; they must have it in a way that will make it digestible and assimilable, just as their, stomachs demand bread, and meats, and fruits, not their extracts or distilled essences, for daily food. as to judaism, it is on the eve of great changes. what these changes will be i know not, except that i am sure the god of our fathers will fulfill his promise to israel. this generation will probably see great things." "do you mean the literal restoration of the jews to palestine?" he looked at me with an intense gaze, and hastened not to answer. at last he spoke slowly: "when the perturbed elements of religious thought crystallize into clearness and enduring forms, the chosen people will be one of the chief factors in reaching that final solution of the problems which convulse this age." he was one of the speakers at the great mortara indignation-meeting in san francisco. the speech of the occasion was that of colonel baker, the orator who went to oregon, and in a single campaign magnetized the oregonians so completely by his splendid eloquence that, passing by all their old party leaders, they sent him to the united states senate. no one who heard baker's peroration that night will ever forget it. his dark eyes blazed, his form dilated, and his voice was like a bugle in battle. "they tell us that the jew is accursed of god. this has been the plea of the bloody tyrants and robbers that oppressed and plundered them during the long ages of their exile and agony. but the almighty god executes his own judgments. woe to him who presumes to wield his thunderbolts! they fall in blasting, consuming vengeance upon his own head. god deals with his chosen people in judgment; but he says to men, touch them at your peril! they that spoil them shall be for a spoil; they that carried them away captive shall themselves go into captivity. the assyrian smote the jew, and where is the proud assyrian empire? rome ground them under her iron heel, and where is the empire of the caesars? spain smote the jew, and where is her glory? the desert sands cover the site of babylon the great. the power that hurled the hosts of titus against the holy city jerusalem was shivered to pieces. the banners of spain, that floated in triumph over half the world, and fluttered in the breezes of every sea, is now the emblem of a glory that is gone, and the ensign of a power that has waned. the jews are in the hands of god. he has dealt with them in judgment, but they are still the children of promise. the day of their long exile shall end, and they will return to zion with songs and everlasting joy upon their heads!" the words were something like these, but who could picture baker's oratory? as well try to paint a storm in the tropics. real thunder and lightning cannot be put on canvas. the rabbi made a speech, and it was the speech of a man who had come from his books and prayers. he made a tender appeal for the mother and father of the abducted jewish boy, and argued the question as calmly, and in as sweet a spirit, as if he had been talking over an abstract question in his study. the vast crowd looked upon that strange figure with a sort of pleased wonder, and the rabbi seemed almost unconscious of their presence. he was as free from self-consciousness as a little child, and many a gentile heart warmed that night to the simple-hearted sage who stood before them pleading for the rights of human nature. the old man was often very sad. in such moods he would come round to our cottage on post street, and sit with us until late at night, unburdening his aching heart, and relaxing by degrees into a playfulness that was charming from its very awkwardness. he would bring little picture-books for the children, pat them on their heads, and praise them. they were always glad to see him, and would nestle round him lovingly. we all loved him, and felt glad in the thought that he left our little circle lighter at heart. he lived alone. once, when i playfully spoke to him of matrimony, he laughed quietly, and said: "no, no--my books and my poor schoolchildren are enough for me." he died suddenly and alone. he had been out one windy night visiting the poor, came home sick, and before morning was in that world of spirits which was so real to his faith, and for which he longed. he left his little fortune of a few thousand dollars to the poor of his native village of posen, in poland. and thus passed from california-life dr. julius eckman, the rabbi. my mining speculation. "i believe the lord has put me in the way of making a competency for my old age," said the dear old doctor, as he seated himself in the armchair reserved for him at the cottage at north beach. "how?" i asked. "i met a texas man today, who told me of the discovery of an immensely rich silver mining district in deep spring valley, mono county, and he says he can get me in as one of the owners." i laughingly made some remark expressive of incredulity. the honest and benignant face of the old doctor showed that he was a little nettled. "i have made full inquiry, and am sure this is no mere speculation. the stock will not be put upon the market, and will not be assessable. they propose to make me a trustee, and the owners, limited in number, will have entire control of the property. but i will not he hasty in the matter. i will make it a subject of prayer for twenty-four hours, and then if there be no adverse indications i will go on with it." the next day i met the broad-faced texan, and was impressed by him as the old doctor had been. it seemed a sure thing. an old prospector had been equipped and sent out by a few gentlemen, and he had found outcroppings of silver in a range of hills extending not less than three miles. assays had been made of the ores, and they were found to be very rich. all the timber and waterpower of deep spring valley had been taken up for the company under the general and local preemption and mining laws. it was a big thing. the beauty of the whole arrangement was that no "mining sharps" were to be let in; we were to manage it ourselves, and reap all the profits. we went into it, the old doctor and i, feeling deeply grateful to the broad-faced texan, who had so kindly given us the chance. i was made a trustee, and began to have a decidedly business feeling as such. at the meetings of "the board," my opinions were frequently called for, and were given with great gravity. the money was paid for the shares i had taken, and the precious evidences of ownership were carefully put in a place of safety. a mill was built near the richest of the claims, and the assays were good. there were delays, and more money was called for, and sent up. the assays were still good, and the reports from our superintendent were glowing. "the biggest thing in the history of california mining," he wrote; and when the secretary read his letter to the board, there was a happy expression on each face. at this point i began to be troubled. it seemed, from reasonable ciphering, that i should soon be a millionaire. it made me feel solemn and anxious. i lay awake at night, praying that i might not be spoiled by my good fortune. the scriptures that speak of the deceitfulness of riches were called to mind, and i rejoiced with trembling. many beneficent enterprises were planned, principally in the line of endowing colleges, and paying church-debts. (i had had an experience in this line.) there were further delays, and more money was called for. the ores were rebellious, and our "process" did not suit them. fryborg and deep spring valley were not the same. a new superintendent--one that understood rebellious ores--was employed at a higher salary. he reported that all was right, and that we might expect "big news" in a few days, as he proposed to crush about seventy tons of the best rock, "by a new and improved process." the board held frequent meetings, and in view of the nearness of great results did not hesitate to meet the requisitions made for further outlays of money. they resolved to pursue a prudent but vigorous policy in developing the vast property when the mill should be fairly in operation. all this time i felt an undercurrent of anxiety lest i might sustain spiritual loss by my sudden accession to great wealth, and continued to fortify myself with good resolutions. as a matter of special caution, i sent for a parcel of the ore, and had a private assay made of it. the assay was good. the new superintendent notified us that on a certain date we might look for a report of the result of the first great crushing and cleanup of the seventy tons of rock. the day came. on kearny street i met one of the stockholders--a careful presbyterian brother, who loved money. he had a solemn look, and was walking slowly, as if in deep thought. lifting his eyes as we met, he saw me, and spoke: "it is lead!" "what is lead?" "our silver mine in deep spring valley." yes; from the seventy tons of rock we got eleven dollars in silver, and about fifty pounds of as good lead as was ever molded into bullets. the board held a meeting the next evening. it was a solemn one. the fifty-pound bar of lead was placed in the midst, and was eyed reproachfully. i resigned my trusteeship, and they saw me not again. that was my first and last mining speculation. it failed somehow--but the assays were all very good. mike reese. i had business with him, and went at a business hour. no introduction was needed, for he had been my landlord, and no tenant of his ever had reason to complain that he did not get a visit from him, in person or by proxy, at least once a month. he was a punctual man--as a collector of what was due him. seeing that he was intently engaged, i paused and looked at him. a man of huge frame, with enormous hands and feet, massive head, receding forehead, and heavy cerebral development, full sensual lips, large nose, and peculiar eyes that seemed at the same time to look through you and to shrink from your gaze--he was a man at whom a stranger would stop in the street to get a second gaze. there he sat at his desk, too much absorbed to notice my entrance. before him lay a large pile of one-thousand-dollar united states government bonds, and he was clipping off the coupons. that face! it was a study as he sat using the big pair of scissors. a hungry boy in the act of taking into his mouth a ripe cherry, a mother gazing down into the face of her pretty sleeping child, a lover looking into the eyes of his charmer, are but faint figures by which to express the intense pleasure he felt in his work. but there was also a feline element in his joy--his handling of those bonds was somewhat like a cat toying with its prey. when at length he raised his head, there was a fierce gleam in his eye and a flush in his face. i had come upon a devotee engaged in worship. this was mike reese, the miser and millionaire. placing his huge left-hand on the pile of bonds, he gruffly returned my salutation, "good morning." he turned as he spoke, and east a look of scrutiny into my face which said plain enough that he wanted me to make known my business with him at once. i told him what was wanted. at the request of the official board of the minna-street church i had come to ask him to make a contribution toward the payment of its debt. "o yes; i was expecting you. they all come to me. father gallagher, of the catholic church, dr. wyatt, of the episcopal church, and all the others, have been here. i feel friendly to the churches, and i treat all alike--it won't do for me to be partial--i don't give to any!" that last clause was an anticlimax, dashing my hopes rudely; but i saw he meant it, and left. i never heard of his departing from the rule of strict impartiality he had laid down for himself. we met at times at a restaurant on clay street. he was a hearty feeder, and it was amusing to see how skillfully in the choice of dishes and the thoroughness with which he emptied them he could combine economy with plenty. on several of these occasions, when we chanced to sit at the same table, i proposed to pay for both of us, and he quickly assented, his hard, heavy features lighting up with undisguised pleasure at the suggestion, as he shambled out of the room amid the smiles of the company present, most of whom knew him as a millionaire, and me as a methodist preacher. he had one affair of the heart. cupid played a prank on him that was the occasion of much merriment in the san francisco newspapers, and of much grief to him. a widow was his enslaver and tormentor--the old story. she sued him for breach of promise of marriage. the trial made great fun for the lawyers, reporters, and the amused public generally; but it was no fun for him. he was mulcted for six thousand dollars and costs of the suit. it was during the time i was renting one of his offices on washington street. i called to see him, wishing to have some repairs made. his clerk met me in the narrow hall, and there was a mischievous twinkle in his eye as he said: "you had better come another day--the old man has just paid that judgment in the breach of promise case, and he is in a bad way." hearing our voices, he said, "who is there?--come in." i went in, and found him sitting leaning on his desk, the picture of intense wretchedness. he was all unstrung, his jaw fallen, and a most pitiful face met mine as he looked up and said, in a broken voice, "come some other day--i can do no business today; i am very unwell." he was indeed sick--sick at heart. i felt sorry for him. pain always excites my pity, no matter what may be its cause. he was a miser, and the payment of those thousands of dollars was like tearing him asunder. he did not mind the jibes of the newspapers, but the loss of the money was almost killing. he had not set his heart on popularity, but cash. he had another special trouble, but with a different sort of ending. it was discovered by a neighbor of his that, by some mismeasurement of the surveyors, he (reese) had built the wall of one of his immense business houses on front street six inches beyond his own proper line, taking in just so much of that neighbor's lot. not being on friendly terms with reese, his neighbor made a peremptory demand for the removal of the wall, or the payment of a heavy price for the ground. here was misery for the miser. he writhed in mental agony, and begged for easier terms, but in vain. his neighbor would not relent. the business men of the vicinity rather enjoyed the situation, humorously watching the progress of the affair. it was a case of diamond cut diamond, both parties bearing the reputation of being hard men to deal with. a day was fixed for reese to give a definite answer to his neighbor's demand, with notice that, in case of his noncompliance, suit against him would be begun at once. the day came, and with it a remarkable change in reese's tone. he sent a short note to his enemy breathing profanity and defiance. "what is the matter?" mused the puzzled citizen; "reese has made some discovery that makes him think he has the upper-hand, else he would not talk this way." and he sat and thought. the instinct of this class of men where money is involved is like a miracle. "i have it!" he suddenly exclaimed; "reese has the same hold on me that i have on him." reese happened to be the owner of another lot adjoining that of his enemy, on the other side. it occurred to him that, as all these lots were surveyed at the same time by the same party, it was most likely that as his line had gone six inches too far on the one side, his enemy's had gone as much too far on the other. and so it was. he had quietly a survey made of the premises, and he chuckled with inward joy to find that he held this winning card in the unfriendly game. with grim politeness the neighbors exchanged deeds for the two half feet of ground, and their war ended. the moral of this incident is for him who hath wit enough to see it. for several seasons he came every morning to north beach to take sea-baths. sometimes he rode his well-known white horse, but oftener he walked. he bathed in the open sea, making, as one expressed it, twenty-five tents out of the pacific ocean, by avoiding the bathhouse. was this the charm that drew him forth so early? it not seldom chanced that we walked downtown together. at times he was quite communicative, speaking of himself in a way that was peculiar. it seems he had thoughts of marrying before his episode with the widow. "do you think a young girl of twenty could love an old man like me?" he asked me one day, as we were walking along the street. i looked at his huge and ungainly bulk, and into his animal face, and made no direct answer. love! six millions of dollars is a great sum. money may buy youth and beauty, but love does not come at its call. god's highest gifts are free; only the second-rate things can be bought with money. did this sordid old man yearn for pure human love amid his millions? did such a dream cast a momentary glamour over a life spent in raking among the muck-heaps? if so, it passed away, for he never married. he understood his own case. he knew in what estimation he was held by the public, and did not conceal his scorn for its opinion. "my love of money is a disease. my saving and hoarding as i do is irrational, and i know it. it pains me to pay five cents for a streetcar ride, or a quarter of a dollar for a dinner. my pleasure in accumulating property is morbid, but i have felt it from the time i was a foot peddler in charlotte, campbell, and pittsylvania counties, in virginia, until now. it is a sort of insanity, and it is incurable; but it is about as good a form of madness as any, and all the world is mad in some, fashion." this was the substance of what he said of himself when in one of his moods of free speech, and it gave me a new idea of human nature--a man whose keen and penetrating brain could subject his own consciousness to a cool and correct analysis, seeing clearly the folly which he could not resist. the autobiography of such a man might furnish a curious psychological study, and explain the formation and development in society of those moral monsters called misers. nowhere in literature has such a character been fully portrayed, though shakespeare and george eliot have given vivid touches of some of its features. he always retained a kind feeling for the south, over whose hills he had borne his peddler's pack when a youth. after the war, two young ex-confederate soldiers came to san francisco to seek their fortunes. a small room adjoining my office was vacant, and the brothers requested me to secure it for them as cheap as possible. i applied to reese, telling him who the young men were, and describing their broken and impecunious condition. "tell them to take the room free of rent--but it ought to bring five dollars a month." it took a mighty effort, and he sighed as he spoke the words. i never heard of his acting similarly in any other case, and i put this down to his credit, glad to know that there was a warm spot in that mountain of mud and ice. a report of this generous act got afloat in the city, and many were the inquiries i received as to its truth. there was general incredulity. his health failed, and he crossed the seas. perhaps he wished to visit his native hills in germany, which he had last seen when a child. there he died, leaving all his millions to his kindred, save a bequest of one hundred and fifty thousand dollars to the university of california. what were his last thoughts, what was his final verdict concerning human life, i know not. empty-handed he entered the world of spirits, where, the film fallen from his vision, he saw the eternal realities. what amazement must have followed his awakening! uncle nolan. he was black and ugly; but it was an ugliness that did not disgust or repel you. his face had a touch both of the comic and the pathetic. his mouth was very wide, his lips very thick and the color of a ripe damson, blue-black; his nose made up in width what it lacked in elevation; his ears were big, and bent forward; his eyes were a dull white, on a very dark ground; his wool was white and thick. his age might be anywhere along from seventy onward. a black man's age, like that of a horse, becomes dubious after reaching a certain stage. he came to the class-meeting in the pine-street church, in san francisco, one sabbath morning. he asked leave to speak, which was granted. "bredren, i come here sometime ago, from vicksburg, mississippi, where i has lived forty year, or more. i heered dar was a culud church up on de hill, an' i thought i'd go an' washup wid'em. i went dar three or fo' sundays, but i foun' deir ways didn't suit me, an' my ways didn't suit dem. dey was yankees' niggers, an' [proudly] i's a southern man myself. sumbody tole me dar was a southern church down here on pine street, an' i thought i'd cum an' look in. soon 's i got inside de church, an' look roun' a minit, i feels at home. dey look like home-folks; de preacher preach like home-folks; de people sing like home-folks. yer see, chillan, i'se a southern man myself [emphatically], and i'se a southern methodis'. dis is de church i was borned in, an' dis is de church i was rarred in, an' [with great energy] dis is de church which de scripter says de gates ob hell shall not prevail ag'in it! ["amen!" from father newman and others.] when dey heerd i was comin' to dis church, some ob 'em got arter me 'bout it. dey say dis church was a enemy to de black people, and dat dey was in favor ob slavery. i tole 'em de scripter said, 'love your enemies,' an' den i took de bible an' read what it says about slavery--i can read some, chillun servants, obey yer masters in all things, not wid eye-service, as men-pleasers, but as unto de lord;' and so on. but, bless yer souls, chillun, dey wouldn't lis'en to dat --so i foun' out dey was abberlishem niggers, an' i lef' 'em.!" yes, he left them, and came to us. i received him into the church in due form, and with no little eclat, he being the only son of ham on our roll of members in san francisco. he stood firm to his southern methodist colors under a great pressure. "yer ought ter be killed fer goin' ter dat southern church," said one of his colored acquaintances one day, as they met in the street. "kill me, den," said uncle nolan, with proud humility; "kill me, den; yer can't cheat me out ob many days, nohow." he made a living, and something over, by rag-picking at north beach and elsewhere, until the chinese entered into competition with him, and then it was hard times for uncle nolan. his eyesight partially failed him, and it was pitiful to see him on the beach, his threadbare garments fluttering in the wind, groping amid the rubbish for rags, or shuffling along the streets with a huge sack on his back, and his old felt hat tied under his nose with a string, picking his way carefully to spare his swollen feet, which were tied up with bagging and woolens. his religious fervor never cooled; i never heard him complain. he never ceased to be joyously thankful for two things--his freedom and his religion. but, strange as it may seem, he was a pro-slavery man to the last. even after the war, he stood to his opinion. "dem niggers in de south thinks dey is free, but dey ain't. 'fore it's all ober, all dat ain't dead will be glad to git back to deir masters," he would say. yet he was very proud of his own freedom, and took the utmost care of his free-papers. he had no desire to resume his former relation to the peculiar and patriarchal institution. he was not the first philosopher who has had one theory for his fellows, and another for himself. uncle nolan would talk of religion by the hour. he never tired of that theme. his faith was simple and strong, but, like most of his race, he had a tinge of superstition. he was a dreamer of dreams, and he believed in them. here is one which he recited to me. his weird manner, and low, chanting tone, i must leave to the imagination of the reader: uncle nolan's dream. a tall black man came along, an' took me by de arm, an' tole me he had come for me. i said: "what yer want wid me?" "i come to carry yer down into de darkness." "what for?" "cause you didn't follow de lord." wid dat, he pulled me 'long de street till he come to a big black house, de biggest house an' de thickest walls i eber seed. we went in a little do', an' den he took me down a long sta'rs in de dark, till we come to a big do'; we went inside, an' den de big black man locked de do' behin' us. an' so we kep' on, goin' down, an' goin' down, an' goin' down, an' he kep' lockin' dem big iron do's behin' us, an' all de time it was pitch dark, so i couldn't see him, but he still hel' on ter me. at las' we stopped, an' den he started to go 'way. he locked de do' behin' him, an' i heerd him goin' up de steps de way we come, lockin' all de do's behin' him as he went. i tell you, dat was dreafful when i heerd dat big key turn on de outside, an' me 'way down, down, down dar in de dark all alone, an' no chance eber to git out! an' i knowed it was 'cause i didn't foller de lord. i felt roun' de place, an' dar was nothin' but de thick walls an' de great iron do'. den i sot down an' cried, 'cause i knowed i was a los' man. dat was de same as hell [his voice sinking into a whisper], an' all de time i knowed i was dar, 'cause i hadn't follered de lord. bymeby somethin' say, "pray." somethin' keep sayin', "pray." den i drap on my knees an' prayed. i tell you, no man eber prayed harder 'n i did! i prayed, an' prayed, an' prayed! what's dat? dar's somebody a-comin' down dem steps; dey 's unlockin' de do'; an' de fus' thing i knowed, de place was all lighted up bright as day, an' a white-faced man stood by me, wid a crown on his head, an' a golden key in his han'. somehow, i knowed it was jesus, an' right den i waked up all of a tremble, an' knowed it was a warnin' dat i mus' foller de lord. an', bless jesus, i has been follerin' him fifty year since i had dat dream. in his prayers, and class-meeting and love-feast talks, uncle nolan showed a depth of spiritual insight truly wonderful, and the effects of these talks were frequently electrical. many a time have i seen the pine-street brethren and sisters rise from their knees, at the close of one of his prayers, melted into tears, or thrilled to religious rapture, by the power of his simple faith, and the vividness of his sanctified imagination. he held to his pro-slavery views and guarded his own freedom-papers to the last; and when he died, in , the last colored southern methodist in california was transferred from the church militant to the great company that no man can number, gathered out of every nation, and tribe, and kindred, on the earth. buffalo jones. that is what the boys called him. his real christian name was zachariah. the way he got the name he went by was this: he was a methodist, and prayed in public. he was excitable, and his lungs were of extraordinary power. when fully aroused, his voice sounded, it was said, like the bellowing of a whole herd of buffaloes. it had peculiar reverberations --rumbling, roaring, shaking the very roof of the sanctuary, or echoing among the hills when let out at its utmost strength at a camp-meeting. this is why they called him buffalo jones. it was his voice. there never was such another. in ohio he was a blacksmith and a fighting man. he had whipped every man who would fight him, in a whole tier of counties. he was converted after the old way; that is to say, he was "powerfully" converted. a circuit-rider preached the sermon that converted him. his anguish was awful. the midnight hour found him in tears. the ohio forest resounded with his cries for mercy. when he found peace, it swelled into rapture. he joined the church militant among the methodists, and he stuck to them, quarreled with them, and loved them, all his life. he had many troubles, and gave much trouble to many people. the old adam died hard in the fighting blacksmith. his pastor, his family, his friends, his fellow-members in the church, all got a portion of his wrath in due season, if they swerved a hair-breadth from the straight-line of duty as he saw it. i was his pastor, and i never had a truer friend, or a severer censor. one sunday morning he electrified my congregation, at the close of the sermon, by rising in his place and making a personal application of a portion of it to individuals present, and insisting on their immediate expulsion from the church. he had another side to his character, and at times was as tender as a woman. he acted as class-leader. in his melting moods he moved every eye to tears, as he passed round among the brethren and sisters, weeping, exhorting, and rejoicing. at such times, his great voice softened into a pathos that none could resist, and swept the chords of sympathy with resistless power. but when his other mood was upon him, he was fearful. he scourged the unfaithful with a whip of fire. he would quote with a singular fluency and aptness every passage of scripture that blasted hypocrites, reproved the lukewarm, or threatened damnation to the sinner. at such times his voice sounded like the shout of a warrior in battle, and the timid and wondering hearers looked as if they were in the midst of the thunder and lightning of a tropical storm. i remember the shock he gave a quiet and timid lady whom i had persuaded to remain for the class-meeting after service. fixing his stern and fiery gaze upon her, and knitting his great bushy eyebrows, he thundered the question: "sister, do you ever pray?" the startled woman nearly sprang from her seat in a panic as she stammered hurriedly, "yes, sir; yes, sir." she did not attend his class-meeting again. at a camp-meeting he was present, and in one of his bitterest moods. the meeting was not conducted in a way to suit him. he was grim, critical, and contemptuous, making no concealment of his dissatisfaction. the preaching displeased him particularly. he groaned, frowned, and in other ways showed his feelings. at length he could stand it no longer. a young brother had just closed a sermon of a mild and persuasive kind, and no sooner had he taken his seat than the old man arose. looking forth upon the vast audience, and then casting a sharp and scornful glance at the preachers in and around "the stand," he said: "you preachers of these days have no gospel in you. you remind me of a man going into his barnyard early in the morning to feed his stock. he has a basket on his arm, and here come the horses nickering, the cows lowing, the calves and sheep bleating, the hogs squealing, the turkeys gobbling, the hens clucking, and the roosters crowing. they all gather round him, expecting to be fed, and lo, his basket is empty! you take texts, and you preach, but you have no gospel. your baskets are empty." here he darted a defiant glance at the astonished preachers, and then, turning to one, he added in a milder and patronizing tone: "you, brother sim, do preach a little gospel in your basket there is one little nubbin!" down he sat, leaving the brethren to meditate on what he had said. the silence that followed was deep. at one time his conscience became troubled about the use of tobacco, and he determined to quit. this was the second great struggle of his life. he was running a sawmill in the foothills at the time, and lodged in a little cabin near by. suddenly deprived of the stimulant to which it had so long been accustomed, his nervous system was wrought up to a pitch of frenzy. he would rush from the cabin, climb along the hill-side, run leaping from rock to rock, now and then screaming like a maniac. then he would rush back to the cabin, seize a plug of tobacco, smell it, rub it against his lips, and away he would go again. he smelt, but never tasted it again. "i was resolved to conquer, and by the grace of god i did," he said. that was a great victory for the fighting blacksmith. when a melodeon was introduced into the church, he was sorely grieved and furiously angry. he argued against it, he expostulated, he protested, he threatened, he staid away from church. he wrote me a letter, in which he expressed his feelings thus: san jose, . dear brother:--they have got the devil into the church now! put your foot on its tail and it squeals. z. jones. this was his figurative way of putting it. i was told that he had, on a former occasion, dealt with the question in a more summary way, by taking his ax and splitting a melodeon to pieces. neutrality in politics was, of course, impossible to such a man. in the civil war his heart was with the south. he gave up when stonewall jackson was killed. "it is all over--the praying man is gone," he said; and he sobbed like a child. from that day he had no hope for the confederacy, though once or twice, when feeling ran high, he expressed a readiness to use carnal weapons in defense of his political principles. for all his opinions on the subject he found support from the bible, which he read and studied with unwearying diligence. he took its words literally on all occasions, and the old testament history had a wonderful charm for him. he would have been ready to hew any modern agag in pieces before the lord. he finally found his way to the insane asylum. the reader has already seen how abnormal was his mind, and will not be surprised that his storm-tossed soul lost its rudder at last. but mid all its veerings he never lost sight of the star that had shed its light upon his checkered path of life. he raved, and prayed, and wept, by turns. the horrors of mental despair would be followed by gleams of seraphic joy. when one of his stormy moods was upon him, his mighty voice could be heard above all the sounds of that sad and pitiful company of broken and wrecked souls. the old class-meeting instinct and habit showed itself in his semi-lucid intervals. he would go round among the patients questioning them as to their religious feeling and behavior in true class-meeting style. dr. shurtleff one day overheard a colloquy between him and dr. rogers, a freethinker and reformer, whose vagaries had culminated in his shaving close one side of his immense whiskers, leaving the other side in all its flowing amplitude. poor fellow! pitiable as was his case, he made a ludicrous figure walking the streets of san francisco half shaved, and defiant of the wonder and ridicule he excited. the ex-class-leader's voice was earnest and loud, as he said: "now, rogers, you must pray. if you will get down at the feet of jesus, and confess your sins, and ask him to bless you, he will hear you, and give you peace. but if you won't do it," he continued, with growing excitement and kindling anger at the thought, "you are the most infernal rascal that ever lived, and i'll beat you into a jelly!" the good doctor had to interfere at this point, for the old man was in the very act of carrying out his threat to punish rogers bodily, on the bare possibility that he would not pray as he was told to do. and so that extemporized class-meeting came to an abrupt end. "pray with me," he said to me the last time i saw him at the asylum. closing the door of the little private office, we knelt side by side, and the poor old sufferer, bathed in tears, and docile as a little child, prayed to the once suffering, once crucified, but risen and interceding jesus. when he arose from his knees his eyes were wet, and his face showed that there was a great calm within. we never met again. he went home to die. the storms that had swept his soul subsided, the light of reason was rekindled, and the light of faith burned brightly; and in a few weeks he died in great peace, and another glad voice joined in the anthems of the blood-washed millions in the city of god. tod robinson. the image of this man of many moods and brilliant genius that rises most distinctly to my mind is that connected with a little prayer-meeting in the minna-street church, san francisco, one thursday night. his thin silver locks, his dark flashing eye, his graceful pose, and his musical voice, are before me. his words i have not forgotten, but their electric effect must forever be lost to all except the few who heard them. "i have been taunted with the reproach that it was only after i was a broken and disappointed man in my worldly hopes and aspirations that i turned to religion. the taunt is just"--here he bowed his head, and paused with deep emotion "the taunt is just. i bow my head in shame, and take the blow. my earthly hopes have faded and fallen one after another. the prizes that dazzled my imagination have eluded my grasp. i am a broken, gray-haired man, and i bring to my god only the remnant of a life. but, brethren, it is this very thought that fills me with joy and gratitude at this moment--the thought that when all else fails god takes us up. just when we need him most, and most feel our need of him, he lifts us up out of the depths where we had groveled, and presses us to his fatherly heart. this is the glory of christianity. the world turns from us when we fail and fall; then it is that the lord draws higher. such a religion must be from god, for its principles are god-like. it does not require much skill or power to steer a ship into port when her timbers are sound, her masts all rigged, and her crew at their posts; but the pilot that can take an old hulk, rocking on the stormy waves, with its masts torn away, its rigging gone, its planks loose and leaking, and bring it safe to harbor, that is the pilot for me. brethren, i am that hulk; and jesus is that pilot!" "glory be to jesus!" exclaimed father newman; as the speaker, with swimming eyes, radiant face, and heaving chest, sunk into his seat. i never heard any thing finer from mortal lips, but it seems cold to me as i read it here. oratory cannot be put on paper. he was present once at a camp-meeting, at the famous toll-gate camp-ground, in santa clara valley, near the city of san jose. it was sabbath morning, just such a one as seldom dawns on this earth. the brethren and sisters were gathered around "the stand" under the live-oaks for a speaking-meeting. the morning glory was on the summits of the santa cruz mountains that sloped down to the sacred spot, the lovely valley smiled under a sapphire sky, the birds hopped from twig to twig of the overhanging branches that scarcely quivered in the still air, and seemed to peer inquiringly into the faces of the assembled worshipers. the bugle-voice of bailey led in a holy song, and simmons led in prayer that touched the eternal throne. one after another, gray-haired men and saintly women told when and how they began the new life far away on the old hills they would never see again, and how they had been led and comforted in their pilgrimage. young disciples, in the flush of their first love, and the rapture of newborn hope, were borne out on a tide of resistless feeling into that ocean whose waters encircle the universe. the radiance from the heavenly hills was reflected from the consecrated encampment, and the angels of god hovered over the spot. judge robinson rose to his feet, and stepped into the altar, the sunlight at that moment falling upon his face. every voice was hushed, as, with the orator's indefinable magnetism, he drew every eye upon him. the pause was thrilling. at length he spoke: "this is a mount of transfiguration. the transfiguration is on hill and valley, on tree and shrub, on grass and flower, on earth and sky. it is on your faces that shine like the face of moses when he came down from the awful mount where be met jehovah face to face. the same light is on your faces, for here is god's shekinah. this is the gate of heaven. i see its shining hosts, i hear the melody of its songs. the angels of god encamped with us last night, and they linger with us this morning. tarry with us, ye sinless ones, for this is heaven on earth!" he paused, with extended arm, gazing upward entranced. the scene that, followed beggars description. by a simultaneous impulse all rose to their feet and pressed toward the speaker with awestruck faces, and when grandmother bucker, the matriarch of the valley, with luminous face and uplifted eyes, broke into a shout, it swelled into a melodious hurricane that shook the very hills. he ought to have been a preacher. so he said to me once: "i felt the impulse and heard the call in my early manhood. i conferred with flesh and blood, and was disobedient to the heavenly vision. i have had some little success at the bar, on the hustings, and in legislative halls, but how paltry has it been in comparison with the true life and high career that might have been mine!" he was from the hill-country of north carolina, and its flavor clung to him to the last. he had his gloomy moods, but his heart was fresh as a blue ridge breeze in may, and his wit bubbled forth like a mountain-spring. there was no bitterness in his satire. the very victim of his thrust enjoyed the keenness of the stroke, for there was no poison in the weapon. at times he seemed inspired, and you thrilled, melted, and soared, under the touches of this western coleridge. he came to my room at the golden eagle, in sacramento city, one night, and left at two o'clock in the morning. he walked the floor and talked, and it was the grandest monologue i ever listened to. one part of it i could not forget. it was with reference to preachers who turn aside from their holy calling to engage in secular pursuits, or in politics. "it is turning away from angels' food to feed on garbage. think of spending a whole life in contemplating the grandest things, and working for the most glorious ends, instructing the ignorant, consoling the sorrowing, winning the wayward back to duty and to peace, pointing the dying to him who is the light and the life of men, animating the living to seek from the highest motives a holy life and a sublime destiny! o it is a life that might draw an angel from the skies! if there is a special hell for fools, it should be kept for the man who turns aside from a life like this, to trade, or dig the earth, or wrangle in a court of law, or scramble for an office." he looked at me as he spoke, with flashing eyes and curled lip. "that is all true and very fine, judge, but it sounds just a little peculiar as coming from you." "i am the very man to say it, for i am the man who bitterly sees its truth. do not make the misstep that i did. a man might well be willing to live on bread and water, and walk the world afoot, for the privilege of giving all his thoughts to the grandest themes, and all his service to the highest objects. as a lawyer, my life has been spent in a prolonged quarrel about money, land, houses; cattle, thieving, slandering, murdering, and other villainy. the little episodes of politics that have given variety to my career have only shown me the baseness of human nature, and the pettiness of human ambition. there are men who will fill these places and do this work, and who want and will choose nothing better. let them have all the good they can get out of such things. but the minister of the gospel who comes down from the height of his high calling to engage in this scramble, does that which makes devils laugh and angels weep." this was the substance of what he said on this point. i have never forgotten it. i am glad he came to my room that night. what else he said i cannot write, but the remembrance of it is like to that of a melody that lingers in my soul when the music has ceased. "i thank you for your sermon today--you never told a single lie." this was his remark at the close of a service in minna street one sunday. "what is the meaning of that remark?" that the exaggerations of the pulpit repel thousands from the truth. moderation of statement is a rare excellence. a deep spiritual insight enables a religious teacher to shade his meanings where it is required. deep piety is genius for the pulpit. mediocrity in native endowments, conjoined with spiritual stolidity in the pulpit, does more harm than all the open apostles of infidelity combined. they take the divinity out of religion and kill the faith of those who hear them. none but inspired men should stand in the pulpit. religion is not in the intellect merely. the world by wisdom cannot know god. the attempt to find out god by the intellect has always been, and always must be, the completest of failures. religion is the sphere of the supernatural, and stands not in the wisdom of men, but in the power of god. it has often happened that men of the first order of talent and the highest culture have been converted by the preaching of men of weak intellect and limited education, but who were directly taught of god, and had drunk deep from the fount of living truth in personal experience of the blessed power of christian faith. it was through the intellect that the devil seduced the first pair. when we rest in the intellect only, we miss god. with the heart only can man believe unto righteousness. the evidence that satisfies is based on consciousness. consciousness is the satisfying demonstration. "eye hath not seen, nor ear heard, neither have entered into the heart of man, the things which god hath prepared for them that love him. but god hath revealed them unto us by his spirit. they can be revealed in no other way." here was the secret he had learned, and that had brought a new joy and glory into his life as it neared the sunset. the great change dated from a dark and rainy night as he walked home in sacramento city. not more tangible to saul of tarsus was the vision, or more distinctly audible the voice that spoke to him on the way to damascus, than was the revelation of jesus christ to this lawyer of penetrating intellect, large and varied reading, and sharp perception of human folly and weakness. it was a case of conversion in the fullest and divinest sense. he never fell from the wonder-world of grace to which he had been lifted. his youth seemed to be renewed, and his life had rebloomed, and its winter was turned into spring, under the touch of him who maketh all things new. he was a new man, and he lived in a new world. he never failed to attend the class-meetings, and in his talks there the flashes of his genius set religious truths in new lights, and the little band of methodists were treated to bursts of fervid eloquence, such as might kindle the listening thousands of metropolitan churches into admiration, or melt them into tears. on such occasions i could not help regretting anew that the world had lost what this man might have wrought had his path in life taken a different direction at the start. he died suddenly, and when in the city of los angeles i read the telegram announcing his death, i felt, mingled with the pain at the loss of a friend, exultation that before there was any reaction in his religious life his mighty soul had found a congenial home amid the supernal glories and sublime joys of the world of spirits. the moral of this man's life will be seen by him for whom this imperfect sketch has been penciled. ah lee. he was the sunniest of mongolians. the chinaman, under favorable conditions, is not without a sly sense of humor of his peculiar sort; but to american eyes there is nothing very pleasant in his angular and smileless features. the manner of his contact with many californians is not calculated to evoke mirthfulness. the brickbat may be a good political argument in the hands of a hoodlum, but it does not make its target playful. to the chinaman in america the situation is new and grave, and he looks sober and holds his peace. even the funny-looking, be-cued little chinese children wear a look of solemn inquisitiveness, as they toddle along the streets of san francisco by the side of their queer-looking mothers. in his own land, overpopulated and misgoverned, the chinaman has a hard fight for existence. in these united states his advent is regarded somewhat in the same spirit as that of the seventeen year locusts, or the cotton-worm. the history of a people may be read in their physiognomy. the monotony of chinese life during these thousands of years is reflected in the dull, monotonous faces of chinamen. ah lee was an exception. his skin was almost fair, his features almost caucasian in their regularity; his dark eye lighted up with a peculiar brightness, and there was a remarkable buoyancy and glow about him every way. he was about twenty years old. how long he had been in california i know not. when he came into my office to see me the first time, he rushed forward and impulsively grasped my hand, saying: "my name ah lee--you doctor plitzjellie?" that was the way my name sounded as he spoke it. i was glad to see him, and told him so. "you makee christian newspaper? you talkee jesus? mr. taylor tellee me. me christian--me love jesus." yes, ah lee was a christian; there could be no doubt about that. i have seen many happy converts, but none happier than he. he was not merely happy--he was ecstatic. the story of the mighty change was a simple one, but thrilling. near vacaville, the former seat of the pacific methodist college, in solano county, lived the rev. iry taylor, a member of the pacific conference of the methodist episcopal church, south. mr. taylor was a praying man, and he had a praying wife. ah lee was employed as a domestic in the family. his curiosity was first excited in regard to family prayers. he wanted to know what it all meant. the taylor's explained. the old, old story took hold of ah lee. he was put to thinking and then to praying. the idea of the forgiveness of sins filled him with wonder and longing. he hung with breathless interest upon the word of the lord, opening to him a world of new thought. the tide of feeling bore him on, and at the foot of the cross he found what he sought. ah lee was converted--converted as paul, as augustine, as wesley, were converted. he was born into a new life that was as real to him as his consciousness was real. this psychological change will be understood by some of my readers; others may regard it as they do any other inexplicable phenomenon in that mysterious inner world of the human soul, in which are lived the real lives of us all. in ah lee's heathen soul was wrought the gracious wonder that makes joy among the angels of god. the young chinese disciple, it is to be feared, got little sympathy outside the taylor household and a few others. the right-hand of christian fellowship was withheld by many, or extended in a cold, half-reluctant way. but it mattered not to ah lee; he had his own heaven. coldness was wasted on him. the light within him brightened every thing without. ah lee became a frequent visitor to our cottage on the hill. he always came and went rejoicing. the gospel of john was his daily study and delight. to his ardent and receptive nature it was a diamond mine. two things he wanted to do. he had a strong desire to translate his favorite gospel into chinese, and to lead his parents to christ. when he spoke of his father and mother his voice would soften, his eyes moisten with tenderness. "i go back to china and tellee my fader and mudder allee good news," he said, with beaming face. this peculiar development of filial reverence and affection among the chinese is a hopeful feature of their national life. it furnishes a solid basis for a strong christian nation. the weakening of this sentiment weakens religious susceptibility; its destruction is spiritual death. the worship of ancestors is idolatry, but it is that form of it nearest akin to the worship of the heavenly father. the honoring of the father and mother on earth is the commandment with promise, and it is the promise of this life and of life everlasting. there is an inter blending of human and divine loves; earth and heaven are unitary in companionship and destiny. the golden ladder rests on the earth and reaches up into the heavens. about twice a week ah lee came to see us at north beach. these visits subjected our courtesy and tact to a severe test. he loved little children, and at each visit he would bring with him a gayly-painted box filled with chinese sweetmeats. such sweetmeats! they were to strong for the palates of even young californians. what cannot be relished and digested by a healthy california boy must be formidable indeed. those sweetmeats were--but i give it up, they were indescribable! the boxes were pretty, and, after being emptied of their contents, they were kept. ah lee's joy in his new experience did not abate. under the touch of the holy spirit, his spiritual nature had suddenly blossomed into tropical luxuriance. to look at him made me think of the second chapter of the acts of the apostles. if i had had any lingering doubts of the transforming power of the gospel upon all human hearts, this conversion of ah lee would have settled the question forever. the bitter feeling against the chinese that just then found expression in california, through so many channels, did not seem to affect him in the least. he had his christianity warm from the heart of the son of god, and no caricature of its features or perversion of its spirit could bewilder him for a moment. he knew whom he had believed. none of these things moved him. o blessed mystery of god's mercy, that turns the night of heathen darkness into day, and makes the desert soul bloom with the flowers of paradise! o cross of the crucified! lifted up, it shall draw all men to their saviour! and o blind and slow of heart to believe! why could we not discern that this young chinaman's conversion was our lord's gracious challenge to our faith, and the pledge of success to the church that will go into all the world with the news of salvation? ah lee has vanished from my observation, but i have a persuasion that is like a burning prophecy that he will be heard from again. to me he types the blessedness of old china newborn in the life of the lord, and in his luminous face i read the prophecy of the redemption of the millions who have so long bowed before the great red dragon, but who now wait for the coming of the deliverer. the climate of california. had shakespeare lived in california, he would not have written of the "winter of our discontent," but would most probably have found in the summer of that then undiscovered country a more fitting symbol of the troublous times referred to; for, with the fogs, winds, and dust, that accompany the summer, or the "dry season," as it is more appropriately called in california, it is emphatically a season of discontent. in the mountains of the state only are these conditions not found. true, you will find dust even there as the natural consequence of the lack of rain; but that is not, of course, so bad in the mountains; and with no persistent, nagging wind to pick it up and fling it spitefully at you, you soon get not to mind it at all. but of summer in the coast country it is hard to speak tolerantly. the perfect flower of its unloveliness flourishes in san francisco, and, more or less hardily, all along the coast. from the time the rains cease--generally some time in may --through the six-months' period of their cessation, the programme for the day is, with but few exceptions, unvaried. fog in the morning --chilling, penetrating fog, which obscures the rays of the morning sun completely, and, dank and "clinging like cerements," swathes every thing with its soft, gray folds. on the bay it hangs, heavy and chill, blotting out everything but the nearest objects, and at a little distance hardly distinguishable from the water itself. at such times is heard the warning-cry of the foghorns at fort point, goat island, and elsewhere--a sound which probably is more like that popularly supposed to be produced by an expiring cow in her last agony than any thing else, but which is not like that or any thing in the world but a foghorn. the fog of the morning, however, gives way to the wind of the afternoon, which, complete master of the situation by three o'clock p.m., holds stormy sway till sunset. no gentle zephyr this, to softly sway the delicate flower or just lift the fringe on the maiden's brow, but what seamen call a "spanking breeze," that does not hesitate to knock off the hat that is not fastened tightly both fore and aft to the underlying head, or to fling sand and dust into any exposed eye, and which dances around generally among skirts and coat-tails with untiring energy and persistency. to venture out on the streets of san francisco at such times is really no trifling matter; and to one not accustomed to it, or to one of a non-combative disposition, the performance is not a pleasant one. still the streets are always full of hurrying passengers; for, whether attributable to the extra amount of vitality and vim that this bracing climate imparts to its children, or to a more direct and obvious cause, the desire to get indoors again as soon as possible, the fact remains the same--that the people of california walk faster than do those of almost any other country. not only men either, who with their coats buttoned up to their chins, and hats jammed tightly over their half-shut eyes, present a tolerably secure surface to the attacks of the wind, but their fairer sisters too can be seen, with their fresh cheeks and bright eyes protected by jaunty veils, scudding along in the face or the track of the wind, as the case may he, with wonderful skill and grace, looking as trim and secure as to rigging as the lightest schooner in full sail on their own bay. but it is after the sun has gone down from the cloudless sky, and the sea has recalled its breezes to slumber for the night, that the fulfillment of the law of compensation is made evident in this matter. the nights are of silver, if the days be not of gold. and all over the state this blessing of cool, comfortable nights is spread. at any season, one can draw a pair of blankets over him upon retiring, sure of sound, refreshing slumber, unless assailed by mental or physical troubles to which even this glorious climate of california cannot minister. the country here during this rainless season does not seem to the eastern visitor enough like what he has known as country in the summer to warrant any outlay in getting there. he must, however, understand that here people go to the country for precisely opposite reasons to those which influence eastern tourists to leave the city and betake themselves to rural districts. in the east, one leaves the crowded streets and heated atmosphere of the great city to seek coolness in some sylvan retreat. here, we leave the chilling winds and fogs of the city to try to get warm where they cannot penetrate. warm it may be; but the country at this season is not at its best as to looks. the flowers and the grass have disappeared with the rains, the latter, however, keeping in its dry, brown roots, that the sun scorches daily, the germ of all next winter's green. of the trees, the live-oak alone keeps to the summer livery of eastern forests. farther up in the mountain counties it is very different. no fairer summer could be wished for than that which reigns cloudless here; and with the sparkling champagne of that clear, dry air in his nostrils, our eastern visitor forgets even to sigh for a summer shower to lay the dreadful dust. and even in the valleys and around the bay, we must confess that some advantages arise from the no-rain-for-six-months policy. picnickers can set forth any day, with no fear of the fun of the occasion being wet-blanketed by an unlooked-for shower; and farmers can dispose of their crops according to convenience, often leaving their wheat piled up in the field, with no fear of danger from the elements. still we do get very tired of this long, strange summer, and the first rains are eagerly looked for and joyously welcomed. the fall of the first showers after such a long season of bareness and brownness is almost as immediate in its effects as the waving of a fairy's magic wand over cinderella, sitting ragged in the ashes and cinders. the change thus wrought is well described by a poet of the soil in a few picturesque lines: week by week the near hills whitened, in their dusty leather cloaks; week by week the far hills darkened, from the fringing plain of oaks; till the rains came, and far breaking, on the fierce south-wester tost, dashed the whole long coast with color, and then vanished and were lost. with these rains the grass springs up, the trees put out, and the winds disappear, leaving in the air a wonderful softness. in a month or two the flowers appear, and the hills are covered with a mantle of glory. bluebells, lupins, buttercups, and hosts of other blossoms, spring up in profusion; and, illuminating every thing, the wild california poppy lifts its flaming torch, typifying well, in its dazzling and glowing color, the brilliant minds and passionate hearts of the people of this land. all these bloom on through the winter, for this is a winter but in name. with no frost, ice, or snow, it is more like an eastern spring, but for the absence of that feeling of languor and debility which is so often felt in that season. true it rains a good deal, but by no means constantly, more often in the night; and it is this season of smiles and tears, this winter of flowers and budding trees, in which the glory of the california climate lies. certainly nothing could be more perfect than a bright winter day in that state. still, after all i could say in its praise, you would not know its full charm till you had felt its delicious breath on your own brow; for the peculiar freshness and exhilaration of the air are indescribable. sometimes in march, the dwellers on the bay are treated to a blow or two from the north, which is about as serious weather as the inhabitant of that favored clime ever experiences. after a night whose sleep has been broken by shrieks of the wind and the rattling of doors and windows, i wake with a dullness of head and sensitiveness of nerve that alone would be sufficient to tell me that the north wind had risen like a thief in the night, and had not, according to the manner of that class, stolen away before morning. on the contrary, he seems to be rushing around with an energy that betokens a day of it. i dress, and look out of my window. the bay is a mass of foaming, tossing waves, which, as they break on the beach just below, cast their spray twenty feet in air. all the little vessels have come into port, and only a few of the largest ships still ride heavily at their anchors. the hue separating the shallow water near the shore from the deeper waters beyond is much farther out than usual, and is more distinct. within its boundary, the predominant white is mixed with a dark, reddish brown; without, the spots of color are darkest green. the shy has been swept of every particle of cloud and moisture, and is almost painfully blue. against it, mounts tamalpais and diablo stand outlined with startling clearness. the hills and islands round the bay look as cold and uncomfortable in their robes of bright green as a young lady who has put on her spring-dress too soon. the streets and walks are swept bare, but still the air is filled with flying sand that cuts my face like needles, when, later, overcoated and gloved to the utmost, i proceed downtown. such days are nature's cleaning days, very necessary to future health and comfort, but, like all cleaning-days, very unpleasant to go through with. with her mightiest besom does the old lady sweep all the cobwebs from the sky, all the dirt and germs of disease from the ground, and remove all specks and impurities from her air-windows. one or two such "northers" finish up the season, effectually scaring away all the clouds, thus clearing the stage for the next act in this annual drama of two acts. this climate of california is perfectly epitomized in a stanza of the same poem before quoted: so each year the season shifted, wet and warm, and drear and dry, half a year-of cloud and flowers, half a year of dust and sky. after the storm. (penciled in the bay-window above the golden gate, north beach, san francisco, february , .) all day the winds the sea had lashed, the fretted waves in anger dashed against the rocks in tumult wild above the surges roughly piled--no blue above, no peace below, the waves still rage, the winds still blow. dull and muffled the sunset gun tells that the dreary day is done; the sea-birds fly with drooping wing--chill and shadow on every thing--no blue above, no peace below, the waves still rage, the winds still blow. the clouds dispart; the sapphire dye in beauty spreads o'er the western sky, cloud-fires blaze o'er the gate of gold, gleaming and glowing, fold on fold--all blue above, all peace below, nor waves now rage, nor winds now blow. souls that are lashed by storms of pain, eyes that drip with sorrow's rain; hearts that burn with passion strong, bruised and torn, and weary of wrong--no light above, no peace within, battling with self, and torn by sin-- hope on, hold on, the clouds will lift; god's peace will come as his own sweet gift, the light will shine at evening-time, the reflected beams of the sunlit clime, the blessed goal of the soul's long quest, where storms ne'er beat, and all are blest. bishop kavanaugh in california. he came first in . the californians "took to" him at once. it was almost as good as a visit to the old home to see and hear this rosy-faced, benignant, and solid kentuckian. his power and pathos in the pulpit were equaled by his humor and magnetic charm in the social circle. many consciences were stirred. all hearts were won by him, and he holds them unto this day. we may hope too that many souls were won that will be stars in his crown of rejoicing in the day of jesus christ. at san jose, his quality as a preacher was developed by an incident that excited no little popular interest. the (northern) methodist conference was in session at that place, the venerable and saintly bishop scott presiding. bishop kavanaugh was invited to preach, and it so happened that he was to do so on the night following an appointment for bishop scott. the matter was talked of in the town, and not unnaturally a spirit of friendly rivalry was excited with regard to the approaching pulpit performances by the northern and southern bishops respectively. one enthusiastic but not pious kentuckian offered to bet a hundred dollars that kavanaugh would preach the better sermon. of course the two venerable men were unconscious of all this, and nothing of the kind was in their hearts. the church was thronged to hear bishop scott, and his humility, strong sense, deep earnestness, and holy emotion, made a profound and happy impression on all present. the church was again crowded the next night. among the audience was a considerable number of southerners--wild fellows, who were not often seen in such places, among them the enthusiastic kentuckian already alluded to. kavanaugh, after going through with the preliminary services, announced his text, and began his discourse. he seemed not to be in a good preaching mood. his wheels drove heavily. skirmishing around and around, he seemed to be reconnoitering his subject, finding no salient point for attack. the look of eager expectation in the faces of the people gave way to one of puzzled and painful solicitude. the heads of the expectant southerners drooped a little, and the betting kentuckian betrayed his feelings by a lowering of the under-jaw and sundry nervous twitchings of the muscles of his face. the good bishop kept talking, but the wheels revolved slowly. it was a solemn and "trying time" to at least a portion of the audience, as the bishop, with head bent over the bible and his broad chest stooped, kept trying to coax a response from that obstinate text. it seemed a lost battle. at last a sudden flash of thought seemed to strike the speaker, irradiating his face and lifting his form as he gave it utterance, with a characteristic throwing back of his shoulders and upward sweep of his arms. those present will never forget what followed. the afflatus of the true orator had at last fallen upon him; the mighty ship was launched, and swept out to sea under full canvas. old kentucky was on her feet that night in san jose. it was indescribable. flashes of spiritual illumination, explosive bursts of eloquent declamation, sparkles of chastened wit, appeals of overwhelming intensity, followed like the thunder and lightning of a southern storm. the church seemed literally to rock. "amens" burst from the electrified methodists of all sorts; these were followed by "hallelujahs" on all sides; and when the sermon ended with a rapturous flight of imagination, half the congregation were on their feet, shaking hands, embracing one another, and shouting. in the tremendous religious impression made, criticism was not thought of. even the betting kentuckian showed by his heaving breast and tearful eyes how far he was borne out of the ordinary channels of his thought and feeling. he came to sonora, where i was pastor, to preach to the miners. it was our second year in california, and the paternal element in his nature fell on us like a benediction. he preached three noble sermons to full houses in the little church on the red hillside, but his best discourses were spoken to the young preacher in the tiny parsonage. catching the fire of the old polemics that led to the battles of the giants in the west, he went over the points of difference between the arminiau and calvinistic schools of theology in a way that left a permanent deposit in a mind which was just then in its most receptive state. we felt very lonesome after he had left. it was like a touch of home to have him with us then, and in his presence we have had the feeling ever since. what a home will heaven be where all such men will be gathered in one company! it was a warm day when he went down to take the stage for mariposa. the vehicle seemed to be already full of passengers, mostly mexicans and chinamen. when the portly bishop presented himself, and essayed to enter, there were frowns and expressions of dissatisfaction. "mucho malo!" exclaimed a dark-skinned senorita, with flashing black eyes. "make room in there--he's got to go," ordered the bluff stage-driver, in a peremptory tone. there were already eight passengers inside, and the top of the coach was covered as thick as robins on a sumac-bush. the bishop mounted the step and surveyed the situation. the seat assigned him was between two mexican women, and as he sunk into the apparently insufficient space there was a look of consternation in their faces--and i was not surprised at it. but scrouging in, the newcomer smiled, and addressed first one and then another of his fellow-passengers with so much friendly pleasantness of manner that the frowns cleared away from their faces, even the stolid, phlegmatic chinamen brightening up with the contagious good humor of the "big mellican man." when the driver cracked his whip, and the spirited mustangs struck off in the california gallop --the early californians scorned any slower gait--everybody was smiling. staging in california in those days was often an exciting business. there were "opposition" lines on most of the thoroughfares, and the driving was furious and reckless in the extreme. accidents were strangely seldom when we consider the rate of speed, the nature of the roads, and the quantity of bad whisky consumed by most of the drivers. many of these drivers made it a practice to drink at every stopping-place. seventeen drinks were counted in one forenoon ride by one of these thirsty jehus. the racing between the rival stages was exciting enough. lashing the wiry little horses to full speed, there was but one thought, and that was, to "get in ahead." a driver named white upset his stage between montezuma and knight's ferry on the stanislaus, breaking his right-leg above the knee. fortunately none of the passengers were seriously hurt, though some of them were a little bruised and frightened. the stage was righted, white resumed the reins, whipped his horses into a run, and, with his broken limb hanging loose, ran into town ten minutes ahead of his rival, fainting as he was lifted from the seat. "old man holden told me to go in ahead or smash everything, and i made it!" exclaimed white, with professional pride. the bishop was fortunate enough to escape with unbroken bones as he dashed from point to point over the california hills and valleys, though that heavy body of his was mightily shaken up on many occasions. he came to california on his second visit, in , when the war was raging. an incident occurred that gave him a very emphatic reminder that those were troublous times. he was at a camp-meeting in the san joaquin valley, near linden--a place famous for gatherings of this sort. the bishop was to preach at eleven o'clock, and a great crowd was there, full of high expectation. a stranger drove up just before the hour of service--a broad shouldered man in blue clothes, and wearing a glazed cap. he asked to see bishop kavanaugh privately for a few moments. they retired to "the preachers' tent," and the stranger said: "my name is jackson--colonel jackson, of the united states army. i have a disagreeable duty to perform. by order of general mcdowell, i am to place you under arrest, and take you to san francisco." "can you wait until i preach my sermon?" asked the bishop, good-naturedly; "the people expect it, and i don't want to disappoint them if it can be helped." "how long will it take you?" "well, i am a little uncertain when i get started, but i will try not to be too long." "very well; go on with your sermon, and if you have no objection i will be one of your hearers." the secret was known only to the bishop and his captor. the sermon was one of his best--the vast crowd of people were mightily moved, and the colonel's eyes were not dry when it closed. after a prayer, and a song, and a collection, the bishop stood up again before the people, and said: "i have just received a message which makes it necessary for me to return to san francisco immediately. i am sorry that i cannot remain longer, and participate with you in the hallowed enjoyments of the occasion. the blessing of god be with you, my brethren and sisters." his manner was so bland, and his tone so serene, that nobody had the faintest suspicion as to what it was that called him away so suddenly. when he drove off with the stranger, the popular surmise was that it was a wedding or a funeral that called for such haste. these are two events in human life that admit of no delays: people must be buried, and they will be married. the bishop reported to general mason, provost-marshal general, and was told to hold himself as in duress until further orders, and to be ready to appear at headquarters at short notice when called for. he was put on parole, as it were. he came down to san jose and stirred my congregation with several of his powerful discourses. in the meantime the arrest had gotten into the newspapers. nothing that happens escapes the california journalists, and they have even been known to get hold of things that never happened at all. it seems that someone in the shape of a man had made an affidavit that bishop kavanaugh had come to the pacific coast as a secret agent of the southern confederacy, to intrigue and recruit in its interest! five minutes' inquiry would have satisfied general mcdowell of the silliness of such a charge--but it was in war times, and he did not stop to make the inquiry. in kentucky the good old bishop had the freedom of the whole land, coming and going without hinderance; but the fact was, he had not been within the confederate lines since the war began. to make such an accusation against him was the climax of absurdity. about three weeks after the date of his arrest, i was with the bishop one morning on our way to judge moore's beautiful country-seat, near san jose, situated on the far-famed alameda. the carriage was driven by a black man named henry. passing the post-office, i found, addressed to the bishop in my care, a huge document bearing the official stamp of the provost-marshal's office, san francisco. he opened and read it as we drove slowly along, and as he did so he brightened up, and turning to henry, said: "henry, were you ever a slave?" "yes, sah; in mizzoory," said henry, showing his white teeth. "did you ever get your free-papers?" "yes, sah--got 'em now." "well, i have got mine--let's shake hands." and the bishop and henry had quite a handshaking over this mutual experience. henry enjoyed it greatly, as his frequent chucklings evinced while the judge's fine bays were trotting along the alameda. (i linger on the word alameda as i write it. it is at least one beneficent trace of the early jesuit fathers who founded the san jose and santa clara missions a hundred years ago. they planted an avenue of willows the entire three miles, and in that rich, moist soil the trees have grown until their trunks are of enormous size, and their branches, overarching the highway with their dense shade, make a drive of unequaled beauty and pleasantness. the horse-cars have now taken away much of its romance, but in the early days it was famous for moonlight drives and their concomitants and consequences. a long-limbed four-year-old california colt gave me a romantic touch of a different sort, nearly the last time i was on the alameda, by running away with the buggy, and breaking it and me--almost--to pieces. i am reminded of it by the pain in my crippled right-shoulder as i write these lines in july, . but still i say, blessings on the memory of the fathers who planted the willows on the alameda!) an intimation was given the bishop that if he wanted the name of the false-swearer who had caused him to be arrested he could have it. "no, i don't want to know his name," said he; "it will do me no good to know it. may god pardon his sin, as i do most heartily!" a really strong preacher preaches a great many sermons, each of which the hearers claim to be the greatest sermon of his life. i have heard of at least a half dozen "greatest" sermons by bascom and pierce, and other noted pulpit orators. but i heard one sermon by kavanaugh that was probably indeed his master-effort. it had a history. when the bishop started to oregon, in , i placed in his hands bascom's lectures, which, strange to say, he had never read. of these lectures the elder dr. bond said "they would be the colossal pillars of bascom's fame when his printed sermons were forgotten." those lectures wonderfully anticipated the changing phases of the materialistic infidelity developed since his day, and applied to them the reductio ad absurdum with relentless and resistless power. on his return from oregon, kavanaugh met and presided over the annual conference at san jose. one of his old friends, who was troubled with skeptical thoughts of the materialistic sort, requested him to preach a sermon for his special benefit. this request, and the previous reading of the lectures, directed his mind to the topic suggested with intense earnestness. the result was, as i shall always think, the sermon of a lifetime. the text was, there is a spirit in man; and the inspiration of the almighty giveth them understanding. (job xxxii. .) that mighty discourse was a demonstration of the truth of the affirmation of the text. i will not attempt to reproduce it here, though many of its passages are still vivid in my memory. it tore to shreds the sophistries by which it was sought to sink immortal man to the level of the brutes that perish; it appealed to the consciousness of his hearers in red-hot logic that burned its way to the inmost depths of the coldest and hardest hearts; it scintillated now and then sparkles of wit like the illuminated edges of an advancing thundercloud; borne, on the wings of his imagination, whose mighty sweep took him beyond the bounds of earth, through whirling worlds and burning suns, he found the culmination of human destiny, in the bosom of eternity, infinity, and god. the peroration was indescribable. the rapt audience reeled under it. inspiration! the man of god was himself its demonstration, for the power of his word was not his own. "o i thank god that be sent me here this day to hear that sermon! i never heard any thing like it, and i shall never forget it, or cease to be thankful that i heard it," said the rev. dr. charles wadsworth, of philadelphia, the great presbyterian preacher--a man of genius, and a true prose-poet, as any one will concede after reading his published sermons. as he spoke, the tears were in his eyes, the muscles of his face quivering, and his chest heaving with irrepressible emotion. nobody who heard that discourse will accuse me of too high coloring in this brief description of it. "don't you wish you were a kentuckian?" was the enthusiastic exclamation of a lady who brought from kentucky a matchless wit and the culture of science hill academy, which has blessed and brightened so many homes from the ohio to the sacramento. i think the bishop was present on another occasion when the compliment he received was a left-handed one. it was at the stone church in suisun valley. the bishop and a number of the most prominent ministers of the pacific conference were present at a saturday-morning preaching appointment. they had all been engaged in protracted labors, and, beginning with the bishop, one after another declined to preach. the lot fell at last upon a boyish-looking brother of very small stature, who labored under the double disadvantage of being a very young preacher, and of having been reared in the immediate vicinity. the people were disappointed and indignant when they saw the little fellow go into the pulpit. none showed their displeasure more plainly than uncle ben brown, a somewhat eccentric old brother, who was one of the founders of that society, and one of its best official members. he sat as usual on a front seat, his thick eyebrows fiercely knit, and his face wearing a heavy frown. he had expected to hear the bishop, and this was what it had come to! he drew his shoulders sullenly down, and, with his eyes bent upon the floor, nursed his wrath. the little preacher began his sermon, and soon astonished everybody by the energy with which he spoke. as he proceeded, the frown on uncle ben's face relaxed a little; at length he lifted his eyes and glanced at the speaker in surprise. he did not think it was in him. with abnormal fluency and force, the little preacher went on with the increasing sympathy of his audience, who were feeling the effects of a generous reaction in his favor. uncle ben, touched a little with honest obstinacy as he was, gradually relaxed in the sternness of his looks, straightening up by degrees until he sat upright facing the speaker in a sort of half-reluctant, pleased wonder. just at the close of a specially vigorous burst of declamation, the old man exclaimed, in a loud voice: "bless god! he uses the weak things of this world to confound the mighty!" casting around a triumphant glance at the bishop and other preachers. this impromptu remark was more amusing to the hearers than helpful to the preacher, i fear; but it was away the dear old brother had of speaking out in meeting. i must end this sketch. i have dipped my pen in my heart in writing it. the subject of it has been friend, brother, father, to me since the day he looked in upon us in the little cabin on the hill in sonora, in . when i greet him on the hills of heaven, he will not be sorry to be told that among the many in the far west to whom he was helpful was the writer of this too imperfect sketch. sanders. he belonged to the church militant. in looks he was a cross between a grenadier and a trappist. but there was more soldier than monk in his nature. he was over six feet high, thin as a bolster, and straight as a long-leaf pine. his anatomy was strongly conspicuous. he was the boniest of men. there were as many angles as inches in the lines of his face. his hair disdained the persuasions of comb or brush, and rose in tangled masses above a head that would have driven a phrenologist mad. it was a long head in every sense. his features were strong and stern, his nose one that would have delighted the great napoleon--it was a grand organ. you said at once, on looking at him, here is a man that fears neither man nor devil. the face was an honest face. when you looked into those keen, dark eyes, and read the lines of that stormy countenance, you felt that it would be equally impossible for him to tell a lie or to fear the face of man. this was john sanders, one of the early california methodist preachers. he went among the first to preach the gospel to the gold-hunters. he got a hearing where some failed. his sincerity and brainpower commanded attention, and his pluck enforced respect. in one case it seemed to be needed. he was sent to preach in placerville, popularly called in the old days, "hangtown." it was then a lively and populous place. the mines were rich, and gold-dust was abundant as good behavior was scarce. the one church in the town was a "union church," and it was occupied by sanders and a preacher of another sect on alternate sundays. all went well for many months, and if there were no sinners converted in that camp, the few saints were at peace. it so happened that sanders was called away for a week or two, and on his return he found that a new preacher had been sent to the place, and that he had made an appointment to preach on his (sanders's) regular day. having no notion of yielding his rights, sanders also inserted a notice in the papers of the town that he would preach at the same time and place. the thing was talked about in the town and vicinity, and there was a buzz of excitement. the miners, always ready for a sensation, became interested, and when sunday came the church could not hold the crowd. the strange preacher arrived first, entered the pulpit, knelt a few moments in silent devotion, according to custom, and then sat and surveyed the audience which was surveying him with curious interest. he was a tall, fine-looking man, almost the equal of sanders in height, and superior to him in height. he was a kentuckian originally, but went from ohio to california, and was a full-grown man, of the best western physical type. in a little while sanders entered the church, made his way through the dense crowd, ascended the pulpit, cast a sharp glance at the intruder, and sat down. there was a dead silence. the two preachers gazed at the congregation; the congregation gazed at the preachers. a pin might have been heard to fall. sanders was as imperturbable as a statue, but his lips were pressed together tightly, and there was a blaze in his eyes. the strange preacher showed signs of nervousness, moving his hands and feet, and turning this way and that in his seat. it was within five minutes of the time for opening the service. the stranger rose, and was in the act of taking hold of the bible that lay on the cushion in front of him, when sanders rose to his full height, stepped in front of him, and darting lightning from his eyes as he looked him full in the face, said: "i preach here today, sir!" that settled it. there was no mistaking that look or tone. the tall stranger muttered an inarticulate protest and subsided. sanders proceeded with the service, making no allusion to the difficulty until it was ended. then he proposed a meeting of the citizens the next evening to adjudicate the case. the proposal was acceded to. the church was again crowded; and though ecclesiastically sanders was in the minority, with the genuine love for fair-play which is a trait of anglo-saxon character, he was sustained by an overwhelming majority. it is likely, too, that his plucky bearing the, day before made him some votes. a preacher who would fight for his rights suited those wild fellows better than one who would assert a claim that he would not enforce. sanders preached to larger audiences after this episode in his "hangtown" pastorate. it was after this that he went out one day to stake off a lot on which he proposed to build a house of worship. it was near the roman catholic church. a zealous irishman, who was a little more than half drunk, was standing by. evidently he did not like any such heretical movements, and, after sanders had placed the stake in the earth, the hibernian stepped forward and pulled it up. "i put the stake back in its place. he pulled it up again. i put it back. he pulled it up again. i put it back once more. he got fiery mad by this time, and started at me with an ax in his hand. i had an ax in my hand, and as its handle was longer than his, i cut him down." the poor fellow had waked up the fighting preacher, and fell before the sweep of sanders's ax. he dodged as the weapon descended, and saved his life by doing so. he got an ugly wound on the shoulder, and kept his bed for many weeks. when he rose from his bed he had a profound regard for sanders, whose grit excited his admiration. there was not a particle of resentment in his generous irish heart. he became a sober man, and it was afterward a current pleasantry among the "boys" that he was converted by the use of the carnal weapon wielded by that spunky parson. nobody blamed sanders for his part in the matter. it was a fair fight, and he had the right on his side. had he shown the white feather, that would have damaged him with a community in whose estimation courage as the cardinal virtue. sanders was popular with all classes, and placerville remembers him to this day. he was no rose-water divine, but thundered the terrors of the law into the ears of those wild fellows with the boldness of a john the baptist. many a sinner quaked under his stern logic and fiery appeals, and some repented. i shall never forget a sermon he preached at san jose. he was in bad health, and his mind was morbid and gloomy. his text was, who hath hardened himself against him, and hath prospered? (job ix. .) the thought that ran through the discourse was the certainty that retribution would overtake the guilty. god's law will be upheld. it protects the righteous, but must crush the disobedient. he swept away the sophisms by which men persuade themselves that they can escape the penalty of violated law; and it seemed as if we could almost hear the crash of the tumbling wrecks of hopes built on false foundations. god almighty was visible on the throne of his power, armed with the even thunders of his wrath. "who hath defied god and escaped?" he demanded, with flashing eyes and trumpet voice. and then he recited the histories of nations and men that had made the fatal experiment, and the doom that had whelmed them in utter ruin. "and yet you hope to escape!" he thundered to the silent and awestruck men and women before him. "you expect that god will abrogate his law to please you; that he will tear down the pillars of his moral government that you may be saved in your sins! o fools, fools, fools! there is no place but hell for such a folly as this!" his haggard face, the stern solemnity of his voice, the sweep of his long arms, the gleam of his deep-set eyes, and the vigor of his inexorable logic, drove that sermon home to the listeners. he was the keenest of critics, and often merciless. he was present at a camp-meeting near san jose, but too feeble to preach. i was there, and disabled from, the effects of the california poison-oak. that deceitful shrub! its pink leaves smile at you as pleasantly as sin, and, like sin, it leaves its sting. the "preachers' tent" was immediately in the rear of "the stand," and sanders and i lay inside and listened to the sermons. he was in one of his caustic moods, and his comments were racy enough, though not helpful to devotion. "there! he yelled, clapped his hands, stamped, and--said nothing!" the criticism was just: the brother in the stand was making a great noise, but there was not much meaning in what he said. "he made one point only--a pretty good apology for lazarus's poverty." this was said at the close of an elaborate discourse on "the rich man and lazarus," by a brother who sometimes got "in the brush." "he isn't touching his text--he knows no more theology than a guinea-pig. words, words, words!" this last criticism was directed against a timid young divine, who was badly frightened, but who has since shown that there was good metal in him. if he had known what was going on just behind him, he would have collapsed entirely in that tentative effort at preaching the gospel. sanders kept up this running fire of criticism at every service, cutting to the bone, at every blow, and giving me new light on homiletics, if he did not promote my enjoyment of the preaching. he had read largely and thought deeply, and his incisive intellect had no patience with what was feeble or pointless. disease settled upon his lungs, and he rapidly declined. his strong frame grew thinner and thinner, and his mind alternated between moods of morbid bitterness and transient buoyancy. as the end approached, his bitter moods were less frequent, and an unwonted tenderness came into his words and tones. he went to the lokonoma springs, in the hills of napa county, and in their solitudes he adjusted himself to the great change that was drawing near. the capacious blue sky that arched above him, the sighing of the gentle breeze through the solemn pines, the repose of the encircling mountains, bright with sunrise, or purpling in the twilight, distilled the soothing influences of nature into his spirit, and there was a great calm within. beyond those california hills the hills of god rose in their supernal beauty before the vision of his faith, and when the summons came for him one midnight, his soul leaped to meet it in a ready and joyous response. on a white marble slab, at the "stone church," in suisun valley, is this inscription: rev. john sanders. many are the afflictions of the righteous, but the lord delivereth him out of them all. the spring flowers were blooming on the grave when i saw it last. a day. ah, that blessed, blessed day! i had gone to the white sulphur springs, in napa county, to get relief from the effects of the california poison-oak. gay deceiver! with its tender green and pink leaves, it looks as innocent and smiling as sin when it woos youth and ignorance. like sin, it is found everywhere in that beautiful land. many antidotes are used, but the only sure way of dealing with it is to keep away from it. again, there is an analogy: it is easier to keep out of sin than to get out when caught. these soft, pure white sulphur waters work miracles of healing, and attract all sorts of people. the weary and broken down man of business comes here to sleep, and eat, and rest; the woman of fashion, to dress and flirt; the loudly-dressed and heavily-bejeweled gambler, to ply his trade; happy bridal couples, to have the world to themselves; successful and unsuccessful politicians, to plan future triumphs or brood over defeats; pale and trembling invalids, to seek healing or a brief respite from the grave; families escaping from the wind and fog of the bay, to spend a few weeks where they can find sunshine and quiet--it is a little world in itself. the spot is every way beautiful, but its chief charm is its isolation. though within a few hours' ride of san francisco, and only two miles from a railroad-station, you feel as if you were in the very heart of nature --and so you are. winding along the banks of a sparkling stream, the mountains--great masses of leafy green--rise abruptly on either hand; the road bends this way and that until a sudden turn brings you to a little valley hemmed in all around by the giant hills. a bold, rocky projection just above the main hotel gives a touch of ruggedness and grandeur to the scene. how delicious the feeling of rest that comes over you at once!--the world shut out, the hills around, and the sky above. it was in , when the civil war was at its white heat. circumstances had given me undesired notoriety in that connection. i had been thrust into the very vortex of its passion, and my name made the rallying-cry of opposing elements in california. the guns of manassas, cedar mountain, and the chickahominy, were echoed in the foothills of the sierras, and in the peaceful valleys of the far-away pacific coast. the good sense of a practical, people prevented any flagrant outbreak on a large scale, but here and there a too ardent southerner said or did something that gave him a few weeks' or months' duress at fort alcatraz, and the honors of a bloodless martyrdom. i was then living at north beach, in full sight of that fortress. it was kindly suggested by several of my brother editors that it would be a good place for me. when, as my eye swept over the bay in the early morning, the first sight that met my gaze was its rocky ramparts and bristling guns, the poet's line would come to mind: "'t is distance lends enchantment to the view." i was just as close as i wanted to be. "i have good quarters for you," said the brave and courteous captain mcdougall, who was in command at the fort; "and knowing your penchant, i will let you have the freedom of a sunny corner of the island for fishing in good weather." the true soldier is sometimes a true gentleman. the name and image of another federal officer rise before me as i write. it is that of the heroic soldier, general wright, who went down with the "brother jonathan," on the oregon coast, in . he was in command of the department of the pacific during this stormy period of which i am speaking. i had never seen him, and i had no special desire to make his acquaintance. somehow fort alcatraz had become associated with his name for reasons already intimated. but, though unsought by me, an interview did take place. "it has come at last!" was my exclamation as i read the note left by an orderly in uniform notifying me that i was expected to report at the quarters of the commanding-general the next day at ten o'clock. conscious of my innocence of treason or any other crime against the government or society, my pugnacity was roused by this summons. before the hour set for my appearance at the military headquarters, i was ready for martyrdom or any thing else except alcatraz. i didn't like that. the island was too small, and too foggy and windy, for my taste. i thought it best to obey the order i had received, and so, punctually at the hour, i repaired to the headquarters on washington street, and ascending the steps with a firm tread and defiant feeling, i entered the room. general mason, provost-marshal, a scholar and polished gentleman, politely offered me a seat. "no; i prefer to stand," i said stiffly. "the general will see you in a few minutes," said he, resuming his work, while i stood nursing my indignation and sense of wrong. in a little while general wright entered--a tall and striking figure, silver-haired, blue-eyed, ruddy faced, with a mixture of the dash of the soldier and the benignity of a bishop. declining also his cordial invitation to be seated, i stood and looked at him, still nursing defiance, and getting ready to wear a martyr's crown. the general spoke: "did you know, sir, that i am perhaps the most attentive reader of your paper to be found in california?" "no; i was not aware that i had the honor of numbering the commanding-general of this department among my readers." (this was spoken with severe dignity.) "a lot of hotheads have for sometime been urging me to have you arrested on the ground that you are editing and publishing a disloyal newspaper. not wishing to do any injustice to a fellowman, i have taken means every week to obtain a copy of your paper, the pacific methodist; and allow me to say, sir, that no paper has ever come into my family which is such a favorite with all of us." i bowed, feeling that the spirit of martyrdom was cooling within me. the general continued: "i have sent for you, sir, that i might say to you, go on in your present prudent and manly course, and while i command this department you are as safe as i am." there i stood, a whipped man, my pugnacity all gone, and the martyr's crown away out of my reach. i walked softly downstairs, after bidding the general an adieu in a manner in marked contrast to that in which i had greeted him at the beginning of the interview. now that it is all over, and the ocean winds have wailed their dirges for him so many long years, i would pay a humble tribute to the memory of as brave and knightly a man as ever wore epaulettes or fought under the stars and stripes. he was of the type of sidney johnston, who fell at shiloh, and of mcpherson, who fell at kennesaw--all californians; all americans, true soldiers, who had a sword for the foe in fair fight in the open field, and a shield for woman, and for the noncombatant, the aged, the defenseless. they fought on different sides to settle forever a quarrel that was bequeathed to their generation, but their fame is the common inheritance of the american people. the reader is beginning to think i am digressing, but he will better understand what is to come after getting this glimpse of those stormy days in the sixties. the guests at the springs were about equally divided in their sectional sympathies. the gentlemen were inclined to avoid all exciting discussions, but the ladies kept up a fire of small arms. when the mails came in, and the latest news was read, comments were made with flashing eyes and flushed cheeks. the sabbath morning dawned without a cloud. i awoke with the earliest song of the birds, and was out before the first rays of the sun had touched the mountaintops. the coolness was delicious, and the air was filled with the sweet odors of aromatic shrubs and flowers, with a hint of the pine-forests and balsam-thickets from the higher altitudes. taking a breakfast solus, pocket-bible in hand i bent my steps up the gorge, often crossing the brook that wound its way among the thickets or sung its song at the foot of the great overhanging cliffs. a shining trout would now and then flash like a silver bar for a moment above the shaded pools. with light step a doe descending the mountain came upon me, and, gazing at me a moment or two with its soft eyes, tripped away. in a narrow pass where the stream rippled over the pebbles between two great walls of rock, a spotted snake crossed my path, hurrying its movement in fright. fear not, humble ophidian. the war declared between thee and me in the fifteenth verse of the third chapter of genesis is suspended for this one day. let no creature die today but by the act of god. here is the lake. how beautiful! how still! a landslide had dammed the stream where it flowed between steep, lofty banks, backing the waters over a little valley three or four acres in extent, shut in on all sides by the wooded hills, the highest of which rose from its northern margin. here is my sanctuary, pulpit, choir, and altar. a gigantic pine had fallen into the lake, and its larger branches served to keep the trunk above the water as it lay parallel with the shore. seated on its trunk, and shaded by some friendly willows that stretch their graceful branches above, the hours pass in a sort of subdued ecstasy of enjoyment. it is peace, the peace of god. no echo of the world's discords reaches me. the only sound i hear is the cooing of a turtledove away off in a distant gorge of the mountain. it floats down to me on the sabbath air with a pathos as if it voiced the pity of heaven for the sorrows of a world of sin, and pain, and death. the shadows of the pines are reflected in the pellucid depths, and ever and anon the faintest hint of a breeze sighs among their branches overhead. the lake lies without a ripple below, except when from time to time a gleaming trout throws himself out of the water, and, falling with a splash, disturbs the glassy surface, the concentric circles showing where he went down. sport on, ye shiny denizens of the deep; no angler shall cast his deceitful hook into your quiet haunts this day. through the foliage of the overhanging boughs the blue sky is spread, a thin, fleecy cloud at times floating slowly along like a watching angel, and casting a momentary shadow upon the watery mirror below. that sky, so deep and so solemn, woos me--lifts my thought till it touches the eternal. what mysteries of being lie beyond that sapphire sea? what wonders shall burst upon the vision when this mortal shall put on immortality? i open the book and read. isaiah's burning song makes new music to my soul attuned. david's harp sounds a sweeter note. the words of jesus stir to diviner depths. and when i read in the twenty-first chapter of revelation the apocalyptic promise of the new heavens and the new earth, and of the new jerusalem coming down from god out of heaven, a new glory seems to rest upon sky, mountain forest, and lake, and my soul is flooded with a mighty joy. i am swimming in the infinite ocean. not beyond that vast blue canopy is heaven; it is within my own ravished heart! thus the hours pass, but i keep no note of their flight, and the evening shadows are on the water before i come back to myself and the world. o hallowed day! o hallowed spot! foretaste and prophecy to the weary and burden-bowed soul of the new heavens and the new earth where its blessed ideal shall be a more blessed reality! it is nearly dark when i get back to the hotel. supper is over, but i am not hungry--i have feasted on the bread of angels. "did you know there was quite a quarrel about you this morning?" asks one of the guests. the words jar. in answer to my look of inquiry, he proceeds: "there was a dispute about your holding a religious service at the picnic grounds. they made it a political matter--one party threatened to leave if you did preach, the other threatened to leave if you did not preach. there was quite an excitement about it until it was found that you were gone, and then everybody quieted down." there is a silence. i break it by telling them how i spent the day, and then they are very quiet. the next sabbath every soul at the place united in a request for a religious service, the list headed by a high-spirited and brilliant pennsylvania lady who had led the opposing forces the previous sunday. winter-blossomed. i think i saw him the first sunday i preached in san jose, in . he was a notable-looking man. i felt attracted toward him by that indefinable sympathy that draws together two souls born to be friends. i believe in friendship at first sight. who that ever had a real friend does not? love at first sight is a different thing--it may be divine and eternal, or it may be a whim or a passing fancy. passion blurs and blinds in the region of sexual love: friendship is revealed in its own white light. i was introduced after the service to the stranger who had attracted my attention, and who had given the youthful preacher such a kind and courteous hearing. "this is major mccoy." he was a full head higher than anybody else as he stood in the aisle. he bowed with courtly grace as he took my hand, and his face lighted with a smile that had in it something more than a conventional civility. i felt that there was a soul beneath that dignified and courtly exterior. his head displayed great elevation of the cranium, and unusual breadth of forehead. it was what is called an intellectual head; and the lines around the eyes showed the traces of thought, and, as it seemed to me, a tinge of that sadness that nearly always lends its charm to the best faces. "i have met a man that i know i shall like," was my gratified exclamation to the mistress of the parsonage, as i entered. and so it turned out. he became one of the select circle to whom i applied the word friend in the sacredest sense. this inner circle can never be large. if you unduly enlarge it you dilute the quality of this wine of life. we are limited. there is only one heart large enough to hold all humanity in its inmost depths. my new friend lived out among the sycamores on the new almaden road, a mile from the city, and the cottage in which he lived with his cultured and loving household was one of the social paradises of that beautiful valley in which the breezes are always cool, and the flowers never fade. my friend interested me more and more. he had been a soldier, and in the mexican war won distinction by his skill and valor. he was with joe lane and his gallant indianians at juamantla, and his name was specially mentioned among those whose fiery onsets had broken the lines of the swarthy foe, and won against such heavy odds the bloody field. he was seldom absent from church on sunday morning, and now and then his inquiring, thoughtful face would be seen in my smaller audience at night. one unwelcome fact about him pained me, while it deepened my interest in him. he was a skeptic. bred to the profession of medicine and surgery, he became bogged in the depths of materialistic doubt. the microscope drew his thoughts downward until he could not see beyond second causes. the soul, the seat of which the scalpel could not find, he feared did not exist. the action of the brain, like that of the heart and lungs, seemed to him to be functional; and when the organ perished did not its function cease forever? he doubted the fact of immortality, but did not deny it. this doubt clouded his life. he wanted to believe. his heart rebelled against the negations of materialism, but his intellect was entangled in its meshes. the great question was ever in his thought, and the shadow was ever on his path. he read much on both sides, and was always ready to talk with any from whom he had reason to hope for new light or a helpful suggestion. did he also pray? we took many long rides and had many long talks together. pausing under the shade of a tree on the highway, the hours would slip away while we talked of life and death, and weighed the pros and cons of the mighty hope that we might live again, until the sun would be sinking into the sea behind the santa cruz mountains, whose shadows were creeping over the valley. he believed in a first cause. the marks of design in nature left in his mind no room to doubt that there was a designer. "the structure and adaptations of the horse harnessed to the buggy in which we sit, exhibit the infinite skill of a creator." on this basis i reasoned with him in behalf of all that is precious to christian faith and hope, trying to show (what i earnestly believe) that, admitting the existence of god, it is illogical to stop short of a belief in revelation and immortality. the rudest workman would not fling the fragments of his work away, if every useless bit of clay he trod on were a sentient thing. and does the wisest worker take quick human hearts, instead of stone, and hew and carve them one by one, nor heed the pangs with which they break? and more: if but creation's waste, would he have given us sense to yearn for the perfection none can earn, and hope the fuller life to taste? i think, if we most cease to be, it is cruelty refined to make the instincts of our mind stretch out toward eternity. wherefore i welcome nature's cry, as earnest of a life again, where thought shall never be in vain, and doubt before the light shall fly. my talks with him were helpful to me if not to him. in trying to remove his doubts my own faith was confirmed, and my range of thought enlarged. his reverent spirit left its impress upon mine. "mccoy is a more religious man than either you or i, doctor," said tod robinson to me one day in reply to a remark in which i had given expression to my solicitude for my doubting friend. yes, strange as it may seem, this man who wrestled with doubts that wrung his soul with intense agony, and walked in darkness under the veil of unbelief; had a healthful influence upon me because the attitude of his soul was that of a reverent inquirer, not that of a scoffer. the admirable little treatise of bishop mcilvaine, on the "evidences of christianity," cleared away some of his difficulties. a sermon of bishop kavanaugh, preached at his request, was a help to him. (that wonderful discourse is spoken of elsewhere in this volume.) a friend of his lay dying at redwood city. this friend, like himself; was a skeptic, and his doubts darkened his way as he neared the border of the undiscovered country. mccoy went to see him. the sick man, in the freedom of long friendship, opened his mind to him. the arguments of the good bishop were yet fresh in mccoy's mind, and the echoes of his mighty appeals were still sounding in his heart. seated by the dying man, he forgot his own misgivings, and with intense earnestness pointed the struggling soul to the saviour of sinners. "i did not intend it, but i was impelled by a feeling i could not resist. i was surprised and strangely thrilled at my own words as i unfolded to my friend the proofs of the truth of christianity, culminating in the incarnation, death, and resurrection, of jesus christ. he seemed to have grasped the truths as presented, a great calm came over him, and he died a believer. no incident of my life has given me a purer pleasure than this; but it was a strange thing! nobody could have had access to him as i had--i, a doubter and a stumbler all my life; it looks like the hand of god!" his voice was low, and his eyes were wet as he finished the narration. yes, the hand of god was in it--it is in every good thing that takes place on earth. by the bedside of a dying friend, the undercurrent of faith in his warily and noble heart swept away for the time the obstructions that were in his thought, and bore him to the feet of the blessed, pitying christ, who never breaks a bruised reed. i think he had more light, and felt stronger ever after. death twice entered his home-circle--once to convey a budding flower from the earth-home to the skies, and again like a lightning-stroke laying young manhood low in a moment. the instinct within him, stronger than doubt, turned his thought in those dark hours toward god. the ashes of the earthly hopes that had perished in the fire of fierce calamity, and the tears of a grief unspeakable, fertilized and watered the seed of faith which was surely in his heart. the hot furnace-fire did not harden this finely-tempered soul. but still he walked in darkness, doubting, doubting, doubting all he most wished to believe. it was the infirmity of his constitution, and the result of his surroundings. he went into large business enterprises with mingled success and disappointment. he went into politics, and though he bore himself nobly and gallantly, it need not be said that that vortex does not usually draw those who are within its whirl heavenward. he won some of the prizes that were fought for in that arena where the noblest are in danger of being soiled, and where the baser metal sinks surely to the bottom by the inevitable force of moral gravitation. from time to time we were thrown together, and i was glad to know that the great question was still in his thought, and the hunger for truth was still in his heart. ill health sometimes made him irritable and morbid, but the drift of his inner nature was unchanged. his mind was enveloped in mists, and sometimes tempests of despair raged within him; but his heart still thirsted for the water of life. a painful and almost fatal railway accident befell him. he was taken to his ranch among the quiet hills of shasta county. this was the final crisis in his life. shut out from the world, and shut in with his own thoughts and with god, he reviewed his life and the argument that had so long been going on in his mind. he was now quiet enough to hear distinctly the still small voice whose tones he could only half discern amid the clamors of the world when he was a busy actor on its stage. nature spoke to him among the hills, and her voice is god's. the great primal instincts of the soul, repressed in the crowd or driven into the background by the mob of petty cares and wants, now had free play in the nature of this man whose soul had so long cried out of the depths for the living god. he prayed the simple prayer of trust at which the gate flies open for the believing soul to enter into the peace of god. he was born into the new life. the flower that had put forth its abortive buds for so many seasons, burst into full bloom at last. with the mighty joy in his heart, and the light of the immortal hope beaming upon him, he passed into the world of certainties. a virginian in california. "hard at it, are you, uncle?" "no, sah--i's workin' by de day, an' i an't a-hurtin' myself." this answer was given with a jolly laugh as the old man leaned on his pick and looked at me. "you looked so much like home-folks that i felt like speaking to you. where are you from?" "from virginny, sah!" (pulling himself up to his full height as he spoke). "where's you from, massa?" "i was brought up partly in virginia too?" "wbar'bouts, in virginny?" "mostly in lynchburg." "lynchburg! dat's whar i was fotched up. i belonged to de widder tate, dat lived on de new london road. gib me yer han', massa!" he rushed up to the buggy, and taking my extended hand in his huge fist he shook it heartily, grinning with delight. this was uncle joe, a perfect specimen of the old virginia "uncle," who had found his way to california in the early days. yes, he was a perfect specimen--black as night, his lower limbs crooked, arms long, hands and feet very large. his mouth was his most striking feature. it was the orator's mouth in size, being larger than that of henry clay--in fact, it ran almost literally from ear to ear. when he opened it fully, it was like lifting the lid of a box. uncle joe and i became good friends at once. he honored my ministry with his presence on sundays. there was a touch of dandyism in him that then and there came out. clad in a blue broadcloth dress-coat of the olden cut, vest to match, tight-fitting pantaloons, stove-pipe hat, and yellow kid gloves, he was a gorgeous object to behold. he knew it, and there was a pleasant self-consciousness in the way he bore himself in the sanctuary. uncle joe was the heartiest laugher i ever knew. he was always as full of happy life as a frisky colt or a plump pig. when he entered a knot of idlers on the streets, it was the signal or a humorous uproar. his quaint sayings, witty repartee, and contagious laughter, never failed. he was as agile as a monkey, and his dancing was a marvel. for a dime he would "cut the pigeon wing," or give a "double-shuffle" or "breakdown" in a way that made the beholder dizzy. what was uncle joe's age nobody could guess--he had passed the line of probable surmising. his own version of the matter on a certain occasion was curious. we had a colored female servant--an old-fashioned aunty from mississippi--who, with a bandanna handkerchief on her head, went about the house singing the old methodist choruses so naturally that it gave us a home-feeling to have her about us. uncle joe and aunt tishy became good friends, and he got into the habit of dropping in at the parsonage on sunday evenings to escort her to church. on this particular occasion i was in the little study adjoining the dining-room where aunt tishy was engaged in cleaning away the dishes after tea. i was not eavesdropping, but could not help hearing what they said. my name was mentioned. "o yes," said uncle joe; "i knowed massa fitchjarals back dar in virginny. i use ter hear 'im preach dar when i was a boy." there was a silence. aunt tishy couldn't swallow that. uncle joe's statement, if true, would have made me more than a hundred years old, or brought him down to less than forty. the latter was his object; he wanted to impress aunt tishy with the idea that he was young-enough to be an eligible gallant to any lady. but it failed. that unfortunate remark ruined uncle joe's prospects: aunt tishy positively refused to go with him to church, and just as soon as he had left she went into the sitting-room in high disgust, saying: "what made dat nigger tell me a lie like dat? tut, tut, tut!" she cut him ever after, saying she would n't keep company with a liar, "even if he was from de souf." aunt tishy was a good woman, and had some old-time notions. as a cook, she was discounted a little by the fact that she used tobacco, and when it got into the gravy it was not improving to its flavor. uncle joe was in his glory at a dinner-party, where he could wait on the guests, give droll answers to the remarks made to call him out, and enliven the feast by his inimitable and "catching" laugh. in a certain circle no occasion of the sort was considered complete without his presence there was no such thing as dullness when he was about. his peculiar wit or his simplicity was brought out at a dinner-party one day at dr. bascom's. there was a large gathering of the leading families of san jose and vicinity, and uncle joe was there in his jolliest mood. mrs. bascom, whose wit was then the quickest and keenest in all california, presided, and enough good things were said to have made a reputation for sidney smith or douglas jerrold. mrs. bascom, herself a virginian by extraction, had engaged in a laughing colloquy with uncle joe, who stood near the head of the table waving a bunch of peacock's feathers to keep off the flies. "missus, who is yer kinfolks back dar in virginny, any way?" the names of several were mentioned. "why, dem's big folks," said uncle joe. "yes," said she, laughingly; "i belong to the first families of virginia." "i don't know 'bout dat, missus. i was dar 'fore you was, an' i don't 'long to de fus' families!" he looked at it from a chronological rather than a genealogical standpoint, and, strange to say, the familiar phrase had never been heard by him before. uncle joe joined the church. he was sincere in his profession. the proof was found in the fact that he quit dancing. no more "pigeon wings," "double-shuffles," or "breakdowns," for him--he was a "perfessor." he was often tempted by the offer of coin, but he stood firm. "no, sah; i's done dancin', an' don't want to be discommunicated from de church," he would say, good-naturedly, as he shied off, taking himself away from temptation. a very high degree of spirituality could hardly be expected from uncle joe at that late day; but he was a christian after a pattern of his own --kind-hearted, grateful, simple-minded, and full of good humor. his strength gradually declined, and he was taken to the county hospital, where his patience and cheerfulness conciliated and elicited kind treatment from everybody. his memories went back to old virginia, and his hopes looked up to the heaven of which his notions were as simple as those of a little child. in the simplicity of a child's faith he had come to jesus, and i doubt not was numbered among his little ones. among the innumerable company that shall be gathered on mount zion from every kindred, tribe, and tongue, i hope to meet my humble friend, uncle joe. at the end. among my acquaintances at san jose, in , was a young kentuckian who had come down from the mines in bad health. the exposure of mining-life had been too severe for him. it took iron constitutions to stand all day in almost ice-cold water up to the waist with a hot sun pouring down its burning rays upon the head and upper part of the body. many a poor fellow sunk under it at once, and after a few days of fever and delirium was taken to the top of an adjacent hill and laid to rest by the hands of strangers. others, crippled by rheumatic and neuralgic troubles, drifted into the hospitals of san francisco, or turned their faces sadly toward the old homes which they had left with buoyant hopes and elastic footsteps. others still, like this young kentuckian, came down into the valleys with the hacking cough and hectic flush to make a vain struggle against the destroyer that had fastened upon their vitals, nursing often a vain hope of recovery to the very last. ah, remorseless flatterer! as i write these lines, the images of your victims crowd before my vision: the strong men that grew weak, and pale, and thin, but fought to the last inch for life; the noble youths who were blighted just as they began to bloom; the beautiful maidens etherealized into almost more than mortal beauty by the breath of the death-angel, as autumn leaves, touched by the breath of winter, blush with the beauty of decay. my young friend indulged no false hopes. he knew he was doomed to early death, and did not shrink from the thought. one day, as we were conversing in a store uptown, he said: "i know that i have at most but a few months to live, and i want to spend them in making preparation to die. you will oblige me by advising me what books to read. i want to get clear views of what i am to do, and then do it." it need scarcely be said that i most readily complied with his request, and that first and chiefly i advised him to consult the bible, as the light to his path and the lamp to his feet. other books were suggested, and a word with regard to prayerful reading was given, and kindly received. one day i went over to see my friend. entering his room, i found him sitting by the fire with it table by his side, on which was lying a bible. there was an unusual flush in his face, and his eye burned with unusual brightness. "how are you today?" i asked. "i am annoyed, sir--i am indignant," he said. "what is the matter?" "mr. ----, the--preacher, has just left me. he told me that my soul cannot be saved unless i perform two miracles: i must, he said, think of nothing but religion, and be baptized by immersion. i am very weak, and cannot fully control my mental action--my thoughts will wander in spite of myself. as to being put under the water, that would be immediate death; it would bring on a hemorrhage of the lungs, and kill me." he leaned his head on the table and panted for breath, his thin chest heaving. i answered: "mr.--is a good man, but narrow. he meant kindly in the foolish words he spoke to you. no man, sick or well, can so control the action of his mind as to force his thoughts wholly into one channel. i cannot do it, neither can any other man. god requires no such absurdity of you or anybody else. as to being immersed, that seems to be a physical impossibility, and he surely does not demand what is impossible. my friend, it really makes little difference what mr.--says,or what i say, concerning this matter. what does god say? let us see." i took up the bible, and he turned a face upon me expressing the most eager interest. the blessed book seemed to open of itself to the very words that were wanted. "like as a father pitieth his children, so the lord pitieth them that fear him." "he knoweth our frame, and remembereth that we are dust." "ho, everyone that thirsteth, come to the waters." glancing at him as i read, i was struck with the intensity of his look as he drank in every word. a traveler dying of thirst in the desert could not clutch a cup of cold water more eagerly than he grasped these tender words of the pitying father in heaven. i read the words of jesus: "come unto me all ye that labor and are heavy-laden, and i will give you rest." "him that cometh unto me i will in no wise east out." "this is what god says to you, and these are the only conditions of acceptance. nothing is said about any thing but the desire of your heart and the purpose of your soul. o my friend, these words are for you!" the great truth flashed upon his mind, and flooded it with light. he bent his head and wept. we knelt and prayed together, and when we rose from our knees he said softly, as the tears stole, down his face: "it is all right now--i see it clearly; i see it clearly!" we quietly clasped hands, and sat in silent sympathy. there was no need for any words from me; god had spoken, and that was enough. our hearts were singing together the song without words. "you have found peace at the cross--let nothing disturb it," i said, as he pressed my hand at the door as we left. it never was disturbed. the days that had dragged so wearily and anxiously during the long, long months, were now full of brightness. a subdued joy shone in his face, and his voice was low and tender as he spoke of the blessed change that had passed upon him. the book whose words had been light and life to him was often in his hand, or lay open on the little table in his room. he never lost his hold upon the great truth he had grasped, nor abated in the fullness of his joy. i was with him the night he died. he knew the end was at hand, and the thought filled him with solemn joy. his eyes kindled, and his wasted features fairly blazed with rapture as he said, holding my hand with both of his: "i am glad it will all soon, be over. my peace has been unbroken since that morning when god sent you to me. i feel a strange, solemn joy a the thought that i shall soon know all." before daybreak the great mystery was disclosed to him, and as he lay in his coffin next day, the smile that lingered on his lips suggested the thought that he had caught a hint of the secret while yet in the body. among the casual hearers that now and then dropped in to hear a sermon in sonora, in the early days of my ministry there, was a man who interested me particularly. he was at that time editing one of the papers of the town, which sparkled with the flashes of his versatile genius. he was a true bohemian, who had seen many countries, and knew life in almost all its phases. he had written a book of adventure which found many readers and admirers. an avowed skeptic, he was yet respectful in his allusions to sacred things, and i am sure his editorial notices of the pulpit efforts of a certain young preacher who had much to learn were more than just. he was a brilliant talker, with a vein of enthusiasm that was very delightful. his spirit was generous and frank, and i never heard from his lips an unkind word concerning any human being. even his partisan editorials were free from the least tinge of asperity--and this is a supreme test of a sweet and courteous nature. in our talks he studiously evaded the one subject most interesting to me. with gentle and delicate skill he parried all my attempts to introduce the subject of religion in our conversations. "i can't agree with you on that subject, and we will let it pass" he would say, with a smile, and then he would start some other topic, and rattle on delightfully in his easy, rapid way. he could not stay long at a place, being a confirmed wanderer. he left sonora, and i lost sight of him. retaining. a very kindly feeling for this gentle-spirited and pleasant adventurer, i was loth thus to lose all trace of him. meeting a friend one day, on j street, in the city of sacramento, he said: "your old friend d--is at the golden eagle hotel. you ought to go and see him." i went at once. ascending to the third story, i found his room, and, knocking at the door, a feeble voice bade me enter. i was shocked at the spectacle that met my gaze. propped in an armchair in the middle of the room, wasted to a skeleton, and of a ghastly pallor, sat the unhappy man. his eyes gleamed with an unnatural brightness, and his features wore a look of intense suffering. "you have come too late, sir," he said, before i had time to say a word. "you can do me no good now. i have been sitting in this chair three weeks. i could not live a minute in any other position, hell could not be worse than the tortures i have suffered! i thank you for coming to see me, but you can do me no good--none, none!" he paused, panting for breath; and then he continued, in a soliloquizing way: "i played the fool, making a joke of what was no joking matter. it is too late. i can neither think nor pray, if praying would do any good. i can only suffer, suffer, suffer!" the painful interview soon ended. to every cheerful or hopeful suggestion which i made he gave but the one reply: "too late!" the unspeakable anguish of his look, as his eyes followed me to the door, haunted me for many a day, and the echo of his words, "too late!" lingered sadly upon my ear. when i saw the announcement of his death, a few days afterward, i asked myself the solemn question, whether i had dealt faithfully with this lighthearted, gifted man when he was within my reach. his last rook is before me now, as i pencil these lines. "john a--is dying over on the portrero, and his family wants you to go over and see him." it was while i was pastor in san francisco. a--was a member of my church, and lived on what was called the portrero, in the southern part of the city, beyond the long bridge. it was after night when i reached the little cottage on the slope above the bay. "he is dying and delirious," said a member of the family, as i entered the room where the sick man lay. his wife, a woman of peculiar traits and great religious fervor, and a large number of children and grandchildren, were gathered in the dying man's chamber and the adjoining rooms. the sick man--a man of large and powerful frame--was restlessly tossing and roving his limbs, muttering incoherent words, with now and then a burst of uncanny laughter. when shaken, he would open his eyes for an instant, make some meaningless ejaculation, and then they would close again. the wife was very anxious that he should have a lucid interval while i was there. "o i cannot bear to have him die without a word of farewell and comfort!" she said, weeping. the hours wore on, and the dying man's pulse showed that he was sinking steadily. still he lay unconscious, moaning and gibbering, tossing from side to side as far as his failing strength permitted. his wife would stand and gaze at him a few moments, and then walk the floor in agony. "he can't last much longer," said a visitor, who felt his pulse and found it almost gone, while his breathing became more labored. we waited in silence. a thought seemed to strike the wife. without saying a word, she climbed upon the bed, took her dying husband's head upon her lap, and, bending close above his face, began to sing. it was a melody i had never heard before--low, and sweet, and quaint. the effect was weird and thrilling as the notes fell tremulous from the singer's lips in the hush of that dead hour of the night. presently the dying man became more quiet, and before the song was finished he opened his eyes as a smile swept over his face, and as his glance fell on me i saw that he knew me. he called my name, and looked up in the face that bent above his own, and kissed it. "thank god!" his wife exclaimed, her hot tears falling on his face, that wore a look of strange serenity. then she half whispered to me, her face beaming with a softened light: "that old song was one we used to sing together when we were first married in baltimore." on the stream of music and memory he had floated back to consciousness, called by the love whose instinct is deeper and truer than all the science and philosophy in the world. at dawn he died, his mind clear, and the voice of prayer in his ears, and a look of rapture in his face. dan w--, whom i had known in the mines in the early days, had come to san jose about the time my pastorate in the place began. he kept a meat-market, and was a most genial, accommodating, and good-natured fellow. everybody liked him, and he seemed to like everybody. his animal spirits were unfailing, and his face never revealed the least trace of worry or care. he "took things easy," and never quarreled with his luck. such men are always popular, and dan was a general favorite, as the generous and honest fellow deserved to be. hearing that he was very sick, i went to see him. i found him very low, but he greeted me with a smile. "how are you today, dan?" i asked, in the offhand way of the old times. "it is all up with me, i guess," he replied, pausing to get breath between the words; "the doctor says i can't get out of this--i must leave in a day or two." he spoke in a matter-of-fact way, indicating that he intended to take death, as he had taken life, easy. "how do you feel about changing worlds, my old friend?" "i have no say in the matter. i have got to go, and that is all there is of it." that was all i ever got out of him. he told me he had not been to church for ten years, as "it was not in his line." he did not understand matters of that sort, he said, as his business was running a meat-market. he intended no disrespect to me or to sacred things--this was his way of putting the matter in his simple-heartedness. "shall i kneel here and pray with you?" i asked. "no; you needn't take the trouble, parson," he said, gently; "you see i've got to go, and that's all there is of it. i don't understand that sort of thing--it's not in my, line, you see. i've been in the meat business." "excuse me, my old friend, if i ask if you do not, as a dying man, have some thoughts about god and eternity?" "that's not in my line, and i couldn't do much thinking now any way. it's all right, parson--i've got to go, and old master will do right about it." thus he died without a prayer, and without a fear, and his case is left to the theologians who can understand it, and to the "old master" who will do right. i was called to see a lady who was dying at north beach, san francisco. her history was a singularly sad one, illustrating the ups and downs of california life in a startling manner. from opulence to poverty, and from poverty to sorrow, and from sorrow to death--these were the acts in the drama, and the curtain was about to fall on the last. on a previous visit i had pointed the poor sufferer to the lamb of god, and prayed at her bedside, leaving her calm and tearful. her only daughter, a sweet, fresh girl of eighteen, had two years ago betrothed herself to a young man from oregon, who had come to san francisco to study a profession. the dying mother had expressed a desire to see them married before her death, and i had been sent for to perform the ceremony. "she is unconscious, poor thing!" said a lady who was in attendance, "and she will fail of her dearest wish." the dying mother lay with a flushed face, breathing painfully, with closed eyes, and moaning piteously. suddenly her eyes opened, and she glanced inquiringly around the room. they understood her. the daughter and her betrothed were sent for. the mother's face brightened as they entered, and she turned to me and said, in a faint voice: "go on with the ceremony, or it will be too late for me. god bless you, darling!" she added as the daughter bent down sobbing, and kissed her. the bridal couple kneeled together by the bed of death, and the assembled friends stood around in solemn silence, while the beautiful formula of the church was repeated, the dying mother's eyes resting upon the kneeling daughter with an expression of unutterable tenderness. when the vows were taken that made them one, and their hands were clasped in token of plighted faith, she drew them both to her in a long embrace, and then almost instantly closed her eyes with a look of infinite restfulness, and never opened them again. of the notable men i met in the mines in the early days, there was one who piqued and puzzled my curiosity. he had the face of a saint with the habits of a debauchee. his pale and student-like features were of the most classic mold, and their expression singularly winning, save when at times a cynical sneer would suddenly flash over them like a cloud-shadow over a quiet landscape. he was a lawyer, and stood at the head of the bar. he was an orator whose silver voice and magnetic qualities often kindled the largest audiences into the wildest enthusiasm. nature had denied him no gift of body or mind requisite to success in life; but there was a fatal weakness in his moral constitution. he was an inveterate gambler, his large professional earnings going into the coffers of the faro and monte dealers. his violations of good morals in other respects were flagrant. he worked hard by day, and gave himself up to his vices at night. public opinion was not very exacting in those days, and his failings were condoned by a people who respected force and pluck, and made no close inquiries into a man's private life, because it would have been no easy thing to find one who, on the score of innocence, was entitled to cast the first stone. thus he lived from year to year, increasing his reputation as a lawyer of marked ability, and as a politician whose eloquence in every campaign was a tower of strength to his party. his fame spread until it filled the state, and his money still fed his vices. he never drank, and that cool, keen intellect never lost its balance, or failed him in any encounter on the hustings on at the bar. i often met him in public, but he never was known to go inside a church. once, when in a street conversation i casually made some reference to religion, a look of displeasure passed over his face, and he abruptly left me. i was agreeably surprised when, on more than one occasion, he sent me a substantial token of goodwill, but i was never able to analyze the motive that prompted him to do so. this remembrance softens the feelings with which these lines are penciled. he went to san francisco, but there was no change in his life. "it is the old story," said an acquaintance of whom i made inquiry concerning him: "he has a large and lucrative practice, and the gamblers get all he makes. he is getting gray, and he is failing a little. he is a strange being." it happened afterward that his office and mine were in the same building and on the same floor. as we met on the stairs, he would nod to me and pass on. i noticed that he was indeed "failing." he looked-weary and sad, and the cold or defiant gleam in his steel-gray eyes, was changed into a wistful and painful expression that was very pathetic. i did not dare to invade his reserve with any tender of sympathy. joyless and hopeless as he might be, i felt instinctively that he would play out his drama alone. perhaps this was a mistake on my part: he may have been hungry for the word i did not speak. god knows. i was not lacking in proper interest in his well-being, but i have since thought in such cases it is safest to speak. "what has become of b--?" said my landlord one day as we met in the hall. "i have been here to see him several times, and found his door locked, and his letters and newspapers have not been touched. there is something the matter, i fear." instantly i felt somehow that there was a tragedy in the air, and i had a strange feeling of awe as i passed the door of b--'s room., a policeman was brought, the lock forced, and we went in. a sickening odor of chloroform filled the room. the sight that met our gaze made us shudder. across the bed was lying the form of a man partly dressed, his head thrown back, his eyes staring upward, his limbs hanging loosely over the bedside. "is he dead?" was asked in a whisper. "no," said the officer, with his finger on b--'s wrist; "he is not dead yet, but he will never wake out of this. he has been lying thus two or three days." a physician was sent for, and all possible efforts made to rouse him, but in vain. about sunset the pulse ceased to beat, and it was only a lump of lifeless clay that lay there so still and stark. this was his death--the mystery of his life went back beyond my knowledge of him, and will only be known at the judgment-day. one of the gayest and brightest of all the young people gathered at a may-day picnic, just across the bay from san francisco, was ada d--. the only daughter of a wealthy citizen, living in one of the lovely valleys beyond the coast-range of mountains, beautiful in person and sunny in temper, she was a favorite in all the circle of her associations. though a petted child of fortune, she was not spoiled, envy itself was changed into affection in the presence of a spirit so gentle, unassuming, and loving. she had recently been graduated from one of the best schools, and her graces of character matched the brilliance of her pecuniary fortune. a few days after the may-day festival, as i was sitting in my office, a little before sunset, there was a knock at the door, and before i could answer the messenger entered hastily, saying: "i want you to go with me at once to amador valley. ada d--is dying, and wishes to be baptized. we just have time for the six o'clock boat to take us across the bay, where the carriage and horses are waiting for us. the distance is thirty miles, and we must run a race against death." we started at once: no minister of jesus christ hesitates to obey a summons like that. we reached the boat while the last taps of the last bell were being given, and were soon at the landing on the opposite side of the bay. springing ashore, we entered the vehicle which was in readiness. grasping the reins, my companion touched up the spirited team, and we struck across the valley. my driver was an old californian, skilled in all horse craft and road-craft. he spoke no word, putting his soul and body into his work, determined, as he had said, to make the thirty miles by nine o'clock. there was no abatement of speed after we struck the hills: what was lost in going up was regained in going down. the mettle of those california-bred horses was wonderful; the quick beating of their hoofs upon the graveled road was as regular as the motion of machinery, steam-driven. it was an exciting ride, and there was a weirdness in the sound of the night-breeze floating by us, and ghostly, shapes seemed looking at us from above and below, as we wound our way through the hills, while the bright stars shone like funeral-tapers over a world of death. death! how vivid and awful was its reality to me as i looked up at those shining worlds on high, and then upon the earth wrapped in darkness below! death! his sable coursers are swift, and we may be too late! the driver shared my thoughts, and lashed the panting horses to yet greater speed. my pulses beat rapidly as i counted the moments. "here we are!" he exclaimed, as we dashed down the hill and brought up at the gate. "it is eight minutes to nine," he added, glancing at his watch by the light of a lamp shining through the window. "she is alive, but speechless, and going fast," said the father, in a broken voice, as i entered the house. he led me to the chamber of the dying girl; the seal of death was upon her. i bent above her, and a look of recognition came into her eyes. not a moment was to be lost. "if you know me, my child, and can enter the meaning of what i say, indicate the fact if you can." there was a faint smile and a slight but significant inclination of the fair head as it lay enveloped with its wealth of chestnut curls. with her hands folded on her breast, and her eyes turned upward, the dying girl lay in listening attitude, while in a few words i explained the meaning of the sacred rite and pointed her to the lamb of god as the one sacrifice for sin. the family stood round the bed in awed and tearful silence. as the crystal sacramental drops fell upon her brow a smile flashed quickly over the pale face, there was a slight movement of the head--and she was gone! the upward look continued, and the smile never left the fair, sweet face. we fell upon our knees, and the prayer that followed was not for her, but for the bleeding hearts around the couch where she lay smiling in death. dave douglass was one of that circle of tennesseans who took prominent parts in the early history of california. he belonged to the sumner county douglasses, of tennessee, and had the family warmth of heart, impulsiveness, and courage, that nothing could daunt. in all the political contests of the early days he took an active part, and was regarded as an unflinching and unselfish partisan by his own party, and as an openhearted and generous antagonist by the other. he was elected secretary of state, and served the people with fidelity and efficiency. he was a man of a powerful physical frame, deep-chested, ruddy-, faced, blue-eyed, with just enough shagginess of eyebrows and heaviness of the under-jaw to indicate the indomitable pluck which was so strong an element in his character. he was a true douglass, as brave and true as any of the name that ever wore the kilt or swung a claymore in the land of bruce. his was a famous methodist family in tennessee, and though he knew more of politics than piety, he was a good friend to the church, and had regular preaching in the schoolhouse near his farm on the calaveras river. all the itinerants that traveled that circuit knew "douglass's schoolhouse" as an appointment, and shared liberally in the hospitality and purse of the general--(that was his title). "never give up the fight!" he said to me, with flashing eye, the last time i met him in stockton, pressing my hand with a warm clasp. it was while i was engaged in the effort to build a church in that place, and i had been telling him of the difficulties i had met in the work. that word and handclasp helped me. he was taken sick soon after. the disease had taken too strong a grasp upon him to be broken. he fought bravely a losing battle for several days. sunday morning came, a bright, balmy day. it was in the early summer. the cloudless sky was deep-blue, the sunbeams sparkled on the bosom of the calaveras, the birds were singing in the trees, and the perfume of the flowers filled the air and floated in through the open window to where the strong man lay dying. he had been affected with the delirium of fever during most of his sickness, but that was past, and he was facing death with an unclouded mind. "i think i am dying," he said, half inquiringly. "yes--is there any thing we can do for you?" his eyes closed for a few moments, and his lips moved as if in mental prayer. opening his eyes, he said: "sing one of the old camp-meeting songs." a preacher present struck up the hymn, "show pity, lord, o lord forgive." the dying man, composed to rest, lay with folded hands and listened with shortening breath and a rapt face, and thus he died, the words and the melody that had touched his boyish heart among the far-off hills of tennessee being the last sounds that fell upon his dying ear. we may hope that on that old camp-meeting song was wafted the prayer and trust of a penitent soul receiving the kingdom of heaven as a little child. during my pastorate at santa rosa, one of my occasional hearers was john i--. he was deputy-sheriff of sonoma county, and was noted for his quiet and determined courage. he was a man of few words, but the most reckless desperado knew that he could not be trifled with. when there was an arrest to be made that involved special peril, this reticent, low-voiced man was usually intrusted with the undertaking. he was of the good old primitive baptist stock from caswell county, north carolina, and had a lingering fondness for the peculiar views of that people. he had a weakness for strong drink that gave him trouble at times, but nobody doubted his integrity any more than they doubted his courage. his wife was an earnest methodist, one of a family of sisters remarkable for their excellent sense and strong religious characters. meeting him one day, just before my return to san francisco, he said, with a warmth of manner not common with him: "i am sorry you are going to leave santa rosa. you understand me, and if anybody can do me any good, you are the man." there was a tremor in his voice as he spoke, and he held my hand in a lingering grasp. yes, i knew him. i had seen him at church on more than one occasion with compressed lips struggling to conceal the strong emotion he felt, sometimes hastily wiping away an unbidden tear. the preacher, when his own soul is aglow and his sympathies all awakened and drawn out toward his hearers, is almost clairvoyant at times in his perception of their inner thoughts. i understood this man, though no disclosure had been made to me in words. i read his eye, and marked the wishful and anxious look that came over his face when his conscience was touched and his heart moved. yes, i knew him, for my sympathy had made me responsive, and his words, spoken sadly, thrilled me, and rolled upon my spirit the burden of a soul. his health, which had been broken by hardships and careless living, began to decline more rapidly. i heard that he had expressed a desire to see me, and made no delay in going to see him. i found him in bed, and much wasted. "i am glad you have come. i have been wanting to see you," he said, taking my hand. "i have been thinking of my duty to god for a good while, and have felt more than anybody has suspected. i want to do what i can and ought to do. you have made this matter a study, and you ought to understand it. i want you to help me." we had many interviews, and i did what i could to guide a penitent sinner to the sinner's friend. he was indeed a penitent sinner--shut out from the world and shut in with god, the merciful father was speaking to his soul, and all its depths were stirred. the patient, praying wife had a wishful look in her eyes as i came out of his room, and i knew her thought. god was leading him, and he was receptive of the truth that saves. he had one difficulty. "i hate meanness, or any thing that looks like it. it does look mean for me to turn to religion now that i am sick, after being so neglectful and wicked when i was well." "that thought is natural to a manly soul, but there is a snare in it. you are thinking what others may say, and your pride is touched. you are dealing with god only. ask only what will please him. the time for a man to do his duty is when he sees it and feels the obligation. let the past go--you cannot undo it, but it may be forgiven. the present and an eternal future are yours, my friend. "do what will please god, and all will be right." the still waters were reached, and his soul lay at rest in the arms of god. o sweet, sweet rest! infinitely sweet to the spirit long tossed upon the stormy sea of sin and remorse. o peace of god, the inflow into a human heart of the very life of the lord! it is the hidden mystery of love divine whispered to the listening ear of faith. it had come to him by its own law when he was ready to receive it. the great change had come to him--it looked out from his eyes and beamed from his face. he was baptized at night. the family had gathered in the room. in the solemn hush of the occasion the whispers of the night-breeze could be heard among the vines and flowers outside, and the rippling of the sparkling waters of santa rosa creek was audible. the sick man's face was luminous with the light that was from within. the solemn rite was finished, a tender and holy awe filled the room; it was the house of god and the gate of heaven. the wife, who was sitting near a window, rose, and noiselessly stepped to the bed, and without a word printed a kiss on her husband's forehead, while the joy that flushed her features told that the prayer of thirty years had been answered, we sung a hymn and parted with tears of silent joy. in a little while he crossed the river where we may mingle our voices again by and by. there is not money enough in the california hills to buy the memory of that visit to santa rosa. none kaelbling, charles franks and the online distributed proofreading team the american judiciary by simeon e. baldwin, ll.d. contents part cases cited. i. the nature and scope of the judicial power in the united states. ii. the organization and practical working of american courts. _part i_ chapter i. english origin and early development of the american judiciary. ii. the separation of the judicial power from the legislative and executive in american constitutions. iii. the relations of the judiciary to the political departments of government. iv. the force of judicial precedents. v. the judicial power of developing unwritten law. vi. the judicial power of interpreting and developing written law. vii. the judicial power of declaring what has the form of law not to be law. _part ii_ viii. the organization of the courts of the states. ix. the organization of the courts of the united states. x. relations of the state judiciary to the united states, and of the united states judiciary to the states. xi. relations between the courts of different states. xii. trial by jury. xiii. formalities in judicial procedure. xiv. trial courts for civil causes. xv. probate courts. xvi. bankruptcy and insolvency courts. xvii. criminal procedure. xviii. the exercise of judicial functions out of court. xix. appellate courts. xx. the enforcement of judgments and punishment of contempts of court. xxi. judicial proceedings in territories subject to martial law. xxii. appointment, tenure of office and compensation of judges. xxiii. the character of the bar and its relations to the bench. xxiv. the law's delays. xxv. the attitude of the people towards the judiciary. index. * * * * * table of cases ableman _v._ booth allinson, hale _v._ american insurance co. _v._ canter ames _v._ kansas ames, smyth _v._ andrews, _ex parte_ anthes, commonwealth _v._ bachert _v._ lehigh coal and navigation co. baldwin, robertson _v._ bank, bardes _v._ bank of kentucky, briscoe _v._ bank of mississippi _v._ duncan bank of the u. s., osborn _v._ bardes _v._ bank barrows _v._ bell batchelder _v._ moore baxter _v._ brooks baxter, state _v._ bean _v._ beckwith bean, beckwith _v._ beckham, taylor _v._ beckwith _v._ bean beckwith, bean _v._ bell, barrows _v._ bell's gap r. r. co., mccloskey _v._ bernard, coggs _v._ biddle, green _v._ bidwell, downes _v._ bissell _v._ dickerson blacker, board of supervisors _v._ blair _v._ williams blake _v._ mcclung board of supervisors _v._ blacker bodley _v._ gaither boffman, hickman _v._ bonham's case booth _v._ clark booth, ableman _v._ borden, luther _v._ bowman _v._ middleton boyd _v._ thayer boyd _v._ u. s. bradburn, mincey _v._ bradley _v._ fisher bradley _v._ new haven bradley, _ex parte_ brainerd, fitch _v._ branch, _in re_ brashears, lapsley _v._ briggs _v._ garrett brine _v._ insurance co. briscoe _v._ bank of kentucky brooks _v._ state brooks, baxter _v._ brown, kellogg _v._ brown, parkersburg _v._ bulkley, state _v._ bull, calder _v._ burgess _v._ seligman burr's trial burrows, nudd _v._ bush, perry _v._ bushnell, _ex parte_ calder _v._ bull california, hurtado _v._ call publishing co., western union telegraph co. _v._ calvin _v._ huntley canfield _v._ mitchell canter, american insurance co. _v._ carriere, tua _v._ cherokee nation _v._ georgia, chisholm _v._ georgia christmas _v._ russell church _v._ pearne city of south bend _v._ turner claflin _v._ houseman clark, booth _v._ clarke's appeal cleveland, painesville and eastern r. r. co., _v._ pritschau clymer, norris _v._ cochran, gernon _v._ coffin _v._ united states coggs _v._ bernard cohens _v._ virginia coleman _v._ tennessee coler _v._ tacoma railway and power co. colt, stanley _v._ commonwealth _v._ anthes conn. pipe mfg. co., ward _v._ consul of spain _v._ consul of great britain cooper, application of cooper, _in re_ cooper, in the matter of copass, hall-moody institute _v._ croswell, people _v._ cunningham, state _v._ danbury, hoyt _v._ dartmouth college _v._ woodward debs, u. s. _v._ debs, _in re_ delaware, lackawanna and western r. r. co., forepaugh _v._ demorest, hutkoff, _v._ dennison, kentucky _v._ deposit bank _v._ frankfort dickerson, bissell _v._ diggs _v._ wolcott donoghue, hanley _v._ dorr _v._ united states dorrance, vanhorne's lessee, _v._ dougherty, lanark _v._ dow _v._ johnson downes _v._ bidwell dred scott _v._ sandford drehman _v._ stifle duncan, bank of mississippi _v._ duncan, johnson _v._ dyson _v._ rhode island co. eakin _v._ raub eckrich _v._ st. louis transit co. ellington, miel _v._ erdman _v._ mitchell exchange bank _v._ rice farmers' loan and trust co., pollock _v._ faulkner _v._ hart finney _v._ guy fish _v._ smith fisher, bradley _v._ fitch _v._ brainerd fletcher _v._ peck flynn _v._ morgan forepaugh _v._ delaware, lackawanna and western r. r. co. frankfort, deposit bank _v._ french _v._ waterbury frost _v._ leighton gaither, bodley _v._ garland, _ex parte_ garrett, briggs _v._ genesee chief, the georgia _v._ stanton georgia, cherokee nation _v._ georgia, chisholm _v._ georgia, worcester _v._ gernon _v._ cochran gibbons _v._ ogden goshen _v._ stonington gould _v._ hudson river r. r. co. grady's case grapeshot, the gray, james _v._ green _v._ biddle griffin _v._ wilcox griswold, hepburn _v._ griswold, united states _v._ grover & baker sewing machine co. _v._ radcliffe groves _v._ slaughter guy, finney _v._ hale _v._ allinson hall-moody institute _v._ co-pass ham _v._ mcclaws hanley _v._ donoghue hanover national bank _v._ moyses hans _v._ louisiana harris, norris _v._ hart, faulkner _v._ hawes _v._ oakland hayburn's case hepburn _v._ griswold heywood, wilcox _v._ hickman _v._ boffman hildreth's heirs _v._ mcintire's devisee hill _v._ smith hill, koehler _v._ hoffman, people _v._ holmes _v._ walton houseman, claflin _v._ houser, state _v._ howle, metropolitan life insurance co. _v._ hoyt _v._ danbury hudson river r. r. co., gould _v._ huntley, calvin _v._ hurtado, _v._ california hutkoff _v._ demorest insurance co., brine _v._ international distillery, pearson _v._ irvine _v._ stone james _v._ gray jecker _v._ montgomery johnson _v._ duncan johnson _v._ people johnson, dow _v._ johnson, mississippi _v._ johnson, state _v._ joint traffic association, united states _v._ judges, state _v._ kansas, ames _v._ katz _v._ walkinshaw kellogg _v._ brown kellogg _v._ warmoth kentucky _v._ dennison kentucky, louisville ferry co. _v._ kepner _v._ u. s. ketcham _v._ mcnamara kilbourn _v._ thompson klein, u. s. _v._ kneedler _v._ lane koehler _v._ hill lachenmeyer, pepin _v._ lanark _v._ dougherty la ninfa, the lane, kneedler _v._ lapsley _v._ brashears lee, state _v._ legal tender cases, the lehigh coal and navigation co., bachert _v._ leighton, frost _v._, lennon _v._ rawitzer, letson, louisville, cincinnati and charleston r. r. co. _v._, little charles, the schooner, u. s. _v._, loan association _v._ topeka, loomis _v._ newhali, lottawanna, the, louisiana, hans, _v._, louisville, cincinnati and charleston r. r. co. _v._ letson, louisville ferry co. _v._ kentucky, luke _v._ lyde, luther _v._ borden, lyde, luke _v._ mccardle, _ex parte_, mcclaws, ham _v._, mccloskey _v._ bell's gap r. r. co., mcclung, blake _v._, mcconnaughy, pennoyer _v._, mcculloch _v._ maryland, mcdaniel, terry _v._, mcdowell _v._ oyer, mcfarland _v._ people, mcintire's devisee, hildreth's heirs _v._, m'kim _v._ voorhies, mcleod's case, mcnamara, ketcham _v._, mcveigh _v._ ripley madison, marbury _v._, main, state _v._, marbury _v._ madison, maryland, mcculloch _v._, mather, rand _v._, merriman _v._ social mfg. co., merryman, _ex parte_, metropolitan life insurance co. _v._ howle, mial _v._ ellington, middleton, bowman _v._, milligan, _ex parte_, miln, new york _v._, mincey _v._ bradburn, mississippi _v._ johnson, mitchell, canfield _v._, mitchell, erdman _v._, montgomery, jecker _v._, moore, _ex parte_, moore, batchelder _v._, morgan, flynn _v._, mormon church _v._ united states, morrill, state _v._, moses taylor, the, moyses, hanover national bank _v._, mutual reserve fund life association, vincent _v._, myers _v._ south bethlehem nash, united states _v._, neagle, _in re_, neff, pennoyer _v._, newhall, loomis _v._, new haven, bradley _v._, new jersey _v._ new york, newman, _ex parte_, new york _v._ miln, new york, new jersey _v._, new york and new england r. r. co., rumsey _v._, new york, new haven and hartford r. r. co., stack _v._, noble _v._ union river logging co., norris _v._ clymer, norris _v._ harris, northern securities co. _v._ united states, norwalk street railway co.'s appeal nudd _v._ burrows oakland, hawes _v._ ogden _v._ saunders ogden, gibbons _v._ ohio and mississippi r. r. co. _v._ wheeler olcott, people _v._ osborn _v._ bank of the u. . oyer, mcdowell _v._ parkersburg _v._ brown patterson, william paul _v._ virginia pearne, church _v._ pearson _v._ international distillery pease, starr _v._ peck, fletcher _v._ pennoyer _v._ mcconnaughy pennoyer _v._ neff pennsylvania, prigg _v._ pennsylvania coal co., sanderson _v._ people _v._ croswell people _v._ hoffman people _v._ olcott people _v._ webb people, johnson _v._ people, mcfarland _v._ pepin _v._ lachenmeyer perkins, united states _v._ perry _v._ bush, peters, wheaton _v._ pollock _v._ farmers' loan and trust co. prigg _v._ pennsylvania pritschau, cleveland, painesville and eastern r. r. co. _v._ radcliffe, grover & baker sewing machine co. _v._ rand _v._ mather raub, eakin _v._ rawitzer, lennon _v._ reese, united states _v._ regents _v._ williams rhode island co., dyson _v._ rice, exchange bank _v._ rich, upshur county _v._ ripley, mcveigh _v._ robbins' case robertson _v._ baldwin robinson, _ex parte_ royall, _ex parte_ rumsey _v._ new york and new england r. r. co. russell, christmas _v._ rutgers _v._ waddington sanderson _v._ penn. coal co. sandford, dred scott _v._ saunders, ogden _v._ scott _v._ sandford seligman, burgess _v._ shepherd, state _v._ sheve, u. s. _v._ siebold, _ex parte_ sims' case slaughter, groves _v._ smith, fish _v._ smith, hill _v._ smith, u. s. _v._ smyth _v._ ames social mfg. co., merriman _v._ south bethlehem, myers _v._ sparf _v._ u. s. st. louis transit co., eckrich _v._ stack _v._ new york, new haven and hartford r. r. co. stanley _v._ colt stanley, u. s. _v._ stanton, georgia _v._ starr _v._ pease state _v._ baxter state _v._ bulkley state _v._ cunningham state _v._ houser state _v._ johnson state _v._ judges state _v._ lee state _v._ main state _v._ morrill state _v._ shepherd state _v._ travelers' insurance co. state _v._ ward state _v._ worden state, brooks _v._ stephens, petitioner stifle, drehman _v._ stone, irvine _v._ stonington, goshen _v._ swift _v._ tyson tacoma railway and power co., coler _v._ tassel's case taylor _v._ beckham tennessee, coleman _v._ terry _v._ mcdaniel thayer, boyd _v._ the genesee chief the grapeshot the la ninfa the lottawanna the moses taylor the schooner little charles, u. s. _v._ the thomas jefferson thomas jefferson, the thompson, kilbourn _v._ topeka, loan association _v._ trademark cases travelers' insurance co., state _v._ trevett _v._ weeden tua _v._ carriere turner, city of south bend _v._ tyson, swift _v._ union river logging co., noble, _v._ united states _v._ debs united states _v._ griswold united states _v._ joint traffic association united states _v._ klein united states _v._ nash united states _v._ perkins united states _v._ the schooner little charles united states _v._ reese united states _v._ robbins united states _v._ sheve united states _v._ smith united states _v._ sparf united states _v._ stanley united states _v._ wilson united states _v._ worrall united states, boyd _v._ united states, coffin _v._ united states, dorr _v._ united states, kepner _v._ united states, mormon church _v._ united states, northern securities co. _v._ upshur county _v._ rich vanhorne's lessee _v._ dorrance vincent _v._ mutual reserve fund life association virginia, cohens _v._ virginia, paul _v._ voorhies, m'kim _v._ waddington, rutgers _v._ walkinshaw, katz _v._ walton, holmes _v._ ward _v._ conn. pipe mfg. co., ward, state _v._, warmoth, kellogg _v._, waterbury, french _v._, webb, people _v._, weeden, trevett _v._, western union telegraph co. v. call publishing co., wheaton v. peters, wheeler, ohio and mississippi r. r. co., _v._, wheeler's appeal, wilcox v. heywood, wilcox, griffin _v._, williams, blair _v._, williams, regents _v._, wilson, u. s. _v._, wolcott, diggs _v._, woodward, dartmouth college, _v._, worcester v. georgia, worden, state _v._, worrall, u. s. _v._ additional cases cited in second edition. janvrin v. revere water co., revere water co., janvrin, _v._, o'brien's petition, seery v. waterbury, waterbury, seery _v._ * * * * * part i the nature and scope of the judicial power in the united states * * * * * chapter i english origin and early development of the american judiciary no government can live and flourish without having as part of its system of administration of civil affairs some permanent human force, invested with acknowledged and supreme authority, and always in a position to exercise it promptly and efficiently, in case of need, on any proper call. it must be permanent in its character. only what is permanent will have the confidence of the people. it must always be ready to act on the instant. the unexpected is continually happening, and it is emergencies that put governments to the test. the judiciary holds this position in the united states. the institutions which underlie and characterize it, both of the united states and of each of the states, considered by itself,[footnote: i do not except louisiana, for trial by jury and other institutions derived from the common law have profoundly affected her whole judicial system.] are the outgrowth of those of the thirteen english colonies on the atlantic coast, which declared their independence in . the colonial charters, whether of the proprietary, provincial or republican type, were all equally charters for englishmen, based on the common law of the english people. so far as they granted legislative power, it was generally declared that it should be exercised in conformity, so far as might be practicable, with the laws of england. the proviso to this effect in the roving patent given by queen elizabeth to sir walter raleigh may be taken as a type: "so always as the said statutes, lawes, and ordinances may be, as neere as conveniently may be, agreeable to the forme of the lawes, statutes, government, or pollicie of england."[footnote: poore, "charters and constitutions," ii, .] in the southern new england colonies, when first settled, the common law of england was disowned. they made the little law which they needed for themselves, and as cases which this might not provide for arose, they were to be decided by such rules as the magistrates might think right and warranted by the precepts found in the bible. connecticut continued to insist on this view, with general consistency, until the days of the stamp act, when it became the interest of her people to claim the benefit of the principles of the english constitution and of the common law, on which it was built up.[footnote: colonial records of conn., - , ; conn. stat., ed. of , . _cf._ citations by d. davenport, _arguendo,_ in flynn _v._ morgan, connecticut reports, - , from mss. in the state archives.] in early massachusetts the written pleadings often referred to the bible, quoting a text from it as an authority, just as citations now might be made in a lawyer's brief from a legal treatise or reported case.[footnote: publications of the colonial society of mass., iii, .] as was anticipated in the raleigh patent, it was found from the first and everywhere that if the common law was to be applied to the rough conditions of colonial life some modifications were necessary. these the colonists were, in the main, left free to make at their pleasure. much of this work came to be done by their legislative assemblies; more by their courts. the assemblies sat but for a few days in the year: the courts were always open to suitors, and sessions of the inferior ones were frequent. the assemblies, however, were themselves courts. at first they kept in their own hands a large share of judicial power. they acted as the early parliaments of england had acted, both as a legislature and a judicial tribunal. in several colonies they long kept to themselves the right of deciding private controversies on equitable principles. they sat as a court of review, to grant new trials or review judgments. they passed acts of attainder. they settled insolvent estates.[footnote: wheeler's appeal, connecticut reports, , .] this mingling of judicial with legislative functions is a thing to be tolerated only while the foundations of a government are being laid. as the roman plebeian, in the days before the twelve tables, clamored for a known and certain law, so the common people of the early colonies insisted that from a similar want they held their rights too much at the will of their rulers. in the colony of new haven a code was early framed; but there they built on a written law--the bible.[footnote: new haven colony records, i, , , ; ii, , .] in massachusetts, where they were more anxious to avoid conflict with the common law, the problem was a serious one. winthrop, writing in , describes it with his usual clearness and discrimination thus: "the people had long desired a body of laws, and thought their condition very unsafe while so much power rested in the discretion of magistrates.... two great reasons there were, which caused most of the magistrates and some of the elders not to be very forward in this matter. one was want of sufficient experience of the nature and disposition of the people, considered with the condition of the country and other circumstances, which made them conceive that such laws would be fittest for us which should arise _pro re nata_ upon occasions, etc., and so the laws of england and other states grew, and therefore the fundamental laws of england are called customs, consuetudines. . for that it would professedly transgress the limits of our charter, which provide we shall make no laws repugnant to the laws of england, and that we were assured we must do. but to raise up laws by practice and custom had been no transgression."[footnote: winthrop, "history of new england," i, .] the tendency toward partial codification proved too strong to be resisted, and all the colonies soon had a substantial body of written law published in official form. the exercise of judicial power by colonial legislatures was steadily contracting throughout the century preceding the revolution. where there were governors appointed by the crown, they discouraged it. the courts were correspondingly strengthened. law became better understood and more wisely applied. a large body of local statute law had grown up by , much of it already venerable by antiquity, and intimately interwoven with the life of the people. its form and color differed in different colonies. religious views and preferences had had a large effect in shaping it. so had influences proceeding from the civil war, the commonwealth, and the restoration. yet at bottom there was the same substructure in virginia as in massachusetts, in pennsylvania as in new york. it was the common law of england as it existed in the days of the last of the tudor and first of the stuart reigns. this had been built into the foundations of american institutions and kept firm in place, not only because the colonists were habituated to it[footnote: fitch _v._ brainerd, day's (conn.) reports, , .] and themselves both english subjects and the descendants of englishmen of those days, but largely by force of the british system of colonial government through the lords of trade and plantations. the ancient _aula regis_, in which the king dispensed justice at first hand, had survived in another form in the tribunal known as the king in council. this, so far as the colonies were concerned, was represented by a standing committee of the privy council. it was substantially the same thing as the court of star chamber, but since without the extraordinary penal jurisdiction which gave that so evil a reputation for americans.[footnote: maitland, "justice and police," .] this committee was after this restriction of its powers known as the lords of trade and plantations,[footnote: it was afterward and is now called the judicial committee of the privy council.] and by its authority from the time when england first had colonies of any commercial importance (and those in america were the first) their statutes could be set aside and the judgments of their courts, when of any considerable magnitude and importance, reversed.[footnote: see paper on appeals to the lords of trade from colonial courts, by harold d. hazeltine, report of the american historical association for , .] this revisory jurisdiction, though questioned and occasionally evaded or thwarted by the colonial governments, became solidly established long before the revolution.[footnote: "two centuries' growth of american law," , , .] in but one case did a colonial court formally ignore a judgment of reversal. this was in , when the superior court of judicature of massachusetts, at its sittings in york county, in what is now the state of maine, disobeyed an order of the king in council made on appeal from one of its judgments, and when it was repeated a year later, adhered to its original position.[footnote: frost _v._ leighton, publications of the colonial society of massachusetts, iii, .] the amount involved was trifling, and the lords of trade and plantations made no further effort to enforce their order. the natural effect of this court of appeal at london was to keep the public proceedings of the colonies in line with the common law of england, so far as related to its fundamental principles. a certain uniformity of result was thus secured. american law, in its substantial framework, was not allowed to vary from english law in any case where agreement was reasonably practicable. there was a central power at london ever ready to enforce the charter rule. the colonial courts, if their judgments were to stand, must proceed in conformity to the british constitution. justice must be administered by due course of law, and to find out what that due course was the judges were forced to study the english law-books. when blackstone's commentaries were first published, more copies were sold in america than in england.[footnote: "two centuries' growth of american law," .] the colonial bench was weaker than the colonial bar. judicial station was at first always, and later often, a mere incident of political office. when judges were appointed whose functions were wholly judicial, their selection was largely dictated by political considerations or executive favor. few of them were really learned in the law. of the bar many were. that of massachusetts did not conceal its disapprobation when lieutenant-governor hutchinson, although he had never been a member of it, was appointed chief justice in . none of the judges of the first superior court in that colony were lawyers.[footnote: winsor, "narrative and critical history of america," v, .] in some of the others the governor was the chancellor, and in maryland he was at one time the chief justice also.[footnote: steiner, "maryland's first courts," reports of american historical association for , ; osgood, "the american colonies in the seventeenth century," i, chap. ii; ii, chap. xii.] in several the judges were appointed during the king's pleasure, and the governor removed them at his discretion, without any notice or hearing.[footnote: bancroft, "history of the united states," ii, . a notable instance of a removal in consequence in part, at least, of a decision as to the royal prerogative, not relished by the governor, was the case of chief justice lewis morris of new york, in . documents relating to the colonial history of new york, v, ; vi, , , .] in those colonies which were provided by charter with a court of assistants, this body soon came to act as a judicial court. this took place in the colony of massachusetts bay as soon as the seat of the company's government was transferred from england to america, and took place as a matter of course. divisional courts were frequently held by part of the assistants, with original jurisdiction of minor causes, and all sat semi-annually, or oftener, to try larger ones and hear appeals.[footnote: noble, "records of the court of assistants of massachusetts bay," i, preface; publications of the colonial society of massachusetts, iii, .] in connecticut, appellate jurisdiction was originally retained by the general assembly, but when the docket became too crowded, resort was occasionally had to the appointment of a special and temporary commission of appeals to clear it off. as early as , one was constituted for this purpose to hold office for two years. no colony set up a permanent supreme court with full appellate jurisdiction. none probably cared to do this, and none probably thought that it could. the lords of trade and plantations would have rightly thought such a step hardly consistent with the maintenance of their revisory and controlling powers. it would have been too costly to allow two appeals; and for them to reverse a judgment of a colonial supreme court would have been more distasteful to americans than the exercise of a similar power as to a court professedly of superior, not supreme, jurisdiction. new york had a court named supreme, but its business was largely the trial of original causes, and the governor and council claimed the right of reviewing its judgments. the judges in denied the existence of such a right, but the king in council decided against them.[footnote: hunt, "life of edward livingston," .] as soon as regular judges, not members of other departments of the government, were appointed for the highest court, they were generally required to perform circuit duty in the various counties during part of each year.[footnote: see "am. hist. review," iii, .] this was a leading feature of the judicial establishment set up in under sir edmund andros for the "dominion of new england."[footnote: col. rec. of conn., iii, , .] south carolina, for a hundred years, centered all her judicial business at charleston. no courts sat anywhere else and all the lawyers in the state resided in the city. in the latter part of the eighteenth century she followed the other colonies in establishing a circuit system and county courts.[footnote: morse, "american universal geography," ed. , ; osgood, "the american colonies in the seventeenth century," ii, , .] there was occasionally some little approach to english form when the colonial judges went on the circuit. in massachusetts the sheriff or his deputy was accustomed to come out from the court town to meet the judges as they approached it, to open a term of court.[footnote: "life and works of john adams," ii, . see chap. xiii.] acts of parliament directly affecting procedure in american courts, and unifying its methods in some particulars, were occasionally passed during the colonial era. such was the act of (v, geo. ii, chap. vii), making affidavits taken in england admissible in any suit in an american colony to which an englishman might be a party, and providing that all american real estate (including negro slaves employed upon it) should be subject to be levied on for any debts of the owner, although real estate in england could only be taken for debts of a particular kind.[footnote: connecticut promptly passed a statute extending the new remedy thus given, so as to authorize the sale of land belonging to the estate of a deceased person, to pay his debts, if he did not leave sufficient personal estate for that purpose. col. rec. of conn., vii, .] other english statutes, passed after the settlement of the colonies, and not in terms applying to them, were often adopted here, either by the enactment of colonial statutes to the same effect or by incorporation into our common law by tacit consent, as interpreted by the courts.[footnote: state _v._ ward, connecticut reports, , .] the benefit of the writ of _habeas corpus_, which, though issuable at common law, really first took its present shape in , by the act of charles ii, chap. ii, was thought in this country, though not by the lords of trade and plantations, to be a privilege of americans, as british subjects. in some colonies this statute was re-enacted, or, as in virginia, rights under it conceded under the royal prerogative. in others, as in maryland, it was treated as being, by tacit adoption, the birthright of the inhabitants. in the "declaration and resolves" of the first continental congress, they assert "that the respective colonies are entitled to the common law of england," and in the address to the people of great britain they complain that the english settlers in canada "are now the subjects of an arbitrary government, deprived of trial by jury, and when imprisoned cannot claim the benefit of the _habeas corpus_ act, that great bulwark and palladium of english liberty."[footnote: journals of congress, i, , . a. h. carpenter, "habeas corpus in the colonies," american historical review, viii, .] the same sentiments dictated the terms of the ordinance of , under which our first territories were to be organized. one of its leading provisions was this: art. . the inhabitants of the said territory shall always be entitled to the benefits of the writ of _habeas corpus_, and of the trial by jury; of a proportionate representation of the people in the legislature, and of judicial proceedings according to the course of the common law. a recognized system of jurisprudence had, under the circumstances and from the causes which had been stated, begun to grow up before the revolution. it might fairly be called american, but it was thoroughly english by heredity, and had been shaped by a long succession of english influences, and steadied by the firm hand of english power. the revolutionary war made everything connected with the law of england distasteful to the people at large. the lawyers knew its value: the community did not. public sentiment favored an american law for america. it was quickened by the unfriendly feeling toward the mother country which became pronounced toward the close of the eighteenth century and culminated in the war of . several of the states, new jersey leading off, passed statutes forbidding the citation, in the argument of causes, of any decisions of the english courts made since the declaration of independence. under one of these henry clay, in , was stopped by the supreme court of kentucky when reading in argument from an opinion of lord ellenborough;[footnote: hickman _v._ boffman, hardin's rep., , .] but after a few years, legislation of this kind, while it might remain formally unrepealed, was treated as obsolete both by court and bar.[footnote: statutes of new jersey, ed. of , p. ( ); morehead and brown, "digest of the statutes of kentucky," i, ( ).] in courts held by unlearned judges, also, english law-books were lightly considered. one of this kind was chief justice livermore, of new hampshire. shortly after the close of the revolution, while presiding on the bench, he stopped a lawyer who was reading from one with the inquiry whether he thought that the members of the court did not "understand the principles of justice as well as the old wigged lawyers of the dark ages did."[footnote: "memoir of jeremiah mason mason," .] but whether cited or not from their original sources, the settled doctrines of english law were sure in the end to permeate both bar and bench in every state. the roman law and the law of nations were studied in preparation for admission to the american bar more generally and more thoroughly in the years immediately preceding and following the revolutionary era than they have been since.[footnote: see chap. xxiii.] the law student was also set then to reading more books on english law than he is now.[footnote: see report of the american bar association for , p. .] he learned his profession by the eye and not by the ear. his only lectures were the occasional arguments on a demurrer or writ of error which he might hear in the court room, and these were a reiteration of rules laid down in english law-books. the reason why he read more of roman law than is now required in legal education was mainly that there was more time for it, since of english law reports there were then few, and of american none. when the revolution broke out it also became important in helping to explain the practice in prize courts. these were set up (or existing common law courts invested with admiralty jurisdiction) in all the states, and american privateers gave them not a little business. in order to secure uniformity of decision in matters so directly affecting our foreign relations, the continental congress claimed the right to exercise appellate functions, through a standing committee of its members, and in organized a formal court for the purpose, styled "the court of appeals in cases of capture." three judges were appointed and provided with a register and seal. they held terms at hartford, new york, philadelphia and richmond during the next six years. on an average about ten cases were disposed of annually, and the decisions were generally conceded to have been fair and well supported by the rules of admiralty and the law of nations.[footnote: see jameson, "essays on the constitutional history of the united states," i; j. c. bancroft davis, "federal courts prior to the adoption of the constitution," united states reports, appendix, xix.] the influence of french ideas was strong in shaping constructive work in american politics, as the colonies passed into states; but aside from the separation of the judicial department from the executive and legislative it had little effect upon the courts until the opening of the nineteenth century. then the principles of the roman law, particularly as presented and illustrated by the french jurists, were seized upon by kent and story, and served greatly to expand and enrich our jurisprudence.[footnote: "memoirs and letters of james kent," .] the course of events which has been sketched left certain ideas in regard to the position and powers of the judiciary with respect to the other branches of the government firmly imbedded in the american mind. these may be thus summarized: judges were to proceed according to established rules, so far as established rules might exist. they were to proceed in analogy to established rules as to points which no established rule might cover. they were to look to the common law and political institutions of england to determine what rules were established, as to points not covered by local usage or legislation. local usage or legislation might, within certain limits, depart from the common law and even from the political institutions of england. there were limits to such departure, and a colonial statute or judgment which transgressed them could be annulled or set aside by a higher authority. this higher authority might be judicial or political, or one which shared both judicial and political functions. * * * * * chapter ii the separation of the judicial power from the legislative and executive in american constitutions from the colonial system of legislatures by which all the powers of government were at times exercised to the modern american state, with its professed division of them into three parts, and assignment of each to a distinct department, was a long step. so far as the united states were concerned, the weakness of the government under the articles of confederation had been universally acknowledged and was generally thought to come in part from throwing whatever powers the states had granted, in a mass, into the hands of the continental congress. nevertheless, the constitution of the united states is not framed upon the principles of a strict tripartite division. it places the executive power in the hands of the president, all the legislative powers which were granted by it in congress, and the judicial power in certain courts; but it does not follow the earlier state constitutions in declaring that whatever was vested in either of these three depositaries was and must always be different in kind from that vested in any other of them. on this point virginia set the fashion, but the sonorous phrase of the massachusetts constitution of is the most familiar, in its declaration (part the first, art. xxx) that "in the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws, and not of men."[footnote: the last declaration of purpose was taken from harrington's _oceana_, in which it is said that while a monarchy is an empire of men, "a commonwealth is an empire of laws and not of men." works, london ed., , , .] it was from an unwillingness to commit themselves to such a principle that the people of connecticut and rhode island preferred for many years to be governed in the old way by their legislatures, without a written constitution. during this period, the general assembly of connecticut repeatedly exercised the power of setting aside judgments of courts, and its right to do so was sustained by the supreme court of the united states.[footnote: calder _v._ bull, root's reports, ; dallas' reports, .] the courts of the united states were called upon at an early day to determine how far congress could invest them with functions that were not judicial or not to be performed in a judicial manner. an act was passed requiring the circuit courts to pass upon claims for invalid pensions, their decisions to be subject to review by congress. the performance of this duty was declined, and the attempt to put a judgment of a court under the control of the legislature made the refusal so plainly proper that the act was repealed at the next session.[footnote: hayburn's case, dallas' reports, .] it was easier for the united states to maintain from the first this general scheme for the division of power than for the early states. their people had grown up under too different a plan of government. it had become so familiar to them that they could hardly believe that it had been abolished. tradition for them interpreted their new constitutions and overmastered them. the state legislatures therefore continued for a time to claim some control over the judiciary, or at least a right to criticise and censure its doings.[footnote: see chap. vii.] in many of our state constitutions, after providing for a distribution of powers between three separate departments, instead of absolutely prohibiting any of them from exercising any power properly belonging to either of the others, it is declared that this shall not be done, except as may be expressly allowed in subsequent articles. such a declaration was proposed in the draft of the constitution of connecticut, reported to the convention which framed it in ; but on objection it was struck out.[footnote: journal of the constitutional convention of connecticut, pp. , .] it was thought better to leave the relations of the departments to each other to be worked out in practice, and for nearly eighty years afterward the legislature continued to exercise some judicial power. it sometimes gave equitable relief to carry out a charitable purpose in a will, which would otherwise fail. it interfered repeatedly in probate proceedings. it released sureties in judicial recognizances. it set aside judgments. [footnote: wheeler's appeal, connecticut reports, , ; stanley _v._ colt, wallace's reports, .] a decision of the supreme court of errors sanctioned the practice;[footnote: starr _v._ pease, conn. reports, , .] but in the court overruled its former opinion, and held that as the three departments were made separate and distinct, it needed no express constitutional declaration to prevent either from invading the province of the other, and so that no power not judicial in its nature could be conferred upon the courts.[footnote: norwalk street railway company's appeal, conn. reports, ; atlantic reporter, .] but may not a power be judicial in its nature and yet not wholly so? it is practically impossible to establish in every instance a plain line of demarcation between legislative, executive and judicial functions. courts, for instance, make rules of practice. in one sense this is a judicial act, because it is one appropriate for the judiciary. in another point of view it is an act of legislation. in nothing does it resemble the act of judging a litigated cause. impeachments are both political and judicial proceedings, but american constitutions leave them wholly to the legislative department. franchises to exist as an artificial person are the proper subjects of legislative grant, but with the growing insistence in our constitutions on absolute equality of right, they are now almost everywhere given only by general laws. such a law will offer incorporation for certain purposes to any who choose to avail themselves of the privilege by fulfilling certain conditions and filing certain papers in a public office. but what shall be the nature of this office, and who shall decide whether these conditions have been fulfilled and these papers filed? the legislature may select an executive, a legislative, or a judicial office. it may entrust this power of decision to an executive, a legislative, or a judicial officer. it has, in fact, in some states, entrusted it to a court, and authorized it, if it decided in favor of those claiming incorporation, not only to record the decision, but to issue the paper which shows that they are entitled to possess and enjoy the franchise. it is safe to assert that in no state are the functions of the courts purely judicial. many belonging to the administration of the methods of political government are in all intrusted to judicial officers either originally or by way of review. some of these concern such matters of internal police, as the enforcement of laws to preserve the public health or to regulate the sale of intoxicating liquors, and the establishment and repair of highways.[footnote: application of cooper, new york reports, , , ; norwalk street railway company's appeal, conn. reports, ; atlantic reporter, ; bradley _v._ new haven, connecticut reports, ; atlantic reporter, ; upshur county _v._ rich, u. s. reports, , ; janvrin _v._ revere water co., mass. rep. ; north eastern rep. .] instead of creating a system of bureaus and prefects, we have adhered to the english plan of administering local and county concerns through justices of the peace, courts of quarter-sessions, and county or parish courts.[footnote: see maitland, "justice and police," .] of the affairs committed to such authorities some pertain to the conduct of elections, and courts are frequently empowered to appoint election officers or clerks, because it is felt that thus a wise impartiality in selection can best be attained.[footnote: people _v._ hoffman, illinois reports, ; northeastern reporter, ; american reports, ; _ex parte_ siebold, u. s. reports, , .] it is vital to the proper working of government under a written constitution that these constitutional restrictions on the powers of the courts should not be too strictly interpreted. every step in the progress of civilization makes this the more obvious. no absolute trinity of governmental form can be maintained in human society, as the relations of each individual to his fellows, and of the state to all, become, and necessarily become, more numerous and complicated. in every state that department which in practice proves the strongest will push its jurisdiction furthest. it may be said, in view of its now established power to decide between higher and lower forms of law,[footnote: see chap. vii.] that the judiciary has proved the strongest. the legislature, as has been stated, have found it a convenient depositary of many quasi-legislative and quasi-executive functions, and this also has largely increased its power. the theory of the french philosophers that all the powers of government could be divided into three parts, each bearing a name descriptive only of itself, is not supported by the practical experience of americans. there are functions that might as well be assigned to one of these parts as to another, or made into a fourth and called administrative.[footnote: under authority of her present constitution, virginia in organized a state commission for the supervision of corporations, which has both judicial and administrative functions.] the constitution of the united states recognizes this in effect. it makes the senate an executive council, as well as a legislative chamber. it allows congress to vest the appointment of any inferior officers in the courts (art. ii, sec. ). in practice this power has been freely used. the supreme court of the united states has had occasion to consider this question in connection with the statutes defining the jurisdiction of the circuit courts. it extends to certain "suits." but what is a suit? it is not necessarily a proceeding at common law or in equity or admiralty. it may be a statutory process. "even," they say, "an appeal from an assessment, if referred to a court and jury, or merely to a court, to be proceeded in according to judicial methods, may become a suit within the act of congress."[footnote: upshur county _v._ rich, u. s. reports, , .] so in regard to a proceeding by the government to take land for public use on payment of due compensation, they observe that "the general rule with regard to cases of this sort is, that the initial proceeding of appraisement by commissioners is an administrative proceeding, and not a suit; but that if an appeal is taken to a court, and a litigation is there instituted between parties, then it becomes a suit within the meaning of this act of congress."[footnote: _ibid_., .] in one point of considerable importance express constitutional provisions generally narrow the jurisdiction of american, as compared with english courts. each house of the legislature is made the final judge of the returns and qualifications of its members. in england, election contests as to a seat in the house of commons has been made by act of parliament the subject of judicial determination. this avoids partizan decisions and is so far good. it diminishes, however, the independence of the legislative house in which the seat is contested. this is jealously guarded by our traditions as well as our constitutions. the practice of wearing hats during the sessions of the house of commons was an expression of the early feeling of the english commons on this subject. they would not uncover before speaker or king. in some of the early american legislatures the same thing was done. hats were occasionally worn in the house of representatives at washington as late as the second quarter of the nineteenth century.[footnote: hunt, "life of edward livingston," . they were worn in the continental congress on occasions of ceremony. mcmaster, "history of the people of the united states," i, .] on the other hand, american courts interfere more readily than the english to protect a citizen from arrest by legislative authority. each house of the british parliament has large inherited powers over those who may treat it with contempt. each house of an american legislature has some powers of this description, but they are far narrower ones.[footnote: kilbourn _v._ thompson, u. s. reports, .] * * * * * chapter iii the relations of the judiciary to the political departments of government courts of claims are the only permanent special courts for the disposition of causes arising from the acts of public officials.[footnote: one exists for the united states; and one for new york.] the system of administrative law prevailing on the continent of europe, by which all such matters are withheld from the ordinary tribunals, is totally unknown here. if the secretary of war of the united states should do some act to a private citizen, which may be justified by his official powers, but otherwise would not be, he may be summoned to answer for it before any civil court having jurisdiction of the parties. so may even the president of the united states be sued after the expiration of his term. the president, while president, however, cannot be compelled to obey a summons to appear in court. the country cannot spare him to go here and there in obedience to a writ. chief justice marshall issued one against president jefferson, directing him to appear at the trial of aaron burr and bring with him a certain paper. jefferson declined to obey, and there was no attempt to enforce the subpoena. had there been, it would have been found that he had taken measures for his protection.[footnote: thayer, "john marshall," .] marshall's action was based on an admission by the counsel for the government that a summons to testify could lawfully issue, though they denied that it could be accompanied by a direction to produce documents. this admission is now generally thought by the legal profession to have been ill-advised. if the president could be summoned at all, he could be compelled to obey the summons, and nothing could be more unseemly or inadmissible than an attempt of that nature by the judiciary against the executive power of the united states. but while there is nothing like an administrative court for the disposition of causes against individuals in the united states, considered as a collection of states or of people within those states, more freedom has been used by congress in providing for the territories. this has been conspicuously the case in regard to the philippines. by the act of congress of july , , they were left under the supervision of the war department, in which there was constituted a "bureau of insular affairs," the business assigned to which "shall embrace all matters pertaining to civil government in the island possessions of the united states subject to the jurisdiction of the war department; and the secretary of war is hereby authorized to detail an officer of the army whom he may consider especially well qualified to act under the authority of the secretary of war as the chief of said bureau." the officer filling the position of chief published in this account of the practical working of the provisions made for the disposition of matters of legal controversy occurring on the islands: "the establishment of a judicial system in the philippines affords a means for the adjudication of litigated questions between the inhabitants and of many questions respecting the jurisdiction and authority of officials of that government. whenever possible, controversies are referred to those tribunals. in some instances questions have arisen affecting the action or authority of officers of the executive department of that government in matters controlled by the discretion of the administrative branch and affecting the administration of civil affairs. these questions are considered and determined by the war department, upon investigation and report by the law officer."[footnote: _national geographic magazine_ for june, , p. .] under our american constitutional system, the only courts of an administrative or political nature for calling public officers directly to account for a breach of public duty are our courts of impeachment. these act only occasionally, and when specially convened for the purpose of hearing charges against a particular individual. they do not grant relief to any party injured by the wrongful acts which are the subject of the accusation. they sit only to punish the public wrong. in constituting courts of impeachment, the control of the cause is generally given to officers of the legislative department, but judicial officers are often joined with them. such a tribunal was long maintained in new york, of which the senators formed the majority, but in which the chancellor and judges of the supreme court also sat. the first constitution of south carolina, adopted in , contained a similar provision (art. xxiii). in most states the senate alone constitutes the court for trying impeachments, but should the governor be thus brought before them, the chief justice is added to it, and presides. a similar provision is contained in the constitution of the united states as respects the president. the main reason for putting such a proceeding under judicial direction is to avoid giving the second in rank of the executive magistracy, whose function it generally is to preside over the senate, a position of authority over his chief, in a proceeding which, if successful, would put him in his place. it also, of course, tends to promote a trial in accordance with all the rules of law. the court in such a proceeding cannot be regarded as fully organized until the chief justice is present. it is then first competent to prescribe the rules to govern it during the progress of the cause. this was the ruling of chief justice chase on the impeachment of president johnson, which was tacitly acquiesced in by the senate. new york originally not only gave her legislature a share in judicial power, but her judges a share in that of legislation. her constitution of provided for a council of revision, consisting of the governor, the chancellor, and the judges of the supreme court, to whom all bills which passed the senate and assembly should be presented for consideration; and that if a majority of them should deem it improper that any such bill should become a law they should within ten days return it with their objections to the house in which it originated, which should enter the objections at large in its minutes, and proceed to reconsider the bill; and that it should not become a law unless re-passed by a vote of two-thirds of the members of each house. for forty years this remained the law, and the council of revision contained from time to time judges of great ability, chancellor kent being one. during this period , bills in all were passed. one hundred and twenty-eight of them were returned by the council with their objections, and only seventeen of these received the two-thirds vote necessary to re-enact them.[footnote: poore, "charters and constitutions," ii, , , note.] an obvious objection to this method of legislation is that the judges who, as members of a council of revision, find nothing objectionable in a bill presented for their scrutiny, must naturally have a certain pride of opinion to conquer before, should its constitutionality become afterward the subject of litigation before them, they could be in a frame of mind to render an unprejudiced judgment. one of the bills which came under the eye of chancellor kent as a member of the council was afterward the source of controversy before him in court. he adhered to his original views, but was overruled by the supreme court of the united states. chief justice marshall gave the opinion, and half apologetically alluded to this circumstance in these words: the state of new york maintains the constitutionality of these laws; and their legislature, their council of revision, and their judges, have repeatedly concurred in this opinion. it is supported by great names--by names which have all the titles to consideration that virtue, intelligence, and office can bestow. no tribunal can approach the decision of this question without feeling a just and real respect for that opinion which is sustained by such authority; but it is the province of this court, while it respects, not to bow to it implicitly; and the judges must exercise, in the examination of the subject, that understanding which providence has bestowed upon them, with that independence which the people of the united states expect from this department of the government.[footnote: gibbons _v._ ogden, wheaton's reports, .] a device for obtaining the same end--the views of the judges in advance of the enactment of a law--in a different way, has been from the first quite common. this is for the legislature to ask them specially for their opinion as to the constitutionality of a bill before it is put upon its passage. an analogous practice has always obtained in england, and was followed in several of the colonies. some of our state constitutions expressly authorize such proceedings. in the absence of such authority, the judges can properly decline to comply with the request. it always asks them to prejudge a question which may later come before them in court, and to prejudge it without hearing any of the parties whom it may affect injuriously.[footnote: see the reply of the judges of the supreme court of the general assembly, conn. reports, .] president washington, in , brought a matter of this kind before the justices of the supreme court of the united states. it was during the controversy with m. genet, the french minister, as to his right to refit a captured english merchantman as a privateer at an american port, and then send her out for a cruise. by the advice of his cabinet, the president asked the justices a series of questions comprehending all the subjects of difference as to the proper exposition of the provisions of our treaties with france under which her minister made claim. they replied that they deemed it improper to enter the field of politics by declaring their opinions on questions not growing out of some case actually before them.[footnote: marshall, "life of washington," v, , .] no further request of this kind has since been made by any of the political departments to a court of the united states, except such as have been addressed to the court of claims. idaho, in her constitution (art. v, sec. ), has sought to give the legislature the benefit of judicial advice at the opening of each session as to what laws it might be desirable to enact. the judges of her trial courts are annually to report to those of her supreme court such defects and omissions in the laws as their knowledge and experience may suggest, and the latter, after considering these suggestions, are then, within the next five months, to report to the governor such defects and omissions, both in the constitution and in the laws, as they may find to exist. the duty of the judiciary, in the course of lawsuits, to compare a statute, the validity of which is called in question, with the constitution, and by the decision indirectly to affect legislation, is treated of elsewhere.[footnote: chap. vii.] the courts of the united states, in controversies involving matters affecting the foreign relations of the general government, acknowledge in a certain degree a dependence upon the executive department. if they have a treaty to construe, any construction of it as to the point in question already given by the state department will be followed, unless plainly wrong. if it becomes material to determine whether a certain country is subject to a certain power, and the president of the united states has dealt with that question (as by recognizing or refusing to recognize a minister accredited to the united states), his action will be accepted as conclusive. his proceedings would have like weight if taken within the limits of his authority with respect to the government of one of the united states.[footnote: luther _v._ borden, howard's reports, .] when questions of this nature arise in a lawsuit between private parties, the courts can, without notice to them, seek information by communicating directly with the department of state. it will be given by a letter or certificate, and this will be received as a conclusive mode of proof or as aiding the court in taking judicial notice of historical facts. so an official letter or certificate from the minister or consul of a foreign power can be received and used as evidence as to facts in controversy peculiarly within the knowledge of that government.[footnote: gernon _v._ cochran, bee's reports, .] in prize cases, which must all be brought before the district court, an appeal is allowed directly to the supreme court of the united states, although the judgments of the district court generally are reviewable only in an intermediate court. this secures a prompt decision by the highest judicial authority of a question which necessarily affects, in some degree, the foreign relations of the united states. but there may be cases affecting a vessel claimed as a prize which are not brought to secure her forfeiture and so are not prize cases. they may even to a greater extent affect our relations to foreign governments. how far can the courts, in dealing with these, govern their action by that of the executive? this question came up for decision shortly after the adoption of the constitution. great britain and spain were at war. a british man-of-war brought a spanish felucca into charleston, claiming her as a prize, and she was advertised for sale. no proceedings to have her adjudicated a lawful prize had been taken before any court. the spanish consul applied to the circuit court for an injunction against the sale, claiming that for the united states to permit it would be a breach of neutrality and contrary to the law of nations. the british consul resisted the application on the ground that a sale could not be forbidden in the absence of any act of congress on the subject, except by the president. the chief justice, who sat in the case, gave the opinion, which was that there could be no lawful sale without the permission of the united states; that it was a matter proper to be dealt with by the president; that the court would not say how he should deal with it; but that an injunction might issue to stop the sale until further order, unless permission should be sooner obtained from the president.[footnote: consul of spain _v._ consul of great britain, bee's reports, .] here, therefore, an act which might have been a _casus belli_ was stayed by a court until and unless the executive should intervene and permit it. the extradition of criminals under a treaty on the demand of a foreign government presents a debatable ground in respect to the subject now under consideration. the surrender is an executive proceeding and a political act. but the laws may provide for a preliminary inquiry before a court into the propriety of complying with the demand. they certainly provide for a judicial proceeding by writ of _habeas corpus_ to release any one arrested in such a proceeding if held without due cause. is the court before which either of these proceedings may be had at liberty to receive advice or submit to instructions from the president of the united states? this question stirred the country to its depths in . great britain applied to our government for the extradition of a seaman who claimed to be an american citizen and was charged with committing murder on a british man-of-war. he was arrested in south carolina, under a warrant from the district judge, and lodged in jail. there was a treaty of extradition between the two powers covering cases of murder, but no particular machinery had been provided for regulating the surrender. the british consul asked the judge who had made the commitment to order his delivery to him. the judge doubted his power to do so. thereupon the secretary of state, by authority of the president, wrote him that the president advised and requested him to make the surrender, if satisfied with the proofs of criminality, as he (the president) was of opinion that any crime committed on a man-of-war was committed within the territory of the power to which it belonged. the judge complied with this request, after a public hearing on a writ of _habeas corpus_, under which he ordered the man in question to be brought before him, and in the course of it this letter was shown to counsel on both sides. the surrender became at once the subject of heated debates in congress, but the president's course was ably and conclusively defended by marshall on the floor of the house,[footnote: united states _v._ nash _alias_ robins, bee's reports, ; robbins' case, wharton's state trials, .] and the course pursued has since been followed in substance by our extradition statutes.[footnote: united states revised statutes, secs. , .] these provide for a hearing of a judicial character, and then, if that results in a determination that a surrender should be made, it may be ordered on a warrant from the state department. on the other hand, the peculiar provision of the constitution of the united states which makes treaties the supreme law of the land calls upon the courts to enforce them according to whatever interpretation they may conclude to give them, even if it should differ from that adopted by the president or the state department. if a treaty prescribes a rule by which the rights of private individuals are to be determined, and those rights are such as can be appropriately made the subject of a lawsuit, the court before which it may be brought has as full authority to construe the treaty as it would have to construe an act of congress, were the matter in controversy one of a statutory nature. they cannot be appropriately made the subject of a lawsuit so long as the questions involved are under active consideration in the course of diplomatic negotiation and pending for decision before the president. let him, however, once make his decision and the doors of the court fly open. these principles are well illustrated by some incidents of our controversy with great britain over the seal fisheries in behring sea. there was a serious dispute between the two governments as to the limits of our jurisdiction over the waters adjacent to alaska. we maintained that it ran to the middle of behring's straits and from the meridian of ° to that of ° west longitude. great britain contended for the three-mile limit. pending diplomatic negotiations as to this point, one of our revenue cruisers seized a canadian vessel which was engaged in seal fishing nearly sixty miles from the alaskan coast, and she was condemned, on a libel by the united states, by an admiralty court in alaska. the owner in applied to the supreme court of the united states for a writ to prohibit the enforcement of this decree of confiscation. the attorney-general of canada filed in this suit papers in aid of the application, stating that he did so with the knowledge and approval of the imperial government, and that he would be represented by counsel employed by the british minister resident. the writ was refused on technical grounds, but the court, through chief justice fuller, made these observations as to the merits of the cause: in this case, her britannic majesty's attorney-general of canada has presented, with the knowledge and approval of the imperial government of great britain, a suggestion on behalf of the claimant. he represents no property interest in the vessel, as is sometimes done by consuls, but only a public political interest. we are not insensible to the courtesy implied in the willingness thus manifested that this court should proceed to a decision on the main question argued for the petitioner; nor do we permit ourselves to doubt that under such circumstances the decision would receive all the consideration that the utmost good faith would require; but it is very clear that, presented as a political question merely, it would not fall within our province to determine it.... we are not to be understood, however, as underrating the weight of the argument that in a case involving private rights, the court may be obliged, if those rights are dependent upon the construction of acts of congress or of a treaty, and the case turns upon a question, public in its nature, which has not been determined by the political departments in the form of a law specifically settling it, or authorizing the executive to do so, to render judgment, "since we have no more right to decline the jurisdiction which is given than to usurp that which is not given."[footnote: _in re_ cooper, united states reports, , .] in the following year a convention was concluded between the united states and great britain for the submission of the question of our jurisdiction over behring's sea to arbitration. the arbitration took place and the award supported the british contention. congress passed an act to give it full effect. the convention provided in terms that "the high contracting parties engage to consider the result of the proceedings of the tribunal of arbitration as a full, perfect and final settlement of all the questions referred to by the arbitrators." in july, , before the award was made, an american vessel engaged in the seal fishery outside the three-mile limit was seized by one of our revenue cutters. a libel was filed by the united states in the admiralty court for alaska and she was condemned. her owners appealed to the circuit court of appeals, on the ground that the seizure was made outside of the jurisdiction of the united states. if so, they were entitled to her release. the court held that the limits of this jurisdiction were conclusively settled by the award, and thus adverted to the claim that they should treat the case as the supreme court of the united states had dealt with that which followed the seizure of the year before: this question has been settled by the award of the arbitrators, and this settlement must be accepted "as final." it follows therefrom that the words "in the waters thereof," as used in section , and the words "dominion of the united states in the waters of behring sea," in the amendment thereto, must be construed to mean the waters within three miles from the shores of alaska. in coming to this conclusion, this court does not decide the question adversely to the political department of the government. it is undoubtedly true, as has been decided by the supreme court, that, in pending controversies, doubtful questions which are undecided must be met by the political department of the government. "they are beyond the sphere of judicial cognizance," and "if a wrong has been done, the power of redress is with congress, not with the judiciary." the cherokee tobacco, wall., - . but in the present case there is no pending question left undetermined for the political department to decide. it has been settled. the award is to be construed as a treaty which has become final. a treaty when accepted and agreed to becomes the supreme law of the land. ... the duty of courts is to construe and give effect to the latest expression of the sovereign will; hence it follows that, whatever may have been the contention of the government at the time _in re_ cooper was decided, it has receded therefrom since the award was rendered, by an agreement to accept the same "as a full, complete, and final settlement of all questions referred to by the arbitrators," and from the further fact that the government since the rendition of the award has passed "an act to give effect to the award rendered by the tribunal of arbitration."[footnote: the la ninfa, federal reporter, , .] the degree of confiscation was therefore reviewed. it will be noticed that this result was reached in a suit by the united states in one of their own courts, in which the claim of the government was one of territorial boundary, and yet that the court overruled the claim and threw out the suit on the strength of an award made in pursuance of the law of the land. the treaty was the law. this law provided for the award and made it, whichever view should be adopted, final. it was therefore for the court to accept it as final, even against the resistance of the political department of the government, and do justice accordingly. the courts before the revolution, and in some states for half a century after it, served as a kind of political mouthpiece. the institution of the grand jury[footnote: see chap. xvii.] afforded the means. those composing it are personally selected by the sheriff from the principal men in the county. it is the duty of the court to instruct them at the opening of the term which they are summoned to attend as to the law and practice governing the exercise of their functions. frequently this charge was prefaced by an harangue from the judge on the social, moral, religious or political questions of the day.[footnote: "life and works of john adams," ii, .] to this the grand jury were not backward in responding with compliments and perhaps presentments. in massachusetts they went even further in . the house of representatives of the provincial assembly impeached the chief justice for accepting a salary from the crown instead of relying on legislative grants, as had been the practice. the council before which the articles were exhibited declined to entertain them. the people, however, felt that the house was right, and this sentiment was manifested at the next sessions of the courts by the grand and petit juries in every county. they refused to take the oaths and stated that they could not take part in proceedings presided over by a judge who was under impeachment. no business was done in court until the following year, when, after the battle of lexington, new judges were appointed by the council.[footnote: "life and works of john adams," ii, ; x, ; "principles and acts of the revolution," .] sometimes the laws of the state were criticised in this way by judge and jury. in december, , a grand jury in south carolina made this presentment: we present as a grievance of the greatest magnitude the many late interferences of the legislature of the state in private contracts between debtor and creditor. we should be wanting in our duty to our country and regardless of the obligation of our solemn oath and the high trust at this time devolving upon us by operation of the laws of the land, did we omit this occasion between the expiration of one legislature and the meeting of a new representative body, to express our utter abhorrence of such interferences.[footnote: "american museum," vii, appendix ii, . _cf. ibid._, .] in a similar way unpopular treaties[footnote: mcmaster, "history of the people of the united states," ii, .] or acts of congress were formerly attacked. in , the action of the house of representatives as to the introduction of slavery in missouri was the subject of a warm protest from a grand jury in that territory, which closed thus: they hope those restrictions will never more be attempted; and, if they should, they hope by the assistance of the genius of ' and the interposition of divine providence to find means to protect their rights.[footnote: niles' register, xvii, .] the protective tariffs of the united states were frequently presented as grievances in the south during the years preceding the nullification movement in south carolina.[footnote: u. b. phillips, "georgia and state rights," report of the american historical association for , ii, .] in , a grand jury in pennsylvania presented as a grievance the suspension of commodore porter from duty for six months under sentence of a naval court martial, approved by the secretary of the navy.[footnote: niles' register, xxix, .] in , a grand jury in tennessee presented a "protest against the bold and daring usurpations of power by the present executive of the united states" (john quincy adams), and stated that "being decidedly opposed to the present administration, we have for ourselves resolved to oppose all those we have just reason to suspect to be friendly thereto, and recommend the same course to all our fellow-citizens of blount county."[footnote: niles' register, xxxii, .] in , the chief justice of south carolina began his charge to a grand jury with a long statement of the justice of the revolution, its military successes, and the duties of patriotism. the court thereupon ordered "that the political part of the chief justice's charge" be forthwith printed.[footnote: principles and acts of the revolution, .] in , judge grimke of the same state took advantage of a similar occasion to comment with severity on those who had opposed the ratification of the constitution of the united states. jealousy had done much to poison their minds, he said, "for it is observable that throughout the whole of the united states a majority of the leaders of the opposition to our newly adopted government are not natives of our soil; hence this pernicious quality of the mind displays itself more widely in america."[footnote: "american museum," viii, appendix ii, .] in , when elbridge gerry was the republican candidate for governor of massachusetts, a federalist newspaper reported approvingly a charge of chief justice dana of that state. he had been an ardent politician before going on the bench and had declined a nomination as minister to france during the preceding year. "the learned judge," said the boston _centinel_, "in a forcible manner proved the existence of a french faction in the bosom of our country and exposed the french system among us from the quintumvirate of paris to the vice-president and minority of congress as apostles of atheism and anarchy, bloodshed and plunder."[footnote: centinel of nov. , , quoted in austin, "memoirs of elbridge gerry," ii, , note.] in , justice chase of the supreme court of the united states made several charges in maryland hardly less objectionable, one of which was afterward unsuccessfully set up by the house of representatives as a ground of his impeachment. the article stating it described the charge as "an intemperate and inflammatory political harangue with intent to excite the fears and resentment of the said grand jury and of the good people of maryland against their state government and constitution." he had, indeed, used this language: you know, gentlemen, that our state and national institutions were framed to secure to every member of the society, equal liberty and equal rights; but the late alteration of the federal judiciary by the abolition of the office of the sixteen circuit judges, and the recent change in our state constitution, by the establishment of universal suffrage, and the further alteration that is contemplated in our state judiciary (if adopted) will, in my judgment, take away all security for property and personal liberty. the independence of the national judiciary is already shaken to its foundation, and the virtue of the people alone can restore it. the independence of the judges of this state will be entirely destroyed if the bill for the abolition of the two supreme courts should be ratified by the next general assembly. the change of the state constitution, by allowing universal suffrage, will, in my opinion, certainly and rapidly destroy all protection to property, and all security to personal liberty; and our republican constitution will sink into a mobocracy, the worst of all possible governments. i can only lament that the main pillar of our state constitution has already been thrown down by the establishment of universal suffrage. by this shock alone the whole building totters to its base and will crumble into ruins before many years elapse, unless it be restored to its original state. all this was less indefensible under the judicial practice of a century ago than it would be now, and there were not enough votes of guilty on the article of impeachment founded upon it to secure a conviction. in the same year, judge alexander addison of the circuit court of pennsylvania was charging a pennsylvania grand jury that the jeffersonians had assumed a name that did not belong to them. "such men," he said, "disgrace the name of republicans by exclusively assuming it. in their sheep's clothing they are ravening wolves."[footnote: wharton's state trials, , note.] for this, among other things, he was very properly impeached and removed in , after the republicans came into power in that state.[footnote: mcmaster, "history of the people of the united states," iii, .] it is difficult for the american of the twentieth century to conceive how honorable men could so have abused official position.[footnote: wharton's state trials, . justice washington made it a rule not to enter into any political questions in his charges unless necessary for the guidance of the grand jury in the work before them, and until , when party feeling had moderated, not to give out copies of any charges for publication. niles' register, xiii, .] the cause lies in the extreme rancor which then embittered politics and debased society. federalists and republicans were hardly on speaking terms. many who were actively engaged in politics felt compelled to carry a sword cane for defence if attacked. judge addison's charge brought out an open letter to him in a pittsburgh newspaper, signed by a republican who was on the supreme bench of the state, expressing his astonishment that the people who heard him "were not fired with sudden indignation and did not drag you from your seat and tread you under foot."[footnote: wharton's state trials, , note.] on the other hand, at a political banquet of the boston federalists, at about the same time, their approval of judge dana's charges to grand juries was manifested by this toast: "the honorable francis dana, chief justice of the learned associate judges of our supreme judicial court. while the political opinions delivered from the bench are dictated by intelligence, integrity and patriotism, may they be as highly respected as have ever been its judicial decisions."[footnote: austin, "life of elbridge gerry," ii, , note.] the judiciary may, and often do, command and compel inferior executive officers to do specific official acts which it is their plain duty to perform, or issue an injunction to prevent their doing an official act which is plainly beyond their powers. heads of departments of the state or the united states are subject to this power.[footnote: noble _v._ union river logging co., u. s. reports, ; smyth _v._ ames, u. s. reports, .] so in the federal courts are governors of states acting under a law repugnant to the constitution of the united states.[footnote: pennoyer _v._ mcconnaughy, u. s. reports, .] no such writ will be issued, however, when the case is of a political nature and involves the exercise of any official discretion,[footnote: georgia _v._ stanton, wallace's reports, .] nor under any circumstances against the president of the united states.[footnote: mississippi _v._ johnson, wallace's reports, .] as to whether it can in some cases be granted by a state court against the governor there is a conflict of authority. the development of party government in the united states has led of recent years to much legislation for the regulation of party conventions and party organization in the interest of fair dealing and public order. statutes of this nature relating to the form and heading of ballots for use at popular elections are common. if conflicting factions contend for the right of issuing ballots in the name of the same party, the courts may be called upon to decide between them on an application for an injunction or writ of mandamus. the legislature, however, may provide that some standing agency or committee of a party shall decide finally upon any such conflicting claims, and in such case their decision will be conclusive upon the courts.[footnote: state _v._ houser, wisconsin reports; northwestern reporter, .] when title to a political office is contested, the courts, unless there is some constitutional provision to the contrary, may be appealed to for a decision. this is true even in respect to the office of governor.[footnote: boyd _v._ thayer, u. s. reports, ; taylor _v._ beckham, u. s. reports, ; state _v._ bulkeley, connecticut reports, .] it is a remedy which has been, though in rare instances, abused for party purposes.[footnote: such a case was the issue by a district judge of the united states in of an injunction-order under which the marshal took possession of the louisiana state-house, and excluded those claiming to be the legislature of the state. gibson, "a political crime," _et seq._; senate report, , forty-second congress, third session.] the right of the governors, which exists under the constitutions of several states, to ask the judges of the supreme court for their opinion on any question of law, may throw upon them the delicate task of deciding in a collateral proceeding who is governor, if the title to the office is claimed by two. this was the case in florida in . the house of representatives had commenced proceedings of impeachment against the governor. it was on the first day of a special session of the assembly. there could be no such session unless a quorum was present in each house. there were but twelve senators in attendance. the lieutenant-governor regarded the proceedings as regular, and assumed to exercise the office of governor pending the trial. the governor claimed that twelve senators were not a quorum, and that the proceedings were void. on these points he requested the opinion of the justices of the supreme court, and they gave one supporting his contentions.[footnote: florida reports, .] a few weeks later a regular session was held, at which a quorum was present in each house, and the proceedings of the special session were treated as void.[footnote: s. s. cox, "three decades of federal legislation," , .] in the early days of the united states, under the present constitution, the chief justices of the supreme court of the united states at times filled also a political office, and so were invested at the same time with political and judicial functions. john jay, the first chief justice, while holding that office, was made our envoy extraordinary to great britain, and spent a year abroad in that capacity. his acceptance of the position, however, occasioned general and unfavorable comment. john marshall was both chief justice and secretary of state for five weeks, during which he held one term of the supreme court. oliver ellsworth was both chief justice and minister to france at the same time, and for a period of over a year, during which he held one term of court. nothing of this kind has since occurred, nor would it now be thought consistent with the proprieties of judicial office. when the result of the election of the president and vice-president of the united states was contested in , congress, as a temporary makeshift, bridged over the difficulty by creating a commission of fifteen, five from each house and five from the supreme court, to decide upon the returns. four of the justices were especially selected by the act passed for this purpose, two of them being republicans and two democrats, and they were directed to choose the fifth.[footnote: united states statutes at large, .] they agreed on justice bradley, a republican. the congressional members were equally divided politically. the result proved to be that on every important question in controversy every republican voted for the view favorable to the republican candidates and every democrat voted for the other. the country could not fail to see that judges, as well as other public men, may be insensibly influenced by their political affiliations, and regarded the whole matter as a new proof of the wisdom of separating the judiciary from any unjudicial participation in the decision of political issues.[footnote: see wilson, "division and reunion," ; s. s. cox, "three decades of federal legislation," ; pomeroy, "some account of the work of stephen j. field," .] justices of the supreme court have since sat on international tribunals of arbitration, but this is, or should be, a strictly judicial proceeding. in the state constitutions, the judges of the highest courts are now often expressly forbidden to accept other office,[footnote: see chap xxii.] but in the absence of such a prohibition it would be considered as unbecoming. formerly and during the first third of the nineteenth century this was in many states not so. some were then judges because they held legislative office and as an incident of it. others did not hesitate to accept political positions. of the six federalist electors chosen in new hampshire at the presidential election of , three were judges of her supreme court.[footnote: wharton's state trials, .] judges have frequently taken part in constitutional conventions of their states. in virginia, chief justice marshall was a member of that of , and judge underwood of the district court presided over that of . chancellor kent and chief justice spencer were members of that of in new york. it may well be doubted if the advantages to be gained by their counsel in such a position are not outweighed by the evil of exposing it to criticism as dictated by selfish considerations. a member of the new york convention thus alluded upon the floor to the measures supported by the chief justice and chancellor: he regretted that such an opinion and plan had been proposed by the chief justice. it must have arisen from the politics of the supreme court. the judges of that court had been occupied so much in politics that they had been compelled to press upon the public a system that had nothing else to recommend it than such a relief to themselves from the burthen of official duties as would leave them to the free exercise of their electioneering qualifications. but for this, the chief justice might have shown a holt, or a mansfield. the elevated character of the chancellor had been often asserted and alluded to. he meant no disrespect to that honorable gentleman. he respected him as highly as any man when he confined himself to the discharge of the official duties of his office; but when he stepped beyond that line; when he became a politician, instead of being his fancied oak, which, planted deeply in our soil, extended its branches from maine to mexico, he rather resembled the bohon upas of java, that destroyed whatever sought for shelter or protection in its shade.[footnote: reports of the proceedings and debates of the convention of , .] the pardoning power is essentially of a political nature. judicial officers are to do justice. mercy is an act of policy or grace. a pardon after conviction presupposes guilt. nevertheless, in a few states this royal prerogative of pardoning has been committed to a board of officers, headed by the governor, of which some of the judiciary are members. there is this advantage in it, that judges know best how fully circumstances of extenuation are always taken into account by the court before pronouncing sentence, and therefore cannot but exercise a restraining power against the influences of mere sentimental promptings to inconsiderate clemency. it may be said, in general, that the tendency towards keeping the judiciary apart from any active connection with the executive department has steadily increased since the first quarter of the nineteenth century. when our position as a neutral power, in , involved us in serious questions affecting the rights of great britain and france, washington's cabinet advised him that the ministers of those countries be informed that the points involved would be referred to persons learned in the law, and that with this in view the justices of the supreme court of the united states be invited to come to the capitol, six days later, "to give their advice on certain matters of public concern, which will be referred to them by the president."[footnote: jefferson's writings, library ed., i, .] nothing of this nature would now be dreamed of, under any conditions. * * * * * chapter iv the force of judicial precedents the antipathy to legal codification, which, until recent years, was a characteristic both of the english and american bar, and still prevails, though with diminishing force, has given, and necessarily given, great force to judicial precedents. it is mainly through them that with us unwritten law passes into written law. precedent is a fruit of reason ripened by time. time, it has been said, is the daughter of antiquity and takes place after reason, which is the daughter of eternity. precedent rests on both. a legal code framed in any american state is little more than the orderly statement of what american courts have decided the law to be on certain points. when reason is set to work upon the solution of a problem growing out of the affairs of daily life, it often happens that two minds will pursue different paths and perhaps come to different results. not infrequently neither result can fairly be pronounced untenable. an english judge has said that nine-tenths of the cases which had ever gone to judgment in the highest courts of england might have been decided the other way without any violence to the principles of the common law. every lawsuit looks to two results: to end a controversy, and to end it justly; and in the administration of human government the first is almost as important as the last.[footnote: hoyt _v._ danbury, conn. reports, , .] certainty is of the essence of justice; but among men and as administered by their governments it can only be such certainty as may be attained by an impartial, intelligent, and well-trained judge. if such a judge has, after a proper hearing, declared what, under a particular set of circumstances, the law is which determines the rights of the parties interested, this declaration makes it certain, once and forever, as far as they are concerned, and helps to make it certain as to any others in the future between whom there is a controversy under circumstances that are similar. if it is the declaration of a court of supreme authority it is ordinarily accepted as of binding force by any inferior courts of the same government, and treated with great respect and as high evidence of the law by any other of its superior courts, as well as by courts of other states before which a similar question may be presented. a decision on a point of law by the highest court in a state does not, however, bind its lower courts as absolutely as would a statute. an inferior court may disregard it and decide the same point another way if it be fully satisfied that the action taken by the court above was ill-considered and erroneous. it is possible that in such event, on reconsideration, the court of last resort may reverse its original position.[footnote: a good instance of this is furnished by the case of johnson _v._ people, illinois reports, ; northeastern reporter, . in mcfarland _v._ people, illinois reports, , the supreme court had stated in its opinion, that if two unimpeached witnesses gave the only testimony as to a certain point material to the plaintiff's case, and testified in contradiction of each other, the case failed for want of proof. many years later a charge to the jury to this effect was asked and refused in an inferior court. an appeal was taken to the supreme court, and there mr. justice schofield, the author of the original opinion, thus disposed of it: "although in mcfarland _v._ people, iii., , the writer of this opinion expressed the belief that a similar instruction was free of legal objection, his remarks in that respect were unnecessary to a determination of the case then before the court, and they were made without sufficient consideration, and are manifestly inaccurate. they are now overruled. the question of competency is one of law, and therefore for the court; but the question of credibility,--that is, of worthiness of belief,--and therefore the effect of the competent evidence of each witness, is one of fact, and for the jury."] if not, that acquires by this attack a double force. chief justice bleckley of georgia once remarked that courts of last resort lived by correcting the errors of others and adhering to their own. nevertheless, they have often, years after formally announcing a certain legal doctrine in one of their opinions, declared it to be unsound, and overruled the case in which it was laid down. they do this, however, with natural and proper reluctance, and never if this doctrine is one affecting private rights of property and has been followed for so long a course of time that it may be considered as a rule on which the people have relied in exchanging values and transferring titles. the public, however, have rights to be regarded as fully as individuals, and if a right of private ownership has been adjudged to exist, which involves a public loss, the precedent thus created might be overruled with less hesitation than one would be determining rights and correlative obligations that were purely private. thus the north carolina courts for seventy years held that a public office was the private property of the incumbent. no other courts in the united states took that view, and it has, by a recent decision, been repudiated in north carolina.[footnote: mial _v._ ellington, north carolina reports, ; southeastern reporter, ; lawyers' reports annotated, .] still more are public interests to be regarded when a question arises as to reversing a decision as to the proper construction of a constitutional provision. if a judicial mistake be made in construing a statute it is easily remedied. the next legislature can amend the law. but a constitution can only be amended with extreme difficulty and by a slow process. if the court falls into error as to its meaning, the correction must ordinarily come from its own action or not at all. hence an opinion on a matter of constitutional construction is less to be regarded as a final and conclusive precedent than one rendered on a matter of mere private right. it has been the position of some american statesmen and jurists that judicial decisions on points of constitutional construction were not binding upon the executive or legislative department of the government. president jackson asserted this with great force in his message to the senate of july , , disapproving the re-charter of the bank of the united states. he conceded, however, that a judicial precedent may be conclusive when it has received the settled acquiescence of the people and the states. but while such acquiescence may strengthen the authority of a decision, it can hardly be regarded as that which gives it authority. that comes from the fact that it is an exercise of the judicial power of the government in a case for the disposal of which this judicial power has been properly invoked. the decision of the court in mcculloch _v._ maryland[footnote: wheaton's reports, . see willoughby, "the american constitutional system," , .] unquestionably settled forever, as between the cashier of the bank and the state of maryland, that the bank was a lawful institution. that in osborn _v._ the bank of the united states[footnote: wheaton's reports, .] reaffirmed it as between the bank and the treasurer of the state of ohio. it would be intolerable if such judgments were not in effect equally conclusive for the determination of all controversies between all men and all states growing out of the creation of such a corporation. practically, then, the opinion of the executive department to the contrary could only be of importance in such a case as jackson had in hand; that is, in its influencing executive action in approving or disapproving some proposed measure of legislation. it could not disturb the past. the authority of a judicial precedent is weakened if it comes from a divided court, and especially if a dissenting opinion is filed in behalf of the minority. a silent dissent indicates that the judge from whom it proceeds is not so impressed by the fact, or the importance to the public, of what he deems the error of the majority that he thinks it worth while to express the reasons which lead him to differ from them. no departure from precedent in any american court has ever awakened so much feeling as that by the supreme court of the united states in , when it decided that congress could make government notes a legal tender for debts contracted before the law was passed.[footnote: the legal tender cases, wallace's reports, , .] it had held precisely the contrary two years before,[footnote: hepburn _v._ griswold, wallace's reports, .] but it was by a bare majority and in the face of a strong dissenting opinion. in the opinions filed in the second case stress was laid upon this division of the court.[footnote: wallace's reports, , . see george f. hoar, "autobiography," i, .] the word "established" is often used to describe the kind of precedent to which courts are bound to adhere. what serves to establish one? long popular usage, repeated judicial affirmations, and general recognition by approved writers on legal topics. of these, in fact, the last is probably the most powerful. lawyers and courts, in countries without codes, get their law mainly from the standard text-books. such authors as coke, blackstone, kent and cooley are freely cited and relied on as authorities by the highest tribunals.[footnote: see, for instance, western union telegraph co. _v._ call publishing co., united states reports, ; louisville ferry co. _v._ kentucky, united states reports, , .] it is by the writings of such men that judicial precedents are sifted and legal doctrines finally clothed in appropriate terms and arranged in scientific order. the english courts long ago declared it to be a rule of law to prevent perpetuities that no estate in lands could be created which was not to commence within the compass of a life or lives of persons then existing, with an exception intended to favor a minor heir. american courts accepted this rule, but some of them construed it as meaning that no estate in lands could be created which was to continue after the expiration of such a period. this construction was shown by professor john c. gray, in a work on "perpetuities," to be unwarranted, and since its publication the cases which had proceeded on that basis have been generally treated as erroneous. the nature of a legal presumption, also, had been misconceived by several american courts. it had been treated as evidence of facts.[footnote: coffin _v._ united states, united states reports, .] professor j. b. thayer, in his "preliminary treatise on evidence,"[footnote: pages , - .] argued so forcibly against this view that in at least one state a decision in which it had been taken has been formally overruled.[footnote: vincent _v._ mutual reserve fund life association, connecticut reports, , ; atlantic reporter, .] the court of appeals of new york once held in a carefully prepared opinion that a railroad might be built along the shore of a navigable river, under authority from the state, without first making compensation to the riparian proprietors, whose access to the waters might thus be obstructed.[footnote: gould _v._ hudson river railroad co., new york reports, .] in a text-book written by chief justice cooley, this decision was justly criticised,[footnote: cooley on constitutional limitations, .] and not long after the publication of that work it was formally overruled.[footnote: rumsey _v._ new york and new england railroad co., new york reports, ; northeastern reporter, ; lawyers' reports annotated, .] it is safe to say that its fate was largely the result of the comments thus made by a distinguished jurist, whose only motive could be to maintain the integrity and consistency of legal science. the general doctrine of the courts, which is commonly expressed by the rule "_stare decisis_," was never better stated than by chief justice black of pennsylvania, in these words: when a point has been solemnly ruled by the tribunal of the last resort, after full argument and with the assent of all the judges, we have the highest evidence which can be procured in favor of the unwritten law. it is sometimes said that this adherence to precedent is slavish; that it fetters the mind of the judge, and compels him to decide without reference to principle. but let it be remembered that _stare decisis_ is itself a principle of great magnitude and importance.... a palpable mistake, violating justice, reason and law, must be corrected, no matter by whom it may have been made. there are cases in our books which bear such marks of haste and inattention, that they demand reconsideration. there are some which must be disregarded, because they cannot be reconciled with others. there are old decisions of which the authority has become obsolete, by a total alteration in the circumstances of the country and the progress of opinion. _tempora mutantur_. we change with the change of the times, as necessarily as we move with the motion of the earth. but in ordinary cases, to set up our mere notions above the principles which the country has been acting upon as settled and established, is to make ourselves not the ministers and agents of the law, but the masters of the law and the tyrants of the people.[footnote: mcdowell _v._ oyer, harris' reports, .] generally, overruling a former decision is due to a change of circumstances, which has given the court a new view-point. a marked instance of this occurred in , in proceedings before the supreme court of the united states. more than a quarter of a century before, a suit in admiralty for seamen's wages on an inland river had been dismissed by the district court of kentucky for want of jurisdiction, and on appeal this action had been affirmed. mr. justice story gave the opinion of the court, and said that a court of admiralty could only take cognizance of such a claim when the services were rendered at sea or upon waters within the ebb and flow of the tide.[footnote: the thomas jefferson, wheaton's reports, .] this was undoubtedly a true statement of what had always been the doctrine of both english and american courts. but out of what did this doctrine spring? from the fact that in england there were no navigable waters except those in which the tide ebbed and flowed, and that in the united states, up to that time, there were none of a different kind which had been largely used for commercial purposes. twenty years passed. steam navigation had opened the great lakes and the great rivers of the country to a profitable carrying trade. the day was dawning when the bulk of american shipping was to be employed upon them. a suit in admiralty was brought against a ship for sinking another on lake ontario. the defendants put in an answer relying on the doctrine laid down by story. the district court overruled it. the case came by appeal to the supreme court, and in an opinion by chief justice taney the appeal was dismissed. "the conviction," he said, referring to the opinion of mr. justice story, "that this definition of admiralty powers was narrower than the constitution contemplated, has been growing stronger every day with the growing commerce on the lakes and navigable rivers of the western states.... these lakes are in truth inland seas. different states border on them on one side and a foreign nation on the other. a great and growing commerce is carried on upon them between different states and a foreign nation, which is subject to all the incidents and hazards that attend commerce on the ocean. hostile fleets have encountered on them and prizes been made, and every reason which existed for the grant of admiralty jurisdiction to the general government on the atlantic seas applies with equal force to the lakes. there is an equal necessity for the instance and for the prize power of the admiralty court to administer international law, and if the one cannot be established neither can the other.... the case of the _thomas jefferson_ did not decide any question of property or lay down any rule by which the right of property should be determined.... the rights of property and of parties will be the same by whatever court the law is administered. and as we are convinced that the former decision was founded in error, and that the error, if not corrected, must produce serious public as well as private inconvenience and loss, it becomes our duty not to perpetuate it."[footnote: the genesee chief, howard's reports, , .] but without any change of circumstances, the proper desire of all american courts to keep their common law in harmony with that of the other states is often sufficient to induce the abandonment of a doctrine once distinctly asserted.[footnote: city of south bend _v._ turner, indiana reports, ; northeastern reporter, .] the consistency of american law as a whole is immeasurably more important than the consistency of the law of any single state. sometimes a court of last resort treats a doctrine which it had formerly asserted as manifestly unsound and abandons it without stopping to give a reason or even to overrule the decision which first announced it. illinois for a long generation adopted the rule that if an injury occurred to one man through the concurring negligence of himself and another, but his negligence was slighter than that of the other, he might hold the latter responsible for the damages suffered.[footnote: andrews, "american law," , .] it was not a doctrine justified by the common law nor generally held in this country, and in the supreme court of the state refused to recognize it, with little or nothing more than this brief _ipse dixit_: "the doctrine of comparative negligence is no longer the law of this court."[footnote: lanark _v._ dougherty, illinois reports, ; northeastern reporter, .] occasionally a case is overruled because it has been forgotten. an early decision in massachusetts (loomis _v._ newhall[footnote: pickering's reports, .]) had affirmed the position that if a statute required contracts of a certain kind to be put in writing, and a contract of that kind, but embracing also a different and distinct matter not touched by the statute, was made orally, it was wholly void. such a rule was illogical and unsound, and in a later decision the same court, forgetting that it had indorsed it, said so, and said so when it was not necessary to the decision.[footnote: irvine _v._ stone, cushing's reports, , .] subsequently, both these cases having been brought to its attention, it affirmed the latter, though remarking that "what was there said on this point was not essential to the decision of that case, and would have been omitted or modified if loomis _v._ newhall had been then remembered."[footnote: rand _v._ mather, cushing's reports, , .] the authority of an opinion as a precedent on any point is always proportioned to the necessity of determining that point in order to support the judgment which was rendered. some judges write treatises instead of decisions or in addition to decisions. whatever goes beyond that which is required to show that the judgment is the legal conclusion from the ascertained facts is styled in law language _obiter dictum_. it may be interesting and even persuasive, but it is not an authoritative statement of law. it may grow to be such by adoption in subsequent cases. the court of king's bench in england was called on, at the beginning of the eighteenth century, to say whether if a man undertook as a friendly act, and not for pay, to cart another's goods, and did it carelessly, he was bound to answer for any damage that might result. there were four judges who heard the case, of whom three gave their opinions.[footnote: coggs _v._ bernard, lord raymond's reports, .] two of these opinions were confined to the precise point of law on which the case turned. in the third, chief justice holt seized the opportunity to lay down the law of england as to all sorts of contracts arising out of the reception by one man of the goods of another. this he did mainly by setting forth what were the rules of the roman law on the subject, but not referring to their roman origin, and quoting them, so far as he could, from bracton, an english legal writer of the thirteenth century, who had also stated them as english law. for four or five centuries these rules had been laid down in an unofficial treatise, but the courts had not fully recognized them. now the chief justice of england had given such recognition in the amplest manner. meanwhile the trade of england had reached a point at which some definite rules on all these matters had become of the utmost importance. the bar were only too glad to advise their clients in accordance with lord holt's opinion. it was not long before it was universally practiced upon, and no case in the english language touching contract relations of that nature is of greater importance as a precedent. yet it became such not because of its intrinsic authority as a judgment, so much as on account of its orderly and scientific statement of a whole body of law of a kind that the people needed and for the origin of which--whether at rome or london--they cared little, so long as it had been accepted by the highest judicial authority in the realm. on the other hand, the greatest judges have often, in delivering the opinion of the court, asserted doctrines the consideration of which was not essential to the decision, and later retracted the assertion on fuller consideration or seen the court in a later case retract it for them. two of the great opinions of chief justice marshall are marbury _v._ madison[footnote: cranch's reports, .] and cohens _v._ virginia.[footnote: wheaton's reports, .] in the first the court held that it had no jurisdiction to command the secretary of state to deliver a commission executed under the preceding administration, because, although congress had assumed to confer it, congress had no power to do so; and in defending this position marshall observed that the constitution defined the jurisdiction of the supreme court over cases brought there in the first instance, and that in this clause of the constitution affirmative words had the force of negative words so far as to exclude jurisdiction over any other cases than those specifically mentioned. in the second case this observation was relied on by virginia to defeat the power of the court to review a state judgment. but, said the chief justice, "it is a maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. if they go beyond the case they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision.... in the case of marbury _v._ madison, the single question before the court, so far as that case can be applied to this, was whether the legislature could give this court original jurisdiction in a case in which the constitution had clearly not given it, and in which no doubt respecting the construction of the article could possibly be raised. the court decided, and we think very properly, that the legislature could not give original jurisdiction in such a case. but in the reasoning of the court in support of this decision some expressions are used which go far beyond it.... the general expressions in the case of marbury _v._ madison must be understood with the limitations which are given to them in this opinion; limitations which in no degree affect the decision in that case or the tenor of its reasoning." he then proceeded to dispose of the case in hand by saying that virginia having obtained an erroneous judgment against cohens, cohens had a right to appeal, and the suit still remained a suit by a state against him and not by him against a state. unfortunately, here again came in next an _obiter dictum_. if, he said, this were not so, there was another principle equally decisive in support of the jurisdiction, namely, that the constitution gave the united states judicial power over all cases arising under the constitution or laws of the united states without respect to parties. nearly a hundred years later a state was sued in the courts of the united states on a cause of action arising under the constitution, and cohens _v._ virginia was relied on as a precedent. "it must be conceded," was the reply of the supreme court, "that the last observation of the chief justice does favor the argument of the plaintiff. but the observation was unnecessary to the decision, and in that sense extra-judicial, and though made by one who seldom used words without due reflection, ought not to outweigh the important considerations referred to which lead to a different conclusion."[footnote: hans _v._ louisiana, united states reports, , .] it may be added that decisions on a point not material to the cause are generally made without the benefit of previous argument by counsel. the lawyers will naturally address themselves to the controlling questions, and if well trained will see what these are quite as clearly as the court. it is the argument at the bar, in which different views of law are presented and each defended by men of learning and ability, which enables the judge, after hearing both sides and weighing all that is said in behalf of one against all that is said in behalf of the other, to come to the true conclusion. the romans recognized this in their rule as to the force of precedent in a matter of customary law. the first thing to ask was whether "_contradicto aliquando judicio consuetudo firmata sit_."[footnote: "digest," , , _de legibus_, etc., .] the retrospective effect which a refusal to follow a former decision may have in disturbing vested rights being one of the most cogent reasons for adhering to precedent, there is less objection to departing from it when the decision can be so limited as to have only a future operation. this is occasionally feasible. thus the high court of errors and appeals of mississippi by an early decision held that on the dissolution of a bank all its rights and liabilities were extinguished. thirty years later the supreme court of the same state overruled that decision, declaring it "condemned by reason and the principles of modern and enlightened jurisprudence," but nevertheless applied it as a controlling precedent to a case arising out of the dissolution of a bank which had been incorporated previously to the time when the original decision was made.[footnote: bank of mississippi _v._ duncan, mississippi reports, .] the effect of overruling a former opinion may also be limited by the dual character of our government. the courts of the united states follow the decisions of the state courts in the determination of matters of state law. if a state law is held by the courts of the state to have a particular meaning and effect it will be accorded the same in the federal courts. but if a federal judgment is for that reason rendered in a certain form, and there is no appeal, it settles the rights of the parties to the suit forever, even should the state courts afterward reverse their former rulings as being erroneous.[footnote: deposit bank _v._ frankfort, united states reports, .] de tocqueville, in his estimate of the american bar,[footnote: "democracy in america," ii, chap. xvi.] speaks of it as devoted to investigating what has been done rather than what ought to be done; to the pursuit of precedent rather than of reason. in a very limited sense this is true. where codes are wanting, former judicial decisions must serve in their place. but it would be a mistake to suppose that it is a large part of the business of american lawyers to search out precedents for the guidance of the courts. most cases, after any facts in dispute are once settled, depend on the application of the simplest processes of ordinary reasoning. no aid from the past is needed for this and none is to be had. it has been well said by an english judge[footnote: james, l. j., in , law reports, chancery appeal cases, .] that the clearer a thing is the more difficult it is to find any express authority or any _dictum_ exactly to the point. nor, if there be one, is it to be accepted without regard to the circumstances out of which it arose or the end to be effected by the judgment. a precedent may indeed be used slavishly, but so it may be used in the free spirit in which it was conceived. many an argument at the bar, however, is ruined by an excessive anxiety to repeat the _ipsissima verba_ of some ancient opinion, when the soul of it is the only thing of value. and occasionally courts are chargeable with pursuing the letter of some of their former deliverances rather than the spirit which called them forth and gave them all their vitality. * * * * * chapter v the judicial power of developing unwritten law the english common law was and is an unwritten law. to find it one has to look in legal treatises and reports of judicial decisions. its historical development has been not unlike that of rome. in rome, as in england, there were in early times written enactments or governmental declarations of standing rules on but few points. some of these writings were of special importance, such as the twelve tables of rome and the _magna charta_ of england. these were regarded as so bound up with the very life of the people as to have a place by themselves, and a superior force to anything to the contrary to which the free consent of the people was not formally given. but in general romans and englishmen preferred to make custom their law, and to let this law grow "not with observation," but insensibly from day to day as the needs of their social organization might be found to require. it was a wise preference, and founded on a better philosophy than they knew--than the world knew, until the theory of evolution was demonstrated by darwin and applied to governmental science by spencer. a customary law for a people of advancing civilization and power must expand with corresponding rapidity. there will soon be disputes as to what it is on certain points and a demand for some authoritative information as to this. in rome, the priests gave it at first, and then the lawyers. in england, the priests never gave it, as priests. there was no sacred college of law. priests took part in legislation. a priest, at the king's right hand, was his spokesman in doing equity. but it was from the first the king as a judge, or the king's judges deputed by him and sitting for him, who settled controverted questions of common law. for the roman and for the englishman the first representatives of government who could be called judges were primarily and principally executive officers. the roman _prætor_ was not given judicial functions because he had legal attainments. the _aula regis_ of early england was composed of the great officers of state. the chief justiciar, however, soon ceased to be prime minister. his associates on the bench, as law became a recognized profession, came to be chosen largely for their fitness for judicial work and to be kept at it during the king's pleasure. at rome, on the contrary, the prætorship remained a political place, held for a fixed term, and a brief one. information as to the unwritten law applicable to any controversy between parties had therefore to be sought from others. the lawyers could give it; and it was to them, not to the judges, that resort was had. the opinion of a great jurist was for rome what the opinion of a judge was for england. it was commonly accepted as conclusive not only by the people but by the courts. such opinions profess to state what the law was by which rights accrued out of a past transaction. in fact, they often do much more. by declaring that to be the law, and declaring it with authority, they are the first to make it certain that it is the law. the difference between this and making law is not great. the romans at first accorded authority to the opinions (_responsa_) of lawyers only because of the standing and reputation of those who gave them. later the emperors gave an official character and weight to the opinions of certain lawyers of the past. the english always accorded authority to the opinions of their judges, because they spoke for the state. americans from the first have done the same. american judges have exercised these powers of ascertaining and developing unwritten law even more freely than english judges. they were forced to it as a result of applying the common law of one people to another people inhabiting another part of the world and living under very different social conditions. in doing this it was necessary to reject not a little of what for england had already been definitely settled and universally accepted. the legislatures of the colonies and states rejected much, but the courts rejected more. the legislatures also added much, but the courts added yet more. usages grow up rapidly in new settlements and along frontiers bounded by territory held by savages. of such usages, under the rulings of the courts, many were soon crystallized into law. new inventions and new political conceptions in the eighteenth century began to change the face of the civilized world. the common law as to agency had to be adapted to the operations of business corporations; that as to highways to railroads; that as to contracts by mail to contracts by telegram, and later to contracts by telephone. the whole law of master and servant, which for the english people was bottomed on the relation of land-owner and serf, was to be recast. public assemblies were to be regulated and their proceedings published with greater regard to public and less to private interest.[footnote: barrows _v._ bell, gray's reports, ; american decisions, .] along all these lines and many others the american courts have now for nearly three hundred years been quarrying out american law from the mine of the unwritten law of the people within their jurisdiction. it has been their natural endeavor to make each part of the new system of jurisprudence which they were gradually building up harmonious with every other and to give a certain symmetry to the whole. this has forced them to deduce rule from rule and principle from principle with a freedom for which in older countries of settled institutions there is less occasion. the process has gone on during the last fifty years with ever-increasing rapidity, and for two reasons. there have been more novel questions to meet and there has been a greater wealth of suggestion and precedent at command. not a little, however, of the development of our unwritten law has been and remains of a local character. this is particularly true of that of the pacific states, both on account of climatic conditions and historical antecedents.[footnote: katz _v._ walkinshaw, california reports, .] chief justice field of the supreme court of california, afterward so long a member of the supreme court of the united states, did both a constructive and a destructive work in shaping the jurisprudence of that state. he found it seated in a land on which certain institutions of civil law origin had been impressed for centuries and into which other institutions of common law origin had been introduced in recent years. his judicial opinions molded these into one mass, rejecting something from each and retaining something from each.[footnote: pomeroy, "some account of the work of stephen j. field," , .] some of the results of his creative touch have been the foundation of decisions in distant states, but most were so dependent on local circumstances and conditions as to be incapable of transplantation. but as to all questions of general concern which can be answered from analogies drawn from the common law, the judges of each state--and it is the state judiciary on which the burden of developing unwritten law mainly rests--now find in the reported decisions of the courts of last resort in all the other states a fertile source of supply when they are looking for a rule to fit a case for which the ancient law made no direct provision. keen intellects from the bench, aided perhaps by keener ones from the bar in forty-five different jurisdictions, are discussing the problems of the day as they appear mirrored in litigated causes. what is a new question in one state was set at rest ten years or ten days ago by a judicial decision in another. if the decision was a just and logical deduction from accepted principles of the older law it will probably be followed everywhere. if unjust and illogical, its very faults will serve to guard other courts to better conclusions. how far judges advance along these paths depends greatly on the character of the bar. a judge rarely initiates anything. he is apt to fall into a mistake if he does. the business which he has to do is brought before him by others. it is brought before him in the best way to throw all possible light upon it, because it is set before him from two opposite points of view by two antagonists, each strenuously endeavoring to detect a flaw in the reasoning of the other. these two men have previously given the subject in controversy much careful thought. what views neither presents are generally not worth presenting. as was said in the preceding chapter, it is only in the plainest case that a judge can properly or safely base his decision on a position not suggested at the bar or as to the soundness of which he has not asked the opinion of the counsel at the hearing. the development of law, therefore, whether unwritten or written, is primarily the work of the lawyer. it is the adoption by the judge of what is proposed at the bar.[footnote: see chap. vi, x.] there are obvious limits to this power of developing unwritten law. the courts are not to push forward into a place more appropriate for the legislature to occupy. mr. justice holmes of the supreme court of the united states, when chief justice of massachusetts, stated with his usual elegance and force the bounds within which, as it seemed to him, judicial authority should be kept. in a common law suit against a railroad company for damages suffered by an accident on its road, the defendant had asked the trial court to order the plaintiff to submit to an examination of his person by a physician whom it named, for the purpose of determining what injuries he had really suffered. "we agree," said the chief justice, "that in view of the great increase of actions for personal injuries it may be desirable that the courts should have the power in dispute. we appreciate the ease with which, if we were careless or ignorant of precedent, we might deem it enlightened to assume that power. we do not forget the continuous process of developing the law that goes on through the courts in the form of deduction or deny that in a clear case it might be possible even to break away from a line of decisions in favor of some rule generally admitted to be based upon a deeper insight into the present wants of society. but the improvements made by the courts are made, almost invariably, by very slow degrees and by very short steps. their general duty is not to change, but to work out, the principles already sanctioned by the practice of the past. no one supposes that a judge is at liberty to decide with sole reference even to his strongest convictions of policy and right. his duty in general is to develop the principles which he finds with such consistency as he may be able to attain.... in the present case we perceive no such pressing need of our anticipating the legislature as to justify our departure from what we cannot doubt is the settled tradition of the common law to a point beyond that which we believe to have been reached by equity, and beyond any to which our statutes dealing with kindred subjects ever have seen fit to go. it will be seen that we put our decision, not upon the impolicy of admitting such a power, but on the ground that it would be too great a step of judicial legislation to be justified by the necessities of the case."[footnote: stack _v._ new york, new haven and hartford railroad co., massachusetts reports, ; northeastern reporter, .] the theory of judicial power thus stated carries implications that would not be universally accepted. it is intimated that if the necessity had seemed strong enough to call for the order asked for in the trial court it ought to have been granted, although not justified by any settled rule or authoritative precedent, nor by any clear analogy from such a rule or precedent. this is a view taken, though with less caution and qualification, in a work written by the same hand many years before, which is recognized as a legal classic on both sides of the atlantic. in "the common law,"[footnote: pp. , .] after discussing some of the reasons which actuate judges in assuming to unfold the unwritten law, it is stated thus: the very considerations which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life. i mean, of course, considerations of what is expedient for the community concerned. every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy: most generally, to be sure, under our practice and traditions the unconscious result of instinctive preferences and inarticulate convictions, but none the less traceable to views of public policy in the last analysis.... the truth is that the law is always approaching and never reaching consistency. it is forever adopting new principles from life at one end, and it always retains old ones from history at the other, which have not yet been absorbed or sloughed off. it will become entirely consistent only when it ceases to grow. courts enter on a dangerous ground when, to justify their action, they rely on any rule of public policy not stated in constitution or statute and unknown to the common law. if such was once the habit of the english courts, it was because of social conditions with which they had to deal which no longer exist either in their country or in ours. it is for the judge to adapt old principles rather than adopt new ones. what one man thinks is public policy another, equally clear-headed and well-informed, may not. the safe course for the judiciary is to rely on the legislature to declare it, so far as the common law does not. if, however, the courts of a state are called upon for the first time to declare what any rule of the common law, governing a past transaction, is, or at a given time was, in that state, and this be a doubtful question, the decision virtually calls for the making of a new rule, though under the form of applying an old one, and that will be adopted which may be deemed best calculated to do justice in cases of that particular character.[footnote: seery _v._ waterbury, conn., , ; atlantic reporter, .] * * * * * chapter vi the judicial power of interpreting and developing written law as governments must provide some authority to declare what the unwritten law governing any transaction was, so they must provide some authority to declare what the written law governing any transaction means. few statements of any rule or principle can be written out in such a way as to convey exactly the same impression to every mind. thought is subtler than its expression. the meaning of written laws will therefore often be questioned. an answer is sometimes attempted by the authority from which the law proceeded. a king declares what he intended by the terms of an ambiguous edict. a legislature passes an act to declare the meaning of a previous one. but meanwhile rights have accrued. something has been done in reliance upon a certain construction of the law. if it was a right construction, then what was done was lawful, and no subsequent explanation of his intentions by the lawgiver can change this fact. laws are addressed to the community at large, and their meaning must be determined once for all from the language used, however inadequate it may have been to express the real design of those who enacted them, unless that design so clearly appears, notwithstanding an unfortunate choice of words, as to compel an interpretation against the letter but in obedience to the spirit of the enactment. a "declaratory statute"--one declaring what a previous statute meant--is therefore, if it gives it a meaning unwarranted by its terms when so interpreted, only effectual as respects future transactions. as to the past, the meaning is for the courts, and while such a statute may aid, it cannot control them. are the courts to send such questions to a jury or shall the judges decide them? the answer must be determined by considerations applicable to every sort of written paper. if the true construction of an ambiguous document be left to juries, it is evident that there would be no certainty that different results would not be reached in different cases, and probable that unanimity would seldom be attainable. if left to judges, a decision will certainly be reached and, it may be presumed, be reasoned out with care, while if the matter be one of public importance the grounds on which they proceed will be so expressed as to furnish a guide to others toward the same conclusion. the construction of all writings is therefore, by the anglo-american common law, as by the judicial system of most countries, deemed, in case of a question affecting litigated rights, to belong of right to the judges. their possession of this power in the united states is especially necessary in respect to written law. in every government there must be some human voice speaking with supreme authority. it may be that of one man or of many men. the essential thing is that it should be a personal utterance, proceeding from persons to whom, by acknowledged law or custom, submission is due, and one that, if need be, can be enforced by the whole power of the state. the fundamental principle of american government, as laid down in the words of harrington in the oldest of our state constitutions, after which many of the rest, and that of the united states as well, have been largely patterned, is that it is one of "laws and not of men."[footnote: constitution of massachusetts, part the first, art. xxx, quoted more fully in chapter ii.] laws, however, must be administered by men. their meaning, if it be uncertain, must be determined by men. it must be the subject, as the same constitution twice affirms, of "impartial interpretation."[footnote: _id_., preamble, and part the first, art. xxix.] this interpretation is really what gives them force. it is the personal utterance of one speaking for the state, and who speaks the last word. it was simply following english precedent to give this power to the courts as respects legislative enactments. but the principle which required it inevitably extended with equal force to constitutional provisions. the people who adopt written constitutions for their government put their work in a form which must often give rise to questions as to what they intended to express. they rely on the judiciary to secure their enforcement, and the judiciary must enforce them according to what it understands their meaning to be. there is but a step from interpretation to enlargement. every statute is passed to accomplish something. if the object is clear, the rules of anglo-american law allow the court that may be called on to apply it to extend its operation to cases within the purpose evidently intended, although the language used is inadequate fully to express it. this is styled giving effect to "the equity of the statute." even violence can be done to the words, if so only can this judge-discovered intent be made effectual. the rules governing judicial interpretation of statute law fill a good-sized volume. as the roman lawyers worked out by force of logic and analogy an extensive system of private law from the meagre fabric of the twelve tables, so under the lead of american lawyers american judges have applied the processes familiar in the development of unwritten law to the development of our written law, both statutory and constitutional. carlyle said that the roman republic was allowed so long a day because on emergencies the constitution was suspended by a dictatorship. the american republics have a right, upon this theory, to a still longer one. with them the constitution need not be temporarily set aside on an emergency. it may simply be permanently enlarged or limited by judicial construction. a constitution is the garment which a nation wears. whether written or unwritten, it must grow with its growth. as mr. bryce has put it: "human affairs being what they are, there must be a loophole for expansion or extension in some part of every scheme of government; and if the constitution is rigid, flexibility must be supplied from the minds of the judges."[footnote: "studies in history and jurisprudence," .] the constitution of the united states declares that no state shall pass any law impairing the obligation of contracts. this proposition being the major premise, chief justice marshall added the minor premise that every charter of a private corporation is a contract, and completed the syllogism by the conclusion that no state can pass any law impairing the obligation of such charters. the counsel who opposed this doctrine urged that every one must acknowledge that neither the men who framed the constitution nor the people who adopted it ever thought that the word "contracts," as so used, embraced "charters." be it so, was marshall's answer, that proves nothing unless you can go farther and satisfy the court that if they had contemplated the construction we put upon it they would have used words to exclude it.[footnote: dartmouth college _v._ woodward, wheaton's reports, .] the acquisition of foreign territory is a matter not especially provided for in the constitution of the united states. jefferson hesitated to make the louisiana purchase on this account, and was quite inclined to think, when he did make it, that he had transcended the bounds of his authority. the courts gave the constitution a different interpretation, and stamped this upon it as permanently as if it had been a birthmark. it was done by marshall in a single sentence. "the constitution," he observed, "confers absolutely on the government of the union the powers of making war and of making treaties: consequently that government possesses the power of acquiring territory either by conquest or by treaty."[footnote: american insurance co. _v._ canter, peters' reports, , .] in the course of the same opinion, the great chief justice led the way toward the doctrine, to be developed later, that the manner in which such territory was to be held and its inhabitants governed need not be such as the constitution prescribed for the territory within one of the united states. it was to be prescribed by congress under its power "to make all needful rules and regulations respecting the territory or other property belonging to the united states." congress had set up a legislative council in the territory of florida, and the legislative council had established a court of admiralty, with judges holding office for four years. the case in hand turned upon the effect of a judgment of that court. it was contended at the bar that it had no effect, because by the express terms of the constitution the judicial power of the united states extended to all cases of admiralty jurisdiction, and must be vested in one supreme court and such inferior courts as congress might ordain. "we have only," was marshall's reply, "to pursue this subject one step further to perceive that this provision of the constitution does not apply to it. the next sentence declares that 'the judges both of the supreme and inferior courts shall hold their offices during good behaviour.' the judges of the superior courts of florida hold their offices for four years. these courts, then, are not constitutional courts in which the judicial power conferred by the constitution on the general government can be deposited. they are incapable of receiving it. they are legislative courts, created in virtue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables congress to make all needful rules and regulations respecting the territory belonging to the united states. the jurisdiction with which they are invested is not a part of that judicial power which is defined in the third article of the constitution, but is conferred by congress in the execution of those general powers which that body possesses over the territories of the united states. although admiralty jurisdiction can be exercised in the states in those courts only which are established in pursuance of the third article of the constitution, the same limitation does not extend to the territories. in legislating for them, congress exercises the combined powers of the general and of a state government."[footnote: 'american insurance co. _v._ canter, peters' reports, , .] it will be perceived that the argument here was that the florida court did not exercise any of the judicial power of the united states because it could not, and that it could not because the judges were not commissioned for life. this left unanswered the deeper question whether any act of congress could serve to support a court existing under authority of the united states, the judges of which were to hold office only for a term of years. it was assumed that the provision for a life tenure did not apply to the florida judges, because if it did the court would be illegally constituted. whether it was legally or illegally constituted was not discussed, except for the general reference to the power of congress to legislate for the territories and exercise the rights of sovereignty over territory newly acquired by contest or treaty. on this decision has been built up our present system of governing territorial dependencies at the will of congress.[footnote: mormon church _v._ united states, united states reports, , ; dorr _vs._ united states, united states reports, , .] marshall's was the last appointment made to the supreme bench from the federalist party. it was not many years before that party disappeared from the face of the earth. jefferson put three men there representing the other school of political doctrine,[footnote: among jefferson's papers is a description of five men whom he especially considered with reference to filling the first vacancy which occurred during his administration. politics figures largely in the sketch of each. as to william johnson, whom he selected, it is noted that he is of "republican convictions and of good nerves in his political principles." american historical review, iii, .] and his appointments were followed by others of a similar nature, until in , after mr. justice baldwin had taken his seat, it became evident that the nationalizing tendencies which the great chief justice from the beginning of the century had impressed upon its opinions were likely soon to cease. he apprehended himself that the court would come to decline jurisdiction in the cases ordinarily presented over writs of error to reverse the judgments of state courts.[footnote: proceedings: massachusetts historical society, d series, xiv, .] in the following year he thought seriously of resigning. he disliked, he wrote to mr. justice story, to leave him almost alone to represent the old school of thought, but he adds, "the solemn convictions of my judgment, sustained by some pride of character, admonish me not to hazard the disgrace of continuing in office a mere inefficient pageant."[footnote: proceedings massachusetts historical society, d series, xiv, .] the next chief justice, while far from being of marshall's school, was not one to attempt to overthrow what he had done. in ableman _v._ booth,[footnote: howard's reports, .] he insisted on the supremacy of the courts of the united states over those of the states with the utmost firmness, and defended the doctrine on principle with force and ability. the supreme court, however, under taney, was not looked on with much favor by the survivors of the old federalists. "i do not," wrote chancellor kent in to justice story, "regard their decisions (yours always excepted) with much reverence, and for a number of the associates i feel habitual scorn and contempt."[footnote: proceedings of the massachusetts historical society, d series, xiv, .] our state constitutions generally guarantee the citizen against deprivation of his rights without "due process of law" or "due course of law." a similar provision was made for the united states by the fifth amendment to their constitution, and since the fourteenth amendment has established the same rule inflexibly for every state. what is due process of law? it is for the courts to say, and while they have cautiously refrained from assuming to give any precise and exhaustive definition, they have, in many instances, enforced the guaranty at the cost of declaring some statute which they held incompatible with it to be no law. they have also, and much more frequently, supported some act of government claimed to contravene it, and which, according to the ancient common law of england, would contravene it, because in their opinion this ancient law had been outgrown. sir edward coke, whom no expounder of the english common law outranks in authority, in his "institutes," in treating of _magna charta_, referred to the phrase _per legem terrae_, as equivalent to "by the law of the land (that is, to speak it once for all) by the due course and process of law." it is incontestable that due course and process of law in england at the time when the american colonies were planted was understood to require the action of a grand jury before any one could be put on trial for a felony. some of our states have abolished grand juries in whole or part. to review a capital sentence for murder in one of these states, a writ of error was prayed out from the supreme court of the united states in . the constitutionality of the state law was sustained. in disposing of the case the court did not controvert the position that by the english common law no man could be tried for murder unless on a presentment or indictment proceeding from a grand jury. but, said the opinion, while that is due process of law which had the sanction of settled usage, both in england and in this country, at the time when our early american constitutions were adopted in the eighteenth century, it by no means follows that nothing else can be. to hold that every feature of such procedure "is essential to due process of law would be to deny every quality of the law but its age, and to render it incapable of progress or improvement. it would be to stamp upon our jurisprudence the unchangeableness attributed to the laws of the medes and persians.... it is most consonant to the true philosophy of our historical legal institutions to say that the spirit of personal liberty and individual right, which they embodied, was preserved and developed by a progressive growth and wise adaptation to new circumstances and situations of the forms and processes found fit to give, from time to time, new expression and greater effect to modern ideas of self-government.... it follows that any legal proceeding enforced by public authority, whether sanctioned by age and custom or newly devised in the discretion of the legislative power in furtherance of the general public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law."[footnote: hurtado _v._ california, united states reports, , , , , .] many of our state constitutions specify certain rights as inherent and indefeasible, and among them that "of acquiring, possessing, and protecting property." what is property? american courts have said that it includes the right of every one to work for others at such wages as he may choose to accept. one of them, in supporting a decree for an injunction against combined action by a labor union to deprive non-union men of a chance to work, by force or intimidation, notwithstanding a statute abrogating the common law rule making such acts a criminal conspiracy, has put it thus: the right to the free use of his hands is the workman's property, as much as the rich man's right to the undisturbed income from his factory, houses, and lands. by his work he earns present subsistence for himself and family. his savings may result in accumulations which will make him as rich in houses and lands as his employer. this right of acquiring property is an inherent, indefeasible right of the workman. to exercise it, he must have the unrestricted privilege of working for such employer as he chooses, at such wages as he chooses to accept. this is one of the rights guaranteed to him by our declaration of rights. it is a right of which the legislature cannot deprive him, one which the law of no trades union can take from him, and one which it is the bounden duty of the courts to protect. the one most concerned in jealously maintaining this freedom is the workman himself.[footnote: erdman _v._ mitchell, pennsylvania state reports, ; atlantic reporter, .] but, as already suggested in the preceding chapter, the judges whose opinions have vitalized and enlarged our written law by reading into it some new meaning or application have but echoed the voice of the bar. the greatest achievements of marshall in this direction were really but a statement of his approbation of positions laid down before him by daniel webster. in the early stages of the dartmouth college case, when it was before the state courts in new hampshire, it was webster and his associates, jeremiah mason and jeremiah smith, both lawyers of the highest rank, who first put forward the doctrine that the charter of a private corporation was a contract; and when the cause came before the supreme court of the united states it fell to the lot of webster to bring it to the attention of the great chief justice.[footnote: "works of daniel webster," v, .] so in the florida case it was he, in supporting the cause of the prevailing party, who suggested that the territory of florida, though owned by the united states, was no part of them. "by the law of england," he went on to say, "when possession is taken of territories, the king, _jure corona_, has the power of legislation until parliament shall interfere. congress have the _jus corona_ in this case, and florida was to be governed by congress as she thought proper."[footnote: american insurance co. _v._ canter, peters' reports, , .] this argument did not spend its force in its effect on marshall. when, after the lapse of two generations, greater problems of the relations of the united states to territory newly acquired from spain arose, it was, as has been said above, made one of the cornerstones of the opinion of the same court which determined what they were.[footnote: downes _v._ bidwell, united states reports, , .] so in the hurtado case, which has been described at length, no description of due process of law was found better and none is better than that given by webster so many years before in the dartmouth college case. the supreme court of new hampshire, from whose judgment that cause came up by writ of error, had held--and on that point its decision was final--that the change in the college charter was no violation of the bill of rights embodied in the constitution of that state. this, following _magna charta_, provided (part i, art. ) that no subject should be "despoiled or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty or estate, but by the judgment of his peers or the law of the land." _magna charta_ was wrung from a tyrant king. so, said the state court, this article was inserted to protect the citizens against the abuse of the executive power. when it speaks of the law of the land it means the law of new hampshire, and that is whatever the legislature of new hampshire chooses to enact, so long as it contravenes no other constitutional provision. webster, in paving the way toward his claim that the charter was a contract, and, as a vested right of property, inviolable by a state, alluded to the sacredness of all rights under the guaranties to be found in our american system of constitutional government. it was not surprising that the constitution of the united states should protect them in the way he asserted. all the states, and new hampshire among them, had done the same in placing the great features of _magna charta_ in their bills of rights. what, he asked, was this law of the land by which all things were to be tried and judged? this was his answer: "by the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. the meaning is that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society. everything which may pass under the form of an enactment is not therefore to be considered the law of the land. if this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man's estate to another, legislative judgments, decrees and forfeitures in all possible forms, would be the law of the land."[footnote: "works of daniel webster," v, .] in the opinion by mr. justice mathews in hurtado _v._ california he observes: "it is not every act, legislative in form, that is law. law is something more than mere will exerted as an act of power. it must be not a special rule for a particular person or a particular case, but, in the language of mr. webster, in his familiar definition, 'the general law, a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial,' so 'that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society.'" [footnote: hurtado _v._ california, united states reports, , .] other instances might be mentioned, equally conspicuous, which will entitle webster to the name given him by his contemporaries of "the expounder of the constitution."[footnote: see article by everett p. wheeler on constitutional law of the united states as moulded by daniel webster, in yale law journal, vol. xiii, p. , and in the th annual report of the new york state bar association.] no one american lawyer has done as much in that direction, but there are few of the greater ones who have not done something. as, however, the glory of a battle won is for the commander of the victorious forces, so the glory of adding a new meaning to a constitution at a vital point is, with the public, always for the judge whose opinion is the first to announce it. who announced it to him they never know or soon forget. the acknowledged possession by the judiciary of the power to interpret written law, and thus to delimit its effect, has led to a serious abuse in our methods of legislation. statutes are often favorably reported and enacted, both in congress and the state legislatures, which are admitted to be either of doubtful constitutionality or to contain expressions of doubtful meaning, on the plea that those are questions for the courts to settle. this has been aptly termed the method of the "_referendum_ to the courts in legislation."[footnote: thomas thacher, address before the state bar association of new jersey, .] it is unfair to them, so far as any question of the constitution is concerned, since as soon as the measure is enacted a presumption arises that it is not unconstitutional. the courts will not hold otherwise without strong grounds. it comes to them with the benefit of a full legislative endorsement. it is unfair to the people, both as to questions of constitutionality and of interpretation. a statute can be so drawn as to need no interpretation, or none the outcome of which can be a matter of doubt to any competent lawyer. a legislature abandons its function when it enacts what it does not understand. the sherman anti-trust act is an instance of legislation of this character. it forbids contracts "in restraint of trade or commerce" between the states. when the bill was reported it was objected in the house of representatives that these terms were vague and uncertain. the chairman of the committee himself stated that just what contracts will be in restraint of such commerce would not and could not be known until the courts had construed and interpreted the phrase. the real intent of those who inserted it was that it should not embrace contracts which were reasonable and not contrary to public policy. a similar term in the english railway and canals traffic act had received that interpretation in the english courts, and they supposed that our courts would follow those precedents.[footnote: george f. hoar, "autobiography," ii, .] the supreme court of the united states did construe it as embracing all contracts in restraint of inter-state trade, whether reasonable or unreasonable, fair or unfair.[footnote: united states _v._ joint traffic association, united states reports, , .] one of the justices who concurred in that opinion, in a subsequent case arising under the same statute intimated that on reconsideration he thought the view that had been thus adopted was wrong.[footnote: northern securities co. _v._ united states, united states reports, , .] the addition by those who drafted the bill of three or four words to make their intended meaning clear would have avoided a result unexpected by them and probably undesired, and relieved the court from deciding questions of doubtful construction involving important political considerations and immense pecuniary interests. * * * * * chapter vii the judicial power of declaring what has the form of law not to be law government is a device for applying the power of all to secure the rights of each. any government is good in which they are thus effectually secured. that government is best in which they are so secured with the least show of force. it is not too much to say that this result has been worked out in practice most effectually by the american judiciary through its mode of enforcing written constitutions. how far it has gone in developing their meaning and building upon the foundations which they furnish has been made the subject of discussion in the preceding chapter. it remains to consider its office of adjudging statutes which come in conflict with their meaning, as thus determined, to be void. the idea of a supreme authority exercising the function of setting aside acts of legislative bodies which it deemed inconsistent with a higher law was familiar to americans from an early period of our colonial history.[footnote: see chap. i; dicey, "law of the constitution," ; "two centuries growth of american law," , .] the charter of each colony served the office of a constitution. the lords of trade and plantations exercised the power of enforcing its observance. they did in effect what, as the colonies passed into independent states with written constitutions, naturally became the function of their own courts of last resort. the constitution, like the charter, was the supreme law of the land. whatever statutes the legislature of a state might pass, it passed as the constitutional representative of the people of that state. it was not made their plenary representative. every constitution contained some provisions restricting the legislative power. if any particular legislative action transgressed these restrictions, it necessarily went beyond the authority of the body from which it emanated. the judicial committee of the privy council, which now exercises the functions formerly belonging to the lords of trade and plantations, and is in fact the same body, deals in a similar way today with questions of a constitutional character. if one of the provinces included in the dominion of canada should in its local legislation infringe upon a field belonging to the dominion parliament, this committee can "humbly advise the king" that the act in question is for that reason void.[footnote: in july, , for instance, an act of the province of ontario, entitled the "lord's day profanation act," was thus declared _ultra vires_.] the revolution found the new-made states of the union without this safeguard against a statute repugnant to a higher law. they had enjoyed as colonies the advantage which burke declared was an ideal in government. "the supreme authority," he said, "ought to make its judicature, as it were, something exterior to the state." the supreme judicature for america had been in england. there was now no king in council with power to set a statute aside forthwith by an executive order. but the other function of the king in council, that of acting as a court of appeal from colonial judgments, had been simply transferred to new hands. the state into which the colony had been converted now exercised it for itself and through her judiciary. the judgment of a court is the legal conclusion from certain facts. unless it is a legal conclusion from the facts on which it purports to rest it is erroneous, and, if there is any higher court of appeal, can be reversed. if such a judgment depends upon a statute which justifies or forbids the act or omission which constituted the cause of action, it is legal or illegal according as this statute is or is not law. it cannot be law if its provisions contravene rules laid down by the constitution of the state to restrict the legislative power. the court which tries the cause must meet this question whenever it arises like any other and decide it. a court of law must be governed by law. what has the form of law is not law, in a country governed by a written constitution, unless it is consistent with all which that instrument provides. the first decision of an american court bottomed on these principles was probably rendered as early as , and in new jersey.[footnote: holmes _v._ walton, iv _american historical review_, .] one of her greatest statesmen, who after taking a distinguished part in framing the federal constitution became a justice of the supreme court of the united states, vigorously enforced the same doctrine on the circuit fifteen years later in trying a cause turning on the unconstitutionally of a confirming act passed by the legislature of pennsylvania. "i take it," justice patterson said in charging the jury, "to be a clear position that if a legislative act oppugns a constitutional principle the former must give way and be rejected on the score of repugnance. i hold it to be a position equally clear and sound that in such case it will be the duty of the court to adhere to the constitution, and to declare the act null and void."[footnote: vanhorne's lessee _v._ dorrance, dallas' reports, , , .] the accession of the republicans to power in , only to find the courts of the country controlled by judges appointed from the ranks of the federalists, was the occasion of new attacks upon the doctrine thus laid down. it was vigorously denied by senator breckenridge of kentucky, afterward attorney-general of the united states, in the debates preceding the repeal of the judiciary act of .[footnote: elliot's debates, iv, .] a year later (in ) the question came for the first time before the supreme court of the united states, and the same positions advanced by patterson were taken in what is known as the leading case upon this subject by chief justice marshall.[footnote: marbury _v._ madison, i cranch's reports, . see willoughby, "the american constitutional system," .] it was unfortunate that the action was one involving a matter of practical politics, in which the plaintiff sought the benefit of a commission the issue of which had been directed by president adams at the close of his term, but which was withheld by the secretary of state under president jefferson. party feeling ran high at this time. the views of breckenridge were shared by many, and the supremacy of the judicial department, which this prerogative, if it possessed it, seemed to imply, was distasteful to a large part of the people. an eminent judge of a state court, chief justice gibson of pennsylvania, as late as , in a dissenting opinion, combated at length the reasoning of marshall as weak and inconclusive. if, he said, the judiciary had the power claimed, it would be a political power. our judicial system was patterned after that of england. our judges had, as such, no power not given by the common law. it was conceded that english judges could not hold an act of parliament void because it departed from the british constitution. no more could american judges hold an act of a state legislature void because it departed from the state constitution, unless that constitution in plain terms gave them such a power. the constitution of the united states did give it, political though it was, to all judges (art. xi, sec. ), and a state statute which was contrary to that constitution might therefore properly be declared void by the courts.[footnote: eakin _v._ raub, sergeant and rawle's reports, .] later in his judicial career gibson abandoned this position, [footnote: norris _v._ clymer, pennsylvania state reports, .] and the ground taken by marshall has been since universally accepted. the last official attack upon it was made in , at the time when the feeling against protective tariffs was strong in the south, and south carolina was known to be meditating opposition to their enforcement. the judiciary committee of the house of representatives reported a bill to repeal the section of the judiciary act which gave the supreme court of the united states the right to reverse judgments of state courts that it might deem contrary to the constitution of the united states. the report said that such a grant was unwarranted by the constitution and "a much greater outrage upon the fundamental principles of theoretical and practical liberty as established here than the odious writ of _quo warranto_ as it was used in england by a tyrannical king to destroy the right of corporations." the house, however, rejected the bill by a very large majority. a proper regard for the coordination of the departments of government forbids courts to declare that a statute is inconsistent with the constitution unless the inconsistency is plain. it has been judicially asserted that it must be plain beyond a reasonable doubt, thus applying a rule of evidence which governs the disposition of a criminal cause. as judgments declaring a statute inconsistent are often rendered by a divided court, this position seems practically untenable. the majority must concede that there is a reasonable doubt whether the statute may not be consistent with the constitution, since some of their associates either must have such a doubt, or go further and hold that there is no inconsistency between the two documents. this right of a court to set itself up against a legislature, and of a court of one sovereign to set itself up against the legislature of another sovereign, is something which no other country in the world would tolerate. it rests on solid reason, but as the due de noailles has said, "un semblable raisonnement ne ferait pas fortune aupres des républicans d'europe, fort chatouilleux sur le chapitre de la puissance législative. c'est que la notion de l'Ã�tat diffère d'une façon essentielle sur les deux rives de l'atlantique."[footnote: cent ans de république aux Ã�tats-unis, ii, .] our people have been satisfied with the interposition of the courts to defend their constitutions from executive or legislative attack, because these constitutions stand for something in which they thoroughly believe. president hadley has well said that "a written constitution serves much the same purpose in public law which a fence serves in the definition and protection of private rights to real estate. a fence does not make a boundary; it marks one. if it is set where a boundary line has previously existed by tradition and agreement, it forms an exceedingly convenient means of defending it against encroachments. if it is set near the boundary and allowed to stay there unchallenged, it may in time become itself the accepted boundary. but if the attempt is made to establish a factitious boundary by the mere act of setting up a fence the effort fails."[footnote: freedom and responsibility, .] americans took principles and institutions with which they had become familiar in colonial days and made their constitutions out of them. their attachment to what the constitution provides goes behind the constitution to the rock of ancient custom and precedent on which it rests, the common heritage of all the states. there is an obvious reason for the unwillingness of the judiciary to exercise the power under consideration unless in case of necessity. the legislature presumably does only what the public sentiment of the day justifies or demands. one branch of it, at least, is the direct representative of the people. to defeat the operation of a statute is therefore always presumably an unpopular thing to do, and if in any case there is known to be truth behind the presumption, it requires, as the federalist [footnote: no. lxxviii.] put it, "an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the constitution." it is seldom that an inferior court declares a statute void. the mere fact that it was enacted by the legislature imports the opinion of that body that it was within its powers; and such an opinion of a department of government is entitled to great respect. if a different, opinion is to prevail, it should ordinarily be first pronounced by the highest authority that can speak for the judicial department. so far, however, as the question of power or jurisdiction is concerned, a justice of the peace, in trying a five-dollar case, has the same authority to disregard a statute, whether it be one enacted by the state legislature or by congress, if he deems it unconstitutional, which belongs to the full bench of the supreme court of the united states. if he is wrong, the only remedy is by appeal. the number of statutes which have been judicially pronounced in whole or part invalid in the united states is very large. among the acts of congress which have fallen in this manner and have been made the subject of elaborate opinions may be mentioned the provision in the original judiciary act giving the supreme court of the united states greater original jurisdiction than the constitution provided;[footnote: marbury _v._ madison, i cranch's reports, .] the act of , excluding from practice in the united states courts attorneys who could not take the "iron-clad oath" that they had not supported the south in the civil war;[footnote: _ex parte_ garland, wallace's reports, .] the legal tender act of ;[footnote: hepburn _v._ griswold, wallace's reports, , overruled in the legal tender cases, wallace's reports, .] the act of , to protect the colored voter;[footnote: united states _v._ reese, u. s. reports, .] the civil rights act of ;[footnote: united states _v._ stanley, u. s. reports, .] the trade mark act of ,[footnote: the trade mark cases, u. s. reports, .] and the income tax act of .[footnote: pollock _v._ farmers' loan and trust co., u. s. reports, .] fifteen others of less importance have fallen by the same sword. the supreme court of the united states has also set aside in the same manner, as inconsistent with the constitution of the united states, over two hundred statutes passed by states. of the twenty-one acts of congress thus declared unconstitutional, the decisions as to all but two were rendered after ; of the state statutes all but twenty-six.[footnote: condensed reports supreme court (peters' ed.), . note a; see also u. s. reports, ccxxxv.] the fourteenth amendment has added largely to the list of the latter since its adoption in . state statutes set aside by the state courts since as in violation of their respective state constitutions number thousands. in the year from october , , to october , , the legislatures of forty-four states and fully organized territories of the united states were in session and nearly , new statutes were enacted. during the same year fifty state statutes were declared in whole or part unconstitutional by courts of last resort. three of these decisions were rendered by the supreme court of the united states. five statutes of missouri and as many of indiana were thus set aside; three each of california, kansas and ohio; two each of florida, illinois, mississippi, montana, nebraska, new york, oregon and wisconsin, and one each of those of kentucky, maine, michigan, minnesota, new jersey, georgia, south carolina, south dakota, tennessee, texas, vermont, washington and west virginia.[footnote: bulletin no. , new york state library, "comparative summary and index of legislation, ," , .] on the average probably as many as one statute out of every three hundred that are enacted from year to year are thus judicially annulled. the declaration by a court that a statute is unconstitutional and void is only a step in a cause. in the judgment it may not be found necessary or proper even to allude to it. but the order of the court which the judgment contains must be executed precisely as if no such statute had ever been enacted. it may, in effect, be directed against the state whose statute is pronounced void if the plaintiff complains of action taken under it which has deprived him of property and put it in the hands of public officers, or seeks a remedy to prevent a threatened wrong. the state of ohio in passed a statute reciting that a branch of the united states bank was transacting business there contrary to the law of the state, and imposing a tax upon it, in case it continued to do so, of $ , a year, to be collected by the auditor and paid over to the treasurer. the auditor subsequently sent a man to the bank who forcibly seized and carried off $ , in specie. this was given to the state treasurer, who kept it in the treasury in a trunk by itself. the bank sued all three for the money in the circuit court, setting forth all these proceedings at length. judgment went against them and, with a slight modification, was affirmed by the supreme court of the united states. it was held by marshall in giving the opinion that the statute was void; that the money had never become mingled with the funds of the state; and that they were liable for it precisely as if they were private individuals who had wrongfully seized it.[footnote: osborn _v._ bank of the united states, wheaton's reports, .] these proceedings awakened great feeling in ohio, and became the subject of much criticism throughout the country by those adhering to the democratic party. the legislature of ohio adopted resolutions denouncing them as unauthorized by the constitution of the united states, and directed the governor to forward a copy to the legislature of every other state with a request for its opinion on the subject. the replies varied in tone according to the political predilections of the party then in control of the state addressed. still closer does a court come to collision with the political sovereignty of the state when it commands a public officer to do something in violation of a statute which it pronounces void, or not to do something which such a statute requires. a striking instance of this is furnished by the power to nullify legislative gerrymanders. the constitutions of almost every state provide that it shall be districted from time to time by the legislature for the purpose of electing certain officers or local representatives, and that this shall be so done as to make the districts as nearly equal in population as conveniently may be, and composed of contiguous territory. if a legislature undertakes to construct districts by any other rule, the courts can compel those charged with the conduct of elections to disregard it and to hold them according to the districts previously established under the former law.[footnote: state _v._ cunningham, wis., ; northwestern reporter, ; lawyers' reports annotated, ; american state reports, ; board of supervisors _v._ blacker, michigan reports, ; northwestern reporter, ; lawyers' reports annotated, brooks _v._ state indiana reports; northeastern reporter, .] but however necessary may be the conclusion from the premises, it can hardly be agreeable to the authors of a law which it serves to destroy. in effect, though not in theory, it subordinates one department of government to another. the practical result is to give the judiciary a superior power to the legislature in determining what laws the latter can enact. it is not a right of veto, but in a case which calls for its exercise it is an equal right exercised in a different way. in the first instance of a resort to it[footnote: see p. .] the section of the new jersey constitution of confirming the right of trial by jury was held by the full bench of the supreme court to render a statute void which authorized a trial without appeal before a jury of six, on a proceeding for the forfeiture of goods brought in from british territory or the british military lines. this was an unwelcome decision to many who were interested in such seizures, and they sent in several petitions to the legislature for redress. no action criticising the judges, however, was taken by that body. four years later the mayor's court of new york, in the case of rutgers _v._ waddington, held that an act of the legislature of that state, if given the effect which it was plainly intended to secure, would be contrary to the constitution of the state, and therefore allowed it so limited an operation as virtually to annul it. the legislature retorted by resolutions of censure.[footnote: hunt, "life of edward livingston," - .] what was probably the second instance of the actual use of the power in question arose in , out of a statute of rhode island passed to support the credit of her paper money of that year's issue. any one declining to receive it in payment for goods sold at par was to be liable to a _qui tum_ action, to be tried without a jury. counsel for a man sued in such a proceeding put in a plea that the act was unconstitutional and so void.[footnote: trevett _v._ weeden. see coxe, "judicial power and unconstitutional legislation," , .] the court, which was composed of five judges, threw out the action on this ground, treating the charter from charles ii and the long usage under it as having established trial by jury as a fundamental and indefeasible right. the general assembly shortly afterward summoned the judges before it to account for this judgment. they appeared and stated their reasons for their conclusion, protesting also against the adoption of any resolution for their removal from office (which had been suggested) until after a formal trial. they were not impeached, but at the ensuing session, their terms of office having expired, the assembly chose others in their place. not far from the same time the supreme judicial court of massachusetts pronounced a statute unconstitutional, but there the legislature displayed no feeling, and at the next session unanimously repealed it.[footnote: this, no doubt, was one of the instances of the exercise of this power referred to by elbridge gerry in the federal convention of . elliot's debates, v, . it is described in proceedings massachusetts historical society, xvii, .] in , judge calvin pease of the ohio circuit court was impeached for holding a law of ohio unconstitutional. he avowed the act, and insisted that as it was a judicial one the soundness or unsoundness of his conclusions could not be inquired into as a ground of impeachment. the result was an acquittal.[footnote: foster, "commentaries on the constitution of the united states," i, .] georgia was the only one of the original states which set up no supreme court at the beginning of its statehood. her constitution established (art. iii, sec. ) a superior court, and left it to the general assembly to give it, if they thought best, appellate jurisdiction. the judges were subsequently by statute authorized to sit _in banc_ and hear appeals. in , while so sitting, they declared a certain statute of the state unconstitutional and void. the legislature showed its resentment by a set of resolutions, of which the parts material in this connection read thus: whereas, john mcpherson berrien, robert walker, young gresham and stephen w. harris, judges of the superior court, did, on the th day of january, , assemble themselves together in the city of augusta, pretending to be in legal convention, and assuming to themselves ... the power to determine on the constitutionality of laws passed by the general assembly, and did declare certain acts of the legislature to be unconstitutional and void; and ... the extraordinary power of determining upon the constitutionality of acts of the state legislature, if yielded by the general assembly whilst it is not given by the constitution or laws of the state, would be an abandonment of the dearest rights and liberties of the people, which we, their representatives, are bound to guard and protect inviolate; be it therefore resolved, that the members of this general assembly view, with deep concern and regret, the aforesaid conduct of the said judges ... and they can not refrain from an expression of their entire disapprobation of the power assumed by them of determining upon the constitutionality of laws regularly passed by the general assembly, as prescribed by the constitution of this state; we do, therefore, solemnly declare and protest against the aforesaid assumption of powers, as exercised by the said judges, and we do, with heartfelt sensibility, deprecate the serious and distressing consequences which followed such decision; yet we forbear to look with severity on the past, in consequence of judicial precedents, calculated in some measure to extenuate the conduct of the judges, and hope that for the future this explicit expression of public opinion will be obeyed. in a case was argued before the supreme court of the united states involving the validity of a kentucky statute passed to protect occupants of land who had made valuable improvements upon it in good faith, in case it should be subsequently proved to belong to some one else. the occupant had employed no lawyer, and it was surmised that the court would decide against him. the governor of kentucky called the attention of the legislature to this, and advised the employment of counsel to defend the law. the legislature responded by resolving "that they consider an adjudication, that the laws in question are void, incompatible with the constitutional powers of this state, and highly injurious to the best interests of the people; and therefore do, in the name of the commonwealth of kentucky, and the good people thereof, solemnly remonstrate and protest against any such adjudication," but that two commissioners should be appointed "to attend the supreme court of the united states at the next term and oppose any decision that may be attempted to be procured from the supreme court, that those laws are void in such manner as they may deem most respectful to the court and most consistent with the dignity of this state."[footnote: niles' register, xxi, , , .] the case had already been heard _ex parte_, and the court soon proceeded to give judgment that the statute in question was void. the kentucky commissioners employed counsel, who moved for a reargument, and obtained one, but with the same result.[footnote: green _v._ biddle, wheaton's reports, .] the legislature at its next session discussed the opinion in the case and resolved "that they do most solemnly protest against the doctrines promulgated in that decision as ruinous in their practical effects to the good people of this commonwealth and subversive of their dearest and most valuable political rights."[footnote: niles' register, xxv, .] they then took up two decisions of their own court of appeals, declaring other statutes of the state unconstitutional and void, and resolved "that in the opinion of this legislature the decision of the court of appeals of kentucky in the cases of blair against williams[footnote: littell's kentucky reports, .] and lapsley against brashears[footnote: _ibid_., .] are erroneous, and the laws declared therein to be unconstitutional are, in the opinion of this present general assembly, constitutional and valid acts."[footnote: niles' register, xxv, .] the next step was to endeavor to remove the judges, but the two-thirds vote required by the constitution to support an address to the governor for that purpose could not be secured. at the next session, in , the judges were summoned to show cause why they should not be removed. they defended their conclusions so well that the two-thirds vote of each house required by the constitution could not be obtained. by a majority vote the court was then abolished, a new one set up by the same name, and four new judges appointed. the old court refused to recognize the validity of their proceedings. the new one assumed to organize and to do business. at the next election the question which court ought to be recognized was the dominant one. the result was that the friends of the old court gained control of the house and those of the new court that of the senate, one of them being also chosen as the governor. the new court now got possession of most of the papers of the old court. the latter ordered their sergeant to bring them back. the governor made preparations to use military force to resist the execution of this order. at last, in , an act was passed (session laws, p. ) over the governor's veto, declaring the acts abolishing the old court unconstitutional and void. the governor thereupon appointed a warm champion of the new court chief justice of the old one to fill a vacancy which had occurred on that bench, and for the first time for two years the judicial establishment of the state was on a proper footing.[footnote: niles' register, xxxi, ; mcmaster "history of the people of the united states," v, - ; "the old and the new court, in the green bag," xvi, .] meanwhile both courts had been sitting and disposing of cases. new appeals from the inferior courts had been entered in the one which the appellant's counsel thought most likely to stand as the rightful authority. the judges of the inferior courts were in despair when the mandates of the court of appeals came down, and they were called upon to determine whether to obey them. some held that the new court was a _de facto court_, and to be respected accordingly. the ultimate decision fell to the old court, which, after the repealing act of , held that there could be no such thing as a _de facto_ court of appeals so long as civil government was maintained and the _de jure_ court was in the exercise of its functions.[footnote: hildreth's heirs _v._ m'intire's devisee, , j. j. marshall's kentucky reports, .] the same spirit of jealousy still occasionally manifests itself in a less outspoken but more effective fashion. if a question of political importance is likely to come before a court, it may be within the power of the legislature to prevent it by a change in its statutory jurisdiction. in this way the supreme court of the united states was kept from passing on the validity of the reconstruction acts enacted by congress at the close of the civil war, in a case which was actually pending. under these acts a mississippi newspaper editor was arrested in by military order on account of an article which he had published reflecting on the policy of the government, and held for trial before a military commission. he appealed to the circuit court of the united states for the district of mississippi for discharge on a writ of _habeas corpus_. judgment went against him, and he appealed to the supreme court of the united states. the court, on august , held that it had jurisdiction to review the decision and to decide whether he could be tried before such a commission.[footnote: _ex parte_ mccardle, wallace's reports, , .] the cause was then heard on its merits and all the questions involved discussed at length, four days being devoted to it. congress apprehended a decision that the reconstruction acts were unconstitutional, and before one was arrived at, during the same month, passed an act repealing the right of appeal in such cases from the circuit court. the purpose of this was obvious, but it was none the less effective, and the court, without deciding the case, dismissed it for want of jurisdiction.[footnote: _ex parte_ mccardle, wallace's reports, .] a legislature whose work has been set aside by the courts as unconstitutional sometimes asks, in effect, for a reconsideration of the question by passing another law substantially of the same nature, although expressed in somewhat different terms. this is oftenest done when the decision was made by a divided court or is contrary to the weight of judicial opinion in other states. early in the history of california, for instance, a statute was passed making it a misdemeanor to keep open any store, shop or factory, or to sell goods, on sunday. the supreme court of the state held this to be contrary to the provisions in her constitution that all men had the inalienable right of acquiring property, and that the free exercise of religious profession should be allowed without discrimination or preference. most of the other states had similar statutes, and their courts had supported their validity. judge stephen j. field, then on the california bench, dissented in a vigorous opinion.[footnote: _ex parte_ newman, california reports, .] three years later the legislature, unconvinced by the reasoning of the majority of his associates, passed a new sunday law, which did not differ materially from the other, and after a few months the court overruled their former decision, on the very ground taken by judge field.[footnote: _ex parte_ andrews, california reports, .] any dissent from a judgment setting aside a statute greatly weakens its force. it has also much less claim to public confidence if all the judges on the bench did not participate in it. in , the court of appeals of kentucky declined to follow a decision of the supreme court of the united states, which held certain statutes of kentucky to be contrary to the constitution of the united states.[footnote: green _v._ biddle, wheaton's reports, .] the reason stated for this was that the decision was not concurred in by a majority of the court. it had been made by a majority of a quorum, but not by a majority of the whole court.[footnote: bodley _v._ gaither, monroe's kentucky reports, .] after this it became the practice of the supreme court under chief justice marshall not to give judgment in any case involving constitutional questions, unless a majority of the court concurred in opinion in regard to these.[footnote: new york _v._ miln, peters' reports, , .] several american courts have asserted the doctrine that the judiciary can disregard a statute which plainly violates the fundamental principles of natural justice, although it may not contravene any particular constitutional provisions. the english courts now claim no such power, although sir edward coke, in one of his discursive opinions, very little of which was necessary for the determination of the cause, asserted that an act of parliament "against common right and reason" could be adjudged void at common law.[footnote: dr. bonham's case, coke's reports, , .] so far as there was any previous judicial authority for this position, however, it is believed that it can only be found in decisions made before the reformation, on questions arising from interference by parliament with rights claimed under the church of rome. such questions were of the nature of those arising under a written constitution. the law of the church within its province was then accepted as a supreme law.[footnote: coxe, "judicial power and unconstitutional legislation,"' , _et seq_.] the rule laid down by sir edward coke was accepted by the supreme court of south carolina in two early cases,[footnote: ham _v._ m'claws, bay's reports, ; bowman _v._ middleton, _ibid_., .] and has been substantially repeated in some judicial opinions in other states.[footnote: see goshen _v._ stonington, connecticut reports, , , and regents _v._ williams, gill & johnson's reports, , american decisions, .] in the supreme court of the united states its authority was emphatically denied by mr. justice iredell, near the close of the eighteenth century,[footnote: calder _v._ bull, dallas' reports, , .] but in the full court only one member dissenting, held a state statute void which authorized cities to issue bonds in aid of private manufacturing enterprises, because they could only be discharged by taxation, and to tax for such a purpose would be taking property from all for the good of one. that, said mr. justice miller in delivering the opinion, "is none the less a robbery because it is done under the forms of law and is called taxation. this is not legislation. it is a decree under legislative form."[footnote: loan association _v._ topeka, wallace's reports, , ; approved in parkersburg _v._ brown, u. s. reports, , .] this view of the law had been forcibly, though tentatively, put shortly after he came to the bench by chief justice marshall in a leading case,[footnote: fletcher _v._ peck, cranch's reports, .] but one in which it was not necessary to decide whether the doctrine was sound. "it may well be doubted," he observed, "whether the nature of society and of government does not prescribe some limits to the legislative power; and, if any be prescribed, where are they to be found, if the property of an individual, fairly and honestly acquired, may be seized without compensation? to the legislature all legislative power is granted; but the question whether the act of transferring the property of an individual to the public be in the nature of the legislative power is well worthy of serious reflection." the weight of american authority is in favor of the position taken by iredell.[footnote: cooley's "constitutional limitations," chap, vii; state _v._ travelers' insurance co., connecticut reports, , ; atlantic reporter, ; lawyers' reports annotated, .] time has made it safer to stand upon it, for since he spoke not only have our state constitutions been generally expanded by adding important restrictions on the legislative power, but the fourteenth amendment has added to the constitution of the united states a prohibition of state laws depriving any person of life, liberty, or property without due process of law. "due process of law" is an elastic term. requiring it certainly imports that no one is to be made to suffer in person or property unless he has had an opportunity to claim before an impartial tribunal the protection of his rights by the settled law of the land. the principle of roman law that, as custom can make law, so disuse can destroy it has never been adopted in the united states. no court, therefore, will pronounce a statute not to have the force of law on the ground that it is obsolete.[footnote: chief justice mason of iowa, in , undertook to import the doctrine into american jurisprudence, but without effect. hill _v._ smith, morris' reports, ; explained and limited in pearson _v._ international distillery, iowa reports, .] * * * * * part ii the organization and practical working of american courts * * * * * chapter viii the organization of the courts of the states the state constitutions differ fundamentally from that of the united states in respect to the nature of the judicial establishment. each of the states possesses all judicial powers belonging to any sovereignty, except so far as the people of the united states may have provided otherwise in the constitution of the united states. the state constitutions do not define those powers. they simply commit them to certain courts and officers. their general language is that the judicial power is vested in a supreme court and such other inferior courts as may be created by law. on the other hand, the constitution of the united states defines the judicial powers of the united states exactly and within a somewhat narrow range, investing the courts of the united states with those powers and no others. hence the states require a much more complicated and extensive judicial establishment than do the united states, for not only is the great mass of litigated cases throughout the country to be disposed of by state courts, but they must also pass upon by far the greatest variety of legal questions. in each state there is one appellate court of last resort[footnote: see chap. xix.] and several courts for the trial of original causes. local justices of the peace are commonly given jurisdiction over prosecutions for petty misdemeanors, and civil cases involving small amounts (seldom over $ or $ ), which do not affect title to land. then come county courts (often styled courts of common pleas or district courts), having cognizance of actions involving greater sums, and to which appeals from judgments of justices of the peace can be taken. these generally have both civil and criminal jurisdiction. a higher court, which may be styled a superior court, or circuit court, often exists, with unlimited jurisdiction as respects values in controversy, and also as to crimes, the county courts in such case having a limited jurisdiction in these respects. municipal courts are to be found in all considerable cities and in many of the lesser municipalities, such as towns and boroughs. city courts often have jurisdiction over civil causes to which one residing in the city is a party, or growing out of a transaction occurring within the city, irrespective of the amount of the matter in demand. they frequently have a criminal side, before which convictions may be had for petty misdemeanors, and those charged with higher offenses bound over for trial in some court of general criminal jurisdiction.[footnote: see goodnow, "city government in the united states," chap. ix.] for the settlement of the estates of deceased persons and the appointment and superintendence of guardians and similar agents of the law, and proceedings in insolvency, there are in many states special courts, known as courts of probate, surrogate's courts, or orphans' courts, and courts of insolvency. in others these functions belong to the county courts. the early practice in this country favored having several judges hold all trial courts, whether a jury was or was not to be called in. it was a method wasteful of time and money. in massachusetts it survived for their highest _nisi prius_ court until . in many states it endured much longer for county courts. county courts in some states are courts only in name, except, perhaps, for some very limited purposes. their real functions are administrative. some or all of those who hold them are often styled commissioners, and their principal duties are to manage the general business affairs of the county.[footnote: see constitution of west virginia, amendment of ; constitution of oregon, art. vii, sec. .] a statute passed by oregon in indicates that those in that state are not fountains of law, for it requires the district attorneys in each county, or their deputies, to advise the county courts "on all legal questions that may arise." in virginia, county courts for a long period were held by all the justices of the peace in the county, or such of them as might attend. these magistrates nominated their own successors to the governor, who almost never refused to commission the person so recommended. the court also nominated the officers of militia below the rank of general, and managed all the county affairs, besides having an extensive civil and criminal jurisdiction, including the power of acquittal in cases of felony. however clumsy and ill-ordered such a scheme appears, it gave general satisfaction for a long course of years, partly from a usage on the part of the older members of the bar who might be in attendance to volunteer advice as _"amci curiae"_ whenever any doubtful question of law chanced to arise.[footnote: tucker, "life of thomas jefferson," ii, ; kennedy, "memoirs of william wirt," i, .] even in states where county courts have jurisdiction of ordinary lawsuits the judges, or a majority of them, are sometimes without any legal training, though this is now less common than it once was.[footnote: mcmaster, "history of the people of the united states," iii, .] the constitutions of the states generally require the existence of a supreme court of last resort, and often specify also by name one or more of inferior jurisdiction. such courts stand on a firmer footing than those created by the legislature under a general power to establish inferior courts. the power to establish implies a power to limit and to destroy. a tribunal created by a constitution, with functions defined in the constitution, is, as to these and as to its independence of existence and action, beyond legislative control. the republicans in congress were within their rights when, in , they repealed the act passed by the federalists the year before to create a system of circuit courts. those of massachusetts were within theirs when, in , they abolished the ancient court of common pleas of that state and created a new "circuit court," with fifteen judges, to take its place. both would have been glad to go farther and reconstitute in some way the court of last resort, which was filled with old federalists. why they did not has been frankly stated by one of them in his account of governor gerry's administration: with the supreme judicial court the party did not interfere. in respect for the authority of the constitution this forbearance was observed; it having been conceded after due deliberation by men having the confidence of the dominant party that neither the court nor the judges were within the power of the legislature. the result was very reluctantly acceded to, for the imposing influence of that court had been felt in the political agitation of the times, and some of the judges, like some ministers of the gospel, had been unwise enough to give to the extension of their political feelings the aid directly derived from their official authority.[footnote: austin, "life of elbridge gerry," ii, . see chap. xxii.] the weakest point in this system of judicial organization is the vesting of jurisdiction of small civil causes in justices of the peace. of these there are generally several in each town, having jurisdiction over the whole county. some may be lawyers. none need be, and few are. any one of them can try cases. which of them shall try any particular case is left to be determined by the lawyer who brings it. justices of the peace can be trusted to dispose of petty criminal prosecutions and to conduct preliminary examinations into charges of any offence for the purpose of determining whether there is ground for holding the accused for trial before a jury, although even here mischief often results from their ignorance of law, and the sufferers have little means of redress.[footnote: see mcveigh _v._ ripley, connecticut reports, ; atlantic reporter, .] such prosecutions are brought by a public officer, who will not be apt to select an incompetent magistrate, and has no strong motive for choosing one specially likely to give judgment against the defendant. but in civil cases, for the lawyer who institutes them to pick out his judge at will from a number who are equally competent to assume jurisdiction, and at the same time (as is generally the law) are left wholly without salaries, receiving nothing except fees for cases actually brought before them, is to place the defendant in a much less favorable position than the plaintiff. if the justice decides in favor of the latter, he is obviously more likely to get the subsequent patronage of his lawyer. in most justice suits judgment does go for the plaintiff, and not infrequently it is to be feared that he gets it from that consideration. some justices rarely give any other judgment. many lawyers bring all their cases before one justice, and seldom fail of success. in , a justice of the peace in one of our largest cities resigned his office and made his reasons public. they were that no one could afford to hold it who was not willing to stoop to unworthy practices. lawyers having a large collection practice, who were the best customers at such a shop of justice, threw their business where they could get it done most cheaply. they expected the justice of the peace whom they favored to favor them. one way was by making them a discount on his legal fees. there was a competition among the justices for business on these terms, and the lowest bidder generally got it. blank writs of summons, even, signed by the justice would be sold at so much a dozen, to be filled in to suit the attorneys. a system in which such things are possible is inherently vicious, and only endurable because the defeated party can always appeal and have a new trial before a higher court. that relief, however, is expensive. judgments ought to be just in the first instance, and it is the business of governments to ensure this, so far as they reasonably can. the natural remedy would seem to be to have fewer justices of the peace who are authorized to try cases and to pay them a fixed salary. better men could thus be had and independence of action promoted. that this is not done comes mainly from the feeling that small controversies ought to be settled by a neighborhood court; that any man of good common sense can generally deal with them as well as a lawyer; and that to salary every justice would be an unreasonable burden to impose on the taxpayer. the system is also an ancient one; it works well with honest men; and the people have an inherited attachment for it. in a few states a sharp line of division is drawn between courts of law and courts of equity. this distinction was inherited from england, though it has been for most purposes abolished there by the judicature acts of and . it originated in the royal prerogative of interposing to do justice between private individuals in cases of an extraordinary character when the regular courts had no power to grant the necessary relief. the king was accustomed to refer requests for such action on his part to his principal secretary and councillor. the next step was to address the request directly to this officer, who was styled the chancellor. if a man were acting toward another in a way that was against good conscience, though without absolutely transgressing any settled rule of law, the chancellor could compel him to desist. if the legal title to land had been conveyed to one for the use of another, and the holder of this title refused to recognize the beneficial interest to serve which he had been invested with it, the chancellor could bring him to account, although the common law would give no remedy. soon, whenever a man seemed to have justice on his side, but not law, it was deemed a case for the chancellor, or a case in chancery. relief was given because it was equitable to give it, and so it was called relief in equity. the jurisdiction expanded. wherever there was a right, but no adequate remedy at law, the court of chancery, or, as it was oftener called, of equity, was recognized as competent to step in and do justice. the chancellor had often been an ecclesiastic. he was apt to be more familiar with canon law and civil law than with the common law. the justice which he administered came from the crown, not from the people. the people spoke through a jury, called in law language "the country." the chancellor spoke for himself. if he called in the aid of a jury, it was to advise him, not, as in a common law court, to make a final decision as to the question submitted to it. the result came to be that for several hundred years, embracing the whole colonial period, england had two distinct sets of courts, acting under different rules, and each trying a different kind of cases. those involving questions of trust, account, fraud, mistake or accident, were the principal subjects of equitable jurisdiction. equity also could prevent wrongs, while law could only punish them.[footnote: see chap. xx.] it was not, however, always easy to mark the line between cases, and say which belonged in the common law tribunals and which in those of chancery. many an action failed, not because there was no just cause of action, but because it had been brought in the wrong court. in the american colonies, and for many years in the states which succeeded them, these distinctions of procedure were generally observed.[footnote: in pennsylvania the courts largely disregarded them and asserted that equity was a part of its common law. see myers _v._ south bethlehem, pennsylvania state reports, , atlantic reporter, .] in some there were, in some there still are, separate courts of equity held by a chancellor, aided, if necessary, by vice-chancellors. in others two dockets or lists of cases were (and in a number of them still are) kept in the same court, and the same judge disposed of those on one docket as a court of equity and of those on the other as a court of law. such a system is intrinsically absurd. it has been maintained by whatever states yet tolerate it for two reasons: because the lawyers and the community are used to it, and because it furnishes a convenient test of any claim of right to a jury trial. all our state constitutions have some provision for maintaining such rights, but they do not define the cases in which the right exists. that is left to the courts, and their rule is that it cannot be claimed in cases that call for equitable as distinguished from legal relief. in most of our states and territories legal and equitable causes of action or defenses may now be joined, and legal and equitable relief given in one suit. this reform in procedure was largely due to the labors of david dudley field, and became general throughout the country during the last half of the nineteenth century. the result has been that separate courts of equity are now to be found only in a few states. congress has made use of the state courts in certain cases as part of the machinery of the federal government. while by the constitution "the judicial power of the united states" can only be vested in the courts of the united states, the phrase as thus used refers only to the power of judging causes in courts of record. state courts and magistrates can therefore be given jurisdiction by congress over any acts in aid of the functions of the united states, the supervision of which may be regarded as ministerial, or as incidental to judicial power rather than a part of it. they have received it in this way with respect to such matters as seizure of deserters from a merchantman, the arrest and commitment or bail of offenders against the criminal laws of the united states, the taking of affidavits and depositions for use in proceedings before federal authorities, and the naturalization of aliens.[footnote: robertson _v._ baldwin, u. s. reports, .] state courts also have jurisdiction over any civil action to enforce a right given by the laws of the united states, unless congress has otherwise provided. they constitute together with the federal courts one general judicial system for the whole country.[footnote: cluflin _v._ houseman, u. s. reports, , ; calvin v. huntley, mass. reports, ; northeastern reporter, .] almost all american courts are known as "courts of record." a court of record, in modern parlance, is one which tries causes between parties and is required to keep a full official and permanent record of its disposition of them. for this purpose most courts are furnished with a recording officer, called the clerk. his record is the only evidence of their judgments and cannot be contradicted or impeached in any collateral proceeding. if there is any error in it, it can only be shown on a direct proceeding brought to correct it. justices of the peace, when authorized to try causes, act only in small matters and in a summary way. in most states they are not, when exercising this function, deemed to constitute a court of record. nor is any court, even though furnished with a clerk, if its proceedings are not recorded in full, but simply made the subject of brief notes or minutes,[footnote: hutkoff _v._ demorest, n. y. reports, ; northeastern reporter, .] unless there is a statute or local practice giving such notes or minutes the effect of a record. a court of record has inherent power to preserve order in proceedings before it[footnote: see chap. xx.] and, unless other provision be made by law, to appoint a crier or other officer to attend upon its sessions. by statute it is commonly made the duty of the sheriff of the county to attend all courts of record, either personally or by deputy. he also executes such processes as under the practice of the court may be directed to him. witnesses and jurors are thus summoned by him to appear before the court; arrests and attachments of property are made; and executions are levied to enforce final judgments. * * * * * chapter ix the organization of the courts of the united states the constitution of the united states (art. iii) provides that there must always be one supreme court of the united states. the establishment of such inferior courts as may be deemed proper from time to time is left to congress. the judicial power of the united states is limited to cases of certain kinds or between certain kinds of parties. either ( ) the subject-matter of the action must be of a kind that concerns the whole nation, or ( ) some party to it must be or claim under a political sovereign, or ( ) it must be between a citizen of a state of the union and one of another of the states or of a foreign country. in a few of the second class the supreme court is given original jurisdiction: in all others of both classes it has appellate jurisdiction, with such exceptions as congress may think fit to make, save only that no fact tried by a jury can be thus re-examined, except so far as the rules of the common law would have permitted. its original jurisdiction is confined to cases affecting ambassadors, ministers, and consuls and those to which a state shall be a party. it is not necessarily exclusive as respects any of them,[footnote: ames _v._ kansas, u. s. reports, , .] and by the eleventh amendment to the constitution is so limited as not to include suits against a state by citizens of any other state or foreign government. in point of fact, few original suits have ever been brought before the court, and almost all of these have been instituted by or against states. the supreme court is held at washington. there is a chief justice with eight associate justices, and each is also assigned for circuit duty as a judge of the circuit court of the united states in one of nine judicial circuits into which the country is divided. originally there were but six judges, and each was required to hold two circuits a year in each district in his circuit. they were assigned to the circuits in pairs, and both sat together with the district judge. the consequence was that three-fourths of their time was spent in traveling from one court town to another. they complained of this to congress through the president in , and the next year it was provided that circuit courts might be held by one justice, alone or with the district judge. in , an ultimate reduction of the number to five was provided for. they were to devote their time entirely to the supreme court, while the circuit courts were to be held by a new set of eighteen circuit judges. in , they had only ten cases pending before them, and the average for some years had not exceeded that number. for this and other reasons mentioned elsewhere the act of was repealed by the next congress. in , another justice of the supreme court was added and two more in . each circuit has a judicial establishment of its own, and is composed of a certain number of judicial districts. of these there are in the whole united states about eighty. the smaller states constitute one district. in the larger ones there are several. each district generally has its own judge, called the district judge, and always its own court, called the district court of that district. each circuit has several circuit judges, whose main work is to sit in a court held in each circuit, styled the circuit court of appeals. they can also hold a district court. until , the district courts had a narrow jurisdiction, and there were circuit courts having a wider one. in , the circuit court was abolished, and the district court now is the general trial court of the united states in the first instance. anyone can sue there to enforce a right arising under the laws of the united states when the amount in dispute is more than $ , . rights arising under certain of these laws can only be enforced there, and as to them the pecuniary limitation does not apply. such are patent-rights and copyrights. any suit involving an amount exceeding $ , may be brought there when the controversy is between citizens of different states or citizens of a state and citizens of a foreign country. so may a suit by citizens of the same state claiming land under grants from different states, without respect to the value of the subject of controversy. suits of any of these kinds which are brought in a state court may, at the option of the defendant, be transferred for trial into the district court. on filing proper papers the case is transferred automatically. the district court has jurisdiction also over bankruptcy and admiralty matters, a few other kinds of civil cases of minor importance, and of all offenses against the united states.[footnote: the judicial code of the united states, chapter ii.] the pecuniary limit of jurisdiction was for a hundred years fixed at $ . the increase to $ , was due partly to the fact that the supreme court was overburdened by appeals from the trial courts, many of which involved small amounts, and more to a desire to keep judicial power over ordinary controversies between man and man, as far as practicable, in the hands of the state courts. early in the nineteenth century a practice began of bringing suits in the circuit court of the united states, which purported to be between citizens of different states, but in which the plaintiff had either changed his residence for the purpose of giving the court jurisdiction or was really suing for the benefit of a citizen of the same state with the defendant. this was due to the high opinion entertained of the federal judiciary[footnote: niles' register, xxix, .] and the desire to bring the cause before a federal, rather than a state tribunal. such a mode of proceeding, while within the letter of the governing statute, was contrary to its spirit, and little better than a fraud. it was also an evident perversion of the intent of the constitution, and became at last so far-spreading that both congress and the courts used their best endeavors to put an end to it, and with success.[footnote: u. s. statutes at large, xviii, ; hawes _v._ oakland, u. s., , .] another cause is also effective in lessening the docket of the district courts. the ordinary lawyer prefers to sue in a state court, when he has the choice, on account of his greater familiarity with the practice there. many american lawyers have never brought an action in a federal court. most cases which could be so brought can also be and are brought in a state court. congress has thus far maintained for the federal courts the ancient distinction between procedure in law and in equity explained in the preceding chapter. there are those who claim that the reference in art. iii, sec. , of the constitution of the united states to "cases in law and equity" requires its preservation; but this seems a strained construction of the phrase. separate dockets are kept in the district court of legal and of equitable actions. they are brought in different form, tried in a different way, and disposed of by different rules, though by the same judges and at the same term of court. as to equity cases, the rules of the old english chancery practice are substantially followed. in cases of a common law nature, the practice existing at the time in regard to those of a similar kind in the courts of the state within which the federal court may be held is to be followed, as nearly as may be.[footnote: u. s. revised statutes, § .] in fact, there is a departure from it in many points in most states,[footnote: see nudd _v._ burrows, u. s. reports, .] and in vital ones in those which have reformed their procedure in civil actions by fusing remedies at law with those in equity. if an action framed in this method be removed from a state court to a federal court, the plaintiff must thereupon split it in two, and present his case at law on one set of papers and his case in equity on another. the supreme court, under power derived from acts of congress, has framed rules of procedure for the inferior trial courts of the united states in equity and admiralty cases, and the latter courts have supplemented them by further rules of their own making. the equity rules promulgated by the supreme court were revised in , and took effect as changed in .[footnote: they are printed in volume of the united states reports.] they greatly simplify the former procedure. suits are now tried generally on oral testimony taken stenographically in open court. formerly the evidence was usually given before officials known as examiners or masters in chancery. the former reported the testimony at length to the trial court. the latter reported their conclusions from it. the new rules have abolished demurrers in equity causes in favor of what is substantially the present english practice.[footnote: see _infra,_ page .] in common law causes in the district court, the state remedies by way of attaching the property of a defendant to respond to a judgment, or seizing it on execution, or imposing a lien upon it by a judgment, are adopted and enforced.[footnote: u. s. rev. stat., §§ , , , .] the field of national legislation being narrow, the offenses against the nation are correspondingly few. any acts done on lands ceded by a state, which would have been crimes under its law in , may be punished as such in the federal courts in the same manner which that law provided.[footnote: _ibid_., § .] in the circuit courts, before it was customary to defer the trial of important causes until the justice of the supreme court assigned to the circuit could be present. if he differed on any material point from the district judge, this point could be certified up to the full supreme court for argument and decision there. during this period the published reports of the decisions of the circuit court contain many opinions of the highest value. several of the best which story and bushrod washington wrote are to be found among them. the act of , by which a resident circuit judge was appointed for each circuit, provided notwithstanding that each member of the supreme court should attend at least one term of the circuit court in each district as often as once in two years. the press of business at washington, however, soon became such as to make it practically impossible for the supreme court justices to do any substantial circuit work. when some case of national importance was to be heard in any district, the justice in whose circuit it was included would make a special effort to go down. in this way chief justice chase heard and sustained the plea with which jefferson davis met the indictment against him for treason. but ordinarily the circuit judge took the place of the supreme court justice, and the latter, if he appeared at all during the term, remained hardly for a day. the supreme court, therefore, during over a hundred years remained the only court of the united states existing mainly for appellate purposes. the work which it had before it at the last term during which it occupied this position (october term, ) will show how much it was then overburdened. its docket contained , appeals brought forward by continuance because they could not be disposed of at the preceding term, new cases of the same kind, and cases of original jurisdiction, making a total of , actions. of these, although the term lasted nearly eight months, it was only able to dispose of , thus leaving , for continuance to the following term.[footnote: u. s. reports, appendix.] it will be observed that the court was no longer able to cope with its new business, not to mention that left over from previous years. appeals now lie in most civil cases from the final judgments of the district and circuit courts, and from convictions for infamous crimes, not capital, to the circuit court of appeals. they also extend to judgments granting a temporary injunction. there is a court of this name for each of the nine circuits, which was established in for the further relief of the supreme court and the speedier termination of litigation. this measure originated in the american bar association, by which it was pressed upon the attention of congress. it had become an absolute necessity to devise some plan of expediting the disposition of appeals from the trial courts of the united states. there was more than enough of such business by the close of the civil war (the events attending which brought up for decision many novel questions of the highest importance) to require the entire attention of the supreme court. it soon took three years after an appeal was docketed before it could be reached for argument. this was intolerable, and it was obviously necessary either to restrict the liberty of appeal; to constitute divisions of the court, one to hear appeals of a certain class and another those of another class; or to set up an intermediate court. the last method was preferred. the practice in the circuit court of appeals is governed by rules of its own making, but in general conforms to that of the supreme court of the united states in appealed cases. the commission appointed some years since to prepare a revision of the laws of the united states have reported in favor of abolishing all jurisdiction of the circuit court over original cases and turning it into an appellate court.[footnote: senate doc. , th congress, st session.] should this recommendation be adopted, the district court would acquire the jurisdiction now vested in the circuit court, the district judges would sit in the district court only, and the circuit court judges in the circuit court only, while the circuit court of appeals would come to an end. the american bar association voted in that it was desirable to establish a new appellate court to sit at washington and take cognizance of patent and copyright cases. such a measure would tend to relieve the supreme court of the united states of any undue pressure of business, and promote both uniformity and promptitude of decision in a class of actions in which promptitude and uniformity are of special importance. as things stand now, a patent may be pronounced invalid in one circuit and upheld in another by courts of equal authority; and while in such event the supreme court would probably, on a special application, call both these judgments up before it for review, this remedy cannot be claimed as a matter of absolute right, and is at best a slow one. the circuit court of appeals is held by three judges, two constituting a quorum. those generally sitting are the circuit judges belonging to the circuit. the justice of the supreme court assigned to the circuit may also sit, and any of the district judges in the circuit can be called in. except in a very limited class of cases, the decision of this court is final, unless the supreme court, on special application, should think the questions involved to be of sufficient importance to require a review, when it can order the record sent up to washington for that purpose. the circuit court of appeals can also of its own motion certify up any questions in a cause to the supreme court for its instructions before making a final disposition of it. the supreme court has direct appellate jurisdiction over the district and circuit courts in cases turning on the limits of their jurisdiction, in prize causes, in equity suits by the united states under the statutes regulating inter-state commerce, and in all cases involving the construction or application of the constitution of the united states, or of a treaty. appeals also lie to it from judgments of conviction in the circuit court for capital offenses.[footnote: u. s. statutes at large, ; _ib_. .] the consequence of the circuit courts, which had been impaired by the practical withdrawal of the justices of the supreme court, was further lessened by the creation of the circuit court of appeals. before that their judgments in most cases were final. in criminal causes there was no appeal, and in ordinary civil causes none after , unless the matter in controversy exceeded $ , in value. this left the life, liberty and property of the citizen top much in the hands of one man; and the people, led by the bar, insisted on stripping him of powers so liable to abuse.[footnote: see an attack on a similar state of things existing in louisiana at one time in the district court, by edward livingston in . hunt, "life of edward livingston," , .] no sovereign can be sued in his own courts without his consent. the united states consent to be sued on most claims against them of a contractual nature, which they may dispute. for this purpose a court of claims has been established at washington, consisting of a chief justice and four associates. originally it was little more than an administrative bureau; but by successive amendments of the law it has come to have fully a judicial character,[footnote: united states _v._ klein, wallace's reports, , ; u. s. statutes at large, .] except in one particular. it is a general principle that a court will make no decree that it cannot enforce. the court of claims cannot issue an execution to enforce its judgments. money can be drawn from the treasury of the united states only to meet appropriations made by congress. an appropriation is made by each congress of a gross sum to satisfy any judgments that have been or may be rendered by the court of claims; but should this provision be omitted in any appropriation bill the judgments of the court of claims could not be collected. concurrent jurisdiction in these respects is given to the district court of claims not exceeding $ , in amount, and to the circuit court of those exceeding $ , and not exceeding $ , . aliens can sue in the court of claims when their own country accords a similar privilege in its courts to citizens of the united states.[footnote: u. s. revised statutes, § .] this court has also a peculiar kind of advisory jurisdiction. congress, or any committee of either house, can refer to it any questions of fact which may have come before them. the judges must then ascertain the facts and report them back. the head of any of the great executive departments may, in like manner, in dealing with any claim against the government, if the claimant consents, refer any uncontroverted questions, either of fact or law, to the court, which must then report back to him its findings and opinion. this does not take the form of a judgment, for there is no case and no parties are before it. it is a mere expression of opinion, and stands on much the footing of the report of a committee of inquiry to a superior authority.[footnote: u. s. statutes at large, ; _id._, .] a temporary court is also in existence called the court of private land claims. this is composed of a chief justice and four associate justices, and has jurisdiction to hear and determine claims of title to land as against the united states, founded on spanish or mexican grants in new mexico, arizona, utah, nevada, colorado or wyoming. an appeal from the final judgment is given to the supreme court of the united states.[footnote: u. s. statutes at large, .] the district of columbia has a special judicial establishment. there is a court of general jurisdiction known as the supreme court of the district of, columbia, and appeals from its judgments lie to the court of appeals of the district of columbia. this is composed of a chief justice and two associate justices, and its judgments are reviewable by the supreme court of the united states, if $ , is involved, or the validity of an authority exercised under the united states or a treaty or act of congress is in question. an appeal also lies to it from decisions of the commissioner of patents as to claims of a right to a patent.[footnote: u. s. statutes at large, .] when new territory comes by conquest or cession permanently under the jurisdiction of the united states, it belongs to the president, in the exercise of his executive power, to see to its proper government until congress makes other provision. he can institute courts there for that purpose, or if he finds courts created by the former sovereign in existence, can expressly or impliedly permit them to continue in the exercise of judicial functions. each fully organized territory has a set of local courts and one supreme court to which appeals can be taken and the judgments of which, in cases of large pecuniary magnitude or great legal importance, can be reviewed by the supreme court of the united states. these territorial courts do not exercise what is known in the strict sense and designated in the constitution as "the judicial power of the united states." they are created to meet temporary conditions, and with judges whose commissions run only for a few years. such courts are instruments through which congress exercises its power of regulating the territory of the united states. they act judicially. they have judicial power. but the source of this power is not the clause in the constitution under which the judicial power of the united states is defined.[footnote: american insurance co. _v._ canter, peters' reports, .] it is therefore not necessary to confine such courts strictly to the consideration of judicial business. in the organization of our earliest territories the judges were given legislative functions, and while this was originally due to the terms of the ordinance of , it was confirmed by various acts of congress after the adoption of the constitution of the united states. the philippines are governed under an act of congress by a commission acting under the supervision of the secretary of war. the organization of courts established by spain has been in substance preserved. the spanish law which was in force there was expressed in codes mainly founded on those framed for france under napoleon i. in , the spanish code of civil procedure was supplanted by one prepared by a member of the philippine commission, and which is now familiarly known by his name as the ide code. in substance, it establishes the mode of proceeding in civil cases which is known in the united states as code pleading. trial by jury has not been introduced into the philippines either in civil or criminal causes, and need not be.[footnote: dorr _v._ united states, u. s. reports, .] in criminal causes, the spanish system was originally retained, allowing either party, the united states or the defendant, to appeal from the judgment of the court of first instance to the supreme court of the islands and have there a new hearing both as to fact and law. this, however, so far as concerns an appeal by the government, was held to be contrary to the act of congress under which it was constituted.[footnote: kepner _v._ united states, u. s. reports, .] the courts of the united states are generally provided with an officer styled a marshal. he executes their process, attends their sessions, and exercises in general the functions which belong to a sheriff as respects state courts. each district court appoints a convenient number of district court commissioners, who issue warrants of arrest on criminal proceedings, take bail, inquire whether there is probable cause to hold the accused to answer to the charge in court, and discharge in such respects substantially the functions generally belonging to justices of the peace in the states. * * * * * chapter x relations of the state judiciary to the united states and of the united states judiciary to the states every judicial officer of a state is required by the constitution of the united states to bind himself by oath or affirmation to support it, and this obligation compels him to respect every act of congress made in pursuance of the constitution, and every treaty made under the authority of the united states, as, in case of conflict, superior to anything in his state constitution or laws. the courts of the national government are complementary to those of the states. both belong to one judicial system. rights arising under the laws of the united states may be enforced by a state court as well as by a federal court, and rights arising under a state law by a federal as well as by the state court, unless in cases where there is some special restriction upon its jurisdiction. such a restriction may be imposed by either government, as respects any right which it creates. the judicial power of the united states extends only to certain classes of cases. as to some of these it is necessarily exclusive: as to any of the rest congress can make it such.[footnote: the moses taylor, wallace's reports, , .] on the other hand congress may assume to invest a state court with power to dispose of a certain matter of federal right, and the state may decline to permit the exercise of such a power. the united states cannot in that manner compel the courts of another government to do their bidding. it would tend to throw on the states a greater burden than they might deem necessary or proper. they provide courts to meet the wants of those looking to their own sovereignties for justice. thus, although nothing could seem more anomalous than for one sovereignty to confer citizenship in another, the laws of the united states allow naturalization to be obtained by proceedings in state courts. most aliens who become citizens of the united states do so in that way, because the state courts are more easy of access. but a state can at any time restrict or forbid the use of its courts for such a purpose.[footnote: stephens, petitioner, gray's (mass.) reports, ; state _v._ judges, n. j. law reports, ; atlantic reporter, .] the federal courts can lend their aid to carry into effect a right arising wholly from the statute of a state, even if it affect maritime interests and must be enforced, if at all, through an admiralty court. admiralty suits, it is true, can only be brought in the courts of the united states, but that is the very reason why, if such a suit gives the only remedy, jurisdiction of it should be entertained in the only sovereignty competent to give relief.[footnote: the lottawanna, wallace's reports, , .] there are many civil cases which can be brought, at the option of the plaintiff, either in a court of the united states or in a state court. some of these, if brought in a state court, the defendant can, at his option, allow to remain there or remove for trial into the circuit court of the united states. criminal prosecutions by a state may also be removed, under certain conditions, to the circuit court of the united states, when the defense is one arising under the laws of the united states. in any cause tried in a state court, if the decision turns on a claim of right, set up under the constitution, laws or treaties of the united states, and is against its validity, the losing party, if unable to secure its reversal by appeal to a higher court of the state, can ask such relief from the supreme court of the united states. it will be observed that it is the losing party only who has this remedy. if the state court decides, however erroneously, that the claim of a federal right is well grounded, this is conclusive as respects the controversy in that suit. if all state courts in which the validity of an unconstitutional act of congress was contested should uphold it, the courts of the united states would be powerless to right the wrong, unless they were called upon to enforce the statute in some suit brought before them for original trial. the obvious object of the limitation is to preserve so far as is possible the sovereignty of the states. the courts of the nation are to set aside acts or judgments flowing from that only in case of necessity and to preserve rights flowing from the sovereignty of the nation. for the same reasons, resort can be had to the supreme court of the united states only after every right of review given by the laws of the state has been exhausted. usually this requires one who loses his cause in a trial court to take it up to the state court of last resort. where, however, this is not permitted by the state law, he may ask for a writ of error from the supreme court of the united states to whatever court was the highest to which he was able to remove it; and if, by the state law, he was unable to appeal at all, then the writ will go to the trial court. one of the greatest of chief justice marshall's great opinions was rendered on a writ of error to the quarterly session court for the borough of norfolk in virginia, held by the mayor, recorder, and aldermen of the borough.[footnote: cohens _v._ virginia, wheaton's reports, .] it was the opinion of hamilton that an appeal might be given from the state courts to the inferior federal courts, in case of a decision turning on a right claimed under the constitution or laws of the united states.[footnote: _federalist_, no. lxxxii.] this is probably true, but congress has wisely forborne to make any such provision. it imposes a strain sufficiently great on the sovereignty of a state to subject the judgments of its court of last resort to reversal by the supreme court of the nation. the power to declare a statute void because inconsistent with constitutional provisions belongs to every court in every case in which such a statute is relied on either to support the action or in defense.[footnote: see chap. vii.] it therefore belongs, as respects a state statute which may be attacked as inconsistent with the constitution of the united states, to the trial courts of the united states as well as to the supreme court. this makes it possible for a district or circuit court of the united states to adjudge the statute of a state in which it sits to be unconstitutional and void, although it may have been declared valid by a judgment of the highest court of the state, from which no appeal to the supreme court of the united states was ever taken. however derogatory to the sovereignty of the states the possession of such authority may seem and be, it is evidently a necessary feature of our dual system of government. in some way it was indispensable to provide for maintaining the full powers of the united states against encroachments by state legislation, and also for enforcing all the special limitations on the powers of state legislation which the constitution of the united states lays down. this could have been done effectually in but two ways: either by giving to congress or to the president a veto upon state laws; or by leaving the right of control to lie dormant until a necessity for exercising it should arise, and then putting it in the hands of the judiciary. the latter method was clearly open to the least objection.[footnote: see hamilton's discussion on this point in the _federalist_, no. lxxx.] jefferson maintained that there was a third, and one which the constitution expressly provided. this was the calling of a convention of all the states for proposing amendments to it. if, he said, a state on the one hand by her highest authorities asserts a certain line of action to be within her powers, and the united states by their highest authorities deny it, "the ultimate arbiter is the people of the union, assembled by their deputies in convention, at the call of congress, or of two-thirds of the states. let them decide to which they mean to give an authority claimed by two of their organs."[footnote: letter to mr. justice johnson, tucker, "life of thomas jefferson," ii, .] there seems a plain fallacy in this proposition. the question to be decided, in case of a conflict of judicial authority, is not which doctrine ought to be adopted, but which was adopted when the constitution was framed. to amend that instrument and make it something else could not justly be allowed to alter the effect of acts previously done. but one serious proposition has ever been made to call a national constitutional convention for any such purpose. that was by kentucky in january, , when civil war was threatened; and it was not pressed. the very delays which would be inevitable in assembling such a body were then a reason for the call, for they would give time for the "sober second thought." the plan, however, seemed and probably was impracticable. the movement toward secession had gone too far.[footnote: debates and proceedings of the national peace convention, , , .] there were many, at the time when the constitution of the united states was before the people for ratification, who feared that the jurisdiction of their courts would be extended by judicial construction beyond the limits of the grant. new york in her vote of ratification incorporated a declaration that she understood it to be impossible that the jurisdiction of any court of the united states could ever be enlarged "by any fiction." in the maryland convention, this sentiment took shape in a proposed amendment to the constitution adopted by a committee appointed for the purpose, but never reported, "that the federal courts shall not be entitled to jurisdiction by fictions or collusion."[footnote: elliot's debates, ; proceedings massachusetts historical society, xvii, - .] had such an amendment been proposed and adopted, it would have cut off a large share of the most important cases now brought before the circuit courts. in , there were only twenty-seven business corporations in the united states.[footnote: report of the american historical association for , ; _american historical review_, viii, .] it was not long before they became countless and the large affairs of the country were in their hands. could they sue and be sued in the courts of the united states? the decision on this point was that, by force of a pure legal fiction, invented for the purpose, they might be. they were, indeed, not citizens of any state;[footnote: paul _v._ virginia, wallace reports, .] but the persons who composed them probably were. therefore, it must be assumed that they certainly were, and also that they were all citizens of the same state and that the state from which incorporation was obtained.[footnote: louisville, cincinnati and charleston r. r. co. _v._ letson, howard's reports, , ; ohio and mississippi r. r. co. _v._ wheeler, i black's reports, .] sir henry maine maintained that legal fictions were the rude device of early stages in government, and to add to them disturbed the symmetry of a legal system and was unworthy the approval of modern courts.[footnote: ancient law, .] but while they are among the things that it is hard to justify on principle, it is harder to dispense with them in actual practice, as the instance given conspicuously illustrates. although the united states are the only depositary of the power of ordering foreign relations, foreign governments are often aggrieved by acts of the courts of a state which the united states have but imperfect means of preventing or rectifying. in , we were brought to the verge of war with great britain by an incident of this nature. an insurrection broke out in canada in , and a new york steamboat was chartered to bring supplies across the niagara river to those engaged in it. one night when she was moored on the new york side of the river a party of loyal canadians seized and burned her. during the accompanying affray an american was killed. a canadian named mcleod, who was charged with having fired the fatal shot, was afterwards arrested in new york and indicted for murder. the british government then informed ours that it had ordered the burning of the steamer, and thereupon demanded mcleod's release. our secretary of state replied that the prosecution was in the hands of the state of new york, and the united states had no control over it. lord palmerston made the affair the subject of a dispatch, in which he stated that mcleod's execution would produce "a war of retaliation and vengeance." the president at once requested the governor of new york to order a discontinuance of the prosecution. this was declined, but with a promise to grant a pardon in case of conviction.[footnote: lothrop, "life of william h. seward," .] the state courts refused to discharge the prisoner. he was tried on the original charge, but acquitted. congress in did what it could to prevent the recurrence of such a conflict of authority by passing an act giving the circuit and district courts of the united states jurisdiction on _habeas corpus_ proceedings in favor of foreigners held by state authority, who might claim a right of release under the principles of international law.[footnote: u. s. revised statutes, § .] the circuit court has since been given power to entertain original jurisdiction of any causes arising under the constitution, laws or treaties of the united states, regardless of the citizenship of the parties, if a value of $ , is involved. in all cases, also, of imprisonment by state authority, whether under arrest before trial or after a sentence of conviction, in violation of rights claimed under the constitution, laws or treaties of the united states, the prisoner may now be summarily discharged on a writ of _habeas corpus_ by a court or judge of the united states. ordinarily, however, as a matter of comity, he will be left to seek his remedy in the state courts, and if without success there, on a writ of error from the supreme court of the united states.[footnote: _in re_ neagle, u. s. reports, ; _ex parte_ royall, u. s. reports, .] the state courts have no power to release on _habeas corpus_ one who is held under the authority of the united states. if that authority has been illegally exerted, his remedy is in the federal courts alone.[footnote: ableman _v._ booth, howard's reports, .] the cases in which a state can be sued in an original suit in the supreme court of the united states are defined in the constitution and, as limited by the eleventh amendment to it, are quite few. several such actions have been brought. in the earlier ones, the state declined to recognize the jurisdiction of the court and did not enter an appearance. the court thereupon decided to proceed _ex parte_ on hearing the plaintiff;[footnote: see new jersey _v._ new york, peters' reports, ; u. b. phillips, "georgia and state rights;" report of american historical association for , ii, .] and in the later cases the states have appeared and made defense. the court, in one of these suits, was asked to issue an injunction in favor of the cherokee indians against the state of georgia to prevent her and her governor, judges and other officers whatsoever from enforcing certain of her statutes which were alleged to be unconstitutional. the case went off on another point, but the majority of the court intimated it to be their opinion that no such injunction could properly issue against a sovereign state. marshall thought it savored "too much of the exercise of political power to be within the proper province of the judicial department." mr. justice johnson said that it was an attempt to compel the president of the united states, and by indirection, to do what he had declined to do on the plaintiff's application to him; namely, "to declare war against a state or to use the public force to repel the force and resist the laws of a state."[footnote: cherokee nation _v._ georgia, peters' reports, , , .] it would be no easy thing to enforce a judgment against a state should it resist. hence the supreme court has been justly reluctant ever to make any order which would take money out of a state treasury, unless in cases where the treasurer was individually sued, and the money in dispute was not mingled with other public funds. in , four years before the adoption of the eleventh amendment, a judgment against the state of georgia, authorizing an assessment of general money damages against her, had been entered in the supreme court in favor of one chisholm, to whom she owed a debt. georgia had refused to enter an appearance in the suit, and in anticipation of this result her house of representatives had resolved, in , that if any federal marshal should attempt to levy an execution on such a judgment against the state, it should be a felony, and on conviction he should be hanged. the senate had not concurred in this measure, but it reflected pretty closely the general state of public feeling in a state largely indebted for what her people thought it belonged to the united states to pay. the eleventh amendment was proposed by congress during the term of court at which judgment was entered, but not adopted until . meanwhile, the court had thought best to defer further proceedings, and none were ever taken afterwards. the plaintiff therefore won a barren victory.[footnote: u. b. phillips, "georgia and state rights," report of american historical association for , ii, .] the appellate jurisdiction of the supreme court of the united states over states is large, for the state is the party in whose name all criminal prosecutions in its courts are brought, and in many of these the defendant sets up some claim under the laws of the united states which is overruled. here again, in case of resistance, it would be difficult to enforce a judgment of reversal. shortly before the action of the cherokee nation for an injunction, the georgia courts had sentenced corn tassel, one of the tribe, to death for murdering another of them. tassel had claimed that by the laws of the united states and their treaty with his nation he could only be prosecuted before one of his tribal courts. he obtained a writ of error from the supreme court to review his case on this ground. it was served, but before it could be heard the day set for his execution had arrived. by the laws of the united states the allowance of the writ of error superseded the sentence until the appeal should be decided. the governor laid the matter before the legislature, saying that he did not propose to regard any orders from the supreme court interfering with those of georgia courts, and should resist any attempt to enforce them with all the forces at his command. the legislature approved his position,[footnote: u. b. phillips, "georgia and state rights," report of american historical association for , ii, .] and tassel was hanged on the day originally set.[footnote: "memoirs of william wirt," ii, .] there had been no time to resort again to the supreme court for relief, and as soon as he was dead his writ of error fell with him, for such a proceeding is legally terminated if the plaintiff in error dies. two years later, rev. mr. worcester, a missionary who had gone to teach the christian religion to the cherokees, was convicted in the superior court of gwinnet county on an indictment for residing among them without a license from the state, and sent to the state prison. he appealed to the supreme court of the united states, which decided that georgia had no jurisdiction over the cherokee reservation, and could not require such licenses. the judgment against him was therefore reversed, and an order made "that all proceedings on the said indictment do forever surcease; and that the said samuel a. worcester be and hereby is henceforth dismissed therefrom, and that he go thereof quit without day, and that a special mandate do go from this court to the said superior court to carry the judgment into execution."[footnote: worcester _v._ georgia, peters' reports, , .] the superior court of gwinnet county paid no respect to this mandate; the governor of georgia characterized it as an attempt at usurpation which he should meet in a spirit of determined resistance; and worcester remained in prison until, on expressing his willingness to abandon any further efforts for his discharge by authority of the judgment on his writ of error, the governor gave him a pardon on condition of his leaving the state. a year later, james grady, who lay under a sentence of death under proceedings similar to those in tassel's case, like him obtained a writ of error from the supreme court of the united states and had it served on the georgia court, only to find it disregarded. his execution, in spite of the _"supersedeas"_ which goes by law with every such suit, was the last of this series of judicial outrages.[footnote: "georgia and state rights," .] it was unfortunate for the sufferers in these proceedings that they took place at a time when the cry of "state rights" was particularly loud and general in the south. south carolina had been quieted with difficulty by jackson's action in regard to her nullification ordinance, and he did not wish to go farther than he thought it necessary in insisting on the supremacy of the united states. since the civil war, such defiance by a state of the authority of the supreme court of the united states has been unknown and would be almost inconceivable. the absolute right of the supreme court of the united states to pronounce finally, so far as the states are concerned, upon every question brought before it as to the meaning and effect of the national constitution, has come to be universally acknowledged. the courts of a state have the same right, except that it is not final. this the original judiciary act of (sec. ) fully recognized. something like it may belong to a convention of the whole people of a state, called to act upon its fundamental concerns; for that would represent the sovereignty of the state as a whole in the fullest manner. it was from such a convention that the nullifying ordinance of proceeded, but the vice of its action was, not so much that it pronounced the protective tariff acts unconstitutional and void, but that it assumed to deny any right of appeal in litigation growing out of these acts and the ordinance of nullification, from the courts of south carolina to the courts of the united states. this liberty of appeal in the regular course of judicial procedure is the one thing which keeps the united states in existence. the law governing the ordinary transactions of life is that of the state where they may have their seat. this was affirmed in the original judiciary act,[footnote: u. s. revised statutes, § . as "equity follows the law," state legislation creating new equitable rights or varying those formerly established also affects causes in equity in the federal courts. brine _v._ insurance co., u. s. reports, ; but see james _v._ gray, federal reporter, .] as a general rule for the courts of the united states in trials at common law. by another act of congress,[footnote: _ibid_., § .] the practice, pleadings, and form and mode of proceeding in civil causes, other than those of equity and admiralty jurisdiction, in the circuit and district courts are to conform as nearly as may be to that followed in the state within which these courts may be held. the state laws which are thus made a rule for the united states courts are the law of the state as it is understood and applied in its own courts. hence the construction of a state statute, or the doctrines of the common law in a particular state, if definitely settled by the courts of that state, must be followed in subsequent litigation in the federal courts. where, however, a state court has taken a certain position as to what the law is, and afterwards changes its position, the federal courts are not compelled to change with it, if this would do injustice to one who has meanwhile acted on the faith of the original ruling.[footnote: burgess _v._ seligman, u. s. reports, , and see argument of daniel webster in groves _v._ slaughter, peters' reports, , .] nor are the federal courts, in large questions of a commercial nature, bound always to accept the opinion of a state court as to what the common law of the state may be. the manner in which this doctrine has been evolved is an interesting example of the manner in which law develops by litigation, and new points are struck out in a single case as the joint product of lawyer and judge.[footnote: see chaps, xvii, xviii.] a bill of exchange drawn in maine on one tyson, a merchant in new york, and bearing his acceptance, was indorsed over to one swift, who took it in good faith before it fell due, in payment of a pre-existing debt. he sued tyson upon it in the circuit court of the united states in maine. if his rights were as good as if he had paid value for it at the time he received it, he was entitled to recover. if not, his action failed; for the acceptance had been obtained by fraud. it was made in new york. the judicial decisions of that state, contrary to the prevailing opinion as to what was the general common law rule, seemed to favor the view that a pre-existing debt did not stand on as good a footing as a present payment, in support of a claim upon negotiable paper. samuel fessenden of portland, a lawyer of great ability, was his counsel. the cause was submitted on briefs, without oral argument. mr. fessenden, admitting that the law of the place where acceptance was made must govern the obligations of tyson, insisted that the new york decisions were wrong in principle and ought not to be regarded. "if," said his brief, "there is any question of law, not local, but widely general in its nature and effects, it is the present question. it is one in which foreigners, the citizens of different states in their contests with each other, nay, every nation of the civilized commercial world, are deeply interested. by all without the united states this court is looked to as the judiciary of the whole nation, known as the united states, whose commerce and transactions are as widely diffused as is the use of bills of exchange.... how can this court preserve its control over the reason and affections of the people of the united states; that control in which its usefulness consists, and which its own untrammeled learning and judgment would enable it naturally to maintain; if its records show that it has decided-as it may be compelled to decide if the construction referred to, advocated on the part of the defendant, is established-the same identical question, arising on a bill of exchange, first one way, and then the other, with vacillating inconsistency?" mr. dana, for tyson, maintained the opposite view with equal ability. "in coming together," he said, "from the respective states, the framers of the constitution, and our representatives in congress after them, must be regarded as having had in view the language, laws, and institutions of the states which they represented." mr. justice story gave the opinion of the court. referring to the provision in the judiciary act (now u. s. revised statutes, sec. ) above mentioned, on the construction of which the case must turn, "it never," he remarked, "has been supposed by us that the section did apply, or was designed to apply, to questions of a more general nature, not at all dependent upon local statutes or local usages of a fixed and permanent operation, as, for example, to the construction of ordinary contracts or other written instruments, and especially to questions of general commercial law, where the state tribunals are called upon to perform the like functions as ourselves, that is, to ascertain upon general reasoning and legal analogies, what is the true exposition of the contract or instrument, or what is the just rule furnished by the principles of commercial law to govern the case.... the law respecting negotiable instruments may be truly declared in the language of cicero, adopted by lord mansfield in luke _v._ lyde, burr. b., , , to be in a great measure, not the law of a single country only, but of the commercial world. _non erit alia lex romæ, alia athenis, alia nunc, alia posthac, sed et apud omnes gentes, et omni tempore, una eademque lex obtinebit."_[footnote: swift _v._ tyson, peters' reports, , , , , , , .] this opinion had been submitted to the court for the first time during the evening before it was delivered.[footnote: _ibid_., .] it could not have received any very close scrutiny. it relied on no authority except that of cicero, for lord mansfield, in the case of luke _v._ lyde, was speaking of the law of the sea, which in the nature of things no one nation can prescribe or change. it was not easy to reconcile it with precedents cited by mr. dana, in one of which mr. justice chase of the same court had held on the circuit as early as that the united states had no common law of their own, and that the "common law, therefore, of one state is not the common law of another; but the common law of england is the law of each state, so far as each state has adopted it; and it results from that position, connected with the judicial act, that the common law will always apply to suits between citizen and citizen, whether they are instituted in a federal, or state, court."[footnote: united states _v._ worrall, dallas' reports, , .] so the supreme court itself had said, in , in a famous judgment, concurred in by mr. justice story himself, that "it is clear, there can be no common law of the united states. the federal government is composed of twenty-four sovereign and independent states; each of which may have its local usages, customs and common law. there is no principle which pervades the union and has the authority of law that is not embodied in the constitution or laws of the union. the common law could be made a part of our federal system only by legislative adoption. when, therefore, a common law right is asserted, we must look to the state in which the controversy originated."[footnote: wheaton _v._ peters, peters' reports, .] the state courts have looked upon the doctrine announced in swift _v._ tyson with an unfriendly eye. in some, its authority is denied.[footnote: see porepaugh _v._ delaware, lackawanna and western r. r. co., pennsylvania state reports, ; atlantic reporter, .] in none will it affect the disposition of a cause turning upon its own law, and not pending in the federal courts. it has, however, been repeatedly reaffirmed by the supreme court of the united states, though the later decisions appear to limit its effect to questions growing out of commercial transactions not wholly confined to a single state.[footnote: western union telegraph co. _v._ call publishing co., united states reports, . see article on the common law of the federal courts, by edward c. eliot, _american law review_, xxxvi, .] the right of recovery on a cause of action of a commercial nature will therefore often depend on the court which the plaintiff selects. if he sues in a state court, the common law of the state, as the judicial authorities of that state declare it to be, will be applied; if he sues in a court of the united states, the common law of the state as the judicial authorities of the united states declare it to be. each tribunal will profess to decide by the same rule--the law of the state; but the federal court will really apply the common law of england, as it is generally understood to be, instead of the common law of that state as it is locally understood to be. the relations between the federal and state courts which have been described obviously present many occasions for conflicts of authority. that such conflicts are so infrequent is mainly due to a spirit of comity, which the judges of each sovereignty should and generally do show to those of the other. the federal courts are also prohibited by act of congress from issuing any injunction to stay proceedings in a state court, except in certain cases arising under the bankruptcy laws. independent of any statute, however, the general principles of jurisprudence forbid any direct attempt either by a court of the state to control the action of a court of the united states or by a court of the united states to control the action of a state court, except to the limited extent for which provision is made in the national constitution.[footnote: diggs _v._ wolcott, cranch's reports, ; m'kim _v._ voorhies, cranch's reports, .] each court, this exception aside, exercises powers belonging to an independent sovereign, and therefore subject to control by that sovereign only. the equitable jurisdiction of the courts of the united states enables them to interfere in disputes arising out of state elections in certain cases in which the claim is set up that rights held under the constitution or laws of the united states have been violated. actions for such relief are rare, and instances have occurred in which the remedy has been abused for political purposes.[footnote: see the proceedings in the case of kellogg _v._ warmoth in the united states circuit court in louisiana in . mcpherson's "history of reconstruction," - .] the centralizing and nationalizing tendencies which set in early in the nineteenth century and were so greatly strengthened by the course of events during and following soon after the civil war have greatly weakened the position and influence of the state courts. they have thus rendered the state bench less attractive. in , john rutledge, an associate justice of the supreme court of the united states, resigned that office for the chief justiceship of south carolina. during the last half century, several chief justices of states have resigned to become associate justices of the supreme court of the united states. associate justices of supreme courts in the smaller states have also frequently resigned to accept the position of district judge, attracted by the life tenure, larger salary, and retiring pension. * * * * * chapter xi relations between the courts of different states every state has all the rights of an independent sovereign, except so far as its sovereignty is limited by the constitution of the united states. as respects each other the states are for most purposes in the position of foreign governments. the courts of one are regarded by those of any other as foreign courts, except so far as the constitution may have prescribed a different rule. no legal process from a court can have any inherent force outside of the territorial boundaries of the government in which it is issued. the law of that government may attach certain consequences to the fact of its service in a foreign country, but it can do so only with reference to the effect of the proceeding on persons or property subject to its own jurisdiction. courts, as a general rule, can act only when they have jurisdiction over the person, the subject-matter, and the cause. in rare cases, jurisdiction over the subject-matter may be regarded as giving jurisdiction over the person, so far as may be necessary to uphold a judgment settling the possession or title to property. such a proceeding is, either in form or substance, one not _in personam_ but _in rem_. the commonest instance is a suit in admiralty to enforce a maritime lien, such as that given by the universal law of the sea for seamen's wages. wherever the vessel is found, this lien is recognized and will be enforced by seizing and selling her, but only after some kind of public notice has been given to all who have any pecuniary interest in her to appear and be heard. in such a suit, personal notice to her owners, served within the jurisdiction of the government to the courts of which the seamen may resort, is not indispensable. the presence of the ship within the power of the court is enough. while state courts have no admiralty jurisdiction, they can adjudicate upon a claim of title or right of possession to fixed property within the territorial limits of their state, although the parties adversely interested are not and have not been personally served with process there or anywhere. here again their power over the property necessarily implies such power of control over those who might lay claim to it as will suffice to settle any dispute over its ownership or possession. but in all ordinary cases they are not only powerless to subject any one to obedience to their judgments who is not personally within the state in which they exist, but powerless so to subject one who is personally within it, but who did not belong there and was not there served with process in the original proceeding leading up to the judgment, unless he voluntarily took part in the proceeding. in most civilized nations there is a recognized form of proceeding by which a judgment of a foreign court, fairly rendered after giving a proper opportunity to the defendant for a hearing, can be enforced by process from a domestic tribunal. this is styled making the foreign judgment executory. the english common law did not recognize such a right, and gave no remedy to one desiring to enforce a foreign judgment, except that of bringing a fresh suit. in like manner, whoever has recovered a judgment against an inhabitant of any state, in a court held outside of that state, can enforce it against him in his own state only by bringing a new action. this either is, or is in the nature of, the common law action of "debt on judgment"; and only two defenses are available. these are, first, that no such judgment exists or is in force; and, second, that if it exists, it was rendered by a court having no jurisdiction over the subject-matter or the defendant.[footnote: pennoyer _v._ neff, u. s. reports, ; grover & baker sewing machine co. _v._ radcliffe, u. s. reports, .] if there was jurisdiction, it is of no consequence that it was erroneously or unfairly exercised. the remedy for that must be sought in the state where the judgment was pronounced. even fraud on the part of the plaintiff in procuring it, though a defense against a judgment of a foreign country is not one against a judgment of another state.[footnote: christmas _v._ russell, wallace's reports, .] these rules are established by art. iv, sec. i of the constitution of the united states and by acts of congress passed to enforce it.[footnote: u. s. revised statutes, sec. .] commercial intercourse between the different states is so great and so constant that questions in the courts of one often arise which turn on the law of another. those who do any act do it with implied reference to the law of the place where it is done, so far as respects its legal consequences. if it is a wrongful act there, it will in most instances be deemed a wrongful act everywhere. if it leads to a certain result as regards property rights there, it will ordinarily give a right of action anywhere, to secure the benefit of that result. the law of each state is largely an unwritten common law. even in those where they have full codes defining civil rights, these codes are expressed in terms for the definitions of many of which the common law gives the rule. but this common law is not precisely the same in any two states. in minor points certainly, and perhaps in capital ones, there will be a divergence. in england there is one uniform common law. here, divided as we are for most business purposes into forty-five different sovereignties, it is multiform. if, then, the court of one state in determining the legal effect of a transaction having its seat in another must be governed by the common law of that state, where is it to be found? if there have been decisions of its highest courts in regard to what it is with reference to the point in question, they will ordinarily be accepted as conclusive. this is not by virtue of the provision in the constitution of the united states that full faith and credit is to be given in each state to the public records and proceedings of the others. that refers to the effect of public records and proceedings upon the rights of those who are or claim under parties to them. such decisions as those which have been described are accepted as conclusive as to the rights of those who were not parties to them, and simply because they are considered the best evidence attainable of a rule of unwritten law of general application. but they are not universally so considered. the rule that transactions are governed by the law of the place where they have their seat is one founded on the presumed intent of the parties to them. but in fact the parties to a business transaction act on their general notions of what the law is or must be, rather than on any particular knowledge of what courts have declared that it is. the rule that one country will accept the opinion of the judicial authorities of another as to what its law is, is one not to be pressed so far as to sacrifice essential justice. in this point of view, some courts hold that it is permissible to disregard decisions of other states which are based on a departure from what is generally considered a settled doctrine of the common law as to a commercial question. this is substantially the same position taken by the supreme court of the united states, and elsewhere described,[footnote: see chap. x.] concerning the right of a federal court to refuse to be bound by state decisions as to the unwritten law affecting foreign trade or trade between the states.[footnote: faulkner _v._ hart, n. y. reports, , .] another rule of practice of great importance is that in the absence of proof to the contrary the courts will presume, in a state basing its jurisprudence on the english common law, that the unwritten law of any other american state is the same as its own. as the reason of this rule fails in the case of louisiana, florida and texas, which were subject to organized governments not derived from great britain at the time when they were incorporated into the united states, it is not applied to them.[footnote: norris _v._ harris, california reports, .] decisions of a court constitute a precedent of binding obligation only within the particular territorial jurisdiction which is subject to its process. in the tribunals of one state decisions rendered in another on legal points are, so far as respects transactions not governed by its local law, without any authoritative force. they may be read, just as the opinions of an author expressed in a legal treatise, or as the decisions of an english or german court might be, for what they appear to be worth. no formal proof that they were really the deliverances of the court from which they purport to emanate is necessary to support their use for this purpose. the reported decisions of courts of other states, whether published officially or unofficially, may be cited in argument in any cause, to fortify the claims of counsel as to the proper rules to be followed in reaching a decision. for this use they are introduced simply for the intrinsic value of the reasoning and conclusions. if it is claimed that they prove the law of the state from which they come to be of a certain nature (and that is a material point in the case), they should be made the subject of proof before argument.[footnote: hanley _v._ donoghue, u. s. reports, .] in many states this is dispensed with by statutes allowing courts to take judicial notice of all reported decisions in other states; that is, in effect, to take any means which they think proper to learn what they are. it is also the general practice of the bar where no such statutes exist to allow the reports of other states to be read for any purpose without objection. most states have statutes to facilitate the proof in court of the statute laws of other states. the mode prescribed by act of congress (revised statutes, sec. ) under the constitutional provision, to which reference has been made, involves considerable expense for the proper certification of copies. common provisions of state legislation are that all courts may take judicial notice of the laws of other states (that is, take them into account without any formal proof at all), or that a copy of the official publications containing them shall be competent evidence of what they are. there is a certain spirit of comity to which courts often give expression in rendering assistance to courts of other countries. this judicial comity has been defined as "the deference commonly paid by the courts of one jurisdiction to the laws or proceedings of another, in causes affecting rights claimed under such laws or proceedings."[footnote: "dict. of philosophy and psychology," _comity_.] as between courts of the different states in the united states this sentiment naturally is particularly strong. in pursuance of it, it is usual, if there has been a judicial appointment in one state of a representative of the law to administer an estate of any kind, part of which is in another state, for the courts of the latter to give him such further powers or appointment as may be necessary to put in his possession or control whatever is within their jurisdiction. an administrator of the estate of a deceased person would thus be appointed, almost as a matter of course, administrator of such estate in whatever state property or rights of action belonging to it might be found. a receiver appointed by a court of equity to take possession of property would ordinarily, in like manner, be appointed to the same office wherever any part of such property might be situated; and in some states such an officer has been permitted to sue for it under his original appointment. the general doctrine, however, is that a receiver in chancery (that is, a receiver appointed by a court of equity) is simply an arm of the court which appoints him, and has no authority to act outside of the territorial jurisdiction of that court.[footnote: hale _v._ allinson, u. s. reports, .] a receiver of an insolvent corporation often finds that it has shareholders living in several different states, who have not fully paid in their subscriptions to its capital stock. in such case, if the statute of the state under the laws of which it was incorporated provided for the appointment of a receiver for insolvent corporations of that character, he may be regarded in other states as one to whom each shareholder, in legal effect, promised to pay such part of his subscription as had not been previously paid to the corporation itself. on this theory of liability, a foreign receiver has a right of action by virtue of his official position, indeed, but not because of authority from a foreign court to use that position for such a purpose. he sues as one to whom the shareholder promised to make a payment, and on a direct contract between the two, which is implied by law.[footnote: fish _v._ smith, conn. reports, ; atlantic reporter, ; american state reports, .] the sentiment or rule (for from being a sentiment it has risen to be a rule) of comity between states both aids in the enforcement in one of rights acquired under the other,[footnote: finney _v._ guy, u. s. reports, , .] and in the prevention by one of acts which would infringe on prohibitions created by the other. thus, if a corporation of one state has been organized to do business in another, it may be enjoined in its home state from amalgamating with a corporation of the other, contrary to the public policy of the other as declared by its courts.[footnote: coler _v._ tacoma railway and power co., new jersey law reports; atlantic reporter, .] as no legal process can be effective outside the limits of the sovereignty by authority of which it is issued, no court of a state can summon before it witnesses not found within its jurisdiction, who live in another state. this, in view of the free intercourse and trade between all parts of the united states, would work intolerable hardship had not statutes been passed by every state permitting testimony to be taken outside of its limits by written deposition for use in civil cases. so far as criminal causes are concerned, this mode of relief generally cannot be pursued, owing to the common provision in our state constitutions that the accused must be confronted by the witnesses against him. most of the northeastern states, to meet this difficulty, have passed statutes requiring their citizens when summoned by a local magistrate at the request of a court of another state to appear and testify before it in such a prosecution, to do so upon receiving payment for their time and expenses, on pain of a considerable pecuniary forfeiture.[footnote: new hampshire inaugurated this legislation more than sixty years ago. public stat., ed. , . most of the statutes apply only to adjoining or neighboring states, and some require reciprocity on their part.] * * * * * lawyers of one state have no right to practice in any other. by courtesy and on motion of a member of the bar, it is customary for the courts of other states to allow them to participate in the conduct of any particular cause. in some states, lawyers who have removed their residence into them from another may in the same manner be admitted to their bar; in most there is a standing rule on the subject which requires proof of their having practiced in the courts of their original state for a certain number of years, and otherwise provides for an examination into their legal attainments. * * * * * chapter xii trial by jury to have a trial by jury is, as a general rule, the right of every man who sues or is sued in court on a cause of action not of a kind to be disposed of in a court of equity or admiralty. the american colonies did not all adopt this mode of procedure at first, and few of them ever practiced it precisely on the english plan. in the colony of new haven there were no juries. in all the new england colonies, later, there were juries, but verdicts in civil causes had not the conclusive force given them by the common law. the defeated party had what was styled the privilege of a review. this was a new trial before another jury, either in the same court or a higher one. if he lost his case again, it was the end of the litigation. if he gained it on the second trial, the other party could demand a third, and the event of that decided the cause forever.[footnote: bissell _v._ dickerson, conn. reports, , ; atlantic reporter, .] in criminal prosecutions a similar right was sometimes conceded to the defendant in case of conviction.[footnote: statutes of connecticut, ed. , p. .] south of new england there was no such radical departure from the common law, but there were before the revolution variations of considerable importance.[footnote: the _federalist_, no. lxxxiii.] instead of sending a case before an ordinary jury, the court has power, at the request of the parties, to direct a special jury to be summoned to hear it. this is seldom asked or granted unless the matter in controversy is of peculiar importance and difficulty. such a jury is more carefully selected, with the assistance of the parties, so as to make it sure that it will be composed of men exceptionally competent to decide a cause and such a cause. they are generally paid a larger compensation than ordinary jurors receive, the parties furnishing the additional sum required. prepayment of these sums may be and often is made a condition of granting a trial before such a jury.[footnote: eckrich _v._ st. louis transit co., missouri reports, ; southwestern reporter, ; lawyers' reports annotated, .] the requirement of unanimity on the part of the jury in civil causes, which we have inherited from england, is indefensible in principle. in practice, it has saved the institution from destruction. no one would feel himself safe if a majority of twelve men, of no special training in the study of legal rights, could strip him of his property. but among that number of persons there can hardly fail to be one or two of superior character and intelligence. these, with the aid of the judge, if he be one who fulfills properly his part of the proceeding, can generally lead the rest to a just conclusion. if the verdict is for the plaintiff, they may have to yield to some compromise as to the amount of damages. not infrequently this has been arrived at by calling for the separate estimates of each juror, adding them together and dividing them by twelve. it is a rough way, and not the fairest, but the wiser heads may consent to it to secure the concurrence of the weaker. in criminal cases, the importance of a verdict to the defendant is so great that unanimity may well be required. while there is a legal presumption that he is innocent until found guilty, this in practice is of little avail to him with the jury. they know from their every-day observation of affairs that there are few prosecutions which reach the final stage of a trial on the merits, under which there ought not to be a conviction. in several states verdicts in civil causes by a three-fourths vote are permitted. this radical change is not likely to become general. its best defense is that temptations to corruption are thus removed. so long as one juror, by refusing to concur with the rest, whether with or without reason, can prevent a verdict, there will be defendants seeking to prevent the recovery of what they know to be a just demand, who will be ready to buy a vote. in , seven of the bailiffs in attendance on the chicago courts were accused of lending themselves to such negotiations, and twenty men who had been jurors confessed that they had either taken or been offered bribes.[footnote: report of the new york state bar association for , .] the anglo-american jury is unique because it is nothing unless unanimous, and because it may render a general verdict, stating no reasons for the decision, on which a general judgment, save in exceptional cases, is entered as of course. in the early judicial history of the american colonies juries were less under the control of the judge than they are now.[footnote: see chap. xiv.] in some colonies they received no instructions as to the law, the chance of an unjust decision being guarded against in civil cases, as previously stated, by an absolute right in the losing party to claim a new trial before another jury. the general tendency of judicial practice in later years has been to emphasize the influence of the judge upon verdicts. this often extends to directing a verdict, peremptorily, for one party or the other, when the law is clear upon the facts claimed or admitted. still more often it takes the shape of a caution as to the weight that can properly be given to certain testimony, or an opinion as to what really are the controlling sources of evidence. without the guidance of an intelligent judge, a jury would frequently come to unfortunate and even unjust conclusions. that there should be such guidance is an essential part of the jury system, and it is generally given most effectually where the judges are the ablest and the most independent. the judge has at common law and by practice in most american states a right in his charge to comment on the evidence and intimate his opinion as to the weight which should or should not be given to any particular testimony. it is a right to be cautiously exercised, for juries are greatly influenced in their conclusions by remarks of that character. they feel that he is the head of the court, and there is a certain sentiment of loyalty to him as well as of respect for any one occupying the position in which they find him placed by the authority of the state. sometimes this power is abused. the judge desires to indicate a decided opinion. he fears that if he put it in plain words it might seem so strong as to indicate partiality, and furnish ground of appeal. he therefore uses language, perhaps in reference to the credibility of a witness, which looks fair and even colorless on paper, but by the tone or emphasis in which some vital word is uttered, or with the aid of a shrug or glance, carries to those whom he is addressing an unmistakable conviction that he means it to be taken in a certain sense. any such judicial action, however, is rare, and would be looked upon with disapprobation by the bar.[footnote: see metropolitan life insurance co. _v._ howle, ohio state reports, ; northeastern reporter, .] if the case is one which has been pressed by counsel especially upon the sympathies of the jury, such as a suit arising out of a labor strike, or by a widow to recover for an injury resulting in her husband's death, it is customary for the court to caution them in their charge that justice and not sympathy is their rule of duty.[footnote: bachert _v._ lehigh coal and navigation co., pennsylvania state reports ; atlantic reporter, .] the american colonies were settled at a time when the english criminal code was extremely harsh, and the english judges were disposed to administer it in such a way as to favor the crown. if the government promoted a prosecution, there was little hope for the defendant, except from the jury. the courts held that on criminal proceedings for publishing a libel it was for them to say whether the paper was libellous, and for the jury to decide only as to its publication by the accused. this was the occasion of the charles james fox libel act of , and of many constitutional provisions to the same effect in this country, under which juries, even in libel cases, can render a general verdict of not guilty. it was under the influence of these ideas, and in view of the fact that the colonial judge often knew no more law than the jury, that it became common in this country either to give a jury in a criminal cause no instruction as to the law at all or to charge them that they were judges both of the law and fact.[footnote: swift's "system of the laws of connecticut," , .] in some of the states, a charge to the effect last stated is now sometimes required by statute. a jury trial is a poor mode of doing justice, if there is a rule of law which, as applied to certain facts, should control the verdict, unless that rule of law be both stated by the judge, and so stated as to impress upon the jury that it is their sworn duty to apply it, if the facts which they may find to exist are such as to come under its operation. that they should be so instructed, even if declared by express statute to be the judges both of the law and the facts, is the prevailing opinion of american courts and jurists.[footnote: commonwealth _v._ anthes, gray's reports, ; sparf _v._ united states, u. s. reports, , .] it is of especial importance that the duty of juries to take the law from the court should be clearly stated to them in a country of written constitutions. most crimes are defined by statute. it is easy for the defendant's counsel to claim that the statute on which the prosecution is based is unconstitutional. if it be, the accused is entitled to an acquittal; but if the jury acquit him on that ground, and the ground is false, injustice is done. any such claim must be disposed of by the court, in order to give the constitution its due supremacy.[footnote: state _v._ main, conn. reports, , ; atlantic reporter, ; american state reports, .] mr. justice baldwin of the supreme court of the united states came to the bench, in , strongly inclined to minimize the power of the federal judiciary. in one of his first cases on the circuit, he charged the jury in a capital case that they were judges of both law and fact, and if they were prepared to say that the law was different from what he had stated it to be, were not bound by the opinion of the court.[footnote: united states _v._ wilson, baldwin's reports, .] it was not long before he found himself compelled to retreat from his position. a man was being tried before him for forging notes of the united states bank, and his counsel claimed an acquittal because the law incorporating the bank was unconstitutional, reading to prove it the veto message of president jackson, with the accompanying documents. to the jackson democrats on the panel this was quite an imposing argument, and mr. justice baldwin was obliged in his charge to sound the warning that for a jury to exercise the power of treating an act of congress as invalid was virtually to give us a country without a constitution and without laws.[footnote: united states _v._ sheve, baldwin's reports, , ; pennsylvania law journal for november, , p. .] in one of the southern states where it is a statutory right to demand instructions that the jury are the judges of the law, it was the custom of a certain trial judge of commanding presence, when called upon to give them, to say to the jury after he had done so, rising to his full height, "but, gentlemen, you must recollect that i have told you what the law that governs this case is, and to this i am the only witness who has appeared or could appear." it was one of the acute observations of alexander hamilton that under our american constitutions judges are less to be relied on by one who is attacked by the government, because those who direct the government are the choice of the people, and whatever they do is presumably popular. the judiciary, he said, was less independent here than in england, and therefore we had the more reason to cling to the trial by jury and their power to render general verdicts as our greatest safety.[footnote: people _v._ croswell, johnson's cases, , .] the states which guard these most closely are those in which there is the most jealousy of anything like a standing order, and the widest scope of popular election. georgia was the state, among the old thirteen, in which these characteristics were most marked. her first constitution of expressly threw the power of determining the law into the hands of the jury in every case, though they were allowed to ask the judges holding the court for their opinion, in which case each judge gave his in rotation. the party who lost his case could demand a new trial before a special jury. the ordinary jury were to be sworn to bring in a verdict according to law and the evidence, provided it be not repugnant to the constitution. the special jury were to be sworn to bring one in according to law and the evidence, "provided it be not repugnant to justice, equity, and conscience, and the rules and regulations contained in this constitution, of which they shall judge." apparently the meaning of this was that while the decision of the first jury as to the law could be revised by a second, that of the second, however contrary to the highest law, could not be. * * * * * resort is occasionally had to the assistance of a jury by a court of chancery for the better disposition of some disputed question of fact on which the equities of the parties depend. this cannot (except by force of some express statute) be claimed as a matter of right. the judge sends the issue to a jury for trial only if he thinks it would be helpful to him, but their verdict has no conclusive effect. he can adopt it or ignore it, at his pleasure. * * * * * the selection of jurors is a long process. the general plan is to commit to some local authorities in each city, town, or county the choice of a considerable number out of the inhabitants whom they may think suitable to serve in that capacity; then to have that list revised by some higher officials or persons specially appointed by the courts for the purpose, who must strike out a large part of the names; and finally to have those who are to be summoned to attend any particular term of court for jury duty chosen by drawing from the remaining names by lot. in many states special qualifications as to age, education, and intelligence are required. out of the jurors thus summoned to attend the court, there is a further choice by lot of those to try each particular case, subject to objections made by either party to any thus drawn, for proper cause. the statutes of the united states provide that jurors in the circuit and district courts shall be selected in each state from those qualified to serve in its highest trial courts, and in substantially the same manner. * * * * * the right to a jury trial is in civil actions often waived by both parties, in which case the facts as well as the law are determined by the judge. if not expressly claimed, it is by the rules of practice in some states treated as waived. the number of civil causes tried to the jury, taking the country as a whole, is declining. the decline is generally found to be quite accurately proportioned to the confidence felt by the bar in the ability and independence of the judge,[footnote: see paper by justice henry b. brown, in the american bar association report for , p. , on "judicial independence."] or perhaps to that confidence in the case of a former generation. tradition and custom have a large influence on whatever pertains to the practice of law. in several of the states a majority of the civil causes which might be tried to the jury are not: in louisiana very few are.[footnote: see chap. xxiv.] the tendency in england is also toward dispensing with the jury in ordinary civil trials. over a million cases are brought every year in the english county courts, and in not one in a thousand of them is there a jury trial, although if the matter in demand is over £ in value either party may claim it.[footnote: maitland, "justice and police," , , . for small cases the jury is one of five, but their verdict must be unanimous.] criminal trials, except in case of trivial offenses, it is generally necessary to hold before a jury, by express provisions of the constitution.[footnote: see cooley, "constitutional limitations," .] during the colonial era the defendant was allowed in massachusetts to waive a jury, even in capital cases.[footnote: proceedings of the colonial society of massachusetts, vi, .] statutory permission to the same effect has since been given in some states where there is no constitutional provision to the contrary.[footnote: state _v._ worden, connecticut reports, .] in civil causes, the right to demand a jury in petty cases has been restricted in a number of states.[footnote: in new hampshire, for instance, a constitutional amendment was passed in denying it in cases involving less than $ , unless title to land is involved.] at common law the judges were accustomed and allowed to put great pressure upon juries, if necessary, to force them to unite in rendering a verdict. they could be kept together without food or beds all night, and even carted about from one court town to another until they were ready to report an agreement. very little of this practice remains in the united states. in some states they are allowed to separate and go to their homes at night during the trial even of a capital case, and while deliberating over their verdict they are generally supplied with food and other comforts. the right of trial by jury was limited at common law to trials of what are called "issues of fact;" that is, of the truth of a statement of material facts made by one party and denied by the other. if, therefore, in a civil cause a judgment has been ordered for the plaintiff without a verdict, as where the defendant has failed to appear and answer, it is for the court to say for the recovery of what amount of damages the judgment shall be rendered. it may inquire into this by the aid of a jury, but such a jury need not consist of twelve. the inquiry may also be conducted by the judge alone.[footnote: dyson _v._ rhode island company, rhode island reports; atlantic reporter, .] in most of our states this common law practice has been abandoned, and damages, in cases of the kind above described, would be assessed by a jury of twelve. this is because otherwise a defendant who did not dispute his liability for the act complained of and only wished to reduce the amount of damages claimed in the writ might, after declining to appear and plead, come forward with a motion to be heard by the court on the question of damages. a motion of that kind would naturally be granted, and the effect would be to transfer the decision of the only actual controversy between the parties from a jury to a judge. in connecticut the old practice was maintained until , and the courts held that on the hearing as to the damages, in actions where there had been no contract between the parties to fix the rule of assessment, the defendant might show, if he could, that only nominal damages should be given, because really the plaintiff had no cause of action at all.[footnote: lennon _v._ rawitzer, conn. reports, ; atlantic reporter, .] the result was that many suits arising out of railway accidents in that state were brought against the company in fault in other states in which process could be served to compel its appearance, and where a full jury trial could be secured. the legislature finally interposed and gave the plaintiff a right to claim a trial by jury, notwithstanding a default.[footnote: public acts of , .] * * * * * chapter xiii formalities in judicial procedure the sessions of a court of record of general jurisdiction are daily opened by a formal proclamation made, at the command of the judge, by the crier or sheriff's officer in attendance. in many states the ancient english style of expression has been preserved, which dates back to the norman conquest, and begins with a cry of "_oyez, oyez, oyez_." these proclamations are often closed with such words as (for instance) "god save the commonwealth of rhode island and providence plantations." the adjournment from day to day is announced in a similar but less elaborate manner. many courts hold a certain number of stated "terms" annually, the first day of which is fixed by statute, and each of which is adjourned whenever the business that may come before it is finished, lasting sometimes but a few days and sometimes months. in a number of states such terms are opened by prayer offered by a minister of religion, invited in for the purpose by the sheriff or court attendant. no regular chaplain is employed, and one term may be opened by a presbyterian minister and the next by a roman catholic priest. in some of the smaller counties in massachusetts the sheriff or his deputy daily escorts the judge to and from the court house, in accordance with what has been the usage from colonial times. formerly it was the practice in new england to ring the bell of the principal church in the town daily at the hour when court opened.[footnote: this was continued in connecticut until the last quarter of the nineteenth century.] in many courts it is the custom for all present to rise on a signal from the sheriff or marshal when the judge enters the court room to take his seat on the bench. this is the general usage in the federal courts and in the appellate courts of states. in the latter a formal proclamation is often made by the sheriff to announce the coming of the judicial procession, concluding with a "god save the commonwealth." in some states formal bows are interchanged between bench and bar as the judges take their places, after which the court is opened by the customary proclamation and the bar then requested by the judges to resume their seats. the rules of official precedence are strictly observed in appellate courts. in entering the court room the chief justice advances first, and his associates follow in the order of the dates of their commissions, the senior associate justice taking his seat on his right, the second in seniority on his left, the third in seniority on the right of the senior associate justice, and so on; the junior in commission occupying the end seat on the left of the bench. the members of the supreme court and of the circuit court of appeals of the united states have always worn black silk gowns. the members of the supreme court of south carolina have worn them from a time antedating the revolution. the new york court of appeals in , at the request of the bar, preferred through david dudley field, adopted the practice,[footnote: in it was extended to _nisi prius_ courts held by justices of the supreme court.] and the same thing has since been done by appellate courts in several other states. in one of these, massachusetts, they had been worn in the colonial era. about , chief justice hutchinson introduced gowns and cassocks there on the supreme bench, and also gowns, bands, and tie-wigs for lawyers who were admitted as barristers of the superior court.[footnote: "life and works of john adams," ii, , note, .] the latter soon abandoned these, but gowns were retained by the judges until .[footnote: publications of the colonial society of massachusetts, v, ; amory, "life of james sullivan," i, , note.] in north carolina gowns and bands were worn by the members of the supreme court in .[footnote: proceedings of the colonial society of massachusetts, vi, .] in new jersey, the bar were at one time required to assume them by a rule of the supreme court, but the rule was vacated in . at the first opening of the supreme court of the united states, in , chief justice jay wore a gown with salmon-colored facings on the front and sleeves, of the style then used by doctors of laws created by the university of dublin, from which he had received that degree.[footnote: u. s. reports, appendix.] it has not since, in that or any other american court, been the practice for judges to wear academic hoods or other decorations on the bench. * * * * * counsel, in addressing the court, rise and begin with "may it please the court," "may it please your honor," or, before a court in bane, "may it please your honors." the term "you" would never be used to a judge on the bench; but that of "your honor" would be employed. great pains is taken by the officers in attendance to prevent anything on the part of the audience that could in any way disturb the proceedings, such as loud conversation or unnecessary moving from place to place. there is a good deal of antique form in the manner in which, under the direction of the clerk, prisoners are arraigned and juries are made up or "impanelled" for the trial of a cause. in charging a jury, the judge commonly rises and the jury do the same. when sentence is pronounced on a conviction for crime the prisoner is required to rise. in cases of capital offenses, he is asked by the judge if he has anything to say why judgment of death should not be pronounced against him. it is highly improbable at that stage of the cause that he should have anything to urge which has not been already considered, but the ancient english practice in this respect is still followed, for it is not absolutely impossible that something may have occurred since the verdict that would affect the judgment. * * * * * chapter xiv trial courts for civil causes the great bulk of litigation is confined to the civil trial courts, that is, to courts for the trial of ordinary causes between man and man. it also has its seat in the trial courts of the states, for not only is the judicial power of the united states confined by the constitution within narrow limits, but these have been made still narrower by the action of congress from time to time. most lawsuits never get to trial. the defendant generally has no defense, and is well aware of it. the suit is brought to obtain security or force a settlement. he employs no lawyer and lets things take their course. the result is a judgment against him for default of appearance; for if one who has been duly summoned to court to answer to a demand fails to attend and answer, the court assumes that there is no answer that he could make, and disposes of the cause on such evidence as the plaintiff may produce. on the other hand, the plaintiff often does not care for a judgment. he has become satisfied that, if he got one, he could not collect it, or he has availed himself of the suit to secure a compromise of the matter in demand on satisfactory terms. in such case, or if, after bringing an action, he becomes convinced that he cannot maintain it, he withdraws it, or if the defendant insists, suffers a judgment to go against him, called a nonsuit. in some states the writ or process by which the action is begun must be accompanied by a full statement of the particular nature of the plaintiff's claim. in others this is not required, and such a statement is only furnished when specially ordered by the court. if the case goes to trial on the merits, it will be on such a statement furnished by the plaintiff, and on some paper filed by the defendant by way of answer. occasionally these pleadings, as they are called, are such as to call out further statements or claims by way of reply and rejoinder. their form is now generally regulated by statutes, and is much the same in most of the states, being based upon a system known as "code pleading," which originated in new york about the middle of the nineteenth century. it is simpler and less technical than the system under the common law which it replaced. if the defendant has any objections to the maintenance of the suit, on such a ground as that it is brought in a wrong court, or a wrong way, these are first disposed of. then, if he asserts that the plaintiff on his own showing has no case, or if the plaintiff asserts that the defense set up is insufficient on its face, this being a question of law, the judge decides it without the aid of a jury. when, however, the facts are in dispute, a jury must be called in, if either party claims it, in an action not of an equitable nature, when the matter in controversy is one of any considerable amount. in this country we adhere to the old common law mode of taking exceptions to the legal sufficiency of written pleadings. this was by filing a paper called a "demurrer," in which the particular objections were set out, unless, as was frequently the case, they were so fundamental as to be apparent at the first glance. in many states, however, the objections must always be particularized. in england demurrers are no longer used. her judicature act of put an end to the common law system of pleading, reconstituted her whole method of judicial procedure, and authorized the judges to make rules and orders from time to time to adopt the new scheme to convenience in practice. one of their orders, passed in , abolished demurrers. in place of them, the party desiring to have the benefit of points of law arising on the face of the pleadings may state his point to the court and ask to have it set down for separate argument before proceeding to a trial of the cause on the facts. american lawyers are not satisfied with the reasons which led to this change. they were that the old practice made it a matter of right to claim a special hearing on a law point, while the new order would leave it to the discretion of the judge. the english judges are few and able. such a plan may work satisfactorily under their administration, but it might often lead to useless delays and expense if introduced in a country where judges are so numerous and of such different qualifications as is the case in the united states. our trial courts are now generally held by a single judge. until the latter half of the nineteenth century it was not uncommon to have three judges sit together in county or city courts. one of them would be a lawyer and the others not.[see chap. viii.] in cities the two side judges were generally aldermen. a tribunal thus constituted is better adapted in some respects to trying questions of fact than a single judge. it is a jury of three acting by a majority. but for the conduct of a jury trial it is unwieldy, slow-moving and uncertain. in most cases any question of law or legal practice will be virtually decided by the presiding judge, but he will usually pause to go through the form of consulting his associates. occasionally they will overrule him, and in such case it will be apt to be by a misunderstanding or misapplication of law. the expense of three judges, however moderate the compensation, has also weighed in favor of an abandonment of the system. it naturally results in paying too little to the chief judge, and too much to the others; and always costs more than it would to pay one man a sufficient salary. we have not the need of several judges to hold a trial court, which is felt in many countries. they use them for a purpose which our juries supply. for similar reasons americans have not seen any occasion for organizing special courts, such as are the german _gewerbegerichte_ and _kaufmannsgerichte,_ to try special classes of causes. a jury of twelve will be apt to contain some men who will adequately represent those interested in any ordinary industrial or commercial controversy. petty suits not of an equitable nature must generally be brought before a justice of the peace, who disposes of them himself, both as to matters of evidence and fact, but subject to an appeal to a higher court in which a jury trial can be had. in some states he can summon in a jury of six and leave the facts to their determination. the pleadings before him are usually in the same form as in the higher courts. in jury trials of civil causes the judicial function is, so far as possible, divided into two distinct parts. all questions of pure law are decided by the judge alone. all questions of pure fact are decided by the jury alone. all questions turning on the application of the law to the facts are decided by the jury under instructions from the judge as to what applications of the law it would be competent for them to make under the particular circumstances which they may find to have existed. the judge also has a large discretionary power in minor matters arising in the course of the suit. it is for him to say when it shall be tried; whether the written pleadings are in proper shape, and if not whether they may be amended; and in what order and within what limits the evidence may be introduced. no countries in the world have so artificial a set of rules of evidence as england and the united states. this is because in no other country is the right to a jury trial so extensive. many of these rules date back to the early history of the english common law. it was a time of general illiteracy. the ordinary juror could not read or write. his powers of reasoning and discrimination had had little or no cultivation. it was thought dangerous to allow him to listen to any evidence that was not of the clearest and best kind. it was thought necessary to bring all witnesses in person before him and let him hear their voice and look into their faces in order to give him the fullest possible opportunity to determine whether their testimony was worthy of credit. but while our rules of evidence were devised for jury trials, they are applied with equal rigidity in all trials. a jury may be waived; a single judge may hear the cause; and yet he must rule out of consideration whatever would have been inadmissible if it had been made the subject of a jury trial. much that in other countries is helpful in reaching a just conclusion is in this manner shut out in american courts. a man of the highest character, for instance, may say before twenty listeners that he saw a certain person shoot and kill another, and state how the whole thing happened. the person thus accused is sued for damages under a statute permitting such a remedy by the representatives of the man shot. before the trial the witness of the act dies. he was the sole witness. there is no other testimony to be had. under our system of practice, those to whom the statement was made cannot be allowed to testify to it. such testimony would be "hearsay." it would put before the jury two questions, first whether such a statement was really made, and then whether, if made, it was true. the law of evidence says that they ought not to be perplexed by questions upon questions. the tendency of american legislation of late years has been strongly toward removing some of these artificial bars to getting at the truth. the common law thought it dangerous to allow a jury to hear any witness not under oath, nor under such an oath as implied his belief in the existence of a god, or any witness having a pecuniary interest, in the event of the cause. an atheist or an agnostic could not testify. the plaintiff and the defendant could not. these restrictions have been almost everywhere repealed. the trial judge has also, and necessarily, a large discretionary power in excluding testimony which has only a remote bearing on the case, and in limiting or extending the examination of a witness so as on the one hand to prevent needless repetition, and on the other to get out the truth and nothing but the truth. he has similar authority to restrain the arguments of counsel within reasonable limits. a trial judge suddenly called upon to make a ruling on some point of law in the progress of a trial may make a wrong one. if so, he may have an opportunity to correct it at a later stage of the proceeding. he has admitted evidence which should have been excluded. in his charge to the jury he may instruct them to disregard it, and his error will thus be cured. he has excluded evidence which should have been admitted. before the case is closed he can change his ruling and allow it to come in. but so long as any ruling stands unchanged, whether it is in accordance with law or not, it is the law of the case for the purposes of the trial. counsel may endeavor to procure a reconsideration of the question, but they cannot ask the jury to adopt a different view from that taken by the judge. their only remedy is by a motion for a new trial, after the verdict, or proceedings in error before a higher court. * * * * * trial courts generally sit during a greater number of hours in the day than appellate courts. this is particularly true when they are held for short terms in a country shire town. in the larger cities where they sit during a large part of the year they generally have established hours from which they rarely depart, such as from ten in the morning to five in the afternoon, with a recess of an hour for lunch or dinner. formerly nine o'clock was a more common hour for opening court. in new york in the sittings were from eight to three, when there was a recess of two hours for dinner, and then from five till some time in the evening, occasionally as late as ten.[footnote: kennedy, "memoirs of william wirt," ii, .] the modern tendency everywhere is toward a shortening of the hours of daily session, especially when an official stenographer is employed. the clerk keeps a docket-book in which each case returned to court is entered and numbered. the entry reads thus: john doe smith vs. richard roe jones. doe is here the plaintiff and smith is the attorney who brought the suit for him. roe is the defendant and jones is the attorney who appears in his behalf. if there be more than one party on either side the words _et al._ will be added, signifying as the case may be, _et alius, et alii_ or et alium,_ or should there be three or more defendants, _et als_, signifying _et alios_.[footnote: another book is kept for criminal cases, which are docketed as "the state _v._ john doe," in others as "the people _v._ john doe," and in the federal courts as "the united states _v._ john doe."] from this docket trial lists are made up for each term or session of court. assignments for trial are sometimes made by the court and sometimes arranged by the bar subject to the approval of the court. several cases are commonly set down for each day, so that if one falls out another may be ready, and in every case so assigned the parties must be prepared at their peril to appear and proceed at any minute when called upon. in courts having a large docket of cases it is customary to set apart one day in the week for the disposition of incidental motions and for arguments on points of law. when a case is called for trial the plaintiff's counsel opens by stating its nature and the main facts as set out in the declaration or complaint which he expects to prove. sometimes the pleadings on both sides are read at length. the plaintiff's witnesses are then examined orally, after the examination of each an opportunity being given for his cross-examination by the other party. the testimony of witnesses whose attendance cannot be had, which may include any living out of the state (or, in the federal courts, over one hundred miles from the place of trial), or who are infirm or sick, may be secured by previously taking it down out of court in the form of a written deposition, under oath, before a magistrate. in such case the adverse party must have such notice as to enable him to be present and cross-examine the deponent, or to file written cross-interrogatories. depositions are received in the same manner and subject to the same objections as oral testimony. in cases in equity a considerable part of the testimony is generally presented in written form, either by depositions of the kind described or certified by a special officer appointed by the court for the purpose, who may be called an "examiner." when the plaintiff's case has been thus presented, his attorney announces that he "rests." the defendant's attorney then states what he proposes to prove, and produces his evidence, at the close of which the plaintiff has the opportunity to meet any testimony so produced as to points not covered by the plaintiff's case as presented "in chief," by rebutting testimony. should there be any new point brought out in the latter which the defendant had not anticipated in presenting his case (which rarely happens), he may now be allowed to introduce further testimony as to that. at the close of the evidence the plaintiff's counsel argues for his client; the defendant's counsel replies; and the plaintiff's counsel is then heard in answer to anything which has been said in behalf of the other side. if the trial has been had before a judge without a jury he then commonly takes the written pleadings and makes up his decision at his leisure; but if the case is plain may give final judgment on the spot. if the trial has been before a jury the parties argue as to facts in dispute to them, but as to the law upon these facts to the court.[footnote: see chap. xii.] in some states the arguments on the latter question are made before those on the former, and written requests or "prayers" for instructions to the jury as to the law are submitted to the court, upon which it passes before the jury are addressed. in most states there is no such division of argument; judge and jury are addressed in turn during the same speech, and counsel first know what view of the law is taken by the court when the judge gives his final charge. in every jury trial, after all the evidence is in and the arguments concluded, it is the duty of the court to instruct the jury as to what the precise controversy is and what disposition of the cause it would be permissible for them to make. if in view of facts which are undisputed by either party there can be in law but one conclusion, the judge should direct them to render a verdict accordingly. but if the facts might fairly be found as they are claimed to be by either party, he instructs them as to the law applicable to the facts so claimed by each. he can, at common law and by the practice in most states, give his own opinion as to the weight of evidence on any point in controversy. the common law requires unanimity on the part of the jury before they can return a verdict. if it cannot be had they report a disagreement, and the case stands over for another trial. if they agree upon a verdict, it must, to be effective, be accepted by the court. this acceptance is ordinarily a matter of course, but if the verdict is plainly contrary to the evidence or to the law as laid down in the charge, it may be set aside and a new trial ordered. if it gives damages which are plainly excessive, the judge may set it aside, unless the prevailing party enters a _remittitur_ of a certain amount, that is, formally stipulates on the record that the verdict shall stand only for such sum as the judge may have thus indicated to be what seems to him to be the utmost limit that ought to be allowed. in some states, if the verdict is unsatisfactory to the judge, though not so manifestly against the evidence that he would be justified in setting it aside, he may return the jury to a second consideration of the cause. when a verdict is accepted judgment is rendered in accordance with it. to this rule there are, however, certain exceptions. it sometimes happens that a verdict is returned for a plaintiff whose case as stated in his pleadings is one which in law is no case; the defendant having failed to take this objection and made his contest only on the facts. he then can ask the court not to render any judgment upon it. this is technically called a motion in arrest of judgment. again, the verdict may be rendered, by reason of the state of the written pleadings, on some immaterial point, in favor of one party, when there are other points of controlling importance in favor of the other, on which it has been admitted that he is in the right. in such case the party against whom the verdict is rendered may ask for judgment in his own favor notwithstanding the verdict. verdicts are ordinarily given directly for the plaintiff or the defendant. printed blanks for such verdicts, one headed "plaintiff's verdict," and the other "defendant's verdict," are often handed to the jury when they retire, to choose from according as they may find the facts. such a verdict is called a general verdict. occasionally one of a different form is returned at the request of counsel and by the permission of the court. this is termed a "special verdict," and sets forth the particular facts as found by the jury in detail, without finding the ultimate issue for either party. this is only proper when such a finding would have been simply a legal conclusion from these facts. a special verdict leaves it to the court to apply the law and render judgment as that requires. in many causes the testimony is all taken out of court, before some officer or arm of the court, who only reports his conclusions from it as to the matters in controversy. this is a common practice in equity, the case being sent to a "master in chancery" for this purpose. in cases of a common law nature the consent of both parties is generally required; but with that any cause may be disposed of before an arm of the court commonly termed an "auditor," "referee" or "committee." the report of such a hearing sometimes is confined to the facts which are found to have been established. in other cases it may extend to a provisional decision of questions of law arising on those facts. the ultimate decision of any question of law is always for the court, and if it accepts the report it is its duty to draw the proper legal conclusions from the facts established. as to whether the report shall be accepted, and as to the legal questions arising upon it, the parties have a right to be heard in court. improper or irregular conduct on the part of the officer making the report may be shown as a cause for rejecting it. if it is accepted the facts found generally stand as conclusively established. equity causes are generally tried before a single judge, who decides all questions both of fact and law, proceeding in the same manner as in a common law cause in which a jury has been waived. * * * * * chapter xv probate courts the english common law regarded wills of lands as in the nature of conveyances, the due execution of which, if ever called in question in a lawsuit, was to be established then and there; but if never so called in question, need never be established at all by any judicial proceeding. wills of personal property, on the other hand, were to be proved as soon as might be before an ecclesiastical court, and unless so established were ineffectual. this difference in the treatment of the two kinds of wills was due to the legal principle that so far as personal rights and obligations were concerned the personality of the dead was, after a certain fashion, continued in existence by attributing personality to their estates. these were to be administered by some one as the "personal representative" of the former owner. this personal representative discharged his personal obligations so, far as there might be personal estate or rights of property sufficient for the purpose. he was styled an executor if designated by will; an administrator if there were no testamentary appointment. a man's lands, however, went upon his death straight to his heirs unless he had by will conveyed them to some one else. that when he died they were part of his estate did not charge them with the fulfillment of his personal obligations. for the discharge of these the creditor must resort to his personal representative. his heirs occupied no such position. the administrator was always appointed by an ecclesiastical court and rendered his accounts to it. long use and the existence of a state church with a regular judicial establishment, made such a system tolerable to the english people; but the new conditions under which those of them came who planted the american colonies made it both intolerable and impossible here. while most of the colonies had an established church, none had bishops or bishops' courts. the bishop of london claimed a certain jurisdiction over all, but in none was it recognized as extending over the estates of the dead. in the crown colonies the instructions to the governors generally referred to it as sanctioned by the government but not as extending to the probate of wills. some of the governors were given _ex-officio_ full probate powers.[footnote: "the american jurisdiction of the bishop of london," transactions of the american antiquarian society, vol. xiii, , , .] the same considerations which early led to the general adoption of a recording system for deeds of land in all the colonies extended to wills, since they also might convey it. such records, to attain their purpose, had to be public in the fullest sense. nothing was allowed to go upon them which had not some kind of authoritative sanction proceeding from the state. deeds were first to be acknowledged before a magistrate. as to wills, the practice finally came to be to require them to be established once for all as the act of the testator by a court invested with special jurisdiction for that purpose, and also over all estates of those who die leaving no will. this, if organized for that special function particularly, is ordinarily styled a court of probate, occasionally a surrogate's court or orphans' court. it is sometimes given, and sometimes not given, a certain authority over the real property within the state while the estate is in settlement. all real estate left by a decedent is ordinarily made, by statute, liable for his debts in case of a deficiency of personal property, except so far as it may be charged with a right of dower. even if it has gone into the possession of an heir or devisee, the proper probate court can order its sale for this purpose, if it should appear on the allowance of the administration account to be necessary. the formal establishment or "probate" of a will does not affirm the validity of its provisions. it simply adjudges the instrument to be a will legally executed by one competent to make it and who had a home or property within the territorial jurisdiction of the court. commonly, if not universally, an opportunity is given, either in the first instance or by appeal to a higher court, to have these questions tried before a jury. the succession of particular persons to the property of the dead is not a matter of natural right. it rests upon positive law and is regulated by the authority of the government at its pleasure.[footnote: united states _v._ perkins, u. s. reports, .] probate procedure is therefore wholly determined by local legislation and practice. in many states, probate jurisdiction belongs to the county courts. in others it is invested in local courts for lesser subdivisions of territory with the purpose of cheapening the settlement of estates. in a few these local courts are very numerous, all the towns of the state being distributed into small groups and each furnished with its probate court, the judge of which, in many instances, has had no legal training, and receives no compensation except stated fees for such business as may actually come before him. an appeal is given from his orders to a higher court of general jurisdiction. in practice such a system works fairly well. if there are suitable lawyers in the group of towns forming a probate district, one of them who belongs to the prevailing party is generally made the judge if he will accept the office, and if he fills it well is apt to be re-elected, whichever party may then be uppermost. if a lawyer is not appointed and a case of any difficulty presents itself, the judge will probably consult some counsel in whom he feels confidence, and who will be sufficiently flattered by the request to advise him without making any charge for it. the proper seat of administration is in the state and the local subdivision of the state where the dead man belonged. proceedings there affect all his personal property wherever it may be found, and generally his real estate situated anywhere in the state. real estate in another state can be affected by probate proceedings only if they take place there, by its authority. for that purpose "ancillary" administration is often taken out, that is, one designed to serve the interests of the general succession as administered in the seat of the principal administration. since the right of a personal representative to act for the estate of the dead comes from the positive law of the particular sovereign having the proper jurisdiction, and since no law of a particular sovereign can be enforced, by virtue of his power or anything dependent on it, outside of his territorial jurisdiction, it follows that no executor or administrator can of right maintain a suit, as such, out of the state from the laws of which he derives his authority. he may take possession of the goods of the estate found in another state, or collect debts due from its citizens if no objection be made, but if forced to claim the aid of judicial process he must first prove his title there before the appropriate probate court by taking out ancillary administration, in which case he will probably be compelled to give security for the proper discharge of his duties under such appointment. * * * * * chapter xvi bankruptcy and insolvency courts it is within the power of congress to assume the exclusive regulation of bankruptcy proceedings throughout the united states.[footnote: u. s. constitution, art. i, sec. .] there is in this country no real difference in meaning between the terms bankruptcy and insolvency. each denotes a _status_ into which one unable to pay his debts, as and when they fall due, may put himself, or be put by his creditors. the remedy is not confined to any particular classes of persons, and no more fault is implied on the part of one who is adjudged a bankrupt than on the part of one who is adjudged an insolvent. during most of the history of the united states there has been no uniform law on the subject of bankruptcy for the whole country. three bankrupt acts were enacted by congress from time to time during the first century after the adoption of the constitution. each followed some serious financial crisis, and was repealed not long after the immediate effects of the crisis had passed away. they were adopted as a kind of [greek: seisachtheia] to help insolvent debtors to get on their feet again. a later act passed in is still in force,[footnote: u. s. statutes at large, ; _id._, .] and as it contains many provisions which have been found useful by creditors as well as by debtors, it is not unlikely to remain permanently upon the statute-books. the prosperity of the united states rests mainly on the absolute free trade which exists between the several states. that necessarily results in innumerable credits extended by citizens of one state to those of others, and in immense property interests in each state belonging to non-residents. in case of insolvency full justice can not be worked out except through the legislative powers vested in the united states. the act of allows any one except a corporation to become a voluntary bankrupt. practically any insolvent debtor can be thrown into involuntary bankruptcy, except wage earners, farmers, incorporated banks, or business corporations owing less than $ , . this is so even if a state court of insolvency has already taken charge of his affairs; and if that has occurred it is of itself a sufficient reason for bankruptcy proceedings. petitions in bankruptcy are preferred to a district court of the united states. each bankrupt estate is put in charge of one or more trustees. they can maintain actions to recover or protect it, as a general rule, in the courts of any state as well as in those of the united states.[footnote: see bardes _v._ bank, u. s. reports, .] their title does not extend to anything which by the laws of the state where the bankrupt belongs is exempt from his creditors. such exemptions differ greatly in different parts of the country. in some states certain property of the value of $ , may be exempt; in others the amount which the debtor can retain is comparatively trifling. there is, therefore, no uniformity in the result; but there is, nevertheless, uniformity in the rule under which the results are reached, and this is enough to support the validity of this provision of the statute.[footnote: hanover national bank _v._ moyses, u. s. reports, .] the bankrupt may propose a composition to his creditors, and it may be accepted by a majority of them in number if they also hold the major part of the indebtedness. if such an acceptance is confirmed by the court the entire indebtedness is discharged when the total amount to be paid (including whatever is necessary to discharge all preferred claims) is deposited in court. a discharge may be granted to every honest bankrupt (whether his estate pays anything to his creditors or not), which clears him forever of all his ordinary debts. it does not apply to taxes nor to liabilities for certain wrongs of an aggravated character; nor can two successive discharges in bankruptcy be procured within six years unless the first was the result of involuntary proceedings. whenever there has been no national bankruptcy law in existence, the states have been held to be free to pass such insolvent laws as they might think proper. during the existence of a national bankruptcy law no state insolvent law can be of any force which covers the same field.[footnote: ogden _v._ saunders, wheaton's reports, ; tua _v._ carriere, u. s. reports, ; ketcham _v._ mcnamara, conn. reports, , ; atlantic reporter, .] its operation is excluded or suspended as a necessary effect of the enactment of the act of congress, although that contains no express provision to that effect. most of the states have on their statute-books provisions for a permanent system of insolvency proceedings. in some they are as favorable to the debtor as the united states bankrupt law of : in more they are less favorable. generally such proceedings are brought before a court of special jurisdiction, constituted both for this purpose and for the settlement of the estates of deceased persons and of those who are incapable of managing their own affairs. in the older states it is often made a condition of a discharge that the creditors shall have received a certain percentage of their claims. the relief which the states are competent to give either to debtor or to creditor is very inadequate. the discharge of the debtor is of no avail except as against those creditors who were subject to the jurisdiction of the court. none are so subject except those belonging in the state, or actually taking part in the proceedings. every bankruptcy or insolvency proceeding is a great lawsuit. the discharge is the final judgment in it. it can bind none who are not parties to the action. only those are parties who were bound to appear, or who did appear. no one belonging to any other state or country can be bound to appear, unless in the rare case of a personal service of proper process upon him, made while he was within the territorial jurisdiction. any creditor, wherever he may reside, who files a claim against the insolvent estate, or receives a dividend from it, makes himself a voluntary party. but as against a non-resident who keeps aloof and takes no part in the proceedings the discharge is worthless, even in the courts of the very state by authority of which it was granted. on the other hand, the creditor gets less aid from the state courts than a trustee in bankruptcy. the trustee in bankruptcy can sue in any court in the country in which the debtor could have sued for the same cause of action. the trustee or assignee in insolvency, acting under the appointment of a state court, can only sue within that state, unless his title has been fortified by a conveyance from the insolvent which would be good at common law. so far as his title rests on a law, by which it was taken away from the bankrupt and vested in him, it is ineffectual wherever that law is ineffectual; and the law of no sovereign is effectual of its own force outside of his territorial jurisdiction. *[footnote: booth _v._ clark, howard's reports, , ; hale _v._ allinson, u. s. reports, .]* if, therefore, as is commonly true in estates of any magnitude, part of the assets can only be recovered by suit in other states, there must be ancillary insolvency proceedings there, to clothe the principal assignee with the right of action. should the insolvent be the owner of land in another state, the title to this can only be transferred in accordance with its law, and a foreign assignment in insolvency will be wholly ineffectual. nor will ancillary proceedings in insolvency be allowed to prejudice the rights of citizens of the state in which they are instituted to any security which they might otherwise have for debts due them from the insolvent.[footnote: ward _v._ conn. pipe mfg co., conn., ; atlantic reporter, ; lawyers' reports annotated, ; am. state reports, .] the right, however, of every sovereignty to postpone claims under a foreign bankruptcy or insolvency to the interests of its own people is modified in the united states by the constitutional provision that the citizens of each state are entitled to all privileges of citizens in the other states.[footnote: blake _v._ mcclung, u. s. reports, .] * * * * * chapter xvii criminal procedure the american system of criminal procedure rests on the principle that the government should decide on the propriety of beginning all prosecutions, and then should bring and maintain, at its own expense, such as it may deem proper. the first step ordinarily is the filing by an informing officer of a written complaint in the office of some court or with some magistrate, upon which a warrant of arrest issues as of course. in some jurisdictions original informations in a trial court, as distinguished from indictments, can only be filed by leave of court first obtained. such is the rule in the courts of the united states.[footnote: united states _v._ smith, federal reporter, .] there is no such preliminary consultation with judicial officers as characterizes european criminal procedure. the prosecuting officer assumes the entire responsibility of initiating the prosecution and of giving it the particular form that it may assume. he commonly acts only on such matters as are officially brought to his attention by constables or other officers of police. it is rare that the party injured by an offense complains to him personally. hence many of the lesser offences go unpunished, particularly in large cities, because the police fail to report them, on account of favoritism or corruption. the warrant refers to the complaint for its support. between them, the offense charged, the person accused, and the thing to be done by the officer who is to make service must be particularly stated. "general warrants," that is, warrants of arrest or seizure, not specifying the person who is to be arrested, nor the particular place where the seizure is to be made, are expressly forbidden by the fourth amendment of the constitution of the united states as respects federal courts, and as respects those of the states, are generally prohibited by their constitutions. any private individual may, by night or day, arrest without warrant one whom he sees committing a felony or a breach of the peace or running off with goods which he has stolen. if he knows that a felony has been committed and has reasonable grounds for suspecting that it was the act of a certain person, he may arrest the latter, although without personal knowledge of his guilt. a sheriff, constable, or other peace officer may arrest without warrant any one whom he has reasonable ground for suspecting to be guilty of a felony, although it may turn out that no such felony was ever committed. for any ordinary misdemeanor he could not, at common law, arrest without a warrant, unless he personally witnessed the wrongful act or was near enough to hear sounds indicating what was being done. in practice, officers of local police arrest freely on mere suspicion and with no personal knowledge either that any offense has been committed or that, if any, the person taken in charge was connected with it. the only risk which they run is of an action for damages, and that is slight. if one were brought and they showed that they acted in good faith and not wholly without cause, the amount recovered would probably be very small, and in any case it would be difficult to collect a judgment against one of them, as they are generally men of small means. in some of the original states a justice of the peace or higher magistrate, in whose actual presence certain misdemeanors were committed, could deal with the offender summarily and sentence him to a fine without any written complaint or warrant. this was a survival of colonial conceptions of the majesty of official station, and the statutes justifying the practice soon became practically obsolete. it is one of the distinguishing features of the english system of criminal procedure that any private individual can initiate a criminal prosecution, and that prosecutions are generally instituted in that manner. in doing so, he exercises a right belonging to every member of the general public, and the proceeding is, in that point of view, a public one.[footnote: see maitland, "justice and police," .] at common law there were but two guaranties against thus bringing forward frivolous or malicious accusations. the complainant was obliged to verify his charge by oath, and he was liable to a civil action if the defendant was acquitted and it appeared that there was no reasonable ground for the prosecution. in some of our states, also, if any private individual files a complaint under oath before a proper magistrate accusing another of a properly specified offense, a warrant of arrest may issue. in many there are statutes authorizing _qui tam_ actions to be brought by any one. these are actions to recover a statutory penalty prescribed for some wrongful act in the nature of a misdemeanor. the term _qui tam_ comes from the latin terms of the old english writ used for such proceedings, in which the plaintiff describes himself as one _qui tam pro domino rege quam pro seipso in hoc parte sequitur_. the plaintiff is styled "a common informer," and his action is for the joint benefit of himself and of the state, or of some other public corporation or officers designated by the statute. he is sometimes given an option to sue in the form of a civil action, or by an information and the use of criminal process. in proceedings of the latter description a warrant issues upon which the defendant is liable to arrest.[footnote: canfield _v._ mitchell, conn. reports, .] the action may, under some statutes, be brought in the name of the government, though by and at the cost of the informer. in such case, unless it is otherwise provided, he retains the exclusive management of the cause as fully as if he appeared as the sole plaintiff on the face of the record. if the plaintiff obtains judgment, and collects the penalty, he must pay half of it over to the government. if he fails, he is personally liable to the defendant for the taxable costs of the action. under such a statute, a public prosecuting officer can sue for the entire penalty, whenever no action has been brought by a private individual. the tendency of modern american legislation is toward placing the collection of penalties for misdemeanors wholly in the hands of public officers. the _qui tam_ action is certainly a cheap mode of enforcing laws, and one likely to be pressed to a prompt issue. as observed by the late judge deady, "prosecutions conducted by such means compare with the ordinary methods as the enterprising privateer does to the slow-going public vessel."[footnote: united states _v._ griswold, federal reporter, ; _id_., .] but they appeal to sordid motives and are liable to abuse. one who is exposed to such a suit often gets a friend to bring it, in order to forestall proceedings by others or by the state, and with a view to delaying or defeating the collection of the penalty. these considerations induced parliament to restrict the remedy in england as early as the reign of henry vii, and have proved of equal force in course of time in the united states. justices of the peace and local municipal courts of criminal jurisdiction are generally given power to deal finally with a few petty offenses, subject to a right of appeal to a court where a jury trial can be had. as to all others, their function is, when the warrant of arrest has been executed, to inquire whether there is probable cause for holding the defendant to answer to the charge which has been made against him in a higher court, and if they find that such cause exists, to order him to give sufficient security that he will appear before it for trial. the question is not whether the evidence satisfies them of his guilt, but simply whether it is sufficient, in their judgment, to make it proper to send him where the charge can be more thoroughly investigated by those who have the right to condemn or to acquit. in making this inquiry, they hear both sides, if the defendant has any testimony to offer. in most states he is now a competent witness in his own behalf, provided he desires to testify. he cannot be interrogated in any court or before any magistrate without his consent. this is a weakness in the american system of criminal procedure. under the english system of prosecutions by private persons, there are greater objections to subjecting an accused person to an examination, and it can now only be had by his consent.[footnote: maitland, "justice and police," .] the certainty in england also that criminal prosecutions may in any case be subjected to the power of a public officer by the interposition of the attorney-general or the director of public prosecutions makes it more important to safeguard a defendant who may be arraigned for a political offense, and whose prosecution may be inspired by reasons of a partisan nature. the magistrates upon whom the task of conducting or superintending the examination would naturally fall are also largely both representative of class interests and unlearned in the law. in the united states local prosecutors are often of a different party from that which controls the state or the united states. they have no close connection with those administering the general affairs of the government. they hold office for fixed terms, not dependent on any shifting of parliamentary majorities or change of ministry. committing magistrates are in a similar position. they are also in many cases trained lawyers. if our constitutions could be so modified or so construed as to allow them to ask the accused the questions that the sheriff who makes the arrest or the reporter who hurries after him to the jail is sure to ask, there are many reasons for believing that it would oftener prove a safeguard to innocence than an occasion for extorted and perhaps inconsiderate or misunderstood admissions. and be that as it may, it would certainly lead up to important clues, and frequently bring out admissions that were both unquestionably true and necessary to establish guilt. the fifth amendment to the constitution of the united states, and similar provisions in the various state constitutions, preclude, so long as they stand, any radical reform in this direction. they speak for a policy that was necessary under the political conditions preceding the american revolution, but which is out of harmony with those now existing in the united states. the interests of society are greater than those of any individual, and yet it is with us the state that is deprived in public prosecutions of an equal chance with the accused. while burdened with the necessity of proving his guilt beyond a reasonable doubt, it cannot, according to the prevailing judicial opinion in this country, so much as ask him at any stage of the prosecution where he was at the time when the crime charged was committed. the terms of our constitutions are not such as necessarily to demand the construction which has been generally given them by the courts. they have been commonly interpreted with a view to making them as helpful as possible to the accused.[footnote: boyd _v._ united states, u. s. reports, .] provisions against compelling him to testify have been treated as if they forbade requesting him to testify. they would seem, on principle, quite compatible with a procedure under which the committing magistrates should in every case ask the defendant when first brought before them whether he desires to make a statement, telling him at the same time that he can decline if he chooses. should he then make one, it should be written down at length in his own words, read over to him for his assent or correction, and properly attested. many a guilty man is now acquitted whose conviction could have been secured on what such a paper would have disclosed or have given a clue to ascertaining. such an inquiry has long been the english practice. the hearing before the committing magistrate, if any contest is made, generally does not take place until some time after the arrest. each party is apt to wish time to prepare for it. meanwhile, the defendant can generally claim the privilege of release on bail, unless the crime be capital and the circumstances strongly point to his guilt. here our practice differs from that of an english court of inquiry. while there bail must be allowed in case of misdemeanors and may be in case of felonies; the amount required is frequently so large as to be prohibitory.[footnote: maitland, "justice and police," .] the essence of bail is that the prisoner should enter into an obligation, together with one or more others of pecuniary responsibility as his sureties, to appear whenever he may be called for in the course of the pending proceeding, on pain of forfeiting a certain sum of money. all our constitutions forbid the taking of excessive bail. the sum should be large enough to give a reasonable assurance that he will not allow it to be forfeited. in fixing the amount, which in each case is left to the good judgment of the officer before whom it is taken, special regard should be had to the gravity of the offense, the nature of the punishment in case of conviction, and the means of the defendant or his friends. if too large an amount is demanded, the defendant can get relief on a writ of _habeas corpus_ issued by some superior judge. this privilege of bail in most states extends to, or at the discretion of the court may be allowed at, any stage of a cause, not capital, even after a final judgment and sentence, provided an appeal has been allowed with a stay of execution. bail is given orally or in writing, according to the practice of the particular state. when given orally, it is termed a recognizance. this is entered into by the personal appearance of those who are to assume the obligation before a proper magistrate or clerk of court, and their due acknowledgment before him that they do assume it. he makes a brief minute of the fact at the time, from which at any subsequent time he can make up a full record in due form. when bail is given in writing, the obligation is prepared in behalf of the government and executed by the parties to it. whoever gives bail as surety for another is by that very fact given a kind of legal control over him. he can take him into actual manual custody without any warrant, and against his will, for the purpose of returning him to court and surrendering him to the sheriff. this right is a common law right, arising from the contract of suretyship, and is not bounded by state lines. if the principal absconds from the state, the surety can have him followed and brought back without any warrant of arrest. the amount of the bail, should it be forfeited, is payable either to the government or to some other representative of the public interests, as may be prescribed by statute. if the sureties have any equitable claim to relief by a reduction of the amount, there is often given by statute or judicial practice a right to the court in which the obligation was given or before which its enforcement is sought to grant a reduction from the sum which would otherwise be due upon it. when a committing magistrate requires the defendant to give bail to appear in a higher court, and he does not give it, he will be committed to jail to await his trial there. in this court he is sometimes tried on the complaint upon which he was originally arrested: oftener a new accusation is prepared. this may be either an information or an indictment. at common law, no one could be tried for a felony unless a grand jury were first satisfied that there was good ground for it. the grand jury consisted of not more than twenty-four inhabitants of the county, and in practice never of more than twenty-three, summoned for that purpose to attend at the opening of a term of court. to authorize a prosecution the assent of twelve of them was required. they heard only the case for the prosecution, and heard it in secret, after having been publicly charged by the court as to the nature of the business which would be brought before them. the court appointed one of them to act as their foreman, and he reported back their conclusions in writing, and in one or the other of two forms--by presentment or indictment. a presentment was a presentation, on their own motion, of an accusation against one or more persons. they were the official representatives of the public before the court, and it might well be that offenses had occurred, and become matters of common notoriety, prosecutions for which no one cared or dared to bring. such a proceeding was comparatively rare. the common course was to pass only on such written accusations as others might submit to their consideration. these were called bills of indictment. if the grand jury believed that there were sufficient grounds for upholding any of them, their foreman endorsed it as "a true bill," and it then became an indictment. if, on the other hand, they rejected a bill of indictment as unfounded, the foreman indorsed it as "not a true bill," or with the latin term "_ignoramus_," and this was the end of it. the organization and functions of the american grand jury are similar, except that here we have prosecuting attorneys to procure the presence of the necessary witnesses and direct the course of their examination. in the federal courts almost all criminal accusations, great or small, are, and by the fifth amendment to the constitution of the united states all charges of infamous crimes must be, prosecuted by presentment or indictment. in most of the states the intervention of a grand jury is requisite only in case of serious offenses; in some only in capital cases. it is obvious that it is less needed here than in england, since here it is not within the power of any private individual to institute criminal proceedings against another at his own will, but they are brought by a public officer commissioned for that very purpose and acting under the grave sense of responsibility which such authority is quite sure to carry with it. the grand jury, however, has its plain uses wherever political feeling leads to public disorder. it has also, since the civil war, been found an effective restraint in some of the southern states, whether for good or ill, upon prosecutions for violations of certain laws of the united states, brought against members of a community in which those laws were regarded with general disfavor. prosecutions by information are those not founded on a presentment or indictment. the information is a written accusation filed in court by the prosecuting officer. in certain classes of cases, the leave of the court must be first asked in some jurisdictions. it is not necessary that it be supported by any previous statement or complaint under oath. the officer who prepares it acts under an oath of office, and that is deemed sufficient to give probability to whatever charges he may make. if the defendant has already been bound over by a committing magistrate, such an information may take the place of the original complaint on which the arrest was made. if he has not yet been arrested, or if he was arrested and discharged by such a magistrate, the filing of an information is accompanied by a request for the issue of a warrant for his arrest from the court. such a paper is called a bench warrant, and is granted whenever necessary, whether upon a presentment, indictment, or information. an information may be amended by leave of the court at any time. a presentment or indictment cannot be. they, when returned to court, are the work of the grand jury, and they end its work. an amendment of a legal process can logically be made only by the hand which originally prepared it. this rule leads to the escape of many a criminal. if prosecuted by indictment, the case against him must be substantially proved--in whole or part--as there stated, or he goes free. prosecuting officers therefore naturally prefer to proceed upon information whenever the law permits it. the intervention of a grand jury is also often the necessary cause of a delay alike prejudicial to the state and to the prisoner. it can only be called in when a court is in session, by which it can be instructed as to its duties and to which it is to report its doings. months often elapse in every year when no such court is in session. for this reason, in case of a poor man under arrest on a charge of crime, who cannot furnish bail, it would often be much better for him were his liability to be brought to trial to be settled promptly by a single examining magistrate. at the hearing in that case also he has a right to be present and to be heard. before a grand jury he has no such right. in most states, the great majority of indictments are against those who have already been committed on a magistrate's warrant to answer to the charge, should an indictment be found. the accused thus has two chances of escape before he can be put on trial for the charge against him: one by a discharge ordered by the committing magistrate, and one by the refusal of the grand jury to return "a true bill." a grand jury is more apt to throw out a charge as groundless than a single magistrate. he feels the full weight of undivided responsibility. if he err by discharging the prisoner, he knows that it may let a guilty man go free, untried. if he err by committing him for trial, he knows that, if innocent, the jury are quite sure to acquit him. he acts also in public. the whole community knows or may know the proofs before him, and will hold him to account accordingly. on the other hand, in the grand jury room all is secret. the prosecuting attorney, if admitted, does not remain while the jurors are deliberating over their decision. no one outside knows who may vote for and who against the return of an indictment. every opportunity is thus afforded for personal friendship for the accused or business connection with him to have its influence. judges know this, and in their charge often emphasize the importance and gravity of the duty to be performed. in , the prosecuting officer in one of the small counties in kentucky had prepared indictments against several men of some local prominence for arson and bribery. a special grand jury was summoned to act upon them. there was reason to expect some reluctance on the part of several. of the witnesses for the state some were no less reluctant. there was great public excitement in the court town. one witness came there over ninety miles by rail hidden, for fear of his life, in a closed chest in the car of an express company. the grand jury were told by the court that they must make their inquiry a thorough one and indict without fear or favor every person in the county who ought to be indicted. "if," the judge added, "the evidence calls for indictments and you don't make them, they will be made anyway. if you do not do your full duty, i will do mine by assembling another grand jury." they did theirs under these stirring injunctions, and the indictments were promptly found. after the indictment or information comes the arraignment. this is bringing the defendant before the court and, after the charge made against him has been read, directing him to plead to it. before the plea is entered, if he has no counsel, he is asked if he desires the aid of one, and if he responds that he does (or should he not, if the court thinks he ought to have counsel), some lawyer will be assigned to that duty. some of the younger members of the bar who are present are generally desirous of being so assigned to defend those who have no means to employ such assistance. the court ordinarily makes the assignment from among their number, but in grave cases often appoints lawyers of greater experience and reputation. no one who is so assigned is at liberty to decline without showing good cause for excuse. a small fee is often allowed by statute in such cases from the public treasury. statutes are also common providing that witnesses for the defense may be summoned at the cost of the government, if the defendant satisfies the court that their testimony will be material, and that he is unable to meet this expense. in the federal courts, in capital cases, the defendant must be furnished with a copy of the indictment and a list of the jurors summoned to court and of the government witnesses, at least two days before the trial. whether impanelling the jury for the trial of a case is a long or short process will depend largely on the intelligence and firmness of the judge who holds the court. each side can challenge a certain number of the jurors in attendance without stating any reasons for it, as well as any and every one of them for cause shown. if a juror has formed an opinion as to the guilt of the accused so definite as to amount to a settled prejudice against him, he is incompetent. in grave cases the prisoner's counsel will often seek to examine every juror whose name is drawn at great length as to whether he has such an opinion. a capable judge will keep such an inquiry within close limits. in , an indictment for murder was found in kentucky against a son of the governor. the case was one which excited great public interest, and was talked over from one end of the state to the other. the result was that when the trial came on it was found impossible, term after term, to make up a jury of men who, from what they had heard or read, had not formed what the defense claimed and the court thought to be a sufficiently firm opinion as to the guilt or innocence of the accused to justify their exclusion. the legislature was finally appealed to for relief and passed a statute that an opinion formed from mere rumor should not be a ground of challenge. the case was then, in , taken up for the ninth time, but with the same result, whereupon the defendant's father gave him a pardon, on the ground that "the prospect of obtaining a jury is entirely hopeless," and that he had "no doubt of his being innocent of the foul charges."[footnote: niles' register, xxxii, , ; xxxviii, .] when a capital case is coming on, great pains will often be taken by the prisoner's counsel to ascertain the characteristics and disposition toward his client of each of the jurors who have been summoned to court. this has sometimes been carried to the extent of trickery, particularly in some of the southern states. agents have been sent over the county to see every man capable of jury service. there is some ostensible reason given for the call. he is perhaps asked to buy a photograph of the accused; perhaps to contribute to a fund to provide him with counsel. this naturally leads to some expression of opinion in regards to the charge made against him, and if the man thus "interviewed" should be afterwards offered as a juror, he is challenged or not challenged according to the information so obtained. in every criminal case the defendant's guilt must be proved beyond a reasonable doubt. a mere preponderance of evidence is not enough. in other respects the rules of evidence are applicable which obtain in civil cases. if a verdict of not guilty is returned, the court orders the discharge of the prisoner, as a matter of course, unless provision has been made by statute for an appeal by the state for errors of law committed on the trial. no such appeal can be allowed for the purpose of obtaining a new trial on the ground that the jury came to a wrong conclusion on the facts. this would be to put the defendant twice in jeopardy, which our constitutions generally forbid. even under the practice prevailing in the philippine islands, where they have no juries, and an appeal to a higher court for a new trial on the merits has always been allowed to either party in a criminal case, as a matter of right, this rule is held to apply.[footnote: kepner _v._ united states, u. s. reports, .] if the verdict is one of guilty, the sentence is pronounced by the judge. he generally has a broad discretion as to the extent and nature of the punishment. for many offenses, either fine or imprisonment or both may be imposed, according to his best judgment. for most, when imprisonment is ordered, it may be for a term such as he may prescribe within certain limits, as, for instance, from one to five years. in a number of states of late years the judge is permitted in such a case to sentence for not less than one year, and it is left to some administrative board to determine later how much, if any, longer the confinement shall last, in view of the circumstances of the offense, the character of the prisoner, and his conduct since his sentence. a considerable and increasing group of penologists is pressing upon our legislatures the extension of the principle of the "indeterminate sentence" by removing the limit of a _minimum_ term. it is doubtful if such a change would satisfy the constitutional requirement of a trial by jury. that in its nature involves a trial before a judge and a sentence imposed by the court upon the verdict. can that be deemed a judicial sentence to imprisonment which is a sentence to imprisonment during the pleasure of certain administrative officials? judgments are to ascertain justice. to do this they must be themselves certain. in a purely indeterminate sentence there is no certainty until it has been made certain by the subsequent action of the administrative authorities. it may turn out to be imprisonment for life, and the advocates of this mode of action frankly say that such ought to be the disposition of all incorrigible and habitual criminals. if so, ought not the fate to be meted out to them by judicial authority? can anything less than that be considered as due process of law? an experienced and able judge seldom makes any serious error in grading the punishment of offenders who have been tried before him. the sentence is not pronounced until they have been fully heard as to all circumstances of extenuation, nor until the government has been heard both as to these and as to any circumstances of aggravation. the sentence, if the offense be a grave one, cannot be pronounced except in the presence of the convicted man. he has an opportunity for the last word. judges who are neither able nor experienced frequently impose sentences too light or too severe. we have too many such judges in the united states. the real remedy for the evil is to choose better ones. as between judges and boards of prison officers or of public charities, the judge always has the great advantage of having tried the case and heard the witnesses. he ought therefore to be best able to fix the term of punishment. the punishment to which one can be sentenced on a conviction of crime is now generally limited to fine or imprisonment. for graver offenses both may be inflicted: for murder, and in some states for a very few other crimes the penalty is death. the policy of the older states long was to require those whose offenses were directed against property to make good the loss of the injured party. whipping was also often added, and it was formerly a common mode of punishment throughout the country for all minor offenses. every colony used it. it was authorized by the original act of congress in on the subject of crimes, and was not abolished for the courts of the united states until . it was provided for in the early statutes of most of the states, and in some still is. until , it was the only mode of corporal punishment allowed in connecticut for the general crime of theft. for boys it is often the only punishment that can properly be administered. to fine them is to punish others. to imprison them is, in nine cases out of ten, to degrade them beyond recall. virginia, in , reverted to it as an alternative to fine or imprisonment in the case of boys under sixteen, provided the consent of his father or guardian be first given. such a statute seems absolutely unobjectionable from any standpoint. it is often asserted that whipping is a degrading and inhuman invasion of the sanctity of the person. to shut a man up in jail against his will is a worse invasion. but as against neither is the person of a criminal convict sacred. he has justly forfeited his right to be treated like a good citizen. whether whipping is a degradation or not must depend much on the place of its infliction. the old way in this country, as in england, was to inflict it in public. this puts the convict to unnecessary shame. let him be whipped in private, and his only real degradation will be from his crime. so inhumanity is needless. a moderate whipping only should be allowed. that is far more humane to most men than a term of jail; that is, it detracts less from their manhood than the long slavery of confinement. of late years there has been a decided movement in the united states toward a return to the penalty of whipping for atrocious cases of assault or offenses by boys.[footnote: see paper on "whipping and castration as punishments for crime," _yale law journal_, vol. viii, , and president roosevelt's message to congress in december, .] it is probable that it will find more favor hereafter in the south as a punishment for negroes. most of their criminals are of that race. the jails have no great terrors for them. they find them the only ground where they can mingle with their white fellow-citizens on terms of social equality. but they are sensitive to physical pain. a flogging they dread just as a boy dreads a whipping from his father, because it hurts. the south may have been held back from applying this remedy in part from the apprehension that it might be considered as reinstating the methods of slavery. no such criticism could fairly be made. confinement in jail is involuntary servitude, and involuntary servitude is slavery. whipping is a substitute for it: it saves from slavery. in several of the southern states, instead of imprisonment, ordinary offenders are set at work in the open air, either on convict farms, or in chain gangs on the highway, or in the construction of railroads or similar works. this plan prevails in georgia and arkansas to such an extent that very few are confined in the penitentiary. the convicts in these states are mainly negroes. when, as has been at times permitted, they have been turned over to private employers to work in this manner for wages paid to the state, many of the abuses of slavery have reappeared, and public sentiment is becoming decidedly adverse to the allowance of such contracts for convict labor. similar objections do not lie in their employment on state farms, and in north carolina and texas this has been tried with considerable success.[footnote: see "bulletin de la commission pénétentiaire internationale," th series, ii, .] special courts have been organized, or special sessions of existing courts directed, for the disposition of prosecutions against children in several of the states and in the district of columbia during the past few years. the judge holding such a "juvenile court" or "children's court" is expected to deal with those brought before him rather in a paternal fashion. an officer is generally provided, known as a probation officer, to whom the custody of the accused is largely committed both before and after trial. he is to inquire into each case and represent the defense at the hearing. in case of conviction, the child can, on his advice, be released on probation, or the sentence can be suspended. for errors of law committed by the judge in the course of the trial the defendant commonly has a right of appeal. until this was not true in the federal courts, and a man convicted and sentenced there under an erroneous view of the law and in disregard of any of his rights had no remedy, even in a capital case. it was so in delaware until . in some states there is a right of appeal in favor of the government as well as of the defendant for errors of law, and this even after a jury trial ending in a verdict of acquittal. it is there held that the common constitutional provision that no man shall be put twice in jeopardy of life or limb is not contravened by the allowance of such a remedy. the writ of error is a stage in the original prosecution. one acquitted of crime is deemed not to be put out of jeopardy unless he has been acquitted according to the forms of law, and after a trial conducted according to the rules of law. what these rules are, in case of dispute between the government and the accused, must be determined by such proceedings in the cause as the legislature may deem best adapted to ascertain them in an authoritative manner. such a mode may properly be furnished by allowing a resort to a higher court, and a resort in favor of either party.[footnote: state _v._ lee, conn. reports, ; atlantic reporter, ; american state reports, ; kent, _j_., in people _v._ olcott, day's reports, , note.] in other states such a review, in favor of the government, of the conduct of the cause is only supported when the exceptions taken are founded on what may have preceded the trial.[footnote: people _v._ webb, california reports, .] this distinction is approved by the supreme court of the united states.[footnote: kepner _v._ united states, united states reports, , .] for errors in conclusions of fact the defendant, in certain cases, has a remedy on a petition for a new trial, but in no case can the state ask for one. this is true even though the trial was not had to a jury. there is no doubt that new trials are too often granted in the united states in favor of those who have been convicted of crime. particularly is this true when they are ordered because of some irregularity of procedure or slip in the admission or exclusion of evidence. a verdict, whether in a civil or criminal case, should stand, notwithstanding it was preceded by erroneous rulings or omissions of due form, unless the court of review can see that substantial injustice may on that account have been done.[footnote: see paper on "new trials for erroneous rulings upon evidence," by professor j. h. wigmore, in the _columbia law review_ for november, .] to release a convicted criminal for error in mere technicalities not really affecting the question of his guilt tends to make the people lose faith in their courts and resort to lynch law as a surer and swifter mode of punishment. appeals in criminal causes are, however, much rarer and also much less often successful than is generally supposed. about eleven thousand persons were convicted of felonies in the county courts of new york during the five years from to , inclusive of each, and of these less than nine in a thousand pursued an appeal, not a third of whom secured a judgment of reversal.[footnote: nathan a. smyth, _harvard law review_ for march, .] in massachusetts, about a hundred thousand criminal prosecutions are annually brought, and the appeals to the supreme judicial court from sentences of conviction rarely exceed twenty to twenty-five in number, and upon these in each of the years and only two new trials were granted.[footnote: _law notes_ for december, .] a comparison of the number of those put to death in the united states for crime by the courts, and on a charge of crime by a mob, for the past three years shows these results: executed by judicial sentence. lynched. total. a large majority of those lynched were negroes, and met their fate in the south. it is extremely difficult to secure a conviction of those who take part in such acts of violence. they commit the crime of murder, and the penalty is so heavy that their fellow-citizens are unwilling to subject them to it. the offenses with which the men whom they kill are charged are also generally of a nature which make them peculiarly offensive to the community. many are negroes charged with the rape of a white woman, to whom it would be intensely disagreeable to testify against them. not a few are men under sentence of death, who it is feared may escape or delay punishment by an appeal. such considerations cannot excuse, but present some slight palliation for those acts of mob violence by which the people of the united states are so often disgraced. it may be added that out of the southern states they are quite rare, and in the northeastern states substantially unknown. of the one hundred and four lynchings in , only twelve occurred in the north or west. * * * * * chapter xviii the exercise of judicial functions out of court a public officer, whose duties are mainly other than judicial, may be invested with judicial power to be exercised only in certain causes which may be brought before him, in disposing of which he acts as a court. such an one is a judge only when he is holding court. when it is adjourned, no court exists of which he could be a judge. justices of the peace and parish judges are officers of this description. but ordinarily judges are appointed to hold some regular court, with stated sessions, which is always in existence. to such a judge considerable powers of a judicial nature are usually given for exercise when his court is not in session. the writ of _habeas corpus_, for instance, may be issued either by a court of record or by a judge of such a court, if applied for when the court is not in actual session. in the latter case, the return of the writ is made to him, the trial had before him, and judgment rendered out of court, or, as it is styled, "at chambers." while sitting for such a purpose, he may be regarded as exercising functions which really belong to the court and acting as a part of it. statutes often, in case of a court having but a single judge, give him power to hold special courts whenever he may think proper. in such a case no very definite line is drawn between what judicial business the judge does and what the court does. while the proper and normal constitution of a court of record requires the attendance not only of a judge, but of a clerk and a crier or sheriff's officer, the only one whose presence is indispensable is the judge. a district judge of the united states has this power of holding special courts, and is a court wherever and whenever he pleases to transact judicial business, whether he describes himself in such papers or process as he may issue, as court or judge.[footnote: the u. s. _v._ the schooner "little charles," brockenbrough's reports, .] the judges of courts having equitable jurisdiction act often out of court in the issue of temporary injunctions. these are writs directing some one to refrain from doing a certain act. they generally direct it under pain of a specified pecuniary forfeiture; but whether they do so or not, disobedience is punishable also by arrest and imprisonment, being treated as a contempt of court. the need of an injunction is often immediate. it would be worthless unless promptly granted. when, therefore, no court having power to issue one is in actual session, there would be a failure of justice if the judge could not act to the extent of granting temporary relief. whether the injunction should be made permanent is a subsequent question, to be determined after a full hearing by the court. it may, in urgent cases admitting of no delay, be issued _ex parte_, but ordinarily the defendant is notified and has an opportunity for a summary hearing, either orally or on affidavits, before action is taken. a similar power often vested in judges at chambers is that of appointing a temporary receiver; that is, of some one to take temporary charge of property in behalf of and as agent of the court, when this seems necessary in order to preserve it. if the affairs of a commercial partnership get into such a condition that the partners cannot agree on the mode of conducting it, such an appointment can be made to tide matters along for the time being. so in case of an insolvent debtor his estate may, under certain circumstances, be placed in a receiver's hands by a summary order, issued out of court. it may be added that by the statutes both of the united states and of all the states many powers of a _quasi_-judicial character are conferred on judges to be exercised out of court, such as those of ordering the arrest of one suspected of criminal conduct, examining into the charges against him on his arrest, and admitting him to bail or sending him to jail for want of it. * * * * * chapter xix appellate courts for each of the states and territories as well as for the united states there is one supreme court of appellate jurisdiction. the supreme court of the united states can entertain original actions of certain kinds.[footnote: see chap. ix.] a few also of the state supreme courts of appeal have a limited original jurisdiction. this is generally confined to equity causes, election contests and certain actions for extraordinary relief known as prerogative writs, such as informations in the nature of _quo warranto_ and writs of mandamus. the term "appeal" in its strictest signification is confined to a removal of a cause after trial to a higher court for a new trial on the merits. it is also and now more commonly used to denote such a removal for the purpose only of inquiring whether any legal errors were committed on the trial or are to be found in the judgment. in this sense it covers proceedings by a writ of error, and any other mode of reviewing questions of law.[footnote: see the _federalist_, no. lxxxi.] if it does not appear from the record of the lower court that any of the errors that may be claimed (or "assigned," as the phrase is) exist, the judgment is affirmed; otherwise the cause is sent back for a new trial or, if the objections are fundamental and fatal to its maintenance, is dismissed. appellate courts are of many kinds. some are such exclusively; some mainly. in others the functions of entertaining appeals is a minor one, most of their time being occupied in trying original causes. an appeal from judgments of a justice of the peace, for instance, is generally given on the merits to county courts, but the greater part of the litigation before them comes there in the first instance. so the judgments of county or other minor courts are often reviewable on appeal for errors in law in some superior court which, like them, is principally occupied in the exercise of an original jurisdiction. when the american colonies passed into states, as has been seen, they were habituated to the thought of a supreme controlling authority exercised by one tribunal of a judicial character of last resort. the judicial committee of the privy council had administered this sovereign power for them, and for a long period of years, with general acquiescence.[footnote: see chap. i.] the uniformity of result thus obtained was acknowledged to be advantageous. it was now necessary to replace them by american courts of last resort, and it was not difficult in doing so to improve upon the english model. the time had come for separating, as far as it could conveniently be accomplished, judicial from political power. virginia was the first to act. a few days before the declaration of independence she adopted a constitution (under which the government, was carried on until , though it was never formally submitted to or ratified by the people) providing for a separate judiciary headed by a supreme court of appeals whose judges should hold office during good behavior, and be ineligible to the privy council or general assembly. this divorce of judiciary and legislature was not the plan universally followed. new jersey, in which as a colony the governor and council had possessed an appellate power like that vested in the english house of lords, was so well satisfied with this arrangement as to continue it in her constitution of july , , and up to the present time puts upon her supreme court a certain number of judges who give but a part of their time to this work, and are not necessarily (though in practice of late years they generally have been) lawyers. new york, in her constitution of , pursued a somewhat similar plan. her highest court was one "for the trials of impeachments and the correction of errors." its members were the senate with the chancellor and judges of the supreme court. when a judgment of that court was brought up for review the judges were to state their reasons for giving it, but had no vote. this scheme was adhered to with little modification until . what made it tolerable was that many of those elected senators were naturally lawyers, and that to be in the senate soon became the ambition of a lawyer with any desire to know how it would feel to be a judge. able and learned opinions were pronounced by such men in exercising their judicial functions, and some of them in the new york reports are still frequently the subject of reference as clear and satisfactory statements of legal principles. connecticut, in , when she instituted for the first time a court of last resort, made it up of the lieutenant governor and the twelve assistants, and soon added to it the governor himself. a plan of this kind was likely to work in that state, as in new york, better than it looked. lawyers by this time had come to fill most of the higher offices of state. although the assistants were elected annually it was under a complicated scheme of nomination, which, unless in case of a political revolution, ensured re-election in every case. a majority of the assistants were always members of the bar. they were also federalists from the beginning of party divisions in the country. naturally, the republicans found such a state of things intolerable. all the power of government in connecticut, said one of those who were celebrating jefferson's second election to the presidency in , "together with a complete control of elections, are in the hands of seven lawyers who have gained a seat at the council board. these seven men virtually make and repeal laws as they please, appoint all the judges, plead before those judges, and constitute themselves a supreme court of errors to decide in the last resort on the laws of their own making. to crown this absurdity, they have repealed a law which prohibited them to plead before the very court of which they are judges." attacks like this were too just to be resisted, and two years later the governor, lieutenant-governor and assistants were replaced by the judges of the superior court. constitutional provisions that the right of trial by jury shall be preserved inviolate preclude, as a general rule, the establishment of courts in which the judges can make a final disposition of petty causes which turn on disputed facts. an appeal from their decision must be allowed, and a new hearing given on the merits in a court furnished with a jury. under the constitution of the united states a trial by jury cannot be claimed in civil cases at common law involving a demand of not over twenty dollars, and in most of the older states it cannot be in cases where it was not a matter of right prior to the adoption of their constitutions. the verdict of a jury can only be reviewed on its merits by a court of last resort where it was clearly and palpably against the weight of evidence, and in order to do this the whole evidence given in the trial court must be certified up. where a judgment has been rendered on a finding of facts made by a judge in a cause of an equitable nature, this finding can, in the courts of the united states and in many of the states, be reversed on any point on appeal. for this purpose also all the evidence that was before him, or all that is pertinent to questions involved, must be reported to the court above. except so far as the right of trial by jury may require it, it is a matter of legislative discretion whether to give any remedy in a higher court for the errors of a lower one. in some states an appeal is given from a judgment of an inferior court even though rendered on the verdict of a jury, to a higher one where another trial may be had before a judge of presumably greater ability. in many states errors in law of petty courts may be reviewed in higher trial courts. in a few of the larger ones, as in the united states,[footnote: see chap. ix.] errors in law of the higher trial courts, in a considerable class of cases, are finally disposed of in an intermediate appellate court, constituted to relieve the court of last resort from an overweight of business. * * * * * ordinarily it is the statutory right of a defeated litigant to take an appeal, provided he can state any colorable ground of exception. in some jurisdictions he is required to obtain the approval of the trial court or else of some member of the appellate court. there are many judges who think that such a practice should be universally adopted. it would certainly tend to relieve the dockets of appellate tribunals, and to bring lawsuits to a speedier end. if one were sure that the judge to whom application was made for an approval of the appeal would always act intelligently and impartially, such a precaution against useless litigation would be admirable. but the trial judge is not in a position that naturally leads to an unprejudiced judgment. the appeal is asked on account of mistakes of his, and he will not be apt to think that he has made any. the judge of the appellate court will be impartial and unprejudiced, but he will have a very imperfect knowledge of the case. he could only be asked to make a hasty examination of the points involved, and it would be quite possible for him to reject as frivolous grounds which, on a lengthy investigation after a full argument, might have seemed to him substantial. in view of these objections, and of the unequal attainments and experience of the different judges of our courts, the bar are generally in favor of making appeals a matter of right; and what the bar favors in such a matter the legislature usually enacts. * * * * * the opinions and judgments of all american courts of last resort are officially reported for publication. at first they were not so reported. the earliest volume of american judicial decisions (kirby's) was published in as a private venture. a few years later the states began to provide official reporters for their highest courts and soon assumed the expense of publication. there are now more than fifty current sets of federal and state reports, the annual output being about four hundred volumes, containing , cases. the mere indexing and digesting of these reports for the use of the bench and bar has become a science. while consulted by comparatively few who are not connected with the legal profession, they constitute a set of public records of the highest value to every student of history and sociology.[footnote: see "two centuries' growth of american law," .] it is the custom to prefix to the report of each case a head-note stating briefly the points decided. ordinarily this is the work of the reporter. in a few states the judges are required to prepare it; and to do so then naturally falls to the lot of that one of them who wrote the opinion. occasionally the head-note contains statements not supported by the opinion. in such case the opinion controls unless it is otherwise provided by statute. it has not been the usual custom of english judges of courts of last resort to write out their opinions. they have commonly pronounced them orally and left it to the reporters to put them in shape. the consequence has been that english reports have a conversational tone, and are not free from useless repetition. this has been not only a matter of tradition but of necessity. the english judges have always been few in number. their time has been largely occupied in the trial of cases on the facts. it is only in recent years that certain judges have been set apart especially for appellate work. american judges, on the other hand, are numerous. there is the waste of energy in our judicial system which is the necessary concomitant of the independent sphere belonging to each separate state. combination of all of them into one empire would make it easy to reduce the judiciary to a tithe of its present numbers. their salaries are part of the price we pay--and can well afford to pay--for our peculiar system of political government, under which every state is an _imperium in imperio_. the ever-increasing number of our states, each with a body of law not exactly like that of any other, and each with a written constitution which is its supreme law, requires a court of last resort in each. experience tends to show that it ought not to be composed of less than five. there should certainly be an uneven number to facilitate decisions by a majority; and unless a minority consists of as many as two, its dissent is apt to carry little weight in public opinion. in most of the states the court of last resort is not overworked. in some the judges find time to do considerable circuit duty in the trial of original causes. this keeps them in touch with the daily life of the community, and is so far good. on the other hand it disqualifies them from sitting on an appeal from their own decisions, and so either reduces the number of the appellate court occasionally below that which is normal and presumably necessary, or involves calling in some one to act temporarily, which imperils the continuity of thought and uniformity of doctrine which should characterize every such tribunal. there is also a certain natural bias, insensible perhaps to themselves, which tends to make appellate courts stand by one of their members whose rulings while holding a trial court are brought in question. for these reasons it has now become common for the states to confine their appellate judges exclusively to appellate work. the time, therefore, which the english judge gives to circuit duty the american judge can give to writing out his opinions with all the art and care which he can command. he speaks in most instances to a small audience--the bar alone. but it is the bar of this year and the next year and the next century. every volume of reports is part of the history of american jurisprudence and of american jurisprudence itself. occasionally some case arises which involves large political questions, or one of especial local interest. the opinion is then read more widely. the newspapers seize it: reviews take it up. it is not always easy to anticipate what decision will become a matter of public notoriety; what opinion will be quoted as an authority in other states; and what drop unnoticed except by the lawyers in the cause. a judge, therefore, though he have no better motive than personal ambition, is apt to do his best in every case to state the grounds of his conclusions clearly and in order. a certain style of american judicial opinion has thus grown up. it is dogmatic. it offers no apologies. there is neither time nor need for them. the writer speaks "as one having authority." he does not argue out conclusions previously settled by former precedents, but contents himself with a reference to the case in the reports in which the precedent is to be found. he is as brief as he dares to be without risking obscurity. it is undoubtedly true that many reported opinions are of a very different type. some of marshall's assume a tone of apology; but in his day it was needed. he struck at cherished rights of states, upheld by their highest courts, and struck them down, at a time when the country was unfamiliar with the conception of the united states as a national force. many of those of judges of inferior ability do not rise above their source. they are verbose, repetitious, slovenly, inaccurate in statement, loose in form; perhaps sinking into a humor or sarcasm always out of place in the reports;[footnote: see, for instance, mincey _v._ bradburn, tennessee reports, ; terry _v._ mcdaniel, _ibid_., ; hall-moody institute _v._ copass, _id_., .] possibly unfair in describing the claims that are overruled. but, as a whole, americans need not fear to compare the reports of their courts with those of foreign tribunals. no judicial opinions, viewed from the point of style and argument, rank higher than some of those written by american judges. those of appellate courts are generally composed and delivered by a single one of their members, but he speaks not only for the court but for every other member of it who does not expressly dissent. nevertheless, as their conclusions depend on one man for their proper expression, the responsibility for the particular manner in which the opinion may set them forth is properly deemed in a peculiar sense to rest upon him. nor, if the opinion is afterwards relied on as establishing a precedent, is the court bound by anything except the statement of the conclusions necessary to support the judgment. if unsound reasons for those conclusions are given, defective illustrations used, or unguarded assertions made, it is chargeable with no inconsistency in subsequently treating them as merely the individual expressions of the judge who wrote the opinion.[footnote: exchange bank of st. louis _v._ rice, mass. reports, , . this position is not, universally accepted. see merriman _v._ social manufacturing co., r. i. reports, , .] when marshall became chief justice of the united states he introduced the practice of writing all the opinions himself, and with a few exceptions maintained it for ten years, and until, by successive changes in the court, a majority were republicans. this, as has been well said, "seemed all of a sudden to give to the judicial department a unity like that of the executive, to concentrate the whole force of that department in its chief, and to reduce the side justices to a sort of cabinet advisers."[footnote: thayer, "john marshall," .] in some of the state supreme courts in early days, it was the practice for the chief justice to deliver an opinion in every case, but his associates frequently added concurring or dissenting ones. of late years the business of appellate courts in the united states and in most of the states is so considerable that it is necessary to divide the labor, and the cases are generally distributed equally for the preparation of opinions. it is the prevailing practice to have the opinion, when drafted by the judge to whom that duty is assigned, typewritten or printed, and a copy sent to each of the other judges for their consideration separately. at a subsequent conference each judge is called upon by the chief justice to state whether he concurs in it, and if alterations are proposed there is opportunity for their discussion. this practice did not become general until the latter part of the nineteenth century, when the typewriter had come into common use. prior to that time the draft opinion was ordinarily first made known by its author to the other judges either by reading it aloud at the final consultation or by sending one manuscript copy around to each in succession for his endorsement of approval or disapproval. in some courts it was never thus submitted at all, and so they were occasionally committed to positions which they had never intended to adopt and afterwards found it necessary to repudiate.[footnote: see for an example of this wilcox _v._ heywood, r. i. reports, , .] our courts of last resort generally have before them a printed statement of the doings in the lower court which they are asked to review, and a printed argument from each party to the appeal. oral arguments are also usually heard, except in a few states where the press of business renders it practically impossible except in cases of special importance. such a press occurs mainly in the largest states, but exists also in some whose constitutions make it easy and over-cheap for every defeated litigant to carry his case up to the highest court. in the supreme court of georgia no costs exceeding $ can be taxed against the unsuccessful party; and it has had eight hundred cases in one year upon its docket. in most states he has substantial costs to pay. these mainly are to meet the expense of printing the record sent up from the court below. a single case will sometimes fill a volume or even a set of volumes, particularly in equity causes in the federal courts, in which all the testimony is generally written out at length. the appellant has to pay for the printing in the first instance, but ordinarily, if he succeeds, the other party will be obliged to reimburse him. the cost involved is occasionally several thousand dollars. the party taking the appeal must file a paper stating his grounds for it separately, distinctly, clearly and concisely. there is a temptation to include all that can be thought of, good, bad and indifferent; and whether this is done or not will depend largely on the opinion which the lawyers have of the ability of the court. in the smaller states the judges have time to enable all to study each case with care. in the largest ones it is not uncommon to assign every case on the docket, in advance of the argument, to a particular judge. he is expected to give it special attention with a view to reporting his conclusions upon it to the court, and, should they be approved in consultation, to writing out its opinion subsequently. the assignment for a term of court is not infrequently made in the order in which the docket (or printed list of cases to be heard) is made out, the chief justice taking the first case, the senior associate justice the second, and so on. at the next term the same practice will be pursued, except that the justice next in seniority to the one who had the last case under the previous assignments will now take the first case on the new list, and the next junior justice the second. appellate courts generally sit not over four or five hours a day; this time being either preceded or followed by a consultation. they are seldom in session more than five days in the week. the cases before them are not usually assigned for argument on particular days. a list is made up of all which are ready to be heard, numbered in order, the oldest first. they are then taken up successively as reached, and the counsel concerned in each must be ready at their peril. often a limit is fixed by rule as to the number of cases that can be called for argument in any one day. in the supreme court of the united states this is the practice, and the number is ten. in some of the states it rises as high as twenty. at the first consultation over a case which has been argued, the chief justice (unless a special assignment has been previously made of it to some particular member of the court) asks the junior justice his opinion as to the proper disposition to be made of it, and each justice in turn then gives his, in the reverse order of seniority. if there is any serious disagreement the matter is generally allowed to stand over for further discussion later. at some convenient time after the views of the various justices have been ascertained the cases are distributed and, as a rule, equally for the purpose of preparing the opinions. this distribution is sometimes made by the chief justice and sometimes by agreement, or according to the arrangement of the docket. until the opinion has been finally adopted it is not usual to announce the decision. not infrequently the ultimate decision is made the other way, and a new opinion prepared by the same, or, if he remains unconvinced that his first one was wrong, by another judge. still more often the draft opinion is altered in material points to meet criticisms and avoid dissent. dissenting opinions are comparatively rare, particularly in courts where there is a chief justice with the qualities of a leader; that is, with ability, learning and tact, each in full measure.[footnote: perhaps tact counts the most, for the chief justice has the advantage of hearing the opinions of all his associates at all consultations before he gives his own. senator hoar makes a pungent comment on chief justice shaw's want of it, in his autobiography, ii, .] every instance of dissent has a certain tendency to weaken the authority of the decision and even of the court. law should be certain, and the community in which those charged with its judicial administration differ irreconcilably as to what its rules really are, as applied to the transaction of the daily business of life, will have some cause to think that either their laws or their courts are defective and inadequate. for these reasons judges of appellate courts often concur in opinions, of the soundness of which they are only convinced because of the respect they entertain for the good judgment of their associates. they are willing to distrust themselves rather than them. not seldom, however, dissent and the preparation of a dissenting opinion has in the course of time, aided, perhaps, by some change of membership, converted the court and led to overruling a position incautiously taken which was inconsistent with settled law.[footnote: a striking instance of this is the case of sanderson _v._ pennsylvania coal co., pennsylvania state reports, ; _id_., ; _id_., ; _id_., ; atlantic reporter, .] more than eighty out of every hundred of the opinions delivered in the courts of last resort of each state of the united states, excepting one (new jersey), and contained in the last volume of the reports of each published prior to june, , were unanimous. in new jersey seventy-three out of every hundred were. in two states, maryland and vermont, there was dissent in but two out of every hundred cases, and in all the states taken together, out of nearly , cases decided a dissent is stated in only. this made the proportion of unanimous decisions of state courts, in the country at large, to those in which there was dissent nineteen to one.[footnote: _law notes_ for june, , p. .] a dissenting judge sometimes files an opinion which is then printed in full in the reports. more often the fact of his dissent is simply noted. in cases involving constitutional questions it is rare for a dissenting judge not to state his reasons. the importance of the subject justifies if it does not demand it. as mr. justice story once observed, "upon constitutional questions the public have a right to know the opinion of every judge who dissents from the opinion of the court, and the reasons of his dissent."[footnote: briscoe _v._ bank of kentucky, peters' reports, , .] the official reports of the courts have some of the faults of officialism. they often do not appear until long after the decisions which they chronicle have been made and their general make-up is sometimes unworkmanlike and unscientific. it requires rare gifts to make a good reporter of judicial opinions. he must have the art of clear and concise statement; the power to select what is material and drop the rest; and the faculty of close analysis of abstract reasoning.[footnote: four of the reporters of the supreme judicial court of massachusetts have been appointed justices of that court, largely in consequence of their good work in reporting. a good reporter always has the making of a good judge.] many of our reporters also are practicing lawyers of no special training for the work, and who give to it but a portion of the year. the modern sense of the value of time, of scientific treatment of whatever can be treated scientifically, and of uniformity in scientific methods led toward the close of the nineteenth century to competition in reporting. private publishing houses undertook the prompt publication, in scientific arrangement upon a uniform plan, of the opinions of the courts. this work began in . the result has been that the series of official reports of the circuit court of appeals of the united states has been discontinued, and that the decisions of all our other appellate courts are now twice reported. one publishing house has grouped the states into clusters, issuing for each cluster its own series of reports, known, respectively, as the atlantic, the northeastern, the northwestern, the southeastern, the southern, the southwestern and the pacific reporters. the states forming each group have been selected mainly because they were neighbors geographically, but partly from commercial reasons. thus massachusetts, which would naturally be assigned to the atlantic reporter, has been put into the northeastern; and such inland states as kansas and colorado find their place in the pacific reporter. all the reported decisions of all the states in each group are printed in pamphlet form weekly, as they may be handed down, in chronological order; and every few months the whole issued as a bound volume. in this way, for a trifling sum a copy of any opinion of any american court of last resort can be had in a few days or weeks after its announcement, and a lawyer's library can, at slight expense, be furnished with the decisions not only of his own state but of several others having not unlike laws and institutions. the multiplication of american reports makes judicial precedents of decreasing value to the american lawyer. english cases are cited as authority far less frequently than they were before the middle of the nineteenth century. the omnipotence of parliament and the free hand with which that has been exerted to change the common law have tended to separate english from american jurisprudence. our written constitutions have perpetuated here ideas of government and property which england does not recognize. hence american precedents are of more use than english. but american precedents are becoming so numerous that the advocate who seeks to avail himself of them is tempted to cite too many and to examine them with too little care. in each state its own reports are the expression of its ultimate law. with these every member of its bar must be familiar. but the courts before which he argues listen to him with more satisfaction and greater benefit if he deals with the principles of law rather than with foreign precedents which may or may not correctly apply them.[footnote: see a valuable statistical article on "reports and citations" in _law notes_ for august, .] not every opinion which is delivered is officially reported. in most states the court has and exercises the power of directing that such as they may deem of no substantial value to the profession at large shall not be. many are simply applications of familiar rules which obviously control. opinions of that kind interest only the lawyers in the cause. in the unofficial reports, however, such cases are sure to appear and the bar is divided in opinion as to whether they should not also be given a place in the official ones. it is not always easy for the court or the reporter to determine what decision may thereafter be relied on as a precedent. repeated instances have occurred in which such a use has in fact been made and properly made of some not noted in the regular reports, and not infrequently they have subsequently been inserted in them.[footnote: in the centennial volume (vol. cxxxi) of those of the supreme court of the united states, one hundred and twelve opinions are printed, the first delivered over fifty years before, which previous reporters had thought best to omit, and two hundred and twenty-one more such are published in vol. cliv. whoever runs them over will be apt to think that the previous reporters were right.] there is also in case of an opinion not to be officially reported a loss of a valuable safeguard against unsound decisions. a judge writes with more care and examines the points of law which may be presented more closely if he writes for the public and for posterity. on the whole the prevailing sentiment is that the reasons for repressing some are stronger than those for publishing all judicial opinions. it will be few only that, under any circumstances, will be omitted. the leading lawyers in every state are expected to run over, if they do not read, every case in every new volume of its reports. every case dropped lightens this task. it helps to keep indexes of reports and digests of reports and legal treatises within reasonable limits. it cuts into an accumulating mass of material, most of which must, in any event, so far as points of law are concerned, be a mere repetition of twice-told tales, that is becoming so vast in the united states as to becloud rather than illuminate whoever seeks to know what american law really is. if reporters will not select and discriminate between adjudged cases publishers can and will. many sets have been prepared and issued in recent years of selected cases on all subjects taken from the official reports of all the states. their professed aim has been to include all worth preserving. in fact, they have naturally been guided to a considerable extent by commercial considerations. to every lawyer the leading cases in his own state are of the first importance. he is not likely to buy any compilation in which a number of these do not appear, even if intrinsically, as statements of law, they may be of no great value. hence in the collections in question the rule of selection is often the rule of three, and they are apt to contain a certain proportion of the decisions of every state. the leading sets are the "american decisions," running from [footnote: long after the publication of kirby's reports in , some unofficial reports were published of cases decided in colonial courts prior to any which he included.] to ; the "american reports," from to ; the "american state reports," from to the present time, which three sets include over two hundred and fifty volumes and nearly , opinions; and the "lawyers' reports annotated," now extending over more than sixty volumes, the first of which was published in , and contains no cases reported prior to the preceding year. spencer's rule of social evolution that all progress is from the homogeneous to the heterogeneous tends steadily and inexorably in the united states to lessen the value of judicial reports out of the state in which the cases were decided. each of forty-five different commonwealths is building upon legal foundations that are not dissimilar, but some of them are advancing far faster than others, and none proceed at exactly the same rate or on exactly the same lines. they are building by statute, by popular usage and by judicial decision. heterogeneity is most marked in legislation and it tells most there. whoever looks over a volume of reports will find a large proportion of the cases turning upon some local statute. an important index title is that of "statutes cited and expounded." in vol. , for instance, of the massachusetts reports (a volume selected at random for this purpose), statutes or sections of statutes are noted as having been made the subject of remark in the cases which it contains. almost all are massachusetts statutes, a very small proportion of which have been re-enacted elsewhere. appellate courts thus forced at every turn to study with care into the effect of local legislation, much of which, to get at its meaning, must be traced back historically through various changes during a long course of years, and in the older states sometimes for centuries, listen unwillingly to citations from decisions of other states which are even remotely affected by the statutes that may be there in force. the newer states and those with a small population are naturally the ones that rely most on foreign authority. in the last volume (vol. ) of the nevada reports, sixty-two per cent, of the cases cited in the opinions of the court are of that kind. in the last volume (vol. ) of the new york reports, the percentage is but thirty, and in the last of the massachusetts reports (vol. ) it is only twenty-five.[footnote: _law notes_ for april, , .] * * * * * in the supreme court of the united states and in several of the appellate courts of the larger states each judge is provided with a clerk at public expense. while this is a means of relief from much which is in the nature of drudgery, it sometimes leads to a deterioration in the quality of the judicial opinions. a dictated opinion is apt to be unnecessarily long, and when a clerk is set to looking up authorities, although he can hardly be expected always to select the most apposite, it is easier to accept his work and use what he has gathered than to institute an independent search. some of the appellate courts which are most fully employed, both state and federal, are provided with special libraries of considerable extent, and each of the individual judges is also often furnished with an official library, sometimes containing several thousand volumes, for his personal use, to be handed over to his successor when he retires from office.[footnote: in new york, the private library of the court of appeals contains over , volumes, comprehending all the reports of all the states, and the personal libraries provided for each judge have come to comprise , volumes.] in some states counsel have the right to demand to be heard before a full court, and those who have taken the appeal generally exercise it. as decisions go by majorities, the chance of reversing a judgment before, for instance, a court of five, which is a common number, is obviously greater when all its members sit than when four do. in either case it must be the act of three judges, and one is more likely to convince three out of five than three out of four. in the supreme court of the united states there is no means of supplying the place of a judge who is absent or disqualified. the remaining members, provided they constitute a quorum (that is, a majority), proceed without him. in most of the states there is some provision for filling the vacancy in such a contingency. sometimes it is by calling in a judge of an inferior court; sometimes by application to the governor for the temporary appointment of some member of the bar as a special associate justice to sit in a particular case. in several of the larger states all the members of the court of last resort do not and need not sit in every case. in some two permanent divisions are constituted, to each of which certain judges are assigned, and both divisions may be in session at the same time. in other states certain judges are detached for a certain time, during which they study causes which have been argued and prepare opinions. this done, they resume their seats, and others are released for similar duties. in ohio, for instance, the supreme court consists of six judges and commonly sits in two divisions of three each, having equal authority. the whole court sits to hear any cause involving a point of constitutional law. it also decides those which have been heard in one of its divisions and in which the divisional court is in favor of reversing the judgment appealed from. an affirmance by the divisional court is final, but if it inclines to a reversal the judges communicate their opinions to the full court, which also reads the printed briefs submitted on the original argument, and then without any further oral hearing pronounces final judgment. four judges, therefore, at least, must concur to accomplish a reversal. should the full court in any case be equally divided, the judgment appealed from stands. under the constitution of california (art. vi, sec. ) the supreme court, which consists of seven judges, ordinarily sits in two departments. three judges can render a decision, but the judgment does not go into full effect for thirty days unless three, including the chief justice, have given it their approval. the chief justice also, with the concurrence of two of his associates, or four of these without his concurrence, can direct that any cause be heard before a full court within thirty days after judgment by a department court. he can also order the removal into the full court of any cause before judgment. in michigan only five out of the eight judges sit to hear a case, and if one of them files an opinion dissenting from that of his associates, the losing party can demand a rehearing before the full court. neither the bar nor the bench are quite satisfied with such methods of appellate procedure. the ohio scheme is excellently adapted for the dispatch of business, but may prevent an oral argument before those who are ultimately to decide the cause. that of california often protracts litigation. any such plan of division also must increase the risk of the court's taking a position inconsistent with one which it had previously assumed. the judges in one division may come to conclusions different from those reached in the other division; or where the court does not sit in divisions, a point may be determined by a narrow majority in one case which in a later one, through the substitution of one or two judges for those who heard the former, may be ruled the other way. the freedom of appeal which is generally conceded to defeated litigants in this country has been made the subject of severe criticism. it seems, however, a necessary incident of our political institutions. they are built upon the foundation of a profound reverence for the rights of the individual and of the equality of all before the law. our constitutions guaranty every man against deprivation of life, liberty or property without due process of law. if we could count on having as judges of our trial courts none but men of ability, learning and independence, it might be safe to leave it to them to say what this due process was. but the tenure of judicial office in most states is too brief, the pay too meagre, and the mode of appointment too subject to political influence to give always that assurance that could be wished either of the independence of the judiciary or of its representing only what is best in the legal profession. in england, until recently, there was little or no right of review in favor of one convicted of crime. but the judges are appointed for life on ample salaries, and tradition requires that they be selected only from among the leaders at the bar. nor is the right of the individual against the state deemed so sacred under english as under american institutions. it cannot be in any country where an hereditary aristocracy has from ancient times had a share in government. as has been seen, the english practice in this respect for nearly a hundred years was adopted in the courts of the united states, but public sentiment finally pronounced against it. much less could it be safely followed in the states, where criminal courts are often held by judges of little ability, less learning, and inferior standing at the bar, to which, after the expiration of a brief term, perhaps of but a year, they will return should they fail to secure a party renomination. the same reasons, if in less degree, support a liberal right of appeal in cases involving property only, and oppose restrictions based only on the amount in controversy. americans could never tolerate keeping their appellate courts for the trial of large causes only. there must be no rich men's courts. there certainly must be none to which a claim of right founded on a constitutional provision cannot be carried up, however trifling in pecuniary value may be the matter in demand. most appeals fail. there are few in which the counsel who takes them are fully confident of success. every lawyer of large experience knows that he has often won when he expected to lose, and lost when he expected to prevail. there are not many cases involving large pecuniary interests or strong personal feeling that are not appealed if there is any color for it. the proportion of appeals which are successful will generally be not far from a third of the whole number taken. of course, however, this must depend largely on the competency of the trial judges in the court where it is claimed that errors have occurred. the abler and more experienced those who do circuit duty may be, the oftener will their doings be supported in the court of last resort. short terms of office and consequent lack of practical acquaintance with the business of a trial judge is the real cause why so many appeals are taken, and are allowed to be taken in our american states. as for the federal courts of appeal, there is another and unavoidable occasion for large dockets. they have the last word to pronounce on constitutional questions, and there has probably never been a year since the united states came into existence when the legitimate powers of the general government have not been repeatedly infringed upon by state legislation. in the supreme court of the united states, the reporter began its second century with a plan of stating the number of cases affirmed or reversed at each term, but dropped it after two years. the record of these years was as follows: affirmed reversed october term, october term, a tabulation of the decisions reported in the various states in their last volumes published prior to june, , shows that on a general average, in sixty-three out of every hundred appeals the judgment of the inferior court was affirmed. in massachusetts the percentage was eighty-seven per cent. in texas it was only thirty-four per cent., and in arkansas and kentucky not much over forty per cent.[footnote: _law notes_ for june , p. .] many more appeals are taken by convicted persons in criminal cases at the south than in the north. many more criminal prosecutions are brought there, in proportion to the population. this is due largely to the presence of so large a body of colored people, most of whom have had a very inferior education and training. many more such appeals are successful also in the south than in the north. in the reports of the courts of last resort of alabama, florida, louisiana and mississippi between december , , and april , ,[footnote: as given in vol. xxxiii of the southern reporter.] ninety-four criminal cases appear, in forty-six of which the judgment of conviction was set aside. in connecticut, delaware, maine, maryland, new hampshire, new jersey, pennsylvania, rhode island and vermont between march and june , ,[footnote: as given in vol. liv of the atlantic reporter.] the reports show only twenty such cases, of which seven were set aside.[footnote: _law notes_ for september, , .] this would seem to indicate either that the trial judges of criminal courts in the gulf states are careless or that the appellate courts there (under the pressure, perhaps, of unwise statutes)[footnote: see paper on "judicial independence," by justice henry b. brown in the reports of the am. bar association for , .] are inclined to be too technical. if either is true it is a just cause for public dissatisfaction with the administration of criminal justice, and some palliation for the frequent resorts to lynch law by the southern people. the american plan of written opinions, at least in all cases of novelty or general interest, works better in small states than in large ones. no judge can find time to prepare more than a certain and quite moderate number in a year, if they are such as they should be. the shorter they are, the more time generally has been spent in condensing them. in a great state there must, therefore, either be a larger number of judges, or every few years there must be a temporary addition to the judicial force to clear off an accumulation of cases. the latter expedient is generally preferred. sometimes a small number of lawyers are selected to serve as a special commission of appeals. they sit by themselves, but there may be a provision for their submitting their opinions to review by the regular court. some of the leading cases in our reports have been decided by such commissioners. in california, where such a body now exists, its members are appointed by the court, and removable at its pleasure; but ordinarily they are chosen by the executive or legislative departments. sometimes when the cases on the docket of the court of last resort reach a certain number (in new york this is put at ) the governor may call in judges of the next court in rank to sit with the regular judges until the accumulation is cleared off. fewer causes can be heard and disposed of in american appellate courts than in those of other countries by reason of two things, our practice of delivering written opinions and the fulness of treatment thought necessary in such opinions, especially when they deal with questions of constitutional law. in france, the court of cassation in heard appeals.[footnote: of these, were sustained and rejected.] nothing approaching this number could be properly disposed of on the merits in any american court of last resort. many appeals, however, are here, as everywhere, abandoned or dismissed for some failure to comply with the rules of practice or because manifestly frivolous, and in these no opinions are ordinarily given. during the court year closing with the summer of , the court of appeals of new york filed only opinions, although it disposed, in one way or another, of cases; and the supreme court of the united states filed opinions and disposed of cases.[footnote: see chap. xxiv.] in the calendar year , the court of appeals of new york filed opinions, and the supreme court of illinois over . * * * * * chapter xx the enforcement of judgments and punishment of contempts of court no court can with propriety pass a decree which it cannot enforce.[footnote: clarke's appeal from probate, conn. reports, , ; atlantic reporter, ; u. s. reports, .] after the judgment comes the issue of appropriate process to compel obedience to it, unless such obedience (as is generally the case) is voluntarily rendered. the whole power of government is at the command of the court for this purpose. a sheriff with a judicial process to serve who meets with resistance can summon to his aid the _posse comitatus_. by this term is meant the whole power of his county; that is, any or all of its able-bodied inhabitants on whom he may choose to call. not to respond to such a call is a legal offense. the marshals have similar powers in serving process from the federal courts. the fact that there is this force behind a writ is so well understood by the community that occasions for resorting to its use, or indeed to the use of any actual force, are extremely rare. if the process was lawfully issued, it would be useless to resist. if unlawfully, it is easier and safer to seek relief by an injunction, or in case of an arrest, by a writ of _habeas corpus_. but there have been occasions in the judicial history of the united states when, under the influence of a general popular ferment, the service of process from the courts, and even the holding of courts, have been forcibly prevented. shay's rebellion in massachusetts (in ) was the first of these after the revolution. similar uprisings of less importance took place at about the same time in new hampshire and vermont. a few years later, the service of process from the new york courts was interrupted in columbia county. there was a strip of territory adjoining the hudson river, title to which was claimed both by new york and massachusetts. conflicting claims, awaking much bitter feeling, arose under grants from each government. in , the sheriff of columbia county was ordered by the courts, in the course of a lawsuit, to sell a tract of this land. seventeen persons disguised as indians appeared at the time of sale to resist it, and he was killed by a shot from one of them.[footnote: report am. historical association for , i, , note.] then came the whiskey rebellion in pennsylvania. the statutes of the united states[footnote: united states revised statues, .] provide that if their courts meet with opposition of a serious nature, the president may use the army or call out the militia of one or more states to restore order. opposition to the enforcement of the revenue tax on whiskey in called for the first exercise of this power. marshals were resisted in serving process, and several counties were in a state of insurrection. washington sent so large a force of troops to suppress it that the rioters vanished on their approach, and there was no further obstruction of the ordinary course of justice. the total expense to the government in this affair was nearly $ , , .[footnote: wharton's "state trials," .] in , somewhat similar opposition arose in the same state against the enforcement of the house taxes laid by congress. president adams here also sent a sufficient force of militia to suppress it.[footnote: _ibid_., , .] in , a general combination was formed among the tenant farmers in new york holding long or perpetual leases from manorial proprietors to resist the payment of the stipulated rents. in several counties the greater part of the land was occupied under such a tenure. the design was to compel the landlords to sell to the existing tenants at a price fixed by public appraisal, or else that the state should take the lands by eminent domain and dispose of them to the same persons on reasonable terms. sheriffs were forcibly prevented from serving writs in dispossession proceedings. one who took with him a _posse comitatus_ of five hundred armed men, a hundred of whom were mounted, was met and turned back by a larger band, who were all mounted. the governor was finally compelled to issue a proclamation against the "up-renters," as they were called, and to protect the sheriff by a large body of militia. put down in one county, the movement soon reappeared in others. disguises were assumed, the rioters figuring under indian names and wearing more or less of the indian garb. three hundred of them, with twice that number not in disguise, prevented a sheriff from levying an execution for rent on tenants upon the livingston manor. for six years the contest went on in several counties. several lives were lost on both sides. sheriff's officers were tarred and feathered and their writs destroyed. of the rioters many were arrested and prosecuted from time to time and some convicted. five were sent to the state's prison for life. two were sentenced to be hanged. the state used its militia freely to defend the sheriffs, at a cost in one county of over $ , , and in a series of prosecutions and convictions, resulting in over eighty sentences at one term of court, broke the back of the insurrection. it died half-victorious, however, for an "anti-rent" governor and lieutenant-governor were elected the next year, and several statutory changes in the law of leases which the malcontents had desired were soon afterwards enacted.[footnote: see paper by david murray on the "anti-rent episode in new york," report of the american historical association for , i, .] during the period of reconstruction in the southern states, following the civil war, the courts were repeatedly broken up by violence and the service of legal process resisted, in some instances by authority of the military governor.[footnote: s. s. cox, "three decades of federal legislation," , , , , , , .] the writ to enforce the judgment of a court of law is called an execution. it is directed to the sheriff or other proper executive officer, and requires him to seize and sell the defendant's property or, as the case may be, to arrest and imprison him, to turn him out of possession of certain lands, or to take some other active step against one who has been adjudged in the wrong, in order to right the wrong, as the judgment may command. a judgment for equitable relief is not ordinarily the subject of an execution.[footnote: see chap. viii.] a judgment at law is generally to the effect that one of the parties shall recover certain money or goods or land from the other. on the prevailing party lies the burden of moving to get possession of what has thus been adjudged to be due. this he does by taking out an execution. a judgment in equity is an order on the defendant to do or not to do some particular act. it is now an affair between him and the court. he must obey this mandate or he will be treating the court with disrespect. to treat a court with disrespect, or, in legal parlance, to be in contempt of court, is to incur very serious responsibilities. it is in the nature of a criminal wrong, for it is a direct opposition to the expressed will of the state. whoever is guilty of it makes himself liable to arrest and to be subjected to fine or imprisonment. if, for instance, an injunction is obtained in a suit for the infringement of a patent right, it becomes at once the duty of the defendant to desist from making or selling what the plaintiff has proved that he only can lawfully make and sell. if he does not desist, the plaintiff can complain to the court, and if after a preliminary hearing it appears that his complaint is well founded, can obtain a warrant of arrest, styled a "process of attachment." on this, the proper officer takes the defendant into custody, and brings him before the court to answer for violating the injunction order. if the case is an aggravated one, he will be both fined and imprisoned, and the imprisonment will be in the common jail for such time as the court may order. it is the sting in the tail of an injunction that makes it especially formidable. the debtor who fails to pay to the sheriff, when demand is made upon an execution, a judgment for money damages commits no contempt of court. the man who keeps on doing what a court of equity has forbidden him to do does commit one. a conspicuous instance of the efficacy of an injunction was furnished by the great chicago railroad strike and boycott of , initiated by the american railway union. mob violence followed. more than a thousand freight cars were burned. trains were derailed, passengers fired at, and lives lost. the officers of the union, after two or three weeks, wrote to the managers of the railroads principally affected, describing the strike as threatening "not only every public interest, but the peace, security and prosperity of our common country."[footnote: united states _v._ debs, federal reporter, , .] a temporary injunction was issued against these officers and others by the circuit court of the united states in an equitable action brought by the united states under the direction of the attorney-general. they disobeyed the injunction. their arrest for this contempt of court promptly followed. this stopped the flood at its source. to quote from testimony given a few weeks later by mr. debs, the president of the union, "as soon as the employees found that we were arrested and taken from the scene of action, they became demoralized and that ended the strike.... the men went back to work and the ranks were broken and the strike was broken up,... not by the army, and not by any other power, but simply and solely by the action of the united states court in restraining us from discharging our duties as officers and representatives of our employees."[footnote: united states _v._ debs, federal reporter, , .] the defendants in the contempt proceedings having been found guilty and sentenced to jail for terms varying from three to six months, appealed to the supreme court of the united states, but without avail.[footnote: _in re_ debs, u. s. reports, , .] injunctions not infrequently are granted as an equitable relief against a legal judgment. _summum jus, summa injuria_ is an ancient maxim of the courts. the foundation of equitable jurisdiction is that courts of law cannot always do justice. one may, for instance, be invited to build a house on another's land, and promised a deed of the site. he builds the house and then is refused a deed. the invitation and promise were by word of mouth. the rules of law make such a house the legal property of the landowner. the rules of equity make it the equitable property of the man who built it on the faith of the landowner's invitation and promise. if the latter sue at law for the possession of the house, he may get judgment, but equity will prevent his enforcing the judgment, not because it is not a legal judgment, but because he is endeavoring to make an inequitable use of a legal right. a court of equity sometimes makes a decree establishing a title. to enforce such a judgment, a writ may be issued, called a writ of assistance. it is directed to the sheriff and requires him to do some specific act, such as putting the defendant out of possession of certain lands and turning it over to the plaintiff. it is, as appears from instances which have been given, possible that the execution of process from the courts may be defeated by violence which they cannot overcome. it is possible in fact though impossible in theory. as the sheriff can employ the _posse comitatus_, he ought always to have an overwhelming force at his command. but it is easier to "call spirits from the vasty deep" than to make them respond. public feeling may be so strong in opposition to the service of the process that mob violence will be tolerated and even openly supported. an armed mob can only be effectually met by an armed force which is not a mob--that is, by disciplined soldiers. the sheriff, if so opposed, may call upon the governor of the state for military assistance. how efficient it will prove will, of course, depend on the discipline of the militia and the firmness of its commanding officers. it is seldom that it fails to restore order, if the men carry loaded guns and are directed to fire at the first outbreak of forcible resistance. but the governor may refuse to comply with the sheriff's request. in such case, the execution of the process of the court fails because of want, not of power, but of the will to exercise it on the part of those on whom that duty rests. in every government constituted by a distribution of the supreme authority between different departments, each of them must do its part loyally with respect to the others, or the whole scheme, for the time being, breaks down. in the united states this danger is doubly great because of the interdependence of the general government and the particular states. judicial process may issue from a state court against those who oppose its execution under claim of authority from the united states; or from a federal court against those who oppose its execution under claim of authority from a state. some instances of such conflicts of jurisdiction have been already mentioned.[footnote: chap. x.] when the supreme court of the united states reverses a judgment of a state court, it can either[footnote: u. s. revised statutes, sec. .] itself render the judgment which the state court ought to have rendered, and issue execution, or remand the cause to it with directions that this be done. if the latter course be taken, the directions may be disobeyed. a georgia court was guilty of this contumacy in the case of worcester _v._ georgia.[footnote: peters' reports, , .] if the former course be taken, the service of the execution may be resisted by the power of the state. worcester was illegally confined in the georgia penitentiary. the sentence against him had been set aside and the indictment adjudged to furnish no ground of prosecution. but if the supreme court had rendered a judgment dismissing the prosecution, and given a writ to the marshal directing him to set worcester at liberty, the officer would have found the prison doors shut in his face. every prison is a fortress, so built as to prevent rescue from without as well as escape from within. to lay siege to one would be too great an enterprise for the marshal to undertake without military assistance. for this the president could have been called upon. but he might have refused it. if so, the judgment of the judicial department would have proved inoperative, simply because the officer charged with the duty of rendering it operative had declined to fulfil that duty. the supreme court, in the worcester case, probably had reason to believe that if it had directed a call on president jackson for a military force it would have been refused. it is reported that the president, in private conversation, intimated as much. possibly he might have been justified in the refusal. south carolina was on the brink of war with the united states. georgia was her next neighbor, and might have been induced to make common cause with her, if jackson had battered down the doors of her penitentiary to release a man who, her courts insisted, had been properly convicted of a serious crime. a court can do nothing short of justice. the executive power, perhaps, may sometimes rightly act or decline to act from motives of national policy. in one instance the armed forces of a state were actually engaged, under the authority of the legislature, in forcibly resisting the service of process from the federal courts. it was in , when the marshal in pennsylvania was opposed by a large body of the militia called out by order of the governor for the purpose. their commanding officer was subsequently arrested and convicted for the offense in the circuit court of the united states.[footnote: wharton's state trials, ; mcmaster, "history of the people of the u. s.," v, ; willoughby, "the american constitutional system," , .] in , the governor of ohio refused to honor a requisition from the governor of kentucky for the surrender of a fugitive from justice. the act charged was assisting a slave to escape. this was a crime in the state from which the man had fled, but not in the state where he had found refuge. the supreme court of the united states was asked by kentucky to compel the surrender. it held that the governor had violated his duty, but that the constitution of the united states furnished no means for enforcing its performance by him.[footnote: kentucky _v._ dennison, howard's reports, , .] under the shelter of this doctrine, a man indicted for murder in kentucky has been for several recent years residing in safety in indiana, because the governor of that state has refused to comply with repeated requisitions for his surrender. * * * * * every court of record while in session has inherent power to compel all who appear before it to preserve order, to obey its lawful commands issued in due course of judicial procedure, and to refrain from any expressions of disrespect to its authority, under pain of fine or imprisonment, or both. this power, unless withdrawn by statute, belongs to any justice of the peace who has authority to hold a court of record, while he is holding one. commonly it is, in his case, regulated by statute.[footnote: church _v._ pearne, conn. reports, ; atlantic reporter, .] at common law, superior courts of record also have power during the progress of a cause to repress or punish any disrespectful acts or words done or uttered, not in its presence, but so near to it as to constitute a breach of order or tend directly to lessen its efficiency. these are deemed powers inherent in such a court, because necessary to support its proper dignity and independence. statutes are common to define or restrict them, but they cannot take them away altogether. to do so would be to take away an essential incident of the judicial power. nor can they so far reduce the penalty that may be inflicted as to deprive the court of a reasonable measure of the right of self-protection.[footnote: batchelder _v._ moore, california reports, .] it is, to say the least, doubtful if they can even restrict its exercise by any court created by the constitution itself.[footnote: state _v._ morrill, arkansas reports, ; state _v._ shepherd, missouri reports, ; southwestern reporter, ; _ex parte_ robinson, wallace's reports, , .] the accused is not entitled as of right to a trial by jury. the judge is the best guardian of the dignity of the court.[footnote: _in re_ debs, u. s. reports, , .] the rule of criminal law that to convict a man of crime requires proof of guilt beyond a reasonable doubt applies to all proceedings of contempt. the accused is also allowed to go free on giving bail until final sentence, if that is to be preceded by any preliminary inquiry involving adjournments from day to day. no such inquiry is necessary when the contempt is plain and was committed in the presence of the court. in the courts of the united states and in most of the states no appeal is allowed for errors in law from a summary sentence of punishment for a contempt of court. appeals lie only from final judgments in a cause, and such a sentence for contempt is not so regarded.[footnote: _ex parte_ bradley, wallace's reports, , .] if the contempt be (as it may be) made the subject of a formal criminal prosecution and a jury trial, an appeal is allowed. a punishment inflicted for contempt, even though it goes beyond the rightful jurisdiction of the court in such a matter, is a judicial act, and does not expose the judge passing the sentence to an action for damages.[footnote: bradley _v._ fisher, wallace's reports, .] * * * * * chapter xxi judicial proceedings in territory subject to martial law martial law is the exercise of military power. it is martial rule at the will of the commanding military officer. in time of war and at the seat of war martial rule is a necessity, and under such conditions martial law may rightfully be enforced by any sovereign as an incident of the war, whether that is being waged with foreign or domestic enemies. the case is different when, though war exists, an attempt is made to enforce martial law at a place which is not the seat of war, nor so near it as to make military rule necessary for military success. constitutional provisions may also affect the question. those affecting the united states contain limitations stricter than those found in some of the state constitutions. ordinarily no military officer can rightfully enforce martial law in a place where the regular courts of his sovereign are open and in the proper and unobstructed exercise of their jurisdiction.[footnote: _ex parte_ milligan, wallace's reports, , .] the first serious contest between the judiciary and the military power in this country as to the questions thus involved took place during the war of . general jackson, in , was at new orleans in command of the military department of the south. the city was threatened with invasion. he declared martial law, and not long afterwards arrested a mr. louaillier, a member of the state legislature, for writing a newspaper article in which he objected to the continuance of this kind of military government. louaillier obtained a writ of _habeas corpus_ from the district judge of the united states (judge hall), directed to jackson. the general, instead of obeying it, forthwith took possession of the original writ, arrested the judge, and deported him from the city. two days later despatches were received from the war department officially announcing the conclusion of a treaty of peace. judge hall now returned, and a rule to show cause why jackson should not be attached for contempt of court was issued. jackson appeared and filed a long answer, first stating various objections to the jurisdiction, and then setting up the circumstances calling for his proclamation of martial law. he had been told, he said, that the legislature was "politically rotten." the governor had warned him that the state was "filled with spies and traitors," and advised, in the presence of judge hall, and with no dissent from him, that martial law be proclaimed. it seemed a time when "constitutional forms must be suspended for the permanent preservation of constitutional rights." the lengthy paper, which was evidently written by a skilful lawyer, closed thus: "the powers which the exigency of the times forced him to assume have been exercised exclusively for the public good; and, by the blessing of god, they have been attended with unparalleled success. they have saved the country; and whatever may be the opinion of that country, or the decrees of its courts in relation to the means he has used, he can never regret that he employed them."[footnote: reid and baton's "life of andrew jackson," , .] the court, not particularly impressed with these arguments, ordered the proceedings to go forward and required the general to answer certain interrogatories respecting his course of conduct, by a day appointed. he appeared on that day and declined to answer them, with this concluding shot: "your honour will not understand me as intending any disrespect to the court; but as no opportunity has been afforded me of explaining the reasons and motives by which i was influenced, so it is expected that censure will constitute no part of that sentence, which you imagine it your duty to pronounce."[footnote: _ibid_., .] the sentence was a fine of $ , , which was at once paid. the sympathy of the country was with "the hero of new orleans" in this affair, whose gallant defense of that city had cast a gleam of glory upon the close of a long and apparently fruitless war. some of her people subscribed the money to reimburse to him the amount of the penalty, but he declined to accept it. nearly thirty years afterwards congress made an appropriation for the purpose, and he received the full amount with interest (in all $ , ) from the treasury, as a legislative compensation for a judicial wrong. it would seem, however, that judge hall acted within the limits of his authority. when he signed the writ of _habeas corpus_ the state was at peace, and it was generally known, though not officially proclaimed, that a formal treaty of peace had been signed between the united states and great britain. the courts were open; his court was open; and the general should have respected the process which issued from it.[footnote: johnson _v._ duncan, martin's la. reports, o. s., . see opinion of mr. justice miller in dow _v._ johnson, u. s. reports, , ; _ex parte_ milligan, wallace's reports, , .] during the civil war, president lincoln was responsible for many arrests by military officers of citizens of states remote from the seat of actual hostilities, and in which the courts were open. at its first outbreak he entirely suspended the privilege of the writ of _habeas corpus_, and one issued by the chief justice of the united states was disobeyed.[footnote: _ex parte_ merryman, taney's decisions, .] congress in enacted that any order of the president, or under his authority, in the course of the war, should be a defense to any action in any court for what was done by virtue of it. the state courts disregarded the statute. if, they said, either the common law or martial law justified the order, it justified the act; if neither did, the fiat of congress cannot make the act a lawful one.[footnote: griffin _v._ wilcox, indiana reports, .] the supreme court of the united states had this question before them, but did not find it necessary to decide it.[footnote: bean _v._ beckwith, wallace's reports, ; beckwith _v._ bean, u. s. reports, . (see the dissenting opinion of two justices in the last report, p. .)] had they done so, it would probably have been answered in the same way. missouri inserted in her constitution of a provision similar to the act of congress. this, of course, so far as that state could do it, abrogated any rule of law to the contrary, and it was held not to contravene any provision of the federal constitution.[footnote: drehman _v._ stifle, wallace's reports, .] the transaction in controversy, however, was before the adoption of the fourteenth amendment, and had the prohibition in that been then in existence, a different result would probably have been reached. the governor of north carolina (william w. holden) in declared two counties in a state of insurrection. the militia were called out and a number of citizens arrested. writs of _habeas corpus_ in their favor were issued by chief justice pearson of the supreme court of the state against the military officers.[footnote: _ex parte_ moore, north carolina reports, ; north carolina reports, appendix, .] they at first refused, by the governor's authority, to obey them. similar writs were then obtained from the district judge of the united states, upon which the petitioners were, by the governor's orders, produced before the state judge. the result was the impeachment of governor holden and his removal from office.[footnote: s. s. cox, "three decades of federal legislation," .] while martial law is the will of the commanding officer, it may be his will to have it applied, so far as ordinary matters of litigation are concerned, by courts. for that purpose, when in occupation of enemy's territory, he may allow the courts previously existing under the government of the enemy to continue in the exercise of their functions as his temporary representatives; or he can institute new tribunals of local jurisdiction having the name and form of civil courts, and proceeding according to the ordinary rules of administrative justice. all such courts act really as his agents and subject to his control, but in practice he seldom interferes with their judgments. he cannot, however, in establishing such a temporary tribunal, give it the powers of an admiralty court over prize cases. the judgment _in rem_ of an admiralty court, condemning a captured ship as a lawful prize of war, is treated as conclusive all over the world; but this is because it is a decree of a competent court, properly established to administer a branch of maritime law which, in its main principles, is part of the law of nations and common to the world. no mere military court on enemy's territory occupies that position.[footnote: jecker _v._ montgomery, howard's reports, , .] this right of the military commander exists equally on foreign territory in military occupation and on domestic territory, when the ordinary courts of his country are not open. during our civil war, in , president lincoln, as commander in chief of the army and navy, set up a "provisional court for the state of louisiana," after the southern portion of that state had been occupied by the national forces and martial law declared. judge charles a. peabody of new york, who had been a justice of the supreme court of that state, was commissioned to hold it and to dispose of both civil and criminal causes. its docket became at once a full one, and important litigation was transacted there with general acceptance until the close of the war.[footnote: the grapeshot, wallace's reports, ; report of am. historical association for , .] in the original proclamation of martial law in louisiana the commanding officer announced that civil causes between parties would be referred to the ordinary tribunals. one of the state courts, known as a district court of the city and parish of new orleans, the judge of which took the oath of allegiance to the united states, continued to sit and dispose of business in the usual course. a few months later a citizen of new york sued a military officer before it for ravaging a plantation which he owned in louisiana, and recovered judgment. a suit upon it was afterwards brought in maine, where the defendant resided. he pleaded that the property of the plaintiff had been taken to furnish his troops with necessary supplies. the case ultimately came before the supreme court of the united states. here it was thrown out, the court saying that the district court of new orleans had no jurisdiction to call military officers to account for acts done under claim of military right.[footnote: dow _v._ johnson, u. s. reports, .] so far, however, as litigation between private parties unconnected with military operations is concerned, a court of this character, established by law, and suffered by the military authorities to continue its sessions, has competent jurisdiction, and its judgments will be enforced in other states.[footnote: pepin _v._ lachenmeyer, new york reports, .] they have no power to entertain criminal charges against those in the military service, who would be punishable by court martial.[footnote: coleman _v._ tennessee, u. s. reports, , .] in , during the war, but in indiana, a state distant from the seat of hostilities, the military commandant of the district ordered the arrest of a private citizen and his trial before a military commission on charges of conspiracy against the united states, as a member of a secret organization known as the order of american knights or sons of liberty. the trial resulted in his conviction, and a sentence to death, which was approved by the president of the united states. before it could be executed, he applied to the circuit court of the united states for the district of indiana for a writ of _habeas corpus_. the judges of that court were divided in opinion in regard to the case, but it was decided in his favor when it came before the supreme court of the united states.[footnote: _ex parte_ milligan, wallace's reports, , , .] the decision was unanimous, but in stating the reasons for it the court was divided in a manner which has not been uncommon since the death of chief justice marshall when any great question of a political nature has been involved. five justices held that the trial of a civilian by a military commission can never be vindicated in a peaceful state where the courts are open and their process unobstructed. four justices dissented, and chief justice chase thus summarized their conclusions: there are under the constitution three kinds of military jurisdiction: one to be exercised both in peace and war; another to be exercised in time of foreign war without the boundaries of the united states, or in time of rebellion and civil war within states or districts occupied by rebels treated as belligerents; and a third to be exercised in time of invasion or insurrection within the limits of the united states, or during rebellion within the limits of states maintaining adhesion to the national government, when the public danger requires its exercise. the first of these may be called jurisdiction under military law, and is found in acts of congress prescribing rules and articles of war, or otherwise providing for the government of the national forces; the second may be distinguished as military government, superseding, as far as may be deemed expedient, the local law, and exercised by the military commander under the direction of the president, with the express or implied sanction of congress, while the third may be denominated martial law proper, and is called into action by congress, or temporarily, when the action of congress cannot be invited, and in the case of justifying or excusing peril, by the president, in times of insurrection or invasion, or of civil or foreign war within districts or localities where ordinary law no longer adequately secures public safety and private rights. we think that the power of congress in such times and in such localities to authorize trials for crimes against the security and safety of the national forces may be derived from its constitutional authority to raise and support armies and to declare war, if not from its constitutional authority to provide for governing the national forces.[footnote: _ex parte_ milligan, wallace's reports, .] the constitution of the united states contains some provisions restricting the jurisdiction of military authorities and tribunals over controversies, which are not found in the constitutions of the states. it may well be that martial law has for the united states a narrower meaning than it may possess in a particular state. the legislature of rhode island in , during "dorr's rebellion," by a public act put that state under martial law until further order, or until its termination should be proclaimed by the governor. a squad of militia broke into the house of a private citizen to arrest him as an abettor of dorr, and were afterwards sued in trespass before the civil courts. the cause finally came before the supreme court of the united states, where (one justice only dissenting) it was held that the act could not be pronounced an unjustifiable exercise of legislative power under any provision of the federal constitution.[footnote: luther _v._ borden, howard's reports, , .] whether the courts of rhode island could have taken a different view, under the fundamental laws of the state, was not decided.[footnote: _ex parte_ milligan, wallace's reports, , .] on the other hand, there are states in which the constitution explicitly provides that "the military power shall always be held in an exact subordination to the civil authority and be governed by it."[footnote: constitution of massachusetts, declaration of rights, art. . _cf._ constitution of colorado, art. , sec, .] it is a serious question whether, under such provisions, a legislative or executive declaration of martial law in time of peace, in order the better to cope with some local disturbance, is to be regarded as an expression of the will of the civil authority, by virtue of which the civil courts lose the power of discharging on _habeas corpus_ one restrained of his liberty by military command. that it is such an expression was held in colorado in , but by a court composed of only three judges, of whom one, in a dissenting opinion, observed that the decision of his associates "is so repugnant to my notions of civil liberty, so antagonistic to my ideas of a republican form of government, and so shocking to my sense of propriety and justice that i cannot properly characterize it." a similar question arose, but was not judicially determined, in arkansas in . there was a contest over the election of governor. the constitution provided that such contests should be decided by the joint vote of both houses of the legislature. baxter, the candidate who was elected on the face of the returns, was declared elected by the president of the senate and took the oath of office. brooks, the other candidate, presented a petition for a contest to the lower house, which refused to grant it. he then applied to the supreme court on _quo warranto_ proceedings, which threw out the case for want of jurisdiction.[footnote: state _v._ baxter, arkansas reports, .] a similar suit was then brought in a _nisi prius_ court, on which judgment was rendered in his favor,[footnote: this judgment was reversed on appeal. baxter _v._ brooks, _id_., .] and he was put in possession of the executive chambers by an armed force which he assembled. baxter then declared martial law in the county in which the capital was situated, and arrested two of the judges of the supreme court on their way to attend a special session called to take action in _mandamus_ proceedings brought in behalf of brooks. they were rescued after a day or two by united states troops and proceeded to join their associates. the court then gave judgment for brooks in his third suit, directing the state treasurer to pay his warrants. at this point the legislature applied to the president of the united states for protection against domestic violence, under art. iv of the constitution of the united states, and his compliance by a proclamation officially recognizing governor baxter and ordering the federal troops to support him closed the history of this disgraceful incident.[footnote: mcpherson, "hand-book of politics for ," - .] * * * * * chapter xxii appointment, tenure of office and compensation of judges the oldest which survives of our american constitution, that adopted by massachusetts in , requires the appointment of judges to be made by the governor of the state, with the advice of the council, and for good behavior.[footnote: constitution of massachusetts ( ), chap. i, art. ; chap, iii, art. .] this plan was substantially followed in framing the constitution of the united states. that was planned for a small number of states, perhaps only nine, certainly at first not over thirteen. the senate, therefore, would be a body small enough to serve as an executive council. its necessary enlargement by the admission of new states has long made it but ill-suited for this purpose, and has thrown the power of confirming or rejecting an executive nomination for judicial office largely under the control of the senators from the state to which the person named belongs, although this control is much weakened if they do not belong to the party of the administration. the principle that the greater the concentration of the appointing power, the greater will be the sense of individual responsibility for every appointment made, makes this result of a senate of ninety members not wholly unfortunate. the president now consults a council of two. thirteen states in all originally gave to the governor the power either of appointing or of nominating the judges of the higher courts; fourteen gave their election to the legislature; the rest preferred an election by the people.[footnote: 'baldwin, "modern political institutions," , .] if we compare the original practice in each state with its present practice, we find that there are now fewer in which the governor appoints or nominates; fewer in which the legislature elects; more in which the people do. legislative elections have been found to imply a system of caucus nominations, and have often led to a parcelling out of places among the different counties in which geographical considerations told for more than did fitness for office. in one state[footnote: conn. constitution, twenty-sixth amendment.] since , the legislature has elected on the governor's nomination. in practice they have never failed to act favorably upon it. mississippi, which, in , became a leader in the movement toward the choice of the judges by popular election, in her latest constitution (of ) follows the plan of the united states, the governor nominating and the senate confirming. the action of the confirming or electing body when unfavorable in any state has generally been unfortunate. it is apt to be affected by local or personal political influence to which the chief executive would be insensible. a large number of able men have thus, from time to time, been deprived of a seat on the supreme court of the united states who would have added to its luster. in massachusetts lost a chief justice of the first rank in this way by the defeat of benjamin f. thomas. the council refused, by a majority of one, to confirm his nomination because, though of the same party with them, he was of a different wing.[footnote: proceedings mass. historical society, d series, xiv, .] in most of the states the judges are now elected by the people.[footnote: in thirty-three. in one other (florida) the people elect the judges of the supreme court, and the governor, with the advice and consent of the senate, appoints those of the superior courts. the governor nominates in delaware, mississippi and new jersey, and in the four largest new england states. in rhode island and vermont, south carolina and virginia, the legislature elects.] this makes the choice more a political affair. the nominations are made by party conventions, and generally in connection with others of a purely political character. it also, in case of a nomination for re-election, places a judge on the bench in the disagreeable position of being a candidate for popular favor at the polls and an object of public criticism by the political press. in a justice of the supreme court of michigan was nominated for re-election. there was an opposing candidate, some of whose friends published a statement that in the nine years during which the justice had already served he had written opinions in railroad and street railway cases of which were in favor of the companies. he was re-elected, but some time afterwards this fact was reprinted in a local periodical accompanied by the remark that "we must conclude that either the railroad and railway companies-- to --had exceptionally good cases from the standpoint of law and justice or his honor's mind was somewhat warped in their favor.... you can't expurge mental prejudice from judicial opinions any more than you can from the reasonings of theologians and atheists.... to imagine a justice deciding a case against his personal interests is too great a stretch of imagination for us to appreciate." a less brutal but more dangerous attack, made in by a religious newspaper, illustrates the same evil. the supreme court of nebraska has decided that under their constitution the bible cannot be used in the public schools. it was, of course, a pure question of the construction of a law, for the policy of which the court had no responsibility. the newspaper in question[footnote: the boston _congregationalist_ of oct. , .] which, though published in the east, had some circulation in that state, printed this paragraph: "the supreme court judge of nebraska who wrote the decision that the state constitution prohibits the use of the bible in the public schools is standing for re-election, and the fact that he made such a decision is not forgotten by the christian voters." in states the control of which by one of the great political parties is assured, the real contest is for the nomination, and here there is even more license for unfavorable comment on the judicial record of one who seeks it. in a southern state there was such a struggle in for the nomination of the prevailing party for governor. the person who then held that place desired it. so did one of the justices of the supreme court. it is said that the friends of the former circulated a cartoon representing the five justices together as five jackasses, and another in which the justice whom they were trying to run off the field was caricatured in the act of setting aside a verdict in favor of a child injured by a railway accident. the two candidates subsequently met upon the platform for a joint discussion of the issues before the people. the governor sharply criticised the character of the supreme court. the judge caught him by the collar and was about to strike him when friends intervened, and an explanation of the remarks was made which was accepted as satisfactory. in the heat of a political campaign men do not always stop to measure words or weigh questions of propriety. the personal character and public acts of an opponent are a legitimate subject of description and comment. sharp attacks must be expected as a natural incident of such a contest, and by candidates for judicial office as well as others. the public record of all for whom votes are asked at a public election must be the subject of open criticism, or there would be danger that unworthy men would succeed. to treat such observations as have been quoted upon opinions previously written by a candidate for re-election, however unseemly or unjust, as a contempt of court would be indirectly to impair the right of free suffrage. if assertions published as to acts done or words said are false, it does not follow that they are libellous. an honest mistake may be a defense for such a misstatement.[footnote: briggs _v._ garrett, penn. state reports, ; atlantic reporter, .] judges of trial courts, when candidates for re-election, may expect the publication of similar attacks on rulings which they have made. the following dispatches, which appeared in the same issue of a local newspaper in pennsylvania in , when a county election was soon to occur, will sufficiently illustrate this: hot judicial fight promised for mercer. county will be scene of an interesting struggle for seats in the legislature. sharon, pa., dec. .--from present indications the coming judicial fight in mercer county will be a bitter one. public interest centers in the efforts of judge s. h. miller and his friends to secure a re-election, and the attempts of his opponents to place a. w. williams of sharon on the bench instead. while the sole topic politically is on the judgeship, the twenty or more candidates for assembly are not losing the opportunity of fixing their fences. they, too, have assumed a reticence in regard to the matter of the judgeship. it is expected that on the last lap of the race williams and miller will be the only two men remaining. there are three other candidates for the republican nomination who have thus far announced themselves. they are: w. j. whieldon of mercer; w. w. moore of mercer, and l. l. kuder, burgess of greenville. judge miller and a. w. williams are the closest of friends. judge miller asks for moderation. bars pure food prosecutions by refusing to sentence those convicted. harrisburg, pa., dec. .--state dairy and food commissioner warren has been confronted with a new proposition in his crusade in western pennsylvania against violators of the pure food laws. judge s. h. miller of mercer county, before whom several oleomargarine dealers were recently convicted for the illegal sale of "oleo," has refused to sentence them on the ground that the procedure of the state pure food bureau is persecution and lacking in equity. he takes the position that grocers and saloon keepers, not being expert chemists, should at least be warned previous to arrest, and be given a chance to determine whether the foods they are handling are pure or adulterated. judge miller's position is a serious impediment in the way of the enforcement of the law, and commissioner warren is preparing to take action that may compel him to punish offenders convicted before him. not infrequently in the judicial history of the united states there has been presented to a judge the choice between rendering a decision according to his opinion of the law and the facts and losing his seat, and rendering one according to public opinion, or the public opinion of his party friends, and keeping it. a judge of the high court of errors and appeals in mississippi was one of the earlier martyrs in the cause of judicial independence. the state had incurred a heavy bonded debt, which she found it inconvenient to pay. the governor, who had approved the bills under which over $ , , of the bonds had been issued, concluded in , after the issue, that it was forbidden by the constitution of the state, and issued a proclamation declaring them void. in a suit in chancery this question came up for decision in . meanwhile the policy of "repudiation" had been made a political issue and the people had given it their approval by electing its advocates year after year to the highest offices. the chancellor upheld the validity of the bonds, and on appeal his decision was unanimously affirmed.[footnote: state _v._ johnson, mississippi reports, ; memoir of sergeant s. prentiss, ii, .] a few months later the term of office of one of the judges who had concurred in this opinion expired, and the people put a successor in his place who held doctrines better suited to the public sentiment of the hour. in the days preceding the civil war, the validity of the laws enacted by congress to secure the recapture of slaves who had fled to the free states was frequently attacked in the press and on the platform. the constitution expressly provided for such proceedings, and the supreme court of the united states in had pronounced the "fugitive slave law" of to be valid in all respects.[footnote: prigg _v._ pennsylvania, peters' reports, .] the principle of this decision plainly covered the later act of , but as public sentiment in the north became more and more uncompromising in its hostility to the existence of slavery under the flag of the united states, the state courts were not always strong enough to withstand the pressure to disregard precedents and let the constitution give place to what the phrase of the time called a "higher law." in , a citizen of ohio was convicted in the district court of the united states and sentenced to jail for rescuing a fugitive slave who had been recaptured in ohio by an agent of his master, to whom he had been committed in proceedings under the act of congress. he was imprisoned in an ohio jail, the united states then having none of their own, but placing all their convicts in state jails or prisons under a contract with the state to keep them for a certain price. his counsel applied to the judges of the supreme court at chambers for a writ of _habeas corpus_ against the ohio jailer. he produced his prisoner and submitted a copy of the warrant of commitment from the district court. the public were extremely interested in the outcome of the proceedings. the attorney-general of the state assisted in presenting the petitioner's case. the governor was one of the multitude present in the crowded court room. the attorney-general declared that the position that the supreme court of the united states had the power to decide conclusively as to the constitutionality of the laws of the united states and so tie the hands of the state authority was untenable and monstrous. "georgia," he said, "hung graves and tassel over the writ of error of this same supreme court. god bless georgia for that valiant and beneficent example."[footnote: _ex parte_ bushnell, ohio state reports, .] it was, he continued, "a sectional court composed of sectional men, judging sectional questions upon sectional influences."[footnote: _ibid._, .] of the five judges, three held that the constitutionality of the fugitive slave law was settled conclusively by repeated decisions of the supreme court of the united states, and that the state courts could not release the prisoner. chief justice swan gave the leading opinion. its positions were thoroughly distasteful to the people of ohio. he knew they would be. his term, which was one of five years, expired in the following february, and the vacancy was to be filled at the state election in october. on the day before the judgment was announced he told his wife that this would be fatal to his re-election. "if the law makes it your duty to give such an opinion," said she, "do it, whatever happens." he gave it, and what they anticipated occurred. the convention of his party declined to renominate him. he resigned his office immediately after the election and retired to private life at an age and under circumstances which made it impracticable for him to re-enter the bar with success, but with the consolation of knowing that he had acted right. chief justice day of iowa, one of the ablest men who ever sat on her supreme bench, in the same way lost a re-election by writing an opinion of the court, which announced a doctrine that was legal but unpopular.[footnote: koehler _v._ hill, iowa reports, , .] his term was soon to expire. he, too, knew that this decision would prevent his renomination, and it did. in , chief justice cooley of michigan, one of the great jurists and judges of the country, failed to secure a re-election to its supreme court, which he had adorned for twenty-one years, largely on account of an opinion which he had written supporting a large verdict against a detroit newspaper for libel. the newspaper, upon his renomination, described him as a railroad judge, and kept up a running fire through the campaign, which contributed materially to his defeat. political contests cost money, and if judges appear as candidates for popular suffrage they are naturally expected to contribute to the expense. the other candidates on the same ticket do this, and if those nominated for the bench did not, somebody would have to do it for them, thus bringing them under obligations that might have an unfortunate appearance, if not an unfortunate effect. in new york, where some of the judicial salaries are higher than anywhere else in the country, and the terms for the highest places are long (fourteen years), it has been customary for those placed in nomination to contribute a large sum to the campaign expenses of their party. this is tacitly understood to be a condition of their accepting the nomination, and the amount to be paid is fixed by party practice. for an original nomination by the party in power, it is said to be about equal to a year's salary; for a renomination half that sum may suffice. but a judge holding office by popular election must in any case owe something to somebody for supporting his candidacy. he is therefore under a natural inclination to use his power, so far as he properly can, in such a way as to show that he has not forgotten what his friends have done for him. there is always a certain amount of judicial patronage to be bestowed. there are clerks and messengers, trustees and receivers, referees and committees, perhaps public prosecuting attorneys and their assistants, to appoint. other things being equal, no one would blame a judge for naming a political friend for such a position. but as to whether other things are equal he is to decide. to the most upright and fearless man the danger of this is great; to a weak or bad man the feeling of personal obligation will be controlling. justice barnard of the supreme court of new york once observed on the bench that judges had considerable patronage to be disposed of at their discretion, and that for his part he had always succeeded in life by helping his friends and not his enemies. for this practice, among other things, he was impeached and removed from office; but how many judges are there who yield to this temptation without avowing it? a french critic of the elective judiciary has thus referred to these remarks of justice barnard: le juge barnard, qui formulait en plein tribunal cette déclaration de principes, fut décrété d'accusation et condamné, non sans justes motifs. mais son crime impardonable était de proclamer trop franchement les doctrines de la magistrature élective: il trahissait le secret professionnel.[footnote: duc de noailles, _cent ans de république aux etats-unis_, ii, .] most of the old thirteen states in their first constitutions provided that the judges of their highest courts should hold office during good behavior, or until seventy years of age. new york at first put the age of superannuation at sixty, but after losing by this the services of chancellor kent for some of his best and most fruitful years, postponed it to seventy. georgia was the first to set the fashion of short terms. her constitution of provided that the judges of her highest court should be "elected" for three years, but that those of her inferior courts should be "appointed" by the legislature and hold during good behavior. the legislature construed this as allowing it to frame such a scheme of election as it thought best, and that adopted was for the house to nominate three, from whom the senate elected one.[footnote: schouler, "constitutional studies," .] in all but three states (massachusetts, new hampshire and rhode island) at the present time all judges hold for a term of years, and as a general rule those of the higher courts have longer terms than those of the inferior ones. the change from life tenure to that for a term of years was partly due to several instances which occurred early in the nineteenth century, in which it was evident that judges had outlived their usefulness. judge pickering of the district court of new hampshire lost his reason, and to get rid of him it became necessary to go through the form of impeachment. in , judge bradbury of the supreme judicial court of massachusetts, who had been incapacitated by paralysis, was displaced in the same way, though only a few months before his death. in , an old man who was the chief judge of one of the judicial districts of maryland was presented by the grand jury as a "serious grievance," on account of his habitual absence from court. his physician certified that his life would be hazarded if he undertook to attend, but the natural answer was that then he should resign. at present, for judges of the state courts of last resort, the term in pennsylvania is twenty-one years (but with a prohibition of re-election); in maryland, fifteen; in new york, fourteen; in california, delaware, louisiana, virginia, and west virginia, twelve; in michigan, missouri, and wisconsin, ten; in colorado, illinois, and mississippi, nine. the general average is eight, although that particular number obtains in but seven states. in eighteen it is six. the shortest term is two, and is found in vermont. it may be noted that the original rule in vermont was to elect judges annually. as compared with the terms of office prescribed at the middle of the nineteenth century, those at the opening of the twentieth are on the average decidedly longer. * * * * * the compensation of most american judges is a fixed salary. in some states, courts of probate and insolvency, and in all justices of the peace when holding court, are paid by such fees as they may receive, at statutory rates, for business done. as in the case of sheriffs and clerks, judges under such a system sometimes receive a much larger official income than any one would venture to propose to give them were they to be paid for their services from the public treasury. a clerk of court often receives more than the judge, and some judges of probate and insolvency more than the chief justice of their state. in colonial times, judges were sometimes paid in part by fees, in part by occasional grants by the legislature, and in part by a regular stipend. this practice of legislative grants from time to time in addition to their salaries was continued in massachusetts in favor of the justices of the supreme judicial court for a quarter of a century, in the face of a constitution which provided that they "should have honourable salaries ascertained and established by standing laws."[footnote: memoir of chief justice parsons, .] it was evidently indefensible in principle, and to remove judges, as far as possible, from temptation either to court the favor or dread the displeasure of the legislature it is now generally provided in our american constitutions that their salaries shall be neither increased nor decreased during the term for which they may have been elected by any subsequent change of the law. in a few states it is thought sufficient to guard against the consequences of legislative disfavor, and the constitutions forbid only such a decrease of salary. the chief justice of the supreme court of the united states receives $ , a year and his associates $ , . circuit judges have $ , , and district judges $ , . in the states, the chief judge of the new york court of appeals receives $ , and his associates $ , . the same salaries are given in pennsylvania. in new jersey, the chancellor and the chief justice each receive $ , and the associate judges $ , . in massachusetts, the chief justice receives $ , and his associates $ , . in the other states less is paid, the average for associate judges in the highest courts being about $ , . only nine states pay over $ , . the chief justice in many receives $ more. these salaries are, however, generally supplemented by a liberal allowance for expenses, and in some states each judge is provided with a clerk. in new york, this addition amounts to $ , ; in connecticut, to $ , ; in vermont, to $ . the salaries for the highest trial court generally closely approximate those paid to the judges of the supreme court, and in case of trial courts held in large cities are often greater. those for the inferior courts are much lower. the judges of the principal _nisi prius_ court (which is misnamed the supreme court) in new york city are allowed by law to accept additional compensation from the county, and receive from that source more than from the state, their total official income being $ , . the trial judges in chicago also receive $ , , although the highest appellate judges in the state have a salary of only $ , . it is not surprising that american judicial salaries are no greater, but rather that they are so large. they are fixed by a legislature, the majority of the members of which are men of very moderate income, and when originally fixed in the older states it was often by men not altogether friendly to the judiciary. it was a saying of aaron burr, which was not wholly untrue in his day, that "every legislature in their treatment of the judiciary is a damned jacobin club."[footnote: "memoir of jeremiah mason," .] only the influence of the bar has carried through the successive increases which have been everywhere made. the first pension to a retired judge ever granted in the united states was one of $ voted in kentucky in . it was offered to one of the members of the court of appeals to induce him to resign, but the year after his resignation the statute was repealed on the ground that it was unconstitutional.[footnote: sumner, "life of andrew jackson," .] since , the united states have allowed their judges who have reached the age of seventy, after not less than ten years' service, to retire, at their option, receiving the full official salary during the remainder of their lives. rhode island gives hers the same privilege after twenty-five years' service, and massachusetts and maryland have somewhat similar provisions, except that the judges on retirement receive but part of what they formerly did. the connecticut legislature is in the habit of appointing her judges, both of the supreme and superior court, when retired at the age of seventy, state referees for life, with an allowance of $ , for salary and expenses, their duties being to try such questions of fact as the courts may refer to them and to report their conclusions. our state constitutions now generally provide that judges shall hold no other public office. some also provide that all votes for any of them for any other than a judicial office shall be void. * * * * * occasionally a judge, in order to eke out his official income, accepts a salaried position, calling for but little of his time, in a matter of private business employment. this, however, is rarely done and there are obvious objections to it when the employer is one likely to have business before the court. many of the judges of the higher courts, including several of the justices of the supreme court of the united states, are professors or lecturers in law schools. the best mode of appointing judges is that which secures the best men. such men are unlikely to accept a place on the bench of one of the higher courts, unless it carries with it some prospect of permanence. it does, if it comes to them by way of promotion after they have served acceptably for a length of time in an inferior court. but most judges must be taken from the bar and, save in very unusual cases, will be in large and active practice. this must be totally abandoned if they take one of the higher judicial positions; and if they take the lowest, must be made secondary to it. a lawyer's practice is more easily lost than gathered. if it is a solid one, it is of slow growth. for one who has turned from the bar to the bench to expect on retirement from office to resume his old practice would be to expect the impossible. he may have achieved a position by his judicial work which will enable him to take a better position at the bar; but in that case his clients will be mainly new ones. he is more likely, particularly if no longer young, to sink into a meagre office practice and feel the pinch of narrow means, always doubly sharp to one who by force of circumstances has a certain social standing to maintain. the leaders at the bar therefore seldom consent to go upon the bench unless they have property enough to ensure their comfortable support after they leave it, without returning to the labors of the bar. this is one of those evils which carry in some sort their own antidote. the lawyers, as a body, are always anxious for their own sake to have an able and independent bench. they do not wish to trust their causes, when they come before a court of last resort for final disposition, to men of inferior capacity and standing. they therefore can generally be relied on to urge on the nominating or appointing power the selection of competent men. their influence in this respect is little short of controlling. if competent men will not ordinarily go on the bench of an appellate court, unless by way of promotion, until they have accumulated a sufficient fortune to make them comfortable in old age, then as competent men will usually, in one way or another, be selected, and as few of these are men who from their youth have been occupying judicial positions, the judges will usually be possessed of some independent means. a property qualification almost is thus imposed by circumstances on those forming the american judiciary in its highest places. the same thing is true of our higher diplomatic positions. as goethe has said, there is a dignity in gold. it is a poor kind of dignity when unsupported by merit, but if to gold merit be joined, each lends to the other solidity and power. among the men of the first eminence at the bar whom the meagerness of the salary has kept off the bench may be mentioned jeremiah mason, who declined the position of chief justice of new hampshire on this account, and william wirt. wirt in was made one of the chancellors of virginia at the age of twenty-nine. the salary and fees amounted to about five hundred pounds a year. he married on the strength of it, but in a few months found that his income was insufficient to maintain his family, and resigned.[footnote: "memoirs of william wirt," i, , .] dignity and power, however, are strong attractions. theophilus parsons in left a practice worth $ , a year--the largest in new england in his day--to take the place of chief justice of massachusetts on a salary of $ , . after three years he sent in his resignation, saying that he found that this sum was insufficient for his support, even with the addition of the income from such property as he possessed. the legislature thereupon raised the salary to $ , , and he remained on the bench through a long life.[footnote: "memoir of chief justice parsons," , , .] in , richard w. greene of rhode island, who then had a practice of $ , a year, gave it up for the chief justiceship of the state, though the salary was then but $ , supplemented by some trifling fees. in a few years, however, he resigned the office on account of the inadequacy of the compensation.[footnote: payne, "reminiscences of the rhode island bar," .] the qualities of a judge are by no means the qualities of a politician. the faculty of looking at both sides of a question and the power of forming deliberate and well-considered judgments do not tell for much in a campaign speech. the politician's title to support is standing by his friends. the judge's duty may be to decide a cause against his friends. many a lawyer of eminence might accept a nomination from a president or governor involving no participation in a political election contest who would refuse one from a party convention. the general sentiment of thinking men in the united states is that judges should never be chosen by popular vote. it is, however, an unpopular sentiment. the people in general do not appreciate the difference between their fitness to select political rulers and to select judicial rulers--to choose out good men and to choose out good lawyers. and the people make and ought to make our constitutions. rufus choate once said that the question at bottom was, are you afraid to trust the people? if you answer yes, then they cry out that "he blasphemeth." if you answer no, they naturally reply, then let them elect their judges. jefferson was the first to suggest an elective judiciary, basing his opinion on a misconception of the usage in connecticut. there, he wrote, the judges had been chosen by the people every six months for nearly two centuries, yet with few changes on the bench, "so powerful is the curb of incessant responsibility."[footnote: works, vii, , , , ; letter of july , , regarding a new constitution for virginia.] in fact, the connecticut judges were chosen annually, and those not holding judicial powers as an incident of political ones were appointed by the legislature. the experiment of resorting to popular election was first fully tried in mississippi in , under the influence of governor henry t. foote, but in later life he expressed his regret at the course which he had taken, and the belief that it had weakened the character of the bench.[footnote: "casket of reminiscenses," .] the scheme of popular election may be pursued with reasonable success if the bar use all the influence at their command to secure both good nominations originally and the re-election of all who have served well.[footnote: it is not uncommon for local bar associations after the party nominations for the bench have been made to refer them to a committee, on the report of which those deemed the best are commended for popular approval. in two judicial districts in iowa, the lawyers nominate judges for the district in a convention of delegates from the bar, and then see to it that the nominations are ratified by the party conventions. simon fleischmann, "the influence of the bar in the selection of judges," report of th annual meeting of the new york state bar association ( ).] a conspicuous instance of its success under such conditions is shown by the repeated re-election of judge joseph e. gary of the criminal court of the city of chicago. originally elected in , when it was called the recorder's court, he has been re-elected for successive terms of six years without a break, and in , when he was years old and still in active service on the bench, received well-merited addresses of congratulation from the chicago law institute and the chicago bar association. judges of probate, whose functions are largely of a business character, and who are brought into close contact with the people at first hand, are frequently re-elected for a long period of years with little regard to their party affiliations.[footnote: in the probate district of hartford in connecticut there have been but two judges during the last forty years, though the elections have been annual or biennial.] in case of those having long terms of office, a re-election comes more easily and commonly. a man who has been ten or twenty years upon the bench has become set apart from the community. the people have ceased to think of him as one of themselves, so far as the active political and business life of the day is concerned. his position and his work, if it has been good, have given him a certain elevation of station. men have learned to trust him, and to feel that his presence on the court helps to make liberty and property more secure. if he receives his party nomination, he is apt to secure a majority of votes, whether the others on the ticket are or are not elected. the opposing party often nominates him also, and sometimes, if his own gives the nomination to another, nominates him itself, and with success. in new york it has been generally the case that a good judge of the court of appeals or supreme court is re-elected until he reaches the age limit set by the constitution. to accomplish this, however, it has been necessary for the bar to use constant efforts to bring the nominating conventions of both parties to the support of the same man or men, and personal ambition and party feeling have on a number of occasions set up an effectual bar. before a recent election of two judges in that state, in preparation for which a scheme had been suggested by which one of the outgoing judges of each party should be re-elected, a third candidate for the succession, himself a prominent member of the bar and an officer of the state, published a lengthy statement of his claims, which concluded thus: "i am a candidate for nomination to the office of associate judge of the court of appeals at the coming democratic state convention. i appeal to my fellow-citizens for their support. while i do not believe that support for judicial candidacy should be unduly importuned, i feel that the present circumstances justify me in making this announcement. i have always stood by my party in its dark days, when others voted the republican ticket in the interest of their business. i have assisted in endeavors to so shape its policies as to make success possible. now that this has been accomplished, i do not think that my fellow-democrats will thrust me aside to make way for those who neither affiliate with the party nor vote its ticket." as a general rule, in the country at large political considerations are decisive, both in cases of popular election and of executive nomination, but as to the latter exceptions are more frequent. one instance has occurred in which a president of the united states nominated to the supreme court a member of the party in opposition to the administration,[footnote: howell e. jackson, a democrat, was thus appointed by president harrison, a republican, in . president taft, a republican, has since appointed two democrats, justices lurton and lamar, and made a third chief justice.] and the same president, upon the creation of the circuit court of appeals, when there were a number of new judges to be appointed, gave several of the places to those not of his political faith. it is, however, to be expected that the presidents of the united states, as a general rule, will place upon the supreme court none whose political opinions are not similar to their own. it is a court wielding too great a political power to allow this ground of qualification to be lightly passed over. precisely because of this, the political antecedents of the justices of the supreme court are more apt to be discoverable in their opinions than is the case in state courts. professor william g. sumner, in referring to the change of character of the supreme court by reason of jackson's appointments to it, remarks with some truth that "the effect of political appointments to the bench is always traceable after two or three years in the reports, which come to read like a collection of old stump speeches."[footnote: "life of andrew jackson," .] in states where the judges are only appointed for a certain term of years, it is not unusual for the governor, if he has the power of nomination, to exercise it in favor of outgoing judges who are his political opponents. so, also, if there happen to be several original vacancies to fill, it is the traditional method in a few states to give one of the places to a member of the opposition party. if the election belongs to the legislature, a similar practice prevails in some of the older states. in connecticut but six instances of refusing a re-election to judges of the higher courts for mere party reasons have occurred for more than a hundred years.[footnote: judges baldwin, goddard, gould and trumbull were dropped in and as an incident of the political revolution which destroyed the federalist party in connecticut and brought about the adoption of a constitution, under which the judges were to hold for life, to replace the royal charter. judges seymour and waldo were dropped in during the civil war, because they were classed with the "peace democrats." their successors, however, were appointed from the "war democrats," though the legislature was republican.] in vermont, where elections to the supreme court were annual, judge redfield was placed on the supreme bench and then re-elected year after year for twenty-three successive years by legislatures controlled by the party politically opposed to him.[footnote: edward j. phelps, "orations and essays," .] in a few states it is not customary for his party to renominate a judge more than once. two terms are considered enough for one man, and when he has served them he should make room for some one else. many a judge has thus been taken from the bench at a time when, with the aid of experience, he was doing his best work. appointments to appellate courts are generally provided for by a scheme calculated to prevent any sudden and general changes of membership. not more than one or two receive an appointment in any one year, so that the terms of not more than one or two can expire at the same time. where judges hold for life or--as is frequently the case--if there is a constitutional provision that no judge shall hold office after reaching the age of seventy, the vacancies will, of course, occur and be filled at irregular intervals. all this, in connection with the natural tendency to reappoint judges who have earned the public confidence, secures to the court a certain continuity of existence and consistency of view. in every court of last resort in the older states there will be apt to be found some who have served ten or twenty years and were at first associated with those who had themselves then served as long. it is not easy to "pack" a court thus constituted. if, however, some question of supreme political importance is looming up, likely soon to become the subject of litigation, the nominating or appointing power is not likely to be insensible of the party advantages that may result from its decision in a particular way by the highest judicial authority, nor of the importance of the vote to be cast by each who may share in its administration. during the civil war congress passed a conscription law. the supreme court of pennsylvania pronounced it unconstitutional, and advised the issue of a temporary injunction to prevent its enforcement by the officials charged with that function. the term of the chief justice was about to expire. the decision had been made by three judges, of whom he was one, against two who dissented. the political party to which he belonged renominated him, but he was defeated at the polls. a motion was soon afterwards made to dissolve the injunction. his successor joined with the former minority in advising that the motion be granted, and on the ground that the act of congress was not unconstitutional. the two remaining members of the court adhered to their former opinion.[footnote: kneedler _v._ lane, penn. state reports, . see this case reviewed in pomeroy, "introduction to the constitutional law of the united states," sec. .] in some states the justices of the supreme court select one of their number annually to be chief justice for the year ensuing. in several, whenever there is a vacancy, the office falls, as of course, to the justice who has the shortest time to serve. this is a ready way to pass a title about and attach it to as many men as possible in quick succession. its ostensible defense is that there can be no unfair discrimination and favoritism in such an appointment, and that as the judge whose term has most nearly elapsed will naturally be the one who has served the longest, he will certainly have the advantages of experience. these considerations deserve little weight in view of the sacrifices that such a scheme entails. unfair discrimination is indeed prevented, but so is a just and proper discrimination. the plan of promoting the senior associate justice when a vacancy occurs is liable to similar objections, though in less degree. he is at least not unlikely to serve for a considerable time. to be a good chief justice requires special gifts. whoever holds that office should have not only learning and ability, but patience and courtesy in a high degree. he must be methodical in the transaction of business, if the docket of the court is a large one. he should have the art of presiding over its public sessions and disposing of the minor motions which may be made from the bar with dignity and tact. he should be a man who commonly carries his associates with him at its private consultations in support of any doctrine which he is firmly convinced to be the law applicable to the case in hand. he should have the faculty of conciliation. he should know when to yield as well as to insist, in order to secure the best results for his court and for his state. he should be able to write a clear and forcible opinion. the best lawyer in the jurisdiction who may be supposed to have these qualities and will accept the position ought to be at the head of its judiciary. many have been tempted from the bar by an offer of that place who would have refused the appointment of associate justice. john marshall was one of these. chief justice parsons of massachusetts was another. in the supreme court of the united states no chief justice has ever been appointed from among the associate justices, although a nomination was offered to and declined by mr. justice cushing in . in the state courts the general practice is to the contrary, and it is common to fill a vacancy by appointing one of the associate justices. popular election and life tenure cannot well go together. the chance of an irremediable mistake is too great. judicial nominations are often the mere incident of the prevalence in a party convention of one faction of the delegates, whose main object is to control the nominations for other positions. american experience seems to indicate life tenure and executive nomination, with some suitable provision for securing retirement at a certain age, as likely to secure the best judges of the higher courts. this has worked well for the united states, and no state courts have stood higher in the general opinion of the bar than those thus organized. for the lower courts there is less necessity and less chance for getting men of the first rank in attainments and character. shorter terms of office can therefore reasonably be prescribed, and the objections to popular election are correspondingly less. even as to them, however, the plan of executive nomination is safer than that of party nomination. a man acts carefully when he is the only one whom the public can hold responsible for what is done. it is customary to provide that vacancies in judicial offices can be temporarily filled by the executive until there is an opportunity for a new appointment or election by the proper authority. the place of a judge who is absent or disqualified is in some states, by authority of a statute or agreement of the parties, occasionally taken by a member of the bar called in to try a particular cause or hold a particular term of court.[footnote: see alabama code of , sec. ; reporter's note to kellogg _v._ brown, connecticut reports, .] so the english assize judges are constituted by special commissions for each circuit, which include also the barristers on the circuit who are sergeants at law, king's counsel, or holders of patents of precedence. it is hard to dislodge a judge for misconduct or inefficiency. our constitutions give remedies by impeachment or by removal by the governor on address of the legislature, but lengthy proceedings are generally necessary to obtain the benefit of them, and the decision is often in favor of the judge. party feeling is apt to have its influence in such matters. whether it does or does not, it is an unpleasant task to assume the initiative. those who best know the facts are the lawyers, and if some of them are the ones to move, it is at the risk, should they fail, of having afterwards to conduct causes in a court presided over by one who is not likely to regard them with a friendly eye. the number of judicial impeachments in the history of the country has been comparatively small, and few of these have resulted in convictions.[footnote: see chap. iii.] of the cases which were successful, the most noteworthy is that of justice george g. barnard of the supreme court of new york, who was convicted of having abused his right to issue _ex parte_ orders and of other measures of improper favoritism. the bar association of the city of new york brought the charges, and were influential in carrying the whole proceeding through to a favorable result. in another instance, occurring in in massachusetts, the right of impeachment was stretched to its limit by removing a judge of probate, edward g. loring, the only real ground being that as a united states commissioner he had ordered the return of a fugitive slave under the laws of the united states--laws the constitutionality of which the highest court of the state had recently declared to be fully settled.[footnote: sims' case, cushing's reports, .] judges of inferior courts are sometimes removable by the higher ones for cause, on complaint of a public prosecutor. in such case, the proceeding being strictly a judicial one, there is more assurance of success if the charges are well founded. here also, however, it will be known from whom they come, and the hearings are likely to be so protracted and expensive to the state that only a flagrant case will usually be taken up. the hearings on such a complaint, brought in new york in , extended over thirty-six days; the stenographic minutes of the testimony covered over , pages; there were over four hundred exhibits introduced; and the items of cost presented for taxation amounted to over $ , . removals by the governor on the address of the legislature have been more frequent, and occasionally have been dictated largely by party managers who desired to make places for those of their own political faith.[footnote: schouler, "constitutional studies," , note.] in one instance it was attempted, but unsuccessfully, in kentucky as a punishment for giving a judicial opinion that a stay-law recently passed by the legislature was unconstitutional. a two-thirds vote of each house was required, and as in the lower house, though it voted for an address by a large majority, this could not be obtained, the proceeding was allowed to drop.[footnote: niles' register, xxii, . see _ante_ p. .] in all there have been in the whole country since not over thirty removals, whether on impeachment and conviction or on address of the two houses, of judges of a higher grade than justices of the peace.[footnote: see foster, "commentaries on the constitution of the united states," appendix, .] wholesale removals have also, in rare instances, been effected for similar purposes by abolishing courts, the judges of which held during good behavior.[footnote: see chap. vii.] maryland was the first to do this, abolishing a court and re-establishing it at the same session, almost in the words of the former law. congress followed in by repealing the statute of the year before by which a new scheme of circuit courts was arranged and under which sixteen federalists had been appointed to the bench. massachusetts did the same thing in with respect to her courts of common pleas.[footnote: see chap. viii.] the occurrence of vacancies has sometimes been prevented in a similar manner when the nominating or appointing authority was politically opposed to the legislature. the existence of a supreme court is required by all our constitutions, but the number of the judges is frequently left to be fixed from time to time by statute. the federalists, when they were about to go out of power, provided that the supreme court of the united states should on the next vacancy be reduced from six to five, thus seeking to prevent jefferson from filling such vacancy. by the number had been raised to ten, but three years later, when a democratic president was contending with a republican congress, it was enacted that as vacancies might occur it should be reduced to seven. in , when a republican president had come in, the number was restored to nine, and the new justice for whom a place was thus made shortly joined in reversing a decision made by the court not long before and quite unsatisfactory to the majority in congress on an important constitutional point. similar legislation, for like reasons, has been had in many of the states. * * * * * chapter xxiii the character of the bar and its relations to the bench every lawyer is an officer of the court as fully as is the judge or the clerk. he has, indeed, a longer term of office than is generally accorded to them, for he holds his position for life, or during good behavior. courts could not exist under the american system without lawyers to stand between litigants and the judge or jury. it is a system that requires written pleadings, originally very artificial in form and still somewhat so. it imposes many limitations on the introduction of evidence, which often seem to shut out what ought to be admitted, and rest on reasons not apparent to any who have not been specially instructed in legal history. it divides the decision of a cause between judge and jury in a manner only to be understood after a long and close study. it gives a defeated party a right of review dependent on a number of technical rules, and to be availed of only by those who are skilled in the preparation of law papers of a peculiar kind. a class of men has therefore been set apart to keep the people from direct approach to the bench, except when they may desire to argue their own cases, which rarely occurs. in england there are two such barriers, the class of barristers and the class of attorneys. the attorneys keep the people from access to the barristers; the barristers keep the attorneys from access to the court. the attorney prepares the case, represents his client in the proceedings preliminary to the trial, and assists the barrister whom he may retain at the trial, but cannot examine a witness or argue the cause. in america we do not thus divide lawyers into two classes. there are many of them who never in fact address the court, but it is not because they have not a legal right to do so. every member of the bar of any court has all the legal rights of any other member of it. the qualifications for admission to the bar are generally left to be regulated by the courts. in a few states they are fixed by constitutional or statutory provisions. in all, when the constitutions do not regulate it, the legislature can. it has indeed been asserted that the admission of attorneys is in its nature a matter for the courts only.[footnote: see _american law school review_, i, .] english history does not support this contention.[footnote: pollock & maitland, "history of english law," i, - ; ii, . o'brien's petition, connecticut reports, ; atlantic reporter, .] the inns of court, which are mere voluntary associations of lawyers, have from time immemorial exercised the function of calling to the bar, so far as barristers are concerned, and the admission of attorneys has always been regulated by acts of parliament.[footnote: see in the matter of cooper, n. y. reports, , .] by our american legislatures the same course has been generally pursued. the duty of ascertaining whether candidates for admission have the prescribed qualifications is occasionally performed by the judges in person; more often by a committee of the bar appointed by the court for that purpose; in some states by a standing board of state examiners, receiving compensation for their services.[footnote: this comes from fees paid by those examined.] the latter method was introduced in the latter part of the nineteenth century and is steadily gaining in favor. a committee of a local bar is unavoidably subject to some local influences or prepossessions. a state board can act with greater independence and maintain with more ease a high standard of admission. in early colonial days the legislature sometimes set a limit to the number of attorneys who could be allowed to practice before the courts. in some colonies the number at the bar of a particular court was fixed; in others the number of lawyers in each county.[footnote: acts and laws of the colony of conn., may session, , chap. liv. hunt, "life of edward livingston," .] no such limitation now exists in any state, and the matter is left to be regulated by the law of supply and demand. this by the census of required over , . the freer a country is, and the quicker its step in the march of civilization, the more lawyers it will naturally have. the growth and importance of the bar are stunted wherever it is overshadowed by an hereditary aristocracy. a land of absolutism and stagnation has no use for lawyers. the institutions of china would not be safe if she had a bar. lawyers are a conservative force in a free country; an upheaving force under a despotic government. in russia one is found enough to serve over thirty thousand; in the united states there is about one to every six hundred and sixty of the population,[footnote: in , there was one to every ; in , one to every .] and in england one to every eleven hundred. the colonial lawyers of the seventeenth and eighteenth centuries occupied an inferior place in the community as compared with that now held by the legal profession. there was comparatively little opportunity to rise to eminence. the positions on the bench, as has been seen, were largely held by those not trained as lawyers. before such judges it was a waste of words to make elaborate arguments on points of law. among the first settlers were a few who had been educated for the english bar. one of them, in massachusetts, rev. nathaniel ward, drafted the _magna charta_ or "body of liberties" of that colony, adopted in . his opinion of the need of lawyers may be inferred from the fact that it provided expressly that those who pleaded causes for others should receive no compensation for it. virginia adopted the same policy from to . later, lawyers practicing in massachusetts were excluded from the general court. as that had large judicial powers, it was thought fitting to give no opportunity to any to sit there to-day to judge and to appear to-morrow before an inferior court to argue as an advocate.[footnote: hutchinson, "history of massachusetts," iii, .] as time went on, an american was occasionally sent to london to read law. he was apt to be a young man of fortune, who entered the temple or the inns of court more as a means of gaining pleasant acquaintances than for any serious purpose of education. most of them came from pennsylvania and the southern colonies. two presidents of the continental congress, randolph and mckean, four signers of the declaration of independence, heyward, lynch, middleton, edward rutledge, and john rutledge, one of the first associate justices of the supreme court of the united states, were of the number. not infrequently there were legal proceedings in london which concerned colonial interests. their charters were attacked or colony laws and judgments put in question before the lords of trade and plantations. in such proceedings, if counsel were needed, english barristers were generally employed. an american lawyer now and then went over to consult with them and perhaps to join in the argument, but the leading part was theirs. it was not until the quickening and deepening of american life which preceded and portended the revolution that anything like a colonial bar, led by a man of learning and position, really came into existence.[footnote: "two centuries' growth of american law," .] from the middle of the eighteenth century to its close there was a steady and rapid progress in this direction. legal education was taken seriously. in the case of many it began with the fundamental notions of justice and right. the greek and latin classics on those heads were read.[footnote: "life of peter van schaick," .] the private law of the romans was studied to a greater extent relatively than it is now. the first chair of law in the united states was established at william and mary college in , and there, under chancellor wythe, john marshall was a student. president stiles of yale, in his "literary diary," so full of that kind of historical incident which after a few years have passed it is most difficult to trace, enumerates the books read by his son, ezra stiles, jr., between and , in preparation for the connecticut bar, under the advice and in the offices of judge parker of portsmouth and charles chauncey of new haven. they comprehended, besides much in english and scotch law, burlamaqui's _principes de droit naturel_, montesquieu, _de l'esprit des lois_, the institutes of justinian, certain titles of the pandects, and puffendorf _de officio hominis et civis juxta legem naturalem_. james kent at about the same time was reading grotius and puffendorf in the office of the attorney-general of new york, and edward livingston, under chancellor lansing, explored all parts of the _corpus juris civilis_.[footnote: hunt, "life of edward livingston," .] john quincy adams a few years later, under the instruction of chief justice parsons of massachusetts, took up vattel and the institutes of justinian.[footnote: report of the american bar association for , , note.] the latter, as well as van muyden's _compendiosa tractatio_ of them, his father had studied in his preparation for the bar thirty years before.[footnote: "life and works of john adams," i, .] the lectures of chancellor wythe at william and mary, like those of mr. justice wilson in at the university of pennsylvania and of chancellor kent in at columbia, were designed, as were blackstone's at oxford, to give such information as to the nature and principles of law as might be of service to any one desirous of acquiring a liberal education. such instruction could not be considered as anything approaching a proper preparation for entering on the practice of the legal profession. the united states preceded england in the endeavor to provide such a preparation by a systematic course of study pursued under competent teachers at a seat of learning established for that sole purpose. the need of something of the kind was felt to be pressing after the independence of the united states had been fully established. an unusual number of young men of promise were turning from the army to the bar.[footnote: "memoirs of james kent," . in , the number of attorneys in the state of new york had risen to . morse's "american geography," ed. , . thirty years later it was , . miles' "register," xiv, .] those already members of it had educated themselves as best they could, with slight assistance from the lawyers in whose offices they had studied. they in turn were indisposed to do more for such as might desire to read law in their offices. few of them were competent to do much.[footnote: see "life of peter van schaick," , .] there was a demand for a professed school of law, and in the first in any english-speaking country was opened at litchfield, connecticut. there are now of them,[footnote: report of the american bar association for , p. .] with a total attendance of over fourteen thousand students. the course of study in a few may be completed in one year; in most two are required; in the rest three, with perhaps an offer of a fourth for advanced instruction leading to the degree of master or doctor of laws. the ordinary degree is that of bachelor of laws (ll.b.). the american bar association has had an important influence from its first organization, in , in prolonging the period and raising the standards of legal education. in affiliation with it there is an "association of american law schools," representing a large majority of the teachers and students engaged in law school work. this admits no institution into its ranks at which students are received without a preliminary education at least equal to that given by the ordinary high school. a few of the schools so associated receive no student, save in exceptional cases, unless he already holds a degree in arts, science, philosophy, or letters from some collegiate institution. in several of the states having boards of state examiners no one is admitted to the final examination before them who did not prior to the beginning of his education receive one of the degrees above indicated or else pass a special examination before the same board on certain prescribed studies, corresponding substantially with those ordinarily pursued in a high school. some proof is everywhere required that an applicant for admission to the bar possesses a good moral character. it is necessarily largely a matter of form. certificates are sometimes required from those familiar with his previous life, and sometimes the mere motion for his admission by a member of the bar representing the examining committee is accepted as sufficiently implying that no unworthy person would be thus presented. in a few states a distinction is made between attorneys with reference to the courts in which they may practice. when first admitted it is to the bar of the trial courts. later, after a few years of experience, they can be admitted on further examination to practice also in the highest courts of the state. this distinction reaches back, in new jersey, to the colonial era. attorneys were there a different class from "counsellors," and, following the english practice, the style of "sergeant" was also formerly bestowed on leaders at the bar. the last lawyer bearing the title survived until nearly the middle of the nineteenth century. in this state the governor has always issued the licenses or commissions to attorneys and solicitors in chancery, but for more than a hundred and fifty years only on the recommendation of the supreme court.[footnote: _in re_ branch, n. j. law reports; atlantic reporter, .] the admission of attorneys in the several courts of the united states is determined by rules which they respectively establish from time to time. these rules make the only qualification membership in regular standing for a certain period of time in the bar of a state and good moral character. there is no doubt that the united states have been in advance of england both in providing means of legal education and in requiring their use. the length of the course of study now established at our older law schools--three years--seems all that can reasonably be exacted, if a proper foundation of general discipline and knowledge has been previously laid. the first provision for one or more years of graduate study for those who may desire it was made at yale university in , and a similar opportunity has since been offered at several others; but it has been availed of by few, and of these a considerable part had in view the teaching of law as their ultimate vocation rather than its practice. unquestionably the american bar is now, as a whole, a far better trained class of men than it was twenty or thirty years ago, and the efficiency of the courts has been correspondingly increased. * * * * * members of the bar are always subject to punishment by the court for official misconduct. this may be by censure, temporary suspension from practice, or disbarment. if guilty of contempt of court, they can also be sentenced to fine or imprisonment.[footnote: see chap. xx.] as suspension or disbarment means a loss, temporary or permanent, of a livelihood, it is only ordered in aggravated cases and after an opportunity for a formal hearing. disbarment cannot be decreed by the legislative department. that would be virtually an act of attainder. it must come from a judicial sentence.[footnote: _ex parte_ garland, wallace's reports, , .] in some states the principal trial court, which is the one by order of which attorneys generally are admitted to the bar, appoints a standing committee on grievances. in others such committees are created by bar associations, of which almost every state has one for the whole state, while several have also one or more local associations. it is the duty of such a committee to inquire into any instances of professional misconduct that may be brought to their notice and either institute proceedings for a hearing before themselves or bring the matter to the attention of the court, so that they may be instituted there by its order and conducted by the public prosecutor. in the larger states, several inquiries of this nature are ordinarily set on foot every year, which result in suspension or disbarment. in the smaller states they are rare, both because they have smaller bars and because the smaller a bar is the more difficult is it for any one of its number to hide any misdoing from the rest. the bar associations, which first began to start up soon after the civil war, have been of great service in upholding the honor of the profession. their constitutions generally name this particularly as among their professed objects. one state[footnote: alabama] has recently under such influences, passed a statute making it a misdemeanor for an attorney to send out "runners" to solicit practice, and requiring the public prosecuting officer to institute proceedings for any violation of the law, upon the complaint of the council of the state bar association. the steadily and rapidly increasing proportion of lawyers to the population in the united states necessarily tends to a lowering of their average professional income, and this tendency is not fully overcome by the increase of the wealth and business of the country. the principle of the concentration of industry also works against the great majority of them. searching titles to real estate, for instance, was until the last half of the nineteenth century part of the business of every lawyer. it is now in the larger cities monopolized by certain firms or corporations, who own copies or abstracts of the public records, laboriously prepared, which give them special facilities for doing the work rapidly and well. so collecting uncontested debts was formerly the staple of many a lawyer's practice. the general abolition of imprisonment for debt about the middle of the nineteenth century rendered the process much more difficult and the fees less, and of late years great collection agencies, generally corporations, have sprung up, with an extensive system of correspondents among members of the bar, by whom most suits of such a nature are now brought under an agreement to divide their fees with the central bureau. until the last half of the nineteenth century there were probably no lawyers in this country whose average net income from year to year was equal to that of the leaders of the english bar. in there was but one lawyer in new england with an annual professional income of $ , : until about there was none in connecticut, and probably not over a hundred in the entire country.[footnote: parton, "life of aaron burr." ; great american lawyers, iii, .] in , william wirt was informed by justice thompson of the supreme court of the united states that "six, eight, and ten thousand dollars is considered great practice in new york and ten thousand dollars the _maximum_."[footnote: kennedy, "memoirs of william wirt," ii, .] thirty years later the same was true, except that twenty thousand dollars had then become the highest annual average, and that but of a very few.[footnote: parton, "life of aaron burr," .] daniel webster earned from $ , to $ , when at the height of his career.[footnote: harvey, "reminiscences of daniel webster," .] the civil war was the occasion of many important business enterprises, and gave rise to much litigation. it brought also a great increase of wealth to the north and west, and new and greater investments of northern capital in the south. from that time the business of the leading lawyers in every state became more remunerative. incomes of $ , and $ , were occasionally earned in the smaller states, and of four or five times as much in the larger ones. the american lawyer of the eighteenth century was apt to have his office in his house. during the nineteenth century this became less and less common and is now comparatively rare. in cities certain streets, generally near the court-house, are crowded with lawyers' offices. these are generally over business stores, but in some places residential streets have been converted to this use, and what was formerly a handsome mansion will have the chambers of counsel on every floor. in many of the counties in virginia chambers for the accommodation of the lawyers are built in the rear of the court-house on public ground. a small rent is paid by the occupants to the county. when court is about to open each day the crier calls out from one of the court-house windows the name of each lawyer to notify him of the fact. the relations of the bar to the bench assume a peculiar character under the conditions of american society. the judges stand closer to the lawyers in this country than in any other. all of them, unlike those of continental europe, have been themselves practicing lawyers. the majority, unlike those of england, are young men, sitting in minor courts, who have generally left the bar for but a brief period, expecting, if not desiring, soon to return to it. not a few hold court but one or two days in the week or one or two hours in the day, and for the rest of the time are actively engaged in professional practice before other courts. those of the latter description always occupy a somewhat unfortunate position. the state does not expect them to devote themselves entirely to its service. it does not provide for their compensation on that basis. it expects them to continue the general practice of their profession, except so far as their judicial duties may necessarily prevent. they certainly cannot practice in their own court with propriety. statutes to prevent it are not uncommon. for the same man to charge the jury one day as judge and address them the next in argument as counsel must tend to confuse their notions as to the weight they should give to what he says, and to lend it often a weight which it may not deserve. so, too, his relations to the clerk and other court officers are such officially as to give him opportunities for influencing them when he is engaged at the bar, not shared by his brother lawyers.[footnote: french _v._ waterbury, conn. reports, ; atlantic reporter, .] there are, however, in every state quite a number of judges of higher courts who receive a salary deemed sufficient for their support and who are expected to devote their entire time to judicial duties. as respects those of the united states courts there is a statute (u. s. revised statutes, sec. ) making it criminal for them to practice law. similar legislation exists in some of the states with regard to the judges of their higher courts, but without it a sense of propriety dictates their abstaining from it, and it has even been held that the right of any judge of a superior trial court of general jurisdiction over important causes to act as an attorney or counsellor, except in his own cause, is suspended by implication of law so long as he retains his seat on the bench.[footnote: perry _v._ bush, florida reports; southern reporter, .] the demeanor of the judges to the bar is inevitably affected to some extent by their tenure of office. if they hold their places for life, they naturally are less sedulous to avoid giving offense and less ready to tolerate a poor or tedious argument. a greater distance is maintained for this cause between bench and bar in the federal courts than is usual in most of the state courts. no judge, however, desires to have the reputation of being overbearing, rough or impatient, and few are. chief justice parsons of massachusetts at one time fell into an inveterate habit on the circuit of checking counsel in argument rather curtly when they seemed to him to wander from the vital point. the leaders of the bar of boston finally determined to stop it, and arranged at the next term at which he was to preside that whoever of them was thus treated should leave the court room. the first to address the court was checked in the usual manner, and observing that he regretted his argument seemed not worthy of the court's attention, took his papers and went out. the next met the same kind of interruption in the same way, and so on until the court room was cleared. the chief justice afterwards sought an explanation, received it in good part, and was forever cured of what had been a serious impediment to his usefulness on the bench.[footnote: see george f. hoar, autobiography, ii, .] occasionally a trial judge will have a similar lesson taught him by finding no business to be disposed of when he opens court, and learning later that the bar agreed to the continuance of all pending cases, because they did not care to trust him with them, or were disinclined to submit to his manner of conducting a hearing. judges are universally desirous of securing the good opinion of the bar as respects their knowledge of law and powers of discrimination and analysis. the bar is their little world. it is a critical world, for in every case that is tried there will be one lawyer who is dissatisfied with the result, and likely to think the judge wrong rather than himself, if every proposition of law which he has asserted has not been conceded. it is much more common for american judges to be too tolerant of a waste of time by counsel than to be too impatient at it.[footnote: see a striking instance of this tendency given in cleveland, painesville & eastern r. r. co. _v._ pritschau, ohio state reports, ; eastern reporter, .] they dislike even to seem harsh. most of them also hold office only for a term of years and do not forget that undue severity may jeopardize their re-election. this is one reason for the fact that at all points the bar are subject to fewer restrictions upon their conduct in the trial of causes in american courts than in those of most other countries. another, and a more fundamental one, is that the judges and lawyers stand more nearly on the same level both in public regard and official position. the lawyer holds a more permanent office in the court than the judge. he is quite likely to be his superior in learning and ability. he belongs to a class that is influential in the community, and whose members usually share quite actively in the direction of party politics. the judge in most instances holds but a brief authority. he does not wish to parade it in such a manner as might seem offensive. he is in danger of seeming to parade it if he goes beyond what is necessary in regulating the conduct of the lawyers who may appear before him. the judge who keeps a rigid watch on the examination of witnesses to exclude all improper testimony, whether objection be made to it or not, declines to hear argument on matters that may appear to him too clear to justify it, and is impatient when argument on doubtful points is continued longer than he thinks worth while, may be respected, but he will never be popular. trials for these reasons are longer in the united states than in england. fewer summary rulings are made. more questionable evidence is admitted. more time is allowed to counsel in the argument of the cause, and more freedom in arguing points that may seem immaterial to the court. the broad liberty of appeal generally allowed is another reason for hesitation on the part of trial judges to interfere more than seems absolutely necessary with the management of a cause by counsel. it is not merely the legal right of appeal but the practice under it which is a peculiar feature of our judicial system. a foreign lawyer often hesitates to cross swords with the judge. he distrusts his own judgment if it differs from that of the court. he defers to the opinion of the bench, not only as stating the law of the case, but as probably stating the law of the land. he therefore seldom appeals on minor points of procedure, even if he could. in the united states probably one case in ten of all that go to trial is carried up for review on points of law; many of them mere matters of practice not affecting the merits of the cause. the american lawyer can also safely speak with freedom of the conduct of the government or of high officials should it come in question. those in any court, high or low, who hope for a reappointment know that the best way to obtain it is to secure the good will of the bar. the reputation of a judge depends on the opinion which the lawyers have of him. the general public may be deceived as to his character, ability and attainments; the bar cannot be. in the public sessions of court there are few judges who are not impressed with the necessity of maintaining the dignity of their position as representing the power of the state. the lawyers recognize this feeling as just. it is common for them to rise as a body when the judge enters the bench. they find no difficulty in using the conventional style of address of "may it please the court," or "may it please your honor." when a ruling is made in the course of a trial the lawyer, whose client is adversely affected by it, accepts it without further discussion, simply reserving his exception, if he have one, for purposes of review in a higher court. if, in addressing the jury, counsel exceed the bounds of professional license in commenting on testimony or alluding to the character of the parties, the court will check them without hesitation. less outward respect was shown toward the courts by the bar in former times than now, and it often received less courtesy of treatment from the bench. an incident occurring in massachusetts about the beginning of the nineteenth century may serve as an illustration. robert treat paine, a signer of the declaration of independence, resigned his seat on the bench of the supreme judicial court in , at the age of seventy, largely on account of deafness. naturally somewhat imperious in temperament, his bearing toward the bar had seemed harsher from this infirmity. fisher ames used to refer to him as _ursa major_, and once told a friend that he should not go into court again, when judge paine held it, without a club in one hand and a speaking trumpet in the other. theophilus parsons, not long afterwards made chief justice of the state, was arguing before him one day when the judge, under the misconception into which a deaf old person so easily falls, that the younger generation all speak hurriedly and indistinctly, cried out, "mr. parsons, i tell you once for all, take that glove off your tongue." "certainly, sir," was the quick retort, "and may i beg your honor to take the wool out of your ears?"[footnote: "memoir of theophilus parsons," .] some twenty years later roger minott sherman, the leader of the connecticut bar, in trying a cause before an empty-headed judge who had been put on the bench for no other apparent reason than that his father was a man of distinction, quoted several english authorities and was about to read from another when the judge remarked that he need not take the trouble to read anything more of that sort to him. "then," said mr. sherman, "with your honor's permission i will read from it to the jury, and let me say that it is an opinion of lord ellenborough, a chief justice of england who rose to the bench by his own merits, and shone by no reflected light." one of the anecdotes of the boston bar is that while samuel dexter, one of the great lawyers of his day, was arguing a cause in the circuit court of the united states before justice story, soon after his accession to the bench, the court suddenly interposed, as a certain principle was asserted, with "that proposition is not law, sir," to which mr. dexter retorted, "it is the law, if your honor please, and will finally be declared to be the law by this court," as indeed it was later by justice story himself.[footnote: payne, "reminiscences of the rhode island bar," .] such a passage at arms between court and counsel as took place in either of these instances could now hardly occur. out of court there is no longer this distance between judge and lawyer. while they will not talk over an unfinished case, one that is finally disposed of is often the subject of free comment by each. they are now entirely upon the same level in the community. officialism is put off when the court room is closed. socially they meet in the same circles and on the same footing. it is considered not improper for a judge to accept the hospitality of a lawyer concerned in a case before him, and even a case on trial. the american rule in this respect is much less strict than the english.[footnote: see "memoir of chief justice parsons," - .] * * * * * chapter xxiv the law's delays the right to be heard before judgment, the right to have judgment rendered only on due process of law, and the right in most cases to a jury trial, necessarily make the course of justice slower in this country than it need be in one where there are no such guaranties in favor of those against whom the aid of a court is invoked. the plaintiff, too, has corresponding rights. it was found not so easy by frederick the great to enforce his famous decree that every lawsuit in his dominions must be finished in a year. in a freer land no such result is possible. the power of the judge to expedite trials is also much less in the united states than in most countries. they must be had mainly on oral testimony. the testimony must be so given that thirteen different men may each understand it. what the witnesses may be allowed to tell, and what they cannot be, depends on the application of numerous and artificial rules of evidence. if there is a question as to whether this rule or that applies, the judges sometimes invite and generally allow a discussion by counsel. appeals are liberally conceded. if exceptions to any ruling of the court are to be made the basis of proceedings in error, they must be carefully noted at the time, and afterwards made the subject of a lengthy set of papers. many trial judges are young men of little experience either on the bench or at the bar. they are learning the law by administering it. such men cannot decide controverted points in a moment, and shut off all unnecessary discussion in the manner that might be expected and tolerated from judges of the first rank. it is hardly probable that they will always come to the right decision at last. hence it is that so great a liberty of appeal is granted in every american state. appeal means delay.[footnote: see chap. xix.] a man is fortunate whose appeal is heard within three months and decided within six. oftener he must expect to wait a year or two. during a long course of years an appeal to the supreme court of the united states could not be reached for argument in regular order in less than three years after it was taken. in nebraska, for some time prior to the supreme court was so overwhelmed with business that it could not hear a cause until five years after it was docketed. in a brakeman was injured on a new york railroad. he brought suit against the company, and in recovered $ , damages. the judgment in was reversed on appeal. on a new trial he got a verdict for $ , . this was appealed to two courts successively. the first affirmed and the second reversed the judgment. in , there was a third trial, at which the company won. two appeals by the brakeman followed. on the first the intermediate appellate court, in , decided against him. on the second, in , the court of last resort decided for him. for the fourth time the case came on in the trial court, and a verdict for $ , was recovered. the company appealed and with success. a fifth trial gave him a verdict for $ , . this, too, was set aside on appeal. a sixth trial followed with exactly the same results. in , the seventh and final trial took place. the verdict this time was for $ , . the company appealed again, but was defeated.[footnote: case and comment, x, .] a lawsuit that embraces seven appeals and lasts for twenty years is, of course, a rarity, but the system of administrative justice under which such things are possible is faulty somewhere. the right of trial by jury is one cause of such delays. the broad right of appeal is another. the want of skill and experience on the part of trial judges and trial lawyers may be a third. the twenty-three english judges of the high court of justice (with the aid of masters in chancery and referees) actually try and determine about fifty-six hundred cases a year.[footnote: this was the average number for each of the years and .] each judge, therefore, on the average, dispatches over two hundred and forty. no american judges under our american system of practice could do as much and do it well. we tolerate a succession of motions and objections and arguments from the bar which english courts would not. we often take more time in impanelling a jury than they would in trying the case. the american bar, unlike the english, is not so constituted that a certain number of its members are professedly devoted in a special way to the trial of cases. the english barrister in active practice may almost be said to do nothing else. his standing and his income depend on his ability to try case after case in rapid succession. others are responsible for their slow and careful preparation. he is responsible for their quick and effective dispatch when the preparation is ended. he becomes necessarily familiar with the _technique_ of a trial at every point. in examining a witness, he strikes directly at what is material, and would be ashamed to appear ignorant of what that is. in argument he stops when he is through. the ordinary american lawyer who tries a case to-day, draws papers constituting a partnership or a corporation the next, and prepares an opinion on the construction of a will the day after, has not that concentration of knowledge which comes from concentration of occupation. the art of making a clear and definite statement of the points in controversy on paper is also one not sufficiently cultivated by the american bar. without it the system of "code pleading," which has in most states supplanted the rigid and often meaningless forms of the common law, leads to confusion and obscurity. the claims of each party ought to be, but seldom are, so presented that matters of law are, so far as possible, kept distinct from matters of fact, and what he means to prove is set forth, but not the evidence by which he hopes to establish it. this looseness of pleading leads to endless motions to expunge this and correct that, and time of the court is taken up by the preliminaries of trials which, if the lawyers used more care or had more skill, would be devoted to the trials themselves. still worse is it when such motions are postponed until the case comes on for final hearing, and witnesses and juries are compelled to wait during tedious arguments over questions of mere form. in our great centers of population business under these circumstances almost necessarily accumulates too fast for the courts to handle it. in bringing on criminal trials there is little delay, unless at the request of the accused, and for what seems good reason. our constitutions generally provide that whoever is to be tried on a criminal charge shall be tried promptly, and the practice of the courts conforms to this rule. the broad right of appeal, however, for errors of law on the part of the court may serve to postpone the execution of a sentence, and too many new trials are granted by the courts for steps in procedure in matters of a purely technical character. delays from this cause are, however, comparatively infrequent. most convicts are too poor to take advantage of it. most also know that their sentence is just, and are anxious only to have it executed and through with as soon as possible. in hardly one case in a hundred is an appeal taken or, if taken, pursued to the end.[footnote: see chap. xvii.] in our largest cities the disposition of criminal business occupies the time of several judges, and the prosecuting officer has a staff of professional assistants. in cases of such importance as to call for his personal management a postponement is occasionally inevitable. in chicago, in december, , over a thousand cases were awaiting trial in the criminal court. it tends to expedition in the trial of any cause if it is heard before a judge especially familiar with the class of questions which it involves. criminal courts, particularly in cities, are largely held by judges whose work is either wholly or mainly confined to them. this helps greatly to prevent delays in such tribunals. for a similar cause admiralty business is dispatched with great rapidity by the district judges at our principal ports, and patent causes by the circuit courts. in the criminal courts of new york city in , there were about , prosecutions on which indictments were found, and the defendant committed for want of bail. in most of these cases there was a plea of guilty, but counting them with the others, the average time as to all which elapsed between the original arrest and the final judgment was only eight days. during the same time those who gave bail were generally tried within three months from their arrest.[footnote: nathan a. smyth in the harvard law review for march, .] an insufficiency of judges was formerly one great cause of delay, but the modern tendency has been to have too many, rather than too few. in the court of chancery in virginia (which was held by a single chancellor, then a man seventy-six years old) there were in , , causes pending at one term. in the city of new york a jury trial in civil causes cannot ordinarily be reached until two years after they are brought. in its principal trial court between four and five thousand cases are annually disposed of, and in , there were nearly ten thousand on its docket. when the criminal courts in the borough of manhattan--the greatest division of the city--were opened in october of that year, there were nearly five hundred different prosecutions to be disposed of, and a hundred and sixty-seven prisoners awaiting trial who had been unable to procure bail. in the county containing the city of chicago (and which contains little else), there were in twenty thousand civil cases on the dockets of the courts. this mass of business it would require more than two years and a half to dispose of with the number of judges then provided, were no new suits instituted to divide their attention. a very large part of the cases tried to the jury are claims for damages for accidental injuries received by employees in the course of their service. in the county in missouri including kansas city there were, in december, , over fifty-one hundred civil causes on the dockets of the various courts. the population of the county was less than two hundred thousand. about three-fourths of the cases were against corporations for injuries received by their employees. the defendant in such an action is generally in no hurry to bring it to trial. the plaintiff often is not. he may have a weak case, brought in the hope of forcing a settlement. he has probably no money to pay his lawyer for trying it, and finds it hard to get together what is necessary to summon his witnesses and provide expert testimony as to the nature of his injuries. whenever it is tried, however, he is sure to want a jury, for if the case is a good one a jury is apt to give larger damages than a judge, and if a bad one a jury is less likely to appreciate its weakness.[footnote: mccloskey _v._ bell's gap r. r. co., pennsylvania state reports, ; atlantic reporter, .] a jury trial is much slower than a trial before a judge, although the decision is apt to come more quickly. it also facilitates appeals by necessarily presenting more occasions for error. a judge in trying a cause, if evidence of doubtful competency is offered, can admit it provisionally and exclude it afterwards if, on deliberation, he thinks that it should not be considered. with a jury this is impossible. there must be an immediate ruling one way or the other. in the charge to a jury, also, opportunities are offered for exceptions which do not exist if the cause is to be decided by the judge alone. he does not have to instruct himself in public. he can study the case in private at his leisure. a cause of delay formerly existed in several states which arose from the method of computing the costs taxable against the losing party. they included, by statute, a certain sum, say twenty-five or thirty-three cents a day for each day's attendance at court by the prevailing party. this was construed to mean each day during which the action lay in court, since upon any of them it might by possibility be called up, and the client was always represented by his attorney of record, a notice to whom was a notice to him. christian roselius, one of the leaders of the new orleans bar in the nineteenth century, once said that he had spent a fourth of his life in the court house waiting for his cases to be called. the lawyers, as the duty of attendance fell on them, generally considered this allowance as their perquisite. an attorney with a large docket received, therefore, a number of dollars for every day the court sat, and the longer the term lasted or the more terms to which a cause was carried over, the larger was his gain if his client ultimately obtained judgment, and the defendant was of financial responsibility. this system was not universally discontinued until the last quarter of the nineteenth century. a few states, by statute or constitutional provision, set a certain time within which a decision must be rendered after the trial. california gives ninety days; idaho (const., art. v., sec. ) thirty. a sanction for the law sometimes provided is that the judge cannot draw his salary until he has made oath that he is in no default. * * * * * chapter xxv the attitude of the people toward the judiciary americans are proud of their country and of their state. they are proud of their scheme of government, by which an imperial world-power has been created for certain national and international purposes, resting on a collection of states, each of which is an independent sovereignty, absolutely as respects the others, and for the most part as respects the united states. they are in the mass an educated and intelligent people. the public schools have thus far been found adequate to americanizing the children of foreign immigrants. the colored population of the south stands largely by itself, and constitutes no active and self-moving force in matters of political concern. an educated and intelligent people living under a government of written law of their own making cannot but know how vital it is that this law should be fully guarded and fairly administered. americans have become distrustful of their legislatures. they believe that much of their work is ill-considered, and that some of it has its source in corruption. they are far removed from the chief executive magistrates, and from the sphere in which they move. the president comes nearer to them than the governor of their state because he stands for more, and personifies their country, but it is not from him that they look for peace and safety in the ordinary affairs of life and home. they look for these to the courts, and they know that they will seldom look in vain. only an educated and intelligent people can live under a written constitution. it requires of those whom it governs a certain spirit of conservatism, a certain sentiment of reverence for ancient institutions. our constitutions are mainly the work of former generations. we may amend or recast them, but the substantial framework will remain the same. our declarations of rights speak the language and the lessons of the eighteenth century. their provisions are almost wholly aimed at our executives and legislators. they give guarantees which the judiciary only can enforce. no people can steadily prosper unless a just mean be preserved between reform and conservatism in the administration of the government. the courts stand for conservatism, but by their recognition of custom as law, and their free use of logic and analogy to develop law, they also keep a door open for the entrance of reform. the courts also come very close to the people. they are to be found in every county and almost every township. they settle the estates of the dead. they protect the living. they act largely through juries made up of the people and returning to them after a brief term of public service. all these considerations put americans in a friendly attitude toward the judiciary. it makes less show of authority than the policeman or the militiaman. but the people feel that it has authority and is ready to exercise it always to secure that right be done. when a plain man who thinks that he has been wronged by another declares that he "will have the law on him," it expresses his conviction that he can get justice from the courts. the creation of the judiciary of the united states was welcomed at the outset by all.[footnote: see "life of peter van schaick," .] it was not until party feeling had become intense that republicans found it difficult to look with approval on a force evidently becoming stronger every day, and that jefferson could describe the supreme court as the sappers and miners who were gradually undermining the foundations of american liberty.[footnote: letter to thomas ritchie of dec. , . "works of thomas jefferson," vii, .] of the political questions which engaged attention over the whole country from time to time from the adoption of the constitution to the close of the civil war, almost all bore some relation to the institution of slavery and derived their real vitality from that connection. slavery depended on state laws. unless the authority of each state to allow and regulate it were preserved, its countenance would be endangered. this was largely the source of the "state rights" cry. almost all the powers which the united states possessed the states had lost. for thirteen years each had been in the position of a full sovereign. its courts had exercised jurisdiction over all kinds of actions. now a new set of courts had risen up having over many actions an equal jurisdiction, over some a superior one.[footnote: see chap. x.] the case of chisholm _v._ georgia,[footnote: dallas' reports, .] in , and the institution of similar suits against other states of the south showed that the supreme court of the united states claimed authority to render a money judgment against a state, which meant that it could then issue an execution to collect it by levying on the property of the state. in , the alien and sedition laws were passed, and a crime previously cognizable exclusively in the state courts was made a subject of prosecution in those of the united states if it affected an officer of the united states. a member of congress, matthew lyon, of vermont, who was sentenced in the fall of that year to a fine of $ , and four months in jail for writing of the president and senate, that his message to congress in was a bullying speech, which the senate in a stupid answer had echoed with more servility than ever geo. iii. experienced from either house of parliament, served his time and paid the fine, but for the amount of the latter he was reimbursed by congress in . the case of jonathan robbins[footnote: see chap. iii.] in south carolina in , showed that the circuit court at the request of the president could surrender an american citizen to a foreign government to be carried off and tried for murder. this and the sentence of lyon became immediately the subject of hot discussion in congress, and both contributed to the political revolution which put jefferson in the seat of adams in . the creation by the outgoing party of places for eighteen new circuit judges appointed by adams in the last month of his administration strengthened the popular feeling that the courts of the united states were too powerful. that act was at once repealed,[footnote: see chaps. ix, xxii.] and also the provision for the next regular term of the supreme court. the latter measure was taken to prevent any legal proceedings in the supreme court to secure its intervention in behalf of the displaced judges. the new circuit system had been swept away, but the full bench at washington, headed by marshall, remained. the unsuccessful impeachment of one of them followed in .[footnote: see chap. iii.] his acquittal the next year, and that of a majority of the supreme court of pennsylvania,[footnote: mcmaster, "history of the united states," iii, .] who were impeached there at the same time for punishing a libel on certain proceedings before that court by a sentence of imprisonment, satisfied all that it was practically impossible to secure the removal of a judge except for the gravest cause. judicial independence had been secured by the very struggle to defeat it. what has won in any contest finds favor with the multitude. they admire a victor. from this time on the courts both of the united states and the states grew in public esteem. when those of the former seemed to trench on the fields of state sovereignty, particularly in the south, the inroad was resented.[footnote: see letters of marshall alluding to this, in "proceedings of the massachusetts historical society," d series, xiv, , , , .] in one southern state it was even opposed by force.[footnote: see chap. x.] as late as the supremacy of the supreme court of the united states in expounding the federal constitution was contested by the courts of a northern state; there also in a case growing out of the system of slavery.[footnote: ableman _v._ booth, howard's reports, .] another decision by the same tribunal of a similar nature--that in the dred scott case[footnote: dred scott _v._ sandford, howard's reports, .]--greatly strengthened the confidence of the southern people in the federal courts, and weakened that of the north. it did much to bring on the civil war, but the result of that struggle was to confirm the authority not only of the supreme court but of the supreme court as it was under marshall and his original associates. in , the centenary of his appointment was celebrated all over the country, north and south. such a tribute was never paid before in any country to the memory of a judge. his services were commemorated for the very reason that led jefferson to depreciate them--because they led to the establishment of a strong national government with a controlling judicial authority adequate to protect it within its sphere from interference or obstruction in any way by any state. confidence in the state courts has also been strengthened during the last century. it was greatly shaken at the time of the fall of the federalists. they had lost the executive and legislative power, but they retained the judicial, and the republicans found it hard to tolerate courts that represented the political ideas of a former generation. this continued long after the extinction of the federalist party, and often extended to distrust of judges elected by the republicans who were thought to have become affected by the influence of their senior associates. in the new york constitutional convention of , peter r. livingston appealed to the lawyers present to say "whether it has not been the case that when a man in the country of any political standing has had a suit depending at a circuit court, he has not consulted with his counsel to know what judge was to preside at the circuit; and whether he has not been frequently told that a political judge was to preside and it would not do to let the cause come on."[footnote: reports of the proceedings and debates of the convention of , .] who, he asked, were the present judges of their supreme court? "judge spencer came into office under a republican administration; judge van ness was appointed by a mongrel council; and the elevation to the bench of judge platt was occasioned by the defection from the republican ranks of a man elected to the senate from the county of dutchess, who acted the part of a political judas, and sold his party. we have been bought and sold--there is not one of these men who would have been on the bench if our administration had been truly republican.... there is not a man in this convention who is a republican of any standing or character who would like to have his liberty or property placed in the hands of a political judge of a different party."[footnote: reports of the proceedings and debates of the convention of , .] the judiciary may also have suffered somewhat in the esteem of dispassionate observers on account of its attitude in many of the states toward the financial enterprises in corporate form, in which so much money was made and lost in the first third of the nineteenth century. in commenting on a judicial opinion in a southern bank case, the author of one of our leading american legal treatises, himself once a judge, has referred to this period in these plain words: decisions of this kind, which were not infrequent in the era of state banks of issue, can only be "reconciled" with modern holdings in view of the well-known fact that nearly all the politicians were creditors of those political banks, by notes often renewed, at the time when they finally suspended, and that all the judges were politicians. it can hardly be doubted that in many of those semi-barbarous decisions the judges were either rendering decisions to exonerate themselves from their liabilities to the insolvent banks or to exonerate powerful and influential politicians upon whom they depended for the tenure of their offices.[footnote: thompson on "private corporations," v, p. .] it is quite probable that an insensible bias in favor of friends and neighbors may have had its share in producing the judgments to which reference was thus made, but quite improbable that they were the fruit of baser motives. independently of other considerations, every judge is watched by sharp eyes in every step which he may take in the progress of a cause. he acts in view of the bar at large, and of two of their number in particular, one of whom probably will be disappointed by his decision, and solicitous to ascertain and employ every reasonable ground for overturning it. the bar association of the country have exercised a large influence during the past thirty years in maintaining public confidence in the purity of the bench. it is extremely rare that suspicion of corruption attaches to a judge; and rarer still that it attaches justly. jurors are occasionally found who are guilty of it, and more who, without being chargeable with so black a crime, are more interested in serving a friend than in doing justice. as a whole, however, american courts are clean-handed throughout, and the people know it. the judiciary has been popularized in most states by constitutional provisions replacing tenure during good behavior by stated terms of years, and appointment by the governor or legislature by election by the people. the powers of judges have been on the whole increased. the only matter in which they have been substantially cut down is that of punishment for contempt. serious attempts have been made to abridge their jurisdiction over injunctions, but without success. these attacks have come from those representing certain labor unions. the more thorough organization of working-men in all trades and callings during the last half century, and the development of collectivism as a working theory, have produced a class of leaders among them who regard the courts as manned by representatives of capital and controlled in the interests of capital.[footnote: the number of the _pennsylvania grange news_ for sept., , states this view at length.] as a judicial office can only be properly filled by one who has had a legal education and as, aside from a few petty magistrates and local tribunals, practically all our judges are trained lawyers, it necessarily follows that they cannot belong to the class of working-men in the general acceptation of that term. their education has cost money and is generally the fruit of capital. the judges of the higher courts are usually men of some means. if they were not, they could not have afforded to accept their places. but the people at large do not believe that only the poor man can be relied on to deal justly on the bench. the mass of working-men do not believe it. they do believe that courts have too much power over them in their associated relations. they are in favor of cutting off the right of issuing injunctions to suppress boycotts or "picketing" in case of strikes. but they know that it is from the legislatures and not from the courts that this must be sought. the federal judges stand higher in public estimation than the state judges of corresponding rank. this is partly on account of the paramount authority of the government which they represent. it is partly also because there are none of them who occupy the lower grades of judicial station with a petty jurisdiction over petty controversies. it is more because of their permanence of tenure. this removes them from that field of criticism which surrounds every public officer who holds for a term limited in duration, and is always in the position of a candidate for re-appointment. our methods of judicial appointment are not such as always to exclude political feeling from the bench either of the states or of the united states, but the people know that there is less of it there than in any other department of governmental action. president hadley of yale university has thus expressed what is the general view of the work of the courts held by thoughtful men in the united states; and it is they who in the long run form and lead public opinion. "on the whole, federal and state courts alike have been not only a protection, but the one really efficient protection of minority interests against oppression by the majority.... it has more than once happened that an impatient majority has denounced these courts as instruments of partisanship. the anti-slavery leaders, the soft money leaders, and the labor leaders have in turn taken exception to their utterances, and even ventured to impugn their motives. but i think that most intelligent men who know the history of the country will say that our courts have been the real bulwarks of american liberty; and that while hamilton and his associates would be somewhat disappointed in the working of the machinery of legislation and administration if they could see it in its present shape, they would be filled with admiration at the work which has been accomplished by the judiciary. i believe it to be the judgment of sober-minded men that the courts have furnished the agency which has guarded us against excesses, and have saved the american republic from the necessity of repeating the successive revolutionary experiences which france underwent before she could attain to a stable democracy."[footnote: "freedom and responsibility," , .] this confidence in and respect for the judiciary as a whole has increased with the general advance of the country in population and wealth. there have been larger questions with which to deal, and the courts have been found adequate to the task. but at the same time the personal consequence and reputation of every individual american judge has been steadily decreasing. as states multiply and the range of litigation widens, the work of judicial exposition of legal principles comes to be shared by so many hands that what any one man does is of comparatively small account. there is no room for star players upon the stage. broad as it is, it is too crowded for one to make a conspicuous place for himself and stand as marshall or story, kent or parsons, did, apart from his fellows. popular confidence is now not placed in courts because this or that man is the ruling spirit in them. it is impersonal and attaches itself to the institution of the judiciary as, all things considered, the best guaranty of good government in the united states. this spirit of confidence is, of course, not universal and unqualified. it is often not found in bodies of working men, associated as labor unions. they have repeatedly found a court enforcing public order in a way that interfered with their manner of conducting a strike. they have been met by injunctions, and more often by criminal prosecutions. the membership of a labor union, in many parts of the country, is apt to be largely of foreign birth. the leaders not infrequently know little of the english language and less of american institutions. they have been led, in their native land, to regard the law and its officers as their enemies, and they look at them in the same way here. it is believed, however, that a large majority of the unions regard them with respect, and it is certain that such is the prevailing feeling of non-union men. but that the public trust in our judges is less than it was when the first edition of this work was published,[footnote: see _supra_, page .] is indicated by the favor with which, in many quarters, the doctrine of the "judicial recall" has been received. the dangers incident to its practice are obvious, and seem far to outweigh any attending advantages. in the united states, of all lands on the face of the earth, it is important that the judges should act with resolution and without thought of the consequences personal to themselves. elsewhere in form, but here only in fact, are judges armed with the power of declaring legislative action void which is in conflict with a higher form of law, that proceeded directly from the people, and mainly from the people of a former generation. to expose one who exercises this power to immediate displacement, by a popular vote--largely, perhaps, composed of his political opponents--is to invite the enactment of questionable statutes, and still worse--to weaken the attractions of the bench for able and honest men. our judicial terms, in most of the states, are already too brief for the public good. to make them determinable at the will of the electoral constituency tends powerfully to keep good lawyers at the bar, who might otherwise have done honor to a judicial station. the path of the law by oliver wendell holmes, jr. harvard law review ( ) when we study law we are not studying a mystery but a well-known profession. we are studying what we shall want in order to appear before judges, or to advise people in such a way as to keep them out of court. the reason why it is a profession, why people will pay lawyers to argue for them or to advise them, is that in societies like ours the command of the public force is intrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees. people want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared. the object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts. the means of the study are a body of reports, of treatises, and of statutes, in this country and in england, extending back for six hundred years, and now increasing annually by hundreds. in these sibylline leaves are gathered the scattered prophecies of the past upon the cases in which the axe will fall. these are what properly have been called the oracles of the law. far the most important and pretty nearly the whole meaning of every new effort of legal thought is to make these prophecies more precise, and to generalize them into a thoroughly connected system. the process is one, from a lawyer's statement of a case, eliminating as it does all the dramatic elements with which his client's story has clothed it, and retaining only the facts of legal import, up to the final analyses and abstract universals of theoretic jurisprudence. the reason why a lawyer does not mention that his client wore a white hat when he made a contract, while mrs. quickly would be sure to dwell upon it along with the parcel gilt goblet and the sea-coal fire, is that he foresees that the public force will act in the same way whatever his client had upon his head. it is to make the prophecies easier to be remembered and to be understood that the teachings of the decisions of the past are put into general propositions and gathered into textbooks, or that statutes are passed in a general form. the primary rights and duties with which jurisprudence busies itself again are nothing but prophecies. one of the many evil effects of the confusion between legal and moral ideas, about which i shall have something to say in a moment, is that theory is apt to get the cart before the horse, and consider the right or the duty as something existing apart from and independent of the consequences of its breach, to which certain sanctions are added afterward. but, as i shall try to show, a legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court; and so of a legal right. the number of our predictions when generalized and reduced to a system is not unmanageably large. they present themselves as a finite body of dogma which may be mastered within a reasonable time. it is a great mistake to be frightened by the ever-increasing number of reports. the reports of a given jurisdiction in the course of a generation take up pretty much the whole body of the law, and restate it from the present point of view. we could reconstruct the corpus from them if all that went before were burned. the use of the earlier reports is mainly historical, a use about which i shall have something to say before i have finished. i wish, if i can, to lay down some first principles for the study of this body of dogma or systematized prediction which we call the law, for men who want to use it as the instrument of their business to enable them to prophesy in their turn, and, as bearing upon the study, i wish to point out an ideal which as yet our law has not attained. the first thing for a businesslike understanding of the matter is to understand its limits, and therefore i think it desirable at once to point out and dispel a confusion between morality and law, which sometimes rises to the height of conscious theory, and more often and indeed constantly is making trouble in detail without reaching the point of consciousness. you can see very plainly that a bad man has as much reason as a good one for wishing to avoid an encounter with the public force, and therefore you can see the practical importance of the distinction between morality and law. a man who cares nothing for an ethical rule which is believed and practised by his neighbors is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail if he can. i take it for granted that no hearer of mine will misinterpret what i have to say as the language of cynicism. the law is the witness and external deposit of our moral life. its history is the history of the moral development of the race. the practice of it, in spite of popular jests, tends to make good citizens and good men. when i emphasize the difference between law and morals i do so with reference to a single end, that of learning and understanding the law. for that purpose you must definitely master its specific marks, and it is for that that i ask you for the moment to imagine yourselves indifferent to other and greater things. i do not say that there is not a wider point of view from which the distinction between law and morals becomes of secondary or no importance, as all mathematical distinctions vanish in presence of the infinite. but i do say that that distinction is of the first importance for the object which we are here to consider--a right study and mastery of the law as a business with well understood limits, a body of dogma enclosed within definite lines. i have just shown the practical reason for saying so. if you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience. the theoretical importance of the distinction is no less, if you would reason on your subject aright. the law is full of phraseology drawn from morals, and by the mere force of language continually invites us to pass from one domain to the other without perceiving it, as we are sure to do unless we have the boundary constantly before our minds. the law talks about rights, and duties, and malice, and intent, and negligence, and so forth, and nothing is easier, or, i may say, more common in legal reasoning, than to take these words in their moral sense, at some state of the argument, and so to drop into fallacy. for instance, when we speak of the rights of man in a moral sense, we mean to mark the limits of interference with individual freedom which we think are prescribed by conscience, or by our ideal, however reached. yet it is certain that many laws have been enforced in the past, and it is likely that some are enforced now, which are condemned by the most enlightened opinion of the time, or which at all events pass the limit of interference, as many consciences would draw it. manifestly, therefore, nothing but confusion of thought can result from assuming that the rights of man in a moral sense are equally rights in the sense of the constitution and the law. no doubt simple and extreme cases can be put of imaginable laws which the statute-making power would not dare to enact, even in the absence of written constitutional prohibitions, because the community would rise in rebellion and fight; and this gives some plausibility to the proposition that the law, if not a part of morality, is limited by it. but this limit of power is not coextensive with any system of morals. for the most part it falls far within the lines of any such system, and in some cases may extend beyond them, for reasons drawn from the habits of a particular people at a particular time. i once heard the late professor agassiz say that a german population would rise if you added two cents to the price of a glass of beer. a statute in such a case would be empty words, not because it was wrong, but because it could not be enforced. no one will deny that wrong statutes can be and are enforced, and we would not all agree as to which were the wrong ones. the confusion with which i am dealing besets confessedly legal conceptions. take the fundamental question, what constitutes the law? you will find some text writers telling you that it is something different from what is decided by the courts of massachusetts or england, that it is a system of reason, that it is a deduction from principles of ethics or admitted axioms or what not, which may or may not coincide with the decisions. but if we take the view of our friend the bad man we shall find that he does not care two straws for the axioms or deductions, but that he does want to know what the massachusetts or english courts are likely to do in fact. i am much of this mind. the prophecies of what the courts will do in fact, and nothing more pretentious, are what i mean by the law. take again a notion which as popularly understood is the widest conception which the law contains--the notion of legal duty, to which already i have referred. we fill the word with all the content which we draw from morals. but what does it mean to a bad man? mainly, and in the first place, a prophecy that if he does certain things he will be subjected to disagreeable consequences by way of imprisonment or compulsory payment of money. but from his point of view, what is the difference between being fined and taxed a certain sum for doing a certain thing? that his point of view is the test of legal principles is proven by the many discussions which have arisen in the courts on the very question whether a given statutory liability is a penalty or a tax. on the answer to this question depends the decision whether conduct is legally wrong or right, and also whether a man is under compulsion or free. leaving the criminal law on one side, what is the difference between the liability under the mill acts or statutes authorizing a taking by eminent domain and the liability for what we call a wrongful conversion of property where restoration is out of the question. in both cases the party taking another man's property has to pay its fair value as assessed by a jury, and no more. what significance is there in calling one taking right and another wrong from the point of view of the law? it does not matter, so far as the given consequence, the compulsory payment, is concerned, whether the act to which it is attached is described in terms of praise or in terms of blame, or whether the law purports to prohibit it or to allow it. if it matters at all, still speaking from the bad man's point of view, it must be because in one case and not in the other some further disadvantages, or at least some further consequences, are attached to the act by law. the only other disadvantages thus attached to it which i ever have been able to think of are to be found in two somewhat insignificant legal doctrines, both of which might be abolished without much disturbance. one is, that a contract to do a prohibited act is unlawful, and the other, that, if one of two or more joint wrongdoers has to pay all the damages, he cannot recover contribution from his fellows. and that i believe is all. you see how the vague circumference of the notion of duty shrinks and at the same time grows more precise when we wash it with cynical acid and expel everything except the object of our study, the operations of the law. nowhere is the confusion between legal and moral ideas more manifest than in the law of contract. among other things, here again the so-called primary rights and duties are invested with a mystic significance beyond what can be assigned and explained. the duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it--and nothing else. if you commit a tort, you are liable to pay a compensatory sum. if you commit a contract, you are liable to pay a compensatory sum unless the promised event comes to pass, and that is all the difference. but such a mode of looking at the matter stinks in the nostrils of those who think it advantageous to get as much ethics into the law as they can. it was good enough for lord coke, however, and here, as in many others cases, i am content to abide with him. in bromage v. genning, a prohibition was sought in the kings' bench against a suit in the marches of wales for the specific performance of a covenant to grant a lease, and coke said that it would subvert the intention of the covenantor, since he intends it to be at his election either to lose the damages or to make the lease. sergeant harra for the plaintiff confessed that he moved the matter against his conscience, and a prohibition was granted. this goes further than we should go now, but it shows what i venture to say has been the common law point of view from the beginning, although mr. harriman, in his very able little book upon contracts has been misled, as i humbly think, to a different conclusion. i have spoken only of the common law, because there are some cases in which a logical justification can be found for speaking of civil liabilities as imposing duties in an intelligible sense. these are the relatively few in which equity will grant an injunction, and will enforce it by putting the defendant in prison or otherwise punishing him unless he complies with the order of the court. but i hardly think it advisable to shape general theory from the exception, and i think it would be better to cease troubling ourselves about primary rights and sanctions altogether, than to describe our prophecies concerning the liabilities commonly imposed by the law in those inappropriate terms. i mentioned, as other examples of the use by the law of words drawn from morals, malice, intent, and negligence. it is enough to take malice as it is used in the law of civil liability for wrongs what we lawyers call the law of torts--to show that it means something different in law from what it means in morals, and also to show how the difference has been obscured by giving to principles which have little or nothing to do with each other the same name. three hundred years ago a parson preached a sermon and told a story out of fox's book of martyrs of a man who had assisted at the torture of one of the saints, and afterward died, suffering compensatory inward torment. it happened that fox was wrong. the man was alive and chanced to hear the sermon, and thereupon he sued the parson. chief justice wray instructed the jury that the defendant was not liable, because the story was told innocently, without malice. he took malice in the moral sense, as importing a malevolent motive. but nowadays no one doubts that a man may be liable, without any malevolent motive at all, for false statements manifestly calculated to inflict temporal damage. in stating the case in pleading, we still should call the defendant's conduct malicious; but, in my opinion at least, the word means nothing about motives, or even about the defendant's attitude toward the future, but only signifies that the tendency of his conduct under known circumstances was very plainly to cause the plaintiff temporal harm. in the law of contract the use of moral phraseology led to equal confusion, as i have shown in part already, but only in part. morals deal with the actual internal state of the individual's mind, what he actually intends. from the time of the romans down to now, this mode of dealing has affected the language of the law as to contract, and the language used has reacted upon the thought. we talk about a contract as a meeting of the minds of the parties, and thence it is inferred in various cases that there is no contract because their minds have not met; that is, because they have intended different things or because one party has not known of the assent of the other. yet nothing is more certain than that parties may be bound by a contract to things which neither of them intended, and when one does not know of the other's assent. suppose a contract is executed in due form and in writing to deliver a lecture, mentioning no time. one of the parties thinks that the promise will be construed to mean at once, within a week. the other thinks that it means when he is ready. the court says that it means within a reasonable time. the parties are bound by the contract as it is interpreted by the court, yet neither of them meant what the court declares that they have said. in my opinion no one will understand the true theory of contract or be able even to discuss some fundamental questions intelligently until he has understood that all contracts are formal, that the making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs--not on the parties' having meant the same thing but on their having said the same thing. furthermore, as the signs may be addressed to one sense or another--to sight or to hearing--on the nature of the sign will depend the moment when the contract is made. if the sign is tangible, for instance, a letter, the contract is made when the letter of acceptance is delivered. if it is necessary that the minds of the parties meet, there will be no contract until the acceptance can be read; none, for example, if the acceptance be snatched from the hand of the offerer by a third person. this is not the time to work out a theory in detail, or to answer many obvious doubts and questions which are suggested by these general views. i know of none which are not easy to answer, but what i am trying to do now is only by a series of hints to throw some light on the narrow path of legal doctrine, and upon two pitfalls which, as it seems to me, lie perilously near to it. of the first of these i have said enough. i hope that my illustrations have shown the danger, both to speculation and to practice, of confounding morality with law, and the trap which legal language lays for us on that side of our way. for my own part, i often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether, and other words adopted which should convey legal ideas uncolored by anything outside the law. we should lose the fossil records of a good deal of history and the majesty got from ethical associations, but by ridding ourselves of an unnecessary confusion we should gain very much in the clearness of our thought. so much for the limits of the law. the next thing which i wish to consider is what are the forces which determine its content and its growth. you may assume, with hobbes and bentham and austin, that all law emanates from the sovereign, even when the first human beings to enunciate it are the judges, or you may think that law is the voice of the zeitgeist, or what you like. it is all one to my present purpose. even if every decision required the sanction of an emperor with despotic power and a whimsical turn of mind, we should be interested none the less, still with a view to prediction, in discovering some order, some rational explanation, and some principle of growth for the rules which he laid down. in every system there are such explanations and principles to be found. it is with regard to them that a second fallacy comes in, which i think it important to expose. the fallacy to which i refer is the notion that the only force at work in the development of the law is logic. in the broadest sense, indeed, that notion would be true. the postulate on which we think about the universe is that there is a fixed quantitative relation between every phenomenon and its antecedents and consequents. if there is such a thing as a phenomenon without these fixed quantitative relations, it is a miracle. it is outside the law of cause and effect, and as such transcends our power of thought, or at least is something to or from which we cannot reason. the condition of our thinking about the universe is that it is capable of being thought about rationally, or, in other words, that every part of it is effect and cause in the same sense in which those parts are with which we are most familiar. so in the broadest sense it is true that the law is a logical development, like everything else. the danger of which i speak is not the admission that the principles governing other phenomena also govern the law, but the notion that a given system, ours, for instance, can be worked out like mathematics from some general axioms of conduct. this is the natural error of the schools, but it is not confined to them. i once heard a very eminent judge say that he never let a decision go until he was absolutely sure that it was right. so judicial dissent often is blamed, as if it meant simply that one side or the other were not doing their sums right, and if they would take more trouble, agreement inevitably would come. this mode of thinking is entirely natural. the training of lawyers is a training in logic. the processes of analogy, discrimination, and deduction are those in which they are most at home. the language of judicial decision is mainly the language of logic. and the logical method and form flatter that longing for certainty and for repose which is in every human mind. but certainty generally is illusion, and repose is not the destiny of man. behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding. you can give any conclusion a logical form. you always can imply a condition in a contract. but why do you imply it? it is because of some belief as to the practice of the community or of a class, or because of some opinion as to policy, or, in short, because of some attitude of yours upon a matter not capable of exact quantitative measurement, and therefore not capable of founding exact logical conclusions. such matters really are battle grounds where the means do not exist for the determinations that shall be good for all time, and where the decision can do no more than embody the preference of a given body in a given time and place. we do not realize how large a part of our law is open to reconsideration upon a slight change in the habit of the public mind. no concrete proposition is self evident, no matter how ready we may be to accept it, not even mr. herbert spencer's "every man has a right to do what he wills, provided he interferes not with a like right on the part of his neighbors." why is a false and injurious statement privileged, if it is made honestly in giving information about a servant? it is because it has been thought more important that information should be given freely, than that a man should be protected from what under other circumstances would be an actionable wrong. why is a man at liberty to set up a business which he knows will ruin his neighborhood? it is because the public good is supposed to be best subserved by free competition. obviously such judgments of relative importance may vary in different times and places. why does a judge instruct a jury that an employer is not liable to an employee for an injury received in the course of his employment unless he is negligent, and why do the jury generally find for the plaintiff if the case is allowed to go to them? it is because the traditional policy of our law is to confine liability to cases where a prudent man might have foreseen the injury, or at least the danger, while the inclination of a very large part of the community is to make certain classes of persons insure the safety of those with whom they deal. since the last words were written, i have seen the requirement of such insurance put forth as part of the programme of one of the best known labor organizations. there is a concealed, half conscious battle on the question of legislative policy, and if any one thinks that it can be settled deductively, or once for all, i only can say that i think he is theoretically wrong, and that i am certain that his conclusion will not be accepted in practice semper ubique et ab omnibus. indeed, i think that even now our theory upon this matter is open to reconsideration, although i am not prepared to say how i should decide if a reconsideration were proposed. our law of torts comes from the old days of isolated, ungeneralized wrongs, assaults, slanders, and the like, where the damages might be taken to lie where they fell by legal judgment. but the torts with which our courts are kept busy today are mainly the incidents of certain well known businesses. they are injuries to person or property by railroads, factories, and the like. the liability for them is estimated, and sooner or later goes into the price paid by the public. the public really pays the damages, and the question of liability, if pressed far enough, is really a question how far it is desirable that the public should insure the safety of one whose work it uses. it might be said that in such cases the chance of a jury finding for the defendant is merely a chance, once in a while rather arbitrarily interrupting the regular course of recovery, most likely in the case of an unusually conscientious plaintiff, and therefore better done away with. on the other hand, the economic value even of a life to the community can be estimated, and no recovery, it may be said, ought to go beyond that amount. it is conceivable that some day in certain cases we may find ourselves imitating, on a higher plane, the tariff for life and limb which we see in the leges barbarorum. i think that the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage. the duty is inevitable, and the result of the often proclaimed judicial aversion to deal with such considerations is simply to leave the very ground and foundation of judgments inarticulate, and often unconscious, as i have said. when socialism first began to be talked about, the comfortable classes of the community were a good deal frightened. i suspect that this fear has influenced judicial action both here and in england, yet it is certain that it is not a conscious factor in the decisions to which i refer. i think that something similar has led people who no longer hope to control the legislatures to look to the courts as expounders of the constitutions, and that in some courts new principles have been discovered outside the bodies of those instruments, which may be generalized into acceptance of the economic doctrines which prevailed about fifty years ago, and a wholesale prohibition of what a tribunal of lawyers does not think about right. i cannot but believe that if the training of lawyers led them habitually to consider more definitely and explicitly the social advantage on which the rule they lay down must be justified, they sometimes would hesitate where now they are confident, and see that really they were taking sides upon debatable and often burning questions. so much for the fallacy of logical form. now let us consider the present condition of the law as a subject for study, and the ideal toward which it tends. we still are far from the point of view which i desire to see reached. no one has reached it or can reach it as yet. we are only at the beginning of a philosophical reaction, and of a reconsideration of the worth of doctrines which for the most part still are taken for granted without any deliberate, conscious, and systematic questioning of their grounds. the development of our law has gone on for nearly a thousand years, like the development of a plant, each generation taking the inevitable next step, mind, like matter, simply obeying a law of spontaneous growth. it is perfectly natural and right that it should have been so. imitation is a necessity of human nature, as has been illustrated by a remarkable french writer, m. tard, in an admirable book, les lois de l'imitation. most of the things we do, we do for no better reason than that our fathers have done them or that our neighbors do them, and the same is true of a larger part than we suspect of what we think. the reason is a good one, because our short life gives us no time for a better, but it is not the best. it does not follow, because we all are compelled to take on faith at second hand most of the rules on which we base our action and our thought, that each of us may not try to set some corner of his world in the order of reason, or that all of us collectively should not aspire to carry reason as far as it will go throughout the whole domain. in regard to the law, it is true, no doubt, that an evolutionist will hesitate to affirm universal validity for his social ideals, or for the principles which he thinks should be embodied in legislation. he is content if he can prove them best for here and now. he may be ready to admit that he knows nothing about an absolute best in the cosmos, and even that he knows next to nothing about a permanent best for men. still it is true that a body of law is more rational and more civilized when every rule it contains is referred articulately and definitely to an end which it subserves, and when the grounds for desiring that end are stated or are ready to be stated in words. at present, in very many cases, if we want to know why a rule of law has taken its particular shape, and more or less if we want to know why it exists at all, we go to tradition. we follow it into the year books, and perhaps beyond them to the customs of the salian franks, and somewhere in the past, in the german forests, in the needs of norman kings, in the assumptions of a dominant class, in the absence of generalized ideas, we find out the practical motive for what now best is justified by the mere fact of its acceptance and that men are accustomed to it. the rational study of law is still to a large extent the study of history. history must be a part of the study, because without it we cannot know the precise scope of rules which it is our business to know. it is a part of the rational study, because it is the first step toward an enlightened scepticism, that is, towards a deliberate reconsideration of the worth of those rules. when you get the dragon out of his cave on to the plain and in the daylight, you can count his teeth and claws, and see just what is his strength. but to get him out is only the first step. the next is either to kill him, or to tame him and make him a useful animal. for the rational study of the law the blackletter man may be the man of the present, but the man of the future is the man of statistics and the master of economics. it is revolting to have no better reason for a rule of law than that so it was laid down in the time of henry iv. it is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past. i am thinking of the technical rule as to trespass ab initio, as it is called, which i attempted to explain in a recent massachusetts case. let me take an illustration, which can be stated in a few words, to show how the social end which is aimed at by a rule of law is obscured and only partially attained in consequence of the fact that the rule owes its form to a gradual historical development, instead of being reshaped as a whole, with conscious articulate reference to the end in view. we think it desirable to prevent one man's property being misappropriated by another, and so we make larceny a crime. the evil is the same whether the misappropriation is made by a man into whose hands the owner has put the property, or by one who wrongfully takes it away. but primitive law in its weakness did not get much beyond an effort to prevent violence, and very naturally made a wrongful taking, a trespass, part of its definition of the crime. in modern times the judges enlarged the definition a little by holding that, if the wrong-doer gets possession by a trick or device, the crime is committed. this really was giving up the requirement of trespass, and it would have been more logical, as well as truer to the present object of the law, to abandon the requirement altogether. that, however, would have seemed too bold, and was left to statute. statutes were passed making embezzlement a crime. but the force of tradition caused the crime of embezzlement to be regarded as so far distinct from larceny that to this day, in some jurisdictions at least, a slip corner is kept open for thieves to contend, if indicted for larceny, that they should have been indicted for embezzlement, and if indicted for embezzlement, that they should have been indicted for larceny, and to escape on that ground. far more fundamental questions still await a better answer than that we do as our fathers have done. what have we better than a blind guess to show that the criminal law in its present form does more good than harm? i do not stop to refer to the effect which it has had in degrading prisoners and in plunging them further into crime, or to the question whether fine and imprisonment do not fall more heavily on a criminal's wife and children than on himself. i have in mind more far-reaching questions. does punishment deter? do we deal with criminals on proper principles? a modern school of continental criminalists plumes itself on the formula, first suggested, it is said, by gall, that we must consider the criminal rather than the crime. the formula does not carry us very far, but the inquiries which have been started look toward an answer of my questions based on science for the first time. if the typical criminal is a degenerate, bound to swindle or to murder by as deep seated an organic necessity as that which makes the rattlesnake bite, it is idle to talk of deterring him by the classical method of imprisonment. he must be got rid of; he cannot be improved, or frightened out of his structural reaction. if, on the other hand, crime, like normal human conduct, is mainly a matter of imitation, punishment fairly may be expected to help to keep it out of fashion. the study of criminals has been thought by some well known men of science to sustain the former hypothesis. the statistics of the relative increase of crime in crowded places like large cities, where example has the greatest chance to work, and in less populated parts, where the contagion spreads more slowly, have been used with great force in favor of the latter view. but there is weighty authority for the belief that, however this may be, "not the nature of the crime, but the dangerousness of the criminal, constitutes the only reasonable legal criterion to guide the inevitable social reaction against the criminal." the impediments to rational generalization, which i illustrated from the law of larceny, are shown in the other branches of the law, as well as in that of crime. take the law of tort or civil liability for damages apart from contract and the like. is there any general theory of such liability, or are the cases in which it exists simply to be enumerated, and to be explained each on its special ground, as is easy to believe from the fact that the right of action for certain well known classes of wrongs like trespass or slander has its special history for each class? i think that the law regards the infliction of temporal damage by a responsible person as actionable, if under the circumstances known to him the danger of his act is manifest according to common experience, or according to his own experience if it is more than common, except in cases where upon special grounds of policy the law refuses to protect the plaintiff or grants a privilege to the defendant. i think that commonly malice, intent, and negligence mean only that the danger was manifest to a greater or less degree, under the circumstances known to the actor, although in some cases of privilege malice may mean an actual malevolent motive, and such a motive may take away a permission knowingly to inflict harm, which otherwise would be granted on this or that ground of dominant public good. but when i stated my view to a very eminent english judge the other day, he said, "you are discussing what the law ought to be; as the law is, you must show a right. a man is not liable for negligence unless he is subject to a duty." if our difference was more than a difference in words, or with regard to the proportion between the exceptions and the rule, then, in his opinion, liability for an act cannot be referred to the manifest tendency of the act to cause temporal damage in general as a sufficient explanation, but must be referred to the special nature of the damage, or must be derived from some special circumstances outside of the tendency of the act, for which no generalized explanation exists. i think that such a view is wrong, but it is familiar, and i dare say generally is accepted in england. everywhere the basis of principle is tradition, to such an extent that we even are in danger of making the role of history more important than it is. the other day professor ames wrote a learned article to show, among other things, that the common law did not recognize the defence of fraud in actions upon specialties, and the moral might seem to be that the personal character of that defence is due to its equitable origin. but if, as i said, all contracts are formal, the difference is not merely historical, but theoretic, between defects of form which prevent a contract from being made, and mistaken motives which manifestly could not be considered in any system that we should call rational except against one who was privy to those motives. it is not confined to specialties, but is of universal application. i ought to add that i do not suppose that mr. ames would disagree with what i suggest. however, if we consider the law of contract, we find it full of history. the distinctions between debt, covenant, and assumpsit are merely historical. the classification of certain obligations to pay money, imposed by the law irrespective of any bargain as quasi contracts, is merely historical. the doctrine of consideration is merely historical. the effect given to a seal is to be explained by history alone. consideration is a mere form. is it a useful form? if so, why should it not be required in all contracts? a seal is a mere form, and is vanishing in the scroll and in enactments that a consideration must be given, seal or no seal. why should any merely historical distinction be allowed to affect the rights and obligations of business men? since i wrote this discourse i have come on a very good example of the way in which tradition not only overrides rational policy, but overrides it after first having been misunderstood and having been given a new and broader scope than it had when it had a meaning. it is the settled law of england that a material alteration of a written contract by a party avoids it as against him. the doctrine is contrary to the general tendency of the law. we do not tell a jury that if a man ever has lied in one particular he is to be presumed to lie in all. even if a man has tried to defraud, it seems no sufficient reason for preventing him from proving the truth. objections of like nature in general go to the weight, not to the admissibility, of evidence. moreover, this rule is irrespective of fraud, and is not confined to evidence. it is not merely that you cannot use the writing, but that the contract is at an end. what does this mean? the existence of a written contract depends on the fact that the offerer and offeree have interchanged their written expressions, not on the continued existence of those expressions. but in the case of a bond, the primitive notion was different. the contract was inseparable from the parchment. if a stranger destroyed it, or tore off the seal, or altered it, the obligee count not recover, however free from fault, because the defendant's contract, that is, the actual tangible bond which he had sealed, could not be produced in the form in which it bound him. about a hundred years ago lord kenyon undertook to use his reason on the tradition, as he sometimes did to the detriment of the law, and, not understanding it, said he could see no reason why what was true of a bond should not be true of other contracts. his decision happened to be right, as it concerned a promissory note, where again the common law regarded the contract as inseparable from the paper on which it was written, but the reasoning was general, and soon was extended to other written contracts, and various absurd and unreal grounds of policy were invented to account for the enlarged rule. i trust that no one will understand me to be speaking with disrespect of the law, because i criticise it so freely. i venerate the law, and especially our system of law, as one of the vastest products of the human mind. no one knows better than i do the countless number of great intellects that have spent themselves in making some addition or improvement, the greatest of which is trifling when compared with the mighty whole. it has the final title to respect that it exists, that it is not a hegelian dream, but a part of the lives of men. but one may criticise even what one reveres. law is the business to which my life is devoted, and i should show less than devotion if i did not do what in me lies to improve it, and, when i perceive what seems to me the ideal of its future, if i hesitated to point it out and to press toward it with all my heart. perhaps i have said enough to show the part which the study of history necessarily plays in the intelligent study of the law as it is today. in the teaching of this school and at cambridge it is in no danger of being undervalued. mr. bigelow here and mr. ames and mr. thayer there have made important contributions which will not be forgotten, and in england the recent history of early english law by sir frederick pollock and mr. maitland has lent the subject an almost deceptive charm. we must beware of the pitfall of antiquarianism, and must remember that for our purposes our only interest in the past is for the light it throws upon the present. i look forward to a time when the part played by history in the explanation of dogma shall be very small, and instead of ingenious research we shall spend our energy on a study of the ends sought to be attained and the reasons for desiring them. as a step toward that ideal it seems to me that every lawyer ought to seek an understanding of economics. the present divorce between the schools of political economy and law seems to me an evidence of how much progress in philosophical study still remains to be made. in the present state of political economy, indeed, we come again upon history on a larger scale, but there we are called on to consider and weigh the ends of legislation, the means of attaining them, and the cost. we learn that for everything we have we give up something else, and we are taught to set the advantage we gain against the other advantage we lose, and to know what we are doing when we elect. there is another study which sometimes is undervalued by the practical minded, for which i wish to say a good word, although i think a good deal of pretty poor stuff goes under that name. i mean the study of what is called jurisprudence. jurisprudence, as i look at it, is simply law in its most generalized part. every effort to reduce a case to a rule is an effort of jurisprudence, although the name as used in english is confined to the broadest rules and most fundamental conceptions. one mark of a great lawyer is that he sees the application of the broadest rules. there is a story of a vermont justice of the peace before whom a suit was brought by one farmer against another for breaking a churn. the justice took time to consider, and then said that he has looked through the statutes and could find nothing about churns, and gave judgment for the defendant. the same state of mind is shown in all our common digests and textbooks. applications of rudimentary rules of contract or tort are tucked away under the head of railroads or telegraphs or go to swell treatises on historical subdivisions, such as shipping or equity, or are gathered under an arbitrary title which is thought likely to appeal to the practical mind, such as mercantile law. if a man goes into law it pays to be a master of it, and to be a master of it means to look straight through all the dramatic incidents and to discern the true basis for prophecy. therefore, it is well to have an accurate notion of what you mean by law, by a right, by a duty, by malice, intent, and negligence, by ownership, by possession, and so forth. i have in my mind cases in which the highest courts seem to me to have floundered because they had no clear ideas on some of these themes. i have illustrated their importance already. if a further illustration is wished, it may be found by reading the appendix to sir james stephen's criminal law on the subject of possession, and then turning to pollock and wright's enlightened book. sir james stephen is not the only writer whose attempts to analyze legal ideas have been confused by striving for a useless quintessence of all systems, instead of an accurate anatomy of one. the trouble with austin was that he did not know enough english law. but still it is a practical advantage to master austin, and his predecessors, hobbes and bentham, and his worthy successors, holland and pollock. sir frederick pollock's recent little book is touched with the felicity which marks all his works, and is wholly free from the perverting influence of roman models. the advice of the elders to young men is very apt to be as unreal as a list of the hundred best books. at least in my day i had my share of such counsels, and high among the unrealities i place the recommendation to study the roman law. i assume that such advice means more than collecting a few latin maxims with which to ornament the discourse--the purpose for which lord coke recommended bracton. if that is all that is wanted, the title de regulis juris antiqui can be read in an hour. i assume that, if it is well to study the roman law, it is well to study it as a working system. that means mastering a set of technicalities more difficult and less understood than our own, and studying another course of history by which even more than our own the roman law must explained. if any one doubts me, let him read keller's der romische civil process und die actionen, a treatise on the praetor's edict, muirhead's most interesting historical introduction to the private law of rome, and, to give him the best chance, sohn's admirable institutes. no. the way to gain a liberal view of your subject is not to read something else, but to get to the bottom of the subject itself. the means of doing that are, in the first place, to follow the existing body of dogma into its highest generalizations by the help of jurisprudence; next, to discover from history how it has come to be what it is; and finally, so far as you can, to consider the ends which the several rules seek to accomplish, the reasons why those ends are desired, what is given up to gain them, and whether they are worth the price. we have too little theory in the law rather than too much, especially on this final branch of study. when i was speaking of history, i mentioned larceny as an example to show how the law suffered from not having embodied in a clear form a rule which will accomplish its manifest purpose. in that case the trouble was due to the survival of forms coming from a time when a more limited purpose was entertained. let me now give an example to show the practical importance, for the decision of actual cases, of understanding the reasons of the law, by taking an example from rules which, so far as i know, never have been explained or theorized about in any adequate way. i refer to statutes of limitation and the law of prescription. the end of such rules is obvious, but what is the justification for depriving a man of his rights, a pure evil as far as it goes, in consequence of the lapse of time? sometimes the loss of evidence is referred to, but that is a secondary matter. sometimes the desirability of peace, but why is peace more desirable after twenty years than before? it is increasingly likely to come without the aid of legislation. sometimes it is said that, if a man neglects to enforce his rights, he cannot complain if, after a while, the law follows his example. now if this is all that can be said about it, you probably will decide a case i am going to put, for the plaintiff; if you take the view which i shall suggest, you possibly will decide it for the defendant. a man is sued for trespass upon land, and justifies under a right of way. he proves that he has used the way openly and adversely for twenty years, but it turns out that the plaintiff had granted a license to a person whom he reasonably supposed to be the defendant's agent, although not so in fact, and therefore had assumed that the use of the way was permissive, in which case no right would be gained. has the defendant gained a right or not? if his gaining it stands on the fault and neglect of the landowner in the ordinary sense, as seems commonly to be supposed, there has been no such neglect, and the right of way has not been acquired. but if i were the defendant's counsel, i should suggest that the foundation of the acquisition of rights by lapse of time is to be looked for in the position of the person who gains them, not in that of the loser. sir henry maine has made it fashionable to connect the archaic notion of property with prescription. but the connection is further back than the first recorded history. it is in the nature of man's mind. a thing which you have enjoyed and used as your own for a long time, whether property or an opinion, takes root in your being and cannot be torn away without your resenting the act and trying to defend yourself, however you came by it. the law can ask no better justification than the deepest instincts of man. it is only by way of reply to the suggestion that you are disappointing the former owner, that you refer to his neglect having allowed the gradual dissociation between himself and what he claims, and the gradual association of it with another. if he knows that another is doing acts which on their face show that he is on the way toward establishing such an association, i should argue that in justice to that other he was bound at his peril to find out whether the other was acting under his permission, to see that he was warned, and, if necessary, stopped. i have been speaking about the study of the law, and i have said next to nothing about what commonly is talked about in that connection--text-books and the case system, and all the machinery with which a student comes most immediately in contact. nor shall i say anything about them. theory is my subject, not practical details. the modes of teaching have been improved since my time, no doubt, but ability and industry will master the raw material with any mode. theory is the most important part of the dogma of the law, as the architect is the most important man who takes part in the building of a house. the most important improvements of the last twenty-five years are improvements in theory. it is not to be feared as unpractical, for, to the competent, it simply means going to the bottom of the subject. for the incompetent, it sometimes is true, as has been said, that an interest in general ideas means an absence of particular knowledge. i remember in army days reading of a youth who, being examined for the lowest grade and being asked a question about squadron drill, answered that he never had considered the evolutions of less than ten thousand men. but the weak and foolish must be left to their folly. the danger is that the able and practical minded should look with indifference or distrust upon ideas the connection of which with their business is remote. i heard a story, the other day, of a man who had a valet to whom he paid high wages, subject to deduction for faults. one of his deductions was, "for lack of imagination, five dollars." the lack is not confined to valets. the object of ambition, power, generally presents itself nowadays in the form of money alone. money is the most immediate form, and is a proper object of desire. "the fortune," said rachel, "is the measure of intelligence." that is a good text to waken people out of a fool's paradise. but, as hegel says, "it is in the end not the appetite, but the opinion, which has to be satisfied." to an imagination of any scope the most far-reaching form of power is not money, it is the command of ideas. if you want great examples, read mr. leslie stephen's history of english thought in the eighteenth century, and see how a hundred years after his death the abstract speculations of descartes had become a practical force controlling the conduct of men. read the works of the great german jurists, and see how much more the world is governed today by kant than by bonaparte. we cannot all be descartes or kant, but we all want happiness. and happiness, i am sure from having known many successful men, cannot be won simply by being counsel for great corporations and having an income of fifty thousand dollars. an intellect great enough to win the prize needs other food besides success. the remoter and more general aspects of the law are those which give it universal interest. it is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law. note: project gutenberg also has an html version of this file which includes the original illustrations. see -h.htm or -h.zip: (http://www.gutenberg.net/ / / / / / -h/ -h.htm) or (http://www.gutenberg.net/ / / / / / -h.zip) a backward glance at eighty recollections & comment by charles a. murdock massachusetts humboldt bay san francisco [illustration: a camera glance at eighty] this book is gratefully dedicated to the friends who inspired it contents chapter i. new england ii. a hidden harbor iii. nine years north iv. the real bret harte v. san francisco--the sixties vi. later san francisco vii. incidents in public service viii. an investment ix. by-product x. concerning persons xi. outings xii. occasional verse epilogue illustrations a camera glance at eighty humboldt bay, winship map francis bret harte (saroney, ) the clay-street office the day after thomas starr king (original given bret harte) horatio stebbins, san francisco, - horace davis, harvard in outings: the sierras, hawaii foreword in the autumn of the board of directors of the pacific coast conference of unitarian churches took note of the approaching eightieth birthday of mr. charles a. murdock, of san francisco. recalling mr. murdock's active service of all good causes, and more particularly his devotion to the cause of liberal religion through a period of more than half a century, the board decided to recognize the anniversary, which fell on january , , by securing the publication of a volume of mr. murdock's essays. a committee was appointed to carry out the project, composed of rev. h.e.b. speight (chairman), rev. c.s.s. dutton, and rev. earl m. wilbur. the committee found a very ready response to its announcement of a subscription edition, and mr. murdock gave much time and thought to the preparation of material for the volume. "a backward glance at eighty" is now issued with the knowledge that its appearance is eagerly awaited by all mr. murdock's friends and by a large number of others who welcome new light upon the life of an earlier generation of pioneers. the publication of the book is an affectionate tribute to a good citizen, a staunch friend, a humble christian gentleman, and a fearless servant of truth--charles a. murdock. memorial committee. genesis in the beginning, the publication of this book is not the deliberate act of the octogenarian. separate causes seem to have co-operated independently to produce the result. several years ago, in a modest literary club, the late henry morse stephens, in his passion for historical material, urged me from time to time to devote my essays to early experiences in the north of the state and in san francisco. these papers were familiar to my friends, and as my eightieth birthday approached they asked that i add to them introductory and connecting chapters and publish a memorial volume. to satisfy me that it would find acceptance they secured advance orders to cover the expense. under these conditions i could not but accede to their request. i would subordinate an unimportant personal life. my purpose is to recall conditions and experiences that may prove of historical interest and to express some of the conclusions and convictions formed in an active and happy life. i wish to express my gratitude to the members of the committee and to my friend, george prescott vance, for suggestions and assistance in preparation and publication. c.a.m. chapter i new england my very early memories alternate between my grandfather's farm in leominster, massachusetts, and the pemberton house in boston. my father and mother, both born in leominster, were schoolmates, and in due time they married. father was at first a clerk in the country store, but at an early age became the tavern-keeper. i was born on january , . soon thereafter father took charge of the pemberton house on howard street, which developed into whig headquarters. being the oldest grandson, i was welcome at the old homestead, and i was so well off under the united care of my aunts that i spent a fair part of my life in the country. my father was a descendant of robert murdock (of roxbury), who left scotland in , and whose descendants settled in newton. my father's branch removed to winchendon, home of tubs and pails. my grandfather (abel) moved to leominster and later settled in worcester, where he died when i was a small boy. my father's mother was a moore, also of scotch ancestry. she died young, and on my father's side there was no family home to visit. my mother's father was deacon charles hills, descended from joseph hills, who came from england in . nearly every new england town was devoted to some special industry, and leominster was given to the manufacture of horn combs. the industry was established by a hills ancestor, and when i was born four hills brothers were co-operative comb-makers, carrying on the business in connection with small farming. the proprietors were the employees. if others were required, they could be readily secured at the going wages of one dollar a day. my grandfather was the oldest of the brothers. when he married betsy buss his father set aside for him twenty acres of the home farm, and here he built the house in which he lived for forty years, raising a family of ten children. i remember quite clearly my great-grandfather silas hills. he was old and querulous, and could certainly scold; but now that i know that he was born in , and had nineteen brothers and sisters, i think of him with compassion and wonder. it connects me with the distant past to think i remember a man who was sixteen years old when the declaration of independence was signed. he died at ninety-five, which induces apprehension. my grandfather's house faced the country road that ran north over the rolling hills among the stone-walled farms, and was about a mile from the common that marked the center of the town. it was white, of course, with green blinds. the garden in front was fragrant from castilian roses, sweet williams, and pinks. there were lilacs and a barberry-bush. a spacious hall bisected the house. the south front room was sacred to funerals and weddings; we seldom entered it. back of that was grandma's room. stairs in the hall led to two sleeping-rooms above. the north front room was "the parlor," but seldom used. there on the center-table reposed baxter's "saints' rest" and young's "night thoughts." the fireplace flue so seldom held a fire that the swallows utilized the chimney for their nests. back of this was the dining-room, in which we lived. it had a large brick oven and a serviceable fireplace. the kitchen was an ell, from which stretched woodshed, carriage-house, pigpen, smoking-house, etc. currant and quince bushes, rhubarb, mulberry, maple, and butternut trees were scattered about. an apple orchard helped to increase the frugal income. we raised corn and pumpkins, and hay for the horse and cows. the corn was gathered into the barn across the road, and a husking-bee gave occasion for mild merrymaking. as necessity arose the dried ears were shelled and the kernels taken to the mill, where an honest portion was taken for grist. the corn-meal bin was the source of supply for all demands for breakfast cereal. hasty-pudding never palled. small incomes sufficed. our own bacon, pork, spare-rib, and souse, our own butter, eggs, and vegetables, with occasional poultry, made us little dependent on others. one of the great-uncles was a sportsman, and snared rabbits and pickerel, thus extending our bill of fare. bread and pies came from the weekly baking, to say nothing of beans and codfish. berries from the pasture and nuts from the woods were plentiful. for lights we were dependent on tallow candles or whale-oil, and soap was mostly home-made. life was simple but happy. the small boy had small duties. he must pick up chips, feed the hens, hunt eggs, sprout potatoes, and weed the garden. but he had fun the year round, varying with the seasons, but culminating with the winter, when severity was unheeded in the joy of coasting, skating, and sleighing in the daytime, and apples, chestnuts, and pop-corn in the long evenings. i never tired of watching my grandfather and his brothers as they worked in their shops. the combs were not the simple instruments we now use to separate and arrange the hair, but ornamental structures that women wore at the back of the head to control their supposedly surplus locks. they were associated with spanish beauties, and at their best estate were made of shell, but our combs were of horn and of great variety. in the better quality, shell was closely imitated, but some were frankly horn and ornamented by the application of aquafortis in patterns artistic or grotesque according to the taste and ability of the operator. the horns were sawed, split, boiled in oil, pressed flat, and then died out ready to be fashioned into the shape required for the special product. this was done in a separate little shop by uncle silas and uncle alvah. uncle emerson then rubbed and polished them in the literally one-horsepower factory, and grandfather bent and packed them for the market. the power was supplied by a patient horse, "log cabin" by name, denoting the date of his acquisition in the harrison campaign. all day the faithful nag trod a horizontal wheel in the cellar, which gave way to his efforts and generated the power that was transmitted by belt to the simple machinery above. uncle emerson generally sung psalm-tunes as he worked. deacon hills, as he was always called, was finisher, packer, and business manager. i was interested to notice that in doing up the dozen combs in a package he always happened to select the best one to tie on the outside as a sample. that was his nearest approach to dishonesty. he was a thoroughly good man, but burdened and grave. i do not know that i ever heard him laugh, and he seldom, if ever, smiled. he worked hard, was faithful to every duty, and no doubt loved his family; but soberness was inbred. he read the _cultivator_, the _christian register_, and the almanac. after the manner of his time, he was kind and helpful; but life was hard and joyless. he was greatly respected and was honored by a period of service as representative in the general court. my grandmother was a gentle, patient soul, living for her family, wholly unselfish and incapable of complaint. she was placid and cheerful, courageous and trusting. i had four fine aunts, two of whom were then unmarried and devoted to the small boy. one was a veritable ray of sunshine; the other, gifted of mind and nearest my age, was most companionable. only one son lived to manhood. he had gone from the home, but faithfully each year returned from the city to observe thanksgiving, the great day of new england. holidays were somewhat infrequent. fourth of july and muster, of course, were not forgotten, and while christmas was almost unnoticed thanksgiving we never failed to mark with all its social and religious significance. almost everybody went to meeting, and the sermon, commonly reviewing the year, was regarded as an event. the home-coming of the absent family members and the reunion at a bountiful dinner became the universal custom. there were no distractions in the way of professional football or other games. the service, the family, and plenty of good things to eat engrossed the day. it was a time of rejoicing--and unlimited pie. sunday was strictly observed. grandfather always blacked his boots before sundown of saturday night, and on sunday anything but going to meeting was regarded with suspicion, especially if it was associated with any form of enjoyment. in summer "log cabin" was hitched into the shafts of the chaise, and with gait slightly accelerated beyond the daily habit jogged to town and was deposited in the church shed during the service. at noon we rejoined him and ate our ginger-bread and cheese while he disposed of his luncheon of oats. then we went back to sunday-school, and he rested or fought flies. in winter he was decked with bells and hitched in the sleigh. plenty of robes and a foot-stove, or at least a slab of heated soap-stone, provided for grandmother's comfort. the church when it was formed was named "the first congregational." when it became unitarian, the word, in parentheses, was added. the second congregational was always called "the orthodox." the church building was a fine example of early architecture. the steeple was high, the walls were white, the pews were square. on a tablet at the right of the pulpit the ten commandments were inscribed, and at the left the beatitudes were found. the first minister i remember was saintly hiram withington, who won my loyalty by his interest manifested by standing me up by the door-jamb and marking my growth from call to call. i remember rufus p. stebbins, the former minister, who married my father and mother and refused a fee because my father had always cut his hair in the barberless days of old. amos a. smith was later in succession. i loved him for his goodness. sunday-school was always a matter of course, and was never dreaded. i early enjoyed the rollo books and later reveled in mayne reid. the haymow in the barn and a blessed knothole are associated with many happy hours. reading has dangers. i think one of the first books i ever read was a bound volume of _merry's museum_. there was a continued story recounting the adventures of one dick boldhero. it was illustrated with horrible woodcuts. one of them showed dick bearing on a spirited charger the clasped form of the heroine, whom he had abducted. it impressed me deeply. i recognized no distinction of sex or attractiveness and lived in terror of suffering abduction. when i saw a stranger coming i would run into the shop and clasp my arms around some post until i felt the danger past. this must have been very early in my career. indeed one of my aunts must have done the reading, leaving me to draw distress from the thrilling illustrations. a very early trial was connected with a visit to a school. i was getting proud of my ability to spell small words. a primer-maker had attempted to help the association of letters with objects by placing them in juxtaposition, but through a mistake he led me to my undoing. i knew my letters and i knew some things. i plainly distinguished the letters p-a-n. against them i was puzzled by a picture of a spoon, and with credulity, perhaps characteristic, i blurted out "p-a-n--spoon," whereat to my great discomfiture everybody laughed. i have never liked being laughed at from that day to this. i am glad that i left new england early, but i am thankful that it was not before i realized the loveliness of the arbutus as it braved the snow and smiled at the returning sun, nor that i made forts or played morris in the snow at school. i have passed on from my first impressions in the country perhaps unwarrantedly. it is hard to differentiate consistently. i may have mixed early memories with more mature realization. i did not live with my grandmother continuously. i went back and forth as convenience and others' desires prompted. i do not know what impressions of life in the pemberton house came first. very early i remember helping my busy little mother, who in the spring of the year uncorded all the bedsteads and made life miserable for the festive bedbugs by an application of whale oil from a capable feather applied to the inside of all holes through which the ropes ran. the re-cording of the beds was a tedious process requiring two persons, and i soon grew big enough to count as one. i remember also the little triangular tin candlesticks that we inserted at the base of each of the very small panes of the window when we illuminated the hotel on special nights. i distinctly recall the quivering of the full glasses of jelly on tapering disks that formed attractive table ornaments. daniel webster was often the central figure at banquets in the pemberton. general sam houston, senator from texas, was also entertained, for i remember that my father told me of an incident that occurred many years after, when he passed through san antonio. as he strolled through the city he saw the senator across the street, but, supposing that he would not be remembered, had no thought of speaking, whereupon houston called out, "young man, are you not going to speak to me!" my father replied that he had not supposed that he would be remembered. "of course i remember meeting you at the pemberton house in boston." i remember some of the boarders, regular and transient, distinguished and otherwise. there was a young grocery clerk who used to hold me in his lap and talk to me. he became one of the best of california's governors, frederick f. low, and was a close friend of thomas starr king. a wit on a san francisco paper once published at thanksgiving time "a thanksgiving proclamation by our stuttering reporter--'praise god from whom all blessings f-f-low.'" in my memory he is associated with haymaker square. i well remember the famous circus clown of the period, joe pentland, very serious and proper when not professionally funny. a minstrel who made a great hit with "jim crow" once gave me a valuable lesson on table manners. one barrett, state treasurer, was a boarder. he had a standing order: "roast beef, rare and fat; gravy from the dish." madame biscaccianti, of the italian opera, graced our table. so did the original drew family. the hotel adjoined the howard athenaeum, and i profited from peeping privileges to the extent of many pins. i recall some wonderful trained animals--van amberg's, i think. a lion descended from back-stage and crawled with stealth upon a sleeping traveler in the foreground. it was thrilling but harmless. there were also some viennese dancers, who introduced, i believe, the cracovienne. i remember a "sissy madigan," who seemed a wonder of beauty and charm. there was great excitement when the athenaeum caught on fire. i can see the trunks being dragged down the stairs to the damage of the banisters, and great confusion and dismay among our boarders. a small boy was hurried in his nightie across the street and kept till all danger had passed. a very early memory is the marching through the streets of soldiers bound for the mexican war. off and on, i lived in boston till , when my father left for california and the family returned to leominster. my first school in boston was in the basement of park street church. hermann clarke, son of our minister, rev. james freeman clarke, was a fellow pupil. afterward i went to the mayhew grammar school, connected in my mind with a mild chastisement for imitating a trombone when a procession passed by. the only other punishment i recall was a spanking by my father for playing "hookey" and roaming in the public garden. i remember sunday-school parades through certain public streets. but the great event was the joining of all the day schools in the great parade when cochituate water was introduced into the city. it was a proud moment when the fountain in the frogpond on the common threw on high the water prodigiously brought from far cochituate. another boston memory is the boston theater, where william warren reigned. cinderella and her pumpkin carriage are fresh in my mind. i also recall a waxwork representation of the birth in the manger. i still can see the heads of the cattle, the spreading horns, and the blessed babe. as i recall my early boyhood, many changes in customs seem suggested. there may be trundle-beds in these days, but i never see them. no fathers wear boots in this era, and bootjacks are as extinct as the dodo. i have kept a few letters written by my mother when i was away from her. they were written on a flat sheet, afterward folded and fastened by a wafer. envelopes had not arrived; neither had postage-stamps. sealing-wax was then in vogue and red tape for important documents. in all well-regulated dwellings there were whatnots in the corner with shells and waxworks and other objects of beauty or mild interest. the pictures did not move--they were fixed in the family album. the musical instruments most in evidence were jew's-harps and harmonicas. the rollo books were well calculated to make a boy sleepy. the franconia books were more attractive, and "the green mountain boy" was thrilling. a small boy's wildest dissipation was rolling a hoop. and now california casts her shadow. my father was an early victim. i remember his parting admonition, as he was a man of few words and seldom offered advice. "be careful," he said, "of wronging others. do not repeat anything you hear that reflects on another. it is a pretty good rule, when you cannot speak well of another, to say nothing at all." he must have said more, but that is all that i recall. father felt that in two years he would return with enough money to provide for our needs. in the meantime we could live at less expense and in greater safety in the country. we returned to the town we all loved, and the two years stretched to six. we three children went to school, my mother keeping house. in my grandfather died, and in my grandmother joined him. during these leominster days we greatly enjoyed a visit from my father's sister, charlotte, with her husband, john downes, an astronomer connected with harvard university. they were charming people, bringing a new atmosphere from their cambridge home. uncle john tried to convince me that by dividing the heavens i might count the visible stars, but he did not succeed. he wrote me a fine, friendly letter on his returning home, in , using a sheet of blue paper giving on the third page a view of the college buildings and a procession of the alumni as they left the church sept. , . in the letter he pronounced it a very good view. it is presented elsewhere, in connection with the picture of a friend who entered the university a few years later. school life was pleasant and i suppose fairly profitable. until i entered high school i attended the ungraded district school. it was on the edge of a wood, and a source of recess pleasure was making umbrageous homes of pine boughs. on the last day of school the school committee, the leading minister, the ablest lawyer, and the best-loved doctor were present to review and address us. we took much pride in the decoration. wreaths of plaited leaves were twisted around the stovepipe; the top of the stove was banked with pond-lilies gathered from a pond in our woods. medals were primitive. for a week i wore a pierced ninepence in evidence of my proficiency in mental arithmetic; then it passed to stronger hands. according to present standards we indulged in precious little amusement. entertainments were few. once in a while a circus came to town, and there were organizations of musical attractions like the hutchinson family and the swiss bell ringers. ossian e. dodge was a name with which to conjure, and a panorama was sometimes unrolled alternating with dissolving views. seen in retrospect, they all seem tame and unalluring. the lyceum was, the feature of strongest interest to the grownups. lectures gave them a chance to see men of note like wendell phillips, emerson, or william lloyd garrison. even boys could enjoy poets of the size of john g. saxe. well do i remember the distrust felt for abolitionists. i had an uncle who entertained fred douglass and was ready at any time to help a fugitive slave to canada. he was considered dangerous. he was a shoemaker, and i remember how he would drop his work when no one was by and get up to pace the floor and rehearse a speech he probably never would make. occasionally our singing-school would give a concert, and once in a farmers' chorus i was costumed in a smock cut down from one of grandfather's. i carried a sickle and joined in "through lanes with hedgerows, pearly." i kept up in the singing but let my attention wander as the farmers made their exit and did not notice that i was left till the other boys were almost off the stage. i then skipped after them, swinging my scythe in chagrin. in the high school we gave an exhibition in which we enacted some scotch scene. i think it had to do with roderick dhu. we were to be costumed, and i was bothered about kilts and things. mr. phillips, the principal, suggested that the stage be set with small evergreen trees. the picture of them in my mind's eye brought relief, and i impulsively exclaimed, "that will be good, because we will not have to wear pants," meaning, of course, the kilts. he had a sense of humor and was a tease. he pretended to take me literally, and raised a laugh as he said, "why, murdock!" one bitterly cold night we went to fitchburg, five miles away, to describe the various pictures given at a magic-lantern exhibition. my share was a few lines on a poor view of scarborough castle. at this distance it seems like a poor investment of energy. i wonder if modern education has not made some progress in a generation. here was a boy of fourteen who had never studied history or physics or physiology and was assigned nothing but latin, algebra and grammar. i left at fourteen and a half to come to california, knowing little but what i had picked up accidentally. a diary of my voyage, dating from june , , vividly illustrates the character of the english inculcated by the school of the period. it refers to the "crowd assembled to witness our departure." it recounts all we saw, beginning with washacum pond, which we passed on our way to worcester: "of considerable magnitude, ... and the small islands which dot its surface render it very beautiful." the buildings of new york impressed the little prig greatly. trinity church he pronounces "one of the most splendid edifices which i ever saw," and he waxes into "opalian" eloquence over barnum's american museum, which was "illuminated from basement to attic." we sailed on the "george law," arriving at aspinwall, the eastern terminal of the panama railroad, in ten days. crossing the isthmus, with its wonders of tropical foliage and varied monkeys, gave a glimpse of a new world. we left panama june th and arrived at san francisco on the morning of the th. let the diary tell the tale of the beginning of life in california: "i arose about - / this morning and went on deck. we were then in the golden gate, which is the entrance into san francisco bay. on each side of us was high land. on the left-hand side was a lighthouse, and the light was still burning. on my right hand was the outer telegraph building. when they see us they telegraph to another place, from which they telegraph all over san francisco. when we were going in there was a strong ebb tide. we arrived at the wharf a little after five o'clock. the first thing which i did was to look for my father. him i did not see." father had been detained in humboldt by the burning of the connecting steamer, so we went to wilson's exchange in sansome near sacramento street, and in the afternoon took the "senator" for sacramento, where my uncle and aunt lived. the part of a day in san francisco was used to the full in prospecting the strange city. we walked its streets and climbed its hills, much interested in all we saw. the line of people waiting for their mail up at portsmouth square was perhaps the most novel sight. a race up the bay, waiting for the tide at benicia, sticking on the "hog's back" in the night, and the surprise of a flat, checkerboard city were the most impressive experiences of the trip to sacramento. a month or so on this compulsory visit passed very pleasantly. we found fresh delight in watching the chinese and their habits. we had never seen a specimen before. a very pleasant picnic and celebration on the fourth of july was another attractive novelty. cheap john auctions and frequent fires afforded amusement and excitement, and we learned to drink muddy water without protest. on the th the diary records: "last night about o'clock i woke, and who should i behold, standing by me, but my father! is it possible that after a separation of nearly six years i have at last met my father? it is even so. this form above me is, indeed, my father's." the day's entry concludes: "i have really enjoyed myself today. i like the idea of a father very well." we were compelled to await an upcoast steamer till august, when that adventurous craft, the steamer "mckim," now newly named the "humboldt," resumed sea-voyages. the pacific does not uniformly justify the name, but this time it completely succeeded. the ocean was as smooth as the deadest mill-pond--not a breath of wind or a ripple of the placid surface. treacherous humboldt bar, sometimes a mountain of danger, did not even disclose its location. the tar from the ancient seams of the humboldt's decks responded to the glowing sun until pacing the deck was impossible, but sea-sickness was no less so. we lazily steamed into the beautiful harbor, up past eureka, her streets still occupied by stumps, and on to the ambitious pier stretching nearly two miles from uniontown to deep water. and now that the surroundings may be better understood, let me digress from the story of my boyhood and touch on the early romance of humboldt bay--its discovery and settlement. chapter ii a hidden harbor the northwesterly corner of california is a region apart. in its physical characteristics and in its history it has little in common with the rest of the state. with no glamour of spanish occupancy, its romance is of quite another type. at the time of the discovery of gold in california the northwestern portion of the state was almost unknown territory. for seven hundred miles, from fort ross to the mouth of the columbia, there stretched a practically uncharted coast. a few headlands were designated on the imperfect map and a few streams were poorly sketched in, but the great domain had simply been approached from the sea and its characteristics were mostly a matter of conjecture. so far as is known, not a white man lived in all california west of the coast range and north of fort ross. here is, generally speaking, a mountainous region heavily timbered along the coast, diversified with river valleys and rolling hills. a marked peculiarity is its sharp slope toward the northwest for its entire length. east of the coast range the sacramento river flows due south, while to the west of the broken mountains all the streams flow northwesterly--more northerly than westerly. eel river flows about miles northerly and, say, forty miles westerly. the same course is taken by the mattole, the mad, and the trinity rivers. the watershed of this corner to the northwest is extensive, including a good part of what are now mendocino, trinity, siskiyou, humboldt, and del norte counties. the drainage of the westerly slope of the mountain ranges north and west of shasta reaches the pacific with difficulty. the klamath river flows southwest for miles until it flanks the siskiyous. it there meets the trinity, which flows northwest. the combined rivers take the direction of the trinity, but the name of the klamath prevails. it enters the ocean about thirty miles south of the oregon line. the whole region is extremely mountainous. the course of the river is tortuous, winding among the mountains. the water-flow shows the general trend of the ranges; but most of the rivers have numerous forks, indicating transverse ridges. from an aeroplane the mountains of northern california would suggest an immense drove of sleeping razor-backed hogs nestling against one another to keep warm, most of their snouts pointed northwest. less than one-fourth of the land is tillable, and not more than a quarter of that is level. yet it is a beautiful, interesting and valuable country, largely diversified, with valuable forests, fine mountain ranges, gently rolling hills, rich river bottoms, and, on the upper trinity, gold-bearing bars. mendocino (in humboldt county) was given its significant name about . when heceta and bodega in were searching the coast for harbors, they anchored under the lee of the next northerly headland. after the pious manner of the time, having left san blas on trinity sunday, they named their haven trinidad. their arrival was six days before the battle of bunker hill. it is about forty-five miles from cape mendocino to trinidad. the bold, mountainous hills, though they often reach the ocean, are somewhat depressed between these points. halfway between them lies humboldt bay, a capacious harbor with a tidal area of twenty-eight miles. it is the best and almost the only harbor from san francisco to puget sound. it is fourteen miles long, in shape like an elongated human ear. it eluded discovery with even greater success than san francisco bay, and the story of its final settlement is striking and romantic. neither cabrillo nor heceta nor drake makes mention of it. in vancouver followed the coast searchingly, but when he anchored in what he called the "nook" of trinidad he was entirely ignorant of a near-by harbor. we must bear in mind that spain had but the slightest acquaintance with the empire she claimed. the occasional visits of navigators did not extend her knowledge of the great domain. it is nevertheless surprising that in the long course of the passage of the galleons to and from the philippines the bays of san francisco and humboldt should not have been found even by accident. the nearest settlement was the russian colony near bodega, one hundred and seventy-five miles to the south. in kuskoff found a river entering the ocean near the point. he called it slavianski, but general vallejo rescued us from that when he referred to it as russian river. the land was bought from the indians for a trifle. madrid was applied to for a title, but the spaniards declined to give it. the russians held possession, however, and proceeded with cultivation. to better protect their claims, nineteen miles up the coast, they erected a stockade mounting twenty guns. they called the fort kosstromitinoff, but the spaniards referred to it as _el fuerte de los rusos_, which was anglicized as fort russ, and, finally, as fort ross. the colony prospered for a while, but sealing "pinched out" and the territory occupied was too small to satisfy agricultural needs. in the russians sold the whole possession to general sutter for thirty thousand dollars and withdrew from california, returning to alaska. in a party of adventurers started north from fort ross for oregon, following the coast. one jedidiah smith, a trapper, was the leader. it is said that smith river, near the oregon line, was named for him. somewhere on the way all but four were reported killed by the indians. they are supposed to have been the first white men to enter the humboldt country. among the very early settlers in california was pearson b. redding, who lived on a ranch near mount shasta. in , on a trapping expedition, he struck west through a divide in the coast range and discovered a good-sized, rapid river flowing to the west. from its direction and the habit of rivers to seek the sea, he concluded that it was likely to reach the pacific at about the latitude of trinidad, named seventy years before. he thereupon gave it the name of trinity, and in due time left it running and returned to his home. three years passed, and gold was discovered by marshall. redding was interested and curious and visited the scene of marshall's find. the american river and its bars reminded him of the trinity, and when he returned to his home he organized a party to prospect it. gold was found in moderate quantities, especially on the upper portions. the trinity mines extended confidence and added to the excitement. camps sprang up on every bar. the town of weaverville took the lead, and still holds it. quite a population followed and the matter of provisioning it became serious. the base of supplies was sacramento, two hundred miles distant and over a range of mountains. to the coast it could not be more than seventy miles. if the trinity entered a bay or was navigable, it would be a great saving and of tremendous advantage. the probability or possibility was alluring and was increasingly discussed. in october, , there were at rich bar forty miners short of provisions and ready for any adventure. the indians reported that eight suns to the west was a large bay with fertile land and tall trees. a vision of a second san francisco, a port for all northern california, urged them to try for it. twenty-four men agreed to join the party, and the fifth of november was set for the start. dr. josiah gregg was chosen leader and two indians were engaged as guides. when the day arrived the rain was pouring and sixteen of the men and the two guides backed out, but the remaining eight were courageous (or foolhardy) and not to be thwarted. with a number of pack animals and eight days' supplies they started up the slippery mountainside. at the summit they encountered a snowstorm and camped for the night. in the morning they faced a western view that would have discouraged most men--a mass of mountains, rough-carved and snow-capped, with main ridges parallel on a northwesterly line. in every direction to the most distant horizon stretched these forbidding mountains. the distance to the ocean was uncertain, and their course to it meant surmounting ridge after ridge of the intervening mountains. they plunged down and on, crossed a swollen stream, and crawled up the eastern side of the next ridge. for six days this performance was repeated. then they reached a large stream with an almost unsurmountable mountain to the west. they followed down the stream until they found it joined another of about equal size. they had discovered the far-flowing south fork of the trinity. they managed to swim the united river and found a large indian village, apparently giving the inhabitants their first view of white men. the natives all fled in fright, leaving their camps to the strange beings. the invaders helped themselves to the smoked salmon that was plentiful, leaving flour in exchange. at dusk about eighty of the fighting sex returned with renewed courage, and threateningly. it took diplomacy to postpone an attack till morning, when powder would be dry. they relied upon a display of magic power from their firearms that would impress superior numbers with the senselessness of hostilities. they did not sleep in great security, and early in the morning proceeded with the demonstration, upon which much depended. when they set up a target and at sixty yards pierced a scrap of paper and the tree to which it was pinned the effect was satisfactory. the indians were astonished at the feat, but equally impressed by the unaccountable noise from the explosion. they became very friendly, warned the wonder-workers of the danger to be encountered if they headed north, where indians were many and fierce, and told them to keep due west. the perilous journey was continued by the ascent of another mountainside. provisions soon became very scarce, nothing but flour remaining, and little of that. on the th they went dinnerless to their cold blankets. their animals had been without food for two days, but the next morning they found grass. a redwood forest was soon encountered, and new difficulties developed. the underbrush was dense and no trails were found. fallen trees made progress very slow. two miles a day was all they could accomplish. they painfully worked through the section of the marvelous redwood belt destined to astonish the world, reaching a small prairie, where they camped. the following day they devoted to hunting, luckily killing a number of deer. here they remained several days, drying the venison in the meantime; but when, their strength recuperated, they resumed their journey, the meat was soon exhausted. three days of fasting for man and beast followed. two of the horses were left to their fate. then another prairie yielded more venison and the meat of three bears. for three weeks they struggled on; life was sustained at times by bitter acorns alone. at length the welcome sound of surf was heard, but three days passed before they reached the ocean. three of the animals had died of starvation in the last stretch of the forest. the men had not eaten for two days, and devoted the first day on the beach to securing food. one shot a bald eagle; another found a raven devouring a cast-up fish, both of which he secured. all were stewed together, and a good night's sleep followed the questionable meal. the party struck the coast near the headland that in had been named trinidad, but not being aware of this fact they named it, for their leader, gregg's point. after two days' feasting on mussels and dried salmon obtained from the indians, they kept on south. soon after crossing a small stream, now named little river, they came to one by no means so little. dr. gregg insisted on getting out his instruments and ascertaining the latitude, but the others had no scientific interest and were in a hurry to go on. they hired indians to row them across in canoes, and all except the doctor bundled in. finding himself about to be left, he grabbed up his instruments and waded out into the stream to reach the canoe, which had no intention of leaving him. he got in, wet and very angry, nursing his wrath till shore was reached; then he treated his companions to some vigorous language. they responded in kind, and the altercation became so violent that the row gave the stream its name, mad river. they continued down the beach, camping when night overtook them. wood, the chronicler of the expedition, [footnote: "the narrative of l.k. wood," published many years after, and largely incorporated in bledsoe's "history of the indian wars of northern california," is the source of most of the incidents relating to gregg's party embraced in this chapter.] and buck went in different directions to find water. wood returned first with a bucketful, brackish and poor. buck soon after arrived with a supply that looked much better, but when gregg sampled it he made a wry face and asked buck where he found it. he replied that he dipped it out of a smooth lake about a half mile distant. it was good plain salt water; they had discovered the mythical bay--or supposed they had. they credulously named it trinity, expecting to come to the river later. the next day they proceeded down the narrow sand strip that now bounds the west side of humboldt bay, but when they reached the harbor entrance from the ocean they were compelled to retrace their steps and try the east shore. the following day they headed the bay, camping at a beautiful plateau on the edge of the redwood belt, giving a fine view of a noble landlocked harbor and a rich stretch of bottom land reaching to mad river. here they found an abundant spring, and narrowly missed a good supper; for they shot a large elk, which, to their great disappointment, took to the brush. it was found dead the next morning, and its head, roasted in ashes, constituted a happy christmas dinner--for december th had arrived, completing an even fifty days since the start from rich bar. they proceeded leisurely down the east side of the bay, stopping the second day nearly opposite the entrance. it seemed a likely place for a townsite, and they honored the water-dipping discoverer by calling it bucksport. then they went on, crossing the little stream now named elk river, and camping near what was subsequently called humboldt point. they were disappointed that no river of importance emptied into so fine a bay, but they realized the importance of such a harbor and the value of the soil and timber. they were, however, in no condition to settle, or even to tarry. their health and strength were impaired, ammunition was practically exhausted, and there were no supplies. they would come back, but now they must reach civilization. it was midwinter and raining almost constantly. they had little idea of distance, but knew there were settlers to the south, and that they must reach them or starve. so they turned from the bay they had found to save their lives. the third day they reached a large river flowing from the south, entering the ocean a few miles south of the bay. as they reached it they met two very old indians loaded down with eels just taken from the river, which the indians freely shared with the travelers. they were so impressed with them and more that followed that they bestowed on the magnificent river which with many branches drains one of the most majestic domains on earth the insignificant, almost sacrilegious name of _eel_! for two days they camped, consuming eels and discussing the future. a most unfortunate difference developed, dividing the little group of men who had suffered together so long. gregg and three others favored following the ocean beach. the other four, headed by wood, were of the opinion that the better course would be to follow up eel river to its head, crossing the probably narrow divide and following down some stream headed either south or east. neither party would yield and they parted company, each almost hopeless. wood and his companions soon found their plan beset with great difficulties. spurs of the mountains came to the river's edge and cut off ascent. after five days they left the river and sought a mountain ridge. a heavy snowfall added to their discomfiture. they killed a small deer, and camped for five days, devouring it thankfully. compelled by the snow, they returned to the river-bed, the skin of the deer their only food. one morning they met and shot at five grizzly bears, but none were killed. the next morning in a mountain gully eight ugly grizzlies faced them. in desperation they determined to attack. wood and wilson were to advance and fire. the others held themselves in reserve--one of them up a tree. at fifty feet each selected a bear and fired. wilson killed his bear; wood thought he had finished his. the beast fell, biting the earth and writhing in agony. wilson sensibly climbed a tree and called upon wood to do likewise. he started to first reload his rifle and the ball stuck. when the two shots were fired five of the bears started up the mountain, but one sat quietly on its haunches watching proceedings. as wood struggled with his refractory bullet it started for him. he gained a small tree and climbed beyond reach. unable to load, he used his rifle to beat back the beast as it tried to claw him. to his horror the bear he thought was killed rose to its feet and furiously charged the tree, breaking it down at once. wood landed on his feet and ran down the mountain to a small buckeye, the bear after him. he managed to hook his arm around the tree, swinging his body clear. the wounded bear was carried by its momentum well down the mountain. wood ran for another tree, the other bear close after him, snapping at his heels. before he could climb out of reach he was grabbed by the ankle and pulled down. the wounded bear came jumping up the mountain and caught him by the shoulder. they pulled against each other as if to dismember him. his hip was dislocated and he suffered some painful flesh wounds. his clothing was stripped from his body and he felt the end had come, but the bears seemed disinclined to seize his flesh. they were evidently suspicious of white meat. finally one disappeared up the ravine, while the other sat down a hundred yards away, and keenly watched him. as long as he kept perfectly still the bear was quiet, but if he moved at all it rushed upon him. wilson came to his aid and both finally managed to climb trees beyond reach. the bear then sat down between the trees, watching both and growling threateningly if either moved. it finally tired of the game and to their great relief disappeared up the mountain. wood, suffering acutely, was carried down to the camp, where they remained twelve days, subsisting on the bear wilson had killed. wood grew worse instead of better, and the situation was grave. little ammunition was left, they were practically without shoes or clothing, and certain death seemed to face them. wood urged them to seek their own safety, saying they could leave him with the indians, or put an end to his sufferings at any time. failing to induce the indians to take him, it was decided to try to bind him on his horse and take him along on the hard journey. he suffered torture, but it was a day at a time and he had great fortitude. after ten days of incredible suffering they reached the ranch of mrs. mark west, thirty miles from sonoma. the date was february th, one hundred and four days from rich bar. the four who started to follow the beach had experiences no less trying. they found it impossible to accomplish their purpose. bold mountains came quite to the shore and blocked the way. they finally struck east for the sacramento valley. they were short of food and suffered unutterably. dr. gregg grew weaker day by day until he fell from his horse and died from starvation, speaking no word. the other three pushed on and managed to reach sacramento a few days after the wood party arrived at sonoma. while these adventurous miners were prosecuting the search for the mythical harbor, enterprising citizens of san francisco renewed efforts to reach it from the ocean. in december, , soon after wood and his companions started from the trinity river, the brig "cameo" was dispatched north to search carefully for a port. she returned without success, but was again dispatched. on this trip she rediscovered trinidad. interest grew, and by march of not less than forty vessels were enlisted in the search. my father, who left boston early in , going by panama and the chagres river, had been through three fires in san francisco and was ready for any change. he joined with a number of acquaintances on one of these ventures, acting as secretary of the company. they purchased the "paragon," a gloucester fishing-boat of tons burden, and early in march, under the command of captain march, with forty-two men in the party, sailed north. they hugged the coast and kept a careful lookout for a harbor, but passed the present humboldt bay in rather calm weather and in the daytime without seeing it. the cause of what was then inexplicable is now quite plain. the entrance has the prevailing northwest slant. the view into the bay from the ocean is cut off by the overlapping south spit. a direct view reveals no entrance; you can not see in by looking back after having passed it. at sea the line of breakers seems continuous, the protruding point from the south connecting in surf line with that from the north. moreover, the bay at the entrance is very narrow. the wooded hills are so near the entrance that there seems no room for a bay. the "paragon" soon found heavy weather and was driven far out to sea. then for three days she was in front of a gale driving her in shore. she reached the coast nearly at the oregon line and dropped anchor in the lee of a small island near point st. george. in the night a gale sprang up, blowing fiercely in shore toward an apparently solid cliff. one after another the cables to her three anchors parted, and my father said it was with a feeling of relief that they heard the last one snap, the suspense giving way to what they believed to be the end of all. but there proved to be an unsuspected sandspit at the base of the cliff, and the "paragon" at high tide plowed her way to a berth she never left. her bones long marked the spot, and for many years the roadstead was known as paragon bay. no lives were lost and no property was saved. about twenty-five of the survivors returned to san francisco on the "cameo," but my father stayed by, and managed to reach humboldt bay soon after its discovery, settling in uniontown in may, . the glory of the ocean discovery remained for the "laura virginia," a baltimore craft, commanded by lieutenant douglass ottinger, a revenue officer on leave of absence. she left soon after the "paragon," and kept close in shore. soon after leaving cape mendocino she reached the mouth of eel river and came to anchor. the next day three other vessels anchored and the "general morgan" sent a boat over the river bar. the "laura virginia" proceeded north and the captain soon saw the waters of a bay, but could see no entrance. he proceeded, anchoring first at trinidad and then at where crescent city was later located. there he found the "cameo" at anchor and the "paragon" on the beach. remaining in the roadstead two days, he started back, and tracing a stream of fresh-looking water discovered the mouth of the klamath. arriving at trinidad, he sent five men down by land to find out if there was an entrance to the bay he had seen. on their favorable report, second officer buhne was instructed to take a ship's boat and sound the entrance before the vessel should attempt it. on april , , he crossed the bar, finding four and a half fathoms. buhne remained in the bay till the ship dropped down. on april th he went out and brought her in. after much discussion the bay and the city they proposed to locate were named humboldt, after the distinguished naturalist and traveler, for whom a member of the company had great admiration. let us now return to l.k. wood, whom we left at the mark west home in the sonoma valley, recovering from the serious injuries incident to the bear encounter on eel river. after about six weeks of recuperation, wood pushed on to san francisco and organized a party of thirty men to return to humboldt and establish a settlement. they were twenty days on the journey, arriving at the shore of the bay on april th, five days after the entrance of the "laura virginia." they were amazed to see the vessel at anchor off humboldt point. they quietly drew back into the woods, and skirting the east side of the bay came out at the bucksport site. four men remained to hold it. the others pushed on to the head of the bay, where they had enjoyed their christmas dinner. this they considered the best place for a town. for three days they were very busily engaged in posting notices, laying foundations for homes, and otherwise fortifying their claims. they named the new settlement uniontown. about six years afterward it was changed to arcata, the original indian name for the spot. the change was made in consideration of the confusion occasioned by there being a uniontown in el dorado county. and so the hidden harbor that had long inspired legend and tradition, and had been the source of great suffering and loss, was revealed. it was _not_ fed by the trinity or any other river. the mouth of the trinity was _not_ navigable; it did not boast a mouth--the klamath just swallowed it. the klamath's far-northern mouth was a poor affair, useless for commercial purposes. but a great empire had been opened and an enormously serviceable harbor had been added to california's assets. it aided mining and created immense lumber interests. strange as it may seem, humboldt bay was not discovered at this time. some years ago a searcher of the archives of far-off st. petersburg found unquestionable proof that the discovery was made in , and not in - . early in the nineteenth century the russian-american company was all-powerful and especially active in the fur trade. it engaged an american captain, jonathan winship, who commanded an american crew on the ship "ocean." the outfit, accompanied by a hundred aleut indians, with fifty-two small boats, was sent from alaska down the california coast in pursuit of seals. they anchored at trinidad and spread out for the capture of sea-otter. eighteen miles south they sighted a bay and finally found the obscure entrance. they entered with a boat and then followed with the ship, which anchored nearly opposite the location of eureka. they found fifteen feet of water on the bar. from the large number of indians living on its shores, they called it the bay of the indians. the entrance they named resanof. winship made a detailed sketch of the bay and its surroundings, locating the indian villages and the small streams that enter the bay. it was sent to st. petersburg and entered on a russian map. the spaniards seem never to have known anything of it, and the americans evidently considered the incident of no importance. humboldt as a community developed slowly. for five years its real resources were neglected. [illustration: humboldt bay--from russian atlas the hidden harbor--thrice discovered winship, . gregg, . ottinger, .] it was merely the shipping point from which the mines of the trinity and klamath rivers were supplied by mule trains. gradually agriculture was developed, and from lumber was king. it is now a great domain. the county is a little less than three times the size of the state of rhode island, and its wealth of resources and its rugged and alluring beauty are still gaining in recognition. its unique glory is the world-famous redwood belt. for its entire length, one hundred and six miles of coast line, and of an average depth of eight miles, extends the marvelous grove. originally it comprised , acres. for more than sixty years it has been mercilessly depleted, yet it is claimed that the supply will not be exhausted for two hundred years. there is nothing on the face of the earth to compare with this stand of superb timber. trees reach two hundred and fifty feet in height, thirty feet in diameter, and a weight of , , pounds. through countless centuries these noble specimens have stood, majestic, serene, reserved for man's use and delight. in these later years fate has numbered their days, but let us firmly withstand their utter demolition. it is beyond conception that all these monuments to nature's power and beauty should be sacrificed. we must preserve accessible groves for the inspiration and joy of those who will take our places. the coast highway following down one of the forks of the eel river passes through the magnificent redwood belt and affords a wonderful view of these superb trees. efforts are now being made to preserve the trees bordering the highway, that one of the most attractive features of california's scenic beauty may be preserved for all time. california has nothing more impressive to offer than these majestic trees, and they are an asset she cannot afford to lose. chapter iii nine years north uniontown (now arcata) had enjoyed the early lead among the humboldt bay towns. the first consideration had been the facility in supplying the mines on the trinity and the klamath. all goods were transported by pack-trains, and the trails over the mountains were nearer the head of the bay. but soon lumber became the leading industry, and the mills were at eureka on deep water at the center of the bay, making that the natural shipping point. it grew rapidly, outstripping its rival, and also capturing the county-seat. arcata struggled valiantly, but it was useless. her geographical position was against her. in an election she shamelessly stuffed the ballot box, but eureka went to the legislature and won her point. arcata had the most beautiful location and its people were very ambitious. in fruitless effort to sustain its lead, the town had built a pier almost two miles in length to a slough navigable to ocean steamers. a single horse drew a flat car carrying passengers and freight. it was the nearest approach to a railroad in the state of california at the time of our arrival on that lovely morning in . we disembarked from the ancient craft and were soon leisurely pursuing our way toward the enterprising town at the other end of the track. it seemed that we were met by the entire population; for the arrival of the steamer with mail and passengers was the exciting event of the month. the station was near the southwest corner of the plaza, which we crossed diagonally to the post-office, housed in the building that had been my father's store until he sold out the year before, when he was elected to the assembly. murdock's hall was in the second story, and a little way north stood a zinc house that was to be our home. it had been shipped first to san francisco and then to humboldt. its plan and architecture were the acme of simplicity. there were three rooms tandem, each with a door in the exact middle, so that if all the doors were open a bullet would be unimpeded in passing through. to add to the social atmosphere, a front porch, open at both ends, extended across the whole front. a horseman could, and in fact often did, ride across it. my brother and i occupied a chamber over the post-office, and he became adept in going to sleep on the parlor sofa every night and later going to bed in the store without waking, dodging all obstructing objects and undressing while sound asleep. we were quite comfortable in this joke of a house. but we had no pump; all the water we used i brought from a spring in the edge of the woods, the one found by the gregg party on the night of christmas, . the first time i visited it and dipped my bucket in the sunken barrel that protected it i had a shock. before leaving san francisco, being a sentimental youth and knowing little of what humboldt offered, i bought two pots of fragrant flowers--heliotrope and a musk-plant--bringing them on the steamer with no little difficulty. as i dipped into the barrel i noticed that it was surrounded by a solid mass of musk-plants growing wild. the misapprehension was at least no greater than that which prompted some full-grown man to ship a zinc house to the one spot in the world where the most readily splitting lumber was plentiful. one of the sights shown to the newcomer was a two-story house built before the era of the sawmill. it was built of split lumber from a single redwood tree--and enough remained to fence the lot! within a stone's throw from the musk-plant spring was a standing redwood, with its heart burned out, in which thirteen men had slept one night, just to boast of it. later, in my time, a shingle-maker had occupied the tree all one winter, both as a residence and as a shop where he made shingles for the trade. we had a very pleasant home and were comfortable and happy. we had a horse, cows, rabbits, and pigeons. our garden furnished berries and vegetables in plenty. the indians sold fish, and i provided at first rabbits and then ducks and geese. one delicious addition to our table was novel to us. as a part of the redwood's undergrowth was a tall bush that in its season yielded a luscious and enormous berry called the salmon-berry. it was much like a raspberry, generally salmon in color, very juicy and delicate, approximating an inch and a half in diameter. armed with a long pole, a short section of a butt limb forming a sort of shepherd's crook, i would pull down the heavily laden branches and after a few moments in the edge of the woods would be provided with a dessert fit for any queen, and so appropriate for my mother. california in those early days seemed wholly dependent on the foreign markets. flour came from chile, "haxall" being the common brand; cheese from holland and switzerland; cordials, sardines, and prunes from france; ale and porter from england; olives from spain; whiskey from scotland. boston supplied us with crackers, philadelphia sent us boots, and new orleans furnished us with sugar and molasses. the stores that supplied the mines carried almost everything--provisions, clothing, dry goods, and certainly wet goods. at every store there was found an open barrel of whiskey, with a convenient glass sampler that would yield through the bunghole a fair-sized drink to test the quality. one day i went into a store where a clever chinaman was employed. he had printed numerous placards announcing the stock. i noticed a fresh one that seemed incongruous. it read, "codfish and cologne water." i said, "what's the idea?" he smilingly replied, "you see its place? i hang it over the whiskey-barrel. some time man come to steal a drink. i no see him; he read sign, he laugh, i hear him, i see him." there was no school in the town when we came. it troubled my mother that my brother and sister must be without lessons. several other small children were deprived of opportunity. in the emergency we cleaned out a room in the store, formerly occupied by a county officer, and i organized a very primary school. i was almost fifteen, but the children were good and manageable. i did not have very many, and fortunately i was not called upon to teach very long. there came to town a clever man, robert desty. he wanted to teach. there was no school building, but he built one all by his own hands. he suggested that i give up my school and become a pupil of his. i was very glad to do it. he was a good and ingenious teacher. i enjoyed his lessons about six months, and then felt i must help my father. my stopping was the only graduation in my experience. my father was an inveterate trader, and the year after our coming he joined with another venturer in buying the standing crop of wheat in hoopa valley, on the trinity river. i went up to help in the harvesting, being charged with the weighing of the sacked grain. it was a fine experience for an innocent yankee boy. we lived out of doors, following the threshers from farm to farm, eating under an oak tree and sleeping on the fragrant straw-piles. i was also the butt of about the wildest lot of jokers ever assembled. they were good-natured, but it was their concerted effort to see how much i could stand in the way of highly flavored stories at mealtime. it was fun for them, besides they felt it would be a service to knock out some of the boston "sissiness." i do not doubt it was. they never quite drove me away from the table. in the meantime i had a great good time. it was a very beautiful spot and all was new and strange. there were many indians, and they were interesting. they lived in rancherias of puncheons along the river. each group of dwellings had a musical name. one village was called matiltin, another savanalta. the children swam like so many ducks, and each village had its sweathouse from which every adult, to keep in health and condition, would plunge into the swiftly flowing river. they lived on salmon, fresh or dried, and on grass-seed cakes cooked on heated stones. they were handsome specimens physically and were good workers. the river was not bridged, but it was not deep and canoes were plenty. if none were seen on the side which you chanced to find yourself, you had only to call, "wanus, matil!" (come, boat!) and one would come. if in a hurry, "holish!" would expedite the service. the indian language was fascinating and musical. "iaquay" was the word of friendly greeting. "aliquor" was indian, "waugee" was white man, "chick" was the general word for money. when "waugee-chick" was mentioned, it meant gold or silver; if "aliquor-chick," reference was made to the spiral quill-like shells which served as their currency, their value increasing rapidly by the length. [footnote: in the hawaiian islands short shells of this variety are strung for beads, but have little value.] there are frequent combined words. "hutla" is night, "wha" is the sun; "hutla-wha" is the moon--the night-sun. if an indian wishes to ask where you are going, he will say, "ta hunt tow ingya?" "teena scoia" is very good. "skeena" is too small. "semastolon" is a young woman; if she is considered beautiful, "clane nuquum" describes her. the indians were very friendly and hospitable. if i wanted an account-book that was on the other side of the river, they would not bother for a canoe, but swim over with it, using-one hand and holding the book high in the air. i found they had settled habits and usages that seemed peculiar to them. if one of their number died, they did not like it referred to; they wished for no condolence. "indian die, indian no talk," was their expression. it was a wonder to me that in a valley connected with civilization by only a trail there should be found mccormick's reapers and pitt's threshers. parts too large for a mule's pack had been cut in two and afterwards reunited. by some dint of ingenuity even a millstone had been hauled over the roadless mountains. the wheat we harvested was ground at the hoopa mill and the flour was shipped to the trinity and klamath mines. all the week we harvested vigorously, and on sunday we devoted most of the day to visiting the watermelon patches and sampling the product. of course, we spent a portion of the day in washing our few clothes, usually swimming and splashing in the river until they were dry. the valley was long and narrow, with mountains on both sides so high that the day was materially shortened in the morning and at night. the tardy sun was ardent when he came, but disturbed us little. the nights were blissful--beds so soft and sweet and a canopy so beautiful! in the morning we awoke to the tender call of cooing doves, and very soon lined up for breakfast in the perfectly ventilated out-of-doors. happy days they were! wise and genial captain snyder, sonnichsen, the patient cook, jim brock, happy tormentor--how clearly they revisit the glimpses of the moon! returning to uniontown, i resumed my placid, busy life, helping in the garden, around the house, and in the post-office. my father was wise in his treatment. boylike i would say, "father, what shall i do?" he would answer, "look around and find out. i'll not always be here to tell you." thrown on my own resources, i had no trouble in finding enough to do, and i was sufficiently normal and indolent to be in no danger of finding too much. the post-office is a harborer of secrets and romance. the postmaster and his assistants alone know "who's who." a character of a packer, tall, straight, and bearded, always called joe the marine, would steal in and call for comely letters addressed to james ashhurst, esq. robert desty was found to be mons. robert d'esti mauville. a blacksmith whose letters were commonly addressed to c.e. bigelow was found entitled to one inscribed c.e.d.l.b. bigelow. asked what his full name was, he replied, "charles edward decatur la fitte butterfield bigelow." and, mind you, he was a _blacksmith_! his christening entitled him to it all, but he felt that all he could afford was what he commonly used. phonetics have a distinct value. uncertain of spelling, one can fall back on remembered sound. i found a letter addressed to "sanerzay." i had no difficulty in determining that san jose was intended. hard labor was suggested when someone wrote "youchiyer." the letter found its resting-place in ukiah. among my miscellaneous occupations was the pasturage of mules about to start on the return trip to the mines. we had a farm and logging-claim on the outskirts of town which afforded a good farewell bite of grass, and at night i would turn loose twenty to forty mules and their beloved bell-mare to feed and fight mosquitoes. early the next morning i would saddle my charger and go and bring them to the packing corral. never shall i forget a surprise given me one morning. i had a tall, awkward mare, and was loping over the field looking for my charges. an innocent little rabbit scuttled across kate's path and she stopped in her tracks as her feet landed. i was gazing for the mule train and i did not stop. i sailed over her head, still grasping the bridle reins, which, attached to the bit, i also had to overleap, so that the next moment i found myself standing erect with the reins between my legs, holding on to a horse behind me still standing in her arrested tracks. remounting, i soon found the frisky mules and started them toward misery. driven into the corral where their freight had been divided into packs of from one hundred to one hundred and fifty pounds, they were one by one saddled, cinched, and packed. a small mule would seem to be unequal to carrying two side-packs, each consisting of three fifty-pound sacks of flour, and perhaps a case of boots for a top-pack. but protests of groans and grunts would be unavailing. two swarthy mexicans, by dint of cleverly thrown ropes and the "diamond hitch," would soon have in place all that the traffic would bear, and the small indian boy on the mother of the train, bearing a tinkling bell, would lead them on their way to salmon river or to orleans bar. another frequent duty was the preparation of the hall for some public function. it might be a dance, a political meeting, or some theatrical performance. different treatment would be required, but all would include cleaning and lighting. at a dance it was floor-scrubbing, filling the camphene lamps, and making up beds for the babies to be later deposited by their dancing mothers. very likely i would tend door and later join in the dance, which commonly continued until morning. politics interested me. in the frémont campaign of my father was one of four republicans in the county, and was by no means popular. he lived to see humboldt county record a six hundred majority for the republican ticket. some of our local legislative candidates surprised and inspired me by their eloquence and unexpected knowledge and ability. it was good to find that men read and thought, even when they lived in the woods and had little encouragement. occasionally we had quite good theatrical performances. very early i recall a thespian named thoman, who was supported by a julia pelby. they vastly pleased an uncritical audience. i was doorkeeper, notwithstanding that thoman doubted if i was "hefty" enough. "little lotta" crabtree was charming. her mother traveled with her. between performances she played with her dolls. she danced gracefully and sang fascinatingly such songs as "i'm the covey what sings." another prime favorite was joe murphy, irish comedian and violinist, pleasing in both roles. i remember a singing comedian who bewailed his sad estate: "for now i have nothing but rags to my back, my boots scarce cover my toes, while my pants are patched with an old flour-sack, to jibe with the rest of my clo'es." the singing-school was pleasure-yielding, its greatest joy being incidental. when i could cut ahead of a chum taking a girl home and shamelessly trip him up with a stretched rope and get back to the drugstore and be curled up in the woodbox when he reached his final destination, i am afraid i took unholy joy. not long after coming we started a public library. mother and i covered all the books, this being considered an economical necessity. somewhat later arcata formed a debating society that was really a helpful influence. it engaged quite a wide range of membership, and we discussed almost everything. some of our members were fluent of speech from long participation in methodist experience meetings. others were self-trained even to pronunciation. one man of good mind, always said "here_dit_ary." he had read french history and often referred to the _gridironists_ of france. i have an idea he was the original of the man whom bret harte made refer to the greek hero as "old ashheels." our meetings were open, and among the visitors i recall a clerk of a commander in the indian war. he afterwards became lieutenant-governor of the state, and later a senator from nevada--john p. jones. an especial pleasure were the thoroughness and zest with which we celebrated the fourth of july. the grown-ups did well in the daylight hours, when the procession, the oration, and the reading of the declaration were in order; but with the shades of night the fireworks would have been inadequate but for the activity of the boys. the town was built around a handsome plaza, probably copied from sonoma as an incident of the wood sojourn. on the highest point in the center a fine flagstaff one hundred and twenty feet high was proudly crowned by a liberty-cap. this elevated plateau was the field of our display. on a spot not too near the flagstaff we planned for a spectacular center of flame. during the day we gathered material for an enormous bonfire. huge casks formed the base and inflammable material of all kinds reached high in the air. at dark we fired the pile. but the chief interest was centered in hundreds of balls of twine, soaked in camphene, which we lighted and threw rapidly from hand to hand all over the plaza. we could not hold on to them long, but we didn't need to. they came flying from every direction and were caught from the ground and sent back before they had a chance to burn. the noise and excitement can be easily imagined. blackened and weary boys kept it up till the bonfire was out and the balls had grown too small to pick up. nothing interfered with our celebrations. when the indians were "bad" we forsook the redwoods and built our speaker's stand and lunch tables and benches out in the open beyond firing distance. our garden was quite creditable. vegetables were plentiful and my flower-beds, though formal, were pleasing. stock-raising was very interesting. one year i had the satisfaction of breaking three heifers and raising their calves. my brother showed more enterprise, for he induced a plump young mother of the herd to allow him to ride her when he drove the rest to pasture. upon our arrival in uniontown we found the only church was the methodist. we at once attended, and i joined the sunday-school. my teacher was a periodically reformed boatman. when he fell from grace he was taken in hand by the sons of temperance, which i had also joined. "morning star division, no. ," was never short of material to work on. my first editorial experience was on its spicy little written journal. i went through the chairs and became "worthy patriarch" while still a boy. the church was mostly served by first-termers, not especially inspiring. i recall one good man who seemed to have no other qualification for the office. he frankly admitted that he had worked in a mill and in a lumber-yard, and said he liked preaching "better than anything he'd ever been at." he was very sincere and honest. he had a uniform lead in prayer: "o lord, we thank thee that it is as well with us as what it is." the sentiment was admirable, but somehow the manner grated. when the presiding elder came around we had a relief. he was wide-awake and witty. one night he read the passage of scripture where they all began with one accord to make excuses. one said: "i have married a wife and cannot come." the elder, looking up, said, "why didn't the pesky fool bring her with him?" in the process of time the presbyterians started a church, and i went there; swept out, trimmed the lamps, and sang in the choir. the preacher was an educated man, and out of the pulpit was kind and reasonable; but he persisted that "good deeds were but as filthy rags." i didn't believe it and i didn't like it. the staid pastor had but little recreation, and i am afraid i was always glad that ulrica schumacher, the frisky sister of the gunsmith, almost always beat him at chess. he was succeeded by a man i loved, and i wonder i did not join his church. we were good friends and used to go out trout-fishing together. he was a delightful man, but when he was in the pulpit he shrank and shriveled. the danger of presbyterianism passed when he expressed his doubt whether it would be best for my mother to partake of communion, as she had all her life in the unitarian church. she was willing, but waited his approval. my mother was the most saintly of women, absolutely unselfish and self-sacrificing, and it shocked me that any belief or lack of belief should exclude her from a christian communion. when my father, in one of his numerous trades, bought out the only tinshop and put me in charge he changed my life and endangered my disposition. the tinsmith left the county and i was left with the tools and the material, the only tinsmith in humboldt county. how i struggled and bungled! i could make stovepipe by the mile, but it was a long time before i could double-seam a copper bottom onto a tin wash-boiler. i lived to construct quite a decent traveling oilcan for a eureka sawmill, but such triumphs come through mental anguish and burned fingers. no doubt the experience extended my desultory education. the taking over of the tinshop was doubly disappointing, since i really wanted to go into the office of the _northern californian_ and become a printer and journalist. that job i turned over to bret harte, who was clever and cultivated, but had not yet "caught on." leon chevret, the french hotelkeeper, said of him to a lawyer of his acquaintance, "bret harte, he have the napoleonic nose, the nose of genius; also, like many of you professional men, his debts trouble him very little." there were many interesting characters among the residents of the town and county. at times there came to play the violin at our dances one seth kinman, a buckskin-clad hunter. he became nationally famous when he fashioned and presented elkhorn chairs to buchanan and several succeeding presidents. they were ingenious and beautiful, and he himself was most picturesque. one of our originals was a shiftless and merry iowan to whose name was added by courtesy the prefix "dr." he had a small farm in the outskirts. gates hung from a single hinge and nothing was kept in repair. he preferred to use his time in persuading nature to joke. a single cucumber grown into a glass bottle till it could not get out was worth more than a salable crop, and a single cock whose comb had grown around an inserted pullet breastbone, until he seemed the precursor of a new breed of horned roosters, was better than much poultry. he reached his highest fame in the cure of his afflicted wife. she languished in bed and he diagnosed her illness as resulting from the fact that she was "hidebound." his house he had never had time to complete. the rafters were unobstructed by ceiling, so she was favorably situated for treatment. he fixed a lasso under her arms, threw the end around a rafter, and proceeded to loosen her refractory hide. one of our leading merchants was a deacon in the methodist church and so enjoyed the patronage of his brother parishioners. one of them came in one day and asked the paying price of eggs. the deacon told him "sixty cents a dozen." "what are sail-needles?" "five cents apiece." the brother produced an egg and proposed a swap. it was smilingly accepted and the egg added to the pile of stock. the brother lingered and finally drawled, "deacon, it's customary, isn't it, to _treat_ a buyer?" "it is; what will you take?" laughingly replied the deacon. "sherry is nice." the deacon poured out the sherry and handed it to his customer, who hesitated and timidly remarked that sherry was improved by a raw egg. the amused deacon turned around and took from the egg-pile the identical one he had received. as the brother broke it into his glass he noticed it had an extra yolk. after enjoying his drink, he handed back the empty glass and said: "deacon, that egg had a double yolk; don't you think you ought to give me another sail-needle?" when thomas starr king was electrifying the state in support of the sanitary commission (the red cross of the civil war), arcata caught the fever and in november, , held a great meeting at the presbyterian church. our leading ministers and lawyers appealed with power and surprising subscriptions followed. mr. coddington, our wealthiest citizen, started the list with three hundred dollars and ten dollars a month during the war. others followed, giving according to their ability. one man gave for himself, as well as for his wife and all his children. on taking his seat and speaking to his wife, he jumped up and added one dollar for the new baby that he had forgotten. when money gave out other belongings were sacrificed. one man gave twenty-five bushels of wheat, another ten cords of wood, another his saddle, another a gun. a notary gave twenty dollars in fees. a cattleman brought down the house when he said, "i have no money, but i will give a cow, and a calf a month as long as the war lasts." the following day it was my joy as secretary to auction off the merchandise. when all was forwarded to san francisco we were told we had won first honors, averaging over twenty-five dollars for each voter in the town. one interesting circumstance was the consignment to me of the first shipments of two novelties that afterward became very common. the discovery of coal-oil and the utilization of kerosene for lighting date back to about . the first coal-oil lamps that came to humboldt were sent to me for display and introduction. likewise, about , a grover & baker sewing-machine was sent up for me to exhibit. by way of showing its capabilities, i sewed the necessary number of yard-widths of the length of murdock's hall to make a new ceiling, of which it chanced to stand in need. humboldt county was an isolated community. sea steamers were both infrequent and uncertain, with ten days or two weeks and more between arrivals. there were no roads to the interior, but there were trails, and they were often threatened by treacherous indians. the indians living near us on mad river were peaceful, but the mountain indians were dangerous, and we never knew when we were really safe. in arcata we had one stone building, a store, and sometimes the frightened would resort to it at night. in times of peace, settlers lived on mad river, on redwood creek, and on the bald hills, where they herded their cattle. one by one they were killed or driven in until there was not a white person living between the bay and trinity river. mail carriers were shot down, and the young men of arcata were often called upon at night to nurse the wounded. we also organized a military company, and a night duty was drilling our men on the plaza or up past the gruesome graveyard. my command was never called out for service, but i had some fortunate escapes from being waylaid. i walked around the bay one morning; a few hours later a man was ambushed on the road. on one occasion i narrowly escaped participation in warfare. in august, , there had been outrages by daring indian bands, killing unprotected men close to town. once a few of us followed the tracks of a party and traced the marauders across mad river and toward a small prairie known to our leader, ousley the saddler. as we passed along a small road he caught the sign. a whiff of a shred of cotton cloth caught on a bush denoted a smoky native. a crushed fern, still moist, told him they had lately passed. at his direction we took to the woods and crawled quietly toward the near-by prairie. our orders were to wait the signal. if the band we expected to find was not too large, we should be given the word to attack. if there were too many for us, we should back out and go to town for help. we soon heard them plainly as they made camp. we found about three times our number, and we retired very quietly and made for the nearest farmhouse that had a team. in town many were anxious to volunteer. my mother did not want me to go, and i must confess i was in full accord with her point of view. i therefore served as commissary, collecting and preparing quantities of bread, bacon, and cheese for a breakfast and distributing a packed bag to each soldier. the attack at daylight resulted in one death to our command and a number to the indians. it was followed up, and a few days later the band was almost annihilated. the plunder recovered proved them guilty of many late attacks. this was toward the end of the indian war that had for so many years been disastrous to the community, and which in many of its aspects was deeply pathetic. originally the indian population was large. the coast indians were spoken of as diggers, and inferior in character. they were generally peaceful and friendly while the mountain dwellers were inclined to hostility. as a whole they did not represent a very high type of humanity, and all seemed to take to the vices rather than to the virtues of the white race, which was by no means represented at its best. a few unprincipled whites were always ready to stir up trouble and the indians were treacherous and when antagonized they killed the innocent rather than the guilty, for they were cowards and took the fewest possible chances. i have known an indian hater who seemed to think the only good indian was a dead one go unmolested through an entire campaign, while a friendly old man was shot from behind while milking his cow. the town was near the edge of the woods and no one was secure. the fine character whom we greatly respected,--the debater of original pronunciation,--who had never wronged a human being of any race, was shot down from the woods quite near the plaza. the regular army was useless in protection or punishment. their regulations and methods did not fit. they made fine plans, but they failed to work. they would locate the enemy and detail detachments to move from various points to surround and capture the foe, but when they got there the bushes were bare. finally battalions of mountaineers were organized among men who knew indian ways and were their equals in cunning. they soon satisfied the hostiles that they would be better off on the reservations that were provided and the war was at an end. it was to the credit of humboldt county that in the final settlement of the contest the rights of the indians were quite fairly considered and the reservations set aside for their residence were of valuable land well situated and fitted for the purpose. hoopa valley, on the trinity, was purchased from its settlers and constituted a reservation protected by fort gaston and a garrison. it was my pleasure to revisit the scene of my boyhood experience and assist in the transfer largely conducted through the leadership of austin wiley, the editor and owner of the _humboldt times_. he was subsequently made superintendent of indian affairs for the state of california, and as his clerk i helped in the administration. when i visited the smith river reservation, to which the bay indians had been sent, i was hailed with joy as "major's pappoose," whom they remembered of old. (my father was always called major.) among the warm friendships formed at this time two stand out. two boys of about my age were to achieve brilliant careers. very early i became intimate with alexander brizard, a clerk in the store of f. roskill, a russian. he was my companion in the adventure of following the indian marauders, and my associate in the church choir and the debating club. in he joined a fellow clerk in establishing a modest business concern, the firm being known as a. brizard & co.; the unnamed partner was james alexander campbell van rossum, a hollander. they prospered amazingly. van rossum died early, brizard became the leading merchant of northern california, and his sons still continue the chain of stores that grew from the small beginning. he was a strong, fine character. the other boy, very near to me, was john j. dehaven, who was first a printer, then a lawyer, then a state senator, then a congressman, and finally a u.s. district judge. he was very able and distinguished himself in every place in life to which he advanced. in , when my father had become superintendent of a nevada county gold mine, he left me to run the post-office, cut the timothy hay, and manage a logging-camp. it was wartime and i had a longing to enlist. one day i received a letter from him, and as i tore it open a startling sentence caught my eye, "your commission will come by the next steamer." i caught my breath and south particulars. it informed me that senator sargent, his close friend, had secured for me the appointment of register of the land office at humboldt. [illustration: presidential commission as registrar of the land office at humboldt, california] there had been a vacancy for some time, resulting from reduction in the pay from $ in gold to $ in greenbacks, together with commissions, which were few. my father thought it would be good experience for me and advised my acceptance. and so at twenty-two i became a federal officeholder. the commission from president lincoln is the most treasured feature of the incident. i learned some valuable lessons. the honor was great and the position was responsible, but i soon felt constrained to resign, to accept a place as quartermaster's clerk, where i had more pay with more work. i was stationed at fort humboldt, where grant spent a few uncomfortable months in . it was an experience very different from any i had ever had. army accounting is wholly unlike civilian, books being dispensed with and accounts of all kinds being made in quadruplicate. i shed quantities of red ink and made my monthly papers appear well. i had no responsibility and obeyed orders, but i could not be wholly comfortable when i covered in all the grain that every mule was entitled to when i had judicial knowledge that he had been turned out to grass. nor could i believe that the full amount of cordwood allowed officers was consumed when fires were infrequent. i was only sure that it was paid for. aside from these ethical informalities the life was socially agreeable, and there is glamour in the military. my period of service was not very long. my father had settled in san francisco and the family had joined him. i was lonely, and when my friend, the new superintendent of indian affairs, offered me employment i forsook fort humboldt and took up my residence in the city by the golden gate. chapter iv the real bret harte before taking up the events related to my residence in san francisco i wish to give my testimony concerning bret harte, perhaps the most interesting character associated with my sojourn in humboldt. it was before he was known to fame that i knew him; but i am able to correct some errors that have been made and i believe can contribute to a more just estimate of him as a literary artist and a man. he has been misjudged as to character. he was a remarkable personality, who interpreted an era of unusual interest, vital and picturesque, with a result unparalleled in literary annals. when he died in england in the english papers paid him very high tribute. the _london spectator_ said of him: "no writer of the present day has struck so powerful and original a note as he has sounded." this is a very unusual acknowledgment from a source not given to the superlative, and fills us with wonder as to what manner of man and what sort of training had led to it. causes are not easily determined, but they exist and function. accidents rarely if ever happen. heredity and experience very largely account for results. what is their testimony in this particular case? francis bret harte was born in albany, new york, february , . his father was a highly educated instructor in greek, of english-jewish descent. his mother was an ostrander, a cultivated and fine character of dutch descent. his grandmother on his father's side was catherine brett. he had an elder brother and two younger sisters. the boys were voracious readers and began shakespeare when six, adding dickens at seven. frank developed an early sense of humor, burlesquing the baldness of his primer and mimicking the recitations of some of his fellow pupils when he entered school. he was studious and very soon began to write. at eleven he sent a poem to a weekly paper and was a little proud when he showed it to the family in print. when they heartlessly pointed out its flaws he was less hilarious. his father died when he was very young and he owed his training to his mother. he left school at thirteen and was first a lawyer's clerk and later found work in a counting-room. he was self-supporting at sixteen. in his mother married colonel andrew williams, an early mayor of oakland, and removed to california. the following year bret and his younger sister, margaret, followed her, arriving in oakland in march, . he found the new home pleasant. the relations with his cultivated stepfather were congenial and cordial, but he suffered the fate of most untrained boys. he was fairly well educated, but he had no trade or profession. he was bright and quick, but remunerative employment was not readily found, and he did not relish a clerkship. for a time he was given a place in a drugstore. some of his early experiences are embalmed in "how reuben allen saw life" and in "bohemian days." in the latter he says: "i had been there a week,--an idle week, spent in listless outlook for employment, a full week, in my eager absorption of the strange life around me and a photographic sensitiveness to certain scenes and incidents of those days, which stand out in my memory today as freshly as on the day they impressed me." it was a satisfaction that he found some congenial work. he wrote for _putnam's_ and the _knickerbocker_. in , when he was twenty, he went to alamo, in the san ramon valley, as tutor in an interesting family. he found the experience agreeable and valuable. a letter to his sister margaret, written soon after his arrival, shows a delightful relation between them and warm affection on his part. it tells in a felicitous manner of the place, the people, and his experiences. he had been to a camp-meeting and was struck with the quaint, old-fashioned garb of the girls, seeming to make the ugly ones uglier and the pretty ones prettier. it was raining when he wrote and he felt depressed, but he sent his love in the form of a charming bit of verse wherein a tear was borne with the flowing water to testify to his tender regard for his "peerless sister." this letter, too personal for publication, his sister lately read to me, and it was a revelation of the matchless style so early acquired. in form it seemed perfect--not a superfluous or an ill-chosen word. every sentence showed rhythm and balance, flowing easily and pleasantly from beginning to end, leaving an impression of beauty and harmony, and testifying to a kindly, gentle nature, with an admiring regard for his seventeen-year-old sister. from alamo he seems to have gone directly to tuolumne county, and it must have been late in . his delightful sketch "how i went to the mines" is surely autobiographical. he says: "i had been two years in california before i ever thought of going to the mines, and my initiation into the vocation of gold-digging was partly compulsory." he refers to "the little pioneer settlement school, of which i was the somewhat youthful, and, i fear, not over-competent master." what he did after the school-teaching episode he does not record. he was a stage messenger at one time. how long he remained in and around the mines is not definitely known, but it seems clear that in less than a year of experience and observation he absorbed the life and local color so thoroughly that he was able to use it with almost undiminished freshness for forty years. it was early in that bret harte came to humboldt county to visit his sister margaret, and for a brief time and to a limited extent our lives touched. he was twenty-one and i was sixteen, so there was little intimacy, but he interested and attracted me as a new type of manhood. he bore the marks of good breeding, education, and refinement. he was quiet of manner, kindly but not demonstrative, with a certain reserve and aloofness. he was of medium height, rather slight of figure, with strongly marked features and an aquiline nose. he seemed clever rather than forcible, and presented a pathetic figure as of one who had gained no foothold on success. he had a very pleasant voice and a modest manner, and never talked of himself. he was always the gentleman, exemplary as to habits, courteous and good-natured, but a trifle aristocratic in bearing. he was dressed in good taste, but was evidently in need of income. he was willing to do anything, but with little ability to help himself. he was simply untrained for doing anything that needed doing in that community. he found occasional work in the drugstore, and for a time he had a small private school. his surviving pupils speak warmly of his sympathy and kindness. he had little mechanical ability. i recall seeing him try to build a fence one morning. he bravely dug postholes, but they were pretty poor, and the completed fence was not so very straight. he was genial and uncomplaining, and he made a few good friends. he was an agreeable guest, and at our house was fond of a game of whist. he was often facetious, with a neatness that was characteristic. one day, on a stroll, we passed a very primitive new house that was wholly destitute of all ornaments or trimming, even without eaves. it seemed modeled after a packing-box. "that," he remarked, "must be of the _iowan_ order of architecture." he was given to teasing, and could be a little malicious. a proud and ambitious schoolteacher had married a well-off but decidedly cockney englishman, whose aspirates could be relied upon to do the expected. soon after the wedding, harte called and cleverly steered the conversation on to music and songs, finally expressing great fondness for "kathleen mavourneen," but professing to have forgotten the words. the bridegroom swallowed the bait with avidity. "why," said he, "they begin with 'the 'orn of the 'unter is 'eard on the 'ill.'" f.b. stroked his dundrearies while his dark eyes twinkled. the bride's eyes flashed ominously, but there seemed to be nothing she felt like saying. in october, , he removed to the liscom ranch in the suburbs at the head of the bay and became the tutor of two boys, fourteen and thirteen years of age. he had a forenoon session of school and in the afternoon enjoyed hunting on the adjacent marshes. for his convenience in keeping run of the lessons given, he kept a brief diary, and it has lately been found. it is of interest both in the little he records and from the significant omissions. it reveals a very simple life of a clever, kindly, clean young man who did his work, enjoyed his outdoor recreation, read a few good books, and generally "retired at / p.m." he records sending letters to various publications. on a certain day he wrote the first lines of "dolores." a few days later he finished it, and mailed it to the _knickerbocker_. he wrote and rewrote a story, "what happened at mendocino." what happened to the story does not appear. he went to church generally, and some of the sermons were good and others "vapid and trite." once in a while he goes to a dance, but not to his great satisfaction. he didn't dance particularly well. he tells of a christmas dinner that he helped his sister to prepare. something made him dissatisfied with himself and he bewails his melancholy and gloomy forebodings that unfit him for rational enjoyment and cause him to be a spectacle for "gods and men." he adds: "thermometer of my spirit on christmas day, , a.m., °; temperature, a.m., °; p.m., °; p.m., ° and falling rapidly; p.m., at zero; a.m., ° below." his entries were brief and practical. he did not write to express his feelings. at the close of he indulged in a brief retrospect, and an emphatic statement of his determination for the future. after referring to the fact that he was a tutor at a salary of twenty-five dollars a month and board, and that a year before he was unemployed, at the close he writes: "in these three hundred and sixty-five days i have again put forth a feeble essay toward fame and perhaps fortune. i have tried literature, albeit in a humble way. i have written some passable prose and it has been successfully published. the conviction is forced on me by observation, and not by vain enthusiasm, that i am fit for nothing else. perhaps i may succeed; if not, i can at least make the trial. therefore i consecrate this year, or as much as god may grant for my services, to honest, heartfelt, sincere labor and devotion to this occupation. god help me! may i succeed!" harte profited by his experience in tutoring my two boy friends, gaining local color quite unlike that of the sierra foothills. humboldt is also on the grand scale and its physical characteristics and its type of manhood were fresh and inspiring. his familiarity with the marsh and the sloughs is shown in "the man on the beach" and the "dedlow marsh stories," and this affords fine opportunity for judging of the part played by knowledge and by imagination in his literary work. his descriptions are photographic in their accuracy. the flight of a flock of sandpipers, the flowing tides, the white line of the bar at the mouth of the bay--all are exact. but the locations and relations irrelevant to the story are wholly ignored. the characters and happenings are purely imaginary. he is the artist using his experiences and his fancy as his colors, and the minimum of experience and small observation suffice. his perception of character is marvelous. he pictures the colonel, his daughters, the spruce lieutenant, and the irish deserter with such familiarity that the reader would think that he had spent most of his life in a garrison, and his ability to portray vividly life in the mines, where his actual experience was so very slight, is far better understood. many of the occurrences of those far-away days have faded from my mind, but one of them, of considerable significance to two lives, is quite clear. uniontown had been the county-seat, and there the _humboldt times_ was published; but eureka, across the bay, had outgrown her older sister and captured both the county-seat and the only paper in the county. in frantic effort to sustain her failing prestige uniontown projected a rival paper and the _northern californian_ was spoken into being. my father was a half owner, and i coveted the humble position of printer's devil. one journeyman could set the type, and on wednesday and saturday, respectively, run off on a hand-press the outside and the inside of the paper, but a boy or a low-priced man was needed to roll the forms and likewise to distribute the type. i looked upon it as the first rung on the ladder of journalism, and i was about to put my foot thereon when the pathetic figure of bret harte presented itself applying for the job, causing me to put my foot on my hopes instead. he seemed to want it and need it so much more than i did that i turned my hand to other pursuits, while he mounted the ladder with cheerful alacrity and skipped up several rungs, very promptly learning to set type and becoming a very acceptable assistant editor. in a community where popular heroes are apt to be loud and aggressive, the quiet man who thinks more than he talks is adjudged effeminate. harte was always modest, and boasting was foreign to his nature; so he was thought devoid of spirit and strength. but occasion brought out the unsuspected. there had been a long and trying indian war in and around humboldt. the feeling against the red men was very bitter. it culminated in a wanton and cowardly attack on a tribe of peaceful indians encamped on an island opposite eureka, and men, women, and children were ruthlessly killed. harte was temporarily in charge of the paper and he denounced the outrage in unmeasured terms. the better part of the community sustained him, but a violent minority resented his strictures and he was seriously threatened and in no little danger. happily he escaped, but the incident resulted in his return to san francisco. the massacre occurred on february , , which fixes the approximate time of harte's becoming identified with san francisco. his experience was of great advantage to him in that he had learned to do something for which there was a demand. he could not earn much as a compositor, but his wants were simple and he could earn something. he soon secured a place on the _golden era_, and it became the doorway to his career. he was soon transferred to the editorial department and contributed freely. for four years he continued on the _golden era_. these were years of growth and increasing accomplishment. he did good work and made good friends. among those whose interest he awakened were mrs. jessie benton frémont and thomas starr king. both befriended and encouraged him. in the critical days when california hung in the balance between the north and the south, and starr king, by his eloquence, fervor, and magnetism, seemed to turn the scale, bret harte did his part in support of the friend he loved. lincoln had called for a hundred thousand volunteers, and at a mass meeting harte contributed a noble poem, "the reveille," which thrillingly read by starr king brought the mighty audience to its feet with cheers for the union. he wrote many virile patriotic poems at this period. in march, , starr king, of the glowing heart and golden tongue, preacher, patriot, and hero, fell at his post, and san francisco mourned him and honored him as seldom falls to the lot of man. at his funeral the federal authorities ordered the firing of a salute from the forts in the harbor, an honor, so far as i know, never before accorded a private citizen. bret harte wrote a poem of rare beauty in expression of his profound grief and his heartfelt appreciation: relieving guard. came the relief. "what, sentry, ho! how passed the night through thy long waking?" "cold, cheerless, dark--as may befit the hour before the dawn is breaking." "no sight? no sound?" "no; nothing save the plover from the marshes calling, and in yon western sky, about an hour ago, a star was falling." "a star? there's nothing strange in that." "no, nothing; but, above the thicket, somehow it seemed to me that god somewhere had just relieved a picket." this is not only good poetry; it reveals deep and fine feeling. [illustration: francis bret harte] through starr king's interest, his parishioner robert b. swain, superintendent of the mint, had early in appointed harte as his private secretary, at a salary of two hundred dollars a month, with duties that allowed considerable leisure. this was especially convenient, as a year or so before he had married, and additional income was indispensable. in may, , harte left the _golden era_, joining charles henry webb and others in a new literary venture, the _californian_. it was a brilliant weekly. among the contributors were mark twain, charles warren stoddard, and prentice mulford. harte continued his delightful "condensed novels" and contributed poems, stories, sketches, and book reviews. "the society on the stanislaus," "john brown of gettysburg," and "the pliocene skull" belong to this period. in the "condensed novels" harte surpassed all parodists. with clever burlesque, there was both appreciation and subtle criticism. as chesterton says, "bret harte's humor was sympathetic and analytical. the wild, sky-breaking humor of america has its fine qualities, but it must in the nature of things be deficient in two qualities--reverence and sympathy--and these two qualities were knit into the closest texture of bret harte's humor." at this time harte lived a quiet domestic life. he wrote steadily. he loved to write, but he was also obliged to. literature is not an overgenerous paymaster, and with a growing family expenses tend to increase in a larger ratio than income. harte's sketches based on early experiences are interesting and amusing. his life in oakland was in many ways pleasant, but he evidently retained some memories that made him enjoy indulging in a sly dig many years after. he gives the pretended result of scientific investigation made in the far-off future as to the great earthquake that totally engulfed san francisco. the escape of oakland seemed inexplicable, but a celebrated german geologist ventured to explain the phenomenon by suggesting that "there are some things that the earth cannot swallow." my last recollection of harte, of a purely personal nature, was of an occurrence in , when he was dramatic critic of the _morning call_ at the time i was doing a little reporting on the same paper. it happened that a benefit was arranged for some charity. "nan, the good-for-nothing," was to be given by a number of amateurs. the _nan_ asked me to play _tom_, and i had insufficient firmness to decline. after the play, when my face was reasonably clean, i dropped into the _call_ office, yearning for a word of commendation from harte. i thought he knew that i had taken the part, but he would not give me the satisfaction of referring to it. finally i mentioned, casually like, that i was _tom_, whereat he feigned surprise, and remarked in his pleasant voice, "was that you? i thought they had sent to some theater and hired a supe." in july, , a. roman & co. launched the _overland monthly_, with harte as editor. he took up the work with eager interest. he named the child, planned its every feature, and chose his contributors. it was a handsome publication, modeled, in a way, on the _atlantic monthly,_ but with a flavor and a character all its own. the first number was attractive and readable, with articles of varied interest by mark twain, noah brooks, charles warren stoddard, william c. bartlett, t.h. rearden, ina coolbrith, and others--a brilliant galaxy for any period. harte contributed "san francisco from the sea." mark twain, long after, alluding to this period in his life, pays this characteristic acknowledgment: "bret harte trimmed and trained and schooled me patiently until he changed me from an awkward utterer of coarse grotesqueness to a writer of paragraphs and chapters that have found favor in the eyes of even some of the decentest people in the land." the first issue of the _overland_ was well received, but the second sounded a note heard round the world. the editor contributed a story--"the luck of roaring camp"--that was hailed as a new venture in literature. it was so revolutionary that it shocked an estimable proofreader, and she sounded the alarm. the publishers were timid, but the gentle editor was firm. when it was found that it must go in or he would go out, it went--and he stayed. when the conservative and dignified _atlantic_ wrote to the author soliciting something like it, the publishers were reassured. harte had struck ore. up to this time he had been prospecting. he had early found color and followed promising stringers. he had opened some fair pockets, but with the explosion of this blast he had laid bare the true vein, and the ore assayed well. it was high grade, and the fissure was broad. "the luck of roaring camp" was the first of a series of stories depicting the picturesque life of the early days which made california known the world over and gave it a romantic interest enjoyed by no other community. they were fresh and virile, original in treatment, with real men and women using a new vocabulary, with humor and pathos delightfully blended. they moved on a stage beautifully set, with a background of heroic grandeur. no wonder that california and bret harte became familiar household words. when one reflects on the fact that the exposure to the life depicted had occurred more than ten years before, from very brief experience, the wonder is incomprehensibly great. nothing less than genius can account for such a result. "tennessee's partner," "m'liss," "the outcasts of poker flat," and dozens more of these stories that became classics followed. the supply seemed exhaustless, and fresh welcome awaited every one. it was in september, , that harte in the make-up of the _overland_ found an awkward space too much for an ordinary poem. an associate suggested that he write something to fit the gap; but harte was not given to dashing off to order, nor to writing a given number of inches of poetry. he was not a literary mechanic, nor could he command his moods. however, he handed his friend a bundle of manuscript to see if there was anything that he thought would do, and very soon a neat draft was found bearing the title "on the sinfulness of ah sin as reported by truthful james." it was read with avidity and pronounced "the very thing." harte demurred. he didn't think very well of it. he was generally modest about his work and never quite satisfied. but he finally accepted the judgment of his friend and consented to run it. he changed the title to "later words from truthful james," but when the proof came substituted "plain language from truthful james." he made a number of other changes, as was his wont, for he was always painstaking and given to critical polishing. in some instances he changed an entire line or a phrase of two lines. the copy read: "till at last he led off the right bower, that nye had just hid on his knee." as changed on the proof it read: "till at last he put down a right bower, which the same nye had dealt unto me." it was a happy second thought that suggested the most quoted line in this famous poem. the fifth line of the seventh verse originally read: "or is civilization a failure?" on the margin of the proof-sheet he substituted the ringing line: "we are ruined by chinese cheap labor," --an immense improvement--the verse reading: "then i looked up at nye, and he gazed unto me, and he rose with a sigh, and said, 'can this be? we are ruined by chinese cheap labor!' and he went for that heathen chinee." the corrected proof, one of the treasures of the university of california, with which harte was for a time nominally connected, bears convincing testimony to the painstaking methods by which he sought the highest degree of literary perfection. this poem was not intended as a serious addition to contemporary verse. harte disclaimed any purpose whatever; but there seems just a touch of political satire. "the chinese must go" was becoming the popular political slogan, and he always enjoyed rowing against the tide. the poem greatly extended his name and fame. it was reprinted in _punch_, it was liberally quoted on the floors of congress, and it "caught on" everywhere. perhaps it is today the one thing by which harte is best known. one of the most amusing typographical errors on record occurred in the printing of this poem. in explanation of the manner of the duplicity of _ah sin, truthful james_ was made to say: "in his sleeves, which were long, he had twenty-one packs:" and that was the accepted reading for many years, in spite of the physical impossibility of concealing six hundred and ninety-three cards and one arm in even a chinaman's sleeve. the game they played was euchre, where bowers are supreme, and what harte wrote was "jacks," not "packs." probably the same pious proofreader who was shocked at the "luck" did not know the game, and, as the rhyme was perfect, let it slip. later editions corrected the error, though it is still often seen. harte gave nearly three years to the _overland_. his success had naturally brought him flattering offers, and the temptation to realize on his reputation seems to have been more than he could withstand. the _overland_ had become a valuable property, eventually passing into control of another publisher. the new owners were unable or unwilling to pay what he thought he must earn, and somewhat reluctantly he resigned the editorship and left the state of his adoption. harte, with his family, left san francisco in february, . they went first to chicago, where he confidently expected to be editor of a magazine to be called the _lakeside monthly_. he was invited to a dinner given by the projectors of the enterprise, at which a large-sized check was said to have been concealed beneath his plate; but for some unexplained reason he failed to attend the dinner and the magazine was given up. those who know the facts acquit him of all blame in the matter; but, in any event, his hopes were dashed, and he proceeded to the east disappointed and unsettled. soon after arriving at new york he visited boston, dining with the saturday club and visiting howells, then editor of the _atlantic_, at cambridge. he spent a pleasant week, meeting lowell, longfellow, and emerson. mrs. aldrich, in "crowding memories," gives a vivid picture of his charm and high spirits at this meeting of friends and celebrities. the boston atmosphere as a whole was not altogether delightful. he seemed constrained, but he did a fine stroke of business. james r. osgood & co. offered him ten thousand dollars for whatever he might write in a year, and he accepted the handsome retainer. it did not stimulate him to remarkable output. he wrote four stories, including "how santa claus came to simpson's bar," and five poems, including "concepcion de arguello." the offer was not renewed the following year. for seven years new york city was generally his winter home. some of his summers were spent in newport, and some in new jersey. in the former he wrote "a newport romance" and in the latter "thankful blossom." one summer he spent at cohasset, where he met lawrence barrett and stuart robson, writing "two men of sandy bar," produced in . "sue," his most successful play, was produced in new york and in london in . to earn money sorely needed he took the distasteful lecture field. his two subjects were "the argonauts" and "american humor." his letters to his wife at this time tell the pathetic tale of a sensitive, troubled soul struggling to earn money to pay debts. he writes with brave humor, but the work was uncongenial and the returns disappointing. from ottawa he writes: "do not let this worry you, but kiss the children for me, and hope for the best. i should send you some money, but there _isn't any to send_, and maybe i shall only bring back myself." the next day he added a postscript: "dear nan--i did not send this yesterday, waiting to find the results of last night's lecture. it was a fair house, and this morning--paid me $ , of which i send you the greater part." a few days later he wrote from lawrence, the morning after an unexpectedly good audience: "i made a hundred dollars by the lecture, and it is yours for yourself, nan, to buy minxes with, if you want to." from washington he writes: "thank you, dear nan, for your kind, hopeful letter. i have been very sick, very much disappointed; but i am better now and am only waiting for money to return. can you wonder that i have kept this from you? you have so hard a time of it there, that i cannot bear to have you worried if there is the least hope of a change in my affairs. god bless you and keep you and the children safe, for the sake of frank." no one can read these letters without feeling that they mirror the real man, refined of feeling, kindly and humorous, but not strong of courage, oppressed by obligations, and burdened by doubts of how he was to care for those he loved. with all his talent he could not command independence, and the lot of the man who earns less than it costs to live is hard to bear. harte had the faculty of making friends, even if by neglect he sometimes lost them, and they came to his rescue in this trying time. charles a. dana and others secured for him an appointment by president hayes as commercial agent at crefeld, prussia. in june, , he sailed for england, leaving his family at sea cliff, long island, little supposing that he would never see them or america again. on the day he reached crefeld he wrote his wife in a homesick and almost despondent strain: "i am to all appearance utterly friendless; i have not received the first act of kindness or courtesy from anyone. i think things must be better soon. i shall, please god, make some good friends in good time, and will try and be patient. but i shall not think of sending for you until i see clearly that i can stay myself. if worst comes to worst i shall try to stand it for a year, and save enough to come home and begin anew there. but i could not stand it to see you break your heart here through disappointment as i mayhap may do." here is the artistic, impressionable temperament, easily disheartened, with little self-reliant courage or grit. but he seems to have felt a little ashamed of his plaint, for at midnight of the same day he wrote a second letter, half apologetic and much more hopeful, just because one or two people had been a little kind and he had been taken out to a _fest_. soon after, he wrote a letter to his younger son, then a small boy. it told of a pleasant drive to the rhine, a few miles away. he concludes: "it was all very wonderful, but papa thought after all he was glad his boys live in a country that is as yet _pure_ and _sweet_ and _good_--not in one where every field seems to cry out with the remembrance of bloodshed and wrong, and where so many people have lived and suffered that tonight, under this clear moon, their very ghosts seemed to throng the road and dispute our right of way. be thankful, my dear boy, that you are an american. papa was never so fond of his country before as in this land that has been so great, powerful, and so very hard and wicked." in may, , he was made consul at glasgow, a position that he filled for five years. during this period he spent a considerable part of his time in london and in visiting at country homes. he lectured and wrote and made many friends, among the most valued of whom were william black and walter besant. a new administration came in with and harte was superseded. he went to london and settled down to a simple and regular life. for ten years he lived with the van de veldes, friends of long standing. he wrote with regularity and published several volumes of stories and sketches. in harte visited switzerland. of the alps he wrote: "in spite of their pictorial composition i wouldn't give a mile of the dear old sierras, with their honesty, sincerity, and magnificent uncouthness, for a hundred thousand kilometers of the picturesque vaud." of geneva he wrote: "i thought i should not like it, fancying it a kind of continental boston, and that the shadow of john calvin and the old reformers, or still worse the sentimental idiocy of rousseau and the de staels, still lingered." but he did like it, and wrote brilliantly of lake leman and mont blanc. returning to his home in aldershot he resumed work, giving some time to a libretto for a musical comedy, but his health was failing and he accomplished little. a surgical operation for cancer of the throat in march, , afforded a little relief, but he worked with difficulty. on april th he began a new story, "a friend of colonel starbottle." he wrote one sentence and began another; but the second sentence was his last work, though a few letters to friends bear a later date. on may th, sitting at his desk, there came a hemorrhage of the throat, followed later in the day by a second, which left him unconscious. before the end of the day he peacefully breathed his last. pathetic and inexplicable were the closing days of this gifted man. an exile from his native land, unattended by family or kin, sustaining his lonely life by wringing the dregs of memory, and clasping in farewell the hands of a fancied friend of his dear old reprobate colonel, he, like kentuck, "drifted away into the shadowy river that flows forever to the unknown sea." in his more than forty years of authorship he was both industrious and prolific. in the nineteen volumes of his published work there must be more than two hundred titles of stories and sketches, and many of them are little known. some of them are disappointing in comparison with his earlier and perhaps best work, but many of them are charming and all are in his delightful style, with its undertone of humor that becomes dominant at unexpected intervals. his literary form was distinctive, with a manner not derived from the schools or copied from any of his predecessors, but developed from his own personality. he seems to have founded a modern school, with a lightness of touch and a felicity of expression unparalleled. he was vividly imaginative, and also had the faculty of giving dramatic form and consistency to an incident or story told by another. he was a story-teller, equally dexterous in prose or verse. his taste was unerring and he sought for perfect form. his atmosphere was breezy and healthful--out of doors with the fragrance of the pine-clad sierras. he was never morbid and introspective. his characters are virile and natural men and women who act from simple motives, who live and love, or hate and fight, without regard to problems and with small concern for conventionalities. harte had sentiment, but was realistic and fearless. he felt under no obligation to make all gamblers villains or all preachers heroes. he dealt with human nature in the large and he made it real. his greatest achievement was in faithfully mirroring the life of a new and striking epoch. he seems to have discovered that it was picturesque and to have been almost alone in impressing this fact on the world. he sketched pictures of pioneer life as he saw or imagined it with matchless beauty and compelled the interest and enjoyment of all mankind. his chief medium was the short story, to which he gave a new vogue. translated into many tongues, his tales became the source of knowledge to a large part of the people of europe as to california and the pacific. he associated the far west with romance, and we have never fully outlived it. that he was gifted as a poet no one can deny. perhaps his most striking use of his power as a versifier was in connection with the romantic spanish background of california history. such work as "concepcion de arguello" is well worth while. in his "spanish idylls and legends" he catches the fine spirit of the period and connects california with a past of charm and beauty. his patriotic verse has both strength and loveliness and reflects a depth of feeling that his lighter work does not lead us to expect. in his dialect verse he revels in fun and shows himself a genuine and cleanly humorist. if we search for the source of his great power we may not expect to find it; yet we may decide that among his endowments his extraordinary power of absorption contributes very largely. his early reference to "eager absorption" and "photographic sensitiveness" are singularly significant expressions. experience teaches the plodder, but the man of genius, supremely typified by shakespeare, needs not to acquire knowledge slowly and painfully. sympathy, imagination, and insight reveal truth, and as a plate, sensitized, holds indefinitely the records of the exposure, so harte, forty years after in london, holds in consciousness the impressions of the days he spent in tuolumne county. it is a great gift, a manifestation of genius. he had a fine background of inheritance and a lifetime of good training. bret harte was also gifted with an agreeable personality. he was even-tempered and good-natured. he was an ideal guest and enjoyed his friends. whatever his shortcomings and whatever his personal responsibility for them, he deserves to be treated with the consideration and generosity he extended to others. he was never censorious, and instances of his magnanimity are many. severity of judgment is a custom that few of us can afford, and to be generous is never a mistake. harte was extremely sensitive, and he deplored controversy. he was quite capable of suffering in silence if defense of self might reflect on others. his deficiencies were trivial but damaging, and their heavy retribution he bore with dignity, retaining the respect of those who knew him. as to what he was, as man and author, he is entitled to be judged by a jury of his peers. i could quote at length from a long list of associates of high repute, but they all concur fully with the comprehensive judgment of ina coolbrith, who knew him intimately. she says, "i can only speak of him in terms of unqualified praise as author, friend, and man." in the general introduction that harte wrote for the first volume of his collected stories he refers to the charge that he "confused recognized standards of morality by extenuating lives of recklessness and often criminality with a single solitary virtue" as "the cant of too much mercy." he then adds: "without claiming to be a religious man or a moralist, but simply as an artist, he shall reverently and humbly conform to the rules laid down by a great poet who created the parables of the prodigal son and the good samaritan, whose works have lasted eighteen hundred years, and will remain when the present writer and his generations are forgotten. and he is conscious of uttering no original doctrine in this, but only of voicing the beliefs of a few of his literary brethren happily living, and one gloriously dead, [footnote: evidently dickens.] who never made proclamation of this from the housetops." bret harte had a very unusual combination of sympathetic insight, emotional feeling, and keen sense of the dramatic. in the expression of the result of these powers he commanded a literary style individually developed, expressive of a rare personality. he was vividly imaginative, and he had exacting ideals of precision in expression. his taste was unerring. the depth and power of the great soul were not his. he was the artist, not the prophet. he was a delightful painter of the life he saw, an interpreter of the romance of his day, a keen but merciful satirist, a humorist without reproach, a patriot, a critic, and a kindly, modest gentleman. he was versatile, doing many things exceedingly well, and some things supremely well. he discerned the significance of the remarkable social conditions of early days in california and developed a marvelous power of presenting them in vivid and attractive form. his humor is unsurpassed. it is pervasive, like the perfume of the rose, never offending by violence. his style is a constant surprise and a never-ending delight. his spirit is kindly and generous. he finds good in unsuspected places, and he leaves hope for all mankind. he was sensitive, peace-loving, and indignant at wrong, a scorner of pretense, independent in thought, just in judgment. he surmounted many difficulties, bore suffering without complaint, and left with those who really knew him a pleasant memory. it would seem that he was a greater artist and a better man than is commonly conceded. in failing to honor him california suffers. he should be cherished as her early interpreter, if not as her spirit's discoverer, and ranked high among those who have contributed to her fame. he is the representative literary figure of the state. in her imaginary temple of fame or hall of heroes he deserves a prominent, if not the foremost, niche. as the generations move forward he must not be forgotten. bret harte at our hands needs not to be idealized, but he does deserve to be justly, gratefully, and fittingly realized. chapter v san francisco--the sixties we are familiar with the romantic birth of san francisco and its precocious childhood; we are well acquainted with its picturesque background of spanish history and the glorious days of ' ; but i doubt if we are as well informed as to the significant and perhaps equally important second decade. it was my fortune to catch a hurried glance of san francisco in , when the population was about forty-five thousand. i was then on the way from new england to my father's home in humboldt county. i next saw it in while on my way to and from attendance at the state fair. in i took up my residence in the city and it has since been continuous. that the almost neglected sixties may have some setting, let me briefly trace the beginnings. things moved slowly when america was discovered. columbus found the mainland in . ten years later balboa reached the pacific, and, wading into the ocean, modestly claimed for his sovereign all that bordered its shores. thirty years thereafter the point farthest west was named mendocino, for mendoza, the viceroy ordering the expedition of cabrillo and ferrelos. thirty-seven years later came drake, and almost found san francisco bay. but all these discoveries led to no occupation. it seems incredible that two hundred and twenty-six years elapsed from cabrillo's visit to the day the first settlers landed in san diego, founding the first of the famous missions. historically, is surely marked. in this year napoleon and wellington were born and civilized california was founded. san francisco bay was discovered by a land party. it was august , , seven weeks after the battle of bunker hill, that ayala cautiously found his way into the bay and anchored the "san carlos" off sausalito. five days before the declaration of independence was signed moraga and his men, the first colonists, arrived in san francisco and began getting out the timber to build the fort at the presidio and the church at mission dolores. vancouver, in , poking into an unknown harbor, found a good landing-place at a cove around the first point he rounded at his right. the spaniards called it yerba buena, after the fragrant running vine that abounded in the lee of the sandhills which filled the present site of market street, especially at a point now occupied by the building of the mechanics-mercantile library. there was no human habitation in sight, nor was there to be for forty years, but friendly welcome came on the trails that led to the presidio and the mission. an occasional whaler or a trader in hides and tallow came and went, but foreigners were not encouraged to settle. it was in that the first "gringo" came. in there were thirteen in all california, three of whom were americans. in william a. richardson was the first foreign resident of yerba buena. he was allowed to lay out a street and build a structure of boards and ship's sails in the calle de fundacion, which generally followed the lines of the present grant avenue. the spot approximates number of the avenue today. when dana came in it was the only house visible. the following year jacob p. leese built a complete house, and it was dedicated by a celebration and ball on the fourth of july in which the whole community participated. the settlement grew slowly. in there were sixteen foreigners. in there were a dozen houses and fifty people. in there were but five thousand people in all the state. the missions had been disbanded and the presidio was manned by one gray-haired soldier. the mexican war brought renewed life. on july , , commodore sloat sent captain montgomery with the frigate "portsmouth," and the american flag was raised on the staff in the plaza of , since called portsmouth square. thus began the era of american occupation. lieutenant bartlett was made alcalde, with large powers, in pursuance of which, on february , , he issued a simple order that the town thereafter be known as san francisco,--and its history as such began. the next year gold was discovered. a sleepy, romantic, shiftless but picturesque community became wide-awake, energetic, and aggressive. san francisco leaped into prominence. every nation on earth sent its most ambitious and enterprising as well as its most restless and irresponsible citizens. in the last nine months of , seven hundred shiploads were landed in a houseless town. they largely left for the mines, but more remained than could be housed. they lived on and around hulks run ashore and thousands found shelter in happy valley tents. a population of two thousand at the beginning of the year was twenty thousand at the end. it was a gold-crazed community. everything consumed was imported. gold dust was the only export. from to , gold amounting to over six hundred million dollars was produced. the maximum--eighty-one millions--was reached in . the following year showed a decline of fourteen millions, and saw a further decline of twelve millions. alarm was felt. at the same ratio of decline, in less than four years production would cease. it was plainly evident, if the state were to exist and grow, that other resources must be developed. in the first decade there were periods of great depression. bank and commercial failures were very frequent occurrences in . the state was virtually only six years old--but what wonderful years they had been! in the splendor of achievement and the glamour of the golden fleece we lose sight of the fact that the community was so small. in the whole state there were not more than , people, of whom a seventh lived in san francisco. there were indications that the tide of immigration had reached its height. in arrivals had exceeded departures by twenty-four thousand. in the excess dropped to six thousand. my first view of san francisco left a vivid impression of a city in every way different from any i had ever seen. the streets were planked, the buildings were heterogeneous--some of brick or stone, others little more than shacks. portsmouth square was the general center of interest, facing the city hall and the post office. clay street hill was higher then than now. i know it because i climbed to its top to call on a boy who came on the steamer and lived there. there was but little settlement to the west of the summit. the leading hotel was the international, lately opened, on jackson street below montgomery. it was considered central in location, being convenient to the steamer landings, the custom house, and the wholesale trade. probably but one building of that period has survived. at the corner of montgomery and california streets stood parrott's granite block, the stone for which was cut in china and assembled in by chinese workmen imported for the purpose. it harbored the bank of page, bacon & co., and has been continuously occupied, surviving an explosion of nitroglycerine in (when wells, fargo & co. were its tenants) as well as the fire of . wilson's exchange was in sansome street near sacramento. the american theater was opposite. where the bank of california stands there was a seed store. on the northeast corner of california and sansome streets was bradshaw's zinc grocery store. the growth of the city southward had already begun. the effort to develop north beach commercially had failed. meiggs' wharf was little used; the cobweb saloon, near its shore end, was symbolic. telegraph hill and its semaphore and time-ball were features of business life. it was well worth climbing for the view, which bayard taylor pronounced the finest in the world. at this time san francisco monopolized the commerce of the coast. everything that entered california came through the golden gate, and it nearly all went up the sacramento river. it was distinctly the age of gold. other resources were not considered. this all seemed a very insecure basis for a permanent state. that social and political conditions were threatening may be inferred when we recall that brought the vigilance committee. in came the fraser river stampede. twenty-three thousand people are said to have left the city, and real-estate values suffered severely. in the pony express was established, bringing "the states," as the east was generally designated, considerably nearer. it took but ten and a half days to st. louis, and thirteen to new york, with postage five dollars an ounce. steamers left on the first and fifteenth of the month, and the twenty-eighth and fourteenth were religiously observed as days for collection. no solvent man of honor failed to settle his account on "steamer day." the election of lincoln, followed by the threat of war, was disquieting, and the large southern element was out of sympathy with anything like coercion. but patriotism triumphed. early in a mass meeting was held at the corner of montgomery and market streets, and san francisco pledged her loyalty. in november, , i attended the state fair at sacramento as correspondent for the _humboldt times_. about the only impression of san francisco on my arrival was the disgust i felt for the proprietor of the hotel at which i stopped, when, in reply to my eager inquiry for war news, he was only able to say that he believed there had been some fighting somewhere in virginia. this to one starving for information after a week's abstinence was tantalizing. after a week of absorbing interest, in a fair that seemed enormously important and impressive, i timed my return so as to spend sunday in san francisco, and it was made memorable by attending, morning and evening, the unitarian church, then in stockton near sacramento, and hearing starr king. he had come from boston the year before, proposing to fill the pulpit for a year, and from the first aroused great enthusiasm. i found the church crowded and was naturally consigned to a back seat, which i shared with a sewing-machine, for it was war-time and the women were very active in relief work. the gifted preacher was thirty-seven years old, but seemed younger. he was of medium height, had a kindly face with a generous mouth, a full forehead, and dark, glowing eyes. in june, , i became a resident of san francisco, rejoining the family and becoming a clerk in the office of the superintendent of indian affairs. the city was about one-fifth its present size, claiming a population of , . i want to give an idea of san francisco's character and life at that time, and of general conditions in the second decade. it is not easy to do, and demands the reader's help and sympathy. let him imagine, if he will, that he is visiting san francisco for the first time, and that he is a personal friend of the writer, who takes a day off to show him the city. in one could arrive here only by steamer; there were no railways. i meet my friend at the gangplank of the steamer on the wharf at the foot of broadway. to reach the car on east street (now the embarcadero), we very likely skirt gaping holes in the planked wharf, exposing the dark water lapping the supporting piles, and are assailed by bilge-like odors that escape. two dejected horses await us. entering the car we find two lengthwise seats upholstered in red plush. if it be winter, the floor is liberally covered by straw, to mitigate the mud. if it be summer, the trade winds are liberally charged with fine sand and infinitesimal splinters from the planks which are utilized for both streets and sidewalks. we rattle along east and intersecting streets until we reach sansome, upon which we proceed to bush, which practically bounds the business district on the south, thence we meander by a circuitous route to laurel hill cemetery near lone mountain. a guide is almost necessary. an incoming stranger once asked the conductor to let him off at the american exchange, which the car passed. he was surprised at the distance to his destination. at the cemetery end of the line he discovered that the conductor had forgotten him, but was assured that he would stop at the hotel on the way back. the next thing he knew he reached the wharf; the conductor had again forgotten him. his confidence exhausted, he insisted on walking, following the track until he reached the hotel. in the present instance we alight from the car when it reaches montgomery street, at the occidental hotel, new and attractive, well managed by a new yorker named leland and especially patronized by army people. we rest briefly and start out for a preliminary survey. three blocks to the south we reach market street and gaze upon the outer edge of the bustling city. across the magnificently wide but rude and unfinished street, at the immediate right, where the palace hotel is to stand, we see st. patrick's church and an orphan asylum. a little beyond, at the corner of third street, is a huge hill of sand covering the present site of the glaus spreckels building, upon which a steam-paddy is at work loading flat steam cars that run mission-ward. the lot now occupied by the emporium is the site of a large catholic school. at our left, stretching to the bay are coal-yards, foundries, planing-mills, box-factories, and the like. it will be years before business crosses market street. happy valley and pleasant valley, beyond, are well covered by inexpensive residences. the north beach and south park car line connects the fine residence district on and around rincon hill with the fine stretches of northern stockton street and the environs of telegraph hill. at the time i picture, no street-cars ran below montgomery, on market street; traffic did not warrant it. it was a boundary rather than a thoroughfare. it was destined to be one of the world's noted streets, but at this time the city's life pulsed through montgomery street, to which we will now return. turning from the apparent jumping-off place we cross to the "dollar side" and join the promenaders who pass in review or pause to gaze at the shop windows. montgomery street has been pre-eminent since the early days and is now at its height. for a long time clay street harbored the leading dry-goods stores, like the city of paris, but all are struggling for place in montgomery. here every business is represented--beach, roman, and bancroft, the leading booksellers; barrett & sherwood, tucker, and andrews, jewelers; donohoe, kelly & co., john sime, and hickox & spear, bankers; and numerous dealers in carpets, furniture, hats, french shoes, optical goods, etc. of course barry & patten's was not the only saloon. passing along we are almost sure to see some of the characters of the day--certainly emperor norton and freddie coombs (a reincarnated franklin), probably colonel stevenson, with his punch-like countenance, towering isaac friedlander, the poor rich michael reese, handsome hall mcallister, and aristocratic ogden hoffman. should the fire-bell ring we will see knickerbocker no. five in action, with chief scannell and "bummer" and "lazarus," and perhaps lillie hitchcock. when we reach washington street we cross to make a call at the bank exchange in the montgomery block, the largest structure on the street. the "exchange" is merely a popular saloon, but it boasts ten billiard tables and back of the bar hangs the famous picture of "samson and delilah." luncheon being in order we are embarrassed with riches. perhaps the mint restaurant is as good as the best and probably gives a sight of more prominent politicians than any other resort; but something quite characteristic is the daily gathering at jury's, a humble hole-in-the-wall in merchant street back of the _bulletin_ office. four lawyers who like one another, and like good living as well, have a special table. alexander campbell, milton andros, george sharp, and judge dwinelle will stop first in the clay street market, conveniently opposite, and select the duck, fish, or english mutton-chops for the day's menu. one of the number bears the choice to the kitchen and superintends its preparation while the others engage in shrimps and table-talk until it is served. if jury's is overflowing with custom, there are two other french restaurants alongside. after luncheon we have a glimpse of the business district, following back on the "two-bit" side of the street. at clay we pass a saloon with a cigar-stand in front and find a group listening to a man with bushy hair and a reddish mustache, who in an easy attitude and in a quaintly drawling voice is telling a story. we await the laugh and pass on, and i say that he is a reporter, lately from nevada, called mark twain. very likely we encounter at commercial street, on his way to the _call_ office, a well-dressed young man with dundreary whiskers and an aquiline nose. he nods to me and i introduce bret harte, secretary to the superintendent of the mint, and author of the clever "condensed novels" being printed in the _californian_. at california street we turn east, passing the shipping offices and hardware houses, and coming to battery street, where israelites wax fat in wholesale dry goods and the clothing business. for solid big business in groceries, liquors, and provisions we must keep on to front street--front by name only, for four streets on filled-in land have crept in front of front. following this very important street past the shipping offices we reach washington street, passing up which we come to battery street, where we pause to glance at the custom house and post office at the right and the recently established bank of california on the southwest corner of the two streets. having fairly surveyed the legitimate business we wish to see something of the engrossing avocation of most of the people of the city, of any business or no business, and we pass on to montgomery, crossing over to the center of the stock exchange activities. groups of men and women are watching the tapes in the brokers' offices, messengers are running in and out the board entrances, intense excitement is everywhere apparent. having gained admission to the gallery of the board room we look down on the frantic mob, buying and selling comstock shares. how much is really sold and how much is washing no one knows, but enormous transactions, big with fate, are of everyday occurrence. as we pass out we notice a man with strong face whose shoes show dire need of patching. asked his name, i answer, "jim keane; just now he is down, but some day he is bound to be way up." we saunter up clay, passing burr's savings bank and a few remaining stores, to kearny, and portsmouth square, whose glory is departing. the city hall faces it, and so does exempt engine house, but dentists' offices and cheap theaters and chinese stores are crowding in. clay street holds good boarding-houses, but decay is manifest. we pass on to stockton, still a favorite residence street; turning south we pass, near sacramento, the church in which starr king first preached, now proudly owned by the negro methodists. at post we reach union square, nearly covered by the wooden pavilion in which the mechanics' institute holds its fairs. diagonally opposite the southeast corner of the desecrated park are the buildings of the ambitious city college, and east of them a beautiful church edifice always spoken of as "starr king's church." very likely, seeing the church, i might be reminded of one of mr. king's most valued friends, and suggest that we call upon him at the golden gate flour-mill in pine street, where the california market was to stand. if we met horace davis, i should feel that i had presented one of our best citizens. dinner presents many opportunities; but i am inclined to think we shall settle on frank garcia's restaurant in montgomery near jackson, where good service awaits us, and we may hear the upraised voices of some of the big lawyers who frequent the place. for the evening we have the choice between several bands of minstrels, but if forrest and john mccullough are billed for "jack cade" we shall probably call on tom maguire. after the strenuous play we pass up washington street to peter job's and indulge in his incomparable ice-cream. on sunday i shall continue my guidance. churches are plentiful and preachers are good. in the afternoon i think i may venture to invite my friend to the willows, a public garden between mission and valencia and seventeenth and nineteenth streets. we shall hear excellent music in the open air and can sit at a small table and sip good beer. i find such indulgence far less wicked than i had been led to believe. when there is something distinctive in a community a visitor is supposed to take it in, and in the evening we attend the meeting of the dashaway association in its own hall in post street near dupont. it numbers five thousand members and meets sunday mornings and evenings. strict temperance is a live issue at this time. the sons of temperance maintain four divisions. there are besides two lodges of good templars and a san francisco temperance union. and in spite of all this the city feels called upon to support a home for inebriates at stockton and chestnut streets, to which the supervisors contribute two hundred and fifty dollars a month. i shall feel that i am derelict if i do not manage a jaunt to the cliff house. the most desirable method demands a span of horses for a spin out point lobos avenue. we may, however, be obliged to take a mcginn bus that leaves the plaza hourly. it will be all the same when we reach the cliff and gaze on ben butler and his companion sea-lions as they disport themselves in the ocean or climb the rocks. wind or fog may greet us, but the indifferent monsters roar, fight, and play, while the restless waves roll in. we must, also, make a special trip to rincon hill and south park to see how and where our magnates dwell. the block in folsom street must not be neglected. the residences of such men as john parrott and milton s. latham are almost palatial. it is related that a visitor impressed with the elegance of one of these places asked a modest man in the neighborhood if he knew whose it was. "yes," he replied, "it belongs to an old fool by the name of john parrott, and i am he." we shall leave out something distinctive if we do not call at the what cheer house in sacramento street below montgomery, a hostelry for men, with moderate prices, notwithstanding many unusual privileges. it has a large reading-room and a library of five thousand volumes, besides a very respectable museum. guests are supplied with all facilities for blacking their own boots, and are made at home in every way. incidentally the proprietor made a good fortune, a large part of which he invested in turning his home at fourteenth and mission streets into a pleasure resort known as woodward's gardens, which for many years was our principal park, art gallery and museum. these are a few of the things i could have shown. but to know and appreciate the spirit and character of a city one must live in it and be of it; so i beg to be dismissed as a guide and to offer experiences and events that may throw some light on life in the stirring sixties. when i migrated from humboldt county and enlisted for life as a san franciscan i lived with my father's family in a small brick house in powell street near ellis. the golden west hotel now covers the lot. the little houses opposite were on a higher level and were surrounded by small gardens. both street and sidewalks were planked, but i remember that my brother and i, that we might escape the drifting sand, often walked on the flat board that capped the flimsy fence in front of a vacant lot. on the west of powell, at market, was st. ann's garden and nursery. on the east, where the flood building stands, was a stable and riding-school. much had been accomplished in city building, but the process was continuing. few of us realize the obstacles overcome. fifteen years before, the site was the rugged end of a narrow peninsula, with high rock hills, wastes of drifting sand, a curving cove of beach, bordered with swamps and estuaries, and here and there a few oases in the form of small valleys. in the general lines of the city were practically those of today. it was the present san francisco, laid out but not filled out. there was little west of larkin street and quite a gap between the city proper and the mission. size in a city greatly modifies character. in i found a compact community; whatever was going on seemed to interest all. we now have a multitude of unrelated circles; then there was one great circle including the sympathetic whole. the one theater that offered the legitimate drew and could accommodate all who cared for it. herold's orchestral concerts, a great singer like parepa rosa, or a violinist like ole bull drew all the music-lovers of the city. and likewise, in the early springtime when the unitarian picnic was announced at belmont or fairfax, it would be attended by at least a thousand, and heartily enjoyed by all, regardless of church connection. such things are no more, though the population to draw from be five times as large. in the sixties, church congregations and lecture audiences were much larger than they are now. there seemed always to be some one preacher or lecturer who was the vogue, practically monopolizing public interest. his name might be scudder or kittredge or moody, but while he lasted everybody rushed to hear him. and there was commonly some special fad that prevailed. spiritualism held the boards for quite a time. changes in real-estate values were a marked feature of the city's life. the laying out of broadway was significant of expectations. banks in the early days were north of pacific in montgomery, but very soon the drift to the south began. in , when the unitarian church in stockton street near sacramento was found too small, it was determined to push well to the front of the city's growth. two lots were under final consideration, the northwest corner of geary and powell, where the st. francis now stands, and the lot in geary east of stockton, now covered by the whitney building. the first lot was a corner and well situated, but it was rejected on the ground that it was "too far out." the trustees paid $ , for the other lot and built the fine church that was occupied until , when it was felt to be too far down town, and the present building at franklin and geary streets was erected. incidentally, the lot sold for $ , . the evolution of pavements has been an interesting incident of the city's life. planks were cheap and they held down some of the sand, but they grew in disfavor. in the superintendent of streets reported that in the previous year , , square feet of planks had been laid, and , square feet had been paved with cobbles, a lineal mile of which cost $ , . how much suffering they cost the militia who marched on them is not reported. nicholson pavement was tried and found wanting. basalt blocks found brief favor. finally we reached the modern era and approximate perfection. checker-board street planning was a serious misfortune to the city, and it was aggravated by the narrowness of most of the streets. kearny street, forty-five and one-half feet wide, and dupont, forty-four and one-half feet, were absurd. in steps were taken to add thirty feet to the west side of kearny. in the work was done, and it proved a great success. the cost was five hundred and seventy-nine thousand dollars, and the addition to the value of the property was not less than four million dollars. when the work began the front-foot value at the northern end was double that at market street. today the value at market street is more than five times that at broadway. the first sunday after my arrival in san francisco i went to the unitarian church and heard the wonderfully attractive and satisfying dr. bellows, temporary supply. it was the beginning of a church connection that still continues and to which i owe more than i can express. dr. bellows had endeared himself to the community by his warm appreciation of their liberal support of the sanitary commission during the civil war. the interchange of messages between him in new york and starr king in san francisco had been stimulating and effective. when the work was concluded it was found that california had furnished one-fourth of the $ , , expended. governor low headed the san francisco committee. the pacific coast, with a population of half a million, supplied one-third of all the money spent by this forerunner of the red cross. the other states of the union, with a population of about thirty-two million, supplied two-thirds. but california was far away and it was not thought wise to drain the west of its loyal forces, and we ought to have given freely of our money. in all, quite a number found their way to the fighting front. a friend of mine went to the wharf to see lieutenant sheridan, late of oregon, embark for the east and active service. sheridan was grimly in earnest, and remarked: "i'll come back a captain or i'll not come back at all." when he did come back it was with the rank of lieutenant-general. while san francisco was unquestionably loyal, there were not a few southern sympathizers, and loyalists were prepared for trouble. i soon discovered that a secret union league was active and vigilant. weekly meetings for drill were held in the pavilion in union square, admission being by password only. i promptly joined. the regimental commander was martin j. burke, chief of police. my company commander was george t. knox, a prominent notary public. i also joined the militia, choosing the state guard, captain dawes, which drilled weekly in the armory in market street opposite dupont. fellow members were horace davis and his brother george, charles w. wendte (now an eastern d.d.), samuel l. cutter, fred glimmer of the unitarian church, henry michaels, and w.w. henry, father of the present president of mills college. our active service was mainly confined to marching over the cruel cobble-stones on the fourth of july and other show-off occasions, while commonly we indulged in an annual excursion and target practice in the wilds of alameda. once we saw real service. when the news of the assassination of lincoln reached san francisco the excitement was intense. newspapers that had slandered him or been lukewarm in his support suffered. the militia was called out in fear of a riot and passed a night in the basement of platt's hall. but preparedness was all that was needed. a few days later we took part in a most imposing procession. all the military and most other organizations followed a massive catafalque and a riderless horse through streets heavily draped with black. the line of march was long, arms were reversed, the sorrowing people crowded the way, and solemnity and grief on every hand told how deeply lincoln was loved. i had cast my first presidential vote for him, at turn verein hall, bush street, november , . when the news of his re-election by the voters of every loyal state came to us, we went nearly wild with enthusiasm, but our heartiest rejoicing came with the fall of richmond. we had a great procession, following the usual route--from washington square to montgomery, to market, to third, to south park, where fair women from crowded balconies waved handkerchiefs and flags to shouting marchers--and back to the place of beginning. processioning was a great function of those days, observed by the cohorts of st. patrick and by all political parties. it was a painful process, for the street pavement was simply awful. sometimes there were trouble and mild assaults. the only recollection i have of striking a man is connected with a torchlight procession celebrating some union victory. when returning from south of market, a group of jeering toughs closed in on us and i was lightly hit. i turned and using my oil-filled lamp at the end of a staff as a weapon, hit out at my assailant. the only evidence that the blow was an effective one was the loss of the lamp; borne along by solid ranks of patriots i clung to an unilluminated stick. party feeling was strong in the sixties and bands and bonfires plentiful. at one election the democrats organized a corps of rangers, who marched with brooms, indicative of the impending clean sweep by which they were to "turn the rascals out." for each presidential election drill crops were organized, but the blaine invincibles didn't exactly prove so. the republican party held a long lease of power, however. governor low was a very popular executive, while municipally the people's party, formed in by adherents of the vigilance committee, was still in the saddle, giving good, though not far-sighted and progressive, government. only those who experienced the abuses under the old methods of conducting elections can realize the value of the provision for the uniform ballot and a quiet ballot box, adopted in . there had been no secrecy or privacy, and peddlers of rival tickets fought for patronage to the box's mouth. one served as an election officer at the risk of sanity if not of life. in the "fighting seventh" ward i once counted ballots for thirty-six consecutive hours, and as i remember conditions i was the only officer who finished sober. during my first year in government employ the depreciation in legal-tender notes in which we were paid was very embarrassing. one hundred dollars in notes would bring but thirty-five or forty dollars in gold, and we could get nothing we wanted except with gold. my second year in san francisco i lived in howard street near first and was bookkeeper for a stock-broker. i became familiar with the fascinating financial game that followed the development of the comstock lode, discovered in . it was before production was large. then began the silver age, a new era that completely transformed california and made san francisco a great center of financial power. within twenty years $ , , poured into her banks. the world's silver output increased from forty millions a year to sixty millions. in september of the stock board was organized. at first a share in a company represented a running foot on the lode's length. in , mr. cornelius o'connor bought ten shares of consolidated virginia at eight dollars a share. when it had been divided into one thousand shares and he was offered $ a share, he had the sagacity to sell, realizing a profit of $ , on his investment of $ . at the time he sold, a share represented one-fourteenth of an inch. in six years the bonanza yielded $ , , , of which $ , , was paid in dividends. the effect of such unparalleled riches was wide-spread. it made nevada a state and gave great impetus to the growth of san francisco. it had a marked influence on society and modified the character of the city itself. fifteen years of abnormal excitement, with gains and losses incredible in amount, unsettled the stability of trade and orderly business and proved a demoralizing influence. speculation became a habit. it was gambling adjusted to all conditions, with equal opportunity for millionaire or chambermaid, and few resisted altogether. few felt shame, but some were secretive. a few words are due adolph sutro, who dealt in cigars in his early manhood, but went to nevada in and by owned a quartz-mill. in he became impressed with the idea that the volume of water continually flowing into the deeper mines of the comstock lode would eventually demand an outlet on the floor of carson valley, four miles away. he secured the legislation and surprised both friends and enemies by raising the money to begin construction of the famous sutro tunnel. he began the work in , and in some way carried it through, spending five million dollars. the mine-owners did not want to use his tunnel, but they had to. he finally sold out at a good price and put the most of a large fortune in san francisco real estate. at one time he owned one-tenth of the area of the city. he forested the bald hills of the san miguel rancho, an immense improvement, changing the whole sky-line back of golden gate park. he built the fine sutro baths, planted the beautiful gardens on the heights above the cliff house, established a car line that meant to the ocean for a nickel, amassed a library of twenty thousand volumes, and incidentally made a good mayor. he was a public benefactor and should be held in grateful memory. the memories that cluster around a certain building are often impressive, both intrinsically and by reason of their variety. platt's hall is connected with experiences of first interest. for many years it was the place for most occasional events of every character. it was a large square auditorium on the spot now covered by the mills building. balls, lectures, concerts, political meetings, receptions, everything that was popular and wanted to be considered first-class went to platt's hall. starr king's popularity had given the unitarian church and sunday-school a great hold on the community. at christmas its festivals were held in platt's hall. we paid a hundred dollars for rent and twenty-five dollars for a christmas-tree. persons who served as doorkeepers or in any other capacity received ten dollars each. at one dollar for admission we crowded the big hall and always had money left over. our entertainments were elaborate, closing with a dance. my first service for the sunday-school was the unobserved holding up an angel's wing in a tableau. one of the most charming of effects was an artificial snowstorm, arranged for the concluding dance at a christmas festival. the ceiling of the hall was composed of horizontal windows giving perfect ventilation and incidentally making it feasible for a large force of boys to scatter quantities of cut-up white paper evenly and plentifully over the dancers, the evergreen garlands decorating the hall, and the polished floor. it was a long-continued downpour, a complete surprise, and for many a year a happy tradition. in platt's hall wonderfully fine orchestral concerts were held, under the very capable direction of rudolph herold. early in the sixties caroline richings had a successful season of english opera. later the howsons charmed us for a time. all the noteworthy lecturers of the world who visited california received us at platt's hall. beecher made a great impression. carl schurz, also, stirred us deeply. i recall one clever sentence. he said, "when the time came that this country needed a poultice it elected president hayes and got it." of our local talent real eloquence found its best expression in henry edgerton. the height of enthusiasm was registered in war-time by the mighty throng that gathered at lincoln's call for a hundred thousand men. starr king was the principal speaker. he had called upon his protégé, bret harte, for a poem for the occasion. harte doubted his ability, but he handed mr. king the result of his effort. he called it the "reveille." king was greatly delighted. harte hid himself in the concourse. king's wonderful voice, thrilling with emotion, carried the call to every heart and the audience with one accord stood and cheered again and again. one of the most striking coincidences i ever knew occurred in connection with the comparatively mild earthquake of . it visited us on a sunday at the last moments of the morning sermon. those in attendance at the unitarian church were engaged in singing the last hymn, standing with books in hand. the movement was not violent but threatening. it flashed through my mind that the strain on a building with a large unsupported roof must be great. faces blanched, but all stood quietly waiting the end, and all would have gone well had not the large central pipe of the organ, apparently unattached, only its weight holding it in place, tottered on its base and leaped over the heads of the choir, falling into the aisle in front of the first pews. the effect was electric. the large congregation waited for no benediction or other form of dismissal. the church was emptied in an incredibly short time, and the congregation was very soon in the middle of the street, hymnbooks in hand. the coincidence was that the verse being sung was, "the seas shall melt, and skies to smoke decay, rocks turn to dust, and mountains fall away." we had evening services at the time, and dr. stebbins again gave out the same hymn, and this time we sang it through. the story of golden gate park and how the city got it is very interesting, but must be much abridged. in i pieced out a modest income by reporting the proceedings of the board of supervisors and the school board for the _call_. it was in the palmy days of the people's party. the supervisors, elected from the wards in which they lived, were honest and fairly able. the man of most brains and initiative was frank mccoppin. the most important question before them was the disposition of the outside lands. in the city had sued for the four square leagues (seventeen thousand acres) allowed under the mexican law. it was granted ten thousand acres, which left all land west of divisadero street unsettled as to title. appeal was taken, and finally the city's claim was confirmed. in congress passed an act confirming the decree, and the legislature authorized the conveyance of the lands to occupants. they were mostly squatters, and the prize was a rich one. congress had decreed "that all of this land not needed for public purposes, or not previously disposed of, should be conveyed to the persons in possession," so that all the latitude allowed was as to what "needs for public purposes" covered. there had been agitation for a park; indeed, frederick law olmstead had made an elaborate but discouraging report, ignoring the availability of the drifting sand-hills that formed so large a part of the outside lands, recommending a park including our little duboce park and one at black point, the two to be connected by a widened and parked van ness avenue, sunken and crossed by ornamental bridges. the undistributed outside lands to be disposed of comprised eighty-four hundred acres. the supervisors determined to reserve one thousand acres for a park. some wanted to improve the opportunity to secure without cost considerably more. the _bulletin_ advocated an extension that would bring a bell-shaped panhandle down to the yerba buena cemetery, property owned by the city and now embraced in the civic center. after long consideration a compromise was made by which the claimants paid to those whose lands were kept for public use ten per cent of the value of the lands distributed. by this means , . acres were rescued, of which golden gate park included , . , the rest being used for a cemetery, buena vista park, public squares, school lots, etc. the ordinances accomplishing the qualified boon to the city were fathered by mccoppin and clement. other members of the committee, immortalized by the streets named after them, were clayton, ashbury, cole, shrader, and stanyan. the story of the development of golden gate park is well known. the beauty and charm are more eloquent than words, and john mclaren, ranks high among the city's benefactors. the years from to marked many changes in the character and appearance of san francisco. indeed, its real growth and development date from the end of the first decade. before that we were clearing off the lot and assembling the material. the foundation of the structure that we are still building was laid in the second decade. statistics establish the fact. in population we increased from less than , to , -- per cent. in the first decade our assessed property increased $ , , ; in the second, $ , , . our imports and exports increased from $ , , to $ , , . great gain came through the silver production, but greater far from the development of the permanent industries of the land--grain, fruit, lumber--and the shipping that followed it. the city made strides in growth and beauty. our greatest trial was too much prosperity and the growth of luxury and extravagance. chapter vi later san francisco in a brief chapter little can be offered that will tell the story of half a century of life of a great city. no attempt will be made to trace its progress or to recount its achievement. it is my purpose merely to record events and occurrences that i remember, for whatever interest they may have or whatever light they may throw on the life of the city or on my experience in it. for many years we greatly enjoyed the exhibits and promenade concerts of the mechanics' institute fairs. the large pavilion also served a useful purpose in connection with various entertainments demanding capacity. in there was held a very successful musical festival; twelve hundred singers participated and camilla urso was the violinist. the attendance exceeded six thousand. the mercantile library was in very strong and seemed destined to eternal life, but it became burdened with debt and sought to extricate itself by an outrageous expedient. the legislature passed an act especially permitting a huge lottery, and for three days in the town was given over to gambling, unabashed and unashamed. the result seemed a triumph. half a million dollars was realized, but it was a violation of decency that sounded the knell of the institution, and it was later absorbed by the plodding mechanics' institute, which had always been most judiciously managed. its investments in real estate that it used have made it wealthy. a gala day of was the spectacular removal of blossom rock. the early-day navigation was imperiled by a small rock northwest of angel island, covered at low tide by but five feet of water. it was called blossom, from having caused the loss of an english ship of that name. the government closed a bargain with engineer von schmidt, who three years before had excavated from the solid rock at hunter's point a dry dock that had gained wide renown. von schmidt guaranteed twenty-four feet of water at a cost of seventy-five thousand dollars, no payment to be made unless he succeeded. he built a cofferdam, sunk a shaft, planted twenty-three tons of powder in the tunnels he ran, and on may th, after notice duly served, which sent the bulk of the population to view-commanding hills, he pushed an electric button that fired the mine, throwing water and debris one hundred and fifty feet in the air. blossom rock was no more, deep water was secured, and von schmidt cashed his check. on my trip from humboldt county to san francisco in i made the acquaintance of andrew s. hallidie, an english engineer who had constructed a wire bridge over the klamath river. in he came to my printing office to order a prospectus announcing the formation of a small company to construct a new type of street-car, to be propelled by wire cable running in a conduit in the street and reached by a grip through a slot. it was suggested by the suffering of horses striving to haul cars up our steep hills and it utilized methods successfully used in transporting ores from the mines. on august , , the first cable-car made a successful trial trip of seven blocks over clay street hill, from kearny to leavenworth. later it was extended four blocks to the west. from this beginning the cable-roads spread over most of the city and around the world. with the development of the electric trolley they were largely displaced except on steep grades, where they still perform an important function. mr. hallidie was a public-spirited citizen and an influential regent of the university of california. in there was forced upon the citizens of san francisco the necessity of taking steps to give better care and opportunity to the neglected children of the community. a poorly conducted reform school was encouraging crime instead of effecting reform. on every hand was heard the question, "what shall we do with our boys?" encouraged by the reports of what had been accomplished in new york city by charles l. brace, correspondence was entered into, and finally the boys and girls aid society was organized. difficulty was encountered in finding any one willing to act as president of the organization, but george c. hickox, a well-known banker, was at last persuaded and became much interested in the work. for some time it was a difficult problem to secure funds to meet the modest expenses. a lecture by charles kingsley was a flat failure. much more successful was an entertainment at platt's hall at which well-known citizens took part in an old-time spelling-match. in a small building in clementina street we began with neighborhood boys, who were at first wild and unruly. senator george c. perkins became interested, and for more than forty years served as president. through him senator fair gave five thousand dollars and later the two valuable fifty-vara lots at grove and baker streets, still occupied by the home. we issued a little paper, _child and state_, in which we appealed for a building, and a copy fell into the hands of miss helen mcdowell, daughter of the general. she sent it to miss hattie crocker, who passed it to her father, charles crocker, of railroad fame. he became interested and wrote for particulars, and when the plans were submitted he told us to go ahead and build, sending the bills to him. these two substantial gifts made possible the working out of our plans, and the results have been very encouraging. when the building was erected, on the advice of the experts of the period, two lockups were installed, one without light. experience soon convinced us that they could be dispensed with, and both were torn out. an honor system was substituted, to manifest advantage, and failures to return when boys are permitted to visit parents are negligible in number. the three months of summer vacation are devoted to berry-picking, with satisfaction to growers and to the boys, who last year earned eleven thousand dollars, of which seven thousand dollars was paid to the boys who participated, in proportion to the amount earned. william c. ralston was able, daring, and brilliant. in he organized the bank of california, which, through its virginia city connection and the keenness and audacity of william sharon, practically monopolized the big business of the comstock, controlling mines, milling, and transportation. in san francisco it was _the_ bank, and its earnings were huge. ralston was public-spirited and enterprising. he backed all kinds of schemes as well as many legitimate undertakings. he seemed the great power of the pacific coast. but in , when the silver output dropped and the tide that had flowed in for a dozen years turned to ebb, distrust was speedy. on the afternoon of august th, as i chanced to be passing the bank, i saw with dismay the closing of its doors. the death of ralston, the discovery of wild investments, and the long train of loss were intensely tragic. the final rehabilitation of the bank brought assurance and rich reward to those who met their loss like men, but the lesson was a hard one. in retrospect ralston seems to typify that extraordinary era of wild speculation and recklessness. no glance at old san francisco can be considered complete which does not at least recognize emperor norton, a picturesque figure of its life. a heavy, elderly man, probably jewish, who paraded the streets in a dingy uniform with conspicuous epaulets, a plumed hat, and a knobby cane. whether he was a pretender or imagined that he was an emperor no one knew or seemed to care. he was good-natured, and he was humored. everybody bought his scrip in fifty cents denomination. i was his favored printer, and he assured me that when he came into his estate he would make me chancellor of the exchequer. he often attended the services of the unitarian church, and expressed his feeling that there were too many churches and that when the empire was established he should request all to accept the unitarian church. he once asked me if i could select from among the ladies of our church a suitable empress. i told him i thought i might, but that he must be ready to provide for her handsomely; that no man thought of keeping a bird until he had a cage, and that a queen must have a palace. he was satisfied, and i never was called upon. the most memorable of the fourth of july celebrations was in , when the hundredth anniversary called for something special. the best to be had was prepared for the occasion. the procession was elaborate and impressive. dr. stebbins delivered a fine oration; there was a poem, of course; but the especial feature was a military and naval spectacle, elaborate in character. the fortifications around the harbor and the ships available were scheduled to unite in an attack on a supposed enemy ship attempting to enter the harbor. the part of the invading cruiser was taken by a large scow anchored between sausalito and fort point. at an advertised hour the bombardment was to begin, and practically the whole population of the city sought the high hills commanding the view. the hills above the presidio were then bare of habitations, but on that day they were black with eager spectators. when the hour arrived the bombardment began. the air was full of smoke and the noise was terrific, but alas for marksmanship, the willing and waiting cruiser rode serenely unharmed and unhittable. the afternoon wore away and still no chance shot went home. finally a whitehall boat sneaked out and set the enemy ship on fire, that her continued security might no longer oppress us. it was a most impressive exhibit of unpreparedness, and gave us much to think of. on the evening of the same day, father neri, at st. ignatius college, displayed electric lighting for the first time in san francisco, using three french arc lights. the most significant event of the second decade was the rise and decline of the workingmen's party, following the remarkable episode of the sand lot and denis kearney. the winter of - had been one of slight rainfall, there had been a general failure of crops, the yield of gold and silver had been small, and there was much unemployment. there had been riots in the east and discontent and much resentment were rife. the line of least resistance seemed to be the clothes-line. the chinese, though in no wise responsible, were attacked. laundries were destroyed, but rioting brought speedy organization. a committee of safety, six thousand strong, took the situation in hand. the state and the national governments moved resolutely, and order was very soon restored. kearney was clever and knew when to stop. he used his qualities of leadership for his individual advantage and eventually became sleek and prosperous. in the meantime he was influential in forming a political movement that played a prominent part in giving us a new constitution. the ultra conservatives were frightened, but the new instrument did not prove so harmful as was feared. it had many good features and lent itself readily to judicial construction. while we now treat the episode lightly, it was at the time a serious matter. it was jack cade in real life, and threatened existing society much as the bolshevists do in russia. the significant feature of the experience was that there was a measure of justification for the protest. vast fortunes had been suddenly amassed and luxury and extravagance presented a damaging contrast to the poverty and suffering of the many. heartlessness and indifference are the primary danger. the result of the revolt was on the whole good. the warning was needed, and, on the other hand, the protestants learned that real reforms are not brought about by violence or even the summary change of organic law. in i had the good fortune to join the chit-chat club, which had been formed three years before on very simple lines. a few high-minded young lawyers interested in serious matters, but alive to good-fellowship, dined together once a month and discussed an essay that one of them had written. the essayist of one meeting presided at the next. a secretary-treasurer was the only officer. originally the papers alternated between literature and political economy, but as time went on all restrictions were removed, although by usage politics and religion are shunned. the membership has always been of high character and remarkable interest has been maintained. i have esteemed it a great privilege to be associated with so fine a body of kindly, cultivated men, and educationally it has been of great advantage. i have missed few meetings in the forty-four years, and the friendships formed have been many and close. we formerly celebrated our annual meetings and invited men of note. our guests included generals howard, gibbons, and miles, the lecontes, edward rowland sill, and luther burbank. we enjoyed meeting celebrities, but our regular meetings, with no formality, proved on the whole more to our taste and celebrations were given up. when i think of the delight and benefit that i have derived from this association of clubbable men i feel moved to urge that similar groups be developed wherever even a very few will make the attempt. in i joined many of my friends and acquaintances in a remarkable entertainment on a large scale. it was held in the mechanics' pavilion and continued for many successive nights. it was called the "carnival of authors." the immense floor was divided into a series of booths, occupied by representative characters of all the noted authors, shakespeare, chaucer, dickens, irving, scott, and many others. a grand march every evening introduced the performances or receptions given at the various booths, and was very colorful and amusing. my character was the fortune-teller in the alhambra, and my experiences were interesting and impressive. my disguise was complete, and in my zodiacal quarters i had much fun in telling fortunes for many people i knew quite well, and i could make revelations that seemed to them very wonderful. in the grand march i could indulge in the most unmannered swagger. my own sister asked in indignation: "who is that old man making eyes at me?" i held many charming hands as i pretended to study the lines. one evening charles crocker, as he strolled past, inquired if i would like any help. i assured him that beauty were safer in the hands of age. a young woman whom i saw weekly at church came with her cousin, a well-known banker. i told her fortune quite to her satisfaction, and then informed her that the gentleman with her was a relative, but not a brother. "how wonderful!" she exclaimed. a very well-known irish stock operator came with his daughter, whose fortune i made rosy. she persuaded her father to sit. nearly every morning i had met him as he rode a neat pony along a street running to north beach, where he took a swim. i told him that the lines of his hand indicated water, that he had been born across the water. "yes," he murmured, "in france." i told him he had been successful. "moderately so," he admitted. i said, "some people think it has been merely good luck, but you have contributed to good fortune. you are a man of very regular habits. among your habits is that of bathing every morning in the waters of the bay." "oh, god!" he ejaculated, "he knows me!" some experiences were not so humorous. a very hard-handed, poorly dressed but patently upright man took it very seriously. i told him he had had a pretty hard life, but that no man could look him in the face and say that he had been wronged by him. he said that was so, but he wanted to ask my advice as to what to do when persecuted because he could not do more than was possible to pay an old debt for which he was not to blame. i comforted him all i could, and told him he should not allow himself to be imposed upon. when he left he asked for my address down town. he wanted to see me again. the depth of suffering and the credulity revealed were often embarrassing and made me feel a fraud when i was aiming merely to amuse. i was glad again to become my undisguised self. it was in the late eighties that julia ward howe visited her sister near the city, and i very gladly was of service in helping her fill some of her engagements. she gave much pleasure by lectures and talks and enjoyed visiting some of our attractions. she was charmed with the broadway grammar school, where jean parker had achieved such wonderful results with the foreign girls of the north beach locality. i remember meeting a distinguished educator at a dinner, and i asked him if he had seen the school. he said he had. "what do you think of it?" i asked him. "i think it is the finest school in the world," he said. i took mrs. howe to a class. she was asked to say a few words, and in her beautiful voice she gained instant and warm attention. she asked all the little girls who spoke french in their homes to stand. many rose. then she called for spanish. many more stood. she followed with scandinavian and italian. but when she came to those who used english she found few. she spoke to several in their own tongue and was most enthusiastically greeted. i also escorted her across the bay to mills college, with which she was greatly pleased. she proved herself a good sport. with true bohemianism, she joined in luncheon on the ferryboat, eating ripe strawberries from the original package, using her fingers and enjoying the informality. she fitted every occasion with dignity or humor. in the pulpit at our church she preached a remarkably fine sermon. mozoomdar, the saintly representative of the brahmo somaj, was a highly attractive man. his voice was most musical, and his bearing and manner were beautiful. he seemed pure spirit and a type of the deeply religious nature. nor was he without humor. in speaking of his visit to england he said that his hosts generally seemed to think that for food he required only "an unlimited quantity of milk." politics has had a wide range in san francisco,--rotten at times, petty at others, with the saving grace of occasional idealism. the consolidation act and the people's party touched high-water mark in reform. with the lopping off of the san mateo end of the peninsula in , one board of supervisors was substituted for the three that had spent $ , , the year before. with e.w. burr at its head, under the new board expenditures were reduced to $ , . the people's party had a long lease of power, but in mccoppin was elected mayor. later came the reigns of little bosses, the specter of the big corporation boss behind them all, and then the triumph of decency under mcnab, when good men served as supervisors. then came the sinister triumph of ruef and the days of graft, cut short by the amazing exposure, detection, and overthrow of entrenched wickedness, and the administration of dr. taylor, a high idealist, too good to last. early in twenty-five gentlemen (five of whom were members of the chit-chat club) formed an association for the improvement and adornment of san francisco. d.h. burnham was invited to prepare a plan, and a bungalow was erected on a spur of twin peaks from which to study the problem. a year or more was given to the task, and in september, , a comprehensive report was made and officially sanctioned, by vote and publication. to what extent it might have been followed but for the event of april, , cannot be conjectured, but it is matter of deep regret that so little resulted from this very valuable study of a problem upon which the future of the city so vitally depends. it is not too late to follow its principal features, subject to such modifications as are necessary in the light of a good deal that we have accomplished since the report. san francisco's possibilities for beauty are very great. the earthquake and fire of april, , many san franciscans would gladly forget; but as they faced the fact, so they need not shrink from the memory. it was a never to be effaced experience of man's littleness and helplessness, leaving a changed consciousness and a new attitude. being aroused from deep sleep to find the solid earth wrenched and shaken beneath you, structures displaced, chimneys shorn from their bases, water shut off, railway tracks distorted, and new shocks recurring, induces terror that no imagination can compass. after breakfasting on an egg cooked by the heat from an alcohol lamp, i went to rescue the little i could from my office, and saw the resistless approaching fire shortly consume it. lack of provisions and scarcity of water drove me the next morning across the bay. two days afterward, leaving my motherless children, i returned to bear a hand in relief and restoration. every person going up market street stopped to throw a few bricks from the street to make possible a way for vehicles. for miles desolation reigned. in the unburned districts bread-lines marked the absolute leveling. bankers and beggars were one. very soon the mighty tide of relief set in, beginning with the near-by counties and extending to the ends of the earth. among our interesting experiences at red cross headquarters was the initiation of dr. devine into the habits of the earthquake. he had come from new york to our assistance. we were in session and j.s. merrill was speaking. there came a decidedly sharp shake. an incipient "oh!" from one of the ladies was smothered. mr. merrill kept steadily on. when he had concluded and the shock was over he turned to dr. devine and remarked: "doctor, you look a little pale. i thought a moment ago you were thinking of going out." dr. devine wanly smiled as he replied: "you must excuse me. remember that this is my first experience." i think i never saw a little thing give so much pleasure as when a man who had been given an old coat that was sent from mendocino county found in a pocket a quarter of a dollar that some sympathetic philanthropist had slipped in as a surprise. it seemed a fortune to one who had nothing. perhaps a penniless mother who came in with her little girl was equally pleased when she found that some kind woman had sent in a doll that her girl could have. one of our best citizens, frederick dohrmann, was in germany, his native land, at the time. he had taken his wife in pursuit of rest and health. they had received kindly entertainment from many friends, and decided to make some return by a california reception, at the town hostelry. they ordered a generous dinner. they thought of the usual wealth of flowers at a california party, and visiting a florist's display they bought his entire stock. the invited guests came in large numbers, and the host and hostess made every effort to emphasize their hospitality. but after they had gone mr. dohrmann remarked to his wife: "i somehow feel that the party has not been a success. the people did not seem to enjoy themselves as i thought they would." the next morning as they sought the breakfast-room they were asked if they had seen the morning papers. ordering them they found staring head-lines: "san francisco destroyed by an earthquake!" their guests had seen the billboards on their way to the party, but could not utterly spoil the evening by mentioning it, yet were incapable of merriment. mr. dohrmann and his wife returned at once, and though far from well, he threw himself into the work of restoration, in which no one was more helpful. the dreadful event, however, revealed much good in human nature. helpfulness in the presence of such devastation and suffering might be expected, but honor and integrity after the sharp call of sympathy was over have a deeper meaning. one of my best customers, the bancroft-whitney company, law publishers, having accounts with lawyers and law-booksellers all over the country, lost not only all their stock and plates but all their books of accounts, and were left without any evidence of what was owing them. they knew that exclusive of accounts considered doubtful there was due them by customers other than those in san francisco $ , . their only means of ascertaining the particulars was through those who owed it. they decided to make it wholly a matter of honor, and sent to the thirty-five thousand lawyers in the united states the following printed circular, which i printed at a hastily assembled temporary printing office across the bay: _to our friends and patrons_: _a_--we have lost all our records of accounts. _b_--our net loss will exceed $ , . simply a question of honor. _first_--will each lawyer in the country send us a statement of what he owes us, whether due or not due, and names of books covered by said statement on enclosed blank (blue blank). _second_--information for our records (yellow blank). _third_--send us a postal money order for all the money you can now spare. please fill out and send us as soon as possible the forms enclosed. may , . returns of money and of acknowledgment were prompt and encouraging. some of those considered doubtful were the first to acknowledge their indebtedness. before long they were able to reproduce their books and the acknowledged balances nearly equaled their estimated total of good accounts. remittances were made until over $ , was paid. of this amount about $ , covered accounts not included in their estimate of collectible indebtedness. this brought their estimated total to $ , , and established the fact that over eighty-five per cent of all that was owed them was acknowledged promptly under this call on honor. four years later they were surprised by the receipt of a check for $ from a lawyer in florida for a bill incurred long before, of which they had no memory. let those who scoff at ideals and bemoan the dishonesty of this materialistic age take note that money is not all, and let those who grudgingly admit that there are a few honest men but no honest lawyers take notice that even lawyers have some sense of honor. some few instances of escape are interesting. i have a friend who was living on the taylor street side of russian hill. when the quake came, his daughter, who had lived in japan and learned wise measures, immediately filled the bathtub with water. a doomed grocery-store near by asked customers to help themselves to goods. my friend chose a dozen large siphon bottles of soda water. the house was detached and for a time escaped, but finally the roof caught from flying embers and the fire was slowly extending. when the time came to leave the house a large american flag was raised to a conspicuous staff. a company of soldiers sent from the presidio for general duty saw the flag several blocks away, and made for the house to save the colors. finding the bathroom water supply, they mixed it with sand and plastered the burning spots. they arrested the spreading flames, but could not reach the fire under the cornice. then they utilized the siphon bottles; one soldier, held by his legs, hung over the roof and squirted the small stream on the crucial spot. the danger was soon over and the house was saved with quite a group of others that would have burned with it. while many individuals never recovered their property conditions or their nerve, it is certain that a new spirit was generated. great obstacles were overcome and determination was invincible. we were forced to act broadly, and we reversed the negative policy of doing nothing and owing nothing. we went into debt with our eyes open, and spent millions in money for the public good. the city was made safe and also beautiful. the city hall, the public library, and the auditorium make our civic center a source of pride. the really great exposition of was carried out in a way to increase our courage and our capacity. we have developed a fine public spirit and efficient co-operation. we need fear nothing in the future. we have character and we are gaining in capacity. vocation and avocation have about equally divided my time and energy during my residence in san francisco. i have done some things because i was obliged to and many others because i wished to. when one is fitted and trained for some one thing he is apt to devote himself steadily and profitably to it, but when he is an amateur and not a master he is sure to be handicapped. after about a year in the indian department a change in administration left me without a job. for about a year i was a bookkeeper for a stock-broker. then for another year i was a money-broker, selling currency, silver, and revenue stamps. when that petered out i was ready for anything. a friend had loaned money to a printer and seemed about to lose it. in i became bookkeeper and assistant in this printing office to rescue the loan, and finally succeeded. i liked the business and had the hardihood to buy a small interest, borrowing the necessary money from a bank at one per cent a month. i knew absolutely nothing of the art and little of business. it meant years of wrestling for the weekly pay-roll, often in apprehension of the sheriff, but for better or for worse i stuck to it and gradually established a good business. i found satisfaction in production and had many pleasant experiences. in illustration i reproduce an order i received in from fred beecher perkins, librarian of the recently established free public library. (he was father of charlotte perkins stetson.) san francisco free public library [handwritten: dec c.a. murdock & co gent. we need two hundred ( ) more of those blue chex. please make and deliver same pdq and oblige yours truly f.b. perkins librarian. p.s. the _substance_ of this order is official. the _form_ is slightly speckled with the spice of unofficiality. f.b.p.] [illustration: the clay street office the day after] in , as president of the san francisco typothetae, i had the great pleasure of cooperating with the president of the typographical union in giving a reception and dinner to george w. childs, of philadelphia. our relations were not always so friendly. we once resisted arbitrary methods and a strike followed. my men went out regretfully, shaking hands as they left. we won the strike, and then by gradual voluntary action gave them the pay and hours they asked for. when the earthquake fire of came i was unfortunately situated. i had lately bought out my partner and owed much money. to meet all my obligations i felt obliged to sell a controlling interest in the business, and that was the beginning of the end. i was in active connection with the printing business for forty-seven years. i am forced to admit that it would have been much to my advantage had i learned in my early life to say "no" at the proper time. the loss in scattering one's powers is too great to contemplate with comfort. i had a witty partner who once remarked, "i have great respect for james bunnell, for he has but one hobby at a time." i knew the inference. a man who has too many hobbies is not respectable. he is not even fair to the hobbies. i have always been overloaded and so not efficient. it is also my habit to hold on. it seems almost impossible to drop what i have taken up, and while there is gain in some ways through standing by there is gross danger in not resolutely stopping when you have enough. in addition to the activities i have incidentally mentioned i have served twenty-five years on the board of the associated charities, and still am treasurer. i have been a trustee of the california school of mechanical arts for at least as long. i have served for years on the board of the babies aid, and also represent the protestant charities on the home-finding agency of the native sons and daughters. it is an almost shameful admission of dissipation. no man of good discretion spreads himself too thin. when i was relieved from further public service, and had disposed of the printing business, it was a great satisfaction to accept the field secretaryship of the american unitarian association for the pacific coast. i enjoyed the travel and made many delightful acquaintances. it was an especial pleasure to accompany such a missionary as dr. william l. sullivan. in we visited most of the churches on the coast, and it was a constant pleasure to hear him and to see the gladness with which he was always received, and the fine spirit he inspired. i have also found congenial occupation in keeping alive _the pacific unitarian_. thirty years is almost venerable in the life of a religious journal. i have been favored with excellent health and with unnumbered blessings of many kinds. i rejoice at the goodness and kindness of my fellow men. my experience justifies my trustful and hopeful temperament. i believe "the best is yet to be." i am thankful that my lot has been cast in this fair city. i love it and i have faith in its future. there have been times of trial and of fear, but time has told in favor of courage not to be lost and deep confidence in final good. it cannot be doubted that the splendid achievement of the panama-pacific exposition gave strong faith in power to withstand adverse influences and temporary weakness. when we can look back upon great things we have accomplished we gain confidence in ability to reach any end that we are determined upon. it is manifest that a new spirit, an access of faith, has come to san francisco since she astonished the world and surprised herself by creating the magnificent dream on the shores of the bay. at its conclusion a few of us determined it should not be utterly lost. we formed an exposition preservation league through which we salvaged the palace of fine arts, the most beautiful building of the last five centuries, the incomparable marina, a connected driveway from black point to the presidio, the lagoon, and other features that will ultimately revert to the city, greatly adding to its attractiveness. fifty years of municipal life have seen great advance and promise a rich future. materially they have been as prosperous as well-being demands or as is humanly safe--years of healthy growth, free of fever and delirium, in which natural resources have been steadily developed and we have somewhat leisurely prepared for world business on a large scale. in population we have increased from about , to about , , which is an average advance from decade to decade of thirty-three per cent. bank clearances are considered the best test of business. our clearing house was established in , and the first year the total clearances were $ , . we passed the million mark in , and in they reached $ , , , . in our combined exports and imports were about $ , , . in they were $ , , , giving california fourth rank in the national record. the remarkable feature in all our records is the great acceleration in the increase in the years since the disaster of . savings bank receipts in are twice as large as in , postal receipts three times as large, national bank resources four times as large, national bank deposits nine times as large. there can be no reasonable doubt that san francisco is to be a very important industrial and commercial city. every indication leads to this conclusion. the more important consideration of character and spirit cannot be forecast by statistics, but much that has been accomplished and the changed attitude on social welfare and the humanities leave no doubt on the part of the discerning that we have made great strides and that the future is full of promise. chapter vii incidents in public service at twenty-two i found myself register of the humboldt land office, with offices on the first floor of a building at eureka, the second story of which was occupied by a school. an open veranda extended across the front. when i first let myself into the office, i carelessly left the key in the lock. a mischievous girl simply gave it a turn and i was a prisoner, with a plain but painful way of escape--not physically painful, but humiliating to my official pride. there was nothing for it but ignominiously to crawl out of the window onto the veranda and recover the key--and that i forthwith did. the archives of the office proved interesting. the original register was a missouri congressman, who had been instructed to proceed to humboldt city and open the office. humboldt city was on the map and seemed the logical location. but it had "died aborning" and as a city did not exist. so the register took the responsibility of locating the office at eureka, and in explanation addressed to the president, whom he denominated "buckhannan," a letter in which he went at length into the "hole" subject. the original draft was on file. i was authorized to receive homestead applications, to locate land warrants, to hear contests, and to sell "offered land." the latter was government land that had been offered for sale at $ . an acre and had not been taken. strangely enough, it embraced a portion of the redwood belt along mad river, near arcata. but one man seemed aware of the opportunity. john preston, a tanner of arcata, would accumulate thirty dollars in gold and with it buy fifty dollars in legal-tender notes. then he would call and ask for the plat, and, after considerable pawing, he would say, "well, charlie, i guess i'll take that forty." whereupon the transaction would be completed by my taking his greenbacks and giving him a certificate of purchase for the forty acres of timber-land that had cost him seventy-five cents an acre, and later probably netted him not less than three hundred dollars an acre for stumpage alone. today it would be worth twice that. the opportunity was open to all who had a few cents and a little sense. sales of land were few and locations infrequent, consequently commissions were inconsiderable. now and then i would hold a trial between conflicting claimants, some of them quite important. it was natural that the respective attorneys should take advantage of my youth and inexperience, for they had known me in my verdant boyhood and seemed to rejoice in my discomfiture. i had hard work to keep them in order. they threatened one another with ink-bottles and treated me with contempt. they would lure me on when i rejected evidence as inadmissible, offering slightly changed forms, until i was forced to reverse myself. when i was uncertain i would adjourn court and think it over. these were trying experiences, but i felt sure that the claimants' rights would be protected on appeal to the commissioner of the general land office and finally to the secretary of the interior. i was glad that in the biggest case i guessed right. one occurrence made a strong impression on me. it was war-time, and loyalty was an issue. a rancher from mendocino county came to eureka to prove up on his land and get a patent. he seemed to me a fine man, but when he was asked to take the oath of allegiance he balked. i tried my best to persuade him that it was harmless and reasonable, but he simply wouldn't take it, and went back home without his patent. my experiences while chief clerk in the office of the superintendent of indian affairs are too valuable to be overlooked. i traveled quite freely and saw unfamiliar life. i had a very interesting trip in , to inspect the round valley indian reservation and to distribute clothing to the indians. it was before the days of railroads in that part of california. two of us drove a light wagon from petaluma to ukiah, and then put saddles on our horses and started over the mountains to the valley. we took a cold lunch, planning to stay overnight at a stockman's ranch. when we reached the place we found a notice that he had gone to a rodeo. we broke into his barn to feed our horses, but we spared his house. failing to catch fish in the stream near by, we made our dinner of its good water, and after a troubled night had the same fare for breakfast. for once in my life i knew hunger. to the nearest ranch was half a day's journey, and we lost no time in heading for it. on the way i had an encounter with a vicious rattlesnake. the outcome was more satisfactory than it might have been. at noon, when we found a cattleman whose indian mate served venison and hot bread of good quality and abundant quantity, we were appreciative and happy. the remainder of the trip was uneventful. the equal division of clothing or supplies among a lot of indians throws helpful light on the causes of inequality. a very few days suffice to upset all efforts at impartiality. a few, the best gamblers, soon have more than they need, while the many have little or nothing. the valleys of mendocino county are fascinatingly beautiful, and a trip direct to the coast, with a spin along ten miles of perfect beach as we returned, was a fine contrast to hungry climbing over rugged heights. another memorable trip was with two indians from the mouth of the klamath river to its junction with the trinity at weitchpec. the whole course of the stream is between lofty peaks and is a continuous series of sharp turns. after threading its winding way, it is easy to understand what an almost solid resistance would be presented to a rapidly rising river. with such a watershed as is drained by the two rivers, the run-off in a storm would be so impeded as to be very slow. the actual result was demonstrated in . in august of that year, a.s. hallidie built a wire bridge at weitchpec. he made the closest possible examination as to the highest point the river had reached. in an indian rancheria he found a stone door-sill that had been hollowed by constant use for ages. this was then ninety-eight feet above the level of the flowing river. he accepted it as absolutely safe. in december, , the river rose thirty feet above the bridge and carried away the structure. the indians living on lower mad river had been removed for safety to the smith river indian reservation. they were not happy and felt they might safely return, now that the indian war was over. the white men who were friendly believed that if one of the trusted indians could be brought down to talk with his friends he could satisfy the others that it would be better to remain on the reservation. it was my job to go up and bring him down. we came down the beach past the mouth of the klamath, gold bluff, and trinidad, to fort humboldt, and interviewed many white settlers friendly to the indians until the representative was satisfied as to the proper course to follow. in "gold bluff" was the first great mining excitement. the klamath river enters the ocean just above the bluff that had been made by the deposit of sand, gravel, and boulders to the height of a hundred feet or more. the waves, beating against the bluff for ages, have doubtless washed gold into the ocean's bed. in it was discovered that at certain tides or seasons there were deposited on the beach quantities of black sand, mingled with which were particles of gold. nineteen men formed a company to take up a claim and work the supposedly exhaustless deposit. an expert report declared that the sand measured would yield each of the men the modest sum of $ , , . great excitement stirred san francisco and eight vessels left with adventurers. but it soon was found that black sand was scarce and gold much more so. for some time it paid something, but as a lure it soon failed. when i was first there i was tremendously impressed when shown at the level of the beach, beneath the bluff and its growing trees, an embedded redwood log. it started the imagination on conjectures of when and where it had been clad in beauty as part of a living landscape. an interesting conclusion to this experience was traveling over the state with charles maltby, appointed to succeed my friend, to turn over the property of the department. he was a personal friend of president lincoln, and he bore a striking resemblance to him and seemed like him in character. in a nominee for the assembly from san francisco declined the honor, and it devolved on a group of delegates to select a candidate in his place. they asked me to run, and on the condition that i should solicit no votes and spend no money i consented. i was one of four republicans elected from san francisco. in the entire state we were outnumbered about four to one. but politics ordinarily cuts little figure. the only measure i introduced provided for the probationary treatment of juvenile delinquents through commitment to an unsectarian organization that would seek to provide homes. i found no opposition in committee or on the floor. when it was reached i would not endanger its passage by saying anything for it. it passed unanimously and was concurred in by the senate. my general conclusion is that the average legislator is ready to support a measure that he feels is meritorious and has no other motive than the general good. we were summoned in extra session to act on matters affecting the railroads. it was at a time when they were decidedly in politics. the central pacific was generally credited with controlling the legislative body of the state. a powerful lobby was maintained, and the company was usually able to thwart the passage of any legislation the political manager considered detrimental to its interests. the farmers and country representatives did all in their power to correct abuses and protect the interests of the people of the state, but the city representatives, in many instances not men of character, were usually controlled by some boss ready to do the bidding of the railroad's chief lobbyist. the hope for decency is always in free men, and they generally are from the country. it was pathetic at times to watch proceedings. i recall one instance, where a young associate from san francisco had cast a vote that was discreditable and pretty plainly indicated corrupt influence. the measure he supported won a passage, but a motion for reconsideration carried, and when it came up the following day the father of the young man was seated by his side as the vote was taken. he was a much-respected plasterer, and he came from his home on a hurried call to save his son from disgrace. it was a great relief when on recall the son reversed his vote and the measure was lost. of course, there were punitive measures, unreasonable and unjust, and some men were afraid to be just if the railroad would in any way be benefited. i tried to be discriminating and impartial, judging each measure on its merits. i found it was a thankless task and bred suspicion. an independent man is usually distrusted. at the end of the session a fine old farmer, consistently against the railroad, said to me: "i couldn't make you out for a long time. some days i gave you a white mark, and some days a black one. i finally give you a white mark--but it was a close shave." i was impressed with the power of the speaker to favor or thwart legislation. at the regular session some senator had introduced a bill favoring the needs of the university of california. he wanted it concurred in by the assembly, and as the leading democrats were pretty busy with their own affairs he entrusted it to me. the speaker favored it, and he did not favor a bill in the hands of a leader of the house involving an appropriation. he called me to his seat and suggested that at the reassembling of the assembly after luncheon i should take the floor to move that the bill be placed on the first-reading file. he knew that the leader would be ready with his pet bill, but he would recognize me. when the gavel fell after luncheon three men leaped for the floor. i arose well at the side of the chamber, while the leader stood directly in front, but the speaker happened (?) to see me first, and the entrusted bill started for speedy success. it is always pleasant to discover unsuspected humor. there was a very serious-appearing country member who, with the others of a committee, visited the state prison at san quentin. we were there at the midday meal and saw the prisoners file in to a substantially laden table. he watched them enjoy the spread, and quietly remarked, "a man who wouldn't be satisfied with such food as that deserves to be turned out of the state prison." some reformer had introduced a bill providing for a complete new code of criminal procedure. it had been referred to the appropriate committee and in due time it made its report. i still can see the committee chairman, a country doctor, as he stood and shook a long finger at the members before him, saying: "mr. speaker, we ask that this measure be read in full to the assembly. i want you to know that i have been obliged to hear it, and i am bound that every member of the house shall hear it." my conclusion at the end of the session was that the people of the state were fortunate in faring no worse. the many had little fitness; a few had large responsibility. doubtful and useless measures predominate, but they are mostly quietly smothered. the country members are watchful and discriminating and a few leaders exercise great power. to me it was a fine experience, and i made good friends. i was interested in proposed measures, and would have willingly gone back the next term. some of my friends sounded the political boss of the period and asked if i could be given a place on the ticket. he smiled and said, "we have no use for him." when the nominating convention was held he sent in by a messenger a folded piece of paper upon which was inscribed the name of the man for whom they had use--and my legislative career was at an end. i went back to my printing business, which never should have been neglected, and stayed mildly by it for eleven years. then, there being a vacancy on the board of education, i responded to the wish of friends and accepted the appointment to help them in their endeavor to better our schools. john swett, an experienced educator, was superintendent. the majority of the board was composed of high-minded and able men. they had turned over the selection of teachers to the best-fitted professors of the university and were giving an economical and creditable administration. if a principalship was vacant, applications were apt to be disregarded, and the person in the department considered most capable and deserving was notified of election. there were, however, some loose methods. all graduates of the high schools were privileged to attend a normal class for a year and then were eligible without any examination to be appointed teachers. the board was not popular with the teachers, many of whom seemed to consider that the department was mainly for their benefit. at the end of the unexpired term i was elected a member of the succeeding board, and this was continued for five years. when the first elected board held a preliminary canvass i naturally felt much interest as to my associates, some of whom were entire strangers. among them was henry t. scott, of the firm of shipbuilders who had built the "oregon." some one remarked that a prominent politician (naming him) would like to know what patronage would be accorded him. mr. scott very forcibly and promptly replied: "so far as i am concerned, not a damned bit. i want none for myself, and i will oppose giving any to him or anyone else." i learned later that he had been elected without being consulted, while absent in the east. upon his return a somewhat notorious woman principal called on him and informed him that she was responsible for his election--at least, his name had been submitted to her and received her approval. he replied that he felt she deserved no thanks for that, as he had no desire to serve. she said she had but one request to make; her janitress must not be removed. he gave her no assurances. soon afterward the matter of appointments came up. mr. scott was asked what he wanted, and he replied: "i want but one thing. it involves the janitress of mrs. ----'s school. i want her to be removed immediately." "all right," replied the questioner. "whom shall we name?" "whomever you please," rejoined scott. "i have no candidate; but no one can tell me what i must or must not do." substitution followed at once. later mr. scott played the star part in the most interesting political struggle i ever knew. a democratic victory placed in the superintendent's office a man whose christian name was appropriately andrew jackson. he had the naming of his secretary, who was ex-officio clerk of the board, which confirmed the appointment. one george beanston had grown to manhood in the office and filled it most satisfactorily. the superintendent nominated a man with no experience, whom i shall call wells, for the reason that it was not his name. mr. scott, a democratic member, and i were asked to report on the nomination. the superintendent and the committee discussed the matter at a pleasant dinner at the pacific-union club, given by chairman scott. at its conclusion the majority conceded that usage and courtesy entitled the superintendent to the appointment. feeling that civil service and the interest of the school department were opposed to removal from position for mere political differences, i demurred and brought in a minority report. there were twelve members, and when the vote to concur in the appointment came up there was a tie, and the matter went over for a week. during the week one of the beanston supporters was given the privilege of naming a janitor, and the suspicion that a trade had been made was justified when on roll-call he hung his head and murmured "wells." the cause seemed lost; but when later in the alphabetical roll scott's name was reached, he threw up his head and almost shouted "beanston," offsetting the loss of the turncoat and leaving the vote still a tie. it was never called up again, and beanston retained the place for another two years. early in i was called up on the telephone and asked to come to mayor phelan's office at once. i found there some of the most ardent civil service supporters in the city. richard j. freud, a member of the civil service commission, had suddenly died the night before. the vacancy was filled by the mayor's appointment. eugene schmitz had been elected mayor and would take his seat the following day, and the friends of civil service distrusted his integrity. they did not dare to allow him to act. haste seemed discourteous to the memory of freud, but he would want the best for the service. persuaded of the gravity of the matter, i accepted the appointment for a year and filed my commission before returning to my place of business. i enjoyed the work and its obvious advantage to the departments under its operation. the police department especially was given an intelligent and well-equipped force. an amusing incident of an examination for promotion to the position of corporal concerned the hopes we entertained for the success of a popular patrolman. but he did not apply. one day one of the board met him and asked him if he was not to try for it. "i think not," he replied. "my early education was very unlimited. what i know, i know; but i'll be damned if i'm going to give you fellows a chance to find out what i don't know!" i chanced to visit washington during my term as commissioner, and through the courtesy of senator perkins had a pleasant call on president roosevelt. a senator seems to have ready access to the ordinary president, and almost before i realized it we were in the strenuous presence. a cordial hand-clasp and a genial smile followed my introduction, and as the senator remarked that i was a civil service commissioner, the president called: "shake again. i used to be one of those fellows myself." senator perkins went on: "mr. murdock and i have served for many years as fellow trustees of the boys and girls aid society." "ah," said the president, "modeled, i presume, on brace's society, in which my father was greatly interested. do you know i believe work with boys is about the only hope? it's pretty hard to change a man, but when you can start a boy in the right way he has a chance." turning to me he remarked, "did you know that governor brady of alaska was one of brace's placed-out boys!" then of perkins he asked, "by the way, senator, how is brady doing?" "very well, i understand," replied the senator. "i believe he is a thoroughly honest man." "yes; but is he also able? it is as necessary for a man in public life to be able as to be honest." he bade us a hearty good-by as we left him. he impressed me as untroubled and courageous, ready every day for what came, and meeting life with cheer. the story of the moral and political revolution of has never been adequately told, nor have the significance and importance of the event been fully recognized. the facts are of greater import than the record; but an eyewitness has responsibility, and i feel moved to give my testimony. perhaps so complete a reversal of spirit and administration was never before reached without an election by the people. the faithfulness and nerve of one official backed by the ability of a detective employed by a public-spirited citizen rescued the city government from the control of corrupt and irresponsible men and substituted a mayor and board of supervisors of high character and unselfish purpose. this was accomplished speedily and quietly. with positive proof of bribery that left conviction and a term in prison as the alternative to resignation, district attorney william h. langdon had complete control of the situation. in consultation with those who had proved their interest in the welfare of the city, he asked edward robeson taylor to serve as mayor, privileged to select sixteen citizens to act as supervisors in place of the implicated incumbents, who would be induced to resign. dr. taylor was an attorney of the highest standing, an idealist of fearless and determined character. no pledges hampered him. he was free to act in redeeming the city. in turn, he asked no pledge or promise of those whom he selected to serve as supervisors. he named men whom he felt he could trust, and he subsequently left them alone, asking nothing of them and giving them no advice. it was the year after the fire. i was conducting a substitute printing-office in the old car-barn at geary and buchanan streets. one morning dr. taylor came in and asked if he might speak to me in private. i was not supplied with facilities for much privacy, but i asked him in and we found seats in the corner of the office farthest from the bookkeeper. without preliminary, he said, "i want you to act as one of the supervisors." wholly surprised, i hesitated a moment and then assured him that my respect for him and what he had undertaken was so great that if he was sure he wanted me i would serve. he went out with no further comment, and i heard nothing more of it until i received a notice to meet at his office in the temporary city hall on july th. in response to the call i found fifteen other men, most of whom i knew slightly. we seemed to be waiting for something. mr. langdon was there and mr. burns, the detective, was in and out. mr. gallagher, late acting mayor and an old-time friend of the district attorney, was helping in the transfer, in which he was included. langdon would suggest some procedure: "how will this do, jim?" "it seems to me, billy, that this will be better," gallagher would reply. burns finally reported that the last of the "bunch" had signed his resignation and that we could go ahead. we filed into the boardroom. mayor taylor occupied the chair, to which the week before he had been obediently but not enthusiastically elected by "those about to die." the supervisor alphabetically ranking offered his written resignation, which the mayor promptly accepted. he then appointed as successor the first, alphabetically, on his list. the deputy county clerk was conveniently near and promptly administered the oath and certified the commission. the old member slunk or swaggered out and the new member took his place. so the dramatic scene continued until the transformation was accomplished and a new era dawned. the atmosphere was changed, but was very serious and determined. everyone felt the gravity of the situation and that we had no easy task ahead. solemnity marked the undertaking and full realization that hard work alone could overcome obstacles and restore endurable conditions. many of the men selected by dr. taylor had enjoyed experience and all were anxious to do their best. with firm grasp and resolute procedure, quick results followed. there was to be an election in november. some of the strongest members had accepted service as an emergency call and could not serve longer; but an incredible amount of planning was accomplished and a great deal disposed of, so that though ten of the appointed board served but six months they had rendered a great service and fortunately were succeeded by other men of character, and the good work went steadily on. in looking back to the problems that confronted the appointed board and the first elected board, also headed by dr. taylor, they seem insurmountable. it is hard now to appreciate the physical conditions of the city. it was estimated that not less than five million dollars would be required to put the streets into any decent condition. it was at first proposed to include this, sum in the bond issue that could not be escaped, but reflection assured us that so temporary a purpose was not a proper use of bond money, and we met the expenditure from the annual tax levy. we found the smallest amount required for urgent expenditure in excess of the tax levy was $ , , , and at a special election held early in the voters endorsed the proposed issue by a vote of over , to . the three largest expenditures were for an auxiliary water system for fire protection ($ , , ), for school buildings ($ , , ), and for sewers ($ , , ). i cannot follow the various steps by which order was brought out of chaos, nor can i give special acknowledgment where it is manifestly due; but i can bear testimony to the unselfishness and faithfulness of a remarkable body of public officials and to a few of the things accomplished. to correct gross evils and restore good conditions is no slight task; but to substitute the best for the worst is a great achievement. this san francisco has done in several marked instances. there was a time when about the only thing we could boast was that we spent a _less_ sum per capita than any city in the union for the care of hospital patients. i remember hearing that fine citizen, frederick dohrmann, once say, "every supervisor who has gone out of public service leaving our old county hospital standing is guilty of a municipal crime." it was a disgrace of which we were ashamed. the fire had spared the building, but the new supervisors did not. we now have one of the best hospitals in the country, admirably conducted. our city prison is equally reversed. it was our shame; it is our pride. the old almshouse was a discreditable asylum for the politician who chanced to superintend it. today our "relief home" is a model for the country. in the city was destroyed because unprotected against fire. today we are as safe as a city can be. in the meantime the reduced cost of insurance pays insured citizens a high rate of interest on the cost of our high-pressure auxiliary fire system. our streets were once noted for their poor construction and their filthy condition. recently an informed visitor has pronounced them the best to be found. we had no creditable boulevards or drives. quietly and without bond expenditure we have constructed magnificent examples. our school buildings were shabby and poor. many now are imposing and beautiful. this list could be extended; but turn for a moment to matters of manners. where are the awful corner-groceries that helped the saloons to ruin men and boys, and where are the busy nickel-in-the-slot machines and shameless smokers in the street-cars? where are the sellers of lottery tickets, where the horse-races and the open gambling? it was my fortune to be re-elected for eight years. sometimes i am impressed by how little i seem to have individually accomplished in this long period of time. one effect of experience is to modify one's expectations. it is not nearly so easy to accomplish things as one who has not tried is apt to imagine. reforming is not an easy process. inertia is something really to be overcome, and one is often surprised to find how obstinate majorities can be. initiative is a rare faculty and an average legislator must be content to follow. one can render good service sometimes by what he prevents. again, he may finally fail in some good purpose through no fault of his own, and yet win something even in losing. early in my term i was convinced that one thing that ought to be changed was our absurd liquor license. we had by far the lowest tax of any city in the union, and naturally had the largest number of saloons. i tried to have the license raised from eighty-four dollars to one thousand dollars, hoping to reduce our twenty-four hundred saloons. i almost succeeded. when i failed the liquor interest was so frightened at its narrow escape that it led the people to adopt a five-hundred-dollar substitute. i was led to undertake the correction of grave abuses and confusion in the naming of the city streets. the post-office authorities were greatly hampered in the mail delivery by the duplicate use of names. the dignified word "avenue" had been conferred on many alleys. a commission worked diligently and efficiently. one set of numbered streets was eliminated. the names of men who had figured in the history of the city were given to streets bearing their initials. anza, balboa, and cabrillo gave meaning to a, b, and c. we gave columbus an avenue, lincoln a "way," and substituted for east street the original name of the waterfront, "the embarcadero." in all we made more than four hundred changes and corrections. there were occasional humorous incidents connected with this task. there were opposition and prejudice against names offered. some one proposed a "st. francis boulevard." an apparently intelligent man asked why we wanted to perpetuate the name of "that old pirate." i asked, "who do you think we have in mind?" he replied, "i suppose you would honor sir francis drake." he seemed never to have heard of saint francis of assisi. it was predicted that the taylor administration with its excellent record would be continued, but at the end of two years it went down to defeat and the workingmen's party, with p.h. mccarthy as mayor, gained strong control. for two years, as a minority member, i enjoyed a different but interesting experience. it involved some fighting and preventive effort; but i found that if one fought fairly he was accorded consideration and opportunity. i introduced a charter amendment that seemed very desirable, and it found favor. the charter prescribed a two-year term for eighteen supervisors and their election each alternate year. under the provision it was possible to have every member without experience. by making the term four years and electing nine members every other year experience was assured, and the ballot would be half the length, a great advantage. it had seemed wise to me to allow the term of the mayor to remain two years, but the friends of mayor mccarthy were so confident of his re-election that they insisted on a four-year term. as so amended the matter went to the people and was adopted. at the following election mayor james rolph, jr., was elected for four years, two of which were an unintentional gift of his political opponents. i served for four years under the energetic rolph, and they were fruitful ones. most of the plans inaugurated by the taylor board were carried out, and materially the city made great strides. the exposition was a revelation of what was possible, and of the city hall and the civic center we may well be proud. some of my supervisorial experiences were trying and some were amusing. discussion was often relieved by rare bits of eloquence and surprising use of language. pronunciation was frequently original and unprecedented. amazing ignorance was unconcealed and the gift of gab was unrestrained. nothing quite equaled in fatal facility a progress report made by a former member soon after his debut: "we think we shall soon be able to bring chaos out of the present disorder, now existing." on one of our trips of investigation the city engineer had remarked on the watershed. one of the members later cornered him and asked "where is the watershed?" expecting to be shown a building that had escaped his attention. a pleasant episode of official duty early in rolph's term was an assignment to represent the city at a national municipal congress at los angeles. we were called upon, in connection with a study of municipal art, to make an exhibit of objects of beauty or ornament presented to the city by its citizens. we felt that san francisco had been kindly dealt with, but were surprised at the extent and variety of the gifts. enlarged sepia photographs of structures, monuments, bronzes, statuary, and memorials of all kinds were gathered and framed uniformly. there were very many, and they reflected great credit and taste. properly inscribed, they filled a large room in los angeles and attracted much attention. interest was enhanced by the cleverness of the young woman in charge. the general title of the collection was "objects of art presented by its citizens to the city of san francisco." she left a space and over a conspicuous panel printed the inscription "objects of art presented by its citizens to the city of los angeles." the panel was empty. the ordinarily proud city had nothing to show. moses at pisgah gazed upon the land he was not to enter. my pisgah was reached at the end of . my halls of service were temporary. the new city hall was not occupied until just after i had found my political moab; the pleasure of sitting in a hall which is pronounced the most beautiful in america was not for me. as i look back upon varied public service, i am not clear as to its value; but i do not regret having tried to do my part. my practical creed was never to seek and never to decline opportunity to serve. i feel that the effort to do what i was able to do hardly justified itself; but it always seemed worth trying, and i do not hold myself responsible for results. i am told that in parts of california infinitesimal diatoms form deposits five thousand feet in thickness. if we have but little to give we cannot afford not to give it. chapter viii an investment on the morning of october , , there appeared in san francisco's morning paper the following notice: religious intelligence there will be religious services (unitarian) on sunday morning next, october th, at simmons' athenaeum hall. entrance on commercial and sacramento streets. a discourse will be preached by rev. charles a. farley. san francisco at this time was a community very unlike any known to history. two years before it is said to have numbered eight hundred souls, and two years before that about two hundred. during the year , perhaps thirty thousand men had come from all over the world, of whom many went to the mines. the directory of that year contained twenty-five hundred names. by october, , the population may have been twenty thousand. they were scattered thinly over a hilly and rough peninsula, chaparral-covered but for drifting sand and with few habitable valleys. from pacific to california streets and from dupont to the bay was the beginning of the city's business. a few streets were graded and planked. clay street stretched up to stockton. to the south mountains of sand filled the present market street, and protected by them nestled happy valley, reaching from first to third streets and beyond mission. in it was a city of tents. wharves were pushing out into the bay. long wharf (commercial street) reached deep water about where drumm street now crosses it. among the motley argonauts were a goodly number of new englanders, especially from boston and maine. naturally some of them were unitarians. it seems striking that so many of them were interested in holding services. they had all left "home" within a year or so, and most of them expected to go back within two years with their respective fortunes. when it was learned that a real unitarian minister was among them, they arranged for a service. the halls of the period were west of kearny street in sacramento and california. they secured the athenaeum and gave notice in the _alta california_. it is significant that the day the notice appeared proved to be historical. the steamer "oregon" was due, and it was hoped she would bring the news of favorable action by congress on the application of california to be admitted into the union. when in the early forenoon the steamer, profusely decorated with bunting, rounded clark's point assurance was given, and by the time she landed at commercial and drumm the town was wild with excitement. [illustration: thomas starr king. san francisco, - ] eastern papers sold readily at a dollar a copy. all day and night impromptu celebrations continued. unnumbered silk hats (commonly worn by professional men and leading merchants) were demolished and champagne flowed freely. it should be remembered that thirty-nine days had elapsed since the actual admission, but none here had known it. the pilgrim yankees must have felt like going to church now that california was a part of the union and that another free state had been born. at any rate, the service conducted by rev. charles a. farley was voted a great success. one man had brought a service-book and another a hymnbook. four of the audience volunteered to lead the singing, while another played an accompaniment on the violin. after the services twenty-five men remained to talk things over, and arranged to continue services from week to week. on november , , "the first unitarian church of san francisco" was organized, captain frederick w. macondray being made the first moderator. mr. farley returned to new england in april, , and services were suspended. then occurred two very serious fires, disorganizing conditions and compelling postponement. it was more than a year before an attempt was made to call another minister. in may, , rev. joseph harrington was invited to take charge of the church. he came in august and began services under great promise in the united states district court building. a few weeks later he was taken alarmingly ill, and died on november d. it was a sad blow, but the society withstood it calmly and voted to complete the building it had begun in stockton street, near sacramento. rev. frederic t. gray, of bulfinch street chapel, boston, under a leave of absence for a year, came to california and dedicated the church on july , . this was the beginning of continuous church services. on the following sunday, pilgrim sunday-school was organized. mr. gray, a kind and gentle soul, rendered good service in organizing the activities of the church. he was succeeded by rev. rufus p. cutler, of portland, maine, a refined, scholarly man, who served for nearly five years. he resigned and sailed for new york in june, . during his term the sunday-school prospered under the charge of samuel l. lloyd. rev. j.a. buckingham filled the pulpit for ten months preceding april , , when thomas starr king arrived. the next day mr. king faced a congregation that crowded the church to overflowing and won the warm and enthusiastic regard of all, including many new adherents. with a winning personality, eloquent and brilliant, he was extraordinarily attractive as a preacher and as a man. he had great gifts and he was profoundly in earnest--a kindly, friendly, loving soul. in i planned to pass through the city on sunday with the possibility of hearing him. the church was crowded. i missed no word of his wonderful voice. he looked almost boyish, but his eyes and his bearing proclaimed him a man, and his word was thrilling. i heard him twice and went to my distant home with a blessed memory and an enlarged ideal of the power of a preacher. few who heard him still survive, but a woman of ninety-three years who loves him well vividly recalls his second service that led to a friendship that lasted all his life. in his first year he accomplished wonders for the church. he had felt on coming that in a year he should return to his devoted people in the hollis street church of boston. but when fort sumter was fired upon he saw clearly his appointed place. he threw himself into the struggle to hold california in the union. he lectured and preached everywhere, stimulating patriotism and loyalty. he became a great national leader and the most influential person on the pacific coast. he turned california from a doubtful state to one of solid loyalty. secession defeated, he accomplished wonders for the sanitary commission. a large part of he gave to the building of the beautiful church in geary street near stockton. it was dedicated in january, . he preached in it but seven sundays, when he was attacked with a malady which in these days is not considered serious but from which he died on march th, confirming a premonition that he would not live to the age of forty. he was very deeply mourned. it was regarded a calamity to the entire community. to the church and the denomination the loss seemed irreparable. to dr. henry w. bellows, of new york, the acknowledged unitarian leader, was entrusted the selection of the one to fill the vacant pulpit. he knew the available men and did not hesitate. he notified horatio stebbins, of portland, maine, that he was called by the great disaster to give up the parish he loved and was satisfied to serve and take the post of the fallen leader on the distant shore. dr. bellows at once came to san francisco to comfort the bereaved church and to prepare the way for mr. stebbins, who in the meantime went to new york to minister to dr. bellows' people in his absence. it was during the brief and brilliant ministry of dr. bellows that good fortune brought me to san francisco. dr. bellows was a most attractive preacher, persuasive and eloquent. his word and his manner were so far in advance of anything to which i was accustomed that they came as a revelation of power and beauty. i was entranced, and a new world of thought and feeling opened before me. life itself took on a new meaning, and i realized the privilege offered in such a church home. i joined without delay, and my connection has been uninterrupted from that day to this. for over fifty-seven years i have missed few opportunities to profit by its services. i speak of it not in any spirit of boasting, but in profound gratitude. physical disability and absence from the city have both been rare. in the absence of reasons i have never felt like offering excuses. early in september, horatio stebbins and family arrived from new york, and dr. bellows returned to his own church. the installation of the successor of starr king was an impressive event. the church building that had been erected by and for king was a beautiful and commodious building, but it would not hold all the people that sought to attend the installation of the daring man who came to take up the great work laid down by the preacher-patriot. he was well received, and a feeling of relief was manifest. the church was still in strong hands and the traditions would be maintained. on september th dr. stebbins stood modestly but resolutely in the pulpit so sanctified by the memory of king. few men have faced sharper trials and met them with more serenity and apparent lack of consciousness. it was not because of self-confidence or of failure to recognize what was before him. he knew very well what was implied in following such a man as starr king, but he was so little concerned with anything so comparatively unimportant as self-interest or so unessential as personal success that he was unruffled and calm. he indulged in no illusion of filling mr. king's place. he stood on his own feet to make his own place, and to do his own work in his own way, with such results as came, and he was undisturbed. toward the end of his life he spoke of always having preached from the level of his own mind. it was always true of him. he never strained for effect, or seemed unduly concerned for results. in one of his prayers he expresses his deep philosophy of life: "help us, each one in his place, in the place which is providentially allotted to us in life, to act well our part, with consecrated will, with pure affection, with simplicity of heart--to do our duty, and to leave the rest to god." it was wholly in that spirit that dr. stebbins took up the succession of thomas starr king. personally, i was very glad to renew my early admiration for mr. stebbins, who had chosen his first parish at fitchburg, adjoining my native town, and had always attracted me when he came to exchange with our minister. he was a strong, original, manly character, with great endowments of mind and heart. he was to enjoy a remarkable ministry of over thirty-five years and endear himself to all who knew him. he was a great preacher and a great man. he inspired confidence, and was broad and generous. he served the community as well as his church, being especially influential in promoting the interests of education. he was a kindly and helpful man, and he was not burdened by his large duties and responsibilities, he was never hurried or harassed. he steadily pursued his placid way and built up a really great influence. he was, above all else, an inspirer of steadfast faith. with a great capacity for friendship, he was very generous in it, and was indulgent in judgment of those he liked. i was a raw and ignorant young man, but he opened his great heart to me and treated me like an equal. twenty years difference in years seemed no barrier. he was fond of companionship in his travels, and i often accompanied him as he was called up and down the coast. in i went to the boston may meeting in his company and found delight in both him and it. he was a good traveler, enjoying the change of scene and the contact with all sorts of people. he was courteous and friendly with strangers, meeting them on their own ground with sympathy and understanding. in his own home he was especially happy, and it was a great privilege to share his table-talk and hospitality, for he had a great fund of kindly humor and his speech was bright with homely metaphor and apt allusions. not only was he a great preacher, he was a leader, an inspirer, and a provoker of good. what it meant to fall under the influence of such a man cannot be told. supplementing the blessing was the association with a number of the best of men among the church adherents. hardly second to the great and unearned friendship of dr. stebbins was that of horace davis, ten years my senior, and very close to dr. stebbins in every way. he had been connected with the church almost from the first and was a firm friend of starr king. like dr. stebbins, he was a graduate of harvard. scholarly, and also able in business, he typified sound judgment and common sense, was conservative by nature, but fresh and vigorous of mind. he was active in the sunday-school. we also were associated in club life and as fellow directors of the lick school. our friendship was uninterrupted for more than fifty years. i had great regard for mrs. davis and many happy hours were passed in their home. her interpretation of beethoven was in my experience unequaled. it is impossible even to mention the many men of character and conscience who were a helpful influence to me in my happy church life. captain levi stevens was very good to me; c. adolphe low was one of the best men i ever knew; i had unbounded respect for horatio frost; dr. henry gibbons was very dear to me; and charles r. bishop i could not but love. these few represent a host of noble associates. i would i could mention more of them. [illustration: horatio stebbins. san francisco, - ] we all greatly enjoyed the meetings of a shakespeare club that was sustained for more than twelve consecutive years among congenial friends in the church. we read half a play every other week, devoting the latter part of the evening to impromptu charades, in which we were utterly regardless of dignity and became quite expert. at our annual picnics we joined in the enjoyment of the children. i recall my surprise and chagrin at having challenged mr. davis to a footrace at belmont one year, giving him distance as an age handicap, and finding that i had overestimated the advantage of ten years difference. in we established the unitarian club of california. mr. davis was the first president. for seventeen years it was vigorous and prosperous. we enjoyed a good waiting-list and twice raised the limit of membership numbers. it was then the only forum in the city for the discussion of subjects of public interest. many distinguished visitors were entertained. booker t. washington was greeted by a large audience and so were susan b. anthony and anna h. shaw. as time passed, other organizations afforded opportunity for discussion, and numerous less formal church clubs accomplished its purpose in a simpler manner. a feature of strength in our church has been the william and alice hinckley fund, established in by the will of captain william c. hinckley, under the counsel and advice of dr. stebbins. his wife had died, he had no children, and he wanted his property to be helpful to others. he appointed the then church trustees his executors and the trustees of an endowment to promote human beneficence and charity, especially commending the aged and lonely and the interests of education and religion. shortly after coming to san francisco, in , he had bought a lot in bush street for sixty dollars. at the time of his death it was under lease to the california theater company at a ground rent of a thousand dollars a month. after long litigation, the will was sustained as to $ , , the full proportion of his estate allowed for charity. i have served as secretary of the trust fund for forty years. i am also surviving trustee for a library fund of $ , and another charity fund of $ . these three funds have earned in interest more than $ , . we have disbursed for the purposes indicated $ , , and have now on hand as capital more than $ , , the interest on which we disburse annually. it has been my fortune to outlive the eight trustees appointed with me, and, also, eight since appointed to fill vacancies caused by death or removal. we worshiped in the geary and stockton church for more than twenty-three years, and then concluded it was time to move from a business district to a residential section. we sold the building with the lot that had cost $ , for $ , , and at the corner of franklin and geary streets built a fine church, costing, lot included, $ , . during construction we met in the synagogue emanu-el, and the sunday-school was hospitably entertained in the first congregational church, which circumstances indicate the friendly relations maintained by our minister, who never arraigned or engaged in controversy with any other household of faith. in the new church was dedicated, dr. hedge writing a fine hymn for the occasion. dr. stebbins generally enjoyed robust health, but in he was admonished that he must lay down the work he loved so well. in september of that year, at his own request, he was relieved from active service and elected minister emeritus. subsequently his health improved, and frequently he was able to preach; but in , with his family, he returned to new england, where he lived with a good degree of comfort at cambridge, near his children, occasionally preaching, but gradually failing in health. he suffered severely at the last, and found final release on april , . of the later history of the church i need say little. recollections root in the remote. for thirteen years we were served by rev. bradford leavitt, and for the past eight rev. caleb s.s. dutton has been our leader. the noble traditions of the past have been followed and the place in the community has been fully maintained. the church has been a steady and powerful influence for good, and many a life has been quickened, strengthened, and made more abundant through its ministry. to me it has been a never-failing source of satisfaction and happiness. i would also bear brief testimony to the sunday-school. all my life i had attended sunday-school,--the best available. i remember well the school in leominster and the stories told by deacon cotton and others. i remember nay teacher in boston. coming to california i took what i could get, first the little methodist gathering and then the more respectable presbyterian. when in early manhood i came to san francisco i entered the bible-class at once. the school was large and vigorous. the attendance was around four hundred. lloyd baldwin, an able lawyer, was my first teacher, and a good one, but very soon i was induced to take a class of small boys. they were very bright and too quick for a youth from the country. one sunday we chanced to have as a lesson the healing of the daughter of jairus. in the gospel account the final word was the injunction: "jesus charged them that they tell no man." in all innocence i asked the somewhat leading question: "what did jesus charge them?" quick as a flash one of the boys answered, "he didn't charge them a cent." it was so pat and so unexpected that i could not protest at the levity. in the sunday-school library i met charles w. wendte, then a clerk in the bank of california. he had been befriended and inspired by starr king and soon turned from business and studied for the ministry. he is now a d.d. and has a long record of valuable service. in j.c.a. hill became superintendent of the school and appointed me his assistant. four years later he returned to new hampshire, much to our regret, and i succeeded him. with the exception of the two years that rev. william g. eliot, jr., was assistant to dr. stebbins, and took charge of the school, i served until . very many pleasant memories cluster around my connection with the sunday-school. the friendships made have been enduring. the beautiful young lives lured me on in service that never grew monotonous, and i have been paid over and over again for all i ever gave. it is a great satisfaction to feel that five of our nine church trustees are graduates of the sunday-school. i attended my first christmas festival of the sunday-school in platt's hall in , and i have never missed one since. fifty-seven consecutive celebrations incidentally testify to unbroken health. in looking back on what i have gained from the church, i am impressed with the fact that the association with the fine men and women attending it has been a very important part of my life. good friends are of untold value, and inspiration is not confined to the spoken words of the minister. especially am i impressed with the stream of community helpfulness that has flowed steadily from our church all these years. i wish i dared to refer to individual instances--but they are too many. finally, i must content myself with acknowledgment of great obligation for all i have profited from and enjoyed in church affiliation. i cannot conceive how any man can afford not to avail himself of the privilege of standing by some church. as an investment i am assured that nothing pays better and surer interest. returns are liberal, dividends are never passed, and capital never depreciates. chapter ix by-product in the conduct of life we select, or have assigned, certain measures of activity upon which we rely for our support and the self-respect that follows the doing of our part. this we call our business, and if we are wise we attend to it and prosecute it with due diligence and application. but it is not all of life, and its claim is not the only call that is made upon us. exclusive interest and devotion to it may end in the sort of success that robs us of the highest value, so that, however much substance we accumulate, we are failures as men. on the other hand, we take risks if we slight its just demands and scatter our powers on miscellaneous interests. whatever its value, every man, in addition to what he primarily produces, turns out some by-product. if it is worth anything, he may be thankful and add the amount to total income. the extracts of which this chapter is composed are selections from the editorial columns of _the pacific unitarian_, submitted not as exhibits in the case of achievement, but as indicating the convictions i have formed on the way of life. the beginning thirty years ago, a fairly active sunday-school was instigated to publish a monthly journal, nominally for all the organizations of the first unitarian society. it was not expected to be of great benefit, except to the school. after a year and a half it was adopted by the conference, its modest name, _the guidon_, being expanded to _the pacific unitarian_. its number of pages was increased to thirty-two. probably the most remarkable circumstance connected with it is that it has lived. the fact that it has enjoyed the opportunity of choice between life and death is quite surprising. other journals have had to die. it has never been easy to live, or absolutely necessary to die. anyhow, we have the thirty years of life to look back upon and take satisfaction in. we are grateful for friends far and near, and generous commendation has been pleasant to receive, whether it has been justified or not. christianity we realize more and more truly that christianity in its spirit is a very different thing from christianity as a theological structure formulated by the makers of the creed. the amazing thing is that such a misconception of the message of jesus as has generally prevailed has given us a civilization so creditable. the early councils were incapable of being led by the spirit of jesus. they were prejudiced by their preconceptions of the character of god and the nature of religion, and evolved a scheme of salvation to fit past conceptions instead of accepting as real the love of god and of man that jesus added to the religion of his fathers. even the christianity they fashioned has not been fairly tried. the christianity that jesus proclaimed, a call to trust, to love, and spiritual life, has hardly been tried at all. we seem just to be awakening to what it is, and to its application to the art of living. the prodigal's father what a difference in the thought of god and in the joy of life would have followed had the hearers of jesus given the parable of the prodigal son its full significance! they would then have found in the happy, loving father and his full forgiveness of the son who "came to himself" a type of the heavenly father. the shadow of the olden fear still persists, chilling human life. we do not trust the love of god and bear life's burdens with cheerful courage. from lurking fear of the jealous king of hebrew tradition, we are even afraid to be happy when we might. we fail of faith in the reality of god's love. we forget the robe, the ring, the overflowing joy of the earthly father, not earned by the prodigal, but given from complete love. the thing best worth while is faith in the love of god. if it be lacking, perhaps the best way to gain it is to assume it--to act on the basis of its existence, putting aside our doubts, and giving whatever love we have in our own hearts a chance to strengthen. whitsuntide whitsuntide is a church season that too often fails to receive due acknowledgment or recognition. it is, in observance, a poor third. christmas is largely diverted to a giving of superfluous gifts, and is popular from the wide-felt interest in the happiness of children. easter we can not forget, for it celebrates the rising or the risen life, and is marked by the fresh beauty of a beautiful world. to appreciate the pentecostal season and to care for spiritual inspiration appeals to the few, and to those few on a higher plane. but of all that religion has to give, it represents the highest gift, and it has to do with the world's greatest need. spiritual life is the most precious of possessions, the highest attainment of humanity. happy are we if our better spirit be quickened, if our hearts be lifted up, and our wills be strengthened, that worthy life may bring peace and joy! why the church? we cannot deny the truth that the things of the spirit are of first importance; but when it comes to living we seem to belie our convictions. we live as though we thought the spirit a doubtful matter. there are those who take pride in calling themselves materialists, but they are hardly as hopeless as those who are so indifferent that they have no opinion whatever. the man who thinks and cares is quite apt to come out right, but the mindless animal who only enjoys develops no recognizable soul. the seeking first is not in derogation of any true manhood. it is the full life, the whole life, that we are to compass--but life subordinated and controlled by the spirit, the spirit that recognizes the distinction between right and wrong. those who choose the right and bend all else to it, are of the kingdom. that is all that righteousness means. the church has no monopoly of righteousness, but it is of immense importance in cultivating the religious spirit, and cannot safely be dispensed with. and so it must be strongly supported and made efficient. to those who know true values this is an investment that cannot safely be ignored. to it we should give generously of our money, but equally generously we should give ourselves--our presence, our co-operation, our loyal support of our leaders, our constant effort to hold it to high ideals. if it is to give life, it must have life, and whatever life it has is the aggregation of our collected and consecrated lives. the church called christian cannot win by holding its old trenches. it must advance to the line that stretches from our little fortress where the flag of reason and religion defiantly floats. shall we retreat? no; it is for us to hold the fort at all costs, not for our sake alone, but for the army of humanity. we believe in god and we believe in man. as president eliot lately put it, "we believe in the principles of a simple, practical, and democratic religion. we are meeting ignorance, not with contempt, but with knowledge. we are meeting dogmatism and superstition, not with impatience, but with truth. we are meeting sin and injustice, not with abuse, but with good-will and high idealism. we have the right message for our time." to the church that seems to us to most nearly realize these ideals, it is our bounden duty, and should be our glad privilege, to present ourselves a reasonable sacrifice, that we may do our part in bringing in god's kingdom. the church and progress reforms depend upon reformed men. perhaps the greater need is _formed_ men. as we survey the majority of men around us, they seem largely unconscious of what they really are and of the privileges and responsibilities that appertain to manhood. it must be that men are better, and more, than they seem. visit a baseball game or a movie. the crowds seem wholly irresponsible, and, except in the pleasure or excitement sought, utterly uninterested--apparently without principle or purpose. and yet, when called upon to serve their country, men will go to the ends of the world, and place no limit on the sacrifice freely made for the general good. they are better than they seem, and in ways we know not of possess a sense of justice and a love of right which they found we know not where. this is encouraging, but must not relieve us from doing our utmost to inform more fully every son of man of his great opportunity and responsibility, and also of inspiring him to use his life to his and our best advantage. it is so evident that world-welfare rests upon individual well-being that we cannot escape the conviction that the best thing any one of us can do is to help to make our fellow-men better and happier. and the part of wisdom is to organize for the power we gain. it would seem that the church should be the most effective agency for promoting individual worth and consequent happiness. is it?--and if not, why not? we are apt to say we live in a new age, forgetting how little change of form matters. human nature, with its instincts and desires, love of self, and the general enjoyment of, and through, possessions, is so little changed that differences in condition and circumstance have only a modifying influence. it is man, the man within, that counts--not his clothing. but it is true that human institutions do undergo great changes, and nothing intimate and important has suffered greater changes than the church. religion itself, vastly more important than the church, has changed and is changing. martineau's illuminating classification helps us to realize this. the first expression, the pagan, was based on fear and the idea of winning favor by purchase, giving something to god--it might be burnt-offerings--for his good-will. then came the jewish, the ethical, the thought of doing, rather than giving. righteousness earns god's favor. the higher conception blossomed into christianity with its trust in the love of god and of serving him and fellow-man, self-sacrifice being the highest expression of harmony with him. following this general advance from giving and doing to being, we have the altar, the temple, and the church. the genuine unitarian unitarians owe first allegiance to the kingdom of god on earth. it is of little consequence through which door it is entered. if any other is nearer or broader or more attractive, use it. we offer ours for those who prefer it or who find others not to be entered without a password they cannot pronounce. a unitarian who merely says he is one thereby gives no satisfactory evidence that he is. there are individuals who seem to think they are unitarians because they are nothing else. they regard unitarianism as the next to nothing in its requirement of belief, losing all sight of the fact that even one real belief exceeds, and may be more difficult than, many half-beliefs and hundreds of make-beliefs, and that a unitarian church made up of those who have discarded all they thought they believed and became unitarian for its bald negations is to be pitied and must be patiently nurtured. as regards our responsibility for the growth of unitarianism, we surely cannot fail to recognize it, but it should be clearly qualified by our recognition of the object in view. to regard unitarianism as an end to be pursued for its own sake does not seem compatible with its own true spirit. the church itself is an instrument, and we are in right relation when we give the unitarian church our preference, as, to us, the best instrument, while we hold first allegiance to the idealism for which it stands and to the goodness it seeks to unfold in the heart of man. nor would we seek growth at any sacrifice of high quality or purpose. we do not expect large numbers and great popular applause. unitarians are pioneers, and too independent and discriminating to stir the feverish pulse of the multitude. we seek the heights, and it is our concern to reach them and hold them for the few that struggle up. loaves and fishes we have not to offer, nor can we promise wealth and health as an attractive by-product of righteousness. there is no better service that anyone can render than to implant higher ideals in the breast of another. in the matter of religious education as sought through the ordinary sunday-school, no one who has had any practical experience has ever found it easy, or kept free from doubt as to its being sufficiently efficacious to make it worth while. but the problem is to recognize the difficulty, face all doubts, and stand by. perfect teachers are impossible, satisfactory ones are not always to be had. if they are not dissatisfied with themselves, they are almost always unfit. but as between doing the best you can and doing nothing at all, it would seem that self-respect and a sense of deep responsibility would leave no recourse. there is no place for a shirker or a quitter in a real unitarian church. have we done our work? now and then some indifferent unitarian expresses doubt as to the future value of our particular church. there are those who say, "why should we keep it up? have we not done our work?" we have seen our original protests largely effective, and rejoice that more liberal and generous, and, we believe, more just and true, religious convictions prevail; but have we been constructive and strengthening? and until we have made our own churches fully free and fruitful in spiritual life are we absolved from the call to service? have we earned our discharge from the army of life? shall we be deserters or slackers! we ask no man to fight with us if his loyalty to any other corps is stronger, but to fight _somewhere_--to do his part for god and his fellow-men wherever he can do the most effective service. we are not unitarians first. we are not even christians first. we are human first, seeking the best in humanity, in our appointed place in a civilization that finds its greatest inspiration in the leadership of jesus of nazareth, we are next christians, and we are finally unitarians because for us their point of view embodies most truly the spirit that animated his teachings and his life. and so we appeal to those who really, not nominally, are of our household of faith to feel that it is best worth while to stand by the nearest church and to support it generously, that it may do its part in soul service and world welfare, and also to encourage it and give it more abundant life through attendance and participation in its activities. of first importance it is well for each soul, in the multiplicity of questions besetting him, to deliberately face them and determine what is of first importance. aspects are so diverse and bewildering that if we do not reduce them to some order, giving them rank, we are in danger of becoming purposeless drifters on the sea of life. what is the most important thing in life? what shall be our aim and purpose, as we look about us, observing our fellows--what they have accomplished and what they are--what commends itself to us as best worth while? and what course can we pursue to get the most and the best out of it? we find a world of infinite diversity in conditions, in aims, and in results. one of the most striking differences is in regard to what we call success. we are prone to conclude that he who is prosperous in the matter of having is the successful man. possessing is the proof of efficiency, and he who possesses little has measurably failed in the main object of life. this conclusion has a measure of truth, but is not wholly true. we see not a few instances of utter poverty of life concurrent with great possessions, and are forced to conclude that the real value of possessions is dependent on what they bring us. merely to have is of no advantage. indeed it may be a burden or a curse. happiness is at least desirable, but it has no necessary connection with property accumulations. they may make it possible, but they never insure it. possession may be an incident, but seldom is a cause. if we follow this thought further we shall find that in the accepted methods of accumulation arise many of the causes of current misery and unhappiness. generally he who is said to succeed pays a price, and a large one, for the prosperity he achieves. to be conspicuously successful commonly involves a degree of selfishness that is almost surely damaging. often injustice and unfairness are added to the train of factors, and dishonesty and absence of decency give the finishing touch. every dollar tinged with doubt is a moral liability. if it has been wrested from its rightful owner through fraud or force of opportunity, it would better be at the bottom of the sea. the best in life the power and practical irresponsibility of money have ruined many a man, and the misuse of wealth has left unused immense opportunity for good. it has coined a word that has become abhorrent, and "capitalism" has, in the minds of the suspicious, become the all-sufficient cause of everything deplorable in human conditions. no true-hearted observer can conclude that the first consideration of life should be wealth. on the other hand, no right-minded person will ignore the desirability and the duty of judiciously providing the means for a reasonable degree of comfort and self-respect, with a surplus for the furtherance of human welfare in general, and the relief of misfortune and suffering. thrift is a virtue; greed is a vice. reasonable possession is a commendable and necessary object. the unrestrained avarice that today is making cowards of us all is an unmeasured curse, a world-wide disgrace that threatens civilization. in considering ends of life we cannot ignore those who consider happiness as adequate. perhaps there are few who formulate this, but there are many who seem to give it practical assent. they apparently conform their lives to this butterfly estimate, and, in the absence of any other purpose, rest satisfied. happiness is indeed a desirable condition, and in the highest sense, where it borders on blessedness, may be fairly termed "the end and aim of being." but on the lower stretches of the senses, where it becomes mere enjoyment or pleasure, largely concerned with amusement and self-indulgence of various sorts, it becomes parasitic, robbing life of its strength and flavor and preventing its development and full growth. it is insidious in its deterioration and omnivorous in its appetite. it tends to habits that undermine and to the appropriation of a preponderating share of the valueless things of life. the danger is in the unrestrained appetite, in intemperance that becomes habit. pleasure is exhausting of both purse and mind. we naturally crave pleasant experiences, and we need a certain amount of relaxation. the danger is in overindulgence and indigestion resulting in spiritual invalidism. let us take life sanely, accepting pleasures gratefully but moderately. but what _is_ best in life? why, life itself. life is opportunity. here it is, around us, offered to us. we are free to take what we can or what we like. we have the great privilege of choice, and life's ministry to us depends on what we take and what we leave. we are providentially assigned our place, whatever it is, but in no fixed sense of its being final and unalterable. the only obligation implied is that of acceptance until it can be bettered. our moral responsibility is limited to our opportunity, and the vital question is the use we make of it. the great fact of life is that we are spiritual beings. religion has to do with soul existence and is the field of its development. it is concerned primarily with being and secondly with doing. it is righteousness inspired by love. it is recognition of our responsibilities to do god's will. hence the best life is that which accepts life as opportunity, and faithfully, happily seeks to make the most of it. it seeks to follow the right, and to do the best it can, in any circumstances. it accepts all that life offers, enjoying in moderation its varied gifts, but in restraint of self-indulgence, and with kindly consideration of others. it subordinates its impulses to the apprehended will of god, bears trials with fortitude, and trusts eternal good. overcoming obstacles one of the most impressive sights in the natural world is the difficulties resisted and overcome by a tree in its struggle for life. on the very summit of the sentinel dome, over eight thousand feet above sea-level, there is rooted in the apparently solid granite a lone pine two feet in diameter. it is not tall, for its struggle with the wind and snow has checked its aspirations, but it is sturdy and vigorous, while the wonder is that it ever established and maintained life at all. where it gains its nourishment is not apparent. disintegrated granite seems a hard diet, but it suffices, for the determined tree makes the best of the opportunities offered. like examples abound wherever a crevice holds any soil whatever. in a niche of el capitan, more than a thousand feet from the valley's floor, grows a tree a hundred feet high. a strong glass shows a single tree on the crest of half dome. such persistence is significant, and it enforces a lesson we very much need. reason should not be behind instinct in making the most of life. while man is less rigidly conditioned and may modify his environment, he, too, may nourish his life by using to the full whatever nutriment is offered. lincoln has been characterized as a man who made the most of his life. perhaps his greatness consisted mostly in that. we are inclined to blame conditions and circumstances for failures that result from our lack of effort. we lack in persistence, we resent disparity in the distribution of talents, we blink at responsibility, and are slothful and trifling. our life is a failure from lack of will. who are we that we should complain that life is hard, or conclude that it is not better so? why do we covet other opportunities instead of doing the best with those we have? what is the glory of life but to accept it with such satisfaction as we can command, to enjoy what we have a right to, and to use all it offers for its upbuilding and fulfillment? being right how evident it is that much more than good intentions is needed in one who would either maintain self-respect or be of any use in his daily life! it is not easy to be good, but it is often less easy to be right. it involves an understanding that presupposes both ability and effort. intelligence, thinking, often studious consideration, are necessary to give a working hypothesis of what is best. it is seldom that anything is so simple that without careful thought we can be sure that one course is right and another wrong. perhaps, after we have weighed all that is ponderable, we can only determine which seems the better course of action. being good may help our judgment. doing right is the will of god. patriotism "let us have faith that right makes might, and in that faith let us to the end dare to do our duty as we understand it." abraham lincoln had a marvelous aptitude for condensed statement, and in this compact sentence from his cooper union address expresses the very essence of the appeal that is made to us today. we can find no more fundamental slogan and no nobler one. whatever the circumstances presented and whatever the immediate result will be, we are to dare to do our duty as we understand it. and we are so to dare and so to do in complete faith that right makes might and in utter disregard of fear that might may triumph. the only basis of true courage is faith, and our trust must be in right, in good, in god. we live in a republic that sustains itself through the acceptance by all of the will of the majority, and to talk of despotism whenever the authority necessary for efficiency is exercised, and that with practically unanimous concurrence, is wholly unreasonable. a man who cannot yield allegiance to the country in which he lives should either be silent and inactive or go to some country where his sympathy corresponds with his loyalty. chapter x concerning persons as years increase we more and more value the personal and individual element in human life. character becomes the transcendent interest and friends are our chief assets. as i approach the end of my story of memories i feel that the most interesting feature of life has been the personal. i wish i had given more space to the people i have known. fortune has favored me with friends worth mentioning and of acquaintances, some of whom i must introduce. of horatio stebbins, the best friend and strongest influence of my life, i have tried to express my regard in a little book about to be published by the houghton mifflin company of boston. it will be procurable from our san francisco unitarian headquarters. that those who may not see it may know something of my feeling, i reprint a part of an editorial written when he died. horatio stebbins the thoughts that cluster around the memory of horatio stebbins so fill the mind that nothing else can be considered until some expression is made of them, and yet the impossibility of any adequate statement is so evident that it seems hopeless to begin. the event of his death was not unexpected. it has been imminent and threatening for years. his feebleness and the intense suffering of his later days relieve the grief that must be felt, and there springs by its side gratitude that rest and peace have come to him. and yet to those who loved him the world seems not quite the same since he has gone from it. there is an underlying feeling of something missing, of loss not to be overcome, that must be borne to the end. in my early boyhood horatio stebbins was "the preacher from fitchburg"--original in manner and matter, and impressive even to a boy. ten years passed, and our paths met in san francisco. from the day he first stood in the historic pulpit as successor of that gifted preacher and patriot, starr king, till his removal to cambridge, few opportunities for hearing him were neglected by me. his influence was a great blessing, association with him a delight, his example an inspiration, and his love the richest of undeserved treasures. dr. stebbins was ever the kindliest of men, and his friendliness and consideration were not confined to his social equals. without condescension, he always had a kind word for the humblest people. he was as gentlemanly and courteous to a hackdriver as he would be to a college president. none ever heard him speak severely or impatiently to a servant. he was considerate by nature, and patient from very largeness. he never harbored an injury, and by his generosity and apparent obliviousness or forgetfulness of the unpleasant past he often put to shame those who had wronged him. he was at times stern, and was always fearless in uttering what he felt to be the truth, whether it was to meet with favor or with disapproval from his hearers. as a friend he was loyalty itself, and for the slightest service he was deeply appreciative and grateful. he was the most charitable of men, and was not ashamed to admit that he had often been imposed upon. of his rank as a thinker and a preacher i am not a qualified judge, but he surely was great of heart and strong of mind. he was a man of profound faith, and deeply religious in a strong, manly way. he inspired others by his trust and his unquestioned belief in the reality of spiritual things. he never did anything for effect; his words fell from his lips in tones of wonderful beauty to express the thought and feeling that glowed within. noble man, great preacher, loving friend! thou art not dead, but translated to that higher life of which no doubt ever entered thy trusting mind! horace davis horace davis was born in worcester, massachusetts, on march , . his father was john davis, who served as governor of massachusetts and as united states senator. his mother was the daughter of rev. aaron bancroft, one of the pioneers of the unitarian ministry. horace davis graduated at harvard in the class of . he began the study of the law, but his eyes failed, and in he came to california to seek his fortune. he first tried the mines, starting a store at shaw's flat. when the venture failed he came to san francisco and sought any employment to be found. he began by piling lumber, but when his cousin, isaac davis, found him at it he put him aboard one of his coasting schooners as supercargo. being faithful and capable, he was sought by the pacific mail steamship company, and was for several years a good purser. he and his brother george had loaned their savings to a miller, and were forced to take over the property. mr. davis become the accepted authority on wheat and the production of flour, and enjoyed more than forty years of leadership in the business which he accidentally entered. he was always a public-spirited citizen, and in was elected to congress, serving for two terms. he proved too independent and unmanageable for the political leaders of the time and was allowed to return to private life. in he was urged to accept the presidency of the university of california, and for three years he discharged the duties of the office with credit. his interest in education was always great, and he entered with ardor and intelligence into the discharge of his duties as a trustee of the school of mechanical arts established by the will of james lick. as president of the board, he guided its course, and was responsible for the large plan for co-operation and co-ordination by which, with the wilmerding school and the lux school (of which he was also a leading trustee), a really great endowed industrial school under one administrative management has been built up in san francisco. a large part of his energy was devoted to this end, and it became the strongest desire of his life to see it firmly established. he also served for many years as a trustee for stanford university, and for a time was president of the board. to the day of his death (in july, ) he was active in the affairs of stanford, and was also deeply interested in the university of california. the degree of ll.d. was conferred by the university of the pacific, by harvard, and by the university of california. from his earliest residence in san francisco he was a loyal and devoted supporter of the first unitarian church and of its sunday-school. for over sixty years he had charge of the bible-class, and his influence for spiritual and practical christianity has been very great. he gave himself unsparingly for the cause of religious education, and never failed to prepare himself for his weekly ministration. for eight years he served on the board of trustees of the church and for seven years was moderator of the board. under the will of captain hinckley he was made a trustee of the william and alice hinckley fund, and for thirty-seven years took an active interest in its administration. at the time of his death he was its president. he was deeply interested in the pacific unitarian school for the ministry, and contributed munificently to its foundation and maintenance. mr. davis preserved his youth by the breadth of his sympathies. he seemed to have something in common with everyone he met; was young with the young. in his talks to college classes he was always happy, with a simplicity and directness that attracted close attention, and a sense of humor that lighted up his address. his domestic life was very happy. his first wife, the daughter of captain macondray, for many years an invalid, died in . in he married edith king, the only daughter of thomas starr king, a woman of rare personal gifts, who devoted her life to his welfare and happiness. she died suddenly in . mr. davis, left alone, went steadily on. his books were his constant companions and his friends were always welcome. he would not own that he was lonely. he kept occupied; he had his round of duties, attending to his affairs, and the administration of various benevolent trusts, and he had a large capacity for simple enjoyments. he read good books; he was hospitably inclined; he kept in touch with his old associates; he liked to meet them at luncheon at the university club or at the monthly dinner of the chit-chat club, which he had seldom missed in thirty-nine years of membership. he was punctilious in the preparation of his biennial papers, always giving something of interest and value. his intellectual interest was wide. he was a close student of shakespeare, and years ago printed a modest volume on the sonnets. he also published a fine study of the ministry of jesus, and a discriminating review of the american constitutions. mr. davis was a man of profound religious feeling. he said little of it, but it was a large part of his life. on his desk was a volume of dr. stebbins' prayers, the daily use of which had led to the reading again and again of the book he very deeply cherished. he was the most loyal of friends--patient, appreciative beyond deserts, kindly, and just. the influence for good of such a man is incalculable. one who makes no pretense of virtue, but simply lives uprightly as a matter of course, who is genuine and sound, who does nothing for effect, who shows simple tastes, and is not greedy for possessions, but who looks out for himself and his belongings in a prudent, self-respecting way, who takes what comes without complaint, who believes in the good and shows it by his daily course, who is never violent and desperate, but calmly tries to do his part to make his fellows happier and the world better, who trusts in god and cheerfully bears the trials that come, who holds on to life and its opportunities, without repining if he be left to walk alone, and who faces death with the confidence of a child who trusts in a father's love and care--such a man is blessed himself and is a blessing to his fellow-men. a memory of emerson in ralph waldo emerson visited california. he was accompanied by his daughter ellen, and seemed thoroughly to enjoy the new scenes and new experiences. he visited the yosemite valley and other points of interest, and was persuaded to deliver a number of lectures. his first appearance before a california audience was at the unitarian church, then in geary street near stockton, on a sunday evening, when he read his remarkable essay on "immortality," wherein he spoke of people who talk of eternity and yet do not know what to do with a day. the church was completely filled and the interest to hear him seemed so great that it was determined to secure some week-day lectures if possible. in company with horace davis, who enjoyed his acquaintance, i called on him at the occidental hotel. he was the most approachable of men--as simple and kindly in his manner as could be imagined, and putting one at ease with that happy faculty which only a true gentleman possesses. [illustration: horace davis--fifty years a friend] [illustration: harvard university when he entered] his features are familiar from the many published pictures, but no one who had not met his smiling eyes can realize the charm of his personality. his talk was delightfully genial. i asked him if his journey had been wearisome. "not at all," he replied; "i have enjoyed it all." the scenery seemed to have impressed him deeply. "when one crosses your mountains," he said, "and sees their wonderful arches, one discovers how architecture came to be invented." when asked if he could favor us with some lectures, he smiled and said: "well, my daughter thought you might want something of that kind, and put a few in my trunk, in case of an emergency." when it came to dates, it was found that he was to leave the next day for a short trip to the geysers, and it was difficult to arrange the course of three, which had been fixed upon, after his return. it was about eleven o'clock when we called. i asked him if he could give us one of the lectures that evening. he smiled and said, "oh, yes," adding, "i don't know what you can do here, but in boston we could not expect to get an audience on such short notice." we assured him that we felt confident in taking the chances on that. going at once to the office of the _evening bulletin,_ we arranged for a good local notice, and soon had a number of small boys distributing announcements in the business streets. the audience was a good one in point of numbers, and a pleased and interested one. his peculiar manner of reading a few pages, and then shuffling his papers, as though they were inextricably mixed, was embarrassing at first, but when it was found that he was not disturbed by it, and that it was not the result of an accident, but a characteristic manner of delivery, the audience withheld its sympathy and rather enjoyed the novelty and the feeling of uncertainty as to what would come next. one little incident of the lecture occasioned an admiring smile. a small bunch of flowers had been placed on the reading-desk, and by some means, in one of his shuffles, they were tipped over and fell forward to the floor. not at all disconcerted, he skipped nimbly out of the pulpit, picked up the flowers, put them back in the vase, replaced it on the desk, and went on with the lecture as though nothing had happened. he was much interested in the twenty-dollar gold pieces in which he was paid, never before having met with that form of money. his encouraging friendliness of manner quite removed any feeling that a great man's time was being wasted through one's intercourse. he gossiped pleasantly of men and things as though talking with an equal. on one occasion he seemed greatly to enjoy recounting how cleverly james russell lowell imitated alfred tennyson's reading of his own poems. over the sunday-school of our church starr king had provided a small room where he could retire and gain seclusion. it pleased emerson. he said, "i think i should enjoy a study beyond the orbit of the servant girl." he was as self-effacing a man as i ever knew, and the most agreeable to meet. after his return from his short trip he gave two or three more lectures, with a somewhat diminishing attendance. dr. stebbins remarked in explanation, "i thought the people would tire in the sockets of their wings if they attempted to follow _him_." at this distance, i can remember little that he said, but no distance of time or space can ever dim the delight i felt in meeting him, or the impression formed of a most attractive, penetrating, and inspiring personality. his kindliness and geniality were unbounded. during our arrangement of dates mr. davis smiled as he said of one suggested by mr. emerson, "that would not be convenient for mr. murdock, for it is the evening of his wedding." he did not forget it. after the lecture, a few days later, he turned to me and asked, "is she here?" when i brought my flattered wife, he chatted with her familiarly, asking where she had lived before coming to california, and placing her wholly at ease. every tone of his voice and every glance of his eye suggested the most absolute serenity. he seemed the personification of calm wisdom. nothing disturbed him, nothing depressed him. he was as serene and unruffled as a morning in june. he radiated kindliness from a heart at peace with all mankind. his gentleness of manner was an illustration of the possibility of beauty in conduct. he was wholly self-possessed--to imagine him in a passion would be impossible. his word was searching, but its power was that of the sunbeam and not of the blast. he was above all teapot tempests, a strong, tender, fearless, trustful _man_. julia ward howe julia ward howe is something more than a noble memory. she has left her impress on her time, and given a new significance to womanhood. to hear the perfect music of the voice of so cultivated a woman is something of an education, and to have learned how gracious and kindly a great nature really is, is an experience well worth cherishing. mrs. howe was wonderfully alive to a wide range of interests--many-sided and sympathetic. she could take the place of a minister and speak effectively from deep conviction and a wide experience, or talk simply and charmingly to a group of school-children. when some years later than her san francisco visit she spoke at a king's chapel meeting in boston, growing feebleness was apparent, but the same gracious spirit was undimmed. later pictures have been somewhat pathetic. we do not enjoy being reminded of mortality in those of pre-eminent spirit, but what a span of events and changes her life records, and what a part in it all she had borne! when one ponders on the inspiring effect of the battle hymn of the republic, and of the arms it nerved and the hearts it strengthened, and on the direct blows she struck for the emancipation of woman, it seems that there has been abundant answer to her prayer, "as he died to make men holy, let us die to make men free." timothy h. rearden in glancing back, i can think of no more charming man than timothy rearden. he had a most attractive personality, combining rare intelligence and kindly affection with humor and a modesty that left him almost shy. he was scholarly and brilliant, especially in literature and languages. his essays and studies in greek attracted world-acknowledgment, but at home he was known chiefly as a genial, self-effacing lawyer, not ambitious for a large practice and oblivious of position, but happy in his friends and in delving deep into whatever topic in the world of letters engaged his interest. he was born in ohio in and graduated from the cleveland high school and from kenyon college. he served in the civil war and came to california in . he was a fellow-worker with bret harte in the mint, and also on the _overland monthly_, contributing "favoring female conventualism" to the first number. he was a sound lawyer, but hid with his elders until , when he opened his own office. he was not a pusher, but his associates respected and loved him, so that when in the governor was called upon to appoint a judge, and, embarrassed by the number of candidates, he called upon the bar association to recommend someone, they took a vote and two-thirds of them named rearden. he served on the bench for eight years. he was a favorite member of the chit-chat club for many years and wrote many brilliant essays, a volume of which was printed in . the first two he gave were "francis petrarch" and "burning sappho." among the most charming was "ballads and lyrics," which was illustrated by the equally charming singing of representative selections by mrs. ida norton, the only time in its history when the club was invaded by a woman. its outside repetition was clamored for, and as the judge found a good excuse in his position and its requirements, he loaned the paper and i had the pleasure of substituting for him. when i was a candidate for the legislature he issued a card that was a departure from political methods. it was during the time when all the names were submitted on the ballot and voters crossed off those they did not want to win. he sent his friends a neat card, as follows: charles a. murdock (_of c.a. murdock & co., clay street_) is one of the republican candidates for the assembly from the tenth senatorial district if you prefer any candidate on any other ticket, scratch murdock. if you require any pledge other than that he will vote according to his honest convictions, scratch murdock. his friend, ambrose bierce, spoke of him as the most scholarly man on the pacific coast. he was surely among the most modest and affectionate. he had remarkable poetic gifts. in the thomas post of the grand army of the republic held a memorial service, and he contributed a poem beginning: "life's fevered day declines; its purple twilight falling draws length'ning shadows from the broken flanks; and from the column's head a viewless chief is calling: 'guide right; close up your ranks!'" he was ill when it was read. a week from the day of the meeting the happy, well-loved man breathed his last. john muir john muir, naturalist, enthusiast, writer, glorifier of the sierras, is held in affectionate memory the world over, but especially in california, where he was known as a delightful personality. real pleasure and a good understanding of his nature and quality await those who read of the meeting of emerson and muir in the yosemite in . it is recorded in their diaries. he was a very rare and versatile man. it was my good fortune to sit by him at a dinner on his return from alaska, where he had studied its glaciers, and had incidentally been honored by having its most characteristic one named after him. he was tremendously impressed by the wonder and majesty of what he had seen, but it in no wise dimmed his enthusiasm for the beauty and glory of the sierra nevada. in speaking of the exquisite loveliness of a mountain meadow he exclaimed: "i could conceive it no punishment to be staked out for a thousand years on one of those meadows." his tales of experiences in the high sierra, where he spent days alone and unarmed, with nothing but tea and a few breadcrusts to sustain him, were most thrilling. i was afterward charmed by his sketch of an adventure with a dog called "stickeen," on one of the great alaskan glaciers, and, meeting him, urged that he make a little book of it. he was pleased and told me he had just done it. late in life he was shocked at what he considered the desecration of the hetch-hetchy valley by the city of san francisco, which sought to dam it and form a great lake that should forever furnish a supply of water and power. he came to my office to supervise the publication of the _sierra club bulletin_, and we had a spirited but friendly discussion of the matter, i being much interested as a supervisor of the city. as a climax he exclaimed, "why, if san francisco ever gets the hetch-hetchy i shall _swear_, even if i am in heaven." george holmes howison among the many beneficent acts of horatio stebbins in his distinguished ministry in san francisco was his influence in the establishment of the chair of moral philosophy in the university of california. it was the gift of d.o. mills, who provided the endowment on the advice of dr. stebbins. the first occupant appointed was professor howison, who from to happily held a fruitful term. he was admirably fitted for his duties, and with the added influence of the philosophical union contributed much to the value of the university. a genial and kindly man, with a keen sense of humor, he was universally and deeply respected by the students and by his associates. he made philosophy almost popular, and could differ utterly from others without any of the common results of antagonism, for he generated so much more light than heat. his mind was so stored that when he began to speak there seemed to be no reason aside from discretion why he should ever stop. i enjoyed to the full one little business incident with him. in my publications i followed a somewhat severe style of typography, especially priding myself on the possession of a complete series of genuine old-style faces cast in philadelphia from moulds cut a hundred and seventy years ago. in these latter days a few bold men have tried to improve on this classic. one ronaldson especially departed from the simplicity and dignity of the cut approved by caxton, aldus, and elzevir, and substituted for the beautiful terminal of, say the capital t, two ridiculous curled points. i resented it passionately, and frequently remarked that a printer who would use ronaldson old-style would not hesitate to eat his pie with a knife. one day professor howison (i think his dog "socrates" was with him) came into my office and inquired if i had a cut of old-style type that had curved terminals on the capital ts. i had no idea why he asked the question; i might have supposed that he wanted the face, but i replied somewhat warmly that i had not, that i had never allowed it in the shop, to which he replied with a chuckle, "good! i was afraid i might get them." professor howison furnished one of the best stories of the great earthquake of . in common with most people, he was in bed at fourteen minutes past five on the th of april. while victims generally arose and dressed more or less, the professor calmly remained between the sheets, concluding that if he was to die the bed would be the most fitting and convenient place to be in. it took more than a full-grown earthquake to disturb his philosophy. josiah royce it is doubtful if any son of california has won greater recognition than josiah royce, born in grass valley in november, . in he graduated at the university of california. after gaining his ph.d. at johns hopkins, he returned to his _alma mater_ and for four years was instructor in english literature and logic. he joined the chit-chat club in and continued a member until his removal to harvard in . he was a brilliant and devoted member, with a whimsical wit and entire indifference to fit of clothes and general personal appearance. he was eminently good-natured and a very clever debater. with all the honors heaped upon him, he never forgot his youthful associates. at a reunion held in he sent this friendly message to the club: "have warmest memories of olden time. send heartiest greetings to all my fellow members. i used to be a long-winded speaker in chit-chat, but my love far outlasts my speeches. you inspired my youth. you make my older years glow." in my youthful complacency i had the audacity to print an essay on "the policy of protection," taking issue with most of my brother members, college men and free-traders. later, while on a visit to california, he told me, with a twinkle in his eye, "i am using your book at harvard as an example of logic." he died honored everywhere as america's greatest philosopher, one of the world's foremost thinkers, and withal a very lovable man. charles gordon ames in the early days rev. charles gordon ames preached for a time in santa cruz. later he removed to san jose, and occasionally addressed san francisco audiences. he was original and witty and was in demand for special occasions. in an address at a commencement day at berkeley, i heard him express his wonder at being called upon, since he had matriculated at a wood-pile and graduated in a printing-office. several years after he had returned east i was walking with him in boston. we met one of his friends, who said, "how are you, ames?" "why, i'm still at large, and have lucid intervals," replied the witty preacher. he once told me of an early experience in candidating. he was asked to preach in worcester, where there was a vacancy. next day he met a friend who told him the results, saying: "you seem to have been fortunate in satisfying both the radicals and the conservatives. but your language was something of a surprise; it does not follow the usual harvard type, and does not seem ministerial. you used unaccustomed illustrations. you spoke of something being as slow as molasses. now, so far as i know, molasses is not a scriptural word. honey is mentioned in the bible, but not molasses." joaquin miller the passing of joaquin miller removed from california her most picturesque figure. in his three-score and twelve years he found wide experience, and while his garb and habits were somewhat theatrical he was a strong character and a poet of power. in some respects he was more like walt whitman than any other american poet, and in vigor and grasp was perhaps his equal. of california authors he is the last of the acknowledged leading three, harte and clemens completing the group. for many years he lived with his wife and daughter at "the heights," in the foothills back of oakland, writing infrequently, but with power and insight. his "columbus" will probably be conceded to be his finest poem, and one of the most perfect in the language. he held his faculties till the last, writing a few days before his death a tender message of faith in the eternal. with strong unconventionality and a somewhat abrupt manner, he was genial and kindly in his feelings, with warm affections and great companionability. an amusing incident of many years ago comes back to freshen his memory. an entertainment of a social character was given at the oakland unitarian church, and when my turn came for a brief paper on wit and humor i found that joaquin miller sat near me on the platform. as an illustration of parody, bordering on burlesque, i introduced a miller imitation--the story of a frontiersman on an arizona desert accompanied by a native woman of "bare, brown beauty," and overtaken by heat so intense that but one could live, whereupon, to preserve the superior race, he seized a huge rock and "crushed with fearful blow her well-poised head." it was highly audacious, and but for a youthful pride of authorship and some curiosity as to how he would take it i should have omitted it. friends in the audience told me that the way in which i watched him from the corner of my eye was the most humorous thing in the paper. at the beginning his head was bowed, and for some time he showed no emotion of any sort, but as i went on and it grew worse and worse, he gave way to a burst of merriment and i saw that i was saved. i was gratified then, and his kindliness brings a little glow of good-will--that softens my farewell. mark twain of mark twain my memory is confined to two brief views, both before he had achieved his fame. one was hearing him tell a story with his inimitable drawl, as he stood smoking in front of a montgomery street cigar-store, and the other when on his return from a voyage to the hawaiian islands he delivered his famous lecture at the academy of music. it was a marvelous address, in which with apparently no effort he led his audience to heights of appreciative enthusiasm in the most felicitous description of the beautiful and wonderful things he had seen, and then dropped them from the sublime to the ridiculous by some absurd reference or surprisingly humorous reflection. the sharp contrast between his incomparably beautiful word paintings and his ludicrous humor was characteristic of two sides of the waggish newspaper reporter who developed into a good deal of a philosopher and the first humorist of his time. sheldon gaylord kellogg among my nearest friends i am proud to count sheldon g. kellogg, associated through both the unitarian church, the sunday-school, and the chit-chat club. he was a lawyer with a large and serviceable conscience as well as a well-trained mind. he grew to manhood in the middle west, graduated in a small methodist college, and studied deeply in germany. he came to san francisco, establishing himself in practice without acquaintance, and by sheer ability and character compelled success. his integrity and thoroughness were beyond any question. he went to the root of any matter that arose. he was remarkably well read and a passionate lover of books. he was exact and accurate in his large store of information. dr. stebbins, in his delightful extravagance, once said to mrs. kellogg, "your husband is the only man i'm afraid of--he knows so much." at the chit-chat no one dared to hazard a doubtful statement of fact. if it was not so, kellogg would know it. he was the most modest of men and would almost hesitate to quote the last census report to set us right, but such was our respect for him that his statements were never questioned; he inspired complete confidence. i remember an occasion when the supreme court of the state, or a department of it, had rendered an opinion setting aside a certain sum as the share of certain trustees. kellogg was our attorney. he studied the facts and the decision until he was perfectly sure the court had erred and that he could convince them of it. we applied for a hearing in bank and he was completely sustained. kellogg was an eminently fair man. he took part in a political convention on one occasion and was elected chairman. there was a bitter fight between contending factions, but kellogg was so just in his rulings that both sides were satisfied and counted him friendly. he was a lovable personality and the embodiment of honor. he was studious and scholarly and always justified our expectation of an able, valuable paper on whatever topic he treated. i do not recall that in all my experience i have ever known any other man so unreservedly and universally respected. joseph worcester it is a salutary experience to see the power of goodness, to know a man whose loveliness of life and character exerts an influence beyond the reach of great intellectual gift or conscious effort. joseph worcester was a modest, shrinking swedenborgian minister. his congregation was a handful of refined mystics who took no prominent part in public affairs and were quiet and unobtrusive citizens. he was not attractive as a preacher, his voice trembled with emotion and bashfulness, and he read with difficulty. he was painfully shy, and he was oppressed and suffered in a crowd. he was unmarried and lived by himself in great simplicity. he seemed to sustain generally good health on tea, toast, and marmalade, which at noonday he often shared with his friend william keith, the artist. he was essentially the gentle man. in public speaking his voice never rang out with indignation. he preserved the conversational tone and seemed devoid of passion and severity. he was patient, kind, and loving. he had humor, and a pleasant smile generally lighted up his benignant countenance. he was often playfully indignant. i remember that at one time an aesthetic character named russell addressed gatherings of society people advising them what they should throw out of their over-furnished rooms. in conversation with mr. worcester i asked him how he felt about it. he replied, "i know what i should throw out--mr. russell." it was so incongruous to think of the violence implied in mr. worcester's throwing out anything that it provoked a hearty laugh. yet there was no weakness in his kindliness. he was simply "slow to wrath," not acquiescent with wrong. his strength was not that of the storm, but of the genial shower and the smiling sun. his heart was full of love and everybody loved him. his hold was through the affections and his blissful unselfishness. he seemed never to think of himself at all. he thought very effectually of others. he was helpfulness incarnate, and since he was influential, surprising results followed. he was fond of children and gave much time to the inmates of the protestant orphan asylum, conducting services and reading to them. they grew very fond of him, and his influence on them was naturally great. he was much interested in the education of the boys and in their finding normal life. he took up especially the providing for them of a home where they could live happily and profitably while pursuing a course of study in the california school of mechanical arts. an incident of his efforts in their behalf illustrates what an influence he had gained in the community. a young man of wealth, not a member of his congregation and not considered a philanthropist, but conversant with what mr. worcester was doing and hoped to do, called upon him one day and said: "mr. worcester, here is a key that i wish to leave with you. i have taken a safe-deposit box; it has two keys. one i will keep to open the box and put in bonds from time to time, and the other i give you that you may open it and use coupons or bonds in carrying out your plans for helping the boys." this illustrates how he was loved and what good he provoked in others. without knowing it or seeking it he was a great community influence. he was gifted of the spirit. he had beauty of character, simplicity, unselfishness, love of god and his fellow-men. his special beliefs interested few, his life gave life, his goodness was radiant. he drew all men to him by his love, and he showed them the way. frederick lucian hosmer i cannot forego the pleasure of referring with sincere affection to my brother octogenarian, frederick l. hosmer. he achieved the fullness of honor two months in advance of me, which is wholly fitting, since we are much farther separated in every other regard. he has been a leader for a great many years, and i am proud to be in sight of him. his kindly friendship has long been one of the delights of my life, and i have long entertained the greatest respect and admiration for his ability and quality. as a writer of hymns he has won the first place in the world's esteem, and probably his noble verse is (after the psalms) the most universally used expression of the religious feeling of mankind. more worshipers unite in singing his hymns, unitarian though he be, than those of any other man, living or dead. it is a great distinction, and in meriting it he holds enviable rank as one of the world's greatest benefactors. yet he remains the most modest of men, with no apparent consciousness that he is great. his humility is an added charm and his geniality is beautiful. he has made the most of a fancied resemblance to me, and in many delightful ways has indulged in pleasantries based on it. in my room hangs a framed photograph signed "faithfully yours, chas. a. murdock." it is far better-looking than i ever was--but that makes no difference. we were once at a conference at seattle. he said with all seriousness, "murdock, i want you to understand that i intend to exercise great circumspection in my conduct, and i rely upon you to do the same." i greatly enjoyed dr. hosmer's party, with its eighty candles, and i was made happy that he could be at mine and nibble my cake. not all good and great men are so thoroughly lovable. thomas lamb eliot when horatio stebbins in assumed charge of the san francisco church he was the sole representative of the denomination on the pacific coast. for years he stood alone,--a beacon-like tower of liberalism. the first glimmer of companionship came from portland, oregon. at the solicitation of a few earnest unitarians dr. stebbins went to portland to consult with and encourage them. a society was formed to prepare the way for a church. a few consecrated women worked devotedly; they bought a lot in the edge of the woods and finally built a small chapel. then they moved for a minister. in st. louis, mo., rev. william greenleaf eliot had been for many years a force in religion and education. a strong unitarian church and washington university resulted. he had also founded a family and had inspired sons to follow in his footsteps. thomas lamb eliot had been ordained and was ready for the ministry. he was asked to take the portland church and he accepted. he came first to san francisco on his way. dr. stebbins was trying the experiment of holding services in the metropolitan theater, and i remember seeing in the stage box one sunday a very prepossessing couple that interested me much--they were the eliots on their way to portland. william g., jr., was an infant-in-arms. i was much impressed with the spirit that moved the attractive couple to venture into an unknown field. the acquaintance formed grew into a friendship that has deepened with the years. the ministry of the son in portland has been much like that of the father in st. louis. the church has been reverent and constructive, a steady force for righteousness, an influence for good in personal life and community welfare. dr. eliot has fostered many interests, but the church has been foremost. he has always been greatly respected and influential. dr. stebbins entertained for him the highest regard. he was wont to say: "thomas eliot is the wisest man for his years i ever knew." he has always been that and more to me. he has served one parish all his life, winning and holding the reverent regard of the whole community. the active service of the church has passed to his son and for years he has given most of his time and strength to reed college, established by his parishioners. in a few months he will complete his eighty years of beautiful life and noble service. he has kept the faith and passed on the fine spirit of his inheritance. chapter xi outings i have not been much of a traveler abroad, or even beyond the pacific states. i have been to the atlantic shore four times since my emigration thence, and going or coming i visited chicago, st. louis, denver, and other points, but have no striking memories of any of them. in i had a very delightful visit to the hawaiian islands, including the volcano. it was full of interest and charm, with a beauty and an atmosphere all its own; but any description, or the story of experiences or impressions, would but re-echo what has been told adequately by others. british columbia and western washington i found full of interest and greatly enjoyed; but they also must be left unsung. my outings from my beaten track have been brief, but have contributed a large stock of happy memories. camping in california is a joy that never palls, and among the pleasantest pictures on memory's walls are the companionship of congenial friends in the beautiful surroundings afforded by the santa cruz mountains. twice in all the years since leaving humboldt have i revisited its hospitable shores and its most impressive redwoods. my love for it will never grow less. twice, too, have i reveled in the yosemite valley and beyond to the valley that will form a majestic lake--glorious hetch-hetchy. i am thankful for the opportunity i have enjoyed of seeing so fully the great pacific empire. my church supervision included california, oregon, and washington, with the southern fringe of canada for good measure. even without this attractive neighbor my territory was larger than france (or germany) and belgium, england, wales, and ireland combined. san diego, bellingham, and spokane were the triangle of bright stars that bounded the constellation. to have found friends and to be sure of a welcome at all of these and everywhere between was a great extension to my enjoyment, and visiting them was not only a pleasant duty but a delightful outing. in the sierras belated vacations perhaps gain more than they lose, and in the sum total at least hold their own. it is one advantage of being well distributed that opportunities increase. in that an individual is an unsalaried editor, extensive or expensive trips are unthinkable; that his calling affords necessities but a scant allowance of luxuries, leaves recreation in the sierras out of the question; but that by the accidents of politics he happens to be a supervisor, certain privileges, disguised attractively as duties, prove too alluring to resist. the city had an option on certain remote lands supposed to be of great value for water and power, and no one wants to buy a pig of that size in a poke, so it was ordained that the city fathers, with their engineer and various clerks and functionaries entitled to a vacation and desiring information (or _vice versa_), should visit the lands proposed to be acquired. in the supervisors inspected the dam-sites at lake eleanor and the hetch-hetchy, but gained little idea of the intervening country and the route of the water on its way to the city. subsequently the trip was more thoroughly planned and the result was satisfactory, both in the end attained and in the incidental process. on the morning of august , , the party of seventeen disembarked from the stockton boat, followed by four fine municipal automobiles. when the men and the machines were satisfactorily supplied with fuel and the outfit was appropriately photographed, the procession started mountainward. for some time the good roads, fairly well watered, passed over level, fruitful country, with comfortable homes. then came gently rolling land and soon the foothills, with gravelly soil and scattered pines. a few orchards and ranches were passed, but not much that was really attractive. then we reached the scenes of early-day mining and half-deserted towns known to bret harte and the days of gold. knight's ferry became a memory instead of a name. chinese camp, once harboring thousands, is now a handful of houses and a few lonely stores and saloons. it had cast sixty-five votes a few days before our visit. then came a stratum of mills and mines, mostly deserted, a few operating sufficiently to discolor with the crushed mineral the streams flowing by. soon we reached the tuolumne, with clear, pellucid water in limited quantities, for the snow was not very plentiful the previous winter and it melted early. following its banks for a time, the road turned to climb a hill, and well along in the afternoon we reached "priests," a favorite roadhouse of the early stage line to the yosemite. here a good dinner was enjoyed, the machines were overhauled, and on we went. then big oak flat, a mining town of some importance, was passed, and a few miles farther groveland, where a quite active community turned out en masse to welcome the distinguished travelers. the day's work was done and the citizens showed a pathetic interest which testified to how little ordinarily happened. the shades of night were well down when hamilton's was reached--a stopping-place once well known, but now off the line of travel. here we were hospitably entertained and slept soundly after a full day's exercise. in the memory of all, perhaps the abundance of fried chicken for breakfast stands out as the distinguishing feature. a few will always remember it as the spot where for the first time they found themselves aboard a horse, and no kind chronicler would refer to which side of the animal they selected for the ascent. the municipally chartered pack-train, with cooks and supplies for man and beast, numbered over sixty animals, and chaparejos and cowboys, real and near, were numerous. the ride to the rim of the south fork of the tuolumne was short. the new trail was not sufficiently settled to be safe for the sharp descents, and for three-quarters of a mile the horses and mules were turned loose and the company dropped down the mountainside on foot. the lovely stream of water running between mountainous, wooded banks was followed up for many miles. about midday a charming spot for luncheon was found, where corral creek tumbles in a fine cascade on its way to the river. the day was warm, and when the mouth of eleanor creek was reached many enjoyed a good swim in an attractive deep basin. turning to the north, the bank of eleanor was followed to the first camping-place, plum flat, an attractive clearing, where wild plums have been augmented by fruit and vegetables. here, after a good dinner served in the open by the municipal cooks, the municipal sleeping-bags were distributed, and soft and level spots were sought for their spreading. the seasoned campers were happy and enjoyed the luxury. some who for the first time reposed upon the breast of mother earth failed to find her charm. one father awoke in the morning, sat up promptly, pointed his hand dramatically to the zenith, and said, "never again!" but he lived to revel in the open-air caravansary, and came home a tougher and a wiser man. a ride of fifteen miles through a finely wooded country brought us to the lake eleanor dam-site and the municipal camp, where general preparations are being made and runoff records are being taken. in a comfortable log house two assistants to the engineer spent the winter, keeping records of rainfall and other meteorological data. while we were in camp here, lake eleanor, a mile distant, was visited and enjoyed in various ways, and those who felt an interest in the main purpose of the trip rode over into the cherry creek watershed and inspected the sites and rights whose purchase is contemplated. saturday morning we left lake eleanor and climbed the steep ridge separating its watershed from that of the tuolumne. from eleanor to hetch-hetchy as the crow would fly, if there were a crow and he wanted to fly, is five miles. as mules crawl and men climb, it takes five hours. but it is well worth it for association with granite helps any politician. hetch-hetchy valley is about half as large as yosemite and almost as beautiful. early in the season the mosquitoes make life miserable, but as late as august the swampy land is pretty well dried up and they are few. the tuolumne tumbles in less effectively than the merced enters yosemite. instead of two falls of nine hundred feet, there is one of twenty or so. the wampana, corresponding to the yosemite falls, is not so high nor so picturesque, but is more industrious, and apparently takes no vacation. kolana is a noble knob, but not quite so imposing as sentinel rock. we camped in the valley two days and found it very delightful. the dam-site is not surpassed. nowhere in the world, it is said, can so large a body of water be impounded so securely at so small an expense. there is an admirable camping-ground within easy distance of the valley, and engineers say that at small expense a good trail, and even a wagon-road, can be built along the face of the north wall, making possible a fine view of the magnificent lake. with the argument for granting the right the city seeks i am not here concerned. the only purpose in view is the casual recital of a good time. it has to do with a delightful sojourn in good company, with songs around the camp-fire, trips up and down the valley, the taking of photographs, the appreciation of brook-trout, the towering mountains, the moon and stars that looked down on eyes facing direct from welcome beds. mention might be made of the discovery of characters--types of mountain guides who prove to be scholars and philosophers; of mules, like "flapjack," of literary fame; of close intercourse with men at their best; of excellent appetites satisfactorily met; of genial sun and of water so alluring as to compel intemperance in its use. the climbing of the south wall in the early morning, the noonday stop at hog ranch, and the touching farewell to mounts and pack-train, the exhilarating ride to crocker's, and the varied attractions of that fascinating resort, must be unsung. a night of mingled pleasure and rest with every want luxuriously supplied, a half-day of good coaching, and once more yosemite--the wonder of the west. its charms need no rehearsing. they not only never fade, but they grow with familiarity. the delight of standing on the summit of sentinel dome, conscious that your own good muscles have lifted you over four thousand feet from the valley's floor, with such a world spread before you; the indescribable beauty of a sunrise at glacier point, the beauty and majesty of vernal and nevada falls, the knightly crest of the half dome, and the imposing grandeur of the great capitan--what words can even hint their varied glory! all this packed into a week, and one comes back strengthened in body and spirit, with a renewed conviction of the beauty of the world, and a freshened readiness to lend a hand in holding human nature up to a standard that shall not shame the older sister. a day in concord there are many lovely spots in new england when june is doing her best. rolling hills dotted with graceful elms, meadows fresh with the greenest of grass, streams of water winding through the peaceful stretches, robins hopping in friendly confidence, distant hills blue against the horizon, soft clouds floating in the sky, air laden with the odor of lilacs and vibrant with songs of birds. there are many other spots of great historic interest, beautiful or not--it doesn't matter much--where memorable meetings have been held which set in motion events that changed the course of history, or where battles have been fought that no american can forget. there are still other places rich with human interest where some man of renown has lived and died--some man who has made his undying mark in letters, or has been a source of inspiration through his calm philosophy. but if one would stand upon the particular spot which can claim supremacy in each of these three respects, where can he go but to concord, massachusetts! it would be hard to find a lovelier view anywhere in the gentle east than is to be gained from the reservoir height--a beautifully broken landscape, hill and dale, woodland, distant trees, two converging streams embracing and flowing in a quiet, decorous union beneath the historic bridge, comfortable homes, many of them too simple and dignified to be suspected of being modern, a cluster of steeples rising above the elms in the center of the town, pastures and plowed fields, well-fed jerseys resting under the oaks, an occasional canoe floating on the gentle stream, genuine old new england homes, painted white, with green blinds, generous wood-piles near at hand, comfortable barns, and blossoming orchards, now and then a luxurious house, showing the architect's effort to preserve the harmonious--all of these and more, to form a scene of pastoral beauty and with nothing to mar the picture--no uncompromising factories, no blocks of flats, no elevated roads, no glaring signs of cuban cheroots or peruna bitters. it is simply an ideal exhibit of all that is most beautiful and attractive in new england scenery and life, and its charm is very great. turning to its historic interest, one is reminded of it at every side. upon a faithful reproduction of the original meeting-house, a tablet informs the visitor that here the first meeting was held that led to national independence. a placard on a quaint old hostelry informs us that it was a tavern in pre-revolutionary times. leaving the "common," around which most new england towns cluster, one soon reaches monument street. following it until houses grow infrequent, one comes to an interesting specimen which seems familiar. a conspicuous sign proclaims it private property and that sightseers are not welcome. it is the "old manse" made immortal by the genius of hawthorne. near by, an interesting road intersects leading to a river. soon we descry a granite monument at the famous bridge, and across the bridge "the minute man." the inscription on the monument informs us that here the first british soldier fell. an iron chain incloses a little plot by the side of a stone wall where rest those who met the first armed resistance. crossing the bridge which spans a dark and sluggish stream one reaches french's fine statue with emerson's noble inscription,-- "by the rude bridge that arched the flood, their flag to april's breeze unfurled, here once the embattled farmers stood and fired the shot heard round the world." no historic spot has a finer setting or an atmosphere so well fitted to calm reflection on a momentous event. on the way to concord, if one is so fortunate as to go by trolley, one passes through lexington and catches a glimpse of its bronze "minute man," more spirited and lifelike in its tense suspended motion than french's calm and determined farmer-soldier. in the side of a farmhouse near the concord battle-field--if such an encounter can be called a battle--a shot from a british bullet pierced the wood, and that historic orifice is carefully preserved; a diamond-shaped pane surrounds it. our friend, rev. a.w. jackson, remarked, "i suppose if that house should burn down, the first thing they would try to save would be that bullet-hole." but concord is richest in the memory of the men who have lived and died there, and whose character and influence have made it a center of world-wide inspiration. one has but to visit sleepy hollow cemetery to be impressed with the number and weight of remarkable names associated with this quiet town, little more than a village. sleepy hollow is one of a number of rather unusual depressions separated by sharp ridges that border the town. the hills are wooded, and in some instances their steep sides make them seem like the half of a california canyon. the cemetery is not in the cuplike valley, but on the side and summit of a gentle hill. it is well kept and very impressive. one of the first names to attract attention is "hawthorne," cut on a simple slab with rounded top. it is the sole inscription on the little stone about a foot high. simplicity could go no farther. within a small radius are found the graves of emerson, thoreau, alcott, john weiss, and samuel hoar. emerson's monument is a beautiful boulder, on the smoothed side of which is placed a bronze tablet. the inscriptions on the stones placed to the memory of the different members of the family are most fitting and touching. this is also true of the singularly fine inscriptions in the lot where rest several generations of the hoar family. a good article might be written on monumental inscriptions in the concord burial-ground. it is a lovely spot where these illustrious sons of concord have found their final resting-place, and a pilgrimage to it cannot but freshen one's sense of indebtedness to these gifted men of pure lives and elevated thoughts. the most enjoyable incident of the delightful decoration day on which our trip was made was a visit to emerson's home. his daughter was in new york, but we were given the privilege of freely taking possession of the library and parlor. everything is as the sage left it. his books are undisturbed, his portfolio of notes lies upon the table, and his favorite chair invites the friend who feels he can occupy it. the atmosphere is quietly simple. the few pictures are good, but not conspicuous or insistent. the books bear evidence of loving use. bindings were evidently of no interest. nearly all the books are in the original cloth, now faded and worn. one expects to see the books of his contemporaries and friends, and the expectation is met. they are mostly in first editions, and many of them are almost shabby. taking down the first volume of _the dial_, i found it well filled with narrow strips of paper, marking articles of especial interest. the authors' names not being given, they were frequently supplied by mr. emerson on the margin. i noticed opposite one article the words "t. parker" in mr. emerson's writing. the books covered one side of a good-sized room and ran through the connecting hall into the quaint parlor, or sitting-room, behind it. a matting covered the floor, candlesticks rested on the chimney-piece, and there was no meaningless bric-a-brac, nor other objects of suspected beauty to distract attention. as you enter the house, the library occupies the large right-hand corner room. it was simple to the verge of austerity, and the farthest possible removed from a "collection." there was no effort at arrangement--they were just books, for use and for their own sake. the portfolio of fugitive notes and possible material for future use was interesting, suggesting the source of much that went to make up those fascinating essays where the "thoughts" often made no pretense at sequence, but rested in peaceful unregulated proximity, like eggs in a nest. here is a sentence that evidently didn't quite satisfy him, an uncertain mark of erasure leaving the approved portion in doubt: "read proudly. put the duty of being read invariably on the author. if he is not read, whose fault is it? i am quite ready to be charmed--but i shall not make believe i am charmed." dear man! he never would "make believe." transparent, sincere soul, how he puts to shame all affectation and pretense! mr. jackson says his townsmen found it hard to realize that he was great. they always thought of him as the kindly neighbor. one old farmer told of his experience in driving home a load of hay. he was approaching a gate and was just preparing to climb down to open it, when an old gentleman nimbly ran ahead and opened it for him. it was emerson, who apparently never gave it a second thought. it was simply the natural thing for him to do. walden pond is some little distance from the emerson home, and the time at our disposal did not permit a visit. but we had seen enough and felt enough to leave a memory of rare enjoyment to the credit of that precious day in concord. five days there are several degrees of rest, and there are many ways of resting. what is rest to one person might be an intolerable bore to another, but when one finds the ultimate he is never after in doubt. he knows what is, to him, _the real thing_. the effect of a sufficient season, say five days, to one who had managed to find very little for a disgracefully long time, is not easy to describe, but very agreeable to feel. my friend [footnote: horace davis] has a novel retreat. he is fond of nature as manifested in the growth of trees and plants, and some seventeen years ago he bought a few acres, mostly of woods, in the santa cruz mountains. there was a small orchard, a few acres of hillside hayfield, and a little good land where garden things would grow. there was, too, a somewhat eccentric house where a man who was trying to be theosophical had lived and communed with his mystified soul. to foster the process he had more or less blue glass and a window of gothic form in the peak of his rambling house. in his living-room a round window, with sanskrit characters, let in a doubtful gleam from another room. in the side-hill a supposedly fireproof vault had been built to hold the manuscript that held his precious thoughts. in the gulch he had a sacred spot, where, under the majestic redwoods, he retired to write, and in a small building he had a small printing-press, from which the world was to have been led to the light. but there was some failure of connection, and stern necessity compelled the surrender of these high hopes. my friend took over the plant, and the reformer reformed and went off to earn his daily bread. his memory is kept alive by the name mahatma, given to the gulch, and the blue glass has what effect it may on a neighbor's vegetables. the little house was made habitable. the home of the press was comfortably ceiled and made into a guest-chamber, and apples and potatoes are stored in the fireproof vault. the acres were fairly covered with a second growth of redwood and a wealth of madroños and other native trees; but there were many spaces where nature invited assistance, and my friend every year has planted trees of many kinds from many climes, until he has an arboretum hardly equaled anywhere. there are pines in endless variety--from the sierra and from the seashore, from new england, france, norway, and japan. there flourish the cedar, spruce, hemlock, oak, beech, birch, and maple. there in peace and plenty are the sequoia, the bamboo, and the deodar. eucalypts pierce the sky and japanese dwarfs hug the ground. these children of the woodland vary in age from six months to sixteen years, and each has its interest and tells its story of struggle, with results of success or failure, as conditions determine. at the entrance to the grounds an incense-cedar on one side and an arbor-vitae on the other stand dignified guard. the acres have been added to until about sixty are covered with growing trees. around the house, which wisteria has almost covered, is a garden in which roses predominate, but hollyhocks, coreopsis, and other flowers not demanding constant care grow in luxuriance. there is abundance of water, and filtered sunshine gives a delightful temperature. the thermometer on the vine-clad porch runs up to in the daytime and in the night drops down to . a sympathetic italian lives not far away, keeping a good cow, raising amazingly good vegetables, gathering the apples and other fruit, and caring for the place. the house is unoccupied except during the five days each month when my friend restores himself, mentally and physically, by rest and quiet contemplation and observation. he takes with him a faithful servitor, whose old age is made happy by these periodical sojourns, and the simple life is enjoyed to the full. into this resthaven it was my happy privilege to spend five-sevenths of a week of august, and the rare privilege of being obliged to do nothing was a great delight. early rising was permissible, but not encouraged. at eight o'clock a rich hibernian voice was heard to say, "hot water, mr. murdock," and it was so. a simple breakfast, meatless, but including the best of coffee and apricots, tree-ripened and fresh, was enjoyed at leisure undisturbed by thought of awaiting labor. following the pleasant breakfast chat was a forenoon of converse with my friend or a friendly book or magazine, broken by a stroll through some part of the wood and introduction to the hospitably entertained trees from distant parts. my friend is something of a botanist, and was able to pronounce the court names of all his visitors. wild flowers still persist, and among others was pointed out one which was unknown to the world till he chanced to find it. [illustration: outings in the sierras, in hawaii, ] very interesting is the fact that the flora of the region, which is a thousand feet above sea-level, has many of the characteristics of beach vicinity, and the reason is disclosed by the outcropping at various points of a deposit of white sand, very fine, and showing under the microscope the smoothly rounded form that tells of the rolling waves. this deposit is said to be traceable for two hundred miles easterly, and where it has been eroded by the streams of today enormous trees have grown on the deposited soil. the mind is lost in conjecture of the time that must have elapsed since an ancient sea wore to infinitesimal bits the quartz that some rushing stream had brought from its native mountains. another interesting feature of the landscape was the clearly marked course of the old "indian trail," known to the earliest settlers, which followed through this region from the coast at santa cruz to the santa clara valley. it followed the most accessible ridges and showed elemental surveying of a high order. along its line are still found bits of rusted iron, with specks of silver, relics of the spurs and bridles of the caballeros of the early days. the maples that sheltered the house are thinned out, that the sun may not be excluded, and until its glare becomes too radiant the steamer-chair or the rocker seeks the open that the genial page of "susan's escort, and others," one of the inimitable books of edward everett hale, may be enjoyed in comfort. when midday comes the denser shade of tree or porch is sought, and coats come off. at noon dinner is welcome, and proves that the high cost of living is largely a conventional requirement. it may be beans or a bit of roast ham brought from home, with potatoes or tomatoes, good bread and butter, and a dessert of toasted crackers with loganberries and cream. to experience the comfort of not eating too much and to find how little can be satisfying is a great lesson in the art of living. to supplement, and dispose of, this homily on food, our supper was always baked potatoes and cream toast,--but such potatoes and real cream toast! of course, fruit was always "on tap," and the good coffee reappeared. in the cool of the afternoon a longer walk. good trails lead over the whole place, and sometimes we would go afield and call on some neighbor. almost invariably they were italians, who were thriving where improvident americans had given up in despair. always my friend found friendly welcome. this one he had helped out of a trouble with a refractory pump, that one he had befriended in some other way. all were glad to see him, and wished him well. what a poor investment it is to quarrel with a neighbor! sometimes my friend would busy himself by leading water to some neglected and thirsty plant, while i was re-reading "tom grogan" or brander matthews' plays, but for much of the time we talked and exchanged views on current topics or old friends. when the evening came we prudently went inside and continued our reading or our talk till we felt inclined to seek our comfortable beds and the oblivion that blots out troubles or pleasures. and so on for five momentous days. quite unlike the "seven days" in the delightful farce-comedy of that name, in which everything happened, here nothing seemed to happen. we were miles from a post-office, and newspapers disturbed us not. the world of human activity was as though it were not. politics as we left it was a disturbing memory, but no fresh outbreaks aggravated our discomfort. we were at rest and we rested. a good recipe for long life, i think, would be: withdraw from life's turmoil regularly--five days in a month. an anniversary the humboldt county business established and conducted on honor by alex. brizard was continued on like lines by his three sons with conspicuous success. as the fiftieth anniversary approached they arranged to fitly celebrate the event. they invited many of their father's and business associates to take part in the anniversary observance in july, . with regret, i was about to decline when my good friend henry michaels, a state guard associate, who had become the head of the leading house in drugs and medicines with which brizard and his sons had extensively dealt, came in and urged me to join him in motoring to humboldt. he wanted to go, but would not go alone and the double delight of his company and joining in the anniversary led to prompt acceptance of his generous proposal. there followed one of the most enjoyable outings of my life. i had never compassed the overland trip to humboldt, and while i naturally expected much the realization far exceeded my anticipations. from the fine highway following the main ridge the various branches of the eel river were clearly outlined, and when we penetrated the world-famous redwood belt and approached the coast our enjoyment seemed almost impious, as though we were motoring through a cathedral. we found arcata bedecked for the coming anniversary. the whole community felt its significance. when the hour came every store in town closed. seemingly the whole population assembled in and around the brizard store, anxious to express kindly memory and approval of those who so well sustained the traditions of the elders. the oldest son made a brief, manly address and introduced a few of the many who could have borne tribute. it was a happy occasion in which good-will was made very evident. a ball in the evening concluded the festivities, and it was with positive regret that we turned from the delightful atmosphere and retraced our steps to home and duty. chapter xii occasional verse boston (after bret harte) on the south fork of yuba, in may, fifty-two, an old cabin stood on the hill, where the road to grass valley lay clear to the view, and a ditch that ran down to buck's mill. it was owned by a party that lately had come to discover what fate held in store; he was working for brigham, and prospecting some, while the clothes were well cut that he wore. he had spruced up the cabin, and by it would stay, for he never could bear a hotel. he refused to drink whiskey or poker to play, but was jolly and used the boys well. in the long winter evenings he started a club, to discuss the affairs of the day. he was up in the classics--a scholarly cub-- and the best of the talkers could lay. he could sing like a robin, and play on the flute, and he opened a school, which was free, where he taught all the musical fellows to toot, or to join in an anthem or glee. so he soon "held the age" over any young man who had ever been known on the bar; and the boys put him through, when for sheriff he ran, and his stock now was much above par. in the spring he was lucky, and struck a rich lead, and he let all his friends have a share; it was called the new boston, for that was his breed, and the rock that he showed them was rare. when he called on his partners to put up a mill, they were anxious to furnish the means; and the needful, of course, turned into his till just as freely as though it was beans. then he went to the bay with his snug little pile-- there was seventeen thousand and more-- to arrange for a mill of the most approved style, and to purchase a sturtevant blower. but they waited for boston a year and a day, and he never was heard of again. for the lead he had opened was salted with pay, and he'd played 'em with culture and brain. the greater freedom o god of battles, who sustained our fathers in the glorious days when they our priceless freedom gained, help us, as loyal sons, to raise anew the standard they upbore, and bear it on to farther heights, where freedom seeks for self no more, but love a life of service lights. our father is god our father? so sublime the thought we cannot hope its meaning full to grasp, e'en as the child the gifts the wise men brought could not within his infant fingers clasp. we speak the words from early childhood taught. we sometimes fancy that their truth we feel; but only on life's upper heights is caught the vital message that they may reveal. so on the heights may we be led to dwell, that nearer god we may more truly know how great the heritage his love will tell if we be lifted up from things below. resurgam the stricken city lifts her head, with eyes yet dim from flowing tears; her heart still throbs with pain unspent, but hope, triumphant, conquers fears. with vision calm, she sees her course, nor shrinks, though thorny be the way. shall human will succumb to fate, crushed by the happenings of a day? the city that we love shall live, and grow in beauty and in power; her loyal sons shall stand erect, their chastened courage heaven's dower. and when the story shall be told of direful ruin, loss, and dearth, there shall be said with pride and joy: "but man survived, and proved his worth." san francisco o "city loved around the world," triumphant over direful fate, thy flag of honor never furled, proud guardian of the golden gate; hold thou that standard from the dust of lower ends or doubtful gain; on thy good sword no taint of rust; on stars and stripes no blot or stain. thy loyal sons by thee shall stand, thy highest purpose to uphold; proclaim the word, o'er all the land, that truth more precious is than gold. let justice never be denied, resist the wrong, defend the right; where west meets east stand thou in pride of noble life,--a beacon-light. the new year the past is gone beyond recall, the future kindly veils its face; today we live, today is all we have or need, our day of grace. the world is god's, and hence 'tis plain that only wrong we need to fear; 'tis ours to live, come joy or pain, to make more blessed each new year. prodigals we tarry in a foreign land, with pleasure's husks elate, when robe and ring and father's hand at home our coming wait. deep-rooted fierce boreas in his wildest glee assails in vain the yielding tree that, rooted deep, gains strength to bear, and proudly lifts its head in air. when loss or grief, with sharp distress, to man brings brunt of storm and stress, he stands serene who calmly bends in strength that trust, deep-rooted, lends. to horatio stebbins the sun still shines, and happy, blithesome birds are singing on the swaying boughs in bloom. my eyes look forth and see no sign of gloom, no loss casts shadow on the grazing herds; and yet i bear within a grief that words can ne'er express, for in the silent tomb is laid the body of my friend, the doom of silence on that matchless voice. now girds my spirit for the struggle he would praise. a leader viewless to the mortal eye still guides my steps, still calls with clarion cry to deeds of honor, and my thoughts would raise to seek the truth and share the love on high. with loyal heart i'll follow all my days. new year, the sifting sand that marks the passing year in many-colored tints its course has run through days with shadows dark, or bright with sun, but hope has triumphed over doubt and fear, new radiance flows from stars that grace our flag. our fate we ventured, though full dark the night, and faced the fatuous host who trusted might. god called, the country's lovers could not lag, serenely trustful, danger grave despite, untrained, in love with peace, they dared to fight, and freed a threatened world from peril dire, establishing the majesty of right. our loyal hearts still burn with sacred fire, our spirits' wings are plumed for upward flight. new year, the curtain rises on the all-world stage, the play is unannounced; no prologue's word gives hint of scene, or voices to be heard; we may be called with tragedy to rage, in comedy or farce we may disport, with feverish melodrama we may thrill, or in a pantomimic role be still. we may find fame in field, or grace a court, whate'er the play, forthwith its lines will start, and every soul, in cloister or in mart, must act, and do his best from day to day-- so says the prompter to the human heart. "the play's the thing," might shakespear's hamlet say. "the thing," to us, is playing well our part. epilogue *walking in the way* to hold to faith when all seems dark to keep of good courage when failure follows failure to cherish hope when its promise is faintly whispered to bear without complaint the heavy burdens that must be borne to be cheerful whatever comes to preserve high ideals to trust unfalteringly that well-being follows well-doing this is the way of life to be modest in desires to enjoy simple pleasures to be earnest to be true to be kindly to be reasonably patient and ever-lastingly persistent to be considerate to be at least just to be helpful to be loving this is to walk therein. charles a. murdock file was produced from scans of public domain works at the university of michigan's making of america collection.) abridgment of the debates of congress, from to . from gales and seaton's annals of congress; from their register of debates; and from the official reported debates, by john c. rives. by the author of the thirty years' view. vol. iv. new york: d. appleton & company, & broadway. . entered according to act of congress, in the year , by d. appleton and company, in the clerk's office of the district court for the southern district of new york. tenth congress.--second session. begun at the city of washington, november , . proceedings in the senate. monday, november , . conformably to the act, passed the last session, entitled "an act to alter the time for the next meeting of congress," the second session of the tenth congress commenced this day; and the senate assembled at the city of washington. present: george clinton, vice president of the united states and president of the senate. nicholas gilman and nahum parker, from new hampshire. timothy pickering, from massachusetts. james hillhouse and chauncey goodrich, from connecticut. benjamin howland and elisha mathewson, from rhode island. stephen r. bradley and jonathan robinson, from vermont. samuel l. mitchill and john smith, from new york. john condit and aaron kitchel, from new jersey. samuel maclay, from pennsylvania. samuel white, from delaware. william b. giles, from virginia. james turner, from north carolina. thomas sumter and john gaillard, from south carolina. william h. crawford, from georgia. buckner thruston and john pope, from kentucky. daniel smith, from tennessee. edward tiffin, from ohio. james lloyd, jun., appointed a senator by the legislature of the state of massachusetts, to supply the place of john quincy adams, resigned, took his seat in the senate, and produced his credentials, which were read, and the oath prescribed by law was administered to him. _ordered_, that the secretary acquaint the house of representatives that a quorum of the senate is assembled and ready to proceed to business; and that messrs. bradley and pope be a committee on the part of the senate, together with such committee as may be appointed by the house of representatives on their part, to wait on the president of the united states and notify him that a quorum of the two houses is assembled. a message from the house of representatives informed the senate that a quorum of the house is assembled and ready to proceed to business; and that the house had appointed a committee on their part, jointly with the committee appointed on the part of the senate, to wait on the president of the united states and notify him that a quorum of the two houses is assembled. _resolved_, that james mathers, sergeant-at-arms and doorkeeper to the senate, be, and he is hereby, authorized to employ one assistant and two horses, for the purpose of performing such services as are usually required by the doorkeeper to the senate; and that the sum of twenty-eight dollars be allowed him weekly for that purpose, to commence with, and remain during the session, and for twenty days after. on motion, by mr. bradley, _resolved_, that two chaplains, of different denominations, be appointed to congress during the present session, one by each house, who shall interchange weekly. mr. bradley reported, from the joint committee, that they had waited on the president of the united states, agreeably to order, and that the president of the united states informed the committee that he would make a communication to the two houses at o'clock to-morrow. tuesday, november . samuel smith and philip reed, from the state of maryland, attended. the following message was received from the president of the united states: _to the senate and house of representatives of the united states_: it would have been a source, fellow-citizens, of much gratification, if our last communications from europe had enabled me to inform you that the belligerent nations, whose disregard of neutral rights has been so destructive to our commerce, had become awakened to the duty and true policy of revoking their unrighteous edicts. that no means might be omitted to produce this salutary effect, i lost no time in availing myself of the act authorizing a suspension, in whole, or in part, of the several embargo laws. our ministers at london and paris were instructed to explain to the respective governments there, our disposition to exercise the authority in such manner as would withdraw the pretext on which aggressions were originally founded, and open the way for a renewal of that commercial intercourse which it was alleged, on all sides, had been reluctantly obstructed. as each of those governments had pledged its readiness to concur in renouncing a measure which reached its adversary through the incontestable rights of neutrals only, and as the measure had been assumed by each as a retaliation for an asserted acquiescence in the aggressions of the other, it was reasonably expected that the occasion would have been seized by both for evincing the sincerity of their professions, and for restoring to the commerce of the united states its legitimate freedom. the instructions of our ministers, with respect to the different belligerents, were necessarily modified with a reference to their different circumstances, and to the condition annexed by law to the executive power of suspension requiring a degree of security to our commerce which would not result from a repeal of the decrees of france. instead of a pledge therefore of a suspension of the embargo as to her, in case of such a repeal, it was presumed that a sufficient inducement might be found in other considerations, and particularly in the change produced by a compliance with our just demands by one belligerent, and a refusal by the other, in the relations between the other and the united states. to great britain, whose power on the ocean is so ascendant, it was deemed not inconsistent with that condition to state, explicitly, on her rescinding her orders in relation to the united states, their trade would be opened with her, and remain shut to her enemy, in case of his failure to rescind his decrees also. from france no answer has been received, nor any indication that the requisite change in her decrees is contemplated. the favorable reception of the proposition to great britain was the less to be doubted, as her orders of council had not only been referred for their vindication to an acquiescence on the part of the united states no longer to be pretended, but as the arrangement proposed, whilst it resisted the illegal decrees of france, involved, moreover, substantially, the precise advantages professedly aimed at by the british orders. the arrangement has, nevertheless, been rejected. this candid and liberal experiment having thus failed, and no other event having occurred on which a suspension of the embargo by the executive was authorized, it necessarily remains in the extent originally given to it. we have the satisfaction, however, to reflect, that in return for the privations imposed by the measure, and which our fellow-citizens in general have borne with patriotism, it has had the important effects of saving our mariners, and our vast mercantile property, as well as of affording time for prosecuting the defensive and provisional measures called for by the occasion. it has demonstrated to foreign nations the moderation and firmness which govern our councils, and to our citizens the necessity of uniting in support of the laws and the rights of their country, and has thus long frustrated those usurpations and spoliations which, if resisted, involved war, if submitted to, sacrificed a vital principle of our national independence. under a continuance of the belligerent measures, which, in defiance of laws which consecrate the rights of neutrals, overspread the ocean with danger, it will rest with the wisdom of congress to decide on the course best adapted to such a state of things; and bringing with them, as they do, from every part of the union, the sentiments of our constituents, my confidence is strengthened that, in forming this decision, they will, with an unerring regard to the essential rights and interests of the nation, weigh and compare the painful alternatives out of which a choice is to be made. nor should i do justice to the virtues which, on other occasions, have marked the character of our fellow-citizens, if i did not cherish an equal confidence that the alternative chosen, whatever it may be, will be maintained with all the fortitude and patriotism which the crisis ought to inspire. the documents containing the correspondences on the subject of foreign edicts against our commerce, with the instructions given to our ministers at london and paris, are now laid before you. the communications made to congress at their last session explained the posture in which the close of the discussions relating to the attack by a british ship of war on the frigate chesapeake, left a subject on which the nation had manifested so honorable a sensibility. every view of what had passed authorized a belief that immediate steps would be taken by the british government for redressing a wrong, which, the more it was investigated, appeared the more clearly to require what had not been provided for in the special mission. it is found that no steps have been taken for the purpose. on the contrary, it will be seen, in the documents laid before you, that the inadmissible preliminary, which obstructed the adjustment, is still adhered to; and, moreover, that it is now brought into connection with the distinct and irrelative case of the orders in council. the instructions which had been given to our minister at london, with a view to facilitate, if necessary, the reparation claimed by the united states, are included in the documents communicated. our relations with the other powers of europe have undergone no material changes since our last session. the important negotiations with spain, which had been alternately suspended and resumed, necessarily experience a pause under the extraordinary and interesting crisis which distinguishes her internal situation. with the barbary powers we continue in harmony, with the exception of an unjustifiable proceeding of the dey of algiers towards our consul to that regency. its character and circumstances are now laid before you, and will enable you to decide how far it may, either now or hereafter, call for any measures not within the limits of the executive authority. of the gun boats authorized by the act of december last, it has been thought necessary to build only one hundred and three in the present year. these, with those before possessed, are sufficient for the harbors and waters most exposed, and the residue will require little time for their construction when it shall be deemed necessary. under the act of the last session for raising an additional military force, so many officers were immediately appointed as were necessary for carrying on the business of recruiting; and in proportion as it advanced, others have been added. we have reason to believe their success has been satisfactory, although such returns have not yet been received as enable me to present you a statement of the number engaged. the suspension of our foreign commerce, produced by the injustice of the belligerent powers, and the consequent losses and sacrifices of our citizens, are subjects of just concern. the situation into which we have thus been forced has impelled us to apply a portion of our industry and capital to internal manufactures and improvements. the extent of this conversion is daily increasing, and little doubt remains that the establishments formed and forming will, under the auspices of cheaper materials and subsistence, the freedom of labor from taxation with us, and of protecting duties and prohibitions, become permanent. the commerce with the indians, too, within our own boundaries, is likely to receive abundant aliment from the same internal source, and will secure to them peace and the progress of civilization, undisturbed by practices hostile to both. the accounts of the receipts and expenditures during the year ending on the thirtieth day of september last, being not yet made up, a correct statement will hereafter be transmitted from the treasury. in the mean time, it is ascertained that the receipts have amounted to near eighteen millions of dollars, which, with the eight millions and a half in the treasury at the beginning of the year, have enabled us, after meeting the current demands, and interest incurred, to pay two millions three hundred thousand dollars of the principal of our funded debt, and left us in the treasury, on that day, near fourteen millions of dollars. of these, five millions three hundred and fifty thousand dollars will be necessary to pay what will be due on the first day of january next, which will complete the reimbursement of the eight per cent. stock. these payments, with those made in the six years and a half preceding, will have extinguished thirty-three millions five hundred and eighty thousand dollars of the principal of the funded debt, being the whole which could be paid or purchased within the limits of the law and our contracts; and the amount of principal thus discharged will have liberated the revenue from about two millions of dollars of interest, and added that sum annually to the disposable surplus. the probable accumulation of the surpluses of revenue beyond what can be applied to the payment of the public debt, whenever the freedom and safety of our commerce shall be restored, merits the consideration of congress. shall it lie unproductive in the public vaults? shall the revenue be reduced? or, shall it not rather be appropriated to the improvements of roads, canals, rivers, education, and other great foundations of prosperity and union, under the powers which congress may already possess, or such amendment of the constitution as may be approved by the states? while uncertain of the course of things, the time may be advantageously employed in obtaining the powers necessary for a system of improvement, should that be thought best. availing myself of this, the last occasion which will occur, of addressing the two houses of the legislature at their meeting, i cannot omit the expression of my sincere gratitude for the repeated proofs of confidence manifested to me by themselves and their predecessors since my call to the administration, and the many indulgences experienced at their hands. the same grateful acknowledgments are due to my fellow-citizens generally, whose support has been my great encouragement under all embarrassments. in the transaction of their business i cannot have escaped error. it is incident to our imperfect nature. but i may say with truth my errors have been of the understanding, not of intention, and that the advancement of their rights and interests has been the constant motive for every measure. on these considerations i solicit their indulgence. looking forward with anxiety to their future destinies, i trust that, in their steady character, unshaken by difficulties, in their love of liberty, obedience to law, and support of the public authorities, i see a sure guarantee of the permanence of our republic; and retiring from the charge of their affairs, i carry with me the consolation of a firm persuasion that heaven has in store for our beloved country long ages to come of prosperity and happiness. th. jefferson. november , . the message and papers were in part read, and one thousand copies ordered to be printed for the use of the senate. a confidential message was also received, with sundry documents therein referred to, which were read for consideration. wednesday, november . jesse franklin, from the state of north carolina, attended. friday, november . a message from the house of representatives informed the senate that the house have appointed the rev. mr. brown a chaplain to congress, on their part, during the present session. monday, november . joseph anderson, from the state of tennessee, and andrew moore, from the state of virginia, attended. wednesday, november . andrew gregg, from the state of pennsylvania, attended. monday, november . _the embargo._ this being the day fixed for the discussion of the following resolution, offered by mr. hillhouse: _resolved_, that it is expedient that the act, entitled "an act laying an embargo on all ships and vessels in the ports and harbors of the united states," and the several acts supplementary thereto, be repealed; and that a committee be appointed to prepare and report a bill for that purpose: mr. hillhouse opened the debate. when the reporter entered the senate chamber, mr. h. had been speaking for a few minutes, and was then discussing the effect which the embargo had had upon france, and the light in which it was viewed by her rulers. he alluded to the declaration of satisfaction at the measure, contained in a late french exposé, and made many observations tending to show that it was not a measure of hostility or coercion, as applied to france. on england it had little or no effect. her resources were immense. if deprived of a supply of grain here, she could obtain it elsewhere. the barbary powers were at war with france and at peace with england, who might thence obtain wheat in any quantity she pleased. great britain, he said, was a nation with the whole world before her; her commerce spread over every sea, and she had access to almost every port and clime. could america expect to starve this nation? it was a farce, an idle farce. as to her west india islands, they raised indian corn; all their sugar plantations could be converted into corn-fields, and would any man say that they would starve because they could not get superfine flour? was this a necessary of life without which they could not subsist? on the contrary, a great proportion of the american people subsisted on it, and enjoyed as good health as if they ate nothing but the finest of wheat flour. the moment people understood that they could not get their necessary supplies from a customary source, they would look out for it in another quarter, and ample time had been given to them to make arrangements for this purpose. a man of the first respectability in the town in which mr. h. lived, had been there during this embargo, under the president's permission. what accounts did he bring? why, that the trade in corn-meal and live cattle, articles of great export from connecticut, and comprising not only the product of that state, but of parts of the neighboring states, would be entirely defeated; that, where they had formerly sent a _hundred_ hogsheads of meal, they would not now find vent for _ten_; and that, from south america, where cattle had, in times past, been killed merely for their hides and tallow, cattle in abundance could be procured. were these people to be starved out, when they could actually purchase cheaper now from other places than they had formerly done from us? no; the only consequence would be, and that too severely felt, that we should lose our market; the embargo thus producing, not only present privation and injury, but permanent mischief. the united states would have lost the chance of obtaining future supplies, they would have lost their market, and ten or twenty years would place them on the same footing as before. mr. h. said the west indians would have learnt that they can do without us; that they can raise provisions cheaper on their own plantations than we can sell them; and knowing this, they would never resort to us. though we might retain a part of this commerce, the best part would be lost forever. the trade would not be worth pursuing; though this might answer one purpose intended by the embargo, and which was not expressed. having considered the article of provisions as important to various parts of the union, mr. h. said he would now turn to another article, cotton. it had been very triumphantly said, that the want of this article would distress the manufacturers of great britain, produce a clamor amongst them, and consequently accelerate the repeal of the orders in council. mr. h. said he would examine this a little, and see if all the evil consequences which opened on him at the time of the passage of the embargo law were not likely to be realized. he had hinted at some of them at that time, but the bill had gone through the senate like a flash of lightning, giving no time for examination; once, twice, and a third time in one day, affording no time for the development of all its consequences. this article of cotton was used not only by britain, but by france and other nations on the continent. cotton, not being grown in europe, must be transported by water carriage. this being the case, who would now be most likely to be supplied with it? not the continental powers who have so little commerce afloat nor any neutrals to convey it to them; for the united states were the only neutral which, of late, traded with france, and now the embargo was laid, she had no chance of getting it, except by the precarious captures made by her privateers. to great britain, then, was left the whole commerce of the world, and her merchants were the only carriers. would not these carriers supply their own manufacturers? would they suffer cotton to go elsewhere, until they themselves were supplied? america was not the only country where cotton was raised; for he had seen an account of a whole cargo brought into salem from the east indies, and thence exported to holland, with a good profit. cotton was also raised in africa, as well as elsewhere; and this wary nation, great britain, conceiving that the united states might be so impolitic as to keep on the embargo, had carried whole cargoes of the best cotton seed there for the purpose of raising cotton for her use. great britain had possessions in every climate on the globe, and cotton did not, like the sturdy oak, require forty or fifty years to arrive at maturity; but, if planted, would produce a plentiful supply in a year. thus, then, when this powerful nation found america resorting to such means to coerce her, she had taken care to look out for supplies in other quarters; and, with the command of all the cotton on the globe which went to market, could we expect to coerce her by withholding ours? mr. h. said no; all the inconvenience which she could feel from our measure had already been borne; and great britain was turning her attention to every part of the globe to obtain those supplies which she was wont to get from us, that she might not be reduced to the humiliating condition of making concession to induce us to repeal our own law, and purchase an accommodation by telling us that we had a weapon which we could wield to her annoyance. mr. h. wished to know of gentlemen if we had not experience enough to know that great britain was not to be threatened into compliance by a rod of coercion? let us examine ourselves, said he, for if we trace our genealogy we shall find that we descend from them; were they to use us in this manner, is there an american that would stoop to them? i hope not; and neither will that nation, from which we are descended, be driven from their position, however erroneous, by threats. this embargo, therefore, instead of operating on those nations which had been violating our rights, was fraught with evils and privations to the people of the united states. they were the sufferers. and have we adopted the monkish plan of scourging ourselves for the sins of others? he hoped not; and that, having made the experiment and found that it had not produced its expected effect, they would abandon it, as a measure wholly inefficient as to the objects intended by it, and as having weakened the great hold which we had on great britain, from her supposed dependence on us for raw materials. some gentlemen appeared to build up expectations of the efficiency of this system by an addition to it of a non-intercourse law. mr. h. treated this as a futile idea. they should however examine it seriously, and not, like children, shut their eyes to danger. great britain was not the only manufacturing nation in europe. germany, holland, france, spain, portugal, and italy, manufactured more or less, and most of them had colonies, the exclusive supply of whose manufactures they had heretofore reserved to themselves. while we had enjoyed the carrying trade, we had supplied the deficiency in navigation of those nations; and all the inconvenience felt for the want of it ceased because we stepped in and aided them. this trade had been cut up, and perhaps it was not a trade which the energies of the nation should be embarked in defending. who was there now to supply all these various colonies that used to be supplied by us? none but england, the sole mistress of the ocean. whose products, then, would great britain carry? would she carry products of other nations, and let her own manufacturers starve? no; and this exclusion from the colonies of other manufactures, and leaving her merchants the sole carriers of the world, produced a greater vent for her manufactures than the whole quantity consumed in the united states. this, however, was arguing upon the ground that the united states would consume none of her manufactures in case of a non-intercourse. mr. h. said he was young when the old non-intercourse took place, but he remembered it well, and had then his ideas on the subject. the british army was then at their door, burning their towns and ravaging the country, and at least as much patriotism existed then as now; but british fabrics were received and consumed to almost as great an extent as before the prohibition. the armies could not get fresh provisions from europe, but they got them here by paying higher prices in guineas for them than was paid by our government in ragged continental paper money. when the country was in want of clothing, and could get it for one-fourth price from the british, what was the consequence? why, all the zealous patriots--for this work of tarring and feathering, and meeting in mobs to destroy their neighbor's property, because he could not think quite as fast as they did, which seemed to be coming in fashion now, had been carried on then with great zeal--these patriots, although all intercourse was penal, carried on commerce notwithstanding. supplies went hence, and manufactures were received from europe. now, what reliance could be placed on this patriotism? a gentleman from vermont had told the senate at the last session, that the patriotism of vermont would stop all exportation by land, without the assistance of the law. how had it turned out? why, patriotism, cannon, militia, and all had not stopped it; and although the field-pieces might have stopped it on the lakes, they were absolutely cutting new roads to carry it on by land. and yet the gentleman had supposed that their patriotism would effectually stop it! now, mr. h. wanted to know how a non-intercourse law was to be executed by us with a coast of fifteen hundred miles open to great britain by sea, and joining her by land? her goods would come through our courts of admiralty by the means of friendly captors; they would be brought in, condemned, and then naturalized, as irishmen are now naturalized, before they have been a month in the country. mr. pope said it had been his opinion this morning that this resolution should have been referred to that committee, but after what had been said, it was his wish that some commercial gentleman, whose knowledge of commercial subjects would enable him to explore the wide field taken by the gentleman from connecticut, would have answered him. he had hoped, at this session, after the presidential election was decided, that all would have dismounted from their political hobbies, that they would have been all federalists, all republicans, all americans. when they saw the ocean swarming with pirates, and commerce almost annihilated, he had hoped that the demon of party spirit would not have reared its head within these walls, but that they would all have mingled opinions and consulted the common good. he had heretofore been often charmed with the matter-of-fact arguments of the gentleman from connecticut; but on this day the gentleman had resorted to arguments from newspapers, and revived all the old story of french influence, in the same breath in which he begged them to discard all party feelings and discuss with candor. the gentleman had gone into a wide field, which mr. h. said he would not now explore, but begged time till to-morrow, when he would endeavor to show to the nation and to the world that the arguments used by the gentleman in favor of his resolution were most weighty against it. if patriotism had departed the land, if the streams of foreign corruption had flowed so far that the people were ready to rise in opposition to their government, it was indeed time that foreign intercourse should cease. if the spirit of were no more--if the spirit of commercial speculation had surmounted all patriotism--if this was the melancholy situation of the united states, it was time to redeem the people from this degeneracy, to regenerate them, to cause them to be born again of the spirit of . but he believed he should be able to show that the proposition of the gentleman from connecticut hardly merited the respect or serious consideration of this honorable body. mr. p. said he had expected that in advocating his resolution the gentleman would have told the senate that we should go to war with great britain and france; that he would have risen with patriotic indignation and have called for a more efficient measure. but to his surprise, the gentleman had risen, and with the utmost _sang froid_ told them, let your ships go out, all's well, and nothing is to be apprehended. mr. p. said he would not go into the subject at this moment; he had but risen to express his feelings on the occasion. he wished the subject postponed, the more because he wished to consult a document just laid on their table, to see how the memorials presented a short time ago from those whose cause the gentleman from connecticut undertook to advocate, accorded with the sentiments he had this day expressed for them. mr. lloyd said he considered the question now under discussion as one of the most important that has occurred since the adoption of the federal constitution. it is a subject, said mr. l., deeply implicating, and perhaps determining, the fate of the commerce and navigation of our country; a commerce which has afforded employment for nearly a million and a half of tons of navigation; which has found occupation for hundreds of thousands of our citizens; which has spread wealth and prosperity in every region of our country, and which has upheld the government by furnishing the revenue for its support. a commerce which has yielded an annual amount of exports exceeding one hundred millions of dollars; an amount of exports three times as great as was possessed by the first maritime and commercial nation of the world at the commencement of the last century, when her population was double that of the united states at this time; an amount of exports equal to what great britain, with her navy of a thousand ships, and with all her boasted manufactures, possessed even at so recent a period as within about fifteen years from this date; surely this is a commerce not to be trifled with; a commerce not lightly to be offered up as the victim of fruitless experiment. our commerce has unquestionably been subject to great embarrassment, vexation, and plunder, from the belligerents of europe. there is no doubt but both france and great britain have violated the laws of nations, and immolated the rights of neutrals; but there is, in my opinion, a striking difference in the circumstances of the two nations; the one, instigated by a lawless thirst of universal domination, is seeking to extend an iron-handed, merciless despotism over every region of the globe; while the other is fighting for her _natale solum_, for the preservation of her liberties, and probably for her very existence. the one professes to reluct at the inconvenience she occasions you by the adoption of measures which are declared to be intended merely as measures of retaliation on her enemies, and which she avows she will retract as soon as the causes which occasion them are withdrawn. the other, in addition to depredation and conflagration, treats you with the utmost contumely and disdain; she admits not that you possess the rights of sovereignty and independence, but undertakes to legislate for you, and declares that, whether you are willing or unwilling, she considers you as at war with her enemy; that she had arrested your property, and would hold it as bail for your obedience, until she knew whether you would servilely echo submission to her mandates. there is no doubt that the conduct of these belligerents gave rise to the embargo; but if this measure has been proved by experience to be inoperative as it regards them, and destructive only as it respects ourselves, then every dictate of magnanimity, of wisdom, and of prudence, should urge the immediate repeal of it. the propriety of doing this is now under discussion. the proposition is a naked one; it is unconnected with ulterior measures; and gentlemen who vote for its repeal ought not to be considered as averse from, and they are not opposed to, the subsequent adoption of such other measures as the honor and the interest of the country may require. in considering this subject, it naturally presents itself under three distinct heads: st. as it respects the security which it gave to our navigation, and the protection it offered our seamen, which were the ostensible objects of its adoption. dly. in reference to its effect on other nations, meaning france and great britain, in coercing them to adopt a more just and honorable course of policy towards us: and, dly. as it regards the effects which it has produced and will produce among ourselves. in thus considering it, sir, i shall only make a few remarks on the first head. i have no desire to indulge in retrospections; the measure was adopted by the government; if evil has flowed from it, that evil cannot now be recalled. if events have proved it to be a wise and beneficial measure, i am willing that those to whom it owes its parentage should receive all the honors that are due to them; but if security to our navigation, and protection to our seamen, were the real objects of the embargo, then it has already answered all the effects that can be expected from it. in fact, its longer continuance will effectually counteract the objects of its adoption; for it is notorious, that each day lessens the number of our seamen, by their emigration to foreign countries, in quest of that employment and subsistence which they have been accustomed to find, but can no longer procure, at home; and as it regards our navigation, considered as part of the national property, it is not perhaps very material whether it is sunk in the ocean, or whether it is destined to become worthless from lying and rotting at our wharves. in either case, destruction is equally certain, it is death; and the only difference seems to be between death by a _coup de grace_, or death after having sustained the long-protracted torments of torture. what effect has this measure produced on foreign nations? what effect has it produced on france? the honorable gentleman from connecticut has told you, and told you truly, in an exposé presented by the french minister of foreign affairs to the emperor, that this measure is much applauded: it is called a magnanimous measure of the americans! and in a conversation which is stated to have passed recently at bayonne, between the emperor of france and an american gentleman, it is said, and i believe correctly, that the emperor expressed his approbation of the embargo. i have no doubt that this is the fact; the measure is too consentaneous with his system of policy, not to be approbated by him. so long as the extreme maritime preponderancy of great britain shall continue, with or without the existence of an american embargo, or with or without the british orders in council, france can enjoy but very little foreign commerce, and that little the emperor of france would undoubtedly be willing to sacrifice, provided that, by so doing, he could insure the destruction of a much larger and more valuable amount of british and american commerce. it is therefore apparent, that this measure, considered as a coercive measure against france, is nugatory in the extreme. what, sir, are, or have been its effects on great britain? when the embargo was first laid the nation were alarmed. engaged in a very extended and important commerce with this country, prosecuted upon the most liberal and confidential terms, this measure, whether considered as an act of hostility, or as a mere municipal restrictive regulation, could not but excite apprehension; for most of our writers, in relation to her colonies, had impressed the belief of the dependence of the west india settlements on the united states for the means of subsistence. accordingly, for several months after the imposition of the embargo, we find it remained an object of solicitude with them, nor have i any doubt that the ministry, at that time, partook of the national feeling; for it appears, so late as june, that such a disposition existed with the british ministry, as induced our minister at the court of london to entertain the belief, and to make known to his government the expectation he entertained, that an adjustment would take place of the differences between this country and great britain. but, sir, the apprehensions of the british nation and ministry gradually became weaker; the embargo had been submitted to the never-erring test of experience, and information of its real effects flowed in from every quarter. it was found that, instead of reducing the west indies by famine, the planters in the west indies, by varying their process of agriculture, and appropriating a small part of their plantations for the raising of ground provisions, were enabled, without materially diminishing their usual crops of produce, in a great measure to depend upon themselves for their own means of subsistence. the british ministry also became acquainted about this time (june) with the unexpected and unexampled prosperity of their colonies of canada and nova scotia. it was perceived that one year of an american embargo was worth to them twenty years of peace or war under any other circumstances; that the usual order of things was reversed; that in lieu of american merchants making estates from the use of british merchandise and british capital, the canadian merchants were making fortunes of from ten to thirty or forty thousand pounds in a year, from the use of american merchandise and american capital: for it is notorious, that great supplies of lumber, and pot and pearl ashes, have been transported from the american to the british side of the lakes; this merchandise, for want of competition, the canadian merchant bought at a very reasonable rate, sent it to his correspondents in england, and drew exchange against the shipments; the bills for which exchange he sold to the merchants of the united states for specie, transported by wagon loads at noon-day, from the banks in the united states, over the borders into canada. and thus was the canadian merchant enabled, with the assistance only of a good credit, to carry on an immensely extended and beneficial commerce, without the necessary employment, on his part, of a single cent of his own capital. about this time, also, the revolution in spain developed itself. the british ministry foresaw the advantage this would be to them, and immediately formed a coalition with the patriots: by doing this, they secured to themselves, in despite of their enemies, an accessible channel of communication with the continent. they must also have been convinced, that if the spaniards did not succeed in europe, the colonies would declare themselves independent of the mother country, and rely on the maritime force of great britain for their protection, and thus would they have opened to them an incalculably advantageous mart for their commerce and manufactures; for, having joined the spaniards without stipulation, they undoubtedly expected to reap their reward in the exclusive commercial privileges that would be accorded to them; nor were they desirous to seek competitors for the favor of the spaniards: if they could keep the navigation, the enterprise, and the capital of the united states from an interference with them, it was their interest to do it, and they would, from this circumstance, probably consider a one, two, or three years' continuance of the embargo as a boon to them. mr. smith, of maryland, said he was not prepared to go as largely into this subject as it merited, having neither documents nor papers before him. he would therefore only take a short view of it in his way, and endeavor to rebut a part of the argument of the gentleman from massachusetts, and perhaps to notice some of the observations of the gentleman from connecticut. he perfectly agreed with the latter gentleman that this subject ought to be taken up with coolness, and with temper, and he could have wished that the gentleman from connecticut would have been candid enough to pursue that course which he had laid down for others. had he done it? no. in the course of the discussion, the gentleman had charged it upon some one, he knew not whom, that there was a disposition to break down commerce for the purpose of erecting manufactures on its ruins. if this was the disposition of those who had advocated the embargo, mr. s. said he was not one to go with them, and perfectly corresponded with the gentleman in saying that such a plan would be extremely injurious; that possibly it could not be enforced in the united states; and that, if it could, merchants would conceive themselves highly aggrieved by it. but the gentleman's ideas had no foundation. mr. s. said he had before seen it in newspapers, but had considered it a mere electioneering trick; that nothing like common sense or reason was meant by it, and nobody believed it. the gentleman surely did not throw out this suggestion by way of harmonizing; for nothing could be more calculated to create heat. the gentleman last up, throughout his argument, had gone upon the ground that it is the embargo which has prevented all our commerce; that, if the embargo were removed, we might pursue it in the same manner as if the commerce of the whole world was open to us. if the gentleman could have shown this, he would have gone with him heart and hand; but it did not appear to him that, were the embargo taken off to-morrow, any commerce of moment could be pursued. mr. s. said he was not certain that it might not be a wise measure to take off the embargo; but he was certain that some other measure should be taken before they thought of taking that. and he had hoped that gentleman would have told them what measure should have been taken before they removed the embargo. not so, however. a naked proposition was before them to take off the embargo; and were that agreed to, and the property of america subject to depredations by both the belligerents, they would be foreclosed from taking any measure at all for its defence. for this reason this resolution should properly have gone originally to the committee on the resolution of the gentleman from virginia, (mr. giles.) mr. s. said he was not prepared for a long discussion, he should take but a short view. he would not go back to see which nation had been the first offender. he was not the apologist of any nation, but, he trusted, a fervent defender of the rights, honor, and interests of his own country. by the decrees of france every vessel bound to or from great britain, was declared good prize. and still further; if spoken alone by any british vessel, they were condemned in the french prize courts. when a vessel arrived in the ports of france, mr. s. said, bribery and corruption were made use of in order to effect her condemnation. every sailor on board was separately examined as to what had happened in the course of the voyage; they were told, you will have one-third of the vessel and cargo as your portion of the prize-money, if you will say that your vessel has touched at a british port or has been visited by a british cruiser. of course then, by the decrees of france, all american property that floats is subject to condemnation by the french, if it had come in contact with british hands. were gentlemen willing to submit to this: to raise the embargo, and subject our trade to this depredation? yes, said the gentleman from connecticut, who was willing, however, that our ships should arm and defend themselves. mr. s. said that he had hoped the honorable gentleman would have gone further, and said not only that he would in this case permit our vessels to defend themselves, but to make good prize of any vessel which should impede the trade admitted by the laws of nations. but the gentleman had stopped short of this. by the orders in council, now made law, (said mr. s.,) all neutrals--all _neutrals_, this is a mere word _ad captandum_, as it is well known there is no neutral commerce but american--all american vessels, then, bound to france, or countries in alliance with her, are made good prize in the british courts. when bound to any part of the continent of europe, or any possessions in turkey or asia, they are a good prize, sweden alone excepted. we are then permitted to trade--for it is a permission to trade, since we must acknowledge ourselves indebted to her for any she permits--we are graciously permitted to go to sweden, to which country our whole exports amount to $ , ! this petty trade is generously permitted us as a boon, and this boon will be struck off the list of permission, the moment any difference arises between great britain and sweden. i am aware, sir, that gentlemen will say this may require explanation. i will give it to them. great britain says you shall not trade to any of the countries i have interdicted till you have my leave; pay me a duty and then you may go to any port; pay me a tribute, and then you shall have my license to trade to any ports you choose. what is this tribute? not having the documents before me, i may make an error of a fraction, but in the principle i am correct. on the article of flour, they tell us, you may bring flour to great britain from america, land it, and, if you re-export it, pay into our treasury two dollars on every barrel. for every barrel of flour which we send to spain, portugal, or italy, where the gentleman from massachusetts has correctly told us much of it is consumed, little of it being used in great britain or france, you must pay two dollars besides your freight and insurance. and this tribute is to be paid for a permission to trade. are gentlemen willing to submit to this? on the article of wheat, exported, you must pay in great britain a duty of, i believe, two shillings sterling a bushel, before it can be re-exported. on the important article of cotton they have charged a duty on its exportation of nine pence sterling per lb., equal to the whole value of the article itself in georgia or south carolina. this is in addition to the usual import duty of two pence in the pound. thus, if we wish to go to the continent, we may go on condition of paying a tribute equal to the value of the cotton, in addition to risk or insurance. it is generally understood that two-thirds of the cotton exported by us, may be consumed in england, when all her manufactures are in good work. on the remaining third the people of the southern country are subject to a tribute--on twenty millions of pounds, at the rate of cents per pound. let this be calculated, and it will be seen what tax we must pay for leave to sell that article. the english orders had told us we might trade as usual with the west india islands; but now, believing no doubt that this government has not strength or energy in itself to maintain any system long, what has she done? proclaimed a blockade on the remaining islands of france, so that we are now confined to british islands alone! we are restricted from trading there by blockade, and what security have we, that if the embargo be taken off--for i wish it were off: no man suffers more from it, in proportion to his capital, than i do; but i stand here the representative of the people, and must endeavor to act in such a manner as will best secure their interests; and i pledge myself to join heart and hand with gentlemen to take it off, whenever we can have a safe and honorable trade--that, from our submitting to these interdictions, as a right of great britain, she may not choose to interdict all trade, she being omnipotent, and sole mistress of the ocean, as we were told by the gentleman from connecticut. i have seen a late english pamphlet, called "hints to both parties," said to be by a ministerial writer, to this effect: that great britain, having command over all the seas, could and ought to exclude and monopolize the trade of the world to herself. this pamphlet goes critically into an examination of the subject; says that by a stroke of policy she can cut us off from our extensive trade; that she has the power, and, having the power, she ought to do it. tuesday, november . _the embargo._ mr. moore said the gentleman from connecticut had asked if the embargo had been productive of the consequences expected to result from it when passed? had it not been more injurious to the united states than to foreign nations? it is certainly true (said mr. m.) that it has not been productive of all the effects expected by those who were its advocates when it passed, but it has not had a fair experiment. the law has been violated, and an illicit commerce carried on, by which the belligerents have received such supplies as to have partially prevented its good effects. the publications throughout the united states, and thence in england, that the embargo could not be maintained, have induced the belligerents to believe that we wanted energy, and that we are too fluctuating in our councils to persevere in a measure which requires privations from the people. under these circumstances, it appears to me that the embargo has not had a fair trial. i have ever been of opinion that the only warfare which we could ever carry on to advantage, must be commercial; and, but for evasions and miscalculations on our weakness, we should before this have been suffered to pursue our accustomed trade. it has been asked whether the embargo has not operated more on the united states than on the european powers? in estimating this, it will be proper to take into consideration the evils prevented, as well as the injury done by the embargo. if the embargo had not passed, is it not certain that the whole produce of the united states would have invited attack and offered a bait to the rapacity of the belligerent cruisers? if a few have accidentally escaped them, it is no evidence that, if the embargo had not been laid, the whole would not have been in the hands of the belligerents. that both belligerents have manifested hostilities by edicts which prostrated our commerce, will not be denied by any gentleman. great britain, on a former occasion, passed an order, sent it out secretly, and before our minister was officially notified, it was in full operation. their late orders included all our commerce which was afloat. was it not to be expected that such would have been the policy of great britain in this case, and such our proportionate loss, if the embargo had not been laid, and thus snatched this valuable commerce from their grasp? wednesday, november . _the embargo._ mr. crawford said that one of the objects of the gentleman from connecticut was, no doubt, to obtain information of the effects of the embargo system from every part of the united states. this information was very desirable at the present time, to assist the councils of the nation in an opinion of the course proper to be pursued in relation to it. a government founded, like ours, on the principle of the will of the nation, which subsisted but by it, should be attentive as far as possible to the feelings and wishes of the people over whom they presided. he did not say that the representatives of a free people ought to yield implicit obedience to any portion of the people who may believe them to act erroneously; but their will, when fairly expressed, ought to have great weight on a government like ours. the senate had received several descriptions of the effects produced by the embargo in the eastern section of the union. as the representative of another extreme of this nation, mr. c. said he conceived it his duty to give a fair, faithful, and candid representation of the sentiments of the people whom he had the honor to represent. it was always the duty of a representative to examine whether the effects expected from any given measure, had or had not been produced. if this were a general duty, how much more imperiously was it their duty at this time! every one admitted that considerable sufferings have been undergone, and much more was now to be borne. gentlemen have considered this subject, generally, in a twofold view, (said mr. c.,) as to its effects on ourselves, and as to its effects on foreign nations. i think this a proper and correct division of the subject, because we are certainly more interested in the effects of the measure on ourselves than on other nations. i shall therefore thus pursue the subject. it is in vain to deny that this is not a prosperous time in the united states; that our situation is neither promising nor flattering. it is impossible to say that we have suffered no privations in the year , or that there is a general spirit of content throughout the united states; but i am very far from believing that there is a general spirit of discontent. whenever the measures of the government immediately affect the interest of any considerable portion of its citizens, discontents will arise, however great the benefits which are expected from such measures. one discontented man excites more attention than a thousand contented men, and hence the number of discontented is always overrated. in the country which i represent, i believe no measure is more applauded or more cheerfully submitted to than the embargo. it has been viewed there as the only alternative to avoid war. it is a measure which is enforced in that country at every sacrifice. at the same time that i make this declaration, i am justified in asserting that there is no section of the union whose interests are more immediately affected by the measure than the southern states--than the state of georgia. we have been told by an honorable gentleman, who has declaimed with great force and eloquence against this measure, that great part of the produce of the eastern country has found its way into market; that new ways have been cut open, and produce has found its way out. not so with us; we raise no provisions, except a small quantity of rice, for exportation. the production of our lands lies on our hands. we have suffered, and now suffer; yet we have not complained. the fears of the southern states particularly have been addressed by the gentleman from connecticut, by a declaration that great britain, whose fleets cover the ocean, will certainly find a source from which to procure supplies of those raw materials which she has heretofore been in the habit of receiving from us; and that having thus found another market, when we have found the evil of our ways, she will turn a deaf ear to us. by way of exemplification, the gentleman cited a familiar example of a man buying butter from his neighbors. it did not appear to me that this butter story received a very happy elucidation. in the country in which he lives there are so many buyers and so many sellers of butter, that no difficulty results from a change of purchasers or customers. not so with our raw material. admitting that britain can find other markets with ease, there is still a great distinction between this and the gentleman's butter case. when a man sells butter he receives money or supplies in payment for it. his wants and wishes and those of his purchasers are so reciprocal, that no difficulty can ever arise. but great britain must always purchase raw materials of those who purchase her manufactures. it is not to oblige us that she takes our raw materials, but it is because we take her manufactures in exchange. so long as this state of things continues, so long they will continue to resort to our market. i have considered the gentleman's argument on this point as applied to the feelings of the southern country. no article exported from the united states equals cotton in amount. if then we are willing to run the risk, i trust no other part of the united states will hesitate on this subject. another reason offered by the gentleman from connecticut, and a substantial one if true, is, that this measure cannot be executed. if this be the case, it is certainly in vain to persevere in it, for the non-execution of any public law must have a bad tendency on the morals of the people. but the facility with which the gentleman represents these laws to have been evaded, proves that the morals of the evaders could not have been very sound when the measure was adopted; for a man trained to virtue will not, whatever facility exists, on that account, step into the paths of error and vice. although i believe myself that this measure has not been properly executed, nor in that way in which the situation of our country might reasonably have induced us to expect, yet it has been so far executed as to produce some good effect. so far as the orders and decrees remain in full force, so far it has failed of the effect hoped from it. but it has produced a considerable effect, as i shall attempt to show hereafter. in commenting on this part of the gentleman's observations, it becomes proper to notice, not an insinuation, but a positive declaration that the secret intention of laying the embargo was to destroy commerce; and was in a state of hostility to the avowed intention. this certainly is a heavy charge. in a government like this, we should act openly, honestly, and candidly; the people ought to know their situation, and the views of those who conduct their affairs. it is the worst of political dishonesty to adopt a measure, and offer that reason as a motive for it which is not the true and substantial one. the true and substantial reason for the embargo, the gentleman says he believes, was to destroy commerce, and on its ruins to raise up domestic manufactures. this idea, i think, though not expressly combated by the observations of the gentleman from delaware, (mr. white,) was substantially refuted by him. that gentleman, with great elegance and something of sarcasm, applied to the house to know how the treasury would be filled in the next year; and observed that the "present incumbent of the presidential palace" would not dare to resort to a direct tax, because a former administration had done so and felt the effects of it, insinuating that the present administration did not possess courage enough to attempt it. now, i ask, if they dare not resort to a direct tax, excise laws, and stamp acts, where will they obtain money? in what way will the public coffers be filled? the gentleman must acknowledge that all our present revenue is derived from commerce, and must continue to be so, except resort be had to a direct tax, and the gentleman says we have not courage enough for that. the gentleman from connecticut must suppose, if the gentleman from delaware be correct, that the administration seeks its own destruction. we must have revenue, and yet are told that we wish to destroy the only way in which it can be had, except by a direct tax; a resort to which, it is asserted, would drive us from the public service. but we are told, with a grave face, that a disposition is manifested to make this measure permanent. the states who call themselves commercial states, when compared with the southern states, may emphatically be called manufacturing states. the southern states are not manufacturing states, while the great commercial states are absolutely the manufacturing states. if this embargo system were intended to be permanent, those commercial states would be benefited by the exchange, to the injury of the southern states. it is impossible for us to find a market for our produce but by foreign commerce; and whenever a change of the kind alluded to is made, that change will operate to the injury of the southern states more than to the injury of the commercial states, so called. but another secret motive with which the government is charged to have been actuated is, that this measure was intended and is calculated to promote the interests of france. to be sure none of the gentlemen have expressly said that we are under french influence, but a resort is had to the exposé of the french minister, and a deduction thence made that the embargo was laid at the wish of bonaparte. the gentleman from connecticut told us of this exposé for this purpose; and the gentleman from massachusetts appeared to notice it with the same view. now we are told that there is no danger of war, except it be because we have understood that bonaparte has said there shall be no neutrals; and that, if we repeal the embargo, we may expect that he will make war on us. and this is the only source from whence the gentleman could see any danger of war. if this declaration against neutrality which is attributed to the gallic emperor be true, and it may be so, his gallic majesty could not pursue a more direct course to effect his own wishes than to declare that our embargo had been adopted under his influence. and unless the british minister had more political sagacity than the gentleman who offered the evidence of the exposé in proof of the charge, it would produce the very end which those gentlemen wished to avoid--a war with great britain; for she would commence the attack could she believe this country under the influence of france. i would just as much believe in the sincerity of that exposé, as mr. canning's sincerity, when he says that his majesty would gladly make any sacrifice to restore to the commerce of the united states its wonted activity. no man in the nation is silly enough to be gulled by these declarations; but, from the use made of them, we should be led to think otherwise, were it not for the exercise of our whole stock of charity. now, i cannot believe that any man in this nation does believe in the sincerity of mr. canning's expressions, or that bonaparte believes that the embargo was laid to promote his interest. i cannot believe that there is any man in this nation who does candidly and seriously entertain such an opinion. the gentleman from massachusetts says it is true that a considerable alarm was excited in england when the news of the embargo arrived there; that they had been led to believe, from their writers and speakers, that a discontinuance of their intercourse with this country would be productive of most injurious consequences; but that they were now convinced that all their writers and statesmen were mistaken, and that she can suffer a discontinuance of intercourse without being convulsed or suffering at all. to believe this requires a considerable portion of credulity, especially when the most intelligent men affirm to the contrary. in the last of march or the first of april last, we find, on an examination of merchants at the bar of the british house of commons, that the most positive injury must result from a continuance of non-intercourse. it is not possible that our merchants on this side of the water, however intelligent they may be, can be as well acquainted with the interests of great britain as her most intelligent merchants. this alarm, however, the gentleman has told us, continued through the spring and dissipated in the summer. it is very easy to discover the cause of the dissipation of this alarm. it was not because the loss of intercourse was not calculated to produce an effect, but it proceeded from an adventitious cause, which could not have been anticipated--the revolution in spain; and there is no intelligent man who will not acknowledge its injurious effects on our concerns. no sooner did the british ministers see a probability that the struggle between the spanish patriots and france would be maintained, than they conceived hopes that they might find other supplies; and then they thought they might give to the people an impulse by interesting the nation in the affairs of spain, which would render lighter the effects of our embargo. this is the cause of the change in mr. canning's language; for every gentleman in the house knows that a very material change took place in it in the latter part of the summer. if then the embargo has not produced the effects calculated from it, we have every reason to believe that its failure to produce these effects has been connected with causes wholly adventitious, and which may give way if the nation adheres to the measure. if, however, there be any probability that these causes will be continued for a long time, we ought to abandon it. i am not in favor of continuing any measure of this kind, except there be a probability of its producing some effect on those who make it necessary for us to exercise this act of self-denial. when i first saw the account of the revolution in spain, my fears were excited lest it should produce the effect which it has done. as soon as i saw the stand made by the spanish patriots, i was apprehensive that it might buoy up the british nation under the sufferings arising from the effects of their iniquitous orders, which, compared with the sufferings which we ourselves have borne, have been as a hundred to one. if there be evidence that the effects of this measure will yet be counteracted by recent events in spain, i will abandon it, but its substitute should be war, and no ordinary war--i say this notwithstanding the petitions in the other branch of the legislature, and the resolutions of a state legislature which have lately been published. when i read the resolutions, called emphatically the essex resolutions, i blush for the disgrace they reflect on my country. we are told there that this nation has no just cause of complaint against great britain; and that all our complaints are a mere pretext for war. i blush that any man belonging to the great american family should be so debased, so degraded, so lost to every generous and national feeling, as to make a declaration of this kind. it is debasing to the national character. how are these orders and decrees to be opposed but by war, except we keep without their reach? if the embargo produces a repeal of these edicts, we effect it without going to war. whenever we repeal the embargo we are at war, or we abandon our neutral rights. it is impossible to take the middle ground, and say that we do not abandon them by trading with great britain alone. you must submit, or oppose force to force. can arming our merchant vessels, by resisting the whole navy of great britain, oppose force to force? it is impossible. the idea is absurd. by way of ridiculing the embargo, the gentleman from connecticut, in his familiar way, has attempted to expose this measure. he elucidated it by one of those familiar examples by which he generally exemplifies his precepts. he says your neighbor tells you that you shall not trade with another neighbor, and you say you will not trade at all. now this, he says, is very magnanimous, but it is a kind of magnanimity with which he is not acquainted. now let us see the magnanimity of that gentleman, and see if it savors more of true magnanimity than our course. great britain and france each say that we shall not trade with the other. we say we will not trade with either of them, because we believe our trade will be important to both of them. the gentleman says it is a poor way of defending the national rights. suppose we pursue his course. great britain says we shall not trade to france; we say we will not, but will obey her. we will trade upon such terms as she may impose. "this will be magnanimity indeed; this will be defending commerce with a witness!" it will be bowing the neck to the yoke. the opposition to taxation against our consent, at the commencement of the revolution, was not more meritorious than the opposition to tribute and imposition at the present day. i cannot, for my soul, see the difference between paying tribute and a tacit acquiescence in the british orders in council. true, every gentleman revolts at paying tribute. but where is the difference between that and suffering yourself to be controlled by the arbitrary act of another nation? if you raise the embargo you must carry your produce to great britain and pay an arbitrary sum before you can carry it elsewhere. if it remains there, the markets will be glutted and it will produce nothing. for it appears, from the very evidence to which i have before alluded, that at least four-fifths of our whole exports of tobacco must go to england and pay a tax before we could look for a market elsewhere, and that out of seventy-five thousand hogsheads raised in this country, not more than fifteen thousand are consumed in great britain. where does the remainder usually go? why, to the ports of the continent. i ask, then, if the whole consumption of great britain be but fifteen thousand hogsheads, if an annual addition of sixty thousand hogsheads be thrown into that market, would it sell for the costs of freight? certainly not. the same would be the situation of our other produce. the gentleman from delaware (mr. white) has said, that, by repealing the embargo, we can now carry on a safe and secure trade to the extent of nearly four-fifths of the amount of our domestic productions. there is nothing more delusive, and better calculated to impose on those who do not investigate subjects, than these calculations in gross. if the gentleman will take the trouble to make the necessary inquiries, he will find that instead of great britain taking to the amount he supposes of our domestic productions, she takes nothing like it. it is true that a large proportion of our domestic exports is shipped ostensibly for great britain; but it is equally true that a very large proportion of these very exports find their way into the continental ports. for the british merchants in their examination before the house of commons, already alluded to, say that three-fourths of their receipts for exportation to the united states have been usually drawn from the continent; and that even if the embargo was removed and the orders in council were continued, they must stop their exportation, because the continental ports would be closed against american vessels; because their coasts swarm with english cruisers, the french must know that the american vessels attempting to enter have come from an english port. that they had facilities of conveyance to the continent prior to the orders in council, the merchants acknowledged; and when requested to explain the mode of conveyance, they begged to be excused. no doubt every gentleman has seen these depositions, or might have seen them, for they have been published in almost every paper on the continent. they have opened to me and to my constituents a scene perfectly new. they tell you that the berlin decree was nothing. notwithstanding that decree, they had a facility of conveying produce into the continental ports; but the orders of council completely shut the ports of the continent against the entrance of american vessels. on this point there was no contrariety of opinion; and several of these merchants declared that they had sent vessels to the continent a very few days before the date of the orders of council. this clearly shows that any conclusion to be drawn from the gross amount of exports must be fallacious, and that probably three-fourths ought to be deducted from the gross amount. this statement of the gentleman from delaware, which holds out to the public the prospect of a lucrative trade in four-fifths of their exports, will certainly have a tendency to render them uneasy under the privations which they are called upon to suffer by the iniquitous measures of foreign nations. although the statement was extremely delusive, i do not say that the gentleman meant to delude by it. this, however, being the effect of the gentleman's assertion, i am certainly warranted in saying that the evidence of the british merchants who carry on this trade, is better authority than the gentleman's statements. but admit, for the sake of argument, and on no other ground would i admit it, that these gross statements are correct; and that, at the time the embargo was adopted, these orders in council notwithstanding, the trade of the united states could have been carried on to this extent. what security have we, if the embargo had not been laid, after submitting and compromitting the national dignity and independence, that the british aggressions and orders in council would have stopped at the point at which we find them? have we not conclusive evidence to the contrary? are we not officially notified that the french leeward islands are declared by proclamation in a state of blockade? and do we not know that this is but carrying into effect a report of the committee of the british house of commons on the west india islands, in which this measure is recommended, and in which it is stated that his britannic majesty's west india subjects ought to receive further aid by placing these islands in a state of blockade? i can see in this measure nothing but a continuation of the system recommended last winter in this report, and published--for the information of the united states, i suppose. if the embargo should be repealed, and our vessels suffered to go out in the face of the present orders in council and blockading decrees and proclamations, mr. c. said, they would but expose us to new insults and aggressions. it was in vain to talk about the magnanimity of nations. it was not that magnanimity which induced nations as well as men to act honestly; and that was the best kind of magnanimity. the very magnanimity which had induced them to distress our commerce, would equally induce them to cut off the pitiful portion they had left to us. in a general point of view, there was now no lawful commerce. no vessel could sail from the united states without being liable to condemnation in britain or france. if they sailed to france, mr. c. said, they were carried into britain; if they sailed to britain, they were carried into france. now, he asked, whether men who had any regard to national honor would consent to navigate the ocean on terms so disgraceful? we must be cool calculators, indeed, if we could submit to disgrace like this! the last reason offered by the supporters of the present resolution, mr. c. said, may properly be said to be an argument _in terrorem_. the gentleman from massachusetts says, by way of abstract proposition, that a perseverance in a measure opposed to the feelings and interests of the people may lead to opposition and insurrection; but the gentleman from connecticut uses the same expressions as applicable to the embargo. it may be a forcible argument with some gentlemen, and most likely may have had its effect on those who intended it to produce an effect on others. but i trust that this house and this nation are not to be addressed in this way. our understandings may be convinced by reason, but an address to our fears ought to be treated with contempt. if i were capable of being actuated by motives of fear, i should be unworthy of the seat which i hold on this floor. if the nation be satisfied that any course is proper, it would be base and degrading to be driven from it by the discordant murmurs of a minority. we are cautioned to beware how we execute a measure with which the feelings of the people are at war. i should be the last to persist in a measure which injuriously affected the interest of the united states; but no man feels more imperiously the duty of persevering in a course which is right, notwithstanding the contrary opinion of a few; and though i may regret and respect the feelings of these few, i will persist in the course which i believe to be right, at the expense even of the government itself. mr. mitchill said he was not prepared to vote on the question of repealing the embargo laws, in the precise form in which it had been brought before the senate. there was as yet a want of information; for certain additional documents, expected from the executive, had not yet been communicated, and the select committee to which the part of the message concerning the foreign relations of the country was lately referred, had not brought forward a report. he would have been better pleased if the proposition had been so framed as to have expressed indignation at the injuries our government had received from foreign nations. then he would cheerfully have given it his concurrence. but now, when those who are willing to do something, though not exactly what the motion proposes, are made to vote directly against a removal of the existing restrictions upon our commerce, their situation is rather unpleasant; indeed, it is unfair, inasmuch as they must either give their assent to a measure, to the time and manner of which they may be averse, or they must vote negatively in a case which, but for some incidental or formal matter, would have met their hearty approbation. he could, therefore, have wished that the question had been presented to the house in such terms as to afford an opportunity of expressing their sense of the wrongs our nation had endured from foreign sovereigns, and of the restrictions laid upon american commerce by their unjust regulations, as well as on the further restrictions that, under the pressure of events, it had been thought necessary for our own legislature to impose. i now come to the year , an eventful year to the foreign commerce of our people. an extravagant and armed trade had for a considerable time been carried on by some of our citizens with the emancipated or revolted blacks of hayti. the french minister, conformably to the instructions of his government, remonstrated against this traffic as ungracious and improper; and under an impression that our citizens ought to be restrained from intercourse with the negroes of hispaniola, congress passed an act forbidding that altogether. this was the second time that our government circumscribed the commercial conduct of its citizens. it was also during this year that memorials were forwarded to the executive and legislative branches of our government by the merchants of our principal seaports, stating the vexations of their foreign commerce to be intolerable, and calling in the most earnest terms for relief or redress. these addresses were mostly composed with great ability; it seemed as if the merchants were in danger of total ruin. their situation was depicted as being deplorable in the extreme. the interposition of their government was asked in the most strenuous and pressing terms; and your table, mr. president, was literally loaded with petitions. the chief cause of this distress was briefly this: these citizens of the united states were engaged during the war in europe, in a commerce with enemies' colonies not open in time of peace; by this means, the produce of the french west indies was conveyed under the neutral flag to the mother country. great britain opposed the direct commerce from the colony to france through the neutral bottom. the neutral then evaded the attempt against him by landing the colonial produce in his own country, and after having thus neutralized or naturalized it, exported it under drawback for bordeaux or marseilles; this proceeding was also opposed by the british, and much property was captured and condemned in executing their orders against it. their writers justified their conduct by charging fraud upon the neutral flag, and declaring that under cover of them a "war in disguise" was carried on, while on our side the rights of neutrals were defended with great learning and ability in a most profound investigation of the subject. this same year was ushered in by a proclamation of general ferrand, the french commandant at st. domingo, imposing vexations on the trade of our citizens; and a partial non-importation law was enacted against great britain by congress about the middle of april. but these were not all the impediments which arose. notices were given to the american minister in london of several blockades. the chief of these was that of the coast, from the elbe to brest inclusive, in may. and here, as it occurs to me, may i mention the spurious blockade of curaçoa, under which numerous captures were made. and lastly, to complete the catalogue of disasters for , and to close the woful climax, the french decree of berlin came forth in november, and, as if sporting with the interests and feelings of americans, proclaimed great britain and her progeny of isles to be in a state of blockade. hopes had been entertained that such a violent and convulsed condition of society would not be of long duration. experience, however, soon proved that the infuriate rage of man was as yet unsatisfied, and had much greater lengths to go. for early in the succeeding year ( ), an order of the british council was issued, by which the trade of neutrals, and of course of american citizens, was interdicted from the port of one belligerent to the port of another. and in the ensuing may, the rivers elbe, weser, and ems, with the interjacent coasts were declared by them to be in a state of blockade, and a similar declaration was made on their part to neutrals in regard to the straits of the dardanelles and the city of smyrna. but these were but subordinate incidents in this commercial drama; the catastrophe of the tragedy was soon to be developed. "on the d of june, by a formal order from a british admiral, our frigate chesapeake, leaving her port for a distant service, was attacked by one of these vessels, which had been lying in our harbors under the indulgence of hospitality, was disabled from proceeding, had several of her crew killed, and four taken away." immediately the president by proclamation interdicted our harbors and waters to all british armed vessels, and forbade intercourse with them. under an uncertainty how far hostilities were intended, and the town of norfolk being threatened with an immediate attack, a sufficient force was ordered for the protection of that place, and such other preparations commenced and pursued as the prospect rendered proper. in furtherance of these schemes, a proclamation was published, holding all their absent seamen to their allegiance, recalling them from foreign services, and denouncing heavy penalties for disobedience. the operation of this upon the american merchant service would have been very sensibly felt. many british born subjects were in the employ of our merchants, and that very government, which claimed as a british subject every american citizen who had been but two years a seaman in their service, refused to be bound by their own rule in relation to british subjects who had served an equal term on board the ships of the united states. but this was not all. the month of november was distinguished by an order retaliating on france a decree passed by her some time before, declaring the sale of ships by belligerents to be illegal; and thus, by virtue of concurrent acts of these implacable enemies, the poor neutral found it impossible to purchase a ship either from a subject of great britain or of france. that season of gloom was famous, or rather infamous, for another act prohibiting wholly the commerce of neutrals with the enemies of great britain, and for yet another, pregnant with the principles of lordly domination on their part, and of colonial vassalage on our, by which the citizens of these independent and sovereign states are compelled to pay duties on their cargoes in british ports, and receive licenses under the authority of that government, as a condition of being permitted to trade to any part of europe in possession of her enemies. this outrageous edict on the part of britain was succeeded by another on the side of france, equalling, or if possible, surpassing it in injustice. in december came forth the decree of milan, enforcing the decree of berlin against american trade; dooming to confiscation every vessel of the united states that had been boarded or even spoken to by a briton, and encouraging, by the most unjustifiable lures, passengers and sailors to turn informers. the abominable mandate was quickly echoed in spain, and sanctioned by the approbation of his most catholic majesty. it has been executed with shocking atrocity. in addition to other calamities, the property of neutrals has been sequestered in france, and their ships burned by her cruisers on the ocean. such, mr. president, was the situation of the european world, when congress deemed it necessary to declare an embargo on our own vessels. denmark and prussia, and russia, and portugal, had become associated or allied with france; and, with the exception of sweden, the commerce of our citizens was prohibited, by the mutually vindictive and retaliating belligerents, from the white sea to the adriatic. american ships and cargoes were declared the prize and plunder of the contending powers. the widely-extended commerce of our people was to be crushed to atoms between the two mighty millstones, or prudently withdrawn from its dangerous exposure, and detained in safety at home. policy and prudence dictated the latter measure. and as the ocean was become the scene of political storm and tempest, more dreadful than had ever agitated the physical elements, our citizens were admonished to partake of that security for their persons and property, in the peaceful havens of their country, which they sought in vain on the high seas and in european harbors. the regulations, so destructive to our commerce, were not enacted by us. they were imposed upon us by foreign tyrants. congress had no volition to vote upon the question. in the shipwreck of our trade, all that remained for us to do, was to save as much as we could from perishing, and as far as our efforts would go, to prevent a total loss. i touch, with a delicate hand, the mission of mr. rose. the arrival of this envoy extraordinary from britain was nearly of the same date with an order of his government, blockading carthagena, cadiz, and st. lucar, and the intermediate ports of spain, and thereby vexing the commerce of american citizens. the unsuccessful termination of his negotiation has been but a few months since followed by a refusal on the part of his government to rescind its orders, that work so much oppression to our commerce, on condition of having the embargo suspended in respect to theirs. and the french ministry has treated a similar friendly and specific overture, from our executive, with total disregard. in addition to all which we learn, from the highest source of intelligence, that the british naval commander at barbadoes did, about the middle of october, declare the french leeward caribbean islands to be in a state of strict blockade, and cautioning neutrals to govern themselves accordingly, under pain of capture and condemnation. thursday, november . _the embargo._ mr. giles addressed the senate: mr. president: having during the recess of congress retired from the political world, and having little agency in the passing political scenes, living in a part of the country, too, where there is little or no difference in political opinions, and where the embargo laws are almost universally approved, i felt the real want of information upon the subject now under discussion. i thought i knew something of the general objects of the embargo laws, and i had not been inattentive to their general operations upon society, as far as i had opportunities of observing thereupon. when i arrived here, and found that this subject had excited so much sensibility in the minds of many gentlemen i met with, as to engross their whole thoughts, and almost to banish every other topic of conversation, i felt also a curiosity to know what were the horrible effects of these laws in other parts of the country, and which had escaped my observation in the part of the country in which i reside. of course, sir, i have given to the gentlemen, who have favored us with their observations on both sides of the question under consideration, the most careful and respectful attention, and particularly to the gentlemen representing the eastern section of the union, where most of this sensibility had been excited. i always listen to gentlemen from that part of the united states with pleasure, and generally receive instruction from them; but on this occasion, i am reluctantly compelled to acknowledge, that i have received from them less satisfaction and less information than usual; and still less conviction. it was hardly to have been expected, mr. president, that after so many angry and turbulent passions had been called into action, by the recent agitations throughout the whole united states, resulting from the elections by the people, to almost all the important offices within their gift, and particularly from the elections of electors for choosing the president and vice president of the united states, that gentlemen would have met here perfectly exempt from the feelings which this state of things was naturally calculated to inspire. much less was it to have been expected, sir, that gentlemen who had once possessed the power of the nation, and who, from some cause or other, had lost it; (a loss, which they now tell us they _but too well remember_, and i fear, might have added, _too deeply deplore_,) gentlemen too, sir, who at one time during the electioneering scene had indulged the fond and delusive hope, that through the privations necessarily imposed upon our fellow-citizens, by the unexampled aggressions of the belligerent powers, they might once more find their way to office and power, and who now find themselves disappointed in this darling expectation--it was not at all to be expected, sir, that these gentlemen should now appear here, perfectly exempt from the unpleasant feelings which so dreadful a disappointment must necessarily have produced. it was a demand upon human nature for too great a sacrifice; and however desirable such an exemption might have been at the present moment, and however honorable it would have been to those gentlemen, it was not expected. but, sir, i had indulged a hope that the extraordinary dangers and difficulties pressed upon us by the aggressing belligerents, attended, too, with so many circumstances of indignity and insult, would have awakened a sensibility in the bosom of every gentleman of this body, which would have wholly suppressed, or at least suspended, these unpleasant feelings, until some measures, consulting the general interests and welfare of the people, could have been devised, to meet, resist, and if possible, to subdue the extraordinary crisis. but, sir, even in this hope, too, i have been totally disappointed. i was the more encouraged in this hope, when upon opening this debate the gentleman from connecticut (mr. hillhouse) seemed sensible of this sacred obligation, imposed by the crisis; when he exhorted us, in conducting our deliberations, utterly to discard the influence of party spirit. it would have given me great pleasure, sir, if the gentleman had afforded us a magnanimous example of a precept so admirably suited to the present state of things. but in this too, sir, i have been unfortunately disappointed. that gentleman's observations consisted almost exclusively of retrospective animadversions upon the original objects and horrible effects of the embargo laws, without seeming to think it was worth his attention to favor us with any reflections upon the prospective course of measures which the people's interests, the public safety, and general welfare, so imperiously demand. that gentleman represented the embargo laws as mere acts of volition, impelled by no cause nor necessity; whilst the british orders, and french edicts, were scarcely glanced at, and certainly formed the least prominent feature of his observations. he represented these laws as a wanton and wicked attack upon commerce, with a view to its destruction, whilst he seemed scarcely to have recollected the extraordinary dangers and difficulties which overspread the ocean--indeed, sir, he described the ocean as perfectly free from dangers and difficulties, unruffled by any storms, and that we had nothing to do but to unfurl our canvas to the wind, that it would be filled with prosperous gales, and wafted to the ports of its destination, where it would be received with open arms of friendship and hospitality. i wish, sir, with all my heart, the gentleman could but realize these dreaming visions; their reality would act like a, magic spell upon the embargo laws, and dissipate them in a moment! but, alas! sir, when we come to look at realities, when we turn our eyes upon the real dangers and difficulties which do overspread the ocean, we shall find them so formidable, that the wisdom of our undivided counsels, and the energy of our undivided action, will scarcely be sufficient to resist and conquer them. to my great regret, sir, we now see, that the united states cannot even hope to be blessed with this union of mind and action, although certainly their dearest interests demand it. mr. president, perhaps the greatest inconvenience attending popular governments, consists in this: that whenever the union and energy of the people are most required to resist foreign aggressions, the pressure of these aggressions presents most temptations to distrusts and divisions. was there ever a stronger illustration of the truth and correctness of this observation than the recent efforts made under the pressure of the embargo laws? the moment the privations, reluctantly but necessarily imposed by these laws, became to be felt, was the moment of signal to every political demagogue, who wished to find his way to office and to power, to excite the distrusts of the people, and then to separate them from the government of their choice, by every exaggeration which ingenuity could devise, and every misrepresentation which falsehood could invent: nothing was omitted which it was conceived would have a tendency to effect this object. but, mr. president, the people of the united states must learn the lesson now, and at all future times, of disrespecting the bold and disingenuous charges and insinuations of such aspiring demagogues. they must learn to respect and rally round their own government, or they never can present a formidable front to a foreign aggressor. sir, the people of the united states have already learnt this lesson. they have recently given an honorable and glorious example of their knowledge in this respect. they have, in their recent elections, demonstrated to the nation and to the world that they possess too much good sense to become the dupes of these delusive artifices, and too much patriotism to desert their government when it stands most in need of their support and energy. the gentleman from connecticut (mr. hillhouse) has made the most strict, and i had almost said, uncharitable scrutiny into the objects and effects of the embargo laws, in the delusive hope, i presume, of obtaining a triumph over his political adversaries. i propose to follow the gentleman, in a fair and candid comparison of information and opinions upon this subject; and i shall do so in the most perfect confidence, that whenever a thorough examination of the objects and effects of the embargo laws shall be made known, and the merits of the measure fully understood, that there is not a man in the united states who will not applaud and support the administration for its adoption, who has the uncontaminated heart of an american throbbing within his bosom. sir, i have always understood that there were two objects contemplated by the embargo laws. the first, precautionary, operating upon ourselves. the second, coercive, operating upon the aggressing belligerents. precautionary, in saving our seamen, our ships, and our merchandise, from the plunder of our enemies, and avoiding the calamities of war. coercive, by addressing strong appeals to the interests of both the belligerents. the first object has been answered beyond my most sanguine expectations. to make a fair and just estimate of this measure, reference should be had to our situation at the time of its adoption. at that time, the aggressions of both the belligerents were such, as to leave the united states but a painful alternative in the choice of one of three measures, to wit, the embargo, war, or submission. i know that this position has not been admitted, though but faintly denied in the discussion. i shall however proceed upon this hypothesis for the present, and in the course of my observations will prove its correctness by the statements of the gentlemen in favor of the resolution. before the recommendation of the measure, the laudable and provident circumspection of the administration had obtained tolerably correct estimates of the amount and value of the ships and merchandise belonging to the citizens of the united states then afloat, and the amount and value of what was shortly expected to be afloat; together with a conjectural statement of the number of the seamen employed in the navigation thereof. it was found that merchandise to the value of one hundred millions of dollars was actually afloat, in vessels amounting in value to twenty millions more. that an amount of merchandise and vessels equal to fifty millions of dollars more, was expected to be shortly put afloat, and that it would require fifty thousand seamen to be employed in the navigation of this enormous amount of property. the administration was informed of the hostile edicts of france previously issued, and then in a state of execution, and of an intention on the part of great britain to issue her orders, the character and object of which were also known. the object was, to sweep this valuable commerce from the ocean. the situation of this commerce was as well known to great britain as to ourselves, and her inordinate cupidity could not withstand the temptation of the rich booty she vainly thought within her power. this was the state of information at the time this measure was recommended. the president of the united states, ever watchful and anxious for the preservation of the persons and property of all our fellow-citizens, but particularly of the merchants, whose property is most exposed to danger, and of the seamen whose persons are also most exposed, recommended the embargo for the protection of both; and it has saved and protected both. let us now suppose, for a moment, that the president, possessed of this information, had not apprised the merchants and seamen of their danger, and had recommended no measure for their safety and protection; would he not in that case have merited and received the reproaches which the ignorance or ingratitude of merchants and others have so unjustly heaped upon him, for his judicious and anxious attentions to their interests? it is admitted by all, that the embargo laws have saved this enormous amount of property, and this number of seamen, which, without them, would have forcibly gone into the hands of our enemies, to pamper their arrogance, stimulate their injustice, and increase their means of annoyance. i should suppose, mr. president, this saving worth some notice. but, sir, we are told that instead of protecting our seamen, it has driven them out of the country, and into foreign service. i believe, sir, that this fact is greatly exaggerated. but, sir, suppose for a moment that it is so, the government has done all, in this respect, it was bound to do. it placed these seamen in the bosoms of their friends and families, in a state of perfect security; and if they have since thought proper to abandon these blessings, and emigrate from their country, it was an act of choice, not of necessity. but, what would have been the unhappy destiny of these brave tars, if they had been permitted to have been carried into captivity, and sent adrift on unfriendly and inhospitable shores? why, sir, in that case, they would have had no choice; necessity would have driven them into a hard and ignominious service, to fight the battles of the authors of their dreadful calamities, against a nation with which their country was at peace. and is the bold and generous american tar to be told, that he is to disrespect the administration for its anxious and effectual attentions to his interests? for relieving him from a dreadful captivity? even under the hardships he does suffer, and which i sincerely regret, every generous feeling of his noble heart would repel the base attempt with indignation. but, sir, the american seamen have not deserted their country; foreign seamen may and probably have gone into foreign service; and, for one, i am glad of it. i hope they will never return; and i am willing to pass a law, in favor of the true-hearted american seamen, that these foreign seamen never should return. i would even prohibit them from being employed in merchant vessels. the american seamen have found employment in the country; and whenever the proper season shall arrive for employing them on their proper element, you will find them, like true birds of passage, hovering in crowds upon your shores. whilst considering this part of the subject, i cannot help expressing my regret that, at the time of passing our embargo laws, a proportion of our seamen was not taken into the public service; because, in my judgment, the nation required their services, and it would have been some alleviation to their hardships, which the measure peculiarly imposed upon them, as a class of citizens, by affecting their immediate occupation; and the other classes, as well as the public treasury, were able to contribute to their alleviation; and i am willing to do the same thing at this time. indeed, its omission is the only regret i have ever felt, at the measures of the last congress. i like the character--i like the open frankness, and the generous feelings of the honest american tar; and, whenever in my power, i am ready to give, and will with pleasure give him my protection and support. one of the most important and agreeable effects of the embargo laws, is giving these honest fellows a safe asylum. but, sir, these are not the only good effects of the embargo. it has preserved our peace--it has saved our honor--it has saved our national independence. are these savings not worth notice? are these blessings not worth preserving? the gentleman from delaware (mr. white) has, indeed, told us, that under the embargo laws, the united states are bleeding at every pore. this, surely, sir, is one of the most extravagant effects that could have been ascribed to these laws by the frantic dreams of the most infatuated passions. bloodletting is the last effect that i ever expected to hear ascribed to this measure. i thought it was of the opposite character; but it serves to show that nothing is too extravagant for the misguided zeal of gentlemen in the opposition. i have cast my eyes about in vain to discover those copious streams of blood; but i neither see nor hear any thing of them from any other quarter. so far from the united states bleeding at every pore, under the embargo, it has saved them from bleeding at any pore; and one of the highest compliments to the measure is, that it has saved us from the very calamity which the gentleman attributed to it; but which, thanks to our better stars and wiser counsels, does not exist. mr. president, the eyes of the world are now turned upon us; if we submit to these indignities and aggressions, great britain herself would despise us; she would consider us an outcast among nations; she would not own us for her offspring: france would despise us; all the world would despise us; and what is infinitely worse, we should be compelled to despise ourselves! if we resist, we shall command the respect of our enemies, the sympathies of the world, and the noble approbation of our own consciences. mr. president, our fate is in our own hands; let us have union and we have nothing to fear. so highly do i prize union, at this awful moment, that i would prefer any one measure of resistance with union, to any other measure of resistance with division; let us then, sir, banish all personal feelings; let us present to our enemies the formidable front of an indissoluble band of brothers, nothing else is necessary to our success. mr. president, unequal as this contest may seem; favored as we are by our situation, and under the blessing of a beneficent providence, who has never lost sight of the united states in times of difficulty and trial, i have the most perfect confidence, that if we prove true to ourselves, we shall triumph over our enemies. deeply impressed with these considerations, i am prepared to give the resolution a flat and decided negative. friday, november . john milledge, from the state of georgia, attended. wednesday, november . _the embargo._ mr. pickering.--mr. president: i am aware, sir, of the consequences of advancing any thing from which conclusions may be drawn adverse to the opinions of our own administration, which, by many, are conceived to be indisputably just. merely to state these questions, and to mention such arguments as the british government may, perhaps, have urged in their support on her side, is sufficient to subject a man to the popular charge of being under british influence, or to the vulgar slander of being a "british tory." he will be fortunate to escape the accusation of touching british gold. but, sir, none of these things move me. the patrons of the miscreants who utter these slanders know better, but are, nevertheless, willing to benefit by the impression they may make on the minds of the people. from an early period of my life i was zealously engaged in every measure opposed to the attempts of great britain to encroach upon our rights, until the commencement of our revolutionary war; and during its whole continuance, i was uninterruptedly employed in important civil or military departments, contributing all my efforts to bring that war to a successful termination. i, sir, am not the advocate of wrong-doers, to whatever country they belong, whether emperors, or kings, or the administrators of a republic. justice is my object, and truth my guide; and wherever she points the way i shall not fear to go. great britain has done us many wrongs. when we were colonies, she attempted to deprive us of some of our dearest birth-rights--rights derived from our english ancestors, rights which we defended, and finally established, by the successful conclusion of the revolutionary war. but these wrongs, and all the wounds of war, were intended to be obliterated and healed by the treaty of peace, when all enmities should have ceased. great britain wronged us in the capture and condemnation of our vessels under her orders of , and she has made reparation for these wrongs, pursuant to a treaty, negotiated on practical principles by a statesman who, with liberal views and real candor, sought adjustment and reparation. monday, december . _enforcement of the embargo laws._ mr. giles, from the committee appointed the th of november last, on that part of the message of the president of the united states which relates to the embargo laws, and the measures necessary to enforce due observance thereof, made a further report, in part, of a bill to authorize and require the president of the united states to arm, man, and fit out for immediate service, all the public ships of war, vessels, and gunboats of the united states; and the bill was read, and passed to the second reading. the bill is as follows: "_be it enacted by the senate and house of representatives of the united states of america, in congress assembled_, that the president be, and he is hereby, authorized and required to cause to be fitted out, officered, manned, and employed, as soon as may be, all the frigates and other armed vessels of the united states, including gunboats; and to cause the frigates and armed vessels, so soon as they can be prepared for active service, respectively to be stationed at such ports and places on the seacoast as he may deem most expedient, or to cruise on any part of the coast of the united states, or territories thereof. "sec. . _and be it further enacted_, that, for the purpose of carrying the foregoing provision into immediate effect, the president of the united states be, and is hereby, authorized and required, in addition to the number of petty officers, able seamen, ordinary seamen, and boys, at present authorized by law, to appoint, and cause to be engaged and employed as soon as may be, ---- midshipmen, ---- corporals of marines, ---- able seamen, ---- ordinary seamen and boys, which shall be engaged to serve for a period not exceeding ---- years, but the president may discharge the same sooner, if in his judgment their services may be dispensed with; and to satisfy the necessary expenditures to be incurred therein, a sum not exceeding ---- dollars be, and the same is hereby, appropriated, and shall be paid out of any moneys in the treasury not otherwise appropriated." saturday, december . the credentials of michael leib, appointed a senator by the state of pennsylvania, were presented and read, and ordered to lie on file. _enforcement of the embargo._ the senate resumed the bill making further provision for enforcing the embargo. mr. goodrich rose, and addressed the senate as follows-- mr. president: this bill, making further provision for enforcing the embargo, requires all our attention. we are not on ordinary business. an embargo for an indefinite period, over a great country like ours, abounding in rich staples and domestic products, and carrying on in its own vessels an extensive and profitable commerce, is a phenomenon in the civilized world. we are about entering on the second year of this novel measure, and even in defiance of the lessons which experience teaches, that without producing any beneficial results, it is embroiling the choicest interests of the nation. on foreign powers it has made no impression, and its ruinous effect on our own country, we see in the waste of private property and public revenue; in the discontents of our citizens; in the perplexed state of the public councils, and the increasing difficulties that are fast gathering round the government. the friends of the embargo say, that it has been evaded and violated, but that when strictly enforced, it will compel foreign nations to respect our rights. under these impressions, the system is to be maintained. to enforce it, the powers of the government are to be put in array throughout our country, especially in places where discontents are manifested; and an extension is to be given to that system of arbitrary seizures of vessels, goods, merchandise, and domestic products, on suspicion of their being intended for exportation, which came in with the embargo laws, and has attended their execution. in all this, sir, i see nothing that is to conciliate the conflicting opinions and passions of our citizens, and restore concord amongst them. i see nothing that will invigorate the public councils, and resuscitate the dormant spirit and resources of the nation. to me it seems that the administration, without presenting to public view any definite object or course, are pressing forward our affairs into a chaos of inextricable difficulties. and i cannot but regard this bill as holding a prominent place among the measures leading on that unfortunate issue. this bill bears marks of distrust entertained by the government of the people, or a considerable portion of them, and of the state authorities; it places the coasting trade under further and vexatious restraints, as well as its general regulations under the control of the president. it intrenches on the municipal polity of the states, and the intercourse of the people in their ordinary business. and, what above all will wound the public sentiment, for the accustomed and mild means of executing the laws by civil process through the tribunals of justice, it substitutes military powers to be called out and exercised, not in aid, but in place, of the civil authorities. the coasting trade is placed under the regulation of the president by this bill: st. collectors may refuse permission to put a cargo on board of any ship, vessel, or boat, in any case where they have their own personal suspicions that it is intended for foreign exportation, and in every case which may be comprehended within the scope of any general instructions, issued by command of the president. but there is a proviso as to coasting vessels uniformly employed in the navigation of bays, sounds, rivers, and lakes, which shall have obtained a general permission. d. general permissions may be granted to the last-mentioned vessels, under such general instructions as the president of the united states may give, when it can be done without danger of the embargo being violated, to take on board such articles as may be designated in such general permission or permissions. by these general instructions, the president may prescribe the kind and quantity of exports from, and imports into the individual states, and from and to the particular districts within a state. he may suspend them in part or in whole. the power of issuing general instructions now proposed to be given to the president by law, he exercised in the recess of congress, and in my opinion, without law. the governor of massachusetts was authorized to give certificates, or licenses for the importation of flour into that state; and, under general instructions from the president, without personal suspicion of his own, the collector at charleston, in south carolina, detained a vessel; which called forth the independent exercise of the judicial power of the circuit court in that state, to control the president's instructions. i am sensible the administration and its friends have an arduous task in executing the embargo; difficulties beset them on every side; difficulties inherent in the measure itself, and not to be overcome by accumulating rigorous penalties, and an extension of the executive power. the power to regulate commerce is vested in congress, and by granting it to the president, do we not transfer to him one of the most important and delicate of the legislative powers? what state would have adopted the constitution, if it had been foreseen that this power would be granted to any man, however distinguished by office? the sections i have considered, principally affect merchants and seafaring men in their business, at stores, custom-houses, about wharves, ships, and vessels. but other sections take a wider range, and intrench on the ordinary concerns of the great body of the people, by the powers they give for unreasonable and arbitrary searches for, and seizures of their property. collectors of the customs throughout the united states, by the tenth section, are empowered to take into custody specie, or any articles of domestic growth or manufacture, under these circumstances, when deposited in unusual places, in unusual quantities, in places where there is reason to believe they are intended for exportation in vessels, sleighs, or other carriages, or in any manner apparently on their way towards the territories of foreign nations, or a place whence such articles are intended to be exported. and, when taken into custody, they are not permitted to be removed without bonds being given for their being relanded in some place whence, in the opinion of the collector, there is no danger of their being exported. without warrant founded on proof, from suspicion only, may this unbounded license be exercised. our houses, heretofore our castles, and the secure abodes of our families, may be thrown open to the visits of collectors to search for and seize our money and goods, whenever instigated by suspicion, prejudice, resentment, or party spirit. no place is to be protected; the people may every where be exposed, at home, on the way, and abroad. specie and goods thus seized without warrant, and on suspicion only, are not to be removed unless and until bond with sureties shall be given for landing or delivering the same in some place of the united states, whence, in the opinion of the collector, there shall not be any danger of such articles being exported. these provisions strike at the vital principles of a free government; and are they not contrary to the fourth and sixth articles of amendments to the constitution? are not these searches and seizures, without warrant, on the mere suspicion of a collector, unreasonable searches and seizures? and is not a man thereby to be deprived of property without due process of law? the military may be employed by such person as the president may have empowered. he may designate, at certain places in the states, persons to call out such part of the land or naval forces of the united states, or of the militia, as may be judged necessary. those will be selected who are most convenient and in all respects qualified to act in the scenes to which they may be called. in these appointments the senate is to have no concurrence. they are to be presidential agents for issuing requisitions to the standing army, for militia, and not amenable to any tribunal for their conduct. heretofore a delicate and respectful attention has been paid to the state authorities on this subject. the requisitions of the general government for the militia have been made to the governors of the states; and what reason is there for taking a different course to enforce the embargo? under our present system have not insurrections been suppressed, rebellions quelled, and combinations and resistance against lawful authority overcome, by the force of the general government in co-operation with the state governments? is not the authority of the marshals competent to the execution of the laws? i see no cause for these arrays of the military throughout the country, and the unrestrained license that is to be given to its operations. it is a fundamental principle of a free government, "that the military be kept in subordination to the civil power," and never be put in motion until those be found incompetent to preserve the public peace and authority. but, by the provisions of this bill, these presidential agents may call out the standing army or militia, or part of them, to follow in the collector's train, to seize specie and goods in houses, stores, and elsewhere, and generally for executing the embargo laws. and even the public peace, so far as respects the suppressing armed and riotous assemblages of persons resisting the custom-house officers in the exercise of their duties, it would seem can no longer be confided to the states, and it is thought necessary to surround custom-house officers with bands of the standing army or militia. the bill before us is bottomed on a report of the secretary of the treasury. how often were his strenuous remonstrances, and those of the chairman of the committee who reported the bill, (mr. giles,) formerly heard against the extension of the executive patronage and influence; the interference of the general government in the local policy of the states, and, the ordinary concerns of the people; and, above all, against standing armies? then no such executive prerogatives were claimed as this bill contains; no such attempts made as here are made for intrenchments on the internal policy of the states, and the ordinary concerns of the people; and then our army, small in comparison with the present establishment, was kept aloof from the affairs of the state, and the persons and property of the citizens. our country was happy, prosperous, and respected. the present crisis is portentous. internal disquiets will not be healed, nor public sentiment controlled, by precipitate and rash measures. it is time for the public councils to pause. this bill, sir, ought not to pass. it strikes at the vital principles of our republican system. it proposes to place the country in a time of peace under military law, the first appearance of which ought here to be resisted with all our talents and efforts. it proposes to introduce a military despotism, to which freemen can never submit, and which can never govern except by terror and carnage. tuesday, december . _enforcement of the embargo._ mr. giles said, i am sensible that i owe an apology to the senate, as chairman of the committee, for not having made an exposition of the objects and principles of the bill, reported for consideration, at an earlier stage of the discussion. this omission has not in the smallest degree been influenced by any apprehension, that these principles are indefensible; but, in some degree, from a desire to screen myself, as much as possible, from intermixing in discussions; a task which is never agreeable, but is at present peculiarly distressing and afflicting to my feelings. i also thought that the session had already been sufficiently fruitful of discussions intimately connected with the bill before us; and that the public interests, at this time, required action. i know, too, sir, that i owe an apology to the senate, for the great number of amendments which, under their indulgence, has been made to this bill after it was first presented to their consideration. but, sir, you will find some apology in the intrinsic difficulty and delicacy of the subject itself, and also in the disposition manifested by the committee, to give to the objections made by the opponents of the bill, that respectful attention to which many of them were certainly entitled, and to accommodate its provisions, as far as possible, to the views of those gentlemen. after every effort, however, to effect this object, it still appears that the bill presents temptations for addressing the popular sensibility too strong to be resisted by gentlemen in the opposition. they have, accordingly, with great zeal and ability, described the provisions of the bill as dangerous and alarming to the rights and liberties of the people. this, sir, is the common course of opposition, and applies to every strong measure requiring the exercise of much executive discretion. i think, however, i shall be able to show that there is no new principle contained in the provisions of that bill; but that every provision it contains is amply justified by precedents in pre-existing laws, which have not been found to be so destructive to the rights of the people, as gentlemen strenuously insist similar provisions in this bill will be, if they receive the sanction of law. in performing this task, i shall bring into view only such parts of the bill as have been objected to by gentlemen, presuming that, as their objections have evidently been the result of great industry and deliberation, all other parts of the bill remain unobjectionable. i shall also, perhaps, avoid some of the observations respecting minute details; apply my remarks generally to principles; and thus bring my observations and replies into as short a compass as possible. the gentleman from connecticut (mr. goodrich) commenced his remarks by declaring the embargo to be a permanent measure, deprecating its effects, as ruinous at home and ineffectual abroad. these observations have been repeatedly made by others, and already replied to by several gentlemen, as well as myself; and i am strengthened in the correctness of those replies by all the further reflections i have been enabled to bestow upon them. this part of the subject will, therefore, be passed over without further notice, except to remark, that perhaps one of the causes of the inefficacy of the measure abroad, has been the unprincipled violations of its provisions at home; and the great and leading object of the present bill is to prevent such violations. upon this part of the subject i am happy to find that one of its most strenuous and judicious opposers (mr. hillhouse) has candidly informed the senate, that the provisions of the bill are admirably calculated to effect that object--and if in their practical operation they should realize the character anticipated by that gentleman, i shall feel no regret for that portion of labor i have bestowed upon them. indeed, i shall congratulate the committee as well as myself in having been so fortunate as to find a competent remedy for so great an evil. the gentleman from connecticut (mr. goodrich) informs us, that the public councils are pressing on to measures pregnant with the most alarming results. i hope the gentleman is mistaken in his apprehensions, and i should have been much pleased if the gentleman had been good enough to point them to a better course; but, sir, he has not done so, nor has any gentleman on the same side of the question. indeed, sir, it would give me great pleasure to do something that would be agreeable to our eastern friends; but, unfortunately, amidst all the intrinsic difficulties which press upon us, that seems to be not among the least of them. the gentlemen themselves will not explicitly tell us what would produce the effect--and i am inclined to think that nothing short of putting the government in their hands would do it. even this would not be exempt from difficulties. the gentlemen from that part of the united states are nearly equally divided among themselves respecting the proper course of measures to be pursued, and there is an immense majority in every other part of the united states, in favor of the measures proposed; we are therefore surrounded with real and intrinsic difficulties from every quarter, and those of a domestic nature are infinitely the most formidable, and most to be deprecated. indeed, sir, under present circumstances, the administration of the government cannot be a pleasant task; and, in my judgment, it requires a great effort of patriotism to undertake it, not on account of external pressures, but on account of internal discontents, stimulated, too, by so many artful intrigues. but for these unfortunate circumstances, every gentleman would feel an honorable pride in contributing his efforts to devise measures for repelling foreign aggressions, and he would court the responsibility attached to his station. i would not, mr. president, give up a scintilla of that portion of the responsibility which the crisis imposes on me. indeed, sir, to have the honor of bearing my full share of it, is the only inducement i have at this moment for occupying a place on this floor. without that consideration i should now be in retirement. but when i turn my eyes upon internal divisions, discontents and violations of law, and am compelled to think of measures for their suppression, it produces the most painful sensations and distressing reflections. the great principle of objection, the gentlemen tell us, consists in the transfer of legislative powers to the executive department. this is an old an abstract question, often heretofore brought into view, and leads to endless discussion. i think i shall be able to show that the bill introduces no new principle in this respect, but only applies an established principle to new practical objects. the general principle of the separation of departments is generally admitted in the abstract; but the difficulties in this discussion arise from applying the principle to practical objects. the great difficulty exists in the attempt to fix on the precise boundary line between legislative and executive powers in their practical operation. this is not possi-[ ] you might attempt the search for the philosopher's stone, or the discovery of the perpetual motion, with as much prospect of success. the reason of this difficulty is, that the practical objects and events to which this abstract principle is attempted to be applied, are perpetually varying, according to the practical progression of human affairs, and therefore cannot admit of any uniform standard of application. this reflection might have saved the gentleman from massachusetts (mr. lloyd) the trouble of reading to us the constitution or bill of rights of massachusetts, in which the principle of separation of departments is very clearly and properly laid down, and which will be very readily assented to in the abstract, but which forms no part of the question in dispute. it cannot, however, escape observation, that this principle is not laid down, even in the abstract, in the constitution of the united states; and, although it is the leading principle of the constitution, and probably was the principal guide in its formation, it is nevertheless in several respects departed from. this body partakes essentially both of the legislative and executive powers of the government. the executive department also partakes of the legislative powers, as far at least as an approbation of, and a qualified negative of the laws extend, &c. i make these observations, however, not in derogation of the general principle of the separation of powers among the several departments, so far as is practicable, but merely to show that there must necessarily be some limitations in its practical operation. perhaps the best general rule for guiding our discretion upon this subject will be found to consist in this: that legislation ought to extend as far as definition is practicable--when definition stops, execution must necessarily begin. but some of the particular provisions of this bill will furnish more precise illustrations of my opinions upon this question; it will, therefore, be waived until i shall come to their consideration. i will now proceed to examine the more particular objections urged against the detail of this bill. its provisions respecting the coasting trade are said to be objectionable in the following respects: first objection: the penalty of the bonds required, is said to be excessive. to enable us to decide correctly upon this point, the object proposed to be effected, and the penalty required, should be considered in reference to each other. the object is to prevent, by means of coasting vessels, domestic articles from being carried abroad. flour, for instance, to the west indies. the price of that article here is less than five dollars; in the west indies it is said to be thirty and upward. the penalty of the bonds required is six times the amount of the value of the vessel and cargo. is any gentleman prepared to say a smaller penalty will effect the object? i presume not. indeed, the committee were disposed to put it at the lowest possible point, consistently with an effectuation of the object; and probably it is rather too low for that purpose. as to the penalty, according to the tonnage of vessels, it is believed no alteration in the existing laws is made in that respect. these penalties will appear the more reasonable, when it is recollected, that through the indulgence given of the coasting trade, most of the violations of the embargo laws have been contrived and effected. second objection: the collectors may be influenced by party spirit in the exercise of their discretion. it is hoped that this will not be the case, and if it were, it would certainly be much to be regretted. it may, however, probably happen, and is one of the inconveniences of the system. third objection: the high penalties of the bonds will drive many persons of small means from their accustomed occupations. they will not be able to procure the competent security for their prosecution. it is not to be presumed that this will be the effect to any great extent. if the owner is known to be honest, and has in view legal and honest objects, i have very little apprehension of his not being able to get the security required. but here the question recurs, are these apprehended inconveniences of such a nature as to render it necessary to abandon a great national object, for the accommodation of a few individuals who are affected by them? is the last effort to preserve the peace of the nation, to be abandoned from these considerations? i should conclude, certainly not. the next objections are made to the seventh section of the bill, which provides that stress of weather, and other unavoidable accidents at sea, shall not be given in evidence in a trial at law to save the penalty of bonds given as security against the violation of the embargo laws. it is known that, through pretexts derived from this permission, at present, most of the violations of these laws have been committed with impunity--it is, therefore, important to the future execution of the laws, to take away these pretexts. but it is objected that this regulation manifests a distrust of oaths. it does, of what is called custom-house oaths; their violation is already almost proverbial; it does not, however, produce nor encourage this profligacy; it takes away the temptation to it. it is further said, it impairs the trial by jury--very far from it; the trial by jury still exists; this provision only regulates the evidence to be produced before the jury. gentlemen state particular hardships which may take place under this regulation. it is easy to state possible hardships under any general regulation; but they have never been deemed sufficient objections to general regulations producing in other respects beneficial results. this bill, however, contains a provision for relief in all cases of hardships under the embargo laws. the secretary of the treasury is authorized to grant relief in all such cases. this power, vested in the secretary, is also objected to. it is said to manifest a distrust of courts, and to transfer their powers to the secretary of the treasury. whatever may be my distrust of some of the courts of the united states, i can say that consideration furnished no inducement to this provision. it is a power not suited to the organization of courts, and it has for a long time been exercised by the secretary of the treasury without being complained of. congress proceeded with great caution on this subject. on the third day of march, , they first introduced this principle into their laws in relation to the collection of the revenue; and, after an experiment of nearly three years, on the eleventh day of february, , they made the law perpetual. this will appear from the th section of this bill, which merely borrows this provision from pre-existing laws. it introduces no new principle whatever. this doctrine is carried still further, by an act passed the d of march, , in the eighth volume of the laws, page : "an act to prevent settlements being made on lands ceded to the united states, until authorized by law. "and it shall moreover be lawful for the president of the united states to direct the marshal, or officer acting as marshal, in the manner hereinafter directed, and also to take such other measures, and to employ such military force as he may judge necessary and proper, to remove from lands ceded, or secured to the united states by treaty, or cession as aforesaid, any person or persons who shall hereafter take possession of the same, or make or attempt to make a settlement thereon, until authorized by law." here the president is authorized to use the military force to remove settlers from the public lands without the intervention of courts; and the reason is, that the peculiarity of the case is not suited to the jurisdiction of courts, nor would their powers be competent to the object, nor, indeed, are courts allowed to interfere with any claims of individuals against the united states, but congress undertakes to decide upon all such cases finally and peremptorily, without the intervention of courts. this part of the bill is, therefore, supported both by principle and precedent. while speaking of the distrust of courts, i hope i may be indulged in remarking, that individually my respect for judicial proceedings is materially impaired. i find, sir, that latterly, in some instances, the callous insensibility to extrinsic objects, which, in times past, was thought the most honorable trait in the character of an upright judge, is now, by some courts, entirely disrespected. it seems, by some judges, to be no longer thought an ornament to the judicial character, but is now substituted by the most capricious sensibilities. wednesday, december . _enforcement of the embargo._ mr. pope spoke in favor of the bill. and on the question, shall this bill pass? it was determined in the affirmative--yeas , nays , as follows: yeas.--messrs. anderson, condit, crawford, franklin, gaillard, giles, gregg, kitchel, milledge, mitchill, moore, pope, robinson, smith of maryland, smith of new york, smith of tennessee, sumter, thruston, tiffin, and turner. nays.--messrs. gilman, goodrich, hillhouse, lloyd, mathewson, pickering, and white. wednesday, december . the vice president being absent by reason of the ill state of his health, the senate proceeded to the election of a president _pro tempore_, as the constitution provides; and stephen r. bradley was appointed. friday, january , . return jonathan meigs, jun., appointed a senator by the general assembly of the state of ohio, to fill the vacancy occasioned by the resignation of john smith, and, also, for six years ensuing the third day of march next, attended, and produced his credentials, which were read; and the oath prescribed by law was administered to him. tuesday, january . james a. bayard, from the state of delaware, attended. monday, january the credentials of michael leib, appointed a senator by the legislature of the state of pennsylvania, to fill the vacancy occasioned by the resignation of samuel maclay, were read, and ordered to lie on file. thursday, january . michael leib, appointed a senator by the legislature of the state of pennsylvania, to fill the vacancy occasioned by the resignation of the honorable samuel maclay, attended, and the oath prescribed by law was administered to him. tuesday, january . _foreign intercourse--the two millions secret appropriation--florida the object._ the following message was received from the president of the united states: _to the senate of the united states_: according to the resolution of the senate, of the th instant, i now transmit them the information therein requested, respecting the execution of the act of congress of february , , appropriating two millions of dollars for defraying any extraordinary expenses attending the intercourse between the united states and foreign nations. january , . th. jefferson. the message and documents were read, and one thousand copies thereof ordered to be printed for the use of the two houses of congress. in compliance with the resolution of the senate, so far as the same is not complied with by the report of the secretary of the treasury of the th instant, the secretary of state respectfully reports, that neither the whole nor any portion of the two millions of dollars appropriated by the act of congress of the st of february, , "for defraying any extraordinary expenses attending the intercourse between the united states and foreign nations," was ever authorized or intended to be applied to the use of either france, holland, or any country other than spain; nor otherwise to be applied to spain than by treaty with the government thereof, and exclusively in consideration of a cession and delivery to the united states of the territory held by spain, eastward of the river mississippi. all which is respectfully submitted. james madison. department of state, jan. . monday, january . the vice president having retired, the senate proceeded to the election of a president _pro tempore_, as the constitution provides; and the hon. john milledge was appointed. thursday, february . the credentials of samuel white, appointed a senator by the legislature of the state of delaware, for six years, commencing on the th of march next, were read, and ordered to lie on file. tuesday, february . _examination and count of electoral votes for president and vice president._ mr. smith, of maryland, from the joint committee appointed to ascertain and report a mode of examining the votes for president and vice president, and of notifying the persons elected of their election, and for regulating the time, place, and manner, of administering the oath of office to the president, reported in part the following resolution, which was read and agreed to: _resolved_, that the two houses shall assemble in the chamber of the house of representatives, on wednesday next, at o'clock; that one person be appointed a teller on the part of the senate, to make a list of the votes as they shall be declared; that the result shall be delivered to the president of the senate, who shall announce the state of the vote, and the persons elected, to the two houses assembled as aforesaid; which shall be deemed a declaration of the persons elected president and vice president, and, together with a list of the votes, to be entered on the journals of the two houses. _ordered_, that mr. smith, of maryland, be appointed teller on the part of the senate, agreeably to the foregoing resolution. a message from the house of representatives brought to the senate "the several memorials from sundry citizens of the state of massachusetts, remonstrating against the mode in which the appointment of electors for president and vice president has been proceeded to on the part of the senate and house of representatives of said state, as irregular and unconstitutional, and praying for the interference of the senate and house of representatives of the united states, for the purpose of preventing the establishment of so dangerous a precedent." the message last mentioned, referring to the memorials of sundry citizens of the state of massachusetts, was read. _ordered_, that the message and memorials lie on the table. a message from the house of representatives informed the senate that the house agree to the report of the joint committee "appointed to ascertain and report a mode of examining the votes for president and vice president, and of notifying the persons elected of their election, and to regulate the time, place, and manner of administering the oath of office to the president," and have appointed messrs. nicholas and van dyke tellers on their part. wednesday, february . the two houses of congress, agreeably to the joint resolution, assembled in the representatives' chamber, and the certificates of the electors for the several states were, by the president of the senate, opened and delivered to the tellers appointed for the purpose, who, having examined and ascertained the number of votes, presented a list thereof to the president of the senate, which was read, as follows: key: james madison. = jmn george clinton. = gc c. c. pinckney. = ccp james monroe. = jme john langdon. = jl rufus king. = rk +---------------+--------------+-------------------------+ | states. |for president.| for vice-president. | | +----+----+----+-----+----+----+----+----+ | | jmn| gc| ccp| gc| jmn| jme| jl| rk| +---------------+----+----+----+-----+----+----+----+----+ |new hampshire | --| --| | --| --| --| --| | |massachusetts | --| --| | --| --| --| --| | |rhode island | --| --| | --| --| --| --| | |connecticut | --| --| | --| --| --| --| | |vermont | | --| --| --| --| --| | | |new york | | | --| | | | | | |new jersey | | --| --| | | | | | |pennsylvania | | --| --| | | | | | |delaware | --| --| | --| --| --| --| | |maryland | | --| | | --| --| --| | |virginia | | --| --| | | | | | |north carolina | | --| | | --| --| --| | |south carolina | | --| --| | | | | | |georgia | | --| --| | | | | | |kentucky | | --| --| | | | | | |tennessee | | --| --| | | | | | |ohio | | --| --| --| --| --| | | +---------------+----+----+----+-----+----+----+----+----+ |totals | | | | | | | | | +---------------+----+----+----+-----+----+----+----+----+ the whole number of votes being , of which make a majority. whereupon the president of the senate declared james madison elected president of the united states for four years, commencing with the fourth day of march next; and george clinton vice president of the united states for four years, commencing with the fourth day of march next. the votes of the electors were then delivered to the secretary of the senate; the two houses of congress separated; and the senate returned to their own chamber. on motion, by mr. smith of maryland, _resolved_, that the president of the united states be requested to cause to be delivered to james madison, esq., of virginia, now secretary of state of the united states, a notification of his election to the office of president of the united states; and to be transmitted to george clinton, esq., of new york, vice president elect of the united states, notification of his election to that office; and that the president of the senate do make out and sign a certificate in the words following, viz: _be it known_, that the senate and house of representatives of the united states of america, being convened at the city of washington, on the second wednesday in february, in the year of our lord one thousand eight hundred and nine, the underwritten, president of the senate _pro tempore_, did, in presence of the said senate and house of representatives, open all the certificates and count all the votes of the electors for a president and vice president of the united states. whereupon, it appeared that james madison, of virginia, had a majority of the votes of the electors as president, and george clinton, of new york, had a majority of the votes of the electors as vice president. by all which it appears that james madison, of virginia, has been duly elected president, and george clinton, of new york, has been duly elected vice president of the united states, agreeably to the constitution. in witness whereof, i have hereunto set my hand, and caused the seal of the senate to be affixed, this ---- day of february, . and that the president of the senate do cause the certificate aforesaid to be laid before the president of the united states with this resolution. tuesday, february . the credentials of joseph anderson, appointed a senator for the state of tennessee, by the executive of that state, from and after the expiration of the time limited in his present appointment, until the end of the next session of the legislature thereof, were presented and read, and ordered to lie on file. _franking privilege to mr. jefferson._ the bill freeing from postage all letters and packets to thomas jefferson was read the second time, and considered as in committee of the whole; and no amendment having been proposed, on the question, shall this bill be engrossed and read a third time? it was determined in the affirmative. _non-intercourse._ mr. tiffin, from the committee, reported the bill to interdict the commercial intercourse between the united states and great britain and france, and their dependencies, and for other purposes, correctly engrossed; and the bill was read the third time, and the blanks filled--section three, with the words _twentieth_ and _may_ in two instances. on motion by mr. bradley, the words, "or being pursued by the enemy," were stricken out of the first and third sections, by unanimous consent. mr. lloyd addressed the senate as follows: mr. president: when the resolution on which this bill is founded was brought forward, i had expected it would have been advocated--as a means of preserving peace--as a menace to the belligerents, that a more rigorous course of conduct was about to be adopted towards them, on the part of the united states, provided they continued to persist in their injurious decrees, and orders in council--as giving us time to prepare for war--or as a covert, but actual war, against france and great britain. i feel indebted to the honorable gentleman from virginia, (mr. giles,) for not only having very much narrowed the consideration of this subject, but for the open, candid, and manly ground he has taken, both in support of the resolution and the bill. i understood him to avow, that the effect must be war, and that a war with great britain; that, notwithstanding the non-intercourse attached to this bill, the merchants would send their vessels to sea; those vessels would be captured by british cruisers; these captures would be resisted; such resistance would produce war, and that was what he both wished and expected. i agree perfectly with the gentleman, that this is the natural progress, and must be the ultimate effect of the measure; and i am also glad, that neither the honorable senate nor the people of the united states can entertain any doubts upon the subject. i understood the gentleman also to say, that this was a result he had long expected. now, sir, as there have been no recent decrees, or orders in council issued, if war has been long looked for, from those now in operation, i know not what excuse those who have the management of our concerns can offer to the people of the united states, for leaving the country in its present exposed, naked, and defenceless situation. what are our preparations for war? after being together four-fifths of the session, we have extorted a reluctant consent to fit out four frigates. we have also on the stocks, in the navy yard and elsewhere scattered along the coast, from the mississippi to the schoodick, one hundred and seventy gunboats, which, during the summer season, and under the influence of gentle western breezes, may, when in commission, make out to navigate some of our bays and rivers, not, however, for any effectual purposes of defence, for i most conscientiously believe, that three stout frigates would destroy the whole of them; and of the enormous expense at which this burlesque naval establishment is kept up, we have had a specimen the present session, by a bill exhibited to the senate, of eight hundred dollars for medical attendance, on a single gunboat for a single month, at new orleans. if other expenditures are to be made in this ratio, it requires but few powers of calculation to foretell that, if the gunboats can destroy nothing else, they would soon destroy the public treasury. we have also heard of a project for raising fifty thousand volunteers, which has, i believe, been very properly stifled in its birth, and we have appropriated, during the present session, one hundred and fifty thousand dollars towards the erection, repairing, and completion of our fortifications. a sum about equal to the expenditure of the british government for six weeks, or two months, on a single fortress in the province of canada, and which sum, with us, is to put into a state of defence, against the naval power of great britain, an exposed and accessible maritime frontier of two thousand miles in extent! in contemplating war, it is also proper to advert to the state of the treasury. under such an event, and with any serious preparation for war or actual prosecution of it, the present funds would soon be exhausted. how soon cannot be stated, because the amount of them cannot be accurately ascertained. a part, and a considerable part, of the money now on hand, does not belong to the public. it is the property of the merchants; it is deposited in the treasury as in a bank, to be checked for, whenever that commerce, which mr. jefferson, in his notes on virginia, most emphatically says, our country _will have_, shall be again reopened. and thus situated, what are the projects offered for replenishing the public coffers in future? it is the duty of the secretary of the treasury to develop the resources of the nation, and to point out new sources of supply, whenever the usual channels are impeded. he has designated three modes. the first, if executed, embraces, in my view, and i am sorry to say it, a marked violation of the public faith. it is the suggestion of stopping drawbacks on merchandise, which, in many instances, the merchants, from a reliance on the stability of your laws, and the integrity of the government, have imported expressly for exportation, and not for domestic use or consumption in this country, and which exportation you have prevented them, alike contrary to their inclinations and their interests, from making for a longer period than ever was known or endured in any other nation. the second project is one which, in my opinion, would do little honor to the genius of any man. it is a sweeping project for doubling, at the moment, the duties on every description of imported merchandise, on which a duty is now payable. without notice to the merchant, without inquiry, without discrimination, without distinction between the necessaries of the poor man and the luxuries of the rich one; between the indispensable raw materials of the manufacturer and the useless decorations of fashion. by which, bohea tea and madeira wine, brown sugar and cosmetics, coaches and carpenters tools, are all, by a single stroke of the pen, raised in the same ratio; and a duty of per cent. on the present rates, without favor or affection, equally recommended to be imposed on the whole of them. the third project is certainly not a novel one; it is simply that of shifting the burden off our own shoulders on to those of our successors: it is that of borrowing money on loans. i have been, sir, among those who have respected the intelligence and acuteness of the secretary of the treasury. i have thought the office very ably filled; nor has my estimation of his talents been diminished from the few personal conferences i have had with him since i have been in this city; but if his fame rested on no firmer a basis than the reports made to congress the present session, in relation to enforcing the embargo laws, and to our fiscal concerns, then an infant's breath might easily burst the bubble. at any rate, it may very truly be said, that if such are our preparations for commencing, and our resources for continuing a war, they are those which will serve neither to inspirit ourselves, nor to frighten our enemies. if we are to have war, with whom is it to be prosecuted--not in terms i mean, but in fact? certainly not with france. her few possessions in the west indies have probably, by this time, ceased to belong to her, and between her european territories and the united states a gulf intervenes, a power is interposed, which neither the emperor of the west nor the king of the two americas can either fathom or resist. it then appears, if we are to have war, it is to be a covert war with the two belligerents, but in reality an actual war with great britain alone, and not a war with both france and great britain, as the face of this bill seems to import. if this be the determination of our government, and the war is to commence at a future day, and not instantly, what is the course which policy would dictate to this country to pursue? certainly not a prohibition of the importation of her manufactures. a long period of years must elapse before we can furnish for ourselves many articles we receive from her even of the first necessity, or those which, from habit, have become such to us. we should, therefore, sedulously endeavor, not only to guard against exhausting our present stock, but to adopt every means in our power to replenish it. it would be expedient to throw wide open the entrance of our ports for importations, to overstock as much as possible the united states with british manufactures. this would procure for us a double advantage; it would promote our own accommodation, by giving us the means of commencing and prosecuting war with fewer privations, and it would powerfully tend to unite the interests of a certain class of the inhabitants of that country with our own--for, as the mass of importations from great britain are made on long credits, should a war ensue before such credits are cancelled, it is obvious that, until the conclusion of the war, those debts could not be collected, and this circumstance alone, to a certain extent, might operate as a preventive check to war, or, at any rate, would secure in the bosom of the british nation a party whose interests and feelings would be intimately connected with a speedy return of peace. by adopting a non-intercourse antecedent to a state of war, our own stock of supplies becomes exhausted, the british merchants have time and notice given them to collect, or alienate, by assignment, their debts in this country. a warning is given them to buckle on their armor; their good disposition towards us is not only changed, but embittered, and the very persons who, in the one case, might possibly prevent a war, or be instrumental in effecting the restoration of peace, would, in the other, probably be among the most willing to rush into the contest, from the impulse of temper, and from the conviction that their own circumstances would not be deteriorated by its consequences. a non-intercourse would also be attended with great hazard and disadvantage. it would be as well understood by others as by ourselves; it could alone be considered as the precursor of war; and the blow would be struck, not when we were prepared, but when our opponents were ready for the contest; and should this bill go into operation, it is very possible that during the ensuing summer, some of our cities may exhibit heaps of ruins and of ashes, before expresses could convene at the seat of government even the heads of our departments. another evil would arise, and that a permanent one; whether a non-intercourse eventuated in war or peace, it would materially and adversely affect both the habits of the people and the revenue of the state. many of the articles which are now imported from great britain are indispensable for our comfort, and some of them for our existence. the people cannot do without them: the consequence must be, that, instead of being regularly imported, the articles will be smuggled into this country, and thereby the price not only becomes greatly enhanced to the consumer, but the duties are wholly lost to the government. hitherto, the revenue of the united states, arising from impost, has been collected with a degree of integrity and punctuality highly honorable and unexampled in the history of commercial nations. this successful collection of duties has not however been effected by the employment of swarms of revenue officers, spies, and informers, as in other countries; it has been infinitely more effectually secured, by an honorable pride of character, and that sentiment of affection which was naturally excited in the hearts of freemen towards the government of their choice, and a government under which, in the main, they have experienced much prosperity. but barriers of this description, like other high-toned sentiments of the mind, being once broken down, can with difficulty be restored, and the chance of materially impairing this, in reality, "cheap defence of nations," should, in my opinion, of itself, afford a sufficient reason for the rejection of all measures of doubtful policy. in a country nearly surrounded by, and everywhere intersected with navigable waters, encompassed by a frontier beyond the ability of ten bonapartean armies to guard, and inhabited by a race of men unrivalled for hardihood and enterprise, and at present in a state of poverty, the temptation of great prices will be irresistible--for there is no truism in morals or philosophy better established than the commercial axiom, that demand will ultimately furnish a supply. there are, undoubtedly, periods in the history of a nation, in which a contest would be both honorable and indispensable, but it should ever be the result of great deliberation, and in an extended republic, perhaps, of necessity. that government is most wise and most patriotic, which so conducts the affairs of the nation over which it presides, as to produce the greatest ultimate good; and when a nation is attacked at the same time by two assailants, it is no reflection on its honor or its bravery, to select its opponent; and on principles of reciprocity, independently of those of interest, the first aggressor would undoubtedly be entitled to the first notice. who then has been the first aggressor? i answer, france. the berlin decree is in a great measure the cause of our present difficulties. in justification of france in doing this, i know gentlemen resort to the convention between russia and great britain in , to prohibit a supply of grain to france; but this is by no means sufficient justification to france, even without referring to a decree to the same effect issued in may of the same year by france, while she was ignorant of the secret stipulation between russia and great britain. for a long period, and among most of the maritime nations of europe, the right of inhibiting a supply of provisions to an enemy, was tacitly acquiesced in, or expressly admitted. this practice existed even so long ago as the mithridatic war, and has probably been followed up, without an interval at any one time of fifty years, from the commencement of the christian era to the present day. this attempt, therefore, of great britain to injure france, formed no excuse for france to attempt to injure great britain by violating the commerce of the united states. on the st of december, , the british government formally notified the american government, that great britain would consider an acquiescence in the berlin decree on the part of neutral nations, as giving to her (great britain) the right to retaliate in the same way against france. had the american government, at this period, manfully and explicitly made known its determination to support our rights at all hazards, i have no belief that our present difficulties would ever have existed. in may succeeding, advices were received of french privateers, under this decree, depredating upon american vessels in the west indies; and during the same month the ship horizon, in distress, was thrown by the act of god on the french coast, and was seized under the same authority. in november, , the british, in conformity with their notice, issued their retaliating order. a prior order in council of january, , had been issued, but this only affected vessels trading between different ports of france, or between ports of france and her allies; a trade always obnoxious to suspicion, and one which during war must ever be expected in a great degree to be restricted, and which is also interdicted by a standing law of the french government, passed in , and confirmed by the present emperor. then followed in succession, on the part of france, the milan and bayonne decrees. the last of which dooms an american vessel to condemnation from the exercise of a right universally acknowledged to belong to belligerents, and one which the neutral has no possibility of preventing, that of being spoken with by an enemy cruiser, which from her superior sailing there was no possibility of avoiding. in point of principle, this is the most outrageous violation of neutral rights ever known, and this, too, took place under the existence of a treaty made within a few years by the same person who issued these very decrees. while with great britain we have no treaty, and whose orders are expressly bottomed upon and limited in duration by the french decrees, and issued after having given twelve months' notice of her intention to oppose them in this way, and the orders in council are even as yet not co-extensive in principle with the french decrees. i have, in taking this brief view, confined myself exclusively to the decrees and orders of the two governments, without adverting to other causes of complaint on either side. i consider myself as warranted in doing this, from the american government having explicitly taken this ground, and made known that, on the removal of the decrees and orders, it would, on our part, remove the embargo, and restore the accustomed intercourse between the two countries. from this consideration of the subject, it irresistibly follows, that france was the first aggressor on us, in issuing her decrees--that in point of principle, they are much more outrageous violations of right than the british orders in council--that the latter originate from, and co-exist only with the former, and that france should of consequence be the first object of our vengeance. the effects of a war with one or the other nation, would be as distinctly perceptible. with france it would make no difference to us. for as long as she continues her decrees, commerce with her could not be prosecuted--no man would be mad enough while her coast is lined, and the ocean covered with british cruisers, to send his vessel to france, where she would meet with certain condemnation for being even seen and spoken with by a british frigate. with france, therefore, the actual difference arising from passing this bill, and declaring a non-intercourse, would be next to nothing. with great britain the effects would be reversed. no one now doubts her ability or disposition to carry her orders into effect, nor her preparation to extend the theatre of war. if we commenced war upon france, as she would be the common enemy of both nations, there is no doubt in my mind that our differences with great britain would be favorably settled, that the commerce of the world, excepting as it respects france and her allies, would be again open to us, and that a trade, which has hitherto employed nearly seventy millions of our capital, might be again accessible to the industry and enterprise of our citizens. reverse this picture, admitting that you have a war with great britain, what will be its consequences? if your citizens are united, you can capture canada, nova scotia, and new brunswick; when you have effected this, what remains next to be done? you have reached the _ne plus ultra_ of your ability. thenceforward your ports are hermetically sealed. privateering, from the convoy system adopted by great britain, could not be successfully prosecuted; no food for enterprise remains, and thus you would remain, five, ten, or fifteen years, as the case might be, until the wisdom and good sense of the nation predominated over its passion, when an accommodation would be made with great britain, following her example with regard to her west india conquests, restoring the captured provinces, enriched by american population and industry, and giving us perhaps a treaty still less favorable than the much execrated instrument of , which, bad as it was said to be, has proved a _cornucopia_ of wealth to our country, if it produced nothing less than a thirteen years' peace, and which, to my view, is vastly preferable to its abortive successor of the year eighteen hundred and six. the question was now taken on the passage of the bill, and determined in the affirmative--yeas , nays , as follows: yeas.--messrs. anderson, condit, franklin, gaillard, giles, gregg, howland, kitchel, leib, mathewson, meigs, milledge, mitchill, moore, pope, robinson, smith of maryland, smith of new york, smith of tennessee, thruston, and tiffin. nays.--messrs. bayard, crawford, gilman, goodrich, hillhouse, lloyd, parker, pickering, reed, sumter, turner, and white. so it was resolved that this bill pass, and that the title thereof be, "an act to interdict the commercial intercourse between the united states and great britain and france, and their dependencies, and for other purposes." friday, february . _additional duties._ the bill, entitled "an act for imposing additional duties upon all goods, wares, and merchandise, imported from any foreign port or place," was read the third time as amended. mr. lloyd moved to postpone the further consideration of this bill until the first monday in june next; and addressed the chair as follows: mr. president: after the observations which i have before made, sir, on this bill, and the detailed consideration which was given to it yesterday, i should not again rise, were the subject not a commercial, and an exceedingly important one; nor is it now my intention to make more than a few remarks, and these the senate will probably think entitled to more than usual respect, when i inform them they will principally be, neither my own, nor wholly accordant with my opinions. this bill can only be advocated upon the ground that a war is about to ensue, and that, to prepare the public treasury to sustain the prosecution of such war, this proposed duty is necessary. my purpose is to cite some authorities to show that neither the one nor the other is either expected or necessary; and the authorities i shall adduce to prove this, are those to which the senate is accustomed to pay the highest respect. [here mr. lloyd quoted from mr. gallatin's treasury reports, to show that he deemed loans preferable to taxes if war ensued, and that there was revenue enough until the next winter.] now, sir, it is clear, from the showing even of this honorable gentleman whose calculations are received with so much respect here, that whether there is peace, war, or embargo, our resources are yet abundant to carry us on, at least until the next winter; and as we are to meet again in three months, it follows that the present undigested project must be worse than useless. to all this mass of evidence and authority against both the necessity and policy of laying this duty, i have only to add a few observations to show that it will, in its operation, be both unequal and unjust. it is well known that permanent duties, except on their first imposition, are paid by the consumer; but whenever duties are to be of short duration, as in the present instance, or until the stocks of merchandise prior to the assessment of the duty are run off, the price does not rise in ratio with the duty, and that, of consequence, the whole, or part of the duty, is thus much of loss to the merchant. this, in a degree, cannot be avoided, nor is it even a subject of complaint, where due notice has been given of the intention to lay the duty; but if it be imposed without notice, or giving time for preparation, then the interest of the merchant is sacrificed. the basis of all commerce is calculation; what calculation can be found for distant enterprises when the data are perpetually shifting? if a merchant rests on the stability of the laws of the government, and sends away his vessel, and on her return finds a new duty of per cent. imposed, which, for the circumstance of it, the consumer does not pay, his whole calculations are defeated, and he pockets a loss instead of a profit for his industry. commerce is very probably as well understood in england as any where. in that country new duties on imports are imposed with great caution; whenever contemplated, the subject is generally a long time under consideration, sometimes hanging over from one session to another. the ministry make it a point frequently to consult committees of merchants from most of the principal seaports in the kingdom. the result is, the subject is well considered; and, when the duties are imposed, they are submitted to with cordiality and cheerfulness. mr. pitt, in the latter part of his life, always adopted this mode. he did not think it condescension to consult merchants on subjects with which they were better acquainted than himself. in the early part of his administration, i have understood, he rashly imposed some additional and heavy duties on imported merchandise; the consequence was, the revenue diminished, and smuggling increased. with his characteristic vigor he determined to stop it, and lined the coast with luggers, revenue cutters, and frigates; still the revenue did not increase. he consulted the merchants--they told him the articles were taxed beyond their bearing; he manfully retraced his steps, and took off the additional duty--and immediately smuggling did not pay its cost--his luggers, cutters, and frigates, became useless, and the revenue advanced to its ancient standard. this is one among many memorable instances that might be adduced to show that an unwise augmentation of duties is very far from producing an increase of revenue. there is another view of the subject on which i shall say a few words. this new duty will operate as a bounty to monopolizers, forestallers, and speculators. gentlemen are not aware of the avidity with which mercantile men have regarded the proceedings of this session. i am told that, within half an hour after the question was taken, about a fortnight since, in the other house, ten expresses started for different parts of the united states. it is notorious that english and west india goods, and most articles of foreign merchandise in the united states, have been bought up by speculators; it is now in the hands of a few persons; by passing this law, you discourage new importations, and enable the present holders to grind the poor, by extorting high prices for the articles they hold, from a want of competition in the market. from all these views of the subject, and from the sentiments i have quoted from the president, mr. gallatin, and general smith, it is apparent that this measure is unwise, unnecessary, and impolitic. i am unwilling, sir, to take up the time of the senate; but, however unavailing may be the efforts of my friends and myself, i wish to have it recorded that i was neither ignorant of the very injurious operation of this bill upon my constituents, nor unwilling to endeavor to prevent it. i therefore ask the indulgence of the senate, that the ayes and noes may be taken when this question is decided. and on the question, it was determined in the negative--yeas , nays , as follows: yeas.--messrs. bayard, bradley, gilman, hillhouse, lloyd, mitchill, parker, pickering, reed, and white. nays.--messrs. anderson, condit, crawford, franklin, gaillard, gregg, howland, kitchel, leib, meigs, milledge, moore, pope, smith of maryland, smith of new york, smith of tennessee, sumter, thruston, and turner. on motion, by mr. smith, of maryland, the further consideration of the bill was postponed to monday next. friday, march . a message from the house of representatives informed the senate that the house disagree to the first and fourth amendment of the senate to the bill, entitled "an act further to amend the several acts for the establishment and regulation of the treasury, war, and navy departments, and making appropriations for the support of the military establishment and the navy of the united states for the year ;" and they agree to the other amendments to the said bill. _oath of office to the president elect._ the president communicated to the senate the following letter from the president elect of the united states: city of washington, march , . sir: i beg leave, through you, to inform the honorable the senate of the united states, that i propose to take the oath which the constitution prescribes to the president of the united states, before he enters on the execution of his office, on saturday the th instant, at twelve o'clock, in the chamber of the house of representatives. i have the honor to be, with the greatest respect, sir, your most obedient and most humble servant, james madison. the hon. john milledge, _president pro tempore of the senate_. _five o'clock in the evening._ _adjournment._ mr. mitchill, from the committee, reported that they had waited on the president of the united states, who informed them that he had no further communications to make to the two houses of congress. _ordered_, that the secretary notify the house of representatives that the senate having finished the business before them, are about to adjourn. the secretary having performed that duty, the senate adjourned without day. extra session. _the president of the united states_ _to ----, senator for the state of ----_: certain matters touching the public good requiring that the senate should be convened on saturday, the fourth day of march next, you are desired to attend at the senate chamber, in the city of washington, on that day; then and there to deliberate on such communications as shall be made to you. th. jefferson. washington, dec. , . saturday, march . in conformity with the summons from the president of the united states, the senate assembled in the chamber of the house of representatives. present: john milledge, from the state of georgia, president _pro tempore_. nicholas gilman, and nahum parker, from new hampshire. timothy pickering, from massachusetts. chauncey goodrich, from connecticut. elisha mathewson, from rhode island. stephen r. bradley, from vermont. john smith, from new york. aaron kitchel, from new jersey. andrew gregg, from pennsylvania. james a. bayard, from delaware. philip reed, from maryland. william b. giles, from virginia. james turner, and jesse franklin, from north carolina. thomas sumter, and john gaillard, from south carolina. william h. crawford, from georgia. buckner thruston, and john pope, from kentucky. daniel smith, from tennessee. edward tiffin, from ohio. john lambert, appointed a senator by the legislature of the state of new jersey for six years, and samuel smith, appointed a senator by the executive of the state of maryland, attended, and their credentials were read. james lloyd, junior, appointed a senator by the legislature of the state of massachusetts, attended, stating that he was elected, but not in possession of his credentials. joseph anderson, from the state of tennessee; richard brent, from the state of virginia; james hillhouse, from the state of connecticut; michael leib, from the state of pennsylvania; return j. meigs, from the state of ohio; jonathan robinson, from the state of vermont; samuel white, from the state of delaware, severally attended. the oath required by law was administered to the senators above mentioned, in the six years' class, respectively, except to mr. brent. the president of the united states attended, and communicated the following address: unwilling to depart from examples of the most revered authority, i avail myself of the occasion now presented, to express the profound impression made on me by the call of my country to the station, to the duties of which i am about to pledge myself by the most solemn of sanctions. so distinguished a mark of confidence, proceeding from the deliberate and tranquil suffrage of a free and virtuous nation, would, under any circumstances, have commanded my gratitude and devotion, as well as filled me with an awful sense of the trust to be assumed. under the various circumstances which give peculiar solemnity to the existing period, i feel that both the honor and the responsibility allotted to me are inexpressibly enhanced. the present situation of the world is, indeed, without a parallel, and that of our own country full of difficulties. the pressure of these, too, is the more severely felt, because they have fallen upon us at a moment when the national prosperity being at a height not before attained, the contrast, resulting from the change, has been rendered the more striking. under the benign influence of our republican institutions, and the maintenance of peace with all nations, whilst so many of them were engaged in bloody and wasteful wars, the fruits of a just policy were enjoyed in an unrivalled growth of our faculties and resources. proofs of this were seen in the improvements of agriculture; in the successful enterprises of commerce; in the progress of manufactures and useful arts; in the increase of the public revenue, and the use made of it in reducing the public debt; and in the valuable works and establishments every where multiplying over the face of our land. it is a precious reflection that the transition from this prosperous condition of our country, to the scene which has for some time been distressing us, is not chargeable on any unwarrantable views, nor, as i trust, on any involuntary errors in the public councils. indulging no passions which trespass on the rights or the repose of other nations, it has been the true glory of the united states to cultivate peace by observing justice; and to entitle themselves to the respect of the nations at war, by fulfilling their neutral obligations with the most scrupulous impartiality. if there be candor in the world, the truth of these assertions will not be questioned; posterity, at least, will do justice to them. this unexceptionable course could not avail against the injustice and violence of the belligerent powers. in their rage against each other, or impelled by more direct motives, principles of retaliation have been introduced, equally contrary to universal reason and acknowledged law. how long their arbitrary edicts will be continued, in spite of the demonstrations that not even a pretext for them has been given by the united states, and of the fair and liberal attempt to induce a revocation of them, cannot be anticipated. assuring myself, that, under every vicissitude, the determined spirit and united councils of the nation will be safeguards to its honor and its essential interests, i repair to the post assigned me with no other discouragement than what springs from my own inadequacy to its high duties. if i do not sink under the weight of this deep conviction, it is because i find some support in a consciousness of the purposes, and a confidence in the principles which i bring with me into this arduous service. to cherish peace and friendly intercourse with all nations having correspondent dispositions; to maintain sincere neutrality towards belligerent nations; to prefer, in all cases, amicable discussion and reasonable accommodation of differences, to a decision of them by an appeal to arms; to exclude foreign intrigues and foreign partialities, so degrading to all countries, and so baneful to free ones; to foster a spirit of independence, too just to invade the rights of others, too proud to surrender our own, too liberal to indulge unworthy prejudices ourselves, and too elevated not to look down upon them in others; to hold the union of the states as the basis of their peace and happiness; to support the constitution, which is the cement of the union, as well in its limitations as in its authorities; to respect the rights and authorities reserved to the states and to the people, as equally incorporated with, and essential to the success of, the general system; to avoid the slightest interference with the rights of conscience or the functions of religion, so wisely exempted from civil jurisdiction; to preserve, in their full energy, the other salutary provisions in behalf of private and personal rights, and of the freedom of the press; to observe economy in public expenditures; to liberate the public resources by an honorable discharge of the public debts; to keep within the requisite limits a standing military force, always remembering that an armed and trained militia is the firmest bulwark of republics; that without standing armies their liberty can never be in danger, nor with large ones safe; to promote, by authorized means, improvements friendly to agriculture, to manufactures, and to external as well as internal commerce; to favor, in like manner, the advancement of science and the diffusion of information, as the best aliment to true liberty; to carry on the benevolent plans which have been so meritoriously applied to the conversion of our aboriginal neighbors from the degradation and wretchedness of savage life, to a participation of the improvements of which the human mind and manners are susceptible in a civilized state;--as far as sentiments and intentions such as these can aid the fulfilment of my duty, they will be a resource which cannot fail me. it is my good fortune, moreover, to have the path in which i am to tread lighted by examples of illustrious services, successfully rendered in the most trying difficulties, by those who have marched before me. of those of my immediate predecessor it might least become me here to speak. i may, however, be pardoned for not suppressing the sympathy with which my heart is full, in the rich reward he enjoys in the benedictions of a beloved country, gratefully bestowed for exalted talents, zealously devoted, through a long career, to the advancement of its highest interest and happiness. but the source to which i look for the aids which alone can supply my deficiencies, is in the well-tried intelligence and virtue of my fellow-citizens, and in the counsels of those representing them in the other departments associated in the care of the national interests. in these my confidence will, under every difficulty, be best placed, next to that which we have all been encouraged to feel in the guardianship and guidance of that almighty being whose power regulates the destiny of nations, whose blessings have been so conspicuously dispensed to this rising republic, and to whom we are bound to address our devout gratitude for the past, as well as our fervent supplications and best hopes for the future. after which, the oath prescribed by law was administered to the _president of the united states_, by the chief justice. the president of the united states then retired, and the senate repaired to their own chamber. _ordered_, that messrs. anderson and bayard be a committee to wait on the president of the united states, and notify him that the senate are ready to receive any communications that he may be pleased to make to them. monday, march . francis malbone, appointed a senator by the legislature of the state of rhode island, for six years, commencing on the th instant, attended, and produced his credentials, which were read. the credentials of richard brent, appointed a senator by the legislature of the state of virginia, for six years, commencing on the th instant, were read. the oath required by law was administered to messrs. brent and malbone, respectively. on motion, by mr. robinson, _resolved_, that the secretary of the senate be authorized to pay, out of the contingent fund of this house, to george thomas, walter reynolds, and tobias simpson, the sum of fifty dollars each, in addition to their annual compensation. mr. anderson reported, from the committee, that they had waited on the president of the united states, who informed them that he should this day make a communication to the senate. soon after, a communication was received from the president of the united states, submitting sundry nominations to office, which were mostly confirmed. tuesday, march . _adjournment._ after the consideration of executive business, messrs. bayard and reed were appointed a committee to wait on the president of the united states, and notify him that, unless he may have any further communications to make to them, the senate are ready to adjourn. mr. bayard reported, from the committee, that they had waited upon the president of the united states, who informed them that he had no further communications to make to them. whereupon, the senate adjourned without day. footnotes: [ ] missing line. tenth congress.--second session. proceedings and debates in the house of representatives. monday, november , . this being the day appointed by law for the meeting of the present session, the following members of the house of representatives appeared, and took their seats, to wit: _from new hampshire_--daniel m. durell, francis gardner, jedediah k. smith, and clement storer. _from massachusetts_--ezekiel bacon, joseph barker, orchard cook, richard cutts, josiah deane, william ely, isaiah l. green, daniel ilsley, edward st. loe livermore, josiah quincy, ebenezer seaver, william stedman, jabez upham, and joseph b. varnum, (the speaker.) _from rhode island_--isaac wilbour. _from connecticut_--epaphroditus champion, samuel w. dana, john davenport, jr., jonathan o. mosely, timothy pitkin, jr., lewis b. sturges, and benjamin tallmadge. _from vermont_--martin chittenden, james elliot, and james fisk. _from new york_--john blake, jr., john harris, reuben humphreys, william kirkpatrick, gurdon s. mumford, samuel riker, john russell, peter swart, john thompson, james i. van allen, killian k. van rensselaer, and daniel c. verplanck. _from new jersey_--adam boyd, william helms, john lambert, thomas newbold, james sloan, and henry southard. _from pennsylvania_--david bard, robert brown, william findlay, john heister, william hoge, william milnor, daniel montgomery, jr., john porter, john pugh, john rea, matthias richards, john smilie, samuel smith, and robert whitehill. _from maryland_--charles goldsborough, william mccreery, john montgomery, nicholas r. moore, and archibald van horne. _from virginia_--burwell bassett, william a. burwell, john clopton, john dawson, john w. eppes, james m. garnett, peterson goodwyn, edwin gray, david holmes, john g. jackson, joseph lewis, jr., john love, john morrow, thomas newton, john smith, abram trigg, and alexander wilson. _from kentucky_--joseph desha, benjamin howard, and richard m. johnson. _from north carolina_--willis alston, jr., william blackledge, thomas blount, john culpeper, nathaniel macon, lemuel sawyer, and richard stanford. _from tennessee_--george w. campbell, john rhea, and jesse wharton. _from south carolina_--lemuel j. alston, william butler, joseph calhoun, john taylor, and david r. williams. _from georgia_--william w. bibb, and george m. troup. _from ohio_--jeremiah morrow. _from the mississippi territory_--george poindexter, delegate. two new members, to wit: nathan wilson, returned to serve in this house as a member for new york, in the room of david thomas, who hath resigned his seat, and thomas gholson, jr., returned to serve as a member from virginia, in the room of john claiborne, deceased, appeared, produced their credentials, and took their seats in the house. and a quorum, consisting of a majority of the whole number, being present, a message was received from the senate, informing the house that a quorum of the senate is assembled, and ready to proceed to business; the senate have appointed a committee on their part, jointly with such committee as may be appointed on the part of this house, to wait on the president of the united states, and inform him that a quorum of the two houses is assembled, and ready to receive any communications he may be pleased to make to them. the oath or affirmation to support the constitution of the united states was then administered to mr. nathan wilson and mr. gholson, by mr. speaker, according to law. _ordered_, that a message be sent to the senate to inform them that a quorum of this house is assembled, and ready to proceed to business; and that the clerk of this house do go with the said message. the house proceeded to consider the resolution of the senate for the appointment of a joint committee of the two houses to wait on the president of the united states and inform him that a quorum of the two houses is assembled, and ready to receive any communication he may be pleased to make to them: whereupon, the house agreed to the said resolution; and mr. macon, mr. quincy, and mr. mccreery, were appointed the committee on their part. mr. macon, from the joint committee appointed to wait on the president of the united states, and inform him that a quorum of the two houses is assembled, reported that the committee had performed that service; and that the president signified to them he would make a communication, in writing, to this house, to-morrow at twelve o'clock, by way of message. tuesday, november . several other members, to wit: from pennsylvania, jacob richards; from virginia, matthew clay, and walter jones; and from south carolina, robert marion, appeared, and took their seats in the house. a new member, to wit, samuel shaw, returned to serve in this house as a member from the state of vermont, in the room of james witherell, who has resigned his seat, appeared, produced his credentials, was qualified, and took his seat in the house. a message from the senate informed the house that the senate have resolved that two chaplains, of different denominations, be appointed to congress for the present session, who shall interchange weekly; to which they desire the concurrence of the house. the house proceeded to consider the foregoing resolution of the senate, and it was agreed to. the speaker laid before the house a letter from the governor of the state of pennsylvania, enclosing a letter to him from joseph clay, the representative for the district composed of the city and county of philadelphia, and county of delaware, in the said state, containing his resignation of a seat in this house; also a proclamation of the said governor, and a certificate of the election of benjamin say, to serve as a member for the said district and state, in the room of the said joseph clay; which were read, and referred to the committee of elections. wednesday, november . another member, to wit, robert jenkins, from pennsylvania, appeared, and took his seat in the house. the house proceeded in the reading of the documents accompanying the president's message; which being concluded, on motion of mr. dawson, they were referred, together with the message, to a committee of the whole on the state of the union, and ordered to be printed. on the question as to the number to be printed, it was moved by mr. fisk, and seconded by mr. dana, that ten thousand copies be printed. negatived by a considerable majority. five thousand copies were then ordered to be printed. the house was then cleared and the doors closed for the purpose of reading the confidential part of the president's message. thursday, november . several other members, to wit: from virginia, wilson cary nicholas and john randolph; and from north carolina, james holland, appeared and took their seats in the house. the house then proceeded, by ballot, to the appointment of a chaplain to congress, for the present session, on the part of the house; and upon examining the ballots, a majority of the votes of the whole house was found in favor of the rev. obadiah brown. friday, november . two other members, to wit: from massachusetts, samuel taggart; and from maryland, john campbell, appeared, and took their seats in the house. a new member, to wit, richard s. jackson, returned to serve in this house, as a member for the state of rhode island, in the room of nehemiah knight, deceased, appeared, produced his credentials, was qualified, and took his seat in the house. monday, november . several other members, to wit: from new york, josiah masters; from maryland, philip b. key; and from north carolina, thomas kenan, appeared, and took their seats in the house. tuesday, november . another member, to wit, james kelly, from pennsylvania, appeared, and took his seat in the house. wednesday, november . another member, to wit, roger nelson, from maryland, appeared, and took his seat in the house. a new member, to wit, benjamin say, returned to serve in this house as a member from the state of pennsylvania, in the room of joseph clay, who has resigned his seat, appeared, produced his credentials, was qualified, and took his seat in the house. _miranda's expedition._ mr. mccreery presented the petition of thirty-six american citizens, confined at carthagena, in south america, under the sentence of slavery. the petition was read as follows: vaults of st. clara, carthagena, september , . _to the honorable the congress of the united states of america, in congress assembled_: the petition of thirty-six american citizens confined at carthagena, south america, under sentence of slavery, humbly showeth: that we, your petitioners, were brought from new york in the armed ship leander, thomas lewis, commander, on the d of february, , together with a number of others, mostly inhabitants of that state and city, under the most specious engagements of their country; to establish which, they beg leave to state that colonel william smith, then surveyor of the port of new york, william armstrong, daniel d. durning, and john fink, butcher, of the city of new york, declared they were authorized to enlist a number of men to go to new orleans, to serve as guards to the united states mails, and a number of others as mechanics. some backwardness on the part of your petitioners to engage being discovered by william smith, he read passages from letters to prove his authority, and several paragraphs from newspapers to convince them of the validity of their engagements. william armstrong and daniel d. durning were appointed to command them, and were to accompany them to the city of washington, where they were to receive clothing and accoutrements, and thence to new orleans. the ship leander, owned by samuel g. ogden, and formerly in the st. domingo trade, was procured for the conveyance of your petitioners to the city of washington, for which purpose she was hauled down to the watering place, where your petitioners went on board her the st day of february, , and the next day (the d) the ship put to sea. shortly after, miranda, under the name of martin, and a number of persons hitherto unknown to your petitioners, appeared on board, in the character of his officers; which, for the first time, awakened strong suspicions in the breasts of your petitioners that they had been entrapped into the power of wicked and designing men, and that, too, when retreat was impracticable. from new york your petitioners were carried to jacmel, in the island of st. domingo, where they were exercised in military duty, under the most arbitrary stretch of power, by miranda and his officers. at jacmel several attempts to escape proved abortive, from the vigilance of our oppressors, they having procured guards to be stationed in all the passes leading from jacmel to other parts of the island, where your petitioners might expect to receive aid and protection from their countrymen. at jacmel two schooners were hired, on board of which your petitioners were sent, under the care of a number of officers, whose wariness still remained unabated; and on the th march, , the ship, accompanied by the two schooners, proceeded towards the coast of terra firma, where, after touching at the island of aruba for refreshments, she arrived on the th of april, when two armed vessels hove in sight, which after some manoeuvring the ship engaged but soon ran away, leaving the two schooners to be captured. they were carried into porto cabello, where your petitioners were proceeded against as pirates, a number of warlike implements being found on board, which were placed there without the knowledge of your petitioners. and on the th july following, the process against us closed at caraccas, sentencing ten, whom they considered to be criminally engaged, to be hanged and beheaded, and the remainder (your petitioners) to eight and ten years' slavery on the public works at omoa, bocca chica, and the island of porto rico. your petitioners were all sent to this place, where those sent to bocca chica were put to work, chained two-and-two, and the residue, in double irons and close confinement, strongly guarded, waiting for an opportunity to be sent to their respective places. upon several occasions your petitioners were told by william armstrong, thomas lewis, and others, that they were sent out by the government of the united states. to prove to the satisfaction of your honorable body the truth of the above statement, your petitioners beg you will examine robert laverty, john stagg, john ritter, matthew morgan, richard platt, adam ten brook, and john miller, of new york, who were under the same engagements with your petitioners. francis white and thomas mcallister, butchers in the bear market, new york; mr. brinkerhoff, tavern keeper, near the bear market; david williams, john garret, and a mr. kemper, weighmaster, whose son was executed at porto cabello, were present when all or most of your petitioners were engaged, and can prove beyond all doubt that your petitioners could have had no other idea than that of entering into the service of the united states. captain bomberry, of the ship mary, of baltimore; captain israel, of the brig robert and mary; captain waldron, of the schooner victory; and captain abbot, of the brig charleston packet, all of philadelphia, were eye-witnesses to the tyranny and oppression under which your petitioners labored while at jacmel. when the crew of the bee, one of the schooners which was chartered by the leander, refused to go in her, a number of officers from the ship, with lewis at their head, came on board the bee, and, after beating and cutting the men with sticks and sabres in the most brutal manner, dragged them on board the leander, put them in irons under a strong guard, and kept them there until the moment of sailing, when they were sent on board the bee, with orders to keep near and to leeward of the ship. another man, who had effected his escape from a french privateer, and found his way to jacmel, with the hope of getting a passage home in some of his country vessels, was seized at the instance of thomas lewis, commander of the leander, and captain under miranda, thrown into prison, and compelled to go in the expedition, or to starve in jail. your petitioners are confident, that, when your honorable body becomes thoroughly acquainted with the circumstances of art and deception which betrayed them into the expedition, the destination of which they had no knowledge until it was too late to retreat, you will not only punish such of their betrayers as are within reach of your power, but will adopt proper measures to restore your unfortunate petitioners to liberty and their families. we beg leave to mention that jeremiah powell, who was an officer of high confidence in the expedition, was pardoned without hesitation by the spanish monarch, on the application of his father. your petitioners have embraced many opportunities to convey to your honorable body the prayer of a petition, but, from the length of time elapsed since they sent off their last, and not hearing of any measures being adopted in their favor, they fear none ever arrived; and by the present opportunity several copies of this petition have been transmitted to gentlemen residing in different parts of the united states, with the hope that some of them may arrive safe. your petitioners cannot for a moment believe that the united states will suffer officers under her constitution to kidnap her citizens into expeditions and services fitted out and maintained by a foreign outlaw against powers with which she is at amity and peace, under the specious pretence of engaging them into the service of their country, without punishing the aggressors, and using every effort to regain her citizens. such is the case of your unfortunate petitioners, who entreat you as children would a parent, to relieve them from total destruction, on the brink of which they have been thrown by the practise of frauds and villanies hitherto unheard of. a short time since, a british ship of war arrived at this place, the commander of which, (edward kittoe, esq.,) upon being applied to by nine of our companions, who declared themselves to be british-born subjects, and being made acquainted with the circumstances which led to our capture, immediately sent on a petition to the viceroy of this kingdom in behalf of us all, but particularly for such as are british subjects, whom we expect will eventually be liberated. nothing but humanity and a strong desire to relieve distress could have induced captain kittoe to this step, who, we are confident, as much as ourselves, regrets its failure of success, and to whom we feel every way indebted, and shall ever recollect it with gratitude and thanks. when your petitioners remonstrate against any harsh treatment of these people, they invariably ask, "why don't your country liberate you?--it rests solely with them." your petitioners feel confident, from the justness of their claim to the interference and protection of the constituted authorities of their country, measures will be adopted to restore them to liberty; and having no doubt but your honorable body will afford them that protection which citizens have a right to claim from their country, your petitioners beg that your honorable body will convey them an answer, and your petitioners, as in duty bound, will ever pray, &c. robert saunders, benjamin davis, henry sperry, joseph hickle, ellery king, william long, daniel newbury, wm. cartwright, samuel tozier, james hyatt, abram head, robert stevenson, samuel price, robert reins, hugh smith, benjamin nicholson, geo. ferguson, wm. pride, pompey grant, david heckle, bennett b. negus, john moore, john m. elliot, henry ingersoll, john parcels, john hayes, david winton, matthew buchanan, alexander buchanan, jas. w. grant, john edsall, thomas gill, joseph bennett, phineas raymond, peter nautly, stephen burtis. carthagena, august , . on my arrival at this place, i was applied to in behalf of the unfortunate men captured under the orders of general miranda, who are under sentence of transportation to the different public works at omoa, porto rico, &c., among whom are several british subjects, (whose names are inserted below.) i am well aware of the enormity of their crime, as i understand they were taken without colors or papers; but, as a british officer, i consider it a duty to plead for those in distress, wherever they may be found; and i trust, from the known lenity of your excellency's character, i shall not plead in vain. the men in question are originally of british descent, and are allied to my nation by many ties. they have no consul--no minister--to prefer the prayer of their petition to your excellency, having been prevented by the war between our nations from making known their situation to the president of the united states. suffer me, therefore to address your excellency, and beg for their release, on a solemn promise that they will never be found again in arms on a similar occasion. as i am the hearer of welcome tidings to the inhabitants of the province under your excellency's command, make me also the hearer of them to the unhappy sufferers now confined in carthagena. it is true, i am unauthorized to make this request in the name of the british government for the men in general, but i am convinced the step will be approved; and if your excellency will lend a favorable ear to my petition the circumstance will not pass unnoticed on their part; at all events, your excellency will have the prayer of many individuals for your eternal happiness, and among them will be found (not the least fervent) those of your excellency's most humble servant, edward kittoe, _com. h. b. m. ship sabina_. p. s.--if my request for the liberation of all general miranda's men is by your excellency deemed unreasonable or improper, i beg to confine it particularly to such as are british subjects: that is an indispensable duty i owe to them and my country. _names of british subjects under sentence of transportation at carthagena._ john moore, peter nautly, john hayes, thomas gill, joseph bennett, james grant, samuel tozier, robert stevenson, and hugh smith, (a boy.) _territorial governments._ ordinance of . mr. poindexter, from the committee appointed on the subject, reported a bill concerning the power of the territorial governments. [the object of it is to take away from governors of the territories the power of proroguing or dissolving their legislatures.] the bill was twice read; and mr. poindexter observed, that as the bill must stand or fall on its principle, and could not want amendment, he should wish to dispense with the usual course of reference to a committee of the whole, and that it should be engrossed for a third reading. mr. troup hoped the house would not be precipitated unadvisedly into a decision of a question of this kind; that they would not break in upon a system which had served them so well without maturely deliberating upon it. the ordinance for the government of the territories he considered as constitutional law, and it should be viewed and treated with as much delicacy as the constitution of the general government itself. it had served them well, it had nurtured the territories from infancy to maturity, and he hoped the house would not innovate on the system, but for the most substantial reasons. he therefore wished this bill to take the course of all other business, and go to a committee of the whole. mr. poindexter said it was not his object to exclude deliberation by his motion; as the day for its third reading might be fixed a fortnight hence, if the gentleman from georgia wished it. he knew the difficulty of getting up such bills when committed to a committee of the whole; he also knew that in a few days the house would be engaged in great national concerns, which would occupy their entire attention to the exclusion of other business of minor importance. the gentlemen seem to think (said mr. p.) that to leave to the governors of territories of the united states powers which are fitted but for the sovereigns of europe, is highly decorous; whilst i think they should be spurned from the statute book. the gentleman is mistaken when he says that we should view the ordinances in the same light as the constitution; they are mere statutes. placed by the constitution under the particular care of congress as the territories are, the ordinances enacted for their government are mere statutes, subject to the revision of congress, as other laws are. mr. pitkin said the ordinances for the government of the territories had been framed with great deliberation, and should always be considered as a compact between the general government and its territories. whether an alteration could or could not be made without their consent, he would not undertake to say. he thought therefore in this case the usual rule should not be violated, for it was well known that no amendment could be received on the third reading of a bill. mr. troup said the gentleman from the mississippi territory had totally mistaken his object. it was not procrastination that he wanted, but a mature consideration of the question, whether on this day or on this day fortnight. when he had considered the ordinance as a compact equally sacred with the constitution of the united states, and as unalterable without the consent of the parties to it, it was then that he considered this a question of such great and signal importance that he wished time for deliberation. and when he said this, he expressed the opinion of a man than whom no man in the country was more deeply read in its constitution--st. george tucker--who had described it as a compact unalterable, but with the consent of both parties. the gentleman would take away from the territorial governors the power to prorogue and dissolve the assemblies. what would then be the state of the territorial legislatures? they would (said mr. t.) be as completely independent of the general government as the general government is, i hope, of great britain at this moment. retain the qualified veto, and take away the power to prorogue and dissolve, and what will be the consequence? the moment a misunderstanding takes place between the legislature and executive, legislation is at an end; and where legislation ends, revolution begins, and there is an end of government. mr. poindexter said, at the suggestion of several gentlemen, he should consent to a reference of the bill to a committee, as he did not wish now to hasten the discussion. but the gentleman was mistaken if he supposed that taking away the power to prorogue, would deprive the governors of their veto on laws. the governors had an unqualified veto on the acts of the legislature. the gentleman said, (observed mr. p.,) that take away the power of prorogation, and if a misunderstanding arise between the governor and the legislature, there is an end of legislation. that is now the fact. if there be any misunderstanding between them, the governor sends the legislature home; and i agree with the gentleman from georgia, "where legislation ends, revolution begins." in this situation, i wish to take some power from the governor and place it in the people, which would render the government more congenial to the spirit of the constitution and of the people of the united states. but i waive discussion and consent to reference. the bill was made the order of the day for to-morrow. thursday, november . another member, to wit, dennis smelt, from georgia, appeared, and took his seat in the house. _foreign relations._ mr. macon said, already had many resolutions been submitted to the consideration of the house on the subject of our foreign relations, and the embargo; some for a total and some for a partial repeal of it. as none of the motions had met his entire approbation, and as he considered this as one of the most important questions that could come before the house, he wished to submit to the house two or three propositions; which he wished to take a course different from that which had been given to the others on the same subject. i have been astonished (said mr. m.) to see so many resolutions on the subject of the embargo, and none contemplating its entire continuance. is the american nation ready to bow the neck? are we ready to submit to be taxed by great britain and france, as if we were their colonies? where is that spirit which for this reason separated us from the nations of europe? where is that spirit which enforced a simple resolution of the old congress, not then binding upon the people, as a law from heaven? is it extinct? is it lost to this nation? has the love of gain superseded every other motive in the breasts of americans? shall the majority govern, or shall a few wicked and abandoned men drive this nation from the ground it has taken? is it come to this, that a law constitutionally enacted, even after a formal decision in favor of its constitutionality, cannot be enforced? shall the nation give way to an opposition of a few, and those the most profligate part of the community? i think the stand we took last year was a proper one; and i am for taking every measure for enabling the nation to maintain it. just as our measure is beginning to operate, just as provisions are becoming scarce in the west indies and elsewhere, notwithstanding the evasions of our law, we are called upon to repeal it. i should not have made this motion at this time, had it not been for the petition just presented. when i stand here, sir, charged by a part of the community with being one of "the enemies of the people," notwithstanding i am willing to commit the petition, treating it with that respect which i conceive to be due from us to the prayer of any portion of the people, i wish my sentiments on this subject to be seen. a proclamation has been issued by one of the belligerents since the passage of our embargo law, sir. look at it. what says it? clearance or no clearance, we will receive any neutral vessel into our ports; and, in speaking of neutrals, recollect that there is no nation in the civilized world that has a claim to the title, except ourselves. this proclamation then tells our citizens, "evade the laws of your country, and we will receive and protect you." this is the plain english of it. if the mad powers of europe had entered into compact to injure us as much as they could, they could not have taken a more direct course to it. i consider them both alike, and the measures i would take would place them both on the same footing. i have made my resolutions as general as possible, to give all latitude to the committee. mr. m. then read his resolutions as follows: "_resolved_, that the committee appointed on that part of the president's message which relates to our foreign relations, be instructed to inquire into the expediency of excluding by law from the ports, harbors, and waters of the united states, all armed ships and vessels belonging to any of the belligerent powers having in force orders or decrees violating the lawful commerce of the united states as a nation. "_resolved_, that the same committee be instructed to inquire into the expediency of prohibiting by law the admission into the ports, harbors, and waters of the united states, any ship or vessel belonging to or coming from any place in the possession of any of the above-mentioned powers, and also the importation of any goods, wares, and merchandise, the growth, produce and manufacture of the dominions of any of the said powers. "_resolved_, that the same committee be instructed to inquire into the expediency of amending the act laying an embargo, and the several acts supplementary and additional thereto." on the subject of the first of these resolutions (said mr. m.) it might be proper to interdict the entrance of all armed vessels, although i have confined the interdiction to the belligerents. a certain time might be fixed on which the second should go into operation. i have thought proper, sir, to bring forward all these resolutions together to show my own opinion on what ought to be done. it is time for those who think the embargo a lawful and proper measure, to come forward and declare it. no other person having as yet thought proper to do it, i have now done it. i believe the embargo was right; that it was right to pass laws to enforce it; and believing this, i feel no hesitation in avowing it. time has been when the impressment of our seamen was cried out against by a large majority of congress. now the cry is, that we will not let them go out and be taken. for if they go out they must be taken. neither of the two great powers of europe have shown the least disposition to relax their measures; neither i hope shall we. i believe we have but three alternatives--_war_, _embargo_, or _submission_. the last i discard; this nation never would submit; nor are there many people in it that would. that is out of the question; then, the only question is, whether in the present state of the world, the embargo or war is the best for us? arm your merchantmen, as has been proposed, send them out, and you have war directly? if we are to have war, i should rather have it openly, and let the nation know that we mean it. i am for the embargo yet. i am told flour is from thirty to fifty dollars a barrel in the west indies; i am also told that wheat is fourteen shillings sterling a bushel in england. this must have an effect, if adhered to, through spain and portugal. france, if she carries her armies into that country, cannot support them. nor can spain support her own armies, and at the same time those great britain sends there; for where war is waged, almost all agriculture is destroyed; and it only requires firmness in us to force them both by this measure to acknowledge our rights. if i am mistaken in my opinion, i wish that measure to be adopted which may best maintain our rights and independence. it is not the embargo which causes the pressure on the people. no, sir, it is the orders and decrees of england and france. take a license from england, and you may trade, but on no other terms. let an officer of the british fleet visit your vessel, and france will condemn it. these are the things which destroy commerce. the country in which i live feels the measure as much as any; there are agriculturists, and their crops remain unsold; and if they will do without the principal, and resist imposition by withholding their produce, those who make a profit by the freight of our produce, may afford to lose that profit. can any man tell what would be the consequence of war, in these times? in common war some regard is had to the laws of nations by belligerents, and they fight each other. in the present war the belligerents disregard the laws of nations, and fight every one but one another. mr. quincy said he wished the last resolution to be separated from the first, as the house would be committed by its adoption. not that he wished to avoid a discussion of that subject, for he wished for nothing so much as that the house would permit them to go into a discussion of the subject in committee of the whole. [mr. macon consented that the last resolution should lie on the table.] mr. q. said he wished to press a discussion on the subject of the embargo; for such was the state of public opinion in the northern part of the union, that but one general sentiment prevailed, that the embargo would be immediately raised. instead of postponing the subject from day to day, he only wished it to come before the house that gentlemen might understand one other, and put an end to the doubts that now existed. the first and second resolutions offered by mr. macon were agreed to without a division. the third was ordered to lie on the table--yeas . friday, november . _territorial governments.--ordinance of ._ on motion of mr. poindexter, the house resolved itself into a committee of the whole, on the bill concerning territorial governments. the bill having been read-- mr. bibb said, that if the house were now called upon for the first time to pass an ordinance for the government of the territories of the united states, he should attach very little importance to the decision of the present question. but he considered it not now an abstract question of expediency, but as one of great moment, from the circumstances with which it was connected. he denied the right of the house to pass the bill; and if they had not the right, it was surely unnecessary to argue the question on the ground of policy. it would be recollected that the mississippi territory was formerly the property of the state of georgia, and ceded by that state to the united states on certain conditions, _one of which was that the ordinance for the government of the territory northwest of the ohio should be the basis of the government of the mississippi territory_.[ ] if this, said he, be one of the conditions of a compact between the united states and georgia, surely the united states have no right to infringe it without the consent of georgia; and i, as one of her representatives, formally protest against the passage of this bill. it may be said that georgia is very little interested in the abstract question, whether the governor should or should not have the power of prorogation; but, if a right exists to alter one part of the ordinance without the consent of georgia, it certainly implies a power to alter it in every part. mr. poindexter said he would state the reasons for which he had introduced the bill, and which would, he hoped, insure it the sanction of the committee. i will, in the first place, said mr. p., advert to that part of the ordinance which is proposed to be amended by the bill under consideration. in the ordinance for the government of the northwestern territory will be found this article: "the governor shall have power to prorogue and dissolve the general assembly, when, in his opinion, it shall be expedient." the bill proposes to take away this power, as being arbitrary and oppressive in the extreme, and incompatible with the constitution of the united states. this ordinance was passed previous to the adoption of the federal constitution, and if it had been the subject of consideration subsequent to its adoption, this provision had never been inserted, giving to governors of territories a power paramount to any power possessed by the president of the united states. take away this power and a governor will still have left the power of negativing all acts, so that none can pass without his assent; and, being the agent of the general government, he would give consent to no law incompatible with the interests of the united states. it has been said that the ordinance cannot be altered without the common consent of the parties to it, and that the state of georgia must be called upon to give its assent before the congress can alter it. there are two parts of this ordinance; the first contains the form of government, and the second several articles of compact which are declared unalterable but with common consent. after reciting the form of government, the ordinance says: "the following articles shall be considered as articles of compact between the original states and the people of the states in the said territory, and forever remain unalterable, unless by common consent, to wit." [here follow six articles.] the ordinance declares that which follows the declaration to be unalterable, but by common consent; it follows of consequence that that which precedes the declaration is alterable. independent of this reasoning, which cannot be refuted, at every session since we have been a territory, there have been laws passed altering the ordinance in some shape or other. for example, the ordinance requires two judges to hold a court; and, in a variety of instances, congress has legislated with respect to the form of government of the territory. i had supposed that the articles of agreement between the united states and georgia had become obsolete, with respect to the imagined necessity of the consent of georgia to legislation on the subject of the territory. it was urged at the last session with all the eloquence which the gentlemen from georgia are in so great a degree possessed, and disregarded; for it was decided by both houses that the united states had a right to rule the territory without the consent of georgia. the constitution of the united states says that congress shall "have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the united states." can an agreement arising from the exercise of this power, supersede the right of exercising the power expressly delegated by the constitution itself? certainly not. on the ground of policy i presume that there is no gentleman who will contend that the power of which i wish to deprive the governors, ought to be retained. the gentleman from georgia himself says, that if he were about to frame an original ordinance, he would not think of such a power. as the opinion of judge tucker has been referred to on one subject, i will refer to it on the subject of prerogative. let it be recollected, that the power to prorogue and dissolve is one of the highest prerogatives of the king of england: that it crept into the governments of his colonies, and thence into this ordinance, previous to the adoption of the constitution. it now remains for the united states to say, whether they will copy after great britain, and because it is a high prerogative, give the governors of the territories of the united states the same powers as she gives to her territorial governors. i trust it will be expunged. "the title 'prerogative,' it is presumed, was annihilated in america with the kingly government." "this definition (of prerogative) is enough to make a citizen of the united states shudder at the recollection that he was born under a government in which such doctrines were received as catholic," &c. this is the opinion of judge tucker. is not this sufficient to induce us to take away from governors this prerogative? is not this feature modelled after the feature in the government of england? certainly; and that it is transferred from her colonial government, i can show by the present ordinance for the government of canada, [to which mr. p. referred.] it is the same principle, and we have copied it. i will not object to retain this power, if any gentleman can show any advantage to be gained by it. i will suppose an extreme case; that any of the territories designed to commit treason, and the legislature were to pass an act giving it their sanction; (and they have shown less treasonable disposition than some of the elder states, if we may judge from occurrences of a few years past)--could not the governor put his negative on this law? there could be no such law without his consent. it is therefore entirely unnecessary, in any possible case, to give the governor the arbitrary power of dissolving the legislature. there is a special reason which has operated upon my mind as forcibly as the general reason in favor of the bill on the table. in the territory which i have the honor to represent, we have been nearly twelve months without any legislature. the governor thought proper to dissolve the assembly without any reason given, for the ordinance does not bind him to assign reasons for his acts. within a few days, a new council has been chosen, which may again be dissolved as soon as it meets, and the territory again left without a legislature, and no reason assigned for the procedure. is it possible that this government will sanction such arbitrary practices? if it does, it will be the first case since the revolution in which such a procedure has been sanctioned. i beg leave to refer gentlemen to the glorious year . i beg them to revert to that instrument, in which all the sins of our political father, george iii., were delineated, and they will find that one of the charges against him was that he permitted his governors to dissolve the legislatures from time to time. are we prepared to ingraft these arbitrary principles into our constitution, and cherish them when practised in so arbitrary a manner? instead of this ordinance being passed with deliberation, it must have passed originally _sub silentio_, and been adopted for all the new territories without any discussion at all; for, if the principle had been investigated, it would never have been enacted into a law. in the declaration of independence it is stated that "he (george iii.) has dissolved representative houses repeatedly, for opposing, with manly firmness, his invasions on the rights of the people." here we see that, at that day, we complained of the arbitrary exercise of power, and i hope that, at this day, we shall give it a death-blow. if any gentleman wishes to retain it, let him show a single possible case in which it can properly be exercised--never, but to gratify the ambition or caprice of an individual. the people elect representatives and send them to legislate; if they do not please the governor, he can say, "gentlemen, go to your homes--i dissolve you." can there be any necessity for this? but i will not detain the house longer, except to express a hope that the committee will not rise, unless it be to report the bill. mr. troup said he would state, in as few words as he could, his objections to the passage of the bill. it was only the day before yesterday that this bill had been introduced into the house, proposing to alter one part of the ordinance. to-day, a petition came from another territory to alter another part of it. before they adjourned, it was ten thousand to one that not a remnant of the ordinance would be left, with their good will. i have before stated it as my opinion, said he, that the articles of the ordinance are a compact between the people of the states and of the territories, unalterable but with the consent of both parties. with the permission of the house, i will read the opinion of judge tucker on this subject: "congress, under the former confederation, passed an ordinance july , , for the government of the territory of the united states northwest of the ohio, which contained, among other things, six articles, which were to be considered as articles of compact between the original states and the people and states of said territory, and to remain unalterable, except by common consent. these articles appear to have been confirmed by the sixth article of the constitution, which declares, that all debts contracted and engagements entered into, before the adoption of the constitution, shall be as valid against the united states under the constitution as under the confederation." in this case there are not only two but three parties to the articles--the united states, the state of georgia, and the people of the territories. you will recollect, as my colleague properly stated to you, that the right of soil and jurisdiction of this territory was originally in the people of georgia. of course georgia had power to prescribe for the territory what form of government she pleased, provided it was republican. by the articles of cession, the right of soil and jurisdiction was ceded to the people of the united states, _on the express condition that the articles of the ordinance should form the government of the mississippi territory, and that they should not be governed otherwise_. the inference inevitably is, that the state of georgia would not have ceded but upon the express condition; and this inference is the more inevitable, inasmuch as, in this clause, georgia has made an express exception to a particular article in the ordinance;[ ] from which, i say that georgia intended that no other alteration should be made. what was the policy of the ordinance, and what the object of its framers? why, assuredly, to render the governments of the territories dependent on the government of the united states. and how was it to be effected? by making the territorial legislature in a great degree dependent on the governor, and him absolutely dependent on the federal executive. the moment we make the legislature of a territory independent of its executive, we make it independent of the federal government. and again, as my colleague has correctly told you, if you have a right to repeal one part of the ordinance, you have a right to repeal another part, and so overturn the whole system at a blow. if so, what will be the effect on the articles of cession and agreement between you and georgia? i will tell you. by the articles of cession you reserve to yourself the right of disposing of the territory; you also agree to pay georgia one million two hundred and fifty thousand dollars out of the product of the first sales of the land. suppose you transferred to the independent legislature of the mississippi territory the right to dispose of this territory, what security has georgia for the payment of her one million two hundred and fifty thousand dollars? moreover, i feel every disposition to treat with respect the people of the mississippi territory, and particularly as i perceive that they approve of that course of our government, in which i most heartily concur; yet i must say that a large majority of the people have a landed interest distinct from that of the government of the united states. take away from the governor his power to prorogue and dissolve, leave him the veto, and there will soon be collision. the legislature passes an act; the governor puts his veto on it. the legislature stands out, and the governor will not yield, and eventually you may, perhaps, have to decide the question of territorial property by the sword. recollect, that upward of six thousand people have gone over in the present year, with every apparent intention to force a settlement against your interest and that of georgia. i am very glad that the military have received orders to disperse them. i trust that they will be dispersed, and that every man who stands forth in resistance will be put to the sword. but the gentleman from mississippi territory is certainly mistaken as to one point. he seems to consider the constitution of the united states as giving to the people of the territories the same rights as the people of the states. _it is a mistaken idea, neither warranted by the letter or spirit of the constitution._ for although the constitution has declared that the people of one state are entitled to all the rights and privileges of another, yet it has not declared that the people of the territories have the same rights as the people of the states. in another part of the constitution it is, indeed, expressly declared that congress shall make all laws for the disposal of the territories; but there is a salvo, that all acts done and contracts made previous to the adoption of the constitution, shall be as binding as if done afterward. the articles of the ordinance were enacted previously, and are consequently binding under the constitution. it cannot be controverted, that they were wisely adopted, and have been salutary in their operation. they were framed by the congress of ' , composed of men whose integrity was incorruptible, and judgment almost infallible. these articles, from that time to this, have remained unaltered, and carried the territories through difficulties, almost insuperable, to prosperity. and now, for the first or second time, an alteration is proposed, the consequence of which cannot be foreseen, without any evidence that it is either necessary or expedient. the population of every new country must necessarily be composed of a heterogeneous mixture of various tempers, characters, and interests. in a population thus composed, it would be highly ridiculous to expect that love of order and obedience to law would always predominate. therefore the old congress wisely reserved to itself the right to control them; to give the governor power, when a legislature became disorderly, to dissolve them; and for the exercise of this power he is accountable to the general government. the gentleman from mississippi wishes us not to treat the territories as children, whose wild extravagances may require correcting by the indulgent hand of their parents, but as the equals of the states, without any other reason than that which he states to be the situation of the people of his territory. they will next wish us to admit them into the union before their population will authorize it; tell us that that territory does not grow fast enough, and we must demolish the system for their convenience. mr. t. adverted to the representation made by mr. poindexter, of the state of things now existing in the mississippi territory. if such were the situation of the territory, and mr. t. said he sincerely regretted it, he could put the gentleman in a way of settling the dispute in a regular and constitutional way, and which would be the most prudent and advisable. certainly, in this dispute, one of the parties must be right and the other wrong. they had nothing to do but prefer their complaints before the proper authority, and, if they were there substantiated, they would obtain redress of their wrongs. if, on the contrary, the people were wrong and the governor right, the wisdom of this part of the ordinance would be proved beyond question. mr. poindexter observed that the gentleman from georgia had set out with telling the house that if the legislature were made independent of the governor, they could pass any law they pleased respecting land titles. the gentleman could not have looked at the ordinance, for there was an express provision that the legislature should "never interfere with the primary disposal of the soil by the united states in congress assembled, nor with any regulations congress may find necessary for securing the title in such soil," &c. independent of this, it is control sufficient if the governor have a veto on the laws. the gentleman has told you, said mr. p., that these articles are unalterable but with common consent. when up before, i read that part which is unalterable. it is the articles of ordinance and not the form of government; and to this judge tucker refers when he speaks of it. the gentleman has said, that the situation of the people would not be bettered by taking away the power, if the veto were left. in my opinion it would be ameliorated. let the governor retain his veto, but let them remain in session, and pass laws, that the general government may see whether such laws are worthy of rejection or of approbation. now, if the governor discovers them about to pass a law or do an act he does not like, he sends them home. lop off a little of this executive power, and let the legislature pass laws which he may negative, and the general government will have an opportunity of seeing that the governor will not consent to proper laws. trust your executive and distrust the people, and you sap the foundation of the government. whatever leads to the conclusion that the people are always wrong and the executive right, strikes at the root of republican institutions. the gentleman has spoken of the wildness and extravagance of the people of the mississippi territory. does he recollect the invasion of the spaniards two years ago? that, at a few days' notice, at the requisition of the commander-in-chief, a detachment of two hundred and fifty militia were sixty miles on their march? when an arch traitor from the east designed to sever the union, the people of the territory, without call, assembled near the city of natchez, and arrested the traitor. these proceedings cannot be exceeded even by the spirit or prudence of the state of georgia. i hope the indignation of this house will be displayed at these insinuations against the motives of people who have manifested the greatest patriotism. in respect to the late measures of the general government, no people feel them more severely than the people of mississippi, and no people better support them. there may be symptoms of wildness and extravagance, but they show a submission to the laws and measures of the union. the gentleman talks of tender parents. if he considers the state of georgia as one of our tender parents, i protest against it. although she be one of our parents, there has been no proposition ever made on this floor, for the good of the territory, which has not met the opposition of that state. but these are subjects on which i will not dwell. the gentleman has stated that a number of people have gone over to the mississippi territory to settle lands, against the express provisions of the law. that, under the pretext of a purchase from an indian, named double head, people have gone over to settle lands, is true; but from where? from georgia. they are citizens of georgia; people nurtured by this tender parent into a state of manhood, and unwilling to participate longer in the tender cares of the state of georgia. they have been, very properly, ordered to be driven off by military force, because they have infringed a law of the united states. but these things do not touch the present question. i now propose to take away a power which has been, by mistake, incorporated into the constitution of a free people. mr. bib said that the state of georgia had never undertaken to legislate for the mississippi territory; but there was a compact existing between the united states and georgia, and he called upon the united states to adhere to it. they dared not violate it, except they could violate the most solemn compact--the constitution. mr. troup observed that it had been said this power of the governor was a badge of slavery copied from the british constitution. that in many things they had been copied too far, he agreed; but as to this prerogative, it was no such badge of slavery, and was found not only in the articles of the ordinance, but in the constitutions of various states, qualified in a greater or less degree. mr. t. quoted the constitutions of new york and massachusetts, both which states had been considered republican. massachusetts, to be sure, was a little wavering now, but he hoped she had not quite gone over to the enemy yet. these constitutions gave a qualified prerogative to the governor of the state. the committee now rose-- to . mr. troup moved that the further consideration of the bill be postponed indefinitely--[equivalent to rejection.] mr. poindexter calling for the yeas and nays on the motion, it was decided--yeas , nays , as follows: yeas.--lemuel j. alston, willis alston, jun., ezekiel bacon, david bard, william w. bibb, william blackledge, john blake, junior, adam boyd, robert brown, joseph calhoun, john campbell, martin chittenden, samuel w. dana, john davenport, jun., william ely, william findlay, francis gardner, charles goldsborough, edwin gray, john heister, william hoge, richard s. jackson, robert jenkins, walter jones, james kelly, william kirkpatrick, john lambert, joseph lewis, jun., robert marion, william mccreery, william milnor, nicholas r. moore, jonathan o. mosely, gurdon s. mumford, wilson c. nicholas, timothy pitkin, junior, john porter, josiah quincy, john randolph, matthias richards, samuel riker, john russell, dennis smelt, henry southard, william stedman, lewis b. sturges, peter swart, samuel taggart, benjamin tallmadge, john taylor, george m. troup, jabez upham, james i. van allen, daniel c. verplanck, robert whitehill, david r. williams, and nathan wilson. nays.--joseph barker, burwell bassett, william a. burwell, william butler, matthew clay, john clopton, john culpeper, john dawson, josiah deane, joseph desha, daniel m. durell, james elliot, john w. eppes, james fisk, meshack franklin, thomas gholson, jun., peterson goodwyn, isaiah l. green, john harris, william helms, james holland, david holmes, benjamin howard, daniel isley, richard m. johnson, nathaniel macon, daniel montgomery, junior, john montgomery, jeremiah morrow, john morrow, roger nelson, thomas newbold, thomas newton, john pugh, john rea of pennsylvania, john rhea of tennessee, jacob richards, benjamin say, ebenezer seaver, samuel shaw, james sloan, john smilie, jedediah k. smith, john smith, samuel smith, richard stanford, clement storer, john thompson, archibald van home, jesse wharton, isaac wilbour, and alexander wilson. so the bill was postponed indefinitely. monday, november . another member, to wit, john boyle, from kentucky, appeared, and took his seat in the house. _naturalized british subjects._ mr. howard presented a petition of sundry inhabitants of the state of kentucky, stating that the king of great britain having, by his proclamation of the sixteenth of october, one thousand eight hundred and seven, claimed the allegiance of all persons who may have been born in his dominions, and were not inhabitants of the united states of america at the period of their revolution, and disregarding the laws of naturalization in other countries, hath authorized the impressment into his service of his pretended subjects, and treated as traitors such as may have taken up arms against him in the service of their adopted country; the petitioners being, at the present time, precluded from the privilege of following commercial pursuits on the high seas in safety, therefore pray that such measures be adopted by congress as may effectually resist the unjust assumption of power claimed and exercised by a foreign nation; and pledging themselves to support with their lives and fortunes whatever steps may be taken, or acts passed, by the general government, for the welfare of the union.--referred to mr. howard, mr. john morrow, and mr. harris, to examine the matter thereof, and report their opinion thereupon to the house. _miranda's expedition._ mr. love, from the committee to whom was referred, on the sixteenth instant, the petition of thirty-six citizens of the united states now confined at carthagena, in south america, under sentence of slavery, made a report thereon; which was read, and ordered to be referred to a committee of the whole house to-morrow. the report is as follows: that it appears, from the statement of the petitioners, that, in february, , they sailed from new york on board the leander, a ship owned by samuel g. ogden, the command of which was, after getting to sea, assumed by general miranda. that, from new york, the said ship sailed to jacmel, where the said miranda procured two schooners, on board which the petitioners were placed, which, together with the leander, sailed, under the command of miranda, about the last of march, in the same year, for the northern parts of south america, and arrived on the coast of terra firma in the latter part of april following. that, upon their arrival on the said coast, the two schooners, on board which the petitioners were embarked, were captured by two spanish armed vessels; the ship leander, with miranda on board, having made her escape. that the petitioners, together with ten others, were convicted by a spanish tribunal, at porto cabello, of the crime of piracy, from the circumstances of suspicion which attached to their situation, and not from any act of that kind committed on the high seas; that the ten others above mentioned were sentenced to death, and the petitioners some to eight, others to ten years' slavery, which they now are suffering; some chained together, others closely confined under heavy irons and a guard, destined to other places and to similar punishment. the petitioners state that they were entrapped into the service of the said miranda, on the said expedition, by assurances made at the time of their engagements, that they were to be employed in the service of the united states, and under the authority of the government. for the truth of their statement, and a confirmation of the charges they make against certain persons of having thus deceived and betrayed them into an involuntary co-operation in the design of fitting out an armament against a nation in amity with the united states, they refer to the testimony of several persons, said to be inhabitants of the city of new york, and to have had proposals made to them similar to those by which the petitioners were induced to engage on board the leander. the petitioners also state that no opportunity was offered them of escaping from the service of the said miranda and his associates; that they were restrained under the most rigorous discipline, and at jacmel, the only place where an opportunity of escape might have been probable, they were strictly guarded to prevent it. for the truth of this they refer to certain captains of vessels then at jacmel belonging to the ports of philadelphia and baltimore. the committee further report that the foregoing statements of the petitioners are unaccompanied by any competent testimony in support of them, and, at the same time, are uncontradicted by any opposing circumstances; they are of opinion that a very strong probability of the petitioners not having been guilty of the crime of wilfully engaging in the unlawful expedition of miranda attends their application: first, because the petitioners have made a detailed statement of facts relative to the deception practised on them, referring to such species of evidence as to render their contradiction easy, if not founded in truth, and thus lessen their claim on their country, and diminish their hopes of liberation: second, because it is presumed they were proven to the spanish tribunal before which they were convicted to have been offenders in a secondary degree, those who were proven to have been more heinously guilty having been sentenced to suffer death. the committee, however, are of opinion that, should the petitioners have been guilty of a crime against the united states by a voluntary or otherwise culpable infraction of its laws, the dictates of humanity no less than the principles of justice, ought to influence the legislature of the united states to adopt the proper means of restoring them to their country, in order that they may expiate the offence by a punishment suited to but not transcending the magnitude of their crime. the committee, therefore, beg leave to submit the following resolution for the consideration of the house. _resolved_, that the president of the united states be requested to adopt the most immediate and efficacious means in his power to obtain from the viceroy of grenada, in south america, or other proper authority, the liberation of thirty-six american citizens, condemned on a charge of piracy, and now held in slavery in the vaults of st. clara, in carthagena, and that the sum of ---- dollars be appropriated for that purpose. tuesday, november . two other members, to wit: from new york, philip van cortlandt, and from south carolina, richard wynn, appeared, and took their seats in the house. _additional revenue cutters._ mr. newton called for the order of the day on the bill authorizing the president to employ twelve additional revenue cutters. the house having resolved itself into a committee of the whole, mr. newton rose to state that the committee of commerce and manufactures had understood, from the proper authorities, there was a necessity for the proper execution of the revenue laws, that the force under the direction of the treasury department should be considerably increased. mr. dana inquired whether any written information touching the necessity there might be for twelve revenue cutters had been received by the committee--any letter from the secretary of the treasury? he thought it was necessary, if so, that it should be submitted to the house. mr. newton replied that there had been no written communication from the proper department to the committee. they had not thought it essential, having also understood that the secretary of the treasury was particularly occupied. however, he had taken the shortest method, by waiting upon the secretary himself, and had received the information before alluded to. he had understood that the probable expense of each cutter would be about $ , , or $ , for the whole, each cutter to carry about twenty men. mr. quincy thought that the correct mode of proceeding would require other than mere verbal information. respect for themselves should induce gentlemen not to act without official communication upon the subject. they could not, upon any other conditions, agree to so great an augmentation of the force under the direction of the treasury department. there had, heretofore, been but ten cutters employed. there were never more than ten when commerce was at its height and the revenue flourishing. but now, the house was called upon to vote twelve additional cutters, when we are without revenue, without commerce, and there is no information of an official nature before the house upon which it might act. mr. newton could not see that it was of any consequence to the house, whether there had been a written communication to it upon the subject, so that the information came through the proper organ, from the proper authority. it was necessary, in times of difficulty like the present, to act with spirit and promptitude. the laws should be executed with the greatest strictness; and it was always wise to take time by the forelock. mr. blackledge said that the expense of building the cutters would be defrayed by the detection of goods attempted to be smuggled. there had already been many condemnations. they were taking place every day. and it was to support the laws that these cutters had been called for. on the motion of mr. newton, that the committee rise and report the bill, it was carried--yeas , nays . thursday, november . another member, to wit, barent gardenier, from new york, appeared, and took his seat in the house. monday, november . another member, to wit, matthew lyon, from kentucky, appeared, and took his seat in the house. _foreign relations._ on the motion of mr. campbell, the house resolved itself into a committee of the whole, on the report of the committee on the subject of our foreign relations. the first resolution, in the following words, having been read: _resolved_, that the united states cannot, without a sacrifice of their rights, honor, and independence, submit to the late edicts of great britain and france: mr. campbell opened the debate. he said that ill health had hitherto prevented and might hereafter prevent him from giving that attention to the subject which the all-important crisis would seem to require; it was, however, his duty to bring the subject before the house. the committee having in their report presented to the house the view in which they had considered the subject referred to them, and the reasons generally which induced them to present these resolutions to the house, he said it was not his intention at this time to enter into a discussion of their merits. those reasons had been deemed sufficient by the committee to justify them in presenting these resolutions to the house; and as the objections to this, if any there were, could not be foreseen, he would not attempt to anticipate them. according to the view which he himself had taken of the first resolution, it could require no discussion, it was too clear to require demonstration, and too self-evident to need proof of its propriety. it might indeed seem to require an apology from the committee for presenting a proposition which every american must long since have determined for himself. when the question had been first presented to his consideration, it had appeared to him that it was totally superfluous, and to be doing little more than announcing to the world that the united states were still independent; but on further consideration, it had been deemed by the select committee of some importance that in the present critical situation of the united states, they should fix on some point at which all would meet. after a perusal of the documents laid before the house at the opening of the session, mr. c. said it had been supposed that no one would hesitate in declaring his indignation at the flagrant violations and encroachments on our rights by the belligerent powers, while it had been supposed that some difference of opinion might exist as to the mode of resistance. after it was once determined that they would not submit, that they would repel aggression, it had been supposed that they might, with greater probability of unanimity, discuss the course proper to be pursued. with a view to this the committee had presented this resolution to the house. it was expected that all would unite in it and prove to the world that the representatives of every portion of the american people were determined to maintain their rights, for the belligerent powers really seemed to suppose that the american people had forgotten them, and had therefore assumed the right of prescribing the course of conduct which we should pursue. to submit to regulations of foreign powers, which limited the conduct of the american people, and prescribed the rules by which they were to be governed, which pointed out the very ports to which they should or should not go, which fixed the tribute or tax which they should pay, would be not only to abandon their dignity and honor, but to surrender, shamefully surrender our independence. mr. c. said he would not take up the time of the committee in showing that the orders of council of great britain and the decrees of france, were, on the part of those nations, an assumption of power to give laws to this country, in direct violation of our neutral rights, and an encroachment on our sovereignty. this would require no argument. the real question is, said he, shall we govern ourselves or be controlled by the will of others; shall we become tributary or not, shall we submit or be independent? and to the committee he cheerfully left the decision of this question. mr. mumford next addressed the committee of the whole. he observed, that although he had the honor of being one of the committee of foreign relations, who framed the report under consideration, he dissented from that report in some respects. we had now arrived at a momentous crisis in the affairs of our country, and he hoped the house would deliberate with that firmness and moderation which became the representatives of the free and independent people they had the honor to represent on this all interesting concern. however they might differ on smaller points of minor importance, yet when the best interest of the country was at stake, he hoped they would unite in some mode to secure our rights and promote the interests of the united states. the proposition which he had the honor to move a few days ago, was consonant in some degree to the instructions offered by our ministers to great britain and france, offering to remove the embargo in relation to either that should rescind their obnoxious decrees. neither of them having receded, mr. m. said he would continue the embargo in relation to them both. nay, further, he would inflict the severest penalties on any one who should receive a license or voluntarily pay tribute to either of them. he considered them both alike. he wished to see the country placed in a complete posture of defence; but he could not see any good reason why we should not trade with those nations who were willing to receive us on friendly terms, and to trade with us on the principles of reciprocity and mutual interests. this would not compromit the honor of the nation. even admitting that it might possibly lead to war, which he doubted, he was convinced that the citizens of this country would rise _en masse_ in support of that commerce which neither france nor england had any right to interdict. he did presume, with all the zeal of some gentlemen for irritating measures, it was not seriously contemplated to declare war against all mankind; he was for having at least a few friends in case of need. what was our situation now? the president of the united states had told them, after speaking of france and england, that "our relations with the other powers of europe had undergone no material change since the last session." this being the case, our commerce was open with them all except france and great britain and their dependencies. mr. quincy.--mr. chairman, i am not, in general, a friend to abstract legislation. ostentatious declaration of general principles is so often the resort of weakness and of ignorance, it is so frequently the subterfuge of men who are willing to amuse, or who mean to delude the people, that it is with great reluctance i yield to such a course my sanction. if, however, a formal denunciation of a determination to perform one of the most common and undeniable of national duties, be deemed by a majority of this house essential to their character, or to the attainment of public confidence, i am willing to admit that the one now offered is as unexceptionable as any it would be likely to propose. in this view, however, i lay wholly out of sight the report of the committee by which it is accompanied and introduced. the course advocated in that report is, in my opinion, loathsome; the spirit it breathes disgraceful; the temper it is likely to inspire neither calculated to regain the rights we have lost, nor to preserve those which remain to us. it is an established maxim, that in adopting a resolution offered by a committee in this house, no member is pledged to support the reasoning, or made sponsor for the facts which they have seen fit to insert in it. i exercise, therefore, a common right, when i subscribe to the resolution, not on the principles of the committee, but on those which obviously result from its terms, and are the plain meaning of its expressions. i agree to this resolution, because, in my apprehension, it offers a solemn pledge to this nation--a pledge not to be mistaken, and not to be evaded--that the present system of public measures shall be totally abandoned. adopt it, and there is an end of the policy of deserting our rights, under pretence of maintaining them. adopt it, and we can no longer yield, at the beck of haughty belligerents, the right of navigating the ocean, that choice inheritance bequeathed to us by our fathers. adopt it, and there is a termination of that base and abject submission, by which this country has for these eleven months been disgraced, and brought to the brink of ruin. that the natural import and necessary implication of the terms of this resolution are such as i have suggested, will be apparent from a very transient consideration. what do its terms necessarily include? they contain an assertion and a pledge. the assertion is, that the edicts of great britain and france are contrary to our rights, honor, and independence. the pledge is, that we will not submit to them. concerning the assertion contained in this resolution i would say nothing, were it not that i fear those who have so long been in the habit of looking at the orders and decrees of foreign powers as the measure of the rights of our own citizens, and been accustomed, in direct subserviency to them, of prohibiting commerce altogether, might apprehend that there was some lurking danger in such an assertion. they may be assured there can be nothing more harmless. neither great britain nor france ever pretended that those edicts were consistent with american rights; on the contrary, both these nations ground those edicts on the principle of imperious necessity, which admits the injustice done at the very instant of executing the act of oppression. no gentleman need to have any difficulty in screwing his courage up to this assertion. neither of the belligerents will contradict it. mr. turreau and mr. erskine will both of them countersign the declaration to-morrow. with respect to the pledge contained in this resolution, understood according to its true import, it is a glorious one. it opens new prospects. it promises a change in the disposition of this house. it is a solemn assurance to the nation that it will no longer submit to these edicts. it remains for us, therefore, to consider what submission is, and what the pledge not to submit implies. one man submits to the order, decree, or edict of another, when he does that thing which such order, decree, or edict commands; or when he omits to do that thing which such order, decree, or edict prohibits. this, then, is submission. it is to take the will of another as the measure of our rights. it is to yield to his power--to go where he directs, or to refrain from going where he forbids us. if this be submission, then the pledge not to submit implies the reverse of all this. it is a solemn declaration that we will not do that thing which such order, decree, or edict commands, or that we will do what it prohibits. this, then, is freedom. this is honor. this is independence. it consists in taking the nature of things, and not the will of another, as the measure of our rights. what god and nature has offered us we will enjoy, in despite of the commands, regardless of the menaces of iniquitous power. let us apply these correct and undeniable principles to the edicts of great britain and france, and the consequent abandonment of the ocean by the american government. the decrees of france prohibit us from trading with great britain. the orders of great britain prohibit us from trading with france. and what do we? why, in direct subserviency to the edicts of each, we prohibit our citizens from trading with either. we do more; as if unqualified submission was not humiliating enough, we descend to an act of supererogation in servility; we abandon trade altogether; we not only refrain from that particular trade which their respective edicts prescribe, but, lest the ingenuity of our merchants should enable them to evade their operations, to make submission doubly sure, the american government virtually re-enact the edicts of the belligerents, and abandon all the trade which, notwithstanding the practical effects of their edicts, remain to us. the same conclusion will result, if we consider our embargo in relation to the objects of this belligerent policy. france, by her edicts, would compress great britain by destroying her commerce and cutting off her supplies. all the continent of europe, in the hand of bonaparte, is made subservient to this policy. the embargo law of the united states, in its operation, is a union with this continental coalition against british commerce, at the very moment most auspicious to its success. can any thing be more in direct subserviency to the views of the french emperor? if we consider the orders of great britain, the result will be the same. i proceed at present on the supposition of a perfect impartiality in our administration towards both belligerents, so far as relates to the embargo law. great britain had two objects in issuing her orders. first, to excite discontent in the people of the continent, by depriving them of their accustomed colonial supplies. second, to secure to herself that commerce of which she deprived neutrals. our embargo co-operates with the british views in both respects. by our dereliction of the ocean, the continent is much more deprived of the advantages of commerce than it would be possible for the british navy to effect, and by removing our competition, all the commerce of the continent which can be forced is wholly left to be reaped by great britain. the language of each sovereign is in direct conformity to these ideas. napoleon tells the american minister, virtually, that we are very good americans; that, although he will not allow the property he has in his hands to escape him, nor desist from burning and capturing our vessels on every occasion, yet that he is, thus far, satisfied with our co-operation. and what is the language of george the third, when our minister presents to his consideration the embargo laws? is it _le roi s'avisera_? the king will reflect upon them. no; it is the pure language of royal approbation, _le roi le veut_. the king wills it. were you colonies he could expect no more. his subjects as inevitably get that commerce which you abandon as the water will certainly run into the only channel which remains after all the others are obstructed. in whatever point of view we consider these embargo laws in relation to these edicts and decrees, we shall find them co-operating with each belligerent in its policy. in this way, i grant, our conduct may be impartial; but what has become of our american rights to navigate the ocean? they are abandoned, in strict conformity to the decrees of both belligerents. this resolution declares that we shall no longer submit to such degrading humiliations. little as i relish, i will take it, as the harbinger of a new day--the pledge of a new system of measures. wednesday, november . _foreign relations._ mr. richard m. johnson.--i am more than astonished to see this house inundated by every mail with publications, from the east, declaring that we have no cause of complaint against great britain; that we should rescind the proclamation of interdict against british armed vessels; that we should repeal the non-importation law; that the embargo should be taken off as to great britain; that we should go to war with france; that punctilio prevents a settlement of our differences with great britain; inviting the people to violate and disregard the embargo, to put the laws and the constitution at defiance, and rise in rebellion. these considerations induced me to examine this matter, and to prove to every honest american, what we all believe in this place, that the object of one power, is to destroy our neutrality and involve us in the convulsing wars of europe; and the object of the other, a monopoly of our commerce, and the destruction of our freedom and independence. let evidence as conclusive as holy writ put the enemies of this insulted country to shame. we are informed by our minister in london, (mr. monroe,) in a communication dated august, , that a war party of powerful combination and influence existed in great britain, who wanted to extend their ravages to this country; that we could not make calculations upon the justice of great britain; that in her many assumptions of power and principle she would yield but from the absolute necessity. who is this war party? the british navy, to whom we have opened our ports, and extended all the hospitalities of a generous nation; while in the enjoyment of which that very navy waged war against our unoffending citizens. the ship owners, the east and west india merchants, and what cause have they for war? the enterprising citizens of the united states have been their rivals and superiors in a lawful and profitable commerce; and, lastly, political characters of high consideration. these compose this war party. in january, , in an official communication of mr. madison, mr. monroe is charged with the suppression of impressment as his primary object; d, the definition of blockade; d, the reduction of the list of contraband; th, the enlargement of our trade with hostile colonies. the negotiation opens, and what is done? with industry and exertion our minister was unable to bring the british cabinet to any amicable arrangement. lords hawkesbury, harrowby, mulgrave, and mr. fox, succeeded each other, and every attempt to negotiate was in vain. each of them brings expressions of good will and good disposition towards the united states, and a wish for amicable arrangement. but these professions and dispositions evaporate in invitations to the country and the city--in promises and procrastinations. to-day we are amused with a conversation at the foreign office, which animates with a lively hope--to-morrow hope is swallowed up in despair--and the third day announces some new injury. affairs on the continent now call the attention of the british ministry, and with every disposition of good will there must be a pause. in this amicable pause business required that our minister should go to old spain; but upon his return to england, what astonishment seized his mind at the sad spectacle the changing scenes presented. under the old rule of ' , and other interpolations upon public law, our merchant vessels are swept from the bosom of the ocean without notice, by british cruisers, and carried into british ports for condemnation. but why this change? a coalition had been formed in the north against france. british gold effected it. russia and austria had combined against france, and here the hopes of england rested. but we all know her hopes were blasted. this is the reason why the blow was aimed, and your commerce sacrificed. the remonstrances of our minister could not keep pace with new aggressions. this temporizing policy of england, and the destruction of our commerce, buried party spirit in america for the moment, and produced an indignant protest against her conduct from the great commercial cities in the union, in which their lives and their property were pledged to support the government in measures of just retaliation. and on this occasion the merchants of boston requested the president to send a special envoy to england, to give a greater solemnity to our claims of indemnity and future security. the cause of the merchants became a common cause, and the non-importation law was enacted, and mr. pinkney sent as a special minister, agreeably to request. let the commercial interest cease to complain. it is for them principally that we now suffer. these deeply-inflicted wounds upon the commerce of america, ingulfed for a moment the consideration of the primary object of mr. monroe's mission--the impressment of seamen--and it would seem, that when our minister pressed one great subject of complaint, some greater outrage was committed to draw our attention from the former injury. thus the unavailing exertions of our minister for upwards of two years at the court of st. james, eventuated in an extraordinary mission, and the non-importation law; a measure of retaliation, and which rendered us less dependent upon a foreign government for such articles as can be manufactured at home. to bring further evidence of british hostility, let us attend a little to the administration of mr. fox. he came into office about the st of february. on the st of may, information was received in london of the extra mission of mr. pinkney. mr. monroe, therefore, had an opportunity of about four months with mr. fox to settle our differences, without any interruption, not even the ideal one which has been suggested, as giving a temporary stay to the negotiation, viz: the waiting the arrival of mr. pinkney. the united states had a right to expect something like justice from this able minister, because he entertained a sincere desire to conciliate the friendship of this nation by acts of justice. but in this just expectation we were disappointed. the hostility of other members of the cabinet with whom he was associated, was the real cause of difficulty, joined perhaps with his sudden indisposition and death. mr. fox acknowledged our right to the colonial trade; he promised to stop the capture and condemnation of our merchant vessels; but when pressed to answer our complaints in writing, he promised, but broke that promise, and ultimately refused to give any orders with respect to the capture and condemnation of our vessels. thus the golden apple was presented to our grasp, and then snatched forever from our sight. now let the committee attend to the chapter of negotiation, which produced the rejected treaty. first, the subject of blockade is proposed, and a definition demanded. we denied the doctrine of paper breastworks, spurious and illegitimate blockades, to be executed in every sea by the british navy, of which our neutral rights were the victims. such as the blockade of the coast of europe from the elbe to brest, of the elbe, the weiser and ems. the whole coast of old spain, of the dardanelles, and smyrna, and of curaçoa. upon this subject, great britain would yield nothing. . no duty can be laid upon american exports, but great britain imposes a duty of four per cent. upon her exports to the united states, under the name of a convoy duty; by which duty the citizens of the united states pay to great britain an annual amount of $ , , ; but upon this unfriendly discrimination she will yield nothing. . upon the search of merchant vessels she would yield nothing. . upon the colonial trade she imposed new restrictions. she would yield nothing; a trade which produced the united states revenue to the amount of $ , , per annum; and furnished exports from the united states of $ , , annually. . upon the west india trade she would yield nothing, and upon the east india trade she imposed new restrictions. . upon the impressment of seamen, the subject was too delicate; she was fighting for her existence; she would yield nothing. . upon the mutual navigation of the st. lawrence, so important to the northern states, they would yield nothing; but would demand a monopoly of the fur trade, and influence over the indians within our own limits. thus ended the chapter of negotiation. i turn with indignation from this to a new species of injury, involving the events connected with and preceding the president's proclamation interdicting the armed vessels of great britain from our waters. i allude to the conduct of the officers of the british navy, and the evident connivance of the british government. i will only mention three prominent cases: st. the cambrian, and other british cruisers, commanded by captain bradley, who entered the port of new york, and in defiance of the government arrested a merchant vessel, and impressed into the ships of war a number of seamen and passengers, refused to surrender them upon demand, and resisted the officers, served with regular process of law for the purpose of arresting the offenders. d. the case of the leander, capt. whitby, with other british armed vessels, hovering about new york, vexing the trade of that port, arresting a coasting vessel of the united states by firing a cannon, which entered the vessel and killed john pierce. the murder of pierce, a fact so notorious, could not be proved in a sham trial in england, though the most unexceptionable characters are sent as witnesses from the united states; and not even an explanation is made to satisfy this country for the murder of a citizen. call upon the citizens of new york, who saw the body of their slaughtered countryman; ask the mourning relatives of the murdered pierce, whether he was slain or not! but from this tragic scene we must turn to one of a deeper hue. d. the attack upon the chesapeake. this vessel had just left the shores of virginia, leaving the british ship of war, the leopard, enjoying the hospitalities of our laws. the chesapeake was bound to the mediterranean in defence of our rights. one hundred and seventy american tars were on board, who had undertaken this honorable enterprise. unsuspicious of harm, while their rough cheeks were bedewed with tears in parting from their friends and country, their powder-horns empty, rods mislaid, wads too large, guns not primed--all was confusion. in this unhappy moment the messenger of death comes. the unfortunate barron refuses to permit his men to be mustered by any but an american officer. his government had given the command. this is the provocation. the vessel is attacked, and, without resistance, eight are wounded, three are killed, and four taken and carried into british service, one of whom has been hung as a malefactor in nova scotia. it has been said that the goddess of liberty was born of the ocean. at this solemn crisis, when the blood of these american seamen mingled with the waves, then this sea nymph arose indignant from the angry billows, and, like a redeeming spirit, kindled in every bosom indignation and resentment. a nation of patriots have expressed their resentment, and the sound has reached the utmost bounds of the habitable world. let a reasoning world judge whether the president's proclamation was too strong for this state of things, and whether it should be rescinded without atonement. do the wrongs of this nation end with this outrage? no. clouds thicken upon us; our wrongs are still increased; during the sensibility of this nation, and without atonement for the attack upon the chesapeake, on the th october, , a proclamation issues from the british cabinet respecting seafaring persons, enlarging the principles of former encroachments upon the practice of impressment. this proclamation makes it the indispensable duty of her naval officers to enter the unarmed merchant vessels of the united states, and impress as many of the crew as a petty and interested naval officer may without trial point out as british subjects. the pretension is not confined to the search after deserters, but extended to masters, carpenters, and naturalized citizens of the united states--thus extending their municipal laws to our merchant vessels and this country, and denying us the right of making laws upon the subject of naturalization. the partners of british and scotch merchants can cover their property and their merchandise from other nations under the neutral flag of the united states to leghorn, amsterdam, hamburg, &c. but the patriotic irishman or englishman who has sought this protecting asylum of liberty, are not secured by our flag from the ruthless fangs of a british press-gang. and at this very moment our native citizens and adopted brethren, to a considerable number, are doomed to the most intolerable thraldom in the british navy by this degrading practice. there the freedom of our citizens depends upon the mercy of naval officers of great britain; and, upon this subject, every proposition for arrangement is trampled down by these unjust pretensions. information was just received of the execution of the berlin decree, when the papers from every quarter announced the existence of the british orders in council, making a sweeping dash at our rightful commerce. something must be done. the events which been have retraced, all pressed upon us. the treatment of our minister, and his unavailing exertions; the result of the negotiation which gave birth to the rejected treaty; the memorials of the merchants; the outrageous conduct of the british naval officers upon our seaboard; the connivance at their conduct by the british government; the proclamation of october , ; the execution of the berlin decree, and the orders in council. these considerations required the arm of government, and at this inauspicious period, when the clouds which had so long threatened and darkened our political horizon gathered to a thick and horrible tempest, which now seemed about to burst upon our devoted nation, the embargo snatched our property from the storm, and deprived the thunderbolt of its real calamities. the effects of this measure at home and abroad, notwithstanding its inconveniences, will best attest the wisdom of the measure, which will be increased in its efficacy by a total non-importation law. as a measure of coercion upon other nations, i not only have the strongest hopes, but also a rational confidence in it, founded upon the most conclusive evidence. the misrepresentations in this country, the violations of the embargo, and the hope of changing the parties in the united states, or of producing a separation of the states; these miscalculations have destroyed entirely the efficacy of this measure, and been a main cause why great britain has not relaxed in her injustice towards america. and if we can rigidly enforce this system, my confidence is undiminished, my faith strong, that the united states will have reasonable terms offered to them. yet the violators of your laws have been the great cause why the present state of things has been protracted. they are as infamous as the cowboys in the revolution, who embodied themselves to feed our enemies with the only cow of a weeping widow, or a poor soldier who was fighting for his country. the commerce of the united states with the west indies, the continent of europe, and great britain, will present to this committee the evidence upon which this faith is bottomed. the united states have furnished the west indies with the essentials of existence, and also have afforded a market for the colonial produce of those islands. in fact, they cannot live without provisions from the united states in the present state of the world. these islands have been reduced to wretchedness and want already, notwithstanding the violations of the embargo, and flour, we learn, has been as high as $ , $ , $ , $ , and $ per barrel. the vast importance of these possessions alone, to the mother country, might have been sufficient to have produced a settlement of our differences, if other considerations had not prevented. attend to the trade with england and the continent previous to the orders in council. the annual exports of british manufactures to the united states amount to twelve million pounds sterling. in exchange for these manufactured articles, great britain receives to the amount of four million pounds sterling in tobacco, cotton, wheat, and the substantials of life. the eight millions which remain due must be paid in money or bills. to raise this money, the american merchants carry to the continent of europe produce of the united states to the amount of this eight millions, which is sold, and the amount remitted to the merchants in london to pay the debts of our merchants. this trade is now destroyed by the orders in council, and not the embargo--for this very measure has saved our vessels from capture, our merchandise from condemnation, and our seamen from impressment. thursday, december . another member, to wit, thomas moore, from south carolina, appeared, and took his seat in the house. jesse b. thomas, the delegate from the indiana territory, returned to serve in the room of benjamin parke, who hath resigned his seat, appeared, was qualified, and took his seat in the house. tuesday, december . _foreign relations._ the report of the committee on foreign relations being again before the house, and the question still on the first resolution-- mr. gholson said: mr. speaker, were i to yield to my embarrassment on the present occasion, i should not trespass on your indulgence. but when i reflect upon the great national importance of the question now before the house, and upon the high responsibility which its decision must attach to me as one of the representatives of the people; i am impelled, from considerations of duty, to assign to you the reasons by which i am influenced. it has been said, sir, with great truth, that the present is an extraordinary crisis. it seems indeed to have been reserved for the age in which we live, to witness a combination of political events unparalleled in the annals of time. almost the whole civilized world has been within a few years convulsed by wars, battles, and conquests. kingdoms and empires have been revolutionized; and we behold a vast continent assuming a new aspect under a new dynasty. those laws which from time immemorial have prescribed and limited the conduct of nations, are now contemptuously prostrated, innocent neutrality is banished from the ocean, and we hear a grim tyrant asserting himself the sovereign of the seas. thus the most essential part of the globe is attempted to be partitioned between two domineering rival belligerents. sir, it would have been a subject of the sincerest felicitation if our happy country could have been exempt from this universal concussion. but we are fated to share evils in the production of which we have had no participation. in inquiring, mr. speaker, into the causes of these evils and the policy by which we are to be extricated from them, i am conscious of two things--of my utter incompetency to the elucidation of so great a subject, and of the unavoidable necessity of touching upon ground already occupied by gentlemen who have preceded me in this debate. when, sir, i recur to the resolutions reported by the committee of exterior relations, i find one which proposes resistance to the edicts of great britain and france; and another which recommends a system of non-intercourse between the united states and those countries. in hearing the first resolution treated as an abstract proposition, my astonishment has been not a little excited. i have always understood an abstract proposition to be the assertion of some general principle without any specific application. here is a distinct position, with a direct reference to particular orders and decrees. the resolution therefore is itself specific and appropriate, to use the apt terms of the gentleman from connecticut (mr. dana). but before we can determine upon the propriety or impropriety of the resolutions, to me it appears indispensable that we should examine attentively and minutely, not only the situation of this country in relation to france and britain, but also the injuries and aggressions they have committed upon our neutral rights. in doing this i regret extremely that i shall wound the delicate taste and exquisite sensibility of my learned colleague (mr. randolph), who addressed you yesterday. i shall take no pleasure in the retrospection which seems so much to disgust that gentleman; but i do not know how else to find justification for the measures we, i trust, shall pursue, and to expose the profligacy of our enemies. the regular discussion of the first resolution would seem naturally to lead us to a review of the edicts of great britain and france. when we say we will not submit to their edicts; it cannot be amiss, although i acknowledge, sir, the undertaking is an unpleasant one, to inquire into the nature and extent of those edicts; i therefore will endeavor, within as narrow limits as possible, to exhibit to the view of the indignant american, the various wanton aggressions which have been committed by both these powers upon his commercial rights. and, sir, whenever we look for the chief source of our difficulties, we must turn towards great britain. then let us examine the principal items in her account. on th june, , the british government issued an order of council to stop and detain for condemnation, vessels laden with corn, flour, or meal, and bound to france, whose people were then almost in the act of starving, and of course we were deprived of an excellent market for those articles. on th november, , an order issued to stop and detain ships laden with the produce of, or carrying provisions to, the colonies of france. on st march, , she issued a proclamation declaring the united provinces in a state of blockade, and thereby excluding neutral commerce without any actual investment. on th may, , a proclamation declaring the blockade of the coast from the elbe to brest, inclusive. on th january, , an order prohibiting neutral vessels from trading from one port to another of the enemy or his allies. on th may, , a proclamation declaring the blockade of the coast between the elbe, weser, and ems. on th may, , a proclamation declaring the blockade of the dardanelles and smyrna. in october, , a proclamation, ordering british officers to impress from american vessels all such of their crews as might be taken _or mistaken_ for british subjects. on th november, , orders in council were issued interdicting all neutral commerce to any port of europe from which the british flag was excluded; directing that neutrals should trade to such ports only, under british license and with british clearances--that all ships destined before the issuing of the orders to any of the said ports, should go into a british port, and that all vessels having "certificates of origin" should be lawful prize. on th november, , an order in council was issued, declaring void the legal transfer of vessels from the enemies of britain, to neutrals or others. in , various acts of parliament have been passed, carrying the orders of the th of november, , into execution. they impose a specific tax on a variety of articles of american merchandise allowed to be re-exported to the continent of europe, for example, on tobacco, _s._ _d._ sterling per cwt.; on indigo, _s._ per lb.; pork, _s._ _d._ per cwt.; cotton, _d._ per lb.; and on all other articles not enumerated in the act, a duty of forty per cent. is exacted on re-exportation. on th january, , a proclamation issued declaring the blockade of carthagena, cadiz, and st. lucar, and all the ports between the first and last of these places. in the autumn of , in order that plunder might commence from the very moment of the expected repeal of the embargo, the french west india islands were declared in a state of blockade. i will forbear, sir, at this time from commenting on the habitual impressment of american citizens, by great britain; the illegal condemnation of american vessels under what they call the rule of ; the spurious blockades of british commanders, and the consequent spoliations on our commerce. nor will i detain the house by relating the story of captain bradley, commander of the cambrian, who in the face of the city of new york, and in contempt of the civil authority of the united states, dragged your citizens into slavish captivity. the case too of the british ship leander may remain untold--the enormity of that transaction is written in indelible characters, with the blood of our countrymen. the invitation of the british ministry to your merchants to violate the embargo, and the burning of a friendly ship of war (the impetueux) in your own waters, are circumstances too light to be noticed. i feel no disposition, either, to portray the affair of the chesapeake. the ghosts of the murdered are yet unavenged for that horrid and perfidious deed! i will now advert, sir, to the principal injuries committed by france on the neutral commerce of the united states. they consist in the execution of three decrees, to wit: the berlin decree of the st november, , declaring the british islands in a state of blockade, and that no vessel having been at or coming directly from england or her colonies, shall enter at a french port. the milan decree of the th december, , declaring lawful prize every vessel that has suffered the visit of an english vessel, submitted to an english voyage, or paid duty to the english government; and also, every vessel coming from the ports of england and her colonies. the bayonne decree of april, , which subjects, as it is said, and i believe not doubted, all american vessels found upon the high seas since the embargo, to capture and confiscation. here, mr. speaker, i will end the black catalogue of iniquitous outrages and restrictions upon neutral commerce--restrictions which are acknowledged to depend for their support upon no other ground than that of retaliation. whilst i protest against the principle of retaliating upon an enemy through the medium of a friend, yet these orders and decrees have no claim even to that principle. because france and britain both agree that the right of retaliation does not accrue before the neutral has acquiesced in the aggressions of the enemy. we have never acquiesced in the aggressions of either, and therefore, upon their own reasoning, ought not to be liable to the operation of the principle for which they unjustly contend. but, sir, can we quit this subject without looking more particularly at the consequences which result from this series of injuries? in reviewing the conduct of great britain towards this country, we perceive a continuation of encroachments, designed only for the utter destruction of our commerce. this disposition is manifest in every order and proclamation she has issued since the year . if this were not her object, why such a continued system of illegitimate blockades? why so many vexatious restrictions upon neutral trade, tending to destroy competition on our part in the continental markets? i might trace the scheme a little further back, and ask, whence the outrages? the orders of june and november, , which produced jay's treaty? a treaty which i am sorry to say, did not guarantee to us mutual and reciprocal rights, and which was no sooner ratified than violated by british perfidy. but, sir, i will not speak of trivial matters, like these; they are of no consequence when we reflect upon other topics. the pretended blockade of almost every port upon the baltic; the blockade of the eastern and southern coasts of the north sea, unaccompanied by any naval force; the nominal investment of the ports on the south of the british channel, and on the european coast of the mediterranean sea; the occlusion of the black sea, by the blockade of the dardanelles and smyrna, and in fine the blockade of all the places from the straits of gibraltar to the arctic ocean, are acts which, notwithstanding their unexampled enormity in themselves, sink into perfect insignificance, when we consider the base attempts meditated by the orders of november, , and the consequent statutes of parliament, to reduce this country again to a state of colonial slavery! sir, at the very thought of these infamous orders and acts of the british government, i feel emotions of indignation and contempt, to repress which would be dishonorable. what, sir? american vessels to be arrested in a lawful commerce, upon "the highway of nations;" to be forcibly carried into british ports, and there either condemned, or else compelled before they can prosecute their voyage to take british clearances and pay a british tax! and if the owner of the cargo shall be unable to pay the amount of tax, he has the consolation left him of seeing his property burnt! sooner would i see every vessel and every atom of our surplus produce make one general conflagration in our own country. for what purpose was the revolution, in which the blood and treasure of our ancestors were the price of independence, if we are now to be taxed by britain? the highest authority in the union cannot constitutionally tax the exports, which are in part the products of the labor of the american people; yet the british government has presumptuously undertaken to do it. i, sir, for one must protest against any thing like submission to this conduct. but let us see what we should get by submission. so far from gaining, it will be easy to demonstrate, that if we were to submit, we should be only remunerated with disgrace and ruin. wednesday, december . mr. say presented memorials from sundry late officers in the pennsylvania line of the revolutionary army, stating that, from the peculiar circumstances of the memorialists, they have been compelled to dispose of the certificates of pay and commutation granted them for military services rendered to the united states; and praying such relief in the premises as to the wisdom and justice of congress shall seem meet. mr. wharton presented a petition from sundry late officers of the massachusetts, pennsylvania, maryland, virginia, and north carolina lines of the said revolutionary arm, to the like effect. the said memorials and petition were read, and ordered to lie on the table. mr. durell moved that the house do come to the following resolution: _resolved_, that it be the duty of the clerk of this house to furnish the representatives in congress from each state in the union, for the time being, and the delegates from each of the territories thereof, with one copy of every public document, including the laws and journals printed by order of the house, to be by them transmitted to the principal seminary of learning in each state and territory, respectively. the resolution was read, and, on motion of mr. bacon, ordered to lie on the table. _foreign relations._ the house then resumed the consideration of the first member of the first resolution reported on thursday last, from the committee of the whole, which was depending yesterday at the time of adjournment, in the words following, to wit: "_resolved_, that the united states cannot, without a sacrifice of their rights, honor, and independence, submit to the late edicts of great britain." mr. g. w. campbell concluded his observations of yesterday, as given entire in preceding pages. mr. quincy.--mr. speaker, i offer myself to the view of this house with a very sensible embarrassment, in attempting to follow the honorable gentleman from tennessee (mr. campbell)--a gentleman who holds so distinguished a station on this floor, through thy blessing, mr. speaker, on his talents and industry. i place myself with much reluctance in competition with this, our great political �neas, an illustrious leader of antiquity, whom, in his present relations, and in his present objects, the gentleman from tennessee not a little resembles; since, in order to evade the ruin impending over our cities--taking my honorable colleague (mr. bacon) by one hand, and the honorable gentleman from maryland (mr. montgomery) by the other (little iülus and wife creusa)--he is posting away into the woods with father anchises and all the household gods. when i had the honor of addressing this house a few days ago, i touched this famous report of our committee of foreign relations perhaps a little too carelessly; perhaps i handled it a little too roughly, considering its tender age, and the manifest delicacy of its constitution. but, sir, i had no idea of affecting very exquisitely the sensibilities of any gentleman. i thought that this was a common report of one of our ordinary committees, which i had a right to canvass or to slight, to applaud or to censure, without raising any extraordinary concern, either here or elsewhere. but, from the general excitement which my inconsiderate treatment of this subject occasions, i fear that i have been mistaken. this can be no mortal fabric, mr. speaker. this must be that image which fell down from jupiter, present or future. surely, nothing but a being of celestial origin would raise such a tumult in minds tempered like those which lead the destinies of this house. sir, i thought that this report had been a common piece of wood--_inutile lignum_--just such a piece of wood as any day-laborer might have hewed out in an hour, had he health and a hatchet. but it seems that our honorable chairman of the committee of foreign relations, _maluit esse deum_. well, sir, i have no objections. if the workmen will, a god it shall be. i only wish, that when gentlemen bring their sacred things upon this floor, that they would blow a trumpet before them, as the heathens do, on such occasions, to the end that all true believers may prepare themselves to adore and tremble, and that all unbelievers may turn aside, and not disturb their devotions. i assure gentlemen that i meant to commit no sacrilege. i had no intention, sir, of canvassing very strictly this report. i supposed, that when it had been published and circulated, it had answered all the purposes of its authors, and i felt no disposition to interfere with them. but the house is my witness that i am compelled, by the clamor raised on all sides by the friends of the administration, to descend to particulars, and to examine it somewhat minutely. my honorable colleague (mr. bacon) was pleased the other day to assert:----sir, in referring to his observations, on a former occasion, i beg the house not to imagine that i am about to follow him. no, sir; i will neither follow nor imitate him. i hang upon no man's skirts; i run barking at no man's heel. i canvass principles and measures solely with a view to the great interests of my country. the idea of personal victory is lost in the total absorption of sense and mind in the impending consequences. i say he was pleased to assert that i had dealt in general allegations against this report, without pointing out any particular objection. and the honorable chairman (mr. campbell) has reiterated the charge. both have treated this alleged omission with no little asperity. yet, sir, it is very remarkable, that, so far from dealing in general allegations, i explicitly stated my objections. the alternatives presented by the report--war or suspension of our rights, and the recommendation of the latter, rather than take the risk of the former, i expressly censured. i went further. i compared these alternatives with an extract from an address made by the first continental congress to the inhabitants of great britain, and attempted to show, by way of contrast, what i thought the disgraceful spirit of the report. yet, these gentlemen complain that i dealt in general allegations. before i close, sir, they will have, i hope, no reason to repeat such objections. i trust i shall be particular, to their content. before entering upon an examination of this report, it may be useful to recollect how it originated. by the third section of the second article of the constitution, it is declared that the president of the united states "shall, from time to time, give to congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient." it is, then, the duty of the president to recommend such measures as in his judgment congress ought to adopt. a great crisis is impending over our country. it is a time of alarm, and peril, and distress. how has the president performed this constitutional duty? why, after recapitulating, in a formal message, our dangers and his trials, he expresses his confidence that we shall, "with an unerring regard to the essential rights and interests of the nation, weigh and compare the painful alternatives out of which a choice is to be made," and that "the alternative chosen will be maintained with fortitude and patriotism." in this way our chief magistrate performs his duty. a storm is approaching; the captain calls his choice hands upon deck; leaves the rudder swinging, and sets the crew to scuffle about _alternatives_! this message, pregnant with nondescript alternatives, is received by this house. and what do we? why, constitute a great committee of foreign relations, and, lest they should not have their attention completely occupied by the pressing exigencies of those with france and great britain, they are endowed with the whole mass--british, spanish, and french; barbary powers and indian neighbors. and what does this committee do? why, after seven days' solemn conclave, they present to this house an illustrious report, loaded with alternatives--nothing but alternatives. the cold meat of the palace is hashed and served up to us, piping hot, from our committee room. in considering this report, i shall pay no attention to either its beginning or its conclusion. the former consists of shavings from old documents, and the latter of birdlime for new converts. the twelfth page is the heart of this report; that i mean to canvass. and i do assert, that there is not one of all the principal positions contained in it which is true, in the sense and to the extent assumed by the committee. let us examine each, separately: "your committee can perceive no other alternative but abject and degrading submission, war with both nations, or a continuance and enforcement of the present suspension of our commerce." here is a tri-forked alternative. let us consider each branch, and see if either be true, in the sense assumed by the committee. the first--"abject and degrading submission"--takes two things for granted: that trading, pending the edicts of france and great britain, is submission; and next that it is submission, in its nature, abject and degrading. neither is true. it is not submission to trade, pending those edicts, because they do not command you to trade; they command you _not_ to trade. when you refuse to trade, you submit; not when you carry on that trade, as far as you can, which they prohibit. again, it is not true that such trading is abject and disgraceful, and that, too, upon the principles avowed by the advocates of this report. trading, while these edicts are suspended over our commerce, is submission, say they, because we have not physical force to resist the power of these belligerents; of course, if we trade, we must submit to these restrictions, not having power to evade or break through them. now, admit, for the sake of argument, (what however in fact i deny,) that the belligerents have the power to carry into effect their decrees so perfectly; that, by reason of the orders of great britain, we are physically disabled from going to france; and that, by the edicts of france, we are in like manner disabled from going to great britain. if such be our case, in relation to these powers, the question is, whether submitting to exercise all the trade which remains to us, notwithstanding these edicts, is "abject and degrading." in the first place, i observe, that submission is not, to beings constituted as we are, always "abject and degrading." we submit to the decrees of providence--to the laws of our nature. absolute weakness submits to absolute power; and there is nothing in such submission shameful or degrading. it is no dishonor for finite not to contend with infinite. there is no loss of reputation if creatures, such as men, perform not impossibilities. if then it be true, in the sense asserted by some of the advocates of this report, that it is physically impossible for us to trade with france and great britain and their dependencies, by reason of these edicts, still there is nothing "abject or degrading" in carrying on such trade as these edicts leave open to us, let it be never so small or so trifling; which, however, it might be easily shown, as it has been, that it is neither the one nor the other. sir, in this point of view, it is no more disgraceful for us to trade to sweden, to china, to the northwest coast, or to spain and her dependencies--not one of which countries is now included in those edicts--than it is disgraceful for us to walk, because we are unable to fly; no more than it is shameful for man to use and enjoy the surface of this globe, because he has not at his command the whole circle of nature, and cannot range at will over all the glorious spheres which constitute the universe. the gentleman from tennessee (mr. campbell) called upon us just now to tell him what was disgraceful submission, if carrying on commerce under these restrictions was not such submission. i will tell that gentleman. that submission is "abject and disgraceful" which yields to the decrees of frail and feeble power, as though they were irresistible; which takes counsel of fear, and weighs not our comparative force; which abandons the whole, at a summons to deliver up a part; which makes the will of others the measure of rights, which god and nature not only have constituted eternal and unalienable, but have also endued us with ample means to maintain. my argument on this clause of the report of the committee may be presented in this form: either the united states have or they have not physical ability to carry on commerce in defiance of the edicts of both or of either of these nations. if we have not physical ability to carry on the trade which they prohibit, then it is no disgrace to exercise that commerce which these irresistible decrees permit. if we have such physical ability, then, to the degree in which we abandon that commerce which we have power to carry on, is our submission "abject and disgraceful." it is yielding without a struggle; it is sacrificing our rights, not because we have not force, but because we have not spirit to maintain them. it is in this point of view that i am disgusted with this report. it abjures what it recommends; it declaims, in heroics, against submission, and proposes, in creeping prose, a tame and servile subserviency. it cannot be concealed, let gentlemen try as much as they will, that we can trade, not only with one, but with both these belligerents, notwithstanding these restrictive decrees. the risk to great britain against french capture scarcely amounts to two per cent.; that to france against great britain is unquestionably much greater. but, what is that to us? it is not our fault, if the power of britain on the ocean is superior to that of bonaparte. it is equal and exact justice between both nations for us to trade with both, as far as it is in our power. great as the power of britain is on the ocean, the enterprise and intrepidity of our merchants are more than a match for it. they will get your products to the continent in spite of her navy. but suppose they do not; suppose they fail, and are captured in the attempt; what is that to us? after we have given them full notice of all their dangers, and perfect warning, either of our inability or of our determination not to protect them, if they take the risk, it is at their peril. and, upon whom does the loss fall? as it does now, through the operation of your embargo, on the planter, on the farmer, on the mechanic, on the day-laborer? no, sir; on the insurer--on the capitalist--on those who in the full exercise of their intelligence, apprised of all the circumstances, are willing to take the hazard for the sake of the profit. i will illustrate my general idea by a supposition. there are two avenues to the ocean from the harbor of new york--by the narrows, and through long island sound. suppose the fleets, both of france and great britain, should block up the narrows, so that to pass them would be physically impossible, in the relative state of our naval force. will gentlemen seriously contend that there would be any thing "abject or disgraceful," if the people of new york should submit to carry on their trade through the sound? would the remedy for this interference with our rights be abandoning the ocean altogether? again: suppose, that instead of both nations blockading the same point, each should station its force at a different one--france at the mouth of the sound, britain at the narrows. in such case, would staying at home, and refusing any more to go upon the sea, be an exercise of independence in the citizens of new york? great philosophers may call it "dignified retirement," if they will. i call it, and i am mistaken if the people would not call it, "base and abject submission." sir, what in such a case would be true honor? why, to consider well which adversary is the weakest, and cut our way to our rights through the path which he obstructs. having removed the smaller impediment, we should return with courage, strengthened by trial and animated by success, to the relief of our rights, from the pressure of the strongest assailant. but, all this is war; and war is never to be incurred. if this be the national principle, avow it; tell your merchants you will not protect them; but, for heaven's sake, do not deny them the power of relieving their own and the nation's burdens, by the exercise of their own ingenuity. sir, impassable as the barriers offered by these edicts are in the estimation of members on this floor, the merchants abroad do not estimate them as insurmountable. their anxiety to risk their property, in defiance of them, is full evidence of this. the great danger to mercantile ingenuity is internal envy--the corrosion of weakness or prejudice. its external hazard is ever infinitely smaller. that practical intelligence which this class of men possesses, beyond any other in the community, excited by self-interest--the strongest of human passions--is too elastic to be confined by the limits of exterior human powers, however great or uncommon. build a chinese wall, and the wit of your merchants, if permitted freely to operate, will break through it or overleap it, or undercreep it. ------------"mille adde catenas effugiet tamen, hæc sceleratus vincula proteus." the second branch of the alternatives under consideration is equally deceptive--"war with both nations." can this ever be an alternative? did you ever read in history, can you conceive in fancy, a war of two nations, each of whom is at war with the other, without a union with one against the other immediately resulting? it cannot exist in nature. the very idea is absurd. it never can be an alternative, whether we shall find two nations each hostile to the other. but it may be, and if we are to fight at all, it is a very serious question, which of the two we are to select as an adversary. as to the third branch of these celebrated alternatives, "a continuance and enforcement of the present system of commerce," i need not spend time to show that this does not include all the alternatives which exist under this head--since the committee immediately admit, that there does exist another alternative, "partial repeal," about which they proceed to reason. the report proceeds. "the first" (abject and degrading submission) "cannot require any discussion." certainly not. submission of that quality which the committee assume, and with the epithets of which they choose to invest it, can never require discussion at any time. but, whether trading under these orders and decrees be such submission, whether we are not competent to resist them in part, if not in whole, without a total abandonment of the exercise of all our maritime rights, the comparative effects of the edicts of each upon our commerce and the means we possess to influence or control either, are all fair and proper subjects of discussion; some of which the committee have wholly neglected and none of which have they examined, as the house had a right to expect. the committee proceed "to dissipate the illusion" that there is any "middle course," and to reassert the position before examined, that "there is no other alternative than war with both nations, or a continuance of the present system." this position they undertake to support by two assertions. first, that "war with one of the belligerents only, would be submission to the edicts and will of the other." second, that "repeal in whole or in part of the embargo, must necessarily be war or submission." as to the first assertion, it is a miserable fallacy, confounding coincidence of interest with subjection of will; things in their nature palpably distinct. a man may do what another wills, nay, what he commands, and not act in submission to his will, or in obedience to his command. our interest or duty may coincide with the line of conduct another presumes to prescribe. shall we vindicate our independence at the expense of our social or moral obligations? i exemplify my idea in this way. two bullies beset your door, from which there are but two avenues. one of them forbids you to go by the left, the other forbids you to go by the right avenue. each is willing that you should pass by the way which he permits. in such case, what will you do? will you keep house forever, rather than make choice of the path through which you will resume your external rights? you cannot go both ways at once, you must make your election. yet, in making such election, you must necessarily coincide with the wishes and act according to the commands of one of the bullies. yet who, before this committee, ever thought an election of one of two inevitable courses, made under such circumstances, "abject and degrading submission" to the will of either of the assailants? the second assertion, that "repeal in whole or in part of the embargo must necessarily be war or submission," the committee proceed to maintain by several subsidiary assertions. first--"a general repeal without arming would be submission to both nations." so far from this being true, the reverse is the fact; it would be submission to neither. great britain does not say, "you shall trade with me." france does not say, "you shall trade with me." if this was the language of their edicts, there might be some color for the assertion of the committee, that if we trade with either we submit. the edicts of each declare you shall not trade with my adversary. our servile knee-crooking embargo says, "you shall, therefore, not trade." can any submission be more palpable, more "abject, more disgraceful?" a general repeal without arming, would be only an exercise of our natural rights, under the protection of our mercantile ingenuity, and not under that of physical power. whether our merchants shall arm or not, is a question of political expediency and of relative force. it may be very true that we can fight our way to neither country, and yet it may be also very true, that we may carry on a very important commerce with both. the strength of the national arm may not be equal to contend with either, and yet the wit of our merchants may be over-match for the edicts of all. the question of arming or not arming, has reference only to the mode in which we shall best enjoy our rights, and not at all to the quality of the act of trading during these edicts. to exercise commerce is our absolute right. if we arm, we may possibly extend the field beyond that which mere ingenuity would open to us. whether the extension thus acquired be worthy of the risk and expense, is a fair question. but, decide it either way, how is trading as far as we have ability, made less abject than not trading at all? i come to the second subsidiary assertion. "a general repeal and arming of merchant vessels, would be war with both, and war of the worst kind, suffering the enemies to plunder us, without retaliation upon them." i have before exposed the absurdity of a war with two belligerents, each hostile to the other. it cannot be true, therefore, that "a general repeal and arming our merchant vessels," would be such a war. neither if war resulted, would it be "war of the worst kind." in my humble apprehension, a war, in which our enemies are permitted to plunder us, and our merchants not permitted to defend their property, is somewhat worse than a war like this; in which, with arms in their hands, our brave seamen might sometimes prove too strong for their piratical assailants. by the whole amount of property which we might be able to preserve by these means, would such a war be better than that in which we are now engaged. for the committee assure us, that the aggressions to which we are subject, "are to all intents and purposes a maritime war, waged with both nations against the united states." the last assertion of the committee, in this most masterly page is, that "a partial repeal must from the situation of europe, necessarily be actual submission to one of the aggressors, and war with the other." in the name of common sense, how can this be true? the trade to sweden, to spain, to china, is not now affected by the orders or decrees of either belligerent. how is it submission, then, to these orders for us to trade to gottenburg, when neither france nor britain command, nor prohibit it? of what consequence is it to us what way the gottenburg merchant disposes of our products, after he has paid us our price? i am not about to deny that a trade to gottenburg would defeat the purpose of coercing great britain, through the want of our supplies, but i reason on the report upon its avowed principles. if gentlemen adhere to their system, as a means of coercion, let the administration avow it as such, and support the system, by arguments, such as their friends use every day on this floor. let them avow, as those friends do, that this is our mode of hostility against great britain. that it is better than "ball and gunpowder." let them show that the means are adequate to the end; let them exhibit to us, beyond the term of all this suffering, a happy salvation, and a glorious victory, and the people may then submit to it, even without murmur. but while the administration support their system only as a municipal regulation, as a means of safety and preservation, those who canvass their principle are not called upon to contest with them on ground, which not only they do not take, but which, officially, they disavow. as partial repeal would not be submission to either, so, also, it would not be war with either. a trade to sweden would not be war with great britain; that nation is her ally, and she permits it. nor with france, though sweden is her enemy, she does not prohibit it. ah! but say the committee, "a measure which would supply exclusively one of the belligerents, would be war with the other." this is the state secret; this is the master-key to the whole policy. you must not only do what the letter of these orders prohibits, but you must not sin against the spirit of them. the great purpose is, to prevent your product from getting to our enemy, and to effect this you must not only so act as to obey the terms of the decrees, but keeping the great purpose of them always in sight, you must extend their construction to cases which they cannot, by any rule of reason, be made to include. sir, i have done with this report. i would not have submitted to the task of canvassing it, if gentlemen had not thrown the gauntlet with the air of sturdy defiance. i willingly leave to this house and the nation to decide whether the position i took in the commencement of my argument is not maintained; that there is not one of the principal positions contained in the th page, the heart of this report, which is true, in the sense and to the extent assumed by the committee. it was under these general impressions that i used the word "loathsome," which has so often been repeated. sir, it may not have been a well chosen word. it was that which happened to come to hand first. i meant to express my disgust at what appeared to me a mass of bold assumptions, and of illy-cemented sophisms. i said, also, that "the spirit which it breathed was disgraceful" sir, i meant no reflection upon the committee. honest men and wise men may mistake the character of the spirit which they recommend, or by which they are actuated. when called upon to reason concerning that which, by adoption, is to become identified with the national character, i am bound to speak of it as it appears to my vision. i may be mistaken. yet, i ask the question: is not the spirit which it breathes disgraceful? is it not disgraceful to abandon the exercise of all our commercial rights, because our rivals interfere with a part; not only to refrain from exercising that trade which they prohibit, but for fear of giving offence, to decline that which they permit? is it not disgraceful, after inflammatory recapitulation of insults, and plunderings, and burnings, and confiscations, and murders, and actual war made upon us, to talk of nothing but alternatives, of general declarations, of still longer suspension of our rights, and retreating farther out of "harm's way?" if this course be adopted by my country, i hope i am in error concerning its real character. but to my sense, this whole report is nothing else than a recommendation to us of the abandonment of our essential rights and apologies for doing it. before i sit down, i feel myself compelled to notice some observations which have been made in different quarters of this house on the remarks which, at an early stage of this debate, i had the honor of submitting to its consideration. my honorable colleague (mr. bacon) was pleased to represent me as appealing to the people over the heads of the whole government, against the authority of a law which had not only the sanction of all the legislative branches of the government, but also of the judiciary. sir, i made no such appeal. i did not so much as threaten it. i admitted, expressly, the binding authority of the law. but i claim a right, which i ever will claim, and ever will exercise, to urge, on this floor, my opinion of the unconstitutionality of a law, and my reasons for that opinion, as a valid ground for its repeal. sir, i will not only do this, i will do more. if a law be, in my apprehension, dangerous in its principles, ruinous in its consequences, above all if it be unconstitutional, i will not fail in every fair and honorable way to awaken the people to a sense of their peril; and to quicken them, by the exercise of their constitutional privileges, to vindicate themselves and their posterity from ruin. my honorable colleague (mr. bacon) was also pleased to refer to me, "as a man of divisions and distinctions, waging war with adverbs, and dealing in figures." sir, i am sorry that my honorable colleague should stoop "from his pride of place," at such humble game as my poor style presents to him. certainly, mr. speaker, i cannot but confess that, "deeming high" of the station which i hold; standing, as it were, in the awful presence of an assembled people, i am more than ordinarily anxious, on all occasions, to select the best thoughts in my narrow storehouse, and to adapt to them the most appropriate dress in my intellectual wardrobe. i know not whether, on this account, i am justly obnoxious to the asperity of my honorable colleague. but, on the subject of figures, sir, this i know, and cannot refrain from assuring this house that, as on the one hand, i shall, to the extent of my humble talents, always be ambitious, and never cease striving to make a decent figure on this floor; so, on the other, i never can be ambitious, but, on the contrary, shall ever strive chiefly to avoid cutting a figure like my honorable colleague. the gentleman from georgia, (mr. troup,) the other day, told this house that, if commerce were permitted, such was the state of our foreign relations, none but bankrupts would carry on trade. sir, the honorable gentleman has not attained correct information in this particular. i do not believe that i state any thing above the real fact, when i say that, on the day this legislature assembled, one hundred vessels, at least, were lying in the different ports and harbors of new england loaded, riding at single anchor, ready and anxious for nothing so much as for your leave to depart. certainly, this does not look much like any doubt that a field of advantageous commerce would open, if you would unbar the door to your citizens. that this was the case in massachusetts i know. before i left that part of the country, i had several applications from men, who stated that they had property in such situations, and soliciting me to give them the earliest information of your probable policy. the men so applying, i can assure the house, were no bankrupts; but intelligent merchants, shrewd to perceive their true interests; keen to pursue them. the same honorable gentleman was also pleased to speak of "a paltry trade in potash and codfish," and to refer to me as the representative of men who raised "beef and pork, and butter and cheese, and potatoes and cabbages." well, sir, i confess the fact. i am the representative, in part, of men, the products of whose industry are beef and pork, and butter and cheese, and potatoes and cabbages. and let me tell that honorable gentleman, that i would not yield the honor of representing such men, to be the representative of all the growers of cotton and rice, and tobacco and indigo, in the whole world. sir, the men whom i represent, not only raise those humble articles, but they do it with the labor of their own hands, with the sweat of their own brows. and by this, their habitual mode of hardy industry, they acquire a vigor of nerve, a strength of muscle, and spirit of intelligence, somewhat characteristic. and let me say to that honorable gentleman, that the men of whom i speak will not, at his call, nor at the invitation of any man or set of men from his quarter of the union, undertake to "drive one another into the ocean." but, on the contrary, whenever they once realize that their rights are invaded, they will unite, like a band of brothers, and drive their enemies there. the honorable gentleman from kentucky, (mr. johnson,) speaking of the embargo, said, that this was the kind of conflict which our fathers waged; and my honorable colleague (mr. bacon) made a poor attempt to confound this policy with the non-intercourse and non-importation agreement of and . sir, nothing can be more dissimilar. the non-intercourse and non-importation agreement of that period, so far from destroying commerce, fostered and encouraged it. the trade with great britain was indeed voluntarily obstructed, but the enterprise of our merchants found a new incentive in the commerce with all the other nations of the globe, which succeeded immediately on our escape from the monopoly of the mother country. our navigation was never suspended. the field of commerce at that period, so far from being blasted by pestiferous regulations, was extended by the effect of the restrictions adopted. but let us grant all that they assert. admit, for the sake of argument, that the embargo, which restrains us now from communication with all the world, is precisely synonymous with that non-intercourse and non-importation which restrained us then from great britain. suppose the war, which we now wage with that nation, is in every respect the same as that which our fathers waged with her in and . have we from the effects of their trial any lively hope of success in our present attempt? did our fathers either effect a change in her injurious policy or prevent a war by non-intercourse? sir, they did neither the one nor the other. her policy was never changed until she had been beaten on our soil, in an eight years' war. our fathers never relied upon non-intercourse and non-importation, as measures of hostile coercion. they placed their dependence upon them solely as means of pacific influence among the people of that nation. the relation in which this country stood at that time with regard to great britain, gave a weight and a potency to those measures then, which in our present relation to her, we can neither hope nor imagine possible. at that time we were her colonies, a part of her family. our prosperity was essentially hers. so it was avowed in this country. so it was admitted in great britain. every refusal of intercourse which had a tendency to show the importance of these then colonies to the parent country, of the part to the whole, was a natural and a wise means of giving weight to our remonstrances. we pretended not to control, but to influence, by making her feel our importance. in this attempt we excited no national pride on the other side of the atlantic. our success was no national degradation, for the more we developed our resources and relative weight, the more we discovered the strength and resources of the british power. we were the component parts of it. all the measures of the colonies, antecedent to the declaration of independence, had this principle for their basis. as such, non-importation and non-intercourse were adopted in this country. as such, they met the co-operation of the patriots of great britain, who deemed themselves deviating from none of their national duties, when they avowed themselves the allies of american patriots, to drive, through the influence of the loss of our trade, the ministry from their places, or their measures. those patriots did co-operate with our fathers, and that openly, in exciting discontent, under the effect of our non-intercourse agreements. in so doing, they failed in none of their obligations to their sovereign. in no nation can it ever be a failure of duty to maintain that the safety of the whole depends on preserving its due weight to every part. yet, notwithstanding the natural and little suspicious use of these instruments of influence, notwithstanding the zeal of the american people coincided with the views of congress, and a mighty party existed in great britain openly leagued, with our fathers, to give weight and effect to their measures, they did not effect the purposes for which they were put into operation. the british policy was not abandoned. war was not prevented. how then can any encouragement be drawn from that precedent, to support us under the privations of the present system of commercial suspension? can any nation admit that the trade of another is so important to her welfare, as that on its being withdrawn, any obnoxious policy must be abandoned, without at the same time admitting that she is no longer independent? sir, i could indeed wish that it were in our power to regulate not only great britain, but the whole world, by opening or closing our ports. it would be a glorious thing for our country to possess such a mighty weapon of defence. but, acting in a public capacity, with the high responsibilities resulting from the great interests dependant upon my decision, i cannot yield to the wishes of lovesick patriots, or the visions of teeming enthusiasts; i must see the adequacy of means to their ends. i must see, not merely that it is very desirable that great britain should be brought to our feet, by this embargo, but that there is some likelihood of such a consequence to the measure, before i can concur in that universal distress and ruin which, if much longer continued, will inevitably result from it. since, then, every dictate of sense and reflection convinces me of the utter futility of this system, as a means of coercion, on great britain, i shall not hesitate to urge its abandonment. no, sir, not even although, like others, i should be assailed by all the terrors of the outcry of british influence. really, mr. speaker, i know not how to express the shame and disgust with which i am filled, when i hear language of this kind cast out upon this floor, and thrown in the faces of men, standing justly on no mean height in the confidence of their countrymen. sir, i did, indeed, know that such vulgar aspersions were circulating among the lower passions of our nature. i knew that such vile substances were ever tempering between the paws of some printer's devil. i knew that foul exhalations like these daily rose in our cities, and crept along the ground, just as high as the spirits of lampblack and saline oil could elevate; falling, soon, by native baseness, into oblivion, in the jakes. i knew, too, that this species of party insinuation was a mighty engine, in this quarter of the country, on an election day, played off from the top of a stump, or the top of a hogshead, while the gin circulated, while barbecue was roasting; in those happy, fraternal associations and consociations, when those who speak, utter without responsibility, and those who listen, hear without scrutiny. but little did i think, that such odious shapes would dare to obtrude themselves, on this national floor, among honorable men;--the select representatives, the confidential agents of a wise, a thoughtful and a virtuous people. i want language to express my contempt and indignation at the sight. so far as respects the attempt which has been made to cast such aspersions on that part of the country which i have the honor to represent, i beg this honorable house to understand, that so long as they, who circulate such insinuations, deal only in generals and touch not particulars, they may gain among the ignorant and the stupid a vacant and a staring audience. but when once these suggestions are brought to bear upon those individuals who in new england have naturally the confidence of their countrymen, there is no power in these calumnies. the men who now lead the influences of that country, and in whose councils the people on the day when the tempest shall come will seek refuge, are men whose stake is in the soil, whose interests are identified with those of the mass of their brethren, whose private lives and public sacrifices present a never-failing antidote to the poison of malicious invectives. on such men, sir, party spirit may indeed cast its odious filth, but there is a polish in their virtues to which no such slime can adhere. they are owners of the soil; real yeomanry; many of them men who led in the councils of our country in the dark day which preceded the national independence; many of them men who, like my honorable friend from connecticut on my left, (mr. tallmadge,) stood foremost on the perilous edge of battle; making their breasts in the day of danger a bulwark for their country. true it is, mr. speaker, there is another and a much more numerous class, composed of such as through defect of age can claim no share in the glories of our revolution; such as have not yet been blest with the happy opportunity of "playing the man" for their country; generous sons of illustrious sires; men, not to be deterred from fulfilling the high obligations they owe to this people by the sight of foul and offensive weapons. men who, with little experience of their own to boast, will fly to the tombs of their fathers, and questioning, concerning their duties, the spirit which hovers there, will no more shrink from maintaining their native rights, through fear of the sharpness of malevolent tongues, than they will, if put to the trial, shrink from defending them through fear of the sharpness of their enemies' swords. when mr. quincy had concluded, the house adjourned without taking a question. thursday, december . on motion of mr. newton, that the unfinished business of yesterday, depending at the time of adjournment, do lie on the table; and that the house do now resolve itself into a committee of the whole on the amendatory bill authorizing the president to employ an additional number of revenue cutters: and the question being taken thereupon, it was resolved in the affirmative. the house accordingly resolved itself into the said committee; and, after some time spent therein, the bill was reported without amendment, and ordered to be engrossed, and read the third time to-day. _foreign relations._ the house then resumed the consideration of the first member of the first resolution reported on thursday last from the committee of the whole, which was depending yesterday at the time of adjournment, in the words following, to wit: "_resolved_, that the united states cannot, without a sacrifice of their rights, honor, and independence, submit to the late edicts of great britain." mr. key said that it was with much regret that he had seen the course which the debate on the first resolution had taken; as the propositions contained in that resolution met his entire and full approbation, he could have wished that instead of the discussion which had taken place, a silent, dignified vote, the spontaneous effect of feeling and judgment, had at once passed. it would have been a better course, would have had a better effect, and kept the american mind from the impression which the protraction of the discussion must have occasioned, when taken in connection with the subject. a view however of the embargo had been gone into in respect to its past effects at home, and its probable future effects at home and abroad. as that course had been adopted, he said he should find an apology for the time which he should occupy, in the present eventful crisis, and the interest it universally excited. i did myself believe (said mr. key) that the first resolution was an abstract proposition, and i still think so, although gentlemen consider it special; but surely a special proposition may be an abstract one. that which i consider an abstract proposition, is one out of which no future legislative proceedings can grow; but i agree that the crisis well warrants an expression of the public voice. i shall take up the report and resolutions as a system, not with a view to condemn the report at all, for i take it as gentlemen wish it to be considered. i understand the gentleman from massachusetts (mr. bacon) as stating that the committee on our foreign relations had said nothing of the embargo. it was not necessary, mr. speaker, that they should, for the embargo law continues in operation until repealed. but surely it must be recollected that the committee on foreign relations in their resolutions seemed to consider the system which they recommend, as including a continuance of the embargo; and i trust i meet the committee on fair and firm ground, when i consider their assent to be implied to the continuance of the embargo, and that it is their opinion that the measures which they recommend, united with the embargo, form an efficient system proper for the american people to adopt at this time. i shall necessarily therefore endeavor to answer gentlemen who have considered the embargo as a wise measure for the american people; that they are competent to bear it; and that it will, if guarded more sedulously, yet work out the political salvation of our land. that the embargo is a measure severely felt by our country at large, and by some portions of it to a very eminent degree, cannot be denied. i did not expect to hear its effects contradicted; but they have been in some measure softened by the honorable chairman of the committee. i think the pressure of this measure great, and in some places requiring all the exertion of patriotism to support it. and as a proof of it, the members on this floor from different parts of the union have only contended which section suffered most. a member from massachusetts, (mr. quincy,) because he conceives that thirty millions of dollars have been lost to the eastern country by the measure, hence concludes that the eastern country suffers most. the gentlemen from the southern country say that they raise seventy millions of pounds of cotton, of which but ten millions are consumed at home, and the whole of the residue remains on hand; and that having seven-tenths of their produce unsold, conceive that they most sensibly feel the weight of this affliction in their country. a member from virginia (mr. randolph) will not yield the palm of oppression to either. "i live (said the gentleman) in the centre of the tobacco country, whether you draw the line from east to west, or from north to south. we are not less pressed than others, for we have no vent for this article so obnoxious in itself, but which the taste of mankind has rendered necessary." now, with great deference to all these gentlemen, i say that my country suffers most. the southern country possesses its staples, which but remain on hand; their value only diminished by the non-export. tobacco and cotton may be preserved without material injury for a length of time. we know that at the close of the revolutionary war tobacco bore a greater price than previous to its commencement, and amply remunerated the holders. but i represent an agricultural country. what can resuscitate wheat devoured by the fly? what restore flour soured in the barrel? our produce perishes, the subject is destroyed. so far therefore as i represent an extensive and fertile farming district, i will not yield the palm of pressure to the cotton and tobacco country. so great has been the feeling of the people that it has wrought a wondrous change in the state which i have the honor to represent; not in men who are either deluded or deceived, as intimated by the gentleman from tennessee, (mr. campbell,) but men who, by the pressure of the embargo itself, have been driven to reflection, and by reflection removed the film from their eyes, and thereby seen their true interests more distinctly. in the course of the last winter, the legislature of the state of maryland, believing that the orders in council justified the embargo, and that it was a wise measure, approved of it. succeeding elections have taken place, and the present house of representatives tells you that it is most ruinous and oppressive. such certainly are its effects in the state of maryland; and i should illy represent my own district, if i did not so declare. gentlemen will say that i should rather be pleased with the change than regret it; but, so help me god, mr. speaker, i am much less anxious what description of citizens administers the affairs of the country, than that they should be well administered; that it should protect the liberty, give to labor its just reward, and promote the happiness and prosperity of the citizens. but it is alleged, by the honorable chairman of the committee, (mr. campbell,) that this is a delusion; that the people do not comprehend the subject; for that it is the orders in council which have produced our embarrassments, and not the embargo. here then, sir, i am precisely at issue with that learned and honorable gentleman. i contend that the pressure on the people is caused by the embargo, and not by the orders in council. however speculative theorists may reason, there is proof abroad, and stubborn facts to contradict their reasoning. test the market from boston to savannah, as to the price which you may get at ninety days credit, the embargo being continued, or on condition that the embargo be repealed in thirty days. is there no difference in the price under these circumstances? i know well from experience, and the whole country knows, that if the embargo be now taken off, the price of every species of produce will rise fifty per cent. the depreciation in price then flows from the embargo. remove it and they will give you more; keep it on and they will give you less. these are stubborn facts, and every man who has gone to the market will attest their correctness. you may reason as you please; but there is not a farmer that can be reasoned out of his senses, especially when they are sharpened a little by necessity. i hold these facts to be more conclusive than any abstract reasoning to prove that the embargo does work a diminution in the value of the articles which we have for sale. if this be the case, it results, sir, that we must ascribe to the operation of that measure the loss our country now so greatly feels. our citizens are not so uninformed as the gentleman from tennessee imagines. he thinks, and i agree with him, that the public voice will be generally right when the people are well informed. they have seen all the official communications which have been published, and are competed to judge whether the orders in council justified the embargo, and whether, if the embargo had not been laid, they would have wrought that effect which we now so sensibly feel. instead of being deluded, sir, their eyes are open, and the film removed; and they see that the embargo was not justified by necessity, and as far as their opinion has been expressed, that it was impolitic and unwise. the gentleman seems to think that the country cannot feel much because it feeds well; but we may feel and feed at the same time. it is plenty that we complain of. our surplus is touched by this torpedo, the embargo, and is thereby rendered useless. but gentlemen say that if the embargo were now taken off, we could not trade; and a calculation has been entered into by the gentleman from tennessee in opposition to one made by me at the last session. i have not seen my calculation for months, sir; it is before the public--the gentleman's statement will go to the same tribunal, and i am willing to commit my slender reputation to the country for the accuracy of mine, and let the people judge between us. the gentleman tells you that we have no commerce to resort to which would be either safe or profitable. it is strange we cannot confide the decision of this question to commercial men--for what commercial man would undertake a voyage which shall be attended with certain ruin? i had thought that men of great experience and information, and whose knowledge was sharpened by interest, might be safely confided in. but merchants, whose habits of life have led them to calculate, whose information extends to every part of the world, are not to be trusted with the prosecution of their own interest, but we must kindly take it in hand for them! sir, i contend that commerce had better be left free for merchants to find a market, which every one knows they would do, from their eagerness now to ship. if they could not export with safety, or profit, they would lay a voluntary embargo, ten thousand times better than a coercive one; the very necessity of coercion shows that our merchants would sail, were it not for the embargo. i contend that the embargo is ruinous and oppressive. need i say any thing further on the subject? look at the country. the courts of justice shut in one of the southern states; executions suspended in a state contiguous to this; and maryland reduced to the same necessity, from the circumstance of there being no market for our produce. so great is the pressure that the people have it not in their power to pay their ordinary debts; and how eloquent is the fact that in a moment of peace (for certainly there is not war) we are compelled to arrest the current of justice. the legislative acts depict the situation of the country more strikingly than volumes of argument. the state legislatures know the inability of their citizens to pay, and hold out a kind hand to assist them. in point of revenue how does it work? the honorable chairman of the committee, (mr. campbell,) in a speech of great learning and investigation, told us that the treasury never was more full. i wish the documents were before the house to convince us of it. but did an atom of it flow in from the operation of the embargo? if there be such a surplus, it only shows the beneficial operation of the system pursued anterior to the embargo. what is to fill your treasury now, if the people cannot sell their products? what will in this case become of your source of wealth in the western country? the people can neither buy lands, nor buying, pay for them. where is the impost duty which has supported the government, and sunk to a considerable degree the national debt? the moment you prevent all importation, there is an utter extinction of impost revenue; and at home a physical inability to produce any from the people at large. we are a rich country, abounding in the necessaries of life; we have money's worth, but no money. nor can our people by any practical means raise money to defray the expenses of state governments, much more of that of the united states. i am in the country, sir; i cannot collect my rents, my neighbors cannot sell wheat or tobacco. all is stopped. i ask then what physical ability we have to discharge the state taxes, or any other? we have no other way of getting money but through the sale of our produce. gentlemen say that our revenue would fall just as short, supposing the embargo to be raised. that is begging the question, sir. they assume that for a truth which they ought to prove in the first instance. leave commerce open, and you will soon have money in return for our produce, or that which will procure it. revenue is the life of government, and let me suppose gentlemen to be sitting here thirteen months hence, on the first of january, . where is your revenue then to come from? you have dried up every source of the national wealth. what must you do? either borrow or raise money by direct taxation. there is no doubt what must be resorted to; and it was touched with great ability, though slightly touched, by the gentleman from virginia, (mr. randolph,) as to the consequences which must grow out of such a system of direct taxation. this species of taxation is consonant to the genius of the country, to the habits of our people--it comes too close to the pocket of the agriculturist, and is besides a source of revenue which ought to belong exclusively to the states. i hold it as a political truism, that upon the sovereignty and independence of each state, as guarantied by the constitution, do our liberties depend. i know that some of the ablest men in america opposed the adoption of the federal constitution on this ground: that the general government being raised and supported on external matters only, if the time should ever arrive at which foreign commerce should cease, and internal taxes be resorted to, that great would be the conflict between the officers of the state and general governments, which would ultimately end in the prostration of state rights. gentlemen call the embargo, in silken phrase, a temporary suspension of commerce. i will call it by its own name; it is better known to the people by it. i contend that the embargo now laid is a perpetual embargo, and no member of this house can constitutionally say it is otherwise; for the immediate representatives of the people have so played the game as to leave the winning trump out of their own hands, and must now have a coincidence in opinion both of the senate and of the president of the united states to effect its repeal. if the whole of this body were to consent to a repeal, and a majority of the senate, yet the president might resist them both. is there any limitation to the law on the statute book? no; but there is a power given to the president to suspend it in the whole or in part, in the event of certain contingencies. have those contingencies happened? are they likely to happen? no, sir; and these are the views which i take of the subject. america, anxious to get red of this burden, has proffered to take it off, if either of the two belligerents would relax their edicts in our favor in relation to such one, keeping it on in relation to the other. what says the sarcastic british minister? why, sir, that they have no cause of complaint; that it was laid by the president as a precautionary measure; and they were told by our minister that it was not to be considered as a hostile measure. what says france? she gives us no answer, say gentlemen. aye, sir--and is that true? have we indeed received no answer? i think we have one that wounds our feelings as deeply as the answer of mr. canning. it is the situation of our minister abroad, who says he dare not ask for an answer, because the asking it might be injurious to our cause. what, have we a minister abroad, and is he afraid or unwilling to make a proposition to the government where he is resident? surely, sir, that state of things furnishes as definite an answer as any that could be given. we have no hopes that either will remove its edicts. sir, i consider the embargo as a premium to the commerce of great britain. gentlemen say that she is a great power, a jealous power, and possessed of a monopolizing spirit. if these views be correct, by annihilating our commerce, do we not yield the seas to her, and hold out an inducement to her forever to continue her orders in force? what prospect is there that the embargo will be removed? it cannot now be got rid of by a vote of this house. we are saddled with it. if we cast our eyes to proceedings elsewhere constitutionally held on the same subject, we shall find that it is to remain still farther to oppress and burden the people of this country with increased rigor. as a measure of finance it has laid the axe to the root. the tree is down that bore the golden fruit, and will not again grow till we ease ourselves of this measure. in a fiscal point of view i cannot then for my life think it a wise or provident measure. but as a preparation for war, it is still worse; because it produces a deficiency of that out of which war alone cannot be sustained. instead of having money for your surplus produce, it rots upon your hands; instead of receiving a regular revenue, we have arrested its course, and dried up the very source of the fountain. as to preparation at home, which is the only preparation contemplated to make, what or whom is it against? against france? she cannot come here. or against england, who, with the monopoly of commerce which you leave her to enjoy, has no object further to annoy you? i believe, as a preparation for war, the best expedient would be to get as much money as we could, to send out our surplus produce and bring back the supplies necessary for an army if to be raised at all--to arm and discipline the militia. a raising of the embargo would be a preparation for war--it would bring us articles of the first necessity for our surplus. but on a continuation of the embargo, things must progress from bad to worse. another thing, sir; i do not now mean to take a constitutional view of the subject--but will not gentlemen pause and reflect on the continuance of the embargo? it is well known that the general government grew out of a spirit of compromise. the great authors of that instrument were well acquainted with the term embargo. a temporary embargo for the purpose of sending out a squadron or concealing an equipment, was well understood. but i ask every one who hears me, if a question had been agitated in convention to give congress a power to lay an embargo for one or two years, if the eastern or commercial states would have agreed to it? does any man believe it? no man who knows the country can believe it. with what sedulous anxiety did they say, in a negative provision of the constitution, that congress should not lay an export duty! you are prohibited the minor power of taxing exports, and yet you stop exports altogether for an indefinite term. it is utterly inconceivable, that the states interested in commerce should have given their assent to any such powers so self-destructive. if they had given them, they ought to be most clear; not by implication, but most manifest. the exercise of powers counteracting principles most dear to every part of the community, ought to be assumed with the utmost caution. under that view, except the measure be most wise in itself and its effects most clear, the government ought not to continue the embargo. but why is it to be continued? we have taken some view of its effects at home. let us see what effects may be expected to be produced by it abroad. an honorable gentleman told us an hundred millions were saved by having the embargo, a sum nearly equal to the whole exports of the united states for one year, excluding the capital employed. the first two or three seizures of vessels, sir, would have sent an alarm abroad, and the danger been so imminent, they would have voluntarily retired from destruction. there are no reasonable data from which to infer that one hundred millions of our property could at any one time have fallen a prey. some few vessels might have been taken, but the rest would have escaped the grasp of the power which harassed them. i will now examine the character of this measure; for upon my word, sir, it seems a political nondescript, though we feel its effects so severely. the president tells you it is a measure of precaution only; and yet we are told by the gentlemen that it is a species of war, which america can best use to coerce the two greatest powers on the earth, commanding land and sea, to truckle at our feet. i know not how gentlemen can place our connection with foreign nations in such a predicament; whilst the president officially holds out to the world that the embargo was a peaceful measure, gentlemen now say that it is a coercive one, a sort of quasi war. i recollect a gentleman at the last session making an estimate of the west indies being worth an hundred millions to britain, and predicting that before the measure was ninety days known in the west indies, it would bring that nation to our feet, that it would act as a great political lever, resting its fulcrum on jamaica, and move all europe to our wishes. double the number of days have elapsed, and they hold out insulting language. how then can we trust to the future predictions of gentlemen? their error arises from a want of knowledge of the country; a little experience is worth all the theory in the world. in the years -' , an honorable feeling adopted a non-exportation and non-importation agreement, more faithfully executed by patriotism than any law since made or enacted; for every family refused to use an article which was not raised within the bosom of its own country. did it produce starvation in the west indies? no, sir; the politicians of that day did not so calculate. they knew the resources of those islands, and told them that if they would convert a part of their sugar plantations into corn-fields, they would not suffer. we are now in the habit of overvaluing ourselves and undervaluing our enemies. come the day when it will, we shall have no ignoble foes to meet. in the revolutionary war how did england stand--how her islands? for several years she was at war with america, with holland, with spain, with france, whose fleets in the east and west indies were often equal, sometimes superior to her own, and an armed neutrality in the north--during this period a french fleet blockaded the chesapeake, and aided the capture of cornwallis, and threatened the british islands--but how was this conflict with the world sustained? were the islands starved during these years? did they fall? no, sir; the british nation braved the storm, and was only conquered by her sons--america was victorious and independent; but europe retired discomfited. sir, america can again prove victorious, but it must be by other measures than embargoes--destructive only at home and without effect abroad. it is said that one reason why the embargo has not pressed so hard on great britain as it might, is, that it has not been so tightly drawn as it may be; that our citizens have evaded it. and, sir, if i have not any geographical knowledge of the country, tighten the cords as you may by revenue cutters and gunboats on the seaboard, and collectors and military on land, they will escape both. interest, ever alert, will avail itself of our extensive coast and elude the law. but gentlemen say they are not accountable for the failure in england, from another cause--the language of the public papers and pamphlets of the anti-embargoists. the enemy, we are told, has been induced to hold out under the idea that america will yield. sir, would great britain rely for her oracles on the newspapers or pamphlets of this country? have those causes wrought on her a perseverance in her measures? i wonder, sir, that, in the anxiety to find causes, gentlemen never cast their eyes to official documents--to a very important state paper issued on this side the atlantic--saying that the marshals and civil force were not adequate to enforce the embargo. when the president's proclamation arrived in england, no doubt could have remained of the effect of the embargo. another public record accompanied it--an act of one of the states arresting executions for debt during the continuance of the embargo, and for six months afterwards. with these public documents before them, the british nation would be more apt to judge, and more correctly judge, of the internal situation of the country, than from all the periodical publications of the day put together. pamphlets also have been written in this country, of which it is said the british ministry have availed themselves, to induce their people to believe that the united states are not capable of suffering. i believe we are. the people of america are as patriotic as any on earth, and will respect the laws, and must be made to respect them. they will obey them from principle; they must be made to obey them if they do not; for, while a law is in existence, it must be enforced. but i am somewhat surprised that gentlemen who talk of opposition publications in this country, as influencing england, should derive all their political data from british newspaper publications or opposition pamphlets. british opposition papers and pamphlets are with them the best things in the world; but nothing said here must be regarded there as correct. even mr. baring has been quoted, who is a commission merchant, to the greatest extent perhaps known in the world. the louisiana purchase of fifteen millions was nothing to him as a commission merchant. the next writer referred to, is mr. brougham, brought before parliament, to assert the rights of a body of merchants confined almost exclusively to the continental trade. he came forward on their account, and the fact was demonstrated, notwithstanding his exertions, that the orders in council did not, but the prior french decrees did, curtail that commerce. so the majority thought and acted on that supposition. if the continuance of the embargo, then, does not produce a change in the policy of great britain, by its operation on the west indies, if they resort to documents in this country, or even to speeches on this floor, they will probably continue the conflict of suffering as long as we are able to endure it, and continue our measures. for my opinion is, sir, that the extent of our seaboard affords such opportunities for evasion, that, unless we station cutters within hail of each other, on our whole coast, they will not be competent to carry our laws into effect. it will be benefiting the british colonies at the expense of our own country. the continuance of our measures may be productive of another consequence, attended with more serious mischief than all others together--the diversion of trade from us to other channels. look at both sides of the case. if great britain holds on, (and my predictions are not fulfilled, or she will persevere,) she will look for other resources of supply, that, in the event of a war, she may not be essentially injured. she will endeavor to arrange her sources of supply, so that no one nation refusing to deal with her shall have it in their power materially to impair her interests. as to cotton, large quantities of this article were formerly drawn from the west indies. the destruction of the sugar estates in st. domingo gave a new direction to cultivation. they ceased to grow in many of the west india islands that article which they formerly had raised to a considerable extent, (cotton,) and which, if the increased labor employed in the sugar estates, now adequate to the supply of europe, be not profitable, they will again cultivate. the brazils will assist to take a sufficient quantity for consumption, (and, as well as my memory serves me, they produce seventy or eighty thousand bags annually;) and south america will add her supplies. i grant that we can now undersell these countries; but i beg gentlemen to pause before they drive england into a change of commercial habits, which in the hour of future peace may never be fully restored, and thus inflict deep and lasting wounds upon our prosperity. sir, we are told that we are to produce great effects by the continuance of the embargo and non-intercourse with this nation. do gentlemen who were in the majority on the subject of the embargo when laid (for i was anxious then that at least foreign nations might come and give us what we wanted in exchange for our product) recollect their argument against permitting foreign vessels to come and take our produce; that it was privilege all on one side; that it would be nominal to france, while england would be the sole carrier? now, sir, as to the non-intercourse system--how does that operate? france has no commerce--cannot come here--and therefore is not injured by her exclusion from our ports. it operates solely on england. if the argument was then correct, to avoid the measure because it operated to the sole benefit of england, what shall we think of the non-intercourse measure which operates solely against her? in a commercial view, therefore, and in point of interest, this country will be deeply benefited by a removal of the embargo. but, gentlemen say that the honor of the country is at stake; that a removal of the embargo would be submission to great britain, and submission to france. how is our honor affected by removing it? we say we will not trade--with whom? with them alone? no, sir; the embargo says we will not trade with anybody. all nations, when they find it convenient, can pocket their honor for profit. what is it we do for a license to go into the mediterranean? do we not pay an annual tribute to algiers for liberty to navigate the sea safer from its corsairs? have we not an undoubted right to navigate the mediterranean? surely; and yet we pay annually a tribute for permission to do it--and why? because the happiness and interest of the nation are promoted by it. in a monarchy, the prince leads his subjects to war for the honor of his mistress, or to avenge a petty insult. but, what best consults the honor of a republican government? those measures which maintain the independence, promote the interest, and secure the happiness of the individuals composing it. and that is the true line of honor which, if pursued, shall bring with it the greatest benefits to the people at large. i do not know, sir, strictly speaking, whether the destruction of any commercial right is destructive to the independence of the country; for a nation may exist independent, and the happiness of the people be secured, without commerce. so, that the violation of commercial rights does not destroy our independence. i acknowledge that it would affect the sovereignty of the country and retard its prosperity. but, are not the measures which have been adopted, submission? no train of argument can make more clear the fact, that, withdrawing from the ocean for a time is an abandonment, instead of an assertion, of our rights. nay, i think i have the authority of the committee for it, for i speak of submission as applicable to the measure recommended by the committee. they say, that "a permanent suspension of commerce, after repeated and unavailing efforts to obtain peace, would not properly be resistance; it would be withdrawing from the contest, and abandoning our indisputable right freely to navigate the ocean." if a permanent embargo, after repeated offers of peace, would not properly be resistance, but an abandonment of our rights, is not a temporary embargo--and this has been a year continued--an abandonment for the time? unquestionably it is. so long as it continues, it does abandon our rights. and now i will show that it is submission, and not resistance. i maintain that the embargo, aided by the second and third resolutions of the committee, does complete an abandonment of our maritime rights, and is a submission to the orders and decrees. of what nature are the rights in contest? they are maritime rights, and not territorial; and, to be used, must be exercised exterior to the limits of our territory. whatever measures are confined within our territorial limits, is not an assertion or enjoyment of our exterior rights. their enjoyment must be abroad, consisting of the actual use of them. if, then, all our measures be confined within our jurisdictional limits, they cannot amount to an enjoyment of the rights exterior to those limits. i will illustrate this, to every man's comprehension. there is a street in georgetown, through which every one has a right to pass--it is a highway. a merchant, with whom i have dealt for many years, because i purchase some articles of another merchant, says i shall not go through that street. i cross over, and his enemy says i shall not pass by him. i retire home and call a consultation of my friends. i tell them that i have entered into resolutions, first, that, to submit to this will be an abandonment of my right to pass and repass. well, what then, say my friends? why, i declare i will neither go nor send to either of their houses--have no intercourse with them. well, what then? why, i will buy a broadsword and pair of pistols, and lock my door and stay at home. and do i enjoy my right of walking the street by making myself a prisoner? surely not, sir. now, this is precisely our case, under these resolutions. we say, that to submit, would be a wound on our honor and independence. we call a consultation. what is the result of it? we say we will have no intercourse with the nations injuring us, nor with any other; and, lastly, that we will arm and defend ourselves at home. and, i ask, is this resistance? is it an enjoyment of our rights, or a direct, full submission? is it not an abandonment of those rights to which we are entitled? it has been said, that the little portion of commerce which would remain unaffected by the belligerent edicts, would belong to us as a boon from england, were we to prosecute it. i do not understand it in this light. our right to navigate the ocean is inherent, and belongs to us as a part of our sovereignty; but, when interdicted from any one place, if we go to another, we certainly do not accept that commerce as a boon. i might as well say, if a man interdicted me from going down one street in georgetown, that i accept a boon from him in going down another. this is certainly not the case. the trading to these places is exercising our original right, not interfered with; and, so far as those orders and decrees do not operate, we could carry on a legitimate trade, flowing from our indisputable right, as a sovereign nation, to navigate the ocean. it does seem to me then, sir, that the residue of our trade might be carried on without submitting to the belligerent edicts. but, an honorable gentleman (mr. g. w. campbell) asked me, yesterday, if we were to permit our enemies to take any part, whether they would not take the remainder? this, like the horse's tail in horace, would be plucked, hair by hair, till it was all out. true, sir, this might possibly happen. but, what have we done? why, we have cut the tail off, for fear all the hair should be taken out. we have ourselves destroyed all that portion of our trade which the belligerents have not interdicted. taking the whole into view, then, i think that the continuance of the embargo, as an assertion of our rights, is not an efficient mode of resistance. but gentlemen say, in a crisis like the present, when each individual ought to contribute his mite, it is very easy to find fault; and they ask for a substitute. i want no substitute. take off the embargo. that is what i want. but when called upon in this manner, i cannot help looking around me to the source whence i expected higher and better information. the crisis is awful. we are brought into it by the means recommended by the head of our foreign relations. i think the president advised the embargo. if he did not, he certainly advised the gunboats and the additional military force. in these minor measures, which have been in their consequences so interesting, there was no want of advice or responsibility. why then, in this awful crisis, shall we not look to the same quarter? the responsibility is left on us. we anti-embargoists show that things would not have been thus, had our advice been taken; and, not being taken, we have little encouragement to give more. our advice is on the journals. we said, let us have what commerce we can get, and bring home returns to stimulate our industry. i believe the declarations of gentlemen when they say that they are friendly to commerce; but their fondness for it is the embrace of death. they say they will protect it; but it is strange that they should begin to protect it by abolishing it. i contend that their measures have not answered the purposes of protection, but on the contrary they have been prejudicial to it; and i trust in their candor that they will join us in giving elasticity to commerce, and removing this pressure. the interests of commerce and agriculture are identified; whenever one increases, the other extends. they progress _pari passu_. look at your mercantile towns; and wherever you find one, like a pebble thrown into water, its influence extends in a circle more or less remotely, over the whole surface. gentlemen from the agricultural country vote to support commerce, because it increases the value of their own product; they are not so disinterested as they suppose, and i believe the best way is to consider the two inseparable. as i am at present disposed, could i not obtain a total repeal, i would prefer a resolution laid on the table by a gentleman (mr. mumford) from one of the largest commercial cities in the union, and who must be supposed to know the opinion of commercial men. i can scarcely with my knowledge or understanding point out any thing; but if i have not capacity to be one of the _ins_, i can readily perceive whether the present system be adequate or not. i would let our vessels go out armed for resistance; and if they were interfered with, i would make the dernier appeal. we are able and willing to resist; and when the moment arrives, there will be but one heart and hand throughout the whole union. all will be american--all united for the protection of their dearest rights and interests. mr. lyon opposed the report in a speech of an hour. mr. desha said he had been particularly attentive to the whole of the debates during the very lengthy discussion of this important subject, and, said he, i am at a loss how to understand gentlemen, or what to conclude from their observations. am i to conclude that they are really americans in principle? i wish to do so; and i hope they are; but it appears somewhat doubtful, or they would not tamely give up the honor of their country by submitting to french decrees and british orders in council--that is, by warmly advocating the repeal of the embargo, without proposing something as a substitute. do gentlemen mean an abject acquiescence to those iniquitous decrees and orders in council? do gentlemen mean that that liberty and independence that was obtained through the valorous exertions of our ancestors, should be wrested from our hands without a murmur--that independence, in the obtaining of which so much virtue was displayed, and so much blood was shed? do they mean that it should be relinquished to our former masters without a struggle? gentlemen assign as a reason why the embargo should be removed, its inefficacy--that it has not answered the contemplated purpose. i acknowledge that as a measure of coercion it has not come entirely up to my expectations. it has not been as efficient as i expected it would have been. but what are the reasons why it has not fully come up to the expectations of its supporters, as a measure of coercion? the reasons are obvious to every man who is not inimical to the principles of our government, and who is not prejudiced against the present administration. was it not for want of unanimity in support of the measure? was it not in consequence of its having been wantonly, shamefully, and infamously violated? and perhaps winked at by some who are inimical to the principles of our government; but who have had address and ingenuity sufficient to procure themselves to be appointed to office, and in which situation they have obtained a certain influence, and by misrepresentations as well as clamorous exertions have, in many instances, led the unwary astray, and caused the measure to become unpopular in some parts of the country? by improper representations and fallacious statements of certain prints, apparently, and i might add, undoubtedly, hostile to civil liberty and free government, and advocates of british policy; by the baneful opposition of british agents and partisans, together with refugees or old tories, who still recollect their former abject standing, and who have never forgiven the american independence, and who, in all probability, are doing all in their power at this time to assist their master george the third in bringing about colonization and vassalage in this happy land--by keeping up party spirit to such a height, that the tyrant of the ocean was led to believe that he had a most powerful british party in the bosom of our country--and that, by an extraordinary opposition made to the embargo, we would become restless, and could not adhere to a suspension of commerce--consequently would have to relax, and fall into paying tribute, under the orders of council, to that corrupt government, britain. these are part of the reasons why the embargo, as a measure of coercion, has not proved completely efficacious; and had it not been for this kind of conduct, our enemies would have been brought to a sense of justice, an amicable adjustment of differences would have taken place. by this iniquitous conduct they have tried to wrest from the hands of government an engine, the best calculated of all others that could have been imagined, to coerce our enemies into a sense of justice, and bring about reciprocity of commerce, that most desirable object, a system of all others the best suited to the peaceful genius of our government. but if it has not been entirely efficacious as a measure of coercion, it has been particularly serviceable in many instances--by keeping us out of war, which is at all times to be deprecated by civilized men, by preserving our citizens from becoming victims of british tyranny on board their war ships, and securing an immense amount of american property that was sailing on the ocean, supposed to amount in value to between sixty and a hundred millions of dollars, the principal part of which would inevitably have fallen into the voracious jaws of the monster of the deep, or into the iron grasp of the tyrant napoleon--by which, if we are involved in war, we have preserved the leading sinews, wealth; and above all, for preventing us from becoming tributary to those piratical depredators, whose inevitable determination is to monopolize the whole trade of the world, by which they rob us of our inherent rights. if gentlemen had come forward with propositions to adopt any thing as a substitute for the embargo, that would have prevented us from the degradation of submission, or from falling into the hands of those monsters of iniquity, they no doubt would have met with support. the friends of this measure are not so particularly attached to it, but what they would willingly exchange it for one that was less sorely felt, less oppressive, and one that would preserve national honor, and bring about a redress of grievances; as it was with extreme regret that they had to resort to the measure of the embargo, and which could only be warranted by the necessity of the case. i am as anxious for the repeal of the embargo as any gentleman in this house, or perhaps any man on the continent, whenever it can be done consistent with the honor and welfare of the nation. the citizens of kentucky, whom i have the honor to represent, feel its effects in common with their fellow men throughout the continent; but their patriotism is such that they bear it with cheerfulness, and magnanimity, and very justly consider it as a preventive of greater evils. i think that a retrograde step at this time would have the appearance of acquiescence, and be calculated to mark the government with pusillanimity; therefore i deprecate war, believing as i do, that in a government constructed like ours, war ought to be the last alternative, so as to preserve national honor. as such it would perhaps be advisable to adopt something like the second resolution that is under consideration, which, in addition to the embargo, would amount to a complete non-intercourse--which if systematically adhered to must produce the desired effect. if it should not, it will at least give time to make preparations for a more energetic appeal, which may probably have to be the result. but let it not be understood, because i am for avoiding war, as long as it can be avoided upon honorable terms, that i am against going to war when it becomes actually necessary. no, sir, my life and my property are at all times at my country's command, and i feel no hesitation in saying that the citizens of kentucky, whom i have the honor to represent, would step forward with alacrity, and defend with bravery that independence in which they glory, and in the obtaining of which some of the best blood of their ancestors was spilt; for the degradation of tribute they would spurn with manly indignation. i would even agree to go further. from my present impression, i would agree to a recall of our ministers from both england and france, and to a discharge of theirs; and have no intercourse with the principal belligerents until they learned to respect our rights as an independent nation, and laid aside that dictatorial conduct which has for years been characteristic of those european despots; for i am almost certain, under existing circumstances, that our ministers in neither england nor france can do us any possible service, and that their ministers here can, and in all probability do a great deal of harm, by fomenting division and keeping up party spirit, at a time, too, when unanimity is of the utmost consequence. as to our commerce being driven from the ocean, i am not disposed to take a lengthy retrospect, or to examine minutely in order to discover which of our enemies, england or france, was the first aggressor; it is sufficient for me that both france and england have done nearly all in their power to harass and oppress us in every imaginable way. i am not the apologist of either france or england. i am an american in principle, and i trust whenever it is thought necessary to call my energies into action i shall prove myself to be such, by defending and protecting the rights and independence of my own country, from any encroachments, let them come from what quarter they may. by those iniquitous decrees of france, all vessels bound to or from england are deemed lawful prize, and if spoken by an english ship they were condemned in the prize courts of france. when a ship arrived in any of the french ports, bribery and corruption was practiced; in order to succeed in her condemnation, a separate examination of the crew would be resorted to, as to the events that happened on the voyage; offers made of one-third of the ship and lading as their portion of the prize money, if they would give information of their vessel having touched at any of the ports of england, or that any english cruiser had visited her on the voyage. consequently, by the french decrees, all property afloat belonging to the americans was liable to seizure and condemnation. are gentlemen, possessing the feelings of americans, prepared to submit to such degradation? are they prepared to say the embargo shall be raised, while our commerce is subjected to this kind of depredation? i trust not. as respects the british orders in council, all american vessels bound to french ports, or to any of the allies of the french, are considered good prize in the courts of britain. england says you must not carry on any trade to any of the places that i have interdicted, without obtaining my leave--pay me a duty, and then you shall be permitted to go to any port--by paying me a tribute you may trade to any port you please. degrading to freemen! britain in her goodness says, you shall have the liberty to bring flour from the united states of america to england, land it, and re-export it, by paying two dollars on every barrel into my coffers. on cotton, which is certainly a very important article, a duty is charged on its exportation of about nine pence per pound sterling; nearly equal to the full value of that article in the parts of america where it is raised, exclusive of the import duty, which is two pence in the pound. therefore, if our traders wish to go to the continent of europe, the condition is, a tribute must be paid nearly equal to the value of the cargo, exclusive of the insurance and risk. if i mistake not, about two-thirds of the cotton exported from this country is made use of in england; on the balance a tribute must be paid of about nine pence sterling per pound, which is about twenty millions of pounds--on a calculation the sums will be found to be enormous--purely for the liberty of selling cotton; as also high and oppressive duties on other articles. if these impositions are submitted to, i pronounce your liberties gone--irretrievably lost--a blot made in the american political character, never to be obliterated. no man possessing an american heart will submit to the degradation of paying tribute to any nation on earth, nor suffer the freemen of america to be taxed without their consent. will gentlemen say the embargo law must be repealed, and suffer our commerce to flow in its usual channel, while the decrees of france and the british orders in council are enforced, by which they would not only be liable to seizure and condemnation, but what is more degrading, pay a tribute of many millions of dollars annually, too degrading to be thought of with patience? we received liberty in its purity from our heroic ancestors--it is a duty incumbent on us to transmit it to posterity unsullied, or perish in the undertaking. but, sir, it has been said that the people of the east would not bear the continuance of the embargo any longer--that they would force their way in trade; hinting, i presume, that they would openly rebel against your laws if they were not allowed to pursue their usual course in commerce, by which they subscribe to those nefarious orders in council, which is tribute of the most degrading kind. who are these people of the east that have the hardihood to insinuate any thing like rebellion against the laws of the land, or that would wish to degrade themselves so far as to pay tribute? it cannot be the descendants of the heroes of ' , that bravely stepped forth and fought against a tyrant for liberty! it cannot be the descendants of those brave fellows that struggled on the brow of bunker's hill for independence! no. it must be the descendants of refugees or old tories, or otherwise it must be british agents or partisans; for no man possessing the feeling that an american ought to feel, would throw out such threats, or degrade himself by coming under tribute. if patriotism has left the land of freedom--if it has taken its flight from the mild and peaceful shores of columbia--if foreign influence and corruption has extended itself so far that the people are disposed to rebel against the government of their country--if the dissemination of foreign gold has had the baneful effect of suppressing all noble and patriotic sentiments, it is indeed time that foreign intercourse should cease. if the spirit of commercial speculation and cupidity had surmounted all patriotism, it is time that more energetic measures should be resorted to, in order that the chaff might be separated from the wheat; in a word, that traitors might be known. mr. nelson said it was with very considerable reluctance that he rose to make a few remarks on this subject, after the very lengthy and very eloquent discourse of the gentleman from maryland, (mr. key.) i did not intend, said he, to have troubled the house upon this question; but as i am a man who generally speaks off-hand, it is necessary for me to answer the arguments of any gentleman promptly, if i intend to do it at all. for this reason i rise to do away some false impressions which may have been made by the gentleman's eloquence on the house, and on the by-standers, in the galleries, for i must say that his speech was better calculated for the galleries than for the sober members of this house. the gentleman commenced his argument with stating, what i do not believe, with due submission, is true in point of fact, that, although at their last session the legislature of maryland passed resolutions approving the embargo, yet another election having taken place, the present legislature have passed contrary resolutions. mr. key said he had spoken of the house of representatives of maryland, and not of the legislature. mr. nelson said the house of representatives have, to be sure, passed resolutions bottomed on the same principles as those on which the gentleman himself has spoken, and which i have heard echoed in the electioneering campaign from almost every stump in the district in which i live. whilst the gentleman was on this subject, i wish he had told us of the philippic these resolutions got from the senate of maryland. the fact is not, as i understood the gentleman to say, that the legislature of maryland have passed resolutions disapproving the measures of the government. but the gentleman intimates that the politics of maryland have undergone a great change, and that the party formerly uppermost, is now under. sir, the question which turned out the old members of the legislature in the county where i live, was not the embargo system, but a question as to a state law. the militia system was the stumbling-block which caused many of the old members to be turned out, and thus the opposite party got the ascendency in one branch of the legislature of maryland. but, since that election, another has taken place for members of congress; and how has that turned out? why, sir, that gentleman and two other anti-embargoists are elected, whilst six men, who have always approved of it, are also returned; making six to three. does this prove a change? no, sir. but we have had another election since that. out of eleven electors, nine men are returned as elected who have approved this system of measures. does this prove that the embargo was the cause of the change of the politics of the maryland legislature? i think not, sir. but the gentleman has said that the embargo, and not the orders in council and decrees, has destroyed the commerce of this country. i do not know, after all the arguments which i have heard, if the gentleman listened with the same attention as i did, how he could make such an assertion. when our ports are blockaded, and all the world is against us, so that, if the embargo was raised, we could go nowhere with perfect freedom, can gentlemen say that the embargo has ruined our commerce? is it not these acts which have shut us out from a market? the gentleman says we may trade to england. yes, sir, we may, provided we will pay all such duties as she chooses, and go nowhere else. and would not the doing this place us in precisely the same situation as we were in before the revolution? england says we may trade with her, paying heavy import and export duties, but says we shall go nowhere else. if you go anywhere else, she says you shall go by england, take a license, and pay a duty, and then you may trade. is it to be supposed that the people of the united states will agree to this? are they reduced to that situation, that they will become the vassals of a foreign power--for what? why, sir, for the prosecution of a trade with that foreign power, who, if her present impositions be submitted to, may cut up our trade in any manner she pleases; for, through our trade, she will raise a revenue to almost an equal amount with the value of your whole produce carried hence. she levies a higher tribute on some articles than the article itself is worth, and this trade the gentleman wants to pursue. he wants no substitute; "take off the embargo," says he, "and let us trade." sir, if we could trade upon equal terms, i, too, should say, "take off the embargo, and let us trade." but if we cannot trade, except under the license of a foreign power, i say it would be ruinous to us. and has it come to this, for all the arguments go to this, that the american people, for the sake of pounds, shillings, and pence, for the sake of hoarding up a few pence, are to give up their independence, and become vassals of england and france? i hear nothing from the gentleman about the _honor_ of the nation. it would appear as if gentlemen on the other side of the house are willing to sell their country if they can put money in their pocket. take off the embargo, they cry--for what? money. pay tribute--for what? money. surrender your independence--for what? all for money, sir. i trust the people have a different feeling from these gentlemen. the people love money, sir; but they love liberty and independence much better. if money had been the sole object, the revolution would never have happened; and if that be our sole object now, the blood spilt and money spent in our revolution was all in vain. but the gentleman says, that our honor is not concerned; that republics have none; that their honor is to pursue that course by which they can make the most money. mr. key said that he did not say that the honor of the nation was money; but that the line of conduct was most honorable which best secured the happiness and independence of the people. mr. nelson.--i ask pardon of the gentleman if i misrepresented him; because the gentleman's argument was quite vulnerable enough, without my making it more so than it really was. i did understand the gentleman to say, and had he not contradicted me, should still believe so, that the honor of the republic is precisely that which brings the most riches to the nation. but i ask, whether the line of conduct recommended by that gentleman be such a one as would be proper to secure and take care of the independence of the people? is it to secure the independence of the people, to suffer a foreign nation to impose upon them any terms which it thinks proper? is it for the honor or happiness of this nation that we should again pass under the yoke of great britain? is it for the honor of the nation to remove the embargo, without taking any other measure, and to bear with every indignity? no, sir; and yet the gentleman tells you, "take off the embargo, i want no substitute." i did not suppose, sir, that gentlemen who oppose our measures (for i have great charity for them) would openly tell us to take off the embargo, and trade as foreign nations choose to dictate. but the gentleman talks about the pressure of the embargo. that it does press hard is beyond doubt. it is an evil thing in itself; something like the dose a doctor gives us; it is a disagreeable thing in itself, but it cures your complaint. thus the embargo is a disagreeable thing; but if we swallow it, however disagreeable, it may bring the political body to health. the gentleman gilds the pill he would give us; but it is a slow poison that would creep upon us, and bring on a distemper heretofore unknown to us, that sooner or later would carry us to the grave. we take off the embargo, and trade on their terms; what will be the consequence? will they not forever hereafter compel us to trade as they please? unquestionably. and is it not better to submit to some inconveniences, eventually to insure a free trade? the gentleman says that, if produce be offered for sale, on condition that the embargo be raised, it will bring a higher price than if on a certainty that the embargo is to be continued. no doubt, sir, when the embargo is taken off, a momentary spur will be given to exportation; but how long will it continue? it will last but a very few weeks. produce will soon be reduced to its proper level in the market. take flour, for instance, the principal article raised for exportation in the gentleman's district and mine. it would rise, on a removal of the embargo, to ten or twelve dollars; and how long would that price last? it would be a thing of a day, and to the people who live in our districts of no sort of consequence; it would be of no benefit but to those who have flour at the market; to the merchants who have bought it up at a low price. before the honest farmer can bring his produce to market, the great price will be all over; and though no embargo affects it, will be down to its present price, of four or five dollars; so that, although a removal of the embargo would reduce the price of produce at first, i cannot see how gentlemen would make that an argument for taking off the embargo. if the gentleman can show that the price will continue, and that we can traffic without dishonor, then, sir, would i cordially join hands with him to take off the embargo. but the gentleman says, that the pressure is so very great that some of the states have passed laws for suspending executions. i know not what has been done in other states on this subject, nor what has been done in my own. if the gentleman has any information on the subject, i should like to hear it. a bill was before the house of delegates for that purpose, but i did trust in god that it would be unanimously rejected. that such a law would pass in maryland i never had an idea, because it is totally unnecessary. there are fewer men confined in jail for debt on this day than there ever were before for sixteen years that i have been in the practice of the law in that state. no man has gone to jail but those who, to use an emphatic expression, have _broken into jail_, who were too idle to work to pay their debts; who would get a friend to put them into jail, if they could get no other; and who stay there awhile, and then come out new men. this being the case, there can be no reason for shutting the courts of justice there. on the subject of revenue, i can only say, that at present there appears to be no deficiency of money in the treasury. it is very certain that if this embargo and non-intercourse system be continued long, our treasury will run short, and we shall have no means of filling it but by loans or direct taxation. but i trust and hope that before the money already in the treasury is fairly expended, if we pursue our object we shall get over our embarrassments. rather than pursue this subject much further, i would not only arm our merchantmen at sea, but our citizens on the land, and march to the north and east, and see if we could not do them some injury in return for all that we have received from them, even if we should do ourselves no good by it. it would do me some good to be able to do them some injury. i confess i do not like this quaker policy. if one man slaps another's face, the other ought to knock him down; and i hope this will be our policy. but the gentleman says that the president recommended this measure to congress as a measure of precaution. i do believe that, at the time the embargo was laid, it was done as a measure of precaution, and the president viewed it in that light. after its having answered every purpose as a measure of precaution, i am for continuing it as a measure of coercion. for, whatever gentlemen say about turning sugar plantations into cotton-fields, if the embargo be rigidly enforced, that we shall distress the west indies very considerably, i do believe. i am unwilling to involve this country in a war if i can avoid it, but i am still more unwilling to take off the embargo and embrace the proposition of my colleague: for i have no idea of a free trade being permitted to us. in any country a war is to be deprecated; in this country particularly, where every thing depends on the will of the people, we ought to be well aware that war meets the approbation of the people. we might make many declarations of war without effect, unless the people follow us. we try every method to obtain honorable peace; and if we do not succeed, the people will go with us heart and hand to war. i shall enter into no calculations on this subject, sir. when the great question is presented to us whether we will submit or maintain our independence, we must determine either to do one or the other: that nation is not independent which carries on trade subject to the will of any other power. then, to my mind, the only question is, shall we defend ourselves, or shall we submit? and on that question i will make no calculations. if a man submits, of what use are calculations of money, for it may be drawn from him at the pleasure of his master? let us have as much trade as we may, if we can only carry it on as others please, we need not calculate about money. we shall be poor, indeed; and, having lost our independence, we shall not even have money in return for it. but this nation will not submit, sir, nor will any man, who is a real american, advocate such a doctrine. as to the embargo, mr. n said he was not wedded to it. if any better system were devised, he would give up the present system and embrace the better one, let it come whence it would. the house adjourned without taking a question. friday, december . mr. lewis presented a petition of the president and directors of the washington bridge company, praying a revision and amendment of an act passed at the last session of congress, entitled "an act authorizing the erection of a bridge over the river potomac within the district of columbia."--referred to the committee for the district of columbia. mr. jeremiah morrow, from the committee on the public lands, presented a bill to revive and continue the authority of the commissioners of kaskaskia; which was read twice, and committed to a committee of the whole on monday next. an engrossed bill to authorize the president to employ an additional number of revenue cutters was read a third time: whereupon, a motion was made by mr. durell that the said bill be recommitted to the committee of commerce and manufactures, farther to consider and report thereon to the house: it passed in the negative. the main question was then taken, that the said bill do pass, and resolved in the affirmative--yeas , nays , as follows: yeas.--evan alexander, lemuel j. alston, willis alston, jun., ezekiel bacon, david bard, joseph barker, burwell bassett, william w. bibb, william blackledge, john blake, jun., thomas blount, adam boyd, john boyle, robert brown, william butler, joseph calhoun, george w. campbell, matthew clay, john clopton, richard cutts, john dawson, josiah deane, joseph desha, daniel m. durell, william findlay, james fisk, meshack franklin, francis gardner, thomas gholson, jun., peterson goodwyn, edwin gray, isaiah l. green, john harris, john heister, william helms, james holland, david holmes, benjamin howard, reuben humphreys, daniel ilsley, richard m. johnson, james kelly, thomas kenan, philip b. key, william kirkpatrick, john lambert, edward lloyd, john love, robert marion, william mccreery, william milnor, daniel montgomery, jun., john montgomery, nicholas r. moore, thomas moore, jeremiah morrow, john morrow, gurdon s. mumford, roger nelson, thomas newbold, thomas newton, wilson c. nicholas, john porter, john rea of pennsylvania, john rhea of tennessee, jacob richards, matthias richards, samuel riker, benjamin say, ebenezer seaver, samuel shaw, dennis smelt, john smilie, jedediah k. smith, john smith, samuel smith, richard stanford, clement storer, peter swart, john taylor, john thompson, george m. troup, james i. van allen, archibald van horne, daniel c. verplanck, jesse wharton, robert whitehill, isaac wilbour, alexander wilson, and richard wynn. nays.--john campbell, martin chittenden, john culpeper, john davenport, jun., james elliot, william ely, barent gardenier, william hoge, richard jackson, robert jenkins, joseph lewis, jun., edward st. loe livermore, nathaniel macon, josiah masters, jonathan o. mosely, timothy pitkin, jun., john russell, james sloan, william stedman, lewis b. sturges, samuel taggart, benjamin tallmadge, jabez upham, philip van cortlandt, david r. williams, and nathan wilson. _resolved_, that the title be, "an act to authorize the president to employ an additional number of revenue cutters." a message from the senate informed the house that the senate have passed a bill, entitled "an act farther to amend the judicial system of the united states;" to which they desire the concurrence of this house. _foreign affairs._ the house resumed the consideration of the unfinished business depending yesterday at the time of adjournment--the report of the committee still under consideration. mr. d. r. williams said: it has become very fashionable to apologize to you, sir, for every trespass which a gentleman contemplates making on the patience of the house, and i do not know but in ordinary cases it may be very proper; but the present question is certainly such a one as exempts every gentleman from the necessity of making any apology whatever. i shall offer none, and for the additional reason, that i have given to every member who has spoken the utmost of my attention. upon this question, which presents itself in every point of view too clear to admit of a single doubt; equally unsusceptible of sophistical perversion or misrepresentation; a question which involves a political truism, and which is undenied; a debate has grown out of it, embracing the whole foreign relations of this country. i shall not attempt to follow the gentlemen in the course which they have pursued, but will confine my observations to a justification of the embargo, and to the proof, that the orders and decrees of the belligerents, and not the embargo, as was said by the gentleman from maryland, (mr. key,) have produced the present embarrassments. bad as our situation was at the close of the last session, it has now become infinitely worse. the offer to suspend the embargo laws, for a suspension of the orders in council, made in a sincere spirit of conciliation, has been contemptuously rejected, those orders justified, and an extension of their operation threatened: this is a state of things insufferable. at a crisis of this sort, the importance of which every gentleman acknowledges, i deem it proper that every man who feels an ardent love of country should come forward to save that country, to rescue his sinking parent from the jaws of pollution. the effort should be, who shall render our common country the most good; who will be foremost in the ranks; we should not shrink behind the irresponsible stand of doing nothing, ready to raise ourselves upon the mistakes of others; perhaps, the virtuous misfortunes of our political brothers. i am willing to take my share of the responsibility of asserting the wisdom of the original imposition of the embargo, and the correctness of its present and future continuance. gentlemen have been frequently called upon, while they make vehement declamation against the embargo, to say what they wish in its stead; they declare the utmost hostility to the measure, and yet they offer no substitute. can they for one moment forget, that upon this question as upon every other national subject, we must all hang together or be hung separate! it inevitably follows from the organization of our government, that this is the fact. i consider the original imposition of the embargo, as wise in a precautionary point of view; and notwithstanding all that has been said, and eloquently said, by the gentleman from maryland, (mr. key,) i believe it was called for by the most imperious public necessity. every one must know, that had it not been for the embargo, millions of property, and (what is worse) thousands of our seamen, must have fallen a sacrifice to the cupidity of belligerent cruisers. no need of calculations on this subject--i shall not stop to enter into one. i appeal to the common sense of the nation and of this house, whether or not the orders and decrees were calculated to have swept from the ocean all our floating property and seamen. but, no, say gentlemen, the seamen are not saved; and here we are amused with the old story, new vamped, of the fishermen running away. the seamen gone, sir! this is a libel on their generous and patriotic natures. where are they gone? every man who ventures such an allegation, is bound to prove it; because it is, if true, susceptible of proof. surely, sir, the assertion, or even proof, that british or other foreign seamen have left your service, does not establish that american seamen have deserted their country. the british seamen gone! i am glad of it, sir. i wish there had never been one in our service; and if there is an american tar who would, in the hour of peril, desert his country, that he would go also. the thing is impossible sir; every vessel which has sailed from the united states since the imposition of the embargo, has passed under such a peculiar review before the officers of the revenue, that had any number of american seamen shipped themselves, proofs of their departure might, and certainly would, have been had. read the intelligence from nova scotia; it informs us that none but english sailors have arrived there. i call upon gentlemen then to show how, where, and when, an american seaman has left his country, except in the pursuit of his ordinary vocation. if the gentleman from maryland (mr. key) will apply to his political--i beg pardon--to his mercantile barometer, the insurance offices, he would find that, after the operation of the orders in council was known, insurance could not have been effected at baltimore to the continent of europe for per cent., and not at london, on american property, for guineas per cent. the proof of this is before me. does not this prove that so much danger existed on the ocean that it was next to impossible to pass without seizure and condemnation? and surely he will not contend that this advance of premium was caused by the embargo? if the embargo then has saved any thing to the country--and that it has there can be no doubt--exactly in the proportion that it has saved property and seamen to you, it has lessened the ability of the enemy to make war upon you, and what is primarily important, lessened the temptation to war. the rich plunder of your inoffensive and enlarged commerce, must inevitably have gone to swell the coffers which are to support the sinews of war against you. the reaction thus caused by the embargo, is in your favor, precisely to the amount of property and men which it has saved to you from your enemies. but we are told that the enterprising merchant is deprived of an opportunity--of what? of ruining himself and sacrificing the industry of others. has any capitalist said he would venture out in the present tempest which blackens the ocean? no, sir, they are your dashing merchants; speculators, who, having nothing to lose and every thing to gain, would launch headlong on the ocean, regardless of consequences. no commerce can be now carried on, other than that which is subservient to the orders in council. i appeal to the gentleman from rhode island (mr. jackson)--no man is better informed on this subject--would he venture his property on the ocean in a trade contravening those orders? i would ask him further, would brown and ives, merchants, as remarkable for their prudence as for their enterprise, and for their capital as either; would they send their vessels to the continent of europe? i believe their opinion would corroborate the opinion of mr. gray. the mercantile distresses have been described, with every possible exaggeration, as insufferable. the real distress, sir, is quite sufficient, without any undue coloring. i regret extremely, indeed, sir, from my heart and soul, i lament that the embargo should be considered as falling heavier on the merchant than on the planter. if i know my own heart i would share with them to the last loaf. but compare their situation now with what it would have been if their whole property had been swept away. compare their present situation with that which must have been the necessary consequence of the seizure of all the floating, registered tonnage of the united states, and which would have happened, but for the embargo. their vessels are now in safety; if the embargo had not been laid they would have lost both vessel and cargo. they must have either imposed an embargo on themselves, or exposed their capital to total destruction. another reason why i approve of the embargo, and which, really to my mind, is a very consolatory reason, is, it has at least preserved us thus far from bloodshed. i am one of those who believe the miseries of this life are sufficiently numerous and pressing without increasing either their number or pungency by the calamities inseparable from war. if we had put the question to every man in the nation, the head of a family, whether we should go to war or lay an embargo, (the only choice we had,) nineteen out of twenty would have voted for the embargo. i believe, sir, the people of the united states confiding their honor and national character to your guardianship, would this day decide the same question in the same way. the people have nothing to gain by war, nothing by bloodshed; but they have every thing to lose. from this reason results another, equally satisfactory; we are still free from an alliance with either of the belligerents. upon a loss of peace inevitably follows an alliance with one of those two powers. i would rather stake the nation on a war with both, than ally with either. no, sir, i never will consent to rush into the polluted, detestable, distempered embraces of the whore of england, nor truckle at the footstool of the gallic emperor. but the embargo has failed, it has been triumphantly asserted on one side of the house, and echoed along the vaulted dome from the other. if it has, it is no cause of triumph; no, indeed, sir; but it is a cause of melancholy feelings to every true patriot, to every man who does not rejoice in the wrongs of his country. why has the measure failed of expected success? the gentleman from maryland (mr. key) used an argument incomprehensible to me, as an argument in his favor; on my side it is indeed invincible. he has established it was the evasion of the laws which prevented their being effectual. he tells you that certain evaders of the laws have so risen up in opposition to them, that the president of the united states was obliged to issue his proclamation in april last; that this proclamation told the british cabinet the people had rebelled against the embargo--but i will pass over the subject; it imposes silence on me, because it must speak daggers to the hearts of some men. my friend from virginia (mr. randolph) urged one argument against the embargo, which, to be sure, is a most serious one. he asked if we were prepared to violate the public faith? i hope not, sir. i beg to be excused for asking him (for i know he scorns submission as much as any man) if submission will pay the public debt? to that gentleman's acute and comprehensive mind, the deleterious consequences of the present system of the belligerents to our interests, must be glowing, self-evident. he will see that their present measures carry destruction to the most valuable interests, and are subversive of the most sacred rights of the people; and if they are submitted to, every thing dear to an american must be afflicted with the slow, lingering, but certain approaches of consumption. i had rather go off at once. i have no opinion of a lingering death. rather than the nation should be made to take this yoke, if so superlative a curse can be in store for us, may the hand of heaven first annihilate that which cannot be nurtured into honor. i had much rather all should perish in one glorious conflict, than submit to this, so vile a system. but we are told, that the embargo itself is submission. indeed, sir! then, with all my heart, i would tear it from the statute book, and leave a black page where it stood. is the embargo submission? by whom is it so called? by gentlemen who are for active offence? do these gentlemen come forward and tell you that that the embargo is submission? no such thing, sir. my memory deceives me, if any man who voted for the embargo thinks it submission. they are the original opponents of the embargo who call it submission, and who, while they charge you with the intention, are by every act and deed practising it themselves. it is incorrect, sir. every gentleman who has spoken, and who has told you that the embargo is submission, has acknowledged the truth of the resolution under consideration; it has not been denied by a single individual. suppose then we were to change its phraseology, and make it the preamble to a resolution for repealing the embargo, it will then read: "whereas the united states cannot without a sacrifice of their rights, honor, and independence, submit to the late edicts of great britain." therefore resolved, that the embargo be repealed, and commerce with great britain permitted. do these two declarations hang together, sir? that, because we cannot submit to the edicts of the belligerents, we will therefore open a free trade with them? the first part of the proposition is true, no man has denied it; the addition which i have made to it then, is the discordant part, and proves the embargo is not submission. i wish to know of gentlemen, whether trading with the belligerents, under their present restrictions on commerce, would not be submission? certainly, sir. is then a refraining from so doing, submission? in a word, is resistance submission? was the embargo principle considered submission in the days of the stamp act? did the nation call it submission when it was enacted under general washington? was it so considered by the republicans, when resorted to for redress against the primary violations in ? or was it ever contended that had not the embargo been raised, the terms of jay's treaty would have been worse? do gentlemen of the "old school" undertake to say that the father of their country submitted then to george iii.? i hope not, sir. if the embargo was not submission under george washington, it is not under thomas jefferson. again, i ask, were the principles of the embargo submission in -' -' ? but it has been replied, it is not meet that the remedies of that day should be applied to the present case. why not, sir? the disease was the same; and lest gentlemen have forgotten what it was, i will tell them how the old congress described it: "you exercised unbounded sovereignty over the sea, you named the ports and nations to which alone our merchandise should be carried, and with whom alone we should trade." draw the parallel, sir, and if the remedy of that period will not suit the present crisis, let us look out for others. i will not stop here; i am willing to go further; i would carry fire and sword into the enemy's quarters; but i would first exhaust every means to preserve peace. you will excuse me, sir, for giving an opinion in this place, which, perhaps, some gentlemen may think does not result from the subject immediately before us. i will tell you what description of people in the united states are most anxious that the embargo should not be repealed. it is a new sect, sir, sprung up among us--ultra-federalists. they are the persons, in my belief, who are most desirous the embargo should be continued. they see that upon its removal a war with great britain follows. an alliance with her is the object nearest their hearts--not a resistance of the wrongs and insults practised by her. if this embargo be submission, if non-intercourse be submission, if a prompt preparation for war be submission, i ask them what is it to sit still and do nothing? do you mean to submit? come out and tell the nation whether you will or will not resist the orders in council--let us know it--it is desirable that we should know it--it will conduce to the public weal. i, for one, sir, will vote to continue the embargo, because i do still consider it a coercive measure--as the most deadly weapon we can use against great britain. i am induced to consider it so, when i take a view of what is the nature of our products--what is the nature of her exports and imports--what is the nature of her wants, and what her capacity and means of supply. look at the west indies, where the embargo has a decided ascendency over every other measure you can adopt. you will find that her colonial and navigation system has, in that quarter, never been maintained since the revolution. perhaps i ought, in presuming to speak further about the west indies, to apologize to the gentleman from maryland, (mr. key,) not indeed for his very courtly conduct, because if a man is ignorant, he does not like to be told of it. the gentleman will be pleased to pardon me, if i blunder on in my ignorant way, and talk a little more of that part of the world. [mr. key explained that he had not intended any reference to the gentleman from south carolina in his remarks.] i am extremely obliged to the gentleman for his explanation. entertaining great respect for his talents, i am happy to find, upon such authority, the charge is neither applicable nor intended. the colonial system has been always regarded as essential to all the vital interests of great britain. every relaxation of that system has excited murmurs and great discontent in the mother country, and yet they have been constantly produced by the wants of the colonies. would they have been permitted in favor of the united states, could those wants be supplied from any other quarter? i must contend, then, that their profitable existence depends upon an intercourse with the united states, notwithstanding every thing which has been said to the contrary. i do not mean to involve the idea of absolute starvation; much less to insinuate that the embargo is so coercive as to humble great britain at our feet; far from it--but i do say, from the nature of their products, their profitable existence depends upon us. there are not contained within the whole british empire at this time, whatever they may have been previous to the american revolution, supplies for the home and colonial consumption. will gentlemen tell us from whence they are to procure the principal articles of provisions and lumber? i might rest the argument in safety on these articles alone; these are essential, and of our produce. all the evasions of the embargo have been made with a view to that supply; enforce it, and from whence will they procure the article of lumber? it bears a higher price and is more scarce in great britain, even in ordinary times, than in the west indies. the opinion that nova scotia and canada were adequate to that supply, has been long since abandoned. the articles of their produce require a constant supply of our materials, some of them cannot be procured from any other part of the world; of the lumber received, we have heretofore furnished ninety-nine parts out of one hundred. but we are told they can raise corn. who denies it? i will grant to gentlemen all they ask on that point, and add, too, that their corn is actually more valuable per bushel than that of this country; but when their labor and industry is directed to that object, what becomes of their cotton, sugar, and coffee cultivation? what becomes of the immense revenues derived from those sources? gentlemen must not forget that at least one-third of her revenue accruing from commerce, is derived from the west india trade alone. i do not know that i should be wrong, if i were to say from coffee and sugar only. if you drive them to the cultivation of corn for subsistence, they must necessarily abandon the cultivation of their most valuable staples. and do gentlemen believe great britain is willing to sacrifice all these considerations to a refusal to do you justice? we do not require justice, for all we ask of her is to abstain from plundering us. we say to her "hands off;" we wish not to come into collision with you; let us alone. these sacrifices will not be much longer hazarded, unless indeed she is deluded into a belief that she has sufficient influence, in this country, to excite disaffection and insurrection, and thereby remove the cause of pressure. another objection with me to removing the embargo is, it will betray a timid, wavering, indecisive policy. if you will study the sentiments contained in mr. canning's note, you will find they afford a lesson of instruction which you ought to learn and practise upon: "to this universal combination his majesty has opposed a temperate, but a determined retaliation upon the enemy; trusting that a firm resistance would defeat their project; but knowing that the smallest concession would infallibly encourage a perseverance in it." i beg the house to draw instruction from this otherwise detestable paper--it preaches a doctrine to which i hope we shall become proselytes. a steady perseverance in our measures will assist us almost as much as the strength of them. i conceive the supplies necessary for the maintenance of the war with spain and portugal will fairly come into the calculation. it has become the duty and interest of great britain to maintain the cause of spain and portugal--she has made it so. where will those supplies be drawn from? does she produce them at home? certainly not; for it cannot be forgotten that the average importation of flour alone at liverpool is ninety thousand barrels annually. the baltic is closed against her. the demand must be great; for spain and portugal in times of peace have regularly imported grain for their own consumption. and here i will observe, there is no attribute in my nature which induces me to take sides with those who contend for a choice of masters. so far as they are fighting for the right of self-government, god send them speed; but at this peculiar crisis i think it extremely important that our sympathies should not be enlisted on the side of either of the contending parties. i would, therefore, from spain and portugal withhold our supplies, because through them we coerce great britain. but that pressure which great britain feels most, is most alive to, is at home. the last crop is short, and injured in harvesting; wheat is fourteen shillings the bushel, and rising. her millions of poor must be supplied with bread, and what has become almost equally important, she must furnish employment for her laborers and manufacturers. where can the necessary supply of cotton be procured? for, thank god! while we are making a sacrifice of that article, it goes to the injury of great britain who oppresses us, and whose present importation is not equal to one-half her ordinary consumption. if the manufacturer is to be thrown out of employ, till that raw material which is now the hypothesis of the day, is produced from africa, the ministry who are the cause of it will not long rule the destinies of that nation. no, sir, i am not alarmed about supplies of cotton from africa. nor am i to be frightened out of the embargo by a fear of being supplanted in the market, from that quarter; they must be but little read indeed in political economy, who can dread a competition with barbarians, in the cultivation of the earth. another strong inducement with this house to continue and enforce the embargo is, that while it presses those who injure us, it preserves the nation in peace. i see no other honorable course in which peace can be maintained. take whatever other project has been hinted at, and war inevitably results. while we can procrastinate the miseries of war, i am for procrastinating; we thereby gain the additional advantage of waiting the events in europe. the true interests of this country can be found only in peace. among many other important considerations, remember, that moment you go to war, you may bid adieu to every prospect of discharging the national debt. the present war of all others should be avoided; being without an object, no man can conjecture its termination; for as was most correctly observed by my friend, (mr. macon,) the belligerents fight everybody but one another. every object for which the war was originally begun and continued to , has since that time become extinct. the rupture in the negotiations of that day was made not on points affecting directly the british interest, but grew out of the indirect concern she felt in maintaining those urged by russia, which power, having since declared war against great britain, has obliterated the then only existing object of the war. embark in it when you please, it will not procure you indemnity for the past; and your security for the future must ultimately depend on the same promises, which you can obtain by peaceable means. i have no disposition, sir, to hazard the interest of my country in a conflict so undefined, so interminable! but, say gentlemen, it is certainly not submission to trade to those ports which the edicts of the belligerents have not prohibited us from trading with. granted--i will not enter into a calculation on the subject, as to how much importance the trade would be of to us. the chairman of the committee of ways and means has told you it would be contemptible in amount; but, sir, i say this, because i consider it expedient to continue the embargo, to withhold our supplies from those who need them, i will not permit you to go to those countries. repeal the embargo in part! no, sir. give merchants one single spot anywhere out of the jurisdiction of your own country, as large as the square of this house, and they would carry away the whole of our surplus produce. give them a little island on which to place the fulcrum of their lever, and archimedes-like, they will move your whole trade. let them go to demarara, to gottenburg, or any other burg, and it is to the whole world. but the trade to spain and portugal has been held up as highly profitable to the merchants of the united states. the gentlemen who venture this opinion have not, perhaps, considered the subject with all the attention it is entitled to. it appears to me to be demonstrable from the documents, and the knowledge of circumstances which we possess, that great britain, with the extension of plunder the orders in council warranted, is not satisfied. she was not content that she had laid a snare whereby she intercepted our whole commerce to europe. she then permitted us (no doubt from extreme moderation) to trade with the french colonies, taking care, at the same time, to force a direction of that trade in a channel which could not fail to yield a tributary supply to her exchequer. she has now interdicted, by orders secretly issued, that commerce also. the language of cochrane's proclamation cannot be misunderstood. what a harvest he would have reaped from the robbery of your merchantmen, had the embargo been raised, as was expected by the british cabinet, at the commencement of the session. the orders in council would have taken all your property going to continental europe, and those of the admiralty would have swept the west india traders. i believe the idea of enjoying a free trade to spain and portugal is altogether illusory. mr. canning has told us, not _in totidem verbis_, but certainly in effect, that we should be permitted to trade with those countries, only under the orders in council. in answer to the proposition made by mr. pinkney to suspend the embargo as to great britain, for a suspension of the orders in council as to the united states, the british minister replied in the most peremptory manner possible. here let me observe, that had that suspension been agreed to, the embargo would have co-operated with the orders in council against france. it would have been even much more efficacious than those orders, inasmuch as our own regulations would have interdicted all commerce with france. the professed object of the orders in council, retaliation on the enemy, cannot therefore be real--they originated, as they have been executed, in a spirit of deadly hostility against us. that the operation of those orders would be extended to spain and portugal, should the embargo be repealed in part, i infer from this positive assertion of the british secretary: "it is not improbable, indeed, that some alterations may be made in the orders in council, as they are at present framed; alterations calculated not to abate their spirit or impair their principle, but to adapt them more exactly to the different state of things which has fortunately grown up in europe, and to combine all practicable relief to neutrals with a more severe pressure upon the enemy." here is not only a denial of suspension, but a threat that alterations will be made, (no doubt in tender mercy to us,) not to abate their spirit, but to adapt their operation more extensively to our ruin. what is the state of things alluded to? let every gentleman who seeks after truth, candidly inquire for himself, what is the state of things which mr. canning considers has so fortunately grown up in europe. can it be any thing but the revolutions in spain and portugal? if the orders in council are not to be impaired, but their operation rendered more applicable to the present state of things, _a fortiori_, you are to be cut off from the south of europe, in the same manner as you are from france and her dependencies. and are you ready to repeal the embargo under such a threat as this? this note, sir, is sarcastic to the last degree; in it i read insult added to the atrocious injuries my country has received; there is but one part of it which can be looked at with patience, and that is the valuable admonition i have read. some gentlemen have gone into a discussion of the propriety of encouraging manufactures in this country. i heard with regret the observations of the gentleman from virginia on this subject. i will be excused by him for offering my protest against those sentiments. i am for no high protecting duties in favor of any description of men in this country. extending to him the equal protection of the law, i am for keeping the manufacturer on the same footing with the agriculturist. under such a system, they will increase precisely in that proportion which will essentially advance the public good. so far as your revenue system has protected the interests of your merchants, i am sincerely rejoiced; but i can consent to no additional imposition of duty, by way of bounty to one description of persons, at the expense of another, equally meritorious. i deplore most sincerely the situation into which the unprecedented state of the world has thrown the merchant. a gentleman from massachusetts has said, they feel all the sensibility for the mercantile interest, which we feel for a certain species of property in the southern states. this appeal is understood, and i well remember, that some of their representatives were among the first who felt for our distressing situation, while discussing the bill to prohibit the importation of slaves. i feel all the sympathy for that interest now, which was felt for us then; but i ask if it is not sound policy to encourage the patriotism of our merchants to support still longer the sacrifices, which the public exigencies call for, with spirit and resolution? if they should suffer most from our present situation, it is for their immediate advantage that we are contending. i must be allowed in continuation to say, that, although i do not profess to be one of the exclusive protectors of commerce, i am as willing to defend certain rights of the merchant, as the rights of the planter. thus far i will go; i will assist in directing the physical strength of the nation to the protection of that commerce which properly grows out of the produce of the soil; but no further. nor am i therefore disposed to limit the scene of his enterprise. go up to mocha, through the dardanelles, into the south seas. search for gums, skins, and gold, where and when you please; but take care, it shall be at your own risk. if you get into broils and quarrels, do not call upon me, to leave my plough in the field, where i am toiling for the bread my children must eat, or starve, to fight your battles. it has been generally circulated throughout the eastern states, in extracts of letters, said to be from members of congress, (and which i am certainly sorry for, because it has excited jealousies, which i wish to see allayed,) that the southern states are inimical to commerce. so far as south carolina is concerned in the general implication, i do pronounce this a gross slander, an abominable falsehood, be the authors who they may. the state of south carolina is now making a most magnanimous sacrifice for commercial rights. will gentlemen be surprised when i tell them, south carolina is interested, by the suspension of our trade, in the article of cotton alone, to an amount greater than the whole revenue of the united states? we do make a sacrifice, sir; i wish it could be consummated. i should rejoice to see this day all our surplus cotton, rice, flour and tobacco burnt. much better would it be to destroy it ourselves, than to pay a tribute on it to any foreign power. such a national offering, caused by the cupidity and oppression of great britain, would convince her she could not humble the spirit of freemen. from the nature of her products, the people of south carolina can have no interest unconnected and at variance with commerce. they feel for the pressure on boston, as much as for that on charleston, and they have given proofs of that feeling. upon a mere calculation of dollars and cents--i do from my soul abhor such a calculation where national rights are concerned--if south carolina could thus stoop to calculate, she would see that she has no interest in this question--upon a calculation of dollars and cents, which, i repeat, i protest against, it is perfectly immaterial to her whether her cotton, rice, and tobacco, go to europe in english or american vessels. no, sir, she spurned a system which would export her produce at the expense of the american merchant, who ought to be her carrier. when a motion was made last winter for that kind of embargo which the gentleman from maryland (mr. key) was in favor of; for he says he gave his advice to do that very thing, which if adopted would cut up the navigation interest most completely, (an embargo on our ships and vessels only;) south carolina could have put money in her pocket, (another favorite idea with the gentleman,) by selling her produce to foreigners at enormous prices; her representatives here unanimously voted against the proposition; and her legislature, with a magnanimity i wish to see imitated throughout the united states, applauded that vote--they too said they would unanimously support the embargo, at the expense of their lives and fortunes. she did not want an embargo on our ships, and not on produce. no, sir; she knows we are linked together by one common chain--break it where you will, it dissolves the tie of union. she feels, sir, a stroke inflicted on massachusetts, with the same spirit of resistance that she would one on georgia. the legislature, the representatives of a people with whom the love of country is indigenous, told you unanimously, that they would support the measures of the general government. thank god, that i am the representative of such a state, and that its representatives would not accept of a commerce, even at the advice of a gentleman from maryland, which would profit themselves at the expense of their eastern brethren. feeling these sentiments, i cannot but say, in contradiction to what fell from the gentleman from virginia, (mr. gholson,) i should deplore that state of things which offers to the merchant the lamentable alternative, beggary or the plough. i would say to the merchant, in the sincerity of my heart, bear this pressure with manly fortitude; if the embargo fails of expected benefit, we will avenge your cause. i do say so, and believe the nation will maintain the assertion. it is with reluctance i feel compelled, before i resume my seat, to make a few observations in reply to what fell from the gentleman from maryland (mr. key) yesterday. the gentleman commenced his address by contradicting the statements made by a gentleman from massachusetts, and my worthy friends from virginia and georgia, (messrs. randolph and troup.) he told you their districts could not feel the embargo most, as it was in his the sufferings were most severe. i shall not waste the time of the house by an inquiry into the truth of this assertion; nor, sir, will i enter into a competition of this sort. i aim at a distinction far more glorious. the state i represent in part, bears the embargo the best. this it is my pride to boast of. there, sir, there are no murmurs, no discontent at the exertions of government to preserve the rights of the nation. and as long as respect for the honor, and a hope of the salvation of the country exists, so long will they bear it, press as hard as it may. the gentleman told you, in speaking of the maryland elections, that the film is removed from the eyes of the people, and that in discerning their true interests, they saw it was the embargo, and not the orders in council, which oppresses them. he must feel confident indeed in the knowledge that he is two years in advance of his constituents, or he would not have ventured such an assertion. [mr. key explained that he had said the film was removed, and the people saw that their distress arose more from the embargo than from the orders in council.] mr. williams continued: i have no intention to misrepresent the gentleman, but i understood him to say that the orders in council did not affect the continental market, but the berlin decree; that the embargo caused all the pressure at home; that the orders in council had no part in producing that measure, and therefore i infer as his opinion, that the orders in council have not injured us. [mr. key said that the few observations which he had made on this subject, were in reply to the gentleman from tennessee, (mr. g. w. campbell,) that the people should be no longer deluded. in answer to this mr. k. said he had observed that the people were not deluded--that the film was removed from their eyes, and that he then had gone on to show that the depression of produce arose from the embargo. but that he never had meant to say that the berlin decree and orders in council were not injurious, because they lopped off a large portion of our commerce.] i understood the gentleman to say (observed mr. w.) that it was very strange we would not trust our merchants upon the subject of the embargo, who were the best judges. i wish to represent the gentleman's sentiments correctly, and shall not consider him impolite, if i have misstated him, should he again stop me. why, sir, is it strange? are the merchants the guardians of the public honor? this i conceive to be the peculiar province of congress, because to it alone has the constitution confided the power to declare war. will the gentleman trust the merchants with the guardianship of his own honor? no, sir, he chooses to protect it himself. and would he advise the nation to pursue a course disgraceful, and to which he would not expose himself? i will not trust the merchants in this case, nor any other class of men; not being responsible for the national character, they will trade anywhere, without regard to principle. so true is this, dessalines felt no uneasiness when informed of the law prohibiting all intercourse with st. domingo; he replied, "hang up a bag of coffee in hell, and the american merchant will go after it." i am not sure that, in the evasions of the embargo, some of them have not already approached near its verge: certain i am, that, in a fair commerce, such is the enterprise and perseverance of their character, they will drive their trade as far as it can be driven. no, sir, i will not trust the merchant now, because he would do the very thing which the gentleman seems to wish, trade under the orders in council. the embargo should be removed, because, says the gentleman, it has operated as a bounty to the british trade. i should be disposed to doubt this, if for no other reason than a knowledge of who advocates its removal. before the embargo was laid, agricultural labor in the british west india islands, particularly on sugar estates, could scarcely support itself. i refer the gentleman to the documents printed by order of parliament, and the memorials of the agent of jamaica. he will find that the planters are in a distressed situation, not from their failure in the cultivation of the soil, but from the enormous duties on their produce in the mother country. are the extravagant prices of articles of the first necessity, superadded to their former embarrassments, to operate as a bounty on their trade? i should be extremely gratified if the gentleman will inform us what would have been the amount of bounty on the trade, if evasions of the embargo had not taken place. if the price of flour has been sixty dollars per barrel, and other articles in proportion, what would have been the price had there been no evasions of the law? they could not have been procured at all: and yet we are told the embargo is a bounty on british trade! when the gentleman was, i had like to have said, justifying the orders in council, he should have favored us with a vindication of the _smuggling_ proclamation also. such a degree of corruption and of immorality never before, in any one paper, disgraced a civilized nation. the citizens of a country, at peace and in amity, enticed to evade their own laws! is such an act calculated to induce the belief that the embargo operates as a bounty on british trade? i shall not enter upon another question stirred by the gentleman, the constitutionality of the embargo law; the subject has become so stale, that even he could scarcely make it interesting. it has been laid asleep--a solemn adjudication has taken place and put it at rest. but the gentleman will excuse me for observing he made a most unfortunate allusion in the course of his argument. he said it was strange that, not having the power delegated to us to tax exports, we should undertake to prohibit them. the orders in council, which if the gentleman did not justify, he was certainly very tender of, do exercise that very power of taxing our exports, which by the constitution we are prohibited, and that too when they are destined to a government equally sovereign and independent with that of great britain. we have been referred by the gentleman to the history of the revolution, and after a kind of encomium on the resources of great britain, the triumphs of her navy and her present imperious attitude, he demanded to know if we can expect she will yield to us now, when during the revolution she maintained a war against the whole world, at the same time that she kept us at bay seven years and succeeded with every nation but her own sons--will she truckle at our feet now? the gentleman knows we do not seek to make her truckle at our feet; we wish her no injury; we ask of her no boon whatever; we only entreat her to let us alone; to abstain from wanton, unprovoked acts of oppression. what is the object of this language? is it to tell us she never will redress our wrongs; or is it to divert us from a prosecution of our rights? the contest was very different with her at that time from what it is now. she then contended against the dismemberment of her empire. will the gentleman say she values the principles of the orders in council, as she did the sovereignty of her colonies? what will the gentleman discover, by examining the history of the period he referred to? england, at that time, when france, spain, holland, and the united states, were opposed to her, when the armed neutrality in the north of europe assailed her, when all these brought the principle of embargo to bear upon her, was nearer ruin than she ever was before or since. i refer him to playfair's tables for the year ; there he will find the very principle proven, for which we are now contending. does great britain now prize the plunder of your merchantmen, the impressment of your seamen, insult to your national flag, as much as she did the sovereignty of the soil? certainly not; and yet she must, precisely the same, or she will not hold out now as she did then. when i recollect that her necessary annual expenditure is greater than the gross rent of all the landed property in her kingdom; that the armed neutrality affected her so materially, that the same principle is brought into operation again; that by withholding our custom, our supplies, our raw materials, we must necessarily destroy a large portion of her revenue, i cannot but hope she will see her own interest in redressing our injuries. this is all we contend for, allow the experiment to be made; if not, at least propose some better remedy. but said the gentleman, at the close of the revolutionary war we alone triumphed over the arms of great britain; defeat befell all the rest of the world. i will not contest that point with him, as he is old enough to speak from experience. we were informed by the gentleman, that it was the berlin decree, and not the orders in council, had destroyed our trade to the continent of europe. here too we are directly at points. the gentleman has not made himself master of his case, or has totally mistaken his evidence. i hold a document in my hand which, perhaps, the gentleman may object to, as coming from the opposition party in great britain; it is the depositions of sundry merchants of great wealth and respectability, taken before the british house of lords, on the subject of the orders in council. here mr. w. read from the depositions the following questions and answers: "if the american embargo were removed, and the orders in council still continued in force, in that case would the witness resume his shipments? "to a very small amount. "for what reason? "because i do conceive, that there would be such great impediments, indeed a total annihilation of trade from the united states of america to the continent of europe, that i could not expect to receive any returns for the goods i sent out; and another reason would be my apprehension that a war between the united states and this country would be the consequence of those orders in council. "what is the reason that the orders in council prevent the witness sending our cotton goods in ships in ballast? "i believe i stated my apprehension that they might produce a war between the two countries; another reason was, i could not expect to get remittances, and a total annihilation of the trade between the united states of america and the continent of europe, from whence a great part of my remittances must be derived. "if the american embargo in general were taken off, and the orders in council to be continued, would his trade in that case revive? "i certainly should feel no inducement to export goods to america while the orders continued. "why not? "i should apprehend that hostilities between this country and america would be the consequence of continuing the orders in council. "would the orders in council have any other effect as to discouraging the trade? "they would have considerable effect in regard to our remittances. "in what manner? "by bringing all the produce of america to this country, they must occasion such a vast glut in the market, that the produce would be worth little or nothing. "in what degree would it affect the dealers in those commodities brought to this country, as to their remittances to this country? "the consequence i apprehend would be, that great parts of the bills must go back protested; because the produce, for which the bills are drawn, would sell for scarcely the value of the freight and charges. "does the witness conceive, from his knowledge of the american trade, that if the whole of the american produce, which according to an average of years had been carried to the continent of europe, and to great britain, was now to be imported into great britain alone, and the orders in council to continue; whether it would be possible to export from great britain to the continent, so much of the american produce as should prevent a glut of the american produce remaining in the market? "i think it would be impossible. "have you lately written to your correspondents in america respecting shipments of american produce to this country? "i have. "to what effect have you so written? "i have written that in case of submission to these orders of council, in case such a thing should take place, to suspend all operations. "did you give this advice to your american correspondents, upon the supposition that america would acquiesce in the orders in council? "certainly not, i stated it as a thing by no means likely; but, as there is nothing impossible in this world, that if it were so, not to move; that in case they were acquiesced in, not to attempt any business." considering (continued mr. w.) these are the sentiments (delivered under the sacred obligation of an oath) of that very description of men who the gentleman believes are the best judges and ought to be trusted, i am warranted in saying, they prove his position wholly unfounded. the gentleman's project last year was to lay the embargo on our ships and vessels, and to dispose of our produce, the effect of which would have been destruction to our own vessels, constant encouragement to those of great britain. i beg him to remember, that if two or three years hence, he should not stand as high with the american merchants as he could wish, it may be fairly attributed to this friendly protection of their immediate interests, which he would have extended to them. the gentleman was equally unfortunate in saying, the destruction of st. domingo had caused such a demand for sugar, that the cultivation of cotton in the british west india islands had been abandoned; he is not well versed on the subject, the fact not being as he has stated it. however great an impetus the destruction of st. domingo may have given to the cultivation of sugar and coffee, in the british west indies, it certainly had no effect in any way on that of cotton, the quantity of that article formerly exported from thence being too small to have any influence whatever. our cotton will never be supplanted from that quarter. could the sugar estates be converted to cotton plantations, so depressed has been their situation, that conversion would have been long since effected. nor, sir, is it true that the cultivation of cotton in the british west india islands has been abandoned; on the contrary, it has been regular though slow in its increase, compared with that of coffee. crops of that kind are frequently precarious, owing to a natural enemy of the plant in those islands, and therefore the cultivation has not kept pace with the demand. i heard the gentleman with pain and mortification, i repeat it, with pain and mortification i heard him declare that nations like individuals should pocket their honor for money. the act is base in an individual, in a nation infinitely worse. the gentleman was corrected by his colleague (mr. nelson) on this subject. he evidently, to my apprehension, expressed an opinion, that money was to be preferred to honor. he told us that honor in arbitrary governments was identified with the monarch, who went to war for his mistress; that in republics honor consisted in the opportunities afforded to acquire wealth, and by way of illustration said, we pocketed our honor for money in paying tribute to the barbary powers, for the security of a paltry trade. does the gentleman mean to assimilate a tribute exacted by great britain with that paid to algiers? or does he mean to be understood as advising us, because we purchase peace with barbarians, involving no honorable consideration, to barter for a pecuniary reward, with great britain, our rights, our honor, and our independence? detestable as this inference is, it results from his arguments. repeal the embargo, throw open your trade to great britain; you can put money in your pocket by it. i want no substitute. sir, if my tongue was in the thunder's mouth, then with a passion would i shake the world and cry out treason! this abandonment of our rights, this sacrifice of our independence, i most solemnly abjure. astonished indeed am i, that a gentleman so eloquent, so well qualified to uphold the honor and dignity of his country, should so abandon them! is it possible such doctrine should be advocated on the floor of congress? has it come to this? was it for this the martyrs of the revolution died? is this great continent and the free millions who inhabit it, again to become appendages of the british crown? shall it again be held, in its orbit by the attractive, the corruptive influence of the petty island of great britain? no. sooner may you expect the sun with all the planetary system will rush from their shining spheres, to gravitate round a pebble. remember, sir, it is no longer a contest singly about the carrying trade, or the impressment of seamen, or the insult to the national flag, but all united with the rights and attributes of sovereignty, even to the violation of the good old united states. you stand on the verge of destruction, one step, one movement backwards will stamp your character with indelible disgrace. you must now determine whether you will maintain the high station among nations, to which the virtues, the spirit of the people have elevated you, or sink into tributary vassalage and colonization. by all your rights, your duties, your awful responsibility, i charge you "choose ye this day whom ye will serve; but as for me and my house, we will serve the lord." mr. culpeper spoke in opposition to the report. mr. cook moved to adjourn. mr. j. g. jackson called for the yeas and nays on the motion; but a sufficient number did not rise to justify the taking them. motion to adjourn negatived. mr. cook renewed the motion, observing that he had some remarks to make, which might occupy the house some time.--carried, to , and the house adjourned. saturday, december . mr. lewis, from the committee for the district of columbia, presented a bill supplementary to the act, entitled "an act for the establishment of a turnpike company in the county of alexandria, in the district of columbia;" which was read twice, and committed to a committee of the whole on monday next. the bill sent from the senate, entitled "an act further to amend the judicial system of the united states," was read twice, and committed to mr. marion, mr. holland, and mr. kelly, to consider and report thereon to the house. mr. nelson, from the committee appointed the eleventh ultimo, on so much of the message from the president of the united states as relates to the military and naval establishments, presented a bill authorizing the appointment and employment of an additional number of navy officers, seamen and marines; which was read twice, and committed to a committee of the whole on monday next. _foreign relations._ the house again proceeded to the consideration of the first resolution of the report made by the committee of foreign relations. mr. cook addressed the house at considerable length. mr. r. jackson said: mr. speaker, not having been in the habit of public speaking, it is with great diffidence i rise, to make any observations on the resolutions now under consideration, after so much has been said upon the subject. but, sir, knowing the deep stake that the portion of citizens which i have the honor to represent, and the united states at large, have in the present embarrassed state of our political affairs, was i to remain silent, sir, i should feel as if i was guilty of treachery to their interests. i shall not attempt to follow gentlemen in their arguments who have gone before me in the debate, but confine myself to making such observations on the resolutions and the state of our political affairs, as appear to me to be necessary and proper. by the first resolution we are called upon to declare "that the united states cannot, without a sacrifice of their rights, honor and independence, submit to the late edicts of great britain and france." why we are called upon to make this declaration, i cannot conceive. i do not see the use of it, unless it is considered by the committee as a kind of test act, which they think ought to be administered to every member of the house to ascertain whether they are of sound principles or not. i do not like such abstract propositions; i think them useless, as nothing can come from them in a legislative way; no bill can be formed from it; however, i do not see anything at present to prevent me from voting for it. by the second resolution we are called upon to declare "that it is expedient to prohibit, by law, the admission into the ports and harbors of the united states of all public or private armed or unarmed ships or vessels belonging to great britain or france, or to any other of the belligerents having in force orders or decrees violating the lawful commerce and neutral rights of the united states; and also the importation of any goods, wares, or merchandise, the growth, produce, or manufacture of the dominions of any of the said powers, or imported from any place in the possession of either." here, sir, i shall take the liberty to dissent from the committee, for i do not think it to be expedient to join them in such a resolution as this. for i would ask, what are we to promise to ourselves from such a system as this; what will be the probable effects of it? will it compel the great belligerent powers to do us justice for past injuries and secure us for the future? if i thought it would, i would most cheerfully vote for it. but, sir, i have no reason to suppose it will, for we have now had considerable experimental knowledge of the effects of the embargo system, both as it respects ourselves and foreign powers, and we have found from experience, that, as a coercive measure, it has had no effect. it has not compelled france or england to do us justice, or to rescind their unlawful edicts and decrees, issued against neutral commerce. and those nations having now experienced the effects of the embargo for nearly one year, whatever alarm it might have given them, when first laid on, that alarm has ceased. and we have it from high authority, that france cares nothing about it, and that in england, owing to the great events now passing in europe, it is forgotten. and shall we still, with all this information and experience, adhere to this system, and still think we can legislate france and england into a comitance to do us justice, and bring them to the bar of justice in this way? far be it from me to censure any one for the part they have taken in endeavoring to maintain the rights of our country, and giving security to the interest of our citizens. but, sir, i think, in the business of legislation, that the same line of conduct ought to be pursued, that we would pursue in the common and ordinary proceedings of life; for should any of us undertake to do any thing, suppose it be to get a vessel afloat that had been stranded, and the means employed were totally inadequate to its accomplishment, should we not abandon those means and try some other? we have tried the embargo, and found it altogether ineffectual, and we have no reason to suppose, that by a further continuance of it, it will answer any of the purposes for which it was intended. i will now take some view, as it appears to me, of what has been, and will be the effect of the embargo, if continued, as it respects ourselves. the burden of it has already been very great, on a large proportion of our citizens. it has been grievous, and very sore. for how otherwise can it be, when we consider that all the navigation business, from one end to the other of these united states, is totally stopped, excepting a small remnant of our coasting trade, and that remnant under very great embarrassments; and all that numerous class of our citizens, dependent on commerce, deprived of their usual means of gaining a livelihood, and in consequence thereof thousands of them have been obliged to live on their former earnings, and consume that little property they had treasured up for their future support? and if the embargo is continued, the inevitable consequence must be, bankruptcy to many of our merchants, and absolute distress, misery, and want, to a large proportion of our citizens who live in the seaport towns, and great embarrassments to all classes of citizens throughout our country. and if this system is continued, we must incur the hazard of having civil commotions in our country, for experience has proved, that when great distress prevails among the people, and that distress arises from political measures, which the people are divided in sentiment upon, the hazard is very great that civil commotions will take place. some gentlemen have undertaken to show how much we have already lost by the embargo. but i shall not go into any calculation of this sort, for i am convinced that it defies calculation; it is impossible to follow it into all its turnings and windings. it is enough for me to know that the loss is immense, and that we have received such a shock by it, that it will require a long time to come, to recover from it. gentlemen have also endeavored to point out such parts of the union as they think are suffering the most by the embargo. there is no doubt but that it does bear harder upon some portions than on others, and that it is unequal in its operation. but, sir, my idea is, that it bears the hardest upon that part of our citizens where they are the most dependent on commerce for their living; and this being the case, in nearly as great a degree, perhaps, with the citizens of rhode island as in any part of the union, it follows that my constituents are suffering as much as any portion of the united states. but, sir, its pressure is upon the whole country, and it carries misery throughout our land; and if continued, the distress occasioned by it must still be much greater than it has been, and will become intolerable in some parts of the union, and the consequences may be dreadful to the nation. and as to its effects on france or england, for myself, i am of opinion, that the emperor of france and king of italy is well pleased with it, for, as it is observed by mr. canning, "it certainly comes in aid" of his grand design of destroying the commerce of the english, and trying to give that nation the consumption of the purse; and, until he is satisfied with that speculation, he will wish us to keep on the embargo. and since spain and portugal have refused any longer to be under the control of bonaparte, and have bid him and all his hosts defiance, and have connected themselves with the english, i believe the english care nothing about the embargo, but would give us their free leave to keep it on forever; for, sir, it gives the greatest activity to their colonies of canada and nova scotia, and must be the means of increasing their settlements with astonishing rapidity. experience has already proved to them, that their colonies in the west indies can be maintained without us, and spain and portugal and their colonies having become open to them, to vend their manufactures, and with what can be smuggled into the continent and into our country, in spite of all the laws that can be made against it, will furnish them market enough; and our navigation being all laid up, and out of the way, their ships will obtain great freights from spain and portugal to the colonies, and from the colonies back to the mother country; and in consequence of our retiring into a state of dignified retirement, as it has been called, they will have nearly the whole trade of the world in their own hands. and it appears to me, sir, in every point of view that i can place the subject, if we continue the embargo, it will operate to distress ourselves a hundred times more than it will anybody else. i will now, as i have heard the call so frequently made, that, if you do not like this system, point out a better, and if it appears so, we will adopt it--i will, therefore, point out what appears to me a better line of conduct for the united states to pursue, and if i am so unfortunate as not to find a man in this house of my opinion, i cannot help it, for i feel myself constrained, from a sense of duty to my suffering constituents, to inform this house and the nation, that i wash my hands of it, and protest against it. i therefore, sir, with great deference to superior abilities, propose that the law imposing an embargo on all ships and vessels of the united states, and all the laws supplementary thereto, be immediately repealed, and that we authorize our merchants to arm their vessels, under proper regulations, in defence of our legitimate and lawful commerce; that the government from time to time afford the commerce of the country such protection as may be found necessary and prudent. if this was done, i have no doubt but that the citizens of the united states would soon be relieved from their present embarrassments and distress. this, sir, would produce a circulation in the body politic, our planters and farmers would immediately find a sale for their surplus produce, our merchants would find employ for their vessels, and all that numerous class of citizens who have heretofore been engaged in the active and busy scenes of commerce, would again find employ in our seaports. in lieu of beholding dismantled ships covered with boards and mats, we should see in them spars and rigging aloft, and the ports whitened with their sails, and again hear the cheering sound of industry. but it has been said that if the embargo was removed and our merchants should send their vessels to sea, most of the property would be taken by one or other of the great belligerent powers, and thus be lost to our country; and that we have so little trade left that it is not worth our notice. but let us examine this, and see if it be so. could we not, sir, in the present state of the world, trade to england, scotland, and ireland, to sweden, spain, and portugal, to some of the islands in the mediterranean, and some of the turkish ports on that sea; to nearly all the ports in the east and west indies, to both sides of the continent of south america, and some other places, and have the obstruction occasioned by the embargo laws removed from our own coast? is all this trade of no importance to trading people? gentlemen have gone into statements to show, from our former trade, how much of our domestic produce could be exported to the different parts of the world, under the present embarrassments, occasioned by the great belligerent powers; but for myself i put no confidence in such statements. i consider trade may in some measure be compared to water; if the channel it has been used to run in becomes obstructed, it will find new channels to vent itself in. for instance, sir, suppose we should adopt the resolution offered by the gentleman from new york (mr. mumford). he mentioned that we could trade to the little swedish island of st. bartholomews, in the west indies. now suppose we should look over our former exports to this island in any one year, what should we find the amount to be? i do not know, sir, perhaps one hundred thousand dollars, but double, triple it if you please, and what comparison would it bear with the amount that would be shipped there under his system? would it not immediately become a distributing point for the whole of the west india islands, and the amount increased to an astonishing degree, when compared with what used to be exported there? and so it would be in other parts of the world. the articles will go where they are wanted, in a greater or less degree; and if they cannot be carried directly, they will find their way in an indirect manner. and as to the danger of the property being captured and confiscated, i think our merchants and underwriters are the most competent to judge of that. they do not wish the government to become guardians for them in this respect. all they wish for government to do is to let them manage their own affairs in their own way; and the government to afford the commerce of the country as much protection as shall be for the real interest of the whole nation. have we not seen, in the summer past, with what eagerness the merchants in the united states availed themselves of the special permission granted to fit their vessels in ballast, and go abroad to collect debts? and was not every old and obsolete claim hunted up that existed in the country, to make out the amount necessary to avail themselves of this permission? is not this proof that the merchants did not consider the risk very great? and were not several hundred sail of vessels fitted out under this permission; and have they not nearly all returned back to the united states in safety? many of these vessels were insured to the west indies, out and home, at premiums of about eight and nine per cent., and this in the midst of the hurricane season. this proves that the underwriters did not estimate the political risk at more than two or three per cent., for the natural perils in time of profound peace would be considered equal to six per cent. and the calculation of the underwriters has proved correct, for they have made money by the business. and was our embargo removed, i am of opinion that the premiums of insurance would not be more than six or seven per cent. to any port in great britain, and about the same to spain and portugal. this, if correct, proves that the political risk is not considered to be very great by those who are the best judges of it. but, sir, it appears to me there are many gentlemen in this house who think it will not do to trade, until all political risk is removed out of the way. if we wait for this, we shall never trade any more, for the natural perils of traversing the ocean always exist, and always remain nearly the same, allowing for the variation of the seasons. and the political perils always exist, but they vary according to the state of political affairs among the nations of the world. but, sir, i have repeatedly heard it said, and the same thing is expressed in the report of the committee, that our situation is such, that we have no other alternative than a war with both great britain and france, submission, or a total suspension of our commerce. the committee have, sir, after a long statement, brought our affairs up to this point, and i do not like any of the alternatives out of which they say we must make a choice, for i do not believe that we are reduced to this dilemma; and i will not agree to go to war with both england and france, nor will i agree to submit, or to totally suspend our commerce. but i will agree to give our merchants liberty to arm their vessels, under proper regulations, in defence of our legitimate commerce, and leave it to them to send their vessels for trade where they please; and if any of them are so unwise as to trust their property to france, or to any ports in europe where the french control, let them fight their way there if they choose. i see no other course, sir, that we can pursue, that will be so much for the interest and honor of our country, as the one pointed out. the american people are a cool, calculating people, and know what is best for their interest, as well if not better than any nation upon earth, and i have no idea that they will support the government in a ruinous war with england, under the present existing circumstances, nor in measures depriving them of all trade and commerce. mr. mumford then offered a few observations in answer to the remarks of mr. gholson of virginia. during the discussion, six different motions were made for an adjournment, the last of which, offered by mr. gardenier, was carried--yeas , nays . tuesday, december . on motion of mr. thomas, _resolved_, that a committee be appointed to inquire into the expediency of dividing the indiana territory; and that they have leave to report by bill or otherwise. _ordered_, that mr. thomas, mr. kenan, mr. bassett, mr. taggart, and mr. smilie, be appointed a committee pursuant to the said resolution. on motion of mr. thomas, the resolutions of the house of representatives of the indiana territory, which were read and ordered to lie on the table on the fourteenth ultimo, were referred to the select committee last appointed. mr. marion, from the committee to whom was referred, on the tenth instant, the bill sent from the senate, entitled "an act further to amend the judicial system of the united states," reported the bill to the house without amendment: whereupon the bill was committed to a committee of the whole to-morrow. the bill sent from the senate, entitled "an act for the relief of andrew joseph villard," was read twice and committed to a committee of the whole to-morrow. on motion of mr. alexander, _resolved_, that a committee be appointed to inquire whether any, and if any, what farther provision ought to be made by law, prescribing the manner in which the public acts, records, and judicial proceedings of one state, shall be proved and given in evidence in another state, and the effect thereof; and that they have leave to report by bill or otherwise. _ordered_, that mr. alexander, mr. david r. williams, mr. john g. jackson, mr. key, and mr. quincy, be appointed a committee, pursuant to the said resolution. a message from the senate informed the house that the senate have passed a bill, entitled "an act supplemental to an act entitled 'an act for extending the terms of credit on revenue bonds, in certain cases, and for other purposes;'" also, a bill, entitled "an act to change the post route from annapolis to rockhall, by baltimore to rockhall;" to which they desire the concurrence of this house. _foreign relations._ the following is mr. gardenier's speech entire: mr. speaker: i had intended to defer the delivery of my sentiments upon the second resolution, until that resolution should come before the house. but the course which the debate has taken, has produced a change in my original intention. that the first resolution is an unnecessary one, because no clear, definite, practical results can flow from it, appears to me self-evident. are the people of this country suspected of an intention to abandon their rights or their independence? indeed, sir, they are not. why then is it, that we are called upon to make a new declaration of independence? or was the administration conducted in such a manner as to make the firmness and patriotism of the nation itself doubted abroad? even i, sir, who am not suspected of a blind confidence in our rulers, will not advance such a charge. the true question is not, is the matter expressed in this abstract proposition true? but, is it necessary that a resolution containing it should be passed by this house? i agree with the gentleman from tennessee (mr. campbell) that it would be no less ridiculous to pass this resolution than to pass one that the sun shines. allowing both to be true, both are equally unnecessary to be embodied in a resolution of this house. begin this system of abstract legislation, and where are you to stop? sir, it partakes too much of the character of disturbed, revolutionary times. to such a blasphemous height was this notion of voting abstract propositions, or declarations, or truisms (call them what you will) carried at one time in france, that their convention very gravely decreed "that there was a god!" this was a self-evident truth; and being so could not become more so by being decreed. and if the edicts of great britain and france go to the destruction of our "rights, honor and independence," our voting that such is their operation, makes it neither more nor less true. but, it is said, a select committee have placed the resolution before us, and we are bound to vote whether the assertions it contains are true or false. why, sir, if i should offer a resolution that at this moment the sun shines, and some one should second me, would it be contended that this house ought gravely to proceed to the question? and if any member should say, "i vote against this resolution because it is too true to be made more so; and because, therefore, i think it unnecessary to be passed," that he, sir, should be considered blind? again, gentlemen, some too with whom i am in the habit of acting, say, at the worst, the resolution is harmless--it ties you down to no specific course, and therefore you may as well vote for it; that to vote against it, will afford a handle against our popularity--that the resolution itself is an artful one--a trap set to catch the federalists, as it will hold them up to suspicion, if they vote against it--for the vote will appear upon the journals, when the argument is not to be found there. well, sir, if it be in truth a trap to catch poor federalism in, i, for one, sir, am willing to be caught. i never deceived the people whom i have the honor to represent, either by giving a vote to the propriety of which my judgment was opposed, or by professing opinions which i did not entertain; and, sir, i trust in god i never shall. the applause of my constituents is dear to me. but i would rather strive to deserve it--than, not deserving it, to receive it. yes, sir, my course shall be always a plain one--a straightforward course. i have not acquired the confidence of my constituents by increasing their delusions. i have always labored to disperse them. at my first election to this house, a decided majority of them were opposed to my politics. the thought has often distressed me. but the cause of that distress exists no longer. and, therefore, sir, i will go on discharging my duty with the most scrupulous obedience to my judgment, and where the weight of a hair ought to turn the scale, it shall turn it. but if i had no other objection against this abstract "harmless" resolution, there is one which would be decisive: i would reject it on account of "the company it keeps." the committee, for reasons which i shall not stop to disclose, have thought it important to introduce this, by way of propping the second one. that second one, sir, the undoubted object and inevitable tendency of which my whole soul recoils from, which i abhor and deprecate, as fatal to the prosperity and happiness of my country--as the grave of its honor--and i fear i do not go too far when i add, of its independence! that resolution is not alone submission to france; but, under the pretence of resisting her infractions of the laws of nations, her violations of the sacred rights of hospitality, her laughing to scorn the obligation of treaties--it makes us submit to all--to encourage a perseverance in all. nay, sir, it throws the whole weight of our power into her scale, and we become not only the passive, but, to the whole extent of our means, the active instruments of that policy which we affect to abhor. this, sir, unhappily, is capable of the most clear demonstration; and, in the proper place it shall appear so. i enter now upon the discussion of the second resolution. and although i am aware how little professions of sincerity and embarrassment are generally regarded, and, indeed, how little they ought to be regarded, yet i cannot approach this awful subject without declaring that i feel as if i was about to enter the sanctuary of our country's independence; and i tremble with the same fearful distrust of my powers, the same distressing perplexity which would embarrass me if i had entered the labyrinth in which was concealed the secret of that country's honor, prosperity and glory. i do feel, sir, that we should enter upon the discussion of this question divested of all the prejudices and passion of party--no less than all foreign predilections and animosities--with clean hearts, sir; yes, hearts seven times purified, to prepare them for the discharge of the sacred, the holy duties of this awful crisis. he who can come to this debate with other motives than to save his country, placed as it is on the brink of a dreadful precipice, deserves to be heard nowhere but in the cells of the inquisition. the sound of his voice should never be suffered to pollute the hall of the representatives of the american people. but he who, thinking that he has traced the causes and the progress of our misfortunes, and that he may, perhaps, point the nation to a path which may lead it back to the prosperous position it has been made to abandon, would be a traitor to the state, if any considerations could keep him silent. in my view, sir, we have gone on so long in error--our affairs have been suffered to run on, year after year, into so much confusion, that it is not easy to say what should be done. but if it is magnanimous to retract error, certainly it is only the performance of a sacred duty, which their servants owe the people, to abandon a system which has produced only disappointment and disasters hitherto, and promises only ruin and disgrace in future. the time, sir, has been, when the government was respected at home and abroad, when the people were prosperous and happy, when the political body was in high, in vigorous health; when america rejoiced in the fulness of her glory, and the whole extent of the united states presented a scene unknown in any other country, in any other age. behold now the mournful contrast, the sad reverse! we are "indeed fallen, fallen from our high estate!" the nation is sick--sick at heart. we are called upon to apply a remedy; and none will answer which shall not be effectual. no quack prescriptions will answer now. and the cure, to be effectual, must not persevere in a course which has not only produced no good, nor promises any; but which has brought the patient (if i may use the figure of the gentleman from maryland, mr. nelson) to his present forlorn condition. such a perseverance may seem to argue great hardihood, or, if you please, spirit; but, after all, it is nothing but the desperate frenzy of a losing, half-ruined gamester. it becomes, therefore, at last, indispensable to take a retrospective view of our affairs. and, if in taking this view, we should find the cause of our disasters, we must not fear to contemplate it, to hold it up; and, having grown wise by experience, we must not be prevented by false pride, from profiting by it; we must not shrink from the exercise of a virtue because it is also an imperious duty. and i hope that no gentleman who hears me is unwilling to sacrifice the popularity of the administration to the salvation of the country. permit me then, sir, to go back to that period in our history which immediately preceded the adoption of our present form of government. what was then our condition? the people were poor--for there was no commerce to assist agriculture--there was no revenue for general objects. many states were hardly able to collect enough for state purposes. and, of course, there was no such thing as public credit, although there was an immense floating debt. we had no reputation abroad--there was no confidence even at home. but, sir, we had a washington, and we had the pupils of washington, men whom he knew to be faithful in the cabinet, for he had found them faithful in the darkest stages of the revolution. the nation, happily, had not been deluded--they knew their friends by their deeds--they had not yet yielded to the sweet fascination of the seductive popular declamations of these latter times. men were known by what they did, not by what they said. these men, sir, had the sagacity to discover the secret springs of our prosperity and happiness and glory. and they were able to strike them with a powerful hand, and with a powerful hand they did strike them; and, instantly, as if by enchantment, the scene changed. suddenly, agriculture raised her drooping head, for commerce beckoned her to prosperity. your people began to pay their debts and to become rich. public credit was restored; the treasury began to fill readily. sources of revenue were explored, certain of continually increasing, equally certain of being never exhausted, except by folly and madness. indeed, sir, so perfect was the financial machinery that it admitted of no improvement. it required no more skill in the successors of the illustrious hamilton to make this instrument "discourse most excellent music," than it would a child to play a hand-organ. an end was put to our indian wars; our algerine captives were redeemed--our reputation was established abroad, and the united states assumed their just rank among the nations of the earth! this was, indeed, a work worthy of the illustrious patriots who achieved it. it was the result of that profound practical wisdom, which, never yielding to the deception of brilliant theory, saw the public interest with a clear eye, and pursued it with a firm and steady step; and it was no wonder that it was successful. let me add, too, that all this was accomplished without taxation being felt by the people. but this great prosperity was not without interruption. it received a stroke, sir, deep and dangerous, and almost mortal, from the tremendous system of spoliations commenced by great britain in . misfortunes cast themselves across the path of nations as well as individuals. they are often unavoidable, and no nation can hope to be always exempt from them. the wisdom of the human mind is displayed in putting an end to them in private affairs, and in public that statesman only is great who can overcome and disperse them, who, though he cannot avert the bolt, can prevent the ruin it threatens. at the period of which i speak, we had such statesmen. yes, sir, the alarm was depicted on every countenance--though the nation staggered to its centre under the severity of the blow it had received, yet was the administration equal to the dreadful emergency--it had brought the nation into existence and prosperity, and it was equal to the preservation of both. and they showed it not by venting their rage in idle reproaches, but by applying efficient remedies to the diseases of the country. let it be remembered that justice was to be obtained from great britain; from that power which is now represented and held up to our indignation as "proud, unprincipled, imperious, and tyrannical;" and which certainly was at least as much so then; for then she had on her side all europe engaged in combination against france, and france was alone as england is now. in short, she was then on the continent of europe what france is now. yet, from this same country did our government succeed in obtaining not only reparation for the spoliations committed, but a surrender of the western posts also. i repeat, sir, all this was accomplished when great britain was not less imperious in disposition, but more formidable in power than she is now. and surely all this ought to appear strange and wonderful indeed to those who have been deluded into the idea that, when great britain was struggling, gasping for existence, the same thing was impossible: that has with ease, and under more inauspicious circumstances, been accomplished, which the men now in power pretend they have attempted in vain. still strange as it may seem to them, it is a fact--it is history. well, sir, how was this miracle brought about? by a process very plain and simple. the administration was sincerely desirous of peace; and that single object in their eye, they exerted their abilities to obtain it and consequently did obtain it. the instructions of the minister breathed a desire of peace--of reconciliation upon terms compatible with the honor of both nations. the administration did not send with their minister a non-importation act, a proclamation, or a permanent embargo, by way of exhibiting their love of peace. the refinement in diplomacy which sends with the negotiator a new cause of quarrel for the purpose of accelerating the adjustment of an old one, was not yet invented. no, sir, mr. jay, (and the name of that stern, inflexible patriot and republican, i always repeat with delight and veneration, because he is a patriot and a republican)-- [here mr. upham took the advantage of a pause made by mr. g. to observe that, as the gentleman appeared considerably exhausted, &c., he would move an adjournment, which was taken by ayes and noes and lost--ayes , noes --mr. g. voting in the affirmative.] mr. g. continued.--mr. jay had no disposition to bully the british government into justice; he had no objection that they should have all the merit of returning voluntarily to a sense of justice, provided his country might have the benefit of substantial reparation. the stern sage of the revolution became the courteous ambassador, and, appealing "to the justice and magnanimity of his britannic majesty," he demanded redress and he obtained it. the british government saw that ours was sincerely disposed to be at peace with them, and, pursuing the natural direction of their interests, there was no difficulty in making peace. our plundered merchants were compensated--paid, sir, _bona fide_. we did not purchase redress; we did not pay for the surrender of the western posts, which were our right, and out of the purchase money indemnify a portion of our own citizens. no; the payment was to all; and in right old-fashioned "british gold," all counted down on the nail. i wish that i could, with equal truth, say the same thing of more modern treaties. and now, sir, compensation being made by great britain for the spoliations on our commerce, the western posts being surrendered, a commercial treaty being established, the dark cloud which obscured our prospects being dispersed, the sun of our prosperity once more burst forth in all its radiance, and again all was well. i care not what were the objections of the day, begotten in the brain of faction, and cherished in mobs; under the treaty we were prosperous and happy, and that one fact is enough for me. bad as the treaty was represented to be, and the worst feature of it most probably was, that it was a british treaty--bad as it was, the continuance of its existence has been precisely co-extensive with the progress of our prosperity--it made our people rich and happy; and, bad as it was, they would have cause to rejoice indeed if the present administration had furnished them with just such another. france saw with uneasiness the return of a good understanding between america and great britain. and she, in her turn, let loose her plunders upon our commerce. again the wisdom of our government was called into action, and again it produced the most happy result. what did they do? an embassy was despatched to france, redress was demanded, but the ministers were not received, nor could be, till a _douceur_--a tribute--was paid. from a nation which returned such an answer, redress could not be expected; and there was an end of negotiation. britain and france had acted toward us with equal injustice--the disposition of our government, its desire of peace, was the same with both. its conduct was the same to both, but france would not even hear our demands. the american government were at no loss how to act. the case was a plain one. one nation robs another--that other demands reparation--prevarication is the reply. it requires no skill to see, in such a case, that, to coax the offender into reparation is impossible. accordingly, our government did not hesitate as to the course it should pursue; they did not wait to be spurred on by any government to an assertion of their rights; they would not leave it one moment doubtful whether they had the disposition and the courage to assert them. they proceeded immediately to annul the french treaty, to pass non-intercourse laws; they built ships of war, and sent them upon the ocean, to protect our commerce. they were not so obstinate but that they could receive instruction, even from the author of the "notes on virginia," who, in that work, so judiciously recommends a navy. our little armament picked up the french cruisers, great and small; the coast, the sea, was soon cleared of them. and our commerce again visited every clime in safety. i will here remark, sir, that, during all this time, the staple commodities (particularly of the northern states) suffered no diminution, but an increase in price. well, sir, france very soon discovered that she had nothing to gain, and we nothing to lose by such a state of things. even then, when she had some naval power, she discovered this. she was, therefore, very soon disposed to change it. a treaty was patched up, in the end, and something like the appearance of redress provided for. now, sir, for the result. a former administration were able to settle our differences with great britain, although she governed all europe, although she was unjust, haughty, and imperious. now the same thing is said to be impossible! a former administration were able, after a fair negotiation had failed, to bring france, who had then some maritime power, on her marrow-bones. and now, when she has none, again the same thing is impossible! how happens all this? sir, i am afraid your administration have committed most capital mistakes. they have been unwilling to learn wisdom from the experience and success of their predecessors. i do fear, and i shall be obliged to prove, that, on the one hand, they have been actuated by, certainly they have never (following the example of a former administration) manifested a sincere disposition to accommodate our difficulties with great britain. and, on the other hand, they have in no instance shown to france that bold front which, in more unpromising times, brought the terrible republic to her senses. these two errors, these wilful, wanton aberrations from established policy, are the true causes of all our misfortunes. it is owing to them that we have, if we believe the administration sincere, two enemies who are already at war with each other, and we, the only instance of the kind since the creation of the world, are to step out a third and distinct belligerent, a sort of ishmaelite belligerent; our hand against every nation, and every nation's hand against us. we are in a situation which defies hope, one in which we have but a single miserable consolation, that though it promises nothing but ruin, yet it is so ridiculous, so ludicrous, that we can but smile at it. these remarks are extorted from me a little out of their order. i return to the period of the restoration of peace between the united states and france. the administration now ( ) passed into the hands of other men. they received a country, rich, prosperous, and increasing in prosperity. a people contented and happy; or discontented only with those who had been the authors of their prosperity. they received a treasury full and overflowing, giving a vigor and a spring to public credit almost unknown before, and to the reputation of the country a dignity unsullied; they found us in peace and friendship with all nations, our commerce whitening every sea, and rewarding agriculture for all its industry, and every one sitting in peace under his own vine and fig tree. our country presented to the animated philanthropist one uninterrupted display of liberty, of gaiety, and of felicity. oh! happy, happy period of our history--never, never, i fear to return. and, if ever truth dropped from the lips of man, it was when the nation was declared to be in "the full tide of successful experiment." never were the destinies of a nation in more wonderful prosperity committed to men. that prosperity had been acquired at a price no less unparalleled, at the expense of the destruction and disgrace of those whose wisdom and energy had produced it. the new men, sir, were not required to bring order out of confusion; that had been done already. they were not called upon to lay the deep and strong foundations of national prosperity and happiness; that had been done already. they were not enjoined to "multiply" the talents committed to their stewardship; that was unnecessary--they were merely commanded to preserve them undiminished. they were not required to create a paradise--but to keep uninjured that which was committed to their guardianship. they promised, indeed; they were so rash, in the fulness of their exultation, as to promise to do more; but folly alone could believe them; and for breaking this promise i forgive them, for to do more was impossible. and if they had but preserved unimpaired, if they had not totally destroyed the inestimable treasures intrusted to them, i would have endeavored to overcome my resentment, my indignation, and my despair. in performance of their lofty promises, in disregard of sacred duties, what have they done? in what condition do they leave the country, which, eight years since, "in the full tide of successful experiment," fell into their hands? they present to us, sir, the gloomy reverse of all it was. the people discontented and distressed--all becoming daily more and more poor--except, indeed, that class of rich speculators, whose wealth and whose hearts enabled them to prey upon the wants of their countrymen. the despair and dismay of are returned! the prosperity of twenty years is annihilated at one stroke! the sources of revenue are dried up. the treasury, indeed, may be now full--but it must continually diminish--and, without its usual supply, it must soon be empty. we have still some credit. but how long, sir, can that be maintained, when it is known that we have no longer the means, allowing us to possess the disposition, to fulfil our pecuniary engagements? when you cannot collect a cent upon imposts, and dare not lay a direct tax, how far you will be able to obtain money on loan, is, to say the least of it, very questionable. but, i will hasten to finish the contrast i was about to make. commerce, sir, has perished, and agriculture lies dead at her side--for these twin sisters must flourish or die together. no nation in the world is our friend--our paradise is becoming a wilderness; our soil is stained with the blood of our own citizens; and we look around us, in vain, for one solitary benefit to compensate us for all the dreadful effects of the present system. perhaps, sir, i may be answered: "though all you have said be true, though our former prosperity exists no longer, it is ungenerous, it is unjust to impute the change to the agency of the administration. what has happened could not be prevented." though such a rebuke were reasonable, i will still insist that the administration, if they deserve no censure, are certainly entitled to no praise, and can ask for no confidence. if they have not been the authors of the public calamities, they have not, like their predecessors, discovered the ability to prevent them from coming thick upon us. if their hearts are honest, their heads have not discovered much soundness. no set of men, however ignorant, however stupid, could have placed the country in a worse or a more deplorable situation. the truth is plain and palpable. judging of the wisdom of the administration by the result of its measures, i cannot sing praises to them for their skill and ingenuity in diplomacy. no, sir; i delight in that diplomacy which makes the poor rich; which makes industry prosperous; which spreads contentment through the land, and happiness among the people. i delight in the diplomacy, whose skill and wisdom can be read in the countenance of my countrymen, and makes the face of my country the evidence of its prosperity. i like not, i abhor that diplomatic skill which can be found only in a book! which has produced nothing but calamity, and whose praise is written in the blood of my countrymen. but, sir, how happens it that we still remain under the distresses occasioned by the belligerents? is there, indeed, a physical impossibility of removing them? from great britain, and that, too, when she had the whole continent on her side, we could once obtain justice, not only for the past, but security for the future. from france, too, we could once obtain justice, but now we can gain justice from neither. what change, sir, has occurred in the state of things to produce this strange impossibility? our commerce is more an object to great britain now, than it was formerly--and france can oppose to us no resistance on the ocean. and yet no remedy can be found for our calamities! sir, i will not be the dupe of this miserable artifice. what has been done once can be done again by employing the same means. the administration have committed greater errors. they have conducted all their affairs in such a style as to leave great britain no room to doubt that, when they asked for peace, they wanted it not. to this cause may be traced all our difficulties, so far as they proceed from that power. as it regards france, i fear that they have not acted the proper, the manly part. in short, sir, they have not pursued toward england the policy which saved us in , nor toward france the policy which was successfully opposed to french rapacity and french obstinacy in ' . i think an error was committed, when, affecting to desire an amicable arrangement with great britain, instead of treating with her as a nation not to be intimidated, much less bullied, the non-importation act was passed. for, sir, if she was so proud, so haughty, so imperious, as some gentlemen delight to describe her, then to bring her to justice by assuming an attitude of menace, was evidently impossible. when, therefore, you passed the non-importation act, under a pretence that it would be a successful auxiliary to friendly negotiation, what could you expect but to alarm the pride, and the haughtiness, and imperiousness of that nation? and, doing that, how could you expect an amicable result? no, sir, it was not, and it could not be expected. you obtained a treaty indeed--but it was from a fox ministry. yet such as it was, it was not so good as a jay's treaty, and the executive rejected it without so much as laying it before the senate. in support of the embargo system, gentlemen say, if we suffer our commerce to go on the ocean, or wherever it goes, it will be crippled either by france or great britain. although this is not true in the extent laid down, yet it will hold tolerably true as respects the european seas. from what gentlemen are pleased to represent as the impossibility of sailing the ocean with safety, result (say they) the propriety and necessity of the embargo system. and they say, it is not the embargo, but the decrees and orders which are the true cause of all we suffer; that the embargo, so far from being the cause of, was advised as a remedy for the evils we endure. well, sir, for the sake of the argument, be it as they say. has the embargo answered? is there any probability, the slightest indication, that it will answer? has it operated, to any perceptible extent, except upon ourselves, during the twelvemonth it has been in existence? if, then, neither the remembrance of the past, nor the prospect of the future, gives the least encouragement to hope, why will gentlemen persist in the system? and that too, sir, at an expense to their own country so enormous in amount? will they go on obstinately amid all the discontents, or clamors (as gentlemen in very anti-republican language call the voice of the people) in the eastern and northern states? and that from mere obstinacy--an obstinacy not encouraged by the least glimmering of hope? if i could be pointed to a single fact, produced by the operation of the embargo, which would prove that it had any other effect on the disposition of great britain than to irritate--or any other on france than to please, than to encourage her to a perseverance in that system of injustice which we pretend to oppose, but to the policy of which we give all our support with an infatuated wilfulness, and which, therefore, increases the hostility great britain has felt from the measure--if they could show me, sir, that the embargo will bring either to terms, i would abandon the opposition at once, and come heart and hand into the support of your measures. the other day, the gentleman from south carolina (mr. williams) almost persuaded me that it ought to operate upon great britain; but i looked and i found it did not, and i was convinced it would not. but, have gentlemen reflected that, if all the evils were drawn from pandora's box, to vex great britain, you could have hit on none so well calculated to call out all her resistance, and all her obstinacy, as this same expedient, the embargo! if she yields to us, under the pressure of such a system, she discloses to us the secret of her independence! sir, the embargo is war; it was intended as such against great britain. and she understands its meaning and its character too well for us to disguise it, under a pretence of its being a mere precautionary municipal measure. its efficacy as a coercive measure has been too often and too loudly boasted of in this house, to make its real object a secret to her. nay, in so far as the great and prominent feature of war is coercion; in so far as war is always intended to make the adversary yield that which he will not yield voluntarily; in so far, are the embargo and the non-importation act war. each was intended to coerce great britain to yield to us points which it had been ascertained she would not yield voluntarily. it was a system of coercion, a new-fangled sort of philosophical experimental war; novel, to be sure, in its character, but, to all substantial purposes, war. instead of bloodshed, there was to be ink shed--instead of bayonets, pens--instead of the bloody arena, huge sheets of paper! whenever great britain shall yield to the coercion of the non-importation, embargo, or non-intercourse system, she virtually tells the people of the united states, "we are in your power whenever you choose to make a claim upon us, whether just or unjust; threaten us with an embargo and a non-intercourse, and you bring us to your feet." does any gentlemen believe, even allowing the pressure of the embargo to be great upon her, that she can yield, that she can afford to yield? that she can admit that we have her always perfectly in our power? sooner would she give up in battle--sooner would she see her soldiers retreating before our bayonets; sooner would she see her armies perish under our valor, than acknowledge herself the slave of this magic wand. her children might grow to be men, and she might try the fortune of another day; the hair of samson might grow on again, and his strength be renewed; but in yielding to the chance of the embargo, she places her existence in our hands, and becomes dependent upon our will for the existence of her sovereignty. sir, the king of england cannot, he dare not, yield to our embargo. but, sir, he has not told us that he considers our embargo hostile to him; nor has our government ever told him that it was; such a declaration has never been put to paper. no, sir; when you look into the correspondence, it would seem that the embargo was never intended as a coercive measure, nor even understood so by great britain. every thing on both sides is conceived in a sincere spirit of "friendship." our non-importation act, our proclamation, our embargo, are all acts of friendship and kindness toward great britain, for aught we find there. and great britain issues her orders in council in a reciprocating spirit of amity toward us. she is not offended with our non-importation act, nor our embargo. not at all. her orders are not intended to harm us. she means nothing in the world, but simply to retaliate upon france--and she is sorry that almost the whole force of the blow falls upon us, but it is unavoidable. she, by the laws of nations, has as perfect a right to retaliate upon france as we have to make our innocent municipal regulations--and she is full as sorry that her retaliation system should wound us, as we are that our municipal regulations should incommode her. sir, this diplomatic hypocrisy (begun, i acknowledge, by us) is intolerable. sir, there is not one word of truth in the whole of it, from beginning to end. the plain state of the case is this: anterior to the non-importation act, the british treaty had expired--there were points of dispute, particularly concerning the impressment of seamen, which could not be adjusted to the satisfaction of our government. in this state of things, either we ought to have gone to war, or we ought not. if we had intended to do so, stronger measures should have been resorted to than a non-importation act. if we had not intended to do so, the act should never have been passed. those who passed it could have but one of two objects in view; either to coerce great britain to the terms we demanded--or, by vexing and irritating her, to raise up in due time an unnecessary fictitious quarrel, which (as this country is known to be extremely sensitive of british aggression) might ultimately end in a real old-fashioned war. no men could have been so weak as to calculate upon the first result. as to the other, the wisdom of the calculation is pretty strongly proved by the situation in which we now find ourselves. sir, this is the whole mystery--and it must be explored--it must be exposed. we must understand the real character of our controversy with great britain--the real character, intent, and aim, of the different measures adopted by us and by her, before we can hope to heal the wounds our peace has received, or to restore the prosperity we have been unnecessarily made to abandon. i know, sir, how difficult it is to overcome matured opinions or inveterate prejudices; and i know, too, that, at this time, the individual who shall venture to lay open "the bare and rotten policy" of the time, makes himself the butt of party rancor, and strips himself to the unsparing "lacerations of the press." but these are considerations too feeble to deter me from my duty. [mr. g. appearing much exhausted, and mr. quincy having intimated to the house that mr. g. suffered under a pain in the side, moved for an adjournment. the speaker inquired whether mr. g. yielded the floor? mr. g. replied, he had himself little inclination to continue his remarks, but the house appeared so eager to hear him, (a laugh,) he hardly knew what answer to make. however, he said, he would give the floor. the house then adjourned.] the object, sir, of our present deliberations is, or ought to be, to relieve our country from the distresses under which it groans; to do this, we should be prepared to legislate with a single eye to the welfare and happiness of the nation. it is of the first necessity that we should deliberate with calmness, if we mean to apply an effectual remedy to the diseases of the state. in the remarks which i had the honor to make yesterday, i was constrained to draw a contrast between the measures and prosperity of former times and those of the present times. under circumstances of the same character, we were formerly able to overcome our misfortunes. now we are not. and i did this for the purpose of impressing upon the house an opinion, that if the administration had practised upon the principles of their predecessors, all had been well; or, that if retracing their steps, or relinquishing the path of error and misfortune, they would still be the learners of wisdom and experience, it would not even now be too late to retrieve the affairs of the country. if i know my own heart, i did not make the comparison from any invidious purposes; but merely to turn the minds of gentlemen back to former times; that they might reflect upon the perils and calamities of those times, and the means by which an end was put to them; but in doing this, i could not avoid paying the tribute of deserved praise and of sincere gratitude to the men under whose agency we prospered abundantly. in contrasting the conduct of the present with that of the former administration, i meant to subserve no purposes of party. nay, sir, i could have much desired to have been spared the necessity of presenting that contrast before the nation. i could have wished to have avoided these references, lest i might excite party feeling in others; lest i might appear to be governed by them myself. but truth could not be attained by any other course, and i have been compelled to take it. the first resolution, contained in the following words, was divided, so as to take the question first on the part in italic: "resolved, _that the united states cannot, without a sacrifice of their rights, honor, and independence, submit to the late edicts of great britain_--and france." the question was then taken on the first clause of this resolution, and carried--yeas , nays . the question being about to be put on the remaining part of the resolution, viz: on the words "and france"-- the question then recurred on the second member of the first resolution; and the same being taken, it was resolved in the affirmative--yeas , nays . the main question was then taken that the house do agree to the said first resolution as reported to the committee of the whole, in the words following, to wit: "_resolved_, that the united states cannot, without a sacrifice of their rights, honor, and independence, submit to the edicts of great britain and france:" and resolved in the affirmative--yeas , nays, . saturday, december . a division of the question on the resolution depending before the house was then called for by mr. david r. williams: whereupon, so much of the said resolution was read, as is contained in the words following, to wit: "_resolved_, that it is expedient to prohibit, by law, the admission into the ports of the united states of all public or private armed or unarmed ships or vessels belonging to great britain or france, or to any other of the belligerent powers having in force orders or decrees violating the lawful commerce and neutral rights of the united states." the question then recurring on the first member of the original resolution, as proposed to be divided on a motion of mr. d. r. williams, and hereinbefore recited, a division of the question on the first said member of the resolution was called for by mr. gardenier, from the commencement of the same to the words "great britain," as contained in the words following, to wit: "_resolved_, that it is expedient to prohibit, by law, the admission into the ports of the united states of all public or private armed or unarmed ships or vessels belonging to great britain." the question being taken that the house do agree to the same, it was resolved in the affirmative--yeas , nays . a farther division of the question was moved by mr. elliot, on the said first member of the resolution, on the words "or france," immediately following the words "great britain," hereinbefore recited: and the question being put thereupon, it was resolved in the affirmative--yeas , nays. . and on the question that the house do agree to the second member of the said second resolution, contained in the words following, to wit: "or to any other of the belligerent powers having in force orders or decrees violating the lawful commerce and neutral rights of the united states:" it was resolved in the affirmative--yeas , nays . the question then being on the residue of the said resolution contained in the following words: "and, also, the importation of any goods, wares, or merchandise, the growth, produce, or manufacture, of the dominions of any of the said powers, or imported from any place in the possession of either:" the question was taken, and resolved in the affirmative--yeas , nays . the main question was then taken that the house do agree to the said second resolution, as reported from the committee of the whole house, and resolved in the affirmative--yeas , nays , as follows: yeas.--lemuel j. alston, willis alston, jun., ezekiel bacon, david bard, joseph barker, burwell bassett, william w. bibb, william blackledge, john blake, jun., thomas blount, adam boyd, john boyle, robert brown, william a. burwell, william butler, joseph calhoun, george w. campbell, matthew clay, joseph clopton, richard cutts, john dawson, joseph desha, daniel m. durell, john w. eppes, william findlay, jas. fisk, meshack franklin, francis gardner, thomas gholson, jun., peterson goodwyn, edwin gray, isaiah l. green, john heister, william helms, james holland, david holmes, benjamin howard, reuben humphreys, daniel ilsley, john g. jackson, richard m. johnson, walter jones, thomas kenan, william kirkpatrick, john lambert, john love, nathaniel macon, robert marion, william mccreery, john montgomery, nicholas r. moore, thos. moore, jeremiah morrow, john morrow, roger nelson, thos. newbold, thomas newton, wilson c. nicholas, john porter, john rea of pennsylvania, john rhea of tennessee, jacob richards, matthias richards, benjamin say, ebenezer seaver, samuel shaw, dennis smelt, john smilie, jedediah k. smith, john smith, henry southard, richard stanford, clement storer, john taylor, george m. troup, james i. van allen, archibald van horne, daniel c. verplanck, jesse wharton, robert whitehill, isaac wilbour, david r. williams, alexander wilson, and richard wynn. nays.--evan alexander, john campbell, epaphroditus champion, martin chittenden, john culpeper, samuel w. dana, john davenport, jun., jas. elliot, william ely, barent gardenier, john harris, richard jackson, robert jenkins, james kelly, philip b. key, joseph lewis, jun., matthew lyon, josiah masters, william milnor, jonathan o. mosely, timothy pitkin, jun., josiah quincy, john russell, james sloan, l. b. sturges, samuel taggart, benjamin tallmadge, jabez upham, philip van cortlandt, and killian k. van rensselaer. and on the question that the house do concur with the committee of the whole in their agreement to the third resolution, in the words following, to wit: _resolved_, that measures ought to be immediately taken for placing the country in a more complete state of defence: it was unanimously resolved in the affirmative. on motion of mr. george w. campbell, _ordered_, that the second resolution be referred to the committee appointed on so much of the message from the president of the united states, at the commencement of the present session, as respects our relations with foreign powers, with leave to report thereon by way of bill or bills. on motion of mr. george w. campbell, _ordered_, that the third resolution be referred to the committee appointed, on the th ultimo, on so much of the said message from the president of the united states as relates to the military and naval establishments, with leave to report thereon by bill, or bills. monday, december . _miranda's expedition._ mr. love called for the order of the day on the report of the committee on the subject of the thirty-six persons confined in carthagena, south america. the following is the resolution reported by the committee: _resolved_, that the president of the united states be _requested to adopt the most immediate and efficacious means in his power to obtain_ from the viceroy of grenada, in south america, or other proper authority, the liberation of thirty-six american citizens, condemned on a charge of piracy, and now held in slavery in the vaults of st. clara, in carthagena, and that the sum of ---- dollars be appropriated to that purpose. mr. d. r. williams moved to postpone the consideration of the subject indefinitely. negatived-- to . the house then went into a committee of the whole on the subject-- to . mr. love moved to amend the resolution by striking out the words in italics, and inserting "authorized to request."--carried, ayes . those gentlemen who supported this resolution in the debate were messrs. love, lyon, bacon, nelson, sloan, and wilbour. those who opposed it were messrs. d. r. williams, taylor, smilie, macon, and southard. the gentlemen who opposed the resolution, among other objections, contended that an agreement to the resolution would but involve the government in difficulty without answering any good purpose; that it would in fact be aiding the attempt of a certain party to prove that the general government had some connection with this expedition originally, which it certainly had not; that the facts set forth in the petition were wholly unsupported by evidence; that these persons had engaged themselves in a foreign service; that they had become weary of the privileges of freemen, and had entered into a hostile expedition against a foreign country, and, in so doing, had been taken, condemned for piracy, and immured as a punishment for that offence; that the british government, having been at the bottom of this business, was the proper power to release these persons, and indeed had applied to the spanish commander for the purpose; that even were the united states bound by the laws of justice or humanity to intercede for these persons, they knew not to whom to make application, and would probably meet with a refusal, perhaps a rude one, if any judgment could be formed from the present situation of our affairs with spain; that if gentlemen wished for objects on which to exercise their humanity, they might find them in the lacerated backs of our impressed seamen, without extending it to criminals. in reply to an observation of mr. lyon, that if we did not get these men great britain would do so, and employ them to extend her naval force, mr. macon replied, if she did, she was welcome to keep them; but she was in the habit of supplying her navy with seamen from our vessels, without the trouble which the acquisition of these men might occasion her. in reply to these objections, and in support of the resolution, the humanity of the house was strongly appealed to. it was urged that the government could in nowise be involved by an appeal to the generosity of the provincial government; that these men had not wilfully committed piracy, but had been deluded under various pretences to join the expedition; that they had joined it under a belief that they were entering into the service of the united states; that, even admitting them to have been indiscreetly led to join the enterprise, knowing it to be destined for a foreign service, yet, that they had been sufficiently punished by the penalty they had already undergone; that it was wholly immaterial what inference any persons might draw from the conduct of the united states in this respect, as to their concern with the original expedition; that such considerations should have no weight with the house; that if these poor fellows were guilty, they had repented of it; and mr. nelson quoted on this point the scriptures, to show that there should be more joy over one sinner that repenteth, than over ninety and nine who have no need of repentance. in reply to an intimation that it was not even ascertained that they were american citizens, mr. bacon observed that one of them had been born in the same town in which he was, and was of a reputable family. the resolution was negatived by the committee-- to . the committee rose and reported the resolution, which report the house agreed now to consider--ayes . the question of concurrence with the committee in their disagreement to the resolution, was decided by yeas and nays, to . on motion, the house adjourned. tuesday, december . a new member, to wit, joseph story, returned to serve in this house, as a member for the state of massachusetts, in the room of jacob crowninshield, deceased, appeared, produced his credentials, was qualified, and took his seat in the house. wednesday, december . _captain pike's expedition._ on motion of mr. j. montgomery, the house resolved itself into a committee of the whole, on the bill making compensation to z. m. pike and his companions. [the first section of this bill grants to captain pike and his companions a certain quantity of land. the second section allows them double pay during the time they were engaged in exploring the western country.] mr. stanford moved to strike out the first section of the bill; which was negatived-- to . the second section was stricken out-- to . a considerable debate took place on this bill, in which messrs. montgomery, lyon and alexander supported the bill, and messrs. macon, durell, stanford and tallmadge opposed it. the bill being gone through, was reported to the house. saturday, december . _division of the indiana territory._ mr. thomas, from the committee appointed on the thirteenth instant, to inquire into the expediency of dividing the indiana territory, made a report thereon; which was read, and committed to a committee of the whole on monday next. the report is as follows: that, by the fifth article of the ordinance of congress for the government of the territory of the united states northwest of the river ohio, it is stipulated that there shall be formed in the said territory no less than three, nor more than five states; and the boundaries of the states, as soon as virginia shall alter her act of cession, and consent to the same, shall become fixed and established, as follows: the western state shall be bounded by the mississippi, the ohio, and wabash rivers; a direct line drawn from the wabash and post vincennes, due north, to the territorial line between the united states and canada, and by the said territorial line to the lake of the woods and mississippi. the middle state shall be bounded by the said direct line, the wabash, from post vincennes to the ohio; by the ohio, by a direct line drawn due north from the mouth of the great miami, to the said territorial line, and by the said territorial line. the eastern state shall be bounded by the last-mentioned direct line, the ohio, pennsylvania, and the said territorial line: _provided, however_, and it is further understood and declared, that the boundaries of these three states shall be subject so far to be altered, that if congress shall hereafter find it expedient, they shall have authority to form one or two states in that part of the said territory which lies north of an east and west line drawn through the southerly bend or extreme of lake michigan. and whenever any of the said states shall have sixty thousand free inhabitants therein, such state shall be admitted by its delegates into the congress of the united states on an equal footing with the original states, in all respects whatever, and shall be at liberty to form a permanent constitution and state government: _provided_, the constitution and government so to be formed shall be republican, and in conformity to the principles contained in these articles; and, so far as it can be consistent with the general interest of the confederacy, such admission shall be allowed at an earlier period, and when there shall be a less number of free inhabitants in the state than sixty thousand. by the aforesaid article, it appears to your committee that the line fixed as the boundary of the states to be formed in the indiana territory is unalterable, unless by common consent; that the line of demarcation, which the wabash affords between the eastern and western portion of said territory, added to the wide extent of wilderness country which separates the population in each, constitute reasons in favor of a division, founded on the soundest policy, and conformable with the natural situation of the country. the vast distance from the settlements of the wabash to the present seat of territorial government, renders the administration of justice burdensome and expensive to them in the highest degree. the superior courts of the territory are, by law, established at vincennes; at which place suitors, residing in every part of the territory, are compelled to attend with their witnesses, which, to those who reside west of the wabash, amounts almost to a total denial of justice. the great difficulty of travelling through an extensive and loathsome wilderness, the want of food and other necessary accommodations on the road, often presents an insurmountable barrier to the attendance of witnesses; and, even when their attendance is obtained, the accumulated expense of prosecuting suits where the evidence is at so remote a distance, is a cause of much embarrassment to a due and impartial distribution of justice, and a proper execution of the laws for the redress of private wrongs. in addition to the above considerations, your committee conceive that the scattered situation of the settlements over this extensive territory cannot fail to enervate the powers of the executive, and render it almost impossible to keep that part of the government in order. it further appears to your committee, that a division of the said territory will become a matter of right under the aforesaid article of the ordinance, whenever the general government shall establish therein a state government; and the numerous inconveniences which would be removed by an immediate separation, would have a direct tendency to encourage and accelerate migration to each district, and thereby give additional strength and security to those outposts of the united states, exposed to the inroads of a savage neighbor, on whose friendly dispositions no permanent reliance can be placed. your committee have no certain data on which to ascertain the number of inhabitants in each section of the territory; but, from the most accurate information they are enabled to collect, it appears that west of the wabash there are about the number of eleven thousand, and east of said river about the number of seventeen thousand, and that the population of each section is in a state of rapid increase. your committee, after maturely considering this subject, are of opinion that there exists but one objection to the establishment of a separate territorial government west of the river wabash, and that objection is based on the additional expense which would, in consequence thereof, be incurred by the government of the united states. but, it is also worthy of observation, that the increased value of the public lands in each district, arising from the public institutions which would be permanently fixed in each, to comport with the convenience of the inhabitants, and the augmentation of emigrants, all of whom must become immediate purchasers of these lands, would far exceed the amount of expenditure produced by the contemplated temporary government. and your committee, being convinced that it is the wish of a large majority of the citizens of the said territory that a separation thereof should take place, deem it always just and wise policy to grant to every portion of the people of the union that form of government which is the object of their wishes, when not incompatible with the constitution of the united states, nor subversive of their allegiance to the national sovereignty. your committee, therefore, respectfully submit the following resolution: _resolved_, that it is expedient to divide the indiana territory, and to establish a separate territorial government west of the river wabash, agreeably to the ordinance for the government of the territory of the united states northwest of the river ohio, passed on the th day of july, . mr. thomas, from the same committee, presented a bill for dividing the indiana territory into two separate governments; which was read twice and committed to a committee of the whole on monday next. a motion was made by mr. wynn, that when this house adjourns, it will adjourn until tuesday morning, eleven o'clock: and the question being taken thereupon, it was resolved in the affirmative--yeas , nays . monday, january , . another member, to wit, john rowan, from kentucky, appeared, and took his seat in the house. _naval establishment._ the amendments of the senate to the bill sent from the house for employing an additional number of seamen and marines, were taken up. [the amendments propose the immediate arming, manning, &c., all the armed vessels of the united states.] mr. g. w. campbell expressed a hope that the house would disagree to the amendments. the president was already authorized by law to fit out these vessels, whenever, in his opinion, the public service should require it; and the expense which would attend them was a sufficient argument against it, if no urgent occasion existed for their service, which he believed did not. mr. story entertained a very different opinion from that of the gentleman from tennessee. in case of war there must be some ships of war of one kind or other; and it would take six months at least to prepare all our ships for service. at present they were rotting in the docks. if it were never intended to use them, it would be better to burn them at once than to suffer them to remain in their present situation. he believed if out at sea they might be useful and would be well employed. why keep them up at this place, whence they could not get out of the river perhaps in three weeks or a month? he believed that a naval force would form the most effectual protection to our seaports that could be devised. part of our little navy was suffered to rot in the docks, and the other part was scarcely able to keep the ocean. could not a single foreign frigate enter almost any of our harbors now and batter down our towns? could not even a single gunboat sweep some of them? mr. s. said he could not conceive why gentlemen should wish to paralyze the strength of the nation by keeping back our naval force, and now in particular, when many of our native seamen (and he was sorry to say that from his own knowledge he spoke it) were starving in our ports. mr. s. enumerated some of the advantages which this country possessed in relation to naval force. for every ship which we employed on our coasts, he said, any foreign nation must incur a double expense to be able to cope with us. the truth was, that gentlemen well versed in the subject, had calculated that it would require, for a fleet competent to resist such a naval force as the united states might without difficulty provide, four or five hundred transport ships to supply them with provisions, the expense of which alone would be formidable as a coercive argument to great britain. he wished it to be shown, however small our naval force, that we do not undervalue it, or underrate the courage and ability of our seamen. mr. cook followed mr. story on the same side of the question. he compared the nation to a fortress on which an attack was made, and the garrison of which, instead of guarding the portal, ran upon the battlements to secure every small aperture. he thought their attention should first be directed to the gates, and that a naval force would be the most efficient defence for our ports. mr. d. r. williams called for the yeas and nays on the amendments. mr. smilie said that raising a naval force for the purpose of resisting great britain, would be attacking her on her strong ground. if we were to have a war with her on the ocean, it could only be carried on by distressing her trade. neither did he believe that these vessels of war would be of any effect as a defence. they did not constitute the defence on which he would rely. if we had a navy, it would form the strongest temptation for attack upon our ports and harbors. if denmark had possessed no navy, copenhagen would never have been attacked. the only way in which we could carry on a war on the ocean to advantage, mr. s. said, would be by our enterprising citizens giving them sufficient encouragement. were we to employ a naval force in case of war, it would but furnish our enemy with an addition to her navy. he hoped the house would disagree to the amendments of the senate and appoint a committee of conference. mr. dana said that the amendments sent from the senate presented a question of no small importance to the nation. without expressing any opinion on the question, it appeared to him to be at least of sufficient importance to be discussed in committee of the whole. coming from the other branch of the legislature, and being so interesting to the nation, he wished that it might be discussed fairly and fully; and, therefore, moved a reference to a committee of the whole. messrs. dana, tallmadge, and story, urged a reference to a committee of the whole on account of the great importance of the subject, on which a full discussion would be proper; and messrs. macon, g. w. campbell, and holland opposed it, because the seamen proposed by the original bill were now wanted, and the subject of the amendment was already referred to a committee of the whole in a distinct bill. motion lost, to . mr. macon observed, that the immediate expense of this arrangement, if agreed to, would be at least five or six millions of dollars, and but four hundred thousand were appropriated by the bill. when he compared this bill with the report of a select committee made to the house of representatives, he said he was astonished. a part of that report was a letter from the secretary of the navy, in which the very number (two thousand) contained in the bill as it went from this house, was desired. mr. m. adverted to the observation of mr. story, that it would cost great britain as much to keep one frigate as it would cost us to keep two. he thought the expense would be about equal. the expense of the transportation of provisions would be counterbalanced by the difference of expense between the pay of the british and american seamen, the latter being double of the former generally. he objected to this bill from the senate because no estimate accompanied it. he thought they would go far enough if they gave the departments all that they asked. this house had indeed as much right to judge of the force requisite, as any other department; but he did not wish to be called upon to supply a deficit in the appropriation, which never failed to occur even in the ordinary appropriations for the navy department. give the four hundred thousand dollars asked for, and the deficit in the appropriation will be at least ten times the amount of the sum appropriated. mr. cook contended strenuously in favor of a naval force. he detailed the advantages which would accrue to the nation from a few fast sailing frigates. he said they were essentially necessary to defence. he expatiated on the difficulty with which any foreign power could maintain a force on our coast. mr. holland did not profess to have much knowledge on this subject, but he said it did not require much to overthrow the arguments of gentlemen on the subject. what defence a few frigates would be to the extensive coast of this country, he could not understand. there certainly never had been a time when this country should rely on a maritime force as a sufficient protection. indeed, he said, if we had fifteen or twenty or more sail-of-the-line, he should hesitate much before he would go to war with great britain, because these would undoubtedly be lost. our power of coercion was not on the ocean. great britain had possessions on this continent which were valuable to her; they were in the power of the united states, and the way to coerce her to respect our rights on water, would be attacking them on land. he said he certainly did not undervalue the disposition and prowess of our seamen; and it was because he valued them, that he did not wish them to go into an unequal contest, in which they must certainly yield. gentlemen might understand naval matters; but it was no reason that they should therefore understand the efficiency of a naval force. there was sufficient evidence in history to warn the united states against it. mr. troup said he rose but for the purpose of stating facts which struck him as being applicable to the subject before the house. he referred chiefly to an extract of a letter written to himself and published in the paper of to-day. [mr. t. then read the extract which appeared in the national intelligencer on the th instant.] in addition to these facts, letters had been received, in the course of this morning, containing further particulars, which he begged leave to state to the house. after the officer (commander of a british armed vessel) had been forced on board his vessel, and while lying in our waters and within our jurisdiction, he had fired several shots at pilot-boats, passing and repassing, had been very abusive, and threatened the town with what he called vengeance; and, in addition to these facts, letters had reached savannah from liverpool, giving satisfactory information that vessels of fifteen or twenty guns had been fitted out for the purpose of forcing a cotton trade with south carolina and georgia. this information, mr. t. said, came from unquestionable authority. and it was because he was unwilling that the people of this country should longer submit to the abuse of british naval officers; because he was unwilling that they should be exposed to the insolence of every british commissioned puppy who chose to insult us; because he was unwilling that armed vessels should force a cotton trade, when every man knew that nine-tenths of the people of georgia would treat as traitors the violators of the embargo; it was for this reason that he was disposed to vote for the amendments from the senate. the great objection which had been taken to them was the expense which they would produce. economy, mr. t. said, was a good thing in time of peace; but if this contracted spirit of economy predominated in our war councils, if we were forced into a war, so help him god, he would rather at once tamely submit our honor and independence than maintain them in this economical way. if we went to war, we ought not to adopt little measures for the purpose of executing them with little means; neither should we refuse to adopt great measures, because they could not be executed but with great means. it was very true that, in war as well as in peace, calculation to a certain extent was necessary; but, if they once resolved on an object, it must be executed at whatever expense. he was no advocate for standing armies or navies, generally speaking; but, in discharging his duties here, he must be governed by the circumstances of every case which presented itself for his decision, and then ask himself, is it wise, politic, and prudent, to do this or omit that? he said he would never go back to yesterday to discover what he had then said or done, in order to ascertain what he should now do or say. political conduct must depend on circumstances. what was right yesterday might be wrong to-day. nay, what was right at the moment he rose to address the house, might, ere this, be palpably wrong. conduct depended on events, which depended on the folly or caprice of men; and, as they changed, events would change. it might have been a good doctrine long ago that this country ought to have a navy competent to cope with a detachment of the british navy; it might have been good doctrine then, but was shocking doctrine now. at that time england had to contend with the navies of russia, denmark, france, holland, spain, &c. now england was sole mistress of the ocean. to fight her ship to ship and man to man, and it was impossible that gentlemen could think of fighting her otherwise, if they fought her at all, we must build up a huge navy at an immense expense. we must determine to become less agricultural and more commercial; to incur a debt of five hundred or a thousand million of dollars, and all the loans and taxes attendant on such a system, and all the corruption attendant on them. he should as soon think of embarking an hundred thousand men for the purpose of attacking france at her threshold, as of building so many ships to oppose the british navy. it was out of the question; no rational man could think of it. but that was not now the question. it was, whether we would call into actual service the little navy we possessed. it was not even a question whether we would have a navy at all or not. if that were the question, he would not hesitate to say that even our present political condition required a navy to a certain extent, to protect our commerce against the barbary powers in peace, and in time of war for convoys to our merchantmen. he only meant a few fast-sailing frigates, such a navy as we have at present, for the purpose of harassing the commerce of our enemies also. he therefore thought our present naval force ought to be put in service. as far as the appropriation ($ , ) would go, it would be employed; but if congress should hereafter see cause to countermand or delay the preparation, they would have it in their power to do so by refusing a further appropriation. mr. d. r. williams said it was his misfortune to differ with gentlemen upon all points on the subject of the navy. he was opposed to it from stem to stern; and gentlemen who attempted to argue in favor of it as a matter of necessity, involved themselves in absurdities they were not aware of. when money had been appropriated for fortifications, there had been no intimation that it would be necessary to prop them up with a naval force. if our towns could not be defended by fortifications, he asked, would ten frigates defend them? the gentleman from massachusetts (mr. story) had even gone so far as to say that a single gunboat could sweep one-half of our harbors. if a single gunboat could now sweep most of our harbors, mr. w. said he should like to know what eleven hundred and thirty vessels of war could do, even when opposed by our whole force of ten frigates! the gentleman from massachusetts had said it would be cheaper to keep these vessels in actual service than in their present situation. mr. w. said he supposed that the gentlemen meant that they would rot faster in their present situation than if they were at sea. he said he was for keeping them where they were, and would rather contribute to place them in a situation where they would rot faster. mr. w. combated the arguments that employing the navy would afford relief to our seamen, and that the maintaining a navy on our coast would be more expensive to an european power than the support of a larger naval force by us. and he said we should never be able to man any considerable fleet except the constitution were amended to permit impressments, following the example of great britain. the gentleman from massachusetts (mr. story) had said that except we begun with this bill, and got his fast-sailing frigates, we should never regain our rights. if that were really the case, mr. w. said he was ready to abandon them. he considered that the sort of maintenance of our rights adverted to by the gentleman from massachusetts, would be destructive to those rights. gentlemen must have forgotten that when hamburg was in the greatest state of prosperity, she did not possess even a single gunboat. why! there was not wealth enough in this whole nation, if every one were to carry his all, thus to maintain our rights against the navy of great britain. if we were carried into a war, and every thing really seemed to be tending that way, we must rely upon the enterprise of our citizens; and that, when set at liberty, would be found more desperate than the navy of any country. when we arrived at the end of the revolutionary war we had but one frigate, and the best thing we ever did was to give that one away. the state of south carolina had not yet got clear of the curse. she embarked one frigate in the general struggle, and she had not rid herself of the debts incurred by it yet. private enterprise must be depended upon. the people from the eastward had shown in the last war what they would do. when vessels were loaded with sugar they would fight like bull-dogs for it. he recollected a story, he said, of one of our privateers being beat off by a jamaica man, whom they attacked. the captain not liking to lose the prize, and finding his crew disheartened, told them she was full of sugar. "is she?" said they, "by g--d; let us at them again." they scarcely ever failed in their enterprises. in allusion to the case at savannah, mr. w. regretted that an insult should be offered to the people of the country. the insult at savannah had by this time been redressed, he had no doubt. he had no information to induce him to believe so, but the knowledge that the sloop-of-war hornet was stationed off charleston, and of course cruised near the place. the hornet was perfectly adequate to drive any vessel of twenty guns out of our waters. she was one of the best vessels of the united states, and as well officered as any. [mr. troup observed that the hornet was off charleston. now, he wanted a frigate at savannah.] mr. w. said that savannah was the very place where gunboats would be perfectly effectual. he meant to make no reflection against the proposer of the gunboat system, but he did against those who had only given one-half of the system, and omitted the other--the marine militia. and now, when an attack was menaced at savannah, gentlemen wanted a frigate! if nine-tenths of the people were opposed to the evasions of the embargo law, mr. w. said it would not be evaded. the evaders would be considered as traitors--as the worst of traitors. as to preparing a force for the protection of navigation, the gentleman from georgia must well know that the whole revenue of the united states would not be competent to maintain a sufficient number of vessels to convoy our merchantmen. mr. w. concluded by saying, that he wished the nation to be protected, and its wrongs to be redressed; but when he reflected that at castine the soil had been most abominably violated, he could not view the insults in our waters as being equal to it; for, said he, touch the soil and you touch the life-blood of every man in it. mr. durell considered the present subject as one of the most important which had been introduced at this session. it would indeed be difficult to reason gentlemen into a modification of a principle to which they were opposed throughout; but he trusted that this house was not generally so disposed. he believed that a large majority of the house were at the present moment in favor of embargo or war, because the house had been so distinctly told by a committee on our foreign relations, that there was no alternative but submission; and almost every gentleman who had the honor of a seat within these walls, had committed himself on the subject, either to persevere in the embargo or resort to war. what would be the object of a war? not the right of the soil, not our territorial limits, but the right of navigating the ocean. were we to redress those wrongs, those commercial injuries, on the land? not altogether, he conceived. would it be good policy, he asked, to let our means of carrying on war on the ocean rot in our docks, and not make use of them? these vessels would also be useful as a defence. why then should they not be manned and put in readiness for service? it was said that we could not cope with the british navy. mr. d. said this argument proved too much, if it proved any thing. if he did not feel perfectly comfortable in a cold day, should he therefore divest himself of all clothing? why send out the sloop of war hornet, alluded to by the gentleman last up--why rely upon it for redressing the insult at savannah, if naval force was useless? it was no reason, because great britain had more vessels than we, that we should not use what we had. indeed, those gentlemen who objected to naval force, appeared to be mostly from the interior, and of course could not properly estimate its value. mr. sawyer was wholly opposed to the amendments from the senate. the objection to this particular increase of naval force on the score of expense, was not to be disregarded. he called the attention of gentlemen to the state of the treasury. the expense of this system would be three millions; and when this sum was added to other sums which would be requisite if measures now pending were adopted, it would render it necessary for congress now to borrow money on the credit of posterity. the expedient of direct taxation would not be resorted to. it had already been the death-blow to the political existence of one administration. this government, he said, was founded on public opinion, and whenever the approbation of the people was withdrawn, from whatever cause, the whole superstructure must fall. mr. s. dwelt at some length on the disadvantage of loans. he said, if this nation was destined to raise a navy for the protection of commerce, it should have begun earlier, in the year , when such outrageous violations had been committed on our commerce. the expense of such an establishment would have far exceeded the amount in value of captures made since that period. he concluded, from a number of observations which he made on this subject, that, on the score of the protection of trade, it would not be proper to fit out a navy. this proposition, he said, was the mere entering-wedge. the system was either unnecessary, or would be wholly futile in practice. our seamen would cost us at least double of what is the expense of her seamen to great britain; and it required her utmost exertions to pay the interest of the enormous debt with which her unwieldy navy had saddled her. he therefore certainly thought that an attempt to justify it on the score of profit would not succeed. he deprecated the extension of executive patronage, which would result from an increase of the naval establishment. need he go back, he asked, to the time when the black cockade was necessary, in some parts of the country, to secure a man from insult from the officers of the navy? he wished to limit the executive patronage; to adhere closely to the maxims of our forefathers. by sending out a navy, too, he said, we should volunteer to support the ascendency of the british navy, become the mere jackals of the british lion. mr. s. went at some length into an examination of the former administration in relation to a navy. there was nothing, he observed, in the nature of our government, or of our foreign relations, to require a navy. if we could not carry on foreign commerce without a navy, he wished to have less of it and more of internal commerce, of that commerce which the natural advantages of the country would support between different parts of it. if we were to build a navy for the protection of foreign commerce, we should throw away our natural advantages for the sake of artificial ones. he was in favor of the embargo at present. there was more virtue in our barrels of flour as to coercion than in all the guns of our navy; and we had lately given our adversaries a supplementary broadside, which he hoped would tell well. mr. s. stated the origin and progress of navies at some length, commencing with the republic of genoa. our chief reliance as to defence must be on our militia. so little did great britain now rely on her navy for defence of her soil, that she had called upon every man in the country to be at his post, if danger came. other nations might be justified in supporting a naval force, because they had colonies separated from them by the sea, with whom they were obliged to have means of intercourse, but we had not that apology for a navy. mr. s. concluded his observations, after speaking near an hour, not, he said, that he had gone through the subject; but, as it was late in the day, he yielded the floor to some other gentleman. mr. j. g. jackson said, that gentlemen should not be influenced, in discussing the present question, by a belief that they were now discussing the propriety of raising a naval force for offensive purposes. this was not the question. it was only whether, at this crisis, the house would employ a little force for the purpose of resisting attacks made on our territory at home. the gentleman from south carolina (mr. williams) had said that an attack on the soil touched the life-blood of every man in it. yes, mr. j. said, it did; whether the invasion was on our jurisdiction, on land or water, it touched equally the life-blood of the nation. he would as soon resist an attack on our territorial jurisdiction on sea as on land. it made no difference with him whether a foreign frigate came up to the piles of potomac bridge and fired over into the town, or whether its crew came on shore and assaulted us with the bayonet. the territory, he said, was equally invaded in either case. were we not to resist great britain because of her , sail of armed vessels? this would amount to a declaration that we must succumb to her, because she could at any time send a squadron sufficient to destroy our naval force at a single blow. this was the tendency of the argument. mr. j. said it would be more honorable to fight, while a single gun could be fired, notwithstanding her overwhelming force. this mode of reasoning had a tendency to destroy the spirit of the people. he would never consent to crouch before we were conquered; this was not the course of our revolutionary patriots, and he trusted it was one which we should not follow. he would rather, like the heroic band of leonidas, perish in the combat, although the force of the enemy was irresistible, than acknowledge that we would submit. this naval force was not, however, intended to cope with the navy of great britain, but to chastise the petty pirates who trespassed on our jurisdiction; pirates, he called them, because the british government had not sanctioned their acts. it had not justified the murder of pierce, or asserted the right of jurisdiction claimed by an officer within the length of his buoys, &c., because, if she had, it would have then been war. for this reason he wished our little pigmy force to be sent on the ocean, notwithstanding the giant navy of great britain. some gentlemen had opposed this on the score of expense. our most valuable treasure, mr. j. said, was honor; and the house had almost unanimously declared that it could not submit without a sacrifice of that honor. saturday, january . _extra session._ on motion of mr. smilie the house resolved itself into a committee of the whole on the bill to alter the time of the next meeting of congress. mr. j. g. jackson moved to strike out the "fourth" monday in may, and insert the "last," stating as a reason, that as the virginia elections took place in april, the representatives could not arrive here in time. mr. macon wished a division of the question so as first to strike out, with a view to insert "september," instead of may. the motion to strike out was negatived-- to . it was supposed that this question tried the principle of the bill. the committee rose and reported the bill. mr. d. williams moved to strike out may for the purpose of inserting "september." mr. milnor hoped the motion would not be agreed to. if the new congress could commence its session on the th day of march next, he said he should think it extremely proper that it should do so. and, if he could think that the majority would fix an earlier day than the fourth monday of may for the meeting, he should vote for the present motion. he agreed with gentlemen that this was a momentous crisis; that the country was in a situation of extreme difficulty and danger. it appeared to him, therefore, that congress, who were the guardians of the public welfare; to whom were confided the destinies of the nation, so far as the nation could control them, should be constantly in session, till a more favorable state of affairs took place. it was possible, but was it probable that any event would occur to alter our situation for the better? there was no hope that the belligerents would recede from their injurious restrictions on our commerce. it was not probable that any thing would occur which would do away the necessity of an extra session. the present congress having determined to persevere in the embargo and the present system of measures a while longer, the peace and welfare of the country required that a different system should be adopted. the present had been sufficiently tested, and would never produce those effects anticipated from it. it was proper that an early opportunity should be given to the next congress to approve the present system, or give it up and adopt some other in its stead. mr. d. r. williams said he was opposed to congress coming here at the time proposed. why should they come here then? he wished some one to answer, and let him understand why they were coming. in his opinion there was every possible objection to such a procedure. on the fourth day of march, a new president comes into power. is it not presumable that the president would choose to have some communication with our ministers abroad before the meeting of congress? could any man say that it was not proper that he should have it? mr. w. said he hoped that the president would send special messengers, unfashionable as that policy was. if you are willing to wait for a declaration of war till the fourth monday in may, will there be any necessity of declaring it before the first monday in june or july? you have suffered the public mind to assuage in its resentment, and i very much doubt, that before a full experiment be made of the embargo, it will be wholly allayed. it has been said through the nation, and indeed avowed on this floor, that the administration does not wish for peace. having failed to take hold of the affair of the chesapeake for a declaration of war, you have nothing now to give the people that interest which i hope they always will have in a declaration of war. suppose you were to send special ministers, and they were to be treated as our ministers to france were under a former administration, would not this treatment make every man in the nation rally around you? would it not prove beyond doubt that the administration was sincere in its wishes for peace? undoubtedly it would. why are your ministers now loitering in foreign courts? with a hope of accommodation, sir, i would send other ministers there, and if they failed of immediate accommodation, would order them all home. if they are compelled to return, you will have the whole nation with you, which you must have when you go to war. mr. j. g. jackson replied to mr. williams. the gentleman had asked emphatically why congress should convene here in may. occurrences of every day, said mr. j., are presenting themselves in such a way as to render it highly important and necessary that some other ground should be taken. are we to adhere to the embargo forever, sir? i have said, and again say, that a total abandonment of the ocean would be submission. i think, by passing this bill, we give the nation a pledge that it shall be the _ne plus ultra_, which shall give to foreign nations time to revise their conduct towards us, and will give them time to consider whether or not they will have war with us. the gentleman wants a special mission. sir, are we to continue in this state any longer? shall negotiation be spun out further? no man can doubt the capacity of our ministers abroad, and their disposition to represent their government correctly. the doors are shut in the face of our minister at the court of st. james, and worse than shut at the court of st. cloud--for, from the latter, contemptuous silence is all the answer we have received, if indeed silence can convey an answer. are we to renew negotiation, then, when every circumstance manifests that it would be useless? need i refer to what took place the other day--i allude to the publication of a letter by mr. canning, in a highly exceptionable manner, through federal presses, or presses more devoted to the interests of that country than any other? one universal burst of indignation accompanied the publication of that letter in this house. and are we, under such circumstances, to renew negotiation by extra missions? i conceive that the cup of negotiation and conciliation is exhausted to the dregs, and that we should but further degrade ourselves by sending further extra missions. it has been stated to me that a proposition had actually been reduced to writing by a member of this house the other day for sending away foreign ministers and calling our ministers home, and i am sorry that the proposition was not offered to the house, for, under present circumstances, it might not have been improper to have adopted it. mr. smilie said, if there were no other reason, the present suspension of commerce, and discontents at home, were sufficient reasons for calling congress earlier than the first monday in december. when the new administration should come into office, it was proper that they should have an opportunity of meeting congress as early as possible. it was his opinion that, at the next session, a change of measures would take place. what would be the substitute for the present measure he could not say; but, at this time, he must say that he could see no way of avoiding war. with regard to extra missions, he really had no idea of a measure of that kind. if there should be any other means to secure the interest and honor of the nation but war, he hoped in god that it would be adopted, but he did not now see any such prospect. mr. rhea, of tennessee, said it was of no importance in the consideration of the present question what the next administration should think or do. he wished that there could be an understanding with foreign nations for our good, but he much doubted such a result. he would not undertake to say whether war, or what other measure, ought to be adopted at the extra session; but, it was his opinion, that congress ought to meet, and he should vote against every proposition going to defeat the object of the bill. although this nation had not immediately retaliated the attack on the chesapeake, would any man rise on this floor and say that the act of dishonor was done away because the house refused immediately to avenge it? he believed not; and, as long as it remained unatoned, it was cause for this nation to act. the only question for the house now to determine was this: are there reasons to induce gentlemen to believe that a meeting of congress is necessary on the fourth monday of may next? as it appeared to him that such reasons did exist, he said he was bound on his responsibility to vote for the bill. mr. durell asked if gentlemen meant to continue the embargo forever. he believed somewhat in the doctrine that an explosion might take place under it in a certain portion of the country. gentlemen said an extra session was, therefore, necessary to save the nation. mr. d. asked if the nation was to be saved by long speeches? he had seen almost two whole sessions of congress pass away, the one of six months, the other of three, and the nation in the same situation still, and still told, in long stories, from day to day, that it was in a critical situation. he had no idea that the nation was to be saved by much speaking. he did firmly believe, that more than forty-eight hours would not be necessary to pass all laws to meet the impending crisis. if a declaration of war was thought proper, this would be sufficient time for it; if an extraordinary mission, as suggested by the gentleman from south carolina, forty-eight hours would be time enough for the house to decide on recommending it. the present was a state of suspense, from which the nation ought to be removed, and he was unwilling to prolong this state by the passage of the bill. mr. burwell said he was one of those who would vote for an earlier meeting of congress than usual. in great britain, in whose government there were some features approximating to ours, there was always an uneasiness, lest the parliament should not meet often enough. whence could be the objection to congress meeting at an earlier day? if the public sentiment was not then prepared for war, it would not be adopted. it appeared to him that an early session, instead of producing mischief, would essentially contribute to tranquillize the minds of the people. if peace was attainable, we must have peace; but if not, we have no choice but war. the gentleman from south carolina suggests the propriety of sending a special mission, said mr. b. let me ask him, if administration should not take this course, whether it would not be perfectly proper that congress should be in session? certainly it would. with respect to a special mission, mr. b. said he was perfectly at a loss to conceive what could be the nature of any proposition which could be made to great britain. a proposition had already been made to her, in effect, to go to war with her against france, and insultingly refused; for no other interpretation could be made of the offer to suspend the embargo, if she would rescind her orders in council, except mr. canning chose to misunderstand everything that could be said. unless gentlemen would point out some new proposition, which could be made to great britain or france, he could not see the propriety of the course recommended. as to the continuance of the embargo, mr. b. said it seemed to be perfectly well understood by every man, that when the government determined on that course, it did not determine to persevere in it eternally. if it could be made manifest to him that any particular favorable consequence would be produced by postponing the session beyond the fourth monday in may, he might be induced to accede to it. as to the disposition of the administration to preserve peace, could the gentleman conceive it possible to remove the impressions of those who were determined not to be convinced? this nation had sued for peace, but in vain; they had offered to give up almost every thing in contest, if great britain would yield a thing which neither mr. canning nor any other member of the british government ever said they had a right to do, and which was only justified on the ground of necessity. there was therefore no plausibility in the assertion that peace had not been earnestly sought for. mr. g. w. campbell said that if nothing occurred between this time and the time proposed by the bill for the next meeting of congress, which would particularly render a change necessary, he was yet of opinion that it would be then necessary to change our situation; for this reason: that at that period, time sufficient would have elapsed to give us information as to what ground great britain would take, after she had heard of the position which congress had maintained. after that ground was taken, congress would know how to act. i never voted for the embargo as a permanent measure, said mr. c., nor did i ever use an expression which would authorize such a supposition; nor do i suppose that any other gentleman entertained such an idea. as to a special mission, i should as soon think of sending a special messenger to the moon as to great britain or to france, for the cup of humiliation is exhausted already, and i will never put it in their power to offer us another cup. mr. macon said he had not intended to have said any thing, but that the gentleman from virginia (mr. burwell) had broached a doctrine which he did not approve--that this government was like that of great britain. mr. burwell explained that he had said that the governments were, in some of their features, alike. mr. macon said that the reason of the fear in great britain that the parliament would not meet often enough, was extremely obvious. the only voice which the people had was in the house of commons, and they wanted them to be always in session, to keep the king and nobility off from them. in great britain the king dissolved parliament at his pleasure. here, he said, there was no power to dissolve congress. indeed, there was no similarity in the two governments. he said he had no fear of any mischief being done by congress meeting earlier; but he was opposed to their meeting earlier, because they would do more good by staying away. could any man say what would take place between this day and the third of march? and yet the house were now called on to determine on an extra session. he was for giving such time, after the deliberations of the present session closed, as that great britain might see what we had done, and consider whether she would retract or go to war, for if she did not retract, war must be the consequence. mr. m. said he would give every opportunity for peace; he would not be for hurrying the matter. he had no opinion that congress being in session would have any effect on the people. the cry of an intention to destroy commerce was not to make him do a single thing which he would not otherwise do. no man can believe that we who raise produce should wish it to lie on our hands, as is now our situation. it is maritime rights for which we contend. for these we planters are making sacrifices, and we know it. as to the grower it is immaterial in point of interest into what ship or wagon his produce goes; but he is contending for the interests of his mercantile brethren. a great deal has been said about repealing the embargo to put an end to discontents. let gentlemen beware of it, lest in trying to please everybody, they please nobody. let us do what is right, that is the only ground for us to take. whenever we begin to temporize, that principle is abandoned. i disagree with the gentleman from tennessee as to the expediency of continuing the embargo; i do not believe that it would be inexpedient to try it beyond may. i believe we ought to try it beyond september. this is my opinion. what effect do gentlemen expect that the embargo will have had in may? not more than at this moment. while every day from that time till september, it will be more and more effectual. i never voted for it as a permanent measure; but my opinion was, as i stated it, that it might be necessary to hold on to it for one, two, or three years. i might be wrong, but this was my opinion then, and i have not changed it. as to an extra session, i have never thought of it; but i am willing to leave it to the executive. it has been so suddenly suggested, however, that i would not undertake to decide positively on the subject. i should rather incline to let them send to us now; we have sent to them long enough. as to the people being tired of the embargo, whenever they want war in preference to it, they will send their petitions here to that effect. when gentlemen from the eastern states say, that the people there are tired of it, perhaps they speak correctly. as to all the talk of insurrections and divisions, it has no effect on me. when the sedition law was passed under the former administration, it was said that the people would not bear it. i thought then as now, that the elections would show their disapprobation, and that they would manifest it in that way alone. when the people are tired of the embargo, as a means of preserving peace, they will tell you so, and say, "give us war!" but none have said so; and yet, sir, i know well that myself and some others are blamed for our adherence to this measure. i can only say, that it is an honest adherence. i do believe that the continuance of that measure, with the addition of a bill now on your table, (non-intercourse bill,) is the best thing you can do; and if i thought that congress would declare war in may, i should be much more averse to meeting then than i am now; but i do not believe it will. the question was now taken on the motion of mr. d. r. williams to strike out the words "fourth monday in may," and lost. no other amendment being offered to the bill, it was ordered to be engrossed for a third reading. the bill being brought in engrossed, a motion was made that the same be read the third time to-morrow: and the question being put thereupon, it passed in the negative. a motion was then made by mr. smilie, that the bill be now read the third time; and the question being taken thereupon, it was resolved in the affirmative. the said bill was, accordingly, read the third time: whereupon, mr. speaker stated the question from the chair, that the same do pass? and, the question being taken, it was resolved in the affirmative--yeas , nays . monday, february . _presidential election._ several petitions having been presented, in addition to those heretofore stated, against the mode in which the late election in the state of massachusetts was conducted-- mr. bacon offered the following resolution: _resolved_, that the clerk of this house do carry to the senate the several memorials from sundry citizens of the state of massachusetts, remonstrating against the mode in which the appointment of electors for president and vice president has been proceeded to on the part of the senate and house of representatives of said state, as irregular and unconstitutional, and praying for the interference of the senate and house of representatives of the united states, _for the purpose of preventing the establishment of so dangerous a precedent_. mr. j. g. jackson said he saw no objection to the resolution, or even to going farther than it proposed. the constitution had declared that the election of electors in each state should be held in such manner as the legislature should direct; and, he said, he never could consent to the doctrine that any set of men, without the authority of law, could make an election of electors. he believed that the case was not provided for; and as the present case could not vary the general result of the presidential election, gentlemen appeared not to be disposed to interfere in it. but, he hoped it would operate on the house to induce them to consider the propriety of providing some mode of hereafter distinguishing between legal, and illegal or surreptitious election. mr. van horne moved to strike out the words in _italic_, as he understood them as committing the house to express an opinion on the subject of the petitions. motion lost--yeas . _opening and counting the electoral votes for president and vice president._ mr. nicholas offered the following order: _ordered_, that a message be sent to the senate to inform them that this house is now ready to attend them in opening the certificates and counting the votes of the electors of the several states, in the choice of a president and vice president of the united states, in pursuance of the resolution of the two houses of congress of the th instant; and that the clerk of the house do go with the said message. mr. randolph said it had sometimes been the case, he did not say it had been the practice, that this house had met the other branch of the legislature in their chamber, for the purpose of counting the votes; in which cases, very properly indeed, this house being in the chamber of the senate, the president of that body had taken the chair. mr. r. said he now understood that it was proposed, without any vote of this house for the purpose, that the president of the senate was to take the chair of this house; that the speaker was to leave the chair, to make way for the president of another body. to this, he, for one, could never consent. i conceive, said he, that such a proceeding would derogate, very materially, from the dignity, if not from the rights of this body. i can never consent, mr. speaker, that any other person than yourself, or the chairman of the committee of the whole house, should take the chair, except by a vote of the house. i hope, therefore, that this matter may be well understood. i conceive it to be a respect which we owe to ourselves, and to the people, whose immediate representatives we are, never to suffer, by a sort of prescriptive right, the privileges of this house to be in anywise diminished, or its dignity to fade before that of any other assembly of men whatever. mr. nicholas said he was as unwilling as any other gentleman to surrender the privileges of the house. when assembled as the house of representatives, he agreed that none but the speaker should take the chair; but, on the occasion of counting out the votes, he did not consider the house of representatives to be formed as a distinct body. in meeting on this occasion, he said, it always had been usual, since the establishment of the government, for the vice president of the united states, or the president _pro tempore_ of the senate, to take the chair. there was, also, a propriety in this course, because, by the constitution, the vice president is to open the votes. for twenty years the practice had been that the president of the senate presided in joint meeting. mr. nicholas moved, in order to do away any difficulty in this case, that when the members of the senate were introduced, the speaker should relinquish the chair to the president of the senate. mr. davenport supported this motion. he had no doubt of the propriety of the president of the senate presiding at a joint meeting, more especially, as he was the person designated by the constitution for counting out the votes. mr. randolph said that if this course were taken, the senate ought to be notified of this act of courtesy on the part of the house; if not, it might appear that the president of the senate took the chair as a matter of right. he said he knew that, to many persons, matters of this sort appeared to be of minute importance, but in every thing touching the privileges of this house, as it regarded the claims of the other co-ordinate branches of the government, he would stickle for the ninth part of a hair. it was well known that, in england, the privileges of the commons had been gained inch by inch from the kings and nobles by a steady perseverance; and that man must have very little knowledge of mankind, indeed, who was not persuaded that those privileges might be lost, as they were gained, by gradual and imperceptible encroachment on the one hand, and tacit yielding on the other. this was not a matter of great consequence in itself; but power always begot power. it was like money, he said; any man could make money who had money. so any man, or body of men, who had power, could extend it. i have no objection, said mr. r., very far from it, to the constitutional exercise of the powers and privileges of the senate. let their president count the votes, sir; there is a very good chair for him in which the clerk now sits. but, on what principle is he to come into the house with the consciousness that he has a right to throw you out of the chair, sir, and take possession of it? i have no idea of suffering a man to come through those folding-doors with such a sentiment. if he comes into this house, he comes from courtesy, and cannot assume your chair, mr. speaker, as a matter of right, but as a favor. and, if the president of the senate takes possession of your chair as a favor, it ought to be announced to the senate as such; for, the mere vote on our side amounts to nothing, provided that he, and the body over whom he presides, come into this house under the knowledge, (without an intimation from us,) that you are to leave your chair, and he is to take possession of it. mr. smilie observed that there was no fear of the privileges of this body being encroached upon by any other, for there was a written constitution, prescribing the powers of each body; and, at the same time that it was proper to be careful of their own rights, he said the house should be careful not to infringe on the rights of the other body. in respect to this question, there was a case in point. in one instance while congress sat at philadelphia, the senate had come into the representatives' chamber to count out the votes, and the president of the senate had taken the chair as a matter of right. we, said mr. s., are sitting as a convention of the two houses, for a special purpose, viz: to count out the votes. who is properly the presiding officer in this case? unquestionably the officer directed by the constitution to open the votes. and i consider the speaker of the house, on this occasion, as acting in the same capacity as any other member of the house. after some further observations on the subject from messrs. masters, lyon, and macon, the motion of mr. nicholas was agreed to--yeas . mr. randolph then moved that the senate be acquainted, by message, of this arrangement. agreed to--yeas . the resolution first offered by mr. nicholas was then agreed to. on the suggestion of mr. van dyke, it was agreed that the members should receive the senate standing and uncovered. the time for counting the votes having arrived, the members of the senate, preceded by their sergeant-at-arms, entered the representatives' chamber, mr. milledge, the president _pro tempore_, took the speaker's chair, and the members took their seats on the right hand of the chair. the tellers were ranged in front, and the clerks of each house on the right and left of the tellers. the president of the senate opened the electoral returns, one copy of which was handed to the teller of the senate, mr. s. smith, who read it; the tellers of the house, messrs. nicholas and van dyke, comparing the duplicate returns handed to them. when this business, which occupied about two hours, was concluded, the tellers handed their report to the president of the convention, who was proceeding to read it, when mr. hillhouse observed that the returns from one of the states appeared to be defective, the governor's certificate not being attached to it. he thought that this might be as proper a time to notice it as any. nothing farther being said on the subject, however, the president of the senate read the following statement of the votes, as reported by the tellers: (for the statement of the votes see senate proceedings of the same day, _ante_, p. .) thursday, february . _non-intercourse._ mr. taylor said it would be recollected that, in the course of the public business of this session, a resolution reported by a committee on our foreign relations arising out of a motion of a member from north carolina, for the purpose of interdicting commercial intercourse with such belligerents as had in force decrees or edicts against the lawful commerce of the united states, had been agreed to and referred to the same committee, who had reported a bill for non-intercourse. this bill in fact, however, comprised but one-half of the whole subject embraced by the words "non-intercourse." the bill as reported to this house provided for the non-importation of the goods, wares, and merchandise, the growth and manufacture of these particular countries. that (said he) may be readily accounted for, from the circumstance that the house was then actually engaged in passing a law for the enforcement of the embargo, the committee therefore having only in view the other part of the question, so as to complete a non-intercourse. after that bill was reported, a gentleman from tennessee, (mr. rhea,) in order that the whole might be incorporated into one, offered a resolution for that purpose. i did think it unnecessary at that time; but as the course of business seems to look towards a repeal of the embargo, in order that the whole subject of non-intercourse may be incorporated in the bill before the house, i move that the committee of the whole be discharged from the consideration of the bill, and that it may be referred to a committee, in order that it may be made in fact what the title imports it to be, completely, a bill for non-intercourse between this country and those nations having in force decrees affecting our neutral rights. the committee of the whole was discharged from the further consideration of the bill, ayes . the effect of the votes of this day, is to refer to the committee on foreign relations, composed of messrs. g. w. campbell, nicholas, bacon, taylor, fisk, j. montgomery, mumford, champion, and porter, the several propositions for the repeal of the embargo, for arming the merchant vessels, for non-intercourse, for excluding armed vessels from our waters, and for declaring the first capture made in violation of the neutral rights of the united states to be a declaration of war, &c., with leave to report by bill. the chief argument in favor of this general reference was, that these propositions might be merged in one bill which should present a general system, and thus render less complicated the proceedings of the house on these resolutions. the main arguments against it were, that it would destroy all that had already been done in committee of the whole, and probably present a system at length to the house which would not be approved, and thus produce no other effect at this late period of the session than to protract discussion; and also that it would encourage that speculation now going on in the mercantile towns, and be ruinous to many men of moderate capitals who had embarked their all in the purchase of produce, in the certainty that the embargo would be raised on the th of march. tuesday, february . _additional duties._ the house resolved itself into a committee of the whole on the bill for imposing additional duties on all goods, wares, and merchandise imported into the united states. [this bill provides "that an additional duty of ---- per centum on the permanent duties now imposed by law upon goods, wares, and merchandise, imported into the united states from foreign ports or places, shall be laid, levied and collected upon all goods, wares, and merchandise, which shall, after the thirty-first day of january, , be imported into the united states from any foreign port or place; _and a farther addition of ten per centum shall be made to the said additional duty in respect to all goods, wares, and merchandise, imported in ships or vessels not of the united states_; and the duties imposed by this act shall be levied and collected in the same manner, and under the same regulations, mode of security, and time of payment, respectively, as are already prescribed by law, in relation to the duties now in force on the importation of articles imported from any foreign port or place. that this act shall continue in force until the first day of april, , and no longer: provided that the additional duties laid by this act, shall be collected on such goods, wares and merchandise, as shall have been imported previous to the said day."] wednesday, february, . _non-intercourse._ on motion of mr. nicholas, the house resolved itself into a committee of the whole on the bill for interdicting commercial intercourse between the united states and great britain and france, and for other purposes. mr. milnor moved to strike out the first section of the bill, with a view to try the principle of the non-intercourse system. in support of this motion, he alleged the impossibility of carrying the system into effect; for he conceived that the embargo had been ineffectual from the impossibility of carrying it into complete effect, and the proposed system would be as difficult to enforce. he thought that it would be impossible to carry a non-intercourse system into effect, as long as vessels were permitted to go to sea. he had many other objections to this bill, among which were these: that, although it raised the embargo only in part, the permission to vessels to go out, would render the provision for a partial embargo nugatory; that, if the bill were to pass in its present shape, it was to be doubted whether any revenue officer of the united states would understand the duty enjoined on him by it; that a time only two days previous to the meeting of the next congress was fixed upon as the day upon which the non-importation should go into operation, and thus the bill appeared to manifest a distrust of that congress, who certainly would be more competent than the present congress to decide on its propriety at that time; that a non-intercourse between these countries, would but compel our citizens to pay a double freight to and from the entrepôt, without producing any other effect than injuring our own citizens; that goods from these countries, although their importation were interdicted by law, would be introduced nevertheless; that the extent of the territory and seacoast of the united states was so great that all efforts to interdict the importation of goods must be ineffectual, for they would be introduced contrary to law; thus depriving the united states of the revenue which would be derived from them, if their importation were permitted by law. rather than accept this system, mr. m. thought it would be better that this country should remain yet longer under the pressure of the embargo, which he had no doubt must be repealed early in the next session. mr. quincy entered at considerable length into an examination of the system of coercion on foreign nations, by means of commercial restrictions. the idea of the efficacy of this system, he traced to a deeper root than any administration under this government. it was an error of the american people, originating in a period antecedent to the revolution; it grew out of our colonial regulations. it began to be a favorite belief with the people, antecedent to the year , and was then fostered by the patriots of that day, the idea being also encouraged by the patriots of england. mr. q. entered into a comparative statement of the exports from and imports to great britain from america at two different periods, viz: the nine years preceding the year , and the nine years succeeding it, with a view to show that the average imports into great britain from all the world, during the nine years' peace with this country, amounted to about one-thirteenth more than the average imports during the same period of war; and the exports diminished, nearly in the same proportion. from his statements on this head and a comparison of the present relative situation of the two countries, mr. q. drew the inference that this supposed means of coercing the european powers, did not exist. he deemed it peculiarly unfortunate that a confidence in this power of coercion had so long existed, as it had prevented the united states from making preparations which they otherwise might have made. he hoped the idea would now cease. in relation to our present situation, he recommended a plain remedy, comprised in two words: "follow nature." what did she first dictate for remedying any complaint? the removal of all obstructions on her operations. mr. q. therefore recommended the removal of the embargo, the repeal of the non-importation act, and the abandonment of the non-intercourse system. he wished "peace if possible; if war, union in that war;" for this reason, he wished a negotiation to be opened unshackled with those impediments to it which now existed. as long as they remained, the people in the portion of country whence he came, would not deem an unsuccessful attempt at negotiation to be cause for war; if they were moved, and an earnest attempt at negotiation was made, unimpeded with these restrictions, and should not meet with success, they would join heartily in a war. they would not, however, go to war to contest the rights of great britain to search american vessels for british seamen; for it was a general opinion with them that if american seamen were encouraged, there would be no occasion for the employment of foreign seamen. a removal of the embargo, without adopting any other measure, until the event of negotiation had been tried, mr. q. said, would first prevent any collision with the belligerents which might tend to embarrass negotiation; and, secondly, would give an opportunity to the country to ascertain what would be the practical operation of these orders and decrees, on our commerce; and give an opportunity to the next congress to shape its measures according to their actual effect. if commerce did not suffer, the knowledge of this fact would supersede the necessity of any other measure, and peace would follow of course; if, on the contrary, a general sweep was made of all the property afloat, it would unite all parties in a war. mr. q. concluded a speech of two hours in length, by lamenting the state of the country, and invoking the spirit which "rides the whirlwind and directs the storm," to guide the nation to a happy result. mr. nicholas replied to the observations of mr. quincy on the subject of the legal opposition to the embargo laws in massachusetts. he said if the laws of the nation were to be resisted in the manner in which he lamented to say that he saw it contemplated in one part of the community, it became the duty of this legislature to meet it; it was not compatible with their duty to shrink from it. he could not consent that thirteen or fourteen states should submit to one. as men vested with certain powers by the constitution, congress could not transfer the powers to any state legislature or to any town. in relation to negotiating with measures of coercion in existence, mr. n. asked, when did the violations of our rights commence? so long ago that the precise time could not be fixed. when did our coercive measures commence? in . mr. n. noticed the negotiators during whose ministry abroad these injuries had commenced, and continued. mr. king, mr. monroe, and mr. pinkney, all honorable men, had successively represented the united states in great britain. and could any thing be gathered from any thing they had ever written or said, to induce a belief that this government had not acted with sincerity? there was the most conclusive evidence to the contrary. mr. n. said, he would ask nothing of great britain or france that would tend to sacrifice their honor; and he wished, when gentlemen dwelt so much on the regard of foreign nations for their national character, that they would respect a little the character of our own country. mr. d. r. williams said he had been decidedly in favor of issuing letters of marque and reprisal at once; he believed it would have cut off all that fungus matter now deteriorating the body politic--for the people of new england were as patriotic as any, and when the choice was between their own and a foreign country, they would cling to their own. it was the hot-bed politicians who stirred them up; and it was necessary to do something promptly to put an end to their intrigues. mr. w. disliked the non-intercourse system throughout. if he could not get war, or a continuance of the embargo, he wished, inasmuch as great britain and france had each interdicted us from going to the other, to declare that neither their armed nor unarmed ships should contaminate our waters. this was a system which required no exertion of patriotism to carry into effect, which could excite no animosities between the north and south. in relation to the non-intercourse, he believed that it could not be enforced, and used a variety of arguments to show that it could not. if it could be enforced, he believed it would be prodigiously partial. if the embargo was to be taken off, and war not to be substituted; if the nation was to submit, he wished to do it profitably. if the embargo were raised as to a single spot, it was raised entirely to all effectual purposes. then let your vessels go, said he, without let or hindrance; let them go and be burnt; your merchants will then feel that the embargo was a shield spread over them, and will come back to your protection, like the prodigal son, and unite like brethren in the common cause. mr. w. said, his plan was to interdict the entrance of our ports to belligerent vessels, armed or unarmed, and lay a tax of fifty per centum on their manufactures. great britain must, then, either go to war or treat with us. if she was inclined to go to war in preference to revoking her orders in council, let her do so. but he was inclined to believe that she would treat. if she seized our vessels, however, the effect would be inevitable. division amongst us would be done away, all would unite heart and hand in war. mr. w. replied to a number of the observations of mr. quincy, particularly in relation to his position that all obstructions ought to be removed with a view to negotiation. he asked, what security had the united states, if they did all this, if they submitted to such abject humiliation, that great britain would treat? was it to be expected that she would treat more liberally with us, when we solicited as slaves, than she would while we magnanimously contended for our rights? the gentleman from massachusetts, when repeating his creed, had forgotten a part, viz: "unfurl the banners of the republic against the imperial standard!" this would complete a project he had lately seen proposed from the east; and, as to its application, coinciding with the wishes over the water, would be just such a project as mr. canning might dictate. "revoke your proclamation, remove the embargo," and "unfurl the republican banners against the imperial standard." mr. w. concluded a speech of an hour and a half in length, with giving notice that he should move to amend the bill, when the present motion was decided, by striking out all that part of it relating to non-intercourse, and inserting a provision interdicting the entrance of our harbors to any vessels of great britain and france, and imposing an additional duty on all goods imported from those countries. when mr. w. concluded, the committee rose, and obtained leave to sit again. thursday, february . _additional duties._ the house resolved itself into a committee of the whole, on the bill for imposing additional duties on all the goods, wares, and merchandise, imported into the united states. the bill was amended so as to take effect "from and after the passage thereof." the proposition offered by mr. d. r. williams, when the bill was before under consideration, was withdrawn. mr. cook renewed the proposition, viz: to confine the duties to be increased, to goods imported from great britain and france, and the colonies of either; and spoke an hour and a half in support of his motion, and in opposition to the non-intercourse system. he was in favor of discriminating duties, because he was opposed to the non-intercourse, which he considered the best means of depressing our navigating interest and advancing that of britain; because the produce of the united states would be carried to some place of depot in the vicinity, and thence be carried to europe in british bottoms, while a large proportion of american shipping would be inactive. he thought that, under the arming system, we could trade with at least as much honor and with much more profit than under the non-intercourse system. he contended that the non-intercourse system was precisely calculated to destroy that moral principle which had heretofore so strictly enforced our revenue laws; that the system of restriction was partial, operating so equally on the people of the south, that no individuals particularly suffered from it, while in the north and east individuals were ruined by it, and thus a general distress produced; that it would be the most discouraging act to the mercantile interest, ever passed by the government, for it would throw the trade in all the produce kept in the country by the embargo into foreign hands at the expense of the american merchant; that the system could not be enforced with so extensive a frontier and seacoast as we possess; that it was a measure calculated to produce irritation on foreign nations, without having the least coercive effect; that it was a political suicide, without the consolation of company in it. mr. c. was, with his constituents, in favor of further negotiation, and a firm assertion of our rights, which, if refused to be acknowledged, he would maintain. it was high time to abandon visionary schemes and impracticable projects, and to pass good, plain, common sense laws. he believed that this discrimination of duties and arming our merchant vessels would be such a law. he spoke more than an hour and a half. mr. c.'s motion was negatived by a very large majority. the committee then rose, and reported the bill. the amendments made in committee of the whole were severally agreed to by the house; and, on the question that the bill be engrossed for a third reading, mr. livermore called for the yeas and nays. there were for it , against it . _non-intercourse._ the house again resolved itself into a committee of the whole, on the bill for interdicting commercial intercourse. mr. milnor's motion for striking out the first section being under consideration-- mr. nicholas rose and addressed the chair as follows: mr. chairman: i shall not conceal or disguise my opinion; it has been and continues to be, that when the embargo shall cease, war will be the only proper and honorable course for this country to pursue, if reparation shall not have been made for the injuries we have received. under this conviction, i proposed a resolution limiting the duration of the embargo, and authorizing, at the same time, the issuing of letters of marque and reprisal. i trust, sir, i shall be pardoned for expressing the deep regret and affliction i feel for the failure of a measure so important in my judgment, to the best interests of my country. i voted for the embargo as a precautionary and as a coercive measure. in its first character, its wisdom must be admitted by all. its effects as a coercive measure would, i believe, have been equally certain, if the misconduct of some of our own people, and the revolution in spain, had not impeded its action. unless we were determined to persevere in our claims for redress, and to assert our rights, the embargo, even as a measure of precaution, was unnecessary. it gave no protection to our property abroad, it gave it no security on its way home, it only preserved it after its return. when the injuries of which we complain were inflicted, our choice was between submission and resistance. we determined to resist, and commenced our resistance by laying an embargo, with the hope that it might of itself induce the belligerents to do us justice; and if this expectation were disappointed, that we might prepare for war, by preserving in our own possession our essential resources--men and money. if resistance was not our determination, i do not hesitate to say, that the embargo was unwise and unnecessary. if we intended ultimately to abandon our rights without another effort, we should have suffered less both in reputation and in property, by immediate submission, than by now receding from the ground we have taken. i do not believe that a single supporter of the embargo looked to it as the last resort of this country. for myself, i disclaim the impression, and declare that i was ready to abandon it for war, when its primary objects should be attained, and its coercive power fairly tested. i have stated that i considered the return of our citizens, the security of our property, and the employment of time in preparation for war, as the great and more certain effects of the embargo. all these advantages we have derived from it. i believe it is time to change our measures, and to place our future reliance upon providence, and upon the energies and valor of our citizens. upon this point, however, i think with a minority. there has been a vote of this house against immediate war. under these circumstances what ought i to do? i must either vote against every expedient which falls short of what i deem the most proper course, or assent to that which accords most with what i think right. if it were my individual concern, i should certainly rely upon my own judgment: but when every thing dear to my country is at stake, i cannot justify to myself a pertinacious adherence to a proposition already rejected by a great majority, which would hazard the loss of a measure, the best, in my opinion, that can be obtained. after having offered what i thought the best, and seen it rejected, i think with the gentleman from south carolina, that i am at liberty, and that it is my duty, to unite with others in support of attainable measures which appear to me to be conducive to the interest of the country. the bill upon your table appears to me to be such a measure. it maintains our attitude towards the belligerents better than any measure which i have heard proposed, and if it be not the most effectual resistance, at least, it is not submission. it continues our solemn protest against their violations of our rights; it takes new, and in some respects, stronger grounds against them. it excludes from our waters, ports, and harbors, all their vessels, public and private; it excludes from our country all their products and manufactures; and forbids our citizens to debase and degrade their country by a commercial intercourse which would stain and pollute them with the payment of an ignominious tribute to a foreign nation. it reserves the great question to be decided by the next congress, which will be informed of the wishes of the american people; who can best determine how far they will submit to have their rights trampled on, at the will and pleasure of foreign nations. by keeping the question open for their discussion, i have the utmost confidence that our rights, honor, and independence, will be maintained. the gentleman from pennsylvania asked yesterday, why not repeal the embargo laws, and provide for the enforcement of this system by a new law? in addition to the reasons i have stated, i will mention another, which has great weight. we are told that one of the states of this union is about to pass a law, imposing penalties on persons employed in the execution of those laws within that state. i will never consent, under these circumstances, to adopt any measure which might wear the aspect of yielding to a threat like this. no man laments more sincerely than i do, that the legislature of any state should take such a step, but i think it of the utmost importance that the government of the united states should maintain its authority, and that it should be ascertained whether its measures may at any time be embarrassed by the legislatures of one or more states, or its laws annulled by their authority. such could not, i believe, have been the impression either of the people or of the states when the general government was formed; and if this conduct be persevered in or submitted to, it will, in effect, supersede the government, and must speedily terminate in its dissolution. i hope and trust that the wisdom and patriotism of the legislature of massachusetts will not permit such a law to be enacted. otherwise, i do not doubt that the people at the spring elections, will choose men solicitous to heal, by every means within their power, the wounds inflicted on the constitution. it is a painful duty to notice this subject. i have ever been devoted to the union of the states. i would cherish and support it at every hazard, and would sacrifice to its preservation every thing but the rights and liberties of one section, in compliance to the wishes of another. on such conditions it would be vassalage, not union. to yield in the present instance, would be yielding the government to a minority. it is not practicable, however, to act upon the subject during the present session, nor do i wish it. i have the utmost confidence in the people of massachusetts, and have no doubt but that their good sense will apply the proper corrective. if they do not, it will then remain for the other states, after giving to the subject the solemn and deliberate consideration which it merits, to decide whether they have a government or not, whether it is compatible with their happiness and interests to preserve a government whose acts are binding on them only who are willing to obey them; whether they will submit that the public officers of the united states shall be punished for the faithful performances of their duty. i have confined my observations within as narrow limits as possible. it is not now necessary to speak of our injuries, of the necessity of resistance, nor even of the superior advantages of any particular mode of resistance; for it is, i believe, a very prevalent opinion in this house, as well as with the nation, that we have already deliberated enough, and that it is incumbent on us to act. i will, therefore, very briefly notice some objections i have heard to the bill. it is urged that our products will find their way to great britain and france, but certainly to great britain, by circuitous routes, and that we shall derive less profit from them on that account, than if a direct intercourse were permitted. this cannot be denied, nor is there a man who would not prefer a free trade with the whole world, if it could be enjoyed upon equal and honorable terms, to a commerce so limited and shackled as ours is at this time by the belligerent edicts. the question is not now how we can most advantageously avail ourselves of a momentary commerce, but how we can assert the national sovereignty, and best secure the permanent interests of the united states. no gentleman, i presume, will contend that it is better for us to permit a disgraceful intercourse with any nation, than to endure a temporary privation, until we can trade on fair and honorable terms. gentlemen cannot delude themselves with any expectation of advantage from the commerce now allowed to us. the two most valuable products of this country must ruin and beggar those interested in their culture--i mean cotton and tobacco. it is well known that the quantity of tobacco annually produced, is fully equal to the annual consumption, and that we have now two crops on hand; while the edicts of great britain and france are continued, it would be folly to cultivate this plant, and it is more or less true of every other product of our soil. if we were at war with these nations, our products would reach them through the same circuitous channels into which they will be forced by this law, but certainly that consideration would not be deemed a good argument for permitting direct intercourse with our enemies. as to the difficulty of excluding their products and manufactures, it is very possible that we may not be able to do it entirely, but i am satisfied that we shall do it essentially. the great avenue through which british goods can be most easily smuggled into this country is canada, and that, i doubt not, will soon be closed if the edicts be not rescinded. the present state of things cannot long continue; i have no hesitation in saying that it ought not, and that the next congress must either abandon the contest, or resort to more effectual means for the maintenance of our rights than commercial restrictions and prohibitions. the gentleman from south carolina, whose eloquence i admire, and whose patriotism i honor, speaks of this measure as submission, and considers that which he proposed as resistance--not indeed as the measure of his choice, but as the one which is next to it in his estimation. it must be obvious to the house, and i am sure it will be equally so to the gentleman himself, that if his system would be resistance, the course indicated by the bill has in that view superior merit. the gentleman acknowledges the principal advantage of his plan to consist in this, that it would deprive british vessels of the transport of our produce; if it can be shown that this object will be accomplished more effectually by the bill in its present form than by the proposed alteration, it is fair to expect for it his support. if this plan were adopted, great britain would regain her full share of the transport of our produce by augmenting the duties in favor of her own bottoms to an amount that would be an indemnity for a short voyage, by opening the port of halifax, and another port at st. mary's, to our vessels, and all that would then remain to our own vessels would be the profits of the coasting trade from our harbors to those ports of deposit. if i believed this course the most honorable and effectual mode of resisting, i would willingly embrace it; but, sir, i can never consent to any plan by which a direct commercial intercourse is to be produced between this country and great britain and france, while their edicts continue in force. nor will i ever abandon the hope and belief that my countrymen possess the manly spirit of independence, the honorable pride and character which will disdain to barter for gold, or for a miserable fragment of commerce, those rights which were purchased by the valor and the blood of their fathers. the question was taken on striking out the first section of the bill and negatived--yeas . saturday, february . another member, to wit, marmaduke williams, from north carolina, appeared and took his seat in the house. _clarkson's history of slavery._ the speaker laid before the house a letter from thomas p. cope, offering to the acceptance of congress, in behalf of the american convention for promoting the abolition of slavery and improving the condition of the africans, lately assembled in the city of philadelphia, a book, entitled "clarkson's history of slavery," which is requested to be deposited in the library of congress. the said letter was read; whereupon a motion was made by mr. milnor, that the house do come to the following resolution: _resolved_, that the speaker be requested to acknowledge the receipt and acceptance of "clarkson's history of slavery," presented by the american convention for promoting the abolition of slavery, and improving the condition of the africans; and that the said work be deposited in the library. and the question being put thereupon, it was resolved in the affirmative-- to . _non-intercourse._ mr. clopton said: mr. chairman, being one of those who are not willing to exchange the embargo for the system of non-intercourse now proposed, i move you to strike out this section of the bill. in making this motion, sir, i cannot say that i entertain much hope of success, although indeed i do sincerely wish that the motion may prevail. it has been uniformly my opinion, sir, and still is, that the embargo ought to be adhered to until a majority of the great body of the people of the united states should prefer war itself to a longer continuance of it. i cannot perceive any middle course between those two alternatives, which can truly maintain the honor of the nation; and shall this nation descend from that ground to any degree of submission, either openly or covertly, to any nation on earth? god forbid, sir. forbid it every thing that is dear and valuable to us as members of a free and independent nation! long indeed has our country sought the establishment of neutrality, but sought it honorably. the great and prominent object with the united states, as to their exterior relations, always has been to maintain peace--but to maintain it honorably and consistently with the rights of the nation. in pursuit of this object great britain will receive the principal benefit of the trade, notwithstanding the prohibitions of this bill. if american vessels are permitted to go out at all, most of them will go, if not to british ports, to some particular ports, as has been observed, from whence great britain will finally receive their cargoes; and in a short time, perhaps, upon cheaper terms than they could be obtained for in our own ports; and i do not know what is to secure them from capture when bound to other ports, if they fall in with british cruisers, unless indeed they should go into british ports, pay the detestable tribute and accept licenses; and the law will be abundantly evaded by smuggling into the country articles of british manufacture--and no doubt, many of french manufacture too. besides, sir, the consequence of this measure very probably will be war at last, and at no distant period; a war, too, which will commence under great disadvantages to our own country. in this situation of things, mr. chairman, under this accumulation of injuries, the measure of embargo was resorted to--a measure having in view a counteraction to the whole system of aggression carried on against the united states--a measure which has been pursued as a means of bringing about a relinquishment of that atrocious system on the part of the belligerents, and a redress of injuries inflicted on us, together with the preservation of peace. this measure has been thus far pursued for these great purposes; and it has been patiently borne with to this day, by the nation at large, the partial discontents which have appeared in some particular parts of the country only excepted. the nation at large has cheerfully acquiesced in the privations, the inconveniences, and the difficulties incident to such a state of things. it has exhibited a memorable example of self-denial in sustaining this situation, with a view to obtain redress of wrongs and recognition of its maritime rights, without a sacrifice of peace. with this object, fair and honorable negotiation has been resorted to from time to time for a series of years. by this means redress of wrongs has been repeatedly sought, and sought in vain. by this means the government of the united states has exercised itself to procure relinquishment of outrages and violation of our neutral rights; but as often have all its efforts proved unavailing. no wrong redressed--no cessation of outrage yet appeared: on the contrary more numerous and more aggravated ones followed in quick succession. a long series of injurious acts, the offspring of new and (if possible) more atrocious principles than what constituted the pretended ground of former outrages, were pressed with accumulating weight into the train of former outrages, insomuch that those which followed after, taken along with those which had preceded, made up a combined system which threatened to sweep from the ocean almost every particle of canvas, and all the floating property of this great republic. these, sir, are the objects for which this measure has been thus far and so patiently pursued. great and momentous objects, and worthy of a great and magnanimous nation! why, then, should it be now determined at all events to abandon this measure? why should it be so determined, at a period of all others most propitious to the embargo, if continued and executed--a period, of all others, i think, best calculated to give it effect by this house manifesting a firm disposition to adhere to it? for, sir, i consider this as the most critical period, which could possibly arrive, as to the real effect of the embargo. i consider it as the most important period, at which the conduct of this house might render that measure effectually coercive, if it ever can be made so at all--and why, sir, do i think so? because, in the first place, i conceive it cannot even be a question whether the british government has not calculated on the discontents, which appeared in some particular parts of the union, so as to derive at least some expectation therefrom that those discontents might make such impression on congress as to induce them to raise the embargo in the course of this session. those discontents, no doubt, excited grateful expectations of its removal. it is perfectly natural to suppose that such events taking place in any part of this country must have produced calculations of that sort. i cannot but believe, sir, that they have looked forward to the period of this session, with anxious solicitude, to mark the temper of congress in relation to this very interesting subject; and, as they must have presumed that congress could not view such serious events with indifference, some expectation that the effect might be so strong as to induce a repeal of the system could scarcely fail to be the conclusion. such conclusion was to be expected, even if the extent of dissatisfaction had been fairly reported to them--even had it been in no degree misrepresented. but, sir, there are a thousand chances to one that the reports, which conveyed the information to that country, greatly exaggerated the facts--that the picture was drawn in much stronger colors than were consistent with the real truth--that the instances of discontent were stated not only to have been deeper in their nature than they really were, but that a much larger number of persons had partaken of it than really did--that a spirit of disaffection had spread itself far and wide. not a shadow of doubt rests on my mind, sir, that, in all respects whatever, the unpleasant occurrences to which i have alluded, were greatly magnified. with these circumstances others have combined to render the embargo inefficacious as yet, or at least to prevent it from having its full effect. it is to be recollected, sir, that very soon after the law laying an embargo was passed efforts were made to render it unpopular and to excite dissatisfaction. dissatisfactions were not only excited; but many unprincipled persons found means to evade the law and make exportations contrary to its provisions. under a combination of circumstances, then, so encouraging to the hopes of the british government as those must have appeared to them, the continuance of their orders in council until the temper of congress, during this session, could be known to them, is not much to be wondered at. the hope of ultimate success in rendering our commerce tributary to them, which those circumstances, no doubt, contributed not a little to inspire, with such a government, was of itself sufficient ground to induce a continuance of those orders. long experience of british policy, which the united states have had, justifies this opinion. long experience of a systematic design in that government to shackle our commerce and subject it to their arbitrary restrictions, leaves no room to doubt of their disposition to pursue that design until the conduct of this government should convince them of its total inefficacy to produce the object sought for. the slightest prospect of succeeding in their design, however delusive that prospect might be, keeps up their hopes until the delusion vanishes. it remains, then, for the congress of the united states, at this very interesting crisis, to dispel that delusion by a firm adherence to this measure, and thus to disperse every gleam of hope which may have resulted from the circumstances of discontent which had appeared, and the evasions of the law which took place in the country. at this truly critical period, to which their anxious attention has been directed, let this body manifest an inflexible perseverance, and demonstrate to them that all their hopes, founded on those or any other circumstances, are vain indeed. let it be demonstrated to them that this government cannot only resolve upon, and carry into effect, measures of energy, though attended with inconveniences and difficulties, but that it can pursue such measures so long as they shall be deemed expedient for the object in view. let every declaration and every conception concerning the american character, as a nation, in respect to its cherishing an overweening attachment to gain, so as to be willing to submit to indignities for the sake of it, be completely falsified. let it be demonstrated, beyond a possibility of doubt, that there exists not in the great body of the people of this country any love of gain comparable to the love of real national independence and freedom; that this love of national independence and freedom animates the true american soul far beyond any other sentiment, and that, in support of it, the greatest sacrifices of interest are cheerfully acquiesced in. but, sir, what will be the inference drawn from this measure proposing a repeal of the embargo, as it does, after it shall have been adopted. will it not justify assertions, that this government has not stability or firmness enough to carry into effect energetic measures, or such as check the current of wealth for any considerable time from flowing into the country? such assertions, or assertions to that effect, have, i believe, been frequently made; and they have been often repelled by words as slanderous reproaches on the government. sir, let us not take from them the demerit of being slanderous, by affording any ground for the justification. but i fear, sir, i greatly fear, that a repeal of the embargo laws, as now proposed, will go far towards justifying such assertions. this is a period of our political existence, mr. chairman, which renders firmness in the councils of the nation peculiarly requisite. the crisis is vastly momentous and trying, and attended with circumstances, both from within and from without, which strongly call for decision in the legislature. the existence of the government seems almost to depend upon their firmness and decision. whilst the members of this body respect the rights of individuals, let them consider the consequence of being driven from a measure of great importance by the conduct of a small part of the community. it is the duty of each part equally to respect and obey the laws; and if apprehension of the consequence of a faction, clamoring against the acts of the government, should deter it from pursuing its course, such would be an alarming manifestation of its weakness. sir, i fear for the government, almost to trembling. i feel emotions which i cannot express. it is at a point of awful trial and responsibility. the system which, it appears, is about to be abandoned, will be exchanged for a miserable one, which, on our return to our homes, will not draw on us many smiles. the motion of mr. clopton was negatived, to . mr. milnor moved to amend the same section so as to strike out the exception, and making the repeal of the embargo total. mr. varnum supported this motion. if the non-intercourse system was to prevail, he thought it made much more intelligible to the revenue officers by repealing the embargo laws, and enacting the non-intercourse as a new system throughout. he spoke in favor of the repeal of the embargo laws, stating the evasions which had taken place, and that these evasions had not been confined to any particular section of the union. he observed that a partial repeal of the embargo would destroy all the coercive effects of the measure, inasmuch as produce would be let out, and would find its way to every quarter of the world. mr. v. observed that were the amendments agreed to, he should be ready to go with gentlemen in any other practicable measure which they would select for maintaining our rights. the motion of mr. milnor was negatived, to . the committee then rose and reported the bill; and the house adjourned without considering the report. friday, march . _adjournment._ a message was received from the senate, stating that they had appointed a committee in conjunction with such committee as should be appointed by the house, to wait on the president of the united states, and inform him that they had concluded the business pending before them, and were ready to adjourn. a committee was appointed on the part of this house to join the committee of the senate. mr. smilie offered the following resolution: _resolved_, that the thanks of this house be presented to joseph b. varnum, in testimony of their approbation of his conduct in the discharge of the arduous and important duties assigned to him whilst in the chair. mr. rowan moved that it be postponed indefinitely. messrs. rowan and lyon supported the motion; and messrs. eppes and jackson opposed it. the resolution passed, to . the speaker returned his acknowledgments to the house for this tribute of their approbation, as follows: _gentlemen of the house of representatives:_ the kind expression of your approbation of my conduct, in the discharge of the duties which you have been pleased to assign me as speaker of the house, affords me that consolation which an approving conscience alone can surpass. you will please, gentlemen, to accept my thanks for the liberality and candor which you have uniformly manifested towards me: and be assured, that the friendly aid which i have experienced from you in the discharge of my official duty, has made a deep impression on the affections of my heart, which length of time cannot eradicate. mr. cutts, from the committee appointed to wait on the president, reported that they had performed that duty, and that the president had informed them that he had no further communication to make. and the house adjourned _sine die_.[ ] footnotes: [ ] this ordinance of the congress of the confederation, which became the basis of all the territorial governments, was sanctioned by the congress of the union at its first session, with certain provisions added to it in order to give it full effect under the constitution. the following are the terms of this enactment:-- "whereas that the ordinance of the united states in congress assembled, for the government of the territory northwest of the river ohio may continue to have full effect, it is requisite that certain provisions should be made, so as to adapt the same to the present constitution of the united states. therefore, _be it enacted_, &c., that in all cases in which, by the said ordinance, any information is to be given, or communication made by the governor of the said territory to the united states in congress assembled, or to any of their officers, it shall be the duty of the said governor to give such information, and to make such communication to the president of the united states; and the president shall nominate, and by and with the consent of the senate, shall appoint all officers which by the said ordinance were to have been appointed by the united states in congress assembled, and all officers so appointed shall be commissioned by him; and in all cases where the united states in congress assembled, might, by the said ordinance, revoke any commission or remove from any office, the president is hereby declared to have the same power of revocation and removal. sec. .--_and be it further enacted_, that in case of the death, removal, resignation, or necessary absence of the governor of the said territory, the secretary thereof shall be, and he is hereby, authorized and required to execute all the powers, and perform all the duties of the governor, during the vacancy occasioned by the removal, resignation, or necessary absence of said governor." this act of congress, passed to give full effect to this ordinance by adapting its working to the new federal constitution, was among the earliest acts of the federal congress, being number eight in the list of acts passed at the first session of the first congress; and classes with the acts necessary to the working of the new government. as such it was modified; and as such preserved and applied to successive territories, as governments for them were given. that ordinance is, in fact, the basis of all the territorial governments, and is extended to each of them by name, with such modifications as each one required; and its benefits secured in their deeds of territorial cession by georgia and north carolina. thus, the fifth clause in the first article of the georgia deed of cession, dated april th, , stipulates: "that the territory thus ceded shall form a state, and be admitted as such into the union, as soon as it shall contain , free inhabitants, or at an earlier period, if congress shall think it expedient, on the same conditions and restrictions, with the same privileges, and in the same manner, as is provided in the ordinance of congress of the th day of july, , for the government of the western territory of the united states; which ordinance shall, in all its parts, extend to the mississippi territory contained in the present act of cession, that article only excepted which forbids slavery." the deed of cession from north carolina, for the territory since forming the state of tennessee, and dated december ----, , is equally express in claiming the benefits of this ordinance; so that, made before the constitution, it has been equally sanctioned by congress and by states since. virginia sanctioned it immediately after its enactment, and before the commencement of the present federal government, to wit, on the th day of december, . the ordinance being thus anterior to the constitution, was not formed under it, but under the authority of owners--sovereign owners--exercising the right of taking care of their own property, subject only to the conditions and limitations which accompanied its acquisition. and thus the territories have been constantly governed independently of the constitution, and incompatibly with it, and by a statute made before it, and merely extended as a pre-existing law to each territory as it came into existence. [ ] the th, being the anti-slavery article. [ ] this was the end of mr. jefferson's administration; and, notwithstanding the purchase of louisiana, (the annual interest on the cost of which had to be paid,) and the greatly extended frontier which required to be guarded, the system of order and economy which he cherished enabled him to carry on the government (until the privations of the embargo and non-intercourse) without increase of duties, and with a moderation of cost which should form the study and the imitation of succeeding administrations. the duties remained at the same moderate rates as before--the _ad valorems_, - / , , and per centum; the specifics (increased in number) were not increased in rate; the free list not only remained undiminished, but was happily augmented by the addition of salt. the average of the _ad valorems_ was still about per cent., and almost all fell upon the - / per centum class--the importations under the other two classes being inconsiderable, _to wit_, only about half a million, ($ , ,) subject to the per centum; and only a little over nine millions under the per centum; while the imports under the - / per centum class amounted to above thirty-six millions of dollars. the articles used by the body of the people fell into this class, (the other two classes embracing articles which might be called luxuries,) so that - / per centum upon the value may be considered as the duty which fell upon the country. the expenses of collection still remained at about per centum, and the revenue cutter service (there being but little temptation to smuggle under such low duties) cost but a trifle; and the specific list being considerable, the number of custom house officers and agents was inconsiderable. the revenue collected from the _ad valorem_ duties was about seven millions of dollars; that from specifics about nine millions--leaving sixteen millions for the net revenue. of that sum the one-half (just eight millions) went to meet the interest, and part of the principal, of the public debt. of the remainder there went to the military and indian departments about two and three-quarter millions; to the navy about one million; to tribute to algiers, (masked under the name of foreign intercourse,) two hundred thousand dollars; and to the civil list, embracing the whole machinery of the civil government, with all its miscellaneous expenses, about nine hundred thousand dollars--leaving some two millions surplus after accomplishing all these objects. it was a model administration of the government. mr. jefferson's administration terminated the d of march, , but its fair financial working ceased two years before--with the breaking up of our commerce under the british orders in council, and the decrees of the french emperor, and the measures of privation and of expense which the conduct of great britain and of france brought upon us. the two last years of his administration were a strong contrast to the six first, and a painful struggle against diminished revenue and increased expenses, injuries and insults from abroad, and preparation for war with one of the greatest powers in the world, while doing no wrong ourselves, and only asking for what the laws of nations and of nature allowed us--a friendly neutrality, and exemption from the evils of a war with which we had no concern. preparation for war was then a tedious and expensive process; embargo, non-intercourse, fortifications, ships, militia, regular troops. all this is now superseded by railroads and volunteers, ready at any moment to annihilate any invading force; and by privateers, ready to drive the commerce of any nation from the ocean. eleventh congress.--first session. begun at the city of washington, may , . president of the united states,--james madison. proceedings in the senate.[ ] monday, may , . conformably to the act passed at the last session, entitled "an act to alter the time for the next meeting of congress," the first session of the eleventh congress commenced this day, and the senate assembled in their chamber, at the city of washington. present: george clinton, vice president of the united states, and president of the senate. nicholas gilman and nahum parker, from new hampshire. timothy pickering, from massachusetts. james hillhouse and chauncey goodrich, from connecticut. elisha mathewson and francis malbone, from rhode island. jonathan robinson, from vermont. john lambert, from new jersey. andrew gregg and michael leib, from pennsylvania. samuel white, from delaware. samuel smith, from maryland. william b. giles, from virginia. jesse franklin and james turner, from north carolina. john gaillard, from south carolina. buckner thruston, from kentucky. return jonathan meigs, jr., from ohio. joseph anderson, appointed a senator by the legislature of the state of tennessee, for the term of six years, commencing on the fourth day of march last; and obadiah german, appointed a senator by the legislature of the state of new york, for the term of six years, commencing on the fourth day of march last, severally produced their credentials, which were read; and the oath prescribed by law having been administered to them, they took their seats in the senate. _ordered_, that the secretary acquaint the house of representatives that a quorum of the senate is assembled and ready to proceed to business. _resolved_, that each senator be supplied, during the present session, with three such newspapers, printed in any of the states, as he may choose, provided that the same be furnished at the usual rate for the annual charge of such papers: and, provided also, that if any senator shall choose to take any newspapers other than daily papers, he shall be supplied with as many such papers as shall not exceed the price of three daily papers. _resolved_, that james mathers, sergeant-at-arms and doorkeeper to the senate, be, and he is hereby, authorized to employ one assistant and two horses, for the purpose of performing such services as are usually required by the doorkeeper to the senate; and that the sum of twenty-eight dollars be allowed him weekly for that purpose, to commence with, and remain during the session, and for twenty days after. messrs. anderson and gilman were appointed a committee on the part of the senate, together with such committee as may be appointed by the house of representatives on their part, to wait on the president of the united states and notify him that a quorum of the two houses is assembled and ready to receive any communications that he may be pleased to make to them. a message from the house of representatives informed the senate that a quorum of the house is assembled, and that the house have elected joseph b. varnum, esq., one of the representatives for the state of massachusetts, their speaker, and are ready to proceed to business. the house of representatives have appointed a committee on their part, jointly with the committee on the part of the senate, to wait on the president of the united states, and notify him that a quorum of the two houses is assembled and ready to receive any communications that he may be pleased to make to them. tuesday, may . mr. anderson reported, from the joint committee, that they had waited on the president of the united states, and that the president of the united states informed the committee that he would make a communication to the two houses at o'clock this day. james lloyd, jr., appointed a senator by the legislature of the state of massachusetts, for six years, commencing on the fourth day of march last, attended and produced his credentials; which were read. _president's message._ the following message was received from the president of the united states: _fellow-citizens of the senate and house of representatives_: on this first occasion of meeting you, it affords me much satisfaction to be able to communicate the commencement of a favorable change in our foreign relations, the critical state of which induced a session of congress at this early period. in consequence of the provisions of the act interdicting commercial intercourse with great britain and france, our ministers at london and paris were, without delay, instructed to let it be understood by the french and british governments that the authority vested in the executive to renew commercial intercourse with their respective nations would be exercised in the case specified by that act. soon after these instructions were dispatched, it was found that the british government, anticipating from early proceedings of congress, at their last session, the state of our laws, which has had the effect of placing the two belligerent powers on a footing of equal restrictions, and, relying on the conciliatory disposition of the united states, had transmitted to their legation here provisional instructions, not only to offer satisfaction for the attack on the frigate chesapeake, and to make known the determination of his britannic majesty to send an envoy extraordinary, with powers to conclude a treaty on all the points between the two countries; but, moreover, to signify his willingness, in the mean time, to withdraw his orders in council, in the persuasion that the intercourse with great britain would be renewed on the part of the united states. these steps of the british government led to the correspondence and the proclamation now laid before you, by virtue of which the commerce between the two countries will be renewable after the th day of june next. whilst i take pleasure in doing justice to the councils of his britannic majesty, which, no longer adhering to the policy which made an abandonment by france of her decrees a prerequisite to a revocation of the british orders, have substituted the amicable course which has issued thus happily, i cannot do less than refer to the proposal heretofore made on the part of the united states, embracing a like restoration of the suspended commerce, as a proof of the spirit of accommodation which has at no time been intermitted, and to the result which now calls for our congratulations, as corroborating the principles by which the public councils have been guided during a period of the most trying embarrassments. the discontinuance of the british orders, as they respect the united states, having been thus arranged, a communication of the event has been forwarded in one of our public vessels to our minister plenipotentiary at paris, with instructions to avail himself of the important addition thereby made to the considerations which press on the justice of the french government a revocation of its decrees, or such a modification of them as that they shall cease to violate the neutral commerce of the united states. the revision of our commercial laws, proper to adapt them to the arrangement which has taken place with great britain, will doubtless engage the early attention of congress. it will be worthy, at the same time, of their just and provident care, to make such further alterations in the laws as will more especially protect and foster the several branches of manufacture, which have been recently instituted or extended by the laudable exertions of our citizens. under the existing aspect of our affairs, i have thought it not inconsistent with a just precaution, to have the gunboats, with the exception of those at new orleans, placed in a situation incurring no expense beyond that requisite for their preservation and conveniency for future service, and to have the crews of those at new orleans reduced to the number required for their navigation and safety. i have thought, also, that our citizens, detached in quotas of militia, amounting to one hundred thousand, under the act of march, one thousand eight hundred and eight, might not improperly be relieved from the state in which they were held for immediate service. a discharge of them has been accordingly directed. the progress made in raising and organizing the additional military force, for which provision was made by the act of april, one thousand eight hundred and eight, together with the disposition of the troops, will appear by a report which the secretary of war is preparing, and which will be laid before you. of the additional frigates required by an act of the last session to be fitted for actual service, two are in readiness, one nearly so, and the fourth is expected to be ready in the month of july. a report which the secretary of the navy is preparing on the subject, to be laid before congress, will show, at the same time, the progress made in officering and manning these ships. it will show, also, the degree in which the provisions of the act relating to the other public armed ships have been carried into execution. it will rest with the judgment of congress to decide how far the change in our external prospects may authorize any modifications of the laws relating to the army and navy establishments. the works of defence for our seaport towns and harbors have proceeded with as much activity as the season of the year and other circumstances would admit. it is necessary, however, to state that the appropriations hitherto made being found to be deficient, a further provision will claim the early consideration of congress. the whole of the eight per cent. stock remaining due by the united states, amounting to five millions three hundred thousand dollars, had been reimbursed on the last day of the year . and, on the first day of april last, the sum in the treasury exceeded nine and a half millions of dollars. this, together with the receipts of the current year on account of former revenue bonds, will probably be nearly, if not altogether, sufficient to defray the expenses of the year. but the suspension of exports, and the consequent decrease of importations, during the last twelve months, will necessarily cause a great diminution in the receipts of the year one thousand eight hundred and ten. after that year, should our foreign relations be undisturbed, the revenue will again be more than commensurate to all the expenditures. aware of the inconveniences of a protracted session, at the present season of the year, i forbear to call the attention of the legislature to any matters not particularly urgent. it remains, therefore, only to assure you of the fidelity and alacrity with which i shall co-operate for the welfare and happiness of our country; and to pray that it may experience a continuance of the divine blessings by which it has been so signally favored. james madison. the message and papers accompanying it were read and five hundred copies thereof ordered to be printed for the use of the senate. wednesday, may . john condit, appointed a senator by the executive of the state of new jersey, in the place of aaron kitchel, resigned, took his seat, and his credentials were read; and the president administered the oath to him as the law prescribes. john pope, from the state of kentucky, attended. mr. giles submitted the following motion for consideration: _resolved_, that so much of the president's message as relates to a revision of our commercial laws, for the purpose of adapting them to the arrangement which has taken place with great britain, be referred to a select committee, with instructions to examine the same and report thereon to the senate; and that the committee have leave to report by bill or otherwise. friday, may . jenkin whiteside, appointed a senator by the legislature of the state of tennessee, for two years, commencing on the fourth of march last, in place of daniel smith, resigned, took his seat, and his credentials were read; and the president administered the oath to him as the law prescribes. richard brent, from the state of virginia, attended. monday, may . _senator samuel smith, of maryland._ duration of a pro tem. appointment. the president laid before the senate a letter from mr. smith of maryland, stating that being appointed by the executive of that state a senator in conformity with the constitution, until the next meeting of the legislature, which will take place on the th day of june next, he submits to the determination of the senate the question, whether an appointment under the executive of maryland, to represent that state in the senate of the united states, will or will not cease on the first day of the meeting of the legislature thereof? and the letter was read; and, after debate, it was agreed that the further consideration thereof be postponed until to-morrow. wednesday, may . stephen r. bradley, from the state of vermont, attended. _batture at new orleans._ mr. giles presented the memorial of edward livingston, of new orleans, stating that, for a long time prior to the th january, , he was in peaceable possession of a parcel of land called the batture, in front of the suburb of st. mary's, in the city of new orleans. that, on the th of january, he was forcibly removed by the marshal of the district, under the orders of the president of the united states, notwithstanding an injunction had been granted by the superior court against the execution of the warrant; and praying that the possession may be restored to him, and that such measures may be pursued as the wisdom of congress may devise, for providing a legal decision on the title of the united states, if it shall be supposed they have any, to the property in question; and the memorial was read, and referred to messrs. giles, anderson, hillhouse, white, and whiteside, to consider and report thereon. thursday, june . _non-intercourse act--extended to all public armed vessels._ mr. giles offered the following amendment to the first section, to be inserted after the word "assembled:" "that the provisions of the two first sections of the act, entitled 'an act to interdict the commercial intercourse between the united states and great britain and france, and their dependencies, and for other purposes, shall extend to all public armed ships and vessels of all foreign nations, and the same shall be, and are hereby, continued and made permanent, subject, nevertheless, to any modifications and regulations which may hereafter be made by treaty." mr. g. said he felt himself constrained to move this amendment at this time, because he found it impossible to avoid a consideration of the subject involved in it, although he had heretofore hoped that it would not necessarily pass in review during the present session. he said this necessity arose from the limitation of these sections of the act at the last session. the connection of these sections with the commercial non-intercourse system, was contrary to his opinion at that time; he then wished the subject to be taken up and acted upon in a separate bill, and made the permanent law of the land. his opinion then gave way to the respect he felt for the opinion of others. this will appear from the resolution he then moved, "to extend the interdiction to the public armed ships and vessels of all foreign nations." in consequence of connecting that subject with the general commercial non-intercourse, and limiting its duration with that act, it was now rendered a very delicate question. his proposition, however, was, to do now, what it was right to have done at the last session. he said that the proposition was founded upon the principle, that the united states had as absolute and unqualified a right to exclusive jurisdiction over the marine leagues usually attached to independent nations, as to their territorial jurisdiction, and as a consequence from that principle, foreign nations had no more right to send armed ships within our acknowledged marine jurisdiction, than they had to send an army within our territorial jurisdiction. this proposition is, therefore, merely municipal, formed upon an unquestionable right, and it is dictated by the same spirit of impartiality as that which dictated the original non-intercourse law. indeed, it appeared to him the only impartial course now left us, as it respects the belligerents. it ought to preserve the most perfect impartiality, which, mr. canning so justly tells us, "is the essence of neutrality." mr. g. said it could not escape observation, that, in the overtures made by the british cabinet for the revocation of the orders in council of the th of january and the th of november, the obligation to protect our neutral rights against france, heretofore offered on the part of our government, in case of her perseverance in her hostile edicts, had been entirely overlooked, or unconditionally dispensed with. he said he derived much satisfaction from this liberal conduct on the part of the british government, because it manifested a confidence in the honor and firmness of our government, which must be peculiarly gratifying to every american; but it rather increased than lessened the obligation to persevere in protecting our neutral rights against french aggressions, if they should be persevered in, contrary to his expectation. the motive or ground of resisting the aggressions of france cannot, under this overture, be mistaken. in the former case, it might have seemed as if the resistance was dictated by a stipulated obligation to great britain to make it in this; it can only be dictated by a just sense of our own honor, character, and interests, which is left perfectly uncontrolled by the british overture. as this latter motive is the more honorable, it ought to be the more scrupulously adhered to and enforced. he had no hesitation in saying he had uniformly been influenced by this motive alone, entirely disconnected with any stipulated obligation to great britain; and under this influence, alone, he would be found at all times as ready to resist the aggressions of france, as he had at any time been those of great britain, if they should, unfortunately, be persevered in; but, at the same time, he wished to take away every pretext for such perseverance, by persevering in a conduct of the strictest and most scrupulous impartiality toward all the belligerents. at the last session he had supposed, under the general interdiction of all foreign armed vessels, some regulations and modifications, as exceptions from the general rule, might be made by law, but further reflection had satisfied him that the preferable mode was by treaty. he would state two or three reasons for this preference: . it will tend to avoid collisions with all foreign nations. regulations made by law might not suit the views of foreign nations, whereas their consent would be necessary in treaties. . it will give us the aid of a stipulated obligation on the part of the foreign nation making the treaty, to enforce the arrangement. in the case of great britain this consideration is of great importance. its importance results from the strength of her navy, compared with the weakness of ours. . by treaty we may obtain what the lawyers call a _quid pro quo_. we may want, at some future time, the use of some british ports, which she would readily give for the use of ours. he said he would act liberally with her in this respect; and, he believed, considering great britain now at war, and the united states at peace, it would rather accelerate than retard the expected negotiation. he said he was as much opposed to throwing any impediment in the way of the expected negotiation as any gentleman in the united states. great britain cannot, and will not complain. the municipal right now proposed to be carried into effect, is admitted by great britain in its broadest extent, and will not be disputed by mr. canning at the present moment. this will appear from mr. canning's declarations in the debates of the last session of parliament. he said he did not know whether it was correct to read newspapers in evidence, to ascertain the opinions and expressions of the speaker, but if the senate would be content with this species of evidence, contained in a ministerial paper, he would read it for their information. mr. g. then read the following extract of mr. canning's speech, taken from a british ministerial paper: _extract from mr. canning's speech in parliament._ "at the time the application for a compromise had been made by the american government, there was an order in force excluding british ships of war from the american ports, while french ships of war were admitted into them; and, consequently, if the terms offered by america had been accepted, our commerce would have been permitted to america without a ship of war to protect it, while the french commerce would be excluded, at the same time that french ships of war would be admitted if they could succeed in getting there. the ports of america would become nests for french privateers against british commerce. as to the tendency of the measures in agitation in america, he could afford the right honorable gentleman some consolation, by assuring him that they would not have all the ill consequences he seemed to apprehend. a circumstance appeared by the report of the committee of congress, though clothed in hostile language, which, if made known to his majesty's government in amicable terms, might have led to the acceptance of the terms proposed. the circumstance he alluded to was the resolution for excluding from american ports the ships of war not of great britain, but of the belligerents. the americans, in their character of neutrals, had unquestionably a right to exclude the ships of war of both belligerents from their ports, but could not confine them exclusively to those of one of the belligerents without a violation of that impartiality which is the essence of the neutral character. yet, when that proposition should be disposed of, the whole of the difficulty would not be surmounted, as much would still remain to be accommodated. another point, in which fault had been charged upon his conduct with respect to america, was his having stated that the system would not be given up while the smallest link of the confederation against great britain existed." it will be observed that two important conclusions may be deduced from these observations: . that the exercise of this municipal right is unquestionable. . that mr. canning's objection to its former exercise by proclamation was to its limitation, not its extension. his objection is to its exercise against great britain exclusively and not against her enemies. at the time of making his speech, mr. canning thought the interdiction was extended to all the belligerents; in which case, so far from complaining of its exercise, he says it would furnish an inducement to an accommodation, and his instructions to mr. erskine were, no doubt, given under this expectation. this was the ground taken by the report of the committee of the house of representatives, in the last session, and the senate went further, by extending the interdiction to the public armed ships of all foreign nations; those of peace as well as those of war. this gave the transaction more strongly the character of a mere municipal regulation. this principle was narrowed down, in this bill, to apply merely to great britain and france, and left out altogether the other belligerent powers. mr. canning will probably be much surprised at this limitation; and conceive hostility more pointed than he had anticipated; some of the points may, however, be a little blunted by including france, the most operating and unmanageable of her enemies. he said he did not wish to go one atom beyond mr. canning's opinion upon this occasion. he took great pleasure in concurring with mr. canning upon this point. it was the first instance in which he had concurred in opinion with the gentleman; but he hoped it would not be the last, especially when the opinion favored the rights and promoted the interest of the united states. mr. canning must have acted under this impression when he agreed to make the honorable reparation he had done for the unauthorized attack upon the chesapeake, without requiring a previous revocation of the interdiction of british ships. as this revocation was not demanded nor promised, the arrangement now ought to be made on general principles of justice. he said, without feeling or expressing any regret at any thing he had said or proposed at the last session, he was now as willing as any gentleman to reciprocate the temper lately manifested by the british government, so opposite in its character and tendency from that manifested by the cabinet for several years preceding. he said that no gentleman had yet manifested an intention of removing the interdiction upon british armed ships, until she had actually executed her promise of reparation; and, if the execution of the promise were to precede the revocation of the interdiction, the mode of revocation by treaty, as pointed out by his proposition, would be nearly contemporaneous with that proposed by gentlemen, if now enacted into a law, and it would have an evident advantage, as it respected the feelings of great britain. the mode recommended by gentlemen is founded upon a want of confidence in the promise of great britain, and an ungracious demand for its execution, as preliminary to the revocation, while the mode pointed out by treaty, is founded upon a confidence in the promise; and, without requiring its execution, will insure our own safety by the mere exercise of municipal right; a right which is unquestionable; vouched to be so by mr. canning, and the exercise of which is impartial toward all nations, by extending its provisions equally to all. he said that almost all the injuries and insults sustained by the united states from public armed ships of the belligerents within our waters, were attributable to an inattention to the exercise of this right, and, relax the interdiction when you may, without a stipulated obligation on the part of the belligerents, to respect your neutrality, and your marine jurisdiction, they will be renewed and continued. the principle contended for is not new. it has been before the senate several times, and was adopted at the last session in its broadest extent, as will appear from the following resolution, which he then had the honor of moving. it does not appear from the journals of the senate, that there was any opposition to the following resolution, which was adopted on the th of february last: "the senate resumed the consideration of the motion made on the th instant, that provision ought to be made by law for interdicting all foreign armed ships from the waters of the united states; and having agreed thereto, ordered that it be referred to mr. giles, mr. smith of maryland, mr. crawford," &c. he said he was extremely happy to find the spirit of harmony and conciliation which had hitherto characterized the senate, and he should endeavor to preserve and continue it; and, while he was strongly impressed with the propriety and policy of the amendment, yet he was willing to listen to any other which might be more agreeable to gentlemen, provided it was founded upon a principle of strict impartiality toward the belligerents, which he could not be induced to depart from under any circumstances. when mr. g. had concluded, the further consideration of the subject was postponed until to-morrow. friday, june . philip reed, from the state of maryland, attended. stanley griswold, appointed a senator by the executive of the state of ohio, to fill the vacancy occasioned by the resignation of edward tiffin, was qualified, and took his seat. john smith, from the state of new york, attended. monday, june . _death of senator malbone._ mr. mathewson announced the death of his colleague, francis malbone, who deceased yesterday morning. on motion of mr. lloyd, _resolved_, that the senate will attend the funeral of francis malbone, this afternoon, at five o'clock, from his late residence; that notice thereof be given to the house of representatives, and that a committee be appointed for superintending the funeral. _ordered_, that messrs. lloyd, gilman, and white, be the committee. on motion, by mr. lloyd, _resolved, unanimously_, that the members of the senate, from a sincere desire of showing their respect to the memory of francis malbone, deceased, late a member thereof, will go into mourning for him one month, by the usual mode of wearing a crape round the left arm; and that a sum not exceeding one hundred and fifty dollars be applied out of the contingent fund for placing a neat slab or monument, with a suitable inscription, over his tomb. on motion of mr. lloyd, _resolved_, that, as an additional mark of respect to the memory of francis malbone, the senate now adjourn. and the senate adjourned. tuesday, june . _senator smith's pro tem. appointment._ mr. giles submitted a resolution, which was amended, and is as follows: _resolved_, that the honorable samuel smith, a senator appointed by the executive of the state of maryland to fill the vacancy which happened in the office of senator for that state, is entitled to hold his seat in the senate of the united states during the session of the legislature of maryland, which, by the proclamation of the governor of said state, was to commence on the th day of the present month of june; unless said legislature shall fill such vacancy by the appointment of a senator, and this senate be officially informed thereof. on motion, by mr. anderson, to amend the motion, by striking out all after the word "resolved," and inserting: "that any senator of this body, who holds a seat under an executive appointment, cannot, according to the provisions of the constitution of the united states, be entitled to continue to hold his seat as a member of this body, after the meeting of the legislature of the state from which such senator may be a member." and a division of the motion for amendment was called for, and the question having been taken, on striking out, it passed in the negative; and the motion for amendment having been lost, the original motion was agreed to--yeas , nays , as follows: yeas.--messrs. anderson, brent, franklin, gaillard, german, giles, gilman, goodrich, griswold, hillhouse, lambert, mathewson, meigs, pope, robinson, smith of new york, thruston, white, and whiteside. nays.--messrs. bradley, leib, lloyd, parker, pickering, and turner. wednesday, june . james a. bayard, from the state of delaware, attended. thursday, june . william h. crawford, from the state of georgia, attended. monday, june . _exiled cubans, with their slaves._ on motion, by mr. giles, _resolved_, that a committee be appointed to inquire whether it be expedient and proper, at this time, to make any provision by law for remitting the penalties and forfeitures incurred by the violations of some of the provisions of the act, entitled "an act to prohibit the importation of slaves into any port or place within the jurisdiction of the united states, from and after the first day of january, in the year of our lord one thousand eight hundred and eight," so far only as relates to the introduction of slaves into certain ports of the united states, who were lately forcibly expelled from the island of cuba with the french inhabitants thereof; and that the committee have leave to report by bill or otherwise. _ordered_, that messrs. giles, bradley, anderson, crawford, and franklin, be the committee. monday, june . _exiled cubans._ on motion, by mr. giles, _resolved_, that the president of the united states be requested to cause to be laid before the senate such information as he may deem proper to communicate respecting the unfortunate exiles lately expelled from the island of cuba, and who may have arrived, or are expected to arrive within the jurisdiction of the united states; and, also, respecting any propositions which may have been made to him by the minister plenipotentiary of france, for the purpose of facilitating the removal of any of the said exiles, with their slaves, and other effects, from the united states, to any place within the dominions of france. friday, june . _foreign armed vessels._ mr. leib, from the committee, appointed on the th instant, to inquire into the expediency of providing by law for the exclusion of foreign armed vessels from the ports and harbors of the united states, made report; which was read, as follows: "that, in the opinion of this committee, such an interdiction is within the just and neutral rights of the united states, and, under other circumstances, would be highly expedient and proper. so long as a neutral nation shall confine itself to strict measures of impartiality, allowing no benefit to one belligerent, not stipulated by treaty, which it shall refuse to another, no cause whatever is afforded for exception or complaint. the right to admit an armed force into a neutral territory belongs exclusively to the neutral; and when not guarantied by treaty, as is oftentimes the case, such admission compromises the neutrality of the nation, which permits to one belligerent alone such an indulgence. "as a measure of safety as well as peace, it is incumbent upon the united states to carry into effect such a provision. so long as we are without a competent force to protect our jurisdiction from violation, and our citizens from outrage, and our flag from insult, so long ought no asylum to be given, but in distress, to the armed vessels of any nation. the committee will not bring into view the many injuries and insults which the united states have sustained from the hospitable grant of their ports and harbors to belligerents; nor the facility which has thereby been afforded to them to lay our commerce under contribution. it is sufficient to remark, that great injuries have been sustained, and that imperious duty requires arrangements at our hands to guard our country in future from similar aggressions. "the united states are, at this moment, under no obligation to withhold restraints, within their power, upon the admission of foreign armed vessels into their ports; but the committee are too strongly impressed with the propriety of avoiding any legislative interference at this time, which, by any possibility, might be construed into a desire to throw difficulties in the way of promised and pending negotiations. they are desirous that a fair experiment may be made to adjust our differences with the two belligerent nations, and that no provisions be interwoven in our laws which shall furnish a pretext for delay, or a refusal to yield to our just and honorable demands. "calculating that the overtures which have been made by great britain will be executed in good faith, the committee are willing to believe that the stipulated arrangements will be of such a character as to guard our flag from insult, our jurisdiction from aggression, our citizens from violation, and our mercantile property from spoliation. under these impressions, which the committee have stated as briefly as possible, they beg leave to submit to the consideration of the senate the following resolution, viz: "_resolved_, that the further consideration of the subject be postponed until the next session of congress." saturday, june . the bill freeing from postage all letters and packets from thomas jefferson, was read the second time, and considered as in committee of the whole; and no amendment having been proposed, on the question, shall this bill be engrossed and read a third time? it was determined in the affirmative. monday, june . the vice president being absent, the senate proceeded to the election of a president _pro tempore_, as the constitution provides; and the honorable andrew gregg was elected. _ordered_, that the secretary wait on the president of the united states, and acquaint him that the senate have, in the absence of the vice president, elected the honorable andrew gregg president of the senate _pro tempore_. tuesday, june . _public credit._ the bill, entitled "an act supplementary to the act, entitled 'an act making further provision for the support of public credit, and for the redemption of the public debt,'" was read the third time as amended. on motion, by mr. hillhouse, to postpone the further consideration thereof until the first monday in november next, it was determined in the negative--yeas , nays . wednesday, june . on the question, shall this bill pass as amended? it was determined in the affirmative--yeas , nays , as follows: yeas.--messrs. anderson, brent, condit, franklin, gaillard, giles, gregg, lambert, leib, mathewson, meigs, parker, pope, robinson, smith of new york, turner, and whiteside. nays.--messrs bayard, crawford, german, gilman, hillhouse, lloyd, pickering, reed, and white. _six o'clock in the evening._ _adjournment._ _resolved_, that messrs. pope and brent be a committee on the part of the senate, with such as the house of representatives may join, to wait on the president of the united states, and notify him that, unless he may have any further communications to make to the two houses of congress, they are ready to adjourn. _ordered_, that the secretary acquaint the house of representatives therewith, and request the appointment of a committee on their part. a message from the house of representatives informed the senate that the house have appointed a committee on their part, to wait on the president of the united states, and notify him of the intended recess of congress. mr. pope, from the committee, reported that they had waited on the president of the united states, who informed them that he had no further communications to make to the two houses of congress. a message from the house of representatives informed the senate that the house, having finished the business before them, are about to adjourn. _ordered_, that the secretary inform the house of representatives that the senate, having finished the business before them, are about to adjourn. the secretary having performed that duty, the president adjourned the senate, to meet on the fourth monday of november. footnotes: [ ] list of members of the senate. _new hampshire._--nicholas gilman, nahum parker. _massachusetts._--timothy pickering. _connecticut._--james hillhouse, chauncey goodrich. _rhode island._--elisha mathewson, francis malbone. _vermont._--jonathan robinson, stephen r. bradley. _new york._--john smith. _new jersey._--john lambert, john condit. _pennsylvania._--andrew gregg, michael leib. _delaware._--samuel white, james a. bayard. _maryland._--samuel smith, philip reed. _virginia._--william b. giles, richard brent. _north carolina._--jesse franklin, james turner. _south carolina._--john gaillard. _georgia._--william h. crawford. _kentucky._--buckner thruston, john pope. _tennessee._--joseph anderson, jenkin whiteside. _ohio._--return jonathan meigs, jr., stanley griswold. eleventh congress.--first session. proceedings and debates in the house of representatives.[ ] monday, may , . this being the day appointed by law for the meeting of the present session, the following members of the house of representatives appeared, produced their credentials, and took their seats, to wit: _from new hampshire_--daniel blaisdell, john c. chamberlain, william hale, nathaniel a. haven, and james wilson. _from massachusetts_--ezekiel bacon, william baylies, richard cutts, william ely, gideon gardner, barzillai gannett, edward st. loe livermore, benjamin pickman, junior, josiah quincy, ebenezer seaver, william stedman, jabez upham, joseph b. varnum, and laban wheaton. _from rhode island_--richard jackson, junior, and elisha r. potter. _from connecticut_--epaphroditus champion, samuel w. dana, john davenport, jonathan o. mosely, timothy pitkin, junior, lewis b. sturges and benjamin tallmadge. from vermont--william chamberlin, martin chittenden, jonathan h. hubbard, and samuel shaw. _from new york_--james emott, jonathan fisk, barent gardenier, thomas r. gold, herman knickerbacker, robert le roy livingston, john nicholson, peter b. porter, ebenezer sage, thomas sammons, john thompson, uri tracy, and killian k. van rensselaer. _from new jersey_--adam boyd, james cox, william helms, jacob hufty, thomas newbold, and henry southard. _from pennsylvania_--william anderson, david bard, robert brown, william crawford, william findlay, robert jenkins, aaron lyle, william milnor, john porter, john rea, matthias richards, john ross, george smith, samuel smith, and robert whitehill. _from maryland_--john brown, john campbell, charles goldsborough, philip b. key, alexander mckim, john montgomery, nicholas r. moore, roger nelson, and archibald van horne. _from virginia_--burwell bassett, william a. burwell, matthew clay, john dawson, john w. eppes, james breckenridge, thomas gholson, junior, peterson goodwyn, edwin gray, john g. jackson, walter jones, joseph lewis, junior, john love, thomas newton, john randolph, john roane, daniel sheffey, john smith, james stephenson, and jacob swoope. _from north carolina_--willis alston, junior, james cochran, meshack franklin, james holland, thomas kenan, william kennedy, nathaniel macon, archibald mcbride, lemuel sawyer, richard stanford, and john stanley. _from south carolina_--lemuel j. alston, william butler, joseph calhoun, robert marion, thomas moore, john taylor, and robert witherspoon. _from georgia_--william w. bibb, howell cobb, dennis smelt, and george m. troup. _from kentucky_--henry crist, joseph desha, benjamin howard, richard m. johnson, matthew lyon, and samuel mckee. _from tennessee_--pleasant m. miller, and john rhea. _from ohio_--jeremiah morrow. _election of speaker, &c._ a quorum, consisting of a majority of the whole number, being present, the house proceeded, by ballot, to the choice of a speaker. messrs. n. r. moore, cutts, and porter, were appointed tellers of the votes. mr. n. r. moore reported that the result of the ballot was, that there were-- for joseph b. varnum, ; nathaniel macon, ; timothy pitkin, junior, ; roger nelson, ; c. w. goldsborough, ; blank ballots, . mr. varnum having votes, it was submitted to the decision of the house by the tellers whether the blank ballots could be considered as votes; if not, there being but votes, mr. varnum having , had a majority. mr. w. alston conceived that there could be no doubt on the subject; that blank pieces of paper could not be considered as votes. he instanced the case which occurred in the famous balloting for president in the year ; at which time, after a number of ballotings, the state of maryland, which was divided, gave in four blank votes, and thus decided the election. mr. macon thought there could be no question on the subject; he also recollected the case of the presidential election instanced by his colleague, and was of opinion that blank ballots could not be counted. he hoped that the gentleman from massachusetts (mr. varnum) would be conducted to the chair. mr. randolph said this was no ordinary question which the house were about to determine, at the instance of his friend, (mr. macon,) in his opinion, in a very irregular manner; and mr. r. said that he was certain, if his friend were not himself implicated in the question, he would have been one of the last men in the house to give such a decision against himself; but perhaps this was a peculiarity in his friend's character. are we, gentlemen, (said mr. r.,) to have a speaker of the house of representatives without any election? the committee have not reported that one of the persons voted for had a majority of the whole number of votes even; on the contrary, they have expressly reported that no one had a majority. and will the house consent in this manner to choose a speaker to preside over this body, and perhaps eventually over the destinies of this nation?--for perchance the speaker might become president of the united states. with respect to the precedent in the case of the election of the president of the united states, there was not, he said, the smallest analogy between the two cases. what was that case? it was on a question whether or not there should exist in this country a government, that this device had been used, after some forty or fifty ballotings. in order to give a president to the united states, certain gentlemen had thought proper not to vote at all. but, said mr. r., is time now so precious? is the secretary of the president of the united states knocking at the door for admittance? is the enemy at the gate? is there not time, i beseech you, gentlemen, to proceed in the regular mode to the election of our officers? or, shall we, to avoid the trouble of writing a name twice, establish a precedent, which, if established, may put an end to this government, which is founded on the principle that the majority shall govern? mr. r. said he was more free in expressing his ideas, because he believed that a second ballot would not affect the result; and he put it to his friend (mr. macon) to say whether he himself would consent to take the chair on the vote of a minority. he said he knew him too well; he would not consent to it. he conceived that there was no question before the house, that they had not elected their speaker; and that it was their business to proceed to an election. they were certainly competent, he said, to elect the officers of their own body; and he hoped they would do it _more majorum_--after the fashion of their ancestors. mr. stanford denied that the case which had been cited from the presidential election in had any bearing on the present question. that was a case in which, a state being divided, one-half the representation voted blank, and left to the other half of the representation the right of voting for the state. as, at the same time, a gentleman now from kentucky, (mr. lyon,) then the only representative present from vermont, had, by his single vote, his colleague being absent, decided the vote of that state, he thought there was no analogy. mr. randolph moved that the house proceed to ballot a second time for speaker. the clerk having put the question, it was carried-- to . mr. macon said he certainly felt a sense of gratitude towards those who had voted for him; but he should be obliged to them to vote for some other person. he had rather remain on the floor of the house than be placed in the chair. he had experienced the difficulties of the situation; besides, by an illness during last winter, his lungs had been so affected that he did not feel himself adequate to the task. as his declining the situation might be unexpected to some gentlemen, to accommodate them he would ask a postponement of the ballot for a time. he considered the office of speaker of the house as one of the most honorable in the nation. perhaps none was more so, after that of president and vice president. notwithstanding this, were there a probability of his being chosen, he must decline being placed in the chair. the house then proceeded to a further ballot; and mr. n. r. moore reported the result to be: for mr. varnum, ; mr. macon, ; mr. pitkin, ; mr. howard, ; mr. nelson, , and mr. goldsborough, . mr. varnum having a majority of votes was declared elected, and conducted to the chair; whence he addressed the house as follows: "_gentlemen of the house of representatives_: "the continued manifestation of the national confidence in me, expressed by the representatives of the people on this occasion, fills my heart with grateful sensibility. in obedience to the call of my country, i accept the office assigned me, and will endeavor to discharge the duties of it according to the best of my abilities, and agreeably to the wishes of the house." the speaker having been sworn, the oath to support the constitution of the united states was by him administered to the members, by states. the house then proceeded to the choice of a clerk, by ballot. the votes having been counted, there were-- for patrick magruder, ; daniel brent, ; nicholas b. van zandt, ; william lambert, , and mr. scott, . mr. magruder having a majority of votes, was declared to be re-elected. mr. george poindexter having appeared and produced his credentials, as the delegate from the mississippi territory of the united states, the oath was administered to him by the speaker. mr. macon, from the joint committee appointed to wait on the president of the united states, reported that the committee had performed the service assigned to them, and that the president signified that he would make a communication to congress, to-morrow at twelve o'clock. a message was received from the senate, informing the house that that body was formed, and ready to proceed to business; and that they had appointed a committee to wait on the president of the united states, in conjunction with such committee as the house should appoint, to inform him that they were ready to receive any communication he might have to make. on motion of mr. j. g. jackson, a committee was appointed to act with the committee of the senate. messrs. macon and jackson were named as the committee. the house, after hearing a memorial from joseph wheaton, stating his services, and praying a reinstatement in the office of sergeant-at-arms, from which he had been ejected, proceeded to the choice of a sergeant-at-arms. the whole number was , of which thomas dunn had . he was therefore declared to be re-elected. on balloting for a doorkeeper, the whole number of votes was , of which thomas claxton had . he was therefore declared re-elected. on balloting for an assistant doorkeeper, there were-- for benjamin burch, ; jesse edwards, . mr. burch was therefore elected. mr. dawson.--before we adjourn, it will be necessary to fix on some hour at which we shall meet; that hour heretofore has been eleven; but, as the mornings are now long, as some of the reasons which caused the present sessions have probably ceased, as the select committees will have but little to do, and every gentleman must be anxious to end the session and return home, i would prefer an earlier hour, and therefore offer the following resolution: _resolved_, that unless otherwise directed, the hour of meeting during the present session shall be at ten o'clock in the forenoon. agreed to, to ; and the house adjourned. tuesday, may . several other members, to wit: from massachusetts, samuel taggart; from new york, vincent matthews; from pennsylvania, daniel heister; and from north carolina, joseph pearson, appeared, produced their credentials, were qualified, and took their seats. the journal of yesterday's proceedings having been read-- mr. randolph moved to amend it, so as to record the precise state of the two ballots for a speaker, with a view to a correct understanding of the case, if it should ever be drawn into precedent hereafter. after a discussion of nearly two hours on the subject of the decision of yesterday, and the analogy betwixt it and the case of the presidential election of , mr. randolph's motion was agreed to--ayes . _president's message._ the message of the president of the united states was received, agreeably to the intimation given by the president yesterday to the committee appointed to wait on him. the message having been read, was referred to a committee of the whole house on the state of the union, and , copies ordered to be printed of the message, with the documents accompanying it. [see senate proceedings of this date, _ante_ page , for this message.] thursday, may . _swedish and portuguese vessels._ mr. newton offered a resolution to instruct the committee of commerce and manufactures to inquire into and report on the expediency of permitting vessels of those nations with whom intercourse was permitted, to take cargoes, &c. he stated to the house that at present vessels of sweden and portugal, with whom intercourse is permitted, could not load and depart; and on this subject a letter was read from the secretary of the treasury to the committee of commerce and manufactures. mr. burwell said there was another subject connected with the resolution, which ought to be taken into consideration. the proclamation of the president declares that on the th of june next, the operation of the non-intercourse law, as relates to great britain, shall cease. it went into operation on the th of this month. of course there were many vessels on the coast which could not get in before the th of may. he submitted it to the chairman of the committee, whether it would not be proper at once to do away all restriction, because the policy of its existence had ceased in relation to great britain from the restoration of harmony with her; and if the goods on our coast were not permitted to be regularly landed, they might be smuggled in, and injure the revenue. he thought it would be proper to inquire into the expediency of doing away at once, by law, all interdiction of commerce. mr. newton said he had no objection to act on the subject mentioned by his colleague, but he did not conceive it to be connected with the present motion. mr. newton's motion having been agreed to, he immediately reported "a bill respecting the ships or vessels owned by citizens of foreign nations with whom commercial intercourse is permitted."--twice read, and referred to a committee of the whole house to-morrow. _non-intercourse act._ mr. livermore said that he did not distinctly hear all that fell from the gentleman from virginia, (mr. burwell,) but, from what he had heard, he apprehended that it was on a subject of great importance. there were many vessels on the coast, which, were they to enter our harbors, would fall within the description of the th, th, and th sections of the non-intercourse act. from the happy commencement of the settlement of our differences with great britain, he did not believe it was the design of any gentleman that the non-intercourse should be enforced in this particular. he therefore offered a resolution for suspending the act, as follows: _resolved_, that it is expedient that the operation of so much of the act, entitled "an act to interdict the commercial intercourse between the united states and great britain and france, and their dependencies," as inhibits the importation of goods from great britain and its dependencies, be suspended until the tenth day of june next. friday, may . another member, to wit, robert weakley, from tennessee, appeared, produced his credentials, was qualified, and took his seat. _vote of approbation._ mr. randolph said that for the last eight years or thereabouts an alteration had taken place in the manner of doing business at the commencement of each session of congress. he said he recollected when the first congress under the administration of mr. jefferson had met at this place, instead of congress being opened as heretofore by the president in person and by a speech, a note in these words had been received by the speaker, enclosing a message from the president: "december , . "sir: the circumstances under which we find ourselves at this place rendering inconvenient the mode heretofore practised, of making by personal address the first communications between the legislative and executive branches, i have adopted that by message, as used on all subsequent occasions through the session. in doing this i have had a principal regard to the convenience of the legislature, to the economy of their time, to their relief from the embarrassment of immediate answers on subjects not yet fully before them, and to the benefits thence resulting to the public affairs. trusting that a procedure founded in these motives will meet their approbation, i beg leave through you, sir, to communicate the enclosed message." &c. it is unnecessary, i believe, (said mr. r.,) to state that the hint contained in the message that no answer was to be expected, was taken by the house; and from that day no answers have been given to the message of the president at the opening of congress. it would ill become me, sir, who so highly approved then, and who so highly approve now the change introduced by communicating to the two houses by message instead of by speech, to say any thing that might imply a disapprobation of it. i like it, sir. to tell the truth, the style of communicating by speech was more in the style of the opening of the british parliament by the king. i therefore like the mode of communication by message. but i am not so clear, though we were then half-right, that we were wholly right; though on this subject i do not mean to give a definite opinion. no man can turn over the journals of the first six congresses of the united states without being sickened, fairly sickened, with the adulation often replied by the houses of congress to the president's communication. but nevertheless the answer to an address, although that answer might finally contain the most exceptionable passages, was in fact the greatest opportunity which the opposition to the measures of the administration had of canvassing and sifting its measures; and, in my mind, whatever goes to take away this opportunity, goes so far to narrow down the rights of the minority or opposition, commonly so called, and in fact to enlarge the rights of the majority and the administration party so called; and i beg leave not to be understood as speaking of the state of parties at this time, but of that which has always existed. this opportunity of discussion of the answer to an address, however exceptionable the address might be when it had received the last seasoning for the presidential palate, did afford the best opportunity to take a review of the measures of the administration, to canvass them fully and fairly, without there being any question raised whether the gentlemen were in order or not; and i believe the time spent in canvassing the answer to a speech was at least as well spent as a great deal that we have expended since we discontinued the practice. i do not say that any answer is proper or ought to be given; but i do believe that when this house goes into a committee of the whole on the state of the union, it is for purposes a little more elevated than to dissect the message of the president of the united states, or to strip it up and transfer it to select and standing committees. if that be the whole object of going into a committee of the whole on the state of the union, i can see no reason for having any such committee, nor why the message should not be taken in the first instance, dissected by the knife of the operator most in the fashion of the day, and referred to different committees. and it has a tendency to cast a sort of ridicule on our proceedings, when this august assembly resolves itself into a committee of the whole on the state of the union, and resolves that the message shall be referred to such and such committees; and would induce shallow observers to believe that in fact there is little or no use for such a committee. but whatever may be my opinion on the subject of opening the two houses by message, i do think that there are occasions, and that this is one, on which it behooves this assembly to express its opinion on the state of public affairs. i will not recall to your recollection, sir, because perhaps, and most probably it passed over your mind without making any impression, that some time during the last session of congress, i stated that if the gentleman in whose hand the reins of government were about to be placed did not even tolerably perform the task assigned to him, some allowance ought to be made for the state in which he found the nation. and, sir, when i see the situation of the country so materially changed for the better, am i and is this house to sit still and regard it but as newspaper talk of the day, and express no opinion on it? and what is our opinion? it is either in approbation or disapprobation of the conduct of the executive. in my opinion it is due to the executive that he have an expression of sentiment on this subject. in the part of the country in which i live, dinners have been given, feasts have been held, and the song and toast have passed round in commemoration of the event: and is this house to be insensible, and to leave the president of the united states in ignorance or doubt whether his conduct has or has not received the sanction of their approbation? or is he to get that information from inofficial sources? i hope not. i hope he will get it from ourselves. i therefore move you-- "that the promptitude and frankness with which the president of the united states has met the overtures of the government of great britain, towards the restoration of harmony and free commercial intercourse between the two nations, meets the approbation of this house." mr. findlay said that this proposition contemplated a novelty in the legislative proceeding of this country. where would it end if the house were now to make a solemn resolution approving of the conduct of the president? the answer returned to the speech of the king in monarchical governments committed the house making it to all that was contained in it. the practice in this country had been long considered an evil; indeed, he thought he could show by the journals one instance in which the discussion of a single section in an answer occupied the house fourteen or fifteen days. it was a practice, too, which introduced at the very opening of the session all that irritation that commonly arose in the course of a session. mr. f. said he supposed there was not a member in the house but did approve of the president's exercise of the authority vested in him. he presumed that they approved equally also of the same offer heretofore made to the court of london. if the house were to approbate the conduct of one president, they must approbate that of others; and the conduct of the different administrations under the constitution might be brought into view. mr. f. was totally against this motion, or any other of the kind. mr. dana said that at the present time he should certainly not be for adopting the resolution. the adopting it at this time would certainly not comport with the object professed by the mover, which he had understood to be, to present a question on which there might be a general view of the conduct of the executive in relation to the object in question. if the object was to bring up the question in a regular form, that gentlemen might express themselves fully in relation to our affairs, it was very proper that this subject should be discussed in committee of the whole on the state of the union. for himself, mr. d. said that he thought the mode of answering speeches might do very well in such a government as this, and whatever might be said of economy of time, by an attention to the actual expense, it would be found that in fact very little time was lost by it. at the last session of congress a committee had reported a resolution to which there was but two dissentients; the discussion occupied nearly three weeks. all agreed as to the result, but gentlemen combated each other's arguments. and undoubtedly, mr. d. said, the rapidity with which the message was shot through a committee of the whole, was rather a farcical piece of business--and, indeed, it was not without some little surprise that, when he had come to the house this morning, he found the whole subject disposed of. mr. w. alston said, that when a resolution like the one proposed was presented to him, the substance of which met his approbation, if he was compelled to vote directly upon it, he would rather vote for it than against it. but if it were the object to bring before the house a discussion upon the message of the president, and to return an answer to his excellency's most gracious message, he should certainly be opposed to it. if ever there had been one particular part of the conduct of the former administration which had met the approbation of the republicans of this country generally, it was the discontinuance of this practice. the result of the alteration was, that although more was done during the sessions of the republican congresses, they terminated them three or four weeks sooner than ever had been done before. as to the opportunity which the answers afforded for debate, could any one say that sufficient latitude had not been taken in debate? had not gentlemen even called others by name, and introduced every subject on any question? mr. a. said he was pleased with what had been done, and he could not vote that he was not pleased; but he was certainly opposed to entering into a full discussion, at the opening of each session, of every thing which was to come under the consideration of the house. if they were to take up this resolution, they might as well take some abstract act of mr. adams's, he being still living, and discuss his political life. washington, at least he hoped, having departed from us, would be permitted to rest in peace. mr. bacon said that with other gentlemen, he could not but regret that this proposition had been brought forward. if he were brought to vote upon it, he need not tell the house that he should cordially vote for it; but it was really one of the last observations which he had expected to have heard from any gentleman that we wanted field for debate. he had thought that the grievance was the other way; that the cause of complaint was, that they consumed too much time in debate. he said he should certainly vote for the resolution, were it brought to a direct vote; but, for the purpose of placing before the house the view of the subject which he entertained, he should take the liberty to move an amendment to it, and then move to refer it to a committee of the whole. the amendment was in these words, proposed to be added to the motion:--"and furnishes an additional proof of the spirit of accommodation on the part of the government of the united states, which has at no time been intermitted." mr. j. g. jackson moved that the whole subject be postponed indefinitely. mr. randolph said that as an indefinite postponement was considered as tantamount to a rejection--for it prevents a renewal of the subject during the session, and a rejection does nothing more, as the house had heretofore had a woful experience in the case of certain very pertinacious petitioners; and, as he was afraid, they would again have from a certain body of petitioners, who, he presumed, had not entirely given up their hopes of quartering themselves on the public property--an indefinite postponement, then, being equivalent to a rejection, he certainly was opposed to the rejection of his own motion. he could not have believed that this motion would have been rejected by the house, though he said he had certainly calculated on its being opposed by those who condemned the promptitude and frankness with which the president had proceeded to restore, as far as depended on him, the intercourse between the two nations. it is this part of the conduct of the president of the united states, said mr. r., on which i mean to give an opinion--"by the president of the united states, a proclamation"--and in that proclamation, in my opinion, he has deserved well of his country. i ask the gentleman from pennsylvania, (mr. findlay,) if he is near enough to hear me in this vast room, when have i proposed bringing in review the whole measures of former administration; when have i proposed an answer to an address to the two houses? i have proposed no such thing, sir, although my motion is nearly tantamount to it; because it so happens that the only act of which we have any knowledge, except the laying up the gunboats in dry dock, which i also most cordially approbate, is this very thing. now, i have not the slightest objection, if the gentleman chooses, that the honorable and worthy gentleman from massachusetts should insist on a _venire_ on the conduct of any former president of the united states, but i beg myself to be excused from serving on it. as an unqualified juror, i choose to except myself; for, really, as to one of those presidents, his career does not yet seem to be finished. it would seem as if he meditated another batch of midnight judges, and another midnight retreat from the capital. i do, therefore, except to myself as a juror as to him or any other president. _de mortuis nil nisi bonum._ agreed, sir. let the good that men do live after them, and the evil be interred in their graves. but, i would ask the gentleman from connecticut, and the gentleman from pennsylvania, also, if this be one of their abstract propositions? how abstract, i pray you? or, if it be one of those unmeaning propositions, the discussion of which could answer no good to this house? it would be idle in us now to be trying mr. adams on the merits of the sedition law, the eight per cent. loans, or any other such act. it would answer no purpose; and it would be equally idle and futile to pass any opinion on the merits or demerits of the first four or last four years of the late administration, for this plain reason, the question bolts upon you, _cui bono_? what earthly good can result from it? but is that the case in relation to the executive, on whose future dispositions rest the best interests of this nation? is that a mere idle discussion? and is it come to this? is this house so sunk in the executive opinion, (i trust not, sir; i abhor the idea,) that its approbation of a great course of national policy is to pass for nothing; is it to have no influence on the conduct of the executive of the united states? this, sir, is taking higher doctrine than was ever advanced by those who wished to see the president open parliament by a speech from the throne. it is taking higher ground than the minister of that country from which the precedent was derived. the weight of the house of commons is felt too sensibly there for their inclinations not to be sounded by motions from their chancellor of the exchequer, and their members of opposition, in relation to the great course of foreign affairs. and, sir, shall we now be told that it is a mere matter of moonshine, a thing of no moment, whether this house really does approve the conduct of the administration of the government of the united states, or disapproves it? praise, in my opinion, properly and not prodigally bestowed, is one of the best resources of a nation. why is this house called upon, and i am sorry to say it is, too often, and too lightly, to give its sanction to the conduct of individuals in the public service, if its approbation is estimated so trivially? no, sir; this is a great question which i have presented to you, and gentlemen may hamper it with as many amendments as they please; they cannot keep the question out of sight. some may be _against_ it because they are _for_ it; some because it does harm, and some because it does no good. the question cannot be kept out of sight; it has been presented to the american people and they have decided it, decide you how you may. with respect to the gentleman's amendment, i need not tell him, i presume, that i shall vote most pointedly against it, because, in my opinion, it does not contain the truth. the gentleman from massachusetts (mr. bacon) will be among the last of the members of this house to attribute to me an improper sentiment in regard to him, when i say that it does not contain the truth. if the gentleman from massachusetts chooses, in imitation of another eastern nation--not those who tried their kings after they were entombed, but those who consigned to one common grave the living and the dead; if he be willing to attach the sound, healthy body of the present administration--healthy so far, and, i trust, fortifying itself against contagions--to the dead corpse of the last, let him. he shall not have my assistance in doing it; nor have i the least desire to draw a marked distinction between the two administrations. the gentleman will hardly suspect that i am seeking favor at court. my object is plain. it is to say to the president that, in issuing that proclamation, he has acted wisely, and we approve of it. i know, sir, that there are men who condemn the conduct of the president in issuing the proclamation; and why? they say he was precipitate. where was the necessity, they will tell you, of declaring that the orders in council will _have been_ withdrawn? this is the language of objection. there _is_ a difference of opinion subsisting in this country on these two points. there _are_ men who condemn this proclamation, and men who condemn the construction given by the executive to the non-intercourse law. i approve both. i wish the president of the united states to have the approving sentiment of this house, and to have that approbation as a guide to his future conduct; and i put it to the gentleman from massachusetts whether it be fair to mingle it with the old, stale, refuse stuff of the embargo? no, sir; let him not put his new wine into old bottles. there _is_ a difference of opinion in this country. the president of the united states stands condemned by men in this nation, and, as i believe, in this house, for having issued that proclamation, and put that construction on the non-intercourse law. i wish to see by how many he is thus condemned. i do not wish to see the question shirked--to see it blinked. if there be a majority of the house, as i believe there is, in favor of the conduct of the president, i wish him to have that approbation expressed as a guide to his future, and a support to his present conduct. it is due to him. sir, have i moved you a nauseous, sickening resolution, stuffed with adulation? nothing like it; but, a resolution that the promptitude and frankness with which the president of the united states has met the overtures of the british government towards a restoration of the ancient state of things between the two countries--the state prior to the memorable non-importation act of --meets the approbation of this house. either it does, or it does not. if it does, let us say so. if it does not, let us say so. if gentlemen think this house never ought to express an opinion, but leave the president to grope in the dark as to our views, or get them through inofficial channels, i presume the previous question will be taken, or motion made that the resolution lie upon the table. the gentleman from pennsylvania says, shall we go back, and approve of what he conceives to be similar conduct of the late president of the united states in relation to the embargo? i hope not, sir. but if a majority of this house choose to do so, let them. i shall say no. but, why mingle two subjects together, on which there does exist--and i am afraid it will leak out on this very vote of indefinite postponement--so very material a difference of opinion in different parts of the house? for example: i do not think of the offer about the embargo as the gentlemen from massachusetts and pennsylvania think; and i think it probable that those two gentlemen do not think of this proclamation and the construction given to the non-intercourse law, as i think. and why should we make a sort of hotch-potch of two subjects, on which we do not think alike, for the purpose of getting us all united against both? it is an old adage, and a very homely one, perhaps too much so for the delicate ears of this assembly, that if you put one addled egg into a pudding, you may add fresh ones, _ad infinitum_, but you can never sweeten it. and, sir, i defy the gentleman from massachusetts, with all his political cookery, by pouring out of the jar of our present situation into the old mess, to sweeten it. in the year , we passed that miserable old non-importation act, which last session we repealed; and really, sir, we got rid of it with an adroitness which pleased me exceedingly. never was an obnoxious measure more handsomely smothered by its avowed friends. gentlemen said it was merged in the non-intercourse act, and therefore, as a matter of indifference, they would repeal it; and when the non-intercourse act shall expire by its own limitation, at the end of this session, or be suspended by the president's proclamation, as it is in relation to great britain, there is an end of both; and thus, the old measure, the old, original sin to which we owe our first difficulties, was as much gotten rid of as if a majority of this house had declared it an unwise measure, and therefore repealed it. i do recollect to have heard one gentleman (mr. eppes) say, that unless the section repealing this law were stricken out, he should be compelled to vote against the bill. he conjured the house to cling to the old non-importation act as the last vestige and symbol of resistance to british oppression; but the house was deaf to his call, and the non-importation act was plunged beneath the wave, never, i trust, to rise again. when, therefore, the late president of the united states made an offer to great britain to suspend the embargo as to her, provided she would withdraw her orders in council, i will suppose that she had accepted that offer. in what situation would she have stood in relation to the united states? her fine cloths, her leather, her watches, her this and her that, would have been prohibited admittance into this country under the old non-importation act of , which would have been in force. that act, in point of fact, had no operation on her adversary. her ships would have been prohibited the use of our waters, while the ships of war of her enemy were admitted. did that make no difference? that, sir, would have been the situation of the two countries, provided she had accepted the offer to suspend the embargo as to herself--the old non-importation act in operation, her ships of war excluded, and her rival's admitted. i pray you, was not that the condition of the country when mr. rose arrived? was there not some difficulty, under the proclamation, in the admission of the statira frigate, bearing that minister into our waters? and were not french ships of war then, and have they not since been riding quietly at annapolis, norfolk, and elsewhere? has not, in fact, the gallant captain decatur taken our own seamen out of one of them? and yet, sir, the offer at that time made by us has been identified with the negotiation between mr. secretary smith and mr. erskine. what then was her situation? the non-importation act in force, _her_ ships _excluded_ and those of france _admitted_, and nothing in force in relation to france except the embargo. what is now the situation of affairs? trade with her is restored to the same situation, in point of fact, in which it stood when congress met here in and --at the memorable first session of the ninth congress, which generated the old non-importation act of . her ships of war are admitted into our waters, her trade is freed from embarrassment, while the ships of her adversary are excluded and the trade between us and her adversary forbidden by law. while, therefore, i am ready and willing to approve the conduct of the present administration, it is not because i conceive that they have effected any thing so very difficult--that they have obtained any such mighty concession--but, because they have done their duty. yes, sir; we all recollect that the objections made to the treaty negotiated by mr. monroe, and mr. pinkney, on two great leading accounts: st. that it contained no express provision against the impressment of seamen. is there any provision now made? no, sir. the next objection to the treaty was the note attached to it by lords holland and auckland. what, sir, did gentlemen on this floor say was the purport of this note? that its object was to put us in a state of amity in respect to great britain, at the expense of the risk of collision with france. on account of this note, the treaty and the treaty-makers have been politically damned. and yet, we are now, in point of fact, in that very situation, in relation to the two nations, in which it was said that the british commissioners, by the note, aimed to place us, and which was a sufficient reason, according to the arguments of gentlemen, for rejecting the treaty. the note was a sort of lien, gentlemen said, that would put us in a state of hostility with regard to france, and amity with regard to england. we refused to give our bond, for such it was represented (however unjustly) to be, to be sure, sir; but we have paid the money. we have done the very thing which gentlemen say the note aimed to induce us to do. we have put ourselves in a situation endangering collision with france, and almost insuring amity with england. we have destroyed the old non-importation act. the non-intercourse act is suspended as to her. trade is again free. there is nothing now to prohibit her ships, whether for commerce or war, from coming into our waters, whilst our trade with france is completely cut off, and _her_ ships excluded from our waters. i cannot too often call the attention of the house to this fact, on which i am compelled to dwell and dilate to get rid of this merciless motion, which kills while it professes to cure. when mr. rose came into this country, french ships of war were freely admitted; english ships were excluded. as "the physician, in spite of himself," says in one of moliere's best comedies, _on a changé tout cela_--the thing is wholly reversed. we are likely to be on good terms with england, maugre the best exertions of some of our politicians. trade with great britain is unshackled, her ships are admitted, trade with france is forbidden; and french ships excluded, as far as it can be done by paper. now, in the name of common sense, what more could mr. canning himself want, than to produce this very striking and sudden change in the relations between the two countries? for a long time previous, it was the ships of england that were excluded, while those of her adversaries were admitted. and we know that we could not have touched her in a more jealous point than in her navy. things are now reversed--we have dexterously shuffled the non-importation act out of the pack, renewed trade with her, admitted her ships, and excluded those of france. and what, i ask this house, has the british minister given us in requital for this change of our position in relation to him and his rival belligerent? the revocation of the orders in council--this is the mighty boon. for, with respect to his offer in relation to satisfaction for the attack on the chesapeake, he made that offer to mr. monroe spontaneously, on the spur of the occasion, and there is not a doubt in my mind but that we had nothing to do but to receive it at that time, provided the instructions of our minister had permitted him to receive it; but, perchance, sir, if he had received it, we might have been at this day discussing his message, and not the message of another president. all that mr. canning has given this country is a reiteration of his offer to make reparation for the affair of the chesapeake, and his withdrawal of the orders in council; and to what did they amount? so soon as you, by your own law, cut off your trade with france, he agrees to revoke the orders interfering with it. mr. canning might as well have withdrawn blank paper. they had nothing left to operate upon. the body upon which they were to operate was destroyed by our own act, to wit, the trade of france. and, sir, while i compliment the present state of things, and the conduct on the part of our government which has led to it, i cannot say that we have greatly overreached mr. canning in this bargain, in making an exchange of the old non-importation act with the admission of english, and exclusion of french ships and trade, for the orders in council. mr. canning obtained as good a bargain out of us as he could have expected to obtain; and those gentlemen who speak of his having heretofore had it in his power to have done the same, did not take into calculation the material difference between the situation in which we now stand, and the situation in which we before stood--to say nothing at all of great britain's having taken a stand against the embargo, having declared that she had nothing to offer in exchange for it; that we might keep it as long as we pleased. if she had accepted our offer, as i before stated, the old non-importation law would have been in operation, her ships of war would have been excluded, whilst those of france were admitted. now, the non-importation act is not in force, her ships are permitted to enter our waters, and those of france excluded. and what has this sarcastic minister of great britain given us in exchange? the orders in council, which had completely ceased to operate by the cutting off of the trade between us and france. let me state this argument in a shape most favorable to ourselves, and least so to the british government. i speak as to argument; for, as to friendship between nations, there is no friendship in trade. we ought to get the best bargain out of them that we could, and it was the duty of their minister to get the best out of us. let us throw out of view the exclusion of french ships and french commerce. is the removal of the non-importation act, and the admission of british vessels, nothing? what has mr. canning given you in return? the orders in council--and what were they worth to him? not a straw. mr. holland said he had no doubt that the president had done his duty in the case referred to in the proposition under consideration; and as he had entertained no doubt but the president would, on this and every other occasion, do his duty, he said he felt no excessive joy on the occasion. it was only an ordinary act of duty well performed, and therefore he was not willing to distinguish it from those numerous acts which he trusted would be, as they had heretofore been performed, by the executive. were he the author of the proposition, he should have many scruples as to the propriety of offering such a one. were the precedent to be set by the passage of this resolution, the house might hereafter witness a struggle on the floor to determine who should be first to come forward with a proposition expressive of approbation. the human mind might be so operated upon that the executive might feel himself under an obligation to promote the person bringing forward such a motion. i, said mr. h., would be one of the last to introduce such a motion were i a friend to the president; and if i were not a friend to the president, i would not bring it forward, lest it should be thought that i was courting favor in his eyes. but why, sir, should this house give an expression of approbation of the president? because, we are told, it may be a guide to him hereafter. let this house be careful how it acts, and attend to its own duties. the president does not stand in need of this kind of support. i never will step forward as a member of this house, to excite him to his duty by a vote of this kind. i believe he possesses an attachment to his duty sufficient to induce him to perform it. i believe that the voice of the people of the united states is such, in relation to the present and late president, that they believe they were well disposed to do their duty, and that they have done their duty; but it does not follow that we ought to express our approbation as to any particular act. the gentleman himself says that the president has only done his duty. is it not surprising, then, that we are called upon to give him the approbation of this house? what would be inferred from this procedure? why, that it is so seldom our presidents have done their duty, that, in the very first instance in which they have done it, the house of representatives had discovered and applauded it. if the gentleman thinks so, i wholly disagree with him. if our officers do their duty properly, they will receive the thanks of the nation; and where is the propriety of singling out for approbation or disapprobation this particular act? i see none. it is asked, will you leave the president of the united states to grope in the dark, and not let him know whether he has received our approbation or not? and is the president to judge from the thanks of the house that he has done his duty? how is he to know that they have expressed their sense of his conduct from proper motives? would he not be right to suspect those who vote for, and more especially those who bring forward such a proposition, of improper motives? he would be left still worse to grope in the dark. it has been said that former presidents have been deceived in consequence of votes of approbation; and the same would again occur. on every ground i am opposed to the passing such resolutions on principle, and shall therefore vote for indefinite postponement. it was indefinitely postponed. saturday, may . _sedition law._ mr. stanford said he had risen to offer a resolution, which he wanted to have offered immediately after that which had been offered by the gentleman from virginia, (mr. randolph,) and adopted by the house, on the subject of prosecutions for libel at common law; but not being able to get the floor, he would now beg leave to move his by way of instruction to the same committee. that committee, mr. s. said, had been charged with an inquiry into what prosecutions for libel at common law had been instituted in the courts of the united states, which he hoped the committee would duly make, and lay before the house. thus the house would see what system of persecution, if any, had been resorted to, and cherished by the late administration or its friends, in any part of the united states; and he equally hoped some remedy might be devised at this time, the beginning of a new administration, to obviate any like occurrence in future. but, said mr. s., let it not be that any thing be done partially. while we are about to bring to our view all the cases of prosecution for libel under the common law, we are not likely to know any thing about prosecutions for libel which had occurred under the sedition law, and that too under a different administration. we have not authorized any such inquiry. that abuses have occurred under both, is but too probable, and i think it will be liberal, as it is just and fair, to make the inquiry more general on the subject. if any citizen has been oppressed or injured by such prosecutions, let it be known, and let justice be done him; even now, if with propriety any way can be devised to do so. inquiry, however, is all that is asked for the present. it may be perceived, said mr. s., and if not, i wish it should be understood when i speak of justice being done, that i speak with rather peculiar reference to a gentleman of this house, who has been a principal sufferer under the well-known sedition law. i think it never too late to do justice, under whatever circumstances or motives of policy it may have been withheld for a time. i trust no gentleman will, upon this occasion, suspect me of a design to excite any party feelings. it certainly is not my wish, whatever may be the effect. the resolution i am about to offer is not so framed, nor would it necessarily involve the question of the constitutionality of the law. i feel persuaded, therefore, that the different gentlemen of the house may, from a spirit of liberality and fair concession, indulge the inquiry asked for. but, sir, said he, since the other inquiry has been gone into, it cannot be unfair to say that the majority of the house owe it to themselves to extend the inquiry, as well to cases of prosecution under the sedition law, as to those under the common law; and i shall be permitted to say also, they owe it as well to the feelings and sufferings of the gentleman to whom i have alluded. whatever may be the aspect of political opinions and parties now, it is known to you, sir, and a few others on this floor, that to him much is due for the present ascendency of the majority; perhaps to no one more, to the extent of his sphere of action and influence. in the famous contested election for president in this house, eight or nine years ago, he gave the vote of a state, which sufficed to decide the contest; and more especially so, if the blank votes of the state of maryland could have rendered that vote doubtful. but, however such considerations may or may not avail, nothing is more clear to me than that the inquiry should be indulged on the most liberal principles. _resolved_, that the committee, appointed to inquire into what prosecutions for libels at common law have been instituted before the courts of the united states, be instructed to inquire what prosecutions for libels have been instituted before the courts of the united states under the second section of the act entitled "an act in addition to an act, entitled 'an act for the punishment of certain crimes against the united states,'" passed the th day of july, , and the expediency of remunerating the sufferers under such prosecutions. mr. sawyer moved to amend the resolution by adding, at the end of it, the words "and that the committee also inquire whether any and what private compensation has been made to such suffering persons." mr. macon said he did not know how the committee could go about to make such an inquiry as that contemplated by the amendment. the gentleman must be well satisfied that the government could not rightfully inquire into transactions between individuals. mr. dana said that he had no particular objection to meet this inquiry. as to the disclosure of facts as to the reimbursement by individual contribution, it might be amusing, if this house had authority to make it. he said he should like to know who contributed to the relief of james thompson callender, when he was prosecuted; but he had some doubt whether it was proper to enter into any inquiry or whether it was proper to pass the resolution pointing to the remuneration of sufferers under the sedition law. he should have supposed that it might be proper to leave it at large for the committee to report. he said he had certainly no objection to inquire, though he conceived that prosecutions at common law and under the sedition law were essentially different; because, supposing the congress of the united states to pass such a law, the courts of the united states might take cognizance of it; but, without such a law, it did not belong to the judiciary to extend its care to the protection of the government from slander. such was the decision of judge chase, (said mr. d.,) who decided that the court had no jurisdiction at common law in suits for libel; and the supreme court of the united states never did decide the question. the strong contrast is this: that while there was a description of men who said that no prosecution could be had at common law for libel, nor under the statute which modified the common law so as to allow the truth to be given in evidence--who, while they excited indignation against this statute, should afterwards undertake to institute prosecutions at common law where there was no limitation in favor of the defendant. there is this difference in the cases: that we find practice precisely different from professions. i do not say that the heads of departments were instrumental in instituting these prosecutions; but it marks some of the subordinate men who were active in making professions. i am very willing that the proposed inquiry should be made; but i cannot see the propriety of our undertaking to give any opinion as to remunerating those who suffered. mr. stanford said:--mr. speaker, i would ask if my colleague's motion of amendment can be in order? it is no concern of this house, or of the government, what private contributions may have been made to the gentleman from kentucky; and, if it was, the inquiry is impossible. [the speaker said, not being able to enter into the views of the mover of the amendment, he considered the motion in order.] then, said mr. s., if my colleague is anxious to know what he could not otherwise know, i will tell him i had contributed a small sum to the gentleman from kentucky, as a sufferer in what was then considered a common cause; but, upon his return to his seat in the house, he could not brook the idea of such a contribution, and returned the amount to myself i know, and to others i believe. my colleague would do well to tell us how much he contributed. it was well known contributions were made in a quarter not far from him; and if he did not, i am well persuaded it was not for the want of sympathy on his part, or extreme zeal in the democratic cause; for i am confident i have seen as much or more seditious matter from under his pen, than i ever saw from under that of the gentleman from kentucky. be that, however, as it may, i am for one willing, if no constitutional difficulty can be shown, to remunerate the sufferers--at least to take such money out of the treasury, and restore it to its original, rightful owners; and if it cannot be consistently done, why the inquiry can do no harm. but, indeed, we have great examples in the case before us. did not the late president, when he came into place, refuse to let such money come into the treasury in the case of the worthless callender? as the proper authority, he thrust it from him as unworthy the coffers of his country; and did not his doing so meet general approbation? i confess it met mine most cordially, and i believe it did that of my colleague also. have we not, moreover, the best recorded proof that the present president holds similar opinions on this subject? his splendid opposition to the sedition law is the proof to which i allude, and is, in my mind, conclusive on this subject. but if it were not, where is the impropriety of an inquiry? the house will be better able to decide when the whole matter shall come fairly before them. mr. quincy said this appeared to be a proposition to aid a single individual; and, by the amendment, gentlemen who had aided that individual were anxious to prevent him from gaining more than he had paid. it was a kind of application to the house to repay to those persons who relieved the sufferers under the sedition act, the sums which they had paid. if this were the object, mr. q. suggested whether it would not be proper for them to come forward and lay their claim in the ordinary form before the house. mr. sawyer said he was, as he always had been, willing to contribute his mite to the relief of the sufferers; but he did not wish to see them remunerated from the public treasury. mr. lyon.--i have for some time been in suspense whether i ought, or ought not to make any observations on the subject before the house; delicacy on the one hand bids me be silent, while a duty i owe to myself, to my family, and to the nation, requires (that since my particular case has been alluded to) the members of this house and the public should be made acquainted with many of the circumstances of that case, which have either never come to their knowledge, or have long been buried up among the consumed heap of political occurrences, disputations and publications of these days. besides, sir, i have it in my power to throw much light on the subject of the inquiry wished for, by the gentleman from north carolina, (mr. sawyer,) who has proposed the amendment under consideration, and i will assure the gentleman that i shall not be backward in doing so. it is true, sir, that i was unjustly condemned to pay a fine of one thousand dollars and to suffer an ignominious imprisonment of four months in a loathsome dungeon--the common receptacle of felons, runaway negroes, or the vilest malefactors--and this when i was the representative of the people of vermont in this house of congress. it cannot be said there was no other room in the prison, there were rooms enough; yes, sir, one of my judges during my imprisonment, found another room in the same jail to be imprisoned for debt in, until he gave bonds for the liberty of the yard. to heighten the picture exhibited by official tyranny, and to add to the cruel vexation of this transaction, i was carried out of the county in which i lived, fifty miles from my family, kept six weeks without fire in the months of october and november, nearly the whole of which time the northwest wind had free admittance into the dungeon, through the same aperture that admitted the light of heaven into that dreary cell. and let it be asked, in these days of the mild reign of republicanism, for what crime was all this extraordinary, this ignominious punishment inflicted? i hold a copy of the indictment in my hand, which includes the charge against me. i will not trouble the house with a recital of the technical jargon and tedious repetition of words, of course, which constitute the bulk of such instruments. no, sir, but i will read the identical words of the charge, which says, that on the th of june, , matthew lyon wrote a letter to alden spooner of windsor, vermont, in which he said, "as to the executive, when i shall see the efforts of that power bent on the promotion of the comfort, the happiness, and accommodation of the people, that executive shall have my zealous and uniform support. but whenever i shall, on the part of the executive, see every consideration of the public welfare swallowed up in a continual grasp for power, in an unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice--when i shall behold men of real merit daily turned out of office for no other cause but independence of sentiment--when i shall see men of firmness, merit, years, abilities, and experience, discarded in their application for offices for fear they possess that independence; and men of meanness preferred for the ease with which they take up and advocate opinions the consequence of which they know but little of--when i shall see the sacred name of religion employed as a state engine to make mankind hate and persecute one another, i shall not be their humble advocate." this is the whole of my crime, and what do those words amount to. who is here that hears these words, but what approves the sentiment they contain? what do i say in these words, other, or more, or less, than that when the executive is doing right, i will support him--when doing wrong i will not be his humble advocate? this ought to be the creed of every member who enters these walls. was there to be an oath or abjuration added to the constitutional oath to be taken by the members of this house, can any person who hears me, devise a better, or one more proper? could any person who really thought mr. adams quite clear from all those improprieties, as merely possible from the nature of man, mentioned in my letter, have thought of my libelling the president by this declaration? i presume not, sir. yet this, my crime, received one of the condemnations which you are called upon by this motion to constitute an inquiry into--an inquiry i cannot persuade myself will be refused. the letter, sir, was an answer to a violent invective against me, published in the same paper a short time before, in which besides a number of other charges against me, it was imputed to me as a crime that i acted in opposition to the executive. i did not begin the altercation. a person who was a friend to the adams administration, in the act of libelling me, (one of the constituted authorities,) ushered the executive into his performance. my character, ever dearer to me than life, was concerned. i deigned to answer him, after expostulating with him on my right as one of the constituted authorities of the nation to exercise my own judgment in my official conduct, and showing that my merely differing with the executive proved no more than that the executive differed with me. i incidentally proceeded in the words for which i was indicted, the very words i just now read. i was charged with neither more nor less as coming from my pen. as if to outrage every principle of law and every sentiment of decency and propriety, this indictment, founded on the sedition law passed on the th day of july, , charges me with having in philadelphia on the th of june prior, written a letter to alden spooner of vermont, which contained those words i have been reciting. my letter was produced in court and carried the philadelphia post-mark of some day in the same june, i do not recollect which day; judge patterson himself admitted this fact, and that it was out of my power and control in the june before the sedition law was passed. thus the indictment, which was the foundation of the barbarous treatment i received, carried on its front its own condemnation; but this defect was remedied by the ingenuity of the party judge, who dexterously mingled his assertions that the crime was cognizable under the common law, with his admonitions to a pliant jury not to be deterred from finding a verdict where the man who wrote was a member of congress, and knew the sedition law was about to be passed, and probably hurried his letter to evade the law. it may be said, sir, that i was charged in the indictment with publishing a copy of a letter, from an american diplomatic character in france, to a member of congress, commonly called the barlow letter. i was so, and there was a third count in the indictment for aiding and abetting in the publication of said letter. the words selected as seditious were as follow: "the misunderstanding between the two governments has become extremely alarming: confidence is completely destroyed; mistrust, jealousy, and a wrong attribution of motives, are so apparent as to require the utmost caution in every word and action that are to come from your executive; i mean if your object is to avoid hostilities. had this truth been understood with you before the recall of monroe, before the coming and the second coming of pinkney, had it guided the pens that wrote the bullying speech of your president, and the stupid answer of your senate, in november last, i should probably have had no occasion to address you this letter; but when we found him borrowing the language of edmund burke, and telling the world that although he should succeed in treating with the french, there was no dependence to be placed on their engagements; that their religion or morality was at an end, and they had turned pirates and plunderers; and it would be necessary to be perpetually armed against them, though you were at peace, we wondered that the answer of both houses had not been an order to send him to a madhouse! instead of this, the senate have echoed his speech with more servility than ever george the third experienced from either house of parliament." no proof appeared on the trial of my printing, or aiding or abetting in printing, or circulating a printed copy of this famous letter. i had read the copy of the letter in company, but the advocates of the sedition law would never admit that such reading was punishable by that law. the printer who printed the letter, swore that he had been anxious to get the letter from me, and that i had refused to suffer it to be printed, and repelled every attempt to persuade me to the printing; that he had obtained the copy of the letter in my absence. the fact was, that my wife was persuaded by a gentleman who is now a member of this house, that the republican cause and my election (which was pending) would be injured if the letter was not published; and, as i understood, she gave it to him, the letter was printed, and that gentleman had some of the copies before i came home. i suppressed the remainder of the edition. the judge, finding no proof to support this part of the charge, directed the jury to find a verdict of guilty generally, as there could be no doubt of my being guilty on the first count. i had acknowledged my having written the letter to alden spooner. they did so. i will not detain the house by going into a detail of the manner in which that jury was packed. after all the care and management in the original selection, there was one man on it whose honesty my persecutors feared; and, to get him off, a wretch falsely swore that the summoned juryman had expressed to him something like an opinion that i could not be found guilty. i will not here dwell upon the judge's denial to me of a challenge upon the jury--as great a crime as any judge chase was charged with. i look for an investigation of this business when all the features of it shall come fairly to public view. should that investigation be refused at this time, i shall not fail to look for it at some future time. i can never forgive the unjust stigma that has been placed on my character; and should justice be refused me during my whole life, i will leave it with my children and theirs to seek it. when my enemies wounded my feelings, robbed me of my property, and affected temporarily my reputation, i consoled myself that my friends would soon be in power, and they would make every thing right. my wounded honor would be consoled; the wound would be healed--a share at least of the property of which i had been deprived, would be reimbursed. how cruelly have i been thus far disappointed! generous men, at the time i suffered, said it is enough for you to bear the mortification of the temporary insult--we will share with you the loss of property. under this impression much money was collected, the greater part of which went to relieve oppressed republican printers--it has all been charged to me. i never asked, nor would i have received a cent of this gratuity, could i have avoided it without insulting the benevolent views of the good man (gen. stevens thompson mason, deceased) who set the subscription on foot. that good man gave me a list of those to whom he considered me beholden, and the amount; while the thing was fresh in every one's mind i made a compliment, which he considered ample, and more than ample, to every one of those on that list that was within my reach; to those few that remain on that list uncompensated, i feel beholden and much indebted. as the thing has grown old, and as i have come in contact with those gentlemen, i have felt myself in an embarrassed, awkward situation, from which i wished to be relieved by being able to say to them, the public have restored your money--here it is--it is yours, not mine. judging other men to have feelings like myself, i am at a loss how to get rid of the obligation i feel, in any other way than the restoration of their money when it comes in a way they cannot refuse it. from this source my anxiety for the restoration of the money unjustly taken from me, arises more than any other; and on every review of the subject, i am bound to say that i have been more cruelly treated by the neglect of a duty to which my friends had pledged themselves, when they declared me innocent and patriotic, than by enemies who thought me guilty, and found me goading them in their progress toward the destruction of the liberty and republicanism of this country. as if to make their cruelty more insupportable, insult is added to the injury, by daily insinuations that i am bound by gratitude to stand by those who call themselves republicans, in all their projects, right or wrong. before i was elected a member of congress from the state of kentucky, i sent to a member of this house, who had promised me to bring it forward, a petition to be laid before the house of representatives for redress in this case. he returned the petition to my son in a letter, which i have in my hand--in which he says, "i am sorry and ashamed that i have not presented the petition. i have not wrote to your father, and confess i am ashamed; pray you, the first time you write to colonel lyon, do endeavor to make an excuse for me." such i believe was the impression of most of those i had acted with in the reign of terror, as we called it; but that impression has been wearing off, it seems, while my feelings have been every day increasing in their poignancy at their neglect of a duty, to which they had solemnly pledged themselves, while they were struggling with their adversaries for pre-eminence and power. happily the awful silence which surrounded this extraordinary business has been broken. i consider this a prelude to investigation and a correct issue; and, let the event of the vote now about to be taken be what it may, i shall not despair. i shall at this time say no more on this subject than to declare i wish not to have my case singled out for reparation. i wish the investigation general; the provision for remuneration general, to all who suffered under the lash of that unconstitutional sedition law. mr. sawyer's amendment was negatived without a division. mr. ross rose to propose another amendment to the resolution. it was a fact, he said, well known in almost every part of the united states, that the people in the district from which he had just been returned, had suffered as much in the cause of democracy as that of any other; that they had presented as firm a barrier to federal oppression, and perhaps had as just claims as any other people in the united states to remuneration for losses in the cause. it was well known that at the time that high-handed measures were taken in this country, an insurrection had taken place in pennsylvania, commonly known by the name of the hot-water insurrection; that it occurred in consequence of the oppression of the law for the collection of a direct tax. many persons who had opposed the law, under the idea of its being unconstitutional, were prosecuted, punished, and some of them, in consequence of those prosecutions and the sentence resulting from them, expired in prison. to some who remained after the aspect of the affairs of the country was changed, mercy was extended by the united states; but to those whose prosecutions and convictions were of an earlier date, lenity was not extended; they were compelled to pay their fines before they could be relieved from imprisonment. mr. r. declared his object in rising to be, to move to amend the resolution in such a way as to instruct the committee to inquire whether any, and if any, what compensation and remuneration should be made to the persons who suffered and were punished in consequence of an act to lay and collect a direct tax in the united states. mr. dana said the gentleman's amendment contemplated remunerating those who suffered by their opposition to a statute. he would propose an amendment to inquire into the propriety of remunerating those who had suffered by their submission (not by their opposition) to the several acts respecting the embargo, certainly so much more meritorious conduct than that of opposition. as respected the whole of this subject, he said he was very free to declare that as regarded those who had been prosecuted at common law in the state of connecticut, who had certainly been at very considerable expense, their defence perhaps having cost them several thousand dollars, yet, on the principle of correct legislation, he had not the least idea of remunerating them. where shall we stop, said mr. d., if we tread back on the steps of each other? we shall have opportunity enough for censure in reviewing our conduct. perhaps it might be as well to draw the veil of oblivion over past transactions, and learn from experience to err no more. mr. johnson said, that however much the act laying a direct tax was disapproved, and arose from measures which were improper, yet he had never deemed it an unconstitutional law, as he had the sedition law. he should therefore vote against the amendment and for the resolution. mr. gardenier suggested to the gentleman from pennsylvania, since he had brought the subject before the house, the propriety of going the whole length of his principle. to my mind it is very clear, said he, that if those who oppose the law are to be remunerated, for what it cost them in consequence of prosecution, you must go only on the principle that the direct tax never ought to have been laid at all. if the law was right, it was improper to oppose it. if it was improper, perhaps according to modern democracy, it might be proper to oppose it by force. that, to my mind, is a very dangerous doctrine for legislators to broach; it is a doctrine to which i myself can never agree, for it is making government a nullity. the suggestion which i wish to make is this: that if those men who suffered in the hot-water insurrection are to be remunerated, it is no more than fair that those should be remunerated who have quietly paid this tax. they were at least respectful to the laws. the committee therefore ought to be instructed to inquire into the propriety of repaying to the several contributors in the various states the direct tax, collected from them, unless there be something so admirable, so lovely, so worthy of encouragement in insurrection, that those concerned in it have peculiar claims to encouragement by government. if that be the case, the gentleman stopped at the proper point. if there was nothing in insurrection, however, which the legislature would feel it proper to cherish, the gentleman should either go the whole length of his principle or not touch it at all. mr. ross said he had not undertaken to state any principle at all. his object was to refer the subject to a committee to decide upon. he had not said that he considered the original resolution to contain a correct principle; it was a point left for the committee to consider and for the house to determine on. but if it was a correct principle that those who suffered under the sedition law should be remunerated, he said he had no hesitation in saying that his constituents, who had suffered as materially and as much as any for the democratic interest in this country, should be placed on the same ground as those who were asking for the favor of the house for no better reason; and when the gentleman calls upon me, said mr. r., to go the whole length of a principle which he states, it is calling upon me to do that which is consequent on a principle which i have not assumed. the gentleman from kentucky conceives that there is a difference between the cases alluded to in my amendment and the cases arising under the sedition law. where is the difference, sir? in both cases they were laws of the united states: in both cases the judges of the courts of the united states were authorized to proceed. in neither of the cases did they decide the law unconstitutional. if, then, persons were punished by the sedition law in its full operation, carried into effect by the constituted authorities, where, i ask, is the distinction between that and any other law? to all the purposes of legality, that law is as much legal as that under which the direct tax was instituted. whether the law under which a direct tax was collected, was constitutional or not, has it not as equally received the disapprobation of the republicans of the united states as the sedition law? if then it was the object of the democratic party to rid the country of such a law as much as of the sedition law, i ask whether those who suffered under each law have not equal claims? there can be no legal claim upon the house under either law; but we know that it was the hardy yeomanry who presented a firm phalanx to the irresistible torrent of injurious laws of the federal administration, and who gave the present party the ascendency, and many of them have not, as the gentleman from kentucky has been, compensated for their suffering by a long continuance in an honorable and lucrative office which he enjoys by the confidence of his constituents. mr. potter declared himself at a loss to know whether the house was sitting here as a branch of the legislature to pass laws, or as a body to remunerate those concerned in the violation of them. the house sit here to make laws and not to encourage those who resisted them; but if they determined to give premiums for the violations of laws, they had better depart home at once. mr. rhea wished the house to get rid of this motion and the amendment as speedily as possible. if the house were to go on as it had commenced the session, the whole time of the house would be spent about nothing, discussing propositions which could not possibly produce good to the nation. he therefore moved to postpone the whole subject indefinitely. mr. macon said he had been in hopes when this motion had been made, that it would be one of the happy days of the house; that the question proposed would occupy the whole day in debate, and that all would agree in it at last. as to comparing this case with that of the direct tax, it was notorious that the discussion on the sedition law and the public opinion also took a very different turn from that which it took on any other law. the whole discussion (said mr. m.) as well as i recollect, turned upon the constitutionality of the law. then, if it is still believed that the law was unconstitutional, i leave it to gentlemen to say whether it can be viewed in the same light as a law, the constitutionality of which is not disputed. in the one case, trials took place for speaking and writing; in the other case for opposing the execution of a law. i wish this question to be settled for this reason: in all governments where liberty and freedom have existed, parties also have had existence. thinking honestly produces parties. that those gentlemen who were in power when the sedition law was passed, should step a little too far, was not so much to be wondered at as that those who came after them should do so; because they were making the first experiment of the instrument. i then believed, and do still believe, that the law was unconstitutional. taking up this question, the original resolution of my colleague is that remuneration should be made to those people who suffered under it; but seeing that the question with respect to the constitutionality of the law had always been matter of dispute, it proposes that a committee shall inquire into the subject. the house is no farther committed by passing this resolution, than to consent to the inquiry being made. i submit it to the candor and reflection of gentlemen of all parties, whether this thing, in a national point of view, can produce any evil--on the contrary, may it not produce good? all that has been said about the direct tax laws can have no other effect than to draw off the attention of the house from the true question before them. the question on this law, in my mind, is a different one from any other law which has been passed. i feel no hesitation in acknowledging that it is my opinion that all the sufferers ought to be remunerated, both those who suffered under the sedition law, and those who suffered under the common law. it is the business of all parties to settle amicably as they can any subject of contention between persons of different political persuasions. if this first resolution should be referred to a committee, and they report that the law was unconstitutional, i will venture to pronounce that no majority will ever again make a law of that kind. if, sir, the sufferers under the sedition law did suffer contrary to the constitution, ought not their expenses to be reimbursed? on the subject of contribution, i know that that party to which i was attached, did contribute, and did consider it an honorable cause. i was willing (and there are gentlemen in this house who know it) to open my purse when a man of a very different political creed from myself, peter porcupine, was oppressed. i care not of what party a man be, that is oppressed. i can prove that the party opposed to me in politics have also subscribed. it is all no more than the subscriptions for printing speeches which are occasionally made in the house, in which gentlemen of all parties unite. suppose that the whole fine in any particular case had been paid by individual subscription, what has the government to do with that? will it be contended, because an old soldier who received a pension also received individual contributions, that the pension should be taken from him, or that the government is thereby acquitted of what it owed him? surely not; the government has nothing to do with transactions between individuals. as to the particular gentleman brought into this discussion, i believe that every man that contributed any thing towards paying the fine levied on him, was remunerated to his satisfaction. i have thought proper to state these opinions of mine, and to avow myself in favor of reimbursing the sufferers. but before i sit down, i must say that my opinion of modern democracy is very different from that of the gentleman from new york. i consider it as neither leading to insurrection, rebellion, nor any such thing. i believe that the true principle of every modern democrat, is, that the law constitutionally made is supreme, and is to be obeyed; that it has nothing to do with riots, rebellion, and insurrection. i know very well, and shall not deny it, that there are times when insurrection is a holy thing, but it is not peculiarly attributable to democracy. with us, election puts every thing to rights; and on them every man of pure democratic principles depends. it is doubtful whether the question of the constitutionality of the sedition law can be settled in a more easy way, and in a mode less liable to irritation, than that proposed by my colleague. if the committee report as i wish, it is well; if not, it settles the question forever; and it is surely desirable that the question should be settled. however gentlemen may differ, as to the principle proposed to be investigated, they might with propriety vote for the inquiry, as it is the ordinary course of every day. i do not consider this as proposing to give a premium to violators of the laws. i know that much depends in this world on names; and that if you give any man or thing a bad name, whether merited or not, it is difficult to get rid of it. i hope the house will not be deterred from this inquiry by any name attempted to be given to it. it is proper that this question should be settled; and if considered now, it will be settled by a body which did not partake of the heats of those times, and when, to say the least of it, there is a little division in the great parties of the nation; and it seems to me that the gentleman who moved it has been fortunate in the selection of his time. eight years have elapsed, a new president is just inducted, and the question is now brought up for our decision. i am sorry that any member of this house should make a motion with no other view but for procrastination. i do not believe that my colleague who made this motion is more in the habit of procrastinating the public business than other members of the house; and i was in hopes that there would have been no dissentient voice to his motion. he only asks of you to let the inquiry be made. he does not ask a single member of the house to commit himself upon the question, but merely asks that a committee may be permitted to inquire into it; and this, it seems to me, is no extraordinary request. i hope that the resolution, without being trammelled with any extraneous matter, will be passed. mr. key said he should vote for indefinite postponement of the resolution. what good purpose could its adoption answer, unless the house had the power to take money from the treasury of the united states for the purpose of remunerating any person who had suffered? had congress that power? he apprehended not. he could see no such power amongst those delegated to congress. the gentleman from north carolina admitted the house were under no obligation to remunerate the sufferers; and if the gentleman would turn to the rules laid down for the definition of the powers of congress, he would see that there was no authority to draw money from the treasury for this purpose. under that view of the constitution, mr. k. said he must vote for indefinite postponement. mr. macon asked under what clause of the constitution captain murray and others had been remunerated? under what clause money paid into the treasury had been returned in various instances? the right to take, gave the right to return that which was taken. in many instances this principle had been practised on. there was no law to authorize the punishment of a man for robbing the mail; but it was derived from the power of establishing post roads. the power of refunding money was one which had been often exercised. mr. gardenier was in favor of an inquiry. it was not only proper that an inquiry should be made, but it was the bounden duty of the house to make it. a member of the house in his place had stated facts which if true undoubtedly entitled him to their interference. our duty (said mr. g.) is imperative. the case of the gentleman does not rest upon the question whether the sedition law was constitutional or unconstitutional, but upon the fact that he was not a proper object for the exercise of that law. for, if the statement made be correct, he was punished for uttering a creed which would not be improper for every member of the house; and i will say that subsequent events have shown the sincerity with which the gentleman did make it; that he had kept his promise most religiously; that it was not applicable to those men, or that time, any more than to the present, but was a creed on which he practised before and ever since, so far as his political course is known to me. it is a case in which the privileges of the members of this house are materially concerned. if under the sedition law for a letter written by a member of this house to his constituents, giving his view of public measures, he has been punished, it concerns the safety of this house that complete and perfect remuneration should be made. it is as important that every member should be permitted to speak freely to his constituents, as that he should without restraint address the chair of the house. it was a case, therefore, which never ought to have been the subject of a judicial investigation, much less considered as a crime. the gentleman at the time followed the dictates of his conscience. to his conscience and his god alone should he be responsible. sir, should we refuse an inquiry into this case, when we know that the fine of james thompson callender, for one of the most atrocious libels ever written in the united states, was remitted? when we know that it was remitted by the president of the united states, after the money had been received by the proper receiving officer of the united states, when it had passed out of the hands of james thompson callender into the hands of the officer of government, and was, to all intents and purposes, in the treasury of the united states, because there is no such thing as a treasury in which money is actually deposited--for a libel, too, in which the great father of his country was treated with a shameless indignity, which could not but have gone to the heart of every man? when the president of the united states was in that libel called a hoary-headed incendiary, should that fine be returned, and shall a gentleman in this house be fined and imprisoned for that which was not even improper? shall we not restore to him that which others have been suffered to retain, and for which we have not brought to question him who restored it after it was in possession of the receiving officer of the united states--in fact, after it was in the treasury? let us not be guilty of this inconsistency. if the sedition law has gone to the tomb of the capulets, and i believe it has, i am not one who wishes to bear up against the people's voice; the government is theirs, and when they speak we obey. if under that law the government has received money for an act which really, if the statement of the gentleman be true, could scarcely be considered an offence within the purview of that law, will you not give it back to him? either give back the money in the case, or take measures to recover that money which was given back in the other. i am not for making fish of one and flesh of another. whilst on this subject i will declare that i never did consider the sedition law as unconstitutional. congress were competent to pass it. but, that parties will sometimes in the ardor of their course exceed the limits of discretion, and do violence to the milder feeling of the community in which they live, has been proved in the adams administration, and in that which has lately disappeared; and when they have cooled down, it is but rendering justice to the sense of the country to acknowledge their errors. no, sir, i am satisfied that all prosecutions for libels on the government should be at least very hesitatingly sustained. you cannot draw a precise line by which you shall limit the right of investigation. the two things are so blended together that you cannot separate them. you must either make the government supreme or the people supreme. i am for the latter. as dr. johnson makes lord chesterfield say, liberty and licentiousness are blended like the colors in the rainbow; it is impossible to tell where one ends and the other begins. licentiousness is a speck on the eye of the political body, which you can never touch without injuring the eye itself. i hope and trust that with this investigation will be connected an inquiry into the prosecutions at common law in connecticut. i have seen in the state of new york, but not under the present administration, a defendant coming into court, begging only to be permitted to prove that what he had said was true; i have seen also an attorney-general rise to prevent it: i have seen the truth smothered on the trial by men who were as clamorous against the sedition law as any loud-mouthed patriot in the country. i have seen them bringing almost to the block the victim who may only wish to prove the truth of what he said--which was denied him. i mention this to show that where parties are contending against each other, where there is a majority on one hand and a minority on the other, that which appears on paper proper for the protection of the government, turns out to be for the oppression of the minority. in the nature of parties it cannot be otherwise. therefore, in my opinion, the government of the united states cannot render a greater service than by declaring it will not be accessary to any diminution of the rights of the citizen; that free investigation shall in all cases be permitted. mr. g. made some further observations on the particular case of mr. lyon, and concluded by expressing his hope that the resolution would pass. the question that the resolution be postponed indefinitely, was decided by yeas and nays--yeas , nays . monday, may . several other members, to wit: from massachusetts, orchard cook; and from pennsylvania, benjamin say and john smilie, appeared, produced their credentials, were qualified, and took their seats. wednesday, may . julian poydras appeared, produced his credentials, was qualified, and took his seat, as the delegate for the territory of orleans. mr. mckim presented a petition of thirty-five american citizens confined at carthagena, in south america, under sentence of slavery, stating that, through means of falsehood and deception, they were induced to engage in the unlawful expedition of miranda, fitted out from the city of new york, in the year one thousand eight hundred and six, and that they were captured by the spaniards, and condemned to slavery, and praying that congress will take their distressing case into consideration, and effect their release and return to their native country.--referred to mr. mckim, mr. say, mr. emott, mr. roane, and mr. cochran, to examine the matter thereof, and report the same, with their opinion thereupon, to the house. monday, june . two other members, to wit: ezekiel whitman, from massachusetts, and richard wynn, from south carolina, appeared, produced their credentials, were qualified, and took their seats in the house. a message from the senate informed the house that the senate, having been informed of the death of the honorable francis malbone, one of the senators from the state of rhode island, have directed the same to be communicated to this house. on motion of mr. potter, _resolved, unanimously_, that this house will attend the funeral of francis malbone, esquire, late a member of the senate of the united states. _resolved, unanimously_, that this house do wear mourning on the left arm for the space of one month, in testimony of their respect for the memory of the deceased. tuesday, june . another member, to wit, wilson c. nicholas, from virginia, appeared, produced his credentials, was qualified, and took his seat in the house. wednesday, june . another member, to wit, erastus root, from new york, appeared, produced his credentials, was qualified, and took his seat in the house. friday, june . another member, to wit, nicholas van dyke, from delaware, appeared, produced his credentials, was qualified, and took his seat in the house. monday, june . _mississippi territory._ the speaker presented a petition enclosed to him from a number of inhabitants of the district east of pearl river, in the mississippi territory, praying for the division of the territory. mr. poindexter moved that the petition lie on the table. it would perhaps be disrespectful to the petitioners to reject it, although its contents would merit that course. there were three parties who must, by the ordinance for the government of the territory, consent before the territory of the mississippi could be divided. one party was the mississippi territory, the other the state of georgia, and the third the united states. neither of these parties had consented. there was, therefore, an absolute interdiction to all legislation on the subject; and the house could, with as much propriety, refer a petition from a state to be exempt from general taxation, or to recede from the union, as to refer this petition. mr. burwell said he felt himself bound to oppose the motion for its lying on the table. if the request was wholly improper, the report of a committee to that effect would settle the question at once. mr. bibb was in favor of the motion; though, had a motion been made to reject it, he should have voted against it. mr. macon was in favor of a reference of the petition. no harm could arise from an inquiry into it. mr. troup admitted the correctness of the remarks of the delegate from the territory, but wished the petition to be referred to a committee for the purpose of an inquiry as well into the amount of population in that country as into its quality; whether it was lawful or unlawful. there were certain facts connected with this subject, perhaps not generally known to the house. in the course of last year, he had understood that a great many persons, amounting to perhaps three or four thousand, had crossed the tennessee river, and fixed themselves on its banks, not only contrary to law, but the impression was that they had set out in defiance of the law, and had even gone so far as to organize themselves into military associations for the purpose. mr. poindexter observed that there had been a settlement contrary to the existing law on tennessee near about a year ago; but that they were ordered to be driven off by the military force, except they would take permission to reside as tenants at will. some had done so, and some had been driven off. mr. troup said he knew that orders had been given to remove them, but of their removal and dispersion he had not heard. he said he had further understood that there were, in the county of madison alone, two or three thousand intruders, and many of them settled on indian lands, whose owners they excited to hostilities. there was another fact, of which the house might keep possession. among these intruders was one of the name of harrison, he believed, who claimed under what was called the tennessee yazoo claims, and who settled on the land with his retainers, and deliberately began to apportion it among them. whether he had been dispossessed, mr. t. said he did not know. it was absolutely necessary to ascertain the situation of that country, and therefore he should vote for the reference of the petition to a committee. the petition was ordered to lie on the table-- to . tuesday, june . _miranda's exhibition._ the house went into committee of the whole on the following resolution, reported by the committee appointed to consider the petition of thirty-six citizens concerned in miranda's expedition, and now confined in the vaults of carthagena, south america: "_resolved_, that the president of the united states be requested to adopt the most immediate and efficacious means in his power to obtain the liberation of the prisoners, if it shall appear to his satisfaction that they were involuntarily drawn into the unlawful enterprise in which they were engaged; and that ---- dollars be appropriated for that purpose." mr. mckim observed, that he believed nothing further would be necessary for the attainment of this object than an application by the government of the united states; he then moved to fill the blank in the resolution with such a sum ($ , ) as would defray the expense of sending a vessel there and clothing the prisoners previous to their return. mr. randolph said he believed there would be no better time than on this motion to express the disapprobation which he felt of the report; for he was unwilling in his representative capacity, to give one cent of the public money for bringing back into the bosom of the body politic these unfortunate but guilty men. he knew how invidious a task it was to appear to lean to the side of inhumanity; he knew how very natural it was for the mind of man to relent after the commission of a crime, and to see nothing in a culprit but his misfortunes, forgetting his guilt; but there were occasions, and he took this to be one, where to lean apparently to the side of humanity is an act of as great injustice and cruelty to society as the legislature can commit. what were the house about to do? to make an appropriation of money for an extraordinary purpose of foreign intercourse. was not the president of the united states already invested with power to negotiate with the spanish government on this, as well as with any other government on any subject? was the president of the united states presumed to have turned a deaf ear to the cries of our suffering countrymen in captivity in a foreign nation? mr. r. said this was not like a question of redeeming our countrymen from slavery in barbary or tripoli; but it was a question whether this government would lend its countenance to that class of men who were concerned in the expeditions of miranda and aaron burr. he for one said, that he would not consent to it; and that those persons who, above the dull pursuits of civil life, had enlisted under these leaders, might take for him, however he might feel for their situation as men, the lot which they themselves had selected. he said he considered them as voluntarily expatriated from this country, and among the articles of commerce and manufacture, which it might be contemplated to encourage by bounty and premiums, he confessed for one, that the importation of such citizens as these was not an article of traffic which would meet with any encouragement from him. so far from being afraid of any ill consequences resulting from the sparseness of our population, he was afraid that our population, (and experience has tested the fact,) sparse as it was in number, in quality was redundant. we have been told, said mr. r., and i believe it, that but the other day the foreign office in great britain cast its eyes on colonel burr, and that they either did commit him--i understand that he was committed and stood so for some time, and was only released on condition of quitting the country--that they either did commit or threaten to imprison that unfortunate man. i want to know, sir, if he had stood so committed, in what respect his case, in a political point of view, would have stood contradistinguished from that of these petitioners? i can see no difference but such as, in my mind, would have operated to his advantage. there is an equality of guilt, but on his part a superiority of intellectual character which would have rendered him, if there is to be an accession to the state by bringing back to its bosom those who have voluntarily thrown themselves out of the protection of the country, a more valuable acquisition, or rather a less valuable loss, than these unfortunate men. it appears to me, sir, that in passing this resolution we shall hold up a premium to vice; for, if this proposition be agreed to, when some new miranda or burr comes forward with his project, he will tell his conspirators that they will have nothing more to do, should the matter turn out adversely, than to put up a face and tell congress that they were involuntarily drawn into it. an extraordinary mode, to be sure, of volunteering to go against their will. these _involuntary_ volunteers will be told they will have nothing to do but throw the whole weight of the blame on the original mover of the expedition, and congress will tax their fellow-creatures--who, poor souls, had not enlarged and liberal minds, and were content with the dull pursuits of civil life--for redeeming them, clothing them, and bringing them back again to society. i wish the committee to take the thing into consideration. as men and christians our conduct is to be governed by one rule; as representatives of the people other considerations are proper. there is, in the proposed interference, no justice; there may be much mercy, but it is a mercy which carries cruelty, if not deliberate, the most pernicious of all possible species of cruelty, along with it. suppose these men had been arrested and tried in this country, what would have been their lot? it is difficult for me to say. i am no lawyer; but i suppose, under the mild institutions in some of our states, they would have been condemned to hard labor for life. in what do they differ, to their advantage from other felons? in nothing. who would step forward to rescue them from that punishment due to their crime if convicted by our own courts? nobody. everybody would have said that they deserved it. now, on the contrary, having escaped the hand of justice in this country, and fallen into the grasp of the strong hand of power in another country, we are not contented to let them reap what they have sown; we are not contented to leave them in the hands of justice. i believe that there exists a proper disposition in the executive to interfere, where american citizens are wrongfully treated abroad. and, shall we come forward and open the public purse, and assume on ourselves the responsibility of that act which the president refuses to do, and thus share among us the imputation, such as it may be, which society chooses to cast upon us in consequence of it, instead of letting it fall singly and individually upon him, in case he chooses to incur it? no, sir. i have no disposition to pass this resolution to take the responsibility upon myself. in short, i should have been glad, if instead of telling us that these men are unfortunate and miserable, (for who are so unfortunate and miserable as the truly guilty?) that the members of that committee, or the respectable chairman himself, had come forward and shown the claim of these petitioners to the peculiar patronage of the country. so far from any disposition to bring them back, i would allow a drawback or bounty on the exportation of every man of similar principles. mr. emott said, that as he had been a member of the committee whose report was now under consideration, he felt the propriety of making a few observations to show the expediency of adopting the resolution. in order to obtain the release of these miserable and deluded men, it was necessary that the government should interfere, because the spanish government never would release them till such application was made. the only money necessary to be paid was not to the spanish government, but to defray the expense of bringing back the prisoners. it was not to buy their liberty, but to employ a person to go there to request it. it had been said that the president had power to attempt the release of these persons without any resolution of the house. mr. e. said he would not enter into that consideration. he knew, if the president had the power, that he had not chosen to exercise it; and if the house could find from the statement of the situation of these men that they ought to be relieved, they should not refrain from expressing their opinion, merely because the president had the power and would not exercise it. it might be necessary, mr. e. said, to call to the minds of the committee the situation of these men. they were persons employed by miranda, in his expedition, who, he undertook to say, did not know that they were going on any expedition contrary to the laws of the country. when taken, they had been tried by the spaniards on a charge of piracy, and condemned to lie in a dungeon for a term of years. they prayed the congress for its interposition in their behalf. it had been said that these men knowingly engaged in this expedition. mr. e. said he believed that they did not; but, admitting, for a moment, that this was the case; that they did know the pursuit on which they were entering, they should not, for that reason alone, be suffered to lie in prison. let it be understood, said mr. e., that this expedition, whatever it was, was carried on, in the face of day, in the city of new york, and that equipments of the vessels and enlistments were made without interruption in the face of day. and would these persons believe that they were going on an unlawful expedition? they might have enlisted from the best motives; and, supposing that they had enlisted under the knowledge that they were going on an expedition, yet seeing that it was carried on in open day without interruption from the government, he much doubted whether these poor men ought to be suffered to lie in prison. but, putting motives aside, these men declare that they did not understand the nature of the service for which they were engaged; and this statement the committee who made the report had brought themselves to believe. let it be recollected that these unfortunate individuals were lying in prison; and, although they had, by some means, forwarded a petition here, they could not attend in person to urge their claim to relief by proofs presented to the house. the persons who procured these men to go on this expedition certainly would not be very willing to come forward and give testimony; because, by so doing, they might criminate themselves and render themselves liable to the operation of the laws of their country. considering that these persons were removed thousands of miles from us, that they were unfriended, and that the persons who alone could prove that their intent was innocent, would not come forward for fear of criminating themselves, he thought these men were entitled to commiseration, and he believed that it was in his power to show two or three circumstances which would convince the house that they had no knowledge of the nature of this expedition. the first circumstance was the extreme improbability that these men would have engaged in this expedition, if the nature of it had been explained. had mr. smith or general miranda gone to these men and said, "we are going on an expedition against the laws of the country, and, if taken, you will be punished under the laws of one country or the other," it is extremely improbable that they would have engaged. it is not likely that miranda or mr. smith avowed their purposes, and told them that they were going on an expedition hostile in its nature, and against the laws of the country, because its object was to revolutionize a nation in amity with the united states. it is impossible that these men should have known the nature of the expedition, when it was not known to the government here, however public. this circumstance, to me, is conclusive, to show that these young men did not know it. there might have been persons who did; if you please, mr. ogden, who furnished the ship, or others, but it is impossible to believe, that these men, who were mere soldiers for carrying on the expedition, knew the nature of it. i am convinced that these persons, all privates--for the officers were executed--did not know why they did enlist, or that the corps was for the purpose to which it was actually designed. i have said, and perhaps every person here knows, that the whole of the business was carried on in the face of day. here were general miranda and mr. smith coming to the seat of government, and back to new york, procuring clothes, enlisting men. can it be conceived that all this could have been carried on, if general miranda had not meant to conceal it from the government? but it is in my power to furnish something more than mere conjecture on this subject. the committee will recollect that a greater part of this transaction took place at new york. there the men were to rendezvous, there the vessel was furnished, and to that state most of the young men who are now in south america did belong. in that state this matter was the subject of judicial investigation. mr. smith and mr. ogden were indicted. i will read a part of the evidence given on the trial, which will satisfy any one, at least it has satisfied me, that these men had no hand in it. mr. fink, who was produced as evidence on the part of the government to convict mr. smith, was the person who was intrusted with enlistments. on the same trial there was one of the persons who has actually enlisted who deposed that the same information which peter rose received was given to others. this man also was a private in the expedition, and swears that the person who employed him told him that he was to be employed in the service of the government; that he was to be carried to washington by water and thence to new orleans. the men who now petition congress are persons who are placed precisely in the same situation. we find, in the course of the trial, that the person employed to enlist the men, declares that the person employing him refused to tell him for what purpose they were to be enlisted, and, of course, he could not inform those whom he enlisted. mr. e. said he had already remarked the extreme difficulty under which these persons labored, that they were at a distance of several thousand miles from this country, incarcerated, and friendless. he had satisfied his mind that they had engaged in this business unknowingly and unwillingly--and, what was now asked of the government? that they should expend large sums of money for the purpose of buying them out? no. all that the spanish government wanted, he undertook to say, was, that a request should be made by the government of this country for those men; and all the money required for this service, was money enough to send an agent there and facilitate his return. nothing had been said by him, mr. e. remarked, of the peculiar sufferings of these men; but there were representations enough, to show that they were chained naked in a dungeon, without clothing, and without wood. some had died and others must die. he hoped, therefore, for the reasons which he had given, that the committee would be satisfied that these men were not guilty of crime. if not guilty, he hoped there could be no doubt that they were a proper subject for the interference of the government. mr. bacon observed that the conclusion which the gentleman from virginia (mr. randolph) had drawn, rested upon the idea that the men were guilty. if they were guilty, they certainly should not receive the benefit of the interposition of the government of the united states. they had no claim on the united states when considered as criminals, or as men who had voluntarily engaged in this service. the report of the committee did not state this to be the case. i acknowledge, said mr. b., that they are guilty in some respects, having innocently transgressed the laws. if they are guilty in the eye of justice, i contend they ought not to have relief. the report of the committee states, that, under a persuasion that the facts set forth by the petitioners were true, they were induced to submit this resolution. the committee had evidence, which they deemed competent, to prove that these men were not guilty men. in what respect, then, are they to be compared to aaron burr? no man will say that he did not proceed on his expedition with his eyes open, or that he could plead ignorance. the fact in relation to these men appears to be that they were inveigled; that their offence was involuntary, not as respected engaging in what they thought the service of the united states, but as to going abroad, for against their consent they were forced into the service. therefore, with great truth, it might be said that they were scourged to the service. if this was the fact, as the committee appear to have believed, i ask, in what their case differs from that of men taken captives by the algerines? those men taken by the algerines are engaged in lawful commerce; these poor men are engaged in an unlawful act, but not knowing it to be unlawful, and believing it to be correct, they are as innocent, in fact, as those who act innocently. the gentleman says, suppose they were to return to their country, would they not be punished? if the facts, as they state them, are correct, as i believe them to be, i do not believe that they would be punished. the law does not punish a man because he does not act, but for the _quo animo_ with which he does it. mr. taylor said if he could view this subject in the light in which it had been viewed by most of its advocates, and particularly by the gentleman from north carolina, (mr. pearson,) he should think it was the duty of this government to make exertion for the release of these people; but even then he should inquire whether any exertion in their favor would not rather do them an injury than a service; for it would be recollected that every gentleman who had spoken seemed to consider the mercy which was asked to depend upon and to be bestowed by the united states. were i a spaniard, and attended the debate in this house, i should think that gentlemen in favor of the resolution contemplated an infraction of the rights of the nation before whose courts, and by whose laws, these men were condemned. these fine appeals to mercy and humanity would apply well before the power possessing the right to bestow mercy, but are not applicable to the feelings proper to be exercised on this occasion by this house. i say that it is one of the attributes of government to punish those who have infringed or broken the laws of the country. these people have been condemned by a spanish tribunal; it is by that government alone that mercy is to be shown; and an exertion by this house in attempting to bestow mercy upon these people is an infringement of that right. i challenge gentlemen to show me an instance in the annals of diplomacy of a like nature with this proposition. i recollect one instance, but i have heard no gentleman propose to go so far. oliver cromwell, when a member of the british commonwealth, was imprisoned by the inquisition, ordered his admirals to draw up before the harbor and demand his release. this is the only case i have met with in the course of my reading, of an attempt by one nation to relieve criminals condemned by another nation under its own laws. if this view be a just one, it certainly becomes a matter of great delicacy. if this government had never been by the most secret whisper implicated (unjustly, as i firmly believe) in this transaction, still it would have been a subject of the greatest delicacy for the government of the united states to interfere. what will the government of spain, junta, king, or governors of spanish provinces to whom you apply, say to you on this subject? why they will say--"we have long suspected, we have heard from your own quarter, that you were implicated in this expedition; you now give us proof; you have come forward in an unprecedented manner and interfered in a case with which you have no business, a case which is fully embraced by the sovereignty which we ourselves exercise over our own courts." will it not at once be inferred that these assertions throughout the united states had been true, and that this government was implicated or concerned, or, to use the words of yesterday, that this government had connived at such an expedition? you will but render the sufferings of these people more rigorous. it is not to be conceived, although the gentleman from massachusetts and others have acquitted the government of participation, that the spanish government will do so also. why, even in our cool and calm situation, you see that suspicion of the connivance of the administration is not yet quite done away--and do you suppose, sir, that the spaniards, against whom repeated expeditions have been made, at a distance from those sources whence conviction might flash upon their minds, will form the same opinion of the subject that we do? fear forms a bias on their mind; and we form a conviction on the side on which we feel interested. gentlemen, in order to induce us to grant pardon to these men, which we have no power to do, have told us that they are innocent; because, forsooth, they themselves have said so. i recollect, sir, once in a conversation with a most eminent barrister in the state in which i live, who had often performed the duty of counsellor and advocate in our state, he informed me that in a practice of thirty years, in the course of which he had been concerned in the cases of many culprits, on many, nay, on all occasions, he put this plain question to his client: "i am your counsel; it is necessary for me, in order to make the best possible defence of your cause, to make the best statement in your favor, to know whether you are guilty or not." he declared that he had never yet met with a man who acknowledged that he was guilty. i believe that this disposition to appear innocent, is inherent in human nature. it is natural for these men to say that they are not guilty; they said so to the court before whom they were tried. why were they not liberated? why was not that mercy which is so pathetically called for bestowed on them by that tribunal before whom the case was examined? if they are the immaculate and almost sainted victims which they are described to be, why did not the court which heard the testimony on both sides of the question bestow that clemency asked of us? i should presume, that when all the circumstances came out before the court, they were not favorable to the petitioners; and it is a respect due from this government to the acts of that government that such a construction should be put upon this matter. if we are to distrust the acts of the spaniard, because, as we are told, he is vindictive and cruel, he might justly say that we have not done to others as we would be done by. we should place the president of the united states in a very unpleasant situation indeed by requiring him to demand these men, if we would not also be willing to go to war for them. as our navy is now afloat i would propose as an amendment to the project, if gentlemen are serious in their determination to rescue these men, that our fleet shall sail before carthagena and compel the spanish governor or junta to give them up. this is the only mode of interfering with a matter of this kind, which is sanctioned by precedent, as i have before stated. it would seem, sir, as if the passing scenes of this world were entirely forgotten. the british government has been suspected of having connived at this expedition as well as the government of the united states. they have received miranda into their bosom; and on the examination on the trial of sir home popham, it did appear that he had received orders to sail for a particular port of that continent to create a diversion of an attack expected to be made in another part of it. but what have the british government done on the subject? have they not considered it a delicate one? have they not in their conduct given us the most sound and wholesome advice on the subject? although i believe these men were employed to answer a purpose all-important to her, yet she has not extended towards these sufferers in her own cause that clemency which is asked at our hands. these men who were suffering in her employ, demonstrably acting in furtherance of her interest, have not met with the clemency of the government; and the case is more strong when it is recollected that since the capture of these men, although previously at war with spain, great britain was not only at peace but in alliance with that nation. with all these favorable circumstances, when but a hint from the british ministry in favor of these people might have released them, yet being so delicate a subject that it has not been touched by them, shall we, who have been crusading and exerting every nerve for the releasement of our seamen, and with all our efforts have been unsuccessful, shall we start on a fresh crusade for these men, when the efforts of the government in the other cause, in so noble, so just, and so humane a cause, have as yet proved unavailing? shall we engage in a contest for these people, who are acknowledged justly to be in the power and under the sentence of the courts of another nation, whilst the honest american tar, guiltless of harm, is writhing under the lash of every boatswain on board a man-of-war? if you will go on and reform the whole world, begin with one grievance first; to use a homely phrase, do not put too many irons in the fire. sir, if the spanish nation has any feeling for its sovereignty, it would spurn your request. only suppose that nation to possess the same feelings which actuate every breast in this house; which actuate the american people. suppose the claim of mr. burr to citizenship in britain, on the ground of once a subject always a subject, had been recognized by the british government. suppose that he was suffering in chains in some of your prisons, and because they had heard that mr. burr might have been innocent, the british government had asked his release, would not the people of america have spurned the request as an indignity to the nation? and may we not suppose that these proud spaniards, as they are called, may have feelings of a like nature? i believe, sir, that the course proposed would only add rigor to their sufferings, weight to their chains. mr. livermore asked if the committee which made this report had not before it evidence that certain british subjects concerned in miranda's expedition had been liberated on the application of some officers of that nation? if they had it would be a fair answer to the eloquent speech of the gentleman from south carolina. mr. randolph said he did not think that the information asked for by the gentleman was at all material to this case. it was a matter of no consequence at all, as respected the statement made by the gentleman from south carolina on (he had no doubt) very good grounds. what, said mr. r., has been the situation of great britain in relation to spain? great britain, at the time the expedition was undertaken, was an enemy of spain--was at actual war with spain--and therefore in a subject of great britain it might have been highly meritorious to annoy spain, either at home or in her colonies to the utmost extent in his power, without any direct authority from his government. subsequently to that time, however, great britain has become the ally of spain in consequence of the revolution; and at that time great britain obtained from persons exercising the authority of government in spain the release of these prisoners, which it is perfectly natural spain should then have granted. but suppose, instead of that change having taken place in the relations between great britain and spain, bonaparte had quietly succeeded in putting king joseph on the throne of spain and the indies, and applications had then been made; or suppose that the application had been deferred until now, and the power of the house of bonaparte was as complete over the colonies in south america as we have every reason to believe it is over the european possessions of the mother country, would the british subjects in that case have been released? it is an unfortunate circumstance that no question can be agitated in this house and tried upon its own merits; that every thing which is, has been, or may be, is to be lugged in on the question before us, to the total exclusion of the merits of the case, and in this way, instead of a session of three and six months for doing the business of the nation, if every question is to be tried in the manner in which it appears to me this has been, we may sit to all eternity and never get through it. i lay no claim to greater precision than other men; but really i cannot perceive what kind of relation, what kind of connection exists between most of what i have heard on this subject, and the true merits of the case. gentlemen get up and abuse the spanish government and people, and what then? why, it appears all this is preliminary to our making an humble request of this government and people that they shall grant us a particular boon. to be sure, sir, all this time we do plaster ourselves unmercifully--we lay it on with a trowel--and gentlemen seem to think that if we sufficiently plaster ourselves, our president, and people, and be-devil every other government and people, it is sufficient to illuminate every question. and this is the style in which we speak to governments perfectly independent of us!--a very wise mean, to be sure, of inducing them to grant the pardon of these people as a favor to us. sir, it would be a strange spectacle, to be sure, when this minister that is to be, this sort of anomalous messenger whom you are going to send, i know not exactly to whom; whether to the junta, or persons exercising the power of government in the provinces, or to the government in europe; when this minister goes to carthagena or elsewhere, if he should carry to the viceroy along with his credentials a file of papers containing the debates on this question. why, sir, like sir francis wronghead, we appear all to have turned round. my honorable friend, the gentleman from south carolina, (mr. taylor,) spoke of the crimes of these men. gentlemen on the other side, who wish them to be pardoned, tell you of nothing but of their innocence, and the injustice of those who condemn them and now have them under punishment. two more such advocates as have appeared in favor of this proposition would damn the best cause ever brought before any house or any court in christendom. the gentleman from new york, (mr. emott,) who spoke yesterday, certainly very pertinently, and very handsomely, tells the house that in this case no other money than that of the united states, will be received; that with a sort of castilian fastidiousness, those persons acting for the government of spain will not touch any money which shall not be offered in the quality of public money. i believe no such thing; and moreover, i wish it to be distinctly understood that the question of money is not the question with me; and that to suppose it necessary for the government of the united states to interfere for the purpose of raising so pitiful a sum as $ , for the relief of these unfortunate men, whose situation i most seriously deplore, is a libel upon the charity of this country. i believe, notwithstanding the public impression on this subject against the petitioners, that the money could be raised in half an hour in any town in the united states. i believe it might be raised in that time in the city of washington. it is not a question of the amount of money wanted; it is, whether the government of the united states shall lend its countenance to persons situated as these unfortunate people are? sir, had we at that time been at war with spain, as great britain, something might be said in favor of these persons. but we were not at war with spain, and these men knew it; and i believe they knew at least as well as i know, that when a man is recruited for _public service_, as they say they thought to be their case, he is immediately taken before a justice of the peace and sworn. this part of the ceremony, however, is not stated to have taken place. to be sure, sir, the gentleman from new york (mr. emott) said, i believe, every thing that could be said in favor of those unfortunate people, and really almost convinced me that we ought to make this interference; but unfortunately for him and for his cause, other advocates rose up in its favor and placed the subject in a situation not only as respects the majority of this house, but as respects that government with whom intercession is to be made, which will completely foreclose any attempt at relieving the sufferers. it is not possible that the majority of this house, or that the spanish government, can be affected in any other manner than with disgust and indignation at such stuff. the gentleman from new york told us that these were ardent young men, who were anxious to go to caraccas for the purpose, i think, of correcting the despotism which existed in that country; or otherwise, political quixotes. this, i take it, will operate little in their favor with the spanish government, however it may in ours. i confess i feel very little sympathy for those who, overlooking their own country, and the abuses in their own government, go in search of political adversaries abroad--go a tilting against political despotisms for the relief, i suppose, of distressed damsels compelled to live under them. the question was now taken, and the votes being affirmative , negative , the speaker voted in the negative--the votes then being equal, the question was lost. monday, june . _the batture at new orleans._ the house proceeded to consider the resolution submitted by mr. macon, on the sixteenth instant, in the words following, to wit: "_resolved_, that so much of the message of the president of the united states of the seventh of march, one thousand eight hundred and eight, as relates to the batture in the suburbs of st. mary's, adjoining new orleans, and the documents accompanying it, together with the petitions of edward livingston, and the petitions of the citizens of new orleans on the same subject, and the documents which accompanied the same, be referred to the attorney-general of the united states, and that he be instructed to receive and collect such other testimony as may be necessary to ascertain the title of the united states to the before-mentioned batture, and that he be directed to report to this house, at the next session of congress, his opinion as to the validity of the claim of the united states to the said batture." mr. burwell thought that this was not the proper course to pursue; but that the course recommended at the last session was the one, viz: to give the petitioners the right of appeal from the decision of the orleans court to the supreme court, or to give the united states the same right, should the decision be against them. he could see no advantage in the procrastination now proposed, nor any injury to the united states or the city of new orleans, in the course which he advocated. he doubted, although the letter of the law of might cover this case, whether it was ever intended that that law should operate as this had done. my intention, said he, in voting for it, was that it should apply exclusively to the western lands, commonly called the yazoo lands, and such other lands as were occupied by hundreds who might be formidable from their numbers. to undertake jurisdiction on questions of property is taking upon ourselves the functions of another department of the judiciary. the case involves important points of law--and let me ask, whether the gentlemen in this house are so well read in law as to be able to decide such an important point as this? it does appear to me that on all the questions of private property arising in the united states, where the question of right is not to be brought before this house, we ought to consult the convenience of the parties by promoting dispatch. on the question whether this property belong to the united states or to the petitioners i am completely ignorant. nor would i have it inferred that i believe the petitioner to have a right to the property; i take it that the claim of the united states must be good, or the inhabitants of orleans would not be so zealous in the support of it. mr. poydras asked for the reading of a letter which he had received from the governor of orleans territory, which was accordingly read. the letter states, that if it were possible that the committee to whom mr. livingston's claim was referred could now visit new orleans, they would be convinced that the batture, now covered with water, was in fact the bed of the river, and, therefore, could not be private property. mr. p. stated the history of this piece of alluvion at some length, and the circumstances under which it had always been deemed public property. mr. sheffey said that before passing this resolution, gentlemen ought to ascertain what the attorney-general could do in this case. he could not compel the attendance of witnesses, or collect testimony of circumstances which occurred a hundred years ago; and unless he could do this, it was impossible he could examine the title, for testimony as to facts was essential to enable him to form a correct opinion. what influence could the opinion of the attorney-general have? was the right of the citizen to fall prostrate before such an _ex parte_ opinion or statement as that might be? if it was not to have influence, why thus evade a decision on the prayer of the petitioner? if it was to have any influence, it must be a pernicious one, because founded on _ex parte_ testimony. would the house go into the merits of the case on this opinion, when obtained without affording an opportunity to the party interested to prove that the law was not correctly expounded nor the facts correctly stated? surely not. if they did not, if they heard opinions on both sides, they converted this house into a judiciary tribunal. was this body calculated for that branch of government? no; this, mr. s. said, is a government of departments, each of which ought to be kept separate. what, sir! is this a question of right between the united states and an individual, and we are about to take it into our own hands, to wrest it from the constitutional authority, and decide it ourselves? i hope we shall not; and, therefore, i am against this proposition. what does the attorney-general state in his report? aware of the impropriety of his deciding, he tells you--what? that the usual course, where the rights of the united states have been involved, has been to appoint commissioners to hear and decide. here the attorney-general tells you it is not proper for him to decide. and i should never wish to see the case in which the attorney-general's opinion is to give authority for dispossessing an individual of his property; for if it can be done in one case it may be in every case. any individual may be driven from his property by military force, and then his title be decided by an ill-shapen, one-sided statement and opinion of the attorney-general. against such a decision i do protest. is it because you have power on your side, sir, that you will not submit to a judicial decision of this question? if there be a controversy about a right, there ought to be a judicial decision. i, sir, have been unable to see how an individual having property, in which he was put in possession in or ' by a judicial decision, could be disposed of it by the act of , the operation of which was limited to acts done hereafter, that is, after the passing of that act in . that law too speaks of "lands ceded to the united states." was the batture ceded to the united states? i say not, because it was private property before the united states possessed the sovereignty of the country. by the treaty of with the government of the united states, the rights and property of the inhabitants of louisiana was secured to them. what then is the inference from this state of the case? that the united states got possession illegally, in defiance of judicial authority. i am sorry to see that the judicial authority has been set at defiance, and the presidential mandate carried into effect at the point of the bayonet, right or wrong. this was the case. those who were put in possession were ousted by military force. let me not be understood as throwing odium on the executive; far from it. i believe the executive acted conscientiously, but upon an _ex parte_ statement. the president was never told that the case had been judicially investigated. those facts were taken for granted, on the other hand, which did not exist, and those which formed the foundation of the true merits of the case, were withheld. mr. poydras spoke at some length in reply to mr. sheffey, and in defence of the title of the united states. the batture had many years ago been considered as public property, and no one who examined the circumstances of the case could for a moment doubt it. he said that it had never been claimed as private property until after it came into the possession of the united states. he hoped the rights of the public and of the people of new orleans would not be trampled upon to grant the petitioner his prayer. mr. macon said that he was himself in favor of giving the right of the united states to the property to the people or corporation of new orleans, and letting them and the individual contest it. there was nothing new, however, in the reference of a subject to the head of a department, whose opinion would have no more weight than reason, and so far only ought it to have weight. mr. m. said he had no more desire to interfere with the judiciary than either of the gentlemen who had spoken. if provision was made for trying this case, must it not be extended to all others? in order to do justice, it must be done to all. had not a special court been refused in relation to a property of much greater value than this? before congress made a special court for a certain case, they ought to look at the consequences. it was departing from the general system of the nation to appoint a court for a special case. perhaps there was something in this case which differed from other cases: but he doubted whether it would warrant the appointment of a special court. mr. m. said he saw no other way of treating this subject but by letting it go before the courts already organized. if the right was in the petitioner, be the consequences what it might, the city of new orleans had no right to take it away from him. mr. troup observed that this case was probably one which would fall under the old maxim, _nullum tempus occurrit regi_ or _reipublicæ_. it appeared to him that there was a constitutional difficulty in this case, which did not appear to have suggested itself to the mind of any gentleman. first, has the united states a claim, either real or disputed, to this territory? whether disputed or otherwise, provided the claim be asserted on its part, the question is, has the congress of the united states a power to decide the validity of that claim? and if it has, is it proper so to decide it? what is the subject-matter in dispute? public property; and what species? landed. then the question results, has congress a right, in order to determine its title, to refer it to any tribunal whatever? i contend not; the right to public property was originally in the people of this country; they could never be divested of their great public right to the landed property of the nation, but by their express consent. they did give that right to the congress of the united states, in declaring that it should have power to dispose of and make all needful rules and regulations concerning public territory. would it have had that power, if this right had not been expressly delegated? i know that, under the old articles of confederation, congress did undertake to legislate as to property; but it was always questionable whether they had a right to do so--and this was not the only point on which congress did exercise powers which were brought into question. the right to determine claims to public property is not only guarantied exclusively to congress by the constitution, but the practice has been invariably pursuant to it; it was so in . the government not only asserted its right in the first instance, but asserted its power to enforce the right at the point of the bayonet. if the public have always been in possession of a certain property, the man who enters on it without their consent is a trespasser on that property. upon this view of the subject, there is a constitutional difficulty on which the house should decide, before it entertains a motion for delegating a power to decide this question to any tribunal or commission whatever. mr. boyd said, admitting all the gentleman had said to be true, his observations did not apply to this case. he had spoken of the right to public property. the question now was, whether this was public property or not; if it were certainly public property, on which ground the gentleman rested his argument, there could be no question on the subject. it was asked only before they decided between the individual and the united states on the right to land, not confessedly public property, but claimed as such, that fair investigation should be had. mr. b. disclaimed the power of deciding judicially upon the subject; it was a right which he had never thought of this house claiming. a delay of justice was a denial of it. the individual petitioning had been in possession of the property; it had been taken from him by force, and he now asked a trial of his title before a competent court--and this opportunity, mr. b. said, he ought to have as speedily as possible. mr. randolph said he should vote against that report. he said it was no part of his intention to deliver any opinion on the merits of the claim, although he had devoted not a little of his time to the study of that question, for two reasons: first, that it would be a prejudicated opinion, inasmuch as that was not the question which the house were called upon to decide, even if it were competent to decide it. i am extremely sorry, said he that the law of has been brought into view of this house by my friends from north carolina and georgia, and for this reason: that that law has no bearing at all on the present question. its object was wholly different from that to which it has been misapplied. what, sir, was the object of that law? to defend against a conspiracy, i may properly term it--against the lawless violence of confederated associations, a vast property. how has it been applied? not to a great public property, but to a speck of land, to which, as i understand it, a single individual, or at most three or four, put in a claim. such an application as that of the law in question was never intended by the legislature; and, if applied to such a property as the batture, and to the case of a single individual, may be applied to the property of every man in society. what is the doctrine of my friend from georgia? that the public are always supposed to be in possession of the national domain. true, sir, and it is also true that those who enter upon it and endeavor to appropriate it to themselves, are trespassers, and as such, may be resisted by force. but that is not the case in the present question--very far from it--for the public never had been in possession of the property in question. without attempting to enter into the merits of the real title to the land in question, let us take it on the ground of the right of the citizen. a citizen comes before this house, and complains that he is dispossessed of his common right by arbitrary power. if, after a cause has been heard by a court, and a citizen put in possession of a property, by a decree of that court, he is dispossessed of it by military violence, where, if not before this house, is he to prefer his claim for redress? there is no court before which he can go, because the court which is the last resort in this case has already unavailingly given its decision. there is no court of appeal, no superior tribunal, and if there were, and a decree of the supreme court obtained in his favor on the appeal, what is any decree to avail against armed men--against muskets and bayonets? but this is not the only reason why i am sorry that the act of has been brought in to apply to this case. it is because, if this house can be once prevailed upon to consider this case as analogous to the yazoo case, many most injurious consequences must follow therefrom. the first is, that that odious and supremely infamous claim will be put upon a ground which it is by no means entitled to occupy; and i entreat my friend from georgia, and those whose minds are unalterably made up on the yazoo question, not to give their enemies such a prize as they must have on us, if we agree to confound the yazoo claim with that before the house. there is no sort of analogy between them. on the other hand, sir, supposing the right to be in the united states, i beg gentlemen not to create so forcible an interest against the rights of the united states as will infallibly be embodied against it if we confound the two. i have no idea of giving the yazoo men such a handle. again, let us suppose, if we can suppose it, that the right is in the petitioner; may it not, supposing a great majority of the house to be against the yazoo claim--we do not know how they are disposed--may it not create an unjust bias against the petitioner? so that in whatever aspect we view it, it is not only impolitic, but, what is worse, extremely unjust to attempt to identify the two cases. and, sir, it is a matter of curious speculation, that while the act of has been brought into operation in the case of a solitary individual and a little speck of property to which it was not intended to apply, even supposing the case in question to to have arisen subsequently to the passage of that act; that, although it has been misapplied in this case, it has not been applied to the case to which it was intended to apply, and for which it was enacted; for, if i understood my friend from georgia a few days ago, some hundreds or thousands of intruders have set themselves down on the public lands, and the public force has never been employed against them. on the contrary, the artillery of government has been brought into play against a single individual. it was, indeed, said that these intruders had agreed to remain as tenants at will; but, let them remain till they are sufficiently strong, and they will give you another chapter in the history of wyoming; for, after they are sufficiently strong to hold territory, although the arm of government has been applied successfully to oust a single individual put in possession by a decree of a court, you will find it nerveless to expel these men. with regard to the doctrine _nullum tempus occurrit reipublicæ_, it is a dangerous doctrine, if carried to the extent to which i apprehend my friend from georgia would carry it. i venture to say that the abuse of that doctrine in the celebrated case of sir john lowther and the duke of portland, which created one general sentiment of indignation in the british nation--an attempt under that maxim to deprive a subject, hostile to the court, of property of which he had been long in possession, for the purpose of transferring it to a minion of the court--that case, with all its aggravated enormities, does not come up to the case before the house; and i speak without reference to the question whether the petitioner has a right or not to the property in this case. the question of right is not before the house, and that question, decide which way you will, can have no sort of weight in the vote which the house ought to give. the question is this: having been long in possession of a piece of land, the title deeds destroyed, records burnt, and possession the only title you have to show, an attempt is made to dispossess you of the property; a decree of court confirms your right; if the individual, under these circumstances, can be turned out of possession by main force and strength, and that, too, military force, there is an end in the right to property of every man in the country. sir, i have been astonished, and grieved and mortified, to see so little sensation created in this nation by the procedure in question. it strikes at the root of every thing dear to freemen. there is an end of their rights. what, then, is this case? an individual comes before us, and says, that after having been put in possession of a piece of land, (i speak not of the validity of his title; it is not concerned in this question,) he was dispossessed by military force of this property. these two facts i do not understand any member of this house to deny. and what does he claim? he claims of you, as the guardians of the rights of every man in society, _justice_. and where do you send him? to the attorney-general. i will suppose that in the lowther and portland case, the duke of portland had been referred to the attorney-general. would the english nation have endured it? no, sir. much less would they have endured, military as the nation is becoming by the introduction of large standing armies, that he should have been dispossessed of his property by an armed military force, at the fiat of the crown. the question is, what should be done? sir, what should not be done is perfectly clear. it ought not to be done that the petitioner should be sent to the attorney-general, who has already given an opinion on his claim, though that is very immaterial, which opinion it seems we cannot find. if i understand any thing of this government, however, it ought to be on record, and this return of _non est inventus_ ought not to have been received. all that we have to do, it appears to me, is to make a provision, in the nature of a declaratory law, not amending the act of , but, declaring what the law is; and we ought to quiet the rights, and the mind too, of every man in society, by declaring that, by the act of , it was not intended to authorize the president of the united states to interpose the bayonet between the courts of justice and the individual. this power never has been given, never was intended to be given. mr. gold said that this was one of the most important subjects that had ever been brought before the house. he did not mean to enter into the merits of the case. the gentleman from virginia had very clearly expressed all those sentiments which every man must feel on hearing the history of this case; and as regarded the ground taken, of _nullum tempus occurrit_, the gentleman had repelled it very properly--and indeed in that country whence the maxim had been derived, whenever it was attempted to be put in force against ancient possessions, it had been executed with great difficulty. it is in the very teeth of _magna charta_, which says that a freeman shall not be dispossessed of his freehold without a better right is ascertained. there are a variety of forms by which the right is guarded. if i, said mr. g., understood the gentleman from georgia, (mr. troup,) he considers it a sacrifice of the rights of the united states to permit a decision on its property to pass into the hands of third persons. even in england the prerogative is not carried so far. the crown has frequently consented that the right of government should pass into the hands of third persons, viz: of commissioners, for the purpose of investigation. i will not trouble the house with lengthy remarks on this subject. i can hardly advert to it without feeling all that has been much more eloquently expressed by the gentleman from virginia than it is in my power to express it. let gentlemen look around and see if they can find a precedent for this transaction. and when we consider it, every man's feelings must be operated upon too strongly to permit him to argue. the course suggested by the gentleman from virginia must prevail, or we no longer live under a government of laws, and those principles on which it is founded are destroyed. the man ousted must be put in possession, must be restored to the possession of the property which the hand of violence has wrested from him; and i hope that a proposition to this effect in a proper shape will be presented. mr. gholson said he thought it would better become the character of this assembly to discuss every subject with calmness and deliberation, and on its own merits, than to endeavor to influence the decision by an appeal to the passions. it was important that such a course should be pursued, whether with reference to a great political principle or to the interest of the individual whose rights were said to have been wantonly prostrated at the executive will. i (said mr. g.) have been early taught, and the doctrine has grown with my years, that the right of property is not one of the least consideration in a free constitution. it is of a nature so sacredly inviolable that, when clearly ascertained, i would never encroach upon it by any means but through the regular constituted authority. it would have been under this impression that, had i been a member of the legislature when the law of was introduced into the statute book, i should have been opposed to it. but receiving all the sanctions of a law, and as such containing a rule of conduct in certain specified cases, what was the executive to do? was he to set at defiance the law of the land? a doctrine like this can never be contended for. it seems, however, that to satisfy gentlemen the president should have refused to carry this law into execution, which i acknowledge does usurp judicial authority.--[mr. randolph said that his ground was that the president had not executed the law. if a law were ever so unconstitutional, the president having signed it, it would become his duty to carry it into effect. but he denied that he had carried it into effect.] upon that point, continued mr. g., my colleague and i are at issue. i rise not to discuss the merits of the claim, which i have no disposition to do. i rise to defend the late president of the united states, to endeavor, to the extent of my feeble powers, to place this question in a proper point of view. if the president of the united states has gone beyond the letter of the law, which itself tends to encroach on the rights of the citizen, i would be the last person to justify him in thus trespassing on the dearest rights of a freeman. but it is very easy to show that he has not exceeded the express provisions of the law in question. the act of contains two clauses having a bearing on the subject; the first ascertaining the character of the persons to be ousted, and the second providing the means of ousting them. the president is authorized to exercise this power, either where property was previously in possession, in which case he is to give notice, or where it was subsequently entered on, in which case he is not required to give notice. it is easy to show that this is one of the cases contemplated by that act. it is well known that the feudal law did exist in louisiana, previous to its acquisition by the united states, and that by that law alluvion does accrue to the crown. now, if the feudal law did exist, and by that law alluvion did accrue to the crown of france, does it not follow that the same right did accrue to the united states by the deed of cession from france, who owned the territory? if the claimant was in possession when this act passed, it became the duty of the president of the united states to give him three months' notice previous to his removal; if not, no such notice was necessary. on this point i need only refer to the fact that it was not so early as the passage of the act, indeed not till the d of may, that the claimants came into possession. they were quieted in possession, so far as the rights of the united states were not concerned, on the d of may, . the decision of the corporation court of new orleans is relied on as giving a title to the petitioner. that that decision did at all affect, in the remotest possible degree, the right of the united states, is a position which no man acquainted with the principles of law will contend for. the decision cannot affect the right of the united states, because it was not contested or defended before that court. it is said that the feudal law does not exist in france. from time immemorial it has existed all over europe. that it exists at this time in this country there can be no doubt. the right to lands is allodial, but is inherent in the government. is it denied that the government can take property from an individual, making him compensation therefor? if the right to land be indefeasible, could the government run a road through it? it certainly could not. i wish it to be distinctly understood that i do not attempt to say where the real right to the property in question does reside. but i do say, that, according to the treaty of cession, it did become the government of the united states to exercise the power which the president under the law of did make use of. if there has been any violation of right, it was in the passage of the law under which the president acted. it was such a one as, under present persuasion, i could not have voted for, even to remove a yazoo purchaser. i would even give to such a one his right to a fair trial. i would not have agreed to pass it, for a reason given a day or two ago, that the right to trial by jury is inalienable; it is a right which descends to us with our other birth-rights; it is one without which liberty is but a name. it was an unfortunate circumstance that such a law did pass. but if the legislature thought proper to enact such a law, let them not, in the name of the great god, throw the blame on their instrument, on the president, who was innocent of fault, and bound to carry the statute into effect. there is undoubted proof that the president only acted in pursuance of the statute. the retroactive part of the statute is the most horrible feature in it. but it is said that this is an extreme case, that this small spot was selected as the object of executive vengeance. i am informed that in almost every instance of intrusion on the public lands, settlement was made by individual claimants. i would rather give up fifty times the value of land of the united states than to encroach against law on that of any individual. it was not the execution of the law which encroached on the rights of the citizen, but the law itself. i would ask, how can it be contended to the contrary? who was in possession of the land when the law passed? it had been used as public property, and had every requisite to that character; and as such, when any one took possession of it, the president would not have done his duty under the act of , had he not caused them to be removed. monday, june . _non-intercourse._ on motion of mr. smilie, the house resumed the consideration of the report of the committee of the whole, on the bill from the senate, to revive and amend certain parts of the act interdicting commercial intercourse. mr. dana said the amendment moved to the amendment of the gentleman from virginia (mr. sheffey) went to give a construction to the bill which would operate as a complete exclusion of the vessels of both powers until a satisfactory adjustment of all existing differences shall have taken place. what, said mr. d., is the situation in which we are now placed? on what principle is it that british ships were first excluded and on which their exclusion was confirmed by the non-intercourse law? they were originally excluded by the proclamation of the president of the united states in consequence of the attack on the chesapeake. the president of the united states now in office has declared his acceptance of the proffered terms of satisfaction for that outrage. and, after that, is it proposed that we shall continue the measure of hostility when the cause alone which led to it is completely done away? i should suppose that in the very act of adjustment, which took place between the british minister and the american secretary, it is implied that we should do nothing further on this subject. the president of the united states has accepted the satisfaction offered; he has declared those terms, when performed, to be satisfactory. and are gentlemen considering the restoration of the seamen taken from the chesapeake as a reason why we should continue the interdict? if we examine this subject fairly, the great principle of reparation was disavowed of the claim to search our armed vessels, and a homage to our rights. that matter must be deemed to be settled, if the president of the united states had authority to settle it. if the president had not power to settle it, this furnishes strong evidence that the vote of approbation of his conduct was a proper proposition. as to the interdiction by the non-intercourse act, i apprehend that was founded on the violation of our neutral rights by the belligerent powers, the president of the united states being authorized to renew trade whenever the edicts violating our lawful commerce should be revoked. whether or not the president has done right in accepting the assurance instead of the fact, gentlemen have considered it unnecessary for them to express any opinion upon it. if there be no edict affecting our lawful commerce in force by one belligerent, the interdict is at an end in point of fact in relation to that one. the question of the affair of the chesapeake is settled, if the president had power to settle it; and as to the other cause of interdiction, the president has declared that the british orders will have been revoked on the th of june. has the president acted correctly or not? if he has acted correctly in taking the assurance for the fact, the very principle of the non-intercourse is at an end as respects one of the belligerents, and there can be no ground for the exclusion of british armed vessels. mr. taylor said he thought the gentleman from connecticut used the word hostility in relation to this measure of including british armed vessels from the united states. now, i believe, sir, said mr. t., that if we go to the opinions entertained, not by the president of the united states, but entertained and expressed in the very foundation of the arrangement which was made, it will be found that the very hostility intended to be produced by the president's proclamation ceased at the moment when we passed the non-intercourse act in which we excluded the vessels of both the belligerents. the hostility was in the admission of the armed vessels of one, and excluding those of the other. it ceased by the non-intercourse law, and so satisfactory was this law of the last session, that it was the very foundation on which the overture was made which ended so much to the satisfaction of this nation. so that, in fact, when we perpetuate the order of things produced by that act, we do not perpetuate the state of things produced by the interdictory proclamation of the late president. it was matter of satisfaction to the british government, as expressed by their minister here, that the quality of hostility in the exclusion of her vessels was taken away by the non-intercourse law. have we promised, in the negotiation which has taken place, that we will commit an act of hostility against france for the boon which we have received from the hand of great britain? no, sir; and yet, if we take the definition of mr. canning, as to excluding the vessels of one belligerent and receiving those of the other, according to the mode proposed by the amendment, without the sentence moved to be admitted to it, it will in fact be agreeing to go to war with france. according to the opinion of britain, promulgated not only to this government but to the world according to the demonstration made by the british government, you will undertake a measure of active hostility against france; for what? for any great boon that this government has received from the hands of great britain? no, sir. if all the promises were fulfilled to their full extent, we should then receive but justice at her hands. it was acknowledged, too, in the discussion which took place, that any nation, particularly a neutral nation, has a right to exclude the armed vessels of both belligerents; but that, on the contrary, the state now proposed to be produced, the exclusion of one and admission of the other, is an act of hostility of the party excluded. as i would not be compelled by the utmost ill usage by either belligerent to take part with the other against that one, neither will i take a consent or refusal from one or the other to do us justice as a motive for alliance, or a war which shall compromit our neutrality. i now speak of both, for both have used us as ill as was in their power. as kicks and cuffs have not compelled us to take part with them, neither shall caresses or fawning, for we will mete out an equal measure of justice to both. i consider the state of things produced by the non-intercourse as totally distinct from that produced by the proclamation of our late illustrious president. mr. fisk.--it was my intention not to have troubled the house with any remarks on the bill now under consideration. i could readily have reconciled it to my feelings to have given a silent vote in favor of the bill, had not so many and various objections been made against it. but as it seems to be objectionable, and susceptible of so many amendments, in the opinion of so many gentlemen, the house will indulge me, while i offer the reasons which will govern my vote. this bill for which we were convened, has, during the time we have been here, received as yet but a small portion of our attention; and it is so important that upon its passage, and the principles it shall embrace, may depend the destinies of our country. it deserves our immediate and most serious attention. i hope it may be coolly and dispassionately examined, and treated according to its real importance. its principles have been carefully and scrupulously investigated by the committee who reported it, or a bill similar in its provisions, of which committee i had the honor to be a member. the language is plain; public ships are not interdicted. there is but one question to be decided in disposing of this bill, and that is respecting public ships; for i believe all will agree to renew the non-intercourse act as respects france. the question is, what regulation shall we make respecting public ships, and one of three courses is to be pursued? shall we exclude both, admit both, or discriminate? there are many who would be willing to exclude the armed ships of every foreign power from our harbors and waters. and considering what we have suffered by admitting them, it may be well questioned whether it would not be the best policy of this nation to interdict them by a permanent law. yet many gentlemen object to this, as being inexpedient at this period. it is said, and it is the principal argument urged against it, that it might embarrass our impending negotiations with great britain to interdict her public ships by this act. as i feel as much disposed for an amicable adjustment of our differences with that nation as any member of this house, and would be as unwilling to embarrass the negotiation, i would not insist on this interdiction. it is also said that england has made reparation, or agreed to make reparation, for the aggression which caused the interdiction of her public ships, and that as the cause no longer exists the interdiction should cease. _be it so_; and may we never have fresh cause to renew it! but, say gentlemen, we must not now recede from the ground we have taken with respect to france, we must discriminate. let us for a moment view the ground we have taken--not only as relates to france, but england also. we are not at war with either of the belligerents. our ministers at their respective courts are endeavoring to negotiate, and by negotiation to obtain redress for the injuries of which we complain, and whatever precautionary measures we might adopt would not be deemed a violation of our neutral character, so long as those measures were equally applicable to both the belligerents. we could not be deemed to have taken part with either to the prejudice of the other, while no other was benefited by our measures. while british public ships were interdicted, and our embargo existed, an offer was made to both the belligerents to resume our trade--the same equal terms were tendered to both. the nation refusing is left without a cause of complaint against us, for resuming our trade with the nation accepting the offer. before either nation does accept, america changes her position. the embargo is abandoned, and a general interdiction of the public ships of england and france, and a non-intercourse with these nations and their dependencies, is substituted. by this non-intercourse act, the particular interdiction is merged in a general regulation. this was to exist until the end of the next session of congress only. this was virtually saying, that the proclamation interdicting british public vessels from our waters for a particular aggression shall be revoked; and a general municipal regulation, over which the president shall have no control, shall be substituted in its stead. it was then, in order to preserve our neutral character, necessary that this rule should embrace both the belligerents. it may be said, and has indeed been frequently said, that the reason of extending this restriction to france, was her having burnt our vessels and imprisoned our seamen. but never, at least in the history of diplomacy, have cause and effect been more distant and unconnected. france, on the high seas, burns our vessels, and in her own territories imprisons our seamen. we, at the distance of three thousand miles, interdict our ports and waters to her public ships, which do not or dare not come within five hundred leagues of the line of our interdicted territory, and this is to retaliate for the aggression. can this interdiction be defended on this ground? it cannot. there must have existed some other reason. it was to preserve our relations with the belligerents in that state that should be consistent with our professions of neutrality. had the interdiction been confined to british vessels by this law, what would great britain have said to this discrimination? in vain might we have told her that we meant to preserve our neutral character, and not to take a part with her enemies in the war against her. our acts would have been directly opposed to our professions. with this discriminating, permanent, municipal law, could we expect great britain to treat with us as a neutral? if we did, we should be disappointed. if, then, it be inexpedient to make this discrimination against great britain, how is it less so, when directed against france? we are to admit british and exclude the french. and, are we to endeavor to negotiate, as neutrals, with france, upon this ground, with any reasonable prospect of success? it is desirable that the commercial intercourse between this country and france should be restored. peace and free trade is the interest and the object of america. while we throw wide open the door of negotiation to england, why should we shut it against france? while we facilitate negotiations with the british, why should we embarrass and prevent the same with the french? i wish to leave the executive and treaty-making powers of our government free and unshackled, to enter on negotiation with both these governments, under every advantage of success which we can give. on what ground can this discrimination be defended? you adopt this measure. our minister at paris is requested to explain it. is there any advocate for this discrimination in this house, who can conceive the grounds upon which our minister or our government are to justify this measure with our relations of neutrality? it cannot be defended. i am not for yielding to either nation, but, let our conduct be consistent, impartial, and defensible. if then, we are to be involved in a war with either, the resources of the country and the hearts of our citizens will support the government, and we need not be afraid of the world. but those men, or that administration that will, upon a mere useless, punctilious point of etiquette, commit the peace and happiness of this country to the ravages of war, will meet the indignation, and feel the vengeance of the intelligent citizens of the country. this temerity would meet its merited punishment. the people of america can see, and will judge for themselves; they can readily discern the difference between shadow and substance; they are neither to be deceived or trifled with, especially on subjects of such immense moment to their liberties and happiness. mr. burwell said he deemed it in some degree his duty to make some remarks on the bill before the house. he intended to vote against both the amendments proposed to the bill. i think (said mr. b.) that if my colleague who moved the first amendment, (mr. sheffey,) had taken that view of this subject which might have been presented to his mind, he would not have found such error in the course proposed to be pursued. he seems to have taken another ground, when by the clearest demonstration it might have been shown that the system proposed is one of impartiality to the belligerent powers of europe. it will be recollected by gentlemen of this house, that at the time the exclusion of french armed ships took place, it was upon the express ground that the british government objected to come to an accommodation with us, because we excluded her vessels and nominally admitted those of her enemy. on that ground i venture to say that the exclusion took place; because, at the time that it took place, it was considered a measure absolutely favoring great britain, yet not injuring france by a nominal prohibition of the entrance of her vessels. it was stated that there was not perhaps in the course of a year a single french public armed vessel in the harbors of the united states. have we any french frigates now in our seas? none. is there any probability that there will be any? no, sir; for france having now lost her west india islands, if her vessels are freely admitted, it is probable that there would not, in the course of five years, be a single french vessel within our waters. as the exclusion would be perfectly nominal, i would not adopt any thing to prevent a settlement of our differences with france. i am not now sanguine in my belief that we shall settle our differences with her; for every one acquainted with that government knows, i fear, that it is not to be diverted from its object by any arrangement we may make. but i would do away every possible justification that could be urged by france for not meeting our overtures for peace. this conduct would produce at home more union among our citizens; and, when our rights are attacked without a pretence for their infraction, there can be but one sentiment in the nation. i have always determined to admit british vessels as far as my vote would go; and should the house determine to exclude french vessels i should still vote for the admission of english vessels, because their former exclusion has been so artfully managed by the british government, and the doctrine has been so admitted by the presses in this country, as to give rise to the most unjustifiable conduct ever pursued by one nation towards another. as to the idea advanced by the gentleman from south carolina, (mr. taylor,) that, if we do admit them to take possession of our waters, they will take advantage of the privilege to our injury in negotiation, it has no force with me, for this plain reason; that, although the exclusion of them from our waters was not carried into execution by physical force, yet they did not enter our waters, which they might have done, in defiance of the proclamation. and why did they not? because, i presume, they had no desire to rouse the indignation of this nation by an open violation of the laws of the land. if, sir, you wish to gain the advantage of union at home, take away every pretext for the violation of your rights. let me ask if it be not better to admit them? by so doing you give up a principle which does not benefit you, and receive an accession of physical strength by union at home. i do not say that every one will be satisfied, because i have no doubt england has agents in the country, but so few in number as to be unworthy of notice. if great britain, on the other hand, attacks us when we have taken away every possible ground of collision and violates her promise, the people in every part of the country will be satisfied that her deliberate object is to destroy our commerce. we should have no more of those party divisions which have distracted us for some months past. it cannot be said that we are bound by any part of the negotiation to admit english vessels. i have seen nothing of the kind, if it exist; and i call upon gentlemen to point it out. why do it, then? it may be considered a concession; and certainly manifests that disposition which we feel to settle all the points of difference in agitation betwixt us. and here i beg leave to say that, according to the most explicit declarations of the british minister, you would not give the smallest umbrage by pursuing that course. on this subject mr. b. quoted a speech of mr. stevens in the british parliament. if we were to be governed by reference to expressions which existed in that country of our partiality to france, it did appear to him that this speech was entitled to weight, because it justified the course proposed by the bill, and stated a position which the british government admitted was all that could be required from a neutral state. from this speech it appeared that placing the two belligerents on an equal footing was all that was required. did not this bill completely come up to their wishes? did it not interdict all trade with france under the most severe and heavy penalties? mr. b. said he did not wish it to be understood that he would shape his conduct by the wishes of the british ministry; but, as it had been said that the bill was somewhat hostile to that country, he had quoted the speech of a ministerial member to show that no such inference could be drawn. the same person, in his speech, also states, said mr. b., that the reason why our offer in august last was not accepted, was, that, if it had been accepted, such was the situation of the law, that a commerce might always be carried on with the enemy; that, through the ports in europe, her enemy might be as efficiently supplied as if the embargo did not exist in relation to him. but, sir, what is now the state of things? if it is possible to operate on france by commercial restrictions, let me ask if this bill will not accomplish that object? let me ask if an american vessel under it can go to any port of france? it not only cuts off direct intercourse, but prohibits the importation of the products of france; and any attempt to carry on a circuitous commerce must be ineffectual, inasmuch as the produce will be liable to seizure when it comes into the ports of the united states. if, according to the ideas of the british government itself, this state of things be a sufficient resistance to france, let me ask of gentlemen how they can infer a partiality to france? what more can you do? if you exclude the armed vessels of france, though it may display a disposition to injure her, i defy any gentleman to show that it can, in the smallest degree, coerce or affect her. let me call the attention of gentlemen to the present situation of europe. if accounts lately received are to be credited, we may calculate on the universal control of the french emperor over the ports of europe. is it to our advantage to be excluded from the trade of the continent? is it not known that all the surplus product of the agriculture of this country finds its vent on the continent of europe? is it not known that, of the whole of our tobacco, seven out of eight parts are consumed on the continent? that of our cotton, at least one-half finds its market there? does not flour find a great proportion of its consumption on the continent? this cannot be denied. then, let me ask of gentlemen, whether it be so much to our advantage to exclude this trade; and, if not, why we should take a step which can do france no injury, but which may, and probably would, be made a pretext for cutting off so valuable a part of our trade? with respect to partiality to france, let me call upon the gentleman from virginia, or any other, to show if, from the conduct of the united states, and such thing can be inferred. look at our relative situation. have we opened our ports to her traders? have we renewed commercial intercourse with her? let me ask, which have we placed in the best situation, france or england? every gentleman must answer--england. whilst she gets all our commerce, her enemy is wholly excluded from any participation in it. another argument has been used against discrimination, viz: that france has no public armed ships. if this is the case, gentlemen need not be alarmed; for, if they cannot come here, we need not be afraid of their resentment, because we will not admit them. but we know that her cruisers can steal out of their ports, go into foreign seas, and destroy our trade in spite of the ships of great britain. if an american vessel has british property on board, or has been spoken by a british cruiser, a french public armed vessel is bound to make prize of her. this being the case, let us for a moment consider the subject as respects ourselves. our feelings ought to be for ourselves and our country. here is a nation having public ships, having a right to come into your ports. does it comport with our honor and dignity to admit into our ports and harbors the very vessels destroying our commerce? not to go into an inquiry what has been the fact heretofore, but what may be now--if you pass a law that a french frigate may come into your waters and partake of your hospitalities, where is the obligation that it may not take advantage of the opportunity to make its prey more sure by watching it in port and then going out and entrapping it? if, from the intoxication of the man who rules the destinies of the nations of europe, he does not feel disposed to treat with us on terms of reciprocity, that circumstance should have no effect on our measures. but the question on that point is no doubt already settled; time sufficient has been allowed for the vessel to go and receive an answer to the instruction sent to our minister. i certainly would so far respect myself as to fulfil what i conceive to be good faith toward both, without respect to the wish or dictation of either. as to the amount of produce sent to the continent, it cannot be great. some few may have adventured there on desperate voyages; but that there is much property in jeopardy, i cannot believe, for france is known to be, in respect to mercantile property, the lion's den, easy of access, but impossible to return. those, therefore, who have risked their property must have been extremely rash. if the french government would do us justice, i should be glad; if not, we must abide by the consequences. we must not do improper things because they will not do us justice. it is proper that we should assert what we conceive to be our rights. i believe, however, that the question of peace with france will not turn on this bill. i believe the point to be already settled. if it be not, and the exclusion of french armed vessels would be an impediment to it, the same objection would be valid against the whole bill. mr. holland asked the indulgence of the house whilst he stated a few reasons why he should vote for the amendment under consideration. it had been asked whether it was consistent with the honor of this nation to admit french ships within our waters. mr. h. said he would answer, that, as things now stood, he did not consider it consistent with our honor and dignity so to do; and the reason why was, that that government had done sundry injurious acts towards this nation for which it had not made reparation, nor even intimated an intention of doing so. he therefore answered that it was inconsistent to admit the vessels of france within our waters. it was in consequence of injuries which they had done, according to my conception, that i voted for their exclusion. i was not influenced to vote for the prohibition of the ships of france from coming into our waters by any desire to produce an equality in our relations with the belligerents. it was no impression of that kind that influenced my vote; and yet i voted that french ships of war should not come into our waters. it was not the opinions of editors of newspapers, or the clamors of individuals, that influenced my vote, and i hope they never will. i think that every gentleman, on taking his seat in this house, should consider himself beyond suspicion. the only question for consideration of the members of this house, when a measure is presented to them, is the expediency of it; and on that ground alone i voted for the exclusion of french ships or of british ships. i was chiefly influenced to vote for the exclusion of british armed ships by the variety of acts committed in our waters, and the great disposition which she had shown to commit the most wanton acts of treachery. i can say for myself that my conduct was only partially influenced by the acts of british officers within our waters; i had in view a variety of other acts committed against the rights of the people of this country. supposing the affair of the chesapeake to have been authorized, i never wish to see the british ships of war within our waters, till they recede from the right of impressment. i wish the british government to know that it was the determination of the major part of the citizens of the united states to resist her till she surrendered that right. i think it was a sacrifice of the dignity of the united states to receive british vessels so long as they committed those acts. it was therefore that i voted to exclude them. it is said, by the gentleman last up, that we are at peace with great britain. does it follow, from that, that they are entitled to all the rights of hospitality that one nation could possibly show to another? certainly not. we ought yet to hold up some indication that we are not perfectly reconciled to them. when they abandon the outrageous principles which govern that nation with respect to neutrals; when they abandon the practice of impressment; when they make restitution for spoliations of our trade; we will hold the hand of fellowship to them. it is not enough for me to hear the british minister say that an envoy extraordinary is to come out and settle all differences. i have heard something like this long ago. i heard that a minister was to be sent out to make reparation for the affair of the chesapeake. we have experience on this subject. have we forgot that every thing which accompanied that mission was evidence that the british government was not sincere, and that it did not intend to accommodate? when i see an abandonment by great britain of the principles destructive to neutrality, i can consent to admit that nation to the rights of hospitality. mr. johnson observed, that, to say any thing on this subject, after the time which had been already consumed, and the speeches which had been made, was contrary to a rule which he had laid down for his own conduct. but his excuse would be found in the introduction into the house of a proposition, which, it was said, proposed to place us on a neutral ground. nothing, said mr. j., is dearer to me than neutrality as to our foreign relations; but, the bill submitted to the house by the committee of which i had the honor to constitute one, and which is the same with that now before us, so far from being in hostility to great britain, and partiality to france, i contend, is a concession to great britain, at the same time that i admit that it is not hostility to france. the admission of the belligerent vessels into our waters, so far from being hostility to great britain, is concession. i bottom the remark upon the fact, that, at this moment, as many and as heavy causes of complaint exist unsettled between this government and great britain, as between this government and that of france. if then, the same causes exist to exclude from our waters the vessels of both, i ask whether the admission of both will not be an actual benefit and concession to great britain, and a nominal benefit to france? and, still, it is to go forth to the nation that we are about to commit an act which will sink the nation, from the elevated situation in which it is now placed by our former measures! i hope that we shall continue to convince the world that the united states of america are incapable of other than neutral conduct. is it a fact, that greater injuries exist from france than from great britain? what injuries have been received from france? have they been committed within our waters? has our hospitality been violated and our officers insulted in our very ports by the vessels of france? or is her hostility merely commercial? it is of the latter description. is it not admitted that we may lawfully exclude or admit the vessels of both belligerents? if you admit the vessels of one nation with whom you have cause of difference, and exclude those of another nation with whom you have only the same cause of difference, i ask whether you do not commit the dignity of the nation, and jeopardize its peace? i will put this question to gentlemen: what has britain done which would require a discrimination as to her public vessels? she has rescinded her orders in council. and what have we done in return? have we done nothing? has great britain held out the hand of friendship, and have we refused to meet her? has she withdrawn her orders in council, and have we insisted on a continuance of our commercial restrictions? i have understood that she has done nothing but rescinded her orders in council, and we have renewed intercourse with her therefore. i am more astonished at the proposal to discriminate, when we see that, at this moment, orders are in existence blockading countries to which your merchants have, long ago, taken out clearances, in violation of stipulations which britain had proposed to us. when she has violated our rights, i am more astonished that gentlemen should wish to go beyond this letter of the law. and, let the consequence be what it may, it would result to the benefit of this nation that we should not be influenced by idle fears of imaginary dangers. my better judgment tells me we should exclude the armed vessels of both nations; but the general sentiment appears to be against it. it is asked of us, why admit the vessels of france, whilst injuries which she has done us are unatoned for? and, i ask, sir, why, then, admit the vessels of england standing in the same relation to us? i only make these remarks as going to show that we ought to be strictly neutral. if, sir, you wish to take part in the broils of europe, embody your men, and send them over to the disposal of england at once, and let her send them to spain or austria. but, if you would remain neutral, either admit or exclude the armed vessels, as you would armies, of both belligerents. i had thought, sir, not only from the acts of our government, but from conversing with gentlemen, that we hailed the present as an auspicious moment, as a political jubilee; i had thought that we had been on the verge of war with the two most powerful nations of the earth, but that our situation was changed, and that, at the same moment we now offer the only asylum to the victims of european wars. and are you now about again to jeopardize the peace of this nation, without any cause whatever? the exclusion of french and british armed vessels at the last session, may be taken on this ground. it was a defensive war, not only for the injuries we had received, but in expectation of actual hostility. has it occurred? no, sir. would you have excluded british vessels since , for taking the vessels engaged in your lawful trade, and for impressing your seamen? you did not do it; and it was not for that alone that you did it at the last session, but for other causes, which have nearly or quite disappeared. i have done, sir. i shall not vote for any proposition which makes a difference between france and great britain; not that i am afraid of the conscripts of napoleon, or the navy of george iii. but i cannot consent to adopt a course which will again obscure with clouds our political horizon. mr. smilie said, that if he now took up five minutes of the time of the house, he could not excuse it to himself; and he should not have risen, but to explain the reasons for the course which he should take. as to the amendment, to that he could never agree. the question which the legislature often had to decide, was not what was best, but what is practicable. now, he thought it a happy circumstance that parties in the other house had united on this subject. however we may differ as to local affairs, said he, i think it good policy, if it can be done without a sacrifice of principle, to meet in concert on measures of external relations. what may be the effect, if you introduce either of these two principles into this bill? we know that, if this bill does not go to the senate till to-morrow, if amended, a single member of the senate can, according to their rules, prevent the bill from passing altogether. my opinion is, that it is our duty to pass the bill in its present form. if any material alteration be made in the bill, i believe it will not pass. if it does not, all that has taken place between this country and great britain is at an end. and i hope that this reason will induce gentlemen to permit the question to be taken. mr. j. g. jackson said he had intended, before the day had so far progressed, to have explained to the house the motives by which he was actuated in relation to the bill. he said he would still take the liberty of stating to the few members present, (the house being very thin,) why he offered the amendment to the amendment. it will be recollected, said mr. j., that the other day i stated that a construction had been given to the law contemplated to be re-enacted by the bill on the table, which, notwithstanding the renewal of intercourse, excluded armed vessels from our waters; and, for the purpose of doing away completely that construction, i moved an amendment which, gentlemen conceiving it unnecessary, i withdrew. if gentlemen are correct in the opinion which they advanced, and which induced me to withdraw that motion, they cannot, consistently, vote for the amendment of my colleague providing an exception to a provision which the bill does not contain. where is the necessity of a proviso if the law does not bear such a construction? is the executive to infer from the proviso that something exists in the law which the friends of the proviso declare does not exist? the amendment proposed by my colleague provides for the admission of the armed vessels of those nations with whom commercial intercourse _shall_ have been (not _has_ been) permitted. are you, by this phraseology, about to devolve upon the president a discretionary power, holding the scale of national honor in one hand, and the injury and atonement in the other, to decide which nation shall be thus favored, when it is conceded on all hands that the admission of the armed vessels of one nation and the exclusion of those of the other, is an act _ipso facto_ of hostility? gentlemen have observed that there ought to be an exclusion of french and admission of english armed ships, and that any other course would be an acquiescence in the views of "_sister_ france," and hostility to england. this language, sir, does not help the cause which the gentleman advocates. what must be the effect of such insinuations? they must excite feelings which, i am happy to say, have not been displayed on this floor during the session. might it not be retorted, as a natural consequence, that gentlemen who wish to admit british and exclude french ships, and thus serve the interest of england, are desirous of subserving the views of _mother_ britain? the attachment to _sister_ france on the one hand, is about as great as the attachment to _mother_ britain on the other. i believe it has been emphatically declared to the nation that we would not go to war for existing differences. if, however, gentlemen, since the last session, have so materially altered their ideas of the policy proper in relation to one belligerent, let us go to war openly; i am not for using the stiletto, or for stabbing in the dark. the interdict of british armed vessels from entering our ports was not on account of the affair of the chesapeake only. it is unnecessary now to repeat the cause which led to it. if gentlemen will turn to the letter of mr. madison to mr. rose, they will find the causes detailed. since that time other injuries have been committed; and it has been justly observed that the burning the impetueux was an insult to the sovereignty of this nation scarcely less than the affair of the chesapeake. if we permit hostility from one belligerent to another within our territory, we become party to the war, as we do, by admitting the enemy even to pass through our territory to attack another nation. it is in vain to say that a nation preserves a neutral attitude, when it permits one of the belligerents repeatedly to violate its sovereignty. if there be as much injury unatoned on the part of britain as on the part of france, then a discrimination will be a departure from the ground which we took last session, that both should be excluded. and the president had no power over that part of the law. inasmuch as we know that great britain has the command of the ocean, and that a french ship of war cannot, without a miracle, escape across the atlantic, we, in fact, by the operation of the bill as it came from the senate, admit english and exclude french ships. we throw open our ports and admit the thousand ships of britain, without opening our eyes to the consequences which have heretofore resulted from so doing. and shall we now refuse admission to the vessels of france? it is indeed difficult to say what led to their exclusion; for it has been with truth observed that the non-intercourse bill had not an advocate in the house. it was something like throwing all our discordant opinions into one crucible, and after fusion, extracting what was expected to be gold, but which all called dross. when gentlemen speak of their zeal to maintain the ground taken last winter, i beg of them to recollect their own speeches, from which it will be found that the bill was so obnoxious to them that they would not even extend its operation to the next winter, and that it was with difficulty that it was extended to the end of the present session. gentlemen ask, has there not been a satisfactory adjustment of our differences with great britain? i deny it. what is the expression of the british envoy on which gentlemen rely, and on which they are about to sit down quietly under the vine and fig tree? "in the mean time, with a view to contribute to the attainment of so desirable an object, his majesty would be willing to withdraw his orders," &c. in the mean time, still persisting in the principle of taxing our exports, a right denied even to us by the constitution. it is to be hung up _in terrorem_, to be let loose upon us hereafter, if we shall not do every thing which is required of us. there is a marked cautious style of language in this letter, which shows that great britain in fact has promised nothing. she does not say that she will repeal or revoke her orders, but that in the mean time she will withdraw them; and, sir, in the mean time she has withdrawn them, and substituted other orders or proclamations equally obnoxious. this is reason sufficient for not going beyond the letter of the agreement; which however i will consent to do, by admitting instead of excluding british armed vessels. when mr. j. g. jackson concluded, mr. sheffey, in order to obtain a direct question on his own amendment, adopted mr. jackson's rider to it, as a part of his own motion, and called for a division of the question, taking it first on his own amendment as first moved. some doubt arising whether it was correct thus to act, according to the rules of the house, mr. macon produced a precedent in which he had himself done the same in the case of a motion for the repeal of the second section of the sedition act, nine or ten years ago. mr. taylor said that, as the house had decided that they would not discriminate between the admission of british and french public vessels, he wished to try the question on the exclusion of both. he made a motion having in view that object; which was decided without debate, fifteen for it, one hundred against it, being a majority of eighty-five against the exclusion, at this time, of the public vessels of both belligerents. mr. montgomery observed that the decision of the courts of the united states had been that, after a law had expired, they had dismissed all suits pending for the recovery of penalties incurred under the act. he conceived that this bill should have a saving clause, that penalties and forfeitures incurred under it, should be recoverable and distributable after the act itself had expired. he therefore moved an amendment to that effect. tuesday, june . _non-intercourse._ the bill to revive and amend certain parts of the act "interdicting commercial intercourse between the united states and great britain and france, and their dependencies, and for other purposes," was read the third time. mr. pickman hoped that he should be excused for making a few observations at this stage of the bill, not having before partaken of the debate. he said he felt a strong objection to the bill, because it admitted french vessels into our ports and harbors. gentlemen had asked why a discrimination should be made. he answered, that the reasons for this conduct were to his mind very plain. he had considered the outrage on the chesapeake as a gross violation of our rights and of the law of nations, and he believed no one had felt more indignation at it than he did. but that was now atoned for. i consider (said mr. p.) that the orders in council are repealed; that great britain has stipulated to send on an envoy with instructions to negotiate for a settlement of all differences. i consider these things as done, because i consider the faith of the british nation as solemnly pledged to do them; for, if it had not been, the united states would not have been justified in taking the attitude which we have taken. it has been said, that since the arrangement here has taken place, great britain has modified her orders in council in a most exceptionable manner. i admit that this modification was posterior in point of date to the arrangement here; that is to say, that the proclamation of the president of the united states was issued on the th, and that the orders were modified on the th of april; yet, in strict propriety, the new orders may be said to have issued before the arrangement, because it was before it was known. viewing the subject in this light, i do not believe that the modification of the orders in council did proceed from the arrangement here; and i now declare that if such modification as has been made is to be considered as rescinding the orders, according to the stipulation made with mr. erskine, i should consider it a mere mockery. i do, however, consider it in a very different light, and have no doubt that the government of great britain will adopt such modification of their orders as they have stipulated to do. these are my ideas, and on this ground i did and do still believe that we ought to have made a discrimination, because i consider one nation to have complied with the conditions of the non-intercourse act, whilst the other has not varied its position. mr. macon said he was against admitting the armed vessels of either belligerents into our waters. he would place our foreign relations precisely in the state in which the president had left them, saying neither yea or nay on the subject of their armed vessels, leaving it where it had been left by both the parties to the late arrangement. he should have been glad that the same disposition had been manifested towards us by france as by great britain; but because there had not he would do nothing towards her to prevent it. some gentlemen had conceived that an indiscriminate admission would be more advantageous to france than to great britain. mr. m. said he did not agree with gentlemen in this; for great britain had canada and her west india islands, to which she was in the habit of sending out vessels; whilst france, having no possessions on the american coast, had no occasion for our hospitality. mr. m. said he sincerely hoped that we should now act, as we had heretofore done, so as to give to neither of the belligerents cause to charge us with partiality. he was decidedly of opinion that we ought to leave both nations in the same state as they were left by the president's proclamation. he had no doubt that great britain would send a minister to negotiate. but what was left, as to her, for the surrender or repeal of which she had any anxiety? nothing. as to france, she would have no shipping at sea, so long as the war lasted in europe, unless an event took place which he hoped would not. you give france a right to enter your waters, said he, and take away any inducement she might have had to rescind her decrees. i believe the passage of the bill will extend the difficulties of the nation. i know it is not a very pleasant thing to be opposed to the evident sentiment of a majority of the house; but it is the bounden duty of those who think as i do to vote, as i shall, against the bill. mr. taylor said it appeared to be desired on all hands that nothing should be done by the house to embarrass the negotiation; and he presumed that the majority, in the different stages of this bill, had been actuated by that wish. if, said mr. t., i could see the present measure in the light in which its friends appear to view it, i certainly should be in favor of it. but, when it is recollected that your legislative acts have been held out to your fellow-citizens and to foreign nations, promising a perseverance in our restrictive measures against such nation as shall continue to oppress our commerce by her unlawful edicts, i consider our faith as pledged to the nation, that, according to the recession of one belligerent, or perseverance of the other, we were to shape our course. the gentleman from virginia aimed a side blow at those who, in the discussion of this subject, had spoken of the ground which we have taken. on the effects supposed to be produced by the non-intercourse, i had a right to say _we_. the sense of the house was taken distinctly as to a repeal of the embargo, on the first report of the committee of foreign relations. it was then that the principle was decided, and it was that act which was taken hold of across the atlantic, and made the ground of the instructions which came out by mr. oakley to the british envoy here, and on which the arrangement did take place. now, though the gentleman seems unwilling that any part of the house should say _we_, i vindicate the claim which i have to use it. in fact, i would claim for the mover of the original proposition to this house for the interdiction of armed vessels, the gentleman from north carolina, (mr. macon,) the merit of the late negotiation, if it attach anywhere. but i am not willing to carry on the copartnership. i will not now say _we_. i, who voted for the motion going to give power to the president of the united states to issue letters of marque and reprisal against that nation which persevered in its edicts after the other had withdrawn them, am not willing, on the passage of this bill, to say _we_, as by it you admit instead of continuing the exclusion against armed vessels, where, instead of a recession, injuries have rather been added. when gentlemen are asked why they have admitted french vessels, in our present situation in relation to france, after the temper displayed and the votes given at the last session on the subject, theirs must be a feeling in which i would not participate, and therefore i will not say "_we_." mr. dana observed that, by the journals of the senate, it appeared that this bill had been unanimously passed by that body. this unanimous vote of the senate might be regarded as a consideration to operate very strongly on the minds of members of the house, as respected the propriety of adopting the present bill; it certainly must have weight in favor of a measure, when it was found that men differing widely in political opinions joined in voting for it. i, said mr. d., have myself very strongly felt the force of this consideration. but you know, sir, that the rules of proceeding and order established in this house do not admit of our urging in debate the conduct of the senate of the united states as a motive for deciding the opinion of this house. why is it out of order? because the excellence of our constitution is, that the legislature shall consist of two houses, each of which shall act on its own ideas of propriety. if it is not proper to mention the conduct of the senate in debate, it is not proper to suffer it to overthrow our opinions. in this view i feel myself bound, with all due deference to the senate, to examine this subject for myself. i cannot but feel the weight of that vote; but i cannot forget that the bill respecting the writ of habeas corpus was once passed in that house, and rejected unanimously in this, without being permitted to be read a second time. on examining this bill, sir, i do not find that its various provisions appear to constitute one whole, to conform with any system of policy, or to be consistent with the principles of any man in this country. it is certainly not the course which i would have chosen; it is not consistent with the course marked out at the last session of congress. i was certainly not in favor of the embargo; i disapproved of that system; and when i saw the non-intercourse system, i considered that as retaining the embargo principle, but not with so much precision. i consider this bill to be receding from a weak position. if the embargo was a decisive measure, it ought to have been taken more completely at the outset than it was. but it failed. the non-intercourse was abandoning one part and retaining another of the system. this bill was abandoning a part of the non-intercourse system and retaining a part. when i look at it, i see nothing in it at which any portion of american citizens can rejoice or be proud of; nothing of a firm, dignified, matured, sound, consistent policy, to be maintained on general principles against all the world. am i then required to vote for a measure of this kind? if, with my friend from massachusetts (mr. quincy) i could suppose that voting for a system which i did not like would destroy it, i should vote for it. for, if i understand him, he dislikes the whole, and therefore will vote for this part of it. the whole would die at the end of this session; but to show his anxiety for its death he must keep it alive till the next session of congress. i was very much pleased with a great part of his remarks; i approbated his premises, but his conclusions appeared to be directly the reverse of the proper result. but as he is a gentleman of strong powers of mind, he may well be able to draw a conclusion which i cannot. gentlemen have alluded to the declarations of the emperor of france in relation to his decrees. when bonaparte talks of the freedom of the seas, does he mean the same idea which we attach to these words when we use them? when he talks of the principles of maritime law, does he mean the same as we? on the subject of maritime law, has he not stated things which before were unheard of? certainly, sir. on the contrary, i have always understood the claims of the united states as a neutral nation to be, not to assert new pretensions, but to assert such claims as they may think reasonable with respect to principle, and such as have been formerly admitted in practice. with respect to the bill before you, there has been one argument used, and an imposing one certainly, provided that it appeared completely founded in fact. it is said this bill is considered as comporting with the views of the executive government of the country; and that the executive has acted so well in conducting the preliminary arrangement for removing certain obstacles to negotiation, that on the whole we ought to assist his administration. on this subject, sir, i have to observe that we are utterly without official evidence on this point. we have no evidence whatever, of an official nature, that this bill comports with the executive views. if we have, it is to me unknown. we have not, during the present session, had any report in detail from the committee of foreign relations. if that committee had made a report, stating facts and reasoning as the basis of the bill, i might consider that committee as having consulted the executive of the country, and as having adopted its disposition as the basis of its proceedings. but, as we have no such thing, are we to suppose that there are certain gentlemen in the house who are organs of communication of the executive wishes? have we any other evidence of the disposition of the executive in relation to this bill than that certain gentlemen are in favor of it? if, on this subject, the opinion of the executive should properly decide our judgment, ought we not to have had some official exposition of the views of the government? as we have no such information, we are to examine whether this bill comports with the arrangement made with great britain. but, as to that, i beg leave to be deemed as not considering myself pledged by that arrangement merely. as to myself, as an american, i am by no means gratified that we should contend with one nation because another does us justice. a stipulation of that kind i should consider as degrading to my country. in my remarks therefore, i disclaim owing any thing for any boon which great britain may have given us, because i do not consider it as a boon that they have ceased to injure us. but in the face of the world such declarations have been formally made by the congress of the united states. the fact is known to ourselves, to our countrymen, to such portions of the foreign world as may take an interest in our concerns. and in comparing this bill with those declarations, will it be possible to conceive that we are consistent? when you had differences with both the belligerents, what was your language? you talked as though you would throw the gauntlet to the globe, as though you would stretch out your arm and smite the world. when an adjustment is made with one of those powers, what is your language? really, sir, the difficulty under which the government formerly labored was said to be this: that if we went to war with both nations.--[mr. d. quoted a part of the report of the committee of foreign relations of last session on this subject.] i consider this part of the report, said he, as proceeding upon assumptions which are erroneous, and founded upon grounds untenable and inaccurate. but as to this report, which appeared to receive the approbation of a majority of the members of the house, it seems to be clear from it, that were it not that you were so equally wronged by both belligerents, and that both persisted, you certainly would have engaged in war with one; but that, as a treble war was rather a difficult plan, it was best to continue the restrictive system. what is the declaration made to the british minister at this place, by our secretary of state, on this subject? is it pretended to enter into any stipulations with great britain as to our conduct? no, sir; it is that our measures are adopted on the principle that the government would assert the rights of our country against any power on the globe, without any reference to pledges. on this point i would call the attention of the house to a sentence which is the most extraordinary surely that ever was put together. and, unless it be a dash of the pen, like that of the brush of the painter who painted at one dash a perfect horse, it must have been the elaborate labor of twenty-four hours; in either case not detracting from the skill of the author of it. the sentence is as follows: "as it appears at the same time, that, in making this offer, his britannic majesty derives a motive from the equality, now existing, in the relations of the united states, with the two belligerent powers, the president owes it to the occasion, and to himself, to let it be understood, that this equality is a result, incident to a state of things, growing out of distinct considerations." if any mortal, from the depth of his knowledge, can specifically tell what this means, he may pass for an oracle. it proceeds upon this idea: that in making our arrangements at the last session we did not mean, as respects saying that whatever nation insulted us we would resent it, to please great britain alone, but equally to please any other nation whatever. if the saying this was an annunciation by our government to the british government, that in making this arrangement we are not making any stipulation in respect to france, but you and the world may know that whoever invades our rights shall meet with resistance, adequate to the crisis, if the government can find means to accomplish it. if the paragraph be thus considered, we may respect the declaration itself, and admire the skill with which it is so worded as to convey nothing offensive in the expression. in this view, i am willing to admit it, because it conduces to the reputation of the government and of the secretary of state, who in this business appears to have conducted with the frankness of a man of talents, and the manner of a practical man of sense. i consider this bill as not corresponding with the resolutions of last session, as not corresponding with the general sentiment in regard to the non-intercourse law when it passed; nor with the general sentiment fairly to be collected from the correspondence of our officers with the british minister. if it be asked, what other system would be proper, i acknowledge it to be a question of difficulty. but, for myself, i think i would say that i would prefer an armed neutrality; not such a one as distinguished the confederacy in the baltic, not one to assert new pretensions; but one temperate in its claims, specific in its object. and i could really wish that in the present state of the world we should turn our attention to a system of policy which shall be founded on general principles, and at least say what are the rights which as neutrals we claim, and what the pretensions to which as neutrals we will submit; and if our legislation were of that character, we never should be embarrassed as we are. we pass a law that if edicts of the belligerents be revoked or modified, trade shall be renewed. now, the edicts then in existence might be revoked, and others substituted, and the law would be complied with. the whole system has been constituted too much in reference to particular cases. but i have one further objection to this bill, viz: that by it you do permit trade with french trading vessels, thus. there is no prohibition to the furnishing supplies to french vessels. the french vessels, going to sea, go armed and under the authority of their government; and coming into the ports of this country may be supplied with any thing they wish without an infraction of the letter of the law. let any public armed vessel come into the waters of the united states, and they may purchase whatever they please. there is no law to prohibit it, nor any authority placed in the government of the united states to prevent them from purchasing. the state of the case now is, that your vessels shall not be cleared out to carry any thing to france, but your boats and every thing that sails may be employed to carry provisions to french armed ships in your harbors, and they may be completely loaded. if this be the intention of gentlemen, i have nothing further to say; if it be not their intention, they will have in this case, as they have had in others, a very great experience of the disadvantages of undertaking to chop up law. from these general views of the subject, sir, i am opposed to the passage of the law. messrs. pitkin and quincy stated their reasons for voting against the bill. and on the question, "shall the bill pass?" it was decided in the affirmative--yeas , nays , as follows: yeas.--lemuel j. alston, willis alston, jr., william anderson, ezekiel bacon, william w. bibb, adam boyd, john brown, robert brown, william a. burwell, joseph calhoun, john campbell, howell cobb, james cochran, orchard cook, james cox, richard cutts, john dawson, joseph desha, james emott, j. w. eppes, william findlay, jonathan fisk, gideon gardner, thomas gholson, jr., peterson goodwyn, thomas r. gold, daniel heister, william helms, jacob hufty, robert jenkins, richard m. johnson, william kennedy, herman knickerbacker, robert le roy livingston, john love, matthew lyon, aaron lyle, robert marion, vincent matthews, samuel mckee, william milnor, john montgomery, nicholas r. moore, thomas newton, joseph pearson, john porter, peter b. porter, josiah quincy, john rea, of pennsylvania, john rhea of tennessee, matthias richards, john roane, ebenezer sage, thomas sammons, daniel sheffey, john smilie, george smith, samuel smith, henry southard, john stanley, james stephenson, jacob swoope, john thompson, uri tracy, nicholas van dyke, archibald van horne, robert weakley, laban wheaton, robert whitehill, ezekiel whitman, robert witherspoon, and richard wynn. nays.--daniel blaisdell, john c. chamberlain, s. w. dana, john davenport, jr., william ely, william hale, nathaniel a. haven, james holland, jonathan h. hubbard, edward st. loe livermore, nathaniel macon, timothy pitkin, jr., john ross, richard stanford, and john taylor. absent, members. wednesday, june . _emigrants from cuba._ on motion of mr. marion, the house resolved itself into a committee of the whole on the bill for the remission of certain fines and penalties. [this bill provides for the remission of penalties incurred by the captains and owners of vessels which have been compelled to take on board emigrants from cuba, with their slaves, the landing of the latter in the united states having, under present laws, forfeited the vessels and cargoes and fined the persons concerned.] mr. marion observed that he had, a day or two ago, presented petitions from persons bringing in slaves, amongst which were some documents, one of which was the opinion of the district court of south carolina, by which it appeared that, if the bill passed in the present shape, no relief would be afforded by it; for, it had not appeared on the trial that the _slaves_ were forcibly expelled from the island, though the _owners_ were. he therefore moved an amendment to include slaves owned by persons who were expelled from the island.--motion agreed to without opposition. mr. m. then moved to add a proviso: "_and provided, also_, that such slaves shall have been brought in at the same time as their owners, respectively."--agreed to. mr. ross observed that a former act on the subject of the importation of slaves said, that it should not be lawful to bring into the united states any negro, mulatto, or person of color, with intention to sell the same or hold them as slaves. the present case appeared to him to be one in direct violation of that law. under the act of , it had become the duty of the court to examine whether it was the intention of the parties to infringe or violate the laws. after a fair examination by a court, under a desire to relieve those interested, and a failure of every attempt to show that they were compelled to take on board these slaves, was the house about to sit in judgment and reverse the decision? mr. r. said that provision was also made in the bill as to slaves that may hereafter arrive in the united states, giving a power to the president of the united states, at his discretion, to set aside the law. what reason could there be for enacting this law, if the principles of the law of were correct? if it was intended, by a side blow, to repeal that law, he had rather see it done at once; and not, whilst in appearance we had such a law, to give the president a dispensing power over it. it was said that the persons concerned in bringing them in were distressed. how distressed? only because they could not prove they were compelled to bring them into the country. mr. r. said he did not wish to irritate the feelings of gentlemen from any portion of the union, but he was sorry to see a bill introduced to unsettle what he conceived to be a valuable provision, enacted some sessions ago. mr. newton said he felt as much repugnance as the gentleman from pennsylvania to touch that law; but, if the gentleman would consider that this was a case of a peculiar nature, attended with singular circumstances, he would withdraw his objection. and he verily believed, that had the legislature foreseen what had taken place, they would certainly have inserted a provision to meet the case which had occurred. let it be recollected, said he, that the unfortunate frenchmen driven on our coast, were some time ago driven from st. domingo, and were obliged to take shelter at cuba. since the commencement of the war in spain, cuba has almost witnessed the same scenes as st. domingo. these people were forced to leave the island in distress, and take what portion of property they could collect. they could not go to france, because no vessels of that country were permitted to touch at the island of cuba, neither could they go to the french islands in the west indies. there was no country open to them but america. the american captains, then, were forced to take the french on board, and with them, a few body servants; and, under the former law, these vessels are seized, and liable to forfeiture, our merchants to suffer the loss of vessel and cargo, and the poor emigrants to lose all their little property. let it be recollected that the law of does not interfere with the state rights on the subject. this bill only goes so far as to remit all fines and penalties incurred by the captains of vessels, and release the property which would otherwise be condemned, and relieve the perfectly innocent merchants who would otherwise suffer. let us say to these unfortunates, as dido to �neas, when he was exiled from troy: "i have suffered misfortune myself, and therefore know how to extend the hand of relief to others." mr. marion said that if the gentleman from pennsylvania (mr. ross) thought that he had a wish or intention to increase the number of slaves, he was much mistaken. the laws of south carolina prohibited the bringing these slaves, or any other, into the state; yet they had been brought there, and the persons bringing them there must give security that they would have them carried out of the state. now, by the non-intercourse law, the state was prevented from sending them away; they would, of course, remain here till the law permitted them to be sent off, for they could go nowhere but to france and her dependencies, france being at war with all the rest of the world. mr. m. said that there were several captains now in jail under sentence of court for having brought those people into the country; he submitted to the house whether, under the circumstances of the case, the captains had not good reason to suppose that they would not be subject to the penalty of the law. the law prohibiting the importation of slaves was of a highly penal nature, and different from all other laws of that nature, having no clause in it giving a power of remission of penalties; and this bill was guarded in such a manner that no evil could arise. mr. macon said it was certainly true that the southern country wanted no more slaves. the sole object of the bill was to get them away. however desirous the people might be to hold that property, there could be no fear of their wanting them from the west indies. mr. montgomery said it was peculiarly necessary to pass this bill to get rid of the immense number of slaves brought into new orleans; for every one must know that they were not wanted there. they were too numerous to continue there, and this bill was intended to make provision for their exportation. mr. newton produced a letter from the collector of new orleans on this subject. mr. taylor said it never could have been the intention or spirit of the law of to increase our population in free blacks. it was not to set free the people of this description that the law had been passed, but to prevent them from being brought here at all. for even in pennsylvania he had no doubt the gentleman would be content to have no further population of this sort. mr. t. said that he knew that in the southern states there was an extreme aversion to receiving an additional free black population. the intent of this bill, so far from being in hostility to the law quoted by the gentleman from pennsylvania, was in furtherance of it. it was to remove them out of the country. mr. ross said that it was strange that the house should have a bill before it contemplating the removal of a certain description of persons out of the country, when nothing of the kind appeared on the face of it. if that was its intention, there should be a condition that the persons bringing in these slaves should carry them out again. mr. newton observed that unless this law passed, the inevitable consequence must be that the negroes must remain here. he did not want them, they brought principles which it was known would not promote our interest or happiness. the committee then rose and reported the bill. mr. newton moved a new section for the relief of foster and girard, of new york, whose ship had been forfeited under the law prohibiting the importation of slaves.--agreed to. and the bill was ordered to a third reading, and subsequently passed without opposition. _evening session._ mr. root reported that the committee had waited on the president according to order, who was pleased to say that he had no further communications to make. about nine o'clock, all the bills having been enrolled and signed, a motion was made to adjourn, and carried; and the speaker, after wishing the members of the house a pleasant journey home, and a happy meeting with their friends, adjourned the house to the fourth monday in november next. footnotes: [ ] list of representatives. _new hampshire._--daniel blaisdell, john c. chamberlain, william hale, nathaniel a. haven, james wilson. _massachusetts._--ezekiel bacon, william baylies, richard cutts, orchard cook, william ely, gideon gardner, barzillai gannett, edward st. loe livermore, benjamin pickman, jr., josiah quincy, ebenezer seaver, samuel taggart, william stedman, jabez upham, joseph b. varnum, laban wheaton, ezekiel whitman. _rhode island._--richard jackson, jr., elisha e. potter. _connecticut._--epaphroditus champion, samuel w. dana, john davenport, jonathan o. mosely, timothy pitkin, jr., lewis b. sturges, benjamin tallmadge. _vermont._--william chamberlin, martin chittenden, jonathan h. hubbard, samuel shaw. _new york._--james emott, jonathan fisk, barent gardenier, thomas e. gold, herman knickerbacker, robert le roy livingston, vincent matthews, john nicholson, gurdon s. mumford, peter b. porter, ebenezer sage, thomas sammons, erastus root, john thompson, uri tracy, killian k. van rensselaer. _pennsylvania._--william anderson, david bard, robert brown, william crawford, william findlay, daniel heister, robert jenkins, aaron lyle, william milnor, john porter, john rea, benjamin say, matthias richards, john ross, george smith, samuel smith, john smilie, robert whitehill. _new jersey._--adam boyd, james cox, william helms, jacob hufty, thomas newbold, henry southard. _delaware._--nicholas van dyke. _maryland._--john brown, john campbell, charles goldsborough, philip barton key, alexander mckim, john montgomery, nicholas r. moore, roger nelson, archibald van horne. _virginia._--burwell bassett, james breckenridge, william a. burwell, matthew clay, john dawson, john w. eppes, thomas gholson, jr., peterson goodwyn, edwin gray, john g. jackson, walter jones, joseph lewis, jr., john love, thomas newton, wilson carey nicholas, john randolph, john roane, daniel sheffey, john smith, james stephenson, jacob swoope. _north carolina._--willis alston, jr., james cochran, meshack franklin, james holland, thomas kenan, william kennedy, archibald mcbride, nathaniel macon, joseph pearson, lemuel sawyer, richard stanford, john stanley. _south carolina._--lemuel j. alston, william butler, joseph calhoun, robert marion, thomas moore, john taylor, robert witherspoon, richard wynn. _georgia._--william w. bibb, howell cobb, dennis smelt, george w. troup. _kentucky._--henry crist, joseph desha, benjamin howard, richard m. johnson, matthew lyon, samuel mckee. _tennessee._--pleasant m. miller, john rhea, robert weakley. _ohio._--jeremiah morrow. _mississippi territory._--george poindexter. _orleans territory._--julian poydras. eleventh congress--second session. begun at the city of washington, november , . proceedings in the senate. monday, november , . conformably to the act passed at the last session, entitled "an act to fix the time for the next meeting of congress," the second session of the eleventh congress commenced this day; and the senate assembled, in their chamber, at the city of washington. present: nicholas gilman, from new hampshire. timothy pickering, from massachusetts. chauncey goodrich, from connecticut. stephen r. bradley and jonathan robinson, from vermont. john lambert, from new jersey. andrew gregg and michael leib, from pennsylvania. william b. giles, from virginia. james turner, from north carolina. thomas sumter and john gaillard, from south carolina. buckner thruston and john pope, from kentucky. return jonathan meigs and stanley griswold, from ohio. the number of senators present not being sufficient to constitute a quorum, the senate adjourned to o'clock to-morrow morning. tuesday, november . the senate assembled--present as yesterday; and obadiah german, from the state of new york; james hillhouse, from the state of connecticut; elisha mathewson, from the state of rhode island; and nahum parker, from the state of new hampshire, severally attended. andrew gregg, president _pro tempore_, resumed the chair. the president communicated a letter from the surveyor of the public buildings, stating the difficulties that have prevented the entire completion of the permanent senate chamber; which letter was read. _ordered_, that the secretary acquaint the house of representatives that a quorum of the senate is assembled, and ready to attend to business. _ordered_, that messrs. gilman and gaillard be a committee on the part of the senate, together with such committee as may be appointed by the house of representatives on their part, to wait on the president of the united states, and notify him that a quorum of the two houses is assembled, and ready to receive any communications that he may be pleased to make to them. _ordered_, that the secretary acquaint the house of representatives therewith. a message from the house of representatives informed the senate that the house have appointed a committee, on their part, jointly with such committee as may be appointed on the part of the senate, to wait on the president of the united states, and notify him that a quorum of the two houses is assembled, and ready to receive any communications that he may be pleased to make to them. _resolved_, that james mathers, sergeant-at-arms and doorkeeper to the senate, be, and he is hereby, authorized to employ one assistant and two horses, for the purpose of performing such services as are usually required by the doorkeeper to the senate; and that the sum of twenty-eight dollars be allowed him weekly for that purpose, to commence with, and remain during the session, and for twenty days after. mr. gilman reported, from the joint committee, that they had waited on the president of the united states, agreeably to order, and that the president of the united states informed the committee that he would make a communication to the two houses to-morrow, at o'clock. wednesday, november . james lloyd, from the state of massachusetts, attended. _president's message._ the following message was received from the president of the united states: _fellow-citizens of the senate, and of the house of representatives_: at the period of our last meeting, i had the satisfaction of communicating an adjustment with one of the principal belligerent nations, highly important in itself, and still more so, as presaging a more extended accommodation. it is with deep concern i am now to inform you, that the favorable prospect has been overclouded by a refusal of the british government to abide by the act of its minister plenipotentiary, and by its ensuing policy towards the united states, as seen through the communications of the minister sent to replace him. whatever pleas may be urged for a disavowal of engagements formed by diplomatic functionaries, in cases where, by the terms of the engagements, a mutual ratification is reserved; or where notice at the time may have been given of a departure from instructions; or, in extraordinary cases, essentially violating the principles of equity; a disavowal could not have been apprehended in a case where no such notice or violation existed; where no such ratification was reserved; and, more especially, where, as is now in proof, an engagement, to be executed, without any such ratification, was contemplated by the instructions given, and where it had, with good faith, been carried into immediate execution on the part of the united states. these considerations not having restrained the british government from disavowing the arrangement, by virtue of which its orders in council were to be revoked, and the event authorizing the renewal of commercial intercourse having thus not taken place, it necessarily became a question of equal urgency and importance, whether the act prohibiting that intercourse was not to be considered as remaining in legal force. this question being, after due deliberation, determined in the affirmative, a proclamation to that effect was issued. it could not but happen, however, that a return to this state of things, from that which had followed an execution of the arrangement by the united states, would involve difficulties. with a view to diminish these as much as possible, the instructions from the secretary of the treasury, now laid before you, were transmitted to the collectors of the several ports. if, in permitting british vessels to depart without giving bonds not to proceed to their own ports, it should appear that the tenor of legal authority has not been strictly pursued, it is to be ascribed to the anxious desire which was felt, that no individuals should be injured by so unforeseen an occurrence: and i rely on the regard of congress for the equitable interests of our own citizens, to adopt whatever further provisions may be found requisite for a general remission of penalties involuntarily incurred. the recall of the disavowed minister having been followed by the appointment of a successor, hopes were indulged that the new mission would contribute to alleviate the disappointment which had been produced, and to remove the causes which had so long embarrassed the good understanding of the two nations. it could not be doubted that it would at least be charged with conciliatory explanations of the step which had been taken, and with proposals to be substituted for the rejected arrangement. reasonable and universal as this expectation was, it also has not been fulfilled. from the first official disclosures of the new minister, it was found that he had received no authority to enter into explanations relative to either branch of the arrangement disavowed, nor any authority to substitute proposals, as to that branch which concerned the british orders in council. and, finally, that his proposals with respect to the other branch, the attack on the frigate chesapeake, were founded on a presumption, repeatedly declared to be inadmissible by the united states, that the first step towards adjustment was due from them; the proposals, at the same time, omitting even a reference to the officer answerable for the murderous aggression, and asserting a claim not less contrary to the british laws and british practice, than to the principles and obligations of the united states. the correspondence between the department of state and this minister will show how unessentially the features presented in its commencement have been varied in its progress. it will show, also, that, forgetting the respect due to all governments, he did not refrain from imputations on this, which required that no further communications should be received from him. the necessity of this step will be made known to his britannic majesty, through the minister plenipotentiary of the united states in london. and it would indicate a want of the confidence due to a government which so well understands and exacts what becomes foreign ministers near it, not to infer that the misconduct of its own representative will be viewed in the same light in which it has been regarded here. the british government will learn, at the same time, that a ready attention will be given to communications, through any channel which may be substituted. it will be happy, if the change in this respect should be accompanied by a favorable revision of the unfriendly policy which has been so long pursued towards the united states. with france, the other belligerent, whose trespasses on our commercial rights have long been the subject of our just remonstrances, the posture of our relations does not correspond with the measures taken on the part of the united states to effect a favorable change. the result of the several communications made to her government, in pursuance of the authorities vested by congress in the executive, is contained in the correspondence of our minister at paris, now laid before you. by some of the other belligerents, although professing just and amicable dispositions, injuries materially affecting our commerce have not been duly controlled or repressed. in these cases, the interpositions deemed proper, on our part, have not been omitted. but, it well deserves the consideration of the legislature, how far both the safety and the honor of the american flag may be consulted, by adequate provisions against that collusive prostitution of it by individuals, unworthy of the american name, which has so much favored the real or pretended suspicions, under which the honest commerce of their fellow-citizens has suffered. in relation to the powers on the coast of barbary, nothing has occurred which is not of a nature rather to inspire confidence than distrust, as to the continuance of the existing amity. with our indian neighbors, the just and benevolent system continued towards them, has also preserved peace, and is more and more advancing habits favorable to their civilization and happiness. from a statement which will be made by the secretary of war, it will be seen that the fortifications on our maritime frontier are, in many of the ports, completed, affording the defence which was contemplated; and that a further time will be required to render complete the works in the harbor of new york, and in some other places. by the enlargement of the works, and the employment of a greater number of hands at the public armories, the supply of small arms, of an improving quality, appears to be annually increasing, at a rate, that, without those made on private contract, may be expected to go far towards providing for the public exigency. the act of congress providing for the equipment of our vessels of war having been fully carried into execution, i refer to the statement of the secretary of the navy for the information which may be proper on that subject. to that statement is added a view of the transfers of appropriations, authorized by the act of the session preceding the last, and of the grounds on which the transfers were made. whatever may be the course of your deliberations on the subject of our military establishments, i should fail in my duty in not recommending to your serious attention the importance of giving to our militia, the great bulwark of our security and resource of our power, an organization the best adapted to eventual situations, for which the united states ought to be prepared. the sums which had been previously accumulated in the treasury, together with the receipts during the year ending on the th of september last, and amounting to more than nine millions of dollars, have enabled us to fulfil all our engagements, and to defray the current expenses of our government, without recurring to any loan. but the insecurity of our commerce, and the consequent diminution of the public revenue, will probably produce a deficiency in the receipts of the ensuing year, for which, and for other details, i refer to the statements which will be transmitted from the treasury. in the state which has been presented of our affairs with the great parties to a disastrous and protracted war, carried on in a mode equally injurious and unjust to the united states as a neutral nation, the wisdom of the national legislature will be again summoned to the important decision on the alternatives before them. that these will be met in a spirit worthy of the councils of a nation conscious both of its rectitude and of its rights, and careful as well of its honor as of its peace, i have an entire confidence. and that the result will be stamped by a unanimity becoming the occasion, and be supported by every portion of our citizens, with a patriotism enlightened and invigorated by experience, ought as little to be doubted. in the midst of the wrongs and vexations experienced from external causes, there is much room for congratulation on the prosperity and happiness flowing from our situation at home. the blessing of health has never been more universal. the fruits of the seasons, though in particular articles and districts short of their usual redundancy, are more than sufficient for our wants and our comforts. the face of our country every where presents the evidence of laudable enterprise, of extensive capital, and of durable improvement. in a cultivation of the materials, and the extension of useful manufactures, more especially in the general application to household fabrics, we behold a rapid diminution of our dependence on foreign supplies. nor is it unworthy of reflection, that this revolution in our pursuits and habits is in no slight degree a consequence of those impolitic and arbitrary edicts, by which the contending nations, in endeavoring, each of them, to obstruct our trade with the other, have so far abridged our means of procuring the productions and manufactures of which our own are now taking the place. recollecting, always, that, for every advantage which may contribute to distinguish our lot from that to which others are doomed by the unhappy spirit of the times, we are indebted to that divine providence whose goodness has been so remarkably extended to this rising nation, it becomes us to cherish a devout gratitude, and to implore, from the same omnipotent source, a blessing on the consultations and measures about to be undertaken for the welfare of our beloved country. james madison. november , . the message and documents therein referred to were read, and five hundred copies of the message, and also five hundred copies of the message together with five hundred copies of the documents, were ordered to be printed for the use of the senate. on motion, by mr. goodrich, _resolved, unanimously_, that the members of the senate, from a sincere desire of showing their respect to the memory of the honorable samuel white, deceased, late a member thereof, will go into mourning for one month, by the usual mode of wearing a crape round the left arm. thursday, november . philip reed, from the state of maryland, attended. john condit, appointed a senator by the legislature of the state of new jersey, in the place of aaron kitchel, resigned, produced his credentials, which were read; and, the oath prescribed by law having been administered to him, he took his seat in the senate. monday, december . richard brent, from the state of virginia, and william h. crawford, from the state of georgia, severally attended. samuel smith, appointed a senator by the legislature of the state of maryland from the th of november, , to the th of march, , produced his credentials, which were read; and the oath prescribed by law having been administered to him, he took his seat in the senate. a message from the house of representatives informed the senate that the house concur in the resolution of the senate of the th of november, for the appointment of chaplains, and have appointed the rev. jesse lee chaplain on their part. tuesday, december . _the british minister._ mr. giles, from the committee appointed on the first instant, reported in part the following resolution; which was read the first time, and passed to the second reading: _resolved, by the senate and house of representatives of the united states of america in congress assembled_, that the expressions contained in the official letter of francis james jackson, minister plenipotentiary of his britannic majesty near the united states, dated the d day of october, , and addressed to mr. smith, secretary of state, conveying the idea, that the executive government of the united states had knowledge that the arrangement lately made by mr. erskine, his predecessor, on behalf of his government, with the government of the united states, was entered into without competent powers on the part of mr. erskine for that purpose, were highly indecorous and insolent; that the repetition of the same intimation in his official letter dated the th of november, , after he was apprised, by the asseveration of the secretary of state, that the executive government had no such knowledge, and that if it had possessed such knowledge such arrangement would not have been entered into on the part of the united states, and after also being officially apprised that such intimation was inadmissible, was still more insolent and affronting; and that, in refusing to receive any further communications from him in consequence of these outrageous and premeditated insults, the executive government has manifested a just regard to its own dignity and honor, as well as to the character and interest of the american people. that the letter signed francis james jackson, headed "circular," dated the th of november, , and published and circulated through the country, is a still more direct and aggravated insult and affront to the american people and their government, as it is evidently an insidious attempt to excite their resentments and distrusts against their own government, by appealing to them, through false or fallacious disguises, against some of its acts; and to excite resentments and divisions amongst the people themselves, which can only be dishonorable to their own characters and ruinous to their own interests; and the congress of the united states do hereby solemnly pledge themselves to the american people and to the world to stand by and support the executive government in its refusal to receive any further communications from the said francis james jackson, and to call into action the whole force of the nation if it should become necessary in consequence of the conduct of the executive government in this respect to repel such insults and to assert and maintain the rights, the honor, and the interests of the united states. _privileges of foreign ministers._ mr. giles, from the same committee, also reported the following bill, which was read and passed to a second reading: a bill to prevent the abuse of the privileges and immunities enjoyed by foreign ministers within the united states. _be it enacted, &c._, that if any foreign ambassador, minister, or other person, entitled to enjoy within the united states the privileges and immunities of a foreign minister, shall have committed, or may hereafter commit, any such act as by the laws and usages of nations would justify the president of the united states in ordering such offending ambassador, minister, or other person as aforesaid, out of the district of columbia, or out of the territories of the united states; or in sending him home to his sovereign, or to some place or territory within his sovereign's jurisdiction; in every such case where the president of the united states shall deem it proper and expedient to exercise his constitutional authority, in either of these respects he shall be, and is hereby authorized and empowered to cause a warrant to be issued and signed by the secretary of state, directed to any civil officer of the united states, authorized to serve process, or any military officer under the authority of the united states, commanding him to provide for and enforce the departure of such ambassador, minister, or other person offending as aforesaid, taking due precautions to avoid improper or unnecessary violence in executing such warrant. and all officers, civil and military, under the authority of the united states, are hereby required and enjoined to be obedient to such warrant. and in case any officer, civil or military, to whom such warrant shall be directed, shall fail, or unreasonably delay to execute the same, every officer so offending shall be deemed guilty of a high misdemeanor, and shall be punished by fine and imprisonment before any court of the united states having cognizance of the offence. _provided_, that the fine shall not exceed ---- dollars, nor the imprisonment be for a longer time than ---- years. mr. giles gave notice that he should call for the consideration of this subject on thursday next. friday, december . _the british minister._ the resolution reported by mr. giles, approving the conduct of the executive in refusing to hold any further communication with mr. jackson, was taken up in the senate as in committee of the whole. the resolution having been read, mr. giles rose, and spoke as follows: mr. president: before i proceed to perform the duties enjoined upon me as chairman of the committee who reported the resolution before you, permit me to express my regret that the consideration of a subject which justly excites so much sensibility should have been delayed, even only one day, on my account; and be assured, sir, that nothing less than an indisposition, sufficient to justify it, would have caused me to have been absent from my place yesterday. perhaps, sir, i owe an apology to the senate at this time for entering into this debate under a state of hoarseness, which must necessarily disqualify me, in some degree, from discharging my duty on the present occasion. but, sir, it is a subject of great consolation to me, to reflect that i am fortunately favored with associates on the committee, either of whom could perform the task i am now engaged in better than myself, and some of whom will certainly do me the favor of correcting any errors i may unintentionally commit, or supplying any omissions i may inadvertently make. although it appears to me that the propriety and urgency of the resolution now under consideration must be strongly addressed, both to the judgment and sensibility of every gentleman who has carefully attended to the distribution of powers under our constitution, and who has also carefully attended to the correspondence which gave rise to the resolution, yet, in a case of so much delicacy, it would naturally be expected, and is a respect due to the senate, from the chairman of the committee, to present to it at least some of the general motives which induced the committee to report the resolution at this time. it is to be observed, mr. president, that our constitution is peculiar in the organization and distribution of its powers; and in no respect is it more peculiar than in the distribution of the particular powers embraced by the resolution. in all other governments known to us, the same department which possesses the power to receive and negotiate with foreign ambassadors and other public ministers, also possesses the power to make war. it has been thought wise in our constitution to separate these powers. with a simplicity of language, and a solidity of wisdom almost peculiar to our constitution, the president is invested with the power to receive ambassadors and other public ministers; thus using the broadest terms in granting this power, without even an attempt at limitation or specification; evidently with a view that all the incidental or consequential powers might flow from this general expression to the department thus invested with this general power. it was easy to foresee (and no doubt the framers of our constitution did foresee) that the multiplicity and diversity of cases which would arise in the course of various diplomatic manoeuvres and negotiations, would set at defiance all attempts to limit or specify the powers of the department, in this respect, to which these powers were confided, and to be exercised on the part of the united states; and, therefore, every attempt of that kind was wisely avoided, leaving to the president to exercise his authority upon his own responsibility, to be regulated by the only established standard amongst nations, to wit: the laws and usages of nations. for, it never can be presumed, sir, that the wise sages who framed our excellent constitution could for a moment have tolerated the idea that the ministers of foreign nations residing near the government of the united states, should possess greater privileges and immunities than the ministers of our government residing near foreign courts. of course, the same laws--to wit, the laws and usages of nations--were left reciprocally to govern in every reciprocal case. but, sir, notwithstanding the president is invested with the power "to receive ambassadors and other public ministers," and, as i think, all other incidental or consequential powers applicable to the various agencies with such ambassadors and other public ministers, yet congress is invested with the power, without limitation or qualification, "to declare war." now, sir, it must be obvious to every understanding, that these several powers are so intimately connected, and may be so dependent upon each other, that the exercise of the power conceded to the president may consequentially involve the necessity of the exercise of the power conceded to congress, as in the case now under consideration. the refusal of the executive to receive any further communications from his britannic majesty's minister, (mr. jackson,) may consequentially involve us in war with great britain; or, in other words, may serve as a pretext for great britain to make war upon us, if she should conceive it her interest to do so, which i think not very improbable. hence arises, in my judgment, the propriety and urgency of expression of the congressional opinion upon this executive act, and a declaration of the congressional will as to the course of conduct congress will pursue under any consequences which may flow from, or possibly be attributed to, this executive act. i conceive, sir, that the expression of this opinion, and the pledge of a solemn declaration, by congress, are due to the people, because the people have the greatest interest in the character of their government; and in no part of its attributes have a deeper interest than in its efficacy to resist and impel injuries and insults from foreign governments. the people, also, are the mediate or immediate electors of congress, and as such have a right to expect and demand that congress will execute all their duties, and will never shrink from their constitutional responsibility in any case; and, last of all, in a case of so high and solemn a character as the one under consideration. this course of conduct is essentially due to the executive. the president ought to know whether, with the indispensable co-operation of congress, he ought to proceed with dignified moderation and intelligence to assert and maintain the rights, the honor, and the interests, of the american people; or whether, for the want of that co-operation, he shall with shame and confusion of face be compelled to retrace his steps, and leave to congress to abandon these high attributes of the nation, and, with their degradation, to record their country's ruin and disgrace. no, sir, it is not possible that an american congress does exist, or can ever exist, that would not spurn from themselves every vestige of an idea that they could be brought, under any circumstances, to perform so degrading and dishonorable a task. it is imperiously demanded by the dignity and candor of congress itself. what, sir, shall the exercise of one of the highest constitutional functions of congress be brought into question, and every individual in the nation engaged in expressing an opinion on it; and shall congress alone stand aloof, for fear of incurring a responsibility imposed on them by the constitution? shall congress stand by as idle spectators, and see a contest before the people, between the president and a foreign minister, and feel no interest and take no share in such an unprecedented scene, especially when one of their highest constitutional functions may be affected by it! no, sir. congress must speak--congress must act. congress never can shrink from its constitutional responsibility. it is due to the dignity--it is demanded from the candor--of congress. above all, sir, it is important to the united states as a nation, that the congressional will should be proclaimed upon this delicate and solemn occasion. it is of importance, it may be of the last importance, to the united states, that great britain should know, before she decides upon this subject, what is the congressional will in relation to it. whether she will be called upon to act against an united, harmonized government and people--or whether she shall have for her prey, a divided people and a discordant government. do you believe, mr. president, that the conduct of great britain would be very different under these different conditions of the people and government of the united states? let me ask you this question, sir: would you not, sir, if you were prime minister of great britain, consulting her interest alone, pursue a very different course of conduct under this different state of things? let every gentleman put the question to himself; and the answer of every one would be the same. why then, sir, do we not unanimously take the ground here which, if we were called upon to act in an opposite hostile character, would most certainly deter us from persevering in that hostile character against the united states? sir, if there had been any doubt upon this subject, our late experience ought to have removed it; for, sir, i have no hesitation in saying, and with pain at heart i shall be compelled to show it in the course of this debate, that, in my judgment, our present embarrassments are too much to be ascribed to our former manifestations of indecision, to our unfortunate dissensions and divisions. sir, whenever i approach this sorrowful and awful subject, my heart feels as if it were bleeding at every pore, when i am compelled to reflect, and to believe, that this our beloved and happy country may shortly become a bleeding victim, from wounds--if not inflicted by the hands of her own sons, at least by their unhappy divisions and dissensions. yes, sir, with a full knowledge of what is past, and strong presages of what is to come, is it not deplorable to be compelled to think, that, in a very few months, perhaps in a still shorter time, american blood must be shed, to repel the hostile spirit of great britain, now rendered too manifest to every understanding; and worse than all, sir, to wash away the stains of our own unfortunate divisions and dissensions; and is it not wonderful, as it is deplorable, that the virtuous and patriotic american people, and sometimes called the most enlightened in the world, with the experience of the horrible consequences, through all ages, of the divisions of a people amongst themselves, should permit themselves from the same cause, to fall a prey to the same inevitable calamities? look, mr. president, through all history, from the first dispute between cain and abel, down to the late disastrous dissensions between the spanish branch of the bourbon dynasty, and find if you can, sir, a single instance of a people who gained any advantage from dissensions among themselves, and especially, sir, when they carried them so far, as to join a foreign against their country's standard! i believe, sir, not one solitary instance of this kind stands recorded. nor is it possible or practicable in any state of human affairs--because in all cases, the foreign interference in the internal concerns of its neighbors is always for its own and never for its neighbor's benefit. with these monitory lessons before our eyes, and a full conviction of their truth upon our hearts, is it not wonderful, that we should voluntarily give up ourselves victims to the same calamities? but, sir, gentlemen may ask, where is the remedy? how can we make a sacrifice of our own opinions? sir, the case is a plain one. let gentlemen exercise their opinions and persevere in their arguments at all times respecting our internal concerns, as well before as after the measures are adopted; let them, respecting our foreign relations, urge their arguments with a zeal proportioned to the magnitude of the subject; they will be pleasurably received, and respectfully considered; but after the government has taken its attitude against a foreign nation, it would be going too far to desert its standard, and to join that of the enemy. it is then time for opinion to pause and reflect, whether any consequence can be worse, or more disgraceful, than joining a foreign against its country's standard? whether it would not be better, more patriotic, more virtuous, to support your country even in a supposed unwise course of policy, than to join a foreign standard, and use it to correct and change the course of policy thus disapproved? sir, in a contest between your own and a foreign nation, it never can be wrong to join the standard of your own country; nor right to join the standard of your enemy. then, sir, here is a rallying point. it is a plain and obvious one. no understanding can mistake it. no heart can disapprove it. it is our own government. let that be the rallying point. there never can be a more propitious moment than the present for casting into oblivion all former irritations and dissensions. there can never be a plainer case presented to the human understanding. there never were more urgent considerations in favor of the course recommended. whether we respect their repulsive effects upon british hostility or their harmonizing effects among ourselves, they appear to me to be equally strong and persuasive. may i not then, sir, indulge the pleasing hope, that the resolution before you will be received as the signal of unanimity in congress, and joyfully hailed in that character through the whole of this great and extended country? sir, does it not manifest a strange perverseness in the human character, for us to observe that, when it is perfectly at our option, we should choose to distress and injure ourselves by irritations and resentments, rather than delight ourselves with union and harmony and mutual good offices? especially, sir, when the latter choice would command the respect, if not excite the alarm of our enemy. for, sir, do you believe that if great britain saw the strong arm of this nation stretched out to oppose her unjust spirit of hostility, guided in all its operations by one undivided will, she would so readily encounter its powerful influence, as if she saw it paralyzed in all its efforts from the want of a unity of will and action? no, sir, we undervalue our energies and importance, if we were to suppose that her conduct would be the same in both of these situations; or that she is at all indifferent to the course of conduct now to be pursued by us. let us then all unite, sir, in this proposition, and disappoint her mistaken calculations upon her influence in this country. i verily believe, that union is all that is wanting to appease her hostile spirit towards us. but perhaps, sir, every gentleman present will admit, and it appears to me that no human being can deny, that if the facts stated in the resolution be supported by the correspondence upon which it is founded, that then every gentleman would readily assent to the resolution. but, sir, it is possible, although it appears to be scarcely possible, that some gentlemen may doubt whether the facts stated in the resolution be supported by the correspondence or not. this i admit is a fair though delicate inquiry, and i will therefore immediately proceed to the examination of that question--and i beg the most critical attention of the senate in the course of the investigation. i will now proceed, mr. president, to inquire whether the facts stated in the resolution are supported by the correspondence upon which it is founded? in performing this task, i propose to read the whole of the correspondence which i conceive bears any material relation to the subject of the resolution, and no other; although the whole may not be entitled to, nor receive any animadversions from me, yet as my sole object is to get at the true exposition and meaning of the correspondence, if i should unfortunately omit, misconceive, or misinterpret any material part of it, i shall have the consolation to reflect, that, by presenting the whole, the means of my correction in either case will be presented to the senate and the world, if the observations i propose now to make should ever find their way out of the walls of this chamber. i shall also present this correspondence in its responsive order, which will be found to be indispensable to the due comprehension of some of its most essential parts. permit me, then, sir, to call your attention first to the letter of mr. jackson to mr. smith, dated the th october, , pages , , of the printed documents. for, sir, although this letter is not mentioned in the resolution, yet it furnishes the original offensive insinuations, and is referred to and reiterated in the letter of the d october, which is noticed in the resolution, and therefore the offensive expressions of the letter of the th are entitled to, and shall receive, the most accurate and critical attention and analysis. [here the exceptionable passages were read.] now, sir, after thus stripping this extraordinary sentence of all its disguises, and translating it into plain english, to what does it amount? why, sir, certainly and unquestionably to this:--you, mr. smith, secretary of state of the united states, have entered into an arrangement with my predecessor, mr. erskine, under such scandalous and dishonorable circumstances as could only lead to a disavowal of it; and you yourself were so well apprised of them, and so conscious of their inevitable operation, as even to think it unreasonable to complain of the disavowal. i defy gentlemen to give to this offensive paragraph any other fair and correct interpretation; and if this be the fair and correct one, can you conceive, sir, of an insult more outrageous and premeditated? and will you not be surprised, sir, to be told that the insult does not stop here; that, as offensive as it already appears, it does not stop here; that it is still further aggravated? yes, sir, mr. jackson, not content with making this extraordinary and insolent communication in its ordinary form, underscores the words "could only," containing the point or gist of the insult, thus aggravating the act, either by the distrust thus manifested of mr. smith's mental perceptions; or by letting mr. smith know, that the insult was known to, and intentionally given by mr. jackson; for the underscoring could not have had any other object in view. in this impudent act of underscoring, mr. jackson reminds me, sir, of a set of miserable, conceited pretenders to wit, who, having great confidence in the acuteness of their own mental perceptions, and very little in that of their hearers, will kindly and compassionately explain the point of wit to their hearers, before they approach it in the recital of the story, to prepare and qualify the hearers' minds to join in the laugh intended to be produced by it. yes, sir, this underscoring was as much as saying to mr. smith, i am afraid that i have so nicely wrapped this insult in the veil of mysteries and disguises, that it may escape observation from the obtuseness of your mental perception, but am determined it shall not. i have underscored it for you; you shall look at it; you shall know that i, mr. jackson, understand and mean it. i have wrapped it up in mystery and disguise to be sure, but i will rend the veil, i will make an eyelet hole for you, that you shall look through, and behold the insult in all its front of grossness and impudence. but, sir, if mr. jackson had then known, as well as he now does, the dignified character, the high sensibility, and the correct intelligence of the secretary of state, he would have found it more honorable to himself to have spared his insult altogether, or at least might have spared himself the trouble of underscoring. sir, i conceive this insult so gross and outrageous that i am surprised how the executive government could reconcile it to itself to proceed another step in the communications with mr. jackson. certainly, sir, proceeding beyond this point manifests on the part of the executive great moderation, great forbearance, and a condescension scarcely excusable; and, sir, i am perfectly sure, that nothing could have induced it to consider such gross intimations argumentatively, but the ardent and sincere desire which has invariably actuated the present, as well as the last, administration to preserve peace and cultivate harmony and a good understanding with great britain. and, sir, we shall see, in the course of this investigation, how it has been requited for this, as well as for all former acts of moderation, forbearance, and condescension. let me now, sir, select out of the quotation another extraordinary expression, for a few animadversions, in the following words: "but the very act of substitution evidently shows that those original conditions were in fact very explicitly communicated to you, and by you, of course, laid before the president for his consideration." it is somewhat curious to observe what stress mr. jackson placed through the whole of his correspondence, upon what he is here pleased to term "the very act of substitution," and demonstrates to every impartial mind how slender are the pretexts with which mr. jackson is furnished, to apologize for, or rather to equivocate about the disavowal of mr. erskine's arrangement. let me, therefore, inquire, in what this horrible act of substitution, as mr. jackson would make it appear, consists? why, sir, simply in this: that the three inadmissible conditions mentioned in one of the despatches to mr. erskine, were verbally communicated to mr. smith, and insisted upon by mr. erskine, and that mr. smith, in rejecting those conditions verbally, and with great propriety and frankness, told mr. erskine what conditions he might obtain. mr. erskine, upon a review of all his letters of instructions, finding it impossible to obtain his, the three conditions first proposed, conceived himself fully empowered to propose those which possibly might have been intimated to him by mr. smith in conversation; and the arrangement was accordingly and promptly made between these two gentlemen on the part of their respective governments. and now let me ask you, sir, what is there dishonorable, unfair, or even unusual in this proceeding, which is the whole amount of mr. jackson's "very act of substitution." sir, it is very easy to see, that mr. jackson keeps his ingenuity constantly upon the stretch respecting this very act of substitution, evidently with a view of producing an impression by the insinuation, that the executive government of the united states had more than its share in that arrangement, and, in fact, was concerned in a dishonorable and scandalous combination with his predecessor, mr. erskine, for the purpose of producing the arrangement. which insinuation, if true, must represent mr. erskine as a fool, a knave, or a traitor, or all three, and our executive government still further lost to every honorable sentiment, and utterly destitute of even the most ordinary understanding. an insinuation so insidious and affronting, cannot fail to excite the indignation and contempt of every patriotic heart in america. but, fortunately for the executive government, mr. erskine's previous explanation of this point to our government strips the transaction of every shadow of a shade of a doubt, of which mr. jackson perhaps was not apprised at the time he was employed in devising the gross insinuation. yes, sir, this was one miserable effort of mr. jackson to reproach our executive government for an act, for which it merited, and universally received, the sincere applause and grateful thanks of the american people. it restored the executive, as it ought to have done, to universal confidence, and utterly rooted out every doubt of its sincerity in its diplomatic intercourse with great britain, under which some of our misled and mistaken citizens, for a while, unfortunately labored. for the moment terms were proposed on the part of great britain, which could, with honor or propriety, be accepted by the united states: they were frankly and promptly accepted by the executive, regardless of all consequences from any other quarter. sir, there is another part of this quotation which requires a few animadversions. i allude, sir, to the first solemn declaration made to this government by mr. jackson, respecting the despatch, in which the conditions were prescribed to mr. erskine. it is in the following words: [here mr. giles read the paragraphs from mr. jackson's letter, which charged that mr. erskine had shown to mr. smith, secretary of state, the inadmissible conditions laid down in mr. canning's despatch; and then read mr. erskine's statement that he had not shown that part of mr. canning's despatch, and giving the reason why he had not done it.] it is to be observed from this quotation, in the first place, sir, that mr. erskine explicitly disavows ever having shown the executive government the despatch containing the inadmissible conditions; and thus entirely exculpates it from the odious imputation attempted to be thrown on it by mr. jackson, and for this respectful forbearance to our government, he is certainly entitled to the applause of his own. in the next place, mr. erskine explicitly states that the despatch in question contained but one part of his instructions, and that he thought that, from the spirit at least of his several letters of instructions, he was fully authorized to make the arrangement he had done. and i think there is very little doubt but he had--that mr. erskine still thinks so, there can be no doubt--for he nowhere says he is now convinced that his powers were incompetent--he only says, that the disavowal by his majesty is a painful proof to him, that he had formed an erroneous judgment of his majesty's views and the intentions of his instructions. whether or not he had formed an erroneous view of his majesty's views, or the intention of his instructions, i imagine, will depend very much upon the point of time to which the judgment he had formed is referable. if it be referred to the time of mr. oakley's mission, i am inclined to think he had neither formed an erroneous judgment of his majesty's views, nor the intentions of his instructions; but, if he refers to the time of the disavowal, then i think it pretty certain, he had formed an erroneous judgment of both--for i have no doubt but his majesty's views at least had completely changed between these two periods of time, and the real cause of this change, and of the disavowal itself, is to be looked for in the occurrences which took place, both in europe and in the united states, during that interval. no, sir, the want of powers on the part of mr. erskine is not the true cause of the disavowal. i will now venture to conjecture the true cause, and, if it be the right one, the case will be a plain one, and all equivocations in the explanations rendered unnecessary. to do this, sir, i must call your attention to the state of events in europe and in the united states, at these different periods of time. mr. oakley's mission was immediately after the british government was apprised of the precipitate retreat of sir john moore's army from spain, and the fortune escape of the remains of it from corunna. the affairs of spain, which had before excited such high expectations in the british cabinet, were given up as hopeless, &c. contemporaneously with a knowledge of these events, the british government was also informed of the measures of resistance against her outrageous aggressions, contemplated by congress; which she then believed would certainly be carried into effect, &c. such was the state of things at the time of sending the despatches by mr. oakley. at the time of the disavowal, a new coalition had been formed, austria had boldly entered into the war against france, and the spaniards had been animated into further efforts at resistance, which excited new hopes of success, &c. in this country, too, sir--it pains my heart to be compelled to recite the circumstances--our contemplated measures of resistance had been relaxed, and the whole country exhibited such scenes of divisions and disaffections as paralyzed in some degree the movements of the government. i wish, sir, i could throw a shade of oblivion over these unfortunate scenes, or recollect them only as they furnish the strongest argument. indeed, sir, they point with an infallible index to the course it now becomes us to pursue. yes, sir, it is to these changes in the state of things, you are to look for the real causes of the disavowal, and not to the want of competent instructions on the part of mr. erskine; and it would have been more dignified on the part of the british government to have told us so at once. she would then have said to us, the state of things is changed; at the time of giving the instructions, i was depressed from a combination of untoward events; i am now flushed with new hopes of elevation and of triumph. besides, you have convinced me that you are untrue to yourselves--that you will shrink from the assertion and support of your own rights--if you will not, i am not bound to respect them, &c. i was then down, i am now up, and therefore i cannot grant you, in a spirit of triumph, what i solemnly promised in a spirit of despondency--i now find this the most favorable moment for establishing my favorite doctrine of the despotism of the ocean; and i cannot, and will not deprive myself of the advantage merely to avoid the imputation of bad faith. yes, sir, this would have been a much more correct and dignified course on the part of great britain than the miserable effort made by mr. canning in devising an ingenious mental retort, for converting the bad faith of his own government, in the disavowal of the arrangement, into a reproach upon ours, for the circumstances under which that arrangement was pretended to have been made. it is true, sir, that in the one case there would have been an admission of _mala fides_, which is basely attempted to be avoided by a miserable subterfuge in the other; but, then the british cabinet would have had the consolation of having told the truth, taken the responsibility upon themselves and set us at defiance; and we should have been left to our own remedy, with a perfect understanding of the case. she would, also, have had the plea of necessity, the old-fashioned plea of tyrants, and, indeed, of everybody else, who has no better; but this is not mr. canning's mode of doing business; he chooses to act by tricks and contrivances; and, in the case of the disavowal, by a mental retort, flowing solely from his own visionary mental conceits, without a fact or pretext for its support. mr. president, i am told that mr. canning is a professed punster. but, sir, i would not condescend to make the observation here, had he not, after heaping upon us, during the whole of his administration, every injury and insult in his power, at the close of it placed us in a ludicrous situation by imposing on us an obligation, in a grave and serious concern to the nation, of expounding his equivoques, and unriddling his riddles. i really feel some condescension in being compelled, in my place, to hunt out for his and mr. jackson's meaning, through a transition of sentences, a collocation of words, and a shifting of verbiage. and indulge me, sir, with remarking, that i conceive the situation of a nation never can be more disastrous, calamitous, and lamentable, than when its great and serious affairs are placed in the hands of a parcel of punsters. for, sir, men of minds of that description are too much employed in the pleasing amusement of looking out for coruscations of wit and sentiment, to have any leisure for the more dull and unpleasurable business of observing and marking the great occurrences in human affairs, and of devising means of giving them a direction favorable to their own views, or to their country's interests. no, sir, this is too dull and plodding a pursuit for men of such light, flitting, brilliant imaginations, and if ever they unfortunately undertake it, they soon find the woful misapplication of talents. if, sir, any illustration were wanting of the correctness of these observations, it could nowhere be found better than in an attentive review of the historical events which occurred during the late british administration--the administration of the energetic, the brilliant, the sarcastic, the facetious, the joking mr. canning. he has carried his joking propensities far indeed. it may be truly said he jests at scars indeed--at scars of the blackest disgrace and ruin inflicted upon his bleeding country--upon a great nation, which probably would have received, and certainly merited, a better fate, if it had fortunately placed its destinies in better hands. sir, it appears to me, that all the military enterprises during his whole administration, from the abominable attack on copenhagen, down to the last expedition against the islands of zealand, were nothing more than belligerent puns and conundrums. it has been constantly announced that some grand, secret expedition was on hand, and each succeeding one grander than the preceding, until the last expedition to walcheren, which was the grandest of all; and, when the secret really came out, it appeared either that the object was abominable or contemptible, and the means of executing even the contemptible object, upon experiment, were generally found incompetent. yes, sir, probably these enterprises have cost the british nation the lives of fifty thousand brave officers and soldiers, and i will not undertake to count the millions of dollars. sir, the same little-minded course of policy has also been uniformly manifested during the same time against the united states; and in no respect more than in the disavowal of mr. erskine's arrangement--in avoiding to avow the real motives for it--and in the uncandid attempt to convert the bad faith of the british government into a reproach upon our own; and this was to be done by an ingenious mental device, prettily conceived by mr. canning, and adroitly executed by mr. jackson, who, if not equal to mr. canning in the mysterious art of punning, i think can be very little way behind his prototype in the art of equivoques. sir, the disavowal, in my judgment, was not for the want of competent powers. too great a share of the real cause of the disavowal, unfortunately, is attributable to ourselves, and now is the moment to relieve ourselves from the imputation. sir, it is painful for me to be so often compelled to question the candor of any gentleman, particularly one clothed with the high functions of minister plenipotentiary of his britannic majesty; but permit me to ask you, sir, how it is possible for mr. jackson not to conceive that offence would be taken at his offensive insinuations after mr. smith's letter of the st of november, telling him in strong and decisive terms that offence had been taken at them? or how can mr. jackson reconcile it to himself to say that in adhering to these gross insinuations, he did not intend to give offence? let me ask you, sir, what else he did, or could intend? for my part, i can see nothing else that he could either rationally intend or expect. here then, sir, is another false or fallacious disguise thrown out before the people of the united states, as will always be the case in every appeal to them, calculated, or evidently intended, to excite their resentments and distrusts against their own government. now, sir, upon the most critical review of this exposition, is there a single gentleman present, who is not prepared to say, that the facts stated in the resolution are fully justified by the correspondence? and if they be, sir, what inducement can possibly prevent unanimity on the present occasion? surely those, who wish peace with great britain, will find unanimity upon this occasion the most likely to deter from war; and surely, sir, every gentleman must feel and see that the declarations contained in the resolution are imperiously due to the dignity and honor of our own government, as well as to our respect for the people and ourselves. sir, what would be the effect of passing by unnoticed these gross and insidious insults to both the people and government? why, sir, foreign ministers would begin to conceive, that an appeal to the people was amongst the most sacred of their privileges and immunities. the frequency of them already is almost sufficient to establish and sanctify the rule. the cases of genet, yrujo, the publication of mr. canning's letter in one of the boston newspapers, &c., never received sufficient animadversions from congress; and if this most aggravated case of all should pass over unnoticed, i should not be surprised to see mr. jackson during the present winter set himself up as a british president in new york, contesting the point of jurisdiction before the people, with the american president at washington; whilst congress, regardless of their own constitutional powers, &c., should stand by and behold the extraordinary scene in a state of perfect neutrality. sir, is it possible that congress can so far forget their duties to the people and their respect for themselves? independently of the obvious propriety of this proceeding in itself, have we, sir, no examples of the course of conduct recommended by the resolution? let me remind you, sir, of the case of count de palm in the british parliament. in that case, sir, the count de palm presented a memorial to the british king by the express order of his government, complaining of the misrepresentation of facts made in the king's speech to parliament, which complaint the british historians admit was well founded. after presenting the memorial, he caused it to be published and circulated through the country, etc. what, sir, was the conduct of the british parliament and nation upon that occasion? sir, the parliament unanimously entered into resolutions expressing the highest indignation at the insolent procedure; and presented an address to his majesty requesting him to order the count de palm out of the country immediately. sir, i will not trouble the senate with reading the proceedings of the house of commons upon this memorable occasion; because i presented them to the senate last winter in the case of the publication of mr. canning's letter in the boston paper, and i, therefore, presume they are now fresh in the recollection of every gentleman. and what, sir, was the conduct of the opposition in the british house of commons, when their king and country were insulted by a foreign minister? did they hold back, did they attempt to paralyze the proceedings of their government in resenting this conduct and retrieving its wounded honor and dignity? no, sir, they were englishmen, and felt the indignity to themselves! they were patriots, and could not see their government and nation insulted with indifference! they stepped forward, sir, and were the first to move the resolution and address. the proceeding was unanimous; and what benefit did the british nation receive from this unanimous and prompt proceeding? why, sir, from the year to the present time, the insult has not, i believe, been repeated, and probably never will again. sir, how honorable, how patriotic, was this course of conduct to the british opposition! how honorable and laudable would be its imitation here! especially, sir, when union is all that is wanting to make us happy and victorious. why then, sir, should we not have union, when it is so easy and efficacious a remedy for all our difficulties? sir, the nation expects it; the nation has a right to demand it. may i not then hope, sir, that the hitherto dominant spirit of party will now yield to an occasion, so obvious, so urgent, so honorable! sir, i cannot express to you the pleasure i should feel at my heart, if i could see all irritations banished, and harmony and mutual good will universally pervading all political scenes and all social intercourse. that the present occasion may be improved to this desirable end, is the most fervent prayer of one, who, in the present delicate, interesting crisis of the nation, feels a devotion for his country beyond every thing else on this side of heaven! after mr. giles concluded, the question was taken on the passage of the resolution to a third reading. there were twenty-four members present, besides the president _pro tem._; of whom twenty voted in favor of it. it was ordered to be read a third time on monday next. monday, december . mr. gilman, from the committee, reported the resolution relating to the official correspondence between the secretary of state and francis j. jackson, minister plenipotentiary of his britannic majesty, correctly engrossed; and the resolution was read the third time. on the question, shall this resolution pass? it was determined in the affirmative--yeas , nays , as follows: yeas.--messrs. bradley, brent, condit, crawford, gaillard, german, giles, gilman, gregg, griswold, lambert, leib, mathewson, meigs, parker, pope, reed, smith of maryland, sumter, and turner. nays.--messrs. goodrich, hillhouse, lloyd, and pickering. monday, december . john smith, from the state of new york, attended. thursday, december . joseph anderson, from the state of tennessee, attended. tuesday, december . jesse franklin, from the state of north carolina, attended. thursday, december . charles tait, appointed a senator by the legislature of the state of georgia, in the place of john milledge, resigned, produced his credentials; which were read, and, the oath prescribed by law having been administered to him, he took his seat in the senate. tuesday, january , . james a. bayard, from the state of delaware, attended. thursday, january . jenkin whiteside, from the state of tennessee, attended. friday, january . alexander campbell, appointed a senator by the legislature of the state of ohio, in place of edward tiffin, resigned; and christopher g. champlin, appointed a senator by the legislature of the state of rhode island, in the place of francis malbone, deceased; severally produced their credentials, which were read. and the oath prescribed by law having been administered to them, they took their seats in the senate. tuesday, january . _naval armament._ the senate resumed the third reading of the bill authorizing the fitting out, officering, and manning, the frigates belonging to the united states. thursday, february . the president communicated a letter from the governor of the state of kentucky, enclosing a certificate of the appointment of henry clay a senator of the united states, in place of buckner thruston, resigned. and the certificate was read, and ordered to lie on file. monday, february . henry clay, appointed a senator by the legislature of the state of kentucky, in the place of buckner thruston, attended, and the oath prescribed by law having been administered to him, he took his seat in the senate. thursday, february . _non-intercourse._ mr. gilman, from the committee, reported the amendments to the bill, entitled "an act respecting the commercial intercourse between the united states and great britain and france, and for other purposes," correctly engrossed; and the bill was read the third time as amended. mr. clay.--mr. president: at all times embarrassed when i have ventured to address you, it is with peculiar diffidence i rise on this occasion. the profound respect i have been taught to entertain for this body, my conscious inadequacy to discuss, as it deserves, the question before you, the magnitude of that question, and the recent seat i have taken in this house, are too well calculated to appall, and would impel me to silence if any other member would assume the task i propose attempting. but, sir, when the regular troops of this house, disciplined as they are in the great affairs of this nation, are inactive at their posts, it becomes the duty of its raw militia, however lately enlisted, to step forth in defence of the honor and independence of the country. i voted yesterday against the amendment offered by the gentleman from maryland, because, while that vote did not pledge me for the ultimate passage of the bill, it would have allowed me to give it my support if no better proposition was tendered. i do not like the bill as sent from the house of representatives. it was a crazy vessel, shattered and leaky; but it afforded some shelter, bad as it was. it was opposition to the aggressive edicts of the belligerents. taken from us without a substitute, we are left defenceless, naked, and exposed to all the rage and violence of the storm. sir, have we not been for years contending against the tyranny of the ocean? has not congress solemnly pledged itself to the world not to surrender our rights? and has not the nation at large in all its capacities of meetings of the people, state, and general government, resolved to maintain at all hazards our maritime independence? your whole circle of commercial restrictions, including the non-importation, embargo, and non-intercourse acts, had in view an opposition to the offensive measures of the belligerents, so justly complained of by us. they presented _resistance_--the _peaceful_ resistance of the law. when this is abandoned without effect, i am for resistance by the _sword_. no man in the nation wants peace more than i; but i prefer the troubled ocean of war, demanded by the honor and independence of the country, with all its calamities and desolation, to the tranquil and putrescent pool of ignominious peace. if we can accommodate our differences with one of the belligerents only, i should prefer that one to be britain; but if with neither, and we are forced into a selection of our enemy, then am i for war with britain, because i believe her prior in aggression, and her injuries and insults to us were atrocious in character. i shall not attempt to exhibit an account between the belligerents of mercantile spoliations inflicted and menaced. on that point we have just cause of war with both. britain stands pre-eminent in her outrage on us, by her violation of the sacred personal rights of american freemen, in the arbitrary and lawless imprisonment of our seamen, the attack on the chesapeake--the murder, sir. i will not dwell on the long catalogue of our wrongs and disgrace, which has been repeated until the sensibility of the nation is benumbed by the dishonorable detail. but we are asked for the means of carrying on the war, and those who oppose it triumphantly appeal to the vacant vaults of the treasury. with the unimpaired credit of the government invigorated by a faithful observance of public engagements, and a rapid extinction of the debt of the land, with the boundless territories in the west presenting a safe pledge for reimbursement of loans to any extent, is it not astonishing that despondency itself should disparage the resources of this country? you have, sir, i am credibly informed, in the city and vicinity of new orleans alone, public property sufficient to extinguish the celebrated deficit in the secretary's report. and are we to regard as nothing the patriotic offer so often made by the states, to spend their last cent, and risk their last drop of blood, in the preservation of our neutral privileges? or, are we to be governed by the low, grovelling parsimony of the counting room, and to cast up the actual pence in the drawer before we assert our inestimable rights? it is said, however, that no object is attainable by war with great britain. in its fortunes, we are to estimate not only the benefit to be derived to ourselves, but the injury to be done the enemy. the conquest of canada is in your power. i trust i shall not be deemed presumptuous when i state that i verily believe that the militia of kentucky are alone competent to place montreal and upper canada at your feet. is it nothing to the british nation; is it nothing to the pride of her monarch, to have the last of the immense north american possessions held by him in the commencement of his reign wrested from his dominion? is it nothing to us to extinguish the torch that lights up savage warfare? is it nothing to acquire the entire fur trade connected with that country, and to destroy the temptation and the opportunity of violating your revenue and other laws? war with great britain will deprive her of those supplies of raw materials and provisions which she now obtains from this country. it is alleged that the non-intercourse law, constantly evaded, is incapable of execution. war will be a non-intercourse, admitting of but partial elusion. the pressure upon her, contemplated by your restrictive laws, will then be completely realized. she will not have the game, as she will if you press this bill without an efficient system, entirely in her own hands. the enterprise and valor of our maritime brethren will participate in the spoils of capture. another effect of war will be, the reproduction and cherishing of a commercial spirit amongst us. is there no danger that we shall become enervated by the spirit of avarice, unfortunately so predominant? i do not wish to see that diffusive military character, which, pervading the whole nation, might possibly eventuate in the aggrandizement of some ambitious chief, by prostrating the liberties of the country. but a certain portion of military ardor (and that is what i desire) is essential to the protection of the country. the withered arm and wrinkled brow of the illustrious founders of our freedom are melancholy indications that they will shortly be removed from us. their deeds of glory and renown will then be felt only through the cold medium of the historic page. we shall want the presence and living example of a new race of heroes to supply their places, and to animate us to preserve inviolate what they achieved. am i counting too much on the valor of my countrymen, when i indulge the hope, that, if we are forced into war, the american hero now lives, who, upon the walls of quebec, imitating his glorious example, will avenge the fall of the immortal montgomery? but we shall, at least, gain the approbation of our own hearts. if we surrender without a struggle to maintain our rights, we forfeit the respect of the world, and (what is worse) of ourselves. we are often reminded that the british navy constitutes the only barrier between us and universal dominion. when resistance to britain is submission to france, i protest against the castigation of our colonial infancy being applied in the independent manhood of america. i am willing, sir, to dispense with the parental tenderness of the british navy. i cannot subscribe to british slavery upon the water, that we may escape french subjugation on land. i should feel myself humbled, as an american citizen, if we had to depend upon any foreign power to uphold our independence; and i am persuaded that our own resources, properly directed, are fully adequate to our defence. i am therefore for resisting oppression, by whomsoever attempted against us, whether maritime or territorial. considering then that the bill as amended in this house, in furnishing no substitute for the law of non-intercourse, which it repeals, nor the proposition of the other house, intended to take its place, is a total dereliction of all opposition to the edicts of the belligerents, i cannot vote for it in its present form. i move a recommitment of the bill to supply this defect. what ought to be the substitute, i confess i have not satisfied myself--not expecting that it would fall to my lot to make you this motion. the committee, however, can deliberate upon the subject, and propose one. i would suggest two for consideration--either a total non-importation, which our laws can doubtless enforce, or to arm our merchantmen, and authorize convoys. a day may be fixed, allowing sufficient time for the last effort of the negotiation. that failing, our merchants then to be permitted to arm, and to receive all the protection by convoys which the public vessels can give. this latter measure may lead to war, but it is not war. our neutral rights are violated by the belligerents. each places our commerce under restrictions, not warranted by the law of nations. we must then submit, or protect it. whilst we confine ourselves within the pale of that law, neither has a right to complain. when so armed, and pursuing our lawful destination, let those who attempt to molest us take to themselves the consequences of their own violations. on our part, a war thus produced will be a war of defence. but, mr. president, if, after all our deliberation, it shall be deemed unwise to adopt either of these expedients, perhaps some other unexceptionable course may occur. i insist that you do not return the bill to the other branch of the legislature in its present form. they have sent you a measure, i acknowledge, weak; it is, however, not submission. it professes to oppose (in form, at least) the injustice of foreign governments. what are you about to do--to breathe vigor and energy into the bill? no, sir; you have eradicated all its vitality, and are about to transmit back again the lifeless skeleton. i entreat the senate to recollect the high ground they occupy with the nation. i call upon the members of this house to maintain its character for vigor. i beseech them not to forfeit the esteem of the country. will you set the base example to the other house of an ignominious surrender of our rights, after they have been reproached with imbecility, and you extolled for your energy? but, sir, if we could be so forgetful of ourselves, i trust we shall spare you the disgrace of signing with those hands, so instrumental in the revolution, a bill abandoning some of the most precious rights which it then secured. the motion of mr. clay to recommit the bill, for the purpose of amendment, was determined in the negative--yeas , nays , as follows: yeas.--messrs. bradley, brent, campbell, clay, condit, german, mathewson, meigs, parker, pope, robinson, sumter, and whiteside. nays.-messrs. anderson, bayard, champlin, crawford, franklin, gaillard, gilman, goodrich, gregg, hillhouse, horsey, lambert, leib, lloyd, pickering, reed, smith of maryland, smith of new york, tait, and turner. on the question, shall this bill pass as amended? it was determined in the affirmative--yeas , nays , as follows; yeas.--messrs. anderson, bayard, brent, campbell, champlin, crawford, franklin, gaillard, gilman, goodrich, gregg, hillhouse, horsey, lambert, leib, lloyd, mathewson, meigs, pickering, reed, smith of maryland, smith of new york, sumter, tait, turner, and whiteside. nays.--messrs. bradley, clay, condit, german, parker, pope, and robinson. so it was resolved that this bill pass with amendments. on motion, by mr. smith of maryland, it was agreed that the title of the bill be amended, to read as follows: "an act to interdict the public ships and vessels of france and great britain from the ports and harbors of the united states, and for other purposes." wednesday, february . the vice president being absent, the senate proceded to the election of a president _pro tempore_, as the constitution provides, and the honorable john gaillard was appointed. _ordered_, that the secretary wait on the president of the united states, and acquaint him that the senate have, in the absence of the vice president, elected the honorable john gaillard president of the senate _pro tempore_. tuesday, march . _non-intercourse._ the senate resumed the resolution of the house of representatives disagreeing to their amendments to the bill, entitled "an act respecting the commercial intercourse between the united states and great britain and france, and for other purposes." the question pending, when the senate adjourned yesterday, was on adherence to their amendments to the bill. mr. anderson observed that, when he had made the motion yesterday to _adhere_, he had done it under the impression that it was proper to bring the subject to a conclusion, and because he believed the interest of the country required that it should be finally acted on. he said he was still impressed with that idea; but, paying a deference to the opinion of his friends, desiring also to treat the house of representatives with the respect due to that body, and because it was more conformable to the rules of proceeding generally observed, he withdrew the motion to _adhere_, and moved to _insist_ on the amendments. he said he should, by parliamentary practice, have been fully justified in the motion to adhere before insisting. but it was proper that the two houses of congress should be courteous in their conduct to one another, and the state of affairs at present peculiarly required it; he therefore varied his motion. the question was then taken to _insist_, and carried without a division. mr. anderson then moved to appoint a committee of conference, to confer on the subject with such committee as should be appointed by the house of representatives.--agreed to. messrs. anderson, leib, and smith of maryland, were accordingly appointed on the part of the senate. thursday, march . _demands upon great britain--reprisal._ mr. leib submitted the following resolutions: "_resolved_, that the president of the united states be required to instruct our minister at the court of great britain to demand of the british government an immediate compliance with the arrangement made by their minister, mr. erskine, with this government, comprising atonement for the attack upon the frigate chesapeake, and a relinquishment of the orders in council; and that, on failure to execute that arrangement, our minister be directed forthwith to return to the united states. "_resolved_, that the president of the united states be required to instruct our minister at the court of great britain to demand of the british government an immediate release of all american citizens impressed into the british service, and that, on failure or refusal to make such release, our minister be directed forthwith to return to the united states. "_resolved_, that, on the failure or refusal of the government of great britain, after demand made by our minister to carry into effect the arrangements made by mr. erskine, the british minister, or, on the refusal or failure to release all american citizens impressed into the british service, the president of the united states be authorized to issue letters of marque and reprisal against the ships and vessels belonging to the government and subjects of great britain." monday, march . _withdrawal of resolutions._ mr. leib, on request, had leave to withdraw his resolutions submitted for consideration on the th inst. mr. leib remarked that he had submitted the resolutions upon the table of the senate under a conviction that the honor and interests of the nation required such a course of measures. he believed that it was time to have done with trifling, with a war of words, and with what had been termed _gasconade_; that the cup of expedients had been drained to the last dregs, and that a new mode of warfare became indispensable, to vindicate our honor and assert our rights. his impressions were, that a determined attitude alone could rescue us from the oppressor's wrong, awaken a sense of justice, or lead to that necessary alternative which an injured nation is sometimes obliged to resort to, to avoid greater calamity. he said that he was no friend to war--that peace was the first wish of his heart--but that he could not consent to preserve it by a prostitution of the attributes of freemen. insult, robbery, and murder, cried aloud for justice or for vengeance; and duty requires of him the aid of his feeble efforts to rescue the nation from degradation. he remarked, that the resolutions were directed against one of the belligerents only, and he would assign his reasons for the discrimination, and why he had selected great britain for their object. it had been admitted that we had a right to choose our enemy, and great britain was selected, because she was first in the career of maritime despotism, and had exercised it with unrelenting severity; because she stands alone in the impressment of our citizens, and dooms them to ignominious punishment, or compels them to fight her battles; because the national honor had been vitally wounded, in the attack upon our flag; and because she had heaped outrage upon aggression, and had imbrued her hands in the innocent blood of our citizens. since the resolutions were offered, he further remarked, the aspect of things seemed to be somewhat varied, and a hope is entertained, from the advices received, that a change of attitude may be rendered unnecessary; and that, under present circumstances, such change is inexpedient, and may prove injurious. however skeptical he might be on this subject, he had no wish to embarrass the administration in its negotiations; but, on the contrary, he wished to give full scope to any efforts for an amicable adjustment of our differences. he wished not to throw in a cloud to intercept that glimpse which was supposed to be breaking upon us. his enmities, he said, were national, and would cease with the cause of excitement. under these impressions, and in deference to the judgment of political as well as personal friends, to whose opinions he was always ready to render a willing homage, he said that he would withdraw the resolutions, reserving to himself the right to renew them under other circumstances. monday, march . _non-intercourse._ the senate resumed the consideration of the report of the managers at the conference on their part, on the bill, entitled "an act respecting the commercial intercourse between the united states and great britain and france, and for other purposes." on motion, by mr. clay, to postpone the further consideration thereof until to-morrow, it was determined in the negative. and the question recurring on the original motion-- mr. s. smith said: mr. president, the question before the senate is, to adhere to their amendments made to the bill "respecting the commercial intercourse between the united states and great britain and france." it is with extreme reluctance that i rise on the present occasion. i feel, sensibly feel, the situation in which i place myself by opposing a measure countenanced by the vote in the other house, of almost all those with whom i have been accustomed to act, and by many in the senate, for whose superior judgment and correct opinions i have ever had the highest respect. finding, however, that i differed with those gentlemen, i took the bill to my lodgings, and considered it with a disposition to find in it something that should induce me to give up my own opinion to that expressed by the vote in the other house; but i looked in vain, and i found myself compelled to take the ground of opposition to the bill. in doing this, i must hope for the indulgence of those with whom i differ, and of the senate, for detailing the reasons for the motion i made to amend the bill. to do this, it may not be unprofitable to take a review of the causes that led to the measures adopted by the united states, and the course taken by congress to resist the injuries imposed upon us by great britain and france. the insult offered to the honor of the nation in the affair of the chesapeake, so far from being redressed, was heightened by a proclamation from the king of great britain, authorizing publicly, in the face of the world, the boarding of our merchant ships, and taking therefrom whomsoever their officers should call a british subject; to palliate this outrage on our independence, it was recommended to the boarding officer to execute this indignity with politeness. about the same time the government was informed of the case of the horizon, condemned under the berlin decree, and that the emperor had determined that that decree should embrace americans as well as other neutrals. this determination was directly contrary to the assurance given general armstrong, by the french minister of marine, as well as to the practice under the decree. this was the first intimation given to our government that the berlin decree would operate on the interest of the united states. the president (as was his duty) laid both of those subjects before congress in a message, and it was well known at the same time, (although not officially,) that the british order of council of november had been issued. what was then our situation with those nations? france had declared every american vessel that was bound to or from great britain, or having on board goods, the produce or manufacture of great britain, to be lawful prize. great britain declared that every american vessel bound to any port of europe, should first come into her ports, there land her cargo, pay a transit duty, and depart (if they pleased) to their original port of destination; and any vessel failing to do so, should be liable to condemnation; that any american vessel having a certificate of origin on board, should be considered good prize. thus situated, we had a choice of war or embargo. to make war on france would have been idle; we could inflict no wound on her by war, except that of withholding our supplies from her west and east india colonies, and this would as effectually be done by an embargo. in a war with england, we could inflict severe wounds on her immense commerce, and she is always vulnerable on the side of canada. a more pacific system was however adopted--_the embargo_. had that measure been rigidly enforced, it could not have failed to have compelled a removal of the unjust conduct of those nations, most certainly of that of great britain. the senate, aware that a measure of that kind could not be enforced without a physical force, sensible that the prospect of profit would induce many to prevent its intended operations by evasions, did immediately pass a bill authorizing the president to fit out and put to sea all the armed vessels of the united states, for the purpose of preventing evasions of the law, to employ our seamen who were thrown idle, and to be prepared for events should a war ensue. the bill slept in the other house, and, by an ill-timed economy, was ultimately rejected, by which a free scope was given to evaders of the law, and the system (which was a wise one) was in some degree frustrated; yet it had an effect highly salutary on great britain, it compelled her to modify the orders of council of november, and no longer were our ships compelled to go into her ports, and there pay tribute; no longer were our vessels subjected to condemnation for having a certificate of origin on board. the embargo was severely felt by great britain while in force, every article which they had been accustomed to receive from us rose immediately in price, and i am confident that had it been continued and executed, full satisfaction would have been given by britain for the various outrages which had been committed on our honor and independence. it was relinquished, and a non-intercourse was substituted as to both nations. this measure, although less strong, was such as would have been very severely felt by the british nation. it completely excluded the importation of her manufactures into the united states; it took from her a market for more than one-half of her manufactures; it turned idle a large number of workmen, and although it did not prevent her from getting our productions, yet she obtained them in such a way, that they cost her, in some instances, double their usual price. this new system was however checked in its course by the arrangement made with great britain through mr. erskine. our ports were thrown open, and our vessels (then nearly all in our harbors) soon filled great britain with every thing she wanted at low prices; flour fell instantly in england to nine and a half and ten. dollars the barrel. great britain, in lieu of the orders of council, excluded us from france and holland, and their colonies, and from italy, by a paper blockade; an iniquitous, illegal system, which she had adopted in , and has either contracted or extended at her pleasure ever since. our own law excluded us from france and italy. this tended to give a direction to a great proportion of our trade to great britain, and thereby completely supplied her wants. on the disavowal of mr. erskine's arrangement, the non-intercourse was renewed, and a stop put to our exports to great britain; the consequence was, that flour rose immediately to fourteen and fifteen dollars in england; cotton, tobacco, and other articles, in a proportion still greater. i mention this to show, that whenever we stop our trade to great britain she feels it sensibly in the high prices she has to give for our exports, and thus to show the efficacy of the system that had been taken, if it had been duly executed. but in her exports great britain felt little, for our merchants had given their orders under the arrangement, and it would have been unjust to have prevented them from receiving the goods they had ordered; the non-importation part, which i conceive the most essential part of the non-intercourse, had in consequence been inoperative. what, then, was our situation when congress met? the french privateers were capturing our defenceless merchant ships, burning those of little value, and carrying into their ports for condemnation those which were valuable. great britain had, by a pretended blockade, excluded us from entering the ports of holland, france, italy, and their west and east india colonies. she had sent a minister to succeed mr. erskine, who, so far from offering any explanations on the disavowal of the arrangement made with his predecessor, added insult to injury, and bearded us to our teeth; he gave us to understand that the terms proposed in the instructions to mr. erskine would be insisted on--terms that i am confident no citizen of the united states would accede to. in this state of our foreign relations congress met, the members brought with them the feelings of the people, who were all alive to the late indignity offered their government, all expected that measures of energy would be pursued. this house felt and acted. resolutions passed almost unanimously, expressive of their sense of the insult offered by the british minister. the senate passed a bill ordering the whole of the vessels of war to be put in commission, (which bill sleeps still in the other house,) and were progressing in preparations for the defence of the honor and safety of the nation, when the bill now under consideration was reported by the committee of foreign relations. it operated instantly like an electric shock, it paralyzed every effort, and gentlemen were astonished when they were told that this bill was the great measure that was to preserve our honor in the eyes of all the world; that it was the grand panacea which was to heal the wounds that had been inflicted on our rights by the belligerents. in fact, it was the only measure on which we were to rely for a redress of all our grievances. mr. president, i read this grand effort with attention. in vain did i look for something therein that would tend to obtain satisfaction for the insult on the chesapeake; in vain for any thing that would tend to prevent the future impressment of our seamen; in vain for any thing that would induce or coerce the belligerents to repeal their unjust orders and decrees against our lawful commerce. one great feature, and one only, was to be discovered, to wit: the repeal of the non-intercourse law--covered by a thin veil, composed, as the gentleman from kentucky (mr. clay) has said, of shreds and patches. not so, mr. president; if it had been patchwork alone, i should not have disturbed its arrangement. but i found in it, or believe i did, that which would be ruinous to the commerce of the united states, and therefore felt myself bound by the duty i owe to my constituents to remove the veil, and leave the measure open to public view; the senate concurred with me in opinion, to wit: to strike out the injurious sections, to which opinion i shall vote to adhere. i have been asked, shall congress rise and do nothing? i answer, that it is better to do nothing than to do that which will only injure ourselves. but, sir, i wished to do something; i proposed, in select committee, to strike out those sections which would only do us injury, and then fill their place with sections (which i had draughted and presented for consideration) authorizing the arming of the merchant ships, not for defence alone, but with authority to capture and make prize of any vessel that might assail them while engaged in lawful commerce, and to employ the public ships of war in convoying the trade of the nation. i met with no support in this system; there were in committee four against my motion. discouraged by so large a proportion voting against me, i neglected, or was deterred from making the same motion in senate, and this error i regret, although i know not whether i should have been more successful in senate than i had been in committee; but i should have been better pleased with my own conduct. i had, it is true, an expectation that, in a committee of conference between the two houses, that something might be introduced that would please both branches of the legislature; and i presumed that the convoy system would be substituted. i have been mistaken. the conferees met, and the committee of senate submitted a section, "authorizing the president, under his instructions, made conformably to the laws of nations, to grant convoy to the merchant ships of the united states engaged in lawful commerce." that proposition spoke this language to the belligerents: the united states have taken every pacific means of obtaining justice from you without success. we will no longer deprive ourselves of commerce; we will open our trade, and we will defend it. we are ready to meet the consequences that may arise, and will stand prepared for war, if war shall ensue. this, mr. president, appeared to your committee as a course that would be honorable to the nation. it was unanimously rejected by the committee on the part of the house, who, in turn, proposed that "british ships should be permitted to bring into the united states the produce and manufactures of that nation, but should not be permitted to carry from the united states any of the produce thereof," and the same as to france. this most extraordinary proposition was unanimously rejected by the conferees on the part of the senate. strip the proposition, and what language does it speak? that the british merchant may send into your ports his ships and fill your market with british goods, to the great injury of your infant manufactories; he may enter into competition with them and work their destruction. but he must not enter into competition with the merchants in the purchase of a return cargo, nor with the ship owners in the carrying of the produce of the country. no, sir, that was hallowed ground, and must not be trodden. the conferees of the two houses could not agree, and the question now before the senate is, to adhere to their amendments. for which i shall vote, although the bill will then not be such as i wish it had been. but, sir, it cannot in this stage be amended. i am aware that my vote will be disapproved by many of my friends. but, sir, i trust that time, and a further consideration of the subject, will convince them that my objections to the rejected sections have not been unfounded. the question being then taken that the senate adhere to their amendments, it was determined in the affirmative--yeas , nays , as follows: yeas.--messrs. anderson, bayard, champlin, gaillard, german, gilman, goodrich, gregg, hillhouse, horsey, leib, lloyd, parker, pickering, smith of maryland, sumter, and whiteside. nays.--messrs. bradley, brent, campbell, clay, condit, crawford, franklin, giles, lambert, mathewson, meigs, pope, smith of new york, tait, and turner. thursday, march . _national bank._ mr. bayard, from the committee appointed on the subject the thirteenth instant, reported a bill making provision for the establishment of a national bank; and the bill was read and passed to a second reading. [the bill was for a new bank of millions capital, the subscription for shares open to every citizen of the united states or of its territories, to copartnerships composed of such citizens or body politic incorporated within the united states, to the amount of shares.] wednesday, april . _bank of the united states._ the president laid before the senate the following report of the secretary of the treasury, made in pursuance of the resolution of the senate of the d instant: treasury department, _april , _. sir: i have the honor to transmit a report, prepared in obedience to the resolution of the senate of yesterday. i have the honor to be, &c., albert gallatin. _to the honorable the president of the senate_: the secretary of the treasury, in obedience to the resolution of the senate, of the d instant, respectfully reports-- that the statement annexed to the report made to the senate on the d day of march, , contained all the dividends made by the bank of the united states, from its establishment to the date of the report, as stated to the treasury by the bank. that the annexed table, (a,) being a transcript of the above-mentioned statement, with the addition of the dividends made on the st day of july, , and on the first day of january last, embraces not only the semi-annual dividends of per cent., but also all the extra dividends which are within the knowledge of this department, and which, it is believed, have ever been made by the bank; making, in the whole, an average of - per cent. a year. that there remained to the credit of the bank, after payment of the dividend made on the first day of january last, a surplus of $ , , consisting of two items, viz: $ , , designated by the name of "general bank estate," intended as an offset against decay and presumed loss, in case of sale of the real estate of the bank--that estate having been paid for from the capital stock, and not from the profits of the bank; and $ , , designated by the name of "contingent fund," intended in the first place to cover losses arising from bad debts, not yet actually lost; and the residue of which, if any, will be applicable to another extra dividend. that the nominal profit resulting to the bank, from each of its offices of discount and deposit, could not be ascertained without an investigation of all the weekly returns made to this department; and that there are no returns from which the actual loss sustained by each office can be known. but, that the statement (b) shows the permanent capital given to each office of discount and deposit; the balance due in account current by the offices of the bank, (exclusive and in addition to the said permanent capital,) on the th day of march last; the amount of the notes actually discounted and due to the bank by the last returns, specifying the amount discounted at philadelphia, and at each office respectively; and an estimate of the gross amount of the annual expenses and losses of the bank, including its several offices, by which it appears that the annual expenses, being about $ , a year, the ascertained losses must in the whole have amounted to about $ , a year. all which is respectfully submitted. albert gallatin. _dividends on united states bank stock._ ========================================== no. | date. | rate p. ct. -------+-----------------+---------------- | july, | | january, | | july, " | - / [ ] | january, | - / [ ] | july, " | | january, | | july, " | | january, | | july, " | | january, | | july, " | | january, | [ ] | july, " | | january, | | july, " | | january, | | july, " | | january, | [ ] | july, " | | january, | - / [ ] | july, " | - / [ ] | january, | - / [ ] | july, " | | january, | - / [ ] | july, " | | january, | | july, " | | january, | | july, " | | january, | [ ] | july, " | | january, | | july, " | | january, | | july, " | | january, | ========================================== _statement of the capital of the several branches, and of the bank of the united states, and of the amount of discounts by the last received returns._ =================================================== cities, &c. | capital. | amt. of notes | | discounted =================================================== boston | $ , | $ , new york | , , | , , baltimore | , | , , washington | , | , norfolk | , | , charleston | , | , , savannah | , | , , new orleans | , | , philadelphia-- | | balance due the | | bank, in account | | current, by the | | offices $ , | | cap. res'd , , | | --------- | , , | |-------------| | $ , , | funded debt | -- | , , | |------------- | | $ , , =================================================== _estimate of the expenses and losses of the bank._ six per cent, on $ , , , estimated as per above, as the amount usually loaned on interest, is, per annum, $ , , --to wit: dividend of - per cent. a year, on ten millions of $ , dollars actually paid to the stockholders, is, per annum undivided surplus on the st january, , $ , , , divided by years, would be equal to an annual dividend of leaving for the estimated annual amount of expenses and , losses ----------- total $ , , =========== tuesday, april . _the mississippi river pirate, mason._ mr. clay presented the petition of elisha winters, stating that, in the years , , and , the wilderness from natchez to kentucky, and the river mississippi, was infested by a notorious gang of highway robbers, headed by a certain samuel mason, and that the petitioner was the means by which the said mason was killed, two of his accomplices apprehended and executed, and the remainder of the banditti dispersed, and praying he may be allowed the reward offered for the apprehension of the said mason by the president of the united states, or by the then governor of the mississippi territory; and the petition was read, and referred to a select committee, to consider and report thereon; and messrs. clay, whiteside, and crawford, were appointed the committee. the senate resumed, as in committee of the whole, the bill for the establishment of a quartermaster's department; and it was agreed that the further consideration thereof be postponed until to-morrow. tuesday, april . the vice president being absent, the senate proceeded to the election of a president _pro tem._, as the constitution provides; and the hon. john gaillard was elected. _ordered_, that the secretary wait on the president of the united states, and acquaint him that the senate have, in the absence of the vice president, elected the hon. john gaillard, president of the senate _pro tempore_. _ordered_, that the secretary make a like communication to the house of representatives. wednesday, april . _national bank._ the senate resumed, as in committee of the whole, the bill making provision for the establishment of a national bank. on motion, by mr. hillhouse, to strike out the first section of the bill, the senate was equally divided--yeas , nays , as follows: yeas.--messrs. brent, champlin, german, gilman, goodrich, hillhouse, horsey, lloyd, meigs, pickering, pope, reed, smith of new york, tait, and whiteside. nays.--messrs, anderson, bayard, bradley, clay, condit, crawford, franklin, gaillard, giles, gregg, lambert, leib, smith of maryland, sumter, and turner. so the question was lost. friday, april . _territory of orleans._ the senate resumed, as in committee of the whole, the bill to enable the people of the territory of orleans to form a constitution and state government, and for the admission of such state into the union on an equal footing with the original states, and for other purposes; and on motion, by mr. clay, to amend the bill, by adding at the end of the third section the following words: "_provided further_, that the said convention shall, by an article in the constitution so to be formed, irrevocable without the consent of the united states, provide, that, after the admission into the union of the said territory of orleans as a state, the laws which such state may pass shall be promulgated, and its records of every description shall be preserved, and its written, judicial, and legislative proceedings conducted, in the language in which the laws and the written, judicial, and legislative proceedings of the united states are now published and conducted:" it was determined in the affirmative--yeas , nays , as follows: yeas.--messrs. bayard, campbell, champlin, clay, giles, gilman, goodrich, horsey, lambert, leib, lloyd, meigs, pickering, pope, smith of maryland, smith of new york, and turner. nays.--messrs. anderson, bradley, condit, crawford, franklin, gaillard, german, gregg, hillhouse, reed, sumter, and whiteside. wednesday, april . _national bank._ the senate resumed, as in committee of the whole, the bill making provision for the establishment of a national bank. and on motion, by mr. bayard, that the further consideration thereof be postponed until the first monday in december next, it was determined in the affirmative--yeas , nays , as follows: yeas.--messrs. bayard, bradley, brent, champlin, crawford, german, gilman, goodrich, hillhouse, horsey, lloyd, pickering, pope, reed, smith of new york, sumter, and turner. nays.--messrs. anderson, clay, condit, franklin, gaillard, giles, gregg, lambert, leib, mathewson, meigs, robinson, smith of maryland, and whiteside. thursday, april . the senate resumed, as in committee of the whole, the bill, entitled "an act providing for the sale of certain lands in the indiana territory, and for other purposes;" and having agreed to the amendments reported by the select committee, the president reported it to the house accordingly; and on the question, shall this bill be read the third time, as amended? it was determined in the affirmative. mr. gilman, from the committee, reported the bill allowing compensation to robert robinson correctly engrossed; and the bill was read the third time; and the blank having been filled with the words _five hundred_-- _resolved_, that this bill pass, and that the title thereof be "an act allowing compensation to robert robinson." the senate resumed the motion made yesterday on the subject, which was amended and agreed to, as follows: _resolved_, that the secretary of the treasury be directed to lay before the senate a statement of all claims which have been adjusted and allowed at the treasury department, in virtue of the law entitled "an act providing for the settlement of the claims of persons, under particular circumstances, barred by the limitations heretofore established;" and also, a statement of the balances standing in the books of the treasury against the united states, which are barred by the statute of limitations, together with his opinion whether the said statute can be modified or repealed, as to that or any other description of claims, without subjecting the government to imposition. mr. clay gave notice that to-morrow he should ask leave to bring in a bill, supplementary to an act, entitled "an act for the punishment of certain crimes against the united states." the bill entitled "an act authorizing a loan of money, for a sum not exceeding the amount of the principal of the public debt reimbursable during the year one thousand eight hundred and ten," was read the second time, and referred to a select committee, to consist of five members, to consider and report thereon, and messrs. smith of maryland, crawford, lloyd, franklin, and hillhouse, were appointed the committee. _territory of orleans._ the senate resumed, as in committee of the whole, the bill to enable the people of the territory of orleans to form a constitution and state government, and for the admission of such state into the union on an equal footing with the original states, and for other purposes; together with the amendments reported thereto by the select committee. on motion, by mr. hillhouse, to add, at the end of the bill, the following words: "_provided_, that the several states shall assent thereto, or an amendment to the constitution of the united states shall authorize congress to admit said territory of orleans into the union, on the footing of the original states:" it was determined in the negative--yeas , nays , as follows: yeas.--messrs. champlin, german, goodrich, hillhouse, horsey, lloyd, pickering, and reed. nays.--messrs. anderson, brent, clay, condit, crawford, franklin, gaillard, giles, gilman, gregg, lambert, leib, mathewson, meigs, pope, smith of maryland, sumter, tait, turner, and whiteside. and the report of the select committee having been agreed to, and the bill further amended, the president reported it to the house accordingly. on the question, shall this bill be engrossed and read a third time as amended? it was determined in the affirmative--yeas , nays , as follows; yeas.--messrs. anderson, brent, clay, condit, crawford, franklin, gaillard, giles, gregg, lambert, lloyd, mathewson, meigs, smith of maryland, sumter, tait, turner, and whiteside. nays.--messrs. champlin, german, gilman, goodrich, hillhouse, horsey, leib, pickering, and reed. monday, april . _barred claims._ the president communicated the report of the secretary for the department of the treasury, made in pursuance of the resolution of the senate of the th instant, on the subject of claims barred by the statute of limitations; and the report was read, as follows: treasury department, _april , _. sir: i have the honor to transmit a report prepared in obedience to the resolution of the senate, of the twenty-six instant. i have the honor to be, &c., albert gallatin. _to the honorable the president of the senate_: the secretary of the treasury, in obedience to the resolution of the senate, of the th instant, respectfully reports-- that it appears, by the letter from the register of the treasury, herewith transmitted, that the statement of all the claims adjusted and allowed, by virtue of the act, entitled "an act providing for the settlement of the claims of persons under particular circumstances, barred by the limitations heretofore established," cannot be completed before the day contemplated for the adjournment of congress, but will be prepared so as to be laid before the senate at the commencement of their next session. that the statement (a) herewith transmitted, exhibits the amount of the balances standing on the books of the treasury against the united states, which are barred by the statutes of limitation, and arranged under the following heads, viz: loan office certificates $ , indents for interest on the public debt , final settlement certificates , commissioners' certificates , army commissioners' do. , credits given in lieu of army commissioners' certificates cancelled , credits for pay of the army, for which no certificates were ever issued , invalid pensions , ---------- amounting together to , ========== that so far as relates to the said balances, which result altogether from accounts actually settled at the treasury, the statute of limitation can be repealed without subjecting the government to imposition; but that considering the length of time which has elapsed since the claims have been barred, and the little value on that account affixed to them, the repeal of the statute, unless properly guarded in that respect, may not generally benefit the rightful claimants. and that with the exception of those balances, it is not believed that it would be safe to repeal the statute of limitation in relation to any other general description of claims; although there may be special cases in which, notwithstanding the lapse of time, the proper proofs and checks may still exist, so as to prevent any imposition on the public. all which is respectfully submitted. albert gallatin. tuesday, may . _barred claims._ mr. hillhouse, from the same committee, further reported as follows: _resolved_, that the secretary for the department of the treasury report to the senate, at their next meeting, the necessary provisions for guarding the treasury of the united states from fraud and imposition on the removal of the statute of limitations, in relation to the following claims mentioned in his report of the th of april, , viz: . loan office certificates. . indents for interest on the public debt. . final settlement certificates. . commissioners' certificates. . army certificates. . credits given in lieu of army certificates cancelled. . credits for the pay of the army, for which no certificates were issued. . invalid pension. also, how far the statute of limitations may with safety be removed, as to claims for personal services rendered in the army of the united states, during the revolutionary war, and the guard and checks necessary and proper to be adopted. and the report was considered and agreed to. _adjournment._ mr. crawford, from the joint committee, reported that they had waited on the president of the united states, who informed them that he had no further communication to make to the two houses of congress. _ordered_, that the secretary notify the house of representatives that the senate, having finished the business before them, are about to adjourn. the secretary having performed that duty, the president adjourned the senate without delay. footnotes: [ ] dividends falling short of the rate of per cent. per annum. [ ] including extra dividends. eleventh congress.--second session. proceedings and debates in the house of representatives. monday, november , . this being the day appointed by law for the meeting of congress, the following members of the house of representatives appeared, and took their seats, to wit: _from new hampshire_--daniel blaisdell, and nathaniel a. haven. _from massachusetts_--ezekiel bacon, richard cutts, william ely, barzillai gannett, josiah quincy, sam'l taggart, charles turner, jr., jabez upham, joseph b. varnum, (the speaker,) and laban wheaton. _from vermont_--william chamberlin, martin chittenden, jonathan h. hubbard, and samuel shaw. _from rhode island_--richard jackson. _from connecticut_--epaphroditus champion, samuel w. dana, john davenport, jonathan o. mosely, timothy pitkin, junior, lewis b. sturges, and benjamin tallmadge. _from new york_--james emott, jonathan fisk, thomas r. gold, robert le roy livingston, peter b. porter, erastus root, ebenezer sage, thomas sammons, john thompson, and killian k. van rensselaer. _from new jersey_--adam boyd, james cox, william helms, jacob hufty, thomas newbold, and henry southard. _from pennsylvania_--william anderson, david bard, robert brown, william crawford, aaron lyle, william milnor, john porter, john rea, matthias richards, john smilie, george smith, samuel smith, and robert whitehill. _from maryland_--charles goldsborough, john montgomery, nicholas r. moore, roger nelson, and archibald van horne. _from virginia_--burwell bassett, james breckenridge, john clopton, john dawson, john w. eppes, thomas gholson, junior, peterson goodwyn, john g. jackson, joseph lewis, junior, john love, thomas newton, john t. roane, john smith, and james stephenson. _from north carolina_--willis alston, junior, james cochran, william kennedy, nathaniel macon, archibald mcbride, joseph pearson, lemuel sawyer, and richard stanford. _from south carolina_--lemuel j. alston, william butler, joseph calhoun, robert marion, thomas moore, and john taylor. _from georgia_--howell cobb, and george m. troup. _from ohio_--jeremiah morrow. _from kentucky_--joseph desha, benjamin howard, richard m. johnson, and samuel mckee. _from tennessee_--pleasant m. miller, john rhea, and robert weakley. _from mississippi territory_--george poindexter. _from indiana territory_--jonathan jennings. _from orleans territory_--julien poydras. adam seybert, returned to serve as a member of this house, for the state of pennsylvania, in the room of benjamin say, resigned, appeared, produced his credentials, was qualified, and took his seat. jonathan jennings, returned to serve as a delegate from the territory of indiana, appeared, produced his credentials, was qualified, and took his seat. a quorum, consisting of a majority of the whole number, being present, mr. goodwyn and mr. root were appointed a committee on the part of the house, jointly with such committee as may be appointed on the part of the senate, to wait on the president of the united states, and inform him that a quorum of the two houses is assembled, and ready to receive any communications he may be pleased to make to them. tuesday, november . several other members, to wit: from new hampshire, john c. chamberlain and james wilson; from rhode island, elisha r. potter; from pennsylvania, william findlay and daniel heister; from virginia, matthew clay and jacob swoope; and from north carolina, john stanley, appeared, and took their seats in the house. a message from the senate informed the house that a quorum of the senate is assembled, and ready to proceed to business. they have appointed a committee on their part, jointly with the committee appointed on the part of this house, to inform the president that a quorum of the two houses is assembled, and ready to receive any communications that he may be pleased to make them. the speaker laid before the house a certificate of the election of adam seybert, to serve as a member for the state of pennsylvania, in the room of benjamin say, resigned; which was read, and, together with the certificate of the election of jonathan jennings, the delegate from the territory of indiana, referred to the committee of elections. wednesday, november . several other members, to wit: from new york, john nicholson; from maryland, john brown; and from virginia, walter jones, appeared, and took their seats in the house. thursday, november . several other members, to wit: from new hampshire, william hale; from massachusetts, gideon gardner and ezekiel whitman; and from new york, vincent matthews, appeared, and took their seats in the house. the speaker laid before the house the following letter, which was read: _respect for the house._ _to the speaker of the house of representatives_: sir: an occurrence having recently taken place between a member of the house of representatives and myself, produced by circumstances not at all connected with his official duties or opinions, which from the time and place may be considered disrespectful to the house of representatives, i take the liberty of tendering through you my most respectful declarations, that i am the last who would wilfully manifest a deficiency of that reverence which is due to the representatives of my country, or that sacred regard which is also due to their privileges. to yourself, sir, personally, i tender the assurances of my very great respect. i. a. coles.[ ] november , . [no order having been taken on it, the letter lies on the table of course.] friday, december . two other members, to wit: from virginia, edwin gray; and from north carolina, meshack franklin, appeared, and took their seats in the house. _navigation laws._ mr. macon said he wished early to call the attention of the house to two motions, the object of which he deemed to be very important. the first of them had been formerly submitted to the house by a gentleman from georgia, (mr. early) but never acted on, and afterwards by a gentleman from south carolina, (mr. d. r. williams;) the other had been presented by mr. macon himself at the last session, but at so late a period that it had not been acted on. it appeared to mr. macon that these motions combined with one submitted at different times by a gentleman from connecticut, (mr. dana,) would form something like a system. the object of the first motion he was about to submit, was to prohibit any foreign vessel from coming from any port or place to which the vessels of the united states could not go. gentlemen would at once observe that there were many places whence vessels came to this country, to which we cannot go, and would perceive the extent of the motion. the other motion related to sea-letter vessels only. mr. macon said he wished to put them out of the nation, and to have no vessels belonging to the united states which were not perfectly american. he would have our vessels wholly american, or they should not at all partake of the character of american vessels. after declaring that he considered his motions as calculated for permanent regulations, mr. macon submitted the following resolutions: _resolved_, that the committee of commerce and manufactures be instructed to inquire into the expediency of prohibiting the entry of any vessel into the united states from any port or place to which a vessel of the united states is not admitted by permanent regulation of the government owning such port or place by treaty. _resolved_, that the committee of commerce and manufactures be instructed to inquire into the expediency of authorizing the registering anew of vessels built in the united states, which are owned in whole by citizens of the united states, any disability incurred by such vessel to the contrary notwithstanding; and also into the expediency of forbidding by law sea-letters or any custom-house documents being granted to vessels not registered or licensed according to law, or not owned by citizens of the united states, within a limited time after the passing of such a law. mr. newton having seconded these motions, mr. macon moved to refer them to the committee of commerce and manufactures. mr. dana observed that these resolutions had in view merely an investigation by the committee of commerce and manufactures into the subject of them. on such a question it was but necessary to ask whether the subject be of itself interesting, and whether or not the proposition bears on the face of it so much of probability and propriety that there could be no objection to it on the score of its being utterly inadmissible. unless, therefore, the propositions were utterly inadmissible, if they related to a subject interesting to the nation in time of peace as well as of war, if they had a connection with one great branch of national policy, there could be no objection to have them investigated by a committee. without expressing any opinion on the first proposition, which embraced a variety of important considerations, mr. d. said that the motions were recommended to the house by their being founded on permanent principles, to which the nation may adhere in every alternative; and in addition to the attention due to them because they were of a permanent character and not merely temporary expedients, they might contribute to some of those measures of temporary policy deemed proper, and without a possibility of thwarting, might perhaps aid any project the government might adopt. as to the second resolution, that he considered important in another point of view, as tending to encourage american manufactures. if there be any manufacture which requires great precision of science and experimental skill, any one which embraces more of the profound and elevated principles of science, and requires more dexterity in practical execution than any other, it is the constructing of ships. with these ideas, which mr. dana said were not applicable to the merits of the proposition, but to the question of reference, he should vote for referring them. he was extremely glad the motions had been brought forward, and particularly that they had been introduced by a gentleman so well qualified to sustain them, by his character and talents. the motion for referring mr. macon's propositions was carried. [the following gentlemen compose this committee: messrs. tallmadge, clay, butler, rea of pennsylvania, weakley, hale, turner.] . _resolved_, that so much of the message of the president of the united states as relates to the finances of the united states, be referred to the committee of ways and means. . _resolved_, that so much of the message of the president of the united states as relates to the fortifications of the ports and harbors of the united states, be referred to a select committee. [this committee is composed of the following gentlemen: messrs. clopton, john porter, emott, mckim, gardner, mcbryde, and witherspoon.] monday, december . several other members to wit: from maryland, alexander mckim; from north carolina, thomas kenan; from south carolina, robert witherspoon; from kentucky, henry crist; and from georgia, william w. bibb, appeared, and took their seats in the house. _committee of manufactures._ mr. sawyer asked leave to lay upon the table the following resolution, of a nature similar to one which he had proposed at the last session, which, from the shortness of the session, he presumed, rather than from any unfriendly disposition, never had been acted on: _resolved_, that a standing committee be appointed, to be called the committee of manufactures, whose duty it shall be to take into consideration all such petitions, matters, and things, touching manufactures, as shall be presented, or shall or may come in question and be referred to them by the house, and to report, from time to time, their opinion thereon. mr. s. said it was certainly too much to expect any one committee to do justice to two such important subjects, becoming daily more so, as those of commerce and manufactures. he wished to have employed on the subject of manufactures the undivided energies of the best talents of the house; he hoped that all the rays of patriotism and genius in the house would be directed to this subject as to a focal point at which they should all converge. how could one committee properly attend to the mass of business before the committee of commerce and manufactures? the subject confided to them could not be acted on, and yet important matters were continually dropping into this gulf of oblivion. this committee, however, did all that could be expected of them; he did not believe that any member of it was hostile to manufactures; he could answer for the chairman, (mr. newton,) whom he knew to be friendly to manufactures, both from precept and example. it was because it was impossible for the committee to attend to all the business before it, that he offered the resolution. mr. s.'s motion lies on the table one day, of course, according to the rules of the house. _violations of neutral rights._ mr. troup begged leave to submit to the consideration of the house several resolutions, which had for their object the vindication of the commercial rights of the united states against the belligerent nations of europe. he submitted them at this time with less reluctance, because the introduction of them was in nowise inconsistent with the most friendly negotiation which might be pending with foreign governments. it is high time, said mr. t., in my opinion, that these commercial rights were either vindicated or abandoned. the remnant of commerce, which the joint operation of the belligerent decrees has left to us, is scarcely worth carrying on. to designate what this little is, would be no difficult matter, but it would be superfluous; every one who hears me understands it. but, it would be well to inquire, on what principle the belligerents pretend to justify these commercial restrictions? the avowed principle is retaliation, but is it the true principle? unquestionably not. and why? because it is equally asserted by both belligerents. both cannot be retaliators; one must be the aggressor, the other the retaliator. if this principle, then, be equally urged by both, who is to judge between them? if the alleged principle of retaliation be not the true one, what is? as respects france, the true principle of her decrees is to be sought in the policy of embarrassing england by excluding from the continent british merchandise; and as to great britain, the principle of her orders in council may be found in the consideration of her interest and her power. she avowedly contends that it is her interest to engross the commerce of the world; that she has the power to engross it, and, therefore, she will engross it. but, what are the principles more specifically asserted by great britain? first, the right of blockade by proclamation; second, the right to turn your vessels into her ports to pay duty and take out a license. this right of blockading by proclamation is not a right growing out of a state of war; it is no belligerent right; it is a pretension, as applicable to a state of peace as to a state of war, and if we submit to it in a state of war, we must submit to it in a state of peace. the only principle of blockade which we recognize is that which gives to belligerents a right to turn from ports so closely invested as to make the entry of them dangerous, and after due warning, vessels bound to them. but the right asserted by great britain to blockade by a piece of parchment or paper, issued from her council chamber, a port or ports, a kingdom or kingdoms, a continent or continents, is a right no more relative to a state of war than to a state of peace; and, if we submit to the pretension in a state of war, we must equally submit to it in a state of peace. it is founded on the most arbitrary tyranny, it goes to the annihilation of your commerce. as to the other right, of forcing our vessels into her ports, to pay duty and take out license, this is equally applicable to a state of peace as to a state of war. we acknowledge the right of great britain, or any other nation, to shut her ports against us, provided there be no treaty stipulation to the contrary. but the right of great britain or of france to shut the ports of any other nation against us is a right no more appertaining to a belligerent than to a neutral. if we submit to it in war, we must equally submit in peace; and this right, like the other, is founded in the most arbitrary tyranny. what right has britain to tyrannize on the ocean, and prescribe limits to our trade? she will not permit to us a trade which she cannot herself enjoy; she prohibits to us a trade which our government permits, because it is her interest to monopolize it. it is equally our interest to monopolize, and, therefore, if you please, sir, we will prohibit the trade which her government permits, and which it is our interest to monopolize. if great britain can rightly prohibit our trade, because it is her interest to prohibit it, have we not the right to prohibit her trade for the same reason? if she, with right and justice, can stop and seize, and confiscate our vessels because they attempt a trade which she forbids, and only because she forbids it, cannot our government do the same in relation to her trade? if she can turn our vessels into her ports to pay duty and take out license, what prohibits us from doing the same as to her vessels? england is a nation, so are we. england is independent, so are we. what prohibits us from doing to england what england does to us? unquestionably nothing. to say that we have no right to do to england what england does to us, is to acknowledge our own inferiority; it is to acknowledge that she may demand without limitation, and that we are under obligation to submit without limitation. i am aware that it may be objected to the resolutions that the adoption of them would lead to hostility: but the same objection is equally applicable to any resolution which would go to the vindication of our commercial rights. they ought not to lead to hostility; they are merely retaliatory. they follow the spirit of the british orders in council and french decrees, and therefore cannot be complained of by either power. there is a great and profitable commerce, and rapidly increasing, passing not indeed before our doors, but near enough to make the capture of vessels engaged in it convenient to us, which the resolutions have chiefly in view. i allude to the brazil and spanish main trade. is it not matter of surprise that a commerce so profitable, so extensive, and so convenient, should have been permitted to a government which permits no commerce to us but what her convenience and her interest suggest? is it not strange that we should have suffered that government to participate in a commerce which both our interest and our convenience stimulate us to engross? but, above all, is it not inexplicable that we should passively have suffered the monopoly of it by her, when we ourselves were willing and able to engross it? the house will perceive, on the face of the resolutions, that, as they regard france, they are equivalent to a war measure--neither by a war measure, nor by that which i have the honor to submit, can we come in contact with france; she has no commerce on the ocean. in relation to england it is short, infinitely short, of war; because by war her continental colonies would fall; her west india islands would be distressed, and our privateers would cut up her commerce; but the resolutions propose merely to retort the evils of her own injustice, to do to her what, and no more than what, she has done to us. reserving for another occasion any further remarks, i beg leave to read the resolutions to the house. mr. t. then read the following resolutions: _resolved_, that it is expedient to authorize the president by law to instruct the commanders of the armed vessels of the united states to stop and bring into the ports of the same all ships or vessels with their cargoes, the property of the subjects of the king of great britain and of the emperor of france, bound to ports other than those within the dominions or colonies of either. _resolved_, that it is expedient further to authorize by law the detention of all ships or vessels, with their cargoes, the property of the subjects of the king of great britain, until the duties to be regulated and ascertained by law shall be first levied and collected upon the goods and merchandise whereof the said ships or vessels shall be laden, and until the said ships or vessels shall have received due license to depart. _resolved_, that it is expedient further to authorize by law the detention of all ships or vessels, with their cargoes, the property of the subjects of the emperor of france, brought within the ports of the united states, there to abide the final decision or order of the government in relation to the same. _resolved_, that an ad valorem duty of ---- be levied and collected on all the goods, wares, or merchandise, of british product or manufacture. _resolved_, that it is expedient further to authorize the president, on payment of the duties authorized to be levied and collected on the goods laden on board vessels the property of the subjects of the king of great britain, forthwith to grant a license to such vessels to depart and to proceed to the port of original destination without further hindrance or molestation. the house having agreed to consider these resolutions-- on motion of mr. troup, they were ordered to lie on the table, as he stated, to give every member the same time to consider them as he had himself taken. tuesday, december . two other members, to wit, from maryland, john campbell; and from georgia, dennis smelt, appeared, and took their seats in the house. tuesday, december . another member, to wit, from new york, uri tracy, appeared, and took his seat in the house. _challenges, duels, &c._ mr. bacon said he held in his hands three propositions which deemed it his duty to submit to the house. they were not for the regulation of the great concerns with foreign nations, but for the necessary object of regulating themselves. it would be seen that these resolutions had not grown out of any personal considerations, nor out of any particular case, but out of the serious evils to which the house had been exposed by the want of such regulations from the commencement of the government. in , the evil had risen to such a height that the house had unequivocally expressed its opinion on it.[ ] mr. b. said he felt it his duty to express his sense on the subject by laying the resolutions on the table, and more particularly as he understood that the subject was now agitated in the committee appointed to draught rules and orders for the government of the house. he would merely remark that the resolutions might not be correct in form, or they might be altogether erroneous in principle. he was not anxious as to the particular form; but he was decidedly in favor of the general object, and wished to take the sense of the house upon it. for himself he was well prepared to act on them; but for the convenience of others he wished them to lie on the table. _resolved_, that the committee appointed to report on the rules and orders for the government of the house, do report a rule declaring, "that if any member, in the course of debate, shall make use of opprobrious or vilifying language with respect to any member, or call into question the integrity of his motives, or those of either branch of the government in relation to the discharge of his official duties, except on a motion for impeachment, or for other interposition of the constitutional powers of this house--or apply to either indecorous or reproachful expressions--it shall be deemed a breach of the orders of the house." that said committee be instructed further to report a rule declaring, "that if any member, during the session of congress, whether of the house or not, shall give or send to any other member during his actual attendance at the seat of government, a challenge to fight a duel, or if the member so challenged shall accept the same, it shall be deemed a breach of the privileges of the house, as well on the part of such members as on that of any other person whether a member or not, who shall be aiding, abetting, or assisting in giving or sending such challenge, or in carrying the same into effect, and every such member shall be held liable to be expelled from the house therefor." that said committee be further instructed to report a rule declaring, "that if any person, during the session of congress, whether a member of the house or not, shall commit personal violence or assault upon any member during his actual attendance at the seat of government, it shall be deemed a breach of the privileges of the house, as well on the part of the person so assaulting, as on that of any other person who shall be aiding, abetting, or assisting therein, and such person, if a member, shall be held liable to be punished therefor, at the discretion of the house." ordered to lie on the table. friday, december . two other members, to wit: from maryland, philip b. key, and from virginia, daniel sheffey, appeared, and took their seats in the house. monday, december . several other members, to wit: from massachusetts, william stedman and edward st. loe livermore; from new york, barent gardenier; and from pennsylvania, john ross, appeared, and took their seats in the house. the speaker laid before the house a letter from wilson c. nicholas, resigning his seat as one of the members of the house, for the state of virginia. the letter was read, and ordered to lie on the table. _batture at new orleans._ a motion was made by mr. sheffey, that the house do come to the following resolutions: _resolved_, that provision ought to be made by law to authorize the president of the united states to cause the several persons who were removed from the batture, in front of the suburb st. mary, in the city of new orleans, on the th january, , to be restored to the possession thereof; to be held with the same right with which they respectively held the same, prior to such removal; any thing to the contrary notwithstanding. _resolved_, that it is expedient to authorize the president of the united states, if he shall be of opinion that the united states have such a claim to the batture, in front of the suburb of st. mary, in the city of new orleans, as will justify the expense of prosecuting the same, with the assent of the persons removed therefrom, on the th january, , to name three persons, who shall have full power to hear, and finally determine, all right, title, claim, and demand, whatsoever, as well of the united states as the persons so removed, both in law and equity; and their decision, or a majority of them, shall be binding, as well on the united states as the said parties. _resolved_, that it is expedient to authorize the president of the united states, if he shall deem it most proper, to compromise the conflicting claims of the united states and the persons removed from the batture of the suburb of st. mary, in the city of new orleans, or cause the same to be tried in a court of the united states, in such a manner, and at such place, as will secure an impartial trial. the said resolutions were read, and ordered to lie on the table. _british minister--mr. jackson's circular._ mr. quincy observed that he perceived that in the letter from mr. smith to mr. pinkney accompanying the message from the president of the united states of the th november, , an allusion was made to an important paper headed "circular," which had not been communicated to congress. he perceived, also, that by the resolution just received from the senate, a specific declaration was required as to the contents of that very paper. it appeared to him extremely proper that the house should have that paper on its files, and within the reach of its members, before a declaration was made respecting it. under this impression he offered the following resolution: _resolved_, that the president of the united states be requested to lay before the house a copy of a paper purporting to be a circular letter from mr. jackson to the british consuls in the united states, referred to in the letter of the secretary of state to mr. pinkney, accompanying the message of the th november. mr. dana observed that there was another document which it might be of some importance to have on the file of the house, and which it might be also necessary to consult--that was, the despatch from mr. canning, which it appeared was sent by mr. pinkney to the secretary of state. he moved to add that paper to the resolution. mr. quincy accepted the amendment as a part of his resolution. mr. eppes asked for a division of the question. he said he was willing to call for any paper which was, or might be presumed to be in possession of the department of state; but it could not be presumed that the circular of mr. jackson was in that office in any other form than that referred to in mr. smith's letter, viz: in a printed form. certain it was that it could not be in the department of state, because it was dated subsequently to the intimation that no further communication would be received from that source by the secretary of state. the only reason, he presumed, why the other paper alluded to had not been communicated to congress, was, that it was a printed paper, purporting to be a despatch from mr. canning. he had no further objection to the call for either of these papers, other than it was neither decorous nor proper to call upon the president for that which could not be officially in his possession. mr. gardenier observed that, in addition to other forcible considerations, it would be treating the executive rudely, when he had called their attention to a particular paper, to go to any other source to procure it; besides that, in the latter case, a spurious copy might be imposed upon the house. if the president referred to a certain document as justifying his conduct, by procuring that document the house would have the whole ground before it. what would be the situation of the house, if, pursuing the ideas of some gentlemen, every member was to bring forward a document which he believed to be the legitimate one, and all these copies should differ? who was to decide which was the correct one? if the house were to act at all on this subject, it was not only respectful and just to the president, but extremely civil, to inquire of him on what ground he has acted. as a true american, and staunch republican, mr. g. was desirous to give the president every opportunity of doing himself justice. mr. quincy said that a copy of this circular having been forwarded to our minister in england, a copy must remain on the files of the secretary of state's office; and, therefore, he asked for it merely that the house might have on this occasion precisely that information which the secretary of state had communicated to mr. pinkney. the question was taken on the first part of the resolution, viz: on that part moved by mr. quincy, and finally carried--yeas , nays . the question was then taken on mr. dana's amendment, viz: on that part calling for a copy of the paper purporting to be a despatch from mr. canning to mr. erskine, and carried without opposition. mr. whitman offered an amendment understood to be intended to embrace in the papers to be called for, the note from mr. erskine to mr. smith containing the "three conditions" which are admitted in mr. smith's letter of october , to have been submitted to him by mr. erskine. on the suggestion of mr. quincy, this motion was declared to be out of order, as it was now too late to receive an amendment to the resolution, both clauses of it having been affirmed by the house. the question was then put on the whole resolution, as amended, and the yeas and nays being demanded on its passage. mr. rhea said he should vote against the resolution, as by passing it the house could add nothing to its stock of information, nor receive any official document; in both cases it could receive only a printed paper. the question was then decided by yeas and nays, in the affirmative--yeas , nays . mr. quincy and mr. dana were appointed a committee to present the foregoing resolution to the president of the united states. tuesday, december . another member, to wit, from massachusetts, ebenezer seaver, appeared, and took his seat. _committee of manufactures._ mr. sawyer called for the consideration of the motion submitted by him for appointing a separate committee of manufactures. the house agreed to consider the resolution, ayes . mr. seybert supported the motion on the ground of the propriety of paying a more particular attention to the subject of manufactures, which had lately become of great importance. mr. newton opposed the motion as unnecessary, because the committee of commerce and manufactures was competent to the performance of all the business assigned it, and had always manifested a disposition to foster the manufactures of the united states. the question on the resolution was decided in the negative, members only rising in the affirmative. friday, december . _mr. jackson's circular._ the following message was received from the president of the united states: _to the house of representatives of the united states_: according to the request of the house of representatives, expressed in their resolution of the th instant, i now lay before them a printed "copy of a paper purporting to be a circular letter from mr. jackson to the british consuls in the united states," as received in a gazette at the department of state; and also a printed paper, received in a letter from our minister in london, purporting to be a copy of a despatch from mr. canning to mr. erskine, of the d of january last. james madison. december , . [the first paper enclosed was the "independent american" of november , containing a copy of the "circular." the second was a piece cut out of a london newspaper.] the circular is as follows: washington, _november , _. (_circular_.) sir: i have to inform you, with much regret, that the facts which it has been my duty to state in my official correspondence with mr. smith, have been deemed by the president of the united states to afford a sufficient motive for breaking off an important negotiation, and for putting an end to all communication whatever with me as the minister charged with that negotiation, so interesting to both nations, and on one most material point of which an answer has not even been returned to an official and written overture. one of the facts alluded to has been admitted by the secretary of state himself, in his letter to me of the th october, viz: that the three conditions forming the substance of mr. erskine's original instructions were submitted to him by that gentleman; the other, viz: that that instruction is the only one in which the conditions were prescribed to mr. erskine for the conclusion of an arrangement on the matter to which it related, is known to me by the instructions which i have myself received. in stating these facts, and in adhering to them, as my duty imperiously enjoined me to do, in order to repel the frequent charges of ill faith which have been made against his majesty's government, i could not imagine that offence would be taken at it by the american government, as most certainly none could be intended on my part; and this view of the subject has been made known to mr. smith. but, as i am informed by him, that no farther communication will be received from me, i conceive that i have no alternative left, which is consistent with the king's dignity, but to withdraw altogether from this city, and to wait elsewhere the arrival of his majesty's commands upon the unlooked-for turn which has thus been given to his affairs in this country. i mean in the interval to make new york the place of my residence, where you will henceforward please to direct your communications to me, as i shall be accompanied by every member of his majesty's mission. i am, &c. f. j. jackson. on motion of mr. quincy, these papers were ordered to be printed--for the motion , against it . monday, december . another member, to wit, from new york, herman knickerbacker, appeared, and took his seat in the house. thursday, december . _conduct of the british minister._ the house again went into committee of the whole on the resolution from the senate. mr. emott concluded his speech against it, as given entire in preceding pages. mr. gholson said, that notwithstanding much had already been said on the subject before the committee, he hoped he should be pardoned for occupying a small portion of their attention. the resolution before us seems to embrace several objects pre-eminently entitled to the dispassionate consideration of congress; objects altogether unconnected with those factions and political dissensions which have unhappily too long prevailed among brethren of the same common family, and which may one day prove fatal to political liberty. the first question which presents itself in the investigation of this subject, involves on the one hand the veracity and dignity of the american government, and, on the other, the character and reputation of a british envoy, and, in some degree, of the british ministry. in my remarks on this subject, i consider it regular to commence with the origin of the mission from great britain to the united states; out of which has arisen the present unpropitious posture of the affairs between the two countries. what, sir, were the circumstances under which that mission was despatched here? in the month of may last, it was known to the british ministry that a commercial arrangement had been made by their envoy resident here, (mr. erskine,) with the american government, but under the allegation that it was made contrary to instructions, it was no sooner known than it, and the minister making it, were disavowed. mr. jackson was then appointed to substitute mr. erskine, the disavowed agent, and at the time he (mr. jackson) was sent to this country, it was well known by the british ministry that the government of the united states stood solemnly pledged to the american people to maintain, and that they had inviolably and steadily adhered, to certain points and principles in our differences with england, a surrender of, or departure from which, would be a sacrifice of the honor and best interests of this nation. yes, sir, when they well knew that, in the affair of the chesapeake, our executive would not, and the voice of almost the whole nation had pronounced that he ought not to make the first advance to a reconciliation, mr. jackson was charged, not only to require the first advance from us, to wit: that in the document which should contain the adjustment of that affair, the revocation of the president's proclamation of , interdicting the british armed ships from our own water, should be recited as an indispensable preliminary; but to require from us also the violation of the principles of our naturalization laws, by insisting on the surrender of foreigners who had become naturalized. as to the orders in council, we know not what specific propositions he was charged with in relation to them. as far as we are able to deduce any thing from facts before us, it must be understood that the british government had determined to accept of no conditions for the repeal of the orders in council except such as had been previously declared on the part of the american government to be inadmissible. notwithstanding what has been said by the gentleman from new york, (mr. emott,) i think it is easily to be demonstrated that the british government did not intend to make any arrangement different from that contemplated by the celebrated instructions of the twenty-third of january, transmitted to mr. erskine. if the british government, so recently as may last, disavowed an arrangement, and recalled its minister, under an allegation that he violated his instructions, was it to be supposed that they would, in two or three months, so far change their policy as to authorize an arrangement on the same principles that they had just rejected? certainly not, sir. it is evident that such an accommodation could not have been designed, because mr. canning says that such measures must be adopted as should secure the objects of the orders in council. that they did not by this mean the mere continuance of the non-intercourse law as to france, is manifest; for mr. canning says to mr. pinkney, that a repeal as to great britain, would be a repeal as to the whole world, unless the british navy were to be permitted to enforce the law interdicting intercourse with france by the seizure of such vessels as should be found violating it. these, sir, were the circumstances under which the mission commenced. what were those that characterized its progress and termination? i think it very easy to show that the conduct of the minister himself, after he arrived, partook strictly of the same character as the conduct of the ministry who sent him. i think i have shown that the disposition manifested by the ministry in sending him here was insulting to this country. let us next inquire into the character disclosed, and the conduct displayed by that minister after his arrival. and, in this inquiry, without wading through all the documents, which gentlemen can as well understand by perusing them in their chambers as by hearing them read here, i will merely advert to the offensive expressions used by mr. jackson, and to the manner in which those expressions were met by the secretary of state. by doing this, it will be very discernible, not only that the facts stated in the resolution are sustained by the correspondence, but that the resolution does not go so far as facts would warrant. in mr. jackson's letter of the th of october, he says, that the arrangement with mr. erskine was made under such circumstances as could only lead to a disavowal. if the circumstances were such as could only lead to a disavowal, they must have been dishonorable, and mr. jackson, by intimating that our government had a knowledge of these circumstances, charges it with being _particeps criminis_. can any thing be more palpable than this? he expresses this idea in still stronger terms when he intimates that mr. smith had a principal agency in the misconduct on this occasion. it certainly was not in mr. smith's power to substitute conditions for those which he declined accepting, but it must have been done by mr. erskine. but, notwithstanding this, he charges mr. smith, not only with conniving at a conduct improper in itself, because it could only lead to rejection of the arrangement growing out of it, but insinuates that he was the principal actor in the scene. in mr. smith's letter in answer to mr. jackson, the animadversions are too clear in their object to be mistaken. mr. j. is informed of the displeasure of the american government at such insinuations; and, in the very first letter which was written by the secretary of state, he disclaims pointedly having had any knowledge whatever of the deficiency of mr. erskine's instructions at the time of making the arrangement. and what says mr. jackson in reply? he says again, that mr. erskine's instructions were known to mr. smith. sir, i acknowledge very candidly, that on a superficial perusal of the correspondence, the charge of falsehood, from the art and adroitness with which it is wrapt up, does not appear so palpable as when it is more closely examined. yet, sir, notwithstanding all knowledge of the instructions had been denied by mr. smith, mr. jackson reiterates the assertion that they were known. do gentlemen say that there is no insult in this? that there is nothing wrong in the assertion of a knowledge on the part of the secretary of state which he had before formally and solemnly disclaimed. in mr. smith's letter to mr. jackson, of the first of november, he intimates to mr. jackson that a language implying such a knowledge on the part of the american government, was altogether inadmissible. what is mr. jackson's reply in his letter of the th of november, which is the last communication that a proper self-respect on the part of the american government would permit it to receive from him? after again insinuating that our government had a knowledge of mr. erskine's instructions, he says: "that any thing therein (in his former letter) contained may be irrelevant to the subject, it is of course competent to you to endeavor to show; and as far as you succeed in so doing, so far will my argument lose of its validity; but, as to the propriety of my allusions, you must allow me to acknowledge only the decision of my own sovereign, whose commands i obey, and to whom alone i can consider myself responsible." in speaking of the propriety of his allusions, he acknowledges that he had made them, and does not deny that they are of the character ascribed to them. this insolent letter is concluded by expressions too plain for any misconception whatever. he says: "i have carefully avoided drawing conclusions which did not necessarily follow from the premises advanced by me, and least of all should i think of uttering an insinuation where i was unable to substantiate a fact." he here, in fact, recognizes the insinuation imputed to him, and says he would not have made it if he could not have substantiated it. collecting all his insinuations, on the one hand, and the refutation of them, on the other, i draw the conclusion that mr. jackson not only insulted the government, but charged it with one of the foulest crimes--with direct falsehood. if the circumstances under which he was sent, and his conduct after he arrived here, were such as i have described, i ask if the occasion does not require that the american government should take a firm and dignified stand? that we should repel insults and respect ourselves? shall the authority to whom only is entrusted the most solemn act of government which can be performed, the act of deciding on the last appeal of nations, stand by and see the executive insulted by an emissary, such as mr. jackson was? i hope not, sir. sir, i consider the present no time for the causeless crimination of our own government, and much less is it a time to countenance any other. we should discard domestic differences and party spirit, which, at a juncture like this, may be disastrous to our country. if we differ among ourselves, in the name of god let us unite against foreign aggression and foreign insult. it is admitted by gentlemen on the other side, that both great britain and france have done us wrong. if so, why not unite against the one as well as against the other? a conduct like this must produce the happiest consequences. if any thing like union is discovered against insult and injury, i believe in god that it would not be long ere we met on reciprocal terms of amity. sir, for my country, i only desire the rule of right; that we must obtain. if it is thought i wish any disaster to befall the british nation, i am misunderstood. i am willing that great britain should be great, happy, and prosperous. i should view her downfall as an inauspicious event; consequences might result from it which i will not undertake to estimate; but i hope that the expectation never will be encouraged from this hall, that great britain can or will receive any terms from us other than such as are fair, honorable, and reciprocal. the terms which have been offered to us are not of that kind. i submit it to gentlemen's own decision. we have long experienced injustice, and if we are only capable of being firm to our purpose, and adhering to the principles of neutrality which have hitherto guided the councils of our country, and especially the enlightened policy of the executive department, we shall no doubt obtain justice. in every view, therefore, it appears to me that the resolution from the senate not only is supported by the correspondence laid before us, but is rendered peculiarly important by the occasion. the appeal made by mr. jackson from the executive, from the organ with which alone a foreign minister can have communication, to the people, to a tribunal with which he cannot communicate, adds great force to the arguments in favor of a firm stand on our part. i hope it will be made, and that it never will be abandoned till we receive that justice which has been but too long delayed. mr. ross observed: i, for one, am an administration man, if that administration act correctly, whether it shall, in a time of great difficulty and doubt, insure a prospect of peace with great britain, or whether it may find it necessary in asserting the rights and independence of the government to involve the nation in war. i think the importance of the one course is as great as the other, and i will, under such circumstances, equally support them when they are likely to make war as to make peace, however other gentlemen may differ from me on this head. before i proceed to state, sir, what i conceive necessary to be understood, in order to come to a correct judgment on these resolutions, permit me to premise that there is more than a presumption that mr. erskine had a power to enter into the arrangement which he made. st. because he himself declared he had such power. dly. because he acted in conformity to that declaration; and, dly. because mr. jackson does not deny he had such power. mr. jackson does not pretend to say that mr. erskine had not other despatches and other instructions than those of the d of january, and that, in them, there were not other conditions of a different grade and character from those contained in that despatch. hence, i think it is fairly to be concluded, that mr. erskine had the power to enter into the agreement. it has, however, been said by the gentleman from connecticut, (mr. dana,) that this is not so much a question of what our government was ignorant of, as of what they knew, or what they ought to have known; and he has entered into a long examination of the mode of commissioning diplomatic characters, whether by letters of credence or by full powers, and has drawn a distinction between the two. in the first place, i apprehend it is in nowise material, to enable the house to decide on the resolution, whether the president did or did not know the nature of mr. erskine's powers. but it is necessary to rescue him from the imputation which those are disposed to cast on him who are desirous to pull down the administration. what was the amount of the gentleman's showing on this occasion? that in all cases, in order to complete a treaty, it is necessary there should be a commission or full power. but has he shown that it is necessary in order to make a preliminary arrangement similar to that entered into? i apprehend he has not. on referring to the letter quoted by him from mr. jefferson, then secretary of state, to mr. hammond, we find the former calling upon the latter to exhibit his powers to enter into a negotiation; but mr. jefferson afterwards recedes from that demand, and receives the word of mr. hammond that he is possessed of power to negotiate as sufficient evidence of his being clothed with the proper power without the exhibition thereof. but the ratification was not withheld, as has been justly said, because there was an absence of a full power on this occasion. mr. jackson himself states that this was not the ground on which the ratification was withheld. it must first be proved that it was obligatory on the executive to call for mr. erskine's full power, and it must then be proved that he did not, before his observations can be brought to bear on the question. where is the proof that the executive did not call for those powers? it is not pretended that mr. erskine had not a power to make an arrangement, but that it was not concluded in pursuance of his instructions. therefore, if he had produced ten thousand powers, unless his instructions had authorized him to do what he did, the british ministry would have rejected the terms stipulated for them, as they have done. but why is it necessary to know, on this occasion, whether the president did call for these powers or not? the inquiry composes no part of the resolution; it is neither expressly mentioned nor glanced at; and why this inquiry is raised, i confess i am utterly at a loss to know, unless it was to prove that the president of the united states had a knowledge of the instructions, and that they restricted mr. erskine's powers. the gentleman has not ventured to infer that the president of the united states had this knowledge, but the course of his argument goes to show that, in his opinion, he did possess this knowledge. he lays down the position, that it was the duty of the president to have seen those powers, and, i presume, supposes that the conclusion will be drawn that the president performed his duty; and, of course, taking it for granted that there were no other instructions than those of the d of january, that the president must have seen those instructions, and consequently have known that mr. erskine had not power to conclude the arrangement. all his argument went to raise a structure to induce a belief in this house, and in the public at large, that this knowledge must have been in possession of the president. the gentleman, at the same time, professes the utmost regard and respect for mr. madison. this, i confess, is following the direction of the poet, who says: "damn with faint praise, assent with civil leer; and, without sneering, teach the rest to sneer." but let us inquire if the president had any knowledge that mr. erskine had no full power; for if i show, beyond all doubt, that the president did not know it, all this insidious fabric, which is designed to produce so many delusions, will vanish at once. i think it is to be presumed that the president had no knowledge that mr. erskine had not full powers, because he entered into the arrangement. what object could he have in view which should induce him to conclude an arrangement, except with full confidence of its being carried into effect? not to get rid of the embargo--that had long before been interred by its fathers with a truly christian spirit. not to get rid of the non-intercourse--because the moment the arrangement was disavowed, the president breathed life and spirit into that act, and gave it renewed existence. it was not from any hostile disposition to england, because he could have no reason to wish for a war. and because, if he had desired a war with that country, he had no occasion to seek a pretext therefor, inasmuch as long antecedents, and up to the very time of making the arrangement, the causes for war against great britain were great and numerous, as has been agreed by all parties. if not to get rid of the embargo, nor of the non-intercourse, nor for war, what object could he have, with such knowledge as has been imputed to him, not expressly, but by inference, in making the arrangement of april? will gentlemen be good enough to condescend so far as to assign some object that the executive could have had in view from such conduct? for it is not to be presumed that men, in or out of office, act without motive and without object. therefore, hearing no reason assigned why the president should act thus preposterously, as it is attempted to be insinuated he did, by those in opposition, it would be reasonable to conclude that he had no such knowledge. but, in opposition to this insinuation, also, you have the solemn declaration of the president of the united states, through the secretary of state. humiliating in the extreme must it be to hear this solemn asseveration questioned, even in a side-way, in order to support the insolence of a british minister! was it not enough that the country has been enabled to endure, in order to secure the great object of remaining in peace, insult after insult, outrage after outrage, and even that the government should be insulted by foreign diplomatic characters, without doubts and suspicions being insinuated by members of this house? pray, sir, let me ask this house, or the whole of the united states, what the president of the united states has ever done in any official character, among the many which he has filled with honor to himself and reputation to his country, that the correctness of his declarations, made through his minister of state, should be disputed? but i might suffer the humiliation of going still further into the subject. we have the word of the recalled minister, if that be considered more conclusive by gentlemen than that of the president of the united states, that he did not communicate his instructions to mr. smith. we have, st. the presumption that the executive had no knowledge of mr. erskine's instructions, because he could have no object in view in concluding an arrangement with that knowledge; d. we have his declaration to that effect through the secretary of state; d. we have the declaration of the minister, whose act was disavowed, to the same effect. what have we to destroy this proof? the deceptive, poisonous insinuations of mr. jackson. mr. erskine repeatedly declared that he had ample powers. on the news being received during the last session of the issuing of the order of the th april, he declared that he had no doubt his arrangement would be carried into effect. he, to the last moment, declared that he acted in the spirit, if not in the letter, of his several letters of instructions. how, therefore, was it possible for the president to receive information from mr. erskine that he was not invested with competent power, when mr. erskine himself declared and believed he was, and acted accordingly. from these considerations i apprehend it most clearly appears that the president of the united states had not a knowledge, neither was it his duty to have had a knowledge that mr. erskine did not possess powers to make the arrangement which he did. tuesday, december . two other members, to wit: from massachusetts, benjamin pickman, jr.; and from virginia, william a. burwell, appeared, and took their seats in the house. thursday, december . _conduct of the british minister._ the house again resumed the consideration of the report of the committee of the whole on the resolution from the senate approving the conduct of the executive in refusing to receive any further communications from francis j. jackson. the motion for indefinite postponement being still under consideration-- mr. stanford said, so many were the objectionable features of the present resolution before the house, he should vote for its indefinite postponement, and with permission of the house he would give his reasons for his vote. in the first place, he thought the language and style of the resolution highly objectionable, and calculated to render that which was already bad enough still worse; that it was, in the second place, a strange innovation upon all former practice and usage under our present government; and lastly, that it was clearly unconstitutional. thus much he should endeavor to show, and trusted he would be able to do it to the satisfaction of the house. mr. s. then premised that he had disapproved the introduction of the resolution of approbation at the last session; that he considered unnecessary; but the present he considered not only unnecessary, but even pernicious. that was a pacific one; this belligerent in all its aspects. he had suggested a mode to one or two gentlemen, of getting rid of that one, if they had thought proper, and in which case he would have contributed his vote to have got clear of it. but, had the question been put in a direct form, he should have differed from his colleague, (mr. macon,) inasmuch as he should have voted for it. he could not have done honestly otherwise, as he had most cordially approved the arrangement made by our government with mr. erskine. further, that as respected the rejection of mr. jackson, he thought entirely with his colleague, that he might well have been dismissed on the receipt of his first letter. he tells us for what he had been sent and commanded to do. in the case of the chesapeake, to make "declarations" and to receive counter "declarations" simultaneously. in other words, for the arrogance, insults, and murders, we had borne and suffered, he came to stipulate atonement, if we would stipulate a sort of counter atonement at the same time. stipulation for stipulation, at any rate. it had "_not appeared to his majesty_ necessary to command him to propose to our government any formal agreement" to take place of the rejected one. for the matter, said mr. s., of mr. jackson's instructions, much rather than for the manner of his negotiation, might the communication have been cut off with him. both matter and manner were, to be sure, objectionable, but the former, in his estimation, formed much the most solid ground of dismissal. it was but too obvious the mission of mr. jackson would end as the former one had done. that he did not come to propitiate us was but too manifest. while the resolution before us, sir, affects to support the executive government against insult, and language "highly indecorous," it descends into a style of expression, itself more culpable and degrading; unworthy, indeed, of the country and the dignity of its government. it was a flattering truth to know that in the style of diplomatic correspondence the american side of the question suffered not in comparison with that of any other. in the late, as well as former instances, the advantage has been calculated, as he presumed, to inspire every american bosom with just sentiments of pride. had it, therefore, been recommitted, as his colleague (mr. macon) had advised, he had no doubt it could have been amended, and rendered more worthy of consideration as a state paper, than it is likely to be in its present dress and form. besides, mr. speaker, if the measure be intended to have any effect, it must be a bad one. it looks toward war. already are our difficulties with great britain critical enough, but if gentlemen wish war, the thing is altogether appropriate to its end; well calculated not to support, but to thwart the pacific views and intentions of the executive. we may, in this way, foreclose the door of amicable negotiation which the executive by his first message showed us he had kept open. if rudeness of expression had been resorted to on the part of the british minister, in his correspondence with our government, had it not been repelled on their part? had they not amply redressed the insult of the individual? it might well afford some consolation to ourselves and the country, if other wrongs and insults have been even as well repaired as this. besides the murder of pierce, the more horrid murders on board the chesapeake, the continuation of impressments for years, we have had instances, more than one, it is said, of other ministers conspiring with your conspirators, menacing you with war, and putting your government at defiance, here in the ten miles square, and the sensibility of congress had never before been awakened to a resolution of this kind in defence of the executive. the truth is, sir, it never needed it, nor does it now. we have, in very deed, mr. speaker, refined upon the more substantial insults we have suffered, till we have literally reduced it to a _war of words_. it is the _expressions_ of the individual we are combating, and pledging the whole force of the country to protect the president against the consequences of, and not the more palpable injuries received. would to heaven, sir, such a resolution had not been brought forward! it is unworthy of us--unworthy of the political professions we heretofore made, even those made at our last session. that a resolution of approbation, mr. speaker, is against all example for the last eight years; that it is an innovation upon all usage and practice, reference need only be had to the speeches of gentlemen during the last session. they afford the most ample proof. they were then unwilling to pour out the oil of adulation upon the executive head. it was deemed unnecessary, anti-republican, to do so. he hoped gentlemen understood him. he was using their own language upon that occasion, and not his own. he borrowed it for its excellence and fitness upon the present occasion. such language conveyed his sentiments _then_, and _still did_; and, for his part, he could not comprehend how it could be correct then, and now the reverse of correct. some gentlemen on the floor perfectly remembered that when mr. jefferson came into the presidency, eight years ago, he changed the mode of personal address into that of written message. "in doing this," said he, in his first message, "i have had a principal regard to the convenience of the legislature, to the economy of their time, to their relief from the embarrassment of immediate answers on subjects not yet fully before them, and to the benefits thence resulting to the public affairs." all acquiesced in this new course, and from that time to the late instance mentioned, no time had been wasted in pouring back the oil of adulation or approbation, in any form, on the executive head. the only instance which could be cited during the last eight years, was found incidentally incorporated in a resolution relating to the navigation of the mississippi. the words were, "and relying with, perfect confidence on the vigilance and wisdom of the executive." this, then, was the only drop of this oil which the last administration produced, and has been called up at this first ordinary session of a new administration to form an example to follow; or rather, might we not say, to resume the exploded practice of former times, and thus echo back messages in this new form of joint resolution. but what was the style in which gentlemen spoke at our last summer session, when the subject of approbation was then before us? the language of one was, if it were the object to bring before the house a discussion upon the message of the president, and to return an answer to his excellency's most gracious message, he should certainly be opposed to it. if there had ever been a particular part of the former administration which had met the approbation of the republicans generally of this country, it was the discontinuance of the practice. another had told us that he was "opposed to a deviation from what he conceived to be the duty, and becoming the dignity of the house." he thought the house had nobler duties to perform than passing abstract resolutions, out of which no legislative act is contemplated, merely for the purpose of pouring the oil of adulation upon the head of the chief magistrate. and again, the gentleman from pennsylvania, (mr. findlay,) whose opinions are always so much relied upon and respected in this house, and he, mr. s., trusted by few more sincerely than himself, had, upon that occasion, with singular happiness and force, spoken thus: "law," said the gentleman, "is the only language of a legislature. it is the only language that can command obedience and respect. any equal number of citizens met in a tavern, and there passing a resolution of approbation, would have equal force with such a resolution passed in this house, and would be more in character. they are acting without authority from the constitution or the rules of the house." it would be for that gentleman to tell us, to tell the house, and he would beg the gentleman's pardon for the particular request--but he must request that he would take the occasion to let us all know how his doctrine then is now to be got over. for his own part, he could not comprehend how right and wrong could change their respective sides in so short a time. his colleague, (mr. macon,) in referring to former times, had expressed some doubt whether the majority were the same party now they were then. he felt no doubt himself they were the same; but there was no room to doubt, from the present question itself, they had undergone some strange modification since former times. the doctrines then must be well remembered by him, yourself, mr. speaker, and a few others on this floor. the advocates of this sort of adulation must go back beyond the times of the late and last administration, if they would introduce the fashion again. at the opening of the fifth congress, in the answer of this house to the speech of the president, these words are used: "we cannot omit to testify our approbation of the measure, and to pledge ourselves that no considerations of private inconvenience shall prevent, on our part, a faithful discharge of the duties to which we are called." and again, this sentence: "whilst we view with great satisfaction, the wisdom, dignity, and moderation, which have marked the measures of the supreme executive of our country in its attempt to remove, by candid explanations, the complaints and jealousies of france, we feel the full force of that indignity which has been offered our country in the rejection of its minister." this language was too much in the style of adulation for us then to brook, and our names, sir, stand recorded together against it. let gentlemen compare for themselves. it is the peculiar misfortune, sir, of this system, if again to be revived, that the right of approbation fully implies the right of disapprobation and censure; and during the same administration of which we are speaking this right of disapproving and censuring was also attempted to be exercised. the resolution was introduced at the first session of the sixth congress, by a gentleman then from the city of new york, (mr. livingston,) in the case of jonathan robbins. the same gentleman is occasionally present here at this time, and seems yet to be a stickler for judicial decision, and still thinks the executive, against an individual, matchless odds. the part of the resolution alluded to, runs thus: "that the decision of those questions by the president of the united states against the jurisdiction of the courts of the united states, in a case where those courts had already assumed and exercised jurisdiction, and his advice and request to the judge of the district court, that the person thus charged should be delivered up, provided, only, such evidence of his criminality should be produced as would justify his apprehension and commitment for trial, _is a dangerous interference of the executive with judicial decisions_." hence, then, sir, it might be easily seen from a practice of this sort, that a whole session might be wasted without doing any part of the public business. the thing would be endless. in the fourth congress, on a subject of a call for papers in relation to the british treaty, an unhappy difference arose between this house and the executive. general washington was the president. his reply to the house was, "that a just regard to the constitution, and to the duty of his office, forbid a compliance with their request." the house, again by resolution, asserted their right, disclaiming, however, at the same time, any agency in making treaties. notwithstanding the violence and passion of the moment, this house did not then think they had any right to meddle with the making of treaties; but now it would seem the present house were disposed to join the senate in this sort of interference in the negotiations of the executive to form a treaty. in all the cases alluded to, sir, it should be distinctly kept in view, that each house had acted for itself in voting their approbation and homage to executive speeches and proclamations. he had reference to the proclamation of neutrality by general washington. this was the first time congress ever legislated approbation before. mr. quincy.--it is not my intention, mr. speaker, to offer any common-place apology for the few observations i shall submit to the house on the subject now under consideration. such is the character, and such the consequences of these resolutions, that no man, who had at heart the honor and happiness of this country, ought to continue silent, so long as any topic of illustration is unexhausted, or any important point of view unoccupied. it is proposed, sir, that this solemn assembly, the representative of the american people, the depositary of their power, and in a constitutional light, the image of their wisdom, should descend from the dignity of its legislative duties, to the task of uttering against an individual the mingled language of indignation and reproach. not satisfied with seeing that individual prohibited the exercise of his official character, we are invited to pursue him with the joint terrors of legislative wrath, couched in terms selected to convey opprobrium and infix a stigma. "indecorum," "insolence," "affront," "more insolence," "more affront," "direct, premeditated insult and affront," "disguises, fallacious and false:" these are the stains we are called upon to cast; these the wounds we are about to inflict. it is scarcely possible to comprise, within the same compass, more of the spirit of whatever is bitter in invective, and humiliating in aspersion. this heaped up measure of legislative contumely is prepared; for whom? for a private, unassisted, insulated, unallied individual? no, sir. for the accredited minister of a great and powerful sovereign, whose character he in this country represents, whose confidence he shares; of a sovereign who is not bound, and perhaps will not be disposed to uphold him, in misconduct; but who is bound, by the highest moral obligations, and by the most impressive political considerations, to vindicate his wrongs, whether they affect his person or reputation, and to take care that whatever treatment he shall receive shall not exceed the measure of justice, and above all, that it does not amount to national indignity. important as is this view of these resolutions, it is not their most serious aspect. this bull of anathemas, scarcely less than papal, is to be fulminated, in the name of the american people, from the high tower of their authority, under the pretence of asserting their rights and vindicating their wrongs. what will that people say, if, after the passions and excitements of this day shall have subsided, they shall find--and find i fear they will--that this resolution is false, in fact; that a falsehood is the basis of these aspersions upon the character of a public minister? what will be their just indignation, when they find national embarrassments multiplied, perhaps their peace gone, their character disgraced, for no better reason than that you, their representatives, following headlong a temporary current, insist on making assertions, as they may then, and i believe will, realize to be not authorized by truth, under circumstances, and in terms, not warranted by wisdom? let us not be deceived. it is no slight responsibility which this house is about to assume. this is not one of those holiday resolutions, which frets and fumes its hour upon the stage and is forgotten forever. very different is its character and consequences. it attempts to stamp dishonor and falsehood upon the forehead of a foreign minister. if the allegation itself be false, it will turn to plague the accuser. in its train will follow severe retribution, perhaps in war; certainly in additional embarrassments, and most certainly, in worse than all, the loss of that sentiment of self-esteem, which to nations, as well as individuals, is "the pearl of great price;" which power cannot purchase, nor gold measure. in this point of view, all the other questions which have been agitated in the course of this debate dwindle into utter insignificance. the attack or defence of administration, the detection of fault, or even the exposure of crime, are of no importance when brought into competition with the duty of rescuing this house and nation from the guilt of asserting what is false, and making that falsehood the basis of outrage and virulence. i avoid, therefore, all questions of censure or reproach on either the british minister or the american secretary of state. i confine myself to an examination of this resolution, particularly of the first branch of it. this is the foundation of all that follows. i shall submit it to a rigid analysis, not for the purpose of discovering how others have performed their duties, but of learning how we shall perform ours. the obligation to truth is the highest of moral and social duties. it is remarkable, mr. speaker, that of all the gentlemen who have spoken, no one has taken the precise terms of the resolution as the basis of his argument, and followed that course of investigation which those terms naturally prescribe. yet the obvious and only safe course, in a case of such high responsibility, is first to form a distinct idea of the assertion we are about to make, and then carefully to examine how that assertion is supported, if supported at all, by the evidence. with this view i recur to the resolution, in the form in which it is proposed for our adoption, and make it the basis of my inquiries. [the resolution.] this part of the resolution, it will not be denied, is the foundation of the whole. for if no such "idea was conveyed" in the letter of the d of october, then there could be no "repetition" of that idea, in the letter of the th of november; and if in the former part of his correspondence mr. jackson had made no such "insinuation," then the assertion in this letter that he had made none, was perfectly harmless and justifiable. this part, therefore, includes the pith of the resolution. if we analyze it, we shall find that it contains two distinct assertions. first, that the expressions alluded to convey a certain idea. second, that this idea, so conveyed, is indecorous and insolent. here again we are enabled to limit the field of our investigation. for, if no such idea, as is asserted, was conveyed, then the inquiry, whether such idea is indecorous and insolent, is wholly superseded. the true and only question, therefore, is _whether the expressions alluded to, do convey the asserted idea_. i place the subject in this abstract form before the house to the end that, if possible, we may exclude all those prejudices and partialities which so naturally and imperceptibly bias the judgment. in the light in which it now stands, it must be apparent to every one who will reflect, that the question has, so far as it respects the principles on which our decision ought to proceed, no more to do with the relations between great britain and the united states, than it has with those between the united states and china, and has no more connection with mr. francis j. jackson and mr. robert smith, than with the late charles of sweden, and the old duke of sudermania. it is a simple philological disquisition, which is to be decided by known rules of construction. the only investigation is, touching the power or capacity of certain terms to convey an alleged idea. however illy suited a question like this may be for the discussion of an assembly like the present, yet if we would be just to ourselves and the people, we must submit to an examination of it, in that form in which alone certainty can be attained. it is only by stripping the subject of all adventitious circumstances, that we can arrive at that perfect view of its nature which can satisfy minds scrupulous of truth, and anxious concerning duty. it is only by such a rigorous scrutiny that we shall be able to form that judgment which will stand the test of time, and do honor to us and our country when the passions of the day are passed away and forgotten. the natural course of inquiry now is, into the idea which is asserted to be conveyed, and the expressions which are said to convey it. concerning the first there is no difficulty. the idea asserted to be conveyed is, "that the arrangement made between mr. erskine and mr. smith was entered into by the american government, with a knowledge that the powers of mr. erskine were incompetent for that purpose." it would save a world of trouble if the expressions in which this idea is said to be conveyed were equally easy of ascertainment. but on this point, those gentlemen who maintain this result are far from being agreed. some being of opinion that it is to be found in one place, some in another, and others again assert that it is to be found in the whole correspondence taken together. never was an argument of this nature before so strangely conducted. gentlemen seem wholly to lay out of sight that this resolution pledges this house to the assertion of a particular fact, and expresses no general sentiment concerning the conduct of jackson, or the conduct of his government. yet, as if the whole subject of british relations was under discussion, they have deemed themselves at liberty to course through these documents, collect every thing which seems to them indecorous, insolent or unsuitable in mr. jackson's language, and add to the heap thus made the whole list of injuries received from great britain--impressments, affair of the chesapeake, murder of pierce--and all this, for what purpose? why, truly, to justify this house in making a solemn asseveration of a _particular fact_! as if any injury in the world could be even an apology for the deliberate utterance of a falsehood. let the conduct of mr. jackson, or of great britain, be as atrocious as it will, if the fact which we assert do not exist, we and this nation are disgraced. it is evident, then, that irksome as such a task is, it is necessary that we should submit to a precise inquiry into the truth of that to which we are about to pledge our reputation and that of this people. in our investigation, let us follow the natural course that is pointed out in the resolution. this alleges that the obnoxious expressions are contained in a letter of the d of october, and to this limits our assertion. in this letter, therefore, either directly, or by way of reference to some other, this obnoxious idea or insinuation must be found. for if it be not in this, even if it should be contained in other parts of the correspondence, which is not, however, pretended, still our assertion would be false. concerning this letter of the d of october, i confidently assert, without fear of contradiction, that the obnoxious idea, if contained in that letter, is conveyed in the paragraph i am now about to quote. no man has pretended to cite any part of this letter, as evidence of the asserted insult, except the ensuing, and although there is not a perfect coincidence in opinion as to the particular part in which it resides, yet all agree that it lurks somewhere in this paragraph, if it have any dwelling-place in this letter. [the paragraph.] i have quoted the whole paragraph because, in that obscure and general mode of argument in which gentlemen have indulged, it has been read as that entire portion in which the insult is conveyed. it is difficult to conceive how some parts of this paragraph can be thought to convey any insult. however, in prosecution of my plan, i shall first exclude all those parts in which the obnoxious idea cannot be pretended to exist, and then limit my investigation to that part in which it must exist, if, in the letter of the d of october, it be conveyed at all. with respect to the first sentence in this paragraph, i say confidently that the insult is not contained there. it is simply a declaration of the causes of the disavowal, so far from including the obnoxious idea of a knowledge in our government of the incompetency of erskine's powers, that in a manner it excludes that idea, by enumerating violation of instructions and want of authority as the only causes of the disavowal. in the first sentence, then, the insult is not. i pass by the second, as it will be the subject of a distinct examination hereafter. the third and fourth sentences it will not even be pretended convey this obnoxious idea. they simply acknowledge the frequency of graduated instructions, and assert the fact that mr. erskine's were not of that character. in this there is no insult. as little can it be pretended to exist in the fifth sentence. it merely asserts that mr. smith "_already_," that is, at or before the time mr. jackson was then writing, is acquainted with the instructions, (a fact not denied, and not suggested to be an insult,) and that the fact of these instructions being the only ones, mr. smith knows _from the information of mr. jackson_--an assertion, which so far from intimating the obnoxious idea of a knowledge in mr. smith at the time of the arrangement with mr. erskine, that it conveys a contrary idea, by declaring that he was indebted for it to his (mr. jackson's) information. here, then, the insult is not. with respect to the last sentence in this paragraph, the only assertions it contains, are the fact that the terms accepted were not contained in the instructions, and the evidence of this fact derived from the statement of erskine that those acceded to were substituted by mr. smith in lieu of those originally proposed. in all this, the knowledge of mr. smith of the incompetency of mr. erskine's powers is not so much as intimated. indeed, no one has pretended directly to assert that they have found it in the parts of this paragraph, from which i have thus excluded the obnoxious idea. yet, as the whole has been cited, and made the basis of desultory declamation, i thought it not time lost to clear out of the way all irrelevant matter, and to leave for distinct examination the only sentence of this paragraph in which the insult lurks, if it has any existence in this letter. this point we have now attained. and as little inclined as gentlemen may be to precise investigation, they must yield to it. i say, therefore, confidently, and without fear of contradiction, that if the assertion contained in this resolution be capable of justification by any part of the letter of the d of october, it is by the following, the only remaining sentence of the cited paragraph which i have not yet examined: "these instructions i now understand by your letter, as well as from the obvious deduction which i took the liberty of making in mine of the th instant, were, at the time, in substance made known to you; no stronger illustration, therefore, can be given of the deviation from them which occurred than by a reference to the terms of your agreement." the latter part of this sentence being merely a conclusion from the preceding part, and having no relation to the knowledge of our government at the time of the arrangement, will be laid out of consideration as being obviously wholly without the possibility of any agency in conveying the obnoxious idea. there remains only the preceding part of this sentence for the residence of the insult. here, if anywhere, it must exist. accordingly this is usually shown as the spot where the ghost of insinuation first appeared before the eyes of our astonished administration. here we shall again find it; unless, indeed, it were in fact a mere delusion of the fancy, formed of "such stuff as dreams are made." let us examine by way of analysis. [here mr. quincy analyzed the paragraph.] i have thus far proceeded by way of a strict analysis of every part of the correspondence, in which the insulting idea, asserted in this resolution, has been said to be conveyed. i have omitted no part which has been cited in support of this first resolution, and think that i have shown that it exists nowhere in the letter of the d of october, either in direct assertion, or by way of reference. and it is concerning what is contained in that letter alone, that the resolution under consideration makes assertion. the house will observe that, according to all rules of fair reasoning, it would have been sufficient for me to have limited myself to show the fallacy of the arguments of the advocates of this insult; it being always incumbent on those who assert the existence of any thing to prove it. i have not, however, thought my duty on so important an occasion fulfilled, unless i undertook to prove what the lawyers call "a negative," and to show, with as much strength of reasoning as i had, the non-existence of the idea asserted in this resolution; with what success, i cheerfully leave to the decision of such thoughtful men in the nation who will take the trouble to understand the argument. there is, however, a corroborative view of this subject, which ought not to be omitted. the insulting idea said to be conveyed is, that mr. smith had a knowledge, at the time of the arrangement, of the incompetency of erskine's powers, and this because such a knowledge was one of the essential circumstances which could only lead to a disavowal. now, it does happen that neither mr. erskine nor his government enumerate this knowledge of our government as one of those essential circumstances. on the contrary, they constantly omit it, when formally enumerating those circumstances. mr. canning places the disavowal, solely, on the footing of mr. erskine's having "acted not only not in conformity, but in direct contradiction to his instructions." mr. jackson, also, in his letter of the d, when formally enumerating the causes of the disavowal, says expressly, that the disavowal was "because the agreement was concluded in violation of that gentleman's instructions, and altogether without authority to subscribe to the terms of it." now, is it not most extraordinary, that after such formal statements, not including the knowledge of our government among the essential circumstances, that it is on this knowledge the british government intend to rely for the justification of their disavowal? i simply ask this question, if the british did intend thus to rely on the previous knowledge of our government, why do they always omit it in their formal enumerations? and if they do not intend thus to rely, in what possible way could it serve that government thus darkly to insinuate it? but as if it were intended to leave this house wholly without excuse in passing this resolution, mr. jackson expressly asserts, in this very letter of the d of october, that the information of that fact was derived from him, the knowledge of which, this resolution asserts, he intended to intimate was known at the time of the arrangement with erskine. for he specifically says: "i have had the honor of informing you that it (mr. erskine's instruction) was the only one by which the conditions on which he was to conclude were prescribed." now, if mr. jackson had remotely intended to intimate that mr. smith had a previous knowledge of that fact, would he have asserted that he was indebted to him (mr. jackson) for the information? conclusive as this argument is, there is yet another in reserve, which is a clincher. and that is, that this very knowledge which we propose solemnly to affirm mr. jackson intimated our government possessed at the time of the arrangement, it is, from the nature of things, impossible they should have possessed. the idea asserted to be intended to be conveyed is, a knowledge in our government that the arrangement was entered into without competent powers on the part of mr. erskine. now, the fact that mr. erskine's powers were incompetent, it was impossible for our government to know, except from the confession of mr. erskine. but mr. erskine before, at the time, and ever since, has uniformly asserted the reverse. so that, besides all the other absurdities growing out of this resolution, there is this additional, that it accuses mr. jackson of the senseless stupidity of insinuating as a fact, a knowledge in our government, which from the undeniable state of things it is not possible they should have possessed. mr. speaker, can any argument be more conclusive? . the idea is not conveyed by the form of expression. . mr. jackson, though expressly enumerating the only causes which led to a disavowal, does not suggest this. . mr. jackson expressly asserts the knowledge that these were the only instructions derived from him; of course it could not have been known previous to the arrangement. . had he been absurd enough to attempt to convey such an idea, the very nature of things shows that it could not exist. i confess i am ignorant by what reasoning the non-existence of an insinuation can be demonstrated, if it be not by this concurrence of arguments. before i conclude this part of the subject, it will be necessary to make a single observation or two, on the following passage in mr. jackson's letter of the th of november, for although our assertion has relation, in the part of the resolution under consideration, only to the letter of the d of october, yet this subsequent passage has been adduced as a sort of accessory after the fact. "you will find that, in my correspondence with you, i have carefully avoided drawing conclusions that did not necessarily follow from the premises advanced by me, and least of all should i think of uttering an insinuation, where i was unable to substantiate a fact. to facts, as i have become acquainted with them, i have scrupulously adhered." this the subsequent part of the resolution under debate denominates, "the repetition of the same intimation." but if the argument i have offered be correct, there was no such "intimation" in the preceding letters, and of course no repetition of it here. for if he had, as i think i have proved, in his former letters uttered no such insinuation as is asserted, then all the allegations in this paragraph are wholly harmless and decorous, neither disrespectful nor improper. "but this," says the gentleman from pennsylvania, (mr. milnor) "is conclusive to my mind, that mr. jackson did intend to insult, for if he had not would he have refrained from giving an explanation when it was asked?" that gentleman will recollect that the assertion of this house is as to the idea which mr. jackson has conveyed in the letter of the d, not as to the idea which he intended to convey. suppose he intended it, and has not done it, our assertion is still false. but will that gentleman seriously conclude, contrary to so obvious a course of argument, that he has asserted, or even intended to assert, this particular idea, merely because he does not choose to explain it? are there not a thousand reasons which might have induced mr. jackson not to explain, consistent with being perfectly innocent of the intention originally to convey it? perhaps he thought that he had already been explicit enough. perhaps he thought the explanation was asked in terms which did not entitle mr. smith to receive it. perhaps he did not choose to give this satisfaction. well that now is "very ungentlemanly," says the gentleman from pennsylvania, (mr. milnor.) i agree, if he pleases, so it was. but does that justify this resolution? because he is not a gentleman, shall we assert a falsehood? i briefly recapitulate the leading points of my argument. when mr. jackson asserts "that the substance of the instructions was known to our government," the expression cannot convey the obnoxious idea, because it is not pretended that, in those instructions, the existence of other powers was excluded. when he says, "you must have thought it unreasonable to complain of disavowal," the time of knowledge implied is confined by the structure of the sentence to the time of a disavowal known, and cannot be limited backwards to the time of arrangement made. it is also absurd to suppose that mr. jackson would intimate by implication the knowledge of our government of erskine's incompetency of powers at the time of arrangement, as an essential circumstance on which the king's right of disavowal was founded, and yet omit that circumstance in a formal enumeration; and lastly, it is still more absurd to suppose that he would undertake to insinuate a knowledge, which, from the nature of things, could not possibly exist. i have thus, mr. speaker, submitted to a strict and minute scrutiny all the parts of this correspondence which have been adduced by any one in support of the fact asserted in this resolution. this course, however irksome, i thought it my duty to adopt, to the end that no exertion of mine might be wanting to prevent this house from passing a resolution, which, in my apprehension, is pregnant with national disgrace, and other innumerable evils. friday, december . another member, to wit, from north carolina, james holland, appeared and took his seat. col. isaac a. coles. _breach of privilege._ mr. taylor, from the committee appointed to inquire into the circumstances alluded to in the letter of i. a. coles to the speaker of the house, made the following report: that, according to that order, they have taken into consideration the subject referred to them; that in making the proposed inquiry they have taken the depositions of the honorable james turner, a senator of the united states, and of mr. samuel sprigg, which depositions they beg leave to report to the house. from these depositions it was established, to the satisfactory belief of your committee, that mr. i. a. coles, without any immediate previous altercation or provocation, did assault and strike a member of this house, within the walls of the north wing of the capitol; that this act was done on monday, the th ult., about one o'clock p. m., and after this house had adjourned over to the following day. that, from the assertions of mr. coles, and from the actual admission of the member assaulted, your committee were satisfied that the provocation or supposed provocation which occasioned the attack did not arise from any thing said or any act done by the member of this house, in the fulfilment of his duties as a representative in the congress of the united states. your committee are of opinion that this latter circumstance may be received in extenuation, but cannot be admitted in justification of the act done by mr. coles; and, from all the circumstances of the case, they are of opinion that said assault and violence offered to the member was a breach of the privileges of this house. your committee further report, that they have considered the letter of mr. coles to the speaker of this house, together with another letter from mr. coles addressed to the chairman of your committee, (which they also beg leave to report to the house,) that these two letters, in the opinion of your committee, do contain acknowledgments and apologies on the occasion, which ought to be admitted as satisfactory to the house. they therefore recommend the following resolution: _resolved_, that any further proceeding in the above case is unnecessary. _to the hon. john taylor, chairman, &c._ sir: understanding that the declaration which i had the honor this morning to make before the committee, will be more acceptable if put in the written form, i hasten to comply with what i believe to be their wish, in tendering through them, to the house of representatives, the renewed assurance "that if i could have supposed that the circumstance alluded to in my letter to the speaker, would have been construed into a breach of the privilege of the house, it would not have occurred at the time and in the place where it unfortunately happened." with sentiments of great respect, i am your obedient humble servant, i. a. coles. _december , ._ ordered to lie on the table. _conduct of the british minister._ the house resumed the consideration of this subject. at four o'clock mr. livermore commenced a speech, but gave way for a motion to adjourn which was carried, to . saturday, december . a motion was made by mr. dawson, that the report made yesterday, on the occurrence between i. a. coles and a member of this house, and the documents accompanying the same, be printed for the use of the members: and the question being taken thereon, it was resolved in the affirmative--yeas , nays . the report and documents were referred to a committee of the whole on thursday next. _conduct of the british minister._ mr. rhea, of tennessee--mr. speaker, it is not deemed necessary in the observations i will make on the resolution under consideration, to take into view any relations of the united states with great britain or france, because it does not clearly appear that any exist, except in this, that the united states are suffering loss and damage. if there be any relations with great britain, as they respect the united states, they are negative and suffering; as they respect great britain, positive and active. be they what they may, they are not properly within the range of a discussion on this resolution, which merely respects the conduct of an ambassador extraordinary and minister plenipotentiary of his britannic majesty near the united states. how the relations, if there be any, between the united states and france are connected with the subject of this resolution, will require the greatest civilian, the most wise master of public law, to discover; the consideration of these subjects, except so far as mentioning only circumstances which have existed, will be omitted. neither does it appear very necessary to recur, in examining this question, in the view i intend to take of it, to writers or authorities, as they are called, on public law or laws of nations, because, if any time heretofore, there was a public law acknowledged and practised by all civilized nations, that law is, in these times, become obsolete and disused; and the great nations of the old world have severally adopted particular systems of law respecting other nations, adapted to their own several existing circumstances, and bottomed on principles different from those which heretofore were denominated principles of public law. when, therefore, in the course of these observations, said mr. r., i may use the words "public law," my intention is to express thereby an idea of some system named public law, not the law of nature, which, gradually becoming obsolete, has been very little, if any, in use since the commencement of the american revolution--a system which, notwithstanding it is often appealed to, if ever it did exist, is now only to be found in books, and not in practice. neither is it intended in this case to draw into notice any diplomatic proceedings many years heretofore transacted, by way of argument, in support of what i may say on the subject of this resolution; inasmuch as the truth and merits of it do rest and depend on the message of the president of the united states, and the documents accompanying the same, and the other documents relative thereto, which have been received from him since the commencement of this session of congress, together with some other documents relative to the arrangement of april last, made between the american government and the honorable david montague erskine, late ambassador extraordinary and minister plenipotentiary from his britannic majesty, near the united states. this resolution is not an answer to a message from the president of the united states; there are not in it any words of relation between it and a message evidencing an expression or intended direction of that nature; neither are there in it any words manifesting an intention to transmit it to him as an address; for these and other reasons, which, if necessary, might be mentioned, it does not appear that this joint resolution can, with any propriety, be named an answer or response to a message from the president, or an address to him. it may, therefore, be reasonably expected, that any objection raised against it, on the opinion of its being an answer to a message from the president, or an address to him, will not prevail. this resolution is not a declaration of war; it is predicated on a specified conduct of an ambassador extraordinary and minister plenipotentiary of his britannic majesty, near the government of the united states, and on the denial of the executive government of the united states to receive any further communications from him in consequence of that conduct. and it may be observed that, how ancient soever among nations the custom or usage of sending or receiving ambassadors, plenipotentiaries, and public ministers of that kind may be, the custom or usage, it is reasonable to believe, is bottomed only on the great principle of humanity, and does not impose a perfect obligation either to send such minister, or to receive him, or to continue him after being received; therefore, not to send an ambassador, plenipotentiary, or public minister--not to receive such minister--to recall such minister--or to refuse to receive any further communications from such minister, is not a just cause of war; and it follows that the acting or not acting, in either of the cases, is not a declaration of war. true it is, that the resolution states, that "the congress of the united states do solemnly pledge themselves to the american people, and to the world, to stand by and support the executive government in its refusal to receive any further communications from the said francis james jackson, and to call into action the whole force of the nation, if it should become necessary, in consequence of the conduct of the executive government in this respect, to repel such insult, and to assert and maintain the rights, the honor, and the interests of the united states;" but, it is to be observed, that that pledge goes only to the doing of certain things which may become necessary in consequence of the conduct of the executive government in respect to that thing which is alluded to. but if any gentleman is disposed to continue to this resolution the name of an answer to a message from the president, or address to him, or to call it a declaration of war, he certainly may give it any name he pleases; and i hope, said mr. r., that i may also have the liberty to give it a name that appears appropriate to it. [here mr. rhea entered into a close examination of the correspondence between the british minister and the american secretary of state, to show, _first_, the insult to the american government by charging it with falsehood; _secondly_, the falsity of that charge by showing that it was founded on false assumptions and continued:] the whole civilized world is a spectator in the discussion of this resolution; and all the civilized nations in the world are and will be anxiously desirous to know, whether the united states of america, after having hitherto, with impunity, suffered all the aggressions of great britain, and after having suffered great britain, with impunity, to impress thousands of their seamen, and retain them on board of their armed ships and vessels, and compelling them to fight against nations with whom the united states are at peace; after having suffered great britain, with impunity, to murder their citizens, and after having suffered great britain with impunity to attack their sovereignty, in case of the chesapeake frigate, will, after all these outrages and hostile acts, tamely, meekly, and patiently, submit and bow down to the lowest degree of debased degradation, and suffer francis j. jackson, ambassador extraordinary and minister plenipotentiary of his britannic majesty, with impunity, to abuse their executive government, and to impute to it with impunity the detestable charge of untruth. tuesday, january , . another member, to wit, from pennsylvania, robert jenkins, appeared, and took his seat in the house. wednesday, january . _trade to the baltic._ mr. burwell said that he had given to the subject of our foreign relations as much consideration as he was capable of doing, and digested some plan which appeared to him best adapted to the present situation of the country. it would be recollected, however, that they had seen in the papers that france either had blockaded or did contemplate the blockade of all the ports not embraced in the british orders; and they had seen in the papers a paragraph intimating that a project existed to close the northern ports against all vessels but those of france. he conceived it necessary to call for any information which by possibility might be in possession of the executive on this subject, as such information, if to be obtained, might have some influence upon his mind as to the course proper to be pursued; and therefore moved the following resolution: _resolved_, that the president of the united states be requested to lay before this house any information he may possess relative to the blockade of the ports of the baltic by france, and the exclusion of neutral vessels by russia, sweden, and denmark. the motion was agreed to without opposition, and mr. burwell and mr. gardner appointed a committee to wait on the president accordingly. _conduct of the british minister._ the house resumed the consideration of the unfinished business of yesterday, being the resolution from the senate approving the conduct of the executive in refusing to receive any further communication from francis james jackson, &c. the resolution was ordered to be read a third time. to-morrow was named as the day on which it should be read a third time, and negatived, ayes, . the resolution was then ordered to be read a third time to-day. mr. newton.--mr. speaker: it is with regret, sir, i feel myself constrained to offer some observations on the resolution from the senate now on its passage. i am not ignorant that i am trespassing on your patience, and that, at this late period of the discussion, i address you to no little disadvantage; but i derive, under such discouragement, great satisfaction in knowing that your politeness and indulgence are at all times the same. i lament, sir, that the discussion has not been confined to the subject which the resolution presents for consideration, but as i had no control over the debate, i am compelled to pursue it through the meanders it has taken. as silence on the observations which have been made, though on points foreign to the one in debate, may be ascribed to an acquiescence in their justness, i cannot refrain from apprising you that i hold myself bound to answer such as shall, in my judgment, demand an answer. this course will compel me to discuss points no ways related to the one before the house. i shall endeavor to atone for taking this range by giving to each subject a separate consideration, and by observing a due regard to brevity. with this apology, i hasten in the first instance to the discussion of the competency of mr. erskine's powers to conclude the provisional agreement of the th of april last. i put aside from this discussion the instructions of mr. erskine authorizing him to tender reparation for the attack on the chesapeake, because his power so to act has not been distinctly questioned. the gentlemen who have preceded me on the same side of the question have sustained, i trust to your satisfaction, and that of the house, the competency of mr. erskine's powers to make and conclude the arrangement of the th of april last. persuaded, as i am, that they have performed this task with great ability, i will not tire your patience by passing over the same ground, nor by citing the same authorities on which they relied to support their arguments. i will permit myself only to take up the discussion of the points which terminated their remarks. i will content myself with furnishing some authorities not pressed into service, in support of the positions taken by them. that mr. erskine was a minister plenipotentiary, cannot be denied; in that character he was received, and in that he acted until he was recalled, is equally true. the propositions made by him in that character were received and acted upon as the propositions of his government. the executive of the united states had no control over his private instructions; no right to demand an exhibition of them; they were given for the government of the minister's conduct. if he acted in contravention of his secret orders, over which his power was absolute, he became responsible to his sovereign for his non-observance of them; but his public acts must necessarily be binding and obligatory, originating, as they must be considered, in the general and avowed powers of the minister, exercised in conformity to his private instructions. if his secret instructions limit his general commission, he is bound honestly to apprise the government with which he is negotiating of the fact. he ought to say, to this boundary i can go; beyond it i cannot pass. to illustrate this doctrine, which i hold to be sound and correct, i will give as an instance the chaste conduct of mr. monroe and mr. pinkney, who, previous to affixing their signatures to the treaty concluded by them with the british commissioners, publicly apprised the commissioners that they had no authority to bind the government of the united states, as their instructions did not permit them to conclude a treaty which should not contain stipulations against impressments. the fate of that treaty is known. it was rejected. the british government could not complain, because it was previously informed that the ministers of the united states had no power to form such a treaty. mr. erskine never entertained a doubt but that his powers were competent to the formation of the arrangement of april last. he unhesitatingly declared, in submitting his propositions for suspending as to the united states the operation of the orders in council, that he was commanded by his majesty to submit them to the consideration of the executive of the united states. i will prove this statement by his letter of april , , and others, addressed to the secretary of state. he says: "the favorable change in the relations of his majesty with the united states, which has been produced by the act usually termed the non-intercourse act, passed at the last session of congress, was also anticipated by his majesty, and has encouraged a further hope that a reconsideration of existing differences might lead to their satisfactory adjustment. on these grounds and expectations, i am instructed to communicate to the american government his majesty's determination of sending to the united states an envoy extraordinary, invested with full powers to conclude a treaty on all points of the relations between the two countries. in the mean time, with a view to the attainment of so desirable an object, his majesty would be willing to withdraw his orders in council of january and november, , so far as respects the united states, in the persuasion that the president would issue a proclamation for the renewal of the intercourse with great britain, and that whatever difference of opinion should arise in the interpretation of the terms of such an agreement, will be removed in the proposed negotiation." in another letter, of april , he says: "in consequence of the acceptance by the president, as stated in your letter of the th instant, of the proposals made by me on the part of his majesty, in my letter of the same day, for the renewal of the intercourse between the respective countries, i am authorized to declare that his majesty's orders in council of january and november, , will have been withdrawn, as respects the united states, on the th day of june next." ( .) the above extracts from mr. erskine's letters leave us in no suspense as to the opinion he had formed of his instructions. in this settled belief that he had conformed strictly to the instructions of his court, we find him so late as june , , when he notified to the secretary of state the new order in council issued on the th of april last. in this letter he says: "in consequence of official communications sent to me from his majesty's government, since the adoption of that measure, i am enabled to assure you that it has no connection whatever with the overtures (of the th of april, ) which i have been authorized to make to the government of the united states, and that i am persuaded that the terms of the agreement so happily concluded by the recent negotiation, will be strictly fulfilled on the part of his majesty. the internal evidence of the order itself would fully justify the foregoing construction, and, moreover, it will not have escaped your notice, that the repeal has not thereby been made of the orders of the th of january, , which, according to the engagement i have entered into on the part of his majesty, is to be abrogated with the other orders, in consequence of the adjustment of differences between the two countries, and the confidence entertained of a further conciliatory understanding." thus it appears that mr. erskine, from communications, subsequent to the th of april, from this government, is decidedly of opinion that he acted within the pale of his instructions. his language is free from ambiguity. he says: "in consequence of _official communications_ sent to me from his majesty's government, since the adoption of the order of the th of april, i am enabled to assure you it has no connection whatever with the terms of agreement concluded by the recent negotiation." nothing can be clearer than that his opinion was made up on a full consideration of all the instructions received by him from his government. this must be evident to the most superficial observer on reading the following extract from a letter of the th august, , addressed by him to the secretary of state. it is as follows: "under these circumstances, therefore, finding that i could not obtain the recognitions specified in mr. canning's despatch of the d of january, (which formed but one part of his instructions to me,) in the formal manner required, i considered that it would be in vain to lay before the government of the united states the despatch in question, which i was at liberty to do _in extenso_, had i thought proper. but as i had such strong grounds for believing that the object of his majesty's government could be attained, though in a different manner, and the spirit, at least, of my several letters of instructions be fully complied with, i feel a thorough conviction on my mind that i should be acting in conformity with his majesty's wishes, and, accordingly, conclude the late provisional agreement on his majesty's behalf with the government of the united states." the british government could not, from this view, disavow the act of its minister without incurring, and that justly, the charge of bad faith. to give support and nerve to this inference, i will read a passage from an author of great celebrity, _burlamaqui_. the author says: "if he who has a commission to treat has kept within the bounds of the power annexed to his office, though he acts contrary to his private instructions, the sovereign is to abide by what he has done; otherwise, we could never depend on engagements contracted by proxy." this authority is full, and in point; it covers the whole ground; it leaves no fissures through which crafty politicians can make an escape. on the reputation of the british government it fixes a blot which nothing short of the power of time can efface. past transactions are worthy of remembrance, and sometimes of repetition. the chameleon may take the hue of surrounding objects, but his change of color does not new-model his figure, form, or character. let us, for a moment, bring to our recollection the occurrences which took place, and the orthodox opinions which were held, at the time when the honor and dignity of this nation were deeply wounded, (a wound not yet healed,) in the attack of the chesapeake; when the blood of american citizens was wantonly shed, and when the british squadron, after the commission of an act so atrocious, in violation of the jurisdiction of the united states, anchored in hampton roads and interrupted the regular communication between norfolk and other places. after having taken a review of facts, let us compare the opinions of that day with those subsequently delivered; and, by the standard of consistency, test them. the president, soon after the commission of those outrages, issued his proclamation, interdicting the entrance of the waters of the united states to the public armed vessels of great britain. that act of the president was considered as just and proper, as flowing from moderation and wisdom. the propriety of it was defended on the declaration to the executive by mr. erskine, that it was his firm belief that admiral berkeley had acted without orders. keep in force the proclamation, was the language of that memorable day, until reparation, ample and satisfactory, should be made. such was the state of the public mind. mr. rose arrived; his mission, instead of having the salutary tendency of removing the irritations excited, was eminently calculated to nurture and increase them. insults were added to injuries. before he would deign to make known to the president the nature and extent of the reparation he was authorized to offer, he demanded the revocation of the president's proclamation; in plain terms informing this nation that its government should make concessions to his majesty for using precautionary measures against the lawless acts of his officers, as a prerequisite to a tender of the reparation his majesty had condescended through him to offer. this new mode of redress proving no ways satisfactory, mr. rose's mission terminated. no sooner was it known that the negotiation with mr. rose proved abortive, in consequence of the inadmissible demands made by him, as already stated by me, than the president was openly accused as being the cause of it, by adhering to a "mere punctilio." thus, sir, we see, that no republican president can do right, when his actions are viewed through the medium of party spirit. mr. stanley said he did not flatter himself he could add any thing to the information which the house already possessed on this subject. yet, as a measure was about to be adopted, which, without the possibility of yielding any advantage, would, in his opinion, fix a stain on the national character, and put at hazard the peace and prosperity of the country, he felt impelled by the imperious call of duty, to raise his feeble voice against it. permit me here, said mr. s., to express the surprise and regret with which i have heard observations from those who support the resolution, which, having no connection with the resolution itself, are calculated, if not intended, to excite the passions of the house or of the people; to furorize the public mind; to mislead our judgments in deciding the question, and to obtain a result rather from passion than reason. i allude to the repeated recital of british outrages, the bombardment of copenhagen, and the attack on constantinople. a calm discussion of the question itself, would probably lead to as correct a decision, and be not less honorable to the american congress. the danger of foreign influence has been mentioned to us, by way of caution, i presume. a solicitude on this point can be but commendable, though i hope unnecessary. it may be the fate of this country to be cursed with men whose ill-directed ambition, and predominant selfish views, lead them to support the interest and the designs of foreign nations, though adverse to the interests and honor of their own. if such there be, let them be marked as objects of suspicion, scorn, and contempt. it has also been the fate of other countries, and may be the misfortune of this, to possess in its bosom, and to cherish in its confidence, men, who from an equally base and corrupt self-love and ill-directed ambition, become supple courtiers, political sunflowers, cringing demagogues; who, worshipping the idol power, whether in the hands of a military commander, a protector, or a consul, tender an implicit obedience and united support to every measure which emanates from the executive, the source of office and profit. such men bring upon a country the curses of undue domestic influence. not to know and not to fear the dangers both of foreign and domestic influence, is to close our eyes on the light of history, and to disregard the testimony of ages. the states of greece, as the gentleman from virginia (mr. eppes) reminds us, fell from foreign influence; the unhappy kingdom of spain at this moment groans and bleeds from the same cause. and, sir, from domestic influence, rome had her cæsar, england her cromwell, and france now drags the chains of bonaparte. should it ever become the settled doctrine in this country, that the opinions and the measures of the executive are entitled to our prompt acquiescence and blind support; that, like the devoted soldier, a mere military machine, we are not to pause over a vote; that free discussion of the merits of the executive shall authorize suspicion of the purity of the citizen; the time will be fast hastening when a throne shall be erected upon the ruins of the constitution of the united states, and the name of america be added to the list of those republics which have "risen like the rocket, and fallen like the stick." whether either of these parties exist in this country, i need not at this time inquire; no circumstance could render such an inquiry in this place other than unpleasant. i have suggested the possibility of their existence, and their evils, with a view equally pure, i hope, with that of those who have before alluded to them, and to excite a caution which well merits the attention of the american people. associated in this house with gentlemen, all of whom, i am to presume, are actuated by the same love of country; who alike feel the obligations of honor, conscience, regard to the constitution and responsibility to our constituents--i cannot but believe they act on this occasion with motives as pure as my own. yet, sir, feeling myself bound by these high sanctions to pursue the course pointed out by my own judgment, and the dictates of my own conscience, i am compelled to declare, that i disapprove the conduct of the administration in the affair with mr. jackson, and that i am decidedly opposed to the resolution before us. from the view i have taken of the correspondence between mr. smith and mr. jackson, my mind is satisfied-- that the letters of mr. jackson do not contain the insult to our administration which is imputed to them by the resolution. that, if they did, the congress of the united states are not required either by duty or policy to interfere in the business--and that if they will interfere, the resolution under consideration is improper. on each of these points i will submit a few observations. in regard to the insult said to be contained in mr. jackson's letters, my remarks shall be brief, with no other reference to the letters already so often repeated, as to have become "dull as a tale twice told," than i may conceive necessary to be intelligible. the offensive idea "that the executive government of the united states had a knowledge that the arrangement lately made by mr. erskine in behalf of his government with the government of the united states, was entered into without competent powers on the part of mr. erskine for that purpose," is said in the resolution to be conveyed in mr. jackson's letter of the d of october, and to be repeated in that of the th of november. yet, as if it was on all hands admitted that no such idea could be found in these letters, all who have most anxiously desired to find it, have endeavored to establish it by recurring to mr. jackson's letter of the th of october, and there point us to that part of the letter, where mr. jackson, in reply to mr. smith's declaration, that an explanation was expected of the grounds of the disavowal by his britannic majesty of the arrangement made between mr. smith and mr. erskine, informs mr. smith, that he had seen with pleasure the forbearance of mr. smith, to complain of this disavowal, "inasmuch as you could not but have thought it unreasonable to complain of the disavowal of an act done under such circumstances as could only lead to the consequences that have actually followed." he adds, "it was not known when i left england whether mr. erskine had, according to the liberty allowed him, communicated to you _in extenso_ his original instructions; it now appears that he did not. but in reverting to his official correspondence, and particularly to a despatch addressed on the th of april to his majesty's secretary of state for foreign affairs, i find that he there states, that he submitted to your consideration the three conditions specified in those instructions, as the groundwork of an arrangement which, according to information received from this country, it was thought in england might be made, with a prospect of great mutual advantage. mr. erskine then reports, _verbatim et seriatim_, your observations upon each of the three conditions, and the reasons which induced you to think that others might be substituted in lieu of them. it may have been concluded between you that these latter were an equivalent for the original conditions; but the very act of substitution evidently shows that those original conditions were in fact very explicitly communicated to you, and by you of course laid before the president for his consideration. i need hardly add, that the difference between these conditions and those contained in the arrangement of the th and th of april, is sufficiently obvious to require no elucidation; nor need i draw the conclusion, which i consider as admitted by all absence of complaint on the part of the american government, viz: that under such circumstances his majesty had an undoubted right to disavow the act of his minister." as the offensive idea is alleged to be an allusion to the circumstances under which the arrangement with mr. erskine was concluded, which justified the king in disavowing it; intimated to be known to our administration at the date of this letter; it is necessary to search, from the evidence before us, what those circumstances were upon which the king justified his disavowal; these found, we shall be at no loss to fix mr. jackson's allusion, and then to inquire whether these circumstances thus alluded to, were in fact known to our administration. it appears from the documents before us, that the king's order in council of the th of may, , announcing the provisional agreement concluded by mr. erskine and the disavowal of it, assigns as the sole ground of the disavowal, that the said agreement "was not such as was authorized by his majesty's instructions." and mr. pinkney, on the th of may, informs mr. smith that the british minister, mr. canning, had in their interview on the th of may declared "that the british minister (mr. erskine) had acted in his late negotiation and engagements with you, not only without authority, but in direct opposition to the most precise instructions;" that these facts were communicated by mr. pinkney, and known to our administration before the arrival of mr. jackson, appears from the correspondence between mr. smith and mr. erskine in july and august. mr. jackson also, in his letter of the th of october, says that his government "with frankness, promptitude, and a most scrupulous regard to national honor, gave notice to the american minister in london of the disavowal, of the motives of it, and of the precautions spontaneously taken by his majesty to prevent any loss or injury accruing to the citizens of the united states from an agreement, however unauthorized, made in his majesty's name." and in his letter to mr. smith, d of october, explicitly declares "his majesty was pleased to disavow the agreement concluded between you and mr. erskine, because it was concluded in violation of that gentleman's instructions, and altogether without authority to subscribe to the terms of it." and to dispense with a recital of each particular in which the instructions were disregarded, mr. jackson adds, "these instructions i now understand by your letter, as well as from the obvious deduction which i took the liberty of making in mine of the th instant, were at the time in substance made known to you; no stronger illustration, therefore, can be given of the deviation from them which occurred, than by a reference to the terms of your agreement." we thus find the british government on every occasion, and through every agent, assigning the violation of instructions, and the want of authority in mr. erskine to conclude the agreement, as the sole ground of the disavowal, and relying on that ground, and no other, to shield them from the charge of perfidy. with this evidence before us; with the admission of mr. jackson "that the instructions were not made known _in extenso_;" with the correspondence of mr. smith and mr. erskine showing the knowledge of our administration of the instructions to mr. erskine and of the grounds of the disavowal of his arrangement prior to the arrival of mr. jackson in the united states, does it consist with candor and good sense; is it not a palpable violation of both, so to torture the language of mr. jackson in his letter of the th of october, in allusion to the circumstances which "could only lead to the disavowal," and to the knowledge of them by our administration, which prevented their complaints to him on his arrival, as to make them convey an idea that a distinct and different ground of disavowal existed than that which his government and himself had before repeatedly assigned; to impute to him the insinuation that the restricted authority of mr. erskine was known at the time of the arrangement, when he had explicitly declared "that the instructions were not made known _in extenso_," and thus to fix upon him the absurdity of contradicting himself? such construction, and such an imputation, in my opinion, is at war with every sound rule of construction, and every honorable principle of just and fair dealing. it is worthy the observation of those gentlemen who so clearly see an insult in this letter of the th of october, that they have found what had escaped the jealous perspicacity of mr. smith, and the patient research of the draughter of the resolution; since mr. smith, in his reply of the th of october, gives no intimation of any thing offensive in this letter, and the resolution confines the insulting idea to the letter of the d of october. we come now to the letter of the d of october, in which, according to the resolution, is contained the "insolent and indecorous expressions, conveying the idea that the executive government of the united states had a knowledge that the arrangement lately made by mr. erskine with the government of the united states was entered into without competent power on the part of mr. erskine." the offensive idea is said to be found in the following part of mr. jackson's letter: "i have no hesitation in informing you that his majesty was pleased to disavow the agreement concluded between you and mr. erskine, because it was concluded in violation of that gentleman's instructions, and altogether without authority to subscribe to the terms of it. these instructions, i now understand by your letter, as well as from the obvious deduction which i took the liberty of making in mine of the th instant, were at the time in substance made known to you; no stronger illustration, therefore, can be given of the deviation from them which occurred than by a reference to the terms of your agreement." there is no equivocation in this language. he says the instructions were made known _in substance_--an expression which from its very terms excludes the idea of being made known in full extent; and that it is true, as mr. j. here alleges, that the substance of mr. erskine's instructions were made known, appears from mr. smith's letter of the th of october. "certain it is that your predecessor did present for my consideration the three conditions which now appear in the printed document; that he was disposed to urge them more than the nature of two of them (both palpably inadmissible, and one of them more than merely inadmissible) could permit, and that on finding his first proposals unsuccessful, the more reasonable terms comprised in the arrangement respecting the order in council were adopted." and mr. erskine himself declared to his government, th of april, as stated by mr. jackson to mr. smith, th of october, and not questioned by him, "that he had submitted to the consideration of mr. smith the three conditions specified in his instructions, as the groundwork of an arrangement," and adds the reasons which induced mr. smith to think "that others might be substituted in lieu of them." these expressions of mr. jackson are unequivocal, free from obscurity, and cover no insinuation. they assert a single fact, the existence of which is established by the letters of mr. smith himself. to find in them a meaning "conveying the insolent and indecorous idea that our government knew of mr. erskine's restricted authority," is to give to language a signification different from that heretofore received, and to exert a strength of imagination to which i have no pretensions. but in the letter of mr. jackson of november th, is said, by the resolution, to be found "the still more insolent and affronting "repetition of the same insinuation. in the conclusion of this letter mr. j. complains, not intemperately, of the liberty mr. smith claimed of styling his remarks "irrelevant and improper," a freedom which i should regret to believe would be justified by our secretary's ideas of decorum. mr. jackson concludes in the words which are said to contain this offensive repetition of the imaginary insult: "you will find in my correspondence with you, that i have carefully avoided drawing conclusions that did not necessarily follow from the premises advanced by me, and least of all should i think of uttering an insinuation where i was unable to substantiate a fact." if mr. jackson had really uttered an unfounded insinuation, he here certainly repeats it, because he adheres to all he had before said, and retracts nothing. but if, as i believe, he had not made any insinuations, but had directly and obviously referred to facts which were either admitted or had been, substantially proved, and more especially as he has not anywhere made the insinuation charged, "that our government were acquainted with mr. erskine's restricted authority," the conclusion seems to be irresistible, that he could not here repeat an insinuation which he had not previously made. this paragraph obviously means that he had abstained from such an insinuation because "he was unable to substantiate the fact." nor can i conceive how this declaration could be offensive to mr. smith, unless received by him as presenting a contrast to his own deportment, in which case he owes his feelings to his own conscious sensibility. were it, however, otherwise, and if, instead of an _insinuation_ so hidden that a secretary of state only can discover it, mr. jackson had given a direct and unequivocal insult, the congress of the united states are not required either by duty or policy to interfere. the constitution has wisely created different branches of the government, committed to each its separate cares and duties, made each independent of the other, intending thereby to secure the separate deliberation and separate responsibility of each. to attain its blessings, these valuable objects of the constitution ought not to be defeated. to the president alone is given the power to receive ministers and to treat with them, and as in the course of this duty he becomes personally interested in the deportment of foreign ministers, if they demean themselves disrespectfully towards him, he is clothed with the power to break off intercourse with them at pleasure, and so far to suspend their ministerial functions. this power has been repeatedly exercised by our presidents, as the constitution intended it should be, upon their own responsibility. and it is the highest policy of this government, in order to obtain the advantages of the free judgment and decision of the president, so to conduct towards him that he should learn to act without fear of the censure of congress on the one hand, and without any hope on the other, that their countenance shall shelter his measures from scrutiny. this policy, and the strict inviolability of the executive power in all cases of treaty, were emphatically settled in the case of jay's treaty, in which the president, (whose independent example deserves more respect than it has met from his successors), standing upon his own responsibility refused to submit to the house of representatives any papers relating to that negotiation, except the treaty itself. yet if the plan proposed by these resolutions be adopted; if we by formal resolutions approve the conduct of the president in an affair so exclusively his own, as that of the rupture with mr. jackson, may we not on some future occasion, as observed by my honorable colleague, (mr. macon,) claim the right of censuring in matters equally within his sole and peculiar province? if, then, we are to interfere with executive duties, not merely as sycophants, applauding his every act, but as freemen condemning what we do not approve, the inevitable consequence must be, a conflict between the executive and legislative departments, in which the wounds of either can only be inflicted through the constitution; or (an issue equally fatal) the advantages intended to be derived from separate deliberation, distinct responsibility, and mutual jealousy and watchfulness of the separate departments disappear, in a miserable complaisance of acting by previous concert, and thus propping each other before the people. the question was then taken on postponement as moved by mr. gardenier, and negatived without a division. and at length, at half past five o'clock, the main question on the final passage of the resolution was taken, and carried--yeas , nays , as follows: yeas.--lemuel j. alston, willis alston, jr., william anderson, ezekiel bacon, david bard, burwell bassett, william w. bibb, adam boyd, john brown, robert brown, william a. burwell, william butler, joseph calhoun, matthew clay, howell cobb, james cochran, james cox, william crawford, richard cutts, john dawson, joseph desha, john w. eppes, william findlay, jonathan fisk, meshack franklin, barzillai gannett, gideon gardner, thomas gholson, jr., peterson goodwyn, william helms, james holland, benjamin howard, jacob hufty, robert jenkins, richard m. johnson, thomas kenan, william kennedy, john love, aaron lyle, robert marion, samuel mckee, alexander mckim, william milnor, john montgomery, nicholas r. moore, jeremiah morrow, thomas newbold, thomas newton, john nicholson, peter b. porter, john rea of pennsylvania, john rhea of tennessee, matthias richards, john roane, erastus root, john ross, ebenezer sage, thomas sammons, ebenezer seaver, adam seybert, dennis smelt, john smilie, george smith, henry southard, john taylor, john thompson, uri tracy, charles turner, jr., robert weakley, robert whitehill, and robert witherspoon. nays.--daniel blaisdell, james breckenridge, john c. chamberlain, william chamberlin, epaphroditus champion, martin chittenden, samuel w. dana, john davenport, jr., william ely, james emott, barent gardenier, thomas r. gold, william hale, nathaniel a. haven, jonathan h. hubbard, richard jackson, jr., herman knickerbacker, joseph lewis, jr., edward st. loe livermore, robert le roy livingston, nathaniel macon, archibald mcbryde, jonathan o. mosely, jos. pearson, benjamin pickman, jr., timothy pitkin, jr., elisha r. potter, josiah quincy, richard stanford, john stanley, william stedman, james stephenson, lewis b. sturges, jacob swoope, samuel taggart, benjamin tallmadge, jabez upham, killian k. van rensselaer, laban wheaton, ezekiel whitman, and james wilson. [on this vote were absent members, viz: messrs, campbell, clopton, cook,* crist, denning,* goldsborough, gray, heister, j. g. jackson, jones, _key_, lyon,* matthews, miller, t. moore, mumford,* nelson, randolph,* sawyer, shaw, sheffey, _j. smith_, s. smith, _troup_, van dyke,* _van horne_, and wynn*; of whom those marked (*) have not appeared in their seats during the present session, and those in _italic_ are known to be absent from the city.] the house then adjourned, at a quarter before six, after a session of nineteen hours, during the whole of which time the speaker presided in the chair with dignity and moderation, to friday next. friday, january . another member to wit, from delaware, nicholas van dyke, appeared, and took his seat in the house. _claim of elizabeth hamilton._ mr. johnson, from the committee of claims, made a report on the petition of elizabeth hamilton, referred on the th ultimo; which was read, and referred to a committee of the whole on wednesday next. the report is as follows: that it is stated by the petitioner, that her late husband, alexander hamilton, served as lieutenant colonel in the army of the united states during the revolutionary war; that, in common with other officers he was entitled to five years' full pay as commutation for half-pay during life; that her husband, being in congress at the time the resolution passed making this provision in favor of the officers of the revolution, in a letter to the secretary of war he relinquished his claim to commutation; and the petitioner prays for the amount of said commutation. it does not appear, from any evidence from the secretary of war or of the treasury, that the late colonel hamilton ever did relinquish his right to half-pay or commutation, nor can the committee believe that it would be proper or generous that such relinquishment should be relied on as a bar to a just claim upon the united states for meritorious services against the representatives of such claimant. it appears, from a letter from the secretary of the treasury, that the late colonel hamilton received pay as an officer up to the end of february, , and no later. and there is no evidence upon the treasury books, or books of the war office, whether at this or what period colonel hamilton resigned. the committee, however, have been furnished with a document, which induces the belief that colonel hamilton did not resign his commission until after the th day of october, , which document is in these words: "in pursuance of an act of congress of the th day of september, , lieutenant colonel hamilton is to take rank as colonel by brevet, in the armies of the united states of america. signed at princeton, october , , by elias boudinot, president," &c. the committee are of opinion, that the resolution of congress, upon a liberal construction, did not require actual service, and that the officer should be in the receipt of his pay to entitle him to commutation; but that he should have a commission, and be at all times liable to be called on to perform the duties of his station. the committee are confirmed in this opinion, when they recollect the situation of the united states and the army in the year , and in fact, from the capture of cornwallis and his army at little york, in the state of virginia, in the year . but this claim is, like all other claims of this description, barred by the statute of limitation. the following resolution is offered: _resolved_, that the prayer of the petition ought not to be granted. monday, january . two members, to wit: from new york, gurdon s. mumford, and from kentucky, matthew lyon, appeared, and took their seats in the house. tuesday, january . another member, to wit, from south carolina, richard wynn, appeared, and took his seat in the house. wednesday, january . a new member, to wit, david s. garland, returned to serve as a member of this house for the state of virginia, in the place of wilson carey nicholas, resigned, appeared, produced his credentials, was qualified, and took his seat. wednesday, january . _officers of the revolution._ mr. nelson, from the committee appointed on the twenty-fourth instant, made a report on the several petitions of the surviving officers of the late revolutionary army; which was read, and referred to a committee of the whole on monday next. the report is as follows: that, by a resolution of congress of the th of may, , all military officers who then were, or should thereafter be, in the service of the united states, and who should continue in service during the war, and not hold any office of profit under the united states, or any of them, should, after the conclusion of the war, be entitled to receive, annually, for the term of seven years, if they should live so long, one-half of the then pay of such officers: provided that no general officer of the cavalry, artillery or infantry, should be entitled to receive more than the one-half part of the pay of a colonel of such corps, respectively; and, provided that the said resolution should not extend to any officer in the service of the united states, unless he should have taken an oath of allegiance, and should actually reside within some one of the united states. that, by a resolution of congress of the th of august, , it was resolved that the half-pay provided by the aforesaid resolution of the th of may, , should be extended to continue for life. that, by a resolution of congress of the st of october, , it was provided that the officers who should continue in the service to the end of the war should be entitled to half-pay during life, to commence from the time of their reduction. that, by a resolution of congress of the th day of january, , all officers in the hospital department, and medical staff, thereinafter mentioned, who should continue in service until the end of the war, or be reduced before that time as supernumeraries, should be entitled to receive during life, in lieu of half-pay, the following allowances, viz: the director of the hospital, equal to the half-pay of a lieutenant-colonel; chief physician and surgeons of the army and hospital, and hospital physicians and surgeons, purveyor, apothecary, and regimental surgeons, each equal to the half-pay of a captain. that, by a resolution of congress of the d day of march, , it was provided that such officers as were then in service, and should continue therein until the end of the war, should be entitled to receive the amount of five years' full pay in _money_, or securities on interest at six per centum per annum, as congress should find most convenient, instead of the half-pay promised for life by the resolution of the st day of october, ; the said securities being such as should be given to the other creditors of the united states: provided it should be at the option of the lines of the respective states and not of officers individually in those lines, to accept or refuse the same; and provided, also, that their election should be signified to congress, through the commander-in-chief, from the lines under his immediate command, within two months, and through the commanding officer of the southern army, from those under his command, within six months from the date of the resolution. that the same commutation should extend to the corps not belonging to the lines of any particular state, and who were entitled to half-pay as aforesaid: the acceptance or refusal to be determined by the corps, and to be signified in the same manner, and within the same time, as above mentioned; that all officers belonging to the hospital department, who are entitled to half-pay by the resolution of the th of january, , might collectively agree to accept or refuse the aforesaid commutation, signifying the same through the commander-in-chief, within six months; that such officers as had retired at different periods entitled to half-pay for life, might, collectively, in each state of which they are inhabitants, accept or refuse the same; their acceptance or refusal to be signified by agents authorized for that purpose, within six months; that with respect to such retiring officers, the commutation, if accepted by them, should be in lieu of whatever might be then due to them since the time of their retiring from service, as well as what might thereafter become due; and that as soon as their acceptance should be signified, the superintendent of finance should be, and he was thereby, authorized to take measures for the settlement of their accounts accordingly, and to issue to them certificates bearing interest at six per cent.; that all officers entitled to half-pay for life, not included in the preceding resolution, might, also, collectively, agree to accept or refuse the aforesaid commutation, signifying the same within six months from the passage of said resolution. the petitioners state, and the fact is of too general notoriety to be disputed, that although they confidently expected, at the time they were compelled from imperious necessity to accept the sum in gross in lieu of half-pay for life, that it would be paid to them in reality, and not by a fresh promise without any sufficient guarantee for its due performance, yet they were compelled to receive certificates, which, for want of any specific provision for the payment of them, or the interest accruing on them, were immediately depreciated to five for one, and, by degrees, to ten for one, in exchange for money. they therefore pray that half-pay for life, to commence from the time of the reduction of the army, may be granted to them, according to the solemn stipulations entered into with them by congress, by the resolutions before referred to; deducting therefrom the five years' full pay received by them in depreciated paper, by way of commutation. it is well known to your committee, and to the whole nation, that the far greater part of the officers were compelled by hard necessity to dispose of their commutation certificates at prices infinitely below their nominal amount; that this did not proceed from want of patriotism, of which they had beforehand given proofs most unequivocal, or of want of confidence in their government; but that, after having spent the vigor of their manhood in the service of their country, they returned to the walks of civil life, (many of them maimed, and scarcely able to halt along,) ignorant of what was passing or likely to pass in the councils of their country; the griping hand of poverty bore hard upon them; and, unacquainted as they necessarily were with civil affairs, they fell an easy prey to the wiles of the artful and insidious speculator, who was lying in wait to fatten upon their hard earnings. under circumstances like these, it would have been strange indeed, if they had kept their certificates in their pockets. no, the thing was impracticable; go they must, for whatever they would bring, and be the consequences whatever they might. upon the whole, the committee are of opinion that the contract entered into by congress with the officers of the late revolutionary army, for giving them half-pay for life, has not been substantially complied with by the government. they, therefore, recommend the following resolution: _resolved_, that the prayer of the petitioners is reasonable, and ought to be granted. friday, february . _robert fulton and torpedoes._ the following letter was laid before the house: "kalorama, _february , _. "sir: having published a pamphlet explaining my experience on the practice and effects of torpedoes, i beg leave to present you, and each member of the house of representatives, one copy. should the house consider this subject of sufficient interest to merit further explanation, i shall be happy to give a lecture at such time and place as may be most convenient, in which i will exhibit the various modes of attack with torpedoes and harpoon guns, as prepared for action, with such models and demonstrations as will lead to a clear understanding of the subject. "i have the honor to be, &c., "robert fulton. "hon. speaker _house of reps._" leave was given to present the pamphlets mentioned in the above letter, as requested. _navigation of the mobile._ the following message was received from the president of the united states: _to the house of representatives of the united states_: i transmit to the house a report of the secretary of state, complying with their resolution of the d of january. james madison. february , . department state, _feb. , _. the secretary of state, to whom the president has been pleased to refer the resolution of the house of representatives of the d of last month, has the honor to state that it appears from the records in this department, that in the years and , the executive had endeavored to obtain, for the citizens of the united states residing on the waters of tombigbee and alabama rivers, the free navigation of the mobile river to its confluence with the ocean--first, by claiming this navigation as a natural right, sanctioned by the general principles of the law of nations applicable to rivers similarly situated; and, secondly, by endeavoring to purchase the country held by spain on the mobile. these efforts were made before it was known that spain had ceded louisiana to france, and consequently before the purchase of that province by the united states. since that purchase, the country held by spain on the mobile has been claimed as being included therein. the spanish government, having objected to this claim in a manner which justified a belief that the question would not be soon decided, our minister at madrid was instructed again to claim the free navigation of the mobile under the general principles of the law of nations, and to represent to his catholic majesty the propriety and necessity of giving orders to his officers not to interrupt the free communication with our territories through the waters of the mobile. in addition to what has been done through this department, it appears that the governor of the orleans territory, and other officers of the united states, have endeavored to induce the spanish authorities on the mobile to abstain from exacting duties on the passage of our merchandise or produce up or down that river. notwithstanding, however, every thing which has been done, it is understood that these authorities have continued to exact (with some occasional relaxations) a duty of twelve per cent. "on all articles of the growth or manufacture of the united states, which are conveyed through said river to and from the city of new orleans." all which is respectfully submitted. r. smith. monday, february . _torpedoes._ mr. dawson.--on hearing the journal read, i find that on last friday a letter was received by the speaker from mr. fulton. what merit is due to his invention i will not pretend to say; but i know mr. fulton to be a man of science and successful experiment; of which he has given proofs, both in europe and this country. it seems to me that some attention ought to be paid to his communication. i therefore move you that his letter be referred to a select committee. mr. dawson's motion was agreed to, and a committee appointed, consisting of messrs. dawson, taylor and bacon. wednesday, february . _torpedoes._ mr. dawson made the following report: the committee to whom was referred a letter from robert fulton to the speaker of the house of representatives, dated on the th instant, beg leave to report, in part, that at their request mr. fulton attended the committee on this morning, and explained to them his views of the uses and effects of torpedoes, on which the committee forbear to give an opinion, and offer the following resolution: _resolved_, that, when the house shall adjourn on friday next, it will adjourn to meet on monday; and that mr. fulton have the use of this hall on saturday, for the purpose of exhibiting the torpedoes and delivering a lecture on their practice and utility. mr. rhea moved to recommit the report to the committee who reported it, with a view to obtaining a report on the merits of it.--motion negatived. mr. livermore called for a division of the resolution reported by the committee, so as to take a question separately on the words, "resolved, that, when the house shall adjourn, it adjourn to meet on monday." the question on this part of the resolution was decided by yeas and nays--yeas , nays . mr. livermore moved to postpone the further consideration of the subject indefinitely. a desultory debate took place on these various questions. it was said that the hall of the house of representatives was exclusively appropriated to legislative purposes, and that, at this time, to appropriate it to the purpose of experimental lectures, would afford a precedent which would be injurious; that such a measure, if admissible at all, should not be taken unless the house were convinced of the practicability of the system proposed to be illustrated, because it would hold out the idea that the house of representatives had sanctioned it. it was also said that this system could quite as conveniently be illustrated in one of the other apartments of the capitol, without spreading on the journals a formal record allowing mr. fulton the use of this house. in reply, it was said, that this was an invention which promised to be of great public utility, and it was but reasonable, as the inventor was known to be a scientific man, that he should have an opportunity of demonstrating its efficacy, when he has offered his services for that purpose. if it succeeded, it might be a saving of many millions to the united states; and if it failed, the house would, by paying attention to it, have shown their disposition to encourage science. the argument against the report of the committee, that this hall was exclusively devoted to legislation, it was said, would operate with equal force against permitting divine service to be performed there on sundays. before any question was taken on the latter clause of the report of the committee, the house adjourned. thursday, february . _torpedoes._ a motion was made by mr. burwell, that the unfinished business of yesterday do lie on the table; and the question being taken thereon, it was determined in the negative. the house then resumed the consideration of the said unfinished business, and the question recurring on the motion to postpone indefinitely the further consideration of the second member of the resolution, mr. speaker decided that the said motion to postpone indefinitely was, at the time the same was under consideration, out of order. a motion was then made by mr. ross, to amend the said resolution by striking out the words, _delivering a lecture on_, for the purpose of inserting the word _explaining_. and the question being taken thereon, it was resolved in the affirmative. the question was then taken upon concurring in the second and last member of the said resolution, and determined in the negative--yeas , nays . on motion of mr. troup, the question was then stated on concurring in the first and second members of the said resolution; when mr. speaker decided that, a question being divided, one part affirmed and the other rejected, a question cannot be put upon the whole of the resolution as originally proposed. from which decision of the chair, an appeal was made to the house by mr. troup, and being seconded, the question was taken, "is the decision of the chair correct?" and resolved in the affirmative--yeas , nays . friday, february . _mrs. hamilton's claim._ the house resolved itself into a committee of the whole on the report of the committee of claims on the petition of elizabeth hamilton, widow of alexander hamilton, praying for the compensation due to her deceased husband. [this report is one of the class of those favorable to the prayers of the petitioners on grounds of equity, but declaring, because they are barred by the statute of limitations, that they, therefore, ought not to be granted.] the resolution reported by the committee of claims is as follows: "_resolved_, that the prayer of the petitioner ought not to be granted." the report was supported by messrs. montgomery, varnum, helms, and bacon, on the ground that the late general hamilton had no claim on the government under the resolutions of the old congress; because he was, on the th of november, , a delegate in congress, and, by the th article of the confederation, incapable of holding, at the same time, a military commission. he was in that congress, a member (if not the chairman) of the committee which reported the resolutions under which his heirs are now said to be entitled to compensation. had no statute of limitations ever been passed, therefore, it was said that general hamilton or his heirs had no claim on the government; because in accepting a seat in congress, he had virtually resigned his commission before the close of the war. the case might be a hard one; but there were hundreds of cases at least equally so, and cases too in which the sufferers had not, as general hamilton had, subsequently enjoyed lucrative employments by the favor of his country. it was said that congress ought to be just before they were generous. before they granted a claim of this doubtful character, influenced by the character or standing of the individual, they should relieve the impoverished old soldiers who daily begged of them for a pittance of bread, whose claims were equally just and whose necessities were much more pressing. mr. boyd spoke in favor of the report of the committee. either the statute of limitations was just or it was unjust. if unjust, it ought to be repealed; if just, congress ought to be careful how they made exceptions in favor of particular claims. messrs. johnson, gholson, dawson, sheffey gold, key, pitkin and gardenier, oppose the report of the committee. it was said that general hamilton's having received a brevet commission at the close of the war was evidence of his having been considered in service until the end of the war; for unless he had, such a commission could not have been issued to him. but a short time before the peace, he was seen at the head of his regiment gallantly storming a redoubt at the siege of york, and contributed not a little to the capture of cornwallis and his army. by accepting a seat in congress he did not resign his commission, but held himself liable to be called into service at any time, if necessary. but if he had, from the best of motives, accepted a seat in congress, and thereby resigned his commission, it was said that his heirs ought not, therefore, to be deprived of the compensation equitably due to him. congress had extended the hand of relief to the daughters of count de grasse, who had no shadow of a legal claim; but their father had assisted by sea, as general hamilton did on the land, at the capture of cornwallis; they were in this country in distress, and congress had relieved them. should the same relief be denied to the representatives of a citizen who had served during the war, and whose legal claim, if barred at all, (except by the statute of limitations,) was only barred by his zeal in the service of his country, which prompted him to accept a seat in congress? the statute of limitations, it was said, was never intended to bar congress from discharging a just claim, but merely to prevent the accounting officers of the treasury from allowing all the old, and perhaps fraudulent claims which might have been pressed upon them. every gentleman who spoke, dwelt upon the obduracy of heart and injustice, as it was termed, which could refuse to the claim of the war-worn soldier, the compensation due to him for his assistance in achieving the liberties of his country. before the question was taken on the report, the committee rose, reported progress, and obtained leave to sit again. and the house adjourned to monday. monday, february . _bank of the united states._ mr. montgomery, from the committee appointed, on the twenty-ninth ultimo, on the memorial of the stockholders of the bank of the united states, made a report thereon; which was read, and referred to a committee of the whole to-morrow. the report is as follows: that in proceeding to the consideration of the said petition, your committee instructed their chairman to address a letter to the secretary of the treasury, requesting him to furnish such information or observations as he might think proper, in relation to the subject-matter thereof, as connected with the financial and commercial interests of the united states. in reply to which, the secretary, by his letter to the chairman, referred your committee to his former report on the said subject, made to the senate of the united states, in obedience to the order of that house. your committee have been attended by agents of the petitioners, who, in addition to the matters contained in the petition, have suggested to your committee that the object of the petitioners was to obtain the renewal of the charter in its present form; that, for this renewal, the bank is willing to make compensation, either by loans at a rate of interest, or by a sum of money to be agreed upon, or by an increase of the capital stock, by a number of shares to be taken and subscribed for by the united states, to an amount adequate to the compensation to be agreed upon for such renewal. these agents also suggested that they were fully authorized and empowered to offer and conclude the terms specifically connected with these propositions. your committee, not feeling themselves authorized to enter into such terms, and judging that the extent of those propositions would better apply to the details of a bill, than to the adoption of a principle to be first settled by the house, have, therefore forborne to inquire into the extent of the propositions, and, without expressing an approbation or rejection of these offers, or giving an opinion as to the plan and reasoning of the secretary of the treasury, your committee in order that the opinion of the house on this great national question may be declared previous to entering into the details connected with the subject, recommend the following resolution: _resolved_, that it is proper to make provision for continuing the establishment of the bank of the united states, with offices of discount and deposit, under the regulations necessary for the beneficial administration of the national finances, during such time, and on such conditions, as may be defined by law. wednesday, feb. . _amey dardin._ mr. gholson, from the committee appointed on the seventh of december last, on the petition of amey dardin, made a report thereon; which was read, and referred to a committee of the whole house on friday next. the report is as follows: that the petitioner claims compensation for a stud-horse, known by the name of romulus, taken from her husband, david dardin, in the year , for the use of the army of the united states. it appears that the said horse was impressed from david dardin for the public service by lieutenant rudder, a continental officer, on the th of february, in the year aforesaid, and was then valued at the sum of £ specie. the horse was taken to the army in north carolina, then commanded by general greene, who, upon hearing of the valuation, ordered the said horse to be valued again, which valuation was still higher than the first; whereupon general greene ordered the horse to be returned to his former owner, who called upon three persons to ascertain the damages sustained by the use of his horse, and they estimated the damages at £ . the said dardin then received the horse as his property, and continued to use him as such until the th july, , when another continental officer again took the horse and gave a receipt for him, wherein the sum of £ is mentioned as having been before stated as the appraised value. this procedure attracted the attention of the executive of virginia, and in december, , benjamin harrison, then governor, made a representation to general greene respecting this subject; but the horse being by this time in the state of georgia, and applied to the public service, was continued therein, finally disposed of, and never thereafter returned to the said owner. it also appears that this claim of dardin was referred to the virginia assembly in by the court of mecklenburg county; and, in a former report it is stated, and believed to be true, that dardin accordingly petitioned the legislature of that state; but his claim being considered as coming more properly against the union than against any particular state, he did not succeed. he, or the present petitioner, was then advised that redress might be obtained against the officers who took the horse, and a suit was instituted in the high court of chancery of virginia for that purpose, which suit was depending therein until the month of june , when it appears to have been abandoned and was dismissed. with the exception of the fact which the committee have extracted from a former report in this case, that this claim was once presented to and rejected by the virginia legislature, (which is deemed a circumstance of no particular importance,) all the foregoing statement is supported by written documents, which appear to be genuine and authentic. on the merits of this claim, your committee consider it almost superfluous to comment. the facts are conclusive in its favor, and no obstacle to its discharge can be conceived, except the lapse of time on this subject. the committee beg leave to state, that on the d july, , congress passed a resolution providing that all persons having unliquidated claims against the united states shall exhibit a particular abstract thereof to the comptroller of the treasury of the united states within one year. this was the first limitation that was adopted in respect to any class of claims, except those for personal services, which had been barred by the resolution of d november, . the committee are of opinion that this claim was not included in the resolution of d july, , because that resolution mentions only unliquidated claims; and the present claim was always liquidated and certain. the certificate granted by the continental officer states the appraisement of the horse, made pursuant to the usage of the army, at the specific sum of £ specie. the next limitation to claims against the united states, and which it is believed by the committee embraces the claim of the petitioner, is contained in the act of the th february, , which took effect on the st of may, . on the th of february, , the petitioner, instead of presenting her claim to the treasury, according to the requisition of the statute of the th of february, , presented it to congress, who took cognizance of it, and ordered it to lie on their table. her petition, and the only documents on which she could have succeeded at the treasury, were retained in the possession of the house of representatives until, and for some time after, the statute of limitations began to operate. your committee have no hesitation in hazarding the opinion that in a case like this, between a and b, before an intelligent and upright, and equitable judge, the claim would be most undoubtedly sanctioned, as not coming within the spirit, although it may fall within the strict letter of the act of limitation. placing, however, this question out of view, the committee are still of opinion that the claim of the petitioner ought to be allowed. they believe that when a claim, founded in a fair consideration, and supported by indisputable evidence, is presented for payment, a proper self-respect on the part of the government, as well as justice to the claimant, requires its discharge. they therefore submit the following resolution: _resolved_, that the prayer of the petitioner ought to be granted. friday, march . _mrs. hamilton's claim._ the house resolved itself into a committee of the whole on the following resolution reported by the committee of claims on the petition of elizabeth hamilton: _resolved_, that the prayer of the petitioner ought not to be granted. messrs. nelson and taylor opposed, and messrs. root, boyd, and montgomery, supported the report--each at considerable extent. at length the question was taken in committee, and the report disagreed to, to . the committee rose, and reported their disagreement. the house concurred with the committee of the whole in their disagreement--yeas , nays . after some conversation as to the proper course now to be pursued, mr. gholson moved that the committee of claims be instructed to report a bill, pursuant to the prayer of elizabeth hamilton. the motion was agreed to by yeas and nays-- to . friday, march . the bill sent from the senate, entitled "an act for the relief of charles minifie," was read twice, and committed to the committee of claims. _torpedoes._ the bill from the senate, entitled "an act making appropriation for the purpose of trying the practical use of the torpedo, or submarine explosion," was read the first time. a motion was made by mr. livermore, that the bill be rejected; and the question being taken thereon, it was determined in the negative--yeas , nays . the bill was then read the second time, and committed to a committee of the whole on monday next. monday, march . another member, to wit, from virginia, john randolph, appeared, and took his seat in the house. wednesday, march . _claim for indian depredations._ mr. witherspoon, from the committee appointed on the fourteenth ultimo, on the petition of alexander scott, made a report thereon, which was read, and referred to a committee of the whole on friday next. the report is as follows: that in the month of february, , william scott, james pettigrew, and john pettigrew, of south carolina, left that state, with a view of establishing themselves in the present mississippi territory, and took with them twenty-one negro slaves, with goods and chattels to the value of more than one thousand dollars; that they proceeded in safety on their journey as far as the muscle shoals, on the river tennessee, where they were attacked, about the th of june, , by a party of cherokee indians, who put to death all the white people of the family, and took possession of and carried away the negroes and other property. it appears, also, to your committee, that repeated endeavors have been made, at very great expense, to recover the aforesaid property, without any other success than the recovery of a negro child; and that the persons legally entitled to the said property are forever foreclosed from any remedy by which to recover the same, in consequence of the stipulations of the ninth article of a treaty made with the cherokee indians on the d day of october, , which article is in the following words: "it is mutually agreed between the parties that the horses stolen, and not returned within ninety days, shall be paid for at the rate of sixty dollars each. if stolen by a white man, citizen of the united states, the indian proprietor shall be paid in cash; and if stolen by an indian from a citizen, to be deducted, as expressed in the fourth article of the treaty of philadelphia. this article shall have retrospect to the commencement of the first conferences at this place in the present year, and no further. and all animosities, aggressions, thefts, and plunderings, prior to that day, shall cease, and be no longer remembered or demanded on either side." by the above-recited article, the petitioners are wholly deprived of redress in the premises. if there existed any tribunal of justice before whom the case could be brought, the right of the petitioners to the said negro slaves and their increase would doubtless be established. but there is no court within the united states having cognizance of an action for the recovery of property held within the indian boundary. neither is it in the power of the petitioners to avail themselves of force or stratagem, whereby to regain possession of the aforesaid slaves and their increase, because they would be liable to punishment for a violation of the statute of the united states regulating intercourse with the indian tribes. from these premises, it appeared to your committee that the petitioners have an undoubted right to the above-mentioned slaves and their increase, and that they have been deprived of all remedy for their recovery by the acts of the government of the united states; that the voluntary renunciation of their rights by the government gives to the petitioners a fair claim on the government for indemnification. your committee, therefore, under an impression that the aforesaid slaves would be delivered to the agent of the united states for indian affairs among the cherokee indians upon conditions more favorable to the united states than a full remuneration of their value to the petitioners, respectfully submit the following resolution: _resolved_, that the prayer of the petitioner is reasonable, and that the president of the united states be authorized and requested to treat, by such commissioner as he shall appoint, for the delivery to the rightful owners of the slaves and their increase taken from william scott, james pettigrew, and john pettigrew, on or about the th of june, , by a party of the cherokee nation of indians, at or near the muscle shoals, on the river tennessee, upon such equitable conditions as to him shall appear just and reasonable. friday, march . _mrs. hamilton's claim._ the house resolved itself into a committee of the whole, on the bill for the relief of elizabeth hamilton. messrs. smilie, root, w. alston, bacon, macon, clay, and boyd, opposed the bill, and messrs. johnson, sheffey, and nelson, supported it. the committee rose about four o'clock, and reported the bill. mr. macon moved to amend the said bill by striking out the following words: "five years' full pay for the services of her said deceased husband as a lieutenant colonel in the revolutionary war, which five years' full pay is the commutation of his half-pay for life;" for the purpose of inserting, "whatever may be due to her for his services as an officer during the revolutionary war." mr. gholson called for a division of the question. and the motion to strike out was negatived, yeas , nays . mr. w. alston moved to amend the bill by adding the following proviso: "_provided_, that it shall be made to appear, to the satisfaction of the accounting officers of the treasury department, that the said alexander hamilton ever was entitled to half pay or commutation." the question on mr. alston's amendment was decided in the negative--yeas , nays . and on motion, the house then adjourned, about five o'clock. saturday, march . _amey dardin's claim._ the bill for the relief of amey dardin was read a third time. mr. stanford moved to recommit the bill to obtain a more particular report on the claim than had been made. motion negatived. the passage of the bill was opposed by messrs. macon, bacon, pickman, and stanford, and advocated by messrs. gholson, smilie, w. alston, and sheffey. [it was opposed on three grounds--the main objection being that it opened the statute of limitations; , that the claim ought not to be allowed, because the horse, for which compensation was asked, might have been reclaimed if the deceased mr. dardin had chosen to have received it; , that interest ought not to be allowed on the sum at which the horse was valued.] the bill was passed--yeas , nays . _mrs. hamilton's claim._ the consideration of the bill for the relief of mrs. hamilton was called for. mr. wynn moved to adjourn. for it, . mr. root moved to postpone the further consideration of it till friday next. negatived, to . mr. root opposed the bill at length, and mr. fisk replied. the question "shall the bill be engrossed for a third reading?" was then taken and carried, by yeas and nays. on the question, when the bill should be read a third time, mr. root named friday, and mr. nelson to-day. for friday --for monday . to-day was fixed as the day; and a motion was made by mr. t. moore to adjourn. lost, to . the bill was read a third time and passed, to , the votes being precisely the same as those last taken, except that mr. r. brown was absent on this vote. monday, march . _torpedo experiment._ the bill making an appropriation for the purpose of making an experiment on the practical use of the torpedo, or submarine explosion, was taken up. mr. dana, said that the question now before the house did not relate to any degree of reputation which any individual might claim for any invention, nor to any interest he might have in any discovery he had made. the question was, whether this proposition now appeared before the house under such circumstances that they should step out of the ordinary course of encouragement, given by law to inventors, to provide the means of making an experiment at the public expense. this, mr. d. said, was the simple inquiry to be made; and, however eminent or distinguished in the walks of science, or however irradiated by the splendor of genius, it belonged to no individual to demand of the legislature that they should adopt any system previous to its utility being ascertained. no individual could arrogate it to himself; and, when any individual pressed himself upon the legislature, it was a question whether this experiment was worthy to be made; whether the invention promised any possible good worthy of this experiment. mr. d. said he had no wish to detain the house, but he had really doubted, for himself, whether, with the views he entertained on this subject, it was compatible with the respect due to the house to withhold some of the sentiments which occurred to him in opposition to this bill. in every instance in which a sum of money had heretofore been appropriated to encourage inventions, it had been for some object admitted to be of value, for something intended to be of use, and which, prior to making the appropriation in relation to it, had been, in a degree, examined. this, however, was a thing which, on the face of it, appropriated a sum of money for the purpose of making experiments to ascertain the use of the invention. it was therefore, perhaps, the first appropriation of the kind ever proposed. mr. d. said he did not perceive that any experiment could be made, in time of peace, to ascertain this thing, so as to decide the question of the practical use of the torpedo; for, with respect to every question stated in the publication laid on the table, with respect to any principle which the inventor proposed to establish by any specific experiment, with respect to any question which related to natural agents or their physical effect, he thought it proper to admit the whole. in the first place, mr. d. said that he admitted that the explosive force of gunpowder, placed at the keel, might destroy any ship. another thing he would admit, that a person might deposit powder in a metallic case, which should remain under water; that the case might be made water-tight, and that the clock-work contained in it might be put in motion. he would admit, also, that this machine might be balanced so that its gravity should be nearly equal to that of the water; that the action of the current or tide might bear such a magazine, so specifically apportioned, beneath the bottom of the vessel. but, when all these things were admitted, mr. dana said that he did not perceive that any one point was gained as respected the object of the experiment, for it must be considered that all this experiment could only go to decide the action of natural physical powers, where the efforts of genius were not combined. as respects the whole of the thing itself, as far as i understand it, i perceive nothing new in it. i do not conceive that, on this subject, there is any thing very novel in point of principle. there may be something in the modification of it; but, as respects the main principle, there is nothing new. the idea was started during the war of the american revolution, and various experiments were made on it. the commander-in-chief of the army of the united states, at that time, was not, as i have understood, impressed himself with much confidence in the experiment. but a gentleman of his family, and an officer of his army, who had more confidence in it, made the experiment; and, ultimately, the experiment was pretty much given up. as he did not speak at random, mr. d. asked leave to call the attention of the house to the principles of the invention of david bushnell, of connecticut. [mr. d. here read, from the _philosophical transactions_, an account of a machine invented by mr. bushnell, in many respects similar to that invented by mr. fulton.] the principal difference between these two inventions, mr. d. said, appeared to be in the mode of conveying the machine to the keel of the ship. the plan of mr. fulton was, instead of conveying it by means of a diving-boat, to convey it by the action of the current to the place where it was to operate. to do this he proposed two modes. as respected the first, the action of the current on the torpedo placed obliquely, mr. d. said he had no doubt. it was the principle on which the helmsman steers his ship, and the seaman manages his sails; the principle on which boats are made to pass ferries by the oblique action of the current. as respected the second mode, the use of the harpoon-gun, there was no novelty in that certainly. it had been used in europe in the whale fishery, where they were not trained in this species of fishing so as to produce dexterity in throwing the harpoon. premiums had been given, and attempts made to discharge a harpoon from a ring and rope attached to it, at the distance of ten fathoms, which was a greater distance than the most experienced and skilful could strike with effect. the question which mr. d. said he proposed, was, whether obstacles could not be interposed by naval men. as respected firing the harpoon-gun, he should suppose it a want of skill or attention in the experiment if it failed to take effect. that a harpoon might be fired into a vessel, that the torpedo would go under her, and that a vessel which could be bought for $ , , might be blown up in this way, he had no doubt; but when all this is done, what does it ascertain? as respects making a torpedo, any person who is in the neighborhood of a good gun and locksmith, and has good powder, can construct one. mr. d. said he did not see the necessity of spending this sum of money rather for amusement than for any thing else. he did not see the necessity of it, because he did not perceive any one thing to be learnt from an experiment. he was, therefore, against the bill. mr. lyon said that the gentleman from connecticut had shown his own conviction of the utility of torpedoes, and it would be worth while to give five thousand dollars to establish the same conviction in others. if i had the twentieth part of the certainty on the subject which that gentleman has, said mr. l., i should not vote for the experiment. i have no desire, in voting for any thing of this kind, to give up any other kind of defence. i know it is all-important in us to defend our ports and harbors. if it was not for our extensive seacoast, i should not be so extremely averse to going to war. i would leave no means untried to protect this seacoast. however little the hope might be, if there was the least thing to hang hope on, i would give $ , for the experiment. i have voted for the highest sum ever called for, for the defence of new york; but still, when i look to the steeples of the fine churches, and to the banks, &c., of that city, exposed as it is and must be, i am struck with horror. notwithstanding all the exertions which have ever been made for them, they must still be insecure. if $ , would carry conviction as far on the rest of the house as with the gentleman from connecticut, the money would be well laid out to enable us to go on with a further experiment of this plan. the gentleman from connecticut read a long history of the torpedo experiment made many years ago. i believe, sir, mr. fulton has but little merit in originating the thing. let gentlemen recollect what an alarm this thing made, and how uneasy the british were during the revolutionary war, till they thought they had got rid of these machines. i cannot forget the alarm which they excited, and will take the liberty to quote hopkinson on the subject, who was a witness to the transaction: "'t was early day, as poets say, just when the sun was rising, a soldier stood on log of wood, and saw a sight surprising. "as in amaze he stood to gaze, the truth can't be denied, sir, he spied a score of kegs, or more, come floating down the tide, sir. "a sailor, too, in jerkin blue, the strange appearance viewing, first damn'd his eyes, in great surprise, then said--'some mischief's brewing.' "these kegs now hold the rebels bold, pack'd up like pickled herring, and they 're come down, t' attack the town in this new way of ferry'ng. "the soldier flew--the sailor too, and, scar'd almost to death, sir, wore out their shoes to spread the news, and ran till out of breath, sir. "now up and down, throughout the town, most frantic scenes were acted; and some ran here, and some ran there, like men almost distracted. "some fire cried, which some denied, but said the earth had quaked; and girls and boys, with hideous noise. ran through the town half naked." &c. &c. if a parcel of kegs, in those days, alarmed them so much, what will fulton's torpedoes do now? mr. mckim said, that what had fallen from the gentleman from connecticut had operated powerfully on his mind to satisfy him of the propriety of the appropriation. he says, observed mr. mck., that he has no doubt they will produce the desired effect. now, sir, when i am informed, from so respectable a source, of their effect when properly placed under the ship, i am induced to vote for this appropriation. if one of these machines in a hundred should take effect, the object would be perfectly gained. if we could only blow up one or two in a squadron, we should not hereafter be disturbed by british squadrons in our waters. i have listened with great pleasure to the lecture of the gentleman on pneumatics, hydraulics, &c., for i know not where i could have derived so much information as from that gentleman, and i take the opportunity of returning my thanks to him. mr. fisk said he was against the bill, but from different reasons than other gentlemen were. i do believe, said he, that in some cases, the anchored torpedoes may be effectual; but i do not believe that any thing to result from this bill will be of service to the country. i do not entertain any doubt that a vessel may be blown up. the explosion will take place, the wreck will be left in the bed of the river, and it may cost $ , to raise it, or it may remain as an obstacle to the invasion of the capital. if congress are at this time seriously to resort to the torpedo system of defence, let us do it in a more serious manner; let us make a respectable provision to purchase torpedo munition, and create a torpedo corps under certain regulations. we have got military and naval armaments; let us make a torpedo armament. at the same time, it was but justice to the inventor to say, that he considered the anchored torpedo as a very useful invention. mr. f. moved to recommit the bill, to inquire into the propriety of appropriating such a sum of money as the secretary of the navy should deem adequate to the object, for the sum proposed certainly was not. mr. quincy said he agreed with the gentleman from new york in his opposition to the bill, because, if a fair experiment was intended, the appropriation was totally insufficient. this morning, in a conversation with the secretary of the navy, i understood that this sum will not enable a vessel to be placed in that situation which will give a fair experiment. if we pass this bill, it will be utterly useless to the purpose proposed. if the object be to have gentlemen who never saw such a thing gratified with an explosion, that object will be attained, but no other. let us have an estimate from the secretary of the navy of the probable expense, or the whole sum appropriated may be lost, and the law will prove utterly disgraceful to those who passed it. mr. holland said he had understood from the torpedo inventor himself, that $ , would be amply sufficient. mr. dana said he had no belief that any vessel could be purchased for five thousand dollars, on which a sufficient experiment could be made. he conceived that the experiment could only be made in hostile operations. we are told that these torpedoes would destroy the navy in the british channel. do we doubt the inveteracy of the french hatred of the british navy when it has existed so many years? if this invention would command the british channel--and millions are but dust in the balance for this object--to enable bonaparte to strike at the british soil, why has not the invention been patronized by france? it has been rejected by france, and rejected by england after an expense of hundreds of thousands of dollars--and now are we to take it up? it is as a stationary resistance to be made to a naval force where there are fortresses also, that the torpedo may be made use of, if they can be used at all; where chains, or chevaux-de-frises are made use of, it may be made use of as auxiliary to other aids in terrifying the enemy. as to setting these machines afloat, firing harpoons into vessels, calculating the chance of boats getting away when a single shot may send them to the bottom, i have no opinion of it at all. mr. lyon said he would not vote for recommitment, not that he had not rather that ten thousand dollars were appropriated than five thousand; but the house had the senate's opinion on that point before them. he agreed with gentlemen entirely, that there never could be a complete experiment until time of war. but that was no reason why we should not, before war came, be in a fair state to try the experiment in war. mr. fisk said he had not seen the experiment which had been made in new york, but he had conversed with hundreds who had. he had no doubt but the invention might be useful, but how was its utility to be ascertained, unless in the vessel to be attacked, there was a crew prepared to resist the approach of the boats, or prevent the operation of the torpedo? the nation would be no more convinced of their utility after an expenditure of five thousand dollars than they now are. it is because i have confidence in the effect of anchored torpedoes, that i am for recommitting the bill. by passing the bill as it is, we shall demonstrate nothing but the expenditure of money. i am for making an actual experiment on an enemy's vessel. to attack a well-manned frigate, is a very different thing from attacking an old hulk, perfectly at the disposal of the projectors. if we were to pass a bill constructing a torpedo corps, and offering a bounty on every ship blown up, it would be much better calculated to make an impression of our seriousness than this bill. mr. tallmadge said, that having been absent from the house at the time this bill was first introduced, he knew not what arguments had been offered in favor of it. he said he was always ready to encourage inventions, &c., but when a measure was presented which had no novelty in it, he could not be satisfied to give a silent vote on the bill for encouraging it. my honorable colleague stated fairly the principles on which the submarine boat was constructed; and i believe, said mr. t., that there is no gentleman in this house who doubts the power of gunpowder, placed under the bottom of a vessel, to destroy it. i have seen it tried during the war in a great variety of ways. i became perfectly satisfied that the principle was just; the only difficulty was to place the magazine in such a situation that it should have the greatest possible effect. i well recollect that, in , when bushnell was called on to make an experiment on a british brig of thirty-two guns, lying in north river, a detachment of troops was directed to proceed down the river to enable him to make the experiment free from interruption. i had the honor to command the detachment, and continued there one month. the object of the troops under my immediate command was to keep off all hostile persons, whether of the enemy or persons unfriendly to the invention, that he might have every opportunity to make his experiment with success. his object was at ebb tide to get into the river a boat constructed for the purpose, and pass down the river, and, if possible, fix his magazine of powder to the bottom of the enemy's vessel. he tried it over and over again. sometimes he would entirely miss the vessel; sometimes he would come so near that he would get intimidated and retire again; till, sir, i became so heartily sick of the business, and of that sort of duty, that i wished the boat and men were both at the bottom of the ocean. i state this to show the difficulty, danger, and what i myself conceive to be the impossibility of placing the magazine under the vessel. so much for this; and i take mr. fulton's machine to be bottomed precisely on the same principle, the difference only being in the mode of application. i have no idea of laughing the subject out of the house; but how can gentlemen see the least probability of success in the invention? suppose a frigate at anchor, and a few boats endeavoring to harpoon this vessel. do gentlemen suppose that boats can approach without the most imminent danger? and, granting that the harpoon strikes, where is all the nautical skill of the men when they see this, if they do not prevent it from taking effect. suppose a perfectly sure shot, and that the harpoon should be fastened in the bow, is it possible that the rope to which the torpedo is attached would not be cut, and the torpedo left to float below perfectly harmless? do gentlemen consider harpooning a vessel to be like harpooning a whale, which has no men on board of it to take out the harpoon? i cannot bring myself to believe it possible that a crew on board a ship could see all around her, and yet permit a torpedo to be attached to her and place her in such a condition as to be liable to be totally destroyed with every person on board. it does seem to me that this sort of philosophical experiment ought not to be gone into by this house. if it be necessary to employ anything it would be vastly preferable that we should not go through all this solemn farce of passing a law for the purpose of exhibiting a sort of playful experiment, and there is probably a day of our time to be devoted to it, when, in truth, no solid advantages can accrue from it. i am unwilling on another ground, because the thing itself would expose the government to a sort of ridicule. if we pass this bill, and the experiment be made; if a brig be bought for this money and totally destroyed, there will still be as much proof wanting to demonstrate that this is an experiment on which we can rely, as there was before. i am against it on another ground: that if we trust to this kind of doubtful defence, we shall get into the habit of giving up the more substantial defence of the country. this is my solid reason for voting against this bill. no one ever yet found any way of getting along in solid defence but by solid preparation. i should rather come into honorable combat than fight with this underhand explosion, when especially there is so much doubt in it. if an experiment could be made, however, without all this solemn farce, i do not, know that i should have any objection to it. the motion for recommitment was lost-- to . the question on the passage of the bill was then taken by yeas and nays, and decided in the affirmative--yeas , nays . wednesday, march . _first meridian._ mr. pitkin, from the committee to whom was referred, on the th of january last, the memorial of william lambert, made the following report thereon: that the memorialist states that, for the purpose of laying a foundation for the establishment of a first meridian for the united states of america, at the seat of government, he has made calculations to determine the longitude of the capitol, in the city of washington, from greenwich observatory, in england; and that he submits the same, together with the data and elements on which his calculations are made, to the consideration and patronage of the national legislature. the committee have deemed the subject worthy the attention of congress, and would, therefore, beg leave to observe, that the necessity of the establishment of a first meridian, or meridian which should pass through some particular place on the globe, from which geographers and navigators could compute or reckon longitude, is too obvious to need elucidation. the ancient greek geographers placed their first meridian to pass through one of the islands, which were by them called the fortunate islands, since called the canaries. those islands were situated as far west as any lands that had then been discovered, or were known by ancient navigators in that part of the world. they reckoned their longitude east, from heria or junonia, one of these islands supposed to be the present island of teneriffe. the arabians, it is said, fixed their first meridian at the most westerly part of the continent of africa. in the fifteenth and sixteenth centuries, when europe was emerging from the dark ages, and a spirit of enterprise and discovery had arisen in the south of europe, and various plans were formed, and attempts made to find a new route to the east indies, geographers and navigators continued to calculate longitude from ferro, one of the same islands, though some of them extended their first meridian as far west as the azores or western islands. in more modern times, however, most of the european nations, and particularly england and france, have established a first meridian to pass through the capital, or some place in their respective countries, and to which they have lately adapted their charts and astronomical tables. it would perhaps have been fortunate for the science of geography and navigation, that all nations had agreed upon a first meridian, from which all geographers and navigators might have calculated longitude; but as this has not been done, and in all probability never will take place, the committee are of opinion that, situated as we are in this western hemisphere, more than three thousand miles from any fixed or known meridian, it would be proper, in a national point of view, to establish a first meridian for ourselves; and that measures should be taken for the eventual establishment of such a meridian in the united states. in examining the maps and charts of the united states, and the particular states, or their seacoasts, which have been published in this country, the committee find that the publishers have assumed different places in the united states, as first meridians. this creates confusion, and renders it difficult, without considerable calculation, to ascertain the relative situation of places in this country. this difficulty is also increased, by the circumstance that, in louisiana, our newly-acquired territory, longitude has heretofore been reckoned from paris the capital of the french empire. the exact longitude of any place in the united states being ascertained from the meridian of the observatory at greenwich, in england, a meridian with which we have been conversant, it would not be difficult to adapt all our maps, charts, and astronomical tables, to the meridian of such a place. and no place, perhaps, is more proper than the seat of government. it appears by the papers submitted to the consideration of the committee, that mr. lambert has calculated the longitude of the capitol in the city of washington, from the royal observatory at greenwich, by one of the most approved methods now in use for that purpose, viz: an occultation of a known fixed star by the moon. his calculations are founded on an occultation of n pleiadum, (_alcyone_,) one of the seven stars, on the night of the th of october, . by these calculations it appears, that the longitude of the capitol, in the city of washington, as reduced according to the true figure of the earth, (being that of an oblate spheroid,) is ° ´ ". degrees west. the committee would observe, that mr. lambert appears to be well acquainted with astronomical calculations; and that, so far as the committee have had time to examine them, they appear to be correct. in a question, however, of so much nicety, the correct decision of which depends so much on the accuracy of the observations made, and the goodness of the instruments used, and when the smallest error in the data will necessarily produce an erroneous result, full reliance ought not to be placed on calculations made from a single observation. indeed, in order to be certain of a correct result, it may be proper that more than one of the various methods of ascertaining longitude should be used; that calculations should be made from observations of the eclipses of jupiter's satellites, of solar eclipses, of the angular distances between the sun and moon, or the moon and a fixed star, or other methods, as well as from observations on occultations of fixed stars. the committee are, therefore, of opinion that, in order to lay a foundation for the establishment of a first meridian in this western hemisphere, the president of the united states should be authorized to cause the longitude of the city of washington, from the observatory at greenwich, in england, to be ascertained with the greatest possible degree of accuracy; and that he also be authorized, for that purpose, to procure the necessary astronomical instruments. they, therefore, beg leave to submit to the consideration of the house, the following resolution: _resolved_, that it is expedient to make provision, by law, authorizing the president of the united states to cause the longitude of the city of washington from the observatory at greenwich, in england, to be ascertained with the greatest degree of accuracy; and also authorizing him, for that purpose, to procure the necessary astronomical instruments. in presenting the above report, mr. pitkin observed that the object of the committee was to have a first meridian established for the united states, from which computations of longitude might be generally made, that maps, charts, and nautical tables, might not, as heretofore, be calculated from the observatory at greenwich, or from the varying points of philadelphia, new york, washington, or charleston. mr. p. dilated upon the advantages of such a measure. congress would fix upon the place most proper for a first meridian; and, perhaps, as washington was the seat of government, it would be as proper a place as any. as the longitude must be taken very exactly, various instruments would be necessary for the purpose of making astronomical observations. as he was desirous that a bill should pass on the subject at this session, he did not move a reference of the report to a committee of the whole, but moved that it lie on the table, to give gentlemen time to consider it before he asked a decision on it. the report was accordingly ordered to lie on the table. friday, march . _batture at new orleans._ the house resumed the consideration of the bill providing the means to ascertain the title to the batture near new orleans. mr. bibb's motion yet under consideration, and a division of the question being called for, the question on striking out the sections of the present bill (providing for a judicial decision) was taken, and carried--yeas , nays . the question now recurred on mr. bibb's amendment, to insert, in lieu of those stricken out, several new sections. [mr. bibb's amendment proposes that the right of the united states shall be vested in the corporation of new orleans, so as to enable them to defend any suit which may be instituted for the recovery of the batture, and that the batture shall be used and enjoyed as a public highway and landing place, &c.; as well by citizens of the united states as by the inhabitants of new orleans.] this motion was decided by yeas and nays and lost--yeas , nays . saturday march . _the batture at new orleans._ the house resumed the consideration of the unfinished business of yesterday, on the bill providing the means to ascertain the title to the batture in front of the suburb st. mary, in the city of new orleans. the question having recurred on the amendment of mr. pitkin, the said amendment was withdrawn by the mover. the question was then taken on concurring with the committee of the whole in their first amendment to the said bill, and carried in the affirmative. the question then recurred on concurring with the committee of the whole house in their second amendment to the said bill, amended in the house to read as follows: "sec. . _and be it further enacted_, that the president of the united states be, and he is hereby, authorized, at any time within one year, to make and execute such compromise with the parties, or any of them, who were removed from the said batture on the twenty-fifth day of january, one thousand eight hundred and eight, by order of the president of the united states, and to procure a cession of their claims thereto, or to any part thereof, for the use of the public, or to any body politic or corporate, on such terms as may be agreed on with the said parties, and deemed advisable by the president, and to stipulate for a compensation, either in money or public lands, in the city of new orleans, or its territories, as he may think proper." messrs. nelson, smilie, holland, and bibb, opposed the amendment; and messrs. sheffey, key, and lyon, supported it. the question being taken, it was determined in the negative--yeas , nays . monday, april . _apportionment of representation._ mr. fisk said he rose to offer a resolution, which he had for some time wished to present for the consideration of this house. it is to provide for fixing the apportionment of the representatives of the several states according to the third census. the last ratio was one representative for every thirty-three thousand souls; which, gave one hundred and forty-two members to this house--a number as large as may be considered necessary for the despatch of legislation, or to preserve the liberties of the people. it is estimated that the next census will give seven millions two hundred thousand souls, which, according to the present ratio of representation, would give to this house two hundred and eighteen members--a greater number than could be accommodated within these walls, and a greater body of men than could progress with the business of the house. after the census shall be taken, the amount in each state ascertained, and the fractional numbers known, it will be much more difficult to fix the ratio than at this time. i therefore beg leave to submit the following resolution. and as it embraces a subject of great importance, i have no objection that it lay on the table a few days for the consideration of the members: _resolved_, that the apportionment of representatives amongst the several states, according to the third enumeration of the people, ought to be in the ratio of one representative for every forty-five thousand persons in each state, and that a committee be appointed to bring in a bill accordingly. a motion was made that the resolution lie on the table. a motion was also made to postpone it for a week. mr. pickman moved to postpone the further consideration of the resolution indefinitely. he thought the question could be decided to much greater advantage in the two first months of the next session of congress than in the two weeks remaining of the present session. mr. macon was against indefinite postponement. every one, on reflection, must be satisfied that it would be better to decide the ratio of apportionment now than after the result of the census was known. he thought the resolution had better have been in blank as to the ratio. the ratio might be settled either by fixing the number of representatives of whom the house should consist after the next census, or by fixing the number of souls which should entitle a district to a representative. mr. gold said, however desirable it might be at this time to fix the ratio, he doubted very much whether a decision would now settle the question. if a law were now to be passed, and there should be several large fractions on any given ratio, there would be a strong disposition to alter the ratio at the next session. he thought it would be expedient also to postpone the apportionment, because it might be affected by the proportion in which the population of the united states may have increased since the last census, which could not be ascertained till after the census. mr. quincy said he understood the object of the resolution to be to settle a principle before the facts were ascertained. now it was his opinion that the house should know the facts first and settle the principle afterwards. suppose the principle to be adopted--perhaps one or two states might be entitled to but one representative, which, had the ratio been fixed at forty thousand, might have been entitled to two. this would appear to operate unjustly. the house must know the facts in order fairly to apportion representation. the apportionment ought to be made not merely in relation to population, but to the weight of the different states in the union--and these considerations could not have their due weight till after the relative numbers were ascertained. mr. w. alston was in favor of deciding on the subject at this session. he had no fear of difficulty resulting from fractions remaining unrepresented. it would be recollected that at the last apportionment, delaware had a fraction of thirty-one thousand left, and carolina twenty-nine thousand. the small states could not object to the course proposed; for if this question was postponed till after the census, and a particular ratio should appear to suit the returns of the three large states, they would support it and carry it too, notwithstanding the large fractions it might leave to smaller states. a disadvantage would therefore result to the small states from postponement rather than from a decision now. mr. fisk said there was one other reason why an apportionment should be made at this session, viz: that it would enable the state legislatures at their ordinary winter sessions to divide the states into districts, and not subject them to the necessity of an extra session for the purpose. mr. livermore was against indefinite postponement, because he was inclined to the opinion that the subject ought to be acted on at this session, but wished the resolution to lie on the table a day or two. he said he was convinced, from his experience in the manner of doing business in this house, that it would take nearly the whole of the next session of congress to make the apportionment, if it was postponed till after the census was taken. he had rather the resolution had been blank as to the ratio. mr. fisk modified his motion, so as to leave it blank as to the ratio. mr. burwell thought that the present was the proper time to fix the proportion; because, after the respective numbers of each state were received, it would be in the power of the larger states to fix the ratio as they pleased, and at present none of the state jealousies could be brought into action, which would, when the returns were actually made. to get over the difficulty said to exist in settling a principle before the facts were known, it was only necessary to say that so many members should compose the house. if the population was smaller than expected, there would still be the number deemed proper to constitute the house; and if it was larger there would be no great increase of members, to the detriment of public business. mr. b. said he was fully impressed with the necessity of acting on the subject at the present session. if postponed till the result of the census was known, and the particular interest of each member of the house became implicated in the decision of it, there would be extreme difficulty in coming to a decision. mr. smilie said he could not conceive any objection to passing the resolution in its present shape. in this question there was an inconvenience on one side and evil on the other. it was an inconvenience that the house could not with precision ascertain the population of the united states; but, from the increase in times past, the increase for the last ten years might be estimated. the evil of postponement on the other hand was great. mr. s. said he had been in congress when the ratio of representation had been settled heretofore, and he had never seen a more difficult question--and it ended at last in a bargain between the members of the different states; and from these bargains no good could arise. he much preferred deciding on the subject at the present session. mr. rhea of tennessee was anxious that the subject should lie on the table a day or two, the more especially as there was such a disagreement of opinion as to the operation of the measure of fixing the ratio beforehand. coming from a small state himself, he feared lest the principle should operate to the injury of the small states. he said he had been much surprised at the declaration of the gentleman from pennsylvania, that the question would be decided eventually (if postponed) by individual interest. if on such a question the house was to be governed by individual interests, what was the nation to expect from them? this suggestion was another reason in his mind for the resolution's lying on the table. mr. smilie had spoken of human nature as he found it, even in the gentleman from tennessee as well as all others--a degree of self-concern always influenced individual conduct. whoever had assisted at settling the representation of a state would conceive the difficulty of deciding these questions. the motion for indefinite postponement was negatived, ayes . the motion to postpone to monday shared the same fate, ayes . the motion to lie on the table was carried-- to . wednesday, april . _colonel washington._ mr. randolph said that the house was already apprised of the death of colonel william washington, in whom our country had lost one of her most illustrious sons. it is very far from my intention, sir, said he, by any amplification of mine to lessen the impression of that merit which the bare mention of his name is calculated to make on the mind of every man who hears me. it is not the least unequivocal proof of that worth that it was not extinguished by the effulgence of his great kinsman's glory, with which it was daily brought into comparison. the reputation which can stand such an ordeal as this, is far beyond the praise or blame of an humble individual like me. if, to the proposition which i am about to offer, an objection should arise in the breast of any man who hears me on the score of the rank which that gentleman bore in the late american army, permit me to suggest that it is a testimony to valor and not to rank. it is not a mere respect to rank which i wish the house to pay. it is not in rank to add to the infamy of an arnold, or to the glory of a washington. i will, therefore, move the following resolution: _resolved_, that the members of this house do wear crape on the left arm during the remainder of the session, as a testimony of respect for the memory of william washington, late a lieutenant colonel in the revolutionary army. mr. smilie said he hoped there was no man who felt more respect or gratitude to those men who served their country during the revolutionary war than he did, but this resolution appeared to be improper on several grounds. i agree, said mr. s., with the gentleman from virginia, that rank should have no effect on the opinions of the members of this house on such a subject as this. but, is it not singular that as to the many heroes who have served us during the revolution, who have now gone to their long home, no notice has been taken of their merits by us, nor any step taken to confer upon them the honor now proposed to be conferred on this officer, whom i acknowledge to be meritorious? we have seen a greene die, and certainly no man exceeded him in rank or merit, the general-in-chief excepted. we have seen a wayne also die; and i do not recollect that such a tribute was proposed to any man who served us during the revolution. shall we, then, by passing this resolution, sanction an idea that lieutenant-colonel washington was entitled to more respect than others? would not the passage of this resolution be considered as an indirect censure on the other revolutionary characters who have gone from us? when the other heroes fall that are still existing, we must, if we pass this resolution, pay the same respect to their merits, or suppose them to have been inferior. this would introduce into the legislature invidious comparisons, and, instead of legislating, we shall be sitting as judges upon character. in every respect, i think the resolution objectionable. the question was taken on the resolution without further debate, and passed in the negative--yeas . thursday, april . _the convoy system._ mr. eppes said that, some time ago, a bill had been reported by him to the house, authorizing the president of the united states to employ the public armed vessels to convoy the lawful commerce of the united states. the motion to adjourn, which had been agreed to, would leave but a small portion of the time of the house for the discussion of the several subjects before them. as he was compelled by ill health to leave the city at an early day, having already obtained leave of absence, he was anxious to obtain a vote on this before he departed, and therefore asked to discharge the committee of the whole from the further consideration of the bill, in order to take the sense of the house whether it should go to a third reading or lie on the table for the present. this motion was opposed by messrs. macon, taylor, pickman, randolph, livermore, and wilson, on the ground of its being out of the usual course of proceedings; and it was objected to the more especially as this was a subject involving very important principles, and one which, of all others, ought to be discussed in committee of the whole. mr. eppes expressed his willingness to take a silent vote on the subject, and thought a vote might be obtained on the bill without much debate. mr. johnson expressed great anxiety to vote on the bill. mr. livermore intimated that he was strongly against the bill, and, if it took every hour in the session, he was determined to expose what he believed to be its injurious features. on the question, mr. eppes' motion was negatived--yeas , nays , as follows: yeas.--willis alston, jr., william anderson, ezekiel bacon, david bard, adam boyd, john brown, robert brown, william a. burwell, william butler, joseph calhoun, matthew clay, john clopton, howell cobb, james cox, william crawford, john dawson, joseph desha, john w. eppes, william findlay, meshack franklin, david s. garland, thomas gholson, peterson goodwyn, james holland, benjamin howard, jacob hufty, richard m. johnson, walter jones, aaron lyle, samuel mckee, nicholas r. moore, jeremiah morrow, gurdon s. mumford, roger nelson, john porter, john roane, erastus root, ebenezer sage, thomas sammons, ebenezer seaver, adam seybert, samuel shaw, dennis smelt, george smith, john smith, henry southard, robert weakley, robert whitehall, robert witherspoon, and richard wynn. nays.--william w. bibb, daniel blaisdell, james breckenridge, william chamberlin, epaphroditus champion, james cochran, richard cutts, john davenport, junior, william ely, james emott, jonathan fisk, barzillai gannett, thos. r. gold, william hale, daniel heister, jonathan h. hubbard, richard jackson, jr., robert jenkins, william kennedy, herman knickerbacker, joseph lewis, jun., edward st. loe livermore, matthew lyon, nathaniel macon, robt. marion, vincent matthews, archibald mcbryde, pleasant m. miller, william milnor, thomas moore, jonathan o. mosely, joseph pearson, benjamin pickman, jun., timothy pitkin, jun., elisha r. potter, josiah quincy, john randolph, john rea of pennsylvania, john rhea of tennessee, matthias richards, daniel sheffey, john smilie, samuel smith, richard stanford, john stanley, james stephenson, jacob swoope, samuel taggart, john taylor, john thompson, uri tracy, george m. troup, charles turner, jr., jabez upham, nicholas van dyke, archibald van horne, killian k. van rensselaer, laban wheaton, ezekiel whitman, and james wilson. friday, april . _colonel washington._ mr. quincy rose to move a resolution. he said he very deeply regretted the situation in which this house had been placed in relation to the memory of that distinguished officer of the revolution, general william washington, in consequence of the resolution moved on the th instant. he thought that the impression exhibited on the journals was not such as either did justice to that individual or to the feelings of every member of the house. he hoped that to the resolution which he was about to offer, and which had for its object an explanation of the grounds on which he knew a majority of the house had voted, would not find an objection. it would take away the appearance that this house had not that deep sense of the merits and services of that officer which he knew they possessed. he then read the following resolution: _resolved_, that the house of representatives are deeply sensible of the loss this nation has sustained in the death of general william washington, late lieutenant-colonel in the army of the revolution, and that the rejection of the resolution offered on the th instant, in relation to that distinguished officer, having been produced wholly by considerations of a general nature, cannot be deemed to derogate from the high sense which this house, in common with their fellow-citizens, entertain of his civil and military virtues and services. the house agreed to consider the resolution-- to . the resolution passed--ayes ; about seventy-five members were present. friday, april . _general wilkinson._ the speaker laid before the house the following letter, which was read: washington, _april , _. sir: after a tedious passage from new orleans i arrived at baltimore on the th instant, and reached this city the next day. my absence has been necessarily protracted by the selection of papers, from a mass of twenty years' accumulation, for the establishment of facts, to refute the multifarious and diversified calumnies by which i have been assailed. i now present myself to the representative body of the nation, the guardians of the public weal and the protectors of individual rights, to express my earnest desire that they may constitute some impartial tribunal, which may be governed with strictness by the principles of the constitution and the laws of evidence, to investigate the conduct of my whole life, civil and military, whereby justice may be done, and my unexampled persecution be terminated. i aver my innocence of the foul offences which are imputed to me, and declare my ability to support it before any unprejudiced court. through you, sir, i appeal to my country, and i claim that right which is not refused to the most profligate--the right of confronting my accusers. the representatives of the people will not, i am persuaded, suffer a fellow-citizen who has been devoted to the public service more than twenty-five years, and has nothing left him but conscious fidelity and attachment to his native country, to sue in vain for justice. the enclosed letter to the secretary of war was written anterior to the receipt of my notification of recall from the command on the mississippi, and will evince my readiness and my desire for a full investigation of my conduct. with perfect respect, i have the honor to be, sir, your obedient servant, james wilkinson. hon. j. b. varnum, _speaker_, _&c._ _naval establishment._ mr. randolph, from the committee to whom was referred the resolution respecting the reduction of the naval establishment, reported the following bill; which was twice read, and referred to a committee of the whole: [here follows the bill.] monday, april . _loan bill._ the house resolved itself into a committee of the whole, on the bill authorizing a loan for a sum of money not exceeding the amount of the principal of the public debt reimbursable during the year . [in the discussion which took place on this bill, there was no objection to the principle of it. every gentleman who spoke assented to the propriety of placing at the disposal of the government a sum of money fully adequate to meet the appropriations authorized by law for the present year.] mr. dana wished to ascertain the precise amount of the principal of the debt reimbursable during the year , with a view to inserting the sum in the body of the bill. some difference of opinion appeared to exist as to the exact amount of principal reimbursable. the sum annually applicable to the payment of the public debt is eight millions of dollars. the sum left, after paying the interest of it for the year, is annually applicable to the extinguishment of the principal. the exact amount of interest payable on the public debt during this year not being known, there was a difficulty in ascertaining the exact amount of principal reimbursable. the sum of $ , , was mentioned. mr. dana moved to amend the bill so as to authorize a loan "not exceeding $ , , , being the amount of the principal reimbursable," &c. this motion was supported by the mover, and messrs. gold, sheffey, quincy, upham, tallmadge, and pickman, and opposed by messrs. bacon, w. alston, and montgomery. the arguments in favor of the motion were, generally, that it was improper to attempt to disguise any thing by giving to it a specious name; that borrowing money should not be called paying the public debt; that all authority given to borrow money should be express and specific as to the sum. it was said in reply, that there could be no objection that the truth should appear on the face of a bill; that this sum not being wanted to defray the ordinary expenses of the government, but to pay debts heretofore contracted, the phraseology was perfectly correct; that it was as specific in fact as if expressed in so many figures. mr. dana varied his motion, after debate, on account of the uncertainty which appeared to exist as to the sum reimbursable, and of course as to the sum to be loaned. he moved to amend the bill so as to give authority to borrow a sum of money "not exceeding four millions of dollars." this motion was supported and opposed by the same gentlemen who debated the former motion. in support of the motion it was said, that this sum was all that the secretary of the treasury had asked for, and was therefore as much as ought to be given. the advocates of the amendment also said that they were averse to legislating blindfold, to voting millions without knowing for what, or to surrendering up their judgments to executive discretion, under an idea that the president would not borrow more than was necessary. in reply it was said, that since the secretary of the treasury had made the estimate in question, other expenses had been incurred; that it was impossible to tell the precise amount which was wanted until congress should adjourn, as it was impossible to tell on one day what appropriations they would make the next day; that, if not necessary, the authority to borrow would not be used; as in the case of the loan authorized at the last session of congress, not a cent of which had been actually borrowed. that law had granted an authority nearly similar to this in nearly the same language. mr. dana's motion was negatived-- to . mr. quincy observed that he felt but one difficulty on this subject. he could not agree to borrow an amount greater than the secretary of the treasury had said was necessary. he, therefore, moved to amend the bill by adding to it the following proviso: "_provided_, that nothing in this act contained shall be construed to authorize any sum to be borrowed greater than four millions of dollars." the motion was lost--ayes . the bill was then ordered to be engrossed, and read the third time to-morrow. tuesday, april . _reduction of the navy._ the house in committee of the whole on the bill to reduce the naval establishment of the united states. the bill having been read-- mr. mckim moved to amend that part of the bill which directs the sale of all the gunboats, by adding the following words: "belonging to the united states, unfit for service, and unworthy of repairs." this motion was agreed to without debate, ayes . mr. key said he was friendly to the reduction of the navy, but not to its annihilation. he therefore moved to strike out so much of the bill as provides that all the frigates but three shall be "sold," and to insert in lieu thereof, "laid up in ordinary." messrs. dana and mumford supported the motion. mr. rhea of tennessee made a motion, which superseded that made by mr. key, to strike out the whole of the section, except so much as related to gunboats. he was wholly opposed to the reduction of the navy at present. mr. smilie said he should vote for the motion with a view to inserting a substitute going to place the navy now on the footing of the peace establishment of . mr. dana was in favor of mr. rhea's motion, but expressed himself very pointedly in favor of a reform in the expenditures and conduct of the naval establishment generally. mr. bassett also was in favor of mr. rhea's motion. he supported the policy of a small navy, and vindicated the establishment generally from charges of waste or extravagance, though he was friendly to reform wherever necessary. mr. b. spoke nearly an hour. mr. cook and mr. rhea of tennessee also spoke in favor of the motion to strike out the whole of the first section. mr. macon spoke against the motion, and against the policy of a navy as applicable to the situation of this country. mr. stanford followed mr. macon on the same side of the question, and particularly reprobated the extravagant expenditure of money incident to the naval system. mr. dana spoke again on the subject of reform in the system. mr. macon and mr. stanford explained. mr. boyd was against the reduction of the navy under present appearances. the motion to strike out the remainder of the section was carried, to . mr. smilie moved to insert, in the place of that part which was stricken out, the following: "and further, that the president of the united states be, and he is hereby, authorized to keep in actual service as many of the frigates and other armed vessels as in his judgment the nature of the service may require, and to cause the residue to be laid up in ordinary in convenient ports: _provided_, the whole number of officers and seamen shall not exceed that fixed by the act 'in addition to the act, supplementary to the act, providing for the naval peace establishment, and for other purposes;' passed the st day of april, ." mr. s. read the law alluded to in this amendment, which would go to retain in service thirteen captains, nine masters commandant, seventy-two lieutenants, one hundred and fifty midshipmen, and nine hundred and twenty-five able-bodied seamen, ordinary seamen and boys. mr. mckim opposed the amendment, because he was altogether opposed to a reduction of the navy in the present state of the world. mr. smilie replied. he said he had no apprehension of danger to his country from laying up a few frigates. mr. bassett stated that the whole number of seamen now in service, was but two thousand seven hundred and twenty-three. if the number was reduced, the expense of reducing and re-enlisting them within a short period, would exceed the expense of keeping them in service during the interval. mr. montgomery spoke in favor of the amendment, under the impression that there was no disposition in congress to make use of the navy. although the number of seamen in service might not exceed two thousand seven hundred and twenty, as stated, yet the president now had power to authorize the employment of five thousand four hundred and ninety men. the adoption of the amendment, he said, would curtail the present annual expense, $ , . mr. mumford spoke against the amendment. he remarked that the counting-house calculation of pounds, shillings, and pence, heretofore imputed as a fault to the merchants, seemed to have been transferred to the planters of cotton and tobacco. he did not regard a little expense when put in competition with the national safety. mr. smilie's amendment was negatived. the section for disusing all the navy-yards except those at boston, new york, and norfolk, having been read-- mr. key moved to insert "washington" after new york, and, speaking in support of his motion, expatiated on the advantages possessed by a navy-yard at the seat of government. mr. bassett concurred with mr. key in opinion; but, as he presumed the section was only meant as an accompaniment to that part of the bill already stricken out, he moved to strike out the whole section. mr. dana opposed the amendment. six navy-yards were certainly not necessary for the service of the united states, and he particularly opposed the retention of the yard at washington. mr. key spoke in reply to mr. dana, and in support of mr. bassett's motion. he defended the navy-yard at washington against the imputations cast on it. messrs. tallmadge and dana spoke against the amendment. mr. smilie spoke in favor of the amendment, and expressed his astonishment at the change which appeared to have taken place in the house since they had voted, to , a few days ago, to reduce the navy. mr. key expressed his surprise that a gentleman having as much parliamentary experience as the gentleman who preceded him, should be surprised at the change of votes. a majority had voted to reduce, having different objects of reduction in view; but, when a reduction in any one branch of expenditure was proposed, it appeared that a majority could not agree in it. mr. k. spoke again in favor of the amendment. the motion to strike out the section was lost, to . mr. key renewed his motion to insert "washington." mr. randolph opposed the motion on the ground of the unfitness of the situation of washington, compared with others, for a navy-yard. mr. macon supported the motion; because he was utterly opposed to a navy, he said he wished that a navy-yard should be kept here, as members of congress would be much sooner disgusted by seeing the expenditures of the navy system, than by hearing of them. mr. dana, as a friend to a navy, said he wished the amendment not to prevail. the gentleman from north carolina, an enemy to navies, wished to retain the yard at this place; he, mr. d., a friend to them generally, wished to dispose of or disuse it. they therefore thought alike, though they should vote differently. the motion to insert "washington" was carried-- to . the section for reducing the marines was struck out, without debate--ayes . the committee rose, and reported the bill as amended. the speaker resumed the chair, and the house resolved now to consider the report of the committee of the whole. mr. milnor said the bill had been much amended in committee, and as the remnant left amounted to very little, and the discussion of that little would probably cost more than would be saved by passing it into a law, he moved to postpone the further consideration of the subject indefinitely. wednesday, april . _loan bill._ the engrossed bill authorizing a loan for a sum of money, not exceeding the amount of the principal of the public debt, reimbursable during the year , was read a third time. all the gentlemen who spoke against the bill professed to be willing in a proper manner to authorize a loan of any sum of money necessary to meet the appropriations made; but they contended that the bill was objectionable because the sum was not stated in the face of the bill, because the bill bore a deceptive appearance of borrowing money to pay the public debt, when, in fact, it was to meet the ordinary expenses of the government; because the bill authorized a loan of five millions five hundred and sixty thousand dollars, more by one million one hundred and sixty thousand dollars than the secretary of the treasury had declared to be necessary, and because no loan ought to be authorized until bills now before the house were decided on, which involved a reduction of the annual expenditure. in reply to the objections to this bill, it was urged that the amount authorized (not required) to be borrowed was as definitely expressed as though in figures; that there could be no deception on the face of the bill, for, if no debt heretofore contracted was now to be paid off, there would not only be no occasion to borrow, but there would be an immense annual surplus in the treasury; that, since the estimate of four millions had been reported to the house, various appropriations had been made, and it was impossible yet to say how much might be wanted, and no more would be borrowed than actually was wanted; that if the passage of the bill was delayed but a day or two, it would be very easy for gentlemen to prevent its passage at all. the bill was passed--yeas , nays . _reduction of the navy._ the house then resumed the consideration of the unfinished business of yesterday. mr. milnor said when he had made the motion for the indefinite postponement of the bill, he had supposed that the sense of the house had been fully expressed on it; but as it appeared that the motion would occupy much time in debate, and as some gentlemen had thought proper to insinuate that the motion was made for the purpose of avoiding meeting a direct question on the bill, he now rose to withdraw the motion. the question was then stated on the first amendment made in committee of the whole, viz: to strike out so much as requires the sale of all the gunboats. mr. mumford hoped that the frigates would not be laid up in ordinary. he said he was no politician by profession; he had been called from mercantile pursuits against his inclination, but he had always understood that government was instituted for the protection of the citizen. he was chagrined when he saw the events unfolding in the old world, and witnessed such a paralyzing system going on in his own country. he had hoped that some system would have been adopted for the protection of our commerce at sea. if gentlemen were determined to abandon the ocean altogether, he begged to know it in time before merchants were totally ruined, for it was impossible at present to carry on any commerce whatever. the part of the country which he represented (city of new york) felt it strongly; agriculture would feel it sooner or later. the enormous captures made of their property had reduced merchants to the alternative of staying at home, or having no commerce but with great britain. if gentlemen are disposed to surrender commerce to the discretion of the belligerents and retire from the ocean, it is time to know it. mr. m. said he was no _motive-monger_; he never arraigned gentlemen for their motives. we have heard gentlemen say, "millions for defence and not a cent for tribute;" and a noble and popular sentiment it was. it seemed now to be reversed with them, and a plain translation of their speeches was, "millions for tribute; not a cent for defence." various projects had been offered. some gentlemen were for putting down the whole army and navy; others were for a sort of snail system, alarmed at the least apprehension of danger. viewing the subject as he did, mr. m. entreated that gentlemen would consent to protect commerce. the island of st. domingo now possessed seventeen armed vessels. they were gaining strength daily, and what was the situation of our southern borders? if our naval force was entirely withdrawn from the ocean, it was impossible for an army of militia to defend the mouth of the chesapeake. he understood that two vessels were now building in chesapeake bay for st. domingo. he knew that the haytian agents had been in this country for the purpose of purchasing vessels. under all these circumstances was it wise and prudent to discharge the navy? he presumed the best course would be to put to sea what little navy we have to protect our own coasters, for they would be necessary without any view to commerce in the european seas. under every view, instead of laying up those vessels in service, mr. m. said he hoped that gentlemen would consent to fit out every vessel in the possession of the united states, and send them out to protect american commerce. a motion having been made by mr. smilie to amend the bill so as to place the navy on the footing on which it stood in -- mr. dana said he was not for pausing with merely replacing the former system; he was also for guarding against the waste of public property and treasure which had taken place in the naval establishment. he believed that for the number of fighting men afloat the united states had been put to a much greater expense than was necessary. he was not speaking, he said, of our having few brave men on the water, nor of the great sums given anywhere to those who give us their blood; but the system of the navy-yards, he believed, required a thorough reform. if he was to judge of the general economy on board the frigates and smaller vessels from the little he had seen of them, he must set it down for certain that waste did not exist on board the vessels after they were fitted for service, and manned, and officered. as far as he had an opportunity to observe, he had marked a strong sense of subordination, and the practice of command at the same time sustained with gentleman-like propriety, without any unnecessary torture or rigor. in all this business, mr. d. said, where you employ warriors, whether by land or water, that department called the staff, the agents, purveyors of supplies, &c., is the branch of the service to which you most look for waste. on merely casting the eye along the decks of our vessels, the conduct of the officers, and the manner in which the men behaved, indicated a sort of conduct which appeared to him incompatible with waste, laxity of discipline, or want of attention to duty. generally speaking, the civil branch of the service was the reverse of this. mr. d. adverted to the mode of equipping vessels, and reprobated the scrambling, which he had understood often took place for equipments, as incompatible with methodical arrangement, and correct distribution of supplies. it was wasteful and inconsistent with regular accountability. it was not the course pursued in the navy-yards of other nations. the commander of a man of war in other countries was not permitted to go into a navy-yard; he could not there claim to have every thing new on board his vessel. when every man was suffered to manage as he would, there was no security for the economical conduct of an establishment; for the more anxious was each commander to have his own vessel exclusively well equipped, the more would the public suffer. he was, therefore, for adopting some system of rigorous retrenchment--what it should be he did not know. in the nature of the thing he was confident it could be done; without it there must be much waste. at present, therefore, he was against striking out the frigates from the naval establishment. a reform in the expense was the great desideratum, not the abolition of the navy. mr. d. said he would submit to the house one consideration: the appearance which the passage of such a bill would present to the world after the resolutions passed at the commencement of the present session. for his own part, indeed, he had deemed it useless to make declarations of national independence, or to resolve against submission; but at the commencement of the session a resolution had been passed respecting what had taken place between executive and the british minister, and then congress had pledged themselves to call forth the whole force of the nation to stand by and support the president. he had supposed this unnecessary, improper, and exceptionable in some respects. but at the same session, when the controversy was chiefly respecting maritime privileges, if they should not only reduce but sell the navy, what would the world say, when they had seen the beginning and end of the session? would it be possible that foreign powers could look up with any reverence to their acts? we shall, said he, be reduced to such a situation that even the apprehension of our hatred could not insure respect from foreign governments, if we suffer our conduct to be so completely at war with our own acts. in order to possess some appearance of respectability in the estimation of others, the most expedient course would be to establish economy and provide for a less profuse distribution of the public moneys, but to retain the public armed vessels, that we may be in the condition for effectual service whenever it is deemed expedient. by this course we may save more of property as well as character than by an abolition of the navy; and if we save both it is better than to save the one and lose the other. in allusion to a remark of mr. mumford against the bill, mr. d. said that in regard to what was formerly said respecting millions for defence and not a cent for tribute, that doctrine was a very good one, but it had no connection with crawling within ourselves in time of danger--with the _terrapin policy_--with drawing in head and claws so that no part of the body should be exposed; and those who were for that course, (because really they had not provided any shell,) could not very well appeal for their justification to the doctrine of "millions for defence and not a cent for tribute," and yet he believed that the gentleman from new york himself had voted for that system of terrapin defence. although, said mr. d., i was against that thing, yet there were men distinguished for talents and worth, and who are eminent in the councils of their country, who entertained sentiments widely different. this policy was borrowed from the colonial system; we did not assume the spirit of a nation, perhaps; we recollected what we had done before when we were colonies, and perhaps gentlemen thought the efforts of children might succeed when they had attained to manhood. it was a delusion. if gentlemen, however, now see through their error, their desire to correct it ought not to be condemned. mr. bassett was of opinion with mr. d. that reform rather than reduction of the naval establishment ought to be their object. he was glad to find that when the navy was brought into view, other ideas than those of mere commerce began to be associated with it. heretofore it had only been advocated as a means for the protection of commerce. mr. b. said he lived in a district which was sensibly alive to the benefits of a navy. the district which he represented had within it more water than land. it therefore became essential to the defence of his constituents that they should have a floating protection. it was impossible, in the nature of things, that they could be defended but by a floating defence. surely there could be no gentleman in the house who was not sensible of the necessity of protection! it might be a favorite point in a monarchy to keep the country unprotected, and thus under the control of the government, but the motto of republics should be universal justice, equal rights, and common defence. he asked gentlemen to look at the magnitude of the object of defending our seacoasts, which could not be less than three thousand miles in extent, and, taking into consideration the sides of our navigable rivers, that extent would be doubled. if gentlemen would but for a moment consider the immense space which was exposed, they would see all the importance of securing an adequate defence. the house had been told, and certainly very truly, that there was a maritime force rising in our neighborhood. the house had been told, also, and told correctly, too, that at least two large vessels were building in their own waters for the use of that growing maritime power. at the very moment, said mr. b., that we know that the blacks of st. domingo are building vessels, shall we dispose of our public armed vessels? let me ask who will buy them when put into the market? who but christophe and petion? it is reduced to a certainty that if we put them now to the hammer, they must go in that direction. i ask gentlemen seriously to weigh that consideration. the situation of our navy is at present sufficiently reduced. we have only five frigates in actual service. the chesapeake, for want of repairs, is now in harbor. if gentlemen are anxious that she should be laid up in ordinary, i would accord in it; but i would prefer to leave this subject entirely to the discretion of the executive. i know, sir, how apt a proposition of this sort is to be met by a suggestion of presidential confidence; but when we come to consider our particular situation, that we are putting it into the power of the president, not to add to the burdens of the people, but to relieve them, that will be thought a sound argument to justify the course of leaving the whole matter to the discretion of the president. the wisdom of the last and of the present congress has kept in service five frigates. we cannot remain in session at all times; and we are at this moment, extremely doubtful as to the aspect our affairs will assume as to foreign nations. i would ask gentlemen if former experience does not warn us that if we have an accommodation with one belligerent, it will but lead to a wider breach with the other? but if this occurrence does not take place, and every thing should turn out happily, my proposition would leave it in the power of the executive to secure the public against loss. the expense is not drawn upon us by the executive, but it is such as the wisdom of the national legislature has thought proper to incur. therefore i think it fair to consider the subject in this way. as we are about to separate, and as present appearances would not warrant our giving up any species of protection, we shall be justified in giving a discretionary power to the executive to put down such part of the naval establishment as he may in future think it justifiable to part with. i am not one of those who think the expense of the navy a sufficient argument for disposing of it altogether. i have been asked what has the navy done. i can answer for a large portion of my constituents, that it has kept them quiet in mind. is it not important that the men who live on the seaboard should know that we have a force to repel attack? what sort of attack have we cause to expect? a serious invasion? certainly not. the sort of attack which we ought to guard against is the predatory attack, made at small expense, to our great injury. if we do away the naval system entirely, our whole seacoast will be liable to be ravaged. a single frigate, a single privateer, a single pirate, might come into your waters and injure your citizens to a considerable amount. it has been mentioned, and i have seen an official intimation of it, that two or three vessels, in the shape of pirates, had stopped vessels at the mouth of the mississippi. the force now embodied on the ocean is not more than adequate to the security of the nation against predatory warfare. i am willing, notwithstanding this, to leave it to the executive discretion to lessen the burden. i regret much that at this period of the session we cannot go into an examination of the expenditures the gentleman from connecticut complains of. i think it proper to observe that for one i shall be willing to receive his assistance in detecting abuses. i believe the gentleman at present at the head of the navy department has every disposition to correct them. but at the same time that is not sufficient for us. i do not know of any unnecessary expenses, or i should bring them to public view; i do believe there is not that want of system which the gentleman seems to suppose. this much i know, that at all the navy-yards are proper officers for distributing stores. there all the rigging, ropes, &c., &c., are kept apart, and, as far as a landsman, a lubber like myself, can judge, appear in great order. in relation to the smaller vessels it appears by the report of the secretary of the navy that they are in perfect repair. the expense of sailing them is the only expense. i cannot but again repeat, because i think it of the last importance, that the security which these small vessels gives us greatly outweighs all disadvantages of expense. if we can lessen the expense, let us do it, in the hope that at another session we shall be able to find out where the evil exists. it is generally said, when this subject is under consideration, that we cannot attempt to cope with great britain. because we cannot, are we to succumb to others? to provide no protection against smaller powers? at this moment the master of an american merchant vessel is employed in the service of the emperor of china, a country possessing the greatest population in the world, for the purpose of protecting the citizens of the emperor against some small pirates. is there a fact can speak more strongly to us, that, without some sort of naval defence, with such a seacoast as we have, (and let it be recollected, sir, that our seacoast is much greater in proportion to our population than the chinese,) we shall be at the mercy of the worst of the human race? it was asked what mighty good the navy has done. let me ask the gentleman who asked that question, what mighty good our army has done by land? when we consider the point of expense, let us consider the evils of different sorts. let me ask gentlemen if the evils depicted to exist in peru, where gold abounds, do not equal any thing they can imagine to proceed from the want of money? we must forget the evils that force produces in the necessity which exists for having it. we cannot say, because some evil results from force, that we will not have it; for, if you have it not, others will. our own experience should teach us the necessity of it. what was the effect of our eloquent addresses, when colonies, placed at the foot of the british throne? they (the british) sent a fleet and army to boston. they did not tell you power was right; but they said it with their fleet and army. reason will tell us the same now; it is impossible to meet force but by force. the effects of naval force are well remembered. it is well recollected that in the revolution cornwallis marched from charleston to virginia. when he got there, a french fleet was on the coast. the very moment the fleet advanced by water, cornwallis surrendered. here was evidence of the effect of naval force. and it is by its efficiency that we must balance the great objection of expense. i have heard it stated here how much more expense a sailor is than a soldier. if we look to the fact, and contrast the efficiency of the two, we shall find that the superior efficiency of the sailor greatly outweighs the additional expense. there is one fact, very strongly illustrative of this principle, drawn from british history. it is found, by the papers laid before parliament, that the present naval establishment costs seventeen millions annually. the expense of the army is nearly the same. with seventeen millions of water force, the navy of great britain makes her mistress of the ocean; with seventeen millions, the land force of great britain is contemptible. as concerns ourselves, all the attack we can expect to receive is on the ocean or on the seacoast, and we can by this fact see demonstrably that we can procure more protection for a certain number of dollars expended on the water than we can from the same number of dollars expended on the land. history shows that republics are always naval powers; and navies have preserved their existence. the history of england, instead of destroying this argument, is in favor of it; the celebrated exploits of the dutch confirm it. england, though a monarchy, is the freest in europe, and all nations have enjoyed the greatest naval celebrity when they have been most free. a navy has no great general at the head of it, wielding an immense body of armed men. the commanders of ships have a very different influence. the admiral himself cannot act on the land. history does not show an instance where an attack was made on the liberty of a nation from that quarter. i am therefore disposed to give my feeble aid to support an efficient force upon the water rather than upon the land; and i believe the present establishment is by no means beyond what ought to exist. mr. randolph said, that as his objections to the navy went to the whole system, he would make his observations at large, in preference to reserving them in detached parts on the various details of the bill. my object, said mr. r., is to endeavor to persuade the house that they ought not to concur in the report of the committee of the whole house. i have ever believed that the people of the united states were destined to become, at some period or other, a great naval power. the unerring indications of that fact were presented to us in a tonnage and number of seamen exceeding those of any other nation in the world, one only excepted. when, therefore, i proposed to reduce the naval establishment of the united states, it was not for the pitiful object of putting down some five or seven gunboats and two or three unimportant navy-yards, or of making the mighty reduction contemplated in the amendment of the gentleman from pennsylvania. in other words, it was for the purpose of making barely such a retrenchment in the naval expenditure as might enable government, after such retrenchment was effected, to go on with the aid of loans and taxes. we had two views of the probable state of the nation presented to us during this session. the first was a view of war, in which case it was agreed on all hands that loans and taxes would be necessary; the next was a view of peace, in which case it was believed that loans and taxes were unnecessary, and was so pronounced from the highest authority in the country on financial concerns. but now it seems to have a view of reduced military and naval expenditure which does not obviate the necessity of loans and taxes. my object in the proposed reduction was not to enable the government to get on with the aid of loans and taxes, but to make such a reduction as would have enabled the government to dispense with a recurrence to them. i have said, sir, that the united states were, in my opinion, destined to become a great naval power; and i have read unerring indications of it in the commercial prosperity of our country, out of which alone it can grow. but i believe, if any thing could retard or eventually destroy it--if any thing could strangle in the cradle the infant hercules of the american navy--it would be the very injudicious mode in which that power has been attempted to be prematurely brought into action, and kept in action, during the two last administrations. again, a naval power necessarily grows out of tonnage and seamen. we have not only driven away our tonnage, but have exerted ourselves with no little zeal, even at this very session, to prevent its ever coming back. we have not been willing to consent that vessels polluted by the unpardonable sin of a breach of the embargo should return. true it is, that we have not made the same provision in relation to seamen: we have conceived the guilt rather to reside in the wood or iron, than in the men who conducted it. but, although we have no provision for the express purpose that they should not return, unfortunately they have not returned; and the proof of this fact is evinced by another, viz: that landsmen are at this moment employed on board our few ships of war, because seamen cannot be procured. our tonnage and seamen, then--the sinews of naval power--are wounded by our own measures, to a considerable degree. again: it has always been understood, according to my view of the subject, that one of the principal uses of a navy was to protect commerce; but our political rule for some time past has been that of inverse proportion, and we have discovered that commerce is the natural protector of a navy. the proof of this is found, if not in every act of this house, certainly in most of the speeches delivered on this floor. i need only allude to a speech made by a colleague of mine, (mr. gholson,) who usually sits on my right hand, a few days ago, in which he stated that the power to regulate commerce was specially given by the constitution to the united states--not as a means of raising revenue, equalizing duties throughout the united states, and making all in fact one family--but, that it was put into the hands of congress as a scorpion-whip to bring the other nations of the world to our terms; that, by turning away the light of our countenance--the sunshine of our commercial bounty--they might wither and decay. i had always thought too, sir, that the revenue which a naval establishment naturally calls for was to be founded on commercial greatness; in other words, that commerce was to give us revenue, and revenue was to support a navy, which in return was to protect commerce. but, it seems we have changed all this--we have perverted the whole course of procedure--and why? sir, shall we keep up an expensive naval establishment, necessarily driving us into loans and taxes, for the protection of a commerce which the government itself says we shall not carry on; and when members of this house tell us that the natural protection of commerce is the annihilation of it? the navy has now become a sort of fifth wheel to the political coach, and i am unwilling to keep it up, at this expense, on these grounds. if, sir, the construction which i have taken of the sense of the house and of the government be not correct, whence comes it that we have such cases before us as that of daniel buck? whence comes it that we hear of treasury instructions, not issued in the first instance for the purpose of expounding a law touching the clearances of vessels, that uniformity may prevail in the different districts, but supplementary instructions, becoming in practice the actual law of the land? in other words, if my construction be not correct, whence comes it that every principle formerly called federal--every principle of executive energy and power--has been strained of late to an extent heretofore unparalleled? whence comes it, that in the archives of this assembly, we find copies of licenses given by the executive power of the nation--to do what? to permit one part of this confederacy to supply another part with bread! we have had executive licenses, graciously permitting that a portion of our citizens should not starve while the rest were revelling in plenty, and suffering for want of a market! let us suppose, that in the fragments of history of the ancient nations of the earth, of those periods which are most involved in obscurity, we should find an imperial rescript to this effect, what would be the inevitable conclusion of the historian? that, if the chief magistrate of the government could at pleasure starve one part of the people while another was rioting in plenty, that the individual who held this power was the greatest despot on earth, and the government a purely unmixed despotism. but, sir, it would be improper to draw any such conclusion here, because we are the most enlightened people on earth--i believe we have placed that on record. it was nothing but the protection of the navy of the united states, and a desire of avenging the attack on the chesapeake--for, among all the causes of the embargo, we hear of none oftener than the attack on the chesapeake;--it was nothing but a defence, not only of the commercial interests, but of the naval strength of the nation, which created this dictatorship in the person of the chief magistrate. it was not that we are naturally more prone to slavery than others, but it was for the preservation of our national defence, (if that be not positively opposed to national defence which costs four millions, and which, when greek meets greek, and the tug of war comes, must take refuge under such measures as those i have mentioned.) no, sir; my object in the bill which i presented to the house was a great one: it was to enable us to dispense with a loan to the acknowledged amount of $ , , --to enable us to dispense with taxation, to an amount which no man can calculate, (if, indeed, the system which passed this house was constructed to bring in revenue at all). it was not a little, paltry affair of reducing a couple of navy-yards; not to bury the dead, who have been already interred in the marshes of the mississippi; not twice to slay the slain: it was for a great public object. really, sir, the reduction of the gentleman from pennsylvania (mr. smilie) reminds me very forcibly of an incident which is said to have taken place at the discovery of the gunpowder plot. when commissioners were sent into the parliament vaults, to examine into the situation of the gunpowder and combustibles collected together for the purpose of blowing up the king, the parliament, and the whole constitution, they returned and reported that they had found fifty barrels of gunpowder; that they had removed five-and-twenty barrels, and humbly trusted that the remaining five-and-twenty would do no harm! this is precisely the reduction which the committee and the gentleman from pennsylvania have agreed to make. it is a reduction which will not do any effectual service, and i therefore hope the house will not accord in it. but, we are told that great and gigantic events in europe are to be arrested. that which the british navy cannot do, i suppose, or that which the combined continental forces opposed to her cannot effect, is to be decided here by three frigates; for that is precisely the extent to which, if i understand him, he is willing to go. it seems, we are also to suffer a total loss of the ships to be sold, they being unfit for every other purpose. are they unfit for the east india trade? was not the first vessel which ever doubled the cape of good hope, under the flag of the united states, the old frigate alliance? and would not these vessels, if sold, be purchased for that and for other purposes; more especially when we consider the immense loss of tonnage which the united states have sustained--i will not say how, but when--within the last two years? but this, if well founded, would be no objection with me to the reduction of the navy. i am willing to put a clause in the bill to authorize the president to _give_ the frigates away, if he cannot _sell_ them. my objection to the expense is not merely to pounds, shillings, and pence--not merely to the counting-house calculation--but to expenses utterly incommensurate to the object to which those expenses profess to go, and to a system of organized public plunder. if we agree to make this reduction, however, according to the statement of the gentleman from virginia, (mr. bassett,) foreigners will purchase from us ships of the best construction in the world, on the best terms. i believe, if the gentleman's knowledge on the state of our public ships was as accurate as perhaps it is on other subjects, he would hardly suspect foreigners of coming to our markets for the purpose of buying those ships to annoy our commerce. who will become the purchasers--great britain? after having given her hundreds of thousands of tons of your shipping now sailing under the british flag, and manned her navy with your seamen driven from your employment, do you believe the admiralty will send across the atlantic to buy the hulks rotting at the navy-yard; or would it be a formidable accession to the british navy, especially when four of these vessels are absolutely unfit for any purpose whatever? i presume that even the emperor of france, if it were an object with him to have these famous models of naval architecture at antwerp, would hardly venture to purchase them, and run the risk of getting them across the ocean. i conceive you could hardly get insurance done on them at philadelphia or baltimore. the idea of keeping these vessels is absolutely idle, unless gentlemen are disposed to send their commerce on the ocean, and employ force in the protection of it. sir, i am extremely exhausted already--and i presume the house are fully as fatigued with me as i am with myself--but i will endeavor to go along with my loose remarks. the panegyric which the gentleman from connecticut (mr. dana) has been pleased to bestow on the american naval officers, i have not the least indisposition to subscribe to, so far as my knowledge will permit me to go. as far as my information extends--as far as i have the pleasure, and i may add the honor, of being acquainted with those gentlemen--there is no class in society whom i think more highly deserving. and i did hope, when the gentleman went into this eulogium on the one hand, and inference at least of censure on that which he has been pleased to term "the staff of the navy"--but which i suppose i may as well call the _civil branch_, who have the control and management of the civil service; not the men who fight the battles, but who pocket the greatest part of the emolument--that he would have been more particular. sir, i do know that comparisons are extremely unpleasant, and no consideration would induce me to go into them, especially after the observation of my friend before me, (mr. macon,) but the discharge of an imperious public duty. i can have no hopes of deriving any thing further than experience from the past administrations. it is to make use of this experience that i call the attention of the house to the comparative expenses of the navy under the several administrations. i find, from the treasury statement in my hand, made on the th of this month, that the navy under general washington's administration, cost $ , , ; that during the four years of mr. adams's administration, it cost $ , , , in round numbers; that, in the eight years of the succeeding administration, it cost $ , , . i make these remarks, because the statement differs from that made by the worthy gentleman from connecticut in this respect; that, when he made the expenditure under the last administration to amount to fourteen millions, he did, in my opinion, improperly saddle that administration with the expenditure of the year , viz: $ , , , authorized and voted under mr. adams's administration. from the mere glance at this paper it will be seen, that from to , the expenditure fell from the above sum of $ , , , to $ , , marking distinctly the retrenchment at the period of mr. jefferson's accession. the first year properly chargeable to the last administration is that succeeding the one in which they came into office, viz: . i find, also, from a comparison of the statements in the same document, that the most extravagant year of the second administration was the year --the year after i first had the honor of a seat in this house--when the expenditure amounted to $ , , . the most extravagant year of the last administration was the year succeeding its going out of office, the expenses of which were incurred and voted by it, viz: to the amount of $ , , . against the administration of mr. adams, i, in common with many others, did and do yet entertain a sentiment of hostility, and have repeatedly cried out against it for extravagance, and for profusion, and for waste--wanton waste--of the public resources. i find, however, upon consideration--whether from the nature of man, or from the nature of things, or from whatever other cause--that that administration, grossly extravagant as i did then and still do believe it to have been, if tried by the criterion of the succeeding one, was a pattern of retrenchment and economy; and i ask the house to put the question to themselves, whether we are likely to see, at any future period, an administration more economical than that of which we have just now taken leave? and this i say, without meaning to cast the slightest imputation on the present. the person now at the head of affairs, has, at least in one respect, conducted himself in his high office in a spirit dear to my heart--it is the spirit of a gentleman. the first session of congress under the last administration was a period of retrenchment. throw the session of last summer out of the question, and this must be the session of reform under the present. have we any reason to conclude, from what we have seen or heard, that we can look forward to any policy more economical than that of the administration of which we have just taken leave? i wish it to be clearly understood, that in the year , in which our expenses amounted to $ , , , we had three -gun frigates; six frigates, from to ; two of , of a large size; four of , smaller; eight from to ; three sloops of war and four brigs, from to ; and five brigs and schooners, from to guns--employing a total of , seamen. this administration, too, it should be remarked, not only built every frigate, every vessel of respectable force--yes, sir, built them from the stump--which the united states now have, but many others, which have been since sold, and the proceeds of which have gone into the treasury. at this time, then, when the united states had this formidable force afloat; when nearly , seamen were employed; (i know the documents only state , , but i am told from the best authority there were nearly , ;) when our flag at least triumphed in our own seas; when we had nothing of that system of drawing within our shell, which the gentleman from connecticut so justly derides; when we had not reached the soft-shelled state in which we were placed by the non-intercourse law;--at that time, the navy of the united states cost nearly three millions and a half, making for each seaman about $ . i know, sir, that these statements are dry, but they are useful in proportion as they are dry. according to the statement which my colleague (mr. bassett) has made, and which he has told you not only came from the secretary of the navy, but was in the secretary's own handwriting, the number of seamen which he had last year in employ was , , which cost the nation $ , , --for each man employed, within a trifle of $ ! now, sir, if every seaman under the last administration cost double the expense which was incurred for the same man under the preceding one, if the same system is continued, we have no reason to doubt that the seamen next year will cost double of their present expense. but, even suppose the expense to remain the same as it now is, will the representatives of the american people agree to maintain a naval force which costs us $ (within $ ) per man, the use of which no man has attempted to guess, much less to demonstrate! i wish to be indulged in a little further comparative political economy. i believe, sir, that the same good results in politics from comparing the merits of different administrations, that results in medicine and surgery from the dissection of the human body--that they are fairly to be tried by the same rules. i find, then, that in the year the estimated pay of the officers is $ , , and that the estimated pay of the seamen in the same year is $ , . and yet, sir, by the estimate now before me, and which any gentleman can turn to, made for the year , the subsistence of the officers, their pay, and that of the seamen, amounts only to $ , --a sum less, by nearly $ , , than the estimated pay alone of the officers in --while the expense of the whole establishment approach for the last year within $ , , of the expense of the year first mentioned. i am at a loss to account for these manifest inconsistencies, and i might say solecisms, in our political arithmetic. we have a navy which we are told employs , men, which costs within a third as much as a navy employing nearly , men, and yet, when we come to compare the great objects of expense--to wit: pay and subsistence of the officers and seamen, the reward of valor and merit--we find a contrast which i believe no man in this house is prepared to explain. now, sir--for the whole subject, thank god, is now before us--let us look at the expenses of the marine corps. i have always understood that marines were necessary in proportion to the extent of the navy--that such a force is put on board of every ship of such a number of guns. i find that in the year , when we had nearly forty ships of war in commission, manned with nearly , men, the expenses of the marine corps amounted to $ , ; and in , when we have ten or fifteen vessels of all sorts, manned with , seamen, the expense of the marine corps amounts to $ , . and yet, sir, if we look at the items, there does not seem to be a very great variation between some of the most important--for instance, i find that the clothing in was estimated at $ , , in at but $ , --and yet, the troops whose clothing costs $ , less, cost in the aggregate $ , more. but, if we look at some of the items of this account, we shall be struck at once with the difference. the pay and subsistence for instance in was $ , , in it was $ , . i have been at the pains even to note the prices of the most material articles of provision, and find that in the old estimate beef is rated at $ , pork at $ , and flour at $ per barrel; while in the last year the same articles stood in the estimate of $ , $ , and $ . the material article (flour) being much lower than in , and the market value of the others also, i believe the inference would necessarily follow, that the subsistence ought to have been cheaper. but, sir, look at their establishment at the navy-yard, and i believe we shall want no ghost--certainly no argument of mine--to show the cause of this difference of expense. then comes the navy-yards. of these, that of washington alone has cost nearly one-half of the sum expended on them all. well might my colleague say it was worth as much as the whole, when it had cost as much; when, indeed, we have witnessed a considerable town--and the most flourishing town, too, in this wide region called the city of washington--built out of the public treasury. yes, sir, we have economized until we absolutely have reduced the annual cost of a seaman from $ --as it was under the very wasteful expenditure of mr. adams's administration--down to the moderate sum of $ ! we have economized until a paltry fleet, consisting of vessels built to our hand--to say nothing of those that have been sold, and the warlike stores of which have been retained and preserved; which fleet was built, equipped, and every cannon and implement of war purchased under the old administration--has cost us $ , , , when it cost the preceding administration but $ , , ! is this no argument for reduction? the gentleman from connecticut (mr. dana) tells you he does not wish an annihilation, but a reform of the naval establishment. sir, as long as a single chip remains in that navy-yard, you will never see any thing like reform; as long as you have a chip of public property--one chip of live oak belonging to the united states--you will have a man riding in his carriage, with a long retinue and deputies and clerks to take care of it. and, sir, if the gentleman from connecticut does not mean utterly to disgust the people of the united states against a navy--if in truth he is a friend to a navy--he ought to join and put down this navy-yard, and not, with my friend from north carolina, (mr. macon,) keep it up, in hopes the enormity of the evil will at some time or other correct itself. among the many reasons offered to this house for retaining the various parts of this establishment, no one said a word in favor of the marine corps--that went _sub silentio_--but a great deal was said in favor of washington. we were told that our fleet might be _copenhagened_, and that it was therefore necessary to stow it away here. we also heard of the great press of work in the large towns--of the mercantile employ which there came in competition with that of the united states. i believe, sir, that our workmen, and men of all descriptions, from the highest to the lowest--i speak of subordinates--have long ago found the truth of the old proverb, that "the king's chaff is better than other men's corn." but it seems, that in order to get a commodity cheap, we are not to go where it is to be had--oh no, _there_ is competition!--but we must bring workmen here in the mail-coach, by which conveyance i understand not only _live stock_ for the navy-yard but copper bolts, and such _light articles_, are sometimes brought, i suppose, to get out of the way of competition--competition in the markets of philadelphia and baltimore, where they are bought at private sale. in this way have seamen, in some instances, been conveyed; and unquestionably every material of ship timber and naval store has been repeatedly brought from norfolk to this place at an immense cost, worked up here by men collected from baltimore, philadelphia, &c., in order that, so worked up, it might go back to norfolk, there to remain. but, sir, if our object really be to prevent our fleet from being _copenhagened_, we had better put it above the falls of niagara. there it would unquestionably be most secure, unless the party on the other side of the lake should fit out a fleet to attack it; in which case, i suppose, we must resort to another series of measures similar to those lately adopted for the protection of commerce and the navy. an embargo to protect ships of war! this is, indeed, putting the cart before the horse. we are to have a navy for the protection of commerce, and all our measures in relation to it are calculated on the basis of keeping it (poor thing! like some sickly child) out of harm's way! on the same principle of economy on which the navy-yard is kept up here, viz: for fear that merchants and others should come into competition with the government, i presume, we have sent abroad for workmen to carry on the public buildings. if the navy-yard is to be kept up here merely that it may be under our eye, i would humbly suggest, sir, that we first pluck out the beam that has so long blinded us. we need only to do that to see this building falling to pieces over our heads; and yet an enormous appropriation is called for towards finishing it, which i have no doubt my worthy colleague (mr. lewis) will press very strongly before the close of the session. i had forgotten the gunboats; and perhaps the best notice which can be taken of them, is that which is taken on some occasions of other things--to pass by them with contempt. they are not worth bringing into account, except for their expense. children must have toys and baubles, and we must indulge ourselves in an expense of many millions on this ridiculous plaything! but, sir, the sale of our superfluous vessels met with the high objection that they were to be purchased up by christophe and petion, and that the constituents of my colleague (mr. bassett) are to be terrified, if not into bodily fear, at least out of their peace of mind, by these vessels; and, at the same time, we are told that christophe was in such good credit, only forty miles off, that vessels are building at baltimore for his use; and yet, sir, no gentleman has brought forward a bill making it penal to supply these barbarians with ships of war and warlike stores. in other words, sir, to avoid the possibility of christophe and his seamen foundering on board these rotten hulks, my colleague would much rather drive him into baltimore, where he can purchase good vessels, which will answer his purpose much better than these frigates, which the barbarians would not know how to manage, and which are not calculated, from their great draught, for predatory warfare in the west india seas. my worthy colleague has given us a curious illustration of the superiority of naval over military force, by comparing the navy of great britain with her army. i suppose, if the argument were retorted on my colleague by a comparison of the army of bonaparte with his navy, he would say that the same amount was not there expended upon the navy as upon the army; whereas in england, the amount of money expended on each is equal. but, does not my colleague know that one and the chief cause of the superiority of the british navy over the army, is, that in the navy men rise by merit--that they do not get in, to use a seaman's phrase, at the cabin windows--and that the army, if we give credit to the parliamentary investigation, is a mere sink of corruption--a mere engine of patronage--a place in which a corrupt commander-in-chief acts according to his vile pleasure, and the pleasure of all the pimps and parasites and harlots who environ him. this, sir, is the cause of the superiority of the naval over the military force of great britain. but, when the british navy shall have effected what the armies of other nations from time immemorial have done--when it shall have subjugated whole continents--then will i agree in the superior power of naval over military force. i have no hesitation in saying that i would rather vote for naval than military force, and it is because a naval force has not the same power as a military one. i have never heard of a despotic power created by a naval force, unless perhaps in the chieftain of a band of pirates. but it would appear that the politics of my unfortunate friend from north carolina, (mr. stanford,) who sits near the speaker, are a mere counting-house business of pounds, shillings, and pence, or dollars and cents; that, in fact, the spirit of lucre is transferred from the warehouses and counting-rooms of the merchants to the tobacco-fields and cotton plantations of the southern planters; and that, to such a pitch has the patriotism of the mercantile class risen, that they are really ready to sacrifice one-half of their property for the protection of the government of their country. if the gentleman from new york (mr. mumford) will permit me, i will protest against this idea. i have once before protested in company with that gentleman, and i hope he will permit me to protest, even when i have not the sanction of his respectable authority. with regard to the politics of my worthy friend from north carolina, i recollect very well, in the days which were called the days of profusion, patronage and terror, his politics were not of that minute and microscopic grade that no scale could be graduated sufficiently low to measure them; that, if his republicanism was a matter of pounds, shillings, and pence, then and now, it was not that sort of republicanism which was too cheap to be measured by the value of the smallest known coin, even by a doit. i really feel something like sympathy with the gentleman from north carolina--and it is not at all to be wondered at; for the republicanism of that gentleman used to be that which i always have professed--and if the remark applied to the gentleman from north carolina, who i believe is not yet quite out of the pale of the political church, how much more forcibly did it apply to an unpardonable political sinner like myself! with respect, sir, to this patriotism, or this republicanism, that has left the tobacco fields and cotton plantations, and taken up its dwelling in the counting-house, i beg leave to express my doubt of the fact. i never have had that high opinion of the mercantile class expressed by some gentlemen in this house. i think of them as of other men--that in proportion to the temptations to which they are exposed, so are they virtuous or otherwise. but, sir, i have not and cannot have confidence in a man to whom the great emperor has given a paternal squeeze, whose property is sequestered at bayonne or st. sebastian--i disclaim any thing like personal allusion; i speak of a class--i cannot have the confidence, on the subject of our foreign relations, in a man so situated, that i can have in the planter or farmer whose property is growing on his land around the house in which he nightly sleeps--and why? because, _mutatis mutandis_, i should not have the same confidence in myself. i should not believe it possible, if i had rich cargoes under sequestration in france, that i could vote free from the bias which the jeopardy of that property would throw on my mind. sir, i have been very irregular, because i have been compelled to follow, not the current of my own ideas, but the objections started by gentlemen in different quarters, and (as it is the fashion to express it) on different sides of the house, whom i have found united against the bill as reported by myself. i would ask, in a few words, if we ought to continue this establishment in its present state? i ask if it is necessary? for the expense of a navy has been proved to be in inverse ratio to its utility. to what purpose do we keep up the marines, another branch of the establishment? if i am correctly informed, these men are willing to run away whenever they have a chance to desert--if they can get an opportunity--and i am willing that they shall quit the service without being exposed to be brought to a court martial for desertion. nothing, indeed, was said on the subject of the marine corps, when the gentleman from maryland (mr. key) moved to strike out the whole section of the bill. fertile as the gentleman may be in reasons, he did not offer one. he must have supposed it to be perfectly correct that a marine establishment should be kept up for a navy employing , seamen, more expensive than the same establishment for a navy employing , . it was, indeed, facetiously urged in the select committee, as a reason why these men should be retained, that they came to this house regularly on sundays to serve the lord--to assist at the weekly pageant here performed. sir, far be it from me to say, or even to think, with the protector cromwell, that this is a house where the lord has not been served for many years. but, permit me to state, that in our country, it is the practice to pay no man out of the public purse, even for advocating the cause of other people with the most high, much less for advocating his own. in other words, that when men with us serve the lord, they do it at their own expense. we have heard to-day, sir--and i hope the report of congress at their next session will verify it--that a grant of power to the executive in relation to any subject--say borrowing of money--does not necessarily imply an exercise of that power. we have heard, too, that notwithstanding the power devolved on the president of the united states, by the bill authorizing him to borrow to an amount of upwards of five millions of dollars, which this day passed this house, to enable the government to get along, we shall at our next session probably be presented with the joyful tidings that it is not necessary to make use of the power, at least in its full extent; but it depends upon our own act, whether this expectation be realized or not. we are, in this instance at least, of that description of prophets who have it in their power to bring about the event they predict. and i do earnestly hope that the house will not, by a disagreement with the report of the select committee, insure the defeat of their hope--the nonfulfilment of the prediction. i hope we shall take up the subject, and go through with it; that we shall account, and account rationally too, for some of the facts at least which i have presented to the house this day, in terms extremely defective, i know; but the time was short--now or never--and i presented them in the only mode in which i could possibly do it. in the course of my observations, i think i forgot to mention that when the united states kept forty sail of armed vessels afloat, and employed , seamen, we had no navy-yards at all. if we had, there must have been some extraordinary oversight committed by the then secretary of the treasury; and i believe politicians were not any more apt then than now to omit any items of public expense; they crowded in all they could. in the estimate which i hold in my hand, there is no item of that expense. i hope, if the house agree (which god forbid!) to so much of the report of the committee of the whole as retains the frigates and ships of war, that they will at least consent to put down the navy-yard at this place, and break down the supernumerary marines. really, sir, i am fond of music, but i do not mean to grant $ , of the people's money annually for a song. i hope at least that the marines will be reduced, and that we shall retain at least not more navy-yards than ships. what would an honest dutchman in the west think of a man who kept as many stables as horses, and those of the most expensive construction, too? i have done, sir. i have endeavored to discharge my duty. no man is more sensible of a failure in the manner than i am; but i will thank any one to convince me of the utility of a navy, according to the doctrines and practice of the new school, and to facts, as far as they have been stated. mr. bassett said that his colleague could not always adhere to the principle that it was his duty to ferret out every error. error is the lot of human nature, said mr. b., and no one is infallible. give a small authority to-day, and it will increase to an unexpected amount before to-morrow. i am authorized to state that such has been the case in the navy department; that under the late secretary of the navy large expenses had been incurred; and that before he left his office he commenced a reduction of them. since the present secretary (mr. hamilton) has been in office, the expenditures have been much reduced. in the navy-yard at this place, for example, a permanent reduction has been made in the expenses to the amount perhaps of or per cent., and a very considerable reduction also as to immediate disbursements. it is nevertheless our duty, after the suggestions that have been made, to commence a thorough investigation, and i can only regret that the subject has been introduced to our attention at so late a period of the session. instead of regretting what has been said, i am glad of it, and hope that at an early period in the next session an investigation will be made. without any particular direction of the house, the committee of the naval establishment thought it their duty to examine the whole establishment at the navy-yard in this city. all the good expected from doing so was to convince them that the eye of the government was upon them. i am proud to say that not only myself, but every gentleman of the committee with me, was much pleased with the appearance of things as they stood. it was not in our power to investigate minutiæ. on visiting the establishment of the marine corps we saw every thing in order; we saw the armory establishment, wherein we discovered that arms which had been injured were usefully and handsomely repaired. as well as we could discover by the eye, every thing was pleasing to my mind--and one innovation in discipline in the marine corps gave me very great satisfaction, viz: the substitution of solitary confinement for personal chastisement. in the navy-yard, the expense of which has been much complained of, we saw great piles of useful buildings. these were not constructed without cost. the present establishment there, in addition to store-houses, &c., consists of an extensive forgery, where all the iron work for the navy is done, a lead foundry, a brass foundry, where articles are made out of worn-out old metals, which otherwise would be of no use. i was desirous, both for my own information as well as that of the house, to procure an account of the work done at the navy-yard, to compare it with the expense--for that is the only way of fairly estimating the value of the establishment; but the time allotted to us during this session is not sufficient to attain that object. some facts i will also mention, which, though not from an official source, are known to me as matter of fact, viz: that the vessels now in service have been lately repaired in so complete a manner that they are worth more than when they were built. the president, the united states, the chesapeake, essex, john adams, and others, were repaired at the navy-yard at this place, besides the congress, now repairing. there have been several small vessels also built here. in short, i believe that since the establishment of the navy-yard here, there has been but one vessel repaired any where but at this yard. the constitution was repaired at boston. when we come to get the account of the expenses of that ship's repairs and compare them with the expenses of repair at the navy-yard in this city, we shall know how to appreciate that object. a full examination of it would, i feel convinced, entirely reconcile us to the great amount apparently expended here. a remark made by the gentleman from connecticut (mr. dana) here applies with great force: that it was indispensably necessary to economy that there should be system and order; and how shall we accomplish that object but by regularly established navy-yards? can you have economy when you go into market to bid for what you want? can you expect system and order unless you pay for it? you cannot. money is well laid out if it be done with honesty and integrity to pay for system and regularity. i did not yet mention one particular fact on the subject of naval equipments, which i should have done, in the article of sail cloth, making an immense difference in the expenditure of and . the gentlemen acquainted with the prices at these times could inform the committee that the difference in the prices of sail duck is somewhere about per cent. i will mention another fact: that although the president has power to employ , seamen, he has employed but , men, who have received bounties. sound economy would authorize the retaining them a few months longer, till we come here again in the fall, till we know whether it be proper to disband them or not. although friendly to a naval force, i am not for keeping up any great naval force when there is no appearance of danger. at the present evil time, when every thing is uncertain, i am not for giving up one single atom of defence. if gentlemen will but cast their eyes along our seacoast, and look at our unprotected waters, at the situation of my particular district, they would like me feel the necessity of some floating security; they would feel the value of that peace of mind necessary to me and to my constituents. with these observations i shall dismiss the subject. some further remarks were made by mr. macon and mr. randolph. the question was stated on concurrence with the committee of the whole in striking out so much of the bill as directs the unconditional sale of all the frigates but three. mr. randolph called for the yeas and nays on this question, considering it the pith and marrow of the business; and as the vote would show who were the navy and who the anti-navy men in the house. mr. smilie said it would be remembered that his object in voting to strike out this part of the bill was to introduce the amendment he had offered in committee of the whole, viz: to place the navy on the same footing as in . the following were the votes on concurrence with the committee in striking out so much of the bill as relates to the frigates--yeas , nays . so that part of the bill was struck out. the first section, which requires the dismissal of all the seamen in service, except so many as sufficient to man three frigates, &c., was struck out--ayes . the next amendment made by the committee was to insert "washington" among the navy-yards to be retained. the yeas and nays on concurrence with the committee-- to . so the navy-yard at washington is among those to be retained. the next amendment was to strike out the section of the bill which reduces the marine corps to two companies. mr. randolph said on recurring to the documents he found the price of the ratio in to have been cents, whilst in the last year it was put ; so that rations were now nearly a third cheaper than they were nine years ago, and the difference in the expenses of the naval establishment was, therefore, the more unaccountable. i had also taken it for granted, said mr. r., that my colleague (mr. bassett) was right in his statement of the seamen's wages being only eight dollars per month. but, sir, here is a statement on the subject--and i only wish that in the estimate of last year we had had the same valuable details as there are in the estimate of the year --for the estimate in relation to the navy department for the last year is most shamefully deficient, as i could demonstrate if the house had time and patience and i had lungs. i find that there is in this estimate of a minute and detailed statement of every item of expense. instead of the wages being eight dollars then and twelve now, as my colleague has been told, the pay was then for able-bodied seamen seventeen dollars per month, ordinary seamen twelve, and boys eight; so that this saving in the pay does not account for the monstrous difference. i have not time to examine into the article of duck, but i believe the gentleman's duck will not swim any more than the rest of his arguments. i trust, sir, that the house will not agree to the report of the committee for this reason: referring to these documents, i discover that in , when we had nearly , seamen, we had marines; and in the year , when we have only , seamen employed, we have agreeably to estimate precisely the same number of marines. it would appear that something has taken place to render this species of force peculiarly valuable, or that these gentlemen possess a very successful art of keeping in, of not going out with others. and, sir, when i recollect the statements which i have heard on this floor and the sources whence some of them have probably been derived, i am not at all surprised that this navy-yard and this prætorian camp, and everything connected with it, should keep up to the old height when every thing else has diminished. eight hundred and ninety men! call them , and you have one mariner for every three seamen. i have no doubt, if the house act on the principle on which they have done heretofore, that we shall have very polite assurances that these men are of the greatest imaginable service and have wrought wonders in defence of the country, but i cannot for my soul understand how this species of force goes to quiet the mind of my colleague or of his constituents on the chesapeake. i have done my duty on this subject, sir. from whatever motive, of that motive i am alone the human judge. i have acted the part of a real friend to the administration of this government. like my friend from north carolina, i belong to that "faction" which brought him from a minority to a majority on the very ground i now occupy. i have heard before of a people being their own worst enemies--but what shall we say to an assertion that persons selected from the people for their wisdom and discretion, should be their own worst enemies? is it to the interest of the administration that these abuses should continue, and that loans and taxes should be resorted to to cover them? who, sir, are the true friends--i do not speak of motives--who in fact are the true friends of administration? those who move to abolish and retrench, or those who persevere in keeping up such establishments and resort to loans and taxes to defray the expense of them? are you willing that any part of the loan authorized by the act which unhappily passed this house this morning should be borrowed for the purpose of keeping up as many marines as were deemed necessary in , for treble the amount of naval force--and we then said it was a government of profusion and patronage--yes, sir, we heaped a great deal of opprobrium and many hard epithets on it. i am just as tired now of maintaining idlers, and dissolute idlers too, out of the proceeds of my property as i was when i first came into congress--and i care not whether it be under the administration of a president called republican, or of a man called a federalist. i could repeat the very words then used. i do say that i never see one of those useless drones in livery crawling on the face of the earth that my gorge does not rise--that i do not feel sick. i see no reason why we should not maintain sturdy beggars in rags as well as beggars of another description in tinsel. i have as much respect as any one for the man who risks his life in his country's service--and i have shown it; but the man who has drawn on a livery and quartered himself on the public because he has not sufficient capacity to get a living elsewhere, i will not foster. the change may be rung to the end of time--gentlemen may talk about pounds, shillings, and pence, as long as they please, but these men shall never have a single cent of money with my consent. i wish every ploughman in the country could come and see these people, keeping equipages, living in splendor, in palaces almost--i hardly know five men in virginia who could afford to live in such a house if their fathers had left it to them, much less if they had it to build, as some of these people occupy at the public cost. but because this proposition for reduction is made by a somebody, the cut of whose face or the cut of whose coat we do not like, we are to go on maintaining these locusts for spite. it is impossible to prevent the people from reading this. it may be said these are federal lies. ten years ago the same things were said to be democratic lies; but they were tested by the most enlightened among the people, and found to be truth--even the story of jonathan robbins was then all a democratic lie. you are to keep up the same number of marines that mr. adams kept up, but you maintain them at one-fourth greater expense, when not a man who hears me can pretend to designate the service they perform. i know you may be told these marines may be useful on shipboard, which, however, has not relation to the question before the house. the question is, how many marines are necessary, and in what battles are they employed? recollect, sir, that in this estimate of the expenses of these marines, the prætorian camp erected for their accommodation is not taken into question--nor do i believe there is a man in the house who can guess within a hundred thousand dollars what it has cost. i cannot--i do not even know the authority under which it was built. i suppose it was erected, like some other public buildings, without law, by authority unknown to the law. yes, sir, and this is the place for aaron burr and such choice spirits. when they wish to turn us out of the house, where do they look but to men who are incarcerated and would run away at a bare invitation, much more would follow a military leader to plunder, to office, to cordons and legions of honor? i cannot consent to retain them. i feel indignant--i feel mortified at the conduct of that part of the house of representatives calling itself republican--because i believe, sir, that the hint given by my worthy friend from north carolina, has been taken by the gentlemen of another denomination, and they have thrown their weight so equally on both sides as to poise the balance--they have worked a sort of political equation there. yes, sir, we must have fifty per cent. increase of the present _ad valorem_ taxes, and an additional third upon molasses and brown sugar, upon the articles on which the poorest families on the seaboard make their daily meal--and in return we shall have a man, the texture of whose coat, whether homespun or imported, you cannot tell for the gold lace with which it is covered, and an establishment of marines at an expense of more than two hundred thousand dollars--and whom to protect? to protect the constituents of my worthy colleague, in the enjoyment of their peace of mind? when you consider in what manner every claim of merit is treated in this house--when you consider the poverty and misery in which thousands and tens of thousands of the people of the united states live, from whose earnings you daily take a part, i hope you will pause and reflect before you dispose of one doit of this sum on such objects. why, sir, should a poor man laboring out of doors not be suffered to take his breakfast or give it to his children without paying a tax to the government, in order that the man who does not labor, and whose head is of no more use to the community than his arms, should live in idleness? but, unfortunately for myself, i have been here too long--i have seen the profits made by individuals with no other visible resources than the cheese-parings and candle-ends of the government; and it has got to that now that every branch of our establishments has become a department--we have almost got a door-keeping department--not only in this house but elsewhere. but all i have said is wrong, very wrong--we are all republicans, all federalists--all is right--this is all an idle clamor, made to effect a given purpose. sir, i might go on and compare these two books of and and take up every item of expense, military, naval, or civil--the civil branch of the army as well as the military, the civil as well as the naval branch of the navy--they are all, all alike. in this book (the estimate of ) is such a detailed statement that the value of every ration is stated, and the amount of force in detail. what have we here, in the estimate of last year? in relation to the navy you have some three or four pages. i really had not a conception, till i came to examine it, that there could be such a difference between the estimates of and . but if i am overruled, which i think highly probable from the appearance of things, we shall have the satisfaction, in case i return here next year, and messrs. pepin and breschard give their attendance, of a fine band of music to entertain the audience--and for this undoubtedly the good people, the fishermen of marblehead, and the planters of virginia, will be proud to pay $ , . but this is all right--it is all republicanism! all federalism! mr. w. alston spoke in favor of reducing them, and messrs. lyon, mckim, bassett, and dana, against it. the question on concurring with the committee in striking out this section was decided in the affirmative--yeas , nays . so the section for reducing the marines was stricken out. a motion having been made by mr. randolph to amend the bill so as to disband the _master commandants_ now belonging to the navy, mr. mckim said he should like to know the gentleman's reason for getting rid of them. the gentleman had appealed to the house to know why they would retain them? the _onus probandi_, however, lays with the gentleman himself. he ought to show why they should be dismissed. mr. mck. said he did not like to vote in the dark. his vote given without knowledge might derange the whole system. he hoped the gentleman from virginia, (mr. randolph,) from his extensive knowledge on the subject, would favor them with the reasons why these men should be dismissed. mr. boyd said he did not rise to make a long speech but to tell the house that he felt much imposed upon by the comparisons made between the late and federal administrations. if i were to do all this, said he, i might get into the newspapers and make believe that i am the first man in the nation; but i take things as i find them. the former administration may have acted rightly in their day; but reason is to guide us. sir, is it parliamentary, is it genteel, or agreeable to common sense, that a hundred and forty men should sit here listening to what one man says, and he having recourse to papers in every one's reach? i had rather consult the papers for myself: for i should not garble them, taking just what suited me, but should read the whole. no doubt gentlemen do what they think answers their own purpose and i what answers mine; and my purpose is the good of the nation. if a larger navy was necessary, i should vote for it; if an army of thirty thousand men was wanted, i should vote for it. sir, have we no rights to defend? there never has been a time, in my opinion, since the government was formed, that so preposterous a proposition was offered as this one to reduce the army and navy at this time--for what? are the orders and decrees altered? i understand all spain is in a state of blockade. for what have you given money to build fortifications? pounds, shillings, and pence, are the order of the day--we sell a little tobacco, a little cotton--and our independence goes to wreck. but gentlemen even on their own principles go to work the wrong way. if they submit to get a little this year, they will get less the next, depend upon it. i think it my duty to speak in this open manner--not to please gentlemen, but for my country's good. mr. randolph said in reply to the gentleman from maryland, who wished to know why he wanted to get rid of the masters commandant, that it was because there never had been a reason assigned in this house for their creation. the act which established them had come from the other house at the end of a session; it had not originated in this house, and he had never heard a reason assigned in favor of them--and he had no knowledge that the public service had suffered from the want of them during the whole of mr. adams's administration, and more especially not from the th of march, , to april . that gentlemen who voted against the proposition to reduce the army and navy, said he, should vote against my amendment is nothing more than natural; and i suppose if those averse to reduction had been put on the committee, we should have had no such bill reported. if gentlemen who voted for the general proposition that it is expedient to reduce the army and navy are willing to be held up as bowing the knee to foreign powers, let it be so. they were a large and certainly not disrespectable majority. i feel no sensibility on the subject. the house may act as it pleases; in whatsoever manner it may act, it will not affect my vote or conduct. i stand here, as i always have done, and always will do, on ground independent of all party considerations. if this amendment be submission to the belligerents, what is the proposition of the gentleman from pennsylvania, (mr. smilie,) which is acknowledged to go further in reduction than the bill as first reported? it is in vain to oppose a reduction of the army and navy on the ground of submission. gentlemen should prove that they are resistance. what resistance do they afford against their decrees or confiscation? have they taken a single man out of a ship of war, or one man out of the dungeons of paris or arras? this is as plain a question of expediency as whether you will alter the time of holding the courts of the state of maryland or any other question. mr. r. had however some expectations that they should have some war speeches on this occasion, and they had them accordingly. they had heard some on the general proposition for reduction, and one this morning from the gentleman from tennessee (mr. rhea) on the bill. was it proposed now to declare war? was it believed that the gentleman from pennsylvania (mr. smilie) was disposed to submit to the belligerents? that the gentlemen on the other side of the house were divided on that subject, as they were upon the question of the reduction of the navy? was the gentleman from massachusetts, (mr. quincy,) who represented the town of boston, so strenuous an advocate at this moment for war (and he supposed especially for war with england) that he was obliged to oppose a reduction on that ground? was the gentleman from maryland (mr. key) who represented the adjacent district, in the same belligerent temper? did he too oppose this proposition on the ground of resisting the belligerents or of making war with england? the very moment any political touchstone was brought to test the objections to the bill which the committee had offered, they dissolved at once, and the opposition to it resolved itself into the principle of old federalism. it was nothing else. it was office! patronage! expenditure of public money! and hence it was said (and for no other cause whatever) that these strange votes were seen. the gentleman from connecticut, perhaps the only member or one of the very few on that side of the house who had a seat on this floor during the administration of mr. adams, opposed the bill because, as he had told the house, he preferred his old principles--they had triumphed over his recent disgust, though even he acknowledged that great abuses had taken place. the gentleman had declared that he would stick to his old principles; and i, said mr. randolph, am for sticking to mine; and my two friends from north carolina (messrs. macon and stanford) who were also members under mr. adams's administration, stick to their old principles, and i will venture to say will never relinquish them. it has not effected a change in the gentleman from connecticut, that he and his friends are out, nor a change in my friends from north carolina--i will not say that _they_ are in the power, for of that they have not much to boast; but that _their friends_ are in power. and why should this clamor be raised on the question whether you will or will not make a formal renunciation of the old articles of political faith? although, on reconsideration, perhaps i have no cause to be surprised, and ought to pardon gentlemen. it is a situation in which no man likes to be placed, to be brought up and compelled either to forego present gratification or make a formal renunciation, something like the christian at algiers, who hesitates whether he will put on the turban and share the plunder of the day, or consent to abide by those principles which he received from his parents and from heaven. no doubt there are many who would infinitely prefer to slip over or slide under this question; and i am therefore glad, sir, that the decision of the chairman has enabled me to present the chalice to their lips and compel them to swallow it to the dregs. mr. rhea said that the gentleman from virginia held no obnoxious cup to him; for he should vote against the gentleman with the greatest imaginable pleasure. as to all that had been said about patronage, it had no weight with him. he had no relation in office, nor did he ever expect to have one. he had no object in view but the well-being and safety of the nation. he was unwilling to give the least evidence of a determination to relinquish any kind of opposition (though it was scarcely apparent) to the wrongful doings of other nations against the united states. he had made no war speech; if he had intended that, he should have made rather a different speech from any the house had heard from him yet. if they went on in this way he said they would hold out an inducement to all the marauders in the universe to come and plunder the trade of the united states as they pleased. he repeated that he did not make war speeches; but he thought our situation required a war speech against somebody--he would not say who. we have indeed, said he, had sufficient provocation for war; and i say now, as i have said often before, that had we taken a proper stand at a former time, the united states would have avoided all their present difficulties. but so long as we go on as we have gone, and encourage a peace in war and a war in peace, so long as the federalists teach us to acquiesce in all the iniquitous decrees of the belligerents, so long will our difficulties continue. i shall vote to continue the navy, and i hope that this proposition, and any other to reduce the naval establishment, will be negatived; for on this establishment depends the protection of our maritime border, and safety of the people upon and near it. it may be said that i and my constituents are safe, but i will act for others who are not so. mr. dana congratulated the house that the only point of controversy now with gentlemen who had heretofore complained so loudly of federalism, was, that in coming up to the mark of federalism they should not do it with so much violence as to go beyond it. he thought it would be well if our relative expenditures could be brought back to the worst year of mr. adams's administration, and our measures as to foreign affairs to the first eight years of the federal administration, which, when it resolved, did it so sincerely and so unalterably. he congratulated the nation that it was no longer an argument against a measure that it had been adopted by those called federalists; he rejoiced that this slang of party was scouted from the house--that it was no longer a piece of artillery successfully wielded on all sides. he hoped it would forever be dismissed, and that gentlemen, convinced of their error, would come up and place their recantation on record. if for the same sum as was expended for those objects by the federal administration they could obtain the same number of fighting men on land and water, he thought they would make an extremely good bargain, when compared with the state of things which now existed. until this session he said he had been unapprised of the enormities of expenditure in the navy department for so little effect; that there had been so much of waste and so much done instrumental to the extension of patronage. he wished it however to be understood that he deemed it essential that those who compose the main body of the army and navy, those on whom the brunt of the battle falls, those who stand in the front of danger, should be well paid, well fed, and well clad, in such a manner that one need not blush to see them on parade appearing like the ragged recruits of sir john falstaff. when he saw the soldier placed in this unfortunate situation, and the squalid unfortunate troops pointed at as objects of pity, and when this situation was the result of a want of attention in those who had the care of them, he could scarcely give utterance to his indignation. mr. d. said he did not feel disposed to diminish the number of fighting men afloat at the present time; though he was not influenced at all by the resolution which the house had passed not to submit. he had sometimes thought that they had passed too many resolutions to be resolute. no, sir, said he, if, when we were insulted on the water; if, when a british squadron remained in our waters in defiance of our laws, we had made use of our navy, our officers and men would have done their duty; but it was then deemed more expedient to deal in paper than in powder and shot. i feel that we have gone far enough, and too far, in the downhill course of debasement; by much too far. i would dismiss all this parade of words. i really would cease to think to terrify the french or british nation by them. although those nations have hated each other for years, they look up to each other with reverence, because they know that victory would be glorious. i wish, too, that we should proceed in such a manner as that our actions should not wear the appearance of gasconade, and that we should march up to the works with a steady eye. i think, sir, that the population and strength of the united states and their commercial capital being augmented, it may be proper, after a lapse of ten years, to have a peace establishment somewhat extended beyond the former; and i am therefore against so great a reduction as is proposed. on motion, the house then adjourned-- to --at six o'clock, after a sitting of eight hours. thursday, april . _reduction of the navy._ the house resumed the consideration of the unfinished business. mr. smilie moved the following as a substitute for the sections stricken out: "and further, that the president of the united states be, and he is hereby, authorized to keep in actual service as many of the frigates and other public armed vessels as in his judgment the nature of the service may require, and to cause the residue to be laid up in ordinary in convenient ports; _provided_, the whole number of officers and seamen shall not exceed that fixed by the act 'in addition to the act, supplementary to the act, providing for the naval peace establishment, and for other purposes,' passed the st day of april, ." mr. s. spoke in support of his motion, and remarked that it would produce a saving in the next year's expenditure of near a million of dollars. mr. bacon, after observing that the amendment now offered would go to reduce the number of seamen in service to two hundred and ninety-five, a number smaller than that authorized by the bill as originally reported, as it would not man more than one frigate, three armed vessels, and the twenty-two gunboats at new orleans, moved to amend the section by including also the seamen (five hundred additional) authorized by the act of the d day of march, . mr. rhea said that this proposition amounted to just the same as the original bill, as respected the number of men to be employed. he asked whether it was proper to ask this house to do (in other words to be sure) that which they had the day before refused to do. this was no time for those who voted to increase the navy to vote to reduce it. what reason had been given for such a course? gentlemen had said that they believed if nobody attacked us, we should attack nobody, and that, therefore, we should have no war. gentlemen might have some internal evidence, incomprehensible to him, that we should continue in a state of peace, or might have some reasons evident to themselves; but unless these reasons were communicable, mr. r. said he could not consent to the amendment. they had been told that there was no such thing as a disposition in this house to go to war. how had this indisposition for war got into the house? mr. r. could not account for this dread of war. he said he had not the least disposition to give evidence of submission to foreign powers by putting down the small naval force we have; for doing so would evince our apathy and indisposition to protect our rights. if we go on in this manner, said he, we shall be the prey of every picaroon on the ocean. we shall become a prey to our black neighbors of st. domingo. for what reason are we to subject even our coasters to plunder and abuse? to save money! why, sir, if we do it we shall be plundered to an amount sufficient to fit out a little navy. at least let us defend ourselves against these black people of st. domingo. we shall have nothing to prevent the barbarian cruisers from coming on our coast, and there is hostility enough in europe against us to set those people, as well as the cruisers from st. domingo, against us. the reduction will not comport with the safety of the nation. the house has already declared by its vote that it will not sell any of the frigates. will it contradict itself by taking away the seamen? now that our naval force consists of picked men and the very best officers, i am unwilling to disband them and pick up men just as they are wanted. i am utterly against any reduction now, when we have no evidence of better times; for we have no official information before us to that effect. mr. bassett said he was about to have proposed an amendment, but was prevented from so doing by mr. bacon's. he wished to retain the first part of mr. smilie's amendment, and to add to it a proviso that the number of seamen should not exceed two thousand seven hundred and twenty-three, (the number now in service.) the effect of the amendment thus amended would be to give to the president an authority which he has not now, to cause the frigates to be laid up at any time he thought proper. mr. tallmadge spoke of the obscurity in which the amendment was involved by a reference to so many different laws. he could not vote for it, he said, unless he could understand it. on the suggestion of mr. bacon, mr. smilie modified his motion by making the proviso to read as follows: "_provided_, that the number of seamen and boys to be retained in service shall not exceed ----." this blank mr. bacon proposed to fill with one thousand five hundred. mr. randolph said he was afraid, after the pledge that this house had given to reduce the naval establishment, that that pledge was not to be redeemed; that the whole business was to end in smoke, unless some pitiful, paltry retrenchment, to the amount of a hundred thousand dollars, was made to enable them to swear by--to say here and out of doors, and to enable the public prints to say, that they had reduced the naval establishment. it is a matter of fact, said mr. r., that when the administration of mr. adams went out of power, they made the only reform which has ever taken place in the naval establishment of the united states, and that at the succeeding session no reform was made. the act of the d of march, , authorized the president, when the situation of public affairs in his judgment should render it expedient, to cause to be sold all the vessels of the navy except the frigates of the united states, constitution, president, chesapeake, philadelphia, constellation, congress, new york, boston, essex, adams, john adams, and general greene; and of that number the president was further authorized to lay up all except six. to the vessels laid up were attached one sailing master, one boatswain, one gunner, one carpenter, and one cook, one sergeant or corporal, and eight marines, and from ten to twelve seamen, according to the size of the frigate. this was the act which we found already passed when we came into power--i do not wish to be arrogant, but say _we_ to save circumlocution. by the same act were retained in service--mark that, sir--nine captains, thirty-six lieutenants, and one hundred and fifty midshipmen, to receive only half pay when not in actual service; and the officers dismissed under that act (and a very considerable number they were) received four months' pay in addition to their other emoluments as a gratuity on quitting the public service. this is the act on which we proceeded; and under that act you will find that the expenses of the navy amounted, in , to $ , . well, sir, it seems we were then of opinion that even our predecessors had in one branch of reform gone far enough. it was not my opinion; but it was the opinion of a majority of this house and of the other. in the president was authorized to buy or build four vessels, to carry not exceeding sixteen guns each, for the protection of our commerce in the mediterranean, and towards this object $ , were appropriated. it was not until that any increase took place in the naval establishment left us (if the expression may be pardoned) by the federalists. we had slept long enough, i suppose, on reform, and we made this little addition. but, sir, in the unfortunate year of , the memorable year of the schism, as it is called, the year of non-importation-act memory, in that year when we had a war message against spain on the table, and a message of a different character locked up in the drawer--in that year we passed an act which has been quoted, by which we repealed the second and fourth sections of the act to provide for the naval peace establishment; that is to say, we undid the reform which had been carried into execution by our predecessors--with a very ill grace, i acknowledge, and at the very last time of asking, on the d of march, , late at night--it was a forced put, no doubt of it--we passed an act in which we repealed the second and fourth sections of that act, and added to the officers of the navy as follows: instead of nine captains, to which number the federal administration had reduced them, and which number we believed for four years to be amply sufficient, we added five new captains--and yet we ought to recollect that in the interim between these two acts the frigate philadelphia had been wholly lost, and another frigate (the general greene) retained in the service by the act of the d of march, , worse than totally lost, as any one may see who will go and look at her remains in the navy yard--so that the number of officers made by congress in was in the inverse ratio to the number of ships, and, with two frigates less, we determined to have five captains more. this same act of april st, , only doubled the number of lieutenants. the act of the d of march, , reduced the number to thirty-six; the act of repealed that reduction and authorized the appointment of seventy-two lieutenants--it is true, sir, that the same act made no addition to the number of midshipmen, nor to the number of ordinary seamen then in service. then again the act of the d of march, , added to that number five hundred seamen, making the whole number of seamen , . subsequently they have been increased by the act of january , , as the house knows, to , --and an increase is authorized to the number of , , with additional midshipmen. i do hope that the gentleman from pennsylvania, and the gentleman from massachusetts, will be prepared to give this house some reason, when we have not added a single frigate to the number retained by the act of , when we have even lost two of those retained by that act, when several others are almost in the last stage of decay, why we should require five captains more than the federal administration required for a greater number of vessels, and why we should double the number of lieutenants? in other words, why the number of officers should now be fixed agreeably to the act of april , , rather than that of the d of march, ? sir, the gentleman from massachusetts has already demonstrated to the house, and i am thankful to him for it--i know with what authority any statement comes from that gentleman--that the real protection afforded to the constituents of my worthy colleague by the bill, as reported by the select committee, is greater than that afforded by the amendment of the gentleman from pennsylvania--that is to say, that it would keep a greater number of seamen employed, with fewer officers to be sure, because we retain only as many as we want. the efficient protection afforded by the bill as it originally stood is greater at a less expense--because that branch of the naval service of which i have been compelled to present so hideous a picture to this house is left by the amendment untouched. my worthy colleague (mr. bassett) stated yesterday--and i confess it was quite novel to me; i felt so astonished at it as not only to be unable but absolutely to forget to reply to it--that before he left the department, the ex-secretary of the navy had commenced a system of economy, which system it seems is now prosecuting with renovated vigor by the present secretary--the mantle of elijah has descended on the shoulders of his successor. i am sorry, sir, to differ with my worthy colleague on so many points; but i am really not sorry that circumstances have put it in my power to prove, from the most incontestable authority, that where i have the misfortune to differ from him, i am most indubitably supported by facts. now, sir, the first year's expenditure under the late secretary of the navy was $ , . even in that year the appropriation was exceeded, and we had to pass an appropriation bill to make up the deficit; and from that time to his going out of office, the expenditure of that department has regularly increased. the second year, the expenditure was $ , , ; the next year, $ , , ; the next year (and this was the year the philadelphia was taken--she was taken about december, , and that year, i believe, was about the most vigorous of the war) the expenditure was $ , , ; the next year, $ , , ; the next year, $ , , ; the next year, $ , , ; the next, two millions and a half within a trifle. now, sir, this is a specimen of such economy as does not suit my taste, nor, i believe, the taste of the people of this country. i believe it is in proof and in the recollection of every member of experience on this floor, that that department has long ago passed into a proverb of prodigality and waste; and if my honorable colleague will give himself an opportunity to probe it, he will find such was the fact. with respect to the present secretary of the navy, i have the best reason to believe that, on his coming into office, he did take various steps to introduce reform into the civil branch of the department--in regulating and checking the pursers, for instance. sir, a few days ago a bill was before this house for appropriating a small sum of $ , to prevent the most precious archives not only that this country but that any other country possesses, the evidence of the titles of our political independence, the title-deeds of the great american family, the great charters of our liberty, from destruction. the gentleman from pennsylvania (mr. smilie) did on that occasion vehemently oppose this bill, and on this ground--(the bill was brought in by a gentleman from massachusetts--mr. quincy) that though there was no impropriety perhaps in gentlemen on that side of the house voting for unnecessary expenditures of the public money, which in the present unexampled state of the treasury, might tend to embarrass the government--a strange doctrine to be sure--yet it did not become him to do it. i do hope that the worthy gentleman from pennsylvania, who could not find it in his heart to loosen the purse-strings of the nation for the purpose of preserving the valuable archives of the country, and which, if another fire should break out in the building at the other end of the palace, between this time and the next session of congress, might be irredeemably destroyed, for which those who were the cause of the destruction would have been answerable--if he would not vote money for this object, i hope he will not insist upon exceeding, in point of expense, as relates to the navy, the reform which our predecessors, the federalists, made before they went out of office, which we accepted at their hands and were contented to practise on for four years, and not compel us to go into unnecessary and wanton expenses authorized by the act of april, --when, i have no hesitation in making the assertion, and am prepared to prove it, a material change was effected in the principles of those in administration, such as i knew them, and such as they were practised upon for about the term of four years, when we began to find that patronage was a very comfortable thing, that office was desirable, that navies were not the bugbear we had thought them, and that armies were very good depositaries for our friends and relatives and dependents who had no better resource. i, therefore, move to amend the amendment of the gentleman from pennsylvania so as to reduce the navy to the standard of the act of . this is indeed, said he, a novel situation in which i find myself--it is unprecedented. little did i believe that the time would ever come when it would be my lot thus to press economy upon a republican majority--to intreat that they would come down, not to any ideal imaginary standard of perfection--not to any theoretical proposition of mine--but that in practice they would come down, on the subject of naval expenditure, to the standard established by their federal predecessors: and that too when we have lost, as i stated before, the philadelphia and general greene, and when, i believe, the john adams is in a condition that i will not attempt to describe--i understand this vessel is so cut down and metamorphosed that nobody knows what to make of her; that she retains nothing of her former character. when i make this motion, sir, i do it with an intention of moving other amendments to other sections of the bill, so as to make the service of the united states in relation to the navy-yards and marine corps comport with the reduction which will have taken place, provided i have the good fortune to succeed. mr. r. then moved to amend mr. smilie's proposition by adding the following: "and that the president shall retain in the navy service of the united states nine captains, thirty-six lieutenants, and one hundred and fifty midshipmen, including those employed on board of the frigates and other armed vessels to be kept in service; and that he be authorized to discharge all the other officers in the navy service of the united states; but such of the aforesaid officers as shall be retained shall be entitled to receive no more than half their monthly pay during the time when they shall not be under orders for actual service. _and provided further_, that all the commissioners and warrant officers who shall be discharged as aforesaid shall be entitled to receive ---- months' pay over and above what may be due to them respectively at the time they were discharged." mr. johnson expressed his hope that the house would come to some decision, without consuming more of the time of the house in debate. mr. smilie said he was seriously in favor of a reduction in the navy, and was therefore opposed to mr. randolph's amendment to his amendment. after some further remarks of messrs. randolph and dana in favor of a reduction, and messrs. mckim, boyd, and rhea of tennessee against it, the question was taken on mr. randolph's motion to amend mr. smilie's amendment, and negatived--yeas , nays . mr. newton then said he was anxious to do his duty; but could not consent to stay here when one-third of the house at least had deserted their seats and fatigue oppressed the remainder. he therefore moved to adjourn.--carried--yeas , after seven hours' sitting. friday, april . _mortality of the troops at terre aux boeuf._ mr. newton, from the committee appointed to inquire into the causes of the mortality which prevailed in the detachment of the army ordered for the defence of new orleans, made a long report, accompanied with various depositions and other papers. the report concludes as follows: "the committee, from a knowledge which they have acquired of the climate of new orleans and of the country surrounding it, and from the facts stated in the depositions, are of opinion that the mortality in the detachment ordered to new orleans is to be ascribed to the following causes: " st. the detachment consisting of new levies. " dly. the insalubrity of the climate, the summer and autumn of the year being unusually sickly. " dly. to the nature of the ground on which the detachment was encamped at terre aux boeuf, and the detention of it at that place during the whole of the summer, contrary as the committee conceive to the instructions contained in the letter of the secretary of war bearing date the th of april, . " thly. to the want of sound and wholesome provisions and of vegetables--the want of an hospital and of hospital stores and medicines. " thly. the excessive fatigues to which the troops were subjected in clearing, ditching, and draining the ground on which they were encamped. " thly. to the want of repose during the night, owing to the troops not being provided with bars and nets to protect them from the annoyance of mosquitoes. " thly. the want of cleanliness in the camp, the nature of the position rendering it almost impracticable to preserve it. " thly. the sick and well being confined to the same tents, which neither protected them sufficiently from the heat of the sun, nor kept them dry from dews and rains." the report and documents were ordered to be printed. saturday, april . _reduction of the navy._ the house resumed the consideration of the bill for reducing the naval establishment of the united states. mr. smilie's amendment was modified so as to fix the number of officers, &c., to be retained in service, as follows: thirteen captains, nine masters commandant, seventy-two lieutenants, ---- midshipmen and ---- seamen, ordinary seamen and boys. mr. mumford again moved to postpone the further consideration of the subject indefinitely--lost, yeas , nays . mr. randolph moved to strike out the numbers thirteen, nine, and seventy-two, in the amendment, being desirous of reducing the officers, if any part of the establishment. motion lost, ayes , noes . mr. n. r. moore called for a division of the question on mr. smilie's amendment. and the question was taken on that part of it which authorizes the president to keep in service so many of the armed vessels as he may think proper, and to lay up the rest in ordinary in convenient ports. this part of the amendment was agreed to--yeas , nays . the second clause of mr. smilie's amendment being under consideration-- mr. smilie moved to fill the blank for the number of midshipmen with "one hundred and fifty" (about half the number at present in service)--agreed to, ayes , noes . the question was stated on filling the blank for the number of seamen to be retained with "two thousand seven hundred and twenty-three," as moved by mr. bassett, and rejected, yeas , nays ; also the question was taken on filling with , , and rejected, yeas , nays ; also on filling with , , which was carried; and the house then adjourned. tuesday, may . _general wilkinson._ mr. butler, from the committee appointed to inquire into the conduct of brigadier general, james wilkinson, rose to make a report. the question on reading the report was taken and carried, to . the report is as follows: the committee to whom was referred the resolution of the th instant, directing an inquiry into the conduct of brigadier general james wilkinson, in relation to his having at any time, while in the service of the united states, corruptly received money from the government of spain, or its agents, or in relation to his having, during this time aforesaid, been an accomplice, or in any way concerned with the agents of any foreign power, or with aaron burr, in a project against the dominions of the king of spain, or to dismember these united states, and to inquire generally into the conduct of the said james wilkinson, as brigadier general of the army of the united states, report, that they have had under consideration the several subjects of inquiry, and have investigated them to the utmost of their power since the time of their appointment, but from the limited period in which they have acted, and from the extensive and complicated nature of the subjects, they are under the necessity of stating that they have not been able to make any thorough and conclusive investigation of the objects of their inquiry. such testimony, however, as they have been able to procure, they beg leave to submit as part of this report, and which may be referred to under the following heads and order: in relation to the first objects of inquiry, to wit: the receipt of money by general wilkinson from the spanish government or its agents, refer to the [here follows a list of papers, in number.] in relation to the second object of inquiry, to wit: the connection of general wilkinson with the agents of spain in a project to dismember the united states, refer to the [here follows a list of papers.] in relation to the third object of inquiry, to wit: general wilkinson's connection with aaron burr, refer to [here follows a list of papers.] in relation to the fourth point of inquiry, to wit: the conduct of general wilkinson, as brigadier general of the army of the united states, refer to the [here follows a list of papers.] the committee think proper, also, to submit the following papers relating to tobacco and other commercial transactions in which general wilkinson was concerned, from the month of ---- in the year , to the month of ---- in the year , to wit: [here follows a list of papers.] in making the last preceding statement the committee beg leave to remark, that from an examination of the sentence of the military court of inquiry, ordered at the request of general wilkinson, and of which colonel burbeck was president, it appears that the tobacco transactions of general wilkinson at new orleans in and constituted a material part of that inquiry, and that a copy of an account current was laid before the said court by general wilkinson and designated by no. ----, and several letters accompanying said account, supposed by the court to be in the handwriting of philip noland, the agent of general wilkinson. the committee conceiving that the papers collected by the said court would aid them in their investigation, made application for those papers to the secretary of war, but were unable to obtain them, they having been taken from the office by general wilkinson, as appears from the deposition of john smith, chief clerk in the war office. the committee then directed a subpoena to general wilkinson, requiring him to send or produce all the papers which had been used or collected by the said court, in obedience to which general wilkinson sent to the committee a packet of papers which did not contain either the account and letters referred to in the sentence of the court, or the defence of general wilkinson, nor have the committee been able to procure them, and, consequently, have not had it in their power to compare the accounts herewith exhibited with those which were laid before the military court of inquiry. for the further elucidation, refer to walter jones's deposition, marked w. j. the committee also submit the deposition of daniel w. coxe, authenticating the papers to which he specially refers, marked d. w. c. mr. gholson observed that the reading of the documents accompanying the report would take until midnight, at least, and he hoped there would be no objection to dispense with the reading of them. no one objecting, the reading of the documents was dispensed with, and the whole was ordered to be printed. _adjournment._ a message from the senate informed the house that the senate have appointed a committee on their part, jointly with such committee as may be appointed on the part of this house, to wait on the president of the united states, and inform him of the proposed recess of congress. the house proceeded to consider the resolution from the senate to appoint a joint committee to wait on the president, and acquaint him of the proposed recess of congress; and the same was concurred in by the house; and messrs. crawford and roane were appointed the committee on the part of the house. a message from the senate informed the house that the senate, having completed the legislative business before them, are ready to adjourn. mr. crawford, from the joint committee to wait on the president of the united states, and inform him of the proposed recess of congress, reported that the committee had performed that service, and that the president informed them that he had no further communication to make to congress during the present session. _ordered_, that a message be sent to the senate to inform them that this house are now ready to adjourn; and that the clerk do go with the said message. the clerk accordingly went with the said message; and, being returned, the speaker adjourned the house until the first monday in december next. footnotes: [ ] col. isaac a. coles, private secretary to mr. jefferson. [ ] by concurrence in the report of a committee, of which mr. madison was chairman, on the subject of a letter from mr. gunn to mr. baldwin, both members of congress; as well as on the case of mr. frelinghuysen. eleventh congress.--third session. begun at the city of washington, december , . proceedings in the senate. monday, december , . the third session of the eleventh congress, conformably to the constitution of government of the united states, commenced this day; and the senate assembled at the city of washington. present: nicholas gilman and charles cutts, from new hampshire. chauncey goodrich and samuel w. dana, from connecticut. jonathan robinson, from vermont. obadiah german, from new york. michael leib, from pennsylvania. outerbridge horsey, from delaware. samuel smith, from maryland. william b. giles, from virginia. john gaillard, from south carolina. william h. crawford and charles tait, from georgia. john pope, from kentucky. alexander campbell, from ohio. john gaillard, president _pro tempore_, resumed the chair. the number of senators present not being sufficient to constitute a quorum, the senate adjourned. tuesday, december . john lambert, from the state of new jersey, elisha mathewson, from the state of rhode island, and philip reed, from the state of maryland, severally attended. the credentials of charles cutts, appointed a senator by the legislature of the state of new hampshire, in place of nahum parker, esq., resigned; also, of samuel w. dana, appointed a senator by the legislature of the state of connecticut, in place of james hillhouse, esq., resigned, were severally read; and the oath required by law was, by the president, administered to them, respectively. _ordered_, that the secretary acquaint the house of representatives that a quorum of the senate is assembled and ready to proceed to business. _ordered_, that messrs smith, of maryland, and gilman, be a committee on the part of the senate, together with such committee as may be appointed by the house of representatives on their part, to wait on the president of the united states and notify him that a quorum of the two houses is assembled and ready to receive any communications that he may be pleased to make to them. a message from the house of representatives informed the senate that a quorum of the house of representatives is assembled and ready to proceed to business. the house of representatives have appointed a committee on their part, jointly with such committee as may be appointed on the part of the senate, to wait on the president of the united states and notify him that a quorum of the two houses is assembled and ready to receive any communications that he may be pleased to make to them. on motion, by mr. smith, of maryland, _resolved_, that james mathers, sergeant-at-arms and doorkeeper to the senate, be, and he is hereby, authorized to employ one assistant and two horses, for the purpose of performing such services as are usually required by the doorkeeper to the senate; and that the sum of twenty-eight dollars be allowed him weekly for that purpose, to commence with, and remain during the session, and for twenty days after. mr. smith, of maryland, reported from the joint committee that they had waited on the president of the united states, and that the president informed the committee that he would make a communication to the two houses to-morrow at o'clock. wednesday, december . timothy pickering, from the state of massachusetts, and stephen r. bradley, from the state of vermont, severally attended. _president's annual message._ the following message was received from the president of the united states: _fellow-citizens of the senate and house of representatives_: the embarrassments which have prevailed in our foreign relations, and so much employed the deliberations of congress, make it a primary duty in meeting you to communicate whatever may have occurred in that branch of our national affairs. the act of the last session of congress concerning the commercial intercourse between the united states and great britain and france, and their dependencies, having invited, in a new form, a termination of their edicts against our neutral commerce; copies of the act were immediately forwarded to our ministers at london and paris, with a view that its object might be within the early attention of the french and british governments. by the communication received through our minister at paris, it appeared that a knowledge of the act by the french government was followed by a declaration that the berlin and milan decrees were revoked, and would cease to have effect on the first day of november ensuing. these being the only known edicts of france within the description of the act, and the revocation of them being such that they ceased at that date to violate our neutral commerce, the fact, as prescribed by law, was announced by a proclamation, bearing date the second day of november. it would have well accorded with the conciliatory views indicated by this proceeding on the part of france, to have extended them to all the grounds of just complaint which now remain unadjusted with the united states. it was particularly anticipated that, as a further evidence of just dispositions towards them, restoration would have been immediately made of the property of our citizens, seized under a misapplication of the principle of reprisals, combined with a misconstruction of the law of the united states. this expectation has not been fulfilled. from the british government, no communication on the subject of the act has been received. to a communication, from our minister at london, of a revocation, by the french government, of its berlin and milan decrees, it was answered, that the british system would be relinquished as soon as the repeal of the french decrees should have actually taken effect, and the commerce of neutral nations have been restored to the condition in which it stood previously to the promulgation of those decrees. this pledge, although it does not necessarily import, does not exclude, the intention of relinquishing, along with the orders in council, the practice of those novel blockades, which have a like effect of interrupting our neutral commerce: and this further justice to the united states is the rather to be looked for, inasmuch as the blockades in question, being not more contrary to the established law of nations than inconsistent with the rules of blockade formerly recognized by great britain herself, could have no alleged basis other than the plea of retaliation, alleged as the basis of the orders in council. under the modification of the original orders of november, , into the orders of april, , there is, indeed, scarcely a nominal distinction between the orders and the blockades. one of those illegitimate blockades, bearing date in may, , having been expressly avowed to be still unrescinded, and to be, in effect, comprehended in the orders in council, was too distinctly brought within the purview of the act of congress not to be comprehended in the explanation of the requisites to a compliance with it. the british government was accordingly apprised by our minister near it, that such was the light in which the subject was to be regarded. on the other important subjects depending between the united states and that government, no progress has been made from which an early and satisfactory result can be relied on. in this new posture of our relations with those powers, the consideration of congress will be properly turned to a removal of doubts which may occur in the exposition, and of difficulties in the execution, of the act above cited. the commerce of the united states with the north of europe, heretofore much vexed by licentious cruisers, particularly under the danish flag, has latterly been visited with fresh and extensive depredations. the measures pursued in behalf of our injured citizens, not having obtained justice for them, a further and more formal interposition with the danish government is contemplated. the principles which have been maintained by that government in relation to neutral commerce, and the friendly professions of his danish majesty towards the united states, are valuable pledges in favor of a successful issue. among the events growing out of the state of the spanish monarchy, our attention was imperiously attracted to the change developing itself in that portion of west florida which, though of right appertaining to the united states, had remained in the possession of spain, awaiting the result of negotiations for its actual delivery to them. the spanish authority was subverted, and a situation produced exposing the country to ulterior events which might essentially affect the rights and welfare of the union. in such a conjuncture i did not delay the interposition required for the occupancy of the territory west of the river perdido, to which the title of the united states extends, and to which the laws provided for the territory of orleans are applicable. with this view, the proclamation, of which a copy is laid before you, was confided to the governor of that territory, to be carried into effect. the legality and necessity of the course pursued, assure me of the favorable light in which it will present itself to the legislature, and of the promptitude with which they will supply whatever provisions may be due to the essential rights and equitable interests of the people thus brought into the bosom of the american family. our amity with the powers of barbary, with the exception of a recent occurrence at tunis, of which an explanation is just received, appears to have been uninterrupted, and to have become more firmly established. whilst it is universally admitted that a well-instructed people alone can be permanently a free people, and while it is evident that the means of diffusing and improving useful knowledge form so small a proportion of the expenditures for national purposes, i cannot presume it to be unseasonable to invite your attention to the advantages of superadding to the means of education, provided by the several states, a seminary of learning, instituted by the national legislature, within the limits of their exclusive jurisdiction, the expense of which might be defrayed or reimbursed out of the vacant grounds which have accrued to the nation within those limits. such an institution, though local in its legal character, would be universal in its beneficial effects. by enlightening the opinions, by expanding the patriotism, and by assimilating the principles, the sentiments, and the manners, of those who might resort to this temple of science, to be redistributed, in due time, through every part of the community, sources of jealousy and prejudice would be diminished, the features of national character would be multiplied, and greater extent given to social harmony. but, above all, a well-constituted seminary, in the centre of the nation, is recommended by the consideration that the additional instruction emanating from it would contribute not less to strengthen the foundations than to adorn the structure of our free and happy system of government. among the commercial abuses still committed under the american flag, and leaving in force my former reference to that subject, it appears that american citizens are instrumental in carrying on a traffic in enslaved africans, equally in violation of the laws of humanity, and in defiance of those of their own country. the same just and benevolent motives which produced the interdiction in force against this criminal conduct, will doubtless be felt by congress in devising further means of suppressing the evil. in the midst of uncertainties necessarily connected with the great interests of the united states, prudence requires a continuance of our defensive and precautionary arrangement. the secretary of war and secretary of the navy will submit the statements and estimates which may aid congress in their ensuing provisions for the land and naval forces. the statements of the latter will include a view of the transfers of appropriations in the naval expenditures, and the grounds on which they were made. the corps of engineers, with the military academy, are entitled to the early attention of congress. the buildings at the seat fixed by law for the present academy are so far in decay, as not to afford the necessary accommodation. but a revision of the law is recommended principally with a view to a more enlarged cultivation and diffusion of the advantages of such institutions, by providing professorships for all the necessary branches of military instruction, and by the establishment of an additional academy at the seat of government or elsewhere. the means by which war, as well for defence as for offence, is now carried on, render these schools of the more scientific operations an indispensable part of every adequate system. even among nations whose large standing armies and frequent wars afford every other opportunity of instruction, these establishments are found to be indispensable for the due attainment of the branches of military science which require a regular course of study and experiment. in a government happily without the other opportunities, seminaries, where the elementary principles of the art of war can be taught without actual war, and without the expense of extensive and standing armies, have the precious advantage of uniting an essential preparation against external danger, with a scrupulous regard to internal safety. in no other way, probably, can a provision of equal efficacy for the public defence be made at so little expense, or more consistently with the public liberty. reserving for future occasions, in the course of the session, whatever other communications may claim your attention, i close the present, by expressing my reliance, under the blessing of divine providence, on the judgment and patriotism which will guide your measures, at a period particularly calling for united councils, and inflexible exertions, for the welfare of our country, and by assuring you of the fidelity and alacrity with which my co-operation will be afforded. james madison. washington, _december , _. friday, december . joseph anderson, from the state of tennessee, attended. tuesday, december . richard brent, from the state of virginia, attended. wednesday, december . the vice president of the united states resumed the chair. jesse franklin, from the state of north carolina, also took his seat in the senate. thursday, december . henry clay, from the state of kentucky, took his seat in the senate. monday, december . james lloyd, from the state of massachusetts, took his seat in the senate. tuesday, december . john condit, from the state of new jersey, and john smith, from the state of new york, severally took their seats in the senate. _bank of the united states._ mr. leib presented the petition of the president and directors of the bank of the united states, praying a renewal of their charter, for reasons therein stated; and the petition was read, and referred to a select committee, to consist of five members, to consider and report thereon; and that the petition be printed for the use of the senate. messrs. crawford, leib, lloyd, pope, and anderson, were appointed the committee. _territory of orleans._ mr. giles, from the committee to whom was referred, on the th instant, so much of the message of the president of the united states as relates to the occupation of that part of west florida which is included within the boundaries described by the treaty for the acquisition of louisiana, reported a bill declaring the laws now in force in the territory of orleans, to extend to and to have full force and effect to the river perdido, pursuant to the treaty concluded at paris on the th day of april, , and for other purposes; and the bill was read, and passed to the second reading. wednesday, december . christopher grant champlin, from the state of rhode island, took his seat in the senate. thursday, december . jenkin whiteside, from the state of tennessee, took his seat in the senate. _occupation of west florida._ the senate resumed the consideration of the bill declaring the laws now in force in the territory of orleans, to extend to, and to have full force and effect, to the river perdido, pursuant to the treaty concluded at paris on the th of april, ; and for other purposes. the question was on the bill's passage to a third reading. mr. pope.--mr. president, i regret that the honorable chairman of the committee who reported this bill is not here to give it that support which his talents, information, and the importance of the subject authorize us to expect. his absence has devolved on me, as a member of the committee, and a representative of that section of the union more immediately interested in the subject before us, to explain to the senate some of the grounds which induced them to make this report. the first important question which the proclamation of the president and this bill presents for consideration is, whether or not the united states have a good title to the territory in question. before i examine the treaty of cession from france to the united states, of , the source of our claim, permit me to inquire what were the limits of louisiana in that quarter to which this subject leads us before the treaty and cession of -' , between france, spain, and great britain? on this subject, however, i believe there is no contrariety of opinion. before this period, louisiana extended east of the river mississippi to the river perdido. france and spain, by the treaty of , established this boundary between florida, now called east florida, and louisiana. the ancient limits of louisiana have been so fully ascertained by the documents laid before congress at different times, and the numerous discussions the subject has undergone, that i should only waste the time of the senate in attempting to throw any new light on it. i shall only refer the senate to one additional evidence that this river was the ancient eastern boundary of this province. mr. smollet, in his continuation of "hume's history of england," states the answer of the british government to the propositions made by france for peace early in the year , from which it appears that france then claimed the river perdido as their eastern limit, nor does this fact appear to have been contested by the british minister. it appears that previous to the war which terminated in , louisiana comprehended nearly the whole country watered by the mississippi and its branches. i find it stated in a pamphlet published in new york, that france, by a secret cession, contemporaneous with the treaty called the family compact of , transferred this country to spain, to induce her to become her ally in the war against great britain; and although i can find no evidence to support this statement, yet the events of that war, previous to that period, renders it at least probable. it will be remembered that the arms of great britain had triumphed over those of france, both by sea and land. france had lost canada, and a great number of ships of war. spain was not then a party in the war, and, to induce her to become so, it seems probable that france, under the pressure of adverse fortune, ceded to her this province. but, as this statement does not correspond with the documents on our tables, nor the views of others who have examined this subject, we are compelled to take it for granted, that the cession of west louisiana, with the island of new orleans, to spain, and of east louisiana, since called west florida, to great britain, were made at the same time, in the year . it is, however, well known that france made the cession to great britain at the instance, and for the benefit of spain, to enable her, with the cession of florida, now called east florida, to obtain a restitution of cuba. the whole of louisiana, not conquered by great britain, may, with propriety, be said to have been given up, or ceded to spain. let us now examine that part of the treaty of cession between the united states and france of , which relates to this question. by that treaty we acquired louisiana as fully, and in the same manner, as it had been acquired by france from spain, in virtue of the treaty of st. ildefonso of the st of october, . by this treaty, spain retroceded louisiana to france, "with the same extent it then had in the hands of spain, and that it had when france possessed it, and such as it should be after the treaties subsequently entered into between spain and other states." that this extract from that treaty is correct, cannot be doubted, as it has never been denied by spain. the word "retrocede" in this treaty has, i believe, occasioned more doubt with regard to the meaning of this cession that any expression contained in it, but cannot, when the subject is properly examined, have the effect contended for. it is said that as france ceded to spain, in , louisiana west of the mississippi, including the island of new orleans, the word "retrocede" must limit the cession to what had been previously ceded by france to spain; but if it be true that louisiana east and west of the mississippi was ceded to spain in the year , although east louisiana was afterwards ceded by france, with the consent of spain, to great britain, the word "retrocede" might, with propriety, be used with reference to the original grant to spain in , or if, what will not be denied, the cession of east louisiana to great britain by france, was at the instance, and for the benefit of spain, spain, in , after she had acquired east louisiana, alias west florida, so called by great britain after , could well say to france, i re-grant to you what you ceded to me, and on my account, or at least, so much as i can re-grant consistently with the treaties i have since made; and this seems to be the plain and evident meaning of the instrument. if the parties had meant to confine the retrocession to the limits of the cession, made by france to spain, of louisiana west of the mississippi, including the island of new orleans, they would have used the same deception. they would certainly have stopped after saying the extent it then had in the hands of spain. but to prevent mistake or misconstruction, they add, "that it had when france possessed it," and, what is still more conclusive of the meaning of the parties, they go on to say, "and such as it should be after the treaties subsequently entered into between spain and other states." as spain had never entered into any treaty with regard to the western boundary of louisiana, and as the only treaties to which the parties could have alluded was that of with great britain, and of with the united states, both relative to limits on the east side of the mississippi, it is perfectly clear that the contracting parties meant to comprehend whatever of louisiana, on the east side of the mississippi, spain had a title to. if the construction i contend for is not admitted, then the latter parts of the description will have no effect, contrary to a settled principle of law and common sense, that every part of an instrument shall have effect, if it can by any reasonable construction. to strengthen the construction for which i insist, it may not be amiss to consider the views of the french government at the time this treaty of st. ildefonso was made. they no doubt acquired this province with an intention of holding it, and it was an object of national pride to regain as much as practicable of the colonies which had been lost under the old government. besides, they could not be ignorant of the importance of east louisiana, now west florida, to the security of new orleans; and, as the practicability of obtaining it at that time from spain cannot be doubted, the presumption is irresistible that the cession was intended to embrace it. i had intended to have ascertained at the department of state the ground of objection with spain to the surrender of that country to the united states, but have not made the inquiry. i do not, however, think it difficult to account for the conduct of spain. my conjecture is, that france, after she had sold louisiana to the united states, and received the price stipulated, secretly advised spain not to surrender it, having at that time formed the project which she is now attempting to execute, of acquiring the whole spanish empire. her interest was, therefore, identified with that of spain, and she was, no doubt, willing to unite with spain in giving the most limited construction to the cession to the united states. i find that congress, by an act passed on the th of february, , have solemnly asserted our right to this territory, and authorized the president to take possession of it and to establish a port of entry, &c., on the mobile, whenever he should deem it expedient. the time when, and circumstances under which, this step should be taken, were submitted to the discretion of the executive. i may be permitted to ask why, if we had no title to this territory, the president was urged to take possession by force, and censured for not doing it? if my recollection is accurate, all parties agreed we ought to have the country--they only differed as to the mode of acquiring it. the president, influenced by that policy which has hitherto guided the present administration, of avoiding making this nation a party in the present european war, in the exercise of the discretionary power vested in him by that act, did not think proper to seize upon it by force, but to wait for the occurrence of events to throw it into our hands without a struggle. the expediency of taking possession of this territory cannot, it appears to me, admit of a doubt. if the president had refused or hesitated to meet the wishes of the people of west florida by extending to them the protection of the american government, and they had sought security in the arms of a foreign power, what should we have heard? he would have been charged with imbecility, and fear of incurring responsibility. he would have been denounced as unworthy of the station his country had assigned him. let it be remembered that the orleans country is our most valuable part--remote from our physical force--a climate more fatal to our people than the sword of a victorious enemy--and that an enemy in possession of west florida can with great facility cut off new orleans from the upper country. if the fortunate moment had not been seized, this province would have fallen into the hands of a foreign power, or, if time had been given for intrigue to mature itself, another burr plot would probably have risen from the ashes of the first, more formidable to the integrity of this empire. burr, like archimedes, fancied that if he had a place to stand upon--a place beyond the jurisdiction of the united states to rally his followers--he could overturn the government. he has, it is true, fled from the frowns of an indignant country; but he was not alone. let an opportunity be afforded, and a thousand burrs would throw off the mask and point their arms against the federal union. on a subject of such interest, it would have been criminal in those appointed to watch over the national safety to have hesitated. i was surprised to hear this procedure pronounced a robbery, and making of war. why should our sympathies be awakened in favor of spain? what claim has the spanish government upon our moderation and forbearance? what has been her conduct? from the moment we became an independent nation she has been intriguing to separate the western country from the atlantic states. she has made, at different periods, and as late as the year , in violation of her treaty of with this country, direct propositions to the western people to secede from the union, and to accomplish her object, at least attempted the use of means the most corrupt. what has been her conduct since we acquired louisiana? if i am correctly informed, our deserters and slaves who have taken refuge in florida, in many instances have not been surrendered, and enormous duties have been imposed on our vessels navigating the mobile. under all these provocations, sufficient to have drawn upon them from almost any other nation an open declaration of war, our government, influenced by that pacific policy which has hitherto regulated its course towards foreign nations, exercised patience and forbearance. and since the late revolution in spain, i believe it will not be pretended that this government has manifested any disposition to throw our weight into the scale of france against the spanish party. our government has taken no step in relation to west florida, until compelled by a regard to our own safety. the executive in the proceeding under consideration has used language the most conciliatory, and on the face of his proclamation given a pledge that this government will at any time enter into amicable negotiations on the subject of our claim to this territory, if it shall be disputed. there are other at least plausible grounds upon which this bill as an original proposition might be supported entirely independent of the cession. spain is indebted to us a large amount for spoliations committed on our commerce; and as there is no government at present towards which the ordinary proceeding can be pursued to obtain payment, could we not, on the principle of the attachment law, as an act of self-justice, seize on this territory to secure satisfaction? as this measure has been emphatically called an act of robbery and war, it may not be amiss to consider the political state of the spanish colonies in relation to the spanish government in the hands of the junta, and the new dynasty about to be established by bonaparte. it may be said, perhaps, that the late alienation of the spanish crown and the revolution in spain have dissolved the tie which connects them with the mother country. on this point i will not detain the senate. if the french arms shall be successful in spain, of which i believe few entertain much doubt, and the junta shall be driven from old spain to any of the colonies, their political character must cease, and they can no longer claim the exercise of any jurisdiction or sovereignty over the colonies. the colonies are not bound together by any political bond unconnected with the mother country; they are subject to the mother country, but the moment she is conquered, they are at liberty to provide for themselves, unless, indeed, the emperor of france or king joseph can claim them. france, in an official exposé, and king joseph, by proclamation, have declared their willingness that the colonies should become independent, provided they did not connect themselves with great britain. if france, therefore, shall, which is probable, conquer the mother country, we are fully authorized by her public declaration to the world to acquire, with the consent of the inhabitants, not only west but east florida, cuba, or any other province which we shall deem it expedient to connect with the united states. this bill may be justified, independent of title, by the law of self-preservation. have we any assurance that the spanish government will maintain their neutrality in this territory if we should be involved in a war with either france or great britain? can they, or will they, prevent the march of an enemy's forces through that territory into the united states? no, sir; we have every reason to expect the contrary. considering how vulnerable we are from this territory, its present state, and the aspect of our foreign affairs, it appears to me we are authorized to take possession of it as a measure of national security. it may be objected that taking the property of others by force tends to relax the morals of the people, by destroying that criterion of right and wrong, the observance of which is so necessary to the purity of our republic; and i am ready to admit that we ought to proceed upon this principle of necessity and expediency with great caution, and never to act upon it but in extreme and evident cases. had we a colony on the coast of england or france, similarly situated, we know they would not hesitate. when we reflect that our property is seized by almost every nation; that the laws and usages of nations are disregarded by nearly all europe; that their conduct has been lately marked with a degree of perfidy and rapacity unexampled in the history of the civilized world; that they have in fact become states of barbary; it appears to me that we ought not, as regards them, to be over nice or squeamish upon questions of this sort. shall we sit here with our arms folded until the enemy is at our gates? if we waste our time in discussion and refining abstract questions of right and wrong, we shall lose our independence, and we shall deserve to lose it. i had hoped this bill would have passed without much debate; i know the people are tired of long speeches and documents. this fondness for lengthy discussions, has even drawn upon congress the reproaches of the ladies; they begin to say--less talk and more action. friday, december . _occupation of west florida._ the senate resumed the consideration of the bill respecting the territory west of the perdido. mr. horsey addressed the senate as follows: mr. president: the bill under consideration contains two important provisions. the first in effect incorporates with the territory of orleans the province of west florida east of the mississippi, as far as the river perdido; the second extends to that part of the province thus incorporated the laws now in force within the said territory. these provisions naturally involve two questions: first, whether the united states have a good title to that part of the province described in the bill; and secondly, whether it would be expedient for the government of the united states to take possession of it by force. before i proceed to consider these questions, i beg leave, mr. president, to advert to what may be considered a preliminary question. i refer to the authority of the president of the united states to issue his proclamation and the accompanying orders of the th of august last, directing the forcible occupation of that territory. i deem it material to consider this point, because, if the proclamation were unauthorized, then congress are not committed by it, nor are they bound to give it their sanction. if the president had any authority to issue this proclamation, that authority must have been derived either under the constitution of the united states or under some act or acts of congress. the president has no power which does not proceed from one or the other of these sources. the constitution has given to congress the exclusive power of making laws and declaring war--to the president the power of executing the laws of the union. the powers of the one are legislative, of the other executive. the question then would be, whether the president in issuing this proclamation has not transcended the limits of his powers. sir, what is the nature and import of this proclamation? in my humble conception both legislation and war. war--because it directs the occupation of this territory by a military force. the regular troops of the united states are ordered to march, and if they should not be found adequate to the object, the governors of the orleans and mississippi territories are directed to call out the militia of their respective territories, to co-operate with the regular forces. but we shall be told, sir, that the president, in issuing this proclamation, has taken the precaution to direct that in case any particular place, however small, should remain in possession of a spanish force, the commanding officer is not to proceed to employ force against it, but to make immediate report thereof to the secretary of state. suppose while your commanding officer is making this report, the spanish force sallies out and makes an attack upon your army, or suppose a spanish army, with governor folch at their head, should march from east florida with the view of repelling the invasion of this territory; what are governor claiborne and his army to do? ground their arms and surrender themselves prisoners of war; or are they, sir, to drop their muskets and take to their heels? these are the only alternatives presented--they must either surrender, run, or fight. and who will doubt which of these alternatives the gallantry of an american army would impel them to choose! sir, a conflict would be inevitable. but while the president has been so affectedly cautious with respect to spanish force, he has overlooked altogether the contingency of resistance on the part of the revolutionists. these patriots it would seem had called a convention and issued a declaration of independence, and now it appears have formed and established a regular government, which is organized and in operation. if these proceedings are not all a sham, the territory in question is now in the possession of a people claiming to be sovereign and independent; and is it supposable that this people can behave so dastardly as to submit, without a struggle, to the incursion of a hostile army, whose avowed object is the conquest of the country and the subversion of its constitution and independence? and here permit me to remark, that the style and tenor of the letter from the secretary of state of the th of november, , to governor holmes, in answer to the letter of the president of the convention praying the recognition and protection of the united states, are not admirably calculated to give a welcome reception to the american army. if then assistance should be offered on the part of the constitutionalists, what is your army to do? the orders contain no proviso in this particular, requiring that the fact should be reported to the department of state; but their clear intent is, that force should be employed. under such circumstances is it not to be expected that this measure of the executive will result in war? is it not to be expected, that either the spaniards or the conventionalists will attempt to repel this palpable infringement upon their rights and territory? but, sir, this proclamation is not only war, but it is an act of legislation too. it annexes the territory in question to the orleans territory; it creates a governor; it enacts laws, and appropriates money. it gives the governor of the orleans territory all the authorities and functions over this particular territory which he possesses by virtue of his office as governor, and makes an appropriation of a sum of money, not exceeding twenty thousand dollars. this proclamation is substantially the bill under discussion, except that it goes much further. the first section of the bill only contains an annexation of the territory in question to the orleans territory--this the proclamation has already done. the second section only extends the laws of that territory to the particular territory in question--and this too the proclamation has already done. the only material difference in fact existing between the proclamation and this bill is, that the proclamation contains the further and important provision for raising the troops and the money necessary for carrying it into execution. and here, sir, i will take the liberty to remark that i do not consider this bill the only one intended on this subject. this is a mere entering wedge--when this is passed, congress are permitted to pass another, providing the necessary military and pecuniary means to carry this act into execution; and, indeed, i should not be surprised, if, before the close of the session, a bill were introduced to take possession of east as well as west florida. if the president had no power under the constitution to issue this proclamation, i think it equally clear he had none under any existing laws of congress. the act of the st of october, , authorizing the president of the united states to take possession of and occupy the territory ceded by france to the united states, by the treaty concluded at paris on the th of april, , i apprehend, expired on the st day of october, ; to which period it was limited by the first section of the act for erecting louisiana into two territories, and providing for the temporary government thereof, passed the th day of march, . this section enacts, that "the act passed the st day of october, entitled 'an act to enable the president of the united states to take possession of the territories ceded by france to the united states, by the treaty concluded at paris, on the th day of april, ; and for the temporary government thereof,' shall continue in force until the st day of october, , any thing therein to the contrary notwithstanding; on which said st day of october, this act shall commence, and have full force, and shall continue in force for and during the term of one year, and to the end of the next session of congress, which may happen thereafter." let it be recollected that at the time this last-mentioned act passed, the president had fulfilled his powers, under the act of the st of october, , so far as it respected the taking possession of louisiana. possession had been actually and formally delivered, and the stock created and transferred to the french government, according to the stipulations of the treaty. besides, the very nature and design of the act of the th march, independent of the express limitation, superseded the act of the st of october. but it is said, there are acts of congress which, though contemplating a present possession in a foreign authority, also contemplate an ultimate possession by the united states, under which the proclamation may be justified, even though the act of the st of october should have expired. the acts here referred to, i understand to be the act of the th of february, , for laying and collecting duties within the territories ceded by france to the united states, the act above mentioned of the th of march, erecting louisiana into two territories, and the act of the d of march, , authorizing the establishment of a government in the territory of orleans, similar to the government of the mississippi territory. the president himself admits, in his message at the opening of the session, that those laws contemplate a _present possession in a foreign power_; but he further says, they contemplate an eventual possession by the united states. but, sir, let me ask what sort of possession? a possession _by force_? no, sir, not a single provision can be shown to justify such a construction. but a possession to be obtained _by a friendly negotiation_. i am warranted in this construction, not merely by the letter of those laws, by the lapse of time since their enactment, by the express official declaration of mr. madison himself, while secretary of state. it is a notorious fact, that when the act of the th of february passed, the marquis d'yrujo, then the minister of his catholic majesty in the united states, in a solemn form protested against that law; and that mr. madison, by a letter dated on the th of march, assured the marquis that the provisions relating to louisiana "would not be extended beyond the _acknowledged limits_ of the united states, until it shall be rendered expedient by _friendly elucidation and adjustments_ with his catholic majesty." upon the whole, sir, i have not been able to discover the shadow of authority, on the ground of which the president issued this proclamation. he has recited none, amidst all his recitals, and none appears to me but his own mere will and pleasure. the act i therefore cannot view in any other light than an unwarrantable assumption of power and a violation of the constitution. considering then, sir, this act of the executive as illegal and unauthorized, we are fully at liberty to enter into the discussion of the great questions of title and expediency; a task which i will proceed to discharge to the best of my ability. the first i propose to examine is, the title of the united states to the territory in question. with respect to this, i perceive, it unfortunately happens that honorable gentlemen who support the bill do not precisely accord in sentiment. the gentleman from vermont (mr. bradley) has frankly conceded that the united states acquired no title under the treaty of st. ildefonso. another gentleman (mr. smith, of maryland) has declared that the united states did derive a title under that treaty, and disclaims the title set up by the honorable gentleman from vermont. i shall not undertake to decide which of the two gentlemen is right, if either be, but shall contend, and humbly expect to prove, that both are wrong. what is the nature of the title set up by the gentleman from vermont? not under the treaty, he has candidly owned, but he supposes a title to exist on the ground of certain quaint principles of the common law, relative to the doctrines of estoppel and occupancy. i am extremely happy, sir, to find that honorable gentleman introducing the common law as authority upon this floor, especially on so great an occasion. his doctrines certainly evince both research and ingenuity, and show that he, like many with whom he acts, has not absolutely lost his veneration for the black letter. what are his doctrines? why in the first place, he says, admitting that spain did not cede florida to france by the treaty of st. ildefonso, and admitting that france had no title to florida on the th of april, , when she ceded louisiana to the united states, yet, as france has since acquired a title to the crown of spain and her colonies, and as the french plenipotentiary, when the treaty of th of april, , was executed, did state and induce the american ministers to understand and believe that florida was comprehended in the cession, why the title, though france had it not when the treaty was signed, yet having it subsequently, immediately attached in the united states, and france is estopped from saying any thing to the contrary. this argument, sir, begs every thing: st. that the declarations on the part of the french minister were made; dly, that being made they would operate to pass the title contrary to the express letter of the treaty; and lastly, that france has acquired a good title to the crown of spain and her colonies. i will yield to the gentleman his first proposition, and grant, as he seems to desire it, that these representations were made--and what do they prove? not that the title passed, but that the french minister was too deep for the american plenipotentiaries, and, to use a jockey phrase, took them in. sir, the only legal effect of such a fraud would be, to violate the treaty--to annul the contract. france, to be sure, would be bound upon principles of equity to refund the purchase money. if then, sir, i am correct in stating, that no conversations or verbal declarations, however fraudulent, would operate to control or vary the plain letter and intent of the treaty, as appearing on the face of it, then upon the gentleman's own acknowledgments no title to florida could have passed to the united states under the treaty of . for the gentleman has unequivocally admitted that florida was not ceded by spain to france by the treaty of st. ildefonso, and france, it is admitted on all sides, by the treaty of , only ceded to the united states louisiana, as fully, and in the same manner she acquired it from spain by the treaty of st. ildefonso; nor, sir, can i admit that france has acquired a legitimate title to the crown and colonies of spain, which must also appear before the gentleman can avail himself of his argument. what, mr. president, is the nature of this title? was it obtained _bona fide_ for a fair and full consideration? no, sir, but by the most abominable perfidy, corruption and duress, of which the pages of history furnish an example. was not the royal family decoyed by artifice from madrid to bayonne? was not the old monarch compelled to resign his crown to ferdinand the seventh, and was not that prince a prisoner of bonaparte; and, while in this condition, and, for aught we know, the bayonet at his breast, or the cup to his lips, constrained to resign his crown to the emperor of france? sir, what sort of title is this? upon the eternal principles of justice, upon the principles of the common law and common sense, an instrument thus obtained is not obligatory on the party executing it. but have the people of spain acquiesced? no, sir; the instant publicity was given to the transaction they became indignant, and with one voice rose, resolved to resist this usurpation. to this hour they have not submitted. but the gentleman has said that spain is no longer able to hold florida; that foreign emissaries will take it if the united states do not, and that it may be lawfully taken by the united states on the ground of the law of occupancy. that title may be acquired by occupancy is not to be doubted. it is the mode by which title to property was originally acquired; but to obtain a title in this way the country must be vacant, uninhabited and not claimed by another proprietor. but in this instance is the territory vacant--or uninhabited--or abandoned by its proprietors? no, sir. the territory is either in the possession of spain and claimed by her, or of the revolutionists, and if either be in possession, by the law of occupancy, you have no right to disturb them. clearly then, sir, upon the principles and admissions of the honorable gentleman from vermont, the united states have no title to florida. and now, sir, with the indulgence of the senate, i will proceed to consider as briefly as possible the nature of this title as derived under the treaty of st. ildefonso. here, it will be granted, i meet the question fairly. this, i presume, is the title relied upon, as well by the executive as the majority of the supporters of this bill. in order fully to understand this subject, it is necessary to inquire into the principal cause of the war of . the eastern boundary of louisiana, i believe, was the chief cause of that war. the french were in the possession of the mississippi, and claimed as part of louisiana not only the country to the west of that river, but east as far as the alleghany mountains. france, having this claim, and being in possession of canada, conceived the project of uniting louisiana with canada. to accomplish her purpose she established a line of posts from the lakes to the ohio, and commenced encroachments upon the then british colonies. these encroachments she was pressing so far that great britain perceived it would be necessary to repel them. this brought on the war of ' , which, after a bloody conflict of seven years, terminated disastrously to france and her allies, and resulted in the establishment of the mississippi, the iberville, and the lakes maurepas and pontchartrain, as the boundary of louisiana, giving to great britain all the territory on the east of that boundary, except the island and town of new orleans, and to france all upon the west, including the island and town of new orleans. a more particular examination of the results of this war is important. by it france lost canada and most of her west india islands. spain, the ally of france, lost cuba. by the preliminary articles of peace between great britain, france, and spain, signed at fontainebleau, and dated the d november, , france renounced all pretensions to nova scotia, and ceded and guarantied to his britannic majesty, in full right, canada with all its dependencies. the th article stipulates, "in order to re-establish peace on the most solid and lasting foundations and to remove every subject of dispute with regard to the limits of the british and french territories on the continent of north america, it is agreed that for the future the confines between the dominions of his britannic majesty and those of his most christian majesty, (french king,) in that part of the world, shall be irrevocably fixed by a line drawn along the middle of the river mississippi from its source, as far as the river iberville, and from thence by a line drawn along the middle of this river, and of the lakes maurepas and pontchartrain to the sea; and to this purpose, the most christian king cedes in full right, and guaranties to his britannic majesty, the river and port of mobile, (now west florida,) and every thing that he possesses, or ought to have possessed on the left (east) side of the river mississippi, except the town of new orleans, and the island on which it is situated, which shall remain to france." by the th article, great britain restores to spain all that she had conquered in the island of cuba, with the fortress of havana. in consequence of which his catholic majesty (king of spain) by the th article "cedes and guaranties in full right, to his britannic majesty, all that spain possesses on the continent of north america, to the east or the south-east of the mississippi, including florida, with fort st. augustine and the bay of pensacola." (now consisting of east and a part of west florida.) by the definitive treaty of peace and friendship between the kings of great britain, france, and spain, concluded at paris on the th day of february, , the preliminary articles were adopted, ratified, and confirmed. by another treaty bearing date the d day of november, , the same day and year the preliminary articles are dated, as appears by the letter to m. l'abbadie, which i will presently refer to, france cedes louisiana to spain, together with the town and island of new orleans. this last-mentioned treaty has never been published, but the letter of the king of france to m. l'abbadie recites the purport as well as date of it. this letter purports to be an order signed by the king of france, dated at versailles, the st april, , and directed to m. l'abbadie, director-general, and commandant for his majesty in louisiana. this letter was published at new orleans in october, , and circulated amongst the french inhabitants there. it recites: "by a special act, done at fontainebleau, november , , of my own will and mere motion, having ceded to my very dear and best beloved cousin the king of spain, and to his successors, in full property, purely and simply, and without any exceptions, the whole country known by the name of louisiana, together with new orleans, and the island in which the said city is situated; and by another act done at the escurial, november , in the same year, his catholic majesty having accepted the cession of the said country of louisiana, and the city and island of new orleans, agreeably to the copies of the said acts, which you will find hereunto annexed; i write you this letter to inform you, that my intention is, that on the receipt of these presents, whether they come to your hands by the officers of his catholic majesty or directly by such french vessels as may be charged with the same, you are to deliver up to the governor, or officer appointed for that purpose by the king of spain, the said country and colony of louisiana, and the posts thereon depending, likewise the city and island of new orleans, in such state and condition as they shall be found to be in on the day of the said cession, willing that in all time to come they shall belong to his catholic majesty, to be governed and administered by his governors and officers, and as possessed by him in full property, without any exceptions." from this document, and the treaties referred to, it appears that in the month of october, , when the whole of louisiana, with the island and town of new orleans, was delivered to spain, that great britain was in the peaceable possession of all the country on the east of the mississippi. that with respect to florida particularly, great britain was in possession, and nobody dreamed at that time, that florida either east or west, was any part of louisiana. had it been so considered under the orders of the french king, to deliver the _whole_ of the province to spain, undoubtedly florida would have been delivered. immediately after the cession of ' - , great britain took possession of all the country on the east of the mississippi, except only the town and island of new orleans, and, in the year or ' , erected old florida, pensacola, the river and port of mobile, &c., into two distinct provinces, under the name of east and west florida, names which they have borne ever since. in , at the close of our revolutionary war, great britain ceded to spain east and west florida, which, from that period to the present time, have been held by spain under these names, as separate provinces from louisiana. in the year , when spain was in possession of east and west florida and louisiana, as three several and distinct provinces, the famous treaty of st. ildefonso was concluded, whereby spain "retrocedes to france the colony or province of louisiana, with the same extent that it now has in the hands of spain, and that it had when france possessed it; and such as it should be after the treaties subsequently entered into between spain and other states." this treaty likewise has not been published, but the part just referred to is cited in the treaty between the united states and france of the th of april, , whereby france cedes to the united states louisiana, as fully and in the same manner as she acquired it of spain by the treaty of st. ildefonso. spain delivered possession in pursuance of the treaty of st. ildefonso to france, and france, in pursuance of the treaty of , delivered possession to the united states, both powers receiving the country on the west of the mississippi, with the island and city of new orleans, like spain originally received it from france, as the whole of louisiana. i have now, i believe, sir, given a full and i trust fair and correct statement of the evidences and facts relative to the question of title. a few remarks will close what i have to say on this head. the letter from the king of france to m. l'abbadie, is a very important document. it shows that the king of france, under whom we claim, and by whose admissions we are bound, so long ago as , treated and considered the country on the west of the mississippi as the whole of louisiana. that, so considering it, he ceded and delivered it to spain, together with the island and town of new orleans, from which latter words it may be inferred that even the island and town of new orleans were then not considered a part of louisiana. in , when spain ceded back the colony of louisiana to france, that country was only known on the west of the mississippi. the war ' , and the treaties of ' - , had fixed the line and obliterated forever the name of louisiana on the east of that river. the treaty of st. ildefonso, of , is a mere treaty of _retrocession_. the translation purports to be a treaty of cession, it is true, but acknowledged on all sides to be erroneous. the original treaty was in the french language, and it is by that we are to be governed. the expression in the original is "sa majesté catholique promit et s'engage, de son cote, _à retroceder_ à la republique française," &c. _a retroceder_ signifying to retrocede, to restore, or to use a term familiar in the state i have the honor to represent, _reconvey_ the colony of louisiana to france, as it was when france conveyed it to spain. the honorable gentleman from kentucky, (mr. pope,) pressed by this argument, could only get round it by alleging that the original treaty between france and spain was dated in , prior to the settlement of the line and the cessions to great britain. but, unfortunately, he could not produce one title of authentic evidence to establish his position, a position absolutely negatived by the official letter to m. l'abbadie. but that gentleman has further told us, that from the words "with the same extent it now has in the hands of spain, and that it had when france possessed it, and such as it should be after the treaties subsequently entered into between other states," an intention may be raised to include florida. i fully subscribe to the gentleman's rule, that we must give such a construction to the treaty, and particularly to the passage just referred to, as will give effect, if possible, to all the parts; and this i apprehend may be done without having recourse to the forced construction contended for. in the first place, the two first members of the passage may be reconciled and have effect by considering them as a twofold description of the same territory. from abundant caution it is not uncommon to give various descriptions of the same object. sometimes the name is simply used, sometimes it is described by metes and bounds, and sometimes by the names of the adjacent countries. sometime a twofold, and sometimes a threefold description is given. and upon a critical examination, i think it will be found that this is the only true construction the instrument will bear. if you give it the construction the gentleman contends for, to wit: that the second member of the passage is an extension of the description given by the first, then the second includes the first, and of consequence the first would be nugatory and superfluous; which would be doing violence to the gentleman's own rule of construction. but if the gentleman will insist on giving to the second member an enlarged or extended sense, it may be done by applying it to the western boundaries of louisiana. it is said that when france ceded louisiana to spain, in ' , the country extended on the west to the river sabine, and that spain, prior to the treaty of , detached from louisiana the territory south of the waters emptying into the red river, and erected it into a new province under the name of the "province of texas." sir, the operations on the sabine are memorable. it is well known how mysteriously they were suspended by an arrangement in , by which it was agreed that the spaniards should not cross the sabine, and that the americans should not extend their settlements as far as that river. and for this purpose, to prevent collisions, until the difference should be settled, instructions were given that no surveys should be made west of a meridian passing by nachitoches. if the gentleman is not satisfied by travelling to the west, by going to the east he may find an application--the town and island of new orleans, which, though named in the cession to spain, are not named in the treaty of retrocession to france. as to the third member of the passage, it is a formal provision introduced into most treaties, and would be understood if not expressed. of course the cession would be subject to prior treaties with other states. in , spain concluded a treaty with the united states, whereby she agrees that the navigation of the mississippi, in its whole breadth from its source to the ocean, shall be free to the citizens of the united states, and that they shall have the right to deposite their merchandise and effects in the port of new orleans, free of duty for three years, and after that period, if the privilege is not extended at the port of new orleans, she is to assign to the united states, on another part of the banks of the mississippi, an equivalent establishment. to these provisions the clause in question i apprehend refers. the holding or possession of louisiana is correspondent with the construction i have given the treaty. when possession was originally delivered by france to spain, florida was not delivered or considered any part of the cession. when louisiana, under the treaty of st. ildefonso was restored to france, florida was not delivered. when louisiana, under the treaty of , was delivered to the united states, florida was not comprehended. indeed the government of the united states then treated the country on the west of the mississippi, including the town and island of new orleans, as the whole of louisiana, by receiving it and paying the purchase money, which by the terms of the treaty they were not bound to do, and which by the act of congress creating the louisiana stock they were not authorized to do, till after full and entire possession had been delivered. mr. president, is it conceivable that after the boundary in question had been established by the most solemn compact of nations, and consecrated by a long and bloody war, and, too, by a lapse of near forty years--is it conceivable that the territory in question, excluded by that boundary, and raised into a distinct province under a distinct name--a name it ever bore after the establishment of the boundary--is it, i say, sir, conceivable, if the parties meant to have included this province in the treaty of st. ildefonso, that it should not have been specifically named? mr. clay.--mr. president, it would have gratified me if some other gentleman had undertaken to reply to the ingenious argument which you have just heard. but not perceiving any one disposed to do so, a sense of duty obliges me, though very unwell, to claim your indulgence while i offer my sentiments on this subject, so interesting to the union at large, but particularly to the western section of it. allow me, sir, to express my admiration at the more than aristidean justice, which, in a question of territorial title between the united states and a foreign nation, induces certain gentlemen to espouse the pretensions of the foreign nation. doubtless, in any future negotiations, she will have too much magnanimity to avail herself of these spontaneous concessions in her favor, made on the floor of the senate of the united states. it was to have been expected, that in a question like the present, gentlemen, even on the same side, would have different views, and although arriving at a common conclusion, would do so by various arguments. and hence the honorable gentleman from vermont entertains doubts with regard to our title against spain, while he feels entirely satisfied of it against france. believing, as i do, that our title against both powers is indisputable, under the treaty of st. ildefonso between spain and france, and, the treaty between the french republic and the united states, i shall not inquire into the treachery by which the king of spain is alleged to have lost his crown; nor shall i stop to discuss the question involved in the overthrow of the spanish monarchy, and how far the power of spain ought to be considered as merged in that of france. i shall leave the honorable gentleman from delaware to mourn over the fortunes of the fallen charles. i have no commiseration for princes. my sympathies are reserved for the great mass of mankind, and i own that the people of spain have them most sincerely. i will adopt the course suggested by the nature of the subject, and pursued by other gentlemen, of examining into our title to the country lying between the mississippi and the rio perdido (which, to avoid circumlocution, i will call west florida, although it is not the whole of it)--and the propriety of the recent measures taken for the occupation of it. our title depends, first, upon the limits of the province or colony of louisiana, and secondly, upon a just exposition of the treaties before mentioned. on this occasion it is only necessary to fix the eastern boundary. in order to ascertain this, it is proper to take a cursory view of the settlement of the country; the basis of european title to colonies in america being prior discovery or prior occupancy. in , la salle migrated from canada, then owned by france, descended the mississippi and named the country which it waters, louisiana. about , d'iberville discovered by sea the mouth of the mississippi, established a colony at the isle dauphine or massacre, which lies at the mouth of the bay of mobile, and one at the mouth of the river mobile, and was appointed, by france, governor of the country. in the year , the famous west india company sent inhabitants to the isle dauphine, and found some of those who had been settled there under the auspices of d'iberville. about the same period biloxi, near the pascagoula, was settled. in , the city of new orleans was laid off, and the seat of the government of louisiana was established there. in , the french erected a fort on tombigbee. these facts prove that france had the actual possession of the country as far east as the mobile at least. but the great instrument which ascertains, beyond all doubt, that the country in question is comprehended within the limits of louisiana, is one of the most authentic and solemn character which the archives of the nation can furnish. i mean the patent granted in , by louis xiv. to crozat. [here mr. c. read such parts of the patent as were applicable to the subject.] according to this document, in describing the province or colony of louisiana, it is declared to be bounded by carolina on the east and old and new mexico on the west. under this high record evidence, it might be insisted that we have a fair claim to east as well as west florida, against france at least, unless she has by some convention or other obligatory act, restricted the eastern limit of the province. it has, indeed, been asserted that by the treaty between france and spain, concluded in the year , the perdido was expressly stipulated to be the boundary between their respective provinces of florida on the east and louisiana on the west; but as i have been unable to find any such treaty, i am induced to doubt its existence. about the same period, to wit, towards the seventeenth century, when france settled the isle dauphine and the mobile, spain erected a fort at pensacola. but spain never pushed her actual settlements or conquests further west than the bay of pensacola, whilst those of the french were bounded on the east by the mobile. between those two points, a space of about thirteen or fourteen leagues, neither nation had the exclusive possession. the rio perdido, forming the bay of the same name, discharges itself into the gulf of mexico between the mobile and pensacola, and, being a natural and the most notorious object between them, presented itself as a suitable boundary between the possessions of the two nations. it accordingly appears very early to have been adopted as the boundary, by tacit if not express consent. the ancient charts and historians, therefore, of the country so represent it. dupratz, one of the most accurate historians in point of fact and detail of the time, whose work was published as early as , describes the coast as being bounded on the east by the rio perdido. in truth, sir, no european nation whatever, except france, ever occupied any portion of west florida, prior to her cession of it to england in . the gentlemen on the other side do not indeed strongly controvert, if they do not expressly admit, that louisiana, as held by france anterior to her cession of it in , reached to the perdido. the only observation made by the gentleman from delaware to the contrary, to wit, that the island of new orleans being particularly mentioned could not for that reason constitute a part of louisiana, is susceptible of a very satisfactory answer. that island was excepted out of the grant to england, and was the only part of the province east of the river that was so excepted. it formed in itself one of the most prominent and important objects of the cession to spain originally, and was transferred to her with the portion of the province west of the mississippi. it might with equal propriety be urged that st. augustine is not in east florida, because st. augustine is expressly mentioned by spain in her cession of that province to england. from this view of the subject i think it results that the province of louisiana comprised west florida, previous to the year . what is done with it at this epoch? by a secret convention of the d of november of that year, france ceded the country lying west of the mississippi, and the island of new orleans to spain; and by a contemporaneous act, the articles preliminary to the definitive treaty of , she transferred west florida to england. thus at the same instant of time she alienated the whole province. posterior to this grant, great britain, having also acquired from spain her possessions east of the mississippi, erected the country into two provinces, east and west florida. in this state of things it continued until the peace of , when great britain, in consequence of the events of the war, surrendered the country to spain, who for the _first_ time came into the actual possession of west florida. well, sir, how does she dispose of it? she re-annexes it to the residue of louisiana; extends the jurisdiction of that government to it, and subjects the governors or commandants of the districts of baton rouge, feliciana, mobile, and pensacola, to the authority of the governor of louisiana, residing at new orleans; whereas the governor of east florida is placed wholly without his control, and is made amenable directly to the governor of the havana. and i have been credibly informed that all the concessions or grants of land, made in west florida, under the authority of spain, run in the name of the _government of louisiana_, you cannot have forgotten that about the period when we took possession of new orleans, under the treaty of cession from france, the whole country rung with the nefarious speculations which were alleged to be practising in that city, with the connivance, if not actual participation of the spanish authorities, by the procurement of surreptitious grants of land, particularly in the district of feliciana. west florida, then, not only as france has held it, but as it was in the hands of spain, made a part of the province of louisiana, as much so as the jurisdiction or district of baton rouge constituted a part of west florida. what, then, is the true construction of the treaties of st. ildefonso and of april, , from whence our title is derived? if an ambiguity exist in a grant, the interpretation most favorable to the grantee is to be preferred. it was the duty of the grantor to have expressed himself in plain and intelligible terms. this is the doctrine not of coke only, (whose dicta i admit have nothing to do with the question,) but of the code of universal law. the doctrine is entitled to augmented force when a clause only of the instrument is exhibited, in which clause the ambiguity lurks, and the residue of the instrument is kept back by the grantor. the entire convention of , by which france transferred louisiana to spain, is concealed, and the whole of the treaty of st. ildefonso, except a solitary clause. we are thus deprived of the aid which a full view of both of those instruments would afford. but we have no occasion to resort to any rules of construction, however reasonable in themselves, to establish our title. a competent knowledge of the facts, connected with the case, and a candid appeal to the treaties, are alone sufficient to manifest our right. the negotiators of the treaty of having signed with the same ceremony two copies, one in the english and the other in the french language, it has been contended, that in the english version the term "cede" has been erroneously used instead of "retrocede," which is the expression in the french copy. and it is argued that we are bound by the phraseology of the french copy, because it is declared that the treaty was agreed to in that language. it would not be very unfair to inquire if this is not like the common case, in private life, where individuals enter into a contract, of which each party retains a copy, duly executed. in such case neither has the preference. we might as well say to france we will cling by the english copy, as she could insist upon an adherence to the french copy; and if she urged ignorance on the part of mr. marbois, her negotiator, of our language, we might, with equal propriety, plead ignorance on the part of our negotiators of her language. as this, however, is a disputable point, i do not avail myself of it; gentlemen shall have the full benefit of the expressions in the french copy. according to this, then, in reciting the treaty of st. ildefonso, it is declared by spain in , that she retrocedes to france the colony or province of louisiana, with the same extent that it then had in the hands of spain, and that it had when france possessed it, and such as it should be after the treaties subsequently entered into between spain and other states. this latter member of the description has been sufficiently explained by my colleague. it is said that since france in ceded to spain only louisiana west of the mississippi, and the island of new orleans, the retrocession comprehended no more--that the retrocession _ex vi termini_ was commensurate with and limited by the direct cession from france to spain. if this were true, then the description, such as spain held it, that is in , comprising west florida, and such as france possessed it, that is in , prior to the several cessions, comprising also west florida, would be totally inoperative. but the definition of the term retrocession, contended for by the other side, is denied. it does not exclude the instrumentality of a third party. it means restoration or reconveyance of the thing originally ceded, and so the gentleman from delaware acknowledged. i admit that the thing restored must have come to the restoring party from the party to whom it is retroceded, whether directly or indirectly is wholly immaterial. in its passage it may have come through a dozen hands. the retroceding party must claim _under_ and in virtue of the right originally possessed by the party to whom the retrocession takes place. allow me to put a case: you own an estate called louisiana. you convey one moiety of it to the gentleman from delaware, and the other to me; he conveys his moiety to me, and i thus become entitled to the whole. by a suitable instrument i reconvey or retrocede the estate called louisiana to you as i now hold it, and as you held it; what passes to you? the whole estate or my moiety only? let me indulge another supposition: that the gentleman from delaware, after he received from you his moiety, had bestowed a new denomination upon it, and called it west florida, would that circumstance vary the operation of my act of retrocession to you? the case supposed is in truth the real one between the united states and spain. france in transfers louisiana west of the mississippi to spain, and at the same time conveys the eastern portion of it, exclusive of new orleans, to great britain. twenty one years after, that is in , great britain cedes her part to spain, who thus becomes possessed of the entire province; one portion by direct cession from france, and the residue by indirect cession. spain then held the whole of louisiana _under_ france, and in virtue of the title of france. the whole moved or passed from france to her. when, therefore, in this state of things, she says, in the treaty of st. ildefonso, that she retrocedes the province to france, can a doubt exist that she parts with, and gives back to france, the entire colony? to preclude the possibility of such a doubt, she adds, that she restores it, not in a mutilated condition, but in that precise condition in which france had, and she herself possessed it. having thus shown, as i conceive, a clear right in the united states to west florida, i proceed to inquire if the proclamation of the president directing the occupation of property, which is thus fairly acquired by solemn treaty, be an unauthorized measure of war and of legislation, as has been contended. the act of october, , contains two sections, by one of which the president is authorized to occupy the territories ceded to us by france in the april preceding. the other empowers the president to establish a provisional government there. the first section is unlimited in its duration; the other is restricted to the expiration of the then session of congress. the act, therefore, of march, , declaring that the previous act of october should continue in force until the first of october, , is applicable to the second and not the first section, and was intended to continue the provisional government of the president. by the act of the th of february, , for laying duties on goods imported into the ceded territories, the president is empowered, _whenever he deems it expedient_, to erect the bay and river mobile, &c., into a separate district, and to establish therein a port of entry and delivery. by this same act the orleans territory is laid off, and its boundaries are so defined as to comprehend west florida. by other acts the president is authorized to remove by force, under certain circumstances, persons settling or taking possession of lands ceded to the united states. these laws furnish a legislative construction of the treaty, correspondent with that given by the executive, and they vest in this branch of the government indisputably a power to take possession of the country, whenever it might be proper in his discretion. the president has not, therefore, violated the constitution, and usurped the war-making power, but he would have violated that provision which requires him to see that the laws are faithfully executed, if he had longer forborne to act. it is urged that he has assumed powers belonging to congress in undertaking to annex the portion of west florida between the mississippi and the perdido to the orleans territory. but congress, as has been shown, has already made this annexation the limits of the orleans territory, as prescribed by congress, comprehending the country in question. the president, by his proclamation, has not made law, but has merely declared to the people of west florida what the law is. this is the office of a proclamation, and it was highly proper that the people of that territory should be thus notified. by the act of occupying the country, the government _de facto_, whether of spain, or the revolutionists, ceased to exist; and the laws of the orleans territory, applicable to the country, by operation and force of law, attached to it. but this was a state of things which the people might not know, and every dictate of justice and humanity required, therefore, should be proclaimed. i consider the bill before us merely in the light of a declaratory law. never could a more propitious moment present itself for the exercise of the discretionary power placed in the president of the united states, and, had he failed to embrace it, he would have been criminally inattentive to the dearest interests of this country. it cannot be too often repeated, that if cuba on the one hand, and florida on the other, are in the possession of a foreign maritime power, the immense country belonging to the united states, watered by streams discharging themselves into the gulf of mexico--that is, one-third, nay more than two-thirds of the united states, comprehending louisiana, is placed at the mercy of that power. the possession of florida is a guarantee absolutely necessary to the enjoyment of the navigation of those streams. the gentleman from delaware anticipates the most direful consequences from the occupation of the country. he supposes a sally from a spanish garrison upon the american forces, and asks what is to be done? we attempt a peaceful possession of the country, to which we are fairly entitled. if the wrongful occupants under the authority of spain assail our troops, i trust they will retrieve the lost honor of the nation in the case of the chesapeake. suppose an attack upon any portion of the american army within the acknowledged limits of the united states by a spanish force? in such event there would exist but a single honorable and manly course. the gentleman conceives it ungenerous that we should at this moment, when spain is encompassed and pressed on all sides by the immense power of her enemy, occupy west florida. shall we sit by, passive spectators, and witness the interesting transactions in that country--transactions which tend to jeopardize, in the most imminent degree, our rights, without interference? are you prepared to see a foreign power seize what belongs to us? i have heard in the most credible manner that, about the period when the president took his measures in relation to that country, the agents of a foreign power were intriguing with the people there to induce them to come under his dominion. whether this be the fact or not, it cannot be doubted, that if you neglect the present auspicious moment--if you reject the proffered boon, some other nation, profiting by your errors, will seize the occasion to get a fatal footing in your southern frontier. i have no hesitation in saying, that if a parent country will not or cannot maintain its authority in a colony adjacent to us, and there exists in it a state of misrule and disorder, menacing our peace, and if moreover such colony, by passing into the hands of any other power, would become dangerous to the integrity of the union, and manifestly tend to the subversion of our laws; we have a right, upon eternal principles of self-preservation, to lay hold of it. this principle alone, independent of any title, would warrant our occupation of west florida. but it is not necessary to resort to it, our title being in my judgment incontestably good. monday, december . john taylor, appointed a senator by the legislature of the state of south carolina, in place of thomas sumter, resigned, produced his credentials which were read; and the oath prescribed by law having been administered to him, he took his seat in the senate. wednesday, january , . andrew gregg, from the state of pennsylvania, took his seat in the senate. monday, january . james a. bayard, from the state of delaware, took his seat in the senate. tuesday, january . thomas worthington, appointed a senator by the legislature of the state of ohio, in place of return jonathan meigs, resigned, produced his credentials, which were read; and the oath prescribed by law having been administered to him, he took his seat in the senate. monday, january . james turner, from the state of north carolina, took his seat in the senate. tuesday, january . _mississippi territory._ mr. anderson presented the memorial of the legislative council and house of representatives of the mississippi territory, praying that the said territory may be admitted as a state into the union, upon the footing of the original states, and the memorial was read, and referred to a select committee to consider and report thereon by bill or otherwise; and messrs. anderson, bayard, and dana, were appointed the committee. the memorial is as follows: _to the honorable the senate and house of representatives of the united states in congress assembled_: the memorial unanimously adopted, of the legislative council and house of representatives of mississippi territory, in general assembly convened, respectfully states, that by the articles of agreement and cession between the united states and the state of georgia, an act for the amicable settlement of limits with the state of georgia, &c., and an act supplemental thereto, the government of the mississippi territory was organized and established, and "all and singular the rights, privileges, and advantages, granted to the people of the united states, northwest of the river ohio, by an ordinance of the th day of july, one thousand seven hundred and eighty-seven, were extended to the people of the mississippi territory:" and by the said articles of agreement and cession, it is provided "that the territory thus ceded shall form a state, and be admitted as such into the union as soon as it shall contain sixty thousand free inhabitants, or at an earlier period, if congress shall think it expedient." your memorialists state, that although they do not pretend to have the number required by the said articles of agreement and cession, and the ordinance to entitle our territory as a matter of right into the union, upon the footing of one of the original states; yet, we hope that our numbers (as will appear by the census now taken under a law of the united states) are sufficiently respectable to induce your honorable body to admit the mississippi territory into the union, as a matter of expediency. your memorialists conceive it unnecessary to detail the many reasons which might be adduced in support of their petition, but think it sufficient to say, that, as the people of this territory are able to bear the expenses of a state government with convenience to themselves, and at the same time will relieve the government of the united states from the cares and expenses incident to the territorial form of government; and that whatever views the form of government (under which they have, perhaps, not very patiently lived) for about twelve years, was formed, it is found from experience, to be unfriendly to republicanism; and is such a one as every american in heart is solicitous to be relieved from. we, therefore, pray your honorable body to pass a law authorizing a convention to be called, for the purpose of forming a constitution and state government in the mississippi territory, to be admitted into the union upon the footing of the original states. your memorialists, from a knowledge of your indulgence to the people of the territories northwest of the river ohio, when in a situation similar to their own, are sanguine in their expectations, that your honorable body will grant to them the prayer of their petition. and they will ever pray, &c. f. l. claiborne, _speaker of the house._ alex. montgomery, _president of legislative council._ attest: wm. c. winston, _clerk house of reps. m. t._ wednesday, january . _territory of orleans._ the senate took into consideration the amendment proposed yesterday, by mr. dana, to the bill, entitled "an act to enable the people of the territory of new orleans to form a constitution and state government, and for the admission of such state into the union on an equal footing with the original states, and for other purposes:" and, on motion, by mr. clay, it was agreed to divide the question; and, on the question to agree to the first division of the amendment, to wit: _provided_, that this act shall not be understood to admit such state into the union, as aforesaid, unless each of the states shall consent to the same: it was determined in the negative--yeas , nays , as follows: yeas.--messrs. bradley, champlin, dana, german, gilman, goodrich, horsey, lloyd, pickering, and reed. nays.--messrs. campbell, clay, condit, franklin, gaillard, gregg, lambert, leib, mathewson, pope, robinson, smith of maryland, smith of new york, tait, taylor, turner, whiteside, and worthington. on the question to agree to the second division of the amendment, to wit: _provided_, that this act shall not be understood to admit such state into the union as aforesaid, unless there shall be a constitutional amendment empowering the congress to admit into the union new states formed beyond the boundaries of the united states, as known and understood at the time of establishing the constitution for the united states: it was determined in the negative--yeas , nays , as follows: yeas.--messrs. champlin, dana, german, gilman, goodrich, lloyd, pickering, and reed. nays.--messrs. campbell, clay, condit, franklin, gaillard, gregg, lambert, leib, mathewson, robinson, smith of maryland, smith of new york, tait, taylor, turner, whiteside, and worthington. on motion, by mr. bradley, to postpone the further consideration of the bill to the second monday in february next, it was determined in the negative. on the question, shall the bill be read a third time as amended? it was determined in the affirmative--yeas , nays , as follows: yeas.--messrs. brent, clay, condit, franklin, gaillard, gregg, lambert, mathewson, pope, robinson, smith of maryland, smith of new york, tait, taylor, turner, whiteside, and worthington. nays.--messrs. bradley, champlin, dana, german, gilman, goodrich, horsey, lloyd, pickering, and reed. friday, february . the credentials of james a. bayard, appointed a senator by the legislature of the state of delaware, for the term of six years from the third day of march next: and of william h. crawford, appointed a senator by the legislature of the state of georgia, for the term of six years from the third day of march next, were severally read, and ordered to lie on file. wednesday, february . mr. bradley presented the petition of charlotte hazen, relict of the late brigadier general moses hazen, praying a grant of land may be made to her, as a canadian refugee, or that a small addition, in lieu thereof, may be added to her present pension from congress, for reasons stated at large in the petition; which was read, and referred to a select committee, to consider and report thereon by bill or otherwise; and messrs. bradley, franklin, and german, were appointed the committee. monday, february . _bank of the united states._ the senate resumed, as in committee of the whole, the bill to amend and continue in force an act, entitled "an act to incorporate the subscribers to the bank of the united states," passed on the th day of february, one thousand seven hundred and ninety-one. mr. anderson said that having been a member of the committee who reported the bill before the senate, and not feeling himself at liberty to oppose the introduction of the report, yet, thinking it might be advisable to try the principle before they proceeded to discuss the details, he should move to strike out the first section of the bill. he would barely observe that, was this not a question which was generally understood, on which not only every member of this house, but every citizen of the united states had made up his mind, he should feel himself bound to offer reasons in support of the motion; but, inasmuch as it was a question which every gentleman had doubtless decided in his own mind, he felt unwilling to take up any more of the attention of the senate, especially so late in the session, when there was so much business of importance before them which required to be acted on. mr. crawford said that he should proceed, though reluctantly, to explain the reasons of the committee for reporting the bill, which is now under consideration. after the most minute examination of the constitution, the majority of that committee were decidedly of opinion that the congress of the united states were clearly invested with power to pass such a bill. the object of the constitution was twofold: st, the delegation of certain general powers, of a national nature, to the government of the united states; and d, the limitation or restriction of the state sovereignties. upon the most thorough examination of this instrument, i am induced to believe, that many of the various constructions given to it are the result of a belief that it is absolutely perfect. it has become so extremely fashionable to eulogize this constitution, whether the object of the eulogist is the extension or contraction of the powers of the government, that whenever its eulogium is pronounced, i feel an involuntary apprehension of mischief. upon the faith of this imputed perfection, it has been declared to be inconsistent with the entire spirit and character of this instrument, to suppose that after it has given a general power it should afterwards delegate a specific power fairly comprehended within the general power. a rational analysis of the constitution will refute in the most demonstrative manner this idea of its perfection. this analysis may excite unpleasant sensations; it may assail honest prejudices; for there can be no doubt that honest prejudices frequently exist, and are many times perfectly innocent. but when these prejudices tend to destroy even the object of their affection, it is essentially necessary that they should be eradicated. in the present case if there be any who, under the conviction that the constitution is perfect, are disposed to give it a construction that will render it wholly imbecile, the public welfare requires that the veil should be rent, and that its imperfection should be disclosed to public view. by this disclosure it will cease to be the object of adoration, but it will nevertheless be entitled to our warmest attachment. the th section of the st article of the constitution contains among others the following grant of powers, viz: to coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures; to raise and support armies; to provide and maintain a navy; to regulate commerce with foreign nations, and among the several states, and with the indian tribes; to establish post-offices and post roads. this selection contains five grants of general power. under the power to coin money it is conceived that congress would have a right to provide for the punishment of counterfeiting the money after it was coined, and that this power is fairly incidental to, and comprehended in, the general power. the power to raise armies and provide and maintain a navy comprehends, beyond the possibility of doubt, the right to make rules for the government and regulation of the land and naval forces; and yet in these three cases, the constitution, after making the grant of general power, delegates specifically the powers which are fairly comprehended within the general power. if this, however, should be denied, the construction which has been uniformly given to the remaining powers which have been selected, will establish the fact beyond the power of contradiction. under the power to regulate commerce, congress has exercised the power of erecting light-houses, as incident to that power, and fairly comprehended within it. under the power to establish post-offices, and post roads, congress has provided for the punishment of offences against the post-office department. if the congress can exercise an incidental power not granted in one case, it can in all cases of a similar kind. but it is said, that the enumeration of certain powers excludes all other powers not enumerated. this is true so far as original substantive grants of power are concerned, but it is not true when applied to express grants of power, which are strictly incidental to some original and substantive grant of power. if it were true in relation to them, congress could not pass a law to punish offences against the post-office establishment, because the constitution has expressly given the power to punish offences against the current coin, and as it has given the power to punish offences committed against that grant of general power, and has withheld it in relation to the power to establish post-offices and post roads. congress cannot, according to this rule of construction, so warmly contended for, pass any law to provide for the punishment of such offences. the power to make rules for the regulation and government of the land and naval forces, i have shown to be strictly incidental to the power to raise armies, and provide and maintain navies; but, according to this rule of construction, all incidental powers are excluded except the few which are enumerated, which would exclude from all claim to constitutionality, nearly one-half of your laws, and, what is still more to be deprecated, would render your constitution equally imbecile with the old articles of confederation. when we come to examine the th article, the absurdity of this rule of construction, and also of the idea of perfection which has been attributed to the constitution, will be equally manifest. this article appears to be of a miscellaneous character and very similar to the codicil of a will. the first article provides for the organization of congress; defines its powers; prescribes limitations upon the powers previously granted; and sets metes and bounds to the authority of the state governments. the second article provides for the organization of the executive department, and defines its power and duty. the d article defines the tenure by which the persons in whom the judicial power may be vested shall hold their offices, and prescribes the extent of their power and jurisdiction. these three articles provide for the three great departments of government called into existence by the constitution, but some other provisions just then occur, which ought to have been included in one or the other of the preceding articles, and these provisions are incorporated and compose the th article. the st section of it declares, that "full faith and credit shall be given in each state, to the public acts, records, and judicial proceedings of every other state. and the congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof." in the second section it declares, that a person, charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime. a similar provision is contained in the same section, relative to fugitives who are bound to labor, by the laws of any state. in the first case which has been selected, express authority has been given to congress, to prescribe the manner in which the records, &c., should be proved, and also the effect thereof, but in the other two, no authority is given to congress, and yet the bare inspection of the three cases will prove that the interference of congress is less necessary in the first than in the two remaining cases. a record must always be proved by itself, because it is the highest evidence of which the case admits. the effect of a record ought to depend upon the laws of the state of which it is a record, and, therefore, the power to prescribe the effect of a record was wholly unnecessary, and has been so held by congress--no law having been passed to prescribe the effect of a record. in the second case there seems to be some apparent reason for passing a law to ascertain the officer upon whom the demand is to be made; what evidence of the identity of the person demanded and of the guilt of the party charged must be produced before the obligation to deliver shall be complete. the same apparent reason exists for the passage of a law relative to fugitives from labor. according, however, to the rule of construction contended for, congress cannot pass any law to carry the constitution into effect, in the two last cases selected, because express power has been given in the first and is withheld in the two last. congress has nevertheless passed laws to carry those provisions into effect, and this exercise of power has never been complained of by the people or the states. mr. president, it is contended by those who are opposed to the passage of this bill, that congress can exercise no power by application, and yet it is admitted, nay, even asserted, that congress would have power to pass all laws necessary to carry the constitution into effect, whether it had given or withheld the power which is contained in the following paragraph of the th section of the st article: "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this constitution in the government of the united states or in any department or officer thereof." if this part of the constitution really confers no power, it at least, according to this opinion, strips it of that attribute of perfection which has by these gentlemen been ascribed to it. but, sir, this is not the fact. it does confer power of the most substantial and salutary nature. let us, sir, take a view of the constitution upon the supposition that no power is vested in the government by this clause, and see how the exclusion of power by implication can be reconciled to the most important acts of the government. the constitution has expressly given congress power "to constitute tribunals inferior to the supreme court," but it has nowhere expressly given the power to constitute a supreme court. in the d article it is said, "the judicial power of the united states shall be vested in one supreme court, and in such inferior courts as the congress may from time to time ordain and establish." the discretion, which is here given to congress, is confined to the inferior courts, which it may from time to time ordain and establish, and not to the supreme court. in the discussion which took place upon the bill to repeal the judicial system of the united states in the year , this distinction is strongly insisted upon by the advocates for the repeal. the supreme court was said to be the creature of the constitution, and, therefore, intangible, but that congress, possessing a discretionary power to create or not to create inferior tribunals, had the same discretionary power to abolish them whenever it was expedient. but if even the discretionary power here vested does extend to the supreme court, yet the power of congress to establish that court must rest upon implication, and upon implication alone. under the authority to establish tribunals inferior to the supreme court, the power to establish a supreme court would, according to my ideas, be vested in congress by implication. and, sir, it is only vested by implication, even if the declaration, that congress shall have power to pass all laws necessary and proper to carry into effect the power vested in any department or officer of the government should be held to be an operative grant. under this grant, congress can pass laws to carry into effect the powers vested in the judicial department? what are the powers vested in this department. that it shall exercise jurisdiction in all cases in law and equity arising under this constitution, &c., in all cases affecting ambassadors, &c., but the power to create the department and to carry into effect the powers given to or vested in that department, are very different things. the power to create the supreme court cannot be expressly granted in the power to pass all laws necessary and proper to carry into effect the powers vested in that court, but must, as i have endeavored to prove, be derived from implication. let me explain my understanding of a power which exists by implication, by an example which will be comprehended by all who hear me. in a devise, an estate is granted to a, after the death of b, and no express disposition is made of the estate during the life of a; in that case a is said to have an estate for life, by implication, in the property so devised. so when the constitution gives the right to create tribunals inferior to the supreme court, the right to create the supreme is vested in congress by implication. shall we after this be told that congress cannot constitutionally exercise any right by implication? by the exercise of a right derived only from implication, congress has organized a supreme court, and then, as incidental to power, existing only by implication, it has passed laws to punish offences against the law by which the court has been created and organized. sir, the right of the government to accept of the district of columbia, exists only by implication. the right of the government to purchase or accept of places for the erection of forts, magazines, arsenals, and dockyards, exists only by implication, and yet no man in the nation, so far as my knowledge extends, has complained of the exercise of those implied powers, as an unconstitutional usurpation of power. the right to purchase or except of places for the erection of light-houses, as well as the right to erect and support light-houses, must be derived by implication alone, if any such right exists. the clause in the constitution which gives congress the power "to exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of congress, become the seat of government of the united states, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings," certainly gives no express power to accept or purchase any of the places, destined for the uses therein specified. the only power expressly given in this clause is that of exercising exclusive legislation in such places; the right to accept or purchase must be derived by implication from this clause, or it must be shown to be comprehended in or incidental to some other power expressly delegated by the constitution. i shall now attempt to show, that according to the construction which has been given to other parts of this constitution, congress has the right to incorporate a bank to enable it to manage the fiscal concerns of the nation. if this can be done, and if it can also be shown that the correctness of such construction has never excited murmur or complaint--that it has not even been questioned, i shall have accomplished every thing which it will be incumbent on me to prove, to justify the passage of the bill upon your table. the power to lay and collect taxes, duties, imposts and excises, together with the power to pass all laws which may be necessary and proper for carrying into effect the foregoing powers, when tested by the same rule of construction which has been applied to other parts of the constitution, fairly invests congress with the power to create a bank. under the power to regulate commerce, congress exercises the right of building and supporting light-houses. what do we understand by regulating commerce? where do you expect to find regulations of commerce? will any man look for them any where else than in your treaties with foreign nations, and in your statutes regulating your custom-houses and custom-house officers? what are the reasons for vesting congress with the right to regulate commerce with foreign nations, and among the several states? the commerce of a nation is a matter of the greatest importance in all civilized countries. it depends upon compacts with other nations, and whether they are beneficial or prejudicial depends not so much on the reciprocal interest of nations as upon their capacity to defend their rights and redress their wrongs. it was therefore highly important that the right to regulate commerce with foreign nations should be vested in the national government. if the regulation of commerce among the several states had been left with the states, a multiplicity of conflicting regulations would have been the consequence. endless collisions would have been created, and that harmony and good neighborhood, so essential between the members of a federal republic, would have been wholly unattainable. the best interest of the community, therefore, imperiously required, that this power should be delegated to congress. not so of light-houses. the interest of the states would have induced them to erect light-houses, where they were necessary, and when erected they would have been equally beneficial to their own vessels, the vessels of their sister states, and of foreign nations. the performance of this duty could have been most safely confided to the states. they were better informed of the situations in which they ought to be erected than congress could possibly be, and could enforce the execution of such regulations as might be necessary to make them useful. how then has it happened that congress has taken upon itself the right to erect light-houses, under their general power to regulate commerce? i have heard and seen in the public prints a great deal of unintelligible jargon about the incidentality of a law to the power delegated and intended to be executed by it, and of its relation to the end which is to be accomplished by its exercise, which i acknowledge i do not clearly and distinctly comprehend, and must therefore be excused from answering. i speak now of the public newspapers, to which i am compelled to resort to ascertain the objections which are made to this measure, as gentlemen have persevered in refusing to assign the reasons which have induced them to oppose the passage of the bill. but, sir, i can clearly comprehend that the right to erect light-houses is not incidental to the power of regulating commerce, unless every thing is incidental to that power which tends to facilitate and promote the prosperity of commerce. it is contended that under the power to lay and collect taxes, imposts, and duties, you can pass all laws necessary for that purpose, but they must be laws to lay and collect taxes, imposts, and duties, and not laws which tend to promote the collection of taxes. a law to erect light-houses is no more a law to regulate commerce, than a law creating a bank is a law to collect taxes, imposts and duties. but the erection of light-houses tends to facilitate and promote the security and prosperity of commerce, and in an equal degree the erection of a bank tends to facilitate and insure the collection, safe-keeping, and transmission of your revenue. if, by this rule of construction, which is applied to light-houses, but denied to the bank, congress can, as incidental to the power to regulate commerce, erect light-houses, it will be easy to show that the same right may be exercised, as incidental to the power of laying and collecting duties and imposts. duties cannot be collected, unless vessels importing dutiable merchandise arrive in port; whatever, therefore, tends to secure their safe arrival may be exercised under the general power; the erection of light-houses does facilitate the safe arrival of vessels in port, and congress therefore can exercise this right as incidental to the power to lay imposts and duties. but it is said the advocates of the bank differ among themselves in fixing upon the general power to which the right to create a bank is incidental, and that this difference proves that there is no incidentality, to use a favorite expression, between that and any one of the enumerated general powers. the same reason can be urged, with equal force, against the constitutionality of every law for the erection of light-houses. let the advocates for this doctrine lay their finger upon the power to which the right of erecting light-houses is incidental. it can be derived with as much apparent plausibility and reason from the right to lay duties, as from the right to regulate commerce. who is there, now, in this body who has not voted for the erection of a light-house? and no man who reads one of these will believe it to be a regulation of commerce. and no man in the nation, so far as my knowledge extends, has ever complained of the exercise of this power. the right to erect light-houses is exercised, because the commerce of the nation, or the collection of duties, is greatly facilitated by that means; and, sir, the right to create a bank is exercised because the collection of your revenue, and the safe-keeping and easy and speedy transmission of your public money is not simply facilitated, but because these important objects are more perfectly secured by the erection of a bank than they can be by any other means in the power of human imagination to devise. we say, therefore, in the words of the constitution, that a bank is necessary and proper, to enable the government to carry into complete effect the right to lay and collect taxes, imposts, duties, and excises. we do not say that the existence of the government absolutely depends upon the operations of a bank, but that a national bank enables the government to manage its fiscal concerns more advantageously than it could do by any other means. the terms necessary and proper, according to the construction given to every part of the constitution, imposes no limitation upon the powers previously delegated. if these words had been omitted in the clause giving authority to pass laws to carry into execution the powers vested by the constitution in the national government, still congress would have been bound to pass laws which were necessary and proper, and not such as were unnecessary and improper. every legislative body, every person invested with power of any kind, is morally bound to use only those means which are necessary and proper for the correct execution of the powers delegated to them. but it is contended, that if a bank is necessary and proper for the management of the fiscal concerns of the nation, yet congress has no power to incorporate one, because there are state banks which may be resorted to. no person who has undertaken to discuss this question has, as far as my knowledge extends, ventured to declare that a bank is not necessary. every man admits, directly or indirectly, the necessity of resorting to banks of some kind. this admission is at least an apparent abandonment of the constitutional objection; for, if a bank is necessary and proper, then have congress the constitutional right to erect a bank. but this is denied. it is contended that this idea rests alone upon the presumption that the government of the united states is wholly independent of the state governments, which is not the fact; that this very law is dependent upon the state courts for its execution. this is certainly not the fact. the courts of the united states have decided, in the most solemn manner, that they have cognizance of all cases affecting the bank of the united states. sir, it is true that the government of the united states is dependent upon the state governments for its organization. members of both houses of congress, and the president of the united states, are chosen by the state governments, or under the authority of their laws. but it is equally true, that wherever the constitution confides to the state governments the right to perform any act in relation to the federal government, it imposes the most solemn obligation upon them to perform the act. the constitution of the united states, as to these particular acts, is the constitution of the several states, and their functionaries are accordingly sworn to support it. can it, then, be seriously contended, that because the constitution has in some cases made the government of the united states dependent upon the state governments, in all which cases it has imposed the most solemn obligations upon them to act, that it will be necessary and proper for congress to make itself dependent upon them in cases where no such obligation is imposed? the constitution has defined all the cases where this government ought to be dependent upon that of the states; and it would be unwise and improvident for us to multiply these cases by legislative acts, especially where we have no power to compel them to perform the act, for which we have made ourselves their dependents. in forming a permanent system of revenue, it would be unwise in congress to rely, for its collection and transmission from one extreme of this extensive empire to the other, upon any accidental circumstance, wholly beyond their power or control. there are state banks in almost every state in the union, but their existence is wholly independent of this government, and their dissolution is equally so. the secretary of the treasury has informed you that he conceives a bank is necessary to the legitimate exercise of the powers vested by the constitution in the government. i know, sir, that the testimony of this officer will not be very highly estimated by several honorable members of this body. i am aware that this opinion has subjected him, and the committee also, to the most invidious aspersions; but, sir, the situation of that officer, independent of his immense talents, enables him to form a more correct opinion than any other man in the nation of the degree of necessity which exists at the present time for a national bank, to enable the government to manage its fiscal operations. he has been ten years at the head of your treasury; he is thoroughly acquainted with the influence of the bank upon your revenue system; and he has, when called upon, declared that a bank is necessary to the proper exercise of the legitimate powers of the government. his testimony is entitled to great weight in the decision of this question, at least with those gentlemen who have no knowledge of the practical effects of the operations of the bank in the collection, safe-keeping, and transmission of your revenue. in the selection of means to carry any of your constitutional powers into effect, you must exercise a sound discretion; acting under its influence, you will discover that what is proper at one time may be extremely unfit and improper at another. the original powers granted to the government by the constitution can never change with the varying circumstances of the country, but the means by which those powers are to be carried into effect must necessarily vary with the varying state and circumstances of the nation. we are, when acting to-day, not to inquire what means were necessary and proper twenty years ago, not what were necessary and proper at the organization of the government, but our inquiry must be, what means are necessary and proper this day. the constitution, in relation to the means by which its powers are to be executed, is one eternal _now_. the state of things now, the precise point of time when we are called upon to act, must determine our choice in the selection of means to execute the delegated powers. mr. lloyd.--mr. president: this is indeed, sir, an up-hill, wind-mill sort of warfare--a novel mode of legislative proceeding. that a bill should be brought in on a very important subject which has been long under consideration, and that a gentleman should move to strike out the first section of the bill, which comprises all its vitality, (for it is the first section which provides for the continuance of the bank,) and should be supported in it, without deigning to assign any other reasons than may be derived from newspaper publications, which are so crude and voluminous that not one man out of ten will so far misspend his time as to take the trouble to read them, is indeed extraordinary. still, if gentlemen choose to adopt this dumb sort of legislation, and are determined to take the question without offering any arguments in support of their opinions, i certainly should not have interfered with their wishes, had i not been a member of the committee who had reported the bill, who had heard the testimony offered by two very respectable delegations from philadelphia; one from the master manufacturers and mechanics of the city, and the other from the merchants; and had i not taken minutes of this testimony, which i find it is expected from me that i should relate to the senate. sir, i consider the motion to strike out, now under consideration, as going to the entire destruction of the bill, without any reference to its details or modifications; it therefore appears to me in order, to take into consideration only the material principle of the bill; that is, whether it be proper that the charter of the bank should be renewed on any terms whatever, let those terms be what they may. sir, it is admitted by the secretary of the treasury, in his communications to congress, that the concerns of this bank have been "skilfully and wisely managed," that the bank has made a very limited and moderate use of the public moneys deposited with it; and that it has greatly facilitated the operations of government by the safe-keeping and transmission of the public moneys. it has at all times met the wishes of the government in making loans. it has done this even at six per cent., while the government have been obliged, in one instance, for a considerable amount to pay eight per cent. to other persons for the loans obtained from them. it is admitted, sir, that the bank, at the request of the treasury department, has established branches for the purpose of facilitating the operations of the government at places where such establishments could not but be inconvenient to them in point of management, and disadvantageous in point of profit. i allude more particularly, sir, to the branches of the bank which has been established at new orleans and at washington. we have been told this session, sir, by a gentleman from maryland, (mr. smith,) that the territory of orleans is a very wealthy one, that it probably contains a greater number of rich inhabitants, for its population, than any other district in the union. sir, if this be the fact, of whom does this wealthy population consist? not of the inhabitants, but of the planters; men who are not borrowers of the bank, who, when they realize the sales of their produce, invest the surplus proceeds of it beyond their expenditure in the funds, or in the acquisition of new lands, or in the purchase of an additional number of negroes. sir, it is notorious, that from the recent possession by the united states of louisiana, and the certainty that new orleans must soon be the emporium of an immense western commerce, that city has become more the resort of the young, the adventurous, the enterprising and the rash among the mercantile men of our country, than any other city in the union; and it is obvious, sir, in proportion as the borrowers from a bank consist of persons of this description, in the same proportion must the circumstances of such bank be unsound; and without possessing any particular knowledge whatever on the state of this bank, if the collections of its debts are speedily made, i would not make the purchase at a discount of twenty-five per cent. from the nominal amount of them. sir, we can judge with more accuracy when we come nearer home. what is the state of the bank in this city? what the ability of its debtors to meet their engagements? it is stated the branch has a loan out here of four hundred thousand dollars. where is the navigation?--where the wealthy merchants?--where are the opulent tradesmen?--the extensive manufacturers, to refund this money, when they are called on to do it? sir, they are not to be found; they do not exist here; there are but very few opulent men in the city, and those are either not borrowers of the bank, or not borrowers to an amount of any importance. where, then, is the money to be found, or what has been done with it? it has probably been taken out of the bank of the united states to build up the five or six district banks which you have chartered the present session; to furnish the means of erecting the fifty or sixty brick houses which we are told have made their appearance during the last summer; to encourage speculations in city lots, and to enable the proprietors to progress with the half-finished canal which nearly adjoins us. well, sir, if the bank promptly calls in its loan of four hundred thousand dollars, will the debtors be enabled to meet their payments? can they sell these lots, these brick houses, these canal shares? no, sir, in such a state of things they could find no purchasers, they could nearly as well create a world as to furnish the money; and if the bank is to stop, and the payment of this debt be speedily coerced, i would not give two hundred thousand dollars for the whole of it. in addition to this, i shall show presently, from testimony which cannot be controverted, that the conduct of the bank of the united states, or its directors, or rather the stockholders, whose agents they are, in addition to being wise and skilful, and moderate, as the secretary of the treasury states them to have been, that they have also been honorable, and liberal, and impartial; and if, in addition to this, it be proved that the bank has, in every instance where it had the ability to do it, met the wishes of the government, and to facilitate its views in the security and collection of the revenue, it has also established branches where it must have been obviously and palpably to the disadvantage of the bank to do it--if it has furnished capitals for the extension of our commerce, if it has provided means for the establishment of important manufactories, if it has had a tendency to raise the price of our domestic produce, and has thus encouraged industry, and improved and embellished the interior of the country--it would seem pretty strongly to follow, that if it be expedient to preserve the existence of an institution similar to this, then these gentlemen, on the score of merit, added to the experience of twenty years' successful operation, have a fair claim on the government for a preference in favor of that which is already in operation. i am aware, sir, that it may be stated in opposition to this claim, that these stockholders have enjoyed a boon for twenty years from which others of their fellow-citizens have been deprived, except on such terms as the sellers of shares chose to prescribe; that the charter expires by its own limitation, and that beyond this period they have no right to expect any thing which may not arise from the interest and convenience of the government. i admit, sir, there is considerable strength in these objections. the exclusive right contained in the charter ever appeared to me as furnishing the most solid constitutional objection against the bank. the creation of monopolies; the granting of exclusive privileges, except so far as to secure to the authors of useful inventions the benefit of their discoveries; the tying up of the hands of the legislature, and depriving itself of the power of according to a set of citizens, who may come into legal existence to-morrow, or ten years hence, what it had given to another; ever appeared to me hostile to the genius and spirit of the people of the united states, and of all their institutions. highly then, sir, as i am induced to think of the conduct of this bank, from the best evidence i can obtain, still, from the considerations i have just mentioned, did the question now before us simply affect the stockholders, i should certainly not trouble the senate with any remarks in reference to it, and should sit down in entire acquiescence, whether the prayer of their petition for the renewal of the charter of the bank were granted or rejected. sir, before quitting this idea of constitutional objection, permit me to make one or two brief remarks in regard to it. it is impossible for the ingenuity of man to devise any written system of government, which, after a lapse of time, extension of empire, or change of circumstances, shall be able to carry its own provisions into operation--hence, sir, the indispensable necessity of implied or resulting powers, and hence the provision in the constitution that the government should exercise such additional powers as were necessary to carry those that had been delegated into effect. sir, if this country goes on increasing and extending, in the ratio it has done, it is not impossible that hereafter, to provide for all the new cases that may rise under this new state of things, the defined powers may prove only a text, and the implied or resulting powers may furnish the sermon to it. permit me, sir, to put one question on this head, in addition to those so ably, and to my view, unanswerably put yesterday by the honorable gentleman from georgia, (mr. crawford.) whence, sir, do you get the right, whence do you derive the powers to erect custom-houses in the maritime districts of the united states? to attach to them ten, fifteen, or twenty custom-house officers; and clothe these men with authority to invade the domicile, to break into the dwelling-house of perhaps an innocent citizen? whence do you get it, sir, except as an implied power resulting from the authority given in the constitution "to lay and collect taxes, duties, imposts, and excises?" if, under this authority, you can erect these custom-houses and create this municipal, fiscal, inquisitorial _gens d'armerie_, with liberty to violate the rights of the citizen, to break into his castle at midnight, without even a form of warrant, on a plausible appearance of probability, or probable cause of suspicion of his secreting smuggled goods, which the event may prove to be unfounded--and it will be recollected that a majority of congress voted for the grant of this power in its most offensive form, when two years since they voted for the act enforcing the embargo--i say, sir, if under this general power to collect duties, you can erect the establishment and give the offensive power just mentioned, can you not, with the concurrence even of the citizens, adopt another more mild and useful mode, and create an establishment for the collection and safe-keeping of the revenue, and place it under the direction of ten or twelve directors, and christen it an office of discount and deposit, or of collection and payment, as you like best? and can you not, when you have thus created it, give to the directors a power, which perhaps they would have without your grant, to receive and keep the cash of those who choose to place it with them and to loan them money at the legal rate of interest, and in some places, as at new york, at nearly fifteen per cent. above the legal rate of interest? if you can do this, then you have your bank established, sir--and, most assuredly, if you can do one of these things you can do the other. sir, the constitutional objection to this bank, on the ground that congress had not the power to grant an act of incorporation, has ever appeared to me the most unsound and untenable. still gentlemen of intelligence and integrity, who have thought long and deeply on the subject, think differently from me: and i feel bound to respect their opinions, however opposed they may be to my own. yet, sir, i will venture to predict, without feeling any anxiety for the fate of the prophecy, that should this bank be suffered to run down, such will be the state of things before this time twelve months, that there are other gentlemen, who at present have constitutional objections, but who have not thought so long and deeply upon them, who will, before that time, receive such a flood of intelligence, as on this head perfectly to dispel their doubts, and quiet their consciences. sir, i shall now proceed as briefly as may be in my power to state the situation of this bank on the expiration of its charter, and the effects on the community consequent on it. there is now due to the bank from individuals fifteen millions of dollars. these fifteen millions of dollars must be collected--the power of the bank to grant discounts will have ceased, and the duty of the directors must require them to make the collection. sir, how is this to be done? whence can the money be obtained? i shall demonstrate to you presently, that already, from an apprehension of a non-renewal of the charter of the bank, business is nearly at a stand--that navigation, real estate, and merchandise are unsalable; and that a man worth one hundred thousand dollars, at the recently rated value of property, and owing ten thousand dollars, must still be utterly unable to meet his engagements. suppose, sir, this property consists in houses or shipping; suppose his warehouse is full of goods, and he has a large sum placed at his credit in england? if, sir, he can neither sell his ships nor his goods--if he cannot sell his real estate nor scarcely give away his exchange, which hitherto, to men who had money in england, has been a never-failing source of supply in case of need; i say under these circumstances, sir, whatever may be his property, he cannot meet his engagements. sir, can men thus situated, solvent as they ought to be ten times over, find relief from the state banks? certainly not, sir. these banks have already gone to the extreme length of their ability; they have always discounted to an amount in proportion to their capital exceeding that of the bank of the united states, which is incontrovertibly proved by the dividends they have declared, which have at most universally equalled and frequently exceeded those of the bank of the united states, notwithstanding the advantage enjoyed by the latter from the deposit of public moneys. sir, so far from having it in their power, in the case of the dissolution of the bank of the united states, to assist the debtors to that bank in meeting their engagements to it--i affirm the fact, on which i have myself a perfect reliance, that, take the state banks from boston to washington, and after paying their debts to the bank of the united states, they have not, nor do i believe they have had, for six months back, specie enough to pay the debts due to their depositors, and the amount of their bills in circulation. and here i beg it to be observed, that bank bills and bank deposits, or credits, are precisely the same thing--with this difference, that the latter, from the residence in the neighborhood of the banks, and the vigilance of the proprietors, would be the first called for. how idle is it then to expect to obtain relief from banks which have already extended themselves beyond the bounds of prudence, and have not even at present the ability to meet their existing engagements? it might nearly as well be expected, that a man who was already a bankrupt should prop and support his failing neighbor. sir, much has been recently said of the amount of specie in the united states. theoretical men have made many and vague conjectures about it, for after all it must rest upon conjecture; some have estimated it at ten millions of dollars--some twelve, some twenty, and some newspaper scribblers at forty millions of dollars. sir, i do not believe that for the last ten years the united states have at any time been more bare of specie than at the present moment. a few years since, specie flowed in upon us in abundance. this resulted principally from an operation of a very singular and peculiar nature. the spanish government, as it was then understood, agreed to pay to france a very large sum of money--many millions of dollars, the precise number i am unable to state, from her possessions in south america. france contracted with a celebrated english banking house, as was said at the time, with either the concurrence or connivance of the english government, that this money should be obtained through the united states. these bankers, by their agent, contracted with certain american houses, principally i believe in baltimore, for the importation of this specie from la vera cruz into the united states, from whence it was not transmitted in coin to europe, but invested in adventures in the shipments of produce, the proceeds of which ultimately go into the hands of these bankers in london, or of their friends on the continent, from whom it was finally realized by the french government, either by drafts from paris, or remittances to that city. this operation had a trebly favorable effect on the united states--it made fortunes for some of the merchants, it furnished the means of shipments to europe, and it also provided the funds for adventures to the east indies and to china. but this contract has now been finished some years; and since that time there has been a constant drain of specie from the country. where it is in future to be procured from, i know not. not from south america. specie is, i believe, protected from exportation there, except to spain. from spain we cannot get it--to a great part of what was spain we have now scarcely any trade. from france it cannot be obtained, for if we can get it there even by license, we are obliged to bring back her produce or manufactures. from england it cannot be imported--it is now made highly penal to attempt to send it out of the kingdom. with south america we have but little trade--hitherto we furnished them with smuggled or licensed european and india goods; but now the markets are flooded with these goods by importations direct from england, and which have been attended with great loss to the shippers. for these reasons, it is difficult to find a vessel sailing from the united states to the spanish ports in south america. these are among the reasons why the amount of specie now in the country is small, and has for some time past been gradually lessening. sir, without indulging in vague conjectures, what are the best data we have to form an estimate of the amount of specie in the country? the bank of the united states has five millions of dollars in its vaults. in boston there are three state banks--in new york i believe four, philadelphia four, and baltimore eight--call these nineteen twenty, and allow on an average one hundred and fifty thousand dollars specie, which probably is as much as they generally possess, and this will make three millions of dollars; this amount, united to the sum in the vaults of the bank of the united states, gives eight millions of dollars--to which, if you allow two millions of dollars for a loose circulation of specie, you get an aggregate of ten millions of dollars. we are sometimes told of the large sums of money hoarded in our country by individuals--probably there may be some among the german farmers in pennsylvania--perhaps more in that state than in any other, or all the others in the union; but still of no great amount--the reputation of a little money possessed in this way easily swells into a large sum. at any rate, let the amount be what it may, in time of distress and mistrust, it would afford no addition to your circulating medium; for it is precisely in times like these, that men who hoard money will lock it up most securely. sir, the circulation of our country is at present emphatically a paper circulation--very little specie passes in exchange between individuals--it is a circulation bottomed on bank paper and bank credits, amounting perhaps to fifty millions of dollars. and on what, sir, does this circulation rest? it rests upon the ten millions of dollars, if that be the amount of specie in the country, and upon public confidence. the bank of the united states has fifteen millions of dollars to collect--call it ten, sir--nobody will dispute this--no one will pretend that this bank is not solvent--the remnant of its surplus dividends, and the interest it will have earned, will be sufficient to cover its losses at new orleans, at washington, and perhaps elsewhere. in what are these ten millions of dollars to be collected? in bank bills, the credit of which is at least doubtful? no, sir, in specie; and when this is entirely withdrawn from the state banks, and the banks are unable to pay the money for their bills, who does not see that this confidence is instantly destroyed--that the bubble bursts--that floods of paper bills will be poured in upon them, which they will be unable to meet, and which will for a time be as worthless as oak leaves--that the banks themselves must, at least temporarily, become bankrupts, and that a prostration of credit, and all those habits of punctuality which for twenty years, we have been striving so successfully to establish, will inevitably ensue, and, with them, also, there must be suspended the commerce, the industry and manufactures of the country; and a scene of embarrassment and derangement be produced, which has been unexampled in our history. i will now make a very few remarks on the effects which the dissolution of the bank will have on the revenue and fiscal concerns of the country. can it be supposed, sir, that the source to which will be imputed the distress that will have flowed from this event, will be the first to be thought of to be guarded against a participation of the evils that will result from it, in preference to the claims of the most intimate friends and connections? no, sir, the bonds due to the united states will be collected only at the tail of an execution. but i mean not to press this consideration. admit, for a moment, that they will all be equally well collected--that they will be paid as usual, although it is palpable that for a considerable time the merchants will be unable to find the means to pay them: yet, admit, sir, that the money is collected in the state banks, how is it to be transmitted? it must come to the centre of the seat of government; very little of the public money is expended in the northern section of the union. will it come from the eastward, in bills of the state banks? penobscot bank bills sometimes will not pass in boston; boston bills pass with difficulty in new york or philadelphia; and the bills of new york state banks probably would not be readily current in washington. you must, then, sir, if boston gives you a revenue of two millions of dollars, transmit the greater part of it to the seat of government, or wherever it may be wanted in specie. can this be done? we have not two millions of dollars of specie in our town, and, i may almost venture to say, never had. suppose you make this transmission once, can you do it a second time? no, sir, the thing is utterly impracticable. you must adopt some other mode. exchange between the different cities will not reach the case; frequently it cannot be purchased even for an insignificant amount. sir, will your money, when collected, be safe in the state banks? of this i am extremely doubtful. solicitations will undoubtedly be made for it from all quarters. they have already been made. in one instance, i am told, sir, the agent of a bank, even during the few past weeks, has been here for the purpose--that suddenly the agent was gone, and in a few days it was discovered that, owing to the failure of one of the debtors to the bank which he represented, (a great broker,) the stock had fallen in one day near per cent. what was this the evidence of, but that those who were most interested in this bank, the stockholders who were on the spot, and best acquainted with its solidity, were willing to wash their hands of their concern in it, at almost any rate of sacrifice? sir, i only state this, as it was here reported. i have no personal knowledge on the subject. but will you trust your funds with an institution thus precarious, and whose solidity is distrusted even by its best friends? wednesday, february . the credentials of nicholas gilman, appointed a senator by the legislature of the state of new hampshire, for the term of six years, commencing on the th day of march next, were read, and ordered to lie on file. thursday, february . _bank of the united states._ the senate resumed, as in committee of the whole, the bill to amend and continue in force an act, entitled "an act to incorporate the subscribers to the bank of the united states," passed on the th of february, . the question being to strike out the first section-- mr. giles.--mr. president: it is with great reluctance that i find myself compelled to enter into the discussion of the subject now under the consideration of the senate, but the observations which fell from the honorable gentleman from georgia (mr. crawford) were of such a character as to impose on me an irresistible obligation to present that view of the subject which has resulted from the best reflections i have been enabled to bestow on it. this obligation arises from the very high respect i entertain for the legislature of the state i have the honor to represent, the great respect i feel for the gentleman who made the observations, as well as from the respect which is manifestly due to myself. in executing this unpleasant task, i labor under circumstances of peculiar embarrassment. this embarrassment arises from a conviction that the views of the subject now proposed to be exhibited will disappoint the expectations both of the opposers and the favorers of the bill, and that they will not be acceptable to either. i shall not, however, in this instance, depart from my invariable habit, when urged by duty to participate in debate before this honorable body, of disclosing in the most undisguised manner my real opinions upon the whole subject, free of any consideration of political difficulties or inconveniences which may consequently affect myself. in the first place, i find myself called upon to oppose a law, on constitutional grounds, which has been in existence for nearly twenty years, and during that period, i am compelled to admit, has been acquiesced in by the several state governments, as well as by the general government, and its republican administrations. it is peculiarly irksome to me to question the constitutionality of a law which has been thus and so long acquiesced in, because it tends to give the character of instability to the laws generally, and in my judgment, tends also to impair the sacred character of the laws, and of course, to lessen their efficacy. in a government like ours, where the laudable boast of every citizen is that he lives under a government of laws, and not of men, no subject should be touched with more caution and delicacy than one which questions the validity of the laws, lessens the confidence of the citizens in them, or impairs the obligation of obedience to them. yet, sir, the course of observations i propose to make may have some of these tendencies, which i should extremely regret, and this apprehension, of course, produces embarrassment. connected with this idea is another circumstance of embarrassment. i cannot help observing the inordinate zeal manifested by the opposers of this bill, evidently resulting from a belief that its rejection will lessen the powers of the federal government. although it may be properly directed in the present instance, yet i think i have seen, and fear i may hereafter see the same spirit directed against some of the powers and proceedings of the government which i have deemed indispensable to its own preservation, and its beneficial efficacy towards the people. it may, perhaps, be thought by some not becoming in me to say that i have not been an inattentive observer of the progress of this government for twenty years, and more particularly, since the republican party came into power. some of the scenes through which i have passed, have produced an impressive influence on my mind. such is the nature of the government that its administration will vibrate from one principle to another, and it will always require great wisdom to keep its oscillations from wandering too far. whilst those who preceded us in power endeavored to legislate into the constitution an unnecessary constructive energy, leading to what has been called consolidation, it appears to me that we have taken too much the opposite course, leading to disunion and dissolution, by depriving it constructively of its legitimate, necessary, and proper powers. if this course should be unfortunately persevered in, it requires no spirit of prophecy to foresee that the government will fall to pieces from the want of due energy in the administration of its legitimate powers, or that some extraordinary means must be resorted to for its resuscitation. the honorable gentleman from georgia, (mr. crawford,) who reported this bill, as the chairman of the committee, to whom the subject was generally referred, excited not a little surprise in my mind by the prefatory remarks which fell from him in support of it. the gentleman prefaced his arguments by observing, "that it had latterly become the fashion to eulogize the constitution of the united states; and that whenever he heard lavish encomiums applied to it, he could not help apprehending mischief." i acknowledge i could not comprehend the bearing of this remark upon the question under discussion. i, sir, have long been in the habit of venerating the constitution, and have often expressed my admiration at the wisdom of its provisions; and i really had hoped that i might have been indulged in these sentiments and prepossessions, and even the expression of them upon proper occasions, without exciting in the mind of any gentleman apprehensions of mischief; nor can i divine what species of mischief the gentleman apprehends from that cause. mr. president, when we look over the whole world known to us; when we particularly cast our eyes over that part of it with which we have the most intimate relations; when we see the rapid strides which despotism is making over the whole human race; when we observe the various and powerful means now in use to rivet its immovable dominion upon mankind; when we reflect that the constitution of the united states now affords the only practical experiment upon the republican principle, and the only and last hope for the preservation and extension of the liberties of man; is it wonderful or alarming, that we should feel and express some partiality and even veneration for an instrument of so peculiar a character? or should even endeavor to teach others to venerate, to cherish, to support it? an instrument, whose provisions at least exempt us from the general scene of despotism, and may eventually extend their blessings to the whole human race? or if, in dwelling upon the wisdom and importance of its provisions, we might pass over some possible defects from scrutinizing them with an hypercritical eye, might not the omission be indulged without producing animadversion or censure? sir, we all venerate the republican principle. i know the gentleman from georgia (mr. crawford) does; nor do i pretend that my devotion to it is greater than his; but, sir, i have given the greatest attention to the observations of the gentleman upon the constitution; and i can now say that my veneration for the instrument, and admiration at the wisdom of its provisions, are not at all impaired nor diminished, notwithstanding the gentleman's criticisms, &c. i will now, mr. president, endeavor to exhibit the general character of the constitution; to point out the mode for its correct interpretation, and apply it to the subject now under consideration. in doing so, i propose to follow the course of observations made by the honorable chairman of the committee who reported the bill. the gentleman proceeded to remark, that in taking a review of the constitution he found general as well as incidental powers enumerated therein. i did not see the precise application the gentleman intended to make of this remark, but i have been induced to review the constitution in reference to this subject, and it does appear to me, that the classification and definition of powers is as well arranged as human wisdom could devise. i know that nothing is perfect which is the work of man; that no language is capable of perfect definition. but, as far as definition can be drawn from language, i conceive the constitution exhibits as perfect an example as is in existence. in the next place, the gentleman remarked that there was a number of cases in which congress had departed from the particular enumerated powers in the constitution and had resorted to implication or construction for the derivation of its powers. the remark is perfectly correct, and i am very ready to admit that there is no such thing as carrying into effect enumerated powers in any instrument whatever, without the intervention of certain derivative and implied powers. but if the gentleman had succeeded in showing that there had been aberrations by the congress of the united states from the enumerated powers of the constitution, would he think it correct to use those aberrations as precedents for still further aberrations? ought they not rather to be considered as mementoes on the part of congress to induce them to tread with more care, and, if they find that their former errors could not be supported by a fair and candid construction of the constitution, to restrain the laws within its wholesome provisions? certainly that is the use to which the history of errors presented by the honorable gentleman from georgia ought to be applied. but, before i proceed to examine the subject with more accuracy, i cannot avoid to express my surprise at another observation which fell from the gentleman. the gentleman observed, that the argument drawn from the distinction between ends and means was "incomprehensible;" and he went so far as to call it "nonsensical jargon." it is not only comprehensible to me, sir, as i conceive, but, in my opinion, is the only way in which a just construction of the constitution is to be attained. this results from the peculiar nature and organization of the instrument. permit me here to endeavor to illustrate my idea by a reference to the constitution itself? the constitution is an instrument which grew out of the situation of the united states at the time of, and preceding its adoption; and to show that the constitution recited the great objects of its formation, and then prescribed the means for carrying them into effect, i beg leave to refer to a part of the instrument itself. the preamble, like all other preambles, was designed to express the objects of the instrument or the ends to be effected by its provisions. "we, the people of the united states, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity; do ordain and establish this constitution for the united states of america." what is the plain language of this preamble? the answer is obvious. that certain great _ends_ or _objects_ are here proposed to be effected. in what mode, or by what _means_ are they to be effected? the preamble tells you, sir, "by establishing this constitution for the united states of america." that is the mode in which these great _ends_ are proposed to be effected, and the body of the instrument prescribes the _means_ which were deemed necessary and proper to the effectuation of these _ends_. the subject will be better understood by throwing the mind back to the period of time when this constitution originated, and reviewing the peculiar political situation of the united states then, and for some time antecedently thereto. at the time, and antecedently to the establishment of the present constitution, the existing state governments were in possession of all the powers of sovereignty, subject only to feeble and inefficient articles of confederation, without the means of executing their own will, and resting for its execution solely on requisitions upon the respective states, which might either comply or refuse to comply with such requisitions at their discretion. a non-compliance was almost invariably the result of state deliberations, and hence the feebleness of the old confederation. the present constitution was adopted as the remedy for this great and alarming evil. without it, disunion and ruin to the states would have been the inevitable consequence, because, upon actual experiment, the states were found utterly incompetent to the due administration of all the powers of sovereignty intrusted to their management. the reason of this incompetency was, that some of the most important powers of sovereignty inherently possessed a geographical influence beyond the geographical limits of the several states individually, and their jurisdiction could not transcend their geographical limits. of this description of powers is the power to declare war, &c., to regulate commerce, &c., and all the other enumerated powers of the constitution. in consequence of the conflicting systems adopted by the several states in relation to some of these powers, which were then in practical operation; particularly in the conflicting regulations of commerce, the states were getting into the most serious collisions, &c. the formidable evils necessarily growing out of the state of things required a formidable and competent remedy. the great subject for the contemplation of every reflecting mind in america was, what that remedy should be? the wise framers of our admirable constitution, after great deliberation, conceived and executed the only practical expedient. it consisted in separating the powers of sovereignty; in establishing a general government, and conferring on it all the powers of sovereignty whose geographical influence was found co-extensive with the geographical limits of the united states, and reserving to the state governments respectively those powers which were of a mere local character, and which possessed no influence beyond the limits of the states respectively. and also to confer on the general government "all the means necessary and proper" for executing its own laws in relation to these enumerated powers, without any dependence upon requisitions from the respective state governments for this indispensable object. the idea was a grand one, and executed with an admirable simplicity, and the most consummate wisdom. hence it appears that the great object of the framers of the constitution was to establish a general or federal government, and to confer on it all the powers of sovereignty, which in their nature and character possessed an influence co-extensive with the united states, and to reserve to the previously-existing state governments all the powers of sovereignty of a more local character, and whose influence did not extend beyond the geographical limits of the states respectively, and therefore could be rendered completely subservient to state jurisdiction and management. these are the means prescribed in the constitution for effecting the ends expressed in the preamble. to the administrators of the general government the framers of the constitution have said: we give to you all the powers of sovereignty of a general character; and to the administrators of the state governments they have said: we reserve to you all the powers of sovereignty of a local character. i verily believe, that if those various governments should be administered with the wisdom with which this separation of powers was made in the body of the constitution, the people of the united states will not be disappointed in the great and interesting objects proclaimed in its preamble. from this short history of the origin of the constitution, and the causes which produced it, it evidently appears, that the general or federal government is in its nature and character a government of enumerated powers, taken from previously existing state governments, enumerated and conferred on it, reserving all unenumerated powers to the state governments, or to the people in their individual capacities. but if any doubts had existed upon this subject, two amendments to the constitution, growing out of some jealousies lest a contrary interpretation should be given to the constitution, have been adopted, which ought to put this question to rest forever. the th and th articles of amendments to the constitution are as follow: "the enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people." "the powers not delegated to the united states by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." now, sir, can language be more explicit than this, in declaring that this charter contains certain enumerated powers, and that all not enumerated are reserved to the states or to the people? there is one article reserving rights to the people, and afterwards another article reserving them to the states and to the people. while on this subject, i beg leave to read a clause in the constitution, which i find among the enumerated powers, and which has been construed by some, as intended to convey a general grant of powers among the enumerated powers: "congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general welfare of the united states." the words "and to provide for the common defence and general welfare," have by some been considered as conveying a general grant of power. nothing is necessary to show that this is not a fair and correct construction of the constitution, but reading it with attention. these terms contain no grant of power whatever, but are used to express the ends or objects for which particular grants of power were given. paying the debts and providing for the common defence and general welfare are great objects, intimately connected with the particular grants of power which are given for their effectuation; and without these particular grants of power, it would not have been possible for congress to effect them. the framers of the constitution have simply selected some of the objects expressed in the preamble, and declared that to effect them, and to pay the debts of the united states, were the considerations which induced them to give to congress the power "to lay and collect taxes," &c. thus taxes are to be laid, &c. "to pay the debts, and to provide for the common defence and general welfare." could they have chosen a more appropriate phraseology? the plain language to congress is: "you shall have power to lay and collect taxes, to pay the debts," &c., and to provide for the common defence and general welfare, or, in other words, for the purpose of paying the debts, &c., and of providing for the common defence and general welfare. these words do not contain a general grant of powers, but express the objects of a particular grant of powers. the framers of the constitution could not have done an act so absurd as to make a general grant of powers, among an enumeration of specified powers. i will now, mr. president, proceed to examine those instances which the gentleman has presented of the supposed aberrations of the congress of the united states from the enumerated powers, and i think it will not be difficult to show that there is not a single instance quoted, but which is deducible from a fair and correct interpretation of the express words of the constitution, giving them their common and appropriate meaning. the first instance presented to our consideration by the honorable gentleman from georgia (mr. crawford) of the exercise of a power by congress not enumerated in the constitution, was the erection of light-houses. the gentleman from massachusetts, (mr. lloyd,) to whose dispassionate observations i listened with great pleasure, superadded the instance of the erection of custom-houses. on these, both of the gentlemen seemed to place great reliance, as cases in point with the one under consideration. both these powers i conceive are given to congress by the express words of the constitution; but if i should be mistaken in this idea, they are certainly comprehended as incidental and subservient to, or in other words, "necessary and proper" for carrying into effect some of the enumerated powers. the express words of the constitution give to congress the power "to lay and collect taxes, duties, imposts, and excises," &c.; "to regulate commerce with foreign nations among the several states, and with the indian tribes;" "to exercise exclusive legislation in all cases whatever, &c., over all places purchased by consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings." from these clauses of the constitution, taken in connection with each other, i think congress possesses the power to erect light-houses and custom-houses by the express words of the constitution; for both of these descriptions of houses must necessarily be included within the term "needful buildings," or the only construction which is at all applicable to these cases is, that needful buildings is the general term, and light-houses and custom-houses are particular instances or examples under the general term; or, if i may be so allowed to express my ideas, needful buildings may be considered as the genus, of which light-houses and custom-houses are particular species. the reason with the framers of the constitution for using this general term is obvious. it was, because it was impossible for them to foresee all the particular species of needful buildings which might become necessary to the salutary operations of this government in the course of its complicated and due administration; they therefore wisely left that subject to the discussion of congress, restrained and limited, nevertheless, by the requisition of the consent of the legislatures of the states respectively, in every case proposed for the exercise of this discretion. that this is a plain and correct interpretation of the constitution is evinced by the concurrent opinions of every legislature of every state, which has heretofore ceded lands for any of these objects; and it is to be remarked, that congress has never attempted to erect any of these buildings without the constitutional requisition of the consent of the states respectively. but if this term "needful buildings" had not been expressed in the constitution, i should not hesitate to admit with these gentlemen that the erection of light-houses and custom-houses might properly be deduced from the power to lay and collect taxes, duties, &c., which are particular grants of power enumerated in the constitution. because custom-houses are appropriately necessary to the collection of duties, and have always been deemed indispensable for that object, as are light-houses to the due regulation of commerce. these two powers are indispensably connected with, and subservient to, particular enumerated powers, and are therefore among the means which are necessary and proper for their effectuation; and as such are given to congress by the express words of the constitution, which are: congress shall have power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the united states, or in any department or officer thereof." from this course of interpretation, the gentlemen, reasoning from a supposed analogy, have asked, if congress can derive the right to erect light-houses and custom-houses from their necessary agency in effectuating the particular powers to which they are said to be appendant or appurtenant, why may it not in the same way derive the right of granting charters of incorporation for the same objects? or, in other words, if congress can constitutionally erect custom-houses for the purpose, or as the necessary means of collecting duties; why may it not establish a bank for the same object, &c.? the question is admitted to be a fair one; and if a clear distinction cannot be made in the two cases, it will be admitted either that congress may constitutionally establish a bank, or that it has heretofore transcended its powers in erecting custom-houses, &c. a clear and most obvious distinction appears to me to exist in the cases suggested by the gentlemen to be analogous, arising from the striking difference in the nature and essential character of these powers. a custom-house is in its nature incidental and subservient to the collection of duties. it is one of the common, necessary, and proper means to effect that end. it is believed that in no commercial country in the world are duties collected without them. besides, the erection of custom-houses does not involve in it the exercise of any other higher or consequential powers. the same remarks will apply to light-houses, as among the common, necessary, and proper means for the regulation of commerce, &c. is the incorporation of a bank of this character? it is not among the common, necessary, and proper means of effecting either of the foregoing enumerated powers, nor of any other enumerated in the constitution; still less is it incidental or subservient to any of the enumerated powers. it wants that connection, affiliation, and subserviency, to some enumerated power, which are clearly pointed out in relation to the two powers, to which it has been said to be analogous. besides, does granting a charter of incorporation to a bank involve no other higher or consequential power than merely erecting a needful building for collecting duties, &c.? it certainly does. it involves the power to grant charters of incorporation generally; and in this respect, principally, its character is essentially different from both of the powers cited by the gentleman. the power to grant charters of incorporation is not an incidental, subordinate, subservient power; it is a distinct, original, substantive power. it is also susceptible of the clearest definition; and not being among the enumerated powers, it seems to me that congress can have no fair claim to its exercise in any case. if congress had been expressly authorized to grant charters of incorporation generally, then granting a charter of incorporation to a bank would have been an instance, or among the means, of carrying into effect that enumerated power, and would have been as much connected and affiliated with it as is the erection of custom-houses with the collection of duties; but the power to grant charters of incorporation generally not being expressly given in the constitution, no particular instance involving the exercise of that power can be inferred by a fair and candid interpretation of the instrument. i do not mean to exaggerate the consequences which might result from an assumption of the power to grant charters of incorporation, &c. it is sufficient for me to say that it is a power of primary importance; that it involves as many incidental powers in its exercise as any one of the enumerated powers; that it is equal, if not paramount, to any; and, therefore, in my judgment, cannot be assumed by fair construction as incidental and subservient to any; and, of course, not as among the necessary and proper means for carrying any into effect. in fact, in its nature it does not in the smallest degree partake of the derivative, incidental character. it is original, substantive, distinct in itself, and susceptible of the plainest definition. hence, whilst i am willing to admit that a power, which is in its nature incidental and subservient to any enumerated power, and also among the necessary and proper means for carrying it into effect, may be exercised by congress without the express words of the constitution, i should be very unwilling to admit that congress should also exercise a power neither incidental nor subservient to any of the enumerated powers, nor among the necessary and proper means for carrying any into effect; still less should i be inclined to this admission, when the power thus proposed to be derived, incidentally or constructively, involves in it the exercise of almost unlimited powers. to illustrate my idea still further in this respect, i would observe, that the power to regulate descents, and to regulate the distribution of intestates, i conceive to be original, distinct, substantive powers; and, being among the powers which could in all respects be limited by the geographical boundaries of the individual states, and were therefore among the powers reserved to the management of the states, might as easily be assumed by congress as incidental to some one of the enumerated powers, as the assumption of the power to grant charters of incorporation, which i conceive was, for the same reason, left to the management of the states. i believe no gentleman will contend that congress can, under any candid construction, go so far in relation to those powers; nor do i see how it can in relation to the power of granting charters of incorporation. friday, february . _bank of the united states._ the senate resumed, as in committee of the whole, the bill to amend and continue in force an act, entitled "an act to incorporate the subscribers to the bank of the united states," passed on the th day of february, . mr. clay.--mr. president: when the subject involved in the motion now under consideration was depending before the other branch of the legislature, a disposition to acquiesce in their decision was evinced. for although the committee who reported this bill had been raised many weeks prior to the determination of that house on the proposition to recharter the bank, except the occasional reference to it of memorials and petitions, we scarcely ever heard of it. the rejection, it is true, of a measure brought before either branch of congress, does not absolutely preclude the other from taking up the same proposition; but the economy of our time, and a just deference for the opinion of others, would seem to recommend a delicate and cautious exercise of this power. as this subject, at the memorable period when the charter was granted, called forth the best talents of the nation--as it has, on various occasions, undergone the most thorough investigation, and as we can hardly expect that it is susceptible of receiving any further elucidation, it was to have been hoped that we should have been spared a useless debate. this was the more desirable because there are, i conceive, much superior claims upon us for every hour of the small portion of the session yet remaining to us. under the operation of these motives, i had resolved to give a silent vote, until i felt myself bound, by the defying manner of the arguments advanced in support of the renewal, to obey the paramount duties i owe my country and its constitution; to make one effort, however feeble, to avert the passage of what appears to me a most unjustifiable law. after my honorable friend from virginia (mr. giles) had instructed and amused us with the very able and ingenious argument which he delivered on yesterday, i should have still forborne to trespass on the senate, but for the extraordinary character of his speech. he discussed both sides of the question, with great ability and eloquence, and certainly demonstrated to the satisfaction of all who heard him, both that it was constitutional and unconstitutional, highly proper and improper to prolong the charter of the bank. the honorable gentleman appeared to me in the predicament in which the celebrated orator of virginia, patrick henry, is said to have been once placed. engaged in a most extensive and lucrative practice of the law, he mistook in one instance the side of the cause on which he was retained, and addressed the court and jury in a very splendid and convincing speech in behalf of his antagonist. his distracted client came up to him whilst he was progressing, and interrupting him, bitterly exclaimed, "you have undone me! you have ruined me!"--"never mind, give yourself no concern," said the adroit advocate; and turning to the court and jury, continued his argument by observing, "may it please your honors, and you, gentlemen of the jury, i have been stating to you what i presume my adversary may urge on his side. i will now show you how fallacious his reasoning and groundless his pretensions are." the skilful orator proceeded, satisfactorily refuted every argument he had advanced, and gained his cause! a success with which i trust the exertion of my honorable friend will on this occasion be crowned. it has been said by the honorable gentleman from georgia (mr. crawford) that this has been made a party question, although the law incorporating the bank was passed prior to the formation of parties, and when congress was not biased by party prejudices. [mr. crawford explained. he did not mean that it had been made a party question in the senate. his allusion was elsewhere.] i do not think it altogether fair to refer to the discussions in the house of representatives, as gentlemen belonging to that body have no opportunity of defending themselves here. it is true that this law was not the effect, but it is no less true that it was one of the causes of the political divisions of this country. and if, during the agitation of the present question, the renewal has, on one side, been opposed on party principles, let me ask if, on the other, it has not been advocated on similar principles? where is the macedonian phalanx, the opposition in congress? i believe, sir, i shall not incur the charge of presumptuous prophecy, when i predict that we shall not pick up from its ranks one single straggler! and if, on this occasion, my worthy friend from georgia has gone over into the camp of the enemy, is it kind in him to look back upon his former friends, and rebuke them for the fidelity with which they adhere to their old principles? i shall not stop to examine how far a representative is bound by the instructions of his constituents. this is a question between the giver and receiver of the instructions. but i must be permitted to express my surprise at the pointed difference which has been made between the opinions and instructions of state legislatures, and the opinions and details of the deputations with which we have been surrounded from philadelphia. whilst the resolutions of those legislatures--known, legitimate, constitutional and deliberative bodies--have been thrown into the back ground, and their interference regarded as officious, these delegations from self-created societies, composed of whom nobody knows, have been received by the committee with the utmost complaisance. their communications have been treasured up with the greatest diligence. never did the delphic priests collect with more holy care the frantic expressions of the agitated pythia, or expound them with more solemnity to the astonished grecians, than has the committee gathered the opinions and testimony of these deputies, and through the gentleman from massachusetts, pompously detailed them to the senate! philadelphia has her immediate representatives, capable of expressing her wishes upon the floor of the other house. if it be improper for states to obtrude upon congress their sentiments, it is much more highly so for the unauthorized deputies of fortuitous congregations. the first singular feature that attracts attention in this bill is the new and unconstitutional veto which it establishes. the constitution has required only, that after bills have passed the house of representatives and the senate, they shall be presented to the president for his approval or rejection, and his determination is to be made known in ten days. but this bill provides, that when all the constitutional sanctions are obtained, and when according to the usual routine of legislation it ought to be considered as a law, it is to be submitted to a new branch of the legislature, consisting of the president and twenty-four directors of the bank of the united states, holding their sessions in philadelphia, and if they please to approve it, why then it is to become a law! and three months (the term allowed by our law of may last, to one of the great belligerents for revoking his edicts, after the other shall have repealed his) are granted them to decide whether an act of congress shall be the law of the land or not! an act which is said to be indispensably necessary to our salvation, and without the passage of which, universal distress and bankruptcy are to pervade the country. remember, sir, that the honorable gentleman from georgia has contended that this charter is no contract. does it, then, become the representatives of the nation to leave the nation at the mercy of a corporation? ought the impending calamities to be left to the hazard of a contingent remedy? this vagrant power to erect a bank, after having wandered throughout the whole constitution in quest of some congenial spot whereupon to fasten, has been at length located by the gentleman from georgia on that provision, which authorizes congress to lay and collect taxes, &c. in , the power is referred to one part of the instrument; in , to another. sometimes it is alleged to be deducible from the power to regulate commerce. hard pressed here, it disappears, and shows itself under the grant to coin money. the sagacious secretary of the treasury in pursued the wisest course--he has taken shelter behind general, high-sounding, and imposing terms. he has declared in the preamble to the act establishing the bank, that it will be very conducive to the successful conducting of the national finances; will tend to give facility to the obtaining of loans, and will be productive of considerable advantage to trade and industry in general. no allusion is made to the collection of taxes. what is the nature of this government? it is emphatically federal, vested with an aggregate of specified powers for general purposes, conceded by existing sovereignties, who have themselves retained what is not so conceded. it is said that there are cases in which it must act on implied powers. this is not controverted, but the implication must be necessary, and obviously flow from the enumerated power with which it is allied. the power to charter companies is not specified in the grant, and i contend is of a nature not transferable by mere implication. it is one of the most exalted attributes of sovereignty. in the exercise of this gigantic power we have seen an east india company created, which has carried dismay, desolation, and death throughout one of the largest portions of the habitable world. a company which is, in itself, a sovereignty--which has subverted empires and set up new dynasties--and has not only made war, but war against its legitimate sovereign! under the influence of this power, we have seen arise a south sea company, and a mississippi company, that distracted and convulsed all europe, and menaced a total overthrow of all credit and confidence, and universal bankruptcy. is it to be imagined that a power so vast would have been left by the wisdom of the constitution to doubtful inference? it has been alleged that there are many instances, in the constitution, where powers, in their nature incidental, and which would have necessarily vested along with the principal power, are nevertheless expressly enumerated; and the power "to make rules and regulations for the government of the land and naval forces," which, it is said, is incidental to the power to raise armies and provide a navy, is given as an example. what does this prove? how extremely cautious the convention were to leave as little as possible to implication. in all cases where incidental powers are acted upon, the principal and incidental ought to be congenial with each other, and partake of a common nature. the incidental power ought to be strictly subordinate and limited to the end proposed to be attained by the specified power. in other words, under the name of accomplishing one object which is specified, the power implied ought not to be made to embrace other objects which are not specified in the constitution. if then you could establish a bank to collect and distribute the revenue, it ought to be expressly restricted to the purpose of such collection and distribution. it is a mockery, worse than usurpation, to establish it for a lawful object, and then extend it to other objects which are not lawful. in deducing the power to create corporations, such as i have described it, from the power to collect taxes, the relation and condition of principal and incident are prostrated and destroyed. the accessory is exalted above the principal. as well might it be said that the great luminary of day is an accessory, a satellite to the humblest star that twinkles forth its feeble light in the firmament of heaven! suppose the constitution had been silent as to an individual department of this government, could you, under the power to lay and collect taxes, establish a judiciary? i presume not; but if you could derive the power by mere implication, could you vest it with any other authority than to enforce the collection of the revenue? a bank is made for the ostensible purpose of aiding in the collection of the revenue, and while it is engaged in this, the most inferior and subordinate of all its functions, it is made to diffuse itself through society, and to influence all the great operations of credit, circulation, and commerce. like the virginia justice, you tell the man, whose turkey had been stolen, that your book of precedents furnishes no form for his case, but then you will grant him a precept to search for a cow, and when looking for that he may possibly find his turkey! you say to this corporation, we cannot authorize you to discount--to emit paper--to regulate commerce, &c. no! our book has no precedents of that kind. but then we can authorize you to collect the revenue, and, while occupied with that, you may do whatever else you please! what is a corporation such as the bill contemplates? it is a splendid association of favored individuals, taken from the mass of society, and invested with exemptions and surrounded by immunities and privileges. the honorable gentleman from massachusetts (mr. lloyd) has said that the original law, establishing the bank, was justly liable to the objection of vesting in that institution an exclusive privilege, the faith of the government being pledged that no other bank should be authorized during its existence. this objection he supposes is obviated by the bill under consideration; but all corporations enjoy exclusive privileges--that is, the corporators have privileges which no others possess; and if you create fifty corporations instead of one, you have only fifty privileged bodies instead of one. i contend that the states have the exclusive power to regulate contracts, to declare the capacities and incapacities to contract, and to provide as to the extent of responsibility of debtors to their creditors. if congress have the power to erect an artificial body and say it shall be endowed with the attributes of an individual--if you can bestow on this object of your own creation the ability to contract, may you not, in contravention of state rights, confer upon slaves, infants, and femes covert, the ability to contract? and if you have the power to say that an association of individuals shall be responsible for their debts only in a certain limited degree, what is to prevent an extension of a similar exemption to individuals? where is the limitation upon this power to set up corporations? you establish one, in the heart of a state, the basis of whose capital is money. you may erect others whose capital shall consist of land, slaves, and personal estate, and thus the whole property within the jurisdiction of a state might be absorbed by these political bodies. the existing bank contends that it is beyond the power of a state to tax it, and if this pretension be well founded, it is in the power of congress, by chartering companies, to dry up the whole of the sources of state revenue. georgia has undertaken, it is true, to levy a tax on the branch within her jurisdiction, but this law, now under a course of litigation, is considered as invalid. the united states own a great deal of land in the state of ohio; can this government, for the purpose of creating an ability to purchase it, charter a company? aliens are forbidden, i believe, in that state, to hold real estate--could you, in order to multiply purchasers, confer upon them the capacity to hold land, in derogation of the local law? i imagine this will hardly be insisted upon; and yet there exists a more obvious connection between the undoubted power, which is possessed by this government, to sell its land, and the means of executing that power, by increasing the demand in the market, than there is between this bank and the collection of a tax. this government has the power to levy taxes--to raise armies--provide a navy--make war--regulate commerce--coin money, &c. it would not be difficult to show as intimate a connection between a corporation, established for any purpose whatever, and some one or other of those great powers, as there is between the revenue and the bank of the united states. let us inquire into the actual participation of this bank in the collection of the revenue. prior to the passage of the act of , requiring the collectors of those ports of entry, at which the principal bank or any of its offices are situated, to deposit with them the custom-house bonds, it had not the smallest agency in the collection of the duties. during almost one moiety of the period to which the existence of this institution was limited, it was noways instrumental in the collection of that revenue, to which it is now become indispensable! the collection, previous to , was made entirely by the collectors; and even at present, where there is one port of entry, at which this bank is employed, there are eight or ten at which the collection is made as it was before . and, sir, what does this bank or its branches when resort is had to it? it does not adjust with the merchant the amount of the duty, nor take his bond; nor, if the bond is not paid, coerce the payment by distress or otherwise. in fact, it has no active agency whatever in the collection. its operation is merely passive; that is, if the obligor, after his bond is placed in the bank, discharges it, all is very well. such is the mighty aid afforded by this tax-gatherer, without which the government cannot get along! again, it is not pretended that the very limited assistance which this institution does in truth render, extends to any other than a single species of tax, that is, duties. in the collection of the excise, the direct and other internal taxes, no aid was derived from any bank. it is true, in the collection of those taxes, the farmer did not obtain the same indulgence which the merchant receives in paying duties. but what obliges congress to give credit at all? could it not demand prompt payment of the duties? and in fact does it not so demand in many instances? whether credit is given or not, is a matter merely of discretion. if it be a facility to mercantile operations (as i presume it is) it ought to be granted. but i deny the right to ingraft upon it a bank, which you would not otherwise have the power to erect. you cannot create the necessity of a bank, and then plead that necessity for its establishment. in the administration of the finances, the bank acts simply as a payer and receiver. the secretary of the treasury has money in new york and wants it in charleston; the bank will furnish him with a check, or bill, to make the remittance, which any merchant would do just as well. i will now proceed to show by fact, actual experience, not theoretic reasoning, but by the records themselves of the treasury, that the operations of that department may be as well conducted without as with this bank. the delusion has consisted in the use of certain high-sounding phrases, dexterously used on the occasion. "the collection of the revenue"--"the administration of the finance"--"the conducting the fiscal affairs of the government," the usual language of the advocates of the bank, extort express assent, or awe into acquiescence, without inquiry or examination into its necessity. about the commencement of this year there appears, by the report of the secretary of the treasury of the th of january, to have been a little upwards of two millions four hundred thousand dollars in the treasury of the united states; and more than one-third of this whole sum was in the vaults of local banks. in several instances, where an opportunity existed of selecting the bank, a preference has been given to the state bank, or at least a portion of the deposits has been made with it. in new york, for example, there was deposited with the manhattan bank $ , , although a branch bank is in that city. in this district, $ , were deposited with the bank of columbia, although here also is a branch bank, and yet the state banks are utterly unsafe to be trusted! if the money, after the bonds are collected, is thus placed with these banks, i presume there can be no difficulty in placing the bonds themselves there, if they must be deposited with some bank for collection, which i deny. again, one of the most important and complicated branches of the treasury department is the management of our landed system. the sales have some years amounted to upwards of half a million of dollars, are generally made upon credit, and yet no bank whatever is made use of to facilitate the collection. after it is made, the amount in some instances has been deposited with banks, and according to the secretary's report, which i have before adverted to, the amount so deposited was in january upwards of three hundred thousand dollars, not one cent of which was in the vaults of the bank of the united states, or in any of its branches, but in the bank of pennsylvania, its branch at pittsburg, the marietta bank, and the kentucky bank. upon the point of responsibility, i cannot subscribe to the opinion of the secretary of the treasury, if it is meant that the ability to pay the amount of any deposits which the government may make under any exigency, is greater than that of the state banks; that the accountability of a ramified institution, whose affairs are managed by a single head, responsible for all its members, is more simple than that of a number of independent and unconnected establishments, i shall not deny; but, with regard to safety, i am strongly inclined to think it is on the side of the local banks. the corruption or misconduct of the parent, or any of its branches, may bankrupt or destroy the whole system, and the loss of the government in that event will be of the deposits made with each; whereas in the failure of one state bank the loss will be confined to the deposit in the vaults of that bank. it is said to have been a part of burr's plan to seize on the branch bank at new orleans. at that period large sums, imported from la vera cruz, are alleged to have been deposited with it, and if the traitor had accomplished his design, the bank of the united states, if not actually bankrupt, might have been constrained to stop payment. it is urged by the gentleman from massachusetts, (mr. lloyd,) that as this nation progresses in commerce, wealth, and population, new energies will be unfolded, new wants and exigencies will arise, and hence he infers that powers must be implied from the constitution. but, sir, the question is, shall we stretch the instrument to embrace cases not fairly within its scope, or shall we resort to that remedy, by amendment, which the constitution prescribes? gentlemen contend that the construction which they give to the constitution has been acquiesced in by all parties, and under all administrations; and they rely particularly on an act which passed in , for extending a branch to new orleans, and another act, of , for punishing those who should forge or utter forged paper of the bank. with regard to the first law, passed no doubt upon the recommendation of the treasury department, i would remark, that it was the extension of a branch to a territory, over which congress possesses power of legislation almost uncontrolled, and where, without any constitutional impediment, charters of incorporation may be granted. as to the other act, it was passed no less for the benefit of the community than the bank--to protect the ignorant and unwary from counterfeit paper, purporting to have been emitted by the bank. when gentlemen are claiming the advantage supposed to be deducible from acquiescence, let me inquire what they would have had those to have done who believed the establishment of the bank an encroachment upon state rights? were they to have resisted, and how? by force? upon the change of parties, in , it must be well recollected that the greatest calamities were predicted as consequences of that event. intentions were ascribed to the new occupants of power of violating the public faith and prostrating national credit. under such circumstances, that they should act with great circumspection was quite natural. they saw in full operation a bank, chartered by a congress who had as much right to judge of their constitutional powers as their successors. had they revoked the law which gave it existence, the institution would, in all probability, have continued to transact business notwithstanding. the judiciary would have been appealed to; and, from the known opinions and predilections of the judges then composing it, they would have pronounced the act of incorporation, as in the nature of a contract, beyond the repealing power of any succeeding legislature. and, sir, what a scene of confusion would such a state of things have presented--an act of congress, which was law in the statute book, and a nullity on the judicial records! was it not wisest to wait the natural dissolution of the corporation, rather than accelerate that event by a repealing law involving so many delicate considerations? when gentlemen attempt to carry this measure, upon the ground of acquiescence or precedent, do they forget that we are not in westminster hall? in courts of justice, the utility of uniformity of decision exacts of the judge a conformity to the adjudication of his predecessor. in the interpretation and administration of the law, this practice is wise and proper; and without it, every thing depending upon the caprice of the judge, we should have no security for our dearest rights. it is far otherwise when applied to the source of legislation. here no rule exists but the constitution; and to legislate upon the ground merely that our predecessors thought themselves authorized, under similar circumstances, to legislate, is to sanctify error and perpetuate usurpation. but if we are to be subjected to the trammels of precedents, i claim, on the other hand, the benefit of the restrictions under which the intelligent judge cautiously receives them. it is an established rule, that to give to a previous adjudication any effect, the mind of the judge who pronounced must have been awakened to the subject, and it must have been a deliberate opinion formed after full argument. in technical language, it must not have been _sub silentio_. now, the acts of and , relied upon as pledges for the re-chartering this company, passed not only without any discussions whatever, of the constitutional power of congress to establish a bank, but i venture to say, without a single member having had his attention drawn to this question. i had the honor of a seat in the senate when the latter law passed; probably voted for it; and i declare, with the utmost sincerity, that i never once thought of that point; and i appeal confidently to every honorable member who was then present to say if that was not his situation. this doctrine of precedents, applied to the legislature, appears to me to be fraught with the most mischievous consequences. the great advantage of our system of government over all others is, that we have a written constitution defining its limits and prescribing its authorities; and that, however for a time faction may convulse the nation, and passion and party prejudice sway its functionaries, the season of reflection will recur, when calmly retracing their deeds, and all aberrations from fundamental principle will be corrected. but once substitute practice for principle, the expositions of the constitution for the text of the constitution, and in vain shall we look for the instrument in the instrument itself. it will be as diffused and intangible as the pretended constitution of england; and it must be sought for in the statute book, in the fugitive journals of congress, and in reports of the secretary of the treasury. what would be our condition if we were to take the interpretations given to that sacred book, which is or ought to be the criterion of our faith, for the book itself? we should find the holy bible buried beneath the interpretations, glosses, and comments of councils, synods, and learned divines, which have produced swarms of intolerant and furious sects, partaking less of the mildness and meekness of their origin than of a vindictive spirit of hostility towards each other. they ought to afford us a solemn warning to make that constitution, which we have sworn to support, our invariable guide. i conceive, then, sir, that we are not empowered by the constitution nor bound by any practice under it, to renew the charter of this bank and i might here rest the argument. but, as there are strong objections to the renewal upon the score of expediency, and as the distresses which will attend the dissolution of the bank have been greatly exaggerated, i will ask your indulgence for a few moments longer. that some temporary inconvenience will arise, i shall not deny; but most groundlessly have the recent failures in new york been attributed to the discontinuance of this bank. as well might you ascribe to that cause the failures of amsterdam and hamburg, of london and liverpool. the embarrassments of commerce, the sequestration in france, the danish captures--in fine, the belligerent edicts, are the obvious sources of these failures. their immediate cause is the return of bills upon london, drawn upon the faith of unproductive or unprofitable shipments. yes, sir, the protests of the notaries of london, not those of new york, have occasioned these bankruptcies. the power of a nation is said to consist in the sword and the purse. perhaps, at last, all power is resolvable into that of the purse, for with it you may command almost every thing else. the specie circulation of the united states is estimated by some calculators at ten millions of dollars; and if it be no more, one moiety is in the vaults of this bank. may not the time arrive when the concentration of such a vast portion of the circulating medium of the country in the hands of any corporation will be dangerous to our liberties? by whom is this immense power wielded? by a body who, in derogation of the great principle of all our institutions, responsibility to the people, is amenable only to a few stockholders, and they chiefly foreigners. suppose an attempt to subvert this government, would not the traitor first aim, by force or corruption, to acquire the treasure of this company? look at it in another aspect. seven-tenths of its capital are in the hands of foreigners, and these foreigners chiefly english subjects. we are possibly upon the eve of a rupture with that nation. should such an event occur, do you apprehend that the english premier would experience any difficulty in obtaining the entire control of this institution? republics, above all other nations, ought most studiously to guard against foreign influence. all history proves that the internal dissensions excited by foreign intrigue have produced the downfall of almost every free government that has hitherto existed; and yet gentlemen contend that we are benefited by the possession of this foreign capital. if we could have its use, without its attending abuse, i should be gratified also. but it is in vain to expect the one without the other. wealth is power, and under whatsoever form it exists, its proprietor, whether he lives on this or the other side of the atlantic, will have a proportionate influence. it is argued, that our possession of this english capital gives us a certain influence over the british government. if this reasoning be sound, we had better revoke the interdiction as to aliens holding land, and invite foreigners to engross the whole property, real and personal, of the country. we had better at once exchange the condition of independent proprietors for that of stewards. we should then be able to govern foreign nations, according to the arguments of gentlemen on the other side. but let us put aside this theory, and appeal to the decisions of experience. go to the other side of the atlantic, and see what has been achieved for us there by englishmen holding seven-tenths of the capital of this bank. has it released from galling and ignominious bondage one solitary american seaman, bleeding under british oppression? did it prevent the unmanly attack upon the chesapeake? did it arrest the promulgation, or has it abrogated the orders in council--those orders which have given birth to a new era in commerce? in spite of all its boasted effects, are not the two nations brought to the very brink of war? are we quite sure that, on this side of the water, it has had no effect favorable to british interests. it has often been stated, and, although i do not know that it is susceptible of strict proof, i believe it to be a fact, that this bank exercised its influence in support of jay's treaty; and may it not have contributed to blunt the public sentiment, or paralyze the efforts of this nation against british aggression? the duke of northumberland is said to be the most considerable stockholder in the bank of the united states. a late lord chancellor of england, besides other noblemen, was a large stockholder. suppose the prince of essling, the duke of cadore, and other french dignitaries owned seven-eighths of the capital of this bank, should we witness the same exertions (i allude not to any made in the senate) to recharter it? so far from it, would not the danger of french influence be resounded throughout the nation? i shall give my most hearty assent to the motion for striking out the first section of the bill. mr. pope.--mr. president, in rising on this occasion, i never more entirely obeyed both my feelings and my judgment. the principle involved in the decision about to be given, is in my view of more magnitude than any which has been presented for our consideration since i had the honor of a seat here. it is no less than whether we shall surrender to the state governments the power of collecting our revenue and rely upon the old system of requisitions. we are called upon to return to that state of imbecility and chaos from which this political fabric was reared by the wisdom and patriotism of the first statesmen of which any age or nation can boast. for twenty years we have collected our revenue, borrowed money, paid our debts, and managed our fiscal concerns through the agency of a national bank. that it has answered the most sanguine expectations of its authors; that it has been well managed, is admitted by the most decided opponents to the renewal of the charter. although in public debate, in newspapers, court-yards, muster-fields, &c., we have heard much of dangerous powers, violations of the constitution, british influence, and poisonous vipers, &c., &c., which were to sting to death the liberties of the people, yet we find ourselves as free almost as the air we breathe, and hardly subservient to the mildest code of laws by which any nation was ever governed. in the city of philadelphia, and the state of pennsylvania generally, where these animals called banks have grown to the most enormous size, we find as sound morals, and as much real practical republicanism, as in those parts of the union where the rattling of this viper's tail has never been heard, and in point of solid wealth and internal improvements, mark the contrast. we are required to disregard the lessons of that best teacher, experience, and to try some new scheme. however captivating new theories and abstract propositions were a few years since, i believe the thinking men of all parties in the nation are perfectly convinced that one ounce of experience and common matter-of-fact sense is worth more for the purposes of legislation than a ship-load of theory and speculation. we are told that we must force into the vaults of the bank a large portion of the circulating medium, and thereby depress the price of every thing in the market; we must give a shock to credit of every kind, check and embarrass every branch of agricultural, commercial, and manufacturing industry; give up the young mechanics, manufacturers, and merchants with small capitals a prey to the cupidity of moneyed men, who will be tempted to withdraw their funds from trade to speculate on the wrecks of the unfortunate. this is not mere matter of calculation. i only state facts proved to us by the most unquestionable evidence. we are not only, sir, to ruin many innocent and unoffending individuals, but to derange the national finances; and for what is all this to be done? to promote the public good or advance the national prosperity? no, sir, it is not pretended. we are gravely told, that we, the representatives of the people, must sacrifice the people to save the constitution of the people, whose happiness and welfare it was intended to secure. if this be true, it is indeed a strange government under which we live. i advance the opinion with confidence, that no principle which, in its practical effects, outrages the common sense and feelings of mankind, can be a sound one, and we ought to examine it well, and hesitate much before we give our assent. to bring distress on the country, not to prevent a violation of any positive provision of the constitution; but to correct what we suppose to have been an erroneous construction of it by our predecessors, of which neither the states nor the people have ever complained, appears to be more nice than wise. disguise this question as you will, sir, and still it will clearly appear to be a contest between a few importing states and the people of the united states. resolutions have been already laid on our table by gentlemen from the two large states; from which instructions have been received in substance, requiring congress to give up to the state banks the collection of the national revenue. i am, mr. president, on the side of the people of the united states. this is indeed a question of party, but of a very different character from that which will be attempted to be palmed on the people. it is a contest between the friends and enemies of the federal constitution revived; for, if i am not mistaken, the power of laying and collecting imposts and duties was strongly objected to by some of the large states having advantageous seaports, before the constitution was adopted. i am for preserving both the states and the union. i consider the safety and independence of the several states, and the liberties of the people, inseparably connected with and dependent on the efficiency of the national government, and it is to me unaccountable that gentlemen in favor of strong measures against foreign nations should be so solicitous to strip the general government of this very essential part of its power. we were told, a few days since, that our army was so insignificant and contemptible, that it would require a constable, with a search warrant, to find it. i have heard another gentleman of very high standing suggest the propriety of retroceding the ten miles square to the states of virginia and maryland. our gunboats are almost rotten. we have not more frigates and other armed vessels than sufficient to carry our ministers and diplomatic despatches to foreign courts, and if we yield to the states the collection of our revenue, what will remain of the federal government with which the people can identify their feelings or affections? in what will this government consist? it will be a mere creature of the imagination--a political fiction. and, analogous to the fiction in the action of ejectment, we shall have to suppose its existence, and then bottom our proceedings upon that supposition. if i was hostile to our federal union, or wanted to prepare the public mind for a surrender of this happy system of government, i would join in the hue and cry against this institution; i would support every measure calculated to destroy all confidence in and respect for this government, both at home and abroad; i would endeavor to produce throughout the country, confusion and disorder, and a state of glorious uncertainty; then persuade the people to seek security and tranquillity under some other form of government. the transition from a wild, factious democracy, to despotism, is often easy, and generally sudden. the extremes are very nearly allied. a republican government, guided by the virtue and intelligence of a nation, is the first of human blessings, but when directed by the angry, vindictive passions of party, the worst of which the imagination can conceive. a republic, to be durable, must inspire confidence and respect. such instability, such variable, unsettled policy as now appears to be the order of the day, could not have been anticipated by any man blessed with a tolerable degree of faith in the success of this great republican experiment. mr. president, i have ever been opposed to yielding to the commercial interest an undue influence in this government, but i am unwilling to make an unnecessary and wanton attack upon them. coming from an agricultural state, i am not disposed to increase the jealousies which unfortunately exist, and thereby weaken the ties by which these states are held together. i am sensible, too, how much the prosperity of the state i represent depends on a prosperous state of trade, and although the shock from the dissolution of this bank will be first felt in the commercial cities, it must immediately react to the extremes of the empire. i know many are under an impression that federalists and british agents are to be the victims; but very different will be the result. i refer to the evidence detailed by the honorable gentleman from massachusetts, (mr. lloyd.) but is it possible that an intolerant spirit of party has prepared us for this? are gentlemen ready to injure their country, weaken our federal union, the sheet-anchor of our political safety, to reach their political opponents? i will not believe it. when i see around me some of the soldiers of the revolution, actuated i am sure by nobler views; when i see the professors of a religion which teaches us to love our neighbors as ourselves, i cannot persuade myself that christian charity, and all the noble, generous feelings of the human heart, are extinguished by this demon, party spirit. if there be a man in the nation who can witness with unfeeling apathy the distresses of his fellow-citizens, he would have figured in smithfield in the bloody reign of queen mary of england, in binding heretics to the stake; or in the sanguinary time of robespierre, in adding victims to the guillotine; but he is unworthy the blessings of a free government. sir, i address the senate under circumstances discouraging indeed. i have been told, and on this floor, that debate is useless; that no man's opinion is to be changed; that i shall find verified in the decision of this question the sentiment contained in two lines of hudibras--"he that is convinced against his will, is of the same opinion still." i cannot admit this. i know there are gentlemen fully sensible of the evils about to befall their country, without any obstinate pride to conquer, who would rejoice at being convinced it is in their power to avert them. let me entreat them to pause and reflect, before they inflict a wound on their country's interest, under the influence of constitutional doubt; and if they err, i would ask them, would it not be more safe and patriotic to err in favor of the people? permit me now, sir, to redeem this subject from the constitutional difficulties with which it has been encumbered. to form a correct opinion, we must retrospect the defects of the old government, and ascertain the remedy which was anticipated in the present constitution. i believe it will be conceded that the great cause of the inefficiency of the former, was not because their principal field of legislation was too limited, but was owing to its dependence on the states for the means to carry their powers into effect. for the truth of this position, i appeal to the history of that day--to the candor of gentlemen who hear me. the present constitution was framed for national purposes, with ample authority to pass all laws necessary and proper for the attainment of its objects, independent of state authority, except so far as expressly made dependent by the constitution. the erroneous impressions with regard to this bank have arisen from ignorance of facts, relative to the practical fiscal operations of the government, and from confounding an original, independent power, to establish banks and corporations, with a necessary auxiliary to the execution of the powers given. by the constitution it is expressly declared, that congress shall have power to pass all laws necessary and proper to carry into effect the powers previously enumerated, and all other powers vested in the government of the united states, or any department or officer thereof. our power to create a bank is not derived by implication. no, sir. if this express delegation of power had not been inserted, we must have implied the authority to provide the means necessary and proper, &c. but the convention, with a full knowledge of the defects of the old confederation, and deeply impressed with the necessity of an efficient national government, determined to exclude all doubt by granting to the new government, in express and unequivocal language, ample authority to use all means necessary and proper for the attainment of the ends for which it was instituted. if a man was requested to look at the constitution and decide whether power is given to congress to create a bank, or corporations generally, he would answer in the negative. this would very naturally be the answer of most men upon the first blush of the constitution. it is not pretended that congress have power to create corporations as an independent proposition. the authority to establish a bank or corporations is only contended for so far as it can be fairly considered as a necessary and proper auxiliary to the execution of the powers granted by the constitution. the question of constitutionality depends upon facts, dehors the instrument, of which we must be informed before we decide, and which could not be ascertained before the attempt was made to give motion and energy to this political machinery. if the fact be ascertained, by the best evidence the nature of the subject affords, that a bank is necessary and proper to effectuate the legitimate powers of government, then our power is express, and we need not resort to implication. to prove to the satisfaction of the senate and the world, this material fact, will be my business before i request their assent to the position assumed, that congress have an express power to incorporate a bank. to do this it is indispensable that we should understand the practical financial concerns of the government, or have the information of those who do. we appropriate money for fortifications on the report of our engineer, colonel williams, and for the capitol, &c., upon the report of mr. latrobe. to know how much timber or other materials are necessary for a ship or a house, you must understand the subject yourself, or have the information of those who do. for myself, i am ready to admit that i rely much upon the information and experience of others. to ignorant men, and those who do not profess to be fully acquainted with the nature and management of the national finances, the following evidence is presented. the first, and with many, perhaps the best, not heretofore particularly noticed, which i shall offer, is the congress of , which established a national bank, called the bank of north america, during our revolutionary struggle, the utility and necessity of which were ascertained by the experience of that day. it is worthy of remark, that they created a bank under powers much more limited than ours. that act was not passed precipitately, but was the result of the most mature and deliberate consideration. i beg leave to read the preamble of the law which contains the opinions of that congress with regard to the utility and necessity of a national bank. "whereas congress, on the th day of may last, did, from a conviction of the support which the finances of the united states would receive from the establishment of a national bank, approve a plan for such an institution, submitted to their consideration by robert morris, esq., and now lodged among the archives of congress, and did engage to promote the same by the most effectual means; and whereas the subscription thereto is now filled, from an expectation of a charter of incorporation from congress, the directors and president are appointed, and application has been made to congress by the said president and directors, for an act of incorporation: and whereas the exigencies of the united states render it indispensably necessary that such an act be immediately passed--be it therefore ordained," &c. this act passed on the st day of december, . and here permit me to observe, that this national bank, styled the bank of north america, was not produced by british influence or party spirit. no, sir, the little, slandering, intriguing partyism of the present moment was unknown to the patriots of that awful period. they had no party but their country--liberty and independence were their objects. their souls were fired with a noble, a generous enthusiasm, on which heaven looked down with pleasure. it appears from the journals of the congress of , that the members from every state were unanimous in favor of a national bank, except massachusetts, pennsylvania, and virginia--the two members from massachusetts voted against it, the two members from pennsylvania were divided--of the four from virginia, mr. madison alone voted against it. here it is evident that, in the very infancy of our republic, before indeed it could with propriety be said to be born, when every bosom glowed with enthusiasm for liberty and a pure disinterested patriotism, a national bank was not thought that dangerous, dreadful monster, which the very wise and exclusive patriots of are endeavoring to represent it to the american people. and the construction given to the grant of powers in the articles of confederation by the congress of , is strong evidence of our right to establish a bank under a grant of powers much more ample, and with money concerns vastly more extensive and complicated. the next evidence i shall adduce for the consideration of the senate, is the opinion of the late general hamilton, appointed by president washington, the first secretary of the treasury; whose province and duty it was to superintend the national finances. his attention was therefore particularly directed to the subject, and, in a very able report to the first congress, assembled under the new constitution, he recommended a national bank. although opinions have been imputed to this gentleman very foreign to my feelings and notions about government, yet he has ever been acknowledged, by the candid and liberal of all parties, one of the first american statesmen. for reasons, which it is unnecessary for me to assign, i will not press his opinion upon the attention of the senate, but will introduce other and perhaps less exceptionable testimony. the congress of , which incorporated the present bank, merits the highest regard. it was composed of the most enlightened and distinguished men in america, many of whom had been members of the convention, and were fully apprised of the defects of the old and the objects of the new government. a large majority of both branches voted in favor of the bank. they were not divided on the question by party. many who have continued with the republican party under every administration voted in favor of this bank. although different speculative or abstract political opinions were then entertained, yet the spirit and passion of party had not diffused itself so generally through the nation as at a subsequent period. the next authority in favor of this bank, and one which must at all times and on all occasions command the highest respect, is no less than our immortal washington. he was president of the united states in , when this bank law passed. after it had received the sanction of both branches of the legislature, with that circumspection and prudence which regulated his conduct through life, he consulted the able men who composed his cabinet council on the constitutional question; they differed in opinion; he heard their arguments for and against the measure; and, after full consideration, approved the law. i cannot yet, sir, take leave of this very important testimony in favor of the bank. the opinion of our washington has the strongest claim to our confidence. let us pause before we disregard his solemn advice. this is the hero who led our armies to victory; this is the washington, who, at the close of our revolutionary war, disbanded a disciplined army in the bosom of the republic, and voluntarily exchanged the splendid robes and ensigns of military power for the plain, humble garb of a private citizen. this washington, who continued an american, a republican in heart and in sentiment, until summoned to the mansions of bliss; yes, sir, this illustrious departed hero, this practical statesman, has solemnly declared to the american people that a national bank is a necessary and proper auxiliary to the execution of the national powers. the last authority i shall particularly notice in support of this institution, is the opinion of the present secretary of the treasury, mr. gallatin. if this gentleman cannot boast of the military laurels which have adorned the brows of the patriots i have mentioned; as a statesman and faithful public servant, he stands inferior to none. mr. gallatin, from his first appearance on the theatre of public life, has been considered by all parties an able financier. at a very early period the finances of the united states became the subject of his particular attention and inquiry; the result of which was a treatise, published in , called "gallatin, on the finances of the united states," in which he gives a decided opinion in favor of this bank. i rely much on his opinion at that period, because it must have been the result of conviction, and not of any party feeling or consideration, as he was then in the minority, and continued in it until the administration changed. his report to the senate during the last session of mr. jefferson's administration, and his letter to the committee, show, that time and experience, so far from changing, have confirmed him in the opinion he first formed on the subject; to which i might add every administration and almost every man practically acquainted with our money concerns. is not this mass of evidence sufficient to substantiate the facts upon the existence or non-existence of which the constitutionality of this measure depends? i put the question to the candor and good sense of gentlemen, whether they are not satisfied, in the language of the constitution, that a national bank is necessary and proper to effectuate the legitimate powers of the national government? if they answer in the negative, i can only say, he who will neither regard the suggestions of experience, nor believe the report of the great political disciples who have gone before us, would not believe though one were to rise from the dead. and what is the answer to all this out of doors? why, that we are not to be governed by the information or opinion of others, however well acquainted with the subject; we are so self-sufficient as to disregard the best lights which can be presented to us. the cry is up to the hub, down with the bank, huzza for the party! so long, mr. president, as i shall be honored with a seat in the senate of the union, i am determined to respect my station and my own feelings and character too much to be driven along by any such idle, ridiculous clamor. as i heard much said about absolute, indispensable necessity, i may be pardoned for giving what i consider the sound interpretation of the words "necessary and proper" in the constitution. this idea of absolute, indispensable, &c., must have originated in an excessive jealousy of power or a decided hostility to the federal union. this instrument was framed by and for the people of the united states, and, in the language used, was certainly intended to be understood in that sense in which it is used and understood by them generally. if you ask a plain man what are the necessaries of life, he will answer, something below luxury and extravagance, what is calculated to afford him reasonable comfort. neither a house nor a bed is absolutely or indispensably necessary to a man's existence; he could live in a camp and sleep on boards, or on the ground, yet, the common sense of mankind would respond, they are necessary and proper. if a man had a journey to make, either to richmond, in virginia, or lexington, in kentucky, although every person would pronounce a coach and six superfluous and unnecessary, all reasonable men would say, he ought to have a horse or a hack, but it will not be pretended that either are indispensable, because he could perform it on foot. if a gentleman from baltimore gives his agent instructions to provide every thing necessary for an east india voyage, what would he expect? certainly that he should avoid unnecessary expense, but would consider him acting within the pale of his authority if he procured only what was reasonably necessary and proper, or, in other words, what was fairly suited to the master and crew, and well calculated to enable the vessel to reach her port of destination. that interpretation is correct which best accords with the common sense and understanding of mankind. it must, therefore, be evident that the only question as regards the constitutionality of the measure to be decided is a question of fact, and that is, whether a national bank is reasonably necessary and proper, or fairly suited to, and calculated for, the collection of our revenue and the management of our money concerns. and this fact appears to be admitted by the gentlemen opposed to the bill, for their arguments are predicated upon the probability that the state banks will answer the national purposes. this is a complete surrender of the constitutional objection; for, if banks be necessary and proper, it follows that we have a constitutional power to create them, and it will be a mere question of expediency whether we will use state banks or a national bank. my colleague (mr. clay) has asked for the congeniality between a bank and the collection of our revenue? the argument in favor of using state banks shows it, but let the use hitherto made of the bank answer the question. is not a bank a proper place for the deposit and safe-keeping of money--more so than the custom-house? is it not a convenient agent for paying and receiving money? through the agency of this bank our revenue, or the greater part of it, has been collected, our financial transactions done, and public money transmitted to such places as the necessities of the government required. the revenue collected at boston, baltimore, or any other port, is paid, if required, at new orleans, natchez, st. louis, or any other place without risk or expense. the money in the bank and its branches is payable at such of them as the convenience of the government may require, and, by this arrangement, we can command the whole of the public money in any quarter of the union without risk or expense. the operations of this institution have been confined to the seaboard. the principal bank is at philadelphia, with a branch at new york, boston, baltimore, washington, norfolk, charleston, savannah, and new orleans. at all which places, the government has considerable revenue to collect. no branches have been extended into the interior. it has been connected with our fiscal arrangements at all the places to which it has been extended, and may be fairly deemed a convenient, necessary, and appropriate auxiliary to the management of the national concerns. it is said that the revenue is collected at many ports where none of these branches are placed. this is true; the bank and branches are fixed only at the principal seaports, where a large amount of revenue is collected. every one draws into its vaults, subject to the demands of government, the revenue collected at the less important ports in the same quarter of the country. boston being the commercial emporium of new england, the government, by the agency of the branch bank there, is enabled to draw to that point most of the revenue received at the numerous ports in that quarter of the union. the repeated sanctions this bank has received from the different administrations, and especially from mr. jefferson and the republican party, by authorizing the extension of a branch to new orleans, and selling one million of the stock, the property of the united states, to british subjects, for four hundred thousand dollars more than the nominal amount, is indeed strangely accounted for; gentlemen say the government were bound to fulfil their engagements, and that the charter, being in the nature of a contract, was sacred. i had thought the fashionable doctrine was, that an unconstitutional law was wholly null and void. it has been held by some of the states. however plausible the answer to the argument of acquiescence, it furnishes no apology for a positive confirmation. permit me to assimilate a common case between individuals to the case before us: a man in washington executes a joint power to five trustees in kentucky to collect his debts, settle his land business, &c., and authorizes them to take all steps necessary and proper to effectuate the trust or power; in the progress of the business a measure is suggested as necessary, about which there is a diversity of opinion among the trustees. a majority, however, decide that it is within their authority; the principal is informed of it, does not complain or disavow, but positively and by the strongest implication assents to the construction given by his agents. in such a case there would be but one opinion. in a national bank is proposed to congress; they differ as to the constitutionality, a large majority decide in favor of it, the people and the states are informed of the measure, the states do not protest, nor do the people complain; many of the states pass laws to protect the institution, it receives the confirmation of three or four different administrations, and particularly of the one composed of men originally opposed to it; it violates no positive provision of the constitution; no mischiefs have been produced, but great convenience and advantage have been experienced by the government and community. i ask whether, under such circumstances, the question ought not to be considered settled? is no respect due to the opinions of our predecessors? is a question of construction never to be at rest? why is a judge, sworn to support the laws and constitution of the country, bound by a train of decisions contrary to his own opinions? because the good, the peace, the tranquillity of society require it. the conduct of a court, as well as every department of government, must be regulated in its course in some measure by a regard for the public weal. it is worthy of remark that, notwithstanding all the fuss about implied and incidental powers--if you except the sedition law, which was supposed to violate a positive provision of the constitution--the same practical construction has been given to this instrument by every administration of the government. indeed, the sphere of national legislation has been more enlarged under mr. jefferson's than any other administration. all parties have found that the national vessel could not be navigated without sails, rigging, and every thing necessary and proper. whence was derived a power to pass a law laying an embargo without limitation? there is nothing in the constitution about embargoes. whence did we derive a power to purchase louisiana, and incorporate it with the good old united states? there is no express delegation of power to purchase new territory. on these subjects the constitution is silent. i have approved both. no state can lay an embargo, or acquire new territory. our power to perform these acts results from the nature of the national sovereignty created by this constitution. the republican administrations have no pretensions to the approbation of the people on the ground of having restrained any latitude or liberality of construction. their claim to the public confidence is founded on very different considerations. they have repealed the internal taxes, paid a large part of the public debt, purchased louisiana, and preserved to the nation the blessings of peace. for these acts, they have, i believe, the thanks of the nation. they have mine, most sincerely. great stress is placed on the twelfth article of the amendments to the constitution, which declares the powers not delegated to the united states by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. i must confess that i cannot discover what influence this can have on the bill under consideration, or any other measure which may be proposed. it appears to me to have been adopted rather to quiet state jealousies and popular fears than with a view to produce any positive effect, for the inquiry must ever be, is the power given? and if granted, it is not retained. the supporters of this bill do not pretend to usurp any power retained by the states or the people, but contend that the power to pass the bill is expressly delegated, if the facts assumed are true. it is not pretended that our fiscal concerns can be managed with gold and silver. if our territory was of no greater extent than rhode island, delaware, or the city of philadelphia, gold and silver would answer the purposes of the government, but it would require a number of pack horses and wagons to transport the public money in gold and silver, over this immense country, to the different places where it is wanting. our extensive commerce, and the great extent of this empire, renders a paper medium necessary. is the power to create this paper medium, or national currency, an attribute of state or national sovereignty? i put the question to the candor of gentlemen, and solicit a serious answer! the argument of my honorable friend from georgia against the power of the states to authorize the emission of bank paper, founded on that part of the constitution which declares that "no state shall emit bills of credit," acquires great additional force, when these bills of credit are made to assume the character of money, for national purposes. in the same article the power to coin money is expressly prohibited to the states, and in the catalogue of cardinal powers granted to this government, is that to coin money. it will, perhaps, be contended that this only applies to gold and silver, but if that be admitted to be the literal meaning of the words, still it is evident that what shall be the national currency, whether specie or paper, is a proper subject of national legislation. no gentleman will be so absurd as to insist that any state or states ought to coin the current money of the united states. that the power of the states to establish banks may be questioned with at least great plausibility, is perfectly clear, but as this banking power has been so long exercised, as the national and state banks have conducted their operations very harmoniously, as no serious evils call for national interference, i am not for disturbing the existing state of things; it is better, perhaps, that the banking power should be divided between the states and the united states. that bank paper, if good, is in fact money, although not made a legal tender, cannot be denied. the currency of this bank paper of the united states, although made by law receivable in payment of revenue, rests upon a much better foundation than an act of congress. its national character, the extended operations of this bank from boston to new orleans, have given it credit with the people of every part of the empire, more than the bank paper of any particular state can be expected to have; so that, by common consent, this money coined by the national bank has become the current money of the united states. i hope we shall never be driven to the necessity of compelling our citizens by law to receive our paper. we should so guard and regulate our banking operations as to make the national paper at least equal to gold and silver, in every quarter of the union. if this bank is removed, the secretary of the treasury must nationalize the bank paper of the great importing states; for, i presume, congress will never decide what state paper shall be used by the officers of the general government. most of the public money is now collected and deposited in the bank of the united states; if that is destroyed, the secretary of the treasury is to deposit in the state banks, and with him is the power of selection--a power and patronage greater than any ever exercised by any officer in this nation. the deposits of the public money are sought after with great avidity, by all the state institutions. he can deposit the whole in one, or divide it between two, or three, or all the banks in any one place. he can change them at pleasure. he may, with great apparent fairness and propriety, make it a condition with every bank where deposits are made that they shall appoint a certain portion of the directors of his nomination, and through them he can reach the credit of any man who may have accommodations in it. it is true we have now a man at the head of the treasury who may not be disposed to abuse this power, but we may not always have such an officer. this immense power and influence may be exercised in an invisible manner, and, of course, without responsibility. is this republican? it was not a few years ago. i have always understood that one of the strongest and most popular objections to the federal administration was their disposition to increase executive patronage. although this subject has received much false coloring through the country, by charges of british influence, &c., i did not expect to hear it from an honorable senator of the united states--it has not indeed been positively asserted, but hinted in such a manner as to make an impression on the community. some stale circumstances connected with the british treaty have been very unnecessarily lugged in to increase the prejudices against this bill. it has been insinuated, that british influence, operating through this institution, has prevented the government from taking strong measures against great britain; but in what manner this has been effected, gentlemen have not been good enough to explain. did it prevent mr. jefferson from taking a war course? for i believe it is generally understood that he was opposed to a war. has it operated upon the present executive? such a suggestion will not be made. i have, during my service here, given a fair and faithful support to the administration, and i have certainly voted for stronger measures than they were willing to accept. it is due to the th and th congresses, who have been so much abused, to state that their course, as regards the question of peace or war, has been in perfect unison with the views of the late and present presidents. let it not be inferred that i am disposed to find fault; i believe when we consider the very extraordinary state of the foreign world, and retrospect the embarrassing circumstances which have surrounded us, the course pursued by them ought to be deemed substantially correct, certainly so as respects their leading object, which has been to avoid making this country a party in the present war. if i was disposed to censure, it would be for not making an effort to chastise some of the british armed vessels which lay in our waters after the affair of the chesapeake, in open contempt of the president's proclamation; if a single vessel had been driven out or compelled to strike her colors, it would have healed the wound inflicted on the national pride and feeling, committed by the leopard. that this government should have an influence with foreign governments proportioned to the interest their subjects have in our funds, is probable, but how this interest gives them an influence here i am at a loss to perceive: foreigners cannot even vote in the appointment of directors. if there is any reality in this idea of foreign influence through this institution, why did gentlemen permit the present stockholders to be incorporated into the bill introduced last year? and why was not a provision inserted to prevent foreigners from purchasing additional stock? gentlemen say the embarrassments in philadelphia could not have been occasioned by the bank of the united states, because they continue to discount as usual. if i recollect the evidence--and i hope to be corrected if i mistake it--it was this: that the calling in of ten per cent. on their debts occasioned such a pressure, that they were prevailed upon to extend their discounts until the ultimate decision of congress should be known. i have heard it seriously urged that the evils and inconveniences to be experienced from its dissolution, prove it to be a dangerous institution; the same argument would prove that the government ought to be destroyed. nothing, indeed, seems too absurd for the human mind to seize upon, when under the influence of passion or misguided zeal. my honorable friend from georgia has been reminded of the macedonian phalanx. i trust, sir, we shall ever be found associated with a phalanx american, republican, in heart and sentiment. i will not sacrifice the interest of my constituents for fear of being called hard names. the epithets of quidism, quadroonism, or any other ism which malice or policy may suggest, shall not drive me from the course called for by the public good. i am proud that i represent a people just, generous, and independent, not to be carried away by unmeaning clamor. before they discard a public servant, they will view him both on a political theatre, and in the walks of private life. they know, too well, that those are not always the best christians who sing hallelujahs on the house top, nor have they forgotten the celebrated sempronius, who, on the approach of cæsar, thundered war in the roman senate, and at the same time was secretly co-operating with the traitor to overthrow the liberties of the roman people. deeply impressed, mr. president, with the opinion, that the rejection of this bill will give at least a temporary check to the prosperity of the rising state from which i come, i shall give my negative to the motion to strike out the first section. yes, sir, not only the interest, but importance of that state in the union is about to be sacrificed. when i look beyond the mountains, and remember that kentucky has nurtured me almost from my cradle, that she has bestowed on me her choicest honors, my bosom is filled with emotions of gratitude, which impel me to say on this, as on all other occasions, kentucky i am only thine! saturday, february . _bank of the united states._ the senate resumed, as in committee of the whole, the bill to amend and continue in force an act, entitled "an act to incorporate the subscribers to the bank of the united states, passed on the th day of april, ;" the motion to strike out the first section being under consideration. mr. smith of maryland said, that in seconding the motion to strike out the first section of the bill, he had pursued a course which, in his opinion, was the most correct. when i first took a seat in congress (said he) the course of proceeding was to fix the principle by resolution, and, that once fixed, to send it to a committee to report a bill. by a motion to strike out the first section the principle will be tried, and the senate, if the motion fails, will go into a discussion of the provisions of the bill. this i conceive a better course, than, for the senate to go into discussion of the details of a subject which would probably be ultimately rejected on the general ground of principle. the gentleman who introduced this subject spoke with great animation and with great feeling against the press or presses which have undertaken to give their opinions upon this great and important question. he spoke with much warmth, and said that whoever knew him would not believe that he would permit himself to be driven out of his opinion by any man or set of men. there is no man, sir, the least acquainted with the gentleman from georgia (mr. crawford) but will believe his declaration. but another result may be apprehended, that those who feel so great an offence at the freedom the press has taken, may be driven into the opposite course by the irritation of their feelings. certainly those feelings must have been extremely strong with the gentleman from kentucky (mr. pope) to have induced him to terminate his speech with an oration hostile to the press. are the gentlemen from georgia and kentucky the only senators who have had their feelings wounded by the conduct of the press upon this subject? sir, if the gentleman's opinions and sentiments have been censured by one description of presses, he may find consolation in having been greatly eulogized in others. for more than a year those on the same side of this question with myself have had their opinions tortured into every shape to destroy them in the estimation of the people, not only in this session but during the last. sir, there are some presses in the union which could not exist, whose papers would not be read, but for the discussion of individual character. is any advantage to be derived from complaining of this? it results from the nature and temper of our government, and the best way i have ever found to treat it is with silent contempt. he who does otherwise engages in the contest at a great disadvantage, and will seldom come out the victor. in the same presses of which those gentlemen complain, i have seen them both eulogized, and properly, for their conduct on the subject of the embargo and west florida questions. if the press be an evil in this respect, we must submit to it; those gentlemen who take a high and prominent stand must expect to be noticed. sometimes gentlemen will be put down by the press, but their conduct being correct will more frequently be written up by its abuse. it has been objected that this question is discussed on the ground of party; and the gentleman from georgia, as i understood him, said, that this had been made a party question elsewhere, and might be so here. [mr. crawford said he had mentioned no place, but had said that this might be made a party question.] i understood the gentleman to say, said mr. s., that this may again be made a party question. but for this observation of the gentleman the subject of party would probably not have been introduced at all; and we must indeed shut our eyes or we cannot avoid seeing that this is made a party question, at least on one side. do you see one gentleman, one solitary gentleman of one party, discriminated generally as a federal, who does not vote for this measure throughout? do you see one public body in philadelphia or new york which has a majority of federal directors or agents, which has not come before you with memorials drawn up with the ingenuity of lawyers, to impose on your judgments? have not the same party prepared memorials and got the subscription of every one of their caste, bringing forward nearly the same number of petitioners as they have of federal voters? have they not done so in baltimore? of that city i would say as little as may be, for being a manufacturing as well as a commercial city, it has stirred up an animosity in some gentlemen against it not easily accounted for. in baltimore, on a warmly-contested election, the federal party mustered eight hundred and fourteen votes, all they could parade with their every exertion. to the petition for the renewal of the charter of the bank, there are eight hundred and forty odd signatures! they have gained some few since the latest contest. is this coincidence of members, this exclusively federal petitioning, no mark of party? they have also got one public body in baltimore to memorialize in favor of the bank; the rest were not to be intimidated by the threats of the bank of the united states. what, sir, have the other party done? have they disturbed the quiet of either house? have they brought forward the mass of their voters as signers to petitions? no, sir, they have trusted the subject to their representatives, confiding in their disposition and ability to speak their sentiments. the representation of new york, philadelphia, baltimore, norfolk, and charleston, in the other house, have opposed the renewal of the charter. every city high in estimation as a commercial city is opposed to the renewal of the charter, except boston. this speaks with a strong voice what are the feelings of the people; stronger evidence cannot be presented to the human mind. far be it from me, sir, to endeavor to work up the feelings of party spirit on this occasion; but the thing itself was one of the first causes which created the present parties, and separated man from man and brother from brother. this measure was originally brought forward and adopted when the representation in congress was not bottomed on an actual supposed census of the united states. sixty-five members composed congress then, which was a representation taken by accident. if a proportionate representation had been given to the states according to their population, the law probably would not have passed. the states of north carolina and south carolina had each five representatives, being thus placed on an exact equality. now, north carolina has twelve, south carolina only eight. what was the vote then? out of sixty-five members thirty-nine voted for the bill. it was not, as my friend from kentucky said, a subject fully discussed, or carried by a tremendous majority. the bank having been formed, it may not be improper for me to take some view of its beginning and its operation. at first its operations were confined to philadelphia; it extended its branches some time afterwards to boston, new york, baltimore and charleston. wherever it extended its influence, dissension commenced; wherever it placed its foot it became absolutely necessary for the states to erect another bank to counterbalance its pecuniary and political influence. in philadelphia it began to oppose certain people and turn down their paper. the state of pennsylvania, in defence of its own citizens, created the bank of pennsylvania. here was a check upon its pecuniary and political operations. i believe i am not mistaken when i say that soon after it commenced in boston a new bank was established there, from what cause i know not. in baltimore, sir, it soon taught us a lesson, and we met the lesson as other states had done. charleston and new york acted in a similar way. operating as the bank did on the politics of the country before its effects were neutralized by competition, man being man, place him where you will, those concerned in the direction of the bank felt power and exercised it. when the british treaty was pending before congress, the president and directors (as i am informed) themselves carried about a memorial to congress in its favor, with what view and with what effect may easily be conceived. in baltimore (until we were able to check them by other banks) its political influence was great. prior to the great struggle between the parties, in , they did permit one democrat to be within the walls of the sanctuary (as a director), a gentleman of as much respectability and independence of character, as any one of the direction. he was, however, (immediately after daring to give his vote in favor of a democratic candidate,) put out, and since that time no man of democratic principles has been permitted to enter its walls as a director. men must shut their eyes to the fact of this being a party institution, when they see that no democrat has been admitted to the direction of the bank but in this city and new york, where the collector was admitted a director for the purpose of protecting the public money at the instance (it is said) of the secretary of the treasury. can we shut our eyes so as not to see that men hostile to the democratic party, and of course to the success of the administration of the government, are not the most proper persons to have charge of its pecuniary concerns? i would have been very unwilling to have gone into this part of the subject; but when the gentleman from kentucky, scarcely able to restrain his rage, cried out, party! party! i was bound to show that it was not those with whom i act who had any agency in pressing the subject of party into the present discussion. the gentleman from kentucky reprobates the system of petty mischievous intrigue for the purpose of carrying measures through congress. no man, sir, despises or contemns such conduct more than i do. but on whose side has this intrigue been? it is necessary to put the saddle on the proper horse. have we gone to insurance companies or corporations of one kind or another? have we intrigued with the people to induce them to take sides with us? no, sir, we have been tranquil; we wanted no aid of that kind. have we sent persons here to intrigue with members, or a deputy to remain here the whole of the last and present session, to explain to congress the effect of putting down the bank, and threaten them with destruction and ruin to the united states if they passed the measure? no, sir, we have had no one here. have we stirred up the people into town meetings to aid us by memorials? no such thing, sir. have we called meetings and induced honest mechanics to come here to influence congress by idle fears, impressed upon them by those who are interested, to tell a tale that shall answer our purposes? no, sir, we have pursued no such course. respectable merchants, i observe, form a part of the bank deputies--for what? to represent the late fall of the price of flour as a consequence of the danger of the bank charter not being renewed, and thereby to alarm the minds of members. i am sorry that men of such respectable character did permit themselves to come here on such an errand. i think i have seen in the papers, that one of the manufacturers (now here) on being asked to sign a petition for the renewal of the charter for twenty years, said he would rather cut off his right hand than sign it; he wished only a renewal for a short time to give the bank an opportunity to wind up its affairs. if this statement be true, and of its truth i have no cause to doubt, it shows the depth of that intrigue which sent this gentleman here, through the instrumentality of his excellent character, to get a renewal of the charter for a period which he never contemplated. these are intrigues for which men ought to blush, and from which, i thank god, we are exempt. at the time these deputies arrived, there were three mechanics of baltimore here, of character inferior to none, and of wealth inferior to few in philadelphia, and who would have given a different view of the subject, if they had been asked to appear before the committee. i thought it unnecessary--i wanted no assistance of that kind--no species of intrigue. they did, however, declare, sir, that granting this charter would be a death-blow to the politics of the state of maryland. they did believe the renewal would be injurious to them, for neither they nor many of the manufacturers of baltimore had received much advantage from the branch bank; they had their own banks from which they generally received accommodation. another species of intrigue is carried on, to wit, by pamphleteering. the press is groaning with pamphlets--for what? to teach the minds of members on this question, the necessity of renewal and probability of destruction to the nation, if their demands are not complied with. our tables are covered with pamphlets of that tendency. has there been any thing of the kind on our part? there is scarcely an evil which has not been attributed to the embargo, and which is not now, with as little justice, attributed to the expected non-renewal of the bank charter. great failures have lately taken place at new york; bills of exchange on london, to a large amount, have returned protested, and the drawers are not able to pay the holders, and to the present critical situation of the bank some gentlemen attribute the distress brought upon those who have suffered by these failures and protests. but, mr. president, what is the real cause of those failures? they are confined principally to new york, and may be attributed to the following causes: it is natural for men born in great britain to entertain predilections favorable to a commerce with that country, their connections, as well commercial as of family, are there; their credit is there; and, from those causes, the house which has failed, and carried so many others with it in its fall, has probably directed the principal part of its commerce to england; they have, no doubt, shipped cotton and tobacco, the trade in which being in a great measure confined to great britain, the natural consequence has been, that the markets of england were completely glutted; tobacco, except the very fine virginia, scarcely paid the charges of freight and commission, and the loss on cotton must have been nearly fifty per cent. the consignees, under those circumstances, refused to pay the bills drawn upon shipments of those articles. the bills returned protested, and ruin to the american shipper has been the consequence. at any other time the english merchants would have accepted the bills, and held the cargoes for a better market; but, at that time, ruin stared every man in the face. no man in london knew who to trust, and very few would enter into engagements which they saw any difficulty in meeting. no censure ought to be attached to the american shipper, for, by the usage of trade between the united states and europe, the american merchant is entitled to draw for two-thirds the amount of his cargo on transmitting invoices and bills of lading with orders for insurance. other causes have existed to cause the present distress in new york and elsewhere, to wit, the seizure, detention and confiscation of property in denmark, prussia, and france, of ships and cargoes to the amount of many millions, on the proceeds of which cargoes merchants calculated to meet their engagements at home, and to meet their bills drawn on london. for, sir, the merchants who make large shipments to the continent, order the greatest proportion of their proceeds to be remitted from thence to london, and, on the expectation thereof, draw bills on their friends there. disappointment has been the consequence of such seizures and losses; protests of such bills and ruin has followed. but, mr. president, we might with as much propriety attribute the late great failures in england and on the continent to the expected non-renewal of the bank charter, as those which have happened in new york, or the present distress of the merchants of the united states. the returns of the bills protested, to so large an amount, of course destroyed the merchant's credit at bank; he failed, and, by his fall, has caused the ruin of others. when a great house fails, it is like a game of nine pins; knock one down and it will probably carry with it four or five others. we have been told, mr. president, in case the charter should not be renewed, that we shall find in future great difficulty in obtaining loans. what loans, i ask, have government ever received from the bank of the united states? i recollect, when i first entered congress, that government were indebted for loans made from the bank, but i also recollect that the bank complained of her loans as an inconvenience, and that congress took the earliest measure in their power to pay them off, and have, since that period, made no new loan from the bank until that made payable the first of january last. i will not inquire whether even that loan was necessary, but i will venture to promise, sir, and will give any security that may be required, that the state banks will give a similar accommodation, to wit: if the secretary of the treasury will deposit with the state banks two millions five hundred thousand dollars of the public money, (the amount of the late loan,) they will lend government to the same amount, and thus do as the bank of the united states has done, _lend you your own money_, and very kindly receive from you an interest of six per cent. therefor. we are told that the bank has lately lessened the discounts of individuals ten per cent., and that the merchants are thereby greatly distressed. is that a fact? if it is, and great distress has ensued therefrom, what will be the distress of the merchants if the bill now before you shall pass; and if, agreeably to its provisions, congress should (at any time hereafter) call on the bank for the loan of four millions promised by the bill? if, sir, a lessening of their discounts one-tenth per cent. creates distress, what will be the consequence, when, by a loan of four millions, called for from the bank, the bank shall be compelled to lessen the discounts four-tenths? but, sir, the promise to lend four millions from a bank of ten millions is idle; it is worse, it is deception on the face of it. the loan, if made, would not be from the bank but from the merchants, whose discounts would thereby be lessened, and whose ruin would follow. we are told that, if the charter of this bank be not renewed, and the funds of the united states be deposited in the state banks, it will be extremely unsafe, because it is said we can have no control over them. and, i wish to know, sir, what control we have over the bank of the united states? none, but the same as we may have over the state banks. we cannot check the operations of the bank of the united states, and if they obtain this charter, they will know that they can have their charter renewed whenever they please; so that, the fear of a non-renewal of their charter will have no operation on them in future. you will have a much greater control over the state banks, because you are under no obligation to put money in them, and you can change them whenever you think proper; the danger of losing the public deposits will always be a sufficient control over their conduct. the security of the state banks is doubted, however; and we are told, very gravely, indeed, that there is much more security in the mother bank, and her nine children, than in ten independent banks. this i must deny. i should, as a merchant, place more confidence in ten independent houses than in one with nine branches. monday, february . _bank of the united states._ mr. brent said he had not the vanity to believe, after the subject had been so fully discussed, that he should be able to shed any new light on it; but having been instructed, by the legislature of the state which he had the honor to represent, to vote on constitutional principles against the bill under consideration, and as he was reduced to the painful necessity of going counter to those instructions, it seemed to him to be indispensably necessary that he should submit to the senate the grounds on which he acted. it is (said he) a most painful situation in which i stand in relation to the legislature of virginia, in being compelled to vote in opposition to their will, more especially as it is a prevalent opinion with many whose opinions are entitled to great respect, that instructions are obligatory on a senator. this question is one which has never been settled, or even fully deliberated on. instructions, when heretofore given to senators, have generally been in accordance with the sentiments of the senators, and only given to add the greater weight to their opinions. if called upon definitely to pronounce with regard to instructions on questions of expediency, i might be under some difficulty as to what course to pursue; because, although there is no clause in the constitution to that effect, i am under a strong impression that, according to the principles of our government, there is much reason to believe that the respective state legislatures should have such a right; but on a constitutional question (whatever may be the right of the state legislatures in other instances) the right of instruction may be denied, in my judgment--that is, so far as to be imperative on the senator. to give a vote in such a manner as in his estimation to inflict a vital wound on the constitution, is more than the legislature of virginia, or any other state legislature in the union, can compel me or any other senator in the united states to do. the resolution of virginia is bottomed, not on the ground of expediency, but on the principle that the constitution prohibited congress from granting the bank charter in the first instance; that it now prohibited it, and therefore, because it was unconstitutional, the legislature have instructed their senators in congress to oppose it. now, sir, although i shall not immediately and directly violate the constitution by voting against the bank, yet, if i vote against it when i believe it constitutional and necessary, it must be known that i vote in conformity to the instructions of the virginia legislature; and so far as my vote goes, it will warrant and sanction that interpretation of the constitution which the legislature of virginia has given--which interpretation, in conscience, i believe to be erroneous. therefore, though in ordinary cases the instructions of a legislature may be imperative, (i will not determine that question,) i conclude that they cannot be so when they require of a senator to commit either a positive or implied breach of the constitution, or to vote in such a manner as to warrant such interpretation of the constitution as will deprive it of an essential attribute. virginia has the physical force, but has she a moral right to violate the constitution of the united states? if she has it not, can she give it to her legislature? if her legislature possess it not, can they give it to a senator? can the legislature give me a moral right to violate the constitution of the united states, which i have sworn to support? i believe not, sir; and that, in the situation in which i stand, their instructions ought to have no operation on the vote i am to give on the subject under consideration. the first question, whether the general government, when it first came into operation, did not possess the power of creating a national bank, is the primary object of investigation. in objection to this it has been said, that to carry into effect an enumerated power is one thing, and the right to incorporate a bank is a distinct power. those who take this ground say that the creation of a national bank is an original, independent, and substantive power. it is not sufficient, say they, to show that it is a convenient instrument to carry into effect an enumerated power, because it is an independent authority of itself, and the genius of our government prohibits the derivation of any powers by implication with scrupulous limitation. it is true, sir, that our government, being an emanation from the existing state governments, the rational construction is, that all power not given away is retained to them or to the people. if that construction does not result, then a positive amendment, which has been made to the constitution, has infused this principle into it. i therefore admit in its fullest latitude the construction that all powers not given away are still retained; yet i still contend that even in a government like ours, there are some resulting powers. or by what right do we create a military school? we have a right to raise armies; but we can have an army without a military school. yet it is constitutional to create such an institution, because every given power implies rights inferior appertaining to the powers granted. we lay an embargo--is there any clause in the constitution authorizing us to lay embargoes? no, sir; we have a right to regulate trade, and we have a right to lay embargoes to protect it. we have a right to provide for arming and disciplining the militia. under this authority we build armories. is there any provision in the constitution directing it? we have erected forges and even purchased ore banks. these are inferior powers, necessarily resulting from the greater powers granted. but here gentlemen find the great difficulty. the creation of a corporation, say they, is an act of sovereignty; it cannot be used as a mean, because it is a sovereign act. why, mr. president, every law passed is _quoad hoc_ a sovereign act. a law incorporating a military school is as much an act of sovereignty, as to the particular subject to which it relates, as an act incorporating, a bank. we create a military school--for what purpose? because the sovereign authority has power to establish an army, and the power to create a military school is inseparably connected with and necessarily appertains to it. we establish a navy--we also establish a marine corps. there is no clause in the constitution giving that power, but we take it as inseparable from the power to create a navy, because the exercise of the greater implies every subordinate power necessarily connected with it. the great stumbling block, however, is, that this is one of those independent, original, and substantive powers, which cannot be given by implication. blackstone says, "municipal law, thus understood, is properly defined to be a rule of civil conduct, prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong." agreeably to this definition, every law passed by a deliberative body is an act of sovereignty as to the subject to which it relates. the establishment of a marine corps is as much an act of sovereignty as an act incorporating the bank of the united states. the only question is, whether it be necessarily incident to the enumerated powers given to the general government. those who criticise most accurately on the constitution and most unwillingly concede resulting powers, will admit them to a certain extent even in our government. the only question is the immediate and necessary connection of the means used with the object intended to be attained. in inquiring then, sir, whether or not, at the first promulgation of the constitution, when it came into existence, it was intended that congress should possess the power of incorporating the bank of the united states, let us inquire whether there was any possibility of carrying into effect with any tolerable convenience and advantage the several provisions of the constitution, unless this power exists. it is said that you do not possess the power, because it is attempted to be derived by different gentlemen from so many different parts of the constitution. now, mr. president, i have never before understood that a capacity to derive a title from several different sources gives you less title than if derived from one source alone. i derive the power from the whole context of the constitution, although gentlemen seem to think that the title is invalidated in proportion to the number of sections in the constitution from whence we derive it. in order to avoid confusion of argument in examining this question, i will derive it from only one source at present, though i believe others equally give it by a necessary construction. at the time the constitution came into existence, i believe there were but three banks in the united states; none south of philadelphia, and all of very limited capital. the constitution of the united states gives the power to levy and collect taxes. is it possible to imagine any system so convenient for the collection of this revenue, and sending it to the seat of government, as that of the agency of banks? i am not inquiring whether the state banks can do it; but i say that the framers of the constitution must have had under consideration the state of things at the time when the constitution came into existence. at that time there was not one bank south of philadelphia, and the banks which existed were very limited in their capital, and their paper had limited circulation. congress, in such a state of things, then, has the power of levying and collecting taxes conferred on it, and yet congress has not the power to create banks to aid in the collection of its taxes, notwithstanding a clause to make all laws necessary and proper for that purpose is contained in the constitution. no gentleman will say that the agency of banks is not necessary in some way or other in collecting the revenue. i admit without them you could have carried on our fiscal arrangements in an awkward and cumbrous form, but was that the intention of the constitution? when the power to collect taxes was given, it was intended to give all the means necessary to carry this power into execution. it was not to execute this power in a cumbrous form, but with the greatest facility with which the power is susceptible of being wielded. now, is it possible that the constitution contemplated that the revenue should be collected and transmitted here, subject to all the risks and accidents and inconveniences that attend the transportation of specie? it is impossible. but all this doubt has arisen from its being a separate and independent power, although it is no more of that character than any other law passed to execute the enumerated powers of congress. in a word, mr. president, it is admitted by all who have spoken on this question, whether for or against the bill under consideration, that the agency of a bank or of banks affords the greatest facility and security of any plan that can be devised for the collection of a revenue, and for its transmission to your treasury. it is admitted that no bank or banks of a capital or of sufficient circulating paper throughout the united states adequate to this object, did exist when the constitution was first formed, promulgated, or adopted. it is admitted that to levy and collect taxes is one of the enumerated powers of congress. it is admitted that congress has all power necessary and convenient to carry its enumerated powers into execution. it is admitted there is no express clause in the constitution prohibiting the establishment of a national bank. if these principles and facts are admitted, does it not demonstrate, beyond the possibility of doubt, this unquestionable result, to wit: that as congress is to levy and collect revenue; that as the agency of banks affords the most certain, speedy, and convenient means by which a revenue can be collected; that as neither, at the period when the constitution was made, promulgated, or adopted, banks of sufficient capital, or with paper of sufficient circulation, existed for the collection of the revenue, and its transmission to your treasury; that as there was no positive clause prohibiting a national bank in the constitution; that as congress was to have all power necessary to carry its enumerated powers into execution; that as the convention who framed, and the people who adopted the constitution, must have had in view our then existing institutions, and the then general state of society, it was the intention of the convention who formed the constitution, and the people who adopted it, to give to congress the power of establishing a national bank. if at the time of adopting the constitution it was necessary and proper that congress should possess it, for the exercise of any of its enumerated powers; if the foregoing result is undeniable, and i think it is, i would interrogate, if congress, on the adoption of the constitution, possessed a power to establish a national bank, what has since deprived that body of the power? i, mr. president, can discover nothing which has. one argument, much confided in by gentlemen who have opposed the present bill, is, not that banks are not necessary to the collection of the revenue, but that state banks will answer. in return, i insist that no state banks did exist when the constitution was first formed, therefore the power to create a national bank is necessarily given in the power to levy and collect taxes. to this it is replied that to create a national bank is to legislate by implication; it is a separate, substantive, and independent power; to levy a tax is one thing, to make a bank another. i answer, to levy a tax is one thing, to create an officer for its collection another. by this kind of chop-logic we may prove any thing unconstitutional. i ask, when you levy a tax, if you do not provide officers for collecting it. i levy a tax and create a bank through whose instrumentality i mean to collect it; from the same authority by which i appoint a collector, i have a right to create a bank through whose instrumentality i mean to receive and transmit it. there is no clause in the constitution saying you may appoint officers for the collection of the revenue specifically; but the right to appoint officers to collect revenue is derived from the power of levying a tax, from which also may be derived the power of establishing a bank, if it be the best mode of collecting the revenue. it is said you may collect this tax by means of the state banks. very well, sir, i say you may collect the revenue by means of state officers, and upon the principle that you cannot establish a bank to collect the revenue, because the state banks can collect it, i say that the state officers can collect our taxes, and if your argument is just, you cannot appoint any other officers. the constitution authorizes the president to appoint persons to fill all offices established by law, but says not a word about appointing officers to collect the tax you levy specifically. upon the construction gentlemen contend for, they might say, because no power is expressly given to appoint officers of the customs, or for your taxes, and it is possible to collect the revenue by the agency of the state governments, and nothing should be done by the united states authorities which can be done by the states, therefore these collectors of the customs or revenue should be such as are appointed by the states for state purposes. this kind of reasoning, sir, cannot be admissible, and is in hostility with a most manifest principle of the constitution, as it is evidently a prominent feature of that instrument that the general government should have within itself all those powers necessary and convenient for the execution of its enumerated trusts, entirely free and independent of the interference and agency of the states, their officers, or ministers. it is said that the corporation, which it is proposed to recharter, independent of the facility it affords to government in the collection of the revenue, has also particular advantages given to it; that it is a monopoly; and what right, it is asked, has congress to grant a monopoly? i will ask, in return, when an officer is appointed to collect the customs, has he not a salary and emoluments? is not every office in law called a franchise or a particular privilege? if the officer who has these emoluments, privileges, or franchises, (call them what you will) receives these in consideration for his services, have you not the power to hold out inducements to associated bodies of men to form an institution from which the public may derive benefit, not with a view exclusively to their monopoly and benefit but on account of the advantages to be derived from it by the public? the honorable gentleman from kentucky, (mr. clay,) with his usual ingenuity, spoke of the enormous evil and the danger to our liberties that is to be anticipated from giving the power to erect corporations, which he says is an original power, and has given being to institutions which have swelled to an enormous magnitude. the example of the east india company and the south sea company were spoken of in an alarming, impressive, and ingenious manner. but, i ask, sir, if the state governments do not possess this gigantic power? i see nothing to restrain them more than the general government. i see that the only supervisors as to the state governments are the people themselves, who are also the supervisors of congress, who have also the invidious jealous eyes of the state governments constantly upon them, as is illustrated in the conduct of some of the states on this very question, and who combined would guard this power from abuse by the general government much more than the people alone will guard against abuses by the states. it is a visionary mode of reasoning to argue against the possession of power from the abuse of it. the gentleman may as well tell us that we may raise armies to so monstrous an extent as to crush our liberties; and, therefore, we ought not on any emergency to raise an army. he may as well say the creation of a military school, which is as much and no more a resulting power than the one in question, is giving to congress a great substantive independent power to create a vast engine, under the name of a military school, which may swell to such an immense importance as to make it an instrument to swallow all the liberties of the country. so as respects sites for forts and armories, and ore banks, powers exercised by implication, the gentleman, from the unlimited indulgence he gives to a gloomy and foreboding imagination, may say, you may purchase the territorial rights of the states until you destroy their sovereignty. there is no end to the extent of such reasoning. we must rely in some degree on ourselves, on the vigilance of the state governments, and on the discretion of the people. when the whole body politic is so corrupt that there are no eyes on our rulers to see when they transcend the powers of the constitution, all is lost, and no paper reservations can save us. mr. president, i am ready to admit that where a measure obtains, that inflicts a violation on our constitution that is unquestionable, palpable, and notorious, however frequently and however solemnly this measure had been sanctioned, however long it had been submitted to and endured, would not be considerations with me of any importance or create one moment of doubt. error, however repeated and submitted to, is error still, and every occasion should be sought to get rid of it; but on an occasion in the origin of which the constitutional question was doubtful, when men of the purest integrity and most illumined intelligence might pause and differ and doubt, i should imagine that such case once acted on should never again be touched, unless considerations of irresistible importance lead to such a measure; and i imagine that every man of candor and intelligence who weighs with due deliberation the question under consideration, will at least admit, if the measure is not certainly constitutional, it is at least of that description of character i have last mentioned. in such an instance as this, will it be said that after this measure has been sanctioned by congress on full deliberation and debate; after the bill establishing this bank had received the approbation of the president, who reserved his signature to it till the last moment permitted by the constitution, and after he had viewed the question with all its bearings in every attitude it could be presented, after full consultation with his cabinet ministers and others of high intellectual character; after the law thus sanctioned by the legislature and the president has been acquiesced in and practised on for the space of twenty years, when it has been considered inviolable, and corroborating laws passed during the administration and legislation of different dominant political parties; when those laws have been sanctioned by the solemn adjudication of all our judges, both of the general and state governments; to suppose that all these considerations are to have no influence as to putting to rest a constitutional question which was doubtful in its origin, is to be skeptical and scrupulous beyond all reasonable bound. if congress had no right to incorporate a bank, was it not an act of usurpation in the president and congress to pass laws punishing individuals for the forgery of its paper? nay, more, mr. president, when we inflict death for the support of institutions congress had no right to create, and for the violation of laws the constitution prohibits that body from enacting--(and under the denomination of each of the political sects into which this country is divided, agreeable to the principles now contended for by gentlemen, such laws have been passed)--are not the executive which sanctions, the congress which passed, and the whole body of our judiciary, both of the general and state governments, which enforces such unconstitutional measures, and under their surreptitious authority inflicts death upon our citizens, worse than usurpers? are they not murderers? yes, mr. president, i reiterate, are they not murderers? and are we prepared to pronounce so heavy a denunciation on our predecessors, on ourselves, and the other great departments of our government? are we ready to inform the american people that this body and all their constituted authorities have sported with the lives and illegally shed the blood of our citizens? my colleague was foreman of the jury that pronounced sentence, or that found a verdict, on the famous or rather infamous logwood, for forgery of the paper of the bank of the united states. this verdict was confirmed by the judge of the court, and the criminal punished agreeably to the judgment. is a measure of such weighty and awful import, so solemnly and deliberately acted on and decided, and multifarious other decisions of the same description, to have no influence on the decision we are about to give respecting the constitutionality of establishing a national bank? if they are not, then gentlemen view the subject through a very different medium than that through which it is presented to my vision. then, in my judgment, mr. president, our situation is alarming indeed. to recapitulate: i derive the power to create a national bank, when this constitution came into existence, from the situation of society, and our legal institutions at that time, and the difficulty, as things existed, that the revenue could be collected with advantage in any other way than by the agency of a bank. if this reasoning be deemed erroneous, i insist that the constitutional power of congress to create a bank was in the first instance doubtful, and the principle having been recognized, and having received every sanction the government could give, and practised on for more than twenty years, is not now to be called in question. admitting that on both these points my views are erroneous; say that the establishment of the bank, at its commencement, was improper, still, if it be demonstrated that the existence or re-chartering of the bank is indispensable, or highly expedient at present, to the due exercise of enumerated rights of congress, that which was improper or even perhaps unconstitutional at first, because it was not necessary, becomes constitutional and proper, because now expedient or essential. congress is clothed by the constitution with a variety of delegated rights. now, admitting that the establishment of a bank in the first instance was not necessary for the due exercise of the legislative rights bestowed in any one of these enumerated powers, if our predecessors in office, by the creation of a bank, which at best was an improper institution, because not necessary, have placed our fiscal concerns in such a situation that it cannot be put down without great injury to the revenue, which congress is bound to levy; and collect, without injuring our commerce, without impairing our public credit, without lessening the public welfare, all of which congress is bound to provide for and protect; if this can be demonstrated to be the probable result of pulling down the bank at this period, i would ask whether that institution, which was improper at first, because not necessary, does not become proper, because almost indispensable at present? in construing the constitution of the united states, when legislating on the enumerated powers of congress, i lay down this rule of construction: that the only limitation to the power of congress is either some positive or implied prohibition in the constitution itself, or the exercise of an honest and sober discretion. if, therefore, there is any reason to believe, at the present period and existing state of things, that by putting down the bank your revenue will be greatly impaired, your commerce will be injured, the public credit lessened, all of which congress is to protect; does not such a state of things make it proper that the bank, which ought not to have been created, because not necessary, now ought to be continued because indispensable? it may here be said, that i am varying the constitution if i say that a thing is proper to-day which was not proper five and twenty years ago; that this vibration will always keep the constitution in an uncertain state. i say, no. my doctrine is subject to no such accusation; the principles of the constitution are uniform and unalterable. it is an uniform and unalterable principle, that congress have the power to lay and collect taxes; they have the same positive, unchangeable right to exercise all the enumerated powers, the only rule of construction relating to them being that the means you use have a necessary relation to the power on which you legislate. if the means be not enumerated, you exercise discretion as to the means, having a regard to the existing state of things when you legislate concerning them. the same means may be necessary and proper now, which would not have been twenty years ago. you change the means to attain the end, but the end itself, the enumerated power in the constitution, remains unchanged. as long as the constitution exists, you must select the means most proper for executing the enumerated rights at the precise moment at which you legislate respecting them. if this be the true construction of the constitution respecting the recharter of the bank, the question merely resolves itself into an inquiry how far such a measure is at present expedient. to determine at this moment whether or not it be constitutional, or in other words expedient, to incorporate the bank of the united states, i am to say whether, under existing circumstances, in the present state of society, situation of trade and revenue, the preservation and continuance of this institution is essentially necessary. if it be essentially necessary, we have a right to recharter the bank. i have been precise in stating this view of the subject, because it has not before been taken by any other gentleman. tuesday, february . the credentials of john condit, appointed a senator by the legislature of the state of new jersey, for the term of six years, commencing on the fourth day of march next; and of william b. giles, appointed a senator by the legislature of the state of virginia, for the term of six years, commencing on the fourth day of march next, were severally read, and ordered to lie on file. _bank of the united states._ the senate resumed, as in committee of the whole, the bill to amend and continue in force an act, entitled "an act to incorporate the subscribers to the bank of the united states," passed on the th day of february, . mr. taylor.--mr. president: although much time has been consumed in the discussion of the subject before us, and the ground completely occupied by those who have gone before me, yet the importance of the subject, the immense magnitude of the unhappy consequences likely to result to the nation from the rejection of the bill on your table, compel me to offer to it all the support in my power. indeed, sir, to this sense of duty to the nation is superadded a very sacred, and to me indispensable duty--my duty to the state which i have the honor in part to represent, as well as another duty, which from the course the debate has taken, is not to be disregarded; i mean, sir, the duty which i owe to myself. i cannot, as other gentlemen have boasted they can, put my hand into my drawer and pull out the instructions by which i am to be directed on this important subject. the state of south carolina is a very large stockholder in some of her state banks, and if a selfish policy, contracted to the narrow sphere of the unique advantage in dollars and cents of the government of that state--in contradiction and disregard of the great body of her own citizens, and the citizens of the rest of the states in the union--could have weighed a moment with her legislature, i too might have been instructed. let me not be understood, mr. president, as drawing any comparison between the conduct of the state of south carolina and the conduct of the great and leading states who have acted otherwise; but i must and will tell of the things that i do know. i rejoice, sir, that the state which i come from has, in this instance, been actuated by that magnanimity and patriotism which on all former occasions has distinguished her conduct; that neither selfishness, nor party rage, nor a spirit of intolerance, has induced her to counteract or embarrass the national legislature in its pursuit of the great object of its institution, the good of the whole. i hope it will not be considered as savoring of egotism when i say that my appointment to the very honorable station i now hold was unsolicited by me. that my sentiments on the subject now under consideration had been by me unequivocally expressed at the last session of congress, and were well known to those who appointed me. nay, further, after my venerable and respected predecessor had resigned his seat here, and had declined, also, his appointment for the ensuing six years, pending the election of a successor to him, and when my name was held in nomination, a resolution was offered, similar to those which we have heard so much talk about, proposing to instruct the senators of that state to oppose the renewal of the charter of the bank of the united states. this resolution, as i am informed, lay on the speaker's table when the election was gone into. i was elected, and the proposers of the resolution had not power nor influence enough to raise it from the table on which it lay, and it died stillborn at the end of the session; and if i were to make an inference at all on these transactions, i should suppose i was tacitly instructed to vote for the renewal of the bank charter. but i seek not the avoidance of responsibility. it is here, sir, in my own bosom, i have instructions paramount to all others. my beloved country has rested the matter here, and my gratitude is superadded to all other moral obligations operating on me to perform this trust, and to execute this duty with faithfulness. i find the authority of congress to grant this charter in the same sections of the constitution which the gentlemen who have gone before me have pointed out to you. in section seven, clause first, power is given to congress "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare of the united states; but all duties shall be uniform throughout the united states." clause second gives power "to borrow money on the credit of the united states." and, in the last clause of said section, power is also given to make all laws which shall be necessary and proper for carrying into execution the foregoing powers vested by this constitution in the government of the united states, or any department or officer thereof. let us understand the meaning of the words _necessary_ and _proper_, to the last-quoted clause, for upon a correct knowledge of these depends, in my opinion, the correctness of our conclusions on this subject. the word _necessary_, in its technical and legal sense, in the meaning affixed to it in common parlance, established by usage, custom, reason, and the common law of the land, is different and distinct from the signification of the same adjective derived from the substantive _necessity_, as used by hobbes, hutchinson, hume, and the other metaphysicians of the last century. it is well known that they used the substantive _necessity_ as synonymous with the word _fate_, and which necessity, according to the opinions of one party, controlled omnipotence itself. this necessity was supposed by them co-existent with the deity itself, not prospective nor discretionary, bending in one way, and in one way only, all substance, all matter, and all spirit. this meaning of the word is only to be found with these metaphysicians and philosophers; but in our law books, in the daily and hourly use of the word in common conversation, it has no such meaning. when the old congress passed the conditional charter--which i admit they had not a delegated power to grant, but which is fully in point, both as to the signification of the word, and, also, of their opinion of the necessity, and even indispensableness of a bank for the administering the fiscal concerns of the nation--in the conclusion of the preamble they say that the exigencies of the united states render it indispensably necessary to pass the act, &c.; and in the laws passed during that period, when this government was in the habit of following the english custom of beginning the laws by a preamble, you find the word _necessary_ used as synonymous to _expediency_--practical expediency, (see _laws of the united states_, vol. , page ; _idem_, page ,) in fact, among frail mortals with fallible judgments like ours. with any beings endued with less than omniscience, the word _necessary_ must be only applicable to the honest judgment we can make up concerning the subject to which we apply it; in other words, it is resolvable into that sound discretion with which, as moral agents, we are in the first instance intrusted by our maker, and in the instance now before us, we are intrusted with by the constitution and by the citizens who have sent us here to transact their business. but the rigid _necessity_ which our opponents wish to enforce on us, this metaphysical necessity, must, from its very nature, be immutable; it must be unique, and could not exist in a greater or less degree; and, therefore, the word joined to it in the constitution (_proper_) could have no meaning at all. the laws, to be passed, must be necessary, is the only one way given under heaven by which you are to effect the end desired; in other words, the law must be imposed by fate. it is perfect nonsense to say that there is a latitude left with us to judge whether such a law is proper or improper. i have, i think, brought the meaning of the word _necessary_ to the level and within the comprehension of frail human intellect. the signification of the word _proper_ i take to contain the description of the measure or law to which it is applied, in the following respects: whether the law is in conformity to the letter, the spirit, and the meaning of the constitution; whether it will produce the good end desired in the most ready, easy, and convenient mode, that we are acquainted with. great stress is laid on that amendment of the constitution which says, that all power not expressly granted shall be retained, &c. either the general clause i have relied on gives power or it does not; if it did not give power, why was this amendment made? and if it did, and this power was offensive, why was it not stricken out when the amendment was made? but if it expressly gave power, which i contend, its being suffered to remain is proof that it was not the design of the amendment to take away the power given. could not the territory of columbia have been governed without erecting a single corporation in it? i don't mean well governed. but was there that fatal necessity; that command from jove, "ye fates fulfil it, and ye powers approve," to erect corporations? this legislation to erect corporations being, according to our opponents, _sui generis_, not of the ordinary kind, and only to be exercised where the express authority is given by the constitution, i ask gentlemen to show the clause in the constitution which expressly gives us the power to perform this sublimated act of legislation in this territory any more than in any other part of the united states; and yet at this very session we have sent an armful of these high acts. the shelves of the office of the secretary groan under the pile of charters we have granted. i said it was easy to prove that the broad grant given to congress to legislate for this territory in all cases whatsoever, was restricted and paled in by the constitution. congress cannot make the duties here on imports less or greater than elsewhere in the united states--imports and taxes must be equal, &c.--nor deprive the citizens thereof of the right to a trial by jury, nor grant them titles of nobility; and yet the incidents here alluded to would come under the description in the clause "of all cases whatsoever." in truth, sir, there is not a scintilla of the spirit, nor a single word or letter of the constitution, that loses its power and sanction upon our conduct in legislating in this particular. there is no more a power given us to legislate _ad libitum_ on this territory, nor to derive therefor powers by implication, than is given us in the laws we pass for the whole nation; and if this power, _sui generis_, of creating corporations, is properly defined by our opponents, they ought to go back to the works of yesterday, as well as to those of twenty years' standing, in order to introduce their new order of things. i might here draw a comparison of the tried scheme of using the united states' bank, and the untried scheme of using state banks in aid of the operations of the national treasury; but i should only be saying with less force what has been so fully and so conclusively said by the gentlemen who have preceded me. suffice it to say, that for safe-keeping, for transmission and payment of the funds to any part of the nation, and for enforcing the punctual payment by the debtors to the customs, by addressing to those debtors the arguments to the sense of honor and shame, and also to their interest, to wit: by denying them credit in the bank on failure in punctuality--all these have been afforded to the government without its incurring therefor one cent's expense. are we sure the state banks can or will do this? i beg pardon of the senate for detaining them on topics not new. as this is made a case of conscience, i deemed it necessary to be thus particular. i have no hesitation in saying, we have the right to act on this subject, inasmuch as i think the bank is both necessary and proper for the purposes above referred to. to me it appears that this power is expressly granted; we derive it not by implication; but our opponents, in fact, are pressed to the necessity of using implication to come at the denial they set up against the exercise by congress of this power. i say, further, that this institution is necessary and proper for carrying into effect another general power, viz: the power to borrow money on the credit of the united states. it is acknowledged on all hands that there is not specie enough in the nation, if applied solely to that purpose, to pay our annual impost. the operations of the bank of columbia in transferring the revenue derived from a part of virginia (and of the land funds from the westward,) and of the manhattan bank in performing the same office in respect to the collections in connecticut, have been dwelt upon by the honorable senator from maryland, (mr. smith.) his arguments drawn from the facts would have been more conclusive if he could have instanced the same facilities afforded to the government between banks disconnected by the effect of that neighborhood circulation and of that course of trade very apparent in the instances he has produced. but it is not conclusive at any rate. there is a neighborhood medium of circulation, (the state bank paper,) and there is a national medium, (the united states paper.) the latter, under the present state of things, corrects the operations of distant banks and renders their transfers easy; but, deprived of this, would any of them, situated at four and five hundred miles, or at one thousand miles' distance, agree to make these transfers for the government free of expense? could they, for instance, transfer the solid bullion belonging to the united states from orleans to boston or philadelphia, without our affording compensation for freight, insurance, &c.? i have witnessed the advantages of this national medium in the state i live in; and in the months of autumn, when strangers are fearful of venturing to charleston, our western friends, rather than carry the hard dollars, are in the habit of giving two or three per cent. for bills of the bank of the united states. destroy this national medium, you insulate the state banks, which are so far asunder as not to be within the influence of the neighborhood medium of circulation. the stroke of our dreadful wand disconnects the ligament by which they are bound together in their distant operations. mr. pickering.--i will now, mr. president, make some observations on the main question under consideration. whether congress have the power by the constitution to renew the charter of the bank of the united states? it has been said that the power to incorporate a bank for the united states is a substantive and original, and not a derivative or implied power. this has been repeated, but i have heard no arguments in support of the position; it is naked assertion. it has also been called "act of sovereignty;" as if to alarm and deter us by its awful magnitude. but, sir, the sovereign power of congress is sometimes exercised on subjects of comparatively little moment. a few days since we passed a bill to authorize the erection of a bridge; and another, to change the name of an individual, to enable him to inherit an estate. the power of congress is sovereign to all the purposes of the constitution. they can lay and collect taxes, duties, imposts, and excises; borrow money, regulate commerce, and make all needful rules and regulations respecting the territory and other property of the united states. and they have the power to make all laws necessary and proper to carry the foregoing and all other constitutional powers into execution. when proposing to exercise this general power, in any case not expressly mentioned, we have to consider whether it be "necessary and proper." it has been said that "necessary" here means indispensable; something without which a particular power expressly granted cannot be carried into execution. but, sir, i see no ground for this interpretation. in the affairs of a nation, or other community, whatever the public good requires to be done, is necessary and proper to be done. it is a moral, not an absolute necessity. it is necessary for me to be here in my place, because it is my duty to be here. necessary and proper are opposed to unnecessary and improper. congress should do no act unnecessary and improper; but, like state legislatures, do whatever is necessary and proper to attain the objects for which they are respectively constituted. in determining whether any proposed measure be necessary and proper to carry into execution any power expressly given to congress, we have to consider whether that measure has a just or useful relation to the end. for instance, the constitution having prescribed no mode of collecting the revenues, it rested in the discretion of congress to adopt such a mode or such modes as should appear to them best adapted to that object. instead of appointing custom-house officers in the large commercial cities and towns, where a banking establishment could be supported, congress might there have erected banks, as the most certain, punctual, and cheap mode of collection. suitable officers of a bank might have performed all the duties of entering and clearing vessels, and all other duties pertaining to the custom-house, without any charge to the public; the deposits of the public moneys so collected in those banks, upon which the usual banking operations might be carried on, yielding an adequate compensation for all the services so performed. the public revenues, when collected, must also be safely kept. an experience has demonstrated that, of all depositaries, banks are the safest. and the same experience has shown that, as the public moneys are required to be frequently transferred, for the public expenditures, from one state to another, the bank of the united states, with its branches, has furnished the best mode of transfer; it being effected with despatch, with certainty, and without any risk or expense to the united states. the gentleman from kentucky (mr. clay) asked, if banks are necessary for collecting the public revenues, why give them any other power? the answer is, that it is the essential nature of banks, which renders them so peculiarly fit to collect the revenues. the merchants, whose bonds are lodged in the banks for collection, are also borrowers of money from the banks; and if they fail of paying their bonds, as they become due, their credit will fail; they can obtain no more loans until their bonds are paid. this has just been presented to our view, in the most striking manner, by my colleague. "to borrow money," is another of the great powers expressly vested in congress. and in this, as in the power first considered, no mode of borrowing being prescribed in the constitution, congress are to devise and provide the means in their judgment most sure, expeditious, and ample, to obtain loans. and this was one of the great objects for which the bank of the united states was originally incorporated. the gentleman from virginia, near me, (mr. brent,) and the gentleman from south carolina, (mr. taylor,) have, in very forcible language, displayed the impolicy of depending on state banks or individuals for loans, in public emergencies. at such times, these banks and individuals may be most hardly pressed by their usual customers. to suffer the bank of the united states to dissolve, and to have recourse to state banks, will be so far going back to the condition of the united states under the articles of confederation, when our union was but a rope of sand. when the pressure of the revolutionary war was over, indeed, while that pressure remained, congress in vain made requisitions on the individual states; no money, or none in any measure adequate to the public exigencies, could be obtained. after the war, when the public treasury was empty, congress importuned--implored the states, individually, to grant the power to raise a revenue from commerce, to defray the current expenses of the general government, and to fulfil the public obligations, but the power could not be obtained. states, deriving large revenues from commerce, chose to retain them for their own treasuries. it was this helpless, forlorn condition of our country, which forcibly convinced the nation of the necessity of forming a new system of government; and our present government was the fruit of that necessity. "to regulate commerce" is a third great power vested in congress. and it is conceived that the exercise of any power well adapted to give safety, facility, and prosperity to commerce, must be comprised in the power to regulate it. hence the erecting of light-houses has been mentioned as an instance in which an implied power, incidental to the regulating of commerce, has been exercised. but it has been said that this power is expressly given in another part of the constitution; that by which congress is vested with exclusive legislation over the district which is the seat of government, and over places ceded to the united states "for the erection of forts, magazines, arsenals, dockyards, and other needful buildings." but if we had no commerce, no navigation, light-houses would not be "needful buildings," they would be of no use whatever. hence it is clear that they have a direct relation to commerce and to nothing else; and, therefore, the erecting of them is properly adduced as an instance of the exercise of a power implied in the general express power to regulate commerce. the safety and facility of commercial operations was also greatly to be promoted by means of a general currency which should have equal credit throughout the union. this has been accomplished by the notes issued from the bank of the united states, under the authority of congress, exercising the power incidental to that of regulating commerce. a fourth great power, which i mentioned to have been vested in congress, is that of "making all needful rules and regulations respecting the territory and other property of the united states." this "other property" consists partly of money. and, as congress have power to make any regulations concerning it which are needful, that is, which may, in their opinion, best promote the general welfare, this money may be (as some of it has been) vested in bank stock; and with the truest regard to its safety and good management, in the stock of a bank erected by congress, of which they may have a suitable inspection; and where it may safely deposit the public revenues, there to await the public demand; and, in the mean time, usefully aid those banking operations which give facility to commerce and to public loans. but as an evidence that the constitutionality of the act to incorporate the bank of the united states was at least doubtful, we have been told by the gentleman from maryland, (mr. smith,) that president washington doubted; that his mind was in suspense to the last moment, when the act was to be approved or disapproved. that while the then secretary of the treasury, (mr. hamilton,) a very great man, maintained the constitutional power of congress to erect that bank, another man, (mr. jefferson,) equally great, then secretary of state, and the attorney-general, (mr. randolph,) a distinguished lawyer, maintained the contrary doctrine--that congress had not that power. it is true, sir, that washington, cautious and circumspect beyond any man i ever knew, did suspend his decision to the last day allowed him by the constitution. the confidence with which the secretary of state and the attorney-general supported their opinions on this question, was sufficient to excite in the president the greatest caution. both were lawyers, and they raised many legal objections. the written opinions of these gentlemen were (as i have been well informed) put into the hands of the secretary of the treasury two days before it was necessary for the president to decide. and the reasoning of mr. hamilton, in his written argument, enabled the president to decide with satisfaction; with a full conviction of the constitutionality of the act. the following are some of the objections offered by the secretary of state: he said--"that the proposed incorporation (of the bank) undertakes to create certain capacities, properties, or attributes, which are against the laws of alienage, descents, escheat, and forfeiture, distribution, and monopoly. and that nothing but a necessity, invincible by other means, can justify such a prostration of laws which constitute the pillars of our whole system of jurisprudence, and are the foundation laws of the state governments. "washington, sir, was not a lawyer, and who can wonder that his fair mind was alarmed by such a solemn declaration? that it was kept in suspense by the assertion, that the act for establishing the bank would overturn the pillars of our whole system of jurisprudence, and the foundation laws of the state governments? but, sir, it required only the knowledge of a lawyer at once to overturn these objections. the following are some of the remarks of the secretary of the treasury: "if these are truly the foundation laws of the several states, then have most of them subverted their own foundations. for there is scarcely one of them which has not, since the establishment of its particular constitution, made material alterations in some of those branches of its jurisprudence, especially the law of descents. but it is not conceived how any thing can be called the fundamental law of a state government which is not established in its constitution, unalterable by its ordinary legislature." "to erect a corporation, is to substitute a legal or artificial for a natural person; and, where a number are concerned, to give them individuality. to that legal or artificial person, once created, the common law of every state, of itself, annexes all those incidents and attributes which are represented as a prostration of the main pillars of their jurisprudence. it is certainly not accurate to say, that the erection of a corporation is against those different heads of the state laws; because it is rather to create a kind of person, or entity, to which they are inapplicable, and to which the general rule of those laws assigns a different regimen. the laws of alienage cannot apply to an artificial person, because it can have no country. those of descent cannot apply to it, because it can have no heirs. those of escheat are foreign from it, for the same reason. those of forfeiture, because it cannot commit a crime. those of distribution, because, though it may be dissolved, it cannot die." sir, i beg leave to add a few explanations. by the laws of most, perhaps of all the states, aliens are not permitted to hold real estate; but in all they are free to hold personal property of every kind, and particularly bank stock. the law of escheat relates to the property of a citizen who dies without heirs, near or remote, and without a will. in such case his property falls to the state. but instances of escheat do not occur perhaps twice in a century in any state, and, consequently, is of trifling moment. although a corporation cannot commit a crime, it may violate the rules prescribed in the law for its establishment, and thus incur an immediate forfeiture of its charter. or, if for such a violation of its fundamental law, or any mismanagement of the institution to the public injury, its charter be not forthwith taken away, the state may refuse to renew it. as to the law of distribution, that operates when a person dies intestate. but though a corporation cannot die, yet the individuals to whom its property belongs will die; and their bank property, equally with their other property, becomes liable to the law of distribution. one of the injurious consequences of destroying the bank of the united states has been stated to be, the withdrawing of seven millions of dollars from the active capital of the united states, and transmitting it to europe, where that portion of the bank stock is owned. to this it has been answered, by the opposers of the bank, that these millions will not be withdrawn, but transferred from the united states' bank to banks of the several states. how then, sir, shall we get rid of that dangerous influence of foreign stockholders which the same gentlemen urge as a reason for not renewing the charter of the bank of the united states? sir, it is well known that money in europe is less valuable than in the united states. that moneyed men there are glad to loan their money at an interest of five per cent, or less, while in these states the legal interest is six per cent. and a multitude of our citizens find their account in employing that foreign capital, paying an interest of six per cent., by which, in the course of trade, they gain ten, fifteen, or twenty per cent.; that foreign capital, in the hands of our merchants, has resembled the five and the ten talents, wherewith they have gained other five and other ten talents. the distresses which will follow the dissolution of the bank of the united states, especially in the great commercial cities, have been forcibly described in the plain testimonies of the committee of mechanics and manufacturers from philadelphia--a committee selected wholly from the democratic party; distresses which were sufficient to move a heart of stone. and why should this bank be dissolved? it has been said that the state banks are competent to all the necessary operations of the general bank. if the contrary had not been shown, it might be answered, that the bank of the united states was incorporated when there were only three banks in the united states; one in philadelphia, one in new york, and one in boston. these were inadequate to the necessities and accommodation of the general government and of the citizens. to supply this deficiency, it was necessary to erect the national bank; and the dignity, honor, good faith, and credit of the united states stand pledged for the renewal of its charter. the institution having been well conducted, and found in the highest degree useful and beneficial to government, and to the citizens at large, it ought to be continued. individual citizens and foreigners became stockholders on a well-grounded expectation of the stability of the government. it was in this just expectation that foreigners, englishmen, purchased of our government, itself, its remaining shares of the public stock in the bank of the united states, and at an advance of forty-five per cent.; so that, for every hundred dollars laid out by the government in the purchase of bank shares, the united states received of these foreigners one hundred and forty-five dollars. and how was it possible for these foreigners to conceive the government capable of destroying the work of its own hands, and of reducing their property to one hundred dollars a share, for which, but eight years before, they had paid the same government one hundred and forty-five dollars? wednesday, february . _bank of the united states._ the senate resumed, as in committee of the whole, the bill to amend and continue in force an act, entitled "an act to incorporate the subscribers to the bank of the united states," passed on the th day of february, . mr. crawford said he regretted extremely, that at so late an hour, he was constrained to throw himself upon the indulgence of the senate, especially as the subject was so much exhausted by the able and animated discussions which had for so many days attracted their attention. before i enter upon the few remarks which i feel it my duty to make in reply to the numerous comments which have been made upon the observations which i had the honor to submit to the consideration of the senate, at the commencement of this discussion, permit me, sir, to acknowledge the liberality and indulgence with which those observations have been generally treated. in the course of the few observations to which i intend to confine myself, it shall be my endeavor to exercise that indulgence towards others which has been extended to me. the gentleman from kentucky (mr. clay) complains of the committee, because they have listened to the representations of two delegations from the city of philadelphia who presented memorials to the senate, who referred them to the committee; and because the committee have, in his opinion, given an adventitious importance to their representations, by the minuteness and by the pomp and parade with which they have been detailed to the senate. it will be recollected that the committee did not seek the post which has been assigned them by the senate, nor did they desert it after it was assigned to them. the object of referring petitions to committees is to collect that information which the senate ought to have before it acts, and which in its collective capacity it cannot obtain. it has always been the practice of committees to permit the petitioners to be present at their meetings, to make such explanations, and to give such information touching the subject of their petition, as they think connected with it. it is the duty of committees to detail to the senate the information which they collect, to enable the members to take a full view of the subject upon which they are called upon to act. the committee in the present case has done all this, and it has done nothing more. had it pursued a different course it would have justly subjected itself to the animadversions of the senate. to the information collected by the committee from these delegations, and laid before the senate, my friend from maryland (mr. smith) has opposed a statement of facts, and his opinion founded upon those facts. as the situation and talents of that gentleman entitle his statements and opinions to great weight; as it is more than probable that the votes of several members will ultimately rest upon the weight of his authority, my honorable friend from maryland (mr. smith) will pardon me if i should examine his observations rather according to the rules of evidence, than those of logic. in making this declaration i wish to be explicitly understood, as excluding every idea of charging that gentleman with having made statements which he did not believe, or with having given opinions he did not entertain. i have no doubt but that he sincerely believes in the correctness of his statements, and in the accuracy of his opinions; but if, in the course of my observations, i shall prove incontestably that he is mistaken in some of his statements and opinions, it will teach the senate the necessity of weighing the remainder of them with great circumspection. if i shall be able to show that he is mistaken in a case, the evidence of which is matter of record, that circumstance alone will induce the senate to reject all idea of receiving his statements and opinions with implicit confidence. the gentleman from maryland has stated several cases in which the state banks, and the banks of this territory have accommodated the government where the united states had refused. the cases stated prove nothing, and ought to have no influence with this government in establishing a permanent system of revenue. if the state and territorial banks have upon several occasions received the bills of other state banks to accommodate the government, it was because it suited their convenience at the time. it was a mere temporary transaction, and forms an exception to the general rule. the charter of no bank in the united states compels them to take the paper of other banks, and whether they do receive them or not will depend upon contingent circumstances, or upon whim and caprice. no reliance, therefore, ought to be placed upon the duration of any regulation which is not enforced by their charters. the gentleman from maryland thinks that the united states will have the same influence over the state banks that it has had, and will have over that of the united states. if he is correct as to the extent of that influence, his conclusion may be correctly drawn. but, sir, is it true that the national government has no other influence over this bank than that which can be produced by withdrawing of its deposits? if it is so, then it must be admitted that the united states will have the same influence over the state banks that they will have over one of their own creation, because they can as easily withdraw their deposits from the one as the other. but, sir, the united states have an influence over the bank of the united states, which is wholly independent of, and unconnected with, the right of withdrawing their deposits from its vaults. the bank is dependent on them for its existence. by renewing the charter for short periods of time you create a state of dependency upon the government, which will at all times make the bank completely subservient to all the legitimate objects for which it was created. how, sir, is it with the state banks? upon whom are they dependent for legal existence and for length of days? upon the state governments. suppose the authority from which they derive their existence should place itself in opposition to the government of the united states; and suppose that this state of hostility should happen a year, or two before the time at which their charters were to expire, and the state legislature should direct them to hold the deposit of public moneys against the demand of the national government, what course would they pursue under such circumstances? sir, the case which i have stated is not a mere possible case. the history of several of the large influential states proves that this state of hostility, which i have supposed, is not an imaginary one. make yourselves dependent upon the state banks for the collection and transmission of your revenue, and that opposition, which has but seldom happened, will become more frequent. their disposition to control the operations of the national government will increase with every increase of the means of annoyance, which the folly and improvidence of congress may throw into their hands. for whose benefit, sir, is the government to strip itself of this right, so essential for the due administration of its finances? is it for the benefit of the great mass of the american people? no; not one in a hundred of them have any interest in the state banks. they feel no interest in the question; their true interest is more effectually subserved by the operations of the bank of the united states than it can possibly be by the state banks. this bank affords them a portable currency which is of equal value in every part of the united states, while the credit and currency of the state banks is local. it is impossible to resist the conviction that the prompt and secure collection of our revenue is principally owing to the influence of the bank. but, sir, the bank has another direct influence upon the collection of your revenue. by the rules established in the bank at philadelphia, every person whose bond to the government is deposited there, has a right, upon getting an additional endorser, to claim a discount for half of the amount of his bond, and the part so discounted is immediately carried to the credit of the united states, and the bank takes upon itself the risk of the ultimate collection. in this way, sir, one-half of the bond is collected at the sole risk of the bank, without any possibility of loss on the part of government. and yet, sir, it is contended that the bank has nothing to do with the collection of the public revenue. the gentleman from maryland says that the scarcity of money, and the alarm and dismay which the delegation of mechanics had represented as existing in philadelphia, could not be the effect of the contraction of discounts by the bank of the united states, because that bank, as well as the state banks, are going on with their ordinary discounts. this is true, but the gentleman from maryland has forgotten that this delegation stated that the bank, upon the rejection of their memorial by the house of representatives, had contracted their discounts, and that a correspondent contraction had taken place in the discounts of the state banks which had produced the pressure; and that the pressure had spread alarm and dismay through the city. that before they left the city, the directors of the bank of the united states had come to an understanding with the directors of the state banks, all of whom had determined to resume and continue their ordinary discounts until the last hour. notwithstanding the banks had resumed their discounts, the panic which had been produced did not cease, and the scarcity of money, and the distrust which had taken place, still continue to exist in philadelphia. the gentleman from maryland admits expressly that the transmission of your public money for the payment of the army and navy must be effected through the agency of banks, but contends that that object can be effected as well by the state banks as by a bank of the united states. my friend from kentucky (mr. pope) said, that the great characteristic difference between the present government and that which existed under the old articles of confederation, is, that the present government has within itself the means of executing its own measures, without relying upon the state governments; whereas the old congress had to rely upon the states for the execution of the measures which it had previously devised and adopted. the gentleman from maryland, in speaking of the means which had been resorted to, to procure the renewal of the charter, says that we have not procured memorials to be presented to congress praying that the charter might not be renewed--we have not procured pamphlets to be written, published, and laid upon the tables of members, proving the unconstitutionality and inutility of the bank--we have not imposed upon the credulity of honest mechanics and manufacturers, and by that means procured delegations to be sent to pray for the rejection of the bank memorial. surely, sir, the gentleman did not by these declarations mean to insinuate that any one of those gentlemen who support the bill upon your table, have had any agency in procuring any application to be made in favor of the bank. i know that gentleman's respect for himself; his respect for the senate; his respect for the individual members of this body, as well as his respect for the general rules of propriety, exclude the possibility of his making such an insinuation. [mr. smith explained, by saying, i exclude every idea of such an insinuation.] sir, i will tell the honorable gentleman from maryland, what has been done by those who are opposed to the renewal of the charter. i do not mean the members of the senate who are opposed to it, but those who have attempted to inflame public opinion upon this question. letters, sir, have been written from this place to induce the state legislatures to instruct their members to oppose the renewal of the charter of the bank. i will ask the honorable gentleman from maryland whether he does not know that letters have been written for that purpose? the gentleman from maryland has said, and i am extremely sorry that he has, that the bank of the united states had their agents in this city for two sessions, intriguing with members of congress to obtain a renewal of their charter. i can assure that gentleman that i have had as little to do with the agents of the bank as he has had. if, sir, i was disposed to retort upon those who are opposed to the renewal of the charter, i would ask, if they have not seen published in the democratic papers of pennsylvania, maryland, and virginia, extracts of letters said to be written in the city of washington, charging the members of congress who are in favor of it with being bribed and corrupted, and with being disposed to sell the sovereignty of the nation to british capitalists? have they not seen, in the same papers, conversations detailed with great minuteness, which it is pretended have passed between members of congress, calculated to excite public odium and indignation against the friends of the bill now under consideration? sir, i will not for a moment indulge an idea that these letters have been written or these conversations detailed by any member of this body. the idea that such has been the fact is too humiliating, too degrading, not only to this honorable body, but to human nature itself; to be entertained but for a moment. and yet, sir, the author of a charge, as base as it is false, against my honorable friend from kentucky, (mr. pope,) has, day after day, occupied a seat in a gallery of the senate, to which no person has a right of access, but by an introduction of one of the members of this body. sir, the highway robber, when compared with the infamous fabricator of this base attempt to assassinate the reputation of this honorable member, becomes a virtuous and estimable character. such, sir, has been the warfare which has been waged against the renewal of the charter. denunciations and charges of political apostacy are the measures by which we have been assailed from without and from within. sir, i have shown that the bank question was no party question in its origin--that it was a question upon which an honest difference of opinion always has existed, and does now exist. and, shall i be charged with deserting the standard of the people, while i am treading in the footsteps of the great father of his country? the gentleman from maryland (mr. smith) has said that he understood that a proposition was made in the federal convention to vest congress with power to create corporations generally and without limitation. had i been a member of that convention, i should most certainly have voted against the proposition, because it would have been unreasonable. why should such a power have been delegated? not certainly as necessary to execute the delegated powers, because they are very limited--a general power to create corporations would have enabled congress to have created them _ad libitum_ where there was no possible relation between them and any one of the delegated powers. the vote upon the incorporating the bank proves that if such a proposition had been submitted, it must have been rejected under a conviction that the power to create corporations is incident to such of the general powers as might require an act of incorporation completely to execute them, and fairly vested by the constitution in congress; because ten of the members of that convention were in congress, and voted for that bill--because general washington signed that bill, because the only member of that convention now in congress voted for the bill and is now in favor of renewing the charter; and because there were but eight members of that convention in congress who voted against it. mr. president, i will now proceed to examine the objections which have been offered to the construction which i have given to several clauses of the constitution. in the observations which i made upon this part of the question when i was up before, i endeavored to prove that every construction that had been given to this instrument, upon the idea of its being perfect, was likely to be erroneous. the gentleman from virginia (mr. giles) and the gentleman from tennessee (mr. whiteside) still view it as a model of perfection. they are certainly at liberty still to entertain that opinion. every man has a right to erect his idol in this land of liberty, and to fall down and worship it according to the dictates of his own conscience. i endeavored also to prove, that if we applied the same rule of construction to that clause of the constitution from which we endeavor to derive the right to create a bank, which has been applied to that from which the power to erect a light-house has been derived, the constitutional difficulty at once disappears. until my friend from virginia (mr. giles) and my friend from tennessee (mr. anderson) had otherwise declared, i had always understood the right to erect light-houses had been exercised as incidental to the power to regulate commerce. it seems, however, that i am mistaken, and that this right is incidental to that clause which gives congress the right to exercise exclusive legislation in certain places. the clause reads in the following words: "to exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of congress, become the seat of the government of the united states, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings," &c. now, says my friend from tennessee, this clause gives the right to erect dockyards; and as dockyards must be on the seacoast, therefore congress has the right to erect light-houses, because they must also be on the seacoast. this argument is extremely logical, nay, syllogistical, in form, but it is extremely illogical in substance. the conclusion drawn from the premises, is as necessary, as though i were to say, that because two and two makes four, therefore five and five makes twelve. the conclusion in the latter case is as necessary as in the former. but my honorable friend from virginia (mr. giles) derives it from the authority given in this clause, to erect other needful buildings. but the question recurs, needful for what? why, certainly, for the purposes before specified. what are they? forts, magazines, arsenals, and dockyards. if this clause gives any authority to erect forts, magazines, arsenals, and dockyards, the other needful buildings spoken of must be needful for the specified purposes. i should suppose that no man, who spends only a few days in this city, can be at a loss to determine what is comprehended under the term "other needful buildings." let him go to the dockyard, nicknamed a navy-yard in this city, and he will there find a little town of "other needful buildings" in the words of the constitution. but, sir, i deny that this clause of the constitution expressly gives any right, but that of exercising exclusive legislation in the places to be accepted or purchased for the purpose therein specified. the right to erect forts, magazines, and arsenals, is fairly incidental to the right of declaring war, and of raising armies; and the right to erect dockyards is fairly incidental to the right of providing and maintaining a navy. but if for the sake of argument i should admit that the right to erect forts, &c., is given in this clause, how can it be proved that the right to erect a light-house is also given? forts, magazines, arsenals, and dockyards, are enumerated, and as the constitution says that all powers not expressly given are retained, if the right to erect forts, magazines, &c., is given in this clause, most clearly the right to erect light-houses is retained by the states, because it is not to be found in the enumeration contained in the clause. when i had the honor of addressing the senate before i questioned the authority of the state governments to create banks; i then stated, and i again explicitly state, that it is with reluctance that i have felt it my duty to make any inquiry into the constitutional right of the state governments to incorporate banks. the state legislatures ought to have recollected the spanish proverb, which says that those who live in glass-houses ought not to throw stones. before they undertook to question the constitutional authority of congress, they ought to have thoroughly examined the foundation upon which their own right rested. the honorable gentleman from virginia (mr. giles) says that the construction which i have given to that part of the constitution which prohibits the states from emitting bills of credit, would apply equally to promissory notes given by one individual to another under the laws of a state, as to a bank bill. permit me to inquire of that gentleman whether he ever saw a law authorizing one man to give another his promissory note? he may search the pandects of justinian; he may turn over the leaves of the musty volumes written upon the common law, from the days of bracton and fleta down to the present day, and his search will be in vain. for the right to make contracts, the right to give promissory notes, is antecedent to, and independent of all municipal law. the gentleman will find laws and decisions in abundance, regulating the effect of endorsements and other collateral circumstances, and prescribing the manner of enforcing the payment of promissory notes, but he will never find a law giving the right to execute the promissory note. but it is said that the bills of credit, which the states are prohibited from emitting, must be bills of credit emitted on the credit of the state. if this distinction should be well founded, many of the state banks are still subject to the charge of unconstitutionality, because in many of them the states are directly interested, and wherever that is the case, their bank bills are bills of credit emitted on the credit of the state. but the correctness of this distinction may well be denied, because the restriction is as general as it could possibly be made. but it is said that this restriction applies only to bills of credit which are made a legal tender in the payment of debts; that bills of credit, designated in the constitution, are _ex vi termini_ a legal tender. for the correctness of this exposition, an appeal is made to the restriction which immediately follows it, which restrains the right of the states to make anything but gold and silver a legal tender in the payment of debts. it appears to me that the latter restriction excludes most emphatically the construction contended for. if the states are prohibited from emitting bills of credit, it would have been, to say the least of it, wholly nugatory to say they should not make them a legal tender. if the bills are not emitted, it is impossible that they can be made a legal tender. to suppose that the restriction upon the right of the states to make any thing but gold and silver legal tender has any connection with or influence upon the restriction to emit bills of credit, is as absurd as to suppose that the decalogue, after having declared that "thou shalt do no murder," should have added, but, if you will murder, you shall not rob and strike the dead. the construction of the restraint upon the right to make any thing but gold or silver a tender, is that they shall not make specific articles, as tobacco or cotton, a tender, as was the case in some of the states. but it is said that the history of the states will show that the bills of credit specified in the constitution were those only which were a legal tender in the payment of debts. let us examine this point, according to the rule of construction applied to another clause in the constitution by a large majority of both houses of congress during the present session. another clause in the constitution gives congress the power to admit new states into the union under two limitations: st. that no new state shall be formed within the limits of any state without the consent of the state; and, d. that no new state should be formed by the junction of two or more states without the consent of such states, and also of congress. these limitations prove that the formation of new states, within the limits of the united states, was in view of the convention at the time that this clause was adopted; and the subsequent clause, which gives congress the power to make rules for the government of its territories, proves that these territories were at that moment under consideration. in addition to these reasons for believing that the framers of the constitution had no idea of forming new states, beyond the limits of the united states, those who were opposed to the admission of orleans as a state contended that the history of the united states proves that the power to erect new states and admit them into the union was intended to be confined to new states within the limits of the united states at the formation of the constitution, and that a different construction would disparage the rights of the original states, and, of course, be a violation of the constitution. what reply did the majority of congress give to this train of reasoning? they said that the right to admit new states cannot be subject to any other limitations or restrictions than those which are contained in the clause which gives the right, and as there is no restriction upon the right to erect new states without the then limits of the united states, congress have an unlimited right to erect and admit them into the union. let us apply the same rule of construction to the restriction of the right of the states to emit bills of credit. the restriction is a general one; it has no exceptions; and every attempt to make exceptions ought to be repelled by the answer which was given to those who opposed the right of congress to admit the territory of orleans into the union as a state. the construction i have contended for gains additional weight when we consider the restriction which immediately precedes that under consideration. no state shall coin money, emit bills of credit, &c. bills of credit are but the representatives of money. the constitution gives congress the right to coin money, and to regulate its value. it takes from the states the right to coin money and to emit bills of credit. why give to congress the right to coin money and regulate its value? because the interest of the nation requires that the current coin of the nation should be uniform both as to its species and value. if this is the true reason why the right of coining money and fixing its value was given to congress, does not the right to issue that which is to be the representative of this coin; which, in fact, is to usurp its place; which is to be the real currency of the nation, necessarily belong to congress? does not the right to create a bank, which shall issue this representative of money, come within the same reason? i think it does. to the fervid imagination of my friend from kentucky, (mr. clay,) this power to create a bank appears to be more terrific than was the lever of archimedes to the frightened imagination of the romans, when they beheld their galleys suddenly lifted up and whirled about in the air, and in a moment plunged into the bosom of the ocean. are these apprehensions founded in reason, or are they the chimeras of a fervid and perturbed imagination? what limitation does the constitution contain upon the power to lay and collect taxes, imposts, duties, and excises? none but that they shall be uniform; which is no limitation of the amount which they can lay and collect. what limitation does it contain upon the power to raise and support armies? none other than that appropriations shall not be made for a longer term than two years. what restriction is to be found in it upon the right to provide and maintain a navy? none. what upon the right to declare war and make peace? none, none. thus the constitution gives to the government of the united states unlimited power over your purses--unlimited power to raise armies and provide navies--unlimited power to make war and peace, and you are alarmed; you are terrified at the power to create a bank to aid it in the management of its fiscal operations. sir, nothing short of my most profound respect for honorable gentlemen, who have frightened themselves with this bugbear, could induce me to treat the subject seriously. gentlemen have said that they are alarmed at the exercise of this power, and i am bound to believe them. sir, after giving congress the right to make war and peace; the right to impose taxes, imposts, duties, and excises, _ad libitum_; the right to raise and support armies without restriction as to number or term of service; the right to provide and maintain a navy without a limitation, i cannot bring myself to tremble at the exercise of a power incidental to only one of these tremendous grants of power. the gentleman from kentucky (mr. clay) contends that we have attempted to give a degree of weight and force to what we are pleased to call precedents, to which they would not be entitled in those tribunals from which we derive all our ideas of precedents. i am happy to find that my friend from virginia (mr. giles) agrees with me in opinion upon this subject. indeed the principal difference between that gentleman and myself is confined to the question of expedience. he thinks that the construction which has been given to the constitution ought to be considered as conclusive; and that great inconvenience will be produced by unsettling what ought to be considered as finally settled and adjudged. sir, i have closed the observations which i thought it my duty to make in reply to the comments which have been made upon the remarks which i had previously submitted to the consideration of this honorable body. if, sir, i preferred my political standing in the state which i have the honor to represent (and, sir, i do not profess to have any out of it) to the public welfare, i should rejoice at the success of the motion which has been made by the honorable gentleman from tennessee, (mr. anderson.) but, sir, as i believe the public welfare infinitely more important than any fleeting popularity which an individual like myself can expect to enjoy, i shall most sincerely regret the success of that motion. sir, i have said but little about the degree of distress which will flow from the dissolution of the bank, because i have not that kind of evidence which would enable me to judge of it with any degree of accuracy. the convulsed state of the european nations; the immense losses which our commerce has sustained by the operation of the decrees and orders of the tyrants of the land and the ocean, imperiously admonish us to beware of making untried and dangerous experiments. by supporting this institution, the tottering credit of the commercial class of your citizens may be upheld, until the storm shall have passed over. by overturning this great moneyed institution at the present crisis, you may draw down to undistinguished ruin thousands of your unfortunate and unoffending fellow-citizens. the question was then taken on striking out the first section of the bill, (equivalent to a rejection,) when it appeared that there were for the motion , against it , as follows: yeas.--messrs. anderson, campbell, clay, cutts, franklin, gaillard, german, giles, gregg, lambert, leib, mathewson, reed, robinson, smith of maryland, whiteside, and worthington. nays.--messrs. bayard, bradley, brent, champlin, condit, crawford, dana, gilman, goodrich, horsey, lloyd, pickering, pope, smith of new york, tait, taylor, and turner. the senate being equally divided, it became the duty of the vice president to decide the question by his vote; previously to which he made the following observations: gentlemen: as the subject on which i am called upon to decide has excited great sensibility, i must solicit the indulgence of the senate while i briefly state the reasons which influence my judgment. permit me to observe, that the question to be decided does not depend simply upon the right of congress to establish under any modification a bank, but upon their power to establish a national bank, as contemplated by this bill. in other words, can they create a body politic and corporate, not constituting a part of the government, nor otherwise responsible to it but by forfeiture of charter, and bestow on its members privileges, immunities, and exemptions not recognized by the laws of the states, nor enjoyed by the citizens generally? it cannot be doubted but that congress may pass all necessary and proper laws for carrying into execution the powers specifically granted to the government, or to any department or officer thereof; but, in doing so, the means must be suited and subordinate to the end. the power to create corporations is not expressly granted; it is a high attribute of sovereignty, and in its nature not accessorial or derivative by implication, but primary and independent. i cannot believe that this interpretation of the constitution will, in any degree, defeat the purposes for which it was formed. on the contrary, it does appear to me, that the opposite exposition has an inevitable tendency to consolidation, and affords just and serious cause of alarm. in the course of a long life i have found that government is not to be strengthened by an assumption of doubtful powers, but by a wise and energetic execution of those which are incontestible; the former never fails to produce suspicion and distrust, while the latter inspires respect and confidence. if, however, after a fair experiment, the powers vested in the government shall be found incompetent to the attainment of the objects for which it was instituted, the constitution happily furnishes the means for remedying the evil by amendment, and i have no doubt that in such event on an appeal to the patriotism and good sense of the community it will be wisely applied. i will not trespass upon the patience of the senate any longer than to say, from the best examination i have been able to give the subject, i am constrained by a sense of duty to decide in the affirmative--that is, that the first section of the bill be stricken out. saturday, march . _bank of the united states._ mr. clay, from the committee to whom was referred, on the th february, the memorial of the stockholders of the bank of the united states, praying that an act of congress might be passed to continue the corporate powers of the bank for a further period, to enable it to settle such of its concerns as may be depending on the d of march, , made the following report: that your committee have duly weighed the contents of the memorial, and deliberately attended to such explanations of the views of the memorialists as they have thought proper to present through their agents. that, holding the opinion (as a majority of the committee do) that the constitution did not authorize congress originally to grant the charter, it follows, as a necessary consequence of that opinion, that an extension of it, even under the restrictions contemplated by the stockholders, is equally repugnant to the constitution. but, if it were possible to surmount this fundamental objection, and if that rule which forbids, during the same session of the senate, the re-agitation of a proposition once decided, were disregarded, your committee would still be at a loss to find any sufficient reasons for prolonging the political existence of the corporation for the purpose of winding up its affairs. for, as it respects the body itself, it is believed that the existing laws, through the instrumentality of a trust properly constituted, afford as ample means as a qualified continuance of the charter would, for the liquidation of its accounts, and the collection and final distribution of its funds. but should any inconvenience be experienced on this subject, the committee are persuaded it will be very partial, and such as the state authorities, upon proper application, would not fail to provide a competent remedy for. and, in relation to the community, if the corporation, stripped of its banking powers, were to fulfil _bona fide_ the duty of closing its affairs, your committee cannot see that any material advantage would be derived. whilst, on the contrary, if it should not so act, but should avail itself of the temporary prolongation, in order to effect a more durable extension of its charter, it might in its operations become a serious scourge. your committee are happy to say that they learn, from a satisfactory source, that the apprehensions which were indulged, as to the distress resulting from a non-renewal of the charter, are far from being realized in philadelphia, to which their information has been confined. it was long since obvious that the vacuum, in the circulation of the country, which was to be produced by the withdrawal of the paper of the bank of the united states, would be filled by paper issuing from other banks. this operation is now actually going on. the paper of the bank of the united states is rapidly returning, and that of other banks is taking its place. the ability to enlarge their accommodations is proportionately enhanced; and when it shall be further increased by a removal into their vaults of those deposits which are in the possession of the bank of the united states, the injurious effects of a dissolution of the corporation will be found to consist in an accelerated disclosure of the actual condition of those who have been supported by the credit of others, but whose insolvent or tottering situation, known to the bank, has been concealed from the public at large. your committee beg leave to present the following resolution: _resolved_, that the prayer of the memorialists ought not to be granted. the report was ordered to lie on the table. _claim of general wilkinson._ mr. bradley, from the committee to whom was referred the memorial of general james wilkinson, praying to be remunerated for moneys disbursed in the service of the united states, made the following report: that the said wilkinson has exhibited to them claims against the united states, to the amount of eleven thousand eight hundred dollars and ninety-six cents. it appears to your committee, from the documents and proofs produced by the petitioner to explain and support his claim against the public, that, of the above sum, $ , . are claimed for his disbursements and expenses incurred pending burr's conspiracy; $ , paid for a tract of land for the public service, now occupied by the troops on the missouri river, near its mouth; $ , the amount of his passage from baltimore to charleston, when ordered on extra duty by the president; and $ , . , for losses of property sustained by his sudden transfer from st. louis, where he was exercising the functions of a civil magistrate, to the sabine, for the purpose of directing the arms of the nation against an invading force of the spaniards. your committee have no hesitancy in saying that many of the charges appear to be legal and founded in justice, and may furnish a proper set off against the balance opposed to him by the war department, and that the residue are entitled to equitable consideration; but, from the shortness of the time, and the pressure of business before the expiration of the session, your committee cannot find leisure to form that deliberate and clear judgment on the merits of the several items which justice to the petitioner and to the public require; they, therefore, beg leave to offer the following resolution: _resolved_, that the further consideration of the petition of general james wilkinson, together with the accompanying documents, be postponed to the next meeting of congress. the report and accompanying documents were ordered to lie on the table. the senate adjourned to o'clock this evening. sunday evening, o'clock, march . _adjournment._ _resolved_, that messrs. turner and condit be a committee on the part of the senate, with such committee as the house of representatives may join, to wait on the president of the united states and notify him, that, unless he may have any further communications to make to the two houses of congress, they are ready to adjourn. _ordered_, that the secretary acquaint the house of representatives therewith, and request the appointment of a committee on their part. a message from the house of representatives informed the senate, that the house concur in the resolution for the appointment of a joint committee to wait upon the president of the united states, and notify him of the intended recess, and have appointed a committee on their part. mr. turner, from the joint committee, reported that they had waited upon the president of the united states, who informed them that he had no further communications to make to the two houses of congress. _ordered_, that the secretary notify the house of representatives that the senate, having finished the business before them, are about to adjourn. whereupon, the president adjourned the senate without day. proceedings in the senate, in secret session, at the third session of the eleventh congress. thursday, january , . the following confidential message was received from the president of the united states, by mr. edward coles, his secretary: _to the senate and house of representatives of the united states_: i communicate to congress, in confidence, a letter of the d of december, from governor folch, of west florida, to the secretary of state; and another, of the same date, from the same, to john mckee. i communicate, in like manner, a letter from the british chargé d'affaires to the secretary of state, with the answer of the latter. although the letter cannot have been written in consequence of any instruction from the british government, founded on the late order for taking possession of the portion of west florida well known to be claimed by the united states; although no communication has ever been made by that government to this of any stipulation with spain, contemplating an interposition which might so materially affect the united states; and although no call can have been made by spain, in the present instance, for the fulfilment of any such subsisting engagement; yet the spirit and scope of the document, with the accredited source from which it proceeds, required that it should not be withheld from the consideration of congress. taking into view the tenor of these several communications, the posture of things with which they are connected, the intimate relation of the country adjoining the united states, eastward of the river perdido, to their security and tranquillity, and the peculiar interest they otherwise have in its destiny, i recommend to the consideration of congress, the seasonableness of a declaration that the united states could not see, without serious inquietude, any part of a neighboring territory, in which they have, in different respects, so deep and so just a concern, pass from the hands of spain into those of any other foreign power. i recommend to their consideration, also, the expediency of authorizing the executive to take temporary possession of any part or parts of the said territory, in pursuance of arrangements which may be desired by the spanish authorities; and for making provision for the government of the same, during such possession. the wisdom of congress will, at the same time, determine how far it may be expedient to provide for the event of a subversion of the spanish authorities within the territory in question, and an apprehended occupancy thereof by any other foreign power. james madison. washington, _january , _. the message was read. on motion by mr. clay, _resolved_, that the message from the president of the united states, of this day, which has been just read, be referred to a committee, with leave to report by bill or otherwise. mr. clay, mr. crawford, mr. bradley, mr. smith of maryland, and mr. anderson, were appointed the committee. monday, january . mr. clay, from the committee, appointed the d instant, on the confidential message of the president of the united states, reported a declaration and bill to enable the president of the united states to take possession of the country lying east of the perdido, and south of the state of georgia and the mississippi territory, and for other purposes; which were read, and passed to a second reading. tuesday, january . the bill to enable the president of the united states to take possession of the country lying east of the perdido, and south of the state of georgia and the mississippi territory, and for other purposes, was read the second time; and, on motion by mr. clay, it was considered as in committee of the whole. on motion, by mr. bayard, to amend the bill, by striking out of the first section thereof the words, "in the event of such arrangement for that purpose as shall have been made with the local authority which may then exist;" and, in lieu thereof, to insert the words, "in case an arrangement has been or shall be made with the local authority of the said territory for delivering up the possession of the same to the united states:" on motion, by mr. gilman, a division of the question was called for: and the question being put on striking out, it was determined in the affirmative. the question was then taken upon inserting the proposed amendment, and determined in the affirmative--yeas , nays , as follows: yeas.--messrs. anderson, bayard, brent, campbell, condit, crawford, franklin, german, gregg, lambert, lloyd, mathewson, pickering, pope, reed, smith of maryland, smith of new york, tait, taylor, and worthington. nays.--messrs. bradley, champlin, clay, cutts, dana, gaillard, gilman, goodrich, horsey, leib, robinson, and whiteside. on motion, by mr. bayard, it was agreed to amend the fourth section of the bill, by inserting, after the word "enacted," the words, "that in case possession of the territory aforesaid shall be obtained by the united states, as aforesaid." wednesday, january . the senate resumed, as in committee of the whole, the bill to enable the president of the united states to take possession of the territory lying east of the perdido, and south of the state of georgia and the mississippi territory, and for other purposes. on motion, by mr. clay, it was agreed further to amend the bill, by adding to the first section the remainder of the original second section; and by adopting the original third and fourth sections, as the second and third sections of the bill; and having gone through the amendments, the president reported the bill to the house accordingly. on the question, "shall this bill be engrossed and read a third time, as amended?" it was determined in the affirmative. mr. anderson submitted the following motion: _resolved_, that the subject-matter of the bill, entitled "an act to enable the president of the united states to take possession of the country lying east of the perdido, and south of the state of georgia and the mississippi territory, and for other purposes," be kept inviolably secret by the members of the senate, until the senate shall, by their resolution, take off the injunction of secrecy. which was read; and on the question to agree thereto, it was determined in the affirmative--yeas , nays , as follows: yeas.--messrs. anderson, bradley, brent, clay, crawford, cutts, franklin, gaillard, gilman, gregg, lambert, leib, pope, reed, robinson, smith of maryland, tait, taylor, whiteside, and worthington. nays.--messrs. bayard, champlin, dana, goodrich, lloyd, and pickering. mr. cutts, from the committee, reported the bill last mentioned, correctly engrossed. a confidential message was received from the house of representatives, by mr. montgomery and mr. cutts, two members of that body, with the following resolution, in which they ask the concurrence of the senate: congress of the united states, _in house of representatives, jan. , ._ taking into view the present state of the world, the peculiar situation of spain and of the american provinces, and the intimate relation of the territory eastward of the river perdido, adjoining the united states, to their security and tranquillity: therefore, _resolved, by the senate and house of representatives of the united states of america in congress assembled_, that the united states cannot see, with indifference, any part of the spanish provinces, adjoining the said states, eastward of the river perdido, pass from the hands of spain into those of any other foreign power. the resolution was read, and passed to a second reading. thursday, january . so it was _resolved_, that this bill do pass, and that the title thereof be, "an act to enable the president of the united states, under certain contingencies, to take possession of the country lying east of the river perdido, and south of the state of georgia and the mississippi territory, and for other purposes." on motion, by mr. clay, _resolved_, that a committee of two be appointed to carry the said bill to the house of representatives, and ask their concurrence therein. _ordered_, that mr. clay and mr. bayard be the committee. mr. clay reported that the committee had performed the service assigned them. friday, january . mr. anderson, from the committee appointed on the subject, reported the confidential resolution from the house of representatives, with the following amendment: strike out all the words after the word "the," first mentioned in the first line of the resolution, to the end thereof, and in lieu thereof, insert "peculiar situation of spain and of her american provinces; and considering the influence which the destiny of the territory adjoining the southern border of the united states may have upon their security, tranquillity, and commerce:" therefore, _resolved by the senate and house of representatives of the united states of america in congress assembled_, that the united states, under the peculiar circumstances of the existing crisis, cannot, without serious inquietude, see any part of the said territory pass into the hands of any foreign power; and that a due regard to their own safety compels them to provide, under certain contingencies, for the temporary occupation of the said territory; they, at the same time, declare that the said territory shall, in their hands, remain subject to a future negotiation. which report was read, and considered as in committee of the whole; and, on motion to adopt the report, a division of the question was called for by mr. dana, and the question to strike out was agreed to, and the amendment was adopted; and the president reported the resolution to the house accordingly. _ordered_, that the resolution pass to the third reading, as amended. eleventh congress.--third session. proceedings and debates the house of representatives. monday, december , . this being the day appointed by the constitution for the meeting of congress, the following members of the house of representatives appeared and took their seats, to wit: _from new hampshire_--james wilson. _from massachusetts_--ezekiel bacon, william ely, and joseph b. varnum, _speaker_. _from vermont_--samuel shaw. _from connecticut_--epaphroditus champion, john davenport, jr., jonathan o. mosely, timothy pitkin, jr., and benjamin tallmadge. _from new york_--james emott, jonathan fisk, robert le roy livingston, erastus root, thomas sammons, john thompson, uri tracy, and killian k. van rensselaer. _from new jersey_--adam boyd, jacob hufty, and henry southard. _from, pennsylvania_--william anderson, david bard, robert brown, william crawford, william findlay, daniel heister, aaron lyle, william milnor, john rea, matthias richards, adam seybert, john smilie, george smith, samuel smith, and robert whitehill. _from maryland_--charles goldsborough, alexander mckim, philip b. key, archibald van horne, john montgomery, and nicholas r. moore. _from virginia_--james breckinridge, william a. burwell, matthew clay, john dawson, david s. garland, thomas gholson, peterson, goodwyn, joseph lewis, jr., thomas newton, john roane, and james stephenson. _from north carolina_--willis alston, jr., james cochran, james holland, thomas kenan, nathaniel macon, archibald mcbryde, joseph pearson, richard stanford, and john stanley. _from south carolina_--lemuel j. alston, william butler, joseph calhoun, thomas moore, john taylor, and robert witherspoon,. _from georgia_--william w. bibb, howell cobb, and george m. troup. _from kentucky_--joseph desha, richard m. johnson, and samuel mckee. _from tennessee_--pleasant m. miller, john rhea, and robert weakley. _from ohio_--jeremiah morrow. several new members, to wit: from connecticut, ebenezer huntington, returned to serve in the place of samuel w. dana, appointed a senator of the united states; from new jersey, john a. scudder, in the place of james cox, deceased; and from maryland, robert wright, in the place of john brown, resigned; appeared, produced their credentials, were qualified, and took their seats. a quorum, consisting of a majority of the whole house, being present, the clerk of the house was directed to acquaint the senate therewith. on motion of mr. dawson, a committee was appointed on the part of the house, jointly with the committee appointed on the part of the senate, to wait on the president of the united states, and inform him that a quorum of the two houses is assembled, and ready to receive any communications he may be pleased to make to them. the clerk of the house was directed to procure newspapers from any number of offices that the members may elect, provided that the expense do not exceed the amount of three daily papers. the house then adjourned until to-morrow morning eleven o'clock. tuesday, december . several other members, to wit: from massachusetts, richard cutts, ebenezer seaver, and charles turner, jr.; from rhode island, elisha r. potter; from new york, thomas r. gold; from pennsylvania, robert jenkins; and from virginia, burwell bassett and john w. eppes, appeared, and took their seats in the house. a new member, to wit, from new york, samuel l. mitchill, returned to serve in the place of william denning, resigned, appeared, produced his credentials, was qualified, and took his seat. jonathan jennings, the delegate from the indiana territory, and julian poydras, the delegate from the territory of orleans, appeared, and took their seats. a message from the senate informed the house that a quorum of the senate is assembled, and ready to proceed to business. they have appointed a committee on their part, jointly with the committee appointed on the part of this house, to inform the president of the united states, that a quorum of the two houses is assembled, and ready to receive any communications that he may be pleased to make to them. mr. dawson, from the joint committee appointed to wait on the president of the united states, reported that the committee had performed the service assigned them, and that the president answered that he would make a communication to the two houses of congress to-morrow at twelve o'clock. wednesday, december . several other members, to wit: from new hampshire, daniel blaisdell and john c. chamberlain; from massachusetts, j. quincy, samuel taggart, and laban wheaton; from vermont, william chamberlin, martin chittenden, and jonathan h. hubbard; from connecticut, lewis b. sturges; from new york, vincent matthews, peter b. porter, and ebenezer sage; and from rhode island, richard jackson, jr., appeared, and took their seats in the house. a message was received from the president of the united states, which was read at the clerk's table. [for this message see senate proceedings of this date, _ante_ page.] the documents accompanying the message having been read, in part, the house adjourned. thursday, december . the speaker laid before the house certificates of the election of ebenezer huntington, of connecticut; john a. scudder, of new jersey; robert wright, of maryland; and william mckinley, returned to supply the vacancy occasioned by the resignation of john g. jackson, of virginia; which were referred to the committee of elections. friday, december . another member, to wit, from new jersey, william helms, appeared, and took his seat in the house; also, a new member, to wit, from maryland, samuel ringgold, returned to serve in the place of roger nelson, resigned, appeared, produced his credentials, was qualified, and took his seat in the house. monday, december . several other members, to wit: from massachusetts, gideon gardner; from new york, gurdon s. mumford; from pennsylvania, john porter; from virginia, john love and daniel sheffey; and from north carolina, lemuel sawyer, appeared, and took their seats. the speaker laid before the house a certificate of the election of william t. barry, elected to supply the vacancy occasioned by the resignation of benjamin howard, of kentucky; which was referred to the committee of elections. tuesday, december . several other members, to wit: from new york, herman knickerbacker; from virginia, edwin gray and jacob swoope; and from south carolina, richard wynn, appeared, and took their seats. wednesday, december . two other members, to wit: from north carolina, meshack franklin and william kennedy, appeared, and took their seats. thursday, december . another member, to wit, from georgia, dennis smelt, appeared, and took his seat; also two other new members, to wit: joseph allen, from massachusetts, in the place of jabez upham, resigned, and william t. barry, from kentucky, in the place of benjamin howard, resigned, appeared, were qualified, and took their seats. _apportionment bill._ the house resolved itself into a committee of the whole, on the bill to apportion the representatives according to the third enumeration of the people of the united states. the question recurring on filling the blank with the number of souls which should entitle to a representative-- mr. macon said he was decidedly of opinion that the ratio ought to be fixed, before the result of the census was known. he had no objection to a moderate increase of the number of members; if they amounted to so many that one side of the house could not hear the other side speak, debate was at end, and the purposes of deliberative legislation defeated. he should have liked the bill better, he said, if it had declared that the house of representatives should hereafter consist of a certain number of members, and had left the apportionment then to be made according to the population. on the subject of electioneering, he said it became him at least to say, that that portion of the people who sent him here, had not been concerned in it. whatever might have been the practice elsewhere, so far as concerned his constituents, there had been no going about or haranguing. and, on the subject of electioneering, said he, wherever the people are free, there will be electioneering. it belongs to free government. possibly different parts of the country may differ as to the mode. in some, men go themselves about electioneering; in others, their friends do it for them. in some, newspaper publications help an election; in others, they destroy it. in some places, i have heard, the sacred pulpit is not free from it; in others, a divine would be destroyed that would attempt it. there was not more electioneering south, mr. m. believed, than elsewhere; certain he was that candidates could not there spend the sums of money which he had heard of being spent elsewhere in an election. he concluded by saying he was in favor of a moderate increase of representatives. he was not afraid that, from a multitude of counsellors, nothing would be done; it was quite as much to be feared from too few that they would act rashly. friday, december . another member, to wit, from massachusetts, abijah bigelow, elected to supply the vacancy occasioned by the resignation of william stedman, appeared, was qualified, and took his seat. _apportionment bill._ mr. gold considered this bill as a very important one, as fixing the construction to be put on a provision of the constitution. while, on the one hand, it might be admitted that business would be in general better done by a small number of representatives, yet, on the other hand, there were important considerations in favor of a large number, as gentlemen would find by referring to the discussions at the period of the adoption of the constitution. it was then feared by some that the representation of so great a people would be too small. if gentlemen would refer to a number of papers, drawn up by an association of gentlemen, at that time, and published under the title of "the federalist," they would find various arguments used to induce the legislature to make the representation full; so that, at that period, no apprehensions had existed of the representatives becoming too numerous. on the contrary, it was supposed that the public confidence would be impaired by having a small delegation. in adverting to the relaxed state of the union, and how much it was exposed to be shook by attempts to weaken it, it was supposed that public confidence would be inspired, and general satisfaction given, by the selection of a large number. it was true, mr. g. said, that representation might swell so much as to operate to the exclusion of legislation; but the house of representatives would not, even if the present ratio were retained, be so numerous as many other legislative bodies in the union. he had no objection to increasing the numbers of the house of representatives to such an amount as would permit public business to be done with facility. gentlemen might differ as to the precise ratio; but, while they argued in favor of a small number, from the inconvenience of a large delegation, he hoped they would conceive with him that well-grounded apprehensions might be entertained of the evils which would result from its being too small. mr. mitchill said he was in favor of the largest number proposed; and, not having been able to obtain that, he should vote for the largest on which a majority could agree. in the district represented by his colleague (mr. mumford) and himself, there was probably one hundred and twenty thousand souls, and yet he had not heard any murmuring that they were not adequately represented. congress, mr. m. said, did not convene here to legislate on all the subjects of the rights of citizens. our government is, he contended, a peculiar piece of machinery, an _imperium in imperio_. the representatives to congress left behind them legislatures, whose province it was to take care of the personal rights and the rights of property of our citizens. with these concerns, said mr. m., we have nothing to do. we meet here under a constitution expressly framed and devised for legislating on select subjects, which, on account of the generality of their nature, could not be confided to the several states. when, then, we consider the narrow grounds we have to legislate on, that our great privileges are left at home, we shall be convinced that there is no occasion that this body should be as numerous as if we were concerned in the great questions of property and right, which are secured by the constitution, under the guardianship of the state legislatures, and of the courts for the furthering of justice. if i were to quote a precedent of a legislature for commanding influence, and for wisdom and sagacity in carrying us through an arduous contest whilst struggling for our liberties, i should quote the old congress--limited in number, but remarkable for the honesty and fidelity with which they performed what a more numerous body could not have accomplished. and, if i wished to cite an instance of the evils to be dreaded from a numerous assembly, i should quote the national convention of france, where representatives, assembling in great number, exhibited such a spectacle of disorder as i hope we shall never, by a multitude of counsellors, run the risk of imitating. mr. pitkin said that he had not expected that a bill of so much importance would have progressed so far, and gone through the committee of the whole in so rapid a manner as this had. what, he asked of the house, was settled by the passage of this bill? nothing was, or could be settled by the present congress, unless the returns were made from the different states of the number of inhabitants in each state, before the bill became a law; for congress alone could designate and specify the number of representatives which each state should send. the laws heretofore passed, designating the number of representatives, had, at the same time, declared the ratio, and specified the number of representatives of each state. congress alone were competent to decide on the legality of the returns, and on their act alone could the state legislatures proceed. mr. p. presumed no member would say that it should be left to the executive, or any department of the government, to say how many representatives each state should send to congress. the present congress might fix the ratio as they pleased, but it would not be obligatory on the next congress, who could, and undoubtedly would, modify or reverse it as they should think proper. this bill was, therefore, premature, and, in fact, would not settle the principle which it proposed to decide. he was, therefore, on this ground, opposed to the passage of this bill; and he believed the inconvenience of deciding it now would be greater than if the business were to rest until after the returns were made. mr. quincy said that the agitation of this question at the present moment had taken him as much by surprise as it had the gentleman from connecticut. he had no idea that a question so pregnant with interest would be hurried through the house in this way. his object in rising was to obtain a postponement of the question till some time in the next week, for the consideration of a point, which to his mind was important. he objected to the bill on the principle that it would be a violation of the constitution to pass it. it went to establish a ratio which, in its effect, must be abortive. the constitution says: "representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and, excluding indians not taxed, three-fifths of all other persons. the actual enumeration shall be made within three years after the first meeting of the congress of the united states, and within every subsequent term of ten years, in such manner as they shall by law direct. the number of representatives shall not exceed one for every thirty thousand, but each state shall have at least one representative." the constitution then had specifically made it the duty of the house to apportion the representation of each state according to its respective numbers. was it not, he asked, infinitely absurd and a direct violation of the constitution, to apportion the representation before these numbers were known? when the constitution had made it a duty to do a thing according to a standard prescribed, would they do that thing before that standard could be in possession of the house? suppose that in , before the numbers of the states were known, congress had undertaken to fix the ratio of representation--would not the hall have rung with the exclamations that it was a violation of the constitution? and how would this bill, mr. q. asked, less violate the constitution than such an act would have done? for, as to the numbers to be ascertained by the present census, congress were as little competent to decide as they were before any census was taken. this was the ground on which he objected to the bill as unconstitutional, and which he wished an opportunity thoroughly to examine. he therefore moved that the bill lie on the table. mr. fisk said it had been deemed desirable to fix the ratio before the numbers of each state were ascertained, so as to avoid the difficulty which would arise from the fractions, and to afford an accommodation to the state legislatures, which would be in session before the next meeting of congress. it would indeed be necessary to pass a law declaring the number of representatives to be sent by each state; but that would be a mere matter of form, if the ratio were previously ascertained by law. mr. f. treated the idea of this bill's being unconstitutional, as altogether unwarranted by fact; for it did not fix the apportionment, but merely the ratio, according to which the representatives should be apportioned among the states when their respective numbers were known. mr. wright was in favor of postponing, and decidedly opposed to the bill. he was against it, because it proposed to bestow on others a power residing in congress. if this law were to pass, could the secretary of state be authorized to declare the number of representatives to which each state was entitled? could congress transfer to him legislative power, and authorize him to declare of how many members this body should consist? he presumed not. the power was vested in congress, and not in the secretary of state. but gentlemen were desirous now to fix the number of souls which should entitle to a representative--and why? that the state legislatures, understanding the number of representatives to which they are entitled from knowing the census, may proceed to district their states, in anticipation of the law to be passed by congress. but their acts would not be conclusive, because congress might change the ratio, and they would have to undo all they had done. mr. w. hoped that this business would be postponed, until, as heretofore, congress would be possessed of all the information of which the nature of the case would admit. when the census was received from the president of the united states they would be much better able to act than now. in this case, mr. w. said he held himself imperiously bound to follow the steps of his predecessors. he held it a correct maxim in general, that the practice of to-day should be the precedent for to-morrow. why need they decide this business immediately? there was yet some months in the session, and time enough to reflect on the subject. why legislate by halves? if this law were passed, mr. w. asked, was it perfect? did it declare to how many representatives each state should be entitled? he said he could refer to cases in which errors had occurred in the census; and it was in the power of the house alone to correct any errors which might have escaped the secretary of state. in maryland a mistake had occurred in the last enumeration, of thirty or forty thousand souls. he believed that a great portion of the district comprising cecil and hartford counties had been omitted; and he recollected perfectly well that the error was corrected; and, by turning his eye to the proceedings of that day, he could see other errors. he wished, when the house acted, that they should do it understandingly, and with all the evidence before them of which the case was susceptible. he hoped the bill would be postponed until the returns of the census were received in the usual mode. mr. w. alston opposed the postponement. he was as loth to depart from old practices as the gentleman from maryland, if those practices were found to be good. but when they proved inconvenient or useless, it was certainly right to depart from them. what, then, had experience taught them on this subject? why, that if the ratio was not fixed before the census was known, great inconvenience would result to many states. congress, at their last session, being apprised of the circumstance, had in their law directed that complete returns should be made to the secretary of state by the first of march next. it was well known that, if they did not fix the ratio before the first of march, they would not be able to fix it after; when the ratio was fixed, however, the apportionment would not be the work of an hour. if it became necessary to deprive a state of a representative, he asked whether it would not be more palatable that it should be done now than after the census was known? the state deprived of a representative could not complain; the ratio would affect it in the same proportion, whether it gave or took a member. that argument, therefore, was entitled to no consideration. mr. a. expressed his surprise that the small states appeared to be opposed to a large ratio; for, if it would be an advantage on any side, it would be decidedly in favor of the small states. he thought, indeed, that the representatives of the large states, in voting for a large ratio, had shown great magnanimity and liberality. mr. goldsborough was in favor of postponement, and was sorry to see the bill attempted to be hurried through. gentlemen had not maturely considered the subject, and, on reflection, would be convinced that their votes were, if not a direct, at least an indirect, violation of the constitution. this was premature legislation on what properly belonged to the next congress, and which, act on it as they might, would unquestionably come before congress at their next session. if it should be found that the ratio agreed on operated unfavorably on the numbers of any state or states, they would be anxious for a reconsideration of the subject. it would be immaterial whether the subject should be brought up by a bill _de novo_, or by a bill to repeal this, if it should indeed become a law; the ardor of discussion would be the same in either case. if this be admitted, the only argument in favor of the bill is done away. the constitution having directed that apportionment should be made accordingly to the whole census, mr. g. said that he could not see how congress could fix it before they knew what that census was. he did not know that every gentleman on the floor was ignorant of any of the returns; some might be already apprised of the returns of their own state. each one made estimates no doubt, in his own mind, as to the probable result; and, for himself, mr. g. said he had been endeavoring to make some sort of a calculation; and if the bill passed, and the ratio should prove unfavorable to the numbers of the state which he had the honor to represent, he should feel himself bound to move a repeal of the law; and they would have the whole discussion over again. the question on the bill's laying on the table was carried-- to . and on motion, the house adjourned until monday. monday, december . another member, to wit, from new york, john nicholson, appeared, and took his seat in the house. tuesday, december . another member, to wit, from massachusetts, barzillai gannett, appeared, and took his seat. george poindexter, the delegate from the mississippi territory, also appeared, and took his seat. friday, december . two other members, to wit: from virginia, john clopton, and walter jones, appeared and took their seats; a new member, to wit, william mckinley, also from virginia, appeared, was qualified, and took his seat. monday, december . three other members, to wit: william hale, from new hampshire; benjamin pickman, jr., from massachusetts; and thomas newbold, from new jersey, appeared, and took their seats. _claims for military services in the old french war._ mr. morrow, from the committee on the public lands, made a report on the several petitions of the officers and soldiers, and the heirs of officers and soldiers who served in the british army in america, in the war between great britain and france; which was read, and the resolution therein contained concurred in by the house. the report is as follows: the committee on public lands, to whom was referred several petitions, claiming lands for military services, performed in the war of , between great britain and france, report: that, considering the subject-matter of the said petitions highly important, on account of the interest it has recently excited, and the speculation it has given rise to in various parts of the united states, the committee have carefully examined the state papers and public documents, of the period of the above war, to ascertain the original foundation of the supposed claim. in pursuing this investigation, the committee have not been able to discover that any engagement or contract whatever was made or entered into by the government, or under the authority of great britain, with the officers and soldiers of the provincial troops, serving in the war aforesaid, for a grant of lands, either as an encouragement to their entering into the service, or as a compensation for services. all that the committee have been able to find on the subject is in a proclamation of the king of great britain, of the th of october, , (after the closing of the war and disbanding of the troops,) and in the following words: "_and whereas_ we are desirous, upon all occasions, to testify our royal sense and approbation of the conduct and bravery of the officers and soldiers of our army, and to reward the same, we do hereby command and empower our governors of the several provinces on the continent of north america to grant, without fee or reward, to such reduced officers as have served in north america during the late war, and are actually residing there, and shall personally apply for the same, the following quantities of land, subject, at the expiration of ten years, to the same quit-rents as other lands are subject to, in the province within which they are granted, as also subject to the same conditions of cultivation and improvement, viz: "to every person having the rank of a field officer, , acres. "to every captain, , acres. "to every subaltern or staff officer, , acres. "to every non-commissioned officer, acres. "to every private man, acres. "we do likewise authorize and require the governors and commanders-in-chief of all our said colonies, upon the continent of north america, to grant the like quantities of land, and upon the same conditions, to such reduced officers of our navy of like rank, as served on board of our ships of war in north america, at the times of the reduction of louisburg and quebec, in the late war, and who shall personally apply to our respective governors for such grants." in this state paper, the committee can perceive no foundation whatever for the present claim upon the united states. instead of a contract with the officers and soldiers for land, the proclamation contains a mere instruction to the provincial governors--an instruction emanating from the munificence of the sovereign, and for conferring a gratuity, not issued for the satisfaction of any previous claim or demand upon government. that the grant intended by the above proclamation was rather a testimony of respect and approbation, than a donation of value, appears from the prescribed terms on which it was to be made, they being the same on which lands were granted to others in the provinces, with the exception, that the military grants were to be made free of office fees, and exempt from payment of quit-rents for ten years. had application been made to the land offices of the provincial governments, as was the duty of all the claimants, there can be no doubt but that grants would have been readily made to the full extent of the bounty intended by the proclamation, subject, however, to the usual condition for settlement and improvement. forty-seven years have now elapsed since the foregoing proclamation, during which period the above claims have laid dormant, and the committee do conceive, that, upon fair and just principles, those claims would have been considered derelict and abandoned had the government, under which they arose, continued; but to admit them against the united states, placed as they now are, under a government founded on a revolution, which has intervened, is required by no principle of justice, and would, in the opinion of the committee, be an unauthorized disposition and sacrifice of the public property of the united states. on no principle of national law, or by any treaty or convention between the united states and great britain, are the united states bound to perform the engagements of the former government of great britain, especially for mere bounties; nor would the purposes for which the several states have ceded land, within their respective jurisdictions, to the united states, warrant the appropriation of those lands for the satisfaction of the claims in question, were the same better founded than by the committee they are conceived to be. the committee, therefore, beg leave to submit the following resolution: _resolved_, that the prayer of the petitioners ought not to be granted. monday, december . another member, to wit, from delaware, nicholas van dyke, appeared, and took his seat. wednesday, january , . two other new members, to wit: from new hampshire, nathaniel a. haven; and from maryland, john campbell, appeared, and took their seats. _orleans territory._ the house resolved itself into a committee of the whole, on the bill for admitting the territory of orleans as a state into the union. mr. bibb said it was very far from his intention to oppose the passage of the bill. on the contrary, he was favorably disposed to it; but a difficulty had occurred to him which he would state as a reason for delaying a decision on the bill for the present. the bill proposed including in the state all that part of the territory which lay west of the perdido, &c. the president, by his proclamation, although he had required its occupation, he declared that the right should be subject to negotiation. now, if it became a state, would not all right of negotiation on the subject be taken from the president? mr. barry said that the necessity of state government, the want of proper control by the general government, and its inability to attend to the municipal concerns of the territory, imperiously called upon congress to erect it into a state. it was unimportant, as respected the ratio, that the bill should be delayed till that was ascertained. although the precise population could not be ascertained, yet, from what had fallen from the gentlemen from orleans and mississippi territories, it was probable that the territory had already a right to become a state. mr. b. said it was important that congress should act on this subject, for a variety of reasons. it was a point of the union particularly important to the country which he represented. new orleans commanded the river through which the whole productions of the western and of some part of the southern country were carried to market. it became important in another respect, that the people in that country should have the power of self-government. he alluded to the necessity, in the present posture of affairs, that they should have the power of self-preservation to protect themselves in the enjoyment of their rights, and that the power resulting from state sovereignty ought therefore to be extended to them at this time. the objection which has been urged, respecting the question of title, was equally unimportant. admitted in its full force, it would only require a modification of the bill, reserving to congress the power of changing the boundary of the territory; and this would be a desirable modification because of the undefined limits of the territory. this objection did not meet the merits of the bill, but merely suggested a modification. it was important now to act on the subject, because congress had the power to impose conditions on the territory. if they waited until it had attained a population of , , they could not say no to the demands of these people. mr. sheffey said he was not prepared to act on the subject, because the materials on which to decide were not before the house. whilst he was disposed to treat the inhabitants of the orleans territory as brothers, and not as vassals, he was not ready to transfer the inheritance purchased by the blood of our fathers to foreigners. while he looked upon these people as equals, and was disposed to do them justice, he thought all they could demand at his hands was to be placed on that equality to which they were entitled. it had been said that the population was this much or that much. how much?--mr. s. asked. sixty thousand? forty thousand? thirty thousand? would any gentleman who regarded his honor tell the house that there were , inhabitants in the undisputed territory? he believed not. and would gentlemen favor this french population at the expense of their own interests and rights? it was true indeed that ohio became a state before she had , ; but the ratio of representation was then but , . if he were to reason on this subject, mr. s. said he would say, under the fostering hand of the general government, let them become accustomed to our government, before those were permitted to govern themselves who had so lately emerged from despotism. he was not, he said, directly hostile to the admission of this territory into the union; but he made these observations in answer to speculations ushered in to lead the house from its duty. they ought to have the necessary information. mr. macon said he would treat these people as he would the people of every other territory. they were a part of the nation, and so ought to be considered. there ought to be no question as to what stock they sprung from; the true question was, ought they to be a state? the true policy, mr. m. thought, was, as they were to become a part of the united states, to make them one and indivisible as soon as possible. they had already served a sufficient apprenticeship to the united states, but not under a free government, for the territorial governments were not free. the advantage of exacting of them the condition of using the same language, was a great one. how could they be made one with the united states unless by the use of the same language? mr. m. wished to treat this territory as well as the others, and no better; he would not treat one as a daughter and the other as a step-daughter. he was as willing now to make orleans a state as he had been to make ohio a state. the great object is to make us one people; to make this nation one. as to the mississippi territory, it had not served a much longer apprenticeship than orleans, having only been acquired by the treaty with spain in . the people of orleans possessed certainly as strong an attachment to the nation as could be expected from the time they had belonged to it. when the spaniards invaded the territory, they stepped forward promptly to repel them; and when some citizens of the old states forgot the love every honest heart owes to his country, they showed their attachment to the union by the readiness with which they lent their aid to repel them. to make them a state would make that attachment still greater, and it was therefore advisable to act on the subject. the committee now rose, reported progress, and asked leave to sit again; but before leave was granted, the house adjourned. friday, january . _territory of orleans._ the house resolved itself into a committee of the whole on the bill for admitting the territory of orleans into the union as an independent state, &c. mr. wheaton.--whenever a bill is offered for our sanction, in order that it may become a law, it is proper, before we give it such sanction, that we should inquire whether the subject of it is such as we have constitutional authority to legislate upon; and if so, whether, from a consideration of time and circumstances, it be expedient so to do. it appears to me that the bill now before us is objectionable on both these grounds, and, if so, there is a double reason why it should not pass. a few moments will be sufficient for the remarks i have to make upon either; and, if they shall be deemed of no consequence, there will be this consolation, that they will have occupied but very little time. the subject of this bill is the orleans territory, and the object of it, to form that territory into a state, the people of which are to be subject to the same duties, and entitled to the same privileges, as the people of the united states in their federative capacity. it will be observed that our constitution, by its enacting clause, was ordained and established for the _then_ united states of america. the united states being thus included, implies an exclusion of all others. it may, therefore, be fairly concluded that those that framed this constitution, and those that adopted it, never intended that its immediate operation should extend to any people that did not then, or that should not thereafter be included within the limits of the united states; that they did not intend to enter into a partnership of this sort without some knowledge of those that should compose it, lest the improper conduct of some might end in the ruin of all. the territory of orleans certainly was not within the limits of the united states when the constitution was established. it was known to be otherwise. the people there were foreigners to us, and subjects of another government. that it could not have been intended that the constitution should embrace these people and this territory, may be argued from the extreme danger of carrying the principle into operation. if we may extend our limits at all, without the consent of the people, further than what is expressed in the constitution, who can tell where will be our ultimate bounds, or what number of states we may have in the union? purchase and conquest are objects of ambition. the great napoleon may have more land to sell, and spain now possess what she cannot retain. may we not, in time, have the whole of south america, some of the west india islands, and, possibly, great britain? and if so, upon the same principle that we form the territory of orleans into a state, we may form these territories into as many separate states as we please, and admit them into the union with all the powers and privileges that any of our states now possess and enjoy. then what will become of the old united states, who first entered into the compact contained in the constitution, and for whose benefit alone that instrument was made and executed. instead of these new states being annexed to us, we shall be annexed to them, lose our independence, and become altogether subject to their control. besides, it may be recollected, that, when our independence and national existence was acknowledged by the other nations of the world, the territory now proposed to be received into the union made no part of the united states so acknowledged; if, therefore, this be done, a jealousy may be created in those other nations, and, possibly, they may have some reason to complain that, in addition to the immense increase of population within our ancient limits, we should extend our boundaries so far as to include other countries. this, however, by those who justify the governments of other nations in the pursuit of their projects for universal domination, will be thought deserving of very little consideration. but, it may be well questioned how far the taking of positions that may lead to war comports with that pacific disposition which the people of the united states have been so anxious to maintain; and, whether the obligation they have placed themselves under, by adopting the constitution, to guaranty to every state in the union a republican form of government, and to protect each of them against invasion, can be made to extend to the orleans territory; or, whether the president can have any authority to send our militia there to repel any invasion or suppress any insurrection that may happen there, are inquiries worth some attention before we pass this act. and there will be found another difficulty in the way of carrying the object of it into full effect. if the people of that territory are admitted into the union as a state, on an equal footing with any of the _now_ united states, they will have a right to send to our legislature not only representatives in proportion to their numbers, but, also, two senators, and the constitution makes it a necessary qualification for a senator that he should have been a citizen of the united states at least nine years, a period further back than it can be pretended that any of the people of that territory ever belonged to the united states, unless they be emigrants, and have not, thereby, lost their citizenship. and a president of the united states they never can have from among their own people, unless he be yet to be born, for no person except a natural born citizen, or a citizen of the united states at the time of the adoption of the constitution, can be eligible to the office of president. but, it has been said that congress have already passed a law, wherein they have stipulated with those people, that they shall be formed into a state when they shall have gained a certain number of inhabitants. in answer to this, it is sufficient to say that, if it be incorrect to promise to do a wrong thing, it is more incorrect still to do it. if this bill be unconstitutional, so was that law. but, in opposition to all this, it will, undoubtedly, be said that several new states have been formed by congress since the adoption of the constitution, and that they are well authorized by that instrument. this is admitted. "new states may be admitted by the congress into this union." but, if we look into the article where this authority is to be found, we shall find it applicable to the territories then included within the limits of the united states, or to a division of some of the states then already formed; beyond which, it is believed, this authority has never been exercised. the old confederation did expressly authorize the admission of canada into the union, but the present constitution does not. if such an authority had been proposed to have been given to congress by it, perhaps it had never been adopted. if, however, it should be believed that this bill might pass into a law, in strict conformity with the spirit and letter of the constitution, it is apprehended that the measure would be extremely impolitic and inexpedient at the present moment. we have not even the possession of a part of the country proposed to be embraced by this bill, and both title and possession have been disputed. it is true we have bought the whole country, and dearly paid for it, but still, if we have not a just title, we ought not to expect to hold it; and it is now admitted to be a subject of negotiation; and, even if our titles shall be found to be good, and we gain a peaceable possession, still, if we have a right to buy a thing, i know not why we may not sell it. but, as the expediency of this measure has been considered by other gentlemen, i forbear to add to the remarks i have already made. mr. miller said it would be observed that there were two applications to this house for admission into the union as states; one from the mississippi territory, and the other from the orleans territory. the latter only, said he, is contemplated by the bill before you. neither of these territories have the number of inhabitants required by law to enable them to demand their admission into the union as a matter of right. it may, therefore, be said with propriety to be an application for a favor, going directly to an amicable discussion, and which we may grant or refuse without running the risk of breaking any legal or moral obligation. it has been objected against this bill that the population of the state proposed will not be american. without intimating how far this consideration may have influence on my mind, under the circumstances in which that country has been lately placed, i cannot, however, but remark that it is natural for man to carry his feelings and prejudices about him. i was born in virginia, sir, and i have not yet lost some of my virginia feelings, notwithstanding an absence of fifteen years, and i cannot see why we should expect the people of orleans to act and feel differently from other people, more particularly, when the french nation is towering so far above the other nations of the earth; they will have a secret pride in their glory, they will have some attachments, to what extent i cannot say; but, inasmuch as we know that if we send paddy to paris, that paddy he will come back, the idea is certainly not unworthy of our consideration. the bill on your table has another objection, of some weight with me, in relation to its policy. you propose to do them a favor by granting them an admission to the rank of other states before they can legally demand it, and, at the same time, you propose terms beyond which they cannot go. this, sir, resembles very much a polite invitation to walk in, but under an injunction to see that your feet are well cleaned, and your toes turned out. it is a niggardly sort of policy that i am sorry to see engrafted in the bill. if you design to be liberal, be so; do not destroy your liberality by an ungenerous sentiment. again, sir, there are objections to the bill, as presented, that renders it impossible for me to give it my sanction. it will be seen, sir, that the bill proposes to annex that portion of west florida in dispute between this and the spanish government to the state to be formed out of the territory of orleans. the president has declared to the world that this portion of the country, in our hands, shall be subject to mutual arrangements, hereafter to be entered into between the two governments. but, once annex it to a state and the power to negotiate ceases. what power have we to negotiate about the territory of any of the states? we have none. again, sir, i never will consent that the bay of mobile shall be annexed to any state which includes new orleans and the mouth of the mississippi, unless, indeed, they are both included in the same state with the whole country north, up to the tennessee line. if you annex west florida to the state to be composed of the orleans territory, they will then possess a narrow slip of the country, including nearly the whole of the seacoast of orleans, (including the bay of mobile,) with a most extensive up-country, composed of a great part of the mississippi territory, and, i may say, tennessee, wholly dependent on them, perhaps, for leave to go out into the bay, and, certainly, for the improvement of its navigation. and this, sir, is rendered more probable, as we know men act mostly for their own interest. and, as new orleans, from its present population, will govern the councils of that state, let me ask, sir, if it will not be their interest, as much as possible, to divert the 'trade and capital from the mobile to the mississippi? and what security have we that she will not do so? none; and from the nature of our government can have none. upon the plan i propose, from the extent of the country proposed to be annexed, the people who inhabit it, in time, will have the preponderance, and their interest will dictate the proper course to be pursued in relation to the free passage of the mobile. we may, also, with some certainty, pronounce that the population of the mississippi, if it is not now, will, in a few years, be the greatest slave population, in proportion to the whites, of any country in the united states. is it, then, of no consequence to have those settlements so connected with others, composed of whites, as that they may, at all times, be able, within the limits of their jurisdiction, to suppress insurrections of that sort? is not this a consideration that ought to be taken into account? i, therefore, move you, sir, to strike out the whole of the bill, from the words "a bill," for the purpose of inserting a section by way of amendment, the effect of which will be to consolidate both the territories into a single state, which will include the whole of the country belonging to the united states, east of the mississippi, and south of the state of tennessee. this plan will avoid the objections made to the want of numbers, and will give, also, an american population to the state, if that should be desirable; and will, also, avoid the difficulty occasioned from the situation in which west florida is at this time placed. to this plan i can see but one objection that ought to have any sort of influence, and that, sir, exists more in idea than reality. it is to the size of the proposed state. divide and subdivide this country as you will, their interests, in a political point of view, will be the same. their representation in this house will neither be increased nor diminished by a consolidation. in the senate, the plan proposed is greatly to the advantage of the old states. in that house, they will have but two senators instead of four or six, according to the number of states that may be made. there is, also, no legal objection to this plan. the treaty of with the french republic, only provides for their admission into the union, without regard to their territorial limits, and there is no law repugnant to the plan. mr. gholson said that the observations of the gentleman from north carolina (mr. macon) had rendered it unnecessary for him to make many of the remarks to the committee which he had intended. in no point of view, said mr. g., in which this subject has been considered, can i perceive any reason for adopting the amendment offered by the gentleman from tennessee, (mr. miller.) if that gentleman will only advert to the treaty of cession between france and the united states, and to the act of congress passed pursuant to that treaty, he will readily discover that the amendment he proposes cannot be sanctioned without a manifest violation of public faith. by the third article of the treaty, it is stipulated that "the inhabitants of the ceded territory shall be incorporated in the union of the united states, and admitted as soon as possible, according to the principles of the federal constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the united states." on the second of march, , congress proceeded by an act of legislation to fulfil this engagement with france; and accordingly, by the th section of that act, provided "that whenever it shall be ascertained by an actual census or enumeration of the inhabitants of the territory of orleans, taken by proper authority, that the number of free inhabitants included therein shall amount to sixty thousand, they shall thereupon be authorized to form for themselves a constitution and state government, and be admitted into the union upon the footing of the original states, in all respects whatever, conformably to the provisions of the d article of the treaty concluded at paris on the thirtieth of april, one thousand eight hundred and three, between the united states and the french republic." now, if to the orleans territory you add the mississippi territory, and of the _two_ erect _one_ state, you evidently will not comply either with your stipulations with the french republic, or with your covenant to the orleans territory. for, by these you have agreed that orleans shall become a state and not part of a state only; and there is a wide and substantial distinction between incorporating that territory, together with other territories into a single state, as but a fractional part thereof, and authorizing the people of that territory "to form for themselves a constitution and state government, and to be admitted into the union upon the footing of the original states." in the former case they may possibly have no influence whatever in appointments to the other branch of the legislature, and all their interior regulations may also, by possibility, be dictated to them by an ascendant population in the remainder of the state. in the latter case they will, of course, have the entire direction in regard to their system of police and their state institutions, and will moreover have a right, not participated in by any other persons, of sending two senators to congress. in fact they will be a distinct state sovereignty. surely, then, there is a great and obvious difference between what we have so often promised these people, and what is now proposed for them. mr. bibb conceived that the house could not adopt such an amendment as that proposed, without the consent of georgia; for without her consent they could not make an addition to or division of the mississippi territory. it was true, he said, that he had on a former day proposed to make an addition of territory to the mississippi territory, but it was only during such time as it should remain a territory. to this there could be no objection, as there was no prohibition to it in the compact. it had been his intention, if the house had thought proper to sanction his motion, to have made a proposition to the state of georgia to admit that territory to be incorporated with the mississippi. the amendment now offered evidently proposed a violation of the compact with georgia. mr. macon said this bill had taken rather a curious course. the principle and detail had both been attacked; and yet no proposal had been made to try whether the house would legislate on the subject. he had proposed an amendment to do away some of the objections to the detail; but instead of being allowed to amend the bill, the house were met by a constitutional objection, from the gentleman from massachusetts (mr. wheaton) to the power of congress to make a state. if this objection was good, mr. m. said, he admitted the bill ought not to pass; for, mr. m. said, on this point he could not agree with the gentleman from tennessee, that because a treaty had been made in relation to it, it was too late to object to the constitutionality. mr. m. said no; it was never too late to return to the constitution. if the article of the constitution, however, did not mean that congress might take states out of new territories, what did it mean? there was no occasion for it in relation to the old territories; for the ordinance of the old congress had secured to them the right; and these ordinances were as binding as the treaties which congress had entered into. the change of the form of government did not affect national obligations. the right to become states was one which congress could not take from the old territories. the right of creating states out of acquired territories, was one which he had always contended for; and it had been stated by at least one of those who formed the constitution, that this article had reference to canada. "new states may be admitted by the congress into the union." at the time this provision was made, florida and louisiana were not thought of. canada was the territory kept in view. much, sir, said mr. m., as the united states wanted the southern country, and great as is the convenience of possessing it, i never would have consented to have taken it to have kept them in territorial government forever. i do not want provinces. i am extremely sorry, sir, that whenever this subject is agitated, we are met by the objection that these people are of french descent. i have before expressed my opinion on this subject, and it is needless to repeat it; but if gentlemen wish them to become our brethren in reality, make them our equals; act just towards them. do unto them as you would they should do unto you, and make them your friends. i know an opinion is entertained that only those who are of the favored race can be free. i know, sir, that the english nation has been freer than any other; but the time has been that holland, sweden, and others, have been free--power, however, overcame right, and the people lost their liberties. i cannot consider it any question for our consideration, who shall be their senators and who their representatives. they have had some time a delegate, and will find delegates in the senate as well as the house of representatives. it seems to me, sir, that the gentleman from tennessee need not to have referred to the dispute between the potomac and the delaware, because the constitution has put an end to these sources of strife. it is true, sir, that the orleans territory is a slave country, and i would be glad if they could get clear of them; but that does not at all affect this question. the present situation of mobile and orleans is the reason why i want some alteration in the bill. i would rather not have them under the same government. i have endeavored to ascertain the present population of the orleans territory, so called. there is a difference of opinion among those well informed on the subject, from , to , . he wished gentlemen would permit them to try the question on the principle of the bill, and ascertain whether the house would do any thing with it or not. mr. poindexter observed that the proposition of the gentleman from tennessee for incorporating the present mississippi territory with west florida and the island of orleans, to the sea, with a view to form of the whole one state, did not meet his approbation. from the tennessee line, which would be the northern boundary of the state, to the confluence of the mississippi with the bay of mexico, is a distance of from eight hundred to a thousand miles, in the nearest direction, and following the meanders of the river, not less in my opinion than twelve hundred miles. taking the distance generally from the mississippi to the georgia line, i should judge it to be about five hundred miles, and from the northernmost point of the state of georgia to the junction of the chatahoochee with the sea, cannot be far short of a thousand miles. this vast tract of country, in my humble conception, is too extensive for the purpose of local state government. indeed, sir, it could hardly be expected, over such an immense territory, interspersed with numerous tribes of indians, that even the executive functionaries of government could be able to perform their duty in the execution of their laws. that geographical limits, other than those which now divide the orleans and mississippi territories, might be designated, to comport more with the future convenience and prosperity of the country, cannot be denied. i would suggest for the reflection of gentlemen who have to act on this subject, the expediency of making the great river mississippi the high road between the eastern and western states, to be formed on its waters; that no one state should possess both banks of that river. in that event, to commence on the eastern shore at the mouth of the yazoo, in latitude ; thence in a direct line to the head-waters of the chatahoochee, thence to the sea, and along the coast, in a southwestern direction, to lake barrataria, thence up the chafalaga to its junction with the mississippi, and thence up that river to the mouth of the yazoo. this tract of country would include about three degrees of latitude; it would combine all the settlements on the eastern side of the mississippi, except the county of madison, which could be disposed of as the wisdom of congress might hereafter direct. there are various political considerations which operate in favor of the formation of such a state. the people of the territory of orleans are petitioning to become an independent state, and i for one hope the prayer of their petition will in substance be granted. it is said that the french population of the city of new orleans are unfriendly to the american government. that they have strong prejudices in favor of france. although, sir, i do not attach so much importance to that circumstance as some gentlemen do, i am willing to admit that french emigrants in louisiana feel an attachment to their native country. i do not blush to say that were i in france, or any other foreign country, i could never forget that i was born an american citizen. i could never relinquish my attachments to the land of freedom, in which i inhaled my first breath. judging therefore, of the feelings of others, by my own, i cannot doubt that many influential french inhabitants of new orleans entertain a predilection for the country which gave them birth. but, sir, within the limits which i have submitted to the consideration of the committee, there is an american population at least sufficient to neutralize every exotic prejudice which may exist in new orleans. a people whose origin, whose feelings and principles are american, and who are prepared to rally around the standard of the constitution, in every scene of difficulty and of danger. mr. miller's amendment was not agreed to. monday, january . _orleans territory._ the house resumed the consideration of the engrossed bill to enable the people of the territory of orleans to form a constitution and state government, and for the admission of such state into the union on an equal footing with the original states, and for other purposes. the bill being on its final passage-- mr. pitkin said he had heretofore stated that he had some objections to the bill, which he had intended to have stated to the house when the bill was capable of amendment, but that he had not an opportunity so to do. i have stated, said mr. p., that it was probable there would be some difficulty between orleans, when it becomes a state, and the united states, respecting the extent of the state westward. i stated that the united states, in consequence of the purchase of louisiana with the same extent that it had when spain and france possessed it, had claimed the territory as far as the river called rio bravo; that the negotiations on this subject between the governments of the united states and spain were probably unknown to many members of the house, and that it required a pretty accurate knowledge of them, of the extent of the claim, and of the geography of the country, to understand precisely what i meant. i stated that there was an extent of country between a meridional line passing through nacogdoches and rio bravo, of four or five hundred miles in width, which the united states had claimed as being their property. in the negotiations between the two countries, the united states offered to cede all the country between the rio bravo and the colorado running east of it to spain, on the condition that spain would cede to the united states all the territory west of the perdido. this proposition was rejected. our commissioners were instructed to assert our title as far as the rio bravo, or at least to the bay of st. bernard. it is so stated by the president of the united states in the introduction to the compilation of the land laws, in which he states that we unquestionably have a right to the country as far west as the sources of the rivers which fall into the mississippi, to the sources of the red river, arkansas, and missouri; that with respect to the territory immediately bounding on the gulf of mexico, we have claims to the "province of texas," which it is well known is a very large province. by the bill before us, according to this construction, jurisdiction is extended over this very province; and it may be, and in fact will be, in the power of the state of orleans to say that our limits extend so far, and therefore to extend their jurisdiction in like manner. in my apprehension, therefore, it is important, while we are making this territory a state, where the boundaries are disputed, to retain in our own hands the power of settling them. it is known that, by the law which passed providing for the government of the territory of orleans, we had liberty to alter the boundary before we made them a state, but not after. will it not be in the power of the new state to insist on their right to jurisdiction over the territory, at least as far west as the colorado, and to prevent the united states from ceding any part of it? for instance, sir, the united states may wish, as we have taken florida as far as the perdido, subject to future negotiation, to make this arrangement: to cede to spain a certain proportion west for east florida. now, sir, i ask when we have made this country a state if we can do this? i believe it will be said by every person that we cannot, after she becomes a state, alter the boundaries without her consent. i do apprehend, therefore, there will be difficulties on the subject hereafter, if the united states should attempt to settle the boundary in a manner disagreeable to the state; because, if they cannot extend their jurisdiction west of a meridional line passing through nacogdoches, the territory will be in extent east and west but about one hundred miles, and north and south about one hundred and twenty, and this will make them comparatively a small state. as the united states have settled a provisional line, to wit: a meridional line through nacogdoches, it should not be in the power of the new state to extend its jurisdiction beyond that line. provision might be made in this way: the western boundary might be made to conform to the provisional line; and a provision might then be made that there should be reserved to the united states the privilege of adding to it whatever land it should acquire westwardly. such a provision would leave us at liberty to settle the limits without the interference of that state, and without, i apprehend, much difficulty. this was done in relation to the state of ohio. unless the right had been reserved, the consent of the state would have been necessary to a cession, or other alteration of its boundary. such a course in this case will be perfectly safe for the united states, as well as for the new state. i wish we may so regulate the territory as there may not in future be any collision between the state and the united states. the province of texas is in the viceroyalty of new spain. we know that the viceroy sent his troops to oppose the passage of our troops, and a provisional line was established. new spain is very powerful, and i should be very sorry that the new state should have power to embroil the united states with it. i would ask the chairman of the committee who reported this bill, what were his views respecting the western boundary, and how far it was his idea that the new state should extend, and whether it would not comport with his ideas that the change which i have suggested should be made? i could have wished that the bill was in such a state of its progress that i could have moved an amendment; but, as it is, unless i am satisfied that we shall not be involved in difficulty by the consequences i have stated, i shall be unwilling to pass the bill, and must vote against it. mr. quincy.--mr. speaker, i address you, sir, with an anxiety and distress of mind with me wholly unprecedented. the friends of this bill seem to consider it as the exercise of a common power; as an ordinary affair; a mere municipal regulation which they expect to see pass without other questions than those concerning details. but, sir, the principle of this bill materially affects the liberties and rights of the whole people of the united states. to me, it appears that it would justify a revolution in this country; and that, in no great length of time, may produce it. when i see the zeal and perseverance with which this bill has been urged along its parliamentary path, when i know the local interests and associated projects, which combine to promote its success, all opposition to it seems manifestly unavailing. i am almost tempted to leave, without a struggle, my country to its fate. but, sir, while there is life, there is hope. so long as the fatal shaft has not yet sped, if heaven so will it, the bow may be broken, and the vigor of the mischief-meditating arm withered. if there be a man in this house, or nation, who cherishes the constitution under which we are assembled, as the chief stay of his hope, as the light which is destined to gladden his own day, and to soften even the gloom of the grave, by the prospect it sheds over his children, i fall not behind him in such sentiments. i will yield to no man in attachment to this constitution, in veneration for the sages who laid its foundations, in devotion to those principles which form its cement and constitute its proportions. what, then, must be my feelings; what ought to be the feelings of a man cherishing such sentiments, when he sees an act contemplated which lays ruin at the root of all these hopes? when he sees a principle of action about to be usurped, before the operation of which the bands of this constitution are no more than flax before the fire, or stubble before the whirlwind? when this bill passes, such an act is done, and such a principle usurped. mr. speaker, there is a great rule of human conduct, which he who honestly observes cannot err widely from the path of his sought duty. it is, to be very scrupulous concerning the principles you select as the test of your rights and obligations; to be very faithful in noticing the result of their application; and to be very fearless in tracing and exposing their immediate effects and distant consequences. under the sanction of this rule of conduct, i am compelled to declare it as my deliberate opinion, that, if this bill passes, the bonds of this union are virtually dissolved; that the states which compose it are free from their moral obligations, and that, as it will be the right of all, so it will be the duty of some, to prepare definitely for a separation--amicably if they can, violently if they must. mr. quincy was here called to order by mr. poindexter. mr. quincy repeated, and justified the remark he had made, which, to save all misapprehension, he committed to writing, in the following words: "if this bill passes, it is my deliberate opinion that it is virtually a dissolution of this union; that it will free the states from their moral obligation, and, as it will be the right of all, so it will be the duty of some, definitely to prepare for a separation, amicably if they can, violently if they must." after some little confusion, mr. poindexter required the decision of the speaker whether it was consistent with the propriety of debate, to use such an expression. he said it was radically wrong for any member to use arguments going to dissolve the government, and tumble this body itself to dust and ashes. it would be found, from the gentleman's statement of his language, that he had declared the right of any portion of the people to separate---- mr. quincy wished the speaker to decide, for if the gentleman was permitted to debate the question, he should lose one-half of his speech. the speaker decided that great latitude in debate was generally allowed; and that, by way of argument against a bill, the first part of the gentleman's observations was admissible; but the latter member of the sentence, viz.: "that it would be the duty of some states to prepare for a separation, amicably if they can, violently if they must," was contrary to the order of debate. mr. quincy appealed from his decision, and required the yeas and nays on the appeal. the question was stated thus: "is the decision of the speaker correct?" and decided-- yeas; nays. so the decision of the speaker was reversed; mr. quincy's observations were declared to be in order; and he proceeded. i rejoice, mr. speaker, at the result of this appeal. not from any personal consideration, but from the respect paid to the essential rights of the people, in one of their representatives. when i spoke of a separation of the states as resulting from the violation of the constitution, contemplated in this bill, i spoke of it as of a necessity, deeply to be deprecated; but as resulting from causes so certain and obvious, as to be absolutely inevitable when the effect of the principle is practically experienced. it is to preserve, to guard the constitution of my country, that i denounce this attempt. i would rouse the attention of gentlemen from the apathy with which they seem beset. these observations are not made in a corner; there is no low intrigue; no secret machinations. i am on the people's own ground--to them i appeal, concerning their own rights, their own liberties, their own intent in adopting this constitution. the voice i have uttered, at which gentlemen startle with such agitation, is no unfriendly voice. i intended it as a voice of warning. by this people, and by the event, if this bill passes, i am willing to be judged, whether it be not a voice of wisdom. the bill, which is now proposed to be passed, has this assumed principle for its basis--that the three branches of this national government, without recurrence to conventions of the people, in the states, or to the legislatures of the states, are authorized to admit new partners to a share of the political power, in countries out of the original limits of the united states. now, this assumed principle i maintain to be altogether without any sanction in the constitution. i declare it to be a manifest and atrocious usurpation of power; of a nature, dissolving, according to undeniable principles of moral law, the obligations of our national compact; and leading to all the awful consequences which flow from such a state of things. concerning this assumed principle, which is the basis of this bill, this is the general position on which i rest my argument--that if the authority, now proposed to be exercised, be delegated to the three branches of the government, by virtue of the constitution, it results either from its general nature, or from its particular provisions. i shall consider distinctly both these sources, in relation to this pretended power. touching the general nature of the instrument called the constitution of the united states, there is no obscurity--it has no fabled descent, like the palladium of ancient troy, from the heavens. its origin is not confused by the mists of time, or hidden by the darkness of past, unexplored ages; it is the fabric of our day. some now living, had a share in its construction--all of us stood by, and saw the rising of the edifice. there can be no doubt about its nature. it is a political compact. by whom? and about what? the preamble to the instrument will answer these questions: "we, the people of the united states, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution, for the united states of america." it is, "we, the people of the united states, for ourselves and our posterity;" not for the people of louisiana; nor for the people of new orleans, or of canada. none of these enter into the scope of the instrument; it embraces only "the united states of america." who those are, it may seem strange, in this place, to inquire. but truly, sir, our imaginations have, of late, been so accustomed to wander after new settlements to the very end of the earth, that it will not be time ill-spent to inquire what this phrase means, and what it includes. these are not terms adopted at hazard; they have reference to a state of things existing anterior to the constitution. when the people of the present united states began to contemplate a severance from their parent state, it was a long time before they fixed definitely the name by which they would be designated. in , they called themselves "the colonies and provinces of north america." in , "the representatives of the united colonies of north america." in the declaration of independence, "the representatives of the united states of america." and finally, in the articles of confederation, the style of the confederacy is declared to be "the united states of america." it was with reference to the old articles of confederation, and to preserve the identity and established individuality of their character, that the preamble to this constitution, not content, simply, with declaring that it is "we, the people of the united states," who enter into this compact, adds that it is for "the united states of america." concerning the territory contemplated by the people of the united states, in these general terms, there can be no dispute; it is settled by the treaty of peace, and included within the atlantic ocean, and st. croix, the lakes, and more precisely, so far as relates to the frontier, having relation to the present argument, within "a line to be drawn through the middle of the river mississippi, until it intersect the northernmost part of the thirty-first degree of north latitude to the river apalachicola, thence along the middle of this river to its junction with the flint river, thence straight to the head of the st. mary's river, and thence down the st. mary's to the atlantic ocean." i have been thus particular to draw the minds of gentlemen, distinctly, to the meaning of the terms used in the preamble; to the extent which "the united states" then included; and to the fact that neither new orleans nor louisiana were within the comprehension of the terms of this instrument. it is sufficient for the present branch of my argument to say, that there is nothing in the general nature of this compact from which the power contemplated to be exercised in this bill results. on the contrary, as the introduction of a new associate in political power implies, necessarily, a new division of power, and consequent diminution of the relative proportion of the former proprietors of it; there can, certainly, be nothing more obvious, than that from the general nature of the instrument no power can result to diminish and give away to strangers any proportion of the rights of the original partners. if such a power exists, it must be found, then, in the particular provisions in the constitution. the question now arising is, in which of these provisions is given the power to admit new states, to be created in territories, beyond the limits of the old united states. if it exists anywhere, it is either in the third section of the fourth article of the constitution, or in the treaty-making power. if it result from neither of these, it is not pretended to be found anywhere else. that part of the third section of the fourth article, on which the advocates of this bill rely, is the following: "new states may be admitted, by the congress, into this union; but no new states shall be formed or erected within the jurisdiction of any other state, nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned, as well as of the congress." i know, mr. speaker, that the first clause of this paragraph has been read, with all the superciliousness of a grammarian's triumph. "new states may be admitted, by the congress, into this union." accompanied with this most consequential inquiry: "is not this a new state to be admitted? and is not here an express authority?" i have no doubt this is a full and satisfactory argument to every one, who is content with the mere colors and superficies of things. and if we were now at the bar of some stall-fed justice, the inquiry would insure victory to the maker of it, to the manifest delight of the constables and suitors of his court. but, sir, we are now before the tribunal of the whole american people; reasoning concerning their liberties, their rights, their constitution. these are not to be made the victims of the inevitable obscurity of general terms; nor the sport of verbal criticism. the question is concerning the intent of the american people, the proprietors of the old united states, when they agreed to this article. dictionaries and spelling-books are, here, of no authority. neither johnson, nor walker, nor webster nor dilworth, has any voice in this matter. sir, the question concerns the proportion of power, reserved by this constitution, to every state in the union. have the three branches of this government a right, at will, to weaken and outweigh the influence, respectively secured to each state, in this compact, by introducing, at pleasure, new partners, situate beyond the old limits of the united states? the question has not relation merely to new orleans. the great objection is to the principle of the bill. if this bill be admitted, the whole space of louisiana, greater, it is said, than the entire extent of the old united states, will be a mighty theatre, in which this government assumes the right of exercising this unparalleled power. and it will be; there is no concealment, it is intended to be exercised. nor will it stop, until the very name and nature of the old partners be overwhelmed by new comers into the confederacy. sir, the question goes to the very root of the power and influence of the present members of this union. the real intent of this article is, therefore, an inquiry of most serious import; and is to be settled only by a recurrence to the known history and known relations of this people and their constitution. these, i maintain, support this position: that the terms "new states," in this article, do intend new political sovereignties, to be formed within the original limits of the united states; and do not intend new political sovereignties with territorial annexations, to be erected without the original limits of the united states. i undertake to support both branches of this position to the satisfaction of the people of these united states. as to any expectation of conviction on this floor, i know the nature of the ground and how hopeless any arguments are, which thwart a concerted course of measures. i recur, in the first place, to the evidence of history. this furnishes the following leading fact: that before, and at the time of the adoption of this constitution, the creation of new political sovereignties within the limits of the old united states was contemplated. among the records of the old congress will be found a resolution, passed as long ago as the th day of october, , contemplating the cession of unappropriated lands to the united states, accompanied by a provision that "they shall be disposed of for the common benefit of the united states, and be settled and formed into distinct republican states, which shall become members of the federal union, and have the same rights of sovereignty, freedom, and independence, as the other states." afterward, on the th of july, , the subject of "laying out and forming into states" the country lying northwest of the river ohio, came under the consideration of the same body; and another resolution was passed recommending to the legislature of virginia to revise their act of cession, so as to permit a more eligible division of that portion of territory derived from her; "which states," it proceeds to declare, "shall hereafter become members of the federal union, and have the same rights of sovereignty, freedom, and independence, as the original states, in conformity with the resolution of congress of the th of october, ." all the territories to which these resolutions had reference, were undeniably within the ancient limits of the united states. here, then, is a leading fact, that the article in the constitution had a condition of things, notorious at the time when it was adopted, upon which it was to act, and to meet the exigency resulting from which, such an article was requisite. that is to say: new states, within the limits of the united states, were contemplated at the time when the foundations of the constitution were laid. but we have another authority upon this point, which is, in truth, a cotemporaneous exposition of this article of the constitution. i allude to the resolution, passed on the d of july, , in the words following: [here the resolution was read.] in this resolution of the old congress, it is expressly declared, that the constitution of the united states having been adopted by nine states, an act of the old congress could have no effect to make kentucky a separate member of the union, and that, although they thought it expedient that it should be so admitted, yet that this could only be done under the provisions made in the new constitution. it is impossible to have a more direct contemporaneous evidence that the case contemplated in this article was that of the territories within the limits of the united states; yet the gentleman from north carolina, (mr. macon,) for whose integrity and independence i have very great respect, told us the other day, that "if this article had not territories within the limits of the old united states to act upon, it would be wholly without meaning. because the ordinance of the old congress had secured the right to the states within the old united states, and a provision for that object, in the new constitution, was wholly unnecessary." now, i will appeal to the gentleman's own candor, if the very reverse of the conclusion he draws is not the true one, after he has considered the following fact: that, by this ordinance of the old congress, it was declared, that the boundaries of the contemplated states, and the terms of their admission, should be, in certain particulars, specified in the ordinance, subject to the control of congress. now, as by the new constitution the old congress was about to be annihilated, it was absolutely necessary for the very fulfilment of this ordinance, that the new constitution should have this power for the admission of new states within the ancient limits, so that the ordinance of the old congress, far from showing the inutility of such a provision for the territories within the ancient limits, expressly proves the reverse, and is an evidence of its necessity to effect the object of the ordinance itself. i think there can be no more satisfactory evidence adduced or required of the first part of the position, that the terms "new states" did intend new political sovereignties within the limits of the old united states. for it is here shown, that the creation of such states, within the territorial limits fixed by the treaty of , had been contemplated; that the old congress itself expressly asserts that the new constitution gave the power for that object; that the nature of the old ordinance required such a power, for the purpose of carrying its provisions into effect, and that it has been from the time of the adoption of the federal constitution, unto this hour, applied exclusively to the admission of states, within the limits of the old united states, and was never attempted to be extended to any other object. now, having shown a purpose, at the time of the adoption of the constitution of the united states, sufficient to occupy the whole scope of the terms of the article, ought not the evidence be very strong to satisfy the mind, that the terms really intended something else, besides this obvious purpose; that it may be fairly extended to the entire circle of the globe, wherever title can be obtained by purchase, or conquest, and the new partners in the political power may be admitted at the mere discretion of this legislature, any where that it wills. a principle thus monstrous is asserted in this bill. but i think it may be made satisfactorily to appear not only that the terms "new states" in this article did mean political sovereignties to be formed within the original limits of the united states, as has just been shown, but, also, negatively, that it did not intend new political sovereignties, with territorial annexations, to be created without those original limits. this appears first from the very tenor of the article. all its limitations have respect to the creation of states within the original limits. two states shall not be joined; no new state shall be erected within the jurisdiction of any other state, without the consent of the legislatures of the states concerned as well as of congress. now, had foreign territories been contemplated, had the new habits, customs, manners, and language of other nations been in the idea of the framers of this constitution, would not some limitation have been devised, to guard against the abuse of a power, in its nature so enormous, and so obviously, when it occurred, calculated to excite just jealousy among the states, whose relative weight would be so essentially affected, by such an infusion at once of a mass of foreigners into their councils, and into all the rights of the country? the want of all limitation of such power would be a strong evidence, were others wanting, that the powers, now about to be exercised, never entered into the imagination of those thoughtful and prescient men, who constructed the fabric. but there is another most powerful argument against the extension of this article to embrace the right to create states without the original limits of the united states, deducible from the utter silence of all debates at the period of the adoption of the federal constitution, touching the power here proposed to be usurped. if ever there was a time in which the ingenuity of the greatest men of an age was taxed to find arguments in favor of and against any political measure, it was at the time of the adoption of this constitution. all the faculties of the human mind were, on the one side and the other, put upon their utmost stretch, to find the real and imaginary blessings or evils, likely to result from the proposed measure. now i call upon the advocates of this bill to point out, in all the debates of that period in any one publication, in any one newspaper of those times, a single intimation, by friend or foe to the constitution, approving or censuring it for containing the power here proposed to be usurped, or a single suggestion that it might be extended to such an object as is now proposed. i do not say that no such suggestion was ever made. but this i will say that i do not believe there is such a one any where to be found. certain i am, i have never been able to meet the shadow of such a suggestion, and i have made no inconsiderable research upon the point. such may exist--but until it be produced, we have a right to reason as though it had no existence. no, sir. the people of this country at that day had no idea of the territorial avidity of their successors. it was, on the contrary, an argument, urged against the success of the project, that the territory was too extensive for a republican form of government. but, now there is no limits to our ambitious hopes. we are about to cross the mississippi. the missouri and red river are but roads, on which our imagination travels to new lands and new states to be raised and admitted (under the power, now first usurped) into this union, among undiscovered lands in the west. but it has been suggested that the convention had canada in view, in this article, and the gentleman from north carolina told this house, that a member of the convention, as i understood him, either now, or lately a member of the senate, informed him that the article had that reference. sir, i have no doubt the gentleman from north carolina has had a communication such as he intimates. but, for myself, i have no sort of faith in these convenient recollections, suited to serve a turn, to furnish an apology for a party, or give color to a project. i do not deny, on the contrary i believe it very probable, that among the coursings of some discursive and craving fancy, such thoughts might be started; but that is not the question. was this an avowed object in the convention when it formed this article? did it enter into the conception of the people when its principles were discussed? sir, it did not, it could not. the very intention would have been a disgrace both to this people and the convention. what, sir! shall it be intimated; shall it for a moment be admitted, that the noblest and purest band of patriots this or any other country ever could boast, were engaged in machinating means for the dismemberment of the territories of a power to which they had pledged friendship, and the observance of all the obligations which grow out of a strict and perfect amity? the honor of our country forbids and disdains such a suggestion. but there is an argument stronger, even, than all those which have been produced, to be drawn from the nature of the power here proposed to be exercised. is it possible that such a power, if it had been intended to be given by the people, should be left dependent upon the effect of general expressions; and such too, as were obviously applicable to another subject; to a particular exigency contemplated at the time? sir, what is this power we propose now to usurp? nothing less than a power, changing all the proportion of the weight and influence possessed by the potent sovereignties composing this union. a stranger is to be introduced to an equal share, without their consent. upon a principle, pretended to be deduced from the constitution--this government, after this bill passes, may and will multiply foreign partners in power, at its own mere motion; at its irresponsible pleasure; in other words, as local interests, party passions, or ambitious views may suggest. it is a power that, from its nature, never could be delegated; never was delegated; and as it breaks down all the proportions of power guarantied by the constitution to the states, upon which their essential security depends, utterly annihilates the moral force of this political contract. would this people, so wisely vigilant concerning their rights, have transferred to congress a power to balance, at its will, the political weight of any one state, much more of all the states, by authorizing it to create new states at its pleasure, in foreign countries, not pretended to be within the scope of the constitution or the conception of the people, at the time of passing it? this is not so much a question concerning the exercise of sovereignty, as it is who shall be sovereign. whether the proprietors of the good old united states shall manage their own affairs in their own way; or whether they, and their constitution, and their political rights, shall be trampled under foot by foreigners introduced through a breach of the constitution. the proportion of the political weight of each sovereign state, constituting this union, depends upon the number of the states which have a voice under the compact. this number the constitution permits us to multiply at pleasure, within the limits of the original united states; observing only the expressed limitations in the constitution. but when in order to increase your power of augmenting this number you pass the old limits, you are guilty of a violation of the constitution in a fundamental point; and in one, also, which is totally inconsistent with the intent of the contract, and the safety of the states which established the association. what is the practical difference to the old partners, whether they hold their liberties at the will of a master, or whether, by admitting exterior states on an equal footing with the original states, arbiters are constituted, who by availing themselves of the contrariety of interests and views which in such a confederacy necessarily will arise, hold the balance among the parties which exist and govern us, by throwing themselves into the scale most conformable to their purposes? in both cases there is an effective despotism. but the last is the more galling, as we carry the chain in the name and gait of freemen. i have thus shown, and whether fairly, i am willing to be judged by the sound discretion of the american people, that the power, proposed to be usurped, in this bill, results neither from the general nature, nor the particular provisions, of the federal constitution; and that it is a palpable violation of it in a fundamental point; whence flow all the consequences i have intimated. the present president of the united states, when a member of the virginia convention for adopting the constitution, expressly declares that the treaty-making power has limitations; and he states this as one, "that it cannot alienate any essential right." now, is not here an essential right to be alienated? the right to that proportion of political power which the constitution has secured to every state, modified only by such internal increase of states as the existing limits of the territories at the time of the adoption of the constitution permitted. the debates of that period chiefly turned upon the competency of this power to bargain away any of the old states. it was agreed, at that time, that by this power old states within the ancient limits could not be sold from us. and i maintain that, by it, new states without the ancient limits cannot be saddled upon us. it was agreed, at that time, that the treaty-making power "could not cut off a limb." and i maintain, that neither has it the competency to clap a hump upon our shoulders. the fair proportions devised by the constitution are in both cases marred, and the fate and felicity of the political being, in material particulars, related to the essence of his constitution, affected. it was never pretended, by the most enthusiastic advocates for the extent of the treaty-making power, that it exceeded that of the king of great britain. yet, i ask, suppose that monarch should make a treaty, stipulating that hanover or hindostan should have a right of representation on the floor of parliament, would such a treaty be binding? no, sir; not, as i believe, if a house of commons and of lords could be found venal enough to agree to it. but although in that country the three branches of its legislature are called omnipotent, and the people might not deem themselves justified in resistance, yet here there is no apology of this kind; the limits of our power are distinctly marked; and when the three branches of this government usurp upon this constitution in particulars vital to the liberties of this people, the deed is at their peril. i have done with the constitutional argument. whether i have been able to convince any member of this house, i am ignorant--i had almost said indifferent. but this i will not say, because i am, indeed, deeply anxious to prevent the passage of this bill. of this i am certain, however, that when the dissension of this day is passed away, when party spirit shall no longer prevent the people of the united states from looking at the principle assumed in it, independent of gross and deceptive attachments and antipathies, that the ground here defended will be acknowledged as a high constitutional bulwark, and that the principles here advanced will be appreciated. i will add one word, touching the situation of new orleans. the provision of the treaty of , which stipulates that it shall be "admitted as soon as possible," does not therefore imply a violation of the constitution. there are ways in which this may constitutionally be effected--by an amendment of the constitution, or by reference to conventions of the people in the states. and i do suppose, that, in relation to the objects of the present bill, (with the people of new orleans,) no great difficulty would arise. considered as an important accommodation to the western states, there would be no violent objection to the measure. but this would not answer all the projects to which the principle of this bill, when once admitted, leads, and is intended to be applied. the whole extent of louisiana is to be cut up into independent states, to counterbalance and to paralyze whatever there is of influence in other quarters of the union. such a power, i am well aware that the people of the states would never grant you. and therefore, if you get it, the only way is by the mode adopted in this bill--by usurpation. the objection here urged is not a new one. i refer with great delicacy to the course pursued by any member of the other branch of the legislature; yet i have it from such authority that i have an entire belief of the fact, that our present minister in russia, then a member of that body, when the louisiana treaty was under the consideration of the senate, although he was in favor of the treaty, yet expressed great doubts on the ground of constitutionality, in relation to our control over the destinies of that people, and the manner and the principles on which they could be admitted into the union. and it does appear that he made two several motions in that body, having for their object, as avowed, and as gathered from their nature, an alteration in the constitution, to enable us to comply with the stipulations of that convention. i will add only a few words in relation to the moral and political consequences of usurping this power. i have said, that it would be a virtual dissolution of the union; and gentlemen express great sensibility at the expression. but the true source of terror is not the declaration i have made, but the deed you propose. is there a moral principle of public law better settled, or more conformable to the plainest suggestions of reason, than that the violation of a contract by one of the parties may be considered as exempting the other from its obligations? suppose, in private life, thirteen form a partnership, and ten of them undertake to admit a new partner without the concurrence of the other three, would it not be at their option to abandon the partnership, after so palpable an infringement of their rights? how much more, in the political partnership, where the admission of new associates, without previous authority, is so pregnant with obvious dangers and evils! again: it is settled as a principle of morality, among writers on public law, that no person can be obliged, beyond his intent at the time of the contract. now, who believes, who dare assert, that it was the intention of the people, when they adopted this constitution, to assign, eventually, to new orleans and louisiana, a portion of their political power, and to invest all the people those extensive regions might hereafter contain with an authority over themselves and their descendants? when you throw the weight of louisiana into the scale, you destroy the political equipoise contemplated at the time of forming the contract. can any man venture to affirm that the people did intend such a comprehension as you now, by construction, give it; or can it be concealed that, beyond its fair and acknowledged intent, such a compact has no moral force? if gentlemen are so alarmed at the bare mention of the consequences, let them abandon a measure which sooner or later will produce them. how long before the seeds of discontent will ripen, no man can foretell; but it is the part of wisdom not to multiply or scatter them. do you suppose the people of the northern and atlantic states will, or ought to, look on with patience and see representatives and senators from the red river and missouri pouring themselves upon this and the other floor, managing the concerns of a seaboard fifteen hundred miles at least from their residence, and having a preponderancy in councils, into which, constitutionally, they could never have been admitted? i have no hesitation upon this point. they neither will see it, nor ought to see it, with content. it is the part of a wise man to foresee danger, and to hide himself. this great usurpation, which creeps into this house under the plausible appearance of giving content to that important point, new orleans, starts up a gigantic power to control the nation. upon the actual condition of things, there is, there can be, no need of concealment. it is apparent to the blindest vision. by the course of nature, and conformable to the acknowledged principles of the constitution, the sceptre of power in this country is passing towards the northwest. sir, there is to this no objection. the right belongs to that quarter of the country; enjoy it; it is yours. use the powers granted as you please; but take care, in your haste after effectual dominion, not to overload the scales by heaping it with these new acquisitions. grasp not too eagerly at your purpose. in your speed after uncontrolled sway, trample not down this constitution. already the old states sink in the estimation of members, when brought into comparison with these new countries. we have been told that "new orleans was the most important point in the union." a place out of the union the most important place within it! we have been asked, "what are some of the small states when compared with the mississippi territory?" the gentleman from that territory (mr. poindexter) spoke the other day of the mississippi as "of a high road between" ----. good heavens, between what, mr. speaker? why, "the eastern and western states." so that all the northwestern territories, all the countries once the extreme western boundary of our union, are hereafter to be denominated eastern states. [mr. poindexter explained. he said that he had not said that the mississippi was to be the boundary between the eastern and western states. he had merely thrown out a hint, that, in erecting new states, it might be a good high-road between the states on its waters. his idea had not extended beyond the new states, on the waters of the mississippi.] i make no great point of this matter. the gentleman will find, in the national intelligencer, the terms to which i refer. there will be seen, i presume, what he has said, and what he has not said. the argument is not affected by the explanation. new states are intended to be formed beyond the mississippi. there is no limit to men's imaginations, on this subject, short of california and columbia river. when i said that the bill would justify a revolution, and would produce it, i spoke of its principle and its practical consequences. to this principle and those consequences, i would call the attention of this house and nation. if it be about to introduce a condition of things absolutely insupportable, it becomes wise and honest men to anticipate the evil, and to warn and prepare the people against the event. i have no hesitation on the subject. the extension of this principle to the states, contemplated beyond the mississippi, cannot, will not, and ought not to be borne. and the sooner the people contemplate the unavoidable result, the better; the more likely that convulsions may be prevented; the more hope that the evils may be palliated or removed. mr. speaker: what is this liberty of which so much is said? is it to walk about this earth, to breathe this air, and to partake the common blessings of god's providence? the beasts of the field and the birds of the air unite with us in such privileges as these. but man boasts a purer and more ethereal temperature. his mind grasps in its view the past and the future, as well as the present. we live not for ourselves alone. that which we call liberty, is that principle on which the essential security of our political condition depends. it results from the limitations of our political system, prescribed in the constitution. these limitations, so long as they are faithfully observed, maintain order, peace, and safety. when they are violated in essential particulars, all the concurrent spheres of authority rush against each other, and disorder, derangement, and convulsion are, sooner or later, the necessary consequences. with respect to this love of our union, concerning which so much sensibility is expressed, i have no fear about analyzing its nature. there is in it nothing of mystery. it depends upon the qualities of that union, and it results from its effects upon our and our country's happiness. it is valued for "that sober certainty of waking bliss" which it enables us to realize. it grows out of the affections, and has not, and cannot be made to have, any thing universal in its nature. sir, i confess it, the first public love of my heart is the commonwealth of massachusetts. there is my fireside; there are the tombs of my ancestors-- "low lies that land, yet blest with fruitful stores, strong are her sons, though rocky are her shores; and none, ah! none, so lovely to my sight, of all the lands which heaven o'erspreads with light." the love of this union grows out of this attachment to my native soil, and is rooted in it. i cherish it, because it affords the best external hope of her peace, her prosperity, her independence. i oppose this bill from no animosity to the people of new orleans, but from the deep conviction that it contains a principle incompatible with the liberties and safety of my country. i have no concealment of my opinion. the bill, if it passes, is a death-blow to the constitution. it may, afterwards, linger; but lingering, its fate will, at no very distant period, be consummated. tuesday, january . _orleans territory._ the house resumed the consideration of the bill authorizing the people of orleans territory to elect a convention to form a constitution preparatory to its admission into the union as a free and independent state--mr. quincy's motion for indefinite postponement still under consideration. mr. wright.--sir, this bill is not, in my judgment, a violation of the constitution, nor have i a fear that it is fraught with those direful consequences with which the gentleman from massachusetts (mr. quincy) threatens us. it will neither justify a dissolution of the union, nor lead any citizen attached to it, even amicably, much less forcibly, to the contemplation of it, notwithstanding the predictions of that gentleman. that we are authorized to erect new states, i will prove both by theory and practice, and for that purpose i will first invite your attention to the articles of confederation. by one section it is _expressly_ declared that canada may be permitted to enjoy all the benefits of the confederation on the same terms with the other states of the union. the thirteen states under this confederation conducted themselves safely through the war; but finding, in , that their requisitions had not been duly respected, and that new york had rejected some necessary commercial regulations, whereby their fiscal affairs were deranged, congress, by a resolution, resolved that a convention of states should be held for the express purpose of amending the articles of confederation. under this resolution the convention met, and proceeded to form the present constitution. thus it will appear that they were to form the new constitution not _ex pari materia_, but out of the very materials of the confederation. as a conclusive evidence, you will find a number of the articles in each instrument literally or substantially the same, and thereby be justified in giving a construction of the letter of the constitution, so as to respect the spirit of the confederation. by the third section of th article of the constitution, "new states may be admitted by congress into the union;" and by the next member of the same section, "the congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the united states"--hence i can have no doubt that congress have the power to admit new states into the union, that power being expressly given. it is however contended, that that power is limited to the admission only of those states that may be established within the limits of the united states, as demarcated by the treaty of peace. and the preamble to the constitution is relied on to establish that doctrine. "we, the people of the united states, &c., do establish this constitution for the united states of america." if this preamble is so imperious as to limit the positive provisions of the constitution, it will certainly limit itself to the states that formed the constitution--the negative of which has been determined. to prove which, here let me call your attention to the fact, that vermont was not a member of the confederation, nor was she a member of the convention that formed the constitution; she therefore was not one of the united states--was foreign as to them, and as distinctly governed as any other foreign power; she in was admitted into the union, and the laws of the united states extended to her. she was not one of the old states, and was correctly admitted under the power to admit new states. vermont was so repulsive to a confederacy with the united states, as not to be mentioned in the articles of confederation. can it be for a moment doubted that canada, expressly mentioned, might be now received as a new state, by becoming independent, or by purchase, when vermont has been admitted, who was not mentioned in the confederation? can there be an opinion that the framers of the constitution intended canada should be excluded from the benefits of the constitution, when before invited into it? when, by the express letter of the instrument, "new states may be admitted," and when vermont, not mentioned in the confederation, has been admitted? such a conclusion can never be the rational result of such premises. but it is objected, that, as this territory was obtained by treaty, and after the formation of the constitution, it cannot be admitted into the union as a state. i have shown that new states may be admitted, that vermont has been admitted, and that canada was expressly entitled under the confederation, and by the terms of the constitution may be admitted as a new state. "congress may admit new states into the union, and make all needful rules and regulations with respect to the territory or other property of the united states." this is certainly a territory, the property of the united states, and congress as certainly may, if needful, that is, expedient, admit it into the union. we are told, i presume to retard this measure, that the limits are in dispute, and that, if made a state, they cannot afterwards be settled by the united states. that this is not the case, i will prove by theory and by practice. by the treaty-making power vested in the president and the senate, they may treat on all subjects within the treaty-making power, with foreign nations; and where the limits of any foreign power adjoining the territory of the united states are not ascertained to their mutual satisfaction, they certainly may settle them by a treaty of limits. this is the practice and usage of all nations, and the united states by a treaty of limits with great britain, did settle the beginning of their northeastern limits, at the river st. croix, whereby they gave up seven miles to great britain, which was taken from a state--hence i presume no difficulty can arise on the subject. the question was then taken on the motion for indefinite postponement, and lost: yeas , nays . the main question was then taken that the said bill do pass, and resolved in the affirmative--yeas , nays . wednesday, january . _bank of the united states._ the house resolved itself into a committee of the whole on the bill to renew the charter of the bank of the united states. mr. burwell moved to strike out the first section. i have made this motion, sir, said mr. b., because it allows the greatest latitude of discussion upon the important points which are preliminary to the examination of the details. it tries the principle of the bill, and may save much tedious and useless labor. should a majority decide in favor of the bank of the united states, as an honest man i will aid in forming a system best adapted to the state of the country, and most subservient to the purposes of such an institution. the gentleman from connecticut (mr. mosely) has done justice to my conduct, and the fairness with which the subject has been treated. i have been anxious to present the question fairly, not from any doubt or indecision as to the course i should pursue, but from its magnitude, and the sensibility it has excited. it will be recollected by the committee, when the gentleman from pennsylvania presented the memorial upon which the secretary of the treasury founded his report, on that, as on all subsequent occasions, my opposition was manifested; and i will add that the particular attention which my duty has compelled me to bestow on the bank, has confirmed more strongly former impressions. the remarks i shall make are intended to show that congress possesses no power to incorporate a bank; to show its effect on the government, and to satisfy the committee that the exercise of the power, even if possessed, is inexpedient. while, sir, i feel the most ardent desire to consult the convenience of the government and promote the prosperity of the community in general, i have not lost sight of the limits within which i am restrained by the constitution of the united states and considerations of sound policy. it is my most deliberate conviction that the constitution of the country gives no authority to congress to incorporate a bank and endow the stockholders with chartered immunities; and even if its dissolution should produce ruin to the merchants, and, what is of equal importance, embarrassment to the government, they would not be paramount to the sacred obligation of supporting the constitution; though i am persuaded the dreadful evils which have been predicted from the annihilation of the bank will soon vanish, and that no material shock will be produced by that cause. the construction which the constitution has received by the various persons who have at different times administered it, has been rigid or liberal according to the confidence in the general or state governments. the unqualified extent given to its general powers, and the inclusion of incidental powers, as flowing from and belonging to particular enumerated grants, have constituted the essential points of difference among those who have divided upon the principles of the constitution. this has been the case not only in the exercise of authority where the right was questionable, but in cases where the right was undeniable, tending by its operation to increase the weight of the general government. in giving to the constitution that construction which sound policy requires, and a just regard to the harmony of the states and the perpetuation of their union dictates, i cannot find any part of it authorizing the exercise of a power which, from its nature, is obnoxious, its tendency alarming, and its influence in the hands of those who manage its concerns irresistible. the power to establish a bank cannot be deduced from the general phrases "to provide for the common defence and general welfare," because they merely announce the object for which the general government was instituted. the only means by which this object is to be attained are specifically enumerated in the constitution, and if they are not ample, it is a defect which congress are not competent to supply. i think this inference the stronger, inasmuch as those means were granted to us by those who had acted under the confederation and experienced its defects, and knew precisely to what extent power was requisite to provide for the common defence and general welfare. in relation to this particular subject, the proceedings of the convention itself furnish the plainest evidence, by rejecting the proposition to vest in congress the right to grant incorporations. i readily admit the motive of deliberative bodies cannot always be known. various considerations might have operated. they might have supposed the power already vested. but, it is incumbent on those who can place faith in an interpretation so repugnant to the cautious and guarded phraseology of the instrument, to demonstrate it. if the right to incorporate exists, it is a general grant of power, equally applicable to all the objects of incorporation, and cannot be assumed as a means to carry into effect any particular grant of authority. to my mind, it is much more natural to suppose a power to create monopolies had been surrendered, to quiet the fears of those who saw in the constitution the germ which would sooner or later palsy the vitals of the state authority. if the general phrases are not explained in the manner just mentioned, and powers so extensive and important are derived from them, it would be ridiculous to consider the jurisdiction of congress restricted; they would confer equal authority to establish monopolies in all the various branches of individual industry and commercial enterprise. sir, i will conclude this part of the subject by reminding you how essential it is, when we are giving an interpretation to the constitution, to which the states are parties, to assume only what clearly belongs to us. moderation will inspire confidence, selfishness will excite disgust and suspicion. the parts of the constitution which bear any analogy to this subject, are st. congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare, &c. d. to borrow money on the credit of the united states. d. to regulate commerce with foreign nations, and among the several states, and with indian tribes. and th. to make all laws which shall be necessary and proper to carry the foregoing powers, and all other powers vested by the constitution in the general government, into effect. it will not be denied that, if the establishment of a bank comes within the meaning of the power to lay and collect taxes, to pay the debts of the united states, and to regulate commerce, or is necessary and proper to carry the foregoing powers into effect, it would be a fair subject for legislation by congress. but can any one pretend that a bank would be a mode contemplated by the constitution to lay and collect taxes on the people for the purpose of raising revenue? would it comport with that wise principle of uniformity, and those guarded restrictions against unequal burdens on the people, which constitute the most valuable safeguard to the citizen? to understand these terms we must give them a meaning which has been affixed by their usual import. when we speak of the power to lay taxes, we understand by it a demand of money from the community, regulated by fixed and equitable principles, indiscriminate as to persons, and the species of property taxed. to suppose that every law which imposed burdens or brought money into the treasury was constitutional, would destroy our equal system of government, and substitute a capricious despotism. it would revive the exploded doctrine of free gifts, benevolences, and that shameful train of extortions practised by the old governments of europe. does it fall within the power to pay the debts of the united states? this clause relates entirely to the application of the funds after they have been accumulated; it is in conformity with that article which pledges the public faith for debts which had been contracted, as well as those which might be created in pursuance of the authority to borrow money upon the faith of the united states. if the power to incorporate a bank grew out of the obligation to pay the debts of the united states, its charter should be so worded as to cease whenever they were extinguished; and it would be no longer for congress to fix a definite period for its expiration. if the right of incorporation was ever meant to be given, it would most naturally follow from the regulation of commerce; yet, no one has contended congress could create insurance companies within the states. those who contend the bank is constitutional, consider it as necessary and proper in collecting the revenue. that it may be an useful instrument, i do not deny. it forms depositories convenient to the government; but, you should recollect, depositories equally safe and convenient can be procured without being purchased at the expense of exorbitant and invidious privileges to a particular class in the community. i apprehend the constitution means something extremely different when it empowers the general government to collect taxes; it relates exclusively to the authority thus given to congress of employing compulsory process in coercing the payment of taxes; it enables congress to create, within the jurisdiction of the states, officers of the revenue, and, through them, to exercise over the property of the citizens a concurrent jurisdiction, from which they otherwise would be precluded, and from which they had been precluded before the adoption of the constitution; it enables them to impose penalties and forfeitures, and to inflict punishment for resistance to their authority. but, sir, admit for a moment the bank may be formed to collect the revenue, ought it not to be exclusively used for that object? whence the power to make it an instrument of commerce? why invest it with a capital immense in amount, and sovereign in its control over the external and internal commerce of the country? sir, i must again call your attention to the limited nature of our government; we must administer it as we find it, and not as we think it ought to be. under this view of the subject, so long as i understand the right to "lay taxes" to consist in drawing supplies from the people for public purposes, and not to tax one portion of the community for the benefit of another, and "to collect them," the right to enforce payment, i cannot construe them to authorize the establishment of a bank. sir, a bank has been improperly considered a means of executing some power exclusively given to congress. the nature of incorporations is so clearly a distinct class of political power, that, before they can be converted into means incidental to an object without the jurisdiction of the general government, they must be shown to be absolutely necessary. permit me to ask, how has it been ascertained that a bank is necessary to the operations of the government? has the experiment been tried? upon a question involving a breach of the constitution, it would be safer to be guided by experience than conjecture. sir, i am well aware that i can add nothing new upon the constitutional points. the subject was more thoroughly examined in , and more ably elucidated than any other since the adoption of the government. the celebrated speech of mr. madison, to which i ascribe my conviction, has been recently presented to us in the newspapers, and gentlemen must be familiar with it. i cannot give additional weight to the arguments, but i thought it proper to call the attention of the committee to that part of the subject by the remarks i have made. i said, sir, it must be shown that the bank is necessary to the operations of the government--without its aid our fiscal concerns cannot be managed. so far from subscribing to the necessity of the bank, i believe the revenue would be equally safe in the state banks, and could be distributed with inconsiderable difficulty. the revenue received in most of the states is nearly equal to the expenditure within them, and when a deficiency occurred in any one, it could be supplied by arrangements with the different banks, by transportation, or inland bills of exchange, in the manner that the public engagements are fulfilled abroad. i will venture to assert the secretary of the treasury will find no difficulty in contracting with individuals and corporate institutions, upon the most ample security, to transfer the public revenue upon terms equally advantageous to the united states. among the several states commercial intercourse is great, and daily increasing; the constant traffic which the different portions of the country maintain with one another, will give facility to the operations of the government, and obviate the obstacles which are anticipated; the very commerce which enables the treasury to remit with ease immense sums to every part of europe is the result of this interchange among the states, and insures equal facility at home. where, then, is the necessity for this bank? the accommodation of the bank to the government in times of emergency, and the use of its resources to support public credit, have been urged as motives for its establishment; how far such considerations weaken constitutional objections, it is needless to state. if, sir, the bank becomes a source of supply to the government to an adequate extent, it ceases to be one to the merchants. it therefore cannot answer in both capacities. the same necessity which throws the government upon the charity of the banks renders it incapable of discharging the obligation, and while the funds of the institution are locked up in the government, its commercial functions must cease. the relief which sudden and temporary embarrassments require, can, at all times, be administered by the state banks, and, therefore, supersedes the necessity of aid from this bank. whenever, by disasters, the ordinary sources of supply are exhausted, or the unavoidable objects of expenditure exceed the revenue, a more copious and permanent aliment will be found in the wealth and capital of the citizens than by loans from banks. instead of diverting the active and productive capital from useful channels, the sluggish and inert mass will be drawn forth in its aid, to support public credit and cherish private enterprise. but, sir, is it prudent to rely upon an institution that may refuse you assistance? what will be the influence of such an institution on the government, and the country at large? it cannot escape your recollection that the establishment of the bank of the united states was the origin of a system which assumed as its basis the enlargement of the national jurisdiction. whether the principles of expediency to which it owes its birth be regarded, or the overweening influence it established over the moneyed institutions and merchants of the states, the charge, to say the least, is plausible. the close and intimate connection between the government and bank--the dependence of the former for loans, and the latter for public deposits, have given the executive branch its full share of influence and odium--shows incontestably it was created to augment the power of the general government, and the executive in particular. yes, sir, it was the commencement of those political animosities which have poisoned the sources of social intercourse; it was the origin of that doctrine of constructive power which abrogates the constitution and nullifies the restrictions imposed upon congress. so long as it exists, the body politic will experience the agitations and convulsive throes of well-grounded jealousy in the states. sir, in the administration of this government two things alone are necessary to insure its durability. you must first avoid every measure which will produce uneasiness among the states, or, second, that will extend the jurisdiction of the united states government to subjects purely local. i do not mean that the rightful authority of congress is to be abandoned for fear of giving offence, but, whenever called on to take a step which will produce uneasiness, you should be perfectly satisfied the letter and spirit of the constitution bear you out. do not gentlemen perceive the tendency of this measure to involve us with the states upon delicate points? has not the united states' bank produced serious alarm? will not the alarm be increased by its continuance at this time? yes, sir, some of the states have already taxed this institution, others have waited under the expectation we shall render a collision unnecessary. suppose the charter renewed, and the stockholders should be taxed in such a manner as to destroy, virtually, the privileges you have guarantied to them. are you to leave them unprotected, or will you draw the sword in their behalf? while you have time, avoid a situation not less perilous than the most serious foreign war. since the establishment of the bank, the states have created banks--their people have accumulated capital, and they will not tamely witness the perpetuation of an institution whose strength can at any moment overthrow whatever state bank they may mark for destruction. however paradoxical it may appear, i consider the general government strengthened by narrowing its jurisdiction; it will produce disunion whenever they interfere with local concerns. the habits, local interest, and passions of this country vary, and no one is a competent judge of what will suit the feelings of the state out of which he lives. but, sir, there are general principles in which our feelings and interests are identified; there are subjects upon which we may safely act, and trust to the co-operation of every man and state in the union. does the bank affect the people locally? the answer is obvious: it not only undertakes to fix the amount of capital, but interferes with the rights of property most essentially--it may change the fundamental principles of state law as to the liability of property for debts, and the mode of recovering them. let me caution you against the renewal of the charter; it is pregnant with the most baneful consequences to the tranquillity of the country. is it not better to sacrifice this golden calf upon the altar of concord, restore confidence and harmony among individuals as well as states, and to reunite the lovers of the constitution? in the report of the secretary of the treasury, the convenience of obtaining loans from the bank is mentioned as an inducement to establish a national bank. to me the abuse of this convenience is more dreaded than any other evil which will follow from the measure. where have you seen a national bank, connected with the government, which has not ultimately ruined the circulating medium of the nation? it is a notorious fact that money has depreciated seriously, from the unlimited circulation of paper, and if the government should be compelled, by necessity, to use the funds of the bank, they must permit the increased circulation of its paper, although its money capital remains stationary. in this situation the government must tolerate an operation which will increase the evil of which we complain. the example of england is a salutary monition to us, and we ought to profit from it. in that country there was a time when the stability of the bank was a national phrase, "as good as the bank of england." how is it now? the funds of the bank have been borrowed by the government--its paper circulation increased, and parliament has been compelled to make it a tender for the payment of all contracts. who, sir, can estimate the complicated mischiefs of a depreciated paper currency, without specie for its redemption? should we be involved in war, or our property seized abroad, nothing can present universal bankruptcy--one wide-spread ruin will pervade the continent. at this time the country is inundated with paper bottomed upon the whole floating and real property of the community: should an alarm exist, can these funds be converted into money to redeem its credit? certainly not. will it not be prudent to diminish the extent of this evil by putting down this bank which is the fountain from which the whole system flows? it is of little importance, as it regards the internal trade of a country, what constitutes the representation of property. paper, iron, or any thing else, which passes current, will answer every purpose of barter and trade; but, in its commerce abroad, it is indispensable that the circulating medium should be equally valuable and readily acknowledged among all commercial nations; otherwise, all the operations of commerce, carried on with money, will be abandoned or prosecuted under disadvantages equal to the difference in the value of the currency at home and abroad. in countries actively engaged in business, this branch of trade is not only great in amount, but by far the most profitable. how unwise, therefore, not only to substitute for the precious metals paper currency, whose value is confined to the united states, but to augment the quantity until it depreciates even among ourselves. thursday, january . _bank of the united states._ the house resolved itself into a committee of the whole on the bill for renewing the charter of the bank of the united states--the motion for striking out the first section still under consideration. mr. fisk.--mr. chairman: i regret that we are called upon to vote for or against striking out the first section of this bill, at this time. i could have wished that, upon a bill of so much interest and importance, we could have proceeded to have filled the blanks, and made such amendments as would have obviated many objections which may be urged against it in its present form. i am not prepared to give my vote in favor of a renewal of the charter of the bank of the united states, either upon the terms upon which it was originally granted, or in the manner contemplated by this bill; yet, upon conditions less objectionable, i should feel myself bound to vote in favor of a renewal. but the question presented upon this motion, is not upon what terms this charter shall be renewed, but whether it shall be renewed upon any terms, subject to any conditions congress may impose. in this view, i consider it the most important subject upon which this congress will be required to act. it is determining a question which is connected with our finances, with the circulating medium of the country, and with our agricultural, commercial, and manufacturing interests; and, as such, it cannot but be interesting to every class of our citizens. the interests and prosperity of the united states are not only intimately, but inseparably, connected with trade. the market of the farmer depends greatly upon the merchant and the shipper. and the price and demand of every article of produce are in a great degree regulated by the difficulties or facilities of payment. let the difficulty of paying be increased, and the price of produce immediately falls; for the demand for exportation becomes very limited, the markets are overstocked, and prices reduced. any sudden check to our commerce, whether produced by our own municipal regulations, or the outrages of foreign powers, checks the market and the price of produce; so that not only the merchants, but the farmers feel its effects. i scarcely need recur to the history of the times when trade was principally suspended in this country, to show how severely the suspension operated upon every class of our citizens, and in every part of the country. this period in our political annals will be long remembered. so great was the distress in some states, and agricultural states, too, that their legislatures deemed it necessary, for the protection of the debtor from the power of his creditor, to stay the administration of justice, and prohibit by statute the issuing of an execution for the collection of any debt. this proves the connection which subsists between the two great agricultural and commercial interests of this country. agriculture, commerce, and manufactures constitute the source of our wealth, revenue, and prosperity. to foster and cherish the principles upon which rest our existing hopes and future prospects, can never be a question of doubtful policy with a wise and patriotic legislature. we have seen that commerce is essential to our interests; but commerce will not flourish without credit. it never has prospered independent of credit. as credit is essential to trade, so is punctuality to support credit. look at the business of any commercial people, and see how much of it is done upon credit; and see the integrity and fidelity with which punctuality is maintained in order to support their credit. for several centuries past, banks have been the successful medium through which credit has not only been preserved, but great wealth acquired. this assertion is warranted by the history of these institutions, and of the countries where they have been patronized. the first bank established in europe, was at genoa, in --four hundred and four years ago; this was soon followed by one at venice. the bank of amsterdam was established in , and shortly after those of hamburg and rotterdam; and the bank of england in ; the royal bank at paris in ; the bank of north america in --a memorable period in our history--and the bank of the united states in . all these different institutions show, that enlightened legislators have entertained but one opinion upon this subject both in europe and america for the last four hundred years. they have seen and acknowledged their utility. banks have long since been considered not only essentially useful in the transaction of commercial concerns, but as highly necessary to aid the fiscal operations of government. and a more unanswerable argument cannot be urged in favor of their general utility than their uniform success; to this may be added the prosperity of the people and the countries where banks have been supported. their immediate advantages are, a convenient circulating medium; the safe depository they afford for cash and funds. and they serve to keep the standard of money steady and correct; to insure punctuality; to preserve credit; to inspire confidence, and to promote a spirit of industry and enterprise. they are not, as many have supposed, in their nature hostile to government and dangerous to liberty. they rather form a barrier to tyranny and oppression. their principal business is to lend money at the common rate of interest, and thus prevent usury. the owners of banks are generally rich men, who have not only their personal liberty, but a large property to risk, by sedition, treason, and rebellion. it is their interest to resist oppression. we need scarcely point to the continent of europe for proof of the fact, when we assert, that trade and banks cannot flourish where despotism prevails. despotic power generally ruins trade and banks, but no instance occurs in history where banks, not under the control of government, have ruined a state. a bank owned by government, and under its command, would be an engine dangerous to the people. but when owned by individuals, neither the people nor the government have any thing to fear from it. it is then dependent on both for its business, prosperity, and usefulness. with the evidence which both history and experience offer to our reflection, we cannot doubt the utility of banks, nor deny but that they have been beneficial to us. and we are justified in the conclusion, that, under proper regulations, they may subserve the best interests of the people of the united states. they are now in successful operation in almost every state in the union, and that they have been useful, the present prosperous state of the country abundantly proves. we enjoy as perfect security for life, liberty, and property, as any people under any government ever did. these are the great objects of a good government. and we may triumphantly ask, where is the nation or people that enjoy these with more freedom and safety than the american people? a parallel for our liberty and prosperity, for the last twenty years, is not to be found in the history of man. our wealth, population, and resources, have increased beyond what any one would have calculated or imagined, and beyond what strangers and foreigners now believe. industry, wealth, and contentment, pervade every quarter of our country, and poverty and oppression are unknown to our citizens. in , the year this bank was incorporated, our exports amounted to about eighteen millions of dollars; and in , they had increased to about seventy-six millions, gaining in thirteen years fifty-eight millions; and our tonnage in about the same proportion. much of this prosperity is to be attributed to the active capital which has excited industry, and a spirit of enterprise among us, and the activity of this capital has been in a great degree created and promoted by the bank of the united states. its operations have been extensive in all our trading towns. it has aided in loans and discounts, and assisted in the collection, safe-keeping, and transmission of our revenues. it has been the depository of our treasury, and is now become incorporated with the administration of the fiscal department of our government. the connection which it has formed with almost every branch of business in the country, is not slight and trifling, and so easily to be severed as some seem to believe. its operations are deeply interwoven with the dealings and concerns of all the men of business in the united states. with a capital of ten millions, it has furnished accommodations of fifteen millions a year. this has been employed principally in trade; in making prompt and cash payments to our farmers for their produce. this, again, has furnished to our citizens a ready and profitable market for every article of produce. these high profits of a good market have gone into the hands of the farmer, to cultivate, improve, and enrich the country. and travel through any state in the union, and their effects may be readily seen, affording a prospect, consoling and elevating to the philanthropist and the patriot. the land is highly cultivated, good buildings, turnpike roads, bridges, and other expensive improvement, indicate the wealth of our citizens, and the prosperity of the country. money has been freely circulated, trade has been active, produce high, and our country has been improved by these unexampled advantages to a degree far beyond what the most sanguine calculations, twenty years ago, could have anticipated. and yet, sir, we are gravely told that this bank has nearly ruined the country; that it is threatening our best interests with destruction. as well might gentlemen tell us that total darkness prevails at noon-day, or that the sun, in his meridian splendor, affords neither light nor heat to any part of this globe. the principal portion of the trade and business of the united states has been conducted by a paper medium; metallic has scarcely been seen. the amount of this circulating medium is, say fifty millions. now what is proposed by denying a renewal of the united states' bank charter? that this bank shall close its concerns, and of course stop all its accommodations. this must necessarily check and change at least one-third of the circulating medium of the country. it will undeniably require $ , , to be directed to one operation, and for a time to one point--for the capital is $ , , ; this is to be collected to divide among the stockholders. there are $ , , due to the bank; this must be collected. this will occasion a demand for this amount from other sources; it must be paid. and the $ , , in the bank makes the sum of $ , , , which must be suddenly called in. the effect this will have upon the various interests in the country can neither be described nor conceived. it must inevitably give a general and heavy shock to all paper credit; this credit, so much and profitably in operation, must receive a severe, if not a mortal wound. and what substitute have we for this when it shall be destroyed? silver and gold coin cannot be relied on. there is not from the best estimate an amount to exceed $ , , specie in all our cities and trading towns, and this will be collected by this bank. the price of all stocks, and every kind of produce and species of property must suffer a great depression, for a scarcity of money enhances its value, and consequently depresses the value of every other species of property. that this sudden, if not total change in our system, must occasion great embarrassment, produce failures, disappointments, and distress, among our citizens, is certain. put down this bank, and how then are your revenues to be collected? through the medium of the state banks? you do what no prudent man, in his individual concerns, would think of doing. you discard a faithful, honest, responsible agent, whose integrity and fidelity you have known for twenty years, and you place your estate in the hands and at the disposal of twenty or thirty entire strangers, of whose character and responsibility you know nothing, nor have the means of acquiring any knowledge, and over whose conduct you have no control. should an individual act thus with his property, he would be deemed to have lost all regard for it, if not considered a madman. in resorting to the state banks, we are offering the amount of our revenue as a bounty for intrigues, cabals, and factions, through the country. in almost every state there are a number of banks, and each will endeavor to get the revenue collected in that state, to keep and trade with. it must be given to one, or divided among them all. if one is selected as the favorite, all the rest become jealous, dissatisfied, and exert their capital and influence against the favorite bank and its patron, the government. this will awaken a spirit of faction in every state, yet unknown in this country. if all are to be gratified in their request for the deposits, the government must open separate accounts with all the different banks in the country, to the amount of fifty or sixty; and new companies will be formed, and new applicants request to divide the business, and share the profits. indeed, there will be no end to the scenes of speculation and intrigue, which will soon appear, if this course is adopted by the government. mr. seybert.--it may be said that this subject has been exhausted by the discussions of the ablest politicians of the country. i will premise, the remarks which i shall offer are intended solely to justify the vote which it is my intention to give on this momentous occasion. the question pending the united states' bank has excited a peculiar interest throughout this nation, more especially in our seaports. the dissolution of this institution, which from its limitation, will expire on the fourth of march next, has been portrayed in colors of the darkest shades, and the distresses which many maintain will be consequent to that event, call seriously for a fair and deliberate investigation. i hope, sir, i shall be pardoned for imposing on the patience of the house, when it is recollected that the community which i represent have employed four-tenths of the capital stock of the united states' bank. if evil consequences are to attend the dissolution of this establishment, or if beneficial results proceed from its continuance, in either case i must feel myself essentially interested; it is therefore my wish to be distinctly understood upon the important principles which have connection with the great question now before us. at the last session of congress, i presented the memorial of the president, directors, and stockholders of the bank of the united states; at that time i entertained no positive opinion on the subject; the discussions which took place in the committee to whom the memorial was referred, necessarily, as a duty on my part, excited that attention which the importance of the question imperiously demanded. under circumstances of doubt, i voted in favor of reporting a resolution in support of the bank, for the purpose of giving to the establishment every chance which reason could urge; at the same time reserving to myself the right to pronounce a final decision, according as policy and expediency, but more especially as principle should dictate. i will admit, sir, that this is not the time or place to institute the general inquiry, whether banks are or are not beneficial to a nation? because, whether the charter of the united states' bank be renewed or not, the several states, who have the unquestioned authority to incorporate bank establishments, have already created many, which it is not in our power to control. i do not hesitate to declare, though many persons in the united states are decidedly opposed to a banking system, under every possible circumstance, i am not of this class. experience has proved, in a manner very satisfactory to my mind, the advantages which are derived from the banks when they are impartially directed, and when the accommodation afforded by them is prudently employed; the great difficulty seems to be to confine the system within its proper limits. i understand the proposition as applicable to the agricultural, manufacturing, and commercial interests of the united states. for my proofs of this proposition, i will not rely upon the famous bank of st. george, at genoa, whose authority, by a gentleman from new york, (mr. fisk,) has been considered of much weight. i will recall to the mind of my friend the remark of an intelligent traveller, who, when he visited this bank of antiquity, exclaimed: here lies concealed the enigma, whether the bank possesses millions of millions, or whether it is indebted millions of millions! he concludes, upon this important secret rests the safety of the state. unhappy state, say i, whose safety depends upon a secret concealed within the vaults of a bank. perhaps to a development of this secret may we attribute the present servile condition of the people of the once far-famed and powerful republic of genoa. sir, i am decidedly opposed to a prominent, and what to me appears to be a very dangerous feature in the bill now under consideration. i allude to the eighth section, which admits of an increase of the present capital stock of the bank. adopt this provision, you will thereby create an herculean power, which will have at its mercy all the minor institutions of the states; thus constituted, it can oppress and destroy them, as whim or interest may dictate. the steps which have been taken preparatory to a dissolution of the present bank, it is said, occasion much embarrassment, and threaten with ruin many of our citizens; if the present capital of ten millions can thus affect society, who will pretend to accumulate present evils, or risk entailing misery on posterity, solely for the purpose of a temporary gain to the government? in this question pennsylvania is deeply concerned; she has several millions of dollars invested in her banks; this to her is a valuable source of revenue; upon this may she predicate much of her future prosperity; hence will she derive the funds requisite for future internal improvements; but if you fill up the blanks in this section with a considerable sum, all these prospects will be blasted forever; you will thereby destroy the tree from whose ramifications were to emanate the blessings of peace and the sinews of war. those of her representatives who may deem it politic and constitutional to vote for a continuance of the charter of the united states' bank, ought surely to oppose any increase of the present capital; we have been told that that which now exists has been found sufficient for all purposes, at a time when our commerce was much more extensive than we have reason to suppose will soon again be the case. the history of the banks in our country informs us, that the one usually termed the bank of north america was the first establishment of the kind which received the sanction of the government. this institution was incorporated by an act of congress, in the month of may, , under the authority of the "articles of confederation." the present bank of the united states was incorporated by an act of congress, on the th of february, , during the operation of the present constitution of the united states. without an attempt to examine every hypothesis, which has been or which might be proposed, respecting the constitutionality of the principle, i will content myself with the statement of the case, such as it appears to my mind. the first public act which i performed as a member of the congress of the united states, was, to swear solemnly that i would support the constitution of the united states. it therefore is my duty to examine and consider its precepts, according to the best of my ability. the "articles of confederation" and the present constitution of the united states do not differ as regards any power delegated by the states to congress, touching charters of incorporation. i can never persuade myself that the constitution was intended other than to have a definite meaning; or that it was ever contemplated to speak an equivocal language; ambiguity arises solely from the misconceptions of its interpreters; it is very plain and of easy comprehension, especially as it relates to the present question, since it is totally silent on the right to create corporations--its wisdom is further illustrated by the special provision for the only exclusive privilege which is consistent with a free and equal government, and that is in favor of genius. the powers delegated by the states are special and defined, and, it is expressly declared by the constitution, that "the powers not delegated to the united states by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." this language needs no interpretation. i cannot for a moment permit myself to suppose, that the patriots who were tested during the long-continued uncertainty of the most important events of our revolutionary period, and to whom was ultimately assigned the right and power to construct the instrument which is to guide us in the political labyrinth--that they intended this their great work should alone be explicable by that refined reasoning to which common sense is a stranger, i never can admit. surely that which they framed for the good and security of every individual in the nation, must be expressed in a manner to be understood by ordinary men, and those whom it was intended to direct. sir, if simplicity was not originally contemplated by the framers of the constitution, why the imposition on the people in publishing it to the world? was it not a prodigal waste of labor and materials, to furnish every citizen of our country with a copy of that which can only be understood by professional men, or such as are eminently skilled in scholastic research? it had better remain a secret, concealed amongst the musty rolls in the archives of state, than be a puzzle for mankind. as long as this instrument is preserved pure and untarnished, it will receive a becoming respect from your fellow-citizens--it will be regarded as "the stupendous fabric of human invention." remember, the present argument, in several important points of view, affects posterity in common with ourselves. you had better commit the unintelligible jargon to the flames, than by the agency of construction, neutralize wisdom by folly. sir, if we have a constitution which the people cannot understand, i then say, cut the original into slips, and provide the means for a better; or, if that is not to be done, and we are to be ruled by the iron hand of power, in that case, as one of the american people, i will pray you to be graciously pleased to grant a plain bill of rights for our better government. if we look back, and attentively view the occurrences which took place, when the law incorporating the present bank of the united states was enacted, we shall find our reasoning supported and confirmed by many important circumstances; we shall then perceive, that the act of incorporation was opposed on constitutional ground, by men who were and continue to be esteemed for their talents, political skill, judicial knowledge, probity and patriotism; and it has been admitted, that the arguments formerly urged are unanswerable. that the power to create corporations was never intended to be ceded on the part of the united states, is proved beyond all manner of contradiction; for we are told by the highest authority, by one who was a member of the general convention, that it had been proposed to cede to congress the power to create corporations, and that the proposition was rejected, after a deliberate discussion. in my opinion this decision is in proof of the sagacity and wisdom of those who made it; it was highly justifiable to retain this power to be exercised by the states; because, corporations are generally founded on circumstances, which are entirely local--as such, they can be better understood by the legislatures of the respective states, than by that of the general government. the experience of every session proves that the decisions of congress vary with the men who at different times compose that body; therefore, the act of february, , can have no force in settling the principle contended for. i have heard it urged, that the states have recognized the constitutionality of the united states' bank, by their laws. i know of no law in any of the states, which declares this charter constitutional. were it even proved, that several of the states had published this declaration, with me it would signify nothing, unless the sanction of two thirds of the states was thus had. on a former occasion, several of the states were induced, from peculiar circumstances, to relinquish for a time their right in favor of a particular case--i allude to the first establishment of the bank of north america. if this had been intended to decide this very important question, without any reservation of their power in other cases, they would have expressed it in the most positive and unequivocal manner. sir, it may be asked, how did the congress, whilst acting under the "articles of confederation," incorporate the bank of north america, though their powers were no more extensive than those of the present congress? we shall not lose by this investigation--they declared that "the exigencies of the united states rendered it indispensably necessary that such an act be immediately passed," and, at that period, the board of war confessed they had not money sufficient to pay the expense of forwarding an express to the commander-in-chief of the army! notwithstanding such urgent necessities on the part of the general government, they were too conscious of the rights of the states to attempt a usurpation of authority, or to pretend to force this act without their sanction; accordingly, we find the resolution by which this bank was established followed by another, which recommended to the legislature of each of the states the necessity to pass such laws as they judged requisite for giving the ordinance, by which the subscribers to the bank of north america were incorporated, its full operation; every provision in the charter of this bank, to have full effect, was recommended to the legislatures of the several states for their approbation. (_see journals of congress for , vol. th, pp. and ._) it is a well-known and an important fact, that the subscribers to the bank of north america did not rest satisfied of the authority of congress to incorporate them; subsequently to the original act of incorporation, they accepted from the legislature of pennsylvania a charter by which their privileges were very much abridged. some maintain, the states having made it penal to pass counterfeits of the notes of the united states' bank, is in proof of their recognizing the constitutionality of the institution. no one will pretend that these laws were intended other than to guard the people against fraud. these statutes were enacted without any connection with or reference to the principle upon which the original act was founded. it is but too well known, notwithstanding these salutary provisions, that counterfeit bank notes of every denomination are in daily circulation. i will ask, what would be the case if such laws had not been passed by the states? sir, if it requires all our care to prevent an inundation from such bank paper as is acknowledged to be genuine, for heaven's sake do not risk the security of the people, by an indirect sanction of such as is known to be spurious! friday, january . a motion was made by mr. fisk, that the house do now adjourn; and the question being taken thereon, it was determined in the negative--yeas , nays . _bank of the united states._ the house again resolved itself into a committee of the whole on the bill to renew the charter of the bank of the united states. mr. burwell's motion for striking out the first section being still under consideration. mr. p. b. porter.--mr. chairman: as this bank has excited so extraordinary an interest in every part of the united states, and particularly in the state which i have the honor to represent; as i am apprehensive, from what took place yesterday, that i shall be found, on this question, in opposition to a majority of my colleagues; and, (what will always be an imperative motive with me,) as i think this bill aims a deadly blow at some of the best principles of the constitution, i feel it my duty to state to the house the grounds on which i shall be constrained to vote for striking out the section now under consideration. i acknowledge that i had not, until lately, paid any particular attention to the question of the constitutionality of this institution. i stand, therefore, in this respect, on safer ground than the respectable member from north carolina (mr. macon,) for i have no reason to suspect myself of any long-rooted prejudices on the question. the bank of the united states was established at a time when i was not in the habit of troubling myself with such questions. i had been accustomed to think of it as an institution, the constitutionality of which was conceded by common consent. but, sir, when the question was again stirred, i felt it my duty to give it a thorough investigation before i should sanction it by my vote. i have given it, if not a thorough, at least a candid and impartial examination; and the result has been, a full conviction that we have no right to incorporate a bank upon the principles of the bill on the table, or rather, upon the principles of the original charter, which this bill proposes to renew. the ground of my objection is, that it assumes the exercise of legislative powers which belong exclusively to the state governments. i shall not touch the question of the expediency of this bank, much less the expediency of banking generally. if i were competent, which i confess i am not, to the task, i should think it a very unprofitable one, to follow the gentleman through all the mazes of the banking system--a system, sir, about the various and important operations and effects of which on civil society, aside from a few obvious truths which it furnishes, i have found that those gentlemen who have professed to understand them best, have differed most. as i propose to confine myself to the constitutional question solely, i hope i shall be allowed to take a little broader range on this point, than has been taken by the gentlemen who have preceded me. i am aware how ungracious constitutional objections to the powers of this house are with those, and there are many such, who believe that the powers of the federal government are, at best, too contracted; and who would be glad to see all the state rights merged and sunk into a consolidated government. whatever may be my speculative opinions on this subject, i can never be influenced, by motives of expediency, to swerve from my allegiance to the constitution. this sentiment is indelibly fixed on my mind, and i trust it is a common one to the members of this committee. that, in adhering strictly to the obligation we have taken to support the constitution of the united states, we not only perform a sacred duty to ourselves, but we render a better service to the real and permanent interests of our country than we could possibly render by a departure from that obligation; even though that departure were to avert so serious a calamity as a general bankruptcy--a calamity which, in order to alarm the timid, has been held out as the inevitable consequence of a refusal to renew this charter. i should be surprised at the general acquiescence which seems to have been yielded to the constitutionality of this institution, did i not believe that others had been as superficial in their examination of the subject as i had myself. when objections are made to the constitutionality of the law, the people, in the cursory views which they are accustomed to take of such objects, are apt to adopt, as the tests of its constitutionality, the powers of the state and federal governments collectively; and if they find nothing in the law offensive to the principles of civil liberty, nothing uncongenial with the spirit of a republican government, they rest satisfied, and do not trouble themselves with nice distinctions between the powers peculiar to the one or the other of these governments. such reasoning would, however, ill become the sagacity of this house. one of the most serious dangers with which our government is threatened, and it is a danger growing out of the very nature and structure of the government itself, consists in its tendency to produce collisions between state and federal authorities. the federal government, as was observed by my learned colleague, (mr. mitchill,) is _imperium in imperio_, a government within a government; and the misfortune is, that there exists no friendly third power to decide the controversies which may arise between these two great, independent, and, in many respects, rival authorities. the public peace must be kept, if kept at all, by the conciliatory dispositions of the parties themselves. as then we have a common interest in the preservation of both these governments--as we are as well the subjects of the _imperio_ as of the _imperium_, we ought to act with great circumspection and delicacy in the assumption of powers which do not clearly belong to us. it is better to forego the exercise of powers to which we are entitled, if the exercise of them is not very important, rather than hazard the assumption of doubtful ones, the fatal consequences of which my honorable friend from virginia (mr. burwell) has so justly deprecated. the great line of demarcation between the powers of the state and federal governments is well understood. the powers of the state governments extend to the regulation of all their internal concerns: those of the federal government to the management of all our external relations--external as regards the individual states, as well as the states in their collective capacity. the general ideas upon which our republic is founded, are these: that small territories are better adapted to the successful administration of justice than large ones. in a republic, where the people are the sovereigns and source of power, it is important that, in order to enable them to execute this power discreetly, they should possess correct information in relation to the character and conduct of their rulers, and in relation also to the character of the measures which they pursue, or ought to pursue; and this information is better attained in a small than in a large territory. the individual states have therefore reserved to themselves the exclusive right of regulating all their internal, and, as i may say, municipal concerns, in relation both to person and property. but a single state may be inadequate to its own protection against foreign violence; it may also be unable to enforce the observance of proper rules and regulations for carrying on its foreign trade and intercourse. the confederacy of the states is therefore formed for the purpose of attaining these two objects, namely, the regulation and protection of the trade and intercourse of the states with each other and foreign nations, and their security against foreign invasion. it has some other objects in view of minor consequence, and immediately connected with these principal ones. the constitution of the united states is the basis of this confederacy; and it is only necessary to read the constitution to perceive that it is nothing more than a delegation of specific powers for these specific purposes, and that the general sovereignty of the states over their respective territories is expressly retained by the states. but, sir, independent of these specific powers and duties of the federal government, it has another and distinct set of powers and duties to perform and execute. the national domain, as it has been called, embracing the lands acquired by the revolutionary conflict; the lands since purchased of foreign nations; and the lands ceded by the several states to the general government, belong to the united states in their federate capacity; and no individual state, as such, has any claim to or jurisdiction over them. as to these lands the powers of the united states are sovereign, independent, and complete: and the congress of the united states is the only legitimate authority for the exercise of this sovereignty. the powers of congress, then, in relation to these territories, include the powers of both the federal and state governments, in relation to the states. i have adverted to this branch of the powers of the federal government as a means of dispelling the obscurity which has been thrown over the constitutional question, to which i shall soon come, by confounding the powers of congress over the states, with their powers over the territories. arguments, to which i shall have occasion to advert in the course of my observations, have been used to justify the exercise of particular powers within the limits of the states, from our acknowledged right to and practical exercise of similar powers within the territories. in discussing constitutional questions, then, we lay down these axioms:--that in relation to the territories, the powers of congress are supreme and exclusive; that in relation to the states, they are specifically defined and limited by the constitution--and that we have no right to exercise, within the limits of a state, any power as resulting from the general rights of sovereignty; because that sovereignty belongs to the states and to the people, and not to the federal government. to show that these two last positions are correct, i will read the tenth article in the amendment of the constitution: "the powers not delegated to the united states by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or the people." as, then, the incorporation of this bank involves the exercise of legislative powers within the jurisdiction of the states, in relation to the rights of property between the citizens of those states; and as no power to incorporate a bank, _eo nomine_, is to be found in the constitution, it would seem sufficient for us to rest the argument here, by a mere denial of the power, and to call on the advocates of the bank to show its constitutionality. an attempt to prove this constitutionality has been made--not, however, sir, by arguments advanced by gentlemen on the other side of the house in their places, (for they have, so far, observed, and i understand that they will continue to observe, a profound silence on this question,) but by arguments which have been gratuitously introduced, by the agent of the bank. i allude to the pamphlet which has within a few days past been printed and distributed among the members, containing the celebrated argument of general hamilton, "on the constitutionality of a national bank." as that pamphlet is _de facto_, if not _de jure_, before the committee, i will, if the committee will indulge me, attempt to examine some of the principal arguments contained in it, and i will also notice some additional ones, advanced yesterday by my honorable friend and colleague on my left, (mr. fisk.) in the course of the observations which i have to submit, i shall, without doubt, repeat arguments and remarks made by the gentlemen who have preceded me, and others which are familiar to the members of the committee. my excuse must rest in the difficulty of taking a connected view of the subject, without such repetitions. if i shall be so fortunate as to throw a single new ray of light on this important question, i shall feel amply remunerated for my trouble, and i shall think the time of the committee not altogether misspent. the first argument in this pamphlet is founded on the sovereignty of the powers of congress. the federal government is said to be sovereign as to all the objects for which that government was instituted. a sovereign power includes, by force of the term, a right to all the means applicable to the attainment of the end for which that power is given; and therefore congress may, in virtue of their sovereign power, create incorporations for attaining the ends or objects of those powers. this argument is founded on what the logicians call _petitio principii_, or begging the question. the proposition, that the government is sovereign, is assumed, to prove that it possesses the attributes of sovereignty: or, in other words, the fact of sovereignty is assumed, to prove that sovereignty. if the position that the powers of this government are sovereign as to all the objects of them, be proved, i will concede the consequence, to wit: that we have a right to establish corporations to attain these objects--but i deny the fact of sovereignty. the acts of congress, it is said, are declared by the constitution to be the supreme law of the land: and the power which can make the supreme law of the land, is necessarily a sovereign power. but i deny that this is a correct definition, or exposition of sovereignty. it is not the high nature of an act, nor the authority of the act, that stamps the character of sovereignty on him who performs it. the sheriff of a county who puts a man to death, under the sentence of the law, executes an act of as high import and authority as human power can execute; and yet the sheriff of a county is not therefore a sovereign. his authority is a mere delegated authority--his act is a mere ministerial, mechanical act. the idea of sovereignty imports the exercise of discretion--of judgment--of will. it is of the very essence of sovereign power, that you may execute that power, or not execute it--that you may execute it when you will, and how you will. a sovereign power, as to any object, includes a right to any means, and all the means applicable to the attainment of the object. but, sir, do congress possess sovereign powers, or, what is the same thing, discretionary means, as to the attainment of the objects of this government? no, sir. the constitution is not a general authority to congress to attain the objects for which the government was established; but it is an enumeration of the particular powers, or means, by which, and by which only, certain objects are to be accomplished. if the powers of congress were sovereign, they would of necessity comprehend all the means applicable to the attainment of their objects; but inasmuch as they are specific and circumscribed, that very circumstance proves that they are not sovereign. the people of the united states are the true sovereigns of this country. from them all power emanates, and on their will all the authority of this government depends. the powers of the federal government are mere delegated chartered authorities; and in the exercise of them we are tied down to the letter of the constitution. we have, to be sure, a certain latitude of discretion allowed us, within the letter and pale of the constitution; and so far we may be said to possess a sort of limited qualified sovereignty. but the constitution is the standard by which to measure the quantum and extent of our sovereignty. and our sovereignty, which is the result of the powers given in the constitution, is not the standard by which to measure the constitution. the constitution is the true bed of procrustes--and our sovereignty, however unwillingly we may yield it, must be the victim. another argument, which is rather an argument to the favor than to the right of this bank, is, that it is an innocent institution; that, although its erection involves the exercise of legislative powers within the states, it does not abridge or affect the rights of the citizens, as secured to them by the laws of those states. a corporation, it is said, is a fiction of the law, a mere political transformation of a number of individuals from their natural into an artificial character, for the purpose of enabling them to do business to better advantage, and on a more extended scale; but, that when this political association, this legal entity, is once formed, it becomes subject to the laws of the state in which it happens to be placed. i know, sir, that there is nothing formidable in the abstract idea of a corporation. it is a mere phantom of the imagination, invisible, intangible, and, of course, innocent. but, sir, when the legal effects of this incorporation are to invest the individuals whom it associates with privileges and immunities to which they were not before entitled; when this legal fiction is interposed to shield certain individuals from the liabilities to which they would be subject as ordinary citizens, it then becomes a matter of important and serious consequence. what are some of the legal effects of this incorporation? one of its most obvious and distinguished characteristics is, that it exempts the private property and persons of the stockholders from all liability for the payment of the debts of the company. by the laws of every state in the union, every man is, i believe, liable for the payment of his debts, to the full amount of his private fortune; and, in case that fortune prove insufficient, his personal liberty is at the disposal of his creditor; at least to a certain extent. is not, then, the exemption from these liabilities an important immunity? is it not an exclusive privilege secured to the stockholders of this bank? assuredly it is. i know it has been said that a number of individuals may, by a private association, secure to themselves all the advantages of an incorporated company; that, by forming a common fund or stock upon which to do business, and issuing notes chargeable upon that fund, they may exonerate their persons and private property from all liability for the payment of the debts contracted in that business. i am no lawyer, sir; but if the law be what it is said to be, and what i believe it to be, _summa ratio_, then i pronounce this doctrine not to be law; for nothing can be more preposterous in principle than to say, that a man may, by his own act, avoid the force of an obligation which the law has made universal and unqualified. if a man owes a debt, acknowledges he owes it, and has received a consideration for it, the law has prescribed the nature and extent of his liability to pay it; and it is not for him to say that it shall only be paid out of a certain fund, or particular part of his property, and no other. when men contract a debt jointly, the legal obligation to pay it extends as well to the persons and separate property of the individual partners, as to their joint property. another feature of this incorporation is, that it authorizes the stockholders to take usurious interest for their money. by the provisions of the law, the bank may issue notes and make discounts to double the amount of their capital stock; and, in addition to that, to the amount of any moneys which may happen to be deposited in their vaults for safe-keeping; and this, too, independent of the debts created by these deposits. the bank, then, may, and in fact, in many instances, does draw an interest on three or four times its capital. every state in the union has laws regulating the rate of interest, and in most of the states this rate is fixed at six per cent. a year. by these laws it is made penal for a man to receive more than six per cent. interest for the use of any sum of money which, by a loan, he puts at hazard, and the use of which he deprives himself of. now, sir, this bank is permitted, contrary to those laws, to draw an interest on twenty or thirty millions of dollars, when, in truth, the whole extent of its responsibility, the whole sum which it puts at hazard, and the use of which it foregoes, is only its original stock of ten millions. in answer to this, it will be said that an individual may, by issuing notes to an amount greater than his property, legally receive an interest on a capital which he does not possess. but it must be recollected, in case of the individual, that, although he may not at the particular time possess a property adequate to the payment of his debts, yet that all the property which he may subsequently acquire, will be liable for the payment of those debts; and what is more, sir, his personal liberty is always put in jeopardy. in this point of view, the liability and the hazard of the individual may fairly be said to be co-extensive with the whole amount of the capital on which he draws an interest; and which is often the case with the bank. this bank incorporation possesses other qualities at war with the laws of the several states; one of which is, that it authorizes stockholders, who may be foreigners, to hold real estate. but, sir, i will not detain the committee any longer on this part of the argument, for this institution cannot be said to be innocent, as regards the rights of the states, when its effects on the rights of property are to exonerate the stockholders from some of the most important responsibilities which the laws of the several states have provided for the payment of debts; and when it authorizes the taking of usurious interest. i lay it down, then, as a position which cannot be controverted, that the granting of this charter is not only an interference with the municipal regulations of the several states in relation to the rights of property; but that it is an infraction of the rights of individuals as secured by those regulations. but it is contended, that a right to incorporate a bank of the united states is delegated to congress by the constitution: and five or six different provisions of the constitution are referred to as giving this right. it is said that it is implied in the power to lay and collect taxes, in the power to borrow money, in the power to regulate trade and intercourse between the several states, in the power to provide for the general welfare, and in the power to make all needful rules and regulations respecting the territorial and other property of the united states. the very circumstance of referring this right to many different heads of authority is, in itself, conclusive evidence that it has no very direct relation to any of them. for it can scarcely be imagined, that the single act of incorporating a bank can be at the same time any thing like a direct execution of so many and such distinct and independent powers. but i will examine these provisions separately. before i proceed, however, i will premise that all the arguments in support of the right to incorporate a bank, as deducible from the provisions of the constitution itself, are built up by the aid of the clause of the constitution, which has been sometimes called "the sweeping clause." i allude to the clause which declares that congress shall have the right to pass all laws necessary and proper for the carrying into execution the delegated powers. all the powers in the constitution are given for certain ends or objects. but each power is not a _general_ authority to attain a particular object, and comprehending, of course, _all_ the means or powers applicable to its accomplishment; but, in most cases, it is a specific means for effecting some particular end, and all other means or powers (for means and powers are the same thing) conducive to the same end, are expressly excluded by the restrictive clauses of the constitution. the mode of reasoning adopted by general hamilton, and the other advocates of implied powers, is this: they first search for the end or object for which a particular power is given; and this object will be an immediate or ultimate one, as may best suit the purpose of the argument. having ascertained the end or object, they abandon the power; or, rather, they confound the _power_ and the _object_ of it together, and make the attainment of the object, and the execution of the power given to accomplish it, convertible terms. whatever, they say, attains the object for which any power is given, is an execution of that power. but the constitution gives to congress a right to make all laws necessary and proper for carrying into execution the delegated powers; and, therefore, as the execution of a power and the attainment of its object are synonymous terms, the constitution gives to congress a right to make all laws necessary and proper for attaining the ends or objects for which the various powers in the constitution are given. i beg leave to read a passage from this pamphlet: "the relation between the measure and the end, between the nature of the means employed towards the execution of a power and the object, must be the criterion of constitutionality." here then is the axiom--now for the application of it. the constitution gives to congress the power to levy taxes, and also the power to borrow money. but the establishment of a bank is neither levying taxes nor borrowing money; nor is the law incorporating the bank a law to levy taxes, or a law to borrow money. but the immediate end or object for which these two powers were given, was, to enable the government to raise a revenue; and a bank may promote this object. then, sir, by a dexterous application of the argument which i have stated, the fallacy of which consists in the sudden and unobserved transitions which are made from the power to the object, and from the object back again to the power, they prove that the establishment of a bank is in execution of the powers to lay taxes and to borrow money. i will now, sir, proceed to examine the particular provisions of the constitution which have been relied on, and to place the subject in some different aspects. in the first place, then, it is contended that the right to incorporate a bank of the united states is included in the power to lay and collect taxes. and what is the argument by which this position is maintained? why, sir, it is said that the law, by creating bank paper and making that paper receivable in payment for taxes, increases the circulating medium in which taxes are paid, and of course must facilitate the payment of them. that whatever facilitates the payment of taxes facilitates also the collection of them; and whatever aids or facilitates the collection of taxes, is a means for their collection. and, therefore, the incorporation of a bank is in execution of the power to lay and collect taxes. no man, sir, ought to complain of the weakness of a government, whose powers may be _reasoned up_ by logic like this. amidst the infinite variety of relations and connections, and dependencies and analogies by which all human transactions are allied to each other, he must be a weak politician who cannot, by hooking together a chain of implication like this, justify any and every measure of political policy or economy, as a means of executing some of the powers with which this government is intrusted. take this latitude of implication or construction, and you want no other power but the power to lay and collect taxes. it may be tortured into a justification of every measure which ambition itself could desire. no tyrant ever made a law without assigning the public good as the motive of it. no man on this floor, however wicked his designs, would venture to propose a measure (indeed few could be proposed) in favor of which he could not adduce some plausible argument, to show that it would tend to promote the general prosperity of the country. and in showing this he would show its constitutionality; for it is demonstrable that whatever would promote the general prosperity of the country, would, and for that very reason, facilitate, in some greater or less degree, the payment of taxes; and might therefore be justified as a means for the collection of taxes. but, sir, the constitution, as i have said before, and i must repeat it again, for this is the radical source of all the error on this subject--the constitution of the united states is not, as such reasoning supposes it to be, a mere general designation of the ends or objects for which the federal government was established, and leaving to congress a discretion as to the means or powers by which those ends shall be brought about. but the constitution is a specification of the powers or means themselves by which certain objects are to be accomplished. the powers of the constitution, carried into execution according to the strict terms and import of them, are the appropriate means, and the only means within the reach of this government, for the attainment of its ends. it is true, as the constitution declares, and it would be equally true if the constitution did not declare it, that congress have a right to pass all laws necessary and proper for executing the delegated powers; but this gives no latitude or discretion in the selection of means or powers. a power given to congress in its legislative capacity, without the right to pass laws to execute it, would be nugatory; would be no power at all. it would be a solecism in language to call it a power. a power to lay and collect taxes, carries with it a right to make laws for that purpose; but they must be laws to lay and collect taxes, and not laws to incorporate banks. if you undertake to justify a law under a particular power, you must show the incidentality and applicability of the law to the power itself, and not merely its relation to any supposed end which is to be accomplished by its exercise. you must show that the plain, direct, ostensible, primary object and tendency of your law is to execute the power, and not that it will tend to facilitate the execution of it. it is not less absurd than it is dangerous, first to assume some great, distinct and independent power, unknown to the constitution, and violating the rights of the states; and, then, to attempt to justify it by a reference to some remote, indirect, collateral tendency, which the exercise of it may have towards facilitating the execution of some known and acknowledged power. this word _facilitate_ has become a very fashionable word in the construction of powers; but, sir, it is a dangerous one; it means more than we are aware of. to do a thing and to facilitate the doing of it, are distinct operations; they are distinct means; they are distinct powers. the constitution has expressly given to congress the power to do certain things; and it has as explicitly withheld from them the power to do every other thing. the power to lay and collect taxes is one thing; and the power to establish banks, involving in its exercise the regulation of the internal domestic economy of the states, is another and totally distinct thing; and the one is, therefore, not included in the other. again, sir, it is contended that the right to incorporate a bank is implied in the power to regulate trade and intercourse between the several states. it is said to be so, inasmuch as it creates a paper currency, which furnishes a convenient and common circulating medium of trade between the several states. money, sir, has nothing more to do with trade, than that it furnishes a medium or representative of the value of the articles employed in trade. the only office of bank bills is to represent money. now, if it be a regulation of trade, to create the representative articles or subjects of trade _a fortiori_, will it be a regulation of trade to create the articles or subjects themselves. by this reasoning then you may justify the right of congress to establish manufacturing and agricultural companies within the several states; because the direct object and effect of these would be, to increase manufactures and agricultural products, which are the known and common subjects of trade. you might, with more propriety say, that under the power to regulate trade between the states, we have a right to incorporate canal companies; because canals would tend directly to open, facilitate and encourage trade and intercourse between the several states; and, in my humble opinion, sir, canals would furnish a much more salutary, direct and efficacious means, for enabling the great body of the people to pay their taxes, than is furnished by banks. but, sir, these various powers have never been claimed by the federal government; and, much as i am known to favor that particular species of internal improvement, i would never vote to incorporate a company for the purpose of opening a canal through any state, without first obtaining the consent of that state whose territorial rights would be affected by it. there can be no question but canal companies, and agricultural companies, and manufacturing companies, and banking companies, may all tend, more or less, to facilitate the operations of trade; but they have nothing to do with the political regulations of trade; and such only come within the scope of the powers of congress. but, it is again said, that the right to grant this charter is included in the power to borrow money. the right is attempted to be deduced by a train of reasoning similar to that employed in relation to the provisions which i have already noticed--by forming a string of implications, by which you prove that a power to act in certain cases, and in relation to certain subjects, implies the power to create those cases and subjects to act upon. the government, it is said, may want and must have money, in any great national crisis. a national bank with an extensive capital will furnish ample means for loans, will facilitate the exercise of the power to borrow; and, therefore, the right to establish such a bank is implied in the power to borrow. no one, but a logician, sir, would imagine that a power to lend and a power to borrow had any relation to each other, much less could he conjecture that a power to borrow, and a power to create the ability to lend, mean the same thing. a plain unsophisticated man, on reading the constitution, would say, that the power to borrow necessarily, and by force of the term, pre-supposed the existence of the ability and disposition to lend; and that it could not be exercised unless such ability and disposition should actually exist. but the favorite doctrine is, that all powers are given for particular ends, and include all the means applicable to their attainment. here the end is to borrow money; to borrow honestly if we can, but--to borrow. the ability to lend is a necessary means or ingredient toward perfecting the execution of the power to borrow. but, sir, let me ask, whether the disposition to lend be not as necessary a means towards accomplishing a loan as the ability? it unquestionably is. and, of course, by the doctrine that the end justifies the means, you may coerce the will to lend--and this too equally, in cases where the ability is created by congress, and where it is derived from any other quarter. a loan obtained by bringing into fair operation all the implications of this power would be borrowing in an off-handed style. such a loan, if effected by bonaparte, we should call robbery; but in this mild republic, it would be nothing more than the fair exercise of an implied constitutional power. i have pursued this argument thus far, merely for the purpose of showing the absurdities into which this doctrine of implication will lead us. but suppose, sir, that the argument of the gentleman on the other side of the question be correct, to wit: that the power to borrow implies a right to furnish the ability to lend. what, i would ask, is the probable fact, as to the facilities which this bank will afford the government in borrowing? it will be conceded that we shall have no occasion for borrowing, except in case of war; and if we have a war, the probability is, that that war will be with great britain--i say this, not as a party man, sir, but because the interests of that nation, from her situation, and her rival pursuits, will be much more likely to come in collision with ours, than those of any other power. now it is a fact, in evidence before the committee, that more than one-half of the stock of this bank belongs to british subjects: and although, as foreigners, they can have no direct agency in the affairs of the bank, yet we well know that through the instrumentality of their friends and agents, of whom there are unfortunately too many in this country, they may completely control its operations. now i would ask, whether it is probable, that the british subjects would be willing to lend us money to carry on war against their sovereign? would they not, on the contrary, exert the influence which they are said to possess over the moneyed interest of this country, for the purpose of depressing the credit of the country; for the purpose of crippling the operations of the state banks; and for the purpose of drying up the sources from which the government might otherwise calculate to derive supplies? but, sir, this has little to do with the question of constitutionality, to which i will again return. another ground upon which the constitutionality of this institution has been attempted to be supported, is, that it is necessary to the regular and successful administration of the finances. there is no question, but the bank and its branches afford convenient places for the deposit and safe keeping of the public revenue. it is not to be controverted that they also furnish a safe, convenient, expeditious and cheap means for the transmission of moneys from one part of the united states to another, as they may be wanted by the government; and if these facilities were not to be attained in any other way, i should say it would afford an argument in favor of a bank. not a bank infringing and violating the rights of the states; but, a bank upon principles consistent with those rights. but, sir, is there not, in every state in which there is a branch of the united states' bank, also one or more state banks, of equal respectability, and of equal security--at least to the extent of any sum for which they are willing to undertake? these state banks may be used as depositaries for the public moneys, and they will be equally safe and convenient. and if you will give to these state banks the advantages of these deposits, as you have hitherto given them to the united states' bank, they will furnish means for the transmission of moneys from place to place, equally safe, convenient, cheap and expeditious. this object will be attained by connections which will be formed between the banks of the different states. such connections have already in many instances been formed. but they have not been carried to the extent they otherwise would have been, on account of the united states' bank and its branches; between which there is so intimate and so necessary a connection. but, in answer to this, it is said that if the bank of the united states would be constitutional without the existence of the state banks, it is equally so with. that a power which is once constitutional is equally so at all times, and under all circumstances. that a right which must depend for its existence on the will of the state legislatures, over whom we have no control, is incomplete, and indeed, as to us, is no right all. this argument is founded on the supposition that the federal government is a complete government, containing in itself all the principles and powers necessary for its own operations, which supposition is wholly false. the federal government does not profess to be complete in itself. it is expressly predicated on the existence of the state governments; and most of the facilities for its exercise are derived from the state governments. it cannot perform even its own peculiar powers and functions, without the aid and co-operation of the state authorities. how, let me ask you, sir, is your government constituted? your senate is appointed directly by the state legislatures. your president and house of representatives, indirectly, by the same authority. suppose they should neglect or refuse to make these appointments, can you compel them to do it? no, sir. can you punish them for not doing it? not in the least. they may appoint or not, as they think proper; and if they should neglect or refuse to do it, your boasted complete government would die a natural death, by its own imbecility. it is not fair, then, to say that a power is constitutional, because the government would be incomplete without it. it is not fair to say, that what would be constitutional without the existence of the state governments and their appendages, is equally so with. this would prove that you have a right to appoint your own president, senate and house of representatives. it would go to usurp all the powers of the state governments; for the government could not be said to be complete without possessing the powers of both governments combined. indeed, this federal government cannot be said to be complete as to a single power, without all the auxiliary powers of the state governments; for there is not a single act which it can perform without their assistance, directly or indirectly. the very bank law now under consideration is an illustration of this--for how are the provisions of this law to be enforced; how are the debts which it authorizes to be contracted to be collected, but through the medium of the state courts? the doctrine of perfect rights, then, if it prove any thing, proves too much. if it proves that, in order to manage your revenues, you may establish banks within the states; it equally proves, that, in order to carry the provisions of your bank laws into execution, you may establish courts and offices within the states for that purpose. i think then, sir, i may fairly conclude, that so long as the state governments furnish you with all the facilities which you can reasonably require for conducting your revenues by means of their state banks; so long it will be unnecessary--so long it will be improper--and, therefore, so long it will be unconstitutional to invade the jurisdiction of the states, to establish national banks. but, sir, i will conclude by again cautioning my republican friends, and my worthy colleague in particular, to beware how they familiarize themselves with this doctrine of constructive power. it is a creed at war with the vital principles of political liberty. the pride and the boast of the american governments is, that they are the governments of the laws and not of men--that they are the regular and necessary operations and results of principles and powers, established in the moments of cool and deliberate reflection, by the combined wisdom of the nation; and that they are not the effects of the momentary passion, pride, interest, whim, or caprice of a few individuals collected on this floor. little did the framers of this constitution, when they were so nicely adjusting and balancing its various provisions--when they were so carefully erecting guards and barriers against the encroachments of power and ambition--little, i say, sir, did they imagine, that there lay concealed under the provisions of this constitution, a secret and sleeping power, which could, in a moment, prostrate all their labors with the dust. still less, sir, did the people when they adopted this constitution, with even more caution and scruple than that with which it was formed, conjecture that they were signing the death-warrant of all their state rights. but, once adopt the doctrine that you may travel out of the letter of this constitution, and assume powers, merely on the ground that they will tend to facilitate the execution of powers which are here given; and you compass, at a single sweep, all the rights of the states; and form the basis of a consolidated government. let the principle of constructive or implied powers be once established, in the extent to which it must be carried in order to pass this bill, and you will have planted in the bosom of this constitution a viper which, one day or another, will sting the liberties of this country to the heart. when mr. porter had concluded his speech, the question was taken on striking out the first section, and carried-- to . the committee rose, and reported to the house, who adjourned without taking a question on the report. saturday, january . another member, to wit, from new york, barent gardenier, appeared, and took his seat. _bank of the united states._ mr. sawyer called for the order of the day on the unfinished business of yesterday--the bill continuing the charter of the bank of the united states. [the first section had been struck out in committee of the whole, and the bill reported to the house, and the question now was upon concurrence with that vote in committee. on that question the debate was renewed in the house, and, of necessity, the same ground gone over which had been trod in committee, and still more extensively. finally the vote was taken, and the concurrence carried by one vote! so close was the contest in both houses--in the senate the question decided by the casting vote of the vice-president--in the house, by one vote. the following were the yeas and nays:] yeas.--lemuel j. alston, william anderson, ezekiel bacon, david bard, william t. barry, burwell bassett, william w. bibb, adam boyd, robert brown, william butler, joseph calhoun, langdon cheves, matthew clay, james cochran, william crawford, richard cutts, john dawson, joseph desha, john w. eppes, meshack franklin, barzillai gannet, gideon gardner, thomas gholson, peterson goodwyn, edwin gray, james holland, richard m. johnson, walter jones, thomas kenan, william kennedy, john love, aaron lyle, nathaniel macon, alexander mckim, william mckinley, samuel l. mitchill, john montgomery, nicholas r. moore, thomas moore, jeremiah morrow, gurdon s. mumford, thomas newton, john porter, peter b. porter, john rea of penn., john rhea of tennessee, matthias richards, samuel ringgold, john roane, ebenezer sage, lemuel sawyer, ebenezer seaver, adam seybert, john smilie, george smith, samuel smith, henry southard, george m. troup, charles turner, jr., archibald van horne, robert weakley, robert whitehill, robert witherspoon, richard wynn, and robert wright. nays.--joseph allen, willis alston, jun., abijah bigelow, daniel blaisdell, james breckenridge, john campbell, john c. chamberlain, wm. chamberlin, epaphroditus champion, martin chittenden, john davenport, junior, william ely, james emott, william findlay, jonathan fisk, barent gardenier, david s. garland, charles goldsborough, thomas r. gold, william hale, nathaniel a. haven, daniel heister, william helms, jonathan h. hubbard, jacob hufty, ebenezer huntington, richard jackson, jun., robert jenkins, philip b. key, herman knickerbacker, joseph lewis, jun., robert le roy livingston, vincent matthews archibald mcbryde, samuel mckee, pleasant m. miller, william milnor, jonathan o. mosely, thomas newbold, john nicholson, joseph pearson, benjamin pickman, junior, timothy pitkin, jr., elisha r. potter, josiah quincy, john randolph, thomas sammons, john a. scudder, samuel shaw, daniel sheffey, dennis smelt, john smith, richard stanford, john stanley, james stephenson, lewis b. sturges, jacob swoope, samuel taggart, benjamin tallmadge, john thompson, nicholas van dyke, killian k. van rensselaer, laban wheaton, and james wilson.[ ] and then the house adjourned until to-morrow morning eleven o'clock. saturday, january . another member, to wit, from massachusetts, edward st. loe livermore, appeared, and took his seat. tuesday, january . _removal of federal judges on address of congress._ amendment to the constitution. mr. wright.--believing, as i do, that the constitution of the united states is not perfect, and as provision is made in the body of the instrument for amending its imperfections in the manner therein prescribed, i feel it an imperious duty to propose an amendment to it. here let me remark, that its adoption was opposed by the patriots of america, at the time of its ratification, because of omissions important to liberty. it had not guarded against an establishment of religion; it had not secured the right of the people to keep and bear arms; it had not guarded against soldiers being quartered in our houses in time of peace, without our consent, it had not guarded against warrants being issued without oath; it had not guarded against a man's being put to answer without previous indictment; it had not secured the criminal in the trial by jury; it had not secured the trial by jury in cases of common law, and these omissions as due guards to the liberty of the citizens stand recorded in these amendments almost coeval with the instrument. the terms federal and anti-federal had their origin in the zeal of the respective parties at that time; the one insisting on its adoption with all these imperfections on its head, while the other insisted on these amendments; and it has always appeared to me, that on the adoption of the amendments that those who were called anti-federals were really the federals, the constitution being perfected by the adoption of these amendments. the foregoing amendments test its original imperfection, and i trust will lead this house to a temperate examination of the amendment i now propose to submit. the amendment, sir, is to place the judiciary of the united states on the same foundation that the british judiciary are placed by their laws; by enabling the president, on the joint address of the senate and house of representatives of the united states, to remove a judge. in england the judges held their commissions during the pleasure of the crown, till the time of charles the first, when the parliament imposed upon the king the necessity of granting them during good behavior; till then the crown, as the fountain of justice, held the uncontrolled direction of the commissions of the judges. at the same time, sir, the high commission court and star chamber were abolished. in the thirteenth year of william the third, the judges, by statute, were to hold their commissions during good behavior, and by the same statute they may be removed by the joint address of both houses of parliament; and here let me remark, that under that tenure and responsibility, the british judiciary have attained a celebrity in history for their judicial integrity and correctness highly honorable to them, and which this amendment, i fondly hope, in time, may correctly attach to the judiciary of the united states. there are a variety of cases where the exercise of this power may be necessary for the safety of the people, which ought to be the supreme law. this power, i trust, will never be abused by the american congress. i do not recollect a case under the british government, where for fifty years it has been exercised, and i trust we shall not ascribe to ourselves an indisposition to the correct discharge of those functions which have been correctly exercised or rather not exercised at all for fifty years by the british government. if in england, where the crown is hereditary, the lords hereditary and for life, and the commons for seven years, this tenure and responsibility has been found necessary, i trust in this government, where the president is for four years, the senate for six, and the house of representatives for two years, this judicial tenure and responsibility will be thought expedient, and that this amendment will be adopted by congress, particularly as it is but a preliminary decision--as it must be submitted to the states, and cannot go into operation but by the consent of three-fourths of the united states. i have therefore thought fit to submit this resolution, and hope the reasons assigned will induce you to believe that i think it of such importance to the nation as to entitle it to your attention. mr. w. then submitted the following resolutions: _resolved by the senate and house of representatives of the united states of america, in congress assembled, two-thirds of both houses concurring_, that the following section be submitted to the legislatures of the several states, which, when ratified by the legislatures of three-fourths of the states, shall be valid and binding as a part of the constitution of the united states: _resolved_, that the judges, both of the supreme and inferior courts, may be removed from office on the joint address of the senate and house of representatives of the united states. the house refused to consider the motion-- to . wednesday, january . _jared shattuck's claim._ the house resolved itself into a committee of the whole on the report of the committee of claims on the petition of jared shattuck-- to . the report is favorable to the claimant--a bill for the relief of this person having in two former sessions passed this house, but not been acceded to in the senate. mr. montgomery, in a speech of some length, opposed the claim, and moved that the committee rise, with a view to printing the papers relating to the claim, which he conceived was not fully understood. this motion was debated, and lost-- to . the report was also debated, and agreed to-- to . the committee then rose and reported their agreement to the report. thursday, january . another member, to wit, from massachusetts, orchard cook, appeared, and took his seat. _mississippi territory._ the house resolved itself into a committee of the whole, on the report of the select committee in favor of admitting the mississippi territory into the union on an equal footing with the original states. a desultory debate of two or three hours took place on the resolution. messrs. poindexter, johnson, gholson, mckim, sheffey, holland, and wright, spoke in favor of the resolution, and messrs. bacon, pitkin, quincy, bigelow, and blaisdell, against it. the arguments in favor of its passage were, among others, that the territory could, when possessing a population of , , claim admission as a right; that it now contained probably , , and would, more than probably, before a representative could be elected under the new constitution, contain full , souls; that, after admitting orleans to the rank of a state, with a minor population, at the present session, it would be the height of injustice to refuse the same privilege to mississippi, which had been so much longer a part of the united territory, and against the admission of which into the union none of the constitutional objections had weight which had been urged against the admission of orleans. the opponents of the resolution argued that some respect was due to the feelings, however grounded, of the eastern states, in relation to the creation of new states on the western waters; that the admission of one state during a session was sufficient; if two were admitted into the union, in the course of three months, the people of the eastern states would be justly alarmed at the diminution of their relative weight in the scale of the union; that, since it was acknowledged the new state could not be represented before the thirteenth congress, there could be no occasion for pressing this subject so urgently at this time. why not, it was asked, wait for the actual census of the territory? the very solicitude which was manifested to get this subject through congress, it was said, showed there was something wrong, and was a strong argument against the adoption of the resolution. the resolution was agreed to in committee of the whole--ayes . the committee rose, and reported their agreement to the resolution. the question was then taken to concur with the committee of the whole in their agreement to the said resolution, and resolved in the affirmative--yeas , nays . friday, february . _commercial intercourse._ the house went into committee of the whole on the following bill reported by the committee of foreign relations: a bill supplementary to the act, entitled "an act concerning the commercial intercourse between the united states and great britain and france, and their dependencies, and for other purposes." _be it enacted, &c._, that no vessel _owned wholly by a citizen or citizens of the united states, which shall have departed from a british port prior to the second day of february, one thousand eight hundred and eleven, and no merchandise owned wholly by a citizen or citizens of the united states, imported in such vessel_, shall be liable to seizure or forfeiture, on account of any infraction or presumed infraction of the provisions of the act to which this act is a supplement. mr. emott moved to amend the same by striking out the words in _italic_, and to insert in their place, "or merchandise." the bill, as amended, would read as follows: "that no vessel or merchandise shall be liable to seizure or forfeiture on account of any infraction, or presumed infraction, of the provisions of the act to which this act is a supplement." mr. emott.--mr. chairman: as the bill which is now on your table is calculated to relieve our merchants in part from the restrictive system which has again been attempted to be put in operation, i so far approve of it; but as it does not appear to me to go far enough, i rise for the purpose of moving an amendment, which, if adopted, will once more give us a clear deck; and while i am up, the committee will permit me, as concisely as the nature of the subject will admit, to assign the reasons which induce me to propose the amendment. by the law of the first of may last, the president was authorized, in case either of the great belligerents, before the third of march, revoked her anti-neutral edicts, to proclaim the same, and if the other did not in three months also revoke, a non-intercourse with her was to follow. on the second day of november, the president had proclaimed, as a fact, that france had made the necessary revocation; and it follows, if he was correct as to the fact, that on the second day of this month, the non-intercourse went into operation against great britain. as many formerly, and more latterly, have doubted as to the fact thus proclaimed, it becomes, sir, a duty which we owe to ourselves and to the people, to inquire into its existence; for if it be true that no such repeal, as was contemplated by the law, has taken place; if, indeed, the president has been deceived, or was mistaken, we cannot too soon make it known, and relieve the country from the vexation and embarrassment which must result from the present state of things. if, sir, additional motives were necessary, we may find them in the bills which have this morning been introduced into the house by the chairman of the committee of ways and means, at the instance of the secretary of the treasury, one of which goes to lay large additional duties, and the other to authorize a loan. the reasons assigned by the secretary for this new and heavy tax on our citizens are, that as the greater part of our duties on imports are collected on goods coming from great britain and her colonies, and as those duties will cease with the revival of the non-importation, it becomes necessary, in order to prevent a defalcation in the revenue, to tax the production of other countries much beyond the present rate. on this presumed defalcation, too, in some degree depends the proposition for a loan, or, if a loan be necessary, the amount of it. in this point of view, it becomes highly important to ascertain whether the non-intercourse has gone into operation; for if it has not, i trust we shall not proceed to give form and shape to the recommendation of the secretary, that we shall not burden the country with new taxes, or subject it to large loans. in the commencement of this inquiry, mr. chairman, we naturally ask ourselves, what edicts are to be revoked, and how are they to be revoked? it is not material to extend this inquiry to great britain, as we know of no revocation on her part, and, under all circumstances, we have not, i fear, much reason to believe that there will be such revocation. but it may be well to notice here something which has the appearance of inconsistency, on the part of our executive, towards that government. the non-intercourse law of march, , contains a provision, that, "in case either france or great britain shall so revoke or modify her edicts, as that they shall cease to violate the neutral commerce of the united states," the president shall declare the same by proclamation, and the non-intercourse was then to cease as to the nation revoking. it was under this law, and in consequence of the power so given to the president, that the celebrated, though ill-fated arrangement, was made between the executive and the british minister, mr. erskine. now, sir, by referring to this arrangement, you will find, that on april , mr. erskine proposed to secretary smith the revocation of the orders in council of january and november, , as a compliance on the part of great britain with the terms of the act of march; and our secretary, on the same day, declaring that the withdrawing of such orders would be deemed satisfactory by the president, the arrangement was completed on the th, and a proclamation accordingly issued on the ground, and assuming the fact, that the british edicts had ceased to violate our neutral commerce, and again opening the intercourse between the two countries after the th of june. this arrangement, and the short and hasty correspondence connected with it, you will recollect, sir, were presented to congress with the message, at the opening of the summer session of , and we then passed a law, the object of which was to ratify and to carry into effect the arrangement. here, then, we have an explicit opinion from both the executive and the legislature, that the only british orders which came within the spirit and intent of the law of march, were those of january and november , and that, when those orders were revoked, the edicts of great britain ceased to violate the commerce of the united states. i pray you now, mr. chairman, to turn with me to the law of may last; you will there find the precise phraseology of the act of march: "in case either great britain or france shall so revoke or modify her edicts, as that they shall cease to violate the neutral commerce of the united states," the president is to make known the fact by proclamation. the authority given to the president is in both cases the same, and it was to have been presumed that it would have been exercised on the same terms. but, sir, it will be found, on referring to the papers, that, under the act of may, the executive made a further requisition. the revocation of the orders in council of january and november was not to satisfy us, but the blockade of the year preceding was to be also annulled. in the letter from secretary smith to our minister at london, of the th of july, , and which enclosed a copy of the law of may, it is said, "that in explaining the extent of the repeal which is required on the british side, mr. pinkney will let it be distinctly understood, that it must necessarily include an annulment of the blockade of ;" and our minister accordingly, in his letter to lord wellesley, of the st of september, tells him it is his duty to state "that an annulment of the blockade of may, , is considered by the president to be as indispensable, in the view of the act, as the revocation of the british orders in council." nay, so far has the president gone in this particular as to give the french government a pledge that this will be required on the part of great britain. in the letter from secretary smith to general armstrong, of the th of july, , the latter is authorized, if it should be found necessary, to "let it be understood that a repeal of the illegal blockades of a date prior to the berlin decree, namely, that of may, , will be included in the condition required of great britain." it is not my intention at this time, to enter into a discussion on the subject of blockades, nor am i to be understood as giving countenance to the system of paper blockades, whether that system proceeds from or is attempted to be enforced by england or by france; but, sir, i have gone into this examination to show that the president has acted differently under two laws which ought to have the same practical construction, because the terms used in them were alike; that under the law of may, , he added a condition to a settlement with great britain, which he did not require under the law of march, ; and why this difference? will it be said, that when the arrangement was made with mr. erskine the president had no knowledge of the blockading orders of may, ? not so, sir. by recurring to a report made by mr. madison, as secretary of state, in december, , of belligerent decrees and orders affecting neutral commerce, you will find this very blockade; and certainly what he knew as secretary in december, he must have known as president in the april following. shall i be told the president had discovered that the blockade had been "avowed to be comprehended in, and identified with, the orders in council?" i fear this will not be a satisfactory answer. for, in this case, if the orders in council are rescinded, the connection between them and the blockade will then stand as it was supposed by the executive to stand when the arrangement was entered into. persons, mr. chairman, more prone to jealousy than myself, and who are disposed to find fault with the late executive projects, may perhaps point to that passage in the letter from secretary smith to mr. pinkney, of the d of may, , in which it is said, that the president has read, with surprise and regret, the reply of lord wellesley to the note requiring explanations with respect to the blockade of france, which "evinces an inflexible determination to persevere in the system of blockade," as affording a reason for this added condition: they may say that it was thrust in when our administration were satisfied that it would not be acceded to by the british, and for the purpose of preventing an accommodation with, and keeping up the irritation against, that nation. but while, for myself, i disclaim this inference, i must confess that i am at a loss to assign a sufficient motive for the difference in the two cases. as to france, sir, what were the edicts to be revoked, and how revoked? i shall have occasion, before i sit down, to notice the berlin and milan decrees. but were there not other decrees? we have before us the rambouillet decree, with a date of the d of march, , which declares that "all vessels navigating under the flag of the united states, or possessed in whole or in part by a citizen or subject of that power, which, counting from the th of may, , have entered, or shall enter into the ports of our empire, of our colonies, or of the countries occupied by our arms, shall be seized, and the product of the sales shall be deposited in the surplus fund." thus embracing almost the whole of continental europe; for, with the exception of the russian ports on the baltic, and two or three places in the european peninsula, every port frequented by the americans belonged either to the empire of france, to the colonies of that empire, or to countries occupied by the forces of the empire. the seizures under this decree were consequently great and distressing to our merchants. this decree purports to be an act of reprisal on this country, and for what cause? not for any act of hostility by us; not for any seizures or confiscations of french vessels or french property under the authority, or within the limits of this government. no, sir, a pretence of this kind appeared too absurd to be inserted even in a french decree. it is true that general armstrong, in his letter to secretary smith, of the th of september, , communicates a verbal explanation which accompanied the last letter of the french minister: "if you confiscate french property under the law of non-intercourse, they will confiscate your property under their decree of rambouillet." ay, sir, and they have given a practical explanation that they would confiscate our property under the decree, although we did not confiscate their property under the non-intercourse law. look at the decree itself, and you will find the motive, or rather the pretext for this act of reprisal. it is grounded on the passing of the act of the st of march, , and it is grounded on that alone. thus, because we deemed it advisable to pass a law which we supposed was a mere municipal regulation, inasmuch as it related to our own citizens, or our own territories; a law, which, according to its letter, applied equally to both belligerents, and which was not to commence its operation until the th of may, contained in itself a notice sufficient to prevent any injury to french subjects; for this cause, and for this alone, the emperor adopts, as an act of reprisal, a decree which subjects to seizure and confiscation, not only american property which should reach the continent after notice of the decree, or even after its date, but property which arrived there at any time for the preceding twelve months. i will not stop to inquire what would and what ought to have been the feelings of the administration and of the country, if such an outrage had been committed by england for such a cause. but, sir, if the french government is allowed to have in the act of march an excuse for reprisal, we had better discontinue making laws altogether; for it is difficult to find in our statute book a law less hostile to france, or more within the right of an independent government to enact. to see the true character of this decree, we must approach it a little nearer; and with the letters of the duke of cadore in my hand--those letters, sir, which have occasioned our present embarrassments--i am strangely deceived if this proceeding of the french government does not appear to partake of the nature of an offence which, as respects individuals, is called swindling. it is a taking of property under false pretences. allow me now, mr. chairman, to present you with another view of this decree. the duke of cadore, in his letter of the th of august, , says: "now congress retrace their steps; they revoke the act of the st of march; the ports of america are opened to french commerce, and france is no longer interdicted to the americans." and in his letter of the th of september, he uses these expressions: "his majesty has always wished to favor the commerce of the united states. it was not without reluctance that he used reprisals towards the americans, while he saw that congress had ordered the confiscation of all french vessels which might arrive in the united states." "as soon as his majesty was informed of this hostile act, he felt that the honor of france, involved in this point, could not be cleansed but by a declaration of war." now "the american vessels which shall arrive in france, will not be subject to confiscation, because the act of congress, which had served as a motive to our reprisals, is repealed." from this exposition of the views of the french government, handed to us by the minister of exterior relations, we perceive that he places the rambouillet decree entirely to the account of the non-intercourse law of march; and from the course of reasoning used by him, it seems to be admitted that the decree, and the seizures under it, could not be justified, but while the obnoxious law was in force. but we here again meet with another of the mistakes of this most just government, which is so jealous of its honor and so friendly to our commerce. the fact happens to be that the law never was repealed. by its own limitation it expired with the then session of congress, and, of course, went out of existence on the th of june, . thus this poor law, which is now brought up in judgment against us, had quietly descended to the tomb of the capulets almost a year before the emperor and king thought it consistent with his interest, or for the honor of his empire, to commence his measures of retaliation. the limitation clause could not have escaped the attention of his majesty when he read the law; and, i trust, we yet have pride enough to believe that he knows there is an american congress, and notices the periods of our meeting and departure, if he is careless about our proceedings. when, therefore, napoleon issued the plundering decree of rambouillet, he knew that the law on which he placed his justification had long since expired. but he knew a further fact, that the law never did affect french vessels. the british navy kept them at home, and we excluded english vessels only. such was the practical and the only practical operation of our law. i am aware that the apologists of the emperor will point to the act of the st of june, , as reviving or continuing certain sections of the law of march. let me not be misunderstood, mr. chairman. i do not mean to insinuate that the emperor has apologists in this house, in this ark of independence and liberty of a great people; but, in whatever place this suggestion shall be offered, it may be answered that the french government have not noticed the last law in their decree, or in any of their official papers. and it may be further remarked that the law of june, like that of march, was limited to the end of the next session of congress, and, of course, ceased its operation on the st of may, . as the decree issued on the th of may, and the seizures under it were after that time, it would seem, to a man of common understanding, who believes the transactions between nations are, or ought to be, regulated by the rules of honest, plain dealing, that the emperor, when he had knowledge of the fact, would have loosened his hold on our property. and yet we find that, when we approach him on this subject, he laughs us to scorn. the object which i had in view, in this examination of the rambouillet decree, was, to mark its true character, to show that this decree emphatically outraged our neutral rights, and that, if it was submitted to by this country, our code of national rights will be found hereafter in the same books with those of the kingdoms which belong to the confederation of the rhine. our merchants are induced to adventure to france by a prospect of large profits, and by promises of great security if their vessels have not been "denationalized." they take there many a valuable cargo, until the amount of property becomes an object of imperial attention, and then it is seized upon by an irresistible and unrelenting hand, without notice, and upon pretexts void of any foundation. can a decree, or order, or edict, be pointed out in the long history of our wrongs and our sufferings, which is more strongly marked with injustice, or which more strongly "violates our neutral commerce?" i will not detain the committee by entering into a particular examination of the french decrees, which, in the commencement of the last year, authorized the seizure of such a number of american vessels at st. sebastians, at naples, and in the north of europe. it would lead me too far into the views and conduct of the french government towards this country, for the purposes of this discussion. but, sir, in this volume of documents, i see, with emotions which i am sure are in unison with those of the american people, the famous note, signed "champagny, duke de cadore," of the th of february last, written to justify those seizures, and, as he says, "that the president may the better know the friendly intentions of france towards the united states, and her favorable dispositions to american commerce;" in which we are told that we are "without just political views, without honor, and without energy." and are we so sunk in the estimation of the mighty conqueror, that he thinks it necessary and proper to use this as his official language towards us? surely, sir, he mistakes the character and the spirit of this people if he believes they are to be broken down, or brought into his views, by insults or threats. as our government had, a few months before, discharged and disgraced a british minister for a supposed insult by an insinuation, it was to have been expected that, on this occasion, equal spirit would be shown. but to such as formed corresponding expectations, what will be their feelings when they find that the only executive notice of the note is found in the letter of mr. smith to general armstrong, of the th of june last, in which the secretary says, that, "as the john adams is daily expected, and as your farther communications by her will better enable me to adapt to the actual state of our affairs with the french government, the observations proper to be made in relation to the seizure of our property, and to the letter of the duke of cadore, of the th of february; it is, by the president, deemed expedient not to make, at this time, any such animadversions." let us now see, mr. chairman, whether these decrees have been "so revoked or modified as that they ceased to violate the neutral commerce of the united states." these decrees have two distinct operations, the seizure of our property, and the subsequent sale of that property; and, without attempting to prove a proposition which appears self-evident, i shall take it for granted that, if it was an infringement of our rights to seize the property, it is equally an infringement of our rights to proceed to the confiscation and sale of such property. nay, sir, if we allow to the french government the plea of retaliation, the infringement of our rights will commence with the confiscation and sale of our vessels after the cause of retaliation has been removed by us, and known so to be by the emperor. a revocation or modification of these decrees, so that they should cease to violate our fair commerce, therefore, would look as well to an indemnity for the past as a security for the future; it necessarily includes a restoration of the property already taken, as well as an engagement against future captures. this appears to have been, at one time, the opinion of our administration; for you will find, by recurring to the letter from secretary smith to general armstrong, of the th of june, , which enclosed a copy of the law of may, the determination of our executive is thus made known: "if, however, the arrangement contemplated by the law should be acceptable to the french government, you will understand it to be the purpose of the president not to proceed in giving it effect, in case the late seizure of the property of the citizens of the united states has been followed by an absolute confiscation, and restoration be finally refused." and in the letter from mr. smith to general armstrong, of the th of july, this determination is expressed with added strength: "as has been heretofore stated to you, a satisfactory provision for restoring the property lately surprised and seized by the order, or at the instance of the french government, must be combined with a repeal of the french edicts, with a view to a non-intercourse with great britain; such a provision being an indispensable evidence of the just purpose of france towards the united states." without asking for the evidence which the president had as to the repeal or modification of these decrees, i now put it to the committee whether every member of it is not perfectly convinced that if any modification, or suspension, or repeal, has taken place, it goes no farther than to restrain future seizures, leaving the property already seized to take the course of confiscation and sale? do we not know, that, in the months of october and november, our vessels and merchandise have been brought under the hammer in pursuance of those decrees; and have we not lately seen, in our public journals, a list of some eighteen or twenty ships advertised by the french government for sale at bayonne, on the th of december? nay, sir, the executive was informed, before he issued his proclamation, by the letter from the duke of cadore to general armstrong, of the th of september, , that, "as to the merchandise confiscated, it having been confiscated as a measure of reprisal, the principles of reprisal must be the law in that affair." words cannot be found which would more satisfactorily "evince an inflexible determination" to retain the property. as the principles of reprisal are to be the law, it follows that a restoration of the property depends on the discretion of the emperor, and is not to be claimed by us as a matter of right, but of favor. and what have we to propose, according to the principles of reprisal, to obtain the restoration? is it, that we have suffered the non-intercourse law to expire? why, sir, this had taken place long before the letter of the duke of cadore. is it a restoration of french property seized under the law of non-intercourse? this cannot take place; because, in truth, there was no such seizure. we will now examine whether there has been such a revocation of the berlin and milan decrees as warranted the proclamation. and here let me remark that, when the president acted under this law, he was not exercising the treaty-making power. he was the mere agent of the legislature, and as such agent, he was confined and limited by his letter of attorney, the law. he had not, therefore, as has been asserted, a discretion, nor had he any thing to do with considerations of comity or courtesy. he was to ascertain when there was an actual and practical revocation, and then make known the fact; the consequences were left with the legislature. indeed, sir, this power to give publicity to a fact might have been committed to one of the secretaries, or to a clerk in the offices, and if it had, we should have smiled at the suggestion that its exercise depended on considerations of courtesy. mr. chairman, when the proclamation first appeared, my impression was, and such, too, i understood to be the general impression, that the president had some document unknown to the american people. the letter of the duke of cadore, of the th of august, was already before the public, but it was not credited that on this letter the proclamation had been issued. since we have received the message the subject is at rest. it is now known and acknowledged that the president had not, and to this moment has not, any other evidence of a revocation. now, sir, in this letter, i see neither the form nor the substance of a revocation. what is the understanding of the french courts and officers, on this subject. i have already presented you with that part of the letter of the duke of cadore, of the th of august, in which he says, that since congress have retraced their steps, by revoking the act of the first of march, "france is no longer interdicted to the americans." now, if this letter is in the form of a decree, it revokes or modifies the rambouillet decree equally with those of berlin and milan, inasmuch, as long as the former continued in force, france was interdicted to the americans. and yet we find, in a letter of the duke of cadore, of the th day of september, our minister inquiring, "has the decree of his majesty of the d day of march last been recalled?" and general armstrong, in his letter to mr. smith of the th of september, remarks, that this inquiry "may appear to have been useless, after the declaration, that american ships which will hereafter arrive in the ports of france shall not be subject to confiscation; but understanding from the council of prizes, that until some act be taken which had the effect of recalling, by name, the decree of the d of march, they must consider it both as existing and operative, and of course binding upon them," and he had presented the subject again. here, then, we have the opinion of the french court, most known and most important to us, the court of prizes, that the letter of the duke of cadore is not in the form of a decree, and has not the force and effect of a decree. in addition to this, we have the act of seizure of the brig new orleans packet, by the director of the customs at bordeaux, in december last, under the berlin and milan decrees. as the letter of the duke of cadore had been published in france prior to this period, no one will believe that if it was in form of an edict of the empire, the seizure would have been made. but if the contents of this letter had been embodied in a formal act, would it have amounted to such a revocation or modification of the berlin and milan decrees, as that they ceased to violate our neutral commerce? i remark first, that the revocation, if it be one, was a future and not a present revocation. "the decrees of berlin and milan are revoked, and, after the first of november, they will cease to have effect." now, sir, although there is an affected obscurity in this sentence, the intent is most obvious. as long as a law continues in operation, so long it must be unrepealed, and as these decrees were to have effect until the st of november, it follows, that on no construction can they be considered as revoked until that period. indeed, on this point the duke of cadore is quite explicit in his letter to general armstrong of the th of september, in which he tells him, that american vessels arriving in france before the first of november, although not liable to confiscation, "will be subjected to all the effects of the berlin and milan decrees." but, again: the revocation, if any, was not only future, but it was also conditional; "it being understood, that in consequence of this declaration, the english shall revoke their orders in council and renounce the new principles of blockade which they have wished to establish, or that the united states, conformably to the act you have just communicated, shall cause their rights to be respected by the english." a condition--a qualification--a restriction. is it not obvious, from the very terms of the letter, that it contains a condition that the repeal is a qualified one? the words "it being understood," are not only expressive of this, but they are singularly appropriate. if, however, we were inclined to doubt, we must be satisfied by the letter of the duke of cadore to general armstrong, of september th, in which it is said, that the emperor "repeals his decrees of berlin and milan, under the conditions pointed out in my letter to you of the th of august." our ministers, general armstrong and mr. pinkney, appear to have puzzled themselves much about this condition, to discover whether it was a condition precedent, or a condition subsequent. to me, sir, the idea of a condition subsequent to a repeal, is rather novel; but it may nevertheless be just. in common understanding, it is believed, that when a law is repealed it is extinct, and if it be so, then its appendage, the condition, would seem to be at an end of course. but in the view which i am about to take of this subject, it is not necessary to settle this point, as it must be conceded, that whether we call the condition a condition precedent, or a condition subsequent, the same consequence will follow: if the condition is not complied with, the decrees must be in force still. now, sir, it appears to me that the conditions, attached to this pretended or proposed repeal, are of a nature which have not, and will not be complied with. first, sir, as to the conditions on the part of england: "the english shall revoke their orders in council, and renounce the new principles of blockade which they have wished to establish." with respect to the orders in council, i have nothing to say either as to their justice or their policy. heaven knows they have been to us, from the moment of their inception, sore evils; the causes of great vexation, embarrassment, and losses; and i hope the period is not far distant when we shall be no longer disturbed by them. but, sir, i wish to call your particular attention to the other branch of the condition, that relating to blockades. we have been so long in the practice, and justly in the practice, of complaining of paper blockades, that at the first blush we are induced to believe the condition relates to them, and to them alone. are these the blockades which are intended? let the emperor and king answer for himself. in the official note from count champagny to general armstrong, of the d of august, , we have this declaration: "a place is not truly blockaded until it is invested by land and by sea; it is blockaded to prevent it from receiving the succors which might retard its surrender. it is only then that the right of preventing neutral vessels from entering it exists." but we have it under the hand and seal of the emperor himself, what he means by the "new principles of blockade." in the berlin decree there is an enumeration of real or pretended interpolations, on the part of great britain, in the law of nations; among which we discover these: "that england does not admit the right of nations as universally acknowledged by all civilized people; that she extends to ports not fortified, to harbors and mouths of rivers, the right of blockade, which, according to reason and the usage of civilized nations, is applicable only to strong or fortified ports." and it is declared that "the decree shall be considered as the fundamental law of the empire, until england has acknowledged that the rights of war are the same on land as at sea--and until the right of blockade be restrained to fortified places actually invested by competent forces." there can be no misunderstanding on this subject. the emperor offers to give up his berlin and milan decrees, if the british will renounce their new system of blockade; and in these very decrees he explains what he means by this new system; that, besides paper blockades, it is the attempt to blockade the mouths of rivers and harbors, and ports not fortified. now, sir, i will admit, if we could prevail on great britain and france thus to limit the right of blockade, it would add much to our security at home; for as we have no fortified places, although we may have places with fortifications, it would follow that we should never be subject to a blockade. but is it true that according to the usages of nations this is a novel system, or one now, for the first time, put in use by the british? or is it believed, that a nation like england, whose effective force for offence and defence is a maritime force, can or ought to subscribe to a system of blockade which confines its exercise and right to "fortified places actually invested?" what would be the effect of such a system in the present war? france has surely not to apprehend an invasion from england; and if any of the commercial places on her extensive coasts are fortified, the fortifications may be dismantled or destroyed with great safety. as soon as this is done they become "harbors and ports not fortified," and have no longer to apprehend any inconvenience from the pressure of a naval force. is it not obvious that england will not comply with her part of the condition, and that the emperor never expected that she would? as to the conditions on the part of this country--"the united states, conformably to the act you have just communicated, shall cause their rights to be respected." what rights, mr. chairman? the right of not being vexed or endangered by paper blockades? yes, sir, and more; the right of not being interrupted in a commercial intercourse with cities situated on rivers, as antwerp for instance; or to carry on a free trade with all the continental ports and harbors not fortified, although the whole british navy may be cruising at the mouth of the river, or in sight of the port. but we have a further declaration of neutral rights which the french emperor says he will allow when france has a marine proportioned to the extent of her coasts and her population, and which, so long as the british shall continue to be masters of the sea, he insists we shall claim and exercise. thus, in the note from count champagny to general armstrong, of the d of august, , "france admits the principle that the flag covers the merchandise. a merchant vessel, sailing with all the necessary papers from its government, is a floating colony. to do violence to such a vessel by _visits_, by _searches_, and by other acts of an arbitrary authority, is to violate the territory of a colony. this is to infringe on the independence of its government." in other words, the flag is to protect the property, and search is not to be permitted. i pray you, sir, to bear in mind, that since the formation of this government, and under every administration, the right of blockading, by an actual present and efficient force, ports and places not fortified; the right of search, and the principle, that enemy property is not protected by the character of the vessel, has been recognized or conceded. but how are we to cause these rights to be respected? by putting in force the non-importation law? suppose the british should not believe themselves excessively injured by this measure; that, in fact, it operated to their advantage, and we are suffered to bring on premature decay and old age, by this political quackery. would this satisfy the emperor? no, sir. he would soon tell us that we had not caused our rights to be respected. it is idle to believe that he will deem the non-importation a compliance with his condition; nor, to me, does his language convey this idea. we are to oppose, or declare ourselves against the british, and in the spirit of our law and of his declaration, we are to cause our rights to be respected, not by self-destroying measures, but by actual force and open hostility, if the english nation will not, without it, subscribe to the terms which have been presented to it. recollect the history of our embargo and former non-intercourse, the propositions made under them by our government to the french government, and how these propositions were received, and you will be satisfied of the nature and extent of the present condition. and now, let me ask, whether we are prepared for these conditions? whether we believe in all the rights which the french emperor condescends to claim for us from the british, although he will not admit them himself? and whether we are prepared to go to war for them? to me the conditions, both on the part of this country and great britain, appear inadmissible. at all events, i think that the president, before he acted on a proposition so loose and general, which admits of so much doubt, and can, by fair construction, be carried to such extravagant lengths, ought to have asked and received explanations and particulars. but it may be said that the letter of the duke of cadore, if not itself a decree, is evidence that there is a rescinding decree. to my mind, mr. chairman, it has internal marks to the contrary; but, without troubling the committee with any further comments on the letter, i observe, that viewing it as a mere matter of evidence, it may be fortified or explained by other evidence. i have already read to you parts of the letters from secretary smith to general armstrong, of the th of june and the th of july, which declare the determination of the president not to carry the non-intercourse law into effect against england, unless france not only revoked her decrees, but restored our sequestered property. we are to presume that our minister made known this determination to the french court, as it was his duty so to do. now, with this declaration before him, is it to be credited that the emperor would revoke his decrees, when he was given to understand that the revocation would lead to no result on our part, inasmuch as he did not release our property? is it not obvious, from this circumstance alone, that the letter is a mere proposition in answer to the one made by our government, expressive of the views, and stating the terms on which the emperor would revoke? again, sir, we have the letter of mr. russell to secretary smith, of the th of december, , informing our government that the brig new orleans packet had been seized at bordeaux a few days before, under the berlin and milan decrees, by the director of the customs. and we have had communicated to us, by the president, the note from mr. russell to the duke of cadore, of the th of december, stating this seizure to have been made under the decrees, and giving an additional fact, that the case of this vessel was the first which had occurred after the first of november, to which the decrees could be applied. as this seizure was made under the decrees, it shows the impression in france to be, that they still are existing and in force; and the evidence is the stronger, as coming from the custom-house of one of the principal trading towns, where surely the revocation must have been officially known, if it had taken place. i am aware it is said that mr. russell must have been misinformed as to the cause of the seizure, or that the custom-house officer mistook his duty. but as to both of these suggestions, i will only remind you of the silence of the french government. the remonstrance of mr. russell was handed to the french minister on the th of december, and the vessel which bore the despatches, brought paris accounts to the th of december, and did not leave france until the st of january. if mr. russell had any explanation or answer from the french government it would have been communicated to us; but he had none. the silence of the french minister is equal to an express affirmance of the act of the custom-house officer, and is an admission that the decrees have not been revoked. saturday, feb. . _commercial intercourse._ on motion of mr. eppes all the orders of the day were laid on the table, and the house resolved itself into a committee of the whole on the bill supplementary to the act concerning commercial intercourse, &c. mr. emott's motion being under consideration, to amend the bill so as to repeal the law of may last, &c., mr. rhea made a motion superseding that, viz: to strike out the whole of the bill. mr. eppes said, that when, on a former day, this bill, designed only for the relief of our own citizens, was under discussion, subjects not at all connected with its merits were brought into view. a gentleman from new york (mr. emott) presented to the house on that occasion his view of our foreign relations, and exercised all his ingenuity to show, as it is but too often the practice here, that the government of the united states is exclusively wrong, and the government of great britain exclusively right. it seems that in this enlightened age new duties are assigned to a representative. under the pressure of every injury which foreign influence can inflict, a representative is considered as discharging his duty, if, with a fine-spun web, he can present, under a suspicious aspect, either the motives or the acts of the executive branch of his government. no nation, ancient or modern, unless in the last stage of corruption, can be produced where, as in the united states, periods of difficulty have been seized by the representatives, and the weight of their talents exclusively employed for increasing the public embarrassments. the speech of the gentleman from new york, however well he may have covered it under mildness of manner and a fine-spun argument, is designed to convey to the people an idea, that the executive has manifested partiality towards france in the late arrangement. the gentleman tells us, that while the minister of one foreign nation was denounced here for an implied insult, the letter of the duc de cadore to mr. armstrong is passed over almost in silence; that the secretary of state, in a letter to general armstrong, tells him that the president thinks it unnecessary to make any remarks on it. the gentleman ought to have gone further, and stated the whole fact: that the letter of general armstrong in answer to the duc de cadore was approved by the president; that, by the approval, he adopts as his own the language and sentiments of that letter. the letter of general armstrong, by the approval of the president, has become the act of his government. for the sentiments contained in that letter the american government is responsible, and not general armstrong. the firm, manly, and eloquent reply of general armstrong to the duc de cadore stands precisely on the same footing as if it had been originally written under the directions of the government. general armstrong did not wait for instructions. he repelled, in a style comporting with the dignity of his station, the charges of the duc de cadore. the president, through the secretary of state, approves his letter, adopts it as his own, and says he has nothing to add. well, indeed, sir, might he say so, because the minister had already said, in a style as pleasing to his country as to his government, all that the occasion demanded. but, sir, the gentleman from new york cannot agree with his colleague in considering the president of the united states correct in issuing his proclamation. why, sir, does the gentleman disapprove of the president's proclamation? because, says the gentleman, the letter of the duc de cadore, of august, was not a repeal of the berlin and milan decrees. it is a mere promise that on a certain day they shall be withdrawn. when, sir, the president received the declaration of mr. erskine, the british minister, that, on a particular day, the orders in council would be withdrawn, and issued a proclamation founded solely on that declaration, his conduct was warmly approved by men of all parties. the gentleman from new york joined in the burst of applause heaped on that executive act. was the letter of mr. erskine a repeal of the british orders? unfortunately, we know practically it was not. was it such a repeal as the gentleman contends ought to have taken place of the berlin and milan decrees, viz: under the sign manual of the emperor? no, sir, it was just such a letter as that of the duc de cadore. in both cases the word of the minister was taken as a pledge, and, on examining the two letters, so far as they may be considered a pledge, the words are nearly the same. i approved of the arrangement with mr. erskine; so did the gentleman from new york. i cannot see any difference in the ground taken by the executive, except that one arrangement was with great britain, and the other with france. the one affected the interests of great britain; the other affects the interests of france. the gentleman from new york, more nice in distinctions than myself, may, perhaps, satisfy himself and the people that these two cases are marked by lines so strong as to render the conduct of the executive in the one case an object of applause and approbation for himself and his friends, and in the other of suspicion and censure. it is not, however, my intention to pursue the gentleman through his argument. there is one part of it which i consider it a duty to pass in review, inasmuch as it is calculated to give to the public an erroneous view of the grounds taken by the executive in the recent negotiation with great britain. the gentleman says, the president has not only required of great britain to withdraw her orders, but her blockades also. this, he says, she cannot and never will yield. this declaration is made, too, in the presence of the agent of great britain, who must have heard with delight the american executive held up to suspicion, and an american representative declare, on the floor of congress, that demands were made on great britain, not sanctioned by the law of the last session. in order, sir, to support this declaration, the gentleman gives a view of the demands of the executive on great britain totally incorrect and contradicted by every part of the correspondence before us. the gentleman tells you, that we have demanded of great britain not a withdrawal of the orders in council only, as contemplated by the law of last session, but of her "novel blockades." to establish the demands of the executive, he turns, not to the correspondence, but to the berlin or milan decrees, and takes for our demand on great britain the definition of blockade given by the french emperor. the gentleman is entirely mistaken as to the demand made of great britain by the executive. the revocation of but one blockade, viz: that of may, , is included in the demand of the executive. the features of this blockade render it different from all other blockades. it is, in fact, from its character, more like the order in council, a permanent regulation in commerce, than a blockade. i will, however, first show from the correspondence, that the president did not, under the act of the last session, require the revocation by great britain of any blockade except that of may, ; and then, that from the peculiar features of that blockade, it must have been included in the demand made under the act of the last session. in the message of the president, at the commencement of the session, pages th and th, we find the demand stated in the following terms: "under the modification of the original orders of november, , into the orders of april, , there is, indeed, scarcely a nominal distinction between the orders and the blockades. one of these illegitimate blockades, bearing date in may, , having been expressly avowed to be still unrescinded, and to be, in effect, comprehended in the orders in council, was too distinctly brought within the purview of the act of congress, not to be comprehended in the explanation of the requisites to a compliance with it. the british government was accordingly apprised by our minister near it, that such was the light in which the subject was to be regarded." this is the language of the president. in pages and of the correspondence, we find the declaration of mr. smith, our secretary of state, to general armstrong, in the following words: "if the non-intercourse law, in any of its modifications, was objectionable to the emperor of the french, that law no longer exists. "if he be ready, as has been declared in the letter of the duke of cadore, of february , to do justice to the united states, in the case of a pledge on their part not to submit to the british edicts, the opportunity for making good the declaration is now afforded. instead of submission, the president is ready, by renewing the non-intercourse against great britain, to oppose to her orders in council a measure which is of a character that ought to satisfy any reasonable expectation. if it should be necessary for you to meet the question, whether the non-intercourse will be renewed against great britain, in case she should not comprehend, in the repeal of her edicts, her blockades which are not consistent with the law of nations, you may, should it be found necessary, let it be understood, that a repeal of the illegal blockades of a date prior to the berlin decree, namely, that of may, , will be included in the condition required of great britain; that particular blockade having been avowed to be comprehended in, and, of course, identified with the orders in council. with respect to blockades, of a subsequent date or not, against france, you will press the reasonableness of leaving them, together with future blockades not warranted by public law, to be proceeded against by the united states in the manner they may choose to adopt." in pages and , we have the declaration of general armstrong and the duke de cadore. mr. e. then read the following: _from general armstrong to mr. pinkney._ paris, _january_ , . "sir: a letter from mr. secretary smith, of the first of december last, made it my duty to inquire of his excellency the duke of cadore, what were the conditions on which his majesty the emperor would annul his decree, commonly called the berlin decree; and whether, if great britain revoked her blockades, of a date anterior to that decree, his majesty would consent to revoke the said decree? to these questions i have this day received the following answer, which i hasten to convey to you by a special messenger: answer.--"the only conditions required for the revocation, by his majesty the emperor, of the decree of berlin, will be a previous revocation, by the british government, of her blockades of france, or a part of france, (such as that from the elbe to brest, &c.,) of a date anterior to that of the aforesaid decree." in page , we have the statement of lord wellesley to mr. pinkney: "i have the honor to acknowledge the receipt of your note of the fifteenth ultimo, wherein you request to be informed whether any, and if any, what blockades of france, instituted by great britain during the present war, before the first day of january, , are understood by his majesty's government to be in force? i have now the honor to acquaint you, that the coast, rivers, and ports, from the river elbe to brest, both inclusive, were notified to be under the restrictions of blockade, with certain modifications, on the th of may, ; and that these restrictions were afterwards comprehended in the order of council of the th of january, , which order is still in force." in page of the correspondence, lord wellesley declares, in a letter to mr. pinkney: "the blockade, notified by great britain in may, , has never been formally withdrawn. it cannot, therefore, be accurately stated, that the restrictions which it established rest altogether on the order of council of the th of january, ; they are comprehended under the more extensive restrictions of that order. no other blockade of the ports of france was instituted by great britain, between the th of may, , and the th of january, , excepting the blockade of venice, instituted on the th of july, , which is still in force." from this, sir, it appears that if we are to credit the president, the secretary of state, general armstrong, the duc de cadore, and the british minister, lord wellesley, the demand was confined to the blockade of . was this blockade such a violation of the neutral rights of the united states as to come decidedly within the act of the last session? let us examine its features. this blockade is a compound one, presenting three distinct characters: . it obstructs a trade from one port to another of the same enemy--france for example. this trade has been denied latterly though not formerly, by great britain, to be free to neutrals. the united states assert the neutral right to it. . it obstructs a trade from the port of one enemy to the port of another--from a french to a dutch port, for example. this is a principle not before asserted by great britain. the present cabinet of great britain contended against its conformity to the law of nations, in opposition to their predecessors, who attempted to justify the orders of january, , on that principle. . it obstructs the direct trade of neutrals from their own country to any part of the coast from the elbe to brest--a coast not less than a thousand miles. for this part of the blockade there can be no defence which is not applicable to the orders in council. this blockade has been continued for four or five years. no force, either adequate or inadequate, has been stationed for carrying it into effect. no new notification has been given. it is, in fact, like the orders in council, a permanent regulation of commerce, and has nothing of the character of a blockade, except the mere name. this blockade consists in great part of the same prohibition with the orders of january, , in which it is said to be comprehended; that is, against a trade along the belligerent coast. if the orders be unlawful, therefore, the blockade must be so; and if the orders be repealed as a violation of neutral trade, in compliance with the act of congress, the obligation to repeal the blockade, as a like violation, cannot be contested. this blockade of may, , is in violation of the principles laid down by all authors on the subject of blockade. it is in violation of the principles laid down in all the treaties which attempted to define a blockade. it is in violation of the principles contended for by every administration under the american government, from the period of washington to the present time. the correspondence under general washington's administration, between the secretary of state and mr. hammond, may be referred to for the principles asserted under that administration. in the correspondence before us we have the principles as laid down by general marshall and mr. king. to these i will refer. mr. e. then read the following extracts of letters from mr. king and mr. marshall: _from mr. king._ "seven or eight of our vessels, laden with valuable cargoes, have been lately captured, and are still detained for adjudication; these vessels were met in their voyages to and from the dutch ports, declared to be blockaded. several notes have passed between lord grenville and me upon this subject, with the view, on my part, of establishing a more limited and reasonable interpretation of the law of blockade, than is attempted to be enforced by the english government. nearly one hundred danish, russian, and other neutral ships have, within a few months, been, in like manner, intercepted, going to and returning from the united provinces. many of them, as well as some of ours, arrived in the texel in the course of the last winter; the severity of which obliged the english fleet to return to their ports, leaving a few frigates only to make short cruises off the texel, as the season would allow. "my object has been to prove that, in this situation of the investing fleet, there can be no effective blockade, which, in my opinion, cannot be said to exist without a competent force, stationed and present at or near the entrance of the blockaded port." _extract of a letter from mr. king to lord grenville, dated_ london, _may_ , . "it seems scarcely necessary to observe, that the presence of a competent force is essential to constitute a blockade; and although it is usual for the belligerent to give notice to neutral nations when he institutes a blockade, it is not customary to give any notice of its discontinuance; and that consequently the presence of the blockading force is the natural criterion by which the neutral is enabled to ascertain the existence of the blockade, in like manner as the actual investment of a besieged place is the only evidence by which we decide whether the siege is continued or raised. a siege may be commenced, raised, recommenced and raised again, but its existence at any precise time must always depend upon the fact of the presence of an investing army. this interpretation of the law of blockade is of peculiar importance to nations situated at a great distance from each other, and between whom a considerable length of time is necessary to send and receive information." _extract of a letter from mr. marshall, secretary of state, to mr. king, dated_ september , . "the right to confiscate vessels bound to a blockaded port, has been unreasonably extended to cases not coming within the rule, as heretofore adopted. "on this principle, it might well be questioned, whether this rule can be applied to a place not completely invested by land as well as by sea. if we examine the reasoning on which it is founded, the right to intercept and confiscate supplies, designed for a blockaded town, it will be difficult to resist the conviction that its extension to towns, invested by sea only, is an unjustifiable encroachment on the right of neutrals. but it is not of this departure from principle--a departure which has received some sanction from practice--that we mean to complain. it is, that ports, not effectually blockaded by a force capable of completely investing them, have yet been declared in a state of blockade, and vessels attempting to enter therein have been seized, and, on that account, confiscated." i have shown, from the correspondence, that the blockade of may, , was the only one included in the demand of the executive. i have shown that it is not only a violation of our neutral rights, but of the principles contended for by men of all political parties under every administration of this country; and i cannot but express my regret that the gentleman from new york should consider that, under the law of the last session, this blockade ought not to have been included in the demand of the executive on great britain; that he should declare in the hearing of the british agent that demands had been made by the executive of the united states which it would be extremely convenient for us if great britain would allow, but which she never could yield. the gentleman from new york has entered into an argument to show that the berlin and milan decrees are not repealed. we have just heard of the arrival of a french minister; he has left france at a time to bring us certain information on this question. i have no wish to enter on this interesting question, with a bandage round my eyes. whether france has complied with her engagements; whether france has failed in her engagements, cannot be a subject of ingenious speculation many days longer. whatever may be the information received, i shall endeavor to adhere to what i deem the real interests of my country, and, so far as i am able, to maintain its rights against the unprincipled aggressions of every foreign nation. i will now make a few observations on the bill before the house. it contains but a single section, and exempts from forfeiture goods owned wholly by citizens of the united states, which shall have departed from a british port prior to the second day of february, . when the report of the secretary of the treasury on the subject of modifications of the non-intercourse system was referred to the committee on foreign relations, it appeared to be the unanimous sentiment of the committee, that goods which had left a british port, before the president's proclamation reached the port, ought to be exempt from the penalty of the non-intercourse law, although they might not arrive until after the d day of february. it was considered not inconsistent with an honest compliance with our engagements with france, and seemed to be required by that general principle of policy which is adhered to in all free countries, of allowing sufficient notice to its citizens of the commencement of penalties and forfeitures. the bill for enforcing the non-intercourse system was reported with that limited provision. after the bill was printed various statements were received by the committee, all tending to show that the orders of our merchants were sent out in september and october; that, from the change in the actual state of commercial capital in this country, goods were at present purchased with cash, and not only became the property of our citizens under the orders of merchants sent before the president's proclamation issued, but were at the risk of the purchasers; that these goods were actually paid for before the president's proclamation issued; that they could not be brought in before the second day of february. the committee having previously decided that time ought to be allowed for the president's proclamation to reach a british port, and taking into view the great injury our own citizens would sustain from a rigorous construction of the law, determined to extend the time to the ultimate period at which a citizen could put his property on board without infringing the laws of his country. it is not supposed that the construction put upon the law is strictly within its letter--it is, however, perfectly within its object. it was designed to operate on the nation refusing to modify or withdraw its edicts. to give it a construction which would either confiscate property _bona fide_ american, or lock it up in british ports, would be to destroy our own resources, and produce no effect on great britain. under the sixth section of the law, it is not made unlawful to put on board british manufactures with the intent to import them, until the expiration of the three months after the proclamation; its being unlawful after that period depended on great britain's following the example of france and revoking her edicts; according, therefore, as the citizen was more or less sanguine, his interest might be more or less involved by supposing that great britain would withdraw. orders sent previous to the issuing of the president's proclamation violated no existing law. those sent afterwards cannot be considered as given in violation of law, inasmuch as the commencement of the law depended on a contingency, viz: the modification or withdrawal of the british orders. there is another circumstance which operated on the committee: the law of the last session was not considered by the committee as a plain rule of action which every citizen could clearly comprehend, and so arrange his affairs as to avoid its penalties. the fourth section of the act of last session revives certain sections of another act, on the happening of a certain event, three months after that event shall have been proclaimed by the president. this reviving section does not declare that on and after three months from the date of the president's proclamation there shall be non-intercourse, but that particular sections of a former non-intercourse law shall be revived. each of the revived sections contain the words " th of may next," and it has been made a question whether these words are revived as part of the sections. it is not supposed by me that such is a proper construction of the law. it is only stated for the purpose of showing that the law was not in that clear, decided form in which penal statutes ought to be enacted. in the construction given to the law, more regard was paid to its objects and principles than to its strict letter. and if, for the purpose of affording relief in cases peculiarly hard and operating on our own citizens exclusively, we have placed on the law a construction not warranted by its letter, i hope we shall be justified by the purity of the motives under which we have acted. mr. emott explained. mr. sturges said be was happy that he felt himself so situated that he could avoid that course of discussion upon the present occasion, so much reprobated by the honorable gentleman (mr. eppes) from virginia. he said he should not undertake to enter into a discussion of our foreign relations, nor say much upon our restrictive system; that his friend from new york (mr. emott) had already done that fully and ably. he said he was at present inclined to support the amendment proposed by the honorable gentleman, (mr. rhea, of tennessee,) and if the words should be stricken out as proposed by that gentleman, (as one good turn deserved another,) he hoped he would be disposed to support a proposition, which he (mr. s.) would then submit to the committee. if the committee should agree to strike out, mr. s. would then propose to insert in lieu thereof, after the words "be it enacted" the following words, (which he read to the committee,) viz: "that an act entitled an act concerning the commercial intercourse between the united states and great britain and france, and their dependencies, and for other purposes, passed may , , be and the same is hereby repealed." mr. s. said he was inclined to favor the amendment of the gentleman from tennessee on another ground. he was not willing to imply by any vote of his a recognition of the efficacy of the non-intercourse law, so called, which could not, in his opinion, upon any principle, have any operative force, until the th of may next. he flattered himself, if gentlemen would be so good as to attend to him, that he should be able to demonstrate to their satisfaction the truth of this position; and that the chairman of the committee of foreign relations, exercising his usual candor, would himself be satisfied. the law, passed march , , contained a number of sections which went to prevent importations from great britain and france, and their dependencies. this law (containing a clause limiting its duration) was to expire at the end of the next session of congress. the then next session of congress ended the last of june, . the law of march, , therefore, then expired. the law of may st, , enacted that certain sections of that of march, , should be revived upon certain contingencies. those sections, thus revived, are the d, th, th, th, th, th, th, th, and th. mr. s. then recurred to those sections, and read the third, which is as follows: [the section was here read.] mr. s. said it was unnecessary to read the other sections to which he had referred, as the phraseology, as to the time when they were to take effect, was the same as in the section which he had read. he said it would not answer the purpose of gentlemen who held a different opinion from him, to argue in such a case as the present, from the intention of the legislature. he said it was a principle, in construing penal statutes, to construe them strictly. but he said it was not necessary for him, in support of his position, to resort to this rule of construction. the words of these sections are explicit, and the meaning plain. they are revived in the law of may, . they must be considered as revived in _todidem verbis_--as the whole of the sections are revived generally, it is not competent to say that one part of the section is revived, and not the other part. if they had been transcribed _verbatim_, and incorporated in the law of may, , there could have been no question; and there can be no difference as to this point between that case, and reviving them without excepting any part. mr. s. therefore concluded, that as the expressions in the sections referred to were, that they were to take effect the th of may next; and the law reviving them passed the st of may, ; that they cannot have any efficacy until the th of may, . and he said the gentleman from virginia, (mr. eppes,) in attending to this point, had implied his doubts upon it by saying, that as there might be doubts among lawyers, though among unlearned men there could be none, the committee of foreign relations, in reporting the bill now under consideration, were disposed to give a liberal construction to the meaning of the legislature. but, said mr. s., this cannot help the matter. no new law, in the nature of an explanatory law, can give efficacy to the former one, if that law would otherwise have no force. if, then, he was correct in his ideas upon the subject, and he thought every lawyer in the house must be of his opinion, mr. s. asked, what is the consequence? he said that, from the d of february, any seizures which have been or shall be made by your custom-house officers, cannot be considered as legal. your federal courts cannot condemn property so seized; and in case they are made, your state courts will sustain actions of trover and trespass in favor of the owners thereof against such officers. mr. wright.--mr. chairman: the gentleman from new york (mr. emott) labored yesterday for three hours on his proposed amendment to the bill under consideration, and exercised all his ingenuity to seduce us into a violation of the faith of the nation, pledged in the act entitled "an act concerning the commercial intercourse between the united states and great britain and france and their dependencies, and for other purposes." by this act the nation pledged itself to great britain and to france, "that if either of them should so revoke or _modify_ their edicts that they should cease to violate the neutral commerce of the united states, that the president _should_, by proclamation, declare the same; and that, three months after the date of said proclamation, no goods, wares, or merchandise, the growth, produce, or manufacture of the other nation, her colonies or dependencies, _should_ be imported into the united states." the government, strictly preserving her neutral character, at the same moment presented to both nations the same proposition, and by the solemnity of that act, in the face of the world, pledged the faith of the nation to the faithful performance of the condition above stated, on their part to be performed, in the event of either great britain or france so revoking or modifying their edicts that they should cease to violate the neutral commerce of the united states. france, on the th of august, , did so revoke her edicts that they should cease to violate the neutral commerce of the united states, after the second day of november; and, although the fact has been established by the letter of the duke of cadore, of the th of august, to general armstrong, our minister at paris, and by him communicated to the president of the united states; and, although the president did, by his proclamation, bearing date the second of november, in obedience to the said act of congress, declare "that the edicts of france violating the neutral commerce of the united states had been so revoked or modified, that, from and after the second day of november, they would cease to violate the neutral commerce of the united states;" whereby, after the expiration of three months from the date of said proclamation, by virtue of the act aforesaid, "no goods, wares, or merchandise, the growth, produce, or manufacture of great britain, her colonies or dependencies, should be imported into the united states, unless she, before the expiration of that time, revoked her edicts." yet, sir, this gentleman, to the bill on the table contemplating a faithful execution of the non-intercourse law against great britain, has proposed an amendment that "no vessel or merchandise shall be liable to seizure or forfeiture, on account of any infraction, or presumed infraction, of the provisions of the act to which this act is a supplement;" thereby substantially to repeal the non-intercourse act, although france has revoked her decrees, and britain has refused to revoke her orders in council, and by the last information from our minister in london, every spark of hope of their being revoked had been extinguished. that gentleman, a representative of the american people, has proposed this direct breach of public faith, and as a pretext to the unprincipled act, has had the temerity to declare "that the president had no authority to issue his proclamation; that the assurances of france to our government were deceptive; that the berlin and milan decrees were not revoked; and that the non-intercourse act is not in force;" and thus has arraigned the president for issuing his proclamation. by the constitution, the departments of the government are distinctly marked, and the president authorized, as the legitimate organ, to discharge every function of the executive. besides, the non-intercourse act has expressly authorized and directed him, by proclamation, to declare the fact of the revocation or modification of the edicts which the belligerents were by that act invited to revoke. as well might that gentleman question the legitimacy of a treaty after it had been ratified and declared by proclamation, or an act of congress after it had passed the usual forms and been duly published. sir, this act of the president, as to every fact stated, implies absolute verity, and, like any other record, can be tried only by itself. had the gentleman contented himself with the discharge of his legislative duties, and indulged the president in the exercise of his executive functions, we should have been relieved from a long speech, calculated only to inculpate the president and expose the gentleman's devotion to great britain. how, i ask, could the president act a different part, from the evidence in the case? the duke of cadore, the french minister of foreign relations at paris, in writing, informed general armstrong, the american minister at that court, on the fifth of august, "that he was authorized to declare to him, that the decrees of berlin and milan are revoked, and that after the first of november, they will cease to have effect; it being understood that, in consequence of this declaration, the english shall revoke their orders in council, and renounce the new principles of blockade which they have wished to establish, _or_, that the united states, _conformably_ to the act you have just communicated, shall cause their rights to be respected by the english." general armstrong immediately communicated it to the president, who, being thus in possession of the information, was not only authorized, but bound to issue this proclamation. i would ask, if this diplomatic evidence, the established mode of communication between nations, is not to be received and respected, if national confidence is not destroyed, and an end put to all diplomatic intercourse? was not the president, in good faith, bound to believe the fact, and, believing it, bound to act as he did? sir, if great britain had made the like communication through lord wellesley to mr. pinkney, and he to the president, who had, thereupon, issued his proclamation, what would have been the conduct and language of this gentleman and those who think with him in political opinion? they would, i have no doubt, been prepared to eulogize the president, and publicly approve the act. in this assertion i am not left to conjecture, but will prove it by the most unequivocal evidence, if the gentlemen are consistent with themselves. you will recollect that, by the act of the first of march, eighteen hundred and nine, interdicting the commercial intercourse between the united states and great britain and france, and their colonies and dependencies, after a certain period, unless they should so revoke or modify their edicts that they should cease to violate the neutral commerce of the united states, the president in the case of either power, so revoking or modifying their edicts, was authorized by proclamation to declare the same, whereby the interdictions were, as to the power so revoking, to be suspended, and in force only against the other; and i hope you never will forget the deep game that was played by great britain on that occasion, and the diplomatic trick that was practised on our administration by mr. erskine's memorable treaty. the president _then_ placed full faith in the act of the british plenipotentiary, and, on the signing of that treaty which revoked the orders in council, immediately issued his proclamation, and thereby dissolved the commercial injunction, whereby great britain was supplied with the necessaries of her existence. then the president acted promptly, as in the case of france; then he acted on the information of the british minister as he did in the case of france on the information of the french minister. then the treaty revoking the orders in council was rejected by the british government; but now, in the case of france, the revocation of her decrees is confirmed and carried into full effect. but the proclamation in the case of france is denounced by the gentleman from new york as neither formal, substantial, nor by authority, although by comparing it with the proclamation in the case of great britain, which i hold in my hand, it will be found formally and substantially a copy of it, varied only as to the government to whose proceedings it relates. when i assure you that the president's proclamation in the case of great britain met with the approbation of the gentleman from new york and his political friends, you will feel surprised at their partiality; but, when you examine the resolution of the house of representatives approbating the conduct of the president in that case, you will feel no doubt of the fact. sir, this gentleman has told us that the non-intercourse act is not in force, and that the american people will not submit to its execution, notwithstanding the revocation of the french decrees, the continuation of the british orders in council, and the president's proclamation. whence does this gentleman derive the power of declaring an act of congress not in force, declared by the president's proclamation to be in force? or in what section of the union does the gentleman presume to say the american people will not submit to the law? that that gentleman's speech was intended to sow sedition among the people, and to encourage insubordination to this law, is too obvious. sir, the decrees of france, now they are revoked, seem to be more obnoxious to that gentleman than the british orders in council, now in full force. he denounces the emperor for the rambouillet decree, issued the twenty-third of march, eighteen hundred and ten; which subjected the ships of america to condemnation entering the ports of france, which the emperor declares was an act of retaliation; because congress had by their act of march, eighteen hundred and nine, subjected the vessels of france to condemnation entering the ports of the united states, yet that gentleman, when speaking of the british blockading order of eighteen hundred and six, issued without even a pretext, which by proclamation without investment subjected our ships to condemnation entering the ports of france, says, "with respect to their orders in council i have nothing to say as to their justice or their policy." he is prepared to condemn france for her act of retaliation, but he is not prepared even to speak of great britain's new paper blockading system, much less to declare it unjust or impolitic; although sir william scott, in robinson's rep. page , expressly declares, "that no vessel was liable to condemnation for entering a port alleged to be blockaded, unless it was invested by such a naval force as to make the entry therein hazardous." sir, i am no apologist for france--nor do i know how any american, particularly a member of congress, can be the apologist for either, after france and england have both expressly admitted, that their orders in council and decrees were direct violations of the law of nations, and adopted from necessity, as a measure of retaliation against each other, and have each charged the other with the first aggressions on our neutral rights. on examining that subject, i find that england, by her orders in council of may, eighteen hundred and six, by proclamation had placed france in a state of blockade; that france in eighteen hundred and seven had placed the british isles in a like manner in a state of blockade; that england, by her orders in council of the eleventh of november, eighteen hundred and seven, laid a toll on neutral vessels, and made them pass through her ports; france, by her decree of the seventeenth of december, eighteen hundred and seven, declared the vessels submitting to that order denationalized, and lawful prize; so that by their new principle of blockade, and their unprincipled retaliations, the commerce of the united states was cut up by the roots. the american government, anxious to preserve the remnant of the property of the american merchants, that had escaped the rapacity of the tyrant of the ocean, on the twenty-second of december, eighteen hundred and seven, passes the embargo law, which the seditious clamors of certain arch traitors in the eastern states, the violation of the law by treason and cupidity, induced congress on the first of march, eighteen hundred and nine, to repeal, and to pass the present non-intercourse law, continued, under which france has revoked her decrees of berlin and milan, and now expects us to fulfil the conditions which we voluntarily imposed on ourselves, in the event of either revoking their decrees. sir, while great britain finds such able advocates on this floor, she will find no necessity to redress our wrongs, but will wait the issue of our proceedings in congress, to see if our remedial laws are not repealed, or our citizens excited to oppose their execution. but we ought not to be surprised at this, when we take a retrospective view of their conduct, their united and uniform opposition to the administration for many years. they have reprobated every measure--mr. erskine's british treaty only excepted--and, as soon as that was rejected by the british government, as being made contrary to instructions, our administration was charged with making it, knowing that mr. erskine had no authority, and with seducing him to make it contrary to instructions. afterwards, when mr. f. j. jackson, of copenhagen memory, was sent over as a minister, while his hands were yet stained with the innocent blood of the inhabitants of copenhagen, and insulted the administration with the charge of making the treaty with mr. erskine, knowing that he had no authority to make it, and after the peremptory asseveration "that government had no such knowledge, that with such knowledge no such arrangement would have been made," and "that no such insinuation could be admitted," he replied, "that he made no insinuation, without being able to substantiate a fact, and in that i must continue;" thereby persevering in the charge of falsehood in the administration for which he was dismissed. again our government was expressly charged with knowing that mr. erskine had no authority, and with dismissing mr. jackson without any just cause; that his charge was true, and that in this the government acted under the influence of france. in order to make such an impression on the public mind, mr. jackson is treated with uncommon attention. when he arrives at baltimore he is surrounded by tories, royalists, burrites, and british agents, and treated with great politeness--when he arrives in philadelphia, he is overwhelmed by the civilities of refugees, tories, burrites, and united states' bank directors--when he arrives at new york, he is received with open arms by a set of beings of the same description, who invite him to a public dinner, and to test their attachment to the british government treat him to "god save the king"--when he reaches boston, there is great parade indeed; he is welcomed to the city by tories, traitors, disorganizers, and embargo-breakers, and fanueil hall, once the council chamber of the patriots of the revolution, is prostituted to the disgraceful purpose of a public dinner to this disgraced minister, and there we see a distinguished senator of the united states testing his loyalty by the toast of "britain's fast anchored isle, the world's last hope." after this hasty review of the past, we ought not to be surprised at any measures that may be taken against the administration, when great britain is in the question. saturday, february . _commercial intercourse._ mr. milnor said: mr. chairman, when i take a view of the course which has been pursued in relation to this subject, during the present session, i confess i feel greatly surprised that we should be called upon to adopt the present measure. it will be recollected, sir, that, at a very early period, the honorable chairman of the committee on foreign relations, reported a bill supplemental to the act of the st of may last. although the gentleman did make one or two feeble attempts to call it up for consideration, yet it was manifest that there was a general indisposition to act upon it at that time. this, in the opinion of myself and many others, arose from a doubt in the good faith of the emperor of the french. it was true that he had, through the duke of cadore, declared that the berlin and milan decrees were revoked on the th of august and that they should cease to have effect after the first of november; and it was also true that the president of the united states had, by his proclamation of the d of november, declared, not simply that this promise had been given, but that the decrees were revoked, and had ceased to operate. notwithstanding this declaration of the president, the previous conduct of the french emperor inspired an almost universal doubt of his good faith, and the curious character of the declaration made by cadore, was calculated to increase it. the decrees of berlin and milan were revoked; that is, dead on the th of august, and ceased to have effect; that is, to live on the first of november; thus this creature had the wonderful faculty of being dead and alive at the same time; of ceasing to have effect, and acting with full vigor at the same instant. while all was doubt and hesitation, despatches were received from mr. russell, our chargé d'affaires at paris, which made it apparent that the decrees which were to cease to have effect on the first of november, were, in the month of december, still in existence, and in full and practical operation. it is now evident that the president was duped by the french emperor, and led to issue a proclamation on the faith of his promise, declaring a fact which did not exist. so convinced were the house that this was the true state of the case, that the honorable chairman of the committee on foreign relations himself moved to recommit the bill he had previously introduced, and it was done. what, then, i would ask, sir, has since occurred to alter the face of affairs, to induce this new attempt to fasten on the restrictive system against our intercourse with great britain? is there any thing in the last communication from the president, calculated to produce such an effect? on the contrary, it furnishes the most conclusive evidence of the treachery of bonaparte, and ought to serve as a beacon to warn us against trusting him further. it is true that there is a letter from mr. pinkney to lord wellesley, dated december th, in which the former labors to prove, that cadore's note to armstrong is an absolute repeal of the french decrees, without any conditions precedent, and that therefore the british government ought to be satisfied of its validity, and take immediate measures for revoking their orders and blockades, agreeably to their promise. but, it unfortunately happened that, on the same day on which our minister at london was performing his duty, in transmitting his able but theoretical argument to the british ministry, our minister at paris was also performing his duty in remonstrating against the practical operation of those very decrees, which were to have ceased to have effect on the first of november. [here mr. m. read the letter of mr. russell to the duke of cadore, dated december th, remonstrating against the seizure of the brig new orleans packet, it being the only case, as declared by mr. russell, to which the decrees could be applied subsequent to the first of november.] i recollect, sir, when mr. russell's correspondence was communicated to this house, an apology was set up for the french emperor. it was alleged that the president's proclamation had not arrived in france at the time of the seizure of the new orleans packet, and that bonaparte, having received no evidence of the intention of the american government to fulfil their engagement, had used the precautionary measure of seizing the vessel, until he should receive some evidence of our good faith; and we were exultingly told that the president's proclamation would put all to rights, by satisfying his doubting majesty of our sincerity, and would induce him to release all property seized subsequent to the first of november, and once more to put an end to those nine-lived decrees. how has this prediction been verified? the president's proclamation was communicated to the french government on the th of december, two days after mr. russell's remonstrance; and yet, for any thing we know, that remonstrance remains unanswered, and the new orleans packet remains under seizure to this very day. it is true that, after waiting thirteen days, his majesty condescended to direct the partial suspension of the decrees, thereby giving the most positive proof not only of their existence, but of their active operation. on the th of december, the dukes of massa and of gaete, by the direction of their master, severally wrote a letter to the officers connected with their respective departments, directing them to suspend the operation of those very decrees, so far as respected the condemnation of vessels and cargoes seized after the first of november; not only those then in custody, but such as should thereafter be seized. i will read a part of those letters for the purpose of refreshing the memories of gentlemen on the subject. the duke of massa writes to the president of the council of prizes as follows: "in consequence of this engagement entered into by the government of the united states, to cause their rights to be respected, his majesty orders that all the causes that may be pending in the council of prizes, of captures of american vessels, made after the first of november, and those that may in future be brought before it, shall not be judged according to the principles of the decrees of berlin and milan, but that they shall remain suspended; the vessels captured or seized to remain only in a state of sequestration, and the rights of the proprietors being reserved for them until the d february next, the period at which, the united states having fulfilled the engagement to cause their rights to be respected, the said captures shall be declared null by the council--and the american vessels restored, together with their cargoes, to the proprietors." the letter of the duke of gaete is of a similar import. i will read a single paragraph, which is as follows: "his majesty having seen in these two pieces" (the president's proclamation and gallatin's circular to the collectors) "the enunciation of the measures which the americans purpose taking on the second of february next, to cause their rights to be respected, has ordered me to inform you that the berlin and milan decrees must not be applied to any american vessels that have entered our ports since the first of november, or may enter in future; and that those which have been sequestered, as being in contravention of these decrees, must be the object of a special report." here, sir, we find these two officers, by direction of their master, explicitly recognizing the existence of the berlin and milan decrees, and suspending their operation not as to sequestration, but only as to condemnation. not only those which had arrived after the first of november, but those which should thereafter arrive, were to be held in a state of sequestration, and to be subject to a special report. with this plain statement before their eyes, will gentlemen assert, can they possibly believe, that the decrees were revoked and ceased to have effect on the first of november? they surely cannot. if, then, the declaration of the fifth of august is proved to be false, and the assurance that the decrees should cease to have effect after the first of november was mere delusion, what becomes of the act of the first of may, and of the president's proclamation? sir, they are mere dead letters, having no binding force or operation. the practical operation of the act of the first of may was to depend upon the performance of certain conditions on the part of one or the other of the belligerents, and the president's proclamation was intended as a mere notification of such performance. admitting, then, that a faithful performance of the pledge of the fifth of august, on the part of france, would have had a binding force on us to carry our part of the agreement into effect, can any man under the existing circumstances believe we are so bound? can a violation of a solemn pledge confer an obligation which was only intended to be created on the complete fulfilment of that pledge? surely not. sir, the law of the first of may, professed, on the face of it, to be impartial towards the two nations who have violated our rights. it promised that, if either would so revoke or modify her edicts as that they should cease to violate the neutral commerce of the united states, in that case certain restrictive measures should be revived against the other. have either complied? france did, indeed, make a declaration that her edicts were revoked, and should cease to have effect on a certain day. that day has long since passed, and, for any thing we know, those edicts are in full operation. nay, we have positive proof of their active existence, nearly two months after they were to have ceased; for, on the th of december, their operation as to the condemnation of american property was suspended, while their power to sequester was absolutely recognized and continued. with such glaring, such positive proof before our eyes, of the perfidy of france, we are about to act as though we believed she had performed her promise with the utmost good faith. nay, more, sir; if she had, indeed, complied with her engagement, she could require nothing more of us than the act of the st of may last; that was the full amount of our engagement, the utmost limit of our bond. upon, and in consequence of that, was the emperor's promise founded. yet we are not satisfied with that; persisting, in the face of the most positive and conclusive testimony to the contrary, to affect to believe that he has performed his promise, we are going beyond our contract; and, lest some doubts should arise of the emperor's want of faith, lest our courts should decide, as they must decide, that the decrees being still in force, the act of the first of may is a mere dead letter, we are about to volunteer our services, and, by the section of the bill now under consideration, to revive those sections of the old non-intercourse law which were intended in a certain event to have been revived by the act of the first of may; to revive them against great britain, and that without exacting any conditions on the part of france. and must this sacrifice be made in order to bolster up the president's proclamation so prematurely issued? must the best interests of the nation be put to hazard to save him the mortification of acknowledging his error and retracing his steps? here, i fear, lies the true motive for our present procedure. this restrictive system is now to be revived against england, the french decrees being in full force and operation against us at the same time. is this an honest neutrality? is it equal and exact justice to those two nations? is it not rewarding the perfidy of the one at the expense of the other, and at the expense of ourselves? let us be cautious how we proceed in this course. if france choose, in consequence of our non-intercourse law of , which was equal in its operation as to both nations, to take it so much in dudgeon as to confiscate the whole of the american property within her power, even that which had sought the rights of hospitality in her ports, how much more may great britain feel herself justified in retaliating on this most partial and unjust measure which we are about to adopt against her, by confiscating the millions of our property now within her power. and if we have been silent under the former, and have apparently acquiesced in it, what shall we, what can we, say, in case the latter event should take place? but, sir, the apologists of france tell us that his majesty, the emperor, has pledged his royal word that the decrees shall cease to operate as it respects us; and that, though he has thought proper to postpone the measure from the first of november to the second of february, he has only done so in order to ascertain whether we mean to go on to fulfil our engagements with good faith; that he is only holding our property seized since the first of november as security for our performance; and that, when he finds we are determined to resist the illegal orders and blockades of great britain, he will give up the property of our citizens. how insulting, this, to american feelings, to be told that a total violation of faith on the part of this man is excusable, because he chooses to suspect our faith. but, sir, do these people really believe the property of our citizens will be given up after the second of february, and in consequence of the measure we are now about to adopt? when did that voracious monster ever disgorge the plunder he had once received into his insatiable maw? of the millions upon millions of which he has, at different times, and under various pretexts, plundered our unsuspecting citizens, where is the instance of a single dollar returning to its rightful owner? no, sir, let it once get within his iron grasp, and it is lost forever. the present measure is evidently intended as a propitiatory sacrifice to conciliate napoleon--to induce him to become our friend, and to cease to rob and plunder our defenceless citizens. is it calculated to produce this effect? short-sighted as we confessedly are, sir, i should suppose we can scarcely be such silly politicians as to expect such an effect from such a measure. a brief view of the course which has been pursued, and is pursuing, by the emperor of france, must produce a conviction in every unprejudiced mind, that he is not to be diverted from his purpose by a toy like this. sir, it must be evident to every mind that his ambition soars to universal conquest. to this point all his measures tend--every other consideration is made to yield. for the accomplishment of this object, almost every nation on the continent of europe has been insulted, plundered, and subdued. to this end the external commerce of the continent has been annihilated, the agricultural and manufacturing interests have been depressed, and millions of his own subjects, and those of nations under his influence, impoverished and ruined. but there is one impediment to his gigantic project. britain, proud, haughty britain, stands in the way, and puts a stop to his career. isolated, as she happily is, and the proud mistress of the ocean, she presents an impenetrable barrier to his ambitious views. but britain must be humbled, she must be subdued. her power on the ocean must be destroyed; and, to effect this, she must be attacked through her commerce and manufactures. for this purpose, what he is pleased to call his great continental system has been devised and rigorously enforced. finding that all his restrictions and confiscations, aided by all his civil and military power, could not prevent the introduction of british merchandise upon the continent, he has resorted to a plan which promises to be more effectual. regardless of the rights and interests of his subjects, he does not inquire whose the property may be; if it is of british origin it is committed to the flames. such is his plan; such are the efforts and sacrifices he is making to insure its accomplishment. and yet, mr. chairman, it would seem as if we had the consummate folly to believe that we can appease this merciless tyrant by so weak, so silly, so futile a measure as this one now under consideration. we seem to have the madness to believe that this man, after the immense sacrifices he has made for the attainment of his object, would yield that object in our favor, and in order to be upon friendly terms with us would forego all other considerations. and from what premises is such a conclusion drawn? is it from his past treatment of us? let us, mr. chairman, take a brief review of his past conduct towards us, in order to see what we may expect in future. it is some years since he ordered our ships and cargoes to be burned upon the ocean, and many were burnt. he has, at various terms, and under different pretexts, seized and confiscated the property of our citizens on the ocean, and in his ports, and in the ports of his vassals. no longer ago than last spring, he told us that we were without just political views, without honor, without energy; and that, after refusing to fight for honor, we might find it necessary to fight for interest. this insulting declaration, which was dated on the th of february, was followed on the d of march by the rambouillet decree, which confiscated all american vessels and cargoes which had arrived from the th of may, , or should thereafter arrive in any port of france, her allies, or those occupied by her arms. thus was from twenty to thirty millions of the property of our unsuspecting and confiding citizens, who had sought the rights of hospitality in his ports, sacrificed without a pretext, or with a pretext which added to the injury. finding, after this gross violation of every principle which ought to govern honest and honorable nations, that our merchants, taught by sad experience that there was no safety within the range of his power, would venture there no more, he found it necessary to throw out another lure to entice the unwary within his reach. his tone is now suddenly changed. instead of the haughty and insulting tyrant, he assumes the shape of a fond and doating lover. "his majesty loves the americans. their prosperity and their commerce are within the scope of his policy. he is pleased in aggrandizing the united states." yes, truly, his majesty loves the americans! if not for our persons, yet for our property, he has given the most ample and convincing proofs of his love. these sugared words, displaying so much of the milk of human kindness, seem to have perfectly reconciled us to his loving majesty, and to have quite obliterated the remembrance of his harsh and unkind language so lately used towards us. and not only so, but it seems to have fully compensated us for all his robberies; and we forbear to touch that string, lest he might be somewhat ruffled, and once more induced to vent his anger on us. but lest his bare professions of love should not have the desired effect of inducing the americans once more to place their property within his power, he directed his minister to declare that the berlin and milan decrees were revoked, and should cease to have effect after the first of november. our administration, confiding in his assurances, in the face of all his previous conduct, published the proclamation of the second of november, and thereby assisted in deceiving our too credulous citizens. but few, however, ventured to place trust in him; and those who did, have met with a fate which every man of reflection ought to have anticipated. if, sir, such has been the course of that man's conduct towards us, (and that it has, i appeal to all the documents which have been laid before us,) i would ask why are we called upon to pass the section now under consideration? to me, it is matter of mystery and astonishment. monday, february . _commercial intercourse._ the house resumed the consideration of the unfinished business of saturday last, to wit, the bill supplementary to the act entitled "an act concerning the commercial intercourse between the united states and great britain and france, and their dependencies, and for other purposes," and the amendments reported thereto by the committee of the whole house. the said amendments were read at the clerk's table. mr. quincy.--mr. speaker: the amendments contained in the sections under consideration, contemplate the continuance and enforcement of the non-intercourse law. this proposition presents a great, an elevated and essential topic of discussion, due to the occasion, and claimed by this people, which comprehends within the sphere and analogies of just argument, the chief of those questions, the decision of which, at this day, involves the peace, the happiness, and honor of this nation. whatever has a tendency to show, that if the system of non-intercourse exist, it ought not to be continued; or, that if it do not exist, it ought not to be revived; whatever has a tendency to prove, that we are under no obligation to persist in it, nor under any obligation to abandon it, is now within the fair range of debate. after long delay, and much coy demeanor, the administration of this country have condescended to develop their policy. though they have not spoken to our mortal ears, with their fleshly tongues, yet they have whispered their purposes through the constituted organs of this house. and these are the features of the policy which they recommend: it is proposed to grant particular and individual relief from anticipated oppressions of the commercial restrictive system. it is proposed to perpetuate that system, indefinitely, and leave our citizens, still longer, subject to its embarrassments, its uncertainty and its terrors. the chairman of our committee of foreign relations, (mr. eppes,) at the time he introduced these amendments to the house, exhibited the true character of this policy, when he told us that it was "modelled upon the principle not to turn over to the judiciary the decision of the existence of the non-intercourse law, but to make it the subject of legislative declaration." in other words, it is found that the majority of this house have too much policy to deny, and too much principle to assert, that the fact, on which, and on which alone, the president of the united states was authorized to issue his proclamation of the second of november last, has occurred. a scheme has, therefore, been devised, by which, without any embarrassment on this intricate point, the continuance and enforcement of non-intercourse may be insured, and toils, acceptable to france, woven by the hands of our own administration, spread over almost the only remaining avenue of our commercial hope. the proposition, contained in these amendments, has relation to the most momentous and most elevated of our legislative obligations. we are not, now, about to discuss the policy by which a princely pirate may be persuaded to relinquish his plunder; nor yet the expectation entertained of relaxation, in her belligerent system, of a haughty, and perhaps jealous rival; nor yet the faith which we owe to a treacherous tyrant; nor yet the fond, but frail hopes of favors from a british regency, melting into our arms, in the honeymoon of power. the obligations which claim our observance are of a nature much more tender and imperious; the obligations which, as representatives, we owe to our constituents; the allegiance by which we are bound to the american people; the obedience which is due to that solemn faith, by which we are pledged to protect their peace, their prosperity, and their honor. all these high considerations are materially connected with this policy. it is not my intention, mr. speaker, to dilate on the general nature and effects of this commercial restrictive system. it is no longer a matter of speculation. we have no need to resort for illustration of its nature to the twilight lustre of history, nor yet to the vibrating brightness of human intellect. we have experience of its effects. they are above, around, and beneath us. they paralyze the enterprise of your cities. they sicken the industry of your fields. they deprive the laborer and the mechanic of his employment. they subtract from the husbandman and planter the just reward for that product which he has moistened with the sweat of his brow. they crush individuals, in the ruins of their most flattering hopes, and shake the deep-rooted fabric of general prosperity. it will, however, be necessary to say a word on the general nature of this system. not so much for the purpose of elucidating, as to clear the way, and give distinctness to the course of my argument. it will also be useful to deprive the advocates of this system of those colors and popular lures, to which they resort, on a subject in no way connected with the objects with which they associate it. my argument proceeds upon the assumption of the irrelevancy of four topics, usually adduced in support of the system contained in the law of may, , and of march, ; commonly called the non-intercourse system. i take for granted that it is not advantageous; in other words, that it is injurious; that it is not fiscal in its nature; nor protective of manufactures; nor competent to coerce either belligerent. that it is injurious is certain, not only because it is deprecated by that part of the community which it directly affects, but because no man advocates it as a permanent system, and every one declares his desire to be rid of it. fiscal it cannot be, because it prohibits commerce, and consequently revenue; and by the high price and great demand for foreign articles, which it produces, encourages smuggling. protective of manufactures it cannot be, because it is indiscriminate in its provisions and uncertain in its duration; and this uncertainty depends, not on our legislative discretion, but on the caprice of foreign powers; our enemies, or rivals. no commercial system, which is indiscriminate in its restrictions, can be generally protective to manufactures. it may give a forced vivacity to a few particular manufactures. but in all countries, some, and in this almost all manufactures, depend, either for instruments or subjects, on foreign supply. but, if this were not the case, a system, whose continuance depended upon the will or the ever variant policy of foreign nations, can never offer such an inducement to the capitalist, as will encourage him to make extensive investments, in establishments resting on such precarious foundations. as to the incompetency of this system to coerce either belligerent, i take that for granted, because no man, as far as i recollect, ever pretended it; at least no man ever did show, by any analysis, or detailed examination of its relative effects on us, and either belligerent, that it would necessarily coerce either out of that policy which it was proposed to counteract. embargo had its friends. there were those who had a confidence in its success. but who was ever the friend of non-intercourse? who ever pretended to believe in its efficacy? the embargo had a known origin, and the features of its character were distinct. but "where, and what was this execrable shape--if shape it may be called, which shape has none?" we all know that the non-intercourse was not the product of any prospective intelligence. it was the result of the casual concurrence of chaotic opinions. it was agreed upon, because the majority could agree upon nothing else. they who introduced it, abjured it. they who advocated it, did not wish, and scarcely knew its use. and now that it is said to be extended over us, no man, in this nation, who values his reputation, will take his bible oath that it is in effectual and legal operation. there is an old riddle on a coffin, which i presume we all learned when we were boys, that is as perfect a representation of the origin, progress, and present state of this thing, called non-intercourse, as is possible to be conceived. "there was a man bespoke a thing, which when the maker home did bring, that same maker did refuse it; the man that spoke for it did not use it, and he who had it did not know whether he had it;--yea, or no." true it is, that if this non-intercourse shall ever be, in reality, extended over us, the similitude will fail, in a material point. the poor tenant of the coffin is ignorant of his state. but the poor people of the united states will be, literally, buried alive in non-intercourse; and realize the grave closing on themselves and their hopes with a full and cruel consciousness of all the horrors of their condition. for these reasons, i put all such common-place topics out of the field of debate. this, then, is the state of my argument; that as this non-intercourse system is not fiscal, nor protective of manufactures, nor competent to coerce, and is injurious, it ought to be abandoned, unless we are bound to persist in it, by imperious obligations. my object will be to show that no such obligations exist; that the present is a favorable opportunity, not to be suffered to escape, totally to relinquish it; that it is time to manage our own commercial concerns, according to our own interest; and no longer put them into the keeping of those who hate or those who envy their prosperity; that we are the constituted shepherds, and ought no more to transfer our custody to the wolves. it is agreed, on all sides, that it is desirable to abandon this commercial restrictive system. but the advocates of the measure now proposed, say that we cannot abandon it, because our faith is plighted. yes, sir, our faith is plighted; and that, too, to that scrupulous gentleman, napoleon; a gentleman so distinguished for his own regard of faith; for his kindness and mercies towards us; for angelic whiteness of moral character; for overweening affection for the american people and their prosperity. truly, sir, it is not to be questioned, but that our faith should be a perfect work towards this paragon of purity. on account of our faith, plighted to him, it is proposed to continue this non-intercourse. but, mr. speaker, we may be allowed, i presume, to inquire whether any such faith be plighted. i trust we are yet freemen. we are not yet so far sunk in servility, that we are forbidden to examine into the grounds of our national obligations. under a belief that this is permitted, i shall enter upon the task, and inquire whence they arise and what is their nature. whence they arise is agreed. our obligations result, if any exist, under the act of may the first, , called "an act concerning the commercial intercourse between the united states and great britain and france, and their dependencies, and for other purposes." it remains, therefore, to inquire into the character of this act, and the obligations arising under its provisions. before, however, i proceed, i would premise, that whether i shall obtain, i am doubtful, but i am sure that the nature of my argument deserves, the favor and prepossession for its success, of every member in the house. my object is to show, that the obligation which we owe to the people of the united states, is a free and unrestricted commerce. the object of those who advocate these measures is to show that the obligation we owe to napoleon bonaparte, is a commerce restricted and enslaved. now, as much as our allegiance is due more to the people of the united states than it is to napoleon bonaparte, just so much ought my argument to be received by the american congress, with more favor and prepossession than the argument of those who advocate these measures. it is my intention to make my course of reasoning as precise and distinct as possible. because i invite scrutiny, i contend for my country according to my conscientious conceptions of its best interests. if there be fallacy, detect it. my invitation is given to generous disputants. as to your stump orators, who utter low invective and mistake it for wit, and gross personality, and pass it off for argument, i descend not to their level; nor recognize their power to injure; nor even to offend. whatever obligations are incumbent upon this nation, in consequence of the act of the first of may, , they result from the following section: "_and be it further enacted_, that in case either great britain or france shall, before the third day of march next, so revoke or modify her edicts as that they shall cease to violate the neutral commerce of the united states, which fact the president of the united states shall declare by proclamation, and if the other nation shall not, within three months thereafter, so revoke or modify her edicts, in like manner, then the third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, and eighteenth sections of the act, entitled 'an act to interdict the commercial intercourse between the united states and great britain and france, and their dependencies, and for other purposes,' shall, from and after the expiration of three months from the date of the proclamation aforesaid, be revived and have full force and effect, so far as relates to the dominions, colonies, and dependencies of the nation thus refusing or neglecting to revoke or modify her edicts in manner aforesaid. and the restrictions imposed by this act shall, from the date of such proclamation, cease and be discontinued in relation to the nation revoking or modifying her decrees, in the manner aforesaid." divested of technical expression, this is the abstract form of this section. it provides that a new commercial condition shall result, on the occurrence of a specified fact; which fact the president shall declare. on this state of the subject i observe that nothing in the act indicates whether the object of the united states, in providing for this eventual commercial condition, was its own benefit, convenience, or pleasure; or whether it was in the nature of a proffer to foreign nations. it will, however, be agreed on all sides, that the object was either the one or the other. if the object were our own benefit, convenience, or pleasure, it will not be pretended that we are under any obligation to continue the system. for that which was adopted, solely for either of these ends, may, whenever our views concerning them vary, be abandoned; it being the concern of no other. but it is said that the act was, in truth, a proffer to the two belligerents, of commerce to the obsequious nation, prohibition of commerce to the contumacious nation. if this were the case, i shall agree, for the sake of argument, that it ought to be fulfilled to the full extent of the terms. but inasmuch as there is, in the terms of the act, no indication of such a proffer, it follows that its nature must arise from the circumstances of the case; and that the whole of the obligation, whatever it is, grows out of an honorable understanding, and nothing else. as such, i admit, it should be honorably fulfilled. the nature of this proffer is that of a proposition upon terms. now what i say is, and it is the foundation of my argument, that whoever claims an honorable compliance with such a proposition, must be able to show, on his part, an honorable acceptance and fulfilment of the terms. the terms our act proposed were--an act to be done; an effect to be produced. the act to be done was, the revocation or modification of the edicts. the effect to be produced was that this revocation or modification should be such as that these edicts should "cease to violate our neutral commerce." now the questions which result are, has the act been done? if done, has it been so done as to amount to an honorable fulfilment or acceptance of our terms? the examination of these two points will explain the real situation of these united states, and the actual state of their obligations. in considering the question whether the fact of revocation, or modification, has occurred, it is unfortunate that it does involve, at least in popular estimation, the propriety of the proclamation, issued on the second of november last, by the president of the united states. i regret, as much as any one, that such is the state of things, that the question, whether a foreign despot has done a particular act, seems necessarily to be connected with the question concerning the prudence and perspicacity with which our own chief magistrate has done another act. i say in popular estimation these subjects seem so connected. i do not think that, in the estimation of wise and reflecting men, they are necessarily thus connected. for the fact might not have occurred precisely in the form contemplated by the act of may, , and yet the president of the united states, in issuing his proclamation, might be either justifiable or excusable. it might be justifiable. a power intrusted to a politician to be used on the occurrence of a particular event, for the purpose of obtaining a particular end, he may sometimes be justifiable in using, in a case which may not be precisely that originally contemplated. it may be effectually, though not formally, the same. it may be equally efficient in attaining the end. in such a case a politician never will, and perhaps ought not to hesitate at taking the responsibility, which arises from doing the act in a case not coming within the verbal scope of his authority. thus, in the present instance. the president of the united states might have deemed the terms, in the letter of the duke of cadore, such as gave a reasonable expectation of acceptance on the part of great britain. he has taken the responsibility. he has been deceived. neither great britain accepts the terms, nor france performs her engagements. the proclamation might thus have been wise, though unfortunate in its result. and as to excuse, will it be said that there is nothing of the sort in this case? why, sir, our administration saw the great napoleon, according to his own confession, over head and ears in love with the american people. at such a sight as this, was it to be expected of flesh and blood that they should hesitate to plunge into a sea of bliss, and indulge in joy with such an amorous cyprian? but, whether the fact has occurred, on which alone this proclamation could have legally issued, is a material inquiry and cannot be evaded, let it reach where or whom it will. for with this is connected the essential condition of this country; on this depends the multiplied rights of our fellow-citizens, whose property has been or may be seized or confiscated under this law: and hence result our obligations, if any, as is pretended, exist. it is important here to observe, that, according to the terms of the act of may , , the law of march , , revives on the occurrence of the fact required, and not on the proclamation issued. if the fact had not occurred, the proclamation is a dead letter, and no subsequent performance of the required fact, by either belligerent, can retroact so as to give validity to the previous proclamation. the course required by the act of the st of may, , unquestionably is, that the fact required to be done should be precedent, in point of time, to the right accruing to issue the proclamation; and of consequence that, by no construction, can any subsequent performance of the fact required operate backward to support a proclamation issued previous to the occurrence of that fact? whenever this fact is really done, a new proclamation is required to comply with the provisions of the act, and to give efficacy to them. i am the more particular in referring to this necessary construction, resulting from the terms of the act of the first of may last, because it is very obvious that a different opinion did until very lately, and probably does now, prevail on this floor. we all recollect what a state of depression the conduct of bonaparte in seizing our vessels, subsequent to the first of november, produced, as soon as it was known in this house, and what a sudden joy was lighted up in it, when the news of the arrival of a french minister was communicated. great hopes were entertained and expressed, that he would bring some formal revocation of his edicts, or disavowal of the seizures which might retroact and support the proclamation. it was confidently expected that some explanation, at least of these outrages, would be contained in his portmanteau; that under his powder-puff, or in his snuff box, some dust would be found to throw into the eyes of the american people, which might so far blind the sense, as to induce them to acquiesce in the enforcement of the non-intercourse, without any very scrupulous scrutiny into the performance of the conditions by bonaparte. but, alas! sir, the minister is as parsimonious as his master is voracious. he has not condescended to extend one particle, not one pinch of comfort to the administration. from anything in the messages of our president, it would not be so much as known that such a blessed vision, as was this new envoy, had saluted his eyes. his communications preserve an ominous silence on the topic. administration, after all their hopes, have been compelled to resort to the old specific, and have caused to be tipped upon our tables a cart-load of sand, grit, and sawdust, from our metaphysical mechanic, who seesaws at st. james', as they pull the wire here in washington. yes, sir, a letter written on the tenth day of december last, by our minister in london, is seriously introduced to prove, by abstract reasoning, that the berlin and milan decrees had ceased to exist on the first of the preceding november, of whose existence, as late as the th of last december, we have, as far as the nature of things permit, ocular, auricular, and tangible demonstration. and the people of this country are invited to believe the logic of mr. pinkney in the face of the fact of a continued seizure of all the vessels which came within the grasp of the french custom-house, from the first of november, down to the date of our last accounts; and, in defiance of the declaration of our chargé d'affaires, made on the th of december, that "it will not be pretended that the decrees have in fact been revoked," and in utter discredit of the allegation of the duke of massa, made on the th of the same month, which, in effect, declares the berlin and milan decrees exist, by declaring "that they shall remain suspended." after such evidence as this, the question whether a revocation or modification of the edicts of france has so occurred "as that they cease to violate the neutral commerce of the united states," does no longer depend upon the subtleties of syllogistic skill, nor is to be disproved by any power of logical illation. it is an affair of sense and feeling. and our citizens, whose property has been, since the first of november, uniformly seized, and of which they are avowedly to be deprived three months, and which is then only to be returned to them on the condition of good behavior, may as soon be made to believe, by the teaching of philosophy, that their rights are not violated, as a wretch, writhing under the lash of the executioner, might be made by a course of reasoning to believe, that the natural state of his flesh was not violated, and that his shoulders, out of which blood was flowing at every stroke, were in the quiet enjoyment of cuticular ease. whether the revocation expressed in the letter of the duke of cadore, was absolute or conditional, or whether the conditions were precedent or subsequent, in the present state of our evidence, it seems scarcely important to inquire. yet the construction of that celebrated passage, in his letter of the th of august, has been, as i have ever seen, given so much in the manner of lawyers, and so little in that of statesmen, that it deserves a short elucidation; how much the words "it being understood that," in their particular position are worth; and whether they have the effect of a condition precedent, or of a condition subsequent. a statesman will look at the terms contained in that letter in a different aspect, not for the purpose of ascertaining how much a court of law might be able to make of them, as to discern in what position of language the writer intended to intrench himself, and to penetrate his real policy, notwithstanding the veil in which he chose to envelope it. he will consider the letter in connection with the general course of french policy, and the particular circumstances which produced it. by these lights, it is scarcely possible to mistake the character and true construction of these expressions. upon recurring to the berlin and milan decrees, it will be found that they contain a solemn pledge, that "they shall continue to be rigorously in force, as long as that (the english) government does not return to the principle of the law of nations." their determination to support this pledge, the french government has uniformly and undeviatingly declared. they have told us constantly that they require a previous revocation on the part of great britain, as the condition of their rescinding those edicts. the question who should first revoke their edicts had come to be, notoriously, a sort of point of honor between the two belligerents. perfectly acquainted with this state of things, we have been perpetually negotiating between the one and the other, and contending with each that it was his duty previously to revoke. at length the french government, either tired with our solicitations, or more probably, seeing their own advantage in our anxiety to get rid of these decrees, which yet, as an essential part of its continental system of total commercial exclusion it never intended to abandon, devised this scheme of policy, which has been the source of so much contest, and has puzzled all the metaphysicians in england and the united states. cadore is directed to say to mr. armstrong: "in this new state of things i am authorized to declare to you, sir, that the decrees of berlin and milan are revoked, and that after the first of november they will cease to have effect; it being understood that, in consequence of this declaration, the english shall revoke their orders in council, and renounce the new principles of blockade which they have wished to establish; or that the united states, conformably to the act you have just communicated, shall cause their rights to be respected by the english." in this curious gallimaufry of time present and time future, of doing and refraining to do, of declaration and understanding, of english duties and american duties, it is easy to trace the design, and see its adaptation to the past and present policy of the french emperor. the time present was used, because the act of the united states required that previously to the proclamation the edicts "shall be" revoked. and this is the mighty mystery of time present being used, in expressing an act intended to be done in time future. for if, as the order of time, and the state of intention indicated, time future had been used, and the letter of cadore had said the decrees shall be revoked on the first of november next, then the proclamation could not be issued, because the president would be obliged to wait to have evidence that the act had been effectually done. now as the french emperor never intended that it should be effectuated, and yet meant to have all the advantage of an effectual deed without performing it, this notable scheme was invented. and, by french finesse, and american acquiescence, a thing is considered as effectually done, if the declaration that it is done be made in language of time present, notwithstanding the time of performance is in the same breath declared to be in time future. having thus secured the concurrence of the american administration, the next part of the scheme was so to arrange the expression that either the british government should not accede, or if it did accede, that it should secure to france the point of honor--a previous revocation by the british; and if they did not accede, that there should be a color for seizures and sequestrations, and thus still further to bind the americans over to their good behavior. all this is attained by this well-devised expression "it being understood that, in consequence of this declaration, the english shall revoke." now, great britain either would accede to the terms, or she would not. if she did, and did it as the terms required, in consequence of this declaration, then it must be done previous to the first of november, and then the point of honor was saved to france; so that thus france, by a revocation verbally present, effectually future, would attain an effectual previous revocation from the english. but if, as france expected great britain would not trust in such paper security, and therefore not revoke, previously to the first of november, then an apology might be found for france, to justify her in refusing to effectuate that present, future, and absolute, conditional revocation. and if ever the duke of cadore shall condescend, which it is probable he never will, to reason with our government on the subject, he may tell them that they knew that the french emperor had issued those decrees, upon the pledge that they were to continue until the british abandoned their maritime principles; that he told us, over, and over, and over again, that previous revocation by the british was absolutely required; that for the purpose of putting to trial the sincerity of the british, he had indeed declared that the french decrees "are revoked," on the first day of november ensuing; but then it was on the expressed condition that _in consequence of that declaration_, not of the revocation, but of _that declaration_, the british were to revoke, and, if they did not, the "understanding" was not realized; and his rights of enforcing his system remained to him. and i confess i do not well see what answer can be made to such an argument. let us examine the case in common life. you, mr. speaker, have two separate tracts of land, each lying behind the farms of a and b, so that you cannot get to one of the tracts, without going over the farm of a, nor to the other tract without going over the farm of b. for some cause or other, both a and b have a mutual interest that you should enjoy the right of passage to your tract, over the farm of each respectively. a and b get into quarrels and wish to involve you in the dispute. you keep aloof, but are perpetually negotiating with each for your old right of passage-way, and telling each that it is owing to him that the other prohibits your enjoyment of it. at last a says "come. we will put this b to trial. i on this fifth day of august, declare my prohibitions of passage-way are revoked, and, after the first day of november, my prohibitions shall cease to have effect; but, it is understood that b, _in consequence of this declaration_, shall also revoke his prohibition of passage-way." if b refuses, does a, under the circumstances of such a declaration, violate any obligation, should he refuse to permit the passage? might not a urge with great color and force of argument, that this arrangement was the effect of your solicitation and assurance that b would be tempted by such a proffer, and that the revocation of b was required, by the terms, to be the consequence of a's declaration, for the very purpose of indicating that it must be anterior to the fact of a's effectual revocation? but let this be as it will; suppose that you, on the first of november, in consequence of a's assurance, had sent your servants and teams to bring home your products, and a should seize your oxen, and teams and products, and drive your servants, after having stripped them, from his farm, and should tell you, that he should keep this, and all other property of yours, on which he can lay his hands, for three months, and then he should restore it to you, or not, as he saw fit, according to his opinion of your good behavior. i ask, if, in any sense, you could truly say that on the first day of november the prohibitions or edicts of a were so revoked, that they ceased to violate your liberty of passage? sir, when viewed in relation to common life, the idea is so absurd, that it would be absolutely abusive to ask the question. i refer the decision of so simple a case to the sound sense of the american people, and not to that of "scurvy politicians, who seem to see the things they do not." in a condensed form my argument is this. from a revocation merely verbal, no obligations result. by the terms of our act the revocation must be effectual, "so as the edict shall cease to violate our rights." now the simple question is, whether a uniform seizure, since the first of november, under those edicts (for none other are pretended) of all their property, and holding it for three months, to see how they will behave, be or be not a violation of the rights of the american people? in relation to the revival by a formal declaration of the non-intercourse system, as is proposed in one of these sections, i offer this argument: either the fact, on which the president's proclamation could alone have been issued, has occurred or it has not. if it has occurred, then the law of march, , is revived, and this provision, by a declarative law, is unnecessary. if it have not occurred, then there is no obligation to revive it, for alone on the occurrence of the specified fact does our obligation depend. in such case the revival by declaration is a mere gratuity to napoleon. this is in fact the true character of the law. as to the provisions for relief of our merchants against anticipated seizure, i hold them scarcely deserving consideration. heaven be praised we have independent tribunals and intelligent juries. our judges are not corrupt and our yeomanry will not be swayed in their decisions, by the hope of presidential favors, nor be guided by party influence. the harpies of your custom-house dare as soon eat off their own claws, as thrust them, in the present state of the law of march, , into the fatness of their fellow-citizens. the timorous and light-shunning herd of spies and informers have too much instinct to pounce on such a prey. but, in order to cause any obligation to result under the law of may , , it is necessary, not only that the fact required be done, and the effect required produced; but also the terms of that act must be accepted. the proffer we made, if such be the character of that act, was only to revive the non-intercourse law against the contumacious belligerent, after three months had expired from the date of the proclamation. now it is remarkable, that, so far from accepting the terms of the proposition contained in our act, as the extent of our obligations, bonaparte expressly tells us that they mean something else; and something, too, that no man in this house will dare to aver they really intend. it is also remarkable that the terms of this celebrated letter from the duke of cadore, of the fifth of august, which have been represented as a relaxation in the rigor of the french emperor's policy, are, in fact, something worse than the original terms of the milan decree, and that, instead of having obtained a boon from a friend in this boasted letter, our administration have only caught a gripe from a tartar. by the terms of the milan decree, it was to "cease with respect to all nations who compelled the english to respect their flag." by the terms of the letter of cadore, it was to cease on condition that the united states "cause their rights to be respected." now, as much as an obligation, of an indefinite extent, is worse than a definite obligation, just so much worse are the terms of the letter of cadore, than the original terms of the milan decree. mr. speaker, let us not be deceived concerning the policy of the french emperor. it is stern, unrelenting, and unrelaxing. so far from any deviation from his original system being indicated in this letter of the duke of cadore, a strict adherence to it is formally and carefully expressed. ever since the commencement of "his continental system," as it is called, the policy of napoleon has uniformly been to oblige the united states to effectual co-operation in that system. as early as the th of october, , his minister, champagny, wrote to general armstrong, that the interests of all maritime powers were common, to unite in support of their rights against england. after this followed the embargo, which co-operated effectually at the very critical moment, in his great plan of continental commercial restriction. on the th of the ensuing november, he resorts to the same language--"in violating the rights of all nations england has united them all by a common interest, and it is for them to have recourse to force against her." he then proceeds to invite the united states to take "with the whole continent the part of guaranteeing itself from her injustice, and in forcing her to a peace." on the th of january, , he is somewhat more pointed and positive, as to our efficient concurrence in his plan of policy. for his minister, champagny, then tells us, that "his majesty has no doubt of a declaration of war against england by the united states," and he then proceeds to take the trouble of declaring war out of our hands, and volunteers his services, gratuitously, to declare it, in our name and behalf. "war exists then, in fact, between england and the united states; and his majesty considers it as declared from the day on which england published her decrees." and in order to make assurance doubly sure, he sequesters our vessels in his ports, "until a decision may be had on the dispositions to be expressed by the united states," on his proposition of considering themselves "associated in the cause of all the powers," against england. now in all this there is no deception, and can be no mistake, as to the purpose of his policy. he tells us, as plain as language can speak, that "by causing our rights to be respected," he means war, on his side, against great britain. that "our interests are common"--that he considers us already "associates in the war," and that he sequesters our property by way of security for our dispositions. this is his old policy. i pray some gentlemen on the other side of the house to point out in what it differs from the new. the letter of cadore on the fifth of august tells us, it is expected that we "cause our rights to be respected, in conformity to our act," and the same letter also tells us what he understands to be the meaning of our act. "in short, congress engages to oppose itself to that one of the belligerent powers which shall refuse to acknowledge the rights of neutrals." in other words, "by causing our rights to be respected," he means war on his side against great britain. in perfect conformity with this uniform, undeviating policy, his minister, turreau, tells our government, in his letter of the th of november last, that "the modifications to be given to the present absolute exclusion of our products will not depend upon the chance of events, but will be the result of measures, firm and pursued with perseverance, which the two governments will continue to adopt to withdraw from the monopoly and from the vexations of the common enemy a commerce loyal and necessary to france as well as the united states." and to the end, that no one feature of his policy should be changed, or even appear to be relaxed, his excellency the duke of massa, and his excellency the duke of gaete, in their respective letters of the th of december, declare, that the property taken, shall be "only sequestered until the united states have fulfilled their engagements to cause their rights to be respected." now, mr. speaker, is there a man in this house bold enough to maintain, or with capacity enough to point out, any material variation between the policy of france to this country, subsequent to the cadore letter, of the th of august, and its policy anterior to that period? the character of the policy is one and indivisible. bonaparte had not yielded one inch to our administration. now, as he neither performed the act required by the law of may, ; nor produced the effect; nor accepted the terms it proposed; whence arise our obligations? how is our faith plighted? in what way are we bound again to launch our country into this dark sea of restriction; surrounded on all sides with perils and penalties? the true nature of this cadore policy is alone to be discovered in the character of his master. napoleon is a universal genius. "he can exchange shapes with proteus to advantage." he hesitates at no means and commands every skill. he toys with the weak--he tampers with the mean--he browbeats the haughty--with the cunning he is a serpent. for the courageous he has teeth and talons. for the cowering he has hoofs. he found our administration a pen and ink gentry--parchment politicians; and he has laid, for these ephemeral essences, a paper fly-trap, dipped in french honey. hercules, finding that he could not reach our administration with his club, and that they were out of their wits at the sight of his lion's skin, has condescended to meet them in petticoats, and conquer them, spinning at their own distaff. as to those who, after the evidence now in our hands, deny that the decrees exist, i can no more reason with them than with those who should deny the sun to be in the firmament, at noon-day. the decrees revoked! the formal statute act of a despot revoked by the breath of his servile minister; uttered on conditions not performed by great britain, and claiming terms not intended to be performed by us! the fatness of our commerce secure, when every wind of heaven is burdened with the sighs of our suffering seamen, and the coast of the whole continent heaped with the plunder of our merchants! the den of the tiger safe! yet the tracks of those who enter it are innumerable, and not a trace is to be seen of a returning footstep! the den of the tiger safe! while the cry of the mangled victims are heard through the adamantine walls of his cave; cries, which despair and anguish utter, and which despotism itself cannot stifle! no, mr. speaker. let us speak the truth. the act now proposed is required by no obligation. it is wholly gratuitous. call it then by its proper name. the first fruit of french alliance. a token, a transatlantic submission. any thing except an act of an american congress, the representatives of freemen. the present is the most favorable moment for the abandonment of these restrictions, unless a settled co-operation with the french continental system be determined. we have tendered the provisions of this act to both belligerents. both have accepted--both, as principals, or by their agents, have deceived us. we talk of the edicts of george the third and napoleon. yet those of the president of the united states, under your law, are far more detestable to your merchants. their edicts plundered the rich. his make those who are poor still poorer. their decrees attack the extremities. his proclamation fixes upon the vitals, and checks the action of the seat of commercial life. i know that great hopes are entertained of relief from the proposed law, by the prospect of a british regency. between a mad monarch and a simpering successor, it is expected the whole system of that nation will be abandoned. let gentlemen beware, and not calculate too certainly on the fulfilment, by men in power, of professions made out of it. the majority need not go out of our own country, nor beyond their own practice, to be convinced how easily, in such cases, proud promises may eventuate in meagre performance. the whole bearing of my argument is to this point. it is time to take our own rights into our own keeping. it is time, if we will not protect, to refrain from hampering, by our own acts, the commerce of our country. put your merchants no longer under the guardianship and caprice of foreign powers. punish not, at the instigation of foreigners, your own citizens for following their righteous calling. we owe nothing to france. we owe nothing to great britain. we owe every thing to the american people. let us show ourselves really independent; and look to a grateful, a powerful, and then united people, for support against every aggressor. mr. mumford.--the gentleman (mr. quincy) from massachusetts has given us a long talk, that amused the house very much with tropes and figures, and i hope has convinced himself that he is right. i am no advocate of either belligerent, i have not much confidence in the declarations of foreign governments. i did, however, put some confidence in the erskine arrangement, but i was deceived; it met my approbation, because i was among those who were determined to settle our disputes with great britain in our own way, as an independent nation. and i will now ask the gentleman from massachusetts whether, if the chancellor of the exchequer, or any other higher authority in great britain, should write a letter to sir william scott, and a circular letter to the collector of liverpool, informing them that the orders in council did not apply to american vessels from and after the st november, he would not deem those letters to be evidence of the fact? if so, why not give the same credence to the letters of the duke of massa and the duc de gaete? i wish to preserve the faith of the nation. we have been plundered by both belligerents, and have as little confidence in the one as in the other; but without some reliance on the word of constituted authorities there is an end to all negotiations. the gentleman says that we are about to shut up "the only avenue to our commercial hope." these are his own words. let us now examine this avenue to our commercial hope. i will in the first place ask the indulgence of the house while i read and state some facts from a letter i have just received from liverpool, dated january , of the present year, from one of the most respectable houses there, which states that the importation of cotton from the united states was , bales in ; that there were then , bales on hand; tobacco imported in the same period, , hogsheads; and notwithstanding the consumption, the quantity imported kept the market supplied constantly with about the same number of hogsheads throughout the year . potashes imported , barrels, on hand , barrels: rice , imported, and there remain on hand very large supplies. those are the principal articles of the produce of our soil unsold on th january, , in the port of liverpool alone, besides the quantities in the other ports of great britain; and the same letter observes: "this supply checks any attempt at speculation, and without an export vent is procured, the stock on hand must remain unsalable; if the belligerents return to a sense of justice, the continental markets being in that case reopened, will require large supplies, and cause our market to rise." the prices of upland cotton are stated at d. sterling per lb.; tobacco, very prime, d. to d., middling quality, great quantity on hand, fit only for continental market, at ½ a d.; pot-ashes £ to £ per ton--rice to per cwt. sir, there is no american merchant who can pursue that commerce, attended with the enormous charges and duties imposed on those articles without inevitable ruin; and i call to the recollection of gentlemen the numerous failures in consequence of bills of exchange returned under protest, which had been predicated on shipments to british ports; and yet the gentleman from massachusetts tells us this is "the only avenue to our commercial hope." send your vessels to the brazils, you meet them there intriguing against your commerce; to buenos ayres, you find them there; to cayenne, there also; to terra firma, you there find them in conjunction with miranda intriguing and counteracting your commerce; to barbadoes, surinam, demerara, trinidad, martinique, guadaloupe, jamaica, &c., and you are met with enormous port charges, and duties amounting to prohibition on the staple articles of the new england states; codfish, beef, pork, butter, lard, cheese, hams, &c. it is true we are admitted every now and then, at the mere will and caprice of a governor, to import into those colonies flour at a duty of one dollar per barrel; rice and lumber in proportion; on condition that you shall not take away any article but rum and molasses, and this is the only avenue to our commercial hope. they are like the locusts of egypt in relation to our commerce. what has become of your , , tons of shipping, valued at fifty dollars per ton, amounting to $ , , , one-third of which belongs to massachusetts? is the gentleman willing to surrender the carrying trade to great britain? let him turn his attention to the ports of new york, philadelphia, baltimore, norfolk, charleston, and new orleans, and he will find that british ships are now taking the bread out of the mouths of his own constituents. they are enabled to take freight on so much lower terms than american vessels can afford to do it in consequence of the very great difference of duties in great britain, between importations in america or in a british ship, that we cannot compete with them unless you will countervail them, and take a decisive stand in defence of your commerce to continental europe, and carry your produce direct to the consumers, and be no longer subjected to be fleeced by the monopolizers and retailers of the old world. they are not content to have the whole products of your soil deposited on their island, on which they receive an enormous import, and raise an extra war tax, besides; but they will claim very soon the exclusive right to carry it when and where they please in their own ships. we are thus reduced to a worse situation than in a state of colonization; we have now all the disadvantages of being plundered by their navy, and none of the advantages of receiving its protection, although they have the impudence to charge us four per cent. convoy duty on their gewgaws and manufactures, which convoy they do not give us. can this be a desirable state of things? and if persevered in, i am convinced the commerce of the united states will descend into the same tomb with the gentleman's story of the coffin. there are three classes of your citizens to be provided for, as contemplated in the provisions of this bill--first, sequestrations in france, spain, italy, holland, denmark, sweden, prussia, and russia. second, those who have sailed to france under the faith of the duke of cadore's letter of the th of august. third, importers of british manufactures. but it would seem by the arguments i have heard advanced in this house that there were only the latter class to be provided for, and, as i presume british precedent and authority will be admitted by the gentleman from massachusetts to be good evidence, i will inform him and the house, what was the concurrent testimony of the english merchants before the bar of the house of commons on the subject of exports and imports of the united states. they stated on oath that the exports to the united states were about twelve millions sterling, and that the imports were about four millions on an average for the years , , , when there were no decrees against american commerce, and consequently it took its own natural channel and supplied each market according to its natural consumption. the difference between export and import being about eight millions sterling against us. those english merchants state that it was made up and received from our trade with continental europe; this has not been disproved by the british chancellor of the exchequer, nor by his friend stevens, of war in disguise--it is a fact; they cannot deny it. and shall we be told about the profitable commerce with great britain? after a statement of these facts, shall we go on to gorge their warehouses with twelve millions sterling of produce, when their own internal consumption does not exceed four millions sterling? i hope not; and i do trust that the time is not far distant when we shall assert and defend our just rights. mr. blaisdell.--mr. speaker: nothing would induce me to address you at this late hour, while there is so great a commotion in, and so many tokens of impatience manifested by, the house, but a sense of duty, and a desire to lend my feeble aid in arresting the progress of a measure which, in my opinion, involves a question of no less importance than whether we are prepared, after having been insulted, robbed, and deceived, by the french emperor, to follow the fatal example of the petty, servile states of europe, and throw this people into the embraces of that monster, at whose perfidy and corruption lucifer blushes and hell itself stands astonished. if i understand the amendment of the honorable gentleman from virginia, its principal object is to renew the non-intercourse of , so far as it respects great britain, which was previously attempted to be revived by the proclamation of the president of the second of november last. i should have supposed that, rather than have made so glaring a confession that that state paper misstated fact, the gentleman would have been dissuaded from his darling object, the non-intercourse. but it seems that when it comes in competition with the views of napoleon, the veracity of the president must be sacrificed. but, sir, convinced as i am, that our paper war, which has been applied to all purposes, even to calling out the army, raising the militia, pressing the horses, &c., and sending them on an expedition the distance of five hundred miles, with express orders not to fight, has damned the character of this government, broken down the spirit of the nation, embarrassed our citizens, and emptied the late overflowing treasury, so as to render the resort to borrowing necessary; i cannot but hope that the amendment on your table will be rejected to give place to an amendment offered some days ago by an honorable gentleman from new york, (mr. emott,) when this bill was under discussion in committee of the whole. sir, if i understand that amendment, it went to suspend the whole restrictive system, except the third section of the law of may last, which saves fines and forfeitures incurred under our various restrictions. this amendment, to be sure, changes the position recommended by the executive, but not much more than the bill, with the addition of the amendment now under consideration. although it becomes this house to pay due deference to executive recommendations; yet, if there are good reasons for a departure from such recommendations, it equally becomes the members of this house, out of a regard to the correctness of their own proceedings, to make such a departure correspond with the reasons which produced it. the position recommended by the executive made its first appearance in a short paragraph in the president's message, recommending such a modification of the law of may last, as would remove all doubts as to its exposition and execution; for the details of such modification we are referred to the report of the secretary of the treasury. in this report we find a project recommended to enforce the non-importation against english merchandise of every kind and from every country. in the first place, by making the proclamation of the president, declaring that the french edicts had ceased to violate our neutral commerce on the first day of november last, the only evidence of that fact; and in the second place, by authorizing the officers of the army and navy to enter ships, dwelling-houses, stores, or any other place, to search for and seize merchandise suspected of being imported contrary to law, and making a donation of the boon so seized to the wretch who should be hardy enough, in defiance of all moral obligation, thus to rob his neighbor; and in the third place, by declaring all merchandise so seized in the northern section of the union, adjoining the british provinces, to be forfeited, unless by a palpable inversion of the rule of evidence in all other cases, and even in this case, adopted in all other sections of the union, he is able to prove that the merchandise was legally imported and the duties paid--with many other provisions, all of which have been laid before this house, in the first bill on the subject reported by the committee of foreign relations, the details of which are too well recollected to need pointing out, or to be suffered to meet a public investigation at this time. but, sir, with all due deference to the high ministerial officer who recommended the project, and likewise to the honorable committee who reported the bill, i may be allowed to pay it the compliment of saying that, in my opinion, previous to the reign of that tyrant, who, by a military force, aided by projects of this kind, has destroyed the sanctuary of justice, and has spread pillage, debauchery, robbery, and death, throughout the greater part of europe; such a bill as that would have been scouted from this hall as the production of a madman. but on receiving the message of the president, covering the letters of mr. russell, the american chargé des affaires at paris, stating that american vessels, loaded with _bona fide_ property of american citizens, had been seized and sequestered in the ports of france, under the berlin and milan decrees, as late as the th of december, doubts seemed to arise in this house, whether the decrees had ceased to operate on the first of november, as the president had declared. and the bill was sent back to the committee, for the purpose, as i understood, of bringing in a bill to suspend the operation of the law of may last, until we should hear from france, whether the emperor had disavowed those seizures, and whether the decrees had actually ceased to operate on the first of november. and i did understand the honorable chairman of the committee, and several other gentlemen on the other side of the house, to say on that occasion, that if, after we had new arrivals from france, that did not prove to be the case, they should be as ready as any gentleman to repeal the whole code of restrictive laws until the emperor should learn to respect our rights. what evidence have we had since to give us a more favorable prospect, as it respects the revocation of the decrees? not a syllable. but, on the other hand, we have conclusive evidence that they were not so revoked that their operation ceased on that day. if it be asked where this evidence appears, the answer is ready. in the first place, by the letter of the grand judge, the duke of massa, to the president of the council of prizes, as also by the letter of the minister of finance to the director general of the customs, both dated the th of december, fifteen days after the manly remonstrance of mr. russell, in the case of the orleans packet; in which remonstrance he states the outrageous conduct of the custom-house officers, and requests a prompt and speedy disavowal of the seizures, and that the property be again placed in the hands of the owners. but, sir, is there any thing in these two letters which looks like a disavowal of the seizure in express violation of the promise of the duke of cadore? no, sir, although these letters were written fifteen days after the remonstrance of mr. russell. instead of this they both agree that the decrees did not cease to operate on the first of november, but that the property taken with the orleans packet, and all the property which should be seized between the first of november and the second of february, must remain in depot to wait the pleasure of the emperor, on our causing our rights to be respected by england. but how, mr. speaker, are we to cause our rights to be respected? is it by merely reviving the law of may last, as is the object of this amendment? certainly this is not their meaning; for both these letters have reference to that law, as well as the proclamation of the president giving it effect, and to the circular of the secretary of the treasury, addressed to the collectors of the several ports, enjoining a strict execution of that law. no, sir, this is not what is to be done, which will satisfy the emperor. he who flatters himself that this will be sufficient, shuts his eyes against official evidence to the contrary; as well in the above-recited letters, written with a perfect knowledge of the performance on our part, and the promise of a performance on the part of france on the first day of november, as in the letter of the french minister in the united states on the th of december, in which we are told that the french restrictions on our commerce are not to cease, but only on the result of firm and energetic measures to be adopted and persevered in by the two governments against the common enemy. but shall i be told that the letters of the grand judge and minister of finance promised that the property taken from our citizens since st of november should be restored, if we cause the law to be carried into effect after the d day of february, and therefore we were to believe it and ought to wait until we hear whether that has been the case? for the honor of my government, i hope not. is it really come to this, that we are brought to acknowledge that the duke of cadore was correct when he told general armstrong that his majesty could place no reliance on the american government? no, sir, if this be true, for heaven's sake let us not express it. but what is this amendment which re-enacts the law of may last, and such pitiful reasoning as i have heard on this occasion, but placing our seal to that infamous insinuation? the president, on the mere promise of the minister of the emperor, that the berlin and milan decrees should cease to operate on the first day of november, placed full faith and reliance on that promise, and issued his proclamation on the d, presuming the promise had been fulfilled--and, shall we say that the emperor is justifiable in disbelieving the law of may last, solemnly enacted by the three branches of the government and the president's proclamation, together with the circular of the secretary of the treasury, enjoining the law to be carried into effect? i hope not; for if we are become so pitifully servile as this, well might cadore, in his letter of february th, , tell general armstrong that the americans were without just political views, without honor, and even independence. and if we, by adopting this amendment, condescend to justify the emperor, in his insult upon the plighted faith of our government, in my opinion we shall furnish the american people and the world with just ground to say amen to the declaration of cadore in that respect. will any gentleman still say, that the decrees ceased to operate on the first of november, since we have had official information from the french government itself, that our vessels are to be seized under these decrees, until the second of february? i trust not. those gentlemen who support this amendment, ought to recollect that the sections which go to re-enact the law of may last, contain a confession that that law is not now in operation; for if the decrees did actually cease to operate on the first of november, no one doubts but the law is now in full force, without the provisions of this bill. when the honorable chairman of the committee first offered his amendment, a misunderstanding seemed to take place between him and two gentlemen on the opposite side of the house, viz. the gentleman from maryland, (mr. wright,) and the gentleman from tennessee, (mr. rhea,) which undoubtedly happened in this way. while the honorable chairman well knew that the decrees did not cease on the first of november; therefore to keep alive the spirit of the law of may, which gave england three months after they did cease, it became necessary to lengthen the time for her to revoke; and the other two gentlemen, as it would seem, really supposed, that because mr. pinkney had said that cadore's letter was precision itself, these decrees really did cease to operate agreeable to that promise; although we have the official information from mr. russell on our tables, that the orleans packet was the first case that had happened after the first of november, to which the berlin and milan decrees could have been applied, and that they were applied in that case, and that several late arrivals, which left france from twenty to twenty-five days afterwards, bring no information from him that a change had taken place, and had that been the case, he would certainly have communicated information to the government before the rising of congress. on the contrary, these arrivals confirm what he had stated, and say, that every vessel arriving in france shares the same fate. mr. speaker, until i heard those two gentlemen, i did suppose that no man of common sense could have believed a position, in such direct opposition to evidence. and from the opinion which i have of the discernment of the gentleman from tennessee, i think i must have misunderstood him, while perhaps it may be improper to include the other gentleman in the supposition. sir, i seldom trouble the house with any observations of mine, nor is it my intention, at this time, to examine and expose all the winding and management which has been practised, to bring about such a state of things as to render plausible this measure at this time. i shall, however, examine the non-intercourse system from the date of the law of march, , and inquire what was its professed object? what use has been made of it? and how has it been regarded by the belligerents? and also notice some of its effects upon our own citizens as well as upon the treasury. what must be the inevitable consequence if this measure is suffered to go into effect? i take it to amount to an entire non-importation of any of the articles, products, or manufactures of more than three-fourths of the civilized world, to which our merchants would, at this time, run the risk of attempting voyages; for, from the continent of europe no one returns unless at the expense of this government. the dominions of great britain, including the east and west indies, as well as her european dominions, and those on the american continent, are immense. the products of these various countries formed a principal part of those importations of the last year, which, while the non-intercourse slept, gave new life and vigor to every branch of business. our seaports, which the year before presented the gloomy appearance of cities besieged by a hostile foe, again resumed the appearance of enterprise, industry and wealth. thousands, who in were either a burden to their friends, in the poor-house, or begging their bread in the streets, were in enjoying the fruits of their industry in a comfortable supply of the necessaries of life, while the farmer and planter sowed his seed and cultivated his field, with the comfortable prospect that his crop would not decay on his hand for want of a market. now, sir, although exportation is not interdicted by this bill, yet i apprehend the result will be much the same. it can hardly be expected that great britain, who gentlemen on the other side of the house are fond of considering as the cause of all our commercial distress, will condescend to pay us specie for our produce, while our ports are closed, not only against her shipping of all kinds, but against every article of her products and manufactures, as well as those of her colonies and dependencies, while they are open to those of her enemy. again, what was the effect of the non-intercourse in upon our treasury? in addition to the bankruptcy and wretchedness spread over the face of the whole country, we are informed by the annual report of the secretary of the treasury, laid on our tables, that the net revenue arising from duties on merchandise and tonnage, accruing during that year, amounted to only $ , , , while we are informed in the same report, that this source of revenue in the three first quarters of the year , while commerce was free, amounted to a sum exceeding $ , , , and the secretary adds, that he believed the whole revenue arising from duties on merchandise and tonnage for that year would amount to more than $ , ; making an increase in this year, when commerce was unshackled, of $ , , , notwithstanding all the robberies of napoleon, which probably amounted to more than forty millions, a free importation of the avails of which would have greatly increased the revenue of that year. from this view of the subject, we find a deficit in the revenue of , caused by this measure, of $ , , , and, in anticipation of the effects of the law now about to be enacted, the secretary of the treasury has, in the same report, recommended an immediate additional duty to be laid upon importations, which, together with the high duties already established by law, he thinks will not amount to more than $ , , ; making an anticipated deficiency in the next year's revenue, occasioned by this measure, of $ , , , compared with that of . but if we compare the revenue arising from duties on merchandise and tonnage during the year , while commerce was restricted by the non-intercourse, with what it was in , while it was unshackled, we shall find a deficiency of about $ , , . from this view of the subject, which is taken from authentic documents, which i invite gentlemen to controvert if they have it in their power, it is demonstrated that if we suffered this system to go into operation, we are not only to again reduce our citizens to a state of bankruptcy in their private fortunes, while loaded with additional taxes, but, notwithstanding the aid of these additional taxes, our treasury is, if possible, to be reduced to a more complete state of bankruptcy than at present. i put it to gentlemen, who are in the confidence of the cabinet, to say, why we are called upon again to plunge this nation into such a state of poverty and wretchedness? is it necessary as a measure of self-defence, as the only mode of resistance which will bring england to terms? for myself i should suppose that our late experiment in this species of warfare, at which france took so much offence, as to take occasion to seize and confiscate the property of american citizens, to the amount of $ , , , which rendered necessary an appropriation of $ , during the present session, in order to enable those of our citizens, who had been thus robbed and plundered, to revisit their native shores, afforded a spectacle too humiliating to suffer us to make another attempt so soon, and before we have so far recovered from the effects of our late experiment as to be able to defray the ordinary expenses of government without having recourse to annual loans for the purpose. are we bound to adopt this measure on account of the faith of government being pledged to france by the law of may last? here give me leave to inquire what has been the further effect of this law. it seems england, although she saw that if it had any operation at all, it operated only against her, was willing to consider it as a municipal regulation of our own, and treated it as such, while bonaparte at first, and for ten months, passed it over as inoffensive to him, until our vessels, which had been shut up in our ports by its elder sister, the embargo, having got released from that strong measure, flocked into the ports of france, spain, holland, and naples, all under the immediate and entire control of france, when, on the d march, an order was issued by his gracious and loving majesty to seize and confiscate the property of our citizens in all those countries; which property is, by the best calculation, estimated at more than forty millions. and you will perceive, mr. speaker, that the duke of cadore saw, that, by suffering the law to pass unnoticed, till our property released from the embargo had filled nearly every port in europe under french control, and then issuing an order which was to have a retrospective operation of ten months, was such a gross outrage upon every principle of honor and justice, as well as the usages of public law, that he, in a letter to general armstrong, of the th august, , attempts to excuse the piratical transaction, by saying that the emperor knew nothing of the law of march, until very lately. but, i pray gentlemen to take notice that general armstrong, in his letter to cadore of the th of march, (five months before the one just recited from cadore,) asserts that this law was communicated to him in the month of june or july preceding--one whole year before the declaration made by cadore. but to pursue this subject: on the first day of may, , while this robbery, i ought to presume, was unknown to the executive--certainly to the people--this non-intercourse law was repealed; but the majority, for wise purposes, i presume, did, in the same law that repealed the non-intercourse, give the president power, in case england or france should, before the st day of march, so revoke or modify her edicts as that they should cease to violate the neutral commerce of the united states, to declare the same by proclamation; in which case, the non-intercourse should be revived against the nation neglecting to revoke or modify her edicts, in like manner, for the space of three months after the date of such proclamation. and you will recollect, sir, that this law was also opposed by the minority, not so much, perhaps, because they suspected either the integrity or impartiality of the president, as because they thought it unconstitutional to commit a power to the executive which was, in its nature and effect, an act of legislation, viz: to revive a law at his discretion which was to affect the great interest of the nation, and might result in war. i say, at his discretion; and i ask gentlemen to take notice that the law reads, "so revoke or modify." this law was also sent by the president to our ministers at london and paris, as he states in his message. but, what was it sent there for? only to be used as an inducement to those nations to revoke their unjust edicts, which was the avowed object of the provision when it passed. and, if sent there for that purpose, it would seem, that to have acted a neutral part, it ought to have been used alike at the palaces of st. cloud and st. james. but, mr. speaker, what was the fact? here we may learn the management of which i spoke when i first addressed you. this law, which you will perceive was in the nature of a generous overture made to the belligerent who first revoked his edicts, changed its character when offered to the other belligerent, who should neglect to revoke the obnoxious edicts until after his enemy had done so; and, instead of being a generous offer, contained a threat, that if she did not revoke, we should shut our ports against her products, while they should be open to those of her enemy. and this is the light in which it was viewed by our government, as will be seen in mr. smith's letter to general armstrong, of the th day of june, , (printed documents, p. ,) in these words: "it might be added, that the form in which the law now presents the overture, is as well calculated as the overture itself to gain a favorable attention, inasmuch as it may be regarded by the belligerent first accepting of it as a promise to itself and a threat only to its adversary." for this view of the subject, gentlemen will perceive that it is much more agreeable to close any matter in dispute upon a generous offer for so doing, than it would be to do so while threatened by their opponent that if it is not done they must suffer the consequence of their own folly and his vengeance. now, in looking through the documents, i mistake if gentlemen have not discovered some management in this business, so that while the law was presented to france as an offer made to herself, it should be presented to england in no other character than that of a threat. it seems that the first correspondence with our minister which we are suffered to see, is a letter from mr. smith to mr. pinkney, of the d may; although it appears from that letter that the secretary of state had sent a copy of the law in a previous letter of the th of that month to mr. pinkney, as also another copy in the letter of the d; but we hear nothing of instructions in either to use this new overture, which the law presents, to the best advantage at the court of st. james, while it retained its character of an offer made to that government. indeed, it would seem most natural to suppose that the instructions given in this business were contained in the letter of the th, which was the first enclosing a copy of the law. but, at this we are not suffered to look, nor at the one sent to general armstrong, of the same date, which was also the first to him enclosing a copy of the law. but, mr. speaker, as we are not suffered to see the first correspondence on this important business, which we are called upon by the executive to carry into effect by a new act of legislation, it becomes doubly our duty to examine well this letter of the twenty-second, and see what that treats of, and whether it compares with the first we are suffered to see, sent to general armstrong on this subject. in this letter to mr. pinkney of the twenty-second, the secretary commences, as he says, with much surprise, that great britain had not revoked her blockades, and that she had not sent a man of rank to replace mr. jackson; and, after having dwelt at great length on the latter of these subjects, he mentions that he had sent a copy of the law, as also another, in his letter of the fourth of that month, and tells mr. pinkney to let the british government know that the provisions of the law would be carried into effect, but not a syllable of proffering it as an offer made to that government and a threat to france. but, instead of this, the secretary selects two subjects, which he must have known would be difficult to close, and tells mr. pinkney that if another minister was not sent to replace mr. jackson, to let the british government know that he would return to the united states. and as though this was not sufficient to prevent the british government from closing with the conditions of the new overture, the attack on the chesapeake must be settled in a manner agreeable to the propositions made to mr. rose and mr. erskine, which he might well know would not be done, as the british government had told him it could not be closed in that way. on the first of july, mr. pinkney acknowledges mr. smith's letter of the twenty-second of may, and very properly goes on to execute the instructions it contained as to the british government sending a man of rank to replace mr. jackson, &c. and, in my opinion, very properly notices the scrap of instructions it contained, respecting the law of may last, by merely mentioning, that while he is engaged with lord wellesley on these other subjects, he thinks he shall draw his attention to the non-intercourse law, but i find no account of his ever presenting the law to that government. now, mr. speaker, while we see in this letter of the twenty-second the substance of all we are permitted to see of the use to be made by mr. pinkney of this law, as an inducement to the british government to revoke the orders in council, let us examine what was the course pursued towards the french government to induce it to take advantage of the law, while it retained the character of a favorable overture, so that the british government should have to meet it as a threat, or as a rod held over them to procure the revocation of their edicts. in order to do this, i shall examine the first letter which is suffered to come to public view, from secretary smith to general armstrong, after the date of the law of may first. this bears the date of june fifth, documents, page . in this, we find that he had sent two before, each one enclosing a copy of the law, and no doubt both containing instructions what use to make of it. for we find, even in this third letter, that mr. smith tells general armstrong, (to use his own words,) "if there be sincerity in the language held at different times by the french government, and especially in the late overture to proceed to amicable and just arrangements in the case of our refusal to submit to the british orders in council, (not blockades,) no pretext can be found for longer declining to put an end to the decrees of which the united states have so justly complained." and here, i entreat gentlemen to notice that this is the first ground stated by our government to that of france, as being that which would be insisted upon from england--a compliance on her part required to entitle her to the provisions of this law, viz., her relinquishing the orders in council. we may here notice, that mr. smith adds, as a further inducement to france to take advantage of the law, while it retained the character of a favorable overture, "that by putting in force the non-intercourse against england, agreeable to the terms of this statute, that the very species of resistance would be made which france has been constantly representing as the most efficacious." but, mr. smith goes still farther in his instructions, and tells general armstrong, "that it may be added, that in the form in which the law now presents the overture, it is as well calculated as the overture itself to gain a favorable attention, inasmuch as it may be regarded by the belligerent first accepting it as a promise to itself, and a threat only to its adversary." in this letter, we find that the secretary states a first ground, which was necessary in the first instance to entitle the french government to the provisions of this law. what was this ground? why, he tells general armstrong to let the french government understand that the president would not proceed to give the law effect, if the restoration of the property of our citizens be finally refused; and closes his letter by directing him to let that government know that the only ground, short of a preliminary restoration of the property, on which the contemplated arrangement could take place, would be an understanding that the confiscation was reversible, and that it would become immediately the subject of discussion, with a reasonable prospect of justice to our injured citizens. was this the ground on which the subject was placed? it seems so, from this official letter of the secretary. yes, sir, it was; and with due deference, i may be allowed to say, the only honorable and just ground; and if the american government had possessed independence enough to have still occupied this ground, we would not have had the mortification to discuss the bill on the table at this time. but, instead of this, although mr. smith had just received cadore's insulting letter, in which he more than insinuates that, as a government and nation, we are destitute of just political views, without honor, energy, or even independence, and closes by letting our government know of the seizure and sale of the property of our citizens in all the ports of europe under french control; what was the conduct of the american government on this occasion? i entreat gentlemen to take notice, that, with this horrid picture of insult and robbery fresh in their recollection, the same conciliatory disposition, guided by the principles of neutrality, which dismissed a british minister for an implied insult, induced mr. smith to inform general armstrong that the president thought it best not to make any animadversions on that subject at that time. (printed documents, page .) the next letter on this subject worthy of notice, is one of the th of july, in which mr. smith acknowledges the receipt of information, that the property which he had said in his last must be restored, in order to entitle france to the american commerce while it was denied to england, was sold, and the proceeds deposited in the _caisse prive_--privy purse of the emperor. here, indeed, mr. smith seems to have almost forgot himself, and to conceive he was giving instructions how to proceed with a british minister, and tells general armstrong to demand every reparation of which the subject was susceptible. but, mr. speaker, is it not worthy of notice that he closes even this spirited letter, with such a history of piracy and insult then on his desk before him, by quitting the ground he had taken in his letter of the fifth of june, and, instead of a proposed renewal of the non-intercourse against england, if she should neglect to withdraw her orders in council, which was the only ground taken by the president with mr. erskine, and also the only thing contemplated when the law of may last was passed, as also the only ground taken by himself only one month before, (having, it is presumed, heard from france in the interval,) he condescends to tell the general, that if france should demand it, he might give her to understand that it was the president's intention to renew the non-intercourse against england, if she did not also rescind her blockades. it is here again to be noticed, that he again repeats, what he had before told general armstrong, that a restoration of the property was indispensable, in order to a renewal of the non-intercourse against england. but again: will, i had like to have said, the servile manner, in which a rescinding the blockade is coupled as a condition with the withdrawing the orders in council, escape notice? immediately on instructing general armstrong to state to the french government that a repeal of the blockade of eighteen hundred and six would be insisted on, the secretary adds: "you will press the reasonableness of permitting the united states to proceed in such way as they may think proper, in relation to any subsequent blockades, or any other blockades not against france," which to me reads in this way, _i. e._, as we have, at the request of the french government, receded from our first ground, and included blockades also, you are instructed humbly to request bonaparte to permit us to do our own business in our own way in future. _my god!_ after all this, to see the government of my country soliciting, at the feet of the emperor of france, for permission to manage their own affairs in their own way! what american can read this correspondence without laying his hand upon his heart and exclaiming, o my government, my government, now is the gold become dim, and the most fine gold changed! the next thing we meet with, is mr. smith's letter of the d of november, to general armstrong, enclosing the president's proclamation, declaring the edicts of france so revoked, as that they ceased to violate the neutral commerce of the united states, and of course the non-intercourse to be revived against england after the d of february, if she did not in the mean time revoke her orders, which, after the ground taken, and so often repeated, with respect to the restoration of the property, must astonish every american. but we have still this as a consolation, that mr. smith, notwithstanding he had been told by the duke of cadore that it was impossible any compromise could take place on that subject, says in the letter enclosing the proclamation that the president presumes that the requisitions contained in his letter of the th of july, as to the restoration of the property, will have been satisfied. in the name of god, mr. speaker, what grounds had he for this presumption? in addition to this, in his letter of the th of november, mr. smith instructs general armstrong to let the emperor know that the third section of the law of march, , at which he took so much offence, was not intended to operate against his subjects, but against our own citizens. and although this may be, and probably is, true, yet a confession of this kind, after so recent and aggravated insult and violence, must i think be sickening to the american people, and napoleon himself will be at a loss to know why it was made unless to testify our loyalty. but our loyalty to the contrary notwithstanding, the duke of cadore in his letter to general armstrong of the th of september, in answer to one from him of the th of that month, tells the general, that the emperor sees with pleasure that the americans are far from acknowledging the tyrannical principles of english legislation, yet informs him that as to the merchandise confiscated, it having been confiscated as a measure of reprisal, the principles of reprisal must be the law in that affair. now, mr. speaker, after seeing how the law of may, , has been used with the french government, and for aught we know, not used at all with that of england, until it had assumed the character of a threat, together with the various changes of position taken by our government in this business, i think it demonstrates a management, which, if duly examined, will not leave much doubt whether it be indispensably necessary to suffer this law to go into operation, either as a measure of resistance against england, or of good faith towards france. for instance, at one time england must repeal her orders in council to entitle her to the benefit of the law; at another, viz: after hearing from france, the condition must include a repeal of the blockades also, and on the part of france, she must rescind her decrees and restore the property, then a promise is to be accepted as it respects the property, and, to top the climax, the proclamation issues on the presumption of an agreement having taken place, on the part of france, that the property shall be restored. but after all this we are told by cadore, on the th of september, to be contented, for as to the property in question it will not be restored. but, mr. speaker, it seems that the president, in compliance with a resolution of the house of the st of december, has furnished documents which put the question beyond a doubt, that the proclamation was issued, declaring that the french decrees were repealed, so that they ceased to violate the neutral commerce of the united states, when, to say the least, he had no official information of the fact, or, if he had, he has taken care to keep it to himself. mr. smith, in his letter to turreau, of the th of december, is compelled to say in effect, that the french restrictions on our commerce are not rescinded, or, to use his own words: "if, then, for the revoked decrees, municipal laws producing the same commercial effect have been substituted, the mode only, and not the measure, has undergone an alteration." in this situation, i should like to be informed why we are called upon by the executive so to modify our laws as to carry the non-importation against england and her dependencies forcibly into effect, and thus destroy the small remains of our commerce, the effects of which we have so recently felt at the treasury, since the repeal of the non-intercourse law of may last, as i have already shown from the secretary's report. this information i have not as yet been able to obtain, although i have sought for it, unless i resort to the last paragraph in general turreau's letter of december , to mr. secretary smith, in answer to one from the secretary, remonstrating against the exclusion of cotton and tobacco from the ports of france. in reply to which he says, among other things, that he thinks some modification will take place in this respect, but tells him that this will depend upon the firm and persevering measures to be pursued by the two governments against the common enemy. in this intimation of his imperial majesty through his minister, which, by-the-by, is not the first of the kind, will i fancy be found the only necessity of suffering this measure to go into operation. and are gentlemen prepared to obey? i trust not. no, sir, i will not for a moment entertain so degrading an idea. but firmly believing the contrary, i still hope the amendment will be rejected, and with it the whole restrictive system, until france shall learn to respect our rights. mr. speaker, if i am to be called an enemy to my country for opposing this measure, under present circumstances, to my country i will appeal; being entirely willing that the honorable gentleman from maryland (mr. wright) and his friends should share the whole of the honor of advocating the right of the emperor to take and withhold the property of our citizens. sir, it creates no astonishment to hear that gentleman contend that we are bound by the law of may to carry the non-intercourse into effect against great britain, but, to hear a gentleman possessed of the discernment of the honorable chairman of the committee who reported this bill, make this declaration, is truly astonishing, when the reverse is the fact. i trust i have already shown that in every communication from our executive to the french government on the subject, that government has been told that if, in connection with the revocation of the decrees, the sequestered property was not given up, the non-intercourse would not be renewed against england. these several letters were communicated to this house, and published nearly three months since, and are, at this moment, in the hands of the british government, and, by this tenure, that government has a right to rest assured that the non-intercourse will not be renewed against them. indeed, to believe the contrary, would be an insult to the plighted faith of the executive. mr. bigelow.--mr. speaker, i regret extremely that, at this late period of the session, and at this late hour of the night, the high sense of the duty which i feel that i owe to my constituents and to my country, should compel me to submit to the consideration of the house a few remarks upon this all-important subject. they will be of a general nature, candid, and as much as possible confined to the subject of debate. sir, on this occasion, i feel no disposition to censure the conduct of the president. permit me, however, before i proceed to the subject, to notice a very singular remark of the honorable gentleman from pennsylvania, (mr. ross.) that gentleman observed, "that when this bill was laid on your table, he was determined to vote against it; that he considered it wrong in principle, and injurious in its consequences; and that he should now vote against it, had not several gentlemen, particularly the gentleman from massachusetts, (mr. quincy,) been so severe in their censures upon the conduct of the administration. he felt it his duty to support the administration, and should, therefore, vote for the bill, although he disliked it." sir, i apprehend the president will not feel under very great obligations to that gentleman for this kind of support. for myself, i am free to declare, that stronger reasons than those must operate upon my mind, before i can give my sanction to a measure professedly impolitic and unjust. this bill, mr. speaker, is advocated on the ground that, by the law of may, , we are under obligations to france to prohibit commercial intercourse with great britain. if, sir, i rightly recollect, for i have not the law before me, the substance of the provision, as it respected france, was, that if she so revoked or modified her edicts and decrees, as that they should cease to violate our neutral commerce, and great britain refused, for three months, to pursue a similar course, then was this system of non-intercourse to commence, as it respects great britain. mr. speaker, i deny that the faith of the nation is pledged by the law of may, . it is neither a contract nor a treaty. to constitute a contract, two parties are necessary, at least. all writers upon the subject have so considered it; and, sir, if one party can make a contract with another, without the knowledge, consent, or approbation of the other, it is a new discovery, with which, as yet, i am unacquainted. such, sir, is the nature of the contract referred to. the congress was the only party concerned in making it. france knew nothing of it; it was made wholly without her consent or approbation. how, then, is the national faith plighted to france by that law? sir, i know of but one way in which the faith of this nation can be pledged to another, and that is, by a treaty approved and ratified by the constituted authorities; and surely, sir, no gentleman will contend that this law amounted to a treaty. if, then, it was neither a contract nor a treaty, the faith of the nation is not pledged. the most you can make of it is, as was observed on a former occasion by the honorable gentleman from virginia, (mr. randolph,) "that it is a rule of conduct for ourselves." but, sir, i am willing to admit, in case france had fairly and honestly complied with the conditions of the law, so often referred to, that good faith on our part might have required that we should pass the present bill. what was the condition to be performed on the part of france? sir, she was to revoke and modify her decrees, so that they should cease to violate our neutral commerce. this has not been done. the berlin and milan decrees are not even nominally revoked. look at the letters of mr. russell, our chargé des affaires at paris, of the tenth of december last. look at the letters of the dukes of massa and gaete, of the twenty-fifth of the same month. look at her conduct subsequent to the first of november, the time when you were informed that those decrees would cease to operate. has she not seized every vessel which has arrived at her ports since that period? upon this point i will not waste the time of the house by attempting to show that those decrees are still in force, a fact which has been already so fully and amply proved by the candid and able arguments of the honorable gentleman from new york, (mr. emott.) but, sir, i will go further, and, for the sake of argument, admit, not only that the law of may, , has all the binding force upon this nation of a treaty made by the regular constitutional authorities, but that the berlin and milan decrees were, on the fifth day of august last, actually revoked; and, after the first day november, ceased to violate our neutral commerce. there is still another important point to be considered, and i hope gentlemen will attend to it with candor. sir, it is a principle well established by the law of nations, as well as by the laws of nature and reason, that when one nation, in consequence of revoking certain acts injurious to another nation, claims from the other nation the performance of a promise made on condition that those acts should be revoked, it is necessary that the nation thus claiming the fulfilment of the promise, should first, not only revoke those injurious acts, but it should also be done fairly and honestly, without subterfuge or reserve, and without, at the same time, adopting other measures equally injurious, and producing the same effects. now, sir, admit that the declaration of the duc de cadore, in his letter of the th of august, , that the berlin and milan decrees were revoked, and, after the first of november, would cease to violate our neutral commerce, was an actual revocation of those decrees; still, sir, if this was merely to amuse and deceive us, if another act equally injurious was at the same time substituted, will it be contended that france has, nevertheless, fairly complied with the conditions of your law? sir, it is a very singular fact that, on this very fifth day of august, another decree was issued by the french emperor, which was equally injurious, and amounted, in fact, to a prohibition of our commerce, as much as the berlin and milan decrees. i allude to the duties established by the emperor on articles of american produce, which were so enormously high, that the owner would prefer an abandonment of his cargo to a payment of the duties. even this was insufficient; for, by a subsequent decree, various articles were prohibited, and those which were allowed, must only be exported in vessels which should sail from charleston or new york. is this, sir, that fair, that honest repeal of the berlin and milan decrees; is this that _bona fide_ performance of the condition; that ceasing to violate our neutral commerce, which lays us under such solemn obligations to france? am i not, then, mr. speaker, authorized to say, that the condition of the law of may, , has not been complied with? i trust, sir, as to this point, that the letter of the secretary of state to mr. turreau, of the th of december last, will be considered as conclusive. in this letter, the secretary, speaking of the enormous duties which have been mentioned, observes: "if, then, for the revoked decrees, municipal laws, producing the same commercial effect, have been substituted; the mode only, and not the measure, have undergone an alteration." to my mind, sir, this insidious, this perfidious conduct, on the part of napoleon, is infinitely more base, and merits the indignation of the american people infinitely more than would an open refusal to revoke the obnoxious decrees. it is an attempt, if i may be allowed the expression, to gull and deceive us, by an artful, intriguing policy, which ought to excite our jealousy, and rouse our highest resentments. i trust, sir, i have fairly shown that our faith is not plighted, that we are under no obligations to napoleon. if in this i am correct, then the passage of the present bill is a mere question of policy and interest. it would be a mere waste of time to attempt, by a reference to the past evils which have resulted from this restrictive system, to show the impolicy of its continuance. the bad effects already produced are but too well known. this, sir, is the favorable moment to erase it from your statute books; the policy and interest of the nation require it. let us examine, for a moment, the consequences of its continuance. do you believe, sir, that your merchants, a great portion of whose property has been seized by foreign nations, when the remnant of their vessels, which have escaped, shall, upon entering your own ports, be seized by your own custom-house officers, that they will be satisfied to lose the remainder of their property, in pursuance of your own laws? they will think it hard enough, that millions of their property have been seized by france, by denmark, and by sweden, without having the remainder seized on their return, and confiscated by their own government. surely, sir, they will require strong evidence of the fact that your faith is plighted to france, before they will be satisfied with the measure you are about to adopt. mr. speaker, i am not the representative of merchants; i feel no peculiar interest in their favor, but i consider them a useful class of citizens; their interests are closely connected with the interests of your farmers; and, in this point of view, they are at least entitled to notice. hitherto, your merchants have been noted for their fairness, and for the respect they have paid to your revenue laws. but, sir, after having their property plundered by france, by denmark, and sweden, will they not, when they learn that from a scrupulous regard to your faith plighted to france, a faith, however, which has no existence, you seize, with a few exceptions, all which return; will they not, i repeat it, endeavor to land their cargoes so as to escape the vigilance of your officers? have you no apprehension that, when they have once learnt the art of smuggling to save their property from seizure and confiscation, they will afterwards practise it, to avoid the payment of duties? i fear that this system will have a tendency to corrupt the morals of your merchants, and from them it will extend throughout the country. wednesday, february . the house formed a quorum at half-past ten o'clock. mr. gold.--mr. speaker, at a period when the civilized world is convulsed by continued war, to its centre; when the european continent is exhibiting the marks of ruthless conquest, and is threatened with all that barbarism, with which attila, with his invading hordes, overwhelmed the roman world, it becomes the councils of this nation to move with cautious steps on the theatre of our foreign relations; to move, sir, with a fixed eye on the great law of neutrality, and yield an implicit obedience to its high injunctions. it eminently becomes, sir, the government of this country, in all our concerns with the belligerents of europe, to carry an even hand, to manifest to both a fair, impartial, and equal conduct. without such a course, the consequences to our peace and prosperity, from the jealousy and violence of warring nations, are inevitable, and, with it, we can hardly promise ourselves exemption from aggressions and spoliation; such and so destructive is the spirit of the times. need i, sir, to excite caution in legislation, refer the house to the consequences of the non-intercourse act of the st of march, ; for, however free from all exception from the belligerents was that act, yet france, in the wantonness of power, made it the pretext for the exercise of the rigorous right of reprisal by an additional decree, which, with the preceding, have, like the besom of destruction, swept our property from the ocean. it was on that act, that the rambouillet decree of the d of march last, was founded for its sole justification; and so do the very terms of the decree, shameful and disgraceful as it is, import. in reviewing the proceedings of our government under the act of the st of may last, (the act upon which the president's proclamation for a non-importation with great britain is founded,) permit me, sir, to ask if the spirit of a fair and impartial neutrality, so eminently necessary in the critical situation of the united states, has guided our proceedings with the respective belligerents? by this act, if either of the belligerents rescinded its edicts, violating our neutral rights, the non-intercourse act was to be put in force against the other refusing to rescind, and the president, by proclamation, was to declare such fact of rescinding. under this provision, sir, the president substituted a prospective engagement for a fact done; a promise for a performance; the future for the past, and hence, sir, have resulted our present difficulties; that crisis which bears so hard upon the american people. it is not, sir, my object to impeach the motives of the president in this ill-fated proceeding; i am to presume a love of country guided him; but it is impossible not to see in the measure a course indulgent to france, a construction upon the letter of the duke de cadore, of the th of august last, (touching the revocation of the decrees of berlin and milan,) the most favorable and advantageous to that country, and offensive to great britain. for, sir, notwithstanding the above proclamation, the noon-day sun is not plainer than that those decrees are not revoked; nor indeed, sir, will they, in my opinion, ever be revoked under the above act. the utmost extent of our hopes, from the last despatches transmitting the official communication of the twenty-fifth of december last, from the grand judge massa, and the minister of finance, gaete, is, that our vessels (with their cargoes) seized in the ports of france since the first of november, in violation of the stipulation of the above letter of the th of august, and of all that is holden sacred among nations, may be at some future day, under some new and embarrassing conditions, flowing from the policy of napoleon, restored to our suffering citizens. by the last paragraph of the above letter of the minister of the finances, it would seem that the emperor and king has shut his eyes upon past engagements, and referred all that concerns us to the second day of february, when new toils are to be spread, as is to be presumed, for the unsuspecting, credulous, and confiding american merchant and navigator. against the mass of evidence, that the french decrees are not revoked--evidence which is increased by the melancholy advices of every east wind--the honorable member (mr. rhea) from tennessee, refers us to the president's proclamation, as a foundation for our faith in the repeal of the decrees to rest on; this is evidence indeed of things not seen. as well might the trembling mariner look to his almanac for the state of the weather at the moment the pitiless tempest is beating upon him, and his vessel is sinking under the shock of the elements. whatever ground of hope or belief in the good faith of france existed at the time of issuing the proclamation, subsequent events have removed those grounds from under our feet, and blasted all our hopes; the wily policy of the french court stands confessed; the emperor loves but to chasten; he seduces but to destroy. while the indulgent course, the favorable interpretation of the letter of cadore of the th of august above mentioned, was adopted by the cabinet towards france; was a similar temper and disposition manifested in relation to great britain? i fear, sir, this part of the case will not well bear scrutiny. that the orders in council, and not the doctrine of blockade, were the objects of the act of the st of may, in relation to great britain, not only the debates of the period, but the recollection of every member of this house, will bear me out in asserting. that mere cruising blockades, and every other blockade not supported by an actual investing force, is unwarranted by the laws of nations, is my clear conviction; it is the result of examination and reflection on the subject; but unfounded in public law as is the doctrine set up by great britain, its abandonment or modification can only be expected from treaty, and not by an isolated declaration at the threshold, under the threat of a specific alternative. the orders in council being removed, the blockade of may, , would have been little more than nominal; why then was it insisted on as indispensable, under the above act? through a strange fatality, something, inconsiderable in itself, is always found in our demands upon great britain, to bar a settlement. but, mr. speaker, what is calculated much more to put in jeopardy the neutral character of our government is the bill on the table. while all is uncertainty and embarrassment with france; while her decrees remain merely suspended and not revoked; while your merchants, trusting to the plighted faith of the emperor, have been drawn into the french ports and there betrayed and sacrificed; while commerce is bleeding at every pore under the merciless gripe of napoleon, we are called on to go farther to conciliate france, than she was entitled to, had she faithfully revoked her decrees. upon revoking his decrees, the emperor was entitled to have the act of the st of may carried into effect against great britain, and he was entitled to no more. such, sir, is the precise condition imposed on the united states by the letter of the duke de cadore, of the th of august, and this is the whole extent of the requirement. upon what ground, then, sir, is it that we are called on to pass this additional non-importation act against great britain? if france has revoked her decrees, is not a non-importation with great britain inevitable, and does it not exist? but i will put the key to the door; let us not dissemble; france has not revoked, and for that cause and that alone, has the question arisen, whether there be at this time a legal non-importation with great britain. if, sir, there be any other difficulty, in the way of a non-importation with great britain; if there does exist any other possible obstacle, let the advocates of the bill name that obstacle. i make the appeal to gentlemen, i demand of the chairman of the committee who reported this bill, why and wherefore it is presented? france has failed to revoke her decrees, and as such revocation was, under the act of the first of may, a prerequisite to non-importation with great britain, such non-importation must fall, unless this additional act in favor of france is passed. this, sir, is the whole length and breadth of the case; and on no other ground can this disastrous measure be placed. if france revoked her decrees, she was entitled to a non-importation against great britain, and if she failed to revoke, what? the bill gives the answer--she is equally entitled; so that, do what france may do, the end must be a non-importation with england. such, sir, is the logic of your bill; such the impartiality towards the belligerents; such and so barefaced the subversion of the great principle of the act of may last. the principle of the act of may was just and equal; our offers to great britain and france were the same, and the result, in case of refusal, alike to both. france met the offer by the famous letter of cadore, of the th of august; in which, with more than conjurer's skill, this disciple of the jesuits brought together and united both present and future; he revoked and did not revoke; he gave up the decrees and yet retained their operation or effects; he made the revocation both absolute and conditional; absolute for obtaining the president's proclamation, conditional for the purpose of eluding performance; absolute for drawing our property within his clutches, conditional for retaining it, to fill his coffers and fatten his minions; in fine, sir, the letter was one thing, or another thing, or nothing at all, as artifice might suggest or future events render necessary. but, sir, the most copious source of error that i have witnessed during the various debates upon the proceedings under the act of the st of may, is found in the extent of the berlin and milan decrees. the gentlemen who have commenced their career of conciliation with france, treated those decrees as operating only on the narrow ground of direct commerce between the united states and great britain and on our vessels to other ports which have submitted to british search; hence the effort to justify the late seizures of our vessels in france, upon grounds consistent with the repeal of those decrees, as being laden with british colonial produce, &c. but, sir, this cannot avail or give the least color to the pretence of a repeal. the berlin decree (that decree which emanated from the french emperor at the capital of prostrate prussia, where he sat like marius over the ruins of carthage) contains ten distinct articles; the th and th prohibit all trade in british merchandise, and, the more effectually to close all the avenues to the continent, exclude from the continental ports all vessels coming from great britain or her colonies, or that shall have visited the colonies after the date of the decree. the duke de cadore, by the above letter of the th of august, pledged the emperor, his master, for the entire repeal of this decree without any reservation. had this pledge been faithfully redeemed; had such repeal been had with good faith, it would have subverted the whole continental system and removed all difficulty both between the united states and france, and between us and great britain, as it must have produced the actual result required by great britain, in restoring the commerce of the world to that state it was in at the promulgation of the decrees. although the above decrees partake of municipal as well as external regulation, yet the french emperor, foreseeing that great britain would not relinquish the ground taken while the continental system, so hostile to her commercial interests, was continued, and yielding for a moment, as is supposed, to the groans of subjugated states, stipulated by the above letter for a relinquishment of his system by an entire repeal of those decrees. let me repeat, sir, had france proved faithful to her engagements, the united states would at this moment have had a prosperous commerce with europe, and the present state of things is fairly imputable to the emperor, with whom that bill on your table invites us to proclaim "all is well." i look about me, sir, with emotions of concern and anxiety to find a ground on which to justify the course adopted by this bill towards the belligerents. the peace, the reputation, and honor of my country are concerned. while the great principles of justice and fair neutrality shall be our landmarks and guide, come what may, fall when we may, we shall stand justified to the world, and what is of more consequence, we shall have the support of our own consciences; the sweet and consoling reflection, that we stand clear of fault and deserve a better fate. this bill will not give the united states this high and enviable condition. mr. pearson.--it is but seldom, mr. speaker, i address you, especially on subjects of the nature and importance of that which is now under discussion. perhaps on this account, i may not be the less entitled to your indulgence and the attention of this assembly. being opposed to the principles of this bill, and having no confidence in the reasons or pretences by which it is attempted to be justified, i shall not trouble you with an exposition of its particular details, however novel, arbitrary, and impolitic they may appear. the bill proposes substantially a revival of that system of commercial restrictions, under which the people of our country have so long and severely suffered. it substantially denies all intercourse with great britain and her colonies, by excluding from our ports british vessels of every description, and the products and manufactures of that nation of every kind, and to whomsoever they belong; while at the same time, every possible indulgence is granted to france--her vessels, armed and unarmed, her products and those of the nations which she has subjugated, find no restraint from us. here let me remark, that to those two contending powers, whenever their interest, or the interests of either of them come in contact with the interests of my own country, i feel no preference, i make no discrimination; my first best wishes ever are at home. i now solemnly appeal to gentlemen, why shall we, at this moment, make this marked distinction? why shall we take this hostile attitude against great britain, and open our arms to the embrace of france--when, by doing so, we must inevitably afflict our own people, and depart from that character of neutrality, which has been the alleged boast of the present and late administration; and which alone has afforded those in power an apology with the people for those wild schemes of policy, with which their course has been but too plainly marked, and that accumulated distress which every man has seen, and every honest man has felt? can it be because bonaparte has said he loves the americans? i, sir, know no other cause. i know it has been said on this floor, and said too by the honorable gentleman who reported this bill, and his honorable colleague, (mr. gholson,) that the berlin and milan decrees are revoked; and, in compliance with the law of the late session of congress, the faith of this nation is pledged to bonaparte, for the due execution of that law against great britain. to those opinions my understanding cannot assent--the obligation to bonaparte i neither feel nor believe. that none such exist will not, in my opinion, be difficult to prove. for a fair understanding of this question, it becomes necessary to apply to the law of may, . on that law and the proceedings which have been subsequently adopted by this government and france, must the propriety of the present measures be justified or condemned. the act alluded to, in substance, declares: "that in case either great britain or france shall, before the d day of march next, so revoke or modify her edicts, that they shall cease to violate the neutral commerce of the united states, which fact the president of the united states shall declare by proclamation, and if the other nation shall not, within three months thereafter, so revoke or modify her edicts in like manner, the restrictive provisions of the law of are to be revived and have full force and effect against the nation so refusing or neglecting to revoke or modify," &c., and the restrictions imposed by the act, are from the date of such proclamation, to cease and be discontinued in relation to the nation revoking or modifying her decrees in the manner aforesaid. the emphatic words of this law are, so revoke or modify, as that they cease to violate, &c. here is a positive, unconditional, indispensable prerequisite, to be complied with before the president was authorized to exercise the power given to him; a specific fact was to exist, and he was empowered simply to make its existence known to the nation; no discretion was allowed; nothing left to doubtful construction--no conditional promissory note of a perfidious agent, of a more perfidious master, was contemplated by the law. the great question now is, does the fact on which the proclamation was alone to issue, and on which its legitimacy solely depends, exist, or does it not? the very doubt ought to decide the question--the burden of proof unquestionably ought to rest on those who call on us to pass this law; and in their own language, execute the contract, and violate not the faith so solemnly plighted to "napoleon the great"--unfortunately the evidence on which they rely disproves the fact, and we are enabled to do what can seldom be done, and ought never to be required--prove a negative. the letter of the duke de cadore, of the th august, , the proclamation of the d of november, and mr. pinkney's diplomatic special pleading in his letter to the secretary of state, of the th of december, constitute the whole burden of proof upon which the advocates of this bill rest their defence, and the evidence of the fact on which alone it can be justified. i have stated the law, and what i conceive to be its obligations on the president and ourselves. it will now be proper to take a correct view of this famous letter of the duc de cadore of the th august, this honeyed charm, which has seduced us into a labyrinth, from whose gloomy cells and devious windings we are, i fear, not soon to be extricated. this letter, which contains but one sentence of plain truth, viz: "that the emperor applauded the general embargo laid by the united states"--after asserting the most palpable falsehood, by denying that the emperor had knowledge of our law of march, , until very lately, and justifying the seizure and condemnation of all american property which had entered, not only the ports of france, but those of spain, naples and holland, dating from the th of may, ; and declaring that reprisal was a right commanded by the dignity of france, a circumstance on which it was impossible to make a compromise--the letter proceeds: "now congress retrace their steps, they revoke the act of the first of march, the ports of america are open to french commerce, and france is no longer interdicted to the americans. in short, congress engages to oppose itself to that one of the belligerent powers which should refuse to acknowledge the rights of neutrals. in this new state of things, i am authorized to declare to you, sir, that the decrees of berlin and milan are revoked, and that after the first of november they will cease to have effect; it being understood, that in consequence of this declaration, (remark, mr. speaker, this declaration, not this fact,) the english shall revoke their orders in council, and renounce the new principles of blockade, which they have wished to establish, or that the united states, conformable to the act you have just communicated, shall cause their rights to be respected by the english"--then follows in sweet accents his majesty's declaration of love for the americans, his solicitude for our prosperity, and the glory of france. this is the gilded pill, in which lurks a most deadly venom, and which if we swallow, i fear all the political quackery of the nation cannot save us. on this letter, gentlemen rely for the revocation of the french edicts, and the freedom of our commerce with france. allowing the most favorable construction to this letter, and abstracting it from circumstances and facts both before and after its date, it will not bear gentlemen out in their conclusion; it does not satisfy your law, and did not warrant the state of things which has been and is about to be produced. instead of an existing and determined fact, we have a promise, and that too clogged with conditions, which it was well known to the emperor would not or could not be complied with to the extent required by him. the conditions which depended on great britain, he knew, never would be yielded, and that which depended on ourselves was nothing short of war with england or our own citizens, by oppressing them with a perpetual embargo. instead of an authenticated act of revocation, bearing the authority of the most ordinary law or edict of the french empire, we have nothing but a letter from the agent of the government, and which the emperor may disavow at pleasure--as was done in the case of the minister of marine, in his explanations to general armstrong of the intended operation of the berlin decree--instead of the restoration of the immense amount of american property, of which your citizens have been most cruelly and unjustly robbed by this fell monster of the age--and which the president declared, through the secretary of state, in letters to general armstrong of the th of june and july, must precede an arrangement with france, and was an indispensable evidence of the just purpose of france towards the united states; instead of having forty or fifty millions' worth of our property restored, we are vauntingly told, that the property was confiscated as a measure of reprisal, that the principles of reprisal must be the law in that affair, and that a compromise would be inconsistent with the dignity of france--the plain english of which is, we have the property and we will keep it. mr. speaker, are we to be thus amused? common honor and common sense revolt at the idea. an honorable gentleman from south carolina, (mr. cheves,) whom i am very much inclined to respect, in an ingenious argument which he made the other day, to prove that the french decrees were revoked, told you that the _revocation_ of those decrees depended on the mere _volition_ of the mind of the emperor, not requiring authentication or form; and although they might be revived the next moment, or substituted by other regulations equally affecting our neutral rights, still they were revoked. thus attributing an authority to bonaparte, descriptive of the power of the god of nature--when he said, let there be light and there was light. and in reply to the gentleman from massachusetts, (mr. quincy,) who contended that _form_ was essential to the repeal of a decree, he remarked that the gentleman wanted _form_ and not substance. from this course of reasoning, i conceive the gentleman has admitted, that this pretended revocation has neither form nor substance. an edict may be defined to be a law promulgated in such form as the institutions of the country require, or some act of sovereign authority, which has gone through the established forms of office, so as to become obligatory. the edicts of france have an appropriate form, their authority is attested by the emperor and publicity is given, for the direction of those whose duty it is to carry them into effect. sir, the decree of the most absolute monarch on earth is no decree till it is published. i contend that a _revocation_ or modification of an edict requires the same or equal solemnities with its enactment; the _fact_ must exist and be officially made known before it becomes obligatory--no declaration of an intention to revoke, can constitute an actual revocation. the act ought not only to be determined and public, but susceptible of authentication, and capable of being communicated to the nation and the world. this opinion, if it needs authority, is supported by the instructions of the secretary of state to our ministers at paris and london, of the th july. mr. pinkney is directed in these words--"if the british government should accede to the overture contained in the act of congress, by repealing or so modifying its edicts, as that they will cease to violate our neutral rights, you will transmit the repeal, properly authenticated, to general armstrong, and if necessary, by a special messenger, and you will hasten to transmit it also to this department--similar directions are given to general armstrong." will it for a moment be contended, that the formal _authentication_ required by the administration, could mean a jesuitical, insolent, equivocal, conditional letter, full of sound, and meaning nothing for our good? but, say gentlemen, the president received the evidence and issued his proclamation. this is true; but why has he done so, and how justified by the law under which alone he was authorized to act, is, to my mind, perfectly inexplicable; why, in the course of this arrangement with france, he has varied the ground which he first took--why dispensed with requisites at one time declared indispensable--why he advanced in exactions from great britain in proportion as he receded from demands on france, is left for himself and those who have more wisdom than myself, to determine. i trust, sir, i have a proper share of confidence in the executive, and have no disposition to detract from his merit; but he is only man, and therefore subject to the frailties man is heir to. we have as yet no such maxim among us, as that the executive is infallible--he can do no wrong. whatever may be the disposition of other gentlemen, i am as yet too free, too much of a genuine _republican_ to subscribe to such a doctrine. i said, sir, that in the course of this arrangement with france, the administration advanced in their demands on great britain and receded as to france. i argue from the documents, which accompanied the president's message at the opening of the present session of congress. the first letter in the documents from the secretary of state to mr. pinkney, of the th january, , does not contain a word on the subject of blockades--on the contrary, the orders in council are alone required to be repealed, as preparatory to a treaty with great britain; and the british government are assured of the cordial disposition "of the president to exercise any power with which he may be invested, to put an end to acts of congress which would not be resorted to but for the orders in council, and at the same time of his determination to put them in force against france, in case her decrees should not also be repealed." his letter of the th of may, which was the first after passing the act of the st of may last, that enclosed a copy of that act, is not published. on the d of may, another letter is sent enclosing a second copy of the act of congress, in which there is not to be found any requisition of a repeal of the blockade which is now made a _sine qua non_ to an arrangement with great britain. but on the d of july, after the arrival of the john adams, which brought the correspondence between our ministers at paris and london, and the agents of the british and french governments, on the subject of the repeal of their several orders and decrees; and when it was known that the british government would not abandon her system of blockade and adopt the principles contended for by france--in this letter, i say, is contained not only a demand of the repeal of the orders in council, but also of the blockading order of may, . i have already shown, from the letters before me, of the th june and july, that the restoration of the property of our citizens, confiscated by the order of bonaparte, was declared by the executive as an indispensable prerequisite to an arrangement with the french government. but the proclamation of the president has been issued without a cent of property being restored; nor is there the most distant prospect of our regaining a shilling from his iron grasp. thus have the administration changed the ground first taken, increased the demands on great britain, and abandoned what was deemed indispensable on the part of france. so conscious was the president of the just expectation of the people of this country, that provision would be made for the restoration of their property, he informs mr. armstrong on the d of november, the day the proclamation was issued, that "in issuing the proclamation it has been presumed, that the requisition on the subject of the sequestered property will have been complied with." from what this presumption arose, i am at a loss to say--the letter of the duc de cadore to general armstrong, of the th september, had been received here; we had been told there would be no compromise; the law of _reprisal_ must govern. sir, the law of reprisal, as recognized by the laws of nations, could never have authorized the seizure. reprisals can only be resorted to in case of an act of hostility committed by one nation on the property or citizens of another, and after compensation for the injury has been demanded and refused; and even in that case, the property taken is to be held only in _pledge_, till satisfaction is made by the offending nation. the moment that confiscation takes place the principle of reprisal ceases and it becomes an act of war. we had done no injury to france; we had violated neither the rights of the persons or property of her subjects--no demand of indemnity was ever made; not a complaint whispered, till nearly twelve months after the passing of the law, (and after its expiration too,) which is made the pretext for this monstrous outrage. the law of reprisal had nothing to do with the affair, and the confiscation of our property excludes the idea of restoration. i confess i was astonished, and felt humbled as an american, when i heard the language of the president of the united states, in his message to congress at the opening of the present session on this subject. instead of that high indignant tone, demanded by the honor and feelings of the nation, he, in the mildness of calm philosophy, says, "it was particularly anticipated that as a further evidence of just dispositions towards them, restoration would have been immediately made of the property" of our citizens, seized under a _misapplication of the principles of reprisals_, and a misconstruction of a law of the united states. this expectation has not been fulfilled. thus the question as to the restoration seems to be abandoned; one kind, loving word from napoleon the great, (as he has been triumphantly called in this house,) this modern alexander (without his virtues, with all his faults) disarms us of our rage, and we give millions for his embrace. mr. speaker, the chairman of the committee (mr. eppes) who reported the bill, in reply to the very able speech of a gentleman from new york (mr. emott) who addressed you in the early stage of this discussion, appeared to me rather to question the purity of the source from which they came, than to have answered the arguments of that gentleman. this mode of reasoning may answer the purposes of gentlemen, but is surely unfavorable to fair investigation; it tends to abridge the freedom of debate, and prevent that firm, decisive, and candid exposition of those measures, which we conceive may vitally affect the happiness of the people. this is a privilege and a duty which i shall ever regard and ever perform. the same gentleman (mr. eppes) and several others, have reminded us of the arrangement made with mr. erskine; and offer it as a precedent for the justification of the president's proclamation and this bill, (which are substantially one and the same thing.) i had supposed that that unfortunate arrangement would have been kept out of sight by gentlemen on the other side of the house. it was to have been expected they would carefully avoid an attempt to make one bad precedent justify another; they must have forgotten how that arrangement militates against the proclamation, and the demand which is now so positively made of a revocation by great britain of her order of blockade of may, . that arrangement, almost dictated by the administration, and which was perfectly satisfactory to us all, did not contain one syllable, not the most distant information, relative to the repeal of that order, which now appears to excite so highly the indignation of gentlemen, and has been magnified into a cause of war. the order of blockade was at that time more recent, and if so injurious as now alleged, could not have escaped the attention of the executive, and his vigilant cabinet, when they were providing for the annulment of the orders in council of january and november, . that arrangement was made without requiring a repeal of the blockade--now nothing can be done without a repeal, and thus we are to be blockaded both at home and abroad. it may be further remarked, that by the law of february, , the president was authorized to suspend the embargo as to france or great britain, on the same conditions pointed out by the act of may, . in the exercise of that power, the president instructed mr. pinkney to propose to the british government a repeal of the embargo as to that nation, and its continuation against france, if the orders in council of january and november, , should be rescinded. at that time nothing was said, no demand was made, not even a proposition offered on the subject of the blockade in question. my attention, sir, has been somewhat drawn to this part of the subject by the importance which has been given to it in the document before me, and the arguments of gentlemen of this house, particularly the gentleman from virginia, (mr. eppes,) who said much on this subject the other day, in answer to arguments which the gentleman from new york (mr. emott) did not make. he reiterated last night that his arguments were unanswered and unanswerable. i do not profess, sir, to be perfectly acquainted with the practical extent of the order of blockade of may, , nor do i know the precise quantum of injury we have sustained by it, nor am i to be understood as attempting its justification--i should be the last to concede any principle or any right to which my country has a claim. but, sir, i am compelled to believe, that an artificial importance is at this moment given to the subject, which it has not received at any other period since the adoption of that regulation by the british government. i have already shown that, in the negotiation of , and in the arrangement with mr. erskine, the question was not even made a matter of contestation; and, sir, from an examination of the executive papers, from the date of the order of the blockade, down to the present session of congress, i have not been able to discover a single paper remonstrating against the order, or insisting on its revocation, nor do i know of a single case of the condemnation of an american vessel under its operation. on the contrary, at the time of its adoption, (during the administration of mr. fox, who was believed to be as friendly disposed towards us, as any man who ever administered the affairs of the british cabinet,) this measure was spoken of by our minister at london (mr. monroe) as a relaxation favorable to neutral commerce. it may not be improper to refer to the order itself, as communicated by mr. fox to mr. monroe, on the th of may, ; after the preamble this note states "that the king, taking into consideration the new and extraordinary means resorted to by the enemy for the purpose of distressing the commerce of his subjects, has thought fit to direct that necessary measures should be taken for the blockade of the coast, rivers, and ports, from the river elbe to the port of brest, both inclusive; and the said coast, rivers, and ports, are, and must be considered, as blockaded. but his majesty is pleased to declare, that such blockade shall not extend to prevent neutral ships and vessels, laden with goods not being the property of his majesty's enemies, and not being contraband of war, from approaching the said coasts and entering into and sailing from the rivers and ports, (save and except the coast, rivers, and ports, from ostend to the river seine, already in a state of strict and rigorous blockade, and which are to be considered as continued,) provided the said ships and vessels so approaching and entering (except as aforesaid,) shall not have been laden at any port belonging to, or in possession of, his majesty's enemies, and that the said ships and vessels so sailing from the said rivers and ports, (except as aforesaid) shall not be destined to any port belonging to, or in possession of his majesty's enemies, nor have previously broken the blockade." this order, then, only excludes from those ports vessels having enemies' property on board or articles contraband of war, in both of which cases they are liable to seizure by the law of nations, at least it has been long contended for on the part of britain; it also prevents the direct carrying trade from one port to another of an enemy. if this latter extension is not recognized by the law of nations, it is generally the subject of treaty, and was provided for by our treaty with the british government, and the late convention formed by mr. monroe with the british government, but which was rejected principally because great britain required us not to submit to the berlin decree--a requisition, sir, infinitely short of what we are now to comply with, at the dictation of france--by which colonial produce was required to be relanded in the united states before it would be admitted into the ports of the continent. by this order, _bona fide_ neutral vessels, with neutral produce, sailing from our own country, never were affected. the gentleman from virginia (mr. eppes) has said this order of blockade has not a single feature of a regular blockade; in this, the gentleman is tolerably correct, and when he denounces, what in the fashionable cant of the day are called paper blockades, i join most heartily in the execration. it is true this order of may, , has scarcely a feature of a regular blockade. it was not avowed at the time to be even a constructive blockade, nor was the right contended for of blockading without an actual investing force. it does not, like ordinary blockades, attempt a complete prohibition to all trade with those ports, but only to the particular objects and specified cases which i have mentioned. the previous measures of france are declared by mr. fox to be the cause of this order. what were those measures? they were no less, as regards ourselves, than a violation of the treaty which had been solemnly entered into between this country and france; by harassing our trade, seizing and confiscating our vessels in pursuing the commerce guaranteed to us by that treaty; she had usurped authority in almost every port and city from elbe to brest, and excluded the introduction of british products and merchandise, whether belonging to american citizens or british subjects. now, sir, let me state to you the language of our minister (mr. monroe) at the time this order was issued. in his letter of the th of may, to the secretary of state, speaking of the order, he says, "the note is couched in terms of restraint, and professes to extend the blockade further than it has heretofore done, nevertheless it takes it from many ports already blockaded, indeed all east of ostend and west of the seine, except in articles contraband of war and enemy's property, which are seizable without blockade; and in like form of exception, considering every enemy as one power, it admits the trade of neutrals within the same limits to be free, in the productions of enemy's colonies, in every but the direct route between the colony and parent country. "it cannot be doubted but the note was drawn by the government in reference to the question, and if intended by the cabinet as a foundation on which mr. fox is authorized to form a treaty, and obtained by him for the purpose, it must be viewed in a very favorable light; it seems clearly to put an end to further seizures, on the principle which has heretofore been in contestation." this view of the subject, which surely is a fair one connected with the silence of the administration for four years, must put an end to the clamor so often raised against this order, which has been the alleged cause of the berlin decree, and charge against great britain, of having been the first aggressor on our neutral rights. sir, we have indeed been insulted, injured, and abused by both nations, to an extent which would justify any measures in our power, but let us not palliate the crimes of one, and magnify those of the other; and, above all, let us not whip ourselves because they will not respect us; let us not become so quixotic, as to act the part of a famous knight in the tales of chivalry, who tortured himself because his mistress would not be kind. mr. speaker, as the arrangement with mr. erskine has been often mentioned, and much relied on by the advocates of this bill, it deserves some further notice. that arrangement was the first act of the present executive, after he came into office; it was presumed to have been fairly and properly made--it was hailed as a political jubilee by all denominations of politicians--particularly those who had not contributed to the elevation of the present chief magistrate; we thought we perceived in that event the evidence of a disposition in the present executive (which we could not discover in his predecessor) to relieve this country from that system of commercial restriction, that self-destroying policy, which had made us poor indeed; we also thought a determination was manifested not to decline any advantageous accommodation with great britain, whether france said yea or nay. it will be but too well remembered that we had been groaning for two years under the pressure of non-importation, embargo, and non-intercourse--your treasury was drained, your citizens unable to pay their debts, and your courts of justice actually shut up, at least so far in many states (and among the rest the state which i have the honor in part to represent) as to suspend the effect of executions; your cities and seaports were inactive or deserted; gloom and dismay marked the features of the nation, and hope had almost bid us farewell; we fancied in this arrangement the glimmerings of returning sunshine, peace, and prosperity: with honest and upright hearts, we were willing to applaud the hand that gave it, without questioning or suspecting the manner or motives with which it was given. the delusion soon vanished; and i have no hesitation to declare, had i then known what i now know, i should have not offered such unqualified applause. mr. speaker, let us make a very strange and very false supposition, that the berlin and milan decrees were actually repealed, and did cease to have effect on the first of november. what have we gained? what advantage have we derived from it? and have we not been officially informed by the french minister in this city (general turreau) in his letter to the secretary of state, of the th december, , that our most valuable productions, particularly of the southern states, are at this moment excluded from the ports of france? as to the important articles, cotton and tobacco, he says: "their importation into france is at this moment especially prohibited, but i have reasons to believe (and i pray you meanwhile to observe, sir, they do not rest on any facts) that some modifications will be given to this absolute exclusion. these modifications will not depend on the chance of events, but will be the result of other measures, firm and pursued with perseverance, which the two governments will continue to adopt to withdraw from the monopoly and from the vexations of the common enemy a commerce loyal and necessary to france as well as the united states." in this letter we find the touchstone, the true clue to french favor--war with england. connected with this letter from turreau, is a decree of the th july, , which, in point of principle and arrogance, is not surpassed by any act in the history of bonaparte. by this decree thirty or forty american vessels may import into france, under license, cotton, fish, oil, dye-wood, salt-fish, codfish, and peltry; they must export wine, brandy, silks, linens, cloths, jewellery, household furniture, and other manufactured articles; they can only depart from charleston and new york, under the obligation of bringing with them a gazette of the day of their departure, also a certificate of the origin of the merchandise, given by the french consul, containing a sentence in cypher. the french merchants who shall cause their vessels to come, must prove that they are concerned in the fabrics of paris, rouen, and other towns. here is an attempt to extend french influence by bribing a select class of our merchants; granting favors to favorites. it is an attempt to make commercial regulations in our own ports, and to violate our constitution, by giving a preference to the ports of charleston and new york, over all the rest in the united states, which is specially denied by the constitution. in addition to all this, we have a list of duties established at the french custom-house on the th august (the very day on which twenty or thirty american vessels and cargoes were sold and the proceeds given over to bonaparte--the very memorable th august, the birthday of the celebrated letter of the duc de cadore) subjecting long staple cotton to a tariff of eighty cents per pound, short staple sixty cents, and tobacco forty cents per pound. by another decree of the th september, , potash is taxed at one dollar twenty-five cents, codfish two dollars, rice four dollars per hundred--thus are we loved, favored, and taxed. there can be no importation of american productions into france but on terms utterly inadmissible. the act of may last, in the language of the secretary of state, had for its object not merely the recognition of a "speculative," legitimate principle, but the enjoyment of a substantial benefit. the overture then presented obviously embraced the idea of commercial advantage, it included the reasonable belief, that an abrogation of the berlin and milan decrees would leave the ports of france as free for the introduction of the produce of the united states, as they were previously to the promulgation of the decrees. if, then, for the revoked decrees, municipal laws, producing the same effect have been substituted, the mode only and not the measure has undergone an alteration. if france, by her own acts, has blocked up her ports against the introduction of the products of the united states, what motive has the government in a discussion with a third power, to insist on the privilege of going to france? whence the inducement to urge the annulment of a blockade of france, when, if annulled, no american cargoes would obtain a market in any of her ports? in such a state of things, a blockade of the coast of france would be to the united states as unimportant as would the blockade of the caspian sea. this is the language of truth and common sense, language which i did not very much expect to hear from the secretary at this time; because it exposes the proclamation of the president, and condemns the present bill. but truth, like murder, will out, and it ought to strike dumb the advocates of this bill, and open their eyes to a different policy. but, sir, going on to the supposition that the french decrees are actually repealed, and cease to have effect, pursuing the principle about to be established of taking words for deeds, and form for substance, what is to become of the promise of lord wellesley to mr. pinkney, of the st of august, , when he states that he is commanded by his majesty to repeat the declaration made to this government in february, , of his majesty's desire to see the commerce of the world restored to that freedom which is necessary for its prosperity, and his readiness to abandon the system which had been forced upon him, whenever the enemy should retract the principles which had rendered it necessary; and to assure us that whenever the repeal of the french decrees shall have actually taken effect, and the commerce of the neutral nations shall have been restored to the condition in which it stood previously to the promulgation of those decrees, he will feel the highest satisfaction in relinquishing a system which the conduct of the enemy compelled him to adopt. here is a promise equally solemn, (and as there is at least as much virtue in the british government as there is in that of france,) as much to be relied on as that of the duc de cadore; and as certainly as the berlin and milan decrees were revoked, and would cease to have effect on the first of november, so certainly have we the same assurance that the orders of great britain would be rescinded. shall we then believe the one and not the other? shall we frown and look big at england, while, with timid and abject submission, we crouch at the feet of france, and quietly rivet the chains prepared for us? mr. speaker, the goddess of justice has been described as being blind, with sword in one hand, and the scale and balance in the other, but if she is invoked in this measure, she comes blind indeed, with a sword in one hand, but no balance in the other; in one hand is the emblem of war, in the other the badge of slavery. if war with england must happen, let it be done openly and for ourselves; let us not commence the attack by practising on our own citizens; and let it not be said we have been caught in the snares of bonaparte. mr. speaker, i do not oppose this bill because it professes to give some relief to those merchants whose vessels sailed before the date of the proclamation, and which may have departed from a british port, prior to the d of february, , but, sir, because i wish to rid the country of this whole consumptive system; and, if that cannot be done, i will not aid in propping up the president's proclamation, by taking from the judiciary of the country the power of deciding on its validity, which is one of the avowed objects of this bill. i had rather trust to the opinion of the judges for entire relief to our citizens, from the operation of the law of may, , than grant the partial exemption contemplated by this bill. the honorable gentleman (mr. eppes) who reported this bill, declares that its great object is to prevent questions arising in the courts, on the construction of the law of may, , and the effect of the president's proclamation. this, to my understanding, is legislating retrospectively; it is _ex post facto_; and, like the rambouillet decree, is not only prospective, but retroactive. it takes from our citizens the right of appealing to the courts of justice, and makes the fiat of the executive the supreme law--a doctrine subversive of the first principles of republicanism, and strange to be advocated by gentlemen who came into power under the name of republicans. it is in vain, mr. speaker, to seek for the justification of this measure from any thing france has done, or from the indications which she has given of her fixed course of policy. her great object is the destruction of the commerce of the world; and she wishes to make us tributary to that end, and, if possible, to embroil us in a war with england. the disposition of bonaparte towards us rests not alone on his acts of aggression, rapine, and plunder; the imprisonment of our citizens, the burning and sequestration of our property. he has heaped upon this devoted country all the epithets which malice could suggest or tyranny dictate; he has exhausted the cup of bitterness, and made us drink the dregs of humiliation; he has declared his decrees should suffer no change, and that the americans should take the positive character of allies or enemies. as long ago as the th of january, , he issued a declaration of war for us against great britain; an unconditional surrender of your rights is demanded, or an obedience to his dictates. and are we not in the act of yielding obedience? sir, the nation which pretends to dictate laws to another offers chains. with more than christian charity do we seem to forget and forgive the indignities offered to our national character; and the unkind, the severest cut of all to the present administration, contained in the letter of the duc de cadore to general armstrong, of the th of february, , in which we are told that his majesty could place no reliance on the proceedings of the united states. we are advised to tear to pieces the act of our independence; declared to be more abject than the slaves of jamaica; that we are men without honor, energy, or just political views; that we will be obliged to fight for interest, after having refused to fight for honor. our present rulers are there contrasted with the brave and generous heroes of our revolution, and they are declared to be fit for the yoke which had been thrown off by their ancestors. this letter had scarcely reached our shores, the ink was scarcely dry, it was fresh in our memories, when the letter of the th of august was received; which, like a lethean draught, threw the shade of oblivion over our insults and our wrongs; we sipped the poison as it fell, and i fear it is fast spreading through the body politic. mr. speaker, i turn with disgust from those polluted pages before me--this history of our wrongs, this tyrant's love--would to god they could be blotted from our memories; or, if remembered, let it be with abhorrence and detestation. i deprecate the course of policy, if policy it may be termed, which is now about to be forced upon us. i protest against it as a measure injurious to ourselves; weak, temporizing, and partial in its operation on foreign nations; unauthorized by the actual state of things; and calculated to hasten the period of our union with the destinies of france. sir, unless we turn from this wayward course, this highway to ruin, the time cannot be very distant when your deserted ports, your uninhabited cities, your oppressed people, and even your firesides and your altars, will only exhibit the sad signs of what they were. and i fear, sir, the period is fast approaching when it will not again be said, "that we are a people with whom the fierce spirit of liberty is stronger than among any other people on earth; whose institutions inspire them with lofty sentiments; who do not judge of an ill principle only by an actual grievance; but who anticipate the evil, and judge of the pressure of the grievance by the badness of the principle; who snuff the approach of tyranny in every tainted breeze." when mr. p. had concluded, the house adjourned to six o'clock this evening. _six o'clock, p. m._ the house was called to order, and resumed the unfinished business. a motion was made by mr. randolph to postpone the subject to friday next, and lost--ayes , noes . a motion was then made by mr. r. to postpone it until to-morrow. on this motion a debate, which from its nature caused irritation, took place, in which messrs. randolph and eppes were the principal speakers. much warmth was excited, and frequent calls to order made. the question on postponement till to-morrow was decided by yeas and nays. for postponement, ; against it, . mr. pitkin spoke more than an hour against the bill generally, and in support of the particular proposition which he was about to make. he contended that the emperor of france had not fulfilled his engagement to the united states, inasmuch as the decrees, if revoked, which he denied, had not been revoked on the day on which he had engaged to revoke them. he quoted the history of the connection of spain with france as evidence of the perfidy of bonaparte, from whom, he said, no compliance with his promises could be expected, &c. in supporting his amendment, mr. p. contended for its beneficial effects to our merchants: and it would not, he said, be more a breach of our contract with france than the first section of the bill now before the house. the one was, in fact, as much a departure from the engagement with france as the other. the following was the amendment offered by mr. pitkin: _provided_, _also_, that nothing in this act, or the act to which this is a supplement, shall be construed to affect any vessels owned wholly by a citizen or citizens of the united states, or the cargoes of any such vessels which shall have cleared out from any port in the west indies within ---- days after the d of february, . the yeas and nays on the motion were, yeas; nays. mr. macon addressed the chair on the merits of the bill at some length. he believed the president to have been justified in issuing his proclamation by the duc de cadore's letter; but as subsequent information had been received from france, the question appeared to him to resolve itself into this: was the sequestration of our vessels from the st november to the d of february a violation of our neutral rights or not? had the decrees been so modified, under present circumstances, as that they had ceased to violate our neutral commerce? he conceived not, and should therefore vote against the bill. he deprecated the course of debate, and the irritation which prevailed in the house, as tending to bring this body into disrepute, &c. mr. p. b. porter then said that, for the purpose of coming to a decision on the bill, and putting an end to a scene which was, to say the least of it, disreputable to the house, he moved for the previous question on engrossing the bill. the previous question was taken and decided in the affirmative, and the bill ordered to a third reading-- to . the bill was then read a third time. the previous question was required on its passage, and carried in the affirmative. mr. randolph twice successively moved an adjournment. motions negatived; the first to , the second to . the question on the passage of the bill was then decided in the affirmative--yeas , nays , as follows: yeas.--lemuel j. alston, willis alston, jun., william anderson, david bard, william t. barry, burwell bassett, william w. bibb, adam boyd, robert brown, william a. burwell, william butler, joseph calhoun, langdon cheves, matthew clay, james cochran, william crawford, richard cutts, joseph desha, john w. eppes, william findlay, meshack franklin, barzillai gannett, gideon gardner, thomas gholson, peterson goodwyn, james holland, jacob hufty, richard m. johnson, thomas kenan, john love, aaron lyle, samuel mckee, william mckinley, pleasant m. miller, samuel l. mitchill, john montgomery, nicholas r. moore, thomas moore, jeremiah morrow, gurdon s. mumford, thos. newbold, thos. newton, john porter, peter b. porter, john rea of pennsylvania, john rhea of tennessee, matthias richards, samuel ringgold, erastus root, ebenezer sage, john a. scudder, ebenezer seaver, adam seybert, samuel shaw, dennis smelt, john smilie, geo. smith, john smith, uri tracy, george m. troup, charles turner, jr., robert weakley, robert whitehill, and robert witherspoon. nays.--abijah bigelow, barent gardenier, richard jackson, jr., william kennedy, nathaniel macon, elisha r. potter, john randolph, richard stanford, jacob swoope, archibald van home, laban wheaton, and ezekiel whitman. the house then adjourned to meet again at one o'clock. the following is the bill as it passed this house: a bill supplementary to the act, entitled "an act concerning the commercial intercourse between the united states and great britain and france, and their dependencies, and for other purposes." _be it enacted, &c._, that no vessel, owned wholly by a citizen or citizens of the united states, which shall have departed from a british port, prior to the d day of february, , and no merchandise owned wholly by a citizen or citizens of the united states, imported in such vessel, shall be liable to seizure or forfeiture on account of any infraction or presumed infraction of the provisions of the act to which this act is a supplement. sec. . _and be it further enacted_, that, in case great britain shall so revoke or modify her edicts, as that they shall cease to violate the neutral commerce of the united states, the president of the united states shall declare the fact by proclamation; and such proclamation shall be admitted as evidence, and no other evidence shall be admitted of such revocation or modification in any suit or prosecution which may be instituted under the fourth section of the act to which this act is a supplement. and the restrictions imposed, or which may be imposed, by virtue of the said act, shall, from the date of such proclamation, cease and be discontinued. sec. . _and be it further enacted_, that, until the proclamation aforesaid shall have been issued, the several provisions of the third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, and eighteenth sections of the act, entitled "an act to interdict the commercial intercourse between the united states and great britain and france, and their dependencies, and for other purposes," shall have full force and be immediately carried into effect against britain, her colonies, and dependencies: _provided, however_, that any vessel or merchandise which may, in pursuance thereof, be seized, prior to the fact being ascertained, whether great britain shall, on or before the second day of february, one thousand eight hundred and eleven, have revoked or modified her edicts in the manner above mentioned, shall, nevertheless, be restored, on application of the parties, on their giving bond with approved sureties to the united states, in a sum equal to the value thereof, to abide the decision of the proper court of the united states thereon; and any such bond shall be considered as satisfied if great britain shall, on or before the second day of february, one thousand eight hundred and eleven, have revoked or modified her edicts in the manner above mentioned: _provided, also_, that nothing herein contained shall be construed to affect any ships or vessels, or the cargoes of ships or vessels, wholly owned by a citizen or citizens of the united states, which had cleared out for the cape of good hope, or for any port beyond the same, prior to the tenth of november, one thousand eight hundred and ten. saturday, march . _bank of the united states._ mr. p. b. porter, from the committee to whom was referred, on the twenty-fifth ultimo, the memorial of the stockholders of the bank of the united states, made the following report, which was read: "the committee to whom was referred the memorial of the stockholders of the bank of the united states, report: "that they have carefully examined the various matters set forth in the said memorial, and attentively listened to the representations of the gentlemen who have appeared in behalf of the said petitioners. the object of the memorialists is to obtain extension of their corporate powers beyond the period limited for the expiration of their charter, so as to enable them to prosecute for their debts, and to arrange, liquidate, and close the various concerns of the company. "the committee are of opinion that a law of congress, granting the powers prayed for, would facilitate the final adjustment of the affairs of the bank, although they do not think such a law indispensable to that object. but believing, as your committee do, that, in granting the original charter to the stockholders, congress transcended the legitimate powers of the constitution; the same objection now presents itself to the extension of any of their corporate capacities. "if the committee had time to go into the investigation, and to present to the house the various reasons which have conduced to this opinion, it would be more than useless to divert its attention from the important concerns of the nation, at this late period of the session, to a subject which, but a few days since, was so fully and elaborately discussed. "they therefore beg leave to introduce the following resolution: "_resolved_, that the prayer of the memorialists ought not to be granted." the house agreed to meet to-morrow, (being sunday.) the house then adjourned to six o'clock this evening. march --_ o'clock, p.m._ _adjournment._ on motion of mr. smilie, _resolved_, that the thanks of this house be presented to joseph b. varnum, in testimony of their approbation of his conduct in the discharge of the arduous and important duties assigned to him while in the chair. the speaker then made his acknowledgments to the house in the following words: _gentlemen of the house of representatives_: i acknowledge, with grateful sensibility, the aid you have afforded me in the discharge of the duties of speaker. your approbation of my conduct in the important office you have been pleased to assign me, affords me very great consolation; and permit me to assure you, gentlemen, that you have my most ardent wishes for your individual prosperity and happiness. at this moment, mr. garland, from the committee appointed for the purpose, reported that they had waited on the president and informed him that they proposed to adjourn, and had received for answer that he had no further communication to make. a message was received from the senate, and reciprocated, that they were about to adjourn; a motion was then made to adjourn, and carried. footnotes: [ ] thus terminated the existence of the first bank of the united states; but there was a fatal defect in terminating it in not providing a general currency in place of its notes, by reviving the gold currency and in not creating an independent treasury for keeping the public moneys. those who terminated the existence of the second bank avoided these errors, and thereby avoided all the evils and embarrassments which followed the termination of the first one. twelfth congress.--first session. begun at the city of washington, november , . proceedings in the senate.[ ] monday, november , . the first session of the twelfth congress commenced this day at the city of washington, conformably to the proclamation of the president of the united states, of the th of july last, and the senate assembled in their chamber. present: george clinton, vice president of the united states and president of the senate. nicholas gilman and charles cutts, from new hampshire. chauncey goodrich and samuel w. dana, from connecticut. stephen r. bradley, from vermont. john smith and obadiah german, from new york. john condit and john lambert, from new jersey. andrew gregg and michael leib, from pennsylvania. outerbridge horsey, from delaware. samuel smith and philip reed, from maryland. william b. giles, from virginia. jesse franklin, from north carolina. john gaillard and john taylor, from south carolina. william h. crawford and charles tait, from georgia. john pope, from kentucky. joseph anderson, from tennessee. thomas worthington, from ohio. george m. bibb, appointed a senator by the legislature of the state of kentucky, for the term of six years, commencing on the th day of march last; _george w. campbell_, appointed a senator by the legislature of the state of tennessee, in place of jenkin whiteside, resigned; jeremiah b. howell, appointed a senator, for the term of six years, commencing on the fourth day of march last, by the legislature of the state of rhode island and providence plantations; joseph b. varnum, appointed a senator by the legislature of the state of massachusetts, for the term of six years, commencing on the fourth day of march last; respectively produced their credentials, which were read, and the oath prescribed by law was administered to them, and they took their seats in the senate. the oath was also administered to messrs. condit, crawford, giles, gilman, and taylor, their credentials having been read and filed during the last session. _ordered_, that the secretary acquaint the house of representatives that a quorum of the senate is assembled and ready to proceed to business. a message from the house of representatives informed the senate that a quorum of the house of representatives is assembled, and have elected henry clay, esq., one of the representatives from the state of kentucky, their speaker, and are ready to proceed to business. they have appointed a committee on their part, jointly with such committee as may be appointed on the part of the senate, to wait on the president of the united states, and notify him that a quorum of the two houses is assembled and ready to receive any communications that he may be pleased to make to them. the senate concurred in the appointment of a joint committee on their part, agreeably to the resolution last mentioned; and messrs. anderson and gaillard were appointed the committee. the senate then adjourned. tuesday, november . richard brent, from the state of virginia, attended. _annual message._ the following message was received from the president of the united states: _fellow-citizens of the senate and house of representatives_: in calling you together sooner than a separation from your homes would otherwise have been required, i yielded to considerations drawn from the posture of our foreign affairs; and in fixing the present, for the time of your meeting, regard was had to the probability of further developments of the policy of the belligerent powers towards this country, which might the more unite the national councils in the measures to be pursued. at the close of the last session of congress, it was hoped that the successive confirmations of the extinction of the french decrees, so far as they violated our neutral commerce, would have induced the government of great britain to repeal its orders in council, and thereby authorize a removal of the existing obstructions to her commerce with the united states. instead of this reasonable step towards satisfaction and friendship between the two nations, the orders were, at a moment when least to have been expected, put into more rigorous execution; and it was communicated through the british envoy just arrived, that, whilst the revocation of the edicts of france, as officially made known to the british government, was denied to have taken place, it was an indispensable condition of the repeal of the british orders that commerce should be restored to a footing that would admit the productions and manufactures of great britain, when owned by neutrals, into markets shut against them by her enemy; the united states being given to understand that, in the mean time, a continuance of their non-importation act would lead to measures of retaliation. at a later date, it has indeed appeared that a communication to the british government, of fresh evidence of the repeal of the french decrees against our neutral trade, was followed by an intimation that it had been transmitted to the british plenipotentiary here, in order that it might receive full consideration in the depending discussions. this communication appears not to have been received; but the transmission of it hitherto, instead of founding on it an actual repeal of the orders, or assurances that the repeal would ensue, will not permit us to rely on any effective change in the british cabinet. to be ready to meet with cordiality satisfactory proofs of such a change, and to proceed, in the mean time, in adapting our measures to the views which have been disclosed through that minister, will best consult our whole duty. in the friendly spirit of those disclosures, indemnity and redress for other wrongs have continued to be withheld; and our coasts, and the mouths of our harbors, have again witnessed scenes not less derogatory to the dearest of our national rights, than vexatious to the regular course of our trade. among the occurrences produced by the conduct of british ships of war hovering on our coasts, was an encounter between one of them and the american frigate commanded by captain rodgers, rendered unavoidable on the part of the latter, by a fire, commenced without cause, by the former; whose commander is therefore alone chargeable with the blood unfortunately shed in maintaining the honor of the american flag. the proceedings of a court of inquiry, requested by captain rodgers, are communicated, together with the correspondence relating to the occurrence between the secretary of state and his britannic majesty's envoy. to these are added the several correspondences which have passed on the subject of the british orders in council; and to both, the correspondence relating to the floridas, in which congress will be made acquainted with the interposition which the government of great britain has thought proper to make against the proceeding of the united states. the justice and fairness which have been evinced on the part of the united states towards france, both before and since the revocation of her decrees, authorized an expectation that her government would have followed up that measure by all such others as were due to our reasonable claims, as well as dictated by its amicable professions. no proof, however, is yet given of an intention to repair the other wrongs done to the united states, and particularly to restore the great amount of american property seized and condemned under edicts which, though not affecting our neutral relations, and therefore not entering into questions between the united states and other belligerents, were, nevertheless, founded in such unjust principles that the reparation ought to have been prompt and ample. in addition to this and other demands of strict right on that nation, the united states have much reason to be dissatisfied with the rigorous and unexpected restrictions to which their trade with the french dominions has been subjected; and which, if not discontinued, will require at least corresponding restrictions on importations from france into the united states. on all those subjects, our minister plenipotentiary, lately sent to paris, has carried with him the necessary instructions; the result of which will be communicated to you, and by ascertaining the ulterior policy of the french government towards the united states, will enable you to adapt to it that of the united states towards france. our other foreign relations remain without unfavorable changes. with russia they are on the best footing of friendship. the ports of sweden have afforded proofs of friendly dispositions towards our commerce in the councils of that nation also. and the information from our special minister to denmark, shows that the mission had been attended with valuable effects to our citizens, whose property had been so extensively violated and endangered by cruisers under the danish flag. under the ominous indications which commanded attention, it became a duty to exert the means committed to the executive department in providing for the general security. the works of defence on our maritime frontier have accordingly been prosecuted with an activity leaving little to be added for the completion of the most important ones; and, as particularly suited for co-operation in emergencies, a portion of the gunboats have, in particular harbors, been ordered into use. the ships of war before in commission, with the addition of a frigate, have been chiefly employed as a cruising guard to the rights of our coast. and such a disposition has been made of our land forces, as was thought to promise the services most appropriate and important. in this disposition is included a force, consisting of regulars and militia, embodied in the indiana territory, and marched towards our northwestern frontier. this measure was made requisite by the several murders and depredations committed by indians, but more especially by the menacing preparations and aspect of a combination of them on the wabash, under the influence and direction of a fanatic of the shawanese tribe. with these exceptions, the indian tribes retain their peaceable dispositions towards us, and their usual pursuits. i must now add that the period is arrived which claims from the legislative guardians of the national rights a system of more ample provisions for maintaining them. notwithstanding the scrupulous justice, the protracted moderation, and the multiplied efforts, on the part of the united states, to substitute for the accumulating dangers to the peace of the two countries, all the mutual advantages of re-established friendship and confidence, we have seen that the british cabinet perseveres, not only in withholding a remedy for other wrongs, so long and so loudly calling for it, but in the execution, brought home to the threshold of our territory, of measures which, under existing circumstances, have the character, as well as the effect, of war on our lawful commerce. with this evidence of hostile inflexibility, in trampling on rights which no independent nation can relinquish, congress will feel the duty of putting the united states into an armor and an attitude demanded by the crisis, and corresponding with the national spirit and expectations. i recommend, accordingly, that adequate provision be made for filling the ranks and prolonging the enlistments of the regular troops; for an auxiliary force, to be engaged for a more limited term; for the acceptance of volunteer corps, whose patriotic ardor may court a participation in urgent services; for detachments, as they may be wanted, of other portions of the militia; and for such a preparation of the great body as will proportion its usefulness to its intrinsic capacities. nor can the occasion fail to remind you of the importance of those military seminaries which, in every event, will form a valuable and frugal part of our military establishment. the manufacture of cannon and small arms has proceeded with due success; and the stock and resources of all the necessary munitions are adequate to emergencies. it will not be inexpedient, however, for congress to authorize an enlargement of them. your attention will, of course, be drawn to such provisions on the subject of our naval force as may be required for the services to which it may be best adapted. i submit to congress the seasonableness also of an authority to augment the stock of such materials as are imperishable in their nature, or may not at once be attainable. in contemplating the scenes which distinguish this momentous epoch, and estimating their claims to our attention, it is impossible to overlook those developing themselves among the great communities which occupy the southern portion of our hemisphere, and extend into our neighborhood. an enlarged philanthropy, and an enlightened forecast, concur in imposing on the national councils an obligation to take a deep interest in their destinies, to cherish reciprocal sentiments of good will, to regard the progress of events, and not to be unprepared for whatever order of things may be ultimately established. under another aspect of our situation, the early attention of congress will be due to the expediency of further guards against evasions and infractions of our commercial laws. the practice of smuggling, which is odious every where, and particularly criminal in free governments, where the laws being made by all for the good of all, a fraud is committed on every individual as well as on the state, attains its utmost guilt when it blends, with a pursuit of ignominious gain, a treacherous subserviency in the transgressors to a foreign policy, adverse to that of their own country. it is then that the virtuous indignation of the public should be enabled to manifest itself through the regular animadversions of the most competent laws. to secure greater respect to our mercantile flag, and to the honest interests which it covers, it is expedient also that it be made punishable in our citizens to accept licenses from foreign governments for a trade unlawfully interdicted by them to other american citizens; or to trade under false colors or papers of any sort. a prohibition is equally called for against the acceptance, by our citizens, of special licenses to be used in a trade with the united states; and against the admission into particular ports of the united states of vessels from foreign countries authorized to trade with particular ports only. although other subjects will press more immediately on your deliberations, a portion of them cannot but be well bestowed on the just and sound policy of securing to our manufactures the success they have attained, and are still attaining, in some degree, under the impulse of causes not permanent; and to our navigation the fair extent of which it is at present abridged by the unequal regulations of foreign governments. besides the reasonableness of saving our manufacturers from sacrifices which a change of circumstances might bring on them, the national interest requires that, with respect to such articles at least as belong to our defence and our primary wants, we should not be left in unnecessary dependence on external supplies. and whilst foreign governments adhere to the existing discriminations in their ports against our navigation, and an equality or lesser discrimination is enjoyed by their navigation in our ports, the effect cannot be mistaken, because it has been seriously felt by our shipping interests; and in proportion as this takes place, the advantages of an independent conveyance of our products to foreign markets, and of a growing body of mariners, trained by their occupation for the service of their country in times of danger, must be diminished. the receipts into the treasury during the year ending on the thirtieth of september last, have exceeded thirteen millions and a half of dollars, and have enabled us to defray the current expenses, including the interest on the public debt, and to reimburse more than five millions of dollars of the principal, without recurring to the loan authorized by the act of the last session. the temporary loan obtained in the latter end of the year one thousand eight hundred and ten, has also been reimbursed, and is not included in that amount. the decrease of revenue arising from the situation of our commerce and the extraordinary expenses which have and may become necessary, must be taken into view, in making commensurate provisions for the ensuing year. and i recommend to your consideration the propriety of insuring a sufficiency of annual revenue, at least to defray the ordinary expenses of government, and to pay the interest on the public debt, including that on new loans which may be authorized. i cannot close this communication without expressing my deep sense of the crisis in which you are assembled, my confidence in a wise and honorable result to your deliberations, and assurances of the faithful zeal with which my co-operating duties will be discharged; invoking, at the same time, the blessing of heaven on our beloved country, and on all the means that may be employed in vindicating its rights and advancing its welfare. james madison. washington, _november , _. wednesday, november . james lloyd, from the state of massachusetts, took his seat in the senate. friday, november . on motion, by mr. smith, of maryland, _resolved_, that mountjoy bayly, doorkeeper and sergeant-at-arms to the senate, be, and he is hereby, authorized to employ one assistant and two horses, for the purpose of performing such services as are usually required by the doorkeeper to the senate, and that the sum of twenty-eight dollars be allowed him weekly for that purpose, to commence with, and remain during the session and for twenty days after. monday, november . james turner, appointed a senator by the legislature of the state of north carolina, for the term of six years, commencing on the th day of march last, produced his credentials; which were read, and the oath prescribed by law was administered to him, and he took his seat in the senate. tuesday, november . alexander campbell, from the state of ohio, took his seat in the senate. thursday, november . _reparation for the attack on the frigate chesapeake._ the following message was received from the president of the united states: _to the senate and house of representatives of the united states_: i communicate to congress copies of a correspondence between the envoy extraordinary and minister plenipotentiary of great britain and the secretary of state, relative to the aggressions committed by a british ship of war on the united states frigate chesapeake, by which it will be seen that that subject of difference between the two countries is terminated by an offer of reparation, which has been acceded to. james madison. washington, _nov. , _. the message and papers therein referred to were read, and ordered to lie on the table. friday, november . jonathan robinson, from the state of vermont, took his seat in the senate. monday, november . william hunter, appointed a senator by the legislature of the state of rhode island and providence plantations, in place of christopher grant champlin, resigned, produced his credentials, was qualified, and took his seat in the senate. friday, november . the oath prescribed by law was administered to mr. bayard, his credentials having been read and filed during the last session. thursday, december . _battle of tippecanoe._ the following message was received from the president of the united states: _to the senate and house of representatives of the united states_: i lay before congress two letters received from governor harrison, of the indiana territory, reporting the particulars and the issue of the expedition under his command, of which notice was taken in my communication of november th. while it is deeply lamented that so many valuable lives have been lost in the action which took place on the th ultimo, congress will see, with satisfaction, the dauntless spirit and fortitude victoriously displayed by every description of the troops engaged, as well as the collected firmness which distinguished their commander, on an occasion requiring the utmost exertions of valor and discipline. it may reasonably be expected that the good effects of this critical defeat and dispersion of a combination of savages, which appears to have been spreading to a greater extent, will be experienced not only in a cessation of the murders and depredations committed on our frontier, but in the prevention of any hostile incursions otherwise to have been apprehended. the families of those brave and patriotic citizens who have fallen in this severe conflict, will doubtless engage the favorable attention of congress. james madison. washington, _dec. , _. the message and letters referred to were read, and ordered to lie on the table. friday, december . mr. gilman, from the committee, reported the bill to raise, for a limited time, an additional military force, correctly engrossed; and the bill was read the third time, and the blanks filled. on the question, shall this bill pass? it was determined in the affirmative--yeas , nays , as follows: yeas.--messrs. anderson, bibb, bradley, campbell of ohio, campbell of tennessee, condit, crawford, cutts, franklin, gaillard, german, gilman, gregg, horsey, howell, leib, lloyd, pope, reed, robinson, smith of new york, tait, taylor, turner, varnum, and worthington. nays.--messrs. dana, goodrich, hunter, and lambert. _rangers for the frontier._ the senate resumed, as in committee of the whole, the bill authorizing the president of the united states to raise certain companies of spies or rangers for the protection of the frontier of the united states; and the bill was amended; and the president reported it to the house accordingly. on the question, shall this bill be engrossed and read a third time as amended? it was determined in the affirmative. tuesday, december . _hudson river and lake ontario canal._ the following message was received from the president of the united states: _to the senate and house of representatives of the united states_: i communicate to congress copies of an act of the legislature of new york, relating to a canal from the great lakes to hudson's river. in making the communication, i consult the respect due to that state in whose behalf the commissioners appointed by the act have placed it in my hands for the purpose. the utility of canal navigation is universally admitted. it is not less certain, that scarcely any country offers more extensive opportunities for that branch of improvements than the united states; and none, perhaps, inducements equally persuasive to make the most of them. the particular undertaking contemplated by the state of new york, which marks an honorable spirit of enterprise, and comprises objects of national as well as more limited importance, will recall the attention of congress to the signal advantages to be derived to the united states from a general system of internal communication and conveyance; and suggest to their consideration whatever steps may be proper, on their part, towards its introduction and accomplishment. as some of those advantages have an intimate connection with arrangements and exertions for the general security, it is at a period calling for these that the merits of such a system will be seen in the strongest lights. james madison. washington, _december , _. the message and documents therein referred to were read; and referred to the committee last mentioned, to consider and report thereon. friday, december . the following message was received from the president of the united states: _to the senate and house of representatives of the united states_: i lay before congress copies of resolutions entered into by the legislature of pennsylvania, which have been transmitted to me, with that view, by the governor of that state, in pursuance of one of the said resolutions. james madison. washington, _december , _. _oliver evans' claim for different applications of steam power._ mr. leib presented the memorial of oliver evans, stating that the memorialist verily believes himself to be the original proposer of steam-boats and steam-wagons in the united states, (doctor franklin only excepted;) and that he conceives his patent, dated february , , secured to him the right to use his engine for boats, mills, and land carriages, and praying to be left in full possession of those rights, for reasons stated at large in the memorial; which was read, and ordered to lie on the table. monday, december . _burning of the richmond, va., theatre._ mr. bradley submitted the following motion for consideration: _resolved_, that the members of this house will wear crape on the left arm for one month, in testimony of the national respect and sorrow for the unfortunate persons who perished in the city of richmond, in virginia, on the night of the th of the present month. tuesday, december . mr. bradley called up the motion made yesterday on the subject; and, on his motion, it was amended and agreed to as follows: _resolved_, that the members of this house will wear crape on the left arm for one month, in testimony of the condolence and sorrow of the senate for the calamitous event by which the chief magistrate of the state of virginia, and so many of her citizens, perished by fire, in the city of richmond, on the night of the th of the present month. thursday, january , . _hostile policy of great britain._ the following message was received from the president of the united states: _to the senate and house of representatives of the united states_: i communicate to congress a letter from the envoy extraordinary and minister plenipotentiary of great britain to the secretary of state, with the answer of the latter. the continued evidence afforded in this correspondence, of the hostile policy of the british government against our national rights, strengthens the considerations recommending and urging the preparation of adequate means for maintaining them. james madison. washington, _january , _. the message and documents enclosed were read, and referred to the committee to whom was referred, on the th of november last, so much of the message of the president of the united states as concerns the relations between the united states and france and great britain, to consider and report thereon; and five hundred copies thereof ordered to be printed for the use of the senate. friday, january . _incorporation of a mining company in upper louisiana._ mr. bradley, from the committee appointed on the petition of moses austin and john r. jones, reported a bill to incorporate moses austin, john rice jones, henry austin, and others, into a company, by the name of the louisiana lead company; and the bill was read, and passed to the second reading. wednesday, january . the bill establishing a land office was read the second time. _additional military force._ the senate resumed, as in committee of the whole, the consideration of the bill, entitled "an act authorizing the president of the united states to accept and organize certain volunteer military corps," together with the amendments reported thereto by the select committee. mr. giles rose and opposed at length the bill as it came from the house, reserving to himself the privilege of acting on the proposed amendment according to the result of further reflections. he believed the bill would be productive of no practical efficacy. it proposed a force which could not be raised; and if raised, from the short period of its service, in the event of serious hostilities, would be utterly incompetent to effect the objects of those hostilities. the bill would be inoperative, because, in the states of massachusetts and vermont, (and he presumed in other states,) no power or provision existed by which these volunteers could be commissioned, so as to perform the contemplated service; and if the government were deprived of the volunteers in massachusetts and vermont, he did not know where they could obtain volunteers for the object which he believed all branches of the government had in view. he presumed that the system of volunteers was the favorite system of the government; and this he inferred from their having recommended to the other house the raising of ten thousand regulars only, and from the message of the president, sent in after both houses had passed the bill for raising twenty-five thousand regulars, and communicating the correspondence between mr. foster and mr. monroe, as a ground for urging congress to persevere in the preparations they were engaged in making. the president must, therefore, have deemed a volunteer force essential for the contemplated service. and here he observed he thought, if his correspondence with the british envoy, which afforded evidence of "continued hostility" towards us, furnished matter of sufficient importance to press upon congress the utility of hastening their measures of preparation, that the other business of the department of state might have been allowed to repose long enough for a reply to have been made to mr. foster, before nearly a month had elapsed after the date of his letter. he did not advert to this circumstance from any want of respect to this government: he should always treat them with the highest respect. he should prefer the reduction of the number of the volunteers to twenty-five thousand, rather than the retention of the fifty thousand, because it would increase the momentum of actual force, and decrease the expenses, about which so much has been said. surely, he said, he did not mean that it would not increase the momentum of force proposed by the other house, but that proposed by the executive. the executive had asked for ten thousand regulars, and fifty thousand volunteers--in all, sixty thousand men. the other house had agreed to give him eighty-five thousand. the proposed amendment would, therefore, bring the quantum of force down nearly to the executive requisition. but the bill proposed a force which would be utterly inefficient, as all other volunteer bills had been. the returns under the thirty thousand volunteer law, passed two or three years ago, were so few, that the secretary of war did not register them. he asked, how efficient could that species of force be, of which the chief magistrate did not think it worth while to have a record kept? it was only a formidable display of armies on paper--a tender of services--which only produced very handsome replies from the president. he did not censure the secretary of war or the president; very far from it; the defect had been in the law. he begged gentlemen to look seriously at the subject. if a war should ensue, it must be a serious one. the responsibility attached to congress of placing an adequate force in the hands of the president for the war. but if they passed a law which would give the president only a nominal force, totally incompetent to effect any desirable object, he, for one, should be unwilling to take any share of responsibility on himself. thursday, february . _increase of the navy._ the senate resumed, as in committee of the whole, the consideration of the bill entitled "an act concerning the naval establishment," together with the amendments reported thereto by the select committee. mr. lloyd.--mr. president, the amendments proposed by the committee to whom this bill has been referred, having been gone through with, i now beg leave to offer a new one, by an additional section to the following effect: "_be it further enacted_, that the president of the united states be, and he hereby is, authorized to cause to be built as speedily as may be, on the most approved model, ---- frigates, not exceeding thirty-six guns each; and that a sum not exceeding ---- dollars be, and the same is hereby appropriated for building the said frigates, out of any moneys in the treasury not otherwise appropriated." it is my intention, sir, to move for twenty new frigates; but the number i have left blank in order, should the senate be favorably disposed to an increase of the navy, and disagree with me as to the degree of that increase, they might regulate the number at their pleasure. sir, i have been induced to offer this amendment from an impulse of duty towards my more immediate constituents, and also from a sense of the obligation imposed upon me, however feebly i may be able to respond to it, in the honorable station in which i am placed, to endeavor to the extent of my ability to support the dignity, protect the rights, and advance the best interests of the united states. sir, i trust the amendment under consideration, if adopted, would have a relation, and a favorable relation, to all these objects. if it be not the determination of the government to engage in an open, actual, efficient war; to place the nation in such a complete state of preparation as to avert war, from our state of readiness to meet it; then the measures of the present session, those of filling up the existing military establishments, and thereby adding to it between six and seven thousand men, that of enlisting a standing army of twenty-five thousand men to serve for five years, unless sooner discharged--of providing for the employment of fifty thousand volunteers, and of holding in readiness one hundred thousand of the militia, would be not only inexcusable, but nearly treasonable; as they would in such case, without any adequate object, impose severe and heavy burdens upon the people of the united states, from which years of the highest degree of prosperity would not relieve them. but, sir, i am bound to believe, that unless redress be obtained, it is the determination of the government of the united states to enter into an actual, vigorous, real war, or at any rate to put the nation into a perfect state of readiness to commence it, should it be necessary; and in either of these cases, an efficient naval force is as indispensable, nay much more indispensable, than a land force. in the year , when great britain depredated upon your commerce, you had a man at the head of your government who fought no battles with paper resolutions, nor attempted to wage war with commercial restrictions, although they were then pressed upon him. he caused it to be distinctly and with firmness made known to great britain, that if she did not both cease to violate our rights, and make us reparation for the wrongs we had sustained--that young and feeble as we then were, just in the gristle, and stepping from the cradle of infancy, we would try the tug of war with her. what was the consequence? her depredations were stopped--we made a treaty with her, under which we enjoyed a high degree of prosperity. our claims were fairly heard, equitably adjudged, and the awards were honorably and punctually paid to the sufferers. in this instance you did something for commerce. next came the war with tripoli--the barbary states preyed upon our commerce--you determined to resist, and despatched a small squadron to the mediterranean: this ought to have been considered as the germ of your future maritime greatness: the good conduct and bravery of that squadron, and the self-immolation of some of its officers, spread the renown of your naval prowess to all quarters of the civilized globe. what did you in this instance? at the moment when victory had perched upon your standard--when you might have exhibited the interesting spectacle of the infant government of the united states holding in subjugation one of the powers of barbary, to whom all europe had been subservient--at this moment when conquest was completely within your grasp--civil agency stepped in--the laurel was torn from the brow of as gallant a chieftain as ever graced the plains of palestine, and we ignominiously consented to pay a tribute, where we might have imposed one. after this you had the berlin decree, the orders in council, the milan decree, the rambouillet decree, the depredations of spain, the robberies even of the renegado black chief of st. domingo, and the unprovoked and still continued plunder of denmark, a nation of pirates from their origin. what cause of complaint has denmark, or ever had denmark, against us? her most fond and speculative maritime pretensions we have willingly espoused, and yet she continues daily to capture and condemn our vessels and cargoes, and contemptuously tells us that the government of the united states is too wise to go to war for a few merchant ships. and this we bear from a people as inferior to the united states in all the attributes of national power or greatness, as i am inferior to hercules. yes, sir, commerce has been abandoned, else why prohibit your merchants from bringing the property, to a large amount, which they have fairly purchased and paid for, into the ports of our country, else why, by this exclusion, perform the double operation of adding to the resources of the enemy you are going to war with and impoverishing your own citizens. yes, sir, commerce has been abandoned, "deserted in her utmost need by those her former bounty fed." yes, sir, she has been abandoned. she has been left as a wreck upon a strand, or as a derelict upon the waters of the ocean, to be burnt, sunk, or plundered, by any great or puny assailant who could man an oar or load a swivel for her annoyance. what was the leading object of the adoption of the federal constitution in the northern parts of the union? most emphatically, it was for the protection of commerce. what was the situation of some branches of our commerce then? and what is it now? look at the statement which was laid upon our tables about a fortnight past, and taken from the returns of the treasury. what effect has it had upon our fisheries, which were so nobly and successfully contended for by the american commissioners who settled the treaty of ; which for a time suspended that treaty; and which, both the duplicity and intrigue of france and the interest of england strove to deprive us of--of our fisheries, which were then considered, and still ought to be considered, as a main sinew of our strength, and a nursery for our seamen? monday, march . _increase of the navy._ mr. crawford.--the honorable gentleman from massachusetts (mr. lloyd) thinks that nothing has been done by the government for commerce, whilst commerce has done every thing for the nation; that commerce has paid into the public treasury $ , , . if it is contended that this sum has been paid exclusively by commerce, nothing can be more incorrect. the money collected from imposts and duties is paid by the consumer of merchandise upon which the duties are imposed. it is collected immediately from the merchant, and ultimately from the nation. the only money paid into the treasury which can justly be placed to the exclusive credit of commerce, is the sum retained by the government upon debentures, which is only - ths of one per cent. upon goods paying a duty of twenty per cent. ad valorem, and has never amounted to $ , in any one year. the export of foreign productions from the united states in the year , exceeded $ , , , and the sum paid into the treasury that year on account of drawbacks was about $ , , which is the greatest amount received from that source of revenue since the organization of the government. the duty upon tonnage, like the duty imposed on merchandise, is paid by the consumer or grower of the cargoes transported by the ship-holders, of whom this duty is immediately collected. the ultimate payment of this duty by the grower or consumer will depend upon the relative demand for, and supply of the articles in the market to which they are exported. if the demand for the article is greater than the quantity in the market, it is paid by the consumer; if the supply exceeds the demand, it is paid by the grower, in the form of a reduction of the price of the article equal to the duty imposed. who are the most interested in commerce, the growers of the articles, the exchange and transportation of which constitute commerce, or the factors and freighters employed in the exchange and transportation of those articles? can any man doubt for one moment that the growers, the rightful owners of the articles to be exchanged, are more deeply interested in commerce than the merchant and ship-holder, who only make a profit from the sale and transportation of the articles exchanged? if the profit they derive from commerce should be so enormous as to exceed the original value of those articles in the hands of the growers, still it can be demonstrated that the interest of the latter is more vitally affected by a prosperous or adverse state of commerce, than that of the merchant or ship-holder. the merchant will be regulated in the price which he gives to the grower, by the state of the market and the price of transportation to the market. let the price be what it may in foreign markets, the merchant is regulated by it, and can only be affected by sudden changes in those markets which may be prejudicial or advantageous to him. it is a matter of small moment to him whether the articles in which he deals bring a high or low price in the market to which they are sent, if that price is not variable, because he will regulate the price he gives for them by the price which he can obtain. but the price which those articles will bring in the market to which they are sent, is all-important to the grower, because it will regulate the price which he is to receive for them beyond the power of his control. every circumstance which tends to destroy competition and reduce the number of markets to which our produce is sent, vitally affects the interest of the grower. the planter, the farmer, is, therefore, more deeply interested in the prosperity of that commerce which finds a market for the annual surplus productions of his industry, than the merchant or ship-holder. this direct commerce is indispensable to the internal growth and improvement of the country, and to the comfort and happiness of the people, and more so to the people of the southern and western states than any other part of the united states. sir, we are not so grossly ignorant as to mistake our interest in this matter. we know that, without commerce, without a market for the surplus productions of our labor, we should be deprived of many of those articles which long habit has made necessary to our ease and comfort. if, then, we are not grossly ignorant of our true interest, nothing can be more unfounded than the accusation of the gentleman from new york, (mr. german.) the charge must be the result of ignorance or prejudice. mr. c. said he would not follow the example of that gentleman by saying, "perhaps this prejudice might be an honest prejudice." no, he would not insult the feelings of that gentleman; he would not question his veracity or integrity by stating hypothetically, "that perhaps his opinions were honest." whilst he repelled this unfounded charge in the manner which its nature imperiously demanded, he had no hesitation in admitting that the opinions of that gentleman, whether the result of prejudice or of ignorance, were strictly honest. mr. c. said there was no man in the nation more friendly to that commerce which he had described than he was, and that no part of the nation cherished it with more ardor than that which he in part had the honor to represent on this floor. but, sir, there is a commerce which has been prosecuted to a very great extent by the commercial capitalists of the united states, for the prosperity of which the agricultural part of the nation do not feel the same solicitude. in the year , the united states exported upwards of $ , , of foreign productions. this commerce has no connection with or dependence upon the annual surplus productions of the country, which is the only commerce that essentially promotes domestic industry and multiplies the domestic comforts of the great mass of the people. this commerce, which is the legitimate offspring of war, and expires with the first dawning of peace, is prosecuted principally by our commercial cities to the east and north of the potomac. the landholders, the country people, the great mass of agriculturists in the united states, never had, and never can have any direct interest in it. the farmer of the eastern and middle states, and the planter of the southern and western states, stand in the same relation to this commerce. whether it be prosperous or adverse, is a matter of small concern to them, and nothing but an effort of pure, disinterested patriotism could induce them to jeopardize the peace and happiness of the nation, and stake the prosperity of the direct commerce of the country, for the protection of this mushroom commerce. the use proposed to be made of these frigates, if built, certainly meets my approbation. the idea of protecting our commerce by a naval force, which has been pressed with so much vehemence by some of our navy gentlemen, is worse than visionary. a navy can injure commerce, but cannot afford it protection, unless it annihilates the naval force of the adverse nation. unless, therefore, we have the means of creating and supporting a naval force able to contend successfully with the british navy for the empire of the seas, we must abandon all idea of protecting our commerce against that nation. great britain, with her thousand ships of war, is unable to protect her commerce even in sight of her own coasts. according to my understanding of the views of the honorable gentlemen, these thirty frigates are to be employed in destroying the commerce of the enemy, and not in fighting her public armed vessels. they are in fact to be national privateers. in this point of view, the proposition to cashier the officer who should strike the american flag seems to be at war with the nature of their employment. they are to direct their efforts to the destruction of merchant vessels, and to avoid collision with the ships of war. it is to be apprehended that men, whose duty it is to avoid serious conflicts with the enemy, will grow timid from habit, and will resist but feebly when inevitably forced into them. the character of the naval officers of the united states makes a regulation of this kind wholly unnecessary. their enterprise, their courage, and intrepidity, are too well established to require a regulation of such severity. as then the gentleman does not intend to dispute the sovereignty even of our own seas with our expected enemy with this naval force, but intends to employ it in the destruction of merchant vessels, an increase of that force appears to me to be wholly unnecessary and impolitic. individual enterprise, directed by individual interest, will more effectually destroy the commerce of the enemy, than any number of frigates in the power of this government to build and employ. the baltimore _federal republican_ states that a french privateer in the atlantic ocean has captured about thirty merchant vessels, and that the impression made by this single privateer was so serious that thirteen vessels, several of which were frigates, were employed in cruising for her. the truth of this statement may be relied on, because that paper is not in the habit of exaggerating french successes, or of aggravating british sufferings. but it is said that, although our privateers were successful at the commencement of the revolutionary war, before the conclusion of that contest they were entirely destroyed. admitting the fact to be true, it does not necessarily follow that such will be the result of the war now in contemplation. after the first years of that contest, the british forces were in possession of the principal ports and harbors of the united states, which made it extremely hazardous for our privateers to approach our own coasts, or enter our own harbors. it is expected that our situation will be very different in the event of war at this time. instead of possessing the principal ports of the united states, we expect to expel them from the whole of their continental possessions in our neighborhood. if this should be the result of the war, their means of annoying our commerce, and of destroying our privateers, will be greatly diminished, and their power of protecting their commerce from the depredations of our privateers will suffer an equal diminution. monday, march . _british intrigues to dismember the union._ the following message was received from the president of the united states: _to the senate and house of representatives of the united states_: i lay before congress copies of certain documents which remain in the department of state. they prove that, at a recent period, whilst the united states, notwithstanding the wrongs sustained by them, ceased not to observe the laws of peace and neutrality towards great britain, and in the midst of amicable professions and negotiations on the part of the british government, through its public minister here, a secret agent of that government was employed in certain states, more especially at the seat of government in massachusetts, in fomenting disaffection to the constituted authorities of the nation, and in intrigues with the disaffected, for the purpose of bringing about resistance to the laws, and eventually, in concert with a british force, of destroying the union, and forming the eastern part thereof into a political connection with great britain. in addition to the effect which the discovery of such a procedure ought to have on the public councils, it will not fail to render more dear to the hearts of all good citizens that happy union of these states, which, under divine providence, is the guaranty of their liberties, their safety, their tranquillity, and their prosperity. james madison. march , . the message and documents therein referred to were read, and one thousand copies of the message and documents ordered to be printed for the use of the senate; and on motion of mr. campbell of tennessee, a committee was appointed to examine the documents above referred to, and designate such as may be necessary to be printed. messrs. campbell of tennessee, brent, and bayard, were appointed the committee. mr. lloyd submitted the following motion for consideration: _resolved_, that the secretary of state be directed to lay before the senate the names of any and all persons in the united states, and especially in the state of massachusetts, who have in any way or manner whatever entered into, or most remotely countenanced, the project or the views, for the execution or attainment of which john henry was, in the year , employed by sir james craig, then governor general of the british provinces in north america, and which have this day been communicated to the senate of the united states. friday, march . _answer to mr. lloyd's inquiry._ the following message was received from the president of the united states: _to the senate of the united states_: i transmit to the senate a report of the secretary of state, complying with their resolution of the th instant. james madison. department of state, _march_ , . the secretary of state, to whom was referred the resolution of the senate of the th instant, has the honor to report, that this department is not in possession of any names of persons in the united states, who have, in any way or manner whatever, entered into or countenanced the project or the views, for the execution or attainment of which, john henry was, in the year , employed by sir james craig; the said john henry having named no persons or person as being concerned in the said project or views referred to in the documents laid before congress on the th instant. which is respectfully submitted. james monroe. the message and report were read, and one thousand copies thereof ordered to be printed for the use of the senate. wednesday, march . _incorporation of a mining company in upper louisiana._ the senate resumed, as in committee of the whole, the consideration of the bill to incorporate moses austin, john rice jones, henry austin, and others, into a company, by the name of the louisiana lead company; and the bill having been further amended, the president reported it to the house accordingly. on the question, shall this bill be engrossed and read a third time as amended? it was determined in the affirmative. tuesday, march . in the absence of the vice president, on motion of mr. lloyd, the senate proceeded to the choice of a president _pro tempore_, as the constitution provides, and william h. crawford was elected. thursday, march . _incorporation of lead mine company._ the engrossed bill to incorporate moses austin, john rice jones, henry austin, and others, into a company, by the name of the louisiana lead company, was read the third time. on the question, shall this bill pass? it was determined in the affirmative--yeas , nays , as follows: yeas.--messrs. anderson, bradley, condit, crawford, dana, german, goodrich, gregg, howell, hunter, smith of new york, tait, taylor, and worthington. nays.--messrs. bayard, franklin, giles, horsey, lambert, leib, lloyd, reed, smith of maryland, turner, and varnum. so it was _resolved_, that this bill pass, and that the title thereof be, "an act to incorporate moses austin, john rice jones, henry austin, and others, into a company, by the name of the louisiana lead company." wednesday, april . _erection of the territory of orleans into a state._ the amendments to the bill, entitled "an act for the admission of the state of louisiana into the union, and to extend the laws of the united states to the said state," having been reported by the committee correctly engrossed, the bill was read a third time as amended, and, by unanimous consent, was further amended, by striking out, in the ninth section and second line, the word "next," and inserting the words "one thousand eight hundred and twelve." _resolved_, that this bill pass with amendments. the bill giving further time for registering claims to land in the eastern district of the territory of orleans having been reported by the committee correctly engrossed, was read a third time, and passed. the senate resumed, as in committee of the whole, the consideration of the bill to enlarge the limits of the state of louisiana; and, no amendment having been offered, on the question, shall this bill be engrossed and read a third time? it was determined in the affirmative--yeas , nays , as follows: yeas.--messrs. anderson, bayard, bibb, campbell of tennessee, condit, crawford, cutts, gaillard, giles, gregg, horsey, howell, leib, pope, smith of maryland, smith of new york, tait, taylor, turner, varnum, and worthington. nays.--messrs. bradley, franklin, german, gilman, goodrich, lambert, lloyd, and reed. _temporary embargo._ the following confidential message was received from the president of the united states: _to the senate and house of representatives of the united states_: considering it as expedient, under existing circumstances and prospects, that a general embargo be laid on all vessels now in port, or hereafter arriving, for the period of sixty days, i recommend the immediate passage of a law to that effect. james madison. april , . the message was read; and on motion, by mr. bayard, that the injunction of secrecy be taken off respecting the message last read, it was determined in the negative--yeas , nays , as follows: yeas.--messrs. bayard, dana, german, gilman, goodrich, gregg, horsey, hunter, lambert, lloyd, and reed. nays.--messrs. anderson, bibb, bradley, campbell of tennessee, condit, crawford, cutts, franklin, gaillard, giles, howell, leib, pope, robinson, smith of maryland, smith of new york, tait, taylor, turner, varnum, and worthington. _resolved_, that the message be referred to a select committee, to consist of five members, to consider and report thereon by bill or otherwise. _ordered_, that messrs. campbell of tennessee, taylor, german, pope, and bayard, be the committee. friday, april . _temporary embargo._ the amendments to the bill, entitled "an act laying an embargo on all ships and vessels in the ports and harbors of the united states for a limited time," having been reported by the committee correctly engrossed, the bill was read the third time. on motion, by mr. leib, it was agreed to fill the blank with the word "ninety." on the question, shall this bill pass as amended? it was determined in the affirmative--yeas , nays , as follows: yeas.--messrs. anderson, bibb, brent, campbell of tennessee, condit, crawford, cutts, franklin, gaillard, gregg, howell, leib, pope, robinson, smith of new york, tait, taylor, turner, varnum, and worthington. nays.--messrs. bayard, bradley, dana, german, giles, gilman, goodrich, horsey, hunter, lambert, lloyd, reed, and smith of maryland. saturday, april . on motion, by mr. campbell, of tennessee, the galleries were cleared, and the doors of the senate chamber closed. a message from the house of representatives, by their committee, messrs. calhoun and williams--mr. calhoun, chairman: _mr. president_: the house of representatives concur in the amendment of the senate to the bill, entitled "an act laying an embargo on all ships and vessels in the ports and harbors of the united states, for a limited time." friday, april . _executive veto.--returned bill._ a message from the house of representatives informed the senate that the bill which passed the two houses of congress at the present session, entitled "an act providing for the trial of all causes pending in the respective district courts of the united states, in case of the absence or disability of the judges thereof," and presented to the president of the united states for his approbation, has been returned by the president of the united states, with the following objections: "because the additional services imposed by the bill on the justices of the supreme court of the united states, are to be performed by them rather in the quality of other judges of other courts, namely, judges of the district courts, than in the quality of justices of the supreme court. they are to hold the said district courts, and to do and perform all acts relating to the said courts which are by law required of the district judges. the bill, therefore, virtually appoints, for the time, the justices of the supreme court to other distinct offices, to which, if compatible with their original offices, they ought to be appointed by another than the legislative authority, in pursuance of legislative provisions authorizing the appointments. "because the appeal allowed by law from the decision of the district courts to the circuit courts, while it corroborates the construction which regards a judge of the one court, as clothed with a new office, by being constituted a judge of the other, submits for correction erroneous judgments, not to superior or other judges, but to the erring individual himself, acting as sole judge in the appellate court. "because the additional services to be required may, by distances of place, and by the casualties contemplated by the bill, become disproportionate to the strength and health of the justices who are to perform them, the additional services being, moreover, entitled to no additional compensation, nor the additional expenses incurred, to reimbursement. in this view, the bill appears to be contrary to equity, as well as a precedent for modifications and extensions of judicial services, encroaching on the constitutional tenure of judicial offices. "because, by referring to the president of the united states questions of disability in the district judges, and of the unreasonableness of delaying the suits or causes pending in the district courts, and leaving it with him in such cases to require the justices of the supreme court to perform additional services, the bill introduces an unsuitable relation of members of the judiciary department to a discretionary authority of the executive department. "james madison." and the house of representatives, where the bill originated, have taken the question in the constitutional way, and have resolved that this bill do not pass. friday, april . _temporary non-exportation._ on motion, by mr. dana, the injunction of secrecy was removed respecting the proceedings on the "act to prohibit the exportation of specie, goods, wares, and merchandise, for a limited time." [_the proceedings are as follow_:] thursday, april , . the following confidential message was received from the house of representatives, by their committee, mr. smilie and mr. pleasants--mr. smilie, chairman: _mr. president_: the house of representatives have passed a bill, entitled "an act to prohibit the exportation of specie, goods, wares, and merchandise, for a limited time;" in which bill they ask the concurrence of the senate. the bill was read, and, on motion, by mr. campbell of tennessee, that the bill be now read the second time by unanimous consent, it was objected to as against the rule. _ordered_, that the bill pass to a second reading. friday, april . the bill from the house of representatives, entitled "an act to prohibit the exportation of specie, goods, wares, and merchandise, for a limited time," was read the second time, and referred to a select committee, to consider and report thereon; and messrs. campbell of tennessee, bradley, and taylor, were appointed the committee. mr. campbell of tennessee, from the committee, reported the bill last mentioned with an amendment. whereupon, the bill was resumed, and considered as in committee of the whole, together with the amendment reported thereto by the select committee; and having agreed to the amendment, the president reported the bill to the house accordingly. on motion, by mr. goodrich, that the further consideration of the bill be postponed until to-morrow, and that it be printed under an injunction of secrecy, for the use of the senate, it was determined in the negative. on the question, shall the bill pass to the third reading as amended? it was determined in the affirmative--yeas , nays , as follows: yeas.--messrs. anderson, bibb, brent, campbell of tennessee, condit, crawford, gaillard, gregg, howell, leib, pope, smith of new york, tait, taylor, turner, and varnum. nays.--messrs. bradley, dana, german, giles, gilman, goodrich, horsey, hunter, lambert, lloyd, reed, and smith of maryland. friday, april . _mississippi territory._ mr. taylor, from the committee to whom was referred on the th of march, the bill, entitled "an act to enable the people of the mississippi territory to form a constitution and state government, and for the admission of such state into the union on an equal footing with the original states;" and on the th instant, the bill to carry into effect the provisions of the eighth section of the act regulating the grants of land, and providing for the disposal of the lands of the united states south of the state of tennessee, reported that the said bills be severally postponed to the first monday in december next. the report is as follows: that in considering the subject referred to them, they could not avoid being struck with the immense size of the territory proposed to be erected into a state, a size disproportionate to the size of any of the largest states which now compose our confederation. it embraces, in its present form, and without any extension, to the gulf of mexico, (as is proposed in the bill referred to us,) nearly six and a half degrees of geographical longitude, and four entire degrees of latitude, and affords an area of twice the surface of the state of pennsylvania. your committee are strongly impressed with the propriety and expediency of dividing the said territory, so as to form of the same two states, whenever the population, within the limits of each section, shall render it just and proper; and they respectfully submit to the senate the following divisional line, between the western and eastern sections of the said territory, viz: up the mobile river, to the point nearest its source, which falls on the eleventh degree of west longitude from the city of washington; thence a course due north until the line intersects the waters of bear creek; thence down the said creek to its confluence with the tennessee river; thence down the said river to the northern boundary line of the said territory. by a view of the map of this country it will appear that the above divisional line will divide the territory into nearly two equal parts, and it has, for the most part, a delineation by nature. by the th section of the st article of the treaty of cession from the state of georgia the united states are bound to erect the said territory into one state. it has, however, been suggested that the state of georgia would not, upon a proper representation, withhold her consent to the proposed division. to the end, therefore, that an opportunity may be afforded to the state of georgia to express this consent, by a legislative act of the said state, as they shall think proper, your committee recommend that the said bill shall be postponed to the first monday in december next. monday, april . _death of the vice president._ the president addressed the senate as follows: "gentlemen: upon me devolves the painful duty of announcing to the senate the death of our venerable fellow-citizen, george clinton, vice president of the united states. "by this afflictive dispensation of divine providence the senate is deprived of a president rendered dear to each of its members by the dignity and impartiality with which he has so long presided over their deliberations; and the nation bereaved of one of the brightest luminaries of its glorious revolution." the senate being informed of the decease of their distinguished fellow-citizen, george clinton, vice president of the united states, do _resolve_, that a committee be appointed, jointly with such as may be appointed on the part of the house of representatives, to consider and report measures proper to manifest the public respect for the memory of the deceased, and expressive of the deep regret of the congress of the united states on the loss of a citizen so highly respected and revered. _ordered_, that messrs. smith of new york, smith of maryland, german, gilman, and bradley, be the committee. _ordered_, that the secretary carry this resolution to the house of representatives. a message from the house of representatives informed the senate that the house concur in the resolution of the senate for the appointment of a joint committee "to consider and report measures proper to manifest the public respect for the memory of the vice president of the united states," deceased, and have appointed a committee on their part. tuesday, april . on motion of mr. smith of new york, _resolved unanimously_, that, from an unfeigned respect to the late george clinton, vice president of the united states, and president of the senate, the chair of the president of the senate be shrouded with black during the present session; and, as a further testimony of respect for the memory of the deceased, the members of the senate will go into mourning and wear a black crape round the left arm for thirty days. friday, april . _recess of congress._ mr. bradley, from the joint committee of the two houses appointed on the subject of a recess, reported the business that demands the immediate attention of congress, and the following resolution: _resolved, by the senate and house of representatives of the united states of america in congress assembled_, that, during the present session of congress, the president of the senate and speaker of the house of representatives shall, on the th day of april instant, adjourn their respective houses to monday, the th day of may next, then to meet at the same place in which the two houses are now sitting. on motion, by mr. bradley, the resolution was twice read by unanimous consent; and, on motion by mr. pope, amended, by striking out the words "eighteenth day of may next." on the question, shall this resolution be engrossed, and read a third time as amended, it was determined in the affirmative--yeas , nays . saturday, april . _recess of congress._ the senate resumed the consideration of the resolution for a recess of congress from the th inst. to the ---- day of ---- next. mr. pope moved to fill the blank with the th monday in june. the most distant day would probably accommodate the greatest number of members; and this day would be sufficiently early to take measures necessary on the expiration of the embargo. mr. anderson said he had supposed the day fixed upon by the committee, viz: the th of may, would have been the day. he did not himself feel the necessity of any adjournment; but, if it must take place, it ought either to be for a short time, or for so long a time as equally to accommodate all. if it were to be for a short time, it would be merely for relaxation; if for a longer time, as was now proposed, he feared it would be considered as indicative of an intention to pause in the course of measures they had commenced, and produce an impression abroad, among the people, which was much to be deprecated. mr. pope said he was in favor of such a time being fixed on as should accommodate the greatest number of the members. as to the effect of an adjournment on the public mind, he imagined that the difference between a recess of twenty or thirty days would be very unimportant. mr. g. w. campbell said it seemed to him something like bribing the members to obtain votes, to talk about lengthening the time so as to accommodate the greatest number of members. he could not conceive it consistent with the honor of the country that they should decide the question of adjournment on the mere ground of personal convenience; he considered the only question to be, whether a recess would have a good or bad effect on the public service. he had on a former occasion stated his objection to this step, that it would produce an ill effect on the public mind. many misrepresentations have been already made to induce the public to believe you are not in earnest. an adjournment for any length of time would seem like deserting our posts, and will put the seal on this belief. under this view, he must vote against the adjournment; but the longer was the recess, the worse would be the effect on the public mind. he should, therefore, vote for the shortest day. mr. bradley said he could not see that the proposed recess would be deserting their posts at all. the nation knew that the government could not go to war without soldiers; and sitting here would certainly not restore peace. congress had adopted many war measures, the execution of which they had put into the hands of the executive; they had also authorized a loan of eleven millions. and while these measures were going on, could congress, by staying here constantly, add to the number of men, or expedite the loan? if an enemy were to invade us, without any government at all, they would be promptly resisted. but, if we are going to war to redress grievances, to revenge injuries received, we should choose our own time. if we begin war before we have an army, it is bringing the nation to the last stage of degradation, not to consider at all the sufferings and losses which would be in such cases sustained. it would be a great error to attempt to put this country, by a forced vote of congress, into war. you cannot lead this country to war as the butcher leads his flock to the slaughter-house. this is a government of opinion; the public sentiment will not be driven, but must be followed. congress have certainly done as much for the present as they can. i wish to see the effect of the measures they have taken. the executive is clothed with all the necessary powers to make preparation for war; and if the nation will not abide by us and support the measures of congress, it is vain to say we can force the people into a war. i believe the people will be better satisfied with a recess than with our sitting here from day to day without doing any thing material, and there is nothing material at this moment to do. they are not irrational; they know that congress have been in session six months; they must also foresee that when we come to war, the council of the nation must be perpetually in session; they will, therefore, not be dissatisfied at a short recess. if war be actually to take place at the expiration of the embargo, this, of all others, is the time for relaxation. the question on the insertion of the eighth day of june as the day of reassembling of the two houses, was decided as follows: yeas.--messrs. bradley, condit, crawford, dana, german, gilman, goodrich, gregg, horsey, hunter, lambert, lloyd, pope, reed, robinson, smith of new york, turner, and worthington-- . nays.--messrs. anderson, bibb, brent, campbell of tennessee, cutts, gaillard, giles, howell, leib, smith of maryland, tait, taylor, and varnum-- . so the motion was carried. wednesday, april . _maritime defence._ mr. pope asked and obtained leave to bring in a bill more effectually to protect the commerce and coasts of the united states; and the bill was read, and passed to the second reading. tuesday, june . _rhode island resolutions._ mr. hunter presented the resolutions of the legislature of the state of rhode island and providence plantations, instructing their senators and representatives in congress, to use their endeavors to avert the evils of war, to put our maritime frontier in a state of defence, and for the repeal of the embargo and restrictive system; and the resolutions were read. _new york memorial._ mr. smith of new york, presented the following petition of sundry inhabitants, merchants, and others, of the city of new york, praying that the embargo and non-importation laws be continued as a substitute for war against great britain: to the honorable the senate and house of representatives of the united states of america in congress assembled, the memorial of the subscribers, merchants, and others, inhabitants of the city of new york, respectfully showeth: that your memorialists feel, in common with the rest of their fellow-citizens, an anxious solicitude for the honor and interest of their country, and an equal determination to assert and maintain them. that your memorialists believe that a continuation of the restrictive measures now in operation will produce all the benefits while it prevents the calamities of war. that when the british ministry become convinced that a trade with the united states cannot be renewed, but by the repeal of the orders in council, the distress of their merchants and manufacturers, &c., their inability to support their armies in spain and portugal, will probably compel them to that measure. your memorialists beg leave to remark, that such effects are even now visible; and it may be reasonably hoped that a continuance of the embargo and non-importation laws a few months beyond the fourth day of july next, will effect a complete and bloodless triumph of our rights. your memorialists therefore respectfully solicit of your honorable body the passage of a law continuing the embargo, and giving to the president of the united states power to discontinue the whole of the restrictive system on the rescinding of the british orders in council. the conduct of france in burning our ships, in sequestrating our property entering her ports, expecting protection in consequence of the promised repeal of the berlin and milan decrees, and the delay in completing a treaty with the american minister, has excited great sensation, and we hope and trust will call forth from your honorable body such retaliatory measures as may be best calculated to procure justice. john jacob astor samuel adams howland & grinnell e. slosson israel gibbs isaac clason john slidell john k. townsend andrew ogden & co. thomas storm amos butler ebenezer burrill isaac heyer ralph bulkley samuel bell john f. delaplaine peter stagg david taylor abraham smith thomas h. smith, jr. andrew foster jacob barker william lovett william edgar, jr. samuel stillwell jacob p. giraud john hone john kane amasa jackson william j. robinson joseph strong abraham s. hallet joshua jones frederick giraud, jr. robert roberts john crookes william adee john t. lawrence joseph w. totten isaac schermerhorn alexander ruden joseph otis lewis hartman garret storm george bement s. a. rich hugh mccormick john depeyster gilbert haight james lovett leffert lefferts augustus wyncoop john w. gale thomas rich samuel marshall elbert herring. after the memorial had been read, mr. taylor said, that the respectability of the subscribers to a petition presented to this body, and the importance of the matter therein contained, had, on various occasions, been used as inducements to us to give such petition a respectful _disposition_ in the course of our proceedings. he recollected a case in point. it was the case of the petition of an eminent merchant of massachusetts, presented by an honorable senator from that state, and which at the suggestion of that honorable gentleman was, by the senate, ordered to be printed. he was of opinion that the petition just read ought not to be treated with less attention. that he had seen the petition, and had inquired into the character of its subscribers--and had been informed that the fifty-eight signers to it were among the most respectable, wealthy, and intelligent merchants of the city of new york. there are to be found in that list the names of two presidents of banks; three presidents of insurance companies; thirteen directors of banks: besides other names of pre-eminent standing in the mercantile world. they had all united in the sentiments contained in the petition, notwithstanding that there existed among them a difference in political opinions--for he understood that of the petitioners forty-two were federal and sixteen republican. mr. t. added, that he considered some of the sentiments contained in the petition as of the highest importance. he hailed it as an auspicious occurrence, that these honorable merchants, in praying that the evils of war might be averted from them and from the nation, had nevertheless held fast to the principle of resistance to the aggressions and unhallowed conduct of great britain towards our nation--and had exercised the candor and firmness to bear testimony to the efficiency of the restrictive system for obtaining a redress of our wrongs, and of course to the integrity and honor of those who had imposed this system for that purpose. he hoped that the example of these petitioners would tend to counteract those strenuous and unremitting exertions of passion, prejudice, and party feeling, which had attempted to stamp upon the majority in congress the foul and unjust censure of being enemies to commerce. that, however unfashionable and obstinate it might appear, he still believed that the embargo and non-importation laws, if faithfully executed, were capable of reaching farther than our cannon. we were at this very time tendering an urgent argument, to be felt by each city, village and hamlet in england. this touching to the quick the vital interests of that empire, would demonstrate to the people at least the folly and absurdity of the orders in council. the ordeal of the twenty weeks of scarcity, which the people of that unhappy country are undergoing, to relieve which, but for the madness and folly of their rulers, every yard of american canvas would be spread to the gales: the thousands of starving manufacturers thrown out of employ for want of our custom, which custom, but for the injustice of their masters, we were willing to give, now feel the efficiency of the restrictive system. these matter-of-fact arguments want no sophistry nor long speeches to give them weight. but great britain is proud, and will never yield to this sort of pressure. hunger has no law. where was her pride during the last year when she exported to her enemy on the continent more than eleven millions of pounds sterling for provisions; and meanly truckling to her enemy, consented to buy the privilege of laying out her guineas for bread; and actually submitted on the compulsion of napoleon to buy the wines, brandies, and silks of france, which she did not want! this restrictive system, when commenced under the former embargo law, encountered every opposition among ourselves, which selfish avarice, which passion and party rage could suggest; and so successful were its assailants that while it was operating with its fullest effects, (which the prices current of that day will show,) some of its greatest champions in the national legislature abandoned it--yes, sir, in the tide of victory they threw down their arms. how were the mighty fallen, and the shield of the mighty vilely cast away! the disavowal of erskine's arrangement was the consequence of this retreat. but it may be said that the sentiments in their petition were extorted by the apprehension of a greater evil--war. in all our trials, those who had not predetermined to submit to great britain must have anticipated this alternative. let those who by their acrimony, sneers, and scoffs, have thrown away this chief defence of our nation, be held responsible for the compulsion they have imposed on us to take this dire alternative. he said that although he was unwilling to abate a single pang which we might legally inflict upon our enemy, and might at the proper time oppose any thing like the swap proposed of one system for another, when we had the power and the right to impose upon our enemy both the one and the other, he nevertheless thought the petition was deserving of the attention which he now moved it should receive. he moved that the petition should be printed. the motion was agreed to; and the senate then adjourned. thursday, june . _general wilkinson's accounts._ the senate resumed the consideration of the resolution reported by the committee on the memorial of general james wilkinson, which is as follows: _resolved_, that the proper accounting officer of the department of war be directed, in the settlement of general wilkinson's account, to place to his credit the sum of four thousand and thirty-six dollars seventy-seven cents. and the resolution was agreed to, and recommitted to the original committee, with instruction to bring in a bill accordingly. friday, june . _massachusetts memorial._ mr. lloyd presented a resolution of the house of representatives of massachusetts, passed june d, instant, expressing their opinion "that an offensive war against great britain, under the present circumstances of this country, would be in the highest degree impolitic, unnecessary, and ruinous;" also, a memorial of the said house of representatives, passed by a majority of one hundred and sixty-six, on the same subject; and the resolution and memorial were read, and ordered to be printed for the use of the senate. they are as follows: commonwealth of massachusetts: in the house of representatives, _june , _. _resolved_, as the opinion of this house, that an offensive war against great britain, under the present circumstances of this country, would be in the highest degree impolitic, unnecessary, and ruinous; that the great body of the people of this commonwealth are decidedly opposed to this measure, which they do not believe to be demanded by the honor or interests of the nation; and that a committee be appointed to prepare a respectful petition to be presented to congress, praying them to arrest a calamity so greatly to be deprecated, and, by the removal of commercial restrictions, to restore, so far as depends on them, the benefits of trade and navigation, which are indispensable to the prosperity and comfort of the people of this commonwealth. timothy bigelow, _speaker_. thursday, june . _injunction of secrecy on war measures removed._ the injunction of secrecy thereon having been removed, on motion, by mr. anderson, twelve hundred copies of the confidential message of the president of the united states of the first of june instant, were ordered to be printed for the use of the senate. _certain confidential proceedings of the senate, since first june, are as follow, the injunction of secrecy having been removed_: monday, june , . a confidential message was received from the president of the united states, as follows: [for this message, see the _supplemental journal_ of the proceedings of the house of representatives, under the date of june , , _post_.] friday, june . _declaration of war against great britain._ a confidential message was received from the house of representatives, by messrs. macon and findlay, two of their members--mr. macon, chairman: _mr. president_: the house of representatives have passed a bill, entitled "an act declaring war between great britain and her dependencies, and the united states and their territories;" in which they ask the concurrence of the senate; and request that the bill be considered confidentially. an act declaring war between great britain and her dependencies, and the united states and their territories. _be it enacted by the senate and house of representatives of the united states of america_, _in congress assembled_, that war be and the same is hereby declared to exist between great britain and her dependencies, and the united states and their territories; and that the president of the united states is hereby authorized to use the whole land and naval force of the united states to carry the same into effect; and to issue to private armed vessels of the united states commissions or letters of marque and general reprisal, in such form as he shall think proper, and under the seal of the united states, against the vessels, goods, and effects of the government of great britain, of its subjects, and of all persons inhabiting within any of its territories or possessions. on motion, the bill was twice read by unanimous consent; and, on motion by mr. leib, it was referred to the committee appointed the st instant, on the confidential message of the president of the united states of the same date, to consider and report thereon. tuesday, june . on motion by mr. anderson, the bill entitled "an act declaring war between great britain and her dependencies, and the united states and their territories," was considered as in committee of the whole. mr. gaillard was requested to take the chair; and, after debate, a motion was made by mr. gregg, that the bill be recommitted, for further amendment, to the committee who have under consideration the message of the president of the united states of the st june. and, after debate, the president resumed the chair, and the senate adjourned. wednesday, june . mr. gaillard was requested to take the chair. the senate resumed, as in committee of the whole, the bill, entitled "an act declaring war between great britain and her dependencies, and the united states and their territories." mr. gregg, by permission, amended his motion for recommitting the bill to the committee appointed on the confidential message of the president of the united states, of the st of june, as follows: _resolved_, that the bill entitled "an act declaring war between great britain and her dependencies, and the united states and their territories," be recommitted to the committee to whom was committed the message of the president, of the st instant, with instructions to modify and amend the same, in such manner that the president of the united states shall have power to authorize the public armed ships and vessels of the united states to make reprisals upon the public and private ships and vessels, goods, and merchandise, belonging to the crown of the united kingdom of great britain and ireland, or to the subjects thereof; and also to grant letters of marque and reprisal, under suitable regulations, to be provided in the bill, to private armed ships and vessels to make like reprisals. thursday, june . mr. gaillard was requested to take the chair. on motion by mr. anderson, the bill from the house of representatives, entitled "an act declaring war between great britain and her dependencies, and the united states and their territories," was resumed, and considered as in committee of the whole, together with the motion yesterday submitted by mr. gregg; and on the question to agree to the motion, it was determined in the affirmative--yeas , nays , as follows: yeas.--messrs. bayard, condit, dana, german, giles, gilman, goodrich, gregg, horsey, howell, hunter, lambert, leib, lloyd, reid, smith of new york, and worthington. nays.--messrs. anderson, bibb, campbell of tennessee, crawford, cutts, franklin, gaillard, pope, smith of maryland, tait, taylor, turner, and varnum. whereupon, mr. crawford resumed the chair; and, on motion by mr. anderson, it was ordered that the committee to whom this bill is recommitted have leave to sit immediately. friday, june . _reprisals on british commerce._ mr. anderson, from the committee to whom was recommitted the bill, entitled "an act declaring war between great britain and her dependencies, and the united states and their territories," with instructions to modify and amend the same, in such manner that the president shall have the power to authorize the public armed ships and vessels of the united states to make reprisals upon the public and private ships and vessels, goods, and merchandise, belonging to the crown of the united kingdom of great britain and ireland, and to the subjects thereof; and also to grant letters of marque and reprisal, under suitable regulations, to be provided in the bill, to private ships and vessels to make reprisals, agreeably to said instructions. saturday, june . _declaration of war._ mr. gaillard was requested to take the chair; and on motion, by mr. anderson, the consideration of the bill, entitled "an act declaring war between great britain and her dependencies, and the united states and their territories," was resumed, as in committee of the whole; and having agreed to sundry amendments, the president resumed the chair; and mr. gaillard reported the bill with amendments, which were considered in senate and agreed to. a motion was made by mr. german, to postpone the further consideration of the bill to the first monday in november next. mr. german addressed the chair as follows: mr. president: i made the motion to postpone the consideration of the bill now before us, from a conviction that it will be extremely injurious to the country to pass it at this time. i feel, sir, that the state i have the honor to represent has a peculiar interest in the event of this question; and i also feel the weight of the interest which the nation at large has at stake, in the event of the passage of this bill. i therefore consider it a duty i owe my constituents, to use every reasonable exertion in my power to prevent the object of that bill, until the country is better prepared to carry it into effect. as i presume the war, if declared, is intended to be an offensive one, i will, to establish the propriety of my motion, take a general view of the situation of this country; of its means to carry on offensive operations, as well as to defend itself, and of the situation and relative strength also of the country we are required to make war upon. i am ready to allow, mr. president, that both great britain and france have given us abundant cause for war; on this occasion, therefore, i shall dispense with using any argument which might serve to show, that if we were even in a state of preparation, and possessed the means of insuring a favorable issue, it would be bad policy for this country, at the present time, to enter into war with great britain, although perhaps many weighty reasons might be adduced in support of such argument. i will first call the attention of the senate to the ability and strength of the nation we are about, by this bill, to declare war against. gentlemen ought to recollect, that great britain has been almost constantly engaged in war for twenty years past against one of the most powerful nations that ever existed; and for a considerable part of that time, the energies of her enemy have been directed by war's favorite genius--napoleon, who has succeeded in uniting nearly the whole force of the continent of europe against her: against that very nation which we are about to assail; and what has been the effect? is great britain less powerful now, than she was twenty years ago? no, sir, this constant warfare has increased her powers instead of diminishing them. at the commencement of the war, france was nearly her equal on the ocean, and several other nations of europe maintained a powerful naval force. but what is their situation at present? has not great britain driven them all from the ocean? and does she not remain sole mistress? i ask gentlemen, if her ability to carry on a distant war by land or sea, has diminished? the answer must be that it has increased with her navy, and extended with her dominion. great britain now commands the strength and resources of most of the west india islands, and many of the islands in the indian ocean. she controls the destinies of more than thirty millions of people on the continent of asia. and she has, at this time, or will have, if we engage in a war with her, the exclusive benefit of the trade of the world; and under these circumstances possesses the ability to carry on a war in distant countries across the ocean, beyond any nation ever heard of. these considerations, mr. president, lead me to the view of our situation and means of defence, and of our ability to carry immediate war into the colonies of upper and lower canada. i will first consider the situation of our maritime frontier, beginning at new orleans, and examine the situation of that place. we learn from the war office that there is _little_ rising of one hundred regular troops stationed near the city for its defence. now i will ask any gentleman if that paltry force is sufficient for that object; and if it will not be in the power of the british to take possession of that city within sixty days after your declaration of war against them? if gentlemen calculate on the goodness and forbearance of the enemy, i think they will be deceived. great britain is a wily, active nation. she has been trained to war. she will not measure her steps and movements by ours; if we are not prepared to defend our seaports, she will not wait until we are; and should she get possession of new orleans, it will cost much blood and treasure to dislodge her. passing northerly along our coast, let us see what is the situation of our most valuable cities. charleston and norfolk, as well as many other places of less consequence, are found exposed to maritime attacks. and when we reach the city of new york (the nation's great emporium of trade) do we, on viewing its situation, and strength of the public works for its defence, find it in a perfect state of security? no, sir, unless the greatest part of your frigates are stationed there, to aid your fortifications, and gunboats, it will fall a prey to the enemy. it can be assailed by a small fleet, with every prospect of success. the only resistance they would meet with would be in passing the fortifications on staten island, and perhaps a few shots from bedlow's and ellis's islands. they might soon place themselves abreast the works at the upper end of the city, the weakest of them all. and i have no doubt two seventy-fours might silence this work in twenty or thirty minutes. they would then meet with no other resistance than from travelling guns on the shore and from the docks. the result would probably be, that the city would be set on fire, or a contribution extorted from its inhabitants. i will now pass on to rhode island. does the prospect of security there flatter us? no, sir. i am told by competent judges that nothing short of a force of from three to five thousand men can defend that island. boston, it is said, can be defended, and is, perhaps, the only secure place of considerable consequence on the seaboard. in viewing the situation along the province of maine, and our northern frontier up the river st. lawrence, and the lakes to fort malden, and from thence to the mississippi, do we not find almost every point and place where there are inhabitants, subject to the incursions of the enemy? have they not more troops on and near the line than we have? yes, sir, they have ten to our one, and a militia which the government of canada have been fully vigilant in training. i understand that ever since the prospect of war began to thicken in the political horizon, they have trained their militia three or four times a month, and have paid them daily wages for their services. not so, sir, with our militia--they have, it is true, been called into the public service to do the duty of regular troops; and what is now their situation? sixteen hundred of the militia of the state of new york have been ordered into public service, on the frontiers of that state, and have, as i am informed, marched to their place of destination. there we find exhibiting a spectacle that would wound the feelings of the most callous man--_without hats, without blankets to cover them, without camp-kettles to cook the miserable provisions furnished them by the government contractors or any one necessary for camp equipage_. _their officers with the utmost difficulty preventing their marching home for self-preservation._ here, mr. president, i wish to call the attention of the senate to the propriety and constitutionality of calling out this detachment of militia at a time when no enemy menaced an invasion. the constitution only authorizes the general government to call out the militia to suppress insurrection, enforce the laws, and repel invasion. and i would ask whether either of these events had happened when this corps of militia were ordered out? no. it is well known that no such emergency existed. but they have this miserable consolation, that they are to receive six dollars and two-thirds a month for their services, finding their own clothes, arms and accoutrements. i do not mention these things with a wish to discourage the militia from serving their country when necessary, nor do i believe defending them in their constitutional rights will have that effect, for i am fully aware that there is no class of citizens more patriotic or willing to defend their country than they are, and will be so found when the safety of it shall really demand their services. i will now resume the consideration of our situation upon the lakes to detroit and fort malden. here it must be remembered that the british command the lakes. we are told that governor hull is marching to the defence of detroit with twelve hundred militia from the state of ohio, together with four hundred regular troops, formed and disciplined for action by the brave colonel boyd. these troops, i hope, will be better supplied and provided for than those on the frontier of new york. it is whispered by some of the favorites who are suffered to know the projects of our government, that the british have sent a part of their regular troops, together with a number of indians, from fort malden to fort erie, near the falls of niagara; and this is taken as certain evidence of the weakness of the garrison at fort malden, and that that fort may consequently be surprised and taken by governor hull with little difficulty. now, i draw the exact contrary conclusion from this circumstance; for the british must have known that governor hull was on his march to detroit; and if they had been weak at fort malden they never would have detached part of their force and sent it to the aid of fort erie. but presuming they had not heard of governor hull's march, and that they had left that fort comparatively defenceless, they will assuredly learn it soon enough to have the detachment return by water before governor hull can reach malden. and if in the attempt to take fort malden, governor hull should meet with a defeat, the consequences will be alarming; for no reinforcement can be sent him, nor any assistance afforded soon enough to prevent a disastrous termination of the expedition. in that case the british, with a partial aid from the indians, might cross the river and take possession of detroit; and if they should then obtain the assistance of the indians generally, it will be in their power to drive in all the frontier settlements of ohio; and there can be little doubt when this war is once commenced that nearly all the indians will flock to the british standard. monday, june . the senate resumed the consideration of the bill, entitled "an act declaring war between great britain and her dependencies, and the united states and their territories," together with the motion made by mr. german to postpone the further consideration thereof until the first monday in november next: and on the question to agree to the motion, it was determined in the negative--yeas , nays , as follows: yeas.--messrs. bayard, dana, german, gilman, goodrich, horsey, hunter, lambert, lloyd, and reed. nays.--messrs. anderson, bibb, brent, campbell of tennessee, condit, crawford, cutts, franklin, gaillard, giles, gregg, howell, leib, pope, robinson, smith of maryland, smith of new york, tait, taylor turner, varnum, and worthington. on motion, by mr. leib, to amend the bill, as follows: [the amendment was to authorize privateering both against great britain and france.] on the question. shall this bill pass to a third reading as amended? it was determined in the affirmative--yeas , nays , as follows: yeas.--messrs. anderson, bibb, brent, campbell of tennessee, condit, crawford, cutts, franklin, gaillard, giles, gregg, leib, robinson, smith of maryland, smith of new york, tait, taylor, turner, and varnum. nays.--messrs. bayard, dana, german, gilman, goodrich, horsey, howell, hunter, lambert, lloyd, pope, reed, and worthington. tuesday, june . _declaration of war._ the amendments to the bill from the house of representatives, entitled "an act declaring war between great britain and her dependencies, and the united states and their territories," were reported by the committee correctly engrossed. mr. bayard moved to postpone the further consideration of the bill to the thirty-first day of october next. the motion did not oppose or deny the sufficiency of the causes, or the policy of the war. it went only to affirm what he trusted the course of his observations would render very evident, that this was not a time at which war ought to be declared. he indulged a confidence, that upon so great an occasion the senate would not be impelled to act by any little passions, nor by any considerations which did not arise out of an extended and distinct view of the interests of the country. it is not enough that we have cause of war; we must see that we are prepared, and in a condition to make war. you do not go to war for the benefit of your enemy, but your own advantage; not to give proofs of a vain and heedless courage, but to assert your rights and redress your wrongs. if you commence hostilities before you are prepared to strike a blow, and while your cities, your territory, and your property on the ocean, are exposed to the mercy of a government possessing vast resources of war, what can you expect but to add new distresses, defeat, and disgrace to the wrongs of which you complain? it is a strange motive for war--a wish to gratify the rapacity, to swell the triumphs, and to increase the insolence of the enemy. mr. b. said, that neither the government nor the people had expected, or were prepared for war. even at this moment, the general opinion abroad was, that there would be no war, the mercantile and trading world had continued to act upon that opinion. nor could people be persuaded that an unarmed nation was about to attack a nation armed cap-a-pie. no man had laid out his account for this war, and every one would be taken by surprise and unprepared for its shock. you have at this moment an immense property abroad, a great portion of it in england, and part floating on the ocean and hastening to your ports. the postponement proposed might save a great portion of this property, and bring home the seamen now absent from the country. gentlemen would remember the number of ships which left our ports on the eve of an embargo. these vessels had not had time to perform their voyages, and the greater part of them were still abroad. he knew that some members had no commiseration for the merchant who had dared to escape the embargo, and who had disregarded the salutary precautions, designed, as it was said, for his security. but he did not think it surprising, nor culpable, that those whose property consisted in ships, should be averse to seeing them rotting at the wharves, and even disposed to incur risks to find employment for them abroad. even, however, if it should be thought that the merchants had acted with indiscretion and folly, it is the part of a parental government, such as this ought always to be, not to punish the citizens for their misfortunes, but to guard them against the effect of their errors. besides, a loss of individual property was a loss to the state, as the public strength was derived from individual resources. he stated that the question of war had been doubtful till the present moment. he did not believe that the president himself expected war at the opening of the session, nor for a long time after. a menacing language was held out; but the hopes of an accommodation were far from being abandoned. much was expected from the prince regent's accession to his full powers. a change of ministry was not doubted, and it was thought that in the change of men, there would have been found such a change of principles and measures, that the differences between the two governments might be compromised and settled. this expectation was protracted till it became plainly evident that the prince did not intend to change his father's ministers, nor to depart from their principles or measures. when this discovery was made, the administration had proceeded too far to recede. desperate as the course was which now alone remained to be pursued, they supposed they were obliged to advance or become the object of reproach and scorn both to friends and foes. this necessity they had brought upon themselves, but it was too late to consider whether the condition might have been avoided; they were pledged in this state of events to attempt to extort from great britain by force the concession of those points which their arguments had failed in persuading her to yield. he had no doubt but that, some months past, the cabinet had seriously determined upon resorting to hostilities. but the concurrence of congress was to be obtained, and whether a majority of both houses could be brought to take the daring and hazardous step, no man in or out of the government, without the gift of prophecy, could have predicted. the public mind had been so repeatedly distracted and deceived by boisterous speeches, and bold but ephemeral resolutions, that it had sunk into a state of apathy, and was no longer excited even by the sound of war echoed in the ministerial paper from the proceedings of government. when the bill before us was first brought up from the other house, it was the opinion of very few that it would obtain the support of a majority of this body; and, even now, it was likely to pass, not because it was approved by a majority, but of the differences of opinion which existed among gentlemen as to other courses which had been proposed. if, with the light and information possessed in this body as to the views and designs of the cabinet and of congress, it has been doubtful among ourselves whether the government would resort to war, how was it to be known by our merchants, or any other class of society unacquainted with the intentions and secret proceedings of those exercising the powers of the government, that the nation would be wantonly plunged into a sudden war? he had heard it said, that the embargo was a sufficient notice of the design of the government to resort to hostilities upon its expiration, and that the people must be infatuated, who, after such warning, were not apprised of the approaching crisis. but it is too recently and deeply in our recollection to be forgotten, that this is not the first embargo we have experienced, and which, though of longer duration, we saw pass away without being followed by war. the language held there, as to people out of doors who have doubted of the war, is retorted by the public voice with equal confidence and on better grounds. they rely upon your integrity and wisdom, and say that congress cannot be so infatuated, destitute as they are of the means of aggression or defence, to draw upon themselves a war with one of the most powerful and formidable nations on the globe. if a war with great britain be thought unavoidable, yet, as she leaves to us the time of commencing it, surely we ought to select that time when the first shock shall be least disastrous, and can best be resisted. why should we hurry into a war from which nothing but calamity can be expected? there is no danger that the redress of our wrongs, or the assertion of our rights, will be barred by the limitation of time. no time has existed for years past when we had less cause to complain of the conduct of great britain. her vessels of war had all been withdrawn from our coast, as he presumed, in order to avoid collisions and hostility. if the war be suspended till november, the government and the people will both be better prepared to sustain it. he was not a friend to the restrictive system, but with a choice out of evils, he should prefer the embargo to war. postpone the war, and we will submit to the embargo till november. this will furnish time for the return of your ships and seamen; and if, at the same time, you will abandon the non-importation act, you will replenish your treasury with at least twelve millions of dollars, and restore to your citizens sixty millions now abroad, and in danger of being lost. it appeared to him that the course which had been pursued was the most preposterous imaginable. for eighteen months past, we had been sending our property out of the country, and not suffering it to return; and, while contemplating a war with great britain, we saw our effects to an immense amount accumulating in that kingdom, liable at any moment, to fall a prey to the government, and to be employed in support of the war against us. he asked, why rush with this precipitancy into the war? are you provided with means to annoy the enemy, or to defend yourselves? have you an army or navy which can make any impression? are your exposed towns fortified and garrisoned? was any nation ever less prepared for war? it would require the whole military force that you now possess to constitute an adequate defence for new orleans, new york, and newport. it is very well known that the general who will command at new orleans has declared to the government, that he will not be answerable for the security of the place with less force than ten thousand men, which is equal to all the effective troops yet raised. it would be natural to suppose that no government would declare war till it was prepared to attack its enemy. in peace we require no defence, and shall we declare war in order to defend ourselves? but what blow are you prepared to strike? were you able in the summer to recruit your army of twenty-five thousand men, could it be employed in any service in the course of this year? a soldier is not made in a day. the authority of a foreign officer, now in this country, of the highest military reputation, he had heard frequently cited, that it required at least fourteen months to form a soldier of a recruit. this remark applied to france, where the officers have generally received a military education, and where there are so many models to imitate, and so many instructors to teach. but here the officer is to form as well as the soldier. the officer has to learn his lesson first, before he can prescribe the task of the soldier. you may possibly have a herd of men, but you can have no army to lead into service this season; and if this herd be led against disciplined troops, you can expect nothing but defeat and disgrace. but you have not got, nor can you get the men during the present year. these are not the days of cadmus. it will require great patience and industry, and a considerable length of time, to collect twenty-five thousand men. have you the least prospect, if you declare war, of attacking canada this season? it is impossible that you can do it with effect. you will be sufficiently occupied in defending your frontiers against the savages. it is not on land then that you expect immediately to assail your enemy. is it on the ocean that the impression is to be made? you have twenty vessels of war--britain upwards of a thousand. what will avail the activity or gallantry of your officers and seamen against such disparity of force? your little navy must fall immediately, or be driven from the ocean. some gentlemen indulge great expectations from privateers; but has great britain any unarmed or unprotected trade which they can attack? privateers have no other object than plunder and booty. they avoid armed vessels--and, defended as is the british commerce in every part of the world by her great naval force, it is little to be expected that privateering will be attended with much success or encouragement. but while we are searching for the means of annoying the commerce of britain, does it become us to overlook at this moment the condition of our own? a valuable part of the trade from beyond the cape of good hope has not yet arrived. of the numberless vessels which sailed upon the eve of the embargo, few have returned. your merchant vessels are without convoy and utterly defenceless. your condition, therefore, is, that with more commerce exposed, your adversary will possess greater means of annoyance, and the consequence must be, that we shall lose infinitely more than we can expect to gain. under such circumstances, what should hurry us into the war? are gentlemen afraid if they wait till november the world will not last long enough to afford them time to gratify in war their mighty resentment against britain? he believed, as he hoped, that there was no honorable gentleman on the floor who would not live long enough to have a complete surfeit of the war, though it should be postponed for a few months. the question on postponement was determined in the negative--yeas , nays . on motion, by mr. bayard, to postpone the further consideration of the bill to the third day of july next, it was determined in the negative--yeas , nays . on motion by mr. bayard, to postpone the further consideration of the bill to monday next, it was determined in the negative--yeas , nays . on motion, that the senate adjourn, it was determined in the affirmative--yeas , nays . so the senate adjourned to o'clock to-morrow. thursday, june . on motion, by mr. varnum, _resolved_, that the injunction of secrecy, in relation to the confidential message of the president of the united states of the first instant, and also in relation to the private and confidential proceedings of the senate since that date, be removed. [_end of the confidential proceedings._] friday, june . _treasury notes._ the amendment to the bill, entitled "an act authorizing the issuing of treasury notes," was reported by the committee correctly engrossed, and the bill was read a third time as amended. on the question, shall this bill pass as amended? it was determined in the affirmative--yeas , nays , as follows: yeas.--messrs. anderson, bibb, bradley, brent, campbell of tennessee, condit, crawford, cutts, franklin, gaillard, giles, gregg, howell, lambert, leib, reed, robinson, smith of new york, tait, taylor, turner, varnum, and worthington. nays.--messrs. bayard, dana, german, gilman, goodrich, hunter, lloyd, and pope. sunday, july . _volunteers bill._ the amendment to the bill, entitled "an act supplementary to the act, entitled 'an act authorizing the president of the united states to accept and organize certain volunteer military corps,'" having been reported by the committee correctly engrossed, the bill was read a third time as amended. on the question, shall this bill pass as amended? it was determined in the affirmative--yeas , nays , as follows: yeas.--messrs. anderson, bibb, brent, condit, crawford, franklin, gaillard, giles, howell, robinson, smith of new york, tait, taylor, and varnum. nays.--messrs. bayard, gilman, goodrich, leib, lloyd, and smith of maryland. so it was resolved, that this bill pass with an amendment. monday, july , _ o'clock, p.m._ _recess of congress, and adjournment._ the senate proceeded to consider the resolution from the house of representatives for the appointment of a joint committee to wait on the president of the united states, and notify him of the intended recess, and concurred therein, and messrs. robinson and anderson were appointed a committee on the part of the senate. the following message was received from the president of the united states: _to the senate of the united states_: i transmit to the senate copies and extracts of documents in the archives of the department of state, falling within the purview of their resolution of the fourth instant, on the subject of british impressments from american vessels. the information, though voluminous, might have been enlarged with more time for research and preparation. in some instances it might, at the same time, have been abridged, but for the difficulty of separating the matter extraneous to the immediate object of the resolution. july , . james madison. the message and documents were read, and ordered to be printed for the use of the senate. a message from the house of representatives informed the senate, that the house, having finished the business before them, are about to adjourn. mr. robinson, from the committee, reported that they had waited on the president of the united states, who informed them that he had no further communications to make to the two houses of congress. _ordered_: that the secretary inform the house of representatives that the senate, having finished the legislative business before them, are about to adjourn. agreeably to the joint resolution, the president then adjourned the senate, to meet on the first monday in november next. _executive proceedings._ [confidential.] saturday, june , . a message from the house of representatives, by mr. harper and mr. fisk, two of their members--mr. harper, chairman. _mr. president_: the house of representatives have passed a "resolution authorizing the president of the united states to issue a proclamation to the inhabitants of the british american continental provinces," in which they request the concurrence of the senate. the resolution was read, as follows: _resolved by the senate and house of representatives of the united states of america, in congress assembled_, that in case it shall be deemed necessary, in order to vindicate the just rights, or to secure the safety of the united states, to invade the provinces of upper and lower canada, nova scotia, and new brunswick, or either of them, the president of the united states be, and he hereby is authorized and empowered to issue a proclamation, addressed to the inhabitants of said provinces, assuring them, in the name of the people of these states, that in case the said provinces, or any of them, shall come into the possession of this government, the inhabitants of such province or provinces shall be secured and protected in the full enjoyment of their lives, liberty, property, and religion, in as full and ample manner as the same are secured to the people of the united states by their constitutions; and that the said proclamation be promulgated and circulated, in the manner which, in the opinion of the president, shall be best calculated to give it general publicity. _ordered_, that the resolution pass to a second reading. friday, june . _occupation of the floridas._ a message from the house of representatives by messrs. mitchill and hall, two of their members. _mr. president_: the house of representatives have passed a bill, entitled "an act authorizing the president to take possession of a tract of country lying south of the mississippi territory and of the state of georgia, and for other purposes," in which they request the concurrence of the senate, and that the bill be considered confidentially. the bill last brought up for concurrence was read, as follows: "an act authorizing the president to take possession of a tract of country lying south of the mississippi territory and of the state of georgia, and for other purposes. "_be it enacted by the senate and house of representatives of the united states of america in congress assembled_: that the president be, and he is hereby authorized to occupy and hold, the whole or any part of east florida, including amelia island, and also those parts of west florida which are not now in possession and under the jurisdiction of the united states. "sec. . _and be it further enacted_: that, for the purpose of occupying and holding the country aforesaid, and of affording protection to the inhabitants, under the authority of the united states, the president may employ such parts of the military and naval force of the united states as he may deem necessary. "sec. . _and be it further enacted_: that, for defraying the necessary expenses, one hundred thousand dollars are hereby appropriated, to be paid out of any moneys in the treasury not otherwise appropriated, and to be applied to the purposes aforesaid, under the direction of the president. "sec. . _and be it further enacted_: that, until further provision shall be made by congress, the president shall be, and he hereby is empowered to establish within the country he may acquire by this act, a temporary government, the civil and military authorities of which shall be vested in such person and persons as he may appoint, and be exercised in such manner as he may direct: _provided_: that he shall take due care for the preservation of social order, and for securing to the inhabitants the enjoyment of their personal rights, their religion, and their property: _and provided, also_: that the section of country herein designated, that is situated to the eastward of the river perdido, may be the subject of further negotiation." _ordered_: that it pass to a second reading. thursday, july . agreeably to the order of the day, the bill, entitled "an act authorizing the president to take possession of a tract of country lying south of the mississippi territory and of the state of georgia, and for other purposes," was resumed, and considered as in committee of the whole; and mr. gaillard was requested to take the chair. on motion by mr. crawford, he was permitted to amend his motion, made yesterday, as follows: "_and be it further enacted_: that if the united states, in the prosecution of the present war against the united kingdom of great britain and ireland, should obtain possession of the british provinces in north america, or either of them, that the president of the united states be, and he is hereby authorized and empowered to establish within the same a temporary government; and the military, civil, and judicial powers thereof, shall be vested in such person and persons, and be exercised in such manner as he may direct, for the protection and maintenance of the inhabitants of such province or provinces, in the full enjoyment of their property, liberty, and religion: _provided_: that the principles upon which such temporary government shall be established, shall form no obstacle to the restoration of peace between the two nations." and, on motion to agree to the amendment, it was determined in the affirmative--yeas , nays , as follows: yeas.--messrs. anderson, bibb, bradley, brent, campbell of tennessee, condit, crawford, cutts, franklin, gaillard, giles, howell, leib, pope, robinson, tait, taylor, turner, varnum, and worthington. nays.--messrs. bayard, german, gilman, goodrich, horsey, hunter, lambert, lloyd, smith of maryland, and smith of new york. on motion, by mr. tait, to amend the bill as follows: "_and be it further enacted_: that this act be not printed or published, unless directed by the president of the united states; any law or usage to the contrary notwithstanding." on the question to agree to this amendment, it was determined in the affirmative--yeas , nays , as follows: yeas.--messrs. anderson, bayard, bibb, bradley, brent, campbell of tennessee, condit, crawford, cutts, franklin, gaillard, giles, howell, leib, pope, robinson, smith of maryland, smith of new york, tait, taylor, turner, varnum, and worthington. nays.--messrs. german, gilman, goodrich, horsey, hunter, lambert, and lloyd. the president resumed the chair, and mr. gaillard reported the bill, amended. on the question: shall this bill pass to a third reading, as amended? it was determined in the affirmative--yeas , nays , as follows: yeas.--messrs. anderson, bibb, brent, campbell of tennessee, condit, crawford, gaillard, howell, leib, robinson, tait, taylor, turner, varnum, and worthington. nays.--messrs. bayard, dana, franklin, german, gilman, goodrich, horsey, hunter, lambert, lloyd, pope, smith of maryland, and smith of new york. friday, july . the amendments to the bill, entitled "an act authorizing the president to take possession of a tract of country lying south of the mississippi territory and of the state of georgia, and for other purposes," were reported by the committee correctly engrossed; and the bill was read the third time, as amended. on motion, by mr. bayard, to postpone the further consideration thereof to the first monday in november next; it was determined in the negative--yeas , nays , as follows: yeas.--messrs. bayard, bradley, dana, german, giles, gilman, goodrich, horsey, hunter, lambert, lloyd, pope, smith of maryland, and smith of new york. nays.--messrs. anderson, bibb, brent, campbell of tennessee, condit, crawford, franklin, gaillard, howell, leib, robinson, tait, taylor, turner, varnum, and worthington. on the question, shall this bill pass as amended? it was determined in the negative--yeas , nays , as follows: yeas.--messrs. anderson, bibb, brent, campbell of tennessee, condit, crawford, franklin, gaillard, robinson, tait, taylor, turner, varnum, and worthington. nays.--messrs. bayard, bradley, dana, german, giles, gilman, goodrich, horsey, howell, hunter, lambert, leib, lloyd, pope, smith of maryland, and smith of new york. so it was _resolved_, that the senate do not concur in the said bill. footnotes: [ ] list of members of the senate. _new hampshire._--nicholas gilman, charles cutts. _massachusetts._--joseph b. varnum, james lloyd. _rhode island._--jeremiah b. howell, william hunter. _connecticut._--chauncey goodrich, samuel w. dana. _vermont._--stephen r. bradley, jonathan robinson. _new york._--john smith, obadiah german. _new jersey._--john condit, john lambert. _pennsylvania._--andrew gregg, michael leib. _delaware._--outerbridge horsey, james a. bayard. _maryland._--samuel smith, philip reed. _virginia._--william b. giles, richard brent. _north carolina._--jesse franklin, james turner. _south carolina._--john gaillard, john taylor. _georgia._--william h. crawford, charles tait. _kentucky._--john pope, george m. bibb. _tennessee._--joseph anderson, george w. campbell. _ohio._--thomas worthington, alexander campbell. twelfth congress.--first session. proceedings and debates in the house of representatives.[ ] monday, november , . this being the day appointed by a proclamation of the president of the united states, of the twenty-fourth day of july last, for the meeting of congress, the following members of the house of representatives appeared, produced their credentials, and took their seats, to wit: _from new hampshire_--josiah bartlett, samuel dinsmoor, obed hall, john a. harper, and george sullivan. _from massachusetts_--ezekiel bacon, abijah bigelow, elijah brigham, william ely, isaiah l. green, josiah quincy, william reed, ebenezer seaver, samuel taggart, peleg tallman, charles turner, junior, laban wheaton, and leonard white. _from rhode island_--richard jackson, junior. _from connecticut_--epaphroditus champion, john davenport, junior, lyman law, jonathan o. mosely, timothy pitkin, junior, lewis b. sturges, and benjamin tallmadge. _from vermont_--martin chittenden, james fisk, samuel shaw, and william strong. _from new york_--daniel avery, harmanus bleecker, thomas b. cooke, james emott, asa fitch, thomas r. gold, robert le roy livingston, arunah metcalf, samuel l. mitchill, benjamin pond, peter b. porter, ebenezer sage, thomas sammons, silas stow, uri tracy, and pierre van cortlandt, junior. _from new jersey_--adam boyd, lewis condit, jacob hufty, james morgan, and thomas newbold. _from pennsylvania_--william anderson, david bard, robert brown, william crawford, roger davis, william findlay, john m. hyneman, joseph lefevre, aaron lyle, james milnor, william piper, jonathan roberts, william rodman, adam seybert, john smilie, george smith, and robert whitehill. _from delaware_--henry m. ridgely. _from maryland_--stevenson archer, joseph kent, peter little, alexander mckim, samuel ringgold, and robert wright. _from virginia_--burwell bassett, james breckenridge, william a. burwell, matthew clay, john dawson, peterson goodwyn, aylett hawes, john p. hungerford, joseph lewis, junior, william mccoy, hugh nelson, thomas newton, james pleasants, junior, john randolph, john roane, daniel sheffey, john smith, and thomas wilson. _from north carolina_--willis alston, william blackledge, thomas blount, william r. king, nathaniel macon, joseph pearson, israel pickens, and richard stanford. _from south carolina_--william butler, langdon cheves, elias earle, william lowndes, thomas moore, and david r. williams. _from georgia_--william w. bibb, howell cobb, bolling hall, and george m. troup. _from kentucky_--henry clay, joseph desha, richard m. johnson, samuel mckee, anthony new, and stephen ormsby. _from tennessee_--felix grundy, and john rhea. _from ohio_--jeremiah morrow. _from mississippi territory_--george poindexter, _delegate_. _from indiana territory_--jonathan jennings, _delegate_. and a quorum, consisting of a majority of the whole number of members, being present, the house proceeded, by ballot, to the choice of a speaker; and, upon examining the ballots, it appeared that henry clay, one of the representatives for the state of kentucky, was duly elected; whereupon, mr. clay was conducted to the speaker's chair, and the oath to support the constitution of the united states, as prescribed by the act, entitled "an act to regulate the time and manner of administering certain oaths," was administered to him by mr. findlay, one of the members for the state of pennsylvania; after which, he made his acknowledgments to the house, in the following words: "gentlemen: in coming to the station which you have done me the honor to assign me--an honor for which you will be pleased to accept my thanks--i obey rather your commands than my own inclination. i am sensible of the imperfections which i bring along with me, and a consciousness of these would deter me from attempting a discharge of the duties of the chair, did i not rely, confidently, upon your generous support. should the rare and delicate occasion present itself, when your speaker shall be called upon to check or control the wanderings or intemperance in debate, your justice will, i hope, ascribe to its interposition the motives only of public good and a regard to the dignity of the house. and in all instances, be assured, gentlemen, that i shall, with infinite pleasure, afford every facility in my power to the despatch of public business, in the most agreeable manner." the oath or affirmation to support the constitution of the united states was then administered, by the speaker, to all the other members present. george poindexter, and jonathan jennings, having also appeared, and produced their credentials as the delegates from the mississippi and indiana territories of the united states, the oath was administered to them by the speaker. the house proceeded, by ballot, to the choice of a clerk, and, upon examining the ballots, it appeared that patrick magruder was duly elected, and the oath, together with the oath of office, administered by the speaker to the clerk. thomas dunn was then re-elected sergeant-at-arms, and thomas claxton, doorkeeper, without opposition. benjamin burch was also chosen assistant doorkeeper. the usual messages were interchanged with the senate on the subject of their being formed and ready to proceed to business. mr. mitchill and mr. pitkin were appointed a committee on the part of the house, jointly with the committee appointed on the part of the senate, to wait on the president of the united states, and inform him that a quorum of the two houses is assembled, and ready to receive any communications he may be pleased to make to them. mr. mitchill, from the joint committee appointed to wait on the president of the united states, reported that the committee had performed the service assigned to them, and that the president answered, that he would make a communication to congress to-morrow at twelve o'clock. tuesday, november . several other members, to wit, abner lacock, from pennsylvania; john baker, from virginia; and richard wynn from south carolina, appeared, produced their credentials, were qualified, and took their seats. on motion of mr. newton, the clerk of the house was directed to procure newspapers from any number of offices that the members may elect, provided that the expense do not exceed the amount of three daily papers. a message was received from the president of the united states, by mr. edward coles; his secretary, who delivered the same and withdrew. [for which see senate proceedings of this date, _ante_ page .] the message having been read, and the documents accompanying it in part, an adjournment was called for, and carried. wednesday, november . two other members, to wit: meshack franklin, from north carolina, and john c. calhoun, from south carolina, produced their credentials, were qualified, and took their seats. thursday, november . another member, to wit, lemuel sawyer, from north carolina, appeared, produced his credentials, was qualified, and took his seat. friday, november . another member, to wit, john sevier, from tennessee, appeared, produced his credentials, was qualified, and took his seat. monday, november . several other members, to wit: william widgery, from massachusetts; george c. maxwell, from new jersey; and philip b. key, and philip stuart, from maryland, appeared, produced their credentials, were qualified, and took their seats. tuesday, november . _select committees._ all the select committees which were thought necessary, being appointed, it was determined that the first, on foreign relations, should consist of nine members; the committee on the spanish colonies and navy concerns, to consist of seven members; and those on manufacturing cannon and indian affairs, to consist of five members. the resolutions, as amended, are in the following words: . _resolved_, that so much of the president's message as relates to the subject of our foreign relations, be referred to a select committee. . _resolved_, that so much of the president's message as relates to filling the ranks and prolonging the enlistments of the regular troops, and to an auxiliary force; to the acceptance of volunteer corps; to detachments of militia, and to such a preparation of the great body as will proportion its usefulness to its intrinsic capacity, be referred to a select committee. . _resolved_, that those parts of the message of the president which relates to the naval force of the united states, and to the defence of our maritime frontier, be referred to a select committee. . _resolved_, that so much of the president's message as relates to the revenue and the provisions necessary for the service of the ensuing year, be referred lo the committee of ways and means. . _resolved_, that so much of the president's message as relates to the evasion and infraction of our commercial laws, be referred to the committee of commerce and manufactures. . _resolved_, that so much of the president's message as relates to foreign trading licenses, and to the protection of manufactures and navigation, be referred to the committee of commerce and manufactures. . _resolved_, that so much of the president's message as relates to the spanish american colonies, be referred to a select committee. . _resolved_, that so much of the said message as relates to the manufacture of cannon and small arms, and the providing munitions of war, be referred to a select committee. . _resolved_, that so much of the said message as relates to indian affairs, be referred to a select committee. mr. porter, mr. calhoun, mr. grundy, mr. smilie, mr. randolph, mr. harper, mr. key, mr. desha, and mr. seaver, were appointed the committee on the first resolution. mr. williams, mr. wright, mr. macon, mr. nelson, mr. stow, mr. maxwell, and mr. tallmadge, were appointed the committee on the second resolution. mr. cheves, mr. newton, mr. milnor, mr. quincy, mr. cooke, mr. mckim, and mr. fisk, were appointed the committee on the third resolution. mr. mitchill, mr. bibb, mr. blackledge, mr. taggart, mr. champion, mr. butler, and mr. shaw, were appointed the committee on the seventh resolution. mr. seybert, mr. little, mr. goodwyn, mr. tracy, and mr. sturges, were appointed the committee on the eighth resolution. mr. mckee, mr. sevier, mr. morrow, mr. sheffey, and mr. brown, were appointed the committee on the ninth resolution. and then, on motion the house adjourned until to-morrow. wednesday, november . another member, to wit, thomas gholson, from virginia, appeared, produced his credentials, was qualified, and took his seat. _matthew lyon's claim for refunding his fine under the sedition act._ the speaker presented a memorial of matthew lyon, of kentucky, stating that, whilst a member of the house of representatives of the united states, from the state of vermont, he was illegally tried and found guilty, under a charge of sedition, and fined the sum of one thousand dollars, and imprisoned twelve months, and praying that the said fine may be repaid, with interest, together with his pay as a member of congress, which was withheld during his confinement. the petition being read, mr. new moved that it be referred, with the accompanying documents, to the committee of claims. mr. bassett was opposed to this reference. if the petitioner had any claim upon the united states, it must be on the ground that the law under which he was convicted was unconstitutional. a claim of this kind could not be recognized by that committee. he thought, therefore, it would be more proper to refer this petition to a select committee. this was desirable, also, from the consideration that the committee of claims is generally overburdened with business. mr. new said, it having been represented to him that it would be most proper to refer the petition to a select committee, he would so change his motion. mr. randolph had no doubt it would be recollected, that at the first session of congress under the administration of the present president, the session which met in may, , a committee was raised "to inquire whether any and what prosecutions had been instituted before the courts of the united states for libels at common law, and to report such provisions as in their opinion may be necessary for securing the freedom of speech and of the press." congress adjourned after a short session in june. the chairman of that committee was directed to address letters to the clerks of the several courts in which such prosecutions had been commenced. to some of these letters answers were received after the adjournment. these answers received in the recess (all except one, which the chairman had found amongst his private papers since the meeting of the present session) were transmitted to the clerk of this house, in whose possession it is presumed they now are. the chairman of that committee, at the two succeeding sessions, was, by the visitation of god, and from circumstances without his control, for the first time since he had the honor of a seat on this floor, prevented from attending to his duty till the sessions had considerably advanced, otherwise he would have felt it obligatory on him to have called the attention of congress to this subject. it was his intention, at the present session, without knowing any thing of this petition, to have called the attention of the house to it, amongst others, at an early day. he thought it behooved this house, as the guardian of the public purse and public weal, to take care that the stream of public justice be preserved pure and free from pollution; and whether persons have suffered by prosecutions under the sedition law, or under the common law of england--not the common law of the united states, as modified by the laws of the united states in their corporate capacity--he was for affording them relief. he wished to see if any of our citizens had received injury from prosecutions of this kind; and, if they had to redress the wrong by such a prospective measure as may prevent a recurrence of similar mischief. it seems idle, said mr. r., for any man to undertake, by statute, to do that which the great charter of our confederation has endeavored to do in vain. it is, it appears, impossible to prevent men, heated by party, and seeking only the gratification of their own passions, from trampling in the dust the charter which we have sworn to support; for though our constitution has said, in the broadest terms which our language knows, that the freedom of speech and of the press shall not be abridged, men have been found so lost to all sense of their country's good, as to pass the act, commonly called the sedition act, and to send out our judges to dispense, not law, but politics from the bench. it would seem idle to attempt to prevent, by statutory provisions, similar abuses. but though, formed as we are, we cannot attain perfection, we ought, in imitation of a divine example, to aspire to it, and endeavor to preserve in purity the great magna charta of our country. this subject, mr. r. said, might appear frivolous to others. he knew that men, intent on worldly things, with their snouts grovelling in the mud, who hold every thing but sordid pelf, and still more disgraceful office, as dross and dust, would not think it worth while to attend to things of this kind. nor did he wish to set himself up for a political pharisee, and thank god that he was not as other men are. mr. r. moved to amend the reference, by adding to it the following: "with instructions to inquire whether any, and what, prosecutions have been instituted before the courts of the united states for libels, under the sedition law or the common law, and by what authority; and to make such provisions as they may deem necessary for securing the freedom of speech and of the press." mr. r. hoped this amendment would be agreed to; for, said he, it is evident that when we came into power, when we succeeded to our predecessors, proper measures were not taken for purifying the violent temper of the day--for preventing the recurrence of prosecutions of this kind. he recollected having heard, at the close of the administration of the second president of the united states, one of the most beautiful pieces of declamation, from a gentleman from south carolina, which he had ever heard, in which he conjured the house to re-enact the sedition act, because, said he, we are about to surrender the government into the hands of men in whom we have no confidence, and i wish to retain this law as our shelter, because, by this, if we are prosecuted for a libel, we can give the truth in evidence. mr. r. said he listened to the gentleman, but he thought he was talking for talking's sake. he did not believe that himself believed a word of what he said. mr. r. did not suppose that a prosecution at common law, for a libel, could take place under a republican administration. he thought the gentleman was making the best apology he could for the sedition law, and that he was glad to find himself in a minority on his motion for continuing it. but, said he, experience teacheth. i find it possible even for the pharisees themselves sometimes to slide, sometimes to fall. he thought it due to our country, and to ourselves, that whatever abuses exist, without stopping to inquire whether the sufferer be a catholic or a protestant, a federalist, a democrat, or a monarchy man, to redress the wrong. what would be said in a court of justice in a case of murder? it would not be thought worth while to inquire what was the offender's politics, or whether honest or the contrary. he considered honest men as of right politics. it unfortunately happens, said he, that some men make up in zeal what they know themselves to be deficient in honor and honesty. the amendment was agreed to and the petition referred to a committee of seven, consisting of mr. new, mr. randolph, mr. wright, mr. troup, mr. whitehill, mr. mosely, and mr. cooke. thursday, november . another member, to wit, john clopton, from virginia, appeared, produced his credentials, was qualified, and took his seat. friday, november . _indian affairs._ mr. rhea proposed the following resolution for adoption: "_resolved_, that the committee on indian affairs be instructed to inquire into the expediency of extending the laws of the united states over those parts of the states and territories of the united states, to which the indian title is not extinguished, in such manner as that all white persons residing within any of the said parts of the united states may and shall be liable to the operation of those laws." mr. r. added, that if the petitions which had this morning been presented by the gentleman from north carolina had been read, the necessity of taking some measure similar to the one which he proposed, would have been evident to every member of the house, as the indian countries are become an asylum for persons guilty of every enormity. mr. pickens stated, that if any doubt existed as to the propriety of passing this resolution, he would call for the reading of the petitions which he had presented. mr. wright had some doubts whether the laws of the united states did not at present extend to cases of this kind, and wished the resolution to lie on the table until the subject could be looked into. mr. bibb said, a case had lately occurred in the state of georgia, which showed the necessity of some farther provision on this subject. a murder of a most atrocious kind had been committed within the indian country; the parties were taken near the spot, and brought before the federal authority in georgia; and upon a question of jurisdiction, the judges decided that the court had no authority in the case. in a similar instance, the offenders were brought before the state authorities, which determined in the same way, and the offenders, of course, were in both cases discharged. mr. grundy was of opinion that the united states courts had, at present, complete jurisdiction of all criminal cases which might arise within the indian boundary, the case cited by the gentleman from georgia notwithstanding; but he supposed the object of this resolution was to supply the defects of the law at present in civil cases. mr. poindexter had no doubt but the courts of the united states had jurisdiction of criminal offences, committed within the indian boundary. congress, at their first session, made provision for the punishment of offenders charged with murder, piracy, &c., committed on the high seas or without the territory of the united states. but the difficulty suggested by the gentleman from tennessee existed. persons who have committed petty offences and debtors go over to the indian territory, where the law cannot reach them. he doubted whether the resolution was calculated to reach this object, and therefore wished it to lie on the table that it might be amended. mr. rhea hoped he might be permitted to judge for himself whether the resolution which he had offered was calculated to accomplish the object which he had in view. his colleague had intimated that the laws, at present, extend to criminal offences, though the gentleman from georgia had stated a case in which the judges had determined otherwise. this shows, at least, that the law wants revision, not only with respect to criminal, but civil matters. he had drawn the resolution in the most general terms. mr. bibb could not conceive how the judges of the federal court, in the case he had cited, could have decided as they did with the law which had been referred to before them. perhaps it might have arisen from a clause of the constitution, which directs that jurors shall be drawn from the district where the offence is committed. the resolution was laid on the table. _domestic manufactures._ mr. rhea called up for consideration the resolution which he laid upon the table yesterday, proposing an additional duty on coarse hemp and flax. the resolution was considered, and, on motion, the words "and cotton," were added to it, by consent of the mover. mr. grundy observed, that several detached resolutions for the encouragement of domestic manufactures had been offered to the house. he wished the adoption of a proposition which should include all the manufactures of the country. he hoped the present motion might lie on the table for a few days, until such a proposition could be prepared. it is, said he, an object of great magnitude, when we consider the vast sums of money which have lately been vested in establishments of this kind; and the present is a favorable moment for adopting some measures to give our manufactures countenance and support. mr. rhea could not agree to the proposed postponement. he should never obtain his object, if he were to agree to one postponement after another. his colleague could, at any time, submit his proposition, without hindering the progress of the one he had introduced. after some conversation as to the propriety of discussing this proposition in the house, the speaker decided, that though there is a rule of the house which says that all propositions for laying a tax shall be discussed in committee of the whole; this resolution, in his opinion, did not come within that rule, as it was merely an instruction to a committee to inquire into the expediency of laying an additional tax. the motion, for laying the proposition on the table, was carried, to . _american seamen._ mr. milnor rose, and observed there was no topic more important than the protection of american seamen, and yet he believed it would be acknowledged by all who have given consideration to the subject, that our laws on this subject are materially defective. the object of these laws ought to be twofold; in the first place, for the protection of _bona fide_ american citizens, and secondly, for the prevention of the abuse of those protections by citizens of other countries not entitled to them. it will be recollected, that the act for relief of american seamen makes it the duty of the collectors to furnish certificates of citizenship in the manner therein directed; but, owing to an error of congress, no manner is prescribed; and, of course, the collectors have been left to accept of such proof as they deemed sufficient, or to act under the directions of the secretary of the treasury, which, in most instances, is an unsafe way of proceeding. the penal laws of the united states provide no punishment for the crime of perjury in these cases. a recent instance, mr. m. said, had occurred in the district which he represented. an italian, not twenty days in the country, appeared before a notary public, claiming the rights of an american seaman. he made the necessary oaths, and produced a sponsor who swore that he was born in baltimore. the tongue of the man detected the falsehood. the collector, with that attention to his duty for which he is so remarkable, had both seaman and sponsor apprehended. the attorney for the district looked into the case, and found the crime of perjury to be, the falsely taking an oath according to the laws of the united states; but, as the law was defective, as above stated, the offence was not perjury. the attorney-general confirmed this opinion. the offenders, therefore, escaped punishment. he believed other amendments might be usefully made to the law on this subject. he concluded by offering the following resolution for adoption, which was agreed to: "_resolved_, that a committee be appointed to inquire and report whether any, and what amendments are necessary to the laws of the united states relating to the protection of american seamen; and that the committee have leave to report by bill or otherwise." mr. milnor, mr. little, mr. reed, mr. bassett, and mr. pitkin, were appointed the committee. monday, november _expenditure of public money._ mr. randolph asked for the consideration of the resolution which he laid on the table some days ago, directing the appointment of a committee to inquire into the expenditure of public money; which, being agreed to, mr. r. trusted there would be no difference of opinion as to the propriety of agreeing to this resolution. but, before the vote was taken, he would state to the house, by way of explanation, the result of a former inquiry. at the first session of the th congress, a report of a committee was made, in part, on this subject. [this report mr. r. read. it states that, owing to the shortness of the session, complete information on the subject could not be obtained.] as the session lasted but six weeks, the committee had no reason to complain that the information required was not obtained. an expectation was entertained that it would be given at the next session. but the committee have reason to complain that the information which was given was altogether different from that which was asked. this was represented to the departments, and a more satisfactory report was promised at the ensuing session. mr. r. said, the course pursued at the first session, under the present president, had been the same which was adopted at the close of mr. adams's administration. at the following session of congress, the person who was appointed chairman of the committee of the first session, was unable to attend; but it was a gratification to him to find, that the subject was taken up by an honorable colleague of his, to whom the state of virginia had been more than once indebted for the luminous reports on her fiscal concerns; but nothing was effected. to show how different the information received was, from that asked for, mr. r. proposed to read a short letter. the object of the committee was, to know in what way the pursers of the navy received their money, and what was the amount of their emoluments. the answer they received, stated "that the advances made to pursers are by warrants drawn on the treasury, sometimes by navy agents," &c. we inquired, said he, what were their emoluments, other than those allowed by law? answer: "they arise from a certain percentage upon _slops_ detailed to the seamen." it may not be amiss, said mr. r., to inform country gentlemen that, by _slops_, are meant ready-made clothing, &c. it was scarcely possible to have given a more evasive answer. we asked, what were the emoluments? they answer, "a certain percentage fixed by the department;" but what that per cent. was, the committee was left to find out by instinct. it had been understood that large sums of money were advanced to these pursers, who laid it out in slops, which they retailed to the seamen at an advance, in some instances, of twenty per cent.! this was a fact, mr. r. said, which ought to be looked into. it was essential to the reputation of the government, essential to its honor, indispensable to the fair fame of those who administer the finances of the united states, that abuses, such as these, should be probed to the quick, to show to the world that, if we cannot govern the great beasts, the mammoths of the forest, we can, at least, poison the _rats_. and whose money, asked mr. r., is this? it is the people's money; it comes from the pockets of the people of the united states. when he spoke of this abuse of public money, he wished no gentleman to understand him as speaking of the abuse under this, that, or the other president of the united states. he considered them all as of one description of people; and it was not less necessary to guard against abuses in a country where the president is elected by the people, than in a country where he is put over them. he would dare to question the infallibility of all, and look upon all with jealousy and distrust. he wished not, however, to be charged with that mistaken opposition to the government, which determines to exhibit abuses for the sake of doing so; or with shutting his eyes to the abuses of _thomas_, while they are open to the abuses of _john_. mr. r. said he had no interest distinct from the interest of his country. with respect to princes and potentates, the only favor he had to ask of them was, that they would keep their hands out of his pocket and off his person, and, to use a homely phrase, "if they would let him alone, he would let them alone." under these circumstances, mr. r. asked the house if it were not necessary for a committee to be appointed to probe into this business? he wished to state, before he sat down, that he had learnt, soon after the present secretary of the navy came into office, the percentage of the pursers was reduced from twenty to four or five per cent. the resolution was unanimously agreed to, and a committee of seven appointed, as follows: messrs. randolph, gold, mckim, roberts, johnson, law, and widgery. tuesday, november . _territory of louisiana._ on motion of mr. rhea, the house went into a committee of the whole, on the bill for the government of the territory of louisiana. the bill being read by paragraphs, mr. fisk moved to strike out the words in the fifth section of the bill, which makes it necessary for persons to be in possession of a freehold to have a right to vote. this motion was opposed by mr. randolph, on principle, in a speech of considerable length, in which he advocated the freehold qualification for voters. the motion was opposed also by mr. rhea, as unnecessary for the attainment of the mover's object; as he stated the qualification for voters was twofold--one was the possession of a freehold, the other a residence of a year previous to the time of election. mr. poindexter made a motion, which superseded that of the gentleman from vermont, to strike out all that part of the section which defined the qualification of voters, and insert, "every free white male citizen residing in the said territory, who shall have attained the age of twenty-one years, and paid a tax." this amendment was debated till the usual hour of adjournment, when the committee rose without taking the question, and obtained leave to sit again. this debate, though protracted to considerable length, embraced a very narrow question, viz: whether it is better to require voters to hold freehold property, or to suffer every man to possess the privilege of voting who has arrived to the age of twenty-one years. as already stated, mr. randolph took the first ground, and introduced the practice of virginia to show that it was attended with the best effects. mr. fisk, mr. wright, mr. smilie, and mr. poindexter, took the opposite side of the question. they argued that life and liberty are superior to property--that these are dearer to the poor man than all the property of the rich. mr. wright said, that the state of maryland had tried the property qualification for voting, had found it attended with bad effects, and had now abandoned it. it was formerly required that a voter should be possessed of property to the value of thirty pounds; so that if a man possessed a horse of that value, he was entitled to a vote; but if the horse happened to die before the election, he lost his privilege, which was placing the right in the _horse_ instead of the _man_. as to freehold qualifications, they were evaded too by deeds made for the occasion, which were afterwards cancelled. mr. randolph, in combating the principle of universal suffrage, said that it was impossible for the gentleman himself, (alluding to mr. smilie,) or any piping-hot member from a jacobin club--for any disciple of _tom paine_ or of the _devil_--to carry this principle of equality to its full extent; for even they must exclude from its operation minors and females. he also took occasion to pronounce a strong philippic against foreigners having any part in the government. mr. smilie, in his reply, paid a tribute of respect to the memory of paine, on account of his valuable political writings, which had been considered as highly serviceable in the revolution, and which would always be esteemed wherever the _rights of man_ are understood, and reminded him of the foreigners who had assisted in fighting our revolutionary battles. mr. randolph justified his allusion to paine; said he was sorry the gentleman had not recollected his "age of reason," as well as his "rights of man;" and as to any services which he rendered by his writings, he thought little of them. the heroes engaged in that great cause did not need the assistance of an english _staymaker_. in reply, mr. smilie said, he never interfered with a man's religious opinion; that was a private concern, which lay between god and a man's own conscience; and as to the profession of paine, that, he apprehended, would never lessen the value of his writings. wednesday, november . another member, to wit, archibald mcbryde, from north carolina, appeared, produced his credentials, was qualified, and took his seat. thursday, november . another member, to wit, elisha r. potter, from rhode island, appeared, produced his credentials, was qualified, and took his seat. _additional duties._ on motion of mr. rhea, the house took up for consideration the resolution which he had submitted some days ago, proposing to instruct the committee of commerce and manufactures to inquire into the expediency of laying an additional duty on coarse manufactures of hemp, flax, and cotton. this resolution produced a long desultory debate, which occupied the house the whole of the day, without coming to any decision upon it. mr. stanford, on the ground that the committee of commerce and manufactures had already this subject under consideration, moved an indefinite postponement of the resolution. this motion was negatived, to . mr. king proposed an amendment. he expressed himself friendly to the resolution of the gentleman from tennessee, and to the encouragement of domestic manufactures generally. his amendment was in the following words: "and also into the expediency of laying a duty on the importation of salt, with authority to report by bill or otherwise." mr. k. observed, that this was an article of general consumption, and its manufacture ought to be encouraged; as it was known what difficulties this country had experienced, and might again experience, when placed in a situation in which a sufficiency of salt could not be obtained. he hoped, therefore, his amendment would be agreed to. mr. smilie was afraid the house was getting into a practice that would produce great trouble and confusion, by departing from the usual and settled mode of proceeding. it had always been deemed irregular, when a subject was committed, to bring it forward in the house before the committee made its report. look at our situation, said he. a gentleman proposes a tax on manufactures of cotton, another on salt. every gentleman has his favorite manufacture which he wishes encouraged, so that an armful of resolutions will be thrown into the hands of this committee. mr. s. said he was friendly to the manufactures of our country, and was willing to give them every aid; but he did not wish, in doing this, to break through established rules. if gentlemen would suspend their remarks on the subject until the committee of commerce and manufactures make their report, they will then have a fair opportunity of delivering their sentiments fully, and of supporting such particular manufactures as they may deem of most importance to the country. he hoped that neither the amendment nor the resolution would be agreed to. mr. alston considered the gentleman from pennsylvania mistaken as to the rule and practice of the house. if the doctrine which he maintains were correct, gentlemen might be defeated in effecting the objects which they have in view. it was only to refer a subject to a committee; and if a majority of that committee were unfriendly, and either failed to report, or reported inimically, the friends of the measure might be defeated, though there were a majority in the house in its favor. it was a common practice, mr. a. said, to refer a subject generally to a committee, and afterwards instruct them, by resolution, as to particular branches of the subject. mr. newton (the chairman of the committee of commerce and manufactures) said, the subject of manufactures was considered as being generally before them, and he knew it to be the intention of the committee to take up the matter comprehensively; and if any gentleman shall think proper to give them information respecting any particular manufacture, either orally or in writing, they will be glad to receive it. mr. n. thought the gentleman from north carolina (mr. alston) was mistaken, when he said that a committee had the power of defeating the purposes of members; because, whenever a report was made, it was in the power of a majority of the house to amend it, and make it just what they please. mr. quincy was in favor of the amendment offered by the gentleman from north carolina, (mr. king,) and thanked him for bringing it forward. some of his constituents, men who lived on the sandbanks of the country, were deeply interested in the manufacture of salt, and had been nearly ruined by the repeal of the duty on that article. he was friendly to a duty on salt, as it was more equal and less felt in the payment than any other, and he had always thought it strange that the duty had been repealed. mr. macon thought the proposition to tax this necessary of life, at a time when it is probable we may find a difficulty in procuring it in sufficient quantity, was very ill-timed. the repeal of this duty had been called strange. he thought it would have been more strange had congress continued the duty when the treasury was not in need of the money arising from it. if there was any thing strange in the business, it was that there should have been any opposition to the repeal. mr. m. agreed with the remark made by a gentleman from massachusetts some days ago, that taxes, to be just, ought to be equal. would a tax on salt, he asked, be equal? it certainly would not. people on the seacoast would not feel it. their cattle would refuse it, if given to them. the interior of the country, the people from east to west, would have to bear the weight of this tax. but the gentleman from massachusetts says the repealing of this duty ruined his constituents, who live on the sandbanks of the country. he would not consent, however, to tax the people of his part of the country, living on sandhills, to support that gentleman's sandbank constituents. but this duty, it is said, is to be laid to encourage manufactures. why this great cry about domestic manufactures? he thought they had already sufficient encouragement from the present situation of things. the president had recommended the subject to the consideration of the house, and he had no doubt the committee, to whom it had been referred, would do what is proper on the subject. mr. m. wished to know for what purpose this additional duty is wanted. if, said he, it be wanted for going to war, let us know it. for his part, he had heard so much about war formerly, that he hardly thought we should get at it now. mr. m. said on a former occasion, when the country was in a situation something like the present, a gentleman from virginia was so alarmed lest salt sufficient could not be had, that he proposed a bounty on its importation. what, said mr. m., will be the effect of a proposition for taxing salt in the country? he had no doubt that, in the southern states, it would immediately raise the price of the article at petersburg and fayetteville. on this account, he hoped, if the house did not mean to lay a tax on salt, that the proposition would be immediately discarded. for himself, he would sooner consent to a land or poll tax than a tax on salt. mr. smilie moved a postponement of the resolution until the first monday in february next. this motion was debated at some length. some who wished to vote for it, wished the proposition for a tax on salt to be disconnected with the original proposition. friday, november . another member, to wit, edwin gray, from virginia, appeared, produced his credentials, was qualified, and took his seat. _apportionment of representatives._ on motion of mr. dawson, the house resolved itself into a committee of the whole, on the bill for apportioning the representatives among the several states, according to the third enumeration. the bill having been read, the question on filling the blanks occurred. the first was in relation to the number of inhabitants for each representative; when mr. dawson observed, that he was instructed by the committee who directed him to report this bill, to propose filling the blank with the words _forty thousand_; but he should himself vote against filling the blank with this number, because it would deprive the state of rhode island of one-half of her present representatives; it would deprive connecticut and maryland each of one member, and virginia of two. he should, therefore, be in favor of filling the blank with , , as this number would not deprive any state of a representative, and it would only increase the present number of representatives from to . mr. dawson then moved, that the said blank be filled with the words "thirty-seven thousand;" and the question thereon being taken, was resolved in the affirmative--yeas , nays . mr. dawson moved to fill the other blanks in the bill, as follows: new hampshire, five members; massachusetts, eighteen; vermont, five; rhode island, two; connecticut, seven; new york, twenty-five; new jersey, six; pennsylvania, twenty-one; delaware, one; maryland, nine; virginia, twenty-two; north carolina, thirteen; south carolina, nine; georgia, five; kentucky, ten; ohio, six; and tennessee, six. the bill was ordered to be engrossed for a third reading, and the house adjourned. monday, december . john taliaferro, who has been declared entitled to a seat in this house, as one of the members for virginia, in the place of john p. hungerford, who has been declared not entitled to a seat in this house, appeared, was qualified, and took his seat. friday, december . mr. emott presented a petition of harrison and lewis, of the city of new york, merchants, praying permission to import from the british west india islands, goods to the amount of debts owing to them by certain inhabitants in said islands.--referred to the committee of commerce and manufactures. mr. smilie presented a memorial of the president and managers of the union canal company of pennsylvania, praying the aid and patronage of the general government in accomplishing the extensive and useful works in which they are engaged; which was read, and referred to a select committee. messrs. smilie, ridgely, ringgold, baker, and bleecker, were appointed the committee. a message from the senate informed the house that the senate _insist_ on their amendments, disagreed to by this house, to the bill "for the apportionment of representatives among the several states according to the third enumeration;" agree to the proposed conference, and have appointed managers on their part at the same. _foreign relations._ the house resolved itself into a committee of the whole on the state of the union, to which committee of the whole was committed the report of the committee on foreign relations, made some days ago. the report having been read-- mr. porter said that the house were probably expecting from the committee of foreign relations some explanations of their views in reporting the resolutions now under consideration, in addition to the general exposition of them contained in the report itself. the committee themselves felt that such explanations were due, inasmuch as they had only reported in part, and had intimated their intention to follow up these resolutions, should they be adopted, by the recommendation of ulterior measures. the committee, mr. p. said, after examining the various documents accompanying the president's message, were satisfied, as he presumed every member of the house was, that all hopes of accommodating our differences with great britain by negotiation must be abandoned. when they looked at the correspondence between the two governments; when they observed the miserable shifts and evasions (for they were entitled to no better appellation) to which great britain resorted to excuse the violations of our maritime rights, it was impossible not to perceive that her conduct towards us was not regulated even by her own sense of justice, but solely by a regard to the probable extent of our forbearance. the last six years had been marked by a series of progressive encroachments on our rights; and the principles by which she publicly upheld her aggressions, were as mutable as her conduct. we had seen her one year advancing doctrines, which the year before she had reprobated. he had seen her one day capturing our vessels under pretexts, which on the preceding day she would have been ashamed or afraid to avow. indeed, said mr. p., she seems to have been constantly and carefully feeling our pulse, to ascertain what potions we would bear; and if we go on submitting to one indignity after another, it will not be long before we shall see british subjects, not only taking our property in our harbors, but trampling on our persons in the streets of our cities. having become convinced that all hopes from further negotiation were idle, the committee, mr. p. said, were led to the consideration of another question, which was--whether the maritime rights which great britain is violating were such as we ought to support at the hazard and expense of a war? and he believed he was correct in stating that the committee was unanimously of the opinion that they were. the committee thought that the orders in council, so far as they go to interrupt our direct trade, that is, the carrying of the productions of this country to a market in the ports of friendly nations, and returning with the proceeds of them--ought to be resisted by war. how far we ought to go in support of what is commonly called the carrying trade, although the question was agitated in the committee, no definitive opinion was expressed. it was not deemed necessary, at this time, to express such an opinion, inasmuch as the injury we sustain by the inhibition of this trade is merged in the greater one to our direct trade. the orders in council, mr. p. said, of which there seemed now to be no prospect of a speedy repeal--certainly none during the continuance of the present war--authorized the capture of our vessels bound to and from ports where british commerce is not favorably received; and as that nation is at war with most of the civilized world, the effect was (as he understood from those who had much better information on the subject than he could pretend to) to cut up, at once, about three-fourths of our best and most profitable commerce. it was impossible that the mercantile or agricultural interests of the united states, which on the question of a right to the direct trade could never be separated, could submit to such impositions. it was his opinion, that going upon the ground of a mere pecuniary calculation, a calculation of profits and loss, it would be for our interest to go to war to remove the orders in council, rather than submit to them, even during the term of their probable continuance. but there was another point of view in which the subject presented itself to the committee, and that was as regarded the character of the country. we were a young nation, and he hoped we cherished a little pride and spirit, as well as a great deal of justice and moderation. our situation was not unlike that of a young man just entering into life, and who, if he tamely submitted to one cool, deliberate, intentional indignity, might safely calculate to be kicked and cuffed for the whole of the remainder of his life; or, if he should afterwards undertake to retrieve his character, must do it at ten times the expense which it would have cost him at first to support it. we should clearly understand and define those rights which as a nation we ought to support, and we should support them at every hazard. if there be any such thing as rights between nations, surely the people of the united states, occupying the half of a continent, have a right to navigate the seas, without being molested by the inhabitants of the little island of great britain. it was under these views of the subject that the committee did not hesitate to give it as their opinion, that we ought to go to war in opposition to the orders in council. but as to the extent of the war and the time when it should be commenced, there would of course be some diversity of sentiment in the house, as there was, at first, in the committee. that we can contend with great britain openly and even handed on the element where she injures us, it would be folly to pretend. were it even in our power to build a navy which should be able to cope with her, no man who has any regard for the happiness of the people of this country would venture to advise such a measure. all the fame and glory which the british navy has acquired at sea, have been dearly paid for in the sufferings and misery of that ill-fated people at home--sufferings occasioned in a great measure by the expense of that stupendous establishment. but without such a navy the united states could make a serious impression upon great britain, even at sea. we could have, within six months after a declaration of war, hundreds of privateers in every part of the ocean. we could harass, if not destroy, the vast and profitable commerce which she is constantly carrying on to every part of this continent. we could destroy her fisheries to the north; we could depredate upon her commerce to the west india islands, which is passing by our doors; we could annoy her trade along the coast of south america; we could even carry the war to her own shores in europe. mr. p. said he had risen merely for the purpose of explaining to the house the opinion and views of the committee in relation to the resolutions now to be discussed, and he should be satisfied if he had been so fortunate as to succeed. the question was then taken on the first resolution for filling the ranks of the present army, &c., and carried. saturday, december . _territorial government in upper louisiana._ mr. pleasants presented a remonstrance and petition of sundry inhabitants of st. louis, in the territory of louisiana, stating the many injuries and inconveniences which would result from a change in their form of government, and praying that no alteration may be made in their said form of government.--referred to the committee of the whole on the bill providing for the government of the said territory. monday, december . _foreign relations._ the house resumed the consideration of the report of the committee of foreign relations. the question being on the agreement to the second resolution, authorizing the raising an additional regular force-- mr. grundy, as a member of the committee stated his impression that this was the vital part of the report; and although he had no desire to prolong debate, invited those who were opposed to the report now to come forward and state their objections to it. mr. randolph said he was an old-fashioned politician. in the days of terror, we shrunk at standing armies; and what is the object now--defence? who? freemen who would not defend themselves. he would ask, if seven millions of americans were to be protected in their lives and liberties by ten thousand vagabonds who were fit food for gunpowder? it would be necessary to know the ulterior views of the committee on this point. it would be proper, before a vote was taken on this resolution, to know for what purpose these additional troops were wanted. the house ought not to commit itself on a question of such magnitude without detailed information. he was as much opposed to raising standing armies now, as he had been in the reign of terror. he had seen too much of the corruptions attendant on those establishments, in the course of the investigation in which he was engaged, not to disclaim all share in the creation of them. the people of the united states could defend themselves, if necessary, and had no idea of resting their defence on mercenaries, picked up from brothels and tippling houses--pickpockets who have escaped from newgate, &c., and sought refuge in this asylum of oppressed humanity. he contended that this resolution contained an unconstitutional proposition, and that the standing army now in the service of the united states was maintained in the very teeth of that part of the constitution which declares that no money for the support of a standing army should be appropriated for more than two years. he again called for information as to the object of the army now proposed to be raised; declaring, that, if the president should say they were necessary for the protection of new orleans, to be employed against the indians, or to repel incursions from canada, (although this seemed not to be much thought of,) he should not refuse to grant them. he declared the report to be a negative position, which could not be combated except to disadvantage. he wished to know the constitutional resources of the committee, and expressed a hope that the remarks he had made would draw out the talents of that body. mr. grundy.--i did not expect that the gentleman from virginia would have made any inquiries into the motives or objects of that committee of which he himself was a member. he, sir, attended faithfully to his duty, and witnessed every step the committee took. he also saw the report before it was made to this house, and must have heard the exposition of our ulterior measures, as explained by our chairman. why, then, sir, shall he now affect not to understand us? our object, by those who will listen, shall not be misunderstood. and, mr. speaker, as i have no political secrets, i feel no hesitation in declaring to you, to this house, and to the nation, the view i have taken of the subject. but before i do this, it is due to the committee that an explanation of their conduct should take place. so soon as the committee on our foreign relations was appointed, we were forcibly impressed with the serious and highly responsible station you had assigned us; to that committee, consisting of nine members only, were not only the eyes of this house but of the nation turned; and from us, in this, the most troubled season our world has ever known, was it expected that a course of measures would be recommended, calculated to protect the interests of seven millions of people. under this impression, mr. speaker, we deemed it a duty to take time for deliberation; we thought it better to encounter the charge of having acted in a tardy and dilatory way, than to take a rash step, by which this nation might be plunged into difficulties, from which it could not be easily extricated. we therefore took the necessary time to weigh the arguments both for and against the measures we have recommended; and, as far as we were able, we surveyed the consequences which were to follow from the course we proposed. we foresaw, mr. speaker, that our countrymen were to fall in the meditated conflict, and that american blood was to stream afresh. nor were we unmindful of the expenditure of public treasure. and, sir, what cost me more reflection than every thing else, was the new test to which we are to put this government. we are about to ascertain by actual experiment how far our republican institutions are calculated to stand the shock of war, and whether, after foreign danger disappeared, we can again assume our peaceful attitude, without endangering the liberties of the people. against these considerations, weighty in themselves, your committee felt themselves constrained to decide, influenced by existing circumstances of a character too imperious to be resisted: these i will enumerate before i sit down. my business at present is to address a particular portion of the members of this house--i mean, sir, the republican members--and although what i am about to say might be deemed impolitic on ordinary subjects of legislation, yet, at this time and on this occasion, it would be criminal to conceal a single thought which might influence their determination. we should now, mr. speaker, forget little party animosities, we should mingle minds freely, and, as far as we are able, commune with the understandings of each other; and, the decision once made, let us become one people, and present an undivided front to the enemies of our country. republicans should never forget that some years ago a set of men of different politics held the reins of this government, and drove the car of state; they were charged with being friendly to standing armies in times of peace, and favorable to expensive establishments; not for the purpose of opposing foreign enemies, but to encourage executive patronage, and to bring these forces to operate upon the people themselves. these measures alarmed the republicans; they remonstrated, they clamored, they appealed to the people, and by a national sentence, the men then in power were taken down from their high places, and republican men were put in their seats. if your minds are resolved on war, you are consistent, you are right, you are still republicans; but if you are not resolved, pause and reflect, for should this resolution pass, and you then become faint-hearted, remember that you have abandoned your old principles, and trod in the paths of your predecessors. according to my view of this subject, mr. speaker, we now stand on the bank; one movement more, the rubicon is passed, we are in italy, and we must march to rome. as a member of the committee, i feel no hesitation in saying, that if there be a member here, not determined to go with us to the extent of our measures, i prefer now to take my leave of him, rather than be deserted when the clouds darken, and the storm thickens upon us. this admonition i owed to candor--i have paid it, not because i doubted; my purpose is settled, my mind reposes upon it. i may be in an error. if i am, i hope my country will forgive me. from my god i shall never need it, because he knows the purity of my motives. what, mr. speaker, are we now called on to decide? it is whether we will resist by force the attempt made by that government, to subject our maritime rights to the arbitrary and capricious rule of her will; for my part i am not prepared to say that this country shall submit to have her commerce interdicted or regulated by any foreign nation. sir, i prefer war to submission. over and above these unjust pretensions of the british government, for many years past they have been in the practice of impressing our seamen from merchant vessels; this unjust and lawless invasion of personal liberty, calls loudly for the interposition of this government. to those better acquainted with the facts in relation to it, i leave it to fill up the picture. my mind is irresistibly drawn to the west. although others may not strongly feel the bearing which the late transactions in that quarter have on this subject, upon my mind they have great influence. it cannot be believed by any man who will reflect that the savage tribes, uninfluenced by other powers, would think of making war on the united states. they understand too well their own weakness, and our strength. they have already felt the weight of our arms; they know they hold the very soil on which they live as tenants at sufferance. how, then, sir, are we to account for their late conduct? in one way only; some powerful nation must have intrigued with them and turned their peaceful disposition towards us into hostilities. great britain alone has intercourse with those northern tribes; i therefore infer, that if british gold has not been employed, their baubles and trinkets, and the promise of support, and a place of refuge if necessary, have had their effect. if i am right in this conjecture, war is not to commence by sea or land, it is already begun; and some of the richest blood of our country has already been shed. yes, mr. speaker, in one individual has fallen, the honest man, the orator and the soldier.[ ] that he loved his country none can doubt--he died to preserve its honor and its fame--i mean the late commander of the cavalry; you, sir, who have often i measured your strength with his in forensic debate, can attest that he in a good degree was the pride of the western country, and kentucky claimed him as a favorite son. for his loss, with those who fell by his side, the whole western country is ready to march; they only wait for our permission; and, sir, war once declared, i pledge myself for my people--they will avenge the death of their brethren. tuesday, december . another member, to wit, james cochran, from north carolina, appeared and took his seat. _spanish american colonies._ mr. mitchill, from the committee appointed on that part of the president's message which relates to the spanish american colonies, made a report, in part, thereon; which was read and referred to a committee of the whole on the state of the union. the report is as follows: the committee to whom was referred so much of the president's message as relates to the spanish american colonies, have, in obedience to the order of the house, deliberately considered the subject before them, and directed a report, in part, to be submitted to the consideration of the house, in the form of a public declaration, as follows: whereas several of the american spanish provinces have represented to the united states that it has been found expedient for them to associate and form federal governments upon the elective and representative plan, and to declare themselves free and independent--therefore be it _resolved, by the senate and house of representatives of the united states of america in congress assembled_, that they behold with friendly interest, the establishment of independent sovereignties by the spanish provinces in america, consequent upon the actual state of the monarchy to which they belonged; that as neighbors and inhabitants of the same hemisphere the united states feel great solicitude for their welfare; and that when those provinces shall have attained the condition of nations, by the just exercise of their rights, the senate and house of representatives will unite with the executive, in establishing with them as sovereign and independent states, such amicable relations and commercial intercourse as may require their legislative authority. _foreign relations._ the order of the day being called for, the speaker observed, that the gentleman from virginia on the right of the chair was entitled to the floor. mr. randolph rose. he expressed his sense of the motive which had induced the gentleman from tennessee (mr. grundy) to move the adjournment, yesterday, and of the politeness of the house in granting it; at the same time declaring that in point of fact he had little cause to be thankful for the favor, well intended as he knew it to have been--since he felt himself even less capable of proceeding with his argument, than he had been on the preceding day. it was a question, as it had been presented to the house, of peace or war. in that light it had been argued; in no other light could he consider it, after the declaration made by members of the committee of foreign relations. without intending any disrespect to the chair, he must be permitted to say that if the decision yesterday was correct, "that it was not in order to advance any arguments against the resolution, drawn from topics before other committees of the house," the whole debate, nay, the report itself on which they were acting, was disorderly; since the increase of the military force was a subject at that time in agitation by the select committee raised on that branch of the president's message. but it was impossible that the discussion of a question broad as the wide ocean of our foreign concerns--involving every consideration of interest, of right, of happiness and of safety at home--touching in every point, all that was dear to freemen, "their lives, their fortunes, and their sacred honor!"--could be tied down by the narrow rules of technical routine. the committee of foreign relations had indeed decided that the subject of arming the militia (which he had pressed upon them as indispensable to the public security) did not come within the scope of their authority. on what ground, he had been and still was unable to see, they had felt themselves authorized (when that subject was before another committee) to recommend the raising of standing armies, with a view (as had been declared) of immediate war--a war not of defence, but of conquest, of aggrandizement, of ambition; a war foreign to the interests of this country, to the interests of humanity itself. he knew not how gentlemen, calling themselves republicans, could advocate such a war. what was their doctrine in -' , when the command of the army--that highest of all possible trusts in any government, be the form what it may--was reposed in the bosom of the father of his country, the sanctuary of a nation's love, the only hope that never came in vain! when other worthies of the revolution--hamilton, pinckney, and the younger washington--men of tried patriotism, of approved conduct and valor, of untarnished honor, held subordinate command under him! republicans were then unwilling to trust a standing army, even to his hands who had given proof that he was above all human temptation. where now is the revolutionary hero to whom you are about to confide this sacred trust? to whom will you confide the charge of leading the flower of our youth to the heights of abraham? will you find him in the person of an acquitted felon? what! then you were unwilling to vote an army where such men as had been named held high command! when washington himself was at the head--did you then show such reluctance, feel such scruples; and are you now nothing loth, fearless of every consequence? will you say that your provocations were less then than now? when your direct commerce was interdicted--your ambassadors hooted with derision from the french court--tribute demanded--actual war waged upon you! those who opposed the army then were indeed denounced as the partisans of france; as the same men--some of them at least--are now held up as the advocates of england; those firm and undeviating republicans who then dared, and now dare, to cling to the ark of the constitution, to defend it even at the expense of their fame, rather than surrender themselves to the wild projects of mad ambition! there was a fatality attending plenitude of power. soon or late some mania seizes upon its possessors--they fall from the dizzy height through the giddiness of their own heads. like a vast estate, heaped up by the labor and industry of one man, which seldom survives the third generation--power, gained by patient assiduity, by a faithful and regular discharge of its attendant duties, soon gets above its own origin. intoxicated with their own greatness the federal party fell. will not the same causes produce the same effects now as then? sir, you may raise this army, you may build up this vast structure of patronage, this mighty apparatus of favoritism; but--"lay not the flattering unction to your souls"--you will never live to enjoy the succession. you sign your political death warrant. mr. r. here adverted to the provocation to hostilities from shutting up the mississippi by spain in --but more fully to the conduct of the house in -' , under the strongest of all imaginable provocatives to war; the actual invasion of our country. he read various passages from the president's public message of december , . mr. r. said that the peculiar situation of the frontier, at that time insulted, had alone induced the committee to recommend the raising of regular troops. it was too remote from the population of the country for the militia to act, in repelling and chastising spanish incursion. new orleans and its dependencies were separated by a vast extent of wilderness from the settlements of the old united states; filled with a disloyal and turbulent people, alien to our institutions, language and manners, and disaffected towards our government. little reliance could be placed upon them, and it was plain, that if "it was the intention of spain to advance on our possessions until she should be repulsed by an opposing force," that force must be a regular army, unless we were disposed to abandon all the country south of tennessee. that if "the protection of our citizens and the spirit and the honor of our country required that force should be interposed," nothing remained but for the legislature to grant the only practicable means, or to shrink from the most sacred of all its duties--to abandon the soil and its inhabitants to the tender mercies of hostile invaders. yet this report, moderate as it was, had been deemed of too strong a character by the house. it was rejected: and, at the motion of a gentleman from massachusetts, (mr. bidwell,)--who had since taken a great fancy also to canada,[ ] and marched off thither, in advance of the committee of foreign relations--"$ , , , were appropriated towards" (not in full of) "any extraordinary expense which might be incurred in the intercourse between the united states and foreign nations:" in other words, to buy off, at paris, spanish aggressions at home. was this fact given in evidence of our impartiality towards the belligerents?--that to the insults and injuries and actual invasion of one of them we opposed not bullets, but dollars; that to spanish invasion we opposed money, whilst for british aggression on the high seas we had arms; offensive war? but spain was then shielded, as well as instigated, by a greater power. hence our respect for her. had we at that time acted as we ought to have done in defence of rights, of the _natale solum_ itself, we should (he felt confident) have avoided that series of insult, disgrace, and injury, which had been poured out upon us in long unbroken succession. we would not then raise a small regular force for a country where the militia could not act, to defend our own territory; now, we are willing to levy a great army, for great it must be, to accomplish the proposed object, for a war of conquest and ambition--and this, too, at the very entrance of the "northern hive," of the strongest part of the union. an insinuation had fallen from the gentleman from tennessee, (mr. grundy,) that the late massacre of our brethren on the wabash had been instigated by the british government. has the president given any such information? has the gentleman received any such, even informally, from any officer of this government? is it so believed by the administration? he had cause to think the contrary to be the fact; that such was not their opinion. this insinuation was of the grossest kind--a presumption the most rash, the most unjustifiable. show but good ground for it, he would give up the question at the threshold--he was ready to march to canada. it was indeed well calculated to excite the feelings of the western people particularly, who were not quite so tenderly attached to our red brethren as some modern philosophers; but it was destitute of any foundation, beyond mere surmise and suspicion. what would be thought, if, without any proof whatsoever, a member should rise in his place and tell us, that the massacre in savannah, a massacre perpetrated by civilized savages, with french commissions in their pockets, was excited by the french government? there was an easy and natural solution of the late transaction on the wabash, in the well-known character of the aboriginal savage of north america, without resorting to any such mere conjectural estimate. he was sorry to say, that for this signal calamity and disgrace the house was, in part, at least, answerable. session after session, their table had been piled up with indian treaties, for which the appropriations had been voted as a matter of course, without examination. advantage had been taken of the spirit of the indians, broken by the war which ended in the treaty of greenville. under the ascendency then acquired over them, they had been pent up by subsequent treaties into nooks straitened in their quarters by a blind cupidity, seeking to extinguish their title to immense wildernesses, for which (possessing, as we do already, more land than we can sell or use) we shall not have occasion, for half a century to come. it was our own thirst for territory, our own want of moderation, that had driven these sons of nature to desperation, of which we felt the effects. mr. r., although not personally acquainted with the late colonel daviess, felt, he was persuaded, as deep and serious regret for his loss as the gentleman from tennessee himself. he knew him only through the representation of a friend of the deceased, (mr. rowan,) some time a member of that house; a man, who, for native force of intellect, manliness of character, and high sense of honor, was not inferior to any that had ever sat there. with him he sympathized in the severest calamity that could befall a man of his cast of character. would to god they were both then on the floor! from his personal knowledge of the one, he felt confident that he would have his support--and he believed (judging of him from the representation of their common friend) of the other also. he could but smile at the liberality of the gentleman, in giving canada to new york, in order to strengthen the northern balance of power, while at the same time he forewarned her that the western scale must preponderate. mr. r. said that he could almost fancy that he saw the capitol in motion towards the falls of ohio--after a short sojourn taking its flight to the mississippi, and finally alighting on darien; which, when the gentleman's dreams are realized, will be a most eligible seat of government for the new republic (or empire) of the two americas! but it seemed that "in we talked and acted foolishly," and to give some color of consistency to that folly, we must now commit a greater. really he could not conceive of a weaker reason offered in support of a present measure, than the justification of a former folly. he hoped we should act a wiser part--take warning by our follies, since we had become sensible of them, and resolve to talk and act foolishly no more. it was indeed high time to give over such preposterous language and proceedings. this war of conquest, a war for the acquisition of territory and subjects, is to be a new commentary on the doctrine that republics are destitute of ambition--that they are addicted to peace, wedded to the happiness and safety of the great body of their people. but it seems this is to be a holiday campaign--there is to be no expense of blood, or treasure, on our part--canada is to conquer herself--she is to be subdued by the principles of fraternity. the people of that country are first to be seduced from their allegiance, and converted into traitors, as preparatory to the making them good citizens. although he must acknowledge that some of our flaming patriots were thus manufactured, he did not think the process would hold good with a whole community. it was a dangerous experiment. we were to succeed in the french mode by the system of fraternization--all is french! but how dreadfully it might be retorted on the southern and western slaveholding states. he detested this subornation of treason. no--if he must have them, let them fall by the valor of our arms, by fair, legitimate conquest; not become the victims of treacherous seduction. he was not surprised at the war spirit which was manifesting itself in gentlemen from the south. in the year -' , in a struggle for the carrying trade of belligerent colonial produce, this country has been most unwisely brought into collision with the great powers of europe. by a series of most impolitic and ruinous measures,[ ] utterly incomprehensible to every rational, sober-minded man, the southern planters, by their own votes, had succeeded in knocking down the price of cotton to seven cents, and of tobacco (a few choice crops excepted) to nothing--and in raising the price of blankets, (of which a few would not be amiss in a canadian campaign,) coarse woollens, and every article of first necessity, three or four hundred per cent. and now that, by our own acts, we have brought ourselves into this unprecedented condition, we must get out of it in any way, but by an acknowledgment of our own want of wisdom and forecast. but is war the true remedy? who will profit by it? speculators--a few lucky merchants, who draw prizes in the lottery--commissaries and contractors. who must suffer by it? the people. it is their blood, their taxes, that must flow to support it. but gentlemen avowed that they would not go to war for the carrying trade--that is, for any other but the direct export and import trade--that which carries our native products abroad, and brings back the return cargo; and yet they stickle for our commercial rights, and will go to war for them! he wished to know, in point of principle, what difference gentlemen could point out between the abandonment of this or of that maritime right? do gentlemen assume the lofty port and tone of chivalrous redressers of maritime wrongs, and declare their readiness to surrender every other maritime right provided they may remain unmolested in the exercise of the humble privilege of carrying their own produce abroad, and bringing back a return cargo? do you make this declaration to the enemy at the outset? do you state the minimum with which you will be contented, and put it in her power to close with your proposal at her option; give her the basis of a treaty ruinous and disgraceful beyond example and expression? and this, too, after having turned up your nose in disdain at the treaties of mr. jay and mr. monroe! will you say to england, "end the war when you please, give us the direct trade in our own produce, we are content?" but what will the merchants of salem, and boston, and new york, and philadelphia, and baltimore, the men of marblehead and cape cod, say to this? will they join in a war professing to have for its object what they would consider (and justly too) as the sacrifice of their maritime rights, yet affecting to be a war for the protection of commerce? he was gratified to find gentlemen acknowledging the demoralizing and destructive consequences of the non-importation law--confessing the truth of all that its opponents foretold when it was enacted. and will you plunge yourselves in war, because you have passed a foolish and ruinous law, and are ashamed to repeal it? "but our good friend the french emperor stands in the way of its repeal," and as we cannot go too far in making sacrifices to him, who has given such demonstration of his love for the americans, we must, in point of fact, become parties to his war. "who can be so cruel as to refuse him this favor?" his imagination shrunk from the miseries of such a connection. he called upon the house to reflect whether they were not about to abandon all reclamation for the unparalleled outrages, "insults and injuries" of the french government, to give up our claim for plundered millions; and asked what reparation or atonement they could expect to obtain in hours of future dalliance, after they should have made a tender of their person to this great deflowerer of the virginity of republics. we had by our own wise (he would not say _wise-acre_) measures, so increased the trade and wealth of montreal and quebec, that at last we began to cast a wishful eye at canada. having done so much towards its improvement by the exercise of "our restrictive energies," we began to think the laborer worthy of his hire, and to put in claim for our portion. suppose it ours, are we any nearer to our point? as his minister said to the king of epirus, "may we not as well take our bottle of wine before as after this exploit?" go! march to canada! leave the broad bosom of the chesapeake and her hundred tributary rivers--the whole line of seacoast from machias to st. mary's unprotected! you have taken quebec--have you conquered england? will you seek for the deep foundations of her power in the frozen deserts of labrador? "her march is on the mountain wave, her home is on the deep!" will you call upon her to leave your ports and harbors untouched, only just till you can return from canada to defend them? the coast is to be left defenceless, whilst men of the interior are revelling in conquest and spoil. but grant for a moment, for mere argument's sake, that in canada you touched the sinews of her strength, instead of removing a clog upon her resources--an encumbrance, but one, which, from a spirit of honor, she will vigorously defend. in what situation would you then place some of the best men of the nation? as chatham and burke, and the whole band of her patriots, prayed for her defeat in , so must some of the truest friends to their country deprecate the success of our arms against the only power that holds in check the arch-enemy of mankind. mr. r. declared that the committee had out-stripped the executive. in designating the power against whom this force was to be employed--as had most unadvisably been done in the preamble or manifesto with which the resolutions were prefaced--they had not consulted the views of the executive; that designation was equivalent to an abandonment of all our claims on the french government. no sooner was the report laid on the table, than the vultures were flocking round their prey, the carcass of a great military establishment--men of tainted reputation, of broken fortunes (if they ever had any) and of battered constitutions, "choice spirits, tired of the dull pursuits of civil life," were seeking after agencies and commissions; willing to doze in gross stupidity over the public fire; to light the public candle at both ends. honorable men undoubtedly there were ready to serve their country, but what man of spirit, or of self-respect, would accept a commission in the present army? the gentleman from tennessee (mr. grundy) had addressed himself, yesterday, exclusively to the "republicans of this house." mr. r. knew not whether he might consider himself as entitled to any part of the benefit of the honorable gentleman's discourse. it belonged not, however, to that gentleman to decide. if we must have an exposition of the doctrines of republicanism, he should receive it from the fathers of the church, and not from the junior apprentices of the law. he should appeal to his worthy friends from carolina, (messrs. macon and stanford,) "men with whom he had measured his strength," by whose side he had fought during the reign of terror, for it was indeed an hour of corruption, of oppression, of pollution. it was not at all to his taste, that sort of republicanism which was supported on this side of the atlantic by the father of the sedition law, john adams, and by peter porcupine on the other. republicanism! of john adams! and william cobbett! _par nobile fratrum_, now united as in , whom the cruel walls of newgate alone keep from flying to each other's embrace--but whom, in sentiment it is impossible to divide! gallant crusaders in the holy cause of republicanism! such "republicanism does indeed mean any thing or nothing." our people will not submit to be taxed for this war of conquest and dominion. the government of the united states was not calculated to wage offensive foreign war--it was instituted for the common defence and general welfare; and whosoever should embark in a war of offence, would put it to a test which it was by no means calculated to endure. make it out that great britain had instigated the indians on the late occasion, and he was ready for battle; but not for dominion. he was unwilling, however, under present circumstances, to take canada, at the risk of the constitution--to embark in common cause with france and be dragged at the wheels of the car of some burr or bonaparte. for a gentleman from tennessee or genesee, or lake champlain, there may be some prospect of advantage. their hemp would bear a great price by the exclusion of foreign supply. in that too the great importers were deeply interested. the upper country on the hudson and the lakes would be enriched by the supplies for the troops, which they alone could furnish. they would have the exclusive market: to say nothing of the increased preponderance from the acquisition of canada and that section of the union, which the southern and western states had already felt so severely in the apportionment bill. mr. r. adverted to the defenceless state of our seaports, and particularly of the chesapeake. a single spot only, on both shores, might be considered in tolerable security--from the nature of the port and the strength of the population--and that spot unhappily governed the whole state of maryland. his friend, the late governor of maryland, (mr. lloyd,) at the very time he was bringing his warlike resolutions before the legislature of the state, was liable, on any night, to be taken out of his bed, and carried off with his family, by the most contemptible picaroon. such was the situation of many a family in maryland and lower virginia. mr. r. dwelt on the danger arising from the black population. he said he would touch this subject as tenderly as possible--it was with reluctance that he touched it at all--but in cases of great emergency, the state physician must not be deterred by a sickly, hysterical humanity, from probing the wound of his patient--he must not be withheld by a fastidious and mistaken humanity from representing his true situation to his friends, or even to the sick man himself, where the occasion called for it. what was the situation of the slaveholding states? during the war of the revolution, so fixed were their habits of subordination, that when the whole southern country was overrun by the enemy, who invited them to desert, no fear was ever entertained of an insurrection of the slaves. during the war of seven years, with our country in possession of the enemy, no such danger was ever apprehended. but should we therefore be unobservant spectators of the process of society, within the last twenty years--of the silent and powerful change wrought by time and chance, upon its composition and temper? when the fountains of the great deep of abomination were broken up, even the poor slaves had not escaped the general deluge. the french revolution had polluted even them. nay, there had not been wanting men in that house, witness their legislative _legendre_, the butcher who once held a seat there, to preach upon that floor these imprescriptible rights to a crowded audience of blacks in the galleries--teaching them that they are equal to there masters; in other words, advising them to cut their throats. similar doctrines were disseminated by peddlers from new england and elsewhere, throughout the southern country--and masters have been found so infatuated, as by their lives and conversation, by a general contempt of order, morality, and religion, unthinkingly to cherish these seeds of self-destruction to them and their families. what was the consequence? within the last ten years, repeated alarms of insurrection among the slaves--some of them awful indeed. from the spreading of this infernal doctrine, the whole southern country had been thrown into a state of insecurity. men dead to the operation of moral causes, had taken away from the poor slave his habits of loyalty and obedience to his master, which lightened his servitude by a double operation; beguiling his own cares and disarming his master's suspicions and severity; and now, like true empirics in politics, you are called upon to trust to the mere physical strength of the fetter which holds him in bondage. you have deprived him of all moral restraint, you have tempted him to eat of the fruit of the tree of knowledge, just enough to perfect him in wickedness; you have opened his eyes to his nakedness; you have armed his nature against the hand that has fed, that has clothed him, that has cherished him in sickness; that hand, which before he became a pupil of your school, he had been accustomed to press with respectful affection. you have done all this--and then show him the gibbet and the wheel, as incentives to a sullen, repugnant obedience. god forbid, sir, that the southern states should ever see an enemy on their shores, with these infernal principles of french fraternity in the van! while talking of taking canada, some of us were shuddering for our own safety at home. he spoke from facts, when he said that the night-bell never tolled for fire in richmond that the mother did not hug her infant more closely to her bosom. he had been a witness of some of the alarms in the capital of virginia. mr. r. then proceeded to notice the unjust and illiberal imputation of british attachments, against certain characters in this country, sometimes insinuated in that house, but openly avowed out of it. against whom were these charges brought? against men, who in the war of the revolution were in the councils of the nation, or fighting the battles of your country. and by whom were they made? by runaways, chiefly from the british dominions, since the breaking out of the french troubles. he indignantly said--it is insufferable. it cannot be borne. it must, and ought, with severity, be put down in this house, and, out of it, to meet the lie direct. we have no fellow feeling for the suffering and oppressed spaniards! yet even them we do not reprobate. strange! that we should have no objection to any people or government, civilized or savage, in the whole world. the great autocrat of all the russias receives the homage of our high consideration. the dey of algiers and his divan of pirates are very civil, good sort of people, with whom we find no difficulty in maintaining the relations of peace and amity--"turks, jews, and infidels;" mellimelli, or the little turtle; barbarians and savages of every clime and color, are welcome to our arms. with chiefs of banditti, negro or mulatto, we can treat and can trade. name, however, but england, and all our antipathies are up in arms against her. against whom? against those whose blood runs in our veins; in common with whom we claim shakspeare, and newton, and chatham, for our countrymen; whose form of government is the freest on earth, our own only excepted; from whom every valuable principle of our own institutions has been borrowed--representation, jury trial, voting the supplies, writ of habeas corpus--our whole civil and criminal jurisprudence--against our fellow protestants identified in blood, in language, in religion with ourselves. in what school did the worthies of our land, the washingtons, henrys, hancocks, franklins, rutledges of america learn those principles of civil liberty which were so nobly asserted by their wisdom and valor? and american resistance to british usurpation had not been more warmly cherished by these great men and their compatriots; not more by washington, hancock, and henry, than by chatham and his illustrious associates in the british parliament. it ought to be remembered, too, that the heart of the english people was with us. it was a selfish and corrupt ministry, and their servile tools, to whom we were not more opposed than they were. he trusted that none such might ever exist among us--for tools will never be wanting to subserve the purposes, however ruinous or wicked, of kings and ministers of state. he acknowledged the influence of a shakspeare and milton upon his imagination, of a locke upon his understanding, of a sidney upon his political principles, of a chatham upon qualities which, would to god! he possessed in common with that illustrious man--of a tillotson, a sherlock, and a porteus, upon his religion. this was a british influence which he could never shake off. he allowed much to the just and honest prejudices growing out of the revolution. but by whom had they been suppressed when they ran counter to the interests of his country? by washington. by whom, would you listen to them, are they most keenly felt? by felons escaped from the jails of paris, newgate, and kilmainham, since the breaking out of the french revolution--who, in this abused and insulted country, have set up for political teachers, and whose disciples give no other proof of their progress in republicanism, except a blind devotion to the most ruthless military despotism that the world ever saw. these are the patriots, who scruple not to brand with the epithet of tory the men (looking towards the seat of col. stuart) by whose blood your liberties have been cemented. these are they, who hold in so keen remembrance the outrages of the british armies, from which many of them were deserters. ask these self-styled patriots where they were during the american war, (for they are for the most part old enough to have borne arms,) and you strike them dumb--their lips are closed in eternal silence. if it were allowable to entertain partialities, every consideration of blood, language, religion, and interest, would incline us towards england; and yet, shall they be alone extended to france and her ruler, whom we are bound to believe a chastening god suffers as the scourge of a guilty world! on all other nations he tramples--he holds them in contempt--england alone he hates; he would, but he cannot despise her--fear cannot despise. and shall we disparage our ancestors?--shall we bastardize ourselves by placing them even below the brigands of st. domingo? with whom mr. adams had negotiated a sort of treaty, for which he ought to have been and would have been impeached, if the people had not previously passed sentence of disqualification for their service upon him. this antipathy to all that is english must be french. but the outrages and injuries of england, bred up in the principles of the revolution, he could never palliate, much less defend them. he well remembered flying with his mother, and her new-born child, from arnold and phillips--and how they had been driven by tarleton and other british pandoors from pillar to post, while her husband was fighting the battles of his country. the impression was indelible on his memory--and yet (like his worthy old neighbor, who added seven buck-shot to every cartridge at the battle of guilford, and drew a fine sight at his man) he must be content to be called a tory by a patriot of the last importation. let us not get rid of one evil (supposing it to be possible) at the expense of a greater--_mutatis mutandis_. suppose france in possession of the british naval power--and to her the trident must pass should england be unable to wield it--what would be your condition? what would be the situation of your seaports and their seafaring inhabitants? ask hamburg, lubec. ask savannah. what, sir! when their privateers are pent up in our harbors by the british bull-dogs, when they receive at our hands every rite of hospitality, from which their enemy is excluded, when they capture within our own waters, interdicted to british armed ships, american vessels; when such is their deportment towards you, under such circumstances, what could you expect if they were the uncontrolled lords of the ocean? had those privateers at savannah borne british commissions, or had your shipments of cotton, tobacco, ashes, and what not, to london and liverpool, been confiscated, and the proceeds poured into the english exchequer--my life upon it! you would never have listened to any miserable wire-drawn distinctions between "orders and decrees affecting our neutral rights," and "municipal decrees," confiscating in mass your whole property. you would have had instant war! the whole land would have blazed out in war. and shall republicans become the instruments of him who had effaced the title of attila to the "scourge of god!" yet even attila, in the falling fortunes of civilization, had, no doubt, his advocates, his tools, his minions, his parasites in the very countries that he overran--sons of that soil whereon his horse had trod; where grass could never after grow. if perfectly fresh, mr. randolph said (instead of being as he was--his memory clouded, his intellect stupefied, his strength and spirits exhausted) he could not give utterance to that strong detestation which he felt towards (above all other works of the creation) such characters as zingis, tamerlane, kouli-khan, or bonaparte. his instincts involuntarily revolted at their bare idea. malefactors of the human race, who ground down man to a mere machine of their impious and bloody ambition. yet, under all the accumulated wrongs, and insults, and robberies of the last of these chieftains, are we not in point of fact about to become a party to his views, a partner in his wars? but before this miserable force of ten thousand men was raised to take canada, he begged them to look at the state of defence at home--to count the cost of the enterprise before it was set on foot, not when it might be too late--when the best blood of the country should be spilt, and naught but empty coffers left to pay the cost. are the bounty lands to be given in canada? it might lessen his repugnance to that part of the system, to granting these lands, not to those miserable wretches who sell themselves to slavery for a few dollars and a glass of gin, but in fact to the clerks in our offices, some of whom, with an income of fifteen hundred or two thousand dollars, lived at the rate of four or five thousand, and yet grew rich--who perhaps at that moment were making out blank assignments for these land rights. he would beseech the house, before they ran their heads against this post, quebec, to count the cost. his word for it, virginia planters would not be taxed to support such a war--a war which must aggravate their present distresses; in which they had not the remotest interest. where is the montgomery, or even the arnold, or the burr, who is to march to point levi? he called upon those professing to be republicans to make good the promises held out by their republican predecessors when they came into power--promises which, for years afterwards, they had honestly, faithfully fulfilled. we had vaunted of paying off the national debt, of retrenching useless establishments; and yet had now become as infatuated with standing armies, loans, taxes, navies, and war, as ever were the essex junto. what republicanism is this? wednesday, december . _foreign relations._ the house resumed the consideration of the report of the committee on foreign relations. mr. richard m. johnson said he rose to thank the committee for the report which was offered to the house, and the resolutions which were recommended; though the measures fell short of his wishes, and, he believed, of public expectation. the ulterior measures, however, promised by the committee satisfied his mind, and he should give the report his warm support. the chairman had given the views of the committee. the expulsion of the british from their north american possessions, and granting letters of marque and reprisal against great britain are contemplated. look at the message of the president. at a moment least to be expected, when france had ceased to violate our neutral rights, and the olive branch was tendered to great britain, her orders in council were put into a more rigorous execution. not satisfied with refusing a redress for wrongs committed on our coasts and in the mouths of our harbors, our trade is annoyed, and our national rights invaded; and, to close the scene of insolence and injury, regardless of our moderation and our justice, she has brought home to the "threshold of our territory," measures of actual war. as the love of peace has so long produced forbearance on our part, while commercial cupidity has increased the disposition to plunder on the part of great britain, i feel rejoiced that the hour of resistance is at hand, and that the president, in whom the people has so much confidence, has warned us of the perils that await them, and has exhorted us to put on the armor of defence, to gird on the sword, and assume the manly and bold attitude of war. he recommends filling up the ranks of the present military establishment, and to lengthen the term of service; to raise an auxiliary force for a more limited time; to authorize the acceptance of volunteers, and provide for calling out detachments of militia as circumstances may require. for the first time since my entrance into this body, there now seems to be but one opinion with a great majority--that with great britain war is inevitable; that the hopes of the sanguine as to a returning sense of british justice have expired; that the prophecies of the discerning have failed; and, that her infernal system has driven us to the brink of a second revolution, as important as the first. upon the wabash, through the influence of british agents, and within our territorial sea by the british navy, the war has already commenced. thus, the folly, the power, and the tyranny of great britain, have taken from us the last alternative of longer forbearance. mr. j. said we must now oppose the farther encroachments of great britain by war, or formally annul the declaration of our independence, and acknowledge ourselves her devoted colonies. the people whom i represent will not hesitate which of the two courses to choose; and, if we are involved in war, to maintain our dearest rights, and to preserve our independence, i pledge myself to this house, and my constituents to this nation, that they will not be wanting in valor, nor in their proportion of men and money to prosecute the war with effect. before we relinquish the conflict, i wish to see great britain renounce the piratical system of paper blockade; to liberate our captured seamen on board her ships of war; relinquish the practice of impressment on board our merchant vessels; to repeal her orders in council; and cease, in every other respect, to violate our neutral rights; to treat us as an independent people. the gentleman from virginia (mr. randolph) has objected to the destination of this auxiliary force--the occupation of the canadas, and the other british possessions upon our borders where our laws are violated, the indians stimulated to murder our citizens, and where there is a british monopoly of the peltry and fur trade. i should not wish to extend the boundary of the united states by war if great britain would leave us to the quiet enjoyment of independence; but, considering her deadly and implacable enmity, and her continued hostility, i shall never die contented until i see her expulsion from north america, and her territories incorporated with the united states. it is strange that the gentleman would pause before refusing this force, if destined to keep the negroes in subordination--who are not in a state of insurrection as i understand--and he will absolutely refuse to vote this force to defend us against the lawless aggressions of great britain--a nation in whose favor he had said so much. but, he has a dislike to the canadian french, french blood is hateful to him. i have no doubt but the canadian french are as good citizens as the canadian english, or the refugee tories of the revolution; nor have i any doubt but a great majority of that vast community are sound in their morals and in their politics, and would make worthy members of the united states. but, open the sacred pages of the journals of the congress of -' --that congress which commenced, and conducted to victory, the american revolution. upon the pages of the first volume (from page to ) we will find letters addressed to the inhabitants of canada and the province of quebec, containing the language of affectionate respect, and, in the warmth of patriotism, inviting them to unite against british tyranny, to make the cause of quarrel common, and to enter into the union of the states on the principles of equality. the encroachments of great britain are depicted in the most vivid colors, and then they say "we shall consider the violation of your rights a violation of our own, and you are invited to accede to the confederacy of the states." thus, the patriots of the revolution styled the inhabitants of the british provinces friends and fellow-sufferers in : although then but a handful of men compared to their present numbers, and only ten years had elapsed from their first incorporation with the british dominions; and nothing but the want of physical power and means prevented their independence in . the misfortunes of our arms at quebec, and in that quarter, are well known. these overtures of the old congress did not stop here. after the articles of confederation had been adopted, the door was left open for the reception of the canadas, and the hope was not lost until british arms riveted the chains of slavery upon them, which at that time could not be broken. now, sir, these people are more enlightened, they have a great american population among them, and they have correct ideas of liberty and independence, and only want an opportunity to throw off the yoke of their taskmakers. let us not think so meanly of the human character and the human mind. we are in pursuit of happiness, and we place a great value upon liberty as the means of happiness. what, then, let me ask, has changed the character of those people, that they are to be despised? what new order of things has disqualified them for the enjoyment of liberty? has any malediction of heaven doomed them to perpetual vassalage? or, will the gentleman from virginia pretend to more wisdom and more patriotism than the constellation of patriots who conducted the infant republic through the revolution? in point of territorial limit, the map will prove its importance. the waters of the st. lawrence and the mississippi interlock in a number of places, and the great disposer of human events intended those two rivers should belong to the same people. but it has been denied that british influence had any agency in the late dreadful conflict and massacre upon the wabash; and this is said to vindicate the british nation from so foul a charge. sir, look to the book of the revolution. see the indian savages in burgoyne's army urged on every occasion to use the scalping-knife and tomahawk--not in battle, but against old men and women, and children; in the night, when they were taught to believe an omniscient eye could not see their guilty deeds; and thus hardened in iniquity, they perpetrated the same deeds by the light of the sun, when no arm was found to oppose or protect. and when this crying sin was opposed by lord chatham, in the house of lords, the employment of these indians was justified by a speech from one of the ministry. thus we see how the principles of honor, of humanity, of christianity, were violated and justified in the face of the world. therefore, i can have no doubt of the influence of british agents in keeping up indian hostility to the people of the united states, independent of the strong proofs on this occasion; and, i hope it will not be pretended that these agents are too moral or too religious to do the infamous deed. so much for the expulsion of great britain from her dominions in north america, and their incorporation into the united states of america. the gentleman from virginia says we are identified with the british in religion, in blood, in language, and deeply laments our hatred to that country, who can boast of so many illustrious characters. this deep-rooted enmity to great britain arises from her insidious policy, the offspring of her perfidious conduct towards the united states. her disposition is unfriendly; her enmity is implacable; she sickens at our prosperity and happiness. if obligations of friendship do exist, why does great britain rend those ties asunder, and open the bleeding wounds of former conflicts? or does the obligation of friendship exist on the part of the united states alone? i have never thought that the ties of religion, of blood, of language, and of commerce, would justify or sanctify insult and injury--on the contrary, that a premeditated wrong from the hand of a friend created more sensibility, and deserved the greater chastisement and the higher execration. what would you think of a man, to whom you were bound by the most sacred ties, who would plunder you of your substance, aim a deadly blow at your honor, and in the hour of confidence endeavor to bury a dagger in your bosom? would you, sir, proclaim to the world your affection for this miscreant of society, after this conduct, and endeavor to interest your audience with the ties of kindred that bound you to each other? so let it be with nations, and there will be neither surprise nor lamentation that we execrate a government so hostile to our independence--for it is from the government that we meet with such multiplied injury, and to that object is our hatred directed. as to individuals of merit, whether british or french, i presume no person would accuse the people of the united states of such hatred to them, or of despising individuals, who might not be instrumental in the maritime despotism which we feel; and this accounts for the veneration we have for sidney and russell, statesmen of whom the gentleman has spoken; they are fatal examples why we should love the british government. the records of that government are now stained with the blood of these martyrs in freedom's cause, as vilely as with the blood of american citizens; and certainly we shall not be called upon to love equally the murderer and the victim. for god's sake let us not again be told of the ties of religion, of laws, of blood, and of customs, which bind the two nations together, with a view to extort our love for the english government, and more especially when the same gentleman has acknowledged that we have ample cause of war against that nation--let us not be told of the freedom of that corrupt government whose hands are washed alike in the blood of her own illustrious statesmen, for a manly opposition to tyranny, and the citizens of every other clime. but i would inquire into this love for the british government and british institutions, in the gross, without any discrimination. why love her rulers? why kiss the rod of iron which inflicts the stripes without a cause? when all admit we have just cause of war, such attachments are dangerous, and encourage encroachment. i will venture to say, that our hatred of the british government is not commensurate with her depredations and her outrages on our rights, or we should have waged a deadly war against her many years past. the subject of foreign attachments and british hatred has been examined at considerable length. i did not intend to begin that discussion, but i will pursue it, and though i make no charge of british attachments, i will, at all times, at every hazard, defend the administration and the republican party against the charge of foreign partialities--french or spanish, or any other kind, when applied to the measures of our government. this foreign influence is a dangerous enemy; we should destroy the means of its circulation among us--like the fatal tunic, it destroys where it touches. it is insidious, invisible, and takes advantage of the most unsuspecting hours of social intercourse. i would not deny the good will of france nor of great britain to have an undue influence among us. but great britain alone has the means of this influence to an extent dangerous to the united states. it has been said that great britain was fighting the battles of the world--that she stands against universal dominion threatened by the arch-fiend of mankind. i should be sorry if our independence depended upon the power of great britain. if, however, she would act the part of a friendly power towards the united states, i should never wish to deprive her of power, of wealth, of honor, of prosperity. but if her energies are to be directed against the liberties of this free and happy people, against my native country, i should not drop a tear if the fast-anchored isle would sink into the waves, provided the innocent inhabitants could escape the deluge and find an asylum in a more favorable soil. and as to the power of france, i fear it as little as any other power; i would oppose her aggressions, under any circumstances, as soon as i would british outrages. the ties of religion, of language, of blood, as it regards great britain, are dangerous ties to this country, with her present hostile disposition--instead of pledges of friendship they are used to paralyze the strength of the united states in relation to her aggressions. there are other ties equally efficacious. the number of her commercial traders within our limits, her agents, &c., the vast british capital employed in our commerce and our moneyed institutions, connected with her language, ancestry, customs, habits, and laws. these are formidable means for estranging the affections of many from our republican institutions, and producing partialities for great britain. now i shall attend to the charge of partiality in our measures towards france. it is an insinuation not founded in fact, and can only exist in the imagination of those who may insinuate it. we are not driven to mere declarations--the truth of the assertion is bottomed upon the statute records of the united states; and we appeal to the character of every measure relative to foreign relations, since the adoption of the embargo, in consequence of the violation of neutral rights upon the high seas. the direct object of the berlin and milan decrees was the ruin of all trade to british ports--and the object of the orders in council was the destruction of all commerce to french ports and ports from which the british flag was excluded. the gentleman from virginia has called the military regular forces mercenaries. if by this appellation any reproach or degradation is intended, its justice and propriety is denied. in times like the present, when dangers thicken upon us, at the moment when we are compelled by most wanton tyranny upon the high seas, and upon land may be added, to abandon our peaceful habits for the din of arms, officers and soldiers in this country are governed by the noble feelings of patriotism and of valor. the history of the world may be ransacked; other nations may be brought in review before us, and examples of greater heroism cannot be quoted, than shall be performed in battle by our officers and soldiers, military and naval and marine. the deeds of their ancestors would be before them; glory would animate their bosoms, and love of country would nerve the heart to deeds of mighty fame. if, therefore, there should not be a diminution of respect for those who entertain an opinion so degrading to our army, it should at least be understood that such opinions do not lessen the confidence due to those who faithfully serve their country, and who would lay down their life for it. this reflection brings to memory the late memorable conflict upon the wabash. governor harrison pitched his tents near the prophet's town; and although this fanatic and his followers collected, and the american forces were anxious to finish the work by an open and daylight engagement, if there was a necessity to resort to arms, their impetuous valor was easily stayed, when they were informed that the white flag of peace was to be hoisted next morning, and the effusion of blood was to be spared. but in the silent watches of the night, relieved from the fatigues of valor, and slumbering under the perfidious promises of the savages, who were infuriated and made drunk by british traders, dreaming of the tender smile of a mother, and the fond embraces of affectionate wives, and of prattling children upon their knees, on their return from the fatigues of a campaign!--the destroyers came with the silent instruments of death, the war club, the scalping knife, the tomahawk, and the bow and arrow; with these they penetrate into the heart of our forces--they enter the tents of our officers--many close their eyes in death--it was a trying moment for the rest of our heroes, but they were equal to the dreadful occasion. the american forces flew to arms; they rallied at the voice of their officers, and soon checked the work of death. the savages were successively and successfully charged and driven until daylight, when they disappeared like the mist of morning. in this dreadful conflict many were killed and wounded on both sides; and the volunteers and the regiment under colonel boyd acted and fought with equal bravery and to their immortal honor. the volunteers from kentucky were men of valor and worth--young men of hopeful prospects, and married men of reputation and intelligence, governed by no mercenary views--honor prompted them to serve their country. some of these fallen heroes were my acquaintances, my friends: one not the least conspicuous lived in my district--colonel owens; colonel daviess, a neighbor. you, mr. speaker, know the worth of some of these men; and i regret that you are not in my place to speak their praise. so long as the records of this transaction remain, the th of november will not be forgotten, and time shall only brighten the fame of the deeds of our army, and a tear shall be shed for those who have fallen. but the loss will not be felt by the public alone: the friends of their social hours will regret their loss; the widow will mourn her disconsolate situation; the orphan shall cry for the return of his father in vain; and the mother carry her sorrow to the grave. let this ornamented hall be clothed with the symbols of mourning, although our army proved victorious in war; and to their memory let a monument be erected in the hearts of a grateful country. mr. wright.--mr. speaker, i must beg the indulgence of the house while i deliver my opinion on the subject now under consideration, the most important that has been submitted to the congress of the united states. i, sir, shall take the liberty of varying the question from the honorable member from virginia, (mr. randolph,) who yesterday considered it a question of peace or war. i shall consider it as a question of war or submission, dire alternatives, of which, however, i trust no honest american can hesitate in choosing, when the question is correctly stated and distinctly understood. the gentleman from virginia contends that it is a dispute about the carrying trade, brought on us by the cupidity of the american merchants, in which the farmer and planter have little interest; that he will not consent to tax his constituents to carry on a war for it; that the enemy is invulnerable on the "mountain wave," the element of our wrongs, but should they violate the "_natale solum_," he would point all the energies of the nation and avenge the wrong. was that gentleman stricken on the nose by a man so tall that he could not reach his nose, i strongly incline to think his manly pride would not permit him to decline the conflict. sir, the honorable member is incorrect in his premises, and, of course, in his conclusions. i will endeavor to convince him of this, and shall be gratified if i can enlist his talents on the side of a bleeding country. sir, the violations of the commercial rights of which we complain do not only embrace the carrying trade, properly so called, but also the carrying of the products of our own soil, the fruits of our own industry; these, although injurious only to our property, are just causes of war. but, sir, the impressment of our native seamen is a stroke at the vitals of liberty itself, and although it does not touch the "_natale solum_," yet it enslaves the "_nativos filios_"--the native sons of america; and, in the ratio that liberty is preferable to property, ought to enlist the patriotic feelings of that honorable member, and make his bosom burn with that holy fire that inspired the patriots of the revolution. sir, the carrying trade--by which i mean the carrying articles, the growth, produce, or manufacture of a foreign clime--except articles contraband of war--is as much the right of the american people as the carrying the products of their own soil, and is not only secured by the law of nations, but by the positive provisions of the british treaty. to us, sir, it is an all-important right. we import from the west indies, annually, property to the amount of forty millions of dollars, for which we pay in the products of our own soil; of this, ten millions only are consumed in the united states, and the surplus thirty millions are exported to foreign countries, on which the american merchant pays three per cent. on the duties to the united states, obtains the profits on the freight of thirty millions of dollars, and furnishes a market for american productions to the same amount. the honorable gentleman from virginia said, that that little spot in maryland, baltimore, which was well fortified and secure from an attack, had unbounded influence; "that the lords of baltimore" governed the representatives of maryland in their votes on this subject. no, sir, every district of maryland solemnly protests against submission to any foreign power, and i have no doubt will approve the votes of their members on this floor, "to prepare for war," or for war itself, rather than submission. baltimore, by the industry and commercial enterprise of her citizens, has grown out of the sea into a great commercial city, has diffused the benefits of commerce into every section of the state, by making a great demand for the products of our soil and industry, and a consequent increase of price, whereby every foot of land in maryland is made more valuable, and whereby the interest of every part of the state is identified with theirs; for this she is justly entitled to our respect. but, sir, she has no occasion to infuse her patriotic fire--so pre-eminent in the case of the chesapeake--into the representatives of maryland. they know the wishes of their constituents, and will most certainly obey them. mr. speaker, the gentleman from virginia has declared that, if he could believe that the late massacre of the troops, in the attack on governor harrison by the indians, under the prophet, was the effect of british agency, he would unite with us, heart and hand, and personally assist to avenge the bloody deed. i feel a confidence, that if the gentleman will attend to the circumstances of this case, and take a retrospective view of the conduct of the british government, he will feel no doubt of the fact. i will take the liberty of pointing the gentleman's attention to some of the prominent features of that government, which will go far in establishing that fact. when dunmore, governor of virginia, in , found it necessary to quit the seat of government, and go on board the fleet for safety from the revolutionary vengeance of the patriots of virginia--at a period, too, when the americans were suing for justice by their humble petitions to the king and parliament; and when that chatham, the gentleman from virginia has so highly extolled, was the advocate of our violated rights--dunmore issued a proclamation inviting the negroes to his standard; to cut the throats of their masters; and promised them a pardon. this fact i know, from having presented that proclamation to a court at northampton in virginia, to induce them to commute the punishment of death, passed on some of the victims of his perfidy, to working in the mines; which they did. i will next remind the gentleman of the speech of lord dorchester to the indians after the peace, in which he advises them to use the tomahawk and scalping-knife, whereby numbers of the inhabitants of the frontiers, of all ages, sexes, and conditions, were sacrificed. this was the cause of the indian war that shortly after took place. this fact was attested by the newspapers of the day, which had universal credit. these cases go to prove that the principles that ought to govern civilized nations, have, at all times, been totally disregarded by the officers and agents of that government. after these cases, we shall feel little hesitation in believing there was a british agency in the case of the massacre by the prophet's troops on governor harrison's detachment, when the circumstances relied on are duly considered. at the late great council with governor harrison, the chiefs of many tribes were convened, all of whom, except tecumseh, the prophet's brother, in their speeches avowed their friendly dispositions, and their devotion to peace with the united states. tecumseh, who, with a number of his tribe, came from fort malden, in canada, declared his hostile intentions against the united states, left the council with that avowed intention, and returned again to fort malden. shortly after this, the shawanees assembled a large body in arms in the indiana territory, under the prophet, and committed the assault on the troops of governor harrison, though they have paid for their temerity. this, i trust, connected as it is with the immorality and extraordinary pretensions of that government at this crisis, will satisfy, not only the gentleman from virginia, but this house, of a british agency in the case. mr. speaker, i regret that the gentleman from virginia should ascribe to gentlemen of the west, a disposition for war, with a view to raise the price of their hemp; or to the gentlemen of the north, with a view to raise the price of their beef and flour. these, sir, are selfish motives, and such i cannot for a moment believe will be taken into consideration; they will, with every other section of the union, unite in deciding it on its merits.; they will count the wrongs we have sustained; they will reflect that the honor, the interest, and the very independence of the united states, is directly attacked; they will, as guardians of the nation's rights, agreeably to the advice of the administration, "put the united states into an armor and an attitude demanded by the crisis, and correspondent with the national spirit and expectations;" they will prepare to chastise the wrongs of the british cabinet, which the president tells us, "have the character as well as the effect of war, on our commercial rights, which no independent nation can relinquish." they will decide with the president, the executive organ of the nation's will, "that these wrongs are no longer to be endured." they will decide with the committee of foreign relations, "that forbearance longer to repel these wrongs has ceased to be a virtue," and, i hope they will decide with me, that submission is a crime; and, sir, if they will examine a document on that table, i mean the returns of the twelfth congress, and compare them with the eleventh, they will find nearly one-half of the eleventh congress removed. this, sir, may correctly be considered as the sentence of the nation against the doctrine of submission; it is certainly an expression of the nation's will, in a language not to be misunderstood, and too serious in its application not to be respected. we have also, sir, the expression of maryland, through her senate, who unanimously approved the spirited resolutions introduced by the late governor, who did not suffer his exposed situation, so alarming in the opinion of the gentleman from virginia, to deter him from doing his duty. we have also, sir, the resolutions of the legislature of pennsylvania, an honest test of their non-submission principles. mr. speaker, i cannot forbear the remark that, while the gentleman from virginia ascribes to the west and to the north interested motives, he confesses that the situation of the blacks in the state he represents, impressed as they are with the new french principles of liberty, and their desire for the fraternal hug, are seriously to be feared; that these new principles have been taught them by the peddlers from the east, who, while they sell their trinkets, inculcate these doctrines. he suffers his fears for the state he represents, in the event of a war, on account of the blacks, to _interest_ him; and had he not told us that, if the "_natale solum_" was touched, or that, if there was a british agency in the late attack on governor harrison, he would go to war, i should have been ready to conclude that, as the state of the blacks would be a permanent objection, no cause could occur that would induce him to go to war. mr. speaker, the gentleman from virginia says he expects to be charged with being under british influence; however, he disregarded it. i assure him i shall not be one of his accusers; i believe him governed by _himself_, and influenced by pure american motives, and that, if he saw the subject as i do, his bosom would burn with the same sacred fire to avenge our wrongs; and were i to hear him charged in his absence with british influence, i should repel it, notwithstanding he has told us, in a prideful manner, that he had descended from british ancestors; that, from a shakspeare he had formed his taste, from a locke, his mind, from a chatham, his politics, from a sydney his patriotism, from a tillotson his religion. mr. speaker, had i been that honorable member, i should have boasted a nobler line of ancestry; i should have claimed my descent from the beardless powhatan, and the immortal pocahontas; and i should have taken as models, from my own state, a henry for my eloquence, a jefferson for my politics, a washington for my patriotism, and a madison, or rather the oracles of revolution, for my religion. but, sir, i am myself so much a roman, that i can truly say, in their language, "_aut genus aut proavos, aut qua non fecimus ipse, vix ea nostra voco_." "honor and shame from no condition rise, act well your part, there all the honor lies." sir, the charge of foreign influence, and the recrimination of one political party by the other, are unpleasant things. i should rejoice to see the curtain of oblivion drawn over them, and all uniting under the nobler distinction of american. thursday, december . _foreign relations._ the house resumed the consideration of the report of the committee on foreign relations. mr. calhoun.--mr. speaker: i understood the opinion of the committee of foreign relations differently from what the gentleman from virginia (mr. randolph) has stated to be his impression. i certainly understood that committee as recommending the measures now before the house as a preparation for war; and such in fact was its express resolve, agreed to, i believe, by every member except that gentleman. i do not attribute any wilful misstatement to him, but consider it the effect of inadvertency or mistake. indeed, the report could mean nothing but war or empty menace. i hope no member of this house is in favor of the latter. a bullying, menacing system has every thing to condemn and nothing to recommend it; in expense, it is almost as considerable as war; it excites contempt abroad, and destroys confidence at home. menaces are serious things; and, if we expect any good from them, they ought to be resorted to with as much caution and seriousness as war itself, and should, if not successful, be invariably followed by it. it was not the gentleman from tennessee (mr. grundy) that made this a war question. the resolve contemplates an additional regular force; a measure confessedly improper but as a preparation for war, but undoubtedly necessary in that event. sir, i am not insensible of the weighty importance of this question, for the first time submitted to this house, as a redress of our long list of complaints against one of the belligerents; but, according to my mode of thinking on this subject, however serious the question, whenever i am on its affirmative side, my conviction must be strong and unalterable. war, in this country, ought never to be resorted to but when it is clearly justifiable and necessary; so much so, as not to require the aid of logic to convince our reason, nor the ardor of eloquence to inflame our passions. there are many reasons why this country should never resort to it but for causes the most urgent and necessary. it is sufficient that, under a government like ours, none but such will justify it in the eye of the nation; and were i not satisfied that such is the present case, i certainly would be no advocate of the proposition now before the house. sir, i might prove the war, should it ensue, justifiable, by the express admission of the gentleman from virginia; and necessary, by facts undoubted and universally admitted, such as that gentleman did not pretend to controvert. the extent, duration, and character of the injuries received; the failure of those peaceful means heretofore resorted to for the redress of our wrongs, is my proof that it is necessary. why should i mention the impressment of our seamen; depredation on every branch of our commerce, including the direct export trade, continued for years, and made under laws which professedly undertake to regulate our trade with other nations; negotiation resorted to time after time, till it is become hopeless; the restrictive system persisted in to avoid war, and in the vain expectation of returning justice? the evil still grows, and in each succeeding year swells in extent and pretension beyond the preceding. the question, even in the opinion and admission of our opponents, is reduced to this single point--which shall we do, abandon or defend our own commercial and maritime rights, and the personal liberties of our citizens employed in exercising them? these rights are essentially attacked, and war is the only means of redress. the gentleman from virginia has suggested none--unless we consider the whole of his speech as recommending patient and resigned submission as the best remedy. sir, which alternative this house ought to embrace, it is not for me to say. i hope the decision is made already, by a higher authority than the voice of any man. it is not for the human tongue to instill the sense of independence and honor. this is the work of nature--a generous nature, that disdains tame submission to wrongs. this part of the subject is so imposing, as to enforce silence even on the gentleman from virginia. he dared not to deny his country's wrongs, or vindicate the conduct of her enemy. only one point of that gentleman's argument had any, the most remote, relation to this point. he would not say we had not a good cause of war, but insisted that it was our duty to define that cause. if he means that this house ought, at this stage of the proceeding, or any other, to enumerate such violations of our rights as we are willing to contend for, he prescribes a course which neither good sense nor the usage of nations warrants. when we contend, let us contend for all our rights; the doubtful and the certain, the unimportant and essential. it is as easy to struggle, or even more so, for the whole as a part. at the termination of the contest, secure all that our wisdom and valor and the fortune of the war will permit. this is the dictate of common sense; such also is the usage of nations. the single instance alluded to, the endeavor of mr. fox to compel mr. pitt to define the object of the war against france, will not support the gentleman from virginia in his position. that was an extraordinary war for an extraordinary purpose, and could not be governed by the usual rules. it was not for conquest, or for redress of inquiry, but to impose a government on france, which she refused to receive; an object so detestable, that an avowal dare not be made. sir, here i might rest the question. the affirmative of the proposition is established. i cannot but advert, however, to the complaint of the gentleman from virginia the first time he was up on this question. he said he found himself reduced to the necessity of supporting the negative side of the question, before the affirmative was established. let me tell that gentleman, that there is no hardship in his case. it is not every affirmative that ought to be proved. were i to affirm the house is now in session, would it be reasonable to ask for proof? he who would deny its truth, on him would be the proof of so extraordinary a negative. how, then, could the gentleman, after his admissions, with the facts before him and the nation, complain? the causes are such as to warrant, or rather make it indispensable in any nation not absolutely dependent to defend its rights by force. let him, then, show the reasons why we ought not so to defend ourselves. on him, then, is the burden of proof. this he has attempted; he has endeavored to support his negative. before i proceed to answer the gentleman particularly, let me call the attention of the house to one circumstance: that is, that almost the whole of his arguments consisted of an enumeration of evils always incident to war, however just and necessary; and that, if they have any force, it is calculated to produce unqualified submission to every species of insult and injury. i do not feel myself bound to answer arguments of the above description; and if i should touch on them, it will be only incidentally, and not for the purpose of serious refutation. the first argument of the gentleman which i shall notice, is the unprepared state of the country. whatever weight this argument might have, in a question of immediate war, it surely has little in that of preparation for it. if our country is unprepared, let us remedy the evil as soon as possible. let the gentleman submit his plan; and, if a reasonable one, i doubt not it will be supported by the house. but, sir, let us admit the fact and the whole force of the argument, i ask whose is the fault? who has been a member for many years past, and has seen the defenceless state of his country even near home, under his own eyes, without a single endeavor to remedy so serious an evil? let him not say "i have acted in a minority." it is no less the duty of the minority than a majority to endeavor to serve our country. for that purpose we are sent here, and not for that of opposition. we are next told of the expenses of the war, and that people will not pay taxes. why not? is it a want of capacity? what, with one million tons of shipping, a trade of near $ , , , manufactures of $ , , , and agriculture of thrice that amount, shall we be told the country wants capacity to raise and support ten thousand or fifteen thousand additional regulars? no; it has the ability, that is admitted; but will it not have the disposition? is not the course a just and necessary one? shall we, then, utter this libel on the nation? where will proof be found of a fact so disgraceful? it is said, in the history of the country twelve or fifteen years ago. the case is not parallel. the ability of the country is greatly increased since. the object of that tax was unpopular. but on this, as well as my memory and almost infant observation at that time serve me, the objection was not to the tax, or its amount, but the mode of collection. the eye of the nation was frightened by the number of officers; its love of liberty shocked with the multiplicity of regulations. we, in the vile spirit of imitation, copied from the most oppressive part of european laws on that subject, and imposed on a young and virtuous nation all the severe provisions made necessary by corruption and long growing chicane. if taxes should become necessary, i do not hesitate to say the people will pay cheerfully. it is for their government and their cause, and would be their interest and duty to pay. but it may be, and i believe was said, that the nation will not pay taxes, because the rights violated are not worth defending, or that the defence will cost more than the profit. sir, i here enter my solemn protest against this low and "calculating avarice" entering this hall of legislation. it is only fit for shops and counting-houses, and ought not to disgrace the seat of sovereignty by its squalid and vile appearance. whenever it touches sovereign power, the nation is ruined. it is too short-sighted to defend itself. it is an unpromising spirit, always ready to yield a part to save the balance. it is too timid to have in itself the laws of self-preservation. it is never safe but under the shield of honor. sir, i only know of one principle to make a nation great, to produce in this country not the form but real spirit of union, and that is, to protect every citizen in the lawful pursuit of his business. he will then feel that he is backed by the government; that its arm is his arms; and will rejoice in its increased strength and prosperity. protection and patriotism are reciprocal. this is the road that all great nations have trod. sir, i am not versed in this calculating policy; and will not, therefore pretend to estimate in dollars and cents the value of national independence, or national affection. i cannot dare to measure, in shillings and pence, the misery, the stripes, and the slavery of our impressed seamen; nor even to value our shipping, commercial, and agricultural losses, under the orders in council and the british system of blockade. i hope i have not condemned any prudent estimate of the means of a country, before it enters on a war. this is wisdom, the other folly. sir, the gentleman from virginia has not failed to touch on the calamity of war; that fruitful source of declamation, by which pity becomes the advocate of cowardice; but i know not what we have to do with that subject. if the gentleman desires to repress the gallant ardor of our countrymen by such topics, let me inform him, that true courage regards only the cause--that it is just and necessary--and that it despises the pain and danger of war. if he really wishes to promote the cause of humanity, let his eloquence be addressed to lord wellesley or mr. percival, and not the american congress. tell them, if they persist in such daring insult and injury to a neutral nation, that, however inclined to peace, it will be bound in honor and interest to resist; that their patience and benevolence, however great, will be exhausted; that the calamity of war will ensue; and that they, in the opinion of wounded humanity, will be answerable for all its devastation and misery. let melting pity, and regard to the interest of humanity, stay the hand of injustice, and, my life on it, the gentleman will not find it difficult to call off his country from the bloody scenes of war. we are next told of the danger of war! i believe we are all ready to acknowledge its hazard and accidents; but i cannot think we have any extraordinary danger to contend with, at least so much as to warrant an acquiescence in the injuries we have received. on the contrary, i believe no war can be less dangerous to internal peace, or national existence. but, we are told of the black population of the south. as far as the gentleman from virginia speaks of his own personal knowledge, i will not pretend to contradict him; i only regret that such is the dreadful state of his particular part of the country. of the southern section, i too have some personal knowledge, and can say that, in south carolina, no such fears in any part are felt. but, sir, admit the gentleman's statement; will a war with great britain increase the danger? will the country be less able to repress insurrection? had we any thing to fear from that quarter, which i sincerely disbelieve, in my opinion, the precise time of the greatest safety is during a war in which we have no fear of invasion--then the country is most on its guard; our militia the best prepared; and standing force the greatest. even in our revolution no attempts were made by that portion of our population; and, however the gentleman may frighten himself with the disorganizing effects of french principles, i cannot think our ignorant blacks have felt much of their baneful influence. i dare say more than one-half of them never heard of the french revolution. but, as great, as is the danger from our slaves, the gentleman's fears end not there--the standing army is not less terrible to him. sir, i think a regular force, raised for a period of actual hostilities, cannot be called a standing army. there is a just distinction between such a force, and one raised as a peace establishment. whatever may be the composition of the latter, i hope the former will consist of some of the best materials of the country. the ardent patriotism of our young men, and the reasonable bounty in land which is proposed to be given, will impel them to join their country's standard and to fight her battles; they will not forget the citizen in the soldier, and, in obeying their officer, learn to contemn their constitution. in our officers and soldiers we will find patriotism no less pure and ardent than in the private citizen; but, if they should be depraved, as represented, what have we to fear from twenty-five or thirty thousand regulars? where will be the boasted militia of the gentleman? can one million of militia be overpowered by thirty thousand regulars? if so, how can we rely on them against a foe invading our country? sir, i have no such contemptuous idea of our militia--their untaught bravery is sufficient to crush all foreign and internal attempts on their country's liberties. but we have not yet come to the end of the chapter of dangers. the gentleman's imagination, so fruitful on this subject, conceives that our constitution is not calculated for war, and that it cannot stand its rude shock. this is rather extraordinary--we must depend upon the pity or contempt of other nations, for our existence. the constitution, it seems, has failed in its essential part, "to provide for the common defence." no, says the gentleman from virginia, it is competent for a defensive, but not an offensive war. it is not necessary for me to expose the error of this opinion. why make the distinction in this instance? will he pretend to say, that this is an offensive war; a war of conquest? yes, the gentleman has dared to make this assertion; and for reasons no less extraordinary than the assertion itself. he says, our rights are violated on the ocean, and that these violations affect our shipping, and commercial rights, to which the canadas have no relation. the doctrine of retaliation has been much abused of late by an unnatural extension; we have now to witness a new abuse. the gentleman from virginia has limited it down to a point. by his system, if you receive a blow on the breast, you dare not return it on the head, you are obliged to measure and return it on the precise point on which it was received. if you do not proceed with mathematical accuracy, it ceases to be just self-defence; it becomes an unprovoked attack. in speaking of canada, the gentleman from virginia introduced the name of montgomery with much feeling and interest. sir, there is danger in that name to the gentleman's argument. it is sacred to heroism! it is indignant of submission! this calls my memory back to the time of our revolution; to the congress of ' and ' . supposing a speaker of that day had risen and urged all the arguments which we have heard on this subject; had told that congress, "your contest is about the right of laying a tax; and that the attempt on canada had nothing to do with it: that the war would be expensive; that danger and devastation would overspread our country, and that the power of great britain was irresistible." with what sentiment, think you, would such doctrines have been received? happy for us, they had no force at that period of our country's glory. had they been then acted on, this hall would never have witnessed a great nation convened to deliberate for the general good; a mighty empire, with prouder prospects than any nation the sun ever shone on, would not have risen in the west. no; we would have been vile, subjected colonies; governed by that imperious rod which great britain holds over her distant provinces. mr. desha said--mr. speaker, the report of the committee on foreign relations, of which the resolution now under consideration forms a part, is not what i thought would have been the most advisable to adopt, in order to meet the emergency; not that i was for immediate war, as we are unprepared for that event; but, sir, in addition to the force recommended, and authorizing the arming the merchant vessels, i was for adopting the convoy system. but, sir, as the report is of a character different from the temporizing policy heretofore pursued, and one, if not decisive in itself, which will lead to something decisive; and as i am now perfectly satisfied that it is the intention of the government to follow it up by ulterior measures, calculated to prove the necessity of these preparatory steps, and as union, under existing circumstances, is all-important, as one of the committee, i am bound to give it my support. sir, discovering no disposition on the part of britain to relax in her orders in council, to cease her oppression, or to make restitution for the damages we have sustained; but, on the contrary, a manifest disposition to persist in her lawless aggressions, it therefore becomes necessary not to depend any longer on countervailing restrictive systems, but to adopt something of a character more energetic, and more congenial to the wishes of the american people. sir, while i thought there was the most distant probability of obtaining justice by peace measures, i was an advocate for peace; but, sir, when i see not the least prospect of a revocation of her destructive orders in council, of the releasement of our impressed countrymen, a relinquishment of the principle of impressment, nor restitution for damages, i am for assuming a war attitude--consequently shall vote for the report of the committee, because i believe the force there contemplated will be an efficient force, and adequate to the purposes intended, to wit, the subjugation of the british north american provinces. sir, to enumerate the aggressions committed on our rights by britain, the depredations on our commerce, the murder and impressment of our countrymen, and the indignities offered our flag, would be taking up your time unnecessarily--particularly, sir, as those enormities must be recent in the mind of every member present; and as it is time to lay aside the war of words and proceed to actions, i shall not detain you long with any remarks of mine. sir, remonstrances against atrocities have been made in vain; experience has taught us nothing can be expected from negotiations. we have been negotiating for fifteen or twenty years, at an enormous expense, say nearly half a million of dollars, and the causes of which we complained have regularly increased; insult has been heaped upon injury, we have suffered ourselves to be buffeted, kicked, and treated with all kind of indignities with impunity. yes, sir, insult has been the result of all late attempts at negotiation; for instance, sir, mr. roset was sent for no other purpose than to gull the government, and because erskine was disposed to do us justice in part, he was recalled and disgraced. the conduct of the copenhagen gentleman, mr. jackson, demonstrated that he was sent for the purpose of bullying the government. and pray, mr. speaker, what has mr. foster been sent for? why, sir, in my opinion, for no other purpose than to operate as an opiate on the government; to lull us to sleep. as a proof of which, about the commencement of the session, a session convened by proclamation, which was naturally calculated to agitate the public mind, he comes forward with offers of reparation as he calls them, but which in my estimation is no more than a patch, calculated to cover one corner of the wound the nation received, in that wanton and dastardly outrage, the attack on the chesapeake; but, sir, in his soporifics i trust he will be disappointed. i have no hesitation in saying, that when the letters from this minister to our government are examined by the people, that independent of the arrogance bordering on insolence, in which they are couched, so characteristic of that nation, they will have a different effect from that of conciliation; the illiberal and disingenuous demands made preliminary to the revocation of the orders in council, will have a tendency to rouse the public mind; they will be looked on with an indignant frown by all real americans. sir, we have been constantly annoyed, assaulted openly and insidiously; we have been plundered, oppressed, and insulted; we thought it preferable to forbear while forbearance was possible, than to plunge into the evils of war, to redress the evil of plunder and partial and dastard-like courage; we judged it better to abandon the wealth which the afflictions of the world held out to the avidity of commercial speculation, and consequently withdrew from the ocean, by the adoption of the embargo--a measure of all others the best calculated to meet the then emergency, and which would, i have no hesitation in saying, have produced the desired effect if we had have had firmness enough to have adhered to it, and virtue and patriotism enough to have enforced it. but, sir, partyism was our ruin; it proved that we had as much to fear from our domestic enemies as our foreign foes, and apparently the greatest evil we had to apprehend was in falling a victim to our own political dissensions, occasioned by the deeply-laid plans of our deadly foe, britain. sir, during embargo times our domestic enemies, encouraged by a proclamation issued under the authority of the king of england--i say, sir, those minions of royalty concentrating in the east, talked of the violation of laws as a virtue, they demoralized the community by raising the floodgates of civil disorder; they gave absolution to felons, and invited the commission of crimes by the omission of duty. but, sir, the day of retribution is (i trust) not far distant, when those among us who to gain the favor of our enemy have betrayed their country, will sink into insignificance and contempt; the wages of iniquity will not shield them from due infamy. mr. troup rose to make an effort to put an end to the debate; a debate in which the great mass of the house were enlisted on one side, against the solitary gentleman from virginia (mr. randolph) on the other; and declared that he would call for the previous question if it was persevered in. mr. macon considered the present, from the turn the debate had taken, the most important question which had come before the national government for many years past, because it was evidently discussed as a war question, though the real question before the house, if adopted, did not declare war. it was not now a question by what means or by whose measures the nation was brought into its present situation; it must, however, be satisfactory to all, that the administration has done every thing that could have been expected, to avoid the present crisis, and to keep the nation at peace. if the british government would cease to violate our neutral and national rights, our difficulties would be at an end. it was no longer a question about the colonial carrying trade--that was at an end; because great britain might now be considered as possessing all the west india islands, and as we have now neither sugar nor coffee to carry, she has determined to execute with rigor her unjust orders against our carrying the productions of our own soil to any market except her own, or that of her allies. this is attacking the best interests of the country; indeed, it is taking the profits of both planter and merchant. hence, none of our exports bring a price by which we can live, except flour; and that would be no better than any other article of export, was it not that great britain and her allies, spain and portugal, want it for the support of their armies; it is their wants, and the great difficulty of getting their wants supplied anywhere else, that keeps up the price of wheat. notwithstanding these were his sentiments, he thought it would be going too far to consent, by the vote he was about to give, that he pledged himself to vote for any measure which the committee of foreign relations might hereafter bring forward, when he did not intend to vote for all the resolutions contained in the report which was now under consideration. our affairs must now command the serious attention of every man in the nation. we must either prepare to maintain the right to carry our produce to what market we please, or to be content without a market; to attempt another negotiation would be useless; every effort has been made in that way that could be made. indeed, no one has yet said that he wished another. he was as desirous of peace as he ever was; and if any plan shall be proposed by which the peace of the country can be preserved, and the right to export our native produce maintained, he should still prefer it to war; but if no such plan can be devised, he was willing to go to war for that right. he was also willing to declare the points to the nation for which we went to war, and rather than not succeed, he would carry it on for fifty years, and longer if necessary. he felt no hesitation in declaring, that he would not go to war to encourage the nation, or any part of it, to become manufacturers, (and it may not be amiss to observe that, from the day that this report was laid on the table, we have heard nothing about manufactures;) nor would he go to war for the purpose of building a navy. he mentioned this, because he had heard a good deal said of late about increasing the fleet and building seventy-fours. if, therefore, it was to be a war either to encourage manufactures or to build a fleet, he should be opposed to it; he would rather remain as we are awhile longer, bad as our situation is, than to stick these two set-fasts to the back of the nation, neither of which it could ever get clear of. a peace in europe might free us from our present embarrassments, but from the other, once established, we can never expect to get free. he could not agree with the gentleman from georgia (mr. troup) that the house ought now, by the previous question, to put an end to the debate; on the contrary, he wished every member might have full time to deliver his sentiments on this great question; for his part, he wished to hear the opinions of those who lived on the eastern frontier; he was gratified that several of the members of the western had favored the committee with theirs. he expressed this wish, because the part of the country which he represented was in the middle country, about the same distance from the mountains and the atlantic ocean, in no danger of being surprised or injured by any plundering party; but if the house was to do that which the gentleman from georgia seemed to desire, it would do no good; because if our object be to invade canada, it can scarcely be expected that this could be done with our utmost exertions by regular troops, hereafter to be raised, sooner than june or july. hitherto, our proceedings have been carried on not only with good humor, but with great urbanity also; to stop the debate, might have a tendency to change this, which no one would regret more than the gentleman himself. before we raise an army, and provide it with every thing necessary for marching, we have much to do. we have now no washington to command, and since the days of joshua, i have read of no such man; such men do not appear every century, and a thousand years will hardly produce one. it is quite probable, except the commander-in-chief, as good or better appointments may be now made, than were made at the beginning of the revolution; because there are now more men of experience in the country than there were at that time; and, also, because the men of talents and experience are much better known to the national government now than they then were; besides the selection of officers, the wagons, carts, and provisions, are to purchase, and almost every other article necessary for a marching army. it may not be improper here to remark, that this is not a government of confidence; and that, before we go too far, we ought, by some means or other, to know who is to command the army. there cannot be much difficulty in this, especially as every department of the government seems willing to raise a force adequate to the purpose for which it is wanted. and here, sir, permit me to say, that i hope this is to be no party war, but a national war, in which every person in the nation may have a fair chance to participate in the honor and glory to be acquired in the field of battle, and in defence of the rights of his country. such a war, if war we shall have, can alone, in my judgment, obtain the end for which we mean to contend, without any disgrace. friday, december . _foreign relations._ the house resumed the consideration of the report of the committee of foreign relations. mr. dawson.--when we are about to take a step, to assume an attitude which must change all our foreign relations, and may produce a change in our political character, it becomes us to summon all our wisdom--to collect all our moderation and firmness, and to unite all our energies and exertions. it becomes us to be "neither rash nor diffident," or, to use the language of one of the greatest men who ever lived in the tide of times, "immoderate valor swells into a fault, and fear admitted into public councils betrays like treason." such, sir, is the situation of the united states at this moment. we are about to take such a step--every sentiment therefore which can be offered demands its proportion of public attention, and renders that apology from me unnecessary, which, on any other occasion, common propriety would justify. after the select committee on our foreign relations had made their report, it seemed to me to be their particular duty to give to this house a full exposition of their present and ulterior views and objects, and of those of the administration, as far as they had ascertained them, founded on the information which, it is presumed, they possessed. for this i waited with patience, and have listened with attention and with pleasure--it has been given with promptness, with ability, and with candor; and with that perspicuity which frees the mind from all doubt as to the course which, in their judgment, we ought to pursue. and it now rests with us, sir, to determine whether we shall sanction their recommendation--whether we shall adopt those measures necessary and preparatory to a war in which it is probable our country will be engaged. sir, in the course of my political life, it has been my duty to meet and to decide on some of the most important questions which have been agitated in our public councils, and deeply involving the best interests of our country; these duties i have performed with fidelity and without fear, and i pledge myself never to depart from that line of conduct; and, sir, at no period of my life, nor upon any occasion, have i met any question with more serious deliberation and more undaunted firmness than i do the present. for several years past i have been an advocate for the adoption of every measure, the object of which was to place our country in a complete state of defence, and prepare us to meet any state of things. i have thought, and do think that preparatory and vigorous measures are best calculated to maintain the dignity and secure the peace and happiness of our country--that to be prepared to meet danger is the best way to avert it. these preparations have not been carried to the extent which i have wished--and yet, sir, i am far from thinking that my country is in that feeble state which some gentlemen seem willing to represent it. i feel myself authorized to state, that we have all the necessaries; all the implements; all the munitions necessary for a three years' close war against any force which any power can send to this continent. all that we want, are men. no, sir, pardon the expression--all which we want is an expression of the will of the nation. let this house, let the constituted authorities declare that will--let them declare "the republic to be in danger," and thousands and tens of thousands of our fellow-citizens will rally round the standard of their country, resolved to support her rights, avenge her wrongs, or perish in her ruin. yes, sir, should that awful moment ever arrive, which may heaven avert!--should we be forced into a war in the defence of our just rights, i trust and believe that there is not a man in the nation, whose situation will permit, who will not be ready to march at his country's call. no man more devoutly prays for peace than i do; no man deprecates large standing armies in the time of peace more than i do. i consider them the bane of society and the danger of republics; but, sir, as peace, honorable peace, is not always at our command, they must be resorted to in time of war. mr. nelson protested against the doctrine that in the vote he was about to give he should pledge himself to the support of whatever ulterior measures the committee of foreign relations might choose to adopt. he was sensible that he should hazard the censure of his associates in the republican cause by the observations he proposed to submit. nay, his republican friends might have the audacity to denounce him as an apostate, but the people had intrusted him with their dearest rights and interests, and he was resolved to pursue these according to his best judgment, regardless of the strictures of friends, and of the contumacious abuse of the press. proscription should have no influence on his conduct. and hence he must express his astonishment at those gentlemen who had threatened the house with the previous question, when they themselves admitted the vast importance of the subject under discussion. tacitus informs us that even the semi-barbarian germans, when war was to be decided on, took two several occasions to debate upon it--one, when they were in the full possession of their natural faculties; and, second, when they were excited by extravagant circumstances. but in these enlightened days it seems that we are to decide this all-important question without debate! he begged gentlemen to divest themselves of passion. it was not a time to bow to the influence of improper feelings. they ought calmly and coolly to meet the subject. they were to decide upon a question which was of no momentary nature. if they did go to war, it would be a lasting war; and he agreed with the gentleman from georgia, (mr. troup,) that if war-speeches were necessary to bring the house to the sticking point, it was much too soon to begin war. he proposed to consider these resolutions as a measure of hostility, according to the views of its advocates, and then as a measure of defensive preparations, agreeable to the spirit of executive recommendation, which was favorable to peace. what were the objects of the war? to establish our neutral rights, to exempt our seamen from imprisonment, the repeal of the orders in council, and of the blockades, and the security of the american flag. what would be the effects of war, the tocsin of which was for the first time sounded through the land? our country had been blessed by providence with more than thirty years of peace and plenty. the habits of the people were pacific. the trifling hostilities with england were of no consequence. but now the yeomanry of the country were to be called to arms as if our own territory were to be invaded. he sympathized with the sufferings of his impressed and incarcerated fellow-citizens; but would a territorial war exempt them from impressment? would it establish our neutral rights? certainly not. the way to enforce these rights was by a great maritime force, which the nation were incompetent to raise and support. but the advocates of immediate war said that if they could not obtain their objects by direct hostility on the ocean, they could do it by a _succedaneum_--by the exercise of the _lex talionis_ in an indirect way. after issuing letters of marque, they would resort to the invasion of the enemies' territorial provinces. he contended that this would be inefficacious, and maintained that to convert our merchants into privateers would be to turn them loose upon the seas as highway robbers. they would not be competent to carry on a war in this way. they would have abandoned their peaceful pursuits; they would accept a fraternal embrace of french subjects; fight side by side with them, and submit themselves to the will of the french emperor. however scrupulous gentlemen might now be, when the hour of danger came they would accept the alliance of france. the national interests would be identified with those of the european continent. we should adopt the continental system, in which our liberties and independence would be jeopardized. he deprecated the invasion of canada as an act of foreign conquest. we could not suppose that great britain would slumber over our occupation of it, and where should we find a stationary force able to keep possession of it as a conquered province? admit it as a sister into the union, we dare not abandon it at the peace, and therefore we could not give it back for the restoration of our maritime rights. but suppose that great britain should be brought to her knees, (and this was all the most valiant of us would ask,) what have we to expect, if the power and the commerce of england should be thrown into the arms of france, from the high, the mighty, the imperial napoleon? would he respect us more than england would? they both follow their own interest, as we ought to follow ours. what would be the effect of this war upon ourselves? he feared a war, not from a puerile fear of its expenses or of death, but from a manly dread of the consequences of this war, which must last as long as england had a ship at sea, or a man to man it. it must link us to the destinies of continental europe; it would place us under complete foreign influence and foreign dominion; it would change our political institutions. the sages who framed the constitution, and illumined it by their commentaries, had predicted that it would not suit to stand the shock of war. the republic would be ruined by war. we do not want courage. the revolution had shown proofs of the greatest valor ever exhibited by human nature. but few circumstances besides invasion would justify war. it would strengthen the executive arm at the expense of the legislature. the chief magistrate would have to carry on the war. he would, upon the plea of necessity, change our appropriations from one object to another. the constitution would be sapped. the legislative power would be destroyed. he cared not for the prices of cotton and tobacco as compared with the constitution. war would introduce a slavish subordination among the people. they would lose their republican simplicity and their republican independence. they would neglect their homespun for the military plume and the gilded epaulette. their morals would become depraved. love of idleness, extravagance, and neglect of the dull pursuits of common life, would take place. the desire would again prevail of acquiring large fortunes by aid of invasion, at the expense of the war-worn soldier whose fruits would be taken away for a mere song, as they had been at the close of the revolution. cupidity would be introduced, and pervade the public mind. i have made these remarks, mr. speaker, to repel the declarations of gentlemen, that to vote for this resolution would pledge me to embark in war. if war is necessary, i would not shrink from it, big as it is with calamity and ruin. it will be the duty of government to obviate some of its evils. i am in hopes, too, sir, that i have been so fortunate as to check the intemperance of the youth of my country. they will excuse me. i trust we may not be led away by the ardor of youth or of old age. i shall vote for the increase of the regular force, to go hand in hand with my friends, even in a war, if necessary and just. i have not made this speech to prove that i am against war. mr. findlay said he had frequently observed members, after a question had undergone a very tedious discussion, say that if the yeas and nays had not been called they would not have spoken on the question, but these having been called, they must assign the reasons for their votes. he did not approve of that principle, because if it was to be reduced to practice every member would speak to every such question, and there would be no end of the debate. however, on this question, though he thought it had been sufficiently discussed, yet he deemed it proper to express a few thoughts, not so much to give the reasons for the vote he designed to give, as to explain the principles on which he designed to give his vote. he designed to vote for the resolution before the house, but not surely for the same reasons or with the same determined views that some honorable members have expressed. he would not dwell on the tyrannies and robberies of either the more ancient or modern despots or governments, of the old world, but confine himself to such as had a direct relation to the question depending before the house. that the aggressions and bad faith of the british government, and the recommendations of the executive, were the foundation of the resolutions before the house, was admitted by all that have spoken on the question. in order to be understood he would take a concise retrospect of our relations with britain since nearly the commencement of the present government of the united states. during the first congress an indian war was commenced on our western frontier, and conducted as usual with savage ferocity; but, believing that it only resulted from the combination of a few tribes, our defensive measures at first were weak, and our first attempts unfortunate. but it soon became such a tedious and expensive war as to require for several years the exertion of all our resources. it had at last a fortunate conclusion; but during its progress our government and the citizens were fully convinced that the indians were encouraged and supported by the british government. we all knew that for several years past indian councils have been convened by british agents, who influenced them by presents, and employed them as emissaries to excite the peaceable indians in our own territories to go to war against our new and dispersed settlements. it would be infidelity to doubt the truth of the indians having received their arms, &c., from british agents, and though these british allies have got a check in the late engagement, yet it also has cost us dear. we have no ground to conclude that the danger is over; revenge is the predominant passion of savages, and though we have not such unequivocal proofs of the british in the present instance exciting the indians to war, and supplying them for that purpose, as we had in , when president washington received a copy of lord dorchester's speech to the indian tribes, encouraging them to war against our settlements, and promising them a co-operation of the british force--the copy of which gracious speech several members yet in congress saw at that time, and every member has heard of it--through a kind providence that co-operation was prevented by the defeat of the british armies in europe. though we have not at present such explicit proofs that the indians at present are acting as british allies, yet we have as much proof as the nature of the case can afford, and it would be very unwise if we did not act accordingly. from the above view of the subject, if we had no other cause, i deduce the expediency of increasing our regular force agreeable to the recommendation of the president and of our committee. i think more has been said about taking canada than was necessary. it is true, that during the same indian war, it was the opinion of our most sage politicians that we never could be secure against indian war till we had possession of canada, and by that means have it in our power to cut off the communication between foreign nations and the indians on our frontiers and in our own territory. they said that neither our revenue, our credit or population would at that time justify the attempt; but that we were rapidly increasing in population and all other resources, while the nations of europe are wasting their own strength, but the time was fast approaching when we must repel national insults or surrender our independence. this was said particularly with respect to the impressment of our seamen. at the commencement of this outrage, never committed by any other nation but britain, the public mind was very sensibly affected by it, but time and the frequent repetition of the injury seems to have rendered the public feelings callous. this put him in mind of what he had sometimes observed, that when the savages scalped a few families on the frontier, the whole country was terribly alarmed, but that after the savage butchery had continued and extended itself for some time, the sensibility seemed to abate. this had been evidently the effect of the continued impressment of our seamen. mr. roberts observed he should offer no apology for rising so late in this discussion, as the short time for which he was about to ask attention would not justify it. the eloquence and talents which had been so abundantly exhibited on this occasion, would not admit of more than a concise expression of his opinion, without subjecting him, justly, to the charge of presumption. when the report now under consideration came first before the house, i was, said he, of the number of those who were disposed to decide upon it without debate. i have frequently been in the minority on the question of adjournment, from a wish to reach the question on the resolutions. under these impressions i confess i viewed the challenge, or rather the invitation, given by the gentleman from tennessee, (mr. grundy,) "to debate this subject now, if it was to be debated at all," more as the impulse of an ingenuous mind, preferring, on all occasions, an open course, than the dictates of prudence or necessity. nor was it till after the gentleman from north carolina (mr. macon) had invited and urged discussion, that i became disposed to join in opinion with them, the correctness of which the debate of this day has very much strengthened. by the adoption of this report, we are entering on a system of operations of the utmost national moment; the effects of which the wisest amongst us cannot fully foresee, and on which we have no choice but to act. the discussion has already elicited opinions, which it is well to know exist; and the more so, since some of them admit the holders to vote for the report, while they allow them to be adverse to the measures which are necessarily to follow it. a little time may be well spent in comparing sentiments in this stage of the business, as it may be conducive to celerity of movement in the sequel, and give more certain effect to the measures which must ultimately be followed. every political community must, of necessity, possess rights, which it may enjoy independently of, and in common with, every other. one of those rights is an uncontrolled jurisdiction over its own territory. it has long ago been found necessary for nations to settle by convention on the great scale where the limits of territory shall cease, and where the high seas shall commence. this convention, or law, has determined that the ships of neutrals shall be a part of the national territory; so long as they are careful to preserve a pacific character. through the intervention of vessels navigating the high seas, nations in amity are enabled to overcome the want of proximity, and all the purposes of trade and commercial intercourse may thereby be extended, as well to the inhabitants of the remotest corners of the earth, as to those only divided by a geometrical line. an attempt to interrupt this intercourse by a third nation, is so serious an act of hostility and wrong, as not only always to justify, but to demand, resistance. the gentleman from virginia (mr. randolph) has said the government would not, on a former occasion, go to war, when their trade, which consisted in carrying the produce of one foreign country to another, was annoyed and cut up; and why not, he says, be pacific now, as well as then? while i agree that our national rights extend to both alike, admitting, however, every government to make her own municipal regulations, i must be allowed to consider our direct export and import trade much better worth contending for, than what has been denominated our carrying trade. the cultivators and owners of the soil have never shown any disposition to fight for the latter trade; and for a very plain and consistent reason. war is sure to bring on its train of evils and expense; and where it is obvious that these will amount to more than the loss of the exercise of a right in its nature of but transitory use and minor interest, a free people may with propriety refuse to hazard them for its support. it is not for such a people to war for a speculative right or an empty name. the carrying trade, it must be owned, was profitable in exercise, but it was a profit that could be given up without vital prejudice to the national interests. not so with our fair export trade. to yield this would be absolute recolonization. it must not only affect us in the great resources of national strength, but it must break the spirit of our citizens, and make them infidels in the principle of self-government. it would, at the same time, add means and facilities to the aggressing nation to multiply her outrages. give up the export trade to great britain, and you will next be required to give up the coasting trade, and to admit her navigation act to as complete operation in our bays and harbors, as it now has round the limited shores of the british isles. the spirit of commercial monopoly she has so pertinaciously manifested, proves that her ambition craves more than her means can aspire to. the wrongs she has long been and still is committing towards these states, have assumed a character that imperiously calls for a resistance, made by all for the benefit of all. i cannot with some gentlemen doubt the sufficiency of this government to conduct a war. however congenial a state of peace may be to a republic, the constitution of the united states must have been framed with a view to war as well as peace. the members of the grand convention had almost all been active characters in the revolutionary war. on the subject of war they were certainly more than mere theorists. honest apprehensions have, too, been entertained in times back of the government being too strong; i think, however, that we may look with well-grounded confidence for complete sufficiency in it; without being alarmed at the reverse of the picture. while the power of declaring war is vested in congress; while levies and supplies are within its control; while a check on the appointing powers is vested in the senate, and a periodical termination of the president's office exists; the executive arm, though sufficiently untrammelled for necessary and useful command, is effectually paralyzed as to the exercise of power to affect or change the free features of the government; unless indeed the representation should become utterly corrupt, an event no one can believe possible. i feel much satisfaction at this moment in seeing a man at the head of the government who had a conspicuous concern in framing the constitution, and whose official duties have since closely connected him with the administration of government under it. in the message out of which the report before you has sprung, not the slightest doubt is discoverable of the efficiency of our institutions to sustain us under every exigency that may overtake us. my own reflections on this subject (and they have neither been light nor transitory) have neither served to alarm nor intimidate. i repose in safety on the saving maxim, "never to despair of the republic." mr. mckee.--mr. speaker, i rise to address the house, at this late hour of the debate, with reluctance; but the importance of the question must be my apology. some gentlemen, in felicitating themselves on account of the temper of the house, evidenced by the determination to adopt vigorous measures against england, have expressed a regret that measures of a similar character had not been resorted to long since. in this sentiment i cannot agree. in reviewing past times, we cannot but perceive that it has been the desire of the government to avoid being involved in the war with which europe has been so long desolated, and by dealing out justice to the belligerents, respectively, with an impartial hand, to preserve our neutrality, permitting our citizens peacefully to pursue their private avocations, reaping the rich harvest arising from our neutral commerce. this was certainly a wise policy, and the distinguished success with which it was attended is a clear evidence of its wisdom and propriety. why, then, should it be condemned? have any people ever acquired individual wealth with so much rapidity; or have any been more happy in the enjoyment of domestic tranquillity than the people of the united states? none. the wish of the late and the present administrations was to continue this state of happy prosperity as long as it was practicable, by making acts of wrong and vexation of a minor sort, growing out of the violence of the times, the subject of negotiation, rather than a cause of war. and, is this course of policy now to be condemned, and regrets entered up that we have not been at war years ago? at the opening of the session of congress, in december, , after the disavowal of erskine's arrangement, when our relations with england assumed a more unfavorable aspect than at the close of the summer session, the committee on foreign relations, with a desire to preserve our neutrality, presented to the house a measure usually termed macon's bill, no. ; a measure which it is now known was approved by the administration, and had the sanction even of a higher authority, (if such there be.) this measure was calculated in its operation to present serious difficulties to those nations by whom the rights of our neutral flag were disregarded; and, at the same time, it left open to the enterprise of our citizens those channels of trade, not included within the scope of the orders and decrees of the belligerents, as they then stood; a commerce as extensive and valuable as we can expect to enjoy in times of general peace. it was, however, opposed, and successfully, too, by war speeches. it fell, and by its fall the administration were driven from their ground, and the hopes of maintaining much longer the neutrality of the united states also fell with it. this unfortunate event was succeeded by the act of may, . by this act, the belligerents were invited, in a new form, to withdraw their orders and decrees; promising, on our part, in case either of them should accept the invitation thus given to both, to put in force the non-importation sections of the non-intercourse law against the party persevering in their orders or decrees for three months after their adversary had accepted the invitation thus given. the law of may, , was enacted with a hope that the terms thereby offered to the belligerents, respectively, would induce the one or the other to accept them, and withdraw their orders or decrees. and an expectation was also entertained, that if one of the parties could be induced to relinquish their orders or decrees, the other party would follow the example; and, if this just expectation should be met by a perseverance of either of the parties in their orders or decrees, after their adversary had accepted the invitation thus given, it would test the sincerity of the various and repeated declarations made by them, respectively, that their orders and decrees, affecting our commerce, were reluctantly issued in their own just defence. those also who preferred war to the preservation of our neutrality, and by whom macon's bill was rejected, would be relieved from the embarrassment of going to war with two of the most powerful nations in the world, or of selecting which of the two should be made our enemy, at a time when we had just cause of war against both. the fixed and determined hostility of one of the parties towards the united states would be (as it certainly now is) most clearly proved; and thereby our measures of hostility rendered the more necessary, and more likely to receive the unanimous approbation of the american people. my opinion, therefore, is, that it was wise to preserve our neutrality as long as possible, making an appeal to force the last reluctant resort; and, inasmuch as the majority of congress, in , resolved to change the peaceful character of this country, the intervening period has been employed in a last effort to avert the calamities of war; the result of which has relieved this government from any liability to the charge of partiality to either of the belligerents, by compelling one of them, by their own act, to present themselves as the object of our just hostility. mr. stanford said, as the resolution before the house contemplated an additional army, and from the avowal of its friends, involved in it the question of peace or war, he felt the desire to assign the reasons of his vote upon so important a subject. he was the more disposed to do so as he should probably find himself in a very small minority upon the question. he was not flattered, he said, with using arguments which would convince others; but for himself he felt their force strong enough to fix his mind against the measure. if he were to vote, he said, for the proposed army, he should vote inconsistently with all his former opinions and principles upon the subject, and he never could think of acting a part inconsistent with himself, and that more especially when all his experience had gone to confirm his first impressions, his honest prejudices against standing armies. such establishments had always proved the bane of free governments, and he could not see how we were to get along with them, and remain, as he believed we were, the freest and happiest people upon earth. but, sir, we are told war is to be declared in certain events, and that the army proposed is to invade and take the canadas. we are then to pass out of the limits of the united states and wage a war of the foreign offensive kind! if such was the contemplated use of this army when raised, he was still the more opposed to the measure. he was against the war itself, and the policy of it, and could by no means yield his vote to bring it about. that there were sufficient cause of war, he was ready to acknowledge, and he was not disposed in any the least degree to palliate the offences of great britain, or that of any of the other belligerents, committed on the persons and property of our citizens. all of them had deserved war at our hands, but we had at no time since the commencement of our present government seen it our interest or policy to give into it, in the open and declared form, nor that of any other form, except that of a _quasi_ character which happened under mr. adams's administration. the question never had been whether we had or had not cause of war, but whether the true interest of the united states did not, under all circumstances, call aloud upon us to cherish peace, and to avoid war and its evils as the last of the alternatives before us; and this, said mr. s., he would be able to show was the republican doctrine, as well in the old minority times as since that minority grew into a majority. the gentleman from tennessee (mr. grundy) had made a direct appeal to the republican party, and endeavored to rally and unite them in this, to them at least, new doctrine of war. if the appeal of the gentleman had any reference to him, he would beg leave to deny some of his positions. he had himself had some small share to act in the political scenes of ' - , and he was glad to find from the gentleman's declaration that he had joined in the "clamor" of the day, to pull down the then federal administration for the unjustifiable war which they had gone into with france. mr. s. said he knew he had joined in it most heartily. he believed he then acted right in all he did to supersede that administration, and he still believed he was right. the best interests of the country forbade the war, and so the people determined, when ultimately they came to decide the question. that party thus ousted by the public voice, the present republican majority was brought in upon their own professions of better principles, the love of peace and economy. but now, forgetting our old professions under a french crisis, we had raised the cry of war under a british one, and nothing short of it was to save our honor. mr. s. declared if there was any difference in the causes of war then and now, he thought it turned most decidedly in favor of the former period, since the more intolerable outrage in the case of the chesapeake had been at length atoned for. what were the facts? french decrees existed at that time against your rightful commerce--he spoke of the arrêttes or decrees of the french directory--these had the same practical effect on our maritime neutral rights that the british orders have now. french cruisers waylaid the mouths of your harbors, and captured your vessels; and the first successful act of the united states after the quasi-war commenced, was, the taking of one of these cruisers in the mouth of one of our harbors. but, said mr. s., the gentleman from south carolina, (mr. calhoun,) tells us it is a principle of honor in a nation, as in an individual, to resist a first insult. if such doctrine is to be admitted, when should we have had a moment's peace? from one or the other belligerents of europe, since their late wars commenced, we have never been without just complaints against them for some violation of our neutral rights, and of course must have taken an early share in their wars. the truth is, we cannot liken, nor will the similitude hold good between an individual's honor, or his sensibility to it, and that of a nation's. a single impressment or capture may be well admitted to form a ground of reprisal and war; but we should have been a ruined country long ere now, if, under the existing circumstances of the world, and belligerent europe, we had yielded to this quickness of sensibility, and had gone to war for a first and single instance of aggression from either of the belligerents. the same gentleman argues that every thing now calls upon us to make a stand; that there was no danger to our liberties in a standing army of twenty or thirty thousand men, and that all admitted there was justifiable cause of war, and he believed it had now become necessary. this was declaiming, mr. s. said, very handsomely upon the subject of war, he would agree; and he very well recollected we had heard the same doctrines precisely, and he thought he might be permitted to say, a strain of declamation, at least equally handsome, upon the same subject, and from the same state, in -' .[ ] mr. s. contended as the then doctrines of war, (and it must be admitted the causes of it were also alike in their character,) it was fair to expect that in due time public opinion would come to be the same in both cases. but, mr. s. said, he could not perceive how the present, of all others, had become the necessary and accepted time for war with great britain. the attack on the chesapeake frigate had been lately atoned for, to the satisfaction of our government; and, he trusted, had not been so done as to aggravate the crisis of affairs between the two countries. if calculated to do so, our government could not have received it. the impressment of our seamen was a just complaint against the british government; but it commenced under the administration of general washington, and no one would say he was less sensible to national honor and independence than ourselves. under all the circumstances of that cause of complaint, he did not think it a cause sufficient for him to depart from the neutral ground he had assumed; nor was the annoyance of our commerce less vexatious in his time than since. in like manner, under mr. adams's administration, the same complaints existed, though in that of the latter, not, perhaps, to the same degree; and, under the eight years of mr. jefferson's administration, the same state of things continued, certainly with an increased degree of violence, to which was also added the more aggravating insult upon the chesapeake. mr jefferson had never been suspected of partiality for great britain, and then, indeed, the accepted time had come for a war with that government; all parties were united, and pledged themselves to support him in the war. the pulse of the nation beat high for it. but he felt, because he knew, that peace was the best interest of his country, and forbore to call congress together. he had always admired the man; but, upon that occasion, he felt more than a sentiment of admiration toward him. when, at length, wrongs had thus accumulated, and called for some system of counteraction and resistance till negotiation could be farther tried, the embargo was resorted to in preference to war; and, when that was done away, a system of non-intercourse was substituted, and to that again succeeded the present alternative law of the same kind; the non-importation system which has grown out of this with great britain has not been tried one whole year yet. if gentlemen will have it that this is the accepted time for war, how has it happened that we have not had it before? our councils may be presumed to have been as sensible to aggression, and as patriotic to redress it, as we now are. but, mr. speaker, said mr. s., opposed as he was to the idea of the united states becoming one of the belligerent nations--to the linking our destinies with those of the european powers; to the taking any share in their present conflicts, if his country once determined upon it, he would not then hesitate to vote any force, or other means to bring it to as speedy and as happy an issue as possible: until then he should preserve his own consistency; and contribute in no way to bring about that state of things which, he believed, would prove most ruinous to his country. mr. king.--mr. speaker, i should not have troubled this house with any remarks of mine, had it not been for the observations which have just fallen from my colleague from north carolina. i shall not attempt, sir, to follow that gentleman in the history which he has given of the progress of party in this country, but shall content myself with stating, that, in our sentiments, we entirely differ; his is the doctrine of submission; yes, sir, the most abject submission; mine, i trust, is not. i am in favor of the resolution now on your table. i am aware, sir, of the many important considerations which will naturally suggest themselves to the mind of every real friend of his country, when he views the consequences which may result from the adoption of the measure now contemplated. when, sir, the habits of a nation, ingrafted, as it were, in its very nature, are about to be departed from; when the destinies of the country are about to be launched on an untried ocean, and when the doubt is about to be solved, whether our republican government is alike calculated to support us through the trials and difficulties of war, and guide us in safety down the gentle current of peace, i am aware, sir, that we should pause and ponder well the subject; that we should divest ourselves of those warm feelings which most generally take possession of our minds on viewing the unjust prostration of the rights of our country. sir, that interest which i feel, in common with others, on the decision of a question of such magnitude and importance, will, i trust, induce this house to bear with me a moment, while, in a few words, i explain the motives by which i am actuated in giving my decided approbation to the resolution now under consideration. if, sir, i were merely to turn my attention to the local situation of that portion of the country which i have the honor particularly to represent; its extensive and exposed seacoasts, combined with its present commercial advantages; i should, without hesitation, give my vote to the proposed measure. but, sir, as in my individual capacity, i feel at all times willing to make not only pecuniary sacrifices, but to expose my person in vindicating the rights and interests of my country, in my representative capacity, i will undertake to say, that my constituents will do no less. sir, the demon avarice, which benumbs every warm emotion of the soul, has not yet gained the ascendency in the south: the love of country animates every breast, and burns with inextinguishable ardor. sir, they feel in common, i trust, with a great majority of every portion of this union, the degradation of our country, in submitting for a moment longer to the dishonorable terms proposed directly or indirectly by the british government. mr. speaker, i hold it to be correct, that, in discussing a subject of such importance, a view of the various matters necessarily connected with it, will not be considered irrelevant: but, sir, i will not weary the patience of this house with a detail of injuries, unparalleled in the history of former times, wantonly inflicted on a nation which manifested to the whole world her sincere desire to support the neutral stand which had been taken at the earliest period of her government, and most tenaciously adhered to. we have carefully avoided, mr. speaker, any participation in that system of politics which has convulsed and distracted the european world. we have restricted ourselves in the full enjoyment of our rights, lest by strictly enforcing them, we might produce a collision with any nation, however little her conduct might be guided by the principles of equity. sir, we have borne with injury, until, in the language of your committee, forbearance has ceased to be a virtue. we have remonstrated, we have appealed to the justice, to the interest, of the two great contending powers of europe; every effort proved abortive; our calls for justice were drowned in the declaration that their measures were merely retaliatory, and not intended to interfere with neutral rights; thus, sir, the matter rested, when specific propositions were submitted to each. yes, sir, by an act which has placed the impartiality of our country beyond the reach of suspicion, we demanded of each the revocation of her obnoxious edicts as the only means of preserving our friendship. we all know what has been the consequence: france has met our advances, has embraced our propositions. great britain not only refuses a repeal on her part, but, while she affects to lament the effects produced on neutral rights, takes the most effectual methods to render them perpetual. sir, blindness and ignorance itself can no longer be deceived by british policy. we have been told, sir, that this will be a war for the support of the carrying trade; let me here remark, and i wish to be distinctly understood, as avowing my determination never to give a vote, so long as i have the honor of a seat on this floor, which will involve this country in a war, for the recovery or support of this extraneous species of commerce. i believe i shall not be incorrect when i assert, that nine-tenths of this country never did and never will derive the smallest benefit from it. but, sir, the right to carry in our own ships the produce of our own country to any quarter, not thereby violating the laws of nations, or contravening legitimate municipal regulations, is one which i never will yield; for, sir, in doing so, we paralyze the industry of our citizens; we give a fatal blow to the best interests of our country. yes, sir, we yield the principle, we invite to further encroachments. our country, sir, is agricultural, but so intimately blended with commerce, that the one cannot long exist unaided by the other. sir, i will not yield an inch of ground, when, by so doing, i destroy an essential right of my country--or sap the foundation of that independence cemented by the blood of our fathers. we were told by a gentleman from virginia, (mr. randolph,) a few days since, that we have sufficient cause for war. i ask you, then, sir, why do we hesitate? shall we always yield? shall we always shrink from the contest? the adoption of this resolution is the touchstone--by it we rise or fall. we have been asked, mr. speaker, why not lay upon your table a proposition to go to war? it is there, sir; it is contained in this resolution; the moment we give it our sanction we declare our fixed resolve to render effective the force contemplated to be raised. yes, sir, unless great britain manifests a disposition speedily to do us justice--by her acts, sir, not by her words. the gentleman from virginia calls upon the representatives of the seacoasts, of the slaveholding states, and asks if they are willing to say to england "we intend to go to war with you." does the gentleman mean to excite our fears for the loss of our property? as one of the many on this floor who stand in the situation mentioned by that gentleman, i step forth to declare for myself and my constituents, that, when loss of national honor is placed in the scale, and attempted to be balanced by pecuniary interest, we will, without hesitation, kick the beam. but, sir, we are now contending for the restoration of our rights, the deprivation of which strikes at the very foundations of our prosperity. sir, to us, it matters little whether our cities tumble into ruin by desertion for want of employment, by poverty produced by british wrongs and aggression, or, in vindicating the cause of our country, fall by a quicker process. sir, i have no fear of invasion, and, therefore, have no fears arising from the black population, which strikes with so much horror on the sensitive mind of the gentleman from virginia. for my country, mr. speaker, i lament its existence; i view it as the bane, the curse of the land, and most sincerely, sir, do i wish that a second moses could take them by the hand, and lead them in safety to a distant land, where their cries would never more strike on the ear of sympathy. we have been told, sir, that this will be a war of aggrandizement, a war of conquest. i am as little disposed to extend the territory as any other individual of this house. i know that dissimilar interests must and will prevail from a too great extension of our dominion. but, sir, we will not here enter into a discussion, whether an accession of country would or would not conduce to the interests of the government. sir, this will be a war forced upon us; we cannot, under existing circumstances, avoid it. to wound our enemy in the most vulnerable part should only be considered. sir, i trust, if our differences with great britain are not speedily adjusted, (of which, indeed, i have no expectation,) we shall take canada. yes, sir, by force; by valor; not by seduction, as the gentleman from virginia expresses it. i have no reliance on their friendship--i hope it will not be calculated on. sir, i am not deterred from the firm purposes of my mind, by the predictions of the gentleman from virginia. i have no fears, sir, that the people of our country will desert their government while asserting the rights of the country; and i must believe, that gentleman's assertion to the contrary notwithstanding, that virginia will not be the last to afford supplies. mr. boyd.--mr. speaker, i should not have risen, on the present occasion, had not the honorable committee of foreign relations requested all those that did not intend to vote for such ulterior measures as they might hereafter find necessary to bring forward, would not vote for the present resolutions, as they were a part of a system that might eventuate in war, &c. from those observations, i feel myself, and those that i in part have the honor to represent, called on to say how far i will go, and how far i will not go. sir, when we talk about war, we ought to know for what we are going to wage it, and to see that the means are commensurate to the end. let it not be thought by this that i have any apology to make for great britain, or her manifold wrongs. i have none. i say, perish the heart, the head and the tongue, that will attempt her justification or apology? no, sir, they are a nation of pirates, and have committed many wrongs on us; and it becomes us to look for our remedy, and how it is to be obtained. we are told that these resolutions are a part of a war measure. i do not receive them as such, but as preparatory to what may happen or become necessary. but, for argument sake, suppose it so, and that we are to have war--your army raised, and ready to march to the canadas; with how many are you going to take them? in my opinion, not less than fifty thousand men will be required. suppose the english should be driven out of spain and portugal, (which may by this time be the case, or it may soon be so,) what number of troops can she send to reinforce her possessions and meet you? but, say some gentlemen, american blood has been spilt, and we must avenge it. how is that to be done? for gallons will you spill torrents; or am i to understand that we shall have war without bloodshed? sir, let those that think so turn their attention to the revolutionary war--the sugarhouse in new york, the prevost, the prison-ship, the wallabout, fort washington, white plains, princeton, trenton, monmouth, brandywine, guildford, and many other places. new jersey has had her full share of the fighting--other states the benefit; and if we have war again, we shall have our share of fighting--others the loaves and fishes. but, sir, i will not complain: we obtained our liberty, and i am willing to support it in the best possible manner. but here another question arises. you go to war for the right to export our surplus produce--tobacco, cotton, flour, with many other articles. let me ask, what will be your export while that war continues? will you have any? i think not. but i will suppose that you could export without interruption; would the whole of the exportable produce pay for the war during the continuance of it? no, it would not. sir, it would take less money from the government to pay for it, and make a fire of it. nearly thirty years have elapsed since the revolutionary war, and that war not half paid for. is not the war-worn soldier calling on us every day with his demands? you are about to drain your treasury, borrow money, enlarge your pension list, build additional hospitals, increase our national debt, not to be extinguished or paid off, but to be a lasting burden on the people. but, say the honorable committee, our honor requires it. it is well; i honor the spirit and magnanimity of the committee, and have no doubt of their courage and zeal for our country's rights. but, sir, you must take young men for action--old men for counsel. it is an easy matter to go to law or war, but it is a hard matter to get out of it. the gentleman from maryland, (mr. wright,) in defending the character of the soldier, has given us a quotation, viz: "honor and shame from no condition rise, act well your part, there all the honor lies." i will give him another, from the same authority, viz: "a wit's a feather, a chiefs a rod;[ ] an honest man's the noblest work of god." but, apart from this, let us suppose war, and admit that it will be successful, so far as proposed--the british driven from the canadas and halifax, and their trade intercepted for years to an extensive amount--what then has she to hope or fear from us? nothing. will she then respect our rights? no. but i will suppose that we force her to a treaty of amity and commerce, acknowledging our rights to the utmost of our wishes; how long will she keep it? not an hour longer than suits her convenience or interest. there is no trust to be put in her compacts. witness erskine's arrangement. i say, keep on your restrictions; keep the country in peace, if possible, under all your privations, and they are many. has not our country increased in wealth and population, in a superior degree to any country on earth? are we not at this moment in the enjoyment of peace and plenty at home--every man under his own vine and fig-tree, and none to make him afraid--with complete protection for person and property? yes. but our merchants must be protected--they have a right to our protection, say some--it is the merchant that gives life and spring to agriculture. i deny it. it is the planter--the cultivator--that is the foundation on which every other branch of our associated population depends; and it is the surplus of his productions that makes the merchant, and his profits that make the banks. you have made many laws for their protection; they have disobeyed them all, and will disobey them. have they not told you, continually, to let them alone; that they knew their own business best? sir, before i would engage in a war, to which i could not see a prospect of a favorable issue, i would let them alone. sir, the president is made, by the constitution, the treaty-making power; he is also to give us the state of the union. he is the executive. he has given us the state of the union, and made his requisitions; and if i give him what he asks, i give him enough; and _that_ i am willing to give, and more, when he shall require it. but i am not to be forced further yet. it appears to me that the honorable committee has a mind to _gideonize_ us--rejecting the fearful and faint-hearted. will they prove us by the _waters_, and reject all such as will not lap as the dog lappeth? for, sir, they have told us that all that did not intend to vote for such ulterior measures as they might have occasion hereafter to bring forward, ought not to vote for the resolutions. now, sir, it remains for me to tell them and the house, that i will not leave the ranks of my country. i will vote for the resolutions, and consider myself at liberty to vote hereafter as the nature of the case may require, and my conscience shall direct. i have no more to say at this time. monday, december . _foreign relations._ the house then resumed the consideration of the unfinished business, being the report of the committee of foreign relations. mr. randolph said that he could not express his deep sense of the politeness of the house, except by the regret he felt at the very poor return which they were about to receive for their indulgence. he lamented that it was not in his power to thank, in the name of all the old republicans of and , his worthy friend from north carolina, (mr. stanford,) for the sound, sensible, pertinent, and constitutional speech, which he had delivered the other day against this resolution. but he feared, if a writ were to issue against that old party--as had been facetiously said, in another body, of our valiant army--it would be impossible for a constable with a search warrant to find it. there must be a return of _non est inventus_. death, resignation, and desertion had thinned their ranks. they had disappeared. new men and new doctrines had succeeded. he was astonished at the frailty of some memories; or rather, at their aptness to remember to forget every thing but what subserved their present purposes. the nation had been brought into its present alarming and unprecedented situation by means in nowise unaccountable--by steps as direct and successive as hogarth's celebrated series of prints, "the rake's progress," beginning at the gaming table and ending in a jail, or in bedlam. our difficulties began to show themselves in and , when _a wise man from the east_ (bidwell) was sent to govern the american house of commons, in quality of manager. with what degree of fidelity he had discharged this duty, we might judge from that which he had since displayed in far inferior trusts. we had commenced our system somewhat on the plan of catharine of russia, when she lent her nominal aid to the coalition; we had dealt even more profusely than she in manifestoes; we began, under the instigation of mercantile cupidity, to contend by proclamations and resolutions for the empire of the ocean. but, instead of confining ourselves as she had done to this bloodless warfare, we must copy the wise example of her successors, and after our battle of friedland, he supposed, we also should have our peace of tilsit. he gave the little minority praise for having kept the administration in check, under the salutary restraint of a rigorous examination of their acts--although the administration had run away with the credit of wishing to take a strong attitude, and had thrown the blame of thwarting their measures on the opposition. that opposition had been composed of all sects and persuasions; but he now perceived that the greater part of them (the federalists) had gone over to the court party, for a very obvious reason--because they foresee at the end of the journey, mr. speaker, that your defeat will secure their triumph. i wish the gentlemen on my left (the majority) joy of their new travelling companions. the gentleman from maryland had expressed surprise at mr. randolph's manner of speaking of our origin from an english stock. could that gentleman repose his head upon his pillow without returning thanks to god that he was descended from english parentage? whence but from that origin came all the blessings of life, so far as political privileges are concerned? to what is it owing that we are at this moment deliberating under the forms of a free representative government? suppose we had been colonies of any other european nation--compare our condition with that of the spanish, portuguese, or french settlements in america? to what was our superiority owing? to our anglo-saxon race. suppose we had descended from those nations--from the last, especially, which stood self-condemned, on her own confession, as incapable of free government, hugging her chains, glorying in her shame, priding herself in the slave's last poor distinction, the splendor of her tyrant master? had we sprung from the loins of frenchmen, (he shuddered at the thought!) where would have been that proud spirit of resistance to ministerial encroachment on our rights and liberties, which achieved our independence? we should have submitted to the tea tax, the stamp act, and the whole train of grenville and north ministerial oppression. that which we lifted our hands against in determined scorn, would have been deemed an indulgence. look at the province of new spain, or mexico, as it is, not with strict propriety, called. with a physical force greatly superior to ours in , she had not dared to burst the chains of spanish despotism, divided, weakened, almost extinct as was the spanish monarchy. mr. r. adverted to historical documents to show that america ought to be proud of her anglo-saxon descent. we were vastly particular about the breed of our horses, cattle, and sheep, but careless of the breed of human nature. and yet to our anglo-saxon origin we owed our resistance to british tyranny. who were the members of our first congress? from massachusetts, samuel adams, (and t'other adams too,) robert treat paine, not _tom_. from connecticut, roger sherman, a man of the most profound political wisdom. from new york, james duane, john jay. from new jersey, william livingston. from pennsylvania, thomas mifflin. from delaware, cæsar rodney, thomas mckean. from maryland, william paca. from virginia, peyton randolph, george washington, patrick henry, richard bland, edmund pendleton. from south carolina, henry middleton, john rutledge, christopher gadsden, edward rutledge. in what school had these illustrious men formed those noble principles of civil liberty asserted by their eloquence and maintained by their arms? among the grievances stated in their remonstrance to the king, a "standing army" met us at the threshold. it was curious to see in that list of wrongs, so many that had since been self-inflicted by us. it had been asked, why was the country unprepared for defence? was he expected to answer this question? the administration and their overwhelming majorities must answer it. they had wantoned in the plenitude of their power. who could say them nay? was it mr. randolph's fault that the gentleman from south carolina had never, in the course of his extensive experience, heard of a proposition to arm the whole body of the militia? which had been damned with a faint appropriation of two hundred thousand dollars, when millions were lavished upon miserable _oyster_ boats. the clerk of the senate could not forbear a sneer when he read the title of the bill, at the recollection of the means to enforce it. mr. r. had proposed himself an annual million until the work should be accomplished. he would forever stand up for the militia. it was not in the scoffs of the epaulette gentry, who, for any service they have seen, are the _rawest militia_, to degrade them in his eyes. who were they? ourselves--the country. arm them and you are safe, beyond the possibility of danger. yearly did the standing army sweep off the money, while the militia received empty praise. he would rather see the thing reversed. but there will forever be a court and country party. the standing army is the devoted creature of the court. it must forever be so. can we wonder that it should be cherished by its master? he spoke of a mercenary soldier in terms of the strongest abhorrence. he would ever uphold the militia; and he detested standing armies, as the profligate instruments of despotism, as the bloodhounds of hell. they would support any and every existing government. in all history he remembered only one instance of their deserting their government and taking part with the people; and that was when the duke of orleans had bribed the army of the last of the bourbon kings. a mercenary soldier was disgusting to our senses; was odious and detestable to the eye of reason, republicanism and religion. yet, that "mere machine of murder," rude as it is, was the manufacturer of all the cæsars, and cromwells, and bonapartes, of the earth; consecrated by a people's curse, not loud but deep, to the infernal gods. as from the filth of the kennel and common sewer, spread the pestilence that carried havoc through a great city, so from this squalid, outcast, homeless wretch sprung the scourge of military despotism. and yet we are told that there was no danger from an army of , or , men. with , cæsar had passed the rubicon. with , he fought the battle of pharsalia, which rendered him master of the world. to come to later times--what number had bonaparte, when, deserting his companions in arms, he returned a solitary fugitive from egypt, to overturn that government, which if it had possessed one particle of energy, if it had been possible for the civil authority to cope with military power, would have cashiered him for having ruined one of the best-appointed fleets and armies that ever sailed from a european port? well might the father of political wisdom (lord chatham) say to the parliament of england, "entrench yourselves in parchment to the teeth, the sword will find a passage to the vitals of the constitution." as good a republican as ever sat on that floor, (andrew fletcher of saltoun,) had dissolved his political friendship with the earl of sunderland, when he found him supporting an army; and the event justified his sagacity. cromwell, the affected patron of liberty, always encouraged the army. we know the consequence. it was a fundamental principle of free government that a legislature which would preserve its liberty must avoid that canker, a standing army. are we to forget, as chimerical, our notions of this institution, which we imbibed from our very cradles, which are imprinted on our bills of rights and constitutions, which we avowed under the reign of john adams? are they to be scourged out of us by the birch of the unfledged political pedagogues of the day? if he were the enemy of this government, could he reconcile it to his principles, he would follow the example set him in another quarter, and say to the majority, _go_ to your inevitable destruction! he likened the people under this joint operation of the two parties, ministerial and federal, to the poor client between two lawyers, or the cloth between the tailor's shears. he was glad to hear from his venerable friend that this was not to be a party war. when the last additional force bill was raised, to which this was about to be superadded, it was an indispensable preliminary to an appointment, to sign, or to promise to sign, the thirty-nine articles of the creed of the reigning political church. but now the political millennium was at hand--already had john adams and citizen genet laid down, like the lion and the lamb, in the same fold. and if they were not joined by their fellow-laborer in newgate, it was his keeper's fault, not that of his inclination. citizen _genet_, now an american patriot of the first order, who extols "_our_ washington;" the champion of the laws of nations; the vindicator of american rights against foreign (and, of course, french) aggression! he was glad to hear that it was not to be a war for the protection of manufactures. to domestic manufactures, in the true sense of the term, he had always been, and ever should be, a friend; he had taken a pride in clothing himself in them until it was attempted to be made a political test. he abhorred tests of all sorts, political and religious, and never would submit to them. he was sick of this cant of patriotism, which extended to a man's victuals, drink, and clothes. he had, from a sort of obstinacy that belonged to him, laid aside the _external_ use of these manufactures; but he was their firm friend, and of the manufacturers also. they were no new things to him; no merino hobby of the day; he had known them from his infancy. he had been almost tempted to believe, from the similarity of character and avocations, that hector had a virginian wife; that lucretia herself--for she had displayed the spirit of a virginian matron--was a virginian lady. where were they found? spinning among their handmaids! what was the occupation of a virginian wife--her highest ambition? to attend to her domestic and household cares; to dispense medicine and food to the sick; to minister to the comfort of her family, her servants, and her poor neighbors, where she had any. at the sight of such a woman his heart bowed down, and did her reverence. compare with such a being your gad-about card-players. mr. randolph said that if the empress queen had presented herself decked in the spoils of a ravaged world, at the late exhibition, in contrast with our american matrons, bearing the triumphs of their own ingenuity and industry, we should have looked upon her, and all her splendor, with scorn and contempt in our hearts, although, from politeness to the sex, as gentlemen, we should have suppressed the sentiment. he could not conclude without noticing the parallel attempted to be drawn by the gentleman from south carolina, mr, calhoun--not quite indeed after the manner of plutarch--between himself and an illustrious statesman, (lord chatham.) the gentleman had been pleased to say, that at the mention of his name, mr. randolph's heart had seemed to smite him. it had indeed smitten him: from a sensation which he trusted that gentleman might never feel: against which he seemed well secured. it was a consciousness of his own unworthiness to sustain the high duties imposed upon him by his country, which the recollection of that great man's name had, at the moment, called up. he felt humbled in the contemplation of his worth. would to god! he possessed some portion of his powers; that he could borrow his eagle-eye, his withering look, the unrivalled majesty of his manner, the magic of his voice, at once the music and the thunder of the spheres, to rouse the house to a sense of their country's danger. in one respect, however, he might boast that he possessed some qualities in common with that immortal statesman. he might assert as lofty a spirit, as unyielding an adherence to the deliberate convictions of his own understanding, as lord chatham himself; who, because he set his face against corruption, and had the art of making every coward scoundrel in the nation his foe--concentrating upon himself the "rays of royal indignation, which might illumine but could not consume him;" who, because with intuitive glance he penetrated, resolved and combined every interest of his country, and each design of her enemies, and reached his object "by the flashes of his mind, which, like those of his eye, might be felt but could not be followed," was by the plodding, purblind, groping politicians of the day, attempted to be held up as an empty declaimer, a theatrical gesticulator. gentlemen must not expect him to quit the anchorage of his own judgment in order to pursue the _ignes fatui_ that wander about goose creek.[ ] mr. speaker, my heart is full--the recollection of that matchless orator and statesman has filled me with unspeakable feelings. to excite them there was no need of the cruel and insulting comparison which the gentleman from south carolina (mr. calhoun) had attempted to draw between that gigantic statesman and the pigmy who now addresses you. the question was now taken on concurring with the committee of the whole in their agreement to the second resolution, which is in the following words: "that an additional force of ---- thousand regular troops ought to be immediately raised, to serve for three years; and that a bounty in lands ought to be given to encourage enlistment." and carried as follows: yeas.--willis alston, jr., william anderson, stevenson archer, daniel avery, ezekiel bacon, john baker, david bard, josiah bartlett, burwell bassett, william w. bibb, william blackledge, harmanus bleecker, thomas blount, adam boyd, james breckenridge, robert brown, william a. burwell, william butler, john c. calhoun, langdon cheves, james cochran, john clopton, thomas b. cooke, lewis condit, william crawford, roger davis, john dawson, joseph desha, samuel dinsmoor, elias earle, james emott, william findlay, james fisk, asa fitch, meshack franklin, thomas gholson, thomas r. gold, charles goldsborough, peterson goodwyn, isaiah l. green, felix grundy, bolling hall, obed hall, john a. harper, aylett hawes, jacob hufty, john m. hyneman, richard m. johnson, joseph kent, philip b. key, william r. king, abner lacock, joseph lefever, peter little, robert le roy livingston, william lowndes, aaron lyle, nathaniel macon, george c. maxwell, thomas moore, archibald mcbryde, william mccoy, samuel mckee, alexander mckim, arunah metcalf, james milnor, samuel l. mitchill, james morgan, jeremiah morrow, hugh nelson, anthony new, thomas newbold, thomas newton, stephen ormsby, william paulding, jr., israel pickens, william piper, benjamin pond, peter b. porter, josiah quincy, william reed, henry m. ridgely, samuel ringgold, john rhea, john roane, jonathan roberts, william rodman, ebenezer sage, thomas sammons, ebenezer seaver, john sevier, adam seybert, samuel shaw, john smilie, george smith, john smith, silas stow, william strong, george sullivan, peter tallman, uri tracy, george m. troup, charles turner, jr., pierre van cortlandt, jr., robert whitehall, david r. williams, william widgery, thomas wilson, robert wright, and richard wynn-- . nays.--abijah bigelow, elijah brigham, epaphroditus champion, martin chittenden, john davenport, jr., william ely, edwin gray, richard jackson, jr., lyman law, joseph lewis, jr., jonathan o. mosely, joseph pearson, timothy pitkin, jr., elisha r. potter, john randolph, daniel sheffey, richard stanford, lewis b. sturges, samuel taggart, benjamin tallmadge, laban wheaton, and leonard white-- . the question was then taken on the third resolution, in the following words: "that it is expedient to authorize the president, under proper regulations, to accept the service of any number of volunteers, not exceeding fifty thousand; to be organized, trained, and held in readiness to act on such service as the exigencies of the government may require." and carried: yeas --nays . the question was next taken on the fourth resolution, in the following words: "that the president be authorized to order out from time to time such detachments of the militia, as in his opinion the public service may require." and carried: yeas --nays . the question was then taken on the fifth resolution, in the words following: "that all the vessels not now in service belonging to the navy, and worthy of repair, be immediately fitted up and put in commission." and carried: yeas --nays . the question was put from the chair on the sixth resolution, in these words: " . that it is expedient to permit our merchant vessels, owned exclusively by resident citizens, and commanded and navigated solely by citizens, to arm under proper regulations, to be prescribed by law, in self-defence, against all unlawful proceedings towards them on the high seas." when the resolution was, on motion, ordered to lie on the table. the three first resolutions, for filling up the present establishment, for raising an additional number of regulars, and authorizing the acceptance of volunteers' services, were referred to the committee who reported them, with instructions to bring in bills in pursuance thereof. tuesday, december . _mississippi territory--ordinance of ._ mr. poindexter, from the committee to whom the said report was committed, reported the same with an amendment; which was read, and referred to the committee of the whole on monday next. the report is as follows: the committee, to whom was referred the memorial of the legislative council and house of representatives of the mississippi territory, and the petition of sundry citizens thereof, praying to be admitted into the union of the united states on an equal footing with the original states; and also the petition of the inhabitants of west florida, setting forth their desire to be annexed to said territory, for reasons therein contained, have had these subjects under consideration, and beg leave to submit the following report: that there has existed in the mississippi territory a temporary government, founded on the ordinance for the government of the territory northwest of the river ohio, since the eleventh day of april, one thousand seven hundred and ninety-eight. that, although this ordinance has undergone some modifications, extending, in a limited degree, the rights and privileges of the citizens, it still contains provisions incompatible with political liberty, and unfavorable to a due and impartial administration of justice, in the redress of private wrongs and injuries. the chief executive magistrate is charged with the execution of the laws; is commander-in-chief of the militia; has the sole power of appointment to offices, civil and military, within the territory, and the removal of these officers at pleasure; is vested with an unqualified veto on all bills passed by the other co-ordinate branches of the legislature; and is, moreover, clothed with the odious and arbitrary authority to prorogue and dissolve the general assembly whenever, in his opinion, it shall be expedient. these high and regal prerogatives, constituting some of the most obvious characteristics which distinguish an absolute monarchy from the constitution of a free state, are confided to the discretionary exercise of a governor, who is neither chosen by, nor responsible to, the people. he is often a total stranger to the local interests and circumstances of the country over which he possesses such unlimited control, and is accountable only for malconduct or corruption in office to the president of the united states. the only security which exists against the frequent and wanton abuse of these powers is to be found in the mild and conciliatory disposition uniformly manifested by the general government towards its territories. but experience has shown that, in all colonial governments, officers situated at a remote distance from the tribunal to which they are responsible, too frequently "feel power and forget right;" and, by eluding the vigilance of rigid investigation, are enabled to practise acts of oppression with impunity. the above summary of executive powers, so opposite in their nature to those principles which form the basis of the federal constitution, and which are transfused through the constitution of the several states, is sufficient to show that the people are deprived of all participation in the choice of those who administer the laws, and that public functionaries are rendered independent of the community whose interests are confided to their management and discretion. these restrictions on the rights of the people can be justified only by the most evident necessity, resulting from peculiar and unavoidable circumstances. your committee, therefore, consider it an act both of strict justice and sound policy to advance the respective territories of the united states to the grade of a separate commonwealth, whenever they shall contain the number of inhabitants necessary to entitle them, under the ratio established by law, to a representative in the congress of the united states. on the subject of population, there exists no difficulty, whether the territory be taken in connection with west florida or with its present limits. from the official returns of the census, taken during the summer of the past year, it appears that there were, in the mississippi territory, the number of forty thousand three hundred and fifty-two souls. this enumeration, it is alleged, fell considerably short of the actual population of the territory at that time; and, without casting the most remote censure on the officers who were employed in that service, such a suggestion is strongly supported by the vast extent of country over which the settlements are dispersed. it also appears to your committee that the progressive emigration from the old states to this section of the union, added to the length of time which it will require to form a constitution, and put the same in operation, afford satisfactory pledges that, anterior to the final admission of the territory to the rights of state sovereignty, the number of its inhabitants will amount to at least sixty thousand, whereby they will possess the unqualified right, in conformity with articles of cession and agreement between the united states and georgia, to be admitted into the union on an equal footing with the original states. your committee cannot forbear to express their decided opinion, that, where no constitutional difficulty occurs, the formation of new states on the southern extremity of the united states ought not to be delayed. under these impressions, your committee submit the following resolution: _resolved_, that it is expedient to admit all that tract of country, bounded north by a line drawn due east from the river yazoo, where it unites with the mississippi, to the river chatahouchy, and down said river to the thirty-first degree of latitude; thence, along said degree of latitude, to a point opposite the river perdido; thence to the confluence of said last mentioned river, with the gulf of mexico; and thence, in a direct line through the middle of the lakes maurepas and pontchartrain, to the junction of the iberville with the river mississippi, and up said river to the above-mentioned river yazoo, into the union of the united states, on an equal footing with the original states. wednesday, december . mr. rhea presented petitions from louisiana territory, in favor of the second grade of government.--referred. _battle on the wabash._ mr. ormsby moved the following resolution: _resolved_, that a committee be appointed to inquire whether any, and if any, what provision ought to be made by law for paying the officers and soldiers of the militia who served under governor harrison, in the late expedition against the indians on the wabash, to compensate them for the loss of horses, and for the relief of the widows and orphans of those who fell in the action of the seventh november last; and that they have leave to report by bill or otherwise. the said resolution was read, and ordered to lie on the table. mr. mckee moved the following resolution: _resolved_, that the president of the united states be requested to cause to be laid before this house such information as may be in the possession of the government, and proper to be communicated, on the following points: . any evidence tending to show whether any and what agency the subjects, either public or private, of any foreign power, may have had in exciting the indians on the western frontier to hostility against the united states; . the evidence of hostility towards the united states, on the part of the shawanee prophet and his adherents, anterior to the commencement of the late campaign against them, under the command of governor harrison; . the orders and authority vested in governor harrison by the united states, under which the late expedition against the indians was carried on; and such other information relating to the subject, as, in the opinion of the president, may be proper to be communicated to this house. the resolution was read, and ordered to lie on the table. thursday, december . _battle of tippecanoe._ a message was received from the president of the united states, transmitting two letters received from governor harrison, of the indiana territory, reporting the particulars of the issue of the expedition under his command on the wabash. the message and letters were read, and referred to mr. mckee, mr. sevier, mr. breckenridge, mr. morrow, mr. alston, mr. lefevre, and mr. maxwell, to consider and report thereon to the house. _foreign relations._ the house resumed the consideration of the sixth resolution, reported by the committee of foreign relations, in the following words: " . that it is expedient to permit our merchant vessels, owned exclusively by resident citizens, to arm, under proper regulations, to be prescribed by law, in self-defence, against all unlawful proceedings towards them on the high seas." mr. archer.--the sixth resolution of the committee of foreign relations being now on its passage, i must express my sorrow that i am compelled to obtrude my humble observations upon the fatigued patience of the house, and the more exhausted patience of the nation. as i shall vote against the resolution, i feel it to be my indispensable duty to detail to the house the reasons by which my vote shall be actuated. many honorable members may, perhaps, conceive that it would be more proper for me to reserve my remarks for the bill, when it shall be reported; but, sir, i have ever held it to be my sacred duty to oppose, even in its incipient state, every measure which may be hostile to the rights, or dangerous to the interests of my country, lest, by not seeming to oppose, my conduct should be construed into an encouragement of such a measure. for what purpose, sir, let me ask, have we adopted the resolution preceding this? was it for the purpose of destroying the government? was it that the members of that army should sheath their swords in the bowels of the liberties of their country? who will impute to this body so disgraceful a motive? are you about to raise a standing army, not for the purpose of making preparations for war, but with a view of intimidating great britain to recede from her unjust infractions of our neutral rights? do not think that she will be intimidated by any preparations which you can make, however formidable they may be. she knows, too well, your conduct heretofore, to believe you are in earnest. she knows that, many years ago, you resolved to resist, but that this honorable determination terminated in an empty resolution. she knows, too well, that you have been, heretofore, prodigal in words, and parsimonious in spirited action. i do not set myself up for a prophet; but, mark me, if it be not true, that great britain will not do you justice till you carry the war out of this hall into the heart of her colonial territories. under the firmest conviction, then, as i am, that war between the united states and great britain--if we have any respect for our honor as a nation--will be an event of inevitable consequence, i have in vain searched for the reasons which would induce us to authorize our merchant vessels to arm against all unlawful molestations on the high seas. as the resolution is, in its nature, general, every man must see, on the contrary, the dangers necessarily attendant upon the adoption of such a measure. you are now on the very verge of war, and you should, therefore, be careful not to multiply your enemies. you may, by passing this resolution, make france your enemy. you may enlist denmark and other powers of europe against you. this is an event which would be deeply deprecated; and, that it should happen, is nothing improbable; for your merchants, armed as they will be, in defence of their commerce, may select the nation who is to be your enemy. if they are molested in their commerce, whether lawful or unlawful, they will be disposed to resist. at any rate, they will be the judges of the juncture when their interests may call for the interposition of force, and will exercise that force according to their own whims and caprices. they sail on the ocean clothed with national authority, and for their actions, whether lawful or unlawful, you will be compelled to answer. sir, i respect the highly honorable occupation of a merchant, but am not disposed to carry that respect so far as to give my sanction to the adoption of a measure which may jeopardize the peace, and endanger the interests of my country. if this resolution were to authorize an arming against great britain alone, this argument would have no effect; but as it has a view to a general arming against all nations, this reasoning is conclusive on my mind, and must operate in the same way upon all men who will give the subject a dispassionate consideration. the consequences of such a measure are plain and obvious. now, let us examine whether there exists any reason sufficiently powerful to outweigh these considerations. what is the object, and the only one too, as stated by the honorable chairman of the committee of foreign relations, (mr. porter,) for the adoption of this measure? your vessels will be armed and prepared for privateering the moment war shall be declared. why, sir, do you think the merchants will believe that you really intend to go to war? and, if they doubt upon this subject, do you suppose they will be so regardless of their own interests as to expend their capital in fitting out privateers, when no absolute certainty exists that war is your object, or your serious intention? it would, certainly, be an object of no inconsiderable moment to have privateers prepared to harass and disturb the commerce of great britain in the event of war. if this be your object, you are taking a very improper course to obtain it. if such be your object, take some decided and energetic step which will convince even the incredulous that you will resort to the sword to obtain justice, and your end will soon be effected. but, do not depress the hopes of the nation by sanctioning this tame, imbecile, and temporizing system. what is the spirit that breathes in the five resolutions which have been adopted--resolutions which were in entire accordance with my feelings? is it not a spirit of war? do they not bear a hostile aspect? are they not calculated to induce great britain to believe that forbearance on our part has terminated, and that we are resolved, unless she speedily extend to us full and ample justice, to decide the contest by the sword? have you any thing to hope, by operating upon the minds of the rulers of that nation, a conviction that you are boasting no longer? if you do entertain such a hope, i pray you, do not adopt this measure--a measure which will show her the fluctuation of our opinions, and the repugnancy of our plans; a measure which will lull to sleep her fears of war, and convince her not only of your indecision, but of your timidity to unsheath your sword in defence of rights clear and undisputed, and in avenging injuries too glaring for the dignity and honor of a nation to submit to. are the wishes of this nation to be unattended to? ought we not to relieve its anxieties? or, are we to tantalize their hopes with energy in one law and imbecility in another? are the merchants to be told we will protect their commerce? by what? by granting them a right which nature has already given to them? is commerce to be protected by abridging the natural rights of the people? is this measure no abridgment of their rights? does it not confine the legality of arming to resident citizens alone? look at the measure as you please, it is a dead letter. is this the period of all others to be selected to incorporate unmeaning laws in the body of your statute book? do not satirize, by such an act, the manly sensibility of the people. do not paralyze the national arm. no; let us do justice to the nation by the adoption of such measures as will renovate the depressed spirits of our constituents; which will prevent them from falling into that destructive and deadly languor which this resolution is calculated to produce. the question was then taken to concur with the committee of the whole house on the state of the union in their agreement to the said sixth resolution, as reported by the committee on foreign relations; and resolved in the affirmative--yeas , nays . saturday, december . _statutes of limitation._ mr. gholson, from the committee of claims, who were instructed by a resolution of the house of the th ultimo, to inquire into the expediency of repealing or suspending the various acts of limitation, so far as they operate to bar the payment of certain descriptions of claims, made a report thereon.--referred to the committee of the whole on the report of the committee of claims on the petition of rees nanna and others. the report is as follows: that they have bestowed on the resolution that full consideration to which it was entitled. they felt, on the one hand, sincere solicitude to devise some just and adequate method of satisfying the claims in question; while, on the other, they were forcibly struck with the unavoidable scenes of speculation and fraud which would ensue the repeal or suspension of any of the acts of limitation, whereby those claims are barred. if the old soldier, his widow, or his orphan, were alone to be benefited by such suspension, your committee would not hesitate to recommend it. past experience, however, hath evidently shown that similar legislative indulgences have enured almost exclusively to the advantage of the unprincipled speculator, and those who avail themselves of the ignorance and subsist upon the misfortunes of others. we have innumerable examples of the truth of this position, in the consequences that resulted not only from the various suspensions of these acts which have hitherto taken place, but more especially from the adoption of the funding system. it is deemed unnecessary to enlarge upon the consequences; they are too well known. although a communication received from the treasury at a former session holds out an opinion that there are in the possession of that department sufficient checks and guards to protect the united states from imposition and fraud in the payment of a certain part of those claims, the committee are differently impressed. they have seen a transcript from the books of the treasury, published to the world, exhibiting the names of a certain class of claimants; and to suppose that a facility of this kind, thus offered to speculative artifice and management, would not be seized upon and used by the speculator to impose upon government, is to suppose a thing contrary to all experience. the committee feel themselves by no means able to draw a line of distinction between a just claim liquidated and a just one unliquidated; and to attempt the invidious task of distinction in point of merit, where there can be no difference, and to open the statutes of limitation in order to relieve a part or a few favorite classes of claims, does not comport, in the view of your committee, with any principle of fairness, or with that equal system of distributive justice which ought to be dispensed toward all. when they take a retrospective view of the subject, and find that most of those statutes were first passed in the times and under the patriot counsels of the old congress, and that the more general one which took effect in was passed under the administration of general washington, who was himself the chief of soldiers as he was the chief of their patrons and friends in every station; but he was equally the friend of his country, and gave that act the sanction of his name, as founded, at least, in a policy of general justice and right, which the government had been at length obliged to resort to and maintain in self-defence; that every congress since has invariably adhered to the general policy of those laws; and, after the lapse of so many years, when the difficulty of doing justice has increased with the increase of time, and when a partial repeal would but tend to increase the discontent and dissatisfaction of every class of claimants which should remain unprovided for, the committee cannot, from any view they have been able to take of the subject, recommend the repeal or suspension of any of those statutes. they would, therefore, beg leave to submit the following resolution: _resolved_, that it is not expedient to repeal or suspend any of the acts of limitation, whereby the aforesaid descriptions of claims are barred.[ ] the report was ordered to lie on the table. monday, december . _rules and orders--previous question._ the house resumed the consideration of the unfinished business of saturday. the amendment proposed by mr. nelson being again read, as follows: "that when the previous question is ordered to be taken, upon the main question being put, every member, who has not already spoken, shall have liberty to speak once:" mr. gold said the amendment now offered to the rules of the house, secures to every member the right of speaking at least once on every question before the house. the liberty of speech, and freedom of debate, are sacred by the constitution; and to refuse _all_ debate, to deny us the privilege of speaking _at all_, on the most important questions of peace and war, is a subversion of the first principles of the constitution. and what is to justify this measure of imposing silence? it is said, the right of debate has been abused. let gentlemen beware how, for an occasional _abuse of a right_, they _take away--destroy the right itself_. what right, in the whole charter of our rights, has not at some time been abused? man is frail, and why should not, at times of public agitation and concussion of parties, abuses arise? debate become angry and be prolonged? and for this, is the principle to be adopted, that the right shall be forever suppressed and destroyed?--the principle that absolute silence shall be imposed on a minority? sir, philip, the tyrant of macedon, disliked the freedom of speech and debate in athens: it annoyed him; for this cause, demosthenes was pursued to the altar, where he expired. the principle contended for by the majority (supposed abuse) will be found to justify the most odious usurpations recorded in history; liberty is abused, and chains are forged to restrain it. gentlemen of the majority insist, that the rule will not be abused; that the majority will not execute the rule arbitrarily. the amendment, now offered to the rules, stipulates only for liberty to each member to speak once. now, sir, if this be denied, and the rule is ever executed, the abuse is inevitable, it is necessarily involved in the very execution of the rule. neither the journals of our state legislatures nor the laws of the parliament of great britain afford examples for thus arbitrarily proceeding. debate is admitted in the british parliament on the previous question; our rules exclude it on both the previous and main question. beside, sir, i need only refer gentlemen to the manual of parliamentary law, from the hand of the third president of the united states, to show that the previous question was confined to subjects of delicacy, which a due regard to the interests of the state or its government forbade to be agitated. how much, sir, has this question been perverted from its proper province, to silence all debate and force the question, the passage of the law! such measures are dangerous to freedom, and afford, in evil times, the most fatal examples. mr. smilie said he was a friend to freedom of debate, but that there was a difference between this, and that abuse of it when you cannot get a decision without an exertion of physical strength. this has been our case several times. the rule now proposed to be altered is the old rule, and is only restored. we very well know, that a debate has been often prolonged merely to prevent a decision. we have been kept till ten and twelve o'clock at night, and sometimes till daylight. it is an inconvenience which he at his time of life had seriously felt. there can be no evil from the rule as now established. the responsibility of the majority is such to the people, that, if they should abuse it, as the minority have their privilege, the people will correct it, when the minority shall fairly state it to them. he said the majority were also responsible to the people to transact the public business. mr. stanford, in reply to mr. smilie, said he did not think it proper to give this dispensing power to the majority, if they by the constitution did not possess it, as he contended they did not. he said we have heard of a _sedition law_, and _the reign of terror_. the bill, when first introduced for that law, went to prevent freedom of speech. this rule, in his opinion, much more deserved the character of a "_gag-law_," than the sedition law did. mr. wright mentioned the great abuses of this privilege of the minority the last winter. he said, if we don't establish a written, decent rule, we must have a common law rule, such as they have in the british house of commons, to shuffle and put down, when the abuse of this privilege becomes enormous. mr. quincy.--mr. speaker, i do not regard this question in the light in which some of its advocates, as well as its opponents, have considered it; as a mere contest for power between the majority and the minority. it is of a higher character. it affects the essential principles of civil liberty, and saps its hopes at its very foundation. i rejoice that the gentleman from virginia (mr. nelson) has limited his proposition, so as to preclude any mistake concerning the object of it. we are not now advocating an unrestrained privilege of debate. the inquiry is, shall a main question ever be taken in this deliberative body, until every member, who has not already spoken, shall have had an opportunity, if he wishes to avail himself of it, to speak at least _once upon the question_? the ground taken by those who oppose the proposition, is that of necessity and convenience. these are the very points, which, in a free country, ought most vigilantly to be guarded. for it is here that the spirit of despotism always lies in ambush. under the cover of necessity, or convenience, it steals upon the liberties of a people, and never fails, sooner or later, to make them its prey. it is not to be denied, that the subject is in some respects difficult to manage, with any hope of convincing. there is a state of feeling, both within this house and out of it, very unpropitious to an impartial debate. in this house it is argued as a question concerning who shall have the power, a majority, or a minority. and as it is agreed, on all hands, that, in the exercise of the power, abuse may happen, the present majority, like all other majorities, have a prevailing inclination to reserve, in their own hands, the exclusive privilege of abuse. and without doors, the subject is of less difficulty. for, of late years, the popular ear has been so vexed with speech upon speech, wind upon wind, the public patience has been so exhausted, in hunting up the solitary grain of sense, hidden in the bushels of chaff, that it is ready to submit to any limitation of a privilege, which subjects it to so irksome a labor. the people are almost ready to exclaim, "do what you will with the liberty of speech, provided you will save us from that _fresh_ of words, with which we are periodically inundated." now, this is the very state of the public mind in which the corruption of essential principles commences. through apparent necessity, or temporary convenience, or disgust at abuse, the popular sentiment is made to acquiesce in the introduction of doctrines vitally inconsistent with the perpetuity of liberty. i ask the house to consider what is that principle of civil liberty, which is amalgamated and identified with the very existence of a legislative body. in what does it consist? and what is its character? it consists in the right of deliberation. and its character is, that it belongs not to the body, but the individual members constituting the body. the body has the power to control and to regulate its exercise. but it has not the power to take away that right altogether, by the operation of any general principle. an individual member may render himself unworthy of the privilege. he may be set down; he may be denied the right, because he has abused it. but whenever a legislative body assumes to itself the power of stopping, at its will, all debate, at any stage of deliberation, it assumes a power wholly inconsistent with the essential right of deliberation, and totally destructive of that principle of civil liberty which exists, and is identified with the exercise of that right. the right of every individual member is, in fact, the right of his constituents. he is but their representative. it is in their majesty, that he appears. it is their right that he reflects. the right of being heard by their representative is the _inherent_ and _absolute_ right of the people. now, it is in the essential character of such a right, that it exists, independent, and in despite of any man, or body of men, whatsoever. it is absurd to say, that any right is independent, which depends upon the will of another. it is absurd to say, that any right is absolute, which is wholly relative to the inclination of another; which lasts only as long as he chooses, and terminates at his nod. now, whether this power be exercised by one, or many, it matters not. the principle of civil liberty is gone, when the inherent and absolute nature of the right is gone. apply this reasoning to the case before us. it is impossible to conceal the fact, that as our rules and orders stand, independent of the proposition now offered as an amendment, it is in the power of a majority to preclude all debate, upon any question, and force every member of the house to vote, upon any proposition, without giving him the opportunity of explaining his own reasons, or stating the interests of his constituents. this is undeniable. is it not, then, plain and conclusive, that, as our rules and orders now stand, according to recent construction, every member of this house holds his right of speaking, not on the principle of his constituents, whose representative he is, but upon the will of the majority of this house? for that which another may at any time take away from me, i hold not by my own right, but at his will. can any thing be more obviously at variance with the spirit of the constitution and the first principles of civil liberty? let not any man say this power will not be abused. in the nature of things it must be abused. this is the favorite argument of every despotism, and, of course, will not fail to be urged when it is about to plant itself in the very temple of liberty. i have chosen to consider this subject in relation to the right of the whole body, and of one of its individual members, rather than to that of a majority and minority. the right to speak is an individual right. limit it as you please, consistent with a single exercise of that right. but when this is taken away, or, which is precisely the same thing so far as it respects the principle of civil liberty, when it is in the power of one or many, at its sovereign will and pleasure, to take it away, there is no longer any right. we have our tenure of speech as the slave has his--at the will of a master. but it is said that the legislature must sometimes "act," and that individuals, by an abuse of this liberty of speech, prevent the whole body from "acting." all i say is, limit the exercise of the right as you please, only do not assume to yourselves the power of taking away the whole right, at your pleasure. it is in this doctrine, of "the necessity of acting," that lies the whole mystery of that error which we are now combating. strictly speaking, a legislative body never "acts." its province is to deliberate and decide. "action" is, alone, correctly attributable to the executive. and it will be found, that all the cases in which this necessity of "action" has been urged, have been cases in which the legislative body has departed from its appropriate duties of deliberation and decision, and descended to be an instrument, or engine, of the executive. i hesitate not to say, that this position may be proved by almost every instance in which this necessity of action has been urged. it was an executive haste to its own purposes, which prevailed upon the legislative body to deny, to its own members, their privileges. it has been asserted, that "if this amendment passes, this will be the only deliberative body in the world which cannot stop debate." on the other hand i assert, that if this amendment does not pass, this will be the only deliberative body in the world, pretending to be free, in which it is in the power of a majority to force a decision, without any deliberation. it is not true that, in the british parliament, the previous question stops debate and forces decision on the main question without deliberation. the previous question there, if decided in the negative, suppresses debate, by postponing the main question. and until , the practice and rules of this house permitted debate of the main question, after an affirmative decision of a previous question. whoever undertakes to examine the subject will find it as i have stated. it is not true, that this power ever was, or ever can be _necessary_, in a legislative body. in every case in which the previous question, according to recent construction, has been pressed upon the house, it will be found that there was no _national or state necessity_ for an immediate decision. that is to say, in every instance it will be found, that it was of no sort of public importance whether the main question were taken on this day, on the next, or on a third day. always the question might have been taken in a reasonable time; and every individual member, who chose to speak, might have had the privilege, if he pleased, of speaking, at least once. as far as i observed, all these pretences of necessity have been easily resolvable into party cunning. the subject was one difficult to maintain. it had popular bearings, which it suited not the pleasure of the majority to have investigated. they pressed the minority to instant decision, by refusing adjournment. and as it happens in all such cases, reaction is equal to action. the minority were put upon their mettle, and they put to trial the mettle of the majority. it is undoubtedly true, that this power may be sometimes convenient. and this is the whole strength of the argument of those who oppose this proposition. the weak and aged members of the majority have been kept all night from their slumbers, by a hale and sturdy minority; which slumbers they might, by the way, at any moment have enjoyed, if that very majority had yielded the point of adjournment. and is this reason of convenience sufficient, in the estimation of this house, to justify it, in depriving this people, in the person of their representatives, of the essential right of speaking upon this floor? is this a justification for such an atrocious and exorbitant grasp at power? our patriotism, nowadays, can submit to no sacrifices. we are not content with sleeping, if we please, every day in our seats, unless we can sleep also every night of the session in our feather beds. and these feather-bed patriots, as i understand, are all agog for a march into canada; and, if we believe them, are desirous of nothing so much as showing how those can meet privation and watchfulness in the field, who think of nothing but comfort and sleep upon this floor. i know there is another argument urged in favor of the assumption of this power by the majority, and that is, the haste and clatter which always attend the end of a session. let our session be long or short, the event is, in this respect, always nearly the same. what with speeches and postponements, and laying down one piece of business half finished, and taking up another, the latter end of a session is a political chaos. the work of this and the other house, and that of the palace into the bargain, is in fact sometimes to be washed up, in a night--and the members of all branches are knee-deep and shoulder-deep in the suds. now, this shows the necessity, not of this unlimited power of the previous question, but of conducting public business with more prospective intelligence. the house is just like all other spendthrifts. it first wastes what is its own, and then seeks how it may make up its deficiency out of the property of other people. we pillage the public liberty, in order to compensate for legislative negligence. i have often been puzzled to imagine a necessity, which could even apologize for such an assumption of power as the majority, by this new construction of the previous question, are attempting; and, until lately, i did not believe that it could possibly exist. the only case, in which there seemed to me to be an apology for resorting to it, was, the other day, when the gentleman from georgia (mr. troup) threatened to call the previous question upon the majority themselves. i admired both his manner and the occasion on which he introduced that idea. and really there was something like a necessity. if i understood the view of that honorable gentleman, it was, that he thought there was not fighting matter to spare in the stomachs of the majority; and he threatened them with the previous question, lest, peradventure, the whole war spirit should ooze away through the mouth. in this there was both discretion and patriotism. mr. brigham said, that although he was forward in life, he was but of yesterday of this house, and that the rules and orders were not familiar with him. but he exceedingly regretted that this house, in their wisdom, ever found it expedient or proper to adopt a rule to deprive a minority, or an individual member of this house, of the freedom of debate, the freedom of speech, a privilege so much boasted of in this land of liberty. he observed that he had his rights in common with the other members of the house, and that he had his duties to perform. he was not ambitious to become a public speaker, nor would he say that he supposed he could speak to the edification or satisfaction of the house. but should he, on great questions, be denied the privilege of speaking? suppose the question of peace or war should assume the aspect of solemnity, and it should become necessary and important that this house be made acquainted with the circumstances and disposition of the citizens of the several sections of the country--and suppose a member who is not much accustomed to speaking, silently sits until those gentlemen who are in the habit, and are fond of speaking, shall have exhausted themselves in debate--shall he, in that case, be denied the right of speaking--shall he be deprived of his constitutional privileges and his constituents of the right of representation on the floor of this house? he said that he was bound by the oath of god to support the constitution, and to promote the welfare of his country; but, if his mouth is stopped, how can he execute his trust or perform his vows? for this house by a rule to interdict the freedom of speech, is an assumption of power, and a violation of right. he hoped, that the rule under consideration would be modified, and that the proposed amendment would be adopted. he wished that each individual member might be permitted to exercise his right of speaking to any question before the house, at least once, if he chooses. mr. nelson spoke in favor of the amendment. he said he had no hesitation in declaring, that whenever right and expediency shall come in competition, that he should prefer right. he remarked, that the constitution secured the freedom of speech to the citizen. and are we, he asked, to be deprived of it when we come to this house--when we enter this temple of liberty? the attempt is not to suspend merely, but to destroy this right, and because we have experienced some inconvenience from this exercise. he agreed with the gentleman from massachusetts, (mr. quincy,) that if the house would do their duty, and get the business along in the early part of the session, we should never be in the dilemma the house were in, the last session of congress; and that an inconvenience was a very poor reason for destroying this right of offering our sentiments. he would rather recommend the turning out of doors a member who should become troublesome in speaking too long, than to suffer him to stay in the house and prevent his uttering his sentiments. even expulsion would not be a greater infringement of his right. the right of the people is the right of their representatives to speak, deliberate, and decide. as to the plea of necessity, he protested against it as the plea of tyrants. mr. alston, of north carolina, expressed his astonishment, that the gentleman from virginia (mr. nelson) had assumed the ground he had. he said, there were two parties in this house; and asked, is it ever known how a question will be decided, until it is taken? mr. bassett said, if a stranger was present, and should hear this debate, he would suppose that the question was now for the first time brought forward for the establishment of the rule, against which so much had been said, when it is well known that it has always been the practice. mr. pitkin said, the amendment now under consideration was proposed in consequence of a decision of the house, at the close of the last session, that when the previous question was decided in the affirmative, there could be no debate on the main question; the amendment, if adopted, allows a member, who has not previously spoken, to speak at least once on the main question, before he is called upon to give his vote upon it. the principle adopted by the majority, during the last days of the last session, and now supported in the house, is this, that a majority, who may happen to be present, at any time, have it in their power, by means of a previous question, as it is called, to prevent all debate on every question before the house, however important it may be; to seal up the lips of every member, and compel him to vote upon the question without an opportunity of expressing his sentiments upon it, or explaining the reasons of his vote. this, mr. speaker, is a principle to which i never _have_, and to which i never _will_ give my assent. what, sir, let me ask, and where is the rule under which the majority claim to exercise this enormous power--the power of imposing silence upon any member, on this floor? the rule, under which this power is claimed, is in the following words: "the _previous question_ shall be in this form: shall the main question be now put?" it shall only be admitted when demanded by five members; and, until it is decided, shall preclude all amendment and further debate of the main question, and that "on a previous question there shall be no debate." by a new construction, which a majority of the house thought proper to give to this rule, at the close of the last session, all debate may be prohibited on any question; for five members alone can demand the previous question, and then, of course, all debate must cease, until a decision be had on that question, and if the previous question be decided in the affirmative, by this new construction of the rule, there can be no debate or amendment of the main question. thus, sir, unless the amendment now proposed be adopted, if a proposition for a declaration of war against great britain, or any other nation, should be laid upon your table to-morrow, it will be in the power of a majority of the house, and that majority may consist of less than forty members, to impose silence upon every member of this house; and we must be compelled to vote on a proposition so interesting to the prosperity, happiness, and perhaps the final destiny of this country, without the poor privilege (if we might choose so to do) of raising our voices against it. but, sir, the opponents of the amendment say, that the construction given to the rule the last session, was in conformity with the universal practice of the house, from the establishment of the government, except in two or three instances. i deny, sir, that this has been the practice, and i believe i may venture to assert, without fear of contradiction, that no such power has ever been exercised over the members of this house, since its organization, until the last session. i have, sir, examined the journals, with some attention, and have not been able to find a solitary instance of the kind. on the contrary, many cases are to be found when the previous question has been decided in the affirmative, and that, immediately after the main question has not only been _amended_ but has been _debated_. and here, sir, permit me to observe, that the rule itself, with respect to the previous question, was adopted the first session of the first congress, and has ever since remained precisely in the same form; and no construction was ever given to it, so as to prevent debate on the main question, until the last session. permit me to refer the house to the journal of the first session of the third congress, for the proof of what i have stated. during this session, the difficulties then subsisting between this country and great britain, became the subject of discussion, and a proposition for prohibiting all intercourse with great britain, in case justice was not done us, was then submitted to the house, and the previous question was called upon it, and decided in the affirmative, after which the subject was not only postponed, but, as appears by the journal, was both _amended_ and _debated_. it appears also from the journal in , that a proposition was amended after an affirmative decision of the previous question. in the year , when a resolution was before the house for publishing the instructions to, and the despatches from our ministers to the french republic, the previous question was moved and determined in the affirmative; and it appears by the journal that immediately after such decision, on the same day, debate was had on the main question. but, sir, to come to our own times: on the th of december, , a construction was given to the rule, after mature deliberation, by a large majority of the house, that the main question might be debated, after an affirmative decision of the previous question. this was done on an appeal from the decision of the speaker, "that after the previous question is called for and determined in the affirmative, it precludes all debate on the main question." the house reversed the decision of the chair by to . a similar decision took place on the d of december, , in the house-- to . and, sir, i have been unable to find a single decision of the house to the contrary, from the first organization of the government until the close of the last session. indeed, sir, the words of the rule itself, show that the construction, which had so long prevailed, was the only true construction which could be given to it. the words are, and until it (viz: the previous question) is decided, "shall preclude all amendment and further debate on the main question." by which it is evident, that amendment and debate of the main question is only _precluded_, until the previous question is decided, but that after such decision, it was not precluded. the gentleman from new york, (mr. gold,) and the gentleman from virginia, (mr. nelson,) have truly stated that the previous question was taken from the rules of the british parliament, and they have likewise stated the reason of its introduction into that body. it was, sir, to prevent debate in the house of commons upon questions of a _delicate nature_ with respect to high personages, &c. yes, sir, it was introduced there to enable the ministry to prevent the _commons_ from opening their lips on subjects relating to the royal family and the great men of the realm. but, sir, we have gone further than the ministry and their majorities, despotic and tyrannical as they have been, have ever dared to go in parliament. for even there members are now, and always have been, permitted to debate on the previous question; but which members on this floor are not now permitted to do. mr. speaker, the nature of our government forbids that the majority should have the power to prohibit all debate on questions which may come before this house. we have not, as yet, i trust, any high personages in this country about whom it would be indelicate or improper for the members on this floor to speak; and let me ask what subject of national importance can be proposed for adoption, on which a member should be deprived of the privilege of speaking at least once before he gives his vote? nay, sir, let me ask gentlemen whether this house has a right to compel me, or any other member, to vote on any question, without giving me an opportunity of explaining my reason for that vote. i deny, sir, that they have this right; as a member of this body, i claim the privilege of delivering my sentiments, or what i may consider the sentiments of my constituents, on any subject, before i give my vote upon it. i claim it not, sir, for myself personally, but i claim it in the capacity of a representative of a free people, sent here, not like a member of the french council of five hundred, for the purpose of voting merely, but for the purpose of deliberating on subjects of high concern to their peace, their prosperity, their happiness. for what, sir, are we assembled here under a constitution the purest in the world? is it not for the purpose of promoting "the general welfare" of the nation which we represent? and how is this to be done, except by a free communication of our sentiments to each other, on the various plans which may be proposed for that object? the peace, the honor, and interest of this country is confided to our care, and while we are here deliberating on the best means of preserving the one or securing and promoting the other, the constitution has very wisely thrown around us a shield of complete indemnity--"for any speech or debate in this house," we are "not to be questioned in any other place." will then the majority claim the right of depriving a member of this privilege of speech, a privilege not only thus secured to him by the constitution itself, but for the due exercise of which he is not to be questioned elsewhere? but, sir, those who oppose the amendment say that the construction is founded in necessity; that individual members have abused the privilege of speech; that they have heretofore, and probably will again, make long speeches merely for the purpose of delay, and of embarrassing the proceedings of the house; and that therefore the majority must have it in their power to stop debate, whenever they think proper, and that this power will always be exercised with a sound discretion. i deny, sir, that any such necessity exists; it is a plea easily made, but generally difficult and in this case impossible to be supported. why has it so happened that this necessity has never existed until the last session of congress? was it then for the first time, that a division of sentiment appeared on this floor? were parties never before heard of in this country? were not parties arrayed against each other in on the subject of the british treaty, and in -' , on the question of a war with france? were not the disputes in this house, in those times, as long and as bitter as they have ever been since? those were times, which have been so often quoted in this house as hard, and unconstitutional; times when the reign of terror prevailed, when corrupt majorities, as has been often said on this floor, passed alien and sedition laws. and, yet, sir, with all the political sins which have been heaped upon those majorities, the sin of having taken away the privilege of speech on this floor never has been, and as i have proved from the journals, never can be laid to their charge. this house, by the constitution, has the power to "determine the rules of its proceedings;" and in making those rules, it has the right of regulating, but not of entirely preventing debate. it would indeed be a strange anomaly in politics, as well as in law, that under a general power of making rules of proceeding, we should make a rule to prevent all proceedings whatever. gentlemen may as well assume the power of preventing a member from voting, as they now do that of preventing him from speaking. i am willing to agree, sir, that the privilege of debate, on this floor, may have been and will again be abused; that on particular subjects individual members have spoken much longer than was necessary, and i may add, also, with much less sense than a majority might have wished; and in some instances they may have prolonged their speeches, merely for the purposes of delay. but, sir, will you deprive a member of the right of speaking at all, because he is unable to convey his ideas in few words, or because he may have very few or no ideas to convey? or because some may have spoken merely to delay the proceedings of the house, will you make a general rule, by which a member may be wholly deprived of the right of speaking? if indeed, sir, evils do arise in consequence of the liberty of speech in this house, if the business of the nation does not progress with as much rapidity as in countries under the control of an individual; they are evils which flow from the very nature of our government, from that freedom which we so highly prize, and from that very constitution which we have sworn to support. so long as we are men we shall be imperfect, we shall bring with us on this floor different views, different ideas on political as well as on other subjects; and it would be strange indeed if, on the various topics of national importance brought before us for discussion, we should not at times come into strong collision with each other. the question on the amendment was determined in the negative--yeas , nays . mr. stanford moved to amend the rules by adding to the end of the paragraph relating to priority of business, the words "but no question of consideration shall be required upon an original motion;" which was also determined in the negative--yeas , nays . on motion of mr. williams the said rules were amended by striking out the word "five," in the paragraph prescribing the manner in which the previous question shall be taken, and inserting the words "one-fifth of the." the question was then taken to concur in the said rules as amended, and determined in the affirmative.[ ] friday, december . mr. nelson presented a petition of sundry inhabitants of the territory of louisiana, praying that the second grade of territorial government may be extended to the inhabitants of said territory. monday, december . _burning of the richmond theatre._ soon after the journal was read, mr. dawson rose and addressed the chair. the lowness of his voice, owing to recent indisposition prevented his being heard distinctly; but his observations were nearly as follows: mr. speaker--virginia, my parent state, has long to mourn the loss of some of her most valuable sons and estimable daughters, who on the night of the th of the present month, met their untimely end.[ ] among those who perished in the flames, in the metropolis of that state, on that sad night, were the chief magistrate of the state, and a gentleman[ ] well known to many of us, and who, for years, held an honorable station in this house. some of the most valuable and prominent characters in their professions, and others who promised ere long to be ornaments to their country. with these, sir, was the rising offspring[ ] of one of our present most valuable members, and many other amiable and virtuous women who adorned and improved society. these, sir, with many others, have fallen victims to that unrelenting element, notwithstanding the bold and generous efforts which were made to save them. their ashes are now mingled with the dust, and their spirits have ascended to heaven. it is to us a great national calamity. i well know, that on such occasions grief, although keen, is unavailing--that the decrees of fate are irrevocable and ought to be submitted to with humility. in order, however, to testify the respect and sorrow which this nation feels for the deceased, and to prove that we sympathize with the afflicted, without further comment on this painful subject, i beg leave to offer the following resolution: _resolved_, that the members of this house will wear crape on the left arm for one month, in testimony of the respect and sorrow which they feel for those unfortunate persons who perished in the fire in the city of richmond, in virginia, on the night of the th of the present month. this resolution was unanimously adopted. tuesday, january , . _statute of limitations._ on motion of mr. gholson, the house resolved itself into a committee, on a report of the committee of claims on the subject of excepting certain claims from the act of limitations. the report of the committee being read, which concluded with a resolve that it is inexpedient to open the act of limitations for the claims in question: mr. gholson hoped the committee would not agree to this report. information had been received from the treasury department, stating in a distinct and unequivocal manner, that all this description of claims (which were all liquidated claims, such as indents of interest, certificates, &c.,) might be allowed by the government, without danger of fraud or imposition; and, said mr. g., if justice can be extended to this description of claimants, without danger, why should it be deferred? only one solitary reason had been offered--that the persons really entitled to these claims upon government might not get the money. he hoped this would not be sufficient to prevent congress from doing what was just on the occasion. mr. clay (the speaker) hoped the committee would disagree to this resolution. it appears that the officers of the treasury are of opinion that provision may be made for this description of claims without that danger of fraud, which might possibly arise from a total repeal of the statute of limitations; that their whole amount does not exceed $ , , and the probability is, that one-fifth will never be applied for, should they be authorized to be paid. what, said mr. c, is this statute of limitations, which, whenever mentioned in this house, seems to make everybody tremble? it is a general rule prescribed by the government for the direction of its accounting officers in order to exclude unjust claims. what are statutes of limitation as applicable to individual cases? a rule under which individuals claim protection whenever they choose to do so, and when, from the lapse of time, or loss of evidence, they would be injured, were they not to take this advantage. but in these statutes of limitation there are always exceptions in favor of cases of disability, infancy, coverture, insanity, absence beyond sea, &c. but what is the course which an individual would take who found himself protected by a statute of limitation? he would examine the justice of the claim brought against him; if the claim were just, if he had been deprived of no evidence by the delay, if as able to pay it as if it had been presented at an earlier day, he will not hesitate to discharge the claim, and scorn to take advantage of the statute. and, said mr. o., shall the government be less willing to discharge its just debts than an honest individual? shall we turn a deaf ear to the claims of individuals upon government because of this statute? he trusted not. the committee of claims ought to examine the merit of every claim which comes before it, and if it be just, decide in its favor. but what, said mr. c, has been the history of claims for four or five years past? when a solitary claim was presented the house would say, we cannot legislate upon individual cases. they occupy too much of our time. the claim is put aside. the same individual some time after, appears in company with others. we then say there are too many of these claims--their amount is too large, and the treasury too poor--that there are a great many other claims equally well founded--that justice cannot be done to them all. sometimes there is a division between the two houses. this house passes a bill in favor of some particular claim--the other tells you they will not legislate for particular cases; that if they act, they wish to take up the subject generally. mr. c. said it was his wish, both in his public and private character, as far as possible, to do justice; he therefore hoped the course proposed by the chairman of the committee of claims would be agreed to. the resolution recommended by the report was negatived, to : and a resolution offered by mr. gold, recommending a provision by law for these claims, after some objections from mr. alston, was agreed to, to . wednesday, january . _battle of tippecanoe._ mr. mckee, from the committee on indian affairs, to whom was referred the message of the president, transmitting two letters from governor harrison, reporting the particulars and issue of the expedition under his command against the hostile indians on the wabash river, and the memorials of the legislature of the indiana territory, and the officers and soldiers who served in the said expedition, presented the twenty-fourth ultimo, made a report thereon; which was read and committed to a committee of the whole to-morrow. the report is as follows: the committee to whom was referred the message of the president of the united states, transmitting two letters from governor harrison, of the indiana territory, reporting the particulars and the issue of the expedition under his command against the hostile indians on the wabash, and to whom was also referred the memorial of the general assembly of the indiana territory, and the memorial of the officers and soldiers of the militia of knox county, in the indiana territory, who served in the late campaign under the command of governor harrison, report: that they have had the several matters to them referred under their consideration, and have given to them that attention which their importance seems to merit. it appears to the committee, that the troops under the command of governor harrison may very properly be termed _raw troops_: very few of the officers, and almost none of the men, had ever been in actual service; and a considerable portion of them had been only a few weeks withdrawn from the pursuits of civil life. the attack made on this quickly-assembled army by the hostile indians on the wabash, when viewed, either as it relates to the nature of the enemy, the time, or the violence with which the attack was made, cannot but be considered of such a character as would have severely tested the collected firmness of the most able and experienced troops. this attack, violent and unexpected as it seems to have been, was repelled by the troops under the command of governor harrison, with a gallantry and good conduct worthy of future imitation. the whole transaction, in the opinion of the committee, presents to the american people a new proof that the dauntless spirit of our ancestors, by whom the war of the revolution was so ably and successfully maintained, has not been diminished by more than thirty years of almost uninterrupted peace, but that it has been handed down, unimpaired, to their posterity. in estimating the claims of the army on the government of the united states, it is worthy of remark, that the nature of the country, as well as of the enemy to be encountered, subjected the army to many extreme hardships, and equal dangers, where every thing was hazarded, and but little could be gained, except the regard of their country. the volunteers and militia (to whose claims the memorials referred to the committee particularly relate) were in actual service but a short time, for which alone they are entitled to pay by law; the compensation, therefore, to which they are entitled, is not at all commensurate to the services rendered, and the dangers incurred. besides, many of the officers and men who fell, or were wounded, in the battle of the th november, , were purchasers of the public lands, for which they were indebted to the united states; which debt falls due in a short time, and the penalty of forfeiture will be incurred if the debt is not paid. it would be unjust to inflict a penalty so severe on the disconsolate widows and orphans of those officers and soldiers of the volunteers and militia, who, in common with their brother officers and soldiers of the regular troops, fell in their country's cause, in a manner so distinguished, that nothing was wanting but a great occasion, interesting to the feelings of the american people, to have crowned their names with unfading laurels. as an evidence, therefore, of the regard due to the bravery and ability displayed by the troops under the command of governor harrison, in the battle of the th november, , as well as to relieve the representatives of those who were killed in the action, from the pecuniary losses incurred in consequence thereof, the committee respectfully submit the following resolutions: . _resolved_, that one month's pay ought to be allowed, in addition to the common allowance, to the officers, (according to the rank which they held,) the non-commissioned officers and privates of the regulars, volunteers, and militia, and to the legal representatives of those who were killed or have since died of their wounds, composing the army under the command of gov. harrison, in the late campaign on the wabash. . _resolved_, that five years' half-pay ought to be allowed to the legal representatives of the officers, (according to the rank which they held,) the non-commissioned officers, and privates, of the volunteers and militia who were killed in the battle of the th november, , or who have since died of their wounds. . _resolved_, that provision ought to be made by law to place on the pension list the officers, (according to the rank which they held,) the non-commissioned officers, and soldiers, of the volunteers and militia who served in the late campaign on the wabash, under the command of governor harrison, and who have been wounded or disabled in the said campaign. . _resolved_, that provision ought to be made by law to pay for the horses and other property of individuals lost in, or in consequence of, the said battle. . _resolved_, that the further time of ---- years ought to be allowed to the officers and soldiers who were wounded, and to the legal representatives of those who were killed, in the said battle, to complete the payments due or which may fall due to the united states on any purchases of the public lands made by them before the said battle. thursday, january . _ursuline nuns at new orleans._ the petition which the speaker laid before the house yesterday, from the ursuline nuns at new orleans, was enclosed to him and recommended by governor claiborne. it prayed for an exchange of the military hospital for some lots which they hold in that city better calculated for a hospital. after the petition was read, mr. dawson observed that he had received a letter from governor claiborne relative to that petition, and in confirmation of the facts therein stated. this community of nuns is a most respectable and useful member of society, the whole of their temporal cares being directed to the education of female youth. they are that community which some years ago presented a most elegant address to the then president of the united states, and received from him an equally elegant answer. i am well assured that the lots which they wish to exchange are more valuable, and better suited for the erection of a hospital than those on which the hospital now stands. i therefore move that the petition and accompanying papers be referred to a select committee, who will no doubt converse with the secretary of war on the subject. this was agreed to, and mr. dawson, mr. lowndes, and mr. macon, were appointed the committee. friday, january . _quartermaster's department._ the bill from the senate "for the establishment of a quartermaster's department" came up on its third reading. mr. alston said, if the house would pay attention to the duty of the purveyor of public supplies, and examine the powers given to the quartermaster general in this bill, it would appear evident that there was no necessity for both offices, and it certainly was not the wish of the house to erect two great departments to perform the same duties. he could perceive no way in which one officer was to be a check upon the other. he liked the bill as it came from the senate better than as amended, as he saw no necessity for retaining the office of purveyor. mr. tallmadge observed, that the great object of this bill, and the only one which made it necessary, was to provide for a quartermaster general's department, instead of military agents, as employed at present. there never was such an officer in the staff department in the revolutionary war. the late secretary of war, as well as the present, were in favor of this change. the military agents, without much responsibility, had nearly controlled the whole war department. an attempt was made two years ago to effect this change, but it then failed. the office of purveyor of public supplies was instituted long before that of military agent. the duties of the quartermaster general and purveyor are very different. the former is a highly respectable and confidential officer; he is next in consequence to the commander-in-chief, with whom he has frequent communication. every movement of the army is first communicated to him. he ought to be a military character. it is his duty to receive and deliver out the necessary supplies for the army, and to attend to its movements. the duties of the purveyor is to purchase, under the direction of the secretary of the treasury, arms, clothing, hospital stores, and every other article necessary for the army. so that there is not the least similarity between the two officers; one being the purchasing, the other the distributing officer. if the office of purveyor were to be done away, the quartermaster general would have to employ a deputy or agent to make these purchases, which would be putting too much in the power of a subordinate officer, and would do away that check which will exist if the purveyor be continued, as the purchaser and distributor of the supplies would be in the same person. the purveyor is also the purchaser of goods for the indian department. mr. williams rose to prevent any person from falling into the mistake which the gentleman from north carolina appeared to have done, by making remarks applicable to the printed bill (a part of which had been struck out and other parts amended) instead of the bill read from the chair. he deemed it unnecessary to add any thing in reply to what had been so well said by the gentleman from connecticut. mr. alston said he had attended to the bill as read, and not to the printed bill; and insisted that, from the provisions of the bill, the secretary of war might direct the purveyor and quartermaster to purchase the same articles. if the bill was what the gentleman from connecticut had stated it to be, he should not have objected to it; but it was not. mr. quincy had doubts whether both these officers were necessary. there was no such officer as purveyor of public supplies during the revolutionary war. if it were found hereafter that another besides the quartermaster general was necessary, he could be appointed. there ought certainly to be a responsibility attached to the purchase of supplies, and this might be placed in the head of the war department or quartermaster general. he had not sufficient light on the subject, to say that both these officers are necessary. he was in favor of the bill as it came from the senate. mr. blount said, that though there was not a purveyor of public supplies during the revolutionary war, there was a clothier, who did much the same business. if we are going to war, said mr. b., he did not see how we could do without a quartermaster general; and it would be improper for him to become the purchaser of supplies, which it is the duty of the purveyor to purchase, because, as had already been stated, there would be no check in the business. there must be propriety in keeping the offices distinct. mr. macon observed, it was impossible to go to war without a quartermaster general; for there is no man has so much to do about an army as this officer. there was always more difficulty in settling the quartermaster general's accounts than any other. the only instance in which a quartermaster general has to purchase supplies, is when, by some miscarriage or accident, the supplies from the commissary or purveyor do not arrive in season. it is necessary that such a power should be vested in this officer, to be used on such extraordinary occasions. as had been stated by his colleague, though there was no purveyor during the revolution, there were clothiers or agents employed in different situations, which answered the purpose. the qualifications necessary for the quartermaster general and purveyor are very different; the one ought to be a soldier, the other a merchant. the bill passed by a large majority. _naval establishment._ the house resolved itself into a committee of the whole on the bill concerning the naval establishment. mr. cheves, the chairman of the navy committee, moved to fill the blank in the first section of the bill with "four hundred and eighty thousand dollars," and said he believed it to be his duty at this time, to disclose to the committee of the whole the views and motives of the select committee in reporting the bill. mr. c. said, i consider this subject as one of the most important that can be brought before this house; as a great question, involving, to a considerable extent, the fate of a species of national defence the most essential and necessary to the interests of this country. i know, said mr. c., how many and how strong are the prejudices, how numerous and how deeply laid are the errors which i have to encounter in the discussion of this question; errors and prejudices the more formidable, as they come recommended by the virtues, and shielded by the estimable motives of those who indulged them. i have been told that this subject is unpopular, and it has been not indistinctly hinted, that those who become the zealous advocates of the bill will not advance by their exertions the personal estimation in which they may be held by their political associates. i will not do my political friends the injustice to believe that these exertions will diminish their confidence; but, could i think otherwise, i hope i shall never be diverted from a faithful discharge of my duty by considerations of this kind. i wish to lead no man, and i am determined not to be blindly led by any man. in acting with a party, i do so, because i adopt their leading principles and politics as the best, and because i believe, from the nature of free government, it is necessary so to act to give efficiency to the exertions of any individual; but i do not feel myself, therefore, bound to renounce my deliberate opinions on all the great interests of the nation, or to take no independent part in the exertions of the party to which i belong. i sincerely believe that, if this infant naval establishment be either abandoned or put down, the party who now form the majority in this house, and in the country, may run great risk of becoming the minority, not only within these walls, but in the nation. it has been said, by a strong and lively figure of rhetoric, that this country is a great land animal, which should not venture into the water. but if you look at its broad high back, the alleghanies, and its great sides swelling to the east and to the west, where do you find its immense limbs terminate? not on some great plain which has been formed for their reception, but in two great oceans, the pacific on the one side, and the atlantic on the other. the figure explains the true interests of the country, in the inseparable union and necessary dependence of agriculture and commerce. the god of nature did not give to the united states a coast of two thousand miles in extent, not to be used. no; it was intended by this bounty to make us a great commercial people; and shall we ungratefully reject the enjoyment of his unexampled beneficence? no, it has not and will not be neglected. a great portion of our people exist but upon the ocean and its fruits. it has been eloquently, and not less truly than eloquently, said, that "the ocean is their farm," and it must and will be protected. but how is this protection to be afforded? i will endeavor to prove that it can be done, and done most cheaply and effectually by a naval force; and if i succeed in this, i shall hope for the concurrence of the committee. no proposition appears to me more true or more obvious, than that it is only by a naval force that our commerce and our neutral rights on the ocean can be protected. we are now going to war for the protection of these rights; but in what way, and under what circumstances? the mode is altogether accidental, and not founded on the permanent relations or means of the country. it is not my intention to condemn the course which has been taken. it has had my hearty concurrence, and my zealous, though feeble, support. i hope it may be altogether effectual; and i believe it will inflict a wound which will be felt with poignancy. but it is, notwithstanding, partial and accidental; for, if great britain had not the canadas on our borders, how could we attack or resist her, armed as we are? if we possess ourselves of the canadas, and this we shall certainly do in the event of war, how and where shall we then continue the war without a naval force? we shall suffer the evils of war, without inflicting any of them on the enemy. we cannot send our regulars or our volunteers on the ocean. does it not then result, inevitably, as the dictate of common prudence, that we should, as soon as possible, commence our naval preparations? the naval establishment of the united states has been heretofore so much neglected, that it is at present in a state of lamentable depression; and the question now is, whether we will suffer it to go down entirely, or attempt to raise it up to some degree of respectability. some gentlemen say, "if you had asked for no more than the reparation of the frigates in ordinary, we might have granted your request." but, for myself, i would not thank any gentleman for this concession. the select committee conceived it to be their duty to bring the question fully before the house in the shape in which they have exposed it. not to ask merely what it would do to assist by naval co-operation, in the first efforts of the contemplated struggle, but principally what it would do towards establishing and perpetuating a respectable naval force for the protection of those important rights of the people, which are, and must continue, exposed upon the ocean. their determination was plainly, candidly, and boldly to speak to the house, and through it to the nation, on this great question, and leave its fate to the wisdom of the one and the good sense of the other. that a respectable naval establishment affords the only effectual means of causing our commercial rights to be respected, will, as a general proposition, be denied by few persons, if any. but its adoption by us is deemed improper by those who oppose it, on the grounds of the enormous expense which, it is said, the establishment will necessitate, and the inability of the nation, by any force which it can provide, to resist, with effect, the immense naval power of great britain. is it not surprising that so much prejudice should exist against this establishment on account of its expensiveness, when it is ascertained that, during the whole eighteen years of its existence, from to , inclusive, it has cost the government only $ , , ? i am afraid i shall be tedious, because the only way in which i hope to bring conviction home to the minds of the house, is by entering, with minuteness and precision, into a dry detail of figures and statements; but the necessity of the case must be my apology for the course which i shall take. if the house shall have full confidence in my statements, much will be gained to the argument; for it will be difficult, if not impossible, for the hearer to follow me through an examination of these details, as the argument proceeds. for this confidence, therefore, i will venture to hope. i believe the statements on which i rely to be accurate, as far as accuracy is material to the discussion. i will state them with candor, and, when i have concluded, i will put them into the hands of gentlemen who may wish to examine them for their own satisfaction, or to refute them. the average annual expense of this establishment, so much censured for its wasteful and improvident management, has but little exceeded $ , , , which is not much more than twice the amount of the usual annual appropriation for our economical civil list. it has been generally supposed that it has been much more expensive than the military establishment, but i will show that this is not really the case. the expense of the military establishment, from to , inclusive, has been $ , , , giving an annual average of $ , , , or $ , per annum more than that of the navy. it thus appears that, in the gross amount, as well as in the annual expenditure, the army has been more expensive than the navy. compare, too, the services of the army with those of the navy, and it will be found that those of the latter have been most useful and most honorable to the nation. i know of no service of this character which the army has performed, except the defeat of the indians by general wayne, and the late gallant affair on the wabash. the navy, in the contest with france in , were victorious wherever it encountered an enemy, and probably laid the foundation of the subsequent accommodation with that nation. in the mediterranean, its exploits gave a name to the country throughout europe; humbled, in an unexampled manner, the piratical and barbarous foe, and crowned itself with a reputation for intrepidity and heroism, which had not been exceeded by the exploits of any nation, and which must go down to a distant posterity. i mean not, by this comparison, to say any thing injurious to the army, but only to declare that preference to which i think the naval services of the country are entitled. admitting, if it be desired, that the navy has heretofore occasioned an expense not warranted by its force or its services; and i cannot deny but that, from a variety of causes, the expense may have been unnecessarily great; an argument cannot thence be fairly drawn against its future use--the contrary is the fair conclusion. past errors lay the foundation of future improvement. it was thus the greatest orator, and one of the greatest statesmen of antiquity, reasoned. the great athenian orator, when rousing his countrymen, by his impetuous eloquence, to resist the ambition of philip, declared that it was on their past misconduct that he built his highest hopes; for, said he, "were we thus distressed, in spite of every vigorous effort which the honor of our state demanded, there were then no hope of recovery." so may we reason in this case; for had these extraordinary expenses been the result of good economy, then, indeed, would their diminution be hopeless; but, as they have proceeded from a wasteful or unskilful expenditure, the remedy will be found in a reform of the abuse; to effect this reform, is the duty of congress. but it has not only been less expensive than the army, but it may be proved, as the committee have declared in their report, that "a naval force within due limits and under proper regulations, will constitute the cheapest defence of the nation." this will be partly proved by a comparison between the expense of the permanent fortifications of our maritime frontier and that of an adequate naval defence. the experience of modern naval warfare has proved that no fortifications can prevent the passage of ships of war. the present fortifications of our maritime frontier, though they are more numerous and better than they have been at any other period in our history, cannot prevent an inconsiderable naval force from laying many of our towns in ashes. indeed, it is believed that no fortifications which can be erected will afford a complete protection against such attacks, while their expense would be oppressive to the nation. the city of new york alone, if completely fortified, would require a further expenditure of three millions of dollars, and a garrison of ten thousand men, and then might be laid in ashes by four or five seventy-fours. but we have a coast of two thousand miles to protect, the expense of which could not be borne by the nation. a better defence would be furnished by such a naval force as would give you a mastery in the american seas, and at home much less expense. the superior cheapness of naval defence seems to me to be satisfactorily established, and i am next to prove that the force proposed--i mean twelve seventy-fours and twenty frigates--are sufficient to protect us in our own seas, and defend our ports and harbors against the naval power of great britain. the first evidence that is offered in support of this proposition, is the opinion of naval men; and if the representations of any man may be relied upon with confidence, so far, at least, as that they are not founded in deception, i believe those of a sailor may be. by naval men, i have been assured that this force is adequate to the object proposed. it is impossible for me to state with accuracy, or in a manner calculated to give a due impression of them, all the reasons which they offer in support of their opinion, but among them are those detailed in the report of the select committee. indeed, they advance the opinion, and support it with reasons, the error of which, if they be erroneous, i am unable to discover, that it will require the enemy to employ a triple force to put himself on a footing of equality with that of the united states. their reasons are, as nearly as i can state them, these: there must be stationed on our coast, at any given time, an equal force; this force cannot be fitted out, unless with great disadvantage to the service in point of expense, and in respect to the health of the crew, for much more than three months' service. an equal force must be put in requisition and kept in readiness to relieve that on the station. but, as all the equipments of the enemy must be made in europe, the force destined to relieve the first must be despatched by the time the first may be supposed to have arrived on our coast, because it will be necessary, at a period as early as the arrival of the second, for the first to return; but the first could not proceed to europe, be equipped, and return to relieve the second in time; and therefore a third equivalent force is necessary, and thus three times the force of the united states must be employed by the enemy to place himself on a footing of equality with it. history may be resorted to, with confidence, to prove that neither great britain, nor any other nation, has ever been able to station, for any length of time, in distant seas, a force equal to that which, in the opinion of naval men, is sufficient to accomplish the objects proposed by the committee--the dominion of the american seas, and the defence of our ports and harbors. there is one fact which, above all others, shows the inability of great britain to keep a large fleet on our coast. from the frozen regions of the north to the isthmus of darien, she has not a port fit for naval equipment or repair, except halifax; and if, as the opponents of the navy seem to think certain, and i hope their opinions may be realized, we shall, in the event of war, deprive her of that, she will be without the means of repairing a disabled vessel in our seas. under such circumstances, any thing but temporary service would be utterly impracticable. but, said mr. c., on the subject of the british naval force, there is great misconception. the high-sounding number of a thousand ships appals the mind, and an examination of its actual force, and the numerous requisitions which are made upon it, is usually rejected as an idle labor. let this examination be made, and at least some part of the terror which it excites will vanish. of the eight hundred and thirty-three ships which great britain had in commission in , and she never had more, it is believed there were only three hundred and eighty-three that exceeded the size and capacity of the large privateers that will probably be fitted out by the citizens of the united states, in the event of war. of this last number, there were one hundred and forty-two of sixty-four guns, and above; twenty-two between fifty and sixty guns; one hundred and fifty-six between thirty-two and forty-four; and sixty-three between twenty and thirty guns. the remainder of the vessels in commission consisted of one hundred and seventy-four sloops, one hundred and forty-one gun-vessels, and one hundred and thirty hired vessels. these hired vessels are small vessels, of from four to ten guns, which, it is believed, are only employed for revenue purposes. this review and enumeration, i have no doubt, proves the actual force of the navy of great britain, however great it really is, to be much inferior to the impression almost universally received, from the high-sounding boast of her thousand ships. nor has the actual force of the british navy been more misconceived than the application of it. the common impression is, that the government can direct to any given point almost an unlimited number of ships. but if this delusive impression be removed, it will be found that, notwithstanding the greatness of the force, the points to which it must be destined are so numerous and dispersed as to put it all in requisition. this i will prove by reference to the distribution of her fleets in . [here mr. c. read a statement of the force and distribution of the british fleet at that time.] from which of these stations, said mr. c., could she have spared, with safety and prudence, a portion of the force employed? could she, from all, have stationed and continued in our seas a force which would have been equal, under the disadvantages which have been pointed out, to twelve seventy-fours and twenty frigates? how much less would she have been able to have furnished a force which would be superior to a naval armament whose expense should equal that of the military preparations of the present year? but it may be said, that the ships which great britain has in ordinary would be more than equal to any increase which any circumstances would require. this might be true, were her seamen unlimited in numbers, and her pecuniary resources inexhaustible; but both are limited, and so must be her naval armament. to fit out vessels which she has in ordinary, would require, within a few thousand, all the seamen in her merchant service, and such an addition to her annual expenditure, as the nation neither would nor could bear. the true object of inquiry to ascertain her efficient power is, what number of vessels is she practically able to keep in commission, and the answer may be received in a shape the most unfavorable to my argument, yet confirmatory of it, in the example of , the year which i have selected for illustration, when it is confidently believed her equipment was greater, combining force and numbers, than at any other period of her history. but, while it is contended by some that it will not be in the power of the nation to establish an effective naval force, there are others who are opposed to it, lest we become too great a naval power. they fear that our fleets will cover the ocean, and seeking victory on all the opposite shores of the atlantic, involve the nation in oppressive expenses, and in wanton and habitual wars. such objects are certainly not contemplated by the report of the committee; nor can such events possibly happen, as long as we remain a free people. the committee have recommended such a navy as will give to the united states an ascendency in the american seas, and protect their ports and harbors. the people will never bear the establishment of a greater force than these objects require. the reasons which forbid great britain, or any other european power, to station large fleets on our seas, will equally forbid us to cross the atlantic, or go into distant seas, for the purpose of frequent or habitual wars. but a navy is said to be anti-republican, because it was opposed by the republicans in . i apprehend, however, that it was then objected to, not because it was anti-republican in itself, but because the republicans of that time believed it was to be employed for improper objects; because, while it was unnecessary at the time, it was of such a nature as only fitted it for the time, because it was part of a system which embraced unnecessary armies and unnecessary taxes and loans, to continue a war beyond the just objects of war--a war which, to use the language of the day, was to be waged by every man, woman, and child, in the nation, to which we are opposed. we are told, also, that navies have ruined every nation that has employed them; and england, and holland, and venice, and other nations, have been mentioned as examples. the vast debt of great britain is declared to be among the pernicious fruits of her naval establishment. this i deny. her debt has grown out of her profuse subsidies, and her absurd wars on the land. though the ruin, which is supposed to threaten england, is attributed to her navy, it is obvious that her navy alone has saved and still saves her from ruin. without it she must, long since, have yielded to the power of france her independence and her liberties. we are told that the same wealth which she has expended in supporting her navies would have been employed more profitably for the nation in the improvement of its agriculture and manufactures, and in the establishment of canals and roads, and other internal improvements. but experience is better than theory. let us compare england with nations which have no navies, or comparatively inconsiderable navies. the nations of the continent of europe are without such overgrown and ruinous naval establishments, but do you there find the highest improvements in agriculture, the most flourishing manufactures, or the best roads and canals? no, it is in this nation, that has been ruined by her navy, that you find all these improvements most perfect and most extended. i mean not either to be the panegyrist of england; but these truths may be declared for our instruction, without suppressing the feelings excited by the wrongs she has done us. england has not, then, i conclude, been destroyed or impoverished, but preserved and enriched, by her navy. was holland ruined by her navy? no; surrounded by the great powers of the continent, with a population not exceeding , , of souls, she protected and secured her independence for more than a century, against her powerful neighbors, by means of her commercial riches, which were cherished and defended by her naval power. did venice owe her decline, or fall, to her navy? while the neighboring italian states were subdued, year after year changing their masters and their tyrants, she long continued to ride triumphantly amidst the storm, independent, and, in a great degree, free. it was her naval and commercial power which made her rich and great, and secured her existence as a state so long. look even at the little republic of genoa, whose inhabitants, but for its commerce and its navy, would scarcely ever have possessed "a local habitation," or "a name!" but i must have exhausted the patience of the house, i will therefore conclude the observations which i proposed to make on the general merits of the question. saturday, january . _naval establishment._ the house then resolved itself into a committee of the whole, on the navy bill; when mr. cheves finished his speech in favor of the bill, as given in full in preceding pages. mr. seybert.--i rise under a pressure of more than ordinary embarrassment--prudence on one hand bids me shrink from the task which i am about to undertake; whilst on the other hand, a conscious duty impels me to engage in the consideration of the question now before the honorable committee. my friend from south carolina (mr. cheves) says this question is all important to this nation; in this i perfectly coincide with him, and therefore cannot rest satisfied with a mere vote on this occasion. sir, it is not my intention to follow the gentleman from south carolina through all the windings of the labyrinth into which he has ventured to penetrate. i will not pretend to chase reason on the wing. i will not particularly follow the gentleman in his comparison of the army and naval establishments of the united states. he has stated to us that the army has cost this nation much more than the navy; he concludes we ought to be equally liberal in our appropriations for both these purposes. sir, i perceive no reason in this assertion. some gentlemen on the other side of the house may say, that we have been lavish in our appropriations for an army; even admitting that in this respect we have been liberal to extravagance, it surely cannot be inferred that we should make ourselves doubly guilty of this charge. i will agree to make appropriations for the establishing a navy for the united states. the gentleman from south carolina has told us, that when the war which we are about to wage, shall be over, our army will leave us. sir, i am happy to hear that on such an event the military will be readily disbanded--a dread of the contrary gave much uneasiness to many a few days since--this is just what we wish should take place. on the other hand, said he, "your proud navy," will remain. it is for this, with many other reasons, why i am opposed to a navy. i wish he could have proved to us, that with the end of the war the navy would also leave us; perhaps i should then agree with him in favor of its establishment: though the "proud navy" will remain with us, he has neglected to tell us at what rate of expense. sir, the gentleman from south carolina says many oppose a navy, because they deem it an anti-republican institution. on this head, i shall remark but little: i will only ask if it is to remain with us in times of peace with its numerous train of officers, may it not become a powerful engine in the hands of an ambitious executive? sir, it was thought proper to make the foregoing remarks as preliminary to the subject. the question of a naval establishment for the united states more especially concerns those who inhabit commercial districts. as one of these i am much interested. many persons maintain, that a naval system of defence is indispensably necessary to a nation, whose seaboard extends more than , miles, with a shipping interest amounting to , , tons--in this respect, ranking the second of modern nations. the argument is as specious as it is plausible; it is liable to many, and in my opinion, to insuperable objections. the proposition before us will be considered as leading to a _permanent_ naval establishment. this course is warranted by the report of the secretary of the navy as well as by the mode which was pursued by my friend from south carolina. i shall not hesitate to declare my decided opposition to such an establishment, and will proceed to state the objections whereon my opinion is grounded. sir, i deem it inexpedient to commence a permanent naval establishment at this time. we are quite unprepared for it--we are in want of all the necessary materials; though we have been told that our forests abound in all the necessary timber, it was said little of this material was to be found in our dockyards. the gentleman from south carolina has told us, that a sufficiency of seasoned timber, to build four seventy-fours, was now on hand, and that the proper authority deemed it advisable to be used for frigates. sir, this timber is a portion of that which was purchased some years since, for the purpose of building six seventy-fours. it now appears, that of this timber as much as was sufficient for two of these vessels, has been employed to build smaller vessels or gunboats, i presume. this is all a piece with our pretended economy. this mode of proceeding will not answer, sir. we are in the wrong from the commencement of our navy. i do not wish it to be understood that i have decided a navy will never be a proper mode of defence for this nation--but whenever it shall be determined on, we should begin right; this can only be done by following those nations who have had most experience on the subject. our first step should be to store away the proper timber. this should be done in times when we can best afford it--in times when our market is glutted--in times when labor can be commanded at fair prices--at a period when we enjoy peace, and surely not when we are about to engage in a war. we have heretofore paid the highest price for every article; we have given double wages for labor; and instances might be mentioned, when the workmen were transported in stage coaches, at an enormous expense, from our large seaport towns to the navy yard of this city. contracts for timber were made in haste and at a very advanced price. as soon as it was obtained, it was put together, and in a few months we saw it floating in the form of a ship of war--_rotten_ ships, i may say, sir, for i believe without exception in the frigates which were built by the united states, the more important parts decayed and were rotten in two, three, or four years. in many instances the expense for repairs was equal to the original cost. a single frigate, the constitution, has cost for repairs, from october, , to march, , the enormous sum of $ , , or upwards of $ , per annum for seven years in succession. let us view this subject in a more extended sense--i mean as regards our commerce generally--we shall still have cause to entertain the opinion which we first adopted. we cannot protect our commerce on the ocean. our ships have vexed every sea--we trade to all parts of the world; of course, to protect our commerce, our ships of war must abandon our coasts and encounter all the force of the enemy or those of europe. the ports we have in view are european. if your frigates, for convenience and safety, are to cruise only on your coasts, what will be the fate of the millions which are embarked beyond the cape of good hope? by this management surely you cannot afford it protection. france, spain, and holland, when combined and backed by an armed neutrality in the north of europe, could not secure their commerce. the fleets of great britain now sail triumphant over every wave of the deep. the russians have a navy far superior to that which it is proposed we shall establish, and they cannot protect their trade in the confined limits of the baltic. they count fifty or sixty sail-of-the-line, besides many frigates and smaller vessels. sir, the expenses which are incurred by a naval establishment, far exceed the profits which arise from the commerce which it is intended to protect. this proposition is warranted by the experience of great britain, the most commercial nation of modern times. in the year , the total imports and exports of great britain amounted to £ , , . for the same year the expenditure for her navy amounted to £ , , , or about one-seventh of the total imports and exports, or fourteen per cent. on the total capital employed in commerce. what regular trade can yield such profits on the outward and inward cargoes? to me this is a secret. in the year mr. pitt computed the profits on the commerce of great britain at £ , , , or one and a half millions less than the expenses for her navy the preceding year! sir, the expenses which are necessarily connected with a naval establishment, constitute a very serious objection to it. at this time, the annual expenditures for the british navy amount to nearly £ , , , or $ , , . every succeeding year brings with it an increase of expenditures. this has been the result year after year since the commencement of the institution. our prospects will be the more evident when we take a view of the expenses which have been already incurred for the infantile establishment of our country; we shall be led to the same conclusions. the american navy was commenced in the year , and by the end of the year , the expenditures amounted to $ , , --a sum much greater than the one-half of the public debt on the st of january, . this would have been much better applied, had it been placed with the commissioners of the sinking fund. i will ask the gentleman from south carolina, what has the nation benefited for this enormous expenditure? what would have been the amount expended, had this engine been herculean, with admirals of the red, white and blue squadrons, with numerous dock and navy-yards, placemen, &c.? for we shall gradually advance to all this, if we do not stop short at this time. for the benefits of such appendages, i will refer you to a statement made to this house, the last session, concerning the navy-yards belonging to the united states; especially to the details of the expenditures of that connected with this city. the document i refer to, was laid before this house on the th february, . it will inform you, sir, that the value of the work done from the st of january to the st of december, , was $ , . the commandant confesses, in his returns made to the secretary, that this work, in many instances, is rated twenty per cent. above the prices paid in other places. the salaries in this same yard, for the same year, ( ,) amounted to $ , - / . so that the pay for the salaries and the wages at this navy-yard, exceeded the value of the articles manufactured, even when rated far above the fair prices, in amount $ , - / ! this establishment is under the immediate eye of the government; we might suppose every attention was paid to economy; if so, who will desire further proofs of the advantages of a navy! sir, i further object to a navy, because it will be the means of exciting many wars, which, without the establishment, may be honorably avoided. it is said, nations are involved in war, in proportion to the extent of their navies; and some assert (brougham) that a perpetual war is one of the two modes which are necessary to support a powerful naval establishment. sir, a naval establishment will create a new and a dangerous interest in our country. nothing is more common than to be told, that such are the wishes of the naval interest of great britain, and that this or that war must be entered into to gratify them. for my part, sir, i shall be very sorry indeed, if ever the period arrives in the united states, when any particular interest or community shall direct the government, whether it be naval, agricultural, manufacturing, or commercial--the general welfare should be the sole great ruling principle in the national councils. sir, i am deterred, when i consider the fate of all those nations who at different periods have been famous for their navies. the naval strength of the hanseatic league was such, two centuries past, as to excite terror on the part of england. these, sir, distant free cities, are now the appendages of mighty france, and have no political existence. who has not heard of the once formidable fleets of venice and genoa? at one time england was indebted to the latter for officers to command her ships of war--alas! these republics are now consigned to oblivion. denmark was at one time the mistress of the ocean; by means of her fleets she often invaded england, and held her in a state of subjection. the danes heretofore burned london, paris, and other great cities--they are now controlled by france, and they have had their copenhagen defeat. holland, with her van tromps, and de ruyters, occupied the british channel at pleasure; this power defeated the navies of england and france. where is holland now? incorporated as a part of the french empire. spain boasted her invincible armadas; elizabeth of england, by nature haughty, proud, and ambitious, trembled at the very mention of them, until they were dispersed and destroyed by storms at sea; spain is now the vassal of france. not very long since the navy of france sailed triumphant along the british coast, looked into portsmouth harbor, and taunted british spirit. i ask you, sir, where is the strength of which these nations formerly boasted? all are inoperative, and dread the gigantic power of the british navy--they are in part sick in dry docks, or are blockaded in their ports. mr. chairman, great britain, though at this time triumphant in every sea, if she persists in her expensive naval establishment, with her present debt of £ , , , which was chiefly created for her navy--great britain, sir, i say, with all this, must sink under the heavy pressure. she will hereafter derive very little satisfaction from her brilliant victories on the st of june off cape st. vincent, camperdown, aboukir, and trafalgar. shall i be pardoned, sir, when i fear our vessels will only tend to swell the present catalogue of the british navy? of the , vessels which she possessed in july, , one hundred and nine were captured from the french, forty-six from the danes, twenty-five from the spaniards, twenty-four from the dutch, and three from the italians; making a total of two hundred and seven captured ships, or one-fifth of her whole navy. small ships are proper for the service of the united states--by their agency we shall be able to annoy the convoys of an enemy. the privateers which were fitted out in every port during our revolutionary war, destroyed much of the british commerce, even in the british and irish channels, whilst the frigates which were built by the government did little or nothing--but two of them remained at the conclusion of the contest. the enemy will not watch your small vessels; they may enter all your small inlets, where heavy vessels cannot venture to approach them; and, at the conclusion of the war, they may be sold for the merchant service. i shall not follow the gentleman in his remarks on the bill before the committee; i shall vote against it, though it is my present intention to appropriate the sums requisite for the repairing and equipping our present ships of war. i will go no further. i tell you, sir, naval victories in the end would prove fatal to the united states; the consequences which have uniformly followed in other countries must take place here. if the united states shall determine to augment their navy, so as to rival those of europe, the public debt will become permanent; direct taxes will be perpetual; the paupers of the country will be increased; the nation will be bankrupt; and, i fear, the tragedy will end in a revolution. mr. mckee rose, with deference, to perform a duty which he owed to his constituents, by delivering his sentiments on the very important subject before the committee, though he confessed himself very inadequate to do justice to it. he deemed the question of great magnitude; as he feared, if we were to proceed to build up a large naval establishment, it would affect the destinies of this nation to the latest posterity. the gentleman from south carolina has said, that he has great prejudices to encounter. mr. mckee would have thought that the deliberate opinion of a majority of congress, expressed upon more than one occasion, was entitled to a more respectful term than _prejudices_. those decisions proceeded from the honest convictions of some of the best friends of the country. mr. mck. denied this doctrine, that "it is demonstrably clear that this nation is inevitably destined to be a naval power;" and he believed that, if the attempt were made to make it such, it would prove the destruction of our happy constitution. he would proceed to show on what ground he supported the opinion that the maintenance of a permanent naval establishment would prove ruinous to this country. for this purpose, he should be under the necessity of submitting some calculations to the house; for, though he had heard a course of this kind condemned, as fit only for the counting-house of the merchant, he considered it as the most conducive to correct legislation. it is certainly a matter of just calculation, when we are called upon to establish a permanent navy, to show that such an institution would cost more than any advantages to be derived from it would compensate. [here the speaker went into detailed statements, taken from the authentic reports of the navy department, showing the enormous expense of building our ships, and the enormous expense of repairs; the great expense of manning and equipping them, and the pay of officers idle at home while the ship was rotting which cost so much, and which, at the time it was built, it was morally certain would have nothing to do until it rotted.] mr. mck. had said, this nation was not destined, under the present constitution, to be a great naval power; and he maintained that the statements which he had exhibited--and which he believed, for the purposes of argument, would be found substantially correct, when tested by experience--went conclusively to show that the expenses of the naval establishment of ten frigates and twelve seventy-four gun ships, now proposed to be built, could not be supported without permanent internal taxes, and a constant increase of the public debt and annual expenditure. and if the system was gone into, to the extent contemplated by the gentleman from south carolina, (mr. cheves,) of building forty frigates and twenty-five seventy-four gunships, which he admitted would be necessary to relieve the naval establishment from comparative inefficiency, the annual expenses of the government with such a system (as already shown) would be more than $ , , , which would rapidly increase the public burdens, and entail on this country that fatal system which has almost ruined the british empire. the gentleman from south carolina (mr. cheves) takes it for granted that our commerce can be effectually protected by a navy; and assuming this fact, he proceeds to show that every portion of the american people are equally interested in the building a navy, because all are more or less interested in protecting commerce. but, the fact is, that navies have never been considered as adequate to the complete protection of commerce. look, said he, at the situation of the old world, in times, to them, more prosperous than the present! what is the fact? holland, with almost no navy, possessed an extensive and profitable commerce; and spain, about the same period, with a large and powerful fleet, had no commerce. but the situation of europe is, in all respects, different from ours. the governments of europe are surrounded by rival powers, who are mostly engaged in war with each other, while we are happily far removed from them all, and have no neighbors to annoy us. therefore, arguments drawn from the old world are wholly inapplicable to this country, because their situation and form of government are altogether unlike ours. and when we turn our eyes from foreign governments to our own, we find that no people since _adam_ were ever more prosperous or more happy than the american people have been for the eight or ten years previous to the year . private fortunes have been accumulated with unequalled ease and rapidity; commerce has prospered beyond example; agriculture has flourished; and the revenue abundant, beyond the wants of the government. and did this state of prosperity exist at a time when your commerce was protected by vessels of war? no; but at a time when your navy was out of use; and in proportion to the increase of your naval expenditure, in the same proportion has your commerce decreased. the protection of commerce is the only ostensible object for which navies are created, while power and conquest are the main objects. show me, said mr. mck., a nation possessed of a large navy, and i will show you a nation always at war. when has england been at peace with all the world, since she became a great naval power? such instances in british history were so rare, and of such short duration, (if they existed at all,) that he could not answer the question; and he believed it would be difficult for the ingenuity of the gentleman from south carolina (mr. cheves) to answer it. it is true, that england, the greatest naval power in the world, is also the most commercial; and it was not to be doubted that her commerce received aid from her navy, though it owed its extent principally to the industry and consequent wealth of the nation. but england has other and far more important objects to effect by her navy than that of protecting commerce. her insular situation renders it necessary for her protection, and she keeps it up for the purposes of war and dominion. england would destroy her navy to-morrow, if the protection of commerce was her only object; because it cannot be denied that the expense of keeping up her navy exceeds the profits of that commerce which it is said to protect. navies, therefore, must be considered as instruments of power, rather than as the means of protecting commerce. they are the vile offspring of those nations where the power and grandeur of the government is every thing, and the people are nothing but slaves! mr. mck. having stated that a navy was an instrument of power, rather than a means of protecting commerce, in order to show that this opinion was not a mere vagary of his own imagination, but the deliberate opinion of some of the wisest men of this country, most solemnly pronounced, he would beg leave to read a document, which he hoped would have weight with some gentlemen of the committee. it is taken from the celebrated instructions of the virginia legislature, of , to their senators in congress, and is said to have come from the pen of the present chief magistrate of the united states; and he believed he could venture to say, that no legislature ever possessed more talents than were drawn together into the virginia assembly on that occasion. after having noticed other subjects, in speaking of the navy, they say: "with respect to the navy, it may be proper to remind you, that, whatever may be the proposed object of its establishment, or whatever may be the prospect of temporary advantages resulting therefrom, it is demonstrated by the experience of all nations who have ventured far into naval policy, that such prospect is ultimately delusive; and that a navy has ever, in practice, been known more as an instrument of power, a source of expense, and an occasion of collisions and wars with other nations, than as an instrument of defence, of economy, or of protection to commerce. nor is there any nation, in the judgment of the general assembly, to whose circumstances this remark is more applicable than to the united states." #/ these opinions may, now, however, be considered as old-fashioned; but being himself an old-fashioned man, he confessed he was more pleased with them than with the new political doctrines preached by the gentleman from south carolina, (mr. cheves) to the house and the nation. it might, however, possibly be the fact, that he (mr. mck.) was wrong, and only indulged ancient _prejudices_, and the gentleman from south carolina right; and if such were the case, he could only say, in his own defence, that, under the influence of those old doctrines, the american people had enjoyed a state of prosperity and happiness unparalleled in the history of man--a state of prosperity which he feared he would never see equalled. he looked back on those days of happy prosperity with the same feelings of mournful regret with which he looked back to the days of his youth, fearing that they, like the days of his youth, would never again return--especially if the navy mania should prevail. establish a navy, said mr. mck. and this country may bid farewell to peace; because you thereby organize a class of society who are interested in creating and keeping up wars and contention. officers in the navy and army are mere cyphers in society in times of peace, and are only respectable in time of war, when wealth and fame may await their exertions. they are, therefore, interested in keeping up a state of war; and being invested with the management of an instrument of war, it is to be expected that it will be used in some degree to answer their own purposes? no man who will reflect for a moment, but must be satisfied that the disgraceful and lawless conduct of the british naval officers on our coast originated in a desire on their part to bring on a war with this country, in which they looked forward to large dividends of prize money; and these acts were contrary to the wish and expectation of great britain; in one instance the act was disavowed; and it may be asked why were the officers not punished who acted contrary to the wishes of the government? the answer is obvious; because the influence of the navy in england is so predominant that the government are afraid to touch the subject, and the consequence is, that the government are compelled to bear the odium of acts which they disapprove; and the same cause which has produced this effect in england, if permitted to operate, will produce a similar effect in this country. our little navy has already contributed much towards the irritation which exists between this country and england; and under any other president than mr. jefferson, it would have brought on a war in . and what real benefit has resulted from it to the government? has a picaroon or a buccaneer ever been chastised by them? if they have, he had no recollection of the case; he had seen indeed paragraphs in the newspapers mentioning that the frigate president, or some one of the vessels, had sailed from the navy-yard to norfolk, from thence to new york, and finally arrived safe at boston; but for what purpose he was totally ignorant, unless, indeed, it was to sail back again, and furnish the materials for a new article for the newspapers; and for these eminent services, the american people have already paid about $ , , . tuesday, january . _naval establishment._ the house again resolved itself into a committee of the whole on the bill concerning the naval establishment. mr. johnson said: i do not know, sir, why i should regret the discussion of any subject in this place, when i recollect that each member is under the same obligations of duty and responsibility. it has been said that no member would be thanked for his vote in favor of this bill--and, fearless of censure, i shall oppose this attempt to lay the foundation, and to pledge the property of the people for naval systems, as ruinous to the finances of the country, as it will be destructive to the peace of the nation. after every effort in my power, i could not suppress the sensation of sorrow, that congress should be distracted with a subject that would justly excite alarm throughout the nation, even in the hours of profound tranquillity. i have looked to the treasury reports, and i see a national debt of about fifty millions of dollars. i look to the aggressions of england, and i find we have been driven to the necessity of creating a great and expensive military force to avenge our wrongs and to expel the enemy from her north american colonies. i look to the arguments of the advocates of this pernicious system, and they acknowledge that we are driven to the brink of a war that will require loans and taxes, and end in a new debt of at least fifty millions of dollars--and under these circumstances, when we are upon the heels of a second revolution, when the people are likely to be most pressed for the ways and means to carry on the war with vigor and certain success, the ruinous system of a great navy is pressed upon us. upon the return of a second peace, when the british possessions shall be incorporated into the union, and our army disbanded--when commerce shall be restored, and a surplus of revenue in the treasury--after meeting the demands of the government, with more propriety might the question be presented for consideration. i believe, sir, since the political reformation in , the question of building a navy had never been before presented directly to the consideration of congress. when mr. jefferson, that illustrious character, presided over the destinies of the united states, why was not this navy-building proposed? then we had a revenue of fifteen millions of dollars annually, and a surplus in the treasury. no, sir, such a system had been put down too recently--the struggles against a navy in ' - were not forgotten. i deny the capacity of the united states to maintain a navy without oppression to the great mass of the community in the persons of tax-gatherers; and if a great navy could be maintained, it would be more than useless--it would be dangerous to the peace and tranquillity of this nation. i was in favor of repairing and putting into service the whole of our naval force, consisting of one hundred and sixty-two gunboats and upwards of fifteen frigates and smaller war vessels; because this naval force, united with our fortifications, would give security to our coasts and harbors, protect our coasting trade, and would be important in the present crisis to co-operate with privateers and individual enterprise against the commerce and plunder of great britain. but this is not the object of the bill. it contemplates and embraces a navy to protect our commerce in distant seas as well as at home, and which cannot cost less than twenty or thirty millions to accomplish; and, when built, would entail upon the government of the united states the annual expense of fifteen millions of dollars,[ ] equal to the amount of our whole revenue in the most prosperous years of commerce under the administration of mr. jefferson, and double the amount of our present financial income. it is the system, as well as the expense, that i object to; and while i am ready as any man to keep a small naval force, to be confined to the protection of our maritime frontiers, as well as i am to keep up a small land force, to protect our territorial frontiers, i will not vote one cent for a system of naval force which is destined to keep foreign nations in check in distant seas, and destined to entail upon this happy government perpetual taxes and a perpetually-increasing national debt. the people will not support such a naval establishment--they have the corrective in their hands; and build this fleet of twenty seventy-fours and forty frigates, and the people will in their turn put them down. but, sir, we are told that we are a commercial people, and that you cannot restrain a spirit of enterprise in our citizens which is limited only by the polar snows to the north and the icy mountains to the south. no person has attempted to damp that gallant spirit, that mercantile enterprise--such adventurous voyages have been fostered and cherished by every means in the power of the government. but, sir, has this unparalleled enterprise, this gallant spirit, been carried on by a navy? such a thing has never been thought of, which proves that this question of a navy has no connection with this commercial enterprise; and the existence of one without the other, is positive proof of the fact. but it is also said, that agriculture and commerce are twin sisters, and the learned gentleman from new york (mr. mitchill) will not allow a more distant connection. i have no objection to such a union, and i did expect that it would have been demonstrated what was the real relationship between these twin sisters and a permanent navy; whether it is that of cousin-german, brother or husband. as these subjects have not been identified, i must be permitted to say that there is no connection--unless under the disguise of protection, the navy would be the destroyer both of commerce and agriculture--by taxes upon the one and constant war upon the theatre of the other. the advocates of a navy need not expect to cover the deformity and danger of the system by telling the people they are friends to the protection of commerce--and that those who oppose it are ready to relinquish our rights upon the ocean. no, sir, this will not do. they will ask if our commerce, as great as it has been, was ever protected by a navy. they will look at the expenditure of the public money--they will see twenty-nine millions of dollars expended upon our present naval establishment; and though they may not complain of that prodigal waste of public money upon so small a naval force, they will look to the effects produced by this power, and they will refuse to augment it, until, indeed, the peace establishment shall require augmentation. the people will look to the votes of this house, and they will see the opposers of a navy willing at this moment to avenge the depredation upon our commerce and neutral rights by actual hostility. i am not prepared to give up our rights, whether upon the ocean or upon land, whether commercial or personal; but i may differ in the means of avenging these wrongs, and vindicating those rights, and i shall ever differ from those who wish a navy to ride triumphant in distant seas, and, under a pretext of protection to commerce, doom the nation to galling burdens too intolerable to be borne. but we are told, sir, that this question partakes of the character of a self-evident proposition. indeed, sir, and in what respect is it entitled to this definition of self-evident? unless, indeed, from every consideration of history, experience and reason, it is evident that a navy is an engine of power and ambition, calculated to embroil a nation in quarrels and wars, and to fix permanent wretchedness upon the industrious class of the people. when we look to the delegation from each state, we find a difference in sentiment upon this subject, whether lying on the seaboard or distant from it. the chairman of the naval committee has attempted to make us believe that a navy is the anchor of our hopes, and i dare venture to say, his eloquent colleague (mr. williams) will in due time denounce it as the most abominable system--always employed in the fell purposes of outrage, plunder, war, and death. the same division of sentiment exists in massachusetts as to this destructive and expensive establishment. and, sir, let me not omit to mention, the sentiments of the republicans of ' - were not only entitled to the love and confidence of the people, but worthy of our imitation. nor will i omit the resolutions of the virginia legislature in opposition to a navy, when they remonstrated against measures which they considered ruinous to the freedom of the united states--nor is my respect for those opinions lessened, although many republicans in congress at this time, and men of talents, have become great advocates for a navy, and i will put it to the people whose opinions are entitled to their approbation, whether a navy beyond the peace establishment is ruinous, or the rock of our safety. leaving the division of sentiment in our country, let us advert to ancient and modern history, and search for examples upon this important subject. and here, sir, i will take this position, and defy history for an example, that no great naval power ever confined their naval strength to the legitimate object of protecting commerce in distant seas. i will refer to tyre and sidon, crete and rhodes, to athens and to carthage. no sooner had these nations ceased to confine their naval strength to their maritime defence at home, to the protection of their seacoast, than they were engaged in plunder, piracy, depredations upon other nations, or involved in wars, which certainly accelerated, if it did not produce, the downfall and destruction of those governments. peace and tranquillity is not the natural state of a great naval power. a disregard of public law, sacred treaties, and bloodshed, would suit it better; and it has been and ever will be, the consequences of such force. these nations furnish another example and instructive lesson to the present generation--that while their commerce and navy furnished a small part of the people with the luxuries of every country at that time known, the great mass of citizens at home were miserable and oppressed. their rights neglected, their burdens increased, and their happiness destroyed, while their fleets and external grandeur carried astonishment and terror to distant nations. when a nation puts forth her strength upon the ocean, the interior of the country will be neglected and oppressed with contributions. ancient history does not furnish a solitary instance of any permanent good, or long continuance of peace arising from a great naval supremacy; such overgrown power, such unnatural strength, must feed upon plunder, at home and abroad. when we come to modern nations we have proof before us of the positions i have taken. we have been told of holland, as a people existing in a most flourishing state of prosperous commerce without a navy to protect it, and we have been told of spain as a naval power without commerce to protect. but leaving these examples, let us look at france and great britain; we here have examples before our eyes; we need no history; the facts are before us. admit that great britain, with her thousand vessels, could protect her lawful commerce, let me ask, if her navy has ever been confined to that object; whether it is confined to that object at this time; whether her navy has not fattened upon the spoils of europe, asia, africa, and america, and the commerce of neutral nations, making war equally upon friends and enemies. her navy, triumphant in every sea, is employed in a system of plunder against the world, and, notwithstanding this supremacy, we see her citizens groaning under a national debt of eight hundred millions of pounds sterling, more than all the nations of the universe could pay. we see her upon the precipice of bankruptcy--we see her people, her numerous subjects, loaded with taxes, that would astonish any man who did not know the fact--notwithstanding this, the public debt is daily increasing, and it is now acknowledged by all the world that she is fighting for her existence--victorious at sea and safe at home from invasion, and still her very existence is at stake. sir, i never wish to see the liberties of my country afloat upon the ocean and staked upon the strength of a navy. look at france, separated from her enemy by a narrow channel, without vessels to meet the fleets of england on the water, and still she is unable to burn the seaport towns of france or invade the french territories, or in any way to make an impression upon her. populous and powerful upon land, nothing but the imperial despotism that exists throughout that vast empire, prevents the country from being the most enviable residence upon the globe, except our own favored land. let not the congress of the united states therefore stake their existence upon navies, let us not withdraw the protecting hand of government from the soil; let us not increase the burdens of the people, and weigh them down with a public debt to support external grandeur. do not by this system destroy the affections and attachments of the solid and honest part of the community, who support the government of the country. sir, the report of the naval committee has assumed principles as erroneous as they are novel--that the protection of maritime commerce was, above all other objects, the first and the greatest consideration which laid the foundation for the present constitution. there is nothing to warrant such a position; and no reason does exist why our commercial rights should have been better secured than the other various rights and interests embraced by that charter of our independence. in the specific grants of powers, congress has the authority to regulate commerce with foreign nations, with the several states, and with the indian tribes; not giving preference in language to foreign over state and domestic commerce. i will admit, sir, that our commercial rights formed one of the primary considerations--not more primary than the rights of agriculture and manufactures, nor the rights of property, the rights of persons, protection from foreign invasion and aggression, or from internal foes. these rights were equally important, and not less the considerations which strengthened the bonds of the union. and if any consideration had a preference, it arose from considerations of peace and war. when i look into the preamble of the constitution, which to be sure is no specific grant of power, but is an interpretation of the objects of that great charter of our union, i find it was to establish justice, insure domestic tranquillity, provide for the common defence and general welfare, and to secure the blessings of liberty, that the constitution was adopted; and although maritime commerce has only a co-equal right with all others, still, the greatest means and resources of the government have been directed to its protection. and still it would seem, if we do not ruin the nation by the establishment of a navy, we wish to make encroachments upon commerce, to damp the commercial spirit. and this we are told in the face of facts which appear upon record, and in the face of every expensive war measure now taken and adopted. sir, in a colonial state, it was a duty upon tea that was the immediate cause of a war, which was bloody indeed, and continued upwards of seven years; a conflict which has no parallel in history as to its beginning and termination. and at this moment, violations of our neutral rights upon the ocean is a primary cause why we are about to wage a second war with great britain; and still we are gravely told that we are unwilling to protect commerce, and that we are ready to abandon it, because we will not vote away the substance of the people upon a system of policy which must ruin the nation if not crushed in its infancy. the constitution says, congress shall have the power to provide and maintain a navy. and this has been read. so has it authorized congress to raise and support armies, to lay and collect taxes, and declare war; but the constitution does not fix the limit of these powers, and all are liable to abuse. and the convention did not suppose that any congress would so far abuse these powers as to keep either a standing army in time of peace, which must endanger the liberties of the people, or a permanent navy, that would involve us in continual wars with other nations, and permanent taxes upon the people. a reasonable peace establishment to protect our maritime and territorial frontier, consistent with strict economy, must have been contemplated; and this force, naval and military, we have maintained; and we are as secure as a nation can expect to be from savages or a maritime foe. there would be as much reason why we should keep in pay five hundred thousand regular troops in time of peace, as your twenty vessels of seventy-four guns and your forty frigates, in addition to our present naval force. in every point of view, therefore, a permanent navy is as injurious to the country as a standing army. one will endanger your liberties by conquest, and the other by wars with foreign nations. but i am asked, how will you contend with a maritime nation, without a navy? sir, that question is as easily answered as the first. i will ask, how we succeeded in the revolutionary war? we were without any security upon our seacoast, and still we succeeded. but to be more specific--i would grant letters of marque and reprisal, and authorize privateering. give scope to individual enterprise, to destroy the commerce of the enemy--which can be done effectually. i would fortify our seaport towns; station our gunboats and frigates along our coast, to protect us at home. and in this way i would in war avenge the infractions of our neutral rights. mr. lowndes.--mr. speaker, in one opinion expressed by the honorable gentleman last up, (mr. johnson,) i can concur. the constitution was not formed for the exclusive protection of commerce, but for the defence of all the interests of the united states. these are to be protected by the whole force of the nation. if he had adhered throughout his speech to this opinion, the question would have been narrowed to the inquiry, by what means shall commerce be protected? he has asserted the adequacy to this purpose of the naval force which we now possess. this is, indeed, a different view of the subject from that which was taken by his honorable colleague. we were told but yesterday, that the undivided exertions of the united states could not give them a navy large enough to be useful. to-day the five frigates which we have in commission are thought sufficient if properly employed, to redress all our injuries. the death of pierce might have been revenged, and the disgrace of the chesapeake obliterated, if these five frigates had been sent a cruising. we did not want force, but spirit to employ it. can it be necessary gravely to answer these assertions? may i not trust their confutation to that general knowledge of the subject which every member of the house possesses? must we inquire what number of british vessels have been lately stationed near our coast, or what greater number it is in the power of england to station there? but, although the honorable gentleman from kentucky is determined to defend commerce by some method which he will not fully disclose, his arguments like those of my honorable friend from pennsylvania, appeared designed to show that commerce was not worth defending. after the full discussion of this subject, produced by the report of the committee of foreign relations, and the debates at every stage of the bill for raising an additional army, the house might have supposed that this question was at last dismissed. i hope, however, to be excused for remarking that both these gentlemen have considered the profits of commerce as confined to the merchant. they have forgotten that commerce implies a change of commodities, in which the merchant is only an intermediate agent. he derives, indeed, a profit from the transaction--but so must the seller and the buyer, the grower and the consumer, or they would not engage in it. so must all those who are supported by their own industry in commercial cities--the clerk, the artisan, the common laborer. but my honorable friend from pennsylvania says that mr. pitt estimated the profits of commerce in england at only twelve millions for a year, in which the naval expense was fourteen or sixteen millions. i suppose this estimate to have been made in relation to the income tax, and it obviously must have referred only to the profits of merchants. the profits of merchants may be computed, but no sober financier would attempt to compute the entire profits of commerce. if it be desirable to form, not, indeed, an estimate, but some conception of its importance, let my honorable friend compute the value of new york, where a few square feet of land are an estate, and then compare it with the value of the same extent of ground for the purposes of the plough. but, is it in this nation, and at this time, that it can be supposed that the profits of commerce are confined to the merchant? your trade was, a few years ago, unrestrained and flourishing--did it not enrich the most distant parts of your country? it has since been plundered and confined. does not the industry of the country languish? is not the income of every man impaired? if commerce were destroyed, the mercantile class, indeed, could exist no longer; but the merchant, the rich capitalist, at least, would individually suffer less than any other part of the community, because, while their property would become unproductive, the value of money would rise rather than fall. the value of commerce, then, has been strangely misunderstood by these gentlemen, who suppose that they have calculated it so very accurately. but whatever may be its value, you have already determined to defend it. considerations of expense are not, indeed, to be neglected. we must employ, in the prosecution of the war, the cheapest and most efficacious instruments of hostility which we can obtain. but the arguments of the honorable gentlemen on the other side, are almost all of them directed against the war rather than the navy. it would be absurd, say they, to protect commerce by a navy, which should cost more than that commerce is worth. it must yet be more absurd, then, to protect it by an army which costs much more than the navy. in the comparison of the expenses and of the efficiency of an army and navy, instituted by my colleague, there is nothing invidious. the army is acknowledged to be necessary. it has had our votes. but, from the acknowledged propriety of raising the army, was fairly inferred the propriety of employing a navy, if it should be proved to be less expensive in proportion to its probable efficacy. war, and all its operations and all its instruments, must be expensive. it is difficult to determine upon the expediency of employing any of these instruments, except by comparing it with some other. to compute the result of this comparison, the honorable gentlemen on the other side must show, not that it is more expensive to maintain a navy than to be without one--not that it is more expensive to go to war than to remain at peace, (these propositions they, perhaps, have proved,) but that the objects proposed to be attained by the navy may be better or more cheaply attained in some other way. my honorable friend from pennsylvania, then, in determining not to follow my colleague in the investigation of the comparative expense of different kinds of force, must have determined to avoid the best, and, indeed, the only method of examination from which a just conclusion could be deduced. the honorable gentleman from kentucky, however, who spoke yesterday, offered objections to a navy, which, if they were well founded, would supersede all further reasoning and calculation. he opposes a navy now--he will oppose it for ever. it would produce no possible good and all possible evil. it would infallibly destroy the constitution. will the honorable gentleman tell us why? how? he sees the danger clearly? will he explain it? an ambitious general might corrupt his army, and seize the capitol--but will an admiral reduce us to subjection by bringing his ships up the potomac? the strongest recommendation of a navy in free governments has hitherto been supposed to be that it was capable of defending but not of enslaving its country. the honorable gentleman has discovered that this is a vulgar error. a navy is really much more dangerous than an army to public liberty. he voted for the army and expressed no fears for the constitution. but a navy would infallibly terminate in aristocracy and monarchy. all this may be very true. but are we unreasonable in expecting, before we give up the old opinion, to hear some argument in favor of the new one? the honorable gentleman has asserted his propositions very distinctly. we complain only that he has not proved them. yet there is a view in which this question of a navy is, indeed, closely connected with the constitution. that constitution was formed by the union of independent states, that the strength of the whole might be employed for the protection of every part. the states were not ignorant of the value of those rights which they surrendered to the general government, but they expected a compensation for their relinquishment in the increased power which would be employed for their defence. suppose this expectation disappointed--suppose the harbor of new york blockaded by two seventy-fours? the commerce of that city, which exists only by commerce, destroyed? the protection of the general government claimed? your whole navy could not drive these english seventy-fours from their station. would the brave and enterprising people of new york consent to see their capital emptied of its inhabitants, and their whole country beggared by so contemptible a force? their own exertions would raise a fleet which would drive off the enemy and restore their city to its owners. but, when a single state shall find herself able to raise a greater fleet than the general government can or will employ for her defence, can it be expected that she shall consider that government as essential to her safety--as entitled to her obedience? i repeat that the federal constitution was instituted by the states, that the strength of the whole might be combined for the protection of any part which should be attacked. but what is the nature of the defence which one of our large states may be supposed interested to obtain from the general government? is it a land force? we can scarcely expect an attack on land, to repel which the militia of new york or massachusetts would be unequal. were either of these states attacked, the general government would protect her by ordering out her own militia. to render the union permanent, you must render it the interest of all the states, the large as well as the small, to maintain it; you must show them that it will provide, not an army which they can have without it, but what without it they cannot have--an adequate navy. the honorable gentleman who anticipates the destruction of the constitution, unless we shall neglect one of the great interests which it was intended to protect, considers the english orders in council as leaving our institutions firm and untouched. regulations, the effect of which is to give to a foreign power the complete disposition of the property of a large class of our people, are it seems in their political result innocent. although every citizen who has property on the ocean become dependent on the english ministry, become their subject, our liberty and independence are (we are told) unimpaired. but let a navy be raised--let the government which expects obedience provide protection, and the constitution perishes! but we have been referred particularly by my honorable friend from pennsylvania to the experience of the world, as having already decided the question which we are now discussing. it seems that venice and genoa, and every other naval power which can be named, have all furnished abundant proof of the ruinous effects which such a force is calculated to produce. sir, the assertion is new. i do not pretend to an intimate acquaintance with the histories of those nations, but i have hitherto believed that the first great shock which the power of venice received, was given by the league of cambray--a league formed to repress her ambition, not of maritime, but of territorial aggrandizement. but, whilst venice has lost her independence, after maintaining it for five or six centuries, may i ask my honorable friend whether the states of italy, which were never oppressed by fleets, had enjoyed a longer term of prosperity and freedom? as to genoa--her naval power, her independence and glory, rose and sunk with the same man--doria. but holland, says the gentleman from kentucky, affords an example of a nation, whose commerce flourished greatly before it had a navy, and decayed while her navy continued powerful. if there ever were a people, whose naval power has been employed to protect and almost to create their commerce, it is the dutch. they fought their way at the same time to trade in the east indies and america, and to national independence in europe. the decay of their trade is to be attributed to the development of the resources of other nations; to the navigation act of england; and the similar measures adopted by other powers. as to france--the period of her greatest financial prosperity probably coincided with that of her greatest naval power; both were due to the administration of colbert. but the evils of a navy (gentlemen tell us) have been concentrated in the case of england. with all her fleets she is destined soon to lose her independence. the expense of those fleets has crushed the industry of her subjects, and must soon reduce her to national bankruptcy. let us suppose that these gentlemen, who have been so much mistaken in regard to the past, may be more accurate in their narrative of the future. still england will have owed to her fleets her redemption from invasion for ages past. while every other considerable nation of europe has been bankrupt over and over again, she is not yet bankrupt. while nearly every other government of europe has been overset, hers yet rides out the storm. should england fall to-morrow, it should seem impossible to deny that her navy will have prolonged her independence for at least two centuries. my honorable colleague has calculated the expense of building and maintaining a navy of ships-of-the-line and frigates, and has explained the principles on which his calculations have been founded. the estimate of the gentleman from pennsylvania can hardly be considered, after the error which has been remarked, as impugning those calculations. i have not myself attempted to estimate the probable expense of maintaining ships-of-the-line and frigates with any precision, but i cannot doubt the fairness of the rule which deduces it from the expense of such a force to england. this is the rule which i understood my colleague to have employed. it has not been disputed in debate; it has been in conversation. many gentlemen have objected to an estimate of the expenses of a navy during war, in which (as they suppose) no allowance is made for the peculiar expenses which war involves. to have all our ships safe at the end of the contest is observed to be rather a sanguine expectation. but if the rate of expense in the estimate of my colleague were deduced from the rate of english expense during war, these objections must be altogether groundless. now, it _was_ deduced from the expense which is found sufficient to maintain the english navy in a state of unimpaired strength during war. the english expense, from which it was inferred, included the charge of docks and navy-yards, of the repair of old ships and of the building of new ones. it included pensions to their officers, and even the support of the prisoners taken from their enemies. i have on my table a detailed account of the english naval expenditure for a year of the last war. the whole amount was about twelve millions and a half, and of this sum fully four millions and a half were applied to what may be considered the contingent expenses of the navy. now, is there any reason to suppose that the contingent expenses of our navy would be greater in proportion to its force than this? and if not greater, has not an allowance been made for the capture of some of our ships, or, in other words, for the building of new ones? it is true, that from the superiority of english sailors to their present enemies, england loses little by capture, and, it may be supposed, that from the greater frequency and severity of our conflicts when we shall be engaged in war against her, our contingent expenses may be greater in proportion to the number of our ships then hers. but there are many expenses to which she is necessarily subject, from which we shall be exempt. i will instance that resulting from blockading squadrons, and that from repairs in colonial and foreign ports. these can appear inconsiderable to no man who has given his attention in any degree to the subject. naval men i believe would not contradict me, if i were to state the expense of a ship employed in a strict blockade, and particularly during the winter months, as fully double that of a ship engaged in ordinary service. in fact, england finds the expense too great for her finances, and has been obliged, in some measure, to give up the practice. the other article of expenditure to which i have referred, i shall not attempt to estimate with any precision. it must, however, be obvious to every man, that the ships of war of england must frequently be repaired and refitted in distant countries. in these the most scrupulous fidelity and economy on the part of her officers cannot prevent the expense from being frequently extravagant. the most salutary regulations and most provident instructions on the part of the administration at home cannot prevent her officers from being sometimes careless and fraudulent. i recollect an instance of the enormous expense involved in the distant services required from the british navy, which i cannot pretend to state with accuracy, but in which i hope not to be substantially wrong. sir home popham (a distinguished officer in the english navy) had under his command in the last war two or three frigates in the east indies. they had left england in good condition, and their repairs for two or three years, and the supply of the different articles of equipment which they occasionally required, exceeded, i believe, the prime cost of the vessels themselves. these two items of expenditure, blockading squadrons, and repairs in distant countries, (to neither of which an american navy would be liable,) will be acknowledged, i think, to justify the conclusion, that the contingent expenses of the english navy must be as great in proportion to its force as ours would be in war--and therefore that the rule employed in the calculations of my colleague was correct. but our resources for the equipment of a navy appear to the honorable gentlemen on the other side, as deficient in respect to men and money. sailors in this country cannot be obtained in sufficient numbers without impressment. it is not necessary, sir, to inquire whether for the defence of their peculiar rights the services of a marine militia may not be required. there is no reason to doubt our being able to procure the voluntary services of our seamen. if we shall at any time be engaged in a war (like that with france in ) which shall leave the greater part of our trade unaffected, the wages of sailors will, indeed, be high, but the number required will be small and the government can afford high wages. in a war of a different character--against a nation powerful at sea--your sailors will be thrown out of employment and their wages will be necessarily low. but gentlemen object to this reasoning on the supposition that in such a case our sailors would all engage in privateers. the notion that in any war there will be a demand in this country for more than thirty thousand sailors for privateers is surely an extravagant one. but it has been shown by my colleague that in a war which should diminish our trade by one-half, (and a war requiring any great naval exertion would necessarily do this,) thirty or forty thousand seamen may be employed in privateers, and a sufficient number would remain for your public ships. but are not your privateers as much a part of the naval force of the nation as your ships of war? it has been said, indeed, that they are the more useful part. now, if the government should believe (what neither sober reflection nor the experience of other nations can permit it to doubt) that this part of your force cannot be in any great degree serviceable unless supported by a fleet--then surely a limitation to its extent, which would be necessary even to the interest of its owners, cannot fairly be objected to. the law just passed for raising twenty-five thousand men, provides, i think, for only one regiment of cavalry. now, it is very possible that a much larger proportion of the twenty-five thousand men that can be accommodated in this regiment, may choose to go to canada on horseback. they must be disappointed, and either not go into the army at all, or go into the service which they least desire. no man has hitherto denounced the act as on this account tyrannical and oppressive. yet this case seems to me a true parallel to the other. in the naval, as in the military service, the interest of the country requires the employment of different sorts of force; and the object may be attained with equal fairness in both services by limiting the amount of the favorite force. mr. law said: being in favor of the bill now under consideration, i beg leave to express my sentiments, and state the reasons in support of my opinion; and the only pledge i shall offer to the house, for their attention, is, that i shall not occupy much of their time. this bill, sir, embraces two objects--one relates to the repairs and equipment of the ships of the united states now out of service--the other contemplates the building of ten additional frigates, and laying the foundation of a new naval establishment. the view which i entertain of this subject, does not arise from its connection with that system which grows out of what is called the present crisis, or putting the nation in armor for war, as reported by the committee of foreign relations; but from a conviction, that, as an abstract question or matter of general policy, i deem it for the interest and security of the united states, to begin the establishment of a navy, to be perpetuated and extended hereafter--and, because i believe it may be accomplished, to the extent at present proposed, from the ordinary means we ought to possess, without adding any new burdens on the citizens. in order to decide whether it is for the interest of the united states we must examine and see how it is connected with the great and essential interest of the country. the basis of our national wealth is agriculture; the real substance of the nation is drawn from the earth. this arises from the great and extensive territory which we possess, thinly settled, low in price, of an excellent soil, capable, from its fertility and variety of climes, of affording produce of every kind, in the greatest abundance. the surplus of all is wanted in other countries, where nature has been less bountiful; and it must be a great while before the labor of our citizens can be diverted extensively into other channels--i mean manufactures. this is a condition in which we ought to rejoice for the causes, which bind us in this necessity, are those which tend to preserve the morals, the happiness, and the independence of the nation. and until our lands are taken up, and population becomes redundant, the basis of our national wealth must be the farming interest. but, sir, in a country so blessed by nature; where the inhabitants have the greatest stimulus to industry, the fruits of their labor secured by just and equal laws; where the property cannot be taken from the owner without his consent, there will be a vast surplus, beyond what the consumption of the country requires. hence, commerce springs up as the daughter and handmaid of agriculture. without commerce, agriculture would languish. with it, wealth is consolidated, and industry promoted. it diffuses its benign influence, discoverable in the splendid and delightful improvements, which rejoice the eye of the traveller, throughout the country. and it is as unnatural for the farming interest to oppress the commercial, as it is for the parent to abandon its offspring. they mutually cherish and support each other; and, by natural sympathy, must be affected by the checks and disorders which each may receive. but commerce must be protected. it cannot protect itself against force. being carried on abroad on the ocean, (for i am speaking of foreign commerce,) it is subject to annoyance, interruption, and hazard. we must pass the common highway of nations to get to a market; and in this route, the weak and defenceless must, and always will be the sport and prey of the strong and violent, whom they meet in the way. from the wretched state of those nations with whom we have intercourse, we, from weakness, must fall victims to their violence. this is an evil which we shall always experience as a neutral, coming in collision with belligerents. shall we then abandon commerce, or shall we strive to support it? it will be for the interest of the country to support it, if possible; for if we abandon it, the evil will recoil on the agricultural part, who, no longer than foreign commerce is supported, can find a vent for their surplus; and without a vent for the surplus, a bare competency might be endangered. internal commerce would always fail, for that, being but a stream from foreign commerce, must dry when the fountain from whence it issues fails. enterprise ceases, and languor and poverty ensue. it is then for the interest of the nation to cherish commerce. but how can this be done? will a navy have this effect? i think it will. indeed, if the little navy which was commenced some years ago, had been supported and increased as it might have been without any difficulty, we might, and in all probability should, have avoided our present calamities. we are now the defenceless prey of both france and england; deprived of the common rights of nations and citizens of the world. will it then be asked, shall we not go to war and fight our way? i have already recorded my negative on the several questions preparatory to that step, and i am decidedly against going to war. we have not the means necessary, and unsuccessful resistance will only make our condition worse. i verily believe, if this nation had fostered our infant navy, from the time it was commenced, and had not, by a strange infatuation, abandoned and neglected it, it would now have been too important to be despised, by either france or england. our prosperity would have continued. our strength would have been dreaded, and our friendship courted by both nations. while they have been contending for the mastery, we, with such naval force as we ought to have had, and a strict course of neutrality, might have pursued a lawful and gainful trade. we might have had a perpetual revenue of sixteen millions, instead of the pittance now received at the treasury. i believe, that with the navy we might have had, and a correct strict neutral course, there would have been neither berlin and milan decrees, nor orders in council, to annoy our lawful commerce. mr. roberts observed, that there appeared to be a disposition in the committee to take the question on the filling the blank in the first section without further debate. as he could not vote for appropriating $ , for the repair of the vessels of war unfit for service, it would perhaps be the most proper time to submit his opinions. i have not, mr. chairman, said he been a listless hearer of the very ingenious arguments advanced by gentlemen in favor of the report. he had, however, been so unfortunate as to be more confirmed in his inclination to vote against the bill, from attentively weighing these arguments. the select committee in their report (for they had reported specially as well as by bill) have said, with oracular confidence, that this country is inevitably destined to become a naval power. he had not, with them, become a fatalist. though he was disposed to claim a high destiny for his country, he did not believe that destiny was yet immutably fixed. he, however, believed the question now to be decided must have an influence on that destiny, that might at an early day, if decided affirmatively, obliterate our happy civil institutions; if negatively, preserve them long the best blessings of posterity. gentlemen who have advocated a naval establishment, have chosen to consider this bill and report as the furtherance of a system already in existence, and that, however short of their wishes the committee may be disposed to go, they stand prepared to view whatever might be done to augment the naval force as an evidence of assent to their system. mr. r. said at one time he had inclined to vote for the appropriation of a sum to equip such of the vessels now out of service as might be found worthy of refittal. but on discovering it would be considered as an acknowledgment that a navy was proper in the sense it had been brought into view by the committee, and doubting, on better consideration, whether there was not great likelihood the money would be worse applied in repairing old, than in building new vessels, and feeling a conviction that if these vessels should be deemed worthy of repair, they could not be brought into action in that exigence of war when they could be useful, as in that case land defence must be resorted to, and the consequent expense incurred, he should feel it his duty to vote against this appropriation. it has been observed that the constitution has invested congress with power to regulate commerce, to provide and maintain a navy, &c. there is nothing, said mr. r., imperative in this. it was necessary in a general grant of powers to insert many items to be left to the sound discretion of congress, to use or not to use. soon after the government came into operation, it became a favorite object with one set of politicians to form a navy. on the occasion of our commerce being depredated upon by the barbary corsairs, the question first came up. it became a matter of deliberation whether a peace should be purchased of them with money and presents; whether some european power should be subsidized to keep a few frigates on that station, or whether a naval force should be equipped for the purpose (as alleged) of enabling the president to negotiate to better effect. the party with whom i have always found it my duty to act, said mr. r., opposed, on that occasion, the commencement of a navy system, when it was invited under circumstances so specious. they were, however, in the minority. the ships of war were voted--with what effect on the algerines, he did not stop to inquire. if this opposition to the commencement of a naval establishment was wrong in the minority, their successors ought not to follow them; but if it should be found that they were right, the ground ought never to be quitted. the question of increasing the navy was again discussed in the celebrated times of ' - . the collisions with france had raised the war fever very high. a navy was vociferously contended for as the most efficient means of defence. it was when things were in this state, that the president, in his reply to the marine society of boston, who had with much fervor tendered him their approbation of his measures, hoped to see the wooden walls of america considered as her best defence. because athens, when she was invaded by the hosts of xerxes, had chosen to interpret the oracle that promised her safety in wooden walls, rationally, america must take the same course, however dissimilarly situated. the people of attica, inhabiting a circumscribed territory, found safety in their fleet, and they could have found it nowhere else. but such cannot be the case with america. even the hosts of xerxes could not make it necessary for the american people to quit their territory--the figure would not hold. on this occasion, too, the republican party consistently opposed a navy; strange blindness and obstinacy, if they were not sustained by reason as well as principle. on this occasion, the supporters of a navy system were a majority in council. for a moment they succeeded with their measures. but the public councils were soon filled by the people with men of other minds, and the question was put to rest. gentlemen have considered this subject on its general principles and remote consequences. in this point of view, said mr. r., it presents a wide field for reflection. the chairman (mr. cheves) has complained he has had to meet this subject encumbered with much error and many prejudices; among which is the idea that a naval system is prejudicial to civil liberty. the opposers of a navy, with an air of no small triumph, are called upon to show how a system of maritime power would endanger the freedom of our country. it has been said, a military chieftain, by an easy transition, may become a civil ruler, and that the commander of an army has often become a despot, while no such event could happen from a naval commander, as such an office gave no power on _terra firma_. if we look a little deeper into the subject, we shall find we have as much to fear, and even more, from a naval than a military power. the latter can only be kept in time of war, and for comparatively but short periods; at a time too, when the public spirit is awakened and ready to oppose encroachment. the chair of rule may possibly be gained by a military chief; but an attempt on the public liberty has a much greater chance to fail. evils of this sort can only take place on very rare contingency; but the ruin of the public liberty can hardly fail to be a consequence of the establishment of a naval power. history proves to us that maritime power has always excited national ambition to a spirit of conquest and plunder. a naval power will seek colonies and ports in distant places. the chance, nay, the certainty, of collisions with other nations, is multiplied, and a corruption of morals is produced, that cannot fail to make the first government on earth a tyranny, by a course of events that the patriot can neither prevent nor divert to other consequences. a short time after athens had found safety in her wooden walls, one of her statesmen proposed she should burn the fleets of her neighbors, that she might thereby be rendered mistress of greece. this project the virtue of the people resisted; but that virtue soon gave way in the expedition to the cyclades, where her navy committed acts of violence that must indelibly fix the stain of the blackest perfidy and cruelty on the athenian character. what could be a more unprovoked act of aggression than her crusade against syracuse, a crime that visited her with a declension of power from which she never recovered? for a nation to believe her destinies fixed, is in a great measure to fix them. nothing, perhaps, contributed more to make rome the mistress of the world, than the oracles that promised it. her heroes and statesmen were stimulated thereby to fulfil her destiny. the maritime supremacy of britain is, perhaps, owing as much to the belief that she is the destined queen of the waters, as to any other cause. though such operations be calculated to bring about astonishing effects, how unfortunate is it when a nation's eyes are thus directed to improper attainments--it becomes a source of incalculable evil. athens and rome were the victims of such a policy, as britain is at this time. i fervently hope, said mr. r., for a better destiny for our beloved country. rome and carthage were both great maritime powers; it was not in lybia and italy they began to contend for superiority, but in sicily and iberia. the conflicts thence arising brought terror to the gates of rome, and laid carthage in ashes. the abuse of maritime power in both those states changed the free features of the government, and left a dreary despotism in their stead. a naval victory secured to the second cæsar the rule of the mistress of the world. in later times, we have been told, said mr. r., the declension of maritime states has been due to other causes than their naval establishments. in some instances it may have been so. when the strength and power of a state has arisen entirely from the profits of commerce, when that commerce has taken another course, the transitory splendor it has built up has vanished. venice was an example of this. the commerce of the east caused her to rise out of the circumscribed and marshy islands at the bottom of the adriatic, the proud mistress of the waves. when the cape of good hope had been doubled by the portuguese, her commercial advantages failed. she sunk from the conqueror of the eastern empire, to a mere city of italy and portugal; a narrow territory, by the same commerce, assumed the first rank among the nations of the world. a naval power may serve sometimes to extend commerce to wider limits; but it can by no means control it with certainty to channels through which nature, and often the policy of other nations, bid it to flow. what is the state of british commerce at this time? the rupture of the peace of amiens did not arise from britain having received injuries from france after the cessation of hostilities. the new war was a commercial one. the british cabinet saw, in a state of peace, france would not be unmindful of her commercial interests. the intelligence, the enterprise, and population, and the resources of france, all indicated that she would at least divide successfully the profits of commerce with her rival. the naval power of britain giving her the command of the sea, she could oppose only with effect the growing commerce of her neighbor in a state of war. this step of british policy imposed on the ruler of france the necessity of changing the channels of commerce. in this way he has aimed a blow at the vitals of her strength, which her tremendous naval power neither enables her to avert nor lessen its force. her marine puts the trident into her hands, but she can no longer shake the earth. her monopolizing spirit has sealed the continent of europe against her, and interdicted her commerce with america. she has reduced the ocean almost to a desert; and she seems hastening to that destiny which has generally attended her predecessors in naval power through her ambition to rule the waves. gentlemen propose to protect commerce on this side the gulf stream, yet admit if our vessels are despoiled on the indian ocean, we must apply retaliation in the west indies. the gulf stream limitation is at once given up; a new expedition to the cyclades is in that case to take place. begin your conquest in the west indies, and you must increase your navy to acquire and defend them. it is at once an admission that naval power must be used more for ambition than the protection of commerce and our territorial waters. but, what is worse, as you acquire colonies and ships you must create armies. the hands of the executive, restricted and elective as it is, in the united states, became thence armed with a sceptre formidable indeed, and the more so as it acquires this strength without producing the shock to public feeling which the seizure of power by a military leader will always excite. it has been said, (said mr. r.,) that the existence of great britain hung upon her navy in the contest in which she is now engaged. if her fate hangs suspended by her naval power, she owes her peril to that source. without her maritime strength, would she have aspired to balance the scales of power on the continent? would she have become a party to the infamous conspiracy of pilnitz? would she have wantonly plotted the dismemberment of france? would she have broken the peace of amiens whence her present dangers arise? certainly not. on the article of cost, said mr. r., it is of little importance whether the army or navy of great britain is most burdensome on her finances, though it has been dwelt upon with particular emphasis, nor whether an army be more expensive in every case, than a navy. armies are a necessary consequence of navies. has not the british army increased with equal pace with her navy? the humane mind, said mr. r., cannot contemplate without pain, that from naval power have flown the most copious streams of human misery. the plunder of half the world, with immense advantages in addition, has not sustained the british navy. a debt has been accumulated that almost baffles the power of figures to estimate. but debt, and a prospect of government insolvency at home, are of much less account than the wrongs this navy has wrought on the society of nations. and yet it is this government that is held up to republican america as a model for imitation. need i remind you, said mr. r., of the millions of victims sacrificed to commercial cupidity on the plains of hindostan, by means of this navy? a population, thrice as great as that of the british isles, has been exterminated in this devoted region, within comparatively but a few years, by mercantile rapacity. colonel dowe informs us, that the wealth of one of the cities of this wretched country had whetted the avarice of clive and his associates, and that an offer was made to the government to pay the public debt for permission to sack it. it was too gross an act of infamy to assent to, and the adventurers obtained their end by other means. a famine and pestilence was substituted for the bayonet, and the spoils of the devoted city glutted the hands of rapine. in this exploit, a shoe-black divided his £ , . need i remind you, said mr. r., that the population of africa has been drained, to groan out a wretched existence in the west india colonies, to prop up this naval and commercial power, or that the remotest corners of every sea have been visited with the scourge of blood and desolation for the same purpose? on general principles, does not past experience afford sufficient warning to these states to avoid those shoals on which so many nations have been wrecked? mr. chairman, under no view which i have been able to take of this subject, considering it either as the furtherance of a system of naval power, to be expanded with the growing strength of the union to gigantic size, or that it is a proper time for providing a temporary increase of naval force, can i agree, said mr. r., to the bill on your table. when mr. roberts had concluded, the committee rose, and had leave to sit again. wednesday, january . another member, to wit, william m. richardson, from massachusetts, appeared, produced his credentials, was qualified, and took his seat. _naval establishment._ the house again went into a committee of the whole on the bill concerning the navy. the question on filling up the blank in the section which provides for repairing the vessels on hand, with four hundred and eighty thousand dollars, was carried by a large majority. the next section provides for the building of ---- additional frigates. mr. clay (the speaker) rose to present his views on the bill before the committee. he said that as he did not precisely agree in opinion with any gentleman who had spoken, he should take the liberty of detaining the committee a few moments while he offered to their attention some observations. he was highly gratified with the temper and ability with which the discussion had been hitherto conducted. it was honorable to the house, and, he trusted, would continue to be manifested on many future occasions. on this interesting topic a diversity of opinion has existed almost ever since the adoption of the present government. on the one hand there appeared to him to have been attempts made to precipitate the nation into all the evils of naval extravagance, which had been productive of so much mischief in other countries; and, on the other, strongly feeling this mischief, there has existed an unreasonable prejudice against providing such a competent naval protection for our commercial and maritime rights as is demanded by their importance, and as the increased resources of the country amply justify. the attention of congress has been invited to this subject by the president in his message delivered at the opening of the session. indeed, had it been wholly neglected by the chief magistrate, from the critical situation of the country, and nature of the rights proposed to be vindicated, it must have pressed itself upon our attention. but, said mr. c., the president, in his message, observes: "your attention will, of course, be drawn to such provisions on the subject of our naval force as may be required for the service to which it is best adapted. i submit to congress the seasonableness also of an authority to augment the stock of such materials as are imperishable in their nature, or may not at once be attainable." the president, by this recommendation, clearly intimates an opinion that the naval force of this country is capable of producing some effect; and the propriety of laying up imperishable materials was no doubt suggested for the purpose of making additions to the navy, as convenience and exigencies might direct. it appeared to mr. c. a little extraordinary that so much, as it seemed to him, unreasonable jealousy should exist against the naval establishment. if, said he, we look back to the period of the formation of the constitution, it will be found that no such jealousy was then excited. in placing the physical force of the nation at the disposal of congress, the convention manifested much greater apprehension of abuse in the power given to raise armies than in that to provide a navy. in reference to the navy, congress is put under no restrictions; but with respect to the army--that description of force which has been so often employed to subvert the liberties of mankind--they are subjected to limitations, designed to prevent the abuse of this dangerous power. but it was not his intention to detain the committee by a discussion on the comparative utility and safety of these two kinds of force. he would, however, be indulged in saying, that he thought gentlemen had wholly failed in maintaining the position they had assumed, that the fall of maritime powers was attributable to their navies. they have told you, indeed, that carthage, genoa, venice, and other nations, had navies, and, notwithstanding, were finally destroyed. but have they shown, by a train of argument, that their overthrow was, in any degree, ascribable to their maritime greatness? have they attempted even to show that there exists in the nature of this power a necessary tendency to destroy the nation using it? assertion is substituted for argument; inferences not authorized by historical facts are arbitrarily drawn; things wholly unconnected with each other are associated together--a very logical mode of reasoning! in the same way he could demonstrate how idle and absurd our attachments are to freedom itself. he might say, for example, that greece and rome had forms of free government, and that they no longer exist; and deducing their fall from their devotion to liberty, the conclusion in favor of despotism would very satisfactorily follow! he demanded what there is in the nature and construction of maritime power to excite the fears that have been indulged? do gentlemen really apprehend that a body of seamen will abandon their proper element, and, placing themselves under an aspiring chief, will erect a throne to his ambition? will they deign to listen to the voice of history, and learn how chimerical are their apprehensions? but the source of alarm is in ourselves. gentlemen fear that if we provide a marine it will produce collisions with foreign nations--plunge us into war, and ultimately overturn the constitution of the country. sir, if you wish to avoid foreign collision you had better abandon the ocean; surrender all your commerce; give up all your prosperity. it is the thing protected, not the instrument of protection, that involves you in war. commerce engenders collision, collision war, and war, the argument supposes, leads to despotism. would the counsels be deemed wise, of that statesman who should recommend that the nation should be unarmed--that the art of war, the martial spirit, and martial exercises, should be prohibited--and that the great body of the people should be taught that national happiness was to be found in perpetual peace alone? no, sir. and yet every argument in favor of a power of protection on land applies, in some degree, to a power of protection on the sea. undoubtedly a commerce void of naval protection is more exposed to rapacity than a guarded commerce; and if we wish to invite the continuance of the old, or enaction of new unjust edicts, let us refrain from all exertion upon that element where they operate, and where, in the end, they must be resisted. for his part, mr. c. said, he did not allow himself to be alarmed by those apprehensions of maritime power which appeared to agitate other gentlemen. in the nature of our government he beheld abundant security against abuse. he would be unwilling to tax the land to support the rights of the sea, and was for drawing from the sea itself the resources with which its violated freedom should at all times be vindicated. whilst this principle is adhered to, there will be no danger of running into the folly and extravagance which so much alarms gentlemen; and whenever it is abandoned--whenever congress shall lay burdensome taxes to augment the navy beyond what may be authorized by the increased wealth, and demanded by the exigencies of the country, the people will interpose, and, removing their unworthy representatives, apply the appropriate corrective. mr. c. could not, then, see any just ground of dread in the nature of naval power. it was, on the contrary, free from the evils attendant upon standing armies. and, the genius of our institutions--the great representative principle, in the practical enjoyment of which we are so eminently distinguished--afforded the best guarantee against the ambition and wasteful extravagance of government. what maritime strength is it expedient to provide for the united states? in considering this subject, three different degrees of naval power present themselves. in the first place, such a force as would be capable of contending with that which any other nation is able to bring on the ocean--a force that, boldly scouring every sea, would challenge to combat the fleets of other powers, however great. he admitted it was impossible at this time, perhaps it never would be desirable for this country to establish so extensive a navy. indeed, he should consider it as madness in the extreme in this government to attempt to provide a navy capable to cope with the fleets of great britain, wherever they might be met. the next species of naval power to which he would advert, is that which, without adventuring into distant seas, and keeping generally in our own harbors, and on our coasts, would be competent to beat off any squadron which might be attempted to be permanently stationed in our waters. his friends from south carolina (messrs. cheves and lowndes) had satisfactorily shown that, to effect this object, a force equivalent only to one-third of that which the maintenance of such squadron must require would be sufficient. that if, for example, england should determine to station permanently upon our coast a squadron of twelve ships-of-the-line, it would require for this service thirty-six ships-of-the line, one-third in port repairing, one-third on the passage, and one-third on the station. but that is a force which it has been shown that even england, with her boasted navy, could not spare for the american service whilst she is engaged in the present contest. mr. c. said he was desirous of seeing such a force as he had described, that is, about twelve ships-of-the-line and fifteen or twenty frigates, provided for the united states; but, he admitted that it was unattainable in the present situation of the finances of the country. he contended, however, that it was such as congress ought to set about providing, and he hoped, in less than ten years, to see it actually established. he was far from surveying the vast maritime power of great britain with the desponding eye with which other gentlemen beheld it. he could not allow himself to be discouraged at the prospect even of her thousand ships. this country only required resolution, and a proper exertion of its immense resources, to command respect, and to vindicate every essential right. when we consider our remoteness from europe, the expense, difficulty, and perils, to which any squadron would be exposed, stationed off our coasts, he entertained no doubt that the force to which he referred would insure the command of our own seas. such a force would avail itself of our extensive seaboard and numerous harbors, everywhere affording asylums to which it could retire for safety from a superior fleet, or from which it could issue for the purpose of annoyance. to the opinion of his colleague, (mr. mckee,) who appeared to think that it was in vain for us to make any struggle on the ocean, he would oppose the sentiments of his distinguished connexion, the heroic daviess, who fell in the battle of tippecanoe. [here mr. c. read certain parts of a work written by colonel daviess, in which the author attempts to show that, as the aggressions upon our commerce were not committed by fleets, but by single vessels, they could in the same manner be best retaliated; that a force of about twenty or thirty frigates would be capable of inflicting great injury on english commerce by picking up stragglers, cutting off convoys, and seizing upon every moment of supineness; and that such a force, with our seaports and harbors well fortified, and aided by privateers, would be really formidable, and would annoy the british navy and commerce, as the french army was assailed in egypt, the persian army in scythia, and the roman army in parthia.][ ] the third description of force worthy of consideration is, that which would be able to prevent any single vessel, of whatever metal, from endangering our whole coasting trade, blocking up our harbors, or laying under contribution our cities; a force competent to punish the insolence of the commander of any single ship, and to preserve in our own jurisdiction the inviolability of our peace and our laws. a force of this kind is entirely within the compass of our means at this time. is there a reflecting man in the nation who would not charge congress with a culpable neglect of its duty, if, for the want of such a force, a single ship were to bombard one of our cities? would not every honorable member of this committee inflict on himself the bitterest reproaches, if, by failing to make an inconsiderable addition to our gallant little navy, a single british vessel should place new york under contribution? yes, sir, when the city is in flames, its wretched inhabitants begin to repent of their neglect in not providing engines and water buckets. if, said mr. c, we are not able to meet the wolves of the forest, shall we put up with the barking of every petty fox that trips across our way? because we cannot guard against every possible danger, shall we provide against none? he hoped not. he had hardly expected that the instructing but humiliating lesson was so soon to be forgotten which was taught us in the murder of pierce; the attack on the chesapeake; and the insult offered in the harbor of charleston, which the brave old fellow that commanded the fort in vain endeavored to chastise. it was a rule with mr. c., when acting either in a public or private character, to attempt nothing more than what there existed a prospect of accomplishing. he was, therefore, not in favor of entering into any mad projects on this subject; but for deliberately and resolutely pursuing what he believed to be within the power of government. gentlemen refer to the period of , and we are reminded of the principles maintained by the opposition at that time. he had no doubt of the correctness of that opposition. the naval schemes of that day were premature, not warranted by the resources of the country, and were contemplated for an unnecessary war into which the nation was about to be plunged. he always admired and approved the zeal and ability with which that opposition was conducted by the distinguished gentleman now at the head of the treasury. but the state of things is totally altered. what was folly in may be wisdom now. at that time, we had a revenue only of about six millions. our revenue now, upon a supposition that commerce is restored, is about sixteen millions. the population of the country, too, is greatly increased--nearly doubled--and the wealth of the nation is, perhaps, tripled. while our ability to construct a navy is thus enhanced, the necessity for maritime protection is proportionately augmented. independent of the extension of our commerce, since the year , we have had an addition of more than five hundred miles to our coast, from the bay of perdido to the mouth of the sabine--a weak and defenceless accession, requiring, more than any other part of our maritime frontier, the protecting arm of government. friday, january . _naval establishment._ the blank in the section for providing a dock yard, was filled with one hundred thousand dollars. mr. rhea moved so to amend the bill as to fix the dock yard in the navy-yard at washington city; but this motion was negatived by a large majority. on motion of mr. cheves, the words "central and," were struck out, so as to leave the site of the dock yard to be determined by the executive. the committee having gone through the bill, rose and reported it to the house with the amendments. the house took up the bill, and on the question of filling up the blank for repairing the vessels on hand with "four hundred and eighty thousand dollars," it was carried--yeas , nays . the question was next put upon agreeing to the report of the committee to strike out the second section of the bill, which contemplated the building of new frigates; when mr. williams rose and spoke at considerable length. he said the time was very inauspicious for commencing an undertaking of such magnitude as the building a navy, which could be of no use in the approaching contest. he doubted the policy of engaging in the business at all; for navies, he said, had deceived the hopes of every country which had relied upon them; that we could never expect to be able to meet great britain on the ocean; that we had fought through the revolution without a navy; for in that contest, a single privateer had done more than the few ships of war which were in possession of the old congress; that except we are able to build and equip a navy equal to meet the british at sea, we were better without one, as our ships would probably fall a prey to their superior force; that his greatest objection against a navy was, that it must be kept up in time of peace as well as in war; that when the gentlemen spoke of a navy as cheaper than an army, they could not mean to say that if we had a navy the army could be dispensed with--they could not, for instance, take possession of canada by a navy; that the building of a navy would burden the people with oppressive taxes; that such an establishment would serve only to increase executive patronage; that with respect to commerce, the people were willing to give it all the protection in their power, but they could not provide a navy for that purpose. saturday january . _naval establishment._ mr. quincy.--mr. speaker, i rise to address you, on this occasion, with no affected diffidence, and with many doubts concerning the expediency of taking any part in this debate. on the one hand, the subject has been discussed with a zeal, industry, and talent, which leave but little scope for novelty, either in topic or illustration. on the other hand, arguments from this side of the house, in favor of this question, are received with so natural a jealousy, that i know not whether more may not be lost than gained by so unpropitious a support. indeed, sir, if this subject had been discussed on narrow or temporary or party principles, i should have been silent. on such ground, i could not condescend to debate--i could not hope to influence. but, the scale of discussion has been enlarged and liberal--relative rather to the general system, than to the particular exigency. in almost every respect, it has been honorable to the house, and auspicious to the prospects of the nation. in such a state of feeling and sentiment, i could not refrain from indulging the hope that suggestions, even from so favorite a quarter, would be received with candor--perhaps with attention. and, when i consider the deep interest which the state from which i have the honor to be a representative has, according to my apprehension, in the event, i cannot permit the opportunity entirely to pass, without bringing my small tribute of reflection to the general stock of the house. the object i shall chiefly attempt to enforce, is, the necessity and duty of a systematic protection of our maritime rights, by maritime means. i would call the thoughtful and intelligent men of this house and nation to the contemplation of the essential connection between a naval force, proportionate to the circumstances of our seacoast, the extent of our commerce, and the inherent enterprise of our people; i say, sir, i would call them to the contemplation of the essential connection between such a naval force and the safety, prosperity, and existence, of our union. in the course of my observations, and as a subsidiary argument, i shall also attempt to show the connection between the adoption of the principle of a systematic maintenance of our maritime rights, by maritime means, and relief from our present national embarrassments. i confess to you, mr. speaker, i never can look--indeed, in my opinion, no american statesman ought ever to look--on any question touching the vital interests of this nation, or of any of its component parts, without keeping at all times in distinct view the nature of our political association, and the character of the independent sovereignties which compose it. among states, the only sure and permanent bond of union is _interest_. and the vital interests of states, although they may be sometimes obscured, can never, for a very long time, be misapprehended. the natural protection which the essential interests of the great component parts of our political association require will be sooner or later understood by the states concerned in those interests. if a protection, upon system, be not provided, it is impossible that discontent should not result. and need i tell statesmen, that, when great local discontent is combined in those sections with great physical power, and with acknowledged portions of sovereignty, the inbred ties of nature will be too strong for the artificial ties of parchment compact. hence it results that the essential interests of the great component parts of our association ought to be the polar lights of all our statesmen--by them they should guide their course. according to the bearings and variations of those lights, should the statesmen of such a country adjust their policy--always bearing in mind two assurances, as fundamental principles of action, which the nature of things teaches, that, although temporary circumstances--party spirit, local rivalries, personal jealousies, suggestions of subordinate interests--may weaken, or even destroy, for a time, the influence of the leading and permanent interests of any great section of the country, yet those interests must ultimately and necessarily predominate, and swallow up all these local, and temporary, and personal, and subordinate considerations; in other words, the minor interests will soon begin to realize the essential connection which exists between their prosperity and the prosperity of those great interests which, in such sections of the country, nature has made predominant; and that no political connection among free states can be lasting, or ought to be, which systematically oppresses, or systematically refuses to protect, the vital interests of any of the sovereignties which compose it. i have recurred to these general considerations, to introduce and elucidate this principle, which is the basis of my argument, that, as it is the incumbent duty of every nation to protect its essential interests, so it is the most impressive and critical duty of a nation, composed of a voluntary association of vast, powerful, and independent states, to protect the essential interests of all its great component parts. and i add, that this protection must not be formal or fictitious, but that it must be proportionate to the greatness of those interests, and of a nature to give content to the states concerned in their protection. in reference to this principle, the course of my reflections will be guided by two general inquiries--the nature of the interest to be protected, and the nature of the protection to be extended. in pursuing these inquiries, i shall touch very slightly, if at all, on the abstract duty of protection, which is the very end of all political associations, and, without the attainment of which, they are burdens and no blessings. but i shall keep it mainly in my purpose to establish the connection between a naval force and commercial prosperity; and to show the nature of the necessity, and the degree of our capacity, to give to our maritime rights a maritime protection. in contemplating the nature of the interest to be protected, three prominent features strike the eye, and direct the course of reflection, viz: its locality, its greatness, and its permanency. the locality of any great interest, in an association of states such as compose this union, will be a circumstance of primary importance, in the estimation of every wise statesman. when a great interest is equally diffused over the whole mass, it may be neglected or oppressed or even abandoned, with less hazard of internal dissension. the equality of the pressure lightens the burden. the common nature of the interest removes the causes of jealousy. a concern equally affecting the happiness of every part of the nation, it is natural to suppose, is equally dear to all, and equally understood by all. hence results acquiescence in any artificial or political embarrassment of it. sectional fears and suspicions, in such case, have no food for support, and no stimulant for activity. but it is far otherwise when a great interest is, from its nature, either wholly, or in a very great proportion, local. in relation to such a local interest, it is impossible that jealousies and suspicions should not arise, whenever it is obstructed by any artificial or political embarrassment; and it is also impossible that they should not be, in a greater or less degree, just. it is true, of the wisest and the best and the most thoughtful of our species, that they are so constituted as not deeply to realize the importance of interests which affect them not at all, or very remotely. every local circle of states, as well as of individuals, has a set of interests, in the prosperity of which, the happiness of the section to which they belong is identified; in relation to which interests, the hopes and the fears, the reasonings and the schemes, of the inhabitants of such sections are necessarily fashioned and conducted. it is morally impossible that those concerned in such sectional interests, should not look with some degree of jealousy on schemes adopted in relation to those interests, and prosecuted by men, a majority of whom have a very remote or very small stake in them. and this jealousy must rise to an extreme height, when the course of measures adopted, whether they have relation to the management or the protection of such interests, wholly contravene the opinions and the practical experience of the persons immediately concerned in them. this course of reflection has a tendency to illustrate this idea--that, as in every political association it is of primary importance that the great interests of each local section should be skilfully and honestly managed and protected, so, in selecting the mode and means of management and protection, an especial regard should be had to the content and rational satisfaction of those most deeply concerned in such sectional interests. theories and speculations of the closet, however abundant in a show of wisdom, are never to be admitted to take the place of those principles of conduct in which experience has shown the prosperity and safety of such interests to consist. practical knowledge, and that sagacity which results from long attention to great interests, never fail to inspire a just self-confidence in relation to those interests--a confidence not to be browbeaten by authority, nor circumvented by any general reasoning. and, in a national point of view, it is scarcely of more importance that the course adopted should be wise, than that content and rational satisfaction should be given. on this topic of locality, i shall confine myself to one or two very plain statements. it seems sufficient to observe, that commerce is, from the nature of things, the leading interest of more than one-half, and that it is the predominant interest of more than one-third, of the people of the united states. the states north of the potomac contain nearly four millions of souls; and surely it needs no proof to convince the most casual observer, that the proportion which the commercial interest bears to the other interests of that great section of the union, is such as entitles it to the denomination of _leading interest_. the states north of the hudson contain nearly two and a half millions of souls; and surely there is as little need of proof to show that the proportion the commercial interest bears to the other interests of that northern section of the union, is such as entitles it there to the denomination of _predominating interest_. in all the country between the potomac and the hudson the interest of commerce is so great, in proportion to the other interests, that its embarrassment clogs and weakens the energy of every other description of industry. yet, the agricultural and manufacturing interests of this section are of a nature and a magnitude, both in respect of the staples of the one and the objects of the other, as to render them, in a very considerable degree, independent of the commercial. and, although they feel the effect of the obstruction of commerce, the feeling may be borne for a long time, without much individual suffering, or any general distress. but, in the country north of the hudson, the proportion and connection of these great interests are different. both agriculture and manufactures have there grown up in more intimate relation to commerce. the industry of that section has its shape and energy from commercial prosperity. to the construction, the supply, and the support of navigation, its manufactures have a direct or indirect reference; and it is not very different with its agriculture. a country divided into small farms, among a population great compared with its extent, requires quick circulation and easy processes in the exchange of its commodities. this can only be obtained by an active and prosperous commerce. but, perhaps, the greatness of this interest, and our pecuniary ability to protect it, may be made more strikingly apparent by a comparison of our commerce with that of britain, in the single particular of export. i state, then, as a fact, of which any man may satisfy himself by a reference to mcpherson's annals of commerce, where the tables of british export may be found, that, taking the nine years prior to the war of our revolution--from to inclusive--the total average export of great britain was £ , , sterling; equal to $ , , --an amount less, by $ , , , than the present total average export of the united states. and again, taking the nine years beginning with , and ending with , inclusive, the total annual average export of great britain was £ , , sterling--equal to $ , , --which is less, by $ , , , than the total export of the united states in . it is true, that this is the _official value_ of the british export, and that the _real value_ is somewhat higher--perhaps thirty per cent. this circumstance, although it in a degree diminishes the approximation of the american to the british commerce, in point of amount does not materially affect the argument. upon the basis of her commerce, great britain maintains a maritime force of or , vessels of war. and will it be seriously contended, that, upon the basis of a commerce like ours, thus treading upon the heels of british greatness, we are absolutely without the ability of maintaining the security of our seaboard, the safety of our cities, and the unobstructed course of our coasting trade? by recurring to the permanency of this interest, the folly and madness of this negligence and misplaced meanness--for it does not deserve the name of economy--will be still more distinctly exhibited. if this commerce were the mushroom growth of a night--if it had its vigor from the temporary excitement and the accumulated nutriment which warring elements in europe had swept from the places of their natural deposit--then, indeed, there might be some excuse for a temporizing policy touching so transitory an interest. but commerce in the eastern states is of no foreign growth, and of no adventitious seed; its root is of a fibre which almost two centuries have nourished; and the perpetuity of its destiny is written in legible characters, as well in the nature of the country, as in the disposition of its inhabitants. indeed, sir, look along your whole coast, from passamaquoddy to capes henry and charles, and behold the deep and far-winding creeks and inlets, the noble basins, the projecting headlands, the majestic rivers; and those sounds and bays, which are more like inland seas, than any thing called by those names in other quarters of the globe! can any man do this, and not realize that the destiny of the people inhabiting such a country is essentially maritime? can any man do this, without being impressed by the conviction, that, although the poor projects of politicians may embarrass, for a time, the dispositions growing out of the condition of such a country, yet that nature will be too strong for cobweb regulations, and will vindicate her rights with certain effect--perhaps with awful perils? no nation ever did or ever ought to resist such allurements and invitations to a particular mode of industry. the purposes of providence relative to the destination of men are to be gathered from the circumstances in which his beneficence has placed them; and to refuse to make use of the means of prosperity which his goodness has put into our hands, what is it but spurning at his bounty, and rejecting the blessings which his infinite wisdom has designated for us, by the very nature of his allotments? the employments of industry, connected with navigation and commercial enterprise, are precious to the people of that quarter of the country, by ancient prejudice, not less than recent profit. the occupation is rendered dear and venerable, by all the cherished associations of our infancy, and all the sage and prudential maxims of our ancestors. and, as to the lessons of encouragement derived from recent experience, what nation, within a similar period, ever received so many that were sweet and salutary? what nation, in so short a time, ever before ascended to such a height of commercial greatness? having concluded what i intended to suggest, in relation to the nature of the interest to be protected, i proceed to consider the nature of the protection which it is our duty to extend. and here, mr. speaker, i am necessitated to make an observation which is so simple and so obvious, that were it not for the arguments urged against the principle of maritime protection, i should have deemed the mere mention of it to require an apology. the remark is this: that rights, in their nature local, can only be maintained where they exist, and not where they do not exist. if you had a field to defend in georgia, it would be very strange to put up a fence in massachusetts. and yet, how does this differ from invading canada, for the purpose of defending our maritime rights? i beg not to be understood, mr. speaker, by this remark, as intending to chill the ardor for the canada expedition. it is very true, that, to possess ourselves of the canadas, and nova scotia, and their dependencies, it would cost these united states, at the least estimate, $ , , ; and that great britain's national pride, and her pledge of protection to the people of that country, being put out of the question, she would sell you the whole territory for half the money. i make no objection, however, on this account. on the contrary, for the purposes of the present argument, i may admit that pecuniary calculation ought to be put out of the field, when spirit is to be shown, or honor vindicated. i only design to inquire how our maritime rights are protected by such invasion. suppose that in every land-project you are successful--suppose both the canadas, quebec, halifax, every thing to the north pole, yours by fair conquest--are your rights on the ocean, therefore, secure? does your flag float afterwards in honor? are your seamen safe from impressment? is your course along the highway of nations unobstructed? no one pretends it. no one has or can show, by any logical deduction, or any detail of facts, that the loss of those countries would so compress great britain as to induce her to abandon for one hour any of her maritime pretensions. what then results? why, sir--what is palpable as the day--that maritime rights are only to be maintained by maritime means. this species of protection must be given, or all clamor about maritime rights will be understood, by the people interested in them, to be hollow or false; or (what is worse) an intention to co-operate with the enemies of our commerce in a still further embarrassment of it. in considering this subject of maritime protection, i shall recur to the nature and degree of it, and to our capacity to extend it. and there we are always met, at the very threshold, with this objection: "a naval force requires much time to get it into readiness, and the exigency will be past before the preparation can be completed." this want of foresight in times past, is made an apology for want of foresight in the time present. we were unwise in the beginning, and unwise we resolve to continue until the end of the chapter. we refuse to do any thing until the moment of exigency, and then it is too late. thus our improvidence is made sponsor for our disinclination. but what is the law of nature and the dictate of wisdom, on this subject? the casualties of life, the accidents to which man is exposed, are the modes established by providence for his instruction. this is the law of our nature. hence it is that adversity is said to keep a school for certain people who will learn in no other. hence, too, the poet likens it to "a toad, ugly and venomous, which bears a precious jewel in his head." and, in another place, but with the same general relation, "out of this thorn danger, we pluck the flower safety." this law is just as relative to nations, as it is to individuals. for, notwithstanding all the vaunting of statesmen, their whole business is to apply an enlarged common sense to the affairs intrusted to their management. touching the nature and degree of that maritime protection, which it may be wise in this nation to extend to its maritime interests, it seems to me that our exertions should rather be excited than graduated, by the present exigency; that our duty is to inquire, upon a general scale, what our commercial citizens have, in this respect, a right to claim; and what is the unquestionable obligation of a commercial nation, to so great a class of its interests. for this purpose, my observations will have reference rather to the principles of the system, than to the provisions of the bill now under debate. undoubtedly, an appropriation for the building of ten, or any other additional number of frigates, would be so distinct a manifestation of the intention of the national legislature to extend to commerce its natural protection, as in itself to outweigh any theoretic preference for a maritime force of higher character. i cannot, therefore, but cordially support an appropriation for a species of protection so important and desirable. yet in an argument, having relation to the system, rather than to the occasion, i trust i shall have the indulgence of the house, if my course of reflections should take a wider range than the propositions on the table, and embrace, within the scope of remark, the general principles by which the nature and degree of systematical naval protection should in my judgment be regulated. touching that branch of interest which is most precious to commercial men, it is impossible that there can be any mistake. for however dear the interests of property or of life, exposed upon the ocean, may be to their owners or their friends; yet the safety of our altars and of our firesides, of our cities and of our seaboard, must, from the nature of things, be entwined into the affections by ties incomparably more strong and tender. and it happens that both national pride and honor are peculiarly identified with the support of these primary objects of commercial interest. with respect to the nature and extent of this naval force, some difference of opinion may arise, according to the view taken of the primary objects of protection. for myself, i consider that those objects are first to be protected, in the safety of which the national character and happiness are most deeply interested. and these are chiefly concerned, beyond all question, in the preservation of our maritime settlements from pillage and our coast from violence. for this purpose it is requisite that there should be a ship of war for the harbor of every great city of the united states, equal, in point of force, to the usual grade of ships-of-the-line of the maritime belligerents. these ships might be so instructed as to act singly or together, as circumstances might require. my reason for the selection of this species of force is, that it puts every city and great harbor of the united states in a state of security from the insults, and the inhabitants of your seacoast from the depredation, of any single ship of war of any nation. to these should be added a number of frigates and smaller vessels of war. by such means our coasting trade might be protected, the mouths of our harbors secured (in particular that of the mississippi) from the buccaneers of the west indies, and, hereafter perhaps, from those of south america. a system of protection, graduated upon a scale so conformable to the nature of the country, and to the greatness of the commercial interest, would tend to quiet that spirit of jealousy which so naturally and so justly begins to spring up among the states. those interested in commerce would care little what local influences predominated, or how the ball of power vibrated among our factions, provided an efficient protection of their essential interests, upon systematic principles, was not only secured by the letter of the constitution, but assured by a spirit pervading every description of their rulers. but it is said that "we have not capacity to maintain such a naval force." is it want of pecuniary or want of physical capacity? in relation to our pecuniary capacity, i will not condescend to add any proof to that plain statement already exhibited, showing that we have an annual commercial exposure, equal to six hundred millions of dollars, and that two-thirds of one per cent. upon this amount of value, or four millions of dollars, is more than is necessary, if annually and systematically appropriated, for this great object; so anxiously and rightfully desired by your seaboard, and so essential to the honor and obligations of the nation. i will only make a single other statement, by way of illustrating the smallness of the annual appropriations necessary for the attainment of this important purpose. the annual appropriation of one-sixth of one per cent. on the amount of the value of the whole annual commercial exposure, (one million of dollars,) is sufficient to build, in two years, six seventy-four gun ships; and taking the average expense in peace and war, the annual appropriation of the same sum is sufficient to maintain them afterwards, in a condition for efficient service. this objection of pecuniary inability may be believed in the interior country, where the greatness of the commercial property and all the tender obligations connected with its preservation, are not realized. but, in the cities and in the commercial states, the extent of the national resources is more truly estimated. they know the magnitude of the interests at stake and their essential claim to protection. why, sir, were we seriously to urge this objection of pecuniary incapacity to the commercial men of massachusetts, they would laugh us to scorn. let me state a single fact. in the year , the state, then the colony of massachusetts bay, included a population of , souls, and yet, in that infant state of the country, it owned a fleet consisting of three ships, one of which carried twenty guns, three snows, one brig, and three sloops; being an aggregate of ten vessels of war. these partook of the dangers, and shared in the glory, of that expedition which terminated with the surrender of louisburg. comparing the population, the extent of territory, the capital, and all the other resources of this great nation, with the narrow means of the colony of massachusetts at that period of its history, it is not extravagant to assert that the fleet it then possessed, in proportion to its pecuniary resources, was greater than would be, in proportion to the resources of the united states, a fleet of fifty sail-of-the-line and one hundred frigates. the general effect of the policy i advocate, is to produce confidence at home and respect abroad. these are twin shoots from the same stock, and never fail to flourish or fade together. confidence is a plant of no mushroom growth and of no artificial texture. it springs only from sage counsels and generous endeavors. the protection you extend must be efficient and suited to the nature of the object you profess to maintain. if it be neither adequate nor appropriate, your wisdom may be doubted, your motives may be distrusted, but in vain you expect confidence. the inhabitants of the seaboard will inquire of their own senses and not of your logic, concerning the reality of their protection. as to respect abroad, what course can be more certain to insure it? what object more honorable, what more dignified than to behold a great nation pursuing wise ends by appropriate means; rising to adopt a series of systematic exertions, suited to her power, and adequate to her purposes? what object more consolatory to the friends--what more paralyzing to the enemies of our union--than to behold the natural jealousies and rivalries, which are the acknowledged dangers of our political condition, subsiding or sacrificing? what sight more exhilarating than to see this great nation once more walking forth among the nations of the earth, under the protection of no foreign shield? peaceful because powerful--powerful because united in interests, and amalgamated by concentration of those interests in the national affections. but, let the opposite policy prevail; let the essential interests of the great component parts of this union find no protection under the national arm--instead of safety let them realize oppression, and the seeds of discord and dissolution are inevitably sown in a soil the best fitted for their root, and affording the richest nourishment for their expansion. it may be a long time before they ripen. but, sooner or later, they will assuredly burst forth in all their destructive energies. in the intermediate period, what aspect does a union, thus destitute of cement, present? is it that of a nation keen to discern, and strong to resist, violations of its sovereignty? it has rather the appearance of a casual collection of semi-barbarous clans, with the forms of civilization, and with the rude and rending passions of the savage state. in truth, powerful--yet, as to any foreign effect, imbecile--rich, in the goods of fortune, yet wanting that inherent spirit without which a nation is poor indeed; their strength exhausted by struggles for local power; their moral sense debased by low intrigues for personal popularity, or temporary pre-eminence; all their thoughts turned not to the safety of the state, but to the elevation of a chieftain. a people presenting such an aspect, what have they to expect abroad? what but pillage, insult, and scorn? the choice is before us. persist in refusing efficient maritime protection; persist in the system of commercial restrictions; what now is, perhaps, anticipation, will hereafter be history. mr. fisk said that, when this subject was first presented to the house, he felt inclined to vote for a small increase of the naval establishment; but it now appears that, what is asked for is considered only as laying a foundation for a great system--a system which, he feared, if carried into execution, might change the government. mr. f. contended that the navy never had, and never could protect our commerce. like standing armies, he considered navies as dangerous to liberty. as to the constitutional provision, with respect to a navy, it is nothing more than a mere grant of power, which congress is at liberty to use or not, as they may deem it necessary or expedient. though he had listened with candor to all the arguments which had been used in favor of an increase of this establishment at the present time, he was far from being convinced that such an increase, at present, is either necessary or expedient. it appeared to him that every nation which has embarked, to any extent, in navy establishments, has been eventually crushed by them. whether you go back to ancient, or look upon modern europe, you will find navies have not afforded that protection which gentlemen are desirous of persuading the house they are capable of affording. has the navy of russia protected her commerce? there are in the russian dominions from twenty-five to thirty millions of people; but, by every account we have of them, their situation is not very enviable; nor have they any great degree of commerce to protect. where are the navies of sweden and denmark? the latter, it is well known, were swept away and destroyed by the british fleet; and the fleet of sweden serves only to keep the country in poverty to maintain it. a navy looks pretty well in theory; but look into the experience of nations, and it will be found to have been the bane of every country which has had any thing to do with it. we should want wisdom, therefore, to pursue a system which has proved so ruinous to others. with respect to great britain herself, it had been said that her navy had been the basis of her wealth and prosperity. mr. f. said he did not envy the situation of that country. the glory and honor which such nations are in the habit of acquiring, prove a curse to them in the end by enslaving them with expense. as to the protection and encouragement of commerce, he believed commerce would always flourish best when left to itself unshackled by regulations. it will then be carried to every part of the globe. in the course of the debate, it had been said that the exports of great britain, in , were not greater than ours before our commerce was restricted, though that nation had possessed a navy which had triumphed on the ocean for half a century. how did this happen? it was owing, said mr. f., to the freedom of our commerce. the gentleman from massachusetts (mr. quincy) had spoken of the naval force formerly possessed by massachusetts. but, what security did those ships afford? they were of no use, as he believed; they were nothing but a heavy expense to the state; and he believed the merchants had found their commerce in a much better state since, than it was when they were in being. gentlemen speak of the embarrassments of our commerce, as if they were owing to our not having a navy; but, if they will look around, they will find that those countries which have navies have not escaped; our embarrassments have arisen from the wrongs committed against us by other nations, which we had no power of preventing. it had been shown that the navy establishment proposed could not be supported but by an expense which would prove ruinous to this country. rather than incur this expense, he was willing to dispense with the honor supposed to be attached to such an establishment. mr. f. was opposed to this system, too, because it could not be supported without having recourse to a force similar to impressment to obtain a number of seamen sufficient to man such a fleet. he was anxious to protect every part of the union; but he could not consent to support any scheme so pregnant with mischief to the country, as he considered this large navy establishment to be. the question on agreeing to strike out the section for building the frigates was carried--yeas , nays . the next question was, on agreeing with the committee of the whole to fill the blank for providing ship timber and other imperishable materials, with the words two hundred thousand dollars, which was carried--yeas , nays . another question was on agreeing with the committee of the whole to make the above appropriation for three years, viz: for the years , , and . this motion was carried--yeas , nays . the next question was on agreeing with the committee of the whole to appropriate one hundred thousand dollars for providing a dock yard. mr. rhea moved to strike out the section; but this motion being decided to be out of order, mr. d. r. williams spoke against the propriety of appropriating money, without estimate, for an object not wanted until we went about building seventy-fours. the house adjourned, on motion of mr. smilie, without taking the question. tuesday, january . _naval establishment._ the order of the day, viz: the bill concerning the naval establishment, was then taken up, and the question on agreeing to the report of the committee of the whole, to fill up the blank in the section providing a dock yard, with one hundred thousand dollars, being under consideration, mr. cheves stated the grounds upon which the committee had recommended this provision of the bill, and replied to some remarks of his colleague (mr. williams) made yesterday. mr. rhea then moved to strike out the whole section in relation to the dock yard; which, after some little debate, was carried--yeas , nays . mr. blackledge moved a new section to the bill, providing for the building of four seventy-four gunships. as an inducement to the house to adopt this new section, he stated there were sufficient timber and guns on hand; that the whole expense would not exceed $ , , , and the guns and timber being already provided, an appropriation of $ , only, would be necessary to complete them. the question was negatived--yeas , nays . the bill was then ordered to be engrossed for a third reading to-morrow. monday, march . _divorces in the district._ mr. lewis, from the committee on the district of columbia, made the following report: the committee for the district of columbia, to whom were referred the petitions of jane deakins, praying for a divorce from william deakins, and of david beck, praying for a divorce from ellen, his wife, submit the following report: the only object which the petitioners can have in view is to be enabled, respectively, to enter into new contracts of marriage. were marriages only a _civil institution_, the courts of law would be open to all parties seeking the redress now prayed for, for alleged breach of the marriage contract: but it is something more; it is a _divine ordinance_, and has been pronounced such by the highest legal as well as spiritual authority. the competency of any human tribunal to dissolve its sacred obligations may well be doubted. the justice or policy, under any circumstances, of weakening the matrimonial institution, upon the purity of which depends the very fabric of society itself, may be boldly denied. divorces are not merely the effect of corruption of manners; they are the cause also. they hold out temptations to crime which human infirmity cannot at all times resist. they hold out incentives to that adultery which they are called in to remedy. extreme cases may indeed be put, but they are rare; both parties are generally in fault. shall a very few individuals, who present themselves in a questionable shape, be debarred from contracting a second marriage, or shall the foundations of society be loosened for their special accommodation? shall the heaviest public injury be encountered for the convenience of those, who, for the most part, have shown how little reliance is to be placed upon their virtue or discretion? shall incentives to nuptial infidelity be presented to the great body of society for the personal gratification of a few unfortunate members, diffusing dissatisfaction and discontent, where, but for the deceitful hope of divorce, they had never been known? the frequency of divorces may be taken as an unerring criterion of the depravity of morals. a respectable authority has declared, that "from the reformation to the commencement of the eighteenth century, there had occurred only four instances of parliamentary divorce; but, in the present reign, they had increased to the enormous number of one hundred and ninety-three." it is notorious that the crime which is made the groundwork of the divorce, is frequently committed with the most "deliberate and unblushing indifference," for the purpose of enabling the adulterer and adultress thereafter to intermarry. your committee will not attempt to pursue the subject further. it is calculated to inspire the most solemn reflections. they are opposed to divorce upon principle, as tending to excite family discord; as bearing hard upon the weaker sex, whom it is especially incumbent upon us to protect and to cherish; above all, as weakening the matrimonial tie, upon the sanctity of which depend "all the charities of father, son, and brother." the committee will not enter into the question how far it may be wise or politic to hold forth to the world this district as an asylum for those who wish to obtain absolution from the marriage vow. they will content themselves with submitting the following resolution: _resolved_, that the prayer of the petitioners ought not to be granted. referred to a committee of the whole on monday next. wednesday, march . _constitution of orleans._ the following message was received from the president of the united states: _to the senate and house of representatives of the united states_: at the request of the convention assembled in the territory of orleans on the d day of november last, i transmit to congress the proceedings of that body in pursuance of the act, entitled "an act to enable the people of the territory of orleans to form a constitution and state government, and for the admission of the said state into the union on an equal footing with the original states, and for other purposes." james madison. march , . the message and accompanying documents having been read, a proposition was made to refer them to a select committee; but, before it was decided, the house adjourned. monday, march . _british intrigues._ the following message was received from the president of the united states: _to the senate and house of representatives of the united states_: i lay before congress copies of certain documents which remain in the department of state. they prove that at a recent period, whilst the united states, notwithstanding the wrongs sustained by them, ceased not to observe the laws of peace and neutrality towards great britain, and in the midst of amicable professions and negotiations on the part of the british government, through its public ministers here, a secret agent of that government was employed in certain states, more especially at the seat of government in massachusetts, in fomenting disaffection to the constituted authorities of the nation; and in intrigues with the disaffected for the purpose of bringing about resistance to the laws; and eventually, in concert with a british force, of destroying the union and forming the eastern part thereof into a political connection with great britain. in addition to the effect which the discovery of such a procedure ought to have on the public councils, it will not fail to render more dear to the hearts of all good citizens that happy union of these states, which, under divine providence, is the guarantee of their liberties, their safety, their tranquillity, and their prosperity. james madison. march , . _mr. henry to mr. monroe._ philadelphia, _february , _. sir: much observation and experience have convinced me, that the injuries and insults with which the united states have been so long and so frequently visited, and which cause their present embarrassment, have been owing to an opinion entertained by foreign states, "that in any measure tending to wound their pride, or provoke their hostility, the government of this country could never induce a great majority of its citizens to concur."--and as many of the evils which flow from the influence of this opinion on the policy of foreign nations, may be removed by any act that can produce unanimity among all parties in america, i voluntarily tender to you, sir, such means, as i possess, towards promoting so desirable and important an object; which, if accomplished, cannot fail to extinguish, perhaps forever, those expectations abroad, which may protract indefinitely an accommodation of existing differences, and check the progress of industry and prosperity in this rising empire. i have the honor to transmit herewith the documents and correspondence relating to an important mission in which i was employed by sir james craig, the late governor general of the british provinces in north america, in the winter of the year . the publication of these papers will demonstrate a fact not less valuable than the good already proposed; it will prove that no reliance ought to be placed on the professions of good faith of an administration, which, by a series of disastrous events, has fallen into such hands as a castlereagh, a wellesley, or a liverpool--i should rather say into the hands of the stupid subalterns, to whom the pleasures and the indolence of those ministers have consigned it. in contributing to the good of the united states by an exposition which cannot (i think) fail to solve and melt all division and disunion among its citizens, i flatter myself with the fond expectation that when it is made public in england it will add one great motive to the many that already exist, to induce that nation to withdraw its confidence from men whose political career is a fruitful source of injury and embarrassment in america; of injustice and misery in ireland; of distress and apprehension in england; and contempt every where. in making this communication to you, sir, i deem it incumbent on me distinctly and unequivocally to state that i adopt no party views; that i have not changed any of my political opinions; that i neither seek nor desire the patronage nor countenance of any government nor of any party; and that, in addition to the motives already expressed, i am influenced by a just resentment of the perfidy and dishonor of those who first violated the conditions upon which i received their confidence; who have injured me and disappointed the expectations of my friends, and left me no choice but between a degrading acquiescence in injustice, and a retaliation which is necessary to secure to me my own respect. this wound will be felt where it is merited; and if sir james craig still live, his share of the pain will excite no sympathy among those who are at all in the secret of our connection. i have the honor to be, sir, your most obedient servant, &c. j. henry. to hon. james monroe. _secretary of state, &c._ no. . mr. ryland, secretary to sir james craig, late governor general of the british provinces in north america, to mr. henry. _application to undertake the mission to the united states._ [most secret and confidential.] quebec, _january_ , . my dear sir: the extraordinary state of things at this time in the neighboring states has suggested to the governor-in-chief the idea of employing you on a secret and confidential mission to boston, provided an arrangement can be made to meet the important end in view, without throwing an absolute obstacle in the way of your professional pursuits. the information and political observations heretofore received from you were transmitted by his excellency to the secretary of state, who has expressed his particular approbation of them; and there is no doubt that your able execution of such a mission as i have suggested, would give you a claim, not only on the governor general, but on his majesty's ministers, which might eventually contribute to your advantage. you will have the goodness, therefore, to acquaint me, for his excellency's information, whether you could make it convenient to engage in a mission of this nature, and what pecuniary assistance would be requisite to enable you to undertake it, without injury to yourself. at present, it is only necessary for me to add, that the governor will furnish you with a cipher for carrying on your correspondence; and that, in case the leading party in any of the states wished to open a communication with this government, their views might be communicated through you. i am, with great truth and regard, my dear sir, your most faithful, humble servant, herman w. ryland. john henry, esq. no. . general instructions from sir j. h. craig to mr. henry, respecting his secret mission. _his excellency the governor-in-chief's instructions to mr. henry, of february, ._ [most secret and confidential.] quebec, _february , _. sir: as you have so readily undertaken the service which i have suggested to you, as being likely to be attended with much benefit to the public interests, i am to request, that, with your earliest convenience, you will proceed to boston. the principal object that i recommend to your attention, is, the endeavor to obtain the most accurate information of the true state of affairs in that part of the union, which, from its wealth, the number of its inhabitants, and the known intelligence and ability of several of its leading men, must naturally possess a very considerable influence over, and will indeed probably lead the other eastern states of america in the part that they may take at this important crisis. i shall not pretend to point out to you the mode by which you will be most likely to obtain this important information; your own judgment, and the connections which you may have in the town, must be your guide. i think it, however, necessary to put you on your guard against the sanguineness of an aspiring party. the federalists, as i understand, have at all times discovered a leaning to this disposition; and their being under its particular influence, at this moment, is the more to be expected, from their having no ill-founded ground for their hopes of being nearer the attainment of their object than they have been for some years past. in the general terms which i have made use of in describing the object which i recommend to your attention, it is scarcely necessary that i should observe, i include the state of the public opinion, both with regard to their internal politics, and to the probability of a war with england; the comparative strength of the two great parties into which the country is divided, and the views and designs of that which may ultimately prevail. it has been supposed, that, if the federalists of the eastern states should be successful in obtaining that decided influence which may enable them to direct the public opinion, it is not improbable that, rather than submit to a continuance of the difficulties and distress to which they are now subject, they will exert that influence to bring about a separation from the general union. the earliest information on this subject may be of great consequence to our government, as it may also be, that it should be informed how far, in such an event, they would look up to england for assistance, or be disposed to enter into a connection with us. although it would be highly inexpedient that you should in any manner appear as an avowed agent, yet, if you could contrive to obtain an intimacy with any of the leading party, it may not be improper that you should insinuate, (though with great caution,) that, if they should wish to enter into any communication with our government, through me, you are authorized to receive any such, and will safely transmit it to me. and as it may not be impossible that they should require some document, by which they may be assured that you are really in the situation in which you represent yourself, i enclose a credential to be produced in that view. but, i most particularly enjoin and direct that you do not make any use of this paper, unless a desire to that purpose should be expressed, and unless you see good ground for expecting that the doing so may lead to a more confidential communication than you can otherwise look for. in passing through the state of vermont, you will of course exert your endeavors to procure all the information that the short stay you will probably make there will admit of. you will use your own discretion as to delaying your journey with this view, more or less, in proportion to your prospects of obtaining any information of consequence. i request to hear from you as frequently as possible; and as letters directed to me might excite suspicion, it may be as well that you put them under cover to mr. ----; and as even the addressing letters always to the same person might attract notice, i recommend your sometimes addressing your packet to the chief justice here, or occasionally, though seldom, to mr. ryland, but never with the addition of his official description. i am, sir, your most obedient humble servant, j. h. craig. john henry, esq. _copy of the "credential" given by sir james craig to mr. henry._ the bearer, mr. john henry, is employed by me, and full confidence may be placed in him for any communication which any person may wish to make to me in the business committed to him. in faith of which i have given him this under my hand and seal at quebec, the th day of february, . [copies of the letters from mr. henry to sir james craig, relative to his mission to the united states, in the year .] no. . _answer to the letter of mr. secretary ryland, proposing the mission, &c._ montreal, _jan. , _. sir: i have to acknowledge the favor of your letter of the th instant, written by the desire of his excellency, the governor-in-chief, and hasten to express, through you, to his excellency, my readiness to comply with his wishes. i need not add how very flattering it is to receive from his excellency the assurance of the approbation of his majesty's secretary of state, for the very humble services that i may have rendered. if the nature of the service in which i am to be engaged will require no other disbursements than for my individual expenses, i do not apprehend that these can exceed my private resources. i shall be ready to take my departure before my instructions can be made out. i have the honor to be your most obedient servant, j. h. h. w. ryland, esq., _secretary, &c._ no. . _to his excellency the governor general, &c., in answer to his letter of instructions, &c._ montreal, _feb._ , . sir: i have the honor to acknowledge the receipt of your excellency's letter of instructions, the letter of credence, and the cipher for carrying on my correspondence. i have bestowed much pains upon the cipher, and am, notwithstanding this, deficient in some points which might enable me to understand it clearly. i have compared the example with my own exemplification of the cipher, and find a difference in the results; and as the present moment seems favorable to the interference of his majesty's government in the measures pursued by the federal party in the northern states, and more especially as the assembly of massachusetts is now in session, i think it better to set forward immediately, than wait for any further explanation of the means of carrying on a secret correspondence, which the frequency of safe private conveyances to canada will render almost wholly unnecessary. should it, however, be necessary at any time, i take leave to suggest that the index alone furnishes a very safe and simple mode. in it there is a number for every letter in the alphabet, and particular numbers for particular phrases; so that when i do not find in the index the particular word i want, i can spell it with the figures which stand opposite to the letters. for example, if i want to say that "troops are at albany," i find under the letter t, that no. stands for "troops," and number for "albany;" the intervening words "are at" i supply by figures corresponding with the letters in these words. it will be necessary to provide against accident by addressing the letters to mr. ----, of montreal, with a small mark on the corner of the envelope, which he will understand. when he receives it he will then address the enclosure to your excellency, and send it from montreal by mail. i will be careful not to address your excellency in the body of the letter, nor sign my name to any of them. they will be merely designated by the initials a. b. if this mode should, in any respect, appear exceptionable, your excellency will have the goodness to order a more particular explanation of the card. it would reach me in safety enclosed to ----, boston. i have the honor to be, with profound respect, your excellency's most obedient servant, &c. j. h. no. . burlington, (vt.,) _feb._ , . sir: i have remained here two days in order fully to ascertain the progress of the arrangements heretofore made for organizing an efficient opposition to the general government, as well as to become acquainted with the opinions of the leading people relative to the measures of that party which has the ascendant in the national councils. on the subject of the embargo laws there seems to be but one opinion; namely, that they are unnecessary, oppressive, and unconstitutional. it must also be observed, that the execution of them is so invidious as to attract toward the officers of government the enmity of the people, which is of course transferable to the government itself; so that, in case the state of massachusetts should take any bold step toward resisting the execution of these laws, it is highly probable that it may calculate upon the hearty co-operation of the people of vermont. i learn that the governor of this state is now visiting the towns in the northern section of it, and makes no secret of his determination, as commander-in-chief of the militia, to refuse obedience to any command from the general government which can tend to interrupt the good understanding that prevails between the citizens of vermont and his majesty's subjects in canada. it is further intimated that, in case of a war, he will use his influence to preserve this state neutral, and resist, with all the force he can command, any attempt to make it a party. i need not add that, if these resolutions are carried into effect, the state of vermont may be considered as an ally of great britain. to what extent the sentiments which prevail in this quarter exist in the neighboring states, or even in the eastern section of this state, i am not able to conjecture. i only say with certainty, that the leading men of the federal party act in concert; and therefore infer that a common sentiment pervades the whole body throughout new england. i have seen a letter from a gentleman now in washington to his correspondent in this place; and, as its contents may serve to throw some light on passing events there, i shall send either the original, or a copy, with this despatch. the writer of the letter is a man of character and veracity; and, whether competent or not to form correct opinions himself, is probably within the reach of all the knowledge that can be obtained by the party to which he belongs. it appears by his statement that there is a very formidable majority in congress on the side of the administration; notwithstanding which, there is every reason to hope, that the northern states, in their distinct capacity, will unite, and resist, by force, a war with great britain. in what mode this resistance will first show itself is probably not yet determined upon; and may, in some measure, depend upon the reliance that the leading men may place upon assurances of support from his majesty's representatives in canada; and as i shall be on the spot to tender this whenever the moment arrives that it can be done with effect, there is no doubt that all their measures may be made subordinate to the intentions of his majesty's government. great pains are taken by the men of talents and intelligence to confirm the fears of the common people, as to the concurrence of the southern democrats in the projects of france; and every thing tends to encourage the belief, that the dissolution of the confederacy will be accelerated by the spirit which now actuates both political parties. i am, &c. a. b. no. . windsor, (vt.,) _feb._ , . sir: my last (no. ) was written at burlington, the principal town in the northern part of the state of vermont. i am now at the principal town in the eastern section. the fallacy of men's opinions, when they act under the influence of sensibility, and are strongly excited by those hopes which always animate a rising party, led me to doubt the correctness of the opinions which i received in the northern section of this state; which from its contiguity to canada and necessary intercourse with montreal, has a stronger interest in promoting a good understanding with his majesty's government. therefore, since my departure from burlington, i have sought every favorable occasion of conversing with the democrats on the probable result of the policy adopted by the general government. the difference of opinion is thus expressed. the federal party declare that, in the event of a war, the state of vermont will treat separately for itself with great britain; and support to the utmost the stipulations into which it may enter, without any regard to the policy of the general government. the democrats, on the other hand, assert, that in such a case as that contemplated, the people would be nearly divided into equal numbers; one of which would support the government, if it could be done without involving the people in a civil war, but, at all events, would risk every thing in preference to a coalition with great britain. this difference of opinion is not to be wholly ascribed to the prejudices of party. the people in the eastern section of vermont are not operated upon by the same hopes and fears as those on the borders of the british colony. they are not dependent on montreal for the sale of their produce nor the supply of foreign commodities. they are not apprehensive of any serious dangers or inconvenience from a state of war; and although they admit that the governor, council, and three-fourths of the representation in congress are of the federal party, yet they do not believe that the state would stand alone and resist the national government. they do not, however, deny that, should the state of vermont continue to be represented as it is at present, it would in all probability unite with the neighboring states in any serious plan of resistance to a war which it might seem expedient to adopt. this, i think, is the safer opinion for you to rely on; if, indeed, reliance ought to be placed on any measure depending upon the will of the rabble, which is ever changing, and must ever be marked with ignorance, caprice, and inconsistency. as the crisis approaches, the difficulty of deciding upon a hazardous alternative will increase; and, unfortunately, there is not in vermont any man of commanding talents capable of attracting general confidence, of infusing into the people his own spirit; and, amidst the confusion of conflicting opinions, dangers, and commotion, competent to lead in the path of duty or safety. the governor is an industrious, prudent man, and has more personal influence than any other; but his abilities are not suited to the situation in which a civil war would place him. i am, &c. a. b. no. . amherst, (n. h.,) _feb._ , . sir: a gentleman going direct to canada affords a safe and favorable opportunity of giving you some further account of my progress. i will not make use of the post offices when i can avoid it, because private occasions supersede the necessity of writing in cipher; and the contempt of decency and principles, which forms part of the morals of the subaltern officers of a democracy, would incline them to break a seal with the same indifference that they break their words, when either curiosity or interest is to be indulged. i have not had sufficient time nor evidence to enable me to form any opinion for myself, of the lengths to which the federal party will carry their opposition to the national government in the event of a war; which may be inferred from the result of the election of governors which, within two months, will be made in the states of massachusetts, new hampshire, and rhode island. from all i know, and all i can learn of the general government, i am not apprehensive of an immediate war. the embargo is the favorite measure; and it is probable that other means will be employed to excite england to commit some act of hostility, for the sole purpose of placing the responsibility of war on that country. this i most particularly recommend to the consideration of ministers. the dread of opposition, and of the loss of popularity, will certainly keep the ruling party at washington inactive. they will risk any thing but the loss of power; and they are well aware, that their power would pass away with the first calamity which their measures might bring upon the common people, from whom that power emanates, unless, indeed, they could find a sufficient excuse in the conduct of great britain. this impression cannot be too deeply felt by his majesty's ministers; nor too widely spread throughout the british nation. it will furnish a sure guide in every policy that may be adopted toward the united states. i have the honor to be, &c. a. b. no. . boston, _march , _. sir: i am favored with another opportunity of writing to you by a private conveyance; and think it probable, at this season, that the frequency of these will render it unnecessary to write to you in cipher. it does not yet appear necessary that i should discover to any person the purpose of my visit to boston; nor is it probable that i shall be compelled, for the sake of gaining more knowledge of the arrangements of the federal party in these states, to avow myself as a regular authorized agent of the british government, even to those individuals who would feel equally bound with myself to preserve, with the utmost inscrutability, so important a secret from the public eye. i have sufficient means of information to enable me to judge of the proper period for offering the co-operation of great britain, and opening a correspondence between the governor general of british america, and those individuals who, from the part they take in the opposition to the national government, or the influence they may possess in any new order of things that may grow out of the present differences, should be qualified to act on behalf of the northern states. an apprehension of any such state of things as is pre-supposed by these remarks, begins to subside, since it has appeared, by the conduct of the general government, that it is seriously alarmed at the menacing attitude of the northern states. but, although it is believed that there is no probability of an immediate war, yet no doubts are entertained that mr. madison will fall upon some new expedients to bring about hostilities. what these may be, can only be deduced from what appears to be practicable. a _non-intercourse_ with england and france will probably supersede the embargo; which, by opening with the rest of europe a partial, legitimate commerce, and offering strong temptations to that which is illegal, will expose the vessels to capture, detention, and embarrassment; will justify the present policy, and produce such a degree of irritation and resentment as will enable the government of this country to throw the whole blame and responsibility of war from its own shoulders upon those of the british ministry. if, in this, the party attached to france should calculate with correctness, and the commerce of new england should greatly suffer, the merchants, being injured and discouraged, would not only acquiesce in the restrictive system, but even submit to war. on the other hand, should the small traffic, permitted by a non-intercourse law, be lucrative and uninterrupted, the people would be clamorous for more, and soon compel the government to restore the friendly relations between the two countries. while i offer my opinion upon this subject, i cannot but express a strong hope that, if any terms should be proposed by either government, to which the other might think proper to accede, that a principal motive to the adjustment of differences should be understood to arise from the amicable disposition of the eastern states, particularly of the state of massachusetts. this, as it would increase the popularity of the friends of great britain, could not fail to promote her interests. if it could not be done formally and officially, nor in a correspondence between ministers, still, perhaps, the administration in the parliament of great britain might take that ground, and the suggestion would find its way into the papers both in england and america. it cannot be too frequently repeated, that this country can only be governed and directed by the influence of opinion, as there is nothing permanent in its political institutions; nor are the populace, under any circumstances, to be relied on, when measures become inconvenient and burdensome. i will soon write again, and am yours, &c. a. b. (in cipher.) no. . boston, _march , _. sir: i have now ascertained, with as much accuracy as possible, the course intended to be pursued by the party in massachusetts that is opposed to the measures and politics of the administration of the general government. i have already given a decided opinion that a declaration of war is not to be expected; but, contrary to all reasonable calculation, should the congress possess spirit and independence enough to place their popularity in jeopardy by so strong a measure, the legislature of massachusetts will give the tone to the neighboring states, will declare itself permanent until a new election of members, invite a congress, to be composed of delegates from the federal states, and erect a separate government for their common defence and common interest. this congress would probably begin by abrogating the offensive laws, and adopting a plan for the maintenance of the power and authority thus assumed. they would, by such an act, be in a condition to make or receive proposals from great britain; and i should seize the first moment to open a correspondence with your excellency. scarcely any other aid would be necessary, and perhaps none required, than a few vessels of war from the halifax station, to protect the maritime towns from the little navy which is at the disposal of the national government. what permanent connection between great britain and this section of the republic would grow out of a civil commotion, such as might be expected, no person is prepared to describe; but it seems that a strict alliance must result of necessity. at present the opposition party confine their calculations merely to resistance; and i can assure you that, at this moment, they do not freely entertain the project of withdrawing the eastern states from the union, finding it a very unpopular topic; although a course of events, such as i have already mentioned, would inevitably produce an incurable alienation of the new england from the southern states. the truth is, the common people have so long regarded the constitution of the united states with complacency, that they are now only disposed in this quarter to treat it like a truant mistress, whom they would, for a time, put away on a separate maintenance, but, without further and greater provocation, would not absolutely repudiate. it will soon be known in what situation public affairs are to remain until the meeting of the new congress in may, at which time, also, this legislature will again assemble. the two months that intervene will be a period of much anxiety. in all i have written i have been careful not to make any impression analogous to the enthusiastic confidence entertained by the opposition, nor to the hopes and expectations that animate the friends of an alliance between the northern states and great britain. i have abstracted myself from all the sympathies these are calculated to inspire; because, notwithstanding that i feel the utmost confidence in the integrity of intention of the leading characters in this political drama, i cannot forget that they derive their power from a giddy, inconstant multitude; who, unless in the instance under consideration they form an exception to all general rules and experience, will act inconsistently and absurdly. i am yours, &c. a. b. no. . boston, _march_ , . sir: in my letter no. , i took the liberty to express my opinion of the probable effect of the non-intercourse law, intended to be enacted; and of the mode by which great britain may defeat the real intention of the american government in passing it. but as this sort of impunity recommended might, in its application to every species of commerce that would be carried on, be deemed by great britain a greater evil than war itself, a middle course might easily be adopted, which would deprive france of the benefits resulting from an intercourse with america, without, in any great degree, irritating the maritime states. the high price of all american produce in france furnishes a temptation which mercantile avarice will be unable to resist. the consequence is obvious. but if, instead of condemning the vessels and cargoes which may be arrested in pursuing this prohibited commerce, they should be compelled to go into a british port, and there permitted to sell them, i think the friends of england in these states would not utter a complaint. indeed, i have no doubt that if, in the prosecution of a lawful voyage, the british cruisers should treat the american ships in this manner, their owners would, in the present state of the european markets, think themselves very fortunate, as it would save them the trouble and expense of landing them in a neutral port, and from thence reshipping them to england, now the best market in europe for the produce of this country. the government of the united states would probably complain, and bonaparte become peremptory; but even that would only tend to render the opposition in the northern states more resolute, and accelerate the dissolution of the confederacy. the generosity and justice of great britain would be extolled; and the commercial states exult in the success of individuals over a government inimical to commerce, and to whose measures they can no longer submit with patient acquiescence. the elections are begun; and i presume no vigilance or industry will be remitted to insure the success of the federal party. i am, &c. a. b. p. s. intelligence has reached boston that a non-intercourse law has actually passed, and that martinique has surrendered to british forces. no. . boston, _march_ , . sir: you will perceive, from the accounts that will reach you in the public papers, both from washington and massachusetts, that the federalists of the northern states have succeeded in making the congress believe that, with such an opposition as they would make to the general government, a war must be confined to their own territory, and might be even too much for that government to sustain. the consequence is, that, after all the parade and menaces with which the session commenced, it has been suffered to end without carrying into effect any of the plans of the administration, except the interdiction of commercial intercourse with england and france, an event that was anticipated in my former letters. under what new circumstances the congress will meet in may, will depend on the state elections and the changes that may in the mean time take place in europe. with regard to great britain, she can scarcely mistake her true policy in relation to america. if peace be the first object, every act which can irritate the maritime states ought to be avoided, because the prevailing disposition of these will generally be sufficient to keep the government from hazarding any hostile measures. if a war between america and france be the grand desideratum, something more must be done; an indulgent and conciliatory policy must be adopted, which will leave the democrats without a pretext for hostilities; and bonaparte, whose passions are too hot for delay, will probably compel this government to decide which of the two great belligerents is to be its enemy. to bring about a separation of the states, under distinct and independent governments, is an affair of more uncertainty, and, however desirable, cannot be effected but by a series of acts and a long-continued policy tending to irritate the southern and conciliate the northern people. the former are agricultural, the latter a commercial people. the mode of cherishing and depressing either is too obvious to require illustration. this, i am aware, is an object of much interest in great britain, as it would forever secure the integrity of his majesty's possessions on this continent, and make the two governments, or whatever number the present confederacy might form into, as useful and as much subject to the influence of great britain as her colonies can be rendered. but it is an object only to be attained by slow and circumspect progression, and requires, for its consummation, more attention to the affairs which agitate and excite parties in this country than great britain has yet bestowed upon it. an unpopular war, that is, a war produced by the hatred and prejudice of one party, but against the consent of the other party, can alone produce a sudden separation of any section of this country from the common head. at all events, it cannot be necessary to the preservation of peace that great britain should make any great concession at the present moment, more especially, as the more important changes that occur in europe might render it inconvenient for her to adhere to any stipulations in favor of neutral maritime nations. although the non-intercourse law affords but a very partial relief to the people of this country from the evils of that entire suspension of commerce to which they have reluctantly submitted for some time past, i lament the repeal of the embargo, because it was calculated to accelerate the progress of these states towards a revolution that would have put an end to the only republic that remains to prove that a government founded on political equality can exist in a season of trial and difficulty, or is calculated to insure either security or happiness to a people. i am, &c. a. b. no. . boston, _march_ , . sir: since my letter of the th, nothing has occurred which i thought worthy of a communication. the last weeks of this month, and the first of april, will be occupied in the election of governors and other executive officers in the new england states. the federal candidate in new hampshire is already elected by a majority of about one thousand votes. his competitor was a man of large fortune, extensive connections, and inoffensive manners. these account for the smallness of the majority. in connecticut no change is necessary, and none is to be apprehended. in rhode island it is of no consequence of what party the governor is a member, as he has neither civil nor military power, being merely president of the council. in massachusetts it is certain that the federal candidate will succeed. a few weeks will be sufficient in order to determine the relative strength of parties, and convince mr. madison that a war with great britain is not a measure upon which he dare venture. since the plan of an organized opposition to the projects of mr. jefferson was put into operation, the whole of the new england states have transferred their political power to his political enemies; and the reason that he has still so many adherents is, that those who consider the only true policy of america to consist in the cultivation of peace, have still great confidence that nothing can force him (or his successor, who acts up to his system, or rather is governed by it) to consent to war. they consider all the menaces and "dreadful note of preparation" to be a mere finesse, intended only to obtain concessions from england on cheap terms. from every sort of evidence, i confess i am myself of the same opinion, and am fully persuaded that this farce, which has been acting at washington, will terminate in a full proof of imbecility and spiritless temper of the actors. a war attempted without the concurrence of both parties, and the general consent of the northern states, which constitute the bone and muscle of the country, must commence without hope, and end in disgrace. it should, therefore, be the peculiar care of great britain to foster divisions between the north and south, and, by succeeding in this, she may carry into effect her own projects in europe, with a total disregard of the resentments of the democrats of this country. i am, &c. a. b. no. . boston, _april_ , . sir: i send to mr. r---- a pamphlet entitled "suppressed documents." the notes and comments were written by the gentleman who has written the analysis which i sent by a former conveyance. these works have greatly contributed to excite the fears of the men of talents and property, who now prefer the chance of maintaining their party by open resistance and a final separation, to an alliance with france and a war with england; so that, should the government unexpectedly, and contrary to all reasonable calculation, attempt to involve the country in a measure of that nature, i am convinced (now that the elections have all terminated favorably) that none of the new england states would be a party in it. but, as i have repeatedly written, the general government does not seriously entertain any such desire or intention. had the majority in the new england states continued to approve of the public measures, it is extremely probable that great britain would now have to choose between war and concession. but the aspect of things in this respect is changed, and a war would produce an incurable alienation of the eastern states, and bring the whole country in subordination to the interests of england, whose navy would prescribe and enforce the terms upon which the commercial states should carry, and the agricultural states export, their surplus produce. all this is as well known to the democrats as to the other party; therefore, they will avoid a war, at least until the whole nation is unanimous for it. still, when we consider of what materials the government is formed, it is impossible to speak with any certainty of their measures. the past administration, in every transaction, presents to the mind only a muddy commixture of folly, weakness, and duplicity. the spell by which the nations of europe have been rendered inert and inefficient, when they attempted to shake it off, has stretched its shadows across the atlantic, and made a majority of the people of these states alike blind to duty and to their true interests. i am, &c. a. b. no. . boston, _april_ , . sir: since my letter no. , i have had but little to communicate. i have not yet been able to ascertain, with sufficient accuracy, the relative strength of the two parties in the legislative bodies in new england. in all these states, however, governors have been elected out of the federal party, and even the southern papers indicate an unexpected augmentation of federal members in the next congress. the correspondence between mr. erskine and the secretary of state at washington you will have seen before this can reach you. it has given much satisfaction to the federal party here, because it promises an exemption from the evil most feared, (a war with england,) and justifies their partiality towards great britain, which they maintain was founded upon a full conviction of her justice, and sincere disposition to preserve peace. even the democrats affect to be satisfied with it; because, as they insist, it proves the efficacy of the restrictive system of mr. jefferson. but the great benefit that will probably result from it will be, that bonaparte may be induced to force this country from her neutral position. baffled in his attempts to exclude from the continent the manufactures of great britain, he will most likely confiscate all american property in his dominions and dependencies, and declare war. nothing could more than this contribute to give influence and stability to the british party. the invidious occurrences of the rebellion would be forgotten in the resentment of the people against france, and they would soon be weaned from that attachment to her which is founded on the aid that was rendered to separate from the mother country. while great britain waits for this natural, i might say necessary, result of the negotiation, would it not be extremely inexpedient to conclude a treaty with the american government? every sort of evidence and experience prove that the democrats consider their political ascendency in a great measure dependent on the hostile spirit that they can keep alive towards great britain, and recent events demonstrate that their conduct will be predicated upon that conviction; it is, therefore, not to be expected that they will meet, with corresponding feelings, a sincere disposition on the part of england to adjust all matters in dispute. they are at heart mortified and disappointed to find that great britain has been in advance of the french government, in taking advantage of the provisional clauses of the non-intercourse law; and if they show any spirit at the next session of congress towards france, it will be only because they will find bonaparte deaf to entreaty and insensible of past favors; or that they may think it safer to float with the tide of public feeling, which will set strongly against him unless he keep _pari passu_ with england in a conciliatory policy. i am, &c. a. b. no. . boston, _may_ , . sir: although the recent changes that have occurred quiet all apprehension of war, and, consequently, lessen all hope of a separation of the states, i think it necessary to transmit by the mail of each week a sketch of passing events. on local politics i have nothing to add; and as the parade that is made in the national intelligencer of the sincere disposition of mr. madison to preserve amicable relations with great britain is, in my opinion, calculated to awaken vigilance and distrust, rather than inspire confidence, i shall (having nothing more important to write about) take leave to examine his motives. i am not surprised at his conditional removal of the non-intercourse law, with respect to great britain, because it was made incumbent on him by the act of congress; but the observations made on his friendly disposition towards great britain is a matter of no little astonishment. the whole tenor of his political life directly and unequivocally contradicts them. his speech on the british treaty in ; his attempt to pass a law for the confiscation of "british debts" and british property; his commercial resolutions, grounded apparently on an idea of making america useful as a colony to france; his conduct while secretary of state; all form an assemblage of probabilities tending to convince me, at least, that he does not seriously desire a treaty in which the rights and pretensions of great britain would be fairly recognized. it seems impossible that he should at once divest himself of his habitual animosity, and that pride of opinion which his present situation enables him to indulge; but, above all, that he should deprive his friends and supporters of the benefit of those prejudices which have been carefully fostered in the minds of the common people towards england, and which have so materially contributed to invigorate and augment the democratic party. whatever his real motives may be, it is, in this stage of the affair, harmless enough to inquire into the cause of the apparent change. he probably acts under a conviction that, in the present temper of the eastern states, a war could not fail to produce a dissolution of the union; or he may have profited by the mistakes of his predecessor, and is inclined to seize the present opportunity to prove to the world that he is determined to be the president of a nation, rather than the head of a faction; or he has probably gone thus far to remove the impression on the minds of many that he was under the influence of france, in order that he may, with a better grace, and on more tenable grounds, quarrel with great britain in the progress of negotiating a treaty. whatever his motives may be, i am very certain his party will not support him in any manly and generous policy. weak men are sure to temporize when great events call upon them for decision, and are sluggish and inert at the moment when the worst of evils is in action. this is the character of the democrats in the northern states. of those of the south i know but little. i am, &c. a. b. no. . boston, _may_ , . sir: my last was under date of the th instant. the unexpected change that has taken place in the feelings of political men in this country, in consequence of mr. madison's prompt acceptance of the friendly proposals of great britain, has caused a temporary suspension of the conflict of parties; and they both regard him with equal wonder and distrust. they all ascribe his conduct to various motives, but none believe him to be in earnest. the state of new york has returned to the assembly a majority of federal members. all this proves that an anti-commercial faction cannot rule the northern states. two months ago the state of new york was not ranked among the states that would adopt the policy of that of massachusetts; and any favorable change was extremely problematical. i beg leave to suggest that, in the present state of things in this country, my presence can contribute very little to the interests of great britain. if mr. erskine be sanctioned in all he has conceded, by his majesty's ministers, it is unnecessary for me, as indeed it would be unavailing, to make any attempt to carry into effect the original purposes of my mission. while i think it to be my duty to give this intimation to you, i beg it may be understood that i consider myself entirely at the disposal of his majesty's government. i am, &c. a. b. no. . montreal, _june_ , . sir: i have the honor to inform your excellency that i received, through mr. secretary ryland, your excellency's commands to return to canada; and after the delay incident to this season of the year, in a journey from boston, arrived here yesterday. your excellency will have seen, by the papers of the latest dates from the united states, that a formidable opposition is already organized in congress to the late measures of mr. madison; and it is very evident that if he be sincere in his professions of attachment to great britain, his party will abandon him. sixty-one members have already voted against a resolution to approve of what he has done; and i have no doubt the rest of the democratic party will follow the example as soon as they recover from the astonishment into which his apparent defection has thrown them. the present hopes of the federalists are founded on the probability of a war with france; but, at all events, this party is strong and well organized enough to prevent a war with england. it would be now superfluous to trouble your excellency with an account of the nature and extent of the arrangements made by the federal party to resist any attempt of the government unfavorable to great britain. they were such as do great credit to their ability and principles; and, while a judicious policy is observed by great britain, secure her interests in america from decay. my fear of inducing a false security on the part of his majesty's government in their efficiency and eventual success, may have inclined me to refrain from doing them that justice in my former letters which i willingly take the present occasion to express. i trust your excellency will ascribe the style and manner of my communications, and the frequent ambiguities introduced in them, as arising from the secrecy necessary to be observed, and my consciousness that you understand my meaning, on the most delicate points, without risking a particular explanation. i lament that no occasion commensurate to my wishes has permitted me to prove how much i value the confidence of your excellency, and the approbation already expressed by his majesty's minister. i have the honor to be, &c. j. h. i certify that the foregoing letters are the same referred to in the letter of h. w. ryland, esq., dated may , , relating to the mission in which i was employed by sir james craig, by his letter of instructions, bearing date february , . john henry. _mr. ryland to mr. henry._ quebec, _may_ , . my dear sir: the news we have received this day from the states will, i imagine, soon bring you back to us; and if you arrive at montreal by the middle of june, i shall probably have the pleasure of meeting you there, as i am going up with sir james and a large suite. the last letters received from you are to the th april. the whole are now transcribing, for the purpose of being sent home, where they cannot fail of doing you great credit, and i most certainly hope they may eventually contribute to your permanent advantage. it is not necessary to repeat the assurance that no effort within the compass of my power shall be wanting to this end. i am cruelly out of spirits at the idea of old england truckling to such a debased and accursed government as that of the united states. i am greatly obliged to you for the trouble you have taken in procuring the books, though, if spain fails, i shall scarcely have heart to look into them. i can add no more, but that i am, most heartily and affectionately, yours, h. w. r. j. henry, esq., boston. _mr. ryland to mr. henry._ may , . my dear sir: you must consider the short letter i wrote to you by the last post as altogether unofficial; but i am now to intimate to you, in a more formal manner, our hope of your speedy return, as the object of your journey seems, for the present at least, to be at an end. we have london news, by the way of the river, up to the th of march, which tallies to a day with what we have received by the way of the states. heartily wishing you a safe and speedy journey back to us, i am, my dear sir, most sincerely, yours, h. w. r. have the goodness to bring my books with you, though i shall have little spirit to look into them, unless you bring good news from spain. john henry, esq. _mr. henry to mr. peel._ june , . sir: i take the liberty to enclose to you a memorial addressed to the earl of liverpool, and beg you will have the goodness either to examine the documents in your office, or those in my own possession, touching the extent and legitimacy of my claim. mr. ryland, the secretary of sir j. craig, is now in london, and, from his official knowledge of the transactions and facts alluded to in the memorial, can give any information required on that subject. i have the honor to be, &c. j. h. _memorial of mr. henry to lord liverpool._ the undersigned most respectfully submits the following statement and memorial to the earl of liverpool: long before and during the administration of your lordship's predecessor, the undersigned bestowed much personal attention to the state of parties, and to the political measures in the united states of america. * * * * * soon after the affair of the chesapeake frigate, when his majesty's governor general of british america had reason to believe that the two countries would be involved in a war, and had submitted to his majesty's ministers the arrangements of the english party in the united states for an efficient resistance to the general government, which would probably terminate in a separation of the northern states from the general confederacy, he applied to the undersigned to undertake a mission to boston, where the whole concerns of the opposition were managed. the object of the mission was to promote and encourage the federal party to resist the measures of the general government, to offer assurances of aid and support from his majesty's government of canada, and to open a communication between the leading men engaged in that opposition and the governor general, upon such a footing as circumstances might suggest; and, finally, to render the plans then in contemplation subservient to the views of his majesty's government. the undersigned undertook the mission, which lasted from the month of january to the month of june, inclusive, during which period those public acts and legislative resolutions of the assemblies of massachusetts and connecticut were passed which kept the general government of the united states in check, and deterred it from carrying into execution the measures of hostility with which great britain was menaced. for his services on the occasions herein recited, and the loss of time and expenses incurred, the undersigned neither sought nor received any compensation, but trusted to the known justice and liberality of his majesty's government for the reward of services which could not, he humbly conceives, be estimated in pounds, shillings, and pence. on the patronage and support which was promised in the letter of sir j. craig, under date of the th january, , (wherein he gives an assurance "that the former correspondence and political information transmitted by the undersigned had met with the particular approbation of his majesty's secretary of state; and that his execution of the mission, proposed to be undertaken in that letter, would give him a claim not only on the governor general, but on his majesty's ministers,") the undersigned has relied, and now most respectfully claims, in whatever mode the earl of liverpool may be pleased to adopt. the undersigned most respectfully takes this occasion to state that sir j. craig promised him an employment in canada, worth upwards of one thousand pounds a year, by his letter, herewith transmitted, under date of september , , which he has just learned has, in consequence of his absence, been given to another person. the undersigned abstains from commenting on this transaction, and most respectfully suggests that the appointment of judge advocate general of the province of lower canada, with a salary of five hundred pounds a year, or a consulate in the united states, _sine curia_, would be considered by him as a liberal discharge of any obligation that his majesty's government may entertain in relation to his services. _mr. peel, secretary to lord liverpool, to mr. henry_ downing street, _june_ , . sir: i have not failed to lay before the earl of liverpool the memorial, together with several enclosures, which was delivered to me a few days since by general loft, at your desire. his lordship has directed me to acquaint you that he has referred to the correspondence in this office of the year , and finds two letters from sir james craig, dated th april and th may, transmitting the correspondence that has passed during your residence in the northern states of america, and expressing his confidence in your ability and judgment, but lord liverpool has not discovered any wish on the part of sir james craig that your claims for compensation should be referred to this country, nor indeed is allusion made to any kind of arrangement or agreement that had been made by that officer with you. under these circumstances, and had not sir james craig determined on his immediate return to england, it would have been lord liverpool's wish to have referred your memorial to him, as being better enabled to appreciate the ability and success with which you executed a mission undertaken at his desire. lord liverpool will, however, transmit it to sir james craig's successor in the government, with an assurance that, from the recommendations he has received in your favor, and the opinion he has formed on your correspondence, he is convinced the public service will be benefited by your active employment in a public situation. lord liverpool will also feel himself bound to give the same assurance to the marquis wellesley, if there is any probability that it will advance the success of the application which you have made to his lordship. i am, sir, your most obedient humble servant, robert peel. j. henry, esq., _no. leicester square_. _mr. ryland to mr. henry._ tuesday evening, _july_ , . my dear henry: it gives me real pleasure to find that the apprehension i had formed with respect to the fulfilment of your expectations is likely to prove erroneous. as every thing which passed, relative to your mission, was in writing, i think you will do well by submitting to mr. peel all the original papers. i myself could give no other information relative to the subject, than what they contain, as you and i had no opportunity of any verbal communication respecting it till after your mission terminated, and i never wrote you a letter in the governor's name which had not previously been submitted to his correction. the impression i had received of your character and abilities made me anxious to serve you even before i had the pleasure of a personal acquaintance with you, and the same desire has operated on me ever since; i am, therefore, entitled to hope that any opinion which i may have given you, as to your best mode of obtaining an employment under government, will be received with the same candor that gave rise to it. i think you will do well to persevere, as you propose. i have no doubt that every letter from you, which sir james sent home, will be found in mr. peel's office, as the established practice there is to bind the despatches and enclosures yearly up together. h. w. ryland. john henry, esq., &c. _mr. henry to mr. peel._ , leicester square, london, _september , ._ sir: i have just learned the ultimate decision of my lord wellesley, relative to the appointment which i was desirous to obtain; and find that the subsisting relations between the two countries forbid the creating a new office in the united states, such as i was solicitous to obtain. in this state of things i have not a moment to lose in returning to canada; and have taken my passage in the last and only ship that sails for quebec this season. as i have not time to enter (_de novo_) into explanations with the gentleman who is in your office, and as i have received the assurances from you, in addition to the letter from my lord liverpool, of the th june, that "his lordship would recommend me to the governor of canada for the first vacant situation that i would accept," i beg the favor of you to advise me how i am to get that recommendation without loss of time. i have the honor to be, &c. j. henry. robert peel, esq., &c. _despatch of lord liverpool to sir george prevost._ downing street, _sept. , _. sir: mr. henry, who will have the honor of delivering this letter, is the gentleman who addressed to me the memorial, a copy of which i herewith transmit, and to whom the accompanying letter from mr. peel was written by my direction. in compliance with his request, i now fulfil the assurance which i have given of stating to you my opinion of the ability and judgment which mr. henry has manifested on the occasions mentioned in his memorial, and of the benefit the public service might derive from his active employment in any public situation in which you should think proper to place him. i am, sir, your most obedient, humble servant, liverpool. to sir george prevost, _baronet, &c._ [the following is the report of the secretary of state, communicated to the senate by the message of the th march, .] department of state, _march_ , . the secretary of state, to whom was referred the resolution of the senate of the th instant, has the honor to report: that this department is not in possession of any names of persons in the united states who have, in any way or manner whatever, entered into, or countenanced the project or the views for the execution or attainment of which john henry was, in the year , employed by sir james craig; the said john henry having named no person or persons as being concerned in the said project or views referred to in the documents laid before congress on the th instant. which is respectfully submitted, james monroe. the message and documents having been read, mr. rhea made a motion to print them. mr. pitkin said that he had no objection to the papers being printed, but that he rose to protest against the sentiments attributed in these papers to the federal party, being considered as those of the citizens of the state which he had the honor to represent. he trusted it would not be believed that they had any knowledge of any mission of this kind from canada, or from any other quarter. it was the first time that he had heard that the opposition to the embargo in the states of vermont or massachusetts had any connection with the british government, or with any project of a separation of the union in any manner, much less under the agency of a british spy. so far as he could understand the papers from the first reading, mr. p. said they did not intimate that any disclosure had been made to any individual of the united states by mr. henry of the object of his mission, or that his scheme had been advocated or supported by any one. and i trust no gentleman will take the character of the parties in any section of this country, from a man who it seems has proved a traitor to his own government. so far as the statements made in these papers may be considered as involving the party in concert with the federal party, in any scheme of co-operation with the british government in dividing the union, it is one of the grossest libels that ever was uttered. nor do i feel willing to take the character of the people of this country from the mouth of this man. he does not stop at debasing the character of the people of this country, but he utters a libel against all parties and against the government itself. he states that in the extra session of congress in may, , there were sixty-one votes against mr. madison, in consequence of his arrangement with mr. erskine; when we all know that the vote on the resolution approving of the president's conduct in that affair was no criterion by which to judge. while, therefore, gentlemen will not, as i presume they will not, place any confidence in the statements made by this man against themselves, and against those whom he styles democrats, i trust they will be equally incredulous as to any statements he has made against those he has called federalists, with respect to their co-operation with the british government in dividing the union. more especially as they come from one who, disappointed at not receiving the promised reward from his government, has turned traitor to his employers. mr. bibb said he agreed with the gentleman who just sat down on one point, that a full investigation ought to be had. it was due to the congress, to our connections with great britain, that an inquiry should be made into the transaction now exposed to view; and, in addition to the motion for printing, he should move a reference of the message to the committee of foreign relations. mr. gholson said it was a source of gratification to him, that, so far as the papers communicated by the president could be considered evidence at all, they were certainly highly honorable testimony in favor of the eastern section of the union. an emissary of great talents had been employed by the british in a nefarious scheme to dismember the united states, and to engender treason in the very bosom of our country: and yet, mr. g. said, it does not seem that this spy has been able to connect with himself any citizen of the united states. if he had held correspondence with any persons of distinction, the presumption is their names would have been disclosed in the papers that have been read. mr. g. was happy in cherishing the belief that the liberties of this country would always find a sufficient guarantee against machinations of this sort, in the patriotism of every portion of the union. this communication, for which the house was indebted to the president, was highly interesting and important in one point of view. it demonstrated, as matter of fact, what had heretofore remained only speculation and conjecture, that the british government has long meditated the separation of these states; and what is more, that they have actually attempted the execution of this wicked design, and have endeavored to convert our own citizens into traitors! he would say no more. mr. quincy said he was much obliged to the gentleman last up for the view which he had taken of the subject. it had struck him previously with much force, and he meant to have taken the floor to have expressed it. if ever there had existed in the british government, or any other government, an idea that there was a party in this country who would associate with it to dissolve this union, he thanked god that the project was exposed. if it was true, as these papers stated, that this man had been so employed, he thanked god that the mission had been detected. the administration, in bringing the subject before the house, had done worthily, and the subject ought to be inquired into. what is the fact, admitting all that this person has said to be true? why, that an agent from the british government, under circumstances peculiarly auspicious and suitable to his purpose, goes to the spot which he represents as the hot-bed of opposition, to stir up disunion, and his papers do not contain an intimation that he dared to mention such an idea as that of a dissolution of the union to any individual. no, sir; and i dare to say that he never did mention such a thing to any distinguished individual. as far as i know the sentiments of gentlemen in that quarter, they hold this union dear, and look upon such a connection as is supposed in these papers with as much abhorrence as any man, however attached he may be to the administration of the government. whenever a dismemberment of the union has been talked of, it has been with awe, and with a fear that the present course of public measures would lead to such an event, and not with a view to bring it about. sir, i know that other ideas have been spread over the country for the purpose of serving party views. but here, in this temple of our liberties, let us reason with one another according to the evidence before us. i rejoice that the subject has been brought forward, and that an agent so peculiarly adapted to the business in which he was employed has not. been able to furnish any evidence of even the connivance of any individual at his mission. mr. wright said that such an extraordinary communication as that just received from the president, reflecting so much on various sections and parties of the union, required serious consideration before they consented to publish such gross abuse of every portion of our people. gentlemen should reflect that this very disclosure might be one of the means used by this miscreant to divide this country. if he wished to promote division, how could he better attain his object than by denouncing the people of a particular section? who is this man, and where is he? is an inquiry that ought to be made. i am not one of those who would, without inquiry, take the words of a spy, traitor, and villain, as truth. it might be well to print a sufficient number for the house, but no more until they knew more about it. however gentlemen in the eastern states might have been dissatisfied at particular measures, the embargo law for instance, their opposition to them had arisen from their operation on their particular interests, and not that they had any disposition to sever themselves from the union. this business had been very correctly communicated by the executive to congress; but they ought to act on it with temper, prudence, and coolness. mr. w. protested against considering any such disposition as it attributed to a certain party to exist, particularly in the spot which has been frequently and emphatically styled the cradle of the revolution. he could not feel the same disposition which some appeared to do, to give consequence to this affair. mr. troup did not consider these papers as involving the character of any portion of our people. they appeared to him to be calculated merely to put the people on their guard against foreign emissaries or agents employed for the purpose of effecting a dismemberment of this union. as to the opinions this person expresses of parties, &c., they are merely the individual speculations of this man, and cannot have much weight. but the documents have a most important bearing. they establish the fact that a foreign government, on the eve of hostility with us, has for some time past employed an agent to foment divisions among us; and another fact, which, considered in connection with other circumstances, is of great importance. they show the deep-rooted hostility of this foreign power to our republican government and liberties--a hostility which could stop at nothing short of a dismemberment of the country. after the affair of the wabash, when it was said that the indians had been instigated by the same enemy to hostilities against us, the british minister's choler rose; he denied the whole. he avails himself of suggestions in public prints to deny their statements; to state that so far from a disposition to stir up the indians against us, the contrary was the fact; that, indeed, sir james craig has been intent on diverting indian hostilities. sir, may we not reasonably believe him to have fomented indian hostilities in one part of the country, while in another he was promoting disunion in the body of the people? these, sir, are the only facts disclosed of importance; the only facts which would justify the publication of more than the ordinary number of copies. mr. fisk said that the remarks which had been made by gentlemen, induced him to ask the indulgence of the house, to give some information and make a few observations relative to the subject now under consideration. this mr. henry was an englishman, but had long resided in this country; so long that he had obtained a captaincy in the army raised in the year ; he was a man of gentlemanly deportment, and reputed good moral character; that he (mr. fisk) and his colleague (mr. strong) well remembered when he passed through burlington, in the spring of the year , and that his object was at that time much suspected to have been what he now states; but as a politician, he was thought by the republicans to have been a firm believer in the british maxim, "that the end sanctifies the means;" and the federal party enjoyed the full benefits of his principles and labors while he lived in vermont. sir, gentlemen say that he is a traitor, a spy, and, therefore, what he here relates is not entitled to credit. however dishonorable a transaction like this may be deemed by our government, whose motives and conduct are directed and squared by the principles of morality and justice, yet, i believe, it is not thought so very disgraceful in the british government, as to be beneath her first characters to undertake. sir, was the mission to copenhagen to destroy that city, murder the innocent inhabitants, and to rob the danes of their fleet, a more honorable one than this? certainly not. and yet, sir, the famous mr. jackson, who went on that mission was considered worthy of being a minister to this country, where he was caressed and highly esteemed by some; and performed both missions much to the satisfaction of his master. why, sir, can gentlemen seriously doubt the truth of the facts stated by this mr. henry, when they have it from the highest authority, that the former british minister, mr. erskine, while here, at this very time, was in the same business this henry was sent to perform? in a letter written by that minister to this government, and published by its order, he tells them: "i have endeavored, by the most strict and diligent inquiries into the views and strength of the federal party, to ascertain to what extent they would be willing and able to resist the measures of the party in power, and how far they could carry the opinions of this country along with them in their attempts to remove the embargo, without recurring to hostilities against both great britain and france." and again, he tells them in his letter of the th february, , when speaking of the divisions which then agitated this country, and the opposition made to the laws by the people of the eastern states: "the ultimate consequences of such differences and jealousies, arising between the eastern and southern states, would inevitably tend to a dissolution of the union, which has been for some time talked of, and has of late, as i have heard, been seriously contemplated by many of the leading people in the eastern division." now, sir, when the british minister was on this business, by order of his government, is it extraordinary or incredible that this henry should be sent on the same errand by governor craig? the occurrences of those times place the fact out of doubt. i perfectly recollect that on my return home from this place in march, , i was informed of this henry having passed through the country; and it was then conjectured that he was on the very business which he now states. but, say gentlemen, he libels and calumniates the government! why, sir, he does not more so than has often been done on this floor by a gentleman not now present, or than has been done for years by one description of presses and newspapers in this country. the division of the union is not a new subject. as early as the time the jay treaty agitated this country, i saw two numbers in the "centinel," printed at boston, holding out the idea of a separation of the states. i am very far from believing it was ever the wish of the great body of the federal party, or that they will knowingly join the enemies of this country to effect such a purpose, but that there are some who call themselves federalists, and who in principle and feeling are englishmen, that would do it, i have no doubt. mr. smilie said the character of this man was nothing to us, though it might be to him, and he therefore should not follow the example of gentlemen who had made so free with it. there was one point in which he considered the publication of these documents, which was of real importance; that they exhibited to the american people what sort of a nation we had to deal with. it appeared to him that great britain considered no means dishonorable provided they would accomplish the attainment of her object. with respect to mr. wright's idea, that the publication of the papers would throw an odium on the leading parties in this country, said mr. s., none of those papers said any thing more disrespectful to the parties in this country than those parties had frequently said of each other in the public prints. he never had believed that the mass of the federal party wished a separation of the union; but that there were men in it attached to the british interests, he knew to be true. there was at least enough in these papers to put every man on his guard with respect to the insidious, dishonorable conduct of that government, and he would therefore vote for printing , copies. mr. macon said this was one of those debates which sometimes arose in the house, in which all were on one side of the question. nothing can be more true than that these papers do prove that great britain has not yet ceased her attempts to disturb the peace of this nation. that they were genuine he believed, although they came from a man whom that government had employed. there was nothing new in the manner of communicating them. how was it in the conspiracy of blount and liston? mr. adams communicated the disclosure to congress. i imagine that burr's conspiracy was communicated by some one who was or had been engaged in it. in this case, a man who had been in the service of this government, preferring the british, was, while in canada, engaged by governor craig to go into a part of this country to endeavor to procure a division of the union. mr. m. said he had, four years ago, stated that both great britain and france had agents in this country. had they not had them in other countries? they had; and he cited holland as a particular instance. the only question that presents itself is, is the information useful to us? does it not confirm every man in the belief that while she is making professions of friendship through her minister here, great britain is, in another direction plotting our destruction by her secret agents? it would be happy for us if we had not also french agents here. i never did believe the federal party had any notion of joining great britain; but this nation, favored as it is, has yet not been clear of discord; and to say that there is not a man in the federal or republican parties who would wish a union with great britain or france, would be to say what i do not believe. as to this man, he is just such a one as the british usually employ for these purposes; he is one of their own agents. can england complain of our giving credit to a man with whom her first secretary of state and the governor general of canada correspond? i care nothing about the cause which brings him here, it is an affair between him and them. the question is, has he told the truth? i verily believe he has. i understood enough of the papers, as read, to know that he was the agent of the british government sent here to sow disunion, and that was enough for me. so long as we are governed by interest, mutual wants, or common sense, so long shall we continue united. we are placed in such a situation that we ought to love each other, and we always should, did not our mad passions sometimes run away with us. one part of the nation delights in using the sea; another in agriculture; we supply each other's wants; we ought never to dream of separation. and, sir, when these messengers of hell are sent here shall we not look at them? let us have the papers printed, sir. mr. key made some remarks which were not all distinctly heard by the reporter. he wished that the publication could have been accompanied with some refutation of its contents, as it would go to alarm the people with an idea of the existence of a spirit in one section of this country which he was sure did not exist. he was not only for committing the subject, but for following it up with a full and prompt examination. sure i am, said mr. k., that the people of europe have mistaken the american character. whatever difference of opinion may exist among ourselves, there can be none as to the propriety of supporting the integrity of the union. there can be no doubt that the people of this country, of all descriptions, will rally around the constitution. france had heretofore supposed she possessed a party in this country, but there was not a man of sense in the country who believed it. foreign nations would err in this way, having no correct knowledge of the sentiments of the people. if we were soon to be involved in war, it was proper that no distrust should exist in one part of the community against another; and he therefore regretted that a complete investigation could not be had before the papers were published. mr. milnor said his purpose in rising now was to express the anxious desire he felt that on this question there might not be the least division of sentiment manifested in the house. he should be extremely sorry at any time; above all, at a period of our national progress when it was thought that a change of circumstances of the most important kind was about to take place; that at this time an opinion should be imbibed that any portion of the people of this country were favorable to england. the candor of the gentleman from maryland (mr. wright) redounded to his honor. he was extremely glad to find gentlemen acknowledge, with respect to the party in which he stood enrolled, whatever might be our internal differences, &c., that they could not be suspected of hostility to the union; there could be no idea entertained by sensible men of either party that there was among us any considerable portion of men who are inimically disposed to the union of the states. that these papers proved a dishonorable attempt on the part of the british government mr. m. said he had no doubt. although a strong sensation would probably be produced by the discovery of this circumstance, and it might be perverted much to the injury of the feelings of particular individuals, he hoped the good sense of the community would induce them, while they properly appreciated this attempt of a foreign government, not to be led into rash or injudicious measures. he really wished the affair might be probed to the bottom; and that the british minister having in one case come forward with a disavowal for his government, would say in some shape or other what was the real state of the case now before the house. the motion for printing was unanimously agreed to. mr. bibb moved to amend his motion for reference to the committee of foreign relations, so as to give the committee power to send for persons and papers. mr. troup said that on occasions of this kind great care should be taken lest the house be hurried by a momentary excitement into an act of precipitancy. he had confidence in the discretion of the committee of foreign relations, but the vesting such a power in the committee might be considered as an instruction by the house to proceed under any circumstances to bring mr. henry before them. he had no doubt in his own mind that the communication had been voluntary on the part of mr. henry, but he entertained as little that there may have been certain stipulations and conditions which the executive would feel itself under the strongest obligations of good faith to comply with, and which would exempt the individual making the disclosure from any responsibility of any kind. whatever may be thought of the motives of mr. henry in making the disclosure, or whatever the epithets applied to him in debate, certain it was, mr. henry had done service to the country, and ought to be protected by it. if the committee should, on examination, think proper to proceed to summon persons, or call for papers, the house would not hesitate to vest them with the necessary powers. mr. grundy stated what was his impression as to the course he should incline to pursue as a member of the committee of foreign relations, if these papers should be referred as proposed, to that committee. if any engagements, express or implied, had taken place between the administration and mr. henry, that he should be free from detention, &c., he should not, as one of the committee, consent to violate that engagement. the question on reference was carried unanimously. the question to clothe the committee with compulsory power was carried-- to . thursday, march . _mississippi territory._ the unfinished business of yesterday, the bill for enabling the people of the mississippi territory to form a constitution and state government, being taken up-- mr. poindexter said, that on the general principles of the bill under consideration, he presumed there will be but little difference of opinion. the population of the territory proposed to be erected into an independent state is unquestionably sufficient to authorize the measure agreeably to the present ratio of representation; and from the vast influx of emigration to that section of the union since the last census, i am fully satisfied that it might be demanded as a matter of right under the compact with the state of georgia. but, sir, the wise and magnanimous policy of the general government has uniformly conferred on the respective territories the rights of state sovereignty so soon as their numbers would fairly entitle them to one member in the house of representatives of the united states. ohio was admitted with a population of thirty-seven thousand souls. in the next congress, that state will be entitled to six representatives, besides a very large fraction which was thrown on her by the apportionment made during the present session. all the other new states received into the confederacy since the adoption of the constitution, have grown into importance, and now constitute some of the firmest pillars in the temple of liberty. permit me, mr. chairman, to express a hope, that while gentlemen delight to bask in the sunshine of freedom at home, they will on every occasion manifest their liberality and philanthropy, by extending its cheering rays to the remotest regions of our beloved country. emancipate us from the trammels of colonial vassalage; place us on the high eminence of a free, sovereign, and independent commonwealth; and we shall at all times be ready, with our lives and fortunes, to assert the rights and vindicate the honor of our common country. with respect to the limits recommended by the committee, including all that tract of country of which possession was taken by virtue of the proclamation of the president of the united states, bearing date the th of october, , there appears to exist a diversity of opinion. some gentlemen think it improper to legislate definitely over that country, until the pledge given in the proclamation that it will in our hands be held subject to future negotiation, is redeemed in a manner satisfactory to the executive who made it; and others wish to divide the country between the state of louisiana and the state to be formed of the mississippi territory. to rescue this subject from the first objection, at a very early period of the session, i moved a resolution calling on the president for information on two points: . whether there was any pending negotiation respecting our title. . whether it was the wish of the executive that the legislative authority of congress over the country should be suspended with a view to future negotiation and adjustment in relation to the claim of the united states. to this request the president has returned no answer. but without the aid of those lights which it is in the power of the executive to shed upon the question, we all know that the downfall of the late spanish monarch, and the distracted state of revolution in which spain is involved, renders it impracticable to recognize any legitimate authority with whom a negotiation could be conducted. it is true, several letters have passed between mr. secretary monroe and mr. foster, the british minister, during the recess of congress, relative to our possession of west florida, and the manner of taking it. on this correspondence it is not my intention at present to comment. it is a new proof of the disposition which great britain has always shown to intermeddle in the affairs of other nations, and the language of mr. foster is in the highest degree arrogant and insulting. mr. monroe, in his letter of the th of july, after repelling the insinuations made by the british government as to the motives by which the president was actuated in taking possession of the country, declares "that by this event the united states have acquired no new title to west florida. they wanted none." from this declaration it is evident that no doubt is entertained by the executive as to the validity of our title, and therefore it is unnecessary to suspend for a longer period the admission of that country into the union. mr. poindexter then offered the following amendment: "_and be it further enacted_, that the said state shall consist of all that tract of country contained within the following boundaries, to wit: beginning on the river mississippi, at the point where the southern boundary line of the state of tennessee unites with the same; thence along said line to its junction with the western boundary of the state of georgia; thence along the said boundary to the thirty-first degree of latitude, and along said degree of latitude to a point opposite the river perdido; thence to the junction of said river with the gulf of mexico, including all islands within six leagues of the shore to the junction of pearl river with the lake pontchartrain; and up said river to the st degree of latitude; thence to the river mississippi, and up the same to the beginning." the question on this amendment was taken without debate, and carried. mr. clay moved to add the following proviso, to follow after the section just adopted; which would have the effect to keep that portion of country taken possession of under the president's proclamation, subject to future negotiation: "_provided_, that nothing herein contained shall be so construed as to prevent that portion of the territory comprehended within the said boundary, formerly composing a part of the country known by the name of west florida, being subject to future negotiation on the part of the united states." mr. clay (speaker) said that in offering this amendment to the committee, he confessed he was actuated rather by a disposition to accommodate the views of other gentlemen, than from any difficulty which he felt on the subject himself; for, with respect to our title to west florida, he thought it utterly impossible that any gentleman could examine that question without suffering other considerations to mingle in the investigation, and not be thoroughly convinced that the title was in the united states: and he confessed that were he to consult his own views only, he should not hesitate a moment in making an unqualified annexation of that territory to the states to be formed of the orleans and mississippi territories. but as some gentlemen, adverting to the president's proclamation for taking possession of that country, had supposed that some difficulty might arise under it from such a procedure, in order to quiet these apprehensions, he had submitted this proviso. the right of the general government to destroy the integrity of a state having been questioned, it would be well to guard against any difficulty on that score by a reservation to the general government of the power to negotiate on the subject of this territory. at the same time he made this proposition, mr. c. utterly disclaimed the idea that in any possible state of things ought this country to be ceded away. he considered the possession of west florida as indispensable to the interests and prosperity of the western states, and so far to the integrity of the union; and he should as soon see a part of the state which he represented ceded away as this territory. what, he asked, was the extent of the country in question? in breadth, about twenty miles; in length, about two hundred, binding to that extent our southern frontier. the danger of having provinces of a foreign power on our frontier is too well disclosed by the late communication of the president (concerning henry's mission)--a disclosure which must combine in the execration of the project it developed, every man in the country, and every honest man in every country. suppose the former dynasty of spain to be reinstated on the throne, it could not desire, for honest purposes, the possession of west florida. in proposing the amendment, mr. c. said it was merely his object to make the acts of the legislative body tally with the proclamations of the president. if, therefore, contrary to his firm conviction, it should be determined that we have not the title, he had no idea that even in that state of things the territory would be given up, but that an equivalent should be given for it. mr. c. said he fully approved the boundary established for the new state of mississippi by the section just agreed to, so far as it operated on the florida territory. it gave to the state of louisiana about three-fourths, perhaps four-fifths, of the population of the whole territory--a population homogeneous to the character of the country--american in principle and feeling; and with pleasure he had seen the convention of the orleans territory, in requesting this annexation, display a liberality of sentiment in desiring a further american population, which he trusted would be reciprocated by congress. although the state of louisiana could not be gratified by the annexation of the whole territory, their desires would be gratified to a considerable extent by giving them all that portion of it lying west of pearl river. the acquisition of the valuable settlements on the high lands, and their hardy population, would satisfy all the material wishes of the state. by this addition they would give to the new state of louisiana the entire control of the lakes maurepas and pontchartrain, by which the city of new orleans may be most easily approached; you thus enable the state to take all necessary means to repel invasion. you effect another object, said mr. c. there is not any very great natural connection between the people immediately on the bay of mobile and tombigbee river, and those on the mississippi. if there be any connection, it is an artificial one, resulting from the preponderancy of capital at new orleans, and will be lessened whenever there shall be a commercial capital at mobile. i am therefore anxious to unite the territory east of pearl river, including the bay of mobile, to the mississippi territory, to which it is naturally connected; and, mr. c. said, he had no hesitation in declaring that either pearl river or the pascagoula ought to be the boundary which is to separate the two parts of the country respectively to be attached to the states of louisiana and mississippi--the pearl river, upon the whole, would be the best, as dividing the territory in about equal portions. mr. c. concluded by expressing his satisfaction that this subject had been taken up, and that the amendment proposed by the delegate from mississippi had obtained, which he hoped would finally pass, &c. mr. rhea said that the amendment proposed by the honorable speaker to him appeared strange. i, said mr. r., do firmly believe that the title of the united states to the country west of the perdido river, named west florida, is good and valid to all intents and purposes; and, therefore, i will not vote for a proposition which will evince a doubt relative to the sufficiency of that title. but it is said that the proclamation of the president has declared the same principle that the amendment proposes. that may be, but that is no law; that proclamation is not law, nor is the legislature of the united states bound by it, unless they intend to adopt a principle similar to that used in great britain, where the king and council can issue an edict having the force of law. this principle ought not to be established under the constitution of this nation. but the domineering interference of the british government relative to west florida, if there was no other reason, ought to be cause sufficient to reject this offered amendment; that interference of a government which has no possible right or title to the country in question, will be, in a manner, sanctioned by the offered amendment. on these three points, then, the amendment ought to be rejected: first, that it goes to shake the solidity of the title; second, that it goes to sanction an opinion, that a preceding proclamation of the president of the united states is obligatory on the congress of the united states; and, third, that the amendment, if agreed to, will go to authorize an opinion that the domineering interference of great britain, in respect to the country in question, was right and proper. against these points i will, said mr. r., hold up my hand--and therefore will vote against the offered amendment. mr. mitchill observed, that our minister who negotiated the purchase of louisiana had been repeatedly told by talleyrand, in the course of the negotiation, that the french intended to cede the country of west florida; so that it had been not only purchased, but understood to have been purchased. his certainty of the completeness of our title was such, that he was unwilling to do any act which should recognize the existence of a doubt on the subject, and he was therefore opposed to the proviso. at the same time he had no objection to the amendment just agreed to; he was willing that the people on the tombigbee and alabama rivers should have free access to the ocean, and thus do away all artificial distinctions which had been made by a foreign power whilst the territory had been in its possession. mr. macon was well satisfied with the amendment proposed; for he could not have consented to vote for this bill without the proviso, or something like it. hitherto this government had done every thing it could to preserve peace. the embargo and all the restrictive measures had in view to preserve peace; and peace would always be best maintained by a due regard to public faith. if a territory be incorporated into a state, it was the opinion of mr. m. that neither the president nor senate have a right to give it up. it had never been understood by any party, under our constitution, that under the treaty-making power the president would cede one inch of a state. convenient although the territory is to us, and though we have possession, and it is said no pledge has been given in relation to it, yet it appeared to him that the proclamation held out the idea that we held it until an opportunity was afforded for negotiating on equitable terms. mr. m. said he was willing to acknowledge that he had not examined the title in the same manner as the speaker and the gentleman from new york had done, so as to enable him to pronounce on it with certainty; but the title did not come into the question on the present point. had we, when all the rest of louisiana was surrendered to us, obtained possession of florida? no, we had not. it appeared to have been at least a doubtful question whether we obtained a title to it or not. what had been stated by the gentleman from new york, of talleyrand's declaration to our plenipotentiaries, had not much weight, because a claim was now set up to it not by france but by the spanish government. the proviso under consideration, whilst it could not in any degree invalidate our claim, did away the objections in his mind to the proposed annexation of territory. if the territory was once annexed to the state, without reservation or condition, they might as well hereafter attempt to cede away boston or old plymouth, as that territory. mr. wright spoke against the amendment at considerable length. mr. clay replied; and mr. rhea rejoined: when the question was taken on the proviso, which was adopted without a division. the bill having been reported to the house, and the house having agreed to take up the same, an adjournment took place. friday, march . _mississippi territory._ the house resumed the consideration of the unfinished business, viz: the report of the committee of the whole on the bill for enabling the people of mississippi territory to form a constitution and state government. the amendment changing the boundary of the territory, &c., moved by mr. poindexter, together with mr. clay's proviso, were agreed to without a division. the question on the bill being engrossed for a third reading was decided without debate--yeas , nays , as follows: yeas.--willis alston, jun., william anderson, stevenson archer, david bard, burwell bassett, william w. bibb, robert brown, william a. burwell, william butler, j. c. calhoun, langdon cheves, matthew clay, james cochran, lewis condict, william crawford, roger davis, john dawson, joseph desha, elias earle, william findlay, meshack franklin, thomas gholson, peterson goodwyn, edwin gray, isaiah l. green, felix grundy, bolling hall, obed hall, john a. harper, aylett hawes, jacob hufty, john m. hyneman, joseph kent, abner lacock, joseph lefevre, peter little, william lowndes, aaron lyle, thomas moore, william mccoy, samuel mckee, alexander mckim, arunah metcalf, samuel l. mitchill, jeremiah morrow, hugh nelson, anthony new, thomas newbold, thomas newton, israel pickens, james pleasants, jr., henry m. ridgely, samuel ringgold, jonathan roberts, william rodman, ebenezer sage, ebenezer seaver, samuel shaw, daniel sheffey, richard stanford, william strong, george m. troup, charles turner, jr., robert whitehill, william widgery, thomas wilson, and richard wynn. nays.--ezekiel bacon, john baker, abijah bigelow, harmanus bleecker, adam boyd, james breckenridge, elijah brigham, epaphroditus champion, martin chittenden, john davenport, jr., william ely, james emott, asa fitch, richard jackson, jun., lyman law, joseph lewis, jun., robert le roy livingston, james milnor, jonathan o. mosely, joseph pearson, timothy pitkin, jun., benjamin pond, peter b. porter, josiah quincy, william reed, william m. richardson, thomas sammons, john smilie, george smith, philip stuart, silas stow, lewis b. sturges, samuel taggart, benjamin tallmadge, uri tracy, pierre van cortlandt, jun., laban wheaton, leonard white, and robert wright. the bill was then ordered to be read a third time on monday next. monday, march . _british minister's disclaimer of all knowledge of john henry's asserted mission._ the following message was received from the president of the united states: _to the senate and house of representatives of the united states_: i lay before congress a letter, from the envoy extraordinary and minister plenipotentiary of great britain, to the secretary of state. james madison. march , . washington, _march_ , . the undersigned, his britannic majesty's envoy extraordinary and minister plenipotentiary to the united states, has read in the public papers of this city, with the deepest concern, the message sent by the president of the united states to congress on the th instant, and the documents which accompanied it. in the utter ignorance of the undersigned as to all the circumstances alluded to in those documents, he can only disclaim most solemnly, on his own part, the having had any knowledge whatever of the existence of such a mission, or of such transactions as the communication of mr. henry refers to, and express his conviction, that, from what he knows of those branches of his majesty's government with which he is in the habit of having intercourse, no countenance whatever was given by them to any schemes hostile to the internal tranquillity of the united states. the undersigned, however, cannot but trust that the american government, and the congress of the united states, will take into consideration the character of the individual who has made the communication in question, and will suspend any further judgment on its merits until the circumstances shall have been made known to his majesty's government. the undersigned requests the secretary of state to accept the assurance of his highest consideration. augustus j. foster. the message having been read, was, on motion of mr. newton, referred to the committee on foreign relations, and ordered to be printed. wednesday, march . _state of louisiana._ the house resolved itself into a committee of the whole, on the bill for the admission of the state of louisiana (now orleans territory) into the union, and for extending the laws of the united states to the same. the several blanks in the bill having been filled-- mr. poindexter observed, that it appeared to have been the sense of this house, when the bill for erecting the mississippi territory into a state was under consideration, that the portion of the territory taken possession of under the president's proclamation (known by the name of west florida) which lies west of pearl river, should be added to the state of orleans. the constitution had provided that new territory might be added to the states with their consent. as it was not provided by the constitution which party should first assent, he presumed it was not material; and, as this appeared to be the proper moment for fixing the boundary, he was induced to offer the following amendment to the bill. "_and be it further enacted_, that so soon as the consent of the legislature of said state shall be given to the same, all that tract of country lying within the following boundaries, to wit: beginning at the junction of the iberville, with the river mississippi; thence through the middle of the lakes maurepas and pontchartrain, to the western junction of pearl river, to lake pontchartrain; thence up said river to the thirty-first degree of latitude; thence along said degree of latitude to the river mississippi; thence down the same to the beginning; be, and the same is hereby incorporated in, and made a part of said state, and shall be governed by the constitution and laws thereof, in the same manner as if it had been included within the original boundaries of said state. _provided, nevertheless_, that the title of the united states to said tract of country shall be and remain subject to future negotiation." mr. dawson said this question had been agitated in the select committee, but it had appeared proper to them that this addition of territory should be made the subject of a separate law. if they went so far, they must go farther still into details. he thought it better that the law accepting the constitution should be as simple as possible. mr. clay (speaker) could not view the subject in the same light, he said, as the gentleman from virginia; and although there had been a division of sentiment in the select committee, there certainly were some members of that committee in favor of the motion. but, could gentlemen imagine any difficulty growing out of making this section a part of the present bill, which would not equally arise if it were put in a separate bill? there could be no difficulty in either way; and in propriety, it appeared to him the course now proposed ought to be pursued. they were about to admit a new state into the union. should not the bill, which recognized it, present the whole limits of the state in one view, or would it be better to subject inquirers to the necessity of wading through two or three acts to find out the boundary of a single state? he hoped the motion would prevail. the motion was agreed to, to . mr. clay said he observed there had been no ordinance passed by the convention recognizing the freedom of navigation of the mississippi. he had no idea that under any circumstances, the legislature of the new state would impede the navigation; but the object was one so dear to the people of the western country generally, that he wished to place it beyond the possibility of doubt. the amendment was adopted without a division. mr. johnson said, that as the matter now stood, the population of the florida territory attached to this bill would, although they are to compose a part of the new state, be deprived of a voice in the passage of the first laws, which are always the most important under a new government, and in the choice of senators in congress, which would be attended with the greatest hardship, as the population had been unrepresented for some time past, and complained of various grievances. he, therefore, moved an amendment to the bill, to divide the territory to be annexed to louisiana into two counties, to be called feliciana and baton rouge, each to send one senator and one representative. mr. poindexter wished the people of that country to be represented as much as the gentleman possibly could; but how could congress in one breath say they should form a part of the new state as soon as its consent could be had, and in the next section declare, though by the very terms of the law they are not a part of the state, that they shall be represented in the legislature of the state? mr. clay said he had understood that a memorial was in the city, and would be presented to the house at the first opportunity, from the convention of orleans, praying the annexation of the territory in question to the new state. when that was before them, the committee would be better able to understand how far they could now proceed in sanctioning the representation of that territory in the louisiana legislature. he therefore moved that the committee now rise, report progress, and ask leave to sit again. agreed to, and the committee rose. thursday, march . _disclosures of mr. henry._ mr. porter, from the committee of foreign relations, to whom was referred the message of the president of the united states, transmitting the disclosures of mr. henry, a british secret agent, made the following report: the committee of foreign relations, to whom was referred the president's message, of the th instant, covering copies of certain documents communicated to him by a mr. john henry, beg leave to report, in part, that although they did not deem it necessary or proper to go into an investigation of the authenticity of documents communicated to congress, on the responsibility of a co-ordinate branch of the government, it may, nevertheless, be satisfactory to the house to be informed that the original papers, with the evidences relating to them in possession of the executive, were submitted to their examination, and were such as fully to satisfy the committee of their genuineness. the circumstances under which the disclosures of henry were made to the government, involving considerations of political expediency, have prevented the committee from making those disclosures the basis of any proceeding against him. and, from the careful concealment, on his part, of every circumstance which could lead to the discovery and punishment of any individuals within the united states (should there be any such) who were criminally connected with him, no distinct object was presented to the committee by his communication for the exercise of the power with which they were invested, of sending for persons and papers. on being informed, however, that there was a foreigner in the city of washington, who lately came to this country from europe with henry, and was supposed to be in his confidence, the committee thought proper to send for him. his examination, taken under oath and reduced to writing, they herewith submit to the house. the transaction disclosed by the president's message presents to the mind of the committee conclusive evidence that the british government, at a period of peace, and during the most friendly professions, have been deliberately and perfidiously pursuing measures to divide these states, and to involve our citizens in all the guilt of treason, and the horrors of a civil war. it is not, however, the intention of the committee to dwell upon a proceeding, which, at all times, and among all nations, has been considered as one of the most aggravated character; and which, from the nature of our government, depending on a virtuous union of sentiment, ought to be regarded by us with the deepest abhorrence. [document accompanying the above report.] friday, march .--_count edward de crillon sworn._--this deponent knows mr. henry; he dined with him at mr. wellesley pole's, in september, and afterwards at lord yarmouth's; met with him also at different fashionable clubs; deponent fell in with mr. h. subsequently by accident; deponent had ordered his servants to procure him a passage for america; they met with captain tracy, of the ship new galen, of boston, at the new london coffee house. after agreeing with him on the terms of the passage, captain t. applied to deponent to know if he was ready to embark the next day, as the ship would sail on the following morning; deponent said no; that he should send his servants on board, but should take a post-chaise for portsmouth, and pass over to the isle of wight, where he should wait for the vessel. on the day following he went accordingly to portsmouth, but before his departure he received a letter from captain tracy, couched in the following terms: "sir, you must go to ryde, where you shall find a gentleman called captain henry, waiting for the new galen; i shall send a boat on shore for both of you." deponent went to ryde, but did not find captain h. there; thence he proceeded to cowes, and inquired of the american consul "if the new galen had passed?" fearing that she had sailed without him. the consul informed him that the ship was detained in the downs by head winds; deponent returned to ryde, and remained there three weeks alone before captain h. arrived. captain h. came to him and told him that the ship was badly found, and advised him to go to liverpool and take the packet; deponent refused, having paid his passage and his trunks being on board. captain h. three days after his arrival, fell sick; he kept his bed twenty-two days, during which time he was often delirious, frequently uttering the name of lord liverpool. the deponent having two servants, one of them attended on mr. h. during his illness. he was visited by mr. powell, of philadelphia, a mr. wilkinson, or dickson, of the british army, and a mr. perkins, of boston; he received above two hundred letters from a boston house, [higginsons,] in finsbury square, that had lately stopped payment. he refused to take the letters, giving them to the captain. mr. h. was also visited by a mr. bagholt, who brought him letters from sir james craig. henry refused to receive those letters. he recovered from his sickness. deponent occupying the most agreeable house in the place, henry's physicians asked the favor of an apartment for him until he was ready to embark. after eight weeks' detention, the wind became fair, and the vessel sailed. the day before her departure, mr. bagholt arrived at ryde, with letters from lord liverpool to sir george prevost, and to mr. henry, who, when he saw the seal of the letter addressed to him, said, throwing it on the table, "that is a letter from liverpool; what more does he want of me?" he appeared to be much agitated, and retired to his room. mr. bagholt returned that night to london without taking leave; but the wind coming fair the next morning the ship sailed. mr. edward wyer, and mr. west, both of boston, and a mrs. thompson, of london, were passengers in the ship. henry at first appeared very low spirited, took a cabin to himself, and mostly dined alone. in good weather he employed himself in shooting pistols, at which he was very expert. one dark night, about ten o'clock, the witness was walking on deck much dejected, when henry accosted him--"count crillon," said he, "you have not confidence in me; you are unhappy; confide your sorrows to me." he spoke so kindly that deponent made him in part acquainted with his situation. he replied, "one confidence deserves another; i will now tell you _my_ situation. i have been very ill-treated by the british government. i was born in ireland, of one of the first families in that country, poor, because a younger brother. i went to america with expectations from an uncle, (daniel mccormick, esq., of new york,) who possesses a large fortune, is old and unmarried. french persecution having exiled from that country many of the respectable families of france, i married a lady of that description, who died, and left two daughters without fortune. i applied to the american government, and through the influence of the british minister i was appointed captain of artillery during mr. adams's administration. i had command at portland, and at the fort near boston, and while in commission, i was employed in quelling a meeting or insurrection among the soldiery, and during my continuance in office i gave general satisfaction. but perceiving there was no field for my ambition i purchased an estate in vermont, near the canada line, and there studied law for five years without stirring from home. i detest republican government, and i filled the newspapers with essays against it." saturday, march .--_count c. in continuation._ deponent says that henry told him in the course of his interview, which he mentioned yesterday, that the severity of his strictures in the public prints against republican government attracted the attention of the british government. "sir james craig," continued he, "became desirous of my acquaintance. he invited me to quebec, where i staid some time. hence i went to montreal, where every thing i had to fear, and all i had to hope, was disclosed to me. i went afterwards to boston, where i established my usual residence. i was surrounded by all the people pointed out to me by the agents who were under my orders. i lived at the exchange coffee house, gave large parties, made excursions into the country, and received an order extraordinary from sir james craig to dispose of the fleet at halifax, and of the troops, to further the object of my mission, if required. my devotion to the cause was extreme. i exhausted all my funds. i spent many precious years in the service; and was advised to proceed to london. the government treated me with great kindness. i was received in the highest circles; was complimented with a ticket as member of the _pitt club_, without being balloted for. and when i had spent all my money, and presented my claims for retribution, the government attempted to cheapen my services, [_marchander_,] to beat me down. my claims were to the amount of £ , sterling. i was told, however, that i should be provided for, by a recommendation to sir george prevost, in case i would return to canada, and continue my mission and services as before; and to exercise the same vigilance over the interests of the british government. at the same time, the government appointed a friend of mine, an irish gentleman, attorney general for canada, through my influence." [deponent saw this gentleman at mr. gilbert robertson's in new york.] henry continued: "disappointed in my expectations, i was impatient to proceed to canada to sell my estates and my library, and take my revenge against the british government. i knew that if i went to canada i must deliver up my despatches, and that i should afterwards be put off by the government. i, therefore, determined to retain the documents in my possession, as the instrument of my revenge. determined to extricate myself from my embarrassing connection with the british government, i refused the offer of a passage to halifax in one of their ships of war, and determined to live privately and retired at ryde, and take passage in the first vessel that should sail for the united states. this is the cause of your meeting me at ryde." deponent represents to henry, "that england was his legitimate government; that he would render himself the most odious of all characters by betraying it; that his (the deponent's) government had treated him harshly, and that he then labored under its displeasure, but no consideration should induce him to act against it; that we must not resent a parent's injuries; tells him to have patience, and wait for his reward." henry then pleaded in his justification the wrongs of his native country--ireland--inflicted by the british government. henry came down to washington, and stopped at tomlinson's, where deponent saw him. he afterwards removed to georgetown, to the house of one davis, an auctioneer, where the deponent visited him every day, and found him always occupied. deponent waited for his disclosures, not having any disposition to pry into his secrets; but henry was entirely silent, and incessantly sighing very deeply. on the day of general blount's funeral, deponent took henry down to alexandria, in expectation that he might communicate his projects; but he was still reserved. after dinner they returned, and while in the carriage, henry tells deponent "that he has great confidence in him; that he (deponent) has been here some time, and asks his opinion of mr. monroe." deponent answered that he was very little acquainted with any body, but thought mr. monroe a most virtuous and respectable man. deponent remained several days without hearing any thing more, until one morning at o'clock, henry came into his apartment and said--"crillon! you must sell me st. martial," [an estate of the deponent's in lebeur, near the spanish frontier;] "you have the title papers with you. my name will be rescued from oblivion by living near _crillon_, the habitation of your ancestors, and of a man who has been my friend." deponent answered that he had no objection; and, if henry on seeing the property was not satisfied, he would give orders to his agent in france to cancel the bargain. the conveyance was accordingly made.[ ] henry left deponent, when mr. brent, to whom henry was not introduced, came into the deponent's apartment. about this time, deponent received four anonymous threatening letters, and was advised by his friends that he was surrounded by spies; but he told them that he had nothing to fear--that he was "_sans peur et sans reproche_." by one of these letters i was advised to leave the city before o'clock, as a person had just arrived from london with orders to arrest me. meanwhile rumors circulated very generally to the deponent's prejudice, and he was under the necessity of vindicating his character, and of correcting the author of those reports. the message of the president gave the deponent the first intelligence of the true state of the transaction. henry told the deponent that a mr. gilvary, or gillivray, from quebec, had come to him at new york, to persuade him to go to canada; but henry said "he would not--that the rubicon was passed." henry kept the first company at boston. being questioned if henry had mentioned the names of any person with whom he had conferred? deponent answered "none." deponent landed at boston, december , ; staid there about ten or twelve days. visited governor gerry twice. question--do you know where henry is now? answer--no. by report, i hear he is in new york. deponent left boston in the public stage. henry was also a passenger. but at new haven deponent took a private carriage to himself. count e. de crillon. the report having been read, was, on motion of mr. porter ordered to lie on the table. friday, march . _admission of louisiana._ the bill for the admission of the state of louisiana into the union, and to extend the laws of the united states thereto, was read a third time, and passed, without debate--yeas , nays , as follows: yeas.--william anderson, stevenson archer, ezekiel bacon, david bard, burwell bassett, william w. bibb, william blackledge, adam boyd, james breckenridge, robert brown, william a. burwell, william butler, matthew clay, lewis condict, william crawford, roger davis, john dawson, samuel dinsmoor, william findlay, james fisk, meshack franklin, thomas gholson, thomas r. gold, peterson goodwin, edwin gray, isaiah l. green, felix grundy, bolling hall, obed hall, john a. harper, aylett hawes, jacob hufty, john m. hyneman, richard m. johnson, philip b. key, william r. king, abner lacock, peter little, william lowndes, aaron lyle, william mccoy, samuel mckee, alexander mckim, arunah metcalf, samuel l. mitchill, jeremiah morrow, hugh nelson, anthony new, thomas newbold, thomas newton, stephen ormsby, israel pickens, james pleasants, jr., benjamin pond, william m. richardson, henry m. ridgely, samuel ringgold, john rhea, john roane, william rodman, ebenezer sage, ebenezer seaver, samuel shaw, daniel sheffey, john smilie, george smith, john smith, richard stanford, samuel taggart, john taliaferro, uri tracy, george m. troup, charles turner, junior, pierre van cortlandt, junior, robert whitehill, david r. williams, thomas wilson, robert wright, and richard wynn. nays.--harmanus bleecker, epaphroditus champion, martin chittenden, william ely, james emott, asa fitch, richard jackson, junior, lyman law, joseph lewis, junior, robert le roy livingston, james milnor, jonathan o. mosely, joseph pearson, timothy pitkin, junior, josiah quincy, william reed, thomas sammons, adam seybert, philip stuart, lewis b. sturges, benjamin tallmadge, laban wheaton, and leonard white. tuesday, march . _limitation of claims on the government._ the house proceeded to consider the report of the committee of the whole on the following resolution: "_resolved_, that it is expedient to make provision by law for the payment of the following descriptions of claims, to wit:-- . loan office certificates; . indents of interest on public debt; . final settlement certificates; . commissioners' certificates; . army certificates; . credits given in lieu of army certificates cancelled; . credits for the pay of the army for which no certificates were issued; . invalid pensions; . lost or destroyed certificates--notwithstanding any statute of limitation to the contrary, under such restrictions as shall insure payment only to the original claimant, his heirs, executors, or administrators." the resolution was agreed to, and referred to the committee of claims to bring in a bill pursuant thereto. _french spoliations._ mr. pitkin said that he held in his hand a statement and representation, on oath, of captain samuel chew, of new haven, in the state of connecticut, which he would beg leave to present to the house. captain chew states, that he was supercargo on board the brig thames, and on the th of january, , sailed from st. ubes, bound to new haven, with a cargo of salt and fruit; that on the d of july following, the brig was taken possession of by a french squadron, consisting of two frigates of forty-four guns each, and a sloop of war of sixteen guns, under the command of commodore forretin, and that he was told by the officer boarding him, that the brig would be burnt the next morning. that the officers of the squadron informed him that they sailed from nantes on the th of january. that on board the french vessels were the crews of the ship asia, from philadelphia, bound to lisbon, and of the brig gershom, of duxbury, last from boston, bound to oporto, both laden with corn and flour. that the officers of the squadron informed him, that, on the th and d of january, they had captured and burnt the ship asia and brig gershom. he also states that he inquired of the commodore the reasons of burning them, and was informed by him that he had orders from the government to burn all american vessels sailing to or from an enemy's port. that, on the d of february, the commodore put on board the thames the captains and crews of the vessels burnt, being thirty-seven in number, to be landed in the first port, and that, on the th day of july, he landed them at st. bartholomews. captain chew states likewise, that when the commodore released the thames, he gave him a document or writing, subscribed with his own hand, and written in the french language, and which is annexed to his statement. this document contains a list of names of the men composing the crews of the vessels captured; it also states that they were captured on voyages from philadelphia and boston to lisbon, laden with grain and flour, by the division under the command of monsieur forretin, member of the legion of honor, and that they were captured in pursuance of the instructions of the minister of marine and the colonies. mr. p. said that this statement, with the original document annexed, in the french language, and under the hand of the commodore of the squadron, had been forwarded here, for the information of the government; that the character of captain chew was such as to entitle him to full credit wherever he was known. believing, therefore, as he did, in the truth of these statements, and that the document annexed is genuine, he thought it his duty to present it to the house for their information. the house, after hearing them read, can dispose of them by referring them to the secretary of state, or otherwise, as they may think proper. the papers presented by mr. pitkin having been read, mr. mckim moved that they lie on the table until time should be afforded for the arrival of those persons in the united states whose testimony might confirm the facts stated. mr. pitkin also wished them to lie on the table, that they might be examined by gentlemen, and receive that attention to which the importance of their contents might entitle them. the papers were accordingly ordered to lie on the table. thursday, april . _virginia military bounty land._ mr. nelson, from the committee to whom the subject had been referred, made a report, concluding with the following resolution: _resolved_, that provision should be made for securing to both officers and soldiers of the revolutionary army of virginia on that establishment, in the land or sea service of the said state, the county lands which were promised to them, either by law or resolution of the said commonwealth, out of the lands not otherwise appropriated, and lying on the northwest of the river ohio, within the virginia cession, to be of good quality, according to the true intent and meaning of the promises made on the part of virginia; and that if a sufficiency of good land, within the meaning aforesaid, cannot there be found, that these bounties shall be satisfied out of any other public lands of the united states not otherwise appropriated. the report was referred to a committee of the whole. monday, april . _publication of secret proceedings._ mr. grundy, from a committee which had been appointed while the house was sitting with closed doors, made the following report: the committee, to whom was referred the resolution directing an inquiry to be made, whether there has been any, and if any, what violation of the secrecy imposed by this house, during the present session, as to certain of its proceedings, have, according to order, proceeded in said inquiry, and beg leave to state, that, under the authority with which they were invested by the house, they have caused to come before them four witnesses, whose testimony on oath is as follows, to wit: charles prentiss states that he furnished to the editors of the "spirit of seventy-six," a paper printed in georgetown, the paragraph giving an account of the proceedings of the house of representatives, while sitting with closed doors, on the subject of the embargo; and he further says, that he did not receive the information, or any part thereof, which enabled him to write said paragraph, from any member of congress or officer of the house. upon being interrogated, he states that he received the whole of his information from nathaniel rounsavell, one of the editors of the alexandria herald; that he received it on wednesday late at night, and he asked of mr. rounsavell whether the injunction of secrecy had been removed. rounsavell replied that he had not inquired. on thursday morning the witness spoke to some of the members on the subject, and from their conduct he was satisfied that the injunction of secrecy had not been removed; notwithstanding which, the witness sent the paragraph above alluded to, to the editors of the spirit of seventy-six on thursday. john m. carter and james b. carter, editors of the "spirit of seventy-six," state that they received from mr. prentiss, in writing, the statement which appeared in their paper; that they received no information on the subject from any member or officer of the house. nathaniel rounsavell, upon being interrogated, says he composed the paragraph which appeared in the alexandria herald of friday last, containing a statement of the secret proceedings of the house of representatives upon the subject of the embargo; that he on wednesday night, after the adjournment of the house, derived a part of the information, on which he was enabled to give the detailed account, from the conversation of members of the house with whom he accidentally fell in company; that he was acquainted with the members, and they with him; they knew he was present; he partook in some degree in the conversation. question by the committee--from the conversation of what members did you collect the information of which you have spoken? the witness refused to answer the interrogatory. question --at what place was the conversation held? witness refused to answer. question --have you seen the members alluded to, or any of them, since you first appeared before this committee on saturday last? witness likewise refused to answer this interrogatory. whereupon it is ordered by the committee that the sergeant-at-arms detain said rounsavell in his custody until the pleasure of the house of representatives relative to the conduct of said witness can be ascertained. after the report was read, mr. grundy offered the following resolution for consideration: "_resolved_, that the sergeant-at-arms be directed to bring the said nathaniel rounsavell to the bar of the house, there to answer such questions as may be propounded to him by the speaker, under the direction of the house." much desultory discussion took place as to the mode of proceeding in this case, the form of the proposed order, its conformity to precedent, &c., in which messrs. pitkin, lacock, sheffey, troup, tallmadge, grundy, fisk, and widgery, took part. this discussion resulted in the proposition of a preamble to the motion, by mr. grundy, reciting the grounds of the order. the motion was then agreed to. on motion of mr. grundy, the select committee were then discharged from the further consideration of the subject. on motion of mr. grundy, it was resolved that several interrogatories contained in a paper which he offered to the house, should be proposed to the witness. mr. burwell suggested the propriety of allowing this person counsel; but withdrew the suggestion, on its being remarked, that this person appeared before the house in the character of a witness, not a criminal, and that it was not usual for a witness to appear by counsel. mr. rounsavell was then brought to the bar of the house by the sergeant-at-arms. after some hesitation on the part of the witness to take the oath required, he was sworn, in the usual form of oath administered to witnesses. the first interrogatory agreed to by the house was put to him by the speaker, in the following words: "from the conversation of what members did you collect the information of which you have spoken in your deposition before the committee?" to this question the witness answered in these words: "i refused to answer that question when before the committee, and i continue steadfast in that refusal." the witness was ordered to withdraw, and the speaker reported his answer to the house; having deemed it unnecessary, on his refusal to answer the first, to propound any other of the questions. mr. seybert, after stating his indisposition to encroach on the rights of the citizen, which, however, must yield to the superior rights of the nation, which required them to act in this case, suggested the propriety of recommitting this person to the custody of the sergeant-at-arms until further order should be taken by the house, and preventing him in the mean time from communicating with those from whose conversation he might have derived his information. with this view he offered the following resolution: _resolved_, that nathaniel rounsavell be committed to the custody of the sergeant-at-arms until further order, and that in the mean time he be precluded from all intercourse or conversation with any person or persons other than the sergeant-at-arms. the question on striking out so much of the motion as precludes the witness from conversation with any one unless in the presence and hearing of the sergeant-at-arms, was decided as follows--yeas ; nays . the question was then stated on the motion as just amended, viz: "that nathaniel rounsavell be committed to the custody of the sergeant-at-arms until the further orders of the house." the question was taken on the resolution, and it passed by a very large majority. tuesday, april . _publication of secret proceedings._ a letter was laid before the house from nathaniel rounsavell, the witness now in the custody of the sergeant-at-arms. the letter disclaims any intention to have violated the respect due to the house by the publication which he had made; it declares that the conversation which the writer had was inadvertent, as he believes, on the part of the members who partook in it, and entirely without any intention on their part, as he believes, to violate the order of the house; that he had been refused by the committee an opportunity to explain his testimony; and that his only motive for refusing to answer was, that if he were to answer the question as propounded to him, it might have the effect of criminating those who had committed no crime, and from whose conversation, but for previous and subsequent knowledge, he could not have ascertained that an embargo had been the subject of discussion, &c. mr. smilie said it was in his power, he believed, to make a statement to the house which would procure a discharge of this man. had the original motion succeeded yesterday, he should then have risen and stated what he was now about to say, because he had been determined that the man should not suffer. i do believe, said mr. s., that the substance of the information which mr. rounsavell published in his paper, he did derive from conversation of myself with others; whether he got other particulars from other members, i know not. the circumstance was this: the night the embargo law passed this house, i met with a member who was absent, and ignorant of what had passed. upon meeting with this gentleman he inquired of me what had been done? i briefly told him, and i have reason to believe mr. rounsavell was in such a situation as to hear what i said. having made this statement, i will make a few other remarks. i had a seat in congress when each of the former embargoes under this constitution were laid. the mode in which they came before the house was in those cases such as to enable us to keep them secret. in every instance except the present, the first intimation relative to the embargo came from the president to the house in a confidential shape, and the doors were immediately closed. what was the fact in this case? the measure originated in the committee of foreign relations. it was proposed there that it should be kept secret; when a member of the committee rose and declared he would not be bound--he would not keep it a secret. this destroyed at once the efficacy of any such determination on the part of the committee; we might as well have discussed the subject with open doors as with closed doors, had it not been from respect to the message of the president recommending a different course. what was published in the _herald_, therefore, was of no importance; when the subject of discussion was known to all, it was of very little consequence to know who was chairman, and who spoke, and how many voted. if the house must have a victim, and it appears to me some gentlemen would be very willing to have one, i offer myself in the room of this man; he has suffered too much already. the _quo animo_ constitutes the essence of every crime; it cannot then be supposed, after the warm support i have given to this measure, that i could have any unfriendly intention towards it. i well know the powers of this house; and i know the limits of those powers. the house will take such steps as they think proper. i have taken my ground; i am prepared for the event. he would further observe that in relation to the suspicion of members having influenced rounsavell to refuse to answer, that he had not seen him from the time of the conversation he had stated until after his appearing before the committee and refusing to answer. mr. smilie was asked to name the member of the committee of foreign relations, to whom he had just alluded, and replied that his name was no secret--it was mr. randolph. mr. calhoun said that the member of the committee of foreign relations, (mr. randolph,) to whom allusion had been made, not being in his seat, he would state how the fact just stated had occurred in the committee. that gentleman stated (said mr. c.) that he had doubts of the power of the committee to compel him to secrecy; but the gentleman also stated that he had just returned from baltimore, where he found the british consul possessed the knowledge of an intended embargo, and that a great commercial house was acting on it, and therefore he did not feel it his duty to keep it secret. i, sir, was the one who made the motion that our proceeding should be confidential. after the statement made by the gentleman from virginia, that he should feel it his duty to proclaim the fact, combined with other circumstances, i did not feel so strongly the obligation, and the motion for secrecy was waived. under the impression that it was no longer a duty to confine the knowledge of this transaction to the bosom of the committee, i mentioned it to the gentleman from boston and other commercial cities, that they might be aware of the transaction; i did it from a sense of duty, that they might be as well informed on this head as other members of the house. mr. quincy rose to state the circumstances as they had occurred on the day alluded to, and he had it in his power to do so, because, anticipating that some difficulty might arise, and wishing to relieve himself from blame, he had on the morning after the occurrence, committed it to paper, as follows: "march , . "memorandum.--mr. calhoun, of south carolina, a member of the committee of foreign relations, this day informed me that 'the committee of foreign relations had come to a determination that an embargo should be proposed to congress for its adoption to-morrow.' i asked him if i was at liberty to mention this as a fact from him. he replied that 'i was at liberty.' he said 'that the gentlemen of the committee were generally of opinion that the subject should be kept secret. but mr. randolph,[ ] one of the committee, had declared that he would not consider himself bound to any such obligation. the committee, therefore, had thought that it was but fair to give an equal chance to all the gentlemen in congress. and that he informed me of the fact, as a member from a commercial town, in order that i might communicate it to my mercantile friends.' "i soon after went to him and asked him, 'whether the embargo would come as an executive recommendation.' he replied, 'i do not deem myself authorized to answer that question.' "i find the same information has been communicated by other members of the committee to various members of congress. "josiah quincy." mr. seybert said, after what had been stated by his colleague, it was very evident that the information which had found its way to the public had been inadvertently communicated by a member; and he hoped the house was satisfied with the result. when he made the original motion, yesterday, for detaining this person, mr. s. said he was desirous of a modification of it; he had not contemplated so rigorous a confinement as it would perhaps have comprehended. he was now perfectly satisfied, and considered it his duty to move that the witness be discharged from the custody of the sergeant-at-arms. mr. roberts was opposed to discharging the witness until he had explained a sentence of his letter to the speaker, in which he had asserted that he was not permitted to explain his testimony. the fact was, that the committee had acted with the greatest patience and liberality towards the witness, and extended to him every indulgence in their power, and his assertion was therefore unwarranted. mr. macon, in the absence of mr. randolph, thought proper to remark that he had heard of the embargo in baltimore, and the report had brought him here. it appeared, then, it was no secret at all. this was the first instance, indeed, mr. m. said, in this government in which a committee had undertaken to make a secret for itself. no such power of a committee was recognized by the house. being confidentially referred by the house to a committee, they must in that case act on it in the same manner; otherwise there was, perhaps, no obligation. he did not believe there was a man in the nation who would be farther from doing a dishonorable act than the gentleman from virginia, whose name had been called in question. mr. seybert said, after what had passed, he presumed every one was satisfied there was no occasion to pursue the inquiry, and as the witness had submitted to the authority of the house, he moved the following resolution: "_resolved_, that nathaniel rounsavell, now in the custody of the sergeant-at-arms of this house, for a contempt of its authority in not answering the questions propounded to him by order of the house, having submitted to answer, and purged himself from the contempt, be discharged from said confinement." the question was then taken on mr. seybert's motion, and carried without opposition; and the sergeant-at-arms was ordered to discharge the witnesses from confinement; and then, on motion, the house adjourned until to-morrow. thursday, april . _importation of british goods._ the house resolved itself into a committee of the whole on the bill to authorize the importation of goods, wares, and merchandise, under certain circumstances, from great britain, her colonies or dependencies. _removal of federal judges on address of congress._ amendment of the constitution. mr. mckim offered to the house the following resolution, premising that he had been particularly induced to offer it, by considerations resulting from the present state of things in the state of new york, arising from the disability of the district judge, by which upwards of seven hundred suits were kept in suspense, to the great injury of individuals and prejudice of the government. in order to remedy that difficulty, a bill had passed both houses, which had been returned by the president as objectionable on constitutional grounds. it had been pronounced on this floor, by a respectable law authority, that if that bill was rejected there was no other remedy. he, therefore, had been induced to offer the following resolution: _resolved, by the senate and house of representatives of the united states of america in congress assembled_: (two-thirds of both houses concurring,) that the following section be submitted to the legislatures of the several states, which, when ratified by the legislatures of three-fourths of the states, shall be valid and binding as a part of the constitution of the united states: "_resolved_, that the judges of the supreme and inferior courts may be removed from office, on the joint address of the senate and house of representatives of the united states." the resolution was ordered to lie on the table, and to be printed-- to . _louisiana lead company._ the house resolved itself into a committee of the whole, on the bill to incorporate moses austin, henry austin, john r. jones and others, in the territory of louisiana, by the name of the lead company of louisiana. after considerable debate, the first section of the bill was stricken out, on motion of mr. troup. the question on concurrence with the committee was decided by yeas and nays. for concurrence , against concurrence . and so the said bill was rejected. tuesday, april . _cumberland road._ mr. morrow, from the committee to whom was referred the message of the president of the united states, of the st ultimo, transmitting a report and letter concerning the proceedings under the act, entitled "an act to regulate the laying out and making a road from cumberland, in the state of maryland, to the state of ohio," and also a petition from a number of the inhabitants of the western counties of the state of pennsylvania, praying that an appropriation may be made for the purpose of erecting a bridge over the youghiogany at the place where the new road crosses the said river, made the following report: that two subjects are suggested by the said message, which require legislative provision, viz: the appropriation of $ , for completing the said road to tomlinson's, where the old and new roads meet, and the granting authority to levy toll sufficient to keep the said road in repair. the reasons assigned in favor of such provisions, by the report and letter communicated by the message, are, in the opinion of the committee, sufficient to show the expediency of the measure; they therefore refer the house to these documents. it is proper, however, to state that the appropriations already made for the objects have exceeded the moneys produced by the fund pledged to defray the expense of the said road, which will appear by a letter from the treasury department, accompanying this report. that circumstance, as also the present state of the public finances, the necessity arising out of the existing crisis in the national concerns, for applying the public resources to objects of security and defence, have been duly considered; and whatever ground of objection to the proposed measure these considerations may afford, the committee are of opinion, nevertheless, that the advantages the public would derive from an immediate extension of the new road to where it will intersect with the old, are sufficient to justify the appropriation. they are of opinion, that an appropriation for erecting a bridge over the youghiogany river would be improper at this time, because, by law, the superintendent, in making the road, has power to deviate from the original survey, only that the road shall pass through the principal points established. if, then, a bridge should be erected over the said river, that place must necessarily become fixed as a point to which the road must lead, and being many miles in advance of the parts of the road contracted for, might prove inconvenient in the further prosecution of the work. the committee respectfully submit the following resolutions: _resolved_, that $ , , in addition to the sums heretofore appropriated, and reimbursable by the same fund, shall be appropriated for making the road leading from cumberland to brownsville. _resolved_, that provision be made for the levying of toll sufficient to keep the same in repair. _resolved_, that it is inexpedient to appropriate money for erecting a bridge over youghiogany river on the said road. the report was referred to a committee of the whole on thursday next. monday, april . _death of the vice president._ a message was received from the senate, announcing the death of the vice president of the united states, and the resolution they had adopted. the house agreed to consider the joint resolution as above stated. mr. tallmadge said, it was assuredly not from any want of respect to the memory of the patriot deceased, that some member from the state of new york did not on this occasion address the chair. at their request, and being himself a native citizen of the state of new york, and having served particularly and on honorable occasions in the revolutionary war with the gentleman whose death was now announced; having long known his services and merits as a soldier and statesman, he took the liberty, in behalf of the delegation from new york, to move a concurrence in the resolution of the senate. the house unanimously concurred; and messrs. tallmadge, mitchill, gold, stow, and macon, were appointed a committee on their part to act with the committee of the senate. and the house adjourned, to meet at nine o'clock to-morrow, to receive the report of the joint committee on the subject. tuesday, april . on motion of mr. tallmadge, _resolved, unanimously_, that from an unfeigned respect to the late george clinton, vice president of the united states, and president of the senate, the speaker's chair be shrouded with black during the present session: and, as a further testimony of respect for the memory of the deceased, the members will go into mourning, and wear black crape on the left arm for thirty days. on motion of mr. tallmadge, _resolved, unanimously_, that the members of this house will attend the funeral of george clinton, deceased, the vice president of the united states, to-day at four o'clock. and the house adjourned.[ ] friday, april . _corps of engineers._ the house resumed the consideration of the bill making further provision for the corps of engineers, which had been amended in committee of the whole, so as to authorize the appropriation therein made to be disbursed "at such place as may be designated by the president of the united states for that purpose." mr. gold spoke against a concurrence in this amendment at some length, and was followed on the same side by mr. smilie and mr. widgery; to whom mr. key, mr. williams, and mr. wright replied. the discussion principally involved the respective merits of west point and washington city (to which place it was supposed, probably, that the executive might deem it expedient to remove the academy) as proper sites for a military academy. the question on the amendment was decided by yeas and nays. for the amendment , against the amendment . mr. w. alston moved an amendment contemplating the establishment of the academy at carlisle, in pennsylvania, a place which he stated to be more eligible, in point of economy, convenience, and comfort, than west point. mr. gold opposed the motion. a motion was made by mr. little to recommit the bill, and negatived. mr. findlay spoke in favor of the motion. mr. baker suggested the propriety of locating the academy at harper's ferry; and because, if the academy must be removed, he thought harper's ferry preferable to carlisle, he should vote against the motion. mr. rhea made a motion which he said would put an end to all these propositions to amend the bill, viz: to postpone the bill indefinitely. the motion was negatived--yeas . the question was then taken--"shall the amendments be engrossed, and, together with the bill, be read a third time?" and decided in the affirmative. wednesday, april . _relief of caraccas, &c._ mr. macon submitted for consideration the following resolution: "_resolved_, that the committee of commerce and manufactures be instructed to report a bill authorizing the president of the united states to cause to be purchased ---- barrels of flour, and to have the same exported to some port in caraccas, for the use of the inhabitants who have suffered by the earthquake; and also authorizing him to cause to be purchased ---- barrels of flour, and to have the same exported to some port in teneriffe for the use of the inhabitants who are likely to starve by the ravages of locusts." to the adoption of the first clause of this resolution, there was no objection made by any one; but a desultory debate took place on incidental points and on the merits of the last clause. mr. randolph made a speech of some length in favor of the object of the proposed resolution, but going to show that the aid the government could afford would be ineffectual to relieve famine, if it existed; and that unquestionably the most effectual relief that could be afforded on our part to the wretched and unfortunate people of caraccas would be a suspension, as to them, of our restrictive system. he, therefore, moved to amend the resolution by adding to the end of it the words "and to authorize vessels laden with provisions to clear out for any port of the aforesaid country." mr. calhoun expressed his regret that this proposition to aid the cause of humanity could not be permitted to pass without the intermixture of party feelings, which the motion and speech of the gentleman from virginia, he thought, were calculated to excite. he was opposed to the amendment, which he conceived would virtually repeal the embargo, and he hoped, as there could be no probability of adopting it, he would withdraw it. mr. c. said he had doubts about the latter clause of the resolution; because, as to the distress at teneriffe, the house had no other information than a newspaper report, whilst of the scarcity of provisions at caraccas they had accurate information. mr. randolph defended himself against the imputation of a desire to excite party feelings, &c., and declined withdrawing his amendment, because he believed its adoption to be essential to the accomplishment of the object of the original motion. he also made a number of observations on the impatience which gentlemen of the minority were listened to in the house, and the frequent interruptions they were in the habit of meeting with, &c. mr. macon spoke against the amendment, which, if adopted, would compel him to vote against his own motion. the restrictive system, he said, would not be of long duration, and, when it expired, provisions in plenty might be exported to south america and elsewhere; so that there was very little necessity for suspending the embargo law, which was only adopted preparatory to a different state of things. the clause in the resolution relating to teneriffe, he said, had been added at the suggestion of another member. mr. calhoun again spoke against the amendment, and in reply to mr. randolph's imputation of intolerance to the minority. this course of discussion he deprecated, as not comporting with the sacred cause of distant and oppressed humanity, &c. mr. smiles made some remarks in reply to an observation of mr. randolph, that the donation by the british parliament of a hundred thousand pounds to the sufferers by an earthquake in portugal, some years ago, was an act almost sufficient to purchase absolution for all the sins of that government. mr. s. cited instances of similar conduct in this country, in much smaller communities; and expressed his regret that gentlemen chose to appreciate every act of other governments, without allowing merit to their own for acts much more praiseworthy. the question on mr. randolph's motion to amend, was negatived--yeas , nays . mr. blackledge proposed to add "corn and rice" to the flour to be exported. mr. macon thereon modified his resolution so as to authorize the exportation of "provisions," instead of "flour," which would include all descriptions of breadstuff. the question was taken on the first clause of the resolution, viz: so much as relates to caraccas, and carried unanimously. the question was taken on the remainder of the resolution, viz: so much as relates to teneriffe, and negatived--for its adoption , against it . so it was _resolved_, that the committee of commerce and manufactures be instructed to report a bill authorizing the president of the united states to cause to be purchased ---- barrels of provisions, and have the same exported to some port in caraccas, for the use of the inhabitants who have suffered by the earthquake. mr. randolph adverted to the uncertainty as to the fact, which he supposed had caused the rejection of the clause of the resolution relating to teneriffe, and offered the following resolution, in a form calculated to produce the proper inquiry: "_resolved_, that the committee of commerce and manufactures be instructed to inquire whether any, and what relief ought to be extended to the inhabitants of the canary islands, who are suffering by famine occasioned by locusts." mr. newton said, as this motion only proposed inquiry, and was not, like the other, peremptory, he hoped it would pass. and the resolution was agreed to. monday, may . _relief for venezuela._ on motion of mr. newton, the house resolved itself into a committee of the whole on the bill for the relief of the inhabitants of venezuela. [the bill authorizes the president to cause to be exported such quantity of provision as he may think proper, for the relief of the inhabitants of venezuela, suffering by the effects of an earthquake.] mr. newton proposed to fill the blank for the appropriation with the sum of $ , . mr. pitkin inquired for the official information, which might have been laid before the committee, on the subject of the distress existing at caraccas. mr. newton, in reply, said, that there were many private letters in confirmation of the facts, and also a letter from our consul, &c. some of which were read. mr. calhoun moved to fill the blank with fifty thousand dollars, which he thought would be little enough to effect the object in view. the question on the latter motion was decided in the affirmative, to . the committee rose, and reported the bill; which was ordered to be engrossed for a third reading this day, which was subsequently done, and the bill passed. wednesday, may . _recall of absentees._ mr. williams said he rose to make a motion, the object of which was in itself so clear, that he believed there was no necessity for illustrating it. there was but one objection that he was aware of, and that was, that there was no precedent for it; but if that should be urged, he would reply that there never was before a crisis requiring it. the motion was-- _resolved_, that the speaker be directed to address a letter to each member of the house now absent, requesting his attendance prior to the first day of june. mr. grundy, said the object of the motion, no doubt, was a correct one. he should, therefore, vote for the motion as it now stood, but would prefer a modification of it. on what particular day it would be proper to have every member in his place, could not be foreseen with certainty by any one. to fix on a day, however, would be as much as to tell the members we do not want them earlier, and would put it out of our power to act prior to that day. but, on the other hand, should we not be ready to act on that day, is it not pledging ourselves that we will then act, whether we are ready or not? it would be as well to request the attendance of members immediately, and then we shall not stand committed either to act on or before that day. he hoped there would not be an absent man on the occasion of voting the final measure; though he should consider such a vote as a completion of what was already begun, and not a determination of the course to be pursued, which question he considered as decided in the anterior measures already adopted. mr. roberts said the call of the house met his perfect approbation; but, in its present form, he should be constrained to vote against it. he was not afraid that it would be considered a pledge to act on a certain day; but the members near home, after it was passed, would take the opportunity of the interval to visit their homes, and leave the house without a quorum. he, therefore, moved to amend the resolution, so as to request the attendance of the members forthwith. this motion was agreed to--ayes . after some objections by mr. stanford to the phraseology of the resolution, it was passed without a division, there not being more perhaps than five dissenting voices. friday, may . _judge toulmin._ mr. poindexter, from the select committee, made the following report: the committee to whom was referred the letter of cowles mead, speaker of the house of representatives of the mississippi territory, enclosing a presentment of the grand jury of baldwin county, in said territory, complaining of the conduct of harry toulmin, judge of the district of washington, in said territory, beg leave to submit the following report: that the charges contained in the presentment aforesaid, have not been supported by evidence; and from the best information your committee have been enabled to obtain on the subject, it appears that the official conduct of judge toulmin has been characterized by a vigilant attention to the duties of his station, and an inflexible zeal for the preservation of the public peace and tranquillity of the country over which his judicial authority extends. they therefore recommend the following resolution: "resolved, that it is unnecessary to take any further proceeding on the presentment of the grand jury of baldwin county, in the mississippi territory, against judge toulmin." the report was read and concurred in. wednesday, may . _renewal of whitney's patent right to the cotton gin invention._ the house resolved itself into a committee of the whole on the bill "for the relief of eli whitney." mr. bibb avowed his opposition to the principle and details of the bill, and moved to strike out as much as provided for renewing whitney's patent right to the machine for ginning cotton. mr. b. said, that, although the bill assumed the character of a private act, it involved considerations of great national concernment. if, sir, said he, the committee will take the trouble to consider it attentively, in all its relations, i am persuaded the motion submitted will not have been made in vain. the object of granting patents is clearly defined by the constitution to be the promotion of science and useful arts. the effect of such promotion is obviously the advancement of public improvement and prosperity. all the authority which congress possesses over this subject, is derived from the following provision: "congress shall have power to promote the progress of science and useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries." here are two distinct propositions: . the delegation of power to promote science and useful arts; . and a description of the _mean_ authorized to be employed. the benefit proposed to inventors is evidently not the object in view, but the _mean_ whereby the _end_ may be accomplished; it is the incitement offered to genius and talent, for the purpose of general advantage; it is the price paid by the people of the united states for the _disclosure_ of useful inventions. to legislate, therefore, correctly, on the subject, it is indispensable that this distinction between the _mean_ and the _object_ should be kept constantly in view. so long as patents are granted for the promotion of science and useful arts, the intent and meaning of the constitution are fairly pursued; but whenever they are allowed with any other view, there is a manifest departure from the limit of authority to which congress is confined. sir, the framers of the constitution were sensible that monopolies were odious every where, and that they would be particularly so to the people of this country. hence the limitation imposed, which permits monopolies only in an expressly-defined case, and for a limited time. the constitution declares, that "all powers not delegated to the united states, nor prohibited to the states, are reserved to the states or to the people." it is also the rule of construction, universally admitted, that the enumeration of powers excludes all powers not enumerated. i maintain, then, that the constitution having clearly designated the object for which, and the parties to whom, exclusive rights may be granted, for limited times, congress is restrained within those precise bounds. if there can be a legitimate departure from them in one case, the restraint becomes wholly nugatory. the doctrine which deprives congress of the power to establish banking monopolies, equally forbids them in every case, and for every purpose, other than those specified in the clause to which i have adverted. if, therefore, i establish the position that the proposed renewal of whitney's patent is neither intended nor calculated to promote science or useful arts, i shall have succeeded in showing that this bill ought to be rejected. permit me to inquire, in the first place, how the object of the constitution may be attained? by pursuing the principle which has heretofore governed the legislature. the statute securing patent rights must be general in its application, holding out inducements to the inventive faculties of all, and prospective in its operation. it must grant monopolies for a limited time to _future_ and not _past_ discoveries. the term during which the exclusive rights shall continue, should be sufficiently long to afford the necessary incitement to the exertions of genius, to promise an adequate reward for the labor of invention. whether fourteen years, as now fixed by law, be the proper term, is a question on which gentlemen may rationally differ in opinion. it is worthy of remark, however, that under the existing statute, the progress of invention in the useful arts has been more rapid in the united states than in any other country on the globe. still, if necessary, congress is competent to extend by a general provision exclusive rights to _future_ inventors for a longer time; but the renewal of a patent for a discovery already made and in use, stands on distinct grounds. in the one case, the progress of science and useful arts (the object for which alone patents are constitutional) would probably be promoted; but in the other, the invention being already made and disclosed, public improvement cannot possibly be advanced by taking away its benefit from the community. is the object of this bill to promote science or the useful arts? the candor of its advocates will answer the question in the negative. it is to promote the interests of mr. whitney at the public expense--to convert the _mean_ prescribed by the constitution into the _end_. if the renewal of a patent in a special case would furnish an adequate stimulus to the exertions of other ingenious men, it might be urged with some appearance of plausibility; but no man will assert that one or two accidental cases of this sort, out of the many thousand patents which are issued, would have any influence on the expectations of others. it follows, therefore, that the passage of the present bill will be a departure from the intent and meaning of that instrument, which is the fountain of our authority. sir, there is another view of this subject in relation to policy, to which i beg leave to ask the attention of the committee. in this widely-extended country, the pursuits of the people are various and diversified. in one section cotton is cultivated, in another hemp, and in a third wheat. suppose patents are obtained for valuable improvements relative to these articles, either in the instruments of cultivation or of preparation for market. the patentees are entitled by law to exclusive rights for fourteen years. for the improvement concerning the article of cotton only, the patent is extended to twenty-one or twenty-eight years, as now proposed, while exclusive rights to the other inventions are permitted to expire. what is the consequence? the people of one section of the union are subjected in their pursuits to the privations incident to monopolies, for that term; while those of another section similarly situated are exempted from all restraint at the expiration of the first patent. i appeal to the candor and magnanimity of this assembly to determine whether such a course of proceeding be not manifestly unjust, and utterly incompatible with that equality of rights guarantied to the respective states. the constitution imposes uniformity of taxation for the purpose of avoiding the injustice and oppression towards particular states, which the extension of patent rights, in special cases, is calculated to produce. the fact cannot be disguised, that the operation of this bill will be to levy a tax on the people of georgia, the mississippi and louisiana territories alone; and if it passes, it will be owing to that circumstance. i know enough of human nature, and have seen much in the course of my acquaintance with legislative proceedings, to satisfy my mind, that if cotton were cultivated in a few large states, this bill would certainly be rejected. does any man believe that if the large states of virginia, pennsylvania, new york, and massachusetts, were concerned in this thing, as are those portions of the southern country i have mentioned, the application of mr. whitney for a renewal of his monopoly would be successful? no, sir; and i urge this consideration for the purpose of showing the impolicy of extending patents in special cases, inasmuch as it puts it in the power of congress by such a regulation to give a preference to one section of the union over another, and because the power will never be exercised in cases affecting a particular and comparatively small portion of the community. enact a general law on the subject of patents--make what provision you please in relation to future discoveries, and none can complain. whether improvements shall be made interesting to this, that, or the other section of the nation, will be left to chance; when made, the monopolies will be equal in their duration, and all will be equally exempt from partiality or oppression. there is another aspect, mr. chairman, in which the provisions of the bill now before the committee are manifestly unjust. the legislatures of tennessee and the two carolinas purchased, during the term of whitney's late patent, the right of using in those states his invention for ginning cotton. the fact will not be denied, that the price paid was proportionate to the extent of time for which the patentee held the exclusive right. now it is proposed to re-grant to whitney the monopoly for an additional term of years, so far as relates to my constituents, while the three states i have mentioned are expressly exempted from its operations. it is true, the legislature of georgia did not enter into any arrangements with the patentee on the subject, but it will be perceived that all persons who erected machines without permission, during the fourteen years, are left by the bill subject to prosecution. the effect, therefore, will be to impose a restraint relative to the same object on one state for twenty-one or twenty-eight years, while other states are exempted at the expiration of half that term. i know, sir, that unfavorable impressions exist on the minds of many gentlemen concerning the conduct of georgia in this affair; and i fear they may have much influence on the decision of the question. whether the legislature ought or ought not to have followed the example of the legislatures of other states, is a question which belongs exclusively to that body to determine. your patent law imposed no obligation on the subject, and they had the right to do so or not, as they pleased. having done nothing which they had not a right to do, and omitted nothing which they had not the right to omit, i cannot consent to any unauthorized control of this house over their proceedings. that mr. whitney's invention has been highly important to the southern country i freely admit, and that he deserves much for his useful labors, none can deny; but, if the conduct of georgia has not been so liberal towards him as some gentlemen think it ought to have been, an apology may be found in the resentment which his conduct was calculated to excite. when his machine was first erected in georgia, as i have understood, he refused to sell his patent right upon any terms or for any price. it was determined to monopolize every pound of cotton at an enormous premium, and arrangements were made for that purpose. to that circumstance, and the opinion which prevailed, that the invention was not new, is to be attributed the course of proceeding, now made the subject of complaint. the imprudence of mr. whitney, or, perhaps, of his partner, could not fail to have produced feelings of resentment rather than of liberality towards them. i repeat, however, that the conduct of georgia has no connection with the present question. the united states never guarantied to any patentee the receipt of any given sum for his invention, nor gave any pledge that his exclusive right should in no instance be violated. they have enacted laws for the security of patentees, provided a remedy for violations of their rights in all cases, and a tribunal before which that remedy may be sought. to that tribunal--the courts of the united states--mr. whitney should be referred for redress. this is not a time for exciting state jealousies and individual resentments among ourselves. policy, and that conciliatory spirit which ought to guide our deliberations, unite in prescribing a different course, and i do trust that prescription will not be disregarded on the present occasion. but, sir, there is still another and more important view of this subject, on which alone i probably might have relied. the patent of mr. whitney expired about four years ago, and an unqualified right to the invention was thereby vested (as i shall show) in the people of the united states. under such circumstances, it is my purpose to prove the proposed renewal manifestly unconstitutional. i presume it will be admitted, that, without the provision of the constitution on the subject, and the law pursuant thereto, no exclusive rights would belong to inventors. it is true the inventor would be entitled to his particular machinery, but other persons would not be prohibited from imitating it, and consequently his right to his discovery would not be exclusive. in a state of nature, occupancy gives a right to soil, upon the ground of supposed labor on the part of the occupant in taking possession. the right and the occupancy, however, are inseparable. if the latter be abandoned, the former ceases to exist--the soil becomes common to all, and may be appropriated to another's use. the natural law in regard to inventions is the same. so long as the inventor is alone in the possession of a knowledge of his discovery, he is the occupant, and has an exclusive right. but the moment he _discloses_ that knowledge to the public he abandons his occupancy, and the invention becomes subject to the use of others. this principle is recognized by the constitution itself, and fully established also in other countries. the express delegation of power to secure to inventors the exclusive right to their discoveries, admits that without it no such right would exist after disclosure. in great britain the doctrine is perfectly settled. if gentlemen will turn to the famous case of literary property, millar vs. taylor, which was argued with great ability, and decided with unusual deliberation, they will be satisfied of the fact. the court were divided on the particular question pending before them, and gave their opinions separately and very much at large. on that occasion it was determined that the publication of a literary work did not of itself divest the author of the exclusive right, nor authorize others to republish it for their advantage without his consent. but it was admitted, as a point fully and entirely settled, that the principle did not apply to mechanical inventions; that the disclosure of a mechanical invention did divest the inventor of his exclusive right to such inventions, and that the public became entitled to all the benefits which could be derived from it. a later decision of the highest courts of the kingdom on another case, has placed the question of literary property on the same footing with the mechanical inventions. the principle of these decisions is, that the disclosure of an invention amounts to a relinquishment of exclusive use, it is an implied right to the public. and if such be the doctrine in great britain, under a government the foundation of which is monopoly and exclusive privileges, it cannot be otherwise among this people, the fundamental principle of whose government is, equality of right and exclusion of monopolies. i contend, then, sir, that if the disclosure of an invention vests in the public a right to use it without restraint, much more strongly is that right vested after the expiration of a patent. in the one case the public are invested with a common or equal right by an implied gift, and in the other by contract. the very condition on which patents are granted is, that, at the expiration of the term authorized by law, the people shall be entitled to the free use of the invention; and, to secure this right to the people, such a specification of the machinery employed is required at the time of issuing the patent, as will enable others to understand and imitate it with success. need i undertake to prove that, from the moment whitney's patent expired, his exclusive right ceased to exist? none will deny the fact. is it necessary to show that the right which was exclusive during the patent, is now the common right of all? it will be admitted that every man in the united states has at this moment as perfect a right to erect gins on whitney's plan, as to build a house or make any implement of agriculture. the question then presents itself, has congress the power to divest the people of that right? i say no, sir; to renew a patent after it has expired, is to establish a new principle unauthorized by the constitution. to secure a pre-existent right is one thing, but to divest the people of the united states of their right, and vest it in an individual, is quite a different affair. "congress shall have power to promote the progress of science and useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries." what is the import of this provision? an inventor while in the sole possession of the knowledge of his invention has the exclusive right to it, without the intervention of law; but when that knowledge is disclosed to the public, the exclusive right would cease to exist. therefore, for the purpose of affording a stimulus to ingenuity, and of obtaining disclosures of useful discoveries, congress is authorized to provide by law for securing that exclusive right for a limited time after disclosure, which previously existed in the inventor, and which enabled him forever to withhold his invention from the public. the disclosure is the great object to be attained; the security of the exclusive right before existing, but which would be lost without such security, by the act of disclosure, is the mean authorized to be employed. is there no difference between protecting an existing right, and taking away a right from one party for the purpose of vesting it in another party? the states composing the union are now entitled to the benefit of whitney's invention, and may make whatever regulations concerning it, within their territorial limits, they please. will it be said that because the power is delegated to congress to promote useful inventions and to obtain their disclosure to the public, by holding out the inducement resulting from the security of a monopoly for a limited time, therefore the states may be constitutionally deprived of their unquestionable rights? surely not. hence, i conclude that the power of congress over this subject has terminated by their own act, and that to resume it would be an unconstitutional encroachment on the rights of the respective states. sir, the power given to congress on the question of patents is similar in extent and in every other view to that which in england is vested in the king. he is empowered to grant patents for new and useful inventions for a limited time, but it is held that when that time expires, such inventions belong to the public. "if a patent be granted in case of a new invention, the king cannot grant a second patent, for the charter is granted as an encouragement to invention and industry, and to secure the patentee in the profits for a reasonable time; but when that is expired, the public is to have the benefit of the discovery."--_ mad. rep. _. it is also laid down in _bull n. p. _, that among the general questions of patents, the first is--"whether the invention were known and in use before the patent." such is the english law, and the statutes of the united states heretofore passed are founded on the same principle. the existing statutes make it an indispensable condition to securing an exclusive right, that the invention shall not have been "known or used before the application;" for a patent itself reads thus: "whereas a. b., a citizen, &c., hath alleged that he has invented a new and useful improvement, being [here insert a description of the invention] which improvement has not been known or used before his application," &c. it is then perfectly clear, that our predecessors who have legislated on this subject considered a public disclosure of an invention an abandonment of all claim to the exclusive use; that they understood the object of the constitution to be the advancement of national improvement; and that when the public are in possession of any important discovery they could not be divested of it. suppose the inventor of that useful instrument the screw-auger, who was an inhabitant of new england, and who never solicited a patent for it, should now make application. your law excludes him because his invention is known and in use. and i call on gentlemen to show how the progress of science or useful arts, or individual justice, would be less promoted by granting a patent in that case, than in the present application. certainly a man is not less entitled to the bounty of congress who has given to the public the results of his labors, than he who has enjoyed the benefit of a monopoly for fourteen years; nor will it be asserted that the right of the community to an invention is less complete from the expiration of a patent, than from the bare act of disclosing it. mr. seybert said he did not know that the bill for the relief of mr. whitney could be acted upon this day; indeed, it was not his intention to make any observations on the subject, until the motion for striking out a portion of the bill was made by his friend from georgia, (mr. bibb;) he therefore hoped the house would pardon him for the desultory and confused remarks which he should impose upon the patience of the house. he came from a state whose interests were nowise concerned in this question, and therefore he stood as an impartial advocate in favor of the patentee; his feelings could not permit him to remain quiet on the question; by him the machine of mr. whitney was viewed as a stupendous monument of human invention--great mental exertion alone could produce results like this, and he appealed to the house as to the propriety of granting the prayer of the petition as reported in the bill. it was, he conceived, not a favor, but justice, which the passage of this bill would render to mr. whitney. if he was correctly informed, mr. w. received but a trifling compensation for his labors; that, in the case of the state of georgia, he expended $ , more in prosecuting law-suits, than he had ever been paid in that state. mr. s. continued--he was informed that in south carolina mr. whitney had met with some persecution; the assembly of that state originally purchased the right to use the machine for the sum of $ , , which was to be paid by regular annual instalments. in the following year mr. w. visited south carolina for the purpose of receiving the second instalment, when, instead thereof, he discovered that a legislature lately assembled had repealed the law formerly enacted on the subject; and, instead of receiving a second instalment, the legislature ordered that he should be prosecuted for the recovery of that which he had before received. mr. w. was saved from prison by the interference of some private gentlemen. [here messrs. williams and cheves rose, and in conversation explained to the satisfaction of mr. s. that the statement made was not accurate; that the delay and difficulties caused by the proceedings of the legislature of south carolina, were owing to well-grounded suspicions, at that time, that mr. w. was not the inventor of the cotton gin, and that he had in some respects failed to comply with the conditions prescribed by the law.] this explanation was satisfactory to mr. s., and he observed, had he known in time that he would have taken a part in this debate, he should have considered it his duty to consult his friends from south carolina on this subject. he further stated that mr. w. had informed him that, in the final adjustment of this affair, the state of south carolina had rendered him ample justice. he regretted the necessity of mentioning states in debate--he would quit this part of the subject, and proceed to communicate those facts which had made an impression on his mind in favor of the bill. he would first quote the authority of judge johnson in his decision of the case of whitney vs. carter. here mr. s. read as follows, from page : "with regard to the utility of this discovery, the court would deem it a waste of time to dwell long upon this topic. is there a man who hears us who has not experienced its utility? the whole interior of the southern states was languishing, and its inhabitants emigrating for want of some object to engage their attention and employ their industry, when the invention of this machine at once opened views to them, which set the whole country in active motion. from childhood to age, it has presented us a lucrative employment. individuals who were depressed with poverty, and sunk in idleness, have suddenly risen to wealth and respectability. our debts have been paid off; our capitals increased, and our lands are trebled in value. we cannot express the weight of obligation which the country owes to this invention; its extent cannot now be seen." these were the sentiments of a gentleman residing in the state of south carolina; from this their justness may be estimated. mr. s. continued--he could not stop here. foreign writers prove the absolute necessity of this machine, to bring the particular species of cotton to market, which constitutes nine-tenths of that which the united states could furnish. he would, in proof of this declaration, read from edwards' history of the west indies, vol. , page , as follows: "green seed cotton is of two species; of one of which the wool was so firmly attached to the seed, that no method has hitherto been found of separating them, except by the hand; an operation so tedious and troublesome, that the value of the commodity is not equal to the pains that are requisite in preparing it for market. this sort, therefore is at present cultivated principally for supplying wick for the lamps that are used in sugar boiling, and for domestic purposes; but the staple being exceedingly good, and its color perfectly white, it would doubtless be a valuable acquisition to the muslin manufactory, could means be found of detaching it easily from the seed." whilst the mind of mr. edwards was thus occupied in london, that of mr. whitney in the united states effected this valuable desideratum. mr. w.'s machine was brought to perfection in . mr. s. dreaded the further fatigue of the house, but he could not refrain from stating some additional facts. consult, said he, your treasury reports, and there you will find that, in the year , there was exported from the united states , , pounds of cotton, of which , , pounds was of the species mentioned by edwards. without the gin of whitney, or some machine equivalent thereto, not a single pound of the , , pounds could have been sent abroad--thus would the united states have found themselves deprived of the annual income of $ , , , without taking into view , , pounds of cotton consumed in our country. can we do too much for this man? let us render him but ordinary justice and pass the bill. let us, said mr. s., consider the benefits resulting from the application of useful machines in great britain. take a view of that of arkwright. if, said mr. s., his memory did not deceive him, in the year the cotton manufacture of great britain was ranked among the lowest of her domestic branches, and did not value more than £ , sterling annually; in , that nation derived thirty millions pounds sterling from her industry in this way. england well knows her interest, and she fosters her arts. let us in this respect follow her example, by doing justice to the genius of our countrymen. but for the spinning machinery invented by arkwright, and the gin of whitney, the cotton manufacture might at this time remain in a state of comparative obscurity. very little will be observed on the constitutionality of the question. he would apprize his friend from georgia of an error which he had fallen into, in confounding monopolies with patent rights. in the united states they were distinct things; and whilst on the one hand the constitution of the united states has guarantied to inventors their inventions, in its spirit and letter it is opposed to monopolies. the renewal of a patent, said mr. s., was not unprecedented, it was a common thing in england and france; and, in the united states, the cases of evans and whittemore furnished us with examples of the transaction by the congress of the united states. mr. s. said he would finish his remarks with the expectation that the house would pass the bill as reported. the committee rose, and had leave to sit again. thursday, june . _amy dardin._ the house then resolved itself into a committee of the whole on the report of the committee of claims on the petition of amy dardin, that it is reasonable, and ought to be granted. after some debate, the committee rose, and reported their agreement to the report; which was, after debate, concurred in by the house. for the report ; against it . monday, june . _additional duties._ an engrossed bill for imposing additional duties upon all goods, wares, and merchandise, imported from any foreign port or place, was read the third time, and recommitted to a committee of the whole to-day. the house accordingly resolved itself into a committee of the whole on the bill; and, after some time spent therein, the committee rose and reported the bill to the house without amendment. mr. bigelow.--mr. speaker, it is well known that i have been uniformly opposed to the measures which have drained the treasury of its money--more particularly to those measures of the present session, which have rendered necessary such large appropriations, and laid the foundation for an expense which no man can calculate. but, sir, as those appropriations have been made; as expenses have been and must be incurred; the means of payment must be provided. sir, i hold it to be a sound political principle--a principle from which this government never ought to depart--that the creation of public debt ought to be accompanied with the means of its extinguishment. this principle was strongly recommended in the administration of washington, by the then secretary of the treasury, in a report to congress on the subject of finance. he stated it to be the true secret for rendering public credit immortal, and expressed a fervent hope that the government of the united states would always adhere to it. the arguments in favor of this principle are plain and obvious. the public credit must be supported, or the government will lose the confidence of the people. the public credit must be supported, or you put at hazard the best interests of the country; you hazard, indeed, the very existence of the government. in popular governments there is always a reluctance to laying burdens upon the people. if, then, while creating a public debt, we neglect to provide the means of payment, what will be the consequence? will it be less difficult or unpopular to do this after the debt has accumulated to an enormous amount? no, sir. depend upon it, the longer you delay to provide the means for discharging the public debt, the greater will be the risk and difficulty of doing it. what will be the consequence of such neglect? sir, the country will be deluged with treasury notes; these notes will depreciate, like the old continental money--the whole history of which every one, acquainted with the history of the revolution, knows to be a history of public and private frauds. sir, the floodgates of corruption will be opened upon us. already, sir, tigers and sharks are feasting, in anticipation, on their prey. impressed, as i am, with the importance of the principle, that the creation of public debt ought to be accompanied with the means of its extinguishment, i confess it was with no little astonishment i learnt, that doubling the duties on imported articles was the only means to be provided; that, after the house had solemnly resolved upon a system of taxation, embracing various subjects, and intended, as was stated, to equalize upon the people of the different states, as far as possible, the burden of taxation, that only one of those has been selected, and that one the most unjust, the most unequal, and the most mischievous of the whole. these remarks are not made, mr. speaker, from an apprehension that doubling the duties on imported articles will not effectually open the eyes of the people. sir, it will be the most unpopular tax you can impose. the people of this country--particularly the eastern sections of it, upon whom this tax will bear peculiarly hard--are too enlightened not to know, to see, and to feel, the operation which an additional duty of per cent. upon imported articles will have upon them. they are too enlightened not to know that this will be but the beginning of sorrow. neither, sir, are they so ignorant as not to know that the five millions of dollars which it is calculated to raise by doubling the duties, will not discharge a loan of eleven millions, and treasury notes to the amount of five millions more; much less that it will defray the expenses of the war. yes, sir, they will at once see, that, sooner or later, other taxes must and will be resorted to. the true policy, then, of the united states is, in the outset, to lay the foundation of a sure and certain revenue, and not to depend, in a state of war, upon a revenue to be derived from a source so uncertain as that of commerce. my objection is not that revenue ought not to be raised, but to the present mode. i have stated, sir, that this is an unjust measure. let us for a moment look at its operation. there is, probably, at a moderate calculation, seventy millions' worth of imported goods now in the united states, which have paid only the present rate of duties. taking the calculation of the secretary of the treasury as correct, that thirty-five millions of imported goods yield a revenue, at the present rate of duties, of five millions, the seventy millions now in the united states have paid duties to the amount of ten millions. what then will be the consequence of passing this bill? the owners of the imported goods now in the united states are men who understand their own interest. the moment, therefore, you pass this bill, and impose double duties upon goods to be imported, the owners of goods now on hand will increase the price as much at least as the amount of the present rate of duties. the purchasers of these goods, therefore, will have to pay to the owners ten millions of dollars more than the present value. you will of course lay a tax of ten millions of dollars upon the purchasers and consumers of these goods, without benefiting the treasury a single cent. does this, sir, comport with the principles of justice? is it right to take from one part of the community ten millions of dollars and put it into the hands of another part? in opposing this measure, i am not advocating the interest of the merchant, but of the farmer, the tradesman, and mechanic. i am not willing that the people whom i represent, in addition to the taxes they must pay to carry on the war, should also pay such an enormous tax to the merchant. mr. mitchill expressed his sentiments as being favorable to an augmentation of the duties on imports; though he was quite unprepared to give his assent to such increase in the terms proposed by the bill. it is therein proposed, sir, to double the existing customs. i think this is not the best way of accomplishing the object intended. the bill is brought before us for the avowed purpose of raising money. the mode proposed is, by an addition of one hundred per cent. on the sums levied upon imported merchandise. now, although i am friendly to a revision of our tariff, and to such an amendment of it as will materially increase the receipts at the treasury, i am very far from believing the method now proposed for that purpose is the one we ought to adopt. i object to the plan, because it takes for granted that the rate of duties now extant in our statutes is precisely what it ought to be. this i humbly conceive is not the fact. a brief recital of our commercial system inwards, will show it. the impost, until the adoption of the constitution of , belonged to the respective states. when the government went into operation in , it took the direction and the profits of the custom-houses. one of the earliest acts of the legislators, which, on that occasion, assembled at new york, was to fix the sums which each denomination or parcel of foreign merchandise should pay on being admitted into our country. this was done, in the first instance, with all the skill which the patriotism and intelligence of the members of the first congress permitted. from session to session, and from time to time, it was altered and improved. the last memorable amendment, was, if i recollect right, in the year . then, a variety of articles which had paid an _ad valorem_ duty were _specifically_ enumerated and charged with duties conformably. at that time our tariff was admirably calculated to answer its several purposes. much thought and profound knowledge had been bestowed, to mature it, and render it as complete as possible. it was at that time peculiarly and happily calculated for the good of the nation. but eight years have elapsed since that table of duties was arranged. during that term, prodigious changes have taken place in the commercial world. the principal part of the european continent, from the baltic to the mediterranean, and from the atlantic to the adriatic, have bowed to the sovereignty of the emperor of the french. he has published his modern and enormous tariff, and caused it to be enforced throughout his extensive dominions. tobacco, cotton, and other great articles of american produce, have been subjected to excessive and almost prohibitory imposts. memorable alterations have been made, during the aforesaid period, in the insular tariff--i mean of the british dominions. their regulations, as relate to lumber and the heavy materials of our growth, as well as to the exportation of their own manufactures, have been materially tightened and straightened. their charges for convoy, port accommodations, light-houses, and quarantine, are exceedingly heavy. it is high time they should be examined, and thoroughly understood. a great change has also taken place in the colonial system. france has lost martinique, guadaloupe, and the isle of bourbon. neither the east nor the west indies contain any provinces owing allegiance to the corsican emperor. all the rum, sugar, coffee, and molasses of those productive regions, were now english--and with the english nation we were now at war. in like manner, the batavian colonies had been forced to submit to the mistress of the seas; and guiana, the cape of good hope, batavia, the spice islands, and all the other foreign possessions of the dutch, had yielded to her conquering power. all their productions were now anglican; and we could only obtain them from or through an enemy. our own country had been transformed, during the last eight years, into a situation exceedingly different from what it had ever been before. it has taken many strides towards independence. the soil has been more profoundly explored, and found to contain innumerable and invaluable productions, which the mineralogist examines with pride, and the economist turns to profit. the forest and the fields have been proved to rear more indigenous plants, and to be capable of maturing more exotic ones, than any observer had supposed. and the arts, trades, and manufactures, which have arisen among us, have progressed with a thriftiness of which i can cite you no example. mr. m. then took a survey of the three great purposes intended to be furthered by the duties on imported merchandise. the first of these was the collection of money for the treasury; the second, was the countervailing of other nations, by accommodating our duty to theirs; and the third was to protect our infant and growing manufactures. he contended that the mode proposed by the bill now before the house was very imperfect in all these relations. it was unskilfully devised. it did not contain those evidences of care and sagacity that ought to beam in every feature. he was not willing to legislate in this way--by a hop, step, and a jump. he wished the tariff to be varied in such a manner as to suit the actual state of things, and the existing condition of society and business. with such vast changes in the commercial and manufacturing departments, both at home and abroad, who could reconcile himself to a regulation, now antiquated, and differing almost _toto cælo_, from the real _desideratum_. double duties on articles where great value was united to small bulk, as in watches of gold and silver, and in precious stones, pearls and jewelry of all kinds, might be an inducement to smuggling. already we know the temptation was too great to be resisted under the present duties, and if they were augmented to the amount proposed, what evasions might not be feared? mr. bleecker.--mr. speaker: i was happy to observe on saturday that the vote of the majority was not so uniform on this bill as usual. this circumstance very much fortifies the arguments urged against it on this side of the house, and proves that the opposition cannot be referred merely to the spirit of party. indeed, sir, the objections to the increase of duty contemplated by this bill are so palpable and obvious to my mind, that i still hope it will not finally pass. it will be unequal and unfair in its operation in many respects. it will give a vast advantage to the merchants who now have goods on hand over those whose goods are not yet in the country, and which will be imported after the passage of this bill. the additional duty will by the former be added to the price of the goods, and thus an enormous profit will be given them. but this is comparatively a minor consideration. it is to be regretted, sir, that we have not a fair, just, and equal system of internal taxation, judiciously devised, with a wise reference to the feelings and temper of the people. but, in all our late plans and schemes, we appear to go on without any reference at all to the temper and feelings of the people. a revenue derived altogether from duties on imports must always be unequal in its operation on different parts of the country, and different classes of the community. there will be districts of the country--there will be whole states--in which manufactures will be carried on to a great extent; while other parts of the country, and other states, have few or no manufactures. in this respect there will be a serious inequality between manufacturing and nonmanufacturing states. again, sir, it is said that the duty will be paid by the consumer. but it is not invariably true that the consumer pays the duty. the whole of it is sometimes paid by the consumer; it is sometimes divided between the importer and consumer, and not unfrequently falls altogether on the importer. this depends on a variety of circumstances--principally the state of the market. when the market is overstocked, a great portion of it must fall on the merchant. there must often be in this country a state of things which renders it difficult or impossible to add the amount of the duty to the price of the commodity. what the state of things, and what the market will be during the war, for which this revenue is to be provided, it is difficult to foresee; for what sort of a war we are to have, no one can tell. it will perhaps be another anomaly furnished by american politics. i believe, however, by the way, that gentlemen, who expect much of "the pride, pomp, and circumstance of glorious war," will be much disappointed. but, sir, admitting with the gentlemen on the other side, that the additional duty provided by this bill will be paid by the consumers of imported articles, if the consumption is much more in one part of the country than in another, the burdens of the war will be imposed very unequally and unjustly. now it was proved to demonstration by the intelligent and accurate gentleman from connecticut, (mr. pitkin,) that the consumption of imported articles is much greater in one section of the country than in the other. his statement and arguments on this subject have not been denied. indeed, the candid and honorable gentleman who advocated this bill on saturday, (mr. bibb,) admitted that it would not operate equally. it will impose the burdens of the war on the atlantic, the commercial, states. it is true, sir, that many imported articles are consumed in every part of the union. tea and coffee, as the gentleman from pennsylvania (mr. smilie) told us, are used in the western country. but the great consumption of foreign goods is in the atlantic states; and, more than anywhere else, in the northeastern section, the most commercial states. i know, sir, that this topic is regarded by many gentlemen as ungracious and invidious. but legislating as we are for a confederated republic, it is worse than idle not to regard the character, situation, and interest of the people, in the several sections of the union; and i ask gentlemen who are so ardent in the war, whose bosoms seem to glow with patriotic fire, is it just and fair to abandon the internal taxes and impose so much of the burden of the war upon the people of the northern and eastern states, the majority of whom are known to be opposed to it; whose hearts and souls are not in the business; who are driven, and dragged, and forced into a war, in which they will go with you no further, nor any longer, than a patriotic obedience to the constitution and laws of the country requires; a war which they consider unwise, impolitic, inexpedient, and ruinous; a war which must annihilate their commerce; that commerce to which they owe their rapid progress in population, in the arts of civilized life, in knowledge, in literature, in all that adorns and makes society valuable and interesting? from this people, in such a war, you have little to expect. while we are talking of the protection of commerce and the violation of neutral rights, they see us adopt the most effectual means to destroy all their commerce. another objection of no little importance, that has been urged against this bill, is its tendency to promote smuggling. before the restrictive system, which, however well meant by many, has proved so inefficacious and ruinous, we had in this country a system of commercial morals, of which we had much reason to boast. such was the purity and fairness of the mercantile character that in no other country in the world was the revenue arising from duties on imports so punctually paid, so easily and cheaply collected, and with the aid of so few officers. but the unfortunate policy adopted in has destroyed the purity and elevation of commercial morals. evasions and violations of the laws are no longer disreputable. and what, sir, must be the situation of a country in which a constant evasion and open violation of the laws are not reprobated by public sentiment. the moral and patriotic observer will see with pain and mortification that we are about to add to the temptations to increase the stimulus to evasions and violations of the laws, still more to debase and degrade the commercial character of the country. there is, sir, another important view of the subject before us at this moment. the increase of the duty, a reliance upon the impost as the means of supporting the war, in connection with the abandonment of the internal taxes, affords an instructive practical lesson on the nature of our government. it teaches you that it is unfit for the purposes of foreign and offensive war. if gentlemen are now afraid to impose the taxes, they must believe that the people will not bear them. and, indeed, sir, few cases will occur in which the people will submit to support the burdens of an offensive war. seldom will the government be able to carry on such a war. but, sir, the conduct of those gentlemen of the majority who are for imposing additional duties and abandoning the taxes, proves another thing. if, when they have just entered upon the war, they hesitate, and are afraid to exact of the people the means necessary to carry it on, they must be conscious that the war is not so popular as they have imagined, for if the people are so hearty in the business as gentlemen have professed to believe, if they think the war a wise, politic, and necessary measure, they cannot be unwilling to be taxed a little for its support. mr. brigham.--mr. speaker, the protection and the regulation of commerce has become a prime object of legislation. this bill provides for the doubling of the duties on all imported merchandise. sir, the restrictive system has operated very severely on the commercial part of the community--it has been the source of much complaint. the commercial class of our fellow-citizens have been oppressed; they have been impoverished by the policy of their own government, and they have been soliciting their rulers for relief. they complained of the first embargo; what did they get? why, non-intercourse. they complained of the non-intercourse, and you soon gave them non-importation; when they complained of the non-importation, they had, in addition to the evil complained of, a second embargo. they then complained and prayed for the repeal of both these laws, and you have given them a declaration of war--an open war against the united kingdom of great britain and ireland, and the dependencies thereof. they complain of this war, and you give them double duties on all imported merchandise. sir, commerce, and the regulation of commerce, have become the alpha and the omega; it is the cause of war--it is the professed object and end of war; and by this bill, you are making provision for this very class of citizens, who have been thus complaining, oppressed and impoverished, to support the war by paying double duties. mr. speaker, this increase of impost is a tax which, in my opinion, will operate unjustly and unequally. it is imposing a heavier burden on the eastern and northern, than on the southern and western states. the former are under the necessity of importing and of consuming more of the foreign manufactures, than the southern states; and though they are a hardy race, they are not able to encounter the severities and rigors of the northern winters without a much greater quantity of clothing than is necessary for the people in the southern climates. sir, the people in the eastern states have been reduced in their supplies; they have not been able to carry on their ordinary domestic manufactures for want of the necessary means to prepare the crude article for manufacture; and during this long session they have been memorializing congress, and praying that they might be allowed to import the article of wire, and of such size as is not manufactured within the limits of the united states, for the making of cards, necessary to prepare cotton and wool for the making of cloth; but they have not been permitted. many have solicited congress for leave to import such goods and merchandise as were ordered and paid for before the issuing of the president's proclamation in november, ; but without success. mr. potter was in favor of a recommitment, but for other reasons than those assigned by the mover. he wished it referred, to give an opportunity to ascertain the sentiments of the house on the subject of the repeal, or the partial suspension, of the present non-importation act. mr. p. said he had found more pleasure in the pursuit of many of the things of this world, than in the possession of them; and he found it, in some measure, so with those who had been very zealous in the pursuit of war. they appeared to him to have taken more pleasure in the pursuit of their favorite object, than in the enjoyment of it; and he was not sorry to see that the war spirit had already began to evaporate, and the cold calculating spirit, so much reprobated at the commencement of this session, becoming more fashionable. mr. p. had been induced to believe from the zealous patriotism displayed this session, that this was to be a fighting, and not a trading war; that those who had so generously pledged their lives in support of the present war, would have had an opportunity of fighting, and that those who had in the same manner pledged their fortunes in support of any measure adopted by the administration, would have an opportunity of paying. mr. p. thought we had commenced this war for the protection of our commerce and the encouragement of our manufactories, and not for the purpose of extending the commerce and encouraging the manufactories of great britain; as by this war, with the partial importation act, (contemplated for the purpose of revenue,) we at once destroy our own commerce, by placing in the hands of the english the greatest part we have at sea, leaving the remainder useless, to rot at our wharves. we destroy our manufactories of cotton by the strange selection, in our partial importation act. we give to great britain advantages in this war, that she has not enjoyed in time of peace. we surrender to her what many say she has been contending for--the commerce of the world--by giving her an opportunity of supplying us with her merchandise under the flag of her friends; and, in the first onset of this war, implicitly acknowledge our dependence upon them; that we cannot do without their manufactures to clothe the nation, nor without their commerce, to raise a revenue to carry on the war. mr. p. said, if he had been in favor of this war, it would have been painful to him to be compelled to acknowledge that the people in this country, who pretended to sigh so much for war, would not bear the least privations, or consent in any event to pay taxes, but must depend upon their enemy to clothe them, and to furnish them with an indirect commerce to raise a revenue to fight them with. mr. p. said a war thus carried on must be without an object--very ruinous to this country and of long duration; for, if great britain can send her manufactures into the united states at high prices, and purchase our produce almost at her own price, and be the exclusive carrier, both ways, in her own ships, under the flag of neutrals entirely under her control; she can have no object in making peace. mr. p. said if the non-importation act should be repealed or suspended in part, agreeable to the letter of the secretary of the treasury, and we are to have a trading war, we shall have a revenue sufficient to answer all our purposes, without increasing our duties at all, as we can disband our army and reduce our expenses, as the difference of expense between a trading and a fighting war will be so great that the present rate of duties will answer all our purposes; but, if the non-importation act should not be repealed or suspended, we shall have no importations of importance for the double duties to operate upon; for, if you double your duties under such circumstances, by which you raise one million of dollars, what is the operation upon the consumer? allowing, which is certainly the fact, that the whole amount of goods in the country at this time is equal to one year's importation, which would have given the government a revenue of at least fifteen millions of dollars, the present holder of the goods in this country will immediately add the double duties to his present price, which will be increased in consequence of the war; so that the consumers will have to pay the present holders of the goods now in this country at least fifteen millions of dollars, of which the government's obtaining one million of dollars on future importations, you compel the consumer to pay at least sixteen. mr. p. said he would for a moment examine the letter from the secretary of the treasury on the subject of revenue, recommending a partial suspension of the present non-importation act. he calculates that, by doubling the duties on such partial importation, allowing that we should import only half as much from great britain in time of war as in peace, that the duties would amount to the same. here again, you have no mercy on the consumers; as the operation in the first place will be to give great britain double her prices for her goods, on which the government gets double duties, all which is to be paid by the consumer, when the price of his produce is to decrease in much the same proportion. mr. p. had heard much, on former occasions, about the encouragement of our manufactories, and, although he never was himself for encouraging them at the expense of the farmer, or the depression of our commerce, yet he could but lament that, after the commercial spirit of the country was almost broken down, and many of our commercial and seafaring citizens had been compelled to quit their former employment and resort to manufacturing for the support of their families, that the labor of that valuable class of citizens were next to be assailed; for, in examining the bill on our tables, in consequence of the letter of the secretary of the treasury, recommending the partial importation, what will be the effect upon the cotton factories? all cotton cloth under fifteen pence and over three shillings per square yard, prime cost, is to be prohibited, and all between these two prices are to be imported, so that the quality almost exclusively manufactured, and in general use in this country, is to be permitted. mr. p. thought this a very left-handed way of encouraging the manufactures of this country; but it seems as though every consideration in time of war as well as peace, is to be sacrificed for the purpose of collecting money from the people in a manner the most likely for them to remain in ignorance of the burdens that the government imposes upon them. a motion was then made by mr. randolph to amend the bill by striking out the words "one hundred" before the words "per centum" in the first section; and the question thereon being taken, it was determined in the negative--yeas , nays . saturday, june . _naturalization law._ mr. lacock said that he should not offer any subject for the consideration of the house at this late stage of the session, had he not been convinced the subject was such as required the immediate interposition of congress. it would be found, by an examination of the naturalization laws, that, after the declaration of war with great britain, the courts were prohibited from naturalizing any foreigners, although they might have registered their names and resided in the country during the probationary period required by law. to these persons, it appeared, the government was pledged, and the change of the relation between the two countries, did not lessen the obligation the government was under to redeem that pledge, and admit those persons to the rights of citizens. it would, moreover, be recollected that, by the state laws, those persons were made subject to perform militia duty, and that, as volunteers, or otherwise, they would compose a part of our army; and, perhaps, while in this situation, might be taken and punished as traitors by their government. no apprehension of danger could be entertained by their admission to the rights of citizens. they were, most of them, attached strongly to our government, and sought this country as an asylum from oppression, &c. he was, by these considerations, induced to offer the following resolution: "_resolved_, that a committee be appointed to inquire into the expediency of so amending the naturalization laws of the united states as to admit to the rights of citizenship such aliens as have emigrated from the united kingdom of great britain and ireland and her dependencies to the united states or her territories previous to the eighteenth day of june, , and that the committee have leave to report by bill or otherwise." the resolution was agreed to, and messrs. lacock, emott, and troup, were appointed a committee accordingly. monday, july . _adjournment._ a message from the senate informed the house that the senate have concurred in the resolution for the appointment of a joint committee to wait on the president of the united states, and inform him of the proposed recess of congress; that the president of the united states did, this day, approve and sign "an act respecting the pay of the army of the united states;" and that the senate, having completed the legislative business before them, are ready to adjourn. mr. newton, from the committee appointed to wait on the president of the united states and inform him of the proposed recess of congress, reported that the committee had performed that service, and that the president answered, that he had no further communication to make. _ordered_, that a message be sent to the senate to inform them that this house, having completed the business before them, are now ready to adjourn; and that the clerk do go with the said message. the clerk accordingly went with the said message; and, having returned, the speaker adjourned the house until the first monday in november next. footnotes: [ ] list of representatives. _new hampshire._--josiah bartlett, samuel dinsmoor, obed hall, john a. harper, george sullivan. _massachusetts._--ezekiel bacon, abijah bigelow, elijah brigham, william ely, isaiah l. green, josiah quincy, william m. richardson, ebenezer seaver, samuel taggart, peleg tallman, charles turner, jr., laban wheaton, william widgery, leonard white. _rhode island._--richard jackson, jr., elisha r. potter. _connecticut._--epaphroditus champion, john davenport, jr., lyman law, jonathan o. mosely, timothy pitkin, jr., lewis b. sturges, benjamin tallmadge. _vermont._--martin chittenden, james fisk, samuel shaw, william strong. _new york._--daniel avery, harmanus bleecker, thomas b. cooke, james emott, asa fitch, thomas r. gold, robert le roy livingston, arunah metcalf, samuel l. mitchill, benjamin pond, peter b. porter, ebenezer sage, thomas sammons, silas stow, uri tracy, robert whitehill. _new jersey._--adam boyd, lewis condit, jacob hufty, james morgan, george c. maxwell, thomas newbold. _pennsylvania._--william anderson, david bard, robert brown, william crawford, roger davis, william findlay, john m. hyneman, joseph lefevre, aaron lyle, abner lacock, james milnor, william piper, jonathan roberts, william rodman, adam seybert, john smilie, george smith, robert whitehill. _delaware._--henry m. ridgely. _maryland._--stevenson archer, joseph kent, philip barton key, peter little, alexander mckim, philip stuart, samuel ringgold, robert wright. _virginia._--burwell bassett, john baker, james breckenridge, william a. burwell, matthew clay, john clapton, john dawson, peterson goodwyn, thomas gholson, edwin gray, aylett hawes, john p. hungerford, joseph lewis, jr., william mccoy, hugh nelson, thomas newton, james pleasants, jr., john randolph, john roane, daniel sheffey, john smith, john talliaferro, thomas wilson. _north carolina._--willis alston, william blackledge, thomas blount, james cochran, william rufus king, nathaniel macon, archibald mcbride, joseph pearson, israel pickens, richard stanford, lemuel sawyer. _south carolina._--william butler, john c. calhoun, langdon cheves, elias earle, william lowndes, thomas moore, david r. williams, richard wynn. _georgia._--william w. bibb, howell cobb, bolling hall, george m. troup. _kentucky._--henry clay, joseph desha, richard m. johnson, samuel mckee, anthony new, stephen ormsby. _tennessee._--felix grundy, john rhea, john sevier. _ohio._--jeremiah morrow. _mississippi territory._--george poindexter, _delegate_. _indiana territory._--- jonathan jennings, _delegate_. [ ] joseph hamilton davies, commanding the cavalry in the expedition to tippecanoe, where he was killed in a night charge upon the indians. [ ] where he became a member of the canadian parliament, and as zealous for king george as he had been in congress for mr. jefferson after his sudden conversion to the republican party and its offices. when mr. randolph would be taunted with his abandonment of mr. jefferson, he was accustomed to say that he left him when barnabas bidwell (for barnabas was his name) joined him. [ ] non-importation, non-intercourse, embargo. [ ] this allusion is supposed to be to mr. harper, then from south carolina. [ ] witness bonaparte. [ ] the primitive name of the little stream that runs at the foot of the capitol grounds, called the tyber since the capitol came to its banks, and up and down which members were accustomed to walk in that early day. [ ] these salutary statutes, indispensable for the protection of the treasury, as time was wearing out the evidence which would detect fraud, have since been disregarded by modern congresses, carried away by a mistaken idea of justice, and the door opened to an endless succession of false claims, supported by fabricated evidence which there is no means to rebut, and plundering the treasury for the benefit of agents who have grown up into a regular profession for the discovery, invention, and prosecution of claims. [ ] the wildest supposition of the abuse of this question, indulged in by its opponents in this debate, falls short of the reality which has since occurred, and is continually occurring in the house of representatives; for the senate has, thus far, succeeded in keeping this gag out of that body. in the other branch, the previous question has become the regular engine of legislation, and is constantly used by party majorities, not only to prevent discussion on the most important measures, but to prevent things from being said which the house and the country ought to know; and which, being said, might be fatal to the measure, or its authors. the only safe way of terminating useless debate is that followed in the british house of commons. it permits all that is useful, and suppresses all that is annoying. the plainest speaker is heard while he gives information: the best is silenced when he ceases to inform, and begins to annoy. the irregular power of the house, exerted in coughing and scraping, will put an end to the harangue of the most wilful speaker. [ ] at the burning of the theatre at richmond. [ ] mr. venable. [ ] mr. m. clay's daughter. [ ] the annual expense of our navy already ( ) costs fifteen millions of dollars per annum; and yet all that we have got is only the beginning--the mere commencement, if naval power is intended. [ ] the events of the war of , and the events of all the wars of the french revolution, justify these opinions expressed by colonel daviess. these events prove that cruisers and privateers, to cut up commerce, and not fleets to fight battles, are the true american means of naval warfare. [ ] this was quite an extemporaneous method of selling an estate. to render the transaction more intelligible, it may be known that henry was paid $ , at that time by the american government for his disclosures, and it may be supposed that this impromptu purchase of "_st. martial, the crillon estate in lebeur, near the frontier of spain_," was a method which the two romantic friends took to divide the money which they had earned. [ ] "mr. calhoun has since stated to me, that the reasons given by mr. randolph for refusing to agree to the injunction of secrecy were, st. that he doubted the right of the committee to enjoin secrecy; d. that having just returned from baltimore, he had heard, while in that city, that the intention to lay an embargo was already known in that city, and that the british consul and a great mercantile house there were then acting on the information. j. q." [ ] the practice of pronouncing funeral eulogiums on deceased members had not, at this time, been introduced into congress. confidential supplemental journal of such proceedings of the first session of the twelfth congress, as during the time they were depending, were ordered to be kept secret, and respecting which the injunction of secrecy was afterwards removed by order of the house. wednesday, april , . a _confidential_ message was received from the president of the united states, by mr. coles, his secretary; which he delivered in at the speaker's table: whereupon, the house was cleared of all persons except the members, clerk, sergeant-at-arms, and doorkeeper, and the doors were closed. the message was then read at the clerk's table, and is as follows: _to the senate and house of representatives of the united states_: considering it as expedient, under existing circumstances and prospects, that a general embargo be laid on all vessels now in port, or hereafter arriving, for the period of sixty days, i recommend the immediate passage of a law to that effect. james madison. april , . on motion of mr. porter, the message was referred to the committee appointed on that part of the president's message at the commencement of the session, which relates to foreign relations. and, after a short lapse of time, mr. porter, from the committee on foreign relations, to whom was referred the above-cited message of the president of the united states, presented a bill laying an embargo on all ships and vessels in the ports and harbors of the united states; which was read twice, and committed to a committee of the whole house to-day. the house accordingly resolved itself into a committee of the whole on the said bill; and, mr. boyd then moved to amend it by striking out of the first section sixty days, and insert one hundred and twenty days. he said a gentleman declared the measure to be a precursor to war--the time will be much too short for the great amount of american property now abroad to return; the motion was negatived. mr. seybert viewed the subject as of vast importance; he considered that the proposition came to the house in a very questionable shape; he wanted information, and he called upon the committee of foreign relations to say whether it is to be considered as a peace measure or a precursor to war. mr. grundy (one of the committee) said he was willing to answer the very proper inquiry of the gentleman from pennsylvania, (mr. seybert,) that he understands it as a war measure, and it is meant that it shall lead directly to it; that with any other view there can be no propriety in it; as a peace measure, he had no idea that the president would have recommended it, nor would the committee have agreed to it. he hoped the gentleman from pennsylvania would now be satisfied, and prepare his mind to vote for it. mr. mckee objected to the last section, on account of the penalties which it proposed, which he considered altogether unimportant, as it is to be a precursor to war, it being merely precautionary and for a short time. he made some other inquiries respecting the section, and why such provisions were in it. mr. porter said the bill was draughted according to the wishes and directions of the secretary of the treasury. mr. stow said the subject before the committee ought to be considered of very great importance. if, as some gentlemen say, it is a precursor to war, there were some very serious questions to be asked--what is the situation of our fortresses? what is the situation of our country generally? he would answer, they are defenceless, particularly the fortifications in new york, which are unmanned and unarmed. he said this fact appeared by a letter now in possession of a member of the house, which has very lately been received from judge livingston, of new york. mr. s. said, that to try the question whether we will now lay an embargo, he moved that the first section of the bill be stricken out. mr. clay (the speaker) then warmly expressed his satisfaction and full approbation of the message, and the proposition now before the committee. he approved of it because it is to be viewed as a direct precursor to war. he did not wish upon this occasion to hear of the opinion of brockholst livingston or any other man. no gentleman can question the propriety of the proposition. gentlemen who said so much about the want of preparation are not for war. he considered this a war measure, and as such he should discuss it. sir, said mr. c., after the pledges we have made, and the stand we have taken, are we now to cover ourselves with shame and indelible disgrace by retreating from the measures and grounds we have taken? he then stated our measures, our pledges, and the great injuries and abuses we have received. he said, what would disgrace an individual under certain circumstances would disgrace a nation. and what would you think of one individual who had thus conducted to another, and should then retreat? he did not think we were upon this occasion in the least embarrassed by the conduct of france in burning our vessels; that may be a subject of future consideration. we have complete evidence as to the enemy whom we have selected. as weak and imbecile as we are, we would combine france if necessary. he said there was no intrinsic difficulty or terror in the war: there was no terror except what arises from the novelty. where are we to come in contact with our enemy? on our own continent. if gentlemen please to call these sentiments quixotic, he would say he pitied them for their sense of honor. we know no pains have been spared to vilify the government. if we now proceed we shall be supported by the people. many of our people have not believed that war is to take place. they have been wilfully blinded. he was willing to give them further notice. it remains for us to say whether we will shrink or follow up the patriotic conduct of the president. as an american and a member of this house, he felt a pride that the executive had recommended this measure. mr. randolph said he was so impressed with the importance of the subject and the solemnity of the occasion, that he could not be silent. sir, said mr. r., we are now in conclave; the eyes of the surrounding world are not upon us. we are shut up here from the light of heaven; but the eyes of god are upon us. he knows the spirit of our minds. shall we deliberate upon this subject with the spirit of sobriety and candor, or with that spirit which has too often characterized our discussions upon occasions like the present? we ought to realize that we are in the presence of that god who knows our thoughts and motives, and to whom we must hereafter render an account for the deeds done in the body. he hoped the spirit of party and every improper passion would be exorcised, that our hearts might be as pure and clean as fall to the lot of human nature. he was confident in declaring that this was not a measure of the executive--that it was engendered by an extensive excitement upon the executive. he agreed with the gentleman from pennsylvania (mr. seybert) that it comes to us in a very _questionable shape_, or rather in an _unquestionable shape_--whose ever measure it is, the people of the united states will consider it as a subterfuge for war; as a retreat from the battle. we some years ago resolved that we must have _war_, _embargo_, or _submission_--we have not had war or submitted--we must therefore have embargo. it appears to be limited to sixty days; at the expiration of that time will any one say we shall be prepared for war? sir, we are in the situation of a debtor who promises to pay his note at the bank in sixty days--we shall prolong the time sixty days, and sixty days after that, until deferred hope makes the heart sick. he would tell the honorable speaker that, at the end of sixty days, we shall not have war, and the reason is, the executive dare not plunge the nation into a war in our unprepared state. mr. boyd, of new jersey, said, while he admitted the fire and spirit of the honorable speaker, he thought he would do well to be considerate. he asked whether we were prepared to assail our enemy, or repel her attacks? he asked, whether it is wise in an unarmed nation, as we are, to commence hostilities against one so completely prepared? the motion to strike out the first section was lost--ayes , noes . mr. seybert said, that in voting for the several important measures which congress have agreed to this session, he felt himself pledged to go to war; that he was in favor of an embargo as a precautionary measure and precursor to war. when we voted for the twenty-five thousand men he supposed the executive intended war--but he has now such information from a friend in whom he confides, as leads him to believe that offensive operations are not meant. we ought to be better prepared before we engage in war. he had observed in the baltimore papers that the british have ordered a squadron and twenty thousand men for our coast. mr. smilie expressed his surprise at the observations of his friend and colleague: he did not know from what quarter he had obtained his information, that the president does not mean war. does he believe he has all this time been deceiving the legislature? he had heard but one sentiment from the president, which is, _that we must make war_ unless great britain relents. the president had always supposed that the embargo must precede war--the only difference has been as to the time, which has been finally compromised. the embargo is intended as a war measure. he would assure his colleague it was intended by both the executive and the committee of foreign relations. that being now up, he would observe that, at the beginning of the session, he was not so warm for war as many were, but he was for commercial restrictions. he was not for the twenty-five thousand men; but as the house have determined otherwise he would now go to war--if we now recede we shall be a reproach among all nations. mr. seybert then said, that his intention was to resist seriously great britain; he would be plain; but he was not for going to war unprepared. when the bill for raising the twenty-five thousand men was before the house, it was then declared to be according to the wishes of the secretary at war--since that time the secretary has said it was not his wish, from which he concluded it was not the wish of the president. mr. randolph proposed to read, from memoranda in his possession, of what occurred in the committee of foreign relations, and a conference between them and the secretary of state; which was objected to. mr. bassett (chairman) considered it in order. mr. calhoun appealed. the chairman's decision was confirmed--yeas . mr. randolph said, it will appear that the embargo is not preparatory to war, that is to say, it was not necessarily so, and of course not of the character which the speaker has considered it. from his minutes (among other facts) it appeared that mr. monroe said to the committee that the president thought we ought to declare war before we adjourn, unless great britain recedes, of which there was no prospect. that there was conversation about an embargo. mr. monroe was asked by some of the committee whether the president would recommend it by message; he answered that he would, if he could be assured it would be acceptable to the house. he also said mr. barlow had been instructed to represent to the french government our sense of the injuries received, and to press upon them our demands for reparation--that if she refused us justice, the embargo would leave the policy as respects france, and indeed of both countries, in our hands. he was asked if any essential alterations would be made within sixty days, in the defence of our maritime frontier or seaports? mr. m. answered that pretty considerable preparations would be made. he said new york was in a respectable state of defence, but not such as to resist a formidable fleet; but that it was not to be expected that such a kind of war would be carried on. it was replied that we must expect what commonly happens in wars. mr. m. said that, although a great distress and injury might take place in one part of the union, it would not essentially affect the population or resources of the union at large. as to the prepared state of the country, he said, in case of a declaration of war, the president would not feel himself bound to take upon himself more than his share of the responsibility. mr. m. said that the unprepared state of the country was the only reason why ulterior measures should be deferred. mr. r. then said that the step we are about taking is too high a price to pay for the consistency of gentlemen who think they have gone too far to recede; it is too expensive to bolster them up in this way. he asked what will be the situation of this people in sixty days? put your note into the bank, and see how soon it will be out. what will be the situation of this unhappy, misguided country? what would it have been for sixty, one hundred, or three hundred and sixty-five days past? he had hoped not to have seen the old story of the dog worrying the cat, &c., realized. are the majority, in consequence of having been goaded by the presses, to plunge the people into a war by bringing them first to the whipping-post and then by exciting their spirit? he would assure the house the spirit of the people is not up to it at this time; if so, there would be no necessity of those provocations to excite this false spirit--this kind of dutch courage. if you mean war, if the spirit of the country is up to it, why have you been spending five months in idle debate? messrs. grundy and calhoun said they were not impressed with a recollection of the facts which occurred before the committee of foreign relations in the same manner as had been stated by mr. randolph. they did not recollect that mr. monroe said the embargo would leave the policy, as respects both belligerents, in our hands. mr. porter said he was in favor of an embargo, as a measure which ought to precede war; but it was very important that we should be prepared before we commence war. he did not believe it was possible to commence it with safety within four months from this time. such a measure as an embargo would be of immense injury to the state of new york, on account of their flour which has gone to market. the committee rose and reported the bill without amendment, and the question was, shall it be engrossed for a third reading? mr. quincy then moved that the injunction of secrecy be taken off from the proceedings. mr. pitkin said there was but one precedent of an embargo being passed with closed doors. the ayes and noes were agreed to be taken on mr. quincy's motion. mr. wright then made a question of order on mr. quincy's motion. the speaker decided it was not in order, another question being before the house. mr. little then moved the previous question, which he soon withdrew. mr. stow then expressed his alarm and astonishment at the course we are taking. he said the country was wholly unprepared to enter into a war within the time which had been mentioned. he warned gentlemen of their danger, and the ruin which threatened our defenceless towns. the authority which he had cited ought to have more weight than the hear-says of some young members in this house. the elections of the maritime parts of the country will put your places into the possession of your political adversaries. you may be assured you tread on deceitful ground. the intelligent party of the community at the north are against the war. there is no calculating the injury it will be to the state of new york. mr. bassett spoke in favor of the measure, and respecting the injuries we have received from great britain. mr. roberts then moved for the previous question. mr. sheffey called for the ayes and noes. the motion for the previous question was carried--ayes , noes . the question was, shall the bill be engrossed for a third reading?--carried--ayes , noes . the question was then, on what day shall it be read? mr. grundy moved it be read immediately. mr. macon proposed to-morrow. mr. quincy said (it then being half-past seven o'clock in the evening) he had not been able to take any part in the debate; that the measure which had been thus hurried, was extremely interesting to his immediate constituents, and he was very anxious to express his sentiments upon it--but he was so fatigued with the tedious sitting, that he was unable to do it this evening, and hoped the house would indulge him until to-morrow. he would not condescend to debate such a question in the present state of the house, and he asked for the ayes and noes on mr. macon's motion, which were agreed to be taken. mr. d. r. williams said he was desirous to grant the request of the gentleman from massachusetts. it was in his opinion a very reasonable one. the deportment of the other side of the house had, during the whole of the session, been very gentlemanly towards the majority; and, sir, said he, will you now refuse to give them an opportunity to express their sentiments upon a measure which, in their view, is important? he said that policy on the part of the majority ought to dictate the indulgence asked for. the majority now stand on high ground--what will be said, and what will be the consequence of a refusal? we shall lose the ground on which we now stand. mr. macon was of the same opinion; he thought the minority had acted with more propriety than he ever knew in a minority. mr. wright objected, although he was willing to acknowledge the minority had conducted with propriety. mr. nelson said it appeared to him that according to the importance of subjects, so is our precipitancy. is the minority thus to be dragooned into this measure? for one, he wished to reflect upon it. the first intimation he had of this measure, was the message. if it is intended as a precautionary measure, as the precursor to war, as some gentlemen have treated it, it is a question of doubt in his mind. he thought it better to arm our merchantmen; to grant letters of marque and reprisal; and repeal our non-importation law. we have already suffered enough under our restrictive system. if we pass the bill to-night, it cannot be a law until the other branch act upon it. when we are going to war, it will be well known that we have the spontaneous support of more than one-half the community. mr. alston said he would have voted on the motion, if the gentleman had not asked for the ayes and noes; but as he appears desirous to marshal one side of the house against the other, he was not disposed to gratify him in his request. mr. widgery declared war to be inevitable, and it ought not to be delayed; on this account he was against postponing the bill until to-morrow. if we do it at all, it ought to be speedily. it is not to be believed that argument will change a single vote. the responsibility is on the majority. the question on reading to-morrow was negatived-- to . it was then read a third time; and on the question, shall the bill pass? it was carried--ayes , noes . _ordered_, that the title be, "an act laying an embargo on all ships and vessels in the ports and harbors of the united states for a limited time." mr. grundy and mr. wright were appointed a committee to carry the said bill to the senate, and to inform them that the house of representatives have passed the same, in confidence, and to desire their concurrence therein. and the doors were then opened. thursday, april . on motion of mr. grundy, the house was cleared of all persons except the members, clerk, sergeant-at-arms, and doorkeeper, and the doors were closed. mr. grundy, from the committee on foreign relations, presented a bill "in addition to the act, entitled 'an act to raise an additional military force, passed the eleventh of january,'" , which was read twice, and committed to a committee of the whole to-day. a question was made and taken, whether the provisions contained in the bill were of such a nature as to require secrecy in the discussion, and passed in the affirmative--yeas , nays . the house then resolved itself into a committee of the whole on the said bill; and, after some time spent therein, the bill was reported without amendment, and ordered to be engrossed, and read the third time to-day. the said bill was accordingly engrossed, and read the third time; and, on the question that the same do pass, it was resolved in the affirmative--yeas , nays . _ordered_, that the title be, "an act in addition to the act, entitled 'an act to raise an additional military force, passed on the eleventh of january, .'" messrs. calhoun and williams were appointed a committee to carry the said bill to the senate, and to inform them that the house of representatives have passed the same, in confidence, and to desire their concurrence therein. the doors were then opened. friday, april . on motion of mr. grundy, the house was cleared, and the doors were closed. a motion was then made by mr. grundy, that the house do come to the following resolution: _resolved_, that a committee be appointed to inquire whether there has been any, and if any, what violation of the secrecy imposed by this house during the present session, as to certain of its proceedings, and that the said committee have power to send for persons, papers, and records. and the question thereon being taken, it passed in the affirmative--yeas , nays . messrs. grundy, troup, roberts, breckenridge, and tallmadge, were appointed the committee. mr. porter, from the committee on foreign relations, presented a bill authorizing the president of the united states to appoint additional brigadier generals, in certain cases; which was read the first time: when a message was received from the senate, by a committee of that body, appointed for the purpose, consisting of messrs. bibb and campbell, of tennessee, notifying the house that the senate have passed the bill, entitled "an act laying an embargo on all ships and vessels in the ports and harbors of the united states, for a limited time," with amendments; in which they desire the concurrence of the house. on motion of mr. porter, the bill reported by the committee on foreign relations, this day, was ordered to lie on the table. the house proceeded to consider the amendments of the senate to the bill, entitled "an act laying an embargo on all ships and vessels in the ports and harbors of the united states;" and the said amendments being read at the clerk's table, a motion was made by mr. lewis, that the said bills and amendments be postponed indefinitely. mr. quincy expressed in strong terms his abhorrence of the measure. he said that if he believed it to be a preparation for war, he should have a less indignant sense of the injury than he felt now, as he deemed it pure, unsophisticated, reinstated embargo. the limitation of sixty or ninety days gave little consolation or hope to him, because he knew how easily the same power which originated could continue this oppressive measure. he said that his objection was, that it was not what it pretended to be; and was what it pretended not to be. that it was not embargo preparatory to war; but, that it was embargo as a substitute for the question of declaring war. it was true that it was advocated as a step incipient to a state of war, and by way of preparation for it, by gentlemen whose sincerity he was bound to respect. he could not, however, yield the conviction of his senses and reflections to their asseverations; nor declare, in complaisance to any, let them be as respectable as they might, that he saw in this measure more or less than its features indicated. is this embargo what it pretends to be--preparation for war? in the first place, no sudden attack is expected from great britain. it is not suggested that we have a tittle of evidence relative to any hostility of her temper which is not possessed by the whole community. the president has not communicated to us one document or reason for the measure. his message merely notifies to us his will and pleasure. an embargo, as preparatory to war, presupposes some new and hidden danger, not known to the mercantile community. in such case, when the government sees a danger of which the merchant is unapprised, it may be wise to stay the departure of property until the nature and extent of it can be explained, but not a moment longer. for, let the state of things be that of war or peace, the principle is precisely the same. the interest which the community has in the property of individuals is best preserved by leaving its management to the interest of the immediate proprietor, after he is made acquainted with all the circumstances of the times which have a tendency to increase its exposure. the reason of an embargo, considered as an incipient step to war, is either to save our property from depredation abroad, or keep property which we want at home. now it happens that the nature of the great mass of our exports is such that there is little danger of depredation from the enemy we pretend to fear abroad, and little want of the articles most likely to be exposed at home. the total export of last year amounted, as appears by the report of the secretary of the treasury, to $ , , . it also appears by that report, our exports to great britain and her dependencies, and also to those of spain and portugal, were $ , , . nearly seven-eighths in value of our whole exports have been, and continue to be, to the dominions of that very power from which so much is pretended to be apprehended. now, it is well known that these articles are of very great necessity and importance to her, and whether, even in the case of actual war between our countries, great britain would capture them, might be questionable. but that she would capture them on the mere preparation, before one really hostile act was committed on our part, is not only unreasonable, but absolutely absurd to expect. this very commerce which, by the passing of this bill, you indicate it is her intention to prohibit or destroy, it is her obvious and undeniable policy to unite and cherish; besides, the articles are in a very great proportion perishable, which, by this embargo, are to be prohibited from going to market. which is best--to keep them at home, to a certain loss and probable ruin, or adventure them abroad to a possible loss and highly probable gain? ask your merchant. ask common sense. but it is said "we must protect our merchants." heaven help our merchants from _embargo-protection_! it is also said that "the present condition of things has been brought upon the country by the merchants; that it was their clamor, in and , which first put congress upon this system of coercive restriction, of which they now so much complain." it is true that, in those years, the merchants did petition; not for embargo, not for commercial embarrassment and annihilation, but for protection. they, at that time, really thought that this national government was formed for protection, and that it had at heart the prosperity of all the great interests of the country. if "it was a grievous fault, grievously have _the merchants_ answered it." they asked you for relief, and you sent them embarrassment. they asked you for defence, and you imposed embargo. they "asked bread, _and you_ gave them a stone." they "asked a fish, _and you_ gave them a serpent." grant that the fault was great, suppose that they did mistake the nature and character of the government, is the penalty they incurred by this error never to be remitted? permit them once to escape, and my word for it, they will never give you an apology for this destructive protection. if they do, they will richly deserve all the misery which, under the name of protection, you can find means to visit upon them. your tender mercies are cruelties. the merchants hate and spurn this ruinous defence. mr. q. then took notice of an intimation which had been thrown out in relation to an express, sent off on the day preceding the message of the president, giving notice that the embargo would be proposed the ensuing day. he said that there was no necessity of speaking of that matter by distant allusions, as if there was any thing that sought concealment. that is not an affair, said mr. q., that shuns the light. i had the honor and the happiness, in conjunction with another member of this house, from the state of new york, (mr. emott,) and a senator from massachusetts, (mr. lloyd,) to transmit that intelligence to philadelphia, new york, and boston, by an express which started on tuesday afternoon. in doing this, we violated no obligation, even of the most remote and delicate kind. the fact that the committee of foreign relations had decided that an embargo should be proposed on wednesday, was openly avowed here on tuesday, by various members of that committee, to various members of this house. among others, i was informed of it. i shall always be grateful to the gentleman who gave me that information. indeed, the whole commercial community are under great obligations to the committee of foreign relations for their feeling and patriotism in resolving on that disclosure. it enabled us, by anticipating the mail, to give an opportunity for great masses of property to escape from the ruin our cabinet was meditating for them. yes, sir; to escape into the jaws of the british lion, and of the french tiger, which are places of refuge, of joy and delight, when compared with the grasp and fangs of this hyena embargo. what was the effect of this information? when it reached philadelphia, the whole mercantile class was in motion, and all that had it in their power were flying in all directions from the coming mischief, as if it were a plague and a pestilence. look, at this moment, on the river below alexandria, and the poor seamen, towing down their vessels against wind and tide, anxious only to escape from a country which destroys under the mask of preserving. mr. gold.--the first object with a wise legislature is, is the law expedient? the second object, which should never for a moment escape attention, can the law be executed? under the first head, the advocates of embargo disclaim the measure as appertaining to the odious restriction system: they present it as the old-fashioned, legitimate precursor of war, as the provident measure of government to protect your merchants against reprisals resulting from meditated hostilities. in this view can you be prepared for war at the expiration of the embargo? will you open your campaign at mid-summer? whatever appearance this measure may now assume, the country have grounds to fear a relapse into the old system--you will go again back into egypt. but, on the second head, can your law be executed? does the history of the past in our own, or any other country, warrant such an expectation? can you watch the extended line, of forty-five degrees north, for hundreds of miles, so as to prevent a transit for commercial exchange, indispensable to the necessities of the country? no, sir, it is a vain expectation; your army of , could not prevent the intercourse: their sympathies would rather lead them to connive at what they could not fail to see. great britain, with a canvas that whitens every sea, her revenue boats always in motion, and tide waters at every inlet or avenue, has not been able to prevent the smuggling in of about one-half the tea consumed in that kingdom. such is the conviction of english writers! it may be found in the appendix to mccartney's embassy, and in the life of the second pitt. where men have expended their substance in purchasing and collecting an article for export, under the subsisting faith of your laws permitting such export, it is not mere injustice, but cruelty in the government towards its citizens to arrest such a commerce by an _ex post facto_ law, and consign those concerned to the prison walls, and their families to beggary. nothing short of the most imperious necessity, the safety of the community, can justify so severe a proceeding. but, sir, with a single exception of timber, the commerce between the northern frontiers and canada, will, for the ninety days of this embargo, be little else than the mere exchange of articles indispensably necessary to the poor frontier settlers. how are they to be supplied with the article of salt? believe me, sir, the morality of no part of the united states, or of any nation on earth, will restrain persons under such circumstances from eluding the laws. does any man believe that this frontier traffic is not as beneficial to us as to our enemies? can your law fail of producing more injury and loss to the united states, than benefit? have you not witnessed, sir, that while you was exercising paternal care in enacting an embargo by water, for the seaboard, that our merchants and navigators, roused as by a shock of thunder, escaped from your shores, with their vessels, as from a destroying angel--from pestilence and death? mr. bleecker, in a speech of about twenty minutes, made an able, solemn, and impressive address to the house, urging them to ponder, and desist from the dangerous course they were pursuing, and forewarned them of the calamitous consequences that would inevitably result. mr. mitchill said, in viewing political subjects and dangers, some are inclined to look through political microscopes, which diminish them; others, misled by their imaginations, look through political telescopes, and are apt to magnify and enhance them. he, for one, was for viewing our situation with his naked optics--for looking at it as it really is. he could not be considered as less alive to the interests and happiness of the inhabitants of that city, respecting whom so much sensibility has been expressed, than any other gentleman. there were his intimate friends, connections, and what little property he possessed. no one could feel more for their sufferings under commercial restrictions, or in case of an assault upon it by the enemy. and if he was to consult only his personal sensibilities, they were all in favor of the people of that country with whom we are to enter into a conflict. he has no prejudice against them. he there received his education. he has lived in north and south britain. from actual residence, he knows them from the grampian hills to dover. he knows them, however, to be a proud, overbearing nation. from former residence, and also from recent intelligence, (and that within a few days, by late arrivals,) he knows that they consider us a sort of a generation whom they have a right to despise. we are viewed in this unworthy, degraded situation, not on account of our want of resources, or population; but because they believe we cannot stand together--that we have no confidence in ourselves--that we cannot lead armies into their countries. their object has been, since the year , to divide and distract us, and to prevent our taking efficient measures. sir, what has been the cause of our present condition? it is well known that, in , he was made the organ of his constituents, as other gentlemen were for salem and other commercial places, to present to congress their plaints and wailings, on account of the grievances they suffered upon the subject of carrying colonial produce, and the continuity of voyage. the archives of this house will prove this. they declared they should be ruined if the british doctrine should be countenanced. the government were goaded by these applications for relief. the government began, and continued pacific measures, until we have got into our present situation. mr. widgery spoke with much warmth in favor of the embargo and war. mr. stuart said, if it was in order, he would ask the gentleman from massachusetts (mr. widgery) a few questions. he would ask that gentleman if he was, during the last embargo, a ship owner? if so, did he not go to england during the embargo? if so, how did he go? mr. widgery answered that he went by water. the speaker observed these questions were not in order. mr. stuart said if they were not in order he would sit down. the question was now taken on indefinite postponement, and determined in the negative--yeas , nays . on motion of mr. roberts, the previous question was demanded by a majority of the members present: whereupon the question was taken, in the form prescribed by the rules and orders of the house, to wit: "shall the main question be now put?" and passed in the affirmative--yeas , nays . the speaker then decided that the main question to now put, was: "will the house concur with the senate in the amendments made to the bill?" and not upon the proposition for postponement. from which decision mr. randolph moved an appeal; which being seconded, the question was put, "is the decision of the chair correct?" and decided in the affirmative. saturday, april . the house was cleared of all persons, and the doors were closed. _additional brigadier generals._ the house resumed the consideration of the bill authorizing the president of the united states to appoint additional brigadier generals, &c. mr. sammons.--mr. speaker: if those officers are intended to command the militia, i trust in god this bill will not pass. what! shall our militia be commanded by officers commissioned by the president? can the president be as well acquainted with the qualifications and abilities of officers in the militia as the governors of the states? it cannot be expected. what spirit can be in the people to support the war if the federal government takes away the right of the states to appoint the officers for commanding their militia? if our government takes away our liberty, is it necessary to contend with a foreign government for our rights? in former times the officers were appointed in such parts as the men were raised: that is not the case now. some time in the session, i was told by some of the southern members, "we will give you officers if you will find the men." it is a fact, that, before our new york troops were raised, a major from north carolina was appointed; and was ordered to take the command of troops enlisted in new york. governor hull's son, from detroit, is appointed to the command of one of our companies, and is on command with his father as his aid. where is the justice? shall we have companies without captains, or shall the united states pay for two captains? (for hull is returned in colonel schuyler's regiment as captain.) he cannot belong there. in such proceedings i almost tremble for the consequence to my country. there is no necessity or propriety in appointing more generals, in my opinion, at present, for our regulars--for the president is directed to appoint eight brigadiers and two major generals. i believe they are not all appointed, and of those that are appointed, i hear one is sent home because they have no command for him. if this bill passes, our government will be as bad as that of great britain before the revolution. in the declaration of independence we complain of the king, that "he has erected a multitude of new offices, and sent hither swarms of officers to harass our people and eat out their substance." but if those ten generals are not sufficient, this house has passed a bill at the request of the president of the united states to commission and appoint the officers for fifty thousand militia volunteers. there are limits empowering how many he shall appoint--he may appoint twelve brigadiers and four major generals--will not that be as many as he wanted? monday, april . a confidential message was received from the senate by a committee of that body appointed for the purpose, consisting of mr. varnum and mr. anderson, notifying the house that the senate have passed the bill, entitled "an act to prohibit the exportation of specie, goods, wares, and merchandise, for a limited time," with amendments; in which they desire the concurrence of the house. the said amendments were read at the clerk's table: when a motion was made by mr. goldsborough that the said bill be _postponed indefinitely_. and the question thereon being taken, it was determined in the negative--yeas , nays . the question was then taken to concur in the said amendments, and passed in the affirmative. mr. smilie and mr. pleasants were appointed a committee to deliver a message to the senate, and inform them that the house of representatives have concurred in their amendment to the bill aforesaid. the doors were then opened. tuesday, april . mr. crawford, from the joint committee for enrolled bills, reported that the committee had examined an enrolled bill "to prohibit the exportation of specie, goods, wares, and merchandise, for a limited time," and had found the same to be truly enrolled: when, the speaker signed the said bill. mr. crawford and mr. turner were appointed a committee to carry the said bill to the senate for the signature of their president. the doors were then opened; and having remained so for some time, they were again closed;. when, mr. turner, from the above-mentioned committee, reported that the committee had presented to the president of the united states the said bill, and that they were instructed by the president to inform the two houses that he had approved and signed the same. on motion of mr. calhoun, the injunction of secrecy imposed upon the said bill and the proceedings thereon, were then removed. the doors were then opened. monday, june . a confidential message, in writing, was received from the president of the united states, by mr. edward coles, his secretary; which he delivered in at the speaker's table. the house was then cleared of all persons, except the members, clerk, sergeant-at-arms, and doorkeepers, and the doors were closed; and the said message was read, and is as follows: [confidential.] _to the senate and house of representatives of the united states_: i communicate to congress certain documents, being a continuation of those heretofore laid before them on the subject of our affairs with great britain. without going back beyond the renewal, in one thousand eight hundred and three, of the war in which great britain is engaged, and omitting unrepaired wrongs of inferior magnitude, the conduct of her government presents a series of acts, hostile to the united states as an independent and neutral nation. british cruisers have been in the continued practice of violating the american flag on the great highway of nations, and of seizing and carrying off persons sailing under it; not in the exercise of a belligerent right, founded on the law of nations against an enemy, but a municipal prerogative over british subjects. british jurisdiction is thus extended to neutral vessels, in a situation where no laws can operate but the law of nations, and the laws of the country to which the vessels belong; and a self-redress is assumed, which, if british subjects were wrongfully detained and alone concerned, is that substitution of force, for a resort to the responsible sovereign, which falls within the definition of war. could the seizure of british subjects, in such cases, be regarded as within the exercise of a belligerent right, the acknowledged laws of war, which forbid an article of captured property to be adjudged, without a regular investigation before a competent tribunal, would imperiously demand the fairest trial, where the sacred rights of persons were at issue. in place of such a trial, these rights are subjected to the will of every petty commander. the practice, hence, is so far from affecting british subjects alone, that, under the pretext of searching for these, thousands of american citizens, under the safeguard of public law, and of their national flag, have been torn from their country, and from every thing dear to them; have been dragged on board ships of war of a foreign nation, and exposed, under the severities of their discipline, to be exiled to the most distant and deadly climes, to risk their lives in the battles of their oppressors, and to be melancholy instruments of taking away those of their own brethren. against this crying enormity which great britain would be so prompt to avenge if committed against herself, the united states have in vain exhausted remonstrances and expostulations; and that no proof might be wanting of their conciliatory dispositions, and no pretext left for a continuance of the practice, the british government was formally assured of the readiness of the united states to enter into arrangements, such as could not be rejected, if the recovery of british subjects were the real and the sole object. the communication passed without effect. british cruisers have been in the practice also of violating the right and the peace of our coasts. they hover over and harass our entering and departing commerce. to the most insulting pretensions they have added the most lawless proceedings in our very harbors; and have wantonly spilt american blood within the sanctuary of our territorial jurisdiction. the principles and rules enforced by that nation, when a neutral nation, against armed vessels of belligerents hovering near her coasts and disturbing her commerce, are well known. when called on, nevertheless, by the united states, to punish the greater offences committed by her own vessels, her government has bestowed on their commanders additional marks of honor and confidence. under pretended blockades, without the presence of an adequate force, and sometimes without the practicability of applying one, our commerce has been plundered in every sea; the great staples of our country have been cut off from their legitimate markets; and a destructive blow aimed at our agricultural and maritime interests. in aggravation of these predatory measures, they have been considered as in force from the dates of their notification; a retrospective effect being thus added, as has been done in other important cases, to the unlawfulness of the course pursued. and to render the outrage the more signal, those mock blockades have been reiterated and enforced in the face of official communications from the british government, declaring, as the true definition of a legal blockade, "the particular ports must be actually invested, and previous warning given to vessels bound to them, not to enter." not content with these occasional expedients for laying waste our neutral trade, the cabinet of britain resorted, at length, to the sweeping system of blockades, under the name of orders in council; which has been moulded and managed as might best suit its political views, its commercial jealousies, or the avidity of british cruisers. to our remonstrances against the complicated and transcendent injustice of this innovation, the first reply was, that the orders were reluctantly adopted by great britain, as a necessary retaliation on decrees of her enemy, proclaiming a general blockade of the british isles, at a time when the naval force of that enemy dared not issue from his own ports. she was reminded, without effect, that her own prior blockades, unsupported by an adequate naval force actually applied and continued, were a bar to this plea: that executed edicts against millions of our property could not be retaliation on edicts confessedly impossible to be executed: that retaliation, to be just, should fall on the party setting the guilty example, not on an innocent party, which was not even chargeable with an acquiescence in it. when deprived of this flimsy veil for a prohibition of our trade with her enemy, by the repeal of his prohibition of our trade with great britain, her cabinet, instead of their corresponding repeal, or a practical discontinuance of its orders, formally avowed a determination to persist in them against the united states, until the markets of her enemy should be laid open to british products; thus asserting an obligation on a neutral power to require one belligerent to encourage, by its internal regulations, the trade of another belligerent; contradicting her own practice towards all nations, in peace as well as in war; and betraying the insincerity of those professions which inculcated a belief, that, having resorted to her orders with regret, she was anxious to find an occasion for putting an end to them. abandoning still more all respect for the neutral rights of the united states, and for its own consistency, the british government now demands, as prerequisite to a repeal of its orders as they relate to the united states, that a formality should be observed in the repeal of the french decrees, no wise necessary to their termination, nor exemplified by british usage; and that the french repeal, besides including that portion of the decrees which operate within a territorial jurisdiction, as well as that which operates on the high seas, against the commerce of the united states, should not be a single and special repeal in relation to the united states, but should be extended to whatever other neutral nations, unconnected with them, may be affected by those decrees. and, as an additional insult, they are called on for a formal disavowal of conditions and pretensions advanced by the french government, for which the united states are so far from having made themselves responsible, that, in official explanations which have been published to the world, and in a correspondence of the american minister at london with the british minister for foreign affairs, such a responsibility was explicitly and emphatically disclaimed. it has become, indeed, sufficiently certain, that the commerce of the united states is to be sacrificed, not as interfering with the belligerent rights of great britain; not as supplying the wants of her enemies, which she herself supplies; but as interfering with the money which she covets for her own commerce and navigation. she carries on a war against the lawful commerce of a friend, that she may the better carry on a commerce with an enemy; a commerce polluted by the forgeries and perjuries which are, for the most part, the only passports by which it can succeed. anxious to make every experiment short of the last resort of injured nations, the united states have withheld from great britain, under successive modifications, the benefits of a free intercourse with their market, the loss of which could not but outweigh the profits accruing from her restrictions of our commerce with other nations. and to entitle these experiments to the more favorable consideration, they were so framed as to enable her to place her adversary under the exclusive operation of them. to these appeals her government has been equally inflexible, as if willing to make sacrifices of every sort, rather than yield to the claims of justice, or renounce the errors of a false pride. nay, so far were the attempts carried to overcome the attachments of the british cabinet to its unjust edicts, that it received every encouragement within the competence of the executive branch of our government, to expect that a repeal of them would be followed by a war between the united states and france, unless the french edicts should also be recalled. even this communication, although silencing forever the plea of a disposition in the united states to acquiesce in those edicts, originally the sole plea for them, received no attention. if no other proof existed of a predetermination of the british government against a repeal of its orders, it might be found in the correspondence of the minister plenipotentiary of the united states at london, and the british secretary for foreign affairs, in one thousand eight hundred and ten, on the question whether the blockade of may, one thousand eight hundred and six, was considered as in force, or as not in force. it had been ascertained that the french government, which urged this blockade as the ground of its berlin decree, was willing, in the event of its removal, to repeal that decree; which, being followed by alternate repeals of the other offensive edicts, might abolish the whole system on both sides. this inviting opportunity for accomplishing an object so important to the united states, and professed, so often, to be the desire of both the belligerents, was made known to the british government. as that government admits that an application of an adequate force is necessary to the existence of a legal blockade, and it was notorious that, if such a force had ever been applied, its long discontinuance had annulled the blockade in question, there could be no sufficient objection on the part of great britain to a formal revocation of it; and no imaginable objection to a declaration of the fact that the blockade did not exist. the declaration would have been consistent with her avowed principles of blockade; and would have enabled the united states to demand from france the pledged repeal of her decrees; either with success, in which case the way would have been opened for a general repeal of the belligerent edicts; or without success, in which case the united states would have been justified in turning their measures exclusively against france. the british government would, however, neither rescind the blockade, nor declare its non-existence; nor permit its non-existence to be inferred and affirmed by the american plenipotentiary. on the contrary, by representing the blockade to be comprehended in the orders in council, the united states were compelled so to regard it, in their subsequent proceedings. there was a period when a favorable change in the policy of the british cabinet was justly considered as established. the minister plenipotentiary of his britannic majesty here, proposed an adjustment of the differences more immediately endangering the harmony of the two countries. the proposition was accepted with the promptitude and cordiality corresponding with the invariable professions of this government. a foundation appeared to be laid for a sincere and lasting reconciliation. the prospect, however, quickly vanished. the whole proceeding was disavowed by the british government, without any explanations, which could, at that time, repress the belief, that the disavowal proceeded from a spirit of hostility to the commercial rights and prosperity of the united states. and it has since come into proof, that at the very moment when the public minister was holding the language of friendship, and inspiring confidence in the sincerity of the negotiation with which he was charged, a secret agent of his government was employed in intrigues, having for their object a subversion of our government, and a dismemberment of our happy union. in reviewing the conduct of great britain towards the united states, our attention is necessarily drawn to the warfare, just renewed by the savages, on one of our extensive frontiers; a warfare which is known to spare neither age nor sex, and to be distinguished by features peculiarly shocking to humanity. it is difficult to account for the activity and combinations which have for some time been developing themselves among tribes in constant intercourse with british traders and garrisons, without connecting hostility with that influence, and without recollecting the authenticated examples of such interpositions, heretofore furnished by the officers and agents of that government. such is the spectacle of injuries and indignities which have been heaped on our country; and such the crisis which its unexampled forbearance and conciliatory efforts have not been able to avert. it might at least have been expected, that an enlightened nation, if less urged by moral obligations, or invited by friendly dispositions on the part of the united states, would have found, in its true interest alone, a sufficient motive to respect their rights and their tranquillity on the high seas; that an enlarged policy would have favored that free and general circulation of commerce in which the british nation is at all times interested, and which, in times of war, is the best alleviation of its calamities to herself, as well as to other belligerents; and, more especially, that the british cabinet would not, for the sake of a precarious and surreptitious intercourse with hostile markets, have persevered in a course of measures which necessarily put at hazard the invaluable market of a great and growing country, disposed to cultivate the mutual advantages of an active commerce. other councils have prevailed. our moderation and conciliation have had no other effect than to encourage perseverance and to enlarge pretensions. we behold our seafaring citizens still the daily victims of lawless violence, committed on the great common and highway of nations, even within sight of the country which owes them protection. we behold our vessels, freighted with the products of our soil and industry, or returning with the honest proceeds of them, wrested from their lawful destinations, confiscated by prize courts, no longer the organs of public law, but the instruments of arbitrary edicts, and their unfortunate crews dispersed and lost, or forced, or inveigled in british ports into british fleets, whilst arguments are employed in support of these aggressions, which have no foundation but in a principle equally supporting a claim to regulate our external commerce in all cases whatsoever. we behold, in fine, on the side of great britain, a state of war against the united states; and on the side of the united states, a state of peace towards great britain. whether the united states shall continue passive under these progressive usurpations, and their accumulating wrongs, or, opposing force to force in defence of their national rights, shall commit a just cause into the hands of the almighty disposer of events, avoiding all connections which might entangle it in the contest or views of other powers, and preserving a constant readiness to concur in an honorable re-establishment of peace and friendship, is a solemn question, which the constitution wisely confides to the legislative department of the government. in recommending it to their early deliberation, i am happy in the assurance, that the decision will be worthy the enlightened and patriotic councils of a virtuous, a free, and a powerful nation. having presented this view of the relations of the united states with great britain, and of the solemn alternative growing out of them, i proceed to remark, that the communications last made to congress on the subject of our relations with france, will have shown, that since the revocation of her decrees, as they violated the neutral rights of the united states, her government has authorized illegal captures by its privateers and public ships; and that other outrages have been practised on our vessels and our citizens. it will have been seen, also, that no indemnity had been provided, or satisfactorily pledged, for the extensive spoliations committed under the violent and retrospective orders of the french government against the property of our citizens, seized within the jurisdiction of france. i abstain, at this time, from recommending to the consideration of congress definitive measures with respect to that nation, in the expectation that the result of unclosed discussions between our minister plenipotentiary at paris and the french government will speedily enable congress to decide, with greater advantage, on the course due to the rights, the interests, and the honor, of our country. james madison. washington, _june , _. a motion was then made by mr. randolph, that the said message be referred to the committee of the whole house on the state of the union: and the question thereon being taken, it was determined in the negative--yeas , nays . on motion of mr. d. r. williams, the message was referred to a committee appointed on that part of the president's message which relates to our foreign relations. tuesday, june . the house met, and adjourned till to-morrow. wednesday, june . _report on foreign relations._ mr. calhoun, from the committee on foreign relations, to whom was referred the message of the president of the united states of the first instant, made a report, stating at large the causes and reasons of a war with great britain, which was read as follows: "that, after the experience which the united states have had of the great injustice of the british government towards them, exemplified by so many acts of violence and oppression, it will be more difficult to justify to the impartial world their impatient forbearance, than the measures to which it has become necessary to resort, to avenge the wrongs, and vindicate the rights and honor of the nation. your committee are happy to observe, on a dispassionate view of the conduct of the united states, that they see in it no cause for censure. "if a long forbearance under injuries ought ever to be considered a virtue in any nation, it is one which peculiarly becomes the united states. no people ever had stronger motives to cherish peace; none have ever cherished it with greater sincerity and zeal. "but the period has now arrived, when the united states must support their character and station among the nations of the earth, or submit to the most shameful degradation. forbearance has ceased to be a virtue. war on the one side, and peace on the other, is a situation as ruinous as it is disgraceful. the mad ambition, the lust of power, and commercial avarice of great britain, arrogating to herself the complete dominion of the ocean, and exercising over it an unbounded and lawless tyranny, have left to neutral nations an alternative only between the base surrender of their rights, and a manly vindication of them. happily for the united states, their destiny, under the aid of heaven, is in their own hands. the crisis is formidable only by their love of peace. as soon as it becomes a duty to relinquish that situation, danger disappears. they have suffered no wrongs, they have received no insults, however great, for which they cannot obtain redress. "more than seven years have elapsed since the commencement of this system of hostile aggression by the british government, on the rights and interests of the united states. the manner of its commencement was not less hostile than the spirit with which it has been prosecuted. the united states have invariably done every thing in their power to preserve the relations of friendship with great britain. of this disposition they gave a distinguished proof at the moment when they were made the victims of an opposite policy. the wrongs of the last war had not been forgotten at the commencement of the present one. they warned us of dangers, against which it was sought to provide. as early as the year , the minister of the united states at london was instructed to invite the british government to enter into a negotiation on all the points on which a collision might arise between the two countries, in the course of the war, and to propose to it an arrangement of their claims on fair and reasonable conditions. the invitation was accepted. a negotiation had commenced, and was depending, and nothing had occurred to excite a doubt that it would not terminate to the satisfaction of both the parties. it was at this time, and under these circumstances, that an attack was made by surprise, on an important branch of the american commerce, which affected every part of the united states, and involved many of their citizens in ruin. "the commerce on which this attack was so unexpectedly made, was that between the united states and the colonies of france, spain, and other enemies of great britain. a commerce just in itself; sanctioned by the example of great britain, in regard to the trade with her own colonies; sanctioned by a solemn act between the two governments in the last war; and sanctioned by the practice of the british government in the present war: more than two years having then elapsed, without any interference with it. "the injustice of this attack could only be equalled by the absurdity of the pretext alleged for it. it was pretended by the british government that, in case of war, her enemy had no right to modify its colonial regulations, so as to mitigate the calamities of war to the inhabitants of its colonies. this pretension, peculiar to great britain, is utterly incompatible with the rights of sovereignty in every independent state. if we recur to the well-established, and universally admitted law of nations, we shall find no sanction to it in that venerable code. the sovereignty of every state is co-extensive with its dominions, and cannot be abrogated, or curtailed in its rights, as to any part, except by conquest. neutral nations have a right to trade to every port of either belligerents, which is not legally blockaded, and in all articles which are not contraband of war. such is the absurdity of this pretension, that your committee are aware, especially after the able manner in which it has been heretofore refuted and exposed, that they would offer an insult to the understanding of the house, if they enlarged on it; and if any thing could add to the high sense of injustice of the british government in this transaction, it would be the contrast which her conduct exhibits in regard to this trade, and in regard to a similar trade by neutrals, with her own colonies. it is known to the world, that great britain regulates her own trade, in war and in peace, at home and in her colonies, as she finds for her interest; that in war she relaxes the restraints of her colonial system in favor of the colonies, and that it never was suggested that she had not a right to do it, or that a neutral, in taking advantage of the relaxation, violated a belligerent right of her enemy. but with great britain every thing is lawful. it is only in trade with her enemies, that the united states can do wrong: with them, all trade is unlawful. "in the year , an attack was made by the british government on the same branch of our neutral trade, which had nearly involved the two countries in war. that difference, however, was amicably accommodated. the pretension was withdrawn, and reparation made to the united states for the losses which they had suffered by it. it was fair to infer from that arrangement, that the commerce was deemed by the british government lawful, and that it would not be again disturbed. "had the british government been resolved to contest this trade with neutrals, it was due to the character of the british nation, that the decision should be known to the government of the united states. the existence of a negotiation which had been invited by our government, for the purpose of preventing differences, by an amicable arrangement of their respective pretensions, gave a strong claim for the notification, while it afforded the fairest opportunity for it. but, a very different policy animated the then cabinet of england. generous sentiments were unknown to it. the liberal confidence and friendly overtures of the united states were taken advantage of to ensnare them. steady to its purpose, and inflexibly hostile to this country, the british government calmly looked forward to that moment when it might give the most deadly wound to our interest. a trade, just in itself, which was secured by so many strong and sacred pledges, was considered safe. our citizens, with their usual industry and enterprise, had embarked in it a vast proportion of their shipping and of their capital, which were at sea under no other protection than the law of nations, and the confidence which they reposed in the justice and friendship of the british nation. at this period, the unexpected blow was given. many of our vessels were seized, carried into port, and condemned by a tribunal, which, while it professes to respect the law of nations, obeys the mandate of its own government in opposition to all law. hundreds of other vessels were driven from the ocean, and the trade itself in a great measure suppressed. "the effect produced by this attack on the lawful commerce of the united states, was as might have been expected from a virtuous, independent, and highly-injured people. but one sentiment pervaded the whole american nation. no local interests were regarded, no sordid motives felt. without looking to the parts which suffered most, the invasion of our rights was considered a common cause, and from one extremity of our union to the other, was heard the voice of a united people, calling on their government to avenge their wrongs, and vindicate the rights and honor of the country. "from this period, the british government has gone on in a continued encroachment on the rights and interests of the united states, disregarding in its course, in many instances, obligations which have heretofore been held sacred by civilized nations. "in may, , the whole coast of the continent, from the elbe to brest, inclusive, was declared to be in a state of blockade. by this act, the well-established principles of the law of nations, principles which have served for ages as guides, and fixed the boundary between the rights of belligerents and neutrals, were violated. by the law of nations, as recognized by great britain herself, no blockade is lawful, unless it be sustained by the application of an adequate force; and that an adequate force was applied to this blockade, in its full extent, ought not to be pretended. whether great britain was able to maintain legally so extensive a blockade, considering the war in which she is engaged, requiring such extensive naval operations, is a question which is not necessary at this time to examine. it is sufficient to be known, that such force was not applied, and this is evident, from the terms of the blockade itself, by which, comparatively, an inconsiderable portion of the coast only was declared to be in a state of strict and rigorous blockade. the objection to the measure is not diminished by that circumstance. if the force was not applied, the blockade was unlawful, from whatever cause the failure might proceed. the belligerent who institutes the blockade, cannot absolve itself from the obligation to apply the force, under any pretext whatever. for a belligerent to relax a blockade which it could not maintain, with a view to absolve itself from the obligation to maintain it, would be a refinement in injustice, not less insulting to the understanding, than repugnant to the law of nations. to claim merit for the mitigation of evil which the party either had not the power, or found it inconvenient to inflict, would be a new mode of encroaching on neutral rights. your committee think it just to remark, that this act of the british government does not appear to have been adopted in the sense in which it has been since construed. on consideration of all the circumstances attending the measure, and particularly the character of the distinguished statesman who announced it, we are persuaded that it was conceived in a spirit of conciliation, and intended to lead to an accomodation of all differences between the united states and great britain. his death disappointed that hope, and the act has since become subservient to other purposes. it has been made, by his successors, a pretext for that vast system of usurpation, which has so long oppressed and harassed our commerce. "the next act of the british government which claims our attention, is the order of council of january , , by which neutral powers are prohibited trading from one port to another of france, or her allies, or any other country with which great britain might not freely trade. by this order, the pretensions of england, heretofore disclaimed by every other power, to prohibit neutrals disposing of parts of their cargoes at different ports of the same enemy, is revived, and with vast accumulation of injury. every enemy, however great the number, or distant from each other, is considered one, and the like trade, even with powers at peace with england, who, from motives of policy, had excluded or restrained her commerce was also prohibited. in this act, the british government evidently disclaimed all regard for neutral rights. aware that the measures authorized by it could find no pretext in any belligerent right, none was urged. to prohibit the sale of our produce, consisting of innocent articles, in any port of a belligerent, not blockaded; to consider every belligerent as one, and subject neutrals to the same restraints with all as if there was but one, were bold encroachments. but to restrain, or in any manner interfere with our commerce with neutral nations, with whom great britain was at peace, and against whom she had no justifiable cause of war, for the sole reason that they restrained or excluded from their ports her commerce, was utterly incompatible with the pacific relations subsisting between the two countries. "we proceed to bring into view the british order in council of november , , which superseded every other order, and consummated that system of hostility on the commerce of the united states, which has been since so steadily pursued. by this order all france and her allies, and every other country at war with great britain, or with which she was not at war, from which the british flag was excluded, and all the colonies of her enemies, were subject to the same restrictions as if they were actually blockaded in the most strict and rigorous manner; and all trade in articles, the produce and manufacture of the said countries and colonies, and the vessels engaged in it, were subjected to capture and condemnation as lawful prize. to this order certain exceptions were made, which we forbear to notice, because they were not adopted from a regard to neutral rights, but were dictated by policy, to promote the commerce of england, and so far as they related to neutral powers, were said to emanate from the clemency of the british government. "it would be superfluous in your committee to state, that, by this order, the british government declared direct and positive war against the united states. the dominion of the ocean was completely usurped by it, all commerce forbidden, and every flag driven from it, or subjected to capture and condemnation, which did not subserve the policy of the british government, by paying it a tribute, and sailing under its sanction. from this period, the united states have incurred the heaviest losses, and most mortifying humiliations. they have borne the calamities of war without retorting them on its authors. "so far your committee has presented to the view of the house the aggressions which have been committed, under the authority of the british government, on the commerce of the united states. we will now proceed to other wrongs, which have been still more severely felt. among these is the impressment of our seamen, a practice which has been unceasingly maintained by great britain in the wars to which she has been a party since our revolution. your committee cannot convey in adequate terms the deep sense which they entertain of the injustice and oppression of this proceeding. under the pretext of impressing british seaman, our fellow-citizens are seized in british ports, on the high seas, and in every other quarter to which the british power extends; are taken on board british men-of-war, and compelled to serve there as british subjects. in this mode our citizens are wantonly snatched from their country and their families; deprived of their liberty, and doomed to an ignominious and slavish bondage; compelled to fight the battles of a foreign country, and often to perish in them. our flag has given them no protection; it has been unceasingly violated, and our vessels exposed to dangers by the loss of the men taken from them. your committee need not remark that, while this practice is continued, it is impossible for the united states to consider themselves an independent nation. every new case is a new proof of their degradation. its continuance is the more unjustifiable, because the united states have repeatedly proposed to the british government an arrangement which would secure to it the control of its own people. an exemption of the citizens of the united states from this degrading oppression, and their flag from violation, is all that they have sought. "this lawless waste of our trade, and equally unlawful imprisonment of our seamen, have been much aggravated by the insults and indignities attending them. under the pretext of blockading the harbors of france and her allies, british squadrons have been stationed on our own coast, to watch and annoy our own trade. to give effect to the blockade of european ports, the ports and harbors of the united states have been blockaded. in executing these orders of the british government, or in obeying the spirit which was known to animate it, the commanders of these squadrons have encroached on our jurisdiction, seized our vessels, and carried into effect impressments within our limits, and done other acts of great injustice, violence, and oppression. the united states have seen, with mingled indignation and surprise, that these acts, instead of procuring to the perpetrators the punishment due to unauthorized crimes, have not failed to recommend them to the favor of their government. "whether the british government has contributed by active measures to excite against us the hostility of the savage tribes on our frontiers, your committee are not disposed to occupy much time in investigating. certain indications of general notoriety may supply the place of authentic documents, though these have not been wanting to establish the fact in some instances. it is known that symptoms of british hostility towards the united states have never failed to produce corresponding symptoms among those tribes. it is also well known that, on all such occasions, abundant supplies of the ordinary munitions of war have been afforded by the agents of british commercial companies, and even from british garrisons, wherewith they were enabled to commence that system of savage warfare on our frontiers, which has been at all times indiscriminate in its effect, on all ages, sexes, and conditions, and so revolting to humanity. "your committee would be much gratified if they could close here the detail of british wrongs; but it is their duty to recite another act of still greater malignity than any of those which have been already brought to your view. the attempt to dismember our union, and overthrow our excellent constitution, by a secret mission, the object of which was to foment discontents and excite insurrection against the constituted authorities and laws of the nation, as lately disclosed by the agent employed in it, affords full proof that there is no bound to the hostility of the british government towards the united states; no act, however unjustifiable, which it would not commit to accomplish their ruin. this attempt excites the greater horror, from the consideration that it was made while the united states and great britain were at peace, and an amicable negotiation was depending between them for the accommodation of their differences, through public ministers, regularly authorized for the purpose. "the united states have beheld, with unexampled forbearance, this continued series of hostile encroachments on their rights and interests, in the hope that, yielding to the force of friendly remonstrances, often repeated, the british government might adopt a more just policy towards them; but that hope no longer exists. they have, also, weighed impartially the reasons which have been urged by the british government in vindication of those encroachments, and found in them neither justification nor apology. "the british government has alleged, in vindication of the orders in council, that they were resorted to as a retaliation on france for similar aggressions committed by her on our neutral trade with the british dominions. but how has this plea been supported? the dates of british and french aggressions are well known to the world. their origin and progress have been marked with too wide and destructive a waste of the property of our fellow-citizens to have been forgotten. the decree of berlin, of november st, , was the first aggression of france in the present war. eighteen months had then elapsed after the attack made by great britain on our neutral trade with the colonies of france and her allies, and six months from the date of the proclamation of may, . even on the th of january, , the date of the first british order in council, so short a term had elapsed after the berlin decree, that it was hardly possible that the intelligence of it should have reached the united states. a retaliation which is to produce its effect, by operating on a neutral power, ought not to be resorted to till the neutral had justified it by a culpable acquiescence in the unlawful act of the other belligerent. it ought to be delayed until after sufficient time had been allowed to the neutral to remonstrate against the measures complained of, to receive an answer, and to act on it, which had not been done in the present instance. and, when the order of november th was issued, it is well known that a minister of france had declared to the minister plenipotentiary of the united states at paris, that it was not intended that the decree of berlin should apply to the united states. it is equally well known, that no american vessel had then been condemned under it, or seizure been made, with which the british government was acquainted. the facts prove incontestably, that the measures of france, however unjustifiable in themselves, were nothing more than a pretext for those of england. and of the insufficiency of that pretext, ample proof has already been afforded by the british government itself, and in the most impressive form. although it was declared that the orders in council were retaliatory on france for her decrees, it was also declared, and in the orders themselves, that, owing to the superiority of the british navy, by which the fleets of france and her allies were confined within their own ports, the french decrees were considered only as empty threats. "it is no justification of the wrongs of one power, that the like were committed by another; nor ought the fact, if true, to have been urged by either, as it could afford no proof of its love of justice, of its magnanimity, or even of its courage. it is more worthy the government of a great nation to relieve than to assail the injured. nor can a repetition of the wrongs by another power repair the violated rights or wounded honor of the injured party. an utter inability alone to resist could justify a quiet surrender of our rights, and degrading submission to the will of others. to that condition the united states are not reduced, nor do they fear it. that they ever consented to discuss with either power the misconduct of the other, is a proof of their love of peace, of their moderation, and of the hope which they still indulged, that friendly appeals to just and generous sentiments would not be made to them in vain. but the motive was mistaken, if their forbearance was imputed either to the want of a just sensibility to their wrongs, or a determination, if suitable redress was not obtained, to resent them. the time has now arrived when this system of reasoning must cease. it would be insulting to repeat it. it would be degrading to hear it. the united states must act as an independent nation, and assert their rights, and avenge their wrongs, according to their own estimate of them, with the party who commits them, holding it responsible for its misdeeds, unmitigated by those of another. "for the difference made between great britain and france, by the application of the non-importation act against england only, the motive has been already too often explained, and is too well known to require further illustration. in the commercial restrictions to which the united states resorted as an evidence of their sensibility, and a mild retaliation of their wrongs, they invariably placed both powers on the same footing, holding out to each, in respect to itself, the same accommodation, in case it accepted the condition offered, and, in respect to the other, the same restraint if it refused. had the british government confirmed the arrangements which was entered into with the british minister in , and france maintained her decrees, with france would the united states have had to resist, with the firmness belonging to their character, the continued violation of their rights. the committee do not hesitate to declare, that france has greatly injured the united states, and that satisfactory reparation has not yet been made for many of those injuries. but that is a concern which the united states will look to and settle for themselves. the high character of the american people is a sufficient pledge to the world that they will not fail to settle it, on conditions which they have a right to claim. "more recently, the true policy of the british government towards the united states, has been completely unfolded. it has been publicly declared by those in power, that the orders in council should not be repealed until the french government had revoked all its internal restraints on the british commerce; and that the trade of the united states with france and her allies, should be prohibited, until great britain was also allowed to trade with them. by this declaration, it appears that, to satisfy the pretensions of the british government, the united states must join great britain in the war with france, and prosecute the war until france should be subdued; for without her subjugation, it were in vain to presume on such a concession. the hostility of the british government to these states has been still further disclosed. it has been made manifest that the united states are considered by it as the commercial rival of great britain, and that their prosperity and growth are incompatible with her welfare. when all these circumstances are taken into consideration, it is impossible for your committee to doubt the motives which have governed the british ministry in all its measures towards the united states since the year . equally it is impossible to doubt, longer, the course which the united states ought to pursue towards great britain. "from this review of the multiplied wrongs of the british government since the commencement of the present war, it must be evident to the impartial world, that the contest which is now forced on the united states, is radically a contest for their sovereignty and independence. your committee will not enlarge on any of the injuries, however great, which have had a transitory effect. they wish to call the attention of the house to those of a permanent nature only, which intrench so deeply on our most important rights, and wound so extensively and vitally our best interests, as could not fail to deprive the united states of the principal advantages of their revolution, if submitted to. the control of our commerce by great britain, in regulating, at pleasure, and expelling it almost from the ocean; the oppressive manner in which these regulations have been carried into effect, by seizing and confiscating such of our vessels, with their cargoes, as were said to have violated her edicts, often without previous warning of their danger; the impressment of our citizens from on board our own vessels on the high seas, and elsewhere, and holding them in bondage till it suited the convenience of their oppressors to deliver them up; are encroachments of that high and dangerous tendency, which could not fail to produce that pernicious effect; nor would these be the only consequences that would result from it. the british government might, for a while, be satisfied with the ascendency thus gained over us, but its pretensions would soon increase. the proof which so complete and disgraceful a submission to its authority would afford of our degeneracy, could not fail to inspire confidence, that there was no limit to which its usurpations, and our degradation, might not be carried. "your committee, believing that the free-born sons of america are worthy to enjoy the liberty which their fathers purchased at the price of so much blood and treasure, and seeing in the measures adopted by great britain, a course commenced and persisted in, which must lead to a loss of national character and independence, feel no hesitation in advising resistance by force; in which the americans of the present day will prove to the enemy and to the world, that we have not only inherited that liberty which our fathers gave us, but also the will and power to maintain it. relying on the patriotism of the nation, and confidently trusting that the lord of hosts will go with us to battle in the righteous cause, and crown our efforts with success, your committee recommend an immediate appeal to arms." on motion of mr. mitchell, the doors were then closed, and the house sat with doors closed the remainder of the day's sitting. a motion was then made by mr. randolph that the proceedings upon the said message of the president be had and conducted with open doors; and the question thereon being taken, it was determined in the negative--yeas , nays . on motion of mr. calhoun, the said report was ordered to lie on the table. _declaration of war._ on a motion made, and leave given, mr. calhoun, from the same committee, presented a bill declaring war between great britain and her dependencies and the united states and their territories; which was read the first time; and opposition being made thereto by mr. randolph, the question was taken in the form prescribed by the rules and orders of the house, to wit: "shall the bill be rejected?" and determined in the negative--yeas, , nays, . the bill was then read the second time, and committed to a committee of the whole to-day. the house resolved itself into a committee of the whole house on the said bill; and, after some time spent therein, mr. speaker resumed the chair, and mr. bassett reported that the committee had had the said bill under consideration, and made some progress therein, and had directed him to ask leave to sit again. _ordered_, that the committee of the whole house have leave to sit again on the said bill. and then the house adjourned until to-morrow morning eleven o'clock. thursday, june . a motion was made by mr. milnor that the doors of the house be now opened; and was determined in the negative. the house then resolved itself into a committee of the whole house on the bill declaring war between great britain and her dependencies and the united states and their territories; and after some time spent therein, the speaker resumed the chair, and mr. bassett reported that the committee had had the said bill under consideration, and made no amendment thereto. a motion was then made by mr. quincy to amend the said bill, by adding thereto a new section, as follows: "sec. ----. _and be it further enacted_, that, from and after the passage of this act, the act, entitled 'an act concerning the commercial intercourse between the united states and great britain and france and their dependencies, and for other purposes,' passed the first day of may, one thousand eight hundred and ten; and, also, the act, entitled 'an act supplementary to the act, entitled "an act concerning the commercial intercourse between the united states and great britain and france and their dependencies, and for other purposes,"' passed the second day of march, one thousand eight hundred and eleven; and, also, the act, entitled 'an act laying an embargo on all ships and vessels in the ports and harbors of the united states for a limited time,' passed the fourth day of april, one thousand eight hundred and twelve, be, and the same hereby are, repealed." a motion was thereupon made by mr. nelson, that the bill and the proposed amendment be recommitted to a committee of the whole house: and the question thereon being taken, it was determined in the negative. the question was then taken on the amendment proposed by mr. quincy; and determined in the negative--yeas , nays . no other amendment being proposed to the said bill, the question was taken that it be engrossed, and read the third time; and passed in the affirmative--yeas , nays , as follows: yeas.--willis alston, jr., william anderson, stevenson archer, david bard, burwell bassett, william w. bibb, william blackledge, robert brown, william a. burwell, william butler, john c. calhoun, francis carr, langdon cheves, james cochran, john clopton, lewis condict, william crawford, roger davis, john dawson, joseph desha, samuel dinsmoor, elias earle, william findlay, james fisk, thomas gholson, peterson goodwyn, isaiah l. green, felix grundy, bolling hall, obed hall, john a. harper, aylett hawes, john m. hyneman, richard m. johnson, joseph kent, william r. king, abner lacock, joseph lefevre, peter little, wm. lowndes, aaron lyle, nathaniel macon, thomas moore, william mccoy, samuel mckee, alexander mckim, samuel l. mitchill, james morgan, jeremiah morrow, hugh nelson, anthony new, thomas newton, stephen ormsby, israel pickens, william piper, james pleasants, jr., benjamin pond, william m. richardson, samuel ringgold, john rhea, john roane, jonathan roberts, ebenezer sage, ebenezer seaver, john sevier, adam seybert, samuel shaw, george smith, john smith, william strong, john taliaferro, george m. troup, charles turner, jr., robert whitehill, david r. williams, william widgery, robert wright, and richard wynn,. nays.--john baker, josiah bartlett, harmanus bleecker, adam boyd, james breckenridge, elijah brigham, epaphroditus champion, martin chittenden, thomas b. cooke, john davenport, jr., william ely, james emott, asa fitch, thomas r. gold, charles goldsborough, jacob hufty, richard jackson, jr., philip b. key, lyman law, joseph lewis, jr., george c. maxwell, archibald mcbryde, arunah metcalf, james milnor, jonathan o. mosely, thomas newton, joseph pearson, timothy pitkin, jr., elisha r. potter, josiah quincy, john randolph, william reed, henry ridgely, william rodman, richard stanford, philip stuart, lewis b. sturges, george sullivan, samuel taggart, benjamin tallmadge, uri tracy, pierre van cortlandt, jr., laban wheaton, leonard white, and thomas wilson. _ordered_, that the said bill be read the third time to-day. the said bill was engrossed, and read the third time accordingly, and the question stated that the same do pass: whereupon, a motion was made by mr. randolph, that the farther consideration of the said bill be postponed until the first monday in october next; and the question thereon being taken, it was determined in the negative--yeas , nays . a motion was then made by mr. stow, that the farther consideration of the said bill be postponed until to-morrow; and the question thereon being taken, it was determined in the negative--yeas , nays . a motion was then made by mr. goldsborough, that the house do now adjourn; and the question thereon being taken, it was determined in the negative--yeas , nays . the question was then taken, that the said bill do pass; and resolved in the affirmative--yeas , nays , as follows: yeas.--willis alston, jr., william anderson, stevenson archer, daniel avery, david bard, burwell bassett, william w. bibb, william blackledge, robert brown, william a. burwell, william butler, john c. calhoun, francis carr, langdon cheves, james cochran, john clopton, lewis condict, william crawford, roger davis, john dawson, joseph desha, samuel dinsmoor, elias earle, william findlay, james fisk, thomas gholson, peterson goodwyn, isaiah l. green, felix grundy, boiling hall, obed hall, john a. harper, aylett hawes, john m. hyneman, richard m. johnson, joseph kent, william r. king, abner lacock, joseph lefevre, peter little, william lowndes, aaron lyle, nathaniel macon, thomas moore, william mccoy, samuel mckee, alexander mckim, james morgan, jeremiah morrow, hugh nelson, anthony new, thomas newton, stephen ormsby, israel pickens, william piper, james pleasants, jr., benjamin pond, william m. richardson, samuel ringgold, john rhea, john roane, jonathan roberts, ebenezer sage, ebenezer seaver, john sevier, adam seybert, samuel shaw, john smilie, george smith, john smith, william strong, john taliaferro, george m. troup, charles turner, jr., robert whitehill, david r. williams, william widgery, robert wright, and richard wynn. nays.--john baker, josiah bartlett, harmanus bleecker, adam boyd, james breckenridge, elijah brigham, epaphroditus champion, martin chittenden, thomas b. cooke, john davenport, jr., william ely, james emott, asa fitch, thomas r. gold, chas. goldsborough, jacob hufty, richard jackson, jr., philip b. key, lyman law, joseph lewis, jr., george c. maxwell, archibald mcbryde, arunah metcalf, james milnor, samuel l. mitchill, jonathan o. mosely, thomas newbold, joseph pearson, timothy pitkin, jr., elisha r. potter, josiah quincy, john randolph, william reed, henry m. ridgely, william rodman, thomas sammons, richard stanford, philip stuart, silas stow, lewis b. sturges, george sullivan, samuel taggart, benjamin tallmadge, peleg tallman, uri tracy, pierre van cortlandt, jr., laban wheaton, leonard white, and thomas wilson. _ordered_, that the title be, "an act declaring war between great britain and her dependencies, and the united states and their territories." mr. macon and mr. findlay were appointed a committee to carry the bill entitled "an act declaring war between great britain and her dependencies, and the united states and their territories," to the senate, and to inform them that the house of representatives have passed the same, in confidence, and to request their concurrence therein. thursday, june . _bill declaring war._ a confidential message was received from the senate, by a committee of that body appointed for the purpose, consisting of mr. anderson and mr. varnum, notifying the house that the senate have passed the bill, entitled "an act declaring war between great britain and her dependencies, and the united states and their territories," with amendments; in which they desire the concurrence of the house. the house proceeded to consider the said amendments; when a motion was made by mr. sheffey, that the said bill and amendments be postponed indefinitely. a motion was then made by mr. milnor, that the said bill and amendments do lie on the table; and the question thereon being taken, it passed in the affirmative--yeas , nays . the house resumed the consideration of the amendments of the senate to the aforesaid bill; when the question recurred on the motion of mr. sheffey, and, being taken, it was determined in the negative--yeas , nays , as follows: yeas.--john baker, abijah bigelow, harmanus bleecker, james breckenridge, elijah brigham, epaphroditus champion, martin chittenden, thomas b. cooke, john davenport, jr., william ely, james emott, asa fitch, thomas r. gold, charles goldsborough, edwin gray, jacob hufty, richard jackson, jr., philip b. key, lyman law, joseph lewis, jr., archibald mcbryde, james milnor, jonathan o. mosely, joseph pearson, timothy pitkin, jr., elisha r. potter, josiah quincy, john randolph, william reed, henry m. ridgely, william rodman, daniel sheffey, richard stanford, philip stuart, silas stow, lewis b. sturges, george sullivan, samuel taggart, benjamin tallmadge, uri tracy, pierre van cortlandt, jr., laban wheaton, leonard white, and thomas wilson. nays.--willis alston, jr., william anderson, stevenson archer, daniel avery, david bard, josiah bartlett, burwell bassett, william w. bibb, william blackledge, adam boyd, robert brown, william a. burwell, william butler, john c. calhoun, francis carr, langdon cheves, james cochran, john clopton, lewis condict, william crawford, richard cutts, roger davis, john dawson, joseph desha, samuel dinsmoor, elias earle, william findlay, james fisk, meshack franklin, thomas gholson, peterson goodwyn, isaiah l. green, felix grundy, bolling hall, obed hall, john a. harper, aylett hawes, john m. hyneman, richard m. johnson, joseph kent, william r. king, abner lacock, joseph lefevre, peter little, william lowndes, aaron lyle, nathaniel macon, george c. maxwell, thomas moore, william mccoy, samuel mckee, alexander mckim, arunah metcalf, james morgan, jeremiah morrow, hugh nelson, anthony new, thomas newton, stephen ormsby, israel pickens, william piper, james pleasants, jr., benjamin pond, william m. richardson, samuel ringgold, john rhea, john roane, nathaniel roberts, ebenezer sage, ebenezer seaver, john sevier, adam seybert, samuel shaw, john smilie, george smith, john smith, wm. strong, john taliaferro, george m. troup, charles turner, jr., robert whitehill, david r. williams, william widgery, robert wright, and richard wynn. a motion was made by mr. randolph, that the said bill and amendments be postponed until the first monday in october next. and the question thereon being taken, it was determined in the negative--yeas , nays . a motion was then made by mr. randolph, that the said bill and amendments be postponed until the first monday in july next. and the question thereon being taken, it was determined in the negative--yeas , nays . the said amendments were then concurred in by the house. and mr. macon and mr. findlay were appointed a committee to inform the senate of the concurrence of the house in the said amendments. mr. crawford, from the joint committee for enrolled bills, reported that the committee had examined the said bill, and had found the same to be truly enrolled; when the speaker signed the said bill, and the committee of enrollment were ordered to take it to the senate, for the signature of their president. shortly after, mr. crawford, from the same committee, reported that the committee had presented the said bill to the president of the united states, for his approbation, and that they were instructed by the president to inform the two houses that he had approved and signed the same. on motion of mr. calhoun, the injunction of secrecy was removed from so much of the journals as relates to the president's message of the st instant, with the proceedings thereon. and then the house adjourned until to-morrow morning, o'clock. friday, june . _occupation of florida._ on motion of mr. troup, _resolved_, that the committee to whom was referred so much of the president's message, at the commencement of the session, as relates to the spanish american colonies, be instructed to inquire into the expediency of authorizing the president of the united states to occupy east and west florida without delay. and then the doors were opened. monday, june . on motion made, and leave given, mr. mitchill, from the committee appointed on that part of the president's message, at the commencement of the session, which relates to spanish american colonies, presented a bill authorizing the president of the united states to take possession of a tract of country lying south of the mississippi territory, of the state georgia, and for other purposes; which was read the first time. when a question was taken whether the subject matter of the said bill required secrecy; and passed in the affirmative--yeas , nays . the said bill was then read the second time, and committed to a committee of the whole to-morrow; and the doors were then opened. thursday, june . the house resolved itself into a committee of the whole on the bill authorizing the president to take possession of a tract of country lying south of the mississippi territory, of the state of georgia, and for other purposes; and, after some time spent therein, the speaker resumed the chair, and mr. lewis reported that the committee had had the said bill under consideration, and made an amendment thereto; which he delivered in at the clerk's table, where it was again read, and concurred in by the house. the question was then taken that the said bill be engrossed, and read the third time; and passed in the affirmative--yeas , nays , as follows: yeas.--william anderson, stevenson archer, burwell bassett, william w. bibb, william blackledge, robert brown, william butler, john c. calhoun, francis carr, matthew clay, james cochran, john clopton, lewis condict, william crawford, richard cutts, roger davis, john dawson, joseph desha, samuel dinsmoor, william findlay, james fisk, meshack franklin, thomas gholson, peterson goodwyn, isaiah l. green, felix grundy, bolling hall, obed hall, john a. harper, john m. hyneman, richard m. johnson, joseph kent, william r. king, abner lacock, peter little, aaron lyle, nathaniel macon, george c. maxwell, thomas moore, william mccoy, alexander mckim, samuel l. mitchill, james morgan, jeremiah morrow, hugh nelson, anthony new, thomas newton, stephen ormsby, israel pickens, william piper, samuel ringgold, john rhea, john roane, jonathan roberts, ebenezer sage, ebenezer seaver, john sevier, samuel shaw, john smilie, george smith, john smith, william strong, john taliaferro, george m. troup, charles turner, jr., robert whitehill, david r. williams, william widgery, and robert wright. nays.--ezekiel bacon, john baker, abijah bigelow, harmanus bleecker, james breckenridge, elijah brigham, william a. burwell, epaphroditus champpion, langdon cheves, martin chittenden, thomas b. cooke, john davenport, jr., william ely, james emott, asa fitch, thomas r. gold, charles goldsborough, edwin gray, aylett hawes, jacob hufty, richard jackson, jr., philip b. key, lyman law, joseph lewis, jr., william lowndes, archibald mcbryde, jas. milnor, jonathan o. mosely, joseph pearson, timothy pitkin jr., james pleasants, jr., elisha r. potter, josiah quincy, john randolph, william m. richardson, henry m. ridgely, william rodman, thomas sammons, adam seybert, daniel sheffey, richard stanford, philip stuart, lewis b. sturges, samuel taggart, pierre van cortlandt, jr., laban wheaton, leonard white, and thomas wilson. _ordered_, that the said bill be read the third time to-day. the said bill was engrossed, and read the third time accordingly: when a motion was made by mr. ridgely, that the same be postponed until monday next; and the question being taken, it was determined in the negative. the question was then taken that the said bill do pass; and resolved in the affirmative. _ordered_, that the title be, "an act authorizing the president to take possession of a tract of country lying south of the mississippi territory and of the state of georgia, and for other purposes." mr. mitchill and mr. troup were appointed a committee to carry the said bill to the senate, and inform them that this house have passed the same, in confidence, and request their concurrence therein; and the doors were then opened. friday, june . a motion was made by mr. randolph, that the injunction of secrecy imposed by this house on the bill, entitled "an act authorizing the president to take possession of a tract of country lying south of the mississippi territory and of the state of georgia, and for other purposes," together with the injunction of secrecy imposed upon the proceedings of the said bill, be taken off: and, on the question that the house do now proceed to the consideration of the said motion, it was determined in the negative. a motion was then made by mr. ridgely, that the house do come to the following resolution: _resolved_, that the president of the united states be requested, if, in his opinion, it be compatible with the public interest, to lay before this house, confidentially or otherwise, full information of all the proceedings that have been had under and by virtue of the act of congress, entitled "an act to enable the president of the united states, under certain contingencies, to take possession of the country lying east of the river perdido, and south of the state of georgia and the mississippi territory, and for other purposes;" and also copies of all instructions that may have been issued by the executive branch of this government under the said act. and on the question that the house do now proceed to the consideration of the said resolution, it passed in the affirmative--yeas , nays . the question was then taken that the said resolution do pass; and resolved in the affirmative--yeas , nays . wednesday, july . mr. ridgely, from the committee appointed, on the th ultimo, to present a resolution to the president of the united states, reported that the committee had performed that service, and that the president answered, that a due attention should be paid to the subject. _occupation of florida._ a message was then received from the president of the united states, by mr. coles, his secretary, who delivered in the same, and withdrew. the message was read, and is as follows: _to the house of representatives of the united states:_ in compliance with the resolution of the house of representatives, of the twenty-sixth of june, i transmit the information contained in the documents herewith enclosed. james madison. july , . the said documents were read; and the doors were then opened. [the following letters, forming a part of the documents accompanying the above message of the president of the united states, were ordered to be published by the house on the th instant.] _from the secretary of state to general george matthews and colonel john mckee, dated_ department of state, _january , _. the president of the united states having appointed you, jointly and severally, commissioners for carrying into effect certain provisions of an act of congress (a copy of which is enclosed) relative to the portion of the floridas situated to the east of the perdido, you will repair to that quarter with all possible expedition, concealing from general observation the trust committed to you, with that discretion with which the delicacy and importance of the undertaking require. should you find governor folch, or the local authority existing there, inclined to surrender, in an amicable manner, the possession of the remaining portion or portions of west florida now held by him in the name of the spanish monarchy, you are to accept, in behalf of the united states, the abdication of his, or of the other existing authority, and the jurisdiction of the country over which it extends. and, should a stipulation be insisted on for the redelivery of the country, at a future period, you may, engage for such redelivery to the lawful sovereign. the debts clearly due from the spanish government to the people of the territory, surrendered, may, if insisted on, be assumed within reasonable limits, and under specified descriptions, to be settled hereafter as a claim against spain in an adjustment of our affairs with her. you may also guarantee, in the name of the united states, the confirmation of all such titles to land as are clearly sanctioned by spanish laws; and spanish civil functionaries, where no special reasons may require changes, are to be permitted to remain in office, with the assurance of a continuation of the prevailing laws, with such alterations only as may be necessarily required in the new situation of the country. if it should be required, and be found necessary, you may agree to advance, as above, a reasonable sum for the transportation of the spanish troops. these directions are adapted to one of the contingencies specified in the act of congress, namely, the amicable surrender of the possession of the territory by the local ruling authority. but, should the arrangement contemplated by the statute, not be made, and should there be room to entertain a suspicion of an existing design in any foreign power to occupy the country in question, you are to keep yourselves on the alert, and on the first undoubted manifestation of the approach of a force for that purpose, you will exercise with promptness and vigor, the powers with which you are invested by the president to preoccupy by force, the territory, to the entire exclusion of any armament that may be advancing to take possession of it. in this event you will exercise a sound discretion in applying the powers given with respect to debts, titles to land, civil officers, and the continuation of the spanish laws; taking care to commit the government on no point further than may be necessary. and should any spanish military force remain within the country, after the occupancy by the troops of the united states, you may, in such case, aid in their removal from the same. the universal toleration which the laws of the united states assure to every religious persuasion, will not escape you as an argument for quieting the minds of uninformed individuals, who may entertain fears on that head. the conduct you are to pursue in regard to east florida, must be regulated by the dictates of your own judgments, on a close view and accurate knowledge of the precise state of things there, and of the real disposition of the spanish government, always recurring to the present instruction as the paramount rule of your proceedings. should you discover an inclination in the governor of east florida, or in the existing local authority, amicably to surrender that province into the possession of the united states, you are to accept it on the same terms that are prescribed by these instructions in relation to west florida. and, in case of the actual appearance of any attempt to take possession by a foreign power you will pursue the same effective measures for the occupation of the territory, and for the exclusion of foreign force, as you are directed to pursue with respect to the country east of the perdido, forming, at this time, the extent of governor folch's jurisdiction. if you should under these instructions, obtain possession of mobile, you will lose no time in informing governor claiborne thereof, with a request that he will, without delay, take the necessary steps for the occupation of the same. all ordnance and military stores that may be found in the territory must be held as the property of the spanish government, to be accounted for hereafter to the proper authority; and you will not fail to transmit an inventory thereof to this department. if, in the execution of any part of these instructions, you should need the aid of a military force, the same will be afforded you upon your application to the commanding officer of the troops of the united states on that station, or to the commanding officer of the nearest post, in virtue of orders which have been issued from the war department. and, in case you should moreover need naval assistance, you will receive the same upon your application to the naval commander, in pursuance of orders from the navy department. from the treasury department will be issued the necessary instructions in relation to imposts and duties, and to the slave ships whose arrival is apprehended. the president, relying upon your discretion, authorizes you to draw upon the collectors of orleans and savannah for such sums as may be necessary to defraying unavoidable expenses that may be incurred in the execution of these instructions, not exceeding, in your drafts on new orleans, eight thousand dollars, and in your drafts on savannah two thousand dollars, without further authority; of which expenses you will hereafter exhibit a detailed account, duly supported by satisfactory vouchers. postscript.--if governor folch should unexpectedly require and pertinaciously insist that the stipulation for the redelivery of the territory should also include that portion of the country which is situated west of the river perdido, you are, in yielding to such demand, only to use general words that may by implication comprehend that portion of the country; but, at the same time, you are expressly to provide, that such stipulation shall not, in any way, impair or affect the right or title of the united states to the same. _the secretary of state to general matthews._ department of state, _april_ , . sir,--i have had the honor to receive your letter of the fourteenth of march, and have now to communicate to you the sentiments of the president, on the very interesting subject to which it relates. i am sorry to have to state that the measures which you appear to have adopted for obtaining possession of amelia island, and other parts of east florida, are not authorized by the law of the united states, or the instructions founded on it, under which you have acted. you were authorized by the law, a copy of which was communicated to you, and by your instructions, which are strictly conformable to it, to take possession of east florida, only in case one of the following contingencies should happen: either that the governor or other existing local authority should be disposed to place it amicably in the hands of the united states, or that an attempt should be made to take possession of it by a foreign power. should the first contingency happen, it would follow, that the arrangement being amicable, would require no force on the part of the united states to carry into effect. it was only in case of an attempt to take it by a foreign power that force could be necessary, in which event only were you authorized to avail yourself of it. in either of these contingencies was it the policy of the law, or purpose of the executive, to wrest the province forcibly from spain; but only to occupy it with a view to prevent its falling into the hands of any foreign power, and to hold that pledge, under the existing peculiarity of the circumstances of the spanish monarchy, for a just result in an amicable negotiation with spain. had the united states been disposed to proceed otherwise, that intention would have been manifested by a change of the law, and suitable measures to carry it into effect. and as it was in their power to take possession whenever they might think that circumstances authorized and required it, it would be more to be regretted, if possession should be effected by any means irregular in themselves, and subjecting the government of the united states to unmerited censure. the views of the executive respecting east florida, are further illustrated by your instructions as to west florida. although the united states have thought that they had a good title to the latter province, they did not take possession until after the spanish authority had been subverted by a revolutionary proceeding, and the contingency of the country being thrown into foreign hands, had forced itself into view. nor did they then, nor have they since, dispossessed the spanish troops of the post which they occupied. if they did not think proper to take possession by force, of a province to which they thought they were justly entitled, it could not be presumed that they should intend to act differently, in respect to one to which they had not such a claim. i may add, that, although due sensibility has been always felt for the injuries which were received from the spanish government in the last war, the present situation of spain has been a motive for a moderate and pacific policy towards her. in communicating to you these sentiments of the executive on the measures you have lately adopted for taking possession of east florida, i add, with pleasure, that the utmost confidence is reposed in your integrity and zeal to promote the welfare of your country. to that zeal the error into which you have fallen, is imputed. but, in consideration of the part which you have taken, which differs so essentially from that contemplated and authorized by the government, and contradicts so entirely the principle on which it has uniformly and sincerely acted, you will be sensible of the necessity of discontinuing the service in which you have been employed. you will, therefore, consider your powers as revoked on the receipt of this letter. the new duties to be performed will be transferred to the governor of georgia, to whom instructions will be given on all the circumstances to which it may be proper, at the present juncture, to call his attention. i am, &c., general matthews, &c. _the secretary of state to his excellency d. b. mitchell, the governor of georgia._ department of state, _april , _. sir,--the president is desirous of availing the public of your services, in a concern of much delicacy and of high importance to the united states. circumstances with which you are in some degree acquainted, but which will be fully explained by the enclosed papers, have made it necessary to revoke the powers heretofore committed to general matthews, and to commit them to you. the president is persuaded that you will not hesitate to undertake a trust so important to the nation, and peculiarly to the state of georgia. he is the more confident in this belief, from the consideration that these new duties may be discharged without interfering, as he presumes, with those of the station which you now hold. by the act of the fifteenth of january, one thousand eight hundred and eleven, you will observe that it was not contemplated to take possession of east florida, or any part thereof, unless it should be surrendered to the united states amicably by the governor, or other local authority of the province, or against an attempt to take possession of it by a foreign power: and you will also see that general matthews' instructions, of which a copy is likewise enclosed, correspond fully with the law. by the documents in possession of the government, it appears that neither of these contingencies have happened; that, instead of an amicable surrender by the governor, or other local authority, the troops of the united states have been used to dispossess the spanish authority by force. i forbear to dwell on the details of this transaction, because it is painful to recite them. by the letter to general matthews, which is enclosed, open for your perusal, you will fully comprehend the views of the government respecting the late transaction; and, by the law, the former instructions to the general, and the late letter now forwarded, you will be made acquainted with the course of conduct which it is expected of you to pursue in future, in discharging the duties heretofore enjoined on him. it is the desire of the president that you should turn your attention and direct your efforts, in the first instance, to the restoration of that state of things in the province which existed before the late transactions. the executive considers it proper to restore back to the spanish authorities, amelia island, and such other parts, if any, of east florida, as may have thus been taken from them. with this view, it will be necessary for you to communicate _directly_ with the governor or principal officer of spain in that province, and to act in harmony with him in the attainment of it. it is presumed that the arrangement will be easily and amicably made between you. i enclose you an order from the secretary of war to the commander of the troops of the united states to evacuate the country, when requested so to do by you, and to pay the same respect in future to your order in fulfilling the duties enjoined by the law, that he had been instructed to do to that of general matthews. in restoring to the spanish authorities amelia island, and such other parts of east florida as may have been taken possession of in the name of the united states, there is another object to which your particular attention will be due. in the measures lately adopted by general matthews to take possession of that territory, it is probable that much reliance has been placed, by the people who acted in it, on the countenance and support of the united states. it will be improper to expose these people to the resentment of the spanish authorities. it is not to be presumed that those authorities, in regaining possession of the territory, in this amicable mode, from the united states, will be disposed to indulge any such feeling towards them. you will, however, come to a full understanding with the spanish governor on this subject, and not fail to obtain from him the most explicit and satisfactory assurance respecting it. of this assurance you will duly apprise the parties interested, and of the confidence which you repose in it. it is hoped, that, on this delicate and very interesting point, the spanish governor will avail himself of the opportunity it presents to evince the friendly disposition of his government toward the united states. there is one other remaining circumstance only to which i wish to call your attention, and that relates to general matthews himself. his gallant and meritorious services in our revolution, and patriotic conduct since, have always been held in high estimation by the government. his errors, in this instance, are imputed altogether to his zeal to promote the welfare of his country; but they are of a nature to impose on the government the necessity of the measures now taken, in giving effect to which you will doubtless feel a disposition to consult, as far as may be, his personal sensibility. i have the honor to be, &c., james monroe. p. s.--should you find it impracticable to execute the duties designated above, in person, the president requests that you will be so good as to employ some very respectable character to represent you in it, to whom you are authorized to allow a similar compensation. it is hoped, however, that you may be able to attend to it in person, for reasons which i need not enter into. the expenses to which you may be exposed will be promptly paid to your draft on this department. _the secretary of state to d. b. mitchell, esq., governor of georgia._ department of state, _may_ , . sir,--i have had the honor to receive your letter of the second instant, from st. mary's, where you had arrived in discharge of the trust reposed in you by the president, in relation to east florida. my letter by mr. isaacs, has, i presume, substantially answered the most important of the queries submitted in your letter, but i will give to each a more distinct answer. by the law, of which a copy was forwarded to you, it is made the duty of the president to prevent the occupation of east florida by any foreign power. it follows that you are authorized to consider the entrance, or attempt to enter, especially under existing circumstances, of british troops, of any description, as the case contemplated by the law, and to use the proper means to defeat it. an instruction will be immediately forwarded to the commander of the naval force of the united states, in the neighborhood of east florida, to give you any assistance, in case of emergency, which you may think necessary, and require. it is not expected, if you find it proper to withdraw the troops, that you should interfere to compel the patriots to surrender the country, or any part of it, to the spanish authorities. the united states are responsible for their own conduct only, not for that of the inhabitants of east florida. indeed, in consequence of the comportment of the united states to the inhabitants, you have been already instructed not to withdraw the troops, unless you find that it may be done consistently with their safety, and to report to the government the result of your conferences with the spanish authorities, with your opinion of their views, holding in the mean time the ground occupied. in the present state of our affairs with great britain the course above pointed out is the more justifiable and proper. i have the honor to be, &c., james monroe. friday, july . a message was received from the senate, by mr. smith, of maryland, and mr. leib, a committee appointed for the purpose, notifying the house that the senate have rejected the bill, entitled "an act authorizing the president to take possession of a tract of country lying south of the mississippi territory and of the state of georgia, and for other purposes." monday, july . on motion of mr. bibb, _resolved_, that the injunction of secrecy, so far as concerns "an act to enable the president of the united states, under certain contingencies, to take possession of the country lying east of the perdido, and south of the state of georgia and the mississippi territory, and for other purposes," passed on the twelfth of january, one thousand eight hundred and eleven, and "a bill authorizing the president to take possession of a tract of country lying south of the mississippi territory and of the state of georgia, and for other purposes;" passed the twenty-fifth of june last, and the proceedings thereon, respectively, be removed. and, also, so far as relates to the following letters: two from the secretary of state to general g. matthews, one dated the twenty-sixth of january, one thousand eight hundred and eleven, and the other the fourth of april, one thousand eight hundred twelve and two from mr. monroe to general d. b. mitchell, one dated the tenth of april, the other the twenty-seventh of may, one thousand eight hundred and twelve. the doors were then opened. twelfth congress.--second session. begun at the city of washington, november , . proceedings in the senate. monday, november , . the second session of the twelfth congress commenced this day at the city of washington, conformably to the act passed at the last session, entitled "an act fixing the time for the next meeting of congress;" and the senate assembled in their chamber. present. nicholas gilman and charles cutts, from new hampshire. joseph b. varnum, from massachusetts. chauncey goodrich, from connecticut. jeremiah b. howell, from rhode island. jonathan robinson, from vermont. john lambert, from new jersey. michael leib, from pennsylvania. outerbridge horsey, from delaware. samuel smith, from maryland. jesse franklin and james turner, from north carolina. john gaillard, from south carolina. william h. crawford and charles tait, from georgia. george w. campbell, from tennessee. thos. worthington and alexander campbell, from ohio. there being no quorum, the senate adjourned till to-morrow. tuesday, november . andrew gregg, from the state of pennsylvania, and john taylor, from the state of south carolina, severally attended. william h. crawford, president _pro tempore_, resumed the chair. _ordered_, that the secretary acquaint the house of representatives that a quorum of the senate is assembled and ready to proceed to business. a message from the house of representatives informed the senate that a quorum of the house is assembled and ready to proceed to business. the house have appointed a committee on their part, jointly with such committee as may be appointed on the part of the senate, to wait on the president of the united states and notify him that a quorum of the two houses is assembled and ready to receive any communication that he may be pleased to make to them. the senate concurred in the appointment of a joint committee on their part, agreeably to the resolution last mentioned; and messrs. gaillard, and smith of maryland, were appointed the committee. a committee was appointed agreeably to the d rule for conducting business in the senate. messrs. leib, franklin, and gregg, are the committee. _resolved_, that each senator be supplied, during the present session, with three such newspapers printed in any of the states as he may choose, provided that the same be furnished at the usual rate for the annual charge of such papers: and provided, also, that if any senator shall choose to take any newspapers other than daily papers, he shall be supplied with as many such papers as shall not exceed the price of three daily papers. mr. gaillard reported from the joint committee, that they had waited on the president of the united states, and that the president had informed the committee that he would make a communication to the two houses at twelve o'clock to-morrow. wednesday, november . obadiah german, from the state of new york, took his seat in the senate. on motion by mr. leib, a committee of three members were appointed, who, with three members of the house of representatives, to be appointed by the said house, shall have the direction of the money appropriated to the purchase of books and maps for the use of the two houses of congress; and messrs. leib, tait, and campbell of tennessee, were appointed the committee on the part of the senate. _president's annual message._ the following message was received from the president of the united states: _fellow-citizens of the senate and house of representatives_: on our present meeting, it is my first duty to invite your attention to the providential favors which our country has experienced, in the unusual degree of health dispensed to its inhabitants, and in the rich abundance with which the earth has rewarded the labors bestowed on it. in the successful cultivation of other branches of industry, and in the progress of general improvement favorable to the national prosperity, there is just occasion, also, for our mutual congratulations and thankfulness. with these blessings are necessarily mingled the pressures and vicissitudes incident to the state of war into which the united states have been forced by the perseverance of a foreign power in its system of injustice and aggression. previous to its declaration, it was deemed proper, as a measure of precaution and forecast, that a considerable force should be placed in the michigan territory, with a general view to its security, and, in the event of war, to such operations in the uppermost canada as would intercept the hostile influence of great britain over the savages, obtain the command of the lake on which that part of canada borders, and maintain co-operating relations with such forces as might be most conveniently employed against other parts. brigadier general hull was charged with this provisional service; having under his command a body of troops composed of regulars and volunteers from the state of ohio. having reached his destination after his knowledge of the war, and possessing discretionary authority to act offensively, he passed into the neighboring territory of the enemy, with a prospect of easy and victorious progress. the expedition, nevertheless, terminated unfortunately, not only in a retreat to the town and fort of detroit, but in the surrender of both, and of the gallant corps commanded by that officer. the causes of this painful reverse will be investigated by a military tribunal. a distinguishing feature in the operations which preceded and followed this adverse event, is the use made by the enemy of the merciless savages under their influence. whilst the benevolent policy of the united states invariably recommended peace, and promoted civilization among that wretched portion of the human race; and was making exertions to dissuade them from taking either side in the war, the enemy has not scrupled to call to his aid their ruthless ferocity, armed with the horrors of those instruments of carnage and torture which are known to spare neither age nor sex. in this outrage against the laws of honorable war, and against the feelings sacred to humanity, the british commanders cannot resort to a plea of retaliation; for it is committed in the face of our example. they cannot mitigate it, by calling it a self-defence against men in arms; for it embraces the most shocking butcheries of defenceless families. nor can it be pretended that they are not answerable for the atrocities perpetrated; since the savages are employed with a knowledge, and even with menaces, that their fury could not be controlled. such is the spectacle which the deputed authorities of a nation, boasting its religion and morality, have not been restrained from presenting to an enlightened age. the misfortune of detroit was not, however, without a consoling effect. it was followed by signal proofs that the national spirit rises according to the pressure on it. the loss of an important post, and of the brave men surrendered with it, inspired every where new ardor and determination. in the states and districts least remote, it was no sooner known, than every citizen was ready to fly with his arms, at once, to protect his brethren against the blood-thirsty savages let loose by the enemy on an extensive frontier, and to convert a partial calamity into a source of invigorated efforts. this patriotic zeal, which it was necessary rather to limit than excite, has embodied an ample force from the states of kentucky and ohio, and from parts of pennsylvania and virginia. it is placed, with the addition of a few regulars, under the command of brigadier general harrison, who possesses the entire confidence of his fellow-soldiers, among whom are citizens, some of them volunteers in the ranks, not less distinguished by their political stations, than by their personal merits. the greater portion of this force is proceeding on its destination, towards the michigan territory, having succeeded in relieving an important frontier post, and in several incidental operations against hostile tribes of savages, rendered indispensable by the subserviency into which they had been seduced by the enemy; a seduction the more cruel, as it could not fail to impose a necessity of precautionary severities against those who yielded to it. at a recent date, an attack was made on a post of the enemy near niagara, by a detachment of the regular and other forces, under the command of major general van rensselaer, of the militia of the state of new york. the attack, it appears, was ordered, in compliance with the ardor of the troops, who executed it with distinguished gallantry, and were, for a time, victorious; but not receiving the expected support, they were compelled to yield to reinforcements of british regulars and savages. our loss has been considerable, and is deeply to be lamented. that of the enemy, less ascertained, will be the more felt, as it includes, among the killed, the commanding general, who was also governor of the province; and was sustained by veteran troops, from inexperienced soldiers, who must daily improve in the duties of the field. our expectation of gaining the command of the lakes, by the invasion of canada from detroit, having been disappointed, measures were instantly taken to provide, on them, a naval force superior to that of the enemy. from the talents and activity of the officer charged with this object, every thing that can be done may be expected. should the present season not admit of complete success, the progress made will insure, for the next, a naval ascendency, where it is essential to our permanent peace with, and control over, the savages. among the incidents to the measures of the war, i am constrained to advert to the refusal of the governors of massachusetts and connecticut to furnish the required detachments of militia towards the defence of the maritime frontier. the refusal was founded on a novel and unfortunate exposition of the provisions of the constitution relating to the militia. the correspondences which will be before you, contain the requisite information on the subject. it is obvious that, if the authority of the united states to call into service and command the militia for the public defence, can be thus frustrated, even in a state of declared war, and of course, under apprehensions of invasion preceding war, they are not one nation for the purpose most of all requiring it; and that the public safety may have no other resource, than in those large and permanent military establishments which are forbidden by the principles of our free government, and against the necessity of which the militia were meant to be a constitutional bulwark. on the coasts, and on the ocean, the war has been as successful as circumstances inseparable from its early stages could promise. our public ships and private cruisers, by their activity, and, where there was occasion, by their intrepidity, have made the enemy sensible of the difference between a reciprocity of captures, and the long confinement of them to their side. our trade, with little exception, has safely reached our ports; having been much favored in it by the course pursued by a squadron of our frigates, under the command of commodore rodgers. and in the instance in which skill and bravery were more particularly tried with those of the enemy, the american flag had an auspicious triumph. the frigate constitution, commanded by captain hull, after a close and short engagement, completely disabled and captured a british frigate; gaining for that officer, and all on board, a praise which cannot be too liberally bestowed; not merely for the victory actually achieved, but for that prompt and cool exertion of commanding talents, which, giving to courage its highest character, and to the force applied its full effect, proved that more could have been done in a contest requiring more. anxious to abridge the evils from which a state of war cannot be exempt, i lost no time after it was declared, in conveying to the british government the terms on which its progress might be arrested, without awaiting the delays of a formal and final pacification; and our chargé d'affaires at london was, at the same time, authorized to agree to an armistice founded upon them. these terms required that the orders in council should be repealed as they affected the united states, without a revival of blockades violating acknowledged rules; and that there should be an immediate discharge of american seamen from british ships, and a stop to impressment from american ships, with an understanding that an exclusion of the seamen of each nation from the ships of the other should be stipulated; and that the armistice should be improved into a definitive and comprehensive adjustment of depending controversies. although a repeal of the orders susceptible of explanations meeting the views of this government had taken place before this pacific advance was communicated to that of great britain, the advance was declined from an avowed repugnance to a suspension of the practice of impressments during the armistice, and without any intimation that the arrangement proposed, with respect to seamen, would be accepted. whether the subsequent communications from this government, affording an occasion for reconsidering the subject on the part of great britain, will be viewed in a more favorable light, or received in a more accommodating spirit, remains to be known. it would be unwise to relax our measures, in any respect, on a presumption of such a result. the documents from the department of state, which relate to this subject, will give a view also of the propositions for an armistice, which have been received here, one of them from the authorities at halifax and in canada, the other from the british government itself, through admiral warren; and of the grounds on which neither of them could be accepted. our affairs with france retain the posture which they held at my last communications to you. notwithstanding the authorized expectations of an early as well as favorable issue to the discussions on foot, these have been procrastinated to the latest date. the only intervening occurrence meriting attention, is the promulgation of a french decree purporting to be a definitive repeal of the berlin and milan decrees. this proceeding, although made the ground of the repeal of british orders in council, is rendered, by the time and manner of it, liable to many objections. the final communications from our special minister to denmark, afford further proofs of the good effects of his mission, and of the amicable disposition of the danish government. from russia, we have the satisfaction to receive assurances of continued friendship, and that it will not be affected by the rupture between the united states and great britain. sweden also professes sentiments favorable to the subsisting harmony. with the barbary powers, excepting that of algiers, our affairs remain on the ordinary footing. the consul general, residing with that regency, has suddenly, and without cause, been banished, together with all the american citizens found there. whether this was the transitory effect of capricious despotism, or the first act of predetermined hostility, is not ascertained. precautions were taken by the consul on the latter supposition. the indian tribes, not under foreign instigations, remain at peace, and receive the civilizing attentions which have proved so beneficial to them. with a view to that vigorous prosecution of the war to which our national faculties are adequate, the attention of congress will be particularly drawn to the insufficiency of existing provisions for filling up the military establishment. such is the happy condition of our country, arising from the facility of subsistence and the high wages for every species of occupation, that notwithstanding the augmented inducements provided at the last session, a partial success only has attended the recruiting service. the deficiency has been necessarily supplied during the campaign by other than regular troops, with all the inconveniences and expense incident to them. the remedy lies in establishing more favorably for the private soldier, the proportion between his recompense and the term of his enlistment. and it is a subject which cannot too soon or too seriously be taken into consideration. the same insufficiency has been experienced in the provisions for volunteers made by an act of the last session. the recompense for the service required in this case is still less attractive than in the other. and although patriotism alone has sent into the field some valuable corps of that description, those alone who can afford the sacrifice can be reasonably expected to yield to that impulse. it will merit consideration, also, whether, as auxiliary to the security of our frontiers, corps may not be advantageously organized, with a restriction of their services to particular districts convenient to them. and whether the local and occasional services of mariners and others in the seaport towns, under a similar organization, would not be a provident addition to the means of their defence. i recommend a provision for an increase of the general officers of the army, the deficiency of which has been illustrated by the number and distance of separate commands, which the course of the war and the advantage of the service have required. and i cannot press too strongly on the earliest attention of the legislature, the importance of the reorganization of the staff establishment, with a view to render more distinct and definite the relations and responsibilities of its several departments. that there is room for improvements which will materially promote both economy and success, in what appertains to the army and the war, is equally inculcated by the examples of other countries, and by the experience of our own. a revision of the militia laws for the purpose of rendering them more systematic, and better adapting them to the emergencies of the war, is, at this time, particularly desirable. of the additional ships authorized to be fitted for service, two will be shortly ready to sail; a third is under repair, and delay will be avoided in the repair of the residue. of the appropriations for the purchase of materials for ship building, the greater part has been applied to that object, and the purchase will be continued with the balance. the enterprising spirit which has characterized our naval force, and its success, both in restraining insults and depredations on our coasts, and in reprisals on the enemy, will not fail to recommend an enlargement of it. there being reason to believe that the act prohibiting the acceptance of british licenses is not a sufficient guard against the use of them for purposes favorable to the interests and views of the enemy, further provisions on that subject are highly important. nor is it less so, that penal enactments should be provided for cases of corrupt and perfidious intercourse with the enemy, not amounting to treason, nor yet embraced by any statutory provisions. a considerable number of american vessels which were in england when the revocation of the orders in council took place, were laden with british manufactures, under an erroneous impression that the non-importation act would immediately cease to operate, and have arrived in the united states. it did not appear proper to exercise, on unforeseen cases of such magnitude, the ordinary powers vested in the treasury department to mitigate forfeitures, without previously affording to congress an opportunity of making on the subject such provisions as they may think proper. in their decision, they will doubtless equally consult what is due to equitable considerations and to the public interest. the receipts into the treasury during the year ending on the th of september last, have exceeded sixteen millions and a half of dollars; which have been sufficient to defray all the demands on the treasury to that day, including a necessary reimbursement of near three millions of the principal of the public debt. in these receipts is included a sum of near five millions eight hundred and fifty thousand dollars, received on account of the loans authorized by the acts of the last session: the whole sum actually obtained on loan amounts to eleven millions of dollars, the residue of which, being receivable subsequent to the th of september last, will, together with the current revenue, enable us to defray all the expenses of this year. the duties on the late unexpected importations of british manufactures will render the revenue of the ensuing year more productive than could have been anticipated. the situation of our country, fellow-citizens, is not without its difficulties; though it abounds in animating considerations, of which the view here presented of our pecuniary resources is an example. with more than one nation we have serious and unsettled controversies; and with one, powerful in the means and habits of war, we are at war. the spirit and strength of the nation are nevertheless equal to the support of all its rights, and to carry it through all its trials. they can be met in that confidence. above all, we have the inestimable consolation of knowing that the war in which we are actually engaged, is a war neither of ambition nor of vain glory; that it is waged, not in violation of the rights of others, but in the maintenance of our own; that it was preceded by a patience without example, under wrongs accumulating without end: and that it was finally not declared until every hope of averting it was extinguished, by the transfer of the british sceptre into new hands clinging to former councils; and until declarations were reiterated to the last hour, through the british envoy here, that the hostile edicts against our commercial rights and our maritime independence would not be revoked; nay, that they could not be revoked without violating the obligations of great britain to other powers, as well as to her own interests. to have shrunk, under such circumstances, from manly resistance, would have been a degradation blasting our best and proudest hopes; it would have struck us from the high ranks where the virtuous struggles of our fathers had placed us, and have betrayed the magnificent legacy which we hold in trust for future generations. it would have acknowledged, that, on the element which forms three-fourths of the globe we inhabit, and where all independent nations have equal and common rights, the american people were not an independent people, but colonists and vassals. it was at this moment, and with such an alternative, that war was chosen. the nation felt the necessity of it, and called for it. the appeal was accordingly made, in a just cause, to the just and all-powerful being who holds in his hand the chain of events, and the destiny of nations. it remains only, that, faithful to ourselves, entangled in no connections with the views of other powers, and ever ready to accept peace from the hand of justice, we prosecute the war with united counsels and with the ample faculties of the nation, until peace be so obtained, and as the only means, under the divine blessing, of speedily obtaining it. james madison. washington, _november , _. the message and documents were read, and twelve hundred and fifty copies ordered to be printed for the use of the senate. thursday, november . philip reed, from the state of maryland, took his seat in the senate. wednesday, november . allan b. magruder, appointed a senator by the legislature of the state of louisiana, (and who arrived on the th,) produced his credentials, was qualified, and then took his seat in the senate. william hunter, from the state of rhode island and providence plantations, and james lloyd, from the state of massachusetts, severally took their seats in the senate. friday, november . stephen r. bradley, from the state of vermont, took his seat in the senate. monday, november . john pope, from the state of kentucky, took his seat in the senate. thursday, november . richard brent, from the state of virginia, attended; and there being no quorum present the senate adjourned. friday, november . the senate resumed the consideration of the motion submitted the th instant, that they proceed to ascertain the classes in which the senators of the state of louisiana should be inserted, as the constitution and rule heretofore prescribe; and, having agreed thereto, on motion by mr. taylor, _ordered_, that the secretary roll up, and put into the ballot box, two lots, no. and no. ; that the senator for whom lot no. shall be drawn, shall be inserted in the class of senators whose terms of service expire on the third day of march next; and the senator for whom lot no. shall be drawn, shall be inserted in the class of senators whose terms of service expire four years after the third day of march next. whereupon, the numbers above mentioned were by the secretary rolled up and put into the box, and no. was drawn for allan b. magruder, who is accordingly in the class of senators whose terms of service will expire on the third day of march next; and no. was drawn for thomas posey, who is accordingly in the class of senators whose terms of service will expire in four years after the third day of march next. monday, november . george m. bibb, from the state of kentucky, arrived on the th, and attended this day. monday, december . thomas posey, appointed a senator by the governor of the state of louisiana in place of john destrahan, resigned, produced his credentials, was qualified, and then took his seat in the senate. wednesday, december . _encouragement to privateers._ on motion by mr. giles, _resolved_, that a committee be appointed to inquire into the expediency of offering encouragements at this time to all mariners and seamen to bring within any of the ports of the united states british public and private armed ships, as well as merchant ships or vessels, belonging to the subjects of the united kingdom of great britain and ireland; and that the committee have leave to report by bill or otherwise. messrs. giles, lloyd, smith of maryland, tait, and taylor, were appointed the committee. friday, december . samuel w. dana, from the state of connecticut, attended. _capture of the macedonian and the frolic._ the following message was received from the president of the united states: _to the senate and house of representatives of the united states_: i transmit to congress copies of a letter to the secretary of the navy, from captain decatur, of the frigate united states, reporting his combat and capture of the british frigate macedonian. too much praise cannot be bestowed on that officer and his companions on board, for the consummate skill and conspicuous valor by which this trophy has been added to the naval arms of the united states. i transmit, also, a letter from captain jones, who commanded the sloop of war wasp, reporting his capture of the british sloop of war frolic, after a close action, in which other brilliant titles will be seen to the public admiration and praise. a nation, feeling what it owes to itself and to its citizens, could never abandon to arbitrary violence, on the ocean, a class of them which give such examples of capacity and courage, in defending their rights on that element; examples which ought to impress on the enemy, however brave and powerful, preference of justice and peace, to hostility against a country, whose prosperous career may be accelerated, but cannot be prevented by the assaults made on it. james madison. washington, _dec. , _. the message and papers were read, and referred to the committee appointed th november last, to consider that part of the message of the president of the united states which relates to the naval establishment. thursday, december . _death of the representative, john smilie._ a message from the house of representatives informed the senate of the death of john smilie, late a member of the house of representatives, from the state of pennsylvania; and that his remains will be interred this day at two o'clock. _resolved_, that the senate will attend the funeral of john smilie, late a member of the house of representatives from the state of pennsylvania, this day at two o'clock; and, as a testimony of respect for the memory of the deceased, they will go into mourning, and wear a black crape round the left arm for thirty days. tuesday, january , . the credentials of john gaillard, appointed a senator by the legislature of the state of south carolina, for six years, commencing on the th day of march next, were presented, read, and ordered to lie on file. wednesday, january . the credentials of abner lacock, appointed a senator by the legislature of the state of pennsylvania for the term of six years, commencing on the th day of march next, were read, and ordered to lie on file. monday, january . james a. bayard, from the state of delaware, arrived on the th instant, and attended this day. wednesday, january . _capture of british vessels._ the following message was received from the president of the united states: _to the senate of the united states_: i transmit to the senate copies of the correspondence called for by their resolution of the th instant. james madison. january , . the message and papers therein referred to were read, and referred to the committee appointed the th november, on so much of the message of the president of the united states as relates to the naval establishment, to consider and report thereon. the documents are as follow: black rock, _october_ , . sir: i have the honor to inform you that, on the morning of the th instant, two british vessels, which i was informed were his britannic majesty's brig detroit, late the united states' brig adams, and the brig hunter, mounting fourteen guns, but which afterwards proved to be the brig caledonia, both said to be well armed and manned, came down the lake, and anchored under the protection of fort erie. having been on the lines for some time, and in a measure inactively employed, i determined to make an attack, and, if possible, get possession of them; a strong inducement to this attempt arose from a conviction that, with those two vessels, added to those which i have purchased and am fitting out, i should be able to meet the remainder of the british force on the upper lakes, and save an incalculable expense and labor to the government. on the morning of their arrival, i heard that our seamen were but a short distance from this place, and immediately despatched an express to the officers, directing them to use all possible despatch in getting the men to this place, as i had important service to perform. on their arrival, which was about o'clock, i discovered that they had only twenty pistols, and neither cutlasses nor battle axes; but on application to generals smyth and hall, of the regulars and militia, i was supplied with a few arms, and general smyth was so good, on my request, as immediately to detach fifty men from the regulars, armed with muskets; by four o'clock, in the afternoon, i had my men selected and stationed in two boats which i had previously prepared for the purpose; with those boats, fifty men in each, and under circumstances very disadvantageous, my men having had scarcely time to refresh themselves, after a fatiguing march of five hundred miles, i put off from the mouth of buffalo creek, at one o'clock the following morning; and at three i was alongside the vessels; in about ten minutes i had the prisoners all secured, the topsails sheeted home, and the vessels under way; unfortunately the wind was not sufficiently strong to get me up against a rapid current into the lake, where i understood another armed vessel lay at anchor, and i was obliged to run down the river by the forts, under a heavy fire of round, grape, and canister, from a number of pieces of heavy ordnance, and several pieces of flying artillery; was compelled to anchor at a distance of about four hundred yards from two of their batteries. after the discharge of the first gun, which was from the flying artillery, i hauled to the shore, and observed to the officer that if another gun was fired, i would bring the prisoners on deck, and expose them to the fate we should all share; but notwithstanding they disregarded the caution, continuing a constant and destructive fire, one single moment's reflection determined me not to commit an act that would subject me to the imputation of barbarity. the caledonia had been beached in as safe a position as the circumstances would admit of, under one of our batteries at black rock; i now brought all the guns of the detroit on one side, next the enemy, stationed the men at them, and directed a fire, which was continued as long as our ammunition lasted, and circumstances permitted. during the contest, i endeavored to get the detroit on our side, by sending a line (there being no wind) on shore, with all the line i could muster; but the current being so strong the boat could not reach the shore. i then hauled on shore, and requested that warps should be made fast on the land and sent on board, the attempt to do which again proved useless. as the fire was such as would, in all probability, sink the vessel in a short time, i determined to drop down the river, out of reach of the batteries, and make a stand against the flying artillery. i accordingly cut the cable and made sail, with very light airs, and at that instant discovered that the pilot had abandoned me. i dropped astern, for about ten minutes, when i was brought up on our shore, on squaw island; got the boarding boat made, had all the prisoners put in and sent on shore, with directions for the officer to return for me, and what property we could get from the brig; he did not return, owing to the difficulty of the boat's getting ashore. discovering a skiff under the counter, i sent the four remaining prisoners in the boat, and, with my officer, i went on shore to bring the boat off; i asked for protection to the brig of lieutenant colonel scott, who readily gave it; at this moment i discovered a boat, with about forty soldiers, from the british side, making for the brig; they got on board, but were soon compelled to abandon her, with the loss of nearly all their men. during the whole of this morning both sides of the river kept up, alternately, a constant fire on the brig, and so much injured her that it was impossible to have floated her. before i left her, she had received twelve shot, of large size, in her bends, her sails in ribands, and her rigging all cut to pieces. to my officers and men, i feel under great obligations; to captain towson, and lieutenant roach, of the second regiment of artillery; ensign presstman, of the infantry; to cornelius chapin, mr. john mccomb, messrs. john tower, thomas davis, peter overtacks, james sloan, resident gentlemen of buffalo, for their soldier and sailor-like conduct; in a word, every man fought with their hearts animated only by the interest and honor of their country. the prisoners i have turned over to the military. the detroit mounted six six-pound long guns; a commanding lieutenant, a lieutenant of marines, a boatswain and gunner, and fifty-six men; about thirty american prisoners on board; muskets, pistols, and battle-axes; in boarding her, i lost one man, one officer wounded; mr. john c. cummings, acting midshipman, a bayonet through the leg; his conduct was correct, and deserves the notice of the department. the caledonia mounted two small guns, blunderbusses, pistols, muskets, cutlasses, and boarding pistols; twelve men, including officers; ten prisoners on board; the boat boarding her, commanded by sailing-master george watts, performed his duty in a masterly style; but one man killed and four wounded badly, i am afraid mortally. i enclose you a list of the officers and men engaged in the enterprise, and also a view of the lake and river in the different situations of attack; in a day or two i shall forward the names of the prisoners. the caledonia belongs to the northwest company, laden with furs, worth, i understood, two hundred thousand dollars. jesse d. elliott. hon. paul hamilton, _secretary of the navy_. _lieutenant elliott to the secretary of the navy._ black rock, _october_ , . sir: in my letter of yesterday's date, i stated my intention to enclose to you a list of the officers and men engaged with me in capturing his britannic majesty's brig, the detroit, and brig caledonia. the incessant fire of the enemy, and my own constant engagements for the protection of the vessels, compel me to postpone sending that list until another opportunity. last evening, having observed an intention, on the part of the enemy, to remove the ordnance and military stores with which the detroit was charged, i determined at once to set her on fire; thereby to prevent her having the aid of masts and yards in getting her guns into boats, she having five twelve-pound guns in her hold, and six six-pounders upon her deck, that i could prepare them, and, with my sailors, remove the ordnance during the night, when unobserved by the enemy. these preparations i am now making, and shall, with as much expedition as possible, continue to get the ordnance, and place it in our battery, as we are much in want--- not one piece at black rock. the caledonia i have perfectly recovered from the enemy. i have the honor to be, with great respect, &c., jesse d. elliott. _lieutenant elliott to commodore chauncey, dated_ black rock, _october , _. sir: i have the honor to inform you that, on the morning of the th instant, two vessels, under british colors, came down lake erie, and anchored under the protection of fort erie; that, on the same day, a detachment of men arrived from new york, accompanied by sailing-masters watts and chisson, with some masters' mates and midshipmen; that, on the morning following, i, with two boats previously prepared for the purpose, boarded and took possession of them, with the loss of two men killed, samuel fortune and daniel martin, and four wounded--acting midshipman john c. cummings, john garling, nathan armstrong, jerome sardie, and john yosen. as there is not a probability of your receiving this shortly, i have made a communication to the department upon the subject, a copy of which i enclose for your perusal. i beg you will not have conceived me hasty in making this attack. i acted as if the action came directly from yourself. let me recommend to your particular attention the officers and men who performed this service--each and all did their duty. the ensign of the adams i will send you at an early opportunity; it is at your disposal. the particulars, as it regards the vessels, i will forward you in a day or two; at present i am much engaged. with sentiments, &c. p. s. i have neglected mentioning to you the names of the vessels captured. one, his britannic majesty's brig, "the detroit," formerly the united states' brig adams; the other, a brig belonging to the northwest company, loaded with skins, called the caledonia. _commodore chauncey to paul hamilton, esq., secretary of the navy._ sackett's harbor, _october , _. sir: i have great pleasure in informing you that, by a gentleman who arrived here yesterday afternoon, from buffalo, i learn that lieutenant elliott, with about sixty sailors, and a number of volunteer militia, cut out from under the guns of fort erie, on the night of the th instant, the brig adams (lately surrendered at detroit) and the schooner caledonia, laden with peltry, said to be very valuable; but, in running these vessels for black rock, they both grounded, in such a situation that the british fort was firing on them, when my informant left there on friday morning last. it was, however, believed that, if they could not be got off, they could be destroyed. i, however, hope that lieutenant elliott will be able to save both vessels; for, such an addition to our little force on lake erie, at this time, would be invaluable. lieutenant elliott deserves much praise for the promptness with which he executed this service; as the sailors had only arrived at black rock on the th, and he had no particular orders from me, except to have boats built and prepared for cutting out the british vessels, which i knew rendezvoused near fort erie. if lieutenant elliott succeeds in saving the adams and caledonia, i think that we shall obtain the command of lake erie before december; but, as to this lake, i hardly know what to say, as there has not a single pound of powder, nor a gun, arrived yet, and i can make no calculation when any will arrive. i feel quite discouraged, and shall be tempted to seek the enemy, with the oneida alone, if the guns do not arrive soon. the sailors have all arrived at their places of destination; but the marines have not arrived. i, however, hope to see them to-day or to-morrow. i have the honor to be, &c. isaac chauncey. hon. paul hamilton, _secretary of the navy_. sackett's harbor, _october , _. sir: i have the honor of enclosing you copies of two letters from lieutenant elliott, giving an account of his having cut out from under fort erie, on lake erie, in a most gallant manner, two british brigs, the detroit (late adams) and the caledonia. the detroit was manned and armed as a man of war; the caledonia belonged to the northwest company, and was loaded with peltry. nothing that i can say, more than i have already said in a former communication upon this subject, will add to the credit of lieutenant elliott, and the gallant officers and men who accompanied him. the thing speaks for itself, and will, i am sure, be duly appreciated by all who may have any idea of the difficulties that he had to encounter, after getting possession of these vessels. i have the honor to be, &c. isaac chauncey. hon. paul hamilton, _secretary of the navy_. washington, _jan, , _. sir: in answer to your note, requesting of me "a general description of the armament and stores on board at the time of the capture of the adams, and the probable number of men," i can state that i sailed from maiden in the adams, and arrived at fort erie on the morning preceding the night in which you captured that vessel. i left her in the afternoon, and crossed in her boat to buffalo, with a flag. when i left the adams, she had on board five guns mounted, (six and four pounders,) and six long twelves in her hold. she had also on board a quantity of powder and ball, and a number of boxes of muskets. i am not able to state, of my own knowledge, the number of stand of arms, but i have been informed that nearly all the arms taken at detroit were on board; if that was the fact, the number must have been two thousand. the number of the crew that i left on board could not vary much from sixty, and the number of american prisoners about thirty, including three officers. i have the honor to be, &c. harris h. hickman. lieut. d. elliott, _u. s. navy_. navy department, _october , _. sir: i have received, with great satisfaction, your communication of the ninth instant, and have been desired by the president of the united states to return to you, and through you to the officers and men under your command, in the expedition to fort erie, which terminated to the glory of the american arms, his particular thanks. i am, with great respect, &c. paul hamilton. p. s. your having abstained from fulfilling your intimation that you would expose your prisoners to the enemy's fire, is highly approved. jesse d. elliott, esq., _lieut. commanding, black rock._ tuesday, january . _honors to hull. decatur, jones, and elliott._ the amendment to the joint resolution relative to the brilliant achievements of captains hull, decatur, and jones, having been reported by the committee correctly engrossed, the resolution was read a third time as amended; and the title thereof was amended, to read as follows: "a resolution relative to the brilliant achievements of captains hull, decatur, jones, and lieutenant elliott." _resolved_, that this resolution pass with amendments. friday february . james brown, appointed a senator by the state of louisiana, in the place of john noel detrehan, resigned, produced his credentials, was qualified, and took his seat in the senate. tuesday, february . the credentials of chauncey goodrich, appointed a senator by the legislature of the state of connecticut for the term of six years, commencing on the th day of march next, were read, and laid on file. wednesday, february . _counting electoral votes._ a message from the house of representatives informed the senate that the house agree to the report of the joint committee appointed to ascertain and report a mode of examining the votes for president and vice president of the united states, and of notifying the persons elected of their election, and have appointed messrs. macon and tallmadge, tellers, on their part. _ordered_, that mr. franklin be appointed a teller of the ballots for president and vice president of the united states, on the part of the senate, in place of mr. gaillard, absent from indisposition. a message from the house of representatives informed the senate that the house is now ready to attend the senate in opening the certificates and counting the votes of the electors of the several states, in the choice of a president and vice president of the united states, in pursuance of the resolution of the two houses of congress; and that the president of the senate will be introduced to the speaker's chair, by the speaker of the house of representatives. the two houses of congress, agreeably to the joint resolution, assembled in the representatives' chamber, and the certificates of the electors of the several states were, by the president of the senate, opened and delivered to the tellers appointed for the purpose, who, having examined and ascertained the number of votes, presented a list thereof to the president of the senate, which was read, as follows: --------------------------------------------------------------+ | president. | vice president. | states. +----------+----------+----------+----------+ | james | de witt | elbridge | jared | | madison. | clinton. | gerry. |ingersoll.| ------------------+----------+----------+----------+----------+ new hampshire | - | | | | massachusetts | - | | | | rhode island | - | | - | | connecticut | - | | - | | vermont | | - | | - | new york | - | | - | | new jersey | - | | - | | pennsylvania | | - | | - | delaware | - | | - | | maryland | | | | | virginia | | - | | - | north carolina | | - | | - | south carolina | | - | | - | georgia | | - | | - | kentucky | | - | | - | tennessee | | - | | - | ohio | | - | | - | louisiana | | - | | - | ------------------+----------+----------+----------+----------+ totals | | | | | ------------------+----------+----------+----------+----------+ the whole number of votes being , of which makes a majority; james madison had for president of the united states votes, and elbridge gerry had for vice president of the united states votes: whereupon, the president of the senate declared james madison elected president of the united states, for four years, commencing with the fourth day of march next, and elbridge gerry, vice president of the united states, for four years, commencing on the fourth day of march next. the votes of the electors were then delivered to the secretary of the senate; the two houses of congress separated, and the senate returned to their own chamber; and, on motion, adjourned. thursday, february . _vice president elect._ on motion, by mr. franklin, _resolved_, that the president of the united states be requested to cause to be transmitted to elbridge gerry, esq., of massachusetts, vice president elect of the united states, notification of his election to that office, and that the president of the senate do make and sign a certificate in the words following, to wit: "_be it enacted_, that the senate and house of representatives of the united states of america, being convened at the city of washington, on the second wednesday of february, in the year of our lord one thousand eight hundred and thirteen, the underwritten president of the senate, pro tempore, did, in the presence of the said senate and house of representatives, open all the certificates and count all the votes of the electors for a president and vice president of the united states; whereupon it appeared that james madison, of virginia, had a majority of the votes of the electors as president, and elbridge gerry, of massachusetts, had a majority of the votes of the electors as vice president; by all which it appears that james madison, of virginia, has been duly elected president, and elbridge gerry, of massachusetts, has been duly elected vice president of the united states, agreeably to the constitution. "in witness whereof, i have herewith set my hand and caused the seal of the senate to be affixed, this ---- day of february, ." and that the president of the senate do cause the certificates aforesaid to be laid before the president of the united states, with this resolution. monday, february . _capture and destruction of the java._ the following message was received from the president of the united states: _to the senate and house of representatives of the united states_: i lay before congress a letter, with accompanying documents, from captain bainbridge, now commanding the united states' frigate, the constitution, reporting his capture and destruction of the british frigate, the java. the circumstances and the issue of this combat, afford another example of the professional skill and heroic spirit which prevail in our naval service. the signal display of both, by captain bainbridge, his officers, and crew, command the highest praise. this being a second instance in which the condition of the captured ship, by rendering it impossible to get her into port, has barred a contemplated reward of successful valor, i recommend to the consideration of congress the equity and propriety of a general provision, allowing, in such cases, both past and future, a fair proportion of the value which would accrue to the captors, on the safe arrival and sale of the prize. james madison. february , . the message and accompanying documents were read, and referred to the committee appointed the th of november, who have under consideration the naval affairs of the united states, to consider and report thereon. tuesday, february . _naturalized citizens claiming protection._ mr. leib presented the memorial of a number of inhabitants of the city and liberties of philadelphia, stating that they are natives of the united kingdom of great britain and ireland, and citizens of the united states by adoption; and that, by a late proclamation, issued by the prince regent of said kingdom, the penalty of death is denounced against such of the natural born subjects thereof as shall adhere or give aid to the united states, thereby subjecting them to the punishment for treason against said kingdom whenever the united states shall call upon them to take part in the existing war, and praying such provision for their protection as the wisdom of congress may dictate; and the memorial was read. wednesday, march . _six o'clock in the evening._ _adjournment._ the senate proceeded to consider the resolution from the house of representatives, for the appointment of a joint committee to wait on the president of the united states, and notify him of the intended recess, and concurred therein; and messrs. varnum and gaillard were appointed the committee on the part of the senate. mr. varnum reported, from the committee, that they had waited on the president of the united states, who informed them that he had no further communications to make to the two houses of congress. whereupon, the president adjourned the senate to meet on the fourth monday in may next. inaugural speech. _from the national intelligencer of march , ._ yesterday being the day on which commenced the second term of mr. madison's re-election to the presidency, he took the oath to support the constitution of the united states, administered to him by chief justice marshall, in the presence of many members of congress, the judges of the supreme court, the foreign ministers, and a great concourse of ladies and gentlemen. the president was escorted to the capitol by the cavalry of the district, and received, on his approach to it, by the several volunteer corps of this city, georgetown, and alexandria, drawn up in line for the purpose. previous to taking the oath in the chamber of the house of representatives, the president delivered the following speech: about to add the solemnity of an oath to the obligations imposed by a second call to the station in which my country heretofore placed me, i find, in the presence of this respectable assembly, an opportunity of publicly repeating my profound sense of so distinguished a confidence, and of the responsibility united with it. the impressions on me are strengthened by such an evidence, that my faithful endeavors to discharge my arduous duties have been favorably estimated; and by a consideration of the momentous period at which the trust has been renewed. from the weight and magnitude now belonging to it, i should be compelled to shrink, if i had less reliance on the support of an enlightened and generous people, and felt less deeply a conviction, that the war with a powerful nation, which forms so prominent a feature in our situation, is stamped with that justice, which invites the smiles of heaven on the means of conducting it to a successful termination. may we not cherish this sentiment, without presumption, when we reflect on the characters by which this war was distinguished? it was not declared on the part of the united states, until it had been long made on them, in reality though not in name; until arguments and expostulations had been exhausted; until a positive declaration had been received, that the wrongs provoking it would not be discontinued; nor until this last appeal could no longer be delayed without breaking down the spirit of the nation, destroying all confidence in itself and in its political institutions, and either perpetuating a state of disgraceful suffering, or regaining, by more costly sacrifices and more severe struggles, our lost rank and respect among independent powers. on the issue of the war are staked our national sovereignty on the high seas, and the security of an important class of citizens, whose occupations give the proper value to those of every other class. not to contend for such a stake, is to surrender our equality with other powers on the element common to all, and to violate the sacred title which every member of the society has to its protection. i need not call into view the unlawfulness of the practice by which our mariners are forced, at the will of every cruising officer, from their own vessels into foreign ones, nor paint the outrages inseparable from it. the proofs are in the records of each successive administration of our government; and the cruel sufferings of that portion of the american people have found their way to every bosom not dead to the sympathies of human nature. as the war was just in its origin, and necessary and noble in its objects, we can reflect with a proud satisfaction, that, in carrying it on, no principle of justice or honor, no usage of civilized nations, no precept of courtesy or humanity have been infringed. the war has been waged on our part with scrupulous regard to all these obligations, and in a spirit of liberality which was never surpassed. how little has been the effect of this example on the conduct of the enemy! they have retained as prisoners of war citizens of the united states, not liable to be so considered under the usages of war. they have refused to consider as prisoners of war, and threatened to punish as traitors and deserters, persons emigrating, without restraint, to the united states; incorporated, by naturalization into our political family, and fighting under the authority of their adopted country, in open and honorable war, for the maintenance of its rights and safety. such is the avowed purpose of a government which is in the practice of naturalizing, by thousands, citizens of other countries, and not only of permitting, but compelling, them to fight its battles against their native country. they have not, it is true, taken into their own hands the hatchet and the knife, devoted to indiscriminate massacre; but they have let loose the savages, armed with these cruel instruments; have allured them into their service, and carried them to battle by their sides, eager to glut their savage thirst with the blood of the vanquished, and to finish the work of torture and death on maimed and defenceless captives: and, what was never before seen, british commanders have extorted victory over the unconquerable valor of our troops, by presenting to the sympathy of their chief awaiting massacre from their savage associates. and now we find them, in further contempt of the modes of honorable warfare, supplying the place of a conquering force, by attempts to disorganize our political society, to dismember our confederated republic. happily, like others, these will recoil on the authors; but they mark the degenerate counsels from which they emanate; and if they did not belong to a series of unexampled inconsistencies, might excite the greater wonder, as proceeding from a government which founded the very war in which it has been so long engaged, on a charge against the disorganizing and insurrectional policy of its adversary. to render the justice of the war on our part the more conspicuous, the reluctance to commence it was followed by the earliest and strongest manifestations of a disposition to arrest its progress. the sword was scarcely out of the scabbard, before the enemy was apprised of the reasonable terms on which it would be resheathed. still more precise advances were repeated, and have been received in a spirit forbidding every reliance not placed on the military resources of the nation. these resources are amply sufficient to bring the war to an honorable issue. our nation is, in number, more than half that of the british isles. it is composed of a brave, a free, a virtuous, and an intelligent people. our country abounds in the necessaries, the arts, and the comforts of life. a general prosperity is visible in the public countenance. the means employed by the british cabinet to undermine it, have recoiled on themselves; have given to our national faculties a more rapid development; and draining or diverting the precious metals from british circulation and british vaults, have poured them into those of the united states. it is a propitious consideration, that an unavoidable war should have found this seasonable facility for the contributions required to support it. when the public voice called for war, all knew and still know, that without them it could not be carried on through the period which it might last; and the patriotism, the good sense, and the manly spirit of our fellow-citizens, are pledges for the cheerfulness with which they will bear each his share of the common burden. to render the war short, and its success sure, animated, and systematic exertions alone are necessary; and the success of our arms now may long preserve our country from the necessity of another resort to them. already have the gallant exploits of our naval heroes proved to the world our inherent capacity to maintain our rights on one element. if the reputation of our arms has been thrown under clouds on the other, presaging flashes of heroic enterprise assure us that nothing is wanting to correspondent triumphs there also, but the discipline and habits which are in daily progress. twelfth congress.--second session. proceedings and debates in the house of representatives. monday, november , . this being the day appointed by law for the meeting of congress, the following members of the house of representatives appeared, and took their seats, to wit: _from new hampshire_--samuel dinsmoor, obed hall, and john a. harper. _from massachusetts_--abijah bigelow, elijah brigham, richard cutts, wm. ely, isaiah l. green, ebenezer seaver, william m. richardson, charles turner, jr., laban wheaton, leonard white, wm. widgery. _from rhode island_--richard jackson, jr. _from connecticut_--epaphroditus champion, john davenport, jr., lyman law, and jonathan o. mosely. _from vermont_--martin chittenden, wm. strong. _from new york_--daniel avery, harmanus bleecker, james emott, asa fitch, sam. l. mitchill, benjamin pond, thomas sammons, pierre van cortlandt, jr. _from new jersey_--adam boyd, lewis condict, jacob hufty, and thomas newbold. _from pennsylvania_--wm. anderson, david bard, robert brown, william crawford, william findlay, abner lacock, aaron lyle, jonathan roberts, wm. rodman, adam seybert, john smilie, geo. smith, and robert whitehill. _from maryland_--stevenson archer, charles goldsborough, joseph kent, philip b. key, peter little, alexander mckim, samuel ringgold, philip stuart, and robert wright. _from virginia_--john baker, burwell bassett, matthew clay, john dawson, thomas gholson, peterson goodwyn, aylett hawes, joseph lewis, jr., william mccoy, hugh nelson, thomas newton, james pleasants, jr., and john roane. _from north carolina_--willis alston, jr., william blackledge, meshack franklin, nathaniel macon, archibald mcbryde, and joseph pearson. _from south carolina_--william butler, john c. calhoun, elias earle, william lowndes, thos. moore, and richard wynn. _from georgia_--william w. bibb, geo. m. troup. _from kentucky_--henry clay, _speaker_, joseph desha, and stephen ormsby. _from tennessee_--felix grundy, john rhea, and john sevier. _from ohio_--jeremiah morrow. _from indiana territory_--jona. jennings, _delegate_. a quorum, consisting of a majority of the whole house, being present, it was ordered that the clerk do acquaint the senate therewith. on motion of mr. dawson, a committee was appointed on the part of the house, jointly with such committee as may be appointed on the part of the senate, to wait on the president of the united states, and inform him that a quorum of the two houses is assembled, and ready to receive any communication he may be pleased to make to them. mr. dawson and mr. bleecker were appointed the committee on the part of the house. tuesday, november . several other members, to wit: from massachusetts, francis carr; from connecticut, timothy pitkin, jr.; from vermont, samuel shaw; from new york, arunah metcalf, silas stow, and uri tracy; from pennsylvania, john m. hyneman; from virginia, john smith, and thomas wilson; from north carolina, richard stanford; from s. carolina, langdon cheves, and david r. williams; and, from kentucky, richard m. johnson, appeared, and took their seats. a message from the senate informed the house that a quorum of the senate is assembled, and ready to proceed to business. they have appointed a committee on their part, jointly with the committee on the part of this house, to inform the president of the united states that a quorum of the two houses is assembled, and ready to receive any communications he may be pleased to make to them. mr. dawson, from the joint committee appointed to wait on the president of the united states, reported that the committee had performed the service assigned to them, and that the president answered that he would make a communication to the two houses of congress to-morrow at o'clock. and then the house adjourned. wednesday, november . several other members, to wit: from vermont, james fisk; from north carolina, wm. r. king and israel pickens; from georgia, bolling hall; and from kentucky, anthony new, appeared, and took their seats. a message was received from the president of the united states. [for which, see senate proceedings of this date, _ante_, page .] the message having been read was referred, with the documents accompanying it, to the committee of the whole house on the state of the union. thursday, november . _constitution and the guerriere._ mr. dawson rose and said:--mr. speaker, i take this early moment to present to you a resolution which i feel pleasure and pride in believing will meet the general approbation, not only of this house, but of the nation. the president of the united states, in his message, which was read on yesterday, has, in terms eloquent and appropriate, made mention of an engagement which has taken place between an american frigate and one of his britannic majesty's, which has rendered to the officers and crew of our frigate that justice which they so justly merited; an engagement in which american tars have proven to the world, that when commanded by officers of skill, valor, and fidelity, they are capable of contending with, and of vanquishing, those of any nation on the earth, upon any element--even on that element where british skill has so justly acquired so much celebrity, and that the american flag, when authorized by the constituted authorities of our country, will command respect on the high road of nations. far, very far be it from me to boast--it ill becomes an individual or a nation, and is never the concomitant of true courage; but on the present occasion it seems to me proper that we should express our sentiments--our feelings, and thereby the feelings of the nation. i shall, therefore, without further comment, offer you the following resolution, observing that the facts stated have been ascertained at the proper department, and the proofs are on my table: _resolved by the senate and house of representatives of the united states of america in congress assembled_, that the president of the united states be, and he is hereby, requested to present, in the name of congress, to captain isaac hull, a gold medal, with suitable emblems and devices; and that the sum of ---- thousand dollars be, and the same is hereby, appropriated, to be distributed as prize money to the officers and crew of the united states' frigate the constitution, of forty-four guns, according to the provisions of the act for the better government of the navy of the united states; in testimony of the high sense entertained by congress of the gallantry, good conduct, and services of captain hull, the officers, and crew, of the said frigate constitution, in attacking, vanquishing, and capturing the british frigate the guerriere, mounting fifty-four carriage guns, thereby exhibiting an example highly honorable to the american character, and instructive to our rising navy. some conversation passed on the proper mode of disposing of this subject, in the course of which mr. seybert suggested the propriety of also giving some distinctive or medals to the crew of the constitution, who he thought were too generally overlooked in such cases. mr. wright approved the spirit of the resolution, but hoped the other officers would receive swords, and the men suitable rewards; and confidently hoped a gold medal would be voted to the nearest relative of lieutenant william bush of the marines, a young gentleman from his district, who fell gallantly fighting in that action, covered with wounds and glory; he, therefore, for that purpose, moved that the resolution be referred to a select committee. the resolution was eventually ordered to lie on the table till a committee should be appointed to whom it should be referred. friday, november . several other members, to wit: from new jersey, george c. maxwell; from massachusetts, ezekiel bacon; from connecticut, lewis b. sturges; and from pennsylvania, james milnor, appeared, and took their seats. george poindexter, the delegate from the mississippi territory, also appeared, and took his seat. monday, november . several other members, to wit: from massachusetts, samuel taggart; from connecticut, benjamin tallmadge; from new york, ebenezer sage, and thomas r. gold; from pennsylvania, roger davis; from delaware, henry m. ridgely; and from virginia, john taliaferro, appeared, and took their seats. _encouragement to privateers._ mr. mitchill presented a petition of sundry owners and agents of privateers in the city of new york, praying for a reduction of the duties on prizes and prize goods; that prize property, on condemnation, may be delivered to them to be disposed of and distributed; that the time necessary to procure condemnations may be shortened; that the fees of the officers of prize courts may be limited to a certain sum, and that prize owners and their agents be authorized to order prizes arrived in one port to any other port, at their discretion, at any time before the actual libelling of such prizes. _exemption of soldiers from arrest for debt._ mr. bacon stated that, under the present law, exempting from arrest of privates in the army of the united states in certain cases of debt, frauds had been, and more extensively might be, committed; inasmuch as a soldier who was tired of the service, by giving his bond for a feigned debt for an amount greater than twenty dollars, could procure himself to be arrested and kept out of service, &c. mr. b. further illustrated the evasions to which the present law is liable, and concluded by moving the following resolution: _resolved_, that the committee on military affairs be instructed to inquire into the expediency of providing by law for exempting altogether from liability to arrest, or being taken in execution for debt, of any non-commissioned officer, musician, or private, belonging to the army of the united states, or to any volunteer corps, when called into service pursuant to to law. the resolution was agreed to. tuesday, november . another member, to wit, from virginia, james breckenridge, appeared, and took his seat. _mounted troops._ mr. richard m. johnson observed that he had draughted a resolution for the consideration of the house, the object of which was to authorize an expedition of mounted volunteers against the several indian tribes hostile to the united states. he said the people of the united states had the power and the will to break up and to extirpate those hostile savages, to desolate their country, or compel them to surrender at discretion, as the miamies had done lately when they beheld the strong arm of the government uplifted and ready to fall upon them heavily. and it was the imperious duty of congress so to organize this power, and so to direct this will, as to make it effectual and most destructive to the enemy in the line of its operation. mr. j. said a winter campaign of mounted men well selected, well organized, and well conducted for sixty days, would close an indian war, which was restrained on their part by no ties of religion, by no rules of morality, by no suggestions of mercy, by no principles of humanity. sir, said he, you well know that we cannot so guard any part of our extended line of frontier as to prevent entirely the incursions of savages, so long as they have a place of safety or hiding place upon our borders; by reason of which a few desperate savages, well armed with their rifles, tomahawks, and scalping knives, and paid for the scalps of our citizens, may travel in the night, watch their place of assassination undiscovered, and fall upon our infant settlements thus exposed and massacre them without distinction of age or sex, and not leave even an infant to lisp the sad tale of sorrow to the passing stranger. such has been the fact in many places on our frontier since the battle of tippecanoe; and such was the melancholy fact near the ohio river, in indiana, when upwards of twenty persons were horribly murdered in cold blood, without the opportunity of resistance; the most of these unfortunate victims were women and children, whose heads were roasted by the fire, and in this cruel mode tortured to death, and under circumstances which would blacken and dye with deeper disgrace the most infamous and abandoned set of beings on earth. since the defeat of braddock, mr. j. observed, the conflict with the indians had always been an unequal one, and the united states had never carried on such a campaign against them as would bring them to their reason. he observed, that a winter campaign of mounted men would place us on an equality in our contest with the indians; and he pledged himself for the efficacy of such an expedition, if sanctioned and authorized by congress, and left to the executive of kentucky, so far as the forces were taken from that state. on such a campaign they must meet us in battle, or surrender at discretion; they could not avoid our search nor evade our pursuit--the season would furnish certain means of discovery; their strongholds would be broken up; their squaws and children would fall into our hands, and remain sure pledges against savage ferocity and barbarity. nothing do they so much fear as to have their squaws taken prisoners. their winter quarters would be discovered and their stock of winter provisions would be destroyed; and once since the revolution the friend of his country would enjoy the satisfaction of seeing our savage enemies humbled in the dust and solely at our mercy, notwithstanding all the arts of british intrigue to the contrary. on the contrary, we want no additional evidence, no train of reasoning, nor a particular detail of facts, to convince us that any other kind of force, and at any other period, will only give us a partial remedy. upon any other principle we give the savage foe every advantage. when threatened and pursued by a force sufficient to chastise them, no warriors can be found--they scatter through the woods like the wild beasts of the forest. send a small party, and they are immediately surrounded and cut off by superior numbers. in fact, sir, they will not meet at their own doors and firesides equal numbers in honorable combat--they must always have some great and decided advantage. in the several attacks made upon fort wayne, fort harrison, and bellevue--at which places our officers and soldiers acted with a firmness and gallantry deserving the highest praises of their country--the indians retreated at the approach of assistance, and could not be found. we witnessed the same scene when our army penetrated their country from fort wayne, who burnt their towns and destroyed their crops. in short, sir, late in the spring, in the summer, and in the fall, every thicket, every swamp--nay, every brush-heap surrounded with weeds furnishes a hiding place; and it is in vain to search after indians at such a time, if they are not disposed to be seen. mr. j. said, with this imperfect picture before us, which, however, contained undeniable facts, congress could not reconcile it to its duty not to take such steps as would speedily terminate the war with the savages. such steps had been taken as to produce much temporary distress among the pottawatamies and other tribes, and the destruction of their villages and crops would employ many of their warriors in procuring subsistence for their squaws and children, which consequently gave a correspondent relief to our frontier settlements; that a winter campaign well conducted was indispensable to complete the work which was begun with so much zeal, but which could not produce all the benefit that might be expected from a regular authorized expedition; for it would be recollected that the mounted men had gone out suddenly upon the spur of the occasion, without compensation, with a view to relieve the frontiers from the disasters of hull's humiliating surrender; and in such voluntary associations many men would consider themselves under less obligations than if employed by the government, although the party with whom he had the honor to act served beyond the time for which they enrolled themselves, and never quitted the service until honorably discharged. mr. j. observed, if the savages are unmindful of the many acts of benevolence, of justice and friendship exercised towards them by the united states; if british influence, or british gold, or any other consideration, could induce them to continue the savage practice of imbruing their hands alike in the blood of the warrior in the field, and the infant in its mother's arms; if they will be bound by no obligation however sacred; by no treaty, however solemnly made; by no dictate of nature, no matter how self-evident; the united states are absolved from all acts of further forbearance; and we are called upon by every feeling of duty and honor to disarm them of their fury and put them beyond the power of injury. mr. j. said he had not intended to trouble the house with so many preliminary remarks, but he had seen in his place the chairman of the committee to whom the resolution was to be referred, and he was anxious that the design and object of the motion should be known, that the committee might act with despatch if it met with their views: _resolved_, that the select committee to whom was referred so much of the president's message as relates to military affairs, be instructed to inquire into the expediency of authorizing an expedition of mounted volunteers against the indian tribes hostile to the united states. the resolution was agreed to _nem. con._, without debate. thursday, november . another member, to wit, from kentucky, samuel mckee, appeared and took his seat. friday, november . several other members, to wit: from new york, thomas b. cooke; from new jersey, james morgan; from virginia, john randolph; and from north carolina, lemuel sawyer, appeared, and took their seats. monday, november . several other members, to wit: from massachusetts, william reed; from rhode island, elisha r. potter; from virginia, daniel sheffey; from north carolina, james cochran; from south carolina, richard wynn, appeared, and took their seats. tuesday, november . _encouragement to privateers._ mr. bassett, from the committee appointed on that part of the president's message which relates to the naval establishment, reported, in part, a bill in addition to the act concerning letters of marque, prizes, and prize goods; which was read twice, and committed to a committee of the whole to-morrow. the bill is as follows: a bill in addition to the act concerning letters of marque, prizes, and prize goods. _be it enacted by the senate and house of representatives of the united states of america in congress assembled_, that all prize property, upon sentence of condemnation, shall, at the request of the owners of the private armed vessel by which the capture shall have been made, or of their agents, be, by the marshal of the district in whose custody the same may be, delivered over to the said owners or their agents, to be by them sold or disposed of at their discretion, and the proceeds thereof distributed by them agreeably to the provisions of law: _provided_, that all fees, costs, and charges, arising on the process of condemnation, be first paid, and that the duties accruing on such prize goods, as also two per cent. on the estimated value of such prize property, after deducting all duties, costs, and charges, (which value, as it respects the cargo, shall be ascertained in the same manner as is provided by law for ascertaining the value of goods subject to ad valorem duties; and as it respects the vessel, to be ascertained by appraisers to be appointed in the same manner,) shall be first paid, or secured to be paid, to the collector of the district into which such prize property may be brought for condemnation; which two per cent. shall be in lieu of the two per cent. on the net amount of the prize money reserved by the seventh section of the act to which this act is in addition, and shall be pledged and appropriated to the same fund as is thereby provided for. sec. . _and be it further enacted_, that all bonds taken for the security of the two per cent. fund before provided for shall be made payable within sixty days from the time of taking such bonds. sec. . _and be it further enacted_, that the owners of any private armed vessel or vessels, or their agents, may, at any time before a libel shall be filed against any captured vessel or her cargo, remove the same from any port into which it may be first brought, to any other port in the united states, subject to the same restrictions, and complying with the same regulations, with respect to the payment of duties, which are provided by law in relation to other vessels arriving in port with cargoes subject to duty: _provided_, that before such removal the said captured property shall not have been attached at the suit of any adverse claimant, or a claim against the same have been interposed in behalf of the united states. sec. . _and be it further enacted_, that wherever the proceeds of any prize property has been, or shall be, deposited with the clerk of any district court, pursuant to the orders of said court, upon condemnation, the same shall, at the request of the owners of the private armed vessel by which the capture shall have been made, or of their agents, be paid over to them, to be by them distributed agreeably to the provisions of law. wednesday, november . another member, to wit, josiah quincy, from massachusetts, appeared, and took his seat. thursday, november . _privateer prize law._ the house resolved itself into a committee of the whole on the bill in addition to the act concerning prizes and prize goods. mr. bassett, as chairman of the committee who reported the bill, explained its provisions, and enforced the necessity of its adoption. he took occasion to advert to the numerous captures made by our private armed vessels, and their utility as a system of annoyance to the enemy. in every case in which they had come in conflict, they had acquitted themselves in a manner that redounded to their credit. after some further conversation on the details of the bill, the following section was, on motion of mr. bacon, substituted for the fourth section of the bill: "sec. . _and be it further enacted_, that in cases of sale of prize property by the marshal of any district, or wherever the proceeds thereof has been or shall be deposited with the clerk of any district court, pursuant to the orders of said court upon condemnation, the same shall, by the said marshal or clerk respectively, at the request of the owners of the private armed vessel by which the capture shall have been made, or of their agents, be paid over to them, to be by them distributed agreeably to the provisions of law: _provided_, that all fees, costs, and charges, arising on condemnation, be first paid, and all duties accruing on such prize property, as also the two per cent. fund accruing on such proceeds, be first paid, or secured to be paid, to the collector of the district into which such prize may be brought for condemnation, and that the marshal and clerk shall be allowed for their services respectively, in selling, receiving, and paying over as aforesaid, a commission of one per cent. and no more, on the net proceeds of such prize property, after deducting the duties, the two per cent. and charges aforesaid: _provided, also_, that such commission shall not exceed, upon any property included in one condemnation, the sum of one thousand dollars." the bill as thus amended was then ordered to be engrossed for a third reading. _retaliation._ the engrossed bill "vesting the power of retaliation in the president of the united states in certain cases," was read a third time. a debate of more than an hour took place on the question of its passage, which was finally determined _in the negative_, by yeas and nays-- to . friday, november . _pay of the army._ the house went into committee of the whole on the bill concerning the pay of the army of the united states, which was read. mr. williams, as chairman of the committee who reported it, rose to explain the provisions of the bill. he said he hoped the consideration of the bill would not involve a discussion of the justice or necessity of the war. war, said he, is now declared; we have thrown ourselves between our country and the enemy; and it becomes us to carry her triumphantly through the war, or be responsible for the disgrace a contrary course would incur. the reason of the introduction of the first provision of the bill, he said, was the palpable fact, that the present pay of the army, taking into consideration the price of labor throughout the union, was much below the average rate. the committee, in the investigations of this business, had, with much labor, consulted all sources of information accessible to them, and in no part of the united states did it appear to be conceded by their representatives, that the fair price of labor was less than nine dollars per month. even if the price was as low as eight, or say seven dollars, wherefore should the soldier receive less than any other man? this is a subject on which every gentleman could decide by recurring to his own neighborhood, and inquiring, what was there the price of labor. if he could not procure the service of an individual there for less than eight dollars, how can he refuse the soldier that price which i now solicit for him? the ranks are not filled; we know it by too melancholy a proof; and it is our duty to fill them. how shall we best do it? it will not be contended that your population is insufficient; no, sir; the inducement is not adequate. there is no avocation of life, no employment, however hazardous, which fails to be pursued from a want of persons ready to engage in it. no, sir; if you want men to scale the mountains of ice under the northern pole, or endure the fervid rays of a vertical sun in the hither india, to brave the stormy ocean, or search for mines in the bowels of the earth; only find them adequate compensation, and there are men enough to be found. the compensation for services performed, ought always to be in proportion to the risk incurred. this is a position which cannot be controverted. there is no reason why the ranks of your army are not filled so forcible, as that you do not give enough to the privates. mr. w. then briefly adverted to other provisions of the bill. to the second section he apprehended little objection; it had been found to be necessary, and ample precedent might be found for it. to the third section there might and probably would be some objection. it was founded, he said, on the principle that every man owed to the country which protected him, military service; the same principle, already engrafted in our laws, which obliged the youth of years old to enter into the militia, warranted his retention in the service when he had voluntarily enlisted. the fourth section spoke for itself and needed no explanation. the second section having been read-- mr. wheaton said he conceived this section to involve an infraction of the constitution. any person who had contracted a debt had certainly given a pledge, not only of his property, but of his body to his creditor. it is the creditor's right to take his body in default of payment, and the creditor was by this section, in the case of those enlisting in the army, completely taken out of his hands. ample encouragement, mr. w. said, might be given to enlistments without infringing the constitution. he had no objection to privilege the soldier from arrest after enlistment, but he could not consent to the passage of a law, having an _ex post facto_ operation, which went to exempt him from obligations previously contracted. he therefore moved to strike out the words "before or" from the second section above recited. mr. bacon spoke in support of this provision. it was necessary to guard against fraud. he said, in the village in which he lived, such frauds had been committed, by the creation of fictitious debts, under which a person enlisting had procured himself to be arrested. after this arrest, on giving bail, he was set at large. whilst going at liberty, his commander had attempted to take him; but a writ of _habeas corpus_ having been taken out, it had been determined by the courts that a man was the property of his bail until the suit was determined. and that determination, mr. b. said, would never take place so long as the united states had an occasion for the man's services; because, by the same collusion which commenced it, the suit may be continued from term to term of court, until the term of enlistment has expired. he had merely stated facts. he had known an instance of an officer being obliged to move his whole corps over the line to avoid these petty depredations on their ranks; and he would venture to say that the officers would much rather face the enemy in the field, than the host of legal depredators in massachusetts, on those enlisted for the public service. the principle of this provision was not novel, he said, for it existed already. the motion to strike out the section was then negatived by a large majority. the third section was then read. mr. stow rose and said, that the respect he felt for the house, seemed to forbid that he should propose to them any thing not fully matured: but, that at the same time the objections to one section of the bill under consideration, appeared to him so many and so important, that he could not refrain from urging them, though as he feared in somewhat of an irregular and desultory way. in excuse he said, he had supposed the present bill agreeable to the one reported in the senate, and had not observed the difference till that moment. his objections were to the d section, and which he should close by moving that it be stricken out. he arranged his objections principally under three heads: st. its tendency to violate the public morals. d. interference with public economy--and d, its violation of the spirit of the constitution of the united states. he remarked, that proper instruction and discipline of youth lay at the bottom of all that was valuable in this life, and perhaps of the life to come. that it was of great importance in every government, but above all that it was infinitely so in ours, where the people were real sovereigns, and where the government would be ill or well administered, according as the youths were bred in temperance, virtue, and obedience. this section of the bill goes to cut up those qualities by the roots. it says to the uneasy boy in his teens, you may enlist and throw off all parental authority; you may enlist and defraud the parent or master, who has maintained you in your helpless state, of his just reward. the strongest ties of affection and gratitude, you may, by enlisting, dissolve in a moment. nay, more, we say deliberately and solemnly--we will pay this promoted villain $ for his iniquity! for such is the amount of the bounty and wages for three years. who, sir, will be most likely to avail himself of this privilege, or rather of this course? not the sober, faithful minor, who might be trusted in a camp with some degree of safety, but the fickle, turbulent restless youth, the one of all others who wants the salutary restraint of a parent or guardian. this is the person whom you are about to allow to plunge himself into all the dissipations, into all the seductions, and into all the vices of a camp! but, sir, said he, it is inhuman, as well as immoral. humanity calls upon you to take care of and educate the miserable offspring of the poor. who will take them; who will provide for their infancy, if at the moment they are able to make any remuneration for this humane, this tender care, you offer them $ to turn ingrate? but, sir, not only the public morals, but the public economy require that you should not enlist minors without the consent of their parents, guardians, or masters. what does public economy require, but that every one should serve the republic in that capacity in which he can be most useful? and, sir, let me add that patriotism requires the same thing. if the blacksmith or the farmer is most useful in his calling, there is as much patriotism in attending to the anvil and the farm, as to the bayonet and the sword. men of mature age, by accepting the terms you offer, or not, determine where they can be most useful; but does not every principle of economy forbid that you should go into the private family, the workshops, and the manufactory, regardless of the opinion of the father and superintendent, and seduce the young man from learning some useful and honorable employment, and in lieu thereof, at that tender, at that doubtful period of human life, you plunge him into all the immoralities of a camp, and turn him a vagabond on society. no, sir, true economy requires that children should be well educated, well governed, and faithfully bred to some honest calling. the very principle, notwithstanding all the talk of patriotism, is recognized in the price you offer for soldiers, as well by the former law, as by the present bill. you offered by the former law, five dollars per month, by the present bill eight dollars. that is, you say to the world, that by being a soldier, you render to your country services worth five or eight dollars. now, sir, for five or eight dollars per month is it prudent, is it economical, to dissolve the all-important relation of governor and governed in respect to youth? to break up your infant manufactories, and to deprive poor children at once of a useful employment, and a home? but, sir, perhaps it will be said that necessity, the safety of the republic, requires this. when the legions of britain were upon our shores, when we were struggling for our very existence, the necessity was not then thought sufficiently imperious to warrant such a principle. can it then be said, that with treble the population, and in an offensive war, necessity requires the dangerous innovation? certainly not. again, the law, then and now, allows the soldier to be arrested for a debt amounting to two dollars; and will you say, that the debt in which there can be no deception incurred, for the most necessary of all things, food, clothing, and instruction for infancy, shall be disregarded? i trust, sir, that a principle so unreasonable will never prevail. but, lastly, said mr. s., i do contend that the clause is contrary to the spirit, if not the letter, of the constitution. that constitution provides that private property shall not be taken without reasonable compensation. the property which a parent has in the services of his son, of a guardian in the services of his ward, and a master in the services of his servant, though differing widely in degree, is as real and oftentimes more important than the farmer has in his personal estates, or the planter in his slave. it also impairs the force of contract, which is strictly interdicted to the states, and _a fortiori_ not to be done to the general government. for these and for many other reasons which might be added, mr. s. moved to strike out the third section of the bill. mr. milnor said that if he understood the third section of the bill under consideration, it allows recruiting officers to enlist minors above the age of eighteen years, without regard to their situation as apprentices to tradesmen, or living under the care and guardianship of their parents; and its object was to hold out to young minds a temptation to desert the useful course destined for them by their friends, for the purpose of becoming soldiers. now, said mr. m., whatever may be the necessity of war, on some occasions, and however necessary some might think that in which we are now engaged, which was a question he should not now meddle with, he was desirous that its operations should be so conducted, as to do as little injury as possible to our fellow-citizens; and, as the leading principle in the conduct of all politicians should be a regard to the public good, he hoped for a general concurrence in this sentiment; that, for his own part, he wished the war to be felt as little as possible in the families and occupations of the people. we are not, said he, to be organized into a military government. however necessary some may deem this war, all will desire a short one. thank god, no napoleon has yet risen up amongst us to change our free institutions into a military despotism. encourage, if you please, a military spirit, that we may be ready for the national defence, when necessary; but let it be done in the spirit of the constitution, by means of a well-regulated militia; let your citizens and your farmers surrender their apprentices and children to be trained and instructed in military tactics, at stated times, that, when arrived at the state of manhood, they may be ready for their country's service. but what is here proposed? to go into the workshop of the industrious mechanic, or into a parent's dwelling, and entice away by the lure of money and military glory, the apprentice and the child. no matter what moneys may have been expended in his education, or how great has been parental exertion to advance the future prospects of the child, any recruiting officer, or even a common soldier, profligate in his principles, and inured to vicious habits, is by this bill encouraged to seduce him from his duty. mr. troup said the objections to this provision were lame in their nature; he only wished they were half as sound as they were novel. it was the result of the experience of men older than themselves in military concerns, that this very description of population, between eighteen and twenty-one, constituted the strength and vigor of every war. what was the fact as respected france? so just was this principle in the contemplation of france, that her whole army is made up of these young men; and yet an attempt is made to deter us from using them by a flimsy pretext, that to employ them would be violating the obligations of a contract and the principles of morality. if our feelings and sympathies be suffered to influence us in favor of the individual who voluntarily enlists, the reasons are much stronger in favor of discharging one-half of those already in your ranks, than the description just spoken of. there is scarcely any man over the age of twenty-one years, between whom and other individuals there is not some strong obligatory moral tie, which we ought not to sever if we could conveniently avoid it. look at the case of a husband deserting his wife and children, or of a man, above twenty-one, deserting his aged parent, dependent on him for subsistence. are not these cases equally strong? the doctrine of the gentlemen, whether on the score of morality or expediency, will apply to cases above as well as below the age of twenty-one. mr. gold premised, that he did not rise to enter into the general policy of the war; nor could he deny it to be the duty of those who have declared the war, to provide an army to carry it on. but he added, it is better for the army to be augmented by very liberal bounties and wages, than that important principles should be violated and an inroad made upon the great relations and interests of society. are gentlemen aware how extensive is the province of master and apprentice? how wide-spread the relation in the community? a sensation will be produced which gentlemen seem not to have anticipated. the respective states have, with studious care, legislated upon and regulated the various duties and obligations of masters and apprentices. under those laws, a clear obligation is created upon the apprentice to serve till of age; and in some states, to compensate for absence or desertion during the stipulated apprenticeship; for a faithful performance, the parent or guardian becomes responsible; and for non-performance, liable for damages to the master. can the authors of this bill imagine that those solemn obligations contained in indentures of apprenticeship, will dissolve and vanish under the charm of the bill? can the fundamental principles of the constitution, rendering contracts sacred, be thus uprooted and destroyed? can this bill deprive the master of his action, secured to him by the laws of the state, against the master or guardian for absence or desertion of the apprentice? here is a most serious bearing upon the laws of the states, regulating this important relation. but gentlemen allege _necessity_; the army must be filled up; officers are imposed on by fraudulent minors, who receive the bounty, and then claim a release upon the plea of non-age. in answer, let gentlemen beware how they yield to this fancied plea of necessity. all history attests the danger of yielding essential principles to state necessities; to temporary pressure and impulses; such precedents become infinitely mischievous in society. no fancied benefit can compensate for the evil of such examples. how easy is it to remove much of the complaints by providing that the minor, who shall impose upon the recruiting officer, shall refund the bounty he received before he shall receive his discharge. such a provision would be just, and not violate general principles. mr. little.--in removing one evil, mr. chairman, let us beware that we do not substitute a greater. the object of the section proposed to be stricken out of the bill on your table, and now under consideration, is to fill up the ranks of your army. from every attention i have been able to bestow on this subject, which, permit me to say, i am anxiously desirous, as much so, i trust, as any gentleman in this committee, to see realized, will, if returned in its present shape, in my humble opinion, be productive of much evil, and perhaps of little good. you receive into the army, by voluntary enlistment, that description of our fellow-citizens, at a time of life to them the most interesting and auspicious as respects their future pursuits and welfare. i have always been given to understand that the camp is but illy calculated in those stations which they only can fill in the army, either to improve their understandings or perfect them in such habits as are calculated to acquire a respectable subsistence, or fit them for the domestic duties of their future lives. in the course of nature, they, it may be truly said, constitute the future strength and glory of every country. the laws of this land render every act of theirs illegitimate. abstract from the consideration of a soldier, for which they are only rendered fit from their corporeal powers, everything with them is premature; if forced into existence, like the flower or fruit unseasonably raised in a hot-bed, wears the external qualities, but, in fragrance and taste, is unnatural and insipid. sir, have we not some reason to doubt the constitutionality of this section. in its operation, it evidently will vitiate contracts, which ought always to be held sacred, solemnly and voluntarily entered into by the parent or guardian with the matter of an apprentice, reciprocally beneficial, founded on the most laudable and praiseworthy principles, on the faithful performance of which materially depends the future welfare of the youth, to which i believe may reasonably be added the comforts and good order of society. do we not know, mr. chairman, that, at that period of their lives and servitude, in which you make them liable, if this section is retained, to be drawn from the service of their masters, that then, and only then, are they enabled and become qualified to make some remuneration for the pains and attention paid to their improvement and instruction by the worthy and industrious mechanic or manufacturer; and will you, by this unpropitious act, endanger the future happiness of the former, and withhold that just reward due to the industry of the latter? you annihilate this contract, which ought to be held, if possible, inviolate by the government. every principle of justice and sound policy dictates its rigid fulfilment. are we not aware, sir, of the immense sums now invested and actively employed in the different manufactories distributed over our extensive country? do we not know that the manual labor of them is conducted principally by such who now are, or will in time, come within the provision of this section of your bill? have this government, and the people of this country, no interest in the prosperity of these manufactories? i have been always taught, and for one do religiously believe, on their materials virtually depends the completion of our independence as a nation. let me entreat you to reflect before you hazard this dangerous experiment, lest, in the adoption of this hitherto novel principle, and in its operation, you may endanger the safety, or, at least, the prosperity of our republic, by giving its manufactories a vital stab. sundry other amendments were proposed in the committee, after the bill was reported to the house, and negatived. the bill was then ordered to be engrossed for a third reading. saturday, november . _pay of the army._ an engrossed bill "concerning the pay of the non-commissioned officers, musicians, privates, and others of the army, and for other purposes," was read the third time. mr. quincy.--mr. speaker, i am sensible that i owe an apology for addressing you at so early a period of the session, and so soon after taking my seat, if not to the house at least to my particular constituents. it is well known to them, at least to very many of them, for i have taken no pains to conceal the intention, that i came to this session of congress with a settled determination to take no part in the deliberation of the house. i had adopted this resolution, not so much from a sense of self-respect, as of public duty. seven years' experience in the business of this house, has convinced me that from this side of the house all argument is hopeless; that whatever a majority has determined to do, it will do in spite of any moral suggestion, or any illustration made in this quarter. whether it be from the nature of man, or whether it be from the particular provisions of our constitution, i know not, but the experience of my political life has perfectly convinced me of this fact, that the will of the cabinet is the law of the land. under these impressions, i have felt it my duty not to deceive my constituents; and had, therefore, resolved by no act or expression of mine, in any way, to countenance the belief, that any representation i could make on this floor could be useful to them, or that i could serve them any farther than by a silent vote. even now, sir, it is not my intention to enter into this discussion. i shall present you my thoughts rather by way of protest than of argument. and i shall not trouble myself afterwards with any cavils that may be made; neither by whom, nor in what manner. i should not have deviated from the resolution of which i have spoken, were it not for what appears to me the atrocity of the principle, and the magnitude of the mischief contained in the provisions of this bill. when i speak of the principle as atrocious, i beg distinctly to be understood as not impeaching the motives of any gentlemen, or representing them as advocating an atrocious principle. i speak only of the manner in which the object presents itself to my moral view. it is the principle contained in the third section of the bill of which i speak. that section provides, that "every person above the age of eighteen years, who shall be enlisted by any officer, shall be held in the service of the united states during the period of such enlistment; any thing in any act to the contrary notwithstanding." the nature of this provision is apparent, its tendency is not denied. it is to seduce minors of all descriptions, be they wards, apprentices, or children, from the service of their guardians, masters, and parents. on this principle, i rest my objection to the bill. i meddle not with the nature of the war. nor is it because i am hostile to this war, both in its principle and its conduct, that i at present make any objection to the provisions of the bill. i say nothing against its waste of public money. if eight dollars a month for the private be not enough, take sixteen dollars. if that be not enough take twenty. economy is not my difficulty. nor do i think much of that objection of which my honorable friend from pennsylvania (mr. milnor) seemed to think a great deal; the liberation of debtors from their obligations. so far as relates to the present argument, without any objection from me, you may take what temptations you please, and apply them to the ordinary haunts for enlistment--clear the jails--exhaust the brothel--make a desert of the tippling shop--lay what snares you please for overgrown vice, for lunacy, which is of full age, and idiocy out of its time. but here stop. touch not private right--regard the sacred ties of guardian and master--corrupt not our youth--listen to the necessities of our mechanics and manufacturers--have compassion for the tears of parents. in order to give a clear view of my subject, i shall consider it under three aspects--its absurdity--its inequality--its immorality. in remarking on the absurdity of this principle it is necessary to recur to that part of the message of the president of the united states at the opening of the present session of congress, which introduced the objects proposed in this bill to the consideration of the house; and to observe the strange and left-handed conclusions it contains. the paragraph to which i allude is the following: "with a view to that vigorous prosecution of the war, to which our national faculties are adequate, the attention of congress will be particularly drawn to the insufficiency of existing provisions for filling up the military establishment. such is the happy condition of our country, arising from the facility of subsistence and the high wages for every species of occupation, that, notwithstanding the augmented inducements provided at the last session, a partial success only has attended the recruiting service. the deficiency has been necessarily supplied during the campaign, by other than regular troops, with all the inconveniences and expense incident to them. the remedy lies in establishing more favorably for the private soldier, the proportion between his recompense and the term of enlistment. and it is a subject which cannot too soon or too seriously be taken into consideration." mr. speaker--what a picture of felicity has the president of the united states here drawn in describing the situation of the yeomanry of this country! their condition happy--subsistence easy--wages high--full employ. to such favored beings what would be the suggestions of love, truly parental? surely that so much happiness should not be put at hazard. that innocence should not be tempted to scenes of guilt. that the prospering ploughshare should not be exchanged for the sword. such would be the lessons of parental love. and such will always be the lessons which the president of the united states will teach in such a state of things, whenever a father of his country is at the head of the nation. alas! mr. speaker, how different is this message! the burden of the thought is, how to decoy the happy yeomen from home, from peace, and prosperity, to scenes of blood--how to bait the man-trap; what inducements shall be held forth to avarice, which neither virtue nor habit, nor wise influences, can resist. but this is not the whole. our children are to be seduced from their parents. apprentices are invited to abandon their masters. a legislative sanction is offered to perfidy and treachery. bounty and wages to filial disobedience. such are the moral means by which a war, not of defence or of necessity, but of pride and ambition, should be prosecuted. fit means to such an end. the absurdity of this bill consists in this: in supposing these provisions to be the remedy for the evil, of which the president complains. the difficulty is, that men cannot be enlisted. the remedy proposed is, more money--and legislative liberty to corrupt our youth. and how is this proved to be a remedy? why it has been told us, on the other side of the house, that this is the thing they do in france. that the age between eighteen and twenty-one is the best age to make soldiers. that it is the most favorite age, in bonaparte's conscription. well, sir, what then? are we in france? is napoleon our king? or is he the president of the united states? the style in which this example has been urged on the house, recalls to my recollection very strongly a caricature print which was much circulated in the early period of our revolutionary war. the picture represented america as a hale youth, about eighteen or twenty-one, with a huge purse in his pocket. lord north, with a pistol at his breast, was saying "deliver your money." george the third, pointing at the young man, and, speaking to lord north, said, "i give you that man's money for my use." behind the whole group was a frenchman capering, rubbing his hands for joy, and exclaiming, "be gar! just so in france!" now, mr. speaker, i have no manner of doubt, that the day that this act passes, and the whole class of our northern youth is made subject to the bribes of your recruiting officers, that there will be thousands of frenchmen in these united states, rubbing their hands for joy, and exclaiming, "be gar! just so in france." sir, the great mistake of this whole project lies in this: that french maxims are applied to american states. now it ought never to be lost sight of by the legislators of this country, that the people of it are not and never can be frenchmen--and, on the contrary, that they are, and can never be any thing else than freemen. the true source of the absurdity of this bill, is a mistake in the nature of the evil. the president of the united states tells us that the administration have not sufficient men for their armies. the reason is, he adds, the want of pecuniary motive. in this lies the error. it is not pecuniary motive that is wanting to fill your armies. it is moral motive in which you are deficient. sir, whatever difference of opinion may exist among the happy and wise yeomanry of new england, in relation to the principle and necessity of this war, there is very little, or at least much less diversity of sentiment, concerning the invasion of canada, as a means of prosecuting it. they do not want canada as an object of ambition; they do not want it as an object of plunder. they see no imaginable connection between the conquest of that province and the attainment of those commercial rights which were the pretended objects of the war. on the contrary, they see, and very plainly too, that if our cabinet be gratified in the object of its ambition, and canada become a conquered province, that an apology is immediately given for extending and maintaining in that country a large military force; under pretence of preserving the conquered territories--really, with a view to overawe adjoining states. with this view of that project the yeomanry of new england want that moral motive which will alone, in that country, fill your armies with men worthy enlisting. they have no desire to be the tools of the ambition of any man, or any set of men. schemes and conquest have no charms for them. abandon your projects of invasion; throw your shield over the seaboard and the frontier; awe into silence the indians in your territory; fortify your cities; take the shackles from your commerce; give us ships and seamen; and show the people of that country a wise object of warfare; and there will be no want of men, money, or spirit. i proceed to my second objection, which was to the inequality of the operation of the provisions of this bill. it is never to be forgotten, in the conduct of the government of these united states, that it is a political association of independent sovereignties, greatly differing in respect of wealth, resource, enterprise, extent of territory, and preparation of arms. it ought, also, never to be forgotten, that the proportion of physical force which nature has given does not lie within precisely the same line of division with the proportion of political influence which the constitution has provided. now, sir, wise men, conducting a political association thus constructed, ought always to have mainly in view, not to disgust any of the great sections of the country, either in regard to their interests, their habits, or their prejudices. particularly ought they to be cautious not to burden any of the great sections in a way peculiarly odious to them, and in which the residue of the states cannot be partakers, or at least only in a very small degree. i think this principle of political action is incontrovertible. now, sir, of all the distinctions which exist in these united states, that which results from the character of the labor in different parts of the country, is the most obvious and critical. in the southern states, all the laborious industry of the country is conducted by slaves; in the northern states it is conducted by the yeomanry, their apprentices, or children. the truth is, that the only real property, in the labor of others, which exists in the northern states, is that which is possessed in that of minors--the very class of which, at its most valuable period, this law proposes to divest them. the planter of the south can look round upon his fifty, his hundred, and his thousand of human beings, and say, these are my property. the farmer of the north has only one or two _ewe lambs_--his children--of which he can say, and say with pride, like the roman matron, "these are my ornaments." yet these, this bill proposes to take from him, or (what is the same thing) proposes to corrupt them--to bribe them out of his service; and that, too, at the very age when the desire of freedom is the most active, and the splendor of false glory the most enticing. yet, your slaves are safe; there is no project for their manumission in the bill. the husbandman of the north, the mechanic, the manufacturer, shall have the property he holds in the minors subject to him put to hazard. your property in the labor of others is safe. where is the justice--where the equality--of such a provision? it is very well known in our country--indeed it is obvious, from the very nature of the thing--that the exact period of life at which the temptation of this law begins to operate upon the minor, is the moment when his services begin to be the most useful to the parent or master. until the age of , the boy has hardly paid to the parent or master the cost of his clothing and education. between the age of and , is just the period of profit to the father and master. it is also the period at which, from the approximation towards manhood, service begins to grow irksome, and the desire of liberty powerful. the passions are then, also, in their most ungoverned sway; and the judgment, not yet ripe, can easily be infatuated and corrupted by the vain dreams of military glory. at this period, your law appears with its instruments of seduction. it offers freedom to the minor's desire of liberty--plunder to his avarice--glory to his weakness. in short, it offers bounty and wages for disobedience to his natural or social obligations. this is a true view of this law. that it will have that full operation which its advocates hope and expect--that it will fill your armies with runaways from their masters and fathers--i do not believe; but, that it will have a very great operation, i know. the temptation to some of our youth will be irresistible. with my consent, they shall never be exposed to it. mr. speaker, i hope what i am now about to say will not be construed into a threat. it is not uttered in that spirit; but only to evince the strength of my convictions concerning the effect of the provisions of this law on the hopes of new england, particularly of massachusetts. but pass it, and if the legislatures of the injured states do not come down upon your recruiting officers with the old laws against kidnapping and man-stealing, they are false to themselves, their posterity, and their country. mr. fisk expressed the astonishment he felt at the observation which had fallen from the gentleman last up. he certainly agreed with the gentleman in one thing: that those who are in pursuit of a favorite object frequently overleap the bounds of reason and decorum in support of it. now, it had been a favorite object with that gentleman to shield the british government from blame; and it was an object which he certainly pursued with the greatest ardor and anxiety. in the address of that gentleman's political friends, in congress, to their constituents, subsequent to the declaration of war, it had been deceptively said, that a disposition existed in the british government to make an arrangement on the subject of impressment. now, sir, that the ground is taken from under them, we hear that the object of the war is an unrighteous one, and we are guilty of waging it. is it indeed guilty to defend our country? said mr. f. the gentleman would overawe the indians. sir, the most innocent party in the war against us is the savage himself. how comes he in the ranks against us, with his tomahawk and scalping knife? why is he impelled to shed our blood? why has the gentleman shielded british instigation of their outrages? again, sir, has the gentleman no feeling for the sufferings, no ear for the groans of our suffering seamen? has he no sympathy for those relations of life, from which the seamen is torn away, and for that moral sentiment which is violated in that outrage--and are we _guilty_ because we seek to shield our citizens from it? are we guilty because we resist the british scalping knife? recall the year ' to your recollection, sir, and the pompous display of energy at that day, and the armies raised--to fight whom?--a few miserable frenchmen whom they could catch at sea. war was then a mere amusement. why, that we are now at war with the nation who has been seizing our property, capturing our citizens, and carrying them into slavery--why are our means for carrying on war to be limited? as to the provision of this bill so much objected to, was it esteemed such a violation of all right and principle in the commencement of the revolution to take children of sixteen years of age from their parents? that was a period when the youth of the country were invited to the field. i was one who accepted the invitation, and i have never regretted it. but, says the gentleman, will you take the child from the parent? sir, which excites the most tears--a child leaving his parent to defend his country, or a parent torn from his family and his country to fight for a foreign power? the truth is, that most of those who object to this bill would destroy all the means of carrying on the war, if they could. it was not thought immoral in the war of the revolution to take youths of this age, nor were they the least efficient part of our army. mr. d. r. williams said, if it was possible for him to keep down those feelings of indignation which pressed upon his mind, in what he had now to offer, he would speak with due respect to the orders of the house, and not infringe its privileges. he wished, indeed, he had not occasion to speak; but, sir, said he, it is my misfortune to be the chairman of the military committee, more, mr. speaker, by your partiality than by any merit of mine. i am compelled to rise. i have been stigmatized by the gentleman (mr. quincy) as the introducer into this house of an atrocious principle. if such language comports with our rules of order, i must submit, seeing it is uttered where he is protected; but, sir, i must pronounce it a libel on myself, and throw it back on him who uttered it, as a foul, atrocious libel on the committee. sir, i came here not disposed to use such language; nothing but extreme injury should extort it from me. i wish that the gentleman had kept the resolve he informed us he had formed; as he could not do so, i would that he had been good enough to spare me from the acrimony of his remarks. atrocity! the advocate of an atrocious principle! let the gentleman recur to those who originated this principle; let him go back to the day of the revolution, and damn the memory of the patriots of those times, the fruit of whose labors he so ill deserves to enjoy. the provisions of those days authorized the enlistment of all over the age of sixteen years. nor does the statement which the gentleman from new york made alter the case, for if there be an increase of population since the revolution, there appears to be a correspondent deterioration of patriotism. the gentleman from massachusetts admits that a necessity may exist to justify the course proposed by the bill. well, sir, was there ever a crisis calling on a people for vigorous exertions more awful than that which impends over us now? now, when a vile spirit of party has gone abroad and distracted the union? now, that the state which the gentleman represents is almost in arms against us? and, in such a state of things are we to be told that we are espousing an atrocious principle, because we are seeking for the means to defend our country? the will of the president is the law of the land, says the gentleman. how can he expect his arguments to be attended to, when the first word he utters after taking his seat is to insult and abuse every one opposed to him in opinion. i beg your pardon, mr. speaker, i ask that of the house, for the language i am compelled to use; but so long as i am a man, so help me god, when i am told i am actuated by an atrocious principle, i will throw it back in the teeth of the assertor as an atrocious falsehood. look back on the principle adopted by the friends of that gentleman--i wish i could say who were his friends--i do not call the honest federalist, who is willing to support his country's rights, his friend--even in england, the nation from which he talks of receiving his religion and morality, and i might add, his ideas of _our_ rights--even in that country they do not prevent enlistment of minors--that is, they are not discharged on the ground of minority. i have said before, sir, that we had examples in our own government, drawn not to be sure from the purest times, but which more than covered the whole case. a law was passed in which authorized the enlistment not only, of minors but every description of persons whom the president of the united states thought proper to have enlisted--which authorized him to send his recruiting sergeants into every family and take those who suited him best. this was the principle of his friends. does the gentleman say that it was atrocious in to defend ourselves against the french? but it has become so now, seeing the defence we seek is against the english. the gentleman has said we act on an absurd principle; that we have mistaken the means of carrying on the war to effect: we want the moral means. by this i presume he would be understood that the people are opposed to the war, particularly to our land operations. there seems then to be no moral objection to the war on the ocean. and, sir, if it be not immoral to support the war on the ocean, on what possible principle can it be immoral, in the same cause, to support it on the land? the war on both elements is for the same object; not as the gentleman says, to rob and plunder in canada, but, according to the motto of the gallant captain porter, for "free trade and sailors' rights." mr. pitkin remarked that the power given to a recruiting officer to enlist minors was a new principle. it had not been acted upon before, or since the revolution--this is a new mode of raising an army; were gentlemen prepared to adopt this new principle? although by the resolves of the congress of , minors could be enlisted, yet apprentices were exempted--and if any were enlisted, yet, on proper application, they were discharged, unless it could be shown the enlistment was with the consent of their masters or guardians. by the law of ' , the president certainly could direct relative to the age and size of a recruit--yet to whom did he apply? not to apprentices--not to wards--and then if an officer enlisted an apprentice without the consent of his master, he could be taken away from him by the writ of _habeas corpus_ and the officer held liable for damages. the eleventh section of the law for raising an additional military force contained a similar provision, and it was also necessary the consent of the master or guardian should be in writing. mr. p. did not intend to meddle at all with the policy of war--he should confine himself to the consideration of the most important principle contained in the third section of the bill. the effect of this bill goes to infringe all the state laws. they all provide for the relations which exist between a master and his apprentice--a guardian and his ward; if the apprentice runs away he can be procured and brought back; and some of the states provide, that when the apprentice comes again into the possession of his master, that he shall serve not only the time lost, but an extra time, to remunerate his master by these services for the losses he has sustained. if you take away his apprentice you deprive him of his property--this is a loss to the master, or he must recover where the services are due; that is, of the parent or guardian, who are one of the contracting parties to the indentures--and where is the remedy? will not the officer be also liable to the state laws? does not the constitution say, no laws shall be passed abrogating contracts? this bill will in its operation sanction the violation of contracts, or it means nothing--it sanctions the right to take away the property of guardians, parents or masters, without providing any compensation for the same. i repeat, you are introducing a new principle in the mode of administering government. the pressure is also beyond comparison unequal on the northern states. do gentlemen plead the necessity of the case? does a necessity exist superior to the laws? are we to understand that the _salus populi_ shall rule without control? if not, then what is meant by this grant to take the property of your constituents, and leave them no remedy for the injury? the honorable gentleman from south carolina has referred to the practice of other nations. great britain herself never incorporated apprentices into her armies. mr. williams admitted that apprentices were exempt--but minors were not. mr. pitkin agreed but even when minors are enlisted without the consent of their guardians or masters, they can be released by the writ of _habeas corpus_. i believe that, in , great britain passed an act which was designed to extend to only the colonies; it allowed indented servants to be enlisted into the army--but this act made provision for the master, if the compensation was claimed within so many months after enlistment, and the necessary facts were proved before any two justices of the peace. whether this act was ever carried into effect i do not know--but i do know that compensation was provided for the property taken from the master in the person of, his servant. mr. troup.--if a stranger in the gallery had listened to the member from massachusetts, he would have supposed that the provision of the bill against which the gentleman's anathemas were most vehemently levelled, authorized the recruiting sergeant to enter the house of the citizen, drag from it the young man, and transport him, loaded with chains, (as is said to be the practice of one nation of europe,) to the armies. who would have supposed that the provisions merely authorized the recruiting sergeant to accept the voluntary service of the young man, between eighteen and twenty-one? the service due to the country, prior in point of time, paramount in obligation, must yield, says the gentleman, to the service due to the master, the parent, or the guardian. if, sir, in the days of rome's greatness, if in the proud days of grecian glory, the man could have been found base and hardy enough to withhold the young men from the public service, to turn them from the path of honor, or to restrain them from the field of fame, he would have been hurled from the tarpeian rock or consigned to the cave of trophonius. the young man is preferred here, not because he is preferred in france, but because his physical constitution and his moral temperament peculiarly qualify him for the arduous duties of the field and camp; bodily vigor and activity, ardor, enterprise, impetuosity; without family, and therefore without the cares which family involve. no wife, no helpless children. without care, but for his country. without fear, but for her dishonor. he is most eminently qualified for the duties of the camp and the field; all experience has proved it. mr. macon said it appeared the house was now in a situation in which it had frequently been heretofore; that is, they take up a very small subject and make a very great one of it. the only question for discussion appeared to him to be, whether or not they would enlist into the army young men between the ages of eighteen and twenty-one. he was very sorry that, at this early period of the session, a discussion had been introduced into the house, which had at all times better be let alone, that of foreign influence. he did not mean to discuss it; but, if gentlemen were anxious for it, he was perfectly willing to set aside a day for the consideration of the subject, and go about it methodically. he regretted very much that the feature to which he had alluded had been inserted in the bill; because he had been in hopes that, on the question of raising the pay of the army, they would, one and all, have manifested a disposition to support the rights of the country. in the hope that they would yet come to an agreement on the subject; that they could give some vote of unanimity in relation to the war, he should move for a recommitment of the bill, with a view to amend it by striking out the third section. it appeared to him that, until a man had acquired political rights, he ought not to be called on to defend his country. the gentleman from south carolina says the principle of this section already exists in our militia laws. i admit it; and hence, i have always, when our militia laws have been under consideration, moved to strike out "eighteen" and insert "twenty-one." i hope, if we do not take recruits under twenty-one, we will alter the militia laws also, and let the country rely for its defence on those who manage its concerns. he hoped the house would consent to recommit the bill, and, in some one vote, show something like unanimity. mr. randolph rose to speak at the same moment with mr. macon, but, being first seen by the speaker, obtained the floor. mr. r. said that he was extremely happy, as he did not notice his friend from north carolina, at the time of his rising--in which case he should certainly have given way to him according to custom--that he had caught the speaker's eye first. i was about to rise, said mr. r., for the purpose of making a similar motion; and there are considerations on which it is unnecessary for me to dwell, and towards which i will not even hint, that render it at least as agreeable to me that the motion for recommitment should come from that respectable and weighty quarter, rather than from myself. i shall vote for it upon the same grounds which would have induced me ultimately to vote against the bill; because it contains provisions, i might say principles, unsusceptible of modification, and, in my judgment, hostile to all those principles which i have hitherto entertained, and to which it is impossible for me to give the sanction of my support. i shall not vote against the bill, for some of the reasons urged by the gentleman from massachusetts on my right, (mr. quincy,) with more of eloquence than temperance, and answered in a style not dissimilar by my worthy friend on my left, (mr. williams.) they both reminded me of a stroke of perhaps the only comic poet this country has produced: "the more they injured their side, the more argument they applied." the gentleman from massachusetts touched a chord, which, he ought to have known, was that which would insure the passage of this bill; which would excite a temper that would indispose the house to listen to the still small voice of conscience and of reason. i, sir, shall vote for the recommitment of this bill, and for reasons which i am almost ashamed to urge; which i hope to be excused for adducing. they have nothing to do with the question of impressment, of maritime war, of the invasion of canada, of indian warfare; but, sir, they are principles which, from length of time, i am sorry to say, have grown so obsolete, like some of the older statutes of those countries of more ancient date than ourselves, that, though i am not ashamed of them, i am almost ashamed to mention them--they are those professed by the republican party in the year , which i had the honor of attempting, at least, to support in those days--the principles, as reduced to record, of the present chief magistrate of our country in those days. in truth, it has been insinuated, if not asserted, with much more of candor than of logical address, that the principles of the bill are those of the former friends of the gentleman from massachusetts on my left, from which, i suppose, that gentleman has, in some way or other, deserted. this goes to prove, as far as the authority of the gentleman from vermont and of my worthy friend from south carolina has influence, that a long course of opposition has instilled into the gentleman something of the principles which did not belong to his friends while in power; that he is a deserter from his party, and consequently that i have remained a faithful sentinel at my post. i did not expect to hear it said, sir, that this bill was not to be opposed because a similar bill had been passed in what used to be called the reign of terror. in other words, i did not expect to hear it stated that the principles of the administration of the predecessor of jefferson, which, i suppose, he would now be as ready to recant as any man in the nation, justified the bill; that it ought to be passed, because it was fashioned in conformity to such doctrines. it is now, sir, i think, some thirteen or fourteen years ago, since a similar question was agitated on the floor of this house, and it was my lot to be compelled to sustain the same side of the question which i sustain to-day--for i will not use the qualified term, _attempt_ to sustain, against one of the proudest names in this country--against the man who now presides, i will not say with what splendor of abilities, at the head of the judicial department of our government.[ ] the house will readily agree that, plain must have been that question which could have been supported with such unequal odds; that strong must have been that side of the argument against such an advocate. it was one of those occasions on which the gentleman who then presided in the house declared "he never witnessed a more unpromising debate:" it was so--for it was one of those which tended to put that gentleman and his friends into the situation which so many of them--i will not say all--for there are some illustrious examples to the contrary--into the situation which many of them have since occupied. it was an assertion of the great fundamental principles of our government against arbitrary, high-toned courtly notions. the party then in power had been nearly as long in office as the party now in power, and looked at the question pending before them, with a very different eye, while they wielded the sceptre, than that with which they look at the question now, when the sceptre is applied to their backs. i am sorry to say that i fear that the converse of the proposition is, in a great degree, true, and that those principles which i then supported, and which were the ground of the revolution of political sentiment in which thereafter ensued, have fallen, as it were, in abeyance; that, in fact, we have forgotten our oracle. i have said, on a former occasion, and if i were philip, i would employ a man to say it every day, that the people of this country, if ever they lose their liberties, will do it by sacrificing some great principle of free government to temporary passion. there are certain great principles, which if they be not held inviolate at all seasons, our liberty is gone. if we give them up, it is perfectly immaterial what is the character of our sovereign; whether he be king or president, elective or hereditary--it is perfectly immaterial what is his character--we shall be slaves--it is not an elective government which will preserve us. but i am afraid i have fallen somewhat into error, by wandering from the course i proposed. on the occasion to which i have alluded, i maintained that the provision of a bill then pending, similar to that i now object to, was arbitrary, unconstitutional and unjust, because it was in the nature of an _ex post facto_ law. it _is_ of the nature of an _ex post facto_ law--it is more--it tends to exalt the military authority over the civil--it is this or it is nothing. if the section pronounce an ambiguous voice, to be construed according to expediency, then is there so much greater reason to recommit the bill, to reduce it to some shape which shall render it intelligible to the meanest capacity. it goes to alter the nature of a remedy--to impair the obligation of a contract. a man has contracted a debt, and his creditors arrest him. he enlists. he enlists through the grates of a prison, or within the limits of prison bounds. the contract between this man and the creditor is varied by the law, because the remedy of the creditor is changed. let us not have a descant on the cruelty of imprisonment for debt, and the expediency of introducing other provisions on that subject. that is not the question. it is on a law for exempting a particular class of men from those penalties and provisions which attach to all other classes of society. the military of all classes in society, that class which we are about to exempt from the general provisions attaching to other classes, is that of which the people of this country have been led by all our writers, by all our authorities, to entertain the most watchful and justly founded jealousy. it is on principles somewhat analogous to these, or rather the same, much better enforced, that an opposition was maintained to a law, not dissimilar in its provisions from this, in the winter of - . in the fury and tempest of his passion, my friend from south carolina seemed to overlook, what i thought he would be one of the last to forget, that we live in a limited government, possessing restricted powers, which we cannot exceed. has the constitution, with the most jealous scrutiny, defined the privileges of a member of this house, not permitting us to define our own, and made our principal privilege an exemption from arrest; and do we clothe ourselves with a power of exempting from arrest, _ad libitum_, a whole class of society--of creating a privileged order? we are, indeed, a privileged order, but we are privileged by the constitution. i ask the gentleman from south carolina whence he derives the power of creating a privileged order, and, shall this assumption of power be attempted in favor of the military, of all other classes? in my opinion, sir, the section to which i have had reference is freighted with most fatal consequences. i will suppose a case. suppose a man had a writ served upon him, and he afterwards enlists; that an escape warrant is taken out against him, and a contest ensues between the recruiting sergeant and the civil officer for this man, and that the civil authority supports its officer by calling out the force at its disposal. what would be the upshot? what is it to lead to? i need not state the consequences. these principles, sir, were urged thirteen years ago; they are urged now, in the same place, and on the same occasion. i cannot consent, in deference to any gentlemen, however great their zeal, to admit that i merely urged them at that time, from party views, to put down one description of persons in order to get into their warm berths. i cannot consent to such an admission, and, therefore, cannot give my support to any bill which contains such provisions. i have said this will be an _ex post facto_ law. it is so; it operates not only after the right has accrued to the creditor to sue out his writ, but after it is in a course of execution. let me put another case. suppose that congress were to pass a law that every malefactor under the sentence of death, who enlisted in the army, should not have the sentence of the law executed on his body. have you not as good a right to do that as to pass this law? would you consent to see a scuffle at the gallows between the civil authority and the military for the body of that wretch? i will put another case, sir. a son, who is the only support of a widowed and aged mother, in some moment of hilarity, perhaps of intoxication, led astray by the phantom glory, enlists in the army of the united states. i speak of one who is a minor. although i know that freemen of this country cannot be property in the sense in which a slave is property, yet, i do allow that the mother has a property in the time of that child; that he is under an obligation from which no human law can absolve him--an obligation imposed upon him by the maternal throes that issued him into life--by the nourishment drawn from the parent's breast--by the cherishing hand which fostered him through imbecility and infancy. you have not a right to take him--i hope, then, sir, that no question will be made of your power. i put another case, said mr. r. although an apprentice and a minor are not property in the sense in which a slave is property, there is a class of men, unluckily, in certain parts of our country (in philadelphia, for instance--i mean that class called "redemptioners,") who were sold but yesterday in the markets of that city. is the gentleman who represents that district (mr. seybert) willing that they shall absolve themselves from their contract by enlisting in the army? if he is, i am. a redemptioner sold in philadelphia for a term of years, bought in the market as fairly as any other commodity--(i say fairly, because bought with his own consent, and as he believes, for his own advantage)--such a person, if tempted to enlist, will, unquestionably, prefer the pay and emolument of the soldier in your army to his present situation. with regard to apprentices, i very much fear, sir, that those who enlist will, for the greater part, be of that description for whom their masters have advertised six cents reward, and forewarned all persons from harboring them. i remember, when a small boy, to have seen a series of prints by hogarth, called "the progress of industry and idleness." the gradations were not more regular than natural. the one ends with wealth, honor, and an eligible matrimonial connection with the daughter of his master, with whom he had been admitted into partnership; the other is brought up by the gibbet. their names were thomas idle and william goodchild. i believe, sir, that more of the thomas idles than of any other will enlist under this law, and i sincerely hope they will; for i very much fear that even william goodchild, after he has gone through the discipline of a camp for five years, will be utterly unfit for any other species of employment. this is not all. there are other considerations, which i forbear to touch--which, i should have supposed, would have brought themselves home to the bosom of every gentleman in this house. personal indisposition has prevented my attendance in this house, and i did not hear of this bill until last night. it was then mentioned to me by one who is fast in the old faith, and has often brought the house to a recollection of good old principles; and i did hope that they would this day have received more strenuous aid from that quarter than they have. i hope the house will refuse to pass the bill, if it were only to show that there is some one act of the administration of - , which the present possessors of power have not copied from their statute book. there remains only this, and the eight per cent. stock loan--and we are saved from the latter only by the infractions of that law, which we imperiously refused at the last session to repeal. it is the infractions of this law which has poured money into our coffers, and saved us from the disgrace of an eight per cent. loan. there is another part of this bill which strikes me as being inexpedient; but, as i do not wish to blend considerations of expediency with those of great and vital principles, i shall waive any thing on that head. the question was then taken on the motion to recommit the bill, and lost. for recommitment , against it . the question was then taken that the said bill do pass; and resolved in the affirmative--yeas , nays . monday, november . _proposed new state._ on motion of mr. poindexter, the house resolved itself into a committee of the whole, on the bill to authorize the people of mississippi territory to form a constitution and state government, and for the admission of the same into the union. mr. richardson moved to strike out the first section of the bill. this motion was supported by mr. pitkin, principally on the ground of the inexpediency on general principle, of giving to a territory embracing a population of only twenty or thirty thousand souls, a representation in the senate equal to that possessed by other states, some of which contained a million of inhabitants. another objection was, that the bill proposed to incorporate within a state the town and citadel of mobile, now in possession of a foreign power; and thus make it the duty of a state to expel from its territory a force which the president had not thought fit to remove. the motion was opposed by mr. poindexter, who contended that the population of the territory was much greater than was represented; and even if it were not what it is, that a precedent was to be found in the incorporation of ohio and of louisiana. he represented in glowing terms, the anxiety of the people of the territory to be enabled to bear their share of the expense as well as the dangers of the present war in support of our just rights; in which cause they had already employed twelve hundred militia, which the gentleman could not say of the populous state he represented; and if that were not enough, they were ready to put a bayonet into the hands of every man in the territory capable of bearing arms. as to the occupancy of mobile by the spaniards, it was not a valid objection; but if it were, he said he hoped it would soon be invalidated; he trusted that the spirit of the country would aid the disposition of the executive to repel every foreign enemy from our territories. the motion to strike out the first section was negatived, yeas . after some amendment to the bill, the committee rose and reported it to the house. mr. pitkin renewed the motion to strike out the first section of the bill; which was negatived by a large majority. the bill was then ordered to be engrossed for a third reading. tuesday, november, . _mississippi territory._ an engrossed bill to enable the people of the mississippi territory to form a constitution and state government, and for the admission of such state into the union on an equal footing with the original states, was read the third time; and, on the question that the same do pass, it passed in the affirmative--yeas , nays . wednesday, november . _constitution and guerriere._ mr. bassett communicated to the house the following documents: navy department, _nov. , _. sir: in order to enable the committee to form a satisfactory opinion as to the compensation to be provided for the officers and crew of the frigate constitution, for the capture and subsequent destruction of the british frigate the guerriere, i have the honor to state to you that the constitution rated , and mounted guns; that the guerriere rated and mounted guns. the guerriere, although entirely dismasted, and in other respects much crippled, could have been brought into port without incurring any other risk than that of recapture; but captain hull conceived that if he had manned the guerriere for the purpose of sending her into port, he would have so far reduced the crew of the constitution that he might have subjected both vessels to capture. he presumed that, under all circumstances, it would be better for him to destroy the guerriere, and preserve the force of the constitution unimpaired, and his having done so unquestionably proceeded from the most patriotic considerations. the guerriere was a frigate of the first class in the british navy; and, no doubt, when the engagement between the constitution and her commenced, she was completely fitted in all respects for the most serious service. the cost of such a ship, independently of her stores, could not have been less than two hundred thousand dollars, and her stores were worth, in all probability, fifty thousand dollars at least; besides, she had on board a number of prize goods, the value of which cannot be ascertained; but was probably equal to fifty thousand dollars more. so that the whole value of the guerriere, her stores and prize goods, at the time the action commenced, may fairly be estimated at three hundred thousand dollars. had captain hull have incurred the risk before mentioned, and succeeded in getting the guerriere into port, the officers and crew of the constitution, considering the guerriere as her equal, would have been entitled to the whole of the guerriere, her stores and prize goods. sooner, however, than run the risk of losing the constitution, he determined to destroy the whole. the question then arises, what, under these circumstances, ought the officers and crew to be allowed? for my own part, i have no hesitation in giving it as my opinion that the sum of one hundred thousand dollars would not be too liberal a provision, or too great an encouragement for the great gallantry, skill, and sacrifice of interest displayed on this occasion; and i am persuaded that, if such a provision were made, the difficulties of manning our frigates, at present experienced, would vanish. it may further be remarked, that captain hull, while on the cruise, on which he captured and destroyed the guerriere, burnt two enemy's vessels, viz: the brig lady warren and the brig adeora, and obliged the enemy to burn the brig dolphin, with a cargo of hemp and russia goods, and to abandon an english barque laden with timber: for no part of which have the officers or crew of the constitution received any compensation. i have the honor to be, with great respect, sir, your obedient servant, paul hamilton. hon. b. bassett. washington, _nov. , _. sir: in compliance with your request, i have the honor to state to you that my opinion, as to the value of the guerriere, at the time the action between her and the constitution commenced, is, that, exclusively of her stores and prize goods, she was probably worth two hundred thousand dollars; and my impression is, that her stores and prize goods must have been worth one hundred thousand dollars. i am informed that, independently of their stores, the frigate president cost two hundred and twenty thousand dollars; that the chesapeake cost two hundred and twenty thousand dollars; and that the congress cost one hundred and ninety-seven thousand dollars. these vessels were certainly built on good terms; and it is from their cost that i form my idea as to the probable value of the guerriere; and my impression as to the value of her stores and prize goods is derived from personal observation and information obtained on the occasion from different persons. i have the honor to be, very respectfully, sir, your obedient servant, isaac hull. hon. burwell bassett, _chairman, &c._ _medals and prize money._ on motion of mr. bassett, the house resolved itself into a committee of the whole, on the report of the naval committee on the proposed vote of a gold medal to captain isaac hull, late commander of the frigate constitution, and silver medals to the other officers, and a sum of ---- thousand dollars, to be distributed as prize-money among the officers and crew, as an expression of the sense entertained by this house of their bravery and conduct in attacking and vanquishing the british frigate guerriere. mr. bassett spoke in support of the resolution. he stated the magnitude of the achievement; the amount of value of the capture; and assigned many reasons particularly in favor of the donation to the officers and crew, on whom collectively he proposed to bestow the sum of $ , , and made a motion to that effect. he said the prize money arising from the capture, had not the public service required the destruction of the guerriere, would have amounted to much more; and the merits of those concerned in the capture entitled them to this remuneration. he dilated on the present low price of wages on board our public ships, and adverted to the seaman's hardships and the seaman's risk, &c. the question on filling up the blank with "one hundred thousand dollars," was then taken, and decided in the affirmative-- to . the committee rose and reported their agreement to the resolution. friday, november . a new member to wit, from georgia, william barnett, returned to serve as a member of this house, in the place of howell cobb, resigned, appeared, was qualified, and took his seat. tuesday, december . _naturalization laws._ on motion of mr. lacock, the house resumed the consideration of the bill supplementary to the naturalization laws. on motion of mr. lacock, the bill was amended by adding thereto the following additional section: "_and be it further enacted_, that every naturalized citizen of the united states, or the territories thereof, shall forfeit such citizenship on his voluntarily departing from and remaining out of the united states for and during the term of two years." on motion of mr. fitch, the following other section was also incorporated in the bill: "_and be it further enacted_, that all persons who shall have been naturalized subsequent to the th day of june last, shall be entitled to all the rights and privileges of citizens of the united states, from the date of such naturalization, any thing in the declaration of war against great britain, or any other act, to the contrary notwithstanding." mr. fisk moved to strike out _nine_ months, the time allowed to citizens to take the benefit of our naturalization laws, and insert _three_. he said he could not see why so long a time should be allowed. the longest time extended to our citizens in canada is thirty days; and he did not see why so much more liberality should be extended to their citizens here. he was opposed to their remaining here longer than necessary, the more especially as they employed themselves in exciting divisions, and fomenting the party feuds which now agitate the country. mr. lacock thought the time proposed was too short; that in some districts they could scarcely hear of the law within that time, and at any rate might not be able to meet with a tribunal, at which to comply with the requisites of the naturalization law, before the expiration of that period. mr. fisk withdrew his motion for the present. thursday, december . shadrack bond, returned to serve as a delegate, in this house, for the illinois territory, appeared, was qualified, and took his seat. saturday, december . _privateer captures._ mr. mckim presented a petition of commodore joshua barney, on behalf of himself and the owners, officers, and crews, of sundry private armed vessels of war, "praying to be considered as claimants to all property proven to be enemy's property, found on board of vessels sailing under the american flag, having on board british manufactured goods, coming from great britain to the united states, and under the protection of british licenses, which have been captured by them, or that they may participate as '_informers_' in the seizure and condemnation of the said property under the non-importation."--referred to the committee of ways and means. monday, december . another member, to wit, from virginia, edwin gray, appeared, and took his seat. tuesday, december . another member, viz: from virginia, william a. burwell, appeared, and took his seat. wednesday, december . _imprisonment of american seamen._ mr. bassett offered to the house the following resolution: whereas, it is represented, that great britain has seized sundry persons fighting under the american flag, laying claims to them alike incompatible with justice and the rights of the united states as an independent nation: _resolved_, that the president be requested to lay before this house the information he has received on that subject, and the measures taken to redress an evil which violates the rights and interests, and outrages the feelings of a free and independent people. mr. bassett stated that several cases had come to his knowledge in which the british naval commanders had seized persons taken on board of american armed vessels, and confined them, in one instance, in irons, and in another had transported them to england for trial. it was not his intention now to go into an examination of these cases. such an examination was not necessary to authorize the house to call for the information required. he had given its present form to the motion he had offered, because its adoption would go to show that the councils of the nation were not indifferent to this subject. it would, he trusted, further enable the executive to show that it never slumbered on any occasion in which the rights of the people were concerned; and he had no doubt the information to be received would show it. when it was received, the house might take what course it pleased; perhaps no legislative act would grow out of it. but it was proper, in any event, that the house should be in possession of information required. mr. milnor said he had no objection to the call for information, but he excepted to the form of the resolution, for two reasons. it was prefaced by a preamble, which was not usual in such cases, which preamble, moreover, assumed as fact circumstances of which the house had no official or authentic information. his other objection was, that it expressed an opinion on a point on which he was not ready to express one. mr. m. said he knew not the extent of the evil of which the gentleman complained. if it was merely that great britain laid claim to her own subjects fighting our battles against her, he would at least not say that this was an act on the part of great britain deserving all those severe epithets which the gentleman had thought proper to attach to it. the resolution stated facts not before the house, and expressed an opinion on an act the degree of enormity of which depended on the circumstances respecting which it was proposed to ask for information. mr. m. wished that the house should not lightly be compelled into a discussion of this subject, and especially as the gentleman had intimated the probability that no legislative act was to grow out of the information called for. mr. seybert said, as his colleague's principal objection to the motion appeared to be a difficulty as to facts, he hoped to procure his vote for its adoption by stating at least one which had come to his knowledge. i, said mr. s., had the honor to have a nephew on board the ship wasp. he informed me this morning that after they had been carried into bermuda, several of their crew were taken and confined in irons; that he saw them in that situation; and that their crime was, having fought the battles of our country. what may be my colleague's feelings on this occasion, i know not--i hope they are honorable to himself and the house--for myself i wish the subject investigated. mr. s. concluded by expressing his hope that the resolution would pass. mr. macon said he was anxious to obtain information on this subject, but doubted the propriety of the preamble. after the information was received, it would be time enough to express an opinion on the subject. he had no doubt that we must at last come to the determination to protect every man that is on board of a ship of the united states. it is what great britain herself does; and in this respect we ought to follow her example. if these people undertake to fight our battles, we ought to protect them. mr. m. said he was opposed to the preamble, because he did not wish to give reasons to the departments of the government for any call for information the house thought proper to make; it was enough that the house should ask for it, and the president should give or withhold it. the practice heretofore was against the course now pursued. mr. bigelow said he had no objection to the call for information, divested of the preamble and the opinion expressed in it, except that it did not go far enough. he proposed to amend it by adding thereto the following words, "accompanied with all the evidence in his possession, which will tend to show whether such persons are american citizens or british subjects." mr. bassett said he was indifferent as to the form, provided he obtained the substance; he, therefore, should submit to such modification as the gentleman from north carolina should think proper to make. but, said mr. b., as it has been said that there is no information before the house, i state that i understand, and it is my belief, that six men of the crew of the united states brig nautilus were detained and sent to england for trial; and that commodore rodgers had detained as hostages for their safety twelve british subjects. i state also to the house that i understand and believe that six seamen of another armed vessel have been detained, and that general pinckney had detained a like number of british subjects. i state that i have received information that the boatswain of the wasp had been put in irons after she was taken. these violations of humanity and the law of nations i believe to require retaliation. when i voted against a bill on this subject (mr. wright's) it was not because i was opposed to retaliation. no, sir; retaliation in war is often mercy--it puts an end to those cruelties which would otherwise frequently disgrace parties at war, and is indispensable in the conduct of hostilities. mr. b. having withdrawn his motion, it was substituted by the following, offered by mr. macon: "_resolved_, that the president of the united states be requested to cause to be laid before this house any information which may be in his possession touching the conduct of british officers towards persons taken in american armed ships." mr. randolph said he trusted that the resolution now before the house would meet with no objection; although against the resolution as first proposed, he must have voted for it, notwithstanding all the odium which might have attached to such a vote. he hoped, he said, that rigorous retaliation would take place if our countrymen found in arms had been treated as criminals and not as prisoners of war. he hoped we should have ample atonement for every drop of american blood which should be spilt in such manner. having taken occasion to pay a handsome compliment to the gallantry of our navy, which was not heard with sufficient distinctness to be reported, mr. r. concluded by hoping there would be no objection to the resolution. mr. milnor said he thought it due to the gentleman from virginia (mr. bassett) to state that, owing to the noise which prevailed in the house, he had not before heard the statement which the gentleman had now been kind enough to make. he had heard of no such case as that alluded to by his colleague; but he trusted he had been sufficiently guarded not to commit himself, even to the most invidious construction, as opposed to a proper investigation of this subject. to the present motion he yielded his perfect acquiescence. mr. m. said he trusted that in any thing that related to the honor of the country in the contest in which we are now engaged, whatever might have been his opinion of the propriety of entering into it, he should not be found more backward than other gentlemen in sustaining the just rights of the nation. mr. sheffey said, if american citizens had been treated in the manner represented, he was clearly of opinion that severe retaliation ought to follow. but did gentlemen pretend that a british subject, running away from a british vessel, and found on board of one of ours, was to be considered as entitled to be treated as a prisoner of war? could this doctrine be asserted by any gentleman? he presumed not. the resolution, as it now stood, would not elicit the facts material as to this point. he, therefore, moved to amend it, by inserting, after the word "persons," the words "other than british subjects." mr. seybert said he was happy to hear the declaration last made by his colleague, (mr. milnor.) he hoped the amendment first offered would be rejected with disdain. [the speaker declared that such language was not proper in debate, the expression being too strong, and such as sometimes led to a personal altercation, always to be avoided.] mr. s. thanked the speaker for his caution; he meant no personality; but he thought it did not become this house to debate whether the persons in question were british subjects or not, when they had been put in irons for fighting the battles of the country. let the proof rest on the aggressor on national law and the violator of the rules of war. he hoped the house would without hesitation reject the amendment. i may go too far, said he, by stating too much; but i will say thus much without risk of contradiction: that the boatswain of the wasp, a warrant officer of the united states, had been twelve years within the united states and has a wife and children here. these, i hope, are sufficient characteristics to insure him our support: i will give him mine, and have no doubt the house will do the same. mr. randolph said that the proposed amendment brought strongly to view the impropriety of the house, on the rude suggestions of any member, committing itself hastily by a definite determination which to-morrow they might be disposed to retract. he believed this was one of those cases in which there was no necessity for haste. the house would be as competent to-morrow, to decide on the subject of the resolution and the proposed amendment, and in a manner to redound, at least, as much to the credit of the house and the national good, as now. with regard to his own opinions, if they were of any importance with his worthy colleague, he would at once say they were on this subject the opinions of that man, from whom he never did dissent but upon one question, without being wrong--that man who was emphatically called for eight years our commander-in-chief--the founder of this nation--the author of the constitution--our first president--the man who was made for the office, and the office for him--the man who discharged all its duties so perfectly, as if it had been only to show those who come after him their incompetency. mr. r. said he would ask his worthy colleague, what he supposed would have been the fate of a certain benedict arnold, had he been brought alive to the american camp, after his desertion from it? on that subject there can be but one opinion. on another question, if his opinion was of any value, he would state it. it was not a loose thought, taken upon the impulse of the moment; but the result of meditation and reflection. as long as foreigners, naturalized by our laws, remain on our soil, he was ready to throw over them the mantle of the constitution--he would protect them, as he would protect the native citizen, at the hazard of the last shilling of the public revenue, and the last drop of the blood of our people. but, when they go abroad on the high seas; when they come to this country to acquire a neutrality of character, now indeed no longer to be found here; when they come here only to neutralize goods in the baltic, at heligoland, in the black sea, the white sea, and the red sea, and the passing to and fro on the highway of nations; if it please god, their old master george the third, or napoleon, or alexander of russia, should lay his hand on them, they were welcome, mr. r. said, for him. he would not spend one shilling, one drop of american blood, to redeem such a man; much less would he have retaliation executed on subjects of the nation claiming him, with whom we should happen to come in collision, which might have to be expiated by the native blood of these states. i would not, said mr. r., have the new england man or old virginian executed by any despot, limited or unlimited in authority, in order to secure to us the worthless property in the man who is a christian in christendom and a mussulman in turkey. but, mr. r. asked, did not this question assume a different shape, when this man was not going to and fro on the high seas in search of plunder, which he calls patriotism, but, when he is found in a public ship of war of the united states? on that subject--for it was a new question--he was not prepared to decide. it was not, mr. r. said, and the house might rely on it, the sentiment of the people of these states--it might be of some comparatively small, and therefore only insignificant section of the community--that we should enter into a contestation with france and england for property in their subjects. mr. r. here drew a comparison between the practice of harboring slaves in some of our northern cities, philadelphia for instance, and the countenance given in this country to european emigrants. as to these foreigners, mr. r. said he owed them nothing. he was sorry they had ever found refuge here--he wished he had driven them from our shores--or have permitted, as we have the merchants, to go out where they pleased, without attempting to protect them. mr. quincy rose, he said, simply to express his regret, that a debate in this form and manner should have arisen. the question which had been touched, was one which required all the information and light which could be shed on it. the principles connected with it were so numerous and critical, that it required all the reflection of which gentlemen were capable, to enable them to discuss and decide it in a proper manner. he rose also to express his regret that a motion for amendment should be made by a gentleman with whom he frequently coincided in opinion, which went to exclude information of the manner in which officers treated persons other than british subjects. he could not vote against receiving information of any kind--particularly on a subject so interesting. mr. q. was proceeding in his remarks, when-- mr. sheffey withdrew his motion. mr. bassett explained his ideas of expatriation. he would not protect the man who had left the country with an intention not to return, &c., but he would protect the man who went out to fight the battles of the country. mr. randolph rose for the purpose of moving an amendment. he adverted to the language of the resolution, and drew a distinction between the character of privateers and of our public armed vessels. was it competent, he asked, to the government to receive as testimony the statement of the commander or crew of an american corsair? it was well known, too, he remarked, that the high wages which had been paid to the crews of the privateers, was one of the reasons why the american navy was in some degree unmanned. and, was it not a different question, whether we should interpose our authority between the subject of a foreign nation and his government, when that subject is fighting your battles, bleeding on the deck of your public ship, at twelve dollars a month, and when he is decoyed into a corsair by the temptation of eighty, fifty, or forty dollars a month? there is a difference, sir, said mr. r. i trust, said he, if we receive the information we are about to ask, we shall get it from a pure and authorized source, such as no man can question. i mean the commanders of our public ships of war. mr. r. concluded by moving to strike out "american," and insert "public," so as to read "public armed ships." mr. widgery expressed his surprise at the various expedients resorted to, to embarrass this question; and hoped this would have the same fate as the other. he said he could tell the gentleman that many privateers had been manned without a cent of wages. but, suppose they had been manned in other ways, were not privateers as useful in annoying the enemy as public ships? no man that knew any thing about maritime affairs would deny it. whereever our privateers had come across an armed vessel of the enemy, of any thing like equal force, they had done their duty like american tars. we are at war, mr. w. said, and ought to check the enemy wherever we come in contact with them. he believed the privateering carried on had been of great advantage to us and injury to our enemy. as to the objection which had been offered to receiving the statement of their commanders, what were gentlemen afraid of? no disparagement to the commanders of the navy, (for he respected them all,) he knew gentlemen commanding privateers whose opinions were entitled to as great respect as that of any other, and whose word could not be questioned. in relation to the cases referred to in the resolve, particularly that of the boatswain, mr. w. said we were bound by every principle of the law of nations to support him to the last cent of our money, more especially as he had a warrant under the seal of the united states. the conduct of our enemy was the less justifiable, as she manned her own ships with people of all nations. mr. randolph's proposed amendment was negatived by a large majority; and the resolution was agreed to without further debate or opposition. friday, december . _macedonian and frolic._ the following message was received from the president of the united states: _to the senate and house of representatives of the united states_: i transmit to congress copies of a letter to the secretary of the navy, from captain decatur, of the frigate "united states," reporting his combat and capture of the british frigate macedonian. too much praise cannot be bestowed on that officer and his companions on board, for the consummate skill and conspicuous valor by which this trophy has been added to the naval arms of the united states. i transmit, also, a letter from captain jones, who commanded the sloop-of-war wasp, reporting his capture of the british sloop-of-war, the frolic, after a close action, in which other brilliant titles will be seen to the public admiration and praise. a nation feeling what it owes to itself and to its citizens could never abandon to arbitrary violence on the ocean, a class of them which gives such examples of capacity and courage, in defending their rights on that element; examples which ought to impress on the enemy, however brave and powerful, a preference of justice and peace, to hostility against a country whose prosperous career may be accelerated, but cannot be prevented, by the assaults made on it. james madison. washington, december , . u. s. ship united states, at sea. october , . sir: i have the honor to inform you that, on the th instant, being in the latitude ° north, longitude ° ' west, we fell in with, and, after an action of one hour and a half, captured his britannic majesty's ship macedonian, commanded by captain john carden, and mounting forty-nine carriage guns, (the odd gun shifting.) she is a frigate of the largest class, two years old, four months out of the dock, and reputed one of the best sailers in the british service. the enemy being to windward, had the advantage of engaging us at his own distance; which was so great that, for the first half hour, we did not use our carronades, and at no moment was he within the complete effect of our musketry or grape. to this circumstance, and a heavy swell which was on at the time, i ascribe the unusual length of the action. the enthusiasm of every officer, seaman, and marine, on board this ship, on discovering the enemy, their steady conduct in battle, and the precision of their fire, could not be surpassed. where all have met my fullest expectations it would be unjust in me to discriminate. permit me, however, to recommend to your particular notice my first lieutenant, william h. allen; he has served with me upwards of five years, and to his unremitted exertions in disciplining the crew is to be imputed the obvious superiority of our gunnery exhibited in the result of this contest. subjoined is a list of the killed and wounded on both sides. our loss, compared with that of the enemy, will appear small. among our wounded you will observe the name of lieutenant funk, who died a few hours after the action; he was an officer of great gallantry and promise, and the service sustained a severe loss in his death. the macedonian lost her mizzenmast, fore and main-topmasts, and main-yard, and was much cut up in her hull. the damage sustained by this ship was not such as to render her return into port necessary; and had i not deemed it important that we should see our prize in, should have continued our cruise. with the highest consideration and respect, i am, sir, your obedient humble servant. stephen decatur. hon. paul hamilton. _list of killed and wounded on board the united states._ thomas brown, new york, seaman; henry shepherd, philadelphia, seaman; william murray, boston, boy; michael o'donnel, new york, private marine; john roberts, private marine--_killed_. john mercer funk, philadelphia, lieutenant, (since dead;) john archibald, new york, carpenter's crew; christian clark, ditto, seaman; george christopher, ditto, ordinary seaman; george mahar, ditto ditto; william james, ditto ditto; john lawton, ditto, private marine--_wounded_. on board the macedonian there were thirty-six killed, and sixty-eight wounded; among the former, were the boatswain, one master's mate, and the schoolmaster; and of the latter were the first and third lieutenants, one master's mate, and two midshipmen. new york, _november , _. sir: i here avail myself of the first opportunity of informing you of occurrences of our cruise, which terminated in the capture of the wasp, on the th of october, by the poictiers, of seventy-four guns, while a wreck from damages received in the engagement with the british sloop-of-war frolic, of twenty-two guns, sixteen of them thirty-two-pound carronades, four twelve-pounders on the main deck, and two twelve-pound carronades on the top-gallant forecastle; making her superior in force to us by four twelve-pounders. the frolic had struck to us, and was taken possession of two hours before our surrendering to the poictiers. we had left the delaware on the th; the th had a heavy gale, in which we lost our jib-boom and two men; half-past eleven on the night of the th, in latitude degrees north, and longitude degrees west, we saw several sail, two of them appearing very large; we stood for them for some time, then shortened sail, and steered the remainder of the night the course we had perceived them on. at daylight, on sunday the th, we saw them ahead; gave chase, and soon discovered them to be a convoy of six sail, under the protection of a sloop-of-war; four of them large ships, mounting from sixteen to eighteen guns. at thirty-two minutes past eleven a. m., we engaged the sloop-of-war, having first received her fire at the distance of fifty or sixty yards, which space we gradually lessened until we laid her on board, after a well-supported fire of forty-three minutes; and although so near, while loading our last broadside, that our rammers were shoved against the side of the enemy, our men exhibited the same alacrity which they had done during the whole of the action. they immediately surrendered upon our gaining their forecastle, so that no loss was sustained on their side after boarding. our maintop-mast was shot away between four and five minutes from the commencement of the firing, and falling, together with the maintopsail-yard, across the larboard fore and fore-topsail braces, rendered our head-yards unmanageable the remainder of the action. at eight minutes, the gaff and mizzen topgallant-mast came down, and at twenty minutes from the beginning of the action every brace and most of the rigging was shot away. a few minutes after separating from the frolic both her masts fell upon deck; the main-mast going close by the deck, and the foremast going twelve or fifteen feet above it. the courage and exertions of the officers and crew fully answered my expectations and wishes. lieutenant biddle's active conduct contributed much to our success, by the exact attention paid to every department during the engagement, and the animating example he afforded the crew by his intrepidity. lieutenants rogers, booth, and mr. rapp, showed, by incessant fire from their divisions, that they were not to be surpassed in resolution or skill. mr. knight, and every other officer, acted with a courage and promptitude highly honorable, and i trust have given assurance that they may be relied on whenever their services may be required. i could not ascertain the exact loss of the enemy, as many of the dead lay buried under the masts and spars that had fallen on deck, which two hours' exertion had not sufficiently removed. mr. biddle, who had charge of the frolic, states that, from what he saw, and from information from the officers, the number killed must have been about thirty, and that of the wounded about forty or fifty; of the killed, is her first lieutenant and sailing-master; of the wounded, captain winyates, and the second lieutenant. we had five killed and five wounded, as per list: the wounded are recovering. lieutenant claxton, who was confined by sickness, left his bed a little previous to the engagement, and though too weak to be at his division, remained on deck, and showed, by his composed manner of noting its incidents, that we had lost by his illness the services of a brave officer. i am, respectfully, &c. jacob jones. hon. paul hamilton. the message and documents having been read-- on motion of mr. randolph, they were referred to the committee on naval affairs, with instructions to report a suitable expression of the legislative approbation of the services detailed. mr. r. said he did not wish by this motion to limit the committee to reporting a resolution; or to preclude them from expressing approbation in a more substantial manner. wednesday, december . _navy of the united states._ the house resolved itself into a committee of the whole, on the bill from the senate, which had been previously twice read in the house. mr. sawyer made a motion to add the word "teen" to "four," so as to make it fourteen gun ships. mr. s. thought it a proper occasion to try the question whether we were to have a navy or not. he took the occasion to congratulate the house upon the repeated victories of our little navy over the enemy; and of the grateful prospect of a speedy termination to the despotism of the seas. national piracy is about to be exterminated, and all nations permitted to traverse their great highway in safety. the thing can be done; and if we say so, with the will of god, will be done. the experiment upon which the proof hangs has been made. british arms cannot withstand american upon the sea. the bully has been disgraced by an infant; and fear shall no longer restrain an abject world from vindicating its long violated rights. give us but a respectable fleet, and it is all we ask. but what can we do with four seventy-fours? they are a mere mockery. if we do mean to make a serious stand upon the ocean, such a force must be out of all character. if we mean merely to annoy her trade, (and he trusted we meant more,) frigates will do; but, to make any serious impression that way, we must have a respectable fleet; at least, in his opinion, fourteen sail-of-the-line. that would give us a preponderance on our own coast, and enable us to bring in our prizes with safety. who can bear the idea of our being obliged to burn or sink all the ships we may take away from the enemy, for fear of their being recaptured? he thought we should save enough by the protection they would afford to our prizes to support the expense of them. we can easily support such a force. the expense, distributed over our widely-extended population, would be less than a dollar a head; and, where is the american who would grudge such a sum for such an object? the people, i am confident, will cheerfully pay it, because we are now at war, and a navy is found the most efficient weapon in our hands against the enemy. he therefore trusted that if it was the disposition of the house to have a navy, they would establish such a one as would answer some purpose. mr. seybert said he did not anticipate that the bill from the senate would have been called for to-day by the chairman of the naval committee; notwithstanding he had bestowed some attention on the subject, he confessed his remarks would be made in a manner not entirely satisfactory to himself; he would, however, proceed with them. mr. chairman, said he, i wish it was as easy to build, equip, and man the seventy-fours, as it will be to add the word "teen" to "four," as is proposed by the gentleman from north carolina. so far from adding to the number of these ships, contemplated by the bill, he had intended to move that no seventy-four gun ships should be, at this time, authorized by the legislature. on a former occasion, mr. s. continued, when a naval establishment was the subject under consideration, he stated at length his reasons for opposing the propositions before the house. the opinions which he then advanced concerning an extensively permanent naval establishment for the united states were still believed to be well grounded. he did not hesitate to declare his intention, at this time, and under the pressure of present circumstances, to yield much to general feelings, and the sentiments of the nation; nevertheless, he should guard against being carried too far by the current of popular opinion. it is equally my duty, said he, to keep in view what is conceived to be the permanent and vital national interest. he declared a uniform opposition to that establishment, which could not be brought within the means and resources of the nation to maintain it. we have made war, said he, to guarantee the honor and independence of the nation, as well as for the support of the just rights of our citizens; with these objects in view, he had consented to authorize a regular force of , men, and advocated one more numerous, though in principle he was opposed to standing armies. if, then, a great portion of my fellow-citizens deem an increase of the naval establishment essential to promote the great work, why should it be refused on my part? no opposition would be made by him to the principle or spirit of the bill before the house, though, he confessed, he did not approve the provisions as to the kind of force therein contemplated. mr. s. continued.--at this time our principal object should be, to authorize that species of force which can be furnished in the shortest period, and which promises to be the most efficient in the present contest. if the views of the government were not now confined to the present war, he considered it inexpedient to build public ships. it was necessary that the revenue should be cautiously applied. if it be employed so as to carry on the war with vigor, he would not shrink from any appropriation which could tend to produce that effect; by protracting the contest for the want of means, expense will be accumulated, and we should achieve nothing. mr. s. would not assent to an increase of the navy, with a view to reconcile other measures to the opposition--to him that vote promised no such result. our political opponents, continued he, will tell us, as regards the navy, you are doing right to add to it; thus far we will go with you; we always maintained this to be the proper course; as to your golden dreams in canada, we will abandon them to yourselves exclusively. such were his present impressions; it would gratify him to find himself to have been mistaken. he declared his intention to oppose the building of 's, or double-decked ships, and to advocate a greater number of the largest class frigates. if, however, his statements should not prove satisfactory to the house, he declared the failure would not induce him ultimately to vote against that species of force which a majority might deem expedient. if, said mr. s., the great reason for now laying the keels of the double-decked ships, be (as was lately acknowledged elsewhere by high authority) to test the intentions of the legislature as to a permanent naval establishment, he, for one, declared, he would not thus be tested, nor could he be thereby induced to vote in favor of the proposition; he would always be governed by circumstances. the declaration of the committee, that it was proper to meet "like with like," or, in other words, because the british have seventy-four gun ships, the united states should have them of the same class, would have no effect on him. we might as well say, because there are ships in the british service, which carry one hundred and twenty guns, we should also have such. this reasoning is fallacious. no one has attempted to advocate the latter proposition. admitting that you had four seventy-four gun ships on your navy list, he maintained, they would answer no good purpose. in the course of the following year, their number will be more than doubled and trebled on the part of the enemy. the consequence would be, that your most expensive ships must either combat under very unpromising circumstances, or they would be blockaded in your harbors, and then be worse than useless; they must be kept at a heavy expense, and their crews would deprive other ships of the men necessary for their equipment. he said, the opinions which he had just advanced were not the result of idle speculations at the fireside; they were supported by intelligent commanders, and rested upon the firm base of experience; they were confirmed by the conversations of some whose splendid achievements adorned the pages of our revolutionary history, and by others, who rank as heroes of the present war. he asked, why need we resort to other authority, when that of the head of the naval department can be brought to bear testimony in favor of the propositions laid down? in the year , the secretary of the navy informed the house that twelve seventy-fours, as many frigates, and twenty or thirty smaller vessels, "would probably be found sufficient to insure our future peace with the nations of europe." in , it was declared that, "twelve sail of seventy-fours and twenty well-constructed frigates, with our smaller vessels," were necessary to annoy the commerce of the enemy, and guard our coasts. to this he added that, in the year , during a state of peace with the united states, the british had seven ships-of-the-line on the american stations, independent of fifties, frigates, and smaller vessels; at the same time, they had thirty-nine ships-of-the-line on the stocks! tell me, said he, what is to keep a great proportion of them from your coast in ? mr. mckee said, he had not expected this subject would have been taken up to-day, or to say any thing on it when it should be taken up. but, said he, for what purpose, i feel impelled to ask, are you going to build these vessels? are you to spend four or five millions of dollars, in addition to your present extraordinary expenditures, to protect commerce? will this old argument, in favor of a navy, now be used, which we have so often heard heretofore? sir, where is your commerce now to protect? will you protect that clandestinely destined to great britain? no, surely. will you protect that destined to the coast of france? let us reflect what commerce you can carry on with france. none worth protection, or of any moment to the great body of the american people. does france purchase your tobacco or cotton, which heretofore have found a market there? she has never been a purchaser of provisions or breadstuffs. what is the state of trade between us and france? your cotton, in france, is taxed with enormous duties. no man who is not under the influence of the moon would, at this time, think of making a shipment there. would you ship your commerce there merely to surrender so much property into the grasp of the emperor? it would be the extreme of folly. where, then, will you protect your commerce? to the baltic, sir? you can carry on in that quarter no commerce at all interesting to the great body of the american people. in what does your export to that region consist? in articles of colonial produce; not in articles the produce of your soil. will you tax the great agricultural community for the purpose of protecting this extraneous commerce? i ask if the people of the west, of the atlantic, of the middle states, or any other portion of the american people, will be content to be taxed to support a navy for the protection of a commerce in foreign produce, by which but few individuals in the nation can be benefited? there is no commerce to protect, unless it be that which exchanges specie for the production of the east indies, and benefits no part of the community. having no valuable commerce now to protect, the object of adding vessels to your navy, must be to fight your battles at sea. if you would propose a navy as a means of carrying on war, bend your resources to that object. we have been told that the trident of neptune is passing into our hands. but, sir, the sovereignty of the ocean is not to be acquired by four ships-of-the-line and five or six frigates. you can have no legitimate object in building such vessels as proposed, unless it be to carry on the war. if that be your object, make your means commensurate to the end you have in view. do you yet contend that the object is to protect commerce? your commerce is not worth the cost. and who would pay it? the merchants? no, sir. they will pay only their proportion. i recollect, when a boy, to have seen a little book, in which i admired the pictures more than the reading, in which were the representations of a king, a priest, a soldier, and a farmer; a label issuing from the mouth of each contained these words: the king says, "i govern all;" the priest, "i pray for all;" the soldier, "i fight for all;" and the farmer, "i pay for all." this, sir, is perfectly true as regards the american farmers--they pay for all. and what advantage do they derive from it? what advantage are my constituents to derive from the expenditure of this money? thursday, december . _increase of the navy._ the house again resolved itself into a committee of the whole on the bill to increase the navy of the united states. mr. seybert moved to amend the first section of the bill by striking out "four seventy-fours and," so as to erase the provision for building vessels of that description. mr. gold.--the provision in the bill to introduce ships-of-the-line into the navy, i consider, mr. chairman, as fixing the great policy of a navy under this government. frigates we have had, but in common with petty nations; for the barbary powers have frigates; the provision now offered rises higher and promises something worthy of the constitution, something honorable to the government. i rejoice, mr. chairman, at the favorable circumstances, and hail the auspices under which we now meet this question; we are no longer left to erring speculations, to uncertain reasoning, but have under our eyes the sure and infallible test of experience, of practice in war with a naval force. within a few weeks our tars have thrice grappled with the enemy, and thrice have they triumphed in combat; the success has swelled the american bosom with joy from orleans to maine--all without exception of party, vie in demonstrations of joy and in the bestowment of honors upon the victors. while such a scene is presented here, gloom and dissatisfaction prevail in the metropolis of great britain--those who have been so long accustomed to conquer, receive the capture of the guerriere with as much astonishment as they would behold a suspension of the laws of nature. a strange event to britons! how often, sir, has it been echoed and re-echoed within these walls, that it would be in vain to attempt any thing with a navy against great britain, unless we could bring ship to ship and man to man--could equal our enemy on the ocean. how much mistaken have gentlemen been; how vain is human reason! the earliest stage of the first war under the government has yielded a clear, full, and incontestable refutation of the argument. while the american arms have suffered disgrace upon disgrace on what was deemed the natural and proper theatre for the display of our power; while by land all is gloomy and comfortless, and the heart sickens under the past, our little navy, a handful of men, has nobly sustained us upon the ocean, and banished that despondency which our disasters by land must have otherwise produced. if, sir, under such auspices, such overwhelming evidence of the efficiency of a navy, this question is to be put by, i shall despair of a navy; we may rank with algiers in a force of frigates, but shall do nothing worthy of a community of eight millions of souls, placed by heaven in a situation most favorable to commerce and naval power. the objections, sir, to a navy are not a little amusing. do you move the question in peace, it is objected, that commerce flourishes and you want not protection; at another time it is said not to be worth the expense of a navy, and lastly a navy will draw america into the european vortex and involve us in a war. now that we are in war, a new book of logic is opened, and it is objected, that you have not time to build a navy, the war will be over before ships can be finished. it is thus, sir, that the arguments against a navy are made to answer and refute themselves; nay, more, the argument in war is a satire and reproach to the objection in peace. "there is not now time to build a navy," reproaches us for not having passed the requisite laws at the last session. i have always considered the great policy of a navy settled by the constitution; need i spend time to show, that no great specific power was delegated to the general government unless it was deemed necessary; not necessary for a dormitory, but to be executed for the general protection and welfare. this was the polar star--the test and criterion that governed in the delegation of powers by the states--powers not necessary to be exercised for the general good were retained by the several states. what greatly strengthens the argument is, the power to provide a navy is not only given to the general government, but taken away or denied to the several states. in adopting the constitution, this question was considered at rest, and a navy was deemed the necessary consequence of this power; in the virginia convention, where great talent and ingenuity was displayed in the debate, the point was so considered, and the objection rested on that ground; the consequence of adoption was supposed to be an unequal strengthening of the commercial parts of the union. so deeply impressed was president washington with the importance of a navy, and so true to his duty and just claims of commerce for protection, that he could not consent to quit his high station in the public councils without placing on record his sentiments for the good of his country--this he did in his speech to the fourth congress (second session) in language that well attests his wisdom and paternal care and solicitude for his country. he recommended and urged the policy of a navy in the strongest terms, and i will not believe that the parting lesson of that great and good man will be lost to his country--there is certainly too much respect for his memory to disregard his solemn advice and counsel on any subject. in this policy mr. jefferson also concurred at a period most auspicious to fair inquiry and dispassionate judgment; it was before the tempest of party arose, to obscure the great luminary of truth and blacken the political horizon. mr. widgery.--mr. chairman, it will be recollected that i was last session of congress opposed to the building of seventy-fours, until we had got more frigates. i have been rather opposed to them in the committee of naval affairs, not because i was opposed to an augmentation of the navy, but because i thought it more to the advantage of the country to build frigates and sloops of war at present; and if, hereafter, when we have sailors plenty to man the large ships with, it should be thought best to have larger ships, it may be very well to build them; but, at present, our resources are inadequate to build the seventy-fours and the ten frigates, and say eight or ten sloops of war, which are absolutely necessary for the protection of our seacoast, in order to keep off the british gun-brigs or privateers. the ships-of-the-line will not answer this purpose, when they are at sea; they must keep deep water; they cannot, with safety, follow in under the land those small vessels which annoy our coasters, and capture them all along shore. within a few days, i have accounts of a small privateer, of eight guns, having captured twenty or thirty sail of coasting vessels. sir, it is a sight to see a public armed ship of the united states anywhere on our shore to the eastward of boston--a seacoast of miles--when the enemy can take every thing that passes out to sea, and a country in which there are the best of ship-harbors, where they might cruise with safety, always having a harbor handy to run into. i cannot feel willing to build seventy-fours, to the exclusion of the smaller ships, of which we are so much in want at this time. if you had the money in your chest, and all ready for the building four seventy-fours, and all the timber in the yard--which you have not--still i should have doubts on my mind as to the propriety of those heavy ships. say, if you please, that you had those ships built, could you send them to sea? i presume not, if at war with england, because she would always blockade your harbors wherever they were; and if you sent them out, perhaps you would never have to man them again; not because our ships in single combat are not a match for hers, but, because they have more ships than they know what to do with; they would always outnumber you at sea, and they would be able to come up with and capture your four ships. but, for what purpose are you to send them out? certainly, not to take merchantmen. they are not calculated for that purpose, unless you had more than four of them. in case you had a number sufficient to intercept their east india fleet, which, generally, are under strong convoys of heavy ships, then it might be an object to send them to sea. if you are to keep them in port, for the purpose of harbor defence, you must always keep them manned; it will be too late to man them after the enemy comes in sight. and there is, in my mind, another difficulty: in the manning these heavy ships, you will have to impress men to go on board of them, or raise the wages up to what is given in a merchant ship; because the sailors will not be willing to go on board large ships, when they have no chance for prize money. on the other hand, they will be very willing to enter on board cruising ships, such as frigates or sloops of war, in hopes of taking prizes; and you have not, at present, a sufficient number of sailors to man what smaller vessels we want. if you build frigates and sloops of war, they can be furnished without your advancing the money; the merchants will build them, and loan them to the government. the frigates and smaller vessels can be put afloat in six months from the time they are agreed for; and your ships-of-the-line will not be finished in less than two years; and if they do not cost per cent. more than they are calculated at, i will dare pay all i am worth towards them for nothing. i am willing to go for almost any number of frigates, because i know you can have them built without advancing a dollar until they are ready for service, and because i am convinced they are most for our interest. popular opinion, i know, has great weight at times; let us not be carried off on the wings of enthusiasm; we are at present at very great expense, and we ought to act prudently with our finances, or they will soon become low. at the same time, i cannot agree with the gentleman from kentucky, who says he is opposed to any augmentation of the navy, and asks if you are willing to tax the planters for the building a navy, and the protection of the merchant? sir, will not the same reasoning apply against the maritime towns being taxed to support the army of , men in the west? gentlemen say, stay on shore, and you will be safe. sir, may we not, in return, say to the gentlemen who are settling the cheap lands of the interior, keep among us; go not into the indian country; we cannot be taxed to defend you. this reasoning will apply with as much force against the interior as theirs does against the atlantic towns. sir, we are all one people, and, in order to remain so, we must be willing to defend at all points. mr. bassett spoke several times in the course of the debate. the following is the substance of the whole of his remarks: he said, on rising, that it was with no feigned diffidence that he addressed the house. i shall, said he, have credit with every one in the assertion that i am most anxious that the proposition i have made should succeed. must i not, then, deplore the feebleness of voice, the want of force, of manner, and promptness of mind and thought, which limit me? but i shall feel compensated if the house will, in heart, join me in regretting that a cause worthy of the first of advocates has fallen into such puny hands. for the _cause_, then, will they hear me, and for their country's good will they improve each hint i may let fall, by their better judgment. it is true, sir, we have little experience--i cannot boast of naval knowledge in our land--but, yet, we are not quite deficient. let it be remembered, that it is on the first principles that we are to decide; that we are to mark the outlines only, which depend much on general reasoning, and, in doing which, we may resort to the experience of others. i will follow (though with unequal step) the course taken by my predecessor last year, and, on the question to fill this blank, bring the whole subject before the committee. it will be assumed, as then proved, that protection is due to every national right, which cannot be estimated by pecuniary calculation, but must be tested by national ability only to defend and protect them. to the mode of effecting so desirable an object, i shall confine myself. the report has assumed it as a principle almost of instinct to oppose like to like, and so says the history of man, whom we find ever availing himself of the improvements of his assailant for self-defence. hence has the art of war become to all nations the most interesting science, and no citizen is more estimable than he who can direct the national force with most efficiency. the importance of a naval force is amply attested on record. i will first, sir, point you to the conflicts between the rival republics of rome and carthage, and ask you to remember the agency that their vessels had in them. had the romans confined themselves to the land, never had carthage been destroyed. the history of europe, from venice to great britain, is too familiar to all who hear me, to require reference to particulars. it is sufficient for me to call attention to the effect of naval power, as it passed from nation to nation. what was the power of venice and genoa when they led the van of naval power? how quickly did the sceptre of portugal rise, as she assumed a station on the ocean! how sink as she lost her naval preponderance! how did a navy once support the united provinces! and how is it now the salvation of great britain! it is then a fact, that a naval armament gives effect to the power of a nation, as do the musket and bayonet, the cannon and the mortar. and how, sir, is it attempted to rebut this fact? by showing a physical disability in the country to avail itself of this force? no. for then would they be rebutted by the extent of our coasts, by the materials for ship-building, (so ample,) and the known habits and genius of our countrymen, as each day is evincing. and here, sir, i wish i could follow up the beautiful figure of my friend, who, on a former occasion, showed you our continent, extending to either ocean, with the finger of munificence pointing to the goodly heritage. we have then these facts: that a navy is a powerful means of national operation; that our local situation is fitted for its use; and that we have the necessary materials. to which it is objected that your infant navy must be opposed to one which has reached the full manhood of power on the ocean. i admit it. but shall we therefore abandon the ocean, yield our birthright, our goodly heritage, without a struggle? or, shall we not rather, deducing argument from example, like the gallant captain hull, avoid their fleets and capture their single ships. i am aware that habit impels some to be fearful on this subject, and the experience of the past will not convince them. with diffidence, therefore, do i refer to the efficiency of twelve ships-of-the-line and twenty frigates, as demonstrated last session. let me ask of gentlemen who thus think, who thus feel, to examine the extent of their argument. does it not go, not only to the abandonment of the ocean, but to the seacoast also? i shall trust to former statements for the magnitude of this sacrifice, with the observation, that abandoning the ocean involves the loss of one million four hundred thousand tons of shipping; and that in giving up the coasts, you lose a valuable portion of your soil, and some of your fairest cities. i will not dwell on the magnitude of this sacrifice, because i cannot believe that americans will abandon any right which there is a prospect to maintain. i cannot, i admit, answer as conclusively the objection, that much time will be passed before this force can be procured; yet, i believe, that a mind which relied on that objection, might be satisfied that late preparation is better than none. nor could a mind, so circumstanced, fail to see, that, while making preparation, you come every day nearer your object; in neglecting it, you are every day further from it, and you are, in neglecting it, blending ultimate loss with temporary sacrifice. mr. chairman, is it for an infant nation, or a popular government, to be deterred by the want of preparation? what is it that the youth has not to prepare, or when was it that a popular government taxed itself with previous preparation? but why this argument of despair? what were your preparations for the revolutionary war, and when made? after an army was in your country. yet were they then made and effectually made. by the bravery of our fathers our soil was secured; on us it rests to secure our rights on the water, common to every independent nation, and as clearly ours as they are essential to our interests. what is this argument of infancy? had not the navy of great britain a beginning? yes. there was a time when britain had no ship. what then? she was invaded, and more, she was conquered. at this day, her wooden walls, as they are proverbially called, are her defence and protection. is it admitted that the british fleet secures her from attack? if so, would not a fleet secure us from attack also? but we have it not. is it not then our duty, as guardians of the public interest, to provide this powerful, this necessary means of defence? but some are alarmed at the cost. permit me to recur to the calculation of the last year. and first, as to the information derived from british experience, whose example may be taken as precedent on maritime subjects; at least they make a powerful argument, where they are rejected as full proof. in recurring to british estimates, it certainly was unexpected to the american eye to see the same sum charged for a soldier as for a sailor, viz: ---- dollars per month; and as unexpected, on investigating the british expenditures for a series of years, to find that the appropriations for the navy are found less than those for the army, as will be seen by reference to the _annual register_. in corroboration of this is our own history, as appears from the calculations made by my predecessor, of which i will avail myself. is it not then demonstrated by foreign and domestic experience, that a naval force is the cheapest the nation can resort to for defence and protection? is it not also proved, that a force believed to be competent, might be obtained at a sum greatly within the means of the government--say twelve millions of dollars--or a fourth less than the ordinary amount of revenue for a year in good times? test this subject in another way. the cost of your navy, twelve millions; give up the ocean, and you lose, for one item, one million four hundred thousand tons of shipping, which at fifty dollars the ton, would be worth five times the sum. yet that would unquestionably be the least item in the account, because that would be but one loss, while that of your coasting, and other trade, would swell into a great annual amount, and be as great a sacrifice of convenience as profit. nor is such a conclusion the less to be deprecated, because it is difficult to foresee all the evils which must result from the abandonment of one essential right of an independent nation. i know it may be said by those who view this subject differently from me, that they do not mean to abandon the ocean. it is, then, for them to show the difference between not abandoning a right, and not defending it; for i cannot believe that any gentleman will contend that the national defence shall be left to privateers. they have most justly been considered an aid to the national arm, but heaven forbid that they should be relied on as principal. a private arm, with power to shield the nation, is what i could not contemplate without terror. i cannot believe it necessary to pursue this argument. to return then: the force adequate to the defence of our seas would cost twelve millions. i will not say that this whole expense ought to be incurred in one year; indeed, it ought to be remarked, that of the twenty frigates, nearly eight are ready for service. let the principle be yielded, and we can then enter on the calculation as to the portion which may be procured each year. the decision, too, would, in my judgment, be the strongest inducement to the enemy to make peace when they saw that you were progressing to a force which they could not meet. if, indeed, the force which has been named was not altogether adequate to the object of defending your own waters, you would find, having that force, that you could make any small addition that was requisite without difficulty. in reference to the opinions of others, in some measure, did the select committee determine on the number of ships, and their force, to be procured this year. thus if the first blanks are filled with four seventy-six gun ships, they cost, per estimate, $ , , and will require an appropriation of $ , , . if the other blank be filled with six thirty-eight gun ships, which, by estimate, cost $ , , the requisite appropriation for them will be $ , , . for the sloops of war, the last blank i have calculated at $ , , which would require an appropriation of $ , ; which, with the necessary appropriation for the four frigates ordered to be rebuilt last year, viz: the philadelphia, new york, general greene, and boston, will amount to $ , , . this would give you four seventy-sixes and eighteen frigates, mostly of the best size. compare the efficiency of that force with the interest of three millions and a half, the cost, and you cannot but be gratified with the result. i say, mr. chairman, the interest; because, though it was not in the province of the select committee to look out the ways and means, yet was it so interested as to their object, that they could but ask how was the money to be had; and they were satisfied that three millions and a half could, with facility, be loaned for navy purposes. i state this with no view to limit the ways and means, but only that until the subject is given them to provide for, the house might not be embarrassed with the difficulty of money. with the humble hope that the views of the committee have been shown to be at least most reasonable, if not most correct, i beg leave to say a few words as to the different kinds of vessels proposed. i will not ask that the clerk should read that excellent letter from captain stewart, because i presume every gentleman who wishes information has read it more than once. from that and the other documents, the committee thought themselves warranted in recommending four seventy-six gun ships. in addition to the sufficient reasons offered there, that a large ship, with fewer men and a less cost, will be more efficient than small ones, by the table a it is most conclusively evinced, that a seventy-six, at one round, throws on the enemy four pounds fourteen ounces of ball for each man; whereas, the gunboat throws only ten ounces. i only give the extremes, that the argument may be the more readily taken. here, too, we have the fact, that six hundred and fifty men are sufficient for a seventy-six, while four hundred and twenty are required for a frigate. the annual expense is, for the large ship, $ , ; for the frigate, $ , . while in action, the larger ship is equal or superior to three frigates. to support this calculation by figures, we have the opinions of captains hull, stewart, and morris; and mr. hamilton says, that all the officers in service concur in the opinion; and i am told that such is the real history of naval conflicts. mr. hamilton mentions one, and captain stewart mentions another, of four french frigates attacking a british seventy-four, of which one was sunk, two taken, and the other run off. it is cause of some exultation to me, that our naval men, where the opportunity is afforded them, give the example to prove our theory. as i am told, orders were sent from washington in september to captain chauncey, then at new york, who made his preparation, took his workmen with him to the lakes, and some days since we had the account that he had built and launched, before november was out, a frigate of twenty-six guns. the gallant chauncey enables me to present an argument that would, could i do it justice, i am sure, have much weight. will any gentleman regret that this twenty-six gun ship has been built, though the mastery of the lakes has been acquired without it? neither shall we regret the building of the seventy-sixes, though peace, which god send, should come before they are launched. there is yet one other objection too important to be passed over, though it was on a former occasion so ably canvassed. it is the difficulty of getting seamen. that difficulty exists, i do admit. yet is not the difficulty insurmountable. here again i avail myself of the illustrations of my friend from south carolina. the gentleman has again referred to the difficulty of manning your ships, and deems impressment indispensable. sir, i admit the weakness of our nation, and lament it too. yet i cannot believe that the hard hand of tyranny is essential to their well-being; and i regret that in an assembly of freemen, that this, the most if not the only detestable example england has set us as to a navy, should be so much relied on. look to the fact, that in five years forty-two thousand seamen deserted from the british navy. look to the fact, that their prisoners require to be committed to return to their own country. it is with no little pride that i call the attention of the gentleman and the committee to our gallery. did a british gallery ever exhibit such a spectacle? no, a seaman there is a slave, and seldom puts his foot on shore but under the guard of an officer. let us therefore be cautious in admitting that though great britain has been most successful, that she owes it to the hard, to the iron hand of impressment. it would not be difficult to find in her naval institutions other principles to which the mind would delight to attribute her superiority, rather than that from which we cannot but turn in disgust. mr. stow said he should not consider the motion made by the honorable gentleman from pennsylvania (mr. seybert) as going to defeat the main object of the bill, which was a liberal increase of the navy, because he understood his intention to be to move a larger number of frigates if the clause for seventy-fours should be stricken out. the question then he should consider as simply whether it was best at present to build any ships-of-the-line, or to confine our exertions to frigates only? he said his own opinions had leaned pretty strongly to the latter side till, as a member of the navy committee, he had been led to a more careful examination of the subject; and he confessed that that examination had fully convinced him of the utility, and he might say necessity, of building some line-of-battle ships. the propriety of building them, as well as a proportion of lighter ships, grew out of the different objects to which they were to be applied. there could be no doubt of the superior advantages of frigates and sloops of war when employed in cruising against our enemy's commerce, but whenever the object is to repel a powerful force, ships-of-the-line ought to be resorted to. they form batteries infinitely more effective in proportion to their expense than frigates. to illustrate this--the cost of a seventy-four is less than one-third more than that of a forty-four gun frigate, yet the force is as three to one, or according to the lowest estimate i have heard, as two to one. this is easily explained when we consider that to make a seventy-four is little more than adding another deck to a large frigate. it would then appear evident, that unless we resorted to this kind of force, we should fight our enemy on the most unequal terms. she could at any time lay a few heavy ships at the mouths of our harbors and in our narrow waters, and thus effectually destroy not only our foreign trade, but what was of infinitely more importance, she could destroy the whole of our coasting trade. further, said mr. s., knowing that we have no powerful ships, she can easily protect by convoy all her valuable fleets; but if we had four ships-of-the-line she would be driven to the enormous expense of convoying every fleet of merchantmen sailing to any part of america by five or six seventy-fours, or they would be exposed to capture by our fleet. but, said mr. s., it is objected that they would be blockaded. this objection was equally against frigates; but he was perfectly willing to put it upon that ground, that great britain would attempt to blockade them. what then would be the case? she must employ six blockading ships, supported at an enormous expense, at such a distance; and as had been fully shown by the gentleman from south carolina, (mr. cheves,) last year, six more ships at least must be occupied in preparing and sailing to replace the first six--thus employing twelve ships to four. and after all, the attempt to confine our ships would frequently be rendered abortive by storms. again, it has been objected that we had no harbors south of montauk point, in which, if pursued, our ships could take shelter. if by this was meant barely that we had no harbor properly fortified, he admitted it was true; and it was also equally true as applied to our heavy frigates; but if it was meant that there was no harbor in which ships could enter that was capable of being properly defended, it was entirely erroneous. for many such there were, and where sufficient works could be erected in a few months. mr. s. said a strong reason for building seventy-fours, and to which he particularly requested the attention of the committee, grew out of the state of our preparation. we have timber for four seventy-fours, seasoned and ready for use, which could not be applied to frigates, without great loss. and this explained the fact, that we could build seventy-fours sooner than frigates, unless the timber thus provided should be cut up, which, after years of deliberate preparation for seventy-fours, would appear like children's play. he said in a case of this kind, he thought great respect was due to experience. that many years ago all the ships of war belonging to the nations of europe were small, but that, without one exception, they had resorted to a certain proportion of heavy ships. from this circumstance, as well as from the uniform opinion of our own officers, he inferred that these were the most conclusive reasons in favor of them. the question was then taken on the motion to strike out the seventy-fours, and negatived. the committee rose and had leave to sit again. friday, december . _increase of the navy._ the house again resolved itself into a committee of the whole on the bill to increase the navy of the united states. mr. cutts then moved to strike out the seventy-fours, with a view to increase the number of frigates to be built to ten, and to add a number of sloops of war. mr. c. spoke at considerable length in support of his motion, and in favor of frigates and sloops of war in preference to seventy-four gun ships. the question was then taken on striking out the provision respecting seventy-fours, and was carried--for the amendment , against it . mr. cutts moved an amendment authorizing the building of ten ships of war, of forty-four guns, and ten sloops of war.--motion lost by a great majority. monday, december . on motion of mr. bassett, the petitions of j. a. chevallie, attorney of amelie eugene de beaumarchais, presented on the th of december, , and d of april, , together with all the documents concerning the said claim, were referred to the committee of claims. _encouragement to privateering by public armed and private armed vessels._ mr. bassett, from the committee on the naval establishment, presented a bill relating to captures; which was read twice, and committed to a committee of the whole on wednesday next. the bill is as follows: a bill relating to captures. _be it enacted, &c._, that where any ship or vessel in the service of the united states shall have captured, or may hereafter capture, a ship or vessel belonging to an enemy, of equal or inferior force, and it shall become necessary to destroy such prize to prevent her falling into the hands of the enemy, or for the security of such ship or vessel so in the service of the united states, the secretary of the navy is hereby required to issue his commission to one or more fit person or persons, who, on the best evidence that can be procured, shall proceed to estimate the value of such ship or vessel, prize as aforesaid, in the port into which the capturing vessel shall first enter, and make return on oath of said estimate or valuation to the secretary of the navy. sec. . _and be it further enacted_, that the secretary of the navy shall thereon proceed to apportion the sum, which shall be equal to one-half the said valuation or estimate, as prize money, among the officers and crew making such capture, and cause the same to be paid to them accordingly. sec. . _and be it further enacted_, that each commissioned officer shall receive six dollars per day for each day he shall be employed in making the aforesaid estimate: _provided_, his compensation shall in no case exceed ---- dollars. sec. . _and be it further enacted_, that every captain or commanding officer of any vessel in the service of the united states immediately on his coming into port, after having captured a ship or vessel of equal or superior force, shall make report thereof to the secretary of the navy, describing particularly the size and equipment of the ship or vessel so destroyed, and the nature and extent of the damage done her in the action, as also the causes and inducements for destroying his prize, which report, in part, shall be received as evidence by the commissioners aforesaid. sec. . _and be it further enacted_, that the secretary of the navy shall cause the account of the money so by him ordered to be paid, to be settled at the end of one year, and all the unclaimed dividends he shall cause to be paid over to the navy hospital fund. mr. bassett, from the same committee, also presented a bill regulating pensions to persons on board private armed ships; which was read twice, and committed to a committee of the whole on thursday next. the bill is as follows: a bill regulating pensions to persons on board private armed ships. _be it enacted, &c._, that the two and a half per centum reserved in the hands of the collectors and consuls by the act of june, eighteen hundred and twelve, entitled "an act concerning letters of marque, prizes, and prize goods," shall be paid into the treasury, under the like regulations provided for other public money, and shall constitute a fund for the purposes of this act, and such other purposes as congress may direct, for the aid and comfort of the seamen of the united states. sec. . _and be it further enacted_, that the secretary of the navy be authorized and required to place on the pension list, under the like regulations and restrictions as are used in relation to the navy of the united states, any officer or seamen who, on board of any private armed ship or vessel, bearing a commission or letter of marque, shall have been, in the line of duty, wounded or otherwise disabled; if an officer, allowing him one-half his monthly pay for the greater disability, and so in proportion; and if a seaman, or acting as a marine, the sum of six dollars per month for the greater disability, and so in proportion; which several pensions shall be paid, by direction of the secretary of the navy, out of the fund above provided. sec. . _and be it further enacted_, that the commanding officer of every vessel having a commission, or letters of marque and reprisal, shall enter in his journal the name and rank of any officer, and the name of any seamen who, during his cruise, shall, in the line of his duty, have been wounded or disabled, describing the manner and extent, as far as practicable, of such wound or disability. sec. . _and be it further enacted_, that every collector shall transmit quarterly to the secretary of the navy a transcript of such journals as may have been reported to him, so far as they give a list of the officers and crew, and the description of wounds and disabilities, the better to enable the secretary to decide on claims for pensions. _duties on privateer prize goods._ mr. cheves, from the committee of ways and means, to whom was referred the bill from the senate directing the secretary of the treasury to remit certain fines, penalties, and forfeitures, reported the same with amendments, the principal one of which is to strike out the words "and the dependencies thereof," so as to exclude from the operation of the bill, the cases of goods brought in from canada, &c.--the bill was referred to a committee of the whole. mr. c. also introduced the following report: the committee of ways and means, to whom were referred so much of the petition of the owners and agents of sundry private armed vessels fitted out of the port of new york, as prays the reduction of the duties on prize goods, and the petitions of sundry owners of private armed vessels fitted out of the port of boston, and of sundry owners of like vessels fitted out of the ports of norfolk and portsmouth, virginia, also praying a reduction of the duties on prize goods, report: that a letter from john ferguson and john l. laurence, agents for the petitioners from new york, and a letter from the secretary of the treasury, both addressed to the chairman of the committee, and which accompany this report, contain all the facts and views which will probably be found material in the examination and consideration of this subject; and that this committee, having maturely considered them, are of opinion, that a reduction of the duties on prize goods, without embracing, at the same time, all importations made in the prosecution of the ordinary commerce of the country, cannot, consistently with sound policy and rational legislation, be made, and that a general reduction would diminish a revenue, where it does not distress the consumer, and would not produce any material increase of gain to the captors. the committee, therefore, recommend the following resolve: _resolved_, that it is inexpedient to grant the prayer of the petitioners. _documents referred to in the above report._ washington, _nov. , _. sir: we take the liberty of enclosing to you, for the inspection of the committee of ways and means, sundry papers connected with the application by the owners of privateers in new york, for a reduction of duties on prize goods. they are as follow: no. , exhibits the proceeds of the schooner venus and cargo, captured by the privateer teazer. no. , is a statement of the cost of the privateers general armstrong and governor tompkins. no. , contains extracts of letters from several privateer agents. the committee of ways and means are (including the accompanying documents) in possession of three statements of prize sales, where the property was, in each case, of a different character from the others. the cargo of the new liverpool consisted (contrary to our impressions when before the committee) altogether of wine, amounting to , gallons, whereon the duty was cents per gallon, which consumed more than one-half of the proceeds of vessel and cargo, and, connected with the other charges, left the owners of the privateer about one-sixth of the captured property. the industry was laden with bbls. salmon; and the benevolent intentions of the privateersmen to restore to an indigent owner the amount of her loss, terminated, in consequence of the high duties and charges, in an inability to present her with more than a paltry sum, scarcely worth her acceptance. the venus had a cargo of rum, sugar, fruit, and preserves, which produced $ , , and was charged with duties amounting to $ , . the vessel, being well calculated for a privateer, was bought in by the captors for that business. but, experience teaching them that the profits of private naval warfare are by no means equivalent to the hazard, they have abandoned that intention, and are now offering the venus for sale in the public newspapers, but cannot find a purchaser. we would respectfully suggest to the committee of ways and means that great anxiety exists in new york, that congress may give the question of a reduction of prize duties a speedy decision; which, if favorable, will revive the spirit and zeal, now expiring, with which privateering was undertaken at the commencement of the war; and, if unfavorable, will prevent those who have purchased vessels for warlike enterprises, in which they cannot now dispose of any interest, from incurring losses accumulated under fruitless expectations. we have taken the liberty of reminding the committee that no naval force of any efficiency can be supported by the government but at an expense far greater than the amount of the duties of which we pray the remission; and that there is probably no other species of naval armament half so destructive as privateers to the commerce of an enemy. the employment of a great number of experienced masters of vessels and seamen necessarily engaged in them, whose services could not probably be obtained in any other way, and whose skill and intrepidity produce so much honor to the country, forms another important consideration. to these may be added, that, in no other way, can the mercantile interest be so effectually united in the support and prosecution of the war, as by offering inducements to the investments of its otherwise unemployed capital in such enterprises. we are, sir, with great respect, your obedient servants, john ferguson, john l. lawrence. hon. l. cheves, _chairman, &c._ tuesday, december . _imprisonment of american seamen._ the speaker laid before the house the following message from the president of the united states: _to the house of representatives of the united states_: i transmit to the house of representatives a report of the secretary of state, complying with their resolution of the th instant. james madison. december , . department of state, _dec. , _. the secretary of state, to whom was referred the resolution of the house of representatives of the th instant, requesting information touching the conduct of british officers towards persons taken in american armed ships, has the honor to lay before the president the accompanying papers marked a, b, c, from which it appears, that certain persons, some of whom are said to be native, and others naturalized citizens of the united states, being parts of the crews of the united states armed vessels the "nautilus" and the "wasp," and of the private armed vessel the "sarah ann," have been seized, under the pretext of their being british subjects, by british officers, for the avowed purpose, as is understood, of having them brought to trial for their lives, and that others, being part of the crew of the nautilus, have been taken into the british service. the secretary of state begs leave also to lay before the president the papers marked d and e. from these it will be seen, that whilst the british naval officers arrest as criminals such persons taken on board american armed vessels as they may consider british subjects, they claim a right to retain on board british ships of war american citizens who may have married in england, or been impressed from on board british merchant vessels; and that they consider an impressed american, when he is discharged from one of their ships, as a prisoner of war. all which is respectfully submitted. james monroe. (a.) _sir john borlase warren to mr. monroe._ halifax, _september , _. sir: having received information that a most unauthorized act has been committed by commodore rodgers, in forcibly seizing twelve british seamen, prisoners of war, late belonging to the guerriere, and taking them out of the english cartel brig endeavor on her passage down the harbor of boston, after they had been regularly embarked on board of her for an exchange, agreeable to the arrangements settled between the two countries, and that the said british seamen so seized, are now detained on board the united states frigate president as hostages; i feel myself called upon to request, sir, your most serious attention to a measure so fraught with mischief and inconvenience, destructive of the good faith of a flag of truce and the sacred protection of a cartel. i should be extremely sorry that the imprudent act of any officer should involve consequences so particularly severe as the present instance must naturally produce, if repeated; and although it is very much my wish, during the continuance of the differences existing between the two countries, to adopt every measure that might render the effect of war less rigorous, yet, in another point of view, the conviction of the duty i owe my country would, in the event of such grievances as i have already stated being continued, not admit of any hesitation in retaliatory decisions; but as i am strongly persuaded of the high liberality of your sentiments, and that the act complained of has originated entirely with the officer who committed it, and that it will be as censurable in your consideration as it deserves, i rely upon your taking such steps as will prevent a recurrence of conduct so extremely reprehensible in every shape. i have the honor to be, with the highest consideration, sir, your most obedient and most faithful humble servant, john borlase warren, _admiral of the blue, commander-in-chief, &c._ james monroe, esq., _secretary of state_. _mr. monroe to sir john borlase warren._ department of state, _oct. , _. sir: i have had the honor to receive your letter of the th september, complaining that commodore rodgers, commanding a squadron of the united states navy at the port of boston, had taken twelve british seamen, lately belonging to his britannic majesty's ship the guerriere, from a cartel in the harbor of boston, and that he had detained them on board the president, a frigate of the united states, as hostages. i am instructed to inform you, that inquiry shall be made into the circumstances attending, and the causes which produced the act, of which you complain; and that such measures will be taken, on a knowledge of them, as may comport with the rights of both nations, and may be proper in the case to which they relate. i beg you, sir, to be assured that it is the sincere desire of the president to see (and to promote, so far as depends on the united states) that the war which exists between the two countries be conducted with the utmost regard to humanity. i have the honor to be, &c., james monroe. sir john b. warren, _admiral of the blue_, _commander-in-chief, &c._ (b.) washington, _dec. , _. sir: i have the honor to annex a list of twelve of the crew of the late united states sloop of war wasp, detained by captain john beresford, of the british ship poictiers, under the pretence of their being british subjects. i have the honor to be, respectfully, sir, your obedient servant, george s. wise, _purser_. hon. paul hamilton, _sec'ry navy_. [here follow several other documents, not deemed of material importance, except the following:] (c.) _extract of a letter from major general pinckney to the secretary of war, dated_ headquarters, charleston, _november , _. "information having been given upon oath to lieutenant grandison, who at present commands in the naval department here, that six american seamen, who had been taken prisoners on board of our privateers, had been sent to jamaica to be tried as british subjects for treason, he called upon the marshal to retain double that number of british seamen as hostages. the marshal, in consequence of instructions from the department of state, asked my advice on the subject, and i have given my opinion that they ought to be detained until the pleasure of the president shall be known. the testimony of captain moon is herewith. i hope, sir, you will have the goodness to have this business put in the proper train to have the president's pleasure on this subject communicated to the marshal." the message and documents were, on motion, referred to the committee on foreign relations. wednesday, december . another member, to wit, from louisiana, thomas bolling robertson, appeared, produced his credentials, was qualified, and took his seat. _increase of the navy._ the bill from the senate to increase the navy of the united states, was read a third time; and the question, being stated, "shall the bill pass?" mr. mckee spoke at considerable length against its passage, and concluded by moving to postpone it to monday, with a view to obtaining further information on the subject of the materials, &c. the motion to postpone was supported by mr. alston and mr. seybert, and opposed by mr. milnor, mr. bassett, and mr. widgery. the votes were for postponement , against it . so the motion was lost. the question recurring on the passage of the bill, mr. potter said, as he represented a commercial state, and his constituents at present were very anxious for a navy, he felt it his duty to assign his reasons for the vote he was about to give. he said, when he saw his political friends, with only one exception, in favor of the bill under consideration, and the anxious solicitude of the gentleman on the other side of the house for its fate, he felt himself much embarrassed; but while he was by his feelings at times almost impelled to vote in its favor, his judgment compelled him to vote against it. mr. p. said his objections to a navy were that it would cost more than ever it would be worth to the nation; that we could not build, man, and support the ships contemplated, in addition to our present establishment, without resorting to the same means for their support as other maritime nations had done; that it must be supported by impression or oppression; we must either impress our citizens to man our navy, and compel them to serve against their wills for almost nothing, or oppress the nation with taxes not to be endured, to enable the government to give such wages as would induce our seamen to enter voluntarily into our service. he said it had been observed by the friends of the bill, and particularly by his friend from pennsylvania, (mr. milnor,) that the navy was at this time very popular with all parties, in this house and the nation; that they had done honor to themselves and to their country, while our army had, in almost every instance, been defeated and disgraced. mr. p. said we had been very unfortunate in the selection of some of our commanding officers, who had, as it would seem, been appointed more because they wanted office, than because they were qualified for it; some of them were too old, and others too young; but he believed we had as good officers in our army as we had in the navy, and whenever the time should arrive that would afford them a fair opportunity, that they would equally distinguish themselves. mr. p. said there was a kind of popular delusion at this time about a navy, that he found difficult to oppose. he said it was at least popular with all those who expected to make money out of it, and with many from the most honorable motives. but he believed, when the people, who were to pay all, and receive nothing, come to see that we had spent for them the last year upwards of twenty millions of dollars, and that notwithstanding all the moneys we had received, by double duties, and otherwise, that we had increased the national debt, in that year, ten millions six hundred thousand dollars, and that we want, for the expenses of the present year, agreeably to the report of the secretary of the treasury, $ , , , exclusive of the expense of the contemplated increase of our navy, and for losses and war contingencies--that when they should put those sums together, and apportion them to the several states, agreeable to the constitution, and see that but few individuals, and not many states, would have personal property sufficient to pay their proportions--that this delusion as to those who have eventually all this money to pay would at least vanish. it was likewise said that the spirit of the nation demanded this increase of our navy. he remembered very well that it was so said on a former occasion, and that the finger of heaven pointed to war, but it was very soon found that the finger of the people pointed to peace. it was then said, as it is now said, that we were a divided people, and it was necessary to convince foreign nations that we would support our own government. the then executive was addressed from all parts of the united states, with pledges of life, fortune, and sacred honor, in support of what he had done, or should do. this was intended to correct the error abroad as to our being a divided people, and for no other purpose. its object was entirely misunderstood by the then president. he thought they were uneasy and wanted something to steady them. an army was raised, and taxes laid for their benefit;--a navy was provided which did honor to themselves and the nation, that protected our commerce, and caused our flag to be respected in every sea, in consequence of which our revenue continued to increase, notwithstanding all the depredations committed on our commerce, and the nation appeared to be prosperous and happy; but when the people were called upon to test the sincerity of their pledges and promises, by the payment of a tax of only two millions of dollars, they said they had been entirely misunderstood, that those pledges were intended to have an influence abroad, and not for the purpose of trouble at home, and that they would not pay taxes to support a navy or army; and, the first opportunity they had, they changed the administration. if they would not then pay two millions of dollars, to support that administration, can they be expected to pay nearly fifty millions for the support of this, for the same purposes? mr. p. said this administration, during the last session of congress, was addressed from all parts of the union, and from many of the states in their legislative capacities, promising to support them with their lives, fortunes, and sacred honors, in common form. this perhaps was to have its influence abroad. the administration, believing them sincere, have been induced to declare war, and are left to carry it on without money. they find that those pledges and promises cost but little, and are worth nothing; and the consequence will be, that when the people are called upon to pay those enormous expenses, the present administration will share the same fate from them as the former did. the gentleman from massachusetts (mr. cutts) said the expense of this navy would swamp the present, as it had done a former administration; that, mr. p. said, was a business of their own, it was no concern of his; but if with their means they could not manage the affairs of the nation, with their present experience, having seen the rock on which a former administration split, they would richly deserve it; his only object was to keep his constituents from being mired down with debt and taxes. many gentlemen support this bill upon the principle that this settles the question; that we are to become a great naval power, and to have a permanent naval establishment; to this mr. p. said he objected for the reasons he had assigned; he said he had found mankind much the same: give them power, and they would not only use, but abuse it--give them money, and they will spend it, and want to borrow; and, he said, if an administration like the present, without money, without an army, or navy, would plunge this country so unprepared into a war, and continue it for the present existing cause, and extend their views of conquest to the floridas, the canadas, quebec, halifax, and nova scotia, whenever they should have money, an army, and ships; the next thing they would want colonies, as other nations had done, and that bermuda and new providence would be in our way; and we must have jamaica to get good rum and sugar. and instead of this country enjoying peace, which is above all things the most desirable, we should be involved like other nations in perpetual war. mr. randolph moved to postpone the further consideration of the bill till to-morrow.--lost. so the bill was passed. _medal to commodore preble, &c._ the following message was received from the president of the united states: _to the house of representatives of the united states_: i transmit to the house of representatives a report of the secretary of the navy, complying with their resolution of the th instant. james madison. december , . the following is the report referred to in the above message: navy department, _dec. , _. sir: on the subject of the resolution of the honorable the house of representatives, of the th instant, i have the honor to state, that, in pursuance of the resolution of congress of the d march, , a gold medal, emblematical of the attacks on the town, batteries and naval force, of tripoli, by the squadron under commodore preble's command, was presented to commodore preble, in the manner stated in the enclosed letter, dated may , : that one month's pay was allowed, "exclusive of the common allowance, to all the petty officers, seamen, and marines, of the squadron, who so gloriously supported the honor of the american flag, under the orders of their gallant commander, in the several attacks:" that no sword has been presented to either of the commissioned officers or midshipmen, who distinguished themselves in the several attacks: and that it is not known to this department that there ever was made by congress a specific appropriation of $ , for the purpose of carrying into effect the resolution referred to. with respect to that part of the resolution which requests the president to cause a sword to be presented to each of the commissioned officers and midshipmen who distinguished themselves, it is presumed that the president saw what to his mind appeared difficulties of great delicacy, from the peculiar language of the resolution. by the resolution, he was requested to present swords to such only as had distinguished themselves; and all having been represented to him as having acted gloriously, he could not in justice draw with precision a line of discrimination. he felt, it is presumed, a repugnance to the making of a selection, which, by implication, would necessarily have cast an unmerited reproach upon all not therein included. a degradation of that kind might have greatly injured the service, and could not possibly have been grateful to the honorable feelings of the favored officers. i have the honor to be, with the greatest respect, your obedient servant, paul hamilton. to the president. navy department, _may , _. sir: in pursuance of the resolution of congress of the d march, , requesting the president of the united states to cause a gold medal to be struck, emblematical of the attacks on the town, batteries, and naval force, of tripoli, by the squadron under your command, and to present it to you in such manner as in his opinion would be most honorable to you, the medal, which will herewith be delivered to you by lieutenant jones, has been struck. you will receive it, sir, as a testimony of your country's estimation of the important and honorable services rendered by you; and you will be pleased to accept an assurance of the great pleasure i have in the honor of presenting it to you. i have the honor to be, with great respect, sir, your most obedient servant, r. smith. to com. edward preble. from the records of the navy department. paul hamilton. after some conversation as to the proper course for this business to take, it was referred to a select committee, to consist of seven members, to consider and report thereon. mr. quincy, mr. randolph, mr. roane, mr. lacock, mr. troup, mr. emott, and mr. dinsmoor, were appointed the committee. monday, december . _public lands--cash system and reduction of price._ the house resolved itself into a committee of the whole on the report of the committee on the public lands, made on the second instant, respecting an extension of the time limited by law for the payment of lands purchased of the united states. the report concludes with the following resolutions, the adoption of which the committee recommend: "_resolved_, that such part of the laws for the sale of public lands as allow a credit on part of the purchase money, be repealed; and that the price at which lands shall be offered in future shall be one dollar and twenty-five cents per acre. "_resolved_, that in future sales a portion of the public lands be offered in tracts of eighty acres. "_resolved_, that two years be given in addition to the time allowed by law to the purchasers of public lands, whose time of payment shall have or may expire on or before the first day of january, , on condition that all the interest that has accrued or may accrue on or before the th day of march next, shall be paid at that day, and the interest that may become due thereafter shall be paid at the day on which the time, according to existing laws, shall expire for making payment." considerable desultory debate took place on these propositions; but the committee rose without coming to any decision thereon, and obtained leave to sit again. tuesday, december . _additional military force._ the house resolved itself into a committee of the whole on the bill "supplementary to the act for the more perfect organization of the army of the united states," and on the bill "in addition to the act for raising an additional military force." the bills having been read through, a motion was made by mr. david r. williams to fill the blanks in the first bill, for the amount of bounty, &c., and the question having been stated-- mr. d. r. williams said, the embarrassment which he felt on the present occasion, was not of an ordinary kind; he was so solemnly impressed with the importance of the subject before the committee, he was fearful its success might, in some degree, depend on his efforts to sustain it; and, feeling that the interest, perhaps the character of his country, might be committed by the decision, he was humbled that its cause could not by him be more ably supported. he felt, however, some confidence from the circumstance that the military committee was entitled to the candor of the house, because it had not presented mere fragments, to be acted on in detail, but a system on which to rest the future prosecution of the war. an explanation of its merits, from the relation in which he stood to that committee, was probably expected of him. without going back to the unavoidable and just causes of the war in which we were engaged, he would presume it was the object of all to terminate it successfully, and that there now remained no other mode than to call into the field a force adequate to the command of every honorable object. the force was abundant throughout the community, to secure, if directed with skill, spirit, and enterprise, our defence everywhere; and, by offence, to make the enemy feel it had become his interest to abstain from plunder and oppression. the character of our government had been so depressed in europe, not more by foreign than domestic misrepresentation, as much even within these walls as without them, it had become necessary to make war to place our backs against the wall and prove to european marauders there is a point beyond which we will not recede. this good the war has accomplished; but it has become more than ever necessary to prove that we will not only declare war, but can prosecute it with energy and courageous enterprise. the honor, the character of the nation, require that the british power on our borders shall be demolished in the next campaign--her american provinces once wrested from her, every attempt to recover them will be chimerical, except through negotiation. the road to peace then lies through canada. when we shall once be in possession of it, peace, honorable peace, the sole object of us all, is secured. but some gentlemen affect a sympathy for the canadians--why, say they, will you make war on them? they have not injured us. nor, sir, has the british tar injured us, although he is the instrument of plunder and impressment. it is to conquer the sovereignty of the soil, to raze the british power, to reach, by such means, her profligate and unjust ministry, that war is waged at all--the unarmed will never fall on american bayonets; it is not against the people of either canada or great britain, but against the english subject in arms, that the war is directed. by physical force then alone can we proceed. having shown the necessity of augmenting the regular forces, it was equally material to provide for filling the ranks, and for keeping them at their full complement when filled. with this view was the st section introduced. the greatest evil, incident to the recruiting service, results from the number of persons to whom the public money was necessarily distributed; in proportion to the number of persons with whom it is intrusted, will be its misapplication. to remedy this it is proposed to appoint officers to each regiment, for that particular purpose, in no way different from those already appointed, who shall be employed in recruiting for their respective regiments; these to be under the order of a major, who shall receive and be accountable for the issue of money and clothes for that service. the ranks filled, the presence of all the officers on the present establishment will be indispensable, as in our service the proportion of privates to the officers is greater than in any other service whatever. the new organization which was given to the army at the last session increased the number of privates in each company, without a corresponding increase of officers. if two lieutenants were necessary in a company, for the purpose of discipline and recruiting, when it consisted of only sixty-four privates, assuredly three are as much so now it is raised to ninety. the recruits, as fast as they are enlisted, may be concentrated under the eye of the major, where they may be exercised and drilled, so that when he joins the regiment, they will be qualified to enter the ranks and face the enemy. one other objection he could anticipate--perhaps those who can sneer at the disasters and misfortunes of the late campaign may object that there is no encouragement to vote additional forces, seeing those which have been already raised have been so illy employed. it becomes us all to be equally faithful to our country, whether her arms are victorious or not; it is in times of discomfiture that the patriot's resolution and virtues are most needed. it is no matter by what party names we are distinguished; this is our country--we are children of the same family, and ought to be brothers in a common cause. the misfortune which befalls one portion, should sink deep in the hearts of the others also. what misfortune so great as the loss of character? if we shall forget our impatience under disgrace, and look back on the events that have passed, with only as much candor as becomes us, this objection must vanish. under the circumstances in which it found itself, without experience, either in itself or others to guide it, administration ought not to be censured for the bad military appointments it may have made, however much it may deserve, if it shall retain men in employ, when found incapable to discharge the duties intrusted to him. he was fearless of contradiction in declaring, all our disasters sprung from a cause which no man in the nation could have anticipated. it was next to impossible any human being could have foreseen, much less provided against it. it was with pain and reluctance he felt it his duty to speak of an officer fallen and disgraced; he wished he could discover any cause for the surrender of detroit, less heinous than treachery or cowardice--between them he saw nothing to choose. justice will hereafter, if party heat denies it now, pronounce the plan of the campaign, as intrusted to general hull, easy to be accomplished and judicious in its objects. the commandant was furnished with every means necessary for success--with money, men, provisions, and munitions of war, in abundance. what better mode could have been adopted, to prevent indian hostility and intercept british supplies of the instruments of massacre? that your army had not been protected beyond the point with which communications could have been maintained, is evident from the events which followed. what was there to mar success? the commandant at maiden needed only an apology to surrender! what if the other hull had commanded? every thing would have fallen before him--great science was not necessary; courage and faithfulness would have accomplished every thing. a train of heavy artillery was not required to batter a breach for the assault; it was not necessary to fire a single gun--not a cartridge need have been expended--the bayonet alone was adequate to have taken maiden at any hour from the moment the american army crossed into canada, till its most shameful retreat. the fort was not enclosed--one entire side was open to assault. yes, sir, had the brave hull, who bore your "thunder on the mountain wave," directed the valor of the army, he would have poured the storm of victory resistless on the foe. this black deed, without a battle, was consummated in the _solicitous_ surrender of the brave corps which were hastening to his relief; these, too, were arrested and thrown back on the community, leaving the whole western frontier exposed to savage inroad. hence all our misfortunes! after this, will it be contended that the accidental appointment of an improper agent shall cause a refusal of the force necessary to drag our drowned honor up from the ocean of infamy into which it has been plunged? impossible! economy of life and treasure call for a vigorous campaign--away with lifeless expedients; miserable inertness must be banished--zeal and energy must be infused everywhere. one protracted campaign will cost twenty-fold more than the expenditure now asked for. let this be the signal for resolution--the first evidence of energetic policy. let us suppose ourselves leading the forlorn hope, and assume the spirit and vigor characteristic of such an enterprise--the army will feel it--the people will feel it--disaster and disgrace will then disappear. it is to save the public treasure--the people's blood; it is for the reclamation of character, i ask for high bounties and premiums; and, so asking, i hope not to be denied. the question was then taken on filling the several blanks in the first bill, and carried. mr. h. clay congratulated the committee and the nation on the system which had been presented to their consideration, and the prospect of prosecuting the next campaign with a vigor which should insure a successful result. he rose at this time, however, to propose an amendment to the bill, the object of which was to repeal so much of former laws as authorizes a bounty of land to the recruits. he was satisfied that, as respected the nation, this was a waste of its capital, without producing a single provident result. as to the recruiting service, he was convinced, from what he had heard, that it added scarcely any inducement to the recruit--that it had not added a hundred men to the army. he confessed he had been much mistaken as to the effect it had been expected to produce, &c. mr. c. added many remarks going to support his positions, stating, among other things, that the land would in the end get into the hands of speculators, and the individuals for whose benefit it was intended would derive no advantage from it. now that it was proposed to increase the bounty in money, he thought it would be a proper occasion to repeal so much of the existing laws as allowed a bounty in land, on which the recruits set generally as much value as if it were located in the moon. mr. c. concluded by making a motion to that effect. mr. troup and mr. bibb stated objections to the motion, as going to withdraw what was certainly, in many parts of the country, an inducement to enlistments, at a time when every means ought to be called into action for the purpose of filling the ranks of the army. mr. clay's motion was then agreed to by the committee. the other bill before the committee, going to authorize the raising an additional force of twenty thousand men for one year, was then taken up, and the blanks therein severally filled. mr. pitkin, adverting to the provision of the bill which gives the appointment of officers below the rank of colonel to the president alone, inquired the reasons why, contrary to the general usage, the senate were precluded from concurrence in these appointments? mr. williams stated that the motive of the committee in proposing this provision was, to avoid the delay incidental to the minor appointments, which could be much more easily and effectually made by the colonels of the regiments, respectively, who would be personally acquainted with, and responsible for, the good conduct of those who were appointed. mr. tallmadge moved to strike out the section of the bill which directs the manner in which the company officers shall be appointed. he said he had hoped that the committee would have risen and given at least one day for consideration; that they would have maturely weighed and deliberately made up their minds on this question. it is true that, in , there was a power given to the president of the united states to appoint all officers for ten thousand men under the rank of field officers; but the appointment of all field officers was retained to the president and senate. mr. t. said he knew how perfectly easy it was to go on step by step, and yield power till it all passed out of our hands. the argument now is a plea of urgency. what was the case in ? not the same as now. congress had been making preparations on the contingency of war. the language of the law which has been referred to is to this effect: in case of war being declared by any foreign power, or the country actually invaded, then the president shall have the power of appointing these officers. such a provision was very different from that now proposed. mr. t. was also opposed to this section in the bill, because he would not pass a bill going, as far as in the power of this house, to take away the power of appointment from the senate. it was a disrespect he would not offer to them, to call upon them to ratify a law depriving themselves of a power they have uniformly possessed and exercised. the question was taken on mr. tallmadge's motion to strike out the section, and lost. the committee rose and reported the two bills and the house adjourned. wednesday, december . _additional military force._ the question was then taken on engrossment of the bill for a third reading, and passed in the affirmative--yeas , nays , as follows: yeas.--willis alston, jr., stevenson archer, daniel avery, ezekiel bacon, david bard, william barnett, burwell bassett, william w. bibb, william blackledge, robert brown, william a. burwell, william butler, john c. calhoun, francis carr, langdon cheves, matthew clay, james cochran, john clopton, william crawford, richard cutts, roger davis, joseph desha, samuel dinsmoor, elias earle, william findlay, james fisk, meshack franklin, charles goldsborough, isaiah l. green, felix grundy, bolling hall, obed hall, john a. harper, aylett hawes, john m. hyneman, joseph kent, william r. king, abner lacock, peter little, aaron lyle, nathaniel macon, thomas moore, william mccoy, samuel mckee, samuel l. mitchill, jeremiah morrow, anthony new, thomas newton, stephen ormsby, israel pickens, james pleasants, jr., benjamin pond, william m. richardson, thomas b. robertson, john rhea, john roane, jonathan roberts, ebenezer sage, thos. sammons, john sevier, adam seybert, george smith, john taliaferro, uri tracy, george m. troup, charles turner, jr., robert whitehill, david r. williams, william widgery, and richard wynn. nays.--john baker, abijah bigelow, harmanus bleecker, adam boyd, james breckenridge, elijah brigham, epaphroditus champion, martin chittenden, john davenport, jr., william ely, james emott, thos. r. gold, edwin gray, jacob hufty, richard jackson, jr., lyman law, joseph, lewis, jr., george c. maxwell, archibald mcbryde, jonathan o. mosely, thos. newbold, joseph pearson, timothy pitkin, jr., elisha r. potter, josiah quincy, john randolph, william reed, henry m. ridgely, william rodman, daniel sheffey, richard stanford, lewis b. sturges, samuel taggart, benjamin tallmadge, laban wheaton, leonard white, and thomas wilson. so the bill was ordered to be engrossed for a third reading. the house then proceeded to the consideration of the report of the committee of the whole on the other bill reported by the committee, entitled "a bill in addition to the act to raise an additional military force, and for other purposes"--the first section of which is as follows: _be it enacted, &c._, that, in addition to the present military establishment of the united states, there be raised twenty regiments of infantry, to be enlisted for the term of one year, unless sooner discharged. [the remainder of the bill is mere detail; the bounty on enlistment sixteen dollars.] mr. gold said this was a bill involving questions of great importance, as well in principle as in its details. there was one feature especially of the bill which required mature consideration; he alluded to the limited period of service of the proposed additional force. there was no pressing emergency to hurry the bill; and he, therefore, moved to postpone the further consideration of it to monday, which was negatived. _death of mr. smilie._ so soon as this decision was declared-- mr. findlay rose.--it is my melancholy duty, said he, to announce to this house that my venerable colleague and old friend and associate, john smilie, is no more. he departed this life at two o'clock this afternoon. a committee was then appointed to superintend the funeral of the deceased, consisting of messrs. findlay, lyle, brown, roberts, davis, lacock, and hyneman. a resolution was unanimously adopted, requesting each member of the house, in testimony of their respect to the memory of john smilie, to wear crape on the left arm for one month. and, on motion of mr. fitch, the house then adjourned. thursday, december . on motion of mr. findlay, _resolved, unanimously_, that the members of this house will attend the funeral of the late john smilie, this day, at two o'clock. _resolved_, that a message be sent to the senate to notify them of the death of john smilie, late a member of this house, and that his funeral will take place at two o'clock, this day. and then the house adjourned. saturday, january , . _additional military force._ the house resumed the consideration of the report of the committee of the whole on the bill in addition to the act for raising an additional military force. the amendments made by the house having been agreed to, the question was stated, shall the bill be engrossed, and read a third time? mr. mosely said that, in stating concisely some of the reasons which would induce him to vote against the present bill, he should not attempt to enter into a consideration of the justice or expediency of the war, nor the policy of continuing it. war is declared, and it appears to be the determination of those who have the control of our public concerns to prosecute it with the utmost vigor; yes, sir, with a vigor that, within twelve months from the enlistment of the twenty thousand men to be raised by this bill, we are told must bring it to a successful termination. really, mr. speaker, when i listened to the confident assurance of the honorable chairman of the military committee, that with these twenty thousand men, in addition to the troops already raised, and voted to be raised, we should in a single campaign be able to conquer canada, nova scotia, and new brunswick, and that the object of all these conquests was to procure an honorable peace, i almost felt myself persuaded as a peace man to join the honorable gentleman in his project of fighting for peace one year, with such a certainty of obtaining it at the expiration of that period; but unfortunately i could not but recollect the fate of similar assurances made on former occasions. when we were about declaring war, i very well remember that we were told with equal confidence by gentlemen anxious to engage in it (and who would listen to no arguments, even for delay, against the measure) that we had only to declare war, and canada would, in the course of a few months, at most, be ours; that the militia alone, with the aid of a very few regulars, would be competent to the conquest of the whole country, except the fortress of quebec; and that that must very soon fall of course. an honorable gentleman from vermont (mr. fisk) informed us that the people of those provinces would almost conquer themselves; that they were at least pre-disposed to be conquered--to use his own expression, that they were "panting" to participate in our liberty. experience has now proved the fallacy of these predictions. gentlemen must now be convinced that canada is not to be conquered quite so easily as they had imagined--that it is not to be subdued with a few thousand militia, regulars, or volunteers, though aided by proclamations. i mention proclamations, because they seem to be considered as an indispensable auxiliary on all great emergencies. what can be done by proclamation, i will readily concede we are competent to do. no nation, i believe, ever arrived at greater perfection in the art of proclamation-making than we have done; and if history is faithful to record them, we shall in this particular at least bear the palm from all the world. sir, it can afford pleasure to no man, who feels as he ought for the honor and interest of his country, to dwell unnecessarily upon the disasters and disgrace which have everywhere attended our military operations from the commencement of the war to the present time. i mean upon land; for to our little navy too much praise cannot be given. our gallant seamen have not only afforded to their countrymen examples of valor worthy of imitation, but they have also taught us a lesson of wisdom, by which i am happy to find we have manifested a disposition to profit. but, sir, while gentlemen must feel mortified at the miserable termination of all our boasted military exploits thus far, and might wish to draw a veil over the disgraceful scenes which have taken place, it cannot be done; it would be unwise to attempt it. we ought rather to look at the causes which have produced our misfortunes, and pursue a course in future which may not expose us to similar evils. mr. gold said the annals of this government, the last six months, commencing with the declaration of war, would be found the most interesting, the most deplorable. in that period, we have seen a war declared, precipitately and prematurely; for, notwithstanding all the arguments urged on that occasion, with so much zeal and eloquence, time has dissipated all; the illusion has vanished; your army, so confidently expected, did not, under the magic of that declaration, spring into existence; the condition of your enlistments would not, i apprehend, at this hour, justify the declaration of war. we have seen, sir, that war conducted in a manner well to comport with the spirit in which it was declared; disaster upon disaster in rapid succession have followed; the tone and heart of the country broken; universal disgust at the past, and deep concern and anxiety for the future, prevail everywhere. and what, mr. speaker, is now proposed for the future--what is to retrieve our affairs--on what are our hopes to rest? an army of twelve-months' men! a broken reed! an army and term of service, which well nigh lost the country in the revolutionary war; an army which in every step and stage of that war received the uniform and reiterated censure and condemnation of washington, and every intelligent officer of that period; an army that stands recorded by every historian of that war with deep reproach and reprobation. such is the foundation of our future hopes; shutting our eyes upon the lessons of experience, we live but to repeat former errors and renew our sufferings. shall we never learn, that a soldier is not the creature of an hour; that he must be seasoned to the hardships of war; that to remove your recruit from his fireside, from his plentiful board, and all the comforts with which he is surrounded, to the theatre of service, there to sleep on the ground in tents, with two or three articles of subsistence only, is to give him up a victim to disease, to consign him to the grave? this precise result is presented to the mind by the melancholy review of the last campaign; disease and death have walked abroad in our armies on the frontier; they have been swept to the grave as by the besom of destruction. it has not stopped with your army; the frontier inhabitants, infected by the diseases of the camp, fly from the deadly theatre as from a destroying angel! shall we never learn the difference between our situation, and that of nations who have a competent military establishment, sufficient at all times for both offensive and defensive operations? the slender military establishment of the united states, whilst it consults economy, and favors the genius of the government, forbids a hasty resort to war, especially extra-territorial and offensive war; time for preparation, after the measure is resolved on, is indispensable; and a disregard of our situation in this respect cannot fail to induce defeat and disaster--to produce such a campaign as has just now closed. but, mr. speaker, wherefore change the term of enlistment, from five years, or during the war, to one year? the sole avowed object of the war by land was the conquest of the canadas. are you at this hour nearer your object than on the day you declared war, or has that object, with a steady and sure pace, constantly receded from you as you have advanced in the war? is canada so far conquered that you can now reduce the term of enlistment? it is impossible to shut our eyes on the past; while all is disgust and despondency with our own citizens--sick of the past, and concerned for the future; while every post brings to the cabinet fearful and alarming changes in the sentiments of the people under this ill-fated war; your enemy, the canadians, take courage, their wavering sentiments have become resolved, and union in defence of their firesides, the land that gives them bread, is spreading and cementing all in the patriotic vow. there was a time, sir, when you had friends in the upper province; there were many who wished well to your arms, and would have greeted your approach, but that ill-fated policy which precipitated every thing, which in zeal for the end overlooked the means, has blasted all our hopes from that quarter. the canadian, while he knows your power, distrusts your wisdom and your capacity to conduct the war; he dares not commit himself, his all, to such auspices. hence, sir, difficulties thicken on every side, and at least three times the force is now necessary to effect the conquest, which would have been required at the commencement of the war. have we made an impression on the prince regent and his ministry? are they now more disposed to succumb and accept your terms than before the war? how stand the people of the british empire? instead of their coercing the government into our terms, which we fondly anticipated, the late election to parliament shows them disposed to go hand in hand with the government in resisting our claims and inflicting on us all the evils of war. "maritime rights" are echoed and re-echoed with applause throughout the empire. such, sir, are the bitter fruits of your policy, and to what farther point the same hand shall conduct the destinies of the country, remains to be seen. i seek not to aggravate the misconduct of the war, nor to commend our enemies, but only wish, sir, that we may see things as they are, our actual situation, and thus look danger in the face. do you persevere in the conquest of canada? pass not the barrier with an army of less than forty-five or fifty thousand men: if you do, in my apprehension, the defeats and disasters of the past campaign will be visited upon you; another army will be made to pass under the yoke, and at the end of the year, you will find yourself still further removed from your object. the tug of war is now placed fairly before us, we cannot advance without meeting it. such, mr. speaker, are the grounds on which i object to this twelve-months' army; it is not adapted to the professed object of the war, the conquest of canada. is there, sir, any other object in contemplation of the government; any other land of leeks and onions, which heaven has given us, or to which our destinies lead? is the south of easier access than the north, and is the circle of hostility to be extended to that quarter? we profess a pacific policy; moderation and justice are our boast; let us beware how we commit to the hazard this high and enviable character; how we yield, on specious grounds, to the mad and destructive policy which we reprobate in others; a policy which has in all periods overwhelmed nations with calamity, and swelled the tide of human misery. i fear there are points in our neutral course, in our relative conduct towards great britain and france which will not bear examination. you proclaimed the berlin and milan decrees revoked, and put upon great britain the threatened alternative of non-intercourse. was the fact so? you took a promise for the fact; you proclaimed the fact, while france herself, the author of the deed and party to be benefited, denies and disowns it as done at the time. here was a fatal error, a departure from the straight line of justice; and when our error in this was palpable to all the world, we gave no explanation, no excuse, but persevered in a measure which led to war. it is this course, sir, this departure from even-handed neutrality between great britain and france, that has lost you the support of your own citizens to a great and alarming extent, and at this moment sustains the british ministry in the hearts of englishmen. it is this belief of our government's leaning to france, that has carried that ministry so triumphantly through the late elections to parliament. if any thing could add to the gloom and sicken the mind under the prospect before us, it is the inauspicious conjunction of events. america and france both making war at the same time on great britain; we making the enemy of france our enemy, and this at the ill-fated moment when the all-grasping emperor of that country is rolling a baleful cloud, charged with destruction, north upon the russian empire; upon a power always just to america; upon our truest and best friend in the european theatre. against such a friend, at such a period, we have beheld the march of the corsican through rivers of blood; his footsteps are traced over the ashes of the proudest cities, and he sits himself down, at length, at moscow, like marius over the ruins of carthage. the question was then taken on mr. clay's motion, and negatived. mr. macon moved to strike out one, and insert five years as the term of enlistment. he regretted as much as any one the disasters which had befallen the country; and there was but one way to obviate their effects, and that was by rising superior to them, as a part of the nation had already done--he meant the western country, where a patriotism had been exhibited equal to that which might have distinguished rome in its best days. their zeal was equal to their bravery--and the only drawback on their enterprise was the difficulty of finding something to eat in the wilderness. we must rise after reverses. what, sir, said mr. m., would have become of rome, had she desponded when hannibal defeated her armies? she rose upon it and became the mistress of the world. what would have been the situation of our cause in the revolution, if, after the british successes in jersey, we had desponded? but the men of pennsylvania and new jersey rose on it, and victory and triumph followed. our object now ought to be to recover the ground we have lost, and meet the enemy with troops that will insure success. we are told, sir, this war has united england to a man. sir, i never expected aid from our enemies. let us follow so good an example, and unite to a man; let us remember the old continental maxim--"united we stand, divided we fall." if we were as united in defence of our rights, as england is in her usurpations, this war would not last a single campaign--and i hope in this respect we shall, at least, learn wisdom from an enemy. the calculations about one or two campaigns, however, in present circumstances, are visionary. we have engaged an enemy not in the habit of yielding very soon. but, if we were to unite, the question would soon be settled. the cause and object of this war has been more concisely stated by one of those actively engaged in it, than by any other person--i mean captain porter's motto--"free trade and sailors' rights;" no man could have given a better definition of it. it appears to me that one part of this continent ought to be zealous for the rights of seamen--another part for a free export trade; and, if we were, as we ought to be, united, the war would be carried on with energy and with success. i agree with the gentleman from new jersey, that this thing is not to be done by paper men. my opinion is, that the best thing we can do, is to raise men for five years. let the legislature of the country do its duty. if the thirty-five thousand men, now authorized, be not enough, let us get as many as will be adequate to the end we propose. gentlemen have thought proper to review former transactions. i would be willing to pass them over. i believe almost every measure adopted by the general government would have had its destined effect if adhered to. you have always got the better of the argument; you have better proclamations; but what avails all this? britain has impressed your seamen, and given you blows for good words. you have been heretofore told your paper measures were worth nothing: now that it is proposed to give blow for blow, what is said? that you are departing from the pacific system, which the same persons before reprobated, and to which they have become friendly only after every attempt at pacification has failed. sir, we are now engaged in war, and we must succeed or we must yield the rights of sailors and free trade. does any man doubt that the war is justly undertaken? is there a man in the nation--i care not of what political sect, many as there are--who believes that the war is not undertaken on just grounds--that we had not borne with their indignities till we could have borne them no longer? after plundering your property and impressing your seamen on the ocean, their agents have been sent into this nation to sow divisions among us, who ought to be but one family. what crime has been left undone? what injury have we not suffered? could one be added to the catalogue? it seems to me not. no man loves peace more than i do, and if it had not been for great britain sending her agents to our firesides, i do not know but i should have voted against the war. it seemed to me like an attempt on a man's daughter. not content with vexing and harassing you whenever you went from home, they came here to put strife into your family. you have been told that the prince regent and his ministers are firm. sir, we never calculated on their receding, but on the energies and force of the nation to obtain redress, and if we had been united, we should have equalled our most sanguine expectations. let us follow their example, and determine to maintain our national rights, as they do to maintain their usurpations on them. mr. m. clay seconded the motion of mr. macon to strike out "one year" and insert "five," as the term of enlistment. he said an army ought to be seasoned before it was carried into the field. we have heard much said, observed he, about sickness in your army; much of the sickness, some time ago, at new orleans, and much lately of the sickness at plattsburg. have you ever heard of an army on earth that was carried into the field before it had been seasoned in the camp? it must, to be good for any thing, be first disciplined in camp, and become inured to the mode of living and the fare of soldiers. it will take some time to season men to the change in their mode of living which must take place on going into camp. it will take a year to prepare them for the field. without discipline they will be useless. your seamen are brave and successful because they know what they go to sea for. take a landsman on board a ship, and what sort of a sailor will he make? such as the french have on board their vessels. we take no man into the navy but who understands his business and the purpose for which he goes there, and we see the effects of it. i do not wish it understood, sir, if i vote against the bill, that i am opposed to the war. no, sir. it is a righteous war, into which i go with hand and heart. we may differ about the mode, but that is all. i speak from experience more than from any thing else. let us raise a sufficient army to serve during the war, be it long or short. it is absurd to suppose that we shall not succeed in our enterprise against the enemy's provinces. we have the canadas as much under our command as she has the ocean; and the way to conquer her on the ocean is to drive her from the land. i am not for stopping at quebec or anywhere else; but i would take the whole continent from them, and ask them no favors. her fleets cannot then rendezvous at halifax as now, and having no place of resort in the north, cannot infest our coast as they have lately done. it is as easy to conquer them on the land as their whole navy could conquer ours on the ocean. as to coping with them at sea, we cannot do it. we can annoy them, but not meet them on the open sea. i would meet them and hurt them, however, where we can. we must take the continent from them. i wish never to see a peace till we do. god has given us the power and the means; we are to blame if we do not use them. if we get the continent, she must allow us the freedom of the sea. i hope, sir, the amendment of my friend from north carolina, going to make this army more efficient, may be adopted. mr. pleasants said, before the question was taken, he wished to submit a few of the reasons why he was opposed to the amendment. the question before the house, if he correctly understood it, was not, what were the best materials of which to make an army; whether men for the war, for five years, or for twelve months; but the question was, what is the kind of force, and for what length of time can you raise an army to take the field at the earliest period? i hesitate not a moment, mr. p. said, to declare, that if it were within the compass of our ability to raise an army for five years by voting it, i would authorize it. not a moment should i doubt on the subject. the history of the world is strongly in favor of such an army. but we perfectly know, from the progress of the recruiting service, that we have already authorized as many men of that description as we shall probably be able to raise. this force is wanted to render the next campaign efficient. i consider the bill merely as a substitute for the volunteer system heretofore pursued. of what materials will this army be composed? of young men ready to volunteer their services for one year in the form of regulars; and in ninety-nine cases out of a hundred, men will enlist in this corps who would not enlist for five years, or for the war. i am sanguine in the opinion, that this measure, if now adopted, will do away the defects of the present volunteer system, and i am fully of opinion, that under it, a force may be drawn into the field ready to act efficiently in the next campaign. i am not one of those, sir, notwithstanding the accounts we have heard of our disasters, who despair of the republic. if we turn to history we shall find that we have never engaged in any war in which we have come out better in the first campaign than we have in this. look at the war undertaken under the auspices of gen. washington against the indians. what was the history of it? we all recollect the campaign under harmar, and its bloody scenes. the campaign under st. clair cannot be forgotten. we then suffered defeat upon defeat, disaster upon disaster, in the course of the war, which was not terminated till the treaty of greenville, in , though it may be said to have virtually terminated by the defeat of the indians by general wayne, which occurred previous to the treaty. if this country be willing to go into the contest heart and hand, we shall in a very short time demonstrate to the enemy all we want to convince her of, that it is in reality her interest to be at peace with this country. i hope, sir, the motion to amend the bill will not prevail. i am perfectly convinced that the bill as it is will enable us to call a valuable force into service, and i am sanguine in the hope, that, with its aid, together with the other force we shall have, we may clear the continent of the enemy's dominion in one campaign, though i do not undertake to predict that we shall. the question was then taken on mr. macon's proposed amendment, and lost. the question recurred on the passage of the bill to a third reading. mr. pearson said, not unfrequently it happens, mr. speaker, both in private and political life, that men of the clearest perceptions and most correct motives, experience much difficulty and embarrassment in determining on the course best to be pursued, or the application of means best calculated to produce a given object. the object most devoutly wished for by myself, and, no doubt, equally desired by every honest and honorable man in this community, is, that my country should once more be restored to the enjoyment of peace. under the pressure of existing circumstances, involved in a war with a powerful nation--a war now prosecuted for a doubtful, or, at least, strongly controverted question of national right--a war, the prosecution of which, so far as relates to our military operations, has everywhere, and on all occasions, been attended with disgrace, defeat, or disaster; under such circumstances, i confess, sir, i am not free from embarrassment in determining on the course demanded by genuine patriotism, or best calculated to restore the blessings of peace to the country. i rejoiced to hear the honorable chairman of the military committee (mr. d. r. williams) declare, the other day, that his object was also peace. it must be a source of gratification to the country to learn that some of the strongest advocates for the declaration of war begin now to think and talk of peace. the honorable gentleman, however, urges the passage of the bill under consideration, (which authorizes the enlistment of twenty thousand additional regular troops for one year; and provides for the appointment of proportionally an unusual number of officers, with all the accompanying paraphernalia of an army,) as the means best calculated to produce the end in view. did i believe, sir, that the passage of this bill, or (what is more difficult and less likely to happen) the actual enlistment of the proposed additional force would secure to us our object, i would not only consent to give this force, but ten times the number, if it were by force alone to be obtained; but when i reflect on the special and sole cause for which it is avowed the war is now prosecuted; when i consider the relative strength, situation, and disposable force, by sea and land, of the two nations, and especially when my recollection is assailed (for we cannot, nor ought we to close our senses against such damning facts) with the heretofore scanty enlistments; the confusion and insubordination which has pervaded many parts of your army; the extraordinary expense already incurred, and the uniform disasters which have marked all your military operations, i cannot bring my mind to the belief that the force now proposed can produce any desirable effect. mr. speaker: as much as i was opposed to the declaration of war, and as much as subsequent events have convinced me of the correctness of the vote i gave on that momentous question, it is not my purpose on this occasion to question the policy of that unfortunate act. my mind is bent on peace; to that object my efforts are directed. the impression is strongly fixed on my understanding, that this war can be terminated with honor and advantage to this nation, without the further effusion of human blood. if so, surely no christian will deny but justice, humanity, and sound policy demand that nothing should remain undone, on our part, to stop this career of carnage and bloodshed. i have said, sir, that it is my impression that this war can be terminated with honor and advantage to this nation, without a further appeal to arms. in stating this opinion, i do not mean to be understood as identifying the honor of the nation with the honor of those by whom the war was declared; or, in other words, i do not admit that the national honor rests solely in the hands of those who may happen to be in the administration, or who may happen to constitute a majority in congress. no, sir, this is an elective government--the power and ultimate responsibility rest with the people; they cannot be dishonored unless they pertinaciously approve of unwise or wicked measures, and continue to support the authors of such measures. it is, therefore, not with me a primary consideration, in the suggestions i am about to make, how far the honor or reputation, for political wisdom, of any individuals may be affected by the adoption of the plan for peace which has occurred to my mind. i do not know that any honorable gentleman will be affected by it, should it be adopted. i hope he will not; to me it is perfectly indifferent who are in power, so that the affairs of the nation are well conducted. mr. speaker: whatever may have been the original causes for the declaration of this war, we are now taught to believe that the question in contest is reduced to a single point. the british orders in council were repealed on the st of june, three days after our declaration of war; and, of course, without a knowledge of that event, the blockade of may, , had long ceased to exist. the sole avowed cause, therefore, remaining, and for which the war is now carried on, is the practice of impressment from on board our merchant vessels. this subject has for many years engaged the attention of both nations; it has been a fruitful theme of execration and declamation for almost every editor and orator of the age. great as our cause of complaint may have been, (and i am not disposed to palliate it,) it must be admitted by all who understand the nature and true bearing of the question, that it had been subjected to much exaggeration. permit me, sir, to remark, that notwithstanding the importance, the difficulty, and delicacy which have been justly attributed to this subject, and the unwillingness at all times manifested on the part of the british government to abandon or derogate from the _abstract_ right of impressing her own seamen from on board neutral merchant vessels, it is very far from being certain that she has not been willing to enter into such arrangement with this government, as would place the question of impressment on a basis both safe and honorable to this nation. by a reference to the correspondence of messrs. monroe and pinkney with the british commissioners, which preceded the treaty concluded by those gentlemen in the year , but which was unfortunately rejected by the then president, it is evident that the interest of impressment was, in the opinion of those gentlemen, placed on a footing well calculated to secure our own seamen from the abuse against which we had complained, and against which it was our duty to protect them. this opinion was not only expressed in forcible and decisive language at the time of entering into the arrangement, but repeated by mr. monroe more than a year after, in a formal letter to the secretary of state. the language of that gentleman, now your secretary of state, is peculiarly emphatic, and must be within the recollection of every gentleman in this house. without troubling the house with the reading of the documents referred to, it is sufficient for me to state, that your present secretary of state did, in a letter addressed to mr. madison, dated february , , declare "that he always believed, and did still believe, that the ground on which the interest of impressment was placed by the paper of the british commissioners of the th of november, , and the explanations which accompanied it, was both honorable and advantageous to the united states." thus, sir, as we have conclusive evidence of a disposition on the part of the british government, at one period at least, to advance considerable length towards an adjustment of this long-contested question; and as we have no evidence that different principles and claims are now asserted from those then advanced; i think it fair to conclude, that it is still in our power to put an end to this controversy with safety to our seamen, and advantage to the nation. instead, then, of passing this bill, and spending the blood and treasure of our countrymen in the prosecution of this war, i conceive it our duty to make an effort for the sanction of our just rights, and the restoration of peace, without a further appeal to force. it is my decided opinion that such an effort, if fairly and liberally made by this house, and the executive branch of the government, would not fail in producing the desired effect. the peculiar nature of the question, which now constitutes the sole object for continuing the war; the intimation given by the executive in the correspondence with the british government, since the declaration of war, together with the opinions stated by mr. monroe and mr. pinkney, in their letter to the secretary of state of january , , all tend to confirm me in the belief, that it is the duty of congress to pass a law which would not only check desertions from the british service, by excluding persons of that description from employ in our service, but also deprive the british government of the apology alleged for impressing american seamen, by excluding british subjects from the commercial and public service of the united states. having alluded to the letter of mr. monroe and mr. pinkney of the d of january, , i will take the liberty of reading from it a short extract. after stating the opinion they had formerly expressed, that although the british government did not feel itself at liberty to relinquish formally, by treaty, its claim to search our merchant vessels for british seamen, its practice would nevertheless be essentially, if not completely, abandoned, they observe: "that opinion has since been confirmed by frequent conferences on the subject with the british commissioners, who have repeatedly assured us that, in their judgment, we were made as secure against the exercise of their pretension by the policy which their government had adopted, in regard to that very delicate and important question, as we could have been made by treaty. it is proper to observe, however, that the good effect of this disposition, and its continuance, may depend, in a great measure, on the means which may be taken hereafter by the congress to check desertions from the british service. if the treaty is ratified, and a perfect good understanding is produced by it between the two countries, it will be easy for their governments, by friendly communications, to state to each other what they respectively desire, and in that mode to arrange the business as satisfactorily as it could be done by treaty." thus, sir, had the treaty of been ratified and a good understanding been produced between the two countries, congress were warned, even in that event, that it was their duty to lend their aid in rendering effectual and perpetual any arrangement which might be made on this subject of impressment. as to the late communications from the executive department, made to the british government, since the declaration of war, it is not my intention at this time to enter into a particular examination of their merit or demerit. i will barely remark, that to me they present a novelty in the history of war and diplomacy. propositions, alleged to be of a pacific nature, made in six days after the declaration of war! such a procedure (much as i desire peace and much as i was opposed to the war) is to my mind, to say the least, extremely extraordinary, and its policy incomprehensible. it is the more so from the circumstance of a british minister being on the spot at the moment of declaring the war and keeping up a continued correspondence with the secretary of state to the last moment of the existence of peace. under such circumstances i should conceive each nation ought to have known the _ultimatum_ of the other and not waited for the form of a declaration of war, to resume the negotiation and give a new shape to their proposition. i confess that i am not surprised at the result of this war negotiation--every thing was demanded to be yielded by our enemy, for which the war was declared, even as a preliminary in the first instance to an armistice, and in the second instance as preliminary to a negotiation. the equivalent offered on our part was of a nature which it was not within the province of the executive to confirm, and, of course, depended on what congress might or might not do on the subject. in addition to this, our agent in london, through whom those propositions were made, did not possess regular and competent powers, and was considered by the british government as incompetent to act with them on such a subject on equal terms of obligation and responsibility. whatever, therefore, may be my opinion in relation to those late propositions, and however illy calculated they may have been to produce any desirable result, i am far from considering them unworthy the particular attention of this house. i allude particularly to the equivalent proposed as an inducement for the discontinuance of the practice of impressment. here, for the first time in the whole history of the long-protracted discussion on this subject, it is intimated that something effectual will be done on our part to prevent the cause of the abuse of which we complain--a promise is given, in the event of obtaining the concessions demanded, that a law would be passed by congress to prohibit the employment of british seamen in the public or commercial service of the united states. this, then, is what i ask you now to do--pass a law effectually to exclude all british subjects from the public and private maritime service of the united states; let the law be well guarded against the possibility of violation or evasion; and let us be determined rigidly to enforce it; place this law in the hands of your executive; let him immediately appoint one or more honest, able, independent commissioners; men who neither have nor expect an office; men in whom the nation, without regard to party, would be willing to confide; give them ample powers to form a treaty or arrange the sole question which is now the pivot on which this war depends. do all this; do it faithfully, and i venture to predict you will obtain a peace, and secure your just rights more speedily, more effectually, and more satisfactorily to the people of this country, than by all the military operations in the compass of your power. monday, january . edward hempstead, returned to serve as the delegate in this house from the territory of missouri, appeared, produced his credentials, was qualified, and took his seat. _additional military force._ the house resumed the consideration of the bill for raising for one year an additional military force of twenty thousand men. the question was stated on the engrossment of the bill for a third reading. mr. brigham.--mr. speaker, the bill under consideration, if passed into a law, will deeply affect my constituents and the public in general. it provides for prosecuting this war on a more extensive scale--it is a kind of second declaration of war. the objects of conquest are multiplied; the field of operation is enlarged; the army must be increased with the addition of , regular troops; and enlistments encouraged by additional bounty and wages. sir, this is the system of arrangement to prosecute the scheme of foreign invasion. one error frequently prepares the way for another; we are now unhappily involved in the calamities of war, and the question is, how we shall prosecute and support it. mr. b. said he had been uniformly, and in principle, opposed to this war, and of course opposed to all the measures connected with it; that, in his opinion, this war was both politically and morally wrong; that it was declared without suitable preparation, without necessity, without an army, without adequate resources, and without unanimity; it has been prosecuted without success; we have also gained nothing but loss, defeat, and disgrace; the people are alarmed at the loss of their peace, distressed with the fruits of the war, and have serious apprehensions of what may be the future measures of congress on this subject. sir, continued mr. b., this war is of an offensive character; it is a war of conquest, totally inconsistent with the spirit and genius of our constitution, and, if prosecuted in the present divided state of the country, i fear it may be fatal to our most valuable institutions. republics, sir, ought never to be engaged in a foreign, offensive war; they are calculated only for defensive war. sir, there is something unaccountable, that the disposition to prosecute this war should increase, as the causes of the war decrease, and the means and ability to carry it on lessen. the war which we now have on hand is predicated principally on the orders in council. the impressment of seamen, during the last session of congress, was considered of minor importance and as a proper subject of negotiation between the two nations, and was so considered in the days of general washington, in those of mr. jefferson, and why not now by mr. madison? sir, the orders in council which interfered with our neutral rights are revoked. the president, in his message at the commencement of this session, declared the fact, and the war now rests solely on the subject of impressment. i do not believe that the prosecuting of this war will have a tendency to bring about an amicable and satisfactory adjustment on this subject, and at the end of the war, if it ever ceases, this question of impressment must be settled by treaty. sir, at this time, and under these circumstances, we are called on to augment our standing army to the number of , regular troops, to prosecute the war with vigor, and, as some say, for glory. sir, if this system of warfare is carried into effect, we shall unavoidably create an annual expense of forty millions of dollars; and where is your money to defray this expense? why, you must take it from the pockets of our constituents, and from those who are opposed to this war; and if you fail of obtaining the necessary loans, you must stop payment; the nation will become bankrupt, and future generations will be loaded with an enormous debt. sir, can this be for the honor and interest of the american people; can it be for the satisfaction of our constituents; are they in love with this war? are they prepared to barter away their property and their peace for the hazards and fatigue of a foreign war, which promises nothing but poverty and distress? it is impossible. sir, it is said that we are now about to make one sublime military effort, which shall do honor to this nation; that with these troops we are to take, not only the canadas, but halifax and nova scotia, and, for aught i know, east florida, follow up the tippecanoe expedition, and exterminate the indians. mr. b. said that he never had known the incipient cause nor by what authority general harrison made his incursion into the wilderness, beyond where the united states had extinguished the indian titles, and destroyed the prophet's town, but said that he hoped the time would come when he should know the merits of that enterprise. mr. b. said if the friends of this bill and of the war could accomplish their darling object, subdue and take possession of the canadas, and all the other british provinces in north america, in his opinion it would be a great public misfortune--fatal to the civil liberties of the country, and change the character of our government. sir, said mr. b., with these impressions i deprecate the taking of the canadas, or the other british provinces, as i do the loss of liberty and the ruin of this country. this war cannot be perpetuated and prosecuted without violating the laws of humanity and justice, the laws of religion and morality--and these laws are to be respected as well by nations as by individuals; and we have not only reason to believe, but do believe, that the god of armies, who superintends the concerns of men, will give success to our arms, or blast our enterprise, according to its moral character. if the canadas are subdued and conquered, it must be done by force of arms; and what have the inhabitants of those provinces been guilty of, which warrant this government in putting them to the sword? sir, they are now inoffensive, and quietly pursuing their own business; they are content under their own administration; they are protected by their own government, and are not panting for the liberties of this country, as was vainly supposed the last season, nor do they ask us to relieve them from the oppression of their own government, which general hull, in his tender mercy, promised them in his pompous proclamation, on the condition that they would revolt from their rightful sovereign, and put themselves under _his_ gracious protection; nor were they terrified by the threat of extermination, if found fighting in their own defence by the side of an indian; nor were they to be seduced from their allegiance by promises which could not be performed. no, sir, nor do they ask any favor but that you cease from troubling. sir, they will not submit, and they have told you, by their actual resistance, that they will defend themselves, their councils, their firesides, their wives, and their children, their rights and their property; and they are not to be subdued but at the price of blood. and where is your authority, where is your right to go home, invade, and break into a foreign territory, and there establish a slaughter-house for the brave sons of america; there spill your blood, and expend your treasure, destroy cities, and demolish houses, plunder the inhabitants, and waste the substance of the industrious and the innocent? sir, there is no right but a napoleon right, and that right is power, and not that which reason approves. mr. b. said that the war was becoming more and more unpopular in the eastern states, especially in the state which he had the honor to represent; and they had, in their late elections, come forth and declared it in a voice and language which cannot be misunderstood. and whether there will be a majority in the next congress in favor of this war was uncertain--he hoped not. mr. ridgely said he claimed the patience of the house while he assigned the reasons that would influence him to vote against the bill now under consideration. he considered the force contemplated to be raised by the bill as unnecessary. the present military establishment of the united states consisted of various descriptions of troops; they were the regular army, the rangers, the volunteers, and the militia. the regular army was made up of the peace establishment, authorized by the acts of the th of march, , and the th of april, , containing about , men, including officers, and of the "additional military force," which was directed to be raised by the act of the th january, ; these different establishments were incorporated by an act passed on the th of june last; and the present regular army of the united states, as authorized by law, consisted of twenty-five regiments of infantry, three regiments of artillery, two of light dragoons, one of riflemen, and one of light artillery, containing in all about thirty-six thousand men, including company officers and privates; of these the president might have not exceeding fifteen thousand enlisted for eighteen months, and the residue enlisted for five years, unless sooner discharged. of the rangers, there were seven companies by the acts of th january, and st july, , and about four or five hundred men. by the act of the th february last, the president was authorized to accept of any company or companies of volunteers, either of artillery, cavalry, or infantry, who might offer their services to the number of fifty thousand men; their commissioned officers were to be appointed in the manner prescribed by law in the several states and territories to which they might respectively belong, and they could only, according to the fair construction of this act, be considered as militia, liable to be called on to do military duty at any time within two years after they were accepted by the president, and bound to continue in service one year after arriving at the place of rendezvous. by the law of the th of july last, the president was empowered to appoint and commission the officers of the volunteers who had or should offer their services, and to form them into battalions, squadrons, &c., and they were thus converted from militia into a species of regular force. by the act of the th of april last, the president was authorized to call on the several states and territories for their respective proportions of a detachment of one hundred thousand militia; and the call has been made, i believe, on every state and territory. the present military force, then, of the united states, as authorized by existing laws, consists of upward of one hundred and eighty-six thousand men, all of whom, when in service, are subject to the rules and articles of war. of these, the militia can only be used in the prosecution of this war for defensive purposes; the regulars and the volunteers may be ordered to act offensively against the enemy. they may amount, as we have seen, to eighty-six thousand men; and if canada be as weak and badly defended as gentlemen seem to suppose, and the administration should persist in their determination to conquer it, they should, i think, be satisfied with such a force to obtain an object so easily attainable. but, sir, said mr. r., our present military establishment is certainly sufficient for all purposes of defence; and i wish to see no land forces raised for any other purpose. i have no hesitation in declaring that i should lament to see canada or any of the british provinces on this continent in our possession, or forming a part of the american republic. they will never be worth, to this nation, in any point of view, the blood and treasure that their acquisition will cost us. it has been said by the honorable chairman of the committee on military affairs, that there are now in canada twelve thousand regular troops, and that the militia amount to six thousand. to any thing that gentleman should say, as matter of fact within his own knowledge, i should give the most implicit credit. but his estimate of the militia of canada must be too low. his sources of information on this point must have been incorrect. the population of canada (and when i speak of canada, i mean both upper and lower canada) has been variously stated, from three to five hundred thousand souls; according to no account, i believe, can it be less than three hundred thousand; and, i presume, no gentleman on this floor will say that estimate is too high. take, then, the population of canada to be , souls; what number of militia should this population furnish? we will take the state of new jersey as a guide for our calculation; according to the census of , the population of that state is , , and its militia, by the return for the same year, , , and the militia bears about the same proportion to the population in the states, generally, as it does in this state. if, then, the militia of jersey, with its population, amounts to near thirty-four thousand, we may, i think, without danger of contradiction, estimate the militia of canada (with a larger population) at between thirty and forty thousand; to these add the twelve thousand regular troops, and, in all probability, before we can act offensively against them in the spring, the number of these troops will be greatly increased, and they may have an efficient force of about fifty thousand men to oppose an invading army. it ought to be recollected, also, that a generous people, contending in their own defence, are actuated by far different and more worthy motives than an army of soldiers can be who attempt their subjugation. the canadians will contend for their homes, their wives, their children; for every thing that can or that ought to be dear to the human heart. they will be excited in such a cause to the boldest deeds. instead of traitors, we shall find them true to their country and themselves, and able and ready to exert all their energies in their own defence. if we conquer them, it must be by great exertions, and with immense loss. to subdue a people acting under the impulse of such considerations as will operate on them, will require a force at least double to that which they can oppose to us. but can any man imagine that, if we invade the british colonies, the war will be there? will the pride of britain, powerful as she is at sea, and ready at any moment to meet every emergency, permit her tamely to look on and see her provinces wrested from her, without exerting herself with all her energies for their security? will she make no diversions in their favor? will she suffer us to carry the war into her territories, and not retort upon us? does an unprotected seacoast of two thousand miles afford her no opportunities of attacking us? do our rich and flourishing cities, exposed without defence on the seaboard, to the cannon of her ships of war, furnish her with no objects worthy her attention? will the city of new york, laid in ashes, atone for the invasion of canada; or, will the acquisition of canada compensate to us for the loss of new york? sir, said mr. r., ten canadas, ten times told, would not be worth to this nation that single city. but of what value would these provinces be to us, if they could be easily acquired? shall we, by their conquest, obtain the objects for which this war is waged? shall we thereby secure our commercial rights? not at all, sir. on the other hand, if the british government would offer them to us, it would be our true policy to refuse to accept them. it is known to everybody that the population of several of the eastern states is now full, and that great numbers of their citizens are constantly emigrating. the direction this emigration takes, it is also well known, is south and west. this surplus of population of the eastern states settles on the banks of the ohio and mississippi, and carries with it its eastern habits, and, if you please, its eastern prejudices. they become connected and united with the people of the south and west. this union and intercourse will tend to render as the brothers of one family the citizens of this extended empire. the prejudices of the south against the north, and the north against the south, are weakened daily and will be destroyed. the course this emigration takes is just as it should be. the currents flow from the extremities into the centre of the country. the operation is most beneficial to the nation, and tends constantly to strengthen and cement the union of the states. but if the british provinces should be conquered and become incorporated into the republic, the direction of the emigration from the northern and eastern states will be at once changed. it will take a north instead of a south course. it will go just where it ought not to go. the strength of the nation, already too much scattered, will be still more weakened by a further expansion of its territory and population. the northern and eastern states, at present possessing more than their proper proportion of wealth, population, and strength, and having different habits, pursuits, and interests, from the middle and southern states, will, by the addition of these provinces, and the settlement of their surplus of population in them, acquire a weight and influence that this union cannot control. it will exist only at their pleasure, and, in a few years, the destruction of this government and a separation of the states will be the inevitable consequence. mr. pitkin rose and said:--before, mr. speaker, we give our sanction to this bill; before we agree to add so large a force to our present army, making the whole number fifty-five thousand men, is it not a duty we owe to ourselves and to our constituents, seriously to inquire into the policy, into the necessity of the measure, as well as into the present state of our relations with that nation against which we have declared war? almost at the very instant when congress declared war against great britain, the orders in council, and the blockade of may, , the most prominent causes of the war, were removed. i have always, sir, considered the orders in council as the greatest obstacle to the restoration of harmony and free intercourse between the two countries. had this obstacle been removed before the declaration of war, no one can believe that the executive would have recommended, or that a majority in either house of congress would have adopted a measure always fraught with evils in all governments, and which, in a government like ours, ought never to be resorted to but in the last extremity. i cannot believe that the president, in that case, would have recommended it, when, on the th of july, , through the secretary of state, he informed the british minister that, on the revocation of the orders in council, the non-importation law would be removed, and, of consequence, commercial intercourse would be restored between the two nations. it would be strange, indeed, if the president should, in one moment, restore a free intercourse between the two countries, and, in the next, recommend to congress a declaration of war, solely on account of another topic remaining in dispute. and, in case such recommendation had been made, if any confidence is to be placed in the declared opinions of gentlemen, many who voted for the war would not, under such circumstances, have given it their support. unfortunately for the country, the president did not embrace the opportunity, presented by the repeal of the orders in council, to remove the non-importation law, and thereby smooth the way for a complete restoration of harmony between great britain and the united states. sir, this would have been done, and the remaining subject of dispute been left in the same situation as before the declaration of war, to be adjusted by amicable arrangements. but, sir, as this was not done, it remains for us, it remains for the people of the united states, to determine whether they will encounter all the evils, all the calamities of war; whether they will sacrifice the fairest prospects, and the best interests of this rising country, on the point now in dispute with great britain. in the few remarks i shall submit to you, sir, and to the house, it is not my intention to go into the consideration of all the original avowed causes of the war; but to confine myself to the new aspect of affairs, presented to us since the declaration of war by the removal of the orders in council and blockades. on the subject of impressments, for which alone the war is now to be continued, what, let me ask, is the principle for which our government contends? it is this, sir: that the flag of the merchant vessel shall cover all who sail under it; or, in other words, that our flag shall protect all the foreigners our merchants may think proper to employ in their service, whether naturalized or not. before we raise immense armies, before we sacrifice any more of the lives of american citizens, let us inquire-- st. whether the principle, if yielded to us to-morrow, would benefit our native seamen, or would promote the real permanent interests of their country. d. whether there is a probability of obtaining a recognition of this principle by a continuance of the war. the foreigners employed in our service are those who have not been naturalized, and those who have taken the benefit of our naturalization laws. the former constitute nearly the whole: the latter class is very inconsiderable. the foreigners of the first description, of course, were in competition with our native seamen, and either exclude them from employment, or lessen the rate of their wages. in this way, then, the employment of foreign seamen is an injury to our native seamen; and, in a national point of view, it may well be questioned, whether their employment subserves the permanent and solid interest of the country. is it not, sir, of the first importance to us, as a commercial and maritime nation, especially when it may be engaged in a war with a great naval power, to be able to have a sufficient number of native seamen employed in our service? seamen, who shall be attached by every tie to this country, and on whom we can depend for its defence in time of danger? this, sir, it is presumed, cannot be denied. if so, is it not the dictate of wisdom and of sound policy for us to give encouragement to our native seamen in preference to those of any foreign country? the situation in which we now are proves the correctness, as well as the importance, of the position. we are now at war with great britain. and, at the very time when this war was declared, thousands of british seamen who had not been naturalized in this country, were, and they still continue in our employment. these seamen (i am speaking, sir, of those not naturalized) are now claimed as british subjects, and, indeed, by our own laws, are now considered as alien enemies. will gentlemen suffer me to turn their attention to this last fact? by a law passed the th of july, , it is enacted, that "whenever there shall be a declared war between the united states and any foreign nation or government, &c., all natives, citizens, denizens, or subjects, of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the united states, _and not actually naturalized_, shall be liable to be apprehended, restrained, secured, and removed, _as alien enemies_." ought we, sir, to depend upon these men to man our fleets, or to defend our ports and harbors? so far as foreigners of this description are concerned, i do not hesitate to say that it is not for the interest of this country that our flag should protect them, and that i will never consent to continue this war for the maintenance of this principle on their account. it is well known, sir, that not only great britain, but that france, and all the nations of europe, claim a right to the services of all their subjects in time of war. in the exercise of this right, the history of europe shows that, at the commencement of almost all wars, proclamations have been issued by the belligerent powers, recalling their subjects to aid in the defence of their respective countries. during the present war in europe, this has been done by great britain, by france, and the other belligerent powers. with respect to this claim of allegiance, it is not my intention to enter into the discussion whether, in the abstract, it is well or ill founded. this would lead me too far, and would tend to no practical good. i will, however, observe, that it is a right, a claim, which has been long exercised in europe, and has been sanctioned and acknowledged by the most able and distinguished european writers on public law. with respect to foreigners, who have been naturalized under our laws, the question is of a more distinct nature, and presents greater difficulties. we ought, undoubtedly, to fulfill all our obligations towards them. what these obligations are, and how far they extend, are questions about which a diversity of sentiment may prevail.--while they remain within our territories, and within our exclusive jurisdiction, they are shielded by the general principle, that all within our dominion and exclusive jurisdiction, are, of course, protected against all claims whatever, and never to be molested in any way without our consent. but, sir, when they go without our territories, and beyond our exclusive jurisdiction, and come within the sphere of the claim of their former government, the opinion of the best writers on public law seems to be, that the obligation of the country, under whose laws they have been naturalized, does not extend to guaranty them against such claims, unless their allegiance was changed with the consent of their former government. but, sir, whatever speculative opinions may be entertained on this subject, the number of naturalized seamen is so small, that few, if any, can be of opinion that we ought to have declared war, or that we ought to continue it on their account alone. the whole number of seamen naturalized from to , as appears by the returns made to the department of state, is , . this includes those of all nations. what proportion of these were british, or how many of them are now in our service, it is impossible to determine. i presume, however, the number of naturalized british seamen now in our employ does not exceed two or three hundred. shall we, sir, continue the war for these men? i am aware, sir, that with respect to impressment from our merchant vessels, abuses have happened, that although the right of taking american citizens is not claimed, the british commanders have not been scrupulous whether they took british subjects or american citizens. sir, these abuses i never can, and i never will justify. i am satisfied, however, that they have been exaggerated. but, sir, let me ask, if we have not really intended to protect foreign seamen under our flag, if we have not been guilty of gross negligence, to say the least of it, towards our native seamen? whether, by our laws, and the practice under them, we have afforded them all that protection and security to which they are entitled? in , congress passed an act for the relief and protection of american seamen. by this act, the collectors of the several ports were directed, on application, to enter the names of seamen, being citizens of the united states, to grant them certificates, in a form given in the act. in this certificate, the collector is to describe the person of the applicant: also, to declare that, on proof produced to him agreeable to the act, the seaman is a citizen of the united states of america. it is not a little singular that, although the proof of citizenship to be produced to the collector must be agreeable to the directions of the act, the act itself nowhere directs what that proof must be. every collector, therefore, has, under this act, used his own discretion, or has pursued such directions as he may have received from the government as to the kind of proof. what, sir, has been the practice under this law? have those certificates, or protections, as they are commonly called, been confined to _bona fide_ american citizens? no, sir; we cannot, we ought not, to shut our eyes against facts too notorious to be concealed or denied. under this act, made expressly for the protection of american seamen, every foreign seaman, almost, at the moment of setting his feet on our shores, has obtained a certificate from some collector, that he is a citizen of the united states; and, with this certificate in his pocket, although perhaps a deserter from his own government, he enters a public or private vessel, as an american seaman. the mode of obtaining proof of citizenship is well understood. among other modes, some of which are too disgraceful to be mentioned in this place, those foreign seamen will go before a magistrate, and, although hardly able to speak the english language intelligibly, will swear, for each other, that they were born within the united states, and are american citizens. on such proof, a proof of this sort, the collector issues his certificate. it will be recollected, sir, that this subject was brought before this house during the last session, in a case from philadelphia, when a certificate of this kind was obtained by the most flagrant and avowed act of perjury on the part of a foreigner who had just arrived in this country. it was found, on inquiry, that there was no law, either of pennsylvania or of the united states, to punish the man for this act of false swearing. not only have these protections been thus obtained by fraud and perjury, but they have also, long since, been an object of barter; they have been bought and sold, and transferred from one to another, not only in this country, but in foreign countries. to show the extent of this traffic in seamen's protections, permit me to state some facts, of which i have no doubt, knowing the source from whence i have derived them. an american captain having a ship in bristol, in england, without a crew, he applied to a man who kept a boarding-house for sailors, to procure a crew of american sailors in port; he showed him a great number of american protections, which he agreed to sell him for two guineas each, and with the aid of these to procure him a crew. by high wages, and by suiting these protections to the description of british sailors, he procured this captain his ship's crew; not only so, but when the ship was about to sail, and it was doubtful whether those who had engaged for the voyage would actually go on board, this man actually procured some of a press gang to take them as american sailors, who had deserted from their ships, and put them on board. when we ourselves place no confidence in these certificates, when we know that they are thus obtained by fraud and perjury, can we expect that foreign nations will give credit to them? instead of being a shield and protection to the real american sailor, they have become a dangerous weapon of offence. if, sir, it is not for the permanent interest of the united states to employ so many transient foreign seamen, we ought long since, not only to have refused these false protections, but to have passed laws for the encouragement of our native seamen, similar to those which have been adopted in commercial countries, and are commonly called navigation acts. this would, in some measure, have relieved us from the evils which we now experience, in consequence of the employment of so many foreign seamen. tuesday, january . _additional military force._ the house resumed the order of the day on the bill for raising an additional military force of , men for one year, the question being on the passage of the bill to a third reading. mr. boyd.--mr. speaker: it is with great diffidence that i address the chair. when the bill now before the house was under discussion on saturday last; that is, the then proposed amendment to insert eighteen months, instead of one year, i was offering my reasons why i thought that that amendment ought to prevail; when, unfortunately for me, i was considered as taking too great a latitude, and prevented from connecting my remarks. as there is little difference, in point of principle, as the bill then was and now is, i embrace this opportunity to make up that deficiency, and will now take care to stick as close as possible to the text. sir, i am opposed to passing the bill to a third reading, because i believe it to be altogether inadequate to the purpose intended to be accomplished by it. sir, when i last addressed the chair, i then took a retrospective view of our past expectations, plans, and propositions, from which we expected to derive great advantages. such were the expectations of that time, that i did not accord with them. those expectations have not been realized; but, instead thereof, we have met with disappointments and misfortunes. i thought that viewing the errors of the past was the most certain way to avoid the future; and i am not at this time sensible of that being erroneous. mr. speaker, i am an old man, and not in the habit of public speaking; and if i have not the faculty of composing my arguments in so connected a form as a lawyer's special pleadings, i hope the house will excuse me, and grant me their indulgence to do it in such form as my capacity will admit of. [the speaker observed that it was unpleasant to the chair that the gentleman should indulge in such remarks; he had certainly no wish not to give full latitude to debate. mr. b. said he stood corrected, and was allowed to proceed.] then, mr. speaker, i object, because, in my opinion, it is not calculated to produce the desired effect, or that which is intended by it: that is, to raise a force competent to the conquest of the canadas in the given time. i will ask how many regiments you have in your present establishment? say thirty-five, and you add twenty, making together fifty-five: what use is there in multiplying regiments without men? the chairman did state that from prudential motives, he had thought it inexpedient to give the number now actually in service, or enlisted by the present establishment. sir, it is not my wish to go into a strict inquiry; the regard i have for the honor of my country forbids me; but i will suppose seventeen thousand, and, i believe, that is large; then there is left officers for eighteen thousand men. are these not sufficient for the recruiting service? to engage every man who is willing to serve his country? to place a recruiting officer in almost every town and village in the united states? they are; and, therefore, you ought not to create an unnecessary addition. if the present establishment is not full, what is the reason? either that the pay and bounty are not sufficient inducements, or there is a dislike to the service; your creating more regiments will not remove that difficulty. i am against the bill, because the term of service is too short to answer any valuable purpose. suppose them intended to operate as a force against canada. let us see how that will answer the purpose: you send out your warrants to commence the enlistment of the proposed troops at this time; how long a time, is it contemplated, will be necessary for their enlistment? my opinion is, that you will not have them half full in four months; it is then time to take the field, and they are then raw troops. the honorable chairman (mr. d. r. williams) states to you the number of troops necessary for defensive operations, according to his calculation, to be ten thousand; deducting that number from the present establishment, supposing it to be full. it is not for me to say how far the present establishment is short of the whole number, or will be at that time; but we know that it is far short; we do not know that it can be filled, and if it cannot, then those calculations are fictitious. he also states to you that the regular force in the canadas is not to be estimated at less than twelve thousand, and three thousand in halifax, besides their militia. according to this, and my views, you cannot enter canada the next campaign with man for man; and surely that is not sufficient for conquest in an enemy's country. but i will suppose that you conquer a part of the country; that part must be garrisoned if you will keep it. in a year from the time of enlistment their term expires, and what becomes of your conquest, without force to keep it, supposing it to be made? say that the officers will be called into service in four months, and there is some of the men enlisted six or eight months hence; the officers must serve until the expiration of the term of the last man engaged, or a derangement must take place--always a disagreeable occurrence in an army. sir, if you have not numbers sufficient to bear down all opposition, invade it not: act on the defensive until you have engaged your men, and for a term of time sufficient to answer your purpose; then may you count upon success and honor. i do not say that i believe land conquests will produce an acknowledgment of our rights on the ocean. i believe it will not; but unless you act with great regularity, system, and economy, you cannot avoid it; you must meet with nothing but disappointments and disgrace. mr. law said as he was originally opposed to the war, and the preparatory steps which led to it, he could not admit the principle, _that because war was declared_ he was bound to acquiesce, and lend his aid to promote every plan for prosecuting the war which might be proposed, however wild and extravagant the same might appear. he said he felt it a duty, and he claimed it as a right, (although he was not ambitious very often to exercise the right,) to offer objections to any measures which might be introduced, if he supposed they were not calculated to produce the effect intended, although he might not be in favor of the object itself; or if he believed the measure proposed would be productive of real evil. now, sir, on this important occasion it would be wise for a moment to look back, and if we can bear the pain of retrospection, consider what this nation once was, what it might be, and what it in fact is. time was, and that within the recollection of us all, when industry, commerce, prosperity, and peace, gladdened the hearts of this once happy people, and the use of arms was known only as a pacific pastime. the nation, like some individuals, could not bear the intoxicating influence of prosperity. it might have preserved its enviable condition, but it labored and groaned under the weight of national blessings; it submitted to regard the sinister views and malign influence of foreign powers; it listened--fatally listened--to a serpent more fell than the serpent of old. and now how sad is the reverse, let a dejected and impoverished nation answer; in the past, we see departed comforts; before us, we behold ruin and distress. the unhappy crisis to which we have arrived has been progressive. had the transition been sudden, the nation would have been driven to desperation. we have been often admonished by those who foresaw the present evils; and had we been wise, might have avoided the calamities in which the country is now involved, and from which there is at present no prospect of speedy relief. sir, we will no longer dwell on times past; we will now briefly notice the causes which were alleged in the manifestoes which immediately preceded the declaration of war, and what was said to be the object, and attempt to show that the bill now under consideration is unnecessary for the attainment of the original object; that it will be injurious to the militia, and may endanger the liberties of the country. as to the causes of the war, without admitting or denying their justice on national principles to justify the act at the time it was declared, he might say that some of the pretended causes have never been seriously relied on by our own government. the principal one has been wholly removed; and but one of the ingenious catalogue now remains, and that might easily be adjusted to the mutual satisfaction of both nations. and, sir, it ought not to be forgotten, that the act declaring war was carried with great labor and much reluctance; and such was the majority in each branch of congress that it might well have justified a doubt as to the expediency when it did pass. besides, a large proportion of the united states were then, and even since have been opposed to the act. and this opposition was not confined to those who have been slanderously reported to be in the interest of great britain. the disgust and abhorrence was felt by some of the best patriots and purest bosoms in the country. experience has also proved that the public sentiment was against the war; witness the feeble ranks of your volunteers, the slow and reluctant march of the militia, and the tardy progress in the recruiting service. sir, the disgrace and disasters which have hitherto attended the army, have resulted more from a want of confidence in the justice and propriety of the war, than from the lack of talents in those who have conducted the battles, incompetent as they have been represented to command. a nation like this cannot be driven to war. they must feel the justice and necessity of it, and the justice must be so strong as to pierce every heart. this would be felt in a necessary and defensive war; then, indeed, the nation would smite with one arm. before such a people, roused in such a cause, the veteran legions of napoleon would be compelled to bite the dust. such, alas! is not our case. we have a war, without the spirit or unanimity which springs from these causes, and without the pecuniary means of supporting it. such a war must be disastrous! on what, sir, is the honor of this nation now suspended? on the navy! that little navy which was despised, neglected, and forgotten, until it fought itself into notice, and rescued the sinking honor of the country. what, sir, was the avowed object of this war? it has ever been said that conquest, with a view of extending our territory, and enlarging our dominion, was not the wish of this government. the idea of this republic following the footsteps of foreign ambitious nations, was so repugnant to the genius of the american people, and the constitution under which we live, that few, if any, of the warmest advocates of the war dare avow it. the pretence was to take, or rather to receive canada; for it was vainly supposed the inhabitants of that province would readily join our standard, on the first invitation. but we must go through the form of conquest to protect them from the charge of treason to their own government. we were to hold canada until peace should return, and then it was to be delivered up in exchange for maritime rights. and this it was supposed would be a powerful weapon in our hands in the negotiation. with this view the bills augmenting the army, raising the volunteers, and transferring the militia, passed. by the present bill, and the project connected with it, the original plan is abandoned with the volunteers and militia, and we are now presented with a compound system of conquest, extermination, and defence. it would seem with the force of fifty-five thousand regular troops, we are to conquer all the residue of north america; exterminate every tawny infidel this side of the isthmus of darien, and defend a seacoast many hundred miles in extent from the incursions of the enemy! this is truly a gigantic project. he said he could not give it his aid; and he thought some honorable gentlemen who voted for the war would, when they reflected on the magnitude of the scheme now presented, seize this occasion to retire, unwilling to entail on themselves and posterity the expense and ruin which would flow from the project, if carried into execution. mr. quincy.--mr. speaker, i fear that the state of my health may prevent my doing justice to my sentiments concerning this bill. i will, however, make the attempt though i should fail in it. the bill proposes that , men should be added to the existing military establishment. this, at present, consists of , men. so that the effect of this bill is to place, at the disposal of the executive, an army of , . it is not pretended that this addition is wanted either for defence or for the relief of the indian frontier. on the contrary, it is expressly acknowledged that the present establishment is sufficient for both of those objects. but the purpose for which these , men are demanded is, the invasion of canada. this is unequivocally avowed by the chairman of the committee of military affairs, (mr. d. r. williams,) the organ, as is admitted, of the will and the wishes of the american cabinet. the bill, therefore, brings, necessarily, into deliberation, the conquest of canada, either as an object, in itself desirable, or consequentially advantageous, by its effect, in producing an early and honorable peace.[ ] before i enter upon the discussion of those topics, which naturally arise from this state of the subject, i will ask your indulgence, for one moment, while i make a few remarks upon this intention of the american cabinet thus unequivocally avowed. i am induced to this from the knowledge, which i have, that this design is not deemed to be serious by some men of both political parties; as well within this house as out of it. i know that some of the friends of the present administration do consider the proposition as a mere feint, made for the purpose of putting a good face upon things, and of strengthening the hope of a successful negotiation, by exciting the apprehensions of the british cabinet for the fate of their colonies. i know, also, that some of those who are opposed in political sentiment to the men who are now at the head of affairs, laugh at these schemes of invasion; and deem them hardly worth controversy, on account of their opinion of the imbecility of the american cabinet, and the embarrassment of its resources. i am anxious that no doubt should exist upon this subject either in the house or in the nation. whosoever considers the object of this bill to be any other than that which has been avowed, is mistaken. whosoever believes this bill to be a means of peace, or any thing else than an instrument of vigorous and long-protracted war, is grievously deceived. and whoever acts under such mistake, or such deception, will have to lament one of the grossest, and perhaps one of the most critical errors of his political life. i warn, therefore, my political opponents; those honest men, of whom i know there are some, who, paying only a general attention to the course of public affairs, submit the guidance of their opinions to the men who stand at the helm, not to vote for this bill under any belief that its object is to aid negotiation for peace. let such gentlemen recur to their past experience on similar occasions. they will find that it has been always the case, whenever any obnoxious measure is about to be passed, that its passage is assisted by the aid of some such collateral suggestions. no sooner do the cabinet perceive that any potion, which they intend to administer, is loathed by a considerable part of the majority, and that their apprehensions are alive lest it should have a scouring effect upon their popularity, than certain under-operators are set to work, whose business it is to amuse the minds, and beguile the attention of the patients while the dose is swallowing. the language always is: "trust the cabinet doctors. the medicine will not operate as you imagine, but quite another way." after this manner the fears of the men are allayed, and the purposes of the administration are attained under suggestions very different from the true motives. thus, the embargo, which has since been unequivocally acknowledged to have been intended to coerce great britain, was adopted, as the executive asserted, "to save our essential resources." so, also, when the present war was declared against great britain, members of the house were known to state that they voted for it under the suggestion that it would not be a war of ten days: that it was known that mr. foster had instructions to make definitive arrangements, in his pocket; and that the united states had only to advance to the point of war, and the whole business would be settled. and now an army, which, in point of numbers, cromwell might envy, greater than that with which cæsar passed the rubicon, is to be helped through a reluctant congress, under the suggestion of its being only a parade force, to make negotiation successful; that it is the incipient state of a project for a grand pacification! i warn also my political friends. these gentlemen are apt to place great reliance on their own intelligence and sagacity. some of these will tell you that the invasion of canada is impossible. they ask where are the men--where is the money to be obtained? and they talk very wisely concerning common sense and common prudence, and will show, with much learning, how this attempt is an offence against both the one and the other. but, sir, it has been my lot to be an observer of the character and conduct of the men now in power for these eight years past. and i state, without hesitation, that no scheme ever was, or ever will be, rejected by them, merely on account of its running counter to the ordinary dictates of common sense and common prudence. on the contrary, on that very account, i believe it more likely to be both suggested and adopted by them. and, what may appear a paradox, for that very reason, the chance is rather increased that it will be successful. i could illustrate this position twenty ways. i shall content myself with remarking only upon two instances, and those recent; the present war, and the late invasion of canada. when war against great britain was proposed at the last session, there were thousands in these united states, and i confess to you i was myself among the number, who believed not one word of the matter. i put my trust in the old fashioned notions of common sense, and common prudence. that a people, which had been more than twenty years at peace, should enter upon hostilities against a people which had been twenty years at war; that a nation, whose army and navy were little more than nominal, should engage in a war with a nation possessing one of the best appointed armies and the most powerful marine on the globe; that a country, to which neutrality had been a perpetual harvest, should throw that great blessing away for a controversy in which nothing was to be gained, and every thing valuable put in jeopardy; from these, and innumerable like considerations, the idea seemed so absurd that i never once entertained it as possible. and now, after war has been declared, the whole affair seems so extraordinary and so utterly irreconcilable to any previous suggestions of wisdom and duty, that i know not what to make of it or how to believe it. even at this moment my mind is very much in the state of certain pennsylvania germans, of whom i have heard it asserted that they are taught to believe, by their political leaders, and do at this moment consider the allegation, that war is at present existing between the united states and great britain, to be a "federal falsehood." it was just so with respect to the invasion of canada. i heard of it last june. i laughed at the idea, as did multitudes of others, as an attempt too absurd for serious examination. i was in this case again beset by common sense and common prudence. that the united states should precipitate itself upon the unoffending people of that neighboring colony, unmindful of all previously subsisting amities, because the parent state, three thousand miles distant, had violated some of our commercial rights; that we should march inland, to defend our ships, and seamen; that with raw troops, hastily collected, miserably appointed, and destitute of discipline, we should invade a country defended by veteran forces, at least equal, in point of numbers, to the invading army; that bounty should be offered and proclamations issued, inviting the subjects of a foreign power to treason and rebellion, under the influences of a quarter of the country upon which a retort of the same nature was so obvious, so easy, and, in its consequences, so awful; in every aspect, the design seemed so fraught with danger and disgrace, that it appeared absolutely impossible that it should be seriously entertained. those, however, who reasoned after this manner were, as the event proved, mistaken. the war was declared. canada was invaded. we were in haste to plunge into these great difficulties, and we have now reason, as well as leisure enough, for regret and repentance. the great mistake of all those, who reasoned concerning the war and the invasion of canada, and concluded that it was impossible that either should be seriously intended, resulted from this, that they never took into consideration the connection of both those events with the great election for the chief magistracy which was then pending. it never was sufficiently considered by them, that plunging into war with great britain was among the conditions on which the support for the presidency was made dependent. they did not understand, that an invasion of canada was to be in truth only a mode of carrying on an electioneering campaign. but since events have explained political purposes, there is no difficulty in seeing the connections between projects and interests. it is now apparent to the most mole-sighted how a nation may be disgraced, and yet a cabinet attain its desired honors. all is clear. a country may be ruined, in making an administration happy. i said, mr. speaker, that such strange schemes, apparently irreconcilable to common sense and common prudence, were, on that very account, more likely to be successful. sir, there is an audacity, which sometimes stands men instead both of genius and strength. and most assuredly, he is most likely to perform that which no man ever did before, and will never be likely to do again, who has the boldness to undertake that which no man ever thought of attempting in time past, and no man will ever think of attempting in time future. i would not, however, be understood as intimating that this cabinet project of invasion is impracticable, either as it respects the collection of means and instruments, or in the ultimate result. on the contrary, sir, i deem both very feasible. men may be obtained. for if forty dollars bounty cannot obtain them, a hundred dollars bounty may, and the intention is explicitly avowed not to suffer the attainment of the desired army to be prevented by any vulgar notions of economy. money may be obtained. what by means of the increased popularity derived from the augmentation of the navy, what by opening subscription offices in the interior of the country, what by large premiums, the cupidity of the moneyed interest may be tempted beyond the point of patriotic resistance, and all the attained means being diverted to the use of the army, pecuniary resources may be obtained, ample at least for the first year. and, sir, let an army of thirty thousand men be collected, let them be put under the command of a popular leader, let them be officered to suit his purposes, let them be flushed with victories, and see the fascinating career of military glory opening upon them, and they will not thereafter ever be deficient in resources. if they cannot obtain their pay by your votes, they will collect it by their own bayonets; and they will not rigidly observe any air-lines or water-lines in enforcing their necessary levies; nor be stayed by abstract speculation concerning right, or learned constitutional difficulties. i will now proceed to discuss those topics which naturally arise out of the bill under consideration, and examine the proposed invasion of canada, at three different points of view. . as a means of carrying on the subsisting war. . as a means of obtaining an early and honorable peace. . as a means of advancing the personal and local projects of ambition of the members of the american cabinet. concerning the invasion of canada, as a means of carrying on the subsisting war, it is my duty to speak plainly and decidedly, not only because i herein express my own opinions upon the subject, but, as i conscientiously believe, the sentiments also of a very great majority of that whole section of country in which i have the happiness to reside. i say then, sir, that i consider the invasion of canada as a means of carrying on this war, as cruel, wanton, senseless, and wicked. you will easily understand, mr. speaker, by this very statement of opinion, that i am not one of that class of politicians which has for so many years predominated in the world, on both sides of the atlantic. you will readily believe, that i am not one of those who worship in that temple, where condorcet is the high priest and machiavel the god. with such politicians the end always sanctifies the means; the least possible good to themselves perfectly justifies, according to their creed, the inflicting the greatest possible evil upon others. in the judgment of such men, if a corrupt ministry at three thousand miles distance shall have done them an injury, it is an ample cause to visit with desolation a peaceable and unoffending race of men, their neighbors, who happen to be associated with that ministry by ties of mere political dependence. what though these colonies be so remote from the sphere of the questions in controversy, that their ruin or prosperity could have no possible influence upon the result? what though their cities offer no plunder? what though their conquest can yield no glory? in their ruin there is revenge. and revenge to such politicians is the sweetest of all morsels. with such men, neither i nor the people of that section of country in which i reside hold any communion. there is between us and them no one principle of sympathy either in motive or action. that wise, moral, reflecting people, which constitute the great mass of the population of massachusetts--indeed, of all new england--look for the sources of their political duties nowhere else than in those fountains from which spring their moral duties. according to their estimate of human life and its obligations, both political and moral duties emanate from the nature of things, and from the essential and eternal relations which subsist among them. true it is, that a state of war gives the right to seize and appropriate the property and territories of an enemy. true it is, that the colonies of a foreign power are viewed, according to the law of nations, in the light of its property. but in estimating the propriety of carrying desolation into the peaceful abodes of their neighbors, the people of new england will not limit their contemplation to the mere circumstance of abstract right, nor ask what lawyers and jurisprudists have written or said, as if this was conclusive upon the subject. that people are much addicted to think for themselves, and in canvassing the propriety of such an invasion, they will consider the actual condition of those colonies, their natural relations to us, and the effect which their conquest and ruin will have, not only upon the people of those colonies, but upon themselves, and their own liberties and constitution. and above all, what i know will seem strange to some of those who hear me, they will not forget to apply to a case occurring between nations, as far as is practicable, that heaven-descended rule which the great author and founder of their religion has given them for the regulation of their conduct towards each other. they will consider it the duty of these united states to act towards those colonies as they would wish those colonies to act, in exchange of circumstances, towards these united states. the actual condition of those colonies, and the relation in which they stood to the united states antecedent to the declaration of war, were of this nature. those colonies had no connection with the questions in dispute between us and their parent state. they had done us no injury. they meditated none to us. between the inhabitants of those colonies and the citizens of the united states, the most friendly and mutually useful intercourse subsisted. the borderers on this, and those on the other side of the st. lawrence, and of the boundary line, scarcely realized that they were subjects of different governments. they interchanged expressions and acts of civility. intermarriages took place among them. the canadian sometimes settled in the united states; sometimes our citizens emigrated to canada. after the declaration of war, had they any disposition to assail us? we have the reverse expressly in evidence. they desired nothing so much as to keep perfect the then subsisting relations of amity. would the conquest of those colonies shake the policy of the british cabinet? no man has shown it. unqualified assertions, it is true, have been made, but totally unsupported by any evidence, or even the pretence of argument. on the contrary, nothing was more obvious than that an invasion of canada must strengthen the ministry of great britain, by the excitement and sympathy which would be occasioned in the people of that country in consequence of the sufferings of the innocent inhabitants of those colonies, on account of a dispute in which they had no concern, and of which they had scarcely a knowledge. all this was anticipated--all this was frequently urged to this house, at the last and preceding sessions, as the necessary effect of such a measure. the event has justified those predictions. the late elections in great britain have terminated in the complete triumph of the friends of the british ministry. in effecting this change, the conduct of the united states in relation to canada has had, undeniably, a mighty influence, by the disgust and indignation felt by the british people at a step so apparently wanton and cruel. as there was no direct advantage to be hoped from the conquest of canada, so also, there was none incidental. plunder there was none--at least, none which would pay the cost of the conquest. glory there was none. could seven millions of people obtain glory by precipitating themselves upon half a million, and trampling them into the dust? a giant obtain glory by crushing a pigmy! that giant must have a pigmy's spirit who could reap, or hope, glory from such an achievement. surely a people, with whom we were connected by so many natural and adventitious ties, had some claims upon our humanity. surely if our duty required that they and theirs should be sacrificed to our interests or our passions, some regret mingled in the execution of our purpose. we postponed the decree of ruin until the last moment. we hesitated--we delayed until longer delay was dangerous. alas! sir, there was nothing of this kind or character in the conduct of the cabinet. the war had not yet been declared, when general hull had his instructions to put in train the work of destruction. there was an eagerness for the blood of the canadians--a headlong precipitation for their ruin, which indicated any thing else rather than feelings of humanity, or visitings of nature, on account of their condition. our armies were on their march for their frontier, while yet peace existed between this country and the parent state; and the invasion was obstinately pursued, after a knowledge that the chief ground of controversy was settled by the abandonment of the british orders in council; and after nothing remained but a stale ground of dispute, which, however important in itself, was of a nature for which no man has ever yet pretended that for it alone war would have been declared. did ever one government exhibit towards any people a more bloody and relentless spirit of rancor? tell me not of petty advantages--of remote, and possibly useful contingencies which might arise from the devastation of those colonies. show any advantage which justifies that dreadful vial of wrath which, if the intention of the american cabinet had been fulfilled, would, at this day, have been poured out upon the heads of the canadians. it is not owing to the tender mercies of the american administration, if the bones of the canadians are not at this hour mingled with the ashes of their habitations. it is easy enough to make an excuse for any purpose. when a victim is destined to be immolated, every hedge presents sticks for the sacrifice. the lamb who stands at the mouth of the stream, will always trouble the water, if you take the account of the wolf who stands at the source of it. but show a good to us bearing any proportion to the multiplied evils proposed to be visited upon them. there is none. never was there an invasion of any country worse than this, in point of moral principle, since the invasion of the west indies by the buccaneers, or that of the united states by captain kidd. indeed, both kidd and the buccaneers had more apology for their deed than the american cabinet. they had at least the hope of plunder; but in this case there is not even the poor refuge of cupidity. we have heard great lamentations about the disgrace of our arms on the frontier. why, sir, the disgrace of our arms on the frontier is terrestrial glory, in comparison with the disgrace of the attempt. the whole atmosphere rings with the utterance, from the other side of the house of this word "glory"--"glory" in connection with this invasion. what glory? is it the glory of the tiger, which lifts his jaws, all foul and bloody, from the bowels of his victim, and roars for his companions of the wood to come and witness his prowess and his spoils? such is the glory of genghis khan, and of bonaparte. be such glory far, very far, from my country. never, never may it be accursed with such fame. "fame is no plant that grows on mortal soil, nor in the glistering foil set off to the world, nor in broad rumor lies, but lives and spreads aloft, by those pure eyes, and perfect witness of all-judging jove, as he pronounces lastly on each deed." may such fame as this be my country's meed! but the wise and thoughtful people of our northern section will confine their reflections to the duties which result from the actual condition of those colonies, and their general relations to the united states; they will weigh the duties the people of the united states owe to themselves, and contemplate the effect which the subjugation of those canadians will have upon our own liberties and constitution. sir, it requires but little experience in the nature of the human character, and but a very limited acquaintance with the history of man, to be satisfied that with the conquest of the canadas, the liberties and constitution of this country perish. of all nations in the world, this nation is the last which ought to admit, among its purposes, the design of foreign conquests. states such as are these, connected by ties so peculiar; into whose combination there enters necessarily numerous jealousies and fears; whose interests are not always reconcilable; and the passions, education, and character of whose people, on many accounts, are repugnant to each other; with a constitution made merely for defence; it is impossible that an association of independent sovereignties, standing in such relations to each other, should not have the principles of its union, and the hopes of its constitution, materially affected by the collection of a large military force, and its employment in the subjugation of neighboring territories. it is easy to see that an army collected in such a state of society as that which exists in this country, where wages are high and subsistence easily to be obtained, must be composed, so far as respects the soldiery, for the most part of the refuse of the country; and as respects the officers, with some honorable exceptions indeed, must consist, in a considerable degree, of men desperate sometimes in fortune, at others in reputation; "choice spirits;" men "tired of the dull pursuits of civil life," who have not virtue or talents to rise in a calm and settled state of things, and who, all other means of advancement or support wanting or failing, take to the sword. a body of thirty or fifty thousand such men, combined, armed, and under a popular leader, is a very formidable force. they want only discipline and service to make them veterans. opportunity to acquire these, canada will afford. the army which advances to the walls of quebec, in the present condition of canadian preparation, must be veteran. and a veteran army, under a popular leader, flushed with victory, each individual realizing, that while the body remains combined, he may be something, and possibly very great; that if dissolved, he sinks into insignificance; will not be disbanded by vote. they will consult with one another, and with their beloved chieftain, upon this subject; and not trouble themselves about the advice of the old people who are knitting and weaving in the chimney corners at washington. let the american people receive this as an undoubted truth, which experience will verify. whoever plants the american standard on the walls of quebec, conquers it for himself, and not for the people of the united states. whoever lives to see that event--may my head be low in the dust before it happen!--will witness a dynasty established in that country by the sword. he will see a king or an emperor, dukedoms, and earldoms, and baronies, distributed to the officers, and knights' fees bestowed on the soldiery. such an army will not trouble itself about geographical lines, in portioning out the divisions of its new empire; and will run the parallels of its power by other steel than that of the compass. when that event happens, the people of new england, if they mean to be free, must have a force equal to defend themselves against such an army. and a military force equal to this object will itself be able to enslave the country. mr. speaker--when i contemplate the character and consequences of this invasion of canada; when i reflect upon its criminality and its danger to the peace and liberty of this once happy country; i thank the great author and source of all virtue, that through his grace that section of country in which i have the happiness to reside, is, in so great a degree, free from the iniquity of this transgression. i speak it with pride, the people of that section have done what they could to vindicate themselves and their children from the burden of this sin. that whole section has risen, almost as one man, for the purpose of driving from power, by one great constitutional effort, the guilty authors of this war. if they have failed, it has not been through the want of will or of exertion, but in consequence of the weakness of their political power. when in the usual course of divine providence, who punishes nations as well as individuals, his destroying angel shall on this account pass over this country--and sooner or later, pass it will--i may be permitted to hope that over new england his hand will be stayed. our souls are not steeped in the blood which has been shed in this war. the spirits of the unhappy men who have been sent to an untimely audit, have borne to the bar of divine justice no accusations against us. this opinion, concerning the principles of this invasion of canada, is not peculiar to me. multitudes who approve the war, detest it. i believe this sentiment is entertained, without distinction of parties, by almost all the moral sense, and nine-tenths of the intelligence, of the whole northern section of the united states. i know that men from that quarter of the country will tell you differently. stories of a very different kind are brought by all those who come trooping to washington for place, appointments, and emoluments; men who will say any thing to please the ear, or do any thing to please the eye of majesty, for the sake of those fat contracts and gifts which it scatters; men whose fathers, brothers, and cousins, are provided for by the departments; whose full-grown children are at, suck at the money-distilling breasts of the treasury; the little men who sigh after great offices; those who have judgeships in hand or judgeships in promise; toads that live upon the vapor of the palace, that swallow great men's spittle at the levees; that stare and wonder at all the fine sights which they see there; and most of all wonder at themselves--how they got there to see them. these men will tell you, that new england applauds this invasion. but, mr. speaker, look at the elections. what is the language they speak? the present tenant of the chief magistracy rejected, by that whole section of country, with the exception of a single state unanimously. and for whom? in favor of a man, out of the circle of his own state without much influence, and personally almost unknown. in favor of a man against whom the prevailing influence in new england had previously strong political prejudices; and with whom, at the time of giving him their support, they had no political understanding; in favor of a man whose merits, whatever in other respects they might be, were brought into notice, in the first instance, chiefly so far as that election was concerned, by their opinion of the utter want of merit of the man whose re-election they opposed. among the causes of that universal disgust which pervaded all new england, at the administration and its supporters, was the general dislike and contempt of this invasion of canada. i have taken some pains to learn the sentiments which prevail on this subject in new england, and particularly among its yeomanry, the pride and the hope of that country. i have conversed with men, resting on their spades and leaning on the handles of their ploughs, while they relaxed for a moment from the labor by which they support their families, and which gives such a hardihood and character to their virtues. they asked--"what do we want of canada? we have land enough. do we want plunder? there is not enough of that to pay the cost of getting it. are our ocean rights there? or is it there our seamen are held in captivity? are new states desired? we have plenty of those already. are they to be held as conquered territories? this will require an army there. then, to be safe, we must have an army here. and with a standing army, what security for our liberties?" these are no fictitious reasonings. they are the suggestions i doubt not of thousands and tens of thousands of our hardy new england yeomanry; men who, when their country calls, at any wise and real exigency, will start from their native soils and throw their shields over their liberties, like the soldiers of cadmus, "armed in complete steel;" yet men, who have heard the winding of your horn to the canada campaign, with the same apathy and indifference with which they would hear in the streets the trilling of a jews-harp, or the twirring of a banjo. the plain truth is, that the people of new england have no desire for canada. their moral sentiment does not justify, and they will not countenance its invasion. i have thus stated the grounds on which they deem, and i have felt myself bound to maintain, that this contemplated invasion of that territory is, as it respects the canadians, wanton and cruel; because it inflicts the greatest imaginable evils on them, without any imaginable benefit to us; that, as it respects the united states, such an invasion is senseless, because, ultimately, ruinous to our own political safety; and wicked, because it is an abuse of the blessings of divine providence, and a manifest perversion of his multiplied bounties, to the purpose of desolating an innocent and unoffending people. i shall now proceed to the next view i proposed to take on this project of invading canada, and consider it in the light of a means to obtain an early and honorable peace. it is said, and this is the whole argument in favor of this invasion, in this aspect, that the only way to negotiate successfully with great britain, is to appeal to her fears and raise her terrors for the fate of her colonies. i shall here say nothing concerning the difficulties of executing this scheme; nor about the possibility of a deficiency both in men and money. i will not dwell on the disgust of all new england, nor on the influence of this disgust with respect to your efforts. i will admit, for the present, that an army may be raised, and that during the first years it may be supported by loans, and that afterwards it will support itself by bayonets. i will admit farther, for the sake of argument, that success is possible and that great britain realizes the practicability of it. now, all this being admitted, i maintain that the surest of all possible ways to defeat any hope from negotiation, is the threat of such an invasion, and an active preparation to execute it. those must be very young politicians, their pin-feathers not yet grown, and however they may flutter on this floor, they are not yet fledged for any high or distant flight, who think that threats and appealing to fear are the ways of producing a disposition to negotiate in great britain, or in any other nation which understands what it owes to its own safety and honor. no nation can yield to threat, what it might yield to a sense of interest; because, in that case, it has no credit for what it grants, and what is more, loses something in point of reputation, from the imbecility which concessions made under such circumstances indicate. of all nations in the world, great britain is the last to yield to considerations of fear and terror. the whole history of the british nation is one tissue of facts, tending to show the spirit with which she meets all attempts to bully and brow-beat her into measures inconsistent with her interests or her policy. no nation ever before made such sacrifices of the present to the future. no nation ever built her greatness more systematically, on the principles of a haughty self-respect, which yields nothing to suggestions of danger, and which never permits either her ability or inclination to maintain her rights to be suspected. in all negotiations, therefore, with that power, it may be taken as a certain truth, that your chance of failure is just in proportion to the publicity and obtrusiveness of threats and appeals to fear. the american cabinet understands all this very well, although this house may not. their policy is founded upon it. the project of this bill is to put at a still further distance the chance of amicable arrangement, in consequence of the dispositions which the threat of invasion of their colonies, and attempt to execute it, will excite in the british nation and ministry. i have some claim to speak concerning the policy of the men who constitute the american cabinet. for eight years i have studied their history, characters, and interests. i know no reason why i should judge them severely, except such as arise from those inevitable conclusions, which avowed principles and distinct conduct have impressed upon the mind. i say, then, sir, without hesitation, that in my judgment, the embarrassments of our relations with great britain, and keeping alive between this country and that a root of bitterness, has been, is, and will continue to be, a main principle of the policy of this american cabinet. they want not a solid settlement of our differences. if the nation will support them in it, they will persevere in the present war. if it will not, some general arrangements will be the resort, which will leave open opportunities for discord; which on proper occasions will be improved by them. i shall give my reasons for this opinion. i wish no sentiments of mine to have influence any farther than the reasons upon which they are founded justify. they are public reasons, arising from undeniable facts; the nation will judge for itself. the men who now, and who, for these twelve years past, have, to the misfortune of this country, guided its councils and directed its destinies, came into power on a tide, which was raised and supported by elements constituted of british prejudices and british antipathies. the parties which grew up in this nation took their origin and form at the time of the adoption of the treaty negotiated by mr. jay, in . the opposition of that day, of which the men now in power were the leaders, availed themselves, very dexterously, of the relics of that hatred towards the british name which remained after the revolutionary war. by perpetually blowing up the embers of the ancient passions, they excited a flame in the nation; and by systematically directing it against the honorable men who at that time conducted its affairs, the strength and influence of those men were impaired. the embarrassments with france, which succeeded, in and , were turned to the same account. unfortunately, those who then conducted the public affairs attended less to the appearance of things, than to their measures; and considered more what was due to their country than was prudent, in the state of the prejudices and jealousies of the people, thus artfully excited against them. they went on, in the course they deemed right, regardless of personal consequences, and blind to the evidences of discontent which surrounded them. the consequences are well known. the supreme power in these united states passed into the hands which now possess it; in which it has been continued down to the present time. the transfer of power was effected, undeniably, principally on the very ground of those prejudices and antipathies which existed in the nation against great britain; and which had been artfully fomented by the men now in power, and their adherents, and directed against their predecessors. these prejudices and passions constitute the main pillar of the power of these men. in my opinion, they never will permit it to be wholly taken away from them. they never will permit the people of this country to look at them and their political opponents, free of that jaundice with which they have carefully imbued the vision of their own partisans. they never will consent to be weighed in a balance of mere merits; but will always take care to keep in reserve some portion of these british antipathies, to throw as a make-weight into the opposite scale, whenever they find their own sinking. to continue, multiply, strengthen, and extend these props of their power, has been, still is, the object of the daily study and the nightly vigils of our american cabinet. for this the british treaty was permitted to expire by its own limitation; notwithstanding the state of things which the treaty of amiens had produced in europe was so little like permanent peace, that the occurrence of the fact, on which the force of that limitation depended, might easily have been questioned, with but little violence to the terms, and in perfect conformity with its spirit. for this a renewal of the treaty of was refused by our cabinet, although proffered by the british government. for this the treaty negotiated by messrs. monroe and pinkney in was rejected. for this, in , fifty thousand dollars were paid out of the public treasury to john henry, for the obvious purpose of enabling the american cabinet to calumniate their political opponents, on this very point of british influence, upon the eve of elections, occurring in massachusetts, on the event of which the perpetuation of their own power was materially dependent. mr. speaker, such men as these never will permit a state of things to pass away, so essential to their influence. be it peace or war arrangement or hostility, the association of these british antipathies in the minds of the mass of the community, with the characters of their political opponents, constitutes the great magazine of their power. this composes their whole political larder. it is, like lord peter's brown loaf, their "beef, mutton, veal, venison, partridge, plum-pudding, and custard." from the time of the expiration of the british treaty of , and the refusal to renew it, the american cabinet have been careful to precede negotiation with some circumstances or other, calculated to make it fail, or at least to make a successful result less certain. thus in , when, from the plunder of commerce, by british cruisers, a negotiation, notwithstanding the obvious reluctance of the cabinet, was forced upon them, by the clamors of the merchants, the non-importation law of april, in that year, was obtruded between the two countries. in the course of the debate upon that law, it was opposed upon this very ground, that it was an obstacle to a successful negotiation. it was advocated, like the bill now under discussion, as an aid to successful negotiation. it was also said by the opponents of the law of , that great britain would not negotiate under its operation, and that arrangement, attempted under proper auspices, could not be difficult, from the known interests and inclinations of that nation. what was the consequence? precisely that which was anticipated. the then president of the united states was necessitated to come to this house, and recommend a suspension of the operation of that law, upon the openly-avowed ground of its being expedient to give that evidence of a conciliatory disposition; really, because, if permitted to continue in operation, negotiation was found to be impracticable. after the suspension of that law, a treaty was formed. the merits of that treaty, it is not within the scope of my present argument to discuss. it is sufficient to say, it was deemed good enough to receive the sanction of messrs. monroe and pinkney. it arrived in america and was rejected by the authority of a single individual; apparently because of the insufficiency of the arrangement about impressment. really because a settlement with great britain, at that time, did not "enter into the scope of the policy" of the american cabinet. the negotiation was indeed renewed, but it was followed up with the enforcement of the non-importation law, and the enactment of the embargo. both which steps were stated at the time, as they proved afterwards, to be of a nature to make hopeless successful negotiation. in this state the executive power of this nation formally passed into new hands, but substantially remained under the old principles of action, and subject to the former influences. it was desirable that a fund of popularity should be acquired for the new administration. accordingly, an arrangement was made with mr. erskine, and no questions asked, concerning the adequacy of his powers. but, lest this circumstance should not defeat the proposed arrangement, a clause was inserted in the correspondence containing an insult to the british government, offered in the face of the world, such as no man ever gave to a private individual whom he did not mean to offend. the president of the united states said, in so many words, to the person at the head of that government, that he did not understand what belonged to his own honor, as well as it was understood by the president himself. the effect of such language was natural, it was necessary; it could not but render the british government averse to sanction mr. erskine's arrangement. the effect was anticipated by mr. robert smith, then acting as secretary of state. he objected to its being inserted, but it was done in the president's own handwriting. as mr. erskine's authority was denied by the british government, it is well known that in fact, on the point of this indignity, the fate of that arrangement turned. can any one doubt that our cabinet meant that it should have this effect? i send you word, mr. speaker, that i have agreed with your messenger, and wish you to ratify it. i think you, however, no gentleman, notwithstanding; and that you do not understand, as well as i, what is "due to your own honor." what think you, sir? would you ratify such an arrangement if you could help it? does a proffer of settlement, connected with such language, look like a disposition or an intention to conciliate? i appeal to the common sense of mankind on the point. the whole stage of the relations, induced between this country and great britain, in consequence of our embargo and restrictive systems, was, in fact, a standing appeal to the fears of the british cabinet. for, notwithstanding those systems were equal in their terms, so far as they affected foreign powers, yet their operation was notoriously almost wholly upon great britain. to yield to that pressure, or to any thing which should foster, in this country, the idea that it was an effectual weapon of hostility, was nothing more than conceding that she was dependent upon us. a concession, which, when once made by her, was certain to encourage a resort to it by us on every occasion of difficulty between the two nations. reasoning, therefore, upon the known nature of things, and the plain interests of great britain, it was foretold that, during its continuance she would concede nothing. and the event has justified these predictions. but the circumstance the most striking, and that furnishing the most conclusive evidence of the indisposition of the american cabinet to peace, and their determination to carry on the war, is that connected with the pretended repeal of the french decrees, in november, , and the consequent revival, in , of our restrictive system against great britain. if ever a body of men were pledged to any thing, the american cabinet, its friends and supporters, were pledged for the truth of this fact; that the french decrees of berlin and milan were definitively repealed as it respects the united states, on the first of november, . if ever any body of men staked their whole stock of reputation upon any point, our cabinet did it on this. they and their partisans asserted and raved. they denounced every man as a british partisan who denied it. they declared the restrictive system was revived by the mere effect of the proclamation. but lest the courts of law should not be as subservient to their policy as might be wished, they passed the law of the d of march, , upon the basis of this repeal, and of its being definitive. the british government refused, however, to recognize the validity of this repeal, and denied that the berlin and milan decrees were repealed on the first of november, , as our cabinet asserted. thus, then, stood the argument between the british ministry and our cabinet. the british ministry admitted that if the berlin and milan decrees were repealed on the st of november, , they were bound to revoke their orders in council. but they denied that repeal to exist. our cabinet, on the other hand, admitted that if the berlin and milan decrees were not repealed on the st of november, , the restrictive system ought not to have been revived against great britain. but they asserted that repeal to exist. this was, virtually, the state of the question between the two countries on this point. and it is agreed, on all hands, that this refusal of the british government to repeal their orders in council, after the existence of the repeal of the berlin and milan decrees, as asserted by the american cabinet, was the cause of the declaration of war between the two countries. so that in truth, the question of the right of war depended upon the existence of that fact; for if that fact did not exist, even the american cabinet did not pretend that, in the position in which things then stood, they had a right to declare war, on account of the continuance of the british orders in council. now, what is the truth in relation to this all-important fact, the definitive repeal of the berlin and milan decrees on the st of november, ; the pivot upon which turned the revival of the restrictive system and our declaration of war? why, sir, the event has proved that in relation to that fact the american cabinet was, to say the least, in an error. bonaparte himself, in a decree, dated the th of april, , but not promulgated till a year afterwards, distinctly declares that the berlin and milan decrees were not definitively repealed, as relates to the united states, on the st of november, . he also declares that they are then, on that twenty-eighth of april, for the first time, repealed. and he founds the issuing of this decree on the act of the american congress of the d of march, . that very act, which was passed upon the ground of the definitive repeal of the berlin and milan decrees, on the st of november, ; and which, it is agreed on all sides, the american government were bound in honor not to pass, except in case of such antecedent repeal. were ever a body of men so abandoned in the hour of need, as the american cabinet, in this instance by bonaparte? was ever any body of men so cruelly wounded in the house of their friend? this, this was "the unkindest cut of all." but how was it received by the american cabinet? surely they were indignant at this treatment. surely the air rings with reproaches upon a man who has thus made them stake their reputation upon a falsehood; and then gives little less than the lie direct, to their assertions. no, sir, nothing of all this is heard from our cabinet. there is a philosophic tameness that would be remarkable, if it were not, in all cases affecting bonaparte, characteristic. all the executive of the united states has found it in his heart to say, in relation to this last decree of bonaparte, which contradicts his previous allegations and asseverations, is, that "this proceeding is rendered, by the time and manner of it, liable to many objections!" i have referred to this subject as being connected, with future conduct, strikingly illustrative of the disposition of the american cabinet to carry on the war, and of their intention, if possible, not to make peace. surely, if any nation had a claim for liberal treatment from another, it was the british nation from the american, after the discovery of the error of the american government, in relation to the repeal of the berlin and milan decrees, in november, . in consequence of that error, the american cabinet had ruined numbers of our own citizens, who had been caught by the revival of the non-intercourse law; they had revived that law against great britain, under circumstances which now appeared to have been fallacious; and they had declared war against her, on the supposition, that she had refused to repeal her orders in council, after the french decrees were in fact revoked: whereas, it now appears that they were in fact not revoked. surely the knowledge of this error was followed by an instant and anxious desire to redress the resulting injury. as the british orders in council were in fact revoked, on the knowledge of the existence of the french decree of repeal, surely the american cabinet at once extended the hand of friendship; met the british government half way; stopped all farther irritation; and strove to place every thing on a basis best suited to promote an amicable adjustment. no, sir, nothing of all this occurred. on the contrary, the question of impressments is made the basis of continuing the war. on this subject, a studied fairness of proposition is preserved, accompanied with systematic perseverance in measures of hostility. an armistice was proposed by them. it was refused by us. it was acceded to by the american general on the frontiers. it was rejected by the cabinet. no consideration of the false allegation on which the war in fact was founded; no consideration of the critical and extremely consequential nature to both nations of the subject of impressment; no considerations of humanity, interposed their influence. they renewed hostilities. they rushed upon canada. nothing would satisfy them but blood. the language of their conduct is that of the giant, in the legends of infancy: "fee, faw, fow, fum, i smell the blood of an englishman; dead or alive, i will have some!" can such men pretend that peace is their object? whatever may result, the perfect conviction of my mind is, that they have no such intention, and that if it comes it is contrary both to their hope and expectation. i would not judge these men severely. but it is my duty to endeavor to judge them truly; and to express fearlessly the result of that judgment, whatever it may be. my opinion results from the application of the well-known principle of judging concerning men's purposes and motives: to consider rather what men do, than what they say; and to examine their deeds in connection with predominating passions and interests; and on this basis decide. in making an estimate of the intentions of these or any other politicians, i make little or no account of pacific pretensions. there is a general reluctance at war, and desire of peace, which pervades the great mass of every people; and artful rulers could never keep any nation at war any length of time, beyond their true interests, without some sacrifice to that general love of peace which exists in civilized men. bonaparte himself will tell you that he is the most pacific creature in the world. he has already declared, by his proclamation to frenchmen, that he has gone to moscow for no other end than to cultivate peace, and counteract the emperor of russia's desire of war. in this country, where the popular sentiment has so strong an impulse on its affairs, the same obtrusive pretension must inevitably be preserved. no man or set of men ever can or will get this country at war, or continue it long in war, without keeping on hand a stout, round stock of gulling matter. fair propositions will always be made to go hand in hand with offensive acts. and when something is offered so reasonable that no man can doubt but it will be accepted, at the same moment something will be done of a nature to embarrass the project, and if not to defeat at least to render its acceptance dubious. how this has been in past time, i have shown. i will now illustrate what is doing and intended at present. as from the uniform tenor of the conduct of the american cabinet, in relation to the british government, i have no belief that their intention has been to make a solid arrangement with that nation; so, from the evidence of their disposition and intention, existing abroad and on the table, i have no belief that such is at present their purpose. i cannot possibly think otherwise, than that such is not their intention. let us take the case into common life. i have demands, mr. speaker, against you, very just in their nature, but different. some of recent, others of very old date. the former depending upon principles very clearly in my favor. the latter critical, difficult, and dubious, both in principle and settlement. in this state of things, and during your absence, i watch my opportunity, declare enmity; throw myself upon your children and servants and property, which happen to be in my neighborhood, and do them all the injury i can. while i am doing this, i receive a messenger from you, stating that the grounds of the recent injury are settled; that you comply fully with my terms. your servants and children, whom i am plundering and killing, invite me to stay my hand until you return, or until some accommodation can take place between us. but, deaf to any such suggestions, i prosecute my intention of injury to the utmost. when there is reason to expect your return, i multiply my means of injury and offence. and no sooner do i hear of your arrival, than i thrust my fist into your face, and say to you--"well, sir, here are fair propositions of settlement; come to my terms, which are very just; settle the old demand in my way, and we will be as good friends as ever." mr. speaker, what would be your conduct on such an occasion? would you be apt to look as much at the nature of the propositions, as at the temper of the assailant? if you did not at once return blow for blow, and injury for injury, would you not at least take a little time to consider? would you not tell such an assailant, that you were not to be bullied nor beaten into any concession? if you settled at all, might you not consider it your duty in some way to make him feel the consequences of his strange intemperance of passion? for myself, i have no question how a man of spirit ought to act under such circumstances. i have as little, how a great nation, like great britain, will act. now, i have no doubt, sir, that the american cabinet view this subject in the same light. they understand well, that by the declaration of war, the invasion of canada, the refusal of an armistice, and perseverance in hostilities, after the principal ground of war had been removed, they have wrought the minds of the british cabinet and people to a very high state of irritation. now is the very moment to get up some grand scheme of pacification; such as may persuade the american people of the inveterate love of our cabinet for peace, and make them acquiescent in their perseverance in hostilities. accordingly, before the end of the session, a great tub will be thrown out to the whale. probably, a little while before the spring elections, terms of very fair import will be proffered to great britain. such as, perhaps, six months ago our cabinet would not have granted, had she solicited them on her knees. such as probably, in the opinion of the people of this country, great britain ought to accept; such perhaps as in any other state of things, she would have accepted. but such as, i fear, under the irritation produced by the strange course pursued by the american cabinet, that nation will not accept. sir, i do not believe that our cabinet expect that they will be accepted. they think the present state of induced passion is sufficient to prevent arrangement. but to make assurance doubly sure, to take a bond of fate, that arrangement shall not happen, they prepare this bill. a bill, which proposes an augmentation of the army for the express purpose of conquering the canadas. a bill which, connected with the recent disposition evinced by our cabinet, in relation to those provinces, and with the avowed intent of making their subjugation the means of peace, through the fear to be inspired into great britain, is as offensive to the pride of that nation as can well be imagined; and is, in my apprehension, as sure a guarantee of continued war as could be given. on these grounds, my mind cannot force itself to any other conclusion than this, that the avowed object of this bill is the true one; that the canadas are to be invaded the next season; that the war is to be protracted: and that this is the real policy of the american cabinet. i will now reply to those invitations to "union," which have been so obtrusively urged upon us. if by this call to union is meant a union in a project for the invasion of canada, or for the invasion of east florida, or for the conquest of any foreign country whatever, either as a means of carrying on this war or for any other purpose, i answer, distinctly, i will unite with no man nor any body of men for any such purposes. i think such projects criminal in the highest degree, and ruinous to the prosperity of these states. but, if by this invitation is meant union in preparation for defence, strictly so called; union in fortifying our seaboard; union in putting our cities into a state of safety; union in raising such a military force as shall be sufficient with the local militia in the hands of the constitutional leaders, the executives of the states, to give a rational degree of security against any invasion; sufficient to defend our frontiers, sufficient to awe into silence the indian tribes within our territories; union in creating such a maritime force as shall command the seas on the american coasts, and keep open the intercourse, at least between the states: if this is meant, i have no hesitation; union on such principles you shall have from me cordially and faithfully. and this, too, sir, without any reference to the state of my opinion, in relation to the justice or necessity of this war. because i will understand such to be the condition of man, in a social compact, that he must partake of the fate of the society to which he belongs, and must submit to the privations and sacrifices its defence requires, notwithstanding these may be the result of the vices or crimes of its immediate rulers. but there is a great difference between supporting such rulers in plans of necessary self-defence, on which the safety of our altars and firesides especially depend, and supporting them in projects of foreign invasion, and encouraging them in schemes of conquest and ambition, which are not only unjust in themselves, but dreadful in their consequences; inasmuch as, let the particular project result as it may, the general effect must be, according to human view, destructive to our own domestic liberties and constitution. i speak as an individual. sir, for my single self, did i support such projects as are avowed to be the objects of this bill, i should deem myself a traitor to my country. were i even to aid them by loan, or in any other way, i should consider myself a partaker in the guilt of the purpose. but when these projects of an invasion shall be abandoned; when men yield up schemes which not only openly contemplate the raising of a great military force, but also the concentrating them at one point, and placing them in one hand; schemes obviously ruinous to the fates of a free republic--as they comprehend the means by which such have ever heretofore been destroyed; when, i say, such schemes shall be abandoned, and the wishes of the cabinet limited to mere defence and frontier and maritime protection, there will be no need of calls to union. for such objects there is not, there cannot be, but one heart and soul in this people. mr. archer said, so great was the respect which he felt for the house, so deep was the consciousness which he entertained of his inability to do justice to a cause, especially one of so much magnitude and importance, of which he might be the advocate, that he would be doing injustice to his feelings were he not to express the weight of the embarrassments which oppressed him. but the wide range which the present discussion had taken, involving considerations of great national interest, and calling forth the cruel asperities of political intolerance, seemed to leave him no alternative in the discharge of his duty, but to repel the unfounded insinuations which had flown in so copious a stream from the other side of the house. were gentlemen to confine themselves to a temperate investigation of the propriety of adopting measures either recommended by the executive, or proposed by the majority, who is there that would not listen with pleasure and satisfaction? but when the liberty of debate was prostituted in disseminating the most unfounded charges, in the indiscriminate abuse of the constituted authorities of the nation, he confessed he could not "always be a hearer, and never reply." the few observations he had to make would be without either system or arrangement, having bestowed no previous consideration on the subject, and should be confined not so much to the bill for raising an additional army, as the remarks and arguments of those gentlemen who had preceded him on the other side of the house. and here, he said, he hoped to be permitted first to notice the charge which had been confidently made by a gentleman from new york (mr. gold) against the majority of the house. he had asserted (and he seemed to dwell upon the assertion with peculiar satisfaction) that war had been declared by congress prematurely and without due preparation; that to embark in a war with a powerful nation, without a large standing army, was impolitic in the extreme. this principle, said mr. a., in the general might be true, but it had certainly no application to this country. our government was founded on the broad basis of popular opinion, liable to fluctuation upon the first appearance of any system which might be calculated to destroy the liberties of the people. a laudable jealousy of their rulers throbbed in the heart of every man in the country, who would seize the first opportunity to change an administration that would raise a standing army in time of peace, whatever might be the professed objects of such an administration. from this jealousy the natural result would be, that the men who raised the army would never declare the war which it was intended to wage. he would refer to the administration of mr. adams. an army had been then raised, or attempted to be raised, to defend the country against an anticipated french invasion. the professed object was disbelieved, and the people, apprehending an invasion of their rights, removed from power the men who had voted for the army. all our institutions were repugnant to a standing army in time of peace. anticipated invasion would seldom justify it, because it might be made a pretext for the purpose at all times, and with the most dangerous views. what had been said by the gentleman from massachusetts (mr. quincy) seemed to confirm this position, for he had expressed his fears of the army, even in a state of declared war, when that army was to be employed out of the limits of the country; and if jealousy existed at such time, the conclusion would naturally follow that it would exist to a greater degree in a time of peace. the argument then of the gentleman, if it proved any thing, proved too much, because its effect would always be to frustrate the views of the government, and prevent it from going to war to avenge even the grossest insult, or to assert even its most indisputable rights. but an appeal had been made with much confidence to the history of all europe, to bear him out in the charge he had made, and it had been said that no instance of a nation's engaging in a war without having a well-regulated and disciplined army could be adduced. this, said mr. a., will be admitted, but he presumed it was incumbent upon the gentleman to show that some analogy existed between the governments of europe and that of the united states, before his argument could have any application to the subject. there the people had no voice in the selection of their rulers. there the arbitrary will of the monarch was the law of the land, and his decrees, however oppressive or obnoxious, were enforced by the hand of power, without a murmur or complaint. there each government is surrounded by kingdoms powerful and strong, the ambition of whose rulers prompts them to seize upon every occasion to enlarge the boundaries of their dominions. for one of these powers, even in the most peaceful condition of the world, to be destitute of a powerful and permanent military force, would evince an inattention to its own security and independence, which would demonstrate the incapacity of its monarch to govern his subjects, or to preserve the integrity of his possessions. but the dissimilarity of the government and situation of the united states would show the inapplicability of the gentleman's maxim to this country. here we have no powerful neighbor whose incursions we dread. here we are happily removed, by a wide-extended ocean, from those nations who, upon a declaration of war by us, could overrun the country with a military force, or endanger its civil institutions. here we have a people proudly jealous of their liberties, who will put down constitutionally every attempt in a state of peace to raise a military establishment. to have delayed, then, the declaration of war against england, until the ranks of the army authorized to be raised had been completely filled, would have been a most certain course to have defeated the object which congress had in view. the jealousies and fears which would have been the necessary consequence of such delay, would have brought into power men of far different views; men who, if the natural conclusion to be drawn from the arguments of some of them could be admitted, would sooner submit to all the indignities we had received from great britain, than resist her. the war was therefore not declared prematurely, but was delayed to as late a period as the nature of our institutions would permit. and, if what he had said would not be sufficient to satisfy the gentleman from new york of his error, the army that was so shamefully surrendered at detroit, if it had been commanded by a man of spirit and fidelity, would long before this, by the possession which it would have given us of an important province of the enemy, have convinced him that war was not declared without preparation. but, for having said so much upon this point, some apology seemed to be necessary upon his part, and he could only say that he had been induced to do so, because, having been one of the majority who voted for war against england, the charge seemed to be an imputation against his character, which the duty every man owed to himself bound him to repel. it had been said by a gentleman from connecticut (mr. pitkin) that the nature of the war had been changed; the principal cause had been removed by the british order in council of june d, , by which her previous orders were repealed; that it was a well-ascertained fact that war would not have taken place if this intelligence had reached the united states before its declaration; and that the executive ought to have acceded to the terms proposed through admiral warren, and have terminated the contest. these were grounds which demanded some consideration, and he trusted that he would be able to show, from authentic documents, that his premises were erroneous, and that of course his conclusions did not follow. but he would now admit, for the sake of argument, (what he should hereafter prove incorrect,) that the orders in council were the principal cause of the war; he could not, for himself, see how, even then, the war ought in justice to have terminated. did it follow that minor considerations should be placed out of view or yielded up entirely? would it have been proper for the government to have entered into no stipulations for the security of american seamen? would it have been proper in them to have claimed on behalf of our citizens no indemnity for the vast amount of spoliations which have been made on the property of american merchants? unquestionably not. until these considerations, admitting them to be of minor importance, should have been satisfactorily adjusted, to have made a peace, in his opinion, would have been the height of impolicy. sir, said he, it is not sufficient that the injury should cease, but that ample compensation should be made for the commission of the wrong. this was the case every day between individuals in civil society, and why ought not the rule to apply with equal force to states, in their relation to each other? justice was its foundation, and that would operate upon the one as well as the other. these considerations alone, perhaps, ought to be deemed sufficient to show that the course the gentlemen would have taken would have been unwise. but, supposing them to have no weight, he thought it might be satisfactorily shown that, to have acceded to the terms proposed by the british government, would have been an actual abandonment of the principal cause which had induced hostilities. to have negotiated without entering into an arrangement in relation to the important interest of impressment, would unquestionably have been a relinquishment of the right which we claimed, to be exempted from its exercise. but it was said that was a secondary consideration. from whence was this conclusion drawn? were we more regardful of the property than the personal liberty of the citizen? was it taken from an impression which had gone abroad in the country? or from the unofficial conversation of the members of the house? these opinions (if the expression were allowed) he would call extra judicial, and entitled to no consideration. but to show that impressment was the principal cause, he would resort to the best evidence of which the case was susceptible. he would appeal to the archives and records of the country, which, in his opinion, would be conclusive, to show what the opinions of congress were upon that subject. and, in the first place, would call the attention of the house to the report of the committee to whom our foreign affairs were intrusted, which was made on the th of november, . after commenting on the operation of the orders in council, they say: "that they are not of that sect whose worship is at the shrine of a calculating avarice, and while they are laying before the house the just complaints of our merchants against the plunder of their ships and cargoes, they cannot refrain from presenting to the justice and humanity of their country the unhappy case of our impressed seamen. although the groans of these victims of barbarity for the loss of (what would be dearer to americans than life) their liberty; although the cries of their wives and children in the privation of protectors and parents have of late been drowned in the louder clamors at the loss of property; yet is the practice of forcing our mariners into the british navy, in violation of the rights of our flag, carried on with unabated rigor and severity. if it be our duty to encourage the fair and legitimate commerce of the country by protecting the property of the merchant, then, indeed, by as much as life and liberty are more estimable than ships and goods, so much more impressive is the duty to shield the persons of our seamen, whose hard and honest services are employed equally with those of the merchants, in advancing, under the mantle of its laws, the interests of their country." again, the same committee, in the report which they made to the house, detailing the causes which should induce the house to declare war, say, (after speaking of the evils flowing from the orders in council:) "that they will proceed to the consideration of another wrong, which has been still more severely felt. this is the impressment of our seamen, a practice which has been unceasingly maintained by great britain in the wars to which she has been a party since our revolution. that they cannot convey, in adequate terms, the deep sense which they entertain of the injustice and oppression of this proceeding. under the pretext of impressing british seamen, americans were seized in british ports, on the high seas, and in every other quarter to which the british power extends, were taken on board british men of war, and compelled to serve there as british subjects. in this mode our citizens were wantonly snatched from their own country and their families; deprived of their liberty, and doomed to an ignominious and slavish bondage; compelled to fight the battles of a foreign country, and often to perish in them. our flag has given them no protection; it has been unceasingly violated, and our vessels exposed to danger by the loss of the men taken from them. that while this practice is continued, it is impossible for the united states to consider themselves an independent nation, for every case produces a new proof of their degradation." these reports, by the adoption of the measures they recommended, were sanctioned by the congress of the united states, and may be considered as furnishing strong, if not full and complete evidence, that the legislative department of the government considered the impressment of our seamen as the principal cause which impelled them to have recourse to the last resort of injured nations. the opinion of the executive had been manifested in clear and explicit terms upon the subject, in the message of the chief magistrate of the st of june, . thus we have these concurrent proofs against the assertions of the gentleman from connecticut, (mr. pitkin.) if, then, as it appears clearly to have been, from the documents before alluded to, that impressment was the principal cause of the war, that it was an injury which no independent nation could submit to without surrendering a portion of its sovereignty, would it not be admitted, even on the ground which had been taken, that, to have terminated the war by acceding to the propositions alluded to, would have been degrading to the nation, and have manifested the incompetency of the executive to have conducted with firmness the helm of state which had been submitted to his guidance and direction? and no doubt could be entertained had such an event taken place, but we should have heard denunciations against the administration proceeding from the very quarter whence they now flow. then they would have been made with infinitely more justice, because they would have been supported by reason and by truth. we should have then found the opposition appealing to the sympathies of the people, and proclaiming that their most inestimable rights had been surrendered by government in the pacification; that although they were originally opposed to a war, when it had once been declared they would have prosecuted it until the claim had been abandoned by the british government. for, it cannot be concealed that unless, in the present contest, great britain can be compelled to relinquish her claim to the right of impressment, unless it be made the _sine qua non_ by the american government, to any arrangement of the existing differences between the two nations, our claim to exemption from the practice must be forever given up, and great britain will feel herself at liberty to continue to exercise it with ten-fold rigor and severity. mr. a. declared that, notwithstanding the clamor of french influence and french alliance, he felt no apprehensions upon that subject, as he was well convinced it was not the intention or wish of our government to engulf us in the unfathomable vortex of european warfare. one word to the gentleman from new york (mr. gold) and he had done. it had been considered by him as a most unfortunate circumstance that we should be engaged in a war with great britain when russia was struggling for her independence. the most amicable relations existed, it was true, between russia and the united states; but would the gentleman have us on that account to submit to every species of indignity from the ally of that power? he beheld with as much detestation and abhorrence the conduct of the french emperor as any man could possibly do. his ambitious progress was everywhere marked with blood. the vengeance of heaven, he trusted, would arrest him in his career to universal conquest and dominion. the present condition of russia, although her people groaned under a despotism of the most unrelenting nature, must excite the sympathy of every man in this country, because she was contending for her independence, and he would wish her complete success in the war in which she was now engaged, but that her triumph would protract the restoration of peace to his own country. mr. grundy.--mr. speaker, had this debate been confined to the bill before you, i should certainly not have troubled the house with any remarks of mine; but as the gentlemen opposed to the war in which we are engaged have selected this as a fit occasion to bring before this house and the nation a full view of all the relations which exist between this and other countries, an apology at least is furnished for a member of that committee, to whose examination these subjects have been confided, to give his ideas upon the various points suggested. this i shall endeavor to do with temper and moderation. i will now proceed to state, as accurately and as concisely as i am able, the manner in which the points in difference between the two nations ought to be considered. upon some of the subjects in controversy, for instance, that of impressment, negotiation had been tried unsuccessfully for twenty years, as i will show before i sit down, from the public records of the country; on others it had been tried for a shorter period. at the last session of congress, when every hope of obtaining justice in any other way was lost, the united states declared war, not to procure a repeal of the orders in council only, but to obtain redress for the unjust spoliations which had been committed on the property of american citizens, and to cause great britain to cease the practice of impressment. other causes of irritation existed, but these were the prominent causes of the war. it may be taken as granted, in this discussion, that those orders are revoked, notwithstanding the objectionable manner of the revocation. you are now asked to lay down the sword before you have obtained any of the objects of the war, except the abolition of these obnoxious orders. i request gentlemen to reflect, whether this is not, in point of fact, an abandonment of the other points in dispute? do you not, by ceasing to prosecute the war which is already commenced, declare, in the strongest possible terms, that you will not make war for the injuries which remain unredressed? can any man persuade himself that you will obtain that by negotiation for which you have determined you will not fight! and that, too, from a nation at all times disposed to depress this growing country? that politician must have a very imperfect knowledge of the considerations which influence all cabinets, who does not know that the strongest inducement which can be brought to operate in favor of an injured nation, is the apprehension of retaliation, or fear of war, entertained by the other party. i cannot, perhaps, establish this more clearly in any other way than by recurring to the history of a transaction which took place between the united states and great britain. immediately after the attack on the chesapeake, this government demanded reparation. the terms proposed were reasonable, and such as a nation, inclined to act justly, would promptly have acceded to. for five years, or more, did the british government refuse, or rather fail, to make that arrangement, which, at the last session, produced a satisfactory adjustment on that subject. why, sir, was justice so long delayed, and why was it at last obtained? the british minister discovered a determination in congress to submit no longer. he saw that, unless something was done, friendly relations between the two countries must immediately cease. he saw that public sentiment called so loudly for an opportunity of obtaining that justice by force which had been refused to fair argument, that he granted us that reasonable satisfaction which had been so long withheld. sir, had he not seen the approaching storm, no atonement for that wanton outrage on our national sovereignty had yet been made. if you now say that you will not prosecute the war, the enemy must view it as a decision pronounced by this government, that war shall not be waged by the american nation for the impressment of her citizens, or for depredations committed on commerce. it might as well be said, in plain, intelligible language, that the ocean is to be abandoned by the people of the united states, except so far as depends on the will of great britain. if both the property and liberty of american citizens on the ocean are subject to her disposal, you cease to possess the rights of a sovereign and independent nation. for my own part, if we have the right to claim security for the liberty and property of our citizens against that nation, of which no man dare express a doubt, i am for asserting it until the object is attained, or the ability of this nation fails; of the latter i have no fear. it is pretended that this government is not desirous of peace, and that this is a war of conquest and ambition. i beg gentlemen to refrain from making statements which they themselves do not believe. after the declaration of war, what has been the conduct of the executive? through mr. russell, our chargé des affaires at london, they have offered to conclude an armistice on terms which would remove every pretext for complaint on the part of great britain. he proposed that this country should exclude from her service british seamen. it is true that lord castlereagh urged mr. russell's want of powers, and stated that the american congress alone could make the necessary provisions on that subject. if, however, sincerity had existed with the british ministry, a temporary arrangement could have been made, by which hostilities would have been suspended until the legitimate authorities of this country could have expressed an opinion. if mr. r. had not adequate powers to conclude an armistice, the proposition made by mr. monroe to admiral warren was not liable to the same objection. in substance, both propositions were the same; to the latter, no offer of compliance has been tendered. if i have any objections to the late overtures made by the executive, it is that too great an anxiety for peace is manifested; but when the nature of our institutions is consulted, a strong propensity for domestic quiet is discovered; and, therefore, the administration should be indulged in any measure calculated to restore harmony between the two countries, provided the honor and interests of the nation are not compromitted. i ask gentlemen in opposition to lay aside party feelings, and reflect whether, if we now recede, points are not conceded to the enemy, which they would not yield if in power. they affect to be the followers of washington. i will show them what his opinions were on the subject of impressment. from them the pretended washingtonians of the present day will discover their degeneracy. yes, sir, the father of his country too well understood the value of liberty ever to consent that the most obscure individual of his country should be deprived of it by a foreign despot. so early as the year , the british nation commenced the practice of impressment, as now exercised by it. on the th day of june, in that year, the then secretary of state addressed a letter to mr. pinkney, the american minister at london, in which the practice of impressment is strongly reprobated; and let it be remembered, that although this letter was written by the secretary, it contained the sentiments of the president of the united states. in order that the house may more fully comprehend what were the sentiments of that man, whose memory we all venerate, i will read so much of the letter referred to, as relates to this subject: "the peculiar custom in england of impressing seamen on every appearance of war will occasionally expose our seamen to peculiar oppressions and vexations. it will be expedient that you take proper opportunities in the mean time of conferring with the minister on this subject, in order to form some arrangement for the protection of our seamen on those occasions. we entirely reject the mode which was the subject of a conversation between mr. morris and him; which was, that our seamen should always carry about them certificates of their citizenship. this is a condition never yet submitted to by any nation--one with which seamen would never have the precaution to comply. the casualties of their calling would expose them to the constant destruction or loss of this paper evidence; and thus the british government would be armed with legal authority to impress the whole of our seamen. the simplest rule will be, that the vessel being american, shall be evidence that the seamen on board her are such." if, at so early a period, the right of search for men was objected to by this government, how much more forcible is the objection now? we were then a young nation; we have since increased in resources by which our rights can be maintained; whilst the violation of those rights have been augmented in a greater degree. on the th of november, , the secretary of state wrote to the american minister at london a letter, in which, when speaking on the subject of impressment, the following language is used: "it is unnecessary to develop to you the inconveniences of this conduct, and the impossibility of letting it go on. i hope you will be able to make the british ministry sensible of the necessity of punishing the past and preventing the future." i know, mr. speaker, that there is danger of fatiguing the house by recurring to documents of this sort, but my apology is a good one: those to which i refer have never been printed for the information of the members of this house, nor have the public had an opportunity of inspecting them. i hope, therefore, to be indulged in pursuing the sentiments of former administrations further on a subject of so much interest. on the th of february, , mr. pickering, secretary of state, addressed the president of the united states on the subject of a proposed treaty between the two countries, upon which occasion he makes the following remark: "that he transmits mr. liston's note of the th of february, together with his project of a treaty for the reciprocal delivery of deserters; which appears to the secretary utterly inadmissible, unless it would put an end to impressment; which mr. liston seemed to imagine, while the seventh paragraph of his project expressly recognizes the right of impressing british subjects, and consequently american citizens as at present." mr. wolcott, secretary of the treasury, when giving his opinion to the president, says--"that the project of a treaty proposed by his britannic majesty for the reciprocal delivery of deserters from the land and naval service, does not sufficiently provide against the impressment of american seamen, and is therefore deemed inadmissible." mr. stoddert, who acted as secretary of the navy, at that period, when advising the president on the same subject, says--"that the secretary is clearly of opinion that it is better to have no article, and meet all consequences, than not to enumerate merchant vessels, on the high seas, among the things not to be forcibly entered in search of deserters." the letter of the present chief justice of the united states to mr. king, minister at london, dated on the th of september, , places this subject in a strong light; he says-- "the impressment of our seamen is an injury of very serious magnitude, which deeply affects the feelings and the honor of the nation. this valuable class of men is composed of natives and foreigners, who engage voluntarily in our service. no right has been asserted to impress the natives of america. yet they are impressed; they are dragged on board british ships of war, with the evidence of citizenship in their hand, and forced by violence then to serve until conclusive testimonials of their birth can be obtained. these must most generally be sought for on this side the atlantic. in the mean time acknowledged violence is practised on a free citizen of the united states by compelling him to engage and to continue in foreign service. although the lords of the admiralty uniformly direct their discharge on the production of this testimony, yet many must perish unrelieved, and all are detained a considerable time in lawless and injurious confinement. it is the duty as well as the right of a friendly nation to require that measures be taken by the british government to prevent the continued repetition of such violence by its agents. this can only be done by punishing and frowning on those who perpetrate it. the mere release of the injured, after a long course of service and of suffering, is no compensation for the past and no security for the future. it is impossible not to believe that the decisive interference of the government in this respect would prevent a practice, the continuance of which must inevitably produce discord between two nations which ought to be friends to each other." in another part of the same letter, mr. marshall observes, "the united states require positively that their seamen who are not british subjects, whether born in america or elsewhere, shall be exempt from impressment." from these documents we clearly collect what was the view which the first and second presidents of the united states had on this subject, and that of the principal officers of the government. it appears that this exemption from impressment is no new claim set up by men now in power. it is as old as the government itself, and there never has been, nor can there be, an administration in this country who dare surrender this point to any foreign power. once relinquished, we had as well abandon the ocean altogether. if the liberty of american citizens is to be subject to the will, not of the english government, but what is infinitely worse, of every petty officer that navigates a british ship, it is in vain that we boast of freedom; we do not possess it; and only let the british government understand you distinctly on this point, and you need talk no more of american commerce. it has been said, by a gentleman from north carolina, (mr. pearson,) that, if we exclude british seamen from our service by law, one of two things must happen--either a peace would be the result, or the people of this country _all_ unite in a vigorous prosecution of the war. if i have mistaken the meaning of the gentleman, i wish him to correct me at this time, and answer the question directly, if, in that event, he will support the war? [mr. pearson explained.] mr. grundy proceeded: sir, from the explanation given, it will, i fear, be as difficult to come to an understanding with that gentleman, as it is to accommodate the points in dispute with the british ministry; for, although the gentleman says he will not surrender an essential right of the country, a question might be made by him as to what were essential rights. i will, nevertheless, mr. speaker, make one more effort to elicit the opinion of the gentleman on this subject. i ask him whether he considers the impressment of american seamen "a violation of an essential right of this country?" [mr. pearson said he so considered it.] then, said mr. grundy, from the gentleman's own declaration he is bound to support us in the war, if the principle of impressment is not relinquished by great britain. i have no hesitation in saying that, in a time of peace, i am willing british seamen, not naturalized in this country, should be excluded from our service. i believe that such a regulation would inflict no injury or inconvenience on the country. whenever, therefore, a proposition to this effect is made, so as to take effect at the conclusion of the war, i shall vote for it. i consider it a direct encouragement to our own seamen, calculated to foster and cherish the enterprise and industry of that important class of our citizens. thursday, january . mr. bleecker.--mr. chairman: i have a very few, very desultory, and i fear very unimportant observations to make on the subject now before the committee. they will be few, not because the subject does not abound with various fruitful and interesting topics, but because an indisposition of some days has unfitted me for any considerable effort of memory. i was opposed to the war when it was declared, because i was confidently persuaded that the evils of which we complained were of a nature not to be remedied by war. i thought, too, sir, that by entering into war, we were plunging ourselves into evils a million fold greater than those from which we sought to be relieved. i was opposed to the war, because i thought that, notwithstanding all the decrees and orders of the belligerents affecting our neutral rights, we might enjoy a commerce more extensive and profitable than we could have in a time of european peace. the war in europe was, in fact, a blessing to this country. i was opposed to the war, because i knew that the whole of one of the great political parties in the northern and eastern, the most commercial section of the country, which was most interested in the avowed objects of the war, openly condemned it; and i believed that a great portion of the other party was secretly opposed to it. this objection was to my mind perfectly conclusive. if there had been no other reason against the war, this was enough. what, sir, go to war when that part of the country which has most of its wealth, strength, and resources, is decidedly opposed to it! go to war for commercial and maritime rights, when the people of that part of the country which is principally interested in its commerce and navigation, openly execrate war! it seemed to me that it became legislators who were disposed to exercise a paternal regard over the interests of the nation, to give up their own opinions, their prejudices and partialities, rather than go to war with a people thus divided. and permit me to say, sir, without any disparagement to the members of this house, that thousands and tens of thousands of the inhabitants of that part of the country of which i have been speaking, are as competent to understand the true interest and honor of the nation, as gentlemen who happen to be members of congress. i was opposed to the war, because i thought it might expose our happy form of government--our excellent political institutions--to a dangerous trial. i was afraid, sir, that the war might produce a pressure upon the government which it would not be able to sustain. i was opposed to the war, and this was the bitter draught, because it brought us into concert and co-operation with the great destroyer, the grand enemy of freedom and humanity throughout the world. i was opposed to the war, because i believed the state of things in europe, out of which our difficulties arose--a state of things which the united states had no power to control--was in its nature transient. rather than plunge ourselves into the vortex of european politics; rather than encounter the evils and dangers of war, i thought it would be wise and prudent to wait until "the troubled waters should subside, and the ancient landmarks of the world reappear above the flood;" with a living statesman, i thought i saw in the very cloud which blackened all our horizon, the bow which was set for a token, that the tempest would not be forever. but, sir, war was declared, and the doctrine has since been promulgated, that it is now the duty of every man to support it; that all inquiry must be hushed, and all examination of its expediency and propriety cease. so far as this doctrine inculcates obedience to the laws, it has my cordial approbation; but inasmuch as it denies the right of the citizen to examine into the causes of the war, to express and publish his opinions respecting its policy, it is an insult to the understanding of an intelligent people, and inconsistent with the character and spirit of the constitution. war is declared by law. how shall the law be repealed? how can we get rid of the war, if we may not say that it is inexpedient, impolitic, and ruinous? how abominable the doctrine is, that the declaration of war shuts the door against all inquiry, is manifest from the consideration, that it would enable a wicked administration to perpetuate its power by declaring war. again, sir, i would ask the advocates of the doctrine i am reprobating, when will it be proper to show the folly and ruinous consequences of the war? suppose the war to have continued five or ten years, and the country to be impoverished, its commerce annihilated, its resources exhausted, its best blood expended in wild and fruitless projects of conquest, the people oppressed by debts and taxes, will it then be deemed improper to expose the absurdity and mischief of continuing the war? surely, sir, it will be patriotic and laudable to alarm the people, to entreat them to put an end to that which is the cause of their calamities. and if such conduct will _then_ be proper, it must be laudable and patriotic _now_ to show them their evils and dangers, and to point them to the means of escape. but, sir, what has been the state of the country since the declaration of war? i speak again in reference to public opinion. the people of the north and east have poured out their feelings and opinions, their complaints and groans, in addresses, petitions, resolutions, and remonstrances against the war. look, sir, at the presidential election, and you see all the northern and eastern states; with the exception of vermont, arrayed against the administration. you see the people disregarding the old line of party division and distinction. yes, sir, in spite of such division and distinction, "burying their mutual animosities," their ancient prejudices, "in their common detestation" of the policy of the government, rising up in their might and strength to manifest their hostility to the course of measures it has pursued. this, mr. chairman, is a state of things which ought to arrest the attention, and engage the reflection of the national legislature, for without that section of country our strength is weakness. i know how ungracious and invidious topics of this kind are to some gentlemen. but, sir, we cannot help it that the country is made up of sections. we are legislating for such a country, and it is our business and duty to regard the circumstances, the interests, and feelings of the people of different parts of the union. we declared war for commerce; the people most interested in commerce were opposed to it. we continue the war for sailors' rights, and three-fourths of our native american seamen belong to new york and the eastern states, the people of which are sighing for peace. it ought to be remembered, too, sir, that the war itself must have the effect of driving a vast portion of our sailors out of the country into foreign service. but, mr. chairman, whatever may have been the reasons for declaring war, the question is not now what it was when war was declared. our relations with the belligerents have materially and essentially changed. so much have they changed, that i declare, without fear of contradiction, that had they been on the th of june last what they now are, we should not have gone to war. i hope no gentleman of this committee will deny this. but if any gentleman should deny it, the nation will not believe him. sir, we have received new, important, and interesting evidence of the true state of our foreign relations since the declaration of war. facts which were then unknown, and which have shed a flood of light upon the situation and policy of the united states, have since been published to the world. the repeal of the orders in council itself, by removing the principal cause of the war, has produced a most material change; for had they been repealed before the war was declared, there would have been no war; and let it be remembered, that they were repealed before the war was known in england. but this is not all to which i refer. i mean to speak of the evidence we have received respecting our relations with france; and i hope gentlemen will not be startled or offended by what i am about to say. i declare confidently and boldly _that napoleon has inveigled us into the war_. he has cajoled and deceived us. but for his arts, intrigues, and duplicity, the united states would not now have been at war with great britain. yes, sir, he has led us on step by step, until he brought us to the edge of the precipice, and plunged us into the abyss. we have been humbled and mortified. he has triumphed over our character, our honor, our rights, our independence. i do not say these things hastily, carelessly, or lightly. and i will add, that after the discovery of the deceit and duplicity which the emperor of france has practised upon us, it became the duty of this government to go back to the ground it occupied before the president's proclamation of november, , or to declare immediate war against france. a proper regard to the honor, the character, and independence of the country, demanded this of its government. sir, the proof of what i have said is plain; and it is time that it be stated here, and spread before the nation. i beg the attention of the committee to the facts on which it rests. i need not go back farther than to the law of may, , which provided that the non-intercourse act should cease, as to that belligerent which should _first repeal_ its decrees violating our neutral rights, and that it should operate on the other, which should fail so to do, within three months after the president's proclamation of the fact of such repeal. this law, and the conduct of the president under it, are the immediate cause of the war, and the present unhappy state of the country. on the th of august, , the duke de cadore wrote his famous letter to general armstrong, the american minister in paris, stating that the berlin and milan decrees would, upon certain conditions, cease on the first of november then next. on the authority of this letter, the president of the united states issued his proclamation, declaring the fact, that the french decrees were repealed. but the british government, not considering the letter of the duke de cadore sufficient evidence of their repeal, did not revoke their orders in council, and, in consequence, our non-intercourse act went into operation against great britain the february following. notwithstanding the proclamation of the president, great doubts existed in this country, whether the french decrees were in fact repealed. to remove these doubts, to confirm the proclamation, to prevent inquiry and investigation in the judicial tribunals of the country, the act of march, , was passed. yet, sir, it has ever since been denied that the decrees of berlin and milan were repealed. the public prints have teemed, and the tables of this house have been loaded with the proofs of their existence and execution. you remember, sir, an impressive argument, in many respects original, an unanswered and unanswerable argument of the honorable gentleman from virginia (mr. randolph) on this subject in this house, towards the close of the last session. but, sir, notwithstanding all this, this government persisted in declaring that the french decrees were repealed. i do not mean to discuss that stale matter. the statement i make is necessary to my present purpose. the question of their repeal was the subject of a very voluminous and long-continued correspondence between mr. foster, the british minister, and our secretary of state. the discussion, i believe, was protracted to the last moment of peace. war was declared on the th of june. some weeks afterwards, appeared in this country a decree of napoleon, issued in may last, and bearing date the th of april, . this is an extraordinary paper, and deserves some attention. i will read it: "april , . "_napoleon, emperor of the french, &c._ "on the report of our minister of foreign relations: "seeing, by a law passed d march, , the congress has ordered the execution of the provisions of the act of non-intercourse, which prohibits the vessels and merchandise of great britain, her colonies and dependencies, from entering the ports of the united states. "considering that the said law is an act of resistance to the arbitrary pretensions consecrated by; the british orders in council, and a formal refusal to adhere to a system invading the independence of neutral powers and of their flag; we have ordered, and do decree, as follows: "the decrees of berlin and milan are definitively, and to date, from st november last, considered as not existing in regard to american vessels." now, sir, did this decree exist at the time of its date? no, sir, the date is _false_. if the decree existed in april, , why was it not communicated to this nation, the only one interested in the subject? why was it not communicated to mr. russell, who so strongly urged upon the french government the necessity of furnishing some evidence of the repeal of the decrees. for the purpose of communicating some satisfactory information on that subject to this country, he detained the john adams in france, in _july_, . you will remember napoleon's decree is dated in _april_. permit me here to read a passage of mr. russell's letter to mr. monroe, dated the th of july, . "on the th of june, mr. hamilton, of the john adams, reached paris, and informed me that this vessel had arrived at cherbourg. unwilling to close my despatches by her, without being able to communicate something of a more definite and satisfactory character than any thing which had hitherto transpired, i immediately called at the office of foreign relations, but, the minister being at st. cloud, i was obliged to postpone the interview which i sought until the tuesday following. at this interview, i stated to him the arrival of the frigate, and my solicitude to transmit by her to the united states some _act_ of this government, justifying the expectation with which the important law which she had brought hither had, undoubtedly, been passed." after mr. russell had left paris, he wrote from england to mr. barlow, who succeeded him, "for additional proofs of the removal of the decrees." mr. barlow seems to be very anxious "to get the treaty through, carrying an unequivocal stipulation, that shall lay that question to rest." but it was all in vain; no authentic evidence of the repeal was furnished. this decree did not exist; and why was it not issued? why was the evidence of the repeal of the decrees withheld? the answer is obvious. _the united states were not yet committed to go to war with great britain._ napoleon knew very well that when _proper_ evidence of the repeal of his decrees was furnished, the english orders in council would be repealed, and the united states would not go to war with great britain. for, sir, he knew very well, and we know very well, that for the subject of impressments alone, this country would not go to war. it cannot be denied, that for this cause we should not have declared war. this government has never been disposed to go to war on that ground alone. the present president of the united states made an arrangement with mr. erskine, which gladdened the heart of every man in the nation, without any provision on that subject, without any mention of it; and there was not a murmur in the country, on account of its omission. mr. pinkney, too, as stated by the gentleman from georgia, (mr. troup,) yesterday, again and again, offered to accommodate with england, on the rescinding of the orders in council, without any reference to impressments. sir, this decree itself is an insult to this government. it is issued expressly, because we had taken our stand against england; it is declared to be issued in consequence of our act of march, , when, in fact, the president's proclamation and the act of march were founded on the repeal of the decrees. to show the correctness of my remarks on this part of the subject; to show that napoleon has triumphed over our honor and character, i beg leave to call the attention of the committee to mr. russell's letter to mr. monroe, dated the th of june, . his language does credit to his understanding and feelings: "to have waited for the receipt of the proclamation, in order to make use of it for the liberation of the new orleans packet, appeared to me a preposterous and unworthy course of proceeding, and to be nothing better than absurdly and _basely_ employing the declaration of the president, that the berlin and milan decrees _had been_ revoked, as the means of obtaining their _revocation_. i believed it became me to take higher ground, and without confining myself to the mode best calculated to recover the property, to pursue that which the _dignity_ of the american government required. "a crisis, in my opinion, presented itself, which, was to decide whether the french edicts were retracted as a preliminary to the execution of our law; or whether, by the non-performance of one party, and the prompt performance of the other, the order in which these measures ought to stand was to be reversed, and the american government shuffled into the lead, where _national honor_ and the law required it to follow." it would have been _base_ to have employed the president's proclamation, that the berlin and milan decrees had been revoked as the means of obtaining their revocation. but what, sir, is the price we have at length paid for the repeal? the president's proclamation was not enough; the act of march added to it was not enough; we could not procure the revocation till we went to war. for, sir, the emperor would not issue this decree till he knew that we were pledged and committed to go to war with great britain. how he knew this, sir, it is not for me to say. we all know, however, that he had all the acts of this government to satisfy him of the course we were pursuing--the step we were about to take. he had the president's message, the report of the committee on foreign relations, the war speeches of the members of this house, the laws for raising armies, and the embargo. in the month of may, then, when the policy of this country in relation to great britain was settled, he issued his decree, just in such time, too, sir, that it could not reach this country till we had plunged into the war. and well, in such a state, might he repeal his decrees, which, by the war itself, would be superseded--would become a nullity. thus, sir, believing the french decrees to be repealed, we departed from our neutral stand by enforcing the non-intercourse law against great britain. we have in vain waited for such evidence of their repeal as would have induced great britain to rescind her orders in council--the great cause of the war. their revocation depended upon the repeal of the french decrees; and had they been revoked, there would have been no war between the united states and great britain. the decree, declaring the edicts of france to be revoked, is at length issued, when the emperor knows it is too late to prevent the war. the decree is communicated to the english government, the orders in council are revoked on the ground of the repeal of the french decrees, but the united states have declared war. how, sir, can i make this matter plainer? our whole course against great britain has proceeded from the belief of the repeal of the berlin and milan decrees; but that evidence of their repeal, which would have stopped our course, by means of which the orders in council would have been revoked, and the war would have been avoided, is withheld till the emperor knows that war is inevitable. thus, sir, have we been duped, deceived, and inveigled. i repeat it, sir, had we, on the th june, understood our foreign relations as we now understand them, we should not have declared war. and would it not have been just and magnanimous in this government, when all doubt was removed on the subject of the french decrees, to have acknowledged its error? did not the honor, the character, the independence of the country require of us to go back to our original neutral ground? i rose principally for the purpose of presenting this view of the arts and deceit of the french emperor to the committee. i regret that i have not done it more fully and clearly; and i hope that some gentleman more competent to a proper examination of the subject will yet take it up before we get through this discussion. mr. tallmadge said he felt a peculiar embarrassment in rising to offer to the consideration of the committee some of his own reflections on the important subject now under debate, from a twofold consideration. in the first place, the magnitude of the question might claim the aid of more exalted talents than he pretended to possess, and, therefore, to do it justice, he feared, would not be in his power. for, said mr. t., in the extensive range of debate which has been permitted by the chair, the whole field of our foreign relations has been open to examination, and the policy of our own government in relation to great britain has been deemed fairly within the range of discussion. in the second place, the gentlemen who had preceded have occupied the ground so ably, and discussed the subject so extensively, that it was somewhat difficult to present arguments entirely novel to arrest the attention of the committee. having a belief, however, that there were some important considerations, in relation to the bill now under debate, which had not yet been brought into view, he begged the attention of the committee while he endeavored to lay before them the views which he had taken of the subject, and which constrained him most decidedly to oppose the passage of the bill. before i enter upon the merits of the subject, said mr. t., i take occasion to express my hearty assent to declarations made by honorable gentlemen that this is no time to indulge the bickerings of party; and that it is greatly to be desired that all distinctions of this sort were entirely laid aside and forgotten. sir, i should consider it the most auspicious event of my life if i could see every gentleman on this floor determined to take and maintain the true old american ground occupied by the patriots of ' . although it may be painful to the feelings of an honorable mind to be assailed with odious appellations, and charged with duplicity and falsehood, yet the mind which has virtue for its basis, a conscious integrity for its support, and firmness sufficient to enable the man to do his duty, may hope to pass unhurt by such malicious darts. standing, as i do, in the highly-responsible situation of one of the legislators of this extensive country, i hope to have stability and integrity sufficient to enable me to discharge my duty to my constituents. if, after having passed through the revolutionary war, and having never changed my political creed to the present day, an odious epithet could induce me to alter my course, i should be unworthy the confidence of my country. but whence, mr. chairman, proceeds this system of slander and abuse? from the foul presses of our country. to whom are some of the fairest characters which have ever adorned this or any other country indebted for the odious epithets of monarchists, foreign agents, tories, and the like? to your imported patriots, who, weary of the dull pursuits of industry on their native soil, or escaping from the justice of the laws of their own country, have fled to this happy land to instruct its inhabitants in the true principles of liberty and equality. to this set of newly-fledged politicians, and men of a similar stamp, is this once happy country indebted for one-half the miseries and much of the disgrace which it suffers. i have been led into this digression in consequence of remarks which have fallen from the other side of the house, but will now return to my subject. a gentleman from new york, (mr. stow,) who addressed you early in this debate, told us that he reprobated the war, and had no confidence in the administration to conduct it to a successful issue, but should vote for the bill to enable them to carry it on. this is strange political logic to my understanding. while i subscribe fully to his premises, the reasonings of my mind bring me to a very different result. because i deprecate this war as pregnant with great evils, if not ruin to my country, i will, therefore, take all constitutional measures to bring it to a speedy and honorable close; and because i have no confidence in the executive department of our government, nor in the subordinate agents who have been appointed to vote for this bill, which, if adopted, will enlist still greater evils on this devoted country. in presenting the subject to this honorable committee, in its most appropriate form, it may be proper to examine into the prominent causes of our dispute, which has terminated in open war with great britain. these i take to be three, viz: . the orders in council. . impressment of our seamen. . the attack upon the chesapeake. that we may narrow the point in controversy as much as possible, i remark that ample and satisfactory atonement having been made for the violation of our rights by the attack on the chesapeake, one cause of disquietude and a prominent one too, has been finally removed. it has indeed been frequently remarked on this floor, that the satisfaction offered for the unauthorized attack on the frigate chesapeake was long delayed, and very reluctantly offered. however painful it may be to censure the conduct of our own government, yet a sense of justice obliges me to say, that to every overture made by great britain to accommodate this unpleasant affair, our administration attached some exceptionable condition which closed the door to an amicable adjustment. the committee cannot have forgotten the early disavowal of this wanton aggression on the honor of our flag by the british government, and the tender of satisfaction which was made, but failed because our minister was instructed to couple with this complaint the subject of impressment; nor can they have forgotten how indignant the ministry and nation were when the president assumed the right of judging what would best comport with the honor of their king. few, i believe, who read the offensive remark, expect a different result from that which ensued. and while i am upon this subject i take occasion to remark, that in all our attempts to negotiate with the british government there seems to have been some untoward circumstance, some unfortunate condition, either accidentally or intentionally, attached to the question at issue, which has defeated the negotiation. it would be within the scope of my present plan to take a particular review of the british orders in council, as well as the subject of impressments. but inasmuch as the documents relating to these two subjects have been laid on every gentleman's table; and more especially when i reflect that both topics have been very ably discussed by some gentlemen who have preceded me, and especially by the gentleman who has just sat down, (mr. bleecker,) i shall content myself with taking but a brief review of these prominent, and i may add, the only remaining causes for the present war. as to the orders in council, it ought not to be forgotten, that during several lengthy discussions to obtain their repeal, as well by our ministers in london, as at this place, they have been considered as the prominent point in dispute. so, again, as to the origin of our restrictive system; it cannot be forgotten that the friends and abettors of those measures uniformly professed that they were adopted as retaliatory for the orders in council. from the first partial non-importation act, which passed on the eighteenth of april, , down to the law of the second of march, , the object has been, on the very face of the law, to procure a repeal of the orders in council, and of the berlin and milan decrees. if any doubt should remain on the mind of any member of this committee as to this fact, i beg him to turn his eye to the restrictive code, and i presume he will find the evidence to be abundant and complete. in this system of anti-commercial regulations, i find the origin and progress of our present political calamities. and here, mr. chairman, i shall readily admit, that we had grievances and complaints, great and heavy, against both of the belligerents; nor have i the least inclination to palliate or excuse them. my object is to show, what i have uniformly expressed on this floor, that our system of non-importation, non-intercourse, and embargo, have been directed against the orders in council, as to great britain, and nothing else; and finally, have brought this country into a ruinous war. is there a man within these walls, who does not now believe (as was fully predicted when the law passed) that the conditions held out to the two great belligerents, to induce them to repeal their obnoxious edicts, violating the neutral commerce of the united states, placed the execution of our law in the hands of a foreign government? is there a man of ordinary capacity in the united states, having the means of information, who now believes that the berlin and milan decrees were repealed on the st of november, , according to the proclamation of the president of the united states, solemnly announcing that fact; and that they thenceforward ceased to violate our neutral commerce? does not candor constrain all to confess that, long after the pretended repeal of the aforesaid decrees, our commerce was harassed in every sea where french cruisers could reach it? need i point you to the piratical seizures and burning of american property in the baltic, the mediterranean and the atlantic seas, by the privateers and fleets of the french empire; subsequent to this pretended repeal, and sanctioned expressly by its authority? if all other evidence should be deemed insufficient, i inquire whether the french emperor himself has not sufficiently humbled this country (if indeed our cup of humiliation had not been full before) by his own formal antedated repeal of his berlin and milan decrees, long subsequent to the time imposed on the president by the duke of cadore? it cannot have escaped the attention of the committee, or of the nation, that napoleon's decree, respecting the berlin and milan decrees, bears date the th of april, , and is explicitly bottomed on the law of congress passed march , ; the sole object of which law was to confirm the proclamation of the president which had then been issued more than four months, and the legality of which had become very questionable. this decree may be found among the documents accompanying the president's message of november th, , and on the forty-sixth page of those printed papers. if further evidence should be needed to prove the abominable fraud of this transaction, it may be found in the correspondence of our minister at paris, in the summer of , wherein he remarks, that he had repeatedly demanded evidence of the repeal of the berlin and milan decrees, but none could be obtained. and yet, forsooth, we are now furnished with a decree dated in april preceding, but not issued until we are so entangled in french toils, that war with great britain was inevitable. if this fact alone had been understood, i put it to the candor of this honorable committee to say, whether they would have consented to the declaration of war against great britain at the time and for the reasons which were given? i say, without fear of contradiction, that they would not. if my premises are true, and the inference undisputed, since the government has been grossly deceived and drawn into this war, for reasons and causes which did not then exist, most assuredly it becomes our duty as well as interest to relieve the country from its pressure as soon as possible. in addition to all this, it is a singular fact in the history and progress of this war, that in five days after its declaration, (viz. on the d of june, ,) and as soon as the aforesaid decree of the french emperor was made known to the british ministry by mr. russell, an order in council was issued, repealing the former obnoxious orders, which had been ostensively the most prominent cause of the war; and yet the president has never issued his proclamation announcing that fact, as by the terms of the law of march d, , he was expressly bound to do. on this failure of the president to do what the law enjoined on him to perform, as well as having issued his proclamation of november, , without possessing the facts required by the law to support him, i make no comment. the account is still unsettled between him and this injured country. the orders in council having thus been revoked, the continuance of the war seems to rest upon the impressment of our seamen alone. give me leave then to inquire into the grounds of this practice, as claimed by great britain. is it not bottomed on the ancient doctrine of perpetual allegiance--or in other words, that the native-born subject can never so expatriate, as that the mother country may not claim his service in time of war? is this a novel doctrine, either as to time, or the nation who now attempts to enforce it? i venture to say that great britain has practised upon this principle ever since she has been a nation; and it is farther manifest that france, and all the maritime powers of europe, have maintained the same doctrine. nay, sir, we maintain the same doctrine in our own country; in proof of which, witness the president's proclamation at the commencement of this war; and notice also the recent case of clark the spy, who was condemned to suffer death by a court martial, and was pardoned by the president on the ground of his owing allegiance to the united states, although residing in an enemy's territory, and having been naturalized or sworn allegiance to the king of great britain. hence it would seem, that the principle set up was not novel nor singular. but what is the principle in contest between the two governments? great britain claims the right to visit neutral merchant ships on the high seas; and if she finds any of her natural born subjects, to take them into her service. the government of the united states denies to her this right, and asserts, that a foreigner naturalized in this country, is absolved from all allegiance to the parent state. the practice of great britain under her principle, has undoubtedly subjected some of our native citizens to capture and involuntary service, from causes which i need not here repeat. in all such cases, i take it to be admitted on all hands, that she sets up no claim, and therefore every abuse of this sort is capable of remedy. but on this head i have no hesitation in expressing my unqualified belief, founded on documents which have been laid on our tables, that the list of such impressed seamen is greatly exaggerated. out of the number six thousand two hundred and fifty-seven of american citizens said to have been impressed, and forming a standing head piece to the list of our grievances, i very much question if five hundred native americans can be found among them all. the documents lately furnished by the secretary of state, if carefully examined, will serve very much to substantiate this fact. many names are there returned who have only forwarded their claims to our consul at london, and who, very probably, never set foot on american ground. others again are continued on the list who have been discharged years ago, and others who have voluntarily engaged in her service. the question then at issue, i take to be this--shall the war with great britain be continued to oblige her to relinquish the practice of taking from our merchantmen her native british sailors? if we could obtain the principle by continuing the war, i think it can be demonstrated, that it would be injurious to the american seamen to have it so established, inasmuch as it would, by increasing the number of our seamen, necessarily diminish their wages. but, circumstanced as great britain is, contending for her existence against the most formidable power on earth, and resting her last hopes upon her navy, i presume she will never relinquish the principle. the inquiry has been made, with some solicitude, what will you do with _naturalized foreigners_? i answer, treat them hospitably, and extend the arm of protection and all the blessings of government to them while they continue within your territorial jurisdiction; but if they leave your territory, and choose to go upon the great highway of nations, the risk and the choice are their own, as will be the peril. put the case fairly to the yeomanry of our country, and let them understand the subject, that this war is to be carried on for the purpose of protecting foreigners while sailing on the high seas, and i very much incline to the opinion, that they would, dismiss the authors of this war from further service, or oblige them soon to bring it to a close. sir, i will not consent to waste one drop of pure american blood, nor to expend a single dollar, to protect, on the high seas, all the vagabonds of europe. valuable as may have been the acquisition in obtaining many great and good men as emigrants from europe, still i must maintain the opinion, that all the blessings of liberty and domestic government, which are secured to them in common with our native citizens, ought to be an ample compensation. i know it is no easy matter to draw the precise line where protection shall cease; but in a question of such moment as peace or war, the prosperity and happiness, perhaps the misery and ruin of our country, i cannot hesitate as to the course proper to be pursued. with respect to protections, they have become so much a matter of bargain and sale, that having been counterfeited and sold in almost every port in great britain, as well as in america, they have long since ceased to answer any valuable purpose. it has been a fact long since well established, that a foreigner, who could scarcely speak our language, could procure a protection in great britain purporting to be evidence of his _american citizenship_. this then may account for the light and contemptuous treatment given to this species of evidence by the officers of the british navy. friday, january . _mounted rangers._ mr. jennings said that it must be recollected by the house, that the act which was passed at the last session of congress, for the raising certain companies of rangers for the protection of the frontiers, had expired. those rangers were raised under the apprehension of attacks from the savages; and these apprehensions have unfortunately been realized far beyond the general anticipation. when those companies were raised, mr. speaker, we expected long since to have taken possession of the british province of upper canada, thereby to have intercepted the connection and communication between the british and the northwestern indians. it will therefore readily be perceived, that in consequence of our disappointed expectations in that quarter, the northwestern frontier will be more exposed to the savage knife and tomahawk, at the opening of the approaching spring, than they have been heretofore. this description of force, if again organized, and stationed at suitable points without the frontier settlements, will render it more efficient, and in a better situation to range the woods and prevent the unapprised attack of the savage upon the helpless women and children. if we had to expect invasion from a civilized foe, our situation would not excite so much terror, but the savage character draws no distinction between the helpless infant and the prisoner of war. under such circumstances, no calculation of expenditure ought to have any weight against a measure calculated to afford a necessary and proper protection to such an important and extensive frontier of the united states. the secrecy and facility with which the savages can assail that frontier, renders it improper that we should depend entirely for protection upon the volunteers and militia of an adjoining state. they carry with them their prejudices, and too often forget the sacred rights of private property. this fact has unfortunately been verified by a petition which i presented yesterday from the territory which i represent. but i cannot believe that such is the character of the citizens of kentucky, although i do believe that the cause of that plundering, so far as it did take place in the western part of the territory of indiana, by a portion of the kentucky volunteers, may be found in the unhallowed exertions of local political purposes, to impress on the minds of at least some of those volunteers, that they were to defend british agents, british partisans, and persons having connection with the savages. i shall now (said mr. j.) present to the house the following resolutions which i have prepared, as well for the purpose of offering a bounty in lands to those who would volunteer their services as rangers for the protection of the northwestern frontier, as for the purpose of inquiring into the expediency of paying the militia and volunteers who have already rendered important services in shielding the helpless from savage cruelty:-- "_resolved_, that the committee on military affairs be, and they are hereby, directed to inquire into the expediency of authorizing the president of the united states to raise at least twelve companies of rangers, by the acceptance of volunteers or enlistment for one year, to be mounted or otherwise, as the service may require. "_resolved_, that the said committee inquire into the expediency of allowing a bounty in land to those who shall tender their services as rangers, and be accepted by the president of the united states. "_resolved_, that the said committee inquire likewise into the expediency of making provision for compensating the militia or volunteers, who may have been called out, or whose services may have been accepted by the executives of either of the territories of the united states." the resolutions were ordered to lie on the table. _additional military force._ the house again resolved itself into a committee of the whole, on the bill from the senate authorizing the raising of twenty thousand men, for one year, if in the opinion of the president of the united states the public service shall require it. mr. wheaton said: mr. speaker, every intelligent man, whose age has given him an opportunity of combining experience with observation, must know that there are times when, on certain questions relating to the great interests of the nation, the sober remonstrances of truth and reason are of little or no avail against the misguided impetuosity of public prejudice. to such a crisis, if we have not already arrived, it is greatly to be feared that we are fast approaching. to float along the current of popular opinion requires very little exertion; but the man that is placed in a situation where the public safety demands that he should stem the torrent and buffet the storm, cannot but reflect, with peculiar sensibility, on the very unequal task he has to perform. the bill, now under consideration, has opened a field of discussion on the general policy of the war, in which its advocates and opponents seem to have given full range to their imaginations; and the arguments, on both sides, have apparently been attended with various success. there can, however, be little doubt on which side the victory will finally be declared. it is well known that the majority are determined, and the bill will pass. i had therefore resolved to take no part in the dispute, but to content myself with giving a simple vote. but, reflecting that i am called upon to act on a subject by me deemed important, not only for myself, but for the good of the people whom i have the honor to represent, who will be equally interested in the result, i have felt myself impelled, both by duty and inclination, to state some of the reasons on which that vote will be grounded. the bill proposes giving authority to the president of the united states to raise twenty thousand regular troops, in addition to the thirty-five thousand already authorized by law. this may be right or wrong, proper or improper, according to times and circumstances, and the objects which the measure is contemplated to effect. were the country invaded by a foreign foe, and a foe so powerful as to make this additional number of troops necessary for its defence, i should say it were right and proper to raise them, whatever expense it might be to the nation. but if, as the advocates of the bill profess, these men are to be enlisted, and, together with those heretofore authorized, are to form a powerful army for the purpose of foreign conquest, i have no hesitation in giving it, as my opinion, that it is improper and wrong, or, at least, as the president has told us respecting the french decree repealing those of berlin and milan, that "the proceeding is rendered, by the time and manner of it, liable to many objections." objections, it is apprehended, may arise from want of powers given to congress by the constitution, either expressed or implied, to do this thing, with its professed object in view--that is, foreign conquest. and if these are unavailing, common reason and common sense furnish objections, sufficiently strong, to the expediency of our undertaking such enterprises. objections, for want of sufficient powers given by the constitution, may be considered as novel; but, if sound, they should nevertheless prevail. the war itself is novel, this being the first of the kind that ever we have undertaken since that instrument was formed, or since we became an independent nation. if the constitution gives congress any power to carry on foreign wars, those powers must be collected from expressions it contains, or from some clear and necessary implication from something that is therein expressed. it will be very readily admitted, that our national government is a government of a very simple construction, and that it possesses very limited powers; being established by compact, not by conquest, it has not all the powers incident to the sovereignties of other countries; not produced _by_ conquest, it was not made _for_ conquest. "the enumeration of certain rights in the constitution shall not be construed to deny or disparage others retained by the people; and the powers not delegated to the united states by the constitution, nor prohibited by it to the states, are reserved to the states, respectively, or to the people." the framers of this constitution took particular care, not only to define the powers they intended to give, but the objects to which that power should be applied, and therefore, but for those defined objects, congress have no powers at all. the objects are first pointed out clearly and plainly, and then the powers necessary to their attainment. the people of this country, after having effected the revolution and established their independence, considering their great transmarine distance from the nations of the old world, and all their jarring and rival interests, flattered themselves with the expectation of long peace. unapprehensive of being attacked at home, they had no idea of making war for the purpose of conquest abroad. "peace and friendship with all nations, entangling alliances with none," was their motto, and the same sentiment has been sanctioned by a man, whom the advocates of this war have never ceased to admire. an aversion to standing armies was among the causes that induced the declaration of independence; without standing armies, it was then believed, and we now know full well, foreign wars cannot be carried on. foreign wars did not, therefore, come within the scope of that policy that dictated the constitution. i am not insensible, that, by the constitution, a power is given to congress to declare war, (not to make it,) but their power is not to be exercised but in the spirit of that instrument, and for the attainment of some or all of the objects for which it was framed. and what are those objects? why, and for what was the constitution made? its authors have told us. it was for "the forming of a more perfect union, establishing justice, insuring domestic tranquillity, providing for the common defence, promoting the general welfare, and securing the blessings of liberty to ourselves and our posterity," and all these benefits for the people that then did, or who thereafter should, belong to, or reside in the territory then embraced by the united states, and none other. the constitution was not made for any other, nor can it give jurisdiction over any other. if all or any of these objects are endangered, and it can be made to appear that raising the additional army proposed by this bill be necessary to the preservation and security of them, and can afford a rational prospect of producing such an effect, then my objections to the measure, so far as they arise from the apprehension of the want of constitutional authority, will be obviated. but here, permit me to ask, whether adding twenty thousand new troops to our present regular army, will be likely to have the effect of forming a more perfect union among the people of these states, or whether the little progress already made in the war has not produced fearful apprehensions of a sad reverse? if justice be not already established in our country, can there be any probability that a more formidable army will effect an object so desirable? no; for it is a well-known maxim, as true now as in those ancient times when it was written, that "_inter arma leges silent_." so romantic an idea, as being able to establish justice through the world, could not have entered the heads of those that framed the constitution. much has been said respecting the laws of nations; but they are now nowhere to be found, but in those books that treat on that subject; they were formed by the nations of the civilized world, and evidenced by the treaties, compacts, and agreements, entered into by them; but the governments of europe, in their struggle for power and dominion, seem to have disregarded or broken them down; and they being the majority in number, and superior in strength, it is not at present in our power to build up and enforce them. the unavoidable state of the world must be submitted to, until human nature shall, by its great author, be corrected. nor can we, from what we have experienced, promise ourselves, from foreign war, an increase of tranquillity at home. but we are authorized, and are bound to provide for our common defence, and to raise armies, as well of regulars as militia, for that purpose, whenever the unfortunate situation of our country may render such a measure necessary; and our raising of a regular army could never have been contemplated by the framers of the constitution for any other purpose, and therefore give no authority so to do, and, as if conscious that this were the case, the committee that penned the act passed by congress in june last, declaring war, made use of a form altogether unusual in other countries on similar occasions. the act declares that "war exists between the united kingdoms of great britain and ireland, and the united states;" going upon the idea, that hostilities had then been actually commenced against us by that government, and our country invaded by a british armed force. such a doctrine would have been very proper, and it might have been proper to raise armies in pursuance of it, had it been true. but such was not the fact. no hostile invasion of the country, by the british government, had then been made, attempted or threatened. but some may say, and do say, that, if it were not a point then, it is now, and that, therefore, if we had no right to raise regular armies then, it being a time of peace, we may feel ourselves fully authorized now, since war has been declared, to raise new ones, or make additions to the old. this, indeed, would be contrary to a principle universally received and adopted, that no one should be permitted to take the advantage of his own wrong. i know it is a doctrine, that the ruling party in this country, both in and out of this house, are every day zealously endeavoring to inculcate, that even admitting the war to have been wrong, at its commencement, it has now become the constitutional duty of its original opponents to afford every aid and encouragement to its prosecution. but this is a doctrine that i think no one can yield his assent to, till he is made to believe that two lines, constantly diverging, may finally meet in the same point. if our country has been in any degree invaded, and such invasion be in consequence of our having first invaded the territories of the invaders, it is proper for us, by withdrawing the cause, to put an end to the effect. the last, and not the least object of the powers given by the constitution, is "to secure the blessings of liberty to ourselves and our posterity." many arguments cannot be necessary to show the tendency of foreign wars to destroy liberty. i believe history does not furnish an instance of any people long free, after engaging in the mad projects of foreign conquest. while rome was content with her ancient boundaries, her inhabitants were blessed with freedom; but, afterwards, jealousies, tumults, insurrections, and seditions, and those two great plagues and scourges of mankind--anarchy and tyranny--following in the train, destroyed every vestige of liberty among that people. is there any liberty left among the people of france, or of those countries that france has conquered? fortunate for them, if they are less enlightened than we are; for, in such case, though slaves, they may not be quite so miserable ones. "the very age and body of our constitution, its form and pressure," indicative of the genius and temper of the people that adopted it, are all opposed to the prosecution of wars for conquest. such enterprises must not be undertaken, or the constitution must be destroyed. gentlemen seem already inclined to attribute the disgrace and defeats that have hitherto marked our progress in this war, rather to the form and constitution of our government, than to the weakness and folly of its administration. the french emperor has been extolled, and his mode of conducting wars has been more than intimated as being worth our imitation. if, in making foreign conquests, we would have his success, we must make use of his means, and then we may bid adieu to our former happy institutions, our laws, and our liberty. on this ground, therefore, i am opposed to the progress of this war. but if i had not a scruple left, as to the authority given to congress by the constitution to make this war for conquest, (and perhaps i ought not to have,) my sense of its inexpediency, while i shall have any regard for the welfare and prosperity of my country, will forever forbid my giving it the smallest aid. mr. h. clay (speaker) said he was gratified yesterday by the recommitment of this bill to a committee of the whole house, from two considerations: one, since it afforded to him a slight relaxation from a most fatiguing situation; and the other, because it furnished him with an opportunity of presenting to the committee his sentiments upon the important topics which had been mingled in the debate. he regretted, however, the necessity under which the chairman had been placed of putting the question,[ ] precluded him from an opportunity he had wished to have enjoyed of rendering more acceptable to the committee any thing he might have to offer on the interesting points it was his duty to touch. unprepared, however, as he was to speak on this day, of which he was more sensible from the ill state of his health, he would solicit the attention of the committee for a few moments. i was a little astonished, i confess, said mr. c., when i found this bill permitted to pass silently through the committee of the whole, and that, not until the moment when the question was about to be put for its third reading, was it selected as that subject on which gentlemen in the opposition chose to lay before the house their views of the interesting attitude in which the nation stands. it did appear to me that the loan bill, which will soon come before us, would have afforded a much more proper occasion, it being more essential, as providing the ways and means for the prosecution of the war. but the gentlemen had the right of selection, and having exercised it, no matter how improperly, i am gratified, whatever i may think of the character of some part of the debate, at the latitude in which for once they have indulged. i claim only, in return, of gentlemen on the other side of the house, and of the committee, a like indulgence in expressing, with the same unrestrained freedom, my sentiments. perhaps in the course of the remarks which i may feel myself called upon to make, said he, gentlemen may apprehend that they assume too harsh an aspect; i have only now to say that i shall speak of parties, measures, and things, as they strike my moral sense, protesting against the imputation of any intention on my part to wound the feelings of any _gentleman_. considering the situation in which this country is now placed, in a state of actual war with one of the most powerful nations on the earth, it may not be useless to take a view of the past, of various parties which have at different times appeared in this country, and to attend to the manner by which we have been driven from a peaceful posture. such an inquiry may assist in guiding us to that result--an honorable peace--which must be the sincere desire of every friend to america. the course of that opposition, by which the administration of the government had been unremittingly impeded for the last twelve years, was singular, and, i believe, unexampled in the history of any country. it has been alike the duty and the interest of the administration to preserve peace. their duty, because it is necessary to the growth of an infant people, their genius and their habits. their interest, because a change of the condition of the nation brings along with it a danger of the loss of the affections of the people. the administration has not been forgetful of these solemn obligations. no art has been left unessayed; no experiment, promising a favorable result, left untried to maintain the peaceful relations of the country. when, some six or seven years ago, the affairs of the nation assumed a threatening aspect, a partial non-importation was adopted. as they grew more alarming, an embargo was imposed. it would have attained its purpose, but it was sacrificed upon the altar of conciliation. vain and fruitless attempt to propitiate! then came a law of non-intercourse, and a general non-importation followed in the train. in the mean time, any indications of a return to the public law and the path of justice, on the part of either belligerent, are seized with avidity by the administration--the arrangement with mr. erskine is concluded. it is first applauded, and then censured by the opposition. no matter with what sincerity the administration cultivates peace, the opposition will insist that it alone is culpable for any breach between the two countries. because the president thought proper, in accepting the proffered reparation for the attack on a national vessel, to intimate that it would have better comported with the justice of the king (and who does not think so?) to punish the offending officer, the opposition, entering into the royal feelings, sees in that imaginary insult abundant cause for rejecting mr. erskine's arrangement. on another occasion, you cannot have forgotten the hypercritical ingenuity which they displayed to divest mr. jackson's correspondence of a premeditated insult to this country. if gentlemen would only reserve for their own government half the sensibility which is indulged for that of great britain, they would find much less to condemn. restriction after restriction has been tried; negotiation has been resorted to, until longer to have negotiated would have been disgraceful. whilst these peaceful experiments are undergoing a trial, what is the conduct of the opposition? they are the champions of war; the proud, the spirited, the sole repository of the nation's honor; the exclusive men of vigor and energy. the administration, on the contrary, is weak, feeble, and pusillanimous--"incapable of being kicked into a war." the maxim, "not a cent for tribute, millions for defence," is loudly proclaimed. is the administration for negotiation? the opposition is tired, sick, disgusted with negotiation. they want to draw the sword and avenge the nation's wrongs. when, at length, foreign nations, perhaps, emboldened by the very opposition here made, refused to listen to the amicable appeals made, and repeated and reiterated by the administration, to their justice and to their interests; when, in fact, war with one of them became identified with our independence and our sovereignty, and it was no longer possible to abstain from it, behold the opposition become the friends of peace and of commerce. they tell you of the calamities of war; its tragical events; the squandering away of your resources; the waste of the public treasure, and the spilling of innocent blood. they tell you that honor is an illusion! now we see them exhibiting the terrific forms of the roaring king of the forest. now the meekness and humility of the lamb! they are for war, and no restrictions, when the administration is for peace; they are for peace and restrictions, when the administration is for war. you find them, sir, tacking with every gale, displaying the colors of every party, and of all nations, steady only in one unalterable purpose: to steer, if possible, into the haven of power. during all this time the parasites of opposition do not fail by cunning sarcasm or sly inuendo to throw out the idea of french influence, which is known to be false; which ought to be met in one manner only, and that is, by the lie direct. the administration of this country devoted to foreign influence! the administration of this country subservient to france! great god! how is it so influenced? by what ligament, on what basis, on what possible foundation, does it rest? is it on similarity of language? no! we speak different tongues; we speak the english language. on the resemblance of our laws! no! the sources of our jurisprudence spring from another and a different country. on commercial intercourse? no! we have comparatively none with france. is it from the correspondence in the genius of the two governments? no! here alone is the liberty of man secure from the inexorable despotism which everywhere else tramples it under foot. where, then, is the ground of such an influence? but, sir, i am insulting you by arguing on such a subject. yet, preposterous and ridiculous as the insinuation is, it is propagated with so much industry, that there are persons found foolish and credulous enough to believe it. you will, no doubt, think it incredible (but i have nevertheless been told the fact) that an honorable member of this house, now in my eye, recently lost his election by the circulation of a story in his district, that he was the first cousin of the emperor napoleon. the proof of the charge was rested on a statement of facts which was undoubtedly true. the gentleman in question it was alleged had married a connection of the lady of the president of the united states, who was the intimate friend of thomas jefferson, late president of the united states, who some years ago was in the habit of wearing red french breeches. now, taking these premises as established, you, mr. chairman, are too good a logician not to see that the conclusion necessarily followed! throughout the period he had been speaking of, the opposition had been distinguished, amidst all its veerings and changes, by another inflexible feature--the application of every vile epithet, which our rich language affords, to bonaparte. he has been compared to every hideous monster and beast, from that of the _revelations_ to the most insignificant quadruped. he has been called the scourge of mankind, the destroyer of europe, the great robber, the infidel, and--heaven knows by what other names. really, gentlemen remind me of an obscure lady in a city, not very far off, who also took it into her head, in conversation with an accomplished french gentleman, to talk of the affairs of europe. she, too, spoke of the destruction of the balance of power, stormed and raged about the insatiable ambition of the emperor; called him the curse of mankind--the destroyer of europe. the frenchman listened to her with perfect patience, and when she had ceased, said to her, with ineffable politeness: "madam, it would give my master, the emperor, infinite pain, if he knew how hardly you thought of him." sir, gentlemen appear to me to forget that they stand on american soil; that they are not in the british house of commons, but in the chamber of the house of representatives of the united states; that we have nothing to do with the affairs of europe--the partition of territory and sovereignty there--except in so far as these things affect the interests of our own country. gentlemen transform themselves into the burkes, chathams, and pitts, of another country, and forgetting, from honest zeal, the interests of america, engage, with european sensibility, in the discussion of european interests. if gentlemen ask me, if i do not view with regret and sorrow the concentration of such vast power in the hands of bonaparte, i reply that i do. i regret to see the emperor of china holding such immense sway over the fortunes of millions of our species. i regret to see great britain possessing so uncontrolled a command over all the waters of our globe. and if i had the ability to distribute among the nations of europe their several portions of power and of sovereignty, i would say that holland should be resuscitated, and given the weight she enjoyed in the days of her de witts. i would confine france within her natural boundaries--the alps, the pyrenees, and the rhine--and make her a secondary naval power only. i would abridge the british maritime power, raise prussia and austria to first-rate powers, and preserve the integrity of the empire of russia. but these are speculations. i look at the political transactions of europe, with the single exception of their possible bearing upon us, as i do at the history of other countries or other times. i do not survey them with half the interest that i do the movements in south america. our political relation is much less important than it is supposed to be. i have no fears of french or english subjugation. if we are united, we are too powerful for the mightiest nation in europe, or all europe combined. if we are separated, and torn asunder, we shall become an easy prey to the weakest of them. in the latter dreadful contingency, our country will not be worth preserving. in one respect there is a remarkable difference between administration and the opposition--it is in a sacred regard for personal liberty. when out of power, my political friends condemned the surrender of jonathan robbins; they opposed the violation of the freedom of the press, in the sedition law; they opposed the more insidious attack upon the freedom of the person, under the imposing garb of an alien law. the party now in opposition, then in power, advocated the sacrifice of the unhappy robbins, and passed those two laws. true to our principles, we are now struggling for the liberty of our seamen against foreign oppression. true to theirs, they oppose the war for this object. they have indeed lately affected tender solicitude for the liberties of the people, and talk of the danger of standing armies, and the burden of taxes. but it is evident to you, mr. chairman, that they speak in a foreign idiom. their brogue betrays that it is not their vernacular tongue. what! the opposition, who in and , could raise an useless army to fight an enemy three thousand miles distant from us, alarmed at the existence of one raised for a known specified object--the attack of the adjoining provinces of the enemy? the gentleman from massachusetts, who assisted by his vote to raise the army of twenty-five thousand, alarmed at the danger of our liberties from this very army! i mean to speak of another subject, which i never think of but with the most awful considerations. the gentleman from massachusetts, in imitation of his predecessors of , has entertained us with cabinet plots, presidential plots, which are conjured up in the gentleman's own perturbed imagination. i wish, sir, that another plot of a much more serious kind--a plot that aims at the dismemberment of our union--had only the same imaginary existence. but no man, who had paid any attention to the tone of certain prints, and to transactions in a particular quarter of the union for several years past, can doubt the existence of such a plot. it was far, very far from my intention to charge the opposition with such a design. no, he believed them generally incapable of it. he could not say as much for some who were unworthily associated with them in that quarter of the union to which he referred. the gentleman cannot have forgotten his own sentiment, uttered even on the floor of this house, "peaceably if we can, forcibly if we must;" in and about the same time henry's mission to boston was undertaken. the flagitiousness of that embassy had been attempted to be concealed by directing the public attention to the price which the gentleman says was given for the disclosure. as if any price could change the atrociousness of the attempt on the part of great britain, or could extenuate in the slightest degree the offence of those citizens who entertained and deliberated upon the infamous proposition! there was a most remarkable coincidence between some of the things which that man states, and certain events in the quarter alluded to. in the contingency of war with great britain, it will be recollected that the neutrality and eventual separation of that section of the union was to be brought about. how, sir, has it happened, since the declaration of war, that british officers in canada have asserted to american officers that this very neutrality would take place? that they have so asserted can be established beyond controversy. the project is not brought forward openly, with a direct avowal of the intention. no, the stock of good sense and patriotism in that portion of the country is too great to be undisguisedly encountered. it is assailed from the masked batteries of friendship to peace and commerce on the one side, and by the groundless imputation of opposite propensities on the other. the affections of the people are to be gradually undermined. the project is suggested or withdrawn; the diabolical parties, in this criminal tragedy, make their appearance or exit, as the audience to whom they address themselves are silent, applaud or hiss. i was astonished, sir, to have lately read a letter, or pretended letter, published in a prominent print in that quarter, written not in the fervor of party zeal, but coolly and deliberately, in which the writer affects to reason about a separation, and attempts to demonstrate its advantages to different sections of the union, deploring the existence now of what he terms prejudices against it, but hoping for the arrival of the period when they shall be eradicated. the war was declared because great britain arrogated to herself the pretension of regulating foreign trade, under the delusive name of retaliatory orders in council--a pretension by which she undertook to proclaim to american enterprise, "thus far shalt thou go, and no farther." orders which she refused to revoke after the alleged cause of their enactment had ceased; because she persisted in the act of impressing american seamen; because she had instigated the indians to commit hostilities against us; and because she refused indemnity for her past injuries upon our commerce. i throw out of the question other wrongs. the war in fact was announced, on our part, to meet the war which she was waging on her part. so undeniable were the causes of the war; so powerfully did they address themselves to the feelings of the whole american people, that when the bill was pending before this house, gentlemen in the opposition, although provoked to debate, would not, or could not, utter one syllable against it. it is true they wrapped themselves up in sullen silence, pretending that they did not choose to debate such a question in secret session. whilst speaking of the proceedings on that occasion, i beg to be permitted to advert to another fact that transpired--an important fact material for the nation to know, and which i have often regretted had not been spread upon our journals. my honorable colleague (mr. mckee) moved, in committee of the whole, to comprehend france in the war; and when the question was taken upon the proposition, there appeared but ten votes in support of it, of whom seven belonged to this side of the house, and three only to the other. it is said that we were inveigled into the war by the perfidy of france; and that had she furnished the document in time, which was first published in england, in may last, it would have been prevented. i will concede to gentlemen every thing they ask about the injustice of france towards this country. i wish to god that our ability was equal to our disposition to make her feel the sense of that injustice. the manner of the publication of the paper in question, was undoubtedly extremely exceptionable. but i maintain that, had it made its appearance earlier, it would not have had the effect supposed; and the proof lies in the unequivocal declarations of the british government. i will trouble you, sir, with going no further back than to the letters of the british minister, addressed to the secretary of state, just before the expiration of his diplomatic functions. it will be recollected by the committee that he exhibited to this government a despatch from lord castlereagh, in which the principle was distinctly avowed, that to produce the effect of the repeal of the orders in council, the french decrees must be absolutely and entirely revoked as to all the world, and not as to america alone. a copy of that despatch was demanded of him, and he very awkwardly evaded it. but, on the th of june, after the bill declaring war had actually passed this house, and was pending before the senate, (and which, i have no doubt, was known to him,) in a letter to mr. monroe, he says: "i have no hesitation, sir, in stating that great britain, as the case has hitherto stood, never did, nor ever could engage, without the greatest injustice to herself and her allies, as well as to other neutral nations, to repeal her orders as affecting america alone, leaving them in force against other states, upon condition that france would except singly and specially america from the operation of her decrees." on the th of the same month, the bill still pending before the senate, he repeats: "i will now say, that i feel entirely authorized to assure you, that if you can at any time produce a full and unconditional repeal of the french decrees, as you have a right to demand it in your character of a neutral nation, and that it be disengaged from any question concerning our maritime rights, we shall be ready to meet you with a revocation of the orders in council. previously to your producing such an instrument, which i am sorry to see you regard as unnecessary, you cannot expect of us to give up our orders in council." thus, sir, you see that the british government would not be content with a repeal of the french decrees as to us only. but the french paper in question was such a repeal. it could not, therefore, satisfy the british government. it could not, therefore, have induced that government, had it been earlier promulgated, to repeal the orders in council. it could not, therefore, have averted the war. the withholding of it did not occasion the war, and the promulgation of it would not have prevented the war. but gentlemen have contended that, in point of fact, it did produce a repeal of the orders in council. this i deny. after it made its appearance in england, it was declared by one of the british ministry, in parliament, not to be satisfactory. and all the world knows, that the repeal of the orders in council resulted from the inquiry, reluctantly acceded to by the ministry, into the effect upon their manufacturing establishments, of our non-importation law, or to the warlike attitude assumed by this government, or to both. but it is said that the orders in council are done away, no matter from what cause; and that having been the sole motive for declaring the war, the relations of peace ought to be restored. this brings me into an examination of the grounds for continuing the war. i am far from acknowledging that had the orders in council been repealed, as they have been, before the war was declared, the declaration would have been prevented. in a body so numerous as this, from which the declaration emanated, it is impossible to say with any degree of certainty what would have been the effect of such a repeal. each member must answer for himself. i have no hesitation then, in saying, that i have always considered the impressment of american seamen as much the most serious aggression. but, sir, how have those orders at last been repealed? great britain, it is true, has intimated a willingness to suspend their practical operation, but she still arrogates to herself the right to revive them upon certain contingencies, of which she constitutes herself the sole judge. she waives the temporary use of the rod, but she suspends it _in terrorem_ over our heads. supposing it was conceded to gentlemen that such a repeal of the orders in council, as took place on the d of june last, exceptionable as it is, being known before the war, would have prevented the war, does it follow that it ought to induce us to lay down our arms without the redress of any other injury? does it follow, in all cases, that that which would have prevented the war in the first instance should terminate the war? by no means. it requires a great struggle for a nation prone to peace as this is, to burst through its habits and encounter the difficulties of war. such a nation ought but seldom to go to war. when it does, it should be for clear and essential rights alone, and it should firmly resolve to extort, at all hazards, their recognition. the war of the revolution is an example of a war began for one object and prosecuted for another. it was waged in its commencement against the right asserted by the parent country to tax the colonies. then no one thought of absolute independence. the idea of independence was repelled. but the british government would have relinquished the principle of taxation. the founders of our liberties saw, however, that there was no security short of independence, and they achieved our independence. when nations are engaged in war, those rights in controversy, which are acknowledged by the treaty of peace, are abandoned. and who is prepared to say that american seamen shall be surrendered the victims to the british principle of impressment? and, sir, what is this principle? she contends that she has a right to the services of her own subjects: that, in the exercise of this right, she may lawfully impress them, even although she finds them in our vessels, upon the high seas, without her jurisdiction. now, i deny that she has any right, without her jurisdiction, to come on board our vessels on the high seas, for any other purpose but in pursuit of enemies, or their goods, or goods contraband of war. but she further contends that her subjects cannot renounce their allegiance to her and contract a new obligation to other sovereigns. i do not mean to go into the general question of the right of expatriation. if, as is contended, all nations deny it, all nations at the same time admit and practice the right of naturalization. great britain, in the very case of foreign seamen, imposes perhaps fewer restraints upon naturalization than any other nation. then, if subjects cannot break their original allegiance, they may, according to universal usage, contract a new allegiance. what is the effect of this double obligation? undoubtedly, that the sovereign having possession of the subject would have a right to the services of the subject. if he return within the jurisdiction of his primitive sovereign, he may resume his right to his services, of which the subject by his own act could not divest himself. but his primitive sovereign can have no right to go in quest of him, out of his own jurisdiction into the jurisdiction of another sovereign, or upon the high seas, where there exists either no jurisdiction, or it belongs to the nation owning the ship navigating them. but, sir, this discussion is altogether useless. it is not to the british principle, objectionable as it is, that we are alone to look; it is to her practice--no matter what guise she puts on. it is in vain to assert the inviolability of the obligation of allegiance. it is in vain to set up the plea of necessity, and to allege that she cannot exist without the impressment of her seamen. the truth is, she comes, by her press gangs, on board of our vessels, seizes our native seamen, as well as naturalized, and drags them into her service. it is the case, then, of the assertion of an erroneous principle, and a practice not conformable to the principle--a principle which, if it were theoretically right, must be forever practically wrong. we are told by gentlemen in the opposition that government has not done all that was incumbent on it to do to avoid just cause of complaint on the part of great britain; that, in particular, the certificates of protection, authorized by the act of , are fraudulently used. sir, government has done too much in granting those paper protections. i can never think of them without being shocked. they resemble the passes which the master grants to his negro slave: "let the bearer, mungo, pass and repass without molestation." what do they imply? that great britain has a right to take all who are not provided with them. from their very nature they must be liable to abuse on both sides. if great britain desires a mark by which she can know her own subjects, let her give them an ear mark. the colors that float from the mast head should be the credentials of our seamen. there is no safety to us, and the gentlemen have shown it, but in the rule that all who sail under the flag (not being enemies) are protected by the flag. it is impossible that this country should ever abandon the gallant tars who have won for us such splendid trophies. let me suppose that the genius of columbia should visit one of them in his oppressor's prison and attempt to reconcile him to his wretched condition. she would say to him, in the. language of the gentlemen on the other side, "great britain intends you no harm; she did not mean to impress you, but one of her own subjects; having taken you by mistake, i will remonstrate, and try to prevail upon her by peaceable means to release you, but i cannot, my son, fight for you." if he did not consider this mockery, he would address her judgment, and say, "you owe me, my country, protection; i owe you in return obedience. i am no british subject, i am a native of old massachusetts, where live my aged father, my wife and my children. i have faithfully discharged my duty. will you refuse to do yours?" appealing to her passions, he would continue, "i lost this eye in fighting under truxton with the insurgent; i got this scar before tripoli; i broke this leg on board the constitution when the guerriere struck." if she remained still unmoved, he would break out, in the accents of mingled distress and despair, "hard, hard, is my fate! once i freedom enjoyed, was as happy as happy could be! oh! how hard is my fate, how galling these chains!" i will not imagine the dreadful catastrophe to which he would be driven by an abandonment of him to his oppressor. it will not be, it cannot be, that his country will refuse him protection! it is said that great britain has been always willing to make a satisfactory arrangement of the subject of impressment; and that mr. king had nearly concluded one prior to his departure from that country. let us hear what that minister says upon his return to america. in his letter dated at new york, in july, , after giving an account of his attempt to form an arrangement for the protection of our seamen, and his interviews to this end with lords hawkesbury and st. vincent; and stating that, when he had supposed the terms of a convention were agreed upon, a new pretension was set up (the _mare clausum_,) he concludes: "i regret not to have been able to put this business on a satisfactory footing, knowing as i do its very great importance to both parties; but i flatter myself that i have not misjudged the interests of our own country, in refusing to sanction a principle that might be productive of more extensive evils than those it was our aim to prevent." the sequel of his negotiation, on this affair, is more fully given in the recent conversation between mr. russell and lord castlereagh, communicated to congress during its present session. lord castlereagh says to mr. russell: "indeed there has evidently been much misapprehension on this subject, and an erroneous belief entertained that an arrangement in regard to it has been nearer an accomplishment than the facts will warrant. even our friends in congress--i mean those who were opposed to going to war with us--have been so confident in this mistake, that they have ascribed the failure of such an arrangement solely to the misconduct of the american government. this error probably originated with mr. king; for, being much esteemed here, and always well received by the persons in power, he seems to have misconstrued their readiness to listen to his representations, and their warm professions of a disposition to remove the complaints of america in relation to impressment, into a supposed conviction on their part of the propriety of adopting the plan which he had proposed. but lord st. vincent, whom he might have thought he had brought over to his opinions, appears never for a moment to have ceased to regard all arrangement on the subject to be attended with formidable, if not insurmountable obstacles. this is obvious from a letter which his lordship addressed to sir william scott at the time." here lord castlereagh read a letter, contained in the records before him, in which lord st. vincent states to sir william scott the zeal with which mr. king had assailed him on the subject of impressment, confesses his own perplexity, and total incompetency to discover any practical project for the safe discontinuance of that practice, and asks for counsel and advice. "thus you see," proceeded lord castlereagh, "that the confidence of mr. king on this subject was entirely unfounded." thus, continued mr. clay, it is apparent, that, at no time, has the enemy been willing to place this subject on a satisfactory footing. i will speak hereafter of the overtures made by the administration since the war. the disasters of the war admonish us, we are told, of the necessity of terminating the contest. if our achievements upon the land have been less splendid than those of our intrepid seamen, it is not because the american soldier is less brave. on the one element, organization, discipline, and a thorough knowledge of their duties, exist on the part of the officers and their men. on the other, almost every thing is yet to be acquired. we have, however, the consolation that our country abounds with the richest materials, and that, in no instance, when engaged in action, have our arms been tarnished. at brownstown, and at queenstown, the valor of veterans was displayed, and acts of the noblest heroism were performed. it is true, that the disgrace of detroit remains to be wiped off. that is a subject on which i cannot trust my feelings, it is not fitting i should speak. but this much i will say, it was an event which no human foresight could have anticipated, and for which the administration cannot be justly censured. it was the parent of all the misfortunes we have experienced on land. but for it the indian war would have been in a great measure prevented or terminated, the ascendency on lake erie acquired, and the war pushed perhaps to montreal. with the exception of that event, the war, even upon the land, had been attended by a series of the most brilliant exploits, which, whatever interest they may inspire on this side of the mountains, have given the greatest pleasure on the other. the expedition under the command of governor edwards and colonel russell, to lake peoria, on the illinois, was completely successful. so was that of captain craig, who, it is said, ascended that river still higher. general hopkins destroyed the prophet's town. we have just received intelligence of the gallant enterprise of colonel campbell. in short, sir, the indian towns have been swept from the mouth to the source of the wabash, and a hostile country has been penetrated far beyond the most daring incursions of any campaign during the former indian war. never was more cool, deliberate bravery displayed than that by newnan's party from georgia. and the capture of the detroit, and the destruction of the caledonia, (whether placed to our maritime or land account,) for judgment, skill, and courage, on the part of lieutenant elliott, has never been surpassed. what cause, mr. chairman, which existed for declaring the war has been removed? we sought indemnity for the past and security for the future. the orders in council are suspended, not revoked; no compensation for spoliations; indian hostilities, which were before secretly instigated, now openly encouraged; and the practice of impressment unremittingly persevered in and insisted upon. yet administration has given the strongest demonstrations of its love of peace. on the th june, less than ten days after the declaration of war, the secretary of state writes to mr. russell, authorizing him to agree to an armistice, upon two conditions only; and what are they? that the orders in council should be repealed, and the practice of impressing american seamen cease, those already impressed being released. the proposition was for nothing more than a real truce; that the war should in fact cease on both sides. again, on the th july, one month later, anticipating a possible objection to these terms, reasonable as they are, mr. monroe empowers mr. russell to stipulate in general terms for an armistice, having only an informal understanding on these points. in return, the enemy is offered a prohibition of the employment of his seamen in our service, thus removing entirely all pretext for the practice of impressment. the very proposition which the gentleman from connecticut (mr. pitkin) contends ought to be made, has been made. how are these pacific advances met by the other party? rejected as absolutely inadmissible; cavils are indulged about the inadequacy of mr. russell's powers, and the want of an act of congress is intimated. and yet the constant usage of nations i believe is, where the legislation of one party is necessary to carry into effect a given stipulation, to leave it to the contracting party to provide the requisite laws. if he fails to do so, it is a breach of good faith, and a subject of subsequent remonstrance by the injured party. when mr. russell renews the overture, in what was intended as a more agreeable form to the british government, lord castlereagh is not content with a simple rejection, but clothes it in the language of insult. afterwards, in conversation with mr. russell, the moderation of our government is misinterpreted and made the occasion of a sneer, that we are tired of the war. the proposition of admiral warren is submitted in a spirit not more pacific. he is instructed, he tells us, to propose that the government of the united states shall instantly recall their letters of marque and reprisal against british ships, together with all orders and instructions for any acts of hostility whatever against the territories of his majesty or the persons or property of his subjects. that small affair being settled, he is further authorized to arrange as to the revocation of the laws which interdict the commerce and ships of war of his majesty from the harbors and waters of the united states. this messenger of peace comes with one qualified concession in his pocket, not made to the justice of our demands, and is fully empowered to receive our homage, the contrite retraction of all our measures adopted against his master! and in default, he does not fail to assure us, the orders in council are to be forthwith revived. administration, still anxious to terminate the war, suppresses the indignation which such a proposal ought to have created, and in its answer concludes by informing admiral warren, "that if there be no objection to an accommodation of the difference relating to impressment, in the mode proposed, other than the suspension of the british claim to impressment during the armistice, there can be none to proceeding, without the armistice, to an immediate discussion and arrangement of an article on that subject." thus it has left the door of negotiation unclosed, and it remains to be seen if the enemy will accept the invitation tendered to him. the honorable gentleman from north carolina (mr. pearson) supposes, that if congress would pass a law, prohibiting the employment of british seamen in our service, upon condition of a like prohibition on their part, and repeal the act of non-importation, peace would immediately follow. sir, i have no doubt if such a law were passed, with all the requisite solemnities, and the repeal to take place, lord castlereagh would laugh at our simplicity. no, sir, administration has erred in the steps which it has taken to restore peace, but its error has been not in doing too little, but in betraying too great a solicitude for that event. an honorable peace is attainable only by an efficient war. my plan would be to call out the ample resources of the country, give them a judicious direction, prosecute the war with the utmost vigor, strike wherever we can reach the enemy, at sea or on land, and negotiate the terms of a peace at quebec or halifax. we are told that england is a proud and lofty nation that, disdaining to wait for danger, meets it half way. haughty as she is, we once triumphed over her, and if we do not listen to the counsels of timidity and despair we shall again prevail. in such a cause, with the aid of providence, we must come out crowned with success; but if we fail, let us fail like men--lash ourselves to our gallant tars, and expire together in one common struggle, fighting for "seamen's rights and free trade." mr. mckee moved an amendment to the bill, going to place the appointment of the other field officers of each regiment, as well as the colonels, in the president and senate. the motion was agreed to. monday, january . _additional military force._ the house again resolved itself into a committee of the whole, on the bill for raising an additional military force of twenty thousand men for one year. mr. sheffey said he felt grateful for the opportunity which had been afforded him, to deliver his sentiments on the subject before the committee. it was now about a year ago, when he had stated his reasons at length on the question of the war then meditated against great britain. since that time, he had been generally a silent, though not an inattentive spectator. conscious that there had fallen to his share a full portion of the frailty common to man, he felt disposed to distrust his own opinion. he had even hoped he might be mistaken, he had hoped that experience would prove the fallacy of his apprehensions; that the predictions of gentlemen, who differed from him in sentiment, would be realized; that the rights of the country would be secured by arms, to which the majority had resorted; and that the evils anticipated would vanish before us. on a review, however, of the reasons which had then influenced him, aided by the experience of the last year, he found his opinions, not only unshaken, but strongly confirmed. the bill before us, said mr. s., contemplates an addition of twenty thousand men to the army heretofore authorized to be raised. by the measures preparatory to the war, upwards of thirty-six thousand men were directed to be enlisted; with the addition now contemplated, our regular army will amount to more than fifty-six thousand men. the question which at once presents itself to every mind disposed to inquire, is, what is the object of this vast military force? we are here not left to conjecture; this inquiry has been anticipated, and we have been directly told by the chairman of the military committee, (mr. williams,) that it is intended for offensive purposes; that the conquest of canada, nova scotia, and new brunswick, is to be achieved. if i have any right to deliberate on this subject, and to express the opinion which my view of the real interests of the country dictates, i at once say, that i cannot give my assent to raise such a force for such a purpose. was an augmentation of the army required to defend us against any enemy, either on the maritime or inland frontier, no member of this house would more readily accord the means of defence and protection than myself. in such event, i shall not inquire how we got into the situation, or by whose temerity the enemy has been brought on our borders. i shall consider _defence_ as a matter of imperious necessity, forbidding all calculation as to means and consequences. but, as it is admitted by all, that the force already authorized is more than sufficient for every defensive purpose; as it is expressly avowed that it is required for offensive operations in the territories of the enemy, the question assumes a different shape; it is stripped of the overruling influence which attends necessity; it becomes a mere question of expediency, controlled by the various considerations which reason and policy may dictate. so far as my conduct is concerned, before i can consent to the prosecution of the war, in the manner contemplated, i must be convinced that the objects in controversy are not only just, but of sufficient importance in their practical effect on the community to justify such an experiment, and not attainable in any other way; that there is a reasonable probability that such a war will secure to us those objects; and that we are not endangering the greater good, to obtain an exemption from the lesser evil; hazarding certain great rights, to secure others of far inferior importance. i regret that i cannot, consistently with my sense of duty, yield the unlimited confidence in their measures, which the majority demand. my reason must be convinced, before my confidence can be bestowed. there are, indeed, cases where superior virtue and wisdom, tested by long and successful experience, have a strong claim to our confidence. but this, in my opinion, is not the case here. a retrospect of the transactions of the last eight years, will show how much gentlemen have been mistaken and disappointed in their views of our foreign policy; particularly that part which is connected with the difficulties in which we now find ourselves, and which may be said to be the groundwork of them. in making this declaration, and in leading your attention to the facts, it is not my object to give offence to any one. i believe gentlemen are actuated by the purest motives, and sincerely disposed to render essential service to the country. i speak of facts only, intending to show a mistaken, not a corrupt or vicious course. our difficulties with great britain commenced soon after the treaty of (generally called "jay's treaty") expired by its own limitation, in consequence of the peace of amiens. about that time the british government offered to our minister, then resident in london, a renewal of the treaty. that instrument had been negotiated under the auspices, and received the sanction of washington, the father and benefactor of his country. it is true, that its stipulations did not embrace every subject which we could have wished; and those that were embraced, were not so advantageously settled as might have been done, had we had it in our power to have dictated the terms. but it is equally true, that experience refuted all the speculations, and dissipated all the apprehensions, with which the country was filled at the time of its ratification. during its operation we enjoyed a degree of prosperity unexampled in this or any other country. our leading interests flourished in a manner unknown before, and unexperienced since; our agriculture was encouraged by high prices and ready markets for its products; the freedom of navigation, and the enterprise of our people, carried our commerce to every part of the globe. i ask this house and this nation, whether their hopes or wishes extend beyond what we then enjoyed? if they do, they hope for that which is opposed by all human probability, and they wish for that which has scarcely ever fallen to the lot of man. we were, indeed, not exempt from every evil, or gratified by every possible good. what nation or individual ever reached that state? but the great essentials of national prosperity were in our possession. our government, however, was not satisfied. the overture of the british government was rejected, under the impression, no doubt, that better terms could be obtained; that the situation of great britain would compel her to yield to our demands, however extensive. soon after the rejection of this overture, great britain assumed the right to interdict the trade in the products of her enemies' colonies, when taken directly from those colonies to the mother country, conformably, as she asserted, to the principles adopted in the war of . in consequence of which, our government, with a view to coerce her into a relinquishment of her pretensions, passed the partial non-importation act of . it had not the intended and promised effect. they again resorted to negotiation, and repealed the restriction. about this time, a change happened in the british cabinet, highly auspicious to our interests. "our friends," yes, our old friends, who had espoused our cause in time of peril and danger, who had defended our rights during all the vicissitudes of the revolution, and who had manifested their friendship for us on every occasion since, got into power. with these men, a negotiation was opened by our government through the instrumentality of our ministers, messrs. monroe and pinkney, which resulted in a treaty, as our own ministers declared, "both honorable and advantageous to the united states," and the best that could be obtained. it was not only "advantageous" as it respected our commerce, but the informal understanding which accompanied it, would have secured us against the abuses of impressments; so our own ministers believed. but it was rejected without being even submitted to the senate. the reasons have never been disclosed to the nation. i presume, however, that it was confidently expected that such was the situation of great britain, that any terms that we should dictate would be granted. the terms which our government demanded not being accorded on the part of great britain, a new policy was resorted to by our government, which was held up to the nation as a sovereign remedy for all our difficulties, which were daily increasing. an embargo, not limited in its duration, was laid on our shipping. the prominent virtues of this remedy were supposed to be--that it would coerce the belligerents, but particularly great britain, into an abandonment of their injurious measures; and above all, that it would save us from being involved in war. the experience of one year, however, manifested how little its supporters understood of the means and resources of other nations, and of the character of our own. the privations to which a great portion of our people were subjected in consequence of this measure coerced our government into a repeal, long before any sensible impression could be made on great britain. the embargo was abandoned, because the people would bear it no longer, and the non-intercourse system was adopted in its stead. this also had its day--but this, like the embargo, experience condemned as injurious and ruinous policy; and the public voice called for its repeal. it was succeeded by the act of the first of may, , the source of our present difficulties. when this act passed this house, we were told that its provisions held out the strongest inducement to each of the great belligerents, to precede its rival in the abrogation of the injurious edicts affecting the commerce of this country, and that whoever might lead the other would unquestionably follow. it required very little sagacity to penetrate this subject. it was easily foreseen that this measure would be employed to detach us from our neutral situation, which it was so much our interest, and had been so much our desire, to maintain. this apprehension experience has realized. we now feel the consequences in their fullest extent. after we had become the dupes of french perfidy, by putting in force the non-importation system against great britain, under the belief, that on the first day of november, , the decrees of berlin and milan were repealed, the falsehood of which has since been placed beyond all rational doubt, it happened as had been anticipated, that finding the inefficiency of the restrictive system against great britain, the nation was called on, about the commencement of last session, to assume a threatening attitude towards that power. we were then told by the supporters of our foreign policy, that war would not be necessary. that justice was withheld from us by the government of that nation under the impression that force would not be used to maintain our rights, which impression it was only necessary to remove by manifesting a determined spirit in making warlike preparations. this prevailed with many, and the army was voted. but it did not intimidate our enemy. we were then told, that it was necessary to declare war, as affording conclusive evidence of our sincerity: but that it would not be necessary to continue it beyond a few weeks, when our objects would be attained by a just and honorable peace. we were also told, at the same time, that in six weeks after the declaration of war, we should be in possession of a great portion of the enemy's colonies. all these promises have been disappointed. we have effected nothing by commercial restrictions, nothing by arms, and nothing by negotiation; and, if there is not a change in our policy, the war promises to be perpetual. having detained you thus long with these preliminary topics, permit me to draw your attention to those that grow directly out of the bill before the committee. i have said, that the causes ought not only to be just, but important in their effect on the community, to justify a resort to arms. i will say more. a nation situated as this is, who has so much to lose, and so little to gain, ought not to relinquish its peaceful state but in the last extremity. are the causes which existed at the time when this war was declared, of that character which, according to this idea, justified its commencement; and are those now remaining sufficient to sanction its continuance? i exclude all consideration of the abstract justice of our complaints against great britain. upon that subject i never had but one opinion. i always did believe that her conduct towards this country was not only unjust as it affected us, but impolitic as it affected herself. before the war commenced last summer, the orders in council formed the principal ground of complaint against great britain. i venture to assert, without the dread of contradiction, that if the repeal which has since taken place had happened and been known here before we resorted to the sword, we should have remained at peace. i make this declaration on (what i deem) the most unquestionable authority. the proof is on record. in , mr. jefferson, then president of the united states, through our minister in london, proposed to the british government to relinquish the embargo as to her, on condition the orders in council were revoked. in , mr. madison entered into the arrangement with mr. erskine, which made the same condition the sole foundation for restoring amicable intercourse between the two nations. in and , the discussions between our government and that of great britain were confined almost exclusively to that subject. and in , preceding the declaration of war, the secretary of state informed the british envoy, that if the orders in council were revoked, the non-importation act would cease immediately. during the whole of this period, our complaints were directed to the orders in council, and our measures, (i speak of our restrictive system,) so far as they affected great britain, were adopted with a single eye to their repeal. until the war was declared, i did not suppose that it would be waged for any other object. the orders in council, though a violation of our maritime rights in point of principle, were practically of very little injury to our commerce at the commencement of the war in which we are now engaged. the reasons are obvious. our commerce to france, holland, italy, &c., never was of great importance. and the effect of the french "municipal regulations" had caused it to dwindle into insignificance. the exclusions, restrictions, impositions, and confiscations, so permanent in the commercial code (and practice) of napoleon, had inspired our merchants with a due portion of caution, how they ventured their property into the power of a government actuated by no liberal principle, and bound by no faith. from this state of things, it was not difficult to conjecture that the period was not distant when great britain must become convinced of the inefficiency of the orders in council, so far as respected their retaliatory object on her enemy. how could france be distressed by the british interdiction of her foreign commerce, when france herself was hostile to that commerce--when she adopted every measure to narrow, to shackle, and ultimately to exclude it? we had even strong evidence that british statesmen began to waver on the subject. the vote in the house of commons, during the last winter, showed a minority unusually strong, and indicated most clearly that before long the orders in council were doomed to perish. but, with this information before our eyes, we hurried on to war without waiting for the event, or even without waiting for preparation. the orders in council have since been repealed. the manner has indeed been objected to by the honorable speaker, (mr. clay,) because the right to secure them in certain events is reserved. but surely this cannot be and has not been considered by our government a serious objection; for without such reservation the power to revive them existed to every possible extent. the only question is, do they cease to violate our neutral commerce? this is not doubted. the remaining obstacle, therefore, to a good understanding between the two nations, and the sole ostensible cause for persevering in the war, is the subject of impressments. this is, indeed, a difficult and unquestionably an interesting subject. not that i place entire confidence in the sympathetic descriptions of the magnitude of the evil, which we have so often heard and daily heard in this house. i am inclined to believe fancy has colored the picture too highly. there is one reason, above all others, which leads me to that conclusion. it is this: in that section of the united states of which two-thirds of our seamen are natives, there is a strong, overwhelming current of opinion against this war. can it be possible that the country where dwells the kindred of those who are said to be incarcerated in great numbers in the "floating dungeons" of great britain is not only indifferent about the fate of its children, but opposes, as ruinous, the war waged for their protection? it is certainly a curious spectacle to see the defenders of seamen's rights come from those portions of the union that have little commerce, and few, if any, seamen. i do not mean to insinuate that those gentlemen do wrong in espousing the cause of the oppressed, to whatever quarter they may belong; but i state the fact to show that their sympathies may possibly have magnified the evil--and to infer from it, that the opposition of those most immediately interested is to be ascribed, not to their insensibility, but to their apprehensions that this war, instead of securing seamen's rights, will banish their seamen into foreign service. the controversy between this country and great britain seems to have been brought to a single point. she claims the service of her seafaring subjects in time of danger. our government admits this right. to give effect to the right thus claimed and admitted, she insists that her officers may go on board our merchant ships on the high seas, or in her ports--search for and take her subjects. this our government deny, and claim the immunity of the flag so far as persons are concerned; because, under the pretext of taking british subjects, american citizens are frequently taken. it does, indeed, not distinctly appear in the late communication from our executive to the british government, that they mean by the terms american citizens, whether it includes naturalized persons as well as natives. with respect to those of the first description, i confess i feel no great interest for their immunity abroad or on the high seas; i am one of those who think that we act sufficiently liberal when we offer them any asylum from the oppression or poverty of their own country, receive them into our bosom, and extend to them all the advantages belonging to us; and so long as they remain within our territorial limits, they shall, with my consent, have the full benefit of the protection which our laws afford to all. but i cannot consent that the native blood of this country shall be profusely wasted to protect aliens born, wherever they may ramble. we all profess a deep solicitude for the interest of seamen. to describe their distresses and to eulogize their valor and patriotism, is one of the topics of the day. and yet we are contending for principles which, if successful, will bring a host of foreigners in competition with them to elbow them out of employment. but it is said that great britain does the same--that by the act passed during the reign of george ii., foreign seamen are naturalized who have been in the king's service for two years, and that she has no right to object if we imitate her conduct. it is true she has adopted such a regulation. but i have never heard of any instance where she has contended that such a person is absolved from his natural allegiance, if he comes within the power of his original sovereign. i have understood that act to mean that such persons should become entitled to certain rights--not absolved from any duties towards others, should they leave the country. that they should have the right to hold lands--be admitted under the regulations of the navigation act as british seamen on board merchant ships, and participate in the pension and hospital provisions. should i be mistaken, however, i am not inclined to relinquish my opinion, merely because the practice of great britain is opposed to it. sir, i do not find fault with the administration for insisting on the immunity of our flag, as it respects the seamen. i approve of the principle. it is of that character which at a proper time and with proper means is (in effect and to all general purposes) attainable, if we do not by ill-timed and imprudent efforts frustrate it. it is supposed that the present is the auspicious moment to insist on our rights. that pressed as great britain is by the most powerful enemy the world ever saw, who threatens her very existence; the impression which we can make upon her by our arms, will be greater than at any other time. this very circumstance renders the attainment of our object more difficult, and makes our case hopeless. her danger forbids a compliance with our demands. in her present struggle, her naval power constitutes her security. without that she would long since have become a french province. this every man in england knows and feels. it is well known that four-fifths of her seamen on board her navy render not voluntary but compulsory service. should this principle be established, which in all cases would afford a secure asylum in our merchant ships, it is dreaded by british statesmen and the british people, that their seamen, allured by higher wages and easier employment, would abandon their service, and thus render their country accessible to their enemy. hence you see every ministry, of whatever political party or distinction, tremblingly alive to this subject. they dare not touch it in the present state of that country. no man could maintain his power a moment after having hazarded the public safety by making an experiment, the effect of which could not be foreseen, and may be productive of such disastrous consequences. this spirit is manifest in all the communications from the british cabinet to our government. we have seen the sentiments of lord grenville, lord auckland, lord holland, and mr. fox, men whose prepossessions were in our favor, and who on almost every other subject supported our pretensions. on this subject they resisted our demands, because they dared not grant them. while i conceive the claims of our government as not going too far, i doubt their prudence as to the time and manner of giving them effect. i fear that instead of realizing our wishes the measures pursued are calculated to deprive us of every hope hereafter. in the present unexampled state of the world, according to my limited conception of our true interest, we ought to have seriously avoided all hostile collision with foreign powers. we ought to have cherished the resources within our grasp. nothing is more obvious than the remark made by the honorable gentleman from new york, (mr. bleecker,) that, with all the injuries which we received from the belligerents, our commerce was more extensive and more profitable in the aggregate than if europe had been at peace. we might have obtained (and we ought not to have rejected) such temporary arrangements with england, (with whom our commerce was chiefly carried on,) which, though they did not embrace all our interests, would have secured those of first importance and kept us at peace. the benefits of such a policy are to my mind self-evident. should europe be restored to tranquillity and assume something like its former appearance, (and i do not believe the present state of things durable,) we should have been able to have effected every valuable object, because such a change will probably bring with it a respect for the rights of nations, which have now no existence but in name. and should an imposing attitude have been wanting to give effect to our claims, we should have exhibited an unbroken spirit and unexhausted resources. an honorable member from tennessee, (mr. grundy,) the other day, read some extracts from the instructions transmitted to our minister in london, in . his object was to show the deep interest which the great man who then presided over this nation felt on the subject of impressments. i sincerely wish that while gentlemen resort to his opinions to support theirs, they would consent to imitate his conduct. nothing can be more strikingly different than his policy and that which is now pursued. in the subject of impressments did not form the only complaint against great britain. the treaty of peace remained unexecuted on her part. to that was added the great injury which our commerce sustained by the extensive captures made by her cruisers during that year. the interest which was felt for the success of the french revolution, against which great britain had arrayed herself, tended to excite the nation, even beyond the measure of its wrongs, and ripen it for war. but the wisdom of washington saved us from being drawn into the vortex, which has since devoured all who approached it. his genius considered the true interests of his country to consist in the preservation of its peace; and he had firmness enough to preserve it, though opposed by the strong feelings of the people. notwithstanding the accumulated wrongs which we had received, he sent a messenger of peace, and ultimately gave his assent to a treaty in which there was not one stipulation even to restrain the abuses of impressments, which the year before he had declared could not be longer tolerated. why was this done by him, who, to say the least, had as much affection for his country's rights, as the politicians of the present day--whom fear never influenced--and who could safely calculate on the support of the people, should he resort to arms? the answer is obvious. peace upon almost any terms was better than a hopeless, endless contest. what a contrast does his example present to the conduct of those who now direct the destinies of this nation, and who, while they reject his policy, resort to his opinions to support their own? upon the subject of foreign war, and the objects connected with it, the opinions of gentlemen of the majority have certainly undergone a strange revolution since they came into power. little more than twelve years ago, they deprecated foreign war as inconsistent with the spirit of our institutions, and the genius of our government. nothing short of self-defence, when attacked in our own country, was considered as a justification for abandoning our peaceful pursuits, and mingling in hostility with european powers. every other object was deemed subordinate to the preservation of peace, because with it was connected every benefit which it had pleased providence to bestow upon us, and which our detached situation rendered secure. we now hear those very gentlemen talk of rome and greece in their proudest days, when they inspired terror into the inhabitants of distant climes and carried their arms to every quarter of the globe; and their example is held up for our imitation. the almost boundless extent of our territory is become too limited, and we hear of conquests in the north and south, as essential to our security and happiness. in taking a retrospect, and contrasting former opinions with present conduct, a person would almost be inclined to distrust his observation, was there not left on record monuments with sentiments of former times entertained by gentlemen in the days of humility, when they were struggling against power. permit me to call your attention to a resolution of the virginia assembly, adopted in , said to be draughted by mr. madison, now president of the united states, upon this subject. it was then considered the standard of republican opinion, by all who professed to be of that party. it in substance declares, that though the general assembly view with indignation the violations of our commerce, the impressment of our seamen, and other wrongs committed by foreign nations, yet detached as the united states are from european concerns, they should deprecate a war waged for any other object except self-defence, in cases of actual invasion. this resolution had an eye to our relations with france, from whom we had then received every injury and indignity she could inflict, and with whom we were in a state of partial hostility; but it explicitly declares, that we ought to engage in offensive war, for no object whatever. let the sentiment be compared with the conduct of the same men now they are in power. sir, i am one of those who doubt our capacity to obtain the conquest of the british provinces. i believe that the opinion, that we are a very powerful nation abroad, is a fanciful delusion. to be powerful abroad, requires a government of sufficient energy, not only to bring into action all the physical and pecuniary resources of the country, but to command them promptly. the very nature of our government, where every thing depends immediately upon the people, forbids the idea that you can effect one or the other. the inconveniences and privations to which they must be subjected, are sufficient causes with the great body of the community, who do not perceive very distinctly how they are to be benefited by an offensive war, to turn their faces against it. their representatives, knowing their feelings, dare not press them with a heavy hand, which at once destroys every thing like energy. besides, the want of promptitude, the characteristic defect of such a government, whose powers are divided into many hands, prevents the resources even within their reach to be obtained and applied in time to insure success. the consequence of all this is--imbecility in obtaining, and want of celerity in applying the necessary means. this may be considered as a very great evil, particularly to those who have presented to us the example of rome in her proudest days, when she was mistress of the world, for our imitation. sir, i rejoice that such is the state of my country. it is the legitimate offspring of our free institutions. the people are strong and the government is weak; whenever this state of things shall be reversed, then shall we be able to inspire terror into other nations. but until that period shall arrive, we shall exhibit weakness and slowness of action, as to all offensive and external purposes. to retain the british provinces as an indemnity for our losses, is an event which i cannot wish, because i can see no possible benefit resulting from it. have we not already territory enough? is it desirable to incorporate with us a people composed of heterogeneous materials, who are not only unaccustomed to our institutions, but many of whom entertain an unconquerable hatred for them? i believe it would have been better had we never acquired any foreign territory at all. if we had been contented with the limits embraced by the old thirteen united states, the prospects of remaining a united people, and preserving our free institutions, would, in my conception, be much more flattering. i am, therefore, opposed to new acquisitions. but it is repeatedly urged that the possession of canada is necessary to secure us from the hostilities of the savage tribes on our northwestern borders; was this the fact, i might yield my assent to prosecute the war to attain that object. but experience has shown that we can have peace with them, though canada is in the possession of a foreign power. for seventeen years after the treaty of greenville we were entirely exempt from indian hostilities; and not until we waged war ourselves, did they become troublesome upon our frontiers. my apprehensions are not solely confined to the danger resulting from military power; there are other consequences equally to be dreaded, which i fear may overwhelm us, should we continue in this course. there is one peculiarly delicate, but equally important--so delicate, that gentlemen have supposed it ought not even to be mentioned. sir, shall i not be permitted to point to the yawning gulf beneath? shall i not attempt to arrest your progress in the path where lies a serpent that will sting you to death? i deprecate disunion as an event pregnant with every evil. the moment it happens, civil liberty is banished from this country. i feel deeply interested that it should not happen. permit me, however, to observe, that a union is connected by a consciousness which is felt that the various interests of the different sections are consulted and protected, and not by force. if you wish to perpetuate the union, you must preserve that opinion. the moment that it shall no longer exist, the ties that bind us together become feeble indeed. the present war, though ostensibly waged for principles in which the northern and eastern people have a deep interest, is considered by them--and they certainly understand their interest best--as calculated to prostrate it. they feel the evils of your measures daily, and they see no prospect that they ever will be benefited by them. the physical power of the country is in their hands, and it requires nothing but public sentiment, which quickly follows public interest, and you ripen them for a state of things most of all to be deprecated. i hope we shall avert the evil by banishing the cause of discontent. besides the immediate physical evils which present themselves as probably resulting from our measures, there are other moral evils which i must dread. our government was made to secure the happiness of the people, and every thing which even remotely is calculated to impair their moral sense, will have an effect upon their situation. when the people shall become attached to principles inconsistent with morality, or with their tranquil, civil pursuits, their prosperity and their freedom are at hazard. the spirit of conquest and of military glory, however fascinating, is baneful to the prosperity and liberty of every country. this spirit has shown itself in our country, of late, in an unusual degree. we have become tired of the peaceful character of our pursuits; and we want nothing but success on this first attempt to encourage us to become a great military nation, attempting conquest in every quarter. whenever that happens, we shall share the destiny of other nations. when the same spirit and the same councils prevail, the misery of the mass of the people is the support of the national glory. one of the evils which i dread, as attending the war, and in my opinion not the least, mr. chairman, is, that we have united our exertions with the efforts of the great destroyer of mankind, who, having prostrated the independence of almost every nation on the continent of europe, has drawn us into our present situation, to assist him in humbling his remaining enemy, whose destruction is, above all others, nearest his heart. i do not believe that gentlemen are so far lost to all sense of their country's interest, as designedly to unite the destiny of this nation with him, who lives only to destroy. i believe them, when they declare that such is not their intention. but we are united in fact. his ostensible object is the liberty of the seas: so is ours. his successes are our successes, and his defeats are our defeats. being thus associated in fact--having one common object--if the war continues any time, we shall be associated in name also. when pressed beyond our present expectation by our enemy, we shall not make any difficulty in submitting to arrangements which may appear to us advantageous, but which are calculated to fasten us to the car of the conqueror. we may want men to enable us to obtain the object of our offensive operations in the north; france can furnish them. we may want ships to defend our coast; we can obtain them from the same quarter. but, for these things, we must stipulate an equivalent; and what can that be, but to unite in striking england from the list of independent nations? mr. robertson.--mr. chairman, i am well aware that the house will listen (if it listens at all) with much reluctance to a further discussion of the subject under consideration. nevertheless, it is my intention explicitly, but concisely to state some of the reasons, which influence me to support the measure proposed; some of the views connected with them, which command my approbation, and induce my aid. sir, i propose to make a few remarks on the bill itself, and subsequently, without following gentlemen in the wide and expansive range of argumentative, declamatory, and defamatory eloquence, in which they have thought fit to indulge, to reply to some of the observations which struck me with most force, and which my memory still retains. the honorable chairman of the committee on military affairs is entitled to the thanks of this house, and of the nation, for the able and lucid exposition he has given, of the plan intended to be pursued by the government in the prosecution of the war in which we are engaged, and of the objects for the attainment of which an increase of the military establishment is deemed necessary. what is that plan, and what are the objects in contemplation? the power of the nation is to be called out; a portion for a defence of our seacoast and extensive frontier; the residue to be sent forth to battle against our implacable foe, to drive him from the american continent, and thus to insure our future peace, if not our union and independence. these objects are avowed, and efforts and energy are necessary to their success. the propriety of defending our country can be denied by none. this proposition is clear. even the gentlemen on the other side of the house (as it is fashionable to speak) do not oppose it. for myself i do not hesitate to say, it presses itself on my feelings with irresistible force. when i take into consideration the exposed situation of the people whom it is my pride and honor to represent, when i view them surrounded by numerous and warlike tribes of indians, skirted by strongholds in the possession of a nation devoted to our foe, containing in the bosom of their country a class of beings always on the watch to overwhelm them in ruin, i lose sight of other considerations, and am compelled to urge, as i do most earnestly, that no obstacles may be thrown in the way of our complete protection. i have lived for some years in the country to which i have called your attention. i have not been altogether an inattentive observer, nor indifferent to its interests. the neglected state of the militia under the territorial government, its present unorganized and unarmed state, have not escaped my notice. but we must "blame the culture, not the soil." the inhabitants are brave, expert in the management of the horse and in the use of arms. the materials are good. it is unnecessary to dwell on these, or to mention other circumstances of an internal nature. suffice it to be observed, our situation is insecure. i have stated, sir, that we are surrounded by numerous and warlike tribes of indians. i will not recount their numbers, nor blazon their powers of doing mischief. those facts are too notorious to require repetition. i have stated that strongholds in our immediate neighborhood are in the possession of a people devoted to our enemy. the spaniards on our eastern frontier are under their perfect control. they considered the english as fighting for the independence of spain, their native country, their religion, and their king. in their towns an extensive british trade is carried on, and from their ports, where they refit, issue forth the armed vessels of that nation to the annoyance of the commerce of our country. the indians too are excited against us. on my journey from new orleans to this place, passing through the creek confederacy, i received certain information that the spanish commandant at st. marks had assured them that their friends the british were expected soon in considerable force at that place and at pensacola, and that they should be furnished with arms and other munitions of war to be used against the americans. sir, humanity to that people, as well as the irresistible claims we have to protection, require that a force should be stationed on the mobile and mississippi sufficient to prevent the effect of british and spanish machination, or to throw back on themselves the evils of hostility. i now proceed to examine some of the objections which have been made, not to the bill, but to the further prosecution of the war. the war is denounced as unconstitutional, cruel, the effect of french influence, and as intended to place james ii. on the throne of america. in making the first objection, gentlemen could not have been serious; they could not have expected that it would have been deemed worthy of an answer. the power to make war belongs to all nations; is of the essence of government; but the constitution of the united states gives it expressly, in so many words: "the congress shall have power to declare war, to raise and support armies." whether the war be defensive or offensive, depends on circumstance and accident, but cannot affect the right. if war be defensive and offensive, still the whole is equal to its parts. but to what does this doctrine lead? do gentlemen believe it to be true? then it becomes their duty to move for the appointment of a committee to inquire into the circumstances of the capture of the macedonian, and if it be discovered that she was taken at more than a marine league from the shore, to cashier the american officer, declare the attack and capture unconstitutional, and restore the vessel to her former master. then an enterprise, giving rise to a new era in maritime history, and entwining round the brows of the united states a wreath of imperishable laurel, turns out to be a violation of that instrument on the sacredness of which depends the union and happiness of america. the war is not unconstitutional, nor can it, by any possibility, be so considered. but it is said that, as the orders in council are repealed, the question of impressment is the only one in controversy between the united states and great britain; and, on the subject, the honorable gentleman from north carolina, (mr. pearson,) has, without difficulty, settled principles about which jurists have differed in opinion. he contends that individuals cannot divest themselves of their allegiance; that the right of expatriation does not exist; that the practice of naturalization is wrong. these opinions are as erroneous as they are repugnant to every principle of human liberty, and owe their origin to feudal times and feudal states; times and states, the prolific sources of the vilest principles in politics and morals. i believe that every civilized nation under the sun is in the practice of naturalizing foreigners. the omnipotent parliament of great britain exercises this right. the rights of all independent nations are equal. whatever course great britain pursues in relation to the subjects or citizens of other countries, these countries are authorized to pursue in relation to the subjects of great britain. whatever her admirers may say to the contrary, if she does not acknowledge, she is compelled to act in conformity to this principle. where is there in her history an example of her punishing as a traitor, a briton naturalized by a foreign government, although found in arms against her? if a subject could not divest himself of his natural allegiance; if once a subject always a subject, were true, how is it that napper tandy was suffered to escape punishment? why was he not hanged as a traitor? he was born in ireland, became a french citizen, served in war against his native country, was taken, tried, and found guilty of high treason; but when a terrible retaliation was threatened by france, in the event of his execution, that nation, which never yields to threats, restored him to his then adopted country. but gentlemen are opposed to the further prosecution of the war. do they contend that the causes which rendered it necessary have been removed? have we obtained the objects for which it was commenced? is the new and before unheard-of system of blockade abandoned? a system which, under the pretence of being a military measure, was converted into a commercial scheme beneficial to the belligerents, and destructive alone to the rights of the neutrals. have our citizens been restored to their country? is any disposition evidenced to omit tearing them from their homes and families in future? what will be the consequence of laying down our arms, of shrinking from our present attitude? we are at the feet of great britain: and after having for years attempted in vain to obtain justice, we are to recommence fruitless negotiation. admit that we are unable to enforce our demands, to support our independence, that we cannot carry on war, that the friends of the british government in this country (to use their own expression) will not permit us; in such a situation, with such admission, to expect justice would be folly in the extreme. england would return to her habitual spoliations, would re-establish that state precisely the most beneficial to herself, the most injurious to us: infinitely better to her than peace on fair terms, for then the opportunity would be lost of feeding and enriching her navy at our expense; better than war, as the numerous prizes brought into her ports of late very clearly prove. formerly the losses were exclusively ours. yes, sir, willingly would she return to, and forever continue, her former career of depredation; and the next ten years would add another thousand to the thousand american vessels already carried into her ports. too long did we suffer disgrace and degradation. peace, with all its blessings, may be enjoyed at too dear a price. but yet, while it was possible to preserve it, we shut our eyes against the most flagrant injuries; we affected not to hear the loudest insults. peace was congenial to our habits, favorable to the principles of our government. it was not to be apprehended it would be, nor cannot be now believed that it was wantonly abandoned. whilst tranquillity prevailed it was wise to dwell on its advantages. now, that in spite of all our efforts we are at war, it is well to inquire whether circumstances may not grow out of it favorable to our future happiness and prosperity. the british possessions in america present themselves to our view and invite a conquest. i am struck with the contrariety of opinion which prevails among gentlemen. some of them speak of the country as barren, the climate as inclement, the inhabitants thereby scattered over the face of the territory. if this be true, it will not be considered as worth defending, and as by its loss britain loses nothing, the sympathy which she seems to have excited, and the doleful jeremiads to which her anticipated disasters have given rise, are as unnecessary as they are misplaced. but others say, no doubt from its importance to its european sovereign it will be defended to the last extremity; that the united states cannot take it; that the army we propose to send into the field will prove insufficient. when gentlemen differ so widely, no satisfactory conclusion can be drawn from their opinions. sir, canada will be defended, and it is from a belief of that fact, and from a knowledge of the force which great britain may bring into the field, that the troops now demanded become necessary. we have heard an estimate of that force too often to be again repeated. it has lost nothing of its magnitude and importance. its valor has received the highest praise, and we are triumphantly asked if we expect to intimidate great britain. sir, none but cowards calculate on the cowardice of their foe. we do not expect to intimidate her. we expect to meet her armies in the field and to vanquish them. the power of britain must be extinguished in america. she must no longer be permitted to corrupt the principles and to disturb the peace and tranquillity of our citizens. our frontier inhabitants must not be kept in dread and danger from her indian allies. and never shall we be secure among ourselves, and exempt from the mischievous intrigues of europeans, until european power is expelled across the atlantic. the gentleman from massachusetts says, that canada entered into the scheme of the war. it certainly does now enter into the scheme of the war. sir, no citizen of the united states would have given his consent to an unprovoked attack on that country merely for the purpose of getting possession of it. but i do, for one, rejoice that, under present circumstances, we thus have an opportunity afforded us, not only to make our enemy feel our power, but to drive him from this continent, and to remove one of the most frequent causes of war among nations--neighborhood and contiguity. the evils of peace, on the terms of gentlemen in opposition, cannot be borne. let us then, with firmness, persevere in the contest in which we are engaged, until it can be terminated on principles compatible with the rights and honor of the nation. the committee now rose, reported progress, and obtained leave to sit again. tuesday, january . _additional military force._ the house again resolved itself into committee of the whole, on the bill to raise an additional army of twenty thousand men, for one year. mr. emott addressed the chair as follows: mr. chairman: i mean no common-place remark, when i declare to you, that i address you on the subjects which have been brought into this debate, and as i think properly so brought, with great reluctance. my general deportment since i have been honored with a seat on this floor, is sufficient evidence to you and the committee that i feel an unwillingness to mingle in the war of words which is carried on here. there are causes which add to this repugnance on the present occasion. the debate has been continued for such a length of time, and in part has been conducted with so much asperity, that the minds of all have become fatigued, and the passions of many inflamed. i know, and i duly appreciate the difficulties which, under such circumstances, surround and face the speaker. but, sir, there are considerations of public duty, and individual propriety, which urge, nay, demand of me, to ask your patience, and the indulgence of the house, while i present to you and to them my view of the great subjects involved in this discussion. mr. chairman, i am aware that, in the discussion i am about commencing, i shall render myself obnoxious to the wit of gentlemen who think that, to bring into view other topics than those which arise out of the details of the bill now on your table, is to go beyond the range of legitimate debate. the bill contemplates the raising an additional military force of twenty thousand men; thus increasing the military establishment, or the standing army of the country, to upwards of fifty-five thousand men. now, sir, with the details of this bill i have nothing to do. nay, i will confess to you that i like the bill as it stands, providing for enlistments for one year only, better than i should were it amended, as has been proposed, by prolonging the terms, precisely for the reason that the force will be less efficient and dangerous, and more under legislative control. i meddle not with the fitness of the instrument. that is the business of other men; but, being opposed to the continuance of the war offensively, as i was to its commencement, i cannot consent to grant any further force to carry it on. the only check, or control, which the legislature can constitutionally have over a war after it is begun, is in withholding the means; and, in voting the means, either in men or money, every member of the legislature ought to be satisfied of the necessity of prosecuting the war. according to my best judgment, sir, this war was improperly commenced, and it is unnecessarily continued; and i shall now proceed to explain the grounds of that judgment by an examination of the causes of the war, as they existed at its commencement, and as they now remain. as this is the first time the subject has been brought into debate, and, indeed, the earliest opportunity which has been allowed, of an open discussion, i am sure i shall be pardoned for going into detail, if i even should be tedious, as i know i shall be uninteresting. it is a right which i think i may claim, to state distinctly my reasons and motives for the votes which i have given, and may give, in relation to the war, after what has been said in this house, and out of it, about the opposition to the views of the administration. in making this examination, i shall pass in review, in as brief a manner as possible, the three great subjects of complaint against great britain; her orders of blockade, her orders in council, and her practice of impressment. but for one or all of these, the war certainly would not have been declared; and i may assume that, for but one or all of these, the war ought not to be continued. i cannot, indeed, but recollect, that the gentleman from louisiana has mentioned the conquest of canada, and of the floridas, as causes for the continuance of the war. as respects the canadas, i have heretofore understood that their reduction might be a consequence of the war, but never until now did i know that it was to be shifted into a cause for carrying it on. and, in regard to the floridas, i will not consent that their conquest should, in the existing relations of this country, be either a cause or consequence of war. i will confess to you, that an invasion of the colonies of spain at this time, under the stale excuses of convenience or necessity, strikes me with abhorrence. it is not only against the genius of our government, and, as i hope, the character of our people, but, if persisted in, will be a foul blot in our national history. [here the speaker entered into an elaborate documentary investigation to show that the decree of blockade, and the orders in council, were not adequate causes for war at the time it was declared--and that both these causes had since ceased to exist, the orders in council having been revoked, and the fictitious, or paper blockades, discontinued.] impressment of seamen.--the injury done to our seamen under the british practice of impressment, was also made a cause of the war, and to the eye, at least, it is the only one which now remains. mr. chairman, the discussion of this subject is attended with adventitious difficulties, growing out of the times and the state of the country. the public mind, in some sections of the union, is in such a feverish state on this account, from tales oft told of bondage worse than negro slavery, and of condemnation without trial, that the person who is willing to "hear the other party," is at once branded with foreign partialities, and threatened with the trial by mob. besides, sir, it is intimated that a negotiation is to be had, or may possibly be attempted, which may be affected by an open discussion of the topic. in point of duty, i feel myself called upon to take some notice of the subject, but my view of it will be less perfect than in a different situation i should think desirable. the president, in the war message, thus introduces the subject: "british cruisers have been in the continued practice of violating the american flag on the great highway of nations, and of seizing and carrying off persons sailing under it; not in the exercise of a belligerent right, founded on the law of nations against an enemy, but of a municipal prerogative over british subjects." as this does not present the case in its true light, i shall, for the purpose of fairly bringing to view the conflicting claims of the two nations, give you an extract from the letter of mr. madison to mr. monroe, of the th of january, , containing instructions for a treaty with great britain: "with this exception, (persons in the military service of an enemy) we consider a neutral flag on the high seas, as a safeguard to those sailing under it. great britain, on the contrary, asserts a right to search for and seize her own subjects; and under that cover, as cannot but happen, are often seized and taken off, citizens of the united states, and citizens or subjects of other neutral countries, navigating the high seas, under the protection of the american flag." the claim, then, on the part of the british is, that in time of war they have a right to enter neutral merchant vessels on the high seas, to search for and seize their subjects, being seamen. on our part it is, that on the high seas the flag shall cover and protect all sailing under it, whether british subjects or american citizens. these are distinctly the claims of right on the part of the two nations, and i shall so consider them, without regard to practice apart from right. one or two remarks, sir, before i enter upon the subject. the first is, that i do not mean to moot the point, relative to the rights of our naturalized citizens, or the extent of our duties towards them. but this i will say, that i am willing to give them all the protection which the situation of the country and its true interests will justify. i know that the unruly passions and the meddling dispositions of some foreigners, have raised prejudices in the minds of many persons against all foreigners. but i know, also, and i speak without reference to political opinions or prejudices, that among our naturalized citizens are to be found men, and many men, too, of great worth and respectability, and who are extensively useful to the country. these men have my good will, and it is certainly my wish, that they should be fostered and protected, as far as it can be done, without putting at hazard the great interests and the permanent welfare of the country. but, sir, to this class of our citizens, the claim that they are to be protected on the high seas by our flag, is really of little importance. our claim never was, and i am sure never will be, that they are to be protected, if they put themselves within the power of their former sovereign, by going to his ports, or placing themselves on his territories. and yet such is the state of the commerce of the world, that it can scarcely happen in a mercantile voyage, in this or the other hemisphere, that the vessel will not at some time be in a british port, and the crew on british ground; our right of flag will not then save our adopted citizens from impressment. for the slight benefit, therefore, to our naturalized citizens, which can arise under our claim, if established, i am sure the well-meaning and reasonable part of them will not ask the country to continue the war on their account. another remark which i wish to make is, that i am most decidedly the friend, nay, sir, if you please, the partisan, of the seamen of the country. i have no doubt that this nation is destined to be a great maritime power; and that, in times not very far distant, we are to owe our prosperity, as a commercial people, and possibly, under providence, our security, to our seamen. i am therefore a friend to "seamen's rights," properly understood and fairly enforced; but this shall not blind me to the rights of others. besides, in a war to be carried on for seamen alone, and that, too, on the abstract question of the right of flag, i can see great danger to the seamen in their just claims to protection; and, i must beg their friends, in and out of this house, to reflect before they act. as surely as the war is continued on this ground alone, so surely will seamen become unpopular, and their rights be neglected. when the evils of the war press upon the country, and press they will; when the many lives sacrificed, and the countless millions expended, shall be brought to view, is it not to be apprehended that seamen and their claim will be remembered, only as the cause of the scenes of expense and blood through which we are to pass? it is not dealing fairly with our seamen, to make them the scape-goats of this war. the british then claim the right, in time of war, to take their seamen out of neutral merchant vessels on the high seas. _is this claim a novel one?_ that the claim is novel, is certainly intimated by the committee of foreign relations, when they say that the impressment of which we complain, is "a practice which has been unceasingly maintained by great britain in the wars to which she has been a party since our revolution." indeed, it has been most roundly asserted, and by many it is believed, that the british claim was made for the first time after our war; that it originated in views hostile to our commerce and maritime rights; and that in practice it is only brought to bear upon us. in truth, however, whatever may be the justice of the claim, it is not a recent one. it has, in a greater or less degree, been practised on in all the wars in which england has been engaged for the two last centuries. the instructions to armed ships are not frequently made public; but it so happens, that we have in print an instruction on this very point, given in , by the earl of northumberland, lord high admiral of england, to sir john pennington, which goes beyond the present claim: "as you meet with any men of war, merchants, or other ships, belonging to any foreign prince or state in any road where you, or any of his majesty's fleet, may happen to come, you are to send to see whether there be any of his majesty's subjects on board; and if any seamen, gunners, pilots, or marines, (whether english, scotch, or irish,) be found on board, you are to cause such of his majesty's subjects to be taken forth, and so disposed of as they shall be forthcoming, to answer their contempt of his majesty's proclamation in that kind." these instructions were modified in the reign of charles the second, so as to exclude public armed vessels, and with this modification they have come down to the present times. if it were at all necessary to the purposes of my argument, i might show that this right has been exercised both towards france and holland, long before we had existence as a nation. their vessels have been searched, and british seamen taken from them. but enough has been said to prove that the claim, if unjust, is not novel. _is the claim peculiar to the british?_ i am justified in saying that this claim, in time of war, to search for and seize seamen in neutral merchant vessels, on the high seas, has been made and exercised by every maritime nation in europe. to be more particular--i assert, and stand ready to prove, that it has been made and enforced by france as well as england, and is now. it would be a waste of time to go very much at large into the french usages on this subject. i propose to do little more than to refer to one or two french ordinances, and then show from our state papers their practical application to us. by the french laws, and they are ancient laws, the seamen of the country are all classed, and enrolled, and licensed. in , an edict was made which is still in force, declaring, that any classed seaman, who shall, in time of peace, be found serving in foreign ships, shall be sentenced to fifteen days' confinement, and reduced to the lowest wages, and serve two years extraordinary at the lowest rate; but those who, in time of war, shall be arrested in foreign ships, or passing into foreign countries, shall be sentenced to three years' service in the galleys. under the authority of this, and similar ordinances, the french have taken their seamen out of our vessels, and in some instances our seamen with them. mr. chairman, the first proof relative to the committee, is the impressment document of january last, known to the american people as the , document. the secretary of state, mr. monroe, at the close of the introductory report, says, "it is equally impossible, from the want of precise returns, to make an accurate report of the names or number of _citizens of the united states, who have been compelled to enter into the french service, or are held in captivity under the authority of that government_, whether taken from vessels captured on the high seas, or seized in rivers, ports, or harbors; the names of a few only, greatly below the number believed to be so detained, being within the knowledge of this department. a detail therefore is not attempted, with respect to this part of the call of the house of representatives." yes, sir, it is known to the administration, that some of our citizens have been compelled to enter into the service of the french emperor, while others are held in captivity by him. ask, however, for their names, and you have for answer, that all the persons detained are not known to the government, and therefore it cannot be material that you should have the names of any. say to gentlemen, here is a case of american rights violated, and you will be told, that the injury, in practice, is not of sufficient importance to justify strong measures against the french government. be it so. but attempt to prove to the same gentlemen, that the practical operation of british blockades and orders in council, is not such as to require war, you will then hear, that it is necessary to fight about the principle. i have one other paper to lay before the committee, on this subject. for some years back, the information about french impressments has been general and vague, or altogether withheld. formerly this was otherwise. in a report respecting the impressment of seamen in , made by the secretary of state to this house, on the th of february, , we have the names of upwards of twenty american citizens, taken out of american vessels, on the high seas, by french privateers. we have more, sir. this same report states, that two french seamen named lewis had been impressed from on board the american ship bryseis by a french commodore's ship; that francis gibbons, a native of france, but married and resident at new london in connecticut, was impressed from the american ship edward, at rochefort, by authority of the french republic, and put on board a french ship of war: and that henry doughty, an american, was impressed at sea from the american brig elsa by the french frigates lapancy and thetis. i could instance other cases, but these are sufficient to show, that neither the claim nor the exercise of it is peculiar to the british. if this right, or claim of right, however, is made a mere pretext by any nation to seize and detain our seamen, i am willing to allow that it would be a cause of war. but even in this case, war ought not to be waged until we have done our duty to our seamen and the offending nation, by making suitable regulations to prevent the employment of the seamen of such nation. have we done this, as respects great britain? perhaps some such regulation is to be found in the law which defines what vessel is an american vessel, and which, as such, is entitled to hoist our flag. look at it, sir. according to the act of december, , an american ship is one wholly owned by an american citizen, and commanded by a person also a citizen. the crew may be all foreigners--all englishmen, if you please--all english deserters. in this, therefore, we find no security to the british government. but, we have also the law of may, , which provides, that the collectors may register seamen calling themselves american, and grant certificates of citizenship. out of this law, it is presumed, has grown the practice of granting protections, as they are called--papers procured from notaries and magistrates, ofttimes on the most barefaced perjuries, and always considered as a species of negotiable property for value received. sir, these protections, in their abuse, are a scandal to the nation. it has made false swearing an employment, and the granting of false papers a business. the price of such a paper is as well known in the great seaport towns as is that of your stocks. all ages and complexions and tongues may have this badge of citizenship, by paying the charges in such cases provided. if this, however, was not so; if protections were only granted to real americans; it is difficult to see how this is to prevent the employment of british sailors. it is not necessary that the persons navigating an american vessel should have them. this act of ours was presented to the british government by mr. king, in january, , and lord grenville, on the th of march following, in a manner highly conciliatory, and certainly with much force, stated specific objections to the law. the executive, when in july last he answered the call of the senate for papers relative to impressments, omitted this letter of lord grenville, but he gives a letter from the then secretary of state, to our minister at the british court, of the third of october, , in which the force of the objections seems to be admitted: "lord grenville's observations on the act of congress for the relief and protection of american seamen, present difficulties which demand consideration at the ensuing session." nothing was, however, done at that or any future session. in truth, we have done nothing to prevent the employment of british seamen in our public or private ships; and they are to be found in both. and yet, with this fact staring us in the face, we are called upon to say that the war is altogether just on our part! it will probably be urged that the british practice under this claim, in its application to us, was sufficient to prove that the reclamation of their seamen was not so much the object of the british government, as the seizure of our seafaring citizens: that it had become so outrageous as not only to justify, but to require war. without, sir, meaning to excuse or to palliate the taking even the cabin boy, if done knowingly and wittingly; and being willing to admit, that about the period of the attack on the chesapeake, we had much and serious cause to complain on the subject, i must be permitted to say that i have not evidence to satisfy me, that when we declared war, the practice of the british was such as to prove that the claim on their part was a mere pretext to take our sailors. in truth, i believe, if the administration have not deceived themselves on this subject, that they have attempted a gross deception on the public. the instructions given at this day, by the british admiralty to a naval commander, on this subject, directs him, "when he meets with any foreign ship or vessel, to send a lieutenant to inquire whether there may be on board of her any seamen who are the subjects of his majesty; and if there be, to demand them, provided it does not distress the ship; he is to demand their wages up to the day; but he is to do this without detaining the vessel longer than shall be necessary, or offering any violence to, or in any way ill-treating the master or his crew." mr. monroe may perhaps recognize in this, the instructions shown to him after his arrangement, and of which he declared himself satisfied; but whether he does or not, it must be conceded that it provides for a moderate exercise of the right. the person who is to make the search is an officer of some standing; he is only to take seamen who are british subjects, excluding thereby, not merely our citizens, but all foreigners; and he is not to take even british seamen, if, by it, he destroys the crew, or endangers the vessel. allowing the right to exist, it is difficult more fairly to regulate its exercise. but it may be urged that the practice of the british commanders does not correspond with these instructions; that they search and seize at large, according to their will and pleasure. i know, sir, that the habits and education of a military man, not unfrequently make him act as if power and right meant the same thing: and i, therefore, have no doubt that there have been abuses. but i do most conscientiously believe that these abuses have been greatly magnified, and are, even by the well meaning, vastly overrated. i am aware that i shall be referred to the impressment document of last session. this document, sir, is so illy understood, and has been the source of so much misrepresentation, that i must be allowed slightly to review it. the secretary, in the report says, that the list transmitted had been received from our agent at london, and "contains the names of american seamen and citizens who have been impressed and held in bondage in his britannic majesty's ships of war, for the several quarters of and ." the list is headed, "a return or list of american seamen and citizens who have been impressed and held on board of his britannic majesty's ships of war, from st of april to the th of june, inclusively," and so of the other quarters. now the plain meaning of this is, if any meaning it has, that the persons whose names were thus sent to us were impressed and made to serve on board british armed ships, at some period in the years and . indeed, this has been so stated in this house, and in the administration prints. and yet the most superficial examination will show that this is not true. let me read to you one or two names: " . david wiley." in the column of the "result of applications and remarks," we have this explanation of his case: "impressed on shore at new brunswick, and taken on board the plumper, was detained two days, when the commander put him on board a vessel bound to aberdeen, from thence worked his passage to london, and appeared at this office th august, ; is evidently an american. discharged." here, then, we have a man who was not on board a british ship in , and whose "bondage" did not probably continue more than two days. again, " . richard butler, representing himself of petersburg, pennsylvania. impressed at the cape of good hope, from the mercury of baltimore, and detained on board the garland." remark: "remained on board the garland two months, then draughted to the tremendous, in which he served two and a half years, was then discharged; has never received his wages or prize-money; says he was well used on board both ships. was discharged as an american citizen at the cape of good hope; his pay and prize-money lists were given to the consul at the cape. discharged." this man, therefore, according to the statement of our consul, so far from having been impressed and held on board a british ship in , had been impressed in , and discharged in . i might, sir, give you many other cases equally strong, but these are sufficient to prove that, by design or mistake, the document is wrongly headed; that the persons named in the list were not all on board british ships in and ; and, therefore, that, in its general results, it does not show the state of the british practice in those years. in truth, the list is nothing more than the return of the names of persons who, within the year, had applied to mr. lyman, our consul and agent for seamen, for protections against future, or for his aid in getting released from present impressment. it was his duty, as i do not doubt it was made his interest, to receive all applications, and when necessary, to lay them before the proper british authority. jew and greek, turk and christian, the growth of our own soil, and the produce of other countries, all threw themselves upon mr. lyman, and he, laboring in his vocation, granted patents of citizenship, or made his claim on the british admiralty. sir, there is not a man who, in practice or by inquiry, has made himself acquainted with the manner in which this business is transacted, but knows that many foreigners who never saw this country, or sailed under its flag, have attempted, by application to our agents abroad, to shield themselves against british impressment. the secretary of state, mr. monroe, needs no information on this subject, having himself resided in london as our minister. it was the duty of our agent to send home some account of his proceedings, and i have no objection to his making such a list as we have before us. but i do object to its being palmed on the american nation as a true history of british impressments affecting our people and nation. i pray you look at this list. in the year commencing in april, , and ending in march, , we have about nine hundred and forty names; and of these, about seven hundred are given with blanks in the columns for the "towns and states of which they represent themselves to be citizens"--"when impressed"--"where impressed"--"ships from whence taken"--"nations"--"masters." the time and the result of the application are only given. and from these entries in mr. lyman's book you are called upon to admit that the applicant was an american, and that he was impressed in the year by the british, on the high seas, out of an american vessel. really, this is asking too much. mr. chairman, i have examined the list from april, , to april, , with great attention, for the purpose of ascertaining the number of impressments which took place in that year, and i will now make to you one or two statements, which may cast some light on the subject of the british practice. the number which, by the list, appears to have been impressed in that year, is one hundred. it will be understood that in this number i do not include those whose names are carried out in blank, as has been stated. it is uncertain whether such persons ever were impressed; and, at all events, it is fair to presume, that their service on board british ships had commenced before , or otherwise there could be no difficulty in giving dates. of the one hundred, seventy-six were discharged, and six had deserted, leaving less than twenty to be accounted for. another result: of the persons thus taken, fifty-seven were impressed on shore, and forty-three at sea. again: thirty of these seamen, when impressed, made part of the crews of british vessels, and thirty-four american vessels; and of the thirty-four, twelve were taken on land; leaving about twenty-two persons taken from american vessels on the high seas. it is possible, sir, that in these statements i may not be perfectly accurate; i am certain, however, that i am substantially so. i do not mean to represent that this is a full account of all the impressments which took place in ; on the contrary, i admit that it is not. many impressments were certainly made of persons undeniably british subjects, who would scarcely think of applying to mr. lyman, and will not, therefore, be found in his book. many persons, also, having a right to his interference, were not then known to him. my object in making these explanations, was to show that the , document does not furnish such strong evidence of british aggression as has been supposed. the number of our seamen impressed by the british has been so variously represented, that i have, from motives of curiosity as well as duty, been desirous to arrive at something like a reasonable certainty on the subject. we hear of ten, twenty, nay, forty thousand of our citizens, confined in the floating dungeons of great britain, fighting her battles against their will. the evidence of this, however, is only to be found in the imagination of gentlemen. it is the old story over again, of the "six men in buckram." in part representing the greatest commercial state in the union, it may be expected that i have some personal knowledge on this subject, but indeed i have none such to give. is there not in this some proof that the evil has been magnified? i have sought for information in quarters where only it is to be found, among the shipping merchants and ship owners of the country. i will now furnish you with the opinion of an intelligent gentleman from marblehead, whose means of information are ample, and whose veracity will not be doubted. i mean my friend from massachusetts, who sits before me. (mr. reed.) he has favored me with this statement. "in answer to your inquiry relative to the seamen of marblehead, i have to remark that the average shipping of that port, for the last twenty years, may be estimated at about , tons, of which it is fair to calculate ten thousand tons were employed in foreign commerce, and the residue in the fisheries and in the coasting trade. allowing six men to every hundred tons, which is the usual estimate, it gives an average of eleven hundred and seventy-six seamen in all, and six hundred in our foreign trade, each year; the number of seamen, therefore, employed from marblehead for the last twenty years, must have been considerable, say five thousand. i have resided at that place nearly twenty years, and, during the greater part of the time, have been actively engaged in commerce. according to my own recollection, aided by that of others who have the best means of information, i do not believe that twenty of the seamen of marblehead, native or naturalized, have been impressed by the british within the twenty years, and it is not known that one has been demanded without being released." as there is no reason to suppose that marblehead has been more fortunate with respect to impressments than other places, we have here something whereby to form an estimate of the number of our seamen taken by the british. my own conviction is, that the american seamen, impressed and held by the british, at the commencement of this war, did not much exceed five hundred in all, and certainly did not amount to one thousand. permit me, sir, to mention one circumstance which speaks loudly on this subject. if the practice of impressment had been as outrageous as has been represented, it must have fallen with great force on the eastern states, as it is there the mass of our seamen are found. we are then to expect much feeling and passion on this account. the war must be popular when the cause of it is brought home to every man's door. no such thing, sir. the war is confessedly odious there. it is in states where seamen never grew that the war has its strongest advocates. it is there that you principally find the dark pictures of sailors' sufferings, and hear the loud and long appeals to the sympathies and passions of the people about seamen's rights and seamen's injuries. i have now, sir, finished the remarks which i intended to make on the british claim and practice of impressment. we have for years past had so much idle declamation on the subject, that a dispassionate investigation of it appeared to me to be called for. in the course of these remarks, i have attempted to show that the claim was neither novel nor peculiar, and it is not wholly unsupported by reason; that our true interest calls more for a fair regulation of the practice than an abandonment of the rights; and that the conduct of the british, of late, has been such as to warrant an opinion, that an arrangement may be made, having for its object a proper regulation of the practice, leaving the rights of both nations, whatever they may be, untouched. sir, with this view of the subject, it is not possible for me to consent to the adoption of measures, having for their object the further prosecution of the war offensively on our part; and i cannot, therefore, vote for the bill on your table. the war has not yet assumed a character. we have, indeed, added much, and are about to add more, to the public debt. already a portion of our citizens are burdened with oppressive exactions in the form of duties, and heavy taxes are staring all in the face. but yet our homes and altars remain safe and unpolluted. let us seize this moment to give the nation peace, and the people happiness. this is the appointed time, and if we do not improve it, i fear my country is to suffer in its prosperity and its institutions. for heaven's sake let us pause! mr. macon said after failing in his attempt to amend the bill, he had considered it of very little importance; indeed, in its present form, he was not anxious whether it passed or not; and he had intended not to have troubled the committee on the subject, but the strange course which the debate had taken had called him up almost against his own consent. he could truly say that he would not have offered a word to the committee, had not those who oppose the bill have brought into the discussion french influence, operating by a sort of magic on every act of the executive. the conduct of the executive had undergone the strictest scrutiny by these gentlemen, and their own arguments would, in his opinion, convince every impartial man, that it had been perfectly fair and upright to all foreign nations; the least attention to the documents, which have from time to time been published, would also convince every man of it, and satisfy all that the great object of the government had been peace, and that peace was maintained until it could no longer be done without surrendering almost every national right worth preserving. mr. m. said he would endeavor in his observations to follow the example which had been set the last two days: not to utter a word to wound the feelings of any one; nor would he refer to the documents, because every member possessed them, and they had been published for the information of the people; and he was sure that the committee must be tired with hearing a sentence here, and a paragraph there, read from them. the true way to understand them was to read the whole. but he had never been in the practice of making many quotations from books or documents, and he thought it unnecessary to make any now. he was clearly of opinion that the gentlemen who were opposed to the administration had the right to say whatever they thought of it, and to select the subject on which they would speak; and as they had made the selection, he hoped they would have an opportunity now to deliver their sentiments. he, however, regretted that they had selected this bill; because, of all the bills which may be brought before the house the present session, not one, he thought, would require despatch more than this. the loss of a day now may be the loss of the next campaign. he had expected that this general debate, which seems to include every thing but the bill, would have been delayed until the loan should be under discussion. the points made in the debate seem to be: impressment; the right to expatriate; the right to naturalize; and french influence; neither of which have any connection with the bill, which is to raise troops for one year. sir, said mr. m., i will not retort a charge of british influence, and so balance one assertion against the other, because i do not believe that there is much of either in the nation; but if i was to say there was none, i should not say what i believe. people may honestly differ in opinion as to the effect which the success of england or france over the other might have on the interests of the united states, without being under the influence of either; and this, no doubt, is the case with thousands. i will, before i proceed further, notice some of the observations made by the gentleman from new york, (mr. emott.) if i have not understood him or any other gentleman correctly, i hope that i shall be corrected; because it is my sincere desire to state their statements fairly; and it is not always possible to take down their own words. he said, if there was any english influence, it was the influence of locke and sidney. as well might he have spoken of the influence of any other patriots who lived before us. their influence will be respected wherever their works shall be read; but that sort of influence is not the influence of which we have heard so much, and which i intend hereafter to notice. he also mentioned the influence which drove the first settlers to plymouth. yes, sir, that influence was truly british, and that sort of influence great britain has been exercising ever since the first settlers, by their own industry and exertions, got into a situation to be useful to her; and that influence, or rather that persecution, compelled the first settlers of carolina to leave the other provinces, and to settle a second time in the woods, and, as soon as they were able, to pay taxes. that same influence followed them, and made their condition much worse. it pursued the people in every part of the continent, until they declared themselves independent; and, from that day to this, she has not treated the united states as she has treated other independent nations. mr. chairman, i was astonished when the gentleman told us he was not a friend to standing armies; and, almost in the same breath, said that, at the last session, he voted for raising the twenty-five thousand men, and that he did not mean to go to war when he gave the vote. for what purpose, then, could they be wanted? experience had already shown that the old establishment was quite sufficient in time of peace. indeed, a very considerable part of that was raised soon after the affair of the chesapeake, and under an expectation that war would follow, and not for a regular peace establishment. the same gentleman told us, that impressment by the british government was no new thing. this is certainly true as far as regards her own subjects, and from her own vessels; but the systematic impressment of foreigners from foreign ships, is a new thing; and that, too, when the men and the ships both belong to the same nation. that government never attempted to impress spaniards, dutch, french, swedes, or danes, from vessels belonging to the same nation with the person; and it is this new doctrine, which operates solely on us, of which we complain. the question between us and england has nothing to do with the doctrine that free ships shall make free goods, or free men, if gentlemen please. and why draw that into the debate on the impressment of american citizens from american vessels? no law or precedent can be produced for this abominable and wicked practice. it was never attempted to be justified, notwithstanding impressment is no new thing with her. every sovereign, said the gentleman, has a right to the service of all his subjects in time of war. but this right is like some others which sovereigns claim; it is without a remedy. of what avail is the proclamation of the prince regent in this country, ordering the british subjects home? none. many of them are still here, and, probably, will remain until the termination of the war, and the british government will never dream of punishing one of them for disobedience. but, admit this right in sovereigns to its fullest extent, and it does not give one sovereign the right to impress the citizens or subjects of another; nor does it justify such an act; of course it does not touch the act of which we complain; that is, the impressing of american seamen from american vessels. it is curious that, throughout this whole debate, there seems to have been drawn a distinction between the rights of a man who cultivates the soil, and of him who follows the sea, and that this distinction should have been drawn by those who claim to be the champions of commerce and of a navy, and who have told us that agriculture and commerce were inseparable. ought it not, then, to follow, that the rights of those employed on land or water should also be inseparable? this strange doctrine, as was observed by the gentleman from louisiana, (mr. robertson,) may dust the eye, but cannot stagger the understanding of any one. the same gentleman said, that we had taken no measures to exclude british seamen from american vessels. for what purpose were protections given to american seamen? surely to protect them against impressment, and to show that we had no desire to protect others; and what more ought to have been done, he did not tell us. i ask, did any nation ever do more? besides, has not the united states, over and over again, offered to make an arrangement with england on the subject of sailors, which should be satisfactory to both, by securing to each the use of their own sailors? and has she not always refused to make any arrangement about them? and it may be fairly asked here, what measures great britain has taken to prevent her officers from impressing our seamen? none that i have heard of, and she is the aggressor. we have not injured her, while she has been impressing our sailors whenever she wanted and could find them. if the united states wanted sailors ever so much, they could not impress one of hers, and she knows this; and she would not suffer one of them to be impressed by any foreign power; and we must determine to defend the rights of ours, or it will be idle to talk about navigation, commerce, and a navy. indeed, if commerce and agriculture be inseparable, you must defend the rights of the persons concerned in both, or both must be injured. there are no neutrals able to carry our products to market, and if you will not protect your seamen, they will not carry them. it is worthy of remark, that, for twenty years past, the government of the united states has been trying to settle the question of sailors with great britain, and that every attempt has failed, and that it is just now discovered that we have always begun wrong. my colleague (mr. pearson) and the gentleman from connecticut, (mr. pitkin,) it appears, could settle this great question without much difficulty. if they can, i wish most sincerely they would. i am, however, apprehensive that they are a little mistaken, because general washington, when president, having major pinckney, now major general pinckney, for minister at london, tried without effect. mr. adams renewed it with mr. king for minister; mr. jefferson with colonel monroe and mr. pinkney, now the attorney general; and mr. madison, with the last named pinkney. all these presidents and ministers, with the aid of every cabinet, have failed. every description of political opinion, with the greatest talents, have been employed and done nothing. at the end of twenty years we have gained nothing, and lost our labor; the question is as unsettled as ever; and we have been worsted in this way, that, while we were negotiating, they were impressing seamen. we have been told by my colleague, that it is not the right, but the abuse of impressment of which we complain. it is true, sir, that we do not complain of great britain impressing her own subjects; she may do as she pleases with them; that is no concern of ours; all we ask of her is to keep her hands off our people; and we deny her right to impress american citizens; and if the abuse be the impressing them, of that we do complain, and not without just cause, because she has impressed many of them, and compelled them to fight her battles; and i have understood, after we had declared that war existed between her and us, that she detained those she had before impressed as prisoners of war, and this may be a part of her public law. indeed, we have heard much about universal law and public law, neither of which, from the statements made, seem to have much regard to right or justice, which ought to be the foundation of all law. one universal law seems to be, that sovereigns can command their subjects to return home in case of war; another, that no person can expatriate himself; and great britain is no doubt willing to acknowledge another, by which she might impress sailors from all the world. as to the first, we need not trouble ourselves about it; and the second, the united states have not acknowledged; and we are now contending against impressment; and permit me here to observe, that the republicans have always considered the impressment of citizens a more serious injury than the spoliation of property. i must return to porcupine's paper,[ ] which, as well as i now recollect, never contained a sentence in favor of the revolution, or much in praise of the constitution, if it was praised at all; no outrage was committed which it did not approbate; a few of the outrages of that time shall be stated: the rogue's march was played under the window of the man who drew the declaration of independence, the man who first took up arms after the fall of charleston, and whose body had been almost riddled in defence of his country, was a member of congress, and was insulted at the circus. another member, of no common cast of mind, was insulted at the theatre; a man who will do his duty in whatever situation he may be placed. another, returning home with his family, was insulted and almost mobbed; he is now one of the cabinet, mentioned by the gentleman from massachusetts, (mr. quincy.) if i was not almost exhausted i would give some of the details of these then fashionable transactions. i will only add, it was nothing in those days for a few men to whip a printer whose publications they did not like. all these outrages and violations of law, it is believed, were not only approved by the editor of the before-named paper, but other federal papers also. this same editor claimed to have more subscribers for his paper than any other editor in the union. and after he returned to europe, he wrote and published about some of his former supporters. had this have been a french editor, and acted toward the federal party as he did toward the republican, and the subscribers to his paper republicans, could not those who look at every thing now done to find french influence, have had as good a field to hunt in as any they have yet found? at the very time these events took place, the majority talked as much about french influence as the minority now does; they had clues, sub-plots, ocean massacres, and a hundred other equally ridiculous and unfounded tales, which circulated for a day. i have mentioned these things not with an intent to wound the feelings of any man living, but with a view of trying to persuade those who talk so much about french influence, to look at both sides of the question about foreign influence; and if they will, i hope we shall never hear of it again in this house. mr. genet, when he was minister of france, began to intrigue, for which he was dismissed. mr. liston, when he was minister of england, began the same work, for which he was not dismissed. if the republicans had then been in power, and liston a french minister, could not a strict examination of the documents have placed it as easily as many other acts have been to french influence? while all these things were doing, and many others quite as strange, the gentlemen call themselves the followers of general washington. if they be truly his followers, they ought to adhere to his principles, and attend to his last advice. every act of his went to perpetuate the union and to attach the states to each other. i fear the sentiments contained in his farewell address to the nation are getting out of fashion with those who claim to be his exclusive followers; or why do we hear within these walls, the foundation of which he laid for union, union, union; disunion spoken of, "peaceably if we can, forcibly if we must;" and why listen to idle and unfounded tales about foreign influence, which can never injure us as long as we stick to the old maxim--united we stand, divided we fall? straws show which way the wind blows! what has become of the newspaper called the washington federalist? the name was, i have understood, changed to the independent american; out of that, i believe, was raised the federal republican--all good names; but why lose the name of washington to a paper supported by his exclusive followers? and this is the first time to my recollection that they have adopted republican in their calendar. i have heard that federalism is not now the same that it was when mr. adams was president: we shall know more about this if ever they get into power again; be this as it may, every man has a right to change his opinion; it is a right which no government can take from him, and when convinced that he is wrong, it is his duty to change. but i had thought, when mr. adams was president, we were told that he followed the plan of general washington, and that he was then a favorite with the party who elected him, but a great change has taken place in regard to him. i always thought him an honest man, and i think so still. after mr. adams got out of fashion, colonel burr became so great a favorite with the federal gentlemen who were then in congress, that they voted thirty-five times for him to be president, when they must have known that not one elector who voted for him intended him for president. afterward, mr. madison was a favorite; but, after the refusal of the british government to ratify the arrangement made with mr. erskine, they examined the matter, and discovered he had not done right, and he got out of fashion. then the late worthy and venerable vice president and colonel monroe became favorites; colonel monroe got out of fashion about the time he was appointed secretary of state; and, lastly, mr. de witt clinton became a favorite. i hope he will not be injured by it, but he seems to be losing ground, as we have been told it was not his merit that induced the federalists to support him for president, but the demerit of mr. madison. this does not appear to be a good reason, because they might have selected a man from their own party, who they thought had merit. but all these things may be the doings of those who, a former member of this house called ultra-federalists; and it will be recollected that all these men became favorites, on the old doctrine of, "divide and conquer;" and it ought not to be forgotten that, when messrs. ellsworth and davie returned from france, their political friends were a little shy of them; indeed, i should not be surprised if messrs. jay, king, walcott, and dexter, should not much longer be favorites. if we may judge from the public prints, commodore rodgers is no longer one, though he, like the others, is understood to be a federalist; but these men will never say, "peaceably if we can, forcibly if we must." i would really thank any gentleman to tell me what is now meant by the party name, federalist. it is a fact on record, that general washington did not approve of self-created societies, and i have understood that some of the people who claim to be his exclusive followers, have their self-created washington benevolent societies, wherever they can establish them, and that they are political societies, and they were intended to oppose some other society; perhaps the tammany. this could not justify the proceeding. as to myself, i do not care if there was one in every three miles square in the nation, so that i am left free not to be a member. we naturalize, without hearing a complaint from any quarter, emigrants from great britain, of every trade and profession, merchants, lawyers, doctors, and even divines; to which may be added tradesmen and mechanics; they all go where they please, live among us, and take part in the politics of the day. if foreign influence could be introduced into the country by naturalizing, we should have more of british than of french; but naturalizing seems well enough for every body but a sailor, but do not permit him to become a citizen; he will be in the way of native sailors, who want encouragement; besides, we know that great britain will impress him, and we know as well, when her officers want men, they care not whether they are american or english. the native american has never complained that the naturalizing of foreigners of his trade or profession, injured him; nor has a complaint been heard from a native seaman against naturalizing foreign sailors; and we have had experience enough to know that our merchants could complain, and complain almost against their own complaint. let their property be captured, or expected to be captured, under a new order in france or england, and more complaints will be made about it, than the impressing of a dozen citizens. the situation of the merchant, when plundered, is bad enough, but his property is not taken away without a trial of some sort before a judge learned in the law, whose duty it ought to be to decide according to law; he also employs lawyers to have justice done him. not so with the sailor; when impressed, there is no learned judge to decide his case, or lawyer to have justice done; force is law to him, and his oppressor judge; he is put on board ships, and compelled to fight battles, in which neither he nor his country have any concern: deprived of the right to complain or petition; he is poor, friendless--great god! can it be possible, that we shall yield the point of impressment, for the sake of carrying on a little trifling trade by hook or by crook! all agree that we ought to fight for the rights of native seamen, and all agree that some of them have been impressed; why not all, then, join, heart in hand, to maintain their rights? is it because the british officers impress from our vessels others besides natives? this cannot lessen their just claim to the protection of their country. we have, however, been told that only ninety-three persons were impressed in one year from american vessels; if only three of them had been the sons of the gentleman (mr. emott) who gave the information, i ask, would he have been contented with the long investigation of documents, to ascertain if any of the diplomatic meanders turned towards french influence? no, sir, he would not; he would have demanded of the national government to have his children restored to his arms; he could demand this in a way to be heard. far different is the case with these unfortunate parents who have had their sons impressed; they are too poor and friendless to be heard; the rights of the nation may be abandoned by little and little, until none be left; exactly as you may take a cent at a time from one thousand dollars, until none be left. all must determine to protect american seamen on board american vessels, or not hereafter pretend to claim any jurisdiction over the vessels when they are out of the limits of the united states. if a single citizen should be impressed on american land, the whole nation would be in a flame; the right to protection is the same, whether on american land or an american vessel. it has been said that we do not act justly; that we encourage british seamen to run away, because we do not apprehend them and send them back, when they have run away from their vessels; they run away before our people see them, of course there is no encouragement to the running away. as to the sending them back, we are not bound to do it; and if it depended on me one should never be sent back, until the british ceased impressing and plundering our citizens, and i would agree that every man who engaged in the war on our side should have the right to be naturalized, though he fled from british naval tyranny. it is remarkable that, while we hear not a word said to justify england for impressing and plundering the people of the united states, that so much should have been said to prove that we ought not to have gone to war with her, and that we were wrong in doing so. this is the best way that could have been devised to keep her aggressions out of view; not to say a word about them, and talk a great deal about the hardships of war, and the taxes which must be imposed to carry it on, winding up all their lamentations for the state of the country, with, if it was not for the war, a little trade could be carried on. impressment, then, is a mere trifle, compared with this trade, and it may be that great britain understands it so, and is willing to gratify us with this trade for kin-sake, as long as we are contented to be impressed for kin-sake. the citizens who are impressed would tell her, if telling would release them, that nations are no kin. this surely has been the most unfortunate government from its establishment to the present time that ever existed; almost every thing that has been done is wrong: it was wrong to fix the seat of government here; it was wrong to place this house and the houses for the offices so far from each other; it was wrong to give paper protections to american seamen; it was wrong to have a little mercy in the revenue laws; it was wrong to repeal the internal taxes; i believe that was called oppression--though i am no prophet, i venture to predict, that to lay them to carry the war on will be wrong also; to take canada would be wrong;--indeed, it would be difficult to find any thing which has been done right, according to the modern federal creed. how are we to get things right? give up the chair you are in to one, the white house to another, and they will soon give you a sedition law which will put all right. the great discovery which these gentlemen have made, that so much has been wrong under every administration, would surprise the people, were they not this moment astonished at the discovery of perpetual motion by redheffer--two such great discoveries must add vastly to the character of the nation. the attempt to take canada is so wicked that some of the gentlemen are quite alarmed at it. we hear of the unoffending canadians, but not of the unoffending sailor; at one time they are the most unoffending and loyal people in the world, at another they are french, and not fit to be united in our government. we have heard much of the same sort formerly said about the people of louisiana, and they have become a state, without any trouble to themselves or the union. what has become of that high federal spirit which disdained to buy louisiana? where is it when canada is mentioned? the federalism which desired to conquer louisiana and keep it by force of arms, is changed when canada is the question. the outrageous conduct of great britain is as much worse than that of spain, as her impressment and plundering were worse than the refusal of the right of deposit. for one, i am willing to have canada and florida, and have them you must before many years. the situation of mobile is such as to compel you before very long to take possession of it. canada and florida would rid us of bad neighbors, and make us more happy. the committee then rose and reported the bill. the several amendments made in committee of the whole were agreed to by the house. mr. fitch again moved to strike out the th section, giving the president exclusively the appointment of all officers under the rank of field officers. the question was decided in the negative by yeas and nays. for the motion , against it . and the bill was then (half past six o'clock) ordered to be engrossed for a third reading, without a division. and on motion, the house adjourned until to-morrow. wednesday, january . _additional military force._ the bill, in addition to the act passed at the last session "to raise an additional military force"--the object of which is to raise twenty regiments of men for one year, if deemed necessary by the president to the public service--was read a third time, and the question stated, "shall the bill pass?" mr. kent.--mr. speaker, it is with great reluctance i rise to trouble the house with any remarks of mine, at a time when their patience must be so completely exhausted, by the unusual length of the debate which has already taken place upon the subject before you. the bill on your table proposes to raise an additional military force of twenty thousand men, and it has been objected to on account of its expense, and the consequent danger growing out of it to the liberties of our country. we are, sir, in a state of war; and what is evidently the course which we should pursue whilst in that situation? we should advocate and support such measures as are calculated to bring that war, justly made on our part, to a speedy, honorable, and successful conclusion. viewing the bill on your table as a measure of that description, i shall give it my support, regardless of that additional expense which gentlemen so emphatically dwell upon. nay, sir, it is better to expend the thirty millions of dollars (even if that sum was necessary) so repeatedly spoken of on the other side of the house as the cost of the war for two years, to accomplish our object, than to expend the same sum in five years, even if we could effect our object with equal certainty. however commendable economy may be in every other situation in life, in war it is inadmissible; it loses its character; it becomes parsimony: you might as well attempt to unite profusion and avarice as war and economy. all that the utmost prudence can require of you when in a state of war, is to make your means ample; lay your plans well; and to the judgment and the skill in these particulars only can you look for economy or for savings; for the want of an inconsiderable supply of men or money, a campaign might prove disastrous, to recover which would require an immense sacrifice of blood and treasure. the army has been represented as dangerous to the liberties of the country. at one moment we are told that, when it shall be completed, it will be unequal to the conquest of a petty province adjoining us, and not exceeding in population the state of maryland; the next moment we are told that it will endanger the liberties of seven millions of freemen. arguments thus paradoxical need no refutation. sir, i do not pretend to have any military experience, and i am willing to concede the point to those possessing it, that men enlisted for three or five years are preferable to those enlisted for one year as proposed by the bill; yet i feel confident that every object will be accomplished by this bill that is intended. it is not proposed to rely solely on an army of this description to carry on the war; you have nearly a sufficient military force authorized for five years, and you want the men to be raised by this bill only as auxiliaries, till the ranks of that army can be filled. with these observations on the bill before you, i shall proceed to make a few remarks upon what has fallen from gentlemen on the other side of the house; in doing which i shall endeavor to confine myself to what has not been noticed by others, or, if attended to, not sufficiently so. if i understood an honorable gentleman from connecticut correctly, who addressed you the other day, (mr. pitkin,) he said we were contending for the employment of foreigners. we contend, sir, for nothing which, as an independent nation, we are not entitled to, and which the laws of nations do not guarantee to us. what have been the propositions heretofore made by our government to great britain upon this subject? i find, by a recurrence to the correspondence of messrs. monroe and pinkney with that government, in , that we made the following propositions, the most material of which were omitted yesterday (not intentionally i hope) by the gentleman from new york, (mr. emott.) here mr. k. read the following proposals from the public documents of and . we offered-- . to afford no refuge or protection to british seamen. . to deliver them up if they took refuge among us. . to make laws for restoring them. . to aid in searching for, seizing, and restoring them. . to keep them in our prisons when requested. . to prohibit our citizens from carrying them off. . to prohibit their employment. . to make penal laws for punishing their employers. . to make it our duty to restore them. . to extend the foregoing provisions, not only to deserters, but to all seafaring people. these propositions went completely to secure to great britain the services of all her seafaring subjects, except such as were naturalized under our laws, which amounted to but few, indeed; thirteen hundred british seamen only having been naturalized since the commencement of our government, and, in all probability, an equal number of our seamen have been naturalized by great britain during the same period. yet, to my astonishment, have i heard it stated, during this debate, that our government had made no serious propositions to secure to great britain the services of her seamen. but equitable as these propositions were, they were rejected. notwithstanding, sir, our government, anxious in their pursuit after peace, have gone still further; they have, through our late chargé d'affaires in london, (mr. russell,) proposed to great britain to exclude from our naval service, as well public as private, all her seamen, including those which may hereafter be naturalized; and notwithstanding the liberality and justice of this proposal, it, like all others, has been made without producing the desired effect. and what more, sir, could have been asked of us, required, or granted, than is contained in these offers? nothing more, unless, indeed, they had asked for our independence, and, yielding to the requisition, we had granted it. when an american vessel is at sea, it is amenable to no laws but those of its own country and the laws of nations; and where, in either of these, will the advocates for impressment find their justification? sir, had not the practice of impressment been treated as a casual, a trivial circumstance, during this debate, i should not have presumed to trouble the house with my desultory remarks; and my principal object in addressing the house, was to ask their attention to a document which appears to have been overlooked, and which, if necessary, will place the abomination of that practice in colors too strong to be mistaken. here mr. k. read the following extract of a letter from the secretary of state to mr. monroe, dated january th, -- "the whole number of applications made by impressed seamen to our consul in london, between the month of june, , and september, , were two thousand and fifty-nine. of this number, one hundred and two seamen only were detained as british subjects, which is less than one-twentieth of the whole number impressed. eleven hundred and forty-two were discharged, or ordered to be so, and eight hundred and five were detained for further proof, with the strongest presumption that the greater part, if not the whole, were americans, or other aliens, whose proof of citizenship had been lost or destroyed." it is, then, evident, from this document, that, for every british seamen obtained by this violent proceeding, a number of americans, or other aliens, with whom great britain has no right to meddle, not less than twenty for one have been the victims to it. sir, have we become so lost to the real independence and sovereignty of the country, that we are prepared to yield to this degrading, debasing, and humiliating badge of vassalage? the romans, of old, had a practice of making the governors of those countries they conquered pass annually beneath their yoke, as a mark of submission; but we, doomed to humiliation far greater, are made to pass daily, nay, hourly, beneath one much more galling. some gentlemen object to the propositions made by mr. russell, and assert that he was not authorized. they should recollect that mr. russell's letter, containing this final offer to the british government, was communicated to this house by the president, and, had it not met with his concurrence, it is presumable he would, in his communication, have expressed his disapprobation towards it. nay, a similar offer has been made by the secretary of state to admiral warren. i know not whether the feelings of shame or indignation predominate in my breast, when i see gentlemen constantly laboring to place their own government in the wrong; and, in contradiction to the official records of this house, insist that we are contending for the employment of foreigners. the language of our government upon that subject, is this, sir: that, if the oppressed and unfortunate inhabitants of europe, escaping from their tyranny and panting after their long-lost liberty, seek a refuge in our happy country, upon their compliance with our naturalization laws, we are willing to extend to them those blessings we enjoy; but should they become dissatisfied with the advantages which the interior of the country affords them, and they think proper to depart from our shores, we say to them, we will not risk our peace for their protection beyond our territorial limits. so far from our contest with great britain being for the employment of her subjects, it is a contest for shielding a large and valuable portion of our fellow-citizens from british thraldom, under the lash of which they have too long labored; and who will dare discriminate in that protection which is equally due to all, that is due to the meanest individual in the community, and withhold it from a class of men who have done honor to the american character, and covered themselves with glory? mr. randolph rose, apparently laboring under the effects of a serious indisposition, and addressed the chair. i rise (said he) with a heart saddened by the disgrace of our common country, and sickened by the way in which the business of the state has been managed. of the temper and virulence which have manifested themselves in this debate, i shall not have any occasion to divest myself in the course of the very few remarks which i fear i shall be enabled to make, because towards them i have no purpose. indeed, when i look around me, i am exceedingly sad; and i know not now if it will be in my power to go on. i had intended, if time and health permitted, to address to this assembly some few observations, confined principally to the change which has taken place in the relations of our country since the declaration of war, not only respecting that belligerent with whom we are engaged in hostilities, but her adversary also. but the course that this debate has taken imposes upon me a painful duty, which i trust god will give me strength to discharge: the duty of reviewing past transactions in the government, which, from my heart, i would, instead of bringing them up on the present occasion, gladly discharge from my memory. but self-defence is the first law of nature. the merest reptile, the worm itself, will turn when trod upon. nor is the force of the blow lessened by its being dealt, as in the present case, by the hand--i will not say under the garb and circumstances--of friendship. it was my lot, sir, and i may assuredly say my misfortune, to take some little share in those transactions which brought about a civil revolution in the government of this country. i hope that i am understood. i feel i shall be understood, when i speak of this, by all wise and good men; and it is with them only that i wish to hold intercourse--to commune. it is of their good opinion alone that i am ambitious, if indeed ambition dwell any where in my heart. let me endeavor to recall to recollection the state of things about the period when i had the unhappiness to dedicate myself to political life. through the opposition, bold but just, which was made by myself, and those associated with me, to the measures of that administration, an entire change was effected in the control of the government. one administration was ejected from power, and another took its place. is it necessary for me to descant upon the topics of difference which then separated the two great parties in the government? is it necessary for me at this time of day to make a declaration of the principles of the republican party? is it possible that such a declaration could be deemed orthodox when proceeding from lips so unholy as those of an excommunicant from that church? it is not necessary. those principles are on record; they are engraved upon it indelibly by the press, and will live as long as the art of printing is suffered to exist. it is not for any man at this day to undertake to change them. it is not for any man who then professed them, by any guise or circumlocution, to conceal apostacy from them, for they are there--there in the book. what are they? they have been delivered to you by my honorable colleague--what are they? love of peace, hatred of offensive war; jealousy of the state governments towards the general government, and of the influence of the executive government over the co-ordinate branches of that government; a dread of standing armies; a loathing of public debt, taxes, and excises; tenderness for the liberty of the citizen; jealousy, argus-eyed jealousy, of the patronage of the president. from these principles what desertions have we not witnessed? will you have a list of them? i shall not undertake it. principle does not consist in names. federalism is a real thing--not a spectre, a shadow, a phantom. it is a living addition to the power of the general government, in preference to the power of the states; partiality for the executive power, in distinction to that of the co-ordinate departments of the government; the support of great military and naval force, and of an "energetic" administration of the government. that is what is called federalism. yes, an energetic administration, not in its real, but technical sense; for it has a sense as technical as any in our laws. _that_ is federalism. and, when i am opposing the course which looks toward the rearing up of great military and naval establishments, of an extent not only incommensurate with the necessity but the ability of my country, i care not with whom i vote; i will be true to my principles. let any man lay his finger upon a vote in which, since i have had the honor (if, indeed, it be an honor) of a seat in this house, i have departed from those principles, and i will consent that, _quoad hoc_, i am a federalist. but it will be in vain to search for such a vote. so strenuous, sir, had been the contest--so hot the spirit of rivalship between the two contending parties--that, after the revolution of , a curious spectacle was presented to this nation and to the world--a spectacle which, i am bold to say, never did before make its appearance in any government, and never will appear again. it was this: that, as if the character that each party had borne when in collision with one another was indelible, the two parties, after power was transferred from one to the other, did actually maintain the same character which they had derived from impressions received during their late conflict: and the admiring world saw with astonishment the case of an opposition minority attempting to force upon a reluctant administration patronage and power, which that administration put by, and sternly refused to accept. yes, sir; for a time so completely had the republicans been imbued with the principles which they professed whilst in a minority, that, after becoming the majority, the federalists pressed on their old adversaries power and patronage, to which they absolutely opposed themselves, repelling, for a season, every project of the kind. is it necessary for me to allude to the reduction of the army--to say by whom it was made? sir, the proposition for it was originally made by the personage now addressing you; it came from what was then considered the governmental side of the house. and by whom was it opposed? by gentlemen who had so long fought under the banners of a government of "energy," that they were not content to submit to the diminution of its patronage or its power, even in the hands of their political opponents. i speak of facts. such a case will never occur again. nay, indeed, in a little time, the sweets of power had their effect on one side of the house, as the frowns of adversity had upon the other; and after awhile, the court and country parties as easily changed sides as right and left do when a man turns upon his heel. yes, sir, the tone of this house was soon changed. we succeeded, however, in the reduction of the army; but i will trust to the recollection of gentlemen, upon all sides of the house, by what instrumentality this change was effected. the commander of that army was retained in his position. i have not leisure, health, or strength, to go into the details; gentlemen will remember them. meanwhile, peace with this country was negotiated in france by the commissioners sent by mr. adams, and was followed up very soon afterwards by the short respite that the truce of amiens gave to european combatants, wearied rather than satiated with slaughter. these events placed this country in the happiest condition. of the proceeds of the direct and internal taxes voted by the predecessors of the administration of mr. jefferson, one moiety at least came into the treasury after their dismissal from office. but these proceeds were not necessary to give an overflow of money into the treasury, which we never ceased to have until we departed from those principles of government and that policy which brought us into power. we sailed on for some time in the full tide of successful experiment, unobstructed by squalls or adverse gales, if we except only the yazoo breeze. that question was, if i forget not, the first cause of a breach between those persons who had a direct lead in the government of the country. there were men who did not hesitate, in opposition to all the heads of your departments, to throw themselves into the breach at that time attempted in the constitution of the country, to defend it, and to defend it with success. it appears, from some documents that have lately been laid upon our table, that errors of that day have been perceived, and that tender consciences which at that time revolted, are now entirely reconciled to the compromise which was then stamped with the reprobation of almost every honest man from georgia to virginia. there were considerations of personal feeling which gave to other parts of the union, and to certain individuals therein, a bias on that subject; and i should be extremely sorry to be considered as passing any thing like general censure upon the advocates of that measure in or out of this house. i refer only, of course, to those who were not parties concerned in the fraud. at that time, sir, all was prosperity and joy. at that time were accumulated in the treasury those surpluses which, in one year, nearly equalled the sum for which, in the present year, the revenue is deficient, notwithstanding the loan of last year, and to make up which deficiency the head of the treasury has been able to devise no other means than a resort to new loans. yes, sir, there were then those surpluses in the treasury, the ghosts of which lingered along its vaults for a time after their corporeal bodies departed, and were then heard of no more. but to proceed. the expenditures of the government, during the first four years of the jefferson administration, exclusive of payments on account of the public debt, averaged only eight millions of dollars a year. in the four last years of the jefferson administration, those expenditures were very greatly increased, amounting in the year , (the last of the four,) without any increase of army and navy expenditures, to upwards of sixteen millions of dollars--rivalling the expenditures of any one year of mr. adams's war, and amounting to one-half as much as was expended by the father of his country in his eight years of the presidency, during which he was called upon to establish public credit, to maintain a bloody indian war, and to lay the foundation of that character of integrity which the government has so long sustained abroad, notwithstanding the misconduct of its rulers. yes, sir, it is a curious but notorious fact, that in and --and i speak of , for, although the present incumbent came into office on the d of march of that year, expenses were incurred and voted in his predecessor's time--the expenditures of the government outraged all belief when compared with the objects on which they were lavished. and here, mr. chairman, let me put to you, and to the gentleman on my right, if it be within the compass of any man's powers to detract more from the merit of an administration of the government of the united states in managing at least one branch of the revenue than has been done by that honorable gentleman? what has he said? i will not repeat his words; to do so would be odious, invidious; but i well know if what he did say had come from the other side of the house, it would have been set down to the rancor of party spirit; to personal spleen; or to want of respect for the white house, or the red house, or some other house. what has become of that vast amount of money? no man knows; and to the best of my knowledge and belief, so help me god, no man will ever know. i find, as i anticipated, a difficulty in dragging along my miserable body, and my feeble mind, in this discussion; a difficulty not less, perhaps, than that of dragging along with me the attention of members of this house. i ask its patience, its pardon, and its pity. but to continue. in this prosperous state of our country, the war in europe was renewed, or about to be renewed. the government of the united states would naturally, from the situation of affairs in that quarter of the world, experience a temporary diminution in its revenue, which it need not feel or regard, because it had been enabled to make that noble provision for a sinking fund, for lessening the national debt, for paying off the mortgages on the estate of every man in the country and of those who are unborn. it had made that noble provision, which was attempted to be diverted to the necessities created by the policy of the last four years of jefferson's administration, and the actual diversion of which, i believe, was the first act of this administration. it had made that appropriation of eight millions of dollars for a sinking fund, not to be touched for any other purpose, and which, at the time of the appropriation, no man dared to believe would be gambled away. the war in europe brought to this country, among other birds of passage, a ravenous flock of neutralized carriers, which interposed the flag of neutrality, not only between the property, but even between the persons of the two belligerent powers; and it was their clamor principally, aided by the representations of those of our merchants who saw and wished to participate in the gains of such a commerce, that the first step was taken in that policy of restriction, which it was then foreseen would lead to the disastrous condition in which we now find ourselves. yes, it was then foreseen and foretold. what was then prophesied is now history. it is so. "you," said the prophet, "are prospering beyond all human example. you, favorites of almighty god, while all the rest of the world are scourged, and ravaged, and desolated by war, are about to enter into a policy called _preventive_ of war; a policy which comes into this house in the garb of peace, but which must end in war." and in war it _has_ ended. yes, sir, we have been tortured, fretted, goaded, until at last, like some poor man driven from his family by discord at home, who says to himself, "any thing, even exile, is better than this," we have said that we will take war; we will take _any thing_ for a change. and when war came, what said the people? _they_ said, "any thing for a change!" at that time circumstances occurred, and i hope the house will pardon me for alluding to them. it is absolutely necessary that i should do so. they have been spoken of by others before me; they were at the time, and have been since, detailed in the most solemn manner on the floor of this body. a denial of them has been challenged and never received. at that time, i repeat, circumstances occurred which made it my duty to oppose the projects of the executive government of this country in its relations with foreign powers. at that time nothing that the _spanish_ government could do, not even the invasion of our own territory, not even the capture and carrying off, not from our decks, but our soil, a portion of our citizens, could rouse this house to a spirit which would, in my judgment, have comported not only with its honor, but was absolutely indispensable to its dignity. we were wanting in the assertion of the rights of our own country over its soil and jurisdiction, by which assertion, then, we might have averted the calamities which have since befallen us; but a project for that purpose, recommended by the committee to whom that subject was referred, did not meet the approbation of the house. and from that day and date, the black cloud has thickened over us; has become more and more dense. from that day and date, have we departed from those counsels--in my humble judgment, at least--from those principles, adherence to which had induced the people of the united states to clothe us with their power and confidence. what have we done since? from that day, with a short interruption, the policy of this government has actually subserved, as far as it could, the purposes of _france_. i speak of facts; of facts susceptible of proof, which may be felt, seen, touched, heard, and understood by all except those too indolent to examine them, or too ignorant for the light of truth to have any effect upon their understandings. i say, sir, that the policy of this government has, from that time, subserved the purposes of france. and how do i prove it? why, sir, by way of meeting the french decrees, which prohibit to us all intercourse with great britain, we cut off the intercourse between us and the whole world. we virtually held out to our great commercial cities--to boston, new york, philadelphia, baltimore, and charleston--the same language as bonaparte had held to his own cities: "i know that you are suffering, and unhappy; that the grass is growing in your streets; that the ships at your wharves are rotting, until they are fit only for fuel; that your trade is dwindling only to nothing; but what is all that to my continental system? what are a few seaport towns--enterprising, wealthy, and prosperous, as indeed they are--what are they, compared to my continental system?" and, sir, what was our "restrictive" system? similar in point of effect--certainly cotemporaneous in point of time--to bonaparte's "continental system." sir, it is a matter susceptible of demonstration, if i possessed the physical power to go through with it, that the system recommended by the then president of the united states, of laying an embargo on all ships and vessels in our ports, for the purpose of "keeping in safety these essential resources," took place in consequence of a communication from our minister in paris to this government, transmitting certain correspondence of his with the french government. and although in the message to both houses of congress, recommending the measure, the president does use the term "belligerent powers," i do attest the fact, and i call upon other gentlemen, who know it, to attest it also, that, while the message purposely referred to both "belligerents," not one scrip of manuscript relating to the other "belligerent" accompanied that message; nor was there any thing contained in that message relating to that "belligerent," but a scrap from an english paper, about the size of a square of its columns, containing some speculations of a london editor; and i say that there did not exist in this house, nor in this nation--if there did, let the evidence be produced--any knowledge of the existence of the orders in council, which have been put forward as justifying the embargo. if their existence had been known at the time, would the president in his message recommending an embargo have failed to notice the fact? would he not have used it as one of the strongest inducements to the adoption of this system? would those "orders" not have been published in the national intelligencer, which is considered--and certainly not without cause, in view of certain things which we have lately seen in it--to be the court paper? produce the national intelligencer of that date; there is not one syllable to be found in it concerning the orders in council. no, sir, in his message on the occasion referred to, the president did not produce any _acts_ of the "belligerents" referred to, but only the correspondence between general armstrong, our minister at paris, and that government, on the subject of the construction of one of its first decrees. it was in consequence of the more recent decrees of france, and not of the british orders in council, that the embargo was recommended and laid. and yet, in the discussion which came off on that measure, it was represented as a weapon against england, which would be more efficient than any war, and must bring her to our feet: it would give effect to the object which bonaparte had in view, of destroying her by consumption, by cutting her off from the commerce of the world. although i state these facts, i know that it may be proven--and i am sorry that it can--by reference to the journals of this house, and by a report, too, of an honorable and respectable committee of this house, that the embargo was designed to obviate the effects of the orders in council. but, sir, it is indisputably true, that there was no mention in the embargo message of those orders in council--no allusion to them in debate upon it--no knowledge of them at the time that the embargo law was passed, that can be proven by any document whatsoever entitled to the least respect; and i will even go so far as to allow as evidence the authority of any newspaper. the members of that committee had heard so much of the orders in council, and the effect that it was pretended that the embargo would have upon them, that in their report, speaking of them, they absolutely transposed cause and effect. it is unfortunate that it should be so; but it is nevertheless true. events subsequent to the period to which i have now brought myself have been detailed in this debate in a manner so clear, so lucid, so convincing, by two honorable gentlemen from new york, that there is no need of my repeating the narrative: but i must be permitted to say that the statement made yesterday by a gentleman from new york, (mr. emott,) will be refuted when euclid shall come to be considered a shallow sophist, and not before. my honorable friend from the same state, who spoke a few days ago, called upon gentlemen to handle that part of the subject--the revocation of the berlin and milan decrees, and the inveiglement thereby of this country into a war with england--in a manner more able than, he was pleased to say, he himself had done it. the attempt to do this would, indeed, be to gild refined gold, to paint the lily, to add to the perfume of the violet--in all cases a most ridiculous and wasteful excess. and yet, sir, the situation in which i unhappily stand, and in which it was my lot to stand at the conclusion of the last session of congress, compels me to say a word on this subject. you will remember, sir, that it was my misfortune, during the first session of this congress, to oppose the attempt to impress upon this house and the nation certain most preposterous, absurd, and false propositions; for the temerity of which effort i came under the censure--implied, at least, if not to say direct--of this honorable body. the contrary propositions, which i undertook to maintain, were, first, that the berlin and milan decrees were not repealed on the first of november, , and that the only evidence of any such repeal, up to that date, was _the president's proclamation_ of the second of that month; and secondly, that the british orders in council did, in point of fact, establish no serious insurmountable obstacle to negotiation between that government and the united states. why, sir, i shall not here go into any argument on this point; if i had the ability, i have not the will; and, if i had the will, i have not the ability. nor can it be necessary, when the emperor of france himself comes into court, and cannot reject his own authority, as borne in his own laws. yes, sir, he did come forth, and, in his antedated decree of the th of april, --though it unquestionably ought to bear date full twelve months later--does, in the most offensive of all possible ways, establish the fact, not only that the berlin and milan decrees were not repealed (as all the world knew except the president of the united states) on the first of november, , but that they were in his mind when he issued his decree, dated th april, . they were repealed, finally, in consequence--of what? of your doing that which for years he had been attempting, by menace and blandishment, to induce you to do--that is to say, embark in war with england, taking sides with france, "causing," as the phrase was, "our flag to be respected:" and this, too, after your having posted up in the ledger of this house that war with one of the "belligerents" was equivalent to submission to the other! my other proposition was, that the orders in council constituted no insurmountable obstacle to negotiation between this country and great britain. and what was the fact in regard to them? why, that almost at the time that this position was taken on this floor--a few weeks only thereafter--the orders in council were repealed. i put it to you, sir, and to the great mass of the people of this country--to the honest, laborious, unsuspecting, kind-hearted, confiding, generous, and just people--had the fact been known that the french decrees were _not_ repealed, and that the orders in council _were_ repealed, whether any man, in any station, would have had the confidence to propose a declaration of war against england, taking part against her, and siding with france in the conflict in which those nations are engaged? and, whilst i am upon this subject, permit me to say, suppose the proposition which was repeatedly made--in more than one instance by the person who is now addressing you, and supported with the greatest ability by gentlemen on the other side of the house--to postpone our declaration of war against great britain until the autumn, when we might be in some state of preparation and readiness for it--had succeeded, what would have been the consequence? at this time we should have been at peace; we should have been lying secure in that snug safe haven of neutrality, in which the good sense of the greatest and best men of this country have always attempted to moor the public ship. _now_, where are we? and shall this war be called a popular war; a war of the people; a war called for by the public voice, into which this country has been plunged, not more by the agency of the friends of government than of its enemies, in the hope of the latter that this administration would sink and founder in it, and they rise to power thereupon? is it possible that that can be deemed a war of the people, a popular war, which has enabled a gentleman known to be of the most respectable connections, and possessed, i believe, of considerable talent--but who, put in competition with the veteran politician now at the helm of government, is but a boy in politics--a person whose pretensions are so extremely inferior, to rival the present chief magistrate in the confidence of the people, and for a time, as you know, make him tremble for his re-election? it is, however, some consolation to reflect that, in all free governments, the public voice will sooner or later be heard upon all their measures, and in condemnation of those which the opinion of that public detests and execrates. this is a great law of politics; it is to the political what gravitation is to the physical world; it cannot be counteracted. statesmen know it, feel it; they do not reason to it, but from it; they never lose sight of it, but are guided by it in all their measures. and those of us who live to see the next congress, will live to see the effects of that law in this house. sir, we have passed so many laws, we have had so many objects for enticing the belligerents on the one hand and coercing them on the other, and enticing and coercing them together, that i feel some little difficulty, in the present state of my brain, in referring to them by title or date; but it is the law passed on this subject, in consequence of which the celebrated letter of the st of august of the duc de cadore was written, to which i desire most particularly to refer. if, after the proclamation of the president of the united states of the st of november thereafter, issued in consequence of that letter, revoking so much of our non-intercourse law as related to france, an unbroken warfare being kept up by france on our commerce--a fact as notorious as the existence of any fact in nature--was it not good cause for reinstating the law in relation to france, and putting her on her ancient ground? then i would be glad to know, for one, whether our continuing at war with england was any better cause for keeping up the interdiction in relation to her, after she had revoked her orders in council? in other words, it being admitted by gentlemen on one side, as it has been contended by gentlemen on the other, that the revocation of the orders in council by great britain was such a one as did satisfy the terms of the non-intercourse act, what was the reason that the proclamation required by our law in such case did not issue? why, sir, the state of war between the united states and great britain being offensive on our part--being of our own making--was held to be a cause why we cannot execute our law as relates to her. now, whilst the continued war upon us by france, by seizures of our merchant vessels and their cargoes, is not considered an obstacle to its execution in regard to her, is it not as clear as the noon-day sun, that if the making of war by france on the united states did not constitute any good cause for withholding the revocation as to her, when she professed to have repealed her berlin and milan decrees, there was no reason why it should not have been extended to great britain also, when she actually repealed her orders in council? i am extremely at a loss to say whether my judgment, my memory, my imagination, or my command of words, fit me for the expression of the few scattered ideas i have on this subject; i fear that they may fail me. but i believe it will be conceded, on all hands, that if, after the revocation of the british orders in council, the president of the united states had, as he honorably might have done, made that repeal the basis of negotiation with great britain, there is not a man in this country--certainly there is none among his admirers and adherents--who would not have hailed him as the restorer of the peace and prosperity of the country, which had been so idly (i had almost said so wickedly) disturbed. but, regardless of every consequence, we went into war with england as an inconsiderate couple go into matrimony, without considering whether they have the means of sustaining their own existence, much less that of any unfortunate progeny that should happen to be born of them. the sacrifice was made. the blood of christians enjoying the privileges of jury trial, of the writ of _habeas corpus_, of the freedom of conscience, of the blessings of civil liberty, citizens of the last republic that ambition has left upon the face of a desolate earth--the blood of such a people was poured out as an atonement to the moloch of france. the juggernaut of india is said to smile when it sees the blood flow from the human sacrifice which its worship exacts; the emperor of france might now smile upon us. but no, sir, our miserable offering is spurned. the french monarch turns his nose and his eyes another way. he snuffs on the plains of moscow a thousand hecatombs, waiting to be sacrificed on the shrine of his ambition; and the city of the czars, the largest in the world, is to be at once the altar and the fire of sacrifice to his miserable ambition. and what injury has the emperor of russia done to him? for what was he contending? for national existence; for a bare existence; for himself and the people who are subject to his sway. and what, sir, are you doing? virtually fighting the battles of his foes; surrendering yourself to the views of his adversary, without a plea--without any thing to justify your becoming the victims of his blasting ambition. yes, sir, after having for years attempted to drive us by menace into war with england, when he has seen us fairly embarked in it, and the champions of human rights bleeding in his cause, the ruler of france has turned with contempt from your reclamations; he has left your minister, who was charged with those reclamations, to follow him in his russian campaign, to whip up his jaded pegasus, and, travelling at his heels, to overtake him if he can.[ ] for these injuries and insults what atonement has been made? what satisfaction has been received for your plundered property? and what is the relation in which you stand to france? at this moment, when it is well known that it would not require one additional man in the army or navy to make good, in the eye of nations, your character as an independent and high-spirited people, you are prostrate at the feet of your's and the world's undoer. is there any thing yet wanting to fill up the full measure of injustice you have sustained? gentlemen on all sides are obliged to admit that the provocation which we have received from france is ample; that the cup of it is overflowing. and yet, what is our situation in relation to that destroyer of mankind--him who, devising death to all that live, sits like a cormorant on the tree of life; who cannot be glutted, nor tired, with human carnage; the impersonation of death; himself an incarnate death? all this, i say, does prove--and if it does not i call on gentlemen to disprove the fact--that there is a difference in the standard by which we measure french aggressions and the aggressions of any other people under the sun. when spain was the ally of france she was--what? she was secure from our indignation. there was not a murderer, a barbarian, in all our western wilderness that was not safe under the spanish cloak. for why? because the king of spain, such as he was--for he wore only the semblance of a crown--was in alliance with france; and he must not be touched. but what has _revolutionary_ spain done? what offence has she committed against france? that she is not only helpless, destitute of resources, unable to return a blow, but, above all, is coveted by france, are considerations which cannot justify, on the part of france, conduct towards her more infamous than that of the english at copenhagen--conduct cowardly as it is unprincipled. but, sir, i forewarn gentlemen of the southern country--i do beseech them, with a sincerity which no man can have a right to question--to beware how they transfer the theatre of war from the rocks and snows of canada to the sandhills, the rice-fields, the tobacco plantations of the southern states. for them to think of voluntarily consenting to make that region the theatre of the war, would compel me to believe that they are on the verge of that madness which precedes the destruction of all doomed by heaven to perish. sir, i have just touched, with trembling and faltering hand, some of the preliminary observations which i had intended, at some time or other, to make, into which i have now been prematurely forced to enter, not more unexpectedly than unavoidably, by the strange turn which this debate has taken. there are two other points--for, in respect to the orders of council, i shall not say a word about them--upon which i am very anxious to offer myself to your attention: the one the celebrated point of impressment, which, though it has been very ably handled, is not yet exhausted: the other the indian war on our western border. and i also wish to say something on the subject of negotiation. in the midst of a war with one of the greatest powers of europe, why should the gleam of the tomahawk and the scalping-knife, the cries of massacred women and children reaching our ears--why should these fright us from our propriety? why, we are told the indians of the west have been stirred up to war with us by british agents. but what is the fact? that we have no indian war, but a war of our own seeking, as i have already, in the course of this session, read to you certain proofs; and i will now give you another. it is this: it is agreed on all hands--no man has attempted to dispute it--that, in the affair of the battle of tippecanoe, the commander and the officers distinguished themselves by the greatest gallantry. how has it happened, then, that while we have been freely voting medals to those gallant officers of our navy who have distinguished themselves on the ocean--and i hope we shall vote them something more substantial--not a whisper has been heard in relation to those who have been engaged in this expedition against the indians? the subject has not been even inquired into. do we know, at this moment, as a legislature, the causes of that disastrous business--i call it so from its consequences--or by whose authority this war was made? or, is it come to this: that governors of our territories are to consider themselves as so many hastings and wellesleys of our country, and that, while they do not involve us in war with christians like themselves, they may go to any extent in exterminating the red barbarians here as in the east indies governors and proconsuls of the british government do there in regard to uncivilized powers of that quarter of the globe? is it discovered that our territorial governors may at pleasure invade the territory of other nations--for, inconsiderable and contemptible though they be, the indian tribes _are_ nations--in like manner that the british authorities make war upon those nations of the east? yes, sir, not only is this a war of our own seeking--not only we had it in our power to keep the peace--but in the country which was the scene of the battle, and in the adjacent country, it was the most popular war ever waged. the frontier people of this country have been in the habit of driving the heathen before them; and to them the chase of the deer, the elk, and the antelope, is not so grateful as that of the red men they hunt. i believe that it is the cause of serious regret to many of the people of the west that there is now no longer any motive to drive them from their lands. as to the red men, the big-knives have, without any foreign prompting or instigation, driven them off from a country more extensive than that over which the emperor of france wields his sceptre. so i put aside this item of indian war altogether as a matter of account in the list of our grievances against the british government. there is not a shadow of foundation for believing that these indians were or could have been instigated to take up the hatchet against us until hostile arms had been taken up against them. when driven to the wall they must fight or die--the last alternative left to them--for which nobody can blame them. it was, sir, a saying of one of the best men who ever wrote, in correspondence with a friend, that he had no time to write a shorter letter; and i can truly say that i have not _time_ to deliver a shorter speech. i know that this question will be taken to-day, for i have been so admonished; and my own very severe and sudden indisposition, which i am almost ashamed to name, will compel me to detain your attention much longer than under other circumstances would have been the case. a word, now, on the subject of impressment. our foreign trade had grown beyond the capacity of either our tonnage or seamen to manage. our mercantile marine was an infant hercules; but it was overloaded beyond its strength: the crop was too abundant to be gathered by our hands alone. the consequence was, and a natural one too, that not only the capitalists flocked into our country from abroad to share in our growing commerce, but the policy also of our government was adapted to it, and a law was passed to enable us to avail ourselves of the services of british seamen and seamen of other countries. and, in doing this, we availed ourselves of the pretext--which, as long as the countries to which they belonged winked at it, was fair for us to use--of taking these british seamen for americans. it was in that commenced the act, to which reference has been made, and that system of "protections," as they were called, the very mention of which, at this day, causes a burst of honest indignation in the breast of citizens whose situation enables them to ascertain their true character. if these "protections," so termed, have not been forged all over europe, it is only for the reason that the notes of a certain bank of which i have heard have not been forged, viz: that, the bank being broke, its notes were so worthless that people would not even steal them. the "protections" are attainable by everybody; by men of all ages, countries, and descriptions. they are a mere farce. the issuing of them has gone far to disgrace the character of the country, and has brought into question and jeopardy the rights of real american citizens. this question of impressment, delicate as it has been said to be--difficult as in one view it certainly is--is, of all others, in my judgment, the most compact. with the gentleman from new york, i will say that the tide of emigration has brought to the shores of our country many most valuable characters; some of them persons with whom i have the honor of being in habits, not only of intimacy, but friendship. i believe there does not exist one man of this description, who comes _bona fide_ to this country to settle himself and children here, that would require you to go to war on his account. and, sir, i believe that the belligerent position itself in which you now find yourself will relieve you in a great degree of this evil, for many seamen who have so long, by virtue of these "protections," passed themselves off for american, will find it to be very convenient to be portuguese or swedish seamen, or seamen of some other state than the united states--some state that is not at war with england. sir, there is a wide difference between the character of american seamen and seamen of every other country on earth. the american seaman has a home on the land, a domicil, a wife and children, to whom he is attached, to whom he is in the habit of returning after his voyages; with whom he spends, sometimes, a long vacation from the toils of maritime life. it is not so with the seamen of other countries. for the protection of men of the first description, i am disposed, if necessary, to use the force of the country, but for no other. i know, indeed, that some gentlemen who have spoken much on the subject of the principle of impressment, will tell you that the right to take from a neutral vessel one seaman, if carried to its extent, involves a right to take any, or all seamen. why, sir, in like manner, it might be argued that the taking illegally of one vessel at sea involves the right to take every vessel. and yet, sir, who ever heard of two nations _going to war_ about a single case of capture, though admitted not to be justified by the laws? such a case never did and never will occur. of one thing we are certain: it rests upon no doubtful ground: that great britain, rather than surrender the right of impressing her own seamen, will nail her colors to the mast, and go down with them. and she is right, because, when she does surrender it, she is samson shorn of his strength: the sinews of her power are cut. i say this openly in the house of representatives; and i am not communicating to the enemy a secret of any value, because she has herself told us that she can never surrender it. she has told us so, not when she stood in the relation of an enemy toward us, but in the friendly intercourse of the british ministry with our late commissioners at london. turn to the book: i wish the honorable gentleman, if he has it, would for a moment let me have the use of it. you are told in that book that every effort was made by the american commissioners to effect a relaxation of this right; that the british ministry evinced the sincerest desire to give satisfaction to them on this point: _but_ what? the admiralty was consulted; they waked up out of their slumbers the civilians at doctors' commons to deliberate upon it; and they came to the conclusion that the government of great britain could not give up that right. messrs. monroe and pinkney, the commissioners of the united states to negotiate a treaty with the government of great britain, in their correspondence with their own government, give this fact to excuse themselves for failing to accomplish their object, and to prove that every thing had been done that could be on their part, and every thing conceded on the other side that the most friendly disposition could warrant--and here i do not speak of masked friendship, but of real friendship. although every thing possible had been done, this right of impressment of her own seamen was a _sine qua non_ on the part of great britain--one which would not, could not, must not, be surrendered. and, sir, if this question of the right of impressment was one on which we were to go to war with great britain, we ought to have gone to war _then_; because we were then told by the highest authority in that government that this was a point which never would be given up. i find, sir, that i cannot trust my broken voice to _read_ the book, now that it is in my hand, but must rely upon my recollection for facts. now, this question lies as i have said, in a very small compass. the right of great britain to take her own seamen from your merchant vessels, (if it be a right,) is one which she has exercised ever since you were a people, wherever occasions for its exercise have occurred. will you not only go to war, but wage a _bellum ad internecinum_ for it? will you wage an endless war of extermination for this right, which, you have known for two and twenty years of your national existence, she will not relinquish? a gentleman from tennessee, of whose capacity few men have more respectful opinion than myself, has quoted the diplomatic correspondence as far back as , to show what general washington's opinions were on this question of impressment, and this opinion of the father of his country is now held up to the people of the united states for the purpose of enlisting their prejudices in the conviction that, by involving the country in warfare, we are at this moment treading in the footsteps of that great man, and acting upon his principles. nothing can be more untrue. to say that the treaty of louisiana was negotiated two years after the letter of instruction quoted from the washington administration, and that that treaty contained no provisions on this point, is a reply in full on this course of argument. but what does the correspondence referred to prove? what every treaty, what every negotiation, has proven: that england would not give up this point, although she made offers for guarding against abuse--offers more favorable to us than ours to her. and yet the administration of this government have had the hardihood or the folly to plunge the nation into a war for it--for a point on which general washington, mr. adams, and mr. jefferson, men differing from each other as may be in every aspect, had been content to negotiate, rather than go to war for its assertion. what was the offer made to our government by the british ministry? if i do not forget, their offer was that they would not impress american seamen. their offer to us was not accepted, but it was beyond question, in my opinion, more beneficial than the proposition which we on that occasion made to them. but it may be said that the right of search cannot be endured; that the protection of our flag must be held inviolate; that if a search of our ships be permitted for british seamen, they may actually take american seamen. sir, there is no doubt of the fact that by mistake, sometimes perhaps by wilful misconduct, on the part of officers engaged in the search, such a thing may happen. but, should we not think it exceedingly strange that the misconduct of an officer of the american government, in one case in twenty if you will, should be a cause of war for any nation against us? it is one of those cases which does occur, and will forever occur, to a neutral power, whenever a general war is lighted up. it is one of the prices which this country has to pay for its rapid accession of wealth, such as is unheard of in the annals of any other nation but our own. and this, sir, is the state of things in which we have undertaken, in children's language, to quarrel with our bread and butter; and to identify ourselves with one of the belligerents in a war in which we have no proper concern. i will not touch at all the abstract question of the right of impressment: it has been so much more ably handled by others that i shall not say a word about it. i address myself to the common sense of the planter, the farmer, the agriculturist of our country--are you willing upon such grounds as these to continue this war? i have no doubt what will be their answer. on these subjects i have delivered my sentiments more than once before in this house. i think of them with horror as the accursed cause of this war. not that the men who are in power are worse men than other people, but that they have brought upon this land of peace and freedom issues the end of which it would be impossible for any human being to divine. one thing is certain, that the right of search does practically exist, and has been acknowledged by all nations. the president of the united states and his secretary of state, as great masters of the law of nations, will be among the first to acknowledge it; they _have_ acknowledged it, and by our treaties with foreign powers, this country has heretofore acknowledged it, so far as concerns the right to search for contraband goods and enemy's property. suppose that there are notorious abuses under this right: should we be justified in declaring that no search whatever of our merchant vessels shall be allowed? there is no doubt that, under the color of the right of search--for i am advocating its lawful purposes only--abuses have been committed on neutrals; and as long as men exist it will be so. the liability to abuse of this right is the price which neutrals pay for the advantages which they derive from their neutrality; and i should like to know whether it would be for me to join in the contest in which these belligerents are engaged for the recovery of my _neutral_ rights. where are those rights when great maritime powers become belligerent? there are neutral rights undoubtedly, but there are also neutral duties. and shall a neutral nation, a nation which has in that character prospered and flourished more than any people on the face of the globe, sacrifice those rights and those advantages, and resort to war against one of those belligerents--and for what? for a point of honor! yet, whilst in this quixotic spirit we have gone to war with england; although we have been robbed, reviled, contemned throughout by the emperor of france, we can see no cause of war with him! what shall we say of the _french_ doctrine in relation to this subject of impressment? if that has been dwelt upon in this debate by any honorable gentleman of this house it has escaped my notice. what is the french doctrine on this subject--established at the time when the united states stood in relations of peace and amity to that power, when every heart beat high with sympathy for the success of french freedom; when some of those who have since transferred their admiration, i will not say their love, to the present head of the french government, to the enemy of french freedom, and all freedom, to all commerce, and right, and religion--at the time when some of those who have since so lamentably changed on this subject felt an interest for freedom and france scarcely inferior to that which they felt for freedom and america? what were then the doctrines of the french government? that all who spoke the english language should be treated as englishmen, unless they could give proof to the contrary; the _onus probandi_ lying on those who spoke the language of locke, and newton, and milton, and shakspeare. yes, sir, whilst the english government establishes no such doctrine, the french government acts upon the principle that speaking the english language is _prima facie_ evidence of your being a british subject, and would justify their treating you as an enemy, the burden of the proof to the contrary being thrown upon yourself. and, sir, is it nothing to the bill which we are now debating, for raising an additional army of twenty thousand men--or is it a departure from order to hint on this floor at a circumstance which all men are employed and occupied in discussing at their firesides?--that this army, to constitute an aggregate of fifty-five thousand regular troops, is about to be put under the control of the man who was the author of the anonymous letters at newburg at the close of the revolutionary war, inciting a handful of men, the remnant of the old american army--perhaps not numbering six thousand altogether--to give _a master_ to the nation? is that a consideration to have no weight upon such a question as this? with me, sir, it is conclusive. i will tell gentlemen on both sides of the house that a government or a man may despise a calumny--that the arrows of slander will fall blunt and harmless upon them--provided that the government and the man be true to itself and himself. yes, sir, ask yourself this question in regard to any man, to whom you are about to confide important trusts: does he pay his just debts? is he a man of truth? does he discharge as he ought the duties of a friend, a brother in society? after having done that, be his politics what they may, and his peculiarity of opinion in politics what it may, he is a good man; he acquires the esteem of all who know him; he is impenetrable to mere vulgar calumny. this government ought to employ men of real worth and capacity: it is not always that those showing qualities attracting attention in private life, or as companions, are of _real_ capacity. do those who administer the government make it a rule to employ in the public service none but men of real capacity, or worth, of integrity, and of high character? do they give their contracts and offices without fear, favor, or affection, to men of responsibility and character--to such men as you would in private life give your own contracts to? or do they bestow them, as is done in some governments differently constituted from ours, where church preferment and military preferment are sometimes made a dirty job of parliamentary interest? do they employ men of clean hands, with fair characters; or is every caitiff, without examination, welcome to their arms, provided he can bring with him the proof of his treachery to his former employers? it depends on these facts whether confidence is due to any administration of the government. sir, i have much yet to say which appeared to me, when i rose, not to be unworthy your attention; but i confess to you, with feelings something like contrition, that my opinion on this subject has undergone a change. there is one point, however, on which i do not know how to speak in this place with the reverence which is due to it. i cannot pass it over, and yet i know not how to touch it. yes, sir, there is one reflection pressing itself as a crown of thorns upon my own head, which i am bound to present to the consideration of this assembly and this people. is it fitting that the only two nations among whom the worship of the true god has been maintained with any thing like truth and freedom from corruption; that the only two nations among whom this worship has been preserved unstained, shall be the two now arrayed against each other in hostile arms in a conflict in which, let who will conquer in the fight, his success in one point, if that be an object, will have been attained: so much of human life, liberty, and happiness, will have perished in the affray--in the service of this scourge with which it has pleased god, in his wisdom and justice, not in his mercy, to inflict mankind? is it fitting that those hands which unite in giving to idolaters and to the heathen the word of god, the book of life--that those hands, and those alone, should be thus drenched in each other's blood? will you unite as a christian with your protestant brother across the atlantic for these noble purposes, and then plunge the dagger into his breast with whom you are associated in a cause so holy--one so infinitely transcending the low, the little, the dirty business we are called upon here to transact? i hope that the sacrifice may be stopped. we have nothing to expect from the mission of our minister to the ruler of france, whether at moscow, or wherever else he may be. the deity or devil whom we worship is not to be mollified by our suppliant appeals. let us turn from him--come out of his house--and join in the worship of the true and living god, instead of spilling the blood of his people on the abominable altar of the french moloch. sir, i have done. i could have wished to continue my remarks further, but i cannot. when mr. randolph concluded, the house adjourned. thursday, january . _additional military force._ the house then resumed the consideration of the bill to raise twenty additional regiments of infantry for one year.--the question being on the passage of the bill. mr. stow, said: mr. speaker, i am aware of the delicacy and novelty of my situation, as well from the indulgence of the house, as from the neutral course which i mean to pursue. he must have been indeed an inattentive observer of mankind who proposes to himself such a course without being exposed to difficulties and dangers from every side. our country has experienced them too long from the great belligerents of europe, and an individual will quickly find them here. for even this house is not exempt from its great party belligerents who issue their conflicting decrees and orders in council; and, in imitation of the hostile europeans, it is sometimes a sufficient cause of condemnation to have been spoken with by the adverse side. yet, notwithstanding all these dangers, i mean to launch my neutral bark on this tempestuous ocean, conscious of the rectitude of my intentions, and humbly hoping for the approbation of my country and my god. the proper extent of the discussion growing out of this bill seemed to be confined to these inquiries: can the force contemplated be obtained? if obtained, will it accomplish the end proposed? and lastly, will the force be an economical one? if the discussion had been confined to these limits i would have listened, and not have spoken; but, sir, it has taken a wider range, and assumed a more important aspect. it has embraced the present, and past, and the future. the causes of the war, and the mode of conducting it, have been investigated, and even confident predictions have been made as to its end. the history and the state of our negotiations have been carefully examined--and the presidential order of succession has been scrutinized by the light of experience as well as that of prophecy. we have sometimes been forced into the scenes of private life; and, at other times, we have been chained to the car of napoleon. in short, sir, the discussion has ranged as wide as existence, and, not content with that, the speakers "have exhausted worlds, and then imagined new." i do not pretend to censure this--it may be well for the people to have their political concerns thus splendidly dressed and passed in review before them. but still i will attempt to call the attention of the house from the regions of fiction, of fancy, and of poetry, to the humble, but i trust no less profitable, sphere of reality and prose. passing by many of those things which have amused by their ingenuity, or surprised by their novelty, but which do not deserve a serious answer, i will endeavor to state distinctly the grounds taken by the opponents of this bill, or rather the opponents of furnishing the means of prosecuting the war: firstly. it is alleged "that the war was originally unjust." secondly. "that if the war was originally just, it has become unjust to continue it in consequence of the revocation of the british orders in council." thirdly. "that it is inexpedient to prosecute the war, because we have no means of coercing our enemy or enforcing our claims." fourthly. "that we are unable to support the war." and fifthly. "that, in consideration of all these circumstances, the house ought to withhold the means of further prosecuting the war." first, then, it was alleged that the war was originally unjust. here let me call on the house to distinguish between unjust and inexpedient. nothing can be more important than to have clear and distinct ideas about those words which lie at the bottom of a science, or inquiry. this is happily illustrated in mathematics--there every word, by the help of diagrams, is carefully defined; and the consequence is, that there are no disputes among mathematicians, while their labors have done honor to mankind. a thing may be just and yet inexpedient: the justice of an act relates to the conduct of another, the expediency of our own situation. it may be just for me to sue the man who withholds from me the smallest sum; and yet so inexpedient as to be even ridiculous. thus a war may be perfectly just, and at the same time highly inexpedient. this, if i mistake not, was the ground generally taken the last year by the opponents of the war, particularly by the gentleman from virginia before me, (mr. sheffey,) which pointed out the distinction which i have endeavored to do, though with more ability and success. i hope the house will bear this distinction in mind; because it is of the greatest importance in the investigation which i intend to make. before i enter further on the argument, i ask the house to indulge me for a moment while i explain my views relative to the commencement of the war. i never saw any want of provocation on the part of great britain. i never for an instant doubted the justice of the war, while i urged its inexpediency with all my might. i considered man placed here by a beneficent providence, on a fertile soil, and in a happy climate, enlightened by science, and protected by the wisest of laws. by our revolution cut adrift, as i may say, from the old world, before the storm which was about to desolate europe arose, i fondly hoped that this new world would furnish one fair experiment of what science, liberty and peace, might achieve, free from those corruptions which have eternally attended on war. i hoped to see the country improved, and bound together by roads and canals, to see it adorned by literary institutions, and by every establishment which reflects honor upon man. nor do i yet believe that this was an utopian vision, or an idle dream. i still believe it might all have been realized by a different course--but the nation has determined on war, and, though it was not my choice, i still maintain that it is not unjust. i shall now examine the second proposition, "that if the war was originally just, its further prosecution is unjust." on what ground does this rest? it is this, that the orders in council were the cause of the war; those orders having ceased, the prosecution of the war becomes unjust. here again justice and expediency are confounded. it was never maintained, that the orders in council rendered war more just than many other outrages, though they went farther to prove its expediency, and even necessity. it therefore follows, that their repeal does not affect the justice of the war; unless accompanied with compensation for the spoliations committed under them, and atonement made for other wrongs. neither of these, is it pretended, has been done; except so far as relates to the affair of the chesapeake, and which i purposely left out of the catalogue of grievances. an injury which was a just cause of war, remains a just cause for its continuance, till atonement is offered, or till it is settled by negotiation. but, sir, an ample justification of war remains in the impressment of our seamen. the claim on our part is not, as has been alleged, a claim to protect british seamen--it is a claim to protect american citizens. nay, more, as respects the justice of the continuance of the war, it is a claim only, that they will cease from the practice during the truce, that it may be seen whether it is possible to arrange it by negotiation. is it unjust to continue the war, till this demand is complied with? or does any american wish to see his country prostrated still lower? having thus far explained my ideas relative to the justice of the commencement and continuance of the war, i will now proceed to answer the third objection, namely: that it is inexpedient to carry it on, because we have no means of coercing our enemy--of compelling him--to what? barely to a just and honorable peace; for that is all we demand. and have we no means of doing this? better, then, to surrender the charter of our independence, confess we are incapable of self-protection, and beg his most gracious majesty to again take us under his paternal care. such a doctrine, sir, is as unfounded, as it is degrading to the american character. we have ample means of compelling great britain to do us justice; they are to be found in the value of our commerce; in the enterprise of our privateers; in the gallantry of our ships of war, and the conquest of her provinces. our custom (considering her in the light of a mechanic or merchant who supplies) is of vital importance to great britain. it is not to be measured by its amount, in pounds, shillings, and pence, but by the strength and support she derives from the intercourse. for, while i admit that great britain does not send half her exports to the united states, i do maintain, that the custom of this country is of more importance to her, than that of the whole world besides. it is with a nation as with an individual, if he exchange luxuries for luxuries, or superfluities, such as ribands for ribands, which he consumes, he adds nothing to his wealth; but if he exchange his luxuries, or his ribands, for bread, or for such materials as give scope to his industry, he is then benefited, and enriched by the interchange. such is the situation of great britain with regard to america. she, and her dependencies, receive more of provision, and raw materials, from america, than from all other parts of the world together. our trade exactly gives effect to her industry, her machinery, and her capital. and it is this which has, in a great degree, enabled her to make such gigantic efforts in the awful contest in which she is engaged. our privateers; will they have no effect on great britain? will she learn nothing from the loss of three or four hundred ships? and will she be insensible to the efforts of our little navy? can they touch no nerve in which britons feel? far different are my conclusions, from what i have seen in british papers--they show that she is tremblingly alive to that subject. sir, i will now consider her provinces, about which so much has been said. i, too, will speak of that wonderful country, called canada, which unites in itself all contrarieties! which is so cold and sterile, as to be not worth possessing; and so fertile, that if, by any calamity it should become ours, it would seduce away our population; which is so unhappy under the british government as not to lure our inhabitants; yet so happy, that it is criminal to disturb their felicity;--whose inhabitants, if united with ours, would destroy us, because they have none of the habits of freemen; and who, well knowing the privileges of their free government, will defend them to the last. a country which is of no importance to great britain, and whose loss would not make her feel; a country which is so valuable to great britain that she will never give it up. a country so weak that it is inglorious to attack it; and a country so strong that we can never take it. but, sir, leaving these, and a thousand other contradictions, the work of fancy or of spleen, i will present to the house what i believe to be a true view of the subject, drawn from a near residence and much careful examination. canada is of great importance both to great britain and the united states. it is important to great britain in the amount and kind of its exports. in the last year preceding war, its exports amounted to between seven and nine millions of dollars, an amount almost as great as the exports of the united states preceding the revolutionary war. and had the most discerning statesman made out an order, he could not have selected articles better adapted to the essential wants of great britain. it has been said that canada is of less value than one of the sugar islands of the west indies. sir, in the present state of the world, canada is of more importance to great britain, in my opinion, than the whole west india islands taken together. in danger, as she is, of being shut out from the baltic, and fighting for her existence, she wants not the luxuries, the sugars, and the sweetmeats of the west indies--she wants the provisions, the timber, the masts, and the spars of the north. canada is also of the greatest importance to the united states, in a commercial and political point of view. i have in a great measure explained its commercial importance, by stating its exports; a large portion of which were the products of the united states. let an attentive observer cast his eye for one moment on the map of north america; let him bear in mind, that from the forty-fifth degree of latitude the waters of canada bound for a vast extent one of the most fertile, and which will become, one of the most populous parts of the united states; and he will readily perceive that the river st. lawrence must soon be the outlet for one-third of all the products of american labor. the same circumstances will enable it to lay an impost on one-third of our imported articles. nor will the evil to our revenue end here. great britain will be enabled to smuggle her goods through this channel into all parts of the union. it will be in vain that you attempt to counteract her by laws; from the great length and contiguity of her possessions, she will forever evade them, unless by your laws you can change the nature of man. but its greatest importance is in a political point of view: for, although not as happy in its government as the united states, it is sufficiently so to draw off multitudes of our new settlers, when the intermediate lands of the state of new york, which separate it from new england, shall be fully occupied. from this circumstance it will divide the american family, and, by the commercial relations which i have pointed out, it will exert a dangerous influence over a part of our country; for the transition from commercial dependence, to political allegiance, is too obvious to be insisted on. having endeavored to show the importance of canada to both of the contending nations, i i will only add that it is within our power. the fourth objection is, that we cannot support the war--that we have not the ability to carry it on. before i proceed to answer this objection, permit me, sir, to notice a single inconsistency of the gentlemen by whom it has been urged. it is this: in one part of their argument, they represent the people as too happy to enlist, and in another part as too poor to pay! both of these propositions, i presume, cannot be true. not to dwell longer, however, upon this contradiction, i do maintain, sir, that the nation is fully able to prosecute the war. on what does the ability of a nation depend? a person who will give himself the trouble of examining things rather than words, will find that it is proportioned to the number of laborers and the productiveness of their labor. wherever, from soil, climate, or improvement, the labor of a country will produce more than a supply of the necessaries of life, it is evident that the surplus time may be devoted to idleness, to the production and consumption of luxuries, or to the carrying on of war. to illustrate this farther--suppose the labor of a person for five days will support him six, then it is clear, that the labor of five men will support the sixth man in idleness or in war. now, sir, there is nowhere that the labor of seven millions of people will produce so much as in this country; consequently, nowhere have seven millions of people so great an ability to carry on a war. the quantity of circulating medium, whether made of paper or of silver dollars, has very little to do with the subject. if it is made of paper, and to a great extent, it only shows that the people are in their habits commercial; and that the faith of contracts is well supported. the real ability of a nation lies in what i have stated; and he must be a weak politician who cannot call it forth. mr. speaker, i will now consider the last, and by far the most important objection of all; and one, without which, i certainly would not have spoken. it is, that in consideration of all the circumstances in which we are placed, it is the duty of this house to withhold the means of further prosecuting the war. it will not be denied, i trust, that this is a fair statement of the scope and object of most of the reasonings which have been employed; and that without this construction, they would be irreconcilable with common sense. this doctrine, in my opinion, goes not only to the overthrow of our constitution, but to the destruction of liberty itself. the principle of our government is, not only that the majority shall rule, but that they shall rule in the _manner_ prescribed by the constitution. so that if it could be proved that a majority of the people were in favor of certain measures, it would not be sufficient till they had pronounced that decision through the _constitutional_ organs. in short, it must have been a principal object with the framers of our constitution to suspend, at least for a limited time, the effects of popular opinion. the constitution has committed the legislative power to three co-equal branches; and to the same hands has it entrusted the power of declaring war; while it has expressly confided the treaty-making power (and which alone can make peace) to two only of those branches. the claim now set up, goes to invest that branch which has no authority in the matter, not only with the treaty-making power, but also with a complete control over the other two branches. thus _one_ branch of the government forcing the nation to _desist_ from doing what _three_, including itself, had thought best to _perform_. let us test the correctness of this principle by applying it to another co-equal branch of the government. let us suppose the president has made a treaty of peace, which is disapproved of by the senate--and suppose upon this he should say, the war ought not to be further prosecuted, and refuse to employ the public force, would you not impeach him? most unquestionably you would. i expressly admit that cases may be imagined, where such a course would be proper--where it would be not only the duty of this house to withhold supplies, but where it would be the duty of an individual to resist the laws; but such are extreme cases, not provided for by any organization of government. what, sir, has been the practice of the british house of commons? have they ever refused supplies because a war was unpopular, since their revolution? did not the same parliament, which resolved that they would consider any man as an enemy to his country, who would advise his majesty to the further prosecution of offensive war in america, still vote the means for carrying on the war? a similar case occurred when mr. fox came last into power--he disapproved of the commencement and conduct of the war, and yet he called for and received the necessary supplies. mr. calhoun observed, that he could offer nothing more acceptable, he presumed, to the house, than a promise not to discuss the orders in council, french decrees, blockades, or embargoes. he was induced to avoid these topics for several reasons. in the first place, they were too stale to furnish any interest to this house or country. gentlemen who had attempted it, with whatever abilities, had failed to command attention; and it would argue very little sagacity on his part not to be admonished by their want of success. indeed, whatever interest had been at one time attached to these subjects, they had now lost. they have passed away; and will not soon, he hoped, return into the circle of politics. yes, sir, as reviled as has been our country's efforts to curb belligerent injustice, as weak and contemptible as she has been represented to be in the grade of nations, she has triumphed in breaking down the most dangerous monopoly ever attempted by one nation against the commerce of another. he would not stop to inquire whether it was the non-importation act, or the menace of war, or, what was the most probable, the last operating on the pressure produced by the former. the fact is certain, that the orders in council of and , which our opponents have often said that england would not yield, as they made a part of her commercial system, are now no more. the same firmness, if persevered in, which has carried us thus far with success, will, as our cause is just and moderate, end in final victory. a further reason which he had, not to follow our opponents into the region of documents and records, was, that he was afraid of a decoy; as he was induced to believe from appearances that their object was to draw our attention from the merits of the question. gentlemen had literally buried their arguments under a huge pile of quotations; and had wandered so far into this realm of paper, that neither the vision of this house has been, nor that of the country will be, able to follow them. there the best and worst reasons share an equal fate. the truth of the one and error of the other, are covered with like obscurity. mr. c. said he would not multiply proof on a course of conduct the bad effect of which was too sensibly felt to be easily forgot, and the continuation of which was but too apparent in the present discussion. for what was the object of the opposition in this debate? to defeat the passage of this bill? it has been scarcely mentioned; and contains nothing to raise that storm which has been excited against it. the bill proposes to raise twenty thousand men only, and that for one year; and surely there is nothing in that calculated to lay such strong hold of the jealousy or fear of the community. what then is the object of the opposition? gentlemen certainly do not act without an intention; and wide as has been the range of debate, it cannot be so lawless as to be without an object. it was not, he repeated, to defeat the passage of this bill; no, but what was much more to be dreaded, to thwart that, which the bill proposes to contribute to, the final success of the war; and for this purpose he must do the opposition the credit to say, they have resorted to means the best calculated to produce the effect. in a free government, in the government of laws, two things are necessary for the effectual prosecution of any great measure; the law by which the executive officer is charged with the execution and vested with suitable powers; and the co-operating zeal and union of the people, who are always indispensable agents. opposition to be successful must direct its efforts against the passage of the law; or, what was more common and generally more effectual, to destroy the union and the zeal of the people. either, if successful, is effectual. the former would in most cases be seen and reprobated; the latter, much the most dangerous, has, to the great misfortunes of republics, presented at all times a ready means of defeating the most salutary measures. to this point the whole arguments of opposition have converged. this gives a meaning to every reason and assertion, which have been advanced, however wild and inconsistent. no topic has been left untouched, no passion unessayed. the war has been represented as unjust in its origin, disastrous in its progress, and desperate in its farther prosecution. as if to prevent the possibility of doubt, a determination has been boldly asserted not to support it. such is the opposition to the war, which was admitted on all sides to be just; and which in a manner received the votes even of those who now appear to be willing to ruin the country in order to defeat its success. but, say our opponents, as they were opposed to the war, they are not bound to support it; and so far has this opposition been carried, that we have been accused almost of violating the right of conscience, in denying the right set up by gentlemen. the right to oppose the efforts of our country, while in war, ought to be established beyond the possibility of doubt, before it can be justly adopted as the basis of conduct. how conscience can be claimed in this case cannot be very easily imagined. we oppose not by laws or penalties; we only assert that the opposition experienced cannot be dictated by love of country, and is inconsistent with the duty which every citizen is under to promote the prosperity of the republic. its necessary tendency is to prostrate the country at the feet of the enemy, and to elevate a party on the ruins of the public. till our opponents can prove that they have a right which is paramount to the public interest, we must persist in denying the right to thwart the success of the war. war has been declared by a law of the land; and what would be thought of similar attempts to defeat any other law, however inconsiderable its object? who would dare to avow an intention to defeat its operation? can that, then, be true in relation to war which would be reprobated in every other case? can that be true which, when the whole physical force of the country is needed, withdraws half of that force? can that be true which gives the greatest violence to party animosity? what would have been thought of such conduct in the war of the revolution? many good citizens friendly to the liberty of our country were opposed to the declaration at the time; could they have been justified in such opposition as we now experience? to terminate the war through discord and weakness is a hazardous experiment. but, in the most unjust and inexpedient war, it can scarcely be possible, that disunion and defeats can have a salutary operation. in the numerous examples which history furnishes, let an instance be pointed out, in any war, where the public interest has been promoted by divisions, or injured by concord. hundreds of instances may be cited of the reverse. why, then, will gentlemen persist in that course where danger is almost unavoidable, and shun that where safety is almost certain? but, sir, we are told that peace is in our power without a farther promotion of the war. appeal not, say our opponents, to the fear, but to the generosity of our enemy. england yields nothing to her fears; stop, therefore, your preparation, and throw yourself on her mercy, and peace will be the result. we might, indeed, have pardon, but not peace on such terms. those who think the war a sacrilege or a crime, might consistently adopt such a course; but we, who know it to be for the maintenance of the just rights of the community, never can. we are farther told that impressment of seamen was not considered a sufficient cause of war; and are asked why should it be continued on that account? mr. c. observed that he individually did not feel the force of the argument; for it had been his opinion, that the nation was bound to resist so deep an injury even at the hazard of war; but, admitting its full force, the difference is striking between the commencement and the continuance of hostilities. war ought to be continued until its rational object, a permanent and secure peace, could be obtained. even the friends of england ought not to desire the termination of the war, without a satisfactory adjustment of the subject of impressment. it would leave the root that must necessarily shoot up in future animosity and hostilities. america can never quietly submit to the deepest of injury. necessity might compel her to yield for a moment; but it would be to watch the growth of national strength, and to seize the first favorable opportunity to seek redress. the worst enemy to the peace of the two countries could not desire a more effectual means to propagate eternal enmity. but it is said that we ought to offer to england suitable regulations on this subject to secure to her the use of her own seamen; and because we have not, we are aggressors. he denied that we were bound to tender any regulations, or that we had not. england was the party injuring. she ought to confine her seamen to her own service; or, if that was impracticable, propose such arrangements that she might exercise her right without injury to us. this is the rule that governs all analogous cases in private life. but we have made our offer; it is, that the ship should protect the sailor. it is the most simple and only safe rule; but, to secure so desirable a point, the most liberal and effectual provisions ought and have been proposed to be made on our part to guard the british government against the evil they apprehended, the loss of her seamen. the whole doctrine of protection heretofore relied on, and still recommended by the gentleman from connecticut, (mr. p.,) is false and derogatory to our honor; and under no possible modification can effect the desirable objects of affording safety to our sailors, and securing the future harmony of the two countries. nor can it be doubted, if governed by justice, she will yield to the offer of our government, particularly if what the gentleman from new york (mr. bleecker) says be true, that there are ten thousand of her seamen in our service. she would be greatly the gainer by the arrangement. experience, it is to be feared, however, will teach that gentleman that the evil lies much deeper. the use of her seamen is a mere pretence. the blow is aimed at our commercial greatness. it is this which has animated and directed all of her injurious councils towards this country. england is at the same time a trading and fighting nation; two occupations naturally at variance, and most difficult to be united. war limits the number and extent of the markets of a belligerent, makes a variety of regulations necessary; and produces heavy taxes, which are inimical to the prosperity of manufactories and consequently commerce. these causes combined give to trade new channels, which direct it naturally to neutral nations. to counteract this tendency, england, under various but flimsy pretences, has endeavored to support her commercial superiority by monopoly. it has been our fortune to resist with no inconsiderable success this spirit of monopoly. her principal object in contending for the right of impressment is to have, in a great measure, the monopoly of the sailors of the world. a fixed resistance will compel her to yield this point as she has already done her orders in council. success will amply reward our exertions. our future commerce will feel its invigorating effects. but, say gentlemen, england will never yield this point, and every effort on our part to secure it is hopeless. to confirm this prediction and secure our reverence, the prophecies of the last session are relied on. mr. c. felt no disposition to disparage our opponents' talents in that line; but he very much doubted whether the whole chapter of woes had been fulfilled. he would, for instance, ask whether so much as related to sacked towns, bombarded cities, ruined commerce, and revolting blacks, had been realized? such, then, is the cause of the war and its continuation; and such the nature of the opposition experienced, and its justification. it remains to be seen whether the intended effect will be produced. whether animosity and discord will be fomented, and the zeal and union of the people to maintain the rights and indispensable duties of the community will abate; or, describing it under another aspect, whether it is the destiny of our country to sink under that of our enemy or not. mr. c. said he was not without his fears and his hopes. on the one hand our opponents had manifestly the advantage. the love of present ease and enjoyment, the love of gain, and party zeal, were on their side. these constitute part of the weakness of our nature. we naturally lead that way without the arts of persuasion. far more difficult is the task of the majority. it is theirs to support the distant but lasting interest of our country; it is theirs to elevate the minds of the people, and to call up all of those qualities by which present sacrifices are made to secure a future good. on the other hand, our cause is not without its hope. the interest of the people and that of the leaders of a party are, as observed by a gentleman from new york, (mr. stow,) often at variance. the people are always ready, unless led astray by ignorance or delusion, to participate in the success of the country, or to sympathize in its adversity. very different are the feelings of the leaders; on every great measure they stand pledged against its success, and almost invariably consider that their political consequence depends on its defeat. the heat of debate, the spirit of settled opposition, and the confident prediction of disaster, are among the causes of this opposition between the interest of a party and their country; and in no instance under our own government have they existed in a greater degree than in relation to the present war. the evil is deeply rooted in the constitution of all free governments, and is the principal cause of their weakness and destruction. it has but one remedy, the virtue and intelligence of the people--it behooves them, as they value the blessings of their freedom, not to permit themselves to be drawn into the vortex of party rage. for if by such opposition the firmest government should prove incompetent to maintain the rights of the nation against foreign aggression, they will find realized the truth of the assertion that government is protection, and that it cannot exist where it fails of this great and primary object. the authors of the weakness are commonly the first to take the advantage of it, and to turn it to the destruction of liberty. mr. desha.--mr. speaker, it is not my intention to detain you long; my principal object in rising is to conjure gentlemen to bring this debate to a close. sir, what can gentlemen flatter themselves by suffering this discussion to be protracted to so unwarrantable a length? it cannot be supposed that the substantial part of this house (i mean those who think much and speak little) will, by theoretical or sophisticated remarks, be driven from their course. then, sir, those long-winded speeches must be either intended for the gallery, or for gentlemen's constituents. it would certainly be unjustifiable to sport away the public money; to exhaust the public patience in making long speeches, merely for the purpose of amusing the ear of the gallery. and, sir, your constituents would much rather you would act with decision, with promptitude, in adopting measures calculated for a vigorous prosecution of the war, that it might be brought to a speedy and honorable termination, than to take up weeks in detailing the causes of the war. the people are fully apprised of the causes of the war, from the documents that have been promulgated; they are satisfied that it is a just and necessary war: that it has been forced upon us by the injustice and oppression of our enemy, occasioned in a great measure by the violent opposition of a party to the administration. sir, act so as to give a vigorous prosecution to the war, and act promptly, and the people will support you with manly firmness, independent of the consideration of expense. mr. speaker, this bill contemplates raising twenty thousand men for one year. although i shall vote for the bill under consideration, i do not altogether approve of it. sir, the time of service is too short to answer a valuable purpose. i am not so sanguine as to suppose that we will overrun the british provinces in one season. i should like it much better if the time of service, as has been proposed, was extended to eighteen months, and the bounty raised in proportion. you would then have the advantage of two campaigns; in the last of which, you might calculate on a certainty of being able to do something of a decisive character, as you would have the advantage of disciplined troops; and really, sir, if this bill is to answer any valuable purpose, it ought to have been passed some time since. gentlemen certainly must see that the object of the opposition is procrastination; they have predicted that the bill under consideration, if adopted, will not only run the country to extraordinary expenses, swell the national debt to an enormous size, but that it will ultimately bring disgrace on the government. and, sir, they are determined that their predictions shall be realized, by putting off the passage of the bill until late in the season thereby preventing you from obtaining the men in time to do any thing of a decisive character next summer. this, in my mind, is unquestionably their object; and i believe the ambition of some of them is such, that, rather than be found false prophets, they would endanger the only republic in the world. sir, i do not wish to be understood to include the whole federal party; far from it. i believe there are some, and i hope a considerable portion, who are american in principle, and would, perhaps, go as far as any american in defending their country's rights. sir, it is not my intention to arraign motives; but, speaking of party, what has been the conduct of the federalists for twelve years past, ever since the termination of the reign of terror? a uniform opposition to every thing of a prominent character proposed by the different republican administrations. now, sir, if mr. jefferson and mr. madison had been the weakest of men, as well as the wickedest, (which no man in his senses, who had any respect for his character, or standing in society, would assert,) they must have accidentally happened on something right in the course of twelve years. mr. speaker, it is mortifying to see gentlemen who call themselves americans, rise up in the face of the nation to palliate and vindicate the conduct of an enemy, and at the same time reprobate, in the strongest language of ridicule, every step proposed by the administration calculated to counteract the iniquitous and destructive policy of our enemy. can such conduct be called american? sir, when it ought to be the duty and pride of every man having any pretensions to american principles, to rally under the governmental standard, in order to assist in expelling our tyrannical oppressors from the continent, by which extricating the government from its present difficulties, you see the federal party making every exertion in their power to make the war a dishonorable one. i know, mr. speaker, that it is in the nature of tyrannical or despotical governments to take arbitrary strides; yet, sir, i do believe that the impositions and oppressions heaped upon the american government; the evils under which we at this time labor, are measurably, if not entirely, attributable to the party hostility arrayed against the administration. sir, they have, by their uniform opposition, led the british to believe that they had a powerful party in this country; that parties were nearly equally balanced; that it would be impossible for a republican administration to adhere to any decided stand taken against england, and that finally the english party would prevail. thus, sir, have government been beset by party. they have been baffled in every peaceable step calculated to vindicate our rights, or redress our grievances, until, by the injustice of our foreign enemy, bottomed on the aid they calculated on receiving from our domestic foes, the government have been forced into war. and now you are told to put a stop to the war, and try once more if briton will not do us justice. degrading thought! sir, we have already humbled ourselves in making proposals, and all efforts on the part of the administration failed. the world has seen and understood that the failure was attributable to her own wickedness, and not to our pertinacity. sir, the american administration has exhibited an example of moderation unparalleled in the annals of the world; our forbearance has astonished the universe, and we have the consolation to see that neither the guilt of aggression, nor the folly of ambition, can be fairly attributed to it. negotiation, as well as patience, has been exhausted. instead of appealing again to the justice of a government that makes principle bend to power, we have been necessarily compelled (though reluctantly) to appeal to arms, and i trust in god that they will never be laid down short of justice. mr. cheves rose.--it was for some time during this debate, said he, my intention to have mingled my unimportant opinions and sentiments with those of other gentlemen in this discussion; but i gave way from time to time before the eagerness of others who were desirous of presenting themselves to your attention, and i had entirely abandoned the idea of taking any part in the argument; but the sudden and unexpected indisposition at this moment of my worthy friend and honorable colleague, (mr. williams,) the chairman of the committee with whom this bill originated, who was expected to close the debate, has left a vacuum in the argument which i propose to fill. could he have addressed you, as he was prepared and anxious, in the faithful discharge of his duty to do, it would have rendered the feeble attempt which i shall make as unnecessary as it would have been impertinent and obtrusive. i propose, then, to speak, as my honorable friend would probably have done, generally, but briefly, on the several heads of discussion which have been introduced into the debate, which has not been on the bill before you, but on the general merits of the war; the origin, progress, and continuance of it. i mean not to censure the wide range which this discussion has taken. it is fair and right in gentlemen of the opposition to select some occasion during each session on which to discuss the great questions of state which the public events of the passing times present; and the one furnished by the bill before you was perhaps as proper as any other. almost all the gentlemen who have addressed you, have very gravely told you, by way of exordium, of their unquestionable right to do so, and of the firmness with which they mean to assert and exercise it, as if there had been, at any time, really an opposition to this freedom of discussion. these introductions must be a little amusing to the members of this house and to the attendants in your galleries, who have been in the habit of listening to the gentlemen. but if there ever could have been a doubt on this subject, and surely there never was any, the debate, which i hope is about to be closed, affords an ample refutation of it. there are parts of this debate which will descend to distant posterity as a monument of the freedom of discussion in this hall. i trust, sir, we shall furnish few such testimonials--i hope never to see another exhibition on this floor. they must be looked upon with apprehension by all those who consider the restraints of personal politeness and the urbanity of social esteem as affording a better security to those who love peace and good manners, for the preservation of these valuable objects, than can be lent by the strongest arm or the severest sanctions which positive institutions have established; restraints under which even "vice itself loses half its evil, by losing all its grossness." i shall imitate the example of gentlemen who followed in the debate--i shall pour oil upon the waves, and endeavor to still the raging of the storm. gentlemen, fruitful in epithets, yet rather fruitful in their abundance than in their variety, have called this an unjust, wanton, wicked, and unnecessary war. i, on the contrary, assert it to be a just and necessary war. one characteristic difficulty here presents itself, which has occurred in all the discussion in and out of this house on this subject. what is a just and necessary war? by the advocates of war it is asserted that the injuries and insults of the enemy demanded war, and rendered this war just and necessary. the opponents of war admit the magnitude of the insults and injuries, but deny the inference. they assert that the war is unnecessary and not justifiable, because the pecuniary expenditure and loss will exceed in value the commercial objects for which we are contending. the advocates of war deny both the premises and the conclusion. the objects of the war are not merely commercial, but, if they were, the inference is denied. they admit that the pecuniary expenditure and loss will exceed the pecuniary value of the commercial objects for which they contend, but they deny that a war for commercial objects is therefore unnecessary or indefensible. to an intelligible argument it seems, therefore, under these circumstances, necessary that we should begin by some definition of a just and necessary war; and yet it seems to be a melancholy labor in a great and free state, where public sentiment should be unequivocal on such subjects, to proceed by rules of logic to establish great first principles of public sentiment; but i fear that, as all good things are purchased by concomitant sacrifices, we have not obtained the innumerable blessings and advantages of the freedom of speech and of the press for nothing. i fear they have sometimes substituted an erring reason for a better guide--the great uncontaminated current of public feeling--the moral sense of the nation, of which the honorable gentleman from massachusetts (mr. quincy) so often tells so much. but we must inquire, what is a just and necessary war? a war is just and necessary when waged to protect and defend the violated pecuniary interests of the country; or to defend and secure the sovereign rights and independence of a country; or, lastly and principally, to support and maintain the national honor. the last, indeed, embraces all the others; and, if i have distinguished, it is rather in conformity with custom, or for the purpose of elucidation than from any practical separation which i admit between the last and the former. but i am likely to incur the derision of the honorable gentlemen in the opposition by speaking of national honor. they seem not to have admitted the term into their vocabulary; they treat it as a new language; they remind me of the character of _goldfinch_ in one of _holcroft's_ plays, who, when he hears the romans mentioned, exclaims, "romans! romans! who are they?" so the gentlemen, "national honor! what's that? what's that?" yet, sir, strange as it may seem to the honorable gentlemen over the way, the maintenance of the principle of national honor, by which i mean that principle which animates and sustains an elevated fitness of character and conduct, is the only justifiable cause of war; and, if necessary, the principle ought to be maintained by all the sacrifices of war in its worst shape. no war is justifiable or necessary which is waged merely for pecuniary objects, if we can suppose such a war, for all wars involve expense and loss greater than the amount of any pecuniary objects for which they can be waged. on the ground of interest merely they would not, therefore, be justifiable; and there is to be superadded, what cannot be valued in money, the value of human life. but the value of every thing is founded on the security with which it is enjoyed. one unpunished violation of right provokes another and another, until all security is destroyed; and, therefore, it is necessary to resist given infractions of pecuniary right by sacrifices beyond the value of the right itself, because resistance is necessary to the security of all other pecuniary rights--nay, to the security of all other rights. security of rights is a political thing; it is the protection of government; it derives its value, and a great portion of its power, too, from a faithful and unrelaxed application of it to all the rights and interests of a nation; and is diminished in its value, and in its power also, by any failure to afford the protection which is due by government to the subjects and the interests under its control. to abandon any interest is to abandon all, and to protect one is to protect all; war, therefore, waged to protect one political right is waged to protect all political rights; no war is, in consequence, made for any given right merely as such, but for all the rights and interests which are bound together in a nation under the social and civil compacts. to compare the expenditure and losses of war with the value of commercial objects, which may be the immediate cause of war, is to talk idly, and to forget the true end of all war and the first great purpose of government--security. a great man (sir james mackintosh) has said, "the paramount interest of every state, that which comprehends all others, is security." will you, then, it may be inquired, go to war to avenge the infraction of the smallest right under the protection of government, and for this object jeopardize every other, and spill the blood of your fellow-citizens? certainly not. there is a fitness which cannot be defined in anticipation, but which is easily discoverable when the occasion occurs, which determines when a war is necessary. it may depend upon the nature of the injury; on the character which the nation has acquired; on its ability to avenge the injury; on the character of the nation which has inflicted the injury, and a thousand other circumstances. the question ought always to be, what becomes the nation? what is due to the national honor? what is necessary to sustain an elevated fitness of character and conduct in the nation? if the injury sustained be one which cannot or will not probably be repeated, it is less necessary to avenge it. if the nation be poor and feeble, it may be obliged to submit to the violation of a great right. if it be great and powerful, it must sometimes resent a smaller injury; it may sometimes disdain to notice a considerable aggression upon its rights; in short, in no instance is the expense of the war a rule which will prove it just and necessary, or otherwise; in every instance is national honor, that is, a fitness of character and conduct, the rule by which its necessity and justifiable character are determinable. generally when a nation is able to resist with effect the infraction of important pecuniary rights, it seems indubitable that an elevated fitness of character and conduct requires resistance. but this obligation is increased, and is less doubtful when any of the sovereign rights of a nation are infringed, as in gross and reiterated insults to the national flag, habitual violations of the personal liberty of its subjects, invasion of its territories, and the like; these are assaults upon its independence, and there is no room left for an inquiry into the fitness of resistance; it may indeed be supposed to change from a question of expediency to an act of necessity; it is a struggle for self-preservation; the nation acts upon a principle which is inherent in the meanest insect, and of which inanimate matter is not divested; the worm, when trodden on, writhes in resistance as well as anguish, and the reaction of inanimate matter seems to be the repulsive act of self-preservation. what, then, did an elevated fitness of character and conduct require of the american government, in relation to great britain, at the moment war was declared? what does it still require? i repeat, the war is a just and necessary war. this will be proved by adverting to the causes of the war. what, then, were the causes of the war? they were principally new and before unheard-of blockades--the orders in council, which have been generally so called, by way of pre-eminence; the spoliations of our commerce under various unfounded and insulting pretexts, and the impressment of our seamen. i am not permitted by the circumstances under which i address you to go at length into any of these subjects. but i may ask, what on the ocean did we enjoy but by the sufferance of great britain? what insults, what injuries had we not suffered? when did they begin; when, though they may have been varied in character, were they relaxed in degree, and when were they probably to cease? great britain has been properly selected as the first object of our hostility. when a proposition was made to include france as well as great britain in the declaration of war, gentlemen on neither side of the house did support it. the opposition prints throughout the union laughed it to scorn. few men thought of resisting both at once. the voice of both parties appeared to be against it. the government, obliged to resist, was obliged to select its enemy. should france have been selected? with the blood of our citizens insultingly slaughtered without the slightest provocation, on the shores of our own territory, unatoned for till the moment of the declaration of war, with the habitual impressment of our seamen in every sea, with the continual and reiterated violation of your right to seek where you choose a market for your native produce, all before your eyes, and with no hope of a discontinuance of these injuries, we are told that we ought to have diverted our enmity from great britain, and directed it against france. where, sir, could we attack france? where are her colonies into which we could carry our arms? where could we subjugate her provinces? where are her ships?--where her commerce? where could we have carried on against her any of the operations of war? would the chivalry of gentlemen on the other side of the house have suggested an invasion of france? an honorable gentleman from new york, (mr. gold) said it would not have required another man nor another ship, to have resisted france. but, why, i pray you? because such a resistance would have been confined to the idle and nugatory act of declaring it. effectual resistance would have been impracticable. gentlemen would resist france, would declare war against france, merely to show their indignation at her perfidy and injustice; and here i confess my feelings go with the gentlemen--i would do so too, had we no other enemy to contend with. but if we had abandoned or deferred our resistance to the injuries of england and as a pretext for it assailed france, would not the act have been idle and weak? would it not have been wicked, to borrow one of the epithets which gentlemen have applied to the war with england, so to have sported with the public feelings and the national resentment as to have declared war against france, the minor aggressor, whom we could not touch, and to have suppressed our resentment against great britain, whose injuries were unlimited and unceasing, and whom alone we could reach? but why, sir, are the injuries these nations have done contrasted, and those of the one made an apology for those of the other? why are we partisans of either? have we no country of our own? is there a land upon the globe so fair, so happy, and so free? and, beholding and enjoying these blessings, "breathes there a man with soul so dead who never to himself hath said, _this is my own, my native land_!" sir, i feel neither as a frenchman nor briton, but as an american. as a citizen of the united states, i bear no affection to any other country. if i have any feeling of partiality for either of the great belligerents, it is for the country, and the people of great britain. from them i draw my blood in a very short descent. but that nation is the injurer of my country, and i can see her in no other light than that of an enemy, nor can i find any apology for her in the injuries france has done us. sir, the government did right in discriminating between britain and france, and selecting the former. it was the only mode of real practical resistance. the world would have laughed at us had we declared war against france, who was no longer able to injure us, whom we could not assail with effect, and have left the unceasing injuries of great britain to go on unresisted and unresented. the world would have considered it as a mere cover for our pusillanimity. i say, then, that the government was not tricked into a war with great britain. it was commenced in the prosecution of the best and most deliberate policy. it was the only honorable and practicable course. if there has been an error, and i think there has, it was in not having long since resisted england. war against england should have followed the first embargo; that was a wise measure, but it could not endure forever; it carried the policy of commercial restriction upon the enemy as far as such a policy should ever be carried, which from its nature can only be temporary. it at the same time prepared the nation for war; it brought home your wealth and seamen; it brought home your vessels, and placed you in the attitude in which the nation ought to have been previous to war, and its termination ought to have been followed by immediate and vigorous war. the pulse of the nation was high, and the confidence of the people in their rulers and resources great. distrust has grown out of the hesitation and timidity then manifested. if the embargo had been followed up by war, some of the greatest injuries we have since suffered would not have occurred. france would not have ventured to have seized and sequestered our vessels and property as she subsequently did. she was tempted to do it because she saw we would suffer and submit to any injury. gentlemen say, that popular opinion was against the war. i deny it, sir. it was called for by popular opinion; and this will not be disproved, however soon popular opinion shall incline to peace, and gentlemen on the other side of the house regain the reins of power, as they are not unlikely to do, however just and necessary the war. any man who thought with half the ability with which the gentlemen do, must have believed that in voting for war, he was probably surrendering himself politically a victim on the altar of his country; yet it is frequently declared, that the majority have declared this war to preserve their seats. they declared it against popular opinion, too, to preserve their seats, which they hold by the tenure of popular opinion! are gentlemen serious? look at the history of nations, and see if the war-makers have been generally the peacemakers. but war was prematurely declared, it is said, because we had not a regular disciplined army at the time. preparation for operations on land must have been relative to the defence of our own territory, or the invasion of the enemy's territory. the militia are the proper and the adequate defenders of the soil on which they live; for this purpose we did not want any other army. they might have been made more extensively useful. i join not with their revilers--i wish that their usefulness had not been circumscribed by a doctrine subversive of the true principles of the constitution which was maintained on this floor. i rejoice that i combated that doctrine; yet i do not mean to consider them as a fit army of invasion. i acknowledge that we were not prepared with a regularly-disciplined army, qualified for the invasion and conquest of the enemy's country. but should we have been prepared by winter, the time to which gentlemen wished to have deferred the declaration of war? it is a truth that a government like ours never will, and never can, be prepared for war in peace. the great and effective preparation for war must grow out of the progress and events of the war. notwithstanding our disasters on land, i believe our preparation is greater, and our situation better, than it would have been had the war been deferred. we were to expect, in the commencement of the war, to suffer such misfortunes. except in the affair of detroit, nothing has happened which should cause us to blush: that disgrace, like the disgrace of the chesapeake, will be the harbinger of glory--i take it as an omen of victory. i pledge myself, if the war continue it will be so in the event. as the war stands at this moment, we have suffered little, and we have humbled the pride of the enemy where it was most insulting. we have insured the confidence of the nation, from the seashore to the mountains beyond them, as far as our population reaches, in our naval ability. i ask the gentlemen on the other side of the house, whether we have not gained something in this respect by the war? in one word, who would now commence the war and take the chance of better success in preference to the actual fortune of the war since it has been declared. it was not prematurely declared. i now contend the war ought to be continued. some gentlemen have thought fit to say in debate, that the only alleged cause of war was formed by the orders in council. but from their own act, their celebrated protest, i will prove the contrary. impressment is there enumerated as among the causes of war, as it was in all the public acts of the time relative to the causes of war. without more words, i am authorized in asserting that impressment was one of the principal causes of the war; and although had the orders in council been revoked, and their revocation known to us before war was declared, we would no doubt have temporized longer; yet this cause itself must in the end have produced war. it appears that very soon after the general government went into operation, this practice was the subject of remonstrance; this was under the administration of general washington. it has been the subject of negotiation and remonstrance under every succeeding administration. but it is alleged, because it was not settled in the treaty of , that it was not considered by general washington as justifiable cause of war, and it is inferred that it ought not now to be considered as sufficient cause for the continuance of the war. what, sir, shall constitute cause of war? the spoliation of your property? not so, say gentlemen, because the expenditure for redress will be greater than the injury sustained. the violation of the personal liberty of your citizens and the degradation of the ensign of your sovereignty? no, say gentlemen, general washington did not consider these as sufficient cause of war. will, then, any injury, or any combination of injuries, authorize or require national resentment? the reasoning of the gentlemen would lead us to a negative conclusion. but in their estimate of the actual causes of the present war, they appear to consider the business of impressment as trivial, and the orders in council as every thing. what, sir, will you go to war for property, the value of which is only relative, and which, compared with personal liberty, is worthless, and refuse to go to war for the personal liberty of the citizen? for that which is alike "given to the fool, the vain, the evil-- to ward, to waters, chartres, and the devil!" you will wage war, and not to rescue your fellow-citizens from imprisonment and stripes? but however this subject was to be viewed before we were actually involved in war, it must now be put on a footing of certainty; if our claim be not secured it will be surrendered; to make peace without obtaining any security against the abuse of which we complain, would be to acquiesce in it, and to acquiesce in it would be to surrender the rights of the country. this was the reasoning of mr. king, who in one of his communications to government on this subject says, he has abandoned negotiation, because to acquiesce in the views of the british government would be to surrender our rights. and shall i be obliged, sir, to come here with volumes of documents to prove the rights of the citizen; to demonstrate that the naval officers of britain have not a right to incarcerate him; to drag him to the gangway and flog him? shall i be obliged by a laborious process of reasoning to prove the obligation of government to rescue him from such suffering? no, gentlemen generally have abandoned this ground, and say, that the impressment of our citizens is, under proper circumstances, justifiable cause of war; and the gentleman from north carolina, (mr. pearson,) who opened the debate on this subject says, that if a fit proposition, accompanied by means calculated to give it a fair chance of success, were tendered and did not procure a cessation of the practice of impressment, he would support the war. what is the proposition which he submits? that we shall prohibit from serving in our ships the seamen of great britain and other foreign seamen, and confine our crews to our own citizens. this being done he will support the war. i challenge gentlemen on the other side of the house to say distinctly to the people, for whom an honorable gentleman (mr. quincy) has said this debate was intended, that this war should not be continued for the protection of our seamen; they will not, they dare not. but if they are against the continuance of the war, it is on that ground and no other. the honorable gentleman from virginia (mr. randolph) says, great britain has a right to insist on the services of her own subjects, and that england would not be england if she could not command them. i say that america will cease to be america if she suffers her to command them at the price of the liberty of her citizens and the honor of her flag. the same gentleman says, england will nail the flag to the mast and go to the bottom with it, rather than surrender the right of taking her seamen from on board our merchant vessels. i hope, sir, we shall imitate the noble example she sets us, and make every sacrifice rather than give up our citizens to bondage and stripes. but, say gentlemen, the public law of all nations on earth, ancient and modern, has denied the right of expatriation. admit that they are correct, and for the purpose of the argument, i do admit that such is the general law. but what is this law as modified by the practice of nations? every nation which has thus forbidden expatriation has at the same time granted naturalization, and the general practice of nations is undoubtedly the law of nations. does not england naturalize foreigners? does she not naturalize your citizens? if she does not do it as generally as you do, it is because it is not her policy to do so; it is enough that she naturalizes your seamen; it is enough that all nations have, at the same moment, forbidden expatriation and granted naturalization. the law must be the result of neither exclusively, but of both these practices. mr. burke, (the great edmund,) who was certainly no innovator, denominates charles xii. the murderer of patkul. patkul was born a swedish subject and had repeatedly taken up arms against his sovereign; he was adopted by russia and had been her minister at the court of poland. charles xii., the sovereign to whom his natural allegiance was due, obtained possession of his person and put him to death--this act mr. burke denominates murder! governments which have naturalized foreigners have protected their naturalized subjects, and the government to whom the native allegiance of such subjects was due, though they have denied the right of expatriation, have not impugned the protecting interposition of the adopted sovereign. if they have, it has been considered as an act of unprincipled violence, and in the instance of patkul has merited and received the denomination of murder. on this subject i will quote a single sentence from one of mr. king's letters; he says, "it behooves the british government to adhere to the principle of natural allegiance wholly, or renounce it wholly." contending themselves for the right of naturalization, can the british government deny it to others? on the part of this government sufficient evidence of its pacific and accommodating disposition appears in its offer to surrender every thing it can, consistently with national faith. on the part of britain a protraction of the war, by refusing to meet us on the terms proposed, can proceed from no other motive than a determination to continue that abuse of power which she has inflicted and we have suffered so long. the ground taken by this country is what we must insist upon keeping, and i doubt not we will succeed if we contend for it as we ought. the informality of the negotiation between our chargé d'affaires and the british government has been mentioned as a cause of its failure. if there had been an amicable disposition on the part of the british government, the authority would have been considered ample. if there be not an amicable disposition we will negotiate in vain. we must fight, or we shall never succeed in obtaining a recognition of our rights. i will advert to one argument of the gentleman from new york, (mr. emott,) who has examined this subject with ability. it is that one which appeared to me to make the greatest impression on the house. he said he had examined the voluminous document on the subject of impressment, which was printed during the last session by order of the house, and that it did not appear from that document that more than ninety-three american seamen had been impressed in the year ; from which i believe every one who heard him inferred that it was proved affirmatively by that document, that no more than ninety-three american seamen, who were named therein, were impressed in that year. now, what is the fact? the document does not state in one case, perhaps of eight or ten, when the impressment took place, and there are one thousand five hundred and fifty-eight persons named in that document. of course the gentleman could not be authorized to say that but ninety-three, or any other precise number, were impressed in . all those, the date of whose detention is not stated, may have been impressed in . it is probable much the greatest portion was. a more particular examination of this point of inquiry will prove the magnitude of the evil. from the st of april, , to the th of september, , a period of eighteen months only, a single agent of this government, in london, received one thousand five hundred and fifty-eight applications from impressed seamen. how many were unable to apply? men imprisoned on board ships of war, scattered over the ocean and on distant stations, how could they apply to mr. lyman in london and give in their names? the number impressed must have been great, indeed, when a single agent in the short space of eighteen months, registered the names of one thousand five hundred and fifty-eight applicants. of this number a part was discharged, acknowledged to be americans beyond the possibility of denial; a small number is detained as being born in england, and the remainder are detained under various pretexts--such as supposed to be born in england, being on distant stations, having consular certificates proving them danes, swedes, &c.; as if they had any better right to take from on board an american vessel a swede or a dane than an american citizen. even their own doctrine goes to assert a right to seize none but their own subjects. i ask, now, whether the impression made by the gentleman from new york was a just one? whether it does not appear probable that at least one thousand of those contained in this list were impressed without even a plausible pretext? but if in a single statement i make out a result so variant from the statement of the gentleman, i beg you and the public to test the other statements of the gentleman in the same way. not, sir, that the gentleman made the statement with any unfair intention, for no man is more honorable or correct--he has my highest esteem--but, it will show how liable we are to err--nay, how prone we are to err when our feelings and habit of thinking run with our argument. so much for impressment. it is an abuse such as cannot be tolerated by an independent nation. it is one which ought to be resisted by war. the question was then taken on the passage of the bill, and decided in the affirmative--for the bill , against it , as follows: yeas.--willis alston, jun., william anderson, stevenson archer, daniel avery, ezekiel bacon, david bard, josiah bartlett, burwell bassett, william w. bibb, william blackledge, robert brown, william a. burwell, william butler, john c. calhoun, francis carr, langdon cheves, james cochran, john clopton, lewis condict, william crawford, richard cutts, roger davis, john dawson, joseph desha, samuel dinsmoor, elias earle, william findlay, james fisk, meshack franklin, thomas gholson, isaiah l. green, felix grundy, bolling hall, obed hall, john a. harper, aylett hawes, john m. hyneman, richard m. johnson, joseph kent, william r. king, abner lacock, peter little, aaron lyle, thomas moore, william mccoy, samuel mckee, alexander mckim, arunah metcalf, samuel l. mitchill, jeremiah morrow, hugh nelson, anthony new, thomas newton, stephen ormsby, israel pickens, james pleasants, jun., benjamin pond, william m. richardson, samuel ringgold, thomas b. robertson, john rhea, john roane, jonathan roberts, ebenezer sage, lemuel sawyer, ebenezer seaver, john sevier, adam seybert, samuel shaw, george smith, john smith, william strong, john taliaferro, george m. troup, charles turner, jr., william widgery, and richard wynn. nays.--john baker, abijah bigelow, hermanus bleecker, james breckenridge, elijah brigham, epaphroditus champion, martin chittenden, matthew clay, thomas b. cooke, john davenport, jr., william ely, james emott, asa fitch, thomas r. gold, charles goldsborough, edwin gray, jacob hufty, richard jackson, jun., philip b. key, lyman law, joseph lewis, jr., william lowndes, archibald mcbryde, james milnor, jonathan o. mosely, joseph pearson, timothy pitkin, jun., elisha r. potter, josiah quincy, john randolph, william reed, henry m. ridgely, william rodman, daniel sheffey, richard stanford, lewis b. sturges, samuel taggart, benjamin tallmadge, uri tracy, laban wheaton, leonard white, and thomas wilson. _ordered_, that the title be, "an act in addition to the act, entitled 'an act to raise an additional military force, and for other purposes.'" friday, january . _land claims in missouri territory--confirmation of private claims--pre-emptions._ mr. hempstead observed, that he had certain resolutions to submit, on which, as they were somewhat in detail, he would ask the liberty to make a few remarks. under the second section of the first act for adjusting land claims in the territory of louisiana, (now missouri,) each actual settler was entitled to six hundred and forty acres of land, together with such other and further quantity as heretofore had been allowed for the wife and family of such actual settler, agreeably to the laws, usages, and customs of the spanish government. a majority of the board of land commissioners in that territory were, under that section, so liberal in their grants, that it excited the alarm of government. this alarm, sir, was soon transferred to the people, and has continued ever since; because a majority of the board passed from one extreme to the other, and granted, in many instances, only one hundred, one hundred and fifty or two hundred arpens, where they had before granted seven or eight hundred arpens. the grants for the smaller quantities are contained in the lists of grants, and being final against the united states, would never come before congress, unless upon petitions from individual claimants. other boards of commissioners, acting under the same law, have granted to the actual settler in every instance, when the law had been complied with, six hundred and forty acres; and it would seem to me, sir, that the people of the missouri territory are entitled to the same justice. the second resolution is to provide as well for rejected claims, in which no testimony has been adduced, as when testimony has been received; and to prevent individual claimants from loading our table with petitions. the mode pointed out will present all claims to congress at one time. with these observations i shall submit the resolutions for the sanction of the house: _resolved_, that the committee on the public lands be instructed to inquire into the expediency of authorizing, in favor of the claimants, the re-examination of the grants of land made by the board of commissioners for ascertaining and adjusting the titles and claims to land in the district of louisiana, under the second section of the act, entitled "an act for ascertaining and adjusting the titles and claims to land within the territory of orleans and the district of louisiana," passed the d of march, ; and also the grants made by the recorder of land titles for the territory of missouri, under that part of the third section of the act, entitled "an act further providing for settling the claims to land in the territory of missouri," passed the th of june, , which provides for settlement of donation rights in all cases where the quantity of land granted is less than six hundred and forty acres; and that said committee have leave to report by bill, or otherwise. _resolved_, that the committee on the public lands be instructed to inquire into the expediency of authorizing the recorder of land titles for the territory of missouri to receive testimony in all the claims to land in which none has been adduced, and which are rejected in the report made by the late board of commissioners for ascertaining and adjusting the titles and claims to land in the then district of louisiana, now territory of missouri; and, afterwards, to arrange into classes, according to their respective merits, as well the claims embraced by this resolution, as the other rejected claims mentioned in said report, and made abstracts containing the substance of the evidence in support of such claims, and such other information and remarks as may be necessary to a proper decision thereon, and report on said claims to the general commissioner of the land office; and that said committee have leave to report by bill, or otherwise. _resolved_, that said committee be instructed to inquire into the expediency of granting the right of pre-emption to actual settlers on the public lands in the said territory of missouri; and that said committee have leave to report by bill, or otherwise. the resolutions were then agreed to. monday, january . two other members, to wit: from massachusetts, peleg taliman; and from pennsylvania, william piper, appeared, and took their seats. _encouragement to privateer captures._ the house resolved itself into a committee of the whole on the bill "relating to captures." [the bill provides that compensation shall be allowed to the officers and crews of our public vessels, for vessels of the enemy necessarily destroyed at sea after their capture.] mr. bassett stated to the house the considerations by which the naval committee had been induced to report this bill. it grew more immediately out of the case of the guerriere destroyed by the constitution--a case precisely in point. such a principle as that which the bill proposed, he believed, had been engrafted in the british service. it was at least required by equity and sound policy, where the public service required the destruction of a vessel for fear of recapture by the enemy in its disabled state, that some compensation should be made to the captors in lieu of that which would have accrued from the sale of the vessel had it been brought into port. mr. h. clay (speaker) spoke in opposition both to the principles and details of the bill. he was disposed to believe the principle unprecedented in any other country; but even if it were not, he thought it ought not to exist in this country. it would have the effect to make it the interest of the captor, unless the vessel should be immediately on the coast, or in the very mouth of our rivers, to destroy the captured vessel. on consulting the underwriters, gentlemen would find the premium required on bringing in a vessel of any description from any considerable distance, would be equal to one-half her value; and, as proof of it, mr. c. instanced the high insurance even from charleston and new orleans, along our own coast, to a northern port. the strongest possible temptation would, therefore, be offered by giving half the value of the destroyed vessel to the captors in case of her destruction. mr. c. moved to strike out the first section of the bill. mr. bassett replied to mr. clay, and defended the bill, on the ground of expediency and of precedent. in the british nation, he said, rewards were always liberally bestowed on skill and valor, and they must always be by every country that wishes to encourage these qualities in its citizens. the principle did exist in the british service, not by statutory, but by admiralty regulations; and in all such cases rewards had been liberally dispensed. mr. bacon opposed the bill as inexpedient and unprecedented. to show that it went beyond the british legal provisions in that respect, he quoted a statute of that nation which allows to the captors of vessels so destroyed, as the bill contemplates, a bounty of five pounds for every man found alive on board said captured vessels, the aggregate to be equally distributed among the crew of the captors. further, he believed, that government had not gone. mr. cheves on this remarked, that every encouragement was afforded to british naval officers, by their government, as well by promotions to higher office and to nobility, &c., which were not known in this country, as by pecuniary rewards and pensions, not in all cases by statutory, but by executive sanctions. he was disposed to be liberal to our officers, to foster our rising navy. but, though friendly to the principle, he objected to the particular details of the bill, which he thought susceptible of modifications which would be better made in select committee than in the house. he, therefore, moved that the committee rise. mr. quincy objected to the principle of the bill, which he thought fundamentally questionable. he was for providing specially by statute for each case after its occurrence, where the circumstances of the case required an exercise of liberality by congress, and to legislate generally for future occurrences. the committee then rose, reported progress, and were refused leave to sit again; and, on motion of mr. cheves, the bill was recommitted to the naval committee. tuesday, january . _privateer pensions._ the house then resolved itself into a committee of the whole, on the bill regulating pensions to persons on board private armed ships. [this bill directs that the two per cent. reserved in the hands of consuls and collectors, in pursuance of an act of june last, respecting private armed vessels, &c., be paid into the treasury, to constitute a fund for pensions to persons disabled on board private armed vessels, of the mode and degree of which disability the log book of each vessel is to be evidence.] mr. burwell moved to strike out the vital section of the bill, with a view to try the principle. in support of the motion, he remarked that he conceived it improper to adopt a principle so extremely liable to abuse as this, especially when pensions had been refused to at least equally meritorious sufferers during the revolution. the evidence which the log book of a vessel would afford, would be so very liable to error, and so indefinite, as not to be entitled to that conclusive weight given to it by the bill. the proper course, he conceived, would be, to leave the subject open to the annual disposition of congress; which was now the case with certain other pensions. mr. bassett stated, in reply, that, at the last session, two per cent. having been reserved from the wages of the seamen on board private armed vessels, for the avowed and declared purpose of constituting a fund for pensions to the wounded, this bill now merely indicated the mode of carrying this provision into effect. the money had been reserved by the collectors and consuls, and as it was never the intention of congress to make them a present of it, it remained for congress to direct the mode of its distribution. if the principle was incorrect, it ought to have been objected to when the pledge was given by the house last session on the subject. the question on striking out the section was negatived by a very small majority; and the committee rose and reported the bill. mr. stow made a motion going to confine the pensions allowed by the bill to such as should be disabled in actual service, and spoke in support of his motion. mr. mckim opposed the motion. the services rendered by the privateers were valuable to the country and ought to be encouraged. the duties on prize goods, he said, brought into the port of baltimore alone, had amounted to three hundred and fifty-four thousand dollars. this showed the importance of this system in a pecuniary point of view. mr. stow questioned the benefit rendered to the public interest by privateering, and said he was in favor of letting this fund accumulate, and first see whether there was sufficient to pension those having received known wounds in action, before they agreed to extend it to all casualties on board private armed vessels. mr. little asserted the utility of privateers and their efficiency as a means of annoying the enemy, he bore testimony to the bravery they had displayed in all conflicts with the enemy, and to the injuries they had inflicted on his commerce. the enterprising individuals concerned in it ought to be encouraged; for, by the impediments to the prosecution of their enterprise, many had been already discouraged and had dismantled their vessels. if properly encouraged, they would scour every sea, however distant, and ransack every port and harbor in search of the enemy. he was in favor of exhibiting the most liberal disposition towards them. considerable further debate took place on the amendment, which was at last agreed to by a very small majority. mr. rhea subsequently moved to recommit the bill to the same committee which reported it, for the purpose of amendment; and the bill was recommitted. wednesday, january . _astronomical observatory._ mr. mitchill, from the committee to whom was referred the memorial of william lambert, and the report made thereon by the secretary of state at the last session, presented a bill authorizing the establishment of an astronomical observatory; which was read twice, and committed to a committee of the whole on friday next. the report is as follows: on the th december, , mr. lambert addressed the house of representatives upon the expediency of establishing a first meridian for the united states at their permanent seat of government. this was ordered for consideration to a select number of gentlemen, who, on the th march, eighteen hundred and ten, laid upon the table an able and learned opinion, accompanied with scientific calculations illustrative of the object. they concluded their investigation by recommending that provision should be made, by law, for determining, with the greatest accuracy, the distance between the city of washington and greenwich in england, and that the proper instruments should be procured. afterwards, on the d january, , the memorial was referred to a select committee; and, on the d of the ensuing february, that committee was discharged, and the memorial referred to the secretary of state for his consideration. conformably to the desire of the house, that officer wrote to the speaker a letter which, after having been read, on the third day of july, , was ordered to lie on the table. that letter was, on the th december last, ordered to the present committee, who have diligently weighed the matters which it contains. it is their opinion that astronomical observations are highly useful to a navigating and commercial people, already eminent for their progress in science and the arts, and who are laboring for the completion of their national dignity and splendor. the most ready method of obtaining the information to be derived from noting the phenomena of the heavens, is by the establishment of an observatory. this may be erected at the city of washington. by such an institution, means may be adopted not only to fix the first meridian, but to ascertain a great number of other astronomical facts and occurrences through the vigilance of a complete astronomer. thursday, january . the house met with closed doors; and, after being opened, another member, to wit, from new york, peter b. porter, appeared, and took his seat. friday, january . _encouragement to privateers._ the house again resolved itself into a committee of the whole on the report of the committee of ways and means on the petitions of joshua barney and stephen kingston. the resolution, reported by the committee of ways and means, "that it is inexpedient to legislate upon the subject of the petitions," was disagreed to; and the following was reported to the house as a substitute thereto: "_resolved_, that any right or claim of the united states to british property which may have been captured by american privateers, arising from forfeiture under any provision of the non-importation acts, ought to be relinquished for the benefit of the captors." the question on the original resolution was also disagreed to by a vote of the house. for disagreeing , against it . and the resolution proposed in committee of the whole as a substitute, was, as stated above, agreed to; and was referred to the committee of ways and means to bring in a bill in pursuance thereof. _impressed seamen._ the following message was received from the president of the united states: _to the senate and house of representatives of the united states_: i transmit, for the information of congress, copies of a correspondence between john mitchell, agent for american prisoners of war at halifax, and the british admiral commanding at that station. i transmit for the like purposes copies of a letter from commodore rodgers to the secretary of the navy. january , . james madison. _extract of a letter from john mitchell, esq., agent for american prisoners of war at halifax, to the secretary of state, dated_ "december , . "i cover you a copy of a correspondence, which took place in consequence of different applications i received, either by letter or personally, from persons detained on board his britannic majesty's ships of war in this place. "i formerly mentioned to you that the admiral had assured me that he would discharge all the citizens of the united states who were in the fleet, and actually did discharge several. this induced me to think i should be correct, and in the perfect line of my duty, in sending him a list of the applicants to me, and requesting an inquiry to be made, and discharges granted to all who were citizens of the united states; i, therefore, covered him a list of the names now enclosed to you, which produced his letter to me of the same date, (december , .) "i read it with surprise, because some of the men had informed me their captains had refused to report them to the admiral. now, if no one here was, or is, allowed to do it, their situation is hopeless. "it is not my place, sir, to reason with you on this business. _proof of nativity_, in his first letter, is a strong expression; and how few are in possession of it, and how many who cannot obtain it. "the second paragraph, in the second letter, prevents my interfering; and i have since been obliged to send a man away, requesting him to apply to his commanding officer." _copy of a letter from john mitchell, esq., agent for american prisoners of war at halifax, to sir john borlase warren, dated_ december , . sir: since the sailing of the last cartels, in which you were pleased to send home several americans, who had been in his britannic majesty's service, others who are now on board of the centurion and statira have requested of me to procure their discharge, and to be sent home. will you, sir, have the goodness to direct an inquiry, and order the release of such as are citizens of the united states? besides the enclosed list, i am told there are others whose names i have not. i have the honor to be, &c., john mitchell, _agent_. _copy of a letter from admiral sir john borlase warren, to john mitchell, esq., agent for american prisoners of war at halifax, dated_ december , . sir: i have the honor to acknowledge the receipt of your letter of this date, respecting some men, therein mentioned, on board his majesty's ships under my command, said to be citizens of the united states, and in reply, beg to acquaint you, that whenever i have received representations from the captains of his majesty's ships of any part of their crews being citizens of america, with sufficient proof of their nativity, i have directed their discharge from the service. i must observe to you that i cannot permit the interference of any applications from men belonging to his majesty's ships, but through their commanding officers: and in your department, of prisoners of war only, i shall at all times be most happy to receive your communications. i have the honor to be, &c., john b. warren. _copy of a letter from john mitchell, esq., agent for american prisoners of war at halifax, to admiral sir john borlase warren, dated_ december , . sir: i had yesterday the honor to receive your letter, dated the st instant, in which you observe that you cannot permit the interference of any application from men on board of his britannic majesty's ships of war, but through their commanding officers. desirous of conforming as far as possible to established regulations, permit me the honor to inquire of your excellency, if by your letter i am to understand that i am not to receive the applications of seamen declaring themselves citizens of the united states, who are on board of his majesty's ships of war, and communicate the same to you? if this is the meaning, i shall most certainly conform, though i must lament the regulation. i have the honor to be, &c., j. mitchell, _agent, &c._ _copy of a letter from admiral sir john borlase warren, to john mitchell, esq., agent for american prisoners of war at halifax, dated_ december , . sir: in reply to your letter, dated yesterday, i have to acquaint you that whenever any address is made relative to men on board his majesty's ships, it must be by the commanders of such vessels direct. i cannot permit any application by other persons in time of war, but in the above mode. it will always afford me pleasure to attend to your wishes in any respect relative to the situation or exchange of prisoners, or to afford any aid or relief in my power. i have the honor to be, &c., john b. warren. _from commodore rodgers to the secretary of the navy._ u. s. frigate president, boston, _jan. , _. sir: herewith you will receive two muster books, of his britannic majesty's vessels moselle and sappho, found on board the british packet swallow. as the british have always denied that they detained on board their ships of war american citizens, knowing them to be such, i send you the enclosed, as a public document of their own, to prove how illy such an assertion accords with their practice. it will appear by these two muster books that so late as august last, about an eighth part of the moselle and sappho's crews were americans; consequently, if there is only a quarter part of that proportion on board their other vessels, that they have an infinitely greater number of americans in their service than any american has yet had an idea of. any further comment of mine on this subject, i consider unnecessary; as the enclosed documents speak but too plainly for themselves. i have the honor to be, &c., john rodgers. hon. paul hamilton, _secretary of the navy_. the message and documents were read, and referred to the committee of foreign relations. tuesday, january . _treasury notes._ on motion of mr. cheves, the house resolved itself into a committee of the whole on the bill reported by the committee of ways and means authorizing the issuing of treasury notes for the service of the year . [the bill authorizes the president of the united states to cause to be issued treasury notes to the amount of five millions of dollars, and also, if he shall deem it expedient, to issue a further amount, not exceeding five millions of dollars, provided the amount issued under the latter provision shall be deemed and held to be in part of the loan of sixteen millions of dollars authorized by the bill passed this day. the notes to bear interest at the rate of five and two-fifths per cent. per annum, to be redeemed one year after the day on which they are respectively issued.] the bill having been read through by sections, and no objection having been made thereto, the committee rose and reported it. the bill was ordered to be engrossed for a third reading without division; and then the house adjourned. friday, january . a new member, to wit, from new york, thomas p. grosvenor, elected to supply the vacancy occasioned by the resignation of robert le roy livingston, appeared, produced his credentials, was qualified, and took his seat. _grant to daniel boone._ mr. hempstead, from the committee to whom were referred the petition of daniel boone, and the resolutions of the legislature of kentucky in his behalf, made a report; which was read twice, and committed to a committee of the whole on monday next. _territory of missouri._ mr. mckee, from the select committee which was directed to inquire into the propriety of amending the act for the government of the missouri territory, reported against any amendment. the report is as follows: that they have had the subject to them referred under their consideration, and have examined the act above recited. the principal difficulty suggested to the committee, occurring in the execution of the law, appears to relate to the election of a delegate to represent the interest of the territory in the congress of the united states. by the first clause of the th section of the act it is provided "that the house of representatives shall be composed of members elected every second year, by the people of the said territory, to serve for two years." by the th section of the said act it is also provided "that the citizens of the said territory entitled to vote for representatives to the general assembly thereof, shall, at the time of electing their representatives to the said general assembly, also elect one delegate from the said territory to the congress of the united states." it also appears that an election was held in pursuance of the act on the second monday of november last, when a delegate was elected. it appears that doubts have been entertained whether the delegate thus elected can legally hold his seat after the d day of march next, and an alteration of the law has been suggested as necessary to obviate the difficulty. it seems to the committee that the first clause of the th section, and the th section of the act, taken together, leaves no room for doubt, but evidently fixes the period for which the delegate may hold his seat at two years from the second monday of november last; and it follows, as a necessary consequence, that the delegate elected in pursuance of the law, and for the term of two years, cannot be deprived of his right to a seat by any subsequent law. it also appears to the committee that the territorial legislature are furnished, by the th section of the act, with competent power to change the time of holding elections so as to obviate any difficulty that may occur in the subsequent elections of a delegate. the committee, therefore, recommend the following resolution: _resolved_, that the act entitled "an act providing for the government of the territory of missouri," requires no amendment. _by benjamin howard, governor of the territory of louisiana, commander-in-chief of the militia thereof, and superintendent of indian affairs, in and over the same_: a proclamation. in discharge of those duties enjoined on the governor of this territory by an act of the congress of the united states of america, approved the th of june, , entitled "an act providing for the government of the territory of missouri," i have made the following arrangements, preparatory to the new organization of government to be instituted by the said act, and which will commence its operation on the first monday in december next; that is to say; i have divided the future territory of missouri into five counties, excluding from the civil jurisdiction of each of said counties any tract or tracts of country which may fall within their respective general limits, as hereinafter set forth, the indian title to which may not have been extinguished. that portion of territory situated north of the missouri river, and usually known by the name of the forks, as lying between that river and the river mississippi, shall compose one county, and be called the county of st. charles. that portion of territory bounded by the missouri river on the north; by the mississippi on the east; on the south by the platin creek, from its mouth to its source; thence by a west line to the missouri river, or to the western boundary of the osage purchase; and on the west, by the said western boundary of the osage purchase, shall compose one other county, and be called the county of st. louis. that portion of territory bounded by the county of st. louis on the north; on the east by the mississippi; on the south by apple creek, from its mouth to its source; thence by a due west line to the western boundary of the osage purchase; and on the west, by the said western boundary of the osage purchase, shall compose one other county, and be called the county of st. genevieve. that portion of territory bounded on the north by the south limit of the county of st. genevieve; east by the mississippi; west by the western boundary of the osage purchase; and south by that line which formerly separated the commanders of cape girardeau and new madrid, and known more recently as the boundary between these two districts, shall compose one other county, and be called the county of cape girardeau. that portion of territory bounded north by the south limit of the county of cape girardeau; east by the mississippi; south by the d degree of north latitude, (the southern boundary of this territory as settled by act of congress;) west by the western boundary of the osage purchase; and from the southern extremity thereof to the d degree of north latitude aforesaid, shall compose one other county, and be called the county of new madrid. and i do hereby make known and declare that elections of representatives, to serve in the general assembly of the future territory of missouri, shall be holden throughout the territory, on the second monday of november next, at the respective seats of justice of the present districts, which are hereby declared to be the seats of justice for the several future counties respectively except that the town of new madrid shall be the seat of justice of the future county of new madrid, which said future county will comprehend the present districts of new madrid and arkansas; to wit: at the town of st. charles for the future county of st. charles, at which time and place there will be chosen for the said county two representatives. at the town of st. louis for the future county of st. louis, at which time and place there will be chosen four representatives. at the town of st. genevieve for the future county of st. genevieve, at which time and place there will be chosen for the said county three representatives. at the town of cape girardeau for the future county of cape girardeau, at which time and place there will be chosen for the said county two representatives. and at the town of new madrid for the future county of new madrid, at which time and place there will be chosen for the said county two representatives. and i do, moreover, make known and declare that on the said second monday of november next, an election will also be holden, at the several seats of justice aforesaid, for a territorial delegate to the congress of the united states. and i do enjoin and require that these elections be holden by the sheriffs of the present districts, or in their absence, or inability to act, by the coroners respectively; that the said sheriffs or coroners shall take the polls of those qualified to vote; that the clerks of the courts of the present districts, or their deputies, shall respectively write down the names of the voters in a fair and legible manner, and that the presiding judges of the courts of the present districts respectively, or in case of absence, or inability to act, the next in commission shall attend, and be judges of the qualification of the voters; that the said elections shall be opened at the respective seats of justice aforesaid, at or before o'clock in the morning of the said second monday of november, and close at sunset of that day. and the sheriffs or coroners respectively, after having caused the proces-verbal of said polls to be signed by the clerks or their deputies, who may have respectively committed the same to writing, and countersigned by the judges respectively who may have attended the elections, will themselves certify the same, explicitly stating, at large, the names of the persons elected as representatives, and the name of the person having the greatest number of votes as a delegate to congress, and make immediate return thereof to the governor of the territory. and i do, lastly, enjoin and require, that the representatives of the several future counties, so as aforesaid to be elected, do convene in the town of st. louis on the first monday in december next, as provided by the act of congress aforesaid. in testimony whereof, i have caused the seal of the territory of louisiana to be hereunto affixed. given under my hand, at the town of st. louis, the first day of october, in the year of our lord one thousand eight hundred and twelve, and of the independence of the united states of america the thirty-seventh. benjamin a. howard. for the information of the people who are called on to decide the right of suffrage by the governor's proclamation, we have inserted below that part of the law which defines the qualification as well of the representative as of the voter. "no person shall be eligible or qualified to be a representative, who shall not have attained to the age of twenty-one years, and who shall not have resided in the territory one year next preceding the day of election, and who shall not be a freeholder within the county in which he may be elected; and no person holding an office under the united states, or an office of profit under the territory, shall be a representative. in case of vacancy, by death, resignation, or removal or otherwise of a representative, the governor shall issue a writ to the county wherever a vacancy may be as aforesaid, to elect another person to serve the residue of the term. that all free white male citizens of the united states above the age of twenty-one years, who have resided in said territory twelve months next preceding an election, and who shall have paid a territorial or county tax, assessed at least six months previous thereto, shall be entitled to vote for representatives to the general assembly of said territory." the report was ordered to lie on the table. _arming and classing the militia._ the house resumed the consideration of the bill supplementary to the act for arming the militia, and for classing the same. mr. fitch moved to strike out all that part of the bill which provides for the classing the militia of the united states. mr. ely said that he was totally opposed to the classification of the militia; that it had been pressed upon us from year to year, by gentlemen from the southern section of the union, he knew not why; that he thought the effects of the measure in rendering the militia efficient, for constitutional purposes, were very trifling and unimportant. from some cause or other, the militia in the southern states are very little improved, and gentlemen seemed to imagine that classification was to supply the place of arms, of organization, of discipline, of every thing. this would not prove to be the case. he said that the laws heretofore made had proved in the northern states, particularly in massachusetts, abundantly sufficient to answer all the purposes of forming an efficient militia; but they have been followed up by state regulations which had been enjoined by penalties sufficiently severe. these, he had understood, had been in a great measure neglected in the south, and this was the reason that the militia were so imperfect; and if the states would not enforce those laws, he had no idea they would enforce this. the sums expended on the militia in massachusetts, both from the public treasury and by private individuals, is very great--that state has furnished more than sixty artillery companies, with their pieces, ammunition carriages, and every thing appurtenant to them, complete; the artillery and cavalry are completely uniformed and equipped, and are required so to be by law; for the greater part, the infantry are in uniform complete, are well armed, and are equal in all respects to any militia in the world. that this classification would add to their burdens, and they had already burdens enough; that it would be an insidious thing, and so considered by the militia, and go to destroy the harmony of the militia corps. that if gentlemen in the south thought it would be useful, let their state governments, who were the best judges, adopt as much of it as they pleased. no one would object to that, if they did not interfere with existing regulations. all will acknowledge that the state governments have it in their power, and it has been, in some form or other, exercised by some of the states, and particularly by pennsylvania--this measure will interfere with their favorite mode. he said he was disposed to have the militia in the south improved, but he prayed gentlemen not to adopt a measure calculated to injure one part of the militia, more than it would benefit the other; he hoped the provisions for classing the militia would be stricken out of the bill. mr. williams and mr. stow opposed the motion. the question was decided by yeas and nays: for striking out , against it . the bill was then ordered to be engrossed for a third reading. saturday, january . a new member, to wit, from north carolina, william kennedy, elected to supply the vacancy occasioned by the death of gen. thomas blount, appeared, was qualified, and took his seat. _constitution and guerriere._ the engrossed bill providing compensation to captain hull, and the officers and crew of the frigate constitution, for the capture and destruction of the british frigate guerriere, was read a third time. [the bill authorizes a grant of $ , .] mr. mckee opposed the passage of the bill, on the ground that the president has no authority to expend the public money in gratuitous grants to individuals. mr. sawyer stated, that he wished to make some remarks in reply to mr. mckee, but, from the lateness of the hour, and an indisposition with which he was oppressed, it was not now in his power. he therefore moved an adjournment, which was carried--ayes . monday, february . mr. seaver presented a petition of benjamin waterhouse, medical doctor, of boston, stating that he is willing, and wishes to undertake the inoculation of the army of the united states with the "kine-pock inoculation," and praying the aid and patronage of congress in that undertaking.--referred to the committee on military affairs. _constitution and guerriere._ the house resumed the order of the day on the bill making compensation to the officers and crew of the constitution for the destruction of the frigate guerriere. the bill being on its third reading-- mr. sawyer spoke in support of the bill, and in reply to mr. mckee. mr. dawson.--mr. speaker: the bill which is now on your table, and which i hope will soon receive your signature, was drawn from a resolution, or rather the part of a resolution which i had the honor to offer you at the very commencement of the session. when i offered you that resolution, i did hope, and i did believe, that it would have received the immediate attention and unanimous approbation of this house; that regardless of those punctilios which too often shackle the best intentions, and do injury to the best causes, and in compliance with the sentiments and feelings of the nation, we should have immediately expressed our own, thereby giving force to that expression, and have rendered that tribute which is justly due to undaunted valor, and to modest merit; that we should have declared our admiration, and the high sense we entertain of the gallant conduct of the defenders of their country's flag, and the defenders of her rights, and while we gave to some testimonials of our approbation, we should have yielded to all that which is justly due. in this expectation i have been wofully disappointed; doubts, difficulties, and delays have taken place; commitment has succeeded commitment, and so many amendments, or rather alterations, have been made to the original resolution, that i can scarcely call it my own; it has received the fostering care of so many stepfathers that i am almost constrained to disown it as illegitimate; but as it is natural to protect that which we call "our own," although all the features do not please us, so i shall vote for that bill although all its provisions do not please me. some gentlemen, with a liberality which i neither envy, nor shall i imitate, are willing to load those brave tars with all the praise, with all the applause, which the pride of language can bestow, or which a resolution written on paper gilded with gold can confer; and, becoming their own judges, they think _that_ ample compensation for all the hardships they have suffered, for all the dangers they have encountered, for all the wounds they have received. with all the respect which i feel for these honorable gentlemen, and the high value which i set on their good opinion, i do not think it ample compensation to the brave and indigent tars who have boldly fought your battles, and generously sacrificed their interest for your good; they merit some more substantial stuff than air; they have acquired for you, sir, they have given to your enemy, something more substantial. others there are, who are well pleased to bestow on the brave officers who have distinguished themselves, some testimonials of our approbation--some insignia of their merit. with these gentlemen i most perfectly agree, and most cordially voted in favor of the bill for that purpose. but, while i remember the gallant captain who proudly steps the quarterdeck, i will not forget the sailor boy, "who whistles o'er the lee," or the aged mariner who fathoms the deep, and on whom, when the battle rages, danger has no more effect than the foaming surge which surrounds him has on the hard rock, when it dashes and breaks against its side; they all, sir, are entitled to your applause and gratitude; they all demand your justice; and to render that justice is the object of the bill now on your table, as i will presently show, and which had it passed at an earlier period of the session, as i did expect it would, your "constellation" would not have lain for weeks within your view for the want of men, and is still, i believe, in your waters, but would long since have been at sea, and would have added new trophies to those already won. the secretary of the navy, i mean the late secretary, in whose veracity and integrity i have the highest confidence, who carries to his retirement the best wishes of my heart, and under whose auspices this gallant exploit was achieved, and commodore hull, whose disinterestedness seems only equalled by his valor, have informed us that "the guerriere" when she went into action was worth two hundred thousand dollars, and that she had articles on board to the value of one hundred thousand dollars. she was one of the finest frigates in the british navy, well manned, and commanded by one of their most experienced and gallant captains! this ship, our frigate, "the constitution," of equal force, attacked, vanquished, and captured, after a short, though one of the most brilliant actions recorded in the naval history of any country; thereby giving certain presages of future glory, and a character to our rising navy, coeval almost with its existence, and setting an example which other officers and crews, equally emulous of fame, have since imitated, and have obtained the same laurels, which will never fade. agreeably to the act for the better government of the navy of the united states, the ship, with all articles on board her, became their prize; they might have used it to their best advantage; they might have brought her into port, and divided the whole among themselves; but apprehensive that from the crippled state of the prize she might again fall into the hands of your enemy; nay, sir, that your own frigate might be endangered in protecting and convoying her, they with that liberality, with that magnanimity which marks the character of the sailor, determined to destroy her, thereby sacrificing their interest for your good. and here, mr. speaker, let me ask what other class of men in our society can you find who would have acted thus nobly? i fear, sir, we shall search for them in vain. i am sure, sir, that we shall not find them among those who daily violate your laws, relieve your enemy of his surplus manufactures, or supply him with your provisions, and then come here and receive indemnification, remission for the crimes which they have committed. and, sir, what is the mighty boon which these brave and indigent tars ask from you? or rather was it that i, in the name of justice, demanded for them?--it is one-sixth part in value of that property--of their property, which they have sacrificed for your good, rather than it should fall into the hands of your enemy. and will you refuse it? no, you will not, you cannot, you dare not. you will not, because every consideration of policy, and the best interest of our country, forbid it; you cannot, because every feeling which ennobles the human heart, and i think i know yours, forbids it; you dare not, because justice forbids it; and you dare not do an act so flagitious. mr. speaker, during the very lengthy discussions which have taken place in this session, i have remained silent in my seat; this has not arisen from a supineness of disposition, or from an inattention to the public business, or the public welfare, but in the hope, that when gentlemen had exhausted all their eloquence, they would have permitted us to progress, and to place our country in the situation demanded by the crisis; and i should have indulged that disposition which i have to be silent, had not an attempt been made to deprive the brave and needy tars of that which is justly due to them; but under these circumstances i could not restrain my feelings, and have to regret that i cannot give to them that utterance which the occasion calls for. [the argument against this bill was, that it would be setting a precedent which would be considered authoritative in future cases; that it was giving a donation for an act of duty only, though gallantly performed. it was rewarding a service, which, had it been rendered on land, would have received no remuneration, as experience had proved in the case of the tippecanoe expedition; and that it was contrary to justice to confer pecuniary rewards on one class of our citizens in exclusion of others. in favor of the bill it was stated that the captured vessel, if she had been brought into port, would have produced six times the amount now proposed to be allowed to her; and that the captors ought not to incur a total loss from the destruction of the vessel, which the fear of her falling into the hands of the enemy had rendered necessary to the public service. it was urged, that if any _city_ in the united states had to legislate on this subject, five times as much would have been awarded as is now proposed. all the gentlemen who spoke, offered the tribute of their respect to the gallantry and conduct of the officers and seamen of our public vessels.] the question on the passage of the bill was decided in the negative--yeas , nays . wednesday, february . _virginia military bounty lands._ the house then proceeded to consider the report of the committee of the whole on the report of the select committee touching the claims of the officers and soldiers of the virginia line of the revolutionary army to military bounty lands. the question was then taken to concur with the committee of the whole house in their disagreement to the resolution recommended by the select committee, which is as follows: _resolved_, that provision should be made for securing to the officers and soldiers of the revolutionary army of virginia, on state establishment, in the land or sea service of the said state, the bounty lands which were promised to them, either by a law or resolution of the said commonwealth, out of the lands not otherwise appropriated, and lying on the northwest side of the river ohio, within the virginia cession, to be of good quality, according to the true intent and meaning of the promises made on the part of virginia, and that, if a sufficiency of good land within the meaning of the aforesaid engagement cannot there be found, that their bounties shall be satisfied out of any other public land of the united states, not heretofore otherwise appropriated: and was determined in the affirmative--yeas , nays . friday, february . _encouragement to public and to private armed privateers._ on motion of mr. mckim, _resolved_, that the committee on naval affairs be instructed to inquire into the expediency of relinquishing, in favor of the officers and crews of the public armed ships of the united states, a greater portion of the value of prizes than they are now by law entitled to; and, also, to inquire into the expediency of providing further encouragement to equipping and employing private armed vessels of war against the ships and commerce of the enemy; and that the committee have leave to report by bill, or otherwise. wednesday, february . a message was received from the senate informing the house that, owing to the indisposition of mr. gaillard, the senate have appointed mr. franklin the teller, on their part, at the counting of the votes of the electors for president and vice president of the united states. _counting of electoral votes._ the hour of having arrived, the senate entered the hall of representatives, preceded by their president, secretary, sergeant-at-arms, and doorkeeper, and proceeded to seats prepared for them--the members of the house having risen to receive them, and remaining standing until all had entered. the president of the senate took a seat which had been prepared for him at the speaker's right hand, and the secretary of the senate was placed beside the clerk of the house. the tellers--mr. franklin of the senate, and messrs. macon and tallmadge of the house--were seated at a table in front of the speaker's chair. the president of the senate then proceeded to open and hand to the tellers the sealed returns from each state, which were severally read aloud by one of the tellers, and noted down and announced by the secretaries of each house. the votes having all been opened and read, the following result was announced from the chair, by the president of the senate, viz: +----------------+-------------------------+-------------------------+ | | president. | vice president. | | +------------+------------+------------+------------+ | states. | james | de witt | elbridge | jared | | | madison. | clinton. | gerry. | ingersoll. | +----------------+------------+------------+------------+------------+ | new hampshire | - | | | | | massachusetts | - | | | | | rhode island | - | | - | | | connecticut | - | | - | | | vermont | | - | | - | | new york | - | | - | | | new jersey | - | | - | | | pennsylvania | | - | | - | | delaware | - | | - | | | maryland | | | | | | virginia | | - | | - | | north carolina | | - | | - | | south carolina | | - | | - | | georgia | | - | | - | | kentucky | | - | | - | | tennessee | | - | | - | | ohio | | - | | - | | louisiana | | - | | - | | +------------+------------+------------+------------+ | total | | | | | +----------------+------------+------------+------------+------------+ recapitulation of electoral votes. _for president of the united states._ james madison, of virginia, de witt clinton, of new york, --- _for vice president of the united states._ elbridge gerry, of massachusetts, jared ingersoll, of pennsylvania, --- the president of the senate, in pursuance of the joint resolutions of the two houses, then announced the state of the votes to both houses of congress, and declared "that james madison, of the state of virginia, was duly elected president of the united states, for four years, to commence on the fourth day of march next; and that elbridge gerry was duly elected vice president of the united states, for the like term of four years, to commence on the said fourth day of march next." the two houses then separated, and the senate returned to their chamber. thursday, february . a message from the senate informed the house that the senate have appointed a committee, on their part, to join such committee as this house may appoint on their part, to wait upon the president of the united states, and to inform him of his re-election, for four years, to commence on the fourth day of march next. _regulation of seamen._ the house resumed the consideration of the bill excluding foreign seamen from the service of the united states. mr. pitkin's motion to strike out the first section of the bill, for the purpose of inserting a proposed amendment, being still under consideration, considerable discussion took place on it, but it was eventually withdrawn to give way to the following motion. mr. ridgely moved to strike out of the first section all the words in brackets, as follows: sec. . _be it enacted, &c._, that from and after the termination, by a treaty of peace, of the war in which the united states are now engaged with great britain, it shall not be lawful to employ as seamen, or otherwise, on board of any public vessel of the united states, or of any vessel owned by citizens of the united states, or sailing under their flag, any person or persons, except natural born citizens of the united states, or citizens of the united states at the time of such treaty being made and concluded, [or persons who, being resident within the united states at the time of such treaty, and having previously declared, agreeably to existing laws, their intention to become citizens of the united states, shall be admitted as such within five years thereafter in the manner prescribed by law.] after some conversation, the motion was negatived by yeas and nays--for it , against it . saturday, february . _encouragement for privateering--bounty for prisoners._ mr. bassett, from the committee on the naval establishment, made a report relative to the expediency of affording greater encouragement to privateering. the report is as follows:-- that, in relation to the first inquiry, they find that, by the british statutes of the th and th of george the second, the whole prize of each and every public armed vessel is given to the officers and crews making the capture; and they find this principle published by british proclamation, in relation to the present war with the united states. the laws of the united states, vol. , page , direct that, if a capture be made by an american public armed vessel, of equal or superior force, the capturing vessel shall have the whole; in all other cases of capture, one-half is distributed to the officers, and the other half is paid to the commissioners of the navy pension fund, pledged, first, for the payment of pensions, and the surplus to be disbursed for the comfort and benefit of seamen. this fund for navy pensions amounts to something more than two hundred thousand dollars, yielding an annual interest of fifteen thousand dollars; and the amount of pensions is from seven to eight thousand dollars; leaving a yearly balance of seventeen thousand dollars in favor of the fund, and this without the addition of the prizes made this war, which are known to exceed one hundred thousand dollars, and will probably amount to two hundred thousand dollars, so as to double the fund; while only four persons have been added to the list by the war, to receive twenty-one dollars. from the above it appears, that, from the old pension list, the amount of pensions is little more than three per centum on the amount of prizes. were five per cent. from the future prizes, to be added to this fund, on past experience it would promise an adequate sum for the payment of pensions. your committee, however, concluded that it would not do to rely conclusively on past experience, and, on the ground of certainty, deemed it best for the fund to remain as established for another year, when more experience would give more confidence to the decision. as this report is intended to bring the subject under the view of the house, with the hope that it will not be lost sight of at the next session, it will be proper here to add, that, with some of the committee, the idea was entertained that ten per cent. should be withheld from distribution, viz.: five per cent. for the pension, and five for the navy hospital fund; in which not only the imbecility of decrepitude, but the imbecility of infancy should always find an asylum. on the other branch of the inquiry, your committee give their fullest attestation to the utility and importance of privateers. if, at other times and in other countries, the effect of individual exertion has been distrusted, the unexampled gallantry of our citizens, in that way, since the declaration of war, assures us that, with americans, even the individual arm can make an efficient impression on the foe. the mode, however, of giving encouragement, they found not free from difficulty. as least liable to objection, they recommend that a bounty be paid for every prisoner brought in; and, that this proposition may be regularly before the house, they report a bill. mr. bassett, from the naval committee, then reported a bill allowing a bounty to privateers. [allowing a bounty of ---- dollars for each person they bring in.] twice read and committed. _additional general officers._ on motion of mr. williams, the house resolved itself into a committee of the whole on the bill authorizing the appointment of additional general officers in the army of the united states. [the bill provides for the appointment of ---- additional major generals, and ---- brigadier generals.] the following letters from the secretary of war were read: adjutant general's office, washington, _december , _. sir: before i reply to your question, "how many major generals and brigadiers are necessary for an army of thirty-five thousand men?" it may not be amiss to state what is believed to have been the proportion of officers of these grades in the revolutionary army, and what is understood to be the proportion, at this time, in european armies. in the first army of the revolution, raised in , we had a commander-in-chief, four major generals, and eight brigadiers. in , five brigadiers were promoted to the rank of major generals, and twenty-three brigadiers appointed. in , six brigadiers were promoted to the rank of major generals, and three major generals and eighteen brigadiers appointed. the loss of papers in the war office, by fire, in , renders it impossible to say, with precision, at what particular periods many of these general officers left the service; but it is within my recollection that, on the th of june, , fourteen major generals, and sixteen brigadiers, were actually in service of the united states. yet, by referring to the official letters of general washington, in and , it will be seen that a further increase of general officers was often and warmly recommended. the main army, under the immediate command of general washington, it is believed, never amounted to thirty-five thousand men, and it is by no means certain that this number was ever in service at one and the same time, in the whole of what was designated "the continental army." yet, at no period, between the first of may, , and the close of the war, had we less than thirty general officers in service. it was deemed necessary, in the revolution, and it is understood to be the general practice in europe, at this time, to have at least one brigadier general for every two thousand men, and one major general for every four thousand. in this country we have never had a grade between the commander-in-chief and that of major general; hence it was found necessary, in the "continental army," to give to the senior major general the command of the right wing, and to the next in rank, that of the left, which, from the limited number of general officers, often left a division to a brigadier, a brigade to a colonel, and a regiment to a subordinate field officer; but, in europe, this difficulty is obviated by the appointment of general officers of higher grades. from the best information i have been able to obtain on this subject, i have no hesitation in saying that eight major generals, and sixteen brigadiers, to command the divisions and brigades of an army of thirty-five thousand men, is the lowest estimate which the uniform practice of france, russia, and england, will warrant, and that this is much below the proportion of officers of these grades actually employed in the army of the revolution. as you have not required my opinion whether it be necessary to have a higher grade than that of major general, i have not deemed it proper to touch this subject, and have confined myself to the number of major generals and brigadiers deemed necessary to command the divisions and brigades of an army of thirty-five thousand men. it may not, however, be improper to remark that, if it is intended to have no higher grade than that of major general, their number should be increased to eleven; so as to give one for the chief command, one for each wing, and one for each division of four thousand men. i am, sir, very respectfully, yours, &c. t. h. cushing, _adj't gen._ the hon. secretary of war. war department, _feb. , _. sir: in reply to the letter you did me the honor to write to me, on the th instant, by direction of the committee on military affairs, i respectfully submit the following opinions: st. that an increased number of general officers is essential to the public service. the number of regiments provided for by law, is, two of light dragoons, three of heavy artillery, one of light artillery, one of riflemen, and forty-five of infantry, making, together, fifty-two regiments. the simplest organization is ever the best. hence it is, that, as a regiment consists of two battalions, so a brigade should consist of two regiments, and a division of two brigades. this sphere of command will be found in practice, sufficiently large. the management of two thousand men in the field, will be ample duty for a brigadier, and the direction of double that number will give full occupation to a major general. to enlarge the sphere of command in either grade would not be a mean of best promoting the public good. taking these ideas as the basis of the rule, and taking for granted, also, that our ranks are filled, the present establishment would require twenty-five brigadiers and twelve major generals. but the latter admission requires qualification, and, under existing circumstances, it may be sufficient that the higher staff should consist of eight major generals, and sixteen brigadiers. the general argument, on this head, might be fortified by our own practice during the war of the revolution, and by that of european nations at all times. believing, however, that this view of the subject has been already taken by the adjutant general, in a late communication to you, i forbear to do more than suggest it. . the recruiting service would be much promoted, were the bounty in land commutable into money, at the option of the soldier, and at the end of his service. this modification would be addressed to both descriptions of men--those who would prefer money, and such as would prefer land. i need hardly remark that bounties, at the close of service, have many advantages over those given before service begins. the former tie men down to their duty; the latter furnish, if not the motive, at least the means of debauch and desertion. another, and a public reason, for the preference, may be found in the greater convenience with which money may be paid at the end, than at the commencement of a war. i have the honor to be, with great respect, &c. john armstrong. hon. d. r. williams, _chairman com. on military affairs_. the bill authorizing the appointment of additional general officers in the army of the united states, was then read a third time, and passed by yeas and nays: for the bill , against it . monday, february . _suspension of non-importation._ mr. cheves, from the committee of ways and means, made the following report:-- the committee of ways and means report: that they have deemed it to be their duty, that the public service may not suffer and that the public credit may be duly supported, to look beyond the ways and means of the present year, and to take into consideration the revenue which may be wanted for the year . that an estimate of the probable amount of the revenue which will accrue under existing laws, and be receivable within that year, has been submitted to congress in the annual report of the secretary of the treasury made during the present session. that, comparing the amount thereof with the sums which will probably be required by a prudent regard to the public credit, it appears to the committee indispensably necessary to make a further provision; that this may be done by a partial suspension of the non-importation acts, which will not greatly lessen their injurious effects upon the enemy, by an additional duty on foreign tonnage, and by the imposition of internal taxes and duties: that, in their opinion, all these means will be necessary to supply the revenue which will be wanted: that it is impracticable, during the present session, consistently with a due attention to the other business of the nation, to enact the laws necessary to embrace the last-mentioned object; but that this may be done without difficulty and without a delay which will be injurious either to the public credit or the public service, by an earlier meeting of congress than the constitutional period, which it will be the duty of congress, or the executive branch of the government, to fix at such time as shall be deemed most proper and expedient: that it is, however, necessary that the suspension of the non-importation acts which is contemplated should be enacted at the present session of congress: and for this purpose and the imposition of additional duties on foreign tonnage, they beg leave to report a bill. they also report herewith a correspondence between the secretary of the treasury and this committee on the subject of this report. _letter from the chairman of the committee of ways and means to the secretary of the treasury_: committee-room, feb. , . sir: i am directed by the committee of ways and means to request from you the favor of a reply to the following questions: . what, in your opinion, would be the probable amount of revenue applicable to the service of the year , which would result from a modification or partial repeal of the non-importation acts, such as is suggested in your letter, of the th of june, , addressed to the committee of ways and means? . is the modification suggested by that letter the best in your opinion that can be devised to obtain a given revenue, with the least possible diminution of the effects of the non-importation acts? if not, be pleased to suggest such alterations and improvements as occur to your mind. . are there, in your opinion, any further legal provisions necessary, or will any be expedient, more effectually to enforce the non-importation acts, or to insure the more effectual collection of the revenue? . would it, in your opinion, be advisable to increase the duty on foreign tonnage? if it would, to what amount? and what would be the probable addition to the revenue applicable to the year by such increase? i am, &c., langdon cheves. hon. albert gallatin, &c. _answer of the secretary._ treasury department, feb. , . sir: i have the honor to submit the following answer to the questions proposed in your letter of the d instant: . it is believed from the reasons stated in my letter of the th june last to the committee of ways and means, that the amount of revenue applicable to the service of the year , which would result from a modification of the non-importation acts suggested in the said letter, may be estimated at about five million of dollars, provided that modification takes place during the present session of congress. . no better modification, for the purposes therein intended, has suggested itself than that proposed in the letter aforesaid. but it would seem requisite, for the same object, that no drawback should be allowed on the re-exportation of the merchandise which may be thus imported. . the most important legal provision which appears necessary to enforce the non-importation acts, is a positive prohibition of a restoration by order of court of merchandise, the importation of which is prohibited by law. it is also believed that it will be necessary to order all the cargoes of salt, particularly from lisbon, to be discharged under the inspection of proper officers; and it appears reasonable that the expense should be defrayed by the importers. . it appears, in every point of view, highly desirable, that the duty on foreign tonnage should be increased. a duty of ten dollars per ton does not seem greater than what is required for the protection of american vessels. but i cannot form any correct estimate of the probable addition resulting to the revenue from such increase. much would depend on the suppression of the trade carried on by american vessels with enemies' licenses. with respect to the necessity of providing an additional revenue for the year , i beg leave to refer to the statements made and opinions expressed, when i had the honor several weeks ago to wait on the committee of ways and means. and i beg leave to add that this necessity has been considerably increased by the subsequent expenditures authorized by law; amongst which must be particularly mentioned the act for the increase of the navy, and that for raising twenty thousand men for one year. indeed, considering the general rate of expenditure resulting from the war measures which have been adopted, i am of opinion it will be necessary to recur both to a modification or repeal of the non-importation acts and to the proposed internal taxes, in order to provide a revenue commensurate with those expenses. when an additional revenue of five millions was believed sufficient, that opinion was predicated on the supposition made by the committee, that annual loans of only ten or twelve millions of dollars would be wanted. with a revenue of twelve millions of dollars for this year, it is ascertained that a loan of at least sixteen millions is necessary. i have the honor to be, &c., albert gallatin. hon. langdon cheves, _chairman, &c._ the report and documents were read. mr. cheves then introduced the bill above mentioned, which was read the first time, and ordered to be read a second time by a vote of to . tuesday, february . mr. milnor presented a memorial of the pennsylvania society for promoting the abolition of slavery, complaining that american vessels, navigated by american citizens, are engaged in the african slave trade, under the flags of foreign nations, and praying that congress will take this subject into consideration, and pass such laws as will remedy the evil of which they complain.--referred to a select committee; and mr. milnor, mr. robertson, mr. grosvenor, mr. wheaton, and mr. earle, were appointed the committee. _naturalization laws._ on motion of mr. lacock, the house resolved itself into a committee of the whole, on the bill to amend the naturalization laws of the united states; which, having been amended in committee, was reported to the house. mr. lacock moved to amend the bill by extending the naturalization of aliens to all those "who have heretofore or may within nine months hereafter, declare their intention agreeably to law to become citizens of the united states," and declaring that they may be admitted as such. this motion was negatived.--for the amendment , against it . on the question of concurrence with the committee in striking out the second section of the bill, which deprives of his right to the privileges of citizenship any citizen who shall depart from and remain without the limits of the united states for a term of two years--the yeas and nays were, for striking out the section , against it . the bill having been thus amended, was ordered to be engrossed for a third reading. wednesday, february . the engrossed bill supplementary to the several acts on the subject of a uniform rule of naturalization, was read a third time. mr. bacon opposed its passage on the ground of the impolicy of encouraging the emigration of alien enemies during the existence of war; and concluded a short speech against the bill by moving its commitment to a committee of the whole. mr. grundy supported the motion on the ground of defects in the detail of the bill, which he wished to amend. the motion for recommitment was carried by a large majority, and the bill made the order of the day for monday. _war taxes._ mr. little introduced the following resolution, with some remarks in favor of the policy of the non-importation act, to which he avowed himself to be very friendly, and to the suspension of which he was opposed: "_resolved_, that the committee of ways and means be, and hereby are, instructed to report to this house a bill or bills laying taxes for the support of the war." the question of considering of this resolution was decided in the affirmative, by yeas and nays--for consideration , against it . the resolution being thus presented to the house for its adoption-- a desultory debate of two hours took place on it, in the course of which a motion was made by mr. grundy to lay the resolution on the table, and negatived-- to . the following was the course of the debate, which was of too irregular a nature to be reported entire: mr. grundy opposed the motion, because it had already been declared impracticable, by the committee of ways and means, to act properly on the subject at the present session. mr. little supported it, on the ground of his opposition to a suspension of the non-importation act, a measure which he reprobated as injurious to the manufactures of our country, and weakening our measures against great britain, of which he considered the non-importation act to be as powerful as any. mr. stow advocated the motion, because he wished the house to redeem the pledge given at the last session, that taxes would be laid at this, and to observe something like consistency in their proceedings. mr. weight was also warmly in favor of the measure, and rather imputed blame to the committee of ways and means for not having before acted on this subject, without waiting for instructions from the house. mr. bibb replied to the remarks which had been made in favor of the resolution. at the last session it was presumed that it would be necessary to lay taxes at this session; but the revenue accruing in the intermediate time had swelled so far beyond its anticipated amount as to render it unnecessary to levy taxes for the service of the ensuing year. mr. wright again spoke in favor of the motion. mr. richardson was decidedly in favor of a repeal or modification of the non-importation act, though he believed both that measure and the imposition of taxes would be necessary to supply the revenue. mr. mckim was in favor of the motion, because he was opposed to the suspension or weakening of the non-importation act. mr. cheves spoke at length in defence of the committee of ways and means, and in demonstration of the impracticability of acting on the subject properly at the present session. sitting day and night, and passing by all other business, a proper system of taxation could not be digested and put into the form of law before the end of the session. two only out of fourteen of the bills it would be necessary to pass to carry the system proposed at the last session into effect, would require the whole of the present session to perfect them. the passage of a system of taxation, besides, would not obviate the necessity of the passage of the law suspending partially the non-importation act. it would require both. the taxes, he agreed, must be laid, but could not at the present session. mr. wright replied. mr. stow again spoke. he would, if all the tax bills could not be passed, at least pass one, and break the charm which seemed to withhold the house from touching the subject. mr. archer moved to strike out the whole of the resolution, for the purpose of inserting an instruction to the committee of ways and means to report a bill or bills, pursuant to the report of the committee of ways and means on this subject, which passed the house on the th day of march, . this modification of the motion was accepted by mr. little. mr. cheves then withdrew his objection to the motion, as it contained a definite instruction, and he felt a delicacy as a member of the committee of ways and means in opposing it, though he was convinced it would be impracticable to pass the bills at the present session. mr. roberts opposed the motion, and expressed his regret that the discussion, which was fixed for to-morrow, should be forestalled by this resolution. mr. johnson warmly opposed the motion, as going to cast censure on a committee which had labored day and night in its vocation, and requiring them to originate measures which they had already declared it impracticable to act on at the present session, &c. mr. widgery also spoke against the motion, decidedly. the question on the adoption of the resolution as modified by mr. archer, was decided in the negative--yeas , nays . thursday, february . _encouragement to privateering._ on motion of mr. little, the house resolved itself into a committee of the whole, on the bill remitting the claim of the united states to certain goods, wares, &c., captured by the private armed vessels of the united states. mr. mckim, under the belief that the bill as it now stands does not place privateers on a better footing than before, and does not answer the object intended by the resolution which produced it, proposed the following substitute by way of amendment: "that all right and claim of the united states to british property, which may have been captured by american privateers, arising from forfeiture under any provision of the act entitled 'an act to prohibit commercial intercourse between the united states and great britain and france and their dependencies, and for other purposes,' and an act entitled 'an act concerning the commercial intercourse between great britain and france and their dependencies, and for other purposes,' and an act supplementary to the last mentioned act, be, and the same is hereby relinquished for the benefit of the owners, officers, and crews of the privateers respectively that may have captured the same." this amendment produced some discussion, in which messrs. mckim and wright advocated the motion, and messrs. roberts and fisk opposed it; when the question was taken and lost, without a division. mr. roberts moved to amend the bill, so as to include captures made of goods which were shipped anterior to as well as since the declaration of war was known in england. this amendment was adopted, to . the committee then rose, reported the bill to the house, as amended; the amendments were concurred in, and the bill ordered to be engrossed and read a third time to-morrow, to . friday, february . another member, to wit, from new hampshire, george sullivan, appeared, and took his seat. _encouragement of private armed privateering._ the engrossed bill to release the claims of the united states on certain goods, wares, and merchandise, captured by private armed vessels, was read a third time, and debated. the bill was passed by the vote, by yeas and nays--for the bill , against it : _capture of the java._ the following message was received from the president of the united states: _to the senate and house of representatives of the united states_: i lay before congress a letter, with accompanying documents, from captain bainbridge, now commanding the united states frigate "the constitution," reporting his capture and destruction of the british frigate "the java." the circumstances and the issue of this combat afford another example of the professional skill and heroic spirit which prevail in our naval service. the signal display of both by captain bainbridge, his officers, and crew, command the highest praise. this being a second instance in which the condition of the captured ship, by rendering it impossible to get her into port, has barred a contemplated reward of successful valor, i recommend to the consideration of congress the equity and propriety of a general provision, allowing, in such cases, both past and future, a fair proportion of the value which would accrue to the captors on the safe arrival and sale of the prize. feb. , . james madison. u. s. frigate constitution, st. salvador, _january d, _. sir: i have the honor to inform you that, on the th ultimo, at p. m., in south latitude ° ', and west longitude °, about ten leagues distant from the coast of brazil, i fell in with, and captured, his britannic majesty's frigate java, of guns, and upwards of four hundred men, commanded by captain lambert, a very distinguished officer. the action lasted one hour and fifty-five minutes, in which time the enemy was completely dismasted, not having a spar of any kind standing. the loss on board the constitution was nine killed and twenty-five wounded, as per enclosed list. the enemy had sixty killed and one hundred and one wounded, certainly; (among the latter, captain lambert, mortally;) but by the enclosed letter, written on board this ship, by one of the officers of the java, and accidentally found, it is evident that the enemy's wounded must have been much greater than as above stated, and who must have died of their wounds previously to their being removed. the letter states sixty killed and one hundred and seventy wounded. for further details of the action, i beg leave to refer you to the enclosed extracts from my journal. the java had, in addition to her own crew, upwards of one hundred supernumerary officers and seamen, to join the british ships of war in the east indies; also, lieutenant general hislop, appointed to the command of bombay, major walker, and captain wood, of his staff, and captain marshall, master and commander in the british navy, going to the east indies to take command of a sloop of war there. should i attempt to do justice, by representation, to the great and good conduct of all my officers and crew, during the action, i should fail in the attempt; therefore, suffice it to say, that the whole of their conduct was such as to merit my highest encomiums. i beg leave to recommend the officers particularly to the notice of government, and also the unfortunate seamen who were wounded, and the families of those brave men who fell in the action. the great distance from our own coast, and the perfect wreck we made of the enemy's frigate, forbade every idea of attempting to take her to the united states. i had, therefore, no alternative but burning her, which i did on the st ultimo, after receiving all the prisoners and their baggage, which was very tedious work, only having one boat left out of eight, and not one boat left on board the java. on blowing up the frigate java, i proceeded to this place, where i have landed all the prisoners, on their parole, to return to england, and there remain until regularly exchanged, and not to serve in their _professional capacities_, in any place, or in any manner whatever, against the united states of america, until said exchange is effected. i have the honor to be, &c. william bainbridge. hon. paul hamilton, _secretary navy_. tuesday, february . _the frigate constitution._ the house resolved itself into a committee of the whole on the bill, reported by the naval committee this morning, to compensate the officers and crew of the united states frigate constitution for the destruction of the british frigates guerriere and java. [this bill provides that ---- dollars shall be paid out of the treasury to captain hull and the officers and crews of the constitution frigate, and a like sum to captain bainbridge and his crew, for their two gallant achievements; and appropriates a sum of ---- dollars therefor.] mr. bassett moved to fill the first blank with fifty thousand dollars. after some conversation between messrs. bassett, ely, stow, and milnor, on the propriety of making a general instead of a special provision on this head, as recommended by the president, the question on filling the first blank with fifty thousand dollars was carried in the affirmative, ayes . the second blank was then filled with one hundred thousand dollars. the committee rose and reported the bill; and the amendments were concurred in. the bill was then ordered to be engrossed, and read a third time. wednesday, february . _the frigate constitution._ the bill making compensation to the officers and crew of the frigate constitution for the destruction of the british frigates guerriere and java, was read a third time and passed, by yeas and nays. for the bill , against the bill . _order in council._ the following message was received from the president of the united states: _to the senate and house of representatives of the united states_: i lay before congress copies of a proclamation of the british lieutenant governor of the island of bermuda, which has appeared under circumstances leaving no doubt of its authenticity. it recites a british order in council of the th of october last, providing for the supply of the british west indies and other colonial possessions, by a trade under special licenses; and is accompanied by a circular instruction to the colonial governors, which confines licensed importations from ports of the united states, to the ports of the eastern states exclusively. the government of great britain had already introduced into commerce during war, a system, which, at once violating the rights of other nations, and resting on a mass of forgery and perjury unknown to other times, was making an unfortunate progress in undermining those principles of morality and religion which are the best foundation of national happiness. the policy now proclaimed to the world, introduces into her modes of warfare a system equally distinguished by the deformity of its features, and the depravity of its character; having for its object to dissolve the ties of allegiance and the sentiments of loyalty in the adversary nation, and to seduce and separate its component parts, the one from the other. the general tendency of these demoralizing and disorganizing contrivances will be reprobated by the civilized and christian world; and the insulting attempt on the virtue, the honor, the patriotism, and the fidelity of our brethren of the eastern states, will not fail to call forth all their indignation and resentment, and to attach more and more all the states to that happy union and constitution, against which such insidious and malignant artifices are directed. the better to guard, nevertheless, against the effect of individual cupidity and treachery, and to turn the corrupt projects of the enemy against himself, i recommend to the consideration of congress the expediency of an effectual prohibition of any trade whatever, by citizens or inhabitants of the united states, under special licenses, whether relating to persons or ports; and, in aid thereof, a prohibition of all exportation from the united states in foreign bottoms--few of which are actually employed--whilst multiplying counterfeits of their flags and papers are covering and encouraging the navigation of the enemy. james madison. february , . the message and accompanying documents were referred to the committee on foreign relations. _extra session._ the house went into committee of the whole on the bill to alter the time of the next meeting of congress--a motion being under consideration to fix on the fourth monday in october. mr. grundy spoke in reply to some observations of mr. johnson (on yesterday) in favor of that day. mr. g. was decidedly in favor of meeting in may; he believed it necessary to the support of public credit that the house should meet in may. had not the committee of ways and means first taught him that an early session was necessary with that view, if revenue should not, as it would not, be provided at this session, he should not have been found advocating an extra session. the house had been told by their financial committee, that it was indispensably necessary forthwith to provide a revenue; and that a paper system, without a foundation of permanent revenue, would involve the nation in disgrace or irretrievable ruin. mr. g. quoted various reports of the committee of ways and means to show that they had made such statements. with these facts staring him in the face, how could he do otherwise than urge an early session? if it was indispensably necessary a day or two ago to provide a revenue, what had since occurred obviating that necessity? nothing. war had been declared, and it was the duty of those who declared it to provide the ways and means of carrying it on. mr. g. protested against the idea which had been advanced of giving enormous interest for loans, and against accumulating a large debt, almost without the knowledge of the people on whom it would be saddled, and expressed his determination, as far as lay in his power, to go on and provide the ways and means. saturday, february . _power of retaliation._ the bill giving to the president of the united states the power of retaliation in certain cases therein mentioned, was read a third time. a motion was made by mr. quincy to adjourn--lost, to . the bill was then passed by the following vote: yeas.--willis alston, jr., william anderson, stevenson archer, david bard, william barnett, burwell bassett, william w. bibb, william blackledge, william butler, john c. calhoun, francis carr, langdon cheves, james cochran, john clopton, richard cutts, john dawson, joseph desha, samuel dinsmoor, elias earle, meshack franklin, thomas gholson, peterson goodwyn, isaiah l. green, felix grundy, bolling hall, obed hall, john a. harper, john m. hyneman, richard m. johnson, william kennedy, william r. king, peter little, william lowndes, thomas moor, william mccoy, samuel l. mitchill, james morgan, jeremiah morrow, hugh nelson, thomas newton, stephen ormsby, israel pickens, william piper, james pleasants, jr., john rhea, john roane, jonathan roberts, thomas b. robertson, adam seybert, samuel shaw, george smith, john taliaferro, charles turner, jr., robert whitehill, david r. williams, and robert wright. nays.--abijah bigelow, elijah brigham, epaphroditus champion, martin chittenden, james emott, asa fitch, thomas p. grosvenor, lyman law, jos. lewis, jr., jonathan o. mosely, elisha r. potter, josiah quincy, william reed, william rodman, daniel sheffey, richard stanford, and leonard white.[ ] monday, march . _foreign licenses._ an engrossed bill to prohibit the use of licenses or passes, issued under the authority of any foreign government, was read the third time. and on the question, "shall this bill pass?" it passed in the affirmative--yeas , nays . _relations with france._ mr. goldsborough, after observing on the propriety of the house having all the information on foreign affairs which was accessible; and remarking, also, that they were much in the dark in respect to our relations with france, moved the following resolution: _resolved_, that the president of the united states be requested to cause to be laid before this house the french decree, purporting to be a repeal of the berlin decrees, referred to in his message of the th of november last; together with such information as he may possess concerning the time and manner of promulgating the same; and, also, any correspondence or information touching the relations of the united states with france, in the office of the department of state, not heretofore communicated, which, in the opinion of the president, it is not incompatible with the public interest to communicate. and on the question to agree to the same, it passed in the affirmative--yeas , nays . mr. goldsborough and mr. kennedy were appointed a committee to present the said resolution to the president. on motion, the house adjourned. tuesday, march . _non-exportations in foreign bottoms._ the house again resolved itself into a committee of the whole, on the bill prohibiting the exportation of certain articles therein specified, in foreign vessels. mr. clay spoke at considerable length in favor of this bill, as forming a complete system, connected with one which passed the house the other day, prohibiting the use of foreign licenses on board vessels of the united states, suited to the present relations of the united states, and to the proper action on the enemy. mr. robertson spoke as follows: mr. chairman, i do not often trespass on the patience of the house, but i request their attention whilst i state a few of the reasons which compel me to oppose the bill now under consideration. i am the more disposed to do this, because my opposition arises from considerations in a great measure peculiar to myself, and because i differ with gentlemen in the correctness of whose opinions i usually concur. without, then, considering the principles it involves, i reject this bill, because it is not in fact what it professes to be; it is not a restrictive measure; its provisions may operate prejudicially on ourselves, but cannot affect the enemy. in one of two general systems, i might go along with gentlemen. let us have non-importation, non-intercourse, and embargo--thus the restrictive system may have its full bearing; let us refuse to purchase manufactures of the british; let us refuse to furnish them with provisions, then we may be consoled for the privations which we ourselves must experience, by reflecting on the great evils which we inflict on the enemy. i can but smile at the patriotism of honorable gentlemen, who affect to starve the english by refusing to buy their manufactures, whilst they inundate the army, the navy, the colonies of that nation, with a profusion of all the necessaries and luxuries of life--they will starve a few miserable manufacturers, whilst they industriously feed their armed men. with the most glaring and barefaced inconsistency, they object to admitting into our markets any the minutest article of british manufacture, that the inhabitants may perish for the want of means to purchase bread; whilst bread is exported with a hope that it should, indeed a perfect certainty that it will be consumed by this same people. i cannot concur in these half-way measures. i voted for a repeal of the non-importation act. i hoped that commerce, sufficiently hazardous and fettered by the present state of the world, would cease to be shackled by ourselves. i hoped, that now the sword was drawn, we should carry on war in the usual and accustomed manner--that the government would be aided by the receipt of revenue arising from duties and imposts--that the people would be thus partially relieved from taxes--that the nation would be strengthened and inspired by an accession of wealth, now more than ever necessary. but whatever, sir, might be my opinion of this bill, viewed as a restrictive measure; for other considerations it meets with my decided disapprobation. we prohibit neutrals from clearing out from our ports with the productions of our country, whilst our own vessels are left free to do so. we deny to them that commerce, which as a neutral we formerly enjoyed. heretofore we complained of the injustice of belligerents, and now that we are engaged in war, and that too for _neutral rights and free trade_, we are about to practise similar abuses. aware that some apology would be deemed necessary, we call it a municipal regulation; it may be so--and perhaps we are borne out by strict law; but we attempt a justification on the ground of cutting off our enemy from supplies, of which he stands in need, and which, notwithstanding his perilous situation, he dares to hope to receive through a train of insolent artifices, derogatory to the integrity of the union, and disgraceful to those with whom they shall prevail. now, sir, if the measure proposed could in any way counteract his views--if it went the full length of preventing him from procuring the various articles which his necessities require, i confess it would be inflicting a punishment, which not only the laws of war would authorize, but which the unprecedented baseness of his late attempt most loudly calls for; but no such effect will be produced. for what is there to prevent our vessels from transporting the products of the united states to amelia, pensacola, st. bartholomews, there to be deposited, and thence carried in neutral or british bottoms to jamaica, the bahamas, or wheresoever else they may be wanted? and again, if, notwithstanding the hostile attitude in which we stand in relation to each other england is compelled to encourage a trade by license, will not her necessities equally induce her to connive at exportation? can it be doubted, that her armed vessels would not be instructed to allow our provisions to pass unmolested, when, by pursuing a contrary conduct, she would be starving her own colonies? and is it not clear that a traffic, which the war prevents from being direct, would continue to be carried on, as it is at present, through intermediate ports? mr. chairman, the present scheme seems to me to be merely calculated to produce vexation and embarrassment at home; to operate with peculiar hardship on neutral rights, without inflicting on the enemy any injury commensurate with these evils. sir, if gentlemen wish to reap the full effect of a restrictive system, that system must be rigid and complete. let our ports be sealed; let there be neither egress nor ingress; let us neither buy nor sell, and let us prepare to bear the positive burdens of active war. no section of our widely-extended union could then complain of _peculiar_ oppression. the plan would present itself to us, recommended, at least, by the generality of its operation; by the impartiality of its character. but, if this cannot be done, if the shipping interests of some of the states, and the manufacturing establishments of others, must be encouraged, and if others still must sell their wheat and flour, let us pursue the opposite course; let us sweep restrictive measures by the board; thus should we enjoy all the advantages which would result to the government from imposts, all the benefits that would accrue to individuals from exports. in either of these modes of proceeding i might concur; but i cannot consent to the plan now submitted, nor acquiesce in the wisdom or policy of our existing regulations. they are not promotive of the general welfare, but, on the contrary, are ruinous to the interests of that portion of the union whose interest it is peculiarly my duty to protect. yet, i cannot help observing that, however under their oppressive operation commerce languishes, and southern agriculture is completely annihilated, they are tolerated by the eastern states, because they promote their domestic manufactures, and impoverish and embarrass the government; and they are advocated and supported by the middle states, because they consider, or affect to consider them, as very patriotic; because they inflict privations, which, by-the-by, they do not feel; and, finally, because, nevertheless, they are enabled to sell off, at excellent prices, the productions of their farms. thus, sir, a feast is spread before us; but it is served up, however splendidly and abundantly, in shallow dishes; and, while the foxes of the eastern and middle states lap up the soup with great dexterity, the storks of the mississippi, mobile, and altamaha, look on, perhaps with admiration, but certainly with no satisfaction whatever. while, sir, the spleen of hostility towards the government is gratified, while the manufacturing establishments of the east are promoted, while the middle section of the union disposes of, at high prices, the abundant harvest of their fields, what becomes of the commerce of our country? what fate befalls the agriculture of the south? our cotton rots on the stalk. from this proscription of foreign manufactures, the grower of the raw material is irretrievably ruined. possibly he may sell an inconsiderable portion of his crop, for contemptible prices, to domestic manufacturers, while he is compelled to buy, at enormous rates, the articles which his wants require. if he wishes to sell, he finds no competition among purchasers. does he find it necessary to purchase, he suffers equally from the want of competition among those who sell. a debate of considerable length took place, in which mr. calhoun supported the bill, though opposed to the amendment made on motion of mr. quincy in committee of the whole. mr. grosvenor spoke as follows: mr. speaker: when i had the honor to address you, on a measure which has finally passed this house, i stated, at some length, my reasons for believing that the government had no serious intention to pass the bill now before you. but, sir, from a furious zeal, this day manifested in a certain quarter, to drive the measure through this house, i fear i was mistaken. i therefore deem it an indispensable duty, in the name of the commercial and agricultural districts which i represent, to enter my solemn protest against this new project of the government. i shall not enter into any argument, to show the impolicy, the injustice, and the danger of such a measure, considered as a measure of non-exportation. the task has been most ably and successfully performed by an honorable gentleman from south carolina, (mr. lowndes;) he has shown, that connected with the maritime power of the enemy, and with other bills already passed this house, this measure has all the blasting qualities, without even the few equivocal benefits of a broad restrictive system; and he has demonstrated the irreparable mischiefs which must result from such weak and mongrel measures. his reasoning has not been met--it cannot be refuted--i will not weaken its effect on the house, by attempting to enforce it. my principal object in rising, was to examine the grounds upon which the honorable gentleman from south carolina, (mr. calhoun,) who last addressed you, has rested his justification of the measure. he has assured us, that it is not at all intended as a part of any new system; that its object is in no respect a prohibition of free and fair exportation. sir, whatever gentlemen may intend, it is too palpable for denial, that this measure is, in truth, a restrictive and an anti-commercial measure, and in conjunction with the license bill already passed, must operate (as far as such weak and unnatural measures can operate) as a broad and iron system of non-exportation. but, sir, what are the intention and the objects of the bill according to the view of that honorable gentleman: "to avenge insult"--"to retaliate on the enemy his attempts to destroy us"--"to carry to his own lips his own poisoned chalice." and where are these insults, these injuries, these vital attempts of the enemy to be found? henry's celebrated mission, after rioting for a time on the spoils of the treasury, has found the tomb of the capulets. and although its ghost seems to haunt the honorable gentleman from south carolina, yet sure i am, that a thing of air would not have inspired him with all those bitter feelings which he has poured forth upon the enemy. no, sir, it is the last message of the president which contains all this dreadful matter. in that message came before us an order in council by the prince regent, and a letter from a british secretary, to a west india governor. sir, by that order, certain west india ports are opened to the importation of articles which they wish to purchase, and to the exportation of produce which they wish to sell. this is no new practice; in every european war, the belligerent mother country has never failed to open some of her colonies to neutral commerce. by this order nothing more is done, and so far from any insult or injury to us in the body of the order, our nation is not even named. the honorable gentleman from south carolina (mr. lowndes) has pertinently asked, to what extent you would carry your new principles of honor and retaliation. the enemy spares the commerce of the east, and destroys that of the south; you must equalize them by destroying the former. you cannot stop here. if the enemy _blockades_ the south, you must _embargo_ new england. if he burns charleston and norfolk, you must burn new york and boston. in fine, any thing spared in one section of the union by the enemy, which he has the power to destroy, and not spared in another, must be destroyed by our government, by way of equalizing the burdens of the war. the gentleman from south carolina, (mr. calhoun,) to whom i have so often alluded, was disposed highly to compliment the people of the northern states. he declared his full confidence in their fidelity, patriotism, and honor, and he believes that they will not only spurn with contempt the attempt to seduce them, but will hail the present measure as just, honorable, and wise. sir, the patriotism of that people is undoubtedly as warm and as disinterested as that of any people on this globe; and if, indeed, this were an attack on their honor, they would need no such law as this to teach them their duty, or to compel them to perform it. but, sir, i do not believe that their patriotism will feel insulted. they will hardly be satisfied by flattery and compliment for this attack upon their commerce. i would not be surprised if they should answer the honorable gentleman somewhat in this manner: "hands off, mr. calhoun, if it please you; we do not dislike your compliments; indeed, we are pleased with the notes of this new tune from the south. we will do any thing in reason to oblige you; but really, sir, to be complimented out of our commerce; to be flattered into poverty; to be cowed into service, is a little more than the rules of civility demand." it has been avowed on this floor, [by mr. speaker clay,] that this bill is only one part of a contemplated system of rigid non-exportation. have gentlemen reflected on the disastrous consequences of such a system at the present time? the district which i have the honor to represent, is a portion of an extensive tract of mercantile and agricultural country, extending up the hudson river far into the interior of new york. the merchants and farmers of that country did believe, that when you appealed to arms, your restrictive system was at rest forever. they had a right so to believe, from the declarations of gentlemen on this floor, and from the unequivocal conduct of government. under this belief, during the present winter the merchants have constantly purchased produce at high and advanced prices. in the numerous villages scattered on either side of the hudson river, and over immense tracts far to the west of it, the stores are groaning with the productions of their soil. sir, when the spring opens, they will find all their prospects blasted, and bankruptcy staring in their faces. through the whole frozen interior of the north and east, the condition of the merchants and farmers is similar, and similar disastrous consequences will be realized. we are involved in war with a nation powerful in her resources, clothed in complete armor, and to whom, from long habit, a state of warfare has become almost a national condition. we need all our resources and all our energies to save this war from a disgraceful conclusion. what then but madness can dictate a policy tending to dry up our resources and paralyze our energies. wounded by the spear of war, what but downright political quackery could prescribe those "restrictive" nostrums, to restore the nation to health and vigor? are the old chimerical notions of _starving_ the enemy, yet floating in the brains of gentlemen? in despite of experience, do they yet believe that our blessed country _alone_ can produce food for the world? are the countries of the baltic and caspian seas no longer cultivated? has the nile ceased to fructify the fields of egypt? have sicily and the barbary coasts returned to a barren state of nature? has france herself agreed to bury her surplus breadstuffs in the earth? or has england lost that ascendency on the ocean, and forgot all those commercial arts, by which she was wont to procure supplies from all those countries? seven years of restrictions have in vain been tried. your enemy has laughed you to scorn, and your own people have cursed the policy that crushed their prosperity. there is no doubt that, as at the time you laid the embargo, the closing of your ports now, might produce a temporary inconvenience to the enemy; but the measure would finally and permanently recoil on our merchants, and even farmers. these men have, therefore, a deep and vital interest in this question. twice already they have been sacrificed to test the efficacy of our "restrictive energies." do you intend again to stretch them on the rack, again to cover the country with sackcloth and ashes? is another brood of "restrictive" harpies, more unseemly and more hungry than their predecessors, to be let loose among them? and is this bill a pioneer to the new swarms of "continental" locusts? mr. speaker, i shudder when i behold that anti-commercial demon, which for seven years has been glutted with the mangled limbs of commerce, still hovering about this bill. the deluded people did believe that, when "you let slip the dogs of war," the monster had fallen, never again to trample down their rights, or devour the remnant of their prosperity. they were mistaken. he has risen invigorated from the blow; like the horse leech, he continues to cry, "give, give!" he never will be satisfied while the farmers of the north and the east are prosperous and powerful, or while the ships of an independent merchant float safely and successfully on the ocean. sir, i do trust in heaven, that the people of this union will not sleep forever--i do trust, that the time is not far distant when the rulers of this nation shall be compelled again to travel in the paths of peace, commerce, and honor. i do trust that this new system, fraught as it is with new destruction, will meet an effectual overthrow. on this floor, i have no hope of such an event. the current of influence is here too strong to be resisted. but if the god of nations "doth seek our rulers, and hath given our senators wisdom," it must find its grave in the other branches of the government. mr. quincy opposed the bill, and after some remarks from mr. blackledge in reply to him, the question on concurring with the committee of the whole in their amendment was taken, to wit: to strike out from the fifth line of the first section, the words, "and every," and to insert "wheat, flour, rice, cotton, tobacco, indigo, tar, pitch, or turpentine, or any other article, the growth, produce, or manufacture of the united states:." and passed in the affirmative--yeas , nays . _constitution and java._ the house took up for consideration the resolution from the senate requesting the president of the united states to present to captain william bainbridge a gold medal, with suitable inscriptions, and to the officers of the frigate constitution silver medals, in testimony of the high sense entertained by congress of their gallantry and skill in achieving the capture and destruction of the british frigate java; which was read three times, and passed. _bounty to privateers._ the house went into a committee of the whole on the bill allowing a bounty to privateers; but the committee being unable to progress for want of a quorum, it rose and reported the fact to the house; and the bill and report were ordered to lie on the table, and the house adjourned. wednesday, march . _navy yards._ on motion of mr. reed, _resolved_, that the secretary of the navy be, and he is hereby, directed to report to this house, at the next session of congress, a statement of the number of navy yards belonging to, and occupied for the use of the united states; the accommodations provided in each, with the number of officers and men attached to each, with their rank and pay; also, the quantity and species of timber provided in each. also, a statement of the expenditures made in each yard during the years and ; the number of vessels required during that time, with the species, quantity, and cost of repairs on each vessel, and the manner in which such repairs have been made, whether by contract or otherwise, and the terms. also, the amount of timber provided under the law making an annual appropriation of two hundred thousand dollars, with a statement of the contracts made under said act, and the terms thereof: also, the number of officers in the naval service of the united states, their rank, pay, and employ. _encouragement to privateers._ the bill allowing a bounty to privateers was passed through a committee of the whole, and ordered to lie on the table, under the impression that it could not be acted on at the present session. evening sitting, _ o'clock_. _thanks to the speaker._ on motion of mr. sawyer, _resolved unanimously_, that the thanks of this house be presented to henry clay, in testimony of their approbation of his conduct in the discharge of the arduous duties assigned him while in the chair. whereupon, the hon. speaker rose and made the following observations: "i thank you, gentlemen, for the testimony you have just so kindly delivered in approbation of my conduct in the chair. amidst the momentous subjects of deliberation which undoubtedly distinguish the th congress as the most memorable in the annals of america, it has been a source of animating consolation to me, that i have never failed to experience the liberal support of gentlemen in all quarters of the house. if in the moment of ardent debate, when all have been struggling to maintain the best interests of our beloved country as they have appeared to us respectively, causes of irritation have occurred, let us consign them to oblivion, and let us in the painful separation which is about to ensue, perhaps forever, cherish and cultivate a recollection only of the many agreeable hours we have spent together. allow me, gentlemen, to express the fervent wish that one and all of you may enjoy all possible individual happiness, and that in the return to your several homes you may have pleasant journeys." _closing business._ on motion of mr. dawson, a committee was appointed, jointly with a committee to be appointed by the senate, to wait upon the president of the united states, and inform him that the two houses are now ready to adjourn, and desire to know whether he has any further communication to make to them during the present session. messrs. dawson and grosvenor were appointed the committee on the part of the house. the senate agree to the resolution for the appointment of a joint committee to wait on the president of the united states, and notify him of the proposed recess of congress, and have appointed a committee on their part. for some time a quorum was not present. bills from the senate were waiting. a call of the house was had, and it appeared that sixty-four members only were present. after receiving from the president all the bills which had passed, and being informed by the committee that he had no further communications to make, the house adjourned _sine die_. footnotes: [ ] chief justice marshall. [ ] this debate, although arising on a subject which implied a limited discussion, soon passed beyond its apparent bounds, and instead of being confined to the simple military question of raising additional troops, expanded into a discussion of the whole policy, objects and causes of the war, and became the principal debate of the session. all the leading members of the house took part in it; and many new members, then young, and whose names have since become famous, then took their start. [ ] the chairman had risen to put the question, which would have cut mr. c. off from the chance of speaking, by returning the bill to the house. [ ] the well-known political writer, william cobbett, publishing a gazette under the name of peter porcupine. [ ] mr. barlow's journey to wilna, where he only arrived to die. [ ] the following is the act as passed: _be it enacted, &c._, that in all, and every case, wherein, during the present war between the united states of america and the united kingdom of great britain and ireland, any violations of the laws and usages of war among civilized nations, shall be or have been done and perpetrated by those acting under authority of the british government, on any of the citizens of the united states, or persons in the land or naval services of the united states, the president of the united states is hereby authorized to cause full and ample retaliation to be made, according to the laws and usages of war among civilized nations, for all and every such violation as aforesaid. sec. . _and be it further enacted_, that, in all cases where any outrage or act of cruelty or barbarity shall be or has been practised by any indian or indians, in alliance with the british government, or in connection with those acting under the authority of the said government, on citizens of the united states or those under its protection, the president of the united states is hereby authorized to cause full and ample retaliation to be done and executed on such british subjects, soldiers, seamen, or marines, or indians, in alliance or connection with great britain, being prisoners of war, as if the same outrage or act of cruelty or barbarity had been done under the authority of the british government. approved, march , . index to vol. iv. a _absentees_, recall of, resolution to direct the speaker to request their attendance, . adams, john quincy, resigns seat in senate, . _see index_, vols. , . _allegiance, foreign_, petition of inhabitants of kentucky, stating that the king of great britain, by proclamation, claims the allegiance of all persons born in his dominions, ; had authorized their impressment, &c., &c.,--petition prays for resistance of this assumption, . _see index_, vol. . alexander, evan, representative from north carolina, ; moves a committee of inquiry relative to proving the acts and proceedings of states, . _see index_, vol. . _algerine war._--_see index_, vol. . alston, lemuel j., representative from south carolina, , , , . _see index_, vol. . alston willis, jr., representative from north carolina, , , , , , ; on the value of blank ballots, ; on a vote of approbation of the conduct of the executive, ; opposes the postponement of the resolution relative to the apportionment of representation, ; on the ratio of representation, ; on laying additional duties, ; on establishing a quartermaster's department, . _see index_, vols. , . amy dardin, report on petition of, ; bill read, &c., ; report for relief of, agreed to, . _see index_, vols. , , . _amendments to the constitution._--_see index_, vols. , , . anderson, joseph, senator from tennessee, , , , , , ; presents memorial of legislative council of mississippi territory, ; on the incorporation of a bank of the united states, ; on a recess of congress, . _see index_, vols. , . anderson, william, representative from pennsylvania, , , , , . archer, stevenson, representative from maryland, , ; on foreign relations, ; on the policy of the war, ; on war taxes, . _armed vessels_, public and private, encouragement of, resolution relative to, . _see privateers._ armstrong gen., his letter to mr. pinkney, ; letter of, on additional general officers, . _army, pay of the._--in the house, bill concerning the pay of the army considered, ; the present pay of the army much below the average price of labor, ; wherefore should the soldier receive less than any other man, ; the compensation should be proportioned to the risk, ; to second section of the bill little objection apprehended, ; third section founded on the principle that every man owes to the country which protects him, military service, ; second section involves an infraction of the constitution, ; any man who had contracted a debt had certainly given a pledge not only of his property but of his body to his creditor, ; this right of the creditor to take the body is completely taken out of his hands in regard to those who enlist, ; has an _ex post facto_ operation, ; this provision necessary to guard against fraud, ; persons enlisted procure themselves to be arrested under fictitious debts, ; when let out on bail and the commander attempts to take him he is rescued on a _habeas corpus_, and courts decide the man to be the property of his bail, ; motion to strike out lost, ; third section encourages the uneasy boy to throw off parental authority or to defraud a master, its tendency is to violate public morals and the spirit of the constitution, and to interfere with public economy, ; it is unknown as well as immoral, ; other objections, ; minors above eighteen allowed to enlist, ; you go into the workshop and the parent's dwelling and entice away the apprentice and the child, ; this very population constitutes the strength and vigor of war, ; what was the fact in france, ; her army is made up of young men, ; the case of husbands deserting wives and children aged parents, is as much entitled to sympathy, ; better resort to liberal bounties and wages than violate important principles, ; the extensiveness of the relation of master and apprentice, ; can these relations dissolve under the charm of this bill, ; necessity is alleged, ; beware how you yield to this fancied necessity, ; this section will be productive of much evil and perhaps little good, ; reason to doubt its constitutionality, ; amendments negatived and bill ordered to third reading, ; the atrocity of the principle and the magnitude of the evil contained in this bill, ; third section is calculated to seduce minors from their masters, guardians, and parents, ; the absurdity of this provision--its inequality--its immorality considered, , ; sixteen was the age called upon in the revolution, ; which excites the most regret, a child leaving his parents to defend his country, or a parent torn from his family to defend a foreign power, ; the charges against this bill are a libel on the house, ; atrocious principle! let gentlemen damn the memory of the patriots of the revolution who originated this principle, ; if there is an increase of population, there appears to be a deterioration of patriotism since the revolution, ; what was the law in , ; the power to enlist minors is a new principle, ; third section examined, ; reason for the preference of young men, ; house now prepared to take up a small subject and make a great thing of it, ; a man ought not to be called on to defend his country until he has acquired political rights, ; moved to recommit the bill, ; it is of the nature of an _ex post facto_ law, and tends to exalt the military over the civil authority, ; the third section freighted with most fatal consequences, ; cases supposed, ; recommitment lost, ; bill passed, . _military force additional._--in the senate, a bill to authorize the president to accept and organize certain military corps, &c., considered, ; be productive of no efficacy, ; be inoperative, ; system of volunteers the favorite one of the government, ; the number should be reduced, ; only a formidable display of armies on paper, . _in the house_, bill taken up, ; is it such as to require secrecy? ; voted affirmatively, ; bill ordered to be engrossed and passed, . _in the house_, bills for the more perfect organization of the army, and to raise an additional military force considered in committee, ; moved to fill the blanks relative to bounty, ; the military committee present a system on which to rest the future operation of the war, ; explanation of its merits, ; object with all to terminate the war successfully, ; no other mode than to call into the field a force adequate to command every honorable object, ; the good the war has accomplished relative to our character abroad, ; the honor of the nation requires that british power on our borders should be demolished in the next campaign, ; after seeing the necessity of augmenting the regular forces, it was equally material to provide for filling the ranks, and keeping them at their full complement, ; it is proposed to appoint recruiting officers for each regiment, ; it may be said the results of the last campaign are so unfavorable that there is no object to vote further sums, ; all our disasters sprang from a cause no man in the nation could anticipate, ; treachery or cowardice caused the surrender at detroit, ; question on filling the blanks carried, ; moved to repeal the offer of bounty land to the recruits, ; this is a waste of the nation's capital without a single provident result, ; it is proposed to increase the bounty in money, ; motion agreed to, ; blanks in the other bill authorizing an additional military force severally filled, ; reason for giving the appointment of officers below the rank of colonel to the president alone, ; bills reported to the house, ; first bill ordered to be engrossed, ; question on the engrossment of the bill to raise an additional military force, ; great anticipations from the action of twenty thousand men in a single year, ; when war was declared it was said canada would be conquered in a single year, ; experience has proved the fallacy of these predictions, ; no pleasure to dwell upon the disasters and disgrace that have attended our military operations, ; the annals of the last six months are most deplorable, ; the tone and heart of the country broken, universal disgust at the past, anxiety and concern for the future, ; what is now proposed for the future, ; an army of twelve months' men--a broken reed, ; an army and term of service which well nigh lost the country in the revolutionary war, ; wherefore change the term of enlistment from five years or during the war to one year, ; feelings of the canadians, ; let us see things as they are, and look danger in the face, ; points in our relative conduct towards france and great britain which will not bear examination, ; moved to strike out one and insert five years as the term of enlistment, ; we must rise after reverses, ; if we were to unite the question would soon be settled, ; cause of the war concisely stated by capt. porter, "free trade and sailor's rights," ; is there a man doubts the war was justly undertaken? ; what injury have we not suffered, ; you have been told the prince regent and his ministers are firm, let us follow their example, ; an army should be seasoned before it is taken into the field, ; it will take a year to prepare them for the field; without discipline they are useless, ; let us raise an army for the war, ; we must take the continent from britain, ; the question is what is the kind of force, and for what length of time can you raise an army to take the field at the earliest period? ; under this measure a force may be drawn into the field ready to act efficiently in the next campaign, ; we have never engaged in any war in which we have come out better in the first campaign, ; if this country will go into the war heart and hand, we shall shortly demonstrate to the enemy that it is her interest to be at peace with us, ; amendment lost, ; question on the passage of the bill, . all desire peace, but what is the best course to obtain it, ; will the passage of this bill, and the actual enlistment of the proposed force secure peace? ; this war can be terminated with honor and advantage without further effusion of human blood, ; this does not mean that the honor of the nation is identical with the honor of those who declared the war, ; the question of contest is reduced to a single point, ; the british orders in council have been repealed, the practice of impressment alone remains, ; this has been subjected to much exaggeration, ; it is not certain england has been unwilling to enter into such an arrangement as would place this question on a fair and honorable basis, ; see the correspondence of messrs. monroe and pinkney, ; at one period she was willing to advance considerable lengths towards an adjustment, ; our duty to make an effort for the sanction of our just rights and the restoration of peace without further appeal to force, ; facts tending to confirm this belief, ; the late communications from the executive to the british government present a novelty in the history of war and diplomacy, ; this bill is a kind of second declaration of war, ; the war is both politically and morally wrong, ; it is of an offensive character, ; something unaccountable that the disposition to prosecute this war should increase, ; it rests now solely on the subject of impressment, ; this must be settled by treaty, ; we shall create an annual expense of forty millions, ; if canada could be taken it would be a great public misfortune, ; this war cannot be prosecuted without violating the laws of humanity and justice, of religion and morality, ; it is becoming more unpopular in the eastern states, ; the force contemplated to be raised is unnecessary, ; the present military establishment is certainly sufficient for all purposes of defence, ; neither canada nor any other british province will be worth the blood and treasure they will cost us, ; the militia of canada estimated too low, ; of what value would these provinces be to us, ; duty to inquire into the policy and necessity of this measure, as well as the present state of our relations with great britain, ; would the principle, if yielded to us to-morrow, benefit our native seamen, or promote the real interests of the country? ; is there probability of obtaining a recognition of this principle by a continuance of the war? ; the traffic in american protections, ; the bill is altogether inadequate to the purpose intended to be accomplished, ; it cannot be admitted that because the war is declared, we are bound to lend aid to promote every plan for prosecuting it which may be proposed, ; the bill is unnecessary for the attainment of the original object of the war, ; some of the pretended causes of the war have never been seriously relied on by our government, ; what was the avowed object of this war? ; the pretence was to take or rather to receive canada, ; the effect of this bill is to place at the disposal of the executive an army of fifty-five thousand men, ; the purpose for which these men are demanded is the invasion of canada, ; is the conquest of canada an object desirable in itself, or advantageous by its effect in promoting an early and honorable peace? ; _note_, ; the intention of the american cabinet thus unequivocally avowed, ; anxious that no doubt should exist on this subject, ; no scheme ever was or ever will be rejected by the men now in power merely on account of its running counter to the ordinary dictates of common sense and common prudence, ; illustration, ; the great mistake of all those who reasoned concerning the war and the invasion of canada, that it was impossible, was that they never took into consideration the connection of these events with the then pending election of chief magistrate, ; the invasion of canada considered as a means of carrying on the subsisting war, a means of obtaining an early and honorable peace, and a means of advancing the personal and local projects of ambition of the members of the american cabinet, ; never was there an invasion in any country worse than this in point of moral principle, since the invasion of the buccaneers, or of capt. kidd, ; they had the hope of plunder, here there is not even the poor refuge of cupidity, ; the disgrace of our arms on the frontier is terrestrial glory compared with the disgrace of the attempt, ; this nation is the last which ought to admit the design of foreign conquest, ; multitudes who approve of the war detest the invasion, ; look at the elections, what do they speak? ; the people of new england have no desire for canada, ; the surest way to defeat any hope from negotiation is this threat of invasion, ; the american cabinet understood this, ; the project of this bill is to put further off the chance of amicable arrangement, ; the present men were raised to power by elements constituted of british prejudices and british antipathies, ; such men will never permit a state of things to pass away so essential to their influence, ; the cabinet has been careful to precede negotiation with some circumstance sure to make it fail, ever since the refusal to renew the treaty of , ; the executive power passed into new hands, under the old influences and principles of the former administration, ; the whole stage of the relations induced between this country and great britain was a standing appeal to the fears of great britain, ; what is the truth in relation to the repeal of the berlin and milan decrees? ; were ever a body of men so abandoned in the hour of need as the american cabinet by bonaparte? ; reasons for referring to this subject, ; illustrations of what is doing and intended at present, ; the invitations to union which have been so obtrusively urged, ; the liberty of debate prostituted in disseminating the most unfounded charges, ; it has been charged that war had been declared prematurely and without due preparation, ; it has been said that the nature of the war is changed, ; what the legislature considered as the cause of war, ; the manner in which the points of difference between the two nations ought to be considered, ; negotiation has been tried in the matter of impressment for twenty years, ; it is pretended that this government is not desirous of peace, and that this is a war of conquest and ambition, ; if we now recede, are not points conceded to the enemy which the opposition never would concede if in power, ; how much more powerful is the objection to the right of search now than when first made, ; exemption from impressment is no new claim set up, ; the evils we have complained of were of a nature not to be remedied by war, ; what has been the state of the country since the declaration of war, ; our relations with the belligerents have essentially changed since war was declared, ; napoleon has inveigled us into a war, ; why was the evidence of a repeal of the decrees withheld, ; believing the french decrees repealed, we departed from our neutral stand, by enforcing the non-intercourse law against great britain, ; the prominent causes of the war examined, ; whether this bill is right or wrong depends upon circumstances, ; it is said to be the constitutional duty of the opponents of the war to afford every aid and encouragement, ; not the most suitable measure to be selected by the opposition, upon which to show their resistance, ; a view of the past, of different parties which have at various times appeared, and the manner by which we have been driven from a peaceful posture, ; the course of the opposition in impeding the government for the last twelve years has been unexampled in history, ; gentlemen seem to forget that they stand on american soil, ; a plot for the dismemberment of the union, ; cause of the declaration of war, ; it is said france inveigled us into the war, ; the war might have been declared even if the orders in council had been repealed earlier, ; it is said great britain has always been willing to make a satisfactory arrangement on the subject of impressment, ; what cause which existed for declaring the war has been removed, . what is the object of this vast military force? ; retrospect of the last eight years, to show how much gentlemen have been mistaken and disappointed in their views of foreign policy, ; the picture of impressments has been too highly colored, ; in that section of the union where two-thirds of the seamen come from, there is an overwhelming opinion against the war, ; the controversy seems brought to a single point, ; it is supposed this is the auspicious moment to assert our rights, ; the opinions of the majority have undergone a strange revolution, ; the conquest of the british provinces doubtful, ; physical and moral evils resulting from your measures, ; some observations on the bill itself, ; none can deny the propriety of defending the country, ; objections to the further prosecution of the war examined, ; contrariety of opinions respecting canada, ; none but cowards calculate on the cowardice of their foe, ; the war was improperly commenced and is unnecessarily continued, ; examination of the causes as they existed at the commencement and exist now, ; the claim on the part of britain relative to seamen, ; this claim examined, , , , ; the points made in debate, impressment, the right to expatriate, the right to naturalize, and french influence, ; a distinction been drawn throughout this debate between the rights of a man who cultivates the soil, and one who follows the seas, ; every attempt to settle the question of impressment for twenty years has failed, ; it is said that it is the abuse of impressment of which we complain, ; porcupine paper, ; all agree that we ought to fight for the rights of our seamen, why not all join heart and hand to do so, ; this has been a most unfortunate government as ever existed; every thing has gone wrong, ; bill ordered to be engrossed, . question on the passage of the bill, ; the army has been represented as dangerous to the liberties of the country, ; what have been the propositions heretofore made by our government to great britain? ; equitable as they were all were rejected, ; for every british seaman obtained by impressment a number of americans have been made victims, ; the change of administration in former years, ; characters of the two contending parties, ; course of the successful party, ; proceedings of our government, , ; the orders in council constituted no insurmountable obstacle to negotiation between this country and great britain, ; if the president had made that repeal a basis of negotiation, every man in the country would have hailed him as the restorer of peace, ; the ruler of france has turned with contempt from your reclamations, ; what atonement has been made for these insults and injuries, ; the indian wars on the frontier, ; has this subject been inquired into, ; a word on the subject of impressments, ; great britain rather than surrender the right of impressing her own seamen, will nail her colors to the mast and go down with them, ; this lies in a small compass, ; what was the offer made to our government by the british ministry? ; the right of search does exist, and has been acknowledged by all nations, ; the french doctrine in relation to impressment, ; author of the newburg letters to command your army, ; can the force contemplated be obtained; will it accomplish the end proposed, and will it be an economical force? ; the grounds taken by the opponents of this bill examined, , ; what is the object of this debate, ; to thwart the final success of the war, ; all the arguments of the opposition have been directed to destroy the union and zeal of the people, ; but say our opponents, as they were opposed to the war, so they are not bound to support it, ; but we are told that peace is in our power without a further prosecution of the war, ; it is said we ought to offer england suitable regulations on this subject to secure to her the use of her seamen, ; will the intended effect of the opposition be produced? ; gentlemen are conjured to bring this debate to a close, ; the success against the canadas doubtful, ; mortifying to see the conduct of the enemy vindicated and palliated, ; the several heads of discussion introduced in this debate considered, ; what is a just and necessary war? ; what did an elevated fitness of character and conduct require of this nation when war was declared? ; popular opinion was not against this war, ; impressment alone would have ultimately produced war, ; all public law, it is said, has denied the right of expatriation, ; bill passed, . _see index_, vols. , , . avery, daniel, representative from new york, , . b bacon, ezekiel, representative from massachusetts, , , , , , ; supports the resolution for immediate measures to liberate american prisoners in carthagena, ; offers a resolution relative to petitions respecting the presidential election in massachusetts, ; on a vote of approbation of the conduct of the executive, ; on miranda's expedition, ; reports relative to challenges and duels, ; against the petition of elizabeth hamilton, ; on reduction of the navy, ; against the admission of mississippi, ; on pay of the army, ; against encouragement to privateer captures, . _see index_, vol. . bayly, mountjoy, sergeant-at-arms to the senate, . bainbridge, william, letter relative to the capture of the frigate java, . baker, john, representative from virginia, , ; on the location of a military academy, . _bank of the united states_, dividends on stock of, ; capital of branches, ; expenses and losses, ; report on, . _bank of the united states._--in the house, report on the memorial of the stockholders of the united states' bank, . _in senate._--petition of the president and directors for a renewal of their charter, ; bill to incorporate the subscribers considered, ; moved to strike out the first section, in order to try the principle, ; reasons of the committee for reporting the bill, ; congress has power to pass such a bill, ; powers granted by the eighth section of the first article, ; the enumeration of certain powers excludes all other powers not enumerated, this point examined, ; not true when applied to express grants of power, strictly incidental to some original substantive power, ; subject examined, ; it is said congress can exercise no power by implication, yet can pass all laws necessary to carry the constitution into effect, ; the power to create the supreme court must be derived by implication, ; explained by an example, ; according to the construction given to other parts of the constitution, congress has the right to incorporate a bank to enable it to manage the fiscal concerns of the nation, ; the law to erect light-houses is not a law to regulate commerce, ; it is said the advocates of a bank differ among themselves in fixing upon the general power to which the right to create a bank is incidental, ; no man ventures to declare that a bank is not necessary, ; this is an apparent objection to the constitutional argument, ; the medium of state banks, ; the means by which the constitutional powers may be carried into effect, may vary if the powers do not, ; the motion to strike out goes to the entire destruction of the bill, ; the usefulness of the present bank admitted, ; what is the state of the bank in this city, ; the conduct of the bank has been honorable, liberal, and impartial, ; in every instance where it possessed the ability, it has met the wishes of the government, ; it is said these stockholders have enjoyed a boon for twenty years from which all others have been excluded, ; it is impossible to devise any written system of government which after a lapse of time, extension of empire, &c. shall be able to carry its own provisions into operation, hence the necessity of implied or resulting powers, ; whence do you get the right to erect custom-houses, but as an implied power, ; want of power to grant an act of incorporation has ever appeared the most unsound and untenable objection, ; the situation of this bank on the expiration of its charter, and the effects on the community consequent upon it, ; the amount of specie in the united states, ; effects which the dissolution of the bank will have on the revenue and fiscal concerns of the country, ; will your money when collected be safe in the state banks? ; irksome to oppose a law which has been in existence twenty years, and acquiesced in by the state and general governments, ; it has been said, that it is the fashion to eulogize the constitution, ; if it could be shown that there had been aberrations by congress from the enumerated powers of the constitution, would it be correct to use those aberrations as precedents? ; the present constitution was adopted as a remedy for the non-compliance of the states with the requisitions under the articles of confederation, ; the present government is in its nature and character a government of enumerated powers, reserving all unenumerated to the state governments, or to the people, ; "to provide for the common defence and general welfare," explained, ; these terms contain no grant of power whatever, but are used to express the ends or objects for which particular grants of power were given, ; instances of aberrations from the enumerated powers examined, ; erection of light-houses, ; custom-houses, ; these two powers indispensably connected with and subservient to particular enumerated powers, ; light-houses among the common, necessary, and proper means, for the regulation of commerce, ; is the incorporation of a bank of this character? ; the defying manner of the arguments advanced in favor of the renewal of the charter, has occasioned this debate, in order to avert the passage of an unjustifiable law, ; it is said that this has been made a party question, although the first law passed prior to the formation of parties, ; explanation, ; the pointed difference which has been made between the opinions and instructions of state legislatures, and the opinions and details of deputations from philadelphia, ; the new and unconstitutional veto which this bill establishes, ; the vagrant power to erect a bank after having wandered throughout the whole constitution, has been located on that provision which authorizes congress to lay and collect taxes, ; suppose the constitution had been silent as to an individual department of this government, could you under the power to lay and collect taxes, establish a judiciary? ; what is a corporation such as the bill contemplates? ; the states have the exclusive power to regulate contracts, ; what participation has this bank in the collection of the revenue? ; the operations of the treasury department may be as well conducted without a bank as with one, ; the management of the landed system, ; it is said the construction given to the constitution has been acquiesced in by all parties, ; when gentlemen attempt to carry this measure on the ground of acquiescence, do they forget that we are not in westminster hall? ; the doctrine of precedents applied to the legislature, is fraught with the most mischievous consequences, ; not empowered by the constitution, nor bound by any practice under it to renew the charter to this bank, ; all power may perhaps be resolved into that of the purse, by whom is it wielded? ; the duke of northumberland is said to be the most considerable stockholder in the bank, ; the principle here involved is most important; it is no less than whether we shall surrender to the state governments the power of collecting our revenue, and rely upon the old system of requisitions, ; the bank has answered the most sanguine expectations of its authors, ; we are required to discard the lessons of experience, to try some new scheme, ; we are to ruin many innocent and unoffending individuals, and derange the finances, and for what? ; it is a contest between a few importing states, and the people of the united states, ; it is a contest between the friends and enemies of the federal constitution revived, ; if we yield to the states the collection of our revenue, what will remain of our federal government? ; it will be a political fiction, ; hostility to the union would prompt to join the hue and cry against this institution, ; it is said that debate is useless on this question, ; to form a correct opinion we must retrospect the defects of the old government, and ascertain the remedy which was anticipated in the present constitution, ; the great cause of the inefficiency of the former was owing to its dependence on the states for the means to carry its powers into effect, ; the present constitution was framed with ample authority to pass all laws necessary and proper for the attainment of its objects, ; erroneous impressions have arisen from ignorance of facts relative to the practical fiscal operations of the government, ; the power to create a bank is not derived by implication, ; the convention granted to the new government in express and unequivocal language, ample authority to use all the means necessary and proper for the attainment of the ends for which it was instituted, ; the question of constitutionality depends upon facts dehors the instrument, ; if it be a fact that a bank is necessary and proper to effectuate the legitimate powers of government, then our power is express, and we need not resort to implication, ; endeavor to prove this to be a fact, ; the erection of a bank by the congress of , ; the opinion of general hamilton, ; character of the congress of stated, ; authority of washington, ; the cry is, "down with the bank, huzzah for the party!" ; sound interpretation of the words "necessary and proper," ; those opposed to the bill, predicate their arguments upon the probability that the state banks will answer, this is an admission of the necessity, ; congeniality between a bank and the collection of our revenue, ; the repeated sanctions the bank has received from different administrations is strangely accounted for, ; whence was derived a power to pass a law, laying an embargo without limitation, ; twelfth article of the amendments to the constitution considered, ; it is not pretended that our fiscal concerns could be managed with gold and silver, ; if the bank is removed, the secretary of the treasury must nationalize the bank paper of the great importing states, ; charges of british influence, ; the embarrassments at philadelphia, it is said, could not have been occasioned by the bank, ; kentucky, i am only thine, ; former course of proceeding in regard to the principle of a bill and its details, ; the course of the press on this subject, ; it is said, that this question is discussed on party grounds, ; a view of the beginning and operations of the bank, ; no democrat has been admitted as a director of this institution, except in new york, ; petty mischievous intrigue for carrying measures through congress, ; for what do merchants form a part of the bank deputies? ; what did mechanics here say relative to granting this charter? ; there is scarcely an evil which has not been attributed to the embargo, and which is not now with as little justice attributed to the non-renewal of the charter of the bank, ; if not renewed, difficult to obtain loans, it is said, ; instructions to senators, their force discussed, ; a state has not a moral right to violate the constitution, and cannot give it to her legislature, nor the legislature to the senator, ; the primary question is, whether the general government when it first came into operation, did not possess the power of creating a national bank, ; to answer this, let us inquire whether there was any possibility of carrying into effect, with any tolerable convenience and advantage, the several provisions of the constitution, unless this power exists, ; it is admitted by all that the agency of a bank affords the greatest facility and security of any plan that can be devised for the collection of a revenue, and its transmission to the treasury, ; other admissions stated, ; the consequence which follows from these admissions, ; if congress once possessed this power, what has taken it away? ; to create this bank is said to be legislation by implication, ; it is said the corporation will be a monopoly, ; anticipated dangers of erecting corporations, ; a violation of the constitution, however solemnly sanctioned or long endured, can never become right, ; difference in the present case, ; recapitulation, ; rule of construction in construing the constitution, when legislating on enumerated powers, ; the authority to grant this charter is found in section seven, clauses first, second, and last, ; meaning of the words "necessary and proper," ; great stress is laid on that amendment which says "all power not expressly granted, shall be retained," &c., ; it is easy to prove that the broad grant given to congress to legislate for the district of columbia, in all cases is restricted and paled in by the constitution, ; this power to charter a bank is expressly granted, ; it is necessary and proper for carrying into effect another general power to borrow money, ; no arguments yet advanced to prove that this power is an original and substantive, and not a derivative or implied power, ; to determine if a measure is just and proper, we must consider whether it has a just or useful relation to the end, ; of all depositories banks are the safest, ; it is asked, why not confine the duty of the bank to collecting the public revenue? ; congress are to devise means most sure and expeditious to borrow money, ; the safety and facility of commercial operations are greatly promoted by a general currency, ; it is said washington doubted, ; objections offered by mr. jefferson, ; remarks of hamilton, ; consequences of destroying the bank, ; distresses which will follow, ; answer to objections, , ; the prompt and secure collection of our revenue is principally owing to the influence of the bank, ; other objections examined, ; objections to the construction of different clauses of the constitution examined, ; it is said the history of the states will show that the bills of credit specified in the constitution, were those only which were a legal tender in the payment of debts, ; further debate, ; vote a tie, ; remarks of the vice president, ; gives the casting vote against striking out the first section, . _in the house._--bill to renew the charter of the bank of the united states considered, ; moved to strike out the first section, ; motion intended to test the principle of the bill, ; congress possesses no power to incorporate a bank, ; even if possessed, it is inexpedient to exercise it, ; ruin to the merchants and embarrassment to the government would not be paramount to sustaining the several obligations of supporting the constitution, ; reason of the construction given by various persons, ; this is in its nature obnoxious alarming in its tendency, and its influence irresistible, ; parts of the constitution which bear any analogy to this subject stated, ; does the establishment of a bank come within their meaning? ; it must be shown that the bank is necessary to the operations of the government, that without its aid our fiscal concerns cannot be managed, ; two things necessary to insure the stability of the government--avoid every measure that will produce uneasiness among the states or that will extend the jurisdiction of the government to subjects purely local, ; has not the bank produced serious alarm? ; the abuse of the convenience of obtaining loans is more dreaded than any other evil which will follow this measure, ; this is the most important subject upon which this congress will be required to act, ; connection subsisting between the agricultural and commercial interests, ; enlightened legislators have entertained but one opinion on this subject both in this country and europe, ; utility of bonds cannot be doubted, ; prosperity of the country attributed to this active capital which has excited industry, ; accommodations furnished by the bank, ; principal portion of the trade and business of the union has been conducted on a paper medium, ; put down this bank and how are your revenues to be collected, ; this is not the time or place to inquire whether banks are beneficial or not to the nation, ; the section admitting of an increase of the capital stock a very dangerous feature, ; the articles of confederation and the present constitution do not differ as regards any power delegated by the states to congress, ; interpretation of the constitution, ; experience shows that the decisions of congress vary with the men who compose that body, and cannot be cited as settling a principle, . this bill aims a deadly blow at some of the best principles of the constitution, ; this bill assumes the exercise of legislative powers which belong exclusively to the state governments, ; one of the most serious dangers this government is threatened with, is the tendency to produce collisions between state and federal authorities, ; the great line of demarcation between the powers of the two is well understood, ; axioms laid down in discussing constitutional questions, ; sufficient to call upon the advocates of a bank to show its constitutionality, ; argument of hamilton, ; the federal government is said to be sovereign with regard to all the objects for which that government was instituted, ; this is a petitio principii, ; it is said, the bank is an innocent institution, ; one of its most obvious and distinguished characteristics is that it exempts the private property and persons of the stockholders, ; it authorizes the stockholders to take usurious interest, ; this bank incorporation possesses other qualities at war with the laws of the several states, ; it is contended that the right to incorporate a bank is delegated to congress, and five or six different provisions of the constitution are referred to as giving this right, ; the very circumstance of so many different heads of authority is conclusive evidence that it has no very direct relation to any of them, ; the "sweeping clause," ; hamilton's mode of reasoning, ; it is contended that the right to incorporate a bank is included in the power to lay and collect taxes, ; no man ought to complain of the weakness of a government whose powers may be _reasoned up_ by logic like this, ; the constitution is not a mere designation of ends for which the government was established, leaving to congress a discretion as to the means, ; it is contended that the right to incorporate a bank is implied in the power to regulate trade between the states, ; it is said to be included in the power to borrow money, ; absurdities into which this doctrine of implication leads, ; it is said to be necessary to the regular and successful administration of the finances, ; one or more state banks in almost every state, ; it is said, if the bank would be constitutional without the existence of the state banks, it would be equally so with, ; question to strike out the first section carried, ; _note_, ; passage of the bill in the house, ; _note_, . _see index_, vols. , , . _bankrupt act._--_see index_, vol. . bard, david, representative from pennsylvania, , , , , , . _see index_, vols. , . barker, joseph, representative from massachusetts, . barry, william t., representative from kentucky, ; on the admission of the territory of orleans as a state, . bartlett, josiah, representative from new hampshire, . bassett, burwell, representative from virginia, , , , , , ; on the number of seamen in the naval service, ; urges reform in the expense of the navy, ; on reduction in the navy, , ; on the claim of matthew lyon, ; on encouragement of privateers, ; on prize money to the officers and crew of the constitution, ; on the imprisonment of american seamen, , ; in favor of a naval establishment, ; on encouragement to privateer captures, ; on privateer pensions, . _see index_, vol. . _batture at new orleans._--in senate, memorial of edward livingston, presented and referred, . _in the house._--resolution to refer the subject of title to the attorney general for him to collect testimony, &c., ; the true course is to give the parties the right of appeal from the orleans court to supreme court of the united states, ; important law points involved, ; the batture claimed is in the bed of the river, ; what could the attorney general do in the case? ; what influence was his opinion to have? ; impossible to see how an individual having property, in which he was put in possession in , by a judicial decision, could be dispossessed of it in , ; this batture never was claimed as private property until after it came into possession of the united states, ; nothing new to refer a subject to the head of a department, ; a constitutional difficulty in the case, ; has congress the power to decide the validity of this claim? ; has congress a right in order to determine the title to landed property, to refer it to any tribunal whatever? ; admitting all this to be true, it does not apply to the present case, ; the question is whether it is public property or not, ; question examined on the ground of the right of the citizen, ; if a citizen is put in possession of property by a decree of a court, and afterwards dispossessed by military power, where should he come if not to this house to claim redress? ; this claim should never be confounded with the yazoo claim, ; the doctrine _nullum tempus occurrit reipublicæ_, is a dangerous one, ; the present case stated, ; is there a precedent for this transaction? ; the president has not carried the law into effect, ; the act of contains two clauses bearing on the subject, ; if there has been any violation of right, it was in the passage of the law under which the president acted, ; resolutions offered in the house, ; laid on the table, ; bill to provide means to ascertain the title considered, ; various amendments considered, . bayard, james a., senator from delaware, , , , , , ; reports to senate a bill for a national bank, ; moves an amendment to the bill to enable the president to take possession of the country east of the perdido, ; against the declaration of war, . _see index_, vols. , . baylies, william, representative from massachusetts, . bibb, george m., senator from kentucky, , . bibb, william w., representative from georgia, , , , , , ; on the ordinance of , ; on the ordinance of , ; on the bill relative to batture at new orleans, ; on the admission of the territory of orleans as a state, , ; on indian affairs, ; on the british intrigues, , ; against the renewal of whitney's patent right, ; on war taxes, . _see index_, vol. . bidwell, barnabas, ; _note_, . _see index_, vol. . bigelow, abijah, representative from massachusetts, , , ; against the admission of mississippi, ; on commercial intercourse with france and great britain, ; on imposing additional duties, . _bill to prevent abuse_ of privileges enjoyed by foreign ministers, . blackledge, william, representative from north carolina, , , . _see index_, vol. . blaisdell, daniel, representative from new hampshire, , , ; against the admission of mississippi, ; on commercial intercourse with france and great britain, . blake, john, jr., representative from new york, . _see index_, vol. . _blank ballots, shall they be counted?_--in the house on election for speaker two blank ballots were cast, shall they be counted? ; blank pieces of paper cannot be considered as votes, ; instance, the election for president in , ; is there to be a speaker without an election? ; the committee report that no candidate has a majority, ; the speaker may become president and preside over the destinies of the nation, ; no analogy with the presidential election, ; establish such a precedent, and it may put an end to this government, founded on the principle that the majority shall govern, ; motion for a new ballot carried, . bleecker, harmanus, representative from new york, , ; on imposing additional duties, ; against the embargo bill, ; on the objects of the war, . blount, thomas, representative from north carolina, , ; on a quartermaster's department, . _see index_, vols. , , . boone, daniel, petition of, . boyd, adam, representative from new jersey, , , , , , ; on the batture at new orleans, ; supports petition of elizabeth hamilton, ; on the reduction of the navy, ; on foreign relations, ; on the bill laying an embargo, , ; on an additional military force, . _see index_, vol. . boyle, john, representative from kentucky, . _see index_, vol. . bradley, stephen r., senator from vermont, , , , , , ; appointed president _pro tem._ of the senate, ; on a recess of congress, . _see index_, vols. , , . _breach of privilege._--report of committee relative to the letter of i. a. coles, . _see index_, vol. . breckenridge, james, representative from virginia, , , , , . brent, richard, senator from virginia, , , , , , ; on a bank of the united states, . _bribery._--_see index_, vol. . _brigadier generals additional._--in the house the bill to authorize the president to appoint additional brigadier generals considered, ; if these officers are intended to command the militia the bill should not pass, ; governors of states better acquainted with qualifications of the militia officers than the president, ; what spirit can be in the people to submit to this? ; no necessity of more generals for the regulars, ; if this bill passes our government will be as bad as that of great britain before the revolution, . brigham, elijah, representative from massachusetts, , ; on rules and orders of the house, ; on imposing additional duties, ; on an additional military force, . _british intrigues._--message from the president to congress, with certain documents, showing that through the british minister a secret agent was employed in certain of the states, fomenting disaffection to the authorities, and in intrigues to the disaffected, ; letter of mr. henry to mr. monroe, with the documents, ; letter of the secretary of the governor of the british provinces to mr. henry, employing him as a secret agent, ; letter of general instructions to henry by is employer, ; credential of henry, ; answer to the secretary accepting the employment, ; answer to the letter of instructions, ; letters of henry to the governor general, from burlington, windsor, amherst, and boston and montreal, ; letter of mr. henry to mr. peel, with a memorial to lord liverpool, for compensation for services rendered, ; letter of mr. peel, containing the answer to the memorial, ; report of secretary of state, relative to persons connected with henry, . motion to print, ; protest against attributing the sentiments expressed in these letters as belonging to the federalists, to citizens of connecticut, ; no confidence in the statements, ; a full investigation ought to be had, ; the papers are honorable testimony in favor of the eastern section of the union, ; what is the fact, ; serious consideration should be given before such gross abuse of any section is published, ; papers calculated merely to put the people on their guard against emissaries, ; they show the deep hostility of this foreign power to our government, ; british ministers have at some periods of their lives been employed on such business, ; extracts from letters of mr. erskine, ; a division of the union is not a new subject, ; these documents will exhibit to the american people what sort of a nation we have to deal with, ; is the information useful to us, ; the subject should be followed up with a full and prompt examination, ; no difference of opinion in supporting the integrity of the union, ; motion to print agreed to, ; mr. henry has done service to this country by this communication, and ought to be protected, ; question referred to the committee on foreign relations, with authority to send for persons and papers, ; letter from the british minister disclaiming all knowledge of john henry's asserted mission, ; report from the committee on foreign relations relative to these disclosures, ; _note_, . _british minister, conduct of_, in the senate, resolutions relative to, reported, ; bill relating to privileges of foreign ministers also reported, ; resolutions approving the conduct of the executive, in refusing to hold any further communication with mr. jackson, considered, ; peculiarities of our government, ; the refusal of the executive may lead to war, yet congress alone has power to declare war, ; congress should express its opinion on the act of the executive, ; this is due to the people, ; it is due to the executive, ; will the president have the co-operation of congress? ; it is of national importance that the will of congress should be expressed, ; would the conduct of great britain be very different under these different conditions of the people and the government, ; did any people ever gain any thing by dissensions? ; never wrong to join the standard of your country in a war with foreign nations, ; are the facts stated in the resolution supported by the correspondence? ; letter of mr. jackson, ; what does it amount to? ; the insult is gross and outrageous, ; other expressions examined, , ; canning's course, ; if the facts are justified by the correspondence, what can prevent unanimity on the present occasion? ; ordered to third reading, ; passed, . _in the house._--an important paper headed "circular," has not been communicated to congress, ; resolution, calling on the president for a copy, ; despatch of mr. canning also called for, ; improper to call upon the president for that which cannot be officially in his possession, ; a copy in secretary's office, ; motion carried, ; other papers called for, ; "circular" of mr. jackson, . the first question involves the veracity and dignity of the american government, and the reputation of a british envoy, and in some degree the british ministry, ; origin of the mission from great britain to the united states, ; what were the circumstances which characterized its progress and termination? ; if such were the circumstances, does not the occasion require that the american government take a firm and decided stand? ; the present is no time for causeless crimination of our government, ; the terms offered to us are not honorable and reciprocal, ; the resolution is rendered peculiarly important by the occasion, ; there is more than a presumption that mr. erskine had the power to enter into the arrangement he made, ; what did the president know of his powers? ; did he know that mr. erskine had not full power? ; it was not his duty to know that he had not full powers? . motion to postpone indefinitely the resolution approving the conduct of the executive relative to the british minister, considered, ; the resolution unnecessary and pernicious, ; it descends to a style of expression unworthy of the country and the dignity of its government, ; it looks toward war, ; a resolution of approbation against all example for the last eight years, ; some doubts whether the majority were the same party as in former years, ; the right of approbation implies the right of disapprobation, ; it is proposed that this solemn assembly, representing the american people, shall descend from its dignity to utter against an individual the language of indignation and reproach, ; this is to be done under pretence of asserting their rights and vindicating their wrongs, ; it is no slight responsibility which this house is about to assume, ; all the other questions agitated in this debate dwindle into insignificance, ; no speaker yet has taken the precise terms of the resolution as the basis of his argument, ; the resolution analyzed, ; it asserts that a certain idea is conveyed which is indecorous and insolent, ; what is this idea? ; what are the expressions in which it is conveyed? ; parts of the letter examined in which the idea is conveyed, ; a corroborative view of the subject, ; recapitulation, ; the resolution merely respects the conduct of the british envoy, ; it is not an answer to a message from the president of the united states, ; it is not a declaration of war, ; the correspondence between the british minister and the american secretary examined, ; the whole civilized world a spectator of this discussion, ; resolution ordered to be read a third time, ; authorities to show the competency of mr. erskine's powers, ; erskine never entertained a doubt of the competency of his powers, ; extracts from his letters, ; the british government could not disavow the acts of its minister without incurring the charge of bad faith, ; past transactions reconsidered, ; this measure will fix a stain on the american character and hazard the peace and prosperity of the country, ; fate of every country to cherish demagogues, ; the letters of jackson do not contain the insult imputed to them, ; the insult examined, ; what were the circumstances upon which the king justified his disavowal? ; the want of authority in mr. erskine assigned as the sole ground, ; letters further examined, ; the insult explained away, ; resolution passed, . brown, james, senator from louisiana, . brown, john, representative from maryland, , . brown, obadiah, elected chaplain of the house, . brown, robert, representative from pennsylvania, , , , , , . _see index_, vols. , . burwell, william a., representative from virginia, , , , , , ; on an extra session, ; on permitting swedish and portuguese vessels to load, ; on the petition for a division of the mississippi territory, ; on the batture at new orleans, ; on non-intercourse with great britain and france, ; on trade to the baltic, ; opposes the postponement of the resolution relative to the apportionment of representation, ; on the bank of the united states, ; on privateer pensions, . _see index_, vol. . butler, william, representative from south carolina, ; makes a report on the conduct of general wilkinson, . _see index_, vol. . c calhoun, john c., representative from south carolina, , ; on foreign relations, ; on the case of nathaniel rounsavell, ; on mode of relief of caraccas, ; makes a report on foreign relations, ; presents a bill declaring war against great britain, ; on an additional military force, . calhoun, joseph, representative from south carolina, , , , . _see index_, vol. . campbell, alexander, senator from ohio, , , , . campbell, george w., representative from tennessee, ; on submission to the late dictate england and france, ; against amendments of the senate requiring an immediate arming, &c., of public vessels, ; on an extra session, ; senator from tennessee, , ; on a recess of congress, . _see index_, vol. . campbell, john, representative from maryland, , , , . _see index_, vols. and . carr, francis, representative from massachusetts, . _caraccas, relief of._--in the house, resolution to authorize the president to procure and send flour for the inhabitants of caraccas, ; better to suspend the restrictive system as to them, ; why should party feelings enter into this proposition? ; the amendment proposed would virtually repeal the embargo, ; no necessity to suspend the embargo, ; other amendments offered, ; resolution passed, ; $ , voted, . _census of the union._--_see index_, vol. . chamberlain, john c., representative from new hampshire, , , . chamberlin, william, representative from vermont, , , . _see index_, vol. . champion, epaphroditus, representative from connecticut, , , , , , . _see index_, vol. . champlin, christopher, senator from rhode island, , . _see index_, vol. . chauncey, isaac, letters to the secretary of the navy, , . cheves, langdon, representative from south carolina, , ; in favor of a naval establishment, ; on an additional military force, ; on encouragement to privateer captures, ; reports a bill to authorize the issue of treasury notes, ; on war taxes, . chittenden, martin, representative from vermont, , , , , , . _see index_, vol. . clarkson's history of slavery presented to congress, . clay henry, senator from kentucky, , ; on the bill relative to non-intercourse with france and great britain, ; presents petition of elisha winters for reward, for causing the death of the mississippi river pirate, ; gives notice of asking leave to bring in a bill supplementary to the act relative to the punishment of certain crimes, ; on the occupation of florida, ; on incorporating a bank of the united states, ; reports against extending the charter of the old bank, ; reports a bill to enable the president to take possession of the country east of the perdido, ; representative from kentucky, , ; elected speaker, first session, th congress, ; address, ; on the statutes of limitation, ; on a naval establishment, ; offers an amendment to the bill to enable the people of mississippi to form a state government, ; on the limits of louisiana, ; in favor of the bill laying an embargo, ; on an additional military force, ; against encouragement to privateer captures, ; acknowledges vote of thanks of the house, . _see index_, vol. . clay, matthew, representative from virginia, , , , , , ; on an additional military force, . _see index_, vols. , . clinton, dewitt, voted for as president, in , . clinton, george, vice president, presides in the senate, , ; elected vice president in , ; number of votes for, as president, ; as vice president, ; as vice president gives casting vote in senate against u. states' bank, ; takes seat in senate as vice president, ; decease of, . _see index_, vols. , , . clopton, john, representative from virginia, , , , ; on non-intercourse with great britain and france, . _see index_, vols. , , . cobb, howell, representative from georgia, , , , . _see index_, vol. . cochran, james, representative from north carolina, , , , , . coles, isaac a., letter to the speaker of the house, . _see index_, vol. , . _cod-fisheries._--_see index_, vol. . _commerce of the united states._--_see index_, vol. . _committees, select_, resolution relative to formation of, ; members of, in house, . _compensation of president and vice president._--_see index_, vols. , . condict, john, senator from new jersey, , , , , . _see index_, vols. , . condit, lewis, representative from new jersey, , . _congress_, second session of tenth, ; meeting of the two houses to count electoral votes, ; adjournment of second session of tenth, ; first session of eleventh, ; third session of eleventh congress, ; third session of eleventh congress adjourned, ; adjournment of third session of eleventh congress, ; commencement of first session of twelfth congress, ; second session of twelfth meets, . _extra session._--_in house_, motion to alter the time of the next meeting of congress, ; moved to strike out may, for the purpose of inserting september, ; this is a momentous crisis, ; country in a situation of extreme danger, ; congress should be constantly in session till a more favorable state of affairs exists, ; nothing likely to occur to do away with the necessity of an extra session, ; why should congress come here at the time proposed? ; a new president comes in, who will desire communication with our ministers before the meeting of congress, ; occurrences are presenting themselves every day, requiring some other ground to be taken, ; a total abandonment of the ocean will be submission, ; are we to renew negotiation, when every circumstance manifests that it would be useless? ; the present suspension of commerce and discontents at home, are sufficient reasons for calling congress earlier than december, ; new administration should meet congress as early as possible, ; war the only means to secure the interest and honor of the nation, ; reasons that congress should meet in may, ; is the nation to be saved by long speeches? ; forty-eight hours sufficient to pass all laws for the present crisis, ; an early session will contribute to tranquillize the minds of the people, ; if peace is attainable, we must have it; if not, then war, ; necessary to change our situation previous to next meeting of congress, ; reason of the fear in great britain that parliament would not meet often enough, ; congress do more good by staying away, ; leave an extra session to the executive, ; motion to strike out lost, ; bill passed, . _in the senate_, resolution offered for a recess from the th of april, ; ordered to be engrossed, ; moved to fill the blank with " th monday in june," ; sufficiently early to take measures in consequence of the expiration of the embargo, ; a long time would accommodate better than a short time, ; effect on the public mind the same, ; the question should not be decided on the mere ground of personal convenience, ; an adjournment for any length of time, like deserting our posts, ; not deserting our posts, ; by staying here, congress cannot expedite the measures ordered, ; eighth of june adopted, ; resolution passed, . _connecticut_, vote for president, in , ; in , , . _see index_, vols. , , . _constitution and guerriere_, letter from the secretary of the navy, on the action between, ; bill to compensate the officers and crew of constitution frigate, ; considered, , ; bill to compensate officers and crew of, considered, , . _contested elections._--_see index_, vols. , . _convoy system._--in the house, bill reported to employ public armed vessels to convoy the lawful commerce of the united states, ; moved to discharge the committee of the whole, ; embraces two important principles not to be discussed in committee, ; motion lost, . cook, orchard, representative from massachusetts, , , ; in favor of an immediate arming of the public vessels, , ; on additional duties on english and french goods, . _see index_, vol. . cooke, thomas b., representative from new york, , . cox, james, representative from new jersey, , . craig, sir j. h., his instructions to john henry, . crawford, william, representative from pennsylvania, , , , , . crawford, william h., senator from georgia, , , , , , ; on the repeal of the embargo act, ; on incorporating a bank of the united states, , ; on an increase of the navy, ; elected president _pro tem._ of the senate, ; presides in the senate as president _pro tem._, . _see index_, vol. . crist, henry, representative from kentucky, , . canning, mr., extract from speech of, in parliament, . _cuba_, emigrants from.--in senate, resolution relative to, offered, ; referred, ; further resolution, . _in the house._--bill relative to the remission of certain penalties considered, ; the bill, ; opinion of court of south carolina, ; the former act on the importation of slaves, ; present case directly violates that law, ; what reason for enacting this law, if the principles of the law of were correct? ; this is a case of a peculiar nature, attended with singular circumstances, ; the laws of south carolina forbid bringing those persons into the state, ; the persons bringing them, must give security to have them carried out, which could not be done under the non-intercourse law, ; slaves brought to new orleans, ; the objects of this bill do not appear on the face of it, ; bill passed, . culpeper, john, representative from north carolina, . _see index_, vol. . _cumberland road_, report on, . _see index_, vol. . cushing, t. h., adjutant-general, letter of, . cutts, charles, senator from new hampshire, , , . cutts, richard, representative from massachusetts, , , , , ; moves to strike out "seventy-fours," and insert "frigates," . _see index_, vols. , . d dana, samuel w., representative from connecticut, , , ; on necessity of additional revenue cutters, ; on the immediate arming of the public vessels, ; on a vote of approbation of the conduct of the executive, ; on prosecutions for libel, ; on amendment to, ; on non-intercourse with great britain and france, , ; on an investigation of the navigation laws, ; on the call on the president for papers, ; on the torpedo experiment, , ; on the loan bill, ; on reform in the expense of the navy, ; on reduction of the navy, ; senator from connecticut, , , . _see index_, vols. , . davenport, john, jr., representative from connecticut, , , , , , ; on the proceedings on counting the electoral votes, . _see index_, vols. , . daviess, joseph hamilton, _note_, . davis, roger, representative from pennsylvania, , . dawson, john, representative from virginia, , , , , , ; moves to refer the letter of robert fulton, ; reports on, ; supports petition of elizabeth hamilton, ; on the ratio of representation, ; on foreign relations, ; on the burning of richmond theatre, ; on the petition of ursuline nuns at new orleans, ; on the limits of louisiana, ; offers a resolution of honor to officers and seamen of the constitution, for the capture of the guerriere, ; on compensation to the officers and crew of the frigate constitution, . _see index_, vols. , . deane, josiah, representative from massachusetts, . _see index_, vol. . _debates, reporting of._--_see index_, vol. . decatur, stephen, his letter to the secretary of the navy . _defensive measures against great britain, under john adams._--_see index_, vol. . _delaware_, vote for president, in , ; in , , . _see index_, vols. , , . _delegates from territories._--_see index_, vol. . desha, joseph, representative from kentucky, , , , , , ; on submission to the late edicts of england and france, ; on foreign relations, ; on an additional military force, . _see index_, vol. . dinsmoor, samuel, representative from new hampshire, , . _diplomatic intercourse._--_see index_, vol. . _divorces_ in the district of columbia, report on, . _see index_, vol. . dunn, thomas, elected doorkeeper of the house, ; elected sergeant-at-arms to the house, . durell, daniel m., representative from new hampshire, ; in favor of immediate arming of the public vessels, ; on an extra session, . _see index_, vol. . _duties on imports._--in senate, bill for imposing additional duties read the third time, ; motion to postpone to a distant day, ; the subject is a commercial one exceedingly important, ; the bill can be advocated only upon the ground that a war is about to ensue, and to prepare the public treasury to sustain its prosecution, ; but neither the one nor the other is expected or necessary, ; gallatin's reports, ; the measure will also be both unequal and unjust, ; the new duty will operate as a bounty to forestalled and speculators, ; bill passed, . _in the house._--the bill to impose additional duties considered, ; motion to confine increased duties to goods of england and france, ; motion lost, bill ordered to be engrossed, . _manufactures, domestic._--in the house, resolution to lay an additional duty on coarse hemp and flax considered, ; cotton added, ; the proposition should include all the domestic manufactures of the country, ; the present a favorable time to adopt some measures to encourage and support domestic manufactures, ; merely a proposition to instruct a committee, ; laid on the table, ; taken up, ; amendment laying a duty on salt moved, ; irregular manner of proceeding, ; further debate on the practice of the house, ; ill-timed to tax an article when it may be very difficult to procure it, ; why this great cry about domestic manufactures? ; what will be the effect of taxing salt, . _in the house._--engrossed bill laying additional duties, ; the creation of a public debt ought to be accompanied with the means of its extinguishment, ; this is the true secret of rendering public credit immortal, ; it is surprising to learn that doubling the duties is the only means to be provided for this purpose, ; this will be a most unpopular tax, ; it is an unjust measure, ; what will be the consequence of passing the bill? ; great changes have taken place since the adoption of the present tariff, ; three purposes intended to be furthered by duties on imported merchandise, ; the objections to the bill are palpable and obvious, ; its tendency to promote smuggling, ; the unfortunate policy adopted in has destroyed the purity and elevation of commercial morals, ; a reliance on the impost as the means of supporting the war in connection with an abandonment of the internal taxes, teaches that our government is unfit for the purpose of foreign and offensive war, ; the protection and regulation of commerce has become a prime object of legislation, ; it is the cause of war, ; this increase of impost is a tax which will operate unjustly and unequally, ; burden on the people of the eastern states, ; desirable to recommit the bill in order to learn the sentiments of the house on the repeal or the partial suspension of the present non-importation act, ; if this act was suspended and we had a trading and not a fighting war, we should have sufficient revenue under the present rates of duties, ; letter of the secretary of the treasury on the subject of revenue examined, ; a very left-handed way of encouraging the manufactures of this country, ; motion to strike out the words "one hundred" before per centum lost, . _see index_, vols. , , . _duties on tonnage._--_see index_, vol. . e earle, elias, representative from south carolina, , . _electoral votes for president_, examination and counting of, . _opening and counting._--in house, resolution offered to notify the senate, ; it is now proposed that the senate come to the house, and that the speaker leave the chair to make room for the president of another body, ; such a proceeding would derogate from the dignity if not the rights of this body, ; a respect we owe ourselves and the people never to suffer the privileges of this house to be diminished, ; in counting the votes the house of representatives is not assembled as a distinct body, ; propriety in this course because by the constitution the vice president is to open the votes, ; moved that when the senate was introduced the speaker relinquish the chair to him, ; propriety of the president of the senate presiding at a joint meeting, ; as regards the privileges of the house against the claims of the other, the ninth part of a hair was important, ; the english commons obtained their privileges inch by inch, ; if he comes to this house, the president of the senate comes by courtesy, and can assume the chair only as a matter of favor, ; the constitution prescribes the powers of each body, and no fear of encroachment, ; motion carried, ; votes counted, ; counting of, , . _see index_, vols. , , . _electors of president._--_see index_, vol. . elliot, james, representative from vermont, . _see index_, vol. . elliot, jesse d., letters to the secretary of the navy, , . ely, william, representative from massachusetts, , , , , , ; on arming and classing of the militia, . _see index_, vol. . _embargo._--in senate resolution to repeal the act laying an embargo offered, ; light in which it has been viewed by france, ; not a measure of hostility or coercion as applied to her, ; little effect on england, ; could america expect to starve her? ; it was a farce, ; ample time had been given for her to make other arrangements, ; what accounts have we from there? ; they can actually purchase provisions cheaper now from other places than they formerly had done from us, ; turn to another article of trade, cotton, ; it has been said a want of this article would distress the british manufacturers and produce clamor among them, and hence accelerate the repeal of the orders in council, ; are not all the evil consequences anticipated from the embargo likely to be realized? ; great britain become the carriers of the world, these carriers will supply themselves, ; get supplies of cotton elsewhere, ; this embargo instead of operating on those nations which had been violating our rights, was fraught with evils and privations to the people of the united states, ; it should be abandoned as a measure wholly inefficient for the objects designed, ; some thought its efficiency would be secured by adding a non-intercourse law, ; this idea futile, ; the united states are consumers of british products, ; what had patriotism really done? ; non-intercourse law cannot be executed, ; party spirit should now have been laid aside, and all consulted for the common good, ; if the spirit of commercial speculation has overcome all patriotism, it is time foreign intercourse should cease, ; the proposition for repeal hardly merits respect or serious consideration, ; a most important subject, deeply implicating, and perhaps determining the fate of the commerce and navigation of this country, ; our commerce has unquestionably been subject to great embarrassment, vexation, and plunder from the belligerents of europe, ; both france and england have violated the laws of nations, ; the one professes to relent at the inconvenience she occasions you, and the other in addition to depredation and conflagration, treats you with the greatest disdain, ; their conduct gave rise to the embargo, ; if it has been proved by experience to be inoperative so far as regards them, and destructive as respects ourselves, it should be repealed, ; the propriety of this is now the question, ; three points naturally to be considered, ; the security which it gave to our navigation, and the protection it offered our seamen, its effects on france and great britain in coercing them to adopt a more just and honorable policy towards us, the effects it has and may produce on ourselves, ; it has already answered all that can be expected in regard to security to navigation and seamen, ; its longer continuance will counteract these objects, ; its operation is nugatory on france, ; its operation on great britain, ; the subject should be taken up with coolness, ; it is charged that there is a disposition to break down commerce, for the purpose of erecting manufactures on its ruins, ; the charge a mere electioneering trick, ; the ground is taken that the embargo has prevented all our commerce, ; this is not shown, ; operation of the decrees of france, ; operation of the orders in council, ; a tribute required for license to trade, ; has the embargo been productive of the consequences expected to result from it, ; it has not had a fair trial in consequence of misrepresentations, ; has the embargo operated more upon the united states than on the european powers, ; one object of the resolution doubtless to obtain information of the operation of the embargo throughout the union, ; the sentiments of the people of georgia on the subject, ; effects of the measure on ourselves, ; the produce of the lands of georgia lies on hand, ; it is said that great britain will find some source whence to obtain the supplies she has heretofore got from us, ; the cotton interest is willing to run the risk of the continuance of the embargo, ; it is said this measure cannot be executed, ; it has been so far executed as to produce a good effect, ; the charge of an intention to destroy commerce examined, ; a disposition to make this measure permanent, ; this measure intended and calculated to promote the interests of france, ; no danger from war, it is said, except through a repeal of the embargo, ; statements in relation to the present views of england favorable to the embargo are not entitled to credit, ; cause of the change in mr. canning's language, ; the essex resolutions, ; how are these orders and decrees to be opposed but by war, except we keep without their reach, ; attempts to ridicule the measure exposed, ; it is said that if the embargo is repealed we can carry on a safe and secure trade to the extent of nearly four-fifths the amount of our domestic productions, ; this statement examined, ; if the embargo had not been laid, would the british aggressions have stopped with the orders in council, ; if the embargo is repealed, and our vessels suffered to go out, it will expose us to new insults and aggressions, ; it is said that a perseverance in a measure opposed to the interests and feelings of the people may lead to opposition and insurrection, ; this is an argument _in terrorem_, ; more information needed on this subject, ; better if the proposition had expressed indignation at the injuries our government had received, ; situation of the european world when congress deemed it necessary to pass the embargo, ; prudence and policy dictated this measure, ; the mission of mr. rose, ; effects of the measure on the country, ; feelings of gentlemen who once possessed the power of the nation, but have now lost it, ; the outrages of the belligerents should have awakened such indignation as to suppress these feelings, until some measures could be devised to meet the crisis, ; the greatest inconvenience perhaps attending popular governments stated, ; two objects contemplated by the embargo, ; the first, precautionary, operating upon ourselves, ; the second, coercive, operating upon the aggressing belligerents, ; the first considered and explained, ; effects of the embargo, ; our fate is in our own hands, with union we have nothing to fear, ; danger of exposing one's self to the charge of being under british influence, ; the patrons of the miscreants who utter these slanders know better, ; the wrongs of great britain to us intended to be removed by the treaty, . _enforcement of the embargo_, bill making further provision for, reported, ; sections of the bill, ; an embargo over a country like ours a phenomenon in the civilized world, ; opinions relative to the embargo, ; course proposed to be pursued, ; this bill bears marks of distrust of the people, entertained by the government; it places the coasting trade under further vexatious restraints, ; particulars in which it is placed under the regulation of the president, ; other sections intrench on the ordinary concerns of the great body of the people, ; the military may be employed by agents under this bill, ; authority of the marshal competent to execute the laws, ; further objections to the bill, ; the bill presents temptations for addressing the popular sensibility too strong to be resisted by gentlemen in the opposition, ; they have presented its provisions in an alarming aspect, ; the bill contains no new principle, every provision is justified by precedents in pre-existing laws, ; it is said the embargo is a permanent measure, and its effects ruinous at home and ineffectual abroad, ; it is said the public councils are pressing on to measures pregnant with most alarming results, ; the great principle of objection, it is said, consists in the transfer of legislative powers to the executive department, ; objections to the provisions of the bill relative to the coasting trade, examined, ; power granted to the president over the military force in previous acts of the legislature, ; passage of the bill, . _in the house._--many resolutions have been submitted on the subject of foreign relations and the embargo, ; surprising to see so many resolutions and none contemplating its continuance, ; where is that spirit which separated us from great britain? ; just as our measure of last year is beginning to operate we are called upon to repeal, ; what is the purport of the proclamation issued by one of the belligerents? ; resolutions offered to exclude vessels of belligerents having force decrees or orders violating the lawful commerce of the united states; also imports from such powers, and also to inquire into the expediency of amending the embargo act, ; it is time for those who think the embargo a lawful and proper measure, to come forward and declare it, ; neither of the powers of europe have shown any disposition to relax, neither should we, ; only three alternatives are open to us--war, embargo, or submission, ; the last out of the question, ; shall it be war or embargo? ; let that be adopted which will best maintain our rights and independence, ; the embargo does not cause the pressure on the people, ; public opinion in the northern part of the union requires the embargo to be raised, ; let the debate go on, ; first and second resolutions agreed to, . _embargo, temporary._--bill for, passed in the senate, ; in the house, message received from the president relative to laying an embargo for sixty days, ; bill reported, read twice, and referred to the committee of the whole, ; moved to strike out sixty, and insert one hundred and twenty days, ; the time will be much too short for the whole amount of american property abroad to return, ; motion lost, ; is this to be considered as a peace or war measure? ; it is understood to be a war measure, and it is intended it shall lead directly to it, ; objections to parts of the bill, ; drafted according to the wishes of the secretary of the treasury, ; if it is a precursor to war what is the situation of our fortresses and of the country generally? ; none can question the propriety of the proposition, ; are we now to cover ourselves with shame and indelible disgrace by retreating from the measures and grounds we have taken? ; the conduct of france may be a subject of future consideration, ; no difficulty or terror in the war except what arises from novelty, ; a source of pride that the executive has recommended this measure, ; this is not a measure of the executive, but is engendered by an intense excitement upon the executive, ; the people of the country will consider it a subterfuge for war, ; at the end of sixty days we shall not have war, because the executive dare not plunge us in war, ; are we prepared to assail the enemy or repel her attacks? ; motion to strike out first section lost, ; the president does not mean war, ; unless great britain relents we must make war, says the president, ; we should not go to war unprepared, ; what occurred in the committee of foreign relations, ; if you mean war, if the spirit of the country is up to it, why have you spent five months in idle debate? ; not possible to commence war with safety within four months, ; warning of the danger and ruin which threaten our defenceless cities and towns, ; the intelligent part of the community are against war, ; bill ordered to be engrossed for a third reading, ; moved to read third time to-morrow, ; policy on the part of the majority should dictate this indulgence, ; the minority has acted with more propriety than was ever known, ; other reason for delay, ; motion lost, ; bill passed, . bill returned to the house with amendments by the senate, ; moved to postpone indefinitely, ; it is a pure, unsophisticated, reinstated embargo, ; the same power which originates can continue this oppressive measure, ; it is not an embargo preparatory to war, but an embargo as a substitute for war, ; this point examined, ; heaven help our merchants from an embargo protection, ; an express was sent off on the day preceding the message, ; is this measure expedient, and can it be executed? ; this house should desist from the dangerous course they are pursuing, ; views of great britain, ; motion to postpone, ; main question ordered, . _see index_, vol. . emott, james, representative from n. y., , , , , ; on miranda's expedition, ; on commercial intercourse, ; presents petition of merchants of new york, ; on an additional military force, . eppes, john w., representative from virginia, , , , ; on the resolution calling on the president for papers, ; on the convoy system, ; on commercial intercourse with france and great britain, . _see index_, vol. . evans, oliver, claim for different applications of steam-power, . _executive departments._--_see index_, vol. . _expatriation._--_see index_, vol. . _expenditure of public money._--in the house, a resolution to appoint a committee to inquire into the expenditure of public money, ; the result of a former inquiry, ; how do pursers in the navy receive their money? ; extract from a letter, ; the abuses should cease, ; resolution agreed to, . _extra session._--bill to alter the time of the meeting of congress considered, . _see congress._ f _federal judges_, amendment of the constitution to secure the removal of, . _see index_, vol. , _amendments of the constitution_. findlay, william, representative from pennsylvania, , , , , , ; on a vote of approbation of the conduct of the executive, ; on foreign relations, . _see index_, vols. , , . fisk, james, representative from vermont, , , , ; on non-intercourse with great britain and france, ; on the torpedo experiment, , ; offers a resolution relative to the apportionment of representation, ; opposes postponement of the resolution relative to the apportionment of representation, ; on the ratio of representation, ; on the bank of the united states, ; against a naval establishment, ; on the pay of the army, ; on amendments to the naturalization law, . fisk, jonathan, representative from new york, , , . _see index_, vol. . fitch, asa, representative from new york, , . _flag of the united states._--_see index_, vol. . _florida, west, occupation of._--in the senate, bill to extend the laws of the territory of orleans over west florida, reported, ; debate on its passage, ; the first important question is whether the united states have a good title to the territory, ; what were the limits of louisiana before the treaty and cession of - between france, spain, and great britain? ; the treaty of cession between the united states and france examined, ; the expediency of taking possession of this territory cannot be doubted, ; other grounds upon which this bill might be supported, entirely independent of the cession, ; state of the spanish colonies in relation to the spanish government, ; this bill may be justified independent of title by the law of self-preservation, ; this bill contains two important provisions, it incorporates with the territory of orleans the province of west florida, and it extends to that province the laws now in force in the territory, ; two questions naturally involved, st, has the united states a good title? d, is it expedient? ; authority of the president to direct a forcible occupation of the territory a preliminary question, ; has not this proclamation transcended the limits of the president's power? ; what is the nature and import of this proclamation? ; it is not only war, but an act of legislation too, ; new power conferred by acts of congress, ; not a shadow of authority exists, ; title examined, ; as founded on the doctrines of estoppel and occupancy, ; title of france, . an instrument thus obtained not obligatory, ; title derived under the treaty of st. ildefonso, ; cause of the war of , ; its results, ; remarks on the evidences and facts relative to title, ; our title indisputable against both france and spain, ; the treachery by which the king of spain is alleged to have lost his crown, ; our title to west florida examined, and the propriety of the recent measures for the occupation of it, ; our title depends on the limits of the province of louisiana, and a just exposition of treaties, ; to determine this, it is only necessary to fix the eastern boundary, ; the province of louisiana comprised west florida previous to , ; what was then done? ; what, then, is the true construction of the treaties of st. ildefonso and of april, ? ; is the proclamation an authorized measure of war and legislation? examined, ; had the president failed to embrace the opportunity he would have been criminally inattentive to the dearest interests of his country, . _floridas, occupation of_, an act to authorize, ; postponed, ; resolution relative to, . _florida, purchase of._--_see index_, vol. . _foreign ministers, abuse of privileges._--_see index_, vol. . _foreign relations._--in house, resolution that the united states cannot, without a sacrifice of their rights, honor, and independence, submit to the late edicts of great britain and france, considered, ; the resolution too clear to need demonstration, ; the committee believed there could be no difference of opinion on the subject of the resolution, although there might be on the mode of resistance, therefore it was presented, ; not necessary to show that the decrees of france and orders of great britain were an assumption of power to give laws to this country in direct violation of our neutral rights, ; the real question is, shall we govern ourselves or be controlled by the will of others? ; upon our offer to remove the embargo if either party would rescind, no heed has been given, ; the proposition now offered unexceptionable, ; the course advocated in the report of the committee is loathsome, ; the resolution offers a solemn pledge to the nation that the present system of public measures shall be totally abandoned, ; adopt it and there is an end of the policy of deserting our rights under the pretence of maintaining them, ; the terms of the resolution contain an assertion and a pledge, ; none need have difficulty in screwing their courage up to the assertion, ; the pledge is a glorious one, ; what is submission and what does the pledge not to submit imply, ; objects of the edicts and orders, ; tenor of publications from the east which are sent here, ; objects of the two powers with regard to us, ; efforts of our minister, ; the chapter of negotiation, ; the conduct of officers of the british navy and the connivance of the british government, ; further aggressions, ; the present an extraordinary crisis, ; examination of the situation of this country in relation to france and great britain, and also the injuries and aggressions they have committed upon our neutral rights, ; injuries of great britain, ; principal injuries committed by france, ; consequences which result from this series of injuries, ; the rude treatment of the report of the committee, ; how did the report originate, ; not one of all the principal positions contained it which is true in the sense and to the extent assumed by the committee, ; the alternatives of submission, war, or embargo considered, ; what is disgraceful submission? ; we can trade not only with one, but with both these belligerents notwithstanding these restrictive decrees, ; the other alternative of war with both is absurd, ; further examination of the report, , ; objections considered, . a silent vote on the proposition would have produced a better effect than this discussion, ; the report seems to consider the system recommended as including a continuance of the embargo, ; the embargo is severely felt by the country at large, ; in some places it requires all the exertions of patriotism to support it, ; members have contended as to which section suffered most, ; it is said that this is a delusion, ; it is thought the country cannot feel much as it feeds well, ; in point of revenue how does it work? ; as a measure of finance it has laid the axe to the root, ; would the constitutional convention have given to congress power to lay an embargo for one or two years, if it had been agitated? ; the character of this measure examined, ; it is said the embargo is evaded, and thus has not been so tightly drawn with regard to great britain, ; the continuance of our measures may divert trade from us to other channels, ; it is said, the honor of the country is at stake, a removal of the embargo would be submission to great britain, ; what is the nature of the rights in question, . the continuance of the embargo as an assertion of our rights is not an efficient mode of resistance, ; if gentlemen were really americans, they would not tamely give up the honor of their country by submitting to french decrees and british orders, ; do they mean that independence should be wrested from us without a struggle? ; what are the reasons why the embargo has not come fully up to the expectations of its supporters? ; yet it has been particularly serviceable in many instances? ; a retrograde step at this time would mark the government with pusillanimity, ; effect of the french decrees, ; results of the british orders, ; the house of representatives only of maryland have passed resolutions against the embargo, ; the militia system caused the change in maryland and not the embargo, ; it is said, the embargo has destroyed the commerce of the country, ; the embargo is a disagreeable thing, but by swallowing it, we shall bring health, ; some states have passed laws for suspending executions, ; the only question is, shall we defend ourselves or shall we submit? ; upon this question, in every point of view too clear to admit of a doubt, a debate has arisen embracing all our foreign relations, ; the offer to suspend the embargo laws for a suspension of the orders in council, has been contemptuously rejected, those orders justified, and an extension of their operation threatened, ; in this crisis every man should do his part, ; the original imposition of the embargo was wise in a precautionary point of view, ; after the operation of the orders in council was known insurance could not have been effected at baltimore to london for guineas per cent., ; mercantile distresses have been exaggerated, ; the embargo has preserved us from bloodshed, ; if the embargo has failed it is no cause of triumph, ; it is asked if we are prepared to violate the public faith, ; will submission pay the public debt? ; it is said the embargo itself is submission, ; it is the opponents of the measure who call it submission, ; who, in the united states, are most anxious to have the embargo repealed? ; ultra-federalists, ; the embargo is the most deadly weapon we can use against great britain, ; what is the nature of her wants, and what her capacity and means of supply? ; there are not contained within the british empire at this time supplies for the home and colonial consumption, ; to remove the embargo will betray a timid, wavering, indecisive policy, ; supplies should be withheld from spain and portugal, as great britain is coerced through them, ; the embargo preserves this nation in peace, while it presses those who injure us, ; it should not be repealed in part, ; give merchants a spot as large as the square of this house to go to, and they would carry away the whole of our surplus produce, ; the orders in council originated in deadly hostility to us, ; south carolina is interested, by the suspension of our trade, in the article of cotton alone, to an amount greater than the whole revenue of the united states, ; objections examined and considered, ; it is said the embargo should be removed because it has operated as a bounty to the british trade, ; constitutionality of the embargo settled, ; it is said if great britain, during the revolution, maintained a war against the world, will she truckle now? ; deposition of sundry english merchants before the house of lords, ; it is said the destruction of st. domingo has caused such a demand for sugar, that the cultivation of cotton in the british west indies has ceased, ; it is disgracefully said that, nations like individuals, should pocket their honor for money, ; why are we called upon to make the declaration of this resolution? ; it is not expedient to adopt the second resolution, ; what will be the effect of the embargo, if continued, as respects ourselves? ; its pressure is on the whole country, and it carries misery throughout the land, ; a better line of conduct for the united states to pursue pointed out, ; will most of our property be taken by the belligerents if the embargo is removed? ; merchants do not consider the risk very great, ; we are not reduced to the dilemma of making choice out of any of the alternatives recommended by the committee, ; the resolution is unnecessary because no clear, definite, practical results can flow from it, ; it is said we are bound to vote, whether the assertion is true or false, ; it is said the resolution is harmless at the worst, ; it should be rejected on account of the "company it keeps," ; we have gone on so long in error that it is not easy to say what should be done, ; a retrospective view of our affairs, , , ; it may be said, what has happened could not be prevented, ; it is said, if we suffer our commerce to go on the ocean, it will be crippled by france or great britain, ; nothing so well calculated to call out the resistance and obstinacy of great britain, as this measure of the embargo, ; the king of england dare not yield to our embargo, ; the object of our present legislation should be to relieve our country from the distresses under which it groans, ; resolution divided by omitting the words "and france," ; first part passed in committee, ; second part passed, ; resolution passed in the senate, ; other resolutions passed, . _in the house._--the report of the committee on foreign relations considered, ; explanation of the views of the committee, ; the report is only in part, with the intention to follow up the resolutions if adopted, with ulterior ones, ; committee satisfied that all hope of accommodating our differences with great britain by negotiation, must be abandoned, ; are the maritime rights which great britain is violating, such as we ought to support at the hazard and expense of a war? ; no prospect of a speedy repeal of the orders in council, ; we are a young nation, and cherish some pride and spirit, as well as justice and moderation, ; we ought to go to war, in opposition to the orders in council, ; the united states can make a serious impression upon great britain, at sea, even without a navy, ; question taken on the first resolution for filling the ranks of the present army, and carried, ; question on the agreement to the second resolution, authorizing the raising an additional regular force, ; are seven millions of americans to be protected in their lives and liberties by ten thousand vagabonds, who were fit food for gunpowder? ; it would be necessary to know the ulterior views of the committee, ; for what purpose are these troops wanted? ; the gentleman was a member of the committee, and attended its sittings, ; it is due to the committee to explain their conduct in the outset, ; republicans should remember that a few years ago, a set of men who held different politics, held the reins of government, ; if your minds are resolved on war, you are still republicans, ; what are we called upon to decide? it is whether we will resist by force the attempt made by that government to subject our maritime rights to the capricious rule of her will, ; war is already begun, ; it is a question of peace or war, ; how can gentlemen calling themselves republicans, advocate such a war? ; those who opposed the army are denounced as partisans of france, ; in , the committee recommended raising troops owing to the defenceless condition of the frontiers; yet, this report was considered too strong by the house, ; it is insinuated that the massacre on the wabash was instigated by the british government, ; _note_ ; this war of conquest, for the acquisition of territory and subjects, is to be a new commentary on the doctrine that republics are destitute of ambition, ; the war spirit in gentlemen from the south, not surprising, ; gentlemen avowed they would not go to war for the carrying trade, yet they stickle for our commercial rights, and will go to war for them, ; gratifying to find the demoralizing and destructive consequences of the non-importation law acknowledged, ; the committee has out-stripped the executive, ; our people will not submit to be taxed for this war of conquest and dominion, ; the defenceless state of our seaports, ; danger arising from the black population, ; the unjust and illiberal imputation of british attachments against certain characters in this country, ; further debate ; the expulsion of the british from their north american possessions, and granting letters of marque and reprisal against great britain, are contemplated, ; for the first time there seems to be but one opinion with the great majority of this body, that war with great britain is inevitable, ; we must now oppose her further encroachments by war, or formally annul the declaration of independence, ; the canadian french, ; why are they to be despised? ; it has been denied that british influence had any agency in the massacre on the wabash, ; our identity with the people and institutions of great britain, ; the ties of religion, language, blood, as it regards great britain, are dangerous ties to this country, with her present hostile disposition, ; the military regular forces have been called mercenaries, ; it is a question of war or submission, ; it is contended that it is a dispute about the carrying trade, ; the carrying trade is as much the right of the american people as the carrying the products of their own soil, and is secured by the british treaty, ; the massacre on the wabash, ; the principles that ought to govern civilized nations, have at all times been disregarded by the officers and agents of the british government, ; mercenary objects should not be ascribed to gentlemen, as motives for the war, ; the report means nothing but war or empty menace, ; the gentleman from virginia is in error, through inadvertency, or mistake, ; a menacing system has nothing to commend it, ; menaces should be resorted to with as much caution and seriousness as war itself, and should, if not successful, be invariably followed by it, ; an additional force is a measure evidently improper, but as a preparation for war; but undoubtedly necessary in that event, ; this country should never resort to war but for causes the most urgent and necessary, ; if the war ensues it can be proved justifiable and necessary by facts undoubted, and universally admitted, ; the question, in the opinion of opponents, is reduced to this single point--which shall we do, abandon or defend our own commercial rights? ; gentlemen will not say, we have not a good cause for war, but insist that it is our duty to define it, ; what do they mean by this? ; the objections urged, consist of an enumeration of the evils incident to war, however just and necessary; if they have any force, it is calculated to produce unqualified submission to every species of insult, ; it is said the country is in an unprepared state, ; whose is the fault? ; it is said the nation will not pay taxes, for the defence will cost more than the profit, ; the dangers of war are next held up, ; no disposition manifested on the part of great britain to relax her oppression or to make restitution for damages, but, on the contrary, a disposition to persist in her lawless aggressions, ; remonstrances against atrocities have been made, in vain, ; we have been plundered, oppressed, and insulted, but the day of retribution is at hand, ; if the british government would cease to violate our neutral and national rights, our difficulties would be at an end, ; we must prepare to maintain the right to carry our produce to what market we please, or to be content without a market, ; no objection to declare the points for which we go to war, ; the previous question should not be used, to put an end to this debate, ; further debate, ; the resolutions considered as a measure of hostility, according to the views of their advocates and as a measure of defensive preparations, agreeable to the spirit of the executive recommendation, ; the invasion of canada to be deprecated as an act of foreign conquest, ; war to be feared from a manly dread of its consequences, ; retrospect of our relations with britain since nearly the commencement of the present government of the united states, ; this view shows the expediency of increasing our regular force, ; by the adoption of this report, we are entering on a system of operations of the utmost national moment, ; some regret that vigorous measures had not been adopted long since, ; why should the wise policy of the past be condemned? ; reasons for opposing the measure, ; this is to be a foreign offensive war, as regards canada, ; all the belligerents had deserved war at our hands, ; but the policy of the republicans had been to cherish peace, and to avoid war, even to this time, ; in -' , the best interests of the country forbade war, and so the people determined, ; professions of peace brought in the republican party to power, ; if there were any differences between the causes of the war then, and now, it was in favor of the former period, ; what were the facts? ; it is said to be a principle of honor to resist a first insult, ; impossible to perceive how the present, of all others, had become the necessary and accepted time for war, ; if the country ever determines on war, any force should be voted, ; reasons for voting for the measure, ; the right of carrying our own produce, in our own ships, to any quarter, should never be yielded, ; it is said, the war will be one of aggrandizement, of conquest, ; if we force england to a treaty, how long will she keep it? ; new men and new doctrines have succeeded to the old republican party, ; the nation has been brought to its present alarming and unprecedented situation, by means in nowise unaccountable, ; by steps as direct and successive as the pictures of the "rake's progress," ; america ought to be proud of her anglo-saxon origin, ; it has been asked, why was the country unprepared for defence? ; this is not to be a party war, it is said, ; "goose creek," ; _note_, ; second resolution carried, ; third resolution carried, ; fourth and fifth resolutions carried, ; sixth resolution laid on the table, ; taken up, ; what reasons are there to induce us to authorize our merchant vessels to arm against unlawful molestation on the high seas, ; what is the object of this measure? ; resolution concurred in, ; report on, . foster, augustus j., as british minister disclaims any knowledge of john henry, . _france, relations with_, during john adams' administration, _see index_, vol. . _franking privilege._--_see index_, vols. , , _post office_. franklin, jesse, senator from north carolina, , , , , , . _see index_, vols. , , . franklin, meshack, representative from north carolina, , , , , . _see index_, vol. . _freedom of conscience._--_see index_, vol. . _french refugees._--_see index_, vol. . _french spoliations_, statement and representation of capt. samuel chew, ; laid on the table, . _see index_, vol. . _frontiers, protection of._--_see index_, vol. . _fugitives from justice._--_see index_, vol. . fulton, robert, letter relative to torpedoes, ; referred, . g gaillard, john, senator from south carolina, , , , , , ; appointed president _pro tem._ of senate, ; elected, . _see index_, vol. . gallatin, albert, reports relative to barred claims, ; letter as secretary of the treasury, ; secretary of the treasury, letter of, relative to suspension of non-importation, . _see index_, vols. , . gannett, barzillai, representative from massachusetts, , , . gardenier, barent, representative from new york, , , , ; on submission to the late edicts of england and france, ; on remunerating those who resisted the law for a direct tax, ; on prosecutions for libel, ; on the call on the president for papers, ; supports petition of elizabeth hamilton, . _see index_, vol. . gardner, francis, representative from new hampshire, . _see index_, vol. . gardner, gideon, representative from massachusetts, , , . garland, david s., representative from virginia, , . garnett, james m., representative from virginia, . _see index_, vol. . _general officers, additional_, bill relative to, considered, . _georgia_, vote for president in , ; in , , . _georgia land claim._--_see index_, vol. . german, obadiah, senator from new york, , , , , ; on the declaration of war, . _german language_, laws in, _see index_, vol. . gerry, elbridge, elected vice president, . _see index_ vols. , . gholson, thomas, jr., representative from virginia, , , , , , ; on foreign relations, ; on the batture at new orleans, ; on the conduct of the british minister, ; supports petition of elizabeth hamilton, ; reports on the petition of amy dardin, ; on the admission of the territory of orleans as a state, ; in favor of the admission of mississippi, ; on the statutes of limitations, ; on the british intrigues, . giles, william b., senator from virginia, , , , , ; on the repeal of the embargo act, ; reports a bill for the enforcement of the embargo laws, ; on the bill for the enforcement of the embargo, ; offers an amendment to extend non-intercourse to all foreign nations, ; reports a bill to prevent abuse of privileges by foreign ministers, ; on the conduct of the british minister, ; on incorporating a bank of the united states, ; on an additional military force, . _see index_, vols. , , . gilman, nicholas, senator from new hampshire, , , , , , ; reports the bill engrossed in favor of an additional military force, . _see index_, vols. , , . gold, thomas r., representative from new york, , , , , ; on the batture at new orleans, ; supports petition of elizabeth hamilton, ; favors postponement of the resolution relative to the apportionment of representation, ; on the ratio of representation, ; on commercial intercourse with france and great britain, ; on rules and orders of the house, ; on making provision for a corps of engineers, ; on pay of the army, ; in favor of a naval establishment, ; on an additional military force, . goldsborough, charles, representative from maryland, , , , , ; on the ratio of representation, . _see index_, vol. . goodrich, chauncey, senator from connecticut, , , , , , ; on the bill for the enforcement of the embargo, . _see index_, vols. , , . goodwyn, peterson, representative from virginia, , , , , , . _see index_, vol. . _goose creek_, _note_, . gray, edwin, representative from virginia, , , , , , . _see index_, vol. . green, isaiah l., representative from massachusetts, , , . _see index_, vol. . gregg, andrew, senator from pennsylvania, , , , , , ; elected president _pro tem._, _see index_, vols. , , . griswold, stanley, senator from ohio, , . grosvenor, thomas p., representative from new york, . grundy, felix, representative from tennessee, , ; on domestic manufactures, ; on indian affairs, ; on foreign relations, ; on the british intrigues, ; on the recall of absentees, ; on the bill laying an embargo, ; presents a bill to raise an additional military force, ; on the objects of the war, ; on war taxes, ; on an extra session, . _gunboats._--_see index_, vol. . h _habeas corpus_, suspension of, &c., _see index_, vol. . hale, william, representative from new hampshire, , , . hall, bolling, representative from georgia, , . hall, obed, representative from new hampshire, , . _hall of the house of representatives_, how it may be used, . hamilton, paul, secretary of the navy, letter to lieut. elliot, . _hamilton, mrs., claim of_, in the house, report on the petition of elizabeth hamilton, ; report favors the claims of the petitioner on grounds of equity, but declares they are barred by the statute of limitations and ought not to be granted, ; the late gen. hamilton had no claim on the government under the resolution of the old congress, ; no claim, notwithstanding the statute, ; hundreds of cases equally hard, ; the impoverished old soldiers should be relieved before claims of this kind are granted, ; if the statute was unjust it should be repealed; if not, exceptions should not be made but with extreme care, ; gen. hamilton in service until the close of the war, ; did not resign his commission by accepting a seat in congress, ; congress had relieved the daughters of count de grasse, ; the statute of limitations was never intended to bar just claims, ; bill ordered to be reported, ; bill reported and amendments proposed, ; passage of the bill, . harper, john a., representative from new hampshire, , . harris, john, representative from new york, . _see index_, vol. . haven, nathaniel a., representative from new hampshire, , , . hawes, aylett, representative from virginia, , . _hazen, charlotte_, petition of, . heister, daniel, representative from pennsylvania, , , . _see index_, vols. , . heister, john, representative from pennsylvania, . helms, william, representative from new jersey, , , , ; against petition of elizabeth hamilton, . _see index_, vols. , , . hempstead, edward, delegate from missouri territory, ; on mississippi land claims, . henry, john, letters of, , , , , , , , ; memorial to lord liverpool, . hickman, harris h., letter to lieutenant elliot, . hillhouse, james, senator from connecticut, , , ; offers resolution to repeal the embargo act, ; on the repeal of the embargo act, ; resigns his seat in the senate, . _see index_, vols. , , . hoge, william, representative from pennsylvania, . _see index_, vols. , . holland, james, representative from north carolina, , , , ; on the immediate arming of the public vessels, ; on non-intercourse with great britain and france, ; in favor of the admission of mississippi, . _see index_, vols. , . holmes, david, representative from virginia, . _see index_, vols. , . _home manufactures in the house._--_see index_, vol . horsey, outerbridge, senator from delaware, , , ; on the occupation of florida, . _house._--meeting of d session of th congress, ; assembles on st session, th congress, ; adjournment of st session of th congress, ; adjourns at close of d session of th congress, ; meeting at d session of th congress, ; meets at st session of th congress, ; adjourns at close of st session of th congress, ; meets at d session of th congress, ; adjourns d session of th congress, . howard, benjamin, representative from kentucky, , , ; presents the petition of naturalized british subjects, ; his proclamation as governor of the missouri territory, . _see index_, vol. . howell, jeremiah b., senator from rhode island, , . howland, benjamin, senator from rhode island, . _see index_, vol. . hubbard, jonathan h., representative from vermont, , , . hufty, jacob, representative from new jersey, , , , , . humphreys, reuben, representative from new york, . hungerford, john p., representative from virginia, ; declared not entitled to a seat, . huntington, ebenezer, representative from connecticut, . hunter, william, senator from rhode island, , . hyneman, john m., representative from pennsylvania, , . i ilsley daniel, representative from massachusetts, . _impeachment._--_see index_, vol. . _importation of slaves._--_see index_, vol. . _imports._--_see duties on imports._ _imprisonment for debt._--_see index_, vol. . _inaugural address_ of james madison, on commencing his second term as president, . _indemnity for spoliations._ _see index_, vol. ., _great britain_. _indiana territory._--committee appointed to consider the expediency of dividing, ; report of committee relative to a division of, . _indian affairs._--in the house, a resolution offered to extend the laws of the united states over all white persons residing on indian lands within the united states in which the title is not extinguished, ; indian countries have become an asylum for persons guilty of every enormity, ; do not the laws of the united states at present extend to cases of this kind, ; a recent case in georgia, ; some defects in the present law by which petty officers escape, ; laid on the table, . _indian lands within a state, rights over._--_see index_, vol. . _indian trading houses._--_see index_, vol. . ingersoll, jared, voted for as vice president in , . _inoculation of the army_, petition relative to, . _intercourse, commercial._--in the house, bill from the committee of foreign relations considered, ; the bill, ; exempts all vessels, owned wholly or in part by american citizens, and merchandise, from seizure or forfeiture, which have left british ports prior to february d, , ; moved to amend so as to exempt all vessels and merchandise, ; the amendment will at once give a clear deck, ; the law of may last, authorized the president to proclaim the fact, if either france or great britain revoked her edicts, and non-intercourse should ensue with the other, ; france revoked her edicts; britain did not, and non-intercourse is in force with her, ; this fact doubted, and should be inquired into, ; the bills to lay additional duties, and to authorize a loan, furnish additional reasons for this bill, ; if the non-intercourse has not gone into effect, new taxes and loans are not needed, ; proceedings of the executive relative to great britain, ; the president has acted differently under two laws, which ought to have the same practical construction, ; is it said, the president had no knowledge of the blockading orders of may, or that it was avowed to be comprehended in the orders in council? ; as to france, what are the edicts revoked, and how? ; the rambouillet decree, ; it purports to be an act of reprisal on this country, ; what ought to have been the feelings of the administration and of the country, in relation to this measure? ; this is taking property under false pretences, in its nature, ; another view of this decree, ; another mistake of this government, ; the practical operation of our law, ; apologists of the emperor point to the act of st june, ; object in view in this examination of the decree of rambouillet, ; threats and insults of the french emperor, ; have these decrees been so revoked or modified as to cease to violate the neutral commerce of the united states? ; these decrees have two distinct operations, ; the seizure of our property, and its sale, ; if there has been any modification, it only prevents future seizures, leaving the property already seized to take the course of confiscation and sale, ; has there been such a revocation of the berlin and milan decrees, as warranted the proclamation? ; it was not credited that it could be issued on the letter of the duke of cadore, ; what is the understanding of the french courts and officers on the subject? ; the revocation, if any, was a future one, ; it was also conditional, ; puzzling to determine whether it was a condition precedent or subsequent, ; the conditions on the part of england, ; conditions on the part of france, ; conditions on the part of this country, ; the right of not being vexed or endangered by paper blockades, respected, ; the flag is to protect the property, and search is not to be permitted, ; how are we to cause those rights to be respected? ; are we prepared for those conditions? ; it may be said, that the letter of the duke of cadore, if not itself a decree, is evidence of a rescinding decree, ; the letter of mr. russell, ; moved to strike out the whole of the bill, ; it is a new duty for representatives to present under a suspicious aspect, either the motives or the acts of the executive branch of their government, ; in no nation, ancient or modern, was such a thing seen, unless in the last stages of corruption, ; the whole fact should have been stated in regard to the letter of the duc de cadore, and the answer of general armstrong, ; why is the president's proclamation disapproved? ; the letter of mr. erskine was not a repeal of the british orders, ; no difference in the ground taken by the executive, except that one arrangement was with great britain, and the other with france, ; shown from the correspondence, that the president did not, under the act of the last session, require the revocation by great britain, of any blockade, except that of may, ; and that blockade must have been included in the demand under the act of last session, ; extract from the message of the president, ; declaration of our secretary to general armstrong, ; declaration of general armstrong and the duc de cadore, ; statement of lord wellesley, ; do. ; thus the demand was confined to the blockade of , ; was this blockade such a violation of the neutral rights of the united states, as to come decidedly within the act of last session? ; this blockade presents three distinct characters, ; st. it obstructs a trade from one port to another, of the same enemy; d. it obstructs trade from the port of one enemy to the port of another; d. it obstructs trade of neutrals from their own country to any part of the coast from the elbe to brest, ; it is in violation of the principles contended for by every administration under the american government, ; letters of mr. king and mr. marshall, ; some observations on the bill before the house, ; the construction put on the non-intercourse law is perfectly within its object, ; further explanation of the law, ; views of the committee, ; unwillingness to imply by any vote, a recognition of the efficacy of the non-intercourse law, which could not have an operative force until may, is a motive to sustain the amendment, ; truth of the position as to the operation of the law, demonstrable, ; not answer to argue from the intention of the legislature, ; the words of the act are explicit, and the meaning plain, ; pledge contained in the act relative to commercial intercourse between the united states and great britain and france, ; explanation of this pledge, ; the same proposition was presented to both the latter nations, ; if either would revoke its edicts, no goods or wares of the other, should, three months thereafter, be imported into the united states, ; france did so revoke her edicts, ; this amendment proposes to repeal the non-intercourse act, excluding the merchandise of great britain, although france has so repealed her edicts, and great britain has not, ; this is a direct breach of faith, ; the excuse is, that the president had no right to issue his proclamation, and that the assurances of france were deceptive, ; the president is expressly instructed by the non-intercourse act to make the proclamation, ; as well might the legitimacy of a treaty be questioned after it had been ratified, ; how could the president act a different part upon the evidence in the case? ; if this diplomatic evidence is not to be received, an end is put to all diplomatic intercourse, ; if great britain had made the like communication, and the president had taken the like course, what would have been said by these gentlemen? ; they approve the proclamation in the case of great britain, but denounce a similar proposition in the case of france, ; it is said, the non-intercourse act is not in force; whence do gentlemen derive the power to declare an act of congress not in force? ; the revoked decrees of france are considered by some as more obnoxious than the british orders in council, ; who can be an apologist of france or england, when each has charged the other with the first aggressions on our commerce? ; while great britain finds some able advocates in this house, she will find no necessity to redress our wrongs, . in viewing the course which has been adopted this session, it is surprising that the present measure should be called up for adoption, ; it is now evident that the president was duped by the french emperor, and led to issue his proclamation, ; what has occurred to alter the face of affairs, to induce this new attempt to fasten on the restrictive system against our intercourse with great britain? ; the last communication from the president furnishes the most conclusive evidence of the treachery of bonaparte, ; how has the president's proclamation been verified? ; the remonstrance of mr. russell remains unanswered, and the new orleans packet remains under seizure to this day, ; after thirteen days a partial suspension of the decrees was ordered, ; a suspension not as to sequestration, but as to condemnation, ; with this statement before their eyes, will gentlemen assert that the decrees were revoked? ; are we bound by any faithful performance had on the part of france? ; have either france or great britain complied with the condition? ; must this sacrifice be made in order to bolster up the president's proclamation so prematurely issued? ; is this an honest neutrality to revive the restrictive system against great britain, while the french decrees are still in force? ; the present measure is intended as a propitiatory sacrifice to conciliate napoleon, ; is it calculated to produce this effect? ; a view of the course which has been pursued can answer, ; the amendments contemplate the continuance and enforcement of the non-intercourse law, ; after long delay the administration has condescended to develop their policy, ; the proposition contained in these amendments has relation to the most momentous and most elevated of our legislative obligations, ; the nature and effects of this commercial restrictive system are no longer matter of speculation, ; only a word on its nature necessary, ; the system contained in the law of may, , and march, , is injurious, is not fiscal in its nature, nor protective of manufactures, nor competent to coerce either belligerent, ; who was ever the friend of non-intercourse? ; it was agreed upon because the majority could agree upon nothing else, ; the system should therefore be abandoned, ; its advocates say we cannot abandon it, for our faith is plighted, ; is any such faith plighted? if so, whence did it arise? ; under the act of may, , ; what is its character and the obligations arising under it? ; the obligations arise under a certain section, ; divested of technical expression, it provides that a new commercial condition shall result on the occurrence of a certain fact, which fact the president shall declare, ; the terms our act proposed was the modification or revocation of certain edicts; the effect to be produced was that this revocation or modification should be such as that these edicts should "cease to violate our neutral commerce," ; has the act been done, and in such a manner as to amount to an honorable fulfilment or acceptance of our terms? ; the occurrence of the fact of revocation involves the propriety of the proclamation, ; has the fact occurred? ; this point examined with regard to france, ; letter of the duc de cadore examined, ; point of honor to be saved to france, ; how was great britain to accede to the terms? ; the declaration on the part of france further examined, ; the fact must be done and the effect produced, but the terms of that act must be excepted, ; the proffer we made was only to revive the non-intercourse law against the contumacious belligerent, after three months from the date of the proclamation, ; what the french mean, ; our efficient concurrence in bonaparte's plan of policy, ; is it possible to point out any variation in the policy of france to this country before and since this letter? ; the true nature of this cadore policy is to be discovered in the character of bonaparte, ; it is impossible to reason with those who deny that the decrees now exist, ; the act now proposed is required by no obligation, ; the present is the most favorable moment for the abandonment of these restrictions, ; the edicts of the president are far more detestable to the merchants than those of france or george iii., ; it is time to take our own rights into our own keeping, ; why not give the same credence to the letters of the duke of massa and the duc de gaete, as would be given to a letter from the chancellor of the exchequer in great britain? ; about to shut up the only avenue to our commercial hope, it is said, ; this point examined, ; extracts of letters from liverpool, ; one gentleman willing to surrender the carrying trade to great britain, ; three classes of your citizens to be provided for as contemplated in the provisions of this bill, ; first, sequestrations in france, spain, italy, &c.; second, those who have sailed to france under the faith of the duke of cadore's letter; third, importers of british manufactures, ; it is to be hoped the time is not far distant when we shall assert and defend our rights, ; are we prepared, after having been insulted, robbed and deceived by the french emperor, to follow the example of petty servile states, and throw this people into the embraces of that monster? ; principal object of the amendment to renew the non-intercourse of , so far as respects great britain, ; the amendment to suspend the whole restrictive system should be adopted, ; this amendment changes the position recommended by the executive, but not much more than the bill with the amendment under consideration, ; this bill would have been scouted as the production of a madman previous to the reign of bonaparte, ; we have conclusive evidence that the edicts are not so revoked that their operation ceased on that day, ; how are we to cause our rights to be respected? ; further debate respecting the operation of the decrees, ; examination of the non-intercourse system from the date of the law of march, , to inquire what its professed object is, ; it is thus demonstrated that if we suffer this system to go into operation, we are not only again to reduce our citizens to a state of bankruptcy in their private fortunes, but our treasury is likewise to be more completely bankrupt, ; what has been the further effect of this law? ; history of its results, ; further remarks, ; correspondence examined, ; will the servile manner in which the rescinding the blockade is coupled as a condition with the withdrawing the orders in council, escape notice? ; what american can read this correspondence without laying his hand upon his heart and exclaiming o, my government, my government, now is the gold become dim, &c., ; after seeing how the law of may, , has been used with the french government, until it had assumed the character of a threat, together with the various changes of position taken by our government, it demonstrates a management which will not leave much doubt whether it be indispensable to suffer this law to go into effect as a measure of resistance against england, or good faith to france, ; the proclamation was issued when there was no official information of the repeal of the decrees, ; the faith of the nation is not pledged by the law of , ; it may even be admitted that this law has all the binding force of treaties, ; before france can claim a fulfilment of any such promise, she should not only revoke her injurious acts, but it should be done fairly and honestly, and without at the same time adopting other measures equally injurious, ; is this that fair and honest repeal of the berlin and milan decrees? is this that _bona fide_ performance of the condition? ; it is an attempt to gull and deceive us by an artful, intriguing policy, ; this is the favorite moment to erase the restrictive system from your statute books, ; the consequences of its continuance examined, ; it becomes this government, in all our concerns with the belligerents of europe, to manifest to both a fair, impartial and equal conduct, ; has such a spirit characterized the proceedings of our government? ; has a similar temper and disposition been shown to great britain as to france, in the interpretation of the cadore letter? ; this part of the case will not well bear scrutiny, ; the bill on the table is calculated much more to put in jeopardy the neutral character of our government, ; the principle of the act of may was just and equal, ; the most copious source of error is found in the extent of the berlin and milan decrees, ; had france proved faithful to her engagements, the united states would at this moment have had a prosperous commerce with europe, ; why shall we at this moment make this marked distinction between france and england? ; the great question is, does the fact upon which the proclamation was alone to issue, and on which its legitimacy solely depends, exist, or does it not exist? ; the very doubt ought to decide the question, ; such is the case that we are enabled to prove a negative, ; the letter of the duc de cadore examined, ; the case further examined, ; the purity of the source whence our arguments come has been questioned, ; the order of may, , has scarcely a single feature of a regular blockade, ; notice of the arrangement with mr. erskine, ; if the berlin and milan decrees had been actually repealed, what would we have gained? ; there can be no importation of american productions into france, but on terms utterly inadmissible, ; it is vain to seek for the justification of this measure from any thing france has done, ; the disposition of bonaparte towards us rests not alone on his acts of aggression, rapine and plunder, ; motion to postpone lost, ; it was contended that the emperor of france had not fulfilled his engagement, ; amendment offered, ; lost, ; further debate, ; previous question moved, ; carried, ; adjournment moved, ; lost, ; bill passed, ; the bill, . _intercourse foreign._--message from the president relative to the execution of the act of , appropriating two million dollars for defraying any extraordinary expenses attending our foreign intercourse, . _intercourse non._--in senate, bill to interdict commercial intercourse, &c., read the third time, ; the effect of the measure must be war with great britain, it is stated, ; what excuse is there for leaving the country in such a defenceless state? ; what are our preparations? ; what is the state of the treasury? ; what plans are offered for replenishing it? ; if we are to have war, with whom is it to be prosecuted? ; under these circumstances what is the course that policy would dictate to this country to pursue? ; consequences of non-intercourse under such circumstances, ; who has been the first aggressor? ; bill passed, . _in the house._--resolution previously referred, ; nature of the bill reported, ; whole subject of embargo and non-intercourse should be incorporated in one bill, ; referred to committee on foreign relations, with instructions to bring in a bill, ; the whole to present a general system, . bill for interdicting commercial intercourse between the united states and great britain considered, ; moved to strike out the first section in order to try the principle of the bill, ; impossibility of carrying the system into effect, ; rather than accept this system it would be better to remain under the embargo, ; the idea of the efficacy of this system examined, ; for the future the remedy is--to follow nature, ; she dictates the removal of all obstructions, ; the removal of the embargo would give an opportunity for negotiations, ; also show the effect of the orders and decrees, if these were not injurious no further steps would be necessary, ; legal opposition to the embargo laws in massachusetts, ; when did the violation of our rights commence? ; so long ago no time could be fixed, ; the hot-bed politicians stirred up the people of new england, ; if we cannot get war, or a continuance of the embargo, non-intercourse should be carried into effect, ; england will treat before going to war, ; when the embargo shall cease, war will be the only honorable course, if reparation is not made, ; the embargo as a precautionary and coercive measure, ; when the injuries were committed resistance or submission was our only course, ; time to change our measures and place our future reliance in providence and the energies and valor of the citizens, ; this bill is conducive to the interests of the country, ; it maintains our attitude and continues our solemn protest, ; it reserves the great question to be decided at the next congress, ; objections to the bill considered, ; question on striking out first section lost, ; the embargo should be adhered to, until a majority of the people prefer war, ; there is no middle course, ; the great object of the united states in her foreign relations is to maintain honorable peace, ; reason for resorting to the embargo, ; objects for which it has been pursued, ; why should they now be abandoned? ; now is the most critical period for the effect of the embargo, ; views of great britain, ; what will be the inference drawn from adopting this measure? ; firmness peculiarly requisite at this time, ; motion to strike out lost, . _in the senate._--amendment to the act offered, purporting to extend it to all public armed vessels until modified by treaty, ; a necessity to consider the subject arises from the limitation of certain sections of the act, ; this extension should have been made at the last session, ; it is merely a municipal proposition, ; overtures of the british cabinet, ; motive of resisting the aggression of france, ; reasons why modifications should be made by treaty, ; great britain cannot complain, ; extract from canning's speech, ; two conclusions deduced, ; the principle contended for not new, ; report on the amendment, . _in the house._--resolution to suspend the non-intercourse act offered, ; bill from the senate to revive and amend certain parts of the act relative to non-intercourse considered, ; what led to the exclusion of british vessels? the attack on the chesapeake, ; shall the measure of hostility be continued after the cause has been done away, ; the interdiction of the act was founded on the violation of our rights by the belligerents, ; the hostility ceased when the act was passed, ; it was not the act, ; upon the passage of this bill may depend the destinies of this country, ; the question is what regulation shall be made respecting public ships, ; shall we exclude both--admit both, or discriminate? ; england has made reparation, ; the ground we have taken in respect to france and england reviewed, ; the system proposed is one of impartiality to the belligerent powers of europe, ; why were french armed ships excluded? ; it was considered a measure favoring great britain, ; do away every possible justification that can be urged by france for not meeting our overtures for peace, ; if you wish to gain the advantage of union at home, take away every pretext for the violation of your rights, ; did not this bill place the two belligerents on equal footing? ; state of the continent, ; it is said, we should not discriminate, for france has no public armed vessels, ; it is not consistent with our honor and dignity to admit french ships within our waters, ; if we are at peace with great britain are they entitled to all the rights of hospitality one nation can show to another? ; this bill is a concession to great britain and is not a hostility to france, ; what injuries has france done? ; if you discriminate under the same circumstances you jeopardize the peace of the country, ; what has britain done which would require a discrimination as to her public vessels? ; the bill should be passed in its present form, any material alteration will cause it to be lost, and thus will end all that has taken place between this country and great britain, ; purport of the amendment proposed, ; admission of english and exclusion of french ships, ; cause of the interdict of british vessels, ; there has been no satisfactory adjustment of our difficulties with great britain, ; proceedings adopted to obtain a direct question on the first amendment, ; a precedent furnished, ; moved to exclude both french and english vessels, ; lost, ; amendment moved that penalties and forfeitures incurred should be recoverable after the act had expired, . a discrimination should be made, for one nation has complied with the conditions of the non-intercourse act, whilst the other has not changed her position, ; the armed vessels of either should not be admitted, ; should so act that neither of the belligerents could charge us with partiality, ; desirable that nothing should be done to embarrass negotiations, ; this bill has passed the senate unanimously, ; this bill does not conform to any system of policy, ; it is said this bill is considered as comporting with the views of the executive, ; nothing due for any boon great britain has given us, ; what is the declaration of the british minister? ; difficult to say what other system would be proper, ; bill passed, . _in the senate._--have been for years contending against the tyranny of the ocean, and pledged ourselves to the world not to surrender our rights, ; war preferable to ignominious peace, ; what are the means for carrying on war? ; it is said, no object is attainable by war with great britain, ; it will deprive her of those supplies of raw materials obtained from this country, ; it will reproduce and cherish a commercial spirit in us, ; this bill is a total dereliction of all opposition to the edicts of the belligerents, ; motion to recommit the bill lost, . question, shall the senate adhere to their amendments? ; the interests of the country require that the subject shall be finally acted upon, ; committee of conference appointed, ; report and the question to adhere, ; review of the causes that led to the measures of this government, , ; it is better for congress to rise and do nothing than to do that which will only injure ourselves, ; senate vote to adhere, . j jackson, f. j., his circular to british consuls, . jackson, john g., representative from virginia, , , ; in favor of immediate arming of the public vessels, ; on an extra session of congress, ; on resolution relative to election of presidential electors in massachusetts, ; moves to postpone the consideration of a vote of approbation of the conduct of the executive, ; on non-intercourse with great britain and france, . _see index_, vols. , , . jackson, richard s., representative from rhode island, , , , , , ; on submission to the late edicts of england and france, . _jails of states._--_see index_, vol. . jefferson, thomas, message as president at a d session of th congress, ; franking privilege conferred on, ; calls extra session of the senate, ; results of his administration, _note_, ; franking privilege granted to, . _see index_, vols. , , . jenkins, robert, representative from pennsylvania, , , , . _see index_, vol. . jennings, jonathan, delegate from indiana territory, , , , ; on raising mounted rangers, . johnson, richard m., representative from kentucky, , , , , , ; on foreign relations, ; on non-intercourse with great britain and france, ; supports petition of elizabeth hamilton, ; in favor of the admission of mississippi, ; on foreign relations, ; against a naval establishment, ; on the limits of louisiana as a state, ; offers a resolution to raise mounted volunteers, . _see index_, vol. . jones, jacob, his letter to the secretary of the navy, . jones, walter, representative from virginia, , , , . _see index_, vols. , . _judiciary system_, bill to amend, read twice, , . _see index_, vol. . _judges, federal_, removal of, in the house, constitution not perfect, and provision made for amendment, ; the amendment is to place the judiciary on the same foundation as the british judiciary, ; resolutions offered, ; house refused to consider, . _see index_, vol. . k kelly, james, representative from pennsylvania, . kenan, thomas, representative from north carolina, , , , . _see index_, vol. . kennedy, william, representative from north carolina, , , , . _see index_, vol. . kent, joseph, representative from maryland, , ; on an additional military force, . _kentucky._--vote for president in , ; in , , . key, philip b., representative from maryland, , , , , , ; on submission to the late edicts of england and france, ; on an inquiry relative to prosecutions under the sedition law, ; supports petition of elizabeth hamilton, ; on reduction of the navy, ; on the british intrigues, . _see index_, vols. , . king, rufus, number of votes for, as vice president, ; letter to lord grenville, . _see index_, vol. . king, william r., representative from north carolina, , ; on laying additional duties, ; on foreign relations, . kirkpatrick, william, representative from new york, . _see index_, vol. . kitchel, aaron, senator from n.j., . _see index_, vols. , , . knickerbocker, herman, representative from new york, , , . l lacock, abner, representative from pennsylvania, , ; on the naturalization laws, , . lambert, john, senator from new jersey, , , , , , . _see index_, vol. . _land office_, bill to establish, read second time in the senate, . _lands, western_, _see index_, vols. , , _public lands_. langdon, john, number of votes for, as vice president, . law, lyman, representative from connecticut, , ; in favor of a naval establishment, ; on an additional military force, . lefevre, joseph, representative from pennsylvania, . leib, michael, senator from pennsylvania, , , , , , , ; makes a report relative to foreign vessels, ; offers resolutions relative to demands on great britain, . _see index_, vols. , . lewis, joseph, jr., representative from virginia, , , , , , ; presents the petition of the directors of washington bridge company, ; presents a bill to establish a turnpike company in the district of columbia, . _see index_, vol. . _library of congress._--_see index_, vol. . _licenses, foreign_, bill relative to passed, . _lighthouse duties._--_see index_, vol. . _limitation, statutes of_, in the house, resolution requiring the committee on claims to inquire into the expediency of repealing or suspending the statutes of limitation, so far as they operate in bar of the payment of certain claims referred, ; report of committee, ; report considered, ; all this class of claims, being liquidated claims, can be allowed, so the treasury department states, without danger of fraud or imposition, ; the amount is $ , , of which one-fifth may not be applied for, ; what is the statute of limitations? ; in such statutes there are always exceptions, ; what would be the course of an individual? ; report not to open the act disagreed to, ; resolution recommending provision for their payment agreed to, resolution from the committee considered and referred, . _see index_, vol. . little, peter, representative from maryland, , ; on pay of the army, ; on privateer pensions, ; on war taxes, . livermore, edward st. loe, representative from massachusetts, , , , ; on non-intercourse with great britain and france, ; opposes the postponement of the resolution relative to the apportionment of representation, . _see index_, vol. . liverpool, lord, his despatch to sir george prevost, . livingston, edward, memorial relative to the batture at orleans, . _see index_, vols. , . livingston, robert le roy, representative from new york, , , , . lloyd james, jr., senator from massachusetts, , , , , , ; on the repeal of the embargo act, ; on non-intercourse with great britain, ; on the postponement of the bill for additional duties, ; on incorporating a bank of the united states, ; on an increase of the navy, . _loan bill._--in the house, the bill to authorize a loan not exceeding the principal of the public debt, considered, ; no objection to the principle of the bill, ; doubtful as to the amount required, ; borrowing money, should not be called paying the public debt, ; all authority to borrow money should be express and specific as to the sum, ; money wanted to defray the debts heretofore contracted, ; specific in fact, ; amendments proposed, ; bill ordered to be engrossed, ; further debate, ; bill passed, . _louisiana_ lead company, bill to incorporate rejected, . _louisiana purchase._--_see index_, vols. , . _louisiana territory_, petition of inhabitants, . _see territories._ _louisiana, state of._--in the house, the bill for the admission of louisiana, &c., considered in committee, ; amendment relative to the boundary offered, ; better that this addition of territory should be the subject of a separate law, ; there is no difficulty in either way, ; the bill for admission should state the boundary, ; motion passed, ; question relative to the inhabitants of florida territory, attached to this bill, ; passage of the bill for the admission of louisiana, . _louisiana_, vote for president in , , . love, john, representative from virginia, , , , ; makes a report on petition of citizens engaged in miranda's expedition, ; favors the resolution for immediate measures to liberate american prisoners in carthagena, . _see index_, vol. . lowndes, william, representative from south carolina, , ; in favor of a naval establishment, . _see index_, vols. , . lyle, aaron, representative from pennsylvania, , , , , . lyon, matthew, representative from kentucky, , , ; supports the resolution for immediate measures to liberate american prisoners in carthagena, ; relative to prosecutions for libel, ; charge in the indictment against him for libel, ; facts in his case, ; on the torpedo experiment, , . _claim of._--in the house, a memorial of matthew lyon for refunding his fine, under the sedition act, ; moved to refer to the committee on claims, ; if the petitioner has any claim, it is because the law is unconstitutional, of which this committee are not the proper judge, ; moved to refer to a select committee, ; the whole subject of these prosecutions was referred to a committee at a former session, which had been prevented from acting; if there is justice in any of this class of claims, it should be known, ; idle to attempt to do by statute, what the constitution has endeavored in vain to enforce, ; amendment proposed to the reference, ; proper measures had not been taken to prevent a recurrence of measures of this kind, ; amendment carried, . _see index_, vols. , . m maclay, samuel, senator from pennsylvania, ; resigns his seat in senate, . _see index_, vols. , , . macon, nathaniel, representative from north carolina, , , , , , ; offers resolution relative to the expediency of continuing the embargo, ; opposes the resolution for immediate measures to liberate american prisoners in carthagena, ; on the immediate arming of the public vessels, ; on an extra session, ; on counting blank ballots, ; declines to be a candidate for the speakership, ; on an inquiry relative to prosecutions under the sedition law, , ; on the batture at new orleans, ; on non-intercourse with great britain and france, ; on the remission of certain fines on emigrants from cuba, ; opposes postponement of the resolution relative to the apportionment of representation, ; on the ratio of representation, ; on the admission of the territory of orleans, as a state, , ; on commercial intercourse with france and great britain, ; on laying additional duties, ; on a quartermaster's department, ; on the british intrigues, ; on the state limits of mississippi, ; on mode of relief of caraccas, ; on pay of the army, ; on the imprisonment of american seamen, ; on an additional military force, ; on an additional military force, . _see index_, vols. , , . madison, james, his letter as secretary of state, on the object of the secret appropriation for foreign intercourse, ; elected president in , ; number of votes for, as president, ; number of votes for, as vice president, ; first inaugural of, ; letter to the senate on the time of taking the oath of office, ; first message to congress, ; message to first session of twelfth congress, ; his message at second session of twelfth congress, ; elected president, . _see index_, vols. , . magruder, patrick, chosen clerk of the house, ; elected clerk of the house, . _see index_, vol. . magruder, allan b., senator from louisiana, . malbone, francis, senator from rhode island, , ; decease of, . _maritime defence_, bill relative to, read twice in senate, . marion, robert, representative from south carolina, , , ; on the remission of certain fines on emigrants from cuba, , . _see index_, vol. . marshall, j., letter to mr. king, . _see index_, vols. , . _maryland_, vote for president in , ; in , , . _massachusetts_, vote for president in , ; in , , ; resolutions relative to a war with great britain, . masters, josiah, representative from new york, . _see index_, vol. . mathers, james, appointed sergeant-at-arms, by the senate, ; chosen sergeant-at-arms of the senate, . matthews, vincent, representative from new york, , . mathewson, elisha, senator from rhode island, , , , . _see index_, vol. . maxwell, george c., representative from new jersey, . mcbride, archibald, representative from north carolina, , , , , . mccoy, william, representative from virginia, , . mccreery, william, representative from maryland, ; presents petition of citizens confined in the jails at carthagena, south america, . _see index_, vol. . mckee, samuel, representative from kentucky, , , , , ; on foreign relations, ; against a naval establishment, ; on the bill laying an embargo, ; on an increase of the navy, . mckim, alexander, representative from maryland, , , , , ; presents petition of american prisoners in carthagena, ; on miranda's expedition, ; on the torpedo experiment, ; on reduction of the navy, ; on disbanding the master commandants in the navy, ; in favor of the admission of mississippi, ; on privateer pensions, . mckinley, william, representative from virginia, . _medals and prize money_, for the officers and crew of the constitution, reported on, . _mediterranean trade._--_see index_, vol. . meigs, return jonathan, jr., senator from ohio, , , ; resigns his seat in the senate, . _memorial_, from citizens of new york relative to the embargo, &c., ; remarks, . _meridian, a_ first, report on the establishment of, . _message_ of president jefferson at second session of the tenth congress, ; on expenses of foreign intercourse, ; of president madison at first session of eleventh congress, ; of president madison at second session, eleventh congress, ; communicating circular of f. j. jackson, ; with report of secretary of state relative to tombigbee and alabama rivers, ; of president madison at third session of eleventh congress, ; confidential from the president to the senate in secret session, ; relative to reparation for the attack on the frigate chesapeake, ; relative to the battle of tippecanoe, ; and documents relative to the hostile policy of great britain, ; on the hudson river and lake ontario canal, ; relative to british intrigues to dismember the union, ; relative to a temporary embargo, ; relative to the battle of tippecanoe, ; with proceedings of a convention in orleans territory, ; do. with documents relative to british intrigues, ; relative to an embargo, ; on affairs with great britain, ; and documents relative to florida, ; annual to both houses of congress, ; communicating the capture of the macedonian and frolic, ; and documents relative to the capture of british vessels on lake erie, ; communicating captures and destruction of the java, ; with documents relative to the capture of the frigate macedonian, ; relative to conduct of british officers to persons taken in american armed ships, ; relative to impressed seamen, ; relative to the capture of the frigate java, ; relative to the orders in council, . _messages, presidential._--_see index_, vols. , , . metcalf, arunah, representative from new york, , . milledge, john, senator from georgia, ; chosen president _pro tem._ of the senate, . _see index_, vols. , , . miller, pleasant m., representative from tennessee, , , ; on the admission of the territory of orleans as a state, . _military force, additional._--_see army._ _military academy._--_see index_, vol. . _militia_, arming and classing of considered, . _see index_, vol. . milnor, william, representative from pennsylvania, , , , , , ; on an extra session of congress, ; on non-intercourse with great britain and france, ; on the sale of all the gunboats, ; on commercial intercourse with france and great britain, ; on the protection of american seamen, ; on the british intrigues, ; on increased pay of the army, ; on the imprisonment of american seamen, , . _see index_, vol. . _mining company_, bill for the incorporation of, in upper louisiana, ; bill passed, . _mint, establishment of._--_see index_, vols. , . _miranda's expedition._--in the house, petition of thirty-six american citizens confined at carthagena, in south america, under sentence of slavery, ; referred, ; report of committee, ; resolution of committee considered, ; postponement moved, ; lost, ; an agreement on the resolution would involve the government in difficulty without answering any good purpose, ; it would tend to prove that the government had connection with the expedition, ; the persons had engaged themselves in foreign service, ; had been taken and condemned for piracy, ; appeal to humanity, ; such an appeal could not involve the government, ; the men had been deluded, ; they had been sufficiently punished, ; resolution lost, . resolution offered, that the president take measures to effect their liberation if satisfied they were involuntarily drawn into the enterprise, ; in this case to lean to the side of humanity is an act of great injustice and cruelty to society, ; it is not a question like redeeming our brethren from slavery in tripoli, but whether this government would lend its countenance to the class of men concerned in the expeditions of miranda and aaron burr, ; in passing this resolution we hold up a premium to vice, ; no justice in the proposed interference, ; a bounty should be allowed on the exportation of every man of similar principles, ; the spanish government never would release them until the government interfered, ; the only money necessary was to defray the expense of bringing them back, ; if the president has the power he has not chosen to exercise it, ; did not knowingly engage in this expedition, ; they declare they did not understand the nature of the expedition, ; reasons to show this, ; a judicial investigation was had in new york previous to embarkation, ; those who enlisted the men declare they were not informed of the object of the expedition, ; embarrassment of their situation, ; if the men were guilty they should not receive the benefit of the interposition of government, ; these appeals for mercy would apply better to the spanish government, ; subject of the greatest delicacy for the united states to interfere, ; statement of a lawyer, ; we should place the president in a very unpleasant situation, ; what has the british government done? ; have not the british subjects been liberated? ; what has been the situation of great britain to spain? ; what connection exists between the statements that have been made and the merits of the case? ; question lost, . _mississippi territory._--memorial of legislative council ; report on petition of citizens, . _see territories._ _mississippi, free navigation of._--_see index_, vol. . _missouri territory._--_see territories._ mitchell, john, letters relative to american prisoners, . mitchill, samuel l., senator from new york, ; on the repeal of the embargo act, ; representative from new york, , , ; on the ratio of representation, ; makes a report on the spanish american colonies, ; on the bill to enable the people of mississippi to form a state government, ; on imposing additional duties, ; on the temporary embargo bill, ; reports on an astronomical observatory, . _see index_, vols. , . monroe, james, number of votes for, as vice president, . _see index_, vols. , . montgomery, daniel, jr., representative from pennsylvania, . montgomery, john, representative from maryland, , , , ; on non-intercourse with great britain and france, ; on remission of certain fines on emigrants from cuba, ; against granting petition of elizabeth hamilton, ; reports on bank of the united states, ; against the claim of jared shattuck, . _see index_, vol. . moore, andrew, senator from virginia, ; on the repeal of the embargo act, . _see index_, vols. , . moore, nicholas b., representative from maryland, , , , . _see index_, vol. . moore, thomas, representative from south carolina, , , , , , . _see index_, vols. , . morgan, james, representative from new jersey, , . morrow, jeremiah, representative from ohio, , , , , , ; reports on the claim for military services in the old french war, . _see index_, vol. . morrow, john, representative from virginia, . _see index_, vol. . mosely, jonathan o., representative from connecticut, , , , , , ; on an additional military force, . _see index_, vol. . _mounted troops._--in the house, resolution presented to authorize an expedition of mounted volunteers against certain hostile indian tribes, ; the people have the will and power to extirpate these tribes or compel their surrender, ; duty of congress to organize this power and direct this will, ; since the defeat of braddock no campaign had been carried on with them suitable to bring them to reason, ; experience of the past, ; the work has been begun and should be completed, ; subject considered, ; resolutions relative to, offered, ; laid on the table, . mumford, gurdon s., representative from new york, , , ; on submission to the late edicts of england and france, ; opposes laying up of the frigates, ; on commercial intercourse with france and great britain, . _see index_, vol. . n _national university._--_see index_, vol. . _naturalization laws._--in the house, resolution relative to amending the law, offered, ; by the law the courts are prohibited naturalizing foreigners since the declaration of war, ; to persons who have taken their first papers the government is pledged, ; resolution referred, ; supplementary bill introduced, ; amendments offered, . _in the house._--motion to amend considered, ; motion lost, ; section depriving of his right any one who leaves the country for two years, lost, ; bill ordered to be engrossed, ; passage opposed, ; bill recommitted, . _see index_, vols. , . _naturalized citizens._--petition for protection, . _naval establishment._--bill relative to, read third time in the senate, . _in the house._--bill to employ an additional number of seamen and marines, considered; amendments propose immediate arming and manning all the armed vessels, ; president already authorized to fit out these vessels when the public service requires, ; if no occasion exists, the expense is a sufficient argument against it, ; take six months to prepare our ships, ; they are rotting now at the docks, ; if out at sea they might be useful, ; a naval force, the most effectual protection to our seaports, ; however small our naval force it should not be undervalued, ; a war with great britain could be carried on only by distressing her trade, ; if we had a navy it would furnish the strongest temptation to attack our seaports, ; moved to refer amendments of the senate to a committee of the whole, ; motion lost, ; no estimate accompanies this bill, ; this house as much right to judge of the force requisite as any other department, ; advantages that will accrue to the nation from a few fast-sailing frigates, ; what defence a few frigates would be could not be understood, ; our power of coercion is not on the ocean, ; sufficient evidence in history to warn the united states against a naval force, ; facts bearing on the case, ; economy is good in time of peace, but not for war, ; it is shocking doctrine that this country ought to have a navy competent to cope with a detachment of the british navy, ; england now sole mistress of the ocean, ; as well think of embarking a hundred thousand men to attack france on her soil, as of building ships enough to oppose the british navy, ; the question is whether we will call into actual service the little navy we possess, ; those attempting to argue in favor of this measure involve themselves in absurdities, ; these absurdities exposed, ; not wealth enough in this whole nation if each should give his all, to maintain our rights against great britain, ; at the close of the revolutionary war we had but one frigate, and the best thing we did was to give that away, ; the insult at savannah, ; would it be good policy to let our means of carrying on war on the ocean rot at our docks? ; why then should they not be manned? ; the expense of this measure will compel congress to borrow money, ; disadvantages of loans, ; on the score of protection to trade it is not proper to fit out a navy, ; this proposition a mere entering wedge, ; causes an extension of executive patronage which should be limited, ; nothing in the nature of the government or foreign relations to require a navy, ; not now discussing the propriety of raising a naval force for offensive purposes, ; an invasion, whether on land or water, touches equally the life-blood of every man, . _in the house._--bill to reduce the naval force read in committee, ; moved to strike out so much as provides that all the frigates but three shall be sold, ; moved to strike out the whole section, ; the navy should be put on the footing of the peace establishment, ; reform in the expenditure desired, ; other amendments proposed, ; motion to insert washington as a place for a navy yard carried, ; indefinite postponement moved, ; withdrawn, ; question to strike out so much as orders the sale of all the gunboats, ; mortifying to witness the events unfolding in the old world, and the paralyzing system going on in this country, ; some system should be adopted for the protection of our commerce, ; "millions for defence, not a cent for tribute," ; the vessels should be fitted out, ; motion to place the navy on the footing of , ; the system of the navy yards requires a thorough reform, ; mode of equipment referred to, ; a reform in the expense, not the abolition of the navy, was the great desideratum, ; what appearance would the passage of this bill present to the world, after the resolutions adopted at the commencement of the session? ; the _terrapin_ policy, ; no one can be insensible to the necessity of protection, ; consider the immense space exposed, ; the navy is at present sufficiently reduced, ; it is asked, what has the navy done? ; not that want of system at the navy yards which is complained of, ; the smaller vessels are in perfect repair, ; what mighty good has the army done by land? ; the effects of a naval force upon cornwallis, ; the people of the united states are destined to become a great naval power, ; object of the present reduction is to enable the government to dispense with loans and taxes, ; nothing can so tend to strangle the infant hercules of the american navy, as the injudicious manner in which that power has been attempted to be brought into action, ; the revenue necessary for a naval establishment is founded on commercial greatness, ; but we have changed and perverted all this, ; whence come these proceedings which we find? ; the reduction will not do any effectual service, ; comparative expenses of the navy under the several administrations, ; expenses of the marine corps, ; expenses of the navy yards, ; annual cost of a seaman, ; arguments considered, ; is it necessary to continue this establishment in its present state? ; when the united states had forty sail afloat and eight thousand seamen, they had no navy yards, ; our duty to commence a thorough investigation, ; examinations of the committee, ; repairs of the vessels, ; naval equipments, ; motion to strike out so much as orders the sale of all the frigates but three, lost, ; section relative to dismissal of seamen lost, . motion to strike out the section which reduces the marine corps considered, ; former price of rations, ; proportion of mariners to seamen, ; who are the true friends of the administration? ; section stricken out, ; motion to amend so as to disband the master commandants, ; reasons asked for, ; the proposition is preposterous, ; never been any reason assigned for the creation of these officers, ; this amendment called submission to the belligerents, ; our situation requires a war speech against somebody, ; well if our relative expenditures could be brought back to mr. adams' administration, ; amendments proposed, ; save an expenditure of near a million dollars, ; the original bill in a different form, ; amendment proposed to limit the number of seamen to fifteen hundred, ; this retrenchment in the navy will end in smoke, ; adams' administration made the only reform ever made in the naval establishment, ; reduction made by the act of , ; proceedings in , ; further debate, ; amendment moved, ; lost, ; original amendment passed, . _in the senate._--the bill relative to an increase of the navy considered, ; amendment proposed, authorizing the president to cause to be built, as soon as possible, a blank number of frigates, ; offered from a sense of duty to support the dignity, protect the rights, and advance the best interests of the country, ; if it be not the purpose of the government to engage in an open, actual, efficient war, or to place the nation in such a complete state of defence as to avert war from our readiness to meet it, then some of the measures of the present session are not only inexcusable, but nearly treasonable, ; what was the consequence of the course of the government in ? ; look at the case of the war with tripoli, ; then followed the decrees, ; commerce has been abandoned, ; what was the leading object of the adoption of the federal constitution in the northern parts of the union? emphatically to protect commerce, ; the only money paid into the treasury which can justly be placed to the exclusive credit of the commerce, is the sum retained in commerce; how, then, has she done every thing for the government? ; who are most interested in commerce; the growers of the articles, or the factors, or freighters employed in their exchange? ; exports of foreign productions constitutes a commerce which is the legitimate offspring of war, and expires with the first dawnings of peace, ; it is prosecuted chiefly by commercial cities east and north of the potomac, ; a navy can injure commerce, but cannot afford it protection, unless it annihilates the naval force of the adverse nation, ; these frigates are to be employed in destroying the commerce of the enemy, and not in fighting her armed vessels, according to the representations of gentlemen, ; bill concerning the naval establishment considered, ; moved to fill the blank of the first section with $ , ; a great question, involving, in this subject, to a considerable extent, the fate of a species of national defence, the most essential and necessary, ; if the infant naval establishment is put down, the majority of this house run a great risk of becoming the minority, ; it has been said this country is a great land animal, which should not venture into the water, ; the ocean is the farm of a great portion of our people, ; we are now going to war, to protect their rights, ; if great britain had not the canadas on our border, how could we attack or resist her? ; the naval establishment has been too much neglected, ; the committee ask what this house will do, principally toward establishing and perpetuating a respectable naval force, for the protection of the rights of the people exposed on the ocean, ; the adoption of a respectable naval establishment is deemed improper on the grounds of its enormous expense, and the inability of the nation to resist with effect, the immense naval power of great britain, ; its expense during eighteen years, ; an examination of the figures and statements, ; the average annual expense is little more than twice the amount of our economical civil list, ; less expensive than the military establishment, ; compare the service of the army with that of the navy, ; if the expenses have been extravagant, there is an opportunity through experience, to reform the abuse, ; a naval force the cheapest defence, ; compare its expense with that of permanent fortifications, ; the force proposed is sufficient to protect us on our own seas, and defend our ports and harbors against the naval power of great britain, ; such is the opinion of naval men, ; a triple force will be required by the enemy to put himself on a footing of equality with that of the united states, ; the force sent here must be relieved every three months, ; halifax is the only suitable port great britain has on this coast, ; great misconception on the subject of the british naval force, ; this force examined, ; only a limited number of ships can be directed by her towards a given point, ; her seamen, also, are limited, ; her pecuniary resources are limited, ; what number of vessels is she practically able to keep in commission? ; some oppose this bill, lest we should become too great a naval power, ; but a navy is said to be anti-republican, ; we are told that navies have ruined every nation that has employed them, ; objections to the bill, ; after the war is over, the navy will remain, ; the army will be disbanded, ; it is inexpedient to commence a permanent naval establishment, ; we are unprepared for it, ; we cannot protect our commerce on the ocean, ; the expenses of a naval establishment exceed the profits which arise from the commerce it protects, ; these expenses are a serious objection, ; what has the nation benefited for the past enormous expenditure? ; details of the expenditure at the washington navy yard, ; a navy will be the means of exciting many wars, ; consider the fate of all nations who have been famous for their navies, ; great britain must sink under the heavy pressure, ; our vessels may only tend to swell the present catalogue of the british navy, ; small ships are proper for the service of the united states, ; if we proceed to build a naval establishment, it may affect the destinies of this nation to the latest posterity, ; this nation is not inevitably destined to become a great naval power, ; reasons why a permanent establishment will prove ruinous, ; the proposed establishment cannot be maintained, without permanent internal taxes and a constant increase of public debt, ; navies have never been considered adequate to the complete protection of commerce, ; the situation of europe is in all respects different from ours, ; instructions of the virginia legislature to their senators in congress, in , ; establish a navy and this country may bid farewell to peace, ; our little navy has already contributed much towards the irritation which exists between us and england, ; the object in view is as ruinous to the finances of the people as it will be destructive to the peace of the nation, ; since the political revolution in , the question of building a navy has never before been presented directly to the consideration of congress, ; the united states cannot maintain a navy without oppression to the great mass of the community in the persons of tax-gatherers, ; the system as well as the expense objected to, ; _note_, ; the people will not support such a naval establishment, ; the advocates of a navy need not expect to cover the deformity and danger of the system, by telling the people they are the friends to the protection of commerce, ; the division of sentiment in the delegations from different states, ; search for examples in ancient and modern history, ; has the navy of britain ever been confined to the protection of her lawful commerce? ; the report has assumed principles as erroneous as they are novel, ; maritime commerce has only a coeval right of protection with other objects; still the greatest means and resources of the government have been devoted to its protection, ; it is asked how we shall contend with a maritime nation, without a navy? objections to the object in view answered, ; the nature of commerce, ; the value of commerce has been strangely misunderstood, ; but we have determined to defend it, ; we must employ the cheapest and most efficacious means of hostility we possess, ; if it is absurd to protect commerce by a navy, how much more so by an army, which costs more than a navy, ; the strongest recommendation of a navy to free governments has been that it was capable of defending, but not of enslaving, ; a navy, it is said, would terminate in an aristocracy or a minority, ; the constitution was formed by the union of independent states, that the strength of the whole might be employed for the protection of every part, ; an army the states can have without the union, but an adequate navy they cannot, ; the experience of the world, ; expenses of the navy, ; it is said our resources are insufficient for its equipment, ; the bill embraces two objects, ; one relates to the repairs and equipment of the ships in service; the other contemplates building ten additional frigates, and laying the foundation of a new naval establishment, ; as an abstract question, it is for the interest of the united states to begin the establishment, ; this proved by its connection with the great and essential interests of the country, ; commerce springs from our agriculture, and must be protected, ; while england and france have been contending for the mastery, we, with a suitable naval force and strict neutrality, might have pursued a gainful trade, ; this question must have an influence on our destiny favorable if decided negatively, and adverse if decided affirmatively, ; the constitution is not imperative with regard to regulating and protecting commerce, ; the general principles and remote consequences upon which this question has been considered, ; how it is proposed to protect commerce, ; from a naval power have flowed the most copious streams of human misery, ; the plunder of half the world has not sustained the british navy, ; a diversity of opinions has always existed on this subject, ; extraordinary that so much unreasonable jealousy should exist in regard to a naval establishment, ; the source of alarm is in ourselves, ; abundant security in the nature of our government against abuse, ; what maritime strength is it expedient to provide for the united states? ; three different degrees of power present themselves, ; these degrees considered, ; views of col. daviess, ; _note_, ; what was folly in may be wisdom now, ; blank filled with $ , , ; bill reported to the house, ; question on filling the blank for repairing with $ , , it was carried, ; question on agreeing to the report of the committee to strike out the section which contemplated building new frigates, ; the time inauspicious to begin a navy, ; our ships probably fall a prey to the superior force of england, ; the necessity and duty of a systematic protection of our maritime rights by maritime means, ; interest is our only sure and permanent bond of union, ; the national protection of our essential interests will be undertaken by the states if it is not by congress, ; the nature of the interest to be protected, and the nature of the protection to be extended, ; the locality of the interest, ; it is the leading interest of more than one-half, and the predominant interest of more than one-third of the union, ; comparison of our commerce with that of great britain, ; the permanency of this interest exhibits the folly and madness of its neglect, ; as to the nature of the protection, rights in their nature local can only be maintained where they exist, and not where they do not exist, ; the nature and degree of maritime protection, and our capacity to extend it, ; our exertions should be extended rather than graduated by the present exigency, ; there can be no mistake touching the branch of interest most precious to commercial men, ; some difference of opinion may arise touching the nature and extent of this naval force, ; is it a want of pecuniary or physical capacity? ; this policy will produce confidence at home and respect abroad, ; effect of the opposite policy, ; a navy never had and never could protect our commerce, ; every nation which has embarked in a naval establishment has eventually been crushed by it, ; the embarrassments of our commerce are not owing to a want of a navy, ; this establishment proposed could not be supported but by a ruinous expense, ; question on striking out carried, ; amendments offered to procure a dockyard, and to build four frigates, ; do. lost, ; bill ordered to a third reading, . _in the house._--bill from the senate considered, ; moved to add the word "teen," to "four," making fourteen gunships, ; time to try the question whether we are to have a navy, ; british arms cannot withstand american on the seas, ; four seventy-fours are mere mockery, ; can easily support such a force . should guard against being carried too far by the current of popular opinion, ; should authorize that force which can be prepared at the shortest notice, ; for what purpose are these ships to be built? ; where is your commerce to protect? ; the object of these vessels, then, is to fight your battles, ; moved to strike out all relating to seventy-fours, ; to introduce these ships would fix the policy of a navy upon the government, ; scene in the british metropolis, ; if in view of recent events a navy is not sustained, its case is hopeless, ; the constitution settles the policy of a navy, ; seventy-fours as compared with smaller vessels for service, ; protection due to every right, best mode to effect it, ; importance of a naval force attested on record, ; facts which we have in the case, ; is it for an infant nation to be deterred by a want of preparation? ; what were the preparations for the revolutionary war? ; a naval force the cheapest the nation can resort to for defence and protection, ; cost of the force, ; the different kinds of vessels proposed, ; the question is whether it is best to build any ships of the line or to confine our efforts to frigates, ; the objects for their employment to be considered, ; ships better for battle, frigates and sloops for cruisers, ; as we have no powerful ships, england can easily protect by convoy all her valuable fleets, ; it is said these ships would be blockaded, ; we are in a prepared state to build seventy-fours, ; motion to strike out seventy-fours negatived, ; motion to strike out seventy-fours, and insert frigates and sloops, carried, ; question on the passage of the bill, ; a navy will cost more than it ever will be worth to the nation, ; a kind of popular delusion at this time about a navy, ; further objections, ; bill passed, . _see index_, vols. , , . _navigation laws._--in the house, resolutions relative to vessels coming from ports to which our vessels cannot go and also sea-letter vessels offered, ; motion to refer to committee on commerce, ; investigation, the object of the resolutions, ; character of the propositions such as to require it, ; they are founded on permanent principles, to which the nation may adhere in every alternative, ; reference carried, . _negroes, kidnapping of._--_see index_, vol. . nelson, hugh, representative from virginia, , ; on rules and orders of the house, ; presents the petition of citizens of louisiana territory, ; on the temporary embargo bill, . nelson, roger, representative from maryland, , , ; on submission to the late edicts of england and france, ; presents a bill authorizing an increased naval force, ; favors the resolution for immediate measures to liberate american prisoners in carthagena, ; reports on petition of officers of the revolution, . _see index_, vol. . _neutral rights, violation of._--in the house, resolutions submitted, which are designed to vindicate the commercial rights of the united states against belligerents of europe, ; their introduction not inconsistent with the most friendly negotiation, ; high time these rights were vindicated or abandoned, ; upon what principles do the belligerents pretend to justify these commercial restrictions? ; not the true principle, ; what principles are more specifically asserted by great britain? ; the right to blockade by proclamation, ; the only principle we recognize, ; this right founded on the most arbitrary power, ; have we not the same right as great britain to prohibit trade? ; objected, that the adoption of the resolutions would lead to hostility, ; the resolutions, ; laid on the table, . _see index_, vol. . new, anthony, representative from kentucky, , ; on the claim of matthew lyon, . _see index_, vols. , , . newbold, thomas, representative from new jersey, , , , , , . _new hampshire._--vote for president in , ; in , , . _new jersey._--vote for president in , ; in , , . _newspapers._--three daily ordered for the house, . newton, thomas, representative from virginia, , , , , , ; on additional revenue cutters, , ; on permitting swedish and portuguese vessels to land, ; on the remission of certain fines on emigrants from cuba, ; against a committee on manufactures, ; relative to the conduct of the british minister, ; reports on the mortality of the troops near new orleans, ; on laying additional duties, . _see index_, vols. , . _new york._--vote for president in , ; in , , . nicholas, wilson cary, representative from virginia, , ; on the proceedings on counting the electoral votes, ; on non-intercourse with great britain and france, . _see index_, vols. , . nicholson, john, representative from new york, , , . _non-exportation, temporary._--bill passed senate, . _non-exportation in foreign bottoms._--in the house, the bill to prohibit the exportation, &c. of certain articles considered, ; bill is not what it professes to be, ; it denies commerce to neutrals, ; merely calculated to produce vexation and embarrassment at home, ; what are the intentions and objects of the bill as stated? ; only a part of a contemplated system of non-exportation, ; certain articles struck out, . _non-importation_, suspension of, report on, . _see index_, vol. . _non-intercourse._--_see intercourse._ _north carolina_, vote for president in , ; in , , . o _oaths._--_see index_, vol. . _observatory_, astronomical report on, . _ohio._--vote for president in , ; in , , . _ohio state government._--_see index_, vol. . _officers of the revolution_, report on petition of, . _officers, removal of._--_see index_, vol. . _offices, plurality of._--_see index_, vol. . ormsby, stephen, representative from kentucky, , . _ordinance of , action of indiana._--_see index_, vol. . _orleans territory._--_see territories._ p parker, nahum, senator from new hampshire, , , ; resigns his seat in the senate, . _see index_, vol. . pearson, joseph, representative from north carolina, , , , , ; on commercial intercourse with france and great britain, ; on an additional military force, . _pennsylvania._--vote for president in , ; in , , . _pennsylvania insurgents._--_see index_, vol. . _petitions, reception of._--_see index_, vol. , & _slavery_, vol. . pickens, israel, representative from north carolina, , ; on indian affairs, . pickering, timothy, senator from massachusetts, , , , ; on the repeal of the embargo act, ; on incorporating a bank of the united states, . _see index_, vols. , . pickman, benjamin, jr., representative from mass., , , ; on non-intercourse with great britain and france, ; moves to postpone the resolution relative to the apportionment of representation, . pike, capt. z. m., bill making compensation to, . _see index_, vol. . pinckney, c. c., number of votes for, as president, . piper, william, representative from massachusetts, , . pitkin, timothy, jr., representative from connecticut, , , , , , ; against immediate engrossment of the bill relative to the power of territorial governments, ; supports petition of elizabeth hamilton, ; reports on the establishment of a first meridian, ; on the ratio of representation, ; on the admission of the territory of orleans as a state, ; against the admission of mississippi, ; on commercial intercourse with france and great britain, ; on rules and orders of the house, ; on the british intrigues, ; on french spoliations, ; on pay of the army, ; on an additional military force, . _see index_, vol. . pleasants, james, jr., representative from virginia, , ; presents memorial of inhabitants of st. louis, ; on an additional military force, . poindexter, george, delegate from mississippi, , , , , , ; reports a bill relative to the power of territorial governments, ; proposes to have the bill engrossed at once, for a third reading, , ; on territorial government for mississippi, ; on the petition for a division of the mississippi territory, ; on the admission of the territory of orleans as a state, ; in favor of mississippi being admitted into the union, ; on indian affairs, ; on the bill to enable the people of mississippi to form a state government, ; on the admission of louisiana, . _see index_, vol. . pond, benjamin, representative from new york, , . pope, john, senator from kentucky, , , , , , ; on the repeal of the embargo act, ; on the enforcement of the embargo, ; on the occupation of florida, ; on incorporating a bank of the united states, ; on a recess of congress, . _see index_, vol. . porter, john, representative from pennsylvania, , , , . _see index_, vol. . porter, peter b., representative from new york, , , , , ; on the bank of the united states, ; reports relative to the continuance of the charter of the united states bank, ; on foreign relations, ; on the bill laying an embargo, . potter, elisha r., representative from rhode island, , , , ; on imposing additional duties, ; on an increase of the navy, . _see index_, vol. . posey, thomas, senator from louisiana, . _postage of newspapers._--_see index_, vol. . _post office._--_see index_, vol. . _potomac river, bridge._--_see index_, vol. . poydras, julien, delegate from the orleans territory, , , ; on the batture at new orleans, , . preble, commodore, letter of the secretary of the navy relative to a gold medal for, . _see index_, vol. . _presents to ministers._--_see index_, vol. . _presidency, vacancy in._--_see index_, vol. . _president_, certificate of election of, . _presidential election_, certificate of, . _presidential election in massachusetts._--in house, resolution relative to the mode in which it was conducted, ; the present course will make no difference in the result, but it should induce the house to consider the propriety of providing some mode of distinguishing between legal and illegal elections, . _previous question._--in the house, amendment offered to the rules, that when the previous question is ordered to be taken, upon the motion in question being put, every member who has not spoken shall be at liberty to speak once, ; this secures to every member the right to speak at least once on every question, ; what is to justify this measure of imposing silence? it is said the right of debate has been abused, ; the majority insist that the rule will not be abused, ; neither the journals of state legislatures nor the laws of parliament offered examples for this arbitrary proceeding, ; there is a difference between the freedom of debate and the abuse of it when you cannot get a decision without an exertion of physical strength, ; this has been our course several times, ; a debate is often prolonged to prevent a decision, ; if the majority abuse this responsibility, the people will correct it, . if the majority do not possess it under the constitution, it should not be given to them, ; the rule deserves the character of a _gag-law_ more than the sedition law ever did, ; this question affects the essential principles of civil liberty, and saps its hopes at the very foundation, ; the ground taken by those who oppose this proposition is, its necessity and convenience, ; these are the points which should be most vigilantly guarded, ; the subject is in some respects difficult to manage, ; a feeling in and out of the house unpropitious to an impartial debate, ; what is that principle of civil liberty which is amalgamated and identified with the very existence of a legislative body? ; the right of every individual member is in fact the right of his constituents, ; let not any man say this power will not be abused, ; the right to speak is an individual right, limit it as you please, consistent with its single exercise, ; it is not true that this power ever was, or ever can be, necessary in a legislative body, ; it may be sometimes convenient, ; the haste and clatter which always attends the close of a session is urged in favor of this measure, ; should a member, on great questions, be denied the privilege of speaking? ; to interdict the freedom of speech is a violation of right, ; freedom of speech is secured by the constitution, ; shall we be deprived of it when we come to this house? ; this rule has always been in practice, ; the principle is, that a majority at any time in this house can, by calling the previous question, cut off all debate, ; a new construction was given at the close of last session, by which this rule, which it is proposed to amend, was adopted, ; no such power ever before the last session exercised over the members, ; see journal of the first session of the third congress, ; reason of the introduction of the previous question, ; no necessity for it exists, ; amendment lost, ; further amendment proposed, ; rules adopted, ; _note_, . _privateers_, encouragement to--petition of citizens of new york for a reduction of duties on prizes, ; bill for encouragement of, . _captures_, petition relative to, ; a bill relating to captures, ; do. regulating pensions to persons on board private armed ships, ; duties on privateer prize goods, report on, ; documents referred to in the report, ; bill granting a bounty to, considered, ; passed, . _in the house._--bill to compensate officers and crew of our public vessels, for vessels of the enemy necessarily destroyed at sea, ; bill grows out of the case of the guerriere and constitution, ; principles of the hill unprecedented in any country, ; bill defended on the ground of expediency and precedent, ; inexpedient and unprecedented, . _in the house._--bill to provide pensions for persons disabled in private armed vessels, ; improper to adopt a principle so liable to abuse, ; a per cent. of wages had been, heretofore, reserved to provide a fund for this object, ; important services rendered by privateers, ; doubtful, ; bill recommitted, ; report on, . _in the house._--bill to encourage by remitting all claim to duties on captured goods, ; private armed vessels, encouragement of, bill for the, passed, . _proceedings, confidential_, in the senate, . _protective duties._--_see index_, vol. . _pro tem. appointment, duration of._--in the senate, will an appointment under a state executive to represent a state in the senate, cease on the first day of the meeting of the legislature, considered, ; resolution submitted, ; amendment moved and lost, ; resolution passed, . _public credit_, bill to provide for the support of, passed, . _public lands_, report on the cash system, . _public lands._--_see index_, vols. i, , . pugh, john, representative from pennsylvania, . _see index_, vol. . q _quakers, memorial of._--_see index_, vols. , , . _quartermaster's department._--in the house, a bill for the establishment of, from the senate, came up for its third reading, ; no necessity for this office, and that of a purveyor of public supplies, ; the great object is to provide for a quartermaster-general's department, instead of military agents, as employed at present, ; these agents, without much responsibility, had nearly controlled the whole war department, ; the duties of quartermaster-general and purveyor are very different, ; the former is next in consequence to the commander-in-chief, every movement of the army is first communicated to him, ; if not a purveyor of supplies during the revolutionary war, there was a clothier, who did nearly the same business, ; impossible to go to war without a quartermaster-general, ; bill passed, . quincy, josiah, representative from massachusetts, , , , , , ; on resolution relative to amending the act laying an embargo, ; on voting twelve additional revenue cutters, ; on submission to the late edicts of england and france, , ; on non-intercourse with great britain and france, ; relative to prosecutions for libel, ; on the call on the president for papers, ; on the conduct of the british minister, ; on the torpedo experiment, ; favors postponement of resolution relative to the apportionment of representation, ; offers a resolution relative to col. washington, ; on the ratio of representation, ; on the admission of the territory of orleans as a state, ; against the admission of mississippi, ; on commercial intercourse with france and great britain, ; on laying additional duties, ; on rules and orders of the house, ; on a quartermaster's department, ; in favor of a naval establishment, ; on the british intrigues, ; on the temporary embargo bill, ; on the temporary embargo bill, ; moves an amendment to the bill declaring war with great britain, ; on the pay of the army, ; on the policy of the war, ; on encouragement to privateer captures, ; on non-importation in foreign bottoms, . _see index_, vol. . r randolph, john, representative from virginia, , , , , ; on proceedings on counting electoral votes, ; on counting blank ballots, ; on a vote of approbation of the conduct of the executive, ; on postponing do., ; on miranda's expedition, , ; on the batture at new orleans, ; offers a resolution relative to the decease of colonel washington, ; reports a bill for the reduction of the naval establishment, ; on the future naval establishment, ; on the reduction of the marine corps, ; on disbanding the master commandants, ; on reduction of the navy, ; on the claim of matthew lyon, ; on the expenditure of public money, ; against the bill for the government of the territory of louisiana, ; on foreign relations, , , ; on mode of relief of caraccas, ; on the bill laying a temporary embargo, , ; on pay of the army, ; on the imprisonment of american seamen, , ; on an additional military force, . _see index_, vols. , . _rangers for the frontier_, bill to raise passed in the senate, . rea, john, representative from pennsylvania, , , , . _see index_, vol. . reed, philip, senator from maryland, , , , , , . _see index_, vol. . reed, william, representative from massachusetts, , . _report_, on the petition of citizens engaged in miranda's expedition, and confined in the jails at carthagena, ; in senate relative to foreign armed vessels, ; of secretary of treasury relative to barred claims, ; on the letter of i. a. coles, ; on claim of elizabeth hamilton, ; on the claim of alexander scott, for indian depredations, ; on the mortality of the troops at terre aux boeuf, ; on the conduct of general wilkinson, ; on extending charter of the bank, ; on the claim of general wilkinson, ; on the claim for services in the old french war, ; on the spanish american colonies, ; with amendments to the report on memorial of legislative council of mississippi for admission as a state, ; relative to the pay of the officers and soldiers of the battle of tippecanoe, ; on sundry divorces in the district of columbia, ; on the disclosures of john henry, ; _note_, ; relative to the cumberland road, ; relative to the conduct of judge toulmin, ; on an astronomical observatory, ; relative to amending the act for the government of the missouri territory, ; on the suspension of non-importation, . _representation, ratio of._--in the house, resolution to apportion one representative to forty-five thousand inhabitants offered, ; motion to postpone, ; better be decided at the next session, ; better to decide the ratio now than after the result of the census was known, ; if a law is now passed, the fractions would cause an alteration, ; this is an attempt to settle a principle before the facts are known, ; if postponed till after the census and a particular ratio should suit the three large states, they would carry it without regard to fractions in the small states, ; if made now it will enable the legislatures to district the states, ; extreme difficulty in settling it after the results of the census were known, ; its settlement heretofore had ended in a bargain between the members from the different states, ; laid on the table, ; question on filling the blank with the number of souls which should entitle to a representative, ; it should be filled before the result of the census is known, ; better if the bill declare that the house should consist of a certain number of members to be apportioned hereafter, ; a very important bill fixing the construction of a provision of the constitution, ; important considerations in favor of a large number, ; the present congress may fix the ratio, but it will not be obligatory upon the next congress, ; the bill premature, ; violation of the constitution to pass this bill, ; it establishes a ratio which must be abortive, ; the apportionment must be according to the numbers in each state, ; the numbers are as yet unknown, ; idea of its unconstitutionality unwarranted, ; bill fixes only the ratio, ; object of declaring the ratio is that the state legislatures may proceed to district their states, ; postponement opposed, ; postponement urged, ; bill laid on the table, ; question on filling the blank for the number of inhabitants to a representation, ; , moved, ; bill ordered to be engrossed for a third reading, . _see index_, vols. , . _reprisals on british commerce._--amendments to the bill declaring war, . _resignation, does it cause a vacancy?_--_see index_, vol. . _resolution._--to. repeal the embargo act, ; relative to counting electoral votes, ; relative to the time of the meeting of the house, ; relative to the expediency of continuing the embargo, ; relative to citizens engaged in miranda's expedition, ; relative to submission to the late edicts of england and france, ; relative to copies of public documents, ; relative to admission of british vessels in american ports, ; do., passed, ; relative to immediate measures for public defence, ; relative to counting electoral votes, ; relative to petitions respecting the presidential election in massachusetts, ; of thanks to speaker varnum, ; relative to the decease of senator malbone, ; relative to exiled cubans and their slaves, , ; relative to prosecutions for libel, ; relative to the decease of senator malbone, ; relative to the liberation of american prisoners confined at carthagena, ; on decease of samuel white, ; relative to the conduct of the british minister, ; relative to demands on great britain, ; do., withdrawn, ; relative to publishing the laws of louisiana in the english language, ; relative to barred claims, ; relative to the navigation laws, ; on the violation of neutral rights, ; relative to the batture at new orleans, ; calling on the president for papers, ; for the appointment of a committee of manufactures, ; vote on, ; relative to trade to the baltic, ; relative to a bank of the united states, ; relative to the establishment of a first meridian, ; relative to apportionment of representation, ; relative to the decease of col. washington, ; relative to secrecy in the senate, ; confidential from the house, ; amendments to do., ; on an amendment to the constitution relative to the removal of federal judges, ; of thanks to speaker varnum, ; relative to the burning of richmond theatre, ; relative to british intrigues, &c., ; relative to the decease of vice president george clinton, ; relative to a recess of congress, ; relative to the accounts of gen. wilkinson, ; on the bill declaring war, ; authorizing the president to address a proclamation to the inhabitants of canada, ; relative to extending the laws of the united states over whites in the indian territories, ; relative to the protection of american seamen, ; relative to increased military and naval force in present state of foreign relations, ; relative to memorial of legislative council of mississippi, ; relative to paying the officers and soldiers who served on the wabash, ; of inquiry relative to exciting the indians on the western frontier, ; relative to the pay of officers and soldiers in the battle of tippecanoe, ; relative to limitation of claims on the government, ; relative to virginia military bounty lands, ; committing nathaniel rounsavell to the custody of the sergeant-at-arms, ; discharging nathaniel rounsavell, ; relative to the removal of federal judges, ; of respect to the memory of vice president clinton, ; relative to the relief of caraccas, , ; relative to amendment of naturalization laws, ; of inquiry relative to violations of secrecy, ; relative to the occupation of florida, ; of inquiry relative to any proceedings respecting the country south of georgia, ; to supply each senator with newspapers, ; to inquire into the expediency of offering encouragement to privateers, ; of respect for the memory of john smilie, ; of honors to hull, decatur, jones, and elliott, ; relative to the capture of the guerriere, ; relative to the exemption of soldiers from arrest for debt, ; relative to authorizing an expedition of mounted volunteers, ; relative to sales of the public lands for cash, ; relative to the decease of smilie, ; relative to raising mounted rangers, ; relative to the land claims in mississippi territory, ; relative to encouragement of privateers, ; relative to virginia military bounty lands, ; calling for information relative to repeal of the decrees of france, ; of thanks to the speaker, ; for information relative to the navy yards, . _retaliation._--bill giving power to the president, read third time, ; passed, ; the bill, . _revenue cutters._--in the house, bill to authorize the employment of twelve additional, considered, ; this force necessary for the proper execution of the revenue laws, ; has any letter been received from the secretary of the treasury? ; information had been received directly from him, ; more than verbal information required to make the proceeding correct, ; never more than ten employed in the most flourishing times, ; no consequence to the house whether there had been a written communication, so the information come from the proper source, ; committee rise, ; engrossed bill read a third time, ; motion to recommit lost, ; bill passed, . rhea, john, representative from tennessee, , , , , , ; on an extra session, ; on the conduct of the british minister, ; favors postponement of the resolution relative to the apportionment of representation, ; on reduction of the navy, , ; on domestic manufactures, ; on indian affairs, ; on the bill to enable the people of mississippi to form a state government, . _see index_, vol. . _rhode island._--vote for president in , ; in , , ; resolutions relating to maritime defence, &c., ; admission of, _see index_, vol. . richards, jacob, representative from pennsylvania, . _see index_, vol. . richards, mathias, representative from pennsylvania, , , , . _see index_, vol. . richardson, william m., representative from massachusetts, , ; on the bill to authorize the people of mississippi to form a constitution, . _richmond theatre._--resolution in senate relative to the burning of, . ridgely, henry m., representative from delaware, , ; on an additional military force, . riker, samuel, representative from new york, . _see index_, vol. . ringgold, samuel, representative from maryland, , , . _roads post._--_see index_, vol. . roane, john t., representative from virginia, , , , , . roberts, jonathan, representative from pennsylvania, , ; on foreign relations, ; against a naval establishment, ; on the recall of absentees, . robertson, thomas bolling, representative from louisiana, ; in favor of an additional military force, ; on non-exportation in foreign bottoms, . robinson, jonathan, senator from vermont, , , , , , . _see index_, vol. . rodman, william, representative from pennsylvania, , . rogers, john b., letter with documents relative to impressed seamen, . root, erastus, representative from new york, , , . _see index_, vol. . ross, john, representative from pennsylvania, , ; moves an amendment relative to the inquiry respecting prosecutions for libel, , ; on the remission of certain fines on emigrants from cuba, , ; on the conduct of the british minister, . rowan, john, representative from kentucky, . _see index_, vol. . russell, john, representative from new york, . _see index_, vol. . ryland, herman w., letter to john henry, . s sage, ebenezer, representative from new york, , , , , . sammons, thomas, representative from new york, , , , , ; on the bill to authorize the appointment of additional brigadier-generals, . _see index_, vol. . _savannah, relief of._--_see index_, vol. . sawyer, lemuel, representative from north carolina, , , , , , ; against immediate arming of the public vessels, ; on the appointment of a committee of manufactures, ; on a naval establishment, . _see index_, vol. . say, benjamin, representative from pennsylvania, , ; presents memorials from officers of the revolutionary army in pennsylvania, . scudder, john a., representative from new jersey, . _seamen, american._--in the house, a resolution offered relative to an inquiry into the laws for the protection of american seamen, ; our laws materially defective on this subject, ; their object should be twofold--to protect _bona fide_ american citizens, and to prevent the abuse of those protections by citizens of other countries, ; case of an italian at baltimore, . _in the house._--resolution of inquiry relative to the seizure by great britain of persons fighting under the american flag and laying claims to them, &c., ; several cases had occurred, ; objections to the form and expression of the resolution, ; instance of many of the crew of the wasp, ; every man must be protected that is on board a ship of the united states, ; motion withdrawn and a substitute offered, ; vigorous retaliation should be made if our countrymen found in arms are treated as criminals, ; not a question whether such persons are british subjects or not, if they have been fighting our battles, ; naturalized foreigners should be protected the same as native citizens, ; expatriation, ; resolution agreed to, . _see index_, vol. . _seamen, regulation of._--bill for, ; passed, . _seat of government._--_see index_, vols. , , . seaver, ebenezer, representative from massachusetts, , , , , , . _see index_, vol. . _secret proceedings, publication of._--in the house, report of the committee directed to inquire whether there had been any violation of the secrecy imposed by the house considered, ; nathaniel rounsavell brought to the bar of the house and questioned, ; ordered into custody till further notice, ; letter from rounsavell, ; manner in which the information relative to the embargo was obtained without doors, ; explanations of members, ; rounsavell dismissed, . _in the house._--resolution offered to inquire if there had been a violation of the secrecy imposed, ; do. passed, . _secret proceedings._--confidential supplemental journal of, . _secretary of state._--his letters to gen. matthews and col. mckee relative to possession of florida, , ; do. to governor of georgia, . _sedition law._--in the house, resolution offered for an inquiry as to what prosecutions for libels had been instituted under the act to punish certain crimes against the united states, ; if the committee inquire in the case of libels at common law it is proper they should inquire in the other case, ; one member been a sufferer under the sedition law, ; resolution moved, ; amendment proposed relating to any private compensation to such sufferers, ; government could not rightfully inquire into this, ; the disclosure might be amusing if the house had power to make it, ; who compensated callender? ; prosecutions under the common law and the sedition law essentially different, ; who contributed to the gentleman from kentucky (lyon), ; this appears to be a proposition to aid a single individual, and by the amendment gentlemen seem anxious to prevent him from gaining more than he had paid, ; the public should know many of the circumstances of that case, ; the imprisonment, ; charge of libel in the indictment of lyon, ; what do these words amount to? ; the law was passed after the words were uttered, ; further facts in the case, ; amendment lost, ; amendment moved to inquire what compensation should be made to those who had suffered in consequence of the act to lay and collect a direct tax, ; where shall we stop if we tread back on the steps of each other? ; propriety of going the whole length of the principle, ; those who paid the tax should also be remunerated, ; this principle has not been assumed, ; where is the difference in the cases of any of these sufferers? ; is this house sitting as a body to remunerate those who violated the laws? ; moved to postpone indefinitely, ; the whole discussion of the sedition law turned on its constitutionality, ; if unconstitutional, can it be viewed in the same light as if constitutional? ; the subject of contribution considered, ; let the inquiry be made, ; what good purpose can it answer? ; under what clause of the constitution was capt. murray remunerated, ; duty of the house to make the inquiry, further debates, ; indefinitely postponed, . _seditious practices._--_see index_, vol. . _senate._--adjourns at close of second session of tenth congress, ; extra session of, ; adjourns, ; adjourns at first session, eleventh congress, ; adjourns at second session, eleventh congress, ; third session, eleventh congress adjourns, ; adjourns at close first session, twelfth congress, . sevier, john, representative from tennessee, , . seybert, adam, representative from pennsylvania, , , , ; in favor of a committee on manufactures, ; on the bank of the united states, ; against a naval establishment, ; on the case of nathaniel rounsavell, ; on the renewal of whitney's patent right, ; on the bill laying an embargo, , ; on the imprisonment of american seamen, , ; on an increase of the navy, . shattuck, jared, his claim, . shaw, samuel, representative from vermont, , , , , , . sheffey, daniel, representative from virginia, , , , ; on the batture at new orleans, ; offers resolutions relative to the batture at new orleans, ; supports petition of elizabeth hamilton, ; on the admission of the territory of orleans as a state, ; in favor of the admission of mississippi, ; on the imprisonment of american seamen, ; on an additional military force, . _slave trade._--memorial relative to, . _slaves, importation of._--_see index_, vol. . duties on imports. _slavery and slaves._--_see index_, vols. , , . sloan, james, representative from new jersey, ; favors the resolution for immediate measures to liberate american prisoners in carthagena, . _see index_, vol. . smelt, dennis, representative from georgia, , , , . _see index_, vol. . smilie, john, representative from pennsylvania, , , , , , ; opposes the resolution for immediate measures to liberate american prisoners in carthagena, ; against the immediate arming of the public vessels, ; on an extra session of congress, ; on the proceedings on counting the electoral votes, ; on non-intercourse with great britain and france, ; opposes the postponement of the resolution relative to the apportionment of representation, ; on the resolution relative to the decease of col. washington, ; on laying additional duties, ; presents memorial of managers of union canal company, ; on rules and orders of the house, ; on the british intrigues, ; on the case of nathaniel rounsavell, ; on mode of relief of caraccas, ; on the bill laying an embargo, ; decease of, . _see index_, vols. , , . smith, daniel, senator from tennessee, . _see index_, vols. , . smith, george, representative from pennsylvania, , , , , . smith, jeremiah k., representative from new hampshire, . _see index_, vol. . smith, john, senator from new york, , , , , . _see index_, vol. . smith, john, representative from virginia, , , , , , . _see index_, vol. . smith, samuel, senator from maryland, , , , , , , ; on the repeal of the embargo act, ; offers resolution relative to the mode of counting the electoral vote, ; on incorporating a bank of the united states, . _see index_, vols. , . smith, samuel, representative from pennsylvania, , , , ; on adherence of the senate to amendments to the bill respecting non-intercourse with great britain and france, . _see index_, vol. . _south carolina_, vote for president in , ; in , , . _soldiers of the revolution._--_see index_, vol. . southard, henry, representative from new jersey, , , , ; opposes the resolution for immediate measures to liberate american prisoners in carthagena, . _see index_, vols. , . stanford, richard, representative from north carolina, , , , , , ; on counting blank ballots, ; on prosecutions for libel, , ; on the conduct of the british minister, ; on foreign relations, ; on rules and orders of the house, . _see index_, vols. , . stanley, john, representative from north carolina, , , ; relative to the conduct of the british minister, . _state balances._--_see index_, vol. . stedman, william, representative from massachusetts, , , . _see index_, vol. . stephenson, james, representative from virginia, , , . _see index_, vol. . stevenson, archer, representative from maryland, , . _st. domingo._--_see index_, vol. . _st. louis_, memorial of inhabitants of, . story, joseph, representative from massachusetts, ; in favor of an immediate arming of the public vessels, . storer, clement, representative from new hampshire, . _see index_, vol. . stow, silas, representative from new york, , ; on the bill laying an embargo, ; on the temporary embargo bill, ; on pay of the army, ; in favor of building seventy-fours, ; on an additional military force, ; on privateer pensions, ; on war taxes, . strong, william, representative from vermont, , . stewart, philip, representative from maryland, , . sturges, lewis b., representative from connecticut, , , , , , ; on commercial intercourse with france and great britain, . _see index_, vol. . _suability of states._--_see index_, vol. . sullivan, george, representative from new hampshire, , . sumpter, thomas, senator from south carolina, , , . _see index_, vols. , . swart, peter, representative from new york, . _see index_, vol. . swoope, jacob, representative from virginia, , , . t taggart, samuel, representative from massachusetts, , , , , , . _see index_, vol. . tait, charles, senator from georgia, , , , . taliaferro, john, representative from virginia, , . _see index_, vol. . tallmadge, benjamin, representative from connecticut, , , , , , ; on the torpedo experiment, ; on establishing a quartermaster's department, ; on the resolution of the senate relative to the decease of the vice president, ; on an additional military force, ; on the causes of the war, . _see index_, vol. . tallman, peleg, representative from massachusetts, , . _taxes, war._--in the house, resolution to instruct the committee of ways and means to report a bill laying taxes for the support of the war, ; opposed, as impracticable, ; advocated because the house should redeem pledges of last session, ; unnecessary to lay taxes, ; impracticable to act on the subject at this session, ; further debate, ; resolution lost, . _taxes, direct and indirect._--_see index_, vol. . taylor, john, representative from south carolina, , , , ; opposes the resolution for immediate measures to liberate american prisoners in carthagena, ; on non-intercourse, ; on miranda's expedition, ; on non-intercourse with great britain and france, , , ; on the remission of certain fines, on emigrants from cuba, ; reports on the letter of i. a. coles, ; senator from south carolina, , , ; on incorporating a bank of the united states, ; reports in favor of postponing bills relative to the mississippi territory becoming a state, &c., ; on the memorial of citizens of new york, . _see index_, vol. . _tennessee_, vote for president in , ; in , , . _tennessee, admission of._--_see index_, vol. . _territorial governments, ordinance of ._--in the house, bill reported to take away from governors of territories the power of proroguing or dissolving their legislature, ; moved to engross for a third reading, ; a decision of a question of this kind should not be precipitated, ; the ordinance for the government of territories should be treated with as much delicacy as the constitution of the general government, ; this is a mistake; the ordinance is a mere statute, ; these ordinances should be regarded as a compact between the general government and the territories, ; questionable whether an alteration could be made without their consent, ; mature deliberation, not procrastination, was what was wanted, ; the ordinance is considered as a compact equally sacred with the constitution of the united states, and as unalterable, without the consent of the parties to it, ; opinion of st. george tucker, ; effect of taking away this power, ; taking away the power to prorogue would not deprive the governors of their veto on laws, ; now, if there is any misunderstanding, the governor sends them home, ; right of this house to pass the bill denied, ; condition of the cession by georgia, ; _note_, ; basis of the territorial governments, ; amendment proposed, ; two parts to the ordinance, ; opinion of judge tucker, ; special reason for the bill, ; this principle must have been adopted originally without any discussion, ; this was an objection to george iii., in the declaration of independence, ; opinion of judge tucker read, ; parties to the present compact, ; what was the policy of the ordinance, and what the object of its framers? ; if you have a right to repeal one part of the ordinance, you can another part, ; the constitution of the united states does not give to the people of the territories the same rights as the people of the states, ; the articles of this ordinance were enacted previous to the adoption of the constitution, and are made binding by that instrument, ; the old congress wisely reserved the right to control the people of the territories, ; the state of things now existing in mississippi noticed, ; what part of these articles is unalterable? ; the articles of ordinance and not the form of government, ; application of the opinion of judge tucker, ; situation of the people will be improved, ; whatever leads to the conclusion that the people are always wrong and the executive right, strikes at the root of republican institutions, ; facts respecting the people of mississippi, ; no proposition for the good of this territory, but has met the opposition of georgia, ; a compact exists between the united states and georgia, and let it be adhered to, ; indefinite postponement moved, ; carried, . _territory of louisiana._--in the house, bill for the government of the louisiana territory considered, ; moved to strike out the section requiring a freehold to be possessed by all voters, ; moved to amend by striking out every qualification but that of free white male citizens, &c., ; question considered, whether it is better to require voters to hold freehold property, or to suffer every man to possess the privilege who is twenty-one years old, ; life and liberty are superior to property, ; dearer to the poor man than all his property to the rich, ; impossible to carry the principle of equality to its fullest extent, ; remonstrance of the inhabitants of st. louis, . _territory of mississippi._--in the house, petition for the division of, ; moved to lay on the table, ; consent of three parties necessary to a division, ; the territory, georgia, and the united states, neither has consented, ; if the request was improper, the report of a committee would settle it, ; no harm can arise from the inquiry, ; certain facts might be inquired into, such as population, their character, &c., ; petition laid on the table, ; report in favor of admitting the mississippi territory into the union, ; have sufficient population before a representative is elected, ; orleans when admitted had a minor population, ; some respect due to the feelings of the eastern states, ; admission of one state during a session was sufficient, ; why not wait for the actual census of the territory? ; resolution agreed to, . _in the senate._--bill to authorize mississippi to form state government referred, ; report on, . _in the house._--bill to authorize the people of mississippi territory to form a state government, ; the population is sufficient, and authority has heretofore wisely been conferred in all such cases, ; particulars respecting the limits, ; amendment offered relative to the territory of west florida, ; debate thereon, ; carried, ; bill passed, ; bill to authorize the people to form a state government considered, ; inexpedient to give a territory with so small a population an equal representation in the senate with a state, ; proposes to include mobile, now in possession of a foreign power, ; population greater than represented, ; anxious to bear their share of the burdens of the war, ; bill ordered to third reading and passed, . _territory of orleans._--in senate, bill to authorize the territory of orleans to form a state government, ; various amendments proposed, ; bill read a third time, . _in the house._--bill for admitting the territory of orleans as a state into the union, ; the bill proposes to include in the state all that part of the territory lying west of the perdido, the right to this part is declared to be subject to negotiation; if it becomes a state, this right of negotiation will be taken from the president, ; the necessity of a state government calls for this measure, ; it is a point of country particularly important to the union, ; power of self-preservation necessary to the people there, ; the objection of title does not meet the merits of the bill, ; not ready to transfer the inheritance purchased by the blood of our fathers to foreigners, ; doubtful if , inhabitants in the territory, ; these people are a part of the nation, and should so be considered, ; the great object is to make us one people, . have we constitutional authority to legislate on this subject, and is it expedient so to do? ; by the enacting clause of our constitution it was ordained and established for the _then_ united states, ; its framers and those who adopted it never intended its immediate operation should extend to any people that did not then, or should not thereafter, be included in the limits of the united states, ; they did not intend to enter into partnership of this sort, ; orleans was not within these limits when the constitution was established, ; upon this principle we may form all the territories into states, then what will become of the old united states? ; the constitution requires that senators should have been citizens nine years, a period longer than the people of this territory have belonged to the union, ; it is said, several new states have been formed by congress, ; these were formed out of territories within the limits of the union on the adoption of the constitution, ; even if constitutional, it is an extremely impolitic and inexpedient measure, ; two applications pending, neither has sufficient population, ; it is objected to this bill that the population of the state will not be american, ; what power have we to negotiate about the territory of any of the states? ; objections to annexing west florida to orleans, ; amendment moved to consolidate the orleans and mississippi territories, ; a stipulation in the treaty of cession, ; to waste the territories would violate previous engagements, ; the consent of georgia would be necessary, ; meaning of the constitution, ; the right to become states was conceded to the old territories before the adoption of the constitution, ; the article of the constitution was unnecessary unless it applied to new territory, ; not for us to consider who shall be their senators, ; mobile and orleans should not be under the same government, ; the trust embraced in the amendment is too extensive for a local state government, ; other geographical limits proposed, ; amendment disagreed to, ; claims of the united states respecting the western limits of the orleans territory, ; this bill extends jurisdiction over the province of texas, ; remarks relative to arranging the western boundary, ; the principle of this bill materially affects the liberties and rights of the whole people of the united states, ; it would justify a revolution in this country, ; if this bill passes, the bonds of the union are virtually dissolved, ; called to order, ; repeated, that its passage is virtually a dissolution of the union, &c., ; decision of the speaker on the propriety of the expression demanded, ; decision that a portion of the remarks are in order, and a portion not, ; appeal from the decision, ; speaker not sustained, ; the separation of the states resulting from a violation of the constitution, is a necessity deeply to be deprecated, ; the bill assumes that this national government without recurrence to conventions of the people or legislatures of the states, can admit new portions in countries out of the original limits of the united states, ; if this authority is delegated by the constitution, it results from its general nature as from its particular provisions, ; the preamble examined, ; its meaning, the extent of the country at that time, louisiana not then in the limits, ; if any particular power exists, it is the treaty-making power, ; this power examined, ; this question goes to the very seat of the power and influence of the present members of the union, ; the term, "new states," applies to territory within the then limits of the union, ; evidence of history, ; resolution passed, july d, , is further authority, ; its meaning, ; the evidence should be very strong to prove the terms intended something else besides this obvious purpose, ; its meaning can be proved, both affirmatively, with regard to new states from the existing limits, and negatively, against new states without those limits, ; this assertion examined, ; is it possible that such a power, if it had been intended to be given by the people, should have been left dependent upon the effect of general expressions, ; it is not so much a question concerning the exercise of sovereignty, as it is who shall be sovereign, ; the treaty-making power has limitations, ; the situation of new orleans, ; the moral and political consequences of usurping this power, ; what is this liberty of which so much is said? ; no fear of analyzing the nature of this love of our union, ; this bill, if passed is a death-blow to the constitution, ; the bill will neither justify a dissolution of the union nor lead any citizen attached to it to contemplate it, ; our authority to erect new states is proved by theory and practice, ; the articles of confederation are evidence, ; similarity of the constitution and the articles of confederation in many sections, ; further debate, ; indefinite postponement lost, ; bill passed, . _territories._--_see index_, vols. , , . _territory, missouri_, report relative to amending the act for the government of, . thomas, jesse b., delegate from indiana territory, ; moves the appointment of a committee relative to a division of the indiana territory, ; makes a report relative to a division of the indiana territory, . thompson, john, representative from new york, , , , . _see index_, vols. , . thurston, buckner, senator from kentucky, , , . _see index_, vol. . tiffin, edward, senator from ohio, ; reports engrossed bill on non-intercourse with great britain, . _see index_, vol. . _tippecanoe, battle of_, message communicating, . _title of president._--_see index_, vol. . _torpedo experiments._--in the house, letter from robert fulton, ; the author a man of science and successful experiment, ; letter referred, ; report on do., ; resolution to grant mr. fulton use of the hall for a public lecture, ; the hall is exclusively appropriated to legislative purposes, ; an injurious precedent, ; hold out the idea that the house sanctioned it, ; words "public lecture" struck out and "explaining" inserted, ; bill making an appropriation for an experiment on the practical use of the torpedo, or submarine explosion, ; is this such a proposition that we can step out of the ordinary course of encouragement given to inventors? ; is the experiment worthy to be made? ; this resolution appropriates money for an experiment, ; nothing new in it, ; the invention of david bushnell, ; difference between the two, ; all-important to defend our ports and harbors, ; mr. fulton has little merit in originating this thing, ; alarm occasioned to the british during the revolutionary war, ; verses of hopkinson, ; if one of these machines in a hundred should take effect, the object would be perfectly gained, ; nothing result from it of service to the country, ; if a fair experiment is intended, the appropriation is totally inefficient, ; why has not the invention been patronized by the french, ; an actual experiment should be made on an enemy's vessel, ; experience during the war, ; the experiment should not be made, ; bill passed, . toulmin, judge, report relative to the conduct of, . tracy, uri, representative from new york, , , , , . _see index_, vol. . _treason and sedition_, bill to define. _see index_, vol. . _treasury notes_, issue authorized, ; bill to authorize the issue of, . _treaty with great britain._--_see index_, vol. . trigg, abram, representative from virginia, . _see index_, vols. , . troup, george m., representative from georgia, , , , , , ; opposes immediate engrossment of the bill relative to the power of territorial governments, , ; on the ordinance of , , ; moves to postpone the bill relative to the ordinance of , ; in favor of immediate arming of the public vessels, ; on the petition relative to the mississippi territory, ; on the batture at new orleans, ; on violation of neutral rights, ; on the british intrigues, , ; on pay of the army, . _see index_, vol. . turner, charles, jr., representative from massachusetts, , , , . turner, james, senator from north carolina, , , , , , . _two-thirds vote._ _see index_, vol. . u upham, jabez, representative from massachusetts, , , . _see index_, vol. . _union_, dissolution of, . _ursuline nuns_ of new orleans, petition of, . v van allen, james i., representative from new york, _see index_, vols. , , . van cortlandt, philip, representative from new york, . _see index_, vols. , , . van cortlandt, pierre, jr., representative from new york, , . van dyke, nicholas, representative from delaware, , , . _see index_, vol. . van horne, archibald, representative from maryland, , , , . _see index_, vols. , . van rensselaer, killian k., representative from new york, , , , . _see index_, vols. , . varnum, joseph b., representative from massachusetts, , , , ; on measures of non-intercourse, ; acknowledges the thanks of the house, ; elected speaker, , ; remarks, ; against petition of elizabeth hamilton, ; acknowledges the thanks of the house to him as speaker, ; senator from massachusetts, , . _see index_, vols. , , . _vermont_, vote for president in , ; in , , . verplanck, daniel c., representative from new york, . _see index_, vol. . _vessels registering and clearing._--_see index_, vol. . _veto, executive_, on the bill providing for the trial of small causes in the district courts, . _vice president_ clinton, decease of, . _virginia_ bounty lands, resolution relative to, , . _virginia_, vote for president in , ; in , , . _vote of approbation._--in the house, to approve the conduct of the president, considered, ; an alteration has taken place in the manner of doing business at the commencement of congress, ; message of jefferson to congress, ; wisdom of suspending the speech of the president to congress, ; an answer to the address was in fact the greatest opportunity which the opposition to the measures of the administration had of sifting and canvassing those measures, ; whatever goes to take away this opportunity, goes to narrow down the minority, or opposition, ; the present is an occasion which behoves this house to express its opinion on public affairs, ; it is due to the executive, ; resolution moved, ; this proposition contemplates a novelty in our legislative proceedings, ; where would it end if the house were now to make a solemn resolution, approving the conduct of the president, ; to adopt the resolution at this time would not comport with the object of the mover, ; the conduct of the last administration in this respect met the approbation of the country, ; postponement moved, ; in his proclamation the president has deserved well of his country, ; is this an abstract proposition? ; is this house to have no influence on the conduct of the executive? ; the president is condemned by some for his proclamation, ; how the non-importation act was repealed, ; prospect of good terms with great britain, ; this act of duty which the president has done is only an ordinary one, ; why then give him our approbation? ; indefinitely postponed, . w _war, declaration of, against great britain._--confidential message sent to the senate by the president, ; do. from the house, ; the act declaring war as passed by the house, ; read twice and referred, ; debated in committee, ; amendment proposed, ; motion to postpone to the first monday in november, ; a general view of the situation of the country--of its means to carry on offensive operations, as well as to defend itself, and of the situation and relative strength of the country we are required to make war upon, , ; our situation upon the lakes to detroit and fort malden, ; motion lost, ; amended to authorize privateering on great britain and france, ; bill passed on committee, ; reported to the senate, correctly engrossed, ; moved to postpone to october thirty-first, ; not a time to declare war, ; the senate should not act from passion or any considerations which do not arise out of an extended and distinct view of the interests of the country, ; neither the government nor the people had expected or were prepared for war, ; you have an immense property abroad, a great portion in england, and part on the ocean, hastening home, ; the question of war had been doubtful till the present moment, ; it was supposed they were obliged to advance, or become the object of reproach and scorn to friends and foes, ; if we were doubtful as to war, how could, how was it to be known by merchants and others that the nation would be wantonly plunged in war, ; we should select the time when the first shock should be least disastrous and best resisted, ; what should hurry us into war, ; question on postponement lost, ; motion to adjourn carried, . _in the house._--bill to declare war against great britain reported, ; read first time, ; opposed, ; question on the rejection of the bill lost, ; amendment moved, ; lost, ; moved to recommit the bill and amendment, ; ordered to be engrossed and passed, ; returned from the senate with amendments, ; moved to lay on the table, ; lost, ; moved to postpone indefinitely, ; lost, ; moved to postpone until october, ; lost, ; moved to postpone to july, ; lost, ; senate amendments concurred in by the house, ; signed by the president, . waterhouse, benjamin, petition relative to inoculation of the army, . weakley, robert, representative from tennessee, , , . wellesley, lord, extracts from his letters to mr. pinkney, . _west point_ or washington as a location for a military academy, . wharton, jesse, representative from tennessee, ; presents petitions from the officers of the revolutionary army, . _see index_, vol. . wheaton, laban, representative from massachusetts, , , , , ; on the admission of the territory of orleans as a state, ; on pay of the army, ; on the policy of the war, . white, leonard, representative from massachusetts, , . white, samuel, senator from delaware, , , . _see index_, vols. , . whitehill, robert, representative from pennsylvania, , , , , , . _see index_, vol. . whitman ezekiel, representative from massachusetts, , . whiteside, jenkin, senator from tennessee, , , . _whitney's patent right to the cotton gin; renewal of._--in the bill for the relief of eli whitney considered, ; moved to strike out so much as related to a renewal, ; although the bill assumed the character of a private act, it involved considerations of great national importance, ; source of authority over the subject, ; here is a delegation of power to promote science and art, and a description of the _mean_ authorized to be employed, ; the distinction between the _mean_ and the _object_ should be kept constantly in view, ; this renewal is not intended or calculated to promote science or useful arts, ; the object of the constitution is attained by granting monopolies for a limited time to _future_ and not to _past_ inventions, ; the passage of the bill is a departure from the intent of the constitution, ; the operation of this bill will levy a tax on georgia and mississippi and louisiana territories only, which is not a uniform tax throughout the country, ; the right of using has been purchased by the legislatures of some of the states, ; the patent expired four years ago, and an unqualified right then vested in the people of the united states, ; the famous case of miller _vs._ taylor, ; english decisions, ; has congress the right to divest the people of their right? ; the passage of this bill will render justice to whitney, ; he has received but trifling compensation, ; case of whitney _vs._ carter, ; absolute necessity of the gin to bring the cotton of the united states to market, ; extract from edwards' history of the west indies, ; the case of arkwright, ; committee rose, . widgery, william, representative from massachusetts, , ; on the temporary embargo bill, ; on the imprisonment of american seamen, ; on an increase of the navy, . wilbour, isaac, representative from rhode island, ; supports the resolution for immediate measures to liberate american prisoners in carthagena, . _see index_, vol. . wilkinson, gen. james, letter to speaker of the house, ; claim of, report on, . _see index_, vol. . williams, david r., representative from south carolina, , , ; on submission to the late edicts of england and france, ; opposes the resolution for immediate measures to liberate american prisoners in carthagena, ; against immediate arming of the public vessels, ; on an extra session of congress, ; on establishing a quartermasters department, ; against a naval establishment, ; on the temporary embargo bill, ; on increased pay of the army, ; on pay of the army, ; on an additional military force, . _see index_, vol. . williams, marmaduke, representative from north carolina, . _see index_, vol. . wilson, alexander, representative from vermont, . _see index_, vol. . wilson, james, representative from new hampshire, , , . wilson, nathan, representative from new york, . wilson, thomas, representative from virginia, , . winters, elisha, petitions for the reward for destroying mason, the mississippi river pirate, . witherspoon, robert, representative from south carolina, , , ; reports on the claim for indian depredations, . _witnesses, payment of in impeachment cases._--_see index_, vol. . worthington, thomas, senator from ohio, , , . _see index_, vol. . wright, robert, representative from maryland, , , ; on the ratio of representation, ; on the admission of the territory of orleans as a state, ; on an amendment to the constitution relative to the removal of federal judges, ; in favor of the admission of mississippi, ; on indian affairs, ; on foreign relations, ; on rules and orders of the house, ; on the british intrigues, . _see index_, vols. , . wynn, richard, representative from south carolina, , , , , , . _see index_, vols. , . y _yeas and nays in the senate._--on the bill for the enforcement of the embargo act, ; on bill to prohibit commercial intercourse with great britain, ; on postponement of the bill for additional duties, ; on bill to provide for the support of public credit, ; on resolution relative to the conduct of the british minister, ; on the bill relative to non-intercourse with great britain and france, ; on the adherence of the senate to amendments to the bill respecting non-intercourse with great britain, ; on striking out first section of the bill to establish a national bank, ; on the resolution relative to publishing the laws of louisiana in the english language, ; on motion to postpone further consideration of bill to establish a national bank, ; on bill to authorize the territory of orleans to form a state constitution, ; relative to the admission of orleans territory, ; on striking out first section of bill to incorporate a united states bank, ; on resolution relative to secrecy, ; on bill to raise an additional military force, ; on the bill relative to the limits of louisiana, ; on removing the injunction of secrecy relative to a temporary embargo, ; on a temporary embargo, ; on house bill relative to temporary non-exportation, ; on a recess of congress, ; in committee on the declaration of war, ; on the declaration of war with great britain passing to third reading, ; on the issue of treasury notes, ; on the bill to authorize the president to accept volunteers, ; on resolutions relative to the canadas, . _in the house._--on the motion to postpone the bill relative to the ordinance of , ; on the bill to authorize the president to employ additional revenue cutters, ; on the resolution prohibiting the admission of british vessels into american ports, ; on bill relative to non-intercourse with great britain and france, ; on the resolution relative to the conduct of the british minister, ; relative to the bill respecting the convoy system, ; on the bill to continue the charter of the bank of the united states, ; _note_, ; on the bill relative to commercial intercourse with france and great britain, ; in committee on resolution to raise additional troops, ; on the bill to enable the people of mississippi to form a state government, ; on the admission of louisiana, ; on the bill declaring war with great britain, ; do. on the amendments of the senate to the bill declaring war, &c., ; in committee on the bill to authorize the president to take possession of territory south of mississippi, ; on an additional military force, ; on the bill for an additional military force, . a list of new works in general literature, =published by d. appleton & co., & broadway, new york.= * * * * * _complete catalogues, containing full descriptions, to be had on application to the publishers._ =agriculture and rural affairs.= boussingault's rural economy, the poultry book, illustrated, waring's elements of agriculture, =arts, manufactures, and architecture.= appleton's dictionary of mechanics. vols. appleton's mechanics' magazine. vols. each, allen's philosophy of mechanics, arnot's gothic architecture, bassnett's theory of storms, bourne on the steam engine, byrne on logarithms, chapman on the american rifle, coming's preservation of health, cullum on military bridges, downing's country houses, field's city architecture, griffith's marine architecture, gillespie's treatise on surveying, haupt's theory of bridge construction, henck's field-book for r. r. engineers, hoblyn's dictionary of scientific terms, huff's manual of electro-physiology, jeffers' practice of naval gunnery, knapen's mechanics' assistant, lafever's modern architecture, lyell's manual of geology, " principles of geology, reynold's treatise on handrailing, templeton's mechanic's companion, ure's dict'ry of arts, manufactures, &c. vols. youmans' class-book of chemistry, " atlas of chemistry, cloth, " alcohol, =biography.= arnold's life and correspondence, capt. canot, or twenty years of a slaver, cousin's de longueville, croswell's memoirs, evelyn's life of godolphin, garland's life of randolph, gilfillan's gallery of portraits. d series, hernan cortez's life, hull's civil and military life, life and adventures of daniel boone, life of henry hudson, life of capt. john smith, moore's life of george castriot, napoleon's memoirs. by duchess d'abrantes, napoleon. by laurent l'ardèche, pinkney (w.) life. by his nephew, party leaders: lives of jefferson, &c. southey's life of oliver cromwell, wynne's lives of eminent men, webster's life and memorials. vols. =books of general utility.= appletons' southern and western guide, " northern and eastern guide, appletons' complete u. s. guide, " map of n. y. city, american practical cook book, a treatise on artificial fish-breeding, chemistry of common life. vols. mo. cooley's book of useful knowledge, cust's invalid's own book, delisser's interest tables, the english cyclopaedia, per vol. miles on the horse's foot, the nursery basket. a book for young mothers, pell's guide for the young, reid's new english dictionary, stewart's stable economy, spalding's hist. of english literature, soyer's modern cookery, the successful merchant, thomson on food of animals, =commerce and mercantile affairs.= anderson's mercantile correspondence, delisser's interest tables, merchants' reference book, oates' (geo.) interest tables at per cent. per annum. vo. " " do. do. abridged ed. " " per cent. in'st. tables, " " abridged, smith's mercantile law, =geography and atlases.= appleton's modern atlas. maps, " complete atlas. maps, atlas of the middle ages. by koeppen, black's general atlas. maps, cornell's primary geography, " intermediate geography, " high school geography, =history.= arnold's history of rome, " later commonwealth, " lectures on modern history, dew's ancient and modern history, koeppen's history of the middle ages. vols. " the same, folio, with maps, kohlrausch's history of germany, mahon's (lord) history of england, vols. michelet's history of france, vols. " history of the roman republic, rowan's history of the french revolution, sprague's history of the florida war, taylor's manual of ancient history, " manual of modern history, " manual of history. vol. complete, thiers' french revolution. vols. illus. =illustrated works for presents.= bryant's poems. illus. vo. cloth, " " cloth, gilt, " " mor. antique, gems of british art. engravings. vol. to. morocco, gray's elegy. illustrated. vo. goldsmith's deserted village, the homes of american authors. with illustrations, cloth, " " cloth, gilt, " " mor. antqe. the holy gospels. with designs by overbeck. vol. folio. antique mor. the land of bondage. by j. m. wainwright, d.d. morocco, the queens of england. by agnes strickland. with portraits. antique mor. the ornaments of memory. with illustrations. to. cloth, gilt, " " morocco, royal gems from the galleries of europe. engravings, the republican court; or, american society in the days of washington. portraits. antique mor. the vernon gallery. engr's. to. ant. the women of the bible. with engravings. mor. antique, wilkie gallery. containing splendid engravings. to. antique mor. a winter wreath of summer flowers. by s. g. goodrich. illustrated. cloth, gilt, =juvenile books.= a poetry book for children, aunt fanny's christmas stories, american historical tales, uncle amerel's story books. the little gift book. mo. cloth, the child's story book. illus. mo. cl. summer holidays. mo. cloth, winter holidays. illus. mo. cloth, george's adventures in the country. illustrated. mo. cloth, christmas stories. illus. mo. cloth, book of trades, boys at home. by the author of edgar clifton, child's cheerful companion, child's picture and verse book. engs. cousin alice's works. all's not gold that glitters, contentment better than wealth, nothing venture, nothing have, no such word as fail, patient waiting no loss, dashwood priory. by the author of edgar clifton, edgar clifton; or right and wrong, fireside fairies. by susan pindar, good in every thing. by mrs. barwell, leisure moments improved, life of punchinello, library for my young countrymen. adventures of capt. john smith. by the author of uncle philip, adventures of daniel boone. by do. dawnings of genius. by anne pratt, life and adventures of henry hudson. by the author of uncle philip, life and adventures of hernan cortez. by do. philip randolph. a tale of virginia. by mary gertrude, rowan's history of the french revolution. vols. southey's life of oliver cromwell, louis' school-days. by e. j. may, louise; or, the beauty of integrity, maryatt's settlers in canada, " masterman ready, " scenes in africa, midsummer fays. by susan pindar, miss mcintosh's works. aunt kitty's tales, mo. blind alice; a tale for good children, ellen leslie; or, the reward of self-control, florence arnott; or, is she generous? grace and clara; or, be just as well as generous, jessie graham; or, friends dear, but truth dearer, emily herbert; or, the happy home, rose and lillie stanhope, mamma's story book, pebbles from the sea-shore, puss in boots. illus. by otto specter, peter parley's works. faggots for the fireside, parley's present for all seasons, wanderers by sea and land, winter wreath of summer flowers, tales for the people and their children. alice franklin. by mary howitt, crofton boys (the). by harriet martineau, dangers of dining out. by mrs. ellis, domestic tales. by hannah more. vols. early friendship. by mrs. copley, farmer's daughter (the). by mrs. cameron, first impressions. by mrs. ellis, hope on, hope ever! by mary howitt, little coin, much care. by do. looking-glass for the mind. many plates, love and money. by mary howitt, minister's family. by mrs. ellis, my own story. by mary howitt, my uncle, the clockmaker. by do. no sense like common sense. by do. peasant and the prince. by h. martineau, poplar grove. by mrs. copley, somerville hall. by mrs. ellis, sowing and reaping. by mary howitt, story of a genius. strive and thrive. by do. the two apprentices. by do. tired of housekeeping. by t. s. arthur, twin sisters (the). by mrs. sandham, which is the wiser! by mary howitt, who shall be greatest? by do. work and wages. by do. second series. chances and changes. by charles burdett, goldmaker's village. by h. zschokke, never too late. by charles burdett, ocean work, ancient and modern. by j. h. wright, picture pleasure book, st series, " " " d series, robinson crusoe. plates, susan pindar's story book, sunshine of greystone, travels of bob the squirrel, wonderful story book, willy's first present, week's delight; or, games and stories for the parlor, william tell, the hero of switzerland, young student. by madame guizot, =miscellaneous and general literature.= an attic philosopher in paris, appletons' library manual, agnell's book of chess, arnold's miscellaneous works, arthur. the successful merchant, a book for summer time in the country, baldwin's flush times in alabama, calhoun (j. c.), works of. vols. publ. each, clark's (w. g.) knick-knacks, cornwall's music as it was, and as it is, essays from the london times. st & d series, each, ewbanks' world in a workshop, ellis' women of england, " hearts and homes, " prevention better than cure, foster's essays on christian morals, goldsmith's vicar of wakefield, grant's memoirs of an american lady, gaieties and gravities. by horace smith, guizot's history of civilization, hearth-stone. by rev. s. osgood, hobson. my uncle and i, ingoldsby legends, isham's mud cabin, johnson's meaning of words, kavanagh's women of christianity, leger's animal magnetism, life's discipline. a tale of hungary, letters from rome. a. d. , margaret maitland, maiden and married life of mary powell, morton montague; or a young christian's choice, macaulay's miscellanies. vols. maxims of washington. by j. f. schroeder, mile stones in our life journey, miniature classical library. poetic lacon; or, aphorisms from the poets, bond's golden maxims, clarke's scripture promises. complete, elizabeth; or, the exiles of siberia, goldsmith's vicar of wakefield, " essays, gems from american poets, hannah more's private devotions, " " practical piety. vols. hemans' domestic affections, hoffman's lays of the hudson, &c. johnson's history of rasselas, manual of matrimony, moore's lalla rookh, " melodies. complete, paul and virginia, pollok's course of time, pure gold from the rivers of wisdom, thomson's seasons, token of the heart. do. of affection. do. of remembrance. do. of friendship. do. of love. each, useful letter-writer, wilson's sacra privata, young's night thoughts, little pedlington and the pedlingtonians, prismatics. tales and poems, papers from the quarterly review, republic of the united states. its duties, &c. preservation of health and prevention of disease, school for politics. by chas. gayerre, select italian comedies. translated, shakespeare's scholar. by r. g. white, spectator (the). new ed. vols. cloth, swett's treatise on diseases of the chest, stories from blackwood, thackeray's works. the book of snobs, mr. browne's letters, the confessions of fitzboodle, the fat contributor, jeames' diary. a legend of the rhine, the luck of barry lyndon, men's wives, the paris sketch book. vols. the shabby genteel story, the yellowplush papers. vol. mo. thackeray's works. vols, bound in cloth, trescott's diplomacy of the revolution, tuckerman's artist life, up country letters, ward's letters from three continents, " english items, warner's rudimental lessons in music, woman's worth, =philosophical works.= cousin's course of modern philosophy, " philosophy of the beautiful, " on the true, beautiful, and good, comte's positive philosophy. vols. hamilton's philosophy. vol. vo. =poetry and the drama.= amelia's poems. vol. mo. brownell's poems. mo. bryant's poems. vol. vo. illustrated, " " antique mor. bryant's poems, vols. mo. cloth, " " vol. mo. byron's poetical works. vol. cloth, " " " antique mor. burns' poetical works. cloth, butler's hudibras. cloth, campbell's poetical works. cloth, coleridge's poetical works. cloth, cowper's poetical works, chaucer's canterbury tales, dante's poems. cloth, dryden's poetical works. cloth, fay (j. s.), ulric; or, the voices, goethe's iphigenia in tauris. translated, gilfillan's edition of the british poets. vols. published. price per vol. cloth, do. do. calf, per vol. griffith's (mattie) poems, hemans' poetical works. vols. mo. herbert's poetical works. mo. cloth, keats' poetical works. cloth, mo. kirke white's poetical works. cloth, lord's poems. vol. mo. " christ in hades. mo. milton's paradise lost. mo. " complete poetical works, moore's poetical works. vo. illustrated, " " " mor. extra, montgomery's sacred poems. vol. mo. pope's poetical works. vol. mo. southey's poetical works. vol. spenser's faerie queene. vol. cloth, scott's poetical works. vol. " lady of the lake. mo. " marmion, " lay of the last minstrel, shakspeare's dramatic works, tasso's jerusalem delivered. vol. mo. wordsworth (w.). the prelude, =religious works.= arnold's rugby school sermons, anthon's catechism on the homilies, " early catechism for children, burnet's history of the reformation. vols. " thirty-nine articles, bradley's family and parish sermons, cotter's mass and rubrics, coit's puritanism, evans' rectory of valehead, grayson's true theory of christianity, gresley on preaching, griffin's gospel its own advocate, hecker's book of the soul, hooker's complete works. vols. james' happiness, james on the nature of evil, jarvis' reply to milner, kingsley's sacred choir, keble's christian year, layman's letters to a bishop, logan's sermons and expository lectures, lyra apostolica, marshall's notes on episcopacy, newman's sermons & subjects of the day, " essay on christian doctrine, ogilby on lay baptism, pearson on the creed, pulpit cyclopædia and ministers' companion, sewell's reading preparatory to confirmation, southard's mystery of godliness, sketches and skeletons of sermons, spencer's christian instructed, sherlock's practical christian, sutton's disce vivere--learn to live, swartz's letters to my godchild, trench's notes on the parables, " notes on the miracles, taylor's holy living and dying, " episcopacy asserted and maintained, tyng's family commentary, walker's sermons on practical subjects, watson on confirmation, wilberforce's manual for communicants, wilson's lectures on colossians, wyatt's christian altar, =voyages and travels.= africa and the american flag, appletons' southern and western guide, " northern and eastern guide, " complete u. s. guide book, " n. y. city map, bartlett's new mexico, &c. vols. illus., burnet's n. western territory, bryant's what i saw in california, coggeshall's voyages. vols. dix's winter in madeira, huc's travels in tartary and thibet. vols layard's nineveh. vol. vo. notes of a theological student. mo. oliphant's journey to katmundu, parkyns' abyssinia. vols. russia as it is. by gurowski, " by count de custine, squier's nicaragua. vols. tappan's step from the new world to the old, wanderings and fortunes of germ. emigrants, williams' isthmus of tehuantepec. vols. vo. =works of fiction.= grace aguilar's works. the days of bruce. vols. mo. home scenes and heart studies. mo. the mother's recompense. mo. woman's friendship. mo. women of israel. vols. mo. basil. a story of modern life, mo. brace's fawn of the pale faces, mo. busy moments of an idle woman, chestnut wood. a tale. vols. don quixotte, translated. illustrated, drury (a. h.). light and shade, dupuy (a. e.). the conspirator, ellen parry; or, trials of the heart, mrs. ellis' works. hearts and homes; or, social distinctions, prevention better than cure, women of england, emmanuel phillibert. by dumas, farmingdale. by caroline thomas, fullerton (lady g.). ellen middleton, " " grantley manor. vol. mo. " " lady bird. vol. mo. the foresters. by alex. dumas, gore (mrs.). the dean's daughter. vol. mo. goldsmith's vicar of wakefield. mo. gil blas. with engr's. cloth, gt. edg. harry muir. a tale of scottish life, hearts unveiled; or, i knew you would like him, heartsease; or, my brother's wife. vols. heir of redclyffe. vols, cloth, heloise; or, the unrevealed secret. mo. hobson. my uncle and i. mo. holmes' tempest and sunshine. mo. home is home. a domestic story, howitt (mary). the heir of west wayland, io. a tale of the ancient fane. mo. the iron cousin. by mary cowden clarke, james (g. p. r.). adrian; or, clouds of the mind, john; or, is a cousin in the hand worth two in the bush, julia kavanagh's works. nathalie. a tale. mo. madeline. mo. daisy burns. mo. life's discipline. a tale of hungary, lone dove (the). a legend, linny lockwood. by catherine crowe, miss mcintosh's works. two lives; or, to seem and to be. mo. aunt kitty's tales. mo. charms and counter-charms. mo. evenings at donaldson manor, the lofty and the lowly. vols. margaret's home. by cousin alice, marie louise; or, the opposite neighbors, maiden aunt (the). a story, manzoni. the betrothed lovers. vols. margaret cecil; or, i can because i ought, morton montague; or, the christian's choice, norman leslie. by g. c. h. prismatics. tales and poems. by haywarde, roe (a. s.). james montjoy. mo. " to love and to be loved. mo. " time and tide. mo. reuben medlicott; or, the coming man, rose douglass. by s. r. w. miss sewell's works. amy herbert. a tale. mo. experience of life. mo. gertrude. a tale. mo. katherine ashton. vols. mo. laneton parsonage. a tale. vols. mo. margaret percival. vols. walter lorimer, and other tales. mo. a journal kept for children of a village school, sunbeams and shadows. cloth, thorpe's hive of the bee hunter, thackeray's works. vols. mo. the virginia comedians. vols. mo. use of sunshine. by s. m. mo. wight's romance of abelard & heloise. mo. ~standard historical works.~ i. the history of rome. by thomas arnold, d. d., late regius professor of modern history in the university of oxford, and head master rugby school. large vol. vo. pp. . price, $ . ii. history of france, from the earliest period to the present time. by m. michelet, professeur a la faculte des lettres, professeur a l'ecole normale, &c. translated by g. h. smith, f. g. s. vols. vo. pp., and . price, $ . iii. history of germany, from the earliest period to the present time. by frederick kohlrausch. translated from the last german edition. by james d. haas. with a complete index prepared expressly for the american edition. vol. vo., pp. . price $ ; or, an illustrated edition, neatly bound, $ . iv. history of england, from the peace of utrecht to the peace of paris. by lord mahon. large vols. vo. pp., , , well printed, $ . v. a digest of the laws, customs, manners, and institutions of the ancient and modern nations. by thomas dew, late president of the college of william and mary. vol. vo. pp. , well printed, price, $ . vi. a manual of ancient and modern history. by w. c. taylor, ll.d., &c. large volume, vo., pp. . price, $ . vii. the history of civilization, from the fall of the roman empire to the french revolution. by f. guizot. translated by w. hazlitt. vols. mo., $ . ~important philosophical works.~ i. philosophy of sir william hamilton, bart., professor of logic and metaphysics in edinburgh university. arranged and edited by o. w. wight, translator of cousin's "history of modern philosophy." one vol. vo., pp. , well printed. $ . "sir william hamilton has attained to the very highest distinction as a philosopher, and in some respects he is decidedly superior to any of his illustrious predecessors--reid, stuart or brown. with a remarkable power of analysis and discrimination, he combines great decision and elegance of style, and a degree of erudition that is almost without a parallel."--_edinburgh review._ ii. course of the history of modern philosophy. by m. victor cousin. translated by o. w. wight. two volumes vo., well printed. price, $ . "m. cousin is the greatest philosopher of france."--_sir william hamilton._ "a writer, whose pointed periods have touched the chords of modern society, and thrilled through the minds of thousands in almost every quarter of the civilized world."--_edinburgh review._ iii. the philosophy of the beautiful. from the french of victor cousin. translated, with notes, by j. o. daniel. one neat vol. mo. price, cts. iv. the positive philosophy of auguste comte. freely translated and condensed by harriet martineau. two volumes vo., pp. , , well printed. price, $ . v. lectures on the true, the beautiful, and the good. by victor cousin. translated by o. w. wight. one neat volume vo. (nearly ready.) ~interesting american biographies.~ i. the life of john randolph, of roanoke. by hugh a. garland. complete in volume vo., pp. , with portraits. $ . ii. the life of william pinkney, by his nephew, the rev. william pinkney, d. d. one volume vo., pp. , with fine portrait. $ . "mr. pinkney is certainly one of the historical men of this country: having filled some very important positions in her councils and representations, and occupied an interesting period of her history. his character has been marked, both as the subject of admiration by his friends, and of aspersion and suspicion by his enemies. this book comes forth to defend and justify, and make more clear what was 'obviously misunderstood or seemingly misrepresented.' the spirit of the book is commendable, and gives us much to admire in the life of one 'who adorned the republic of letters, and illustrated the virtues that belong to the enlightened american citizen.'"--_cincin. times._ iii. life and memorials of daniel webster. by gen. s. p. lyman. two neat volumes mo., well printed. $ . "these sketches have been re-written. they are from the pen of gen. s. p. lyman, whose general character, as well as his intimate relations with the family of the deceased statesman, sufficiently guarantee their authenticity. a number of anecdotes are interspersed, which show forth mr. webster's inner man in the most engaging light. none can desire a better portraiture of his life and character than is here presented."--_n. y. courier._ iv. a memoir of the late rev. wm. croswell, d. d., rector of the church of the advent, boston, massachusetts. by his father. one handsome volume vo., pp. , portrait. $ . "this work, which is composed principally of the writings of the rev. mr. croswell himself, has been compiled by his father at the age of threescore and ten years. a memoir presented under these circumstances to the public, cannot fail to demand universal attention. this will be sustained by the intrinsic merits of the work itself, which as a record on christian experience, trial, and consolation, is one of the most beautiful memorials of the kind we have ever read. mr. croswell seems to have been a man of quick fancy and elegant learning. we find scattered through his memoir a number of graceful poems on various subjects, but principally religious, which display both taste and talent. but the sincere and fervent piety apparent on every page of the volume, must still be considered as its chief charm, and its highest recommendation to the class of readers to whom the work especially addresses itself."--_south. lit. gazette._ v. lives of eminent literary and scientific men of america. by james wynne, m. d. one neat volume mo. pp., , well printed. $ . [illustration: appletons' publishing establishment.] =d. appleton & company=, & broadway, new york, =booksellers, publishers, & importers=, respectfully invite the attention of literary and professional gentlemen, heads of public institutions, the trade, and the public generally, to their very extensive and choice collection of standard works, english and american, embracing the best editions of the best authors. their own publications =comprise some of the most important works in the english language.= their school-book publications _cover every branch of human knowledge._ => =catalogues furnished gratis on application to the publishers.= they publish appletons' =railway and steam navigation guide,= =published monthly=, under the supervision of the railway companies. =illustrated with over sixty maps. price cents.= transcriber's notes: simple spelling, grammar, and typographical errors were silently corrected. punctuation normalized. anachronistic and non-standard spellings retained as printed. italics markup is enclosed in _underscores_. bold markup is enclosed in =equals=. fancy or unusual font markup is enclosed in ~tildes~. on page the printer appears to have dropped a line just after "this is not possi-." footnote added by transcriber. white right pointing index symbol is denoted by =>. copyright (c) , by s. a. reilly our legal heritage king aethelbert - king george iii, , a.d. - by s. a. reilly, attorney e. delaware place chicago, illinois - s-reilly@att.net copyright (c) , preface this book was written for people with an interest in english legal history who don't know where to start reading, as i didn't. its purpose is also to look at history through its laws, which do not lend themselves to interpretation, and thus points of view, as does conventional history; one cannot argue with the black letter of the law. attorneys will be interested in reading about the historical context in which the legal doctrines they learned in law school developed. this book includes the complete law codes of king alfred and of king aethelbert, the law code of king canute, paraphrased, excerpts from the law code of henry i, the entire magna carta, and the statutes of england relevant to english life, but excluding such topics as scottish affairs and wars with ireland. it also includes the inception of the common law system, which was praised because it made law which was not handed down by an absolutist king; the origin of the jury system; the meaning of the magna carta provisions in their historical context; and the emergence of attorneys. this book is a primer. one may read it without prior knowledge of history or law, although it will be more meaningful to attorneys than to others. it can serve as an introduction on which to base further reading in english legal history. it defines terms unique to english legal history. however, the meaning of some terms in king aethelbert's code in chapter are unknown or inexact. in the table of contents, the title of each chapter denotes an important legal development in the given time period for that chapter. each chapter is divided into three sections: the times, the law, and judicial procedure. the times section sets a background and context in which to better understand the law of that period. the usual subject matter of history such as battles, wars, royal intrigues, periods of corruption, and international relations are omitted as not helping to understand the process of civilization and development of the law. standard practices are described, but there are often variations with locality. also, change did not come abruptly, but with vacillations, e.g. the change from pagan to christian belief and the change to allowance of loans for interest. the scientific revolution was accepted only slowly. there were often many attempts made for change before it actually occurred, e.g. gaining parliamentary power over the king's privileges, such as taxation. the law section describes the law governing the behavior and conduct of the populace. it includes law of that time which is the same, similar, or a building block to the law of today. in earlier times this is both statutory law and the common law of the courts. the magna carta, which is quoted in chapter , is the first statute of england and is listed first in the "statutes of the realm" and the "statutes at large". the law sections of chapters - mainly quote or paraphrase almost all of these statutes. excluded are statutes which do not help us understand the development of our law, such as statutes governing wales after its conquest and statutes on succession rights to the throne. the judicial procedure section describes the process of applying the law and trying cases, and jurisdictions. it also contains some examples of cases. money is expressed in pounds, shillings, pence, scaetts, or marks, which is a danish denomination. there are twenty shillings in a pound. a mark in silver is two-thirds of a pound. shillings are abbreviated: "s." the pre-norman english shilling was divided into pence or pennies. in henry i's time, the shilling was divided into pence. the norman shilling was introduced by henry ii and was divided into pennies. this penny was literally one pennyweight of silver, so a pound sterling thus weighed pennyweights. pence are abbreviated "d.", for the roman denarius. for example, six shillings and two pence is denoted s. d. a scaett was a coin of silver and copper of lesser denomination; there were scaetts to one shilling. there were no coins of the denomination of shilling during pre-norman times. dedication and acknowledgements a vassar college faculty member once dedicated her book to her students, but for whom it would have been written much earlier. this book "our legal heritage" is dedicated to the faculty of vassar college, without whom it would never have been written. much appreciation goes to professor james curtin of loyola law school for his review and comments on this book's medieval period: chapters - , and especially his comment that "i learned quite a bit about life in those days from your work." thanks go to loyola university law school professor george anastaplo for introducing me to professor curtin. much appreciation goes to professor lacey baldwin smith of northwestern university's history department for his review and comments on this book's tudor and stuart periods: chapters - , especially his comment that he learned a lot. thanks go to northwestern university law school professor steven presser for introducing me to professor smith. finally, many thanks go to fellow mensan william wedgeworth for proof-reading the entire book. table of contents chapters: . tort law as the first written law: to . oaths and perjury: - . marriage law: - . martial "law": - . criminal law and prosecution: - . common law for all freemen: - . magna carta: the first statute: - . land law: - . legislating the economy: - . equity from chancery court: - . use-trust of land: - . wills and testaments of lands and goods: - . consideration and contract law: - . welfare for the poor: - . independence of the courts: - . freedom of religion: - . habeas corpus: - . service of process instead of arrest: - appendix: sovereigns of england bibliography chapter the times: before a.d. the settlement of england goes back thousands of years. at first, people hunted and gathered their food. they wore animal skins over their bodies for warmth and around their feet for protection when walking. these skins were sewn together with bone needles and threads made from animal sinews. they carried small items by hooking them onto their belts. they used bone and stone tools, e.g. for preparing skins. their uncombed hair was held by thistlethorns, animal spines, or straight bone hair pins. they wore conical hats of bound rush and lived in rush shelters. early clans, headed by kings, lived in huts on top of hills or other high places and fortified by circular or contour earth ditches and banks behind which they could gather for protection. they were probably dug with antler picks and wood spades. the people lived in rectangular huts with four wood posts supporting a roof. the walls were made of saplings, and a mixture of mud and straw. cooking was in a clay oven inside or over an open fire on the outside. water was carried in animal skins or leather pouches from springs lower on the hill up to the settlement. forests abounded with wolves, bears, deer, wild boars, and wild cattle. they could more easily be seen from the hill tops. pathways extended through this camp of huts and for many miles beyond. for wives, men married women of their clan or bought or captured other women, perhaps with the help of a best man. they carried their unwilling wives over the thresholds of their huts, which were sometimes in places kept secret from her family. the first month of marriage was called the honeymoon because the couple was given mead, a drink with fermented honey and herbs, for the first month of their marriage. a wife wore a gold wedding band on the ring finger of her left hand to show that she was married. women usually stayed at home caring for children, preparing meals, and making baskets. they also made wool felt and spun and wove wool into a coarse cloth. flax was grown and woven into a coarse linen cloth. spinning the strands into one continuous thread was done on a stick, which the woman could carry about and spin at anytime when her hands were free. the weaving was done on an upright or warp-weighted loom. people of means draped the cloth around their bodies and fastened it with a metal brooch inlayed with gold, gems, and shell, which were glued on with glue that was obtained from melting animal hooves. people drank from hollowed- out animal horns, which they could carry from belts. they could tie things with rawhide strips or rope braids they made. kings drank from animal horns decorated with gold or from cups of amber, shale, or pure gold. men and women wore pendants and necklaces of colorful stones, shells, amber beads, bones, and deer teeth. they skinned and cut animals with hand-axes and knives made of flint dug up from pits and formed by hitting flakes off. the speared fish with barbed bone prongs or wrapped bait around a flint, bone, or shell fish hook. on the coast, they made bone harpoons for deep-sea fish. the flint ax was used to shape wood and bone and was just strong enough to fell a tree, although the process was very slow. the king, who was tall and strong, led his men in hunting groups to kill deer and other wild animals in the forests and to fish in the streams. some men brought their hunting dogs on leashes to follow scent trails to the animal. the men threw stones and spears with flint points at the animals. they used wood clubs to beat them, at the same time using wood shields to protect their bodies. they watched the phases of the moon and learned to predict when it would be full and give the most light for night hunting. this began the concept of a month. circles of stone like stonehenge were built with alignments to paths of the moon. if hunting groups from two clans tried to follow the same deer, there might be a fight between the clans or a blood feud. after the battle, the clan would bring back its dead and wounded. a priest officiated over a funeral for a dead man. his wife would often also go on the funeral pyre with him. the priest also officiated over sacrifices of humans, who were usually offenders found guilty of transgressions. sacrifices were usually made in time of war or pestilence, and usually before the winter made food scarce. the clan ate deer that had been cooked on a spit over a fire, and fruits and vegetables which had been gathered by the women. they drank water from springs. in the spring, food was plentiful. there were eggs of different colors in nests and many hare to eat. the goddess easter was celebrated at this time. later, there was farming and domestication of animals such as horses, pigs, sheep, goats, chicken, and cattle. of these, the pig was the most important meat supply, being killed and salted for winter use. next in importance were the cattle. sheep were kept primarily for their wool. flocks and herds were taken to pastures. the male cattle, with wood yokes, pulled ploughs in the fields of barley and wheat. the female goat and cow provided milk, butter, and cheese. the chickens provided eggs. the hoe, spade, and grinding stone were used. thread was spun with a hand-held spindle which one hand held while the other hand alternately formed the thread from a mass and then wound it around the spindle. a coarse cloth was woven and worn as a tunic which had been cut from the cloth. kings wore tunics decorated with sheet gold. decorated pottery was made from clay and used to hold liquids and for food preparation and consumption. during the period of "lent" [from the word "lencten", which means spring], it was forbidden to eat any meat or fish. this was the season in which many animals were born and grew to maturity. wood carts with four wheels were used to transport produce and manure. horses were used for transportation of people or goods. wood dug-out boats and paddles were used to fish on rivers or on the seacoast. clans had settlements near rivers. each settlement had a meadow, for the mowing of hay, and a simple mill, with round timber huts, covered with branches or thatch or turf supported by a ring of posts. inside was a hearth with smoke going up through a hole in the roof, and a cauldron for cooking food. there was an upright loom in the darkness. the floor was swept clean. at the door were spears or bags of slingstones ready for immediate use. the king lived in the largest hut. gullies outside carried off excess water. each hut had a garden for fruit and vegetables. a goat or cow might be tied out of reach of the garden. there was a fence or hedge surrounding and protecting the garden area and dwelling. buckets and cauldrons which had originated from the mediterranean were used. querns with the top circular stone turned by hand over the bottom stone were used for grinding grain. there were ovens to dry and roast grain. grain was first eaten as a porridge or cereal. there were square wood granaries on stilts and wood racks on which to dry hay. grain was stored in concealed pits in the earth which were lined with drystone or basket work or clay and made airtight by sealing with clay or dung. old pits were converted into waste dumps, burials, or latrines. outside the fence were an acre or two of fields of wheat and barley, and sometimes oats and rye. wheat and rye were sown in the fall, and oats and barley in the spring. sowing was by men or two oxen drawing a simple scratch plough. the crops were all harvested in the summer. in this two-field system, land was held by peasants in units designed to support a single extended family. these fields were usually enclosed with a hedge to keep animals from eating the crop and to define the territory of the settlement from that of its neighbors. flax was grown and made into linen cloth. beyond the fields were pastures for cattle and sheep grazing. there was often an area for beehives. this was subsistence level farming. pottery was given symmetry when formed with use of a wheel and heated in increasingly hot kilns. from kilns used for pottery, it was noticed that lumps of gold or copper ore within would melt and assume the shape of what they had been resting on. these were the first metals, and could be beaten into various shapes, such as ornaments. then the liquid ore was poured into moulds carved out of stones to make axes [small pointed tool for piercing holes in leather, wood, or other soft materials] and daggers, which were reheated and hammered to become strong. copper-tipped drills, chisels, punches and awls were also made. the bodies of deceased were buried far away from any village in wood coffins, except for kings, who were placed in large stone coffins after being wrapped in linen. buried with them were a few personal items, such as copper daggers, flat copper axes, and awls. the deceased was buried in a coffin with a stone on top deep in the earth to keep the spirit of the dead from coming out to haunt the living. it was learned that tin added to the copper made a stronger metal: bronze. stone hammers, and bronze and iron tools, were used to make cooking pots, weapons, breast plates, and horse bits, which were formed from moulds and/or forged by bronze smiths and blacksmiths from iron extracted from iron ore heated in bowl- shaped hearths. typically one man operated the bellows to keep the fire hot while another did the hammering. bronze was made into sickles for harvesting, razors for shaving, tweezers, straight hair pins, safety pins for clothes, armlets, neck-rings, and mirrors. weapons included bows and arrows, flint and copper daggers, bronze swords and spears, stone axes, and shields of wood with bronze mountings. the bows and arrows probably evolved from spear throwing rods. kings in body armor fought with chariots drawn by two horses. the horse harnesses had bronze fittings. the chariots had wood wheels, later with iron rims. when bronze came into use, there was a demand for its constituent parts: copper and tin, which were traded by rafts on waterways and the sea. when iron came into use, there were wrought iron axes, saws, adzes [ax with curved blade used to dress wood], files, ploughshares, harrows [set of spikes to break clods of earth on ploughed land and also to cover seed when sewn], scythes, billhooks [thick knife with hooked point used to prune shrubs], and spits for hearths. lead was mined. there was some glassmaking of beads. wrought iron bars were used as currency. hillforts now had wooden palisades on top of their banks to protect the enclosed farmsteads and villages from stock wandering off or being taken by rustlers, and from attacks by wild animals or other people. later a rampart was added from which sentries could patrol. these were supported by timber and/or stone structures. timbers were probably transported by carts or dragged by oxen. at the entrances were several openings only one of which really allowed entry. the others went between banks into dead ends and served as traps in which to kill the enemy from above. gates were of wood, some hung from hinges on posts which could be locked. later guard chambers were added, some with space for hearths and beds. sometimes further concentric circles of banks and ditches, and perhaps a second rampart, were added around these forts. they could reach to acres. the ramparts are sufficiently widely spaced to make sling-shotting out from them highly effective, but to minimize the dangers from sling-shotting from without. the additional banks and ditches could be used to create cattle corridors or to protect against spear-thrown firebrands. however, few forts had springs of water within them, indicating that attacks on them were probably expected to be short. attacks usually began with warriors bristling with weapons and blowing war trumpets shouting insults to the foe, while their kings dashed about in chariots. sometimes champions from each side fought in single combat. they took the heads of those they killed to hang from their belts or place on wood spikes at the gates. prisoners, including women and children, might become slaves. kings sometimes lived in separate palisades where they kept their horses and chariots. circles of big stones like stonehenge were rebuilt so that the sun's position with respect to the stones would indicate the day of longest sunlight and the day of shortest sunlight. between these days there was an optimum time to harvest the crops before fall, when plants dried up and leaves fell from the trees. the winter solstice, when the days began to get longer was cause for celebration. in the next season, there was an optimum time to plant seeds so they could spring up from the ground as new growth. so farming gave rise to the concept of a year. certain changes of the year were celebrated, such as easter, named for the goddess of the dawn, which occurred in the east (after lent); may day celebrating the revival of life; lammas around july, when the wheat crop was ready for harvesting; and on october the celtic eve of samhain, when the spirits of the dead came back to visit homes and demand food or else cast an evil spell on the refusing homes; and at which masked and costumed inhabitants representing the souls of the dead paraded to the outskirts of the settlements to lead the ghosts away from their homes; and at which animals and humans, who might be deemed to be possessed by spirits, were sacrificed or killed perhaps as examples, in huge bonfires [bonefires] as those assembled looked out for spirits and evil beings. there was an agricultural revolution from the two-field system in which one field was fallow to the three-field system, in which there were three large fields for the heavy and fertile land. each field was divided into long and narrow strips. each strip represented a day's work with the plough. one field had wheat, or perhaps rye, another had barley, oats, beans, or peas, and the third was fallow. it had been observed that legumes such as peas and beans restored the soil. these were rotated yearly. there was a newly invented plough that was heavy and made of wood and later had an attached iron blade. the plough had a mould-board which caught the soil stirred by the plough blade and threw it into a ridge alongside the furrow dug by the plough blade. this plough was too heavy for two oxen and was pulled by a team of about eight to ten oxen. each ox was owned by a different man as was the plough, because no one peasant could afford the complete set. each freeman was allotted certain strips in each field to bear crops. his strips were far from each other, which insured some very fertile and some only fair soil, and some land near his village dwelling and some far away. these strips he cultivated, sowed with seed, and harvested for himself and his family. after the harvest, they reverted to common ownership for grazing by pigs, sheep, and geese. as soon as haymaking was over, the meadows became common grazing land for horses, cows, and oxen. not just any inhabitant, but usually only those who owned a piece of land in the parish were entitled to graze their animals on the common land, and each owner had this right of pasture for a definite number of animals. the faster horse replaced the ox as the primary work animal. other farm implements were: coulters, which gave free passage to the plough by cutting weeds and turf, picks, spades and shovels, reaping hooks and scythes, and sledge hammers and anvils. strips of land for agriculture were added from waste land as the community grew. waste lands were moors bristling with brushwood, or gorse, heather and wanton weeds, reed-coated marshes, quaking peat-bogs, or woods grown haphazard on sand or rock. with iron axes, forests could be cleared to provide more arable land. some villages had a smith, a wheelwright, and a cooper. there were villages which had one or two market days in each week. cattle, sheep, pigs, poultry, calves, and hare were sold there. london was a town on the thames river under the protection of the celtic river god lud: lud's town. it's huts were probably built over the water, as was celtic custom. it was a port for foreign trade. near the town was ludhill. each celtic tribe in england made its own coinage. silver and bronze were first used, and then gold. the metal was put into a round form and then placed between two engraved dies, which were hit. flint workers mined with deer antler picks and ox shoulder blade shovels for flint to grind into axes, spearheads, and arrowheads. mine shafts were up to thirty feet deep and necessitated the use of chalk lamps fueled by animal fat with wicks of moss. the flint was hauled up in baskets. common men and women were now buried in tombs within memorial burial mounds of earth with stone entrances and interior chambers. a man's weapons and shield were buried with him and a woman's spindle and weaving baton, and perhaps beads or pottery with her. at times, mounds of earth would simply be covered over piles of corpses and ashes in urns. in these mass graves, some corpses had spear holes or sword cuts, indicating death by violence. the druid priests, the learned class of the celts, taught the celts to believe in reincarnation of the soul after death of one body into another body. they also threw prized possessions into lakes and rivers as sacrifices to water gods. they placed images of gods and goddesses in shrines, which were sometimes large enough to be temples. they thought of their gods as supernatural magicians. with the ability to grow food and the acquisition of land by conquest by invading groups, the population grew. there were different classes of men. the freemen were eorls [noble freemen] or ceorls [ordinary free farmers]. slaves were not free. freemen had long hair and beards. slaves' hair was shorn from their heads so that they were bald. slaves were chained and often traded. prisoners taken in battle, especially native britons taken by invading groups, became slaves. a slave who was captured or purchased was a "theow". an "esne" was a slave who worked for hire. a "weallas" was a welsh slave. criminals became slaves of the person wronged or of the king. sometimes a father pressed by need sold his children or his wife into bondage. debtors, who increased in number during famine, which occurred regularly, became slaves by giving up the freeman's sword and spear, picking up a slave's mattock [pick ax for the soils], and placing their head within a lord's or lady's hands. they were called wite- theows. the original meaning of the word lord was "loaf-giver". children with a slave parent were slaves. the slaves lived in huts around the homes of big landholders, which were made of logs and consisted on one large room or hall. an open hearth was in the middle of the earthen floor of the hall, which was strewn with rushes. there was a hole in the roof to let out the smoke. here the landholder and his men would eat meat, bread, salt, hot spiced ale, and mead while listening to minstrels sing about the heroic deeds of their ancestors. richer men drank wine. there were festivals which lasted several days, in which warriors feasted, drank, gambled, boasted, and slept where they fell. physical strength and endurance in adversity were admired traits. slaves often were used as grain grinders, ploughmen, sowers, haywards, woodwards, shepherds, goatherds, swineherds, oxherds, cowherds, dairymaids, and barnmen. slaves had no legal rights. a lord could kill his slave at will. a wrong done to a slave was regarded as done to his owner. if a person killed another man's slave, he had to compensate him with the slave's purchase price. the slave owner had to answer for the offenses of his slaves against others, as for the mischief done by his cattle. since a slave had no property, he could not be fined for crimes, but was whipped, mutilated, or killed. during famine, acorns, beans, peas, and even bark were ground down to supplement flour when grain stocks grew low. people scoured the hedgerows for herbs, roots, nettles, and wild grasses, which were usually left for the pigs. sometimes people were driven to infanticide or group suicide by jumping together off a cliff or into the water. several large kingdoms came to replace the many small ones. the people were worshipping pagan gods when st. augustine came to england in a.d. to christianize them. king aethelbert of kent and his wife, who had been raised christian on the continent, met him when he arrived. the king gave him land where there were ruins of an old city. augustine used stones from the ruins to build a church which was later called canterbury. he also built the first st. paul's church in london. aethelbert and his men who fought with him and ate and lived in his household [gesiths] became christian. a succession of princesses went out from kent to marry other saxon kings and convert them to christianity. augustine knew how to write, but king aethelbert did not. the king announced his laws at meetings of his people and his eorls would decide the punishments. there was a fine of s. for disregarding a command of the king. he and augustine decided to write down some of these laws, which now included the king's new law concerning the church. these laws concern personal injury, killing, theft, burglary, marriage, adultery, and inheritance. the blood feud's private revenge for killing had been replaced by payment of compensation to the dead man's kindred. one, or one's blood kindred, paid a man's "wergeld" [worth] to his blood kindred for causing his wrongful death. the wergeld [wer] of a king was an unpayable amount of about s., of an aetheling [a king-worthy man of the extended royal family] was s., of an eorl, s., of a ceorl, s., of a laet [agricultural worker in kent, which class was between free and slave], - s., and of a slave nothing. at this time a shilling could buy a cow in kent or a sheep elsewhere. if a ceorl killed an eorl, he paid three times as much as an eorl would have paid as murderer. personal injury was compensated by a "bot". the penalty for slander was tearing out of the tongue. if an aetheling was guilty of this offense, his tongue was worth five times that of a coerl, so he had to pay proportionately more to ransom it. the crimes of murder, treachery to one's own lord, arson [burning a house], house breaking, and open theft, were punishable by death and forfeiture of all property. the law "these are the dooms [decrees] which king aethelberht established in the days of augustine . [theft of] the property of god and of the church [shall be compensated], twelve fold; a bishop's property, eleven fold; a priest's property, nine fold; a deacon's property, six fold; a cleric's property, three fold; church frith [breach of the peace of the church; right of sanctuary and protection given to those within its precincts], two fold [that of ordinary breach of the public peace]; maethl-frith [breach of the peace of a meeting place], two fold. . if the king calls his leod [his people] to him, and any one there do them evil, [let him compensate with] a twofold bot [damages for the injury], and shillings fine to the king. . if the king drink at any one's home, and any one there do any lyswe [evil deed], let him make twofold bot. . if a freeman steal from the king, let him repay nine fold. . if a man slay another in the king's tun [enclosed dwelling premises], let him make bot with shillings. . if any one slay a freeman, shillings to the king, as drihtin beah [payment to a lord in compensation for killing his freeman]. . if the king's ambiht-smith [smith or carpenter] or laad-rine [man who walks before the king or guide or escort], slay a man, let him pay a half wergeld. . [offenses against anyone or any place under] the king's mund byrd [protection or patronage], shillings fine . if a freeman steal from a freeman, let him make threefold bot; and let the king have the wite [fine] and all the chattels [necessary to pay the fine]. (chattels was a variant of "cattle" and was usually a beast, though it could mean any personal property.) . if a man lie with the one of the king's female servants, let him pay a bot of shillings. . if she be a corn-grinding slave, let him pay a bot of shillings. the third [class of servant] shillings. . let the king's fedesl [tenant or boarder] be paid for with shillings. . if a man slay another in an eorl's tun [premises], let [him] make bot with shillings. . if a man lie with an eorl's birele [female cupbearer], let him make bot with shillings. . [offenses against a person or place under] a ceorl's mund byrd [protection], shillings. . if a man lie with a ceorl's birele [female cupbearer], let him make bot with shillings; with a slave of the second [class], scaetts; with one of the third, scaetts. . if any one be the first to invade a man's tun [premises], let him make bot with shillings; let him who follows, with shillings; after, each, a shilling. . if a man furnish weapons to another where there is a quarrel, though no injury results, let him make bot with shillings. . if a weg-reaf [highway robbery] be done [with weapons furnished by another], let him [the man who provided the weapons] make bot with shillings. . if the man be slain, let him [the man who provided the weapons] make bot with shillings. . if a [free] man slay another, let him make bot with a half wergeld of shillings. . if a man slay another, at the open grave let him pay shillings, and pay the whole wergeld within days. . if the slayer departs from the land, let his kindred pay a half leod. . if any one bind a freeman, let him make bot with shillings. . if any one slay a ceorl's half-aeta [loaf or bread eater; domestic or menial servant], let him make bot with shillings. . if [anyone] slay a laet [semi-slave] of the highest class, let him pay shillings; of the second class, let him pay shillings; of the third class, let him pay shillings. . if a freeman commit edor-breach [breaking through the fenced enclosure and forcibly entering a ceorl's dwelling], let him make bot with shillings. . if any one take property from a dwelling, let him pay a three-fold bot. . if a freeman goes with hostile intent through an edor [the fence enclosing a dwelling], let him make bot with shillings. . if [in so doing] a man slay another, let him pay with his own money, and with any sound property whatever. . if a freeman lie with a freeman's wife, let him pay for it with his wergeld, and obtain another wife with his own money, and bring her to the other [man's dwelling]. . if any one thrusts through the riht-ham-scyld [legal means of protecting one's home; the perimeter of a homestead], let him adequately compensate. . if there be feax-fang [seizing someone by the hair], let there be sceatts for bot. . if there be an exposure of the bone, let bot be made with shillings. . if there be a cutting of the bone, let bot be made with shillings. . if the outer hion [outer membrane covering the brain] be broken, let bot be made with shillings. . if it be both [outer and inner membranes covering the brain], let bot be made with shillings. . if a shoulder be lamed, let bot be made with shillings. . if an ear be struck off, let bot be made with shillings. . if the other ear hear not, let bot be made with shillings. . if an ear be pierced, let bot be made with shillings. . if an ear be mutilated, let bot be made with shillings. . if an eye be [struck] out, let bot be made with shillings. . if the mouth or an eye be injured, let bot be made with shillings. . if the nose be pierced, let bot be made with shillings. . if it be one ala, let bot be made with shillings. . if both be pierced, let bot be made with shillings. . if the nose be otherwise mutilated, for each [cut, let] bot be made with shillings. . if it be pierced, let bot be made with shillings. . let him who breaks the jaw bone pay for it with shillings. . for each of the four front teeth, shillings; for the tooth which stands next to them shillings; for that which stands next to that, shillings; and then afterwards, for each a shilling. . if the speech be injured, shillings. if the collar bone be broken, let bot be made with shillings. . let him who stabs [another] through an arm, make bot with shillings. if an arm be broken, let him make bot with shillings. . if a thumb be struck off, shillings. if a thumb nail be off, let bot be made with shillings. if the shooting [fore] finger be struck off, let bot be made with shillings. if the middle finger be struck off, let bot be made with shillings. if the gold [ring] finger be struck off, let bot be made with shillings. if the little finger be struck off, let bot be made with shillings. . for every nail, a shilling. . for the smallest disfigurement of the face, shillings; and for the greater, shillings. . if any one strike another with his fist on the nose, shillings. . if there be a bruise [on the nose], a shilling; if he receive a right hand bruise [from protecting his face with his arm], let him [the striker] pay a shilling. . if the bruise [on the arm] be black in a part not covered by the clothes, let bot be made with scaetts. . if it be covered under the clothes, let bot for each be made with scaetts. . if the belly be wounded, let bot be made with shillings; if it be pierced through, let bot be made with shillings. . if any one needs medical attention, let bot be made with shillings. . if any one be cearwund [badly wounded], let bot be made with shillings. . if any one destroy [another's] organ of generation [penis], let him pay him with wergelds: if he pierce it through, let him make bot with shillings; if it be pierced within, let him make bot with shillings. . if a thigh be broken, let bot be made with shillings; if the man become halt [lame], then friends must arbitrate. . if a rib be broken, let bot be made with shillings. . if [the skin of] a thigh be pierced through, for each stab shillings; if [the wound be] above an inch [deep], a shilling; for two inches, ; above three, shillings. . if a sinew be wounded, let bot be made with shillings. . if a foot be cut off, let shillings be paid. . if a great toe be cut off, let shillings be paid. . for each of the other toes, let one half that for the corresponding finger be paid. . if the nail of a great toe be cut off, scaetts for bot; for each of the others, make bot with scaetts. . if a freewoman loc-bore [with long hair] commit any leswe [evil deed], let her make a bot of shillings. . let maiden bot [compensation for injury to an unmarried woman] be as that of a freeman. . for [breach of] the mund [protection] of a widow of the best class, of an eorl's degree, let the bot be shillings; of the second, shillings; of the third, shillings; of the fourth, shillings. . if a man carry off a widow not under his own protection by right, let the mund be twofold. . if a man buy a maiden as wife, let the bargain stand, if it be without fraud; but if there be fraud, let him bring her home again, and let his property be restored to him. . if she bear a live child, she shall have half the property, if the husband die first. . if she wish to go away with her children, she shall have half the property. . if the husband wish to keep them [the children], [she shall have the same portion] as one child. . if she bear no child, her paternal kindred shall have the fioh [her money and chattels] and the morgen-gyfe [morning gift: a gift made to the bride by her husband on the morning following the consummation of the marriage]. . if a man carry off a maiden by force, let him pay shillings to her controller, and afterwards buy the consent of the controller [to the marriage]. . if she be betrothed to another man and money has changed hands, let him [who carried her off] make bot [to the intended bridegroom] with shillings. . if restitution [of the girl] is made, bot of shillings; and shillings to the king. . if a man lie with an esne's [slave's]wife, her husband still living, let him make twofold bot. . if one esne [slave] slay another unoffending, let him pay for him at his full worth. . if an esne's [slave's] eye and foot be struck out or off, let him be paid for at his full worth. . if any one bind another man's esne [slave], let him make bot with shillings. . let [compensation for] weg-reaf [highway robbery] of a theow [slave] be shillings. . if a theow steal, let him [the owner] make twofold bot [twice the value of the stolen goods]." judicial procedure the king and his freemen would hear and decide cases of wrongful behavior such as breach of the peace. punishment would be given to the offender by the community. the bots, wers, and wites were high and often could not be paid. if a man could not or would not pay, he could be outlawed, to be killed by anyone with impunity or punished by hanging; beheading; burning; drowning; stoning; precipitation from a cliff; loss of ears, nose, upper-lip, hands and feet; castration; flogging; or sale into slavery. there were occasional meetings of "hundreds", which were households, to settle widespread disputes. the chief officer was "hundreder" or "constable". he was responsible for keeping the peace of the hundred. the concept of a wrong to a person or his kindred is still primary and that of offense to the community secondary. very slowly did the concept emerge that that members of the community must be content with legal remedies and must not seek private vengeance and that public offenses cannot be altered by private agreement. the druid priests decided all disputes of the celts. chapter the times: - the country was inhabited by anglo-saxons. the french called it "angleterre", which means the angle or end of the earth. it was called "angle land", which later became "england". a community was usually an extended family. its members lived a village in which a stone church was the most prominent building. they lived in one-room huts with walls and roofs made of wood, mud, and straw. hangings covered the cracks in the walls to keep the wind out. smoke from a fire in the middle of the room filtered out of cracks in the roof. grain was ground at home by rotating by hand one stone disk on another stone disk. some villages had a mill powered by the flow of water or by horses. all freeholders had the duty of watch [at night] and ward [during the day], of following the hue and cry to chase an offender, and of taking the oath of peace. these three duties were constant until . farmland surrounded the villages and was farmed by the community as a whole under the direction of a lord. there was silver, copper, iron, tin, gold, and various types of stones from remote lead mines and quarries in the nation. silver pennies replaced the smaller scaetts. freemen paid "scot" and bore "lot" according to their means for local purposes. offa, the strongest of the saxon kings, minted high-quality silver pennies. he traded woolen coats for lava grindstones with emperor charlemagne, who used a silver denarius coin. there were denarii to the solidus and soldi to the pound of silver. these denominations were taken by england as pennies to the shilling and shillings to the pound. the pound sign, an "l" with a hash mark derived from the word libra, which meant weighing scales. everyone in the village went to church on sunday and brought gifts such as grain to the priest. later, contributions in the form of money became customary, and then expected. these "tithes" were spent for church repair, the clergy, and poor and needy laborers. the church fixed the amount to be one-tenth, but local custom determined the amount. there was also church-scot: a payment to the clergy in lieu of the first fruits of the land. there were also offerings, originally voluntary but afterwards compulsory, for sacraments. the priest was the chaplain of a landlord and his parish was coextensive with that landlord's holding and could include one to several villages. the priest and other men who helped him, lived in the church building. some churches had lead roofs and iron hinges, latches, and locks on their doors. the land underneath had been given to the church by former kings and persons who wanted the church to say prayers to help their souls go from purgatory to heaven and who also selected the first priest. the priest conducted christianized easter ceremonies in the spring and (christ's mass) ceremonies in winter in place of the pagan yuletide festivities. burning incense took the place of pagan burnt animal offerings, which were accompanied by incense to disguise the odor of burning flesh. holy water replaced haunted wells and streams. christian incantations replaced sorcerer's spells. nuns assisted priests in celebrating mass and administering the sacraments. they alone consecrated new nuns. vestry meetings were community meetings held for church purposes. the people said their prayers in english, and the priest conducted the services in english. a person joined his hands in prayer as if to offer them for binding together in submission. the church baptized babies and officiated or gave blessings at marriage ceremonies. it also said prayers for the dying, gave them funerals, and buried them. there were burial service fees, candle dues, and plough alms. a piece of stone with the dead person's name marked his grave. it was thought that putting the name on the grave would assist identification of that person for being taken to heaven. the church heard the last wish or will of the person dying concerning who he wanted to have his property. the church taught that it was not necessary to bury possessions with the deceased. the church taught boys and girls. every man carried a horn slung on his shoulder as he went about his work so that he could at once send out a warning to his fellow villagers or call them in chasing a thief or other offender. the forests were full of outlaws, so strangers who did not blow a horn to announce themselves were presumed to be fugitive offenders who could be shot on sight with impunity. an eorl could call upon the ceorl farmers for about forty days to fight off an invading group. there were several kingdoms, whose boundaries kept changing due to warfare, which was a sin according to the church. they were each governed by a king and witan of wise men who met at a witanegemot, which was usually held three times a year, mostly on great church festivals and at the end of the harvest. the king and witan chose the witan's members of bishops, eorldormen, and thegns [landholding farmers]. the king and hereditary claims played a major part in the selection of the eorldormen, who were the highest military leaders and often of the royal family. they were also chief magistrates of large jurisdictional areas of land. the witan included officers of the king's household and perhaps other of his retinue. there was little distinction then between his gesith, fighting men, guards, household companions, dependents, and servants. the king was sometimes accompanied by his wife and sons at the witanagemot. a king was selected by the witan according to his worthiness, usually from among the royal family, and could be deposed by it. the witan and king decided on laws, taxes, and transfers of land. they made determinations of war and peace and directed the army and the fleet. the king wore a crown or royal helmet. he extended certain protections by the king's peace. he could erect castles and bridges and could provide a special protection to strangers. a king had not only a wergeld to be paid to his family if he were killed, but a "cynebot" of equal amount that would be paid to his kingdom's people. a king's household had a chamberlain for the royal bedchamber, a marshall to oversee the horses and military equipment, a steward as head of household, and a cupbearer. the king had income from fines for breach of his peace; fines and forfeitures from courts dealing with criminal and civil cases; salvage from ship wrecks; treasure trove [assets hidden or buried in times of war]; treasures of the earth such as gold and silver; mines; saltworks; tolls and other dues of markets, ports, and the routes by land and by river generally; heriot from heirs of his special dependents for possession of land (usually in kind, principally in horses and weapons). he also had rights of purveyance [hospitality and maintenance when traveling]. the king had private lands, which he could dispose of by his will. he also had crown lands, which belonged to his office and could not be alienated without consent of the witan. crown lands often included palaces and their appendant farms, and burhs. it was a queen's duty to run the royal estate. also, a queen could possess, manage, and dispose of lands in her name. violent queens waged wars. kingdoms were often allied by marriage between their royal families. there were also royal marriages to royalty on the continent. the houses of the wealthy had ornamented silk hangings on the walls. some had fine white ox horn shaved so thin they were transparent for windows. brightly colored drapery, often purple, and fly nets surrounded their beds, which were covered with the fur of animals. they slept in bed clothes on pillows stuffed with straw. tables plated with silver and gems held silver candlesticks, gold and silver goblets and cups, and lamps of gold, silver, or glass. they used silver mirrors and silver writing pens. there were covered seats, benches, and footstools with the head and feet of animals at their extremities. they ate from a table covered with a cloth. servants brought in food on spits, from which they ate. food was boiled, broiled, or baked. the wealthy ate wheat bread and others ate barley bread. ale made from barley was passed around in a cup. mead made from honey was also drunk. men wore long-sleeved wool and linen garments reaching almost to the knee, around which they wore a belt tied in a knot. men often wore a gold ring on the fourth finger of the right hand. leather shoes were fastened with leather thongs around the ankle. their hair was parted in the middle and combed down each side in waving ringlets. the beard was parted in the middle of the chin, so that it ended in two points. the clergy did not wear beards. great men wore gold-embroidered clothes, gilt buckles and brooches, and drank from drinking horns mounted in silver gilt or in gold. well- to-do women wore brightly colored robes with waist bands, headbands, necklaces, gem bracelets, and rings. their long hair was in ringlets and they put rouge on their cheeks. they had beads, pins, needles, tweezers of bronze, and workboxes of bronze, some highly ornamented. they were often doing needlework. silk was affordable only by the wealthy. most families kept a pig and pork was the primary meat. there were also sheep, goats, cows, deer, hare, and fowl. fowl was obtained by fowlers who trapped them. the inland waters yielded eels, salmon, and trout. in the fall, meat was salted to preserve it for winter meals. there were orchards growing figs, nuts, grapes, almonds, pears, and apples. also produced were beans, lentils, onions, eggs, cheese, and butter. pepper and cinnamon were imported. fishing from the sea yielded herrings, sturgeon, porpoise, oysters, crabs, and other fish. sometimes a whale was driven into an inlet by a group of boats. whale skins were used to make ropes. the roads were not much more than trails. they were often so narrow that two pack horses could hardly pass each other. the pack horses each carried two bales or two baskets slung over their backs, which balanced each other. the soft soil was compacted into a deep ditch which rains, floods, and tides, if near the sea, soon turned into a river. traveling a far distance was unsafe as there were robbers on the roads. traveling strangers were distrusted. it was usual to wash one's feet in a hot tub after traveling and to dry them with a rough wool cloth. there were superstitions about the content of dreams, the events of the moon, and the flights and voices of birds were often seen as signs or omens of future events. herbal mixtures were drunk for sickness and maladies. from the witch hazel plant was made a mild alcoholic astringent, which was probably used to clean cuts and sooth abrasions. in the peaceful latter part of the s, theodore, who had been a monk in rome, was appointed archbishop and visited all the island speaking about the right rule of life and ordaining bishops to oversee the priests. each kingdom was split up into dioceses each with one bishop. thereafter, bishops were selected by the king and his witan, usually after consulting the clergy and even the people of the diocese. the bishops came to be the most permanent element of society. they had their sees in villages or rural monasteries. the bishops came to have the same wergeld as an eorldorman: s., which was the price of about oxen. a priest had the wergeld as a landholding farmer [thegn], or s. the bishops spoke latin, but the priests of the local parishes spoke english. theodore was the first archbishop whom all the english church obeyed. he taught sacred and secular literature, the books of holy writ, ecclesiastical poetry, astronomy, arithmetic, and sacred music. theodore discouraged slavery by denying christian burial to the kidnapper and forbidding the sale of children over the age of seven. a slave became entitled to two loaves a day and to his holydays. a slave was allowed to buy his or his children's freedom. in , theodore started annual national ecclesiastical assemblies, for instance for the witnessing of important actions. the bishops, some abbots, the king, and the eorldormen were usually present. from them the people learned the benefit of common national action. there were two archbishops: one of canterbury in the south and one of york in the north. they governed the bishops and could meet with them to issue canons that would be equally valid all over the land. a bishop's house contained some clerks, priests, monks, and nun and was a retreat for the weary missionary and a school for the young. the bishop had a deacon who acted as a secretary and companion in travel, and sometimes as an interpreter. ink was made from the outer husks of walnuts steeped in vinegar. the learned ecclesiastical life flourished in monastic communities, in which both monks and nuns lived. hilda, a noble's daughter, became the first nun in northumbria and abbess of one of its monasteries. there she taught justice, piety, chastity, peace, and charity. several monks taught there later became bishops. kings and princes often asked her advice. many abbesses came to run monastic communities; they were from royal families. women, especially from royal families, fled to monasteries to obtain shelter from unwanted marriage or to avoid their husbands. kings and eorldormen retired to them. danish vikings made several invasions in the s, so the witan imposed a danegeld tax on land that was assessed on everyone every ten to twenty years for maintaining forces sufficient to clear the british seas of danish pirates or to buy off the ravages of the danish it was s. and later s. upon every hide of land, where a hide was probably the amount of land which could support a family or household for a year or as much land as could be tilled annually by a single plough. it was stored in a strong box under the king's bed. king alfred the great, who had lived for awhile in rome, unified the country to defeat the invaders. he established fortifications called "burhs", usually on hill tops or other strategic locations on the borders to control the main road and river routes into his realm. the burhs were seminal towns. they were typically walled enclosures with towers and an outer ditch and mound, instead of the hedge or fence enclosure of a tun. inside were several wooden thatched huts and a couple of churches, which were lit by earthen oil lamps. the populace met at burhgemotes. the land area protected by each burh became known as a "shire", which means a share of a larger whole. the shire or local landowners were responsible for repairing the burh fortifications. there were about thirty shires. alfred gathered together fighting men who were at his disposal, which included eorldormen with their hearthbands (retinues of men each of whom had chosen to swear to fight to the death for their eorldorman, and some of whom were of high rank), the king's thegns, shire thegns (local landholding farmers, who were required to bring fighting equipment such as swords, helmets, chain mail, and horses), and ordinary freemen, i.e. ceorls (who carried food, dug fortifications, and sometimes fought). since the king was compelled to call out the whole population to arms, the distinction between the king's thegns from other landholders disappeared. some great lords organized men under them, whom they provisioned. these vassals took a personal oath to their lord "on condition that he keep me as i am willing to deserve, and fulfill all that was agreed on when i became his man, and chose his will as mine." alfred had a small navy of longships with oars to fight the viking longships. alfred divided his army into two parts so that one half of the men were fighting while the other half was at home sowing and harvesting for those fighting. thus, any small-scale independent farming was supplanted by the open-field system, cultivation of common land, more large private estates headed by a lord, and a more stratified society in which the king and important families more powerful and the peasants more curtailed. the witan became mere witnesses. many free coerls of the older days became bonded. the village community tended to become a large private estate headed by a lord. but the lord does not have the power to encroach upon the rights of common that exist within the community. in , a treaty between alfred and the vikings divided the country along the war front and made the wergeld of every free farmer, whether english or viking, s. men of higher rank were given a wergeld of / marks of pure gold. a mark was probably a viking denomination and a mark of gold was equal to nine marks of silver in later times and probably in this time. the word "earl" replaced the word "eorldormen" and the word "thegn" replaced the word "aetheling" after the danish settlement. the ironed pleats of viking clothing indicated a high status of the wearer. the vikings brought combs and the practice of regular hair-combing to england. king alfred gave land with jurisdictional powers within its boundaries such as the following: "this is the bequest which king alfred make unequivocally to shaftesbury, to the praise of god and st. mary and all the saints of god, for the benefit of my soul, namely a hundred hides as they stand with their produce and their men, and my daughter aethelgifu to the convent along with the inheritance, since she took the veil on account of bad health; and the jurisdiction to the convent, which i myself possessed, namely obstruction and attacks on a man's house and breach of protection. and the estates which i have granted to the foundation are hides at donhead and compton, hides at handley and gussage hides at tarrant, hides at iwerve and hides at fontmell. the witnesses of this are edward my son and archbishop aethelred and bishop ealhferth and bishop aethelhead and earl wulfhere and earl eadwulf and earl cuthred and abbot tunberht and milred my thegn and aethelwulf and osric and brihtulf and cyma. if anyone alters this, he shall have the curse of god and st. mary and all the saints of god forever to all eternity. amen." sons usually succeeded their fathers on the same land as shown by this lifetime lease: "bishop denewulf and the community at winchester lease to alfred for his lifetime hides of land at alresford, in accordance with the lease which bishop tunbriht had granted to his parents and which had run out, on condition that he renders every year at the autumnal equinox three pounds as rent, and church dues, and the work connected with church dues; and when the need arises, his men shall be ready both for harvesting and hunting; and after his death the property shall pass undisputed to st. peter's. these are the signatures of the councilors and of the members of the community who gave their consent, namely ..." alfred invented a graduated candle with spaces indicating one hour of burning, which could be used as a clock. he used a ventilated cow's horn to put around the top of the candle to prevent its blowing out, and then devised a wooden lantern with a horn window. he described the world as like a yolk in the middle of an egg whose shell moves around it. this agreed with the position of ptolemy claudius of alexandria, who showed the curvature of the earth from north to south by observing that the polar star was higher in the north and lower in the south. that it was curved from east to west followed from the observation that two clocks placed one west and one east would record a different time for the same eclipse of the moon. alfred wrote poems on the worthiness of wisdom and knowledge in preference to material pleasures, pride, and fame, in dealing with life's sorrow and strife. his observations on human nature and his proverbs include: . as one sows, so will he mow. . every man's doom [judgment] returns to his door. . he who will not learn while young, will repent of it when old. . weal [prosperity] without wisdom is worthless. . though a man had acres sown with red gold, and the gold grew like grass, yet he is not a whit the worthier unless he gain friends for himself. . gold is but a stone unless a wise man has it. . it's hard to row against the sea flood; so it is against misfortune. . he who toils in his youth to win wealth, so that he may enjoy ease in his old age, has well bestowed his toil. . many a man loses his soul through silver. . wealth may pass away, but wisdom will remain, and no man may perish who has it for his comrade. . don't choose a wife for her beauty nor for wealth, but study her disposition. . many an apple is bright without and bitter within. . don't believe the man of many words. . with a few words a wise man can compass much. . make friends at market, and at church, with poor and with rich. . though one man wielded all the world, and all the joy that dwells therein, he could not therewith keep his life. . don't chide with a fool. . a fool's bolt is soon shot. . if you have a child, teach it men's manners while it is little. if you let him have his own will, he will cause you much sorrow when he comes of age. . he who spares the rod and lets a young child rule, shall rue it when the child grows old. . either drinking or not drinking is, with wisdom, good. . relatives often quarrel together. . the barkless dog bites ill. . be wise of word and wary of speech, then all shall love you. . we may outride, but not outwit, the old man. . be not so mad as to tell your friend all your thoughts. . if you and your friend fall out, then your enemy will know what your friend knew before. . don't choose a deceitful man as a friend, for he will do you harm. . the false one will betray you when you least expect it. . don't choose a scornful false friend, for he will steal your goods and deny the theft. . take to yourself a steadfast man who is wise in word and deed; he will prove a true friend in need. to restore education and religion, alfred disseminated the anglo- saxon chronicles; the venerable bede's ecclesiastical history of the english nation; the "consolidation of philosophy" by roman philosopher boethius, which related the use of adversity to develop the soul, and described the goodness of god and how the highest happiness comes from spiritual values and the soul, which are eternal, rather than from material or earthly pursuits, which are temporal; and pope gregory's pastoral care, which he had translated into english and was the fundamental book on the duty of a bishop, which included a duty to teach laymen; and orosius' history of the world, which he had translated into english. alfred's advice to pastors was to live as they had been taught from books and to teach this manner of life to others. to be avoided was pride, the mind's deception of seeking glory in the name of doing good works, and the corruption of high office. bede was england's first scholar, first theologian, and first historian. he wrote poetry, theological books, homilies, and textbooks on grammar, rhetoric [public speaking and debating], arithmetic, and astronomy. he adhered to the doctrine that death entered the world by the sin of adam, the first man. he began the practice of dating years from the birth of christ and believed that the earth was round. over the earth was a fiery spherical firmament. above this were the waters of the heavens. above this were the upper heavens, which contained the angels and was tempered with ice. he declared that comets portend downfalls of kingdoms, pestilence, war, winds, or heat. this reflected the church's view that a comet was a ball of fire flung from the right hand of an angry god as a warning to mankind, usually for disbelief. storms were begun by the devil. a famous poem, the oral legend of beowulf, a hero who led his men into adventures and performed great feats and fought monsters and dragons, was put into writing with a christian theme. in it, loyalty to one's lord is a paramount virtue. also available in writing was the story of king arthur's twelve victorious battles against the pagan saxons, authored by nennius. there were professional story tellers attached to great men. others wandered from court to court, receiving gifts for their story telling. men usually told oral legends of their own feats and those of their ancestors after supper. alfred had monasteries rebuilt with learned and moral men heading them. he built a nunnery which was headed by his daughter as prioress. he built a strong wall with four gates around london, which he had taken into his control. he appointed his son-in-law, who was one of his eorldormen, to be alderman [older man] to govern london and to be the shire's earl. a later king built a palace in london, although winchester was still the royal capital town. when the king traveled, he and his retinue were fed by the local people at their expense. after alfred's death, his daughter aethelflared ruled the country for seven years. she had more fortified burhs built and led soldiers to victories. burhs grew into towns and some towns into boroughs by obtaining a charter from the king. their citizens were landholding freemen called."burgesses". a borough typically was a place of refuge with earth works, and perhaps a garrrison; it had a market place in which men could buy cattle and other goods and have the sale attested by official witnesses and toll was taken from them; and it had a meeting place at which a court was held. under the royalty were the nobles. an earl headed each shire as representative of the king. the term "earl" came to denote an office instead of a nobleman. he led the array of his shire to do battle if the shire was attacked. he executed all royal commands. an earl received grants of land and could claim hospitality and maintenance for himself, his officers, and his servants. he collected a third of the revenues derived from tolls and duties levied in the boroughs of his shire. the office tended to be hereditary. royal representatives called "reeves" started to assist them. the reeve took security from every person for the maintenance of the public peace. he also tracked cattle thieves, brought suspects to court, gave judgments according to the doom books, and delivered offenders to punishment. under the earls were the thegns. by service to the king, it was possible for a coerl to rise to become a thegn and to be given land by the king. other thegns performed functions of magistrates. a thegn was later identified as a person with five hides of land, a kitchen, a church, a bell house, a judicial place at the burhgemote [a right of magistracy], and an appointment in the king's hall. he was bound to service in war by virtue of his landholding instead of by his relationship to the king. nobility was now a territorial attribute, rather than one of birth. the wergeld of a thegn was s. when that of a ceorl or ordinary freeman was s. the wergeld of an earl or bishop was four times that of a thegn: s. the wergeld of a king or archbishop was six times that of a thegn: s. the higher a man's wergeld, the higher was his legal status in the scale of punishment, giving credible evidence, and participation in legal proceedings. the sokemen were freemen who had inherited their own land, chose their own lord, and attended and were subject to their lord's court. that is, their lord has sake [sac] and soke [soc] jurisdiction over them - the right to hold a court and to receive the profits of jurisdiction. a ceorl typically had a single hide of land. a smallholder rented land of about acres from a landlord, which he paid by doing work on the lord's demesne [land held by the one lowest in the scale of holding who has a general right of doing with it what he pleases] land, paying money rent, or paying a food rent such as in eggs or chickens. smallholders made up about two fifths of the population. a cottager had one to five acres of land and depended on others for his living. among these were shepherds, ploughmen, swineherds, and blacksmiths. they also participated in the agricultural work, especially at harvest time. it was possible for a thegn to become an earl, probably by the possession of forty hides. he might even acquire enough land to qualify him for the witan. women could be present at the witanagemot and shiregemote [meeting of the people of the shire]. they could sue and be sued in the courts. they could independently inherit, possess, and dispose of property. a wife's inheritance was her own and under no control of her husband. marriage required the consent of the lady and her friends. the man also had to arrange for the foster lean, that is, remuneration for rearing and support of expected children. he also declared the amount of money or land he would give the lady for her consent, that is, the morgengift, and what he would bequeath her in case of his death. it was given to her on the morning after the wedding night. the family of the bride was paid a "mund" for transferring the rightful protection they possessed over her to the family of the husband. if the husband died and his kindred did not accept the terms sanctioned by law, her kindred could repurchase the rightful protection. if she remarried within a year of his death, she had to forfeit the morgengift and his nearest kin received the lands and possessions she had. the word for man was "waepnedmenn" or weaponed person. a woman was "wifmenn" or wife person, with "wif" being derived from the word for weaving. great men and monasteries had millers, smiths, carpenters, architects, agriculturists, fishermen, weavers, embroiders, dyers, and illuminators. for entertainment, minstrels sang ballads about heroes or bible stories, harpers played, jesters joked, and tumblers threw and caught balls and knives. there was gambling, dice games, and chasing deer with hounds. fraternal guilds were established for mutual advantage and protection. a guild imposed fines for any injury of one member by another member. it assisted in paying any murder fine imposed on a member. it avenged the murder of a member and abided by the consequences. it buried its members and purchased masses for his soul. mercantile guilds in seaports carried out commercial speculations not possible by the capital of only one person. there were some ale houses, probably part of certain dwellings. it was usual for a dying man to confess his sins to a priest. for the sake of his soul, the priest often suggested the man give some of his chattel to the church, the poor, or other pious uses. by the s, the words of a dying man giving chattel for the sake of his soul were expected to be carried out. later is the "post obit gift" by which a man gives land to the church, with the king's consent, but enjoys the land during his lifetime by stating in writing "i give certain land after my death" in a special "book". the church takes possession of the land after his death. he may make a conditional such gift, leaving the land to his wife for her life with a rent paid to the church and the church taking possession of the land on her death. these two procedures coalesce into one written will used in the s, s, and s. this will also includes distributions to family and kinsmen and perhaps to creditors. if the will is made by the very great people: kings, queens, king's sons, bishops, earldormen, and king's thegns, it requires the king's consent, which may be bought by a large heriot. and a bishop usually sets his cross to the will, denouncing any who infringe it to the torments of hell. the dead man's parish church is paid a mortuary when he is buried. the law the special authority of the king and his peace gradually superseded the customary jurisdiction of the local courts as to preservation of the peace and punishment of offenses. all criminal offenses became breaches of the king's peace and were deemed acts of personal disobedience and made an offender the king's enemy. this notion developed from the special sanctity of the king's house and his special protection of his attendants and servants. an offender made fines to the king for breach of his peace and fines and forfeitures to him from court decisions in criminal and civil cases. offenses especially dealt with in various parts of the anglo-saxon laws were treason, homicide, wounding, assault, and theft. treason to one's lord, especially to the king, was punishable by death. compassing or imagining the king's death was treason. king alfred collected regulations from various church synods and commanded that many of them which english forefathers had observed to be written out - those which appealed to him; and many of those that did not appeal to him he rejected, with the consent of his witan or commanded them to be observed in a different way. "these are the regulations which the almighty god himself spoke to moses and ordered him to observe and subsequently the only-born son of the lord, our god, that is the savior christ confirmed ...": . do not love other strange gods before me. . do not speak my name idly, for you will not be guiltless with me if you idly speak my name. . remember to hallow the rest-day. work for yourselves six days, and on the seventh day rest yourselves. for in six days, god the father made the heavens and the earth, the seas and all creatures that are in them, and rested himself on the seventh day, and therefore god has sanctified it. . honour your father and your mother that god gave you so that you may be the longer living on earth. . do not kill. . do not lie in sexual union secretly. . do not steal. . do not speak false evidence. . do not wish for your neighbour's property unrightfully. . do not make yourselves golden or silver gods. . if anyone buy a christian slave, let him serve for six years and on the seventh let him be free without payment. with such clothes as he entered into service, let him leave with. if he has a wife of his own providing, let her leave with him. if the master provided him with a wife, both she and her children shall belong to the master. if the slave then says `i do not want to leave my master or my wife or my child or my property', let his master bring him to the door of the temple and perforate his ear with an awl as a sign that he shall ever afterwards be a slave. . though someone sell his daughter into slavery do not let her be a slave entirely as are other maid servants. he has not the right to sell her abroad among foreign people. but if he who bought her does not care for her, let her be free among a foreign people. but if he i.e. the purchaser allows his son to cohabit with her, give her the morning gift and ensure that she has clothing and that she has the value of her maidenhood, that is the dowry - let him give her that. if he does none of those things for her, then she shall be free. . the person who slays another deliberately shall suffer death. he that has killed another in self defense or involuntarily or unintentionally, as god delivered him i.e. the victim into his hands and providing he i.e. the killer did not set a trap for him - in that case let him be worthy of his life, and of settling by customary compensation, if he should seek asylum. if however anyone deliberately and intentionally kills his neighbour treacherously, pluck him from my altar so that he should suffer death. . he that attacks his father or his mother shall suffer death. . he that abducts a freeman and sell him, and it is proved so that he cannot absolve himself, let him suffer death. he that curses his father or his mother, let him suffer death. . if someone attacks his neighbour with a stone or with his fist, but he i.e. the victim can still get about with the aid of a staff, let him i.e. the aggressor provide him with a doctor and do his i.e. the victim's work for him for as long as he i.e. the victim cannot himself. . he that attacks his own non-free servant or his maidservant, and they are not dead as a result of the attack but live two or three days, he i.e. the aggressor shall not be so entirely guilty, because it was his own property he damaged. but if the slave be dead the same day, then the guilt rests on him i.e. the aggressor. . if anyone in the course of a dispute injure a pregnant woman, let him make compensation for the hurt as judges decide in his case. if she be dead, let him give life for life. . if anyone put out another's eye, let him give his own for it. tooth for tooth. hand for hand. foot for foot. burn for burn. wound for wound. bruise for bruise. . if anyone strike the eye of his slave or maidservant out and so makes them one-eyed, let him free them for that. if he strike out a tooth, let him do the same. . if an ox gore a man or woman so that they are dead, it it be stoned to death and do not let the flesh be eaten. the owner shall not be liable if the ox was butting two days before that or even three and the owner did not know of it. but if he knew of it and would not shut it i.e. the animal in, and then it killed a man or woman, let it be stoned to death and let the master be killed or made to pay as the witan consider proper. if it gore a son or daughter, let the same penalty apply. but if it gore a slave or serving-woman, let the owner give shillings of silver and let the ox be stoned to death. . if anyone dig a well or open up a closed one and does not close it up again, let him pay for whatever cattle fall in; but let him have the dead animal for his own use. . if an ox wound another man's ox so it is dead, let them sell the live ox and share the proceeds, and also the flesh of the dead ox. but if the owner knew the ox was butting and would not restrain it, let him hand over the other i.e. live ox for it but let him have all the flesh of the dead ox for his own use. . if anyone steal another man's ox and kill or sell it, let him give two oxen in restitution. and four sheep for one stolen. if he i.e. the thief does not have anything to give in restitution, let him be sold himself to raise the money. . if a thief break into a man's house by night and is killed there, he i.e. the house-owner shall not be guilty of manslaughter. but if he i.e. the house-owner does this after sunrise, he is guilty of manslaughter, and shall himself perish, unless he acted in self-defence. if there is found in the possession of the living thief things he had already stolen, let him make restitution for it two-fold. . if anyone damage another man's vineyard or his crops or any part of his estate, let him pay compensation according to how it is assessed. . if a fire is lit in order to burn rubbish, let him who started the fire pay compensation for any consequent damage. . if anyone entrusts any possession to his friend and the friend appropriates it for himself, let him i.e. the friend clear himself and prove that he committed no fraud in the matter. if it was livestock, and he says that raiders took it, or it perished of itself, and if he has proof, he need not pay up. but if he has no proof, and the original owner does not believe him, let him make an oath to clear himself. . if anyone seduce an uncommitted woman and sleeps with her, let him pay for her and take her then as his wife. but if the woman's father is unwilling to let her go, then let the seducer hand over money in proportion to her dowry. . the women who are accustomed to harbour enchanters and wizards and witches - do not allow them to live. . and he that has intercourse with animals shall suffer death. . and he that sacrifices to idols, rather than to god alone, let him suffer death. . do not harass visitors from abroad and foreigners, for you were formerly strangers on the land of the egyptians. . do not harm widows and step-children, neither do them any injury. if you do otherwise, they will call upon me and i will listen to them, and then i will slay you with my sword and i will ensure that your wives shall be widows and your children orphans. . if you hand over money as a loan to your comrade who wishes to live with you, do not coerce him like an underling and do not oppress him with the interest. . if someone has only a single garment to cover and clothe himself with and he hands it over as a pledge, let it be returned before the sun sets. if you do not do so then he will call unto me, and i will listen to him because i am very clement. . do not reproach you lord, nor curse the lord of the people. . your tithe i.e. tenth-part of profit and your first-fruits of moving animals and growing crops, offer to god. . all the flesh that wild animals leave, do not eat it but give it to the dogs. . do not bother to give credence to the word of a false man, and do not approve his opinions; do not repeat any of his assertions. . do not join in the false judgment and evil aspirations of the many nor join in their rumours and outcry, against your own conscience, at the incitement of some ignorant person. do not support them. . if the stray cattle of another man come into your possession, though it be the property of your enemy, let him know about it. . judge equably, do not lay down one rule for the rich, another for the poor; do not decide one way for a friend, another for a foe. . always shun falsehood. . never slay a righteous and innocent man. . never accept bribes, for they very often blind the minds of wise men and pervert their words. . do not behave unkindly to foreigners and visitors from abroad; do not harass them with unjust acts. . never swear an oath by heathen gods, nor in any circumstances call upon them. alfred also issued a set of laws to cover the whole country that he derived from laws of various regional kings in england as follows: " . first we insist that there is particular need that each person shall keep his oath and his pledge carefully. if anyone be compelled to give either of these wrongly, either to support treachery to his lord or to provide any unlawful aid, then it is better to forswear than to fulfil. but if he pledge himself to that which it is right for him to fulfil and fails, let him submissively hand over his weapons and his possessions to his friends to keep, and stay forty days in prison in a property of the king. let him undergo there whatever the bishop prescribes as penance, and let his kinsmen feed him if he himself has no food. if he has no kin or has no food, let the king's officer feed him. if one has to compel him to this i.e. to surrender, and otherwise he is unwilling to co-operate - if they have to bind him he shall forfeit his weapons and his possessions. if he is slain while resisting, let him lie uncompensated. if he makes an escape before the time is up, and he is recaptured, let him stay forty days in prison as he would have previously. but if he gets away, let him be banished and excommunicated from all the churches of christ. further, if someone has provided surety for him, let him compensate for the breach of surety as custom require him, and atone for the breach of pledge as his confessor imposes in his case. . if anyone seek out as sanctuary for any offence any of the monastic houses to which the king's revenue applies, or any other exempt community that is worthy of respect he shall have a period of three days of immunity, unless he wants to negotiate before that. if someone harms him during that period, either by assault or by fettering him,, or by a penetrating wound, let the aggressor pay compensation for each of such attacks according to proper practice, both with wergeld and with a fine, and shillings to that community, as compensation for breach of sanctuary, and let his own possessions be forfeit. . if anyone violate the king's surety, let him pay compensation for the original charge as customary law direct, and for the violation of surety with five pounds of the purer pennies. in the case of breach of an archbishop's surety or protection, let him compensate with three pounds. for violation of the surety or protection of another bishop or official [earldorman], let him make compensation with two pounds. . if anyone plot against the king's life, either directly or by harbouring outlaws or indirectly through the agency of his men, let him be liable with his life and with all that he owns. if he desire to prove himself loyal, let him do that by paying a king's wergeld. similar protection we ordain for all ranks, both common and noble [earl]: whoever plots against his master's life shall be liable with his life and with all that he owns - or let him show his loyalty by paying his master's wergeld. . also we appoint to every church that a bishop has consecrated this right of sanctuary: that if a party to a feud run or ride to the church, then no one may drag him forth for seven days. if however anyone does that, then let him be liable at the rate of breach of a king's protection and at the rate of breach of church sanctuary - more if he take more from the site. [and the sanctuary seeker shall be safe] if he can survive hunger, and unless he himself try to fight his way out. if the community have greater need of their church, let them keep him in another building, and let that not have the more doors than the church itself; let the church official ensure that no one give the sanctuary-seeker food during that period. if he himself is willing to hand over his weapons to his foes, let them keep him for days and inform his kin about him. also it shall count as sanctuary if some man seek out a church about any offence that had not previously been revealed, and there confess himself in god's name - let the penalty be half remitted. he that steal on sunday or at yule or at easter or on holy thursday or on the rogation days - for each of those we intend that there should be a double-penalty, as during lent. . if anyone steal something in a church, let him pay a plain compensation and the fine such as they consider appropriate to the plain compensation, and let them strike the hand off with which he did it i.e. the deed. if he wishes to redeem his hand, and they consent to that, let him pay in proportion to his wergeld. . if anyone fights in the king's hall or draw his weapon, and he is seized, let the penalty be at the king's judgement, either death or life, as he is willing to grant him. if he escapes and is captured later, let him pay in proportion to his wergeld, and atone for the offence with wergeld and fine, as he may deserve by his act. . if anyone abducts a nun of a nunnery without the king's or the bishop's leave, let him pay shillings, half to the king, half to the bishop and the church patron who had charge of the nun. if she lives longer than he that abducted her, let her not have any of his estate. if she bears a child, let that not have any more of the estate than the mother. if anyone slay her child let him pay the king the maternal kindred's share; to the paternal kin let him pay their share. . if anyone slay a woman with child, while the child still be within her, let him pay full compensation for the woman and half compensation for the child according to the wergeld of the father's kin. let the fine payable to the king always be shillings, until the corresponding simple compensation rises to shillings. when the simple compensation rises to that level, then let the fine be shillings. formerly there was a defined fine for a gold-thief, and a horse-thief and a bee-thief and many special fines greater than others. now all are alike except for an illegal slayer and that is shillings. . if a man has intercourse with the wife of a shilling wergeld man, let him pay in compensation shillings to the husband. for a shilling wergeld man i.e. husband, let him pay in compensation shillings. for a common man [ceorl] i.e. husband, let him make compensation of shillings. . if someone grabs the breast of a common woman, let him compensate with five shillings. if he throws her to the ground but does not have sexual intercourse with her, let him compensate with shillings. if he has sexual intercourse with her let him compensate with sixty shillings. if some other man had previously lain with her, then let the compensation be half that. if someone accuse her of complicity, let her clear herself with an oath guaranteed by sixty hides of land, or forfeit half the compensation. if this happens to a nobly born woman, let the compensation increase in proportion to the wergeld. . if someone burns or cuts down another person's trees without permission, let him pay over shillings for each substantial tree, and thereafter, no matter how many there are, five pence for each tree, and thirty shillings as a fine. . in the course of their joint work felling trees, if someone is killed by accident, let the tree involved be given to his kin, and let them remove it off the property within days; otherwise let him possess it that owns the forest. . if someone is born dumb or deaf, so that he can neither deny or confess his sins, let the father make compensation for his misdeeds. . if someone fights or draws his weapon in the presence of an archbishop, let him make compensation with shillings. if this occurs before another bishop or royal official [earldorman] let him make compensation with shillings. . if someone steals a cow or mare and drives off a foal or calf, let him pay over one shilling as well as paying compensation for the adult animals according to their value. . if anyone entrust a child into the keeping of others, and he i.e. the offspring die while in that guardianship, let him that did the fostering prove his innocence of any crime if anyone accuse him of it. . if anyone grabs at a nun's clothing or breast with sexual intent, unless with her consent, let him pay double the rate of compensation we previously arranged for a lay-person. if she commit adultery and she is a betrothed woman, if she is a commoner, let shillings be paid in compensation to the guarantor, and let that be in livestock or cattle, but let no one give any human as part of it. if she be of shilling wergeld, let shillings be paid in compensation to the guarantor. if she be of shilling wergeld, let compensation of shillings be paid to the guarantor. . if anyone lends his weapon to another so that he may kill with it, they may combine, if they are willing, in the matter of paying the wergeld. if they are unwilling to co-operate, let him that proffered the weapon pay a third part of the wergeld and a third part of the fine. if he i.e. the loaner of the weapon prefer to clear himself and assert that he knew of no evil-intent in making the loan, he may do so. . if someone entrust cattle to another man's monk, without the approval of the patron if that monk, and it gets lost, let he that originally owned it suffer the loss. . if a priest slay another man, let all that he i.e. the priest brought into the monastic community be turned over to the possession of the victim's representatives, and let the bishop unfrock him; then he shall be removed from the monastery, unless the civil patron interceded for him. . if someone wishes in the local assembly to declare a claim for debt to the king's officer, and then wishes to cancel it, let him impute i.e. transfer it to a truer source if he can. if he cannot, let him forfeit the single value. . if a dog rends or bites someone, for the first misdeed let the owner hand over shillings, if he is still giving it food. for as second occurrence, let him give shillings, and for a third shillings. if, upon any of these misdeeds, the dog escapes, nonetheless the penalty proceeds. if the dog commit more misdeeds and he i.e. the owner still keeps him, let him pay compensation at the level of a full wergeld as well as wound-compensation according to what he i.e. the dog has done. . if an ox wounds someone, let him i.e. the owner hand the animal over or come forward with some solution. . if someone forces a commoner's slave-woman to sexual intercourse, let him compensate the owner with shillings and pay shillings fine. if a male slave compel a female slave to sexual intercourse, let him atone with his testicles. . if someone force an underage woman into sexual intercourse, let the compensation be as that of an adult person. . if someone without kin on his father's side gets into a fight and kills someone, if he has maternal relatives, let them pay a third part of the wergeld; and a third part his guild-brethren; for a third part unpaid let him flee. if he has no maternal relatives, let the guild-brethren pay a half; for a half unpaid let him flee. . if someone kill a man so circumstanced and if he has no kinfolk, let them pay half the wergeld to the king, half to his guild-brethren. . if anyone in a group kills a shilling wergeld man who is guiltless, let him that acknowledges the blow pay over wergeld and fine, and let every man who was of the party hand over shillings in token of his complicity. . if it is a case of a shilling wergeld man, let each of them pay shillings as a token of their complicity, and let him that struck the fatal blow pay wergeld and fine. . if he that is killed is a shilling wergeld man, let each of them pay shillings, and let the one who struck the fatal blow pay wergeld and fine. if a group commit this sort of killing, and later deny responsibility on oath, let them all be accused, and let them pay over the wergeld as a group, and together pay one fine such as corresponds to the wergeld. . if someone commits slander and it is proved against him, let him make atonement with no lighter penalty than having is tongue cut out. it i.e. the tongue must not be redeemed for any lesser value than would be reckoned in proportion to the wergeld. . if someone reproach another with breach of church-witnessed pledge and wishes to accuse him of not fulfilling any of those pledges that he gave him, let the accuser make his preliminary oath in four churches, and the other i.e. the accused, if he wishes to assert his good faith - let him do that in twelve churches. . also it is laid down for traders that they should produce before the king's officer at the local assembly those people that they are taking inland with them, and let it be established how many of them there are. and let them take only such men as they can afterward be accountable for at the local assembly. an if they have need of more men along with them on their journey, let it always be declared, as often as is necessary, to the king's officer before the assembly. . if someone restrains a free man who is innocent, let him pay compensation of ten shillings. if he flogs him, compensation of twenty shillings. if he put him to torture compensation of thirty shillings. if as a humiliation he shave his head like a homolan, let him pay compensation of ten shillings. if he shaves him i.e. his head like a priest's, without binding him let him pay compensation of thirty shillings. if he shaves off his beard, let him pay compensation of twenty shillings. if he ties him up and then shaves his head like a priest's, let him pay compensation of sixty shillings. . it is established that if someone has a spear over his shoulder and someone else impales himself upon it, he i.e. the spear-carrier shall pay the wergeld without any fine. if he is impaled from in front, let him i.e. the spear-carrier pay the wergeld. if someone accuses him i.e. the spear-carrier of deliberately doing it, let him assert his innocence at a rate corresponding to the fine, and by that finish with the fine. and this applies if the point is above the rest of the shaft; if they are both level, point and shaft, let it count as no risk. . if someone wants to seek a new lord, transferring from one district to another district, let him do it with the knowledge of the chief officer to whom he was originally responsible in his shire. if he does it without his i.e. the officer's knowledge, let him who harbours him as his follower pay over shillings as a fine. but let him divide it, paying the king half in the shire where the man was originally answerable, and half in that he has moved to. if he i.e. the man who moves had done anything wrong where he came from, let him who receives him as his follower pay the compensation and a fine of shillings to the king. . if someone starts a fight in front of the king's officer at an assembly, let him pay compensation of wergeld and a fine, as it is customary; and as a priority a fine of shillings to the officer [earldorman] concerned. if he disturb the assembly by drawing a weapon, let him pay shillings to the officer by way of fine. if something of this sort occurs before the king's officer's deputy or a royal priest, let him pay shillings by way of fine. . if someone starts a fight on the floor of a free man's house, let him pay compensation of six shillings to the freeman. if he draws his weapon but does not fight, let the compensation be half that. if either of these offences takes place in the house of a shilling wergeld man, let the rate rise to triple the compensation due the freeman. in the case of a shilling wergeld man, a rate twice that of the compensation of the shilling wergeld man. . for breaking into a royal residence the penalty shall be shillings. into an archbishop's, ninety shillings. into another bishop's or a royal officer's, shillings. into a shilling werwgeld man's, thirty shillings. into a shilling wergeld man's fifteen shillings. for breaking into a freeman's property the penalty shall be five shillings. if something of this kind takes place while the levy [fyrd] is on duty elsewhere, or during lent, let it be a double compensation. if someone sets aside holy custom publicly in lent without an exemption, let him pay a compensation of shillings. . the man who has charter land [bocland] which his kin left him, is not allowed, we enact, to part with it outside his kin-group, if there is written evidence or spoken witness that it was forbidden to be done by those people who originally acquired it or by those who passed it to him. let him i.e. the one who opposes the alienation process declare any such stipulation in the presence of the king and the bishop, with his own kin attending. . also we command that the man who knows his enemy is quiescent at home should not start a fight before he has asked him for justice. if he has the strength to surround his enemy and besiege him, let him contain him for days within and not attack him if he i.e. the enemy is willing to abide within. after seven days if he is willing to surrender and hand over his weapons, let him i.e. the avenger keep him unharmed for thirty days and inform his kinsmen and his friends about him. but if he i.e. the enemy flee to a church, let the matter be resolved according to the privilege of the church, as we detailed above. but if he i.e. the avenger does not have the resources to besiege him i.e. the enemy, let him ride to the royal officer and ask him for help. if he i.e. the officer is unwilling to assist, let him ride and ask the king, before he mounts an attack. further, if someone happen upon his enemy and did not know beforehand that he was quiescent at home, if he i.e. the enemy is willing to hand over his weapons, let him be held for thirty days and inform his friends about him; if he is not willing to hand over his weapons then he i.e. the avenger may attack him. if he i.e. the enemy is willing to surrender and hand over his weapons and yet someone still attacks him, let the aggressor pay over wergeld and wound compensation, according to what he has done, and pay a fine, and lose his kin-status. we also declare someone may fight in support of his lord without blame, if anyone has attacked the lord; so too the lord may fight in support of his follower. in the same way, someone may fight on behalf of his blood relative if someone attack him wrongfully, but not take the side of a kinsman against his lord - that we do not permit. someone may fight blamelessly if he discovers another with his lawful wife behind closed doors or under the one cover, or with his legitimate daughter, or with his legitimate sister or with his mother if she was given lawfully to his father. . to all free people let these following days be granted as holidays but not to slaves and servile workers; twelve days at christmas and the day that christ overcame the devil, and st. gregory's commemoration day, and seven days before easter and seven after, and one day at the celebration of st. peter and st. paul and the full week in harvest before st. mary's mass, and one day for the celebration of all hallows. the four wednesdays in the ember weeks shall be granted to all slaves to sell to anyone that pleases them to anything either that any man will give them in god's name or what they in any spare time can manage." .- . the compensations for wounds is as follows: head if both bones of the head be pierced s., head if the outer bone only be pierced s.; an inch long wound in the area of the hair s., an inch long wound in the front of the hair s.; striking off the other ear s., if the hearing be affected so that he cannot hear s.; putting out an eye s. / d., if the eye stay in the head but he can see nothing with it / of the compensation be remitted; striking off a nose s.; striking a front tooth s., a back tooth s., a canine tooth s.; severing cheeks s., breaking a chin bone s.; perforating a windpipe s.; removing a tongue the same compensatin for any eye; wounding in the shoulder so that the muscle fluid flows out s.; shattering the arm above the elbow s.; shattering both arm bones s.; striking off the thumb s., if the nail is struck off s.; striking off the forefinger s., for the nail s.; striking off the middle finger s., for the nail s.; striking off the ring finger s., for the nail s.; striking off the little finger s., for the nail s.; wounding in the belly s., if the wound go through the body s. for each opening; perforating the thigh or hip s., if it be disabled s.; piercing the leg below the knee s., if he is disabled below the knee s.; striking off the great toe s., the second toe s., the middle toe s., the fourth toe s., the little toe s.; wounding in the testicles so that he cannot bear children s.; cutting off the arm below the elbow with the hand cut off s., wounding before the hair-line and below the sleeve and below the knee twice the value; permanently damaging the loins s., it they are stabbed s., if they are pierced through s.; wounding in the shoulder if the victim be alive s.; maiming a hand outwardly, providing it can be treated effectively s., if half the hand be lost s.; breaking a rib without breaking the skin s., if the skin be broken and the bone be extruded s.; cutting away an eye hand or foot s. / d.; cutting off the leg at the knee s.; breaking a shoulder s.; hacking into a shoulder so that the bone extrudes s.; severing the tendon of the foot and if it can be treated so that will be sound again s., but if he is lame on account of the wound and he cannot be cured s.; severing the lesser tendon s.; severing the muscles up by the neck and damage them so severely that he has no control over them and however lives on thus maimed s., unless the witan appoint him a juster and greater sum. judicial procedure cases were held at monthly meetings of the hundred court. the king or one of his reeves, conducted the trial by compurgation, which was an appeal to the supernatural. in compurgation, the one complaining, called the "plaintiff", and the one defending, called the "defendant", each told their story and put his hand on the bible and swore "by god this oath is clean and true". a slip or a stammer would mean he lost the case. otherwise, community members would stand up to swear on behalf of the plaintiff or the defendant as to their reputation for veracity. the value of a man's oath was commensurate with his value or wergeld. a man's brothers were usually his compurgators. the number of compurgators varied according to the nature of the case and the rank of the persons concerned. if there were too few "compurgators", usually twelve in number, or recited poorly, their party lost. if this process was inconclusive, the parties could bring witnesses to declare such knowledge as they had as neighbors. these witnesses, male and female, swore to particular points determined by the court. if compurgation failed, the defendant was told to go to church and to take the sacrament only if he was innocent. if he took the sacrament, he was tried by the process of "ordeal", which was administered by the church. in the ordeal by cold water, he was given a drink of holy water and then bound hand and foot and thrown into water. if he floated, he was guilty beccause the holy water had rejected him. if he sank, he was innocent. it was not necessary to drown to be deemed innocent. in the ordeal by hot water, he had to pick up a stone from inside a boiling cauldron. if his hand was healing in three days, he was innocent. if it was festering, he was guilty. a similar ordeal was that of hot iron, in which one had to carry in his hands a hot iron for a certain distance. in the ordeal of the consecrated morsel, one would swallow a morsel; if he choked on it, he was guilty. the results of the ordeal were taken to indicate the will of god. an archbishop's or bishop's oath was incontrovertible. if they were accused, they could clear themselves with an oath that they were guiltless. lesser ranks could clear themselves with the oaths of at least three compurgators of their rank or, for more serious offenses, undergo the ordeal. the shire and hundred courts were held for free tenants of a lord and the judges were the tenants themselves. the feudal courts were held for unfree tenants and the lord or his steward was the judge. the earl presided over the shire court. he received one-third of the profits of justice. the judges were the owners of certain pieces of land. the shire court was held twice a year. there was little distinction between secular and spiritual jurisdiction. a bishop sat on the shire court. the shire court fulfilled all three functions of government: judicial, legislative, and executive. the courts had no efficient mode of compelling attendance or enforcing their orders, except by outlawing the offender, that is, putting him outside the protection of the law, so that anyone might kill him with impunity. in grave cases, a special expedition could be called against an offender. the individual wronged had his choice of payment in money or engaging in a blood feud. the sums of money of the system of bot, wer, and wite were enormous, and often could not be paid. then a man could be declared outlaw or sold as a slave. if a person was outlawed, he also forfeited all his goods to the king. cases of general importance concerned mayslaying, wounding, and cattle-stealing. a person convicted of murder, i.e. killing by stealth or robbery [taking from a person's robe, that is, his person or breaking into his home to steal] could be hung and his possessions confiscated. a man had a self-help right to arrest a thief hand-habbende [a thief found with the stolen goods in his hands] and a thief back-berend [a thief found with the stolen goods on his back or about his person]. any inanimate or animate object or personal chattel which was found by a court to be the immediate cause of death was forfeited as "deodand", for instance, a tree from which a man fell to his death, a beast which killed a man, a sword of a third party not the slayer that was used to kill a man. the deodand was to go to the dead man's kin so they could wreak their vengeance on it, which in turn would cause the dead man to lie in peace. this is a lawsuit regarding rights to feed pigs in a certain woodland: "in the year which had passed since the birth of christ, and in the course of the second indiction, and during the reign of beornwulf, king of mercia, a council meeting was held in the famous place called clofesho, and there the said king beornwulf and his bishops and his earls and all the councilors of this nation were assembled. then there was a very noteworthy suit about wood pasture at sinton, towards the west in scirhylte. the reeves in charge of the pigherds wished to extend the pasture farther, and take in more of the wood than the ancient rights permitted. then the bishop and the advisors of the community said that they would not admit liability for more than had been appointed in aethelbald's day, namely mast for swine, and that the bishop and the community should have two thirds of the wood and of the mast. the archbishop wulfred and all the councilors determined that the bishop and the community might declare on oath that it was so appointed in aethelbald's time and that they were not trying to obtain more, and the bishop immediately gave security to earl eadwulf to furnish the oath before all the councilors, and it was produced in days at the bishop's see at worcester. at that time hama was the reeve in charge of the pigherds at sinton, and he rode until he reached worcester, and watched and observed the oath, as earl eadwulf bade him, but did not challenge it. here are the names and designations of those who were assembled at the council meeting ..." chapter the times: - there were many large landholders such as the king, earls, and bishops. earls were noblemen by birth, and often relatives of the king. they were his army commanders and the highest civil officials, each responsible for a shire. a breach of the public peace of an earl would occasion a fine. lower in social status were freemen: sokemen, and then, in decreasing order, villani [villeins], bordarii, and cottarii. the servi were the slaves. probably all who were not slaves were freemen. kings typically granted land in exchange for services of military duties, maintaining fortresses, and repairing bridges. less common services required by landlords include equipping a guard ship and guarding the coast, guarding the lord, military watch, maintaining the deer fence at the king's residence, alms giving, and church dues. since this land was granted in return for service, there were limitations on its heritability and often an heir had to pay a heriot to the landlord to obtain the land. a heriot was originally the weapons and armor of a man killed, which went to the king. the heriot of a thegn who had soken [or jurisdiction over their own lands] came to be about s.; of a kings' thegn about four lances, two coats of mail, two swords, and s.; of an earl about eight horses, four saddled and four unsaddled, eight lances, four coats of mail, four swords, and s. there were several thousand thegns, rich and poor, who held land directly of the king. some thegns had soken and others did not. free farmers who had sought protection from thegns in time of war now took them as their lords. a freeman could chose his lord, following him in war and working his land in peace. all able-bodied freemen were liable to military service in the fyrd [national militia], but not in a lord's private wars. in return, the lord would protect him against encroaching neighbors, back him in the courts of law, and feed him in times of famine. but often, lords raided each other's farmers, who fled into the hills or woods for safety. often a lord's fighting men stayed with him at his large house, but later were given land with inhabitants on it, who became his tenants. the lords were the ruling class and the greatest of them sat in the king's council along with bishops, abbots, and officers of the king's household. the lesser lords were local magnates, who officiated at the shire and hundred courts. staghunting, foxhunting, and hawking were reserved for lords who did not work with their hands. every free born person had the right to hunt other game. there was a great expansion of arable land. some land had been specifically allocated to certain individuals. some was common land, held by communities. if a family came to pay the dues and fines on certain common land, it could become personal to that family and was then known as heirland. most land came to be privately held from community-witnessed allotments or inheritance. bookland was those holdings written down in books. this land was usually land that had been given to the church or monasteries because church clerics could write. so many thegns gave land to the church, usually a hide, that the church held / of the land of the realm. folkland was that land that was left over after allotments had been made to the freemen and which was not common land. it was public land and a national asset and could be converted to heirland or bookland only by action of the king and witan. it could also be rented by services to the state via charter. a holder of folkland might express a wish, e.g. by testamentary action, for a certain disposition of it, such as an estate for life or lives for a certain individual. but a distinct act by the king and witan was necessary for this wish to take effect. small private transactions of land could be done by "livery of seisin" in the presence of neighbors. "seisin" is rightful possession. a man in possession of land is presumed to have "seisin", unless and until someone else can establish a better title by legal process. all estates in land could be let, lent, or leased by its holders, and was then known as "loenland". ploughs and wagons could be drawn by four or more oxen or horses in sets of two behind each other. oxenshoes and horseshoes prevented lameness due to cracked hooves. horse collars especially fitted for horses, replaced oxen yoke that had been used on horses. the horse collar did not restrict breathing and enabled horses to use the same strength of oxen. also, horses had better endurance and faster speed. a free holder's house was wood, perhaps with a stone foundation, and roofed with thatch or tiles. there was a main room or hall, with bed chambers around it. beyond was the kitchen, perhaps outside under a lean-to. these buildings were surrounded by a bank or stiff hedge. simple people lived in huts made from wood and mud, with one door and no windows. they slept around a wood-burning fire in the middle of the earthen floor. they wore shapeless clothes of goat hair and unprocessed wool from their sheep. they ate rough brown bread, vegetable and grain broth, ale from barley, bacon, beans, milk, cabbage, onion, apples, plums, cherries, and honey for sweetening or mead. vegetables grown in the country included onions, leeks, celery, lettuce, radish, carrots, garlic, shallots, parsnip, dill, chervil, marigold, coriander, and poppy. in the summer, they ate boiled or raw veal and wild fowl such as ducks, geese, or pigeons, and game snared in the forest. poultry was a luxury food, but recognized as therapeutic for invalids, especially in broth form [chicken soup]. venison was highly prized. there were still some wild boar, which were hunted with long spears, a greyhound dog, and hunting horns. they sometimes mated with the domestic pigs which roamed the woodlands. in september, the old and infirm pigs were slaughtered and their sides of bacon smoked in the rafters for about a month. their intestines provided skin for sausages. in the fall, cattle were slaughtered and salted for food during the winter because there was no more pasture for them. however, some cows and breed animals were kept through the winter. for their meals, people used wooden platters, sometimes earthenware plates, drinking horns, drinking cups from ash or alderwood turned on a foot-peddled pole lathe, and bottles made of leather. their bowls, pans, and pitchers were made by the potter's wheel. water could be boiled in pots made of iron, brass, lead, or clay. water could be carried in leather bags because leather working preservative techniques improved so that tanning prevented stretching or decaying. at the back of each hut was a hole in the ground used as a latrine, which flies frequented. moss was used for toilet paper. parasitical worms in the stool were ubiquitous. most of the simple people lived in villages of about homes circling a village green or lining a single winding lane. there were only first names, and these were usually passed down family lines. to grind their grain, the villagers used hand mills with crank and gear, or a communal mill, usually built of oak, driven by power transmitted through a solid oak shaft, banded with iron as reinforcement, to internal gear wheels of elm. almost every village had a watermill. it might be run by water shooting over or flowing under the wheel. clothing for men and women was made from coarse wool, silk, and linen and was usually brown in color. only the wealthy could afford to wear linen or silk. men also wore leather clothing, such as neckpieces, breeches, ankle leathers, shoes, and boots. boots were worn when fighting. they carried knives or axes under metal belts. they could carry items by tying leather pouches onto their belts with their drawstrings. they wore leather gloves for warmth and for heavy working with their hands. people were as tall, strong and healthy as in the late s, not having yet endured the later malnourishment and overcrowding that was its worst in the s and s. their teeth were very healthy. most adults died in their s, after becoming arthritic from hard labor. people in their s were deemed venerable. boys of twelve were considered old enough to swear an oath of allegiance to the king. girls married in their early teens, often to men significantly older. the lands of the large landholding lords were administered by freemen. they had wheat, barley, oats, and rye fields, orchards, vineyards for wine, and beekeeping areas for honey. on this land lived not only farm laborers, cattle herders, shepherds, goatherds, and pigherds, but craftsmen such as goldsmiths, hawkkeepers, dogkeepers, horsekeepers, huntsmen, foresters, builders, weaponsmiths, embroiders, bronze smiths, blacksmiths, watermill wrights, wheelwrights, wagon wrights, iron nail makers, potters, soap makers (made from wood ashes reacting chemically with fats or oils), tailors, shoemakers, salters (made salt at the "wyches", which later became towns ending with '-wich'), bakers, cooks, and gardeners. most men did carpentry work. master carpenters worked with ax, hammer, and saw to make houses, doors, bridges, milk buckets, washtubs, and trunks. blacksmiths made gates, huge door hinges, locks, latches, bolts, and horseshoes. the lord loaned these people land on which to live for their life, called a "life estate", in return for their services. the loan could continue to their widows or children who took up the craft. mills were usually powered by water. candles were made from beeswax, which exuded a bright and steady light and pleasant smell, or from mutton fat, which had an unpleasant odor. the wheeled plough and iron-bladed plough made the furrows. one man held the plough and another walked with the oxen, coaxing them forward with a stick and shouts. seeds were held in an apron for seeding. farm implements included spades, shovels, rakes, hoes, buckets, barrels, flails, and sieves. plants were pruned to direct their growth and to increase their yield. everyone got together for feasts at key stages of the farming, such as the harvest. easter was the biggest feast. when the lord was in the field, his lady held their estate. there were common lands of these estates as well as of communities. any proposed new settler had to be admitted at the court of this estate. the land of some lords included fishing villages along the coasts. from the sea were caught herrings, salmon, porpoises, sturgeon, oysters, crabs, mussels, cockles, winkles, plaice, flounder, and lobsters. sometimes whales were driven into an inlet by many boats. river fish included eels, pike, minnows, burbot, trout, and lampreys. they were caught by brushwood weirs, net, bait, hooks, and baskets. oysters were so numerous that they were eaten by the poor. the king's peace extended over the waterways. if mills, fisheries, weirs, or other structures were set up to block them, they were to be destroyed and a penalty paid to the king. other lords had land with iron mining industries. ore was dug from the ground and combined with wood charcoal in a shaft furnace to be smelted into liquid form. wood charcoal was derived from controlled charring of the wood at high temperatures without using oxygen. this burned impurities from it and left a purer carbon, which burned better than wood. the pure iron was extracted from this liquid and formed into bars. to keep the fire hot, the furnaces were frequently placed at windswept crossings of valleys or on the tops of hills. some lords had markets on their land, for which they charged a toll for participation. there were about fifty markets in the nation. cattle and slaves (from the word "slav") were the usual medium of exchange. an ox was still worth about d. shaking hands was symbolic of an agreement for a sale, which had to be carried out in front of witnesses at the market for any property worth over d. the higher the value of the property, the more witnesses were required. witnesses were also required for the exchange of property and to vouch for cattle having being born on the property of a person claiming them. people traveled to markets on deep, sunken roads and narrow bridges kept in repair by certain men who did this work as their service to the king. the king's peace extended to a couple of high roads, i.e. highways, running the length of the country and a couple running its width. salt was used throughout the nation to preserve meat over the winter. inland saltworks had an elaborate and specialized organization. the chief one used saltpans and furnaces to extract salt from natural brine springs. they formed little manufacturing enclaves in the midst of agricultural land, and they were considered to be neither large private estates headed by a lord nor appurtenant to such. they belonged jointly to the king and the local earl, who shared, at a proportion of two to one, the proceeds of the tolls upon the sale of salt and methods of carriage on the ancient salt ways according to cartload, horse load, or man load. sometimes there were investors in a portion of the works who lived quite at distance away. the sales of salt were mostly retail, but some bought to resell. peddlers carried salt to sell from village to village. some smiths traveled for their work, for instance, stonewrights building arches and windows in churches, and lead workers putting lead roofs on churches. an example of a grant of hides of land is: "[god has endowed king edred with england], wherefore he enriches and honors men, both ecclesiastic and lay, who can justly deserve it. the truth of this can be acknowledged by the thegn aelfsige hunlafing through his acquisition of the estate of hides at alwalton for himself and his heirs, free from every burden except the repair of fortifications, the building of bridges and military service; a prudent landowner church dues, burial fees and tithes. [this land] is to be held for all time and granted along with the things both great and small belonging to it." a bishop gave land to a faithful attendant for his life and two other lives as follows: "in a.d., i, bishop werfrith, with the permission and leave of my honorable community in worcester, grant to wulfsige, my reeve, for his loyal efficiency and humble obedience, one hide of land at aston as herred held it, that is, surrounded by a dyke, for three lives and then after three lives the estate shall be given back without any controversy to worcester." at seaports on the coast, goods were loaded onto vessels owned by english merchants to be transported to other english seaports. london was a market town on the north side of the thames river and the primary port and trading center for foreign merchants. streets that probably date from this time include milk, bread, and wood streets, and honey lane. there were open air markets such as billingsgate. there were wooden quays over much of the river front. houses were made of wood, with one sunken floor, or a ground floor with a cellar beneath. some had central stone hearths and earth latrines. there were crude pottery cooking pots, beakers and lamps, wool cloth, a little silk, simple leather shoes, pewter jewelry, looms, and quernstones (for grinding flour). wool, skins, hides, wheat, meal, beer, lead, cheese, salt, and honey were exported. wine (mostly for the church), fish, timber, pitch, pepper, garlic, spices, copper, gems, gold, silk, dyes, oil, brass, sulphur, glass, slaves, and elephant and walrus ivory were imported. goods from the continent were sold at open stalls in certain streets. furs and slaves were traded. there was a royal levy on exports by foreigners merchants. southwark, across the thames river from london,was reachable by a bridge. southwark contained sleazy docks, prisons, gaming houses, and brothels. guilds in london were first associations of neighbors for the purposes of mutual assistance. they were fraternities of persons by voluntary compact to assist each other in poverty, including their widows or orphans and the portioning of poor maids, and to protect each other from injury. their essential features are and continue to be in the future: ) oath of initiation, ) entrance fee in money or in kind and a common fund, ) annual feast and mass, ) meetings at least three times yearly for guild business, ) obligation to attend all funerals of members, to bear the body if need be from a distance, and to provide masses for the dead, ) the duty of friendly help in cases of sickness, imprisonment, house burning, shipwreck, or robbery, ) rules for decent behavior at meetings, and ) provisions for settling disputes without recourse to the law. both the masses and the feast were attended by the women. frequently the guilds also had a religious ceremonial to affirm their bonds of fidelity. they readily became connected with the exercise of trades and with the training of apprentices. they promoted and took on public purposes such as the repairing of roads and bridges, the relief of pilgrims, the maintenance of schools and almshouses, and the periodic performance of pageants and miracle plays telling scriptural history, which could last for several days. the devil often was prominent in miracle plays. many of these london guilds were known by the name of their founding member. there were also frith guilds (peace guilds) and a knights' guild. the frith guild's main object was to enforce the king's laws, especially the prevalent problem of theft. they were especially established by bishops and reeves. members met monthly and contributed about d. to a common fund, which paid a compensation for items stolen. they each paid s. towards the pursuit of the thief. the members were grouped in tens. members with horses were to track the thief. members without horses worked in the place of the absent horse owners until their return. when caught, the thief was tried and executed. overwhelming force was used if his kindred tried to protect him. his property was used to compensate the victim for his loss and then divided between the thief's wife, if she was innocent, the king, and the guild. owners of slaves paid into a fund to give one half compensation to those who lost slaves by theft or escape, and recaptured slaves were to be stoned to death or hanged. the members of the peace guild also feasted and drank together. when one died, the others each sang a song or paid for the singing of fifty psalms for his soul and gave a loaf. the knights' guild was composed of thirteen military persons to whom king edgar granted certain waste land in the east of london, toward aldgate, and also portsoken, which ran outside the eastern wall of the city to the thames, for prescribed services performed, probably defense of the vulnerable east side of the city. this concession was confirmed by king edward the confessor in a charter at the suit of certain citizens of london, the successors of these knights. edward granted them sake and soke, the right to hold a court for the offender and to receive the profits of jurisdiction, over their men. edward the confessor made these rules for london: . be it known that within the space of three miles from all parts outside of the city a man ought not to hold or hinder another, and also should not do business with him if he wish to come to the city under its peace. but when he arrives in the city, then let the market be the same to the rich man as to the poor. . be it also known that a man who is from the court of the king or the barons ought not to lodge in the house of any citizen of london for three nights, either by privilege or by custom, except by consent of the host. for if he force the host to lodge him in his house and there be killed by the host, let the host choose six from his relatives and let him as the seventh swear that he killed him for the said cause. and thus he will remain quit of the murder of the - - deceased towards the king and relatives and lords of the deceased. . and after he has entered the city, let a foreign merchant be lodged wherever it please him. but if he bring dyed cloth, let him see to it that he does not sell his merchandise at retail, but that he sell not less than a dozen pieces at a time. and if he bring pepper, or cumin, or ginger, or alum, or brasil wood, or resin, or incense, let him sell not less than fifteen pounds at a time. but if he bring belts, let him sell not less than a thousand at a - - time. and if he bring cloths of silk, or wool or linen, let him see that he cut them not, but sell them whole. but if he bring wax, let him sell not less than one quartanum. also a foreign merchant may not buy dyed cloth, nor make the dye in the city, nor do any work which belongs by right to the citizens. . also no foreign merchant with his partner may set up any market within the city for reselling goods in the city, nor may he approach a citizen for making a bargain, nor may he stop longer in the city. every week in london there was a folkmote at st. paul's churchyard, where majority decision was a tradition. by , it had lost much of its power to the husting [household assembly in danish] court. the folkmote then had responsibility for order and was the sole authority for proclaiming outlaws. it met three times a year at st. paul's churchyard and there acclaimed its sheriff and its justiciar, or if the king had chosen his officer, heard who was chosen and listened to his charge. it also yearly arranged the watch and dealt with risks of fire. it was divided into wards, each governed by an alderman who presided over the wardmote, and represented his ward at the folkmote. each guild became a ward. the chief alderman was the portreeve. london paid one-eighth of all the taxes of england. later in the towns, merchant guilds grew out of charity associations whose members were bound by oath to each other and got together for a guild feast every month. some traders of these merchant guilds became so prosperous that they became landholders. many market places were dominated by a merchant guild, which had a monopoly of the local trade. in the great mercantile towns all the land and houses would be held by merchants and their dependents, all freeholders were connected with a trade, and everyone who had a claim on public office or magistry would be a member of the guild. the merchant guild could admit into their guild country villeins, who became freemen if unclaimed by their lords for a year and a day. every merchant who had made three long voyages on his own behalf and at his own cost ranked as a thegn. there were also some craft guilds composed of handicraftsmen or artisans. escaped bonded agricultural workers, poor people, and traders without land migrated to towns to live, but were not citizens. towns were largely self-sufficient, but salt and iron came from a distance. the king's established in every shire at least one town with a market place where purchases would be witnessed, and a mint where reliable money was coined by a moneyer, who put his name on his coins. there were eight moneyers in london. coins were issued to be of value for only a couple of years. then one had to exchange them for newly issued ones at a rate of about old for or new. the difference constituted a tax. roughly % of the people lived in towns. some took surnames such as tanner, weaver, or carpenter. some had affectionate or derisive nicknames such as clear-hand, fresh friend, soft bread, foul beard, money taker, or penny purse. craftsmen in the s included goldsmiths, embroiderers, illuminators of manuscripts, and armorers. edward the confessor, named such for his piety, was a king of years who was widely respected for his intelligence, resourcefulness, good judgment, and wisdom. his educated queen edith, whom he relied on for advice and cheerful courage, was a stabilizing influence on him. they were served by a number of thegns, who had duties in the household, which was composed of the hall, the courtyard, and the bedchamber. they were important men - thegns by rank. they were landholders, often in several areas, and held leading positions in the shires. they were also priests and clerics, who maintained the religious services and performed tasks for which literacy was necessary. edward was the first king to have a "chancellor", who was the first great officer of state. he kept a royal seal and was the chief royal chaplain. he did all the secretarial work of the household and court, drew up and sealed the royal writs, conducted the king's correspondence, and kept all the royal accounts. the word "chancellor" signified a screen behind which the secretarial work of the household was done. he had the special duty of securing and administering the royal revenue from vacant benefices. the second great office was that of treasurer, who headed the exchequer. the most important royal officers were the chamberlains, who took care of the royal bedchamber and adjoining wardrobe used for dressing and storage of valuables, and the priests. these royal officers had at first been responsible only for domestic duties, but gradually came to assume public administrative tasks. edward wanted to avoid the pressures and dangers of living in the rich and powerful city of london. so he rebuilt a monastic church, an abbey, and a palace at westminster about two miles upstream. he started the growth of westminster as a center of royal and political power; kings' councils met there. royal coronations took place at the abbey. since edward traveled a lot, he established a storehouse-treasury at winchester to supplement his traveling wardrobe. at this time, spanish stallions were imported to improve english horses. london came to have the largest and best trained army in england. the court invited many of the greatest magnates and prelates [highest ecclesiastical officials, such as bishops] of the land to the great ecclesiastical festivals, when the king held more solemn courts and feasted with his vassals for several days. these included all the great earls, the majority of bishops, some abbots, and a number of thegns and clerics. edward had a witan of wise men to advise him, but sometimes the king would speak in the hall after dinner and listen to what comments were made from the mead-benches. as the court moved about the country, many men came to pay their respects and attend to local business. edward started the practice of king's touching people to cure them of scrofula, a disease which affected the glands, especially in the head and neck. it was done in the context of a religious ceremony. the main governmental activities were: war, collection of revenue, religious education, and administration of justice. for war, the shires had to provide a certain number of men and the ports quotas of ships with crews. the king was the patron of the english church. he gave the church peace and protection. he presided over church councils and appointed bishops. as for the administration of justice, the public courts were almost all under members of edward's court, bishops, earls, and reeves. edward's mind was often troubled and disturbed by the threat that law and justice would be overthrown, by the pervasiveness of disputes and discord, by the raging of wicked presumption, by money interfering with right and justice, and by avarice kindling all of these. he saw it as his duty to courageously oppose the wicked by taking good men as models, by enriching the churches of god, by relieving those oppressed by wicked judges, and by judging equitably between the powerful and the humble. he was so greatly revered that a comet was thought to accompany his death. the king established the office of the chancery to draft documents and keep records. it created the writ, which was a small piece of parchment [sheep skin] addressed to a royal official or dependent commanding him to perform some task for the king. by the s a.d., the writ contained a seal: a lump of wax with the impress of the great seal of england which hung from the bottom of the document. writing was done with a sharpened goose-wing quill. ink was obtained from mixing fluid from the galls made by wasps for their eggs on oak trees, rainwater or vinegar, gum arabic, and iron salts for color. a king's grant of land entailed two documents: a charter giving boundaries and conditions and a writ, usually addressed to the shire court, listing the judicial and financial privileges conveyed with the land. these were usually sac [jurisdiction of a lord to hold court and to impose fines and amercements] and soke [jurisdiction of a private court of a noble or institution to execute the laws and administer justice over inhabitants and tenants of the estate], toll [right to have a market and to collect a payment on the sale of cattle and other property on one's own estate] and team [a privilege granted by royal charter to the lord of a manor for the having, restraining, and judging of villeins with their children, goods, and chattels], and infangenetheof [the authority to hang and take the chattels of a thief caught on his estate]. the town of coventry consisted of a large monastery estate, headed by an abbot, and a large private estate headed by a lord. the monastery was granted by edward the confessor full freedom and these jurisdictions: sac and soke, toll and team, hamsocne [the authority to fine a person for breaking into and making entry by force into the dwelling of another], forestall [the authority to fine a person for robbing others on the road], bloodwite [the authority to impose a forfeiture for assault involving bloodshed], fightwite [the authority to fine for fighting], weordwite [the authority to fine for manslaughter, but not for willful murder], and mundbryce [the authority to fine for any breach of the peace, such as trespass on lands]. every man was expected to have a lord to whom he gave fealty. he swore by a fealty oath such as: "by the lord, before whom this relic is holy, i will be to faithful and true, and love all that he loves, and shun all that he shuns, according to god's law, and according to the world's principle, and never, by will nor by force, by word nor by work, do ought of what is loathful to him; on condition that he keep me as i am willing to deserve, and all that fulfill that our agreement was, when i to him submitted and chose his will." if a man was homeless or lordless, his brothers were expected to find him such, e.g. in the folkmote. otherwise, he was to be treated as a fugitive and could be slain, and anyone who had harbored him would pay a penalty. brothers were also expected to protect their minor kinsmen. when the oath of fealty was sworn, the man usually did homage to this lord symbolized by holding his hands together between those of his lord. marriages were determined by men asking women to marry them. if a woman said yes, he paid a sum to her kin for her "mund" [jurisdiction or protection over her] and gave his oath to them to maintain and support the woman and any children born. as security for this oath, he gave a valuable object or "wed". the couple were then betrothed. marriage ceremonies were performed by priests in churches. the groom had to bring friends to his wedding as sureties to guarantee his oath to maintain and support his wife and children. those who swore to take care of the children were called their "godfathers". the marriage was written into church records. after witnessing the wedding, friends ate the great loaf, or first bread made by the bride. this was the forerunner of the wedding cake. they drank special ale, the "bride ale" (from hence the work "bridal"), to the health of the couple. women could own land, houses, and furniture and other property. they could even make wills that disinherited their sons. this marriage agreement with an archbishop's sister provides her with land, money, and horsemen: "here in this document is stated the agreement which wulfric and the archbishop made when he obtained the archbishop's sister as his wife, namely he promised her the estates at orleton and ribbesford for her lifetime, and promised her that he would obtain the estate at knightwick for her for three lives from the community at winchcombe, and gave her the estate at alton to grant and bestow upon whomsoever she pleased during her lifetime or at her death, as she preferred, and promised her mancuses of gold and men and horses. the witnesses that this agreement was made as stated were archbishop wulfstan and earl leofwine and bishop aethelstan and abbot aelfweard and the monk brihtheah and many good men in addition to them, both ecclesiastics and laymen. there are two copies of this agreement, one in the possession of the archbishop at worcester and the other in the possession of bishop aethelstan at hereford." this marriage agreement provided the wife with money, land, farm animals and farm laborers; it also names sureties, the survivor of whom would receive all this property: "here is declared in this document the agreement which godwine made with brihtric when he wooed his daughter. in the first place he gave her a pound's weight of gold, to induce her to accept his suit, and he granted her the estate at street with all that belongs to it, and acres at burmarsh and in addition oxen and cows and horses and slaves. this agreement was made at kingston before king cnut, with the cognizance of archbishop lyfing and the community at christchurch, and abbot aelfmaer and the community at st. augustine's, and the sheriff aethelwine and sired the old and godwine, wulfheah's son, and aelfsige cild and eadmaer of burham and godwine, wulfstan's son, and carl, the king's cniht. and when the maiden was brought from brightling aelfgar, sired's son, and frerth, the priest of forlstone, and the priests leofwine and wulfsige from dover, and edred, eadhelm's son, and leofwine, waerhelm's son, and cenwold rust and leofwine, son of godwine of horton, and leofwine the red and godwine, eadgifu's son, and leofsunu his brother acted as security for all this. and whichever of them lives the longer shall succeed to all the property both in land and everything else which i have given them. every trustworthy man in kent and sussex, whether thegn or commoner, is cognizant of these terms. there are three of these documents; one is at christchurch, another at st. augustine's, and brihtric himself has the third." nuns and monks lived in segregated nunneries and monasteries on church land and grew their own food. the local bishop usually was also an abbot of a monastery. the priests and nuns wore long robes with loose belts and did not carry weapons. their life was ordered by the ringing of the bell to start certain activities, such as prayer; meals; meetings; work in the fields, gardens, or workshops; and copying and illuminating books. they chanted to pay homage and to communicate with god or his saints. they taught justice, piety, chastity, peace, and charity; and cared for the sick. caring for the sick entailed mostly praying to god as it was thought that only god could cure. they bathed a few times a year. they got their drinking water from upstream of where they had located their latrines over running water. the large monasteries had libraries, dormitories, guesthouses, kitchens, butteries to store wine, bakehouses, breweries, dairies, granaries, barns, fishponds, orchards, vineyards, gardens, workshops, laundries, lavatories with long stone or marble washing troughs, and towels. slavery was diminished by the church by excommunication for the sale of a child over seven. the clergy taught that manumission of slaves was good for the soul of the dead, so it became frequent in wills. the clergy were to abstain from red meat and wine and were to be celibate. but there were periods of laxity. punishment was by the cane or scourge. the archbishop of canterbury began anointing new kings at the time of coronation to emphasize that the king was ruler by the grace of god. as god's minister, the king could only do right. from , the new king swore to protect the christian church, to prevent inequities to all subjects, and to render good justice, which became a standard oath. it was believed that there was a celestial hierarchy, with heavenly hosts in specific places. the heavenly bodies revolved in circles around the earthly world on crystal spheres of their own, which were serene, harmonious, and eternal. this contrasted with the change, death, and decay that occurred in the earthly world. also in this world, aristotle's four elements of earth, air, fire, and water sought their natural places, e.g. bubbles of air rising through water. the planets were called wanderers because their motion did not fit the circular scheme. god intervened in daily life, especially if worshipped. jesus christ, his mother the virgin mary and saints were also worshipped. saints such as bede and hilda performed miracles, especially ones of curing. their spirits could be contacted through their relics, which rested at the altars of churches. sin resulted in misfortune. when someone was said to have the devil in him, people took it quite literally. omens fortold events. a real jack frost nipped noses and fingers and made the ground too hard to work. little people, elves, trolls, and fairies inhabited the fears and imaginings of people. the forest was the mysterious home of spirits. people prayed to god to help them in their troubles and from the work of the devil. prayer was often a charm to conjure up friendly spirits rather than an act of supplication. sorcerers controlled the forces of nature with the aid of spirits. since natural causes of events were unknown, people attributed events to wills like their own. illness and disease were thought to be caused by demons and witches. to cure illness, people hung charms around their neck and went to good witches for treatments of magic and herbs. for instance, the remedy for "mental vacancy and folly" was a drink of "fennel, agrimony, cockle, and marche".some herbs had hallucinogenic effects, which were probably useful for pain. blood- letting by leeches and cautery were used for most maladies, which were thought to be caused by imbalance of the four bodily humors: sanguine, phlegmatic, choleric, and melancholic. these four humors reflected the four basic elements air, water, fire, and earth. blood was hot and moist like air; phlegm was cold and moist like water; choler or yellow bile was hot and dry like fire; and melancholy or black bile was cold and dry like earth. bede had explained that when blood predominates, it makes people joyful, glad, sociable, laughing, and talking a great deal. phlegm renders them slow, sleepy, and forgetful. red cholic makes them thin, though eating much, swift, bold, wrathful, and agile. black cholic makes them serious of settled disposition, even sad. to relieve brain pressure and/or maybe to exorcise evil spirits, holes were made in skulls by a drill with a metal tip that was caused to turn back and forth by a strap wrapped around a wooden handle. a king's daughter edith inspired a cult of holy wells, whose waters were thought to alleviate eye conditions. warmth and rest were also used for illness. agrimony boiled in milk was thought to relieve impotence in men. it was known that the liver casted out impurities in the blood. the stages of fetal growth were known. the soul was not thought to enter a fetus until after the third month, so presumably abortions within three months were allowable. the days of the week were sun day, moon day, tiw's day (viking god of war), woden's day (viking god of victory, master magician, calmer of storms, and raiser of the dead), thor's day (viking god of thunder), frig's day (viking goddess of fertility and growing things), and saturn's day (roman god). special days of the year were celebrated: christmas, the birthday of jesus christ; the twelve days of yuletide (a viking tradition) when candles were lit and houses decorated with evergreen and there were festivities around the burning of the biggest log available; plough monday for resumption of work after yuletide; february th with a feast celebrating saint valentinus, a roman bishop martyr who had married young lovers in secret when marriage was forbidden to encourage men to fight in war; new year's day on march th when seed was sown and people banged on drums and blew horns to banish spirits who destroy crops with disease; easter, the day of the resurrection of jesus christ; whitsunday, celebrating the descent of the holy spirit on the apostles of jesus and named for the white worn by baptismal candidates; may day when flowers and greenery was gathered from the woods to decorate houses and churches, morris dancers leapt through their villages with bells, hobby horses, and waving scarves, and people danced around a may pole holding colorful ribbons tied at the top so they became entwined around the pole; lammas on august st, when the first bread baked from the wheat harvest was consecrated; harvest home when the last harvest load was brought home while an effigy of a goddess was carried with reapers singing and piping behind, and october st, the eve of the christian designated all hallow day, which then became known as all hallow even, or halloween. people dressed as demons, hobgoblins, and witches to keep spirits away from possessing them. trick or treating began with christian beggars asking for "soul cake" biscuits in return for praying for dead relatives. ticktacktoe and backgammon were played. the languages of invaders had produced a hybrid language that was roughly understood throughout the country. the existence of europe, africa, asia, and india were known. jerusalem was thought to be at the center of the world. there was an annual tax of a penny on every hearth, peter's pence, to be collected and sent to the pope in rome yearly. ecclesiastical benefices were to pay church-scot, a payment in lieu of first fruits of the land, to the pope. the law there were several kings in this period. the king and witan deliberated on the making of new laws, both secular and spiritual, at the regularly held witanagemot. there was a standard legal requirement of holding every man accountable, though expressed in different ways, such as the following three: every freeman who does not hold land must find a lord to answer for him. every lord shall be personally responsible as surety for the men of his household. [this included female lords.] (king athelstan) "and every man shall see that he has a surety, and this surety shall bring and keep him to [the performance of] every lawful duty. . -and if anyone does wrong and escapes, his surety shall incur what the other should have incurred. . -if the case be that of a thief and his surety can lay hold of him within twelve months, he shall deliver him up to justice, and what he has paid shall be returned to him." (king edgar) every freeman who holds land, except lords with considerable landed property, must be in a local tithing, usually ten to twelve men, in which they serve as personal sureties for each other's peaceful behavior. if one of the ten landholders in a tithing is accused of an offense, the others have to produce him in court or pay a fine plus pay the injured party for the offense, unless they could prove that they had no complicity in it. if the man is found guilty but can not pay, his tithing must pay his fine. the chief officer is the "tithing man" or "capital pledge". there were probably ten tithings in a hundred. (king edward the confessor). canute reigned from to . the following are substantially all the laws of canute with an * before ones of special interest. proclamations of canute are: all my reeves, under pain of forfeiting my friendship and all that they possess and their own lives, shall govern my people justly everywhere, and to pronounce just judgments with the cognizance of the bishops of the dioceses, and to inflict such mitigated penalties as the bishop may approve and the man himself may be able to bear. i enjoin upon all the sheriffs and reeves throughout my kingdom that, as they desire to retain my friendship and their own sercurity, they employ no unjust force towards any man, either rich or poor, but that all, both nobles and commoners, rich and poor, shall have their right of just possession, which shall not be infringed upon in any way, either for the sake of obtaining the favour of the king or of gratifying any powerful person or of collecting money for me; and i have no need that monoey should be collected for me by any unust exactions. ecclesiastical laws of canute are: above all else, love and honour one god, and uphold one christian faith, and love king canute with due fidlity. *maintain the security and sanctity of the churches of god, and frequently attend them for the salvation of our souls and our own benefit. he who violates the protection given by the church of god within its walls, or the protection granted by a christian king in person shall lose both land and life, unless the king is willing to pardon him. homicide within the church's walls shall not be atoned for by any payment of compensation, and everyone shall pursue the miscreant, unless it happen that he escapes from there and reaches so inviolable a sanctuary that the king, because of that, grants him his life, upon condition that he makes full amends both towards god and towards men. the first conditon is that he shall give his own wergeld to christ and to the king and by that means obtain the legal right to offer compensation. and if the king allows compensation, amends for the violation of the protection of the church shall be made by the payment to the church of the full fine for breach of the king's mund, and the purification of the church shall be carried out as is fiting, and compensation both to the kin and to the lord of the slain man shall be fully psid, and supplication shall earnestly be made to god. if the protection of the church is broken by offenses such as fighting or robbery, without the taking of life, amends shall diligently be made in accordance with the nature of the offense. the penalty for violation of the protection of a principal church is pounds, for a church of medium rank is s., for a church with a graveyard s., and for a country chapel where there is no graveyard, s. maintain the security and sanctity of holy things and priests according to their rank, for they drive away devils, baptize anyone, hallow the eucharist, and intercede to christ for the needs of the people. if an accusation of evil practices is made against a priest and he knows himself to be guiltless, he shall say mass, if he dares, and thus clear himelf by the holy communion in the cases of a simple accusation, and by the holy communion with two supporters of the same ecclesiastical rank in the case of a triple accusation. if he has no supporters, he shall go to the ordeal of consecrated bread. no monk who belongs to a monastery may demand or pay compensation incurred by vendetta because he leaves the law of his kindred behind when he accepts monastic rule. if a priest is concerned in false witness or perjury or is the accessory and accomplice of thieves, he shall be cast out from the fellowship of those in holy orders and forfeit every privilege, unless he make amends both towards god and towards men, as the bishop shall prescribe, and find surtey for future behavior. servants of god shall call upon christ to intercede for all christian people and practice celibacy. those who turn away from marriage and observe celibacy shall enjoy the privileges of a thegn. *no christian man shall marry among his own kin within six degress of relationship or with the widow of a man as nearly related to him as that, or with a near relative of his first wife's. no man shall marry his god-mother, a nun, or a divorced woman. he shall not commit adultery. he shall have no more wives that one, with whom he shall remain as long as she lives. ecclesiastical dues shall be paid yearly, namely, plough alms days after easter, the tithe [tenth] of young animals at pentecost, and the tithe of the fruits of the earth at all saints. otherwise the king's reeve, the bishop's reeve, and the lord's reeve shall take what is due and assign him the next tenth, and the eight remaining parts shall go half to the lord and half to the bishop. peter's pence shall be paid by st. peter's day or pay the bishop the penny and d. in addition and s. to the king. church dues shall be paid at martinmas, or pay the biship eleven fold and s. to the king. any thegn with a church with attached graveyard on his land shall give a third part of his own tithes to his church. if he has a church without a graveyard, he shall give his priest whatever he desires from the nine remaining parts. light dues shall be paid a halfpenny worth of wax from every hide three times a year. payment for the souls of the dead should be rendered before the grave is closed. *all festivals and fasts, such as lent, shall be observed. the festival of every sunday shall be observed from noon on saturday till dawn on monday. no trading, public gatherings, hunting, or secular occupations shall be done on sunday. we forbid ordeals and oaths during festivals and fasts. to avoid the torment of hell, let us turn away from sin and confess our misdeeds to out confessors and cease from evil and make amends. each of us shall treat others as we desire to be treated. every christian man shall prepare himself for the sacrament at least three times a year. every friend shall abide by his oath and pledge. every injustice shall be cast out from this land. let us be faithful and true to our lord and promote his honour and carry out his will. and likewise, it is the duty of every lord to treat his men justly. men of every estate shall readily submit to the duty which befits them. every christian man shall learn the creed and the pater noster, the sacred prayer taught by christ to his disciples which contains all the petitions necessary for this life and the life to come. he who does not learn it may not sponsor another man at baptism or at confirmation. *guard against grievous sins and devilish deeds and make amends according to one's confessor's advice. fear god, be in terror of sin, and dread the day of judgment. the bishops shall give example of our duty towards god. secular laws of canute are: all men, both rich and poor, shall be entitled to the benefit of the law, and just decisions shall be pronounced on their behalf. those in authority to give judgment shall consider very earnestly "and forgive us our trespasses as we forgive them that trespass against us." christian people shall not be condemned to death for trivial offenses. we forbid the all too prevalent practice of selling christian people out of the country, especially into heathen lands. care shall be taken that the souls which christ bought with his own life be not destroyed. *any wizards or sorcerers, those who secretly compass death, prostitutes, thieves, and robbers shall be destroyed unless they cease and make amends. we forbid heathen practices, namely the worship of idols, heathen gods, and the sun or moon, fire or water, springs or stones or any kind of forest trees, or indulgence in witchcraft or the compassing of death in any way, either by sacrifice or by divinations or by the practice of any such delusions. *murderers and perjurers, injurers of the clergy, and adulterers shall submit and make amends or depart with their sins from their native land. *hypocrites and liars, robbers and plunderers shall incur the wrath of god, unless they desist and make amends. *there shall be one currency free from all adulteration throughout the land and no one shall refuse it. he who coins false money shall forfeit the hand with which he made it, and he shall not redeem it in any way, either with gold or silver. if the reeve is accused of having granted his permission to the man who coined the false money, he shall clear himself by the triple oath of exculpation and, if it fails, he shall have the same sentence as the man who coined the false money. *measures and weights shall be diligently corrected and an end put to all unjust practices. the repair of fortifications and bridges, and the preparation of ships and the equipment of military forces shall be diligently undertaken for the common need, whenever the occasion arises. *in wessex and mercia, the king is entitled to payments for violation of his mund, attacks on people's houses, assault, and neglecting military service. in the danelaw, he is entitled to payments for fighting, breach of the peace and attacks on people's houses, and neglect of military service. *if anyone does the deed of an outlaw, the king alone shall have power to grant him security. he shall forfeit all his land to the king without regard to whose vassal he is. whoever feeds or harbours the fugitive shall pay pounds to the king, unless he clears himself by a declaration that he did not know that he was a fugitive. *he who promotes injustice or pronounces unjust judgments, as a result of malice or bribery, shall forfeit s. to the king, in districts under english law, unless he declares on oath that he did not know how to give a more just verdict, and he shall lose forever his rank as a thegn, unless he redeem it from the king, provided the latter is willing to allow him to do so. in the danelaw he shall forfeit his lahslit. *he who refuses to observe just laws and judgments shall forfeit, in districts under english law, a fine to the party entitled thereto - either s. to the king, s. to the earl, or s. to the hundred, or to all of them if they were all concerned. *if a man seeks to accuse another man falsely in such a way as to injure him in property or in reputation, and if the latter can refute the accusation brought against him, the first shall forfeit his tongue, unless he redeems himself with his wergeld. no one shall appeal to the king, unless he fails to obtain justice within his hundred. everyone shall attend the hundred court, under pain of fine, whenever he is required by law to attend it. the borough court shall be held at least three times and the shire court at least twice, under pain of fine. the bishop of the diocese and the earldorman shall attend and they shall direct the administration of both ecclesiastical and secular law. *no one shall make distraint [seizure of personal property out of the possession of an alleged wrongdoer into the custody of the party injured, to procure a satisfaction for a wrong committed] of property either within the shire or outside it, until he has appealed for justice three times in the hundred court. if on the third occasion he does not obtain justice, he shall go on the fourth occasion to the shire court, and the shire court shall appoint a day when he shall issue his summons for the fourth time. and if this summons fails, he shall get leave from the one court or the other, to take his own measures for the recovery of his property. *every freeman over age must be in a tithing if he desires to have the right of exculpation and of being atoned for by the payment of his wergeld, if he is slain, and to be entitled to the rights of a freeman, whether he has an establishment of his own or is in the service of another. everyone shall be brought within a hundred and under surety, and his surety shall hold and bring him to the performance of every legal duty. *everyone over age shall take an oath that he will not be a thief or a thief's accomplice. every trustworthy man, who has never earned a bad reputation and who has never failed either in oath or in ordeal, shall be entitled to clear himself within the hundred by the simple oath of exculpation. for an untrustworthy man compurgators for the simple oath shall be selected within three hundreds, and for the triple oath, throughout the district under the jurisdiction of the borough court; otherwise he shall go to the ordeal. when a simple oath of exculpation is involved, the case shall be begun with a simple oath of accusation; but where a triple oath of exculpation is involved, it shall be begun with a triple oath of accusation. a thegn may have a trustworthy man give his oath of accusation for him. no man may vouch to warranty unless he has three trustworthy witnesses to declare whence he acquired the stock which is attached in his possession. the witnesses shall declare that, in bearing testimony on his behalf to the effect that he acquired it legally, they are speaking the truth, in accordance with what they saw with their eyes and heard with their ears. *no one shall buy anything over d. in value, either livestock or other property, unless he has four men as trustworthy witnesses, whether the purchase be made within a town or in the open country. if, however, any property is attached, and he who is in possession of it has no such witnesses, no vouching to warranty shall be allowed, but the property shall be given up to its rightful owner and also the supplementary payment, and the fine to the party who is entitled thereto. and if he has witnesses in accordance with what we have declared above, vouching to warranty shall take place three times. on the fourth occasion he shall prove his claim to it or give it back to its rightful owner. no one shall claim ownership where fraud is involved. *if anyone who is of bad reputation and unworthy of public confidence fails to attend the court meetings three times, men shall be chosen from the fourth meeting who shall ride to him, and he may then still find a surety, if he can. if he cannot, they shall seize him either alive or dead, and they shall take all that he has. and they shall pay to the accuser the value of his goods, and the lord shall take half of what remains and the hundred half. and if anyone, either kinsman or stranger, refuses to ride against him, he shall pay the king s. *the proved thief and he who has been discovered in treason against his lord, whatever sanctuary he seeks, shall never be able to save his life. he who in court tries to protect himself or one of his men by bringing a countercharge shall have wasted his words, and shall meet the charge brought by his opponent in such a way as the hundred court shall determine. no one shall entertain any man for more than three days, unless he is committed to this charge by the man whom he has been serving. and no one shall dismiss one of his men from his service until he is quit of every accusation which has been brought against him. *if anyone comes upon a thief and of his own accord lets him escape without raising the hue and cry, he shall make compensation by the payment of the thief's wergeld, or clear himself with the full oath, asserting that he did not know him to be guilty of any crime. and if anyone hears the hue and cry and neglects it, he shall pay the full fine for insubordination [ s] to the king, or clear himself by the full oath. *regarding thoroughly untrustworthy men, if anyone has forfeited the confidence of the hundred, and he has charges brought against him to such an extent that he is accused by three men at once, no other course shall be open to him but to go to the triple ordeal. if, however, his lord asserts that he has failed neither in oath nor in ordeal since the assembly was held at winchester, the lord shall choose two trustworthy men within the hundred - unless he has a reeve who is qualified to discharge this duty - and they shall swear that he has never failed in oath or ordeal or been convicted of stealing. if the oath is forthcoming, the man who is accused there shall choose whichever he will - either the simple ordeal or an oath equivalent to a pound in value, supported by compurgators found within the three hundreds, in the case of an object over d. in value. if they dare not give the oath, the accused shall go to the triple ordeal, which shall be opened by five compurgators selected by the accuser and he himself shall make a sixth. if the accused is proved guilty, on the first occasion he shall pay double value to the accuser and his wergeld to the lord who is entitled to receive his fine, and he shall appoint trustworthy sureties, that hence forth he will desist from all wrong-doing. and on the second occasion, if he is proved guilty, there shall be no compensation but to have his hands or his feet cut off or both, according to the nature of the offense. and if has wrought still greater crime, he shall have his eyes put out and his nose and ears and upper lip cut off or his scalp removed, whichever of these penalties is determined by those with whom rests the decision of the case; and thus punishment shall be inflicted, while, at the same time, the soul is preserved from injury. if, however, he escapes and avoids the ordeal, his surety shall pay the value of his goods to the plaintiff and the wergeld of the accused to the king or to the man who is entitled to receive his wergeld. and if the lord is accused of advising the man who had done wrong to escape, he shall choose five trustworthy men, and shall himself make a sixth, and shall clear himself of the accusation. if he succeeds in clearing himself, he shall be entitled to the wergeld. and if he fails, the king shall take the wergeld, and the thief shall be treated as an outlaw by the whole nation. every lord shall be personally responsible as surety for the men of his own household. and if any accusation is brought against one of them, he shall answer if within the hundred in which he is accused. and if he is accused and escapes, the lord shall pay the man's wergeld to the king. and if the lord is accused of advising him to escape, he shall clear himself with the help of five thegns, himself making a sixth. and if he fails to clear himself, he shall pay his own wergeld to the king, and the man shall be an outlaw towards the king. if a slave is found guilty at the ordeal, he shall be branded on the first occasion. and on the second occasion, he shall not be able to make any amends except by his head. *concerning untrustworthy men, if there is anyone who is regarded with suspicion by the general public, the king's reeve shall go and place him under surety so that he a may be brought to do justice to those who have made charges against him. if he has no surety, he shall be slain and buried in unconsecrated ground. and if anyone interposes in his defense, they shall both incur the same punishment. and he who ignores this and will not further what we have all determined upon shall pay s. to the king. the various boroughs shall have one common law with regard to exculpation. if a friendless man or one come from afar is so utterly destitute of friends as not to be able to produce a surety, on the first occasion that he is accused he shall go to prison, and wait there until he goes to god's ordeal where he shall experience whatever he can. verily, he who pronounces a more severe judgment upon whom is friendless or come from afar than upon one of his own acquaintances injures himself. *concerning perjury, if anyone swears a false oath on the relics and is convicted, he shall lose his hand or half his wergeld which shall be divided between the lord and the bishop. and henceforth he shall not be entitled to swear an oath, unless he makes amends to the best of his ability before god, and finds surety that ever afterwards he will desist from such perjury. *concerning false witness, if anyone has given testimony which is manifestly false, and is convicted thereof, his testimony henceforth shall be valueless, and he shall pay to the king or to the lord of the manor a sum equivalent to his healsfang [payment due only to those very closely related to a killed man]. special care must be taken to prevent lawlessness at sacred seasons and in sacred places. the greater a man is and the higher his rank, the more stringent shall be the amends which he shall be required to make to god and to men for lawless behavior. and ecclesiastical amends shall be diligently exacted in accordance with the directions contained in the canon law, and secular amends in accordance with secular law. if anyone slays a priest of the altar, he shall be both excommunicated and outlawed, unless he make amends to the best of his ability by pilgrimage, and likewise by the payment of compensation to the kin of the slain man, or else he shall clear himself by an oath equal in value to his wergeld. he shall begin to make amends to god and men within days, under pain of forfeiting all that he possesses. if an attempt is made to deprive a man in orders or a stranger of his goods or his life, the king shall act as his kinsman and protector unless he has some other. and such compensation as is fitting shall be paid to the king, or he shall avenge the deed to the uttermost. if a minister of the altar commits homicide or any other great crime, he shall be deprived of his ecclesiastical office and banished, and shall travel as a pilgrim as far as the pope appoints for him and zealously make amends. if he seeks to clear himself, he shall do so by the triple mode of proof. if he does not begin to make amends both to god and men within days, he shall be outlawed. if anyone binds or beats or deeply insults a man in holy orders, he shall make amends towards him and shall pay the fine due to the bishop for sacrilege, in accordance with the rank of the injured man, and to his lord or to the king the full fine for breach of his mund, or he shall clear himself by the full process of exculpation. if a man in holy orders commits a capital crime, he shall be arrested, and his cases shall be reserved for the bishop's decision. if a condemned man desires confession, he shall never be refused him or pay the king s. or he shall clear himself by selecting five men and be himself the sixth. *no condemned man shall be put to death during the sunday festival, unless he flees or fights, but he shall be arrested and kept in custody until the festival is over. if a freeman works during a church festival, he shall make amends by payment of his healsfang and make amends to god according to the directions given him. if as slave works, he shall undergo the lash or pay the fine, according to the nature of the offense. if a lord compels his slave to work during a church festival, he shall lose the slave, who shall then obtain the rights of a freeman and the lord shall pay a fine or clear himself. if a freeman breaks an ordained fast, he shall pay a fine. if a slave does so, he shall undergo the lash or pay the fine in accordance with the nature of the deed. if anyone openly causes a breach of the fast of lent by fighting or by intercourse with women or by robbery or by any great misdeed, he shall pay double compensation just as he must do during a high festival. if he denies the charge, he shall clear himself by the triple process of exculpation. *if anyone refuses by force the payment of ecclesiastical dues, he shall pay the full fine or he shall clear himself: he shall select men and himself make a twelfth. if he wounds anyone, he shall make amends and pay the full fine to the lord and redeem his hands from the bishop or lose them. if he kills a man, he shall be outlawed and pursued with hostility. if he so acts as to bring about his own death by setting himself against the law, no compensation shall be paid for him. if anyone injures one of the clergy, he shall make amends according to the rank of the person injured, either by the payment of his wergeld or a fine or by the forfeiture of all his property. *if anyone commits adultery, he shall make amends according to the nature of the offense. it is wicked adultery for a pious man to commit fornication with an unmarried woman, and much worse with the wife of another man or with any woman who has taken religious vows. *if anyone commits incest, he shall make amends according to the degree of relationship between them, either by the payment of wergeld or of a fine, or by the forfeiture of all his possessions. *if anyone does violence to a widow or maiden, he shall pay his wergeld. *if a woman commits adultery, her husband shall have all she possesses and she shall lose her nose and her ears. if a married man commits adultery with his own slave, he shall lose her and make amends to god and to men. *if anyone has a lawful wife and also a concubine, no priest shall perform for him any of the offices which must be performed for a christian man, until he desists and makes amends as the bishop shall direct. foreigners, if they will not regularize their unions, shall be driven from the land with their possessions, and shall depart in sin. *any murderer shall be given up to the kinsmen of the slain man. the bishop shall pronounce judgment. *if anyone plots against the king or his own lord, he shall forfeit his life and all that he possesses, unless he proves himself innocent by the triple ordeal. *if anyone violates the protection or a king, archbishop or bishop, he shall pay , , or pounds respectively as compensation. *anyone who fights at the king's court shall lose his life, unless pardoned by the king. *if a man unjustly disarms another, he shall compensate him by the payment of his healsfang. if he binds him, he shall compensate by the payment of half his wergeld. if anyone is guilty of a capital deed of violence while serving in the army, he shall lose his life or his wergeld. *if a man makes forcible entry into another man's house, he shall pay pounds to the king. if he is slain in such a case, no compensation shall be paid for his death. *anyone guilty of robbery shall restore the stolen goods and pay the injured man as much again and forfeit his wergeld to the king. *according to secular law, assaults upon houses, arson, theft which cannot be disproved, murder which cannot be denied, and treachery towards a man's lord are crimes for which no compensation can be paid. if anyone neglects the repair of fortifications or bridges or military service, he shall pay s. to the king or he shall clear himself with the support of compurgators out of nominated by the court. the whole nation shall assist in the repair of churches. if anyone unlawfully maintains an excommunicated person, he shall deliver him up in accordance with the law, and pay compensation to him to whom it belongs, and to the king his wergeld. anyone keeping and maintaining as excommunicated man or an outlaw shall risk losing his life and all his property. greater leniency shall be shown in passing judgment and in imposing penance on the weak than on the strong because they cannot bear an equally heavy burden. so we distinguish between age and youth, wealth and poverty, freemen and slaves, the sound and the weak. *when a man is an involuntary agent in evil-doing or does something unintentionally, he is more entitled to clemency. all my reeves shall provide for me from my own property and no man need give them anything as purveyance. if any of my reeves demands a fine, he shall forfeit his wergeld to me. the public has been so far too greatly oppressed by this. *if a man dies intestate [without a will], whether through negligence or sudden death, his lord shall take no more than his legal heriot. the property shall be divided among his wife and children and near kinsmen according to the share which belongs to him. heriots shall be fixed with regard to the rank of the person for whom they are paid. the heriot of any earl is eight horses, four saddled and four unsaddled, four helmets, four coats of chainmail, eight spears, eight shields, four swords, and mancuses of gold. the heriot of a king's thegn is four horses, two saddled and two unsaddled, two swords, four spears, four shields, four helmets, four coats of chain mail and mancuses of gold, but among the danes who possess rights of jurisdiction pounds. the heriot of an ordinary thegn is a horse and its trappings and his weapons or his healsfang in wessex, and in mercia pounds, and in east anglia pounds. the heriot of a man who stands in a more intimate relationship to the king shall be two horses, one saddled and one unsaddled, one sword, two spears, two shields, and mancuses of gold. the heriot of a man who is inferior in wealth is pounds. when a householder has dwelt all his time free from claims and charges, his wife and children shall dwell there unmolested by litigation. *every widow who remains a year without a husband shall do what she herself desires. if within the space of a year, she chooses a husband, she shall lose her morning gift and all the property she had from her first husband, and his nearest relatives shall take the land and property which she had held. and the second husband shall forfeit his wergeld to the king or the lord to whom it has been granted. and although she has been married by force, she shall lose her possessions, unless she leaves the man and returns home. and no widow shall be too hastily consecrated as a nun. and every widow shall pay heriots within a year without incurring a fine, if it has not been convenient for her to pay earlier. *no woman or maiden shall be forced to marry a man whom she dislikes, nor shall she be given for money, except the suitor desires of his own freewill to give something. if anyone sets his spear at the door to another man's house, he himself having an errand inside, or if anyone carefully lays any other weapons where they might remain quietly, and another seizes the weapon and works mischief with it, he shall pay compensation for it. he who owns the weapon may clear himself by asserting that the mischief was done without his desire or authority or advice or cognizance. *if anyone carries stolen goods home to his cottage and is detected, the owner shall have what he has tracked. the wife shall be clear of any charge of complicity unless the goods had been put under her lock and key or in her storeroom, her chest, or her cupboard. but no wife can forbid her husband from depositing anything in his cottage. until now it has been the custom for grasping persons to treat a child which lay in the cradle, even though it had never tasted food, as being guilty as though it were fully intelligent. i forbid this practice. the man who, through cowardice, deserts his lord or his comrades in an expedition, either by sea or by land, shall lose all he possesses and his own life, and the lord shall take back the property and the land which he had given him. and if he has land held by title-deed it shall pass into the king's hands. the heriots of the man who falls before his lord during a campaign, whether within the country or abroad, shall be remitted, and the heirs shall succeed to his land and property and make a very just division of the same. he who, with the cognisance of the shire, has performed the services demanded from a landowner on expedition, either by sea or by land, shall hold his land unmolested by litigation during his life, and at his death shall have the right of disposing of it or giving it to whomsoever he pleases. *every man is entitled to hunt in the woods and fields on his own property. but everyone, under pain of incurring the full penalty, shall avoid hunting on my preserves. there shall never be any interference with bargains successfully concluded or with the legal gifts made by a lord. every man shall be entitled to protection in going to and from assemblies, unless he is a notorious thief. *he who violates the law shall forfeit his wergeld to the king. and he who violates it again, shall pay his wergeld twice over. and if he is so presumptuous as to break it a third time, shall lose all he possesses. love god and follow his law and obey our spiritual leaders, for it is their duty to lead us to the judgment of god according to our works wrought. do what is right and good and guard against the hot fire of hell. god almighty have mercy upon us all, as his will may be. amen. the laws for london were: " . the gates called aldersgate and cripplegate were in charge of guards. . if a small ship came to billingsgate, one halfpenny was paid as toll; if a larger ship with sails, one penny was paid. ) if a hulk or merchantman arrives and lies there, four pence is paid as toll. ) from a ship with a cargo of planks, one plank is given as -toll. ) on three days of the week toll for cloth [is paid] on sunday and tuesday and thursday. ) a merchant who came to the bridge with a boat containing fish paid one halfpenny as toll, and for a larger ship one penny." ) - ) foreigners with wine or blubber fish or other goods and their tolls. (foreigners were allowed to buy wool, melted sheep fat [tallow], and three live pigs for their ships.) " . if the town reeve or the village reeve or any other official accuses anyone of having withheld toll, and the man replies that he has kept back no toll which it was his legal duty to pay, he shall swear to this with six others and shall be quit of the charge. ) if he declares that he has paid toll, he shall produce the -man to whom he paid it, and shall be quit of the charge. ) if, however, he cannot produce the man to whom he paid it, he shall pay the actual toll and as much again and five pounds to the king. ) if he vouches the taxgatherer to warranty [asserting] that he paid toll to him, and the latter denies it, he shall clear himself by the ordeal and by no other means of proof. . and we [the king and his counselors] have decreed that a man who, within the town, makes forcible entry into another man's -house without permission and commits a breach of the peace of the worst kind and he who assaults an innocent person on the king's highway, if he is slain, shall lie in an unhonored grave. ) if, before demanding justice, he has recourse to violence, but does not lose his life thereby, he shall pay five pounds for breach of the king's peace. ) if he values the goodwill of the town itself, he shall pay us thirty shillings as compensation, if the king will grant us -this concession." . no base coin or coin defective in quality or weight, foreign or english, may be used by a foreigner or an englishman. (in , a person found guilty of illicit coining was punished by loss of a hand.) judicial procedure there were courts for different geographical communities: shires, hundreds, and vills. the arrangement of the whole kingdom into shires was completed by after being united under king edgar. a shire was a large area of land, headed by an earl. a shire reeve or "sheriff" represented the royal interests in the shires and in the shire courts. this officer came to be selected by the king and earl of the shire to be a judicial and financial deputy of the earl and to execute the law. the office of sheriff, which was not hereditary, was also responsible for the administration of royal lands and royal accounts. the sheriff summoned the freemen holding land in the shire, four men selected by each community or township, and all public officers to meet twice a year at their "shiremotes". actually only the great lords - the bishops, earls, and thegns - attended. the shire court was primarily concerned with issues of the larger landholders. here the freemen interpreted the customary law of the locality. the earl declared the secular law and the bishop declared the spiritual law. they also declared the sentence of the judges. the earl usually took a third of the profits, such as fines and forfeits, of the shire court, and the bishop took a share. in time, the earls each came to supervise several shires and the sheriff became head of the shire and assumed the earl's duties there, such as heading the shire fyrd. the shire court also heard cases which had been refused justice at the hundredmote and cases of keeping the peace of the shire. the hundred was a division of the shire, having come to refer to a geographical area rather than a number of households. the monthly hundredmote could be attended by any freeman holding land (or a lord's steward), but was usually attended only by reeve, thegns, parish priest, and four representatives selected by each agrarian community or village - usually villeins. here transfers of land were witnessed. the sheriff, or a reeve in his place, presided over minor local criminal and peace and order issues. when the jurisdiction was in the hands of a sheriff, it was called the sheriff's tourn. all residents were expected to attend this court. when the jurisdiction was in private hands, it was called a leet court. leet jurisdiction derived from sac and soke jurisdiction. sac and soc jurisdiction was possession of legal powers of execution and profits of justice held by a noble or institution over inhabitants and tenants of the estate, exercised through a private court. the sheriff usually held each hundred court, which heard civil cases. the suitors to these courts were the same as those of the shire courts. they were the judges who declared the law and ordered the form of proof, such as compurgatory oath and ordeal. they were customarily thegns, often twelve in number. they, as well as the king and the earl, received part of the profits of justice. summary procedure was followed when a criminal was caught in the act or seized after a hue and cry. every freeman over age twelve had to be in a hundred and had to follow the hue and cry. in , king ethelred in a law code ordered the sheriff and twelve leading magnates of each shire to swear to accuse no innocent man, nor conceal any guilty one. this was the germ of the later assize, and later still the jury. the integrity of the judicial system was protected by certain penalties: for swearing a false oath, bot as determined by a cleric who has heard his confession, or, if he has not confessed, denial of burial in consecrated ground. also a perjurer lost his oath-worthiness. swearing a false oath or perjury was also punishable by loss of one's hand or half one's wergeld. a lord denying justice, as by upholding an evildoing thegn of his, had to pay s. to the king for his disobedience. furthermore, if a lord protected a theow of his who had stolen, he had to forfeit the theow and pay his wer, for the first offense, and he was liable for all he property, for subsequent offenses. there was a bot for anyone harboring a convicted offender. if anyone failed to attend the gemot thrice after being summoned, he was to pay the king a fine for his disobedience. if he did not pay this fine or do right, the chief men of the burh were to ride to him, and take all his property to put into surety. if he did not know of a person who would be his surety, he was to be imprisoned. failing that, he was to be killed. but if he escaped, anyone who harbored him, knowing him to be a fugitive, would be liable pay his wer. anyone who avenged a thief without wounding anyone, had to pay the king s. as wite for the assault. "and if anyone is so rich or belongs to so powerful a kindred, that he cannot be restrained from crime or from protecting and harboring criminals, he shall be led out of his native district with his wife and children, and all his goods, to any part of the kingdom which the king chooses, be he noble or commoner, whoever he may be - with the provision that he shall never return to his native district. and henceforth, let him never be encountered by anyone in that district; otherwise he shall be treated as a thief caught in the act." courts controlled by lords of large private estates had various kinds of jurisdiction recognized by the king: sac and soke [possession of legal powers of execution and profits of justice held by a noble or institution over inhabitants and tenants of the estate, exercised through a private court], toll [right to collect a payment on the sale of cattle and property] and team [right to hold a court to determine the honesty of a man accused of illegal possession of cattle], infangenetheof [the authority to judge and to hang and take the chattels of a thief caught on the property], and utfangenetheof [the authority to judge, punish, and take the chattels of a thief dwelling out of his liberty, and committing theft without the same, if he were caught within the lord's property]. some lords were even given jurisdiction over breach of the royal peace, ambush and treacherous manslaughter, harboring of outlaws, forced entry into a residence, and failure to answer a military summons. often this court's jurisdiction overlapped that of the hundred court and sometimes a whole hundred had passed under the jurisdiction of an abbot, bishop, or earl. a lord and his noble lady, or his steward, presided at this court. the law was administered here on the same principles as at the hundred court. judges of the leet [minor criminal jurisdiction] of the court of a large private estate were chosen from the constables and four representatives selected from each community, village, or town. the vill [similar to village] was the smallest community for judicial purposes. there were several vills in a hundred. before a dispute went to the hundred court, it might be taken care of by the head tithing man, e.g. cases between vills, between neighbors, and some compensations and settlements, namely concerning pastures, meadows, harvests, and contests between neighbors. in london, the hustings court met weekly and decided such issues as wills and bequests and commerce matters. the folkmote of all citizens met three times a year. each ward had a leet court. the king and his witan decided the complaints and issues of the nobility and those cases which had not received justice in the hundred or shire court. the witan had a criminal jurisdiction and could imprison or outlaw a person. the witan could even compel the king to return any land he might have unjustly taken. especially punishable by the king was "oferhyrnesse": contempt of the king's law. it covered refusal of justice, neglect of summons to gemot or pursuit of thieves, disobedience to the king's officers, sounding the king's coin, accepting another man's dependent without his leave, buying outside markets, and refusing to pay peter's pence. the forests were peculiarly subject to the absolute will of the king. they were outside the common law. their unique customs and laws protected the peace of the animals rather than the king's subjects. only special officials on special commissions heard their cases. the form of oaths for compurgation were specified for theft of cattle, unsoundness of property bought, and money owed for a sale. the defendant denied the accusation by sweating that "by the lord, i am guiltless, both in deed and counsel, and of the charge of which ... accuses me." a compurgator swore that "by the lord, the oath is clean and unperjured which ... has sworn.". a witness swore that "in the name of almighty god, as i here for ... in true witness stand, unbidden and unbought, so i with my eyes oversaw, and with my ears overheard, that which i with him say." if a theow man was guilty at the ordeal, he was not only to give compensation, but was to be scourged thrice, or a second geld [compensation] be given; and be the wite of half value for theows. this lawsuit between a son and his mother over land was heard at a shire meeting: "here it is declared in this document that a shire meeting sat at aylton in king cnut's time. there were present bishop aethelstan and earl ranig and edwin, the earl's son, and leofwine, wulfsige's son, and thurkil the white; and tofi the proud came there on the king's business, and bryning the sheriff was present, and aethelweard of frome and leofwine of frome and godric of stoke and all the thegns of herefordshire. then edwin, enneawnes son, came traveling to the meeting and sued his own mother for a certain piece of land, namely wellington and cradley. then the bishop asked whose business it was to answer for his mother, and thurkil the white replied that it was his business to do so, if he knew the claim. as he did not know the claim, three thegns were chosen from the meeting [to ride] to the place where she was, namely at fawley, and these were leofwine of frome and aethelsige the red and winsige the seaman, and when they came to her they asked her what claim she had to the lands for which her son was suing her. then she said that she had no land that in any way belonged to him, and was strongly incensed against her son, and summoned to her kinswoman, leofflaed, thurkil's wife, and in front of them said to her as follows: 'here sits leofflaed, my kinswoman, to whom, after my death, i grant my land and my gold, my clothing and my raiment and all that i possess.' and then she said to the thegns: 'act like thegns, and duly announce my message to the meeting before all the worthy men, and tell them to whom i have granted my land and all my property, and not a thing to my own son, and ask them to be witnesses of this.' and they did so; they rode to the meeting and informed all the worthy men of the charge that she had laid upon them. then thurkil the white stood up in the meeting and asked all the thegns to give his wife the lands unreservedly which her kinswoman had granted her, and they did so. then thurkil rode to st. aethelbert's minister, with the consent and cognizance of the whole assembly, and had it recorded in a gospel book." chapter the times: - william came from normandy, france, to conquer england. he claimed that the former king, edward, the confessor, had promised the throne to him when they were growing up together in normandy, if edward became king of england and had no children. the conquerer's men and horses came in boats powered by oars and sails. the conquest did not take long because of the superiority of his military expertise to that of the english. he organized his army into three groups: archers with bows and arrows, horsemen with swords and stirrups, and footmen with hand weapons. each group played a specific role in a strategy planned in advance. the english army was only composed of footmen with hand weapons such as spears and shields. they fought in a line holding up their shields to overlap each other and form a shieldwall. the defeat of the english was thought to have been presaged by a comet. at westminster, he made an oath to defend god's holy churches and their rulers, to rule the whole people subject to him with righteousness and royal providence, to enact and hold fast right law, and to utterly forbid rapine and unrighteous judgments. this was in keeping with the traditional oath of a new king. declaring the english who fought against him to be traitors, the conquerer declared their land confiscated. but he allowed those who were willing to acknowledge him to redeem their land by a payment of money. as william conquered the land of the realm, he parceled it out among the barons who fought with him so that each baron was given the holdings of an anglo-saxon predecessor, scattered though they were. the barons again made oaths of personal loyalty to him [fealty]. they agreed to hold the land as his vassals with future military services to him and receipt of his protection. they gave him homage by folding their hands within his and saying "i become your man for the tenement i hold of you, and i will bear you faith in life and member [limb] and earthly honor against all men". they held their land "of their lord", the king, by knight's service. the king had "enfeoffed" them [given them a fief: a source of income] with land. the theory that by right all land was the king's and that land was held by others only at his gift and in return for specified service was new to english thought. the original duration of a knight's fee until about was for his life; thereafter it was heritable. the word "knight" came to replace the word "thegn" as a person who received his position and land by fighting for the king. the exact obligation of knight's service was to furnish a fully armed horseman to serve at his own expense for forty days in the year. this service was not limited to defense of the country, but included fighting abroad. the baron led his own knights under his banner. the foot soldiers were from the fyrd or were mercenaries. every free man was sworn to join in the defense of the king, his lands and his honor, within england and without. the saxon governing class was destroyed. the independent power of earls, who had been drawn from three great family houses, was curtailed. most died or fled the country. some men were allowed to redeem their land by money payment if they showed loyalty to the conquerer. well-born women crowded into nunneries to escape norman violence. the people were deprived of their most popular leaders, who were excluded from all positions of trust and profit, especially all the clergy. the earldoms became fiefs instead of magistracies. the conquerer was a stern and fierce man and ruled as an autocrat by terror. whenever the people revolted or resisted his mandates, he seized their lands or destroyed the crops and laid waste the countryside and so that they starved to death. this example pacified others. his rule was strong, resolute, wise, and wary. he was not arbitrary or oppressive. the conquerer had a strict system of policing the nation. instead of the anglo-saxon self-government throughout the districts and hundreds of resident authorities in local courts, he aimed at substituting for it the absolute rule of the barons under military rule so favorable to the centralizing power of the crown. he used secret police and spies and the terrorism this system involved. this especially curbed the minor barons and preserved the public peace. the english people, who outnumbered the normans by to , were disarmed. curfew bells were rung at : pm when everyone had to remain in their own dwellings on pain of death and all fires and candles were to be put out. this prevented any nightly gatherings, assassinations, or seditions. order was brought to the kingdom so that no man dare kill another, no matter how great the injury he had received. the conquerer extended the king's peace on the highways, i.e. roads on high ground, to include the whole nation. any individual of any rank could travel from end to end of the land unharmed. before, prudent travelers would travel only in groups of twenty. the barons subjugated the english who were on their newly acquired land. there began a hierarchy of seisin of land so that there could be no land without its lord. also, every lord had a superior lord with the king as the overlord or supreme landlord. one piece of land may be held by several tenures. for instance, a, holding by barons' service of the king, may enfeoff b, a church, to hold of him on the terms of praying for the souls of his ancestors, and b may enfeoff a freeman c to hold of the church by giving it a certain percentage of his crops every year. there were about barons who held land directly of the king. other fighting men were the knights, who were tenants or subtenants of a baron. knighthood began as a reward for valor on the field of battle by the king or a noble. the value of a knight's fee was s. [ pounds] per year. altogether there were about fighting men holding land. the essence of norman feudalism was that the land remained under the lord, whatever the vassal might do. the lord had the duty to defend the vassals on his land. the vassal owed military service to the lord and also the service of attending the courts of the hundred and the county [formerly "shire"], which were courts of the king, administering old customary law. they were the king's courts on the principle that a crime anywhere was a breach of the king's peace. the king's peace that had covered his residence and household had extended to places where he might travel, such as highways, rivers, bridges, churches, monasteries, markets, and towns, and then encompassed every place, replacing the general public peace. infraction of the king's peace incurred fines to the king. this feudal bond based on occupancy of land rather than on personal ties was uniform throughout the realm. no longer could a man choose his lord and transfer his land with him to a new lord. he held his land at the will of his lord, to be terminated anytime the lord decided to do so. a tenant could not alienate his land without permission of his lord. in later eras, tenancies would be held for the life of the tenant, and even later, for his life and those of his heirs. this uniformity of land organization plus the new requirement that every freeman take an oath of loyalty directly to the king to assist him in preserving his lands and honor and defending him against his enemies, which oath would supersede any oath to any other man, gave the nation a new unity. the king could call men directly to the fyrd, summon them to his court, and tax them without intervention of their lords. and the people learned to look to the king for protection from abuse by their lords. english villani, bordarii, cottarii, and servi on the land of the barons were subjugated into a condition of "villeinage" servitude and became "tied to the land" so that they could not leave the land without their lord's permission, except to go on a pilgrimage. the villeins formed a new bottom class as the population's percentage of slaves declined dramatically. they held their land of their lord, the baron. to guard against uprisings of the conquered people, the barons used villein labor to build about a hundred great stone castles, with moats and walls with towers around them, at easily defensible positions such as hilltops all over the nation. a castle could be built only with permission of the king. a typical castle had a stone building of about four floors [a keep] on a small, steep hill. later it also had an open area surrounded by a stone curtain-wall with towers at the corners. around the outside of the wall were ditches and banks and perhaps a moat. one traveled over these via a drawbridge let down at the gatehouse of the enclosing wall. on either side of the gatehouse were chambers for the guards. arrows could be shot through slits in the enclosing walls. inside the enclosed area might be stables, a granary, barracks for the soldiers, and workshops. the only winter feed was hay, for which the horses, breeding animals, milkcow, and workoxen had a priority over other animals. the bulk of the cattle were usually slaughtered and salted. the castle building typically was entered by an outer wood staircase to the guard room on the second floor. the first [ground] floor had a well and was used as a storehouse and/or dungeons for prisoners. the second floor had a two-storied great hall, with small rooms and aisles around it within the thick walls. there was also a chapel area on the second floor. there were small areas of the third floor which could be used for sleeping. the floors were wood and were reached by a spiral stone staircase in one corner of the building. sometimes there was a reservoir of water on an upper level with pipes carrying the water to floors below. each floor had a fireplace with a slanted flue going through the wall to the outside. there were latrines in the corner walls with a pit or shaft down the exterior of the wall, sometimes to the moat. furs and wool clothes were hung on the walls there in the summer to deter the moths. the first floor had only arrow slits in the walls, but the higher floors had small windows. some curtain-wall castles did not have a central building. in these, the hall was built along the inside of the walls, as were other continuous buildings. the kitchens and chapels were in the towers. lodgings were in buildings along the curtain-walls, or on several floors of the towers. the great hall was the main room of the castle. the hall was used for meals and meetings at which the lord received homages, recovered fees, and held the view of frankpledge [free pledge in latin], in which freemen agreed to be sureties for each other and pay a claim directed at one of them if that man escaped. at the main table, the lord and his lady sat on benches with backs or chairs. the table was covered first with a wool cloth that reached to the floor, and then by a smaller white linen cloth. everyone else sat on benches at trestle tables, which consisted of planks on trestles and could be dismantled, e.g. at night. over the main door were the family arms. on the walls were swords ready for instant use. on the upper parts of the walls could be fox skins and perhaps a polecat skin, and keepers' and huntsmen's poles. there were often hawk perches overhead. at the midday dinner, courses were ceremonially brought in to music, and ritual bows were made to the lord. the food at the head table was often tasted first by a servant as a precaution against poison. hounds, spaniels, and terriers lay near the hearth and cats, often with litters, nestled nearby. they might share in dinner, but the lord may keep a short stick near him to defend morsels he meant for himself. hunting, dove cotes, and carp pools provided fresh meat. fish was compulsory eating on fridays, on fast days, and during lent. cooking was done outside on an open fire, roasting on spits and boiling in pots. some spits were mechanized with a cogged wheel and a weight at the end of a string. other spits were turned by a long handle, or a small boy shielded from the heat by a wet blanket, or by dogs on a treadmill. underneath the spit was a dripping pan to hold the falling juices and fat. mutton fat was used for candles. bread, pies, and pastry dishes were baked in an oven: a hole in a fireproof stone wall fitted with an iron door, in which wood was first burnt to heat the oven walls. it could also be used for drying fruit or melting tallow. fruits were also preserved in honey. salt was stored in a niche in the wall near the hearth and put on the table in a salt cellar which became more elaborate over the years. salt was very valuable and gave rise to the praise of a man as the salt of the earth. costly imported spices such as cinnamon, cloves, nutmeg, ginger, pepper, and a small quantity of sugar were kept in chests. pepper was always on the table to disguise the taste of tainted meat. spices were tried for medicinal use. drinks included wine, ale, cider from apples, perry from pears, and mead. people carried and used their own knives. there were no forks. spoons were of silver or wood. people also ate with their fingers and washed their hands before and after meals. it was impolite to dig into the salt bowl with a knife not previously wiped on bread or napkin, which was linen. it was unmannerly to wipe one's knife or one's greasy fingers on the tablecloth or, to use the tablecloth to blow one's nose. feasts were stately occasions with costly tables and splendid apparel. there were practical jokes, innocent frolics, and witty verbal debating with repartee. they played chess, checkers, and various games with cards and dice. most people could sing and some could play the lute. lighting of the hall at night was by oil lamps or candles on stands or on wall fixtures. for outside activities, a lantern [a candle shielded by a metal cage with panels of finely shaved horn: lant horn] was used. the residence of the lord's family and guests was at a screened off area at the extreme end of the hall or on a higher floor. chests stored garments and jewels. iron keys and locks were used for chests and doors. the great bed had a wooden frame and springs made of interlaced rope or strips of leather. it was covered with a feather mattress, sheets, quilts, fur covers, and pillows. drapery around the bed kept out cold drafts and provided privacy. there was a water bowl for washing in the morning. a chamber pot was kept under the bed for nighttime use. hay was used as toilet paper. the lord's personal servants slept nearby on benches or trundle beds. most of the gentlemen servants slept communally in a "knight's chamber". the floor of the hall was strewn with straw, on which common folk could sleep at night. there were stools on which to sit. cup boards (boards on which to store cups) and chests stored spices and plate. one-piece iron shears were available to cut cloth. handheld spindles were used for weaving; one hand held the spindle [a small stick weighted at one end] while the other hand alternately formed the thread and wound it around the spindle. on the roofs there were rampart walks for sentry patrols and parapets from which to shoot arrows or throw things at besiegers. each tenant of the demesne [household or messuage] of the king where he had a castle had to perform a certain amount of castle guard duty for its continuing defense. these knights performing castle-guard duty slept at their posts. bathing was done in a wooden tub located in the garden in the summer and indoors near the fire in winter. the great bed and tub for bathing were taken on trips with the lord. the entire household was of men, except for the lord's lady with a few lady companions. the ladies rode pillion [on a cushion behind the saddle] or in litters suspended between two horses. markets grew up outside castle walls. any trade on a lord's land was subject to "passage", a payment on goods passing through, "stallage", a payment for setting up a stall or booth in a market, and "pontage", a payment for taking goods across a bridge. the norman man was clean shaven on his face and around his ears and at the nape of the neck. his hair was short. he wore a long- sleeved under-tunic of linen or wool that reached to his ankles. over this the norman noble wore a tunic without sleeves, open at the sides, and fastened with a belt. over one shoulder was his cloak, which was fastened on the opposite shoulder by being drawn through a ring brooch and knotted. he wore tight thick cloth stockings to protect him from the mud and leather shoes. common men wore durable, but drab, wool tunics to the knee so as not to impede them in their work. they could roll up their stockings when working in the fields. a lady wore a high-necked, long- sleeved linen or wool tunic fitted at the waist and laced at the side, but full in the skirt, which reached to her toes. she wore a jeweled belt, passed twice around her waist and knotted in front. her hair was often in two long braids, and her head and ears covered with a white round cloth held in place by a metal circlet like a small crown. its ends were wound around her neck. in winter, she wore over her tunic a cloak edged or lined with fur and fastened at the front with a cord. clothes of both men and ladies were brightly colored by dyes or embroidery. the norman knight wore an over-tunic of leather or heavy linen on which were sewn flat rings of iron and a conical iron helmet with nose cover. he wore a sword at his waist and a metal shield on his back, or he wore his sword and his accompanying retainers carried spear and shield. norman customs were adopted by the nation. as a whole, anglo-saxon men shaved their beards and whiskers from their faces, but they kept their custom of long hair flowing from their heads. but a few kept their whiskers and beards in protest of the normans. everyone had a permanent surname indicating parentage, place of birth, or residence, such as field, pitt, lane, bridge, ford, stone, burn, church, hill, brook, green. other names came from occupations such as shepherd, carter, parker, fowler, hunter, forester, smith. still other came from personal characteristics such as black, brown, and white, short, round, and long. some took their names from animals such as wolf, fox, lamb, bull, hogg, sparrow, crow, and swan. others were called after the men they served, such as king, bishop, abbot, prior, knight. a man's surname was passed on to his son. those few coerls whose land was not taken by a baron remained free and held their land "in socage" and became known as sokemen. they were not fighting men, and did not give homage, but might give fealty, i.e. fidelity. many free sokemen were caught up in the subjugation by baron landlords and were reduced almost to the condition of the unfree villein. the services they performed for their lords were often indistinguishable. they might also hold their land by villein tenure, although free as a person with the legal rights of a freeman. the freeman still had a place in court proceedings which the unfree villein did not. great stone cathedrals were built in fortified towns for the conquerer's norman bishops, who replaced the english bishops. bishops periodically inspected the parishes in their dioceses to maintain discipline aqnd settle any matters that were beyond the local priest's competence, for instance the sacrament of confirmation, in which was conferred upon a christian soul a special strengthening grace after he confirmed his belief in the tenets of christianity. most of the existing and new monasteries functioned as training grounds for scholars, bishops, and statesmen rather than as retreats from the world's problems to the security of religious observance. the number of monks grew as the best minds were recruited into the monasteries. the conquerer made the church subordinate to him. bishops were elected only subject to the king's consent. the bishops had to accept the status of barons. homage was exacted from them before they were consecrated, and fealty and an oath afterward. the conquerer imposed knight's service on bishoprics, abbeys, and monasteries, which was usually commuted to a monetary amount. bishops had to attend the king's court. bishops could not leave the realm without the king's consent. no royal tenant or royal servant could be excommunicated, nor his lands be placed under interdict, without the king's consent. interdict could demand, for instance, that the church be closed and the dead buried in unconsecrated ground. no church rules could be made without his agreement to their terms. no letters from the pope could be received without the king's permission. the archbishop of canterbury was still recognized as a primary advisor to the king. over the years, the selection for this office frequently became a source of contention among king, pope, and clergy. men continued to give land to the church for their souls, such as this grant which started the town of sandwich: "william, king of the english, to lanfranc the archbishop and hugoni de montfort and richard son of earl gilbert and haimo the sheriff and all the thegns of kent, french and english, greeting. know ye that the bishop of bayeux my brother for the love of god and for the salvation of my soul and his own, has given to st. trinity all houses with their appurtenances which he has at sandwich and that he has given what he has given by my license." many private owners of churches gave them to cathedrals or monastic communities, partly to ensure their long term survival, and partly because of church pressure. when the land was all divided out, the barons had about / of it and the church about / . most of the barons had been royal servants. the king retained about / , including forests for hunting, for himself and his family and household, on which he built many royal castles and hundreds of manor [large private estate headed by a lord] houses throughout the nation. he built the massive white tower in london. it was tall with four turrets on top, and commanded a view of the river and bridge, the city and the surrounding countryside. the only windows were slits from which arrows could be shot. on the fourth and top floor was the council chamber and the gallery of the chapel. on the third floor was the banqueting hall, the sword room, and the chapel. the king and his household slept in apartments on these upper floors. stairs went up to the gateway entrance on the second floor, which were hidden by a wall. the garrison's barracks were on the first floor (ground floor). any prisoners were kept in cells at a level below the first floor. the other castles were often built at the old fortification burhs of alfred. each had a constable in charge, who was a baron. barons and earls had castle-guard duty in the king's castles. the conquerer was constantly moving about the land among his and his barons' castles, where he met with his magnates and conducted public business, such as deciding disputes about holding of land. near his own castles and other of his property, he designated many areas as royal hunting forests. anyone who killed a deer in these forests was mutilated, for instance by blinding. people living within the boundaries of the designated forestland could no longer go into nearby woods to get meat or honey, dead wood for firing, or live wood for building. swineherds could no longer drive pigs into these woods to eat acorns they beat down from oak trees. making clearings and grazing livestock in the designated forestland were prohibited. most of the nation was either wooded or bog at this time. london was a walled town of one and two story houses made of mud, twigs, and straw, with thatched roofs. it included a bundle of communities, townships, parishes, and lordships. there were churches, a goods market, a fish market, quays on the river, and a bridge over the river. streets probably named by this time include bread street, milk street, honey lane, wood street, and ironmonger lane. fairs and games were held outside the town walls in a field called "smithfield". the great citizens had the land qualifications of knights and ranked as barons on the conquerer's council. the freemen were a small percentage of london's population. there was a butchers' guild, a pepperers' guild, a goldsmiths' guild, the guild of st. lazarus, which was probably a leper charity (of which there were many in the s and s), the pilgrims' guild, which helped people going on pilgrimages, and four bridge guilds, probably for keeping the wooden london bridge in repair. men told the time by sundials, some of which were portable and could be carried in one's pocket. london could defend itself, and a ringing of the bell of st. paul's church could shut every shop and fill the streets with armed horsemen and soldiers led by a soldier portreeve. across the thames from london on its south side was southwark, a small trading and fishing settlement. the conquerer did not interfere with landholding in london, but recognized its independence as a borough in this writ: "william the king greets william, bishop of london, and gosfrith the portreeve, and all the burgesses [citizens] of london friendly. know that i will that you be worthy of all the laws you were worthy of in the time of king edward. and i will that every child shall be his father's heir after his father's day. and i will not suffer any man to do you wrong. god preserve you." so london was not subjected to the norman feudal system. it had neither villeins nor slaves. whenever kings asserted authority over it, the citizens reacted until the king "granted" a charter reaffirming the freedoms of the city and its independence. under pressure from the ecclesiastical judges, the conquerer replaced the death penalty by that of the mutilation of blinding, chopping off hands, and castrating offenders. castration was the punishment for rape. but these mutilations usually led to a slow death by gangrene. the normans used the anglo-saxon concepts of jurisdictional powers. thus when the conquerer confirmed "customs" to the abbot of ely, these were understood to include the following: ) sac and soke - the right to hold a court of private jurisdiction and enjoy its profits, ) toll - a payment in towns, markets, and fairs for goods and chattel bought and sold, ) team - persons might be vouched to warranty in the court, the grant of which made a court capable of hearing suits arising from the transfer of land, ) infangenthef - right of trying and executing thieves on one's land, ) hamsocne [jurisdiction over breach of the right of security and privacy in a man's house, e.g. by forcible entry], ) grithbrice - violation of the grantees' special peace, for instance that of the sheriff, ) fightwite - fine for a general breach of the peace, ) fyrdwite - fine for failure to appear in the fyrd. every shire, now called "county", had at least one burh, or defensible town. kings had appointed a royal moneyer in each burh to mint silver coins such as pennies for local use. on one side was the king's head in profile and on the other side was the name of the moneyer. when a new coinage was issued, all moneyers had to go to london to get the new dies. the conquerer's head faced frontally on his dies, instead of the usual profile used by former kings. the conquerer held and presided over his council three times a year, as was the custom, at easter, christmas, and whitsuntide, which coincided with the great christian festivals. this was an advisory council and consisted of the conquerer's wife and sons, earls, barons, knights, officers of the king's household, archbishops, and bishops. it replaced the witan of wise men. it dealt with fundamental matters of law, state, war, and church. earldoms and knighthoods were conferred and homages to the king were witnessed. bishops were nominated. attendance at the council, like attendance at courts, was regarded as a burden rather than a privilege. the conquerer's will was the motive force which under lay all the council's action. when it was administering royal justice, it was called the royal court. the justiciar was the head of all legal matters and he or the conquerer's wife represented the king at the royal court in his absence from the realm. the chamberlain was a financial officer of the household; his work was rather that of auditor or accountant. the chancellor headed the chancery and the chapel. other household offices were steward, butler, constable, and marshall. the treasurer was responsible for the collection and distribution of revenue and was the keeper of the royal treasure at the palace at winchester. he was also an important member of the household and sat in the exchequer at westminster, where he received the accounts of the sheriffs. the exchequer was composed of the justiciar as head, the chancellor, the constable, two chamberlains, the marshall and other experienced councilors. the word "exchequer" came from the chequered cloth on the table used to calculate in roman numerals the amount due and the amount paid. the word "calculate" derives from the word "calculi", meaning pebbles. it was a kind of abacus. the exchequer received yearly from the sheriffs of the counties taxes, fines, treasure trove, goods from wrecks, deodands, and movable property of felons, of persons executed, of fugitives, and of outlaws due to the crown. the conqueror presided yearly over feasts involving several thousand guests at westminster hall, which was feet by feet with a high ceiling, the largest hall in england. the conquerer's reign was a time of tentative expedients and simple solutions. he administered by issuing writs with commands or prohibitions. these were read aloud by the sheriffs in the county courts and other locations. administration was by the personal servants of his royal household, such as the chancellor, chamberlain, constable, marshals, steward, and butler. the language of government changed to latin. the chancellor was from the clergy and supervised the writers and clerks, who were literate, and appended the great seal before witnesses to documents. he also headed the staff of the royal chapel. the chamberlain was a financial officer who audited and accounted. the constable was responsible for supplies for the knights of the royal household. he also supervised the care of horses, hounds, hawks, and huntsmen, houndsmen, and foresters. the marshals came from less important families than the constable and they preserved order in the king's hall and recorded expenditures of the household officers on tallies. the steward was a great baron whose duties were chiefly ceremonial, such as placing the dishes before the king at banquets. sheriffs, who had first been head of shires, became powerful figures as the primary agents for enforcing royal edicts. there was no longer supervision of them by earls nor influence on them by bishops. they were customarily prominent barons. they collected the royal taxes, executed royal justice, and presided over and controlled the hundred and county courts. they were responsible for remitting a certain sum annually. if a sheriff received more than necessary, he retained the difference as his lawful profit of office. if he received less than necessary, he had to make up the difference from his own pocket. before rendering this account, he paid the royal benefactions to religious houses, provided for the maintenance of stock on crown lands, paid for the costs of provisions supplied to the court, and paid for traveling expenses of the king and his visitors. the payments were initially paid in kind: e.g. grain, cattle, horses, hounds, and hawks. sheriffs also took part in the keeping of castles and often managed the estates of the king. most royal writs were addressed to the sheriff and county courts. they also led the county militia in time of war or rebellion. at times, a sheriff usurped royal rights, used royal estates for his own purposes, encroached on private land and rights, extorted money, and collected revenues only for his own pockets. over the centuries, there was much competition for the authority to select the sheriff, e.g. by the king, the county court, the barons, and the exchequer. there was also much pressure to limit his term to one year. over time, the powers of the sheriffs slowly declined. royal income came from customary dues, profits of coinage and of justice, and revenues from the king's own estates. for war, there was no change in the custom that a man with five hides of land was required to furnish one heavy armed horseman for forty days service in a year. the fyrd was retained. a threat of a viking invasion caused the conquerer to reinstate the danegeld tax at s. per hide, which was three times its old rate. (the price of an ox was still about d.) to impose this tax uniformly, he sent commissioners to conduct surveys by sworn verdicts of appointed groups of local men. a detailed survey of land holdings and the productive worth of each was made in . the english called it the "doomsday book" because there was no appeal from it. the survey revealed, for instance, that one estate had "on the home farm five plough teams: there are also villeins and cotters with teams among them. there is a mill worth s. a year and one fishery, a church and four acres of meadow, wood for pigs and two stone quarries, each worth s. a year, and two nests of hawks in the wood and slaves." this estate was deemed to be worth s. a year. laxton "had carucates of land [assessed] to the geld. [there is] land for ploughs. there walter, a man of [the lord] geoffrey alselin's has plough and villeins and bordars [a bordar had a cottage and a small amount land in return for supplying small provisions to his lord] having ploughs and serfs and female serf and acres of meadow. wood [land] for pannage [foraging by pigs] league in length and half a league in breadth. in king edward's time it was worth pounds; now [it is worth] pounds." ilbert de laci has now this land, where he has twelve ploughs in the demesne; and forty-eight villani, and twelve bordars with fifteen ploughs, and three churches and three priests, and three mills of ten shillings. wood pastures two miles long, and one broad. the whole manor five miles long and two broad. value in king edward's time sixteen pounds, the same now. that manor of the town of coventry which was individually held was that of the countess of coventry, who was the wife of the earl of mercia. "the countess held in coventry. there are hides. the arable land employs ploughs. in the demesne lands there are ploughs and bondmen. there are villeins and bordars with ploughs. the mill there pay[s] shillings. the woodlands are miles long and the same broad. in king edward's time and afterwards, it was worth pounds [ s.], now only pounds by weight. these lands of the countess godiva nicholas holds to farm of the king." the survey shows a few manors and monasteries owned a salthouse or saltpit in the local saltworks, from which they were entitled to obtain salt. in total there were about , villani [former coerls regarded as customary, irremovable cultivator tenants]; , bordarii; , cotarii and cotseti [held land by service of labor or rent paid in produce], and , servi [landless laborers]. there are no more theows. this survey resulted in the first national tax system of about s. per hide of land. the survey also provided the conquerer with a summary of customs of areas. for instance, in oxfordshire, "anyone breaking the king's peace given under his hand and seal to the extent of committing homicide shall be at the king's mercy in respect of his life and members. that is if he be captured. and if he cannot be captured, he shall be considered as an outlaw, and anyone who kills him shall have all his possessions. the king shall take the possessions of any stranger who has elected to live in oxford and who dies in possession of a house in that town, and without any kinfolk. the king shall be entitled to the body and the possessions of any man who kills another within his own court or house excepting always the dower of his wife, if he has a wife who has received dower. the courts of the king and barons became schools of chivalry wherein seven year old noble boys became pages or valets, wore a dagger and waited upon the ladies of the household. at age fourteen, they were advanced to squires and admitted into more familiar association with the knights and ladies of the court. they perfected their skills in dancing, riding, fencing, hawking, hunting, jousting, and engaged in team sports in which the goal was to put the other side to rout. they learned the knightly art of war. enemy fighters were to be taken and held for ransom rather than killed. those engaging in rebellion were to be pardoned and restored to some or all of their lands and titles. lords' sons could be mutually exchanged with an enemy's as security for peace. after achieving knighthood, a man usually selected a wife from the court at which he grew up. parents tried to send their daughters to a household superior in social status not only to learn manners, but to make a good marriage. a girl who did not marry was often sent to a nunnery; a dowry was necessary before her acceptance. the following incidents of land tenure began (but were not firmly established until the reign of henry ii). each tenant, whether baron or subtenant, was to pay an "aid" in money for ransom if his lord was captured in war, for the knighthood of his lord's eldest son, and for the marriage of his lord's eldest daughter. the aid was theoretically voluntary. land could be held by an heir only if he could fight. the eldest son began to succeed to the whole of the lands in all military tenures. actually, william and his sons insisted on undivided succession rather than a strict application of the primogeniture rule that the eldest son inherit.younger sons of great houses became bishops. an heir of a tenant had to pay a heavy "relief" on succession to his estate. the relief replaced the heriot. if there was a delay in proving heirship or paying relief, the lord would hold the land and receive its income in the meantime, often a year. if an heir was still a minor or female, he or she passed into his lord's wardship, in which the lord had guardianship of the heir and possession of the estate, with all its profits. the mother was not made a minor's guardian. no longer was the estate protected by the minor's kin as his birthright. a female heir was expected to marry a man acceptable to the lord. the estate of an heiress and her land was generally sold to the highest bidder. if there were no heirs, the land escheated [reverted] to the lord. if a tenant committed felony, his land escheated to his lord. the word "felony" came from the latin word meaning "to deceive" and referred to the feudal crime of betraying or committing treachery against one's lord. astrologers resided with the families of the barons. people went to fortune tellers' shops. there was horse racing, steeple races, and chess for recreation. girls had dolls; boys had toy soldiers, spinning tops, toy horses, ships, and wooden models. the state of medicine is indicated by this medical advice brought to the nation by william's son after treatment on the continent: "if thou would have health and vigor shun cares and avoid anger. be temperate in eating and in the use of wine. after a heavy meal rise and take the air sleep not with an overloaded stomach and above all thou must respond to nature when she calls." the conquerer allowed jewish traders to follow him from normandy and settle in separate sections of the main towns. then engaged in long distance trade, money changing, and money lending. they loaned money for interest for the building of castles and cathedrals. christians were not allowed by the church to engage in this usury. the jews could not become citizens nor could they have standing in the local courts. instead, a royal justiciar secured justice for them. they could practice their own religion. william the conquerer was succeeded as king by his son william ii (rufus), who transgressed many of the customs of the nation to get more money for himself. he was killed by an arrow of a fellow hunter while they and william's younger brother henry were hunting together in a crown forest. henry then became king. the law the notion of the king's peace extended until it was the normal and general safeguard of the public order. the norman conquerors brought no code of written law. william's laws largely affirmed the laws of the nation as they were in the times of edward i. these are substantially all of the laws of william i: all freemen shall swear an oath of loyalty to william i and shall uphold his lands and honors and defend them against enemies and aliens. william will protect them and exact no more than legally owed service. if a frenchman summons an englishman for perjury, murder, theft, homicide or open robbery, the englishman shall defend himself by whichever method he prefers, either the ordeal of iron or trial by combat. the person defeated shall pay a fine to the king. if an englishman summons a frenchman and declines to prove the charge by ordeal or by combat, the frenchman shall clear himself by a comprehensive oath. for a charge of outlawry, an englishman shall clear himself by the ordeal of iron. when an englishman brings a charge of outlawry against a frenchman, the frechman will defend himself by combat or by a comprehensive oath, at the choice of the englishman. all the men whom i brought with me [normans] or who come after me shall enjoy my protection. if any of them is slain, his lord shall arrest the slayer within five days, if he can. if not, he shall begin to pay me a "murdrum" fine of marks of silver from the property of that lord as long as it lasts. if the property of the lord fails, the whole hundred in which the murder was committed shall pay in common what remains. all freemen shall be in a frankpledge, so that the frankpledge may bring him to justice, if he has committed an offense or the members of the frankpledge shall pay the claim unless clearing themselves of the charge of any knowledge of fraud by the runaway. the hundred and county courts shall be attended as before. those who are required to appear shall be summoned once. ad if they refuse to appear on the second summons, as ox [worth d.] shall be confiscated. and so for the third summons, another ox. and if they refuse the fourth summons, the "ceapgeld" [ s.] shall be paid and also the fine for insubordination. "everyone who wishes to be admitted to the benefit of the law and to be qualified to obtain legal rights shall be in frankpledge." in mercia, a surety has a month and a day to find an escaped person accused of larceny or robbery, or else shall swear with eleven compurgators that he had not known him to be a thief, that he was not accessory to his flight, and that he cannot find him. then he shall pay for the stolen goods and s. in lieu of the head of the accused man and d. to the jailor, a farthing for the spade, and s. to the king. every lord shall be personally responsible as surety for his servant so that, it an accusation is brought against him, he shall bring him for trial in the hundred court. and if he escapes while he is under the accusation, the lord shall pay his wergeld. and if the lord is accused of being an accessory to his flight, he shall clear himself with compurgators, and if he cannot, he shall pay compensation to the king; and the man shall be an outlaw. all freemen shall keep themselves supplied with arms and horses or pay the full fine of insubordination. all earls, barons, knights, tenants by serjeanty and all free men shall be ready to perform their service defending me against enemies and aliens, by virtue of their fiefs, which are hereditary. or pay the fine for insubordination. the heriot of an earl, which falls to the king, is horses - of them bridled and saddled - coats of mail, helmets, shields, lances and swords. of the other horses, shall be hunters and riding horses with bridlos and halters. the heriot of a baron is horses - bridled and saddled - coats of mail, helmets, shields, swords and lances. and of the other horses, shall be a hunter and a riding horse with bridles and halters. the heriot of a thegn of lower rank to his liege lord shall be discharged by (delivering up) his father's horse, as it was in the day of his death, his helmet, his shield, his coat of mail, and lance and his sword. and if he was without equipment, having neither horse nor arms, it shall be discharged by the payment of s. the heriot of a villain: he shall give to this lord the best animal that he has, either a horse, an ox, or a cow. and further all villeins shall be in frankpledge. for those who hold their land by the payment of rent, the legal heriot shall be the equivalent of a year's rent. no one shall entertain a man for more than days, unless he is committed to this charge by the man with whom he was formerly serving. and no one shall let any of his men leave him after an accusation has all men shall keep the law of edward relating to the tenure of estates. been brought against him. i prohibit the slaying or hanging of anyone for any offense, but his eyes shall be put out and he shall suffer castration, so the trunk remains alive as a sign of his treachery and wickedness. if a person violates this, he shall pay the insubordination fee. all cities, boroughs, castles, hundreds and wapentakes shall be guarded every night on all sides against malefactors and enemies, as our sheriffs, earldormen, reeves and other officials and servants best provide. the protection of the church is inviolable. whatever crime a man has committed, if he can make his way to a holy church, he shall have protection for life and limb. and if anyone lays hands on him there, he shall pay for anything he has taken and a fine of s. for a bishop's church, abbey or monastery, s. for a parish church, and s. for a chapel. "if a man wishes to prove against his lord that he has an agreement for his land, he must do so by means of his fellow-tenants whom he summons as witnesses, for he cannot do so by means of strangers." if a man slays another he shall pay manbot to the lord of the slain man in the amount of s. for a free man and s. for a slave. the wergeld of a thegn is pounds in mercia and pounds in wessex. the wergeld of a villain is s. ( s. would buy a stallion, s. a bull and s. a boar.) s. of the wergeld shall be paid to the widow and children and the relatives and orphans shall divide what remains among themselves. the archbishop shall have as compensation for breach of his protection s. in mercia, a bishop s., an earl s., a baron s.,and a sokeman d. if a man wounds another he shall pay for medical attendance and if he is wounded on the face, or a part which is visible, for every inch d., on the head or any hidden place, for every inch d., for every piece of bone drawn out of the wound d. if a man cuts off the hand or foot of another, he shall pay half his wergeld according to his inherited rank. for the thumb he shall pay half the value of his hand, for the finger next the thumb, s. according to the english reckoning (i.e. d. to the shilling), for the middle finger s., for the ring-finger s., for the little finger s., for the nail if it is cut away from the flesh, english s., for the nail of the little finger d. "if a man poisons another, he shall be slain or sent into permanent exile." there is a s. fine for violation of the king's peace or attack on people's houses or for premeditated waylaying. if anyone slays or assaults anyone who is traveling through the country on any of the following four highways, namely, watling street, ermine street, the fosse way, the icknied way, he violates the king's peace. (two of these streets extended the length of the kingdom and two extended across its width.) for the guarding of roads, every hides of the hundred shall supply a man between michaelmas and martinmas, or pay compensation for any livestock taken over the road, unless they have raised the hue and cry of been subject to force. a peasant is not to be harassed or ejected except for not performing his legal services. a peasant leaving the estate where he was born must be returned to it. if a father finds his daughter in adultery in his own or in his son-in-laws house, he may slay the adulterer. the same holds for a son and his mother during the father's lifetime. "he who assaults the wife of another man shall forfeit his wergeld to his lord." "if anyone assaults a woman he shall suffer castration as a penalty." "if a woman who is pregnant is sentenced to death or to mutilation, the sentence shall not be carried out until she is delivered." if anyone knocks out a man's eye by any kind of accident, he shall pay english shillings as compensation. and if he destroys the sight without displacing the pupil, he shall pay only half the sum. "if a man dies intestate [without a will], his children shall divide the inheritance equally among themselves." and if anyone comes upon a thief and of his own accord lets him escape, without raising the hue and cry, he shall make compensation by the payment of the thief's value or clear himself. "and if anyone hears the hue and cry and neglects it, he shall pay the fine for neglecting it to the king, or clear himself." if a man captures a thief without the hue and cry being given, the injured man shall pay s. as a fine for neglecting to arrest the thief. if theft is discovered on anyone's land and the thief is discovered, the lord of the estate and the thief's wife shall have half of his property and the claimants shall have their goods, if they find them. and with regard to the other half, if the theft is discovered in a district over which the lord has rights of jurisdiction, the wife shall lose her share and it shall pass to the lord. "further, we forbid the buying or selling of any livestock except within towns and before three trustworthy witnesses, likewise that of any second-hand goods without a surety and warrantor." the penalty is twice the value of the goods and the fine for insubordination. no one shall buy anything of d. in value, either livestock or other property, unless he has men as witnesses either from a town or a village. if anyone claims it and he has no witnesses and no warrantor, the goods shall be given up to the claimant and the fine shall be paid to the party who is entitled thereto. and if he has such witnesses, vouching to warranty shall take place three times; and on the fourth occasion he shall prove his ownership of it or deliver it up. if anyone has taken livestock into his care, whether horses or oxen or cows or sheep or pigs, the man who claims them shall pay d. and no more in return for the care of them, however many there are up to a hundred head of cattle. as for one pig, d, for one sheep, d., and so on up to d. and he shall give pledge and find surety, that if another man comes forward within a year and a day to claim them, he will bring it for decision to the court of the man who had taken them into his own care. strayed livestock and found property shall be exhibited in three parts of the neighborhood. anyone who claims it shall give pledge and surety and if another claims it within a year and a day, he will bring it for decision to the court of the man who found it. the attachment of livestock: if anyone desires to claim it as stolen, and is willing to give pledge and find surety for prosecuting his claim, he who has possession of it must name his warrantor if he has one. if not, he shall name his surety and his witnesses, and produce them at the appointed day and time, if he has them, and the claimant shall give a pledge with compurgators, and the other shall give the livestock into the hands of his warrantor or his surety, whichever of these he has. and if he has neither but has witnesses that he bought it in the public market and that he does not know whether his warrantor or his pledge is dead or alive, he shall swear to this along with his witnesses with a simple oath. in this way he shall lose his goods, but escape punishment, if they bear witness that he obtained a surety for them. and, in mercia, if he can produce neither warrantor nor witness, he shall lose the goods and pay in addition compensation to the claimant and forfeit is wergeld to his lord. and if he can prove that it is of his own breeding by means of witnesses drawn from three parts of his neighborhood he shall have won his case. there shall be no market or fair except in boroughs or castles or other enclosed or well-guarded places. weights and measures shall be stamped and reliable as before. "likewise if slaves have remained for a year and a day, without being claimed, in our cities or in our walled boroughs or in our castles, from that day they shall become free men." i forbid anyone to sell a christian out of the country, especially into heathen lands, or pay the fine for insubordination to me. anyone can set free a slave of his by presenting him to the sheriff in the county court and giving him the arms of a freeman, namely a lance and sword. if i cast your things overboard from a ship in fear of death, then you cannot bring a charge against me. the things that remained in the ship shall be divided in common according to the value of the goods originally belonging to each person. he who possesses livestock of the value of d. shall pay peter's pence, and then his laborers, herdsmen, and servants shall be exempt. otherwise he shall pay a fine of d. to the bishop and s. to the king. if a man accuses another of theft and the latter is a free man and can produce witnesses to prove that he is entitled to the benefit of the law, he shall clear himself by the simple oath (of exculpation). and those who have been (previously) accused shall clear themselves by the oath with selected compurgators, that is by means of qualified men nominated (by the court) of whom must act as the accused man's compurgators to clear him of the charge, if he can find as many to do so. and if he cannot find them, he shall defend himself against the charge by the ordeal. and the plaintiff shall swear by means of men nominated (by the court), of whom must act as his compurgators, that he does nothing through malice or for any other reason than to obtain his legal right. and if anyone is accused of breaking into a church or a treasury, and has no previous convictions, he shall clear himself with compurgators found among qualified men nominated (by the court). and if he has been previously accused, he shall clear himself with three times as many, namely with compurgators found among qualified men nominated (by the court). and if he cannot find them, he shall go to the triple ordeal, just as he had (to produce) a triple oath. and if he has previously paid compensation for theft, he shall go to the water ordeal. he who gives a false judgment shall forfeit his wergeld to his lord, unless he can swear on the holy relics that he did not know how to give a better decision. no one shall be condemned to death for a trivial crime, but another penalty shall be devised according to the nature and magnitude of the crime. he who makes an unjust judgment because of rage, malice, or bribery forfeits s. to the king and loses his right of jurisdiction. a judgment given in a case between those concerned cannot affect injuriously others who are not present. he who refuses to observe just law and just judgment shall forfeit a fine to the party who is entitled thereto, the king pounds, an earl s. and to all those who have a court in england. no one shall appeal to the king until he fails to obtain justice in the hundred or county courts. "when a man carries on a suit in any court other than that in which the king is present in person, and it is maintained against him that he has said something which he will not acknowledge - if he can prove by means of a trustworthy man, who has seen and heard all the suit, that he did not say it, then the validity of his word shall be admitted." "and if anyone who has charges brought against him in the hundred court to such an extent that men accuse him, he shall clear himself with compurgators." "no one shall make distraint of property whether in the county court or outside it, until he has demanded justice three times in the hundred or in the county courts." if the man against whom he is bringing his charge fails to appear the fourth time, he shall get leave to make distraint for what is his own. if anyone who is accused and against whom evidence of untrustworthiness is given fails three times to attend the court proceedings, and if, at the fourth meeting of the court, the summoners bring forward his three defections, he shall once more be asked to find a surety and appear before the court. and if he refuses, he shall be seized, alive or dead, and all that he has shall be taken, and the value of his goods shall be paid to the claimant, and the lord of the thief shall take half of what remains and the hundred half. one god shall be honored throughtout the kingdom. by charter, william granted to londoners all the rights they had in the time of king edward and willed that every child should be his father's heir. judicial procedure "ecclesiastical" courts were created for bishops to preside over cases concerning the cure of souls and criminal cases, in which the ordeal was used. when the conqueror did not preside over this court, an appeal could be made to him. the hundred and county courts now sat without clergy and handled only "civil" cases. they were conducted by the king's own appointed sheriff. only freemen and not bound villeins had standing in this court. they continued to transact their business in the english language. the local jurisdictions of thegns who had grants of sac and soke or who exercised judicial functions among their free neighbors were now called "manors" and their owners conducted a manor court. the conqueror's royal court ["curia regis"] replaced the witan. it was composed of those to whom william had made grants of land on the understanding that they should perform certain feudal services to him. when the conqueror wished to determine the national laws, he summoned twelve elected representatives of each county to declare on oath the ancient lawful customs and law as they existed in the time of the popular king edward the confessor. the recording of this law was begun. a person could spend months trying to catch up with the royal court to present a case. sometimes the conqueror sent the justiciar or commissioners to hold his royal court in the various districts. the commissioner appointed groups of local men to give a collective verdict upon oath for each trial he conducted. the conqueror allowed, on an ad hoc basis, certain high-level people such as bishops and abbots and those who made a large payment, to have land disputes decided by an inquiry of recognitors. besides royal issues, the royal court heard appeals from lower court decisions. it used english, norman, feudal, roman, and canon law legal principles to reach a decision, and was flexible and expeditious. the powers of the shire court were lessened by the expanding authority of the royal court. trial by combat could be used in two instances: ) a dispute between a frenchman and an englishman over seisin of land initiated by a writ of right, or ) a criminal appeal of felony brought by an englishman or frenchman against the other. each combatant first swore to the truth of his cause and undertook to prove by his body the truth of his cause by making the other surrender by crying "craven" [craving forgiveness]. the combatants used weapons like pickaxes and shields. presumably the man in the wrong would not fight as well because he was burdened with a guilty conscience. although this trial was thought to reflect god's will, it favored the physically fit and adept person. after losing the trial by combat, the guilty person would be punished appropriately. london had its own traditions. all london citizens met at its folkmote, which was held three times a year to determine its public officers, to raise matters of public concern, and to make ordinances. its criminal court had the power of outlawry as did the county courts. trade, land, and other civil issues were dealt with by the hustings court, which met every monday in the guildhall. the city was divided into wards, each of which was under the charge of an elected alderman [elder man]. (the election was by a small governing body and the most wealthy and reputable men and not a popular election.) the aldermen had special knowledge of the law and a duty to declare it at the hustings court. each alderman also conducted wardmotes in his ward and decided criminal and civil issues between its residents. within the wards were the guilds of the city. king william i decided a lawsuit regarding land on the basis of testimony of the county thus: "william, by god's grace king of the english, to bishop walkelin, {sheriff} hugh de port and his lieges of hampshire, greeting. i notify you that i have restored to archbishop thomas of york one hide of land pertaining to the church of mottisfont, as archbishop ealdred best had it at the time of king edward, in meadows and wood and pasture and in common pasturage for as many animals as the maximum he could have there at the time of king edward, as was testified before bishop [william] of durham and bertram de verdun and devised by the men of the county. farewell. witnesses: bishop william of durham and bertram de verdun." the royal court decided this case: "at length both parties were summoned before the king's court, in which there sat many of the nobles of the land of whom geoffrey, bishop of coutances, was delegated by the king's authority as judge of the dispute, with ranulf the vicomte, neel, son of neel, robert de usepont, and many other capable judges who diligently and fully examined the origin of the dispute, and delivered judgment that the mill ought to belong to st. michael and his monks forever. the most victorious king william approved and confirmed this decision." chapter the times: - king henry i, son of william the conquerer, furthered peace between the normans and native english by his marriage to a niece of king edward the confessor called matilda. she married him on condition that he grant a charter of rights undoing some practices of the past reigns of william i and william ii. peace was also furthered by the fact that henry i had been born in england and english was his native tongue. the private wars of lords were now replaced by less serious mock battles. henry was a shrewd judge of character and of the course of events, cautious before taking action, but decisive in carrying out his plans. he was faithful and generous to his friends. he showed a strong practical element of calculation and foresight. although illiterate, he was intelligent and a good administrator. he had an efficient intelligence gathering network and an uncanny knack of detecting hidden plans before they became conspiratorial action. he made many able men of inferior social position nobles, thus creating a class of career judges and administrators in opposition to the extant hereditary aristocracy. he loved books and built a palace at oxford to which he invited scholars for lively discussion. euclid's "elements" ", which deduced from axioms the properties of lines, circles, and spheres, was introduced into england. queen matilda served as regent of the kingdom in henry's absence, as william's queen had for him. both queens received special coronation apart from their husbands; they held considerable estates which they administered through their own officers, and were frequently composed of escheated honors. matilda was learned and a literary patron. she founded an important literary and scholastic center. her compassion was great and her charities extensive. in london she founded several almshouses and a caregiving infirmary for lepers. these were next to small monastic communities. she also had new roads and bridges built. henry issued charters restoring customs which had been subordinated to royal impositions by previous kings, which set a precedent for later kings. his coronation charter describes certain property rights he restored after the oppressive reign of his brother, william ii. "henry, king of the english, to samson the bishop, and urse of abbetot, and to all his barons and faithful vassals, both french and english, in worcestershire, greeting. [ .] know that by the mercy of god and by the common counsel of the barons of the whole kingdom of england i have been crowned king of this realm. and because the kingdom has been oppressed by unjust exactions, i now, being moved by reverence towards god and by the love i bear you all, make free the church of god; so that i will neither sell nor lease its property; nor on the death of an archbishop or a bishop or an abbot will i take anything from the demesne of the church or from its vassals during the period which elapses before a successor is installed. i abolish all the evil customs by which the kingdom of england has be unjustly oppressed. some of those evil customs are here set forth. [ .] if any of my barons or of my earls or of any other of my tenants shall die his heir shall not redeem his land as he was wont to do in the time of my brother, but he shall henceforth redeem it by means of a just and lawful relief. similarly the men of my barons shall redeem their lands from their lords by means of a just and lawful relief. [ .] if any of my barons or of my tenants shall wish to give -in marriage his daughter or his sister or his niece or his cousin, he shall consult me about the matter; but i will neither seek payment for my consent, nor will i refuse my permission, unless he wishes to give her in marriage to one of my enemies. and if, on the death of one of my barons or of one of my tenants, a daughter should be his heir, i will dispose of her in marriage and of her lands according to the counsel given me by my barons. and if the wife of one of my tenants shall survive her husband and be without children, she shall have her dower and her marriage portion [that given to her by her parents], and i will not give her in marriage unless she herself consents. [ .] if a widow survives with children under age, she shall have her dower and her marriage portion, so long as she keeps her body chaste; and i will not give her in marriage except with her consent. and the guardian of the land, and of the children, shall be either the widow or another of their relations, as may seem more proper. and i order that -my barons shall act likewise towards the sons and daughters -and widows of their men. [ .] i utterly forbid that the common mintage [a forced levy to prevent loss to the king from depreciation of the -coinage], which has been taken from the towns and counties, shall henceforth be levied, since it was not so levied in the time of king edward [the confessor]. if any moneyer or other person be taken with false money in his possession, let true justice be visited upon him. [ .] i forgive all pleas and all debts which were owing to my brother, except my own proper dues, and except those things which were agreed to belong to the inheritance of others, or to concern the property which justly belonged to others. and if anyone had promised anything for his heritage, i remit it, and i also remit all 'reliefs' which were promised for direct inheritance. [ .] if any of my barons or of my men, being ill, shall give away or bequeath his movable property, i will allow that it shall be bestowed according to his desires. but if, prevented either by violence or through sickness, he shall die intestate as far as concerns his movable property, his widow or his children, or his relatives or one his true men shall make such division for the sake of his soul, as may seem best to them. [ .] if any of my barons or of my men shall incur a forfeit, he shall not be compelled to pledge his movable property to an unlimited amount, as was done in the time of my father [william i] and my brother; but he shall only make payment -according to the extent of his legal forfeiture, as was done before the time of my father and in the time of my earlier predecessors. nevertheless, if he be convicted of breach of faith or of crime, he shall suffer such penalty as is just. [ .] i remit all murder fines which were incurred before the day on which i was crowned king; and such murder fines as shall now be incurred shall be paid justly according to the law of king edward [by sureties]. [ .] by the common counsel of my barons i have retained the forests in my own hands as my father did before me. [ .] the knights, who in return for their estates perform military service equipped with a hauberk [long coat] of mail, shall hold their demesne lands quit of all gelds [money payments] and all labor services; i make this concession as my own free gift in order that, being thus relieved of so great a burden, they may furnish themselves so well with horses and arms that they may be properly equipped to discharge my service and to defend my kingdom. [ .] i establish a firm peace in all my kingdom, and i order that this peace shall henceforth be kept. [ .] i restore to you the law of king edward together with such emendations to it as my father [william i] made with the counsel of his barons. [ .] if since the death of my brother, king william [ii], anyone shall have seized any of my property, or the property of any other man, let him speedily return the whole of it. if he does this no penalty will be exacted, but if he retains any part of it he shall, when discovered, pay a heavy penalty to me. witness: maurice, bishop of london; william, bishop-elect of winchester; gerard, bishop of herefore; henry the earl; simon the earl; walter giffard; robert of montfort-sur-risle; roger bigot; eudo the steward; robert, son of haimo; and robert malet. at london when i was crowned. farewell." henry took these promises seriously, which resulted in peace and justice. royal justice became a force to be reckoned with by the multiplication of justices. henry had a great respect for legality and the forms of judicial action. he became known as the "lion of justice". the payment of queen's gold, that is of a mark of gold to the queen out of every hundred marks of silver paid, in the way of fine or other feudal incident, to the king, probably dates from henry i's reign. a woman could inherit a fief if she married. the primary way for a man to acquire control of land was to marry an heiress. if a man were in a lower station than she was, he had to pay for his new social status as well as have royal permission. a man could also be awarded land which had escheated to the king. if a noble woman wanted to hold land in her own right, she had to make a payment to the king. many widows bought their freedom from guardianship or remarriage from the king. women whose husbands were at war also ran the land of their husbands. barons were lords of large holdings of farmland called "manors". many of the lesser barons left their dark castles to live in semi- fortified stone houses, which usually were of two rooms with rug hangings for drafts, as well as the sparse furniture that had been common to the castle. there were shuttered windows to allow in light, but which also let in the wind and rain when open. the roof was of thatch or narrow overlapping wood shingles. the stone floor was strewn with hay and there was a hearth near the center of the floor, with a louvered smoke hole in the timber roof for escape of smoke. there were barns for grain and animals. beyond this area was a garden, orchard, and sometimes a vineyard. the area was circumscribed by a moat over which there was a drawbridge to a gatehouse. the smaller room was the lord and lady's bedroom. it had a canopied bed, chests for clothing, and wood frames on which clothes could be hung. life on the manor revolved around the larger room, or hall, where the public life of the household was passed. there, meals were served. the daily diet typically consisted of milk, soup, porridge, fish, vegetables, and bread. open hospitality accompanied this communal living. there was little privacy. manor household villeins carried the lord's sheaves of grain to the manor barn, shore his sheep, malted his grain, and chopped wood for his fire. at night some slept on the floor of the hall. others, who were cottars and bordars, had their own dwellings nearby. the manor house of lesser lords or knights was still built of wood, although it often had a stone foundation. about % of the land was arable land, about % was common pasture land (for grazing only) or meadow land (near a stream or river and used for hay or grazing), and about % was woodland. there were these types of land and wasteland on each manor. the arable land was allotted to the villeins in strips to equalize the best and worst land and their distance from the village where the villeins lived. there was three-way rotation of wheat or rye, oats or barley, and fallow land. cows, pigs, sheep, and fowl were kept. the meadow was allocated for hay for the lord's household and each villein's. the villeins held land of their lord for various services such as agricultural labor or raising domestic animals. the villeins worked about half of their time on their lord's fields [his demesne land], which was about a third of the farmland. this work was primarily to gather the harvest and to plough with oxen, using a yoke over their shoulders, and to sow in autumn and lent. they threshed grain on barn floors with flails cut from holly or thorn, and removed the kernels from the shafts by hand. work lasted from sunrise to sunset and included women and children. the older children could herd geese and pigs, and set snares for rabbits. the young children could gather nuts and berries in season and other wild edibles, and could pick up little tufts of wool shed by sheep. the old could stay in the hut and mind the children, keep the fire going and the black pot boiling, sew, spin, patch clothes, and cobble shoes. the old often suffered from rheumatism. many people had bronchitis. many children died of croup [inflammation of the respiratory passages]. life expectancy was probably below thirty-five. the villein retained his customary rights, his house and land and rights of wood and hay, and his right in the common land of his township. customary ways were maintained. the villeins of a manor elected a reeve to communicate their interests to their lord, usually through a bailiff, who directed the labor. sometimes there was a steward in charge of several of a lord's manors, who also held the manorial court for the lord. the steward held his land of the lord by petty serjeanty, which was a specific service to the lord. other serjeanty services were carrying the lord's shield and arms, finding attendants and esquires for knights, helping in the lord's hunting expeditions, looking after his hounds, bringing fuel, doing carpentry, and forging irons for ploughs. the woodward preserved the timber. the messer supervised the harvesting. the hayward removed any fences from the fields after harvest to allow grazing by cattle and sheep. the coward, bullard, and calvert tended the cows, bulls, and calves; the shepherd, the sheep; and the swineherds the pigs. the ponder impounded stray stock. there were varieties of horses: war horses, riding horses, courier horses, pack horses, and plough horses. the majority of manors were coextensive with a single village. the villeins lived in the village in one-room huts enclosed by a wood fence, hedge, or stone wall. in this yard was a garden of onions, leeks, mustard, peas, beans, parsley, garlic, herbs, and cabbage and apple, pear, cherry, quince, and plum trees, and beehives. the hut had a high-pitched roof thatched with reeds or straw and low eaves reaching almost to the ground. the walls are built of wood-framing overlaid with mud or plaster. narrow slits in the walls serve as windows, which have shutters and are sometimes covered with coarse cloth. the floor is dirt and may be covered with straw or rushes for warmth, but usually no hearth. in the middle is a wood fire burning on a hearthstone, which was lit by making a spark by striking flint and iron together. the smoke rose through a hole in the roof. at one end of the hut was the family living area, where the family ate on a collapsible trestle table with stools or benches. their usual food was beans and peas, oatmeal gruel, butter, cheese, vegetables, honey, rough bread made from a mixture of wheat, barley, and rye flour, herrings or other salt fish, and some salted or smoked bacon. butter had first been used for cooking and as a medicine to cure constipation. for puny children it could be salted down for the winter. the bread had been roasted on the stones of the fire; later there were communal ovens set up in villages. cooking was done over the fire by boiling in iron pots hung from an iron tripod, or sitting on the hot stones of the fire. they ate from wood bowls using a wood spoon. when they had fresh meat, it could be roasted on a spit. liquids were heated in a kettle. with drinking horns, they drank water, milk, buttermilk, apple cider, mead, ale made from barley malt, and bean and vegetable broth. they used jars and other earthenware, e.g. for storage of salt. they slept on straw mattresses or sacks on the floor or on benches. the villein regarded his bed area as the safest place in the house, as did people of all ranks, and kept his treasures there, which included his farm implements, as well as hens on the beams, roaming pigs, and stalled oxen, cattle, and horses, which were at the other end of the hut. fires were put out at night to guard against fire burning down the huts. the warmth of the animals then helped make the hut warm. around the room are a couple of chests to store salt, meal, flour, a broom made of birch twigs, some woven baskets, the distaff and spindle for spinning, and a simple loom for weaving. all clothes were homemade. they were often coarse, greasy wool and leather made from their own animals. the man wore a tunic of coarse linen embroidered on the sleeves and breast, around with he wore a girdle of rope, leather, or folded cloth. sometimes he also wore breeches reaching below the knee. the woman wore a loose short-sleeved gown, under which was a tight fitting garment with long loose sleeves, and which was short enough to be clear of the mud. if they wore shoes, they were clumsy and patched. some wore a hood-like cap. for really bad weather, a man wore on his head a hood with a very elongated point which could be wrapped around his neck. sometimes a short cape over the shoulders was attached. linen was too expensive for commoners. the absence of fresh food during the winter made scurvy prevalent; in the spring, people eagerly sought "scurvy grass" to eat. occasionally there would be an outbreak of a nervous disorder due to the ergot fungus growing in the rye used for bread. this manifested itself in apparent madness, frightening hallucinations, incoherent shouting, hysterical laughing, and constant scratching of itching and burning sensations. the villein and his wife and children worked from daybreak to dusk in the fields, except for sundays and holydays. he had certain land to farm for his own family, but had to have his grain milled at his lord's mill at the lord's price. he had to retrieve his wandering cattle from his lord's pound at the lord's price. he was expected to give a certain portion of his own produce, whether grain or livestock, to his lord. however, if he fell short, he was not put off his land. the villein, who worked the farm land as his ancestor ceorl had, now was so bound to the land that he could not leave or marry or sell an ox without his lord's consent. if the manor was sold, the villein was sold as a part of the manor. when his daughter or son married or if he sent his son to school,he had to pay a "merchet" to his lord. he could not have a son educated without the lord's permission, and this usually involved a fee to the lord. his best beast at his death, or "heriot", went to his lord. if he wanted permission to live outside the manor, he paid "chevage" yearly. woodpenny was a yearly payment for gathering dead wood. sometimes a "tallage" payment was taken at the lord's will. the villein's oldest son usually took his place on his land and followed the same customs with respect to the lord. for an heir to take his dead ancestor's land, the lord demanded payment of a "relief", which was usually the amount of a year's income but sometimes as much as the heir was willing to pay to have the land. the usual aids were also expected to be paid. a large village also had a smith, a wheelwright, a millwright, a tiler and thatcher, a shoemaker and tanner, a carpenter wainwright and carter. markets were about twenty miles apart because a farmer from the outlying area could then carry his produce to the nearest town and walk back again in the daylight hours of one day. in this local market he could buy foodstuffs, livestock, household goods, fuels, skins, and certain varieties of cloth. the cloth was crafted by local weavers, dyers, and fullers. the weaver lived in a cottage with few and narrow windows and little furniture. he worked in the main, and sometimes the only, room. first the raw wool was washed with water at the front door to remove the grease. then its fibers were disentangled and made fine with hand cards with thistle teeth, usually by the children. then it was spun by a spinning wheel into thread, usually by the wife. on a double frame loom, a set of parallel threads was strung lengthwise. a device worked by a pedal lifted half of these threads --every other thread--while the other half remained in place. between the lifted threads and the stationary threads a shuttle was thrown by the weaver from one hand to another. then the threads which had remained stationary were raised by a second pedal and the shuttle thrown back. the shuttle carried a spool so that, as it moved, it left a thread behind it running crosswise or at right angles to the lengthwise threads and in and out between them. the lengthwise threads were called the "warp"; the shuttle thread was the "woof" or the "weft".in making cloth, it was the warp which, as the loom moved, took the worst beating. with the constant raising and lowering, these treads would wear and break, whereas the weft on which there was little strain remained intact. none of the cotton yarn which the old-fashioned wheels had spun was strong enough for warp. so it was necessary to use linen thread for the warp. since one loom could provide work for about six spinners, the weaver had his wool spun by other spinners in their cottages. sometimes the master weaver had an apprentice or workman working and living with him, who had free board and lodging and an annual wage. then a fuller made the cloth thick and dense by washing, soaping, beating, and agitating it, with the use of a community watermill which could be used by anyone for a fixed payment. the cloth dried through the night on a rack outside the cottage. the weaver then took his cloth, usually only one piece, to the weekly market to sell. the weavers stood at the market holding up their cloth. the cloth merchant who bought the cloth then had it dyed or dressed according to his requirements. its surface could be raised with teazleheads and cropped or sheared to make a nap. some cloth was sold to tailors to make into clothes. often a weaver had a horse for travel, a cow for milk, chickens for eggs, perhaps a few cattle, and some grazing land. butchers bought, slaughtered, and cut up animals to sell as meat. some was sold to cooks, who sold prepared foods. the hide was bought by the tanner to make into leather. the leather was sold to shoemakers and glovemakers. millers bought harvested grain to make into flour. flour was sold to bakers to make into breads. wood was bought by carpenters and by coopers, who made barrels, buckets, tubs, and pails. tilers, oilmakers and rope makers also bought raw material to make into finished goods for sale. wheelwrights made ploughs, harrows, carts, and later wagons. smiths and locksmiths worked over their hot fires. games with dice were sometimes played. in winter, youths ice- skated with bones fastened to their shoes. they propelled themselves by striking the ice with staves shod with iron. on summer holydays, they exercised in leaping, shooting with the bow, wrestling, throwing stones, and darting a thrown spear. the maidens danced with timbrels. since at least , children's toys included dolls, drums, hobby horses, pop guns, trumpets, and kites. the cold, indoors as well as outdoors, necessitated that people wear ample and warm garments. men and women of position dressed in long full cloaks reaching to their feet, sometimes having short full sleeves. the cloak generally had a hood and was fastened at the neck with a brooch. underneath the cloak was a simple gown with sleeves tight at the wrist but full at the armhole, as if cut from the same piece of cloth. a girdle or belt was worn at the waist. when the men were hunting or working, they wore gown and cloak of knee length. men wore stockings to the knee and shoes. the fashion of long hair on men returned. the nation grew with the increase of population, the development of towns, and the growing mechanization of craft industries. there were watermills for crafts and for supplying and draining water in all parts of the nation. in flat areas, slow rivers could be supplemented by creating artificial waterfalls, for which water was raised to the level of reservoirs. there were also some iron- smelting furnaces. coal mining underground began as a family enterprise. stone bridges over rivers could accommodate one person traveling by foot or by horseback and were steep and narrow. the wheelbarrow came into use to cart materials for building castles and cathedrals. merchants, who had come from the low end of the knightly class or high end of the villein class, settled around the open market areas, where main roads joined. they had plots narrow in frontage along the road and deep. their shops faced the road, with living space behind or above their stores. town buildings were typically part stone and part timber as a compromise between fire precautions and expense. towns, as distinct from villages, had permanent markets. as towns grew, some became boroughs by paying a fee to obtain a charter for self-government from the king giving the town judicial and commercial freedom. they were literate enough to do accounts. so they did their own valuation of the sum due to the crown so as not to pay the sheriff any more than that. these various rights were typically expanded in future times, and the towns received authority to collect the sum due to the crown rather than the sheriff. this they did by obtaining a charter renting the town to the burgesses at a fee farm rent equal to the sum thus deducted from the amount due from the county. the freemen were "free of the borough", which meant they had exclusive rights and privileges with respect to it. selling wholesale could take place only in a borough. burgesses were free to marry. they were not subject to defense except of the borough. they were exempt from attendance at county and hundred courts. the king assessed a tallage [ad hoc tax] usually at ten per cent of property or income. in the boroughs, merchant and manufacturing guilds controlled prices and assured quality. the head officer of the guild usually controlled the borough, which excluded rival merchant guilds. a man might belong to more than one guild, e.g. one for his trade and another for religion. the frankpledge system prevailed in the boroughs. craft guilds grew up in the towns, such as the tanners at oxford, which later merged with the shoemakers into a cordwainers' guild. there were weavers' guilds in several towns, including london, which were given royal sanction and protection for annual payments (twelve pounds of silver for london). they paid an annual tribute and were given a monopoly of weaving cloth within a radius of several miles. guild rules covered attendance of the members at church services, the promotion of pilgrimages, celebration of masses for the dead, common meals, relief of poor brethren and sisters, the hours of labor, the process of manufacture, the wages of workmen, and technical education. king henry standardized the yard as the length of his own arm. trades and crafts, each of which had to be licensed, grouped together by specialty in the town. cloth makers, dyers, tanners, and fullers were near an accessible supply of running water, upon which their trade depended. streets were often named by the trade located there, such as butcher row, pot row, cordwainer row, ironmonger row, wheeler row, and fish row. hirers of labor and sellers of wheat, hay, livestock, dairy products, apples and wine, meat, poultry, fish and pies, timber and cloth all had a distinct location. some young men were apprenticed to craftsmen to assist them and learn their craft. london had bought the right to have an elected mayor. the norman word "mayor" replaced "portreeve". henry i granted the londoners the right to elect a sheriff and a justiciar from among themselves. london had at least twenty wards, each governed by its own alderman. most of them were named after people. london was ruled by sixteen families linked by business and marriage ties. these businesses supplied luxury goods to the rich and included the goldsmiths [sold cups, dishes, girdles, mirrors, purses knives, and metal wine containers with handle and spout], vintners [wine merchants], mercers [sold textiles, haberdashery, combs, mirrors, knives, toys, spices, ointments, and potions], drapers, and pepperers, which later merged with the spicers to become the "grocers", skinners, tanners, shoemakers, woolmen, weavers, fishmongers, armorers, and swordsmiths. there were bakehouses at which one could leave raw joints of meat to be cooked and picked up later. these businesses had in common four fears: royal interference, foreign competition, displacement by new crafts, and violence by the poor and escaped villeins who found their way to the city. when a non-freeholder stayed in london he had to find for frankpledge, three sureties for good behavior. failure to do so was a felony and the ward would eject him to avoid the charge of harboring him with its heavy fine. the arrival of ships with cargoes from continental ports and their departure with english exports was the regular waterside life below london bridge. many foreign merchants lived in london. imports included timber, hemp, fish, and furs. there was a fraternal organization of citizens who had possessed their own lands with sac and soke and other customs in the days of king edward. there were public bathhouses, but they were disreputable. a lady would take an occasional bath in a half cask in her home. the church warned of evils of exposing the flesh, even to bathe. middlesex county was london's territory for hunting and farming. all london craft work was suspended for one month at harvest time. london received this charter for self-government and freedom from the financial and judicial organization of the county: "henry, by the grace of god, king of england, to the archbishop of canterbury and the bishops, abbots, earls, barons, justiciars, sheriffs and all his loyal subjects, both french and english, throughout the whole of england - greeting. . -be it known to you that i have granted middlesex to my citizens of london to be held on lease by them and their heirs of me and my heirs for pounds paid by tale [yearly], upon these terms: that the citizens themselves [may] appoint a sheriff, such as they desire, from among themselves, and a justiciar, such as they desire, from among themselves, to safeguard the pleas of my crown [criminal cases] and to conduct such pleas. and there shall be no other justiciar over the men of london. . -and the citizens shall not take part in any [civil] case whatsoever outside the city walls. - - ) and they shall be exempt from the payment of scot and danegeld and the murder fine. - - ) and none of them shall take part in trial by combat. - - ) and if any of the citizens has become involved in a plea of the crown, he shall clear himself, as a citizen of london, by an oath which has been decreed in the city. - - ) and no one shall be billeted [lodged in a person's house by order of the king] within the walls of the city nor shall hospitality be forcibly exacted for anyone belonging to my household or to any other. - - ) and all the citizens of london and all their effect [goods] shall be exempt and free, both throughout england and in the seaports, from toll and fees for transit and market fees and all other dues. - - ) and the churches and barons and citizens shall have and hold in peace and security their rights of jurisdiction [in civil and criminal matters] along with all their dues, in such a way that lessees who occupy property in districts under private jurisdiction shall pay dues to no one except the man to whom the jurisdiction belongs, or to the official whom he has placed there. - - ) and a citizen of london shall not be amerced [fined by a court when the penalty for an offense is not designated by statute] to forfeiture of a sum greater than his wergeld, [hereby assessed as] shillings, in a case involving money. - - ) and further there shall be no miskenning [false plea causing a person to be summoned to court] in a husting [weekly court] or in a folkmote [meeting of the community], or in any other court within the city. - - ) and the hustings [court] shall sit once a week on monday. - - ) and i assure to my citizens their lands and the property mortgaged to them and the debts due to them both within the city and without. - - ) and with regard to lands about which they have pled in suit before me, i shall maintain justice on their behalf, according to the law of the city. - - ) and if anyone has exacted toll or tax from citizens of london, the citizens of london within the city shall [have the right to] seize [by process of law] from the town or village where the toll or tax was exacted a sum equivalent to that which the citizen of london gave as toll and hence sustained as loss. - - ) and all those who owe debts to citizens shall pay them or shall clear themselves in london from the charge of being in debt to them. - - ) but if they have refused to pay or to come to clear themselves, then the citizens to whom they are in debt shall [have the right to] seize [by process of law] their goods [including those in the hands of a third party, and bring them] into the city from the [town, village or] county in which the debtor lives [as pledges to compel appearance in court]. - - ) and the citizens shall enjoy as good and full hunting rights as their ancestors ever did, namely, in the chilterns, in middlesex, and in surrey. witnessed at westminster." the above right not to take part in any case outside the city relieved london citizens from the burden of traveling to wherever the king's court happened to be, the disadvantage of not knowing local customs, and the difficulty of speaking in the language of the king's court rather than in english. the right of redress for tolls exacted was new because the state of the law was that the property of the inhabitants was liable to the king or superior lord for the common debt. newcastle-on-tyne was recognized by the king as having certain customs, so the following was not called a grant: "these are the laws and customs which the burgesses of newcastle upon tyne had in the time of henry king of england and ought to have. [ ] -burgesses can distrain [take property of another until the other performs his obligation] upon foreigners within, or without their own market, within or without their own houses, and within or without their own borough without the leave of the reeve, unless the county court is being held in the borough, and unless [the foreigners are] on military service or guarding the castle. [ ] -a burgess cannot distrain upon a burgess without the leave of the reeve. [ ] -if a burgess have lent anything of his to a foreigner, let the debtor restore it in the borough if he admits the debt, if he denies it, let him justify himself in the borough. [ ] -pleas which arise in the borough shall be held and -concluded there, except pleas of the crown. [ ] -if any burgess be appealed [sued] of any plaint, he shall not plead without the borough, unless for default of [the borough] court. [ ] -nor ought he to answer without day and term, unless he have fallen into 'miskenning' [error in pleading], except in matters which pertain to the crown. [ ] -if a ship have put in at tynemouth and wishes to depart, the burgesses may buy what they will [from it]. [ ] -if a plea arise between a burgess and a merchant, it shall be concluded before the third ebb of the tide. [ ] -whatever merchandise a ship has brought by sea must be landed, except salt; and herring ought to be sold in the ship. [ ] if any man have held land in burgage for a year and a day, lawfully and without claim, he shall not answer a claimant, unless the claimant have been without the realm of - - -england, or a child not of age to plead. [ ] if a burgess have a son, he shall be included in his father's freedom if he be with his father. [ ] if a villein come to dwell in the borough, and dwell there a year and a day as a burgess, he shall abide altogether, unless notice has been given by him or by his master that he is dwelling for a term. [ ] if any man appeal [sue] a burgess of any thing, he cannot do [trial by] battle with the burgess, but the burgess shall defend himself by his law, unless it be of treason, whereof he is bound to defend himself by [trial by] battle. [ ] neither can a burgess do [trial by] battle against a foreigner, unless he first go out of the borough. [ ] no merchant, unless he be a burgess, may buy [outside] the town either wool or leather or other merchandise, nor within the borough except [from] burgesses. [ ] if a burgess incur forfeit, he shall give six ounces [ s.] to the reeve. [ ] in the borough there is no merchet [payment for marrying off a daughter] nor heriot nor bloodwite [fine for drawing blood] nor stengesdint [fine for striking with a stick]. [ ] every burgess may have his own oven and handmill if he will, saving the right of the king's oven. [ ] if a woman be in forfeit for bread or beer, no one ought to interfere but the reeve. if she forfeit twice, she shall be chastised by her forfeit. if three times, let justice be done on her. [ ] no one but a burgess may buy webs [woven fabrics just taken off the loom] to dye, nor make nor cut them. [ ] a burgess may give and sell his land and go whither he will freely and quietly unless there be a claim against him." the nation produced sufficient iron, but a primitive steel [iron with carbon added] was imported. it was scarce and expensive. steel was used for tools, instruments, weapons and armor. ships could carry about people. navigation was by simple charts that included wind direction for different seasons and the direction of north. the direction of the ship could be generally determined when the sky was clear by the position of the sun during the day or the north star during the night. plays about miracles wrought by holy men or saints or the sufferings and fortitude of martyrs were performed, usually at the great church festivals. most nobles could read, though writing was still a specialized craft. there were books on animals, plants, and stones. the lives of the saints as told in the book "the golden legend" were popular. the story of the early king arthur was told in the book "the history of the kings of england". the story at this time stressed arthur as a hero and went as follows: arthur became king at age . he had an inborn goodness and generosity as well as courage. he and his knights won battles against foreign settlers and neighboring clans. once, he and his men surrounded a camp of foreigners until they gave up their gold and silver rather than starve. arthur married guenevere and established a court and retinue. leaving britain in the charge of his nephew modred, he fought battles on the continent for land to give to his noblemen who did him service in his household and fought with him. when arthur returned to britain, he made battle with his nephew modred who had crowned himself king. arthur's knight gawain, the son of his sister, and the enemy modred were killed and arthur was severely wounded. arthur told his kinsman constantine to rule britain as king in his place. the intellectual world included art, secular literature, law, and medicine. there were about physicians. the center of government was a collection of tenants-in-chief, whose feudal duty included attendance when summoned, and certain selected household servants of the king. the exchequer became a separate body. the payments in kind, such as grain or manual services, from the royal demesnes had been turned into money payments. the great barons made their payments directly to the exchequer. the income from royal estates was received by the exchequer and then commingled with the other funds. each payment was indicated by notches on a stick, which was then split so that the payer and the receiver each had a half showing the notches. the exchequer was the great school for training statesmen, justices, and bishops. the chancellor managed the domestic matters of the crown's castles and lands. the great offices of state were sold for thousands of pounds, which caused their holders to be on their best behavior for fear of losing their money by being discharged from office. one chancellor paid henry about pounds for the office. henry brought sheriffs under his strict control, free from influence by the barons. he maintained order with a strong hand, but was no more severe than his security demanded. forests were still retained by kings for their hunting of boars and stags. a master forester maintained them. the boundaries of the royal forests were enlarged. they comprised almost one-third of the kingdom. certain inhabitants thereof supplied the royal foresters with meat and drink and received certain easements and rights of common therein. the forest law reached the extreme of severity and cruelty under henry i. punishments given included blinding, emasculation, and execution. offenders were rarely allowed to substitute a money payment. when fines were imposed they were heavy. a substantial number of barons and monasteries were heavily in debt to the jews. the interest rate was % ( d. per pound per week). the king taxed the jews at will. the law henry restored the death penalty (by hanging) for theft and robbery, but maintained william i's punishment of mutilation by blinding and severing of limbs for other offenses, for example, bad money. he decreed in that false and bad money should be amended, so that he who was caught passing bad denarii should not escape by redeeming himself but should lose his eyes and members. and since denarii were often picked out, bent, broken, and refused, he decreed that no denarius or obol, which he said were to be round, or even a quadrans, if it were whole, should be refused. (money then reached a higher level of perfection, which was maintained for the next century.) counterfeiting law required that "if any one be caught carrying false coin, the reeve shall give the bad money to the king however much there is, and it shall be charged in the render of his farm [payment] as good, and the body of the offender shall be handed over to the king for judgment, and the serjeants who took him shall have his clothes." the forest law stated that: "he that doth hunt a wild beast and doth make him pant, shall pay shillings: if he be a freeman, then he shall pay double. if he be a bound man, he shall lose his skin." a "verderer" was responsible for enforcing this law, which also stated that: "if anyone does offer force to a verderer, if he be a freeman, he shall lose his freedom, and all that he hath. and if he be a villein, he shall lose his right hand." further, "if such an offender does offend so again, he shall lose his life." a wife's dower is one-third of all her husband's freehold land, unless his endowment of her at their marriage was less than one- third. debts to townsmen were recoverable by this law: "if a burgess has a gage [a valuable object held as security for carrying out an agreement] for money lent and holds this for a whole year and a day, and the debtor will not deny the debt or deliver the gage, and this is proved, the burgess may sell the gage before good witnesses for as much as he can, and deduct his money from the sum. if any money is over he shall return it to the debtor. but if there is not enough to pay him, he shall take distress again for the amount that is lacking." past due rent in a borough was punishable by payment of s. as fine. judicial activity encouraged the recording of royal legislation in writing which both looked to the past and attempted to set down law current in henry's own day in the leges henrici primi. this showed an awareness of the ideal of written law as a statement of judicial principles as well as of the practice of kingship. in this way, concepts of roman law used by the normans found their way into english law. the laws of henry i in the leges henrici primi have as subjects judicial procedure, proper judging, conduct of people involved in litigation, litigation procedure, required witnesses, evidence, credibility, quotes from legal references, oaths, perjury, geographical divisions of england, court sessions and attendance, order of court proceedings, adjournments, frankpledge, strangers, types of causes and their manner of hearing, royal jurisdiction, ecclesiastical pleas of the king, offenses, compensations, penalties, reliefs, the king's peace, forest pleas, exculpation, soke, jurisdiction of royal judges, the king's judges, summons, oathhelpers, transfer of cases, trials of pleas, unjust judgments, sureties, lords who sue, accusations, court procedure, pleadings, postponements, record of proceedings, failure to appear, counsel, summoning the hundred, summoning the county court, distraints, partners of common property, rights of jurisdiction of a lord over his man, holdings in farm, disputes between neighbors, trial by battle, slaves, pleas between a lord's reeve and those who are subject to him, suits by royal judges, wergelds, murdrum fine, letting go of a thief, slaying of or by a cleric, confessions, men of ill repute, ordeals, compensations, bondmen, intent, inheritance, dowries, homicide by magicians, definition of homicide, killing one's lord, foreigners, debtors, illegitimacy, foundlings, the king's peace, homicide in the king's court, royal highways, self-defense, drinking assemblies, mutual enemies, leading into wrong-doing, lent arms, marauders, weapons, killing a relative, pledge, negligence, and wounds to body parts. a sampling of the laws of henry i follows: "these are the jurisdictional rights which the king of england has in his land solely and over all men, reserved through a proper ordering of peace and security: breach of the king's peace given by his hand or writ; danegeld; the pleas of contempt of his writs or commands; the death or injury of his servants wherever occurring; breach of fealty and treason; any contempt or slander of him; fortifications consisting of three walls; outlawry; theft punishable by death; murdrum; counterfeiting his coinage; arson; hamsocn [breach of the right of security and privacy in a man's house by forcible entry into it]; forestel [attacking an enemy unexpectedly or lying in wait for him on the road and attacking him] passenger on the king's highway]; fyrding [action regarding the military array or land force of the whole country]; flymenfyrm [the reception or relief of a fugitive or outlaw]; premeditated assault; robbery; stretbreche [destroying a road by closing it off or diverting it or digging it up]; unlawful appropriation of the king's land or money; treasure-trove; wreck of the sea; things cast up by the sea; rape; abduction; forests; the reliefs of barons; fighting in the king's dwelling or household; breach of the peace in the king's troop; failure to perform burgbot [a contribution to the repair of castles or walls of defense, or of a borough]; or brigbot [a tribute or contribution to the repair of bridges]; or firdfare [a summoning forth to a military expedition]; receiving and maintaining an excommunicated person or an outlaw; violation of the king's protection; flight in a military or naval battle; false judgment; failure of justice; violation of the king's law." "some pleas cannot be compensated for with money; these are: husbreche [housebreaking or burglary], arson, manifest theft, palpable murder, treachery towards one's lord, and violation of the peace of the church or the protection of the king through the commission of homicide." "compensation is effected by the payment of one hundred shillings for the following: grithbreche [breach of the peace], stretbreche, forestel, violation of the king's protection, hamsocn, and flymenfyrm." hamsocn is an attack on a house and occurs if anyone assaults another in his own house or the house of someone else with a band of men or pursues him so that he hits the door or the house with arrows or stones or produces a perceptible blow from any source. it also is committed if anyone goes with premeditation to a house where he knows his enemy to be and attacks him there, whether he does this by day or by night. it also occurs if anyone pursues a person fleeing into a mill or sheephold. if in a court of house dissension has arisen and fighting follows as well, and someone pursues another person fleeing into the other house, it shall be considered hamsocn if there are two roofs there. the following place a man in the king's mercy: breach of his peace which he gives to anyone by his own hand; contempt of his writs and anything which slanders injuriously his own person or his commands; causing the death of his servants in a town or fortress or anywhere else; breach of fealty and treason; contempt of him; construction of fortifications without permission; the incurring of outlawry (anyone who suffers this shall fall into the king's hand, and if he has any bocland [lands held by deed or other written evidence of title]; manifest theft punishable by death." if any englishman is slain without fault on his part, compensation shall be paid to his relatives according to this wergeld. wite and manbot shall be paid to the appropriate lords in accordance with the amount of the wergeld. where a wergeld of s. is payable, then s. must be paid as manbot, which equals mancuses; where the wergeld is s., that is, for a thegn, the manbot is s, which amounts to mancuses. "for the oath of a thegn equals the oaths of six villeins; if he is killed he is fully avenged by the slaying of six villeins and if compensation is paid for him, his wergeld is the wergeld for six villeins." some freemen are men, some men, and others men. a man has a wergeld of s., which equal pounds. a man is a person of noble rank, that is, a thegn, whose wergeld is s., which equal pounds. his healsfang is s., which today equals s. ( sheep are worth s., as is one horse.) homicide by a magical potion or witchcraft or sorcery practiced with images or by any kind of enchantment cannot be compensated. if the bewitched person does not die, but suffers some change of the skin or demonstrable physical sickness, compensation shall be paid as prescribed by the ancient provisions of wise men, in accordance with the circumstances. "if anyone kills his lord, then if in his guilt he is seized, he shall in no manner redeem himself but shall be condemned to scalping or disemboweling or to human punishment which in the end is so harsh that while enduring the dreadful agonies of his tortures and the miseries of his vile manner of death he may appear to have yielded up his wretched life before in fact he has won an end to his sufferings, and so that he may declare, if it were possible, that he had found more mercy in hell than had been shown to him on earth." "if anyone kills his man without his having merited death, he shall just the same pay compensation for him to his relatives according to the amount of his wergeld, because the man was his to render service, not to be killed." "a person who breaks the king's peace which he confers on anyone with his own hand shall, if he is seized, suffer the loss of his limbs." "if anyone has the king's peace given by the sheriff or other official and a breach of it is committed against him, then this is a case of grithbreche and compensation of one hundred shillings shall be paid, if settlement can be effected by payment of compensation." "on whosoever's land a slaying takes place, the lord who has his rights of soke and sake shall, if the slayer, when caught on the spot, is released on providing security or is detained after being charged, receive the fihtwite." if anyone is slain in an attack by a band of marauders, the slayer shall pay the wergeld to the relatives, and manbot to the lord, and all who were present shall pay hlothbot, that is to say, they shall pay compensation of s. for a man, s. for a man, and s. for a man. in the case of every payment of wergeld for a slaying, two parts are the responsibility of the paternal kindred, and one third part is the responsibility of the maternal kin. if the kindred of a man who slays another abandons him and will not pay compensation for him, then all the kindred shall be free from the feud except the wrongdoer alone, if they thereafter provide him with neither food nor protection. "if a woman commits homicide, vengeance shall be taken against her or her descendants or her blood relatives (or she shall pay compensation for it), not against her husband or his innocent household." amends shall nonetheless be made whether these things are done intentionally or unintentionally. however, the possibility of a friendly settlement or of clemency is to be treated as the more likely or the more remote depending on the degree of blame attaching to the person who has been slain, and according to the circumstances. if a woman is slain, compensation is to be paid according to her wergeld, which is decided by her paternal relationship. the manbot shall be determined by the standing of the lord. "any person may aid his lord without incurring a wite if anyone attacks him, and may obey him in all lawful matters except in the case of breach of feudal loyalty, theft, murder, and similar offences, the commission of which has in absolutely no way been permitted, and which are branded as crimes by the laws." in the same way a lord must in the appropriate circumstances keep his man with advice as well as support, and may do so in all ways without penalty. "anyone who fights in the king's dwelling shall forfeit his life." "if anyone commits the offence of blodwite [an amercement for bloodshed], fihtwite [a fine for making a quarrel to the disturbance of the peace], legerwite [fine for unlawful cohabitation], or anything of that nature, and he escapes from the scene without being obliged to provide security for future appearance in court or without a charge being laid there, the jurisdiction at law belongs to his own lord." infiht or insocna is the offense committed by those who are living in community in a house; this is compensated for by a payment of the wite to the head of the household, if he has jurisdiction over accuser and accused. if anyone leaps to arms and disturbs the peace of a house, but does not strike anyone, his liability is half the penalty. compensation for wounds are as follows: on the head if both bones have been pierced s.; on the head if only the outer bone has been pierced s.; a wound under the hair one inch long d., that is, s.; a wound in front of the hair d, that is s.; injury to the throat s.; injury on the neck causing a curvature or stiffness or a lasting disability s. plus whatever has been paid out for medical treatment.; external injury to the hand s.; if half the hand flies off s.; rib broken but the skin remains whole s.; rib broken and the skin is broken and the bone is drawn out s.; loss of any eye or hand or foot or tongue s. d. and a third part of a penny; loss of sight but with the eye remaining in the head s. d.; wound on the shoulder if the person lives s.; shoulder wound so that the fluid from the joints runs out s.; shoulder maimed s.; an injury within a shoulder so that a bone is drawn out s.; arm broken above the elbow s.; both bones in the arm broken s.; arm cut off below the elbow s.; wound in the belly s.; pierced through the belly s. for each opening; a thigh pierced or broken s.; shin struck off below the knee s.; the shin broken s.; shin pierced below the knee s.; broken shinbone s.; wound in the genitals so that there is loss of the capacity to procreate s.; loins maimed s.; loins pierced through s.; loins punctured s.; injury to the great sinews of another's lower leg if they recover through response to medical treatment s.; injury to the sinews which cauces lameness s.; injury to the small sinews s.; striking a blow without causing blood to flow d. for each blow up to a total of three blows, no matter how many blows are actually struck, for a total of d.; knocking out first teeth or incisors s.; canines or `cheek' teeth s.; molars s.; broken cheeks s.; a thumb cut off s.; a thumbnail cut off s.; an index finger s; an index fingernail s.; a middle or `unchaste' finger s; a middle fingernail s.; a ring finger or `medical' finger s.; a ring fingernail s.; an `ear' finger s.; an `ear' fingernail s., that is d.; the big toe cut off s.; the second toe s.; the third toe s.; the fourth toe s., the fifth toe s.; "if anyone suffers a wound, not involving the cutting off or maiming or breaking of a limb, on an uncovered and visible place (for example, in front of the hair or below the sleeve or beneath the knees), the compensation to be paid shall be double what would be due in the case of a wound inflicted on the head under the hair or on the limbs beneath the clothes, that is, on a concealed place." "anyone who commits a theft, who betrays his lord, who deserts him in a hostile encounter or military engagement, who is defeated in trial by battle or who commits a breach of the feudal bond shall forfeit his land." in the case of stolen property worth more than d., the accused shall choose which of the two he wishes, either the simple ordeal or an oath of the value of one pound with oath helpers taken from three hundreds. "if anyone dares to dig up or despoil, in scandalous and criminal fashion, a body buried in the ground or in a coffin or a rock or a pyramid or any structure, he shall be regarded as an outlaw." "if a person condemned to death wishes to confess, it shall never be refused him." "if anyone who is a father dies and leaves as son or daughter to inherit, they shall not maintain an action or submit to a court judgment before reaching fifteen years of age; but they shall remain seised, under guardians and trustees in the lawful custody of their relatives, just as their father was on the day when he was alive and dead." "if anyone dies without children, his father or mother shall succeed to the inheritance, or his brother or sister, if neither father nor mother is living." if he does not possess these relatives, then his father's or mother's sister, and thereafter relatives up to the fifth `joint', whoever are the nearest in relationship, shall succeed by the law of inheritance. while the male line subsists, and the inheritance descends from that side, a woman shall not succeed. "the first born son shall have the father's ancestral fee' the latter shall give any purchases or subsequent acquisitions of his to whomever he pleases." if a person has bocland which his kinsmen have left him, he shall not dispose of it outside his kindred. "if a wife survives her husband she shall have in permanent ownership her dowry and her maritagium which had been settled on her by written documents or in the presence of witnesses and her morning-gift and a third part of all their jointly acquired property in addition to her clothing and her bed." "if a woman dies without children, her blood relatives shall divide up her share with her husband." a man may fight against as person whom he finds with his wedded wife, after the second or third prohibition, behind closed doors or under the one covering, or with his daughter whom he begot on his wife, or with his sister who was legitimately born, or with his mother who was lawfully wedded to his father. there is pecuniary compensation if a married woman commits fornication and she is of the rank of ceorl or belongs to the s. class or the s. class, and physical mutilation has been prescribed for those persisting in the offence. "women who commit fornication and destroy their embryos, and those who are accessories with them, so that they abort the foetus from the womb, are by an ancient ordinance excommunicated from the church until death." a milder provision has now been introduced: they shall do penance for ten years. "if anyone kills or while sleeping crushes another person's child who has been entrusted to him for rearing or instruction, he shall pay compensation for him just as if he had killed an adult person." the county meetings shall be attended by the bishops, earls, sheriffs, deputies, hundredmen, aldermen, stewards, reeves, barons, vavassors [those who hold of a baron], village reeves, and the other lords of lands who shall with diligence see to it that failure to punish evildoers or the viciousness of officials or the corruption of judges shall not destroy those suffering under their accustomed afflictions. every cause shall be determined in the hundred court or county court or the hallmoot of those who have soke or in the courts of feudal lords or in the boundary courts of feudal equals or as it pertains to established places for court proceedings. "in the case of soke of pleas, some of these profits belong peculiarly and exclusively to the royal treasury, some are shared by it with others, some belong to the sheriffs and royal officials in their farm, and some belong to the lords who have soke and sake." "the king's judges shall be the barons of the county and those who hold free lands in the counties, by whom the causes and of individuals must be dealt with by the presentation in turn of complaint and defense." anyone who violates or subverts the written law shall forfeit his wergeld on the first occasion; on the second occasion the penalty is twice the wergeld; and anyone who ventures to do it a third time shall lose whatever he possesses. "each person is to be judged by men who are of equal status and from the same district as himself." "no one of high status shall be condemned by the judgment of lesser men." "whoever gives an unjust judgment shall forfeit one hundred and twenty shillings and shall lose his judicial authority unless he redeems it from the king." if there are contrary opinions among the judges in serious pleas, the decision of the most substantial men and that with which the royal justice has concurred shall prevail. "some persons are slaves by birth, others become slaves subsequently; of the latter, some are enslaved by purchase, some by way of satisfaction for an offence, some give themselves in slavery or are given by another person, and some become slave by falling under any other classifications, all of which we may wish nevertheless to be included in that one category of slavery, for which we propound the description `accident' - so that the position has been expressed in this way: some are slaves by accident, others by birth." church law provided that only consent between a man and woman was necessary for marriage. there needn't be witnesses, ceremony, nor consummation. consent could not be coerced. penalties in marriage agreements for not going through with the marriage were deemed invalid. villeins and slaves could marry without their lords' or owners' permission. a couple living together could be deemed married. persons related by blood within certain degrees, which changed over time, of consanguinity were forbidden to marry. this was the only ground for annulment of a marriage. a legal separation could be given for adultery, cruelty, or heresy. annulment, but not separation, could result in remarriage. fathers were usually ordered to provide some sustenance and support for their illegitimate children. the court punished infanticide and abortion. counterfeiters of money, arsonists, and robbers of pilgrims and merchants were to be excommunicated. church sanctuary was to be given to fugitives of violent feuds until they could be given a fair trial. judicial procedure courts extant now are the royal court, the king's court of the exchequer, county courts, and hundred courts, all of which were under the control of the king. his appointed justices administered justice in these courts on regular circuits. instead of being the presiding official at the county court, the sheriff now only produced the proper people and preserved order at the county courts and presided over the nonroyal pleas and hundred courts. he impaneled recognitors, made arrests, and enforced the decisions of the royal courts. also there are manor courts, borough courts, and ecclesiastical courts. in the manor courts, the lord's reeve generally presided. the court consisted of the lord's vassals and declared the customs and law concerning such offenses as failure to perform services and trespass on manorial woods, meadow, and pasture. the king's royal court heard issues concerning the crown and breaches of the king's peace, which included almost all criminal matters: murder, robbery, rape, abduction, arson, treason, breach of fealty, housebreaking, ambush, certain kinds of theft, premeditated assault, and harboring outlaws or excommunicants. henry personally presided over hearings of important legal cases. he punished crime severely. he hanged homicides, exiled traitors, and frequenly used loss of hand and foot. in comparison, william had no one hanged, but used emasculation and exoculation frequently. offenders were brought to justice not only by the complaint of an individual or local community action, but by official prosecutors. a prosecutor was now at trials as well as a justice. trial is still mostly by compurgation but trial by combat was relatively common. these offenses against the king placed merely personal property and sometimes land at the king's mercy. thus the crown increased the range of offenses subject to its jurisdiction and arrogated to itself profits from the penalties imposed. the death penalty could be imposed for murder and replaced the old wergeld. but a murderer could be given royal pardon from the death penalty so that he could pay compensation to the relatives. the royal court also heard these offenses against the king: fighting in his dwelling, contempt of his writs or commands, encompassing the death or injury of his servants, contempt or slander of the king, and violation of his protection or his law. it heard these offenses against royal authority: complaints of default of justice or unjust judgment, pleas of shipwrecks, coinage, treasure trove [money buried when danger approached], forest prerogatives, and control of castle building. slander of the king, the government, or high officials was punishable as treason, felony, misprision of treason, or contempt, depending on the rank and office of the person slandered and the degree of guilt. henry began the use of writs to intervene in civil matters such as inquiry by oath and recognition of rights as to land, the obligations of tenure, the legitimacy of heirs, and the enforcement of local justice. writs were requested by people who wanted to come to the royal court. the royal court used its superior coercive power to enforce the legal decisions of the county, hundred, and private courts. it also reviewed miscarriages of justice and unlawful procedures in these courts. there was a vigorous interventionism in the land law subsequent to appeals to the king in landlord-tenant relations, brought by a lord or by an undertenant. assizes [those who sit together] of local people who knew relevant facts were put together to assist the court. henry appointed some locally based justices. also, he sent justices from the royal court out on eyres [journeys] to hold assizes. this was done at special sessions of the county courts, hundred courts, and manor courts. records of the verdicts of the royal court were sent with these itinerant justices for use as precedent in these courts. thus royal authority was brought into the localities and served to check baronial power over the common people. these itinerant justices also transacted the local business of the exchequer in each county. henry created the office of chief justiciar, which carried out judicial and administrative functions and could travel anywhere in the country and make legal decisions in the king's name. the royal court retained cases of gaol delivery [arrested person who had been held in gaol was delivered to the court] and amercements [discretionary money payments which took the place of the old wites]. it also decided cases in which the powers of the popular courts had been exhausted or had failed to do justice. the royal court also decided land disputes between barons who were too strong to submit to the county courts. the king's court of the exchequer reviewed the accounts of sheriffs, including receipts and expenditures on the crown's behalf as well as sums due to the treasury, located still at winchester. these sums included rent from royal estates, the danegeld land tax, the fines from local courts, and aid from baronial estates. its records were the "pipe rolls", so named because sheets of parchment were fastened at the top, each of which dropped into a roll at the bottom and so assumed the shape of a pipe. the county and hundred courts assessed the personal property of individuals and their taxes due to the king. the county court decided land disputes between people who had different barons as their respective lords. the free landholders were expected to attend county, hundred, and manor courts. they owed "suit" to it. the suitors found the dooms [laws] by which the presiding officer pronounced the sentence. the county courts heard cases of theft, brawling, beating, and wounding, for which the penalties could be exposure in the pillory or stocks. the pillory held an offender's head and hands in holes in boards, and the stocks held one's hands and feet. here the public could scorn and hit the offender or throw fruit, mud, and dead cats at him. for sex offenders and informers, stones were usually thrown. sometimes a person was stoned to death. damages in money replaced the old bots. the county courts met twice yearly. if an accused failed to appear after four successive county courts, he was declared outlaw at the fifth and forfeited his civil rights and all his property. he could be slain by anyone at will. the hundred court met once a month to hear neighborhood disputes, for instance concerning pastures, meadows and harvests. usually present was a priest, the reeve, four representative men, and sometimes the lord or his steward in his place. sometimes the chief pledges were present to represent all the men in their respective frankpledges. the bailiff presided over all these sessions except two, in which the sheriff presided over the full hundred court to take the view of frankpledge, which was required for those who did not have a lord to answer for him. the barons held court on their manors at a "hallmote" for issues arising between people living on the manor, such as bad ploughing on the lord's land or letting a cow get loose on the lord's land, and land disputes. this court also made the decision of whether a certain person was a villein or freeman. the manor court took over issues which had once been heard in the vill or hundred court. the baron charged a fee for hearing a case and received any fines he imposed, which amounted to significant "profits of justice". boroughs held court on trading and marketing issues in their towns such as measures and weights, as well as issues between people who lived in the borough. the borough court was presided over by a reeve who was a burgess as well as a royal official. wealthy men could employ professional pleader-attorneys to advise them and to speak for them in a court. the ecclesiastical courts, until the time when henry viii took over the church, dealt with family matters such as marriage, annulments, marriage portions and settlements of money or goods, legitimacy, undue wifebeating, child abuse, orphans, bigamy, adultery, incest, fornication, and separations between husband and wife. there were no divorces. they also dealt during this time with drunkenness, personal possessions, defamation, slander which did not cause material loss (and therefore had no remedy in the temporal courts), libel, perjury, usury, mortuaries [the second best beast or fees at death], sacrilege, sorcery, witchcraft, blasphemy [speaking ill of god], heresy [a belief by a baptized person that is knowingly contrary to the doctrine of the church], tithe payments, oblations for performing the eucharist including expenses for the bread and wine, church fees such as for the clergy and the poor, simony [buying or selling ecclesiastical preferment or pardons], pensions, certain offenses on consecrated ground, and breaches of promises under oath, e.g. to pay a debt, provide services, or deliver goods. they decided inheritance and will issues which did not concern land, but only personal property. this developed from the practice of a priest usually hearing a dying person's will as to the disposition of his goods and chattel when he made his last confession. so the church court came to determine the validity of wills, interpret them, regulate their created testamentary executors, and determine the legatees. it also came to determine intestate matters. it provided guardianship of infants during probate of their personal property. trial was first by compurgation, with oath-helpers swearing to or against the veracity of the alleged offender's oath. the ecclesiastical court's penalties were intended to reform and determined on a case-by-case basis. the canon law of christendom was followed, without much change by the english church or nation. a penitent who was sincerely contrite was first expected to confess his sin to a priest, who gave him god's forgiveness. this removed the guilt of the sin and eternal punishment in hell. but then justice required a "satisfaction", which could be met in this world or in the next. accordingly, the priest or ecclesiastical court then imposed a "penance", i.e. some act of a religious nature. penance could include confession and public repentance of the sin before the parish, making apologies and reparation to persons affected, public embarrassment such as being dunked in water (e.g. for women scolds), walking a route barefoot and clad only in one's underwear, whippings, extra work, fasting, vigils, prayers for help to live righteously, reading, meditation, solitary life, a diet of bread and water for a specified time, fines, gifts to the church, alms to the poor, various kinds of good deeds, and imprisonment in a "penitentiary". for more serious sins, there could be a long fast, a diet of bread and water for a number of years, or a distant pilgrimage, for instance to rome or jerusalem. for those whose penance was incomplete at the time of their death, there was a temporary state of purgatory wherein some sort of suffering fulflled the remaining debt. souls in purgatory could be aided by the prayers of the faithful on earth. the truly penitent could hope for the remission of all or part of their purgation by obtaining an indulgence from a higher authority than the priest. the ultimate penalty of the church was excommunication, a social ostracism in which no one could give the person drink, food, or shelter and he could speak only to his spouse and servants. excommunication included denial of the sacraments of baptism, penance, mass [lord's supper}, and extreme unction [prayers for spiritual healing] at death; which were necessary for salvation of the soul; and the sacrament of confirmation. a person could also be denied a christian burial in consecrated ground. however, the person could still marry and make a will. the purpose of excommunication was to restore the person to spiritual health rather than to punish him. excommunication was usually imposed for failure to obey an order or for showing contempt of the law or of the courts. it required a hearing and a written reason. the king's court could order a recalcitrant excommunicant imprisoned until he satisfied the claims of the church. if this measure failed, it was possible to turn the offender over to the state for punishment, e.g. for blasphemy or heresy. blasphemy was thought to cause god's wrath expressed in famine, pestilence, and earthquake and was usually punished by a fine or corporal punishment, e.g. perforation or amputation of the tongue. it was tacitly understood that the punishment for heresy was death by burning. there were no heresy cases up to and few after that. the state usually assured itself the sentence was just before imposing it. the court of the rural dean was the ecclesiastical parallel of the hundred court of secular jurisdiction and usually had the same land boundaries. the archdeacons, who had been ministers of the bishop in all parts of his diocese alike, were now each assigned to one district, which usually had the same boundaries as the county. each bishop headed a diocese. over the bishops were the two archbishops of canterbury and of york. the ecclesiastical court had one judge and no jury. most cases dealt with offenses against the church, such as working on sunday, and sexual mores. the court used teatimony and depositions of witnesses, oaths of the parties, confessions, physical and written evidence, presumptions of common knowledge, and inquests of impartial, sworn men who made unanimous determinations. the accuser had to meet the burden of proof. the accused could be required to answer questions under oath, thus giving evidence against himself. it was not necessary to have an accuser; a judge could open a case based on public rumor. the judge made a written decision that did not incude his reasoning. he read the decision aloud in a public session of the court. if an accused disobeyed a court order to appear or to do penance, he could be excommunicated. common law held that ecclesiastical courts could not give money damages. but costs were paid by the loser and included expenses of producing witnesses, writing of documents, and fees of lawyers. an appeal could be made from the archdeacon to the bishop to the metropolitan to the pope. henry acknowledged occasional appellate authority of the pope, but expected his clergy to elect bishops of his choice. there was a separate judicial system for the laws of the forest. there were itinerant justices of the forests and four verderers of each forest county, who were elected by the votes of the full county court, twelve knights appointed to keep vert [everything bearing green leaves] and venison, and foresters of the king and of the lords who had lands within the limits of the forests. every three years, the officers visited the forests in preparation for the courts of the forest held by the itinerant justices. the inferior courts were the woodmote, held every forty days, and the swein [freeman or freeholder within the forest] mote, held three times yearly before the verderers as justices, in which all who were obliged to attend as suitors of the county court to serve on juries and inquests were to be present. in this lawsuit, king henry i decided that since the abbots and monks of battle had proved before him that certain lands, belonging to the manor of alciston, are no possession of theirs, so they are to be quit of the services due there: " henry, king of the english, to ralph, bishop of chichester, and all his ministers of sussex, greeting. know that as the abbot of battle and the monks deraigned [proved] before me that they do not have those lands which you said they had, namely, ovington, coding ( in hove), batsford (in warbleton), daningawurde, shuyswell ( in etchingham), boarzell ( in ticehurst), winenham, wertesce, brembreshoc and seuredeswelle, which of old belonged to alciston and contain seven hides of land of the fifty hides in alciston and its appurtenances, i order that they shall be free and quit on this account and that none shall molest them any further, but concerning these lands and these hides they shall be completely free and quit as concerning lands which they do not have and of which they are not seised. i also order by royal authority that their manor called alciston, which my father gave to the church of battle with other lands for his soul, shall be so free and quit of shires and hundreds and all customs of land-service as my father himself held it most freely and quietly, and namely concerning the work on london bridge and on the castle of pevensey. this i command upon my forfeiture. witness: william de pont de l'arche. at westbourne. in this lawsuit, king henry i ordered a bishop and sheriff to put another bishop in possession of certain churches according to the verdict of twelve men: " henry, by god's grace, etc. to h(erbert), bishop of norwich, and robert the sheriff, greeting. i order that you let richard, bishop of london, have the churches of blythburgh and stowe with all the customs that belong to them as twelve among the better men of the hundred will be able to swear and as i ordered in my other writ. and let this not be left undone because of my voyage to normandy, and let him hold them in peace and honour with suit, soke, toll and team and infangthief and with all other customs, as ever any of my predecessors most honourably and most quietly held them. witness, etc." in this lawsuit, king henry i grants that an abbot should continue to have his mint after his moneyer suffered punishment like all the others in england: "henry, king of the english, to everard bishop of norwich, robert fitz walter and all his barons and lieges, french and english, of suffolk, greeting. i grant that, justice having been done to his moneyer as was done to the other moneyers of england, the abbot of st. edmunds shall have in the vill of st. edmunds his mint, moneyer and exchange as he used to have it before. witnesses: (john), bishop of lisieux, (bernard), bishop of st. david's and robert de sigillo, at rouen." in this lawsuit, king henry i held proven the ownership of certain wood and land: "henry, king of the english, to the bishop of lincoln and the sheriff and the barons and faithful, french and english, of bedfordshire, greeting. know that abbot reginald of ramsey has deraigned in my court to the advantage of the church of ramsey the wood of crawley and the land pertaining to it against simon de beauchamp, about which they were in dispute, and the aforesaid abbot gave to simon marks of silver and two palfreys [riding horses] so that simon granted them to him out of goodwill and gave up his claim. and i will and firmly order that the aforesaid church of ramsey shall hold that wood and the aforesaid land belonging to the wood well and in peace, honourably and by perpetual right. witnesses: bishop roger of salisbury and bishop alexander of lincoln, king david of scotland, geoffrey the chancellor, earl robert of leicester, adam de port, hugh bigod, william d'aubigny the butler, geoffrey de clinton, william of d'aubigny brito." chapter the times: - king henry ii and queen eleanor, who was twelve years older, were both intelligent, educated, energetic, well-traveled, and experienced in affairs of state. henry was the first norman king to be fully literate and he learned latin. he had many books and maintained a school. eleanor often served as regent during henry's reign and the reigns of their two sons: richard i, the lion- hearted, and john. she herself headed armies. henry ii was a modest, courteous, and patient man with an astonishing memory and strong personality. he was indifferent to rank and impatient of pomp to the point of being careless about his appearance. he usually dressed in riding clothes and was often unkempt. he was thrifty, but generous to the poor. he was an outstanding legislator and administrator. henry ii took the same coronation oath as edward the confessor regarding the church, laws, and justice. not only did he confirm the charter of his grandfather henry i, but he revived and augmented the laws and institutions of his grandfather and developed them to a new perfection. almost all legal and fiscal institutions appear in their first effective form during his reign. for instance, he institutionalized the assize for a specific function in judicial proceedings, whereas before it had been an ad hoc body used for various purposes. the term "assize" here means the sitting of a court or council. it came to denote the decisions, enactments, or instructions made at such. henry's government practiced a strict economy and he never exploited the growing wealth of the nation. he abhorred bloodshed and the sacrifice of men's lives. so he strove diligently to keep the peace, when possible by gifts of money, but otherwise with armed force. robbers were hanged and any man who raped a woman was castrated. foreign merchants with precious goods could journey safely through the land from fair to fair. these fairs were usually held in the early fall, after harvesting and sheep shearing. foreign merchants bought wool cloth and hides. frankpledge was revived, now applying to the unfree and villeins. no stranger could stay overnight (except for one night in a borough), unless sureties were given for his good behavior. a list of such strangers was to be given to itinerant justices. henry had character and the foresight to build up a centralized system of government that would survive him. he learned about the counties' and villages' varying laws and customs. then, using the model of roman law, he gave to english institutions that unity and system which in their casual patchwork development had been lacking. henry's government and courts forged permanent direct links between the king and his subjects which cut through the feudal structure of lords and vassals. he developed the methods and structure of government so that there was a great increase in the scope of administrative activity without a concurrent increase of personal power of the officials who discharged it. the government was self-regulating, with methods of accounting and control which meant that no official, however exalted, could entirely escape the surveillance of his colleagues and the king. at the same time, administrative and judicial procedures were perfected so that much which had previously required the king's personal attention was reduced to routine. the royal household translated the royal will into action. in the early s, there had been very little machinery of central government that was not closely associated with the royal household. there was a chief justiciar for legal matters and a treasurer. royal government was largely built upon what had once been purely domestic offices. kings had called upon their chaplains to pen letters for them. by henry ii's reign, the chancery was a highly efficient writing office through which the king's will was expressed in a flow of writs, and the chancellor an important and highly rewarded official, but he was still responsible for organizing the services in the royal chapel. similarly, the chamberlains ran the household's financial departments. they arranged to have money brought in from a convenient castle treasury, collected money from sheriffs or the king's debtors, arranged loans with the usurers, and supervised the spending of it. it was spent for daily domestic needs, the king's almsgiving, and the mounting of a military campaign. but they were still responsible for personal attendance upon the king in his privy chamber, taking care of his valuable furs, jewels, and documents, and changing his bed linens. there were four other departments of the household. the steward presided over the hall and kitchens and was responsible for supplying the household and guests with food supplies. the butler had duties in the hall and cellars and was responsible for the supply of wine and ale. the marshall arranged lodgings for the king's court as it moved about from palaces to hunting lodges, arranged the pay of the household servants, and supervised the work of ushers, watchmen, fire tenders, messengers and huntsmen. the constable organized the bodyguard and escorts, arranged for the supply of castles, and mustered the royal army. the offices of steward, constable, chamberlain, butler were becoming confined to the household and hereditary. the justiciar, chancellor, and treasurer are becoming purely state offices. they were simply sold or rented, until public pressure resulted in a requirement of ability. henry's council included all his tenants-in-chief, which included archbishops, bishops, abbots, priors, earls, barons, knights and socage tenants of the crown, whether they made payments directly to him or through a sheriff. the higher ones were served with a writ addressed to them personally. knights and below were summoned by a general writ to the sheriff. henry brought order and unity by making the king's royal court the common court of the land. its purpose was to guard the king's peace by protecting all people of free status throughout the nation and correct the disparity in punishments given by local courts. the doctrine of felony developed, with punishment by death relacing the old wites. heretofore, the scope of the king's peace had varied to cover as little as the king's presence, his land, and his highway. the royal demesne had shrunk to about % of the land. the common law for all the nation was established by example of the king's royal court. henry erected a basic, rational framework for legal processes which drew from tradition but lent itself to continuous expansion and adaptation. a system of writs originated well-defined actions in the royal courts. each court writ had to satisfy specific conditions for this court to have jurisdiction over an action or event. this system determined the royal court's jurisdiction over the church, lords, and sheriffs. it limited the jurisdiction of all other courts and subordinated them to the royal court. inquests into any misdeeds of sheriffs were held, which could result in their dismissal. henry and eleanor spoke many languages and liked discussing law, philosophy, and history. so they gathered wise and learned men about them, who became known as courtiers, rather than people of social rank. they lived in the great and strong tower of london, which had been extended beyond the original white tower, as had other castles, so that the whole castle and grounds were defended instead of just the main building. the tower of london was in the custody of one of the two justiciars. on the west were two strongly fortified castles surrounded by a high and deeply entrenched wall, which had seven double gates. towers were spaced along the north wall and the thames river flowed below the south wall. to the west was the city, where royal friends had residences with adjoining gardens near the royal palace at westminster. the court was a center of culture as well as of government. the game of backgammon was played. people wore belts with buckles, usually brass, instead of knotting their belts. london extended about a mile along the thames and about half a mile inland. it had narrow twisting lanes, some with a ditch down the middle for water runoff. most of its houses were two stories, the ground floor having booths and workshops, and the upper floor living space. most of the houses were wooden structures. the richer merchants' and knights' houses were built of stone. walls between houses had to be stone to a height of feet and thatched roofs were banned because there had been many fires. there was poor compliance, but some roofs were tiled with red brick tiles. the population was about , . there were over churches for public worship, thirteen monasteries (including nunneries), and st. paul's cathedral. all were built of stone. the churches gave a place of worship for every inhabitants and celebrated feast days, gave alms and hospitality to strangers, confirmed betrothals or agreements of marriage, celebrated weddings, conducted funerals, and buried the dead. the synod of westminster of prescribed that all marriages were to be performed by the church. a bare exchange of words was sufficient to constitute a marriage. church law required a warning prior to suspension or excommunication. monastic, cathedral, and parish schools taught young boys grammar so they could sing and read in church services. nuns taught girls. fish but no meat was eaten on fridays. there was dark rye bread and expensive white wheat bread. vegetables included onions, leeks, and cabbage. fruits included apples, pears, plums, cherries, and strawberries. water was obtained from streams running through the town to the thames and from springs. only the rich, palaces, and churches could afford beeswax candles; others had homemade tallow [cow or sheep fat] candles which smelled and gave off smoke. most people washed their bodies. even the poor had beds and bed clothes. the beds were often shared. few babies survived childhood. if a man reached , he could expect to live until age . thousands of londoners died during a hot summer from fevers, plague and the like. in london, bells heralded the start and finish of all organized business. the sellers of merchandise and hirers of labor were distributed every morning into their several localities according to their trade. vendors, craftsmen, and laborers had their customary places. some vendors walked the streets announcing their wares for sale. there were craft guilds of bakers, butchers, cloth workers, and saddlers, as well as of weavers. vendors on the thames river bank sold cooked fish caught from the river and wine from ships and wine cellars. cook shops sold roasted meats covered with hotly spiced sauces. london bridge was built of stone for the first time. it was supported by a series of stone arches standing on small man-made islands. it had such a width that a row of wood houses and a chapel was built on top of it. in the spring it was impassable by ships because the flow of water under it varied in height on either side of the bridge by several feet at half tide. the bridge had the effect of slowing down the flow upstream, which invited wherries and rowboats and stately barges of the nobility. in winters in which it froze over, there was ice skating, ice boating, and fishing through holes in the ice. outside each city gate were clusters of ragged buildings, small monasteries and hostelries, groups of huntsmen's kennels, and fencing schools. outside one of the gates, a horse market was held every week. horses wore horseshoes made of iron or of a crude steel. from the southwest gate of the city along the north river bank toward westminster, there was a gradually extending line of rich men's mansions and bishops' palaces. on the southern bank of the thames river was growing the disorderly suburb of southwark, with fishermen's and boatmens' hovels, and taverns and brothels that were frequented by drunkards, rakes, and whores. on the north side of the city was a great forest with fields and wells where students and other young men from the city took walks in the fresh evening air. in some fields, country folk sold pigs, cows, oxen and sheep. mill wheels turned at various streams. near london in the country was a glass factory. at sunset, the gates of london were closed for the night. all taverns had to be closed, all lights put out, and all fires banked or covered when the bell of the church of st. martin le grand rang at : p.m. anyone found on the streets after this curfew could be arrested. gangs of young nobles or gangs of thieves, cutpurses, and looters roamed the streets after dark and sometimes rioted. offenders were often beheaded and their heads placed on spikes on london bridge. men in london had begun weaving cloth, which formerly had been done by women. some of the cloth was exported. the weavers guild of london received a charter by the king in , the first granted to any london craft: "know that i have conceded to the weavers of london to hold their guild in london with all the liberties and customs which they had in the time of king henry [i], my grandfather; and that none may intermeddle with the craft within the city, nor in southwark, nor in other places pertaining to london except through them and except he be in their guild, otherwise than was accustomed to be done in the time of king henry, my grandfather ...so that each year they render thence to me two marks of gold at the feast of st. michael. and i forbid that any shall do injury or contumely to them on this account under penalty of pounds [ s.]. witness t[homas], chancellor, and warinus, son of gerard, chamberlain, at winchester." the liberties obtained were: ) the weavers may elect bailiffs to supervise the work of the craft, to punish defaulters, and to collect the ferm [amount owed to the king]. the bailiffs were chosen from year to year and swore before the mayor of london to do and keep their office well and truly. ) the bailiffs may hold court from week to week on pleas of debt, agreements, covenants [promises for certain performance], and minor trespasses. ) if any of the guild members are sued in any other court on any of the above pleas, the guild may challenge that plea to bring it to the guild court. ) if any member is behind in his share of the payment to the king, the bailiffs may distrain his loom until he has paid this. the weavers' guild punished members who used bad thread in their weaving or did defective weaving by showing the default to the mayor, with opportunity for the workman to make entreaty, and the mayor and twelve members of the guild then made a verdict of amercement of / mark and the workman of the cloth was also punished by the guild bailiffs according to guild custom.the weavers' guild tradition of brotherliness among members meant that injury to a fellow weaver incurred a severe penalty. if a weaver stole or eloigned [removed them to a distance where they were unreachable] any other weaver's goods falsely and maliciously, then he was dismissed from the guild and his loom was taken by the guild to fulfill his portion of the annual payment to the king. the weavers were allowed to buy and to sell in london freely and quietly. they had all the rights of other freemen of the city. paying an annual payment freed the weavers from liability to inconsequent royal fines. failure to make this payment promptly might have led to loss of the right, hence the rigorous penalty of distraint upon the looms of individual weavers who fell into arrears. thus from the middle of the s, the weavers enjoyed the monopoly of their craft, rights of supervision which ensured a high standard of workmanship, power to punish infractions of their privileges, and full control of their members. in this they stand as the prototype of english medieval guilds. these rights represented the standard which all bodies of craftsmen desired to attain. the right of independent jurisdiction was exceptional. in henry ii's charter to london, london did not retain its right to appoint its own sheriff and justice given by henry i. london's chief magistrate was the mayor, who was appointed by the king, until . then the mayor was elected yearly by the aldermen of the city wards and approved by the king. he was typically a rich prince chosen by the barons and chief merchants of london. the commoners had no voice in his selection, but they could still approve or disapprove of the actions of the city government at ward and folk motes. at certain periods, a king asserted royal power over the selection of mayor and governance of the city. there were three ways to become a citizen of london: being the son of a citizen, apprenticeship in a craft for seven years, and purchase of citizenship. london and westminster growth led to their replacing winchester as the capital. st. barthomew infirmary was established in london for the care of sick pilgrims traveling to the shrine of becket in canterbury. it had been inspired by a monk who saw a vision of st. barthomew telling him to build a church and an infirmary. trading was facilitated by the stabilization of the amount of silver metallic content of the english coinage, which was called "sterling" [strong] silver. the compass, a magnetic lodestone [leading stone] needle mounted on a cork and floated in a bowl of water, assisted the navigation of ships. with it, one could tell the general direction of a ship when the skies were cloudy as well as clear. and one could generally track one's route by using the direction and speed of travel to calculate one's new position. london became a major trading center for foreign goods from many lands. about % of the knights were literate. wealthy men sent their sons to school in monasteries to prepare them for a livelihood in a profession or in trade or to the town of oxford, whose individual scholars had migrated from paris and had attracted disciples for a long time. these schools grew up around st. mary's church, but had not been started by the church as there was no cathedral school in oxford. oxford had started as a burh and had a royal residence and many tradesmen. it was given its basic charter in by the king. this confirmed to it all the customs, laws and liberties [rights] as those enjoyed by london. it became a model charter for other towns. bachelors at oxford studied the arts of grammar, rhetoric, and logic, and then music, arithmetic, geometry, and astronomy, until they mastered their discipline and therefore were authorized to teach it. teaching would then provide an income sufficient to support a wife. the master of arts was analogous to the master craftsman of a guild. from , the civil law was studied, and shortly thereafter, canon law. later came the study of medicine. the use of paper supplemented the use of parchment for writing. irregular edged paper was made from linen, cotton, straw, and/or wood beaten to a pulp and then spread out over a wire mesh to dry. theologicians taught that the universe was made for the sake and service of man, so man was placed at the center of the universe. man was made for the sake and service of god. every freeman holding land of a lord gave homage and fealty to him, swearing to bear him faith of the tenement held and to preserve his earthly honor in all things, saving the faith owed to the king. homage was done for lands, for free tenements [including meadows, pastures, woods, and wastes], for services, and for rents precisely fixed in money or in kind. homage could be done to any free person, male or female, adult or minor, cleric or layman. a man could do several homages to different lords for different fees, but there had to be a chief homage to that lord of whom he held his chief tenement. homage was not due for dower, from the husband of a woman to whom a tenement was given as a marriage portion, for a fee given in free alms, or until the third heir, either for free maritagium [a marriage portion of land which is given with a daughter in marriage, that is not bound to service and passes to the daughter's heirs in whatever way had been stipulated by her family when the grant was made] or for the fee of younger sisters holding of the eldest. all fiefs to be inherited by the eldest son had to be intact. every lord could exact fealty from his servants. in this era, the english national race and character was formed. only a few barons still had lands in normandy. stories of good king arthur were popular and set ideals for behavior and justice in an otherwise barbaric age where force was supreme. his last battle in which he lay wounded and told a kinsman to rule in his place and uphold his laws was written in poem ("layamon's brut"). romantic stories were written and read in english. the custom of "bundling" was started by ladies with their knights, who would lie together in bed without undressing and with one in a sack the top of which was tied around his neck, as part of a romantic courtship. wealthy men often gave their daughters dowries in case they were widowed. this might be matched by a marriage settlement by a prospective husband. intermarriage had destroyed any distinction of normans by look or speech alone, except for the anglo-saxon manor villeins, who worked the farm land and composed about two-thirds of the population. villeins were bound to the land and could, on flight, be brought back to it. they could not give homage, but could give fealty. a villein had the equipment to farm, fish, make cheese, keep poultry, brew beer, hedge, and cut wood. although the villeins could not buy their freedom or be freed by their lord, they became less numerous because of the preference of landholders for tenants motivated to perform work by potential loss of tenure. also, the crown's protection of all its subjects in criminal matters blurred the distinction between free and unfree men. the boroughs were dominated by lords of local manors, who usually had a house in the borough. similarly, burgesses usually had farmland outside the borough. many boroughs were granted, by the king or manor lord, the right to have a common seal for the common business of the town. some boroughs were given the authority to confer freedom on the villein by enrolling him in their guild or allowing him to stay in the borough for a year and a day. the guilds met frequently in their drinking halls and drew up regulations for the management of their trade. each borough was represented by twelve reputable burgesses. each vill was represented by a reeve and four reputable men. certain towns sponsored great seasonal fairs for special goods, such as cloth. about % of the population lived in towns. in the early s, the horizontal-axle windmill was invented, probably in eastern england, on the analogy of the horizontal-axle watermill. it was very useful in flat areas where streams were too slow for a watermill unless a dam were built. but a dam often flooded agricultural land. some watermill wheels were moved by tidal currents. london guilds of craftsmen such as weavers, fullers, bakers, loriners (makers of bits, spurs, and metal mountings of bridles and saddles), cordwainers (makers of leather goods such as shoes), pepperers, and goldsmiths were licensed by the king, for which they paid him a yearly fee. there were also five bridge guilds (probably raising money for the future construction of london bridge in stone) and st. lazarus' guild. the wealthy guilds, which included the goldsmiths, the pepperers, and three bridge guilds had landholding members who had been thegns or knights and now became a class of royal officials: the king's minters, his chamberlain, his takers of wines, his collectors of taxes. the weavers of oxford paid s. [two marks] to have a guild. the shoemakers paid s. [five marks]. in , master carpenters, masons, and tilers made d. per day, their servers (the journeymen of a later time) made / d., free stone carvers / d., plasterers and daubers, diggers and sievers less. all received food in addition or / d. in its stead. sandwich was confirmed in its port rights by this charter: "henry ii to his sheriff and bailiffs of kent, greeting. i will and order that the monks of the holy trinity of canterbury shall have fully all those liberties and customs in sandwich which they had in the time of king henry my grandfather, as it was adjudged in pursuance of his command by the oath of twelve men of dover and twelve men of sandwich, to wit, that the aforesaid monks ought to have the port and the toll and all maritime customs in the same port, on either side of the water from eadburge gate as far as markesfliete and a ferryboat for passage. and no man has there any right except they and their ministers. wherefore i will and firmly command you and the men of sandwich that ye cause the aforesaid monks to have all their customs both in the port and in the town of sandwich, and i forbid any from vexing them on this account.and they shall have my firm peace." henry gave this charter to the town of bristol in : "know ye, that i have granted to my burgesses of bristol, that they shall be quit both of toll [a reasonable sum of money or portion of the thing sold, due to the owner of the fair or market on the sale of things tollable therein. it was claimed by the lord of the fee where the fair or market was held, by virtue of a grant from the crown either ostensible or presumed] and passage [money paid for crossing a river or for crossing the sea as might be due to the crown] and all custom [customary payments] throughout my whole land of england, normandy, and wales, wherever they shall come, they and their goods. wherefore i will and strictly command, that they shall have all their liberties and acquittances and free customs fully and honorable, as my free and faithful men, and that they shall be quit of toll and passage and of every other customs: and i forbid any one to disturb them on this account contrary to this my charter, on forfeiture of ten pounds [ s.]." john, when he was an earl and before he became king, granted these liberties to bristol about : ) -no burgess may sue or be sued out of bristol. ) -the burgesses are excused from the murdrum fine. ) -no burgess may wage duel [trial by combat], unless sued for death of a stranger. ) -no one may take possession of a lodging house by assignment or by livery of the marshall of the earl of gloucester against the will of the burgesses (so that the town would not be responsible for the good behavior of a stranger lodging in the town without first accepting the possessor of the lodging house). ) -no one shall be condemned in a matter of money, unless -according to the law of the hundred, that is, forfeiture of s. ) -the hundred court shall be held only once a week. ) -no one in any plea may argue his cause in miskenning. ) -they may lawfully have their lands and tenures and mortgages and debts throughout my whole land, [from] whoever owes them [anything]. ) -with regard to debts which have been lent in bristol, and mortgages there made, pleas shall be held in the town according to the custom of the town. ) if any one in any other place in my land shall take toll of the men of bristol, if he does not restore it after he is required to, the prepositor of bristol may take from him a distress at - - bristol, and force him to restore it. ) no stranger tradesman may buy within the town from a man who is a stranger, leather, grain, or wool, but only from a burgess. ) no stranger may have a shop, including one for selling wine, unless in a ship, nor shall sell cloth for cutting except at the fair. ) no stranger may remain in the town with his goods for the purpose of selling his goods, but for forty days. ) no burgess may be confined or distrained any where else within my land or power for any debt, unless he is a debtor or surety (to avoid a person owed a debt from distraining another person of the town of the debtor). ) they shall be able to marry themselves, their sons, their daughters and their widows, without the license of their lords. (a lord had the right of preventing his tenants and their families from marrying without his consent.) ) no one of their lords shall have the wardship or the disposal of their sons or daughters on account of their lands out of the town, but only the wardship of their tenements which belong to their own fee, until they become of age. ) there shall be no recognition [acknowledgment that something done by another person in one's name had one's authority] in the town. ) no one shall take tyne [wooden barrel with a certain quantity of ale, payable by the townsmen to the constable for the use of the castle] unless for the use of the lord earl, and that according to the custom of the town. ) they may grind their grain wherever they may choose. ) they may have their reasonable guilds, as well or better than they had them in the time of robert and his son william [john's wife's grandfather and father, who were earls of gloucester when the town and castle of bristol were part of the honor of gloucester]. ) no burgess may be compelled to bail any man, unless he himself chooses it, although he may be dwelling on his land. we have also granted to them all their tenures, messuages [dwelling house with adjoining land and adjacent buildings], in copses [thicket from which wood was cut], in buildings on the water or elsewhere to be held in free burgage [tenant to pay only certain fixed services or payments to his lord, but not military service (like free socage)]. we have granted also that any of them may make improvements as much as he can in erecting buildings anywhere on the bank and elsewhere, as long as the borough and town are not damaged thereby. also, they shall have and possess all waste land and void grounds and places, to be built on at their pleasure. newcastle-on-tyne's taxes were simplified in as follows: "know ye that i have granted and by this present charter have confirmed to my burgesses of newcastle upon tyne, and to all their things which they can assure to be their own, acquittance from toll and passage and pontage and from the hanse and from all other customs throughout all my land. and i prohibit all persons from vexing or disturbing them therein upon forfeiture to me." we grant to our upright men on newcastle-on-tyne and their heirs our town of newcastle-on-tyne with all its appurtenances at fee farm for pounds to be rendered yearly to us and our heirs at our exchequer by their own hand at the two terms, to wit, at easter pounds and at michaelmas pounds, saving to us our rents and prizes and assizes in the port of the same town. ranulph, earl of chester, made grants to his burgesses of coventry by this charter: "that the aforesaid burgesses and their heirs may well and honorably quietly and in free burgage hold of me and my heirs as ever in the time of my father and others of my ancestors they have held better more firmly and freer. in the second place i grant to them all the free and good laws which the burgesses of lincoln have better and freer. i prohibit and forbid my constables to draw them into the castle to plead for any cause, but they may freely have their portimote [leet court] in which all pleas belonging to me and them may be justly treated of. moreover they may choose from themselves one to act for me whom i approve, who a justice under me and over them may know the laws and customs, and keep them to my counsel in all things reasonable, every excuse put away, and may faithfully perform to me my rights. if any one happen to fall into my amercement he may be reasonably fined by my bailiff and the faithful burgesses of the court. furthermore, whatever merchants they have brought with them for the improvement of the town, i command that they have peace, and that none do them injury or unjustly send them into court. but if any foreign merchant shall have done anything improper in the town that same may be regulated in the portimote before the aforesaid justice without a suit at law." henry confirmed this charter of the earl's by as follows: i have confirmed all the liberties and free customs the earl of chester granted to them, namely, that the same burgesses may well and honorably hold in free burgage, as ever in the time of the father of the beforesaid earl, or other of his ancestors, they may have better or more firmly held; and they may have all the laws and customs which the citizens of lincoln have better and freer (e.g. their merchant guilds); all men brought to trade may be subject to the guild customs and assize of the town; those who lawfully hold land in the town for a year and a day without question and are able to prove that an accuser has been in the kingdom within the year without finding fault with them, from thence may hold the land well and in peace without pleading; those who have remained in the town a year and a day without question, and have submitted to the customs of the town and the citizens of the town are able to show through the laws and customs of the town that the accuser stood forth in the kingdom, and not a fault is found of them, then they may remain in peace in the town without question]; and that the constable of the aforesaid earl shall not bring them into the castle to plead in any case. but they may freely have their own portmanmote in which all pleas appertaining to the earl and to them may be justly treated of. moreover they may choose one from themselves to act for the earl, whom i approve, who may be a justice under the earl and over them, and who to the earl may faithfully perform his rights, and if anyone happen to fall into the earl's forfeiture he shall be acquit for pence. if by the testimony of his neighbors he cannot pay pence coins, by their advice it shall be so settled as he is able to pay, and besides, with other acquittances, that the burgesses shall not provide anything in corody [allowance in food] or otherwise whether for the said earl or his men, unless upon condition that their chattels shall be safe, and so rendered to them. furthermore, whatever merchants they have brought with them for the improvement of the town they may have peace, and none shall do them injury or unjustly send them into suit at law. but if any foreign merchant has done anything improper in the town that shall be amended [or tried] in the portmanmote before the aforesaid justice without a suit. and they who may be newcomers into the town, from the day on which they began to build in the town for the space of two years shall be acquit of all charges. mercantile privileges were granted to the shoemakers in oxford thus: "know ye that i have granted and confirmed to the corvesars of oxford all the liberties and customs which they had in the time of king henry my grandfather, and that they have their guild, so that none carry on their trade in the town of oxford, except he be of that guild. i grant also that the cordwainers who afterwards may come into the town of oxford shall be of the same guild and shall have the same liberties and customs which the corvesars have and ought to have. for this grant and confirmation, however, the corvesars and cordwainers ought to pay me every year an ounce of gold." a guild merchant for wool dominated and regulated the wool trade in many boroughs. in leicester, only guildsmen were permitted to buy and sell wool wholesale to whom they pleased or to wash their fells in borough waters. certain properties, such as those near running water, essential to the manufacture of wool were maintained for the use of guild members. the waterwheel was a technological advance replacing human labor whereby the cloth was fulled. the waterwheel turned a shaft which lifted hammers to pound the wet cloth in a trough. wool packers and washers could work only for guild members. the guild fixed wages, for instance to wool wrappers and flock pullers. strangers who brought wool to the town for sale could sell only to guild members. a guildsman could not sell wool retail to strangers nor go into partnership with a man outside the guild. each guild member had to swear the guildsman's oath, pay an entrance fee, and subject himself to the judgment of the guild in the guild court, which could fine or suspend a man from practicing his trade for a year. the advantages of guild membership extended beyond profit in the wool trade. members were free from the tolls that strangers paid. they alone were free to sell certain goods retail. they had the right to share in any bargain made in the presence of a guildsman, whether the transaction took place in leicester or in a distant market. in the general interest, the guild forbade the use of false weights and measures and the production of shoddy goods. it maintained a wool beam for weighing wool. it also forbade middlemen from profiting at the expense of the public. for instance, butchers' wives were forbidden from buying meat to sell again in the same market unless they cooked it. the moneys due to the king from the guilds of a town were collected by the town reeve. when the king wanted to raise an army, he summoned his major baron tenants-in-chief, who commanded their own armed dependent vassals, and he directed the sheriffs to command the minor tenants-in-chief and supply them with equipment. a baron could assemble an army in a day, but might use it to resist any perceived misgovernment by a king. armed conflict did not interfere much with daily life because the national wealth was still composed mostly of flocks and herds and simple buildings. machinery, furniture, and the stock of shops were still sparse. life would be back to normal within a week. henry wanted to check this power of the barons. so he took over or demolished their adulterine castles and restored the fyrd, which was a military draft of every freeman to serve in defense of the realm. at the king's call, barons were to appear in mail suit and helmet with sword and horse, knights and freeholders with s.[ marks] of rent or chattels in coat of mail with shield and lance, freeholders of s.[ marks] with lance and hauberk [coat of armor] and iron headpiece, burgesses and poorer freemen with lance and headpiece and wambais, and such as millers with pike and leather shirt. the spiritual and other baronies paid a commutation for personal service, called "scutage", at the rate of s. per knight's fee. barons and knights paid according to their knight's fee a scutage ranging from s. to s. as of , the military obligations of villeins were defined. the master of a household was responsible for every villein in his household. others had to form groups of ten and swear obedience to the chief of the group. the sheriff was responsible for maintaining lists of men liable for military service and procuring supplies. this national militia could be used to maintain the peace. the sheriff could call upon the military array of the county as a "posse comitatus" to take a band of thieves into custody or to quell disorder. for foreign wars, henry decided to use a mercenary army and a mercenary fleet. however, the nobility who were on the borders of the realm had to maintain their private armies for frequent border clashes. the other nobility now tended towards tournaments with mock foot battles between two sides. although subject to knightly rules, serious injury and death often resulted. for this reason, the church opposed them, but unsuccessfully. new taxes replaced the danegeld tax. freeholders of land paid taxes according to their ploughable land ("hidage", by the hide, and later "carucage", by the smaller norman carucate). the smaller measure curtailed estates and increased taxation. it was assessed from - s. per carcuate [ acres] and collected for the king by knights with little or no remuneration, and later by inquest of neighbors. the towns and demesne lands of the crown paid a tax based on their produce that was collected by the itinerant justices. merchants were taxed on their personal property, which was determined by an inquest of neighbors. clergy were also taxed. this new system of taxation increased the royal income about threefold. there was a standard for reliefs paid of s. [ pounds] for a knight's fee and , s. [ pounds] for a barony. at the end of henry's reign, his treasure was over , pounds. every hide of land paid the sheriff s. annually for his services in the administration and defense of the county. barons and their tenants and subtenants were offered an alternative of paying shield money ["scutage"] of s. d. per fee in commutation for and instead of military service for their fiefs. this enabled henry to hire soldiers who would be more directly under his own control and to organize a more efficient army. henry ii restored the silver coinage to its standard of purity. the first great inflation in england occurred between and . most goods and services increased threefold over these forty years. great households, whether of baron, prelate, monastery, or college gave their officers and servants allowances of provisions and clothing called "liveries". the officer of such departments as the buttery [cellar storing butts of wine], the kitchen, the napery [for linen cloth], and the chandlery had his fixed allowances for every day and his livery of clothing at fixed times of the year or intervals of years. the administration of a great estate is indicated by the pipe roll of the bishopric of winchester, - , as follows: "downton: william fitzgilbert, and joselyn the reeve, and aylward the cellarer render account of pounds s. d. for arrears of the previous year. they paid and are quit. and of pounds s. d. for landgafol. and of d. by increment of tax for a park which william of witherington held for nothing. and of s. d. by increment of tax for half a virgate of land which james oisel held without service. and of s. for assize pleas in the new market. and of s. by increment of tax for other assize pleas in the market this year. sum of the whole tax pounds s. d. in quittance of one reeve, s. in quittance for repairing the bridge, s.; of one forester, s.; of two haywards from downton and wick, s.; of one hayward from witherington, d.; of fourteen drivers from downton, wick, and nunton, for the year, s.; of two drivers from witherington for the year, s. d.; of two drivers for half the year, s.; of one swineherd, of one neaterd, of one cowherd, for the year, s.; of three shepherds from wick, barford, and nunton, for the year, s.; of one shepherd from witherington, for the year, d.; of four customary tenants, for the year, s. sum of the quittances, s. d. remainder pounds. livery: for livery to john the dean, for christmas tax, pounds s. by one tally. to the same for easter tax, pounds by one tally. to the same for st. john's tax, pounds by one tally. to the same for st. michael's tax, pounds s. by one tally. to the same for corn [grain] sold in the field pounds by two tallies. to the same for standing corn [growing crops of grain], purchases, and cheeses, pounds s. d. to the same for wool, pounds s. d. by one tally. to the same for tallage pounds by one tally. sum: pounds s. d. expenses: for ironwork of carts for year and one cart for half the year, s. d. for shoeing of plough horses for the year, s. d. for wheels for carts, s. d. for carts made over, d. before the arrival of the carpenter. for wages of the smith for the year, s. d. for one cart bound in iron bought new, s. d. for wheels purchased for one cart to haul dung, d. for leather harness and trappings, iron links, plates, halters, d. for purchase of ropes, d. for purchase of sacks, d. for purchase of locks for the granary, d. for making gates for the sheepfold, s. for one gate for the farm yard, d. for an ax and tallow purchased and for repairing the spindles of the mill for the year, s. d. for one millstone purchased for the mill s. for making one gate near the mill, d. for meat prepared in the larder, s. for beer bought for cleaning carcasses, s. d. for digging perches of land around the pasture in the marsh, s. d.; for each perch d. ob. for the dovecote newly made, s. d. ob. for cutting thick planks for flooring both dispensary and butlery, s. d. for nails or pegs bought for planking beyond the cellar, d. for enclosing the garden by making gates, s. d. ob. for digging in the gardens, s. d. for the winter work of carts, s. d. for the lent work of carts, s. d. for spreading acres with dung, d. for threshing quarters of wheat at mardon for seed, s. for winnowing the same, d. for winnowing quarters of grain for seed, s. d. for threshing quarters of grain s.; for each quarter d. for threshing quarters of mixed corn [grain], s. d. for threshing quarters of barley, s. d. for threshing quarters of oats, s. d. ob. for hauling gravel to the bridge and causeway, d. for cost of dairy, viz., tines of salt, cloth, and pots, s. d. for purchase of oxen, pounds s. for hoeing acres, s. d. for wages of two carters, one neatherd, for the year, s. for wages of one carpenter for the year, s. d. for wages of one dairy woman, s. d. for payment of mowers of the meadow at nunton, d. for sheep purchased, s. for wages of one neatherd from nunton, d. for carrying casks of wine by walter locard, in the time of martinmas, s. d. for the carrying of casks of wine from southampton to downton by the seneschal, s. d. at the feast of st. lawrence. for digging perches in the farmyard, s. d.; for each perch d. ob. for allowance of food of robert of lurdon, who was sick for days, with his man, s. d. for allowance of food to sewal who was caring for horses of the lord bishop for weeks, d. for allowance of food for roger walselin, for the two times he made gifts to the lord king at clarendon, s. d. by two tallies. for allowance of food of master robert basset, for journeys, s. d. ob. for livery of william fitzgilbert, s. d. for ells of canvas purchased for laying over the wool, and cushions prepared for the court, s. for sheep purchased, with lambs, s. sum: pounds. d. sum of livery and expenses: pounds s. d. and there is owing: pounds s. d. ob. produce of granary: the same render account of and a half quarters and strike from all the produce of grain; and of quarters brought from mardon. sum: and a half quarters and strike. for sowing acres, quarters. for bread for the lord bishop, and a half quarters delivered to john de dispensa by three tallies. for the balance sold, quarters and strike. the same render account of and a half quarters from all the produce of small corn [grain]. for the balance sold, all. the same render account of quarters and strike from all the produce of mixed corn [grain]. for seeding acres, quarters and strike. for bread for autumnal works, quarters. for the balance sold, quarters. the same render account of and a half quarters from all the produce of barley. for sowing and a half acres, and a half quarters. for payment for carts, quarter. for payment for hauling dung, quarters. for allowance of food of two carters, one carpenter, one neatherd, one dairy woman, for the year, and a half quarters. for feeding hogs in the winter, quarters. for the balance sold, and a half quarters. it is quit. the same render account of quarters and bushels from all the produce of oats. in sowing and a half acres, and a half quarters. for prebends [revenues paid for a clergyman's salary] of the lord bishop and lord king, on many occasions, and a half quarters and bushels, by five tallies. for prebends of roger wakelin, and a half quarters and bushels. for prebends of master robert basset, and a half quarters and bushel. for provender [dry food for livestock] of horses of the lord bishop and horse of richard marsh, for weeks, and a half quarters and bushels. for provender of horses of the lord bishop who stayed nights at downton, quarters. for that sent to knoyle, quarters. for provender of horse of robert of lurdon for weeks, and a half quarters. for prebends of two carters quarters and bushels. for the balance sold, quarters. and there remains quarters and strike. the same render account of and a half quarters from the whole produce of beans. for planting in the garden half a quarter. for the balance sold, quarters. it is quit. the same render account of quarters and strike from all the produce of peas. for sowing acres, and a half quarters. for the balance sold and a half quarters and strike. it is quit. the same render account of quarters from all the produce of vetches [pea plants used for animal fodder]. for feeding pigs in the winter, all. it is quit. beasts of burden: the same render account of oxen remaining from the previous year. and of yoked from useless animals. and of from the will of robert copp. and of purchased. sum: . of living ones sold, . of dead, . sum: . and there remain oxen. the same render account of goats remaining from the previous year. all remain. the same render account of cows remaining from the previous year. and of yoked from useless animals, and of found. sum: . by death, . by killing, brought for the need of the lord bishop at cranbourne, . sum: . and there remain cows. the same render account of heifers and steers remaining from the previous year. in yoked cows, heifers. in yoked oxen, bulls. sum: . the same render account of yearlings remaining from the previous year. by death, . there remain , of which are female, male. the same render account of calves born this year from cows, because the rest were sterile. in tithes, . there remain . the same render account of sheep remaining from the previous year. and of sheep for the payment of herbage, after birth, and before clipping. and of bought before birth. and of young ewes mixed with two-year-olds. sum: . in live ones sold at the time of martinmas, . in those dead before birth, . in those dead after birth and before shearing, . sum: . and there remain sheep. the same render account of wethers [castrated rams] remaining from the previous year. and of wethers mixed with two-year- olds. and of rams from lindsey, which came by brother walter before shearing. sum: . in living ones sold at the time of martinmas, wethers, rams. paid to the men of bishopton before shearing by writ of the seneschal, . by death, before shearing, . sum: . and there remain sheep. the same render account of old sheep remaining, with lambs from the previous year. by death before shearing, . and there remain ; whence are young ewes, mixed with sheep, and males, mixed with wethers. the same render account of lambs born from sheep this year because were sterile, and aborted. in payment of the smith, ; of shepherds, . in tithes, . in those dead before shearing, . sum: . and there remain lambs. the same render account of large sheepskins whence were from the rams of lindsey. in tithes, . in payment of three shepherds, . in the balance sold skins with skins from lindsey which made pondera. the same render account of lamb skins. in the balance sold, all, which made and a half pondera. the same render account of cheeses from arrears of the previous year. and of small cheeses. and of larger ones from the arrears of the previous year. and of cheeses which were begun the th of april and finished on the feast of st. michael, both days being counted. and they made cheeses two by two for days, viz. from the th april to the vigil of the feast of st. peter in chains, both days being counted. sum: cheeses. in tithes . in payment of a shepherd, and mowers of the meadow from nunton, . in duty of a carter, . in autumnal work, . in expenses of the bishop in the kitchen, by one tally. in the balance sold, cheeses, which made heads, from arrears of the previous year. in the balance sold, cheeses, which made heads in this year. in expenses of the lord king and lord bishop on the feasts of st. leonard and st. martin, small cheeses, and larger ones from the arrears of the previous year. and there remain small cheeses which make one head. the same render account of hogs remaining from the previous year. and of that were born of sows. sum: pigs. in tithes, . by death, . in those killed for the larder, . sum: pigs. and there remain pigs. also suckling pigs. sum of the whole: pigs. the same render account of chickens from arrears of the previous year. and of chickens for cheriset. sum: . in expenses of the lord bishop on the feast of st. martin, by one tally. in expenses of the same on the feast of st. leonard, , by one tally. in expenses of the lord king and bishop on the feast of the apostles peter and paul, chickens, by two tallies. in allowance for food for roger wakelin, . in allowance of food for master robert basset, . by death, . sum: chickens. it is quit. the same render account of chickens, sticae of eels, suckling pigs, freed for the expenses of the lord king and bishop. from the larder: the same freed for the expenses of the lord bishop meat of cows taken to cranbourne. the same render account of sides of bacon, arrears of the previous year. and of oxen and quarter of old beef from arrears of the previous year. and of hogs from downton. and of hogs from mardon. and of hogs from overton. and of hogs from high-clere. and of hogs from harwell. and of hogs from knoyle. sum: hogs, and meat of oxen and one quarter. in expenses of the lord bishop at the feast of st. martin, sides of bacon. in expenses of the same at the feast of st. leonard, sides of bacon, the meat of oxen, and quarter of an ox. in expenses of the same on the morrow of the feast of the holy cross, delivered to nicolas the cook, sides of bacon. in expenses of the lord bishop delivered to the same cook at knoyle on the saturday before the feast of st. michael, sides of bacon. in expenses of the same and of the lord king on the feast of the apostles peter and paul, sides of bacon. in allowance of food to master robert basset on the feast of all saints, half a side of bacon. in allowance of food to the same on wednesday and thursday before pentecost, side of bacon. in those sent to knoyle for autumnal work, sides of bacon. in three autumnal festivals at downton, and a half sides of bacon. sum: sides of bacon. and there remain sides of bacon. the same render account of skins, sausages, and offal of the said hogs. in expenses of the lord king and lord bishop at the feast of st. leonard, all. nothing remains." king richard the lion-hearted, unlike his father, was interested in warfare. he spent most of his term on crusade to recover jerusalem. for his expenses, he imposed a tax of one-tenth of rents and income from personal property and goods. he also sold town charters, heiresses and heirs, widows, sheriffdoms, justiceships, earldoms, and licenses for tournaments. in , the bishop barons had refused to pay for a campaign of richard's war in normandy arguing that military service was only due within the kingdom of england. when richard was captured, every person in the realm was required to pay a part of his ransom of , pounds, which was double the whole revenue of the crown. aids, tallages, and carucage were imposed. the heaviest impost was one-fourth of revenue or of goods from every person.the crusaders' contact with arabs brought to england an expansion of trade, arab horses, and arabic numerals, which included "zero" and greatly facilitated arithmetic, which was very difficult with roman numerals. the church decreed that those who went on these crusades would be remitted of their sins. at the end of this period was the reign of king john, a short man. after his mother eleanor's death in , john ruled without her influence. he had no conscience and his oaths were no good. he trusted and was trusted by no one. he had a huge appetite for money. he imposed , pounds [ , marks] on london for confirmation of its charter. he imposed levies on the capital value of all personal property and goods. it began the occasional subsidies called "tenths and fifteenths" from all people on incomes from movables: one-tenth from boroughs and royal demesne land, and one-fifteenth elsewhere. he sold the wardships of minors and the marriages of heiresses to the highest bidder, no matter how base. he appointed unprincipled men to be both sheriff and justice, enabling them to blackmail property holders with vexatious writs and false accusations. writs were withheld or sold at exorbitant prices. crushing penalties were imposed to increase the profits of justice. he asserted over fowls of the air the same exclusive right as over beasts of the forest. the story of robin hood portrays john's attempt to gain the crown prematurely while richard was on the crusades to recover jerusalem for christendom. in , strong northern barons refused a royal demand for service in france or scutage, arguing that the amount was not within custom or otherwise justified. john had private and public enemies. no one trusted him and he trusted no one. his heavy handed and arbitrary rule quickly alienated all sectors of the population: other barons, bishops, london, and the commons. they joined the barons to pressure him to sign the magna carta, much of which restated henry ii's work. since john had extracted many heavy fines from barons by personally adjudging them blameworthy in disputes with others, the barons wanted judgment by their peers under the established law of the courts. in arms, the barons forced john to sign the magna carta correcting his abuses. the law during the s and s, changes took place with regard to wills which gradually established a definite common law. they were: the king's court condemns the post obit gift of land because it was rung from a man in the agony of dying when he had most probably lost his memory and his reason, and it disappeared in the late s, except for burgage tenements. the primogeniture scheme for the descent of land had been well established in the course of the s and the concept of a definite heir as appointed by god was now established. heirship now has nothing to do with chattels. the church takes jurisdiction by over succession of chattels and succession assumes a testamentary character with witnesses and with an executor to carry out the dead man's will and pay his debts. a will only dealt with the dead man's part of his chattels, the law providing parts for the wife and children. if there were both wife and children, the wife took one-third and the children, except for the heir, one-third and the man could will the remaining third. if there is a wife but no child or a child but no wife, one half went to the surviving wife or children, except for the heir, and one-half was governed by the will. if there was no will, which was rare, the situation was unsettled, but usually the church distributed the remaining portion for the good of the dead man's soul. by statute, no one, including the lord of a manor, may take land from anyone else, for instance, by the customary process of distress, without a judgment from the royal court. this did not apply to london, where a landlord leasing or renting land could take distress in his fee. no one, including the lord of a manor, shall deprive an heir of the land possessed by his father, i.e. his birthright. a tenant may marry off a daughter unless his lord shows some just cause for refusing to consent to the marriage. a tenant had to pay an "aid" to his lord when the lord's daughter married, when the lord's son was knighted, or when the lord's person was ransomed. a man [or woman] may not will away his land, but he may sell it during his lifetime. the land of a knight or other tenant of a military fee is inherited by his eldest son. the socage land of a free sokeman goes by its ancient custom before the norman conquest. if a man purchased land after his marriage, his wife's dower is still one-third of the land he had when they married, or less if he had endowed her with less. but he could then enlarge her dower to one-third of all of his lands. the same rule applied if the man had no land, but endowed his wife with chattel or money instead. dower law prevented a woman from selling her dower during the life of her husband. but he could sell it or give it away. on his death, its possessor had to give the widow the equivalent worth of the property. a widower with a child born of the marriage had all his wife's lands by curtesy of the nation for his lifetime to the exclusion of her heirs. the capital messuage [chief manor] could not be given in dower or divided, but went in its entirety to its heir. heirs were firstly sons, then daughters jointly, then grandsons per stirpes, then granddaughters per stirpes, then brothers, and then sisters of the decedent. [by taking "per stirpes" instead of "per capita", a person's share goes to that person's heirs if that person predeceases the ancestor-decedent.] male heirs of land held by military service or sons of knights who were under the age of twenty-one were considered to be in custody of their lords. the lord had wardship over the heir's land, excluding the third that was the widow's dower for her life. he also had wardship over the heir's body or person and had the right to arrange the ward's marriage, which he did as early ass when the ward was age . both wardships were lucrative and could be bought and sold. the heir's guardian had to maintain the heir in a manner suitable to his dignity and restore to him when he came of age his inheritance in good condition discharged from debts. otherwise the lord could take the profits of the land. the guardianship was not fiduciary. the ward lived with his guardian and was taught to fight. when he came of age, he did homage and fealty for the land. the mother did not have a right to the guardianship of a son who was an heir. male heirs of sokemen who were under the age of fifteen were in the custody of their nearest kindred. the son of a burgess came of age when he could count money, measure cloth, and manage his father's concerns. female heirs remained in the custody of their lords until they married. the lord was bound to find a marriage for his ward when she became fourteen years of age and then deliver her inheritance to her. she could not marry without her lord's consent, because her husband was expected to be the lord's ally and to do homage to him. but if a female heir lost her virginity, her inheritance escheated to her lord. a woman with property could not do homage because she could not perform military service, but she generally swore fealty. she could receive homage from men. bastards were not heirs, even if their father married their mother after birth. any adult inheriting land had to pay a "relief" to the lord of the land. for a knight's fee, this was s. for socage land, this was one year's value. the amount for a barony depended upon the king's pleasure. heirs (but not widows) were bound to pay the debts of their fathers and ancestors. a man who married a woman who had inherited land could not sell this land without the consent of its heirs. when a man dies, his wife shall take one-third and his heirs shall take one-third of his chattels [movables or personal property]. the other third he may dispose of by will. if he had no heirs and no will, all his chattels would escheat to his lord. any distribution of chattels would take place after all the decedent's debts were paid from the property. a will required two witnesses. the testator could name an executor, but if he did not, the next of kin was the executor. a will could not be made by a man on his death bed because he may well have lost his memory and reason. also, he could not give to a younger son if in so doing, he would deprive his lawful heir. but he could give a marriage gift to a daughter regardless of the lawful heir. usury was receiving back more than what was lent, such as interest on a loan of money. when a usurer died, all his movables went to the king. a villein may not buy his own freedom (because all that he has is his lord's), but may be set free by his lord or by someone else who buys his freedom for him. he shall also be freed if the lord seduced his wife, drew his blood, or refused to bail him either in a civil or criminal action in which he was afterwards cleared. but a freed villein did not have status to plead in court, even if he had been knighted. if his free status were tried in court, only a freeman who was a witness to his being set free could avail himself of trial by combat to decide the issue. however, if the villein remained peacefully in a privileged town a year and a day and was received into its guild as a citizen, then he was freed from villeinage in every way. a freeman who married a villein lost his freedom. if any parent of a child was a villein, then the child was also a villein. all shipwrecked persons shall be treated with kindness and none of their goods or merchandise shall be taken from them. if one kills another on a vessel, he shall be fastened to the dead body and thrown with it into the sea. if one steals from another on a vessel, he shall be shaven, tarred and feathered, and turned ashore at the first land. passage on the thames river may not be obstructed by damming up the river on each side leaving a narrow outlet to net fish. all such weirs shall be removed. judicial procedure henry ii wanted all freemen to be equally protected by one system of law and government. so he opened his court, the royal court, to all people of free tenure. a court of five justices professionally expert in the law (rather than earls and barons), traveled with the king, and on points of difficulty consulted with him. justices began to be more than presiding officers; they, instead of the lay and clerical tenants-in-chief who attended, rendered the judgments. the chief court was in westminster, where the weightiest decisions were made. other professional itinerant justices appeared periodically in all counties of the nation to hear certain criminal and civil cases and to hear citizens' private civil suits [common pleas]. they came to perform many other tasks, including promulgating and enforcing new legislation, seeking out encroachments on royal rights, reviewing the local communities' and officials' performance of their public duties, imposing penalties for failure to do them or for corruption, gathering information about outlaws and nonperformance of homage, and assessing feudal escheats to the crown, wardships to which the king was entitled, royal advowsons, feudal aids owed to the king, tallages of the burgesses, and debts owed to the jews. the decision-making of itinerant justices on circuits begins the process which makes the custom of the royal court the common law of the nation. the county courts, where the traveling justices heard all manner of business in the counties, adopted the doctrines of the royal court, which then acquired an appellate jurisdiction. the itinerant justices came from the same small group of royal justices who were on the royal court and the exchequer, which was headed by the justiciar. difficult cases were decided by the king and wise men of his council. the royal court was chiefly concerned with ) the due regulation and supervision of the conduct of local government, ) the ownership and possession of land held by free tenure ("free tenement" was decided by justices to be one held for life or one held heritably [a fee]), and ) the repression of serious crime, including homicide, mayhem [injuring a limb so as to make it useless], robbery, arson, and rape. henry was determined to protect lawful seisin of land and issued assizes giving the royal court authority to decide land law issues which had not been given justice in the county or lord's court. but he did not ordain that all litigation respecting free tenements, e.g. right of seisin, should take place in the king's court. rather he gave protection to mere possession of land, which could be justified because possession was intimately associated with the maintenance of the king's peace. these assizes included issues of novel disseisin [recent ejectment] of a person's free tenement or of his common of pasture which belonged to his freehold. by the assize of novel disseisin, an ejected possessor could have a jury of recognitors decide whether the ejectment had been just or not. though the petty assize of disseisin only provided a swift preliminary action to protect possession pending the lengthy and involved grand assize on the issue of which party had the more just claim or ultimate right of seisin, the latter action was only infrequently invoked. the temptation of a strong man to seize a neighbor's land to reap its profits for a long time until the neighbor could prove and enforce his right was deterred. any such claim of recent dispossession [novel disseisin] had to be made within three years of the disseisin. an example of a writ of novel disseisin is: the king to the sheriff, greeting. n has complained to me that r unjustly and without a judgment has disseised him of his free tenement in [houndsditch] since my last voyage to normandy. therefore i command you that, if n gives you security for prosecuting his claim, you are to see that the chattels which were taken from the tenement are restored to it, and that the tenement and the chattels remain in peace until sunday after easter. and meanwhile you are to see that the tenement is viewed by twelve free and lawful men of the neighborhood, and their names endorsed on this writ. and summon them by good summoners to be before me or my justices on the sunday after easter, ready to make the recognition. and summon r. or his bailiff if he himself cannot be found, on the security of gage [something given as secuxrity for performance] and reliable securities to be there then to hear the recognition. and have there the summoners, and this writ and the names of the sureties. witness etc. then an assize panel of recognition summoned concurrently with the defendant and before he had pleaded, viewed the land in question and answered, from their knowledge, these questions of fact: ) was the plaintiff disseised of the freehold in question, unjustly and without judgment? ) did the defendant commit the disseisin? testimony of a warrantor (or an attorney sent by him in his place) or a charter of warranty served to prove seisin by gift, sale, or exchange. no pleadings were necessary and the action could proceed and judgment given even without the presence of the defendant. the justices amerced the losing party with a monetary penalty. a successful plaintiff might be awarded damages to compensate for the loss of revenue. there was also a writ for issues of inheritance of land called "mort d'ancestor". by the assize of mort d'ancestor, an heir of a tenant who died and who was refused the land by the lord could have this refusal determined to be just or unjust. for this issue, the royal court used an similar assize panel of twelve men to decide whether the ancestor was seised as of fee in his demesne, if the plaintiff was the nearest heir, and whether the ancestor had died, gone on a crusade but not returned, or had become a monk. then it could give possession to the heir. since about , heiresses divided the land of their father if there was no son. the widow, of course, retained her dower rights. as of , the widow held her dower from the heir instead of from the husband's lord. if the heir was a minor, the guardian lord would be in actual control of the land. a national policy was implemented that in the case of the death of a freeholder, the rights of the family, his will, and his debts were to be provided for before relief was paid to his lord. eventually royal justices acquired authority to decide the ultimate question of right to land using the grand assize as an alternative to the traditional procedures which ended in trial by combat. issues of the ultimate right of seisin were brought to the royal court by a contestant in a local court who "put himself [or herself] upon the king's grand assize". the assize consisted of twelve knights from the county or neighborhood who were elected by four knights of the same county or neighborhood (selected by the sheriff or the suitors) and who were known as truthful men and were likely to possess knowledge of the facts, either from personal seeing or hearing, or from statements which their fathers had made to them from their personal knowledge. the avenue by which a person who felt he had not had justice in the manor court on his claim for certain freehold land appealed to the king was by writ of right after the manor court's decision or by a writ praecipe during the manor court's proceeding. an example of a writ praecipe is: "the king to the sheriff greeting. command [praecipe] n. to render to r. justly and without delay one hide of land in a certain vill, which the said r. complains that the aforesaid n. is withholding from him. if he does not do so, summon him by good summoners to be before me or my justices on the day after the octaves of easter, to show why he has not done so. and have the summoners and this writ. witness." when the parties appeared in court, the claimant states his suit such as: "i claim against this n. the fee of half a knight and two carucates of land in a certain vill as my right and my inheritance, of which my father (or grandfather) was seized in his demesne as of fee in the time of king henry the first, and from which he took the profits to the value of five shillings at least, in grain and hay and other profits; and this i am ready to prove by this freeman of mine, h., and if any evil befalls him them by this other man or by this third man, who saw and heard it". then the defendant chose to deny the claim word for word with proof by combat or to put himself upon the grand assize of the king. if he chose trial by combat, the parties or their champions fought. the party losing, usually by crying craven, had to pay a fine of s. if the grand assize was chosen, the action was removed to the royal court. a writ of grand assize was issued as follows: "the king to the sheriff, greeting. summon by good summoners the following twelve, namely, a. b. ..., to be before me or my justices at a certain place on a certain day, ready to declare on oath whether n. or r. has the greater right in one hide of land (or other things claimed) which the aforesaid r. claims against the aforesaid n., who is tenant, and in respect of which the aforesaid n., who is tenant, has put himself upon my assize and has sought a recognition to determine which of them has the greater right in the things claimed. and meanwhile the twelve shall view the land (or tenements [including meadows, pastures, woods, wastes, and rights of common] from which the services are demanded). and summon by good summoners n., who is tenant, to be there to hear the recognition. witness..." the claimant could object to any of the twelve knights for just cause as determined by the court. each of the twelve gave an oath as to whether the plaintiff's or the defendant's position was correct. this oath was not to speak falsehood nor conceal truth according to knowledge gained by eyewitness or "by the words of their fathers and by such words as they are bound to have such confidence in as if they were their own". if any did not know the truth of the matter, others were found until twelve agreed [the recognitors] on which party had the greater right. perjury was punished by forfeiture of all one's goods and chattels to the king and at least one year's imprisonment. if the tenant in court vouched another to warranty, such as the lord to whom he paid homage, that warrantor would stand in his place in the proceedings. if the warrantor lost, he would have to give to his vassal equivalent land in exchange. burgage tenure was not usually decided by assize. also, if the parties were relatives, neither the assize nor the combat was available to them, but the matter had to be decided by the law of inheritance. itinerant justices could conduct these assizes: petty and grand. in , the hundred is empowered to act on all the business of the session, including all recognitions and petty assizes ordered by the king's writ, where the property in dispute was worth no more than s. [ten pounds] a year. the four knights came to be selected by the suitors of the county court rather than by the sheriff. this assize procedure extended in time to all other types of civil actions. removable to the royal court from the county courts were issues of a lord's claim to a person as his villein, service or relief due to a lord, dower rights, a creditor's refusal to restore a gage [something given as security] to a debtor who offered payment or a deposit, money due to a lender, a seller, or a person to whom one had an obligation under a charter, fish or harvest or cattle taken from lands unjustly occupied, cattle taken from pasture, rights to enjoy a common, to stop troubling someone's transport, to make restitution of land wrongfully occupied, to make a lord's bailiff account to him for the profits of the manor. as of , pleas concerning amounts of money less than s. were not heard by the royal court. the royal court also decided disputes regarding baronies, nuisance or encroachments on royal land or public ways or public waterways, such as diverting waters from their right course and issues of nuisance by the making or destroying of a ditch or the destruction of a pond by a mill to the injury of a person's freehold. other pleas of the crown were: insult to the royal dignity, treason, breaches of safe-conducts, and injury to the king's servants. henry involved the royal court in many criminal issues, using the agencies of the county and hundred courts. to detect crimes, he required itinerant royal justices to form juries of presentment {indictment] composed of usually knights or other landholders of every neighborhood and respectable men of each township and ask them if any person were suspected of any murder, robbery, theft, etc. (these later evolved into grand juries). these assizes were an ancient institution in many parts of the country. what henry's assize did was to insist upon the adoption of a standard procedure everywhere systematically. the procedure was made more regular instead of depending on crime waves. if indicted, the suspected persons were then sent directly to the ordeal. henry abolished trial by compurgation in the royal courts. if determined guilty, the offender forfeited his chattels to the king and his land reverted to his landlord. the penalty prescribed by the assize of clarendon of was loss of a foot and abjuring the realm. the assize of northhampton of added loss of the right hand. often, a man who had a bad reputation had to abjure the realm even if he had successfully undergone the ordeal. the most serious criminal matters such as killing the king or sedition or betraying the nation or the army, fraudulent concealment of treasure trove [finding a hoard of coins which had been buried when danger approached], breach of the king's peace, homicide, murder (homicide for which there were no eyewitnesses), burning (a town, house, men, animals or other chattel for hatred or revenge), robbery, rape and falsifying (e.g. false charters or false measures or false money) were punishable by death or loss of limb. murders were now punished alike because the applicability of the murdrum fine couldn't be determined since it was impossible to prove that the slain man had been english since he would have been mutilated to hide his nationality. women did not serve on juries. having the jury of presentment precluded free men from being sent to the ordeal by compurgation oaths of the villeins. as of , this jury of presentment procedure applied not only to criminal cases, but also to civil, and fiscal cases. as before, a person could also be brought to trial by the accusation of the person wronged by a felony ["appeal"]. if the accused still denied the charge after the accuser testified and the matter investigated by inquiries and interrogation and then analyzed, trial by combat was held, unless the accuser was over the age of sixty or maimed, in which case the accused went to the ordeal. the procedure of henry ii's assizes was extended from case to case as men lost faith in the older types of proof. the ordeal fell into disuse when the church prohibited blessing of ordeals in its lateran council of . henry introduced the petty or trial jury of reputable men to provide a workable alternative to the ordeal, compurgation, and combat. these jurors were expected to know or to find out the facts that could lead to a decision. gradually, witnesses had to be brought in to tesify to facts the jurors didn't know. housebreaking, harboring outlaws, and interference with the royal perquisites of shipwreck and the beasts of the sea which were stranded on the coast [such as whales and sturgeon] were also punishable in the royal court. trespass was a serious and forcible breach of the peace onto land that developed from the criminal law of felony. trespass becomes a general term for almost all wrongful acts and defaults against a person, land, or chattels. it covered only direct damages due to physical contact. there are two main punishments: ) amercement of a sum of money deetermined by at least two peers of the offender and ) imprisonment in gaol redeemable by agreement to a fine after a couple of years in gaol. another punishment was abjuration of a town or of the realm. in boroughs, an offending burgess may lose liberties or have to abjure their trade or craft. pillory and tumbrel [e.g.ducking stool] was usual for bakers and alewives who broke the assizes of bread and beer, which was often. the royal court had grown substantially and was not always presided over by the king. to avoid court agents from having too much discretionary power, there was a systematic procedure for bringing cases to the royal court. first, a plaintiff had to apply to the king's chancery for a standardized writ into which the cause had to fit. the plaintiff had to pay a fee and provide a surety that the plea was brought in good faith. the progress of the suit was controlled at crucial points by precisely formulated writs to the sheriff, instructing him for instance, to put the disputed property under royal protection pending a decision, to impanel an assize and have it view the property in advance of the justices' arrival, to ascertain a point of fact material to the plea, or to summon a 'warrantor' to support a claim by the defendant. the royal court kept a record on its cases on parchment kept rolled up: its "rolls". the oldest roll of is almost completely comprised of land cases. anyone could appoint an agent, an "attorney", to appear in court on his behalf, it being assumed that the principal could not be present and royal authorization given. a wife could represent her husband. the principal was then bound by the actions of his agent. gradually men appeared who made a business of representing whoever would employ them. the common law system became committed to the "adversary system" with the parties struggling judicially against each other. the royal court took jurisdiction over issues of whether certain land was civil or ecclesiastical [assize utrum], and therefore whether the land owed services or payment to the crown or not. it also heard issues of disturbance of advowson, a complex of rights to income from a church and to the selection of a parson for the church [assize of darrein [last] presentment]. by this assize, the identity of the patron who last presented an incumbent to a particular church could be discovered. many churches had been built by a lord on his manor for his villeins. the lord had then appointed a parson and provided for his upkeep out of the income of the church. in later times, the lord's chosen parson was formally appointed by the bishop. by the s, many lords had given their advowsons to abbeys. this procedure used twelve recognitors selected by the sheriff. as before, the land of any person who had been outlawed or convicted of a felony escheated to his lord. his personal property, goods, and chattels became the king's. if he was executed, his heirs received nothing because they were of the same blood as the felon, which was corrupt: "corruption of the blood". the loss of civil rights and capacities after a sentence of death for felony or treason, which resulted in forfeiture of property and corruption of the blood, was called "attainder". there were two courts of the sheriff: the shire court for civil and criminal matters and the sheriff's tourn for petty crime only. the shire and borough courts heard cases of felonies, accusations against freemen, tort, and debts. the knights made the county courts work as legal and administrative agencies of the crown. the manor court heard cases arising out of the unfree tenures of the lord's vassals. it also heard distraint, also called "distress", issues. distraint was a landlord's method of forcing a tenant to perform the services of his fief. to distrain by the fief, a lord first obtained a judgment of his court. otherwise, he distrained only by goods and chattels without judgment of his court. a distraint was merely a security to secure a person's services, if he agreed he owed them, or his attendance in court, if he did not agree that he owed them. law and custom restricted the type of goods and chattels distrainable, and the time and manner of distraint. for instance, neither clothes, household utensils, nor a riding horse was distrainable. the lord could not use the chattels taken while they were in his custody. if cattle in custody were not accessible to the tenant, the lord had to feed them at his expense. the lord, if he were not the king, could not sell the chattel. this court also determined inheritance and dower issues. the court of the vill enforced the village ordinances. the hundred court met twice a month and dealt with the petty crimes of lowly men in the neighborhood of a few vills. franchise courts had jurisdiction given by special royal grant, such as the courts of the chancellors of oxford and cambridge universities. the peace of the sheriff still exists for his county. the king's peace may still be specially given, but it will cease upon the death of the king. law required every good and lawful man to be bound to follow the hue and cry when it was raised against an offender who was fleeing. the village reeve was expected to lead the chase to the boundary of the next jurisdiction, which would then take the responsibility to catch the man. before henry's reign, the church, with the pope's backing, had become more powerful and asserted more authority. henry tried to return to the concept of the king being appointed by god and as the head of the church as well as of the state, as in henry i's time, and to include the church in his reform of the legal system, which would make the spiritual jurisdiction and temporal jurisdiction conform to a common justice. toward this end, he published the constitutions of clarendon. but the archbishop of canterbury, thomas becket, refused to agree to them, although as chancellor he had seen the beneficial effects on the kingdom of henry's legal measures. the disagreement came to a head in henry's attempt to establish the principle of "one law to all" by having church clerics punished by the civil courts as before, instead of having "benefit of clergy" to be tried and punished only in ecclesiastical courts, even for secular crimes. clerics composed about one-sixth the population. the church courts had characteristically punished with spiritual penalties of a fine or a penance, and at most defrocking. it could not impose a death penalty, even for murder. when archbishop becket was murdered and became a martyr, "benefit of clergy" became a standard right, except for offenses in the king's forests. appeals could be made to the pope without the king's permission. the king could take a criminal cleric's chattels, but not his life. however, though theoretically bishops were elected by the body of bishops with the approval of the king, as a practical matter, the king chose the bishops and the abbots. it was a constant matter of dispute, in which the pope would sometimes involve himself. selection of archbishops was also a frequent matter of contention between king and pope. the church copied the assize procedure developed by the royal court to detect ecclesiastical offenses though it retained trial by compurgation. bishops could request the chancery to imprison an offender who had remained excommunicant for forty days, until he made amends. chancery complied as a matter of course. this went on for six centuries. the delineations of jurisdiction among these courts were confused and there was much competing and overlapping of jurisdictions. however, the court could appoint arbitrators or suggest to the parties to compromise to avoid the harshness of a decisive judgment which might drive the losing party to violent self-help. the office of coroner was established about to supplement the judicial investigations of crimes with local officers prior to the arrival of the itinerant justices. four knights who were residents of the county and possessed sufficient land were elected by the county court for life. sometimes they had county and royal connections instead. they received no pay. they determined if sudden deaths were accidental or due to murder and the cause of death of prisoners. they also held inquests on other crime such as bodily injury, rape, and prison break. they attached [arrested] the accused and evaluated and guarded his chattels until after the trial. if the accused was found guilty, his possessions went to the king. the coroner sat with the sheriff at every county court and went with him on his turns. this office and the forbidding of sheriffs to act as justices in their own counties reduced the power of the sheriffs. the responsibility of receiving the oath of the peace is changed from the sheriff to knights, the duty of the sheriffs being only to receive and keep the criminals taken by these knights until the justices came to try them. also, at this time, the constitution of the grand jury of the county was defined. first, four knights were to be chosen in the county court. these were to select on oath two knights from each hundred. these two, also on oath, are to add by co-optation ten more for the jury of the hundred. in london, if one of two witnesses for the defense died while an action was pending, the survivor, after offering his oath, could proceed to the grave of the dead witness, and there offer oath as to what the dead man would have sworn if he had been alive. if a foreigner was bound to make oath for debt or any misdeed, he could make it with six others, his own oath being the seventh; but if could not find six supporters, he alone could make the oath and take it in the six nearest churches. in london, the method of capital punishment was being confined to hanging, instead of also being in the form of beheading, burning, drowning, stoning, or hurling from a cliff. in cases of drowning, the offender was first sewn up in a sack with a snake, a dog, an ape, and a cock. chief justiciar ranulph glanvill wrote a treatise on the writs which could be brought in the royal court and the way they could be used. it was a practical manual of procedure and of the law administered in the royal court. there are personal actions such as "debt" for specific chattel or specific sum of money. the action for debt splits into two actions. the "detinue" action is for wrongful detention of personal property which originally was rightfully acquired as by loan, rent, or left for safe-keeping and its award is for the specific chattel detained or its value. the action of "replevin" is available to the tenant to recover personal property which had been wrongly distrained, usually cattle; the goods are "repledged" pending action. also, but rarely used, are "covenant" to protect termors for leases of land for terms of years, and "trespass": a semi-criminal action brought by a private party for an offense punishable by death (or in the s by mutilation) such as murder, rape, robbery, or mayhem, that is done with force of arms and against the peace of the king. the use of trespass grew as private actions for felony were supplanted by public indictment. it occasioned outlawry in default of appearance. about , outlawry was not used for crimes falling short of felony. these personal actions were initiated in common law courts by their respective writs. these are some of the cases of novel disseisin brought to the king's court: woodbridge v. bardolf ( , king's court): ralf of woodbridge seeks before the justices his free tenement in hebston by the assize of novel disseisin against hugh bardolf. against which assize hugh said that he had that seisin by judgment of his court for the default of the same ralf. and the court has recorded the summons and distraints reasonably made on the same ralf. and ralf himself has acknowledged the summons and distraints and said that he ought not hold anything from him in that land; rather, it is of another's fee. and because neither he nor anyone for him has complained to the justices that hugh unjustly drew him into a plea concerning a tenement which ralf himself held of the fee of another lord, it is considered that hugh hold in peace. and let ralf plead by writ of right if he want and be in mercy for his false claim. turroc v. fitz walter ( , king's court): the assize came to recognize if clement son of walter unjustly and without judgment disseised matilda of turroc of her free tenement within the assize. clement comes and says that he disseised her by judgment of his court. the court is present and records that she occupied more of her lord's land than she had in dower by the sheriff and by order of the lord king, so that she was summoned and distrained to come in to court, and she so responded that she remained in mercy of s. by judgment, so that for that amercement and for other complaints she made fine with her lord for / mark and put her land in pledge in his court and did not want to render the / mark. and therefore by judgment of his court he seised it. matilda denies all word for word. and the same clement only produces two men from his court; and it is considered that it was no court. judgment: let matilda have her seisin and let clement be in mercy for disseisin. fitz hereward v. prior of lecton ( , king's court): the assize came to recognize if the prior of lecton unjustly and without judgment disseised reginald son of hereward and essolda his wife of his free tenement in clapston after the first coronation of the lord king. the prior says that the assize ought not be taken thereof, because he seised that land by judgment of his court for default of his service and his rent, whereof he has his court present, which asserts the same thing. it is considered that the prior replevy [give back] to them their land and give them a day in his court concerning the arrears of rents and services. and let him treat them justly by judgment of his court. stanfeld v. brewes ( , king's court): the assize comes to recognize if simon of brewes and luke cleric and peter of brewes unjustly and without a judgment disseised odo of stanfeld and juliana his wife of her free tenement in michehey within the assize. simon says that the assize ought not be taken thereof, because he took that land into his hand by judgment of his court -- which he produced and which attests to this -- for default of his service. and it was testified that odo holds that land from the same simon. simon was ordered to replevy that land to odo as well as the chattels and to treat him rightfully in his court. fitz william v. amice et al. ( , king's court): the assize comes to recognize if amice who was the wife of richard earl of clare and hugh of ceriton, john of cornherd, william of wattevill, alexander son of gilbert, alexander son of matthew, bartholomew son of alexander, robert of cornherd, and geoffrey son of leveric unjustly and without judgment disseised richard son of william of sudbury of his free tenement in sudbury after the feast of st michael next before the coronation of the lord king. the countess says that, when she was separated by papal order from the earl of clare her husband by reason of consanguinity, to which husband the vill of sudbury had been given with her as marriage portion, she came to sudbury and convoked her court and made the same richard to be summoned to come to show by what warrant he held her land. he willingly entered into the plea and vouched the earl of clare her former husband to warrant and at the day given him to have [his warrantor] he did not have him. and thus by consideration of her court she seised her land and holds it. which court she produced and which attests this. richard comes and denies that he was ever summoned or came into her court by summons or vouched to warranty or so lost seisin by consideration of the court of the countess. and this he offers [to prove]. it is considered that he defend himself -handed that he did not willingly enter into the plea and vouch to warranty. let him wage his law [prove by the -handed oath, thus, by compurgation]. pledges of the law: hugh son of hugh, wido of sudbury. day is given them at the quindene of st. john. this is the suit of richard of sudbury: [there follow the names, but only of men] against the countess amice who was the countess of clare, concerning whom he had complained concerning a novel disseisin of his free tenement in sudbury. she said that by judgment of her court for default of warranty which he had vouched did she make the [dis]seisin and thereof did she produce suit. and he denied against her and against the suit, and law was adjudged. and he comes with his law and makes it with the abovesaid suit. therefore it is considered that he recover thereof his seisin; let the countess be in mercy for unjust disseisin and also her men, of whom the same richard has complained. and let the same countess return to him the damages done thereof by a jury of law-worthy men of the vicinity. the names of the men of the countess are in the writ. a sample of crown pleas in several hundreds or wapentakes [danish name for a hundred] from to are: . -denise, who was wife to anthony, appeals nicholas kam of the death of anthony, her husband, for that he wickedly slew her husband; and this she offers to prove against him under award of the court. and nicholas defends all of it. it is considered that denise's appeal is null, for in it she does not say that she saw the deed. the jurors being asked, say that they suspect him of it; the whole county likewise suspects him. let him purge himself by water [ordeal] under the assize. he has waged his law. . -william de ros appeals ailward bere, roger bald, robert merchant, and nicholas parmenter, for that they came to his house and wickedly in the king's peace took away from him a certain villein of his whom he kept in chains because he wished to run away, and led him off, and in robbery carried away his wife's coffer with one mark of silver and other chattels; and this he offers to prove by his son, robert de ros, who saw it. and ailward and the others have come and defended the felony, robbery, and breach of the king's peace, and say that (as the custom is in cornwall) roger of prideaux, by the sheriff's orders, caused twelve men to come together and make oath about the said villein, whether he was the king's villein or william's and it was found that he was the king's villein, so the said roger the serjeant demanded that [william] should surrender him, and he -refused, so [roger] sent to the sheriff, who then sent to deliver [the villein], who, however, had escaped and was not - - to be found, and william makes this appeal because he wishes to keep the chattels of thomas [the villein], to wit, two oxen, one cow, one mare, two pigs, nine sheep, eleven goats. - - and that this is so the jurors testify. judgment: william and robert in mercy for the false claim. william's amercement, a half-mark. robert's amercement, a half-mark. pledge for the mark, warin, robert's son. let the king have his chattels from william. pledge for the chattels, richard, hervey's son. . -serlo of ennis-caven appeals osbert of dimiliock and jordan, walter's son, for that they in the king's peace wickedly assaulted, beat and seriously wounded him, so that by reason of the beating three bones were extracted from his head; and this he offers to prove against him under the court's award as a man maimed by that mayhem. and it is testified by the coroners that the wounds when fresh were shown in the county [court], and that [the bones were broken] as aforesaid. and osbert and jordan come and defend word by word. it is considered that osbert do purge himself by ordeal of iron on account of the appeal, for serlo betook himself against osbert in the first instance. and let jordan be in custody until it be known how osbert shall fare. and the other persons who are appealed as accessories are to be under pledge until [osbert's fate] be known. . -the jurors say that they suspect william fisman of the death of agnes of chilleu, for the day before he had threatened her body and goods. and the four neighboring townships being sworn, suspect him of it. it is considered that he purge himself by water under the assize. . -william burnell and luke of the well are suspected of the burglary at the house of richard palmer by the jurors of the hundred, and by the four neighboring townships, which are sworn. let them purge themselves by water under the assize. . -malot crawe appeals robert, godfrey's son, of rape. he comes and defends. it is testified that he thus raped her and that she was seen bleeding. by leave of the justices they made concord on the terms of his espousing her. . -walter wifin was burgled, and of his chattels taken from his house in the burglary certain boots were found in the house of lefchild of ranam, and the said walter pursues - - those boots as his. and lefchild said that he bought them in bodmin market for / pence, but he knows not from whom. and besides walter says that eleven ells of linen cloth, part of the stolen goods, were sold in lefchild's house, and all the other proceeds of the burglary, and that lefchild was the receiver of the burglars, namely, robert of hideford -and alan the foresters, whom he [walter] had appealed of the -crime. and lefchild defends. the jurors on being asked, say that they suspect lefchild of the said receipt. so let him purge himself by water under the assize. . -eadmer of penwithen appeals martin, robert and thomas of penwithen, for that robert wounded him in the head so that twenty-eight pieces of bone were extracted, and meanwhile - - martin and thomas held him; and this he offers to deraign against the said robert as a man thereby maimed, under the court's award. and robert comes and defends all of it word - - by word. it is considered that he purge himself by ordeal of iron. let the others be in custody until it be known how robert shall fare. afterwards eadmer came and withdrew himself, and submitted to an amercement of one mark.pledges, reinfrid, gill's son, and philip his brother. let the other appellees go quit. . -reginald le teinus accused of the receipt and fellowship of robert the outlaw comes and defends. the jurors say that they suspect him, and the four neighboring townships say - - that they suspect him of it. so let him purge himself by water under the assize. and there must be inquiry as to richard revel, who was sheriff when the said robert escaped - - from his custody. . osbert of reterth appeals odo hay, for that he assaulted him as he was returning from bodmin market, and in the king's peace and wickedly struck him on the hand with a stick, and afterwards struck him on the arm with his sword -so that he is maimed; and this he offers to prove as a maimed man. and odo defends it all. and that [osbert] is maimed is testified by knights sent to see him. judgment: let [odo] purge himself by ordeal of iron because of this appeal. . wulward of wadebridge was burgled. and odo hay, lawrence smith, osbert mediciner, and benet his son, william miller, robert of frokemere, and maud his sister, are suspected of the burglary by the jurors of the hundred and by the four nearest townships, which are sworn. let the males purge themselves by water under the assize, and maud by ordeal of - - iron. roger morand fled for that burglary, and he was living in bodmin, [which town is] therefore in mercy. . robert, godfrey's son, appeals philip, william's son, for that he came on the land of [robert's] lord richard fortescue, and wickedly and in the king's peace and in robbery took eight oxen and a mantle, cape, and sword, and carried them off; and this he offers to prove against him by his body under award of the court. and philip comes and defends all of it word by word. it is considered that the appeal is null, for the oxen were not robert's, but - - richard's. the jurors being asked, say that [philip] did no robbery to [richard]. so richard fortescue is in mercy for a false appeal, and let philip be quit. . peter burel appeals anketil of wingely, for that he wickedly in the king's peace assaulted him in the field where he was pasturing his oxen, and beat him, and gave him - - four wounds in the head, and in robbery took from him an ax and a sword; and this he offers to prove against him; but he shows no wound. and anketil defends. and the county records - - that [peter] first appealed roger of tregadec of the same robbery and of the same wounds. therefore it is considered that the appeal is null, and let peter be in mercy for a false appeal. his amercement, a half-mark; pledge for it, ralph giffard. . the jurors are in mercy for a silly presentment, for they presented an appeal which was made in the hundred [court] and which was not presented in the county [court]. . lucy of morwinstow appeals robert de scaccis and roland -of kellio and peter of lancarf of robbing her of twenty shillings and eight pence, and of a cloak, price a half-mark. and it is testified by the jurors that they did not rob her, and that she is a hireling, and that a man lay with her in a garden, and the boys hooted her, so that she left her cloak, and the boys took it and pawned it for two gallons of wine. it is considered that robert do give her three pence in respect of the wine and do go quit. and roland and peter neither come nor essoin [present an excuse for nonappearance] themselves. and their pledges were nicholas brother of alfred of bodmin and herbert reeve of bodmin, who are therefore in mercy. . osbert church accused of the death of roland, son of reginald of kennel, on the appeal of the said reginald, was detained in gaol and defends word by word. and reginald - - offers proof by the body of a certain freeman, arkald, who has his [reginald's] daughter to wife, who is to prove in his stead, since he has passed the age of sixty. osbert church defends all of it. the knights of the hundred of penwith say that they suspect him of the said death. the - - knights of kerrier [hundred] say the same. the knights of penwith [hundred] say the same. the knights of pyder [hundred] say the same. judgment: let him purge himself by water, and reginald is in mercy, for he does not allege sight and hearing, and because he has withdrawn himself, and put another in his place, who neither saw nor heard and yet - - offered to prove it, and so let both reginald and arkald be in mercy. osbert is purged by the water. osbert's pledges: henry little, henry of penant, ossulf black, roger of trevithow, john of glin, ralph of trelew. . roger of wick [was] appealed of the death of brictmer by the appeal of hawise, brictmer's wife, and was captured in flight, as say john of winielton and ralph of mertherin, but the flight is not testified by the hundred. kerier [hundred] says the same. penwith [hundred] says the same. so is considered that he purge himself by water. he is purged. roger's pledges: ralph of trelew, ogier of kurnick, richard, simon's son, alfred malvoisin, everwin of lande, john of kewerion, warin of tiwardeni, baldwin tirel, roger of - - trevithow, john of glin, william of dunham, thomas, osbert's - - son. . richard, william's son, appealed luke, richard's son, and william, the servant of alan clerk, of robbery and of binding him. the appellees have not come nor essoined themselves. the county together with the wapentake says that they were appealed, not of the king's peace, but of the sheriff's peace, so that the suit was and is in the county [court], and therefore they were not attached to come before the justices. therefore the jurors are in mercy for presenting what they ought not to have presented. . william, hawise's son, appeals richard, son of robert of somercotes, for that he came in the king's peace to his house at somercotes, and broke his house and robbed him of.[an abrasion] shillings, and a cape and surcoat, and twenty-five fowls, and twenty shillings worth of corn [grain], and wounded him in the head with the wound that he shows; and this he offers to prove against him as the court shall consider etc. and richard comes and defends the breach of the king's peace and the housebreaking, wounding and -robbery, but confesses that he came to a certain house, which william asserts to be his [william's], as to his -[richard's] own proper house, which escheated into his hand on the death of roger his villein, and there he took certain chattels which were his villein's and which on his villein's - - death were his [richard's] own: to wit, five thraves of oats, thirteen sheaves of barley, and twenty-five fowls; and he offers the king twenty shillings for an inquest [to find] whether this be so or no. and william says that richard says this unjustly, for the said roger never had that house nor dwelt therein, nor were those chattels roger's, but he [william] held that house as his own, and the chattels there seized were his. the jurors being questioned whether roger did thus hold the house of richard in villeinage, say, yes. also the coroners and the whole county testify that [william] never showed any wound until now; and the wound that he now shows is of recent date. therefore it is considered that the appeal is null, and let richard go quit, and william be in mercy for his false claim. pledges for the amercement, gilbert, robert's son, and richard, haldeng's son. . astin of wispington appeals simon of edlington, for that he wickedly and in the king's peace assaulted him in his meadows and put out his eye, so that he is maimed of that eye; and this he offers to prove etc. simon comes and defends all of it word by word. and the coroners and the county testify that hitherto the appeal has been duly sued, at first by [astin's] wife, and then by [astin himself]. judgment: let law be made, and let it be in the election of the appellee whether he or astin shall carry the iron. he has chosen that astin shall carry it. astin has waged the law. simon's pledges, william of land and his frankpledge and ralph of stures. astin's pledges, roger thorpe, osgot of wispington, and william, joel's brother. afterwards came [the appellor and appellee] and both put themselves in mercy. . gilbert of willingham appeals gilbert, geoffrey's son, for that he in the king's peace and wickedly set fire to his house and burned it, so that after the setting fire [the appellor] went forth and raised hue and cry so that his neighbors and the township of willingham came thither, and he showed them [the appellee] in flight and therefore they pursued him with the cry; and this he offers etc. and the appellee defends all of it word by word etc. and the - - neighbors and the township of willingham being questioned, say that they never saw him in flight, and that [the appellor] never showed him to them. likewise the jurors say that in their belief he appeals him out of spite rather than for just cause. therefore it is considered that the appeal is null, and the appellee is in mercy for a half-mark [ s.]. pledge for the amercement, robert walo. . william burel appeals walter morcock, for that he in the king's peace so struck and beat margery, [william's] wife, that he killed the child in her womb, and besides this beat her and drew blood. and william of manby, the beadle, testifies that he saw the wound while fresh and the blood in the wapentake [court]. and the serjeant of the riding and the coroners and the twelve knights testify that they never saw wound nor blood. and so it is considered that the appeal is null, for one part of the appeal being quashed, it is quashed altogether, and william burel is in mercy. let him be in custody. and william manby is in mercy for false testimony. pledges for william's amercement, richard of bilsby, elias of welton. . william marshall fled for the death of sigerid, denis' mother, whereof denis appeals him; and he was in the prior of sixhills' frankpledge of sixhills, which is in mercy, and his chattels were two cows and one bullock. afterwards came the prior of sixhills and undertook to have william to right before the justices. and he came, and then denis, sigerid's son, came and appealed him of his mother's death. and it was testified that [denis] had an elder brother, and that nine years are past since [sigerid] died, and that she lived almost a year after she was wounded, and that denis never appealed [william] before now. therefore it is - - considered that the appeal is null and that denis be in mercy. pledge for the amercement, his father, ralph, son of denis. . alice, wife of geoffrey of carlby, appealed william, roger's son, and william his son and roger his son of the death of william her brother. and alice does not prosecute.therefore let her be in mercy and let her be arrested. to -judgment against the sheriff who did not imprison the said persons who were attached, whereas they are appealed of homicide, and to judgment also as to a writ which he ought to produce. . hawise, thurstan's daughter, appeals walter of croxby -and william miller of the death of her father and of a wound -given to herself. and she has a husband, robert franchenay, - - who will not stir in the matter. therefore it is considered that the appeal is null, for a woman has no appeal against anyone save for the death of her husband or for rape. and - - let robert be in mercy on his wife's account, for a half-mark [ s.], and let the appellees be quit. pledge for robert's amercement, richard dean of mareham, who has lay property. wapentake of aswardhurn. . juliana of creeton appeals adam of merle of battery and robbery. and adam does not come, but essoins himself as being in the king's service beyond seas. and for that it is not allowed to anyone appealed of the king's peace to leave the land without a warrant before he has been before justices learned in the law, his pledges are in mercy: to wit, segar of arceles, alan of renington, and robert of searby. adam himself is excused from the plea by the essoin that he has cast. . thomas, leofwin's son, appeals alan harvester, for that he in the king's peace assaulted him as he went on the highway, and with his force carried him into alan's house, and struck him on the arm so that he broke a small bone of his arm, whereby he is maimed, and robbed him of his cape and his knife, and held him while eimma, [alan's] wife, cut off one of his testicles and ralph pilate the other, and when he was thus dismembered and ill-treated, the said alan with his force carried him back into the road, whereupon as soon as might be he raised the cry, and the neighbors came to the cry, and saw him thus ill-treated, and then at once he sent to the king's serjeant, who came and found, so [thomas] says, the robbed things in alan's house and then as soon as might be [thomas] went to the wapentake [court] and - - to the county [court] and showed all this. so inquiry is made of the king's sergeant, who testifies that he came to alan's house and there found the knife and the testicles in a little cup, but found not the cape. also the whole county testifies that [thomas] never before now appealed alan of breaking a bone. and so it is considered that the appeal is null, and that [thomas] be in mercy, and that the other appellees be quit. thomas also appeals emma, alan's wife, for that she in the peace aforesaid after he was placed in her lord's house cut off one of his testicles. he also appeals ralph pilate, for that he cut off the other of his - - testicles. . the twelve jurors presented in their verdict that austin, rumfar's son, appealed ralph gille of the death of his brother, so that [ralph] fled, and that william, rumfar's son, appealed benet carter of the same death, and ranulf, ralph's son, appealed hugh of hyckham of the same death and baldwin of elsham and ralph hoth and colegrim as accessories. and the coroners by their rolls testify this also. but the county records otherwise, namely, that the said ralph gille, benet, hugh, baldwin, ralph [hoth] and gocegrim were all appealed by ranulf, ralph's son, and by no one else, so that four of them, to wit, ralph gille, hugh, benet and colegrim, were outlawed at the suit of the said ranulf, and that the said persons were not appealed by anyone other than the said ranulf. and for that the county could not [be heard to] contradict the coroners and the said jurors who have said their say upon oath, it is considered etc. thereupon the county forestalled the judgment and before judgment was pronounced made fine with pounds [ , s.] [to be collected throughout the county], franchises excepted. . hereward, william's son, appeals walter, hugh's son, for that he in the king's peace assaulted him and wounded him in -the arm with an iron fork and gave him another wound in the head; and this he offers to prove by his body as the court shall consider. and walter defends all of it by his body. and it is testified by the coroners and by the whole county that hereward showed his wounds at the proper time and has made sufficient suit. therefore it is considered that there be battle. walter's pledges, peter of gosberton church, and richard hereward's son. hereward's pledges, william his father and the prior of pinchbeck. let them come armed in the quindene of st. swithin at leicester. . william gering appeals william cook of imprisonment, to wit, that he with his force in the king's peace and wickedly, while [gering] was in the service of his lord guy at the forge, took him and led him to freiston to the house of william longchamp, and there kept him in prison so that his lord could not get him replevied; and this he offers to prove as the court shall consider. and william cook comes and defends the felony and imprisonment, but confesses that whereas he had sent his lord's servants to seize the beasts of the said guy on account of a certain amercement which [guy] had incurred in the court of [cook's] lord [longchamp], and which though often summoned he had refused to pay, [gering] came and rescued the beasts that had been seized and wounded a servant of [cook's] lord, who had been sent to seize them, whereupon [cook] arrested [gering] until -he should find pledges to stand to right touching both the wounding and the rescue, and when [gering's] lord [guy] came -for him, [cook] offered to let him be replevied, but this [guy] refused, and afterwards he repeated the offer before the king's serjeant, but even then it was refused, and then [cook] let [gering] go without taking security. and guy says that he puts himself upon the wapentake, whether the imprisonment took place in manner aforesaid, and whether he [guy] at once showed the matter to the king's serjeant, or no. and william cook does the same. and the wapentake says that the alleged [imprisonment] took place in lent, and guy did not show the matter to the wapentake until a fortnight before st. botulph's day. and the county together with the coroners says that they never heard the suit in their court. therefore it is considered that the appeal is null, and guy is in mercy. and let william and those who are appealed as accessories go quit. . the jurors say that andrew, sureman's son, appealed peter, leofwin's son, thomas squire and william oildene of robbery. and he does not prosecute. so he and stephen despine and baldwin long are in mercy, and the appellees go without day. afterwards comes andrew and says that [the appellees] imprisoned him by the order of william malesoures in the said william's house, so that he sent to the sheriff that the sheriff might deliver him, whereupon the sheriff sent his serjeant and others thither, who on coming there found him imprisoned and delivered him and he produces witnesses, to wit, nicholas portehors and hugh, thurkill's son, who testify that they found him imprisoned, and he vouches the sheriff to warrant this. and the sheriff, on being questioned, says that in truth he sent thither four lawful men with the serjeant on a complaint made by nicholas portehors on andrew's behalf. and those who were sent thither by the sheriff testify that they found him at liberty and disporting himself in william's house. therefore it is considered that the appeal is null [and andrew is in mercy] for his false complaint and nicholas portehors and hugh, thurkill's son, are in mercy for false testimony. andrew and hugh are to be in custody until they have found pledges [for their amercement]. . the jurors say that geoffrey cardun has levied new customs other than he ought and other than have been usual, to wit, in taking from every cart crossing his land at winwick with eels, one stick of eels, and from a cart with greenfish, one greenfish, and from a cart with salmon, half a salmon, and from a cart with herrings, five herrings, whereas he ought to take no custom for anything save for salt crossing his land, to wit, for a cartload, one bole of salt, and in that case the salter ought to have a loaf in return for the salt, and also if the salter's cart breaks down, the salter's horses ought to have pasture on geoffrey's land without challenge while he repairs his cart. and geoffrey comes and confesses that he takes the said customs, and ought to take them, for he and his ancestors have taken them from the conquest of england, and he puts himself on the grand assize of our lord the king, and craves that a recognition be made whether he ought to take those customs or no. and afterwards he offers the king twenty shillings that this action may be put before sir geoffrey fitzpeter [the justiciar]. pledge for the twenty shillings, richard of hinton. . the jurors say that hugh, son of walter priest, was outlawed for the death of roger rombald at the suit of robert rombald, and afterwards returned under the [protection of the] king's writ, and afterwards was outlawed for the same death on the appeal of geoffrey, thurstan's son. the county therefore is asked by what warrant they outlawed the same man twice for the same death, and says that of a truth in king richard's time the said hugh was - - outlawed at the suit of one lucy, sister of the said roger, so that for a long time afterwards he hid himself; and at length he came into the county [court] and produced letters of sir geoffrey fitzpeter in the form following: "g. fitzpeter etc. to the sheriff of northamptonshire, greeting, know thou that the king hath pardoned to hugh, son of the priest of grafton, his flight and the outlawry adjudged to him for the death of a certain slain man, and hath signified to us by his letters that we be aiding to the said hugh in reestablishing the peace between him and the kinsfolk of the slain; wherefore we command thee that thou be aiding to the said hugh in making the peace aforesaid, and do us to wit by thy letters under seal what thou hast done in this matter, since we are bound to signify the same to the king. in witness etc. by the king's writ from beyond seas." and the said letters being read in full county [court] the county told the said hugh that he must find pledges that he would be in the king's peace, and he went away to find pledges, and afterwards did not appear. but the kinsfolk of the slain, having heard that hugh had returned after his outlawry, came to the next county [court] and robert rombald produced geoffrey, thurstan's son, who said that if he saw the said hugh he would sue against him the death of the said roger, who was [his kinsman]. and the county showed him how hugh had brought the justiciar's letters pardoning him the flight and outlawry, and that he was to find pledges to stand to the king's peace, but had not returned. whereupon the king's serjeant was ordered to seek hugh and bring him to a later county [court]. and at a later county [court] geoffrey offered himself against hugh, and hugh did not appear; whereupon the king's serjeant being questioned said that he had not found him, and the county advised [geoffrey] to come to another county [court], because if in the meantime hugh could be found, he would be brought to the county [court]. then at the third county [court] the said geoffrey offered himself, and it was testified by the serjeant that hugh had not yet been found, wherefore the county said that as hugh would not appear to the king's peace, he must bear the wolf's head as he had done before. to judgment against the coroners and the twelve jurors. . robert of herthale, arrested for having in self-defense slain roger, swein's son, who had slain five men in a fit of madness, is committed to the sheriff that he may be in custody as before, for the king must be consulted about this matter. the chattels of him who killed the five men were worth two shillings, for which richard [the sheriff must account]. . sibil, engelard's daughter, appeals ralph of sandford, for that he in the king's peace and wickedly and in breach of the peace given to her in the county [court] by the sheriff, came to the house of her lord [or husband] and broke her chests and carried off the chattels, and so treated her that he slew the child that was living in her womb. afterwards she came and said that they had made a compromise and she withdrew herself, for they have agreed that ralph shall satisfy her for the loss of the chattels upon the view and by the appraisement of lawful men; and ralph has assented to this. . william pipin slew william [or john] guldeneman and fled. he had no chattels. let him be exacted. and hugh fuller was taken for this death and put in gaol because the said john [or william] was slain in his house. and hugh gives to the king his chattels which were taken with him, that he may have an inquest [to find] whether he be guilty thereof or no. the jurors say that he is not guilty, and so let him go quit thereof. and william picot is in mercy for having sold hugh's chattels before he was convicted of the death, and for having sold them at an undervalue, for he sold them, as he says, for three shillings, and the jurors - - say that they were worth seventeen shillings, for which william picot and those who were his fellows ought to account. and william says that the chattels were sold by the advice of his fellows, and his fellows deny this. . robert white slew walter of hugeford and fled. the jurors say that he was outlawed for the death, and the county and the coroners say that he was not outlawed, because no one sued against him. and because the jurors cannot [be heard to] contradict the county and the coroners, therefore they are in mercy, and let robert be exacted. his chattels were [worth] fifteen shillings, for which r. of ambresleigh, the sheriff, must account. . elyas of lilleshall fled to church for the death of a woman slain at lilleshall. he had no chattels. he confessed the death and abjured the realm. alice crithecreche and eva of lilleshall and aldith and mabel, geoffrey and robert of lilleshall, and peter of hopton were taken for the death of the said woman slain at lilleshall. and alice, at once after the death, fled to the county of stafford with some of the chattels of the slain, so it is said, and was taken in that county and brought back into shropshire and there, as the king's serjeant and many knights and lawful men of the county testify, in their presence she said, that at night - - she heard a tumult in the house of the slain; whereupon she came to the door and looked in, and saw through the middle of the doorway four men in the house, and they came out and - - caught her, and threatened to kill her unless she would conceal them; and so they gave her the pelf [booty] that she had. and when she came before the [itinerant] justices she denied all this. therefore she has deserved death, but by way of dispensation [the sentence is mitigated, so] let her -eyes be torn out. the others are not suspected, therefore let them be under pledges. . william, john's son, appeals walter, son of ralph hose, for that when [william's] lord guy of shawbury and [william] had come from attending the pleas of our lord the king in the county court of shropshire, there came five men in the forest of haughmond and there in the king's peace and wickedly assaulted his lord guy, and so that [walter], who was the fourth among those five, wounded guy and was accessory with the others in force as aid so that guy his lord was killed, and after having wounded his lord he [walter] came to william and held him so that he could not aid his lord; and this he offers to deraign [determine by - - personal combat] against him as the court shall consider. and walter comes and defends all of it word by word as the court etc. it is considered that there be battle [combat] between them. the battle [combat] is waged. day is given them, at oxford on the morrow of the octave of all saints, and then let them come armed. and ralph [walter's father] gives the king a half-mark that he may have the custody of his son, [for which sum] the pledges are john of knighton and reiner of acton, and he is committed to the custody of ralph hose, reiner of acton, john of knighton, reginald of leigh, adam of mcuklestone, william of bromley, stephen of ackleton, eudo of mark. . robert, son of robert of ferrers, appeals ranulf of tattesworth, for that he came into robert's garden and wickedly and in the king's peace assaulted robert's man roger, and beat and wounded him so that his life was despaired of, and robbed him [roger?] of a cloak, a sword, a bow and arrows: and the said roger offers to prove this by his body as the court shall consider. and ranulf comes and defends the whole of it, word by word, and offers the king one mark of silver that he may have an inquest of lawful knights [to say] whether he be guilty thereof or no. also he says that roger has never until now appealed him of this, and prays that this be allowed in his favor. [ranulf's] offering is accepted. the jurors say that in truth there was some quarrel between robert's gardener, osmund, and some footboys, but ranulf was not there, and they do not suspect him of any robbery or any tort done to robert or to osmund. also the county records that the knights who on robert's complaint were sent to view osmund's wounds found him unwounded and found no one else complaining, and that robert in his plaint spoke of osmund his gardener and never of roger, and that roger never came to the county [court] to make this appeal. therefore it is considered that ranulf be quit, and robert and roger in mercy. pledge for ranulf's mark, philip of draycot. pledges for the amercement, henry of hungerhill, and richard meverell. pledge for roger, the said robert. . one l. is suspected by the jurors of being present when reinild of hemchurch was slain, and of having aided and counseled her death. and she defends. therefore let her purge herself by the ordeal of iron; but as she is ill, the ordeal is respited until her recovery. . andrew of burwarton is suspected by the jurors of the death of one hervey, for that he concealed himself because of that death. therefore let him purge himself by ordeal of water. . godith, formerly wife of walter palmer, appeals richard of stonall, for that he in the king's peace wickedly and by night with his force came to her house and bound her and her husband, and afterwards slew the said walter her husband; and this she offers to prove against him as wife of the slain as the court shall consider. and he defends all of it. and the jurors and the whole neighborhood suspect him of that death. and so it is considered that he purge himself by ordeal of iron for he has elected to bear the iron. . the jurors of oflow hundred say that the bailiffs of tamworth have unjustly taken toll from the knights of staffordshire, to wit, for their oxen and other beasts. and the men of lichfield complain that likewise they have taken toll from them, more especially in staffordshire. and the bailiffs deny that they take anything from the knights in staffordshire. and for that they cannot [be heard to] contradict the jurors, the bailiffs are in mercy. as to the men of lichfield, [the tamworth bailiffs] say that they ought to have, and in king henry's time had, toll of them, more especially of the merchants, as well in staffordshire as in warwickshire. and the burgesses of lichfield offer the king a half-mark for an inquest by the county. and the county records that in king henry's time the men of - - lichfield did not pay toll in staffordshire. therefore the bailiffs are in mercy. chapter the times - tenures in land were free or not free; the free tenures were ( ) military service, ( ) grand serjeanty, ( ) free socage, and ( ) frankalmoin. for military service, in general, every man knows his place, knows how many days he must fight and with what arms. but this institution is becoming unstable. sometimes a substantial payment called scutage is taken instead. as feudalism became less military and less rough, daughters were permitted to inherit fiefs. it became customary to divide the property of a deceased man without a son equally among his daughters. lords were receiving homage from all the daughters and thereby acquiring marriage rights over all of them. also, if a son predeceased his father but left a child, that child would succeed to the father's land in the same way that the deceased would have. the ill, the aged, women, and ecclesiastics could send a substitute to military service. there are certain reliefs, and wardship and marriage fees associated with military tenure. grand serjeanty was various and included carrying the banner of the king, or his lance, carrying his sword at his coronation, carrying his letters, summoning his barons, conveying his treasure from place to place, being his steward, marshal, chamberlain or constable. many serjeanties were connected with warfare, such as light horsemen, infantry, bowmen, captains of the national militia, leading the infantry of certain hundreds, military transport, carriage of armour on a horse, munitions of war such as lances, arrows or knives. a man could hold by serjeanty of a mesne lord, such as presiding over the lord's court, riding with the lord or on his errands, feeding his hounds, or supplying bows and arrows. tenure in free socage may involve a nominal service to a lord, such as the gift every year of a rose, a sparrowhawk, a pair of gloves, a pair of gilt spurs, or a pound of pepper, or of incense or of wax. tenure in socage may originate by a gift of land to a daughter or younger son, or to some dependant for past services, or a purchase with a gross sum. there were no wardship or marriage or other fees associated with a tenure in free socage. tenure in frankalmoin ["free alms" for the poor to relieve the king of this burden] was land held by ecclesiastics in right of their churches and of god. this service was spiritual, often for saying prayers for the deceased donor so that he could go from purgatory to heaven, and it was an indefinite service. in general, land could be alienated or subinfeudated without the lord's consent and thus come to be held in another tenure. land escheated [returned] to the lord if there were no heirs, or in case of felony after the king has possessed and taken the profits of the land for year and day. in case of treason, a tenant's lands were all forfeited to the king. the tenure of socage obligated the tenant to fixed agricultural services, for which a nominal payment called a "quit rent" could be substituted. socage did not entail rights of wardship or marriage. socage grew at the expense of the other tenures. the unfree tenure was villein tenure. villeins were tied to a piece of land and were bound to perform for their lord indefinite agricultural services and could be physically recovered in case they left the land. villeins were subject to a lord's court and were not protected by the king's court. the major types of freemen were: nobles, knights, ecclesiastics, jews, and women. the nobles were the earls and barons. they did not have noble blood, but were tenants in chief of certain land by the king's will. the king consulted them and they obeyed his summons and gave him counsel. they were entitled to be judged in cases of treason or felony, by their peers, that is, each other. lower in status are the knights. they were active in royal justice, making thedecisions in the most important cases. ecclesiatics were bishops; abbots; and monks, nuns, and friars, who had taken vows of poverty and obedience; and clergy. the difference between a monk and a friar was a cloistered life versus an active life. jews came to england after the conquest and were under the special protection of the king. all they had belonged to the king. a jew could lend money for interest, which was disallowed for christians. jews were subject to the courts of justice, but could also settle their disputes by their own hebrew law, they were expelled in . women could hold land, even by military tenure, own chattels typically beasts and coins], make a will, make a contract, and could sue and be sued. they could give evidence in court, but could not be jurors or judges. women who had husbands had to defer to them in certain property matters. nobles, doctors, and attorneys wore tunics to the ankle and an over-tunic almost as long, which was lined with fur and had long sleeves. a hood was attached to it. a man's hair was short and curled, with bangs on the forehead. the tunic of merchants and middle class men reached to the calf. the laborer wore a tunic that reached to the knee, cloth stockings, and shoes of heavy felt, cloth, or perhaps leather. ladies wore a full-length tunic with moderate fullness in the skirt, and a low belt, and tight sleeves. a lady's hair was concealed by a round hat tied on the top of her head. over her tunic, she wore a cloak. monks and nuns wore long black robes with hoods. baron landholders' semi-fortified stone manor houses were improved and extended. many had been licensed to be embattled or crenelated [wall indented at top with shooting spaces]. they were usually quadrangular around a central courtyard. the central and largest room was the hall, where people ate and slept. the hall had a hearth for fire in the center of the room if the hall was one story high. sometimes the lord had a room with a sleeping loft above it. if the hall was more than one story high, it had a fireplace at one end so that the smoke could go up and out the roof. other rooms each had a fireplace. there were small windows around the top story and on the inside of the courtyard. they were usually covered with oiled paper. windows of large houses were of opaque glass supplied by a glassmaking craft. the glass was thick, uneven, distorted, and greenish in color. the walls were plastered. the floor was wood with some carpets. roofs were timbered with horizontal beams. many roofs had tiles supplied by the tile craft, which baked the tiles in kilns or over an open fire. because of the hazard of fire, the kitchen was often a separate building, with a covered way connecting it to the hall. it had one or two open fires in fireplaces, and ovens. sometimes there was a separate room for a dairy. furniture included heavy wood armchairs for the lord and lady, stools, benches, trestle tables, chests, and cupboards. outside was an enclosed garden with cabbages, peas, beans, beetroots, onions, garlic, leeks, lettuce, watercress, hops, herbs, nut trees for oil, some flowers, and a fish pond and well. bees were kept for their honey. the barons now managed and developed their estates to be as productive as possible, often using the successful management techniques of church estates. they kept records of their fields, tenants, and services owed by each tenant, and duties of the manor officers, such as supervision of the ploughing and harrowing. annually, the manor's profit or loss for the year was calculated. most manors were self-supporting except that iron for tools and horseshoes and salt for curing usually had to be obtained elsewhere. wine, tar, canvas and millstones were imports from other countries and bought at fairs, as was fish, furs, spices, and silks. sheep were kept in such large numbers that they were susceptible to a new disease "scab". every great household was bound to give alms. manors averaged about ten miles distance between each other, the land in between being unused and called "wasteland". statutes after a period of civil war proscribing the retaking of land discouraged the enclosure of waste land. husbandry land held in villeinage was inherited according to the custom of its manor as administered in the lord's manorial court. (the royal courts had jurisdiction of land held in socage. i.e. free tenure.) the heir could be the oldest son, the youngest son, a son chosen by the father to succeed him, or divided among the sons. if there were no sons, one of the daughters inherited the land or it was divided among all the daughters. if there were no heirs, the land went back to the lord. land could not be sold or alienated so that the heir did not inherit, without the consent of the lord. manorial custom also determined the manner of descent of goods and chattels. a common custom for a villein was that his best beast go to his lord as heriot and his second best beast go to the parish priest as mortuary. then, after debts and burial expenses had been paid, a number of tools and utensils needed for husbandry and housekeeping went with the land to its heir. these were the "heirlooms", `loom" in old english meaning tool. this usually included, for a holding of more than acres, a coulter, a plowshare, a yoke, a cart, an axe, a cauldron, a pan, a dish, and a cask. finally, the remaining goods and chattels went one-third to the widow, one-third to his children except for the heir to the land, and one-third according to the deceased's last will and testament. a son might take his share before the death of his father in order to go out into the world and seek his fortune, for instance in the church or military, upon which event the father had to pay his lord a fine for his son permanently leaving the manor. many country boys became bound apprentices in nearby boroughs or farm laborers. others married heiresses of land. by the custom of "curtesy of the nation", he held this land for his lifetime if he had a child born of the marriage, even if his wife predeceased him. if a man remained on the family land, he had no right to marry. often, there were agreements over land holdings that were recorded in the manor books. for instance, it was common for a father or mother to hand his or her holding over to the heir in exchange for sustenance in old age. an heir usually did not marry until after receiving his land. manorial custom determined whether a father's consent was necessary for a son or daughter to marry, the nature of any agreement ("trothplight") between the families as to lands and goods brought to the marriage, the amount of her marriage portion, and the son's endowment (her "dower") of lands and goods promised to the bride at the church door that would provide for her support after his death. if dower was not specified, it was understood to be one-third of all lands and tenements. at the next hallmote, if manorial custom required it, the son would pay a fine to his lord for entry onto the land and for license to marry. from , priests taught that betrothal and consummation constituted irrevocable marriage. some villeins bought out their servitude by paying a substitute to do his service or paying his lord a firm (from hence, the words farm and farmer) sum to hire an agricultural laborer in his place. this made it possible for a farm laborer to till one continuous piece of land instead of scattered strips. looms were now mounted with two bars. women did embroidery. the clothing of most people was made at home, even sandals. the village tanner and bootmaker supplied long pieces of soft leather for more protection than sandals. tanning mills replaced some hand labor. the professional hunter of wolves, lynx, or otters supplied head coverings. every village had a smith and possibly a carpenter for construction of ploughs and carts. the smith obtained coal from coal fields for heating the metal he worked. horse harnesses were homemade from hair and hemp. there were watermills and/or windmills for grinding grain, for malt, and/or for fulling cloth. the position of the sails of the windmills was changed by manual labor when the direction of the wind changed. most men wore a knife because of the prevalence of murder and robbery. it was an every day event for a murderer to flee to sanctuary in a church, which would then be surrounded by his pursuers while the coroner was summoned. usually, the fugitive would confess, pay compensation, and agree to leave the nation permanently. county courts were the center of decision-making regarding judicial, fiscal, military, and general administrative matters. the writs for the conservation of the peace, directing the taking of the oath, the pursuit of malefactors, and the observance of watch and ward, were proclaimed in full county court; attachments were made in obedience to them in the county court. the county offices were: sheriff, coroner, escheator, and constable or bailiff. there were sheriffs for counties. the sheriff was usually a substantial landholder and a knight who had been prominent in the local court. he usually had a castle in which he kept persons he arrested. he no longer bought his office and collected certain rents for himself, but was a salaried political appointee of the king. he employed a deputy or undersheriff, who was an attorney, and clerks. if there was civil commotion or contempt of royal authority, the sheriff of the county had power to raise a posse of armed men to restore order. the coroner watched the interests of the crown and had duties in sudden deaths, treasure trove, and shipwreck cases. there were about five coroners per county and they served for a number of years. they were chosen by the county court. the escheator was appointed annually by the treasurer to administer the crown's rights in feudal land, which until had been the responsibility of the sheriff. he was usually chosen from the local gentry. the constable and bailiff operated at the hundred and parish [the geographical area of a church's members] level to detect crime and keep the peace. they assisted sheriffs and justices of the peace, organized watches for criminals and vagrants at the village level, and raised the hue and cry along the highway and from village to village in pursuit of offenders who had committed felony or robbery. the constables also kept the royal castles; they recruited, fed, and commanded the castle garrison. county knights served sheriffs, coroners, escheators, and justices on special royal commissions of gaol-delivery. they sat in judgment in the county court at its monthly meetings, attended the two great annual assemblies when the lord, knights and freeholders of the county gathered to meet the itinerant justices who came escorted by the sheriff and weapon bearers. they served on the committees which reviewed the presentments of the hundreds and village, and carried the record of the county court to westminster when summoned there by the kings' justices. they served on the grand assize. as elected representatives of their fellow knights of the county, they assessed any taxes due from each hundred. election might be by nomination by the sheriff from a fixed list, by choice, or in rotation. they investigated and reported on local abuses and grievances. the king's justices and council often called on them to answer questions put to them on oath. in the villages, humbler freeholders and sokemen were elected to assess the village taxes. six villeins answered for the village's offenses before the royal itinerant justice. reading and writing in the english language was taught. the use of english ceased to be a mark of vulgarity. in the first governmental document was issued in english as well as in latin and french, and later latin started falling into disuse. boys of noblemen were taught reading, writing, latin, a musical instrument, athletics, riding, and gentlemanly conduct. girls were taught reading, writing, music, dancing, and perhaps household nursing and first aid, spinning, embroidery, and gardening. girls of high social position were also taught riding and hawking. grammar schools taught, in latin, grammar, dialectic (ascertaining word meaning by looking at its origin, its sound (e.g. soft or harsh), its power (e.g. robust and strong sound), its inflection, and its order; and avoiding obscurity and ambiguity in statements), and rhetoric [art of public speaking, oratory, and debate]. the teacher possessed the only complete copy of the latin text, and most of the school work was done orally. though books were few and precious, the students read several latin works. girls and boys of high social position usually had private teachers for grammar school, while boys of lower classes were sponsored at grammar schools such as those at oxford. discipline was maintained by the birch or rod. there was no examination for admission as an undergraduate to oxford, but a knowledge of latin with some skill in speaking latin was a necessary background. the students came from all backgrounds. some had their expenses paid by their parents, while others had the patronage of a churchman, a religious house, or a wealthy layman. they studied the "liberal arts", which derived its name from "liber" or free, because they were for the free men of rome rather than for the economic purposes of those who had to work. the works of greek authors such as aristotle were now available; the european monk thomas aquinas had edited aristotle's works to reconcile them to church doctrine. he opined that man's intellectual use of reason did not conflict with the religious belief that revelation came only from god, because reason was given to man by god. he shared aristotle's belief that the earth was a sphere, and that the celestial bodies moved around it in perfect circles. latin learning had already been absorbed without detriment to the church. a student at oxford would become a master after graduating from a seven year course of study of the seven liberal arts: [grammar, rhetoric (the source of law), aristotelian logic (which differentiates the true from the false), arithmetic, including fractions and ratios, (the foundation of order), geometry, including methods of finding the length of lines, the area of surfaces, and the volume of solids, (the science of measurement), astronomy (the most noble of the sciences because it is connected with divinity and theology), music and also aristotle's philosophy of physics, metaphysics, and ethics; and then lecturing and leading disputations for two years. he also had to write a thesis on some chosen subject and defend it against the faculty. a master's degree gave one the right to teach. further study for four years led to a doctorate in one of the professions: theology and canon or civil law. there were about , students in oxford. they drank, played dice, quarreled a lot and begged at street corners. there were mob fights between students from the north and students from the south and between students and townsmen. but when the mayor of oxford hanged two students accused of being involved in the killing of a townswoman, many masters and students left for cambridge. in , a charter created the office of chancellor of the university at oxford. he was responsible for law and order and, through his court, could fine, imprison, and excommunicate offenders and expel undesirables such as prostitutes from the town. he had authority over all crimes involving scholars, except murder and mayhem. the chancellor summoned and presided over meetings of the masters and came to be elected by indirect vote by the masters who had schools, usually no more than a room or hall with a central hearth which was hired for lectures. students paid for meals there. corners of the room were often partitioned off for private study. at night, some students slept on the straw on the floor. six hours of sleep were considered sufficient. in , the king ordered that every student must have his name on the roll of a master and the masters had to keep a list of those attending his lectures. in the friars established their chief school at oxford. they were bound by oaths of poverty, obedience, and chastity, but were not confined within the walls of a monastery. they walked barefoot from place to lace preaching. they begged for their food and lodgings. they replaced monks, who had become self-indulgent, as the most vital spiritual force among the people. the first college was founded in by walter de merton, former chancellor to the king, at oxford. a college had the living arrangements of a hall, with the addition of monastic-type rules. a warden and about scholars lived and ate meals together in the college buildings. merton college's founding documents provided that: [ ] "the house shall be called the house of the scholars of merton, and it shall be the residence of the scholars forever. [ ] there shall be a constant succession of scholars devoted to the study of letters, who shall be bound to employ themselves in the study of arts or philosophy, the canons or theology. let there also be one member of the collegiate body, who shall be a grammarian, and must entirely devote himself to the study of grammar; let him have the care of the students in grammar, and to him also let the more advanced have recourse without a blush, when doubts arise in their faculty. [ ] there is to be one person in every chamber, where scholars are resident, of more mature age than the others, who is to make his report of their morals and advancement in learning to the warden [ ] the scholars who are appointed to the duty of studying in the house are to have a common table, and a dress as nearly alike as possible. [ ] the members of the college must all be present together, as far as their leisure serves, at the canonical hours and celebration of masses on holy and other days. [ ] the scholars are to have a reader at meals, and in eating together they are to observe silence, and to listen to what is read. in their chambers, they must abstain from noise and interruption of their fellows; and when they speak they must use the latin language. [ ] a scrutiny shall be held in the house by the warden and the seniors, and all the scholars there present, three times a year; a diligent inquiry is to be instituted into the life, conduct, morals, and progress in learning, of each and all; and what requires correction then is to be corrected, and excesses are to be visited with condign punishment. . ." educated men (and those of the s through the s), believed that the earth was the center of the universe and that it was surrounded by a giant spherical dome on which the stars were placed. the sun and moon and planets were each on a sphere around the earth that was responsible for their movements. the origin of the word "planet" meant "wanderer" because the motion of the planets changed in direction and speed. astrology explained how the position of the stars and planets influenced man and other earthly things. for instance, the position of the stars at a person's birth determined his character. the angle and therefore potency of the sun's rays influenced climate, temperament, and changes of mortal life such as disease and revolutions. unusual events such as the proximity of two planets, a comet, an eclipse, a meteor, or a nova were of great significance. a star often was thought to presage the birth of a great man or a hero. there was a propitious time to have a marriage, go on a journey, make war, and take herbal medicine or be bled by leeches, the latter of which was accompanied by religious ceremony. cure was by god, with medical practitioners only relieving suffering. but there were medical interventions such as pressure and binding were applied to bleeding. arrow and sword wounds to the skin or to any protruding intestine were washed with warm water and sewn up with needle and silk thread. ribs were spread apart by a wedge to remove arrow heads. fractured bones were splinted or encased in plaster. dislocations were remedied. hernias were trussed. bladder stones blocking urination were pushed back into the bladder or removed through an artificial opening in the bladder. surgery was performed by butchers, blacksmiths, and barbers. roger bacon, an oxford master, began the science of physics. he read arab writers on the source of light rays being from the object seen, the nature of refraction and reflection of light, and the properties of lenses. he studied the radiation of light and heat. he studied angles of reflection in plane, spherical, cylindrical, and conical mirrors, in both their concave and convex aspects. he did experiments in refraction in different media, e.g. air, water, and glass, and knew that the human cornea refracted light, and that the human eye lens was doubly convex. he comprehended the magnifying power of convex lenses and conceptualized the combination of lenses which would increase the power of vision by magnification. he realized that rays of light pass so much faster than those of sound or smell that the time is imperceptible to humans. he knew that rays of heat and sound penetrate all matter without our awareness and that opaque bodies offered resistance to passage of light rays. he knew the power of parabolic concave mirrors to cause parallel rays to converge after reflection to a focus and knew that a mirror could be produced that would start a fire at a fixed distance. these insights made it possible for jewelers and weavers to use lenses to view their work instead of glass globes full of water, which distorted all but the center of the image: "spherical aberration". the lens, whose opposite surfaces were sections of spheres, took the place of the central parts of the globe over the image. he knew about magnetic poles attracting, if different and repelling, if the same, and the relation of magnets' poles to those of the heavens and earth. he calculated the circumference of the world and the latitude and longitude of terrestrial positions. he foresaw sailing around the world. he studied the planetary motions and astronomical tables to forecast future events. he did calculations on days in a month and days in a year which later contributed to the legal definition of a leap year. his explanation of a rainbow as a result of natural laws was contrary to theological opinion that a rainbow was placed in the heavens to assure mankind that there was not to be another universal deluge. bacon began the science of chemistry when he took the empirical knowledge as to a few metals and their oxides and some of the principal alkalis, acids, and salts to the abstract level of metals as compound bodies the elements of which might be separated and recomposed and changed among the states of solid, liquid, and gas. when he studied man's physical nature, health, and disease, he opined that the usefulness of a talisman was not to bring about a physical change, but to bring the patient into a frame of mind more conducive to physical healing. he urged that there be experiments in chemistry to develop medicinal drugs. he studied different kinds of plants and the differences between arable land, forest land, pasture land, and garden land. bacon was an extreme proponent of the inductive method of finding truths, e.g. by categorizing all available facts on a certain subject to ascertain the natural laws governing it. his contribution to the development of science was abstracting the method of experiment from the concrete problem to see its bearing and importance as a universal method of research. he advocated changing education to include studies of the natural world using observation, exact measurement, and experiments. the making and selling of goods diverged e.g. as the cloth merchant severed from the tailor and the leather merchant severed from the butcher. these craftsmen formed themselves into guilds, which sought charters to require all craftsmen to belong to the guild of their craft, to have legal control of the craft work, and be able to expel any craftsman for disobedience. these guilds were composed of master craftsmen, their journeymen, and apprentices. these guilds determined the wages and working conditions of the craftsmen and petitioned the borough authorities for ordinances restraining trade, for instance by controlling the admission of outsiders to the craft, preventing foreigners from selling in the town except at fairs, limiting purchases of raw materials to suppliers within the town, forbidding night work, restricting the number of apprentices to each master craftsmen, and requiring a minimum number of years for apprenticeships. in return, these guilds assured quality control. in some boroughs, they did work for the town, such as maintaining certain defensive towers or walls of the town near their respective wards. in some boroughs, fines for infractions of these regulations were split between the guild and the government. in some towns, the merchant guilds attempted to directly regulate the craft guilds. crafts fought each other. there was a street battle with much bloodshed between the goldsmiths and the parmenters and between the tailors and the cordwainers in in london. there was also a major fight between the goldsmiths and the tailors in . the parish clerks' company was chartered in . the citizens of london had a common seal for the city. london merchants traveled throughout the nation with goods to sell exempt from tolls. most of the london aldermen were woolmongers, vintners, skinners, and grocers by turns or carried on all these branches of commerce at once. jews were allowed to make loans with interest up to d. a week for s. lent. there are three inns in london. inns typically had narrow facades, large courtyards, lodging and refreshment for the well-off, warehousing and marketing facilities for merchants, and stabling and repairs for wagons. caregiving infirmaries such as "bethlehem hospital" were established in london. one was a lunatic infirmary founded by the sheriff of london. benefactors conveyed plots of land with houses to the city for the benefit and use of the franciscan friars who came to london as missionaries because the friars' law forbade them from owning anything. the city held the land in trust for the beneficiaries, the friars. only tiles were used for roofing in london, because wood shingles were fire hazards and fires in london had been frequent. some areas near london are disclaimed by the king to be royal forest land, so all citizens could hunt there and till their land there without interference by the royal foresters. the sheriff's court in london lost its old importance and handled mainly trespass and debt cases, while important cases went to the hustings, which was presided over by the mayor with the sheriffs and aldermen in attendance. from the early s, the mayor's court took on the work which the weekly husting could not manage. this consisted mostly of assault and robbery cases. murder and manslaughter cases were left to the royal courts. london aldermen were elected by the citizens of their respective wards in wardmotes, in which was also arranged the watch, protection against fire, and probably also assessment of the taxes within the ward. there was much effort by the commoners to influence the governance of the city. in they forced their way into the townmote and by this brute show of strength, which threatened riot, they made their own candidate mayor. subsequent elections were tumultuous. the tower of london now had outer walls of fortress buildings surrounded by a wide and deep moat, over which was one stone causeway and wooden drawbridge. within this was an inner curtain wall with twelve towers and an inner moat. the palace within was a principal residence of english monarchs, whose retinue was extensive, including the chief officers of state: lord high steward, lord high chancellor, lord high treasurer, lord great chamberlain, lord high constable, keeper of the seals, and the king's marshall; lesser officials such as the chamberlain of the candles, keeper of the tents, master steward of the larder, usher of the spithouse, marshall of the trumpets, keeper of the books, keeper of the dishes and of the cups, and steward of the buttery; and numbers of cat hunters, wolf catchers, clerks and limners, carters, water carriers, washerwomen and laundresses, chaplains, lawyers, archers, huntsmen, hornblowers, barbers, minstrels, guards and servitors, and bakers and confectioners. the fortress also contained a garrison, armory, chapels, stables, forge, wardrobe for a tailor's workroom and secure storage of valuable clothes, silver plate, and expensive imports such as sugar, rice, almonds, dried fruits, cinnamon, saffron, ginger, galingale, zedoary, pepper, nutmeg, and mace. there was a kitchen with courtyard for cattle, poultry, and pigs; dairy, pigeon loft, brewery, beehives, fruit stores, gardens for vegetables and herbs; and sheds for gardeners. there was also a mint, which minted a gold penny worth s. of silver, a jewel house, and a menagerie (with leopards, lions, a bear, and an elephant). the fortress also served as a state prison. most prisoners there had opposed the royal will; they were usually permitted to live in quarters in the same style they were used to, including servants and visits by family and friends. but occasionally prisoners were confined in irons in dark and damp dungeons. the king's family, immediate circle, and most distinguished guests dined elegantly in the great hall at midday. they would first wash their hands in hot water poured by servants over bowls. the table had silver plate, silver spoons, and cups of horn, crystal, maple wood, or silver laid on a white cloth. each guest brought his own knife in a leather sheath attached to a belt or girdle. a procession of servitors brought the many dishes to which the gentlemen helped the ladies and the young their seniors by placing the food in scooped-out half-loaves of bread that were afterwards distributed to the poor. a wine cup was handed around the table. in the winter after dinner, there would often be games of chess or dice or songs of minstrels, and sometimes dancing, juggler or acrobat displays, or storytelling by a minstrel. in the summer there were outdoor games and tournaments. hunting with hounds or hawks was popular with both ladies and gentlemen. the king would go to bed on a feather mattress with fur coverlet that was surrounded by linen hangings. his grooms would sleep on trundle beds in the same room. the queen likewise shared her bedchamber with several of her ladies sleeping on trundle beds. breakfast was comprised of a piece of bread and a cup of wine taken after the daily morning mass in one of the chapels. sometimes a round and deep tub was brought into the bedchamber by servants who poured hot water onto the bather in the tub. baths were often taken in the times of henry iii, who believed in cleanliness and sanitation. henry iii was also noted for his luxurious tastes. he had a linen table cloth, goblets of mounted cocoa-nut, a glass cup set in crystal, and silk and velvet mattresses, cushions, and bolster. he had many rooms painted with gold stars, green and red lions, and painted flowers. to his sister on her marriage, he gave goldsmith's work, a chess table, chessmen in an ivory box, silver pans and cooking vessels, robes of cloth of gold, embroidered robes, robes of scarlet, blue, and green fine linen, genoese cloth of gold, two napkins, and thirteen towels. in the king's grant to oxford, the mayor and good men were authorized to take weekly for three years / d. on every cart entering the town loaded with goods, if it was from the county, or d. if it came from outside the county; / d. for every horse load, except for brushwood; / d. on every horse, mare, ox, or cow brought to sell; and / d. for every five sheep, goats, or pigs. english ships had one mast with a square sail. the hulls were made of planks overlapping each other. there was a high fore castle [tower] on the bow, a top castle on the mast, and a high stern castle from which to shoot arrows down on other ships. there were no rowing oars, but steering was still by an oar on the starboard side of the ship. the usual carrying capacity was tuns [big casks of wine each with about gallons]. on the coasts there were lights and beacons. harbors at river mouths were kept from silting up. ships were loaded from piers. the construction of london bridge had just been finished. bricks began to be imported for building. about % of the population lived in towns. churches had stained glass windows. newcastle-on-tyne received these new rights: . -and that they shall justly have their lands and tenures and mortgages and debts, whoever owes them to them. . -concerning their lands and tenures within the town, right shall be done to them according to the custom of the city winton. . -and of all their debts which are lent in newcastle-on-tyne and of mortgages there made, pleas shall be held at newcastle-on-tyne. . -none of them shall plead outside the walls of the city of newcastle-on-tyne on any plea, except pleas of tenures outside the city and except the minters and my ministers. . -that none of them be distrained by any without the said city for the repayment of any debt to any person for which he is not capital debtor or surety. . -that the burgesses shall be quit of toll and lastage [duty on a ship's cargo] and pontage [tax for repairing bridges] and have passage back and forth. . -moreover, for the improvement of the city, i have granted them that they shall be quit of year's gift and of scotale [pressure to buy ale at the sheriff's tavern], so that my sheriff of newcastle-on-tyne or any other minister shall not make a scotale. . -and whosoever shall seek that city with his merchandise, whether foreigners or others, of whatever place they may be, they may come sojourn and depart in my safe peace, on paying - - the due customs and debts, and any impediment to these rights is prohibited. . -we have granted them also a merchant guild. . and that none of them [in the merchant guild] shall fight by combat. the king no longer lives on his own from income from his own lands, but takes money from the treasury. a tax of a percentage of / the of personal property was levied in for a war, in return for which the king signed the magna carta. it was to be paid by all tenants-in-chief, men of the royal domain, burgesses of the boroughs and cities, clerical tenants-in-chief, and religious houses. the percentage tax came to be used frequently and ranged from about / th to / th. in , this tax was bifurcated into one percentage amount for the rural districts and a higher one for urban districts, because the burgesses had greater wealth and much of it was hard to uncover because it was in the possession of customers and debtors. it was usually / th for towns and royal domains and / th in the country. this amount of money collected by this tax increased with the wealth of the country. the king takes custody of lands of lunatics and idiots, as well as escheats of land falling by descent to aliens. henry iii took s. from his tenants-in-chief for the marriage of his daughter, and two pounds for the knighting of his son. by , the king was hiring soldiers at s. per day for knights, and d. a day for less heavily armed soldiers, and d. a day for crossbowmen. some castle-guard was done by watchmen hired at d. a day. ships were impressed when needed. sometimes private ships were authorized to ravage the french coasts and take what spoil they could. while king henry iii was underage, there was much controversy as to who should be his ministers of state, such as justiciar, chancellor, and treasurer. this led to the concept that they should not be chosen by the king alone. after he came of age, elected men from the baronage fought to have meetings and his small council in several conferences called great councils or parliaments (from french "to speak the mind") to discuss the levying of taxes and the solution of difficult legal cases, the implementation of the magna carta, the appointment of the king's ministers and sheriffs, and the receipt and consideration of petitions. the barons paid / the tax on their personal property to have three barons of their choice added to the council. statutes were enacted. landholders were given the duty of electing four of their members in every county to ensure that the sheriff observed the law and to report his misdemeanors to the justiciar. they were also given the duty of electing four men from the county from whom the exchequer was to choose the sheriff of the year. earl montfort and certain barons forced king henry iii to summon a great council or parliament in in which the common people were represented officially by two knights from every county, two burgesses from every borough, and two representatives from each major port. so the king's permanent small council became a separate body from parliament and its members took a specific councilor's oath in to give faithful counsel, to keep secrecy, to prevent alienation of ancient demesne, to procure justice for the rich and poor, to allow justice to be done on themselves and their friends, to abstain from gifts and misuse of patronage and influence, and to be faithful to the queen and to the heir. the law the barons forced successive kings to sign the magna carta until it became the law of the land. it became the first statute of the official statute book. its provisions express the principle that a king is bound by the law and is not above it. however, there is no redress if the king breaches the law. the magna carta was issued by john in . a revised version was issued by henry iii in with the forest clauses separated out into a forest charter. the two versions are replicated together, with the formatting of each indicated in the titles below. {magna carta - } magna carta - & magna carta - {john, by the grace of god, king of england, lord of ireland, duke of normandy and aquitaine, and count of anjou: to the archbishops, bishops, abbots, earls, barons, justiciaries, foresters, sheriffs, reeves, ministers, and all bailiffs and others, his faithful subjects, greeting. know ye that in the presence of god, and for the health of our soul, and the souls of our ancestors and heirs, to the honor of god, and the exaltation of holy church, and amendment of our realm, by the advice of our reverend fathers, stephen, archbishop of canterbury, primate of all england, and cardinal of the holy roman church; henry, archbishop of dublin; william of london, peter of winchester, jocelin of bath and glastonbury, hugh of lincoln, walter of worcester, william of coventry, and benedict of rochester, bishops; master pandulph, the pope's subdeacon and familiar; brother aymeric, master of the knights of the temple in england; and the noble persons, william marshall, earl of pembroke; william, earl of salisbury; william, earl of warren; william, earl of arundel; alan de galloway, constable of scotland; warin fitz-gerald, peter fitz-herbert, hubert de burgh, seneshal of poitou, hugh de neville, matthew fitz-herbert, thomas basset, alan basset, philip daubeny, robert de roppelay, john marshall, john fitz-hugh, and others, our liegemen:} henry by the grace of god, king of england, lord of ireland, duke of normandy and guyan and earl of anjou, to all archbishops, bishops, abbots, priors, earls, barons, sheriffs, provosts, officers and to all bailiffs and other our faithful subjects which shall see this present charter, greeting. know ye that we, unto the honor of almighty god, and for the salvation of the souls of our progenitors and successors kings of england, to the advancement of holy church and amendment of our realm, of our mere and free will, have given and granted to all archbishops, bishops, abbots, priors, earls, barons, and to all free men of this our realm, these liberties following, to be kept in our kingdom of england forever. [i. a confirmation of liberties] first, we have granted to god, and by this our present charter confirmed, for us and our heirs forever, that the english church shall be free and enjoy her whole rights and her liberties inviolable. {and that we will this so to be observed appears from the fact that we of our own free will, before the outbreak of the dissensions between us and our barons, granted, confirmed, and procured to be confirmed by pope innocent iii the freedom of elections, which is considered most important and necessary to the english church, which charter we will both keep ourself and will it to be kept with good faith by our heirs forever.} we have also granted to all the free men of our realm, for us and our heirs forever, all the liberties underwritten, to have and to hold to them and their heirs of us and our heirs. [ii. the relief of the king's tenant of full age] if any of our earls, barons, or others who hold of us in chief by knight's service dies, and at the time of his death his heir is of full age and owes to us a relief, he shall have his inheritance on payment of [no more than] the old relief; to wit, the heir or heirs of an earl, for an entire earldom, pounds [ , s.]; the heir or heirs of a baron of an entire barony, { pounds} marks; the heir or heirs of an entire knight's fee, s. at the most [about / of a knight's annual income]; and he who owes less shall give less, according to the old custom of fees. [iii. the wardship of an heir within age. the heir a knight] but if the heir of such be under age, his lord shall not have the ward of him, nor of his land, before that he has taken of him homage. if, however, any such heir is under age and in ward, he shall have his inheritance without relief or fine when he comes of age, that is, twenty-one years of age. so that if such an heir not of age is made a knight, yet nevertheless his land shall remain in the keeping of his lord unto the aforesaid term. [iv. no waste shall be made by a guardian in ward's lands] the guardian of the land of any heir thus under age shall take therefrom only reasonable issues, customs, and services, without destruction or waste of men or goods. and if we commit the custody of any such land to the sheriff or any other person answerable to us for the issues of the same land, and he commits destruction or waste, we will take an amends from him and recompense therefore. and the land shall be committed to two lawful and discreet men of that fee, who shall be answerable for the issues of the same land to us or to whomsoever we shall have assigned them. and if we give or sell the custody of any such land to any man, and he commits destruction or waste, he shall lose the custody, which shall be committed to two lawful and discreet men of that fee, who shall, in like manner, be answerable to us as has been aforesaid. [v. guardians shall maintain the inheritance of their wards and of bishopricks, etc.] the guardian, so long as he shall have the custody of the land, shall keep up and maintain the houses, parks, fishponds, pools, mills, and other things pertaining thereto, out of the issues of the same, and shall restore to the heir when he comes of age, all his land stocked with {ploughs and tillage, according as the season may require and the issues of the land can reasonably bear} ploughs and all other things, at the least as he received it. all these things shall be observed in the custodies of vacant archbishopricks, bishopricks, abbeys, priories, churches, and dignities, which appertain to us; except this, that such custody shall not be sold. [vi. heirs shall be married without disparagement] heirs shall be married without loss of station. {and the marriage shall be made known to the heir's nearest of kin before it is agreed.} [vii. a widow shall have her marriage, inheritance, and querentine (period of forty days during which the widow has a privilege of remaining in the mansion house of which her husband died seized). the king's widow, etc.] a widow, after the death of her husband, shall immediately and without difficulty have her marriage portion [property given to her by her father] and inheritance. she shall not give anything for her marriage portion, dower, or inheritance which she and her husband held on the day of his death, and she may remain in her husband's house for forty days after his death, within which time her dower shall be assigned to her. if that house is a castle and she leaves the castle, then a competent house shall forthwith be provided for her, in which she may honestly dwell until her dower is assigned to her as aforesaid; and in the meantime her reasonable estovers of the common [necessaries or supplies such as wood], etc. no widow shall be compelled [by penalty of fine] to marry so long as she has a mind to live without a husband, provided, however, that she gives security that she will not marry without our assent, if she holds of us, or that of the lord of whom she holds, if she holds of another. [viii. how sureties shall be charged to the king] neither we nor our bailiffs shall seize any land or rent for any debt as long as the debtor's goods and chattels suffice to pay the debt and the debtor himself is ready to satisfy therefore. nor shall the debtor's sureties be distrained as long as the debtor is able to pay the debt. if the debtor fails to pay, not having the means to pay, or will not pay although able to pay, then the sureties shall answer the debt. and, if they desire, they shall hold the debtor's lands and rents until they have received satisfaction of that which they had paid for him, unless the debtor can show that he has discharged his obligation to them. {if anyone who has borrowed from the jews any sum of money, great or small, dies before the debt has been paid, the heir shall pay no interest on the debt as long as he remains under age, of whomsoever he may hold. if the debt falls into our hands, we will take only the principal sum named in the bond.} {and if any man dies indebted to the jews, his wife shall have her dower and pay nothing of that debt; if the deceased leaves children under age, they shall have necessaries provided for them in keeping with the estate of the deceased, and the debt shall be paid out of the residue, saving the service due to the deceased's feudal lords. so shall it be done with regard to debts owed persons other than jews.} [ix. the liberties of london and other cities and towns confirmed] the city of london shall have all her old liberties and free customs, both by land and water. moreover, we will and grant that all other cities, boroughs, towns, and ports shall have all their liberties and free customs. {no scutage or aid shall be imposed in our realm unless by common counsel thereof, except to ransom our person, make our eldest son a knight, and once to marry our eldest daughter, and for these only a reasonable aid shall be levied. so shall it be with regard to aids from the city of london.} {to obtain the common counsel of the realm concerning the assessment of aids (other than in the three aforesaid cases) or of scutage, we will have the archbishops, bishops, abbots, earls, and great barons individually summoned by our letters; we will also have our sheriffs and bailiffs summon generally all those who hold lands directly of us, to meet on a fixed day, but with at least forty days' notice, and at a fixed place. in all such letters of summons, we will explain the reason therefor. after summons has thus been made, the business shall proceed on the day appointed, according to the advice of those who are present, even though not all the persons summoned have come.} {we will not in the future grant permission to any man to levy an aid upon his free men, except to ransom his person, make his eldest son a knight, and once to marry his eldest daughter, and on each of these occasions only a reasonable aid shall be levied.} [x. none shall distrain for more service than is due.] no man shall be compelled to perform more service for a knight's fee nor any freehold than is due therefrom. [xi. common pleas shall not follow the king's court] people who have common pleas shall not follow our court traveling about the realm, but shall be heard in some certain place. [xii. where and before whom assizes shall be taken. adjournment for difficulty] {land assizes of novel disseisin, mort d'ancestor and darrein presentment shall be heard only in the county where the property is situated, and in this manner: we or, if we are not in the realm, our chief justiciary, shall send two justiciaries through each county four times a year [to clear and prevent backlog], and they, together with four knights elected out of each county by the people thereof, shall hold the said assizes in the county court, on the day and in the place where that court meets.} assizes of novel disseisin, mort d'ancestor shall be heard only in the county where the property is situated, and in this manner: we, or if we are not in the realm, our chief justiciary, shall send justiciaries through each county once a year, and they together with knights of that county shall hold the said assizes in the county. {if the said assizes cannot be held on the day appointed, so many of the knights and freeholders as were present on that day shall remain as will be sufficient for the administration of justice, according to the amount of business to be done.} and those things that at the coming of our foresaid justiciaries, being sent to take those assizes in the counties, cannot be determined, shall be ended by them in some other place in their circuit; and those things which for difficulty of some articles cannot be determined by them, shall be referred to our justices of the bench and there shall be ended. [xiii. assizes of darrein presentment] assizes of darrein presentment shall always be taken before our justices of the bench and there shall be determined. [xiv. how men of all sorts shall be amerced and by whom] a freeman shall be amerced [made to pay a fine to the king] for a small offense only according to the degree thereof, and for a serious offense according to its magnitude, saving his position and livelihood; and in like manner a merchant, saving his trade and merchandise, and a villein saving his tillage, if they should fall under our mercy. none of these amercements shall be imposed except by the oath of honest men of the neighborhood. earls and barons shall be amerced only by their peers, and only in accordance with the seriousness of the offense. {no amercement shall be imposed upon a cleric's lay tenement, except in the manner of the other persons aforesaid, and without regard to the value of his ecclesiastical benefice.} no man of the church shall be amerced except in accordance with the seriousness of the offense and after his lay tenement, but not after the quantity of his spiritual benefice. [xv. making of bridges and banks] no town or freeman shall be compelled to build bridges over rivers or banks except those bound by old custom and law to do so. [xvi. defending of banks] no banks [land near a river] shall be defended [used by the king alone, e.g. for hunting], from henceforth, but such as were in defense in the time of king henry [ii] our grandfather, by the same places and in the same bounds as in his time. [xvii. holding pleas of the crown] no sheriff, constable, coroners, or other of our bailiffs shall hold pleas of our crown [but only justiciars, to prevent disparity of punishments and corruption]. {all counties, hundreds, wapentakes, and tithings (except our demesne manors) shall remain at the old rents, without any increase.} [xviii. the king's debtor dying, the king shall be first paid] if anyone holding a lay fee of us dies, and our sheriff or our bailiff show our letters patent [public letter from a sovereign or one in authority] of summons for a debt due to us from the deceased, it shall be lawful for such sheriff or bailiff to attach and list the goods and chattels of the deceased found in the lay fee to the value of that debt, by the sight and testimony of lawful men [to prevent taking too much], so that nothing thereof shall be removed therefrom until our whole debt is paid; then the residue shall be given up to the executors to carry out the will of the deceased. if there is no debt due from him to us, all his chattels shall remain the property of the deceased, saving to his wife and children their reasonable shares. {if any freeman dies intestate, his chattels shall be distributed by his nearest kinfolk and friends, under supervision of the church, saving to each creditor the debts owed him by the deceased.} [xix. purveyance for a castle] no constable or other of our bailiffs shall take grain or other chattels of any man without immediate payment, unless the seller voluntarily consents to postponement of payment. this applies if the man is not of the town where the castle is. but if the man is of the same town as where the castle is, the price shall be paid to him within days. [xx. doing of castle-guard] no constable shall compel any knight to give money for keeping of his castle in lieu of castle-guard when the knight is willing to perform it in person or, if reasonable cause prevents him from performing it himself, by some other fit man. further, if we lead or send him into military service, he shall be excused from castle-guard for the time he remains in service by our command. [xxi. taking of horses, carts, and wood] no sheriff or bailiff of ours, or any other man, shall take horses or carts of any freeman for carriage without the owner's consent. he shall pay the old price, that is, for carriage with two horses, d. a day; for three horses, d. a day. no demesne cart of any spiritual person or knight or any lord shall be taken by our bailiffs. neither we nor our bailiffs will take another man's wood for our castles or for other of our necessaries without the owner's consent. [xxii. how long felons' lands shall be held by the king] we will hold the lands of persons convicted of felony for only a year and a day [to remove the chattels and movables], after which they shall be restored to the lords of the fees. [xxiii. in what place weirs shall be removed] all fishweirs [obstructing navigation] shall be entirely removed by the thames and medway rivers, and throughout england, except upon the seacoast. [xxiv. in what case a praecipe in capite is not grantable] the [royal] writ called "praecipe in capite" [for tenements held in chief of the crown] shall not in the future be granted to anyone respecting any freehold if thereby a freeman [who has a mesne lord] may not be tried in his lord's court. [xxv. there shall be but one measure throughout the realm] there shall be one measure of wine throughout our realm, one measure of ale, and one measure of grain, to wit, the london quarter, and one breadth of dyed cloth, russets, and haberjets, to wit, two {ells} yards within the selvages. as with measures so shall it also be with weights. [xxvi. inquisition of life and limb] henceforth nothing shall be given or taken for a writ of inquisition upon life or limb, but it shall be granted freely and not denied. [xxvii. tenure of the king in socage and of another by knight's service. petty serjeanty.] if anyone holds of us by fee farm, socage, or burgage, and also holds land of another by knight's service, we will not by reason of that fee farm, socage, or burgage have the wardship of his heir, or the land which belongs to another man's fee. nor will we have the custody of such fee farm, socage, or burgage unless such fee farm owe knight's service. we will not have the wardship of any man's heir, or the land which he holds of another by knight's service, by reason of any petty serjeanty which he holds of us by service of rendering us knives, arrows, or the like. [xxviii. wages of law shall not be without witness] in the future no [royal] bailiff shall upon his own unsupported accusation put any man to trial or oath without producing credible witnesses to the truth of the accusation. [xxix. none shall be condemned without trial. justice shall not be sold or delayed.] no freeman shall be taken, imprisoned, disseised of his freehold or liberties or free customs, or be outlawed, banished, or in any way ruined, nor will we prosecute or condemn him, except by the lawful judgment of his peers or by the law of the land. to no one will we sell [by bribery], to none will we deny or delay, right or justice. [xxx. merchant strangers coming into this realm shall be well used] all merchants shall have safe conduct to go and come out of and into england, and to stay in and travel through england by land and water, to buy and sell, without evil tolls, in accordance with old and just customs, except, in time of war, such merchants as are of a country at war with us. if any such be found in our realm at the outbreak of war, they shall be detained, without harm to their bodies or goods, until it be known to us or our chief justiciary how our merchants are being treated in the country at war with us. and if our merchants are safe there, then theirs shall be safe with us. {henceforth anyone, saving his allegiance due to us, may leave our realm and return safely and securely by land and water, except for a short period in time of war, for the common benefit of the realm.} [xxxi. tenure of a barony coming into the king's hands by escheat] if anyone dies holding of any escheat, such as the honor of wallingford, nottingham, boulogne, {lancaster,} or other escheats which are in our hands and are baronies, his heir shall not give any relief or do any service to us other than he would owe to the baron, if such barony had been in the baron's hands. and we will hold the escheat in the same manner in which the baron held it. nor shall we have, by occasion of any barony or escheat, any escheat or keeping of any of our men, unless he who held the barony or escheat elsewhere held of us in chief. persons dwelling outside the forest [in the county] need not in the future come before our justiciaries of the forest in answer to a general summons unless they are impleaded or are sureties for any person or persons attached for breach of forest laws. [xxxii. lands shall not be aliened to the prejudice of the lord's service] no freeman from henceforth shall give or sell any more of his land, but so that of the residue of the lands the lord of the fee may have the service due to him which belongs to the fee. {we will appoint as justiciaries, constables, sheriffs, or bailiffs only such men as know the law of the land and will keep it well.} [xxxiii. patrons of abbeys shall have the custody of them when vacant] all barons who had founded abbeys of which they have charters of english kings or old tenure, shall have the custody of the same when vacant, as is their due. all forests which have been created in our time shall forthwith be disafforested. {so shall it be done with regard to river banks which have been enclosed by fences in our time.} {all evil customs concerning forests and warrens [livestock grounds in forests], foresters and warreners, sheriffs and their officers, or riverbanks and their conservators shall be immediately investigated in each county by twelve sworn knights of such county, who are chosen by honest men of that county, and shall within forty days after this inquest be completely and irrevocably abolished, provided always that the matter has first been brought to our knowledge, or that of our justiciars, if we are not in england.} {we will immediately return all hostages and charters delivered to us by englishmen as security for the peace or for the performance of loyal service.} {we will entirely remove from their offices the kinsmen of gerald de athyes, so that henceforth they shall hold no office in england: engelard de cigogne, peter, guy, and andrew de chanceaux, guy de cigogne, geoffrey de martigny and his brothers, philip mark and his brothers, and geoffrey his nephew, and all their followers.} {as soon as peace is restored, we will banish from our realm all foreign knights, crossbowmen, sergeants, and mercenaries, who have come with horses and arms, to the hurt of the realm.} {if anyone has been disseised or deprived by us, without the legal judgment of his peers, of lands, castles, liberties, or rights, we will immediately restore the same, and if any disagreement arises on this, the matter shall be decided by judgment of the twenty- five barons mentioned below in the clause for securing the peace. with regard to all those things, however, of which any man was disseised or deprived, without the legal judgment of his peers, by king henry [ii] our father or our brother king richard, and which remain in our hands or are held by others under our warranty, we shall have respite during the term commonly allowed to the crusaders, excepting those cases in which a plea was begun or inquest made on our order before we took the cross; when, however, we return from our pilgrimage, or if perhaps we do not undertake it, we will at once do full justice in these matters.} {likewise, we shall have the same respite in rendering justice with respect to the disafforestation or retention of those forests which henry [ii] our father or richard our brother afforested, and concerning custodies of lands which are of the fee of another, which we hitherto have held by reason of the fee which some person has held of us by knight's service, and to abbeys founded on fees other than our own, in which the lord of that fee asserts his right. when we return from our pilgrimage, or if we do not undertake it, we will forthwith do full justice to the complainants in these matters.} [xxxiv. in what only case a woman shall have an appeal of death] no one shall be arrested or imprisoned upon a woman's appeal for the death of any person other than her husband [since no woman was expected to personally engage in trial by combat]. [xxxv. at what time shall be kept a county court, sheriff's turn and a leet court (courts of criminal jurisdiction excepting felonies)] no county court from henceforth shall be held, but from month to month; and where greater time has been used, there shall be greater. nor shall any sheriff, or his bailiff, keep his turn in the hundred but twice in the year; and no where but in due place and accustomed time, that is, once after easter, and again after the feast of saint michael. and the view of frankpledge [the right of assembling the whole male population over years except clergy, earls, barons, knights, and the infirm, at the leet or soke court for the capital frankpledges to give account of the peace kept by individuals in their respective tithings] shall be likewise at the feast of saint michael without occasion, so that every man may have his liberties which he had, or used to have, in the time of king henry [ii] our grandfather, or which he has since purchased. the view of frankpledge shall be so done, that our peace may be kept; and that the tything be wholly kept as it has been accustomed; and that the sheriff seek no occasions, and that he be content with so much as the sheriff was wont to have for his view-making in the time of king henry our grandfather. [xxxvi. no land shall be given in mortmain] it shall not be lawful from henceforth to any to give his land to any religious house, and to take the same land again to hold of the same house [thereby extinguishing the feudal rights of the temporal lord]. nor shall it be lawful to any house of religion to take the lands of any, and to lease the same to him of whom he received it. if any from henceforth give his lands to any religious house, and thereupon be convicted, the gift shall be utterly void, and the land shall accrue to the lord of the fee. {all fines unjustly and unlawfully given to us, and all amercements levied unjustly and against the law of the land, shall be entirely remitted or the matter decided by judgment of the twenty-five barons mentioned below in the clause for securing the peace, or the majority of them, together with the aforesaid stephen, archbishop of canterbury, if he himself can be present, and any others whom he may wish to bring with him for the purpose; if he cannot be present, the business shall nevertheless proceed without him. if any one or more of the said twenty-five barons has an interest in a suit of this kind, he or they shall step down for this particular judgment, and be replaced by another or others, elected and sworn by the rest of the said barons, for this occasion only.} {if we have disseised or deprived the welsh of lands, liberties, or other things, without legal judgment of their peers, in england or wales, they shall immediately be restored to them, and if a disagreement arises thereon, the question shall be determined in the marches by judgment of their peers according to the law of england as to english tenements, the law of wales as to welsh tenements, the law of the marches as to tenements in the marches. the same shall the welsh do to us and ours.} {but with regard to all those things of which any welshman was disseised or deprived, without legal judgment of his peers, by king henry [ii] our father or our brother king richard, and which we hold in our hands or others hold under our warranty, we shall have respite during the term commonly allowed to the crusaders, except as to those matters whereon a suit had arisen or an inquisition had been taken by our command prior to our taking the cross. immediately after our return from our pilgrimage, or if by chance we do not undertake it, we will do full justice according to the laws of the welsh and the aforesaid regions.} {we will immediately return the son of llywelyn, all the welsh hostages, and the charters which were delivered to us as security for the peace.} {with regard to the return of the sisters and hostages of alexander, king of the scots, and of his liberties and rights, we will do the same as we would with regard to our other barons of england, unless it appears by the charters which we hold of william his father, late king of the scots, that it ought to be otherwise; this shall be determined by judgment of his peers in our court.} [xxxvii. subsidy in respect of this charter, and the charter of the forest, granted to the king.] escuage [service of the shield, a tenure in knights' service] from henceforth shall be taken as it was wont to be in the time of king henry [ii] our grandfather; reserving to all archbishops, bishops, abbots, priors, templers, hospitallers, earls, barons, and all persons as well spiritual as temporal; all their free liberties and free customs, which they have had in time passed. and all these customs and liberties aforesaid, which we have granted to be held within this our realm, as much as pertains to us and our heirs, we shall observe. {all the customs and liberties aforesaid, which we have granted to be enjoyed, as far as it pertains to us towards our people throughout our realm, let all our subjects, whether clerics or laymen, observe, as far as it pertains toward their dependents.} and all men of this our realm, as well spiritual as temporal (as much as in them is) shall observe the same against all persons in like wise. and for this our gift and grant of these liberties, and of other constrained in our charter of liberties of our forest, the archbishops, bishops, abbots, priors, earls, barons, knights, freeholders, and our other subjects, have given unto us the fifteenth part of all their movables. and we have granted unto them on the other part, that neither we, nor our heirs, shall procure or do any thing whereby the liberties in this charter contained shall be infringed or broken. and if any thing be procured by any person contrary to the premises, it shall be had of no force nor effect. [enforcement] {whereas we, for the honor of god and the reform of our realm, and in order the better to allay the discord arisen between us and our barons, have granted all these things aforesaid. we, willing that they be forever enjoyed wholly and in lasting strength, do give and grant to our subjects the following security, to wit, that the barons shall elect any twenty-five barons of the realm they wish, who shall, with their utmost power, keep, hold, and cause to be kept the peace and liberties which we have granted unto them and by this our present charter have confirmed, so that if we, our justiciary, bailiffs, or any of our ministers offends in any respect against any man, or transgresses any of these articles of peace or security, and the offense is brought before four of the said twenty-five barons, those four barons shall come before us, or our chief justiciary if we are out of the realm, declaring the offense, and shall demand speedy amends for the same. if we or, in case of our being out of the realm, our chief justiciary fails to afford redress within forty days from the time the case was brought before us or, in the event of our having been out of the realm, our chief justiciary, the aforesaid four barons shall refer the matter to the rest of the twenty-five barons, who, together with the commonalty of the whole country, shall distrain and distress us to the utmost of their power, to wit, by capture of our castles, lands, and possessions and by all other possible means, until compensation is made according to their decision, saving our person and that of our queen and children; as soon as redress has been had, they shall return to their former allegiance. anyone in the realm may take oath that, for the accomplishment of all the aforesaid matters, he will obey the orders of the said twenty-five barons and distress us to the utmost of his power; and we give public and free leave to everyone wishing to take oath to do so, and to none will we deny the same. moreover, all such of our subjects who do not of their own free will and accord agree to swear to the said twenty-five barons, to distrain and distress us together with them, we will compel to do so by our command in the aforesaid manner. if any one of the twenty-five barons dies or leaves the country or is in any way hindered from executing the said office, the rest of the said twenty-five barons shall choose another in his stead, at their discretion, who shall be sworn in like manner as the others. in all cases which are referred to the said twenty-five barons to execute, and in which a difference arises among them, supposing them all to be present, or in which not all who have been summoned are willing or able to appear, the verdict of the majority shall be considered as firm and binding as if the whole number had been of one mind. the aforesaid twenty-five shall swear to keep faithfully all the aforesaid articles and, to the best of their power, to cause them to be kept by others. we will not procure, either by ourself or any other, anything from any man whereby any of these concessions or liberties may be revoked or abated. if any such procurement is made, let it be null and void; it shall never be made use of either by us or by any other.} [amnesty] {we have also fully forgiven and pardoned all ill-will, wrath, and malice which has arisen between us and our subjects, both clergy and laymen, during the disputes, to and with all men. moreover, we have fully forgiven and, as far as it pertains to us, wholly pardoned to and with all, clergy and laymen, all offenses made in consequence of the said disputes from easter in the sixteenth year of our reign until the restoration of peace. over and above this, we have caused letters patent to be made for stephen, archbishop of canterbury, henry, archbishop of dublin, the above-mentioned bishops, and master pandulph, for the aforesaid security and concessions.} {wherefore we will that, and firmly command that, the english church shall be free and all men in our realm shall have and hold all the aforesaid liberties, rights, and concessions, well and peaceably, freely, quietly, fully, and wholly, to them and their heirs, of us and our heirs, in all things and places forever, as is aforesaid. it is moreover sworn, as will on our part as on the part of the barons, that all these matters aforesaid shall be kept in good faith and without deceit. witness the above-named and many others. given by our hand in the meadow which is called runnymede, between windsor and staines, on the fifteenth day of june in the seventeenth year of our reign.} these being witnesses: lord s. archbishop of canterbury, e. bishop of london, f. bishop of bathe, g. of wincester, h. of lincoln, r. of salisbury, w. of rochester, x. of worcester, f. of ely, h. of hereford, r. of chichester, w. of exeter, bishops; the abbot of st. edmonds, the abbot of st. albans, the abbot of bello, the abbot of st. augustines in canterbury, the abbot of evesham, the abbot of westminster, the abbot of bourgh st. peter, the abbot of reding, the abbot of abindon, the abbot of malmbury, the abbot of winchcomb, the abbot of hyde, the abbot of certesey, the abbot of sherburn, the abbot of cerne, the abbot of abborebir, the abbot of middleton, the abbot of seleby, the abbot of cirencester, h. de burgh justice, h. earl of chester and lincoln, w. earl of salisbury, w. earl of warren, g. de clare earl of gloucester and hereford, w. de ferrars earl of derby, w. de mandeville earl of essex, h. de bygod earl of norfolk, w. earl of albemarle, h. earl of hereford, f. constable of chester, g. de tos, h. fitzwalter, r. de byponte, w. de bruer, r. de montefichet, p. fitzherbert, w. de aubenie, f. gresly, f. de breus, f. de monemue, f. fitzallen, h. de mortimer, w. de beuchamp, w. de st. john, p. de mauli, brian de lisle, thomas de multon, r. de argenteyn, g. de nevil, w. de mauduit, f. de balun, and others. given at westminster the th day of february the th year of our reign. we, ratifying and approving these gifts and grants aforesaid, confirm and make strong all the same for us and our heirs perpetually, and by the tenour of these presents, do renew the same; willing and granting for us and our heirs, that this charter, and all singular his articles, forever shall be steadfastly, firmly, and inviolably observed; and if any article in the same charter contained, yet hitherto peradventure has not been kept, we will, and by royal authority, command, from henceforth firmly they be observed. felonies are serious crimes which can be punished by loss of life or member. by common law, they now consist of homicide, mayhem, wounding, false imprisonment, arson, rape, robbery, burglary, and larceny. a felon's lands go to his lord or to the king and his chattels are confiscated. if a man accused of felony flies, he can be outlawed. treason was a special felony, which was punishable by hanging after being drawn behind a horse along the rough road to the gibbet. petty treason was treason to one's lord and included adultery with the lord's wife, violation of his daughter, and forgery of his seal. high treason was to the king and include clipping of the king's coin and making counterfeit money. a traitor's land was forfeited to the king. treason had no benefit of clergy. statutes which were enacted after the magna carta follow: nuisance is recognized by this statute: "every freeman, without danger, shall make in his own wood, or in his land, or in his water, which he has within our forest, mills, springs, pools, clay pits, dikes, or arable ground, so that it does not annoy any of his neighbors." anyone taking a widow's dower after her husband's death must not only return the dower, but pay damages in the amount of the value of the dower from the time of death of the husband until her recovery of seisin. widows may bequeath the crop of their ground as well of their dowers as of their other lands and tenements. freeholders of tenements on manors shall have sufficient ingress and egress from their tenements to the common pasture and as much pasture as suffices for their tenements. "grain shall not be taken under the pretense of borrowing or the promise of after-payment without the permission of the owner." "a parent or other who forcefully leads away and withholds, or marries off, an heir who is a minor (under ), shall yield the value of the marriage and be imprisoned until he has satisfied the king for the trespass. if an heir years or older marries without his lord's permission to defraud him of the marriage and the lord offers him reasonable and convenient marriage, without disparagement, then the lord shall hold his land beyond the term of his age, that, of twenty one years, so long that he may receive double the value of the marriage as estimated by lawful men, or after as it has been offered before without fraud or collusion, and after as it may be proved in the king's court. any lord who marries off a ward of his who is a minor and cannot consent to marriage, to a villain or other, such as a burgess, whereby the ward is disparaged, shall lose the wardship and all its profits if the ward's friends complain of the lord. the wardship and profit shall be converted to the use of the heir, for the shame done to him, after the disposition and provision of his friends." (the "marriage" could be annulled by the church.) "if an heir of whatever age will not marry at the request of his lord, he shall not be compelled thereunto; but when he comes of age, he shall pay to his lord the value of the marriage before receiving his land, whether or not he himself marries." "interest shall not run against any minor, from the time of death of his ancestor until his lawful age; so nevertheless, that the payment of the principal debt, with the interest that was before the death of his ancestor shall not remain." the value of debts to be repaid to the king or to any man shall be reasonably determined by the debtor's neighbors and not by strangers. a debtors' plough cattle or sheep cannot be taken to satisfy a debt. the wards and escheats of the king shall be surveyed yearly by three people assigned by the king. the sheriffs, by their counsel, shall approve and let to farm such wards and escheats as they think most profitable for the king. the sheriffs shall be answerable for the issues thereof in the exchequer at designated times. the collectors of the customs on wool exports shall pay this money at the two designated times and shall make yearly accounts of all parcels in ports and all ships. by statute leap year was standardized throughout the nation, "the day increasing in the leap year shall be accounted in that year", "but it shall be taken and reckoned in the same month wherein it grew and that day and the preceding day shall be counted as one day." "an english penny [ d.], called a sterling, round and without any clipping, shall weigh wheat grains dry in the middle of the ear." measurements of distance were standardized to twelve inches to a foot, three feet to a yard, and so forth up to an acre of land. goods which could only be sold by the standard weights and measures (such as ounces, pounds, gallons, bushels) included sacks of wool, leather, skins, ropes, glass, iron, lead, canvas, linen cloth, tallow, spices, confections cheese, herrings, sugar, pepper, cinnamon, nutmeg, wheat, barley, oats, bread, and ale. the prices required for bread and ale were based on the market price for the wheat, barley, and oats from which they were made. the punishment for repeated violations of required measures, weights, or prices of bread and ale by a baker or brewer; selling of spoiled or unwholesome wine, meat, fish by brewers, butchers, or cooks; or a steward or bailiff receiving a bribe was reduced to placement in a pillory with a shaven head so that these men would still be fit for military service and not overcrowd the gaols. forest penalties were changed so that "no man shall lose either life or member [limb] for killing of our deer. but if any man be taken and convicted for taking our venison, he shall make a grievous fine, if he has anything. and if he has nothing to lose, he shall be imprisoned for a year and a day. and after that, if he can find sufficient sureties, he shall be delivered, and, if not, he shall abjure the realm of england." the forest charter provided that: every freeman may allow his pigs to eat in his own wood in the king's forest. he may also drive his pigs through the king's forest and tarry one night within the forest without losing any of his pigs. but people having greyhounds must keep them out of the forest so they don't maim the deer. the forest charter also allowed magnates traveling through the king's forest on the king's command to come to him, to kill one or two deer as long as it was in view of the forester if he was present, or while having a horn blown, so it did not seem to be theft. after a period of civil war, the following statutes were enacted: "all persons, as well of high as of low estate, shall receive justice in the king's court; and none shall take any such revenge or distress by his own authority, without award of our court, although he is damaged or injured, whereby he would have amends of his neighbor either higher or lower." the penalty is a fine according to the trespass. a fraudulent conveyance to a minor or lease for a term of years made to defraud a lord of a wardship shall be void. a lord who maliciously and wrongfully alleges this to a court shall pay damages and costs. if a lord will not render unto an heir his land when he comes of age or takes possession away from an heir of age or removes anything from the land, he shall pay damages. (the king retained the right to take possession of an heir's land for a year or, in lieu of this, to take one year's profit from the land in addition to the relief.) kinsmen of a minor heir who have custody of his land held in socage shall make no waste, sale, nor destruction of the inheritance and shall answer to the heir when he comes of age for the issues of the land, except for the reasonable costs of these guardians. no lord may distrain any of his tenants. no one may drive animals taken by distraint out of the county where they have been taken. "farmers during their terms, shall not make waste, sale, nor exile of house, woods, and men, nor of any thing else belonging to the tenements which they have to farm". church law required that planned marriages be publicly announced [banns]by the priest so that any impediment could be made known. if a marriage was clandestine or both parties knew of an impediment, or it was within the prohibited degrees of consanguinity, the children would be illegitimate. according to church rules, a man could bequeath his personal property subject to certain family rights. these were that if only the wife survived, she received half the property. similarly, if children survived, but no wife, they received half the property. when the wife and children survived, each party received one third. the church hoped that the remaining fraction would go to the church as a reward for praying for the deceased's soul. it taught that dying without a will was sinful. adults were to confess their sins at least yearly to their parish priest, which confession would be confidential. ecclesiastical offenses included fornication, adultery, incest, and bigamy, for which the punishment was usually whipping or a money payment. heresy and sorcery were so infrequent that there was no machinery aptly suited for their suppression. henry de bracton, a royal justice and the last great ecclesiastical attorney, wrote an unfinished treatise: a tract on the laws and customs of england, systematizing and organizing the law of the court rolls with definitions and general concepts and describing court practice and procedure. it was influenced by his knowledge of roman legal concepts, such as res judicata, and by his own opinions, such as that the law should go from precedent to precedent. he also argued that the will and intent to injure was the essence of murder, so that neither an infant nor a madman should be held liable for such and that degrees of punishment should vary with the level of moral guilt in a killing. he thought the deodand to be unreasonable. bracton defines the requirements of a valid and effective gift, still applicable in , as: "it must be complete and absolute, free and uncoerced, extorted neither by fear nor through force. let money or service play no part, lest it fall into the category of purchase and sale, for if money is involved there will then be a sale, and if service, the remuneration for it. if a gift is to be valid the donor must be of full age, for if a minor makes a gift it will be ineffective since (if he so wishes) it shall be returned to him in its entirety when he reaches full age. also let the donor hold in his own name and not another's, otherwise his gift may be revoked. and let him, at the least, be of sound mind and good memory, though an invalid, ill and on his death bed, for a gift make under such conditions will be good if all the other [requirements] of a valid gift are met. for no one, provided he is of good memory, ought to be kept from the administration or disposition of his own property when affected by infirmity, since it is only then that he must make provision for his family, his household and relations, given stipends and settle his bequests; otherwise such persons might suffer damage without fault. but since charters are sometimes fraudulently drawn and gifts falsely taken to be made when they are not, recourse must therefore be had to the country and the neighborhood so that the truth may be declared." in bracton's view, a villein could buy his own freedom and the child of a mixed marriage was free unless he was born in the tenement of his villein parent. judicial procedure the royal court spawned several courts with different specialties and became more like departments of state than offices of the king's household. the justices were career civil servants knowledgeable in the civil and canon law. the court of the king's bench (a marble slab in westminster upon which the throne was placed) traveled with the king and primarily heard criminal cases and pleas of the crown. any use of force, however trivial, was interpreted as breach of the royal peace and could be brought before the king's bench. its records were the coram rege rolls. the court of common pleas primarily heard civil cases brought by one subject against another. pursuant to the magna carta, it sat only at one place, the great hall in westminster. it had concurrent jurisdiction with the king's bench over trespass cases. its records were the de banco rolls. the court of the exchequer with its subsidiary department of the treasury was in almost permanent session at westminster, primarily collecting the crown's revenue and enforcing the crown's rights. a department of the exchequer watched over the affairs of the jews. there was no sharp line demarking the jurisdictions of these courts. no pleas could be brought against the king; rather a petition was addressed to him, which he would answer by an executive writ. appeals from these courts could be made to the king and/or his small council. in , the justiciar as the principal royal executive officer and chief presiding officer over the royal court ended. in , a chief justiciar was appointed to hold pleas before the king. about the same time the presiding justice of the court of common pleas also came to be styled chief justice. henceforth, a justiciar was a royal officer who dealt only with judicial work. the justiciars were no longer statesmen or politicians, but rather men learned in the law. membership in or attendance at the great council or parliament no longer rested upon feudal tenure, but upon a writ of summons which was, to a degree, dependent on the royal will. crown pleas included issues of the king's property, fines due to him, murder (a body found with no witnesses to a killing), homicide (a killing for which there were witnesses), rape, wounding, mayhem, consorting, larceny, robbery, burglary, arson, poaching, unjust imprisonment, selling cloth by nonstandard widths, selling wine by nonstandard weights. crown causes were pled by the king's serjeants or servants at law, who were not clerics. apprentices at law learned pleading from them. between the proprietary action and the possessory assizes there is growing use in the king's courts of writs of entry, by which a tenant may be ordered to give up land, e.g. by a recent flaw in a tenant's title, for a term which has expired, by a widow for her late husband's land, or by an heir who has become of full age from his guardian. for instance: " ...command tertius that ... he render to claimant, who is of full age, as it is said, ten acres ...which he claims to be his right and inheritance and into which the said tertius has no entry save by secundus, to whom primus demised [gaged] them, who had only the wardship thereof while the aforesaid claimant was under age, as he says...". but most litigation about land is still through the writ of right for proprietary issues and the assizes of novel disseisin and mort d'ancestor for possessory issues. actions for debt; covenant; and account, e.g by a lord to his bailiff and receiver of his money, were actions in the king's court. royal itinerant justices, who were members of the royal courts, traveled on eyre on regular circuits to the counties every seven years. they had an administrative function as well as a judicial function. they gave interrogatories to local assizes of twelve men to determine what had happened there since the last eyre. information was aquired on royal proprietary rights, escheats, wardships, treasury matters, and official misdoings of royal officers, sheriffs, coroners, and bailiffs, which could be dealt with in an administrative way. (these administrative duties ceased in the first half of the s.) all boroughs had to send twelve burgesses who were to indict any burgesses suspected of breaking the royal law. every crime, every invasion of royal rights, and every neglect of police duties was to be presented and tried. suspects were held in gaol until their cases could be heard and gaol breaks were common. punishment after trial was prison for serious crimes, expulsion from the realm for less serious crimes, and pledges for good behavior for lesser crimes. fines and amercements both for individual criminal offenses and local communities' faults brought revenue into the exchequer as profits of justice. the king could increase fines and amercements or pardon a person found guilty. the visitation of these justices was anticipated with trepidation. in , the residents of cornwall hid in the woods rather than face the itinerant justices. (the court of the justices in eyre lasted until .) royal coroners held inquests on all sudden deaths to determine whether they were accidental or not. if not, royal justices held trial. they also had duties in treasure trove and shipwreck cases. justices of assize, justices of the peace, and itinerant justices operated at the county level. the traditional county courts had lost much jurisdiction to the royal courts and were now limited to personal actions in causes involving usually no more than s. the great majority of cases had to do with ) writ of right for recovery of land, ) the possessory assizes for the protection of possession, ) debt for recovery of money owed, such as rent ) detinue for detention of a chattel, such as beasts and ) convenant for breach of a contract, later to be limited to contracts under seal. there were also pleas of trespass and claims of fugitive villeins and their goods, nuisances, and encroachments. the action of trespass had broken free of the criminal law, which had been divided into the two categories of felony and trespass. but then the field of tort began to separate itself from that of crime and the more serious trespasses remained criminal while the less serious attached themselves to the civil sphere. the sheriff still constitutes and conducts the court, assisted by elected coroners. the earl of the county had little to do with its court except to take one-third of its profits of justice.the county court met every three or four weeks, usually in the sheriff's castle located in the chief borough of the county, but some met in the open air. it is attended by suitors, certain freeholders of the county who are bound to attend it, that is, to do suit to it. they are the judges of the court. the hundred court decided cases of theft, viewing of boundaries of land, claims for tenurial services, claims for homage, relief, and for wardship; enfeoffments made, battery and brawls not amounting to felony, wounding and maiming of beasts, collection of debts, trespass, detinue, and covenant, which now requires a sealed writing; defamation, and inquiries and presentments arising from the assizes of bread and ale and measures. the action of debt was used for five main purposes: ) money lent, ) the price of goods sold, ) arrears of rent due upon a lease for years, ) money due from a surety, and ) a debt confessed by a sealed document. a paid bailiff had responsibility for the hundred court, which met every three weeks. freeholders of these hundreds owe suit to it; these suitors are the judges. twice a year the sheriff visited each hundred in the county to hold a turn, a court for small offenses, such as encroachment of public land, brewing and baking contrary to government regulations, and use of dishonest weights and measures. everyone who held freehold land in the hundred except the greater magnates had to attend or be fined for absence. the sheriff annually viewed frankpledge, in which every layman without land that could be forfeited for felony, including villeins, were checked for being in a tithing, a group of neighbors responsible for each other's good conduct. this applied to every boy who had reached the age of twelve. he had to swear on the bible "i will be a lawful man and bear loyalty to our lord the king and his heirs, and i will be justiciable to my chief tithing man, so help me god and the saints." each tithing man paid a penny to the sheriff. the sheriff was the judge in his turn. coordinate with the sheriff's turn was a leet court, which had private jurisdiction over the same small offences. if a county or a hundred court gave a false judgment, it had to pay a fine. manorial courts were those in which a lord had for his tenants. it was presided over by the lord, or his steward, who decided the outcomes of cases, with or without the villeins attending it, based on the customs of the manor. it had a civil jurisdiction, and dealt typically with land issues and minor offenses, such as, actions when the amount at stake is less than s., of debt, detinue, trespass and covenant. s. was the equivalent of around oxen or sheep. usually, the lord's court had a single manor with a single vill. the cities and boroughs, having a degree of organization and independence, had municipal courts whose jurisdiction was determined by privileges.given by charter from the king or by prescription of ancient origin. court was held by the sheriff, and after a time by its mayor, at the borough's weekly meeting of its burgesses. the burgesses would take the profits of the court and the tolls and house-rents that had been paid to the sheriff. still in existence is the old self-help law of hamsocne, the thief hand-habbende, the thief back-berend, the old summary procedure where the thief is caught in the act, aethelstan's laws, and edward the confessor's laws. under the name of "actio furti" [appeal of larceny] is the old process by which a thief can be pursued and goods vindicated. as before and for centuries later, deodands were forfeited to the king to appease god's wrath. these chattel which caused the death of a person were usually oxen, carts, cart teams, horses, boats, cauldrons, or millwheels. then they were forfeited to the community, which paid the king their worth. sometimes the justices named the charitable purpose for which the deodand was to be spent, such as the price of a boat to go to the repair of a bridge. five cases from a county court are: ) "john croc was drowned from his horse and cart in the water of bickney. judgment: misadventure. the price of the horse and cart is s. d. deodand." ) "willam ruffus was crushed to death by a certain trunk. the price of the trunk is d., for which the sheriff is to answer. d. deodand." ) "william le hauck killed edric le poter and fled, so he is -to be exacted and outlawed. he was in the tithing of reynold horloc in clandon of the abbot of chertsey (west clandon), so it is in mercy. his chattels were s., for which the bailiff of the abbot of chertsey is to answer." ) "richard de bregsells, accused of larceny, comes and denies the whole and puts himself on the country for good or ill. the twelve jurors and four vills say that he is not guilty, -so he is quit." ) william le wimpler and william vintner sold wine contrary to the statute, so they are in mercy. other cases dealt with issues of entry, e.g. whether land was conveyed or just rented; issues of whether a man was free, for which his lineage was examined; issues of to which lord a villein belonged; issues of nuisance such as making or destroying a bank, ditch, or hedge; diverting a watercourse or damming it to make a pool; obstructing a road, and issues of what grazing rights were conveyed in pasture land, waste, woods, or arable fields between harvest and sowing. grazing right disputes usually arose from the ambiguous language in the grant of land "with appurtenances". courts awarded specific relief as well as money damages. if a landlord broke his covenant to lease land for a term of years, the court restored possession to the lessee. if a lord did not perform the services due to his superior lord, the court ordered him to perform the services. the courts also ordered repair by a lessee. debts of country knights and freeholders were heard in the local courts; debts of merchants and burgesses were heard in the courts of the fairs and boroughs; debts due under wills and testaments were heard in the ecclesiastical courts. the ecclesiastical courts deemed marriage to legitimize bastard children whose parents married, so they inherited personal property and money of their parents. proof was by compurgation. church law required excommunication to be in writing with the reasons therefore, and a copy given to the excommunicant. a church judge was required to employ a notary or two men to write down all acts of the judge and to give a copy to the parties to protect against unjust judges. no cleric was allowed to pronounce or execute a sentence of death or to take part in judicial tests or ordeals. anyone knowingly accepting a stolen article was required to restore it to its owner. heretics were to be excommunicated. trial by combat is still available, although it is extremely rare for it to take place. in the appeal of felony, when offered combat, a defendant could choose between combat and recourse to a verdict of his neighbors. the manor court imposed penalties on those who did not perform their services to the manor and the lord wrote down the customs of the manor for future use in other courts. by statute, no fines could be taken of any man for fair pleading in the circuit of justiciars, county, hundred, or manor courts. various statutes relaxed the requirements for attendance at court of those who were not involved in a case as long as there were enough to make the inquests fully. and "every freeman who owes suit to the county, tything, hundred, and wapentake, or to the court of his lord, may freely make his attorney attend for him." all above the rank of knight were exempted from attendance on the sheriff's turn, unless specifically summoned. prelates and barons were generally excepted from the county courts by the charters of their estates. charters of boroughs often excepted their representatives at the county court when there were no justices. some barons and knights paid the sheriff to be excused. the king often relieved the simple knights by special license. there was frequently a problem of not having enough knights to hold the assizes. henry iii excused the attendance at hundred courts of all but those who were bound to special service, or who were concerned in suits. trespass has become a writ of course in the common law. it still involves violence, but its element of breach of the peace extends to those breaches which do not amount to felony. it can include assault and battery, physical force to land, and physical force to chattels, e.g. assaulting and beating the plaintiff, breaking into his close, or carrying off his goods. one found guilty is fined and imprisoned. as in criminal matters, if a defendant does not appear at court, his body can be seized and imprisoned, and if he cannot be found, he may be outlawed. trespass to goods results in damages, rather than the return of the goods. various cases from the manors of the abbey of bec in - are: . ragenilda of bec gives s. for having married without licence. pledge, william of pinner. the same ragenilda demands against roger loft and juliana his wife a certain messuage which belonged to robert le beck, and a jury of -twelve lawful men is granted her in consideration of the said fine, and if she recovers seisin she will give in all s. and twelve jurors are elected, to wit, john of hulle, william maureward, robert hale walter but, walter sigar, william brihtwin, richard horseman, richard leofred, william john's son, hugh cross, richard pontfret and robert croyser, john bisuthe and gilbert bisuthe who are sworn. and they say that the said ragenilda has the greater right. therefore let her have seisin. . richard guest gives d. and if he recovers will give s. to have a jury of twelve lawful men as to whether he has the greater right in a certain headland at eastcot which ragenilda widow of william andrews holds, or the said ragenilda. pledges for the fine, john brook and richard of pinner. and the said ragenilda comes and says that she has no power to bring that land into judgment because she has no right in it save by reason of the wardship of the son and heir of her husband, who is under age. and richard is not able to deny this. therefore let him await [the heir's] full age. . walter hulle gives s. d. for licence to dwell on the land of the prior of harmondsworth so long as he shall live and as a condition finds pledges, to wit, william slipper, john bisuthe, gilbert bisuthe, hugh tree, william john's son, john hulle, who undertake that the said walter shall do to the lord all the services and customs which he would do if he dwelt on the lord's land and that his heriot shall be secured to the lord in case he dies there [i.e. at harmondsworth]. . geoffrey sweyn demands the moiety of one virgate of land which john crisp and alina hele hold, and he gives s. to have a jury, and if he recovers will give s. and the said jurors come and say upon their oath that the said geoffrey has no right in the said land. therefore let the said tenants go thence without day and let the said geoffrey pay s. pledges, hugh bussel and godfrey francis. . juliana saer's daughter demands as her right the moiety of one messuage with a croft, which messuage william snell and goda his wife, sister of the said juliana hold. and they have made accord by leave [of the court] to the effect that the said william and goda give to the said juliana a barn and the curtilage nearest the green and two selions [a ridge of land between two furrows] in the western part of the said croft [a small enclosed field]. and the said william put himself in mercy. fine, d. . hugh of stanbridge complains of gilbert vicar's son and william of stanbridge that the wife of the said gilbert who is of [gilbert's] mainpast and the said william unjustly etc. beat and unlawfully struck him and dragged him by his hair out of his own proper house, to his damage s. and to his dishonor s., and [of this] he produces suit. and gilbert and william come and defend all of it fully. therefore let each of them go to his law six-handed. afterwards they make accord to this effect that in case the said hugh shall hereafter in any manner offend against [gilbert and william] and thereof shall be convicted he will give the lord s. d. by way of penalty and will make amends to [gilbert and william] according to the judgment of six lawful men, and the others on their part will do the like by him. and hugh put himself in mercy. fine, s. pledges, john tailor and walter brother. . breakers of the assize [of beer:] william idle (fined d.), maud carter's widow ( d.), walter carter. . john witriche in mercy for carrying off thorns. fine, d. . robert dochi in mercy (fine, d.) for divers trespasses. pledges, gilbert priest's son, ralph winbold and walter green. . ailwin crisp in mercy for his cow caught in the lord's pasture when ward had been made. fine, d. . john bernard in mercy for his beasts caught by night in the lord's meadow. fine, s. . richard love gives d. to have a jury of twelve touching a rod of land which robert of brockhole and juliana his wife hold. this action is respited to the next court [when the jurors are to come] without further delay. afterwards the jurors come and say upon their oath that the said richard has the greater right in the said land. therefore let him have seisin. . william blackbeard in mercy for not coming with his law as he was bound to do. pledges, geoffrey of wick and geoffrey payn. fine, d. . it was presented that stephen shepherd by night struck his sister with a knife and grievously wounded her. therefore let him be committed to prison. afterwards he made -fine with s. pledge, geoffrey of wick. . it was presented that robert carter's son by night invaded the house of peter burgess and in felony threw stones at his door so that the said peter raised the hue. therefore let the said robert be committed to prison. afterwards he made fine with s. . nicholas drye, henry le notte (fine, d.) and thomas hogue (fine, d.) were convicted for that they by night invaded the house of sir thomas the chaplain and forcibly expelled thence a man and woman who had been taken in there as guests. therefore they are in mercy. pledges of the said thomas, richard of lortemere and jordan of paris. pledges of the said henry, richard pen...and richard butry. . adam moses gives half a sextary of wine to have an inquest as to whether henry ayulf accused him of the crime of larceny and used opprobrious and contumelious words of him. afterwards they made accord and henry finds security for an amercement. fine, d. . isabella sywards in mercy for having sold to richard bodenham land that she could not warrant him. . all the ploughmen of great ogbourne are convicted by the oath of twelve men....because by reason of their default [the land] of the lord was ill ploughed whereby the lord is damaged to the amount of s.... and walter reaper is in mercy for concealing [i.e. not giving information as to] the said bad ploughing. afterwards he made fine with the lord with mark. . from ralph joce s. d. for his son, because he [the son] unlawfully carried off grain from the lord's court. pledge,geoffrey joce. . from henry pink d. for a trespass by waylaying. . from eve corner d. for a trespass of her pigs. . from ralph scales d. for timber carried off. . from william cooper d. for ploughing his own land with the lord's plough without licence. . from hugh newman d. for trespass in the wood. . from richard penant d. for the same. . from helen widow of little ogbourne d. for the same. . from nicholas siward d. for a false complaint against william pafey. . from william pafey d. for fighting with the said nicholas. . from the widow of ralph shepherd d. for a trespass in pencombe. . richard blund gives a half-mark and if he recovers will -give two marks and a half to have a jury of the whole court, to inquire whether he has the greater right in a virgate of land which hugh frith holds in wardship with cristiana daughter of simon white, or the said cristiana. pledges for the fine, richard dene, william hulle, john of senholt, hugh smith, and william ketelburn. and the whole court say upon their oath that the said richard has greater right in the said land than anyone else. therefore let him recover his seisin. -....miller gives d. [the latin translates as s.] for a trespass against the assize of beer and because the lord's grain has been ill kept at the mill. pledges, john orped and joce serjeant. . noah gives s. in the same way for an inquest as to one acre. afterwards they submit themselves to arbitrators, who adjudge that the said robert shall pay s. to the said roger and s. to the said gilbert and s. to the said noah, and that he will do so [robert] finds pledges. . ralph bar in mercy for having beaten one of the lord's men. pledges, herbert rede and ralph brunild. . for the common fine of the township, a half-mark. . john boneffiant found pledges, to wit, william smith and william of bledlow, that he will not eloign himself from the lord's land and that he will be prompt to obey the lord's summons. chapter the times: - king edward i was respected by the people for his good government, practical wisdom, and genuine concern for justice for everyone. he loved his people and wanted them to love him. he came to the throne with twenty years experience governing lesser lands on the continent which were given to him by his father henry iii. he spoke latin, english, and french. he gained a reputation as a lawgiver and as a peacemaker in disputes on the continent. his reputation was so high and agreement on him as the next king so strong that england was peaceful in the almost two years that it took him to arrive there from continental business. he was truthful, law-abiding, and kept his word. he had close and solid family relationships, especially with his father and with his wife eleanor, to whom he was faithful. he was loyal to his close circle of good friends. he valued honor and adhered reasonably well to the terms of the treaties he made. he was generous in carrying out the royal custom of subsidizing the feeding of paupers. he visited the sick. he was frugal and dressed in plain, ordinary clothes rather than extravagant or ostentatious ones. he disliked ceremony and display. at his accession, there was a firm foundation of a national law administered by a centralized judicial system, a centralized executive, and an organized system of local government in close touch with both the judicial and the executive system. to gain knowledge of his nation, he sent royal commissioners into every county to ask about any encroachments on the king's rights and about misdeeds by any of the king's officials: sheriffs, bailiffs, or coroners. the results were compiled as the "hundred rolls". they were the basis of reforms which improved justice at the local as well as the national level. they also rationalized the array of jurisdictions that had grown up with feudal government. statutes were passed by a parliament of two houses, that of peers (lords) and that of an elected [rather than appointed] commons, and the final form of the constitution was fixed. a wife was expected to obey her husband. a husband was deemed the guardian of his wife. if he starved or mistreated her, he was subject to punishment by the church court, even excommunication if necessary. the king's court punished a husband who killed or maimed his wife. the common law as to husband and wife took a final shape with six basic principles: . a husband, but not the wife, could alienate his wife's land during the marriage, but not to take effect after his death, e.g. by will. . a widow was entitled for her life a dower of one-third of any land by her husband. . the husband can take possession of the wife's chattels and can alienate them during his life without her permission. he can sue for all debts due her without her permission. if he survives her, he is entitled to be administrator of her estate. she can make no will without his permission. . the husband can give away all his chattels, except for her necessary clothes and her jewelry and paraphernalia. . the husband is liable for debts incurred or wrongs committed by his wife even before their marriage. . a wife cannot contract on her own behalf, but may purchase on credit certain necessaries and household goods. the church elaborated on these principles with a doctrine for women-covert, i.e. women under the protection or coverture of a husband, and not living separately such as when a man went to sea or to war. she had a right to the necessities of life. her jewelry, but not her apparel, could go to his creditors if his assets didn't cover his debts. the husband also had the right to the rents and profits from his wife's real estate, but not the real estate itself, unless by the birth of a child he became tenant for life by courtesy. only the father, but not the mother had authority over their children. a father had a right to his child's services, and could sue a third party for abducting, enticing away, or injuring the child, just as he could for his servants. a husband was answerable for a wife's torts and trespasses, except for battery. for this reason, he was allowed to chastise her, restrain her liberty for gross misbehavior, and punish her by beating for some misdemeanors. if she was a merchant when she married, she could still sell her goods in the open market. there could be no divorce, but only separation. if separated, she had a right to alimony from him to maintain herself. there were many conveyances of land to husband and wife and their heirs. this created a tenancy by the entirety. this land could not be alienated by only one spouse without the other. on the death of one spouse, the surviving spouse became the sole tenant of the whole. wardships of children and widows were sought because they were very profitable. a guardian could get one tenth of the income of the property during the wardship and a substantial marriage amount when the ward married. parents often made contracts to marry for their young children. this avoided a forced marriage by a ward should the parents die. most earldoms and many baronages came into the royal house by escheat or marriage. the royal house employed many people. the barons developed a class consciousness of aristocracy and became leaders of society. many men, no matter of whom they held land, sought knighthood. the king granted knighthood by placing his sword on the head of able-bodied and moral candidates who swore an oath of loyalty to the king and to defend "all ladies, gentlewomen, widows and orphans" and to "shun no adventure of your person in any war wherein you should happen to be". a code of knightly chivalry became recognized, such as telling the truth and setting wrongs right. about half of the knights were literate. in , the king issued a writ ordering all freeholders who held land of the value of at least s. to receive knighthood at the king's hands. at the royal house and other great houses gentlemanly jousting competitions, with well-refined and specific rules, took the place of violent tournaments with general rules. edward forbade tournaments at which there was danger of a "melee". at these knights competed for the affection of ladies by jousting with each other while the ladies watched. courtly romances were common. if a man convinced a lady to marry him, the marriage ceremony took place in church, with feasting and dancing afterwards. romantic stories were at the height of their popularity. a usual theme was the lonely quest of a knight engaged in adventures which would impress his lady. riddles include: . i will make you a cross, and a thing will not touch you, and you will not be able to leave the house without breaking that cross. answer: stand before a post in your house, with your arms extended. . what you do not know, and i do not know, and no one can know after i have told you. answer: i will take a straw from the floor of the room, measure its inches, tell you the length, and break the straw. . a pear tree bears all the fruit a pear tree can bear and did not bear pears. answer: it bore only one pear. the dress of the higher classes was very changeable and subject to fashion as well as function. ladies no longer braided their hair in long tails, but rolled it up in a net under a veil, often topped with an elaborate and fanciful headdress. they wore non- functional long trains on their tunics and dainty shoes. men wore a long gown, sometimes clasped around the waist. overtunics were often lined or trimmed with native fur such as squirrel. people often wore solid red, blue, or green clothes. only monks and friars wore brown. the introduction of buttons and buttonholes to replace pins and laces made clothing warmer, and it could be made tighter. after edward i established the standard inch as three continuous dried barleycorns, shoes came in standard sizes and with a right one different from a left one. the spinning wheel came into existence to replace the handheld spindle. now one hand could be used to form the thread while the other hand turned a large upright wheel that caused the thread to wind around the spindle, which did not have to be held by hand. this resulted in an uninterrupted spinning motion which was not interrupted by alternately forming the thread and winding it on the spindle. in the s, there were extremes of fashion in men's and women's clothing including tight garments, pendant sleeves down to the ground, coats so short they didn't reach the hips or so long they reached the heels, hoods so small they couldn't cover the head, and shoes with long curved peaks like claws at the toes. both men and women wore belts low on the hips. the skirt of a lady's tunic was fuller and the bodice more closely fitted than before. her hair was usually elaborately done up, e.g. with long curls or curled braids on either side of the face. a jeweled circlet was often worn around her head. ladies wore on their arms or belts, cloth handbags, which usually contained toiletries, such as combs made of ivory, horn, bone, or wood, and perhaps a little book of devotions. a man wore a knife and a bag on his belt. some women painted their faces and/or colored their hair. there were hand- held glass mirrors. some people kept dogs purely as pets. there was a great development of heraldic splendor with for instance, crests, coat-armor, badges, pennons [long, triangular flag], and helmets. they descended through families. not only was it a mark of service to wear the badge of a lord, but lords wore each other's badges by way of compliment. lords surrounded themselves with people of the next lower rank, usually from nearby families, and had large households. for instance, the king had a circle of noblemen and ladies about him. a peer or great prelate had a household of about - people, among which were his inner circle, companions, administrators, secretaries, bodyguards and armed escort, chaplain, singing priests and choirboys, and servants. all officers of the household were gentlemen. the secretary was usually a clerk, who was literate because he had taken minor clerical orders. since the feudal obligation of the tenants was disappearing, a lord sometimes hired retainers to supplement his escort of fighting men. they proudly wore his livery of cloth or hat, which was in the nature of a uniform or badge of service. a nobleman and his lady had a circle of knights and gentlemen and their ladies. a knight had a circle of gentlemen and their ladies. the great barons lived in houses built within the walls of their castles. lesser barons lived in semi-fortified manors, many of which had been licensed to be embattled or crenelated. their halls were two stories high, and usually built on the first rather than on the second floor. windows came down almost to the floor. the hall had a raised floor at one end where the lord and lady and a few others sat at a high table. the hearth was in the middle of the room or on a wall. sometimes a cat was used to open and shut the louvers of the smoke outlet in the roof. the lord's bedroom was next to the hall on the second floor and could have windows into the hall and a spiral staircase connecting the two rooms. there was a chapel, in which the lord attended mass every morning. the many knights usually lived in unfortified houses with two rooms. in the great houses, there were more wall hangings, and ornaments for the tables. the tables were lit with candles or torches made of wax. plates were gold and silver. the lord, his lady, and their family and guests sat at the head table, which was raised on a dais. on this high table was a large and elaborate salt cellar. one's place in relationship to the salt cellar indicated one's status: above or below the salt. also, those of higher status at the table ate a superior bread. the almoner [alms giver] said grace. gentlemen poured the lord's drink [cupbearer], served his meat [carver], and supervised the serving of the food [sewer]. a yeoman ewery washed the hands of the lord and his guests and supplied the napkins, ewers [pitchers], and basins. a yeoman cellarer or butler served the wine and beer. the yeoman of the pantry served the bread, salt, and cutlery. the steward presided over the table of household officers of gentle birth. the marshall of the hall, clerk of the kitchen, or other yeomen officers supervised other tables. salt and spices were available at all tables. most people ate with their fingers, although there were knives and some spoons. drinking vessels were usually metal, horn, or wood. a marshall and ushers kept order. minstrels played musical instruments or recited histories of noble deeds or amusing anecdotes. reading aloud was a favorite pastime. the almoner collected the leftovers to distribute to the poor. in lesser houses people ate off trenchers [a four day old slab of coarse bread or a piece of wood with the middle scooped out like a bowl], or plates of wood or pewter [made from tin, copper, and lead]. they often shared plates and drinking vessels at the table. queen eleanor, a cultivated, intelligent, and educated lady from the continent, fostered culture and rewarded individual literary efforts, such as translations from latin, with grants of her own money. she patronized oxford and cambridge universities and left bequests to poor scholars there. she herself had read aristotle and commentaries thereon, and she especially patronized literature which would give cross-cultural perspectives on subjects. she was kind and thoughtful towards those about her and was also sympathetic to the afflicted and generous to the poor. she shared edward's career to a remarkable extent, even accompanying him on a crusade. she had an intimate knowledge of the people in edward's official circle and relied on the advice of two of them in managing her lands. she mediated disputes between earls and other nobility, as well as softened her husband's temper towards people. edward granted her many wardships and marriages and she arranged marriages with political advantages. she dealt with envoys coming to the court. her intellectual vitality and organized mentality allowed her to deal with arising situations well. edward held her in great esteem. she introduced to england the merino sheep, which, when bred with the english sheep, gave them a better quality of wool. she and edward often played games of chess and backgammon. farm efficiency was increased by the use of windmills in the fields to pump water and by allowing villeins their freedom and hiring them as laborers only when needed. customary service was virtually extinct. a man could earn d. for reaping, binding, and shocking into a pile, an acre of wheat. a strong man with a wife to do the binding could do this in a long harvest day. harvests were usually plentiful, with the exception of two periods of famine over the country due to weather conditions. then the price of wheat went way up and drove up the prices of all other goods correspondingly. the story of outlaw robin hood, who made a living by robbing, was passed around. this robin hood did not give to the poor. but generally, there was enough grain to store so that the population was no longer periodically devastated by famine. the population grew and all arable land in the nation came under the plough. the acre was standardized. about , the price of an ox was s., a heifer or cow s., a hide s. d., a cart horse or pounds. farm women went to nearby towns to sell eggs and dairy products, usually to town women. although manors needed the ploughmen, the carters and drivers, the herdsmen, and the dairymaid on a full-time basis, other tenants spent increasing time in crafts and became village carpenters, smiths, weavers or millers' assistants. trade and the towns grew. smiths used coal in their furnaces. money rents often replaced service due to a lord, such as fish silver, malt silver, or barley silver. the lord's rights are being limited to the rights declared on the extents [records showing service due from each tenant] and the rolls of the manor. sometimes land is granted to strangers because none of the kindred of the deceased will take it. often a manor court limited a fee in land to certain issue instead of being inheritable by all heirs. surveyors' poles marked boundaries declared by court in boundary disputes. this resulted in survey maps showing villages and cow pastures. the revival of trade and the appearance of a money economy was undermining the long-established relationship between the lord of the manor and his villeins. as a result, money payments were supplementing or replacing payments in service and produce as in martham, where thomas knight held twelve acres in villeinage, paid d. for it and d. in special aids. "he shall do sixteen working days in august and for every day he shall have one repast - viz. bread and fish. he shall hoe ten days without the lord's food - price of a day / d. he shall cart to norwich six cartings or shall give d., and he shall have for every carting one leaf and one lagena - or gallon - of ale. also for ditching d. he shall make malt / seams of barley or shall give d. also he shall flail for twelve days or give d. he shall plough if he has his own plough, and for every ploughing he shall have three loaves and nine herrings ... for carting manure he shall give ." another example is this manor's holdings, when d. would buy food for a day: "extent of the manor of bernehorne, made on wednesday following the feast of st. gregory the pope, in the thirty-fifth year of the reign of king edward, in the presence of brother thomas, keeper of marley, john de la more, and adam de thruhlegh, clerks, on the oath of william de gocecoumbe, walter le parker, richard le knyst, richard the son of the latter, andrew of estone, stephen morsprich, thomas brembel, william of swynham, john pollard, roger le glide, john syward, and john de lillingewist, who say that there are all the following holdings:... john pollard holds a half acre in aldithewisse and owes d. at the four terms, and owes for it relief and heriot. john suthinton holds a house and acres of land and owes s. d. at easter and michaelmas. william of swynham holds one acre of meadow in the thicket of swynham and owes d. at the feast of michaelmas. ralph of leybourne holds a cottage and one acre of land in pinden and owes s. at easter and michaelmas, and attendance at the court in the manor every three weeks, also relief and heriot. richard knyst of swynham holds two acres and a half of land and owes yearly s. william of knelle holds two acres of land in aldithewisse and owes yearly s. roger le glede holds a cottage and three roods of land and owes s. d. easter and michaelmas. alexander hamound holds a little piece of land near aldewisse and owes one goose of the value of d. the sum of the whole rent of the free tenants, with the value of the goose, is s. d. they say, moreover, that john of cayworth holds a house and acres of land, and owes yearly s. at easter and michaelmas; and he owes a cock and two hens at christmas of the value of d. and he ought to harrow for two days at the lenten sowing with one man and his own horse and his own harrow, the value of the work being d.; and he is to receive from the lord on each day three meals, of the value of d., and then the lord will be at a loss of d. thus his harrowing is of no value to the service of the lord. and he ought to carry the manure of the lord for two days with one cart, with his own two oxen, the value of the work being d.; and he is to receive from the lord each day three meals at the value as above. and thus the service is worth d. clear. and he shall find one man for two days, for mowing the meadow of the lord, who can mow, by estimation, one acre and a half, the value of the mowing of an acre being d.: the sum is therefore d. and he is to receive each day three meals of the value given above. and thus that mowing is worth d. clear. and he ought to gather and carry that same hay which he has cut, the price of the work being d. and he shall have from the lord two meals for one man, of the value of / d. thus the work will be worth / d. clear. and he ought to carry the hay of the lord for one day with a cart and three animals of his own, the price of the work being d. and he shall have from the lord three meals of the value of / d. and thus the work is worth / d. clear. and he ought to carry in autumn beans or oats for two days with a cart and three animals of his own, the value of the work being d. and he shall receive from the lord each day three meals of the value given above. and thus the work is worth d. clear. and he ought to carry wood from the woods of the lord as far as the manor, for two days in summer, with a cart and three animals of his own, the value of the work being d. and he shall receive from the lord each day three meals of the price given above. and thus the work is worth d. clear. and he ought to find one man for two days to cut heath, the value of the work being d., and he shall have three meals each day of the value given above: and thus the lord will lose, if he receives the service, d. thus that mowing is worth nothing to the service of the lord. and he ought to carry the heath which he has cut, the value of the work being d. and he shall receive from the lord three meals at the price of / d. and thus the work will be worth / d. clear. and he ought to carry to battle, twice in the summer season, each time half a load of grain, the value of the service being d. and he shall receive in the manor each time one meal of the value of d. and thus the work is worth d. clear. the totals of the rents, with the value of the hens, is s. d. the total of the value of the works is s. / d., being owed from the said john yearly. william of cayworth holds a house and acres of land and owes at easter and michaelmas s. rent. and he shall do all customs just as the aforesaid john of cayworth. william atte grene holds a house and acres of land and owes in all things the same as the said john. alan atte felde holds a house and acres of land (for which the sergeant pays to the court of bixley s.), and he owes at easter and michaelmas s., attendance at the manor court, relief, and heriot. john lyllingwyst holds a house and four acres of land and owes at the two terms s., attendance at the manor court, relief, and heriot. the same john holds one acre of land in the fields of hoo and owes at the two periods s., attendance, relief, and heriot. reginald atte denne holds a house and acres of land and owes at the said periods d., attendance, relief, and heriot. robert of northehou holds three acres of land at saltcote and owes at the said periods attendance, relief, and heriot. total of the rents of the villeins, with the value of the hens, s. total of all the works of these villeins, s. / d. and it is to be noted that none of the above-mentioned villeins can give their daughters in marriage, nor cause their sons to be tonsured, nor can they cut down timber growing on the lands they hold, without licence of the bailiff or sergeant of the lord, and then for building purposes and not otherwise. and after the death of any one of the aforesaid villeins, the lord shall have as a heriot his best animal, if he had any; if, however, he have no living beast, the lord shall have no heriot, as they say. the sons or daughters of the aforesaid villeins shall give, for entrance into the holding after the death of their predecessors, as much as they give of rent per year. sylvester, the priest, holds one acre of meadow adjacent to his house and owes yearly s. total of the rent of tenants for life, s. petronilla atte holme holds a cottage and a piece of land and owes at easter and michaelmas - ; also, attendance, relief, and heriot. walter herying holds a cottage and a piece of land and owes at easter and michaelmas d., attendance, relief, and heriot. isabella mariner holds a cottage and owes at the feast of st. michael d., attendance, relief, and heriot. jordan atte melle holds a cottage and / acres of land and owes at easter and michaelmas s., attendance, relief, and heriot. william of batelesmere holds one acre of land with a cottage and owes at the feast of st. michael d., and one cock and one hen at christmas of the value of d., attendance, relief, and heriot. john le man holds half an acre of land with a cottage and owes at the feast of st. michael s., attendance, relief, and heriot. hohn werthe holds one rood of land with a cottage and owes at the said term d., attendance, relief, and heriot. geoffrey caumbreis holds half an acre and a cottage and owes at the said term d., attendance, relief, and heriot. william hassok holds one rood of land and a cottage and owes at the said term d., attendance, relief, and heriot. the same man holds / acres of land and owes yearly at the feast of st. michael s. for all. roger doget holds half an acre of land and a cottage, which were those of r. the miller, and owes at the feast of st. michael d., attendance, relief, and heriot. thomas le brod holds one acre and a cottage and owes at the said term s., attendance, relief, and heriot. agnes of cayworth holds half an acre and a cottage and owes at the said term d., attendance, relief, and heriot. total of the rents of the said cottagers, with the value of the hens, s. d. and it is to be noted that all the said cottagers shall do as regards giving their daughters in marriage, having their sons tonsured, cutting down timber, paying heriot, and giving fines for entrance, just as john of cayworth and the rest of the villeins above mentioned." the above fines and penalties, with heriots and reliefs, are worth s. yearly. often one village was divided up among two or more manors, so different manorial customs made living conditions different among the villagers. villages usually had carpenters, smiths, saddlers, thatchers, carters, fullers, dyers, soapmakers, tanners, needlers, and brassworkers. each villein had his own garden in which to grow fruit and vegetables next to his house, a pig (which fattened more quickly than other animals), strips in the common field, and sometimes an assart [a few acres of his own to cultivate as he pleased on originally rough uncultivated waste land beyond the common fields and the enclosed common pastures and meadows]. most villeins did not venture beyond their village except for about ten miles to a local shrine or great fair a couple times a year. at the fair might be fish, honey, spices, salt, garlic, oil, furs, silks, canvas, soap, pans, pots, grindstones, coal, nails, tar, iron, shovels, brushes, pails, horses, and packsaddles. early apothecaries might sell potions there. men and women looking for other employment might attend to indicate their availability. under edward i, villages were required to mount watches to protect life and property and were called upon to provide one man for the army and to pay his wages. people told time by counting the number of rings of the church bell, which rang on the hour. every sunday, the villagers went to church, which was typically the most elaborate and centrally located building in the village. the parishioners elected churchwardens, who might be women. this religion brought comfort and hope of going to heaven, rather than hell, after judgment by god at death if sin was avoided or forgiven. on festival days, bible stories, legends, and lives of saints were read or performed as miracle dramas. they learned to avoid the devil, who was influential in lonely places like forests and high mountains. at death, the corpse was washed, shrouded, and put into a rectangular coffin with a cross on its lid. priests sang prayers amid burning incense for the deliverance of the soul to god while interring the coffin into the ground. men who did not make a will risked the danger of an intestate and unconfessed death. the personal property of a man dying intestate now went to the church as a trust for the dead man's imperiled soul instead of to the man's lord. unqualified persons entered holy orders thereby obtaining "benefit of clergy", and then returned to secular employments retaining this protection. a villein could be forever set free from servitude by his lord as in this example: "to all the faithful of christ to whom the present writing shall come, richard, by the divine permission, abbot of peterborough and of the convent of the same place, eternal greeting in the lord: let all know that we have manumitted and liberated from all yoke of servitude william, the son of richard of wythington, whom previously we have held as our born bondman, with his whole progeny and all his chattels, so that neither we nor our successors shall be able to require or exact any right or claim in the said william, his progeny, or his chattels. but the same william, with his whole progeny and all his chattels, shall remain free and quit and without disturbance, exaction, or any claim on the part of us or our successors by reason of any servitude forever. we will, moreover, and concede that he and his heirs shall hold the messuages, land, rents, and meadows in wythington which his ancestors held from us and our predecessors, by giving and performing the fine which is called merchet for giving his daughter in marriage, and tallage from year to year according to our will, - that he shall have and hold these for the future from us and our successors freely, quietly, peacefully, and hereditarily, by paying to us and our successors yearly s. sterling, at the four terms of the year, namely: at st. john the baptist's day s., at michaelmas s., at christmas s., and at easter s., for all service, exaction, custom, and secular demand; saving to us, nevertheless, attendance at our court of castre every three weeks, wardship, and relief, and outside service of our lord the king, when they shall happen. and if it shall happen that the said william or his heirs shall die at any time without an heir, the said messuage, land rents, and meadows with their appurtenances shall return fully and completely to us and our successors. nor will it be allowed to the said william or his heirs to give, sell, alienate, mortgage, or encumber in any way, the said messuage, land, rents, and meadows, or any part of them, by which the said messuage, land, rents, and meadows should not return to us and our successors in the form declared above. and if this should occur later, their deed shall be declared null, and what is thus alienated shall come to us and our successors... given at borough, for the love of lord robert of good memory, once abbot, our predecessor and maternal uncle of the said william, and at the instance of the good man, brother hugh of mutton, relative of the said abbot robert, a.d. , on the eve of pentecost." villeins who were released from the manorial organization by commutation of their service for a money payment took the name of their craft as part of their name, such as, for the manufacture of textiles, weaver, draper, comber, fuller, napper, cissor, tailor, textor; for metalwork, faber, ironmonger; for leatherwork, tanner; for woodwork, building and carpentry, carpenter, cooper, mason, pictor; for food production, baker, pistor. iron, tin, lead, salt, and even coal were providing increasing numbers of people with a livelihood. many new boroughs were founded as grants of market rights by the king grew in number. these grants implied the advantage of the king's protection. in fact, one flooded town was replaced with a new town planned with square blocks. it was the charter which distinguished the borough community from the other communities existing in the country. it invested each borough with a distinct character. the privileges which the charter conferred were different in different places. it might give trading privileges: freedom from toll, a guild merchant, a right to hold a fair. it might give jurisdictional privileges: a right to hold court with greater or less franchises. it might give governmental privileges: freedom from the burden of attending the hundred and county courts, the return of writs, which meant the right to exclude the royal officials, the right to take the profits of the borough, paying for them a fixed sum to the crown or other lord of the borough, the right to elect their own officials rather than them being appointed by the king or a lord, and the right to provide for the government of the borough. it might give tenurial privileges: the power to make a will of lands, or freedom from the right of a lord to control his tenants' marriages. it might give procedural privileges: trial by combat is excluded, and trial by compurgation is secured and regulated. these medieval borough charters are very varied, and represent all stages of development and all grades of franchise. boroughs bought increasing rights and freedoms from their lord, who was usually the king. in the larger towns, where cathedrals and public building were built, there arose a system for teaching these technical skills and elaborate handicraft, wood, metal, stained glass, and stone work. a boy from the town would be bound over in apprenticeship to a particular craftsman, who supplied him with board and clothing. the craftsman might also employ men for just a day. these journeymen were not part of the craftsman's household as was the apprentice. after a few years of an apprenticeship, one became a journeyman and perfected his knowledge of his craft and its standards by seeing different methods and results in various towns. he was admitted as a master of his trade to a guild upon presenting an article of his work worthy of that guild's standard of workmanship: his "masterpiece". women, usually wives of brethren only, could be admitted. the tailors' guild and the skinners' guild are extant now. when guilds performed morality plays based on bible stories at town festivals, there was usually a tie between the bible story and the guild's craft. for instance, the story of the loaves and fishes would be performed by the bakers' or fishmongers' guild. the theme of the morality play was the fight of the seven cardinal virtues against the seven deadly sins for the human soul, a life- long battle. the number seven was thought to have sacred power; there were seven sacraments, seven churches in the biblical apocalypse, seven liberal arts and seven devilish arts. the seven sacraments were: baptism, confirmation, lord's supper, penance, orders, matrimony, and extreme unction. a borough was run by a mayor elected usually for life. by being members of a guild, merchant-traders and craftsmen acquired the legal status of burgesses and had the freedom of the borough. each guild occupied a certain ward of the town headed by an alderman. the town aldermen, who were unpaid, made up the town council, which advised the mayor. the mayor of london received pounds for hospitality, but in small towns, s. sufficed. often there were town police, bailiffs, beadles [messengers], a town crier, and a town clerk. london offices included recorder, prosecutor, common sergeant, and attorneys. in the center of town were the fine stone houses, a guildhall with a belfry tower, and the marketplace - a square or broad street, where the town crier made public announcements with bell or horn. here too was the ducking stool for scandalmongers and the stocks which held offenders by their legs and perhaps their hands to be scorned and pelted by bystanders with, for instance, rotten fruit and filth. no longer were towns dominated by the local landholders. in london there were royal princes, great earls, barons, knights, and female representatives of the peerage (counted in ). there was a wall with four towers surrounding the white tower, and this castle was known as the tower of london. another wall and a moat were built around it and it has reached its final form. hovels, shops, and waste patches alternated with high walls and imposing gateways protecting mansions. the mansions had orchards, gardens, stables, brewhouses, bakeries, guardrooms, and chapels. london streets were paved with cobbles and sand. each citizen was to keep the street in front of his tenement in good repair. later, each alderman appointed four reputable men to repair and clean the streets for wages. the repair of bishopsgate was the responsibility of the bishop because he received one stick from every cart of firewood passing through it. rules as to tiled roofs were enforced. a ordinance required all taverns to close at curfew, an hour that fluctuated. prostitutes were expelled from the city because the street with their bawdy houses had become very noisy. women huckster-retailers, nurses, servants, and loose women were limited to wearing hoods furred with lambskin or rabbitskin and forbidden to wear hoods furred with vair or miniver [grey or white squirrel] in the guise of good ladies. an infirmary for the blind was founded by a mercer, who became its first prior. the london mayoral elections were hotly fought over until in , when the aldermen began to act with the aid of an elected council in each of the twenty-four wards, which decentralized the government of the city. each ward chose certain of its inhabitants to be councilors to the aldermen. this council was to be consulted by him and its advice to be followed. in , the aldermen for the first time included a fishmonger. the fishmongers were the only guild at this time, besides the weavers, which had acquired independent jurisdiction by the transfer of control of their weekly hallmote from a public official to themselves. craftsmen began to take other public offices too. by the reign of edward ii, all the citizens were obliged to be enrolled among the trade guilds. a great quarrel between the weaver's guild and the magistracy began the control of the city by the craft guilds or city companies. admission to freedom of the city [citizenship] was controlled by the citizens, who decided that no man of english birth, and especially no english merchant, who followed any specific mistery [french word for a calling or trade] or craft, was to be admitted to the freedom of the city except on the security of six reputable men of that mistery or craft. no longer could one simply purchase citizenship. apprentices had to finish their terms before such admission, and often could not afford the citizenship fee imposed on them. only freemen could sell wares in the city, a custom of at least two hundred years. as economic activity in london became more complex and on a larger scale in the s, some craftsmen were brought under the control of other crafts or merchants. the bakers fell under the control of the wholesale grain dealers; the weavers became pieceworkers for rich cloth merchants; the blademakers and shearers were employed by cutlers; coppersmiths were controlled by girdlers; fullers were controlled by entrepreneurial dyers; and the painters, joiners, and lorimers were controlled by the saddlers. guilds moved their meeting places from churches, which were now too small, to guild halls. the controlling officers of the large guilds met at the guildhall, which became the seat of mayoral authority. london streets in existence by this time include cordwainer, silver, cannon (candlewick), and roper. lanes included ironmonger, soper, spurrier, lad (ladles), distaff, needles, mede, limeburner, and hosier. fighting among groups was common in london. there was a street fight on a large scale in between the saddlers and a coalition of joiners, painters, and lorimers (makers of metal work of saddles). much blood was shed in the street battle between the skinners and the fishmongers in . there was a city ordinance that no one except royal attendants, baronial valets, and city officials were to go about armed. disputes among neighbors that were brought to court included the use and upkeep of party walls, blocked and overflowing gutters, cesspits too close to a neighbor's property, noisy tenants, loss of light, and dangerous or overhanging structures. in , a goldsmith was chief assay-master of the king's mint and keeper of the exchange at london. the king gave the goldsmiths' company the right of assay [determination of the quantity of gold or silver in an object] and required that no vessels of gold or silver should leave the maker's hands until they had been tested by the wardens and stamped appropriately. in , goldsmith william farrington bought the soke of the ward containing the goldsmiths' shops. it remained in his family for years. a patent of empowered the guild to elect a properly qualified governing body to superintend its affairs, and reform subjects of just complaint. it also prescribed, as a safeguard against a prevailing fraud and abuse, that all members of the trade should have their standing in cheapside or in the king's exchange, and that no gold or silver should be manufactured for export, except that which had been bought at the exchange or of the trade openly. some prices in london were: large wooden bedstead s., a small bedstead s., a large chest for household items s., feather beds - s., a table s., a chair - d., cloth gown lined with fur - s., plain coats and overcoats - s., caps - d., a pair of pen- cases with inkhorn d., a skin of parchment d., sheets of paper d, a carcass of beef s., a pig s., a swan s., and a pheasant s. there was a problem with malefactors committing offenses in london and avoiding its jurisdiction by escaping to southwark across the thames. so southwark was given a royal charter which put it under the jurisdiction of london for peace and order matters and allowed london to appoint its tax collector. london forbade games being played because they had replaced practice in archery, which was necessary for defense. a royal inquiry into the state of the currency indicated much falsification and coin-clipping by the jews and others. about jews and many englishmen were found guilty and hanged. the rest of the jews, about , , were expelled in . this was popular with the public because of the abuses of usury. there had been outbreaks of violence directed at the jews since about . the king used italian bankers instead because he thought them more equitable in their dealings. the lepers were driven out of london in . exports and imports were no longer a tiny margin in an economy just above the subsistence level. exports were primarily raw wool and cloth, but also grain, butter, eggs, herring, hides, leather goods such as bottles and boots, embroideries, metalware, horseshoes, daggers, tin, coal, and lead. imported were wine, silk, timber, furs, rubies, emeralds, fruits, raisins, currents, pepper, ginger, cloves, rice, cordovan leather, pitch, hemp, spars, fine iron, short rods of steel, bow-staves of yew, tar, oil, salt, cotton (for candlewicks), and alum (makes dyes hold). ships which transported them had one or two masts upon which sails could be furled, the recently invented rudder, and a carrying capacity of up to tuns [about one ton]. many duties of sheriffs and coroners were transferred to county landholders by commissions. in coastal counties, there were such commissions for supervising coastal defense and maintaining the beacons. each maritime county maintained a coast guard, which was under the command of a knight. ports had well-maintained harbors, quays, and streets. by there was an office of admiral of the fleet of the ships of the southern ports. women could inherit land in certain circumstances. some tenants holding land in chief of the king were women. regulation of trade became national instead of local. trade was relatively free; almost the only internal transportation tolls were petty portages and viages levied to recoup the expense of a bridge or road which had been built by private enterprise. responsibility for the coinage was transferred from the individual moneyers working in different boroughs to a central official who was to become master of the mint. the round half penny and farthing [ / penny] were created so that the penny needn't be cut into halves and quarters anymore. edward i called meetings of representatives from all social and geographic sectors of the nation at one parliament to determine taxes due to the crown that would replace feudal aids. he declared that "what touches all, should be approved by all". he wanted taxes from the burgesses in the towns and the clergy's ecclesiastical property as well as from landholders. he argued to the clergy that if barons had to both fight and pay, they who could do no fighting must at least pay. when the clergy refused to pay, he put them outside the royal protection and threatened outlawry and confiscation of their lands. then they agreed to pay and to renounce all papal orders contrary to the king's authority. edward i wanted to bring all his subjects undder hisimmediate aujthority by the process of bringing all together to the same assembly under his common presidency. so his model parliament of was composed of the three communities. the first were the lords, which included seven earls and forty-one barons. because of the increase of lesser barons due to a long national peace and prosperity, the lords attending were reduced in numbers and peerage became dependent not on land tenure, but on royal writ of summons. the great barons were chosen by the king and received a special summons in their own names to the council or parliament. others were called by a general summons. the second community was the clergy, represented by the two archbishops, bishops from each of eighteen dioceses, and sixty-seven abbots. the third community was the commons. it was composed of two knights elected by the suitors who were then present at the county court, two burgesses elected by principal burgesses of each borough, and two representatives from each city. the country knights had a natural affinity with the towns in part because their younger sons sought their occupation, wife, and estate there. also, great lords recruited younger brothers of yeoman families for servants and fighting men, who ultimately settled down as tradesmen in the towns. the country people and the town people also had a community of interest by both being encompassed by the county courts. the peasants were not represented in the county courts nor in parliament. one had to have land to be entitled to vote in parliament because the landowner had a stake in the country, a material security for his good behavior. parliaments without knights and burgesses still met with the king. but it was understood that no extraordinary tax could be levied without the knights and burgesses present. ordinary taxes could be arranged with individuals, estates, or communities. the lower clergy ceased to attend parliament and instead considered taxes to pay to the king during their national church convocations, which were held at the same time as parliament. for collection purposes, their diocesan synod was analogous to the county court. the higher clergy remained in parliament because they were feudal vassals of the king. edward's council was the highest tribunal. it comprised the chancellor, treasurer and other great officers of state, the justices of the three courts, the master or chief clerks of the chancery, and certain selected prelates and barons. the council assisted the king in considering petitions. most petitions to the king were private grievances of individuals, including people of no social rank, such as prisoners. other petitions were from communities and groups, such as religious houses, the two universities, boroughs, and counties. these groups sometimes formed alliances in a common cause. women sometimes petitioned. from , the petitions were placed in four stacks for examination by the king and council, by the chancery, by the exchequer, or by the justices. many hours were spent hearing and answering petitions. from , the petitions were presented to the king in full parliament. the king still exercised a power of legislation without a full parliament. he might in his council issue proclamations. the chief justices still had, as members of the king's council, a real voice in the making of laws. the king and his justices might, after a statute has been made, put an authoritative interpretation upon it. royal proclamations had the same force as statutes while the king lived; sometimes there were demands that certain proclamations be made perpetual by being embodied in statutes, e.g. fixing wages. there was no convention that agreement or even the presence of representatives was required for legislation. the idea that the present can bind the absent and that the majority of those present may outvote the minority was beginning to take hold. edward i's councilors and justices took an oath to give, expedite, and execute faithful counsel; to maintain, recover, increase, and prevent the diminution of, royal rights; to do justice, honestly and unsparingly; to join in no engagements which may present the councilor from fulfilling his promise; and to take no gifts in the administration of justice, save meat and drink for the day. these were in addition to other matters sworn to by the councilors. parliament soon was required to meet at least once a year at the great hall at westminster located beside the royal palace. london paid its representatives s. per day for their attendance at parliament. from the time of edward ii, the counties paid their knight- representatives s. daily, and the boroughs paid their burgess- representatives s. daily. when it convened, the chancellor sat on the left and the archbishop of canterbury on the right of the king. just below and in front of the king his council sits on wool sacks brought in for their comfort from wool stored nearby. it answers questions. behind them on the wool sacks sit the justices, who may be called upon to give legal advice, e.g. in framing statutes. then come the spiritual and lay barons, then the knights, and lastly the elected burgesses and citizens. lawmaking became a function of parliament, of which the king's council is a part, instead of a function of the king with his council and justices. the common people now had a voice in lawmaking, though legislation could be passed without their consent. the first legislation proposed by the commons was alteration of the forest laws governing the royal pleasure parks. such a statute was passed in a bargain for taxes of a percentage of all movables, which were mostly foodstuffs and animals. the king offered to give up the royal right to tax merchandise for a new tax: customs on exports. the barons and knights of the county agreed to pay an th, the burgesses, a th, and the clergy a th on their other movables. in time, several boroughs sought to be included in the county representation so they could pay the lower rate. this new system of taxation began the decline of the imposition of feudal aids, knights' fees, scutages, carucage, and tallage, which had been negotiated by the exchequer with the reeves of each town, the sheriff and county courts of each county, and the bishops of each diocese. the staple [depot or mart, from the french "estaple"] system began when the export of wool had increased and parliament initiated customs duties of s. d. on every sack of wool, woolfells [sheepskin with wool still on it], or skins exported in . these goods had to be assessed and collected at certain designated ports. certain large wool merchants, the merchants of the staple, were allowed to have a monopoly on the purchase and export of wool. imports of wine were taxed as tunnage as before, that is there was a royal right to take from each wine ship one cask for every ten at the price of s. per cask. in , edward i confirmed the magna carta and other items. judgments contrary to magna carta were nullified. the documents were to be read in cathedral churches as grants of edward and all violators were to be excommunicated. he also agreed not to impose taxes without the consent of parliament after baronial pressure had forced him to retreat from trying to increase, for a war in france, the customs tax on every exported sack of wool to s. from the s. d. per sack it had been since . the customs tax was finally fixed at s. for every sack of wool, s. for each tun [casket] of wine, and d. for every pound's worth of other goods. the "tenths and fifteenths" tax levied on income from movables or chattels became regular every year. edward also confirmed the forest charter, which called for its earlier boundaries. and he agreed not to impound any grain or wool or and like against the will of the owners, as had been done before to collect taxes. also, the special prises or requisitions of goods for national emergency were not to be a precedent. lastly, he agreed not to impose penalties on two earls and their supporters for refusing to serve in the war in france when the king did not go. the magna carta is the first statute. from , statutes were recorded in a statute roll as they were enacted. by the end of the s, the king's wardrobe, where confidential matters such as military affairs were discussed in his bedroom, became a department of state with the king's privy seal. the keeper of the privy seal was established as a new office by edward i in . the wardrobe paid and provisioned the knights, squires, and sergeants of the king and was composed mostly of civil servants. it traveled with the king. the crown's treasure, plate, tents, hangings, beds, cooking utensils, wine, and legal and financial rolls were carried on pack horses or in two-wheeled carts drawn by oxen, donkeys, or dogs. the people in the entourage rode horses or walked. the other two specialized administrative bodies were the exchequer, which received most of the royal revenue and kept accounts at westminster, and the chancery, which wrote royal writs, charters, and letters, and kept records. the chief functions of administration in the s were performed by the council, chancery, wardrobe, chamber [room off wardrobe for dressing and for storage], and exchequer. many of the chancellors had come from the wardrobe and chamber. in time, the chancellor ceased to be a part of the king's personal retinue and to follow the court. the chancery became primarily a department of central administration rather than a secretariat and record-keeping part of the royal household. the king used a privy seal to issue directives to the chancery. edward iii made some merchants earls and appointed them to be his ministers. he did not summon anyone to his council who did not have the confidence of the magnates [barons, earls, bishops, and abbots]. there was a recoinage due to debasement of the old coinage. this increased the number of coins in circulation. the price of wheat went from about s. in to about s. per quarter in . also the price of an ox went from s. to s. then there were broad movements of prices, within which there were wide fluctuations, largely due to the state of the harvest. from to , there was runaway inflation. in some places, both grain and livestock prices almost doubled between and . wheat prices peaked at s. d. a quarter in the famine year of . in , prices dropped and remained low for twenty years. the poor were hurt by high prices and the lords of the manors were hurt by low prices. as before, inadequate care and ignorance of nutrition caused many infant deaths. accidents and disease were so prevalent that death was always near and life insecure. many women died in childbirth. edward i always sought the agreement of parliament before assembling an army or taking actions of war, and parliamentary consent came to be expected for such. he completed the conquest and annexation of wales in . the feudal army was summoned for the last time in the year war with france, which began in . in it the english longbow was used to pierce french knights' armor. there had been much competition between the strength of arrows to pierce and the heaviness of armor to resist. guns and cannon with gunpowder were introduced in . a system to raise an army by contract was developed. contracts were made with nobles, knights, or esquires who undertook to enlist an agreed number of armored men-at-arms and archers, who were paid wages. the king provided transport for each contractor and his retinue, baggage, and horses. the title of "knight" now resumed its military character as well as being a social rank. after edward i died in , there was a period of general lawlessness and contests for power between earls and barons and the irresponsible king edward ii, who was not a warrior king. he eventually was assassinated. also in , parliament required the king to obtain its consent for any exchange or alteration of the currency. by , the guilds of london had become so powerful that they extracted a charter from the king that to be a citizen of london one had to be a member of a guild. by , scholars, the nobility, and the clergy had reading eyeglasses, which had been invented in italy, probably by the glass blowers. italy was famous for its glasswork. the first eyeglasses were fabricated by pouring molten glass into curved molds. the actual shape was difficult to control because thermal expansion and contraction resulted in bubbles and other optical imperfections. as of , importing foreign cloth or fur, except for use by the king's family, was prohibited, as was the export of unwoven wool. later, this was relaxed and a customs tax of % was imposed on wool exported. foreign cloth workers were allowed by statute to come to live in the nation, be granted franchises, and be in the king's protection. but no cloth was to be exported until it was fulled. during the reign of edward iii, flanders weavers were encouraged to come to england to teach the english how to weave and finish fine cloth. a cloth industry grew with all the manufacturing processes under the supervision of one capitalist manufacturer, who set up his enterprise in the country to avoid the regulations of the towns. the best places were hilly areas where there were many streams and good pasture for flocks of sheep. he hired shearers to cut the nap as short as possible to give a smooth surface, then spinsters to card and spin the wool in their country cottages, then weavers, and then fullers and dyers to come to fulling mills established near streams for their waterpower. fulling became mechanized as heavy wooden hammers run by water- power replaced feet trampling the cloth covered with soap or fuller's clay. the shaft loom was a technological advance in weaving. this loom was horizontal and its frames, which controlled the lifting of the warp threads, could each be raised by a foot treadle. this left both hands free to throw and catch the shuttle attached to the weft thread from side to side through the warp. also many more weaving patterns became possible through the use of different thread configurations on the frames. in , the commons forced king edward iii and council to approve their petition when parliament was still in session so that they would draft the legislation in true accordance with the petition. this had not been done when drafting had been done after parliament ended, when the phrase "saving the prerogatives of the king" was often added. also the lords and commons consulted each other and joined in petitions. but they usually stated their conclusions to the king separately. it was considered a burden rather than a privilege to attend parliament and elections for such were not often contested. they were conducted according to local custom until . in , the commons voted a tax of / th on movables for three years with the proviso that it be spent only on the war against scotland. this began the practice of appropriation of funds. in , began the practice of appointing treasurers of the subsidies to account to parliament for both receipts and disbursements. alien merchants were under the king's special protection. in return for paying extra import and export duties, edward iii gave alien merchants full rights of trade, travel, and residence in england free of all local tolls and restrictions, and guaranteed a fair hearing of their commercial and criminal cases in special pie powder (after french "pie poudrous" or dusty feet) courts at fairs. the law edward i remodeled the law in response to grievances and to problems which came up in the courts. the changes improved the efficiency of justice and served to accommodate it to the changing circumstances of the social system. "no man by force of arms, malice or menacing shall disturb anyone in making free election [of sheriffs, coroners, conservators of the peace by freeholders of the county]." "no city, borough, town, nor man shall be amerced without reasonable cause and according to the severity of his trespass. that is, every freeman saving his freehold, a merchant saving his merchandise, a villein saving his wainage [implements of agriculture], and that by his peers." no distress shall be taken of ploughing-cattle or sheep. no loan shall be made for interest. if an heir who is a minor is married off without the consent of the guardian, the value of the marriage will be lost and the wrongdoer imprisoned. if anyone marries off an heir over years of age without the consent of the guardian, the guardian shall have double the value of the marriage. moreover, anyone who has withdrawn a marriage shall pay the full value thereof to the guardian for the trespass and make amends to the king. and if a lord refuses to marry off a female heir of full age and keep her unmarried because he covets the land, then he shall not have her lands more than two years after she reaches full age, at which time she can recover her inheritance without giving anything for the wardship or her marriage. however, if she maliciously refuses to be married by her lord, he may hold her land and inheritance until she is the age of a male heir, that is, years old and further until he has taken the value of the marriage. aid to make one's son a knight or marry off his daughter of a whole knight's fee shall be taken s., and s. [yearly income from] land held in socage s. [ %], and of more, more; and of less, less; after the rate. and none shall levy such aid to make his son a knight until his son is years old, nor to marry his daughter until she is seven year old. the common law of inheritance for land has assumed its final form with six rules. ) a living descendant excludes his or her own descendants. ) a dead descendant is represented by his or her own descendants. ) males exclude females of equal degree. ) among males of equal degree, only the eldest inherits. ) the rule that a dead descendant is represented by his or her descendants overrides the preference for the male sex. if there were no descendants, the land escheated to its lord. by statute, a conveyance of land which is the inheritance of a minor child by his guardian or lord to another is void. dower shall not abate because the widow has received dower of another man unless part of the first dower received was of the same tenant and in the same town. but a woman who leaves her husband for another man is barred from dower. a tenant for a term of years who has let land from a landlord shall not let it lie waste, nor shall a landlord attempt to oust a tenant for a term of years by fictitious recoveries. when two or more hold wood, turfland, or fishing or other such thing in common, wherein none knows his several, and one does waste against the minds of the others, he may be sued. lands which are given to a man and his wife upon condition that if they die without heirs, the land shall revert to the donor or his heir, may not be alienated to defeat this condition. if a man takes land in marriage with a wife, and she dies before him, the land will revert to the donor or his heir, unless the couple has a child, in which case the husband will have the land by the courtesy of the nation for his life before it reverts to the donor or his heir. young salmon shall not be taken from waters in the spring. a free tenant may alienate his land freely, but if the alienation was for an estate in fee simple [to a man and his heirs, with a full right of alienation by the man otherwise than on his death], the person acquiring the land would hold of the land's lord and not of the person alienating the land. (this halted the growth of subinfeudation and caused services as well as incidents of aids, relief, escheat, wardship, and marriage to go directly to the chief lord. it also advantaged the crown as overlord, which then acquired more direct tenants.) one may create an estate which will descend in unbroken succession down the line of inheritance prescribed in the original gift as long as that line should last, instead of descending to all heirs. this was called a "fee simple conditional" holding of land. the successive occupants might draw the rents and cut the wood, but on the death of each, his heir would take possession of an unencumbered interest, unfettered by any liability for the debt of his ancestor or by any disposition made by him during his lifetime e.g. a wife's estate in dower or a husband's estate in courtesy. if there was no issue, it reverted to the original donor. this curtailed the advantage of tenants of the greater barons who profited by increased wardships and reliefs from subinfeudation from subdivision and better cultivation of their land while still paying the greater barons fixed sums. this statute that protected reversionary estates incidentally established a system of entails. this new manner of holding land: "fee tail", is in addition to the concepts of land held in fee simple and land held for life. the donor could give directions that an estate of inheritance go to a man or woman and certain classes of particular heirs rather than reverting to himself. a fee tail was often given to a man and the issue of his body. no donee or nor his heirs could alienate the land held in fee tail.interests in remainder or reversion of estates in land replaced the lord's tenurial right to succeed to land by escheat if his tenant dies without heirs. anyone disseising another whereby he also robs him or uses force and arms in the disseisin shall be imprisoned and fined. the plaintiff shall recover seisin and damages. "all must be ready at the command and summons of sheriffs, and at the cry of the country, to sue and arrest felons as necessary as well within franchise as without." otherwise, he shall be fined. a lord defaulting shall lose his franchise to the king. a bailiff defaulting shall be imprisoned a year as well as fined, or be imprisoned two years if he cannot pay the fine. a sheriff, coroner, or any other bailiff who conceals a felony will be imprisoned for a year and pay a fine, or be imprisoned for three years if he cannot pay the fine. villeins must report felons, pursue felons, serve in the watch, and clear growth of concealing underwood from roads. they must join the military to fight on the borders when called. desertion from the army is punishable. accessories to a crime shall not be declared outlaw before the principal is proven guilty. (this made uniform the practice of the various counties.) only those imprisoned for the smaller offenses of a single incidence of petty larceny, receipt of felons, or accessory to a felony, or some other trespass not punishable by life or limb shall be let out by sufficient surety. prisoners who were outlawed or escaped from prison or are notorious thieves or were imprisoned for felonious house burning, passing false money, counterfeiting the king's seal, treason touching the king himself, or other major offenses or have been excommunicated by the church may not be released. killing in self-defense and by mischance shall be pardoned from the king's indictment. killing by a child or a person of unsound mind shall be pardoned from the king's indictment. (but a private accuser can still sue.) any man who ravishes [abducts] any woman without her consent or by force shall have the criminal penalty of loss of life or limb. (the criminal penalty used to be just two years in prison.) trespasses in parks or ponds shall be punished by imprisonment for three years and a fine as well as paying damages to the wronged person. after his imprisonment, he shall find a surety or leave the nation. "forasmuch as there have been often times found in the country devisors of tales, where discord, or occasion of discord, has many times arisen between the king and his people, or great men of this realm; for the damage that has and may thereof ensue, it is commanded, that from henceforth none be so hardy to tell or publish any false news or tales, whereby discord or occasion of discord or slander may grow between the king and his people, or the great men of the realm." anyone doing so shall be imprisoned until he brings into the court the first author of the tale. a system of registration and enforcement of commercial agreements was established by statute. merchants could obtain a writing of a debt sealed by the debtor and authenticated by royal seal or a seal of a mayor of certain towns, and kept by the creditor. failure to pay a such a debt was punishable by imprisonment and, after three months, the selling of borough tenements and chattels and of county lands. during the three months, the merchant held this property in a new tenure of "statute merchant". (prior to this, it was difficult for a foreign merchant to collect a debt because he could not appear in court which did not recognize him as one of its proper "suitors" or constituents, so he had to trust a local attorney. also, the remedy was inadequate because the history of the law of debt was based on debt as a substitute for the blood feud, so that failure to pay meant slavery or death. also a debtor's land was protected by feudal custom, which was contrary to the idea of imposing a new tenant on a lord.) "in no city, borough, town, market, or fair shall a person of the realm be distrained for a debt for which he is not the debtor or pledge." anyone making those passing with goods through their jurisdiction answer to them in excess of their jurisdiction shall be grievously amerced to the king. no market town shall take an outrageous toll contrary to the common custom of the nation. since good sterling money has been counterfeited with base and false metal outside the nation and then brought in, foreigners found in the nation's ports with this false money shall forfeit their lives. anyone bringing money into the nation must have it examined at his port of entry. payments of money shall be made only by coin of the appropriate weight delivered by the warden of the exchange and marked with the king's mark. (a currency exchange was established at dover for the exchange of foreign currency for english sterling.) the silver in craftwork must be sterling and marked with the leopard's head. the gold in craftwork must meet the standard of the touch of paris. the assize of bread and ale had been and was enforced locally by local inspectors. now, the crown appointed royal officers for the gauge of wines and measurement of cloths. edicts disallowed middlemen from raising prices against consumers by such practices as forestalling [intercepting goods before they reached the market and then reselling them] or engrossing [buying a large supply of a commodity to drive up the price] and price regulation was attempted. for instance, prices were set for poultry and lamb, in a period of plenty. maximum prices were set for cattle, pigs, sheep, poultry, and eggs in , but these prices were hard to enforce. in london examples of prices set are: best hen d. q., best wild goose d., best hare d., best kid d., best lamb d., best fresh herrings for d., best pickled herrings for d., best haddock d., best fresh salmon s. freemen may drive their swine through the king's demesne forest to feed in their own woods or elsewhere. no man shall lose his life or limb for killing deer in the forest, but instead shall be grievously fined or imprisoned for a year. the forest charter allowed a man to cut down and take wood from his own woods in the king's forest to repair his house, fences, and hedges. he may also enclose his woods in the king's forest with fences and hedges to grow new trees and keep cattle and beasts therefrom. after seven years growth of these new trees, he may cut them down for sale with the king's permission. each borough has its own civil and criminal ordinances and police jurisdiction. borough courts tended to deal with more laws than other local courts because of the borough's denser populations, which were composed of merchants, manufacturers, and traders, as well as those engaged in agriculture. only borough courts have jurisdiction over fairs. in some boroughs the villein who resides for a year and a day becomes free, a right first given by henry ii in his charter for nottingham. there are special ordinances relating to apprentices. there are sometimes ordinances against enticing away servants bound by agreement to serve another. the wife who is a trader is regarded in many places as a feme sole [single woman rather than a woman covert, who was under the protection of a husband]. there may be special ordinances as to the liability of masters for the acts of their apprentices and agents, or as to brokers, debt, or earnest money binding a bargain. the criminal and police jurisdiction in the borough was organized upon the same model as in the country at large, and was controlled by the king's courts upon similar principles, though there are some survivals of old rules, such as mention of the bot and the wer. the crimes committed are similar to those of the country, such as violence, breaches of the assize of bread and beer, stirring up suits before the ecclesiastical courts, digging up or obstructing the highway, not being enrolled in a tithing, encroachments upon or obstructions of rights of common. the most striking difference with the country at large are the ordinances on the repair or demolition of buildings, encroachments on another's building, fires, and nuisances. specimens of other characteristic urban disputes are: selling bad food, using bad materials, unskillful or careless workmanship, fraudulent weights and measures, fraud in buying and selling, forestalling or regrating [buying in one market to resell in another market], acting in a way likely to endanger the liberties of the borough, usury, trading without being a citizen, assisting other unlicensed persons to trade, unlawfully forming a guild, complaints against various guilds in which trade might be organized. since the ordinances were always liable to be called in question before the king's courts, they tended to become uniform and in harmony with the principles of the common law. also, trading between boroughs kept them knowledgeable about each other's customs and conditions for trade, which then tended to standardize. boroughs often had seals to prove communal consent and tended to act as a corporate body. borough ordinances often include arson such as this one: "and if a street be set on fire by any one, his body shall be attached and cast into the midst of the fire." robbery by the miller was specially treated by an ordinance that "and if the miller be attainted [found guilty] of robbery of the grain or of the flour to the amount of d., he shall be hanged from the beam in his mill." in london, an ordinance prescribed for bakers for the first offense of making false bread a forfeiture of that bread. for the second offense was prescribed imprisonment, and for the third offense placement in the pillory. a london ordinance for millers who caused bread to be false prescribed for them to be carried in a tumbrel cart through certain streets, exposed to the derision of the people. by statute, no one may make a gift or alienation of land to the church. an attempt to do so will cause the land to escheat to the lord, or in his default, to the king. religious houses may not alienate land given to them by the king or other patrons because such gifts were for the sake of someone's soul. an attempt to do so will cause the land to revert to the donor or his heir. if the church did not say the prayers or do the other actions for which land was given to it, the land will revert to the donor or his heir. land may not be alienated to religious bodies in such a way that it would cease to render its due service to the king. (the church never died, never married, and never had children.) the church shall send no money out of the nation. (this statute of mortmain was neutralized by collusive lawsuits in which the intended grantor would sue the intended grantee claiming superior title and then would default, surrendering the land to the intended grantee by court judgment.) "concerning wrecks of the sea, where a man, a dog, or a cat escape alive out of the ship, that such ship nor barge nor anything within them shall be deemed wreck, but the goods shall be saved and kept by view of the sheriff, coroner, or the king's bailiff". if anyone proves the goods were his within a year and a day, they shall be restored to him without delay. otherwise, they shall be kept by the king. "and where wreck belongs to one other than the king, he shall have it in like manner". if he does otherwise, he shall be imprisoned and pay damages and fine. some statutes applied only to kent county, which had a unique position between london and the continent. money flowed between england and the continent through kent. so kent never developed a manorial system of land holding, but evolved from a system of clans and independent villages directly into a commercial system. in kent, all men are free and may give or sell their lands without permission of their lords, as before the conquest. one could sell or give away his land without the consent of one's lord. the services of the land, however, could only be sold to the chief lord. inheritance of land was to all sons by equal portions, and if there were no sons, then to all daughters in equal portions. the eldest brother has his choice of portion, then the next oldest, etc. the goods of a deceased person were divided into three parts after his funeral expenses and debts were paid. one third went to the surviving spouse. one third went to the deceased's sons and daughters. one third could be disposed by will of the decedent. if there were no children, one half went to the spouse and one half went according to will. if an heir was under years old, his next of kin to whom inheritance could not descend was to be his guardian. a wife who remarried or bore a child lost her dower land. a husband lost his dower if he remarried. if a tenant withheld rent or services, his lord could seek award of court to find distress on his tenement and if he could find none, he could take the tenement for a year and a day in his hands without manuring it. it the tenant paid up in this time, he got the tenement back. if he didn't within a year and a day, however, the lord could manure the land. a felon forfeited his life and his goods, but not his lands or tenements. a wife of a felon had the dower of one half or her husband's lands and tenements. the common law recognized the tort of false imprisonment if a man arrested as a felon, a person who was not a felon. judicial procedure the highest court was the king and his council in parliament. it heard the most important causes, important because they concern the king, or because they concern very great men (e.g. treason), or because they involve grave questions of public law, or because they are unprecedented. it has large, indefinite powers and provides new remedies for new wrongs. the office of great justiciar disappears and the chancellor becomes the head of the council. the chancellor heads the chancery, which is the secretarial department of the royal court. a litigant could not proceed without first obtaining a writ from chancery. the chancellor could form new writs. after the council were the royal courts of the king's bench, common pleas, and the exchequer, which had become separate, each with its own justices and records. the court of common pleas had its own chief justice and usually met at westminster. this disadvantaged the small farmer, who would have to travel to westminster to present a case. the king's council maintained a close connection with the court of the king's bench, which heard criminal cases and appeals from the court of common pleas. it traveled with the king. there were many trespass cases so heard by it in the reign of edward i. the king's council did a great deal of justice, for the more part criminal justice. it was supported by the populace because it dealt promptly and summarily with rebellion or some scandalous acquittal of a notorious criminal by bribed or partial jurors, and thereby prevented anarchy. its procedure was to send for the accused and compel him to answer upon oath written interrogatories. affidavits were then sworn upon both sides. with written depositions before them, the lords of the council, without any jury, acquit or convict. fines and imprisonments were meted out to rioters, conspirators, bribers, and perjured jurors. no loss of life or limb occurred because there had been no jury. in criminal cases, witnesses acquainted with particular facts were added to the general assize of twelve lawful men from each hundred and four lawful men from each town to testify to facts unknown by the assize men. the assize was bifurcated into the grand jury of twelve to twenty-four knights and the petty jury or trial jury of twelve free and lawful men, which replaced ordeal, compurgation, and trial by combat as the method of finding the truth. the men of the petty jury as well as those of the grand jury were expected to know or to acquaint themselves with the facts of the cases. the men of the petty jury tended to be the same men who were on the grand jury. felony was determined by common law to be one of seven offenses: treason, homicide, arson, rape, robbery, burglary, and grand larceny, the last of which involved over d., where d. was enough to keep a man from starvation for eight days. high treaason included covered the making of counterfeit money and the clipping if coin. burglary was an offense committed in times of peace and consisted of breaking into churches, houses, and into the walls and gates of villages and boroughs. these seven offenses could be prosecuted by indictment or private accusation by an individual. they were appealable, that is, the accuser must in general offer trial by battle. the penalties involved loss of life or limb or, if he fled, outlawry. actually, the death penalty was replacing loss of life or limb. death by hanging was the usual punishment. a felon's goods were confiscated by the crown and his land was forfeited to the crown for a year and a day and waste, after which it escheated to the felon's lord. the crimes of wounding, mayhem, and false imprisonment were not now felonies. the peace of the king now did not die with the king, but renewed automatically without an interval before the inauguration of a new king. notorious felons who would not consent or put themselves on inquests for felonies with which they were charged at royal courts were put in strong and hard imprisonment to persuade them to accept trial by assize. this inducement progressed into being loaded with heavy chains and placed on the ground in the worst part of the prison and being fed a only little water one day and a little bread the next. sometimes pieces of iron or stones were placed one another onto their prone bodies to persuade them to plead. this then developed into being loaded with as much iron as could be borne, and finally into being pressed to death ["peine forte et dure"]. many of these men chose to die by this pressing so that their families could inherit their property, which would have been forfeited if they had been convicted of serious crimes. the most common cases in the court of common pleas were detinue, "debt" [for money due from a sale, for money loaned, for rent upon a lease for years, from a surety, promised in a sealed document, or due to arbitrators to whom a dispute had been submitted] and "account" [e.g. against bailiffs of manors, a guardian in socage, and partners]. it also heard estovers [right to use during a lease] of wood, profit by gathering nuts, acorns, and other fruits in wood, corody [allowance of food], yearly delivery of grain, toll, tunnage, passage, keeping of parks, woods, forests, chases, warrens, gates, and other bailiwicks, and offices in fee. the itinerant justices gradually ceased to perform administrative duties on their journeys because landed society had objected to their intrusiveness. edward i substituted regular visitations of justices of assize for the irregular journeys of the itinerant justices. each one of four circuits had two justices of assize. from about , these justices of assize heard cases of gaol delivery. their jurisdiction expanded to include serious criminal cases and breach of the king's peace. one woman was indicted to every men. % of the women who were indicted were convicted compared to % of the men. breaches of the forest charter laws were determined by justices of the king's forest, parks, and chases, along with men of assize. coroners' inquest procedures were delineated by statute and included describing in detail in the coroner's rolls every wound of a dead body, how many may be culpable, and people claiming to have found treasure who might be suspects. the precedent for punishment for treason was established by the conviction of a knight, david ab gruffydd, who had turned traitor to the welsh enemy, after fighting with edward and being rewarded with land, during the conquest of wales. he had plotted to kill the king. he was found guilty of treason by parliament and condemned to be dragged at the heels of horses for being a traitor to his knightly vows, hanged by the neck for his murders, cut down before consciousness left him to have his entrails cut out for committing his crimes during the holy week of easter, and his head cut off and his body divided into four parts for plotting against the king's life. the head was placed on the tower of london and his body sections were placed in public view at various other locations in england. this came to be known as "hanging, drawing, and quartering". prior to this the penalty had usually been imprisonment followed by ransom. the penalty for a woman of treason, e.g. killing her husband, who was her lord, was burning at the stake. trial by combat is now limited to certain claims of enfeoffment of large land holding and is barred for land held in socage, burgage, or by marriage. (trial by combat eventually fell into disuse, but was not abolished until .) assize is the usual manner of trial, but compurgation remains in the borough court long after it becomes obsolete in the royal courts. it came to be that defendants no longer request assizes but are automatically put to them. numerous statutes protect the integrity of the courts and king's offices by double and treble damages and imprisonment for offenses such as bribery, false informers, conspiracy to falsely move or maintain pleas, champerty [covenant between a litigant and another for the other to have a part or profit in the award in return for maintaining the suit], conflict of interest by court officers taking part in a quarrel pending in court or working any fraud whereby common right may be delayed or disturbed. there had been many abuses, the most common of which was extortion by sheriffs, who gaoled people without cause to make them pay to be released. the prohibition of maintenance of a quarrel of a party in court by a nonparty was extended in to all persons, including the king's councilors and ministers, and great men, e.g. by sending letters. in , this prohibition specifically included prelates, earls, barons taking in hand quarrels other than their own, or maintaining them for gift, promise, amity, favor, doubt, or fear, in disturbance of law and hindrance of right. the reason given was that there had been persons disinherited, delayed or disturbed in their rights, and not guilty persons convicted or otherwise oppressed. all great men were required to put out of their service all maintainers who had been retained, and void their fees and robes, without giving them aid, favor, or comfort. this law was not obeyed. the king reserved to himself and his council in its judicial capacity the correction of all breaches of the law which the lower courts had failed to remedy, whether from weakness, partiality, corruption, or jury timidity, and especially when the powerful barons defied the courts. the chancery also sought to address causes which were impeded in their regular course, which often involved assaults, batteries, and forcible dispossessions. disputes within the royal household were administered by the king's steward. he received and determined complaints about acts or breaches of the peace within twelve miles around the king's person or "verge". he was assisted by the marshall in the "court of the hall" and by the clerk of the market when imposing fines for trading regulation violations in the "court of the market". ecclesiastical courts were successful in their competition with the secular courts for jurisdiction over testamentary matters [concerning wills] and intestate succession [no will] to chattels. there were local courts of the vill, borough, manor, hundred, county, sheriff, escheator, and royal bailiff, with overlapping jurisdictions. the county court in its full session, that is, as it attended the itinerant justices on their visitation, contained the archbishops, bishops, priors, earls, barons, knights, and freeholders, and from each township four men and the reeve, and from each borough twelve burgesses. it was still the folkmote, the general assembly of the people. in , suitors who could not spend s. a year within their county were not required to attend their county court. the most common plea in the hundred court was trespass. it also heard issues concerning services arising out of land, detention of chattels, small debts, wounding or maiming of animals, and personal assaults and brawls not amounting to felony. it met every three weeks. the sheriff held his turn twice a year and viewed frankpledge once a year. in chancery, the court of the chancellor, if there is a case with no remedy specified in the law, that is similar to a situation for which there is a writ, then a new writ may be made for that case. this was called "trespass on the case". this covered indirect as well as direct contact with a person, land, or chattels. an example is that trespasss would not apply to a boat whose rope attaching it to land was cut because the trespass did not have contact with the boat. only the rope would be the result of the trespass. trespass on the case would include the boat. the two chancery justices were the lord chancellor and the master of the rolls. when edward i came to the throne, over half of the approximately hundred courts had gone under the jurisdiction of a private lord owing to royal charter, prescriptive right, and usurpation. the sheriff's powers in these hundreds varied. in some, the sheriff had no right of entry. so edward i created the writ of quo warranto [by what right], by which all landholders exercising manor or franchise jurisdictions must bring their ancestors' charters before a traveling justice for the common pleas for examination and interpretation as to whether they had a charter or were going beyond their charters and infringing upon the jurisdiction of the royal court. as a result, many manor courts were confined to manorial matters and could no longer view frankpledge or hear criminal cases, which were reserved for the royal courts. in the manor courts which retained criminal jurisdiction, there was a reassertion of the obligation to have present a royal coroner, whose duty it was to see that royal rights were not infringed and that the goods of felons were given to the crown and not kept by the lords. some who could not produce a charter lost it; but later, uninterrupted use of a jursdiction since sufficed to retain that jurisdiction. in the manor courts, actions of debt, detinue, and covenant were frequent. sometimes there are questions of a breach of warranty of title in agreements of sale of land. accusations of defamation were frequent; this offense could not be taken to the king's court, but it had been recognized as an offense in the anglo-saxon laws. in some cases, the damages caused are specifically stated. for instance, defamation of a lord's grain would cause other purchasers to forbear buying it. there are frequent cases of ordinary thefts, trespasses, and assaults. the courts did rough but substantial justice without distinction between concepts such as tort and contract. in fact, the action of covenant was the only form of agreement enforceable at common law. it required a writing under seal and awarded damages. manor court law was not technical, but elastic, and remedies could include injunctions, salary attachment, and performance of acts. the steward holding the manor court was often a lawyer. some pleas in the manors of the abbey of bec were: . -hugh le pee in mercy (fine, d.) for concealing a sheep for half a year. pledges, simon of newmere, john of senholt . -william ketelburn in mercy (fine, s. d.) for divers trespasses. pledge, henry ketelburn. . -hugh derwin for pasture, d. richard hulle for divers trespasses, d. henry stanhard for pasture, d. . -william derwin for a trespass, d.; pledge, william sperling. . -hugh hall gives the lord d. that he may have the judgment of the court as to a tenement and two acres of land, which he demands as of right, so he says. and it being asserted that the said land is not free[hold] let the court say its say. and the court says that the tenement and one of the two acres are of servile condition and that the other acre is of free condition. the case is reserved for the lord's presence. pledge, john brian. . -john palmer is put in seisin of his father's tenement and -gives the lord s. d. as entry money. . -william ketelburn gives the lord s. d. that he may be removed from the office of reeve. pledge, robert serjeant. . -william frith for subtraction of work, d. john reginald -for the same, d. john of senholt, d. william ketelburn, d. . -for the common fine to be paid on s. andrew's day, s. . it is presented by the chief pledges that godfrey serjeant has made default; also that john le pee has unlawfully thrown up a bank; therefore let it be set to rights. . robert smith is put in seisin of his father's tenement and gives the lord four pounds for entry money. pledge, robert serjeant. . william ketelburn for a trespass, s. d. . william fleming gives four pounds for leave to contract [marriage] with widow susan. pledge, richard serjeant. . john mabely gives the lord s. to have the judgment of twelve men as to certain land whereof noah deforces him; pledges, richard smith, ralph bernard. the said jurors say - - that noah the fat has right; therefore etc. . agnes stampelove gives the lord s. for leave to come and go in the vill but to dwell outside the lord's land. pledge, richard smith. . godfrey tailor the younger for a trespass, s. . whereas godfrey tailor the younger has demanded against noah a farthing land, now the action is compromised in manner following: godfrey for himself and his heirs remises to the said noah and his heirs all right and claim which he has or can have in the said farthing land by reason of the gift made by his grandfather john tailor. . agnes mabely is put in seisin of a farthing land which her mother held, and gives the lord s. d. for entry money. pledges, noah, william askil. . the full court declares that in case any woman shall have altogether quitted the lord's domain and shall marry a freeman, she may return and recover whatever right and claim she has in any land; but if she shall be joined to a serf, then she cannot do this during the serf's lifetime, but after his death she may. t . william alice's son is put in seisin of a bakehouse in the king's street, and shall keep up the house at his own cost and gives d. for entry money, and s. annual rent payable at three terms, viz. s. d. at martinmas, s. d. at lady day, s. d. at christmas. pledges, adam clerk, john deboneir. . john son of alma demands a cottage which henry fleming holds and gives the lord d. for the oath and recognition of men; pledge, richard jordan. the jurors say that henry fleming has the better right. . baldwin cobbler's son finds [as pledges] walter cobbler, roger of broadwater, robert linene, william frances, that notwithstanding his stay in london he will always make suit with his tithing and will at no time claim any liberty contrary to the lord's will and will come to the lord whenever the lord wills. . simon patrick gives the lord d. to have the judgment of the court as to a cottage of which the widow of geoffrey dogers deforces him; pledge, simon of strode. the said -jurors say that the said simon has the better right. and the said simon remises and quitclaims all his right to his sister maud and her husband john horin, [who] gives the lord s. for entry money; pledges, simon patrick, john talk. . hugh wiking for not making suit at the lord's mill, d. . it was presented that william derwin and john derwin (fine, d.) committed a trespass against agnes dene, and the cry was raised, therefore etc. . hugh churchyard contracted [marriage] without the lord's leave; [fine] d. . let juliana forester be distrained for her default, also william moor. . john kulbel in mercy (fine, d.) for not producing gregory miller, and he is commanded to produce him at the next court. . hugh andrew's son gives the lord s. for leave to marry; pledge, robert serjeant. . juliana forester gives the lord d. in order that for the future no occasion may be taken against her for neglect of suit of court. . john franklain is put in seisin of his father's tenement and gives the lord s. for entry; pledge, robert serjeant. . henry cross gives the lord s. for license to marry; pledge, robert serjeant. . isabella warin gives the lord s. for leave to give her daughter mary in marriage; pledge, john serjeant. . it is presented by the whole township that ralph le war has disseised the lord of a moiety of a hedge, whereas it had often been adjudged by award of the court that the said hedge belongs as to one moiety to the lord and as to the other to ralph, and the said ralph claims and takes to his use the whole to the lord's damage etc. also they say that the said ralph holds overcolkescroft, which land by right is the lord's. . it is presented by unanimous verdict of the whole court that if anyone marries a woman who has right in any land according to the custom of the manor and is seised thereof by the will of the lord, and the said woman surrenders her right and her seisin into the hands of the lord and her husband receives that right and seisin from the hands of the lord, in such case the heirs of the woman are for ever barred from the said land and the said right remains to the husband and his heirs. therefore let william wood, whose case falls under this rule, hold his land in manner aforesaid. and for the making of this inquest the said william gives the lord s. d. . the tenements of lucy mill are to be seized into the lord's hands because of the adultery which she has committed and the bailiff is to answer for them. - -the chief pledges present that cristina daughter of richard maleville has married at london without the lord's licence; therefore let the said richard be distrained. he has made fine with d. also that alice berde has done the same; therefore let her be distrained. also that robert fountain -has committed a trespass against william gery; therefore the said robert is in mercy; pledge, humfrey; fine, d. also that richard maleville has drawn blood from stephen gust; therefore he is in mercy; fine, s. . geoffrey coterel in mercy for a battery; fine, d.; pledge, adam serjeant. geoffrey coterel for trespass in the hay; fine, d.; pledge, alan reaper. hugh of senholt in mercy for trespass in the green wood; fine, d. . hugh wiking in mercy for delay in doing his works; fine, d. hugh churchyard for trespass in [cutting] thorns; fine, d. thomas gold in mercy for trespass in the wood; fine, d.; pledge, robert grinder. . william dun in mercy for subtraction of his works due in autumn; fine, s. avice isaac for the same, d.; hugh wiking -for the same, d.; agnes rede in mercy for her daughter's trespass in the corn [grain], d. . walter ash in mercy for not making suit to the lord's mill; fine, d. hugh pinel in mercy for diverting a watercourse to the nuisance of the neighbors; fine, d.; pledge, robert fresel. . john dun in mercy for carrying off corn [grain] in the autumn; pledge, adam white. alan reaper gives the lord d. on account of a sheep which was lost while in his custody. . adam white in mercy for bad mowing; fine, d. hugh harding in mercy for the same; fine, d. . the chief pledges present that henry blackstone (fine, d.), hugh churchyard (fine, d.), walter ash (fine, d.), henry of locksbarow (fine, d.), avice isaac (fine, d.), richard matthew (fine, d.), hugh wiking (fine,--), ralph dene (fine, d.), john palmer (fine, d.), john coterel (fine, d.), john moor (fine, d.), john cubbel (fine, d.), hugh andrew (fine, d.), philip chapman (fine, d.), john fellow (fine, d.), robert bailiff (fine, d.), alice squire (fine, d.), john grately (fine,--), richard hull (fine, d.), osbert reaper (fine, d.), and robert cross (fine, d.), have broken the assize of beer. also that henry of senholt, henry brown, hugh hayward, richard moor, juliana woodward, alice harding, peronel street, eleanor mead make default. also that walter ash (fine,--), john wiking (fine,--), john smart (fine,--), and henry coterel have married themselves without the lord's licence; therefore let them be distrained to do the will of the lord. . alan reaper for the trespass of his foal; fine, d. . philip chapman in mercy for refusing his gage to the lord's bailiff; fine, d. . william ash in mercy for trespass in the growing crop; fine, d. . john iremonger in mercy for contempt; fine, d. . the chief pledges present that william of ripley (fine, d.), walter smith (no goods), maud of pasmere (fine, d.), have received [strangers] contrary to the assize; therefore - - they are in mercy. . maud widow of reginald of challow has sufficiently proved that a certain sheep valued at d. is hers, and binds herself to restore it or its price in case it shall be demanded from her within year and day; pledges, john iremonger and john robertd; and she gives the lord d. for [his] custody [of it]. the court of hustings in london is empowered to award landlords their tenements for which rent or services are in arrears if the landlord could not distrain enough tenant possessions to cover the arrearages. wills are proven in the court of husting, the oldest court in london, which went back to the times of edward the confessor. one such proven will is: "tour (john de la) - to robert his eldest son his capital messuage and wharf in the parish of berchingechurch near the land called 'berewardesland`. to agnes his wife his house called 'wyvelattestone', together with rents, reversions, etc. in the parish of s. dunstan towards the tower, for life; remainder to stephen his son. to peter and edmund his sons lands and rents in the parish of all hallows de berhyngechurch; remainders over in default of heirs. to agnes, wife of john le keu, fishmonger, a house situate in the same parish of berhyng, at a peppercorn [nominal] rent." the court of the mayor of london heard diverse cases, including disputes over goods, faulty or substandard goods, adulteration, selling food unfit for human consumption, enhancing the price of goods, using unlawful weighing beams, debts, theft, distraints, forgery, tavern brawling, bullying, and gambling. insulting or assaulting a city dignitary was a very serious crime; an attack on the mayor was once capitally punished. sacrilege, rape, and burglary were punished by death. apart from the death penalty, the punishment meted out the most was public exposure in the pillory, with some mark of ignominy slung round the neck. if the crime was selling bad food, it was burnt under the offender's nose. if it was sour wine, the offender was drenched in it. standing in the pillory for even one hour was very humiliating, and by the end of the day, it was known throughout the city. the offender's reputation was ruined. some men died in the pillory of shame and distress. a variation of the pillory was being dragged through the streets on a hurdle. prostitutes were carted through the streets in coarse rough cloth hoods, with penitential crosses in their hands. scolds were exposed in a "thewe" for women. in more serious cases, imprisonment for up to a year was added to the pillory. mutilation was rare, but there are cases of men losing their right hands for rescuing prisoners. the death penalty was usually by hanging. the following four london cases pertain to customs, bad grain, surgery, and apprenticeship, respectively. this is a lawsuit: "john le paumer was summoned to answer richer de refham, sheriff, in a plea that, whereas the defendant and his society of bermen [carriers] in the city were sworn not to carry any wine, by land or water, for the use of citizens or others, without the sheriff's mark, nor lead nor cause it to be led, whereby the sheriff might be defrauded of his customs, nevertheless he caused four casks of wine belonging to ralph le mazun of westminster to be carried from the city of westminster without the sheriff's mark, thus defrauding the latter of his customs in contempt of the king etc. the defendant acknowledged the trespass. judgment that he remain in the custody of the sheriff till he satisfy the king and the court for offense." this is a lawsuit: "walter atte belhaus, william atte belhous, robert le barber dwelling at ewelleshalle, john de lewes, gilbert le gras, john his son, roger le mortimer, william ballard atte hole, peter de sheperton, john brun and the wife of thomas the pelterer, stephen de haddeham, william de goryngg, margery de frydaiestrate, mariot, who dwells in the house of william de harwe, and william de hendone were attached to answer for forestalling all kinds of grain and exposing it, together with putrid grain, on the pavement, for sale by the bushel, through their men and women servants; and for buying their own grain from their own servants in deception of the people. the defendants denied that they were guilty and put themselves on their country. a jury of richard de hockeleye and others brought in a verdict of guilty, and the defendants were committed to prison till the next parliament." this is a lawsuit: "peter the surgeon acknowledged himself bound to ralph de mortimer, by richard atte hill his attorney, in the sum of s., payable at certain terms, the said ralph undertaking to give peter a letter of acquittance [release from a debt]. this recognizance arose out of a covenant between them with regard to the effecting of a cure. both were amerced for coming to an agreement out of court. a precept was issued to summon all the surgeons of the city for friday, that an inquiry might be made as to whether the above peter was fitted to enjoy the profession of a surgeon." this is a lawsuit: "thomas de kydemenstre, shoemaker, was summoned to answer william de beverlee, because he did not clothe, feed and instruct his apprentice thomas, william's son, but drove him away. the defendant said that the apprentice lent his master's goods to others and promised to restore them or their value, but went away against his wish; and he demanded a jury. subsequently, a jury of william de upton and others said the apprentice lent two pairs of shoes belonging to his master and was told to restore them, but, frightened by the beating which he received, ran away; further that the master did not feed and clothe his apprentice as he ought, being unable to do so, to the apprentice's damage d., but that he was now in a position to look after his apprentice. thereupon thomas de kydemenstre said he was willing to have the apprentice back and provide for him, and the father agreed. judgment that the master take back the apprentice and feed and instruct him, or that he repay to the father, the money paid to the latter, and that he pay the father the d. and be in mercy." a professional class of temporal attorneys whose business it is to appear on behalf of litigants is prominent in the nation. the idea of representation has spread outwards from a king who has so many affairs that he can not conduct them in person. men often appear to defend themselves in the king's court by attorney. but attorneys do not conduct prospective litigation for a client. attorneys are now drawn from the knightly class of landed gentlemen, instead of ecclesiastical orders. since it was forbidden for ecclesiastics to act as advocates in the secular courts, those who left the clergy to become advocates adopted a close-fitting cap to hide their tonsures, which came to be called a "coif". the great litigation of the nation is conducted by a small group of men, as is indicated by the earliest year books of case decisions compiled by attorneys and students attending the court. these attorneys sit in court and will sometimes intervene as amicus curiae [friends of the court]. parliament refers difficult points of law to them as well as to the justices. these reports became so authoritative that they could be cited in the courts as precedent. groups of attorneys from the countryside who are appearing in london courts during term-time and living in temporary lodgings start to form guild-like fellowships and buy property where they dine and reside together, called the inns of court. they begin to think of themselves as belonging to a profession, with a feeling of responsibility for training the novices who sat in court to learn court procedures and attorney techniques. they invited these students to supper at the inns of court for the purpose of arguing about the day's cases. the inns of court evolved a scheme of legal education, which was oral and used disputations. thus they became educational institutions as well as clubs for practicing attorneys. the call to the bar of an inn was in effect a degree. to be an attorney one had to be educated and certified at the inns of court. they practice law full time. some are employed by the king. justices come to be recruited from among those who had passed their lives practicing law in court, instead of from the ecclesiastical orders. all attorneys were brought under the control of the justices. there are two types of attorney: one attorney appears in the place of his principal, who does not appear. the appointment of this attorney is an unusual and a solemn thing, only to be allowed on special grounds and with the proper formalities. for instance, a poor person may not be able to afford to travel to attend the royal court in person. the other one is the pleader-attorney, who accompanies his client to court and advocates his position with his knowledge of the law and his persuasiveness. the king came to retain a number of attorneys, called his serjeants at law, to plead his causes for him. edward directed his justices to provide for every county attorneys from among the best, the most lawful, and the most teachable, so the king and people would be well served. thereby were attorneys brought under the control of the justices. in , the city of london made regulations for the admission of both types of attorneys to practice before the civic courts, and for their due control. in the king directed the justices to provide a certain number of attorneys and apprentices to follow the court, who should have the exclusive right of practicing before it. this begins the process which will make the attorney for legal business an "officer of the court" which has appointed him. chapter the times: - waves of the black death, named for the black spots on the body, swept over the nation. the black blotches were caused by extensive internal bleeding. the plague was carried in the blood of black rats and transmitted to humans by the bite of the rat flea, but this cause was then unknown. the first wave of this plague, in , lasted for three years and desolated the nation by about one half the population in the towns and one third in the country. people tried to avoid the plague by flight. the agony and death of so many good people caused some to question their belief in god. also, it was hard to understand why priests who fled were less likely to die than priests who stayed with the dying to give them the last rites. legal and judicial, as well as other public business weere interrupted by theplague and ceased for two years. thus begins a long period of disorganization, unrest, and social instability. customary ways were so upset that authority and tradition were no longer automatically accepted. fields lay waste and sheep and cattle wandered over the countryside. local courts could seldom be held. some monasteries in need of cash sold annuities to be paid in the form of food, drink, clothing, and lodging during the annuitant's life, and sometimes that of his widow also. guilds and rich men made contributions to the poor and ships with provisions were sent to various parts of the country for the relief of starving people. in london, many tradesmen and artisans formed parish fraternities which united people of all social levels and women on almost equal terms with men, in communal devotion and mutual support, such as help in resolving disputes, moral guidance, money when needed, and burial and masses. farm workers were so rare that they were able to demand wages at double or triple the pre-plague rate. the pre-plague had been - d. daily for masons, carpenters, plasterers, and tilers and d. for their laborers. these laborers could buy cheap loaves, gallons of ale, and a gallon of cheap wine or half a pair of shoes. prices did not go up nearly as much as wages. villeins relinquished their tenements, and deserted their manors, to get better wages elsewhere. they became nomadic, roaming from place to place, seeking day work for good wages where they could get it, and resorting to thievery on the highways or beggary where they could not. the robin hood legends were popular among them. in them, robin hood is pure outlaw and does not contribute money to the poor. nor does he court maid marion. villeins spread political songs among each other, such as: "to seek silver to the king, i my seed sold; wherefore my land lieth fallow and learneth to sleep. since they fetched my fair cattle in my fold; when i think of my old wealth, well nigh i weep. thus breedeth many beggars bold; and there wakeneth in the world dismay and woe, for as good is death anon as so for to toil." groups of armed men took lands, manors, goods, and women by force. the villeins agreed to assist each other in resisting by force their lords' efforts to return them to servitude. a statute of laborers passed in for wages to be set at the pre-plague rates was ineffectual. justices became afraid to administer the law. villeins, free peasants, and craftsmen joined together and learned to use the tactics of association and strikes against their employers. the office of justice of the peace was created for every county to deal with rioting and vagrants. this office required no education and was filled by volunteers. cooperation by officials of other counties was mandated to deal with fugitives from its justice. the black death visited again in and in . the black death reduced the population from about million to about / million. it was to rise to about million by . when there were attempts to enforce the legal servitude of the villeins, they spread rhymes of their condition and need to revolt. a secret league, called the "great society" linked the centers of intrigue. a high poll tax, graduated from s. to d., that was to be raised for a war with france, touched off a spontaneous riot all over the nation in . this tax included people not taxed before, such as laborers, the village smith, and the village tiler. each area had its own specific grievances. there was no common political motive, except maladministration in general. in this peasants' revolt, mobs overran the counties around london. the upper classes fled to the woods. written records of the servitude of villeins were burned in their halls, which were also looted. title deeds of landlords were burned. rate rolls of general taxation were destroyed. prisoners were released from gaols. men connected with tax collection, law enforcement, attorneys, and alien merchants were beheaded. the chief justice was murdered while fleeing. the archbishop, who was a notoriously exploitive landlord, the chancellor, and the treasurer were murdered. severed heads were posted on london bridge. a mob took control of the king's empty bedchamber in the tower. the villeins demanded that service to a lord be by agreement instead of by servitude, a commutation of villein service for rents of a maximum of d. per acre yearly, abolition of a lord's right for their work on demand (e.g. just before a hail storm so only his crops were saved), and the right to hunt and fish. the sokemen protested having to use the lord's mill and having to attend his court. the revolt was suppressed and its leaders punished. the king issued proclamations forbidding unauthorized gatherings and ordering tenants of land to perform their customary services. the poll tax was dropped. for the future, the duty to deal with rioting and vagrants was given to royal justices, sheriffs, mayors, bailiffs, and constables as well as the justices of the peace. there was a high justice of the peace in each hundred and a petty constable in each parish. justices of the peace could swear in neighbors as unpaid special constables when disorder broke out. the sheriff was responsible for seeing that men of the lower classes were organized into groups of ten for police and surety purposes, and for holding of hundred and county courts, arresting suspects, guarding prisoners awaiting trial, carrying out the penalties adjudged by the courts, and collecting crown revenue through his bailiffs. royal writs were addressed to the sheriff. because many sheriffs had taken fines and ransoms for their own use, a term limit of one year was imposed. sheriffs, hundreders, and bailiffs had to have lands in the same counties or bailiwicks [so they could be held answerable to the king]. efforts were made to keep laborers at the plough and cart rather than learn a craft or entering and being educated by the church. the new colleges at the universities ceased to accept villeins as students. due to the shortage of labor, landlords' returns had decreased from about % to about %. but some found new methods of using land that were more profitable than the customary services of villeins who had holdings of land or the paid labor of practically free men who paid a money rent for land holdings. one method was to turn the land to sheep breeding. others leased their demesne land, which transferred the burden of getting laborers from the landlord to the lessee-tenant. the payment was called a "farm" and the tenant a "farmer". first, there were stock-and-land leases, in which both the land and everything required to cultivate it were let together. after years, when the farmers had acquired assets, there were pure land leases. landlords preferred to lease their land at will instead of for a term of years to prevent the tenant from depleting the soil with a few richer crops during the last years of his tenancy. the commutation of labor services into a money payment developed into a general commutation of virtually all services. lords in need of money gladly sold manumissions to their villeins. the lord and lady of some manors now ate with their family and entertained guests in a private parlor [from french word 'to speak"] or great chamber, where they could converse and which had its own fireplace. the great chamber was usually at the fireplace end of the great hall, where there was a high table. the great hall had been too noisy for conversation and now was little used. there were also separate chambers or bed-sitting rooms for guests or members the family or household, in which one slept, received visitors, played games, and occasionally ate. some farmers achieved enough wealth to employ others as laborers on their farms. the laborers lived with their employer in his barn, sleeping on hay in the loft, or in mud huts outside the barn. the farmer's family lived at one end of the barn around an open fire. their possessions typically were: livestock, a chest, a trestle table, benches, stools, an iron or bronze cauldron and pots, brooms, wooden platters, wooden bowls, spoons, knives, wooden or leather jugs, a salt box, straw mattresses, wool blankets, linen towels, iron tools, and rush candles [used the pith of a rush reed for the wick]. those who could not afford rush candles could get a dim light by using a little grease in a shallow container, with a few twisted strands of linen thread afloat in it. the peasants ate dark bread and beans and drank water from springs. milk and cheese were a luxury for them. those who could not afford bread instead ate oat cakes made of pounded beans and bran, cheese, and cabbage. they also had leeks, onions, and peas as vegetables. some farmers could afford to have a wooden four-posted bedstead, hens, geese, pigs, a couple of cows, a couple of sheep, or two-plough oxen. july was the month when the divide between rich and poor became most apparent. the rich could survive on the contents of their barns, but the poor tried to survive by grinding up the coarsest of wheat bran and shriveled peas and beans to make some sort of bread. grain and bread prices soared during july. farming still occupied the vast majority of the population. town inhabitants and university students went into the fields to help with the harvest in the summer. parliament was suspended during the harvest. town people had more wealth than country people. most townspeople slept in nightgowns and nightcaps in beds with mattresses, blankets, linen sheets, and pillows. beds were made every morning. bathing was by sponging hot water from a basin over the body, sometimes with herbs in it, rinsing with a splash of warm water, and drying off with a towel. tubs used only for baths came into use. there were drapery rugs hung around beds, handheld mirrors of glass, and salt cellars. the first meal of the day was a light breakfast, which broke the fast that had lasted the night. meals were often prepared according to recipes from cook books which involved several preparation procedures using flour, eggs, sugar, cheese, and grated bread, rather than just simple seasoning. menus were put together with foods that tasted well together and served on plates in several courses. children's sweets included gingerbread and peppermint drops. sheffield cutlery was world famous. table manners included not making sounds when eating, not playing with one's spoon or knife, not placing one's elbows on the table, keeping one's mouth clean with a napkin, and not being boisterous. there were courtesies such as saying "good morning" when meeting someone and not pointing one's finger at another person. king richard ii invented the handkerchief for sneezing and blowing one's nose. there were books on etiquette. cats were the object of superstition, but there was an ancient and honorable order of the men who stroke cats. new burgesses were recruited locally, usually from within a mile radius of town. most of the freemen of the larger boroughs, like canterbury and london, came from smaller boroughs. an incoming burgess was required to buy his right to trade either by way of a seven year apprenticeship or by payment of an entry fee. to qualify, he needed both a skill and social respectability. towns started acquiring from the king the right to vacant sites and other waste places, which previously was the lord's right. the perpetuality of towns was recognized by statutes of , which compared town-held property to church-held property. the right of london to pass ordinances was confirmed by charter. some towns had a town clerk, who was chief of full-time salaried officers. there was a guildhall to maintain, a weigh-house, prison, and other public buildings, municipal water supplies, wharves, cranes, quays, wash-houses, and public lavatories. after the experience of the black death, some sanitary measures were taken. the notorious offenders in matters of public hygiene in the towns, such as the butchers, the fishmongers, and the leather tanners were assigned specific localities where their trades would do least harm. the smiths and potters were excluded from the more densely populated areas because they were fire risks. in the town of salisbury, there was butcher row, ox row, fish row, ironmongers' row, wheelwrights' row, smiths' row, pot row, silver street, cheese market, and wool market. for water, most communities depended on rivers that ran near by or on public wells that were dug to reach the water underground. some towns had water public water supply systems. fresh water was brought into the town from a spring or pond above the town by wood or lead pipes or open conduits. sometimes tree trunks were hollowed out and tapered at the ends to fit into the funnel-shaped end of another. but they leaked a lot. in london, a conduit piped water underground to a lead tank, from which it was delivered to the public by means of pipes and brass taps in the stone framework. this was london's chief water supply. water carriers carried water in wooden devices on their backs to houses. the paving and proper drainage of the streets became a town concern. building contracts began specifying the provision of adequate cesspits for the privies at town houses, whether the latrines were built into the house or as an outhouse. also, in the better houses, there grew a practice of carting human and animal fecal matter at night to dung heaps outside the city walls. there was one public latrine in each ward and about twelve dung carts for the whole city. country manor houses had latrines on the ground floor and/or the basement level. in london, the goldsmiths, merchant taylors [tailors], skinners, and girdlers bought royal charters, which recognized their power of self-government as a company and their power to enforce their standards, perhaps throughout the country. the goldsmiths, the mercers, and the saddlers became in the first guilds to receive charters of incorporation, which gave them perpetual existence. as such they could hold land in "mortmain" [dead hand], thus depriving the king of rights that came to him on the death of a tenant-in-chief. they were authorized to bestow livery on their members and were called livery companies. the liverymen [freemen] of the trading companies elected london's representatives to parliament. in all towns, the organization of craft associations spread rapidly downwards through the trades. these associations sought self-government. craft guilds were gaining much power relative to the old merchant guilds in governing the towns. the greater crafts such as the fishmongers, skinners, and the corders (made rope, canvas, and pitch) organized and ultimately were recognized by town authorities as self-governing craft guilds. the building trade guilds such as the tilers, carpenters, masons, and joiners, became important. masons were still itinerant, going to sites of churches, public buildings, or commanded by the king to work on castles. the guild was not necessarily associated with a specific product. for instance, a saddle and bridle were the result of work of four crafts: joiner (woodworker), painter, saddler (leather), and lorimer (metal trappings). in london in craft guilds included: baker, fishmonger (cut up and sold fish), fruitier, brewer, butcher, bird dealer, cook, apothecary (sold potions he had ground up), cutler (made knives and spoons), barber, tailor, shoemaker, glover (made gloves), skinner (sold furs), girdler (made girdles of cloth to wear around one's waist), pouchmaker, armorer, sheathmaker, weaver, fuller, painter, carpenter, joiner (woodworker who finished interior woodwork such as doors and made furniture), tiler, mason (cut stone for buildings), smith (made metal tools for stonemasons and builders), tallow chandler (made candles and sometimes soap from the fat and grease the housewife supplied), wax chandler (made candles), stirrup maker, spurrier (made spurs), and hosteler (innkeeper). however, the merchant guilds of the goldsmiths, vintners (sold wine), mercers (sold cloth), grocers, and drapers (finished and sold english cloth) were still strong. it was a long custom in london that freemen in one company could practice the trade of another company. there were paint mills and saw mills replacing human labor. there were apothecary shops and women surgeons. women who earned their own living by spinning were called "spinsters". some prices in london were: a hen pastry d., a capon pastry d., a roast pheasant d., a roast heron d., roast goose d., a hen d., a capon d., three roast thrushes d., ten larks d., ten finches d, and ten cooked eggs d. many of the guilds bought sites on which they built a chapel, which was later used as a secular meeting place. the guild officers commonly included an alderman, stewards, a dean, and a clerk, who were elected. the guild officers sat as a guild court to determine discipline for offenses such as false weights or measures or false workmanship or work and decided trade disputes. the brethren in guild fraternity were classified as masters, journeymen, or apprentices. they were expected to contribute to the support of the sick and impoverished in their fellowship. their code required social action such as ostracizing a man of the craft who was living in adultery until he mended his ways. the rules of the company of glovers were: . -none but a freeman of the city shall make or sell gloves. . -no glover may be admitted to the freedom of the city unless with the assent of the wardens of the trade. . -no one shall entice away the servant of another. . -if a servant in the trade makes away with his master's chattels to the value of d., the wardens shall make good the loss; and if the servant refuses to be judged by the - - wardens, he shall be taken before the mayor and aldermen. . -no one may sell his goods by candlelight. . -any false work found shall be taken before the mayor and aldermen by the wardens. . -all things touching the trade within the city between those who are not freemen shall be forfeited. . -journeymen shall be paid their present rate of wages. . -persons who entice away journeymen glovers to make gloves in their own houses shall be brought before the mayor and aldermen. . any one of the trade who refuses to obey these regulations shall be brought before the mayor and aldermen. cordwainers [workers in soft cordovan leather from spain, especially shoes] of good repute petitioned the city of london in for ordinances on their trade as follows: "to the mayor and aldermen of the city of london pray the good folks of the trade of cordwainers of the same city, that it may please you to grant unto them the articles that follow, for the profit of the common people; that so, what is good and right may be done unto all manner of folks, for saving the honor of the city and lawfully governing the said trade. in the first place - that if any one of the trade shall sell to any person shoes of bazen [sheepskin tanned in oak or larch-bark] as being cordwain, or of calf-leather for ox-leather, in deceit of the common people, and to the scandal of the trade, he shall pay to the chamber of the guildhall, the first time that he shall be convicted thereof, forty pence; the second time, s. half a mark; and the third time the same, and further, at the discretion of the mayor and aldermen. also - that no one of the trade shall keep house within the franchise if he be not free [invested with the rights or privileges] of the city and one knowing his trade, and that no one shall be admitted to the freedom without the presence of the wardens of the trade bearing witness to his standing, on the pain aforesaid. also - if any one of the trade shall be found offending touching the trade, or rebellious against the wardens thereof, such person shall not make complaint to any one of another trade, by reason of the discord or dissension that may have arisen between them; but he shall be ruled by the good folks of his own trade. and if he shall differ from them as acting against right, then let the offense be adjudged upon before the mayor and aldermen; and if he be found rebellious against the ordinance, let him pay to the chamber the sum above mentioned. also - that no one of the trade shall entice or purloin the servant of another from the service of his master by paying him more than is ordained by the trade, on the pain aforesaid. also - that no one shall carry out of his house any wares connected with his trade for sale in market or elsewhere except only at a certain place situated between soperesland and the conduit; and that at a certain time of the day, that is to say, between prime [the first hour of the day] and noon. and that no shoes shall exceed the measure of seven inches, so that the wares may be surveyed by the good folks of the trade, because of the deceit upon the common people that might ensue and the scandal of the trade, on the pain aforesaid. also - that no one shall expose his wares openly for sale in market on sundays at any place, but only within his own dwelling to serve the common people, on the pain aforesaid. also - that if any one sells old shoes, he shall not mix new shoes among the old in deceit of the common people and to the scandal of the trade, on the pain aforesaid." smithfield was a field outside the city gates at which horses were sold and raced. in , the horse dealers and drovers petitioned for a tax on animals sold there to pay for cleaning the field. the city ordinance reads as follows: "on wednesday next after the feast of st. margaret the virgin came reputable men, the horse dealers and drovers, and delivered unto the mayor and aldermen a certain petition in these words: 'to the mayor, recorder, and aldermen show the dealers of smithfield, that is to say, the coursers and drovers, that for the amendment of the said field they have granted and assented among them that for the term of three years next ensuing after the date of this petition for every horse sold in the said field there shall be paid one penny, for every ox and cow one halfpenny, for every eight sheep one penny, and for every swine one penny by the seller and the same by the purchaser who buys the same for resale.` afterwards, on the eleventh day of august in the same year, adam fernham, keeper of the gaol at newgate, hugh, averelle, bailiff of smithfield, and william godhewe, weaver, were chosen and sworn faithfully to collect and receive the said pennies in form aforesaid and to clean the field of smithfield from time to time during such term of three years when necessary." many london houses were being made from stone and timber and even brick and timber, instead of just timber and mud. however, chimneys were still a luxury of the rich. they were made of stone, tile, or plaster. there were windows of glass and a guild of glaziers was chartered by the king. a typical merchant's house had a cellar; a ground floor with a shop and storage space; a first floor with a parlor to receive guests, a spacious hall for dining, and perhaps a kitchen; and at the top, a large family bedroom and a servant's room. stairwells between floors had narrow and winding steps. many single-roomed houses added a second-floor room for sleeping, which was approached by a wooden or stone staircase from the outside. their goods were displayed on a booth outside the door of the house or hung in the windows. they were stored at night in the cellar. over the booths swung huge signs, which had to be nine feet above street level to allow a man on horseback to ride underneath. there were no sidewalks. street repair work for wages was supervised by a stone master. the streets sloped down from the middle so that the filth of the streets would run down the sides of the road. there were many wood chips in the streets due to cutting up of firewood before taking it indoors. people often threw the rubbish from their houses onto the street although they were supposed to cart it outside the city walls and to clean the frontage of their houses once a week. dustmen scavenged through the rubbish on the streets. pigs and geese were no longer allowed to run at large in the streets, but had to be fed at home. there were other city rules on building, public order, the use of fountains, precautions against fire, trading rights in various districts, closing time of taverns, and when refuse could be thrown into the streets, e.g. nighttime. aldermen were constantly making rounds to test measures and weights, wine cups, the height of tavern signs, and the mesh of the fishing nets, which had to be at least two inches wide. they saw that the taverns were shut when curfew was rung and arrested anyone on the street after curfew who had a weapon, for no one with a sword was allowed on the streets unless he was some great lord or other substantial person of good reputation. wards provided citizens to guard the gates in their respective neighborhood and keep its key. the city was so dense that nuisance was a common action brought in court, for instance, vegetable vendors near a church obstructing passageway on the street or plumbers melting their solder with a lower than usual shaft of the furnace so smoke was inhaled by people nearby. crime in london was rare. murder, burglary, highway robbery, and gross theft were punishable by hanging. forgery and fraud, were punishable by the placement in the pillory or stocks or by imprisonment. perjury was punished by confession from a high stool for the first offense, and the pillory for the second. slander and telling lies were punished by the pillory and wearing a whetstone around one's neck. there was an ordinance passed against prostitutes in . london as well as other port towns had not only prostitutes, but syphilis. prominent londoners sought to elevate their social position by having their family marry into rural landholding families of position. for poor boys with talent, the main routes for advancement were the church, the law, and positions in great households. many master freemasons, who carved freestone or finely grained sandstone and limestone artistically with mallet and chisel, left the country for better wages after their wages were fixed by statute. the curvilinear gothic style of architecture was replaced by the perpendicular style, which was simpler and cheaper to build. church steeples now had clocks on them with dials and hands to supplement the church bell ringing on the hour. alabaster was often used for sepulchral monuments instead of metal or stone. with it, closer portraiture could be achieved. in the s and s the london population suffered from tuberculosis, typhus, influenza, leprosy, dysentery, smallpox, diphtheria, measles, heart disease, fevers, coughs, cramps, catarrhs and cataracts, scabs, boils, tumors, and "burning agues". there were also many deaths by fires, burning by candles near straw beds when drunk, falling downstairs when drunk, and drowning in the river or wells. children were often crushed by carts, trampled by horses, or mauled by pigs. towns recognized surgery as a livelihood subject to admission and oath to serve the social good. master surgeons were admitted to practice in in london in full husting before the mayor and the aldermen and swore to: [ ] faithfully serve the people in undertaking their cures, [ ] take reasonably from them, [ ] faithfully follow their calling, [ ] present to the said mayor and aldermen the defaults of others undertaking, so often as should be necessary, [ ] to be ready, at all times when they should be warned, to attend the maimed or wounded and others, [ ] to give truthful information to the officers of the city as to such maimed, wounded, or others whether they be in peril of death or not, and [ ] to faithfully do all other things touching their calling. some young girls of good families were boarded at nunneries to be taught there. some upper class widows retired there. only women were allowed to be present at a birth, at which they spread the knowledge of midwifery. as usual, many women died giving birth. various ways to prevent pregnancy were tried. it was believed that a baby grew from a seed of the father planted in the woman's body. infant mortality was especially high in boroughs and burgess family lines usually died out. a three-generation family span was exceptional in the towns, despite family wealth. after the plague, gentlemen no longer had their children learn to speak norman. the grammar schools taught in english instead of norman as of . bishops began to preach in english. english became the official language of parliament, in , and in the courts, replacing norman and latin. the requirements of elementary and higher studies were adjusted in and began the public school system. william of wykeham's school, st. mary college of winchester in oxford was the prototype. the curriculum was civil law, canon law, medicine, with astronomical instruments that students made, theology, and the arts. the arts textbooks were still grammar, logic, donatus, and aristotle. many laymen were literate, for instance country gentry, merchants, and craftsmen. laymen instead of clerics were now appointed to the great offices of state. a will in in which a wealthy citizen arranges for one son to become an attorney and the other a merchant: "will of william de tonge, citizen of london: one hundred marks each to my two sons. and i will that my said two sons shall live upon the profits of the money bequeathed to them above until the age of twenty years. and if my said two sons be well learned in grammar and adorned with good manners, which shall be known at the end of twenty years, and the elder son wish to practice common law, and if it is known that he would spend his time well in that faculty, i will that over and above the profit of the said one hundred marks he shall have yearly from my rents for the term of seven years five marks. and if he should waste his time aforesaid, or if he should marry foolishly and unsuitably, i will that he receive nothing more of the said five marks. and if younger son wishes to attend the university of oxford or to establish himself well in the mystery of a merchant after the age of twenty years, and [if] there be knowledge of his praiseworthy progress in his faculty or his carefulness in trading ... i will that he shall receive five marks yearly in the manner described above for his maintenance, over and above the profit of the said one hundred marks to him bequeathed, for the space of seven years; and if he behave himself otherwise, i will that thereupon he be excluded from the said five marks. and in case the said bequest of marks to him and his brother shall be annulled so that he shall have nothing therefrom ... then the said marks shall be spent upon all the yearly chaplains who can be had to celebrate divine service in the church of all hallows for my soul." most great lords were literate. many stories described good men, who set an example to be followed, and bad men, whose habits were to be avoided. stories were written about pilgrimage vacations of ordinary people to religious sites in england. will langland's poem "the vision of william concerning piers plowman" portrays a pilgrimage of common people to the shrine of truth led by a virtuous laborer. mystics wrote practical advice with transcendental teaching, for instance "scale of perfection" attributed to walter hilton and "cloud of unknowing". richard rolle wrote about spiritual matters, probably the "prick of conscience". richard de bury wrote "philobiblon" about book lovers. jean froissart wrote the "chronicles" on knights. courtly ideals were expressed in "sir gawaine and the grene knyght", wherein the adventures of the hero, an arthur knight, are allegorical in the struggle against the world, the flesh, and the devil ( ). "pearl" eulogized all that is pure and innocent on the event of the death of a two year old child. marco polo's book of discoveries on his journey to china was known. geoffrey chaucer was a squire and diplomat of the king. his "tales of the canterbury pilgrims" portrayed characters of every social class, including the knight with his squire, abbot, prioress, nun, priest, monk, friar, poor parson of the country, summoner (who enforced the jurisdiction and levied the dues of the church courts), pardoner (sold pardons from the pope), scholar, attorney, doctor, merchant, sailor, franklin, yeoman, haberdasher, tapestry- maker, ploughman, cook, weaver, dyer, upholsterer, miller, reeve, carpenter. there were chaucer stories about a beautiful and virtuous wife disliked by her mother-in-law, the difficulty of marriage between people of different religions, the hatred of a poor person by his brother and his neighbor, rich merchants who visited other kingdoms, the importance of a man himself following the rules he sets for other people's behavior, the spite of a man for a woman who rejected him, the relative lack of enthusiasm of a wife for sex as compared to her husband, a mother giving up her own comfort for that of her child, the revenge killing of a murderer by the dead man's friends, the joy of seeing a loved one after years of separation, that life is more sad than happy, that lost money can be retrieved, but time lost is lost forever. other stories in the canterbury tales were about two men who did not remain friends after they fell in love with the same woman, about a child who preferred to learn from an older child than from his schoolteacher, about a wife who convinced her husband not to avenge her beating for the sake of peace, about a man who woke up from bad dreams full of fear, about a man wanting to marry a beautiful woman but later realizing a plain wife would not be pursued by other men, about a man who drank so much wine that he lost his mental and physical powers, about a woman who married for money instead of love, about a man who said something in frustration which he didn't mean, about a person brought up in poverty who endured adversity better than one brought up in wealth, about a wife who was loving and wise, about a good marriage being more valuable than money, about a virgin who committed suicide rather than be raped, about a wife persuaded to adultery by a man who said he would otherwise kill himself, about three men who found a pile of gold and murdered each other to take it all, about an angry man who wanted to kill, about a malicious man who had joy in seeing other men in trouble and misfortune, about a man whose face turned red in shame, about a wife expecting to have half of what her husband owned. political songs and poems were written about the evil times of king edward ii, the military triumphs of king edward iii, and the complaints of the poor against their oppressors, such as "song of the husbandman". john gower wrote moralizing poems on the villein's revolt, the sins of the clergy and attorneys, and the bad rule of king richard ii, who in succeeded edward iii. robin hood ballads were popular. the minstrel, who was a honorable person, replaced the troubadour of older times. there were many colleges at oxford and cambridge due to the prohibition of gifts to the church. laymen instead of ecclesiastics were appointed as chancellor. the masters at oxford got rid of ecclesiastical supervision by a bishop and archdeacon by . one could be admitted as a student at age thirteen. the rate of maintenance for a student was d. weekly. a bachelor of arts degree was granted after four years of study and an oral exam. required reading in for the bachelor's degree was the new logic of aristotle ("prior and posterior analytics" e.g. on syllogistic logic and deduction, the "topics", or the "sophistical refutations", e.g. logical fallacies such as from 'all a are b' to 'all b are a'), and a selection from these aristotle works on physics: "of heaven and earth", "on the soul", "of meteors", "of birth and decay", or "of feeling and what is felt" with "of memory and recollection" and "of sleep and waking", or "of the movement of animals" with "of minor points in natural history". a master of arts degree could be awarded after three more years of study and teaching. a doctorate degrees in theology required ten more years of study. a doctorate in civil or canon law required eight more years. a man with a degree in canon law who wanted to practice in a certain bishop's court had to first satisfy this bishop of his competence. another source of legal learning was in london, where the guilds gave rise to the inns of court. they used the register of writs, the case law of the year books, and disputation to teach their students. for a doctorate in medicine from oxford or cambridge, five more years plus two years of practice were required. surgery was not taught because it was considered manual labor, and there was some feeling that it was a sacrilege and dishonorable. urinalysis and pulse beat were used for diagnosis. epilepsy and apoplexy were understood as spasms inside the head. it was known what substances served as laxatives and diuretics. teeth were extracted, eye cataracts were removed with a silver needle, and skin from the arm was grafted onto a mutilated face. englishmen who had collected books on philosophy, medicine, astronomy, and history and literature books from the continent gave their collections to the universities, which started their libraries. paper supplemented parchment, so there were more books. england was still an agricultural rather than a manufacturing country. imported were cloth, silks, linen, velvets, furs, glass, wines, candles, millstones, amber, iron, and mercury. exported were wool, leather, lead, tin, and alabaster for sculpturing. merchant adventurers came to manufacture cloth good enough for export and began to buy up raw wool in such quantity that its export declined. they took their cloth abroad to sell, personally or by agents. an oxford theologian and preacher, john wyclif, voiced the popular resentment of the materialism of the church, benefit of clergy, immorality of priests, and the selling of indulgences and pardons. encouraged by the king, he argued against the supremacy of the papal law over the king's courts and against payments to the papacy. he opined that the church had no power to excommunicate. the friars had become mere beggars and the church was still wealthy. he proposed that all goods should be held in common by the righteous and that the church should hold no property but be entirely spiritual. he believed that people should rely on their individual consciences. he thought that the bible should be available to people who could read english so that the people could have a direct access to god without priests or the pope. towards this end, he translated it from latin into english in . his preachers spread his views throughout the country. the church then possessed about one-third of the land of the nation. parliament met about twice a year and lasted from two weeks to several months. there was a well-defined group of about fifty barons and a few spiritual peers who were always summoned to parliament and who composed a house of lords. "peer" now meant a member of the house of lords. all peers had the right to approach the king with advice. the baron peers reasoned that the custom of regular attendance was a right that should be inherited by the eldest son, or by a female heir, if there were no male heirs. however, the theory of nobility by blood as conveying political privilege had no legal recognition. no female could attend parliament; the husband of a baroness attended parliament in her stead. edward iii and richard ii created new peers with various titles of dignity, such as duke and marquess, which were above barons and earls. the dukes and marquesses were identified with a territorial designation such as an english county or county town. whenever a parliament was assembled the commons were present. the commons was composed of representatives from boroughs and counties. each new parliament required an election of representatives. the members of the commons were generally the most prominent and powerful economic and political figures of the county and were repeatedly reelected. the electors were usually influenced by the sheriff or a powerful lord who suggested suitable men. the wealthy merchants typically represented the boroughs and paid much of the taxes. under edward iii, the commons took a leading part in the granting of taxes and the presentation of petitions and became a permanent and distinct body, the house of commons, with a spokesman or "speaker", chosen by the crown, and a clerk. the speaker came to be an intermediary between the commons and the king and between the commons and the lords. a clerk of parliament registered its acts and sat with the lords. a clerk of the crown superintended the issue of writs and the receipt of the returns and attested the signature of the king on statutes. it became a regular practice for the chancellor to open parliament with an opportunity to present petitions after his opening speech. the king then referred them to certain peers and justices, who decided to which court, or parliament, they should be sent. during the s, the number of barons going to parliament gradually decreased. at the parliament, ("the good parliament") the commons, which formerly had only consented to taxes, took political action by complaining that the king's councilors had grown rich by war profiteering at the cost of impoverishing the nation and the people were too poor to endure any more taxation for the war and held a hearing on financial malfeasance and dishonesty of two ministers. the chamberlain had extorted enormous sums, had intercepted fines meant for the king's treasury, and had sold a castle to the enemy. the steward had bought debts of the king's. the house of lords, the high court of parliament, found the charges proved and dismissed them permanently from office. this established the constitutional means for impeachment and prosecution by the commons and removal by the house of lords of ministers. by this process, there could be no royal intimidation, as there could be in the ordinary courts. the commons demanded that its members be elected by county citizens rather than appointed by the sheriff. the roles of parliament and the king's council are starting to differentiate into legislative and executive, respectively. the legislative function is lawmaking, and the executive is regulation-making that refines and effectuates the laws of parliament. but the legislative, executive, and judicial authorities have not as yet become so completely separated that they cannot on occasion work together. sheriffs dealt directly with the king instead of through an earl. from to , resistance was an ordinary remedy for political disagreements. if a popular leader raised his standard in a popular cause, an irregular army could be assembled in a day. (there was no regular army, since england was protected by the sea from invasion.) so misgovernment by a king would be quickly restrained. society recovered quickly from conflict and civil war because the national wealth consisted chiefly in flocks and herds and in the simple buildings inhabited by the people. in a week after armed resistance, the agricultural worker was driving his team. there was little furniture, stock of shops, manufactured goods, or machinery that could be destroyed. to support a war with france, the staple was reinstated by statute of after an experiment without it in which profits of a staple went to staples outside the nation. wool exports were inspected for quality and taxed through his officials only at the designated staple ports. these officials included collectors, controllers, searchers [inspectors], surveyors, clerks, weighers, and crane-keepers. wool, woolfells, leather, and lead sold for export had to go through the staple town. the penalty was forfeiture of lands, tenements, goods, and chattel. the mayor and constables of the staple were elected annually by the native and foreign merchants of the place. the mayor gave validity to contracts for a set fee, by seal of his office. he and the constables had jurisdiction over all persons and things touching the staple, which was regulated by the law merchant in all matters of contract, covenant, debt, and felonies against foreign merchants. a hue and cry was required to be raised and followed for anyone taking a cart of merchandise or slaying a merchant, denizen [resident alien] or alien, or the town would answer for the robbery and damage done. in , calais, a continental town held by the english, became the staple town for lead, tin, cloth, and wool and was placed under a group of london capitalists: the merchants of the staple. all exports of these had to pass through calais, where customs tax was collected. the staple statute remained basically unchanged for the next years. guns and cannon were common by . in the s and s, the king relied on mercenaries hired directly or by contract with his great nobles for foreign wars. the king reimbursed the contractors with the profits of war, such as the ransoms paid by the families of rich prisoners. the fighting men supplemented their pay by plunder. featherbeds and blooded horses were favorite spoils of war brought back to england from the continent. as new techniques with footmen came into being, the footmen became the core of the army and the knightly abilities of the feudal tenants-in-chief became less valuable. many lords got men to fight with them by livery and maintenance employment agreements such as this one of : "bordeaux, february . this indenture, made between our lord king john [of gaunt, of castile, etc.] of the one part and symkyn molyneux, esquire, of the other part, witnesses that the said symkyn is retained and will remain with our said lord for peace and for war for the term of his life, as follows: that is to say, the said symkyn shall be bound to serve our said lord as well in time of peace as of war in whatsoever parts it shall please our said lord, well and fitly arrayed. and he shall be boarded as well in time of peace as of war. and he shall take for his fees by the year, as well in time of peace as of war, ten marks sterling from the issues of the duchy of lancaster by the hands of the receiver there who now is or shall be in time to come, at the terms of easter and michaelmas by even portions yearly for the whole of his life. and, moreover, our lord has granted to him by the year in time of war five marks sterling by the hands of the treasurer of war for the time being. and his year of war shall begin the day when he shall move from his inn towards our said lord by letters which shall be sent to him thereof, and thenceforward he shall take wages coming and returning by reasonable daily [payments] and he shall have fitting freightage for him, his men, horses, and other harness within reason, and in respect of his war horses taken and lost in the service of our said lord, and also in respect to prisoners and other profits of war taken or gained by him or any of his men, the said our lord will do to him as to other squires of his rank." forecastles and stern castles on ships were lower and broader. underneath them were cabins. the english ship was still single masted with a single square sail. a fleet was formed with over ships selected by the english admirals acting for the king at the ports. men were seized and pressed into service and criminals were pardoned from crimes to become sailors in the fleet, which was led by the king's ship. they used the superior longbow against the french sailor's crossbow. in , the tower of london had four mounted fortress cannon and the port of dover had six. the war's disruption of shipping caused trade to decline. but the better policing of the narrow seas made piracy almost disappear. english merchants may carry their merchandise in foreign ships if there are no english ships available. anyone may ship or carry grain out of the nation, except to enemies, after paying duties. but the council may restrain this passage when necessary for the good of the nation. any merchant, privy or stranger, who was robbed of goods on the sea or lost his ship by tempest or other misfortune on the sea banks, his goods coming to shore could not be declared wreck, but were to be delivered to the merchant after he proves ownership in court by his marks on the goods or by good and lawful merchants. all stakes and obstacles set up in rivers impeding the passage of boats shall be removed. waterpower was replacing foot power in driving the mills where cloth was cleaned and fulled. a boundary dispute between two barons resulted in the first true survey map. nine cow pastures were divided by a boundary marked by a shield on a pole which the commission of true and sworn men had set up. king richard ii, an irresponsible sovereign, asserted an absolute supremacy of the king over parliament and declared certain statutes which he claimed to have been forced on him to be revoked. he interfered with county elections of knights to parliament by directing sheriffs to return certain named persons. he wanted to dispense altogether with parliament and instead have a committee of representatives. he claimed that the goods of his subjects were his own and illegally taxed the counties. there were many disputes as to who should be his ministers. high treason was extended to include making a riot and rumor, compassing or purposing to depose the king, revoking one's homage or liege to the king, or attempting to repeal a statute. when henry bolingbroke reported to parliament that another lord had cast doubt on the king's trustworthiness, a duel between them was arranged. but richard, probably fearing the gain of power of the lord who won, instead exiled the two lords. he took possession of the lancaster estates to which bolingbroke was heir and forbade this inheritance. this made all propertied men anxious and they united behind bolingbroke in taking up arms against richard. richard was not a warrior king and offered to resign the crown. the "merciless parliament" of swept out richard's friends. parliament deposed and imprisoned richard. it revoked the extensions to the definition of high treason. it elected bolingbroke, who claimed to be a descendant of henry iii, to be king henry iv. this action established clearly that royal decrees were subordinate to parliamentary statutes, that parliament was the ultimate legal arbiter of the realm, and that the consent of parliament was necessary in determining kingship. the house of commons became very powerful. it was responsible for the major part of legislation. it's members began to assert the privilege of free speech. that is, they wanted to discuss other matters than what was on the king's agenda and they opposed punishment for what they said unless it was treasonable. henry iv agreed to their request not to consider reports of proceedings unless they came to him through official channels. the law high treason was defined by statute in as levying war against the king, aiding the king's enemies, compassing or imagining the death of the king, queen, or their eldest son and heir, or violating the queen or the eldest unmarried daughter or the wife of the king's eldest son and heir; making or knowingly using counterfeits of the king's great or privy seal or coinage; or slaying the chancellor, treasurer, or any justice in the exercise of their duty. the penalty was forfeit of life and lands. petty treason was defined by statute and included a servant slaying his master, a wife her husband, or a man his lord, to whom was owed faith and obedience. no one shall tell false news or lies about prelates, dukes, earls, barons, and other nobles and great men or the chancellor, treasurer, a justice, clerk of the privy seal, steward of the king's house whereby debates and discords might arise between these lords or between the lords and the commons. cases shall be tried by the king's council, which included the chancellor, treasurer, and chief justices. preachers drawing crowds by ingenious sermons and inciting them to riot shall be arrested by sheriffs and tried by the ecclesiastical court. any stranger passing at night of whom any have suspicion shall be arrested and taken to the sheriff. no man shall ride with a spear, upon pain of forfeiting it. no servant of agriculture or laborer shall carry any sword or dagger, or else forfeit it, except in time of war in defense of the nation. he may carry bow and arrow [for practice] on sundays and holy days, when he should not play games such as tennis, football, or dice. no one may enter another's land and tenements by strong hand nor with a mob, upon pain of imprisonment and ransom at the king's will. charters, releases, obligations, quitclaim deeds and other deeds burnt or destroyed in uprisings shall be reissued without fee, after trial by the king and his council. manumissions, obligations, releases and other bonds and feoffments in land made by force, coercion or duress during mob uprisings are void. men who rape and women consenting after a rape shall lose their inheritance and dower and joint feoffments. the husbands, or father or next of kin of such women may sue the rapist by inquisition, but not by trial by combat. the penalty is loss of life and member. the statute of laborers of required all workers, from tailors to ploughmen, to work only at pre-plague wage rates and forced the vagrant peasant to work for anyone who claimed him or her. it also encouraged longer terms of employment as in the past rather than for a day at a time. statutory price controls on food limited profits to reasonable ones according to the distance of the supply. later, wages were determined in each county by justices of the peace according to the dearth of victuals while allowing a victualer a reasonable profit and a penalty was specified as paying the value of the excess wages given or received for the first offense, double this for the second offense, and treble this or forty days imprisonment for the third offense. a fugitive laborer will be outlawed, and when found, shall be burnt in the forehead with the letter "f" for falsity. children who labored at the plough and cart or other agriculture shall continue in that labor and may not go into a craft. a statute of designed to stop hoarding various types of merchandise until a type became scarce so to sell it at high prices, required merchants to deal in only one type of merchandise. it also required craftsmen to work in only one craft as before (except women who traditionally did several types of handiwork). this was repealed a year later. where scarcity has made the price of poultry high, it shall be lowered to d. for a young capon, d. for an old capon or a goose, d. for a hen, and d. for a pullet. the fares for passage on boats on fresh waters and from dover to the continent shall remain at their old rate. any merchant selling at a fair after it has ended will forfeit to the king twice the value of that sold. anyone finding and proving cloth contrary to the assize of cloth shall have one-third of it for his labor. no shoemaker nor cordwainer shall tan their leather and no tanner shall make shoes, in order that tanning not be false or poorly done. all denizen [foreigner permitted to reside in the realm with certain rights and privileges] and alien merchants may buy and sell goods and merchandise, in gross, in any part of the country, despite town charters or franchises, to anyone except an enemy of the king. they may also sell small wares: victuals, fur, silk, coverchiefs [an item of woman's apparel], silver wire, and gold wire in retail, but not cloth or wine. they must sell their goods within three months of arrival. any alien bringing goods to the nation to sell must buy goods of the nation to the value of at least one-half that of his merchandise sold. these merchants must engage in no collusion to lower the price of merchandise bought, take merchandise bought to the staple, and promise to hold no staple beyond the sea for the same merchandise. an amendment disallowed denizens from taking wools, leather, woolfells, or lead for export, but only strangers. towns failing to bring disturbers of this right to justice shall forfeit their franchise to the king and pay double damages to the merchant. the disturber shall be imprisoned for a year. cloth may not be tacked nor folded for sale to merchants unless they are opened to the buyers for inspection, for instance for concealed inferior wool. workers, weavers, and fullers shall put their seals to every cloth. anyone may bring his own wools, woolfells, leather, and lead to the staple to sell without being compelled to sell them in the country. special streets or warehouses were appointed with warehouse rent fixed by the mayor and constables with four of the principal inhabitants. customs duties were regulated and machinery provided for their collection. no one may forestall or regrate, that is, buy at one price and sell at a higher price in the same locale. forestallers were those who bought raw material on its way to market. regrators were those who tried to create a "corner" in the article in the market itself. imported cloth shall be inspected by the king's officials for non- standard measurements or defects [despite town franchises]. no one shall leave the nation except at designated ports, on pain of one year's imprisonment. social distinctions by attire were mandated by statute of . a servant, his wife, son, or daughter, shall only wear cloth worth no more than s. and shall not have more than one dish of meat or fish a day. carters, ploughmen, drivers of the plough, oxherds, cowherds, shepherds, and all other people owning less than s. of goods and chattels shall only wear blanket and russet worth no more than d. and girdles of linen according to their estate. craftsmen and free peasants shall only wear cloth worth no more than s. esquires and gentlemen below the rank of knight with no land nor rent over , s. a year shall only wear cloth worth no more than s., no gold, silver, stone, fur, or the color purple. esquires with land up to , s. per year may wear s. cloth, cloth of silk and silver, miniver [grey squirrel] fur and stones, except stones on the head. merchants, citizens, burgesses, artificers, and people of handicraft having goods and chattels worth , s. shall wear cloth the same value as that worn by esquires and gentlemen with land or rent within , s. per year. the same merchants and burgesses with goods and chattels worth , s. and esquires and gentlemen with land or rent within s. per year may not wear gold cloth, miniver fur, ermine [white] fur, or embroidered stones. a knight with land or rents within , s. yearly are limited to cloth of s., but his wife may wear a stone on her head. knights and ladies with land or rents within , s. to , s. yearly may not wear fur of ermine or of letuse, but may wear gold, and such ladies may wear pearls as well as stones on their heads. the penalty is forfeiture of such apparel. this statute is necessary because of "outrageous and excessive apparel of diverse persons against their estate and degree, to the great destruction and impoverishment of all the land". if anyone finds a hawk [used to hunt birds, ducks, and pheasant] that a lord has lost, he must take it to the sheriff for keeping for the lord to claim. if there is no claim after four months, the finder may have it only if he is a gentleman. if one steals a hawk from a lord or conceals from him the fact that it has been found, he shall pay the price of the hawk and be imprisoned for two years. no laborer or any other man who does not have lands and tenements of the value of s. per year shall keep a greyhound or other hound or dog to hunt, nor shall they use nets or cords or other devices to take deer, hare, rabbits, nor other gentlemen's game, upon pain of one year imprisonment. (the rabbit had been introduced by the normans.) this law was primarily intended to stop the meetings of laborers and artificers. no man shall eat more than two courses of meat or fish in his house or elsewhere, except at festivals, when three are allowed [because great men ate costly meats to excess and the lesser people were thereby impoverished]. no one may export silver, whether bullion or coinage, or wine except foreign merchants may carry back the portion of their money not used to buy english commodities. the penalty for bringing false or counterfeit money into the nation is loss of life and member. an assigned searcher [inspector] for coinage of the nation on the sea passing out of the nation or bad money in the nation shall have one third of it. no foreign money may be used in the nation. each goldsmith shall have an identifying mark, which shall be placed on his vessel or work only after inspection by the king's surveyor. no one shall give anything to a beggar who is capable of working. vagrants begging in london were banned by this ordinance: "forasmuch as many men and women, and others, of divers counties, who might work, to the help of the common people, have betaken themselves from out of their own country to the city of london and do go about begging there so as to have their own ease and repose, not wishing to labor or work for their sustenance, to the great damage of the common people; and also do waste divers alms which would otherwise be given to many poor folks, such as lepers, blind, halt, and persons oppressed with old age and divers other maladies, to the destruction of the support of the same - we do command on behalf of our lord the king, whom may god preserve and bless, that all those who go about begging in the said city and who are able to labor and work for the profit of the common people shall quit the said city between now and monday next ensuing. and if any such shall be found begging after the day aforesaid, the same shall be taken and put in the stocks on cornhill for half a day the first time, and the second time he shall remain in the stocks one whole day, and the third time he shall be taken and shall remain in prison for forty days and shall then forswear the said city forever. and every constable and the beadle of every ward of the said city shall be empowered to arrest such manner of folks and to put them in the stocks in manner aforesaid." the hundred year cry to "let the king live on his own" found fruition in a statute requiring consent of the parliament before any commission of array for militia could be taken and a statute requiring purchases of goods and means of conveyance for the king and his household to be made only by agreement with the seller and with payment to him before the king traveled on, instead of at the low prices determined unilaterally by the king's purveyor. every man who has wood within the forest may take houseboot [right to take wood for repair of one's house] and heyboot [right to take material for the maintenance of hedges and fences, and the making of farming utensils] in his wood without being arrested so long as it take such within the view of the foresters. no fecal matter, dung, garbage, or entrails of animals killed shall be put into ditches or rivers or other waters, so that maladies and diseases will not be caused by corrupted and infected air. the penalty is s. to the king after trial by the chancellor. gifts or alienation of land to guilds, fraternities, or towns are forbidden. instead, it escheats to its lord, or in his default, to the king. no man will be charged to go out of his county to do military service except in case of an enemy invasion of the nation. men who chose to go into the king's service outside the nation shall be paid wages by the king until their return. admiralty law came into being when ancient naval manners and customs were written down as the "black book of the admiralty". this included the organization of the fleet under the admiral, sea-maneuver rules such as not laying anchor until the admiral's ship had, engagement rules, and the distribution of captured goods: one-fourth to the vessel owner, one-fourth to the king if the seamen were paid by the king's wages, and the rest divided among the crew and admiral. stealing a boat or an anchor holding a boat was punishable by hanging. stealing an oar or an anchor was punishable by forty days imprisonment for the first offense, six months imprisonment for the second, and hanging for the third. desertion was punishable by loss of double the amount of wages earned and imprisonment for one year. cases were tried by jury in the admiral's court. wines, vinegar, oil and honey imported shall be gauged by the king's appointees. judicial procedure the office of justice of the peace was developed and filled by knights, esquires and gentlemen who were closely associated with the magnates. there was no salary nor any requirement of knowledge of the law. they were to pursue, restrain, arrest, imprison, try, and duly punish felons, trespassers, and rioters according to the law. they were expected to arrest vagrants who would not work and imprison them until sureties for good behavior was found for them. they also were empowered to inspect weights and measures. the writ of trespass developed into three kinds according to the type of injury: to person, land, or chattels. trespass included forcible offenses of assault and battery, false imprisonment, breaking of a fence enclosing private property, and taking away goods and chattels. the action of trespass was replacing private suits for murder and for personal injury. pardons may be given only for slaying another in one's own defense or by misfortune [accident], and not for slaying by lying in wait, assault, or malice aforethought. justices of assize, sheriffs, and justices of the peace and mayors shall have power to inquire of all vagabonds and compel them to find surety of their good bearing or be imprisoned. a reversioner shall be received in court to defend his right when a tenant for a term of life, tenant in dower, or by curtesy of the nation, or in [fee] tail after possibility of issue extinct are sued in court for the land, so as to prevent collusion by the demandants. a person in debt may not avoid his creditors by giving his tenements or chattels to his friends in collusion to have the profits at his will. where there was a garnishment given touching a plea of land, a writ of deceit is also maintainable. actions of debt will be heard only in the county where the contract was made. the action of debt includes enforcement of contracts executed or under seal, e.g. rent due on a lease, hire of an archer, contract of sale or repair of an item. thus there is a growing connection between the actions of debt and contract. executors have an action for trespass to their testators' goods and chattels in like manner as did the testator when alive. if a man dies intestate, his goods shall be administered by his next and most lawful friends appointed. such administrators shall have the same powers and duties as executors and be accountable as are executors to the ecclesiastical court. children born to english parents in parts beyond the sea may inherit from their ancestors in the same manner as those born in the nation. a person grieved by a false oath in a town court proceeding may appeal to the king's bench or common pleas, regardless of any town franchise. it was exceptional for the king to sit on the court of the king's bench, which worked independently of the king and became confined to the established common law. the court of common pleas had three types of jurisdiction: ) common law jurisdiction between person and person, including actions regarding land, which was exclusive, ) personal actions of debt, detinue, account and covenant, and ) mixed actions, both personal and regarding land, e.g. ejectment. it had shared jurisdiction with the court of the king's bench in maintenance, conspiracy, other breaches of statute, trespass, trespass on the case, and their derivatives. most of its business had to do with recovery of debt, from s. to thousands of pounds. the king's bench and common pleas courts vied with each other for cases in order to get more profits of justice. grand juries were summoned by the sheriff to decide whether, on the evidence of the prosecution, there was a case to go to trial. the petty or trial jury heard all parties to a lawsuit and determined the facts. in a statute required that no member of a grand jury could sit on a petty jury if so challenged by the accused. decisions of the common law courts are appealable to the house of lords. the king's council members who are not peers, in particular the justices and the masters of the chancery, are summoned by the house of lords only as mere assistants. parliament may change the common law by statute. the right of a peer to be tried for capital crimes by a court composed of his peers was established. there was a widespread belief that all the peers are by right the king's councilors. no attorney may practice law and also be a justice of assize. no justice may take any gift except from the king nor give counsel to any litigant before him. in , there was a statute against maintainers, instigators, barretors, procurers, and embracers of quarrels and inquests because of great and outrageous oppressions of parties in court. because this encouraged maintenance by the retinue of lords with fees, robes, and other liveries, such maintainers were to be put out of their lords' service, and could not be retained by another lord. no one was to give livery to anyone else, except household members and those retained for life for peace or for war. justices of the peace were authorized to inquire about yeomen, or other of lower estate than squire, bearing livery of any lord. whereas it is contained in the magna carta that none shall be imprisoned nor put out of his freehold, nor of his franchises nor free custom, unless it be by the law of the land; it is established that from henceforth none shall be taken by petition or suggestion made to the king unless by indictment of good and lawful people of the same neighborhood where such deeds be done, in due manner, or by process made by writ original at the common law; nor that none be out of his franchise, nor of his freeholds, unless he be duly brought into answer and before judges of the same by the course of law. the chancery came to have a separate and independent equitable jurisdiction. it heard petitions of misconduct of government officials or of powerful oppressors, fraud, accident, abuse of trust, wardship of infants, dower, and rent charges. because the common law and its procedures had become technical and rigid, the chancery was given equity jurisdiction by statute in . king edward iii proclaimed that petitions for remedies that the common law didn't cover be addressed to the chancellor, who was not bound by established law, but could do equity. in chancery, if there is a case that is similar to a case for which there is a writ, but is not in technical conformity with the requirements of the common law for a remedy, then a new writ may be made for that case by the chancellor. these were "actions on the case". also, parliament may create new remedies. there were so many cases that were similar to a case with no remedy specified in the common law, that litigants were flowing into the chancery. the chancellor gave swift and equitable relief, which was summary. the chancery court had no jury. with the backing of the council, the chancellor made decisions implementing the policy of the statute of laborers. most of these concerned occupational competency, for instance negligent activity of carriers, builders, shepherds, doctors, cloth workers, smiths, innkeepers, and gaolers. for instance, the common law action of detinue could force return of cloth bailed for fulling or sheep bailed for pasturing, but could not address damages due to faulty work. the chancellor addressed issues of loss of wool, dead lambs, and damaged sheep, as well as dead sheep. he imposed a legal duty on innkeepers to prevent injury or damage to a patron or his goods from third parties. a dog bite or other damage by a dog known by its owner to be vicious was made a more serious offense than general damage by any dog. a person starting a fire was given a duty to prevent the fire from damaging property of others. the king will fine instead of seize the land of his tenants who sell or alienate their land, such fine to be determined by the chancellor by due process. the chancery is now a court side by side with the common law courts of common pleas, king's bench, and exchequer. only barons who were peers of the house of lords were entitled to trial in the house of lords. in practice, however, this pertained only to major crimes. treason was tried by the lords in parliament, by bill of "attainder". it was often used for political purposes. most attainders were reversed as a term of peace made between competing factions. attorneys presided over manorial courts and made decisions with or without the villeins in attendance based on the custom of the manor. the king's coroner and a murderer who had taken sanctuary in a church often agreed to the penalty of confession and perpetual banishment from the nation as follows: "memorandum that on july , [ ], henry de roseye abjured the realm of england before john bernard, the king's coroner, at the church of tendale in the county of kent in form following: 'hear this, o lord the coroner, that i, henry de roseye, have stolen an ox and a cow of the widow of john welsshe of retherfeld; and i have stolen eighteen beasts from divers men in the said county. and i acknowledge that i have feloniously killed roger le swan in the town of strete in the hundred of strete in the rape [a division of a county] of lewes and that i am a felon of the lord king of england. and because i have committed many ill deeds and thefts in his land, i abjure the land of the lord edward king of england, and [i acknowledge] that i ought to hasten to the port of hastings, which thou hast given me, and that i ought not to depart from the way, and if i do so i am willing to be taken as a thief and felon of the lord king, and that at hastings i will diligently seek passage, and that i will not wait there save for the flood and one ebb if i can have passage; and if i cannot have passage within that period, i will go up to the knees into the sea every day, endeavoring to cross; and unless i can do so within forty days, i will return at once to the church, as a thief and a felon of the lord king, so help me god." property damage by a tenant of a london building was assessed in a case: "john parker, butcher, was summoned to answer clement spray in a plea of trespass, wherein the latter complained that the said john, who had hired a tavern at the corner of st. martin- le-grand from him for fifteen months, had committed waste and damage therein, although by the custom of the city no tenant for a term of years was entitled to destroy any portion of the buildings or fixtures let to him. he alleged that the defendant had taken down the door post of the tavern and also of the shop, the boarded door of a partition of the tavern, a seat in the tavern, a plastered partition wall, the stone flooring in the chamber, the hearth of the kitchen, and the mantelpiece above it, a partition in the kitchen, two doors and other partitions, of a total value of s. four pounds, s. d., and to his damage, s. [ pounds]. the defendant denied the trespass and put himself on the country. afterwards a jury [panel]... found the defendant guilty of the aforesaid trespass to the plaintiff's damage, d. judgment was given for that amount and a fine of s. to the king, which the defendant paid immediately in court." the innkeeper's duty to safeguard the person and property of his lodgers was applied in this case: "john trentedeus of southwark was summoned to answer william latymer touching a plea why, whereas according to the law and custom of the realm of england, innkeepers who keep a common inn are bound to keep safely by day and by night without reduction or loss men who are passing through the parts where such inns are and lodging their goods within those inns, so that, by default of the innkeepers or their servants, no damage should in any way happen to such their guests ... on monday after the feast of the purification of the virgin mary in the fourth year of the now king by default of the said john, certain malefactors took and carried away two small portable chests with s. and also with charters and writings, to wit two writings obligatory, in the one of which is contained that a certain robert bour is bound to the said william in , s. and in the other that a certain john pusele is bound to the same william in s. pounds ... and with other muniments [writings defending claims or rights] of the same william, to wit his return of all the writs of the lord king for the counties of somerset and dorset, whereof the same william was then sheriff, for the morrow of the purification of the blessed mary the virgin in the year aforesaid, as well before the same lord the king in his chancery and in his bench as before the justices of the king's common bench and his barons of his exchequer, returnable at westminster on the said morrow, and likewise the rolls of the court of cranestock for all the courts held there from the first year of the reign of the said lord the king until the said monday, contained in the same chests being lodged within the inn of the same john at southwark and the said john ... says that on the said monday about the second hour after noon the said william entered his inn to be lodged there, and at once when he entered, the same john assigned to the said william a certain chamber being in that inn, fitting for his rank, with a door and a lock affixed to the same door with sufficient nails, so that he should lie there and put and keep his things there, and delivered to the said william the key to the door of the said chamber, which chamber the said william accepted... william says that ... when the said john had delivered to him the said chamber and key as above, the same william, being occupied about divers businesses to be done in the city of london, went out from the said inn into the city to expedite the said businesses and handed over the key of the door to a certain servant of the said william to take care of in meantime, ordering the servant to remain in the inn meanwhile and to take care of his horses there; and afterwards, when night was falling, the same william being in the city and the key still in the keeping of the said servant, the wife of the said john called unto her into her hall the said servant who had the key, giving him food and drink with a merry countenance and asking him divers questions and occupying him thus for a long time, until the staple of the lock of the door aforesaid was thrust on one side out of its right place and the door of the chamber was thereby opened and his goods, being in the inn of the said john, were taken and carried off by the said malefactors ... the said john says ...[that his wife did not call the servant into the hall, but that] when the said servant came into the said hall and asked his wife for bread and ale and other necessaries to be brought to the said chamber of his master, his wife immediately and without delay delivered to the same servant the things for which he asked ... protesting that no goods of the same william in the said inn were carried away by the said john his servant or any strange malefactors other than the persons of the household of the said william." on the coram rege roll of is a case on the issue of whether a court crier can be seized by officers of a staple: "edmund hikelyng, 'crier', sues william baddele and wife maud, john olney, and william knyghtbrugge for assault and imprisonment at westminster, attacking him with a stick and imprisoning him for one hour on wednesday before st. martin, richard ii. baddele says mark faire of winchester was prosecuting a bill of debt for s. against edmund and john more before william brampton, mayor of the staple of westminster, and thomas alby and william askham, constables of the said staple, and on that day the mayor and the constables issued a writ of capias against edmund and john to answer mark and be before the mayor and the constables at the next court. this writ was delivered to baddele as sergeant of the staple, and by virtue of it he took and imprisoned edmund in the staple. maud and the others say they aided baddele by virtue of the said writ. edmund does not acknowledge baddele to be sergeant of the staple or mark a merchant of the staple or that he was taken in the staple. he is minister of the king's court of his bench and is crier under thomas thorne, the chief crier, his master. every servant of the court is under special protection while doing his duty or on his way to do it. on the day in question, he was at westminster carrying his master's staff of office before hugh huls, one of the king's justices, and william took him in the presence of the said justice and imprisoned him. the case is adjourned for consideration from hilary to easter." a law of equity began to be developed from decisions by the chancellor in his court of conscience from around . one such case was that of godwyne v. profyt sometime after . this petition was made to the chancellor: to the most reverend father in god, and most gracious lord, the bishop of exeter, chancellor of england. thomas godwyne and joan his wife, late wife of peter at more of southwerk, most humbly beseech that, whereas at michaelmas in the th year of our most excellent lord king richard who now is, the said peter at more in his lifetime enfeoffed thomas profyt parson of st. george's church southwerk, richard saundre, and john denewey, in a tenement with the appurtenances situated in southwerk and acres of land acres of meadow in the said parish of st. george and in the parish of our lady of newington, on the conditions following, to wit, that the said three feoffees should, immediately after the death of the said peter, enfeoff the said joan in all the said lands and tenements with all their appurtenances for the life of the said joan, with remainder after her decease to one nicholas at more, brother of the said peter, to hold to him and the heirs of his body begotten, and for default of issue, then to be sold by four worthy people of the said parish, and the money to be received for the same to be given to holy church for his soul; whereupon the said peter died. and after his death two of the said feoffees, richard and john, by the procurement of one john solas, released all their estate in the said lands and tenements to the said thomas profyt, on the said conditions, out of the great trust that they had in the said thomas profyt, who was their confessor, that he would perform the will of the said peter [at more] in the form aforesaid; and this well and lawfully to do the said thomas profyt swore on his verbum dei and to perform the said conditions on all points. and since the release was so made, the said thomas profyt, through the scheming and false covin of the said john solas, has sold all the lands and tenements aforesaid to the same john solas for ever. and the said john solas is bound to the said thomas profyt in pounds by a bond to make defense of the said lands and tenements by the bribery and maintenance against every one; and so by their false interpretation and conspiracy the said joan, nicholas, and holy church are like to be disinherited and put out of their estate and right, as is abovesaid, for ever, tortiously, against the said conditions, and contrary to the will of the said peter [at more]. may it please your most righteous lordship to command the said thomas profyt, richard saundre, and john denewy to come before you, and to examine them to tell the truth of all the said matter, so that the said joan, who has not the wherewithal to live, may have her right in the said lands and tenements, as by the examination before you, most gracious lord, shall be found and proved; for god and in way of holy charity. chapter the times: - this period, which begins with the reign of the usurper king, henry iv, is dominated by war: the last half of the year war with france, which, with the help of joan of arc, took all english land on the continent except the port of calais, and the war of the roses over the throne in england. the ongoing border fights with wales and scotland were fought by england's feudal army. but for fighting in france, the king paid barons and earls to raise their own fighting forces. when they returned to england, they fought to put their candidate on its throne, which had been unsteady since its usurpation by henry iv. all the great houses kept bands of armed retainers. these retainers were given land or pay or both as well as liveries [uniforms or badges] bearing the family crest. in the system of "livery and maintenance", if the retainer was harassed by the law or by enemies, the lord protected him. the liveries became the badges of the factions engaged in the war of the roses. the white rose was worn by the supporters of the house of york, and the red rose by supporters of the house of lancaster. great lords fought each other for property and made forcible entries usurping private property. nobles employed men who had returned from fighting in war to use their fighting skill in local defense.henry iv was the last true warrior king. in both wars, the musket was used as well as the longbow. to use it, powder was put into the barrel, then a ball rammed down the barrel with a rod, and then the powder lit by a hot rod held with one hand while the other hand was used to aim the musket. cannon were used to besiege castles and destroy their walls, so many castles were allowed to deteriorate. the existence of cannon also limited the usefulness of town walls for defense. but townspeople did not take part in the fighting. since the power of the throne changed from one faction to another, political and personal vindictiveness gave rise to many bills of attainder that resulted in lords being beheaded and losing their lands to the king. however, these were done by the form of law; there were no secret executions in england. families engaged in blood feuds. roving bands ravaged the country, plundering the people, holding the forests, and robbing collectors of crown revenue. some men made a living by fighting for others in quarrels. individual life and property were insecure. whole districts were in a permanent alarm of riot and robbery. the roads were not safe. there was fighting between lords and gangs of ruffians holding the roads, breaking into and seizing manor houses, and openly committing murders. peace was never well-kept nor was law ever well-executed, though fighting was suspended by agreement during the harvest. local administration was paralyzed by party faction or lodged in some great lord or some clique of courtiers. the elections of members to parliament were interfered with and parliament was rarely held. barons and earls fought their disputes in the field rather than in the royal courts. litigation was expensive, so men relied increasingly on the protection of the great men of their neighborhood and less on the king's courts for the safety of their lives and land. local men involved in court functions usually owed allegiance to a lord which compromised the exercise of justice. men serving in an assize often lied to please their lord instead of telling the truth. lords maintained, supported, or promoted litigation with money or aid supplied to one party to the detriment of justice. it was not unusual for lords to attend court with a great force of retainers behind them. many justices of the peace wore liveries of magnates and accepted money from them. royal justices were flouted or bribed. the king's writ was denied or perverted. for - s., a lord could have the king instruct his sheriff to impanel a jury which would find in his favor. a statute against riots, forcible entries, and, excepting the king, magnates' liveries of uniform, food, and badges to their retainers, except in war outside the nation, was passed, but was difficult to enforce because the offenders were lords, who dominated the parliament and the council. with men so often gone to fight, their wives managed the household alone. the typical wife had maidens of equal class to whom she taught household management, spinning, weaving, carding wool with iron wool-combs, heckling flax, embroidery, and making garments. there were foot-treadles for spinning wheels. she taught the children. each day she scheduled the activities of the household including music, conversation, dancing, chess, reading, playing ball, and gathering flowers. she organized picnics, rode horseback and went hunting, hawking to get birds, and hare-ferreting. she was nurse to all around her. if her husband died, she usually continued to manage the household because most men named their wife as executor of their will with full power to act as she thought best. the wives of barons shared their right of immunity from arrest by the processes of common law and to be tried by their peers. for ladies, close-fitting jackets came to be worn over close- fitting long gowns with low, square-cut necklines and flowing sleeves, under which was worn a girdle or corset of stout linen reinforced by stiff leather or even iron. her skirt was provocatively slit from knee to ankle. all her hair was confined by a hair net. headdresses were very elaborate and heavy, trailing streamers of linen. some were in the shape of hearts, butterflies, crescents, double horns, steeples, or long cones. men also wore hats rather than hoods. they wore huge hats of velvet, fur, or leather. their hair was cut into a cap-like shape on their heads, and later was shoulder-length. they wore doublets with thick padding over the shoulders or short tunics over the trucks of their bodies and tightened at the waist to emphasize the shoulders. their collars were high. their sleeves were long concoctions of velvet, damask, and satin, sometimes worn wrapped around their arms in layers. their legs and hips were covered with hosen, often in different colors. codpieces worn between the legs emphasized the sensuality of the age as did ladies' tight and low- cut gowns. men's shoes were pointed with upward pikes at the toes that impeded walking. at another time, their shoes were broad with blunt toes. both men and women wore much jewelry and ornamentation. but, despite the fancy dress, the overall mood was a macabre preoccupation with mortality, despair, and a lack of confidence in the future. cannon and mercenaries had reduced the military significance of knighthood, so its chivalric code deteriorated into surface politeness, ostentation, and extravagance. master and servants ceased to eat together in the same hall, except for great occasions, on feast days, and for plays. the lord, and his lady, family, and guests took their meals in a great chamber, usually up beneath the roof next to the upper floor of the great hall. the chimney-pieces and windows were often richly decorated with paneled stonework, tracery and carving. there was often a bay or oriel window with still expensive glass. tapestries, damask, and tablecloths covered the tables. the standard number of meals was three: breakfast, dinner, and supper. there was much formality and ceremonial ritual, more elaborate than before, during dinners at manorial households, including processions bringing and serving courses, and bowing, kneeling, and curtseying. there were many courses of a variety of meats, fish, stews, and soups, with a variety of spices and elaborately cooked. barons, knights, and their ladies sat to the right of the lord above the salt and were served by the lord's sewer [served the food] and carver and gentlemen waiters; their social inferiors such as "gentlemen of worship" sat below the salt and were served by another sewer and yeomen. the lord's cupbearer looked after the lord alone. a knights' table was waited on by yeomen. the gentlemen officers, gentlemen servants and yeomen officers were waited on by their own servants. the amount of food dished out to each person varied according to his rank. the almoner said grace and distributed the leftovers to the poor gathered at the gate. the superior people's hands were washed by their inferiors. lastly, the trestle tables were removed while sweet wine and spices were consumed standing. then the musicians were called into the hall and dancing began. the lord usually slept in a great bed in this room. the diet of an ordinary family such as that of a small shopholder or yeoman farmer included beef, mutton, pork, a variety of fish, both fresh and salted, venison, nuts, peas, oatmeal, honey, grapes, apples, pears, and fresh vegetables. cattle and sheep were driven from wales to english markets. this droving lasted for five centuries. many types of people besides the nobility and knights now had property and thus were considered gentry: female lines of the nobility, merchants and their sons, attorneys, auditors, squires, and peasant-yeomen. the burgess grew rich as the knight dropped lower. the great merchants lived in mansions which could occupy whole blocks. in towns these mansions were entered through a gate through a row of shops on the street.typically, there would be an oak-paneled great hall, with adjoining kitchen, pantry, and buttery on one end and a great parlor to receive guests, bedrooms, wardrobes, servants' rooms, and a chapel on the other end or on a second floor. a lesser dwelling would have these rooms on three floors over a shop on the first floor. an average londoner would have a shop, a storeroom, a hall, a kitchen, and a buttery on the first floor, and three bedrooms on the second floor. artisans and shopkeepers of more modest means lived in rows of dwellings, each with a shop and small storage room on the first floor, and a combination parlor-bedroom on the second floor. the humblest residents crowded their shop and family into one by foot room for rent of a few shillings a year. all except the last would also have a small garden. the best gardens had a fruit tree, herbs, flowers, a well, and a latrine area. there were common and public privies for those without their own. kitchen slops and casual refuse continued to be thrown into the street. floors of stone or planks were strewn with rushes. there was some tile flooring. most dwellings had glass windows. candles were used for lighting at night. torches and oil-burning lanterns were portable lights. furnishings were still sparse. men sat on benches or joint stools and women sat on cushions on the floor. hall and parlor had a table and benches and perhaps one chair. bedrooms had beds that were surrounded by heavy draperies to keep out cold drafts. the beds had pillows, blankets, and sheets. clothes were stored in a chest, sometimes with sweet-smelling herbs such as lavender, rosemary, and southernwood. better homes had wall hanging and cupboards displaying plate. laundresses washed clothes in the streams, rivers, and public conduits. country peasants still lived in wood, straw, and mud huts with earth floors and a smoky hearth in the center or a kitchen area under the eaves of the hut. in , bricks began to be manufactured in the nation and so there was more use of bricks in buildings. chimneys were introduced into manor houses where stone had been too expensive. this was necessary if a second floor was added, so the smoke would not damage the floor above it and would eventually go out of the house. nobles and their retinue moved from manor to manor, as they had for centuries, to keep watch upon their lands and to consume the produce thereof; it was easier to bring the household to the estate than to transport the yield of the estate to the household. also, at regular intervals sewage had to be removed from the cellar pits. often a footman walked or ran on foot next to his master or mistress when they rode out on horseback or in a carriage. he was there primarily for prestige. jousting tournaments were held for entertainment purposes only and were followed by banquets of several courses of food served on dishes of gold, silver, pewter, or wood on a linen cloth covering the table. hands were washed before and after the meal. people washed their faces every morning after getting up. teeth were cleaned with powders. fragrant leaves were chewed for bad breath. garlic was used for indigestion and other ailments. feet were rubbed with salt and vinegar to remove calluses. good manners included not slumping against a post, fidgeting, sticking one's finger into one's nose, putting one's hands into one's hose to scratch the privy parts, spitting over the table or too far, licking one's plate, picking one's teeth, breathing stinking breath into the face of the lord, blowing on one's food, stuffing masses of bread into one's mouth, scratching one's head, loosening one's girdle to belch, and probing one's teeth with a knife. fishing and hunting were reserved for the nobility rather than just the king. as many lords became less wealthy because of the cost of war, some peasants, villein and free, became prosperous, especially those who also worked at a craft, e.g. butchers, bakers, smiths, shoemakers, tailors, carpenters, and cloth workers. an agricultural slump caused poorer soils to fall back into waste. the better soils were leased by peasants, who, with their families, were in a better position to farm it than a great lord, who found it hard to hire laborers at a reasonable cost. further, peasants' sheep, hens, pigs, ducks, goats, cattle, bees, and crop made them almost self-sufficient in foodstuffs. they lived in a huddle of cottages, pastured their animals on common land, and used common meadows for haymaking. they subsisted mainly on boiled bacon, an occasional chicken, worts and beans grown in the cottage garden, and cereals. they wore fine wool cloth in all their apparel. brimless hats were replacing hoods. they had an abundance of bed coverings in their houses. and they had more free time. village entertainment included traveling jesters, acrobats, musicians, and bear-baiters. playing games and gambling were popular pastimes. most villeins were now being called "customary tenants" or "copy- holders" of land because they held their acres by a copy of the court-roll of the manor, which listed the number of teams, the fines, the reliefs, and the services due to the lord for each landholder. the chancery court interpreted many of these documents to include rights of inheritance. the common law courts followed the lead of the chancery and held that marriage land could be inherited as was land at common law. evictions by lords decreased. the difference between villein and freeman lessened but landlords usually still had profits of villein bondage, such as heriot, merchet, and chevage. social mobility was most possible in the towns, where distinctions were usually only of wealth. so a poor apprentice could aspire to become a master, a member of the livery of his company, a member of the council, an alderman, a mayor, and then an esquire for life. the distance between baron and a country knight and between a yeoman and knight was wider. manor custom was strong. but a yeoman could give his sons a chance to become gentlemen by entering them in a trade in a town, sending them to university, or to war. every freeman was to some extent a soldier, and to some extent a lawyer, serving in the county or borough courts. a burgess, with his workshop or warehouse, was trained in warlike exercises, and he could keep his own accounts, and make his own will and other legal documents, with the aid of a scrivener or a chaplain, who could supply an outline of form. but law was growing as a profession. old-established london families began to choose the law as a profession for their sons, in preference to an apprenticeship in trade. many borough burgesses in parliament were attorneys. a class of laborers was arising who depended entirely on the wages of industry for their subsistence. the cloth workers in rural areas were isolated and weak and often at the mercy of middlemen for employment and the amount of their wages. when rural laborers went to towns to seek employment in the new industries, they would work at first for any rate. this deepened the cleavage of the classes in the towns. the artificers in the town and the cottagers and laborers in the country lived from hand to mouth, on the edge of survival, but better off than the old, the diseased, the widows, and the orphans. however, the s were the most prosperous time for laborers considering their wages and the prices of food. meat and poultry were plentiful and grain prices low. in london, shopkeepers appealed to passersby to buy their goods, sometimes even seizing people by the sleeve. the drapers had several roomy shops containing shelves piled with cloths of all colors and grades, tapestries, pillows, blankets, bed draperies, and "bankers and dorsers" to soften hard wooden benches. a rear storeroom held more cloth for import or export. many shops of skinners were on fur row. there were shops of leather sellers, hosiers, gold and silver cups, and silks. at the stocks market were fishmongers, butchers, and poulterers. london grocers imported spices, canvas, ropery, potions, unguents, soap, confections, garlic, cabbages, onions, apples, oranges, almonds, figs, dates, raisins, dyestuffs, woad, madder (plant for medicine and dye), scarlet grains, saffron, iron, and a primitive steel. they were retailers as well as wholesalers and had shops selling honey, licorice, salt, vinegar, rice, sugar loaves, syrups, spices, garden seeds, dyes, alum, soap, brimstone, paper, varnish, canvas, rope, musk, incense, treacle of genoa, and mercury. the grocers did some money lending, usually at % interest. the guilds did not restrict themselves to dealing in the goods for which they had a right of inspection, and so many dealt in wine that it was a medium of exchange. there was no sharp distinction between retail and wholesale trading. london grocers sold herbs for medicinal as well as eating purposes. breadcarts sold penny wheat loaves. foreigners set up stalls on certain days of the week to sell meat, canvas, linen, cloth, ironmongery, and lead. there were great houses, churches, monasteries, inns, guildhalls, warehouses, and the king's beam for weighing wool to be exported. in , the guildhall of london was built through contributions, proceeds of fines, and lastly, to finish it, special fees imposed on apprenticeships, deeds, wills, and letters-patent. the mercers and goldsmiths were in the prosperous part of town. the goldsmiths' shops sold gold and silver plate, jewels, rings, water pitchers, drinking goblets, basins to hold water for the hands, and covered saltcellars. the grain market was on cornhill. halfway up the street, there was a supply of water which had been brought up in pipes. on the top of the hill was a cage where riotous folk had been incarcerated by the night watch and the stocks and pillory, where fraudulent schemers were exposed to ridicule. no work was to be done on sundays, but some did work surreptitiously. the barbers kept their shops open in defiance of the church. outside the london city walls were tenements, the smithfield cattle market, westminster hall, green fields of crops, and some marsh land. on the thames river to london were large ships with cargoes; small boats rowed by tough boatmen offering passage for a penny; small private barges of great men with carved wood, gay banners, and oarsmen with velvet gowns; the banks covered with masts and tackle; the nineteen arch london bridge supporting a street of shops and houses and a drawbridge in the middle; quays; warehouses, and great cranes lifting bales from ship to wharf. merchant guilds which imported or exported each had their own wharves and warehouses. downstream, pirates hung on gallows at the low-water mark to remain until three tides had overflowed their bodies. a climate change of about / degree celcius lower caused the thames to regularly freeze over in winter. the large scale of london trade promoted the specialization of the manufacturer versus the merchant versus the shipper. merchants had enough wealth to make loans to the government or for new commercial enterprises. local reputation on general, depended upon a combination of wealth, trustworthiness of character, and public spirit; it rose and fell with business success. some london merchants were knighted by the king. many bought country estates thereby turning themselves into gentry. the king granted london all common soils, improvements, wastes, streets, and ways in london and in the adjacent waters of the thames river and all the profits and rents to be derived therefrom. later the king granted london the liberty to purchase lands and tenements worth up to , s. yearly. with this power, london had obtained all the essential features of a corporation: a seal, the right to make by-laws, the power to purchase lands and hold them "to them and their successors" (not simply their heirs, which is an individual and hereditary succession only), the power to sue and be sued in its own name, and the perpetual succession implied in the power of filling up vacancies by election. since these powers were not granted by charters, london is a corporation by prescription. in , the liverymen obtained the right with the council to elect the mayor, the sheriff, and certain other corporate officers. many boroughs sought and obtained formal incorporation with the same essential features as london. this tied up the loose language of their early charters of liberties. often, a borough would have its own resident justice of the peace. each incorporation involved a review by a justice of the peace to make sure the charter of incorporation rule didn't conflict with the law of the nation. a borough typically had a mayor accompanied by his personal sword- bearer and serjeants-at-mace bearing the borough regalia, bailiffs, a sheriff, and chamberlains or a steward for financial assistance. at many boroughs, aldermen, assisted by their constables, kept the peace in their separate wards. there might be coroners, a recorder, and a town clerk, with a host of lesser officials including beadles [a messenger of a court], aletasters, sealers, searchers [inspectors], weighers and keepers of the market, ferrymen and porters, clock-keepers and criers [cries out public announcements through the streets], paviors [maintained the roads], scavengers and other street cleaners, gatekeepers and watchmen of several ranks and kinds. a wealthy borough would have a chaplain and two or three minstrels. the mayor replaced the bailiffs as the chief magistracy. in all towns, the wealthiest and most influential guilds were the merchant traders of mercers, drapers, grocers, and goldsmiths. from their ranks came most of the mayors, and many began to intermarry with the country knights and gentry. next came the shopholders of skinners, tailors, ironmongers, and corvisors [shoemakers]. thirdly came the humbler artisans, the sellers of victuals, small shopkeepers, apprentices, and journeymen on the rise. lastly came unskilled laborers, who lived in crowded tenements and hired themselves out. the first three groups were the free men who voted, paid scot and bore lot, and belonged to guilds. scot was a ratable proportion in the payments levied from the town for local or national purposes. merchant guilds in some towns merged their existence into the town corporation, and their guild halls became the common halls of the town, and their property became town property. in london, the cutlers' company was chartered in , the haberdashers' company in , the grocers' company in , the drapers' and cordwainers' companies in , the vintners' and brewers' companies in , the leathersellers' company in , the girdlers' company in , the armourers' and brassiers' companies in , the barbers' company in , the tallow chandlers' company in , the ironmongers' company in , the dyers' company in , the musicians' company in , the carpenters' company in , the cooks' company in , and the waxchandlers' company in . the fishmongers, which had been chartered in , were incorporated in , the cordwainers in , and the pewterers in . there were craft guilds in the towns, at least in london. in fact, every london trade of twenty men had its own guild. the guild secured good work for its members and the members maintained the reputation of the work standards of the guild. bad work was punished and night work prohibited as leading to bad work. the guild exercised moral control over its members and provided sickness and death benefits for them. there was much overlapping in the two forms of association: the craft guild and the religious fraternity. apprentices were taken in to assure an adequate supply of competent workers for the future. the standard indenture of an apprentice bound him to live in his master's house; serve him diligently; obey reasonable commands; keep his master's secrets; protect him from injury; abstain from dice, cards and haunting of taverns; not marry; commit no fornication, and not absent himself without permission. in return the master undertook to provide the boy or girl with bed, board, and lodging and to instruct him or her in the trade, craft, or mystery. when these apprentices had enough training they were made journeymen with a higher rate of pay. journeymen traveled to see the work of their craft in other towns. those journeymen rising to master had the highest pay rate. occupations free of guild restrictions included horse dealers, marbelers, bookbinders, jewelers, organ makers, feathermongers, pie makers, basket makers, mirrorers, quilters, and parchment makers. non-citizens of london could not be prevented from selling leather, metalwares, hay, meat, fruit, vegetables, butter, cheese, poultry, and fish from their boats, though they had to sell in the morning and sell all their goods before the market closed. in the towns, many married women had independent businesses and wives also played an active part in the businesses of their husbands. wives of well-to-do london merchants embroidered, sewed jewelry onto clothes, and made silk garments. widows often continued in their husband's businesses, such as managing a large import-export trade, tailoring, brewing, and metal shop. socially lower women often ran their own breweries, bakeries, and taverns. it was possible for wives to be free burgesses in their own right in some towns. some ladies were patrons of writers. some women were active in prison reform in matters of reviews to insure that no man was in gaol without due cause, overcharges for bed and board, brutality, and regulation of prisoners being placed in irons. many men and women left money in their wills for food and clothing for prisoners, especially debtors. wills often left one-third of the wealth to the church, the poor, prisoners, infirmaries, young girls' education; road, wall, and bridge repair; water supply, markets and almshouses. some infirmaries were for the insane, who were generally thought to be possessed by the devil or demons. their treatment was usually by scourging the demons out of their body by flogging. if this didn't work, torture could be used to drive the demons from the body. the guilds were being replaced by associations for the investment of capital. in associations, journeymen were losing their chance of rising to be a master. competition among associations was starting to supplant custom as the mainspring of trade. the cloth exporters, who were mostly mercers, were unregulated and banded together for mutual support and protection under the name of merchant adventurers of london. the merchant adventurers was chartered in . it was the first and a prototype of regulated companies. that is the company regulated the trade. each merchant could ship on his own a certain number of cloths each year, the number depending on the length of his membership in the company. he could sell them himself or by his factor at the place where the company had privileges of market. strict rules governed the conduct of each member. he was to make sales only at certain hours on specified days. all disagreements were to be settled by the company's governor, or his deputy in residence, and those officials dealt with such disputes as arose between members of the company and continental officials and buyers. a share in the ownership of one of their vessels was a common form of investment by prosperous merchants. by , the merchant adventurers were dealing in linen cloths, buckrams [a stiffened, coarse cloth], fustians [coarse cloth made of cotton threads going in one direction and linen threads the other], satins, jewels, fine woolen and linen wares, threads, potions, wood, oil, wine, salt, copper, and iron. they began to replace trade by alien traders. the history of the "merchant adventurers" was associated with the growth of the mercantile system for more than years. it eventually replaced the staples system. paved roads in towns were usually gravel and sometimes cobble. they were frequently muddy because of rain and spillage of water being carried. iron-shod wheels and overloaded carts made them very uneven. london was the first town with paviors. they cleaned and repaired the streets, filling up potholes with wood chips and compacting them with hand rams. the paviors were organized as a city company in . about , towns besides london began appointing salaried road paviors to repair roads and collect their expenses from the householders because the policy of placing the burden on individual householders didn't work well. london streets were lighted at night by public lanterns, under the direction of the mayor. the residents were to light these candle lanterns in winter from dusk to the p.m. curfew. there were fire-engines composed of a circular cistern with a pump and six feet of inflexible hose on wheels pulled by two men on one end and pushed by two men on the other end. in the city walls were rebuilt with a weekly tax of d. per head. in schools, there was a renaissance of learning from original sources of knowledge written in greek and rebirth of the greek pursuit of the truth and scientific spirit of inquiry. there was a striking increase in the number of schools founded by wealthy merchants or town guilds. every cathedral, monastery, and college had a grammar school. merchants tended to send their sons to private boarding schools, instead of having them tutored at home as did the nobility. well-to-do parents still sent sons to live in the house of some noble to serve them as pages in return for being educated with the noble's son by the household priest. they often wore their master's coat of arms and became their squires as part of their knightly education. sometimes girls were sent to live in another house to receive education from a tutor there under the supervision of the lady of the house. every man, free or villein, could send his sons and daughters to school. in every village, there were some who could read and write. in , lincoln's inn required barristers normally resident in london and the county of middlesex to remain in residence and pay commons during the periods between sessions of court and during vacations, so that the formal education of students would be continuous. in , a similar requirement was extended to all members. the book "sir gawain and the green knight" was written about an incident in the court of king arthur and queen guenevere in which a green knight challenges arthur's knights to live up to their reputation for valor and awesome deeds. the knight gawain answers the challenge, but is shown that he could be false and cowardly when death seemed to be imminent. thereafter, he wears a green girdle around his waist to remind him not to be proud. other literature read included "london lickpenny", a satire on london and its expensive services and products, "fall of princes" by john lydgate, social history by thomas hoccleve, "the cuckoo and the nightengale", and "the flower and leaf" on morality as secular common sense. king james i of scotland wrote a book about how he fell in love. chaucer, cicero, ovid, and aesops's fables were widely read. malory's new version of the arthurian stories was popular. margery kempe wrote the first true autobiography. she was a woman who had a normal married life with children, but one day had visions and voices which led her to leave her husband to take up a life of wandering and praying in holy possession. there were religious folk ballads such as "the cherry tree carol", about the command of jesus from mary's womb for a cherry tree to bend down so that mary could have some cherries from it. the common people developed ballads, e.g. about their love of the forest, their wish to hunt, and their hatred of the forest laws. about % of londoners could read english. books were bought in london in such quantities by that the craft organizations of text-letter writers, illuminators, bookbinders, and book sellers was sanctioned by ordinance. "unto the honorable lords, and wise, the mayor and aldermen of the city of london, pray very humbly all the good folks, freemen of the said city, of the trades of writers of text-letter, limners [illuminator of books], and other folks of london who are wont to bind and to sell books, that it may please your great sagenesses to grant unto them that they may elect yearly two reputable men, the one a limner, the other a text- writer, to be wardens of the said trades, and that the names of the wardens so elected may be presented each year before the mayor for the time being, and they be there sworn well and diligently to oversee that good rule and governance is had and exercised by all folks of the same trades in all works unto the said trades pertaining, to the praise and good fame of the loyal good men of the said trades and to the shame and blame of the bad and disloyal men of the same. and that the same wardens may call together all the men of the said trades honorably and peacefully when need shall be, as well for the good rule and governance of the said city as of the trades aforesaid. and that the same wardens, in performing their due office, may present from time to time all the defaults of the said bad and disloyal men to the chamberlain at the guildhall for the time being, to the end that the same may there, according to the wise and prudent discretion of the governors of the said city, be corrected, punished, and duly redressed. and that all who are rebellious against the said wardens as to the survey and good rule of the same trades may be punished according to the general ordinance made as to rebellious persons in trades of the said city [fines and imprisonment]. and that it may please you to command that this petition, by your sagenesses granted, may be entered of record for time to come, for the love of god and as a work of charity." gutenberg's printing press, which used movable type of small blocks with letters on them, was brought to london in by a mercer: william caxton. it supplemented the text-writer and monastic copyist. it was a wood and iron frame with a mounted platform on which were placed small metal frames into which words with small letters of lead had been set up. each line of text had to be carried from the type case to the press. beside the press were pots filled with ink and inking balls. when enough lines of type to make a page had been assembled on the press, the balls would be dipped in ink and drawn over the type. then a sheet of paper would be placed on the form and a lever pulled to press the paper against the type. linen usually replaced the more expensive parchment for the book pages. the printing press made books more accessible to all literate people. caxton printed major english texts and some translations from french and latin. he commended different books to various kinds of readers, for instance, for gentlemen who understand gentleness and science, or for ladies and gentlewomen, or to all good folk. there were many cook books in use. there were convex eyeglasses for reading and concave ones for distance to correct near-sightedness. the first public library in london was established from a bequest in a will in . many carols were sung at the christian festival of christmas. ballads were sung on many features of social life of this age of disorder, hatred of sheriffs, but faith in the king. the legend of robin hood was popular, as were town miracle plays on leading incidents of the bible and morality plays. vintners portrayed the miracle of cana where water was turned into wine and goldsmiths ornately dressed the three kings coming from the east. in york, the building of noah's ark was performed by the shipwrights and the flood performed by the fishery and mariners. short pantomimes and disguising, forerunners of costume parties, were good recreation. games of cards became popular as soon as cards were introduced. the king, queen, and jack were dressed in contemporary clothes. men bowled, kicked footballs, and played tennis. in london, christmas was celebrated with masques and mummings. there was a great tree in the main market place and evergreen decorations in churches, houses, and streets. there were also games, dances, street bonfires in front of building doors, and general relaxation of social controls. sometimes there was drunken licentiousness and revelry, with peasants gathering together to make demands of lords for the best of his goods. may day was celebrated with crowns and garlands of spring flowers. the village may day pageant was often presided over by robin hood and maid marion. people turned to mysticism to escape from the everyday violent world. they read works of mystics, such as "scale of perfection" and "cloud of unknowing", the latter describing how one may better know god. they believed in magic and sorcery, but had no religious enthusiasm because the church was engendering more disrespect. monks and nuns had long ago resigned spiritual leadership to the friars; now the friars too lost much of their good reputation. the monks became used to life with many servants such as cooks, butlers, bakers, brewers, barbers, laundresses, tailors, carpenters, and farm hands. the austerity of their diet had vanished. the schedule of divine services was no longer followed by many and the fostering of learning was abandoned. into monasteries drifted the lazy and miserable. nunneries had become aristocratic boarding houses. the practice of taking sanctuary was abused; criminals and debtors sought it and were allowed to overstay the -day restriction and to leave at night to commit robberies. there were numerous chaplains, who were ordained because they received pay from private persons for saying masses for the dead; they had much leisure time for mischief because they had to forego wife and family. church courts became corrupt, but jealously guarded their jurisdiction from temporal court encroachment. peter's pence was no longer paid by the people, so the burden of papal exaction fell wholly on the clergy. but the church was rich and powerful, paying almost a third of the whole taxation of the nation and forming a majority in the house of lords. many families had kinsmen in the clergy. even the lowest cleric or clerk could read and write in latin. people relied on saint's days as reference points in the year, because they did not know dates of the year. but townspeople knew the hour and minute of each day, because clocks driven by a descending weight on a cord were in all towns and in the halls of the well-to-do. this increased the sense of punctuality and lifted standards of efficiency. these weight-driven clocks replaced water clocks, which had a problem of water freezing, and sandclocks, which could measure only small time intervals. a linguistic unity and national pride was developing. london english became the norm and predominated over rural dialects. important news was announced and spread by word of mouth in market squares and sometimes in churches. as usual, traders provided one of the best sources of news; they maintained an informal network of speedy messengers and accurate reports because political changes so affected their ventures. news also came from peddlers, who visited villages and farms to sell items that could not be bought in the local village. these often included scissors, eyeglasses, colored handkerchiefs, calendars, fancy leather goods, watches, and clocks. peddling was fairly profitable because of the lack of competition. but peddlers were often viewed as tramps and suspected of engaging in robbery as well as peddling. a royal post service was established by relays of mounted messengers. the first route was between london and the scottish border, where there were frequent battles for land between the scotch and english. the inland roads from town to town were still rough and without signs. a horseman could make up to miles a day. common carriers took passengers and parcels from various towns to london on scheduled journeys. now the common yeoman could order goods from the london market, communicate readily with friends in london, and receive news of the world frequently. trade with london was so great and the common carrier so efficient in transporting goods that the medieval fair began to decline. first the grocers and then the mercers refused to allow their members to sell goods at fairs. there was much highway robbery. most goods were still transported by boats along the coasts, with trading at the ports. embroidery was exported. imported were timber, pitch, tar, potash [for cloth dying], furs, silk, satin, gold cloth, damask cloth, furred gowns, gems, fruit, spices, and sugar. imports were restricted by national policy for the purpose of protecting native industries. english single-masted ships began to be replaced by two or three masted ships with high pointed bows to resist waves and sails enabling the ship to sail closer to the wind. tuns was the usual carrying capacity. the increase in trade made piracy, even by merchants, profitable and frequent until merchant vessels began sailing in groups for their mutual protection. the astrolabe, which took altitude of sun and stars, was used for navigation. consuls were appointed to assist english traders abroad. henry iv appointed the first admiral of the entire nation and resolved to create a national fleet of warships instead of using merchant ships. in , the war navy had ships. in , portsmouth was fortified as a naval base. henry v issued the orders that formed the basic law of english admiralty and appointed surgeons to the navy and army. for defense of the nation, especially the safeguard of the seas, parliament allotted the king for life, s. for every tun of wine imported and an additional s. for every tun of sweet wine imported. from about , tunnage on wine [tax per tun] and poundage [tax per pound] on merchandise were duties on goods of merchants which were regularly granted by parliament to the king for life for upkeep of the navy. before this time, such duties had been sporadic and temporary. the most common ailments were eye problems, aching teeth, festering ears, joint swelling and sudden paralysis of the bowels. epidemics broke out occasionally in the towns in the summers. the plague swept london in and the nation in , , and . leprosy disappeared. infirmaries were supported by a tax of the king levied on nearby counties. the walls, ditches, gutters, sewers, and bridges on waterways and the coast were kept in repair by laborers hired by commissions appointed by the chancellor. those who benefited from these waterways were taxed for the repairs in proportion to their use thereof. alabaster was sculptured into tombs surmounted with a recumbent effigy of the deceased, and effigies of mourners on the sides. few townsmen choose to face death alone and planned memorial masses to be sung to lift their souls beyond purgatory. chantries were built by wealthy men for this purpose. chemical experimentation was still thought to be akin to sorcery, so was forbidden by king henry iv in . gold was minted into coins: noble, half noble, and farthing. king henry iv lost power to the commons and the lords because he needed revenue from taxes and as a usurper king, he did not carry the natural authority of a king. the commons acquired the right to elect its own speaker. the lords who helped the usurpation felt they should share the natural power of the kingship. the council became the instrument of the lords. also, the commons gained power compared to the nobility because many nobles had died in war. the consent of the commons to legislation became so usual that the justices declared that it was necessary. the commons began to see itself as representative of the entire commons of the realm instead of just their own counties. its members had the freedom to consider and debate every matter of public interest, foreign or domestic, except for church matters. the commons, the poorest of the three estates, established an exclusive right to originate all money grants to the king in . the speaker of the commons announced its money grant to the king only on the last day of the parliamentary session, after the answers to its petitions had been declared, and after the lords had agreed to the money grant. it tied its grants by rule rather than just practice to certain appropriations. for instance, tunnage and poundage were appropriated for naval defenses. wool customs went to the maintenance of calais, a port on the continent, and defense of the nation. it also put the petitions in statutory form, called "bills", to be enacted after consideration and amendment by all without alteration. each house had a right to deliberate in privacy. in the commons, members spoke in the order in which they stood up bareheaded. any member of parliament or either house or the king could initiate a bill. both houses had the power to amend or reject a bill. there were conferences between select committees of both houses to settle their differences. the commons required the appointment of auditors to audit the king's accounts to ensure past grants had been spent according to their purpose. it forced the king's council appointees to be approved by parliament and to be paid salaries. about , kings' councilors were required to take an oath not to accept gifts of land, not to maintain private suits, not to reveal secrets, and not to neglect the king's business. a quorum was fixed and rules made for removal from the council. for the next fifty years, the council was responsible both to the king and to parliament. this was the first encroachment on the king's right to summon, prorogue, or dismiss a parliament at his pleasure, determine an agenda of parliament, veto or amend its bills, exercise his discretion as to which lords he summoned to parliament, and create new peers by letters patent [official public letters]. parliament was affected by the factionalism of the times. the speaker of the commons was often an officer of some great lord. in , the retainers of the barons in parliament were forbidden to bear arms, so they appeared with clubs on their shoulders. when the clubs were forbidden, they came with stones concealed in their clothing. kings created dukes and marquesses to be peers. a duke was given creation money or allowance of pounds a year. a marquess was given pounds. these new positions could not descend to an heiress, unlike a barony or earldom. an earl was given pounds, which probably took the place of his one-third from the county. king henry vi gave the title of viscount to several people; it had an allowance of . pounds and was above baron. it allowed them to be peers. there were about peers. henry vi also began the offices of keeper of the great seal, keeper of the privy seal, chamberlain, steward of the household, to be great offices of state besides chancellor and treasurer. they were members of his council along with the archbishops of canterbury and york and about other members. in king edward iv's reign, the king's retinue had about knights, squires, yeomen, clerks, grooms, and stablemen. the suitable annual expense of the household of the king was , pounds for his retinue of about people, a duke , pounds for about people, a marquess , pounds for about people, an earl , pounds for about people, a viscount , pounds for about people, a baron pounds for about people, a banneret [a knight made in the field, who had a banner] pounds for about people, a knight bachelor pounds for about people, and a squire pounds for about people. of a squire's pounds, about pounds were spent in food, repairs and furniture , on horses, hay, and carriage , on clothes, alms and oblations , wages , livery of dress , and the rest on hounds and the charges of harvest and hay time. many servants of the household of the country gentleman were poor relations. they might by education and accomplishment rise into the service of a baron who could take him to court, where he could make his fortune. barons' households also included steward, chaplains, treasurer, accountants, chamberlain, carvers, servers, cupbearers, pages, and even chancellor. they were given wages and clothing allowances and had meals in the hall at tables according to their degree. the authority of the king's privy seal had become a great office of state which transmitted the king's wishes to the chancery and exchequer, rather than the king's personal instrument for sealing documents. now the king used a signet kept by his secretary as his personal seal. edward iv made the household office of secretary, who had custody the king's signet seal, a public office. the secretary was generally a member of the council. edward iv invented the benevolence, a gift wrung from wealthy subjects. king edward iv introduced an elaborate spy system, the use of the rack to torture people to give information, and other interferences with justice, all of which the tudor sovereigns later used. torture was used to discover facts, especially about coconspirators, rather than to elicit a confession, as on the continent. it was only used on prisoners held in the tower of london involved in state trials and could only be authorized by the king's closest councilors in virtue of the royal prerogative. the rack stretched the supine body by the wrists and legs with increasing agony at the joints until the limbs were dislocated. some victims were permanently crippled by it; others died on it. most told what they knew, often at the very sight of the rack. torture was forbidden in the common law, which favored an accusatorial system, in which the accuser had to prove guilt, rather than an inquisitional system, in which the accused had to prove innocence. edward iv applied martial law to ordinary cases of high treason by extending the jurisdiction of the politically- appointed high constable of england to these cases, thus depriving the accused of trial by jury. he executed many for treason and never restored their forfeited land to their families, as had been the usual practice. king richard iii prohibited the seizure of goods before conviction of felony. he also liberated the unfree villeins on royal estates. it was declared under parliamentary authority that there was a preference for the crown to pass to a king's eldest son, and to his male issue after him. formerly, a man could ascend to the throne through his female ancestry as well. the law the forcible entry statute is expanded to include peaceful entry with forcible holding after the justices arrived and to forcible holding with departure before the justices arrived. penalties are triple damages, fine, and ransom to the king. a forceful possession lasting three years is exempt. by common law, a tenant could not take away buildings or fixtures he built on land because it would be wasteful. this applied to agricultural fixtures, but not to other trade fixtures. also at common law, if a person had enjoyed light next to his property for at least years, no one could build up the adjacent land so that the light would be blocked. women of age fourteen or over shall have livery of their lands and tenements by inheritance without question or difficulty. purposely cutting out another's tongue or putting out another's eyes is a felony, the penalty for which is loss of all property]. no one may keep swans unless he has lands and tenements of the estate of freehold to a yearly value of s., because swans of the king, lords, knights, and esquires have been stolen by yeomen and husbandmen. the wage ceiling for servants is: bailiff of agriculture s. d. per year, and clothing up to s., with meat and drink; chief peasant, a carter, chief shepherd s. and clothing up to s., with meat and drink; common servant of agriculture s., and clothing up to s. d.; woman servant s., and clothing up to s., with meat and drink; infant under fourteen years s., and clothing up to s., with meat and drink. such as deserve less or where there is a custom of less, that lesser amount shall be given. for laborers at harvest time: mower d. with meat and drink or d. without; reaper or carter: d. with or d. without; woman laborer and other laborers: d with and d. without. the ceiling wage rate for craftsmen per day is: free mason or master carpenter d. with meat and drink or d. without; master tiler or slater, rough mason, and mesne [intermediary] carpenter and other artificiers in building d. with meat and drink or d. without; every other laborer d. with meat and drink or d. without. in winter the respective wages were less: mason category: d. with or d. without; master tiler category: d. with or d. without; others: d. with or d. without meat and drink. any servant of agriculture who is serving a term with a master and covenants to serve another man at the end of this term and that other man shall notify the master by the middle of his term so he can get a replacement worker. otherwise, the servant shall continue to serve the first master. no man or woman may put their son or daughter to serve as an apprentice in a craft within any borough, but may send the child to school, unless he or she has land or rent to the value of s. per year.this was because of scarcity of laborers and other servants of agriculture. no laborer may be hired by the week. masons may no longer congregate yearly, because it has led to violation of the statute of laborers. no games may be played by laborers because they lead to [gambling and] murders and robberies. apparel worn must be appropriate to one's status to preserve the industry of agriculture. the following list of classes shows the lowest class, which could wear certain apparel: . -lords - gold cloth, gold corses, sable fur, purple silk . -knights - velvet, branched satin, ermine fur . -esquires and gentlemen with possessions to the value of s. per year, daughters of a person who has possessions to the value of , s. a year damask, silk, kerchiefs up to s. in value. . -esquires and gentlemen with possessions to the yearly value of s. pounds - fur of martron or letuse, gold or silver girdles, silk corse not made in the nation, kerchief up to s. d in value . -men with possessions of the yearly value of s. excluding the above three classes - fustian, bustian, scarlet cloth in grain . -men with possessions under the yearly value of s. excluding the first three classes - black or white lamb fur, stuffing of wool, cotton, or cadas. . -yeomen - cloth up to the value of s., hose up to the value of s., a girdle with silver, kerchief up to d. . -servants of agriculture, laborer, servant, country craftsman - none of the above clothes gowns and jackets must cover the entire trunk of the body, including the private parts. shoes may not have pikes over two inches. every town shall have at its cost a common balance with weights according to the standard of the exchequer. all citizens may weigh goods for free. all cloth to be sold shall be sealed according to this measure. there is a standard bushel of grain throughout the nation. there are standard measures for plain tile, roof tile, and gutter tile throughout the nation. no gold or silver may be taken out of the nation. the price of silver is fixed at s. for a pound, to increase the value of silver coinage, which has become scarce due to its higher value when in plate or masse. a designee of the king will inspect and seal cloth with lead to prevent deceit. cloth may not be tacked together before inspection. no cloth may be sold until sealed. heads of arrows shall be hardened at the points with steel and marked with the mark of the arrowsmith who made it, so they are not faulty. shoemakers and cordwainers may tan their leather, but all leather must be inspected and marked by a town official before it is sold. to prevent deceitful tanning, cordwainers shall not tan leather. tanners who make a notorious default in leather which is found by a cordwainer shall make a forfeiture. defective embroidery for sale shall be forfeited. no fishing net may be fastened or tacked to posts, boats, or anchors, but may be used by hand, so that fish are preserved and vessels may pass. no one may import any articles which could be made in the nation, including silks, bows, woolen cloths, iron and hardware goods, harness and saddlery, except printed books. the following merchandise shall not be brought into the nation already wrought: woolen cloth or caps, silk laces, ribbons, fringes, and embroidery, gold laces, saddles, stirrups, harnesses, spurs, bridles, gridirons, locks, hammers, fire tongs, dripping pans, dice, tennis balls, points, purses, gloves, girdles, harness for girdles of iron steel or of tin, any thing wrought of any treated leather, towed furs, shoes, galoshes, corks, knives, daggers, woodknives, thick blunt needles, sheers for tailors, scissors, razors, sheaths, playing cards, pins, pattens [wooden shoes on iron supports worn in wet weather], pack needles, painted ware, forcers, caskets, rings of copper or of gilt sheet metal, chaffing dishes, hanging candlesticks, chaffing balls, mass bells, rings for curtains, ladles, skimmers, counterfeit felt hat moulds, water pitchers with wide spouts, hats, brushes, cards for wool, white iron wire, upon pain of their forfeiture. one half this forfeiture goes to the king and the other half to the person seizing the wares. no sheep may be exported, because being shorn elsewhere would deprive the king of customs. no wheat, rye, or barley may be imported unless the prices are such that national agriculture is not hurt. clothmakers must pay their laborers, such as carders and spinsters, in current coin and not in pins and girdles and the like. the term "freemen" in the magna carta includes women. the election of a knight from a county to go to parliament shall be proclaimed by the sheriff in the full county so all may attend and none shall be commanded to do something else at that time. election is to be by majority of the votes and its results will be sealed and sent to parliament. electors and electees to parliament must reside in the county or be citizens or burgesses of a borough. to be an elector to parliament, a knight must reside in the county and have a freehold of land or tenements there of the value of at least s. per year, because participation in elections of too many people of little substance or worth had led to homicides, assaults, and feuds. (these "yeomen" were about one sixth of the population. most former electors and every leaseholder and every copyholder were now excluded. those elected for parliament were still gentry chosen by substantial freeholders.) london ordinances forbade placing rubbish or dung in the thames river or any town ditch or casting water or anything else out of a window. the roads were maintained with tolls on carts and horses bringing victuals or grains into the city and on merchandise unloaded from ships at the port. no carter shall drive his cart more quickly when it is unloaded than when it is loaded. no pie bakers shall sell beef pies as venison pies, or make any meat pie with entrails. to assist the poor, bread and ale shall be sold by the farthing. desertion by a soldier is penalized by forfeiture of all land and property. the common law held that a bailee is entitled to possession against all persons except the owner of the bailed property. former justice sir thomas littleton wrote a legal textbook describing tenancies in dower; the tenures of socage, knight's service, serjeanty, and burgage; estates in fee simple, fee tail, and fee conditional; inheritance and alienation of land. for instance, "also, if feoffment be made upon such condition, that if the feoffor pay to the feofee at a certain day, etc., s. forty pounds of money, that then the feoffor may reenter, etc., in this case the feoffee is called tenant in mortgage, ... and if he doth not pay, then the land which he puts in pledge upon condition for the payment of the money is gone from him for ever, and so dead as to the tenant, etc." joint tenants are distinguished from tenants in common by littleton thus: "joint-tenants are, as if a man be seised of certain lands or tenements, etc., and thereof enfeoffeth two, or three, or four, or more, to have and to hold to them (and to their heirs, or letteth to them) for term of their lives, or for term of another's life; by force of which feoffment or lease they are seised, such are joint-tenants. ... and it is to be understood, that the nature of joint-tenancy is, that he that surviveth shall have solely the entire tenancy, according to such estate as he hath, ..." "tenants in common are they that have lands or tenements in fee-simple, fee-tail, or for term of life, etc., the which have such lands and tenements by several title, and not by joint title, and neither of them knoweth thereof his severalty, but they ought by the law to occupy such lands or tenements in common pro indiviso [undivided], to take the profits in common. ...as if a man enfeoff two joint-tenants in fee, and the one of them alien that which to him belongeth to another in fee, now the other joint-tenant and the alienee are tenants in common, because they are in such tenements by several titles, ..." there are legal maxims and customs of ancient origin which have become well established and known though not written down as statutes. some delineated by christopher st. germain in "doctor and student" in are: . -the spouse of a deceased person takes all personal and real chattels of the deceased. . -for inheritance of land, if there are no descendant children, the brothers and sisters take alike, and if there are none, the next blood kin of the whole blood take, and if none, the land escheats to the lord. land may never ascend from a son to his father or mother. . -a child born before espousals is a bastard and may not inherit, even if his father is the husband. . -if a middle brother purchases lands in fee and dies without heirs of his body, his eldest brother takes his lands and not the younger brother. the next possible heir in line is the younger brother, and the next after him, the father's brother. . -for lands held in socage, if the heir is under , the next friend to the heir, to whom inheritance may not descend, shall have the ward of his body and lands until the heir is , at which time the heir may enter. . -for lands held by knight's service, if the heir is under , then the lord shall have the ward and marriage of the heir until the heir is , if male, or (changed to in ), if female. when of age, the heir shall pay relief. by the right of marriage, a lord could give his ward-heirs in marriage to a suitable match. should this match be refused, its value, determined by a judge, was forfeited to the lord. . -a lease for a term of years is a real chattel rather than a free tenement, and may pass without livery of seisin. . -he who has possession of land, though it is by disseisin, has right against all men but against him who has right. . -if a tenant is past due his rent, the lord may distrain his beasts which are on the land. . -all birds, fowls, and wild beasts of the forest and warren are excepted out of the law and custom of property. no property may be had of them unless they are tame. however, the eggs of hawks and herons and the like belong to the man whose land they are on. . if a man steals goods to the value of d., or above, it is felony, and he shall die for it. if it is under the value of d., then it is but petty larceny, and he shall not die for it, but shall be punished at the discretion of the judges. this not apply to goods taken from the person, which is robbery, a felony punishable by death. . if the son is attainted [convicted of treason or felony with the death penalty and forfeiture of all lands and goods] in the life of the father, and after he purchases his -charter of pardon of the king, and after the father dies; in this case the land shall escheat to the lord of the fee, insomuch that though he has a younger brother, yet the land shall not descend to him: for by the attainder of the elder brother the blood is corrupt, and the father in the law died -without heir. . a man declared outlaw forfeits his profits from land and his goods to the king. . he who is arraigned upon an indictment of felony shall be admitted, in favor of life, to challenge thirty-five inquirers (three whole inquests would have thirty-six) peremptorily. with cause, he may challenge as many as he has cause to challenge if he can prove it. such peremptory challenge shall not be admitted in a private suit. . an accessory shall not be put to answer before the principal. . if a man commands another to commit a trespass, and he does it, the one who made the command is a trespasser. . the land of every man is in the law enclosed from other, though it lies in the open field, and a trespasser in it may be brought to court. . every man is bound to make recompense for such hurt as his beasts do in the growing grain or grass of his neighbor, though he didn't know that they were there. . if two titles are concurrent together, the oldest title shall be preferred. . he who recovers debt or damages in the king's court when the person charged is not in custody, may within a year after the judgment take the body of the defendant, and commit him to prison until he has paid the debt and damages. . if the demandant or plaintiff, hanging his writ (writ pending in court), will enter into the thing demanded, his writ shall abate. . by the alienation of the tenant, hanging the writ, or his entry into religion, or if he is made a knight, or she is a woman and takes a husband hanging the writ, the writ shall not abate. . the king may disseise no man and no man may disseise the king, nor pull any reversion or remainder out of him. judicial procedure the prohibition against maintenance was given penalties in of s. per person for a knight or lower giving livery of cloth or hats, and of s. for the receiver of such. a person who brought such suit to court was to be given half the penalty. the justices of assize and king's bench were authorized to inquire about such practices. the statute explicitly included ladies and any writing, oath, or promise as well as indenture. excepted were guilds, fraternities, and craftsmen of cities and boroughs which were founded on a good purpose; universities; the mayor and sheriffs of london; and also lords, knights, and esquires in time of war. a penalty of one year in prison without bail was given. in , there was a penalty of s. per livery to the giver of such, s. per month to the retainer or taker of such, and s. per month to the person retained. still this law was seldom obeyed. people took grievances outside the confines of the rigid common law to the chancellor, who could give equitable remedies under authority of a statute of (described in chapter ). the chancery heard many cases of breach of faith in the "use", a form of trust in which three parties were involved: the holder of land, feofees to whom the holder had made it over by conveyance or "bargain and sale", and the beneficiary or receiver of the profits of the land, who was often the holder, his children, relatives, friends, an institution, or a corporation. this system of using land had been created by the friars to get around the prohibition against holding property. lords and gentry quickly adopted it. the advantages of the use were that ) there was no legal restriction to will away the beneficial interest of the use although the land itself could not be conveyed by will; ) it was hard for the king to collect feudal incidents because the feoffees were often unknown ) the original holder was protected from forfeiture of his land in case of conviction of treason if the crown went to someone he had not supported. chancery gave a remedy for dishonest or defaulting feofees. chancery also provided the equitable relief of specific performance in disputes over agreements, for instance, conveyance of certain land, whereas the common law courts awarded only monetary damages by the writ of covenant. chancery ordered accounts to be made in matters of foreign trade because the common law courts were limited to accounts pursuant to transactions made within the nation. it also involved itself in the administration of assets and accounting of partners to each other. the chancellor took jurisdiction of cases of debt, detinue, and account which had been decided in other courts with oath-helping by the defendant. he did not trust the reliance on friends of the defendant swearing that his statement made in his defense was true. an important evidentiary difference between procedures of the chancery and the common law courts was that the chancellor could orally question the plaintiff and the defendant under oath. he also could order persons to appear at his court by subpoena, under pain of punishment, such as a heavy fine. the court of common pleas had three types of jurisdiction: ) common law jurisdiction between person and person, including actions regarding land, which was exclusive, ) personal actions of debt, detinue, account and covenant, and ) mixed actions, both personal and regarding land, e.g. ejectment. it had shared jurisdiction with the court of the king's bench in maintenance, conspiracy, other breaches of statute, trespass, trespass on the case, and their derivatives. most of its business had to do with recovery of debt, from s. to thousands of pounds. whereas the characteristic award of the common law courts was seisin of land or monetary damages, chancery often enjoined certain action. because malicious suits were a problem, the chancery identified such suits and issued injunctions against taking them to any court. the chancery was given jurisdiction by statute over men of great power taking by force women who had lands and tenements or goods and not setting them free unless they bound themselves to pay great sums to the offenders or to marry them. a statute also gave chancery jurisdiction over servants taking their masters' goods at his death. chancery could issue writs of habeas corpus [produce the body] to bring a person before a court or judge. justices of the peace, appointed by the crown, investigated all riots and arrested rioters, by authority of statute. if they had departed, the justices certified the case to the king. the case was then set for trial first before the king and his council and then at the king's bench. if the suspected rioters did not appear at either trial, they could be convicted for default of appearance. if a riot was not investigated and the rioters sought, the justice of the peace nearest forfeited , s. justices of the peace were not paid. for complex cases and criminal cases with defendants of high social status, they deferred to the justices of assize, who rode on circuit once or twice a year. since there was no requirement of legal knowledge for a justice of the peace, many referred to the "boke of the justice of the peas" compiled about for them to use. manor courts still formally admitted new tenants, registered titles, sales of land and exchanges of land, and commutation of services, enrolled leases and rules of succession, settled boundary disputes, and regulated the village agriculture. all attorneys shall be examined by the royal justices for their learnedness in the law and, at their discretion, those that are good and virtuous shall be received to make any suit in any royal court. these attorneys shall be sworn to serve well and truly in their offices. attorneys may plead on behalf of parties in the hundred courts. a qualification for jurors was to have an estate to one's own use or one of whom other persons had estates of fee simple, fee tail, or freehold in lands and tenements, which were at least s. per year in value. in a plea of land worth at least s. yearly or a personal plea with relief sought at least s., jurors had to have land in the bailiwick to the value of at least s., because perjury was considered less likely in the more sufficient men. in criminal cases, there were many complaints made that the same men being on the grand assize and petty assize was unfair because prejudicial. so it became possible for a defendant to challenge an indictor for cause before the indictor was put on the petty assize. then the petty assize came to be drawn from the country at large and was a true petty or trial jury. jurors were separated from witnesses. in the s, the principle was established that a juror should not sit on a case of which he had previous knowledge. justices of the peace were to have lands worth s. yearly, because those with less had used the office for extortion and lost the respect and obedience of the people. a sheriff was not to arrest, but to transfer indictments to the justices of the peace of the county. he had to reside in his bailiwick. the sheriff could be sued for misfeasance such as bribery in the king's court. impeachment was replaced with bill of attainder during the swift succession of parliaments during the civil war. this was a more rapid and efficient technique of bringing down unpopular ministers or political foes. there was no introduction of evidence, nor opportunity for the person accused to defend himself, nor any court procedure, as there was with impeachment. an example of a case of common law decided by court of king's bench is russell's case ( ) as follows: in the king's bench one thomas russell and alice his wife brought a writ of trespass for goods taken from alice while she was single. the defendant appeared and pleaded not guilty but was found guilty by a jury at nisi prius, which assessed the damages at pounds. before the case was next to be heard in the king's court an injunction issued out of the chancery to the plaintiffs not to proceed to judgment, on pain of pounds, and for a long time judgment was not asked for. then hussey cjkb. asked spelman and fincham, who appeared for the plaintiff if they wanted to ask for judgment according to the verdict. fincham [p]: we would ask for judgment, except for fear of the penalty provided for in the injunction, for fear that our client will be imprisoned by the chancellor if he disobeys. fairfax, jkb: he can ask for judgment in spite of the injunction, for if it is addressed to the plaintiff his attorney can ask for judgment, and vice versa. hussey, cjkb: we have consulted together on this matter among ourselves and we see no harm which can come to the plaintiff if he proceeds to judgment. the law will not make him pay the penalty provided in the injunction. if the chancellor wants to imprison him he must send him to the fleet prison, and, as soon as you are there you will inform us and we shall issue a habeas corpus returnable before us, and when you appear before us we shall discharge you, so you will not come to much harm, and we shall do all we can for you. nevertheless, fairfax said he would go to the chancellor and ask him if he would discharge the injunction. and they asked for judgment and it was held that they should recover their damages as assessed by the jury, but they would not give judgment for damages caused by the vexation the plaintiff suffered through the chancery injunction. and they said that if the chancellor would not discharge the injunction, they would give judgment if the plaintiff would ask for it. an example of a petition to chancery in the s is hulkere v. alcote, as follows: to the right reverend father in god and gracious lord bishop of bath, chancellor of england, your poor and continual bedwoman lucy hulkere, widow of westminster, most meekly and piteously beseeches: that whereas she has sued for many years in the king's bench and in the common pleas for withholding diverse charters and evidences of land, leaving and delaying her dower of the manor of manthorpe in lincolnshire and also of the manor of gildenburton in northamptonshire, together with the withdrawing of her true goods which her husband gave her on his deathbed to the value of pounds and more, under record of notary, sued against harry alcote and elizabeth of the foresaid gildenburton within the same county of northampton. and by collusion and fickle counsel of the foresaid harry and elizabeth his mother there was led and shown for him within the common pleas a false release, sealed, to void and exclude all her true suit by record of true clerks and attorneys of the aforesaid common pleas. of the which false release proved she has a copy to show. [all this is] to her great hindrance and perpetual destruction unless she have help and remedy by your righteous and gracious lordship in this matter at this time. that it please your noble grace and pity graciously to grant a writ subpoena to command the foresaid henry alcote and elizabeth alcote to come before your presence by a certain day by you limited in all haste that they may come to westminster to answer to this matter abovesaid, for love of god and a deed of charity, considering graciously that the foresaid harry alcote, with another fellow of his affinity who is not lately hanged for a thief in franceled her into a garden at gildenburton and put her down on the ground, laying upon her body a board and a summer saddle and great stones upon the board, the foresaid harry alcote sitting across her feet and the other at her head for to have slain her and murdered her, and by grace of our lady her mother- in-law out walking heard a piteous voice crying and by her goodness she was saved and delivered, and otherwise would be dead. pledges to prosecute: john devenshire of berdevyle in essex and james kelom of london. returnable in michaelmas term. chapter the times: - henry tudor and other exiles defeated and killed richard iii on bosworth field, which ends the civil war of the roses between the lancaster and york factions. as king, henry vii restored order to the nation. he was readily accepted as king because he was descended from the lancaster royal line and he married a woman from the york royal line. henry was intelligent and sensitive. he weighed alternatives and possible consequences before taking action. he was convinced by reason on what plans to make. in his reign of years, henry applied himself diligently to the details of the work of government to make it work well. he strengthened the monarchy, shored up the legal system to work again, and provided a peace in the land in which a renaissance of the arts and sciences, culture, and the intellectual life could flourish. his primary strategy was enacting and enforcing statutes to shore up the undermined legal system, which includes the establishment of a new court: the court of the star chamber, to obtain punishment of persons whom juries were afraid to convict. it had no jury and no grand jury indictment. for speed and certainty, it tried people "ex officio": by virtue of its office. suspects were required to take an oath ex officio, by which they swore to truthfully answer all questions put to them. a man could not refuse to answer on the grounds of self-incrimination. the star chamber was the room in which the king's council had met since the s. the most prevalent problems were: murder, robbery, rape or forced marriage of wealthy women, counterfeiting of coin, extortion, misdemeanors by sheriffs and escheators, bribing of sheriffs and jurors, perjury, livery and maintenance agreements, idleness, unlawful plays, and riots. interference with the course of justice was not committed only by lords on behalf of their retainers; men of humbler station were equally prone to help their friends in court or to give assistance in return for payment. rural juries were intimidated by the old baronage and their armed retinues. juries in municipal courts were subverted by gangs of townsmen. justices of the peace didn't enforce the laws. the agricultural work of the nation had been adversely affected. henry made policy with the advice of his council and had parliament enact it into legislation. he dominated parliament by having selected most of its members. many of his council were sons of burgesses and had been trained in universities. he chose competent and especially trusted men for his officers and commanders of castles and garrison. the fact that only the king had artillery deterred barons from revolting. also, the baronial forces were depleted due to the civil war of the roses. if henry thought a magnate was exercising his territorial power to the king's detriment, he confronted him with an army and forced him to bind his whole family in recognizances for large sums of money to ensure future good conduct. since the king had the authority to interpret these pledges, they were a formidable check on any activity which could be considered to be disloyal. the earl of kent, whose debts put him entirely at the king's mercy, was bound to "be seen daily once in the day within the king's house". henry also required recognizances from men of all classes, including clergy, captains of royal castles, and receivers of land. the higher nobility now consisted of about twenty families. the heavy fines by the star court put an end to conspiracies to defraud, champerty [an agreement with a litigant to pay costs of litigation for a share in the damages awarded], livery, and maintenance. the ties between the nobility and the justices of the peace had encouraged corruption of justice. so henry appointed many of the lesser gentry and attorneys as justices of the peace. also he appointed a few of his councilors as nonresident justices of the peace. there were a total of about thirty justices of the peace per county. their appointments were indefinite and most remained until retirement or death. henry instituted the yeomen of the guard to be his personal bodyguards night and day. many bills of attainder caused lords to lose their land to the king. most of these lords had been chronic disturbers of the peace. henry required retainers to be licensed, which system lasted until about . henry was also known to exhaust the resources of barons he suspected of disloyalty by accepting their hospitality for himself and his household for an extended period of time. henry built up royal funds by using every available procedure of government to get money, by maximizing income from royal estates by transferring authority over them from the exchequer to knowledgeable receivers, and from forfeitures of land and property due to attainders of treason. he also personally reviewed all accounts and initialed every page, making sure that all payments were made. he regularly ordered all men with an income of s. [ pounds] yearly from lands or revenue in hand to receive knighthoods, which were avoided by those who did not want to fight, or pay a high fee. as a result, the crown became rich and therefore powerful. henry's queen, elizabeth, was a good influence on his character. her active beneficence was a counteracting influence to his avaricious predisposition. when henry and his queen traveled through the nation, they often stopped to talk to the common people. they sometimes gave away money, such as to a man who had lost his hand. henry paid for an intelligent boy he met to go to school. henry had the first paper mill erected in the nation. he fostered the reading of books and the study of roman law, the classics, and the bible. he had his own library and gave books to other libraries. the age of entry to university was between and . it took four years' study of grammar, logic, and rhetoric to achieve the bachelor of arts degree and another five before a master could begin a specialized study of the civil law, canon law, theology, or medicine. humanist studies were espoused by individual scholars at the three centers of higher learning: oxford university, cambridge university, and the inns of court in london. the inns of court attracted the sons of gentry and merchants pursuing practical and social accomplishments. the text of "readings" to members of the inns survive from this time. in the legalistic climate of these times, attorneys were prosperous. the enclosure of land by hedges for sheep farming continued, especially by rich merchants who bought country land for this purpose. often this was land that had been under the plough. any villeins were given their freedom and they and the tenants at will were thrown off it immediately. that land held by copyholders of land who had only a life estate, was withheld from their sons. only freeholders and copyholders with the custom of the manor in their favor were secure against eviction. but they could be pressured to sell by tactics such as breeding rabbits or keeping geese on adjoining land to the detriment of their crops, or preventing them from taking their traditional short cuts across the now enclosed land to their fields. the real line of distinction between rural people was one of material means instead of legal status: free or unfree. on one extreme was the well-to-do yeoman farmer farming his own land. on the other extreme was the agricultural laborer working for wages. henry made several proclamations ordering certain enclosures to be destroyed and tillage to be restored. other land put to use for sheep breeding was waste land. there were three sheep to every person. the nearby woodlands no longer had wolves or lynx who could kill the sheep. bears and elk are also gone.there were still deer, wild boar, wildcats and wild cattle in vast forests for the lords to hunt. wood was used for houses, arms, carts, bridges, and ships. the villages were still isolated from each other, so that a visitor from miles away was treated as warily as a foreigner. most people lived and died where they had been born. a person's dialect indicated his place of origin. the life of the village still revolved around the church. in some parishes, its activities were highly organized, with different groups performing different functions. for example, the matrons looked after a certain altar; the maidens raised money for a chapel or saw to the gilding of the images; the older men collected money for church repair; and the younger men organized the church ales and the church plays. wills often left property or rents from leased land to the church. church cows and sheep given could be leased out to villagers. church buildings given could be leased out, turned over to the poor, used to brew ale or bake bread for church ales, or used in general as a place for church activities. church ales would usually a good source of income; alehouses would be closed during the ceremonies and parishioners would contribute malt for the ale and grain, eggs, butter, cheese, and fruits. the largest town, london, had a population of about , . other towns had a population less than , . the population was increasing, but did not reach the level of the period just before the black death. in most large towns, there were groups of tailors and hatmakers, glovers, and other leatherworkers. some towns had a specialization due to their proximity to the sources of raw materials, such as nails, cutlery, and effigies and altars. despite the spread of wool manufacturing to the countryside, there was a marked increase of industry and prosperity in the towns. the principal streets of the larger towns were paved with gravel. guild halls became important and imposing architecturally. a large area of london was taken up by walled gardens of the monasteries and large mansions. there were some houses of stone and timber and some mansions of brick and timber clustered around palaces. in these, bedrooms increased in number, with rich bed hangings, linen sheets, and bolsters. bedspreads were introduced. nightgowns were worn. fireplaces became usual in all the rooms. tapestries covered the walls. carpets were used in the private rooms. some of the great halls had tiled floors. the old trestle tables were replaced by tables with legs. benches and stools had backs to lean on. a long gallery was used for exercise, recreation such as music and dancing, and private conversations. women and men wore elaborate headdresses. on the outer periphery are taverns and brothels, both made of mud and straw. houses are beginning to be built outside the walls of london along the thames because the collapse of the power of the great feudal lords decreased the fear of an armed attack on london. the merchants introduced this idea of living at a distance from the place of work so that they could escape living in the narrow, damp, and dark lanes of the city and have more light and space. indeed no baronial army ever threatened the king again. east of london were cattle pastures, flour mills, bakers, cloth-fulling mills, lime burners, brick and tile makers, bell founders, and ship repairing. there was a drawbridge on the south part of london bridge for defense and to let ships through. water sports were played on the thames such as tilting at each other with lances from different boats. the tailors' and linen armorers' guild received a charter in from the king as the "merchant tailors" to use all wares and merchandise, especially wool cloth, as well wholesale as retail, throughout the nation. some schooling was now being made compulsory in certain trades; the goldsmiths' company made a rule that all apprentices had to be able to read and write. there are guilds of ironmongers, salters, and haberdashers [hats and caps] a yeoman was the second-rank person of some importance, below a knight, below a gentleman, below a full member of a guild. in london, it meant the journeyman or second adult in a small workshop. these yeomen had their own fraternities and were often on strike. some yeomen in the large london industries, e.g. goldsmiths, tailors, cloth workers, who had served an apprenticeship started their own businesses in london suburbs outside the jurisdiction of their craft to search them. the merchant adventurers created a london fellowship confederacy to make membership of their society and compliance with its regulations binding on all cloth traders and to deal with common interests and difficulties such as taxation, relations with rulers, and dangers at sea. they made and enforced trading rules, chartered fleets, and organized armed convoys when the seas were unsafe and coordinated policies with henry vii. membership could be bought for a large fee or gained by apprenticeship or by being the son of a member. tudor government was paternalistic, curtailing cutthroat competition, fixing prices and wages, and licensing production under grants of monopoly to achieve a stable and contented society and a fair living for all. foreign trade was revived because it was a period of comparative peace. the nation sought to sell as much as possible to foreign nations and to buy at little as possible and thereby increase its wealth in gold and silver, which could be used for currency. ships weighed tons and had twice the cargo space they had previously. their bows were more pointed and their high prows made them better able to withstand gales. the mariners' compass with a pivoting needle and circular dial with a scale was introduced. the scale gave precision to directions. ships had three masts. on the first was a square sail. on the second was a square sail with a small rectangular sail above it. on the third was a three cornered lateen sail. these sails make it possible to sail in almost any direction. this opened the seas of the world to navigation. at this time navigators kept their knowledge and expertise secret from others. adventurous seamen went on voyages of discovery, such as john cabot to north america in , following italian christopher columbus' discovery of the new world in . ferdinand magellan of portugal circumnavigated the world in , proving uncontrovertedly that the earth was spherical rather than flat. theologians had to admit that jerusalem was not the center of the world. sailors overcame their fear of tumbling into one of the openings into hell that they believed were far out into the atlantic ocean and ceased to believe that a red sunset in the morning was due to a reflection from hell. seamen could venture forth into the darkness of the broad atlantic ocean with a fair expectation of finding their way home again. they gradually learned that there were no sea serpents or monsters that would devour foolhardy mariners. they learned to endure months at sea on a diet of salt beef, beans, biscuits, and stale water and the bare deck for a bed. but there were still mutinies and disobedient pilots. mortality rates among seamen were high. there are more navy ships, and they have some cannon. the blast furnace was introduced in the iron industry. a blast of hot air was constantly forced from a stove into the lower part of the furnace which was heating at high temperature a mixture of the iron ore and a reducing agent that combined with the oxygen released. after the iron was extracted, it was allowed to harden and then reheated and hammered on an anvil to shape it and to force out the hard, brittle impurities. blast furnace heat was maintained by bellows worked by water wheels. alchemists sought to make gold from the baser metals and to make a substance that would give them immortality. there was some thought that suffocation in mines, caverns, wells, and cellars was not due to evil spirits, but to bad air such as caused by "exhalation of metals". in , german peter henlein invented the pocket watch and the mainspring inside it. there were morality plays in which the seven deadly sins: pride, covetousness, lust, anger, gluttony, envy, and sloth, fought the seven cardinal virtues: faith, hope, charity, prudence, temperance, justice, and strength, respectively, for the human soul. the play "everyman" demonstrates that every man can get to heaven only by being virtuous and doing good deeds in his lifetime. it emphasizes that death may come anytime to every man, when his deeds will be judged as to their goodness or sinfulness. card games were introduced. the legend of robin hood was written down. the commons gained the stature of the lords and statutes were regularly enacted by the "assent of the lords spiritual and temporal and the commons". the commons now assented instead merely requested enactments. the law royal proclamations clarifying, refining or amplifying the law had the force of parliamentary statutes. in , the king proclaimed that "forasmuch as many of the king our sovereign lord's subjects [have] been disposed daily to hear feigned, contrived, and forged tidings and tales, and the same tidings and tales, neither dreading god nor his highness, utter and tell again as though they were true, to the great hurt of divers of his subjects and to his grievous displeasure: therefore, in eschewing of such untrue and forged tidings and tales, the king our said sovereign lord straitly chargeth and commandeth that no manner person, whatsoever he be, utter nor tell any such tidings or tales but he bring forth the same person the which was author and teller of the said tidings or tales, upon pain to be set on the pillory, there to stand as long as it shall be thought convenient to the mayor, bailiff, or other official of any city, borough, or town where it shall happen any such person to be taken and accused for any such telling or reporting of any such tidings or tales. furthermore the same our sovereign lord straitly chargeth and commandeth that all mayors, bailiffs, and other officers diligently search and inquire of all such persons tellers of such tidings and tales not bringing forth the author of the same, and them set on the pillory as it is above said." he also proclaimed in that no one, except peace officers, may carry a weapon, e.g. bows, arrows, or swords, in any town or city unless on a journey. he proclaimed in that no one may refuse to receive silver pennies or other lawful coin as payment regardless of their condition as clipped, worn, thin, or old, on pain of imprisonment and further punishment. a statute provided that: lords holding castles, manors, lands and tenements by knight's service of the king shall have a writ of right for wardship of the body as well as of the land of any minor heir of a deceased person who had the use [beneficial enjoyment of a trust] of the land for himself and his heirs as if the land had been in the possession of the deceased person. and if such an heir is of age, he shall pay relief to the lord as if he had inherited possession of the land. an heir in ward shall have an action of waste against his lord as if his ancestor had died seised of the land. that is, lands of "those who use" shall be liable for execution of his debt and to the chief lord for his relief and heriot, and if he is a bondsman, they may be seized by the lord. the king tried to retain the benefits of feudal incidents on land by this statute of uses, but attorneys sought to circumvent it by drafting elaborate and technical instruments to convey land free of feudal burdens. any woman who has an estate in dower, or for a term of life, or in [fee] tail, jointly with her husband, or only to herself, or to her use, in any manors, lands, tenements, or other hereditaments of the inheritance or purchase of her husband, or given to the said husband and wife in tail, or for term of life, by any of the ancestors of the said husband, or by any other person seised to the use of the said husband, or of his ancestors, who, by herself or with any after taken husband; discontinue, alienate, release, confirm with warranty or, by collusion, allow any recovery of the same against them or any other seised to their use, such action shall be void. then, the person to whom the interest, title, or inheritance would go after the death of such woman may enter and possess such premises. this does not affect the common law that a woman who is single or remarried may give, sell, or make discontinuance of any lands for the term of her life only. all deeds of gift of goods and chattels made of trust, to the use of the giver [grantor and beneficiary of trust], to defraud creditors are void. it is a felony to carry off against her will, a woman with lands and tenements or movable goods, or who is heir-apparent to an ancestor. this includes taking, procuring, abetting, or knowingly receiving a woman taken against her will. a vagabond, idle, or suspected person shall be put in the stocks for three days with only bread and water, and then be put out of the town. if he returns, he shall spend six days in the stocks. (a few years later this was changed to one and three days, respectively.) every beggar who is not able to work, shall return to the hundred where he last dwelled, is best known, or was born and stay there. no one may take pheasants or partridges by net snares or other devices from his own warren [breeding ground], upon the freehold of any other person, or else forfeit s., one half to the owner of the land and the other half to the suer. no one may take eggs of any falcon, hawk, or swan out of their nest, whether it is on his land or any other man's land, on pain of imprisonment for one year and fine at the king's will, one half to the king, and the other half to the holder of the land, or owner of the swan. no man shall bear any english hawk, but shall have a certificate for any imported hawk, on pain for forfeiture of such. no one shall drive falcons or hawks from their customary breeding place to another place to breed or slay any for hurting him, or else forfeit s. after examination by a justice of the peace, one half going to the king and one half to the suer. any person without a forest of his own who has a net device with which to catch deer shall pay s. for each month of possession. anyone stalking a deer with beasts anywhere not in his own forest shall forfeit s. anyone taking any heron by device other than a hawk or long bow shall forfeit s. d. no one shall take a young heron from its nest or pay s. for each such heron. two justices may decide such an issue, and one tenth of the fine shall go to them. no man shall shoot a crossbow except in defense of his house, other than a lord or one having , s. of land because their use had resulted in too many deer being killed. (the longbow was not forbidden.) no beasts may be slaughtered or cut up by butchers within the walls of a town, or pay d. for every ox and d. for every cow or other beast, so that people will not be annoyed and distempered by foul air, which may cause them sickness. no tanner may be a currier [dressed, dyed, and finished tanned leather] and no currier may be a tanner. no shoemaker [cordwainer] may be a currier and no currier may be a shoemaker. no currier shall curry hides which have not been tanned. no tanner shall sell other than red leather. no tanner may sell a hide before it is dried. no tanner may tan sheepskins. no long bow shall be sold over the price of s. d. good wood for making bows may be imported without paying customs. no grained cloth of the finest making shall be sold for more than s., nor any other colored cloth for more than s. per yard, or else forfeit s. for every yard so sold. no hat shall be sold for more than d. and no cap shall be sold for more than s. d., or else forfeit s. for each so sold. silver may not be sold or used for any use but goldsmithery or amending of plate to make it good as sterling, so that there will be enough silver with which to make coinage. each feather bed, bolster, or pillow for sale shall be stuffed with one type of stuffing, that is, dry pulled feathers or with clean down alone, and with no sealed feathers nor marsh grass, nor any other corrupt stuffings. each quilt, mattress, or cushion for sale shall be stuffed with one type of stuffing, that is, clean wool, or clean flocks alone, and with no horsehair, marsh grass, neatshair, deershair, or goatshair, which is wrought in lime fats and gives off an abominable and contagious odor when heated by a man's body, on pain of forfeiture of such. salmon shall be sold by standard volume butts and barrels. large salmon shall be sold without any small fish or broken-bellied salmon and the small fish shall be packed by themselves only, or else forfeit s. d. herring shall be sold at standard volumes. the herring shall be as good in the middle and in every part of the package as at the ends of the package, or else forfeit s. d. eels shall be sold at standard volumes, and good eels shall not be mixed with lesser quality eels, or else forfeit s. the fish shall be packed in the manner prescribed or else forfeit s. d. for each vessel. fustians shall always be shorn with the long shear, so that it can be worn for at least two years. if an iron or anything else used to dress such injures the cloth so that it wears out after four months, s. shall be forfeited for each default, one half to the king and the other half to the suer. pewter and brass ware for sale shall be of the quality of that of london and marked by its maker, on pain of forfeiture of such, and may be sold only at open fairs and markets or in the seller's home, or else forfeit s. if such false ware is sold, its maker shall forfeit its value, one half to the king and one half to the searchers. anyone using false weights of such wares shall forfeit s., one half to the king and one half to the suer, or if he cannot pay this fine, to be put in the stocks until market day and then be put in the pillory all the market time. no alien nor denizen [foreigner allowed to reside in the nation with certain rights and privileges] may carry out of the nation any raw wool or any woolen cloth which has not been barbed, rowed, and shorn. silk ribbons, laces, and girdles of silk may not be imported, since they can be made in the nation. no one shall import wine into the nation, but on english ships, or else forfeit the wine, one half to the king and one half to the seizer of the wine. no one may take out of the nation any [male] horse or any mare worth more than s. s. or under the age of three years, upon pain of forfeiture of such. however, a denizen may take a horse for his own use and not to sell. this is to stop losing horses needed for defense of the nation and to stop the price of a horse from going up. freemen of london may go to fairs and markets with wares to sell, despite the london ordinance to the contrary. merchants residing in the nation but outside london shall have free access to foreign markets without exaction taken of more than s. sterling by the confederacy of london merchants, which have increased their fee so much, s., that merchants not in the confederacy have been driven to sell their goods in london for less than they would get at a foreign market. exacting more is punishable by a fine of s. and damages to the grieved party of ten times the excess amount taken. for the privilege of selling merchandise, a duty of scavage shall be taken of merchant aliens, but not of denizens. any town official who allows disturbing of a person trying to sell his merchandise because he has not paid scavage, shall pay a fine of s. coin clipped or diminished shall not be current in payment, but may be converted at the king's mint into plate or bullion. anyone refusing to take coins with only normal wear may be imprisoned by the mayor, sheriff, bailiff, constable or other chief officer. new coins, which have a circle or inscription around the outer edge, will be deemed clipped if this circle or inscription is interfered with. the penalty for usury is placement in the pillory, imprisonment for half a year, and a fine of s. (the penalty was later changed to one half thereof.) lawbooks in use at the inns of court included "the books of magna carta with diverse old statutes", "doctor and student" by st. germain, "grand abridgment" by fitzherbert, and "new natura brevium" by lombard. judicial procedure this statute made changes in the judicial process: the chancellor, treasurer, keeper of the king's privy seal, or two of them, with a bishop selected by them, and a temporal lord of the king's council selected by them, and the two chief justices of the king's bench shall constitute the court of the star chamber. it shall have the authority to call before it by writ or by privy seal anyone accused of "unlawful maintenances, giving of liveries, signs and tokens, and retainers by indentures, promises, oaths, writings, or otherwise embraceries of his subjects" and witnesses, and impose punishment as if convicted under due process of law. these laws shall now be enforced: if a town does not punish the murderer of a man murdered in the town, the town shall be punished. a town shall hold any man who wounds another in peril of death, until there is perfect knowledge whether the man hurt should live or die. upon viewing a dead body, the coroner should inquire of the killers, their abettors, and anyone present at the killing and certify these names. in addition, the murderer and accessories indicted shall be tried at the king's suit within a year of the murder, which trial will not be delayed until a private suit is taken. if acquitted at the king's suit, he shall go back to prison or let out with bail for the remainder of the year, in which time the slain man's wife or next of kin may sue. for every inquiry made upon viewing a slain body, coroners shall be paid s. d. out of the goods of the slayer or from a town not taking a murderer, but letting him escape. if the coroner does not make inquiry upon viewing a dead body, he shall be fined s. to the king. if a party fails to appear for trial after a justice has taken bail from him, a record of such shall be sent to the king. henry sat on the star chamber. up to , it heard many cases of forgery, perjury, riot, maintenance, fraud, libel, and conspiracy. it could mete out any punishment, except death or any dismemberment. this included life imprisonment, fines, pillory, whipping, branding, and mutilation. if a justice of the peace does not act on any person's complaint, that person may take that complaint to another justice of the peace, and if there is no remedy then, he may take his complaint to a justice of assize, and if there is not remedy then, he may take his complaint to the king or the chancellor. there shall then be inquiry into why the other justices did not remedy the situation. if it is found that they were in default in executing the laws, they shall forfeit their commissions and be punished according to their demerits. justices of the peace shall make inquiry of all offenses in unlawful retaining, examine all suspects, and certify them to the king's bench for trial there or in the king's council, and the latter might also proceed against suspects on its own initiative on information given. perjury committed by unlawful maintenance, embracing, or corruption of officers, or in the chancery, or before the king's council, shall be punished in the discretion of the chancellor, treasurer, both the chief justices, and the clerk of the rolls. the star chamber, chancellor, king's bench and king and council have the power to examine all defendants, by oath or otherwise, to adjudge them convicted or attainted. they can also be found guilty by confession, examination, or otherwise. if a defendant denied doing the acts of which he is convicted, he was subject to an additional fine to the king and imprisonment. violations of statutes may be heard by the justices of assize or the justices of the peace, except treason, murder, and other felony. actions on the case shall be treated as expeditiously in the courts of the king's bench and common pleas as actions of trespass or debt. proclamation at four court terms of a levy of a fine shall be a final end to an issue of land, tenements, or other hereditaments and the decision shall bind persons and their heirs, whether they have knowledge or not of the decision, except for women-covert who were not parties, persons under the age of twenty-one, in prison, out of the nation, or not of whole mind, who are not parties. these may sue within five years of losing such condition. also, anyone not a party may claim a right, title, claim, or interest in the said lands, tenements, or other hereditaments at the time of such fine recorded, within five years after proclamations of the fine. a defendant who appeals a decision for the purpose of delaying execution of such shall pay costs and damages to the plaintiff for the delay. no sheriff, undersheriff, or county clerk shall enter any complaints in their books unless the complaining party is present. and no more complaints than the complaining party knows about shall be entered. the penalty is s. for each such false complaint, one half to the king and the other half to the suer after examination by a justice of the peace. this is to prevent extortion of defendants by false complaints. the justice shall certify this examination to the king, on pain of a fine of s. a bailiff of a hundred who does not do his duty to summon defendants shall pay a fine of s. for each such default, after examination by a justice of the peace. sheriffs' records of fines imposed and bailiffs' records of fines collected may be reviewed by a justice of the peace to examine for deceit. any sheriff allowing a prisoner to escape, whether from negligence or for a bribe, shall be fined, if the prisoner was indicted of high treason, at least , s. for each escape. however, if the prisoner was in their keeping because of a suspicion of high treason, the fine shall be at least s.; and if indicted of murder or petite treason, at least s.; and if suspected of murder or petite treason, s.; and if suspected of other felonies, s. petite treason was that by a wife to her husband or a man to his lord. any person not responding to a summons for jury service shall be fined d. for the first default, and s. for the second, and double for each subsequent default. a pauper may sue in any court and be assigned a attorney at no cost to him. a justice of the peace to whom has been reported hunting by persons disguised with painted faces or visors or otherwise, may issue a warrant for the sheriff or other county officer to arrest such persons and bring them before the justice. such hunting in disguise or hunting at night or disobeying such warrant is a felony. this is to stop large mobs of disguised people from hunting together and then causing riots, robberies, and murders. benefit of clergy may be used only once, since this privilege has made clerics more bold in committing murder, rape, robbery, and theft. however, there will be no benefit of clergy in the case of murder of one's immediate lord, master, or sovereign. (this begins the gradual restriction over many years of benefit of clergy until it disappears. also, benefit of clergy was often disregarded in unpeaceful times.) for an issue of riot or unlawful assembly, the sheriff shall call jurors, each of lands and tenements at least s. of charter land or freehold or s. d. of copyhold or of both. for each default of the sheriff, he shall pay s. and if the jury acquits, then the justice, sheriff, and under-sheriff shall certify the names of any jurors maintained or embraced and their misdemeanors, or else forfeit s. any person proved to be a maintainer or embracer shall forfeit s. to the king and be committed to ward. the principal leaders of any riot or unlawful assembly shall be imprisoned and fined and be bound to the peace with sureties at a sum determined by the justices of the peace. if the riot is by forty people or heinous, the justices of peace shall certify such and send the record of conviction to the king. the king's steward, treasurer, and comptroller have authority to question by twelve discreet persons any servant of the king about making any confederacies, compassings, conspiracies, or imaginations with any other person to destroy or murder the king or one of his council or a lord. trial shall be by twelve men of the king's household and punishment as by felony in the common law. ohanges in the judicial process other than those made by statute were made by court decision. for instance, the royal justices decided that only the king could grant sanctuary for treason and not the church. after this, the church withdrew the right of sanctuary from second time offenders. the king's council has practically limited itself to cases in which the state has an interest, especially the maintenance of public order. chancery became an independent court rather than the arm of the king and his council. in chancery and the king's bench, the intellectual revival brought by humanism inspires novel procedures to be devised to meet current problems in disputed titles to land, inheritance, debt, breach of contract, promises to perform acts or services, deceit, nuisance, defamation, and the sale of goods. a new remedy is specific performance, that is, performance of an act rather than money damages. evidence is now taken from witnesses. various courts had overlapping jurisdiction. for instance, trespass could be brought in the court of common pleas because it was a civil action between two private persons. it could also be brought in the court of the king's bench because it broke the king's peace. it was advantageous for a party to sue for trespass in the king's court because there a defendant could be made to pay a fine to the king or be imprisoned, or declared outlaw if he did not appear at court. a wrongful step on the defendant's land, a wrongful touch to his person or chattels could be held to constitute sufficient force and an adequate breach of the king's peace to sustain a trespass action. trespass on the case did not require the element of force or of breach of the peace that the trespass offense requires. trespass on the case expands in usage to cover many types of situations. stemming from it is "assumpsit", which provided damages for breach of an oral agreement and for a written agreement without a seal. parliament's supremacy over all regular courts of law was firmly established and it was called "the high court of parliament", paradoxically, since it rarely came to function as a law court. when a land holder enfeoffs his land and tenements to people unknown to the remainderman in [fee] tail, so that he does not know who to sue, he may sue the receiver of the profits of the land and tenements for a remedy. and the receivers shall have the same advantages and defenses as the feoffees or as if they were tenants. and if any deceased person had the use for himself and his heirs, then any of his heirs shall have the same advantages and defenses as if his ancestor had died seised of the land and tenements. and all recoveries shall be good against all receivers and their heirs, and the feofees and their heirs, and the co- feoffees of the receivers and their heirs, as though the receivers were tenants indeed, or feofees to their use, or their heirs of the freehold of the land and tenements. if a person feoffs his land to other persons while retaining the use thereof for himself, it shall be treated as if he were still seised of the land. thus, relief and heriot will still be paid for land in socage. and debts and executions of judgments may be had upon the land and tenements. the penalty for not paying customs is double the value of the goods. the town of london shall have jurisdiction over flooding and unlawful fishing nets in that part of the thames river that flows next to it. the city of london shall have jurisdiction to enforce free passage of boats on the thames river in the city, interruption of which carries a fine of s., two-thirds to the king and one third to the suer. jurors impaneled in london shall be of lands, tenements, or goods and chattels, to the value of s. and if the case concerns debt or damages at least s, the jurors shall have lands, tenements, goods, or chattels, to the value of s. this is to curtail the perjury that has gone on with jurors of little substance, discretion, and reputation. a party grieved by a false verdict of any court in london may appeal to the hustings court of london, which hears common pleas before the mayor and aldermen. each of the twelve alderman shall pick from his ward four jurors of the substance of at least , s. to be impaneled. if twenty-four of them find that the jurors of the petty jury has given an untrue verdict, each such juror shall pay a fine of at least s. and imprisonment not more than six months without release on bail or surety. however, if it is found that the verdict was true, then the grand jury may inquire if any juror was bribed. if so, such juror bribed and the defendant who bribed him shall each pay ten times the amount of the bribe to the plaintiff and be imprisoned not more than six months without release on bail or surety. the bishop's court in london had nine offenders a week by . half of these cases were for adultery and sexual offenses, and the rest were for slander, blasphemy, missing church services, and breach of faith. punishment was penance by walking barefoot before the cross in the sunday procession dressed in a sheet and holding a candle. the following is an example of a case in the chancery court. "a subpoena was sued against sir william capell in chancery because the plaintiff in the subpoena had borrowed pounds from him in plate, which he sold for pounds, and was also bound by a statute-merchant to the aforesaid sir william in pounds for payment of this money, and had also made a feoffment to certain persons of certain land and by indenture willed that if he paid the pounds the feoffees should be feooffees to his use, but otherwise they should be feoffees to the use of the said sir william; and he did not pay the money and so sir william took the profits of the land and sued execution of the statute-merchant. kebell thought he could have this land in conscience, even though he had execution of the statute-merchant, because he does not have this land in return for the money in such a way that he is paid twice, but has it by way of penalty; and (the plaintiff) may bind himself to that, just as he may give the land away for nothing. if someone holds of me in return for one penny of rent, he may bind himself in pounds for payment of this rent and if he fails i may have this penalty in conscience. the chancellor. when someone is beholden in another in a principal debt, the debtee cannot in conscience take anything in respect of this indebtedness except the principal debt, even if the debtor is bound to him in twenty penalties. kebell. in that case you might do much good to those who are bound in this court to keep the peace and are to forfeit their bonds. the chancellor. the sum which is forfeited for breaking the peace may be taken in conscience, for nothing can be well done nor can the realm be governed without peace. this court could not be held without peace. therefore it is right that whoever acts against the peace should be punished. and by breaking the peace a crime is committed, and therefore it is right that he should pay this forfeiture. (but the chancellor held in this case that the debtee may in conscience take so much of the penalty as represents his damage by the withholding of the debt.)" this is the case of the earl of suffolk v. berney in the common pleas court: " if the parker of a park licences a man to kill deer in the park, and he kills a deer by virtue of this licence, both of them commit trespass; for he has no authority to do this, his authority being to keep and not to give or sell. but if someone has a warrant to take a deer, and he is a gentleman, he may take company with him and hunt there for the same deer according to his degree (but not otherwise). and it was held that if a parker has a warrant for a deer, and by virtue of that he requests various people to help him kill this deer, everyone who goes with him may chase after it by licence from the parker by parol, without writing." an example of a manorial case is: "and they present that margaret edmond, who held of the lord according to the custom of the manor one cottage with curtilage, four acres of land and one acre of meadow lately in the tenure of william crosse, took as her husband a certain unknown outsider without the lord's licence. therefore she forfeited her estate in the aforesaid cottage and land, by reason of which there accrues to the lord as a heriot one heifer, price s. and thereupon william staunton came and took the said cottage, land and meadow from the lord, to hold to himself and his according to the custom of the manor, rendering s. therein to the lord yearly at the terms usual there, thus d. yearly of increment for rent. and he will give the lord s. in the name of heriot when it should accrue.. and he gives nothing to the lord as a fine, but he did fealty to the lord. another manorial case is: and that john mille, who held of the lord for the term of his life according to the custom of the aforesaid manor as of the part of thomas long, knight, one messuage and three yardlands of land there by the rent and services therein owed, has ended his last day since the last court, whereof there accrues to the lord as heriot one horse, price s. and that edith, the wife of the said john, claims to hold the aforesaid messuage and land with the appurtenances while she should keep herself single and chaste according to the custom of the aforesaid manor. and she did fealty to the lord. and she was admitted as tenant therein by the pledge of william spenser and john smyth, both for the matter and for repair of the aforesaid tenement etc."` chapter the times: - renaissance humanism came into being in the nation. in this development, scholars in london, oxford, and cambridge emphasized the value of classical learning, especially platonism and the study of greek literature as the means of better understanding and writing. they studied the original greek texts and became disillusioned with the filtered interpretations of the church, for example of the bible and aristotle. there had long been displeasure with the priests of the church. they were supposed to preach four times yearly, visit the sick, say the daily liturgies, and hear confessions at least yearly. but there were many lapses. many were not celibate, and some openly lived with a woman and had children. complaints about them included not residing within their parish community, doing other work such as raising crops, and taking too much in probate, mortuary fees, and marriage fees. probate fees had risen from at most s. to s. in the last hundred years. mortuary fees ranged from / to / of a deceased person's goods. sanctuary was abused. people objected to the right of arrest by ecclesiastical authorities. also, most parish priests did not have a theology degree or even a bachelor's degree, as did many laymen. in fact, many laymen were better educated than the parish priests. no one other than a laborer was illiterate in the towns. humanist grammar [secondary] schools were established in london by merchants and guilds. in , the founder and dean of st. paul's school placed its management in the hands of london "citizens of established reputation" because he had lost confidence in the good faith of priests and noblemen. the sons of the nobility, attorneys, and merchants were starting to go to grammar school now instead of being taught at home by a tutor. at school, they mingled with sons of yeomen, farmers, and tradesmen, who were usually poor. the usual age of entry was six or seven. classical latin and greek were taught and the literature of the best classical authors was read. secondary education teachers were expected to know latin and have studied the ancient philosophers, history, and geography. the method of teaching was for the teacher to read textbooks to the class from a prepared curriculum. the students were taught in latin and expected not to speak english in school. they learned how to read and to write latin, to develop and amplify a theme by logical analysis, and to essay on the same subject in the narrative, persuasive, argumentative, commending, consoling, and inciting styles. they had horn books with the alphabet and perhaps a biblical verse on them. this was a piece of wood with a paper on it held down by a sheet of transparent horn. they also learned arithmetic (solving arithmetical problems and casting accounts). disobedience incurred flogging by teacher as well as by parents. spare the rod and spoil the child was the philosophy. schools now guarded the morals and behavior of students. there were two week vacations at christmas and at easter. royal grammar books for english and latin were proclaimed by henry in to be the only grammar book authorized for students. in , he proclaimed a certain primer of prayers in english to be the only one to be used by students. the first school of humanist studies arose in oxford with the foundation of corpus christi college in by bishop richard fox. it had the first permanent reader or professor in greek. the professor of humanity was to extirpate all barbarisms by the study of cicero, sallust, valerius maximus, and quintilian. the reader of theology was to read texts of the holy fathers but not those of their commentators. oxford university was granted a charter which put the greater part of the town under control of the chancellor and scholars. the mayor of oxford was required to take an oath at his election to maintain the privileges and customs of the university. roman law and other regius professorships were founded by the king at oxford and cambridge. teaching of undergraduates was the responsibility of the university rather than of the colleges, though some colleges had live-in teachers. most colleges were exclusively for graduate fellows, though this was beginning to change. the university took responsibility for the student's morals and behavior and tutors sometimes whipped the undergraduates. for young noblemen, a more important part of their education than going to university was travel on the continent with a tutor. this exposure to foreign fields was no longer readily available through war or pilgrimage. the purpose was practical - to learn about foreign people and their languages, countries, and courts. knowledge of the terrain, resources, prosperity, and stability of their countries was particularly useful to a future diplomatic or political career. understanding of the celestial world began to change. contemporary thought was that the nature of all things was to remain at rest, so that movement and motion had to be explained by causes. the earth was stationary and the heavens were spherical and revolved around the earth every twenty-four hours. the universe was finite. the firmament extended outward in a series of rotating, crystalline, ethereal spheres to which were attached the various points of celestial geography. first came the circle of the moon. the sun orbited the earth. the fixed stars rotated on an outer firmament. finally, there was the abode of god and his heavenly hosts. different principles ruled the celestial world; it was orderly, stable, ageless, and enduring. but the world of man changed constantly due to its mixed four elements of air, earth, fire, and water each trying to disentangle itself from the others and seeking to find its natural location. the heavenly spheres could affect the destinies of men, such as through fate, fortune, intelligence, cherubim, seraphim, angels, and archangels. astrologers read the celestial signs and messages. then a seed of doubt was cast on this theory by nicholaus copernicus, a timid monk in poland, who found inconsistencies in ptolemy's work, but saw similarity in the movements of the earth and other planets. he inferred from the "wandering" planetary movements with loops that their motion could be explained simply if they were revolving in circular paths around the sun, rather than around the earth. in his book of , he also expressed his belief that the earth also revolved around the sun. this idea so shocked the world that the word "revolution" became associated with radical change. he thought it more likely that the earth rotated than that the stars moved with great speed in their large orbits. he proposed that the earth spins on its own axis about once every twenty-four hours, with a spin axis at about a / degree tilt from the orbital axis, thus explaining a slow change in the overall appearances of the fixed stars which had been observed since the time of ptolemy. he deduced from astronomical measurements that the correct order of the planets from the sun was: mercury, venus, earth, mars, jupiter, and saturn. the church considered his ideas heretical because contradictory to its dogma that man and the earth were the center of the universe. a central sun evoked images of pagan practices of sun worship. news of new ideas in science traveled quickly to english scholars and professionals. the physicians of london were incorporated to oversee and govern the practice of medicine. medicine consisted largely of magical remedies of sorcerers and astrologers and herbal remedies administered by quacks. people still generally believed that disease was caused by witches and demons. a faculty of physicians was established at oxford and cambridge. a royal college of physicians was founded in london in by the king's physician. the college of physicians taught more practical medicine and anatomy than the universities. only graduates of the college of physicians or of oxford or cambridge were allowed to practice medicine or surgery. medical texts were hippocrates and galen. these viewed disease as only part of the process of nature without anything divine. they stressed empiricism, experience, collections of facts, evidences of the senses, and avoidance of philosophical speculations. some observations of hippocrates were: -"when sleep puts an end to delirium, it is a hopeful sign." -"when on a starvation diet, the patient should not be allowed to become fatigued." "old men usually have less illness than young ones, but such as they have last, as a rule, till death." "pleurisy, pneumonia, colds, sore throat, and headache are more likely to occur during winter seasons." "when one oversleeps, or fails to sleep, the condition suggests disease." hippocrates had asserted that madness was simply a disease of the brain and then galen had agreed and advocated merciful treatment of the insane. galen's great remedies were proper diet, exercise, massage, and bathing. he taught the importance of a good water supply and good drainage. he advised that baking bread in a large oven was superior to cooking in a small oven, over ashes, or in a pan in wholesomeness, digestibility, and flavor. greek medicinal doctrines were assumed, such as that preservation of the health of the body was dependent on air, food, drink, movement and repose, sleeping and waking, excretion and retention, and the passions. it was widely known that sleep was restorative and that bad news or worry could spoil one's digestion. an italian book of showed that post-mortem examinations could show cause of death by gallstones, heart disease, thrombosis of the veins, or abscesses. in began the practice of giving bodies of hanged felons to surgeons to dissect. this was to deter the commission of felony. there was some feeling that dissection was a sacrilege, that the practice of medicine was a form of sorcery, and that illness and disease should be dealt with by prayer and/or atonement because caused by sin, the wrath of god, or by the devil. food that was digested was thought to turn into a vapor which passed along the veins and was concreted as blood, flesh, and fat. after , there was a book listing hundreds of drugs with preparation directions, but their use and application was by trial and error. flemish physician andreas vesalius, secretly dissected human corpses, finding them hanging on public gibbets or competing with dogs for those incompletely buried in cemeteries. he begged doctors to allow him to examine the bodies of their fatal cases. he ingratiated himself with judges who determined the time and place of execution of criminals. in he published the first finely detailed description of human anatomy. in it, there was no missing rib on one side of man, and this challenged the theory of the woman eve having been made from a rib of the man adam. in the s, ambroise pare from france, a barber-surgeon who was the son of a servant, was an army surgeon. wounds at this time were treated with boiling oil and spurting vessels were closed by being seared with a red-hot iron. after he ran out of boiling oil, he observed that the soldiers without this treatment were healing better than those with this treatment. so he advocated ceasing the practice of cauterizing wounds. he also began tying arteries with cord to stop their bleeding after amputation many other surgical techniques. in switzerland, theophrastus paracelsus, an astrologer and alchemist who later became a physician, did not believe that humor imbalance caused disease nor in treatment by bloodletting or purging. he believed that there were external causes of disease, e.g. toxic matter in food, contagion, defective physical or mental constitution, cosmic influences differing with climate and country, or affliction sent providence. he urged that wounds be kept clean rather than given poultices. in , he pioneered the application of chemistry to physiology, pathology, and the treatment of disease by starting clinical diagnosis and treatment of disease by highly specific medicines, instead of by cure-alls. for instance, he used alkalis to treat disease, such as gout, indicated by certain substances in the urine, which also started urinalysis. he perceived that syphilis was caused by contagion and used mercury to cure it. he found curative powers also in opium, sulphur, iron, and arsenic. opium was made by drying and cooking the capsule of the poppy and was one of the few really effective early drugs. paracelsus urged alchemists to try to prepare drugs from minerals for the relief of suffering. he claimed to acquire knowledge of cures through spiritual contacts to occult wisdom. he believed that a human being has an invisible body as well as a visible one and that it is closely attuned to imagination and the spiritual aspect of an individual. he noticed that one's attitudes and emotions, such as anger, could affect one's health. he sometimes used suggestion and signs to help a patient form mental images, which translated into cures. he saw insanity as illness instead of possession by evil spirits. students were beginning to read for the bar by their own study of the newly available printed texts, treatises, and collections of statute law and of cases, instead of listening in court and talking with attorneys. in , anthony fitzherbert wrote "boke of husbandry", which set forth the most current methods of arable farming, giving details of tools and equipment, advice on capital outlay, methods of manuring, draining, ploughing, and rick-building. it was used by many constantly, and was often carried around in the pocket. this began a new way to disseminate new methods in agriculture. he also wrote a "boke of surveying", which relied on the perch rod and compass dial, and gave instruction on how to set down the results of a survey. in , gemma frisius laid down the principles of topographical survey by triangulation. this improved the quality of surveys and produced accurate plots. geoffrey chaucer's "canterbury tales" was a popular book. through chaucer, london english became a national standard and the notion of "correct pronunciation" came into being.the discoveries and adventures of amerigo vespucci, a portuguese explorer, were widely read. the north and south american continents were named for him. london merchant guilds began to be identified mainly with hospitality and benevolence instead of being trading organizations. twelve great companies dominated city politics and effectively chose the mayor and aldermen. they were, in order of precedence, mercers, grocers, drapers, fishmongers, goldsmiths, skinners, tailors, haberdashers, ironmongers, salters, vintners, and the clothworkers (composed from leading fullers and shearmen). the leading men of these guilds were generally aldermen and the guilds acted like municipal committees of trade and manufactures. then they superintended the trade and manufactures of london much like a government department. they were called livery companies and categorized their memberships in three grades: mere membership, livery membership, and placement on the governing body. livery members were distinguished by having the clothing of the brotherhood [its livery] and all privileges, and proprietary and municipal rights, in the fullest degree. they generally had a right to a place at the company banquets. they were invited by the governing body, as a matter of favor, to other entertainments. these liverymen were usually those who had bought membership and paid higher fees because they were richer. their pensions were larger than those of mere members. those with mere membership were freemen who had only the simple freedom of the trade. the masters were usually householders. the journeymen, yeomanry, bachelors were simple freemen. most of these companies had almshouses attached to their halls for the impoverished, disabled, and elderly members and their widows and children. for instance, many members of the goldsmiths had been blinded by the fire and smoke of quicksilver and some members had been rendered crazed and infirm by working in that trade. the freedom and rights of citizenship of the city could only be obtained through membership in a livery company. a lesser guild, the leathersellers, absorbed the glovers, pursers, and pouchmakers, some of whom became wage earners of the leathersellers. but others of these craftsmen remained independent. the whittawyers, who treated horse, deer, and sheep hides with alum and oil, had become wage earners for the skinners. londoners went to the fields outside the city for recreation and games. when farmers enclosed some suburban common fields in , a crowd of young men marched out to them and, crying "shovels and spades", uprooted the hedges and filled in the ditches, thus reclaiming the land for their traditional games. the last major riot in london was aroused by a speaker on may day in when a thousand disorderly young men, mostly apprentices, defied the curfew and looted shops and houses of aliens. a duke with two thousand soldiers put it down in mid-afternoon, after which the king executed fifteen of the rioters. many english migrated to london. there were ambitious young men and women hopeful of betterment through employment, apprenticeship, higher wages, or successful marriage. on the other hand, there were subsistence migrants forced to leave their homes for food, work, or somewhere to live. there was much social mobility. for instance, between and , of persons admitted as freemen of london, were the sons of gentlemen, the sons of yeomen, and the sons of farm workers. london grew in population about twice as fast as the nation. there are wards of london as of . this is the number for the next four centuries. each ward has an alderman, a clerk, and a chief constable. there are also in each ward about to elected officials including prickers, benchers, blackbootmen, fewellers [keepers of greyhounds], scribes, a halter-cutter, introducers, upperspeakers, under speakers, butlers, porters, inquestmen, scavengers, constables, watchmen, a beadle, jurymen, and common councilmen. the wardmote had inquest jurisdiction over immorality or bad behavior such as vagrancy, delinquency, illegitimacy, and disputes. this contributed greatly to social stability. in , henry ordered the london brothels closed. a small gaol was established in the clink district of southwark, giving the name "clink" to any small gaol. london ordinances required journeymen to work from a.m. to p.m. in winter, with a total of minutes breaks for breakfast, dinner, and an afternoon drink, for d. in the summer they had to work for two hours longer for d. at its peak in the s the court employed about gentlemen, which was about half the peerage and one-fifth of the greater gentry. henry issued a proclamation ordering noblemen and gentlemen in london not employed by the court to return to their country homes to perform their service to the king. though there was much agreement on the faults of the church and the need to reform it, there were many disagreements on what philosophy of life should take the place of church teachings. the humanist thomas more was a university trained intellectual. his book "utopia", idealized an imaginary society living according to the principles of natural virtue. in it, everything is owned in common and there is no need for money. all believe that there is a god who created the world and all good things and who guides men, and that the soul is immortal. but otherwise people choose their religious beliefs and their priests. from this perspective, the practices of other christians, scholastic theologians, priests and monks, superstition, and ritual looked absurd. more encouraged a religious revival. aristotle's position that virtuous men would rule best is successfully debated against plato's position that intellectuals and philosophers would be the ideal rulers. more believed the new humanistic studies should be brought to women as well as to men. he had tutors teach all his children latin, greek, logic, theology, philosophy, mathematics, and astronomy from an early age. his eldest daughter margaret became a recognized scholar and translated his treatise on the lord's prayer. other high class women became highly educated. they voiced their opinions on religious matters. in the s, the duchess of suffolk spoke out for reform of the clergy and against images, relics, shrines, pilgrimages, and services in latin. she and the countess of sussex supported ministers and established seminaries for the spread of the reformed faith. more pled for proportion between punishment and crime. he urged that theft no longer be punished by death because this only encouraged the thief to murder his victim to eliminate evidence of the theft. he opined that the purpose of punishment was to reform offenders. he advocated justice for the poor to the standard of justice received by the rich. erasmus, a former monk, visited the nation for a couple of years and argued that reason should prevail over religious belief. he wrote the book "in praise of folly", which noted man's elaborate pains in misdirected efforts to gain the wrong thing. for instance, it questioned what man would stick his head into the halter of marriage if he first weighed the inconveniences of that life? or what woman would ever embrace her husband if she foresaw or considered the dangers of childbirth and the drudgery of motherhood? childhood and senility are the most pleasant stages of life because ignorance is bliss. old age forgetfulness washes away the cares of the mind. a foolish and doting old man is freed from the miseries that torment the wise and has the chief joy of life: garrulousness. the seekers of wisdom are the farthest from happiness; they forget the human station to which they were born and use their arts as engines with which to attack nature. the least unhappy are those who approximate the naiveness of the beasts and who never attempt what is beyond men. as an example, is anyone happier than a moron or fool? their cheerful confusion of the mind frees the spirit from care and gives it many-sided delights. fools are free from the fear of death and from the pangs of conscience. they are not filled with vain worries and hopes. they are not troubled by the thousand cares to which this life is subject. they experience no shame, fear, ambition, envy, or love. in a world where men are mostly at odds, all agree in their attitude towards these innocents. they are sought after and sheltered; everyone permits them to do and say what they wish with impunity. however, the usual opinion is that nothing is more lamentable than madness. the christian religion has some kinship with folly, while it has none at all with wisdom. for proof of this, notice that children, old people, women, and fools take more delight than anyone else in holy and religious things, led no doubt solely by instinct. next, notice that the founders of religion have prized simplicity and have been the bitterest foes of learning. finally, no people act more foolishly than those who have been truly possessed with christian piety. they give away whatever is theirs; they overlook injuries, allow themselves to be cheated, make no distinction between friends and enemies, shun pleasure, and feast on hunger, vigils, tears, labors, and scorn. they disdain life, and utterly prefer death. in short, they have become altogether indifferent to ordinary interests, as if their souls lived elsewhere and not in their bodies. what is this, if not to be mad? the life of christians is run over with nonsense. they make elaborate funeral arrangements, with candles, mourners, singers, and pallbearers. they must think that their sight will be returned to them after they are dead, or that their corpses will fall ashamed at not being buried grandly. christian theologians, in order to prove a point, will pluck four or five words out from different places, even falsifying the sense of them if necessary, and disregard the fact that their context was relevant or even contradicted their points. they do this with such brazen skill that our attorneys are often jealous of them. attorney christopher st. german wrote the legal treatise "doctor and student", in which he deems the law of natural reason to be supreme and eternal. the law of god and the law of man, as enunciated by the church and royalty, merely supplement the law of natural reason and may change from time to time. examples of the law of reason are: it is good to be loved. evil is to be avoided. do onto others as you would have them do unto you. do nothing against the truth. live peacefully with others. justice is to be done to every man. no one is to wrong another. a trespasser should be punished. from these is deduced that a man should love his benefactor. it is lawful to put away force with force. it is lawful for every man to defend himself and his goods against an unlawful power. like his father, henry viii dominated parliament. he used this power to reform the church of england in the 's. the protestant reformation cause, started in germany in by martin luther posting his thesis, had become identified with henry's efforts to have his marriage of eighteen years to the virtuous catherine annulled so he could marry a much younger woman: anne and have a son. the end of his six successive wives was: annulled, beheaded, died; annulled, beheaded, survived. henry viii was egotistical, arrogant, and self- indulgent. this nature allowed him to declare himself the head of the church of england instead of the pope. henry used and then discarded officers of state. one such was thomas wolsey, the son of a town grazier [one who pastures cattle and rears them for market] and butcher, who was another supporter of classical learning. he rose through the church, the gateway to advancement in a diversity of occupations of clergy such as secretary, librarian, teacher, attorney, doctor, author, civil servant, diplomat, and statesman. he was a court priest when he aligned himself with henry, both of whom wanted power and glory and dressed extravagantly. but he was brilliant and more of a strategist than henry. wolsey called himself a reformer and started a purge of criminals, vagrants and prostitutes within london, bringing many before the council. but most of his reforming plans were not brought to fruition, but ended after his campaign resulted in more power for himself. wolsey rose to be chancellor to the king and also archbishop of york. as the representative of the pope for england, he exercised almost full papal authority there. but he controlled the church in england in the king's interest. he was second only to the king and he strengthened the crown by consolidating power and income that had been scattered among nobles and officeholders. he also came to control the many courts. wolsey centralized the church in england and dissolved the smaller monasteries, the proceeds of which he used to build colleges at oxford and his home town. he was an impartial and respected justice. when wolsey was not able to convince the pope to give henry an annulment of his marriage, henry dismissed him and took his property, shortly after which wolsey died on his way to be imprisoned in the tower to be tried for treason. thomas. cromwell, a top royal official, was a self-taught attorney, arbitrator, merchant, and accountant. he was the son of a clothworker/blacksmith/brewer/innkeeper, like wolsey, he was a natural orator. he drafted and had passed legislation that created a new church of england. he had all men swear an oath to the terms of the succession statute. thomas more, the successor chancellor to wolsey, was known for his honesty and was a highly respected man. more did not yield to henry's bullying for support for his statute declaring the succession to be vested in the children of his second marriage, and his statute declaring himself the supreme head of the church of england, instead of the pope. he did not expressly deny this supremacy statute, so was not guilty of treason under its terms. but silence did not save him. he was attainted for treason on specious grounds and beheaded. his conviction rested on the testimony of one perjured witness, who misquoted more as saying that parliament did not have the power to require assent to the supremacy statute because it was repugnant to the common law of christendom. henry ruled with an iron fist. in , he issued a proclamation that "any rioters or those in an unlawful assembly shall return to their houses" or "we will proceed against them with all our royal force and destroy them and their wives and children." in , he proclaimed that anyone hurting or maiming an officer while trying to make an arrest "shall lose and forfeit all their lands, goods, and chattel" and shall suffer perpetual imprisonment. moreover, if one murdered such an officer, he would suffer death without privilege of sanctuary or of clergy. in , he proclaimed that there would be no shooting by handgun except on a shooting range. henry had parliament pass bills of attainder against many people. for the first time, harsh treatment of prisoners in the tower, such as placement in dungeons with little food, no bed, and no change of clothes, became almost a matter of policy. through his host of spies, cromwell heard what men said to their closest friends. words idly spoken were distorted into treasonable utterances. fear spread through the people. silence was a person's only possibility of safety. cromwell developed a technique for the management of the house of commons which lasted for generations. he promulgated books in defense of royal spiritual authority, which argued that canon law was not divine but merely human and that clerical authority had no foundation in the bible. a reformed english bible was put in all parish churches. reformers were licensed to preach. cromwell ordered sermons to be said which proclaimed the supremacy of the king. he instituted registers to record baptisms, marriages, and burials in every county, for the purpose of reducing disputes over descent and inheritance. he dissolved all the lesser monasteries. when cromwell procured a foreign wife for henry whom henry found unattractive, he was attainted and executed. henry now reconstructed his council to have a fixed membership, an official hierarchy based on rank, a secretariat, an official record, and formal powers to summon individuals before it by legal process. because it met in the king's privy lodgings, it was called the "privy council". it had an executive function and met daily instead of just during the terms of the westminster courts from late autumn to early summer. it communicated with the king through intermediaries, of whom the most important was the king's secretary. the judicial part of the council was the court of the star chamber, which met at westminster. when henry went to war in france, part of the council went with him, and part of it stayed to attend the queen regent. thomas cranmer, archbishop of canterbury, wrote the first english common book of prayer. with its use beginning in , church services were to be held in english instead of latin. the celebration of the lord's supper was a communion among the parishioners and minister all sharing wine and bread. it replaced the mass, in which the priests were thought to perform a miraculous change of the substance of bread and wine into the body and blood of christ, which the priest then offered as a sacrifice for remission of pain or guilt. this reflected the blood sacrifice of christ dying on the cross. in the mass, only the priests drank the wine. the mass, miracles, the worship of saints, prayers for souls in purgatory, and pilgrimages to shrines such as that of thomas becket, were all to be discontinued. imprisonment or exile rather than death was made the penalty for heresy and blasphemy, and also for adultery. after the king dissolved the greater monasteries, he took and sold their ornaments, silver plate and jewelry, lead from roofs of their buildings, and finally much of the land itself. many maps of manors and lands were made at this time. three monasteries were converted into the first three treating hospitals in london, one for the diseased, one for the poor, and one, bethlehem (or "bedlam" for short), for the mentally ill. but there were still many poor, sick, blind, aged, and impotent people in the streets since the closure of the monasteries. in , there were , people in need of relief, including orphans, sick or aged, poor men overburdened with their children, decayed householders, and idle vagabonds. the poor often begged at parishes, where they spread disease. london then set up a poor relief scheme. the bridewell was established to set to work the idle, vagabonds, and prostitutes making feather bed ticks and wool-cards, drawing of wire, carding, knitting, and winding of silk. parishes were required to give money for the poor in . other towns followed london's lead in levying a poor rate. henry used the proceeds from the sale of the monasteries for building many new palaces and wood ships for his navy. in war, these navy ships had heavy guns which could sink other ships. in peace time, these ships were hired out to traders. large ships were constructed in docks, made partly by digging and partly by building walls. in , henry issued a proclamation ordering all vagabonds, ruffians, masterless men, and evil-disposed persons to serve him in his navy. the former land of the monasteries, about % of the country's land, was sold and resold, usually to great landowners, or leased. title deeds became important as attorneys sought the security that title could give. some land went to entrepreneurial cloth manufacturers, who converted the buildings for the manufacture of cloth. they bought the raw wool and hired craftsmen for every step of the manufacturing process to be done in one continuous process. this was faster than buying and selling the wool material between craftsmen who lived in different areas. also, it was more efficient because the amount of raw wool bought could be adjusted to the demand for cloth. many landowners now could live in towns exclusively off the rents of their rural land. rents were increased so much that tenants could not pay and were evicted. they usually became beggars or thieves. much of their former land was converted from crop raising to pasture for large herds of sheep. arable farming required many workers, whereas sheep farming required only one shepherd and herdsman. there were exceptional profits made from the export of wool cloth. but much raw wool was still exported. its price went up from s. d. per tod [about pounds] in to s. d. in . villeinage was now virtually extinct. but a lord could usually claim a small money-rent from the freeholder, sometimes a relief when his land was sold or passed at death, and occasionally a heriot from his heir. there was steady inflation. landlords made their leases short term so that they could raise rents as prices rose. copyholders gradually acquired a valuable right in their holdings: their rent became light - less that a shilling an acre. the knights had % of the land, the nobles %, the church %, and king %. at least % of the population still lived in the country. rich traders built town or country houses in which the emphasis was on comfort and privacy. there was more furniture, bigger windows filled with glass, thick wallpaper, and formal gardens. use of thick, insulating wallpaper rose with the rise of paper mills. it was stenciled, hand-painted, or printed. some floors were tiled instead of stone or wood. they were still strewn with straw. the owners ate in a private dining room and slept in their own rooms with down quilts. their soap was white. they had clothing of white linen and white wool, leather slippers, and felt hats. men wore long tunics open at the neck and filled in with pleated linen and enormous puffed sleeves. the fortunes of landowners varied; some went into aristocratic debt by ostentatiously spending on building, clothes, food, and drink, and some became indebted by inefficient management. some had to sell their manors and dismiss their servants. all people generally had enough food because of the commercialization of agriculture. even the standard meal of the peasant was bread, bacon, cheese, and beer or cider, with beef about twice a week. also, roads were good enough for the transport of foodstuffs thereon. four-wheeled wagons for carrying people as well as goods. goods were also transported by the pulling of barges on the rivers from paths along the river. a plough with wheels was used as well as those without. henry made proclamations reminding people of the apparel laws, but they were difficult to enforce. henry also made a proclamation limiting the consumption of certain meat according to status. seven dishes were allowed to bishops, dukes, marquises, and earls; six to other temporal lords; five to justices, the king's council, sheriffs, and persons with an income of at least pounds yearly or goods worth pounds; four to persons with an income of at least pounds or goods worth pounds; and three dishes to persons with an income of at least pounds or goods worth pounds. there were limits on types of meat served, such as a maximum of one dish of great fowl such as crane, swan, and peacock; eight quail per dish; and twelve larks in a dish. people used tin or pewter dishes, platters, goblets, saucers, spoons, saltcellars, pots, and basins. they used soap to wash themselves, their clothes, and their dishes. a solid, waxy soap was from evaporating a mixture of goat fat, water, and ash high in potassium carbonate. they had bedcovers on their beds. cloth bore the mark of its weaver and came in many colors. cloth could be held together with pins that had a shank with a hook by which they were closed. they burned wood logs in the fireplaces in their houses. so much wood was used that young trees were required by statute to be given enough lateral space to spread their limbs and were not cut down until mature. the organ and the harp, precursor to the piano, were played. people went to barbers to cut their hair and to extract teeth. they went to people experienced with herbs, roots, and waters for treatment of skin conditions such as sores, cuts, burns, swellings, irritated eyes or scaly faces. for more complicated ailments, they went to physicians, who prescribed potions and medicines. they bought potions and medicines from apothecaries and pharmacists. the king, earls, who ruled counties, and barons, who had land and a place in the house of lords, still lived in the most comfort. the king's house had courtyards, gardens, orchards, wood-yards, tennis courts, and bowling alleys. the walls of the towns were manned by the citizens themselves, with police and watchmen at their disposal. in inns, travelers slept ten to a bed and there were many fleas and an occasional rat or mouse running through the rushes strewn on the floor. the inn provided a bed and ale, but travelers brought their own food. each slept with his purse under his pillow. in markets, sellers set up booths for their wares. they sold grain for making oatmeal or for sowing one's own ground. wine, butter, cheese, fish, chicken, and candles could also be bought. butchers bought killed sheep, lambs, calves, and pigs to cut up for selling. tanned leather was sold to girdlemakers and shoemakers. goods bought in markets were presumed not to be stolen, so that a purchaser could not be dispossessed of goods bought unless he had knowledge that they were stolen. the ruling group of the towns came to be composed mostly of merchants, manufacturers, attorneys, and physicians. some townswomen were independent traders. the governed class contained small master craftsmen and journeyman artisans, small traders, and dependent servants. the major streets of london were paved with stone, with a channel in the middle. more water conduits from hills, heaths, and springs were built to provide the citizens of london with more water. the sewers carried only surface water away. households were forbidden to use the sewers. privies emptied into cesspools. the merchant adventurers' fellowship brought virtually all adventurers under its control and organized and regulated the national cloth trade. it had a general court of the adventurers sitting in the london mercers' hall. various companies were granted monopolies for trade in certain areas of the world such as turkey, spain, france, venice, the baltic, and africa. these were regulated companies. that is they obtained complete control of a particular foreign market, but any merchant who cared to join the company, pay its dues, and obey its regulations, might share in the benefits of its monopoly. the companies generally confined trade to men who were primarily merchants and not shopkeepers. in explorer sebastian cabot formed the muscovy company, which was granted a monopoly in its charter for trade with north russia. it was oriented primarily to export english woolen cloth. it was the first company trading on a joint stock, which was arranged as a matter of convenience and safety. the risks were too great for any few individuals. it hired ships and assigned space to each member to ship his goods at his own risk. the dividend was returned to the subscribers of the capital they put in plus an appropriate share of any profits made on the voyage. the members began leaving their money with the company for the next voyage. a general stock grew up. in were the first industrial companies: mines royal, and mineral and battery works. the cloth, mining, iron, and woodcraft industries employed full-time workers on wages. in the ironworks and foundries, the furnace blowing engines were worked by water wheels or by a gear attached to donkeys or horses. the forge hammers were worked at first by levers and later by water wheels. the day and night hammering filled the neighborhood with their noise. land held in common was partitioned. there were leases of mansion houses, smaller dwelling houses, houses with a wharf having a crane, houses with a timber yard, houses with a garden, houses with a shed, shops, warehouses, cellars, and stables. lands with a dye-house or a brew-house were devised by will along with their dying or brewing implements. there were dairies making butter and cheese. citizens paid taxes to the king amounting to one tenth of their annual income from land or wages. merchants paid "forced loans" and benevolences. the national government was much centralized and had full-time workers on wages. a national commission of sewers continually surveyed walls, ditches, banks, gutters, sewers, ponds, bridges, rivers, streams, mills, locks, trenches, fish- breeding ponds, and flood gates. when low places were threatened with flooding, it hired laborers, bought timber, and hired carts with horses or oxen for necessary work. mayors of cities repaired water conduits and pipes under their cities' ground. the matchlock musket came into use, but did not replace the bow because its matchcord didn't remain lit in rainy weather. the matchlock was an improvement over the former musket because both hands could be used to hold and aim the matchlock musket because the powder was ignited by a device that touched a slow-burning cord to the powder when a trigger was pulled with one finger. after the break with rome, cooperation among villagers in church activities largely ceased. the altars and images previously taken care of by them disappeared and the paintings on the walls were covered with white or erased, and scripture texts put in their place. people now read the new bible, the "paraphrases" of erasmus, foxe's "book of martyrs", and the works of bishop jewel. the book of martyrs taught the duty and splendor of rising above all physical danger or suffering. the canon law of the church was abolished and its study prohibited. professorships of the civil law were founded at the two universities. the inns of court grew. attorneys had more work with the new laws passed to replace the church canons of the church. they played an important role in town government and many became wealthy. they acquired town houses in addition to their rural estates. church reforms included abolishing church sanctuaries. benefit of clergy was restricted more. parsons were allowed to marry. archbishops were selected by the king without involvement by the pope. decisions by archbishops in testamentary, matrimonial, and marriage annulment matters were appealable to the court of chancery instead of to the pope. the clergy's canons were subject to the king's approval. the control of the church added to the powers of the crown to summon and dissolve parliament, coin money, create peers [members of the house of lords who received individual writs of summons to parliament], pardon criminals, order the arrest of dangerous persons without customary process of law in times of likely insurrection, tax and call men to arms without the consent of parliament if the country were threatened with invasion. about there began indictments and executions for witchcraftery which lasted for about a century. one of the reasons for suspecting a woman to be a witch was that she lived alone, which was very unusual. henry ordered all alien anabaptists, who denied the validity of infant baptism, to leave the realm. the law offices may not be bought and sold, but only granted by justices of the royal courts. the king's proclamations shall be observed and kept as though they were acts of parliament. the penalty shall not be more than that stated in the proclamation, except for heresy. a person having land in socage or fee simple may will and devise his land by will or testament in writing. a person holding land by knight's service may will and devise by his last will and testament in writing part of his land to his wife and other parts of his land to his children, as long as / of entailed land is left to the king. anyone serving the king in war may alienate his lands for the performance of his will, and if he dies, his feoffees or executors shall have the wardship of his heir and land. a person who leases land for a term of years, even if by indenture or without a writing, may have a court remedy as do tenants of freehold for any expulsion by the lessor which is contrary to the lease, covenant, or agreement. these termers, their executors and assigns, shall hold and enjoy their terms against the lessors, their heirs and assigns. the lessor shall have a remedy for rents due or waste by a termer after recovering the land as well as if he had not recovered the land. a lord may distrain land within his fee for rents, customs, or services due without naming the tenant, because of the existence of secret feoffments and leases made by their tenants to unknown persons. anyone seised of land to the use or trust of other persons by reason of a will or conveyance shall be held to have lawful seisin and possession of the land, because by common law, land is not devisable by will or testament, yet land has been so conveyed, which has deprived married men of their courtesy, women of their dower, the king of the lands of persons attainted, the king of a year's profits from felons' lands, and lords of their escheats. (this was difficult to enforce.) a woman may not have both a jointure [promise of husband to wife of property or income for life after his death] and dower of her husband's land. (persons had purchased land to hold jointly with their wives) a sale of land must be in writing, sealed, and registered in its county with the clerk of that county. if the land is worth less than s. per year, the clerk is paid d. if the land exceeds s. yearly, the clerk is paid s. d. an adult may lease his lands or tenements only by a writing under his seal for a term of years or a term of life, because many people who had taken leases of lands and tenements for a term of years or a term of lives had to spend a lot for repair and were then evicted by heirs of their lessors. a husband may not lease out his wife's land. no woman-covert, child, idiot, or person of insane memory may devise land by will or testament. the land of tenants-in-common may be partitioned by them so that each holds a certain part. no bishop or other official having authority to take probate of testaments may take a fee for probating a testament where the goods of the testator are under s., except that the scribe writing the probate of the testament may take d., and for the commission of administration of the goods of any man dying intestate, being up to s, may be charged d. where the goods are over s. but up to s. sterling, probate fees may be s. d. at most, whereof the official may take s. d. at most, with d. residue to the scribe for registering the testament. where the goods are over s. sterling, probate fees may be s. at most, whereof the official may take s. d. at most, with s. d. residue to the scribe, or the scribe may choose to take d. per lines of writing of the testament. if the deceased had willed by his testament any land to be sold, the money thereof coming nor the profits of the land shall not be counted as the goods or chattel of the deceased. where probate fees have customarily been less, they shall remain the same. the official shall approve and seal the testament without delay and deliver it to the executors named in such testaments for the said sum. if a person dies intestate or executors refuse to prove the testament, then the official shall grant the administration of the goods to the widow of the deceased person, or to the next of kin, or to both, in the discretion of the official, taking surety of them for the true administration of the goods, chattels, and debts. where kin of unequal degree request the administration, it shall be given to the wife and, at his discretion, other requestors. the executors or administrators, along with at least two persons to whom the deceased was indebted, or to whom legacies were made, or, upon their refusal or absence, two honest kinsmen, shall make an inventory of the deceased's personal property, goods, chattels, ware, merchandise, and take it upon their oaths to the official. no parish clergyman or other spiritual person shall take a mortuary fee or money from a deceased person with movable goods under the value of s., a deceased woman-covert, a child, a person keeping no house, or a traveler. only one mortuary fee may be taken of each deceased and that in the place where he most dwelled and lived. where the deceased's personal property and goods are to the value of s. or more, above his debts paid, and under s., a mortuary up to s. d. may be taken. where such goods are s. or more and under s., mortuary up to s. d. may be taken. where such goods are s. or above, mortuary up to s. may be taken. but where mortuaries have customarily been less, they shall remain the same. executors of a will declaring land to be sold for the payment of debts, performance of legacies to wife and children, and charitable deeds for the health of souls, may sell the land despite the refusal of other executors to agree to such sale. a man may not marry his mother, stepmother, sister, niece, aunt, or daughter. any clergy preaching contrary to the king's religious doctrine shall recant for the first offense. he shall abjure and bear a faggot (a badge resembling a faggot of wood which would have been used for burning him as a heretic) for the second offense. if he refuses to abjure or bear a faggot or offends a third time, he shall be burned and lose all his goods. if a layperson teaches, defends, or maintains a religious doctrine other than the king's, he shall recant and be imprisoned for twenty days for the first offense. he shall abjure and bear a faggot if he does not recant or offends a second time. he shall forfeit his goods and suffer perpetual imprisonment if he does not abjure or bear a faggot or offends a third time. the entry of an apprentice into a craft shall not cost more than s. d. after his term, his entry shall not be more than s. d. this replaced the various fees ranging from this to s. no master of a craft may require his apprentice to make an oath not to compete with him by setting up a shop after the term of his apprenticeship. no alien may take up a craft or occupation in the nation. no brewer of ale or beer to sell shall make wood vessels or barrels, and coopers shall use only good and seasonable wood to make barrels and shall put their mark thereon. every ale or beer barrel shall contain of the king's standard gallons. the price of beer barrels sold to ale or beer brewers or others shall be d. an ale-brewer may employ in his service one cooper only to bind, hoop and pin, but not to make, his master's ale vessels. no butcher may keep a tanning-house. tanned leather shall be sold only in open fairs and markets and after it is inspected and sealed. only people living in designated towns may make cloth to sell, to prevent the ruin of these towns by people taking up both agriculture and cloth-making outside these towns. no one making cloth for sale may have more than one woolen loom or else forfeit s. this to protect the weavers' ability to maintain themselves and their families from rich clothiers who keep many looms and employ journeymen and unskillful persons at low wages. no one owning a fulling mill may own a weaving loom. no weaver may own a fulling mill. no one shall shoot in or keep in his house any handgun or crossbow unless he has , s. yearly. no one may hunt or kill hare in the snow since their killing in great numbers by men other than the king and noblemen has depleted them. no one shall take an egg or bird of any falcon or hawk out of its nest on the king's land. no one may disguise himself with hidden or painted face to enter a forest or park enclosed with a wall for keeping deer to steal any deer or hare. ducks and geese shall not be taken with any net or device during the summer, when they haven't enough feathers to fly. but a freeholder of s. yearly may hunt and take such with long bow and spaniels. no one may sell or buy any pheasant except the king's officers may buy such for the king. no butcher may kill any calf born in the spring. no grain, beef, mutton, veal, or pork may be sold outside the nation. every person with acres of agricultural land, shall sow one quarter acre with flax or hemp-feed. all persons shall kill crows on their land to prevent them from eating so much grain at sowing and ripening time and destroying hay stacks and the thatched roofs of houses and barns. they shall assemble yearly to survey all the land to decide how best to destroy all the young breed of crows for that year. every village and town with at least ten households shall put up and maintain crow nets for the destruction of crows. no land used for raising crops may be converted to pasture. no woods may be converted to agriculture or pasture. the efforts to enforce these proved these prohibitions were not successful. no one shall cut down or break up dikes holding salt water and fresh water from flooding houses and pastures. no one shall dump tin-mining debris, dung, or rubbish into rivers flowing into ports or take any wood from the walls of the port, so that ships may always enter at low tide. a person may lay out a new highway on his land where the old one has been so damaged by waterways that horses with carriages cannot pass, with the consent of local officials. only poor, aged, and disabled persons may beg. begging without a license is punishable by whipping or setting in the stocks days with only bread and water. alien palm readers shall no longer be allowed into the nation, because they have been committing felonies and robberies. butchers may not sell beef, pork, mutton, or veal from carcasses for more than / penny and / farthing [ / penny] per pound. french wines may not sell at retail for more than d. per gallon. a barrel maker or cooper may sell a beer barrel for d. no longer may aliens bring books into the nation to sell because now there are sufficient printers and bookbinders in the nation. no one may buy fresh fish other than sturgeon, porpoise, or seal from an alien to put to sale in the nation. every person with an enclosed park where there are deer, shall keep two tall and strong mares in such park and shall not allow them to be mounted by any short horse, because the breeding of good, swift, and strong horses has diminished. a man may have only as many trotting horses for the saddle as are appropriate to his degree. no one may maintain for a living a house for unlawful games such as bowling, tennis, dice, or cards. no artificer, craftsman, husbandman, apprentice, laborer, journeyman, mariner, fisherman may play these games except at christmas under his master's supervision. noblemen and others with a yearly income of at least , s. may allow his servants to play these games at his house. hemp or flax may not be watered in any river or stream where animals are watered. no one shall sell merchandise to another and then buy back the same merchandise within three months at a lower price. no one shall sell merchandise to be paid for in a year above the sum of s. per s. worth of merchandise. no one shall sell or mortgage any land upon condition of payment of a sum of money before a certain date above the sum of s. per s. per year. no one shall commit forgery by counterfeiting a letter made in another person's name to steal any money, goods, or jewels. no one shall libel by accusing another of treason in writing and leaving it in an open place without subscribing his own name to it. if any servant converts to his own use more than s. worth of jewels, money, or goods from caskets entrusted to him for safekeeping by a nobleman or other master or mistress, it shall be a felony. if a person breaks into a dwelling house by night to commit burglary or murder, is killed by anyone in that house, or a person is killed in self-defense, the killer shall not forfeit any lands or goods for the killing. killing by poisoning shall be deemed murder and is punishable by death. a person who has committed a murder, robbery, or other felony he has committed shall be imprisoned for his natural life and be burned on the hand, because those who have been exiled have disclosed their knowledge of the commodities and secrets of this nation and gathered together to practice archery for the benefit of the foreign realm. if he escapes such imprisonment, he shall forfeit his life. a person convicted or outlawed shall be penalized by loss of life, but not loss of lands or goods, which shall go to his wife as dower and his heirs. buggery may not be committed on any person or beast. no one shall slander or libel the king by speeches or writing or printing or painting. no one shall steal fish from a pond on another's land by using nets or hooks with bait or by drying up the pond. the mayor of london shall appoint householders to supervise watermen rowing people across the thames river because many people have been robbed and drowned by these rowers. all such boats must be at least feet long and feet wide. no man shall take away or marry any maiden under years of age with an inheritance against the will of her father. any marriage solemnized in church and consummated shall be valid regardless of any prior agreement for marriage. sheriffs shall not lose their office because they have not collected enough money for the exchequer, but shall have allowances sufficient to perform their duties. butchers, brewers, and bakers shall not conspire together to sell their victuals only at certain prices. artificers, workmen and laborers shall not conspire to work only at a certain rate or only at certain hours of the day. no one shall sell any woolen cloth that shrinks when it is wet. no one shall use a rope or device to stretch cloth for sale so to make it appear as more in quantity than it is. no one may sell cloth at retail unless the town where it was dressed, dyed, and pressed has placed its seal on the cloth. cloth may not be pressed with a hot press, but only with a cold press. only artificers using the cutting of leather, may buy and sell tanned leather and only for the purpose of converting it into made wares. a beggar's child above five years may be taken into service by anyone that will. cattle may be bought only in the open fair or market and only by a butcher or for a household, team, or dairy, but not for resale live. butter and cheese shall not be bought to be sold again except at retail in open shop, fair, or market. no man may enter a craft of cloth-making until he has been an apprentice for seven years or has married a clothiers' wife and practicing the trade for years with her and her servants sorting the wool. no country person shall sell wares such as linen drapery, wool drapery, hats, or groceries by retail in any incorporated town, but only in open fairs. for every sheep there shall be kept one milk cow because of the scarcity of cattle. no clothier may keep more than one wool loom in his house, because many weavers do not have enough work to support their families. no weaver may have more than two wool looms. no clothmaker, fuller, shearman, weaver, tailor, or shoemaker shall retain a journeyman to work by the piece for less than a three month period. every craftsman who has three apprentices shall have one journeyman. servants in agriculture and bargemen shall serve by the whole year and not by day wages. there shall be a sales tax of d. per pound of wool cloth goods for the crown. all people shall attend church on sundays to remember god's benefits and goodness to all and to give thanks for these with prayers and to pray to be given daily necessities. anyone fighting in church shall be excluded from the fellowship of the parish community. no one going from house to house to repair metal goods or sell small goods he is carrying may do this trade outside the town where he lives. no one may sell ale or beer without a license, because there have been too many disorders in common alehouses. offenders may be put in the town or county gaol for three days. only persons with yearly incomes of , s. or owning goods worth , s. may store wine in his house and only for the use of his household. no one may sell forged iron, calling it steel, because the edged tools and weapons made from it are useless. parish communities shall repair the highways for four days each year using oxen, cart, plough, shovels, and spades. the children of priests are declared legitimate so they may inherit their ancestor's lands. the priests may be tenants by courtesy after the death of their wives of such land and tenements that their wives happened to be seized of in fee simple or in fee tail, during the spousals. as of , it was felony to practice witchcraft, sorcery, enchantment, or conjuration [invocation of spirits] for the purpose ) of obtaining money, or ) to consume any person in his body, members, or goods, or ) to provoke any person to unlawful love or lucre of money, or ) to declare where stolen goods be, or ) to despite christ, or ) to pull down any cross. the year books of case decisions ceased in . judicial procedure since the nation was now peaceful, expediency was no longer needed, so judicial procedures again became lengthy and formal with records. the privy council took the authority of the star chamber court, which organized itself as a specialty court. a specific group of full-time councilors heard pleas of private suitors. by royal proclamation of , only those admitted by the chancellor and two chief justices may practice as counsel or in legal pleading in any of the king's courts. also, such a person must be serjeant-at-law, reader, utter barrister, or an eight-year fellow of one of the four houses of court, except in the court of common pleas. doctors of the civil law may practice in the church or chancery courts. the chancery court enforced the obligations known as trusts, in the name of equity and good conscience. it adopted every analogy that the common law presented. its procedure was to force the defendant to answer on oath the charges that were brought against him. all pleadings and usually testimony was put into writing. much evidence consisted of written affidavits. there was no jury. the chancery court did not record its decisions apparently because it did not see itself as bound by precedents. when acting as the highest court, the house of lords was presided over by the chancellor, who sat on his prescribed place on the wool sacks. it had the following jurisdiction: trial of peers for high treason and serious felony, appeals on writs of error from courts of the common law, and impeachment. the house of lords served as judge of impeachment cases, whereas the house of commons served as fact finders. witnesses could be sworn in to state pertinent facts necessary for full understanding and adjudication of cases, because they are reliable now that there is no unlicensed livery and maintenance and because jurors no longer necessarily know all the relevant facts. justices shall tax inhabitants of the county for building gaols throughout the nation, for imprisonment of felons, to be kept by the sheriffs and repaired out of the exchequer. piracy at sea or in river or creek or port are adjudicated in counties because of the difficulty of obtaining witnesses from the ship, who might be murdered or who are on other voyages on the sea, for adjudication by the admiral. piracy and murder on ships is punishable by death only after confession or proof by disinterested witnesses. land held by tenants in common may be partitioned by court order, because some of these tenants have cut down all the trees to take the wood and pulled down the houses to convert the material to their own use. persons worth s. a year in goods shall be admitted in trials of felons in corporate towns although they have no freehold of land. each justice of the high courts may employ one chaplain. the bishops, nobility, and justices of the peace were commanded to imprison clergy who taught papal authority. justices of the peace and sheriffs were to watch over the bishops. the justices of assize were to assess the effectiveness of the justices of the peace as well as enforce the treason statute on circuit. the criminal court went outside the common law to prosecute political enemies, e.g. by dispensing with a jury. the leet court and sheriff's turn court have much less jurisdiction. they may dispose of presentments of trespasses and nuisances, but not felony or question of freehold. such presentments are made by a set of at least twelve men, and the presented person is amerced there and then. the humanist intellectual revival caused the church courts to try to eliminate contradictions with state law, for instance in debt, restitution, illegitimacy, and the age of legal majority. an example of a case in the king's bench is this: "a french priest was indicted in kent for bringing false ducats into the realm in order to make payment, knowing them to be false. he was thereupon arraigned and found guilty, and the judgment was respited and the record sent into the king's bench. and there he was discharged; for the statute of edw. is for bringing (in) false money counterfeiting coin of the realm, and the ducats are not coin of the realm" in the case of r. v. thorpe "a man robbed a church in essex and was indicted for it in essex; and he went to ipswich in suffolk and a goldsmith received him; and they were both indicted in suffolk, one as principal and the other as accessory, because the principal had brought part of the stolen goods to ipswich. and the justices in essex sent a writ for the principal, whereby he was there arraigned and found guilty and hanged. then the other indictment in suffolk was removed into the king's bench, and upon process the sheriff returned the principal dead; so the accessory came by process and pleaded the death of the principal, and the attorney for the king confessed it, and therefore he was discharged." in the case of r. v. more, "and then on thursday, the first day of july, sir thomas more, knight (who had earlier been chancellor of england and was afterwards discharged from the same office) was arraigned before the said sir thomas audley, chancellor and the other commissioners, for treason, in that he was an aider, counsellor and abettor to the said fisher, and also that he falsely, maliciously, and traitorously desiring, willing, and scheming, contrived, practised and attempted to deprive the king of his dignity, name and title of supreme head on earth of the church of england. (he was) found guilty, and the said chancellor gave judgment. and the said more stood firmly upon the statute of hen , for he said that the parliament could not make the king supreme head, etc. he was beheaded at tower hill," chapter the times: - queen elizabeth i was intelligent, educated, and wise about human nature. when young, she was a brilliant student and studied the bible, philosophy, literature, oratory, and greek and roman history. she wrote in english, latin, french, and italian. she read greek, including the greek testament, greek orators, and greek dramatists, at age seven, when the first professorship of greek was founded at cambridge university. learning from books was one of her highest values throughout her life. she read so much and was so influenced by cicero that she acquired his style of writing. her chief secretary william cecil was so guided by cicero's "offices" that he carried a copy in his pocket. cicero opined that government officials had a duty to make the safety and interest of citizens its greatest aim and to influence all their thoughts and endeavors without ever considering personal advantage. government was not to serve the interest of any one group to the prejudice or neglect of the rest, for then discord and sedition would occur. furthermore, a ruler should try to become loved and not feared, because men hated those whom they feared, and wished them dead. therefore obedience proceeding from fear could not last, whereas that which was the effect of love would last forever. an oppressor ruling by terror would be resented by the citizens, who in secret would choose a worthier person. then liberty, having been chained up, would be unleashed more fiercely than otherwise. to obtain the peoples' love, a ruler should be kind and bountiful. to obtain the peoples' trust, a ruler should be just, wise, and faithful. to demonstrate this, a ruler should be eloquent in showing the people an understanding better than theirs, the wisdom to anticipate events, and the ability to deal with adverse events. and this demonstration should be done with modesty. one cannot get the peoples' trust by vain shows, hypocritical pretenses, composed countenances, and studied forms of words. the first goal of a ruler is to take care that each individual is secured in the quiet enjoyment of his own property. the second goal is to impose taxes that are not burdensome. the third goal is to furnish the people with necessaries. the law should be enforced keeping in mind that its fundamental purpose is to keep up agreement and union among citizens. elizabeth cared deeply for the welfare of all citizens of whatever class. she was sensitive to public opinion and was loved by her people. she respected truth and was sincere, avoiding guile or fraud. she claimed that she had never dishonored her tongue with a falsehood to anyone. she expected that any covert manipulations by monarchs would be found out and therefore would damage their credibility. "it becometh therefor all of our rank to deal sincerely; lest if we use it not, when we do it we be hardly believed." she was frugal and diplomatically avoided unnecessary wars, saying that her purse was the pockets of her people. her credit reputation was so good that she could always get loans at small rates of interest from other countries. england was a small protestant nation threatened by the larger catholic nations of france and spain. when elizabeth flirted and talked of marriage with foreign princes, they laid aside any thoughts of conquering england by war, hoping to obtain it my marriage. not only did she not seek to conquer other lands, but she turned down an invitation to rule the netherlands. elizabeth prayed for divine guidance as in this prayer: "almighty god and king of all kings, lord of heaven and earth, by whose leave earthly princes rule over mortals, when the most prudent of kings who administered a kingdom, solomon, frankly confessed that he was not capable enough unless thou broughtst him power and help, how much less am i, thy handmaid, in my unwarlike sex and feminine nature, adequate to administer these thy kingdoms of england and of ireland, and to govern an innumerable and warlike people, or able to bear the immense magnitude of such a burden, if thou, most merciful father didst not provide for me (undeserving of a kingdom) freely and against the opinion of many men. instruct me from heaven, and give help so that i reign by thy grace, without which even the wisest among the sons of men can think nothing rightly. send therefore, o inexhaustible fount of all wisdom, from thy holy heaven and the most high throne of thy majesty, thy wisdom to be ever with me, that it may keep watch with me in governing the commonwealth, and that it may take pains, that it may teach me, thy handmaid, and may train me that i may be able to distinguish between good and evil, equity and iniquity, so as rightly to judge thy people, justly to impose deserved punishments on those who do harm, mercifully to protect the innocent, freely to encourage those who are industrious and useful to the commonwealth. and besides, that i may know what is acceptable to thee alone, vouchsafe that i wish, dare, and can perform it without paying respect to any earthly persons or things. so that when thou thyself, the just judge, who askest many and great things from those to whom many and great things are entrusted, when thou requirest an exact accounting, charge me not with badly administering my commonwealth and kingdom. but if by human thoughtlessness or infirmity thy handmaid strays from the right in some thing, absolve me of it by thy mercy, most high king and most mild father, for the sake of thy son jesus christ; and at the same time grant that after this worldly kingdom has been exacted of me, i may enjoy with thee an eternity in thy heavenly and unending kingdom, through the same jesus christ, thy son and the assessor of thy kingdom, our lord and mediator. to whom with thee and with the holy spirit, one everlasting king, immortal, invisible, only-wise god, be all honor and glory forever and ever, amen." elizabeth promoted commercial speculations, which diffused a vast increase of wealth among her people. the elizabethan era was one of general prosperity. her good spirits and gayness created a happy mood in the nation. she loved dancing and madrigal music was popular. she came to dress elaborately and fancifully. her dresses were fitted not only at the waist, but along the torso by a long and pointed bodice stiffened with wood, steel, or whalebone. her skirt was held out with a petticoat with progressively larger hoops. there were two layers of skirt with the top one parted to show the bottom one. the materials used were silks, satins, velvets, and brocades. on her dress were quiltings, slashings, and embroidery. it was covered with gold ornaments, pearls, gems, and unusual stones from america. she wore decorated gloves. ladies copied her and discarded their simple over-tunics for elaborate dresses. the under-tunic became a petticoat and the over-tunic a dress. often they also wore a fan with a mirror, a ball of scent, a miniature portrait of someone dear to them, and sometimes a watch. single ladies did not wear hats, but had long, flowing hair and low cut dresses showing their bosoms. married ladies curled their hair and wore it in high masses on their heads with jewels interwoven into it. both gentlemen and ladies wore hats both indoors and outside and large, pleated collars around their necks (with the newly discovered starch), perfume, rings with stones or pearls, and high-heeled shoes. gentlemen's' tight sleeves, stiffened and fitted doublet with short skirt, and short cloak were ornamented and their silk or velvet hats flamboyant, with feathers. at their leather belts they hung pouches and perhaps a watch. they wore both rapiers [swords with cutting edges] and daggers daily as there were many quarrels. there were various artistic beard cuts and various lengths of hair, which was often curled and worn in ringlets. barbers sought to give a man a haircut that would favor his appearance, for instance a long slender beard for a round face to make it seem narrower and a broad and large cut for a lean and straight face. men now wore stuffed breeches and stockings instead of long hosen. some wore a jeweled and embroidered codpiece between their legs to emphasize their virility. both gentlemen and ladies wore silk stockings and socks over them and then boots. coats dipped in boiled linseed oil with resin served as raincoats. both men and women wore velvet or wool full length nightgowns with long sleeves and fur lining and trimming to bed, which was the custom for the next years. fashions changed every year due to the introduction of cheaper, lighter, and less durable cloths by immigrant craftsmen. when elizabeth became old, she had a wig made to match her youthful long red hair. other ladies then began wearing wigs. every few years, elizabeth issued a proclamation reminding people of the apparel laws and reiterating certain provisions which had been disregarded. for instance, only the royal family and dukes and marquises in mantles [cloaks] of the garter could wear the color purple. one had to be at least an earl to wear gold or silver or sable. only dukes, marquises, earls and their children, barons, and knights of the order could wear imported wool, velvet, crimson, scarlet, or blue, or certain furs., except that barons' sons, knights, or men who could dispend at least pounds yearly could wear velvet in gowns or coats, embroidery, and furs of leopards. spurs, swords, rapiers, daggers, and woodknives were restricted to knights and barons' sons or higher. a man who could dispend at least pounds per year could wear taffeta, satin, damask, or cloth made of camels' hair and silk, in his outer garments. one had to be the son and heir or the daughter of a knight or wife of said son or a man who could dispend pounds yearly or had pounds worth in goods to wear silk in one's hat, bonnet, nightcap, girdle, scabbard, or hose. yeomen, husbandmen, serving men, and craftsmen were very restricted in what they could wear. poor men wore skirted fustian tunics, loose breeches, and coarse stockings or canvas leggings. children wore the same type of apparel as their elders. they were given milk at meals for good growth. it was recognized that sickness could be influenced by diet and herbs. sickness was still viewed as an imperfect balance of the four humors. women spent much of their time doing needlework and embroidery. since so many of the women who spent their days spinning were single, unmarried women became known as "spinsters". there were many lifestyle possibilities in the nation: gentleman, that is one who owned land or was in a profession such as a attorney, physician, priest or who was a university graduate, government official, or a military officer; employment in agriculture, arts, sciences; employment in households and offices of noblemen and gentlemen; self-sufficient farmers with their own farm; fisherman or mariner on the sea or apprentice of such; employment by carriers of grain into cities, by market towns, or for digging, seeking, finding, getting, melting, fining, working, trying, making of any silver, tin, lead, iron, copper, stone, coal; glassmaker. typical wages in the country were: field-workers - d. a day, ploughmen s. a week with board, shepherd d. a week and board, his boy / d., hedgers d. a day, threshers - d. depending on the grain, thatching for five days d., master mason or carpenter or joiner d. a day and food or d. without food, a smith d. a day with food, a bricklayer / d. a day with food, a shoemaker d. a day with food. these people lived primarily on food from their own ground. there was typical work for each month of the year in the country: january - ditching and hedging after the frost broke, february - catch moles in the meadows, march - protect the sheep from prowling dogs, april - put up hop poles, sell bark to the tanner before the timber is felled, fell elm and ash for carts and ploughs, fell hazel for forks, fell sallow for rakes, fell horn for flails, may - weed and hire children to pick up stones from the fallow land, june - wash and shear the sheep, july - hay harvest, august - wheat harvest, september and october - gather the fruit, sell the wool from the summer shearing, stack logs for winter, buy salt fish for lent in the town and lay it up to dry, november - have the chimneys swept before winter, thresh grain in the barn, december - grind tools, repair yokes, forks, and farm implements, cover strawberry and flower beds with straw to protect them from the cold, split kindling wood with beetle and wedge, tan their leather, make leather jugs, make baskets for catching fish, and carve wood spoons, plates, and bowls. there was a wave of building and renovation activity in town and country. housing is now, for the first time, purely for dwelling and not for defense. houses were designed symmetrically with decorative features instead of a haphazard addition of rooms. windows were large and put on the outer walls instead of just inside the courtyard. a scarcity of timber caused proportionally more stone to be used for dwelling houses and proportionately more brick to be used for royal palaces and mansions. the rest of the house was plaster painted white interspersed with vertical, horizontal, and sloping timber, usually oak, painted black. there were locks and bolts for protection from intruders. the hall was still the main room, and usually extended up to the roof. richly carved screens separated the hall from the kitchen. the floors were stone or wood, and sometimes tile. they were often covered with rushes or plaited rush mats, on which incomers could remove the mud from their boots. some private rooms had carpets on the floor. walls were smoothly plastered or had carved wood paneling to control drafts. painted cloths replaced tapestries on walls. family portraits decorated some walls, usually in the dining room. iron stands with candles were hung from the ceiling and used on tables. plastered ceilings and a lavish use of glass made rooms lighter and cozy. broad and gracious open stairways with carved wood banisters replaced the narrow winding stone steps of a circular stairwell. most houses had several ornamented brick chimneys and clear, but uneven, glass in the windows. there were fireplaces in living rooms, dining rooms, kitchen, and bedrooms, as well as in the hall and great chamber. parlors were used for eating and sitting only, but not for sleeping. closets were rooms off bedrooms in which one could read and write on a writing table, and store one's books, papers, maps, calendar, medals, collections, rarities, and oddities. sometimes there was a study room or breakfast room as well. a gentleman used his study not only to read and to write, but to hold collections of early chronicles, charters, deeds, copied manuscripts, and coins that reflected the budding interest in antiquarianism; and to study his family genealogy, for which he had hired someone to make an elaborate diagram. he was inclined to have a few classical, religious, medical, legal, and political books there. rooms were more spacious than before and contained oak furniture such as enclosed cupboards; cabinets; buffets from which food could be served; tables, chairs and benches with backs and cushions, and sometimes with arms; lidded chests for storing clothes and linens, and occasionally chests of drawers or wardrobes, either hanging or with shelves, for clothes. chests of drawers developed from a drawer at the bottom of a wardrobe. carpeting covered tables, chests, and beds. great houses had a wardrobe chamber with a fireplace in front of which the yeoman of the wardrobe and his assistants could repair clothes and hangings. separate bedchambers replaced bed-sitting rooms. bedrooms all led out of each other. the lady's chamber was next to her lord's chamber, and her ladies' chambers were close to her chamber. but curtains on the four-poster beds with tops provided privacy and warmth. beds had elaborately carved bedsteads, sheets, and a feather cover as well as a feather mattress. often family members, servants, and friends shared the same bed for warmth or convenience. each bedroom typically had a cabinet with a mirror, e.g. of burnished metal or crystal, and comb on top. one brushed his teeth with tooth soap and a linen cloth, as physicians advised. each bedroom had a pitcher and water bowl, usually silver or pewter, for washing in the morning, and a chamber pot or a stool with a hole over a bucket for nighttime use, and also fragrant flowers to override the unpleasant odors. the chamber pots and buckets were emptied into cesspits. a large set of lodgings had attached to it latrines consisting of a small cell in which a seat with a hole was placed over a shaft which connected to a pit or a drain. the servants slept in turrets or attics. elizabeth had a room just for her bath. breakfast was substantial, with meat, and usually eaten in one's bedroom. the great hall, often hung around with bows, pikes, swords, and guns, was not abandoned, but the family took meals there only on rare occasions. instead they withdrew to a parlor, for domestic use, or the great chamber, for entertaining. parlors were situated on the ground floor: the family lived and relaxed there, and had informal meals in a dining parlor. more than medieval castles and manor houses, mansions were designed with privacy in mind. the formal or "state" rooms were on the first floor above the ground floor, usually comprising a great chamber, a withdrawing chamber, one or more bedchambers, and a long gallery. each room had carved chairs and cabinets. taking a meal in the great chamber involved the same ceremonial ritual as in the manorial great chamber dating from the s. the table was covered with a linen cloth. the lady of the house sat in a chair at the upper end of the table and was served first. people of high rank sat at her end of the table "above" the fancy silver salt cellar and pepper. people of low rank sat "below" it near the other end of the table. grace was said before the meal. noon dinner and supper were served by cupbearer, sewer, carver, and assistants. fine clear italian glass drinking vessels replaced even gold and silver goblets. food was eaten from silver dishes with silver spoons. some gentry used two-pronged forks. meats were plentiful and varied: e.g. beef, mutton, veal, lamb, kid, pork, hare, capon, red deer, fish and wild fowl as well as the traditional venison and brawn [boar]. kitchen gardens and orchards supplied apricots, almonds, gooseberries, raspberries, melons, currants, oranges, and lemons as well as the traditional apples, pears, plums, mulberries, quinces, pomegranates, figs, cherries, walnuts, chestnuts, hazel nuts, filberts, almonds, strawberries, blackberries, dewberries, blueberries, and peaches. also grown were sweet potatoes, artichokes, cabbages, turnips, broad beans, peas, pumpkins, cucumbers, radishes, carrots, celery, parsnips, onions, garlic, leeks, endive, capers, spinach, sorrel, lettuce, parsley, mustard, cress, sage, tarragon, fennel, thyme, mint, savory, rhubarb, and medicinal herbs. the well-to-do started to grow apricots, peaches, and oranges under glass. sugar was used to make sweet dishes. toothpicks made of brass or silver or merely a stiff quill were used. after the meal, some men and women were invited for conversation in a withdrawing or drawing chamber. some might take a walk in the gardens. after the upper table was served, the food was sent to the great hall to the steward and high household officers at the high table and other servants: serving men and women, bakers, brewers, cooks, pot cleaners, laundresses, shepherds, hogherds, dairy maids, falconers, huntsmen, and stable men. what was left was given to the poor at the gates of the house. great chambers were used primarily for meals, but also for music; dancing; plays; masques; playing cards, dice, backgammon, or chess; and daily prayers if there was no chapel. without the necessity of fortifications, the estate of a noble or gentleman could spread out to include not only a garden for the kitchen, but extensive orchards and beautiful formal gardens of flowers and scrubs, sometimes with fountains and maybe a maze of hedges. trees were planted, pruned, and grafted onto each other. householders had the responsibility to teach their family and servants religion and morals, and often read from the bible to them. many thought that the writers of the bible wrote down the exact words of god, so the passages of the bible should be taken literally. a noble lord made written rules with penalties for his country household, which numbered about a hundred, including family, retainers, and servants. he enforced them by fines, flogging, and threats of dismissal. the lady of the house saw that the household held together as an economic and social unit. the noble's family, retainers, guests, and the head servants, such as chaplain and children's tutor, and possibly a musician, dined together at one table. the family included step children and married sons and daughters with their spouses. young couples often lived with the parents of one of them. chandeliers of candles lit rooms. there were sandglass clocks. popular home activities included reading, conversation, gardening, and music-making. smoking tobacco from a clay pipe and taking snuff became popular with men. for amusement, one of the lord's household would take his place in managing the estate for twelve days. he was called the "lord of misrule", and mimicked his lord, and issued comic orders. clothes were washed in rivers and wells. at spring cleanings, windows were opened, every washable surface washed, and feather beds and pillows exposed to the sun. most dwellings were of brick and stone. only a few were of wood or mud and straw. the average house was now four rooms instead of three. yeomen might have six rooms. a weaver's house had a hall, two bedrooms, and a kitchen besides the shop. farmers might have two instead of one room. a joiner had a one-room house with a feather bed and bolster. even craftsmen, artificers and simple farmers slept on feather beds on bed frames with pillows, sheets, blankets, and coverlets. loom tapestry and painted cloth was hung to keep out the cold in their single story homes. they also had pewter spoons and plates, instead of just wood or earthenware ones. even the poorer class had glass drinking vessels, though of a coarse grade. the poor still used wooden plates and spoons. laborers had canvas sheets. richer farmers would build a chamber above the hall, replacing the open hearth with a fireplace and chimney at a wall. poorer people favored ground floor extensions, adding a kitchen or second bedchamber to their cottages. kitchens were often separate buildings to reduce the risk of fire. roasting was done on a spit and baking in irons boxes placed in the fire or in a brick oven at the side of the fireplace. sometimes dogs were used to turn a spit by continual running in a treadmill. some people lived in hovels due to the custom in many places that a person could live in a home he built on village waste land if he could build it in one night. yeomen farmers still worked from dawn to dusk. mixed farming began. in this, some of the arable land produced food for man and the rest produced food for sheep, cattle, pigs, and poultry. this was made possible by the introduction of clover, artificial grasses, and turnip and other root crops for the animals. since the sheep ate these crops in the field, they provided manure to maintain the fertility of the soil. this meant that many animals could be maintained throughout the winter instead of being slaughtered and salted. so salted meat and salted fish were no longer the staple food of the poorer people during the winter. farm laborers ate soup, porridge, milk, cheese, bacon, and beer or mead (depending on the district), and dark barley or rye bread, which often served as his plate. gentlemen ate wheat bread. there was a scarcity of fruits and vegetables that adversely affected the health of the affluent as well as of the poor due to the overall decline in farming. during winter, there were many red noses and coughing. farmers' wives used looms as well as spinning wheels with foot treadles. the value of grain and meat rose compared to wool. grain became six times its value in the previous reign. wool fell from s. d. per tod to s. so sheep farming, which had taken about % of the arable land, was supplanted somewhat by crop raising, and the rural population could be employed for agriculture. in some places, the threefold system of rotation was replaced by alternating land used for crops with that used for pasture. the necessity of manuring and the rotation of crops and grasses such as clover for enrichment of the soil were recognized. wheat, rye, barley, peas, and beans were raised. there was much appropriation of common land by individual owners by sale or force. many farms were enclosed by fences or hedges so that each holder could be independent of his neighbors. red and black currants, rhubarb, apricots, and oranges were now grown. these independent farmers could sell wool to clothiers, and butter, cheese, and meat to the towns. they also often did smithwork and ironwork, making nails, horseshoes, keys, locks, and agricultural implements to sell. a laborer could earn d. a day in winter and d. a day in summer. unfree villeinage ceased on the royal estates. but most land was still farmed in common and worked in strips without enclosure. elizabeth made several proclamations ordering the enclosure of certain enclosed land to be destroyed and the land returned to tillage. windmills now had vanes replacing manual labor to change the position of their sails when the wind direction changed. prosperous traders and farmers who owned their own land assumed local offices as established members of the community. the population of the nation was about five million. population expansion had allowed landlords to insist on shorter leases and higher rents, instead of having to choose between accepting a long lease and good rent or allowing their estates to pass out of cultivation. over % of the population were on the margin of subsistence. % of the population lived in the countryside and % in the london and % in the other towns. life expectancy was about years of age. over % were under the age of , while only about % were over . fluctuations in rates of population growth were traceable back to bad harvests and to epidemics and the two were still closely related to each other: "first dirth and then plague". most of london was confined within the city wall. there were orchards and gardens both inside and outside the walls, and fields outside. flower gardens and nurseries came into existence. no part of the city was more than a ten minute walk to the fields. some wealthy merchants had four story mansions or country houses outside the city walls. the suburbs of the city of london grew in a long line along the river; on the west side were noblemen's houses on both sides of the strand. east of the tower was a seafaring and industrial population. goldsmiths' row was replete with four story houses. a few wealthy merchants became money- lenders for interest, despite the law against usury. the mayor of london was typically a rich merchant prince. each trade occupied its own section of the town and every shop had its own signboard, for instance, hat and cap sellers, cloth sellers, grocers, butchers, cooks, taverns, and booksellers. many of the london wards were associated with a craft, such as candlewick ward, bread st. ward, vintry ward, and cordwainer ward. some wards were associated with their location in the city, such as bridge ward, tower ward, aldgate ward, queenhithe ward, and billingsgate ward. people lived at the back or on the second floor of their shops. in the back yard, they grew vegetables such as melons, carrots, turnips, cabbages, pumpkins, parsnips, and cucumbers; herbs; and kept a pig. the pigs could still wander through the streets. hyde park was the queen's hunting ground. london had a small zoo of ten animals, including a lion, tiger, lynx, and wolf. london was england's greatest manufacturing city. by the greatest trading companies in london ceased to be associated only with their traditional goods and were dominated by merchants whose main interest was in the cloth trade. ambitious merchants joined a livery company to become freemen of the city and for the status and social benefits of membership. the companies still made charitable endowments, had funeral feasts, cared for the welfare of guild members, and made lavish displays of pageantry. they were intimately involved with the government of the city. they supplied members for the court of aldermen, which relied on the companies to maintain the city's emergency grain stores, to assess and collect taxes, to provide loans to the crown, to control prices and markets, to provide armed men when trouble was expected, and to raise armies for the crown at times of rebellion, war, or visits from foreign monarchs. from about to , there were % involved in cloth or clothing industries such as weavers, tailors, hosiers, haberdashers, and cappers. % were leatherworkers such as skinners; tanners; those in the heavy leather crafts such as shoemakers, saddlers, and cobblers; and those in the light leather crafts such as glovers and pursers. another % worked in metals, such as the armorers, smiths, cutlers, locksmiths, and coppersmiths. % worked in the building trades. the victualing trades, such as bakers, brewers, butchers, costermongers [sold fruit and vegetables from a cart or street stand], millers, fishmongers, oystermen, and tapsters [bartender], grew from % before to % by . of london's workforce, % were involved in production; % were merchants before ; % were merchants by ; % were transport workers such as watermen, sailors, porters, coachmen, and shipwrights; and - % were professionals and officials (this number declining). life in london was lived in the open air in the streets. the merchant transacted business agreements and the attorney saw his clients in the street or at certain pillars at st. paul's church, where there was a market for all kinds of goods and services, including gentlemen's valets, groceries, spirits, books, and loans, which continued even during the daily service. some gentlemen had offices distant from their dwelling houses such as attorneys, who had a good income from trade disputes and claims to land, which often changed hands. plays and recreation also occurred in the streets, such as performances by dancers, musicians, jugglers, clowns, tumblers, magicians, and men who swallowed fire. the churches were continuously open and used by trades and peddlers, including tailors and letter-writers. water carriers carried water in wood vessels on their shoulders from the thames river or its conduits to the inhabitants three gallons at a time. a gentleman concocted an engine to convey thames water by lead pipes up into men's houses in a certain section of the city. in , a man took out a lease on one of the arches of london bridge. there he built a waterwheel from which he pumped water to residents who lived beside the bridge. soldiers, adventurers, physicians, apprentices, prostitutes, and cooks were all distinguishable by their appearances. an ordinance required apprentices to wear long blue gowns and white breeches with stockings, with no ornamentation of silk, lace, gold or silver and no jewelry. they could wear a meat knife, but not a sword or dagger. apprentices lived with their masters and worked from or a.m. to p.m. some people knitted wool caps as they walked to later sell. there were sections of town for booksellers, butchers, brewers, hosiers, shoemakers, curriers, cooks, poulters, bow makers, textwriters, pattenmakers, and horse and oxen sellers. large merchant companies had great halls for trade, such as the mercers, grocers, drapers, fishmongers, and goldsmiths. the other great guilds were the skinners, merchant tailers, salters, haberdashers, ironmongers, vintners, and clothworkers. smaller guilds were those of the bakers, weavers, fruiterers, dyers, thames watermen and lightermen, carpenters, joiners, turners, and parish clerks. the guilds insured quality by inspecting goods for a fee. about , mercer and merchant adventurer thomas gresham established the royal exchange as a place for merchants and brokers to meet for business purposes. it became the center of london's business life. its great bell rang at midday and at p.m. its courtyard was lined with shops that rented at s. yearly and became a popular social and recreational area. gresham formulated his law that when two kinds of money of equal denomination but unequal intrinsic value are in circulation at the same time, the one of greater value will tend to be hoarded or exported, i.e. bad money will drive good money out of circulation. the work-saving knitting frame was invented in by minister william lee; it knit crosswise loops using one continuous yarn and was operated by hand. the stocking knitters, who knitted by hand, put up a bitter struggle against its use and chased lee out of the country. but it did come into use. some framework stocking knitters paid frame rent for the use of their knitting frames. frame knitting became a scattered industry. by basement services were frequently found in town houses built on restricted sites in london. lastly, provision of water supplies and improved sanitary arrangements reflected concern with private and public health. there was virtually no drainage. in the case of town houses, some owners would go to considerable effort to solve drainage problems, often paying cash to the civic authorities, but sometimes performing some service for the town at court or at westminster, in return for unlimited water or some drainage. most affluent households, including the queen's, moved from house to house, so their cesspits could be cleaned out and the vacated buildings aired after use. a few cesspits were made air tight. otherwise, there was extensive burning of incense. refuse was emptied out of front doors and shoveled into heaps on street corners. it was then dumped into the thames or along the highways leading out of town. people put on perfume to avoid the stench. by , the first toilet and water closet, where water flushed away the waste, was built. this provided a clean toilet area all year round. but these toilets were not much used because of sewer smells coming from them. the sky above london was darkened somewhat by the burning of coal in houses. taverns served meals as well as ale. they were popular meeting places for both men and women of all backgrounds to met their friends. men went to taverns for camaraderie and to conduct business. women usually went to taverns with each other. two taverns in particular were popular with the intelligentsia. music was usually played in the background and games were sometimes played. beer made with hops and malt was introduced and soon there were beer drinking contests. drunkenness became a problem. at night, the gates of the city were closed and citizens were expected to hang out lanterns. the constable and his watchmen carried lanterns and patrolled the streets asking anyone they saw why they were out so late at night. crime was rampant in the streets and criminals were executed near to the crime scene. there were a few horse-drawn coaches with leather flaps or curtains in the unglazed windows to keep out the weather. the main thoroughfare in london was still the thames river. nobles, peers, and dignitaries living on the thames had their own boats and landings. also at the banks, merchants of all nations had landing places where ships unloaded, warehouses, and cellars for goods and merchandise. swans swam in the clear bright water. watermen rowed people across the thames for a fee. in southwark were theaters, outlaws, cutpurses, prostitutes, and prisons. in southwark became the th and last ward of london. in the summer, people ate supper outside in public. as of old times, brokers approved by the mayor and aldermen made contracts with merchants concerning their wares. some contracts included holding wares as security. some craftsmen and manual workers extended this idea to used garments and household articles, which they took as pawns, or security for money loaned. this began pawn brokerage, which was lucrative. the problem was that many of the items pawned had been stolen. elizabeth had good judgment in selecting her ministers and advisors for her privy council, which was organized like henry viii's privy council. the queen's privy council of about twelve ministers handled foreign affairs, drafted official communiques, issued proclamations, supervised the county offices: the justices of the peace, chief constables, sheriffs, lord lieutenants, and the county militias. it fixed wages and prices in london, advised justices of the peace on wages elsewhere, and controlled exports of grain to keep prices down and supplies ample. it banned the eating of meat two days a week so that the fishing industry and port towns would prosper. when grain was scarce in , elizabeth made a proclamation against those ingrossers, forestallers, and ingraters of grain who increased its price by spreading false rumors that it was scarce because much of it was being exported, which was forbidden. there were labor strikes in some towns for higher wages after periods of inflation. in , london authorities rounded up the sturdy vagabonds and set them to work cleaning out the city ditches for d. per day. during the tudor period, the office of secretary of state was established. elizabeth did not allow any gentleman to live in london purely for pleasure, but sent those not employed by the court back to their country manors to take care of and feed the poor of their parishes. her proclamation stated that "sundry persons of ability that had intended to save their charges by living privately in london or towns corporate, thereby leaving their hospitality and the relief of their poor neighbors, are charged not to break up their households; and all others that have of late time broken up their households to return to their houses again without delay." she never issued a license for more than retainers. she was partially successful in stopping justices of the peace and sheriffs from wearing the liveries of great men. she continued the policy of henry vii to replace the rule of force by the rule of law. service of the crown and influence at court became a better route to power and fortune than individual factions based on local power structures. at the lowest level, bribery became more effective than bullying. the qualities of the courtier, such as wit, and the lawyer became more fashionable than the qualities of the soldier. most of the men in elizabeth's court had attended a university, such as francis bacon, son of the lord keeper, who became a writer, attorney, member of the commons, and experimental philosopher; and walter ralegh, the writer and sea fighter, who had a humble origin. many wives and daughters of privy councilors attended the queen in her privy chamber. most of the knights or gentlemen of the royal household were also members of parliament or justices of the peace for certain districts in the counties. instead of the office of chancellor, which was the highest legal office, elizabeth appointed a man of common birth to be lord keeper of the great seal; she never made a lord keeper a peer. elizabeth encouraged her lords to frankly make known their views to her, in public or in private, before she decided on a course of action. she had affectionate nicknames for her closest courtiers, and liked to make puns. the rooms of the queen were arranged as they had been under henry viii: the great hall was the main dining room where the servants ate and which elizabeth attended on high days and holidays; the great chamber was the main reception room, where her gentlemen and yeomen of the guard waited; the presence chamber was where she received important visitors; beyond lay her privy chamber and her bedchamber. she ate her meals in the privy chamber attended only by her ladies. she believed that a light supper was conducive to good health. the lord chamberlain attended the queen's person and managed her privy chamber and her well-born grooms and yeomen and ladies-in-waiting. the lord steward managed the domestic servants below the stairs, from the lord treasurer to the cooks and grooms of the stable. the court did not travel as much as in the past, but became associated with london. elizabeth took her entire court on summer visits to the country houses of leading nobility and gentry. courtiers adopted symbolic "devices" as statements of their reaction to life or events, e.g. a cupid firing arrows at a unicorn signified chastity under attack by sexual desire. they carried them enameled on jewels, had them painted in the background of their portraits, and sometimes had them expressed on furniture, plate, buildings, or food. the authority of the queen was the authority of the state. elizabeth's experience led her to believe that it was most important for a monarch to have justice, temperance, magnanimity, and judgment. she claimed that she never set one person before another, but upon just cause, and had never preferred anyone to office for the preferrer's sake, but only when she believed the person worthy and fit for the office. she never blamed those who did their best and never discharged anyone form office except for cause. further, she had never been partial or prejudiced nor had listened to any person contrary to law to pervert her verdicts. she never credited a tale that was first told to her and never corrupted her judgment with a censure before she had heard the cause. she did not think that the glory of the title of monarch made all she did lawful. to her, clemency was as eminent in supreme authority as justice and severity. secular education and especially the profession of law was now the route for an able but poor person to rise to power, rather than as formerly through military service or through the church. the first stage of education was primary education, which was devoted to learning to read and write in english. this was carried out at endowed schools or at home by one's mother or a tutor. the children of the gentry were usually taught in their homes by private teachers of small classes. many of the poor became literate enough to read the bible and to write letters. however, most agricultural workers and laborers remained illiterate. they signed with an "x", which represented the christian cross and signified its solemnity. children of the poor were expected to work from the age of or . the next stage of education was grammar [secondary] school or a private tutor. a student was taught rhetoric (e.g. poetry, history, precepts of rhetoric, and classical oratory), some logic, and latin and greek grammar. english grammar was learned through latin grammar and english style through translation from latin. as a result, they wrote english in a latin style. literary criticism was learned through rhetoric. there were disputations on philosophical questions such as how many angels could sit on a pin's point, and at some schools, orations. the students sat in groups around the hall for their lessons. the boys and some girls were also taught hawking, hunting and archery. there were no playgrounds. the grammar student and the undergraduate were tested for proficiency by written themes and oral disputations, both in latin. the middle classes from the squire to the petty tradesman were brought into contact with the works of the best greek and roman writers. the best schools and many others had the students read cicero - the "de officiis", the epistles and orations; and some of ovid, terence, sallust, virgil, some medieval latin works, the "distichs" of cato, and sometimes erasmus and sir thomas more. the students also had to repeat prayers, recite the lord's prayer and the ten commandments, and to memorize catechisms. because the students came from the various social classes such as gentlemen, parsons, yeomen, mercers, and masons, they learned to be on friendly and natural terms with other classes. a typical school-day lasted from : am -to : pm. there were so many grammar schools founded and financed by merchants and guilds such as the mercers and fishmongers that every incorporated town had at least one. grammar schools were headed by schoolmasters, who were licensed by the bishop and paid by the town. flogging with a birch rod was used for discipline. however, the grammar schools did not become the breeding grounds for humanist ideas because the sovereigns were faced with religious atomism and political unrest, so used the grammar schools to maintain public order and achieve political and religious conformity. many grammar schools had preparatory classes called "petties" for boys and girls who could not read and write to learn to do so. the girls did not usually stay beyond the age of nine. this was done by a schoolmaster's assistant, a parish clerk, or some older boys. some founders of grammar schools linked their schools with particular colleges in the universities following the example of winchester being associated with new college, oxford; and eton with king's college, cambridge. the new charter of westminster in associated the school with christ church, oxford and trinity college, cambridge. the government of oxford university, which had been catholic, was taken from the resident teachers and put into the hands of the vice-chancellor, doctors, heads of colleges, and proctors. cambridge already had a strong reformed element from erasmus' influence. oxford university and cambridge university were incorporated to have a perpetual existence for the virtuous education of youth and maintenance of good literature. the chancellors, masters, and scholars had a common seal. oxford was authorized to and did acquire its own printing press. undergraduate students entered about age and resided in rooms in colleges rather than in scattered lodgings. the graduate fellows of the college who were m.a.s of under three years standing had the responsibility, instead of the university, for teaching the undergraduates. this led many to regard their fellowship as a position for life rather than until they completed their post-graduate studies. but they were still required to resign on marrying or taking up an ecclesiastical benefice. the undergraduates were fee-paying members of the college or poor scholars. some of the fee-paying members or gentlemen-commoners or fellow-commoners were the sons of the nobility and gentry and even shared the fellows' table. the undergraduate students were required to have a particular tutors, who were responsible for their moral behavior as well as their academic studies. it was through the tutors that modern studies fit for the education of a renaissance gentleman became the norm. those students not seeking a degree could devise their own courses of study with their tutors' permission. less than about % stayed long enough to get a degree. many students who were working on the seven year program for a master's degree went out of residence at college after the four year's "bachelor" course. students had text books to read rather than simply listening to a teacher read books to them. in addition to the lecturing of the m.a.s and the endowed university lectureships, the university held exercises every monday, wednesday, and friday in which the student was meant through disputation, to apply the formal precepts in logic and rhetoric to the practical business of public speaking and debate. final examinations were still by disputation. the students came to learn to read latin easily. students acted in latin plays. if a student went to a tavern, he could be flogged. for too elaborate clothing, he could be fined. fines for absence from class were imposed. however, from this time until , a young man's university days were regarded as a period for the "sowing of wild oats". all students had to reside in a college or hall, subscribe to the articles of the university, the queen's supremacy, and the prayer book. meals were taken together in the college halls. the universities were divided into three tables: a fellows' table of earls, barons, gentlemen, and doctors; a second table of masters of arts, bachelors, and eminent citizens, and a third table of people of low condition. professors, doctors, masters of arts and students were all distinguishable by their gowns. undergraduate education was considered to be for the purpose of good living as well as good learning. it was to affect the body, mind, manners, sentiment, and business, instead of just leading to becoming a better disputant. the emphasis on manners came mostly from an italian influence. the university curriculum included latin and greek languages and was for four years. the student spent at least one year on logic (syllogizing, induction, deduction, fallacies, and the application of logic to other studies), at least one year on rhetoric, and at least one year on philosophy. the latter included physics, metaphysics, history, law, moral and political philosophy, modern languages, and ethics (domestic principles of government, military history, diplomatic history, and public principles of government), and mathematics (arithmetic, geometry, algebra, music, optics, astronomy). the astronomy taught was that of ptolemy, whose view was that the celestial bodies revolved around a spherical earth, on which he had laid out lines of longitude and latitude. there were lectures on greek and latin literature, including aristotle, plato, and cicero. there were no courses on english history in the universities. about , the curriculum was changed to two terms of grammar, four terms of rhetoric, five terms of dialectic (examining ideas and opinions logically, e.g. ascertaining truth by analyzing words in their context and equivocations), three terms of arithmetic, and two terms of music. there were now negative numbers, irrational numbers such as square roots of non-integers, and imaginary numbers such as square roots of negative numbers. the circumference and area of a circle could be computed from its radius, and the pythagorean theorem related the three sides of a right triangle. also available were astrology, alchemy (making various substances such as acids and alcohols), cultivation of gardens, and breeding of stock, especially dogs and horses. astronomy, geometry, natural and moral philosophy, and metaphysics were necessary for a master's degree. the university libraries of theological manuscripts in latin were supplemented with many non-religious books. there were graduate studies in theology, medicine, music, and law, which was a merging of civil and canon law together with preparatory work for studying common law at the inns of court in london. in london, legal training was given at the four inns of court. students were called to dinner by a horn. only young gentry were admitted there. a year's residence there after university gave a gentleman's son enough law to decide disputes of tenants on family estates or to act as justice of the peace in his home county. a full legal education gave him the ability to handle all family legal matters, including property matters. many later became justices of the peace or members of parliament. students spent two years in the clerks' commons, and two in the masters' commons. besides reading textbooks in latin, the students observed at court and did work for practicing attorneys. after about four more years' apprenticeship, a student could be called to the outer bar. there was a real bar of iron or wood separating the justices from the attorneys and litigants. as "utter barrister" or attorney, he would swear to "do no falsehood in the court, increase no fees but be contented with the old fees accustomed, delay no man for lucre or malice, but use myself in the office of an attorney within the court according to my learning and discretion, so help me god, amen". students often also studied and attended lectures on astronomy, geography, history, mathematics, theology, music, navigation, foreign languages, and lectures on anatomy and medicine sponsored by the college of physicians. a tour of the continent became a part of every gentleman's education. after about eight years' experience, attorneys could become readers, who gave lecturess; or benchers, who made the rules. benchers, who were elected by other benchers, were entrusted with the government of their inn of court, and usually were king's counsel. five to ten years later, a few of these were picked by the queen for serjeant at law, and therefore eligible to plead at the bar of common pleas. justices were chosen from the serjeants at law. gresham left the royal exchange to the city and the mercer's company on condition that they use some of its profits to appoint and pay seven lecturers in law, rhetoric, divinity, music, physics, geometry, and astronomy to teach at his mansion, which was called gresham college. they were installed in according to his will. their lectures were free, open to all, and often in english. they embraced mathematics and new scientific ideas and emphasized their practical applications. a tradition of research and teaching was established in mathematics and astronomy. there were language schools teaching french, italian, and spanish to the aspiring merchant and to gentlemen's sons and daughters. many people kept diaries. letter writing was frequent at court. most forms of english literature were now available in print. many ladies read aloud to each other in reading circles and to their households. some wrote poetry and did translations. correctness of spelling was beginning to be developed. printers tended to standardize it. there was much reading of romances, jest books, histories, plays, prayer collections, and encyclopedias, as well as the bible. in schools and gentry households, favorite reading was edmund spenser's "faerie queen" about moral virtues and the faults and errors which beset them; erasmus' new testament, "paraphrases", "colloquies", and "adages"; sir thomas north's edition of plutarch's "lives of the noble grecians and romans"; elyot's "the book named the governor"; and hoby's translation of "the courtier". gentlemen read books on the ideals of gentlemanly conduct, such as "institucion of a gentleman" ( ), and laurence humphrey's "the nobles: or of nobilites". francis bacon's "essays or counsels civil and moral" were popular for their wisdom. in them he commented on many subjects from marriage to atheism. he cautioned against unworthy authority, mass opinion, custom, and ostentation of apparent wisdom. he urged the use of words with their correct meaning. at a more popular level were caxton's "the golden legend", baldwin's "mirror for magistrates", foxe's "book of martyrs" about english protestant who suffered at the stake, sensational stories and pamphlets, printed sermons (including those of switzerland's calvin), chronicles, travel books, almanacs, herbals, and medical works. english fiction began and was read. there were some books for children. books were copyrighted, although non-gentlemen writers needed a patron. at the lowest level of literacy were ballads. next to sermons, the printing press was kept busiest with rhymed ballads about current events. printed broadsheets on political issues could be distributed quickly. in london, news was brought to the governor of the news staple, who classified it as authentic, apocryphal, barber's news, tailor's news, etc. and stamped it. books were also censored for matter against the state church. this was carried out through the stationers' company. this company was now, by charter, the official authority over the entire book trade, with almost sole rights of printing. (schools had rights of printing). it could burn other books and imprison their printers. italian business techniques were set forth in textbooks for merchants, using italian terms of business: debit (debito), credit (credito), inventory (inventorio), journal (giornal), and cash (cassa). the arithmetic of accounting operations, including multiplication, was described in "an introduction for to lerne to reckonwith the penne or counters" in . accounting advice was extended to farmers as well as merchants in the "the pathway to perfectness in the accomptes of debitor and creditor" by james peele, a salter of london. it repeated the age-old maxim: ...receive before you write, and write before you pay, so shall no part of your accompt in any wise decay. the "marchants avizo" by johne browne, merchant of bristol, gave information on foreign currencies and keeping of accounts, and included specimens of various business documents such as insurance policies, and bills of exchange. it also advised: take heed of using a false balance or measure...covet not over familiarity amongst men it maketh thee spend much loss of time. be not hasty in giving credit to every man, but take heed to a man that is full of words, that hath red eyes, that goeth much to law, and that is suspected to live unchaste ... when thou promiseth anything be not stuck to perform it, for he that giveth quickly giveth double ... fear god...know thy prince...love thy parents ...give reverence to thy betters ...be courteous and lowly to all men... be not wise in thine own conceit. the old prohibitions of the now declining canon law were still observed. that is, one should not seek wealth for its own sake or beyond what was requisite for a livelihood in one's station, exploit a customer's difficulties to extract an extravagant price, charge excessive interest, or engross to "corner the market". the printing press had made possible the methodizing of knowledge and its dissemination to a lay public. knowledge associated with the various professions, occupations, and trades was no longer secret or guarded as a mystery, to be passed on only to a chosen few. the sharing of knowledge was to benefit the community at large. reading became an out-of-school activity, for instruction as well as for pleasure. in , graphite was discovered in england, and gave rise to the pencil. surveying accuracy was improved with the new theodolite, which determined directions and measured angles and used a telescope that pivoted horizontally and vertically. scientists had the use of an air thermometer, in which a column of air in a glass tube sitting in a dish of water contracted or expanded with changes in the temperature, causing the water to move up or down the tube. william shakespeare, a glovemaker's son, wrote plays about historical events and plays which portrayed various human personalities and their interactions with each other. they were enjoyed by all classes of people. his histories were especially popular. the queen and various earls each employed players and actors, who went on tour as a troupe and performed on a round open-air stage, with people standing around to watch. in london, theaters such as the globe were built specifically for the performance of plays, which before had been performed at inns. the audience applauded and hissed. there were costumes, but no sets. ordinary admission was d. before being performed, a play had to be licensed by the master of the revels to make sure that there was nothing detrimental to the peace and public order. elizabeth issued a proclamation forbidding unlicensed interludes or plays, especially concerning religion or government policy on pain of imprisonment for at least fourteen days. the common people still went to morality plays, but also to plays in which historical personages were portrayed, such as richard ii, henry iv, and henry v. some plays were on contemporary issues. musicians played together as orchestras. music with singing was a popular pastime after supper; everyone was expected to participate. dancing was popular with all classes. gentlemen played cards, dice, chess, billiards, and tennis. they fenced and had games on horseback. their deer-hunting diminished as forests were cut down for agriculture and the deer were viewed as an enemy eating crops. falconry diminished as hedges and enclosures displaced the broad expanses of land. country people enjoyed music, dancing, pantomime shows with masks, hurling, running, swimming, leap frog, blind man's buff, shovelboard played with the hands, and football between villages with the goal to get the ball into one's own village. football and shin-kicking matches often resulted in injuries. they bought ballads from traveling peddlers. early morning dew gathered in may and early june was thought to have special curative powers. there were many tales involving fairies, witches, devils, ghosts, evil spirits, angels, and monsters which were enjoyed by adults as well as children. many people still believed in charms, curses, divination, omens, fate, and advice from astrologers. the ghosts of the earth walked the earth, usually because of some foul play to be disclosed, wrong to be set right, to warn those dear to them of peril, or to watch over hidden treasure. good witches cured and healed. fairies blessed homes, rewarded minor virtues, and punished mild wrongdoing. when fairies were unhappy, the weather was bad. there were parties for children. the merry guild feast was no longer a feature of village life. there were fewer holydays and festivals. the most prosperous period of the laborer was closing. an agricultural laborer's yearly wage was about s., but his cost of living, which now included house rent, was about s. a year. in , daily wages in the summer for an agricultural laborer were about d. and for an artisan d. in in the county of rutland, daily wages for laborers were d. in summer and d. in winter; and for artisans were d. in summer and d. in winter. unemployment was widespread. there were endowed hospitals in london for the sick and infirm. there were others for orphans, for derelict children, and for the destitute. they worked at jobs in the hospital according to their abilities. there was also a house of correction for discipline of the idle and vicious by productive work. elizabeth continued the practice of touching people to cure scrofula, although she could not bring herself to fully believe in the reality of such cures, contrary to her chaplain and her physician. in the towns, shop shutters were let down to form a counter at the front of the shop. goods were made and/or stored inside the shop. towns held a market once a week. fairs occurred once or twice a year. at given times in the towns, everyone was to throw buckets of water onto the street to cleanse it. during epidemics in towns, there was quarantine of those affected to stay in their houses unless going out on business. their houses were marked and they had to carry a white rod when outside. the quarantine of a person lasted for forty days. the straw in his house was burned and his clothes treated. people who died had to be buried under six feet of ground. there was an outbreak of plague in london roughly every ten years. there was a pity for the distressed that resulted in towns voting money for a people of a village that had burned down or been decimated by the plague. communities were taxed for the upkeep and relief of the prisoners in the gaols in their communities. queen elizabeth was puzzling over the proper relationship between the crown and the church when richard hooker, a humble scholar, theologian, and clergyman, attempted to find a justification in reason for the establishment of the church of england as an official part of the governing apparatus of the nation. his thinking was a turning point from the medieval notion that god ordered society, including the designation of its monarch and its natural laws, and the belief in a divine structure with a great chain of being, beginning with god and working down through the hierarchy of angels and saints to men, beasts, and vegetables, which structure fostered order in society. hooker restated the concept of aristotle that the purpose of society is to enable men to live well. he wrote that although the monarch was head of state and head of religion, the highest authority in civil affairs was parliament, and in religion, the convocation. the monarch had to maintain divine law, but could not make it. from this later came the idea that the state derives its authority from the will of the people and the consent of the governed. protestant women had more freedom in marriage and were allowed to participate in more church activities compared to catholic women, but they were not generally allowed to become pastors. due to sensitivities on the part of both catholics and protestants about a female being the head of the church, elizabeth was given the title of "supreme governor" of the church instead of "supreme head". elizabeth was not doctrinaire in religious matters, but pragmatic. she always looked for ways to accommodate all views on what religious aspects to adopt or decline. images, relics, pilgrimages, and rosaries were discouraged. but the catholic practice of kneeling at prayer, and bowing and doffing caps at the name of jesus were retained. also retained was the place of the altar or communion table at the east end of churches, special communion wafers instead of common bread, and elaborate clergy vestments. the communion prayer contained words expressing both the catholic view that the wafer and wine contained the real presence of the body and blood of christ, and the protestant view that they were commemorative only. communion was celebrated only at easter and other great festivals. church services included a sermon and were in accordance with a reformed prayer book and in english, as was the bible. care was even taken not to use words that would offend the scots, lutherans, calvinists, or huguenots. people could hold what religious beliefs they would, even atheism, as long as they maintained an outward conformity. attendance at state church services on sunday mornings and evenings and holydays was enforced by a fine of d. imposed by the church wardens. babies were to be baptized before they were one month old or the parents would be punished. the new religion had to be protected. members of the house of commons, lawyers, schoolmasters were to take the oath of supremacy or be imprisoned and make a forfeiture; a second refusal brought death. when numerous anabaptists came from the continent to live in the port towns, the queen issued a proclamation ordering them to leave the realm because their pernicious opinions could corrupt the church. the new church still accepted the theory of the devil causing storms, but opposed ringing the holy church bells to attempt to drive him away. the sins of people were also thought to cause storms, and also plagues. in , the church of england wrote down its christian protestant beliefs in thirty-nine articles of religion, which specifically excluded certain catholic beliefs. they were incorporated into statute in establishing them as the tenets of the official religion of england. the first eighteen endorsed the ideas of one god, christ as the son of god who was sacrificed for all the sins of men, the resurrection of christ from the dead and ascension into heaven, the holy ghost proceeding from the father and the son, the books of the bible, the original sin of adam and his offspring, justification of man by faith in christ rather than by good works, goods works as the inspired fruit and proof of faith in christ, christ in the flesh as like man except for the absence of sin, the chance for sinners who have been baptised to be forgiven if they truly repent and amend their lives, the predestination of some to be brought by christ to eternal salvation and their minds to be drawn up to high and heavenly things, and salvation only by the name of christ and not by a sect. other tenets described the proper functions of the church, distinguishing them from roman catholic practice. specifically, the church was not to expound one place of scripture so that it was inconsistent with another place of scripture. because man can err, the church was not to ordain or enforce anything to be believed for necessity of salvation. explicitly renounced were the romish doctrine concerning purgatory, pardons, worshipping, adoration of images or relics, invocation of saints, and the use in church of any language, such as latin, not understood by the people. only the sacraments of baptism and the lord's supper were recognized. the lord's supper was to be a sign of the love that christians ought to have among themselves and a sacrament of redemption by christ's death. the wine in the cup of blessing as well as the bread of the lord's supper was to be taken by lay- people and to be a partaking of christ; there was no romish mass. excommunication was limited to those who openly denounced the church. anyone openly breaking the traditions or ceremonies of the church which were approved by common authority were to be rebuked. elizabeth told the bishops that she wished certain homilies to be read in church, which encouraged good works such as fasting, prayer, alms-giving, christian behavior, repentance, and which discouraged idolatry, gluttony, drunkenness, excess of apparel, idleness, rebellion, and wife-beating, however provoked. she considered homilies more instructive and learned than ministers' sermons, which were often influenced by various gentlemen and were inconsistent with each other. consecration of bishops and ministers was regulated. they were allowed to marry. the standard prayer was designated thus: "our father who art in heaven, hallowed be thy name. thy kingdom come. thy will be done, on earth as it is in heaven. give us this day our daily bread, and forgive us our offenses as we forgive those who have offended against us. and lead us not into temptation, but deliver us from evil. for thine is the kingdom, the power, and the glory forever and ever, amen." there was difficulty persuading educated and moral men to be church ministers, even though elizabeth expressed to the bishops her preference for ministers who were honest and wise instead of learned in religious matters. the bible was read at home and familiar to everyone. this led to the growth of the puritan movement. the puritans believed in the right of the individual christian to interpret the scriptures for himself by spiritual illumination. they opposed the mystical interpretation of the communion service. the puritans complained that the church exerted insufficient control over the morals of the congregation. their ideas of morality were very strict and even plays were thought to be immoral. the independent puritans were those protestants who had fled from mary's catholic reign to the continent, where they were persuaded to the ideas of john calvin of geneva. he stressed the old idea of predestination in the salvation of souls, which had in the past been accepted by nearly all english christian leaders, thinkers, and teachers, but not stressed. the act of conversion was a common experience among the early puritans. the concomitant hatred of past sins and love of god which was felt in thankfulness for mercy were proof of selection for salvation. the good works that followed were merely an obligation showing that one's faith was real, but not a way to salvation. the puritans also accepted calvin's idea of independent church government. they therefore thought that ministers and lay elders of each parish should regulate religious affairs and that the bishops, who were "petty popes", should be reduced to an equality with the rest of the clergy, since they did not rule by divine right. the office of archbishop should be eliminated and the head of state should not necessarily be governor of the church. these ideas were widely disseminated in books and pamphlets. the puritans disrupted the established church's sunday services, tearing the surplice off the minister's back and the wafers and wine from the altar rail. the puritans arranged "lectures" on sunday afternoons and on weekdays. these were given gratuitously or funded by boroughs. they were strict about not working on the sabbath, which day they gave to spiritual exercises, meditations, and works of mercy. the only work allowed was preparing meals for themselves, caring for their animals, and milking the cows. they enforced a strict moral discipline on themselves. the puritans formed a party in the house of commons. the puritan movement included william brewster, an assistant to a court official who was disciplined for delivering, upon pressure from the council, the queen's signed execution order for mary of scotland after the queen had told him to hold it until she directed otherwise. after exhausting every other alternative, the queen had reluctantly agreed with her privy council on the execution in of mary, queen of scots, who had been involved in a plot to assassinate her and claim the throne of england. elizabeth's council had persuaded her that it was impossible for her to live in safety otherwise. the debased coinage was replaced by a recoinage of newly minted coins with a true silver weight. goldsmiths, who also worked silver, often acted as guardians of clients' wealth. they began to borrow at interest at one rate in order to lend out to traders at a higher rate. this began banking. patents were begun to encourage the new merchant lords to develop local manufactures or to expand import and export trade. patents were for a new manufacture or an improved older one and determined the wages of its trades. there was chartering of merchant companies and granting of exclusive rights to new industries as monopolies. some monopolies or licenses were patents or copyrights of inventors. others established trading companies for trade to certain foreign lands and supporting consular services. people holding monopolies were accountable to the government. there were monopolies on certain smoked fish, fish oil, seal oil, oil of blubber, vinegar, salt, currants, aniseed, juniper berry liquor, bottles, glasses, brushes, pots, bags, cloth, starch, steel, tin, iron, cards, horn, ox shinbones, ashes, leather pieces, earth coal, calamite stone, powder, saltpeter, and lead manufacturing by-products. for far-flung enterprises and those where special arrangements with foreign countries was required, there was sharing of stock of companies, usually by merchants of the same type of goods. in joint-stock companies each member took a certain number of shares and all the selling of the goods of each merchant was carried on by the officials of the company. the device of joint stock might take the form of a fully incorporated body or of a less formal and unincorporated syndicate. the greatest joint-stock company was east india company, chartered in to trade there in competition with the dutch east india company. it was given a fifteen year monopoly on trade east of the southern tip of africa. unlike the muscovy company, and merchants of the staple, individual members could not trade on their own account, but only through the corporate body on its voyages. each particular voyage was regulated and assisted by the crown and privy council, for instance when further subscriptions were needed, or when carpenters were needed to be pressed into service for fitting out ships, or to deal with an unsuccessful captain. its charter retained many of the aspects of the medieval trade guild: power to purchase lands, to sue and be sued, to make by-laws, and to punish offenders by fine or imprisonment. admission was by purchase of a share in a voyage, redemption, presentation, patrimony (adult sons of members), and apprenticeship. purchase of a share in a voyage was the most common method. a share for the first ship cost one hundred pounds. cash payments for less than the price of a share could be invested for ultimate redemption. occasionally presentation or a faculty "for the making of a freeman" was granted to some nobleman or powerful member. members' liability was limited to their individual subscriptions. each voyage had ) a royal commission authorizing the company to undertake the expedition and vesting in its commanders powers for punishing offenses during the voyage, and quenching any mutiny, quarrels, or dissension that might arise; ) a code of instructions from the company to the admiral and to commanders of ships setting forth in great detail the scope and objects of the voyage together with minute regulations for its conduct and trade; ) authorization for coinage of money or export of specie (gold or silver); and ) letters missive from the sovereign to foreign rulers at whose ports the ships were to trade. the first voyage brought back spices that were sold at auction in london for ten times their price in the indies and brought to shareholders a profit equivalent to / % yearly for the ten years when the going interest rate was % a year. town government was often controlled by a few merchant wholesalers. the entire trade of a town might be controlled by its drapers or by a company of the merchant adventurers of london. the charter of the latter as of allowed a common seal, perpetual existence, liberty to purchase lands, and liberty to exercise their government in any part of the nation. it was controlled by a group of rich londoners, no more than , who owned the bulk of the cloth exported. there were policies of insurance given by groups of people for losses of ships and their goods. marine insurance was regulated. new companies were incorporated for many trades. they were associations of employers rather than the old guilds which were associations of actual workers. the ostensible reason was the supervision of the quality of the wares produced in that trade, though shoemakers, haberdashers, saddlers, and curriers exercised close supervision over these wares.companies paid heavily for their patents or charters. there was no sharp line between craftsman and shopkeeper or between shopkeeper and wholesale merchant. in london, an enterprising citizen could pass freely from one occupation to another. borrowing money for a new enterprise was common. industrial suburbs grew up around london and some towns became known as specialists in certain industries. the building crafts in the towns often joined together into one company, e.g. wrights, carpenters, slaters, and sawyers, or joiners, turners, carvers, bricklayers, tilers, wallers, plasterers, and paviors. these companies included small contractors, independent masters, and journeymen. the master craftsman often was a tradesman as well, who supplied timber, bricks, or lime for the building being constructed. the company of painters was chartered with a provision prohibiting painting by persons not apprenticed for seven years. the prosperous merchants began to form a capitalistic class as capitalism grew. competition for renting farm land, previously unknown, caused these rents to rise. the price of wheat rose to an average of s. per quarter, thereby encouraging tillage once more. there was steady inflation. with enclosure of agricultural land there could be more innovation and more efficiency, e.g. the time for sowing could be chosen. it was easier to prevent over-grazing and half-starved animals as a result. the complications of the open system with its endless quarrels and lawsuits were avoided. now noblemen talked about manure and drainage, rotation of crops, clover, and turnips instead of hunting, horses, and dogs. the breed of horses and cattle was improved. there were specializations such as the hunting horse and the coach horse. by royal proclamation of , there were requirements for the keeping of certain horses. for instance, everyone with lands of at least , pounds had to keep six horses or geldings able for demi-lances [rider bearing a light lance] and ten horses or geldings for light horsemen [rode to battle, but fought on foot]. one with under pounds but over marks yearly had to keep one gelding for a light horseman. dogs had been bred into various types of hounds for hunting, water and land spaniels for falconry, and other dogs as house dogs or toy dogs. there were no longer any wild boar or wild cattle. the turkey joined the cocks, hens, geese, ducks, pigeons, and peacocks in the farmyard. manure and dressings were used to fertilize the soil. hay became a major crop because it could be grown on grazing lands and required little care. there are new and bigger industries such as glassware, iron, brasswares, alum and coppers, gunpowder, paper, coal, and sugar. the coal trade was given a monopoly. coal was used for fuel as well as wood, which was becoming scarce. iron smelters increasingly used coal instead of charcoal, which was limited. iron was used for firebacks, pots, and boilers. good quality steel was first produced in with the help of german craftsmen, and a slitting mill was opened in . small metal goods, especially cutlery, were made, as well as nails, bolts, hinges, locks, ploughing and harrowing equipment, rakes, pitch forks, shovels, spades, and sickles. lead was used for windows and roofs. copper and brass were used to make pots and pans. pewter was used for plates, drinking vessels, and candlesticks. competition was the mainspring of trade and therefore of town life. the mode of travel of the gentry was riding horses, but most people traveled by walking. people carried passes for travel that certified they were of good conduct and not a vagrant or sturdy rogue. bands of roving vagabonds terrorized the countryside. after a land survey completed in there arose travel books with maps, itineraries, and mileage between towns in england and wales. also, the queen sent her official mail by four royal postal routes along high roads from london to various corners of the nation. horses are posted along the way for the mail-deliverer's use. however, private mail still goes by packman or common carrier. the nation's inland trade developed a lot. there were many more wayfaring traders operating from town inns. in , the first canal was built with locks at exeter. more locks and canals facilitated river travel. at london bridge, waterwheels and pumps were installed. new sea navigation techniques improved voyages. seamen learned to fix their positions, using an astrolabe or quadrant to take the altitude of the sun and stars and to reckon by the north star. they used a nocturnal, which was read by touch, to help keep time at night by taking the altitude of the stars. they calculated tides. to measure distances, they invented the traverse board, which was bored with holes upon lines, showing the points of the compass; by means of pegs, the steersman kept an account of the course steered. a log tied to a rope with knots at equal intervals was used to measure speed. there were compasses with a bearing dial on a circular plate with degrees up to noted thereon. seamen had access to compilations of arab mathematicians and astronomers and to navigational manuals and technical works on the science of navigation and the instruments necessary for precision sailing. for merchants there were maps, books about maps, cosmographical surveys, and books on the newly discovered lands. in john mercator produced a map taking into account the converging of the meridians towards the pole. on this chart, a straight line course would correspond to a mariner's actual course through the water on the earth's sphere, instead of having the inaccuracies of a straight line on a map which suggested that the world was flat. it was in use by . in william gilbert, son of a gentleman, and physician to queen elizabeth, wrote a book on the magnetic properties of the earth. he cultivated the method of experiment and of inductive reasoning from observation and insisted on the need for a search for knowledge not in books but in things themselves. he showed that the earth was a great magnet with a north pole and a south pole, by comparing it to lodestones made into spheres in which a north and south pole could be found by intersecting lines of magnetism indicated by a needle on the stone. the vertical dip of the needle was explained by the magnetic attraction of the north pole. he showed how a lodestone's declination could be used to determine latitude at sea. he showed how the charge of a body could be retained for a period of time by covering the body with some non-conducting substance, such as silk. he distinguished magnetism from electricity, giving the latter its name. he discovered that atmospheric conditions affected the production of electricity, dryness decreasing it, and moisture increasing it. he expounded the idea of copernicus that the earth revolves around the sun in a solar system. however, the prevailing belief was still that the earth was at the center of the universe. christmas was an especially festive time of good fellowship. people greeted each other with "good cheer", "god be with you", or "against the new year". carols were often sung and musicians played many tunes. there was dancing and gambling. there were big dinners with many kinds of meat and drink. a hearty fire heated all the house. many alms were given to beggars. parliament enacted laws and voted taxes. the queen, house of lords, and house of commons cooperated together. there was relatively little dissension or debating. bills in the house of lords were read, voted on, discussed, and passed with the lords, peers, bishops, and justices sitting in their places according to their degree. the justices sat on the wool sacks. a bar separated this area from the rest of the room, where the members of the commons stood. there were many bills concerning personal, local, or sectional interests, but priority consideration was given to public measures. the house of lords still had members. the queen appointed and paid the speaker, clerk, and sergeant at arms of the commons. the knights in the commons were almost invariably from the county's leading families and chosen by consensus of knights with free land of at least s. in the county court. in the towns, the electors might be the town corporation, holders of certain properties, all the freemen, all the rate-payers, or all the male inhabitants. disputed elections were not usually concerned with political issues, but were rivalries for power. the commons gradually won for its members freedom from arrest without its permission and the right of punishing and expelling members for crimes committed. tax on land remained at % of its estimated yearly income. the queen deferred to the church convocation to define christian faith and religion, thus separating church and state functions. the treasury sought to keep a balanced budget by selling royal land and keeping crown expenditures down. the crown carried a slight debt incurred before the queen's accession. violence was still a part of the texture of everyday life. private armories and armed gangs were not uncommon. agricultural laborers kept sword and bow in a corner of their fields. non-political brutal crime and homicides were commonplace. there were frequent local riots and disturbances, in the country and in the towns. occasionally there were large-scale rebellions. but the rebellion of the earl of essex in had no aftermath in violence. in , the queen issued a proclamation enforcing curfew for london apprentices, who had been misruly. the queen issued proclamations to certain counties to place vagrant soldiers or vagrants under martial law because of numerous robberies. she ordered the deportation of vagrant irishmen in . theft and robbery were so usual that there were names for various techniques used. a ruffler went with a weapon to seek service, saying that he was a servitor in the wars, but his chief "trade" was to rob poor wayfaring men and market women. a prigman went with a stick in his hand like an idle person, but stole clothes off hedges. a whipjack begged like a mariner, but with a counterfeit license (called a "gibe"); he mostly robbed booths in fairs or pilfered ware from stalls, which was called "heaving of the booth". a frater had a counterfeit license to beg for some hospital, but preyed upon poor women coming and going to market. a quire bird was a person recently let out of prison, and was commonly a horse stealer. an upright man carried a truncheon of a staff and called others to account to him and give him a share or "snap" of all that they had gained in one month, and he often beat them. he took the chief place at any market walk and other assemblies. workers at inns often teamed up with robbers, telling them of wares or money travelers were carrying so the robber could profitably rob them after they left the inn. francis drake sailed around the world from to . walter ralegh made an expedition to north america in with the queen's authority to "discover barbarous countries, not actually possessed of any christian prince and inhabited by christian people, to occupy and enjoy". he found and named the land of virginia in honor of the queen, who was a virgin, and started a colony on roanoke island there. drake and ralegh plundered spanish ships for cargo such as american gold and silver, much of which was used to pay for the war with spain and much going to investors. seamen on navy and pirate ships raided captured vessels to seize personal possessions of the spanish on board. the experience fighting spanish ships led to improvements in ship design; building ships was no longer merely by copying another ship or a small model. when the seas were unsafe because of the war with spain, the export of english wool was disturbed and later replaced by trading from world ports. many london merchants grew rich from using their ships for pirating. in , a spanish armada came to invade england, return it to catholicism, and stop the pirating of spanish ships. in that battle off england's shores, drake and other experienced sea fighters led two hundred english ships, of which about were built to sink other ships rather than to board and capture them. these new english ships were longer and narrower and did away with the towering superstructures at bow and stern. this made them more maneuverable and easier to sail. also, the english guns were lighter, more numerous, and outranged the spanish guns. so the smaller english ships were able to get close enough to fire broadside after broadside against the big spanish troop-transport galleons, without being fired upon. the english sent fire ships into the spanish fleet when it was anchored, causing it's ships to disperse in a panic. then the direction of the wind forced the spanish galleons northward, where most of them were destroyed by storms. the english seamen had been arbitrarily pressed into this service. a royal proclamation of offered a reward of pounds for information on libels against the queen. there had been mounting demonstrations against her monopolies, which mostly affected household items. there had been abuses of monopolies, such as the steel monopoly had been sold for pounds s., but steel was then sold at d. per pound instead of the former / d. per pound. further the steel was mixed and of a lesser quality. this so damaged the knife and sword industry that about workers lost their jobs from it and became beggars. monopoly was a severe burden to the middle and poorer classes. also, the power of patent holders to arrest and imprison persons charged with infringing upon their rights was extended to any disliked person. when the house of commons protested against monopolies in , elizabeth reduced them. she addressed her council and the commons saying that "mr. speaker, you give me thanks, but i doubt me that i have more cause to thank you all than you me; and i charge you to thank them of the lower house from me. for had i not received a knowledge from you, i might have fallen into the lapse of an error only for lack of true information. since i was queen yet did i never put my pen to any grant but that upon pretext and semblance made unto me, it was both good and beneficial to the subject in general, though a private profit to some of my ancient servants who had deserved well. but the contrary being found by experience, i am exceedingly beholding to such subjects as would move the same at the first. and i am not so simple to suppose but that there be some of the lower house whom these grievances never touched; and for them i think they speak out of zeal to their countries and not out of spleen or malevolent affection, as being parties grieved. and i take it exceedingly gratefully from them, because it gives us to know that no respects or interests had moved them other than the minds they bear to suffer no diminution of our honor and our subjects' love unto us, the zeal of which affection tending to ease my people and knit their hearts unto me, i embrace with a princely care. for above all earthly treasures i esteem my people's love, more than which i desire not to merit. that my grants should be grievous unto my people and oppressions to be privileged under color of our patents, our kingly dignity shall not suffer it. yea, when i heard it i could give no rest unto my thoughts until i had reformed it. shall they (think you) escape unpunished that have thus oppressed you, and i have been respectless of their duty and regardless of our honor? no, no, mr. speaker, i assure you, were it not more for conscience' sake than for any glory or increase of love that i desire, these errors, troubles, vexations, and oppressions done by these varlets and low persons (not worthy the name of subjects) should not escape without condign punishment. but i perceive they dealt with me like physicians who, ministering a drug, make it more acceptable by giving it a good aromatical savor; or when they give pills, do gild them all over. i have ever used to set the last judgment day before my eyes and so to rule as i shall be judged, to answer before a higher judge. to whose judgment seat i do appeal that never thought was cherished in my heart that tended not unto my people's good. and now if my kingly bounties have been abused and my grants turned to the hurts of my people, contrary to my will and meaning, or if any in authority under me have neglected or perverted what i have committed to them, i hope good will not lay their culps [sins] and offenses to my charge. who, though there were danger in repealing our grants, yet what danger would i not rather incur for your good than i would suffer them still to continue? i know the title of a king is a glorious title, but assure yourself that the shining glory of princely authority hath not so dazzled the eyes of our understanding but that we well know and remember that we also are to yield an account of our actions before the great judge. to be a king and wear a crown is a thing more glorious to them that see it than it is pleasant to them that bear it. for myself, i was never so much enticed with the glorious name of a king or royal authority of a queen as delighted that god hath made me his instrument to maintain his truth and glory, and to defend this kingdom from peril, dishonor, tyranny, and oppression. there will never queen sit in my seat with more zeal to my country, care to my subjects, and that will sooner with willingness venture her life for your good and safety, than myself. for it is not my desire to live or reign longer than my life and reign shall be for your good. and though you have had and may have many princes more mighty and wise sitting in this seat, yet you never had or shall have any that will be more careful and loving." about , richard hakluyt, a bristol clergyman, wrote "a particular discourse concerning western discoveries". this was to become the classic statement of the case for english colonization. it held out hope that the english would find needed timber for masts, pitch, tar, and ashes for soap. in rome in , giordano bruno, an italian monk and priest, was burned alive at the stake by a court of the inquisition for not recanting, although tortured, his heretical and blasphemous philosophy. he had opined that christianity was irrational and had no scientific basis. he declared that christ was only a skillful magician, that the bible could not be taken literally, that god and nature were not separate as taught by genesis, that the catholic church encouraged ignorance from the instinct of self-preservation, and that the earth and planets revolved around the sun, as did other planets around the "fixed" stars and other suns. the jesuits, a new catholic order brimming with zeal, sent missionaries to england to secretly convert people to catholicism. the practice of catholicism had gone underground in england, and some catholic householders maintained catholic priests in hidden places in their homes. although estate tails (estates descendible only to the heirs of the body of the original feofee) by law could not be sold or given away, this was circumvented by the fraudulent use of a "straw man". in collaboration with the possessor of the property, this straw man sued the possessor asserting that the property had been wrongfully taken from the straw man. the possessor pleaded that the crier of the court who had warranted the title should be called to defend the action. he failed to appear until after judgment had been given to the straw man. then the straw man conveyed it to the possessor or his nominee in fee simple. the law the following statute of artificers regulated labor for the next two centuries: no master or mistress may employ a servant for a term less than one year in the crafts of clothiers, woolen cloth weavers, tuckers, fullers, clothworkers, shearmen, dyers, hosiers, tailors, shoemakers, glovemakers, tanners, pewterers, bakers, brewers, cutlers, smith, farriers, curriers, saddlers, spurriers, turners, cappers, hatmakers, feltmakers, bow-makers, arrow-makers, arrowhead-makers, butchers, cooks, or millers. also, every craftsman unmarried or under age who is not working must accept employment by any person needing the craft work. also, any common person between and who is not working must accept employment in agriculture. and, unmarried women between and may be required by town officials to work by the year, the week, or day for wages they determine. all artificers and laborers hired by the day or week shall work from am to pm. all artificers must labor at agriculture at haytime and harvest to avoid the loss of grain or hay. every householder who raises crops may receive as an apprentice a child between and to serve in agriculture until he is age . a householder in a town may receive a child as an apprentice for years, but merchants may only take as apprentices children of parents with s. freehold. no one may be a craftsman until he has served seven years as an apprentice. these artificers may have children as apprentices: smith, wheelmaker, ploughmaker, millmaker, miller, carpenter, rough mason, plasterer, a timber sawer, an ore burner, a lime burner, brickmaker, bricklayer, tilemaker, tiler, layer of slate roofs, layer of wood shingle roofs, layer of straw roofs, cooper, earthen potter, linen weaver, housewife who weaves wool for sale or for household use. purposes of the statute of artificiers were to advance agriculture, diminish idleness, and inhibit migration to the towns. it excluded three fourths of the rural population.) troops of vagabonds with weapons in the highways who pretend to be soldiers or mariners have committed robberies and murders. so all vagabonds shall settle down in some service or labor or trade. a vagabond or mighty strong beggar [able to work] shall be whipped. incorrigible and dangerous rogues shall be branded with an "r" mark on the left shoulder and be put to labor, because banishment did not work as they came back undetected. if one is caught again begging, he shall be deemed a felon. if a person marries a second time while the first spouse is still living, it shall be a felony and thus punishable by death. no attainder shall result in the forfeiture of dower by the offender's wife nor disinheritance of his heirs. no one shall forge a deed of land, charter, sealed writing, court roll or will. no one shall libel or slander so as to cause a rebellion. embezzlement or theft by a servant of his master's goods of s. or more is a felony. cut-purses and pick-purses shall not have benefit of clergy. a person robbing a house of s. by day when no one is there shall not have benefit of clergy, because too many poor persons who cannot hire a servant to look after their house when they go to work have been robbed. benefit of clergy may not be had for stabbing a person who has no weapon drawn, if he dies within six months. fraudulent and secret conveyances made to retain the use of one's land when one sells the land to a bona fide purchaser for value in fee simple, fee tail, for life, for lives, or for years are void. crown officials such as treasurers, receivers, accountants, and revenue collectors shall not embezzle crown funds and shall be personally liable for arrears. persons forcibly taking others across county lines to hold them for ransom and those taking or giving blackmail money and those who burn barns or stacks of grain shall be declared felons and shall suffer death, without any benefit of clergy or sanctuary. any person killing any pheasant, partridge, dove, pigeon, duck or the like with any gun, crossbow, stonebow, or longbow, or with dogs and nets or snares, or taking the eggs of such from their nests, or tracing or taking hares in the snow shall be imprisoned for three months unless he pays s. per head or, after one month's imprisonment, have two sureties bound for s. this is because the past penalty of payment hasn't deterred offenders, who frequently cannot pay. persons affected by the plague may not leave their houses or be deemed felons and suffer death. this is to avoid further infection. the towns may tax their inhabitants for the relief of infected persons. devising or speaking seditious rumors are penalized by the pillory and loss of both ears for the first offense; and pounds and six months imprisonment for the second offense. slandering the queen is penalized by the pillory and loss of one ear, or by marks and three months imprisonment, at the choice of the offender. the second offense is a felony. printing, writing, or publishing seditious books is a felony without benefit of clergy. wishing the queen dead, prophesying when she would die, or who would succeed her to the crown is a felony without benefit of clergy. attainders for these felonies shall not work corruption of the blood [heirs may inherit the property of the felon]. a debtor may not engage in a fraudulent collusion to sell his land and goods in order to avoid his creditors. this was designed to remedy the following problem: a native or denizen merchant in wholesale or retail goods who leaves the nation to defraud his creditors shall be declared a bankrupt. the chancellor may conduct an investigation to ascertain his land, house, and goods, no matter who may hold them. they shall be appraised and sold to satisfy his debts. lands, tenements, goods and chattels of accountants teller, or receiver who are in debt may be obtained by court order to satisfy the debt by garnishing the heir of the debtor after the heir has reached and for the years next ensuing. loan contracts for money lent may not be for more than s. for each s. yearly (i.e. % interest). all loans of money or forbearing of money in sales of goods not meeting this requirement shall be punishable by forfeit of the interest only. pawn brokers accepting stolen goods shall forfeit twice their value to the owner from whom stolen. when the hue and cry is raised for a robbery in a hundred, and other hundreds have been negligent, faulty, or defective in pursuit of the robber, then they must pay half the damages to the person robbed, while the hundred in which the robbery occurred pays the other half. robbers shall be pursued by horse and by foot. the mother and reputed father of any bastard who has been left to be kept at the parish where born must pay weekly for the upkeep and relief of such child, so that the true aged and disabled of the parish get their relief and to punish the lewd life. any innkeeper, victualer, or alehouse keeper who allows drinking by persons other than those invited by a traveler who accompanies him during his necessary abode there or other than laborers and handicraftsmen in towns upon the usual working days for one hour at dinner time to take their diet in an alehouse or other than laborers and workmen following their work to any given town to sojourn, lodge, or victual in any inn, alehouse or victualing house shall forfeit s. for each offense. this is because the use of inns, alehouses, and victualing houses was intended for relief and lodgings of traveling people and people not able to provide their own victuals, but not for entertainment and harboring of lewd and idle people who become drunk. no butcher may cut any hide or any ox, bull, steer, or cow so that it is impaired or may kill any calf under five weeks old. no butcher may be a tanner. no one may be a tanner unless that person has apprenticed as such for seven years, or is the son or wife of a tanner who has tanned for four years, or is a son or daughter of a tanner who inherits his tanhouse. tanners may not be shoemakers, curriers, butchers, or leatherworkers. only tanners may buy raw hides. only leatherworkers may buy leather. only sufficiently strong and substantial leather may be used for sole-leather. curriers may not be tanners. curriers may not refuse to curry leather. london searchers shall inspect leather, seal and mark that which is sufficient, and seize any that is insufficiently tanned, curried, wrought, or used. the incorporated company of ship masters may erect beacons and marks on the seashores and hills above, because certain steeples and other marks used for navigation have fallen down and ships therefore have been lost in the sea. there shall be one sheriff per county, because now there are enough able men to supply one per county. no one shall bribe an elector to vote for a certain person for fellow, scholar, or officer of a college, school, or hall or hospital so that the fittest persons will be elected, though lacking in money or friends, and learning will therefore be advanced. no master at a university may lease any land unless / of it is retained for raising crops to supply the colleges and halls for food for their scholars. fish, but no meat, may be eaten on wednesdays so that there will be more fishermen and mariners and repair of ports. (this was done because fishing had declined since the dissolution of the monasteries, where fissh was eaten eveery friday. eating fish instead of meat in lent in the springtime remained a tradition.) every person over years of age shall wear on sundays a wool knitted cap made by the cappers, except for maidens, ladies, gentlewomen, noble persons, and every lord, knight, and gentlemen with , s. of land, since the practice of not wearing caps has damaged the capping industry. this employed cappers and poor people they had employed and the decrepit and lame as carders, spinners, knitters, parters, forsers, thickers, dressers, dyers, battelers, shearers, pressers, edgers, liners, and bandmakers. no man under the degree of knight may wear a hat or cap of velvet. caps may not be made of felt, but only knit wool. only hats may be made of felt. this is to assist the craft of making wool caps. no one may make any hat unless he has served as apprentice for at least seven years. this is to prevent false and deceitful hat- making by unskillful persons. no one shall make false linen by stretching it and adding little pieces of wood, which is so weak that it comes apart after five washings. timber shall not be felled to make logs for fires for the making of iron. no one may take small fish to feed to dogs and pigs. only nets with mesh leaving three inches spaces may be used to catch fish. cottage and dwelling houses for workmen or laborers in mineral works, coal mines, or quarries of stone or slate for the making of brick, tile, lime, or coals shall be built only within a mile from such works. dwelling houses beyond this must be supported by four acres of land to be continually occupied and manured as long as the dwelling house is inhabited or else forfeit s. per month to the queen. cottages and dwelling houses for sailors or laborers working on ships for the sea shall be built only within a mile of the sea. a cottage may be built in a forest or park for a game keeper of the deer. a cottage may be built for a herdman or shepherd for the keeping of cattle or sheep of the town. a cottage may be built for a poor, lame, sick, aged, or disabled person on waste or common land. more families than one may not be placed in one cottage or dwelling house. (this is a zoning law.) any person with land in fee-simple may establish a hospital, abiding place, or house of correction to have continuance forever as a corporation for the sustenance and relief of the maimed, poor, or disabled people as to set the poor to work. the net income shall not exceed , s. yearly. no new iron mills or furnaces for making or working of any iron or iron metal shall be established in the country around london and the owners of carriages of coals, mines and iron which have impaired or destroyed the highways shall also carry coal ashes, gravel, or stone to repair these highways or else make a payment of s. d. for each cart load not carried. for repairing of highways, the supervisors may take the rubbish or smallest stones of any quarry along the road in their precinct. persons with s. in goods or s. in lands shall find two able men in their parish community to repair the highways yearly. landowners of oxford shall be taxed for the repair of the highway and bridge there. the price of barrels shall be set by mayors of the towns where they are sold. rugs shall weigh pounds at least and be yards at least in length and at most / yard wide. no cattle may be put in any enclosed woods that have been growing less than five years. at the end of five years growth, calves may be put in. at the end of six years growth, cattle may be put in. woods around london shall not be felled to be converted to coals for iron-works because london needs the wood to make buildings and for fireplaces. every melter and maker of wax from honeycombs shall put his mark on every piece of his wax to be sold. wrought wax such as in lights, staff-torches, red wax or sealing wax, book candles, or searing candles shall bear its maker's mark. all barrels of honey shall bear the mark of the honeymaker. wool cloth, cotton cloth, flannel cloth, hose-yarn, hats, and caps shall be dyed black only with dye from the woad plant and not with any false black dye. no one shall take or kill any pheasants with nets or devices at nighttime because such have become scarce. pontage [toll for upkeep and repair of bridges] shall be taken at certain bridges: carts d., horse and pack d., a flock of sheep d. no bishop may lease land for more than twenty-one years or longer than the lives of three designated persons. no bishop may alienate any possession of their sees to the crown. such are void. watermen transporting people on the thames river shall have served as apprentice to a waterman for five years or have been the son of a waterman. this is to prevent the loss of lives and goods by inexperienced watermen. spices and potions, including pepper, cloves, mace, nutmeg, cinnamon, ginger, almonds, and dates, which have usually been garbled [cleaned or sorted by sifting] shall be garbled, cleaned, sorted, and sealed by the garbler before sale. this is to prevent mingled, corrupt, and unclean spices and potions from being sold. plasterers shall cease painting because it has intruded upon the livelihoods of painters who have been apprenticed as such. fishermen and their guides may continue to use the coastland for their fishing activities despite the trespass to landowners. since sails for ships in recent years have been made in the realm instead of imported, none shall make such cloth unless he has been apprenticed in such or brought up in the trade for seven years. this is to stop the badness of such cloth. tonnage and poundage on goods exported and imported shall be taken to provide safeguard of the seas for such goods. all persons must go to the established church on sundays and holy days. the penalty was at first forfeiture d. along with church punishment, and later, pounds per month and being bound by two sureties for pounds for good behavior, and if the pounds is not paid, then forfeiture of all goods to be applied to the amount due and two-thirds of one's land. these laws were directed against catholicism, but were laxly enforced as long as worship was not open and no one wore priestly clothes: ) the writing, preaching, or maintaining of any foreign spiritual jurisdiction shall be punished by forfeiture of goods or, if the goods are not worth pounds, one year imprisonment, for the first offense; forfeiture of goods and lands and the king's protection, for the second offense; and the penalty for high treason for the third offense. ) any person leading others to the romish [catholic] religion is guilty of high treason. the penalty for saying mass is marks and one year's imprisonment. the penalty for hearing mass is marks and one year's imprisonment. if one is suspected of being a jesuit or priest giving mass, one must answer questions on examination or be imprisoned. ) papists [those who in conscience refused to take the oath of supremacy of the crown over the church] must stay in their place of abode and not go five miles from it, unless licensed to do so for business, or else forfeit one's goods and profits of land for life. if a copyholder, land is forfeited to one's lord. but if the goods are not worth s. or the land is not worth at least s., the realm must be abjured. otherwise, the papist is declared a felon without benefit of clergy. ) if a child is sent to a foreign land for catholic education, he cannot inherit lands or goods or money, unless he conforms to the established church on his return. there is also a pound penalty for the persons who sent him. judicial procedure the star chamber became the central criminal court after , and punished perjury, corruption, malfeasance throughout the legal system such as jury corruption and judicial bribery, rioting, slander, and libel. its procedure was inquisitory rather than accusative. it heard witnesses in camera [not in the presence of the suspected]. trial was by systematic interrogation of the suspected on oath, with torture if necessary in treason cases. silence could be taken for a confession of guilt. there was no jury. queen elizabeth chose not to sit on this court. punishments were imprisonment, fines, the pillory, ear cropping or tacking, whipping, stigmata on the face, but not death or any dismemberment except for the ears. (the gentry was exempt from whipping.) because the publication of many books and pamphlets against the government, especially the church, had led to discontents with the established church and to the spreading of sects and schisms, the star chamber in held that the printing trade was to be confined to london, except for one press at oxford and one at cambridge. no book or pamphlet could be printed unless the text was first seen, examined, and allowed by the archbishop of canterbury or the bishop of london. book publishers in violation were to be imprisoned for six months and banned from printing; their equipment was to be destroyed. wardens were authorized to search wherever "they shall have reasonable cause of suspicion", and to seize all such books and pamphlets printed. but printers continued to print unlicensed material. the ecclesiastical high commission [later called the court of high commission or high court of ecclesiastical causes] took over criminal cases formerly heard by the church courts. it also heard matters of domestic morals. it was led by bishops and privy council members who in were authorized by a statute of parliament to keep order within the church, discipline the clergy, and punish such lay offenses as were included in the ecclesiastical jurisdiction. obstinate heresy is still a crime punished by death, but practically, the bishops have little power of forcing heretics to stand trial. if anyone maintains papal authority, he forfeits his goods; on a third conviction, he is a traitor. the clergyman who adopts a prayer book other that the prescribed one commits a crime. excommunication has imprisonment behind it. elizabeth gave this court the power to fine and imprison, which the former church courts had not had. at first, the chief work was depriving papists of their benefices. suits on titles to land were restricted to the common law courts and no longer to be heard in the star chamber, chancery court, or in the court of requests (equity for poor people). the queen's privy council investigated sedition and treason, security of the regime, major economic offenses, international problems, civil commotion, officials abusing their positions, and persons perverting the course of justice. it frequently issued orders to justices of the peace, for instance to investigate riots and crimes, to enforce the statutes against vagrancy and illegal games, to regulate alehouses, to ensure that butchers, innkeepers, and victualers did not sell meat on fish days, and to gather information needed from the counties. the justices of the peace decided misdemeanors such as abduction of heiresses, illegal entry, petty thievery, damage to crops, fence-breaking, brawling, personal feuds, drunken pranks, swearing, profanation of the sabbath, alehouse nuisances, drunkenness, perjury, and malfeasance by officials. they held petty and quarter sessions. the justices of the peace had administrative duties in control of vagrancy, upkeep of roads and bridges, and arbitration of lawsuits referred to them by courts. they listed the poor in each parish community, assessed rates for their maintenance, and appointed overseers to administer the welfare system, deploying surplus funds to provide houses of correction for vagrants. raw materials such as wool, flax, hemp, and iron were bought upon which the able-bodied unemployed could be set to work at the parochial level. they determined wages in their districts, with no statutory ceiling on them, for all laborers, weavers, spinsters, workmen and workwomen working by the day, week, month, or year, or taking any work at any person's hand. there were about justices of the peace per county. all were unpaid. they performed these duties for the next years. the court of queen's bench and exchequer indirectly expanded their jurisdiction to include suits between citizens, formerly heard only the court of common pleas or chancery. chancery interrogated defendants. chancery often issued injunctions against suits in the common law courts. trial by combat was very rare. the justices of assize rode on circuit twice a year to enforce the criminal law and reported their assessment of the work of the justices of the peace back to the privy council. the duty to hear and determine felonies was taken from justices of the peace by . the justices of assize did this work. accused people could wait for years in gaol before their case was heard. felonies included breach of prison, hunting by night with painted faces, taking horses to scotland, stealing of hawks' eggs, stealing cattle, highway robbery, robbing on the sea, robbing houses, letting out of ponds, cutting of purses, deer-stealing at night, conjuring and witchcraft, diminution of coin, counterfeiting of coins, and impenitent roguery and idleness. the penalty was death. many people were hanged for the felony of theft over d. some bold men accused of felony refused to plead so that they could not be tried and found guilty. they died of heavy weights being placed on their bodies. but then their property could go to their heirs. trials of noblemen for treason shall be by their peers. stewards of leet and baron courts may no longer receive, in their own names, profits of the court over d. since they have vexed subjects with grievous fines and amercements so that profits of justice have grown much. jurors shall be selected from those people who have at least s. annual income instead of s. because sheriffs have been taking bribes by the most able and sufficient freeholders to be spared at home and the poorer and simpler people, who are least able to discern the causes in question, and most unable to bear the charges of appearance and attendance in such cases have been the jurors. also there had been inflation. defendants sued or informed against upon penal statutes may appear by attorney so that they may avoid the inconvenience of traveling a long distance to attend and put to bail. not only sheriffs, but their employees who impanel juries or execute process in the courts shall take an oath of office. a hundred shall answer for any robbery therein only if there has been negligence or fault in pursuit of the robber after a hue and cry is made because the past law has been too harsh and required payment for offenses from people unable to pay who have done everything reasonable to catch the robber. pleadings had to be in writing and oral testimony was given by sworn witnesses. case decisions are in books compiled by various reporters who sit in on court hearings rather than in year books. in the common law, trespass has given rise to the offshoot branch of "ejectment", which becomes the common means of recovering possession of land, no matter what kind of title the claimant asserts. trespass on the case has given rise to the offshoot branch of "trover" [finding another's goods and converting them to one's own use]. the use of the action of trover gradually supplants the action of detinue, which involves compurgation. in the common law courts, the action of assumpsit for enforcing certain promises is used more than the action of debt in those cases where there is a debt based on an agreement. the essential nature of "consideration" in contract is evolving from the procedural requirements for the action of assumpsit. consideration may consist in mutual promises, a precedent debt, or a detriment incurred by one who has simultaneously received a promise related to the detrimental action. consideration must be something, an act, or forbearance of an act that is of value. for instance, forbearance to sue a worthless claim is not consideration. the abstract concept of contract as an agreement between two parties which is supported by consideration is developing as the number of various agreements that are court enforceable expands. for instance the word "consideration" is used in hayward's case in in the court of wards on the construction of a deed. sir rowland hayward was seised in fee of the doddington manor and other lands and tenements, whereof part was in demesne, part in lease for years with rents reserved, and part in copyhold, by indenture, "in consideration of a certain sum of money" paid to him by richard warren and others, to whom he demised, granted, bargained and sold the said manor, lands and tenements, and the reversions and remainders of them, with all the rents reserved upon any demise, to have and to hold to them and their assigns, presently after the decease of sir rowland, for the term of years. it was held that the grantees could elect to take by bargain and sale or by demise, each of which had different consequences. in another case, a delivered s. to b to the use of c, a woman, to be delivered to her on the day of her marriage. before this day, a countermanded it, and called home the money. it was held in the chancery court that c could not recover because "there is no consideration why she should have it". in a case concerning a deed, a sold land to b for s., with confidence, that it would be to the use of a. this bargain "hath a consideration in itself ... and such a consideration is an indenture of bargain and sale". it was held that the transaction was not examinable except for fraud and that a was therefore estopped. a court reporter at the king's bench formulated two principles on consideration of the case of wilkes against leuson as: "the heir is estopped from falsifying the consideration acknowledged in the deed of feoffment of his ancestor. where a tenant in capite made a feoffment without consideration, but falsely alleged one in the deed on an office finding his dying seised, the master of the wards cannot remove the feoffees on examining into the consideration, and retain the land until &c. and though the heir tended, still if he do not prosecute his livery, the queen must admit the feoffees to their traverse, and to have the farm, &c." the court reporter summarized this case as follows: wilkes, who was merchant of the staple, who died in february last past, made a feoffment in the august before his death to one leuson, a knight, and his brother, and another, of the manor of hodnel in the county of warwick; and the deed, (seen) for seven thousand pounds [ , s.] to him paid by the feoffees, of which sum he made acquittance in the same deed (although in fact and in truth not a half-penny was paid), gave, granted, and confirmed &c "habendum eir et hoeredibus suis in perpetuum, ad proprium opus et usum ipsorum a. b. et c. in perpetuum," and not "hoeredum suorum," together with a clause of warranty to them, their heirs and assigns, in forma proedicta: and notwithstanding this feoffment he occupied the land with sheep, and took other profits during his life; and afterwards his death was found on a diem clausit extremum by office, that he died seised of the said manor in fee, and one i. wilkes his brother of full age found his next heir, and a tenure in capite found, and now within the three months the said feoffees sued in the court of wards to be admitted to their traverse, and also to have the manor in farm until &c. and although the said i. wilkes the brother had tendered a livery, yet he had not hitherto prosecuted it, but for cause had discontinued. and whether now the master of the wards at his discretion could remove the feoffees by injunction out of possession upon examination of the said consideration of the said feoffment which was false, and none such in truth, and retain it in the hands of the queen donec et quousque &c. was a great question. and by the opinion of the learned counsel of that court he cannot do it, but the queen is bound in justice to give livery to him who is found heir by the office, or if he will not proceed with that, to grant to the tenderers the traverse, and to have the farm, &c. the request above mentioned. and this by the statutes ... and note, that no averment can be allowed to the heir, that the said consideration was false against the deed and acknowledgment of his ancestor, for that would be to admit an inconvenience. and note the limitation of the use above, for divers doubted whether the feoffees shall have a fee-simple in the sue, because the use is not expressed, except only "to themselves (by their names) for ever;" but if those words had been wanting, it would have been clear enough that the consideration of seven thousand pounds had been sufficient, &c. for the law intends a sufficient consideration by reason of the said sum; but when the use is expressed otherwise by the party himself, it is otherwise. and also the warranty in the deed was "to them, their heirs, and assigns, in form aforesaid," which is a declaration of the intent of wilkes, that the feoffees shall not have the use in fee simple; and it may be that the use, during their three lives, is worth seven thousand pounds, and more &c. and suppose that the feoffment had been "to have to them and their heirs to the proper use and behoof of them the feoffees for the term of their lives for ever for seven thousand pounds," would they have any other estate than for the term of their lives in the use? i believe not; and so in the other case. a last example of a case concerning consideration is that of assaby and others against lady anne manners and others. the court reporter characterized the principle of the case as: "a. in consideration of his daughter's marriage covenants to stand seised to his own use for life, and that at his death she and her husband shall have the land in [fee] tail, and that all persons should stand seised to those uses, and also for further assurance. after the marriage he bargains and sell with fine and recovery to one with full notice of the covenants and use; this is of no avail, but on the death of a. the daughter and her husband may enter." the court reporter summarized this case as follows: a. was seised of land in fee, and in consideration of a marriage to be had between his daughter and heir apparent, and b. son and heir apparent of c. he covenanted and agreed by indenture with c. that he himself would have, hold, and retain the land to himself, and the profits of during his life, and that after his decease the said son and daughter should have the land to them and to the heirs of their two bodies lawfully begotten, and that all persons then or afterwards seised of the land should stand and be seised immediately after the marriage solemnized to the use of the said a. for the term of his life, and after his death to the use of the said son and daughter in tail as above, and covenanted further to make an assurance of the land before a certain day accordingly &c. and then the marriage took effect; and afterwards a. bargained and sold the land for two hundred marks (of which not a penny is paid) to a stranger, who had notice of the first agreements, covenants, and use, and enfeoffed divers persons to this last use, against whom a common recovery was had to his last use; and also a. levied a fine to the recoverers before any execution had, and notwithstanding all these things a. continued possession in taking the profits during his life; and afterwards died; and the son and daughter entered, and made a feoffment to their first use. and all this matter was found in assize by assaby and others against lady anne manners and others. and judgment was given that the entry and feoffment were good and lawful, and the use changed by the first indenture and agreement. yet error was alleged. the judgment in the assize is affirmed. the famous shelley's case stands for the principle that where in any instrument an estate for life is given to the ancestor, and afterwards by the same instrument, the inheritance is limited whether mediately, or immediately, to his heirs, or heirs of his body, as a class to take in succession as heirs to him, the word "heirs" is a word of limitation, and the ancestor takes the whole estate. for example, where property goes to a for life and the remainder goes to a's heirs, a's life estate and the remainder merge into a fee in a. a can sell or devise this interest. edward shelley was a tenant in fee tail general. he had two sons. the older son predeceased his father, leaving a daughter and his wife pregnant with a son. edward had a common recovery (the premises being in lease for years) to the use of himself for term of his life, after his decease to the use of the male heirs of his body, and of the male heirs of the body of such heirs, remainder over. after judgment and the awarding of the writ of seisin, but before its execution, edward died. after his death, and before the birth of his older son's son, the writ of seisin was executed. the younger son entered the land and leased it to a third party. afterwards, the son of the older son was born. he entered the land and ejected the third party. it was held that the younger son had taken quasi by descent until the birth of the older son's son. the entry by the older son's son was lawful. the third party was lawfully ejected. (shelley's case, king's bench, , english reports - full reprint, vol. , page .) about , london authorities punished nicholas jennings alias blunt for using elaborate disguises to present himself as an epileptic to beg for handouts from the public. he was pilloried, whipped, and pulled behind a cart through the streets. he was kept at the bridewell and was set to work at a mill. chapter the times: - due in part to increasing population, the prices of foodstuffs had risen sixfold from the later s, during which it had been stable. this inflation gradually impoverished those living on fixed wages. landlords could insist on even shorter leases and higher rents. london quadrupled in population. many lands that were in scattered strips, pasture lands, waste lands, and lands gained from drainage and disafforestation were enclosed for the introduction of convertible agriculture (e.g. market-oriented specialization) and only sometimes for sheep. the accompanying extinguishment of common rights was devastating to small tenants and cottagers. gentry and yeomen benefited greatly. there was a gradual consolidation of the land into fewer hands and demise of the small family farm. in towns, the mass of poor, unskilled workers with irregular work grew. prices finally flattened out in the s. society became polarized with a wealthy few growing wealthier and a mass of poor growing poorer. this social stratification became a permanent fixture of english society. poverty was no longer due to death of a spouse or parent, sickness or injury, or a phase in the life cycle such as youth or old age. many full-time wage earners were in constant danger of destitution. more subdivided land holdings in the country made holdings of cottagers minuscule. but these were eligible for parish relief under the poor laws. beside them were substantial numbers of rogues and vagabonds wandering the roads. these vagrants were usually young unmarried men. there were no more licensed liveries of lords. during the time to , there were distinct social classes in england which determined dress, convention in comportment which determined face-to-face contacts between superiors and inferiors, order of seating in church, place arrangement at tables, and rank order in public processions. it was influenced by power, wealth, life-style, educational level, and birth. the various classes lived in separate worlds; their paths did not cross each other. people moved only within their own class. each class had a separate existence as well as a different life style from the other classes. so each class developed a wariness of other classes. however, there was much social mobility between adjacent classes. at the top were the gentry, about % of the population. theirs was a landed wealth with large estate mansions. they employed many servants and could live a life of leisure. their lady wives often managed the household with many servants and freely visited friends and went out shopping, riding, or walking. they conversed with neighbors and made merry with them at childbirths, christenings, churchings, and funerals. gentlemen usually had positions of responsibility such as lords of manors and leaders in their parishes. these families often sent the oldest son to university to become a justice of the peace and then a member of parliament. they also served as county officers such as high constable of their hundred and grand jury member. their social, economic, and family ties were at least countywide. they composed about gentle families, including the peers, who had even more landed wealth, which was geographically dispersed. after the peers were: baronets (created in ), knights, esquires, and then ordinary gentlemen. these titles were acquired by being the son of such or by purchase. most gentry had a house in london, where they spent most of their time, as well as country mansions. about / of the land was in the hands of , of the nobility and landed gentry due in part to estate tails constructed by attorneys to favor hereditary interests. the gentry had also profited by commerce and possessions in the colonies. the country life of a country squire or gentleman dealt with all the daily affairs of a farm. he had men plough, sow, and reap. he takes part in the haying and getting cut grass under cover when a rain came. his sow farrows; his horse is gelded; a first lamb is born. he drags his pond and takes out great carps. his horses stray and he finds them in the pound. boys are bound to him for service. he hires servants, and some work out their time and some run away. knaves steal his sheep. his hog is stabbed. he and a neighbor argue about the setting up of a cottage. he borrows money for a daughter's dowry. he holds a leet court. he attends church on sunday and reads the lesson when called upon. he visits the local tavern to hear from his neighbors. country folk brawl. wenches get pregnant. men commit suicide, usually by hanging. many gentlemen spent their fortunes and died poor. new gentlemen from the lower classes took their places. the second class included the wealthier merchants and professional men of the towns. these men were prominent in town government. they usually had close family ties with the gentry, especially as sons. when wealthy enough, they often bought a country estate. the professional men included military officers, civil service officials, attorneys, some physicians, and a few clergymen. the instabilities of trade, high mortality rates in the towns, and high turnover rate among the leading urban families prevented any separate urban interest group arising that would be opposed to the landed gentry. also included in this second group were the most prosperous yeomanry of the countryside. the third class was the yeomanry at large, which included many more than the initial group who possessed land in freehold of at least s., partly due to inflation. freehold was the superior form of holding land because one was free to sell, exchange, or devise the land and had a political right to vote in parliamentary elections. other yeomen were those who possessed enough land, as copyholder or leaseholder, to be protected from fluctuations in the amount of the annual harvest, that is, at least acres. a copyholder rented land from a lord for a period of years or lives, usually three lives including that of the widow, and paid a substantial amount whenever the copyhold came up for renewal. the copyholder and leaseholder were distinguished from the mere tenant-at-will, whose only right was to gather his growing crop when his landlord decided to terminate his tenancy. the average yeoman had a one and a half story house, with a milkhouse, a malthouse, and other small buildings attached to the dwelling. the house would contain a main living room, a parlor, where there would be one or more beds, and several other rooms with beds. no longer was there a central great hall. cooking was done in a kitchen or over the open fire in the fireplace of the main room. furniture included large oak tables, stools, long bencches with or without backs, chests, cupboards, and a few hard-backed simple chairs. dishware was wood or pewter. the yeomen often became sureties for recognizances, witnesses to wills, parish managers, churchwardens, vestrymen, the chief civil officers of parishes and towns, overseers of the poor, surveyors of bridges and highways, jurymen and constables for the justices of the peace, and sheriffs' bailiffs. the families and servants of these yeomen ate meat, fish, wheaten bread, beer, cheese, milk, butter, and fruit. their wives were responsible for the dairy, poultry, orchard, garden, and perhaps pigs. they smoked and cured hams and bacon, salted fish, dried herbs for the kitchen or lavender and pot-pourri for sweetening the linen, and arranged apples and roots in lofts or long garrets under the roof to last the winter. they preserved fruits candied or in syrup. they preserved wines; made perfumes, washes for preserving the hair and complexion, rosemary to cleanse the hair, and elder-flower water for sunburn; distilled beverages; ordered wool hemp, and flax to spin for cloth (the weaving was usually done in the village); fashioned and sewed clothes and house linens; embroidered; dyed; malted oats; brewed; baked; and extracted oils. many prepared herb medicines and treated injuries, such as dressing wounds, binding arteries, and setting broken bones. wives also ploughed and sowed, weeded the crops, and sheared sheep. they sometimes cared for the poor and sold produce at the market. some yeomen were also tanners, painters, carpenters, or blacksmiths; and as such they were frequently brought before the justices of the peace for exercising a craft without having served an apprenticeship. the third class also included the freemen of the towns, who could engage independently in trade and had political rights. these freemen were about one-third of the male population of the town. the fourth class included the ordinary farmer leasing by copyhold, for usually years, five to fifty acres. from this class were drawn sidesmen [assistants to churchwardens] and constables. they had neither voice nor authority in government. their daily diet was bacon, beer, bread, and cheese. also in this class were the independent urban craftsmen who were not town freemen. their only voice in government was at the parish level. the fifth and lowest class included the laborers and cottagers, who were usually tenants at will. they were dependent on day labor. they started work at dawn, had breakfast for half an hour at six, worked until dinner, and then until supper at about six; in the summer they would then do chores around the barns until eight or nine. some were hedgers, ditchers, ploughmen, reapers, shepherds, and herdsmen. the cottagers' typical earnings of about s. a day amounted to about shillings a year, which was almost subsistence level. accordingly they also farmed a little on their four acres of land with garden. some also had a few animals. they lived in one or two room cottages of clay and branches of trees or wood, sometimes with a brick fireplace and chimney, and few windows. they ate bread, cheese, lard, soup, and greens. if a laborer was unmarried, he lived with the farmer. theirs was a constant battle for survival. they often moved, because of deprivation, to seek opportunity elsewhere. the town wage-earning laborers ranged from journeymen craftsmen to poor casual laborers. the mass of workers in london were not members of guilds, and the crime rate was high. the last three classes also contained rural craftsmen and tradesmen, who also farmed. the variety of trades became very large, e.g. tinsmiths, chain smiths, pewterers, violin makers, and glass painters. the curriers, who prepared hides for shoemakers, coachmakers, saddlers, and bookbinders, were incorporated. the fourth and fifth classes comprised about three fourths of the population. then there were the maritime groups: traders, ship owners, master and seamen, and the fishers. over one fourth of all households had servants. they were the social equals of day laborers, but materially better off with food and clothing plus an allowance of money of two pounds [ s.] a year. those who sewed got additional pay for this work. there was no great chasm between the family and the servants. they did not segregate into a parlor class and a kitchen class. the top servants were as educated as their masters and ate at the same table. great households had a chaplain and a steward to oversee the other servants. there was usually a cook. lower servants ate together. servants were disciplined by cuffs and slaps and by the rod by master or mistress. maids wore short gowns, a large apron, and a gypsy hat tied down over a cap. chamber maids helped to dress their mistresses. servants might sleep on trundle beds stored under their master's or mistress's bed, in a separate room, or on the straw loft over the stables. a footman wore a blue tunic or skirted coat with corded loop fasteners, knee-britches, and white stockings. he walked or ran on foot by the side of his master or mistress when they rode out on horseback or in a carriage and ran errands for him, such as leading a lame horse home or running messages. a good footman is described in this reference letter: "sir, - you wrote me lately for a footman, and i think this bearer will fit you: i know he can run well, for he has run away twice from me, but he knew the way back again: yet, though he has a running head as well as running heels (and who will expect a footman to be a stayed man) i would not part with him were i not to go post to the north. there be some things in him that answer for his waggeries: he will come when you call him, go when you bid him, and shut the door after him; he is faithful and stout, and a lover of his master. he is a great enemy to all dogs, if they bark at him in his running; for i have seen him confront a huge mastiff, and knock him down. when you go a country journey, or have him run with you a-hunting, you must spirit him with liquor; you must allow him also something extraordinary for socks, else you must not have him wait at your table; when his grease melts in running hard, it is subject to fall into his toes. i send him to you but for trial, if he be not for your turn, turn him over to me again when i come back..." dress was not as elaborate as in elizabethan times. for instance, fewer jewels were worn. ladies typically wore a brooch, earrings, and pearl necklaces. men also wore earrings. watches with elaborate cases were common. women's dresses were of satin, taffeta, and velvet, and were made by dressmakers. pockets were carried in the hand, fastened to the waist by a ribbon, or sewn in petticoats and accessible by a placket opening. the corset was greatly reduced. women's hair was in little natural-looking curls, a few small tendrils on the forehead with soft ringlets behind the ears, and the back coiled into a simple knot. men also wore their hair in ringlets. they had pockets in their trousers, first as a cloth pouch inserted into an opening in the side seam, and later sewn into the side seam. the bereaved wore black, and widows wore a black veil over their head until they remarried or died. rouge was worn by lower class women. toothbrushes, made with horsehair, were a new and costly luxury. the law dictating what classes could wear what clothes was difficult to enforce and the last such law was in . merchants who had become rich by pirating could now afford to extend their trading ventures well beyond the atlantic sea. cotton chintzes, calicoes, taffetas, muslins, and ginghams from india now became fashionable as dress fabrics. simple cotton replaced linen as the norm for napkins, tablecloths, bed sheets, and underwear. then it became the fashion to use calicoes for curtains, cushions, chairs, and beds. its inexpensiveness made these items affordable for many. there was a cotton-weaving industry in england from about , established by cotton workmen who fled to england in from antwerp, which had been captured. by , there were automatic weaving looms in london which could be operated by a novice. even large houses now tended to do without a courtyard and became compacted into one soaring and stately whole. a typical country house had deep-set windows of glass looking into a walled green court with a sundial in it and fringed around with small trees. the gables roofs were steep and full of crooks and angles, and covered with rough slate if there was a source for such nearby. there was an extensive use of red tile, either rectangular or other shapes and with design such as fishscales. the rooms are broad and spacious and include hall, great parlor, little parlor, matted chamber, and study. in the hall was still the great, heavy table. dining tables were covered with cloth, carpet, or printed leather. meals were increasingly eaten in a parlor. noble men now preferred to be waited upon by pages and grooms instead of by their social equals as before. after dinner, they deserted the parlor to retire into drawing rooms for conversation and desserts of sweet wine and spiced delicacies supplemented by fruit. afterward, there might be dancing and then supper. in smaller parlors, there was increasing use of oval oak tables with folding leaves. chests of drawers richly carved or inlaid and with brass handles were coming into increased use. walls were lined with panels and had pictures or were hung with tapestry. carpets, rugs, and curtains kept people warm. there were many stools to sit on, and some arm chairs. wide and handsome open staircases separated the floors. upstairs, the sitting and bedrooms open into each other with broad, heavy doors. bedrooms had four-post beds and wardrobes with shelves and pegs. under the roof are garrets, apple-lofts, and root-chambers. underneath is a cellar. outside is a farmyard with outbuildings such as bake house, dairy, cheese-press house, brewery, stilling house, malt house, fowl house, dove cot, pig stye, slaughter-house, wood house, barns, stable, and sometimes a mill. there were stew-ponds for fish and a park with a decoy for wild fowl. there was also a laundry, carpenter's bench, blacksmith's forge, and pots and equipment of a house painter. in the s, towns were fortified by walled ditches instead of relying on castles, which couldn't contain enough men to protect the townspeople. also in towns, water was supplied by local pumps and wells. in , a thirty-eight-mile aqueduct brought spring water into london. in the country, floors were of polished wood or stone and strewn with rushes. a ladies' attendant might sleep the same bedroom on a bed which slid under the ladies' bed. apprentices and shop boys had to sleep under the counter. country laborers slept in a loft on straw. bread was made in each household. there were bedroom chairs with enclosed chamber pots. wood fires were the usual type. coal was coming into use in the towns and near coal mines. charcoal was also used. food was roasted on a spit over a fire, baked, or broiled. people still licked their fingers at meals. the well-to-do had wax candles. tallow dips were used by the poor and for the kitchen. people drank cordials and homemade wines made with grapes, currants, oranges, or ginger. some mead was also drunk. tobacco, potatoes, tea, asparagus, kidney beans, scarlet runners, cardoons (similar to artichokes), horseradish, sugarcane, and turkeys for christmas, were introduced from the new world, china, and india. tea was a rare and expensive luxury. coffee was a new drink. with the cane sugar was made sweetened puddings, pies, and drinks. the potato caused the advent of distillation of concentrated alcohol from fermented potato mashes. there was a distiller's company by . distilleries' drinks had higher alcoholic content than wine or beer. the merchant adventurers sold in town stores silks, satins, diamonds, pearls, silver, and gold. there were women peddlers selling hats and hosiery from door to door and women shopkeepers, booksellers, alehouse keepers, linen drapers, brewers, and ale- wives. london had polluted air and water, industrial noise, and traffic congestion. work on farms was still year-round. in january and february, fields were ploughed and harrowed and the manure spread. also, trees and hedges were set, fruit trees pruned, and timber lopped. in march and april, the fields were stirred again and the wheat and rye sown. in may gardens were planted, hop vines trained to poles, ditches scoured, lambs weaned, and sheep watched for "rot". in june sheep were washed and sheared, and fields were spread with lime and clay, and manured. in july hay was cut, dried, and stacked. in august crops were harvested, which called for extra help from neighbors and townsmen who took holidays at harvesting. then there was threshing, and the sowing of winter wheat and rye. in the autumn, cider from apples and perry from pears might be made. by november the fall planting was finished and the time had come for the killing of cattle and hanging up their salted carcasses for winter meat. straw would be laid down with dung, to be spread next spring on the fields. stock that could not live outdoors in winter were brought into barns. government regulated the economy. in times of dearth, it ordered justices of the peace to buy grain and sell it below cost. it forbade employers to lay off workers whose products they could not sell. it used the star chamber court to enforce economic regulations. enclosures of land were made to carry on improved methods of tillage, which yielded more grain and more sheep fleece. drainage of extensive marsh land created more land for agriculture. waste land was used to breed game and "fowling" contributed to farmers' and laborers' livelihoods. killing game was not the exclusive right of landowners, but was a common privilege. the agricultural laborer, who worked for wages and composed most of the wage- earning population, found it hard to make ends meet. there were food riots usually during years of harvest failure, in which organized groups seized foodstuffs being transported or in markets. also, there were enclosure riots, in which organized groups destroyed hedges and fences erected in agrarian reorganization to restrict access to or to subdivide former common pasture land. these self- help riots were last resorts to appeals. they were relatively orderly and did not expand into random violence. the rioters were seldom punished more than a fining or whipping of the leaders and action was taken to satisfy their legitimate grievances. the poor came to resent the rich and there was a rise in crime among the poor. penal laws were frequently updated in an effort to bring more order. in , weekly wages for a mason were s. or s., for a laborer were s. or s., for a carpenter s. or s. an unskilled laborer received s. a day. there were conventions of paternalism and deference between neighbors of unequal social status. a social superior often protected his lessers from impoverishment for instance, the landlord lessened rents in times of harvest failure. a social superior would help find employment for a lesser person or his children, stand surety for a recognizance, intervene in a court case, or have his wife tend a sick member of his lesser's family. a social obligation was felt by most of the rich, the landlords, the yeomen farmers, and the clergy. this system of paternalism and social deference was expressed and reinforced at commonly attended village sports and games, dances, wakes and "ales" (the proceeds of which went to the relief of a certain person in distress), "rush-bearings", parish feasts, weddings, christenings, "churchings" to give thanks for births, and funerals. even the poor were buried in coffins. also there was social interaction at the local alehouse, where neighbors drank, talked, sang, and played at bowls or "shove goat" together. quarrelling was commonplace. for instance, borough authorities would squabble over the choice of a schoolmaster; the parson would carry on a long fight with parishioners over tithe hens and pigs; two country gentlemen would continue a vendetta started by their great-grandfathers over a ditch or hunting rights; the parishioners would wrangle with the churchwardens over the allocation of pews. the position of one's pew reflected social position. men tried to keep the pews of their ancestors and the newly prosperous wanted the recognition in the better pews, for which they had to pay a higher amount. but, on the other hand, farmers were full of good will toward their neighbors. they lent farm and kitchen equipment, helped raise timbers for a neighbor's new barn, sent food and cooked dishes to those providing a funeral feast and to the sick and incurable. village standards of behavior required that a person not to drink to excess, quarrel, argue, profane, gossip, cause a nuisance, abuse wife or children, or harbor suspicious strangers, and to pay scot and bear lot as he was asked. neighbors generally got along well and frequently borrowed and loaned small sums of money to each other without interest for needs that suddenly arose. bad behavior was addressed by the church by mediation and, if this failed, by exclusion from holy communion. there was also whipping and the stocks. marital sex was thought to be good for the health and happiness of the husband and enjoyable by wives. the possibility of female orgasm was encouraged. both women and men were thought to have "seed" and drank certain potions to cause pregnancy or to prevent birth. some argued that orgasm of both partners was necessary for the "seed" of the male and female to mix to produce pregnancy. most women were in a virtual state of perpetual pregnancy. both catholics and protestants thought that god wanted them to multiply and cover the earth. catholics thought that the only goal of sex was procreation. men were considered ready for marriage only when they could support a family, which was usually at about age . brides were normally virgins, but there was bridal pregnancy of about %. women usually married at about age . marriages were usually within one's own class and religion. the aristocracy often initiated matches of their children for the sake of continuity in the family estates and tried to obtain the consent of their children for the match in mind. the age of consent to marry was for boys and for girls. girls in arranged marriages often married at , and boys before they went to university. but the girls usually stayed with their parents for a couple of years before living with their husbands. if married before puberty, consummation of the marriage waited for such time. in other classes, the initiative was usually taken by the child. dowries and marriage portions usually were given by the parents of the bride. wet-nurses frequently were used, even by puritans. there were no baby bottles. many babies died, causing their parents much grief. about / of women's deaths occurred during childbirth. a child was deemed to be the husband's if he was within the four seas, i.e. not in foreign lands, for an agreed length of time. illegitimacy was infrequent, and punished by church-mandated public penance by the mother and lesser penance and maintenance by the father. the church court punished adultery and defamation for improper sexual conduct. the established church still taught that the husband was to be the authority in marriage and had the duty to provide for, protect, and maintain his wife. wives were to obey their husbands, but could also admonish and advise their husbands without reproach. in literature, women were portrayed as inferior to men intellectually and morally as well as physically. in reality wives did not fit the image of women portrayed by the church and literature. quarrels between husband and wife were not uncommon and were not stopped by a husband's assertion of authority. wives were very active in the harvesting and did casual labor of washing, weeding, and stone-picking. farmers' and tradesmen's wives kept accounts, looked after the garden, orchard, pigs, and poultry; brewed beer; spun wool and flax; and acted as agents in business affairs. wives of craftsmen and tradesmen participated actively in their husbands' shops. wives of weavers spun for their husband's employers. wives of the gentry ran their households with their husbands. the lady of a large mansion superintended the household, ordering and looking after the servants, and seeing to the education of her children. mothers handed down their recipes to their daughters. women still did much needlework and embroidering for clothing and house, such as cushions, screens, bed curtains, window curtains, hangings, footstools, book covers, and small chests of drawers for valuables. liking simplicity, puritan women did less of this work. naming one's wife as executor of one's will was the norm. jointures [property for a widow] were negotiated at the betrothal of ladies. widows of manorial tenants were guaranteed by law one-third of family real property, despite creditors. but most testators went beyond this and gave a life interest in the farm or family house. so it was customary for a widow to remain in occupation of the land until her death or remarriage. few widows or widowers lived with one of their children. widows usually had their husband's guild rights and privileges conferred upon them, e.g. to receive apprentices. in london, custom gave / of a deceased husband's estate to his wife on his death, but / if there were no children. the other part went according to his will. if a widow did not remarry in memory of her husband, she was esteemed. but remarriage was common because the life expectancy after birth was about years. sons of the well-to-do went into law, the church, the army, or the navy. if not fit for such, they usually went into a trade, apprenticing, for instance, with a draper, silk merchant, or goldsmith. sometimes a son was sent to the house of a great man as a page or esquire to learn the ways of courtiers and perhaps become a diplomat. the guild with its master and their employees was being replaced by a company of masters. james i ruled over both england and scotland. he had come from scotland, so was unfamiliar with english love of their rights, passion for liberty and justice, and extensive discussing of religion and quoting scripture. when he came to the throne, he had a conference with a group of puritans who asked for certain reforms: ceremonies such as the cross in baptism and the ring in marriage should not be used, only educated men competent to preach should be made ministers, bishops should not be allowed to hold benefices that they did not administer, and minor officials should not excommunicate for trifles and twelve-penny matters. he not only denied their requests, but had the english bible revised into the king james version, which was published in . this was to replace the popular geneva bible written by english protestant refugees from catholic queen mary's reign, which he did not like because some of its commentary was not highly favorable to kings. james didn't believe a king had to live by the law; he hadn't as king of scotland. he tried to imbue into england the idea of a divine right of kings to rule that he had held in scotland. the established church quickly endorsed and preached this idea. the selection of the clergy of the parish churches was now often in the hands of the parishioners, having been sold to them by the patron lord of the manor. some patrons sold the right of selection to a tradesman or yeoman who wished to select his son or a relative. some rights of selection were in the hands of bishops, the colleges, and the crown. the parish clergyman was appointed for life and removed only for grave cause. most parishioners wanted a sermon created by their minister instead of repetitious homilies and constant prayer. they thought that the object of worship in church was to rouse men to think and act about the problems of the world. in , the king mandated that clergymen quote scripture only in context of the book of articles of religion of or the two books of homilies and not preach any sermon on sunday afternoon except on some part of the catechism or some text out of the creed, ten commandments, or the lord's prayer. the puritan movement grew. about % of the protestants were puritans. these included country gentlemen and wealthier traders. they dressed simply in gray or other drab colors and wore their hair short to protest the fashion of long curls. they lived simply and disapproved of dancing because it induced lasciviousness and of theater because of its lewdness. theaters and brothels still shared the same neighborhoods, the same customers, and sometimes the same employees. prostitutes went to plays to find customers; men shouldered and shoved each other in competing to sit next to attractive women to get to know them. the puritans also disapproved of cock fights because they led to gambling and disorder, and maypole celebrations because of their paganism. there was less humor. many became stoics. the puritan church ceremonies were plain, with no ornamentation. puritans prayed several times a day and read the bible to each other in family groups to look for guidance in their conduct and life. they asked for god to intervene in personal matters and looked for signs of his pleasure or displeasure in happenings such as a tree falling close but not touching him, or his horse throwing him without injury to him. when there was an illness in the family or misfortune, they examined their past life for sins and tried to correct shortcomings. they circulated records of puritan lives including spiritual diaries. they believed in the equality of men and that a good man was better than a bad peer, bishop, or king. puritan influence made families closer and not merely dependent on the will of the husband or father. there was a sense of spiritual fellowship among family members as individuals. they emphasized the real need of a lasting love relationship between husband and wife, so a mutual liking that could develop into love between a young couple in an arranged match was essential. most puritans felt that the bishops were as tyrannical as the pope had been and that more reform was needed. they favored the presbyterian form of church government developed by john calvin in switzerland. the presbyter was the position below bishop. parishes were governed by boards consisting of a minister and lay elders elected by the parishioners. these boards sent elected representatives to councils. all lay elders and ministers had equal rank with each other. the calvinist god preordained salvation only for the elect and damnation and everlasting punishment for the rest of humanity, but the puritans had an optimism about avoiding this damnation. they believed that at his conversion a person received grace, which was a sign that he was predestined for salvation. they rejected all ecclesiastical institutions except as established by each parish over its own elected pastor and members. they rejected the established church's control from the top by bishops. they believed in negotiating directly with god for the welfare of the soul without the priest or church organization. the fear of witchcraft grew with puritanism. poor decrepit old defenseless women, often deformed and feeble-minded, were thought to be witches. their warts and tumors were thought to be teats for the devil to suck or the devil's mark. cursing or ill-tempers, probably from old age pains, or having cats were further indications of witchery. when the king learned in that the english puritans had prevented certain recreations after the sunday service, he proclaimed that the people should not be restrained from lawful recreations and exercise such as dancing, may-games, whitsunales, morris-dances, may-pole sports, archery for men, leaping, and vaulting. also women could carry rushes to decorate the church as they had done in the past. his stated purpose was to prevent people such as catholics from being deterred from conversion, to promote physical fitness for war, and to keep people from drinking and making discontented speeches in their ale houses. still unlawful on sunday were bear and bull baitings and bowlings. besides the puritans, there were other independent sects, such as the congregationalists, whose churches gathered together by the inspiration of jesus. this sect was started by english merchants residing in holland who set up congregations of englishmen under their patronage there; they kept minister and elders well under their control. the baptists emerged out of the independents. they believed that only adults, who were capable of full belief, and not children, could be baptized. they also believed that it was the right of any man to seek god's truth for himself in the scriptures and that obedience to the state should not extend beyond personal conscience. one fourth of all children born did not live to the age of ten, most dying in their first year. babies had close caps over their head, a rattle, and slept in a sturdy wood cradle that rocked on the floor, usually near the hearth. babies of wealthier families had nurses. the babies of ladies were suckled by wet nurses. parents raised children with affection and tried to prepare them to become independent self-sustaining adults. there was less severity than in tudor times, although the maxim "spare the rod and spoil the child" was generally believed, especially by puritans, and applied to even very young children. in disciplining a child, an admonition was first used, and the rod as a last resort, with an explanation of the reasons for its use. there were nursery rhymes and stories such as "little bo-peep", "jack and the beanstalk", "tom thumb", "chicken little", and robin hood and king arthur tales, and probably also "puss in boots", "red ridinghood", "cinderella", "beauty and the beast", "bluebeard" and aesop's fables. "little jack horner" who sat in a corner was a satire on the puritan aversion to christmas pudding and sense of conscious virtue. toys included dolls, balls, drums, and hobby horses. children played "hide and seek", "here we go around the mulberry bush", and other group games. school children were taught by "horn books". this was a piece of paper with the alphabet and perhaps a religious verse, such as the paternoster prayer, that was mounted on wood and covered with thin horn to prevent tearing. little girls cross-stitched the alphabet and numerals on samplers. block alphabets were coming into use. most market towns had a grammar school which would qualify a student for university. they were attended by sons of noblemen, country squires [poor gentlemen], merchants, and substantial yeomen, and in some free schools, the poor. school hours were from : a.m. to noon or later. multiplication was taught. if affordable, families had their children involved in education after they were small until they left home at about fifteen for apprenticeship or service. otherwise, children worked with their families from the age of seven, e.g. carding and spinning wool, until leaving home at about fifteen. there were boarding schools such as winchester, eton, westminster, st. paul's, and merchant taylors'. there, senior boys selected for conduct and ability supervised younger boys. they thereby got experience for a future in public life. the system was also a check on bullying of the weak by the strong. the curriculum included lilly's "grammar"; aesop; terence's roman comic plays; virgil's "aeneid", the national epic of rome; cicero's "letters" reflecting roman life; sallust's histories showing people and their motives; caesar's "commentaries" on the gallic and civil wars; horace's "epistles" about life and poetry; poet ovid's "metamorphoses" on adventures and love affairs of deities and heroes, "fasti" on roman religious festivals and customs; donatus' grammar book; and other ancient latin authors. football, with hog bladders, and tennis were played. these schools were self-supporting and did their own farming. private schools for girls were founded in and around london. they were attended by daughters of the well-to-do merchant class, nobility, and gentry. they were taught singing, playing of instruments, dancing, french, fine sewing, embroidery, and sometimes arithmetic. there were not many girls' boarding schools. fewer served in the house of some noble lady as before. most commonly, the sons and daughters of gentlemen and nobles were taught by private tutors. a tutor in the house educated the girls to the same extent as the boys. frequently, the mother educated her daughters. a considerable number of girls of other backgrounds such as the yeomanry and the town citizenry somehow learned to read and write. boys began at university usually from age to , but sometimes as young as . the universities provided a broad-based education in the classics, logic and rhetoric, history, theology, and modern languages for gentlemen and gave a homogenous national culture to the ruling class. there was a humanist ideal of a gentleman scholar. the method of study was based largely on lectures and disputations. each fellow had about five students to tutor. in many cases, he took charge of the finances of his students, paying his bills to tradesmen and the college. his reimbursement by the students' fathers put them into friendly contact with the family. the students slept in trundle beds around his bed and had an adjacent room for study. aristotle, whose authority was paramount, remained the lynch pin of university studies, especially for logic and dialectic. the study of rhetoric was based on quintilian, the latin writer, and the greek treatise of hermogenes of tarsus. also studied was cicero's orations as models of style. examination for degrees was by disputation over a thesis of the student. the b.a. degree was given after four years of study, and the m.a. after three more. there were advanced degrees in civil law, which required seven more years of study, medicine, seven years, divinity, more than seven years, and music. many of the men who continued for advanced degrees became fellows and took part in the teaching. most fellowships were restricted to clerics. oxford and cambridge universities operated under a tutorial system. access to grammar schools and universities was closed to girls of whatever class. oxford university now had the bodleian library. in the universities, there were three types of students: poor scholars, who received scholarships and also performed various kinds of service such as kitchen work and did errands for fellows such as carrying water and waiting on tables; commoners, who paid low fees and were often the sons of economical gentlemen or businessmen; and the fellow commoners, a privileged and well-to-do minority, usually sons of noblemen or great country gentlemen. the fellow commoners paid high fees, had large rooms, sometimes had a personal tutor or servant, and had the right to eat with the fellows at high table. here, gentlemen made friends with their social equals from all over the country. students wore new- fashioned gowns of many colors and colored stockings. they put on stage plays in latin and english. the students played at running, jumping, and pitching the bar, and at the forbidden swimming and football. they were not to have irreligious books or dogs. cards and dice could be played only at christmas time. students still drank, swore, and rioted, but they were disallowed from going into town without special permission. those below a b.a. had to be accompanied by a tutor or an m.a. they were forbidden from taverns, boxing matches, dances, cock fights, and loitering in the street or market. sometimes a disputation between two colleges turned into a street brawl. punishment was by flogging. each university had a chancellor, usually a great nobleman or statesman, who represented the university in dealings with the government and initiated policies. the vice-chancellor was appointed for a year from the group of heads of college. he looked out for the government of halls, enforced the rules of the university, kept its courts, licensed wine shops, and shared control of the town with the mayor. tutors were common. they resided at the boy's house or took boys to board with them at their houses in england or on the continent. the tutor sometimes accompanied his student to grammar school or university. puritans frequently sent their sons to board in the house of some frenchman or swiss protestant to learn the calvinist doctrines or on tour with a tutor. certain halls in the universities were predominately puritan. catholics were required to have their children taught in a home of a protestant, a relative if possible. the inns of court were known as "the third university". it served the profession of law, and was a training ground for the sons of nobility and the gentry and for those entering the service of the commonwealth. the inns were self-governing and ruled by custom. students were to live within the inn, two to a room, but often there were not enough rooms, so some students lived outside the quadrangles. every student was supposed to partake of commons or meals for a certain fraction of the year - from eight weeks to three months and there to argue issues in cases brought up by their seniors. in hall the students were not allowed to wear hats, though caps were permitted, nor were they to appear booted or spurred or carrying swords. for the first two years, they would read and talk much of the law, and were called clerks commoners. after two years they became mootmen or inner barristers. in five or six years they might be selected to be called to the bar as utter barristers, whose number was fixed. there was no formal examination. the utter barrister spent at least three more years performing exercises and assisting in directing the studies of the younger men. after this time, he could plead in the general courts at westminster, but usually carried on law work in the offices of other men and prepared cases for them. participating in moots (practice courts) was an important part of their education. lectures on statutes and their histories were given by readers. physicians were licensed by universities, by the local bishop, or in london, by the college of physicians and surgeons. most were university graduates, and because of the expense of the education, from well-to-do families. for the b.a., they emphasized greek. for the m.a., they studied the works of greek physicians galen and hippocrates, roman physician claudius, and perhaps some medieval authorities. after the m.a., they listened to lectures by the regius professor of medicine and saw a few dissections. three years of study gave them a m.b., and four more years beyond this the m.d. degree. a physician's examination of a patient cost s. the physician asked about his symptoms and feelings of pain, looked at his eyes, looked at his body for spots indicative of certain diseases, guessed whether he had a fever, felt his pulse, and examined his urine and stool. there were no laboratory tests. smallpox was quickly recognized. wrapping red cloth around the person and covering the windows with red cloth being promoted healing without scarring. gout was frequent. syphilis was common in london and other large centers, especially in court circles. it was ameliorated by mercury. an imbalance of the four humors: blood, phlegm, choler, bile was redressed by bloodletting, searing, draining, and/or purging. heart trouble was not easily diagnosed and cancer was not recognized as a life-threatening disease. childbirth was attended by physicians if the patient was well-to-do or the case was serious. otherwise women were attended only by midwives. they often died in childbirth, many in their twenties. a visit by a physician cost s. d. melancholia, which made one always fearful and full of dread, and mania, which made one think he could do supernatural things, were considered to be types of madness different from infirmities of the body. despite a belief held by some that anatomical investigation of the human body was a sin against the holy ghost, physicians were allowed to dissect corpses. so there were anatomy textbooks and anatomy was related to surgery. barber-surgeons extracted teeth and performed surgery. the white and red striped barber pole initially indicated a place of surgery; the red represented blood and the white bandages. the theory of nutrition was still based on the four humors and deficiency diseases were not understood as such. physician william harvey, son of a yeoman, discovered the circulation of the blood from heart to lungs to heart to body about . he had studied anatomy at padua on the continent and received an m.d. there and later at cambridge. then he accepted a position at the hospital of st. bartholomew to treat the poor who came there at least once a week for a year. he agreed to give the poor full benefit of his knowledge, to prescribe only such medicines as should do the poor good without regard to the pecuniary interest of the apothecary accompanying him, to take no reward from patients, and to render account for any negligence on his part. he also dissected animals. one day he noted when stroking downward on the back of one hand with the finger of the other, that a vein seemed to disappear, but that it reappeared when he released his finger. he surmised that there was a valve preventing the blood's immediate return to the vein. then he ascertained that the heart was a pump that caused pulses, which had been thought to be caused by throbbing of the veins. he tied the arteries and found that the arterial blood flowed away from the heart. he tied the veins and found that venal blood flowed into the heart. he found that the blood flowed from the lungs to the left side of the heart, and from thence was pumped out to the body. blood also flowed from the body to the right side of the heart, from which it was pumped to the lungs. the two contractions closely followed one another, rather than occurring at the same time. the valves in the veins prevented backflow. it was now clear why all the blood could be drained away by a single opening in a vein. it was also clear why a tight ligature, which blocked the arteries, made a limb bloodless and pale and why a looser ligature, which pressed only on the veins, made a limb swell turgid with blood. multiplying an estimate of the amount of blood per beat with the number of beats, he concluded that the amount of blood did not change as it circulated. he concluded that the only purpose of the heart was to circulate the blood. this diminished the religious concept that the heart was the seat of the soul and that blood had a spiritual significance and was sacred. the physicians turned surgery over to the surgeons, who received a charter in by which barbers were excluded from all surgical work except bloodletting and the drawing of teeth. surgeons dealt with skin disease, ulcers, hernia, bladder stones, and broken bones, which they had some skill in setting. they performed amputations, which were without antiseptics or anesthesia. internal operations usually resulted in death. caesarian section was attempted, but did not save the life of the mother. apprenticeship was the route to becoming a surgeon. a college of surgeons was founded. students learned anatomy, for which they received the corpses of four executed felons a year. the apothecaries and grocers received a charter in , but in , the apothecaries were given the sole right to purchase and sell potions, and to search the shops of grocers and stop the sale by them of any potions. in london, the apothecaries were looked over by the college of physicians to see that they were not selling evil potions or poisons. in was the first pharmacy book. there were three hospitals in london, two for the poor, and bedlam [bethlehem] hospital for the insane. others were treated at home or in the physician's home. theaters were shut down in times of plague to prevent spread of disease there. towndwellers who could afford it left to live in the country. shakespeare wrote most of his plays in this period. most popular reading was still bibles, prayer books, psalm books, and devotional works. also popular were almanacs, which started with a single sheet of paper. an almanac usually had a calendar; information on fairs, roads, and posts; farming hints; popularized scientific knowledge; historical information; sensational news; astrological predictions; and later, social, political, and religious comment. many households had an almanac. books tried to reconcile religion and science as well as religion and passion or sensuality. walter ralegh's "history of the world", written while he was in prison, was popular. ben johnson wrote poetry and satiric comedies. gentlemen read books of manners such as james cleland's "institution of a young noble man" ( ). in , the first regular weekly newspaper was started. although there was a large advance in the quality of boys' education and in literacy, the great majority of the people were unable to read fluently. since writing was taught after one could read fluently, literacy was indicated by the ability to sign one's name. almost all gentlemen and professional men were literate. about half the yeomen and tradesmen and craftsmen were. only about % of husbandmen, laborers, servants, and women were literate. the elizabethan love of madrigal playing gradually gave way to a taste for instrumental music, including organs and flutes. the violin was introduced and popular with all classes. ballads were sung, such as "barbary allen", about a young man who died for love of her, after which she died of sorrow. when they were buried next to each other, a rose from his grave grew around a briar from her grave. the ballad "geordie" relates a story of a man hanged for stealing and selling sixteen of the king's royal deer. the ballad "matty groves" is about a great lord's fair young bride seducing a lad, who was then killed by the lord. in the ballad "henry martin", the youngest man of three brothers is chosen by lot to turn pirate to support his brothers. when his pirate ship tries to take a merchant ship, there is sea fight in which the merchant ship sinks and her men drown. the ballad "the trees they do grow high" tells of an arranged marriage between a year old woman and the year old son of a great lord. she tied blue ribbons on his head when he went to college to let the maidens know that he was married. but he died at age , after having sired a son. may day was a holiday with dancing around a maypole and people dressed up as characters such as queen of the may, robin hood, little john, friar tuck, maid marion, the fool, and the piper. new year's day was changed to january st. golf was played in scotland, and james introduced it into england. james i was the last monarch to engage in falconry. francis bacon wrote the "advancement of learning" and "novum organum" (new learning) in which he encouraged the use of the inductive method to find out scientific truths and also truths in general, that is reasoning from a sample to the whole. according to him, the only way to arrive at the truth was to observe and determine the correlations of facts. he advocated a process of elimination of hypothesized ideas. first, experiments were made, then general conclusions were drawn from them, and then these generalizations were tested in further experiments. his "new learning" showed the way out of the scholastic method and reverence for dogma into the experimental method. he wrote "natural and experimental history". he studied the effect of cold in preventing animal putrefaction. by this time, what was known about mathematics included fractional exponents, trigonometry in terms of arcs of angles, long division, square root symbol, decimal fractions, methods for solving cubic equations, trigonometry in terms of ratios of sides of a right triangle, equal sign, plus and minus signs, and a consistent theory of imaginary numbers. john napier, a large calvinist landholder in scotland who had built his own castle, did mathematics in his older years. he explored imaginary numbers, which involve square roots of negative numbers. by , he had started and developed the theory of logarithms: the relationships among positive and negative exponents of numbers. this simplified calculations because the multiplication and division of numbers with a common base could be done by addition and subtraction of their exponents. his table of logarithms, which took him twenty years to compile, was used in trigonometry, navigation, and astronomy. it reduced the enormous labor involved in trigonometric calculations. in , willliam oughtred invented the slide rule for calculations. galileo galilei was a professor of mathematics at the university of padua in italy and was later a protege of the powerful medici family. he pioneered the scientific method of theory building by observation of phenomena instead of resort to sources such as aristotle. he conducted experiments, e.g. throwing objects off the tower of pisa in to show that all, whether light or heavy, fall at the same rate. this disproved the widely held belief that heavier objects fall faster than light objects. he reasoned by induction from experiments that the force of gravity has the same effect on all objects regardless of their size or weight. his law stated that the speed of their descent increases uniformly with the time of the fall, i.e. speed [velocity] = gravity's acceleration multiplied by time. this was a pioneering mathematization of a physical phenomenon. from his observation that an object sliding along a plane travels increasingly farther and slows down at a decreasing rate as the surfaces become smoother and more lubricated, he opined that the natural state of a body in motion is to stay in motion, and that it is slowed down by a resistant force, which he called "friction". he conceived of the air giving a frictional force to an object moving through the air. from his experiments showing that a rolling ball rolls up a plane farther the lesser the slope of the plane, he intuited that if the plane were horizontal, the ball would never stop rolling except for friction. he opined that bodies that are at rest stay at rest and bodies that are in motion stay in uniform motion ("inertia"), unless and until acted upon by some force. this was a radical departure from aristotle's theory that any horizontal motion requires a prime mover. galileo drew a graph of distance versus time for the rolling ball, which indicated that the distance traveled was proportional to the square of the time elapsed. he put his ideas of vertical and horizontal motion together to explain the movement of projectiles, which travel horizontally, but also fall downward vertically. he realized that the movement of a projectile involved a horizontal impetus of projection and a vertical force of gravity, each being independent of the other, but acting simultaneously, instead of sequentially. he demonstrated that a projectile follows the path of a parabola, instead of a straight line, and that it descends a vertical distance which is proportional to -the square of the time taken to fall. that is, a thrown object will strike the ground in the same amount of time as an object simply dropped from the same height. this suggested that gravity was a constant force. galilieo described mathematically the motion of a lever such as a seesaw in which the weight on one side multiplied by its distance from the fulcrum is equal to the weight on the other side multiplied by its distance from the fulcrum. galileo determined that a pendulum, such as a hanging lamp, swings back and forth in equal intervals of time. he measured this time with water running through a tube; the weight of the water was proportional to the time elapsed. also, pendulums with equal cord length swing at the same rate, regardless of the substance, weight, or shape of the material at the end. so a pendulum could be a mechanical clock. - galileo knew that ice floated on water because ice is less dense and therefore lighter than water. it had formerly been thought that ice was heavier than water, but floated on water because of its shape, especially broad, flat-bottomed pieces of ice. the telescope was invented in . the next year, galileo built a greatly improved telescope to observe bodies in the skies. he observed that the spots on the moon had shifting illumination and that the moon's perimeter had a jagged outline. from this he deduced that the surface of the moon had mountains, valleys, and craters much like the earth, and was illuminated by reflected light. he noticed that the planet jupiter had moons orbiting it in a manner similar to the orbit of the earth's moon. he observed that when the planet venus was very small it had a round shape and when it was very large, and therefore nearer the earth, it had a crescent shape. also, venus progressed through periodic phases of increasingly wide crescent shapes in a manner similar to the phases of crescent shapes of the earth's moon. he realized that these features of venus could be explained only if venus revolved around the sun, rather than around the earth. this finding added credence to the copernican theory that the earth and all planets revolve around the sun. but church doctrine that the sun revolved around the earth was supported by the biblical story of god making the sun stand still to give additional sunlight on a certain day so a certain task could be completed that day. galileo argued against a literal interpretation of the bible, so he was denounced by the church. his finding of sunspots on the sun conflicted with church doctrine that the celestial bodies such as the sun were perfect and unblemished. his observation that certain sun spots were on certain locations of the sun, but changed location over time, suggested that the sun might be rotating. he observed that when air was withdrawn by a suction pump from the top of a long glass tube whose lower open end was submerged in a pan of water, the water rose to a height of feet and no higher. this result indicated that the evacuated space above the water was a vacuum: an empty space. the notion of a vacuum, a space where there is nothing or void, was difficult for philosophers to accept. they believed that nature abhored a vacuum and would prevent it. about , galileo invented the first thermometer by heating air at the top of a tube whose open end was in a bowl of water; as the top end cooled, the air contracted and water rose part way up the tube; the column of water rose or fell with every change of temperature. galileo invented the compound refracting microscope, which used more than one lens, about . galileo's book on the arguments for and against the copernican theory was unexpectedly popular when published in . the general public was so persuaded by the arguments that the earth revolved around the sun that papal authority felt threatened. so galileo was tried and convicted of heresy and sentenced to house arrest as an example to others who might question church doctrine, even though the seventy year old galileo recanted and some of the inquisition judges who convicted him believed the copernican theory and their decision did not assert the contrary. johannes kepler was a mathematician from germany who made his living as an astrologer. he was in contact with galileo by letter, as most scientists of europe were with each other. kepler was fascinated with perfect geometric shapes, which he tried to relate to celestial phenomenon. he discerned that the orbit of mars was not perfectly circular. he knew that the apparent path of the sun with respect to the constellation of fixed stars differed in speed at different times of the year. he opined that this showed that the speed of the earth revolving around the sun varied according to the time of year. then he measured the angles between the earth and the sun and the earth and mars as they changed through the martian year. he noted when the earth, mars, and the sun were on the same straight line. then he deduced the earth's true orbit, and from this the true orbits of the other planets. then by trial and error, he attempted to match this empirical data with regular mathematically defined shapes, until he discovered in that these paths were elliptical. also, the planets each move faster when they are nearer the sun and more slowly when they are farther from the sun so that in equal time intervals, a line from the planet to the sun will sweep out equal areas. this observation led him to opine that there is a force between the sun and each planet, and that this force is the same as that which keeps the moon in its orbit around the earth. thirdly, in , he found that the square of the time for each planet's orbit about the sun is proportional to the cube of that planet's mean distance from the sun, so that the farther planets orbit at a slower speed. he connected the earth's tides with the gravitational pull of the moon. kepler also confirmed that the paths of comets were governed by a law and were farther from the earth than the moon. this contradicted the church's explanation that what lies within the moon's orbit pertains to the earth and is essentially transitory and evil, while what lies beyond belongs to the heavens and is permanent and pure. renee descartes, a french mathematician, scientist, and philosopher, had a revelation that the structure of the universe was mathematical and that nature obeyed mathematical rules. in , he invented analytic [cartesian] geometry, in which lines and geometric shapes can be described by algebraic equations and vice-versa. all conic sections: circles, ellipses, parabolas, and hyperbolas, could be represented by equations with two unknowns, or variables, on a coordinate system in which each point is represented by a pair of numbers representing distances from the two axis lines. an algebraic equation with two unknowns, could be represented as a shape thereon. an algebraic equation with one unknown represented a straight line thereon. the points of intersection geometrically were equivalent to the common solution of the associated algebraic equations. he started the convention of representing unknown quantities by x, y, and z and known quantities by a, b, and c. so, for instance, a circle with center at point , and a radius of was represented by the equation: (x- ) squared + (y- ) squared = . he pioneered the standard exponential notation for cubes and higher powers of numbers. analytic geometry aided in making good lenses for eyeglasses. the glass was first manufactured with attention to quality. then, after it cooled and solidified, the clearest pieces were picked and their surfaces ground into the proper curvature. descartes formulated the law of refraction of light, which deduces the angle of refraction [deflection] of light through a medium from the lights' angle of incidence and the speed of light in each media in which the light passes. this explained why a rainbow is circular. in , he described the universe in terms of matter and motion and suggested that there were universal laws and an evolutionary explanation for such. he opined that all effects in nature could be explained by spatial extension and motion laws that ) each part of matter retains the shape, size, motion, or rest unless collision with another part occurs; ) one part of matter can only gain as much motion through collision as is lost by the part colliding with it; and ) motion tends to be in a straight line. descartes feared persecution by the church because his ideas did not correlate with the biblical notion of god's creation of the universe in the order of light, then sky and oceans and dry land, then plants, then seasons and the sun and moon and stars, then fish and birds, then all animals, and finally man. descartes believed in a good and perfect god, and thought of the world as divided into matter and spirit. the human mind was spirit and could exist outside the human body. without the mind, human body was a machine. the human mind had knowledge without sense experience, e.g. the truths of mathematics and physics. ideas and imagination were innate. his observation that sensory appearances are often misleading, such as in dreams or hallucinations, led him to the conclusion that he could only conclude that: "i think, therefore i am." he rejected the doctrine that things had a proper behavior according to their natures, e.g. the nature of acorns is to develop into oak trees. as an example of erroneous forming of conceptions of substance with our senses alone, he pointed out that honeycomb has a certain taste, scent, and texture, but if exposed to fire, it loses all these forms and assumes others. he considered to be erroneous the belief that there are no bodies around us except those perceivable by our senses. he was a strong proponent of the deductive method of finding truths, e.g. arguing logically from a very few self- evident principles, known by intuition, to determine the nature of the universe. christian huygens, a dutch physicist, used the melting and the boiling point of water as fixed points in a scale of measurements, which first gave definiteness to thermometric tests. there was much mining of coal, tin, copper, lead, and iron in the s. coal was transported from the coal pits down to the rivers to be loaded onto ships on coal wagons riding on wooden rails. the full coal cars could then be sent down by gravity and the empty wagons pulled up by horses. sheet metal, e.g. lead, was used for roofing. coal was much used for heating houses, and for laundry, cooking, and industrial use, such as extraction of salt, soap boilers, and manufacture of glass, bricks and tiles for buildings, anchors for ships, and tobacco pipes. it was used in the trades: bakers, confectioners, brewers, dyers, sugar refiners, coopers, starch makers, copper workers, alum makers, and iron workers. in the haberdashers, who sold imported felt for hats, got a charter of incorporation. a tapestry factory was established in . flax-working machines came into existence. the royal postal system carried private as well as royal letters, to increase income to the crown. postmasters got regular pay for handling without charge the mail of letters that came from or went to the letter office in london. the postmaster kept horses which he let, with horn and guide, to persons riding "in post" at d. per mile. the post was to travel mph in summer and mph in winter and sound his horn four times in every mile or whenever he met travelers. wool and animals for butchering were sold in london with the sellers' agent in london taking the proceeds and paying out to their order, the origin of check writing. scriveners drew up legal documents, arranged mortgages, handled property transactions, and put borrowers in touch with lenders. they and the goldsmiths and merchants developed promissory notes, checks, and private paper money. the influx of silver from the new world was a major factor in the second great inflation in england and in the devaluation of money to about one third of what it had been. also contributing to the inflation was an outracing of demand over supply, and a debasement of the coinage. this inflation benefited tenants to the detriment of their lords because their rents could not be adjusted upward. there was an increase in bankruptcies. houses of correction were built. as attorney general, edward coke was impassioned and melodramatic. he once described the parts of the penalty of treason as follows: being drawn to the place of execution reflected the person's not being worthy any more to tread upon the face of the earth; being drawn backward at a horse tail was due to his retrograde nature; being drawn head downward on the ground indicated that he was unfit to breathe the common air; being hanged by the neck between heaven and earth indicated that he was unworthy of either; being cut down alive and his privy parts cut off and burnt before his face indicated he was unworthily begotten and unfit to leave any generation after him; having his bowels and inners taken out and burnt indicated he had inwardly conceived and harbored such horrible treason; his head cut off, which had imagined the treason, and his body to be quartered and the quarters set up to the view and detestation of men a prey for the fowls of the air. coke was subsequently elevated to the position of chief of common pleas and then to chief of the king's bench. but there coke propounded a doctrine of the supremacy of the law over the king as well as over parliament. for instance, coke would not agree to stay any case in which the king had a concern in power or profit, to consult with him. but the other eleven justices did agree. since james i believed in the divine right of kings, he therefore dismissed coke from his position as chief justice of the king's bench. james even believed that he could suspend any law for reasons known only to him and issue proclamations that were not limited to the reinforcement of old laws, but made new offenses with punishment of fine and/or imprisonment. the old writ of habeas corpus [produce the body] had been just to bring to court those persons needed for proceedings, but coke in had cited the writ with a new meaning "to have the body together with the cause of detention". coke then became a member of parliament and led the commons, where he exalted the authority of parliament vis a vis the king; that is, the king could not make any changes in law, religion, or taxation without consent of parliament. james arrested coke and two other members of the commons and put its leader john pym under house arrest for their outspoken opinions against the king's intended alliance with catholic spain and intended taking of a spanish wife. because of the deadlock that developed between the king and parliament, certain matters could not be addressed by legislation and were left to be decided judicially. this made judicial review of disputes important. james vastly increased the number of peerages, selling many, for example for , pounds. since there was a tacit understanding that members of parliament would not accept remuneration, this restricted eligibility for membership to the rich. the house of commons was composed mostly of attorneys, merchants from the large towns, and country gentlemen. the gentry members had pounds [ , s] annual income from land and the burgess members had pounds [ , s.]. there were two knights from every county, elected by men holding at least forty-shilling freeholds; four representatives from london, and one or two from every other borough, generally elected by the top business families'; and a representative from each of the two universities. for speaker, they always chose someone suggested to them by the crown. he decided who would talk and could hasten or delay bills, usually for the benefit of the crown. the clerk, a lifetime appointment of the crown, wrote out the bills and their amendments and kept track of proceedings. many in the commons were puritan in sympathy. in , the house of commons developed a committee system to avoid being presided over by the royally designated speaker. a committee could consist of all the members of the house of commons with an elected chairman. an increasing number of issues were discussed in committee before coming to the commons and the commons came to ratify readily what had been done in committee. by , there had developed in the house of commons an opposition to feudal tenures, purveyance, wardships, and impositions (special import and export duties on aliens set by the king without the consent of parliament that were supposed to be for the purpose of regulating trade instead of for revenue). there was also a call for free speech and an end to the king's habit at the end of parliament of imprisoning for a time those who had been too outspoken. the commons also asserted itself into foreign affairs by expressing an opinion against a treaty proposed by the king on which war could ensue. the treaty was abandoned. in london, organized groups such as the apothecaries, the skinners, and the grocers, were circulating printed statements of their cases to members of committees of the house of commons rather than just seeking out a friendly privy council member. in , the protests made to committeemen about monopolies sold by james frightened him into canceling many of them. he had made many grants against competition in violation of law. the right of the commons to expel a member was asserted by the expulsion of a monopolist. by , the speeches of prominent members and the course of proceedings were copied by stationers and sold in a weekly news report. the king's privy council dealt constantly with foreign affairs, and also with the great companies, and problems arising such as gold leaving the country, the dutch ships increased efficiency in transporting goods, the declining market for english cloth, strikes in the mining industry, decaying harbor works, the quality of food and drink, the wrongs done to the poor, and above all, the general peace and order. they formed commissions to study situations and sent orders to justices of the peace on methods to address certain problems and to sheriffs to carry out certain acts. about , a group within the privy council began to concentrate on foreign affairs, especially "cabinet counsels", that is, with secret matters. james sold high offices of state to supplement his income. his income from customs had increased so much that it was now three times that from crown lands. the sheriff looked after crown lands and revenues in his county. he gathered the rents, the annuities, the stray animals, the deodands, the fees due to the king, the goods of felons and traitors. he was still a means of communication between the privy council and the county. he announced new statutes of parliament and proclamations by the king at the county courts and in the markets. he used posse comitatus to disperse riots. he was the functionary of the assize court, impaneling its juries, bringing accused men before it, and carrying out its penalties. he carried out elections of members of the house of commons. there were two high constables for each hundred. they were chosen by the justices of the peace at quarter sessions, and were usually small gentry or well-to-do yeomen. they were the intermediaries between the justices and the petty constables. the petty constable was the executive official of the village. he was usually elected by the suitors to the leet court of the manor for a year. he might be a farmer, an artisan, a carpenter, a shoemaker, or many times a tradesman, a butcher, or baker. he often visited the alehouse to learn of any trouble in the making. he would intervene in quarrels and riots and tell the participants to desist in the king's name. if they didn't, he could call on all bystanders to help him "force a quiet". he had to lead the rioters and causers of injuries to others, hold them there until he could bring him before the nearest justice. he would inform the justice of plots to trespass or forcibly enter land to take possession. he saw to it that no new cottages were built in the villages without due authority. he supervised markets and inns. he reported lapses of care for apprentices by their masters to the justice. at harvest time, he called upon all able bodied persons to assist and punished those who didn't respond by putting them in the stocks or fining them forty shillings. he arrested and whipped vagrants and sturdy rogues and sent them back to their place of birth through constables on the way. if a horse was stolen, he raised the hue and cry to all neighboring constables. he made inquiry into the paternity of the coming child of an unmarried pregnant girl to make him take responsibility for the child and pay her d. a week lest it fall into the responsibility of the village. in a town, he might have watchmen to help him see that the streets were peaceful at night. the constable assisted the justice of the peace, the high constable, and the sheriff. he pressed men into military service. he collected taxes for the sheriff and collected the money for purveyance, the money for the poor, maimed soldiers, and various kinds of prisoners, which the parish had to pay. he was often the spokesman for the village in village concerns, such as too many alehouses, brought to the attention of justices at quarter sessions. the constable and churchwardens together collected money for the parish, looked after the needy, and kept in close touch with the overseers of the poor, who cared for the sick and old, found work for the idle, took charge of bastards, apprenticed orphan children, and provided supplies for the workhouse. in the east india company was given a monopoly by the crown that was indefinitely long as long as it was profitable to the realm in the king's opinion. interlopers were to forfeit their ships and goods, one-half to the company and one-half to the crown. monopoly status made the company competitive with the dutch and portuguese monopoly companies. the crown received a gift or a loan from the company in return. at first, the company raised capital for each separate voyage. but voyages tried to undercut each other and rival factions squabbled over cargoes. so the company then raised a "terminable joint-stock" for a period of years. the first of these was issued in - and financed a fleet every year for four years. subscriptions were called in by yearly installments and dividends paid out yearly. the voyage of brought shareholders a profit equivalent to about % a year. by , the company operated thirty to forty "tall ships", many built in its own dockyards. these dockyards were so technologically advanced that they were daily viewed by visitors and ambassadors. here, besides wet and dry docks, there were timber yards, a foundry and cordage works for supplying the ships' hardware and a bakery and saltings for their provisioning. more than craftsmen were directly employed in the yard. overall the company was one of london' largest employers. in , the muscovy company, hired henry hudson to find a northwest passage through north america to the pacific ocean. in , the first charter of the virginia company was issued for trading purposes. it gave the settlers "all liberties, franchises, and immunities" they had in england. to oversee this colony, the crown appointed a council. virginia established the episcopal church by law. virginia became a joint-stock company in . but exports were few (timber, soap ashes, pitch, tar, and dyes) for several years, and then tobacco emerged as a source of profit. king james imposed a heavy duties on imported tobacco because it corrupted man's breath with a stinking smoke. life was difficult for puritan separatists, who wanted to separate from the established church. they were imprisoned and their houses were watched day and night for illegal meetings. in , after trying holland and when there was a depression in england, a few puritan separatists, along with other pilgrims, left for virginia in the mayflower, but landed in new england and founded plymouth colony. they were led by william bradford and william brewster, their spiritual leader. they planted fields and made friends with the indians. in , they secured a patent to the merchants and planters together for a voluntary joint-stock company in new england. later, it became the self-governing massachusetts bay colony. the canons of the church of provided for excommunication for anyone who propounded that the king did not have the same authority in ecclesiastical matters as the godly kings among the jews and christian emperors in the primitive church, that the church of england was not a true and apostolic church, that worship according the book of common prayer and administration of sacraments was corrupt or superstitious, or that other methods of the church were wicked, unchristian, or superstitious. church sanctuary was abolished for those accused of criminal offenses because it had been abused by thieves paying their rent by thieving at night. it remained available to those accused of civil offenses. about % of the population was catholic, although it was against the law to practice this religion. indeed it long been the practice to sequester their lands, punish them for going to mass, fine them for not attending the established church, banish their priests, and imprison those who aided priests. there was a catholic plot in to blow up parliament and the king with gunpowder and to restore catholicism as the state religion with a catholic king. it was discovered and the conspirators were executed. then there was a crackdown on catholics, with houses being searched for hiding places for priests. also, legislation was passed barring catholics from many offices. the law churchwardens of every parish shall oversee the poor in their parish. they shall, with consent of the justices of the peace, set to work children whose parents cannot maintain them and also set to work married or unmarried persons who have no trade and no means to maintain themselves. churchwardens shall tax every inhabitant, including parson and vicar and every occupier of land and houses, as they shall think fit. there will be a convenient stock of flax, hemp, wool, thread, iron and other necessary ware and stuff to set the poor on work. there will be competent sums of money for the relief of the lame, impotent, old, blind, and others not able to work, and also for the putting out of children to be apprentices. child apprentices may be bound until years of age or until time of marriage. they shall account to the justices of the peace for all money received and paid. the penalty for absence or neglect is s. if any parish cannot raise sufficient funds, the justices of the peace may tax other nearby parishes to pay, and then the hundred, and then the county. grandparents, parents, and children of every poor, old, blind, lame, or impotent person not able to work, being of sufficient ability, shall at their own charge, relieve and maintain every such poor person in that manner and according to that rate as justices of the peace of that county determine, or else forfeit s. per month. two justices of the peace may commit to gaol or house of correction persons refusing to work and disobedient churchwardens and overseers. the overseers may, with the consent of the lord of the manor, build houses on common or waste land for the poor at the expense of the parish, in which they may place more than one family in each house. every parish shall pay weekly - d. toward the relief of sick, hurt, and maimed soldiers and mariners. counties with more than fifty parishes need pay only - d. the county treasurer shall keep registers and accounts. soldiers begging shall lose their pension and shall be adjudged common rogues or vagabonds subject to imprisonment and punishment. a seminal patent-protection law was passed in . it stated that all monopolies to any person or persons, bodies politic or corporate for the sole buying, selling, making, working, or using of anything within the realm are void. this does not include london or towns. parties aggrieved by such may recover treble damages in the superior courts, with double costs. excepted are existing patents, for years or less, for new inventions and for future patents for years or less. excepted also are patents for printing or making saltpeter, gunpowder, shot or ordinance, etc.; patents concerning allum mines or newcastle coal or glass making or export of calves' skins or making smalts [deep-blue pigment or glass] or melting iron ore; grants of office; and licenses for taverns. persons stealing crops from lands or fruit from trees shall be whipped. every person shall receive the holy communion in church at least once a year or else forfeit pounds for the first year and pounds for the second year, and threescore pounds for every year after until he takes the said sacrament. every person convicted of drunkenness shall be penalized s. or else placed in the stocks for six hours, because the loathsome and odious sin of drunkenness has grown into common use lately and it is the root of many other sins, such as bloodshed, stabbings, murder, swearing, fornication, and adultery, and is detrimental to the arts and manual trades and diverse workmen, who become impoverished. offenders convicted a second time shall be bound with two sureties to the sum of s. lewd women, having bastards, chargeable to the parish, shall be committed to the house of correction to be punished and set to work for one year. mothers concealing the death of a bastard baby shall suffer as for murder, unless one witness proves the child was born dead. persons deserting their families shall be deemed incorrigible rogues and punished as such. persons such as sorters who purloin or embezzle wool or yarn delivered to them by clothiers and the receivers thereof, knowing the same, shall recompense the party grieved or else be whipped and set in the stocks. because benefit of clergy is not allowed to women convicted of felony by reason whereof many women suffer death for small causes, any woman convicted for the felonious taking of any money, goods or chattels greater than d. and less than s. other than burglary or robbery on the highway or from the person of any man or woman without their knowledge, shall be branded and marked in the hand upon the brawne of the left thumb with a "t" and imprisonment, whipping, stocking, or sending to the house of correction for a year or less. actors profaning god, jesus, or the holy ghost on stage are to be penalized s. in it was decided that it was not necessary to prove that witchcraft caused the death of a person for there to be punishment for the witchcraftery. all that was necessary now was the practice of witchcraft. the punishment was death by hanging. also, consulting or feeding an evil spirit was felony. sheriffs summoning defendants without a writ shall pay s. and damages to the defendant, and s. to the king. since administrators of goods of people dying intestate who fail to pay the creditors of the deceased often can't pay the debts from their own money, the people (who are not creditors) receiving the goods shall pay the creditors. no merchant may dress black rabbit skins, nor export them, unless dressed by skinners and bought from them because the skinners have been thus deprived of their livelihoods to their impoverishment throughout the realm. beer may be exported when malt is at s. per quarter because exporting beer instead of barley and malt will ( ) increase the export tax to the king, ( ) increase income for coopers and brewers, and ( ) provide more jobs in transporting beer, which is more voluminous, to the great comfort of the port towns. fish which are spawning and growing in harbors may not be taken by any net or weirs because this practice has hurt fishermen and the realm. no one shall sell beer or ale to an unlicensed alehousekeeper because abuses there have become intolerable. no person at least years of age may be naturalized or restored in blood after being attainted unless he takes the sacrament and the oath of supremacy [of the king over the church of england], and oath of allegiance [to the king]. money given by will for the apprenticeship of poor children shall be managed by incorporated towns and unincorporated parishes. masters receiving such apprentices shall become bound with sufficient sureties. houses of correction shall be built in every county. london may make a trench to bring water to the north part of the city and shall compensate the owners of lands by agreement with them of an amount or an amount determined by commissioners. all hospitals and abiding places for the poor, lame, maimed, and impotent persons or for houses of correction founded according to the statute of elizabeth shall be incorporated and have perpetual succession. only lands and hereditaments paying rents to the crown within the last sixty years shall be claimed by the crown; the title of all persons and corporation who have enjoyed uninterruptedly against the crown for the last sixty years are confirmed against the crown. no one may take more than % interest on loans because % has caused many, including gentry, merchant, farmer, and tradesman, to sell their land and forsake their trade to pay their debts. as attorney general, edward coke introduced the crime of "seditious libel" in a case before the star chamber in . these written slanders or libels were viewed as incitements to disorder and private vengeance. because the tendency to cause quarrels was the essence of the crime, the truth of the libel was not a defense, but might be an aggravation of criminality. edward coke, former chief justice of both the court of common pleas and court of the queen's bench, wrote his reports on court cases of all kinds through forty years and his institutes on the law, in which he explained and systematized the common law and which was suitable for students. this included a commentary and update of littleton, published in ; old and current statutes; a description of the criminal law; and lastly an explanation of the court system, the last two published in . coke declared that "a man's house is his castle". coke waged a long battle with his wife over her extensive lands and personal property and the selection of a husband for their daughter. in his institutes, he described the doctrine of coverture as "with respect to such part of the wife's personality as is not in her possession, as money owing or bequeathed to her, or accrued to her in case of intestacy, or contingent interests, these are a qualified gift by law to the husband, on condition that he reduce them into possession during the coverture, for if he happen to die, in the lifetime of his wife, without reducing such property into possession, she and not his representative will be entitled to it. his disposing of it to another is the same as reducing it into his own possession." he further states that "the interest of the husband in, and his authority over, the personal estate of the wife, is, however, considerably modified by equity, in some particular circumstances. a settlement made upon the wife in contemplation of marriage, and in consideration of her fortune, will entitle the representatives of the husband, though he die before his wife, to the whole of her goods and chattels, whether reduced into possession or not during the coverture. ... a settlement made after marriage will entitle the representative of the husband to such an estate in preference to the wife. ... a court of equity will not interfere with the husband's right to receive the income during the coverture, though the wife resist the application." no person convicted of catholicism may practice the common law as a counsellor, clerk, attorney, or solicitor, nor may practice civil law as advocate, or proctor, nor shall be justice, minister, clerk, or steward in any court, nor practice medicine, nor perform as apothecary, nor be officer in a town, in the army, or navy, or forfeit pounds as punishment. nor may they be administrators of estates, or have custody of any child as guardian. nor may they possess any armor, gunpowder, or arms. nor may anyone print or import popish books rosaries, or else forfeit s papists running a school must forfeit s. a day for such. anyone conveying a child beyond the seas to be educated in popery may not sue in the courts, may not hold any office, and shall forfeit pounds and all lands. but the child returning may have his family lands restored to him if he receives the sacrament of the lord's supper in the established church after reaching years of age. judicial procedure james i asserted an authority to determine the jurisdiction between the various courts. the court of the king's bench had the major part of the civil business of the courts. the star chamber court still was primarily directed against force and fraud and defended the common people from over-mighty lords and over-pliable justices of the peace, for instance by deterring enclosure. it also enforced monopolies. however, there was a growing tendency for king james, who sat on it, to abuse its power with high fines. for instance, a lord accused with foul language by a huntsman of following hounds of a chase too closely threatened to use his horse whip on the huntsman's master when the huntsman threatened to complain to his master. the lord was fined , pounds. james' council used torture to obtain information from accused felons about possible conspiracies against him. the ordinary administrative court of first instance is formed by the single justices of the peace, who issue orders regarding public safety, order, public morals, health, the poor, highways, water, fields, forests, fisheries, trade, building, and fire, and particularly begging and vagrancy as well as regulations of wages, servants, apprentices, and day laborers. for more important resolutions, the special sessions of the justices of the peace of a hundred for a court of intermediate instance and appointed overseers of the poor. all justices of the peace were present at the quarter sessions, which were held at least four times a year, and were primarily a court of appeal from penal sentences, but also make the county rate, appoint county treasurers and county prison and house of correction governors, regulate prices and wages, settle fees of county officials, grant licenses for powder mills, and register dissenting chapels. it heard appeals expressly allowed by statute. the central courts also heard appeals by writ of certiorari as to whether an administrative act was in accordance with existing law, whether the court is competent, and whether the administrative law has been rightly interpreted. this writ of certiorari ceased in the s. justices of the peace who have the power to give restitution of possession to tenants of any freehold estate of their lands or tenements which have been forcibly entered and withheld, shall have like power for tenants for term of years, tenants by copy of court roll, guardians by knight service, and tenants by elegit statute merchant and staple of lands or tenements [tenant-plaintiffs holding property to receive income therefrom for satisfaction of a debt of defendants]. the justices of the peace were chosen by the crown, usually by the chancellor. the qualifications were residence in the county, suitability of moral character, religious uniformity, and the possession of lands or tenements with twenty pounds a year. they were almost exclusively country gentlemen, except in the towns. in the corporate towns, the mayor, bailiff, recorder, and senior aldermen were ex officio [by virtue of the office] justices of the peace. their main duty was to keep the peace. if a justice heard of a riot in the making, he could compel individuals at the place to give bonds of "good-a-bearing" and cause a proclamation to be made in the king's name for them to disperse. two justices or more had the authority to arrest the rioters and send a record of it to the assizes and to the privy council. if the riot had taken place before their arrival, they could make an inquiry by a jury and certify the results to the king and his council. the justices had men brought before them on many kinds of charges, on their own summons, or on initiative of the petty constable. they tried to draw these men into confession by questioning. after indictment, a person had the choice of a petty jury trial or paying a fine. the justices of the peace could insist upon presentment juries or surveys of offenses by local officers, but, without the institution of policemen, not many crimes were prosecuted because victims were unwilling or could not afford to initiate judicial action. their unwillingness was partly due to the severity of penalties, e.g. death for the theft of over s. and whippings and fines for misdemeanors. further, the offender was frequently a neighbor with whom one would have to live. mediation by the local constable often took place. when there an outbreak of lawlessness in an area, a commission might be set up especially for that area to enforce the law. assault cases were common in courts of assize and courts of quarter sessions. the quarter sessions were those of a number of justices of the peace held for a couple of days four times a year for the more important cases in the jurisdiction of the justices of the peace. assault was violence or threat of imminent violence. fines were graduated according to the means of the offender, who was usually bound over to keep the peace. most involved offenders and victims who were neighbors and included people of substantial standing in the village. also, a sizable minority were directed against local officers such as constables, bailiffs, or tax- collectors. three-fourths of all assize indictments and many quarter-sessions indictments were for various types of theft, including petty larceny, grand larceny, housebreaking, burglary, sheep stealing, and robbery. these offenses were mostly opportunistic rather than planned, except for london's underworld of professional thieves and the cutpurses of country markets and highway robbers on lonely roads. there were substantial peaks in theft in periods of harvest failure and industrial depression, especially by vagrants. but most of the poor never stole. the justices of the peace usually deferred to the learned justices of assize for cases of felony, murder, rape, highway robbery, and witchcraft. most homicides were the result of an impassioned argument leading to blows inflicted by nearby commonplace items picked up and used as weapons. only % of homicides were within the family. men were still declared outlaw if they failed to come to court after repeated summons. the lord keeper regularly advised the assize justices, before each circuit departure, to relieve the poor, supply the markets, maintain the roads (which were frequently impassable in winter for wagons or coaches), enforce church attendance, suppress superfluous and disorderly alehouses, and put down riots, robberies, and vagrancy, and in times of dearth, to suppress speculation in foodstuffs, prevent famine, and preserve order. in fact, the justices were most attentive to offenses which affected them as rate payers for the poor. these were offenses against cottaging laws (e.g. erection of cottages which lacked the statutory four acres of land), harboring of "inmates", disputes of settlement of paupers, bastardy, vagrancy, church nonattendance, and above all, disorderly alehouses. alehousing had been a well- established means of poor employment since the s, so it was hard to enforce licensing laws. further, alehouses were the centers of social life for the common people; both women and men met their friends there. if an attorney or solicitor delays his client's suits to work his own gain or over charges his client, the client can recover his costs and treble damages and the attorney and solicitor shall be disbarred. none may be admitted to any court of the king but such as have been brought up in the same court or is otherwise well-practiced in soliciting of causes and has been found by their dealings to be skillful and honest. an attorney who allows another to use his name shall forfeit shillings and be disbarred. offenders shall pay the charge of their own conveyance to gaol or the sum shall be levied by sale of their goods so that the king's subjects will no longer be burdened thereby. plaintiffs' costs shall be paid by the defendants only where there is a judgment against the defendant in all actions in which the plaintiff is entitled to costs on judgment for him, to discourage frivolous and unjust suits. defendants may not petition to remove a case to the westminster courts after a jury is selected because such has resulted in unnecessary expense to plaintiffs and delay for defendants in which they suborn perjury by obtaining witnesses to perjure themselves. in , by the writ of quo warranto, a government office or official could be made to explain by what right he performed certain acts. the court of high commission heard mostly matrimonial cases, but also moral offenses both of clergy and laity, and simony [buying or selling ecclesiastical preferment, ecclesiastical pardons, or other things regarded as sacred or spirtual], plurality, drunkenness, and other clerical irregularities. by , chancery could order injunctions to stop activities. in slade's case of , the court of the queen's bench held that assumpsit may be brought in place of the action of debt. so assumpsit supplants debt for recovering liquidated sums and is then called "indebitatus assumpsit". the trial of sir walter ralegh in began a call by people for a right to confront and question one's accusers. before trial, privy counselors who in theory sat as impartial justices, cross-examined ralegh in prison. with a carefully selected jury present, the trial began with reading of the indictment, which ralegh had not yet seen. he was charged with treason in plotting with catholic spain to put arabella stuart on the throne. arabella was to write to spain promising peace, toleration of catholics in england, and direction by spain in her marriage choice. he pled not guilty and took no exception to any jurors, stating that he knew them all to be honest men. next, attorney general edward coke, his enemy and rival, and he engaged in a debate about who was right, with coke outright bullying him. coke then produced a signed confession by lord cobham that implicated him in the alleged conspiracy and accepting , crowns for his part. ralegh was given permission to speak. he said that cobham had retracted his confession. he ridiculed the idea that he would betray england to spain for gold after fighting against spain, including risking his life three times, and spending , pounds for the defeat of spain. he pointed to a treatise he had written to the king on the present state of spain and reasons against peace. then there was a discussion on the validity of cobham's confession. cecil gave an oration of ralegh. coke gave a speech. ralegh asked to have his accuser brought before him face to face. he cited law that two witnesses were necessary for a conviction for treason. chief justice popham replied that only one witness was necessary under common law, which applied to his case, and that the trial was properly conducted by examination of the defendant. coke added that it would be improper to call cobham because he was a party. then coke surprised ralegh with a letter from cobham stating that ralegh had asked cobham to procure him an annual pension of pounds from spain for disclosing intelligence. ralegh acknowledged that a pension was offered, but denied that he had ever intended to accept it. he admitted that it was a fault not to inform authorities of this offer. the jury deliberated for fifteen minutes and returned with a verdict of guilty. the chief justice delivered the sentence for treason: drawing, hanging, disemboweling, beheading, and quartering. the whole trial was not so much to access guilt, but to show the general public that the person was guilty. church courts were revived after a period of disuse. they could annul an unconsummated or legally invalid marriage (e.g. consanguinity, impotence, a witnessed precontract to marry) and order judicial separations in case of adultery, cruelty, or apostasy. annuled marriages made a person's children illegitimate. an action at common law for "criminal conversation" [adultery] with the plaintiff's spouse or for assault and battery could result in an order for separation. but only a private statute of parliament could grant a divorce, which allowed remarriage. it was granted in only a few cases and only to the very wealthy. church officials spied upon people's conduct to draw them into their courts and gain more money from the profits of justice. in , edward coke, chief justice of the court of common pleas, decided that the statute giving the royal college of physicians power to imprison and fine those practicing without a license was invalid and unenforceable because it gave the college half of each fine awarded, which was a conflict of interest with its role as an adjudicator. coke said that a maxim of the common law was that no man ought to be judge in his own cause. by this decision, he asserted a court supremacy over parliament with respect to the validity of statutes. he opined that the courts should not only be independent of the crown, but should act as arbiter of the constitution to decide all disputed questions. in his words, "when an act of parliament is against common right and reason, the common law will control it and adjudge such act to be void." justices still explained and in some degree interpreted legislative acts of parliament as they had since the s, but their right to do so was coming into question and was slowly lost. female scolds were still dunked into water as punishment. only barristers, who were called to the bar after being in long residence in one of the inns of court, could practice before the king's court. attorneys and solicitors prepared cases for barristers and practiced before minor courts. the king appointed the justices, with the advice of the chancellor. james i often intimidated the justices to see things his way. the oath of a justice was: "well and truly ye shall serve the king and his people. and ye shall take no fee or livery of none but the king, nor gift or reward of none that hath a do before you except it shall be meat or drink of small value, as long as the plea hangs before you. and ye shall do equal law and execution of right to all the king's subjects rich and poor, without regard to any person. ye shall counsel our sovereign lord the king in his need. and ye shall not delay any person of common right for the letters of the king or of any person or for any other cause ... so help you god." the courts of king's bench and common pleas, and the chancery all met simultaneously in westminster hall. throngs passed up and down the middle aisles between the courts, including booksellers, stationers, scriveners, and vendors of bread and hot meat. the hall was so cold that people kept on their coats and hats. the last court case concerning villeinage was in . chapter the times: - the entourage of charles i came to be called "cavaliers". they were named by their opponents for the spanish caballero who was a catholic who prosecuted protestants. their hair had long, curled, and flowing locks. they wore a broad-rimmed decorated hat. their fancy jackets and breeches were loose. boots were wide and folded over at the top. young men wore earrings and painted their faces. a lady wore her hair in ringlets on each side of her face. her dress was fitted at the waist, with a peaked bodice. it was low at the shoulders with a scoop neckline in front. she often wore much lace, especially at the neck down to the bust line. her outer dress and under-skirt that was revealed in front, were full and made of satin and stiff silk or velvet. only hose of silk were worn at court. a majority of prosperous industrial towns and fee farmers, led sometimes by lords or old landed gentry, were puritans. they dressed plainly and in somber colors such as black, grey, and buff, with no ornamentation except plain white collars and cuffs of linen rather than of lace. wool replaced silk and velvet. no jewelry was worn. the puritan women also wore long white aprons. the puritan women smoothed their hair back into little knobs and covered their hair and head with a white covering. both puritan men and women wore broad-rimed hats and plain shoes. the ordinary country man wore a felt hat, broadcloth coat, woolen trousers, hand-knitted worsted stockings, and plain, strong shoes. the puritan men for a time had short-cut hair. the puritan- parliamentarians were given the name "roundheads" after the crop- headed london apprentices whose rioting had marked every stage of the conflict between king and parliament. religion was a favorite and serious topic of discussion, even among the illiterate. nine-tenths of the people were protestant. on the whole, they were more inclined to salvation by grace than to salvation by good works. popular reading included guides for good manners such as "the rich cabinet" by thomas gainsford, and "youths behavior" translated from the french by francis hawkins. it advised not to sit with one leg on the other, but with the feet even; not to spit on one's fingers; and not to sniffle in the sight of others. books for ladies such as "delights for ladies" by hugh platt told them how to adorn themselves, tables, closets, and rooms with beautiful objects, perfumes, and waters. it taught preserving and the making of candy preserved by sugar, cooking, and housewifery. gervase markham wrote advice for men in "hobsons horse-load of letters", which addressed serious negotiations, private businesses, amorous accomplishment, wanton merriment, and the defense of honor and reputation. "a helpe to discourse" primed a man to meet company with suggested questions and answers, epigrams, riddles, and jests. in henry peacham's "the compleat gentleman" ( ), the model cavalier is portrayed in terms of horsemanship, tilting, sports, choice of companions, reserved and dignified conduct, good scholarship, and responsibility. this popular book was a guide to university, where there was a seven year course of classroom lectures. it advised conversation with men of the soundest reputation for religion, life, and learning, but recreation with those of the same rank and quality. first place was to be given to religion, so that the foundation of all studies would be the service of god. following in importance were: speaking and writing in english or latin (grammar, syntax, and rhetoric), astronomy, astrology, geography (whose authorities were pliny, strabo, and the pagan writers of the first century), chorography [map-making], mathematics (including arithmetic and geometry), poetry, (reading, writing, and criticizing), music (including part-music), drawing, limning [putting drawings in books], painting, art history, exercise (riding, running, leaping, tilting, throwing, wrestling, swimming, shooting, and falconry), logic and disputation (if related to one's intended profession such as the law), philosophy (plato and aristotle), and some medicine and botany. richard brathwaite's "the english gentleman" portrays the somber puritan who accepts the gospel of work. he is a staid and serious businessman. "matrimonial honour" by daniel rogers opined that for success, a marriage must be godly, with the parties equally religious, worshipping together in private and in public. a hasty or worldly marriage would bring repentance. the spouses should agree, but keep to their spheres. children should not be spoiled. large households were more or less self-supporting and were managed by their ladies. work included ordering wool, hemp, and flax; making cloth and dying it; dairy work; brewing; malting; baking; preserving wines; extracting oils; distilling perfume; and putting on banquets. couches were coming into use in parlors. the king and his court entourage settled for most of the year in whitehall instead of traveling around the country. the king let the public into hyde park, the king's private hunting park, for recreation. the city of london and westminster were still separate, but a mass of hovels was springing up in between them. in certain areas there were houses crowded with those wanted for minor offenses, small thefts, and debt. bailiffs did not dare venture into these areas because the inhabitants hid and defended each other unless the offense was a major one. the penalty for stealing even small sums was still death. the water carrier was still active and the night transport of sewage necessary. inigo jones was the first architect of consequence. he had studied in italy and designed and built the banqueting house at whitehall, near westminster, in london in . it had classical proportions and nice shaping and dressing in stone. he was now an arbiter of taste for the king charles and his queen and built many structures for them, including the queen's chapel at st. james palace and her bedroom in the queen's hose in greenwich. all over london and the country he and his pupils built many classical buildings, including houses, churches, stables, lodgings, out-buildings, staircases, galleries, watergates, and archways. they stood in stark contrast to the tudor buildings around them. in the , jones started town planning in london with covent garden fruit and vegetable market and terraced houses around a central piazza surrounded by open arcades with a tuscan church at one end. in , a man from the suburb of hackney introduced a line of coaches rented at s. per hour. they soon became very popular. the flemish johann baptista van helmont demonstrated that metals dissolved in acid can be recovered through chemical means and enunciated the doctrine that each thing in nature has its own specific organization. a large part of england was rebuilt as yeomen expanded their houses and others lower in rank replaced mud and wood hovels with brick and stone cottages. a separate kitchen appeared. the ground floors are boarded over to create bedrooms. permanent stairs replace ladders. glass appears in windows. glass and crockery replace wood and pewter, chairs replace benches. knives and forks become common. about began travel between towns by covered wagons called stage coaches. they carried passengers and goods and stopped at inns for stabling and repairs. work was begun in to make canals that would make marsh waters run to the sea. barges on canals were the most efficient mode of transportation. a barge could carry tons on a canal and only tons on a river. a single horse could haul an -ton wagon on iron rails or on a soft road, but only / of a ton on his back. a new trend of spring-sown crops led to better crop balance and reduced the risks of scarcity in a bad year. but the economy was still volatile. there were riots in london in - from a complete breakdown in political consensus, the factions being the royalist city elite versus the middling and lesser merchants and craftsmen. in , the clock makers broke away from the control of the blacksmiths. the gunmakers also broke away from the blacksmiths. the tinplate workers broke away from the ironmongers. "searching" for bad cloth became more difficult as the industry became more diversified. for instance, a new machine called a gig- mill did the work of many hand finishers. in , charles issued a commission for the reformation of the cloth industry with minute directions for the manufacture of cloth. but there were many disagreements over the details of manufacture and reform was difficult to enforce. by the s, many parishes had a resident intellectual for the first time. the parish priests came from gentry, upper yeomanry, urban tradesmen and clerical families. they were educated and highly learned. they had libraries and were in touch with contemporary religious debates. they saw their role primarily as pastoral care. many wanted to improve the religious knowledge and moral conduct of their parishioners. puritan influence deepened as they forbade dancing, games, minstrels, and festivals. they punished superstitious conduct. they initiated prosecutions in church courts for sexual lapses and drunkenness. the church court had little coercive power and its punishments were restricted to penance or excommunication. many puritan sects espoused equality for women. by the s women were preachers, e.g. in the baptist and anabaptist religions and, until , prophetesses. these sects were mostly composed of the lower echelons of society. poor people did not respond to sermons as did the well-to-do. nor were they as involved in church activity, attending church only for marriages, baptisms, and funerals. charles i not only believed in the divine right of kings and was authoritarian; he was the ultimate autocrat. he had an unalterable conviction that he was superior to other men, who were insignificant and privileged to revolve around him. he issued directives to reverse jury verdicts. parliamentarians oliver cromwell and other educated men opposed this view. the commons voted not to grant charles the usual custom-dues for life, making it instead renewable each year, conditioned on the king's behavior. charles dissolved parliament before this passed. he continued to take tonnage and poundage. charles wanted money for war so he imposed many taxes, but without the consent of parliament. they included many of which had fallen into disuse. he imposed a compulsory "loan" on private individuals, which the courts held was illegal, and imprisoned those who refused. bail was denied to these men. simpler people who refused were threatened with impressment into the navy, which included being landed on shore to fight as marines and soldiers. they sought to revive the old writ of habeas corpus to get released, but to no avail. charles billeted unpaid and unruly soldiers in private homes, which they plundered. it was customary to quarter them in inns and public houses at royal expense. martial law was declared and soldiers were executed. but the citizens did not want martial law either. the magna carta was now seen as a protector of basic liberties, instead of a restoration of certain past rights.. both attorneys and laymen read "the pastyme of people" written by john rastell in , which described the history of the magna carta from to . also read was the "great abridgment" of the english law written by rastell in , and coke's volume of his institutes which dealt with the magna carta, which the crown took to prevent being published until , when parliament allowed it. broad-scale pamphleteering turned england into a school of political discussion. oxford university favored the established church and cambridge university was puritan. the house of commons asserted a preeminence to the house of lords for the following reasons: the estates of the members of the house of commons were three times the extent of the members' of the house of lords. bishops' estates had diminished considerably because of secularization. the members of the house of commons were elected [chosen] by the people. the house of commons drew up a petition of right in , which expanded upon the principles of magna carta and sought to fix definite bounds between royal power and the power of the law. it protested the loans compelled under pain of imprisonment and stated that no tax or the like should be exacted without the common consent of parliament. it quoted previous law that "...no freeman may be taken or imprisoned, or be disseised of his freeholds or liberties, or his free customs, or be outlawed or exiled; or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land" and that "...no man of what estate or condition that he be, should be put out of his land or tenements, nor taken, nor imprisoned nor disinherited, nor put to death without being brought to answer by due process of law". it continued that "... divers of your subjects have of late been imprisoned without any cause showed; and when for their deliverance they were brought before your justices by your majesty's writs of habeas corpus, there to undergo and receive as the court should order, and their keepers commanded to certify the causes of their detainer, no cause was certified, but that they were detained by your majesty's special command, signified by the lords of your privy council, and yet were returned back to several prisons, without being charged with anything to which they might make answer according to the law." it also protested the billeting of soldiers in private houses and martial law trying soldiers and sailors. if these terms were agreed to by the king, he was to be given a good sum of money. since he needed the money, he yielded. he expected tonnage and poundage for the navy for life, as was the custom. but he got it only for one year, to be renewable yearly. the king agreed to the petition, quietly putting his narrow interpretation on it, and it was put into the statute book. in parliament distinguished between treason to the king and treason to the commonwealth. the chief justice held in that acts of parliament to take away the king's royal power in the defense of his kingdom were void; the king may command his subjects, their persons, their goods, and their money and acts of parliament make no difference. but the people refused to pay these taxes. charles thought of more ways to obtain money and disregarded his agreement to the petition of right. without the consent of parliament, charles extended ship money to all the kingdom instead of just the ports. it was used to outfit ships for the protection of the coasts. hampden refused to pay it on principle and the courts ruled against him in the case of king v. john hampden and he was sent to prison. when distraints were tried, the common people used violence to prevent them. the bailiffs were pelted with rocks when they came to distrain property. one man used his pitchfork to take back his steer being taken by the bailiff. if a distraint was successful, people would refuse to buy the distrained property of their neighbors. charles revived the right of the crown to force knighthood on the landed gentry for a fee. charles sold monopolies in such goods as soap, leather, salt, wine, coal, and linen rags although they had been abolished in the last parliament of james. this made employment uncertain for workers and prices high for the public, and put masters in danger of loss of capital. fines were levied on people for the redress of defects in their title deeds. crown forest boundaries were arbitrarily extended and landowners near crown forests were heavily fined for their encroachments on them. money was extorted from london by an illegal proclamation by which every house had to pay three years' rental to the crown to save itself from demolition. but what incensed the people more than the money issue were the changes in the established church. high churchmen, called ritualists, enforced ceremonies offensive to puritan feeling in every parish. the centrally placed communion tables were to be placed at the east end within railings and called "altars", or "mercy seats" as if for mass. they were to be ornamented with crucifixes, images, pretty trifles, books, candles and rich tapestries. bowing was to be done when approaching them. clergymen were to be called "priests" and their authority treated as divine. worship was to be done in accordance with the prescribed forms of romish breviars, rituals, and mass-books. its ritual was to have pomp and ceremony, including kneeling for communion. rings were to be used in marriages and crosses used in baptisms. churches, fonts, tables, pulpits, chalices and the like were to be consecrated, thereby putting holiness in them. churches that did not do this but used unconsecrated or "polluted" articles were closed by interdiction [a catholic censure withdrawing most sacraments and christian burial]. days, postures, meats, and vestments were to be regarded. the clergy was to wear supplices [white linen vestments flowing to the foot with lawn sleeves] and embroidered copes [vestment over the head]. a bishop wore a four-cornered cap, cope and surplice with lawn-sleeves, tippet (long, black scarf), hood, and canonical coat. churchwardens were to take oaths to inform against any who disobeyed. the law still required that all attend sunday sermons. but parishes had some control over who was their preacher, even though a minister could be assigned to a parish by the bishops without the consent of the patron of the church or parish people. by increasing the meager pay of a parish clergyman, they could choose one with a compatible theology or employ a lecturer from outside. the ritualists scolded clergymen for "gospel preaching" and suppressed puritan preaching in public meetings. preaching or printing matter concerning the controversy of free will versus predestination was forbidden. geneva bibles, which were popular among laymen, were prohibited from being imported. many were excommunicated for sitting instead of kneeling at communion. the clergy prohibited marriage if they liked by withholding their license, and they licensed marriages without banns. the ritualists encouraged certain sports to be played after church on sunday. the puritans protested vehemently to this because they wanted to strictly observe the sabbath. the puritans saw the high churchmen as wanting to return to the doctrine and customs they thought to be papist. the ritualists were absolutists in their political views and accepted the king's intervention in church matters. the ecclesiastical court of high commission enforced the edicts of the church, excommunicating those who did not conform and expelling clergymen who, for instance, did not bow at the name of jesus or wear the surplice. it was used against the puritans and imposed high fines and imprisonment for religious eccentricity and puritan preaching. charles supported the established church in this endeavor because it agreed that he had a divine right to rule. the universities and high churchmen were beginning to adopt the doctrine of free will over predestination. parliamentarian and puritan oliver cromwell and others feared this presaged a return to justification by works and the popish faith. in parliament, he spoke out against the tyranny of the bishops, whose offices he wanted abolished, and the elaborateness of church services. to avoid persecution, many puritans emigrated to virginia and new england. they were led by magistrates, country gentlemen, prominent businessmen, attorneys, and other professionals. in , the massachusetts bay colony was chartered at the instigation of john winthrop as a puritan refuge. its leaders led a migration of puritans organized to include five each of armorers, bakers, blacksmiths, carpenters, shoemakers, merchants; three each of clothiers, chandlers, coopers, military officers, physicians, and tailors; two each of fishermen, herdsmen, and masons; on tanner, and one weaver. the fare was five pounds and an applicant was interviewed to make sure he was a puritan. he got acres, or more for a larger family. but if he paid pounds into the common stock he received acres of land, plus more for each dependent. maryland was founded in as a haven for catholics, but its charter precluded a government-established religion. it was granted to lord baltimore to hold in free socage and was named after charles' wife, who was catholic. catholics in england could practice their religion only in their homes and could not carry arms. as hostility grew, censorship of books and plays accelerated and the number of authorized printers was reduced in by decree of the star chamber. in s effective government control of the press collapsed. then there were many pamphlets and newspapers with all variety of interpretation of the bible and all sorts of political opinion, such as on taxation; law and the liberties of the subject; religion; land and trade; and authority and property. twenty-two pamphlets were published in and , in . in the canons of the church included a requirement for parsons to exclaim divine right of kings every year. the commons soon resolved that this was contrary to the fundamental laws and liberties of the realm. the short parliament of was dissolved soon because the commons demanded redress of its grievances. the long parliament of - requested by the house of lords was agreed to by charles because he still wanted money. in election of members to the long parliament, voters wanted to know where contenders stood on certain political issues. in this parliament, the commons ceased to agree on all issues and started to rely on majority rule. the house of commons was led by john pym, a middle class landholder with extensive commercial interests. the commons treated the king's refusal to act with them as a relinquishment of his power to parliament. when it met at the long parliament, pym expressed the grievances of the king's actions against the privileges of parliament, against religion, and against the liberties of the subjects. specifically, he decried the disregard of free speech and of freedom from prosecution afterward, and the arbitrary dissolution of parliament. secondly, he alleged popery had been encouraged and the ecclesiastical jurisdiction enlarged. thirdly, he protested the patent monopolies given to favorites to the detriment of the buying public, the imposition of ship money levies beyond the need of national defense and without the consent of parliament, the revival of the feudal practice of imposing a fine for refusal to accept a knighthood with its attendant obligations, the enlargement of the king's forests and driving out from hence tenants with lucrative holdings, extra judicial declarations of justices without hearing of counsel or argument in many criminal matters, and the abuses of the prerogative courts in defending monopolies. parliament's assertion into religious matters and foreign affairs was unprecedented, those areas having been exclusively in the power of the king. the long parliament begun in removed many of the king's ministers and forbade clergy from sitting in parliament or exercising any temporal authority. it passed measures which were not agreed to by the king. it undid the lawless acts of the king and the court decision in the case of king v. hampden. ship money was declared illegal. the new concept that the present parliament should not be dissolved but by its own consent was adopted. the star chamber and court of high commission were abolished. the oath ex officio, an oath to answer all questions, was originally meant for facts at issue, but had been extended by these courts to opinions, beliefs, and religion and had led to abuses. the star chamber had been the only court which punished infractions of the kings' edicts, so now his proclamations were unenforceable. protection against self-incrimination was given by the provision that no person be forced "to confess or accuse him or herself of crime, offense, delinquency, or misdemeanor, or any neglect... or thing whereby, or by reason whereof, he or she shall or may be liable or exposed to any censure, pain, penalty, or punishment whatsoever, as had been the practice in the star chamber and the court of high commission. these measures were also adopted: no one may be compelled to take knighthood nor undergo any fine for not so doing. the forest boundaries are returned to their former place. all subjects may now import gunpowder; they may also make and sell gunpowder and import saltpeter. the root and branch petition of to abolish episcopacy roots and branches complained about pressure on ministers by bishops on threat of dismissal not to preach about predestination, free grace, perseverance, original sin remaining after baptism, the sabbath, doctrine against universal grace, election for faith foreseen, free-will against anti-christ, non- residents, nor human inventions in god's worship. it also complained about the great increase of idle, lewd, and dissolute, ignorant and erroneous men in the ministry who wanted only to wear a canonical coat, a surplice, and a hood, bow at the name of jesus, and be zealous of superstitious ceremonies. it also complained about the swarming of lascivious, idle, and unprofitable books, pamphlets, play-books, and ballads, such as ovid's "fits of love", "the parliament of women", barn's "poems", and parker's "ballads". further it opposed the restraint of reprinting books formerly licensed without relicensing. it protested the growth of popery and increase of priests and jesuits, the strict observance of saints' days whereby large fines were imposed on people working on them, the increase of whoredoms and adulteries because of the bishops' corrupt administration of justice and taking of bribes, and the practice of excommunicating for trivial matters such as working on a holy day or not paying a fee. it further protested the fining and imprisoning of many people; breaking up men's houses and studies; taking away men's books, letters, and writings; seizing upon their estates; removing them from their callings; and separating them from their wives, to the utter infringement of the laws and of people's liberties. it complained that these practices caused many clothiers, merchants, and others to flee to holland, thus undermining the wool industry. it finally complained of the multitude of monopolies and patents, large increase of customs, and ship-money. many londoners signed this petition. the house of commons decided to forbid bowing at the name of jesus. when the house of lords disagreed with this, the house of commons claimed that it represented all the people and didn't need the concurrence of the house of lords. the house of commons ordered that all communion tables be removed from the east end of churches, that the railings be taken away, and all candles and basins be removed from it. further, all crucifixes, images of the virgin mary, and pictures of any of the trinity were to be demolished, including those in markets and streets. further, all bowing at the name of jesus or toward the east end of the church or toward the communion table was forbidden. all dancing or other sports on sunday was forbidden. enforcement was to be done by justices of the peace and mayors. but these orders never became statutes. enforcement of the law for not coming to church was not now regularly enforced, so catholics had a respite. rebellion of irish catholics against england and english protestants broke out in ireland in . parliament didn't trust the king with an army that he could use against themselves so it passed the following two measures expanding the navy and calling out the militia and naming certain persons to be lieutenants of each county. the admiral shall impress as many seamen as necessary for the defense of the realm. this includes mariners, sailors, watermen, ship carpenters, but no one over the age of or masters or masters' mates. if one hides, he shall be imprisoned for three months without bail. justices of the peace shall impress as many soldiers as the king may order for war in ireland. this is despite the right of a citizen to be free from being compelled to go out of his county to be a soldier because the danger from ireland is imminent. excluded are clergymen, scholars, students, those rated at a subsidy of land of three pounds or goods of five pounds, esquires or above, the sons of such or their widows, those under eighteen or over sixty years of age, mariners, seamen, and fishermen. the penalty for disobeying is imprisonment, without bail or misprise, and a fine of ten pounds. if an offender can't pay the fine, he shall be imprisoned a year more, without bail or misprise. the right to call out the county militia had been a prerogative of the crown, so the king issued a proclamation ordering the soldiers to ignore this order and obey him. so parliament declared this proclamation void. the king accused five leaders of parliament, including pym, of trying to subvert the government of the kingdom, to deprive the king of his regal power, to alienate the affections of the people toward their king, forcing the parliament to their ends by foul aspersions, and inviting the scots to invade england. in , the king entered parliament with soldiers to arrest these five. they had flown, but parliament was shocked that the king had threatened the liberties of parliament with military force. the citizens of london, in their fear of popery, rose in arms against the king, who left the city. both sides raised big armies. the goal of the parliamentarians was to capture the king alive and force him to concessions. when the parliamentarians took oxford in , they purged its faculty of royalists. the law real wages, which had been falling, reached their low point and the gap between the poor and others widened. there were depressions from - and from to about , which called for royal proclamations for the relief and distress, especially among the poor. the book of orders, for the relief of distress in earlier reigns, was to be reissued. the assize of beer and bread maintaining quality, prices, weights, and measures, was to be duly kept. hoarding of foodstuffs was to be punished. fish days and lent were to be observed to maintain the fishers. abstaining from suppers on fridays and on the eves of feasts was ordered in all taverns and commended to private families. city corporations were to give up their usual feasts and half the charge given to the poor. foreign ships were not to be supplied with food for long voyages. the revised book of orders also covered the regulation of beggary, the binding of apprentices, and the general relief of the poor. all magistrates were to enforce the rules and raise special rates from all parishes, the richer of these to help the poorer. from to these statutes were passed: no one shall engage in sports or any pastimes outside his own parish or bearbaiting, bullbaiting, interludes, plays or other unlawful pastimes inside his parish on sundays because such has led to quarrels and bloodshed and nonattendance at church. the fine is s. d. or if the offender does not have the money or goods to sell to pay, he shall be set in the public stocks for three hours. no carrier with any horse or wagon or cart or drover with cattle may travel on sunday or else forfeit s. no butcher may kill or sell any victual on sunday or else forfeit s. d. every innkeeper, alehousekeeper, and other victualer permitting a patron who is not an inhabitant of the area to become drunk shall forfeit s. or be place in the stocks for six hours. offenders convicted a second time shall be bound by two sureties to the sum of s. as of , a parent sending a child out of the country to go to a catholic school was to forfeit pounds, one half to the informer and one half to the king. the petition of right herebefore described was passed as a statute in . judicial procedure the star chamber decided cases as diverse as a case of subordination of witnesses, cases of counterfeiters of farthing tokens, and cases of apothecaries compounding ill medicines. it tried to keep down the prices of foodstuffs for the benefit of the poor; it repressed extortion and false accusations, and disbarred an attorney for sharp practices; it punished defamation, fraud, riots, forgery of wills; it forbade duels. a special virtue of its position was that it could handle without fear matters in which men of social or local influence might intimidate or overawe juries or even country justices. it punished a lord who caused records to be forged, unlawfully entered lands, and seized tithes. it disciplined a nobleman for drawing a sword on a lord hunting hare. in one of its cases, sir edward bullock, a knight wanting to enclose a common of a thousand acres threatened his neighbor blackhall when he would not sell his lands and rights. the knight hired a man to break down the hedges and open a gate that had been staked up, so that his neighbor's cattle would stray. he sued his neighbor three times for trespass, lost his cases, and threatened revenge on all the witnesses who testified against him. he had the house of one pulled down. the pregnant wife and a naked child were turned out and had to lie in the streets because no one dared to take them in, even when a justice so directed. the witness, his wife, and family took refuge in an unheated outbuilding in the winter. he and his wife and one child died there. the knight had another witness cudgeled so that she was black and blue from the waist up, and could not put on her clothes for a month. the knight threatened to set fire to the house of another witness, and sent his men to pull him out of doors and keep him prisoner for some hours. the star chamber imprisoned the knight and his men. the knight was fined , pounds and the men pounds each. the knight also had to pay one witness pounds in reparation to the surviving children of the family whose house had been pulled down. but the power of the star chamber was abused by king charles i. for instance, one lord was accused by another of calling him a base lord. the evidence was paltry. but he was fined , pounds, one-half going to the king. a lord who was accused of converting agricultural land to pasture was fined , pounds. a person who exported fuller's earth, contrary to the king's proclamation, was pilloried and fined , pounds. a man who defaced a stained-glass window in a church was fined pounds and ordered to pay for a plain glass replacement. a man who became sheriff of a county and had taken the oath which bound him to remain in the county was elected to parliament and stood in opposition to the king on many matters. he was imprisoned for many years until he made a humble submission and had to pay a heavy fine. a london importer who was alleged to have said "that the merchants are in no part of the world so screwed and wrung as in england; that in turkey they have more encouragement" was fined , pounds for seditious and slanderous words against his majesty's happy government. a scottish minister circulated a book appealing to parliament to turn out the bishops and to resist its own dissolution by the king. in it he called the bishops men of blood, anti-christian, satanical, ravens, and magpies, preying on the state. he was against kneeling at the sacrament and denounced the queen for her catholic religion. he blamed the state for the death of citizens of a certain town by famine. for as he did "scandalize his majesties sacred person, his religious, wise, and just government, the person of his royal consort the queen, the persons of the lords and peers of this realm, especially the reverend bishops", he was fined , pounds, was to be unfrocked (which was done by the court of high commission), and was whipped, pilloried, one ear nailed to the pillory and cut off, his cheek branded, and his nose slit. then he was imprisoned for life, but only served ten years, being released by a statute of the long parliament. a puritan writer pyrnne wrote a book that included a condemnation of masks and plays, and all who took part, and all who looked on as sinful, pernicious, and unlawful. it opined that nero had attended plays and deserved to be murdered. since charles had attended plays and the queen had taken part in a mask, it was inferred that pyrnne meant them harm. his indictment alleged that "he hath presumed to cast aspersions upon the king, the queen, and the commonwealth, and endeavored to infuse an opinion onto the people that it is lawful to lay violent hands upon princes that are either actors, favorers, or spectators of stage plays". the justices saw in the book an attempt to undermine authority. the chief justice called the book a most wicked, infamous, scandalous, and seditious libel. pyrnne was sentenced to be degraded by oxford and disbarred by lincoln's inn, to be fined , pounds, to be pilloried and to have his ears cut off, and then to be imprisoned for life. three men who wrote attacks on the bishops and ecclesiastical courts, such as alleging that the bishops suppression of fasts and preaching had brought the pestilence upon the people and that the bishops had dishonored god and exercised papal jurisdiction in their own names, were each sentenced to , fine, the pillory, where their ears were cut off, and to life imprisonment. one, who had been convicted for libel before, was branded on both cheeks: "s.l." for seditious libeller. others printed similar material. in vain the star chamber limited the number of london printers to twenty, and made licensing stricter. these prisoners were set free by the long parliament. charles i intimidated justices to obey him in decision-making even more than james i. charles i so abused the power of the star chamber court that it was abolished by the long parliament and with it, the involvement of the king's council in civil and criminal cases. the regular church courts punished people for heresy, non- attendance at church, sexual immorality, working on the sabbath or a holy day, non-payment of tithes, and lending money at interest. the special ecclesiastical court, the court of high commission, was composed of clerics appointed by the king and decided cases of marriage annulment, alimony, adultery, married couples living separately, cruelty of husbands to wives, and habitual drunkenness. but it also took on cases of schismatics and extended its power over them to include staid and solid puritans, who uniformly believed that salvation was the only worthy earthly aim. acting on information attained through secret channels or from visitations, it would summon the accused, who was required to give, under oath, "full, true, and perfect" answers to broad and undetailed charges made by secret informants. refusal to take the oath resulted in commitment for contempt of court. if he denied the charges and fled, the court could hold the hearing without him. many fled out of the country or went into hiding in it. if the accused went to the hearing, he could not take an attorney with him. most of the issues involved clergy refusing to use the litany, to make the sign of the cross in baptism, to wear the surplice, or to publish the book of sports, and insistence on extempore prayer and preaching. other issues were clergy who, from the pulpit, inveighed against ship-money and unjust taxes, and spoke rudely against the bishops and tyrannical princes. one case is that of samuel ward, the town preacher of a large town, heard in . he neglected bowing or kneeling on coming to his seat in church and preached against the book of sports. he did not read the set prayers from the official book, but said prayers he had himself conceived. to this he replied that a parrot could be taught to repeat forms and an ape to imitate gestures. but his most serious offenses had to do with his utterances from the pulpit derogatory to the tenets and discipline of the church. he was accused of saying that he believed that congregations still had the right of election of all officers, including ministers. also, he allegedly said that in preaching on the christmas holidays he told his people "that in the following days they might do their ordinary business, intending to cross that vulgar superstitious belief, that whoever works on any of those twelve days shall be lousy". he allegedly warned his people to beware of a relapse into popery. ward was convicted of depraving the liturgy, tending toward schism, frightening the people, and encouraging the overthrow of all manner of government. he was removed from his position, deprived of his ministerial function, suspended and silenced during the king's pleasure. he was ordered to make submission and recantation both in court and in his church and to give bond for pounds. when he did not do this, he was sent to prison and lay there nearly four years, and died a few months later. in another case, a mrs. traske was imprisoned for at least eleven years for keeping saturday as her sabbath. many people were excommunicated and books censored for essentially political reasons. in , the king proclaimed that the common law courts could not intervene in ecclesiastical courts. the court of high commission was abolished by the long parliament. justices of the peace had general and quarter sessions, the latter of which were held four times a year with all justices of the peace attending. it was primarily a court of appeal from penal sentences. but it was also an administrative body to determine taxes and make appointments of officials and grant licenses for businesses. in , in distributing a deceased person's estate, the chancery court upheld a trust designed to hold the property for an heiress so that it did not become her husband's property. at the request of parliament, the king had all justices serve during their good behavior instead of serving at the king's will, which had been the practice for ages. this increased the independence of the judiciary. the rack was used for the last time in before the long parliament met. it was used to torture a rioter before hanging. men were still pressed to death for failure to plead, pickpockets still executed for the first offense, and husband murderers still burned. chapter the times: - for four years, there was civil war between the king, backed generally by the upper class, the established church, and most of the gentry, against the parliamentarians, backed generally by middle class yeomen, town dwellers, some of the gentry, most of the great corporations, the city of london, the ports, the seamen, and the navy. oxford university was royalist, and cambridge university was puritan in sympathy. archery was not used in the war, having become just sport by . flint-lock pistols, which relied on flint striking steel to ignite the powder, as well as swords were used by horsemen in the civil war. footmen were musketeers using a match lock with a cord boiled in vinegar as the match, and dressed in leather doublets and an iron-pot headpiece; or pikemen with long wooden poles with spearheads of iron or steel and short swords, and dressed in armor. this was the last time armor was used. the parliamentarians wore orange scarves to distinguish themselves from their enemy. cromwell, who had a natural aptitude for military matters, selected for his troops, puritan zealots with a puritan code of behavior which included no drinking or swearing. he selected horsemen based on ability rather than social class. he was regarded as one of the leaders of the independents, who wanted total abolition of the monarchy and of the aristocracy. when made a leader of the new model army, cromwell dressed all his foot men in red with only the facings being regimental colors. the new model army had been assembled because there had been disagreement about policy among the members of parliament who held commissions. almost all members gave up their commissions. for their continued support, many wives and also prostitutes put on men's clothing and followed the troops. they nursed the wounded. those many wives who stayed at home pleaded and answered in court; petitioned to the house of commons, e.g. for release of debtors from prison, high taxes, lack of work, and arbitrary government; and made other public appearances. puritan and royalist newspapers printed the news at least once weekly. poet john milton pled for civil and religious freedom, freedom of social life, and freedom of the press. he stated: "give me the liberty to know, to utter, and to argue freely, according to conscience, above all liberties." the mayor and citizens of london were given authority in to fortify all highways leading to the city and levy a tax on inhabitants for this purpose. when london was deprived of coal during the war, trees and flowers again flourished there. officers and seamen in navy ships were authorized in to take one-third of all prize goods captured, the other two-thirds going to the state. parliament approved certain persons to set forth ships at their own expense to defend the realm in . they were allowed to keep any ships, goods, ammunition, or moneys they seized. saltpeter men were appointed by parliament in and later times to search and dig for saltpeter in pigeon houses, stables, and outhouses, but not dwelling, shops, or milkhouses. they had to repair any damage done to the contentment of the owners. complaints were made to parliament that there were scandalous and ill-affected fomenters of the civil war and disobeyers of the ordinaries of parliament and deserters of their ordinary places of residence. these complaints were made by members of the university of cambridge, students, clergy in surrounding counties, and schoolmasters. so a committee was established in to investigate and sequester their lands and goods, excepting one- fifth of the estate for the wife and children. when charles was captured in , the episcopacy of the bishops was abolished. when parliament was about to reinstate charles as king with weakened powers and establish a presbyterian state church, the soldiers, who were religious independents and who still had not been fully paid (the infantry pay was weeks in arrears and the cavalry weeks) despite plans to disband them, spontaneously took the king by force. they demanded liberty of conscience to practice their own religion and their pay. cromwell sided with the army and then became leader of the house of commons. charles dissembled in his negotiations with the army generals. he felt freed from his promises as soon as the pressure was removed. the army could not forgive charles' duplicity and deceitfulness and insisted upon his death as the only way to bring peace. cromwell gave up hope on negotiations with charles when he intercepted a letter by charles to his queen decreeing the final doom of the army adherents in favor of the scottish presbyterians. during protracted negotiations over months between the army and parliament over a new constitution, a renewed support for the king, which was inspired by him, necessitated a second civil war to put down this revolt and subdue its scot supporters. eventually the army took control of parliament by force, only allowing the few members who agreed with them on the trial of the king into parliamentary meetings. so charles was tried in , found guilty of "an unlimited and tyrannical power to rule according to his will, and to overthrow the rights and liberties of the people ... which by the fundamental constitutions of this kingdom were reserved on the peoples' behalf in the right and power of frequent and successive parliaments or national meetings in council", and maintaining a war against his subjects, which amounted to treason. to prevent his adherents from trying to reinstate him, he was condemned to death and beheaded in january . to pay for the civil war, an assessment tax on the yearly value of rents, annuities, and offices was often levied. the main burden of this tax fell on the gentry rather than the merchants and smaller men of property, as previous taxes had. an excise tax, a tax on consumption, was begun on ale and beer and then extended to meat, salt, starch, soap, and paper. it was gradually extended to many goods. the excise taxes were paid, as was the customs tax, by manufacturers on goods made in england and by foreign manufacturers on goods at the ports. parishes had to give maintenance to maimed soldiers and provision for the livelihood to the wives and children of killed soldiers. masters of apprentices who became soldiers had to take them back as apprentices without loss for their absence in defense of the commonwealth. masters who received considerable loss by the absence of their apprentices received reasonable satisfaction from the public stock. from - , royalists were purged from oxford and a group of baconians moved into the university behind parliamentary armies. at the two universities, books were no longer chained to the bookcases. the universities were freed from taxation. after the civil wars, cromwell led the country. he was a military, political, and religious leader. he had become a puritan zealot after a youth of gambling, drinking, debauchery, and rioting. he believed that military success was a reflection of divine favor and he regarded himself as one the few elect preordained for salvation. those in power in the new commonwealth tended to explain their regime in terms of popular consent, and the takeover from charles i as due to his breaking of a contract with the people. most people dressed in puritan fashion. a puritan's favorite readings were the old testament, epistles of st. paul, and writings of john calvin. wealth and prosperity steadily increased in spite of the civil wars. during cromwell's tenure, there was a marked revival of economic prosperity. by the mid- s, landlords had been able to shorten their leases so that a lease of twenty-one years was the predominant form of landholding. patent protection was given in for seven years to the inventors of a device for salvaging ships' goods and cannons from the seas. with it they could convert to their own use one half of the items retrieved, the other half going to the navy and parliament. patent protection was given in to george manby on his new invention for boiling liquors and making salt with less coal and wood and iron, lead, and copper for fourteen years. patent protection was given in for fourteen years to jeromy buck for melting iron, lead, tin, copper, brass, and other metals with coal without burning charcoal. the merchant adventurers were incorporated again in to have a monopoly. it was required to admit into membership for pounds anyone free of london and bred as a merchant, and for pounds any non-inhabitant of london. the penalty for trading for one who was not free of the corporation was forfeiture of his goods. in , the house of commons abolished the monarchy and in the house of lords. also in it declared that england "should thenceforth be governed as a commonwealth and free state by the supreme authority of this nation, the representatives of the people in parliament." it made a new constitution. john milton defended the commonwealth as superior to the monarchy because it could not deteriorate into tyranny in his books: "first defense of the people of england" in , and "second defense" in . he lauded cromwell as great in war and great in peace, and exemplifying the principle that "nature appoints that wise men should govern fools". thomas hobbes, the son of a clergyman, and tutor to students, wrote "leviathan" in on his theory of sovereignty. hobbes thought that states are formed as the only alternative to anarchy, barbarism, and war, so that supremacy and unity of a sovereign power is essential to a civilized life and the protection of the citizenry. a sovereign may be a man or body of men as long as his or its authority is generally recognized. there must be a social contract among the citizenry to obey a certain sovereign. to avoid religious conflict, there must be a complete subordination of the church to the state and the religion of a state must be dependent upon its secular sovereign. hobbes thought that knowledge of the world came through experience and not reason alone. only matter exists, and everything that happens can be predicted in accordance with exact, scientific laws. he regarded human societies as purely mechanical systems set in motion by human desires. he saw self interest as the mainspring of moral law. conflicting self interests transformed into a lawful system of agreements. hobbes opined that all power really originated in the people and that the end of all power was for the people's good. on the other hand, james harrington, who wrote "the commonwealth of oceana" in , opined that a stable society depended on a direct relationship between the distribution of property and political power; no one with property worth more than , pounds should be allowed to acquire more and property should be divided among children. a senate of mature property owners were to make and debate the laws while an assembly elected by universal suffrage was to vote on them because "a popular assembly without a senate cannot be wise and a senate without a popular assembly will not be honest". a third of the senate would turn over every year. john milton defended the execution of the king in "the tenure of kings and magistrates" in which he maintained that the people may "as often as they shall judge it for the best either to choose him or reject him or depose him, though no tyrant, merely by the liberty and right of freeborn men to be governed as seems to the best". he also wrote in favor of liberty of the press. ordinary speech found its way into prose writing. lands of more than royalists, including church lands, were confiscated and sold or leased by county committees. many royalists put their lands into trusts or turned them over to relatives or sold them outright to prevent confiscation. it was an upheaval comparable to the dissolution of the monasteries. also, specified papists who had taken up arms against the realm lost their lands, goods, money, rents, and two-thirds of their personal estates. but allowance was made for the maintenance of their wives and children. the book of common prayer was abolished because of its burdensome ceremonies. it was replaced by a directory for public worship. according to this, the sunday service was to include reading of the scriptures, prayer, and a sermon, ordinarily on some text of scripture which would be explained with reasons therefore and applied to peoples' lives so they could see if they had sinned or not. the ending of episcopal patronage gave some parishes the right to elect their own ministers. all festivals and holy days were abolished, e.g. christmas, easter, whitsuntide. instead, scholars, apprentices, and servants were to have recreation and stores were to be closed every second tuesday of the month. the usual merry-making, music, dancing, and sports after the sunday service were discontinued. a day for fasting: the last wednesday of every month, was declared by statute. this day was to be "kept with the more solemn humiliation, because it may call to remembrance our sins, and the sins of our forefathers, who have turned this feast, pretending the memory of christ into an extreme forgetfulness of him, by giving liberty to carnal and sensual delights, being contrary to the life which christ himself led here upon earth, ...". this statute lasted for only five years from because observance of it was not consistent throughout the country. educational opportunities such as in grammar schools were more widespread and stronger than ever before or since until the s. about % of men in london were literate, and % of men nationwide. about half the women in london were literate by . in , the marshalls of the admiralty and five major ports were ordered to search all ships for stolen children since it had been a problem in london. the elderships of the church were given power in to suspend from the sacrament of the lord's supper all ignorant and scandalous persons. ignorance was lack of knowledge that there is a god and this is the one true god we worship, that this god is one, yet three persons: father, son, and holy ghost, that god created man in his own image, that all have sinned and therefore shall die, that there is one mediator between god and man: jesus christ, who died on the cross to save men from their sins, that he rose from the dead, ascended into heaven, sits at the right hand of god, and intercedes for us, that christ and his benefits are applied only by faith, that the souls of the faithful live with christ in blessedness, that non-believers and non-repenters shall perish eternally, that the sacraments are baptism and communion, and that there is a judgment day on which the righteous will be given life eternal and the wicked shall receive everlasting punishment. scandalous persons are those who blasphemously speak or write anything of god, his holy work or the sacraments; an incestuous person; an adulterer; a fornicator; a drunkard; a profane swearer or cursor; a murderer; a worshipper of images, crosses, crucifixes, relics, saints, or angels; makers of images of the trinity; one who professes not to be in charity with his neighbor; any challenging another to fight or accepting such challenge; on the lord's day, dancing, dicing, cards, masking, wake, shooting, bowling, football, wrestling, plays, interludes, fencing, bullbaiting, bearbaiting, hawking, hunting, coursing [hunting with hounds], fishing, fowling, selling wares, travel without reasonable cause; a brothel-house keeper; one who solicits the chastity of another; one who marries a papist or consents to the marriage of his child to a papist; own who goes for advice to a witch, wizard, or fortune-teller; one who assaults his parents, or any magistrate, minister, or elder in the execution of his office; and one attainted of barratry [purchase or sale of office or preferment], forgery, extortion, or bribery. if such a person persists, he shall be excommunicated. cromwell did not disapprove of activities prohibited because of the recreation they provided, but thought that they had become too central to people's lives. he did not close the taverns or ale houses. in it was required that public preachers be approved by a commission nominated by the lord protector and parliament because there had been too many "weak, scandalous, popish, and ill- affected" ones. in named persons were ejected as scandalous, ignorant and insufficient ministers and schoolmasters. because the poorer parishes of london were having problems supporting their poor, a corporation for the poor of london was established in with authority to erect workhouses and houses of correction. imprisoned debtors who had less than five pounds and less that five pounds worth of trade tools and clothing and bedding for his family were ordered released in . wardship was abolished. military tenures were abolished. feudal tenures were converted into freehold in . in those living in crown forest land were given free socage in that land. the game laws were not enforced, so people could eat deer. enclosures were increasing and parliament was disinclined to protect copyholders against enclosures, favoring those with rights of ownership. enclosure was no longer deterred especially after abolition of the star chamber. the legal device of "strict settlement" evolved to prevent heirs from breaking up estates enabled families to concentrate land and capital into large units. the oldest son inherited the land and the younger sons now received money. clover seed was sold in london by . it revolutionized the cultivation of barren land. england began to export instead of import grain. but vagrancy increased from people dispossessed of land. and the village artisan, when deprived of his field and of his rights of common, could not continue to work at home, but had to accept the wages offered to him in an employer's workshop. employers and entrepreneurs were now free from control by the crown. there were no more attempts to supervise quality of manufactures or to fix prices or regulate wages. there was greater freedom established in relations between employers and workers. the government no longer tried to compel employers to keep employees in times of economic slump. the requirement of seven year apprenticeships and being the son of a freeholder to be an apprentice were not enforced. the economy was still volatile due ostensibly to variable harvests, amount of gold and money in circulation, and balances of trade, and to periods of plague. wages rose steadily. the rise in prices ended about , and prices remained stable until about . there was more mobility of people. taxation became regular and it was controlled by representatives of the taxpayers. population growth gradually stabilized. capitalism was coming into being. for instance, the clothier was now a manufacturer. he had become a contractor, taking wool to the specialist spinner, the yarn to the specialist weaver, the rough cloth to be washed and stretched, and finally to the dyer. this cloth was sold at retail by the drapers. tin on the surface was exhausted, so capital was used to drive deep shafts in tin mines. no longer did a single man with a single ship sail around until he found a market, but companies trading overseas had their ships, wharves, and depots furnished by men's savings put into a common stock. the first major capitalist industries were coal mining, iron mining, and foreign trade because they all needed large investments, and thus joint-stock company organization. cromwell reconstituted the east india company on a wider and more permanent basis. he gave it a new charter in which included authority to make stock permanent, thus ensuring a continuity of capital. this solved the problem of the competition of overlapping voyages which still occurred despite their terms of several years. the company became one of the first permanent joint-stock companies. now the stock was never wound up. the company had permanent capital which could grow. the absence of competition among voyages made the company stronger in the face of a common enemy, such as a rival trading country or indian groups. the charter also authorized the company to fortify and colonize any of its establishments and to transport to them settlers, stores, and ammunition. later in , the company threw open the freedom of the company to the public for a nominal sum of five pounds. now the merchant adventurers and private traders could participate. it provided that dividends were to be paid only in cash and not in kind (goods). it also provided for appraisals of the company's property to be made every three years, so any shareholders could redeem their shares proportionately. his shares would then be resold. people began to buy and sell their shares among each other. the company made the minimum subscription pounds. each person holding pounds worth of shares had one vote. holding , pounds worth of shares qualified one for election to the committee of twenty-four. the seats of the members of this committee and of the governor and deputy governor could no longer be permanent, but had limited and staggered terms. the continuity of capital took the place of the permanence of the governing body in providing stability. there was a regular scale of salaries for employees, and rules of conduct such as the one disallowing any clerk of the india house from going to play houses, dancing schools, or taverns. the company established almshouses for its widows and orphans. in the muscovy company, renewed its charter for trade in russia and established a new general stock. if a man bought a share, he bought freedom of the company. an annual dividend was declared from the annual profits. commercial men regularly kept accounts with bankers. merchants used division to apportion profits or losses to the parties whose capital was involved. simple and compound interest were used. the concept of contract became a familiar one. regular private bankers of london emerged from the goldsmiths from to . they issued bank notes and paid checks. cromwell increased trade by seizing territories, establishing colonies, and warring with competitors for master of the seas and trade. in it was provided that no one who paid his assessment for soldiers' pay would have to quarter any of them. authority was given in to impress seamen: mariners, sailors, watermen, surgeons, gunners, ship carpenters, caukers, coopers, whoymen, and carmen for carriage of victuals. english ships were embellished with decoration. their sail area was increased by triangular fore and aft sails. the navy increased from to vessels. after serving in foreign wars, ex-soldiers were allowed in to practice any trade without serving a seven year apprenticeship. colonies new hampshire and maine were established in , connecticut in , and rhode island in , as offshoots from other colonies. in a corporation was established to teach the gospel of jesus christ in new england to indians. about , steel was hardened by repeated quenchings and temperings when the steel had reached certain colors. brass was made from copper and zinc alloyed together. there were power-driven rolls for the coinage from . strips of silver were passed between engraved rolls. then coins were punched out and their edges serrated. in the s, huygens made the first pendulum that worked practically in a mechanical clock. this new clock increased the accuracy of time-keeping tenfold. he also introduced the concept of mathematical expectation into probability theory. there was a thermometer which used liquid such as water or alcohol in a glass tube instead of air. dutchman stevinus showed that the pressure at the bottom of a column of liquid is proportional to the height of the column, and not to its bulk, about . he also studied oblique forces, and the balancing of such that could bring about "stable equilibrium". evangelista torricelli, an italian student of galileo, discovered in that any fluid will be supported at a definite height, according to its relative weight, as compared with air. he realized that a mercury column, inches in height, in a long glass tube inverted in a cup of mercury, was being supported by air pressure exerted on the mercury in the cup. when he observed that this height changed with the weather, he had invented the mercury barometer. in his work, he created and used vacuums. blaise pascal, a french mathematician, physicist, and religious philosopher, was a child prodigy. at the age of , he proved euclid's nd theorem that the sum of the angles of a triangle is equal to two right angles. before age , he wrote a book on conic sections. he is famous for his theorem that a hexagon inscribed in a conic section has the property that the three meeting points of the opposed sides are always in a straight line. he constructed a calculator, which could handle nine-digit numbers, in to assist his father, also a gifted mathematician, in tax computations he did as a local government official. he had torricelli's mercury barometer carried up a mountain and found that the height of the column dropped as altitude increased, and thus that air pressure decreased with altitude. this showed that the attribution of these effects to nature's abhorrence of a vacuum were due instead solely to the weight and pressure of air. he determined that the height to which the mercury rose was the same regardless of the shape of the vessel containing it. around , he did experiments with double vacuums and on the results formulated his principle that pressure applied to a confined liquid is transmitted undiminished through the liquid in all directions regardless of the area to which the pressure is applied. around , he laid the foundations for the theory of probabilities after being asked by a gambling friend why, in playing dice, some frequencies came up more often than others. he developed a means of calculating probabilities with his "pascal's triangle" of coefficients of (a+b) raised to the nth power. each row represents the coefficients of a power one greater than the power of the previous row. each number is the sum of the nearest two numbers in the row above it. he and lawyer and mathematician pierre fermat invented the theory of probabilities. fermat also proved that the law for refraction (bending) of light results from light's following the path that takes the shortest time. he founded number theory, the study of properties of whole numbers, in . fermat formulated the notion of a line tangent to a curve and started the development of differential calculus, in which a rate of change is expressed as a function of time in equation form and also as a tangent to the curve associated with that equation. this work helped lay the foundation for the mathematics field of analysis. he and german gottfried leibniz formulated the principle that an equation with two unknown quantities can represent a curve. leibnitz believed that man's mind can arrive at truths about entities by pure thought. jean ray from france concluded from his experiments that every piece of material has a given weight, including air and fire. otto von guericke from germany discovered that, in a vacuum, sound does not travel, fire is extinguished, and animals stop breathing. at a time when mathematics was only a business of traders, merchants, seamen, carpenters, and surveyors, mathematician john wallis, the son of a minister, studied sections of cones [circles, ellipses, parabola, and hyperbolas] as curves of the second algebraic degree, i.e. with an exponent of two, i.e. y = (a (x squared)) + b. he also worked with negative and fractional exponents. around he invented the infinite arithmetic and introduced the symbol for infinity. he determined that the area under any curve defined by the equation y = (x to the nth power), was x to the (n+ )th power divided by n+ . he introduced the concept of the limit of a string of numbers. he wrote a treatise on algebra which was historical as well as practical. he also decoded enemy cyphers for the sovereign. some english gentlemen interested in the new scientific methods originated by galileo had meetings beginning about to discuss scientific topics. one group met at gresham college and was headed by wallis. another group was led by robert boyle, a philosopher, physicist, and chemist. they wrote in english instead of latin. these meetings later gave rise to the royal society for science. since the puritans forbade music in churches, but enjoyed it in domestic circumstances, much secular music was composed, published, and played. there were many musical clubs. the violin became very popular. solo songs were much sung. the first english opera: "the siege of rhodes" was written and performed with women on stage. writers of the time included john milton, political philosopher james harrington, poet edmund waller, thomas fuller, poet abraham cowley, and biographer issak walton. john aubrey wrote anecdotes about famous men. jeremy taylor, chaplain to charles i, wrote on theology. people still read french romances translated into english. dancing was still popular. coffee houses came into prominence as places of social discourse. the first coffee house was established in london in ; ten years later, there were coffee houses in the city. there were elegant pleasure gardens, with a fee for access. they were used for promenades and picnics. ladies and their gallants rendezvoused there. cromwell introduced the habit of port drinking to england. in , one general post offices was established with one postmaster general for all of england. no other person could have the horsing of the through-posts. it cost d. for a letter to or from miles of london and d. for one outside miles of london. the society of friends was founded by the son of a weaver. they greeted everyone as "friend" and did not bow; remove their hat, as was the custom when before the king or an earl; or otherwise show any reverence to anyone. from , they were called quakers because they trembled when religiously stirred. they reverted to the ancient "thou" and "thee" appellations. their dress was particularly simple, with no buttons, lace, ruffles, or embroidery. they hated ritual so much that they rejected baptism and communion. they did not observe the sabbath as a special day different from other days. they derided the holiness of churches. no clergy were admitted into their sect. when they met for divine worship, each rose to deliver extemporaneous inspirations of the holy ghost. women were admitted to teach the brethren and were considered proper vehicles to convey the dictates of the spirit. quakers believed that every man, in his own life, could be fully victorious over sin. they denied any clerical authority and all texts. they believed in the separation of church and state. they refused to swear to any oath, e.g. in court, or to participate in war. they refused to take off their hats to anyone but god. it was their practice to turn the other cheek when one cheek had been struck. if asked for his cloak, a quaker would give it. he never asked more for his wares than the precise sum which he was determined to accept. the quakers encouraged widows and widowers to provide for children from a first spouse when remarrying. they carefully selected masters and mistresses who wanted to take on child apprentices for their suitability for such responsibility. the education of quaker women did not decline, as it did for other women. from the fervor of their zeal, the quakers broke into churches, disturbed public worship, and harassed the clergyman and audience with railing and reproaches. when brought before a magistrate, they show no reverence but treated him as an equal. sometimes they were thrown into mad house or prisons and sometimes whipped or pilloried. they endured stoically under this suffering. mary fisher from yorkshire introduced quakerism to colonial new england. in there were separation agreements between spouses as to property, e.g. support and maintenance. cromwell had bad experiences with parliaments. the rump parliament was a remnant of the long parliament. the army and then cromwell, although a member, came to believe that its members were self- interested, preoccupied with perpetuating themselves in seats of power, and corrupt. they thought that their own hopes of reform in the law, in the church, and in public finances were being deliberately frustrated. cromwell came to doubt that it would ever give the people adequate government and protection. he started to believe that one man as chief executive could do this better. cromwell dismissed the rump parliament in . a new constitution created a puritan "parliament of saints". these men were nominated in various ways, such as by church parishes, and selected by cromwell. this one-house parliament of saints in made cromwell lord protector for life with executive power of the state, with responsibility for making peace and establishing order after a decade of civil strife and political chaos. he was to administer the government and be the chief magistrate. it also provided for triennial parliaments consisting of one house, and religious freedom for all except roman catholics and adherents of the formerly established church of england. cromwell did not tolerate the ritual of the formerly established english church nor allow any of its adherents to have any office under him. his was a purely puritan government. he did not sell offices. the parliament of saints challenged many vested interests in property such as sales of delinquents' and papists' lands. it clashed severely over the continuation of tithes to the church. it became disorderly when some declared the parliament dissolved and left. others remained in their seats. to avoid a parliamentary crisis, cromwell had soldiers close the parliament of saints and lock its doors. the people supported this action because they were dissatisfied with the state of public affairs. the next parliament that was tried was elected on a new constitutional basis of men with pounds, but these men voted to make parliament sovereign without a chief executive, thereby abolishing the protectorate. cromwell was distressed that this parliament had also voted themselves to be the sole determinors of atheism and blasphemy instead of advancing liberty of religious conscience and religious toleration as cromwell had advocated. he dissolved this parliament, declaring that it was not acting for the public good. a last parliament was also dissolved by cromwell for tending to loosen the bonds of government and thereby threatening the peace of the nation. cromwell had first ruled as a democratic leader who did not believe in force, but preferred to persuade with reason. he initially believed that people would do the right thing according to their consciences, but was disillusioned and then became autocratic. he came to rule as a military dictator. payment of taxes was enforced by distraint. after , he issued about proclamations covering public amusements, roads, finances, the condition of prisons, the imprisonment of debtors, banning of dueling and cockfighting, law reform, control of religion and education, and reorganization of the army. the singing of ballads was banned. the court of chancery was reformed by proclamation. the established church was reformed and the power to interfere with different faiths was denied to it. each parish could choose its form of service, whether presbyterian, congregational, baptist, or any other seen as fundamental by the puritans. no one was compelled to attend any particular church or to accept the discipline of any particular minister. but the book of common prayer was forbidden. there was freedom of worship for presbyterians, independents, baptists, quakers, catholics, and jews who had secretly migrated to england to avoid persecution on the continent, but not prelatists , who favored government of the church by bishops). in , cromwell placed major generals in charge of eleven newly- established provinces. as their governors, they had authority to levy troops, exact taxes imposed by the protector, disarm royalists and catholics, examine into the conduct of the clergy and schoolmasters, arrest dangerous and suspicious persons, prevent unlawful assemblies, and to enforce the existing laws against immorality and blasphemy. the only appeal was to the protector. since they were puritans, they ordered public ale houses to close as dusk, banned idlers, minstrels, and actors, forbade exercising of horses on sunday and the holding of markets on saturday as well as sunday, censored the press, and proscribed newspapers. horse races, which meetings were used for seditious purposes, were closed. theaters were closed. dancing was discontinued. organs and choirs in churches were prohibited. court masks continued because they provided soothing music. after a year, cromwell withdrew the major-generals. from this time, men of property hated the idea of a standing army. in , the officers of a new parliament modified the constitution and cromwell approved it. it was to secure liberties of the people as they never before had. under the modified constitution, there were again two houses. the commons regained its old right of exclusively deciding on the qualification of its members. parliamentary restrictions were imposed on the choice of members of the council, officers of state, and officers of the army. a fixed revenue was voted to the protector. no moneys were to be raised except by consent of parliament. liberty of worship was guaranteed to all except papists; prelatists; socinians, who denied the divinity of jesus; for those who denied the inspiration of the scriptures. liberty of conscience was secured for all. in , cromwell tried another parliament, but dissolved it because it wrangled without resolution. there was continual problem with catholics. mayors, justices and capital burgesses of towns where papists or others had caused rebellion and insurrection and plundered, robbed, pillaged, murdered and raped, were given the power in to call, assemble, train, and arm soldiers for defense. the committee of the militia of london was given authority in to search all houses and places for papists and to search for and seize any arms, ammunition, and war materials in custody of such persons. in , all papists and soldiers of fortune who had borne arms against parliament were ordered to depart from within twenty miles of london and westminster or be imprisoned as traitors. in convicted papists and people marrying convicted papists were required to take an oath renouncing the pope and catholic church or lose two-thirds of their lands and estate, retaining their house on the remaining one-third. if one went to mass in an ambassador's house, the fine was pounds and imprisonment for six months, one half going to the informer. in all householders in london and westminster had to give a list of persons lodging in their house, and the horses and arms there. but the laws against catholics practicing their religion were not rigorously enforced, nor were those against adherents of the formerly established church of england. after cromwell died, the people demanded the return of a genuine and free parliament. the old constitution was restored and a new house of commons was elected. it called charles ii to return to be king if he promised religious freedom and backpay to the army, which had not recently been paid. when cromwell's puritan soldiers were disbanded, they did not drift into thievery as royalists soldiers had before, but took up honest work such as baker, mason, brewer, baker, or haberdasher. puritanism now made itself felt not by the sword, but in literature and politics. it affected the character of the english, who tend to be stoics, and imbued capitalists with a hard-working attitude. the law after the civil wars, the law against enclosure was not enforced. what was passed in parliament in cromwell's time were called statutes, but after cromwell's time, these statutes were not recognized as legitimate. "whereas public sports do not well agree with public calamities, not public stage-plays with the seasons of humiliation, this being an exercise of sad and pious solemnity, and the other being spectacles of pleasure, too commonly expressing lascivious mirth and levity ... public stage plays shall cease, and be forborne instead of which are recommended to the people of this land the profitable and seasonable considerations of repentance, reconciliation, and peace with god, ..." no book or pamphlet may be printed, bound, stitched, or sold or imported unless licensed and entered into the register book of the company of stationers. officials of this company and of parliament may search all places which they shall think meet for all unlicensed printing presses and all suspected printing houses, warehouses, and shops and other places for unlicensed books and pamphlets and papers and seize them and apprehend all authors, printers, and other involved people and bring them before parliament or the committee on examinations for punishment. justices of the peace and other officers may order doors and locks broken for this purpose. the fine is ten pounds for authors, five pounds for printers, two pounds for booksellers, and one pound for buyers who conceal a book bought. one half of each fine shall go to the person who discovers and prosecutes the offender, and the other half shall go to the poor. this law suppressed royalist newspapers but was enforced only with great difficulty. all shall observe sunday and days of thanksgiving in their "duties of piety and true religion publicly and privately" and none may sell wares or goods, including fruit or herbs upon pain of forfeiture of such. none may, without reasonable cause, travel, carry burdens, or do any worldly labors or work whatsoever or pay a fine of s. this work shall include grinding grain, fulling in mills, burning turf or earth, gathering taxes, melting wax for candles, brewing, baking, butchering cattle, tailors fitting or carrying clothes, barbers trimming hair, being present at fairs or markets, or washing, whiting, or drying clothes. nor may any one maintain or be present at wrestlings, shooting, bowling, ringing of bells for pleasure or pastime, masks, wake, church-ale, dancing, games, sport or, for those over , forfeit s., and for those having care or education of a child under , d. maypoles, a "heathenish vanity, generally abused to superstition and wickedness", shall be taken down by officers or else forfeit s. per week. if any offender can't pay his fine, he shall be put in the stocks for three hours. however meat maybe dressed in private families, and victual sold in inns and victualing houses in a moderate way, and milk sold before a.m. or after p.m. persons of the trinity, angels, or saints shall be demolished. altar and communion tables must not be raised but leveled. there may be no copes, surplices, superstitious vestments, or holy water fonts. there may be no crosses, crucifixes, pictures of the trinity, angels or saints on plates. all organs must be taken away. the fine for using the book of common prayer is five pounds for the first offense, ten pounds for the second offense, and one year imprisonment without bail for the third offense. the penalty for writing or preaching against the directory for public worship is five to fifty pounds. blasphemies and heresies such as teaching or writing or printing that there is no god, that god is not almighty, that jesus was not divine, that the resurrection of jesus did not occur, that the bible is not the word of god, or that there is no judgment day after death, are felony without benefit of clergy. if such an offender recants, he shall stay in gaol until he obtains two sureties. if he offends again after recantation, it is felony without benefit of clergy. in adultery was declared to be a felony, except for a wife whose husband had been beyond the seas for three years or had been reputed to be dead. incest was also declared to be a felony. it was defined as marrying or having carnal knowledge of one's grandparent, parent, sibling, mother's brother or sister, father's wife, mother's husband, son's wife, daughter's husband, wife's mother or daughter, or husband's father or son. fornication was given a punishment of three months imprisonment and until security was obtained for one year for good behavior. it was defined as carnal knowledge of a virgin, unmarried woman, or widow. a common bawd or one keeping a brothel or bawdy house was to be whipped, set in the pillory, marked in the forehead by a hot iron with the letter: b, and then imprisoned for three years without bail and until there were sureties for good behavior for life. the second offense was felony without benefit of clergy. there was to be no corruption of the blood. however, juries were reluctant to convict for adultery and incest. there shall be no profane swearing or cursing of forfeit by a lord s., a baronet or knight s., an esquire s., a gentleman s. d., and all others s. d. there is a double fine for the second offense. for the tenth offense, the offender shall be bound by sureties for good behavior for three years. a person equating himself or another with god or not believing in god shall be imprisoned for six months without bail. for the second offense, he shall be banished from the nation. no longer shall people be punished for nonattendance at church on sunday or days of thanksgiving, but may be at some other place of prayer, preaching, reading, or the scriptures. hawkers and ballad singers have been libelous, so are to be whipped as common rogues and then dismissed. also, their ballads and pamphlets are to be confiscated. vagrant, idle, loose, dissolute and disorderly persons and fiddlers in inns, alehouses, and taverns are to be punished as rogues, vagabonds, and sturdy beggars, that is, whipped. in , treason against parliament was defined as writing, printing, or declaring that the government is tyrannical, usurped, or unlawful; or that parliament is not the supreme authority of the nation; or plot, contrive, or endeavor to stir up or raise force against the government. attainder for such would not work corruption of the blood. treason to the protector was defined the same as it was to the king. army deserters are to be corporally punished or executed. fellable wood and underwood, but no timber trees, may be cut within miles of london because fuel is needed, especially by the poor. this will be supervised by overseers appointed by parliament. no one may import foreign hats or hatbands to relieve that industry in england. as of , certain food could not be exported when the prices of such exceeded a stated amount. for instance, pounds for a gallon barrel of beef, d. for a pound of bacon, pounds and s. for a gallon barrel of butter, and s. for pounds of rye, pease, or beans. the customs for such items was more for foreigners than for natives, for instance s. for natives and s. for foreigners for a barrel of beef. butter for sale must not be corrupt and be properly weighed. one must obtain a license to buy wheat or other grain and put it to sale in meal or flour or else forfeit three times the value. all books of the law, writs, pleadings, and patents shall be in english or else forfeit pounds. no deer may be killed or else forfeit pounds, half to the informer and half to the poor. interest may not exceed pounds for a loan of pounds yearly as of . no goods are to be imported from america, asia, or africa except in english ships or else forfeit all goods and the ship, one half of which goes to the one who seizes the goods and prosecutes. none may be imported from europe except in english ships or ships from the country of origin of the goods. no salt fish may be imported or exported but in english vessels. there is a pound reward for discovery of highwaymen and burglars or persons who break and enter into houses and there use violence. no cart or wagon or carriage on the road may be drawn by more than five horses or six oxen and a horse except for military vehicles. notice of intended marriages shall be published once a week for three weeks in a public meeting place called church or a public market place next to church. exceptions to the marriage shall be noted by the register and considered by the justice of the peace before the marriage is performed. the words used shall be: "...promise to be unto thee a loving and faithful husband..." and "promise to be unto thee a loving, faithful, and obedient wife...". there shall be no cock-fighting because it disturbs the peace and usually is accompanied by gaming, drinking, swearing, and quarreling. anyone challenging or accepting a challenge to duel shall be imprisoned for six months without bail, and must acquire two sureties for a year. anyone fighting a duel in which death ensues, shall be banished for life. horse races were forbidden in for six months to discourage mischievous plots and designs by enemies of the state. the penalty was forfeiting the horse. attendees were to be brought to justice. as of , a house or building built within ten miles of the walls of the city of london not having at least four acres had to pay a fine of one year's rent. all houses within london or westminster or the suburbs must be brick or stone, and built straight up without protruding into the street or else forfeit pounds. as of persons living extravagantly without visible estate or calling may be made by justices of the peace to acquire sureties for good behavior or go to gaol. they would also be sent to the house of correction to work for three months for the first offense and for a time specified by the justice of the peace for the second offense. anyone winning at betting or playing at cards, dice, tennis, and horse races shall forfeit double his winnings. excluded from pardon were buggery with man [sodomy] or animal [bestiality], carnal ravishment of women, and bigamy. husbands were responsible for their wives' oaths and fathers for their daughters'. drunkenness was much punished. judicial procedure the protector is the supreme magistrate of the commonwealth, with power to pardon all crimes, except murder and treason. parliament was no longer a court. use of the torture was proscribed in . in , the justices were given a salary of , pounds and forbidden to take fees or rewards. they also got tenure, thus freeing them from government pressure. now civil justice was honestly dispensed and justices were learned and honest. the jurisdiction of admiralty court was defined to include: ships and vessels with tackle, apparel and furniture thereof; repairing, victualing, and furnishing provisions of ships and vessels for sea; all cases of bottomry [ship-owner indemnified if the vessel were lost, but paid over a substantial share of the profits if it reached its destination safely], contracts beyond the seas concerning shipping or navigation; charter, parties, contracts for freight; bills of lading; mariners wages; damage of goods on board ships; and damage by one ship to another including by anchors or want of laying buoys. it did not include contracts between merchants. military tenure was abolished in . chapter the times: - the monarchy was restored and charles ii came to the throne. the episcopacy of the bishops and the book of common prayer were restored. this book retained all its ceremonies, despite opposition by the presbyterians. the confiscated royalist, church, and crown lands were ordered to be restored, and most were. charles ii was presented with the traditional rights of choosing his own privy council, ministers of state, and justices; making foreign policy; controlling the armed forces; and approving statutes. he was also presented with the power to call and dismiss parliament, but later, in , a statute required that parliament be held at least once every three years, to avoid royal schemes of non-parliamentary government. the house of lords was reestablished and there were again bishops in it, though fewer than before - about / instead of about / . there were peers for the next century. the house of commons was elected in the usual way, but without a king's writ. the commons was composed mostly of royalist established church members. its leaders were important members of the king's privy council. the feudal tenures of the crown, such as knights' service, were converted into free socage. they were discharged of homage, reliefs, escuage, and aids. charles relinquished purveyance, wardships, and forfeitures of marriage. in return, parliament granted him a fixed yearly income of , pounds from excise tax on beer, cider, and tea. several hundreds of dissenter ministers and school teachers were ejected from their positions, but later those who were not baptists were returned by statute of parliament because baptists did not believe in an established church. charles ii was an easygoing and kindly man and hard to ruffle. he had a weariness in the folly of men and a cynical disbelief in human virtue. his wit and great sense of humor softened many a potentially tense situation. his restoration to the throne brought in a time of enjoyment of life in reaction to the puritanism of before. at his succession, the elected parliament was oriented toward royalty and the established church. he was voted an income of , , pounds a year. he also sold many of the last crown lands. but he always had great debts, which he described as a "desperate but not serious" situation. this was in part due to his generous maintenance of several successive mistresses and more than about a dozen illegitimate children. his entourage also included physicians, surgeons, a librarian, a poet laureate, chaplains, painters, an historiographer, musicians, a royal composer, and an astronomer. charles even joked on his deathbed that "i am sorry gentlemen, for being such an unconscionable time a-dying." the day of charles ii's restoration and birthday was designated as a day of thanksgiving when all were to participate in prayers and the singing of psalms at some church or other suitable public place. charles initiated the return of sunday afternoon wrestling, archery, music, and dancing. theaters reopened with actresses playing women's parts, an audience only in front of the stage instead of around it, a drop curtain, and painted two-dimensional scenery. actresses were allowed pursuant to royal proclamation so that plays should become "useful and instructive representations of human life" rather than "harmless delights". charles went to plays regularly. actresses were assumed to be mistresses of patrons in return for their jobs, but one fourth were actually chaste women married to actors. comedies were the preferred plays. courtesans were sympathetically and even admirably treated in plays, which mocked all restraints and glorified immorality with the exception of pornography, which was banned. bad actors were hissed off the stage. henry purcell wrote religious music for churches, ceremonial music for the english court, and theater music for english opera. opera made music a vehicle for human emotions. the gentry sang to the lute and danced to string instruments. many owned and played musical instruments. humble people had folksongs and instruments like the pipe and tabor for dancing. singing in parts was popular in town and country. in john banister started the first regular series of public concerts in his house. there were lovely formal gardens in which to walk, to see fireworks, and to buy the new ice cream. charles did much garden and park planning and let the public enjoy the royal st. james park. he loved hunting too and had the royal forests replenished with deer after poaching during the cromwell era had greatly reduced their numbers. charles ii introduced sailing and yacht racing for pleasure. he also participated in and promoted horse racing. the breeding of thoroughbred horses began with breeding to arab mares. gelding horses were now preferred over stallions. there were trotters, cart horses, and some "fast" race horses. boxing (with no gloves nor ring) was a national sport. ice skating with iron blades was popular. valentine's day was celebrated. italian puppet shows played in london. dress returned to elaborateness. gentlemen wore cavalier-style long wigs with curls, despite the church's dislike of wigs. this could hide the short hair of a former puritan roundhead. in , charles introduced a new mode of inexpensive court dress which was made entirely from english textiles. this gave rise to gentlemen's weskits to below the knee with a coat of the same length and full sleeves. stockings and shoes replaced the long fitted boots. charles set a court tradition of men wearing a scarf tied around the neck. ladies often wore their hair in masses of ringlets with little corkscrew curls on each side of their heads, and later piled their hair up elaborately on their heads. they wore satin or silk dresses fitted at the waist with a pointed bodice, and full skirt. the shoulder line was low and the sleeves full and open at the front with fastenings of jeweled clasps. the only fast colors were reds, blues, purple, and yellow, but not green. they kept their hands warm in muffs. women wore perfume, rouge, and face patches. some women put on a lot of make-up. many men dressed effeminately with rouge, face patches, heavily scented clothing, muffs, and many ribbons of many colors. the facial beauty patches were in shapes such as stars, crescent moons, and hearts; they diverted attention from the common smallpox scars. there were oxford shoes, which laced up the front through eyelets. the members of the house of commons dressed like the gentry and assumed their manners. there was exaggeration in all complimentary and ceremonial language. the gentry were beginning to be thought of as a "squirearchy". they owned about half the land of the country. the population according to class was as follows: n: number of households. t: titles, degrees. social ranks, h: household size, and y: household yearly income in pounds. ___n_______________t______________________________s___________y__ temporal lords , spiritual lords , baronets knights , esquires , gentlemen , persons in greater offices and places , persons in lesser offices and places , eminent merchants and traders by sea , lesser merchants and traders by sea , persons in the law , eminent clergymen , lesser clergymen , freeholders of the better sort , freeholders of the lesser sort . , farmers . , persons in liberal arts and sciences , shopkeepers and tradesmen . , artisans and handicrafts , naval officers , military officers , common seamen , laboring people and out-servants . , cottagers and paupers . . , common soldiers , vagrants, as gypsies, thieves, beggars as can be seen, agriculture is still the most common occupation. great houses now had a central dining chamber for dining, with sets of suites, usually for couples, around it. each suite had an ante-chamber and/or drawing room, and then a bedchamber, off of which there was a servant's room and a closet [cabinet]. no longer did personal servants bed down in the drawing room or outside their master's door or in a truckle bed at his feet. the servant's room was connected to a back staircase for use by servants. secret guests also used it. the csbinet room was the innermost sanctum for privacy and gave its name to the later cabinet of the government. there were fewer servants and they were of a lower social status than before. they were often sons of merchants, clergymen, and army officers. gentlemen no longer advanced by service to a great man, but instead through grammar school and university education, commerce, the law, or the armed services. this change came about because the state now maintained reasonable law and order. there were more female servants, who were paid less to cook and to clean as well as do laundry and nursing. servants were kept more in the background, preferably out of sight. the elaborate ceremonial ritual with sewer, carver, and cupbearer was gone. a butler replaced the yeomen of the buttery, ewery, and pantry, and footmen began to wait on the table at which the lord, his lady, and other couples sat. servants no longer had meals in the hall, which now had a grand staircase up to the dining chamber. the highest servants, the officers: clerk of the kitchen, clerk of the check [comptroller], head cook, butler, and groom of the chambers, and female housekeeper ate in the gentleman-of the-horse's room, although at a separate table. the kitchen staff ate in the kitchen. the footmen, underbutler, porters, coachmen, grooms, stable-boys, gardeners, maids ate in a servants' room. the steward was no longer the chief household officer, but had a room near the kitchen. the bulk of the servants slept in the basement or subordinate wings of the house. great houses of nobles had more rooms, such as a chapel, library, parlors, dressings rooms, and galleries; there was a variety of architectural floor plans. the structure of a noble household of an earl was as follows: the chief official was the receiver general. he had financial responsibility for the household and prepared accounts for the household and for the tenants' estates. these were checked by an auditor. the receiver general was often the son of a country gentleman and had a salary of pounds raised to pounds with longevity. he had a servant and an assistant. if married, he had a house on the property. there was perhaps an attorney on retainer who were paid for a certain number of hours per week or month. the gentleman of the privy purse kept the accounts of the family and bought them apparel and toiletries. he was in close personal attendance upon the earl. his salary was pounds a year. besides the receiver general and the gentleman of the chamber, the tutor and chaplain had the closest personal contact with the family. the lady had a gentlewoman with a maid servant. the receiver general supervised most of the staff. there was a steward of pounds a year. he supervised a clerk of the kitchen and a house bailiff of pounds a year. the bailiff had responsibility for the produce of the estate, e.g. the gardens, the deer park, and the fish ponds. under the clerk of the kitchen was the cook man and kitchen boys, the latter of whom were clothed and fed, but not paid. the steward also supervised the pound yearly porters, who kept the gates; the watchmen outside; and the head housekeeper, usually a woman of to pounds yearly. she supervised the laundry maid and general maids, who spent much of their time sewing. the steward was also responsible for the wine cellar. a dozen footmen belonged partly to the house and partly to the stables and received to pounds yearly. they waited on the lord and lady in the house and accompanied them in travels and did errands for them. the gentleman of the horse supervised the stables, coach, dogs, kennels, and pound yearly huntsman. boy pages also worked partly in the house and partly in the stables. they were clothed and fed, but not paid. the head gardener received pounds for tending the flowers, vegetables, and fruit trees. he had casual workers as needed to assist him. the steward was also responsible for the london house. here there was a housekeeper, a watchman, and a pound a year gardener, all there permanently. when the lord was there, bargemen were employed for his barge. the salaries for the family estate totaled about pounds a year. sometimes married sons' or daughters' families stayed for months at the family estate; then they would pay for their part of the food. well-to-do people drank imported tea and coffee, sometimes from porcelain ware, and usually after dinner or supper. most tea leaves were brewed first for the family and guests and a second time for the servants; then they were given to the servants' relatives or friends. queen mary encouraged the fashion of collecting chinese porcelain. the rich had red or black and gilt lacquered cabinets and cupboards. oak gave way to walnut, with its variegated surfaces. there were grandfather clocks. some fireplaces now had cast-iron firebacks. stuffing began to be upholstered to woodwork benches. chairs were taller in the back. ladies did needlework to cover them and also made patchwork quilts. cane seats came into fashion. from the spring of to the end of there was a great plague, mostly in london. it was the last and worst plague since the black death of . it lasted over a year and about one-third died from it. households with a plague victim were walled up with its residents inside to reduce contagion, and then marked with a red cross. church bells tolling their requiems clanged in ceaseless discord. the mournful cry "bring out your dead" echoed in deserted streets. at night groups of people shoveled the corpses into open graves. to prepare for this revolting task, they often first became drunk out of their senses. people acquired wild beliefs in hope of avoiding the plague. for instance, at one time it was thought that syphilis would prevent it, so maddened hordes stormed the brothels. at another time, it was rumored that the plague could be burned out of the air, and all one day bonfires blazed outside every door and people sweltered in the heat. other localities posted sentries on the road to keep londoners out of their areas to prevent the plague from spreading there. since sneezing was thought to be the first sign of a person getting the plague, it became common to ask god to bless a person who sneezed. in london, statistics were collected on the number of plague victims and their places of death to try to determine the cause of the plague by correlation, a new method. this was a natural sequent to merchant john gaunt's book "natural and political observations made upon the bills of mortality", which compiled yearly vital statistics from which to analyze, for instance, causes of death due to particular diseases. it reached conclusions such as that fall was the most unhealthy season; females had longer life spans than males; and infant mortality was very high. in a fire destroyed three-fourths of the city of london. the blazing buildings were so hot that people with leather buckets of water, hand squirts, and manually operated water-pumping machines could not get near them. there was a lot of noise from falling buildings. panic and desperation were widespread. there was a lot of crying out and running about distractedly. people saved some of their possessions by burying them or removing them from the fire's path as they moved to different lodgings. the streets were full of carts piled high with furniture and merchandise. the thames river was thick with heavily laden barges. melting lead from st. paul's church ran down the streets in a stream. the tower of london, upwind of the fire, was saved by blowing up surrounding buildings. eventually the wind abated and the fire was put out. a fire court with royal justices was created to offer settlement terms about property that were free, fair, fast, and final. army tents and supplies, and soup kitchens sustained the citizens in the fields. after the fire, buildings had to be brick or stone rather than wood, except for doors and windows. also, more plaster and tile was used. all roofs had to be of tile or slate, rather than thatch. there was a general use of tile for roofing. about , came slate for roofings. all buildings had to be at least two stories high, with flat facades rather than overhanging upper floors. they had to have wide brick walls around them to avoid the spread of fires. many streets, squares, and alleys were professionally planned, after the example of inigo jones, who had continued his town planning with lincoln's inn field's open square surrounded by houses with iron balconies. another example was leiscester square. main streets had to be wide enough to stop a fire. the street selling that had caused so much congestion was removed to new market places. the massive rebuilding of london ended the monopoly of the building trade claimed by the mason's company. astronomer and geometrician christopher wren designed and built a new st. paul's cathedral and many churches in london, thus becoming england's first architect. he worked up from a square base through all sorts of shapes to a circular double dome on top. the fire put an end to whitehall as a royal residence and st. james palace was used instead. but at least one fire hazard remained: the practice of lighting new fires by taking buckets of hot coals from one room or house to another. this was faster than the several minutes it took to use a tinder box to start a flame, i.e. striking a piece of flint upon a piece of steel making a spark which was dropped onto tinder and then blown upon. matches were invented in this period, but expensive and unsafe. nicholas barbon began fire insurance in the s. if fire broke out on an insured premises, the insurance company's firemen would come with leather buckets and grappling irons, and later small hand pumps. barbon also redeveloped many districts in london, tearing down old buildings without hesitation. he started the system of selling off leases to individual builders, who hoped to recover their building costs by selling their houses before they were completed and before substantial payments on the lease became due. entrepreneurial master-builders subcontracted work to craftsmen and took a large profit or a large loss and debt. aristocrats bought large parcels of land on which they built their own mansions surrounded by lots to be rented to building contractors and speculators like barbon. the houses built on these lots were sold and the underlying land rented. these rentals of land made the mansions self-supporting. barbon built rows of identical townhouses. sometimes houses were built on all the lots around a square, which had gardens reserved for the use of those who lived on the square. most of the new building was beyond the old city walls. marine insurance for storms, shipwreck, piracy, mutiny, and enemy action was also initiated. before the fire, e.g. in tudor times, the writing of risks had been carried on as a sideline by merchants, bankers, and even money lenders in their private offices and was a private transaction between individuals. london was residential and commercial. around the outside were tenements of the poor. from to , london's population had risen tenfold, while the nation's had only doubled. london went from % to % of the nation's population. in , london's population was about half a million. after , london's population grew at the same rate as the nation's. the first directory of addresses in london was published in . business began to follow the clock more strictly and many people thought of their watches as a necessity. london coffee houses, which also sold wine, liquors, and meals, became specialty meeting places. they were quieter and cheaper than taverns; for a penny, one could sip a cup of coffee by the fire, read the newspapers, and engage in conversation. merchants, stock jobbers, politician groups, soldiers, doctors and clergymen, scholars, and literary men all had special coffee house meeting places. notices and letters of general interest were posted therein. many merchants, brokers, and underwriters, especially those whose houses had been burned in the fire, conducted their business at their coffee house and used it as their business address. men in marine insurance and shipping met at lloyd's coffeehouse, which was run by edward lloyd who established it for this purpose in . lloyd provided reliable shipping news with a network of correspondents in the principal ports at home and on the continent and circulated a handwritten sheet of lists of vessels and their latest movements at his coffeehouse. the patrons cheered safe arrivals and shared their grief over ships lost. they insured their own risks at one moment and underwrote those of their friends the next. auctions of goods and of ships and ship materials which had been advertised in the newspapers were conducted from a pulpit in the coffeehouse. french wine was consumed less because of heavy taxation and spirits and beer were consumed more. the streets were alive with taverns, coffee houses, eating houses, and hackney coaches past p.m. at night. coffee houses were suppressed by royal proclamation in because "malicious and scandalous reports" defaming his majesty's government were spread there, which disturbed the peace and quiet of the realm. but this provoked such an uproar that it was reduced to a responsibility of the owner to prevent scandalous papers and libels from being read and hindering any declarations any false and scandalous reports against the government or its ministers. london air was filthy with smoke from coal burning. in the streets were lit with improved lights which combined oil lamps with lenses and reflectors. groups of householders combined to hire lighting contractors to fulfill their statutory responsibility to hang candles or lights in some part of their houses near the street to light it for passengers until : p.m., and later to midnight. in a monopoly was sold to one lighting company. in a body of paid watchmen was established in london. an office of magistrate was created and filled with tradesmen and craftsmen, who could make a living from the fines and fees. this was to supplement the unpaid justices of the peace. the public was encouraged to assist in crime prevention, such as being witnesses, but most policing was left to the parishes. crowds punished those who transgressed community moral standards, threatened their economic or social interests, or offended their religious or patriotic beliefs. often a crowd would react before the call of "stop thief" or the hue and cry from the local constable. pickpockets would be drenched under a pump. cheats would be beaten up. dishonest shops and brothels would be ransacked or destroyed. the most common targets were promiscuous women and pregnant servants. there were many highway robberies and mob actions in london. mobs in the thousands would turn out against the catholics, especially at times of unemployment and trade depression. working people still saw demonstrations and violence as the best way to achieve their economic goals, since strikes didn't work. for example, the silk workers used street violence to get protective legislation against imports and mechanization in . the manufacture of silk material had been brought to england by french workers driven from france. in , three thousand london silk weavers demonstrated outside the commons and east india house against the importation of raw silks by the east india co., and a couple months later, they attacked a house in the city owned by a gentleman of the company. in , heavy duties were imposed on the import of indian silks and wearing of indian silks was prohibited by statute. sometimes mobs would break open the prisons to release fellow rioters or take action against strike breakers or informers. parish constables elected by their neighbors could not control the mobs and stayed within their parishes. dueling was still prevalent, even though against the law. in london and westminster, it was hard to enforce the requirement that inhabitants keep the street in front of their house clean and store the filth until the daily raker or scavenger came with cart and dung pot. so a commission was made responsible for paving and keeping clean the streets, making and repairing vaults, sewers, drains, and gutters, and removing encroachments. it compensated those with encroachments of over years. it assessed inhabitants of such streets d. per square yard from the front of their building to the center of the street. women continued to empty their pails and pans outside their doors and did their washing on stools in the streets. there was a penalty of d. for throwing filth in front of one's house, and d. for throwing it elsewhere in the streets. scavengers and rakers could lodge their coal ashes, dust, dirt, and other filth in such vacant public places as the commission deemed convenient for accommodating country carts returning otherwise empty after their loads were sold. however, this system did not work because people would not pay their assessments. so there was a return to the former system of requiring citizens to sweep and clean the streets in front of their buildings twice a week and keep the filth until a scavenger or raker came. the penalty for not doing so was s. d., later raised to s. any one throwing coal ashes, dust, dirt, rubbish, or dung onto the streets or lanes incurred a fine of s. there was a fine of s. for hooping or washing any pipes or barrels in any lane or open passage or repairing coaches, sawing wood, or chiseling stones in the streets. pigs kept in or about one's house had to be forfeited. one way that people traveled was to be carried in sedan chairs held up by two horizontal poles with one man at the front ends and another man in back. there were so many sedan chairs and coaches for hire in london that the watermen lost business. all hackney coaches in london or westminster were required to be licensed and marked with their owner's distinctive mark so that complaints could be made. their maximum rate was s. for a hour day, and d. for the first hour and d. for every hour thereafter. licensed coachmen were not allowed to practice any other trade. the coaches paid the commission pounds yearly. hay sold along the road brought d. per load, and straw d. per load, to the commission. there had to by paid d. for every cart load of hay sold at the hay market and d. for every cart of straw, to go towards paving and repairing the hay market street. overall, agriculture improved. fields that would have been left fallow were planted with new crops which restored indispensable chemical elements to the soil. at the same time, they supplied winter food for stock. the size and weight of animals for slaughter grew. there was so much stock breeding that it was more economical for a family to buy meat, milk, and eggs, than to maintain its own animals. there was an explosion in the growing of beans, peas, lettuce, asparagus, artichokes, and clover. the demand for food in london and other urban areas made enclosure for crop cultivation even more profitable than for sheep grazing. the government made no more attempts to curtail the enclosure of farm lands. the number of enclosures grew because copyholders were not successful in obtaining the legal security of tenure. but most land was not enclosed. in in the county of essex, the wages for mowing one acre of grass were s. d.; for reaping, shearing, binding one acre of wheat s.; and for threshing a quarter of wheat or rye s. wives participated with their husbands in general agricultural chores and did the dairy work including making cheese. every householder kept chickens because egg production was cheap, their market price being only s. for a hundred. wives also took care of the gardening work and traditionally kept for their own the cash that came in from garden, dairy, and poultry products. a wife made jellies and preserves when the fruit trees, bushes, and vines were bearing. imported sugar enabled fruit to be preserved as jam in jars sealed with a layer of mutton fat to make them airtight. she was likely to concoct medications from her herbs. meat had to be smoked or salted when there was not enough fodder to keep animals alive through the winter. she saw to it that the soap was boiled and the candles molded. she cooked the daily meals, did the washing, produced cloth for the family's use, and sewed the family's clothing. women had less work and lower pay than men. since most cottages had a spinning wheel, spinning work was readily available to wives. in the s, a female weaver or spinner was paid - d. per day. a domestic servant, who was usually female, was paid - s. a year. men in the trades objected to competition from lower-paid women. aristocratic ladies actively managed their family's household and estates. the only work available to a high middle- class woman who was waiting to get married was to be a governess in another household or a lady-in-waiting to a gentlewoman. children often worked; this was recommended so that they were under the direct supervision of their parents rather than getting into mischief in the village. the mother typically mingled severity with gentleness, but the father did not dare to err on the side of leniency. discipline was by whipping. children were treated as little adults. the lack of a conception of childhood innocence even extended to the practice of adults to tell bawdy jokes in their presence or play with their children's genitals. about , the royal society of london for the promotion of natural knowledge was founded by charles ii, who became its patron. it was formed from discussion groups of the new experimental philosophy. it included the baconians formerly at oxford and cambridge, who were ejected at the restoration, and a group of gresham professors of geometry and astronomy. the royal society met at gresham college. its goal was to compare ideas in mathematics and science and identify specific aims of science. it published scientific reports to make its findings generally known. this was a great improvement over the private correspondence among scientists, which was limited by the use of various languages. charles himself had his own laboratory and dabbled in chemistry and anatomy. similar societies were formed in many places in the world. theologicians warned that scientific research was dangerous. but it's advances improved agriculture, manufactures, medicine, surgery, navigation, naval architecture, gunnery, and engineering. issac newton was a genius, who in his childhood designed and built model windmills, water wheels, water clocks, sundials, and kites. he came from a family which had risen from the yeomen ranks to the gentry. for a few years after graduating from cambridge university in , he secluded himself in the countryside to study. here, using the work of john wallis, he formulated the binomial theorem that expands (a+b) raised to the nth exponent power, where n is an integer. he also worked with numbers that had exponents that were fractions, unending decimals, or negative numbers. certain patterns of numbers, such as the sum of doubling each number in a series as in: + + + +...never terminates; the series is infinite. he then developed the notion of a number being the limit of the summation of an infinite converging series of a pattern of numbers, such as the limit of +( / )+( / )+( / )...= . by considering the state of motion of a mass-point in an infinitely short time under the influence of an external force, he developed rules for finding areas under algebraic curves [integration], such as the hyperbola, and finding tangents to algebraic curves [differentiation], which he recognized as inverse processes. that is, differentiating the integral of a function results in a return to that function. newton discovered that colors arose from the separation, rather than a modification, of white light, that is natural sunlight. he did this using a prism to dissect the white light into its spectrum of constituent colors and then using a prism and lens to recombine the colors to reconstitute white light. the spectrum was the same as that of a rainbow. he determined the angle of refraction of each color by beaming white light through a prism, and then through a hole in a board which isolated one color, to another prism. when he discovered that all colors reflect from a mirror at the same angle, he invented and built the reflecting telescope, which used a parabolic concave mirror and a flat mirror instead of a convex lens, thereby eliminating the distortions and rainbow coloring around the edges that resulted from the refraction of different colors at different angles. he deemed a ray of light to consist of a rapidly moving stream of atomic particles, rather than robert hooke's pulses or christian huygens' waves, because shadows showed a sharp boundary between the light and the absence of light. he reasoned that if light was made up of pulses or waves, it could spread around obstacles or corners as sound seemed to do. he approximated the speed of sound by timing echoes in corridors of various lengths. newton was methodical and combined the inductive and deductive methods of inquiry, first making observations, and then generalizing them into a theory, and finally deducing consequences from the theory which could be tested by experimentation. this was the first clear expression of the basis of the "scientific method". he carried mathematization of data from experiments as far as possible. newton theorized that the same gravity force that pulled an apple down from a tree extended out to the moon to hold it in its orbit around the earth. he saw a connection between these movements by imagining a cannon on a mountain shooting a series of cannonballs parallel to the earth's surface. the first shot has only a tiny charge of explosive, and the cannonball barely makes it out of the muzzle before falling to the ground. the second shot is propelled by a larger charge, and follows a parabolic arc as it falls. the next shots, fired with increasingly more propellant, eventually disappear over the horizon as they fall. lastly, with enough gunpowder, a speeding cannonball would completely circle the earth without hitting it. by extrapolating from these ever faster projectiles, he opined that the moon was held in its orbit by the same earth force that operated on the projectiles. he correlated the moon's orbit with the measured acceleration of gravity on the surface of the earth. he put various substances with different masses and weights into the shell of a pendulum and observed that the pendulum had the same period [time for one oscillation] and fell at the same rate as free-falling objects. then he formulated the idea that the ultimate agent of nature was a force acting between bodies rather than a moving body itself. gravity did not act in proportion to the surfaces of bodies, but in proportion to quantity of matter. gravity penetrated to the very center of all bodies without diminution by the body. gravity's force extended to immense distances and decreased in exact proportion to the square of the distance. newton opined that an object moves because of external forces on it rather than by forces internal to the object. these are his three laws of motion. ) he connected the concepts of force and acceleration with a new concept, that of mass. mass is a quantity intrinsic to an object that determines how it responds to forces, such as the force of gravity. the greater the mass of a body, the stronger the force of gravity on it, and the more difficult it is to get it moving. he found that the acceleration of a body by a force is inversely proportional to its mass, and formulated the equation that force equals mass multiplied by acceleration. so if a force acts on a planet, it produces a change in velocity that is proportional to the force and in the same direction as the force. ) his law of inertia is that any body, persists in its state of rest or of uniform motion in a straight line, unless affected by an outside force. ) his next law is that when a body a exerts a force on a body b, then b also exerts a force on a which is equal in amount but opposite in direction. this means that forces that operate between different parts of a planet produce no net force upon the whole planet, so that the mass of a planet can be treated as if it is concentrated at a point. his law of gravitation explains how the whole universe is held together. this law holds that every object in the universe attracts every other object with a single gravitational force that is directly proportional to the product of their masses and inversely proportional to the square of the distance between their centers. newton had at first accepted the cartesian system of celestial vortices of aether that swirled the planets and comets around their orbits. he determined that kepler's law that areas were swept out in equal times implied that gravity acts in the direction of a line between the planet and the sun. the gross features of the universe and kepler's observations led to his recognition that the attraction between two bodies decreases inversely in proportion to the square of the distance between them. only one kind of force would satisfy kepler's requirement that the sun was a focus of an ellipse and still be consistent with kepler's law that the square of a planet's period was proportional to the cube of its mean distance from the sun; that was the inverse square law. then he came to accept robert hooke's hypothesis that planets are kept in their orbits by the combination of an attractive power of the sun and of motion in a straight line that was tangential to their orbits. from astronomical data, he calculated this centripetal acceleration of each planet towards the sun to be proportional to the inverse square of its distance from the sun. he also calculated the "centrifugal" accelerations in a straight line. his experiments showed that the centripetal force in a circular orbit was equal to the mass of the body multiplied by the square of its velocity, all divided by the radius of the circular path. he used calculus and differential equations to determine centripetal forces of elliptical orbits, where the distance from the sun, the velocity, and the acceleration were variables. newton showed that his single gravitational force could account for the way free-falling objects descend to the ground, the parabolic trajectory of projectiles, the path of the moon in its orbit around the earth, the course of the tides every twelve hours, the lower densities of the earth's atmosphere at greater heights, the paths of jupiter's moons, the paths of comets, and the elliptical paths of the planets in their orbits around the sun. this determination discredited the previous belief that invisible angels moved the planets. newton proved from his law of gravitation and his three laws of motion the truth of kepler's laws of elliptical planetary motion. newton demonstrated from data collected from the comet of that comets moved according to his law of gravitation. he showed that the path of a body traveling within the gravitational force of the sun is a circle, an ellipse, a parabola, or a hyperbola. he used the concept of a common center of gravity as a reference point for other motions. the fact that the center of gravity of the solar system was within the body of the sun verified that the sun was indeed at the center of the solar system. newton deduced that the tides were created by the rotation of the earth with bulges of water on the earth's surfaces that were closest and farthest from the moon. the moon "pulled" the water nearest to it with a greater force than average. it "pulled" the water farthest from it with a force weaker than average. these two moving bulges created two tides a day. newton's "principia mathematica philosophiae naturalis", was published in . the established church denounced it as being against the scripture of the bible. newton did not agree with the established church on many points, such as the trinity, and was considered a heretic. he had his own interpretations of the bible and doubted the divinity of jesus. but it was accepted for dissenters like newton to qualify for full civil rights by maintaining an outward conformity and taking the sacrament in the established church once a year. newton was given a royal dispensation from taking holy orders as prescribed by the rules for tenure of fellows of his college at cambridge university. he did believe in a god who created the universe and who had a ubiquitous presence in all space. when catholic king james ii tried to have a catholic monk admitted to the degree of a master of arts at cambridge university without taking the oath of adherence to the established protestant church, so that he could participate in the business of the university, newton was active in the opposition that defeated this attempt. as a result, he was elected to parliament by cambridge. when olaus roemer, a danish astronomer, was applying newton's laws to the paths of the moons of jupiter to make a table of eclipses of jupiter's moons for use in determining one's longitude, he noticed that the eclipses were five hundred seconds ahead of average time at that time of year when the earth and jupiter were on the same side of the sun, and five hundred seconds behind average time six months later, when jupiter was on the other side of the sun. he reasoned that this difference was due to the light from jupiter's moons taking more time to reach the earth when jupiter was farther from the earth, i.e. on the other side of the sun. he concluded that light does not travel instantaneously, but at a certain speed. from the fact that it took seconds for light to travel the diameter of the earth's orbit, he calculated its speed in . in , christian huygens formulated the law of conservation of momentum [mass multiplied by velocity], which held that when objects collide, they may each change direction, but the sum of all their momenta will remain the same. huygens also recognized the conservation of what was later called "kinetic energy", which is associated with movement. he developed laws of centrifugal force for uniform motion in a circle. he derived the formula for computing the oscillations of a simple pendulum. in , he posited the theory that light consists of a series of waves. it states that all points of a wave front of light in a vacuum may be regarded as new sources of wavelets that expand in every at a rate depending on their velocities. he thought this a better explanation of bending and interference of light than newton's particle theory. in , robert boyle, called the father of modern chemistry, defined an element as a substance that cannot be further decomposed. he distinguished an element from both a mixture, which is easily separable, and a compound, which is not easily separable. he used an air pump he developed and a glass jar to create a confined vacuum space for experiments to find the properties of heat, light, and sound. he noted that burning objects such as candles and coal, when placed in the receiver of his air pump, went out after a time although air was still present. he opined that animals were dependent upon a fresh supply of air to live. he studied the relationship between the volume, density, and pressure of air and gases. he proved by experiment that the volume of a gas at a constant temperature varies in inverse proportion to the pressure applied to the gas. since gas is compressible, he opined that gases must be composed of discrete particles separated by void, and also that basic physical properties were due to motions of particles, or atoms, which was an ancient greek conjecture. this cast doubt on the long-held belief that everything was composed from four basic elements: air, water, fire, and earth. boyle's laboratory at oxford was denounced by the oxford clergy as destroying religion. in , the steam pressure cooker was invented by denis papin from france. he invented the atmospheric engine in . robert hooke helped boyle build his air pump. hooke was thirteen when his father, a minister, died. hooke was a genius with innate mechanical skill and was an able mathematician. he applied a spiral spring to regulate the balance of watches. a lord financed him as a gresham lecturer of geometry for pounds a year. in , he used a pendulum to measure the force of gravity and showed that the center of gravity of the earth and moon is a point describing an ellipse around the sun. in , he explained the twinkling of the stars by irregular atmospheric refractions. he formulated the theory that light is composed of pulses. hooke's law states that the amount an elastic body such as a spring stretches out of shape is in direct proportion to the force acting on it: its tension. he invented the odometer, a wheel to measure distances. he constructed an arithmetical machine. he invented the universal joint, which can move in many angles. his book of drawings of microscopic animals is a classic. he proposed that fossils can be used as a source of information about the earth's history. hooke became rich from his inventions, but this was not known until his death, when thousands of pounds were found in his iron chest. in , wallis postulated the correct theory of impacts of inelastic bodies, based on the principle of conservation of momentum. in , he introduced the first graphical representation of complex numbers. royal astronomer and genius edmond halley, the son of a soap maker, studied tides, magnetism, and the paths of comets and stars. he went on voyages to study the heavens from different positions, thereby laying the foundations of physical geography. he showed that the stars change in position in relation to each other. with newton's help, he calculated the orbit of a comet he saw in to be elliptical rather than parabolic and then proved it was the same comet that had appeared in and , indicating it's regularity; it was then named "halley's comet". however, the church of england still embraced the idea that comets and eclipses were evidence of god's wrath. greenwich observatory was built in . halley used a barometer to measure the density of the atmosphere and related its readings to elevations into the atmosphere and to weather. he determined that the cause of the tropical trade winds was the sun warming the tropical air at the equator, causing it to rise and move north as it was replaced by cooler air from the north. this body of air was deflected by the rotation of the earth. he illustrated the tropical winds with the first meteorological map. he made a descent in a diving bell, which was used to try to reach wrecked treasure ships. he studied fossils and perceived them as remnants of living beings that had died long ago, and imagined a succession of living things. halley surveyed the tides and coasts of the british channel for the king in . in , apothecary nicolas lemery divided substances into mineral, vegetable, and animal. he wrote a dictionary of pharmaceuticals. john ray and francis willoughby were friends who traveled together to study plants and animals respectively. john ray started the science of zoology with his edition of francis willoughby's "ornithology" on birds and his own "history of fishes". he also attempted the first scientific classification of animals in his "synopsis of quadrupeds". ray compared anatomies and experimented on movements of plants and the ascent of sap. he knew that fossils were remnants of old animals. ray first suggested the concept of species in classification of animals and plants. he opined that the goodness and wisdom of god was shown not only by the usefulness of animals to man's uses as taught by the church, but also by the adaptation of animals to their own lives and surroundings. the vast array and dispersal of animals found by world explorers all over the world cast doubt on the biblical story of noah putting two of every kind of animal on an ark. the science of botany began with ray's "history of plants" and the researches of robert morrison, who was charles' physician and keeper of his gardens. nicholaus steno, a danish physician, diagrammed six levels of stratification on the earth's surface and demonstrated in that layers of strata of rock are always deposited with the oldest layers on the bottom and the youngest layers on the top. this began the science of geology. he argued that shifts in the earth's strata caused the formation of mountains. he identified fossils as ancient creatures. the idea that fossils were remnants of dead animals existing before man conflicted with the religious idea that adam's fall began sin and caused death. the idea from fossils that existing species of animals were modifications of predecessor animals conflicted with the religious belief that noah's ark had preserved all the varieties of animals. john aubrey described stonehenge, thus founding prehistoric archaeology. he thought it to be a druid temple. the telescope and compound microscope, which has an objective lens and an eyepiece lens for producing a wide range of magnifications, were further developed. the cellular basis of life was discovered and described by robert hooke. nehemia grew, the son of a grammar school master who became a physician, observed and drew plant anatomy, including leaves, flowers, fruits, seeds, ovules, pollen grains, and stamens. he was the first to observe the existence of plant sexuality. italian marcello malpighi, a physician, used the new compound microscope to study human skin, spleen, kidneys, and liver and also compared the livers of several types of animals. he discovered capillaries linking the arterial and venous circulation in the lungs. dutchman anton van leeuwenhock, a cloth manufacturer who made microscopes to inspect the quality of cloth, turned them to use in understanding the life cycles of mites, lice, and fleas. he correctly described human blood cells. when he found what he described as tiny animals (bacteria, protozoa, and rotifers), he sent clear descriptions of them to the royal society in london as proof against the theory of spontaneous generation, which held that lower forms of life could arise from nonliving matter. this started the science of bacteriology. with the discovery of the egg in the female reproductive system, the status of women was lifted. physician thomas willis, son of a farmer, dissected brains of men and animals to study the anatomical relations of nerves and arteries. excess urine had been associated with a wasting disease. willis identified diabetes mellitus with excess of urine that was sweet. physician thomas sydenham, son of a gentleman, observed epidemic diseases of london over successive years, thus founding epidemiology. he also furthered clinical medicine by emphasizing detailed observations of patients and maintaining accurate records. he wrote a treatise on gout and identified scarlet fever. he introduced a cooling method of treating smallpox. but he still relied on the big three treatments: bloodletting, purging, and sweating. bloodletting was to draw off bad blood so that it could be replaced by a better fluid. another treatment used was cupping, whereby a vacuum was created by heated glass cups to draw blood to the surface of the skin. john locke performed one of the first successful operations draining a kind of abscess of a man's liver. it was common for people who felt ill to take a laxative and rest at home. in , physicians opened the first dispensaries, which gave treatment and medicine together, to take business away from their rivals: the apothecaries. london's apothecaries were released in from jury service and service as constable, scavenger, or other parish or ward office because it was necessary that they be available to attend the sick at all times. peruvian bark which had quinine as its alkaloid had been introduced as a proven cure for the ague, a fever with chills usually due to malaria, in . the english ceased to believe in holy wells, but went to spas such as bath for treatment of disease. there was more bathing because private homes in towns now had indoor baths. the public baths came into disuse. for childbirth, only rich women were attended by physicians. most physicians used talismen such as the eagle stone at deliveries. caesarian section almost always led to the death of the mother. midwives were licensed by the church and could baptize babies. jane sharp wrote "the midwives book" with anatomical illustrations. women over thirty had fewer children and the last child born was at an earlier age than before. this was in part due to birth control such as coitus-interruptus, long breast-feeding of a current child and/or the taboo against sex if the wife was still breast-feeding. rich women often employed wet-nurses to breast- feed their babies. babies seldom thrived, or even survived, without out a regular supply of breast milk. john locke, an oxford don, physician, and son of an attorney, expressed a view that the monarchy was not based on divine right, but rather on a contractual relationship with the people, who were reasonable, free, and equal by nature. this idea was first adopted by revolutionists and then became accepted as orthodoxy. also, he articulated the right of resistance, the supremacy of legislative assemblies, and the responsibility of rulers to answer to their subjects. he theorized that men turn to forming a civil government when there is a need to protect accumulated property from some unreasonable men. this, along with the protection of life and liberty, was the primary function of government, before royal pleasure, national pride, or foreign conquest. he wrote theories on the interaction of supply, demand, interest rates, rents, coinage, and foreign exchange rates. he believed that interest rates should be the natural ones determined by market forces rather than by the legislature, especially if there was an attempt to lower interest rates below their natural rate, which was not only undesirable but easily circumvented. he thought that attempting to legislate contrary to natural economic laws, e.g. prices, was doomed to failure from unexpected consequences. he agreed with most mercantilists that by maintaining a large inflow of precious metals through consistent export of surpluses in foreign trade would lead to low interest rates, increased trade, increased capital stock, high employment, and high prices, and therefore a healthy economy and enrichment of the nation. locke thought that knowledge comes primarily from experience, i.e. sensation and reflection, rather than from innate ideas placed in the mind by god, so that observation and experimentation are necessary to find truth. he theorized that propositions of truth have probability rather than certainty. probable propositions included opinion, belief, and revelation. his "thoughts on education" was a great book on the formation of character. locke also advocated the use of a large field for inventing labor-saving and economic devices for agriculture. he espoused freedom of thought in "letters on toleration" and wrote "an essay concerning human understanding", which described how the mind functions in learning about the world and which attempted to reconcile science and christianity. he was a great admirer and friend of newton and they shared religious views. he was also a member of the royal society. at oxford and cambridge universities, there were the most enlightened theologians, classicists, orientalists, philologists, mathematicians, chemists, architects, and musicians. there were professors of anglo-saxon, hebrew, and arabic. john locke's influence caused modern philosophy to supercede traditional scholasticism. there were no more disputations to qualify for degrees. some of the students were the sons of noblemen and sat at meals with the heads, tutors, and fellows of the colleges. most students were the sons of landowners, clergymen, professional men, or prosperous men of business. they were known as the gentlemen commoner students. the few poor students were known as servitors and paid for their education by menial work. corporal punishment ceased. instead there were fines, suspension, and expulsion. fellows of colleges had common rooms for drinking and smoking together as they had done in taverns outside college walls. the king had authority to grant licenses in sell or give land in perpetuity, to encourage founding and augmenting colleges and schools. the two universities were vested with the presentation of benefices that had belonged to papists. english nonconformists such as presbyterians were excluded from oxford and cambridge universities, so they were educated at glasgow in scotland. grammar schools were blamed for the past civil war by educating too many people above their station, so ecclesiastical control now stifled them. a few dissenting schools were established. charity was given to schools for children of the poor for placement as apprentices, but not to educate them above their stations. in the s, about % of males in london were literate. by , illiteracy was a special characteristic of the poor instead of a characteristic of the vast majority of common people as in . fountain pens came into use. many books written tended to be about the author's experiences, for instance samuel pepys' "diary", gilbert burnet's "history of my own times", john evelyn's lifelong diary with vivid descriptions of striking events of the day, and nonconformist celia fiennes' description of her tour of england on horseback. there were many political biographies. historians did not yet study history as a continuous process, but narrated self-contained stories to instruct by example. william fleetwood wrote about economic history in "chronicon preciogum". george hicks put together a "thesaurus" of the northern languages. thomas hyde wrote on ancient persian religion. john spenser compared jewish rites with those of other semitic people, thus starting comparative religion. richard bentley, william's librarian, wrote a "dissertation" on the ancient greeks. he compared the ancient greek life with modern life. he also confuted atheism on the newtonian system. a translated version of "critical history of old testament" by frenchman richard simon identified the old testament as history instead of divine revelation. john milton wrote "paradise lost", which retells the biblical story of the creation and the fall of adam and eve against the backdrop of satan's rebellion and expulsion from heaven and emphasized god's justice in spite of everything. the poem deals with the puritan struggling against evil and the problem of sin and redemption. it has a cold and severe conception of moral virtue and stoical self-repression in its characters. there is no sympathy with the human condition. reading this book made the english more serious, earnest, and sober in life and conduct and more firm in the love of freedom. john bunyan wrote "pilgrim's progress" in which a tinker takes a journey to find the everlasting city of heaven and on the way meets people who try to harm him. but he derives strength from his adversities. the journey is a metaphor for the christian soul trying to find salvation. it is puritan in its sympathies and has insights into human nature. john dryden wrote on large social, political, and humanistic issues, often by political satire. william congreve wrote plays such as a comedy on manners. william wycherley wrote cynical satires and portrayed folly, affection, and vice. john vanbrugh wrote plays satirizing london high society and social institutions. john toland wrote "christianity and mysterious" on deism. "puss in boots", "red ridinghood", and "cinderella" became available in print. there were many female poets, bookwriters, and playwrights. anne finch, later vicountess conway, wrote the philosophical book: "principle of the most ancient and modern philosophy" to reconcile the new science with christian belief. in it every creature had a body and a spirit. mrs. aphra behn wrote "oroonoko", one of the first novels. basua makin, governess of the little sister of charles ii wrote an essay to revive the education of women, arguing that women's activity in wartime showed that they were fit to be educated. elizabeth elstob, who studied teutonic languages, was one of the founders of women's education. mary astell proposed a college for women. some women painted portraits. there were rigid censorship acts from to . the first required that no one could print a book without first registering it with the company of stationers of london and having it licensed by appropriate authority: common law books by the lord chancellor or the lord keeper of the great seal, affairs of state and history books by the secretaries of state, heraldry books by the earl marshall or kings of arms garter, university books by the chancellor or vice chancellor of either of the universities, and all others including divinity, physics, and philosophy by the archbishop of canterbury, or bishop of london. books could be imported only into london and not sold until approved by the archbishop of canterbury or bishop of london after being opened and viewed by a scholar appointed by these bishops and a representative of the company of stationers. if heretical, seditious, scandalous, schismatic or otherwise dangerous or offensive, the importer could be punished. no one could print or import copies of any books without consent of the owner with right by letters patent. the penalty for not doing so was to forfeit s. d. for each such book, of which the king would receive one half and the owner one half. printers had to set their own name to the books they printed and also the name of the author or else forfeit such book. only freemen of london who were members of the company of stationers could sell books. the company of stationers had the authority accompanied by a constable to search all houses and shops where they knew or had "probable reason" to suspect books were being printed. they could search houses of persons of other trades only by special warrant. they could examine books found to determine if they were licensed and, if not, to seize them. justices could imprison offenders. the first offense by offending printers was to be punished by suspension from printing for three years, the second offense by permanent disallowance from printing, fine, imprisonment, and corporal punishment not extending to life or limb. this statute was enforced by frequent prosecutions, such as of publishers of pornographic books. the only newspapers to appear between and were official government sheets. but in the requirement to license publications, including newspapers, was abolished, thereby giving some freedom to the press. locke had argued for this freedom, stating "i know not why a man should not have liberty to print whatever he would speak and to be answerable for the one just as he is for the other..." in the first daily newspaper in the world came into existence in england. the stationer's company monopoly of printing also ended in . printing was not regulated and no longer criminal just because it was unauthorized. printing could now be done in other places than london, york, oxford, and cambridge. the rich got richer and the poor got poorer. many successful merchants and manufacturers bought landed estates and established a line of country squires or baronets or even peers. the fashion started in the nobility and the richest mercantile families that their wives should become ladies of leisure. for workers though, there was constant underemployment. in periods of economic crisis industrial workers lost their jobs. much work was seasonal. anyone who could work most of the time was fortunate. laboring and out- servants, who comprised one fourth of the population, and cottagers and paupers, who comprised another fourth of the population, had to spend more than they earned. the poor rate collected from the parishes for the cottagers and paupers was d. per week. there was an agricultural depression that was deepest in the s after the collapse of a boom. it was the only bad depression experienced in peace time. there was famine in . any person receiving relief from any parish and his family members cohabiting with him was required to wear a badge with a "p" which identified his parish. this was to differentiate them from idle, sturdy, and disorderly beggars who were not entitled to relief. there were more poor people and, despite the poor laws, many became rogues or vagabonds or starved to death. many went from parish to parish to build cottages and consumed all the wood there and then went to another parish. so the parishes were allowed by statute to remove any person coming to settle in any tenement under the value of ten pounds who was likely to be chargeable to it. they were then removed to the last parish were they had resided for at least forty days. excepted were people temporarily moving to another parish to work at harvest time. the overall effect was to decrease the mobility of people. but a later statute permitted greater movement of poor people by allowing those who were poor for want of work to go to another parish where labor was wanted. they had to bring a certificate of their present parish membership to the new parish, where they could settle if they rented a tenement worth ten pounds a year or served in a parish office. later, settlement had to be given to inhabitants paying its parish's rates, and unmarried inhabitants hired for one year, and apprentices bound by indenture. but parishes were displeased with the requirement to give settlements to these people because they feared they would become poor and need parish assistance, thereby increasing the rates to be paid. parish poor houses were converted into spinning schools to obtain an income. parishes of large towns were combined to set up large workhouses, where the poor could be set to unskilled manufacture, but the managers lacked the character and education to make them work. because prisoners often died before trial and the poor prisoners became instructed in the practice of thievery in prison, they were set to work on materials provided to them at public expense. no parish was rated at more than d. per week for such. the president and governors of corporations oversaw rogues, vagrants, sturdy beggars, and idle or disorderly persons working in corporations or workhouses. assessments were made for building and repairing gaols in order to maintain the health and safe custody of the prisoners. also, gaol fever, a virulent form of typhus, was so prevalent in the large prisons for criminals and debtors that it frequently spread through the adjacent towns. during some assizes, it killed sheriffs, lawyers, and justices. in , london lands were taxed for the relief of orphans. churchwardens could seize the goods and chattels of putative fathers and mothers deserting bastard children. from to , societies for the reformation of manners prosecuted poor people for moral offenses. all hackney coaches and stage coaches in all the realm became required to be licensed. the turnpike system came into use. tolls were paid for road upkeep and repair by private companies. the local parishes ceased to have this responsibility. john ogilby wrote the first road book based on actual surveys of the roads. stage coaches cost a shilling for every five miles and went - miles a day. the trip from london to oxford was twelve hours. the company of coach and coach harness makers was founded with the consent of the king. the body of a coach hung from the frame by leather braces. one axle pivoted for turns. plate glass was used in the windows. rivers improved so that most places were no more distant from navigable waters than a long day's haul on land. the several post offices were put under the authority of one postmaster general appointed by the king for the purpose of speed and safety of dispatches, which were carried by horseback. one sheet letter going less than miles cost d., and more than miles, d. when the army was disbanded after the restoration, its officers and soldiers were allowed return to their trades and their apprenticeships without serving the usual seven years. parishes were required to provide for poor and maimed officers and soldiers who served charles i or charles ii. the royal hospital founded by charles as a home for veteran soldiers opened in . greenwich palace was converted to a hospital for seamen and their widows and children to encourage men to become seamen: mariner, seaman, waterman, fisherman, lighterman, bargeman, keelman, or seafaring man in the king's navy. also, children of disabled seamen were to be educated at the expense of the hospital. charles retained one regiment from which he started a small standing army, which slowly increased in size ever after. the army was primarily mercenary, as it had been in medieval times, with officers buying their commissions. colonels were the proprietors of their regiments and captains were the proprietors of their companies. the soldiers were ill mannered, swearing and cursing and stealing, sometimes from peoples' homes, and intimidating people with their swords. the bayonet was invented to attach onto a gun, which were muzzle-loading with a match lock. so pikemen with their long spears became obsolete. hand grenades and small explosive bombs came into use about . explosives were also used in mines. mines for coal became deeper as coal replaced the use of increasingly expensive wood charcoal for brewing and for brick, glass, and china manufacture. flooding of coal, tin and copper mines became a problem. in , thomas savery invented the miner's friend, a practical atmospheric steam engine without a piston. there was resort to many devices to fund wars. the land tax was still the primary tax. the customs and excise taxes were often extended to more goods and wares. sometimes there were duties imposed on marriages, births, and deaths. also, hawkers, peddlers, and other trading persons going from town to town to other men's houses on foot or on horse carrying wares had to buy a license. there were also loans from privileged companies such as the bank of england, east india co., and the south sea co. commissioners were appointed to take and state the account of all money in the public revenue. this discouraged the prevalent corruption of government officials and thereby the people were encouraged to pay their taxes. the goldsmiths loaned money to the king and to private persons and to the exchequer. receipts from goldsmiths for storage in strong boxes had become a de facto paper currency. but when the goldsmiths had no more money to lend, the bank of england was founded in under whig auspices to provide money for war. it was the first institution to issue notes in excess of its total deposits. however, it was not allowed to lend money to the crown without the consent of parliament. it was incorporated as the first english joint-stock bank and had about , shareholders. these original subscribers were individuals from london from many walks of life, including well-to-do tradesmen and about % of whom were women: wives, widows, or spinsters. not many corporations were original subscribers. holders of at least pounds could vote, of pounds could be directors, and of pounds could be governor. the bank issued notes payable to bearer and discounted bills, but these were not legal tender. it lent at % to the crown and occasionally to corporations. money was also borrowed by offering annuities on single lives. this was the first time the government borrowed directly from the public on a long- term basis. in there was inflation due to over issue by the bank because of inexperience, pressure from government, and the bank's greed for business. after a dividend of % in , the next year there was no dividend and so the bank stock price fell. in , five pound and ten pound short term bonds were sold to the public. also in that year was the first run on the bank. this occurred two days after clipped money lost currency; people wanted the new recoined money, but the mint had not supplied the bank with sufficient supplies. interest instead of cash was given for notes. cash was short for months. the bank's credit was much shaken. it was then given a monopoly so that its notes would not have competition. thereafter, its dividends were good - about % per year. because of its monopoly, its dividends were about % above the current going rate of interest. about this time, exchequer bills, with interest, were started by the exchequer and circulated by the bank of england. they were frequently endorsed many times by successive holders. the bank simply took over from the goldsmiths its main everyday business of deposit, with a running cash note [cashier's note, specie note, cash note], which was payable on demand and normally did not bear interest; and a drawn note [precursor to the check, but not on special paper]. the bank gradually convinced many of its clients to use its "check" [cheque] paper when drawing. the check paper was unique to the bank and embellished with distinctive scroll work to serve as an obstacle to fraud. over time the running cash note tended to be for round sums of at least twenty pounds and multiples of five pounds. the bank of england had a monopoly on issuing notes in the london area. country banks arose and issued bearer notes payable on demand and interest-bearing notes in their areas. the bank of england gave to its depositors the service of paying annually to a designee without further order. a decision of the common law courts held that bills of exchange (written orders to pay a given a sum on a given date) were transferable to other people by successive endorsements. so long distance payments no longer had to be made in coin, with all the dangers of highway robbery. the financial revolution of the s meant that the merchant elite could invest in government bonds or company bonds at - %, or london leases at %, as opposed to income from landed estates, which was under %. shareholders were no longer personally liable for company losses. interest on loans was no longer considered sinful as long as it was not oppressive. the greater ability to borrow spurred the growth of capitalism. all brokers and stock jobbers in london and westminster of bank stock, bank bills, shares and interests in joint stock must be licensed by the mayor, which shall necessitate their taking an oath to exercise their office without fraud or collusion to the best of his skill and knowledge as of . this is to avoid the collusion of fixing values to their own advantage. compilations of tables of mortality originated the science of life-statistics. this made life insurance possible. but it was administered by ad hoc offices rather than companies and was not reliable in making payments. william petty made a statistical study of economics and determined that the basic values of an economy derive not from its store of treasure, but from its capacity for production. trade was studied empirically by statistics by new offices such as the inspector general of imports and exports. charles instituted a hearth tax of s. per year in , with constables and officers authorized to verify the number of hearths and stoves in houses. it was repealed in because it could not be enforced except by exposing every man's house to be entered and searched at pleasure by persons unknown to the people, which was oppressive and a badge of slavery. by bribes, charles built up a body of support in parliament which could be relied upon for a majority. they came to be called "tories" by their opponents. "tory" had been a term of abuse for irish catholic bandits. the tory and whig groups were known by their disagreement over the authoritarianism of the crown. the tories were sympathetic to the doctrine of divine right and favored a doctrinally high church. the tories represented landed property and the established church, and usually wore blue in contrast to the purple of royalty. many royalists became tories. the whigs refused to accept the sacrosanct character of the monarchy. the whigs opined that government depended upon consent of the people and that the people had a right of resistance. they subordinated the crown to parliament. the whigs represented the dissenters and the mercantile classes, and often wore red. many former puritans became whigs. "whig" had been a term of abuse for scots presbyterian rebels and horse thieves. the gout and venereal disease were common among political leaders. a primitive condom just introduced to the aristocracy from france helped deter syphilis, but was uncomfortable and unreliable. under charles ii, the treasury as a supreme financial body separated from the exchequer as a depository of revenue. a gold guinea coin was issued. from , government policy was controlled by specific appropriations. money bills had to originate in the commons, and could not be amended by the house of lords. boards became independent of the king's privy council and answerable to the secretary of state. in the s, charles compelled some of the livery companies in london to give up their charters to him and he called in many corporation charters of boroughs whenever some light excuse could be found to justify it. this was done by the use of the writ of quo warranto [by what authority] before a court. in london he had the tory mayor revive an ancient custom of selecting a sheriff by drinking to him at the annual feast. two tory sheriffs were installed into office. all these actions gave the king a voice in selection of the officers of london and boroughs, since royal commissioners would then determine who the officers would be. this was to assure london's representation in parliament by crown loyalists as london had been whig. it also allowed influenced selection of sympathetic jurors. criminal seditious libel was brought into the common law courts in , when benjamin keach was tried for writing a book containing contradictions of the doctrine of the established church. he wrote against infant baptism and asserted that laymen might preach the gospel. the justice intimidated the jury to find him guilty. he was sentenced to be fined, to spend two hours in the pillory in two successive weeks, and his book to be burned before his face. he was to be imprisoned until he found sureties for his good behavior and renunciation of his doctrine and for his future appearance in court. juries were loath to find anyone guilty of seditious libel. james ii succeeded charles ii to the throne and fostered roman catholicism by appointments and by attempting to suspend laws unfavorable to catholics. he commanded all bishops to read in the churches his declaration of indulgence exempting both catholic and protestant dissenters from all penal statutes based on religion. seven bishops refused to obey and jointly petitioned him, stating that his action was illegal according to parliament. he prosecuted them for seditious libel in the petition. the jury found them not guilty. james discharged the two justices of the five who had rejected the seditious libel doctrine which had been created by the star chamber court. this roused the whigs and tories in turn to discharge him by joining in inviting protestants william of orange and mary to take the throne in his place. james was effectively chased out of england by william's advancing army in the glorious revolution of - , which took away the powers of final authority from the king, but without transferring them to any other body. a "bill of rights" stated that . -the king may not suspend laws or dispense with them without consent of parliament. . -the establishment of a court of commissioners and like bodies for ecclesiastical causes is illegal. . -the king may not levy money or extend an authorized levy without consent of parliament. . -subjects have a right to petition the king without prosecution. . -the king may not raise or keep a standing army within the country in time of peace without the consent of parliament. . -protestants may have arms for their defense as allowed by law. . -the elections of members of parliament should be free. . -the freedom of speech or debates or proceedings in parliament should not be impeached or questioned in any court or place outside of parliament. . -excessive bail should not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted (so no more men were whipped to death). . jury selection should not be tampered with, and jurors who try men for high treason should be freeholders. . all grants and promises of fines and forfeiture of particular persons, before conviction, are illegal and void. . parliament should be held frequently for redress of grievances and for the amending, strengthening, and preserving of the laws. . all protestants may freely exercise their religion and the king will maintain the protestant religion and the law and liberty of the realm. the right of the peoples' representatives to select and depose the king and to change the order of succession was established. there was no divine right or hereditary right to the crown. an english monarch was created by an act of parliament. the king still called and dissolved parliaments, except that parliament continued for six months after the death of a king. from , parliament sat every year. freedom of speech for members of parliament was established by a resolution overturning a king's bench felony conviction of sir john elliot. by the act of settlement of , no officer or pensioner of the king could be a member of parliament. all resolutions by the privy council had to be signed by the members consenting to them. no one born outside the realm could be a member of the privy council or of parliament, or could have any civil or military office or place of trust, or any grants of land or tenements from the king. justices served during good behavior instead of at the pleasure of the king. after the glorious revolution, tories tended to accept of the whig principles of limited constitutional monarchy instead of rule by divine right. under william and mary, the ministers were first chosen by them but could be impeached by the commons and then removed by the parliament. the commons removed anyone who disagreed with them as soon as he made a mistake. but the king could pardon anyone convicted by parliamentary bill of attainder. this was inconsistent, so no one was allowed to plead pardon by the king in an impeachment by the commons. thus parliament gained control of who would be ministers. the glorious revolution favored the capitalists and the commercial magnates even though it had been started by the landed families, with whom they now intermarried. there were companies in the fishing, silk, baize [a coarse wool], sugar, rope, paper, iron, hardware, cutlery, gunpowder, saw milling, and pottery trades. these industries for manufacturing were organized on capitalist lines rather than being subject to guilds. that is, production was controlled by men with money and the means of manufacture. the largest pottery workshops employed about six men. one man shaped the pots, another made the handles and put them on, while the others did the decoration, the glazing, and the firing. new companies could be formed without royal or parliamentary consent. regulated companies declined. there were no more commercial monopolies. the merchant adventurers lost their last monopoly privileges and their entrance fees were abolished. their method of limiting the volume of their exports of english cloth to germany to keep up prices was obsolete. now they tried to capture the market by selling cheap. there were more joint-stock companies and on a larger scale. they also no longer restricted output to keep prices high, but geared to export many inexpensive goods. drinking of gin, which had first been made by a flemish physician, became popular under king william, who was dutch. the year of his accession, the gin monopoly ended. from the mid- s to , coal production increased fourteen times. sir ambrose crowley, an iron maker with coal works, established disability and medical benefits and pensions for his workers. the capitalist organization of the mining, glass manufacture, salt, soap, wire and other monopolized industries was made possible only by government support. salt and glass manufacture expanded. glass drinking vessels were in common use. mirrors of blown plate glass were manufactured in england. in , vauxhall glass works were opened with workmen brought from venice to blow their fine glass and make mirrors. some plate glass by casting was imported. plate glass was a large and strong glass piece, which was formed by the liquid glass being poured on a table. this glass was not distorted, so mirrors could be made perfectly reflective. then plate glass for coaches, mirrors, and windows became manufactured in england; this new industry was organized on capitalist lines. the domestic or "putting out" system came into use. in this system, the worker usually owned his own machinery and the capitalist owned the material, which he put out to the worker at home. the merchant manufacturer bought raw wool and had it carded, spun, woven, fulled, and dressed at his own expense. some farmers became spinners in the winter when outside work was impossible. the manufacture of nails was also done by this system. accordingly, the guilds and municipal corporations in towns ceased to control the recruiting, conditions of work, and pay of industries. only a quarter of towns had any organized guilds at all. the growing town of birmingham was not a chartered borough, so never was encumbered with guild regulations. overall, the guild and apprentice regulations were effectively enforced only in agriculture work. artisans became known as tradesmen. work was usually irregular, some seasonal. in bad years, when a worker had to borrow money, he used work tools, such as his loom, as security. in this way, one's work tools often became the property of a merchant. some merchant clothiers also owned a fulling mill and a shop where the cloth was sold. the capitalists first became owners of the materials, then of the implements, and then of the work places. but production was still confined to the known wants of its habitual market. men used to working at home were generally not inclined to go to work in a factory. so there was an assortment of unskilled factory labor, such as country people driven from their villages by the growth of large estates, disbanded soldiers, and paupers. they had to be taught, trained, and above all disciplined. smiths used trip hammers powered by watermills which turned axles with cams on them. they made iron gates, fences, balconies, and staircases with hammer, anvil, and chisel. cast iron was made by running liquefied metal into molds. this was harder but more brittle than the tough but malleable wrought iron. tinkers went from house to house to repair metal items such as pots and pans. the east india company had about half the trade of the nation. its shares were frequently bought and sold. it responded to anger over its semi-monopoly status by granting liberty to all english subjects below the age of forty to live in its indian settlements and to trade practically everywhere. bombay, india became subject to the east india company. charters gave the east india company the right to coin money, to exercise jurisdiction over english subjects, to levy taxes, to build and command fortresses, to command english and indian troops, to make peace and war, and to enter into alliances with indian rulers. the company always paid high dividends and the market price of its shares generally rose. pound stock was worth pounds in , pounds in , pounds in , and even up to pounds in , and then fell to pounds in . in a new charter for the company included loss of monopoly status by resolution of the commons. with this resolution, parliament assumed the right of regulating commerce, now no longer the king's province. thereafter the commons regulated trade with india and determined who could participate in trade there. political issues developed, which initiated corruption at elections by entertainment and bribes to candidates, which were later proscribed. the trade opened up to many more traders and investors. ordinary investors came to include women and quakers. the stock exchange was incorporated about . exports included grain, silk, metal wares, foodstuffs, lead, and tin. cloth and manufactures were exported to america. dyeing and dressing of cloth became the norm and undressed cloth exports fell sharply. imports included linen; flax; hemp; timber; iron; raw, thrown, and woven silk; wine; brandy; fruit; coffee; chocolate, served as a drink or used in cooking; cauliflower; and oil. from america came molasses, sugar, tobacco, and dyes. sugar was in great demand for tea, coffee, and chocolate. the east india company imported calico, silk, pepper, spices, china tea, potions, and saltpeter. tonnage of english shipping doubled by exports and imports increased % by . when there was a surplus of grain, it was exported. about , the king set up a board of trade of eight paid members and great officers of state, who nominally belonged to it, and a staff. this was to achieve a favorable balance of trade. for instance, it imposed tariffs to protect internal markets and put restraints on imports of goods producible in the country, e.g. live cattle, dairy products, and woolen goods. it also restricted the export of raw wool. england led the way in protectionist measures. parliament required an oath of allegiance to the new sovereigns william and mary from all those in public functions, including the clergy. by extending this rule to the clergy, parliament asserted a supremacy of parliament over the church. it also asserted a supremacy over the king by requiring all monarchs to take a coronation oath promising to govern according to the statutes, laws, and customs of parliament, to make judgments with law and justice in mercy, and to maintain the protestant religion established by law. england competed with other nations for land in the new world. carolina, named for charles ii, was colonized for commerce in . the episcopal church, an analogue of the church of england, was established there by law. the whole coast became english after war with the netherlands gave new york, named for charles ii's brother the duke of york, and new jersey to england in . presbyterians and baptists fled from religious tests and persecutions in england to colonize new jersey. for free passage to the english colonies, people became indentured servants, agreeing to serve the master of the ship or his assigns with a certain kind of labor for a term of a few years according to a written contract made before departure. also, various statutes made transportation to any part of america available to any person who would pay for his transportation, for a term of years, usually seven, as a new possible penalty for offenses. in , harvard college was founded in new england to advance literature, arts, and sciences, as well as to train ministers. some american colonists sent their sons to be educated at the inns of court in london. in , quaker william penn, son of an admiral, founded the colony of pennsylvania for quakers in a "holy experiment" in political and religious freedom. the king had granted proprietary rights to this land to him to discharge a crown debt to his father. when penn refused to take off his hat before king charles and asked why charles took off his own, charles, unruffled, replied that "it's the custom of this place that only one man should remain uncovered at a time". the pennsylvania charter of went beyond magna carta and england's law in guaranteeing right to counsel and giving a right to defendants to summon witnesses in all criminal cases. it gave penn absolute authority and he established liberty of conscience, i.e.freedom of religion, and freedom from arbitrary arrest. in , some quakers founded a small hospital in pennsylvania as an asylum for the insane, where they would be treated humanely. proprietary colonies, in which an individual or syndicate held under the crown a sort of feudal overlordship, were founded in america: namely, virginia, maryland, carolina, new york and new jersey in , and pennsylvania and delaware in . new hampshire was made a royal province in to cut off the expansion of massachusetts, which had been avoiding the trade laws. these colonies were distinguished from the corporate colonies of massachusetts, plymouth, connecticut, and rhode island, which made their own arrangements for internal government without a royal executive. charles persuaded the chancery court to declare the charter of massachusetts void; it was given a new charter in which made it a royal province. new york was made a royal province in . maryland's proprietor gave way to a royal governor in . soon all colonies except rhode island, connecticut, pennsylvania were royal provinces, with governors nominated by the crown. this bringing of union to the colonies was done for maintenance of order, to coordinate defense, and to enforce trade laws. in , the hudson's bay company was incorporated to engage in fur trade with indian trappers in the hudson bay and to find a northwest passage to china. in the founding of the "society for the propagation of the gospel in foreign parts" by the church of england created many missionaries in the colonies, where they called their churches "episcopalian". increase mather and his son cotton mather were puritan ministers in colonial boston. increase was for a time the president of harvard college and participated in obtaining the new charter of colonial massachusetts of . he and his son tried to maintain the principles of the puritan founders of massachusetts, which included the theories of diabolical possession and witchcraft. but the thought of presbyterians, anglicans, and baptists became influential also. in in the small town of salem, massachusetts, some hysterical girls showing strange spasms and sounds charged they had been bewitched by certain other residents. victims were deceived, flogged, or tortured into forced confessions and then excommunicated from the church. they were then hanged and their property confiscated. one man endured being pressed to death for refusal to plead so that his property would be inherited by his family rather than confiscated due to being convicted. eventually, some prominent citizens including judges were accused. then the more thoughtful people began to doubt the whole phenomenon and admitted error. the excommunications were revoked. cotton mather came to accept newton's science and advocated inoculation. he encouraged puritanism into a simpler piety and charity. this influenced american protestantism toward a generalized concern with good works, morality, and social leadership. the law treason to the king is to compass, imagine, or intend death or any bodily harm tending to death, or maiming or wounding, or imprisonment, or restraint as well as trying to depose him or levy war against him. also included is printing, writing, preaching, or malicious speaking. traitors shall suffer death and forfeiture as in high treason. the fine for having, buying, or selling clipped coins is pounds, one-half going to the informer, and one-half going to the king. the offender shall also be branded in the right cheek with the letter "r". he shall be imprisoned until he pays the pounds. no hammered coins are lawful. anyone except a smith in the king's mint making tools or presses or other machines that can make counterfeit coins or having such which were stolen from the mint shall be guilty of high treason. any malicious and willful burning or destroying of stacks of hay, grain, or barns, or killing any horses, sheep, or cattle at nighttime shall be felony and punished by transportation to the american colonies for seven years. any person apprehending a thief or robber on the highway will be rewarded pounds from the local sheriff, to discourage the many robberies and murders which have made travel dangerous. also, executors of persons murdered while trying to apprehend a robber shall have the reward. anyone killing, hurting, or taking away deer from any forest or park or other ground without consent of the owner or custodian shall pay a pound fine. this was later increased to pounds for hunting deer and pounds for wounding or killing deer, with the pillory for one hour on market day and gaol for a year without bail for those who couldn't pay. any person privately and feloniously stealing any goods, including horses, by day or night, in any shop, warehouse, coach stable, or stable, whether there is a break-in or not, and whether or not the owner is present, or anyone assisting or hiring such person may not have benefit of clergy. any person who apprehends and prosecutes such person is excused from having to serve in parish and ward offices. an offender being out of prison who informs against two other offenders who are convicted is to be pardoned. any person convicted of theft or larceny and having benefit of clergy is to be burnt in the cheek nearest the nose instead of on the hand. when a bill of exchange drawn to at least five pounds is not paid on demand at the time it is made payable, the person who accepted it may make a protest in writing before a notary public, which shall be served on the maker of such bill, who must pay it and all interest and charges from the date of the protest. but if a bill of exchange is lost or miscarried, another shall be given in its place. no one may take more than pounds in interest for a pound loan. persons seeking election to parliament may not give or promise money, meat, drink, entertainment, present or gift to any elector. because the gaols were full of people in debt due to the late unhappy times such as the london fire, all prisoners for debt were released upon taking an oath that they had no property over ten pounds nor had disposed or conveyed property to defraud creditors. creditors not wanting them released had to contribute to their maintenance in gaol. any sale of land or lease or estate of freehold or copyhold shall be in writing and signed. an interest in land given orally shall have only the force of estates at will. all contracts for sale of goods or merchandise for the price of at least pounds shall be in writing and signed by the parties or shall be accompanied by part payment or partial acceptance of the goods. this is to deter fraud. this statute caused many small freeholders, including yeomen, who paid rent by custom to be dispossessed. mortgagees can hold the land of any mortgagor who borrows money upon security of the land or obtains another mortgage without prior notice to the initial mortgagee. the mortgagor has six months to pay off the mortgage and all interest and charges or vacate the land and lose his equity therein. but a widow's dower will not be affected if she did not join with her husband in the mortgage. if rent is not paid in a reasonable time, the renter's goods and grain may not only be distrained, but sold. one coparcener [one person of two or more persons who inherit as co-owners of land] of a joint tenancy [land held that descends to the heir of a co-owner who dies] or tenancy in common [land held that accrues to the surviving co-owner if one dies] may have a court partition the property without the presence of other coparceners, because such coparceners are often difficult to find. this is to avoid wasting of land lying uncultivated and unmanured. after the intestate death of a father of any sons or daughters without wives or children of their own in the life time of their mothers, the mother and every brother and sister shall share equally except the customs of london and york shall not be affected. administrators have to make an inventory. they have to account on request by an interested person. they must be bonded by two sureties. executors and administrators of estates of deceased persons must pay the debts of the deceased person rather than waste or convert the goods and chattels to their own use. creditors may recover their debts from heirs or devisees of the will of a debtor. men gone beyond the sea who could not be accounted for were deemed dead after seven years, so their life estates could be terminated. whereas lawful games are not to be used as constant callings for a livelihood, and young people are deceived and debauched and their money taken, anyone "winning" money by deceitful or fraudulent gambling shall forfeit three times his "winnings". the making or selling of fireworks is forbidden or else forfeit pounds. firing or throwing such from one's house onto or across the street is a common nuisance with a penalty of s. this is to avoid the loss of life and of eyes. no more than people may petition the king nor more than people may assemble to present a petition to the king, because more has been tumultuous and disorderly. anyone may without fee set up a hemp business including breaking, hatchelling [separating the coarse part and broken pieces of the stalk from the fine, fibrous parts by drawing the material through long iron teeth set in a board], and dressing it; or a flax business, including making and whitening thread, spinning, weaving, making, whitening, or bleaching hemp or flax cloth; making twine or nets for fishing or treating cordage for tapestry or hangings, because the daily importation of such has in effect taken the work from the poor and unemployed of england. no sheep, wool, woolfells, shearlings, yarn, fuller's earth, or fulling clay may be exported as has secretly been done, so that the poor of the realm may have work. fishermen may sell their fish to others than fishmongers at billingsgate fish market because the fishmongers have forestalled the market and set their own prices. the buyers of such fish may resell them in any other london market by retail, except than only fishmongers may sell in shops or houses. no tanned or untanned skin or hide of any ox, steer, bull, cow, or calf may be exported because the price of leather has risen excessively and leather workers can't get enough raw material to carry on their trade and because poor people cannot afford leather items they need. the newly incorporated company of silk throwers (drew the silk off the cocoon) employs many of the poor, but others practice the trade, so an apprenticeship of seven years is required to practice the trade in the realm. winders or doublers who purloin or embezzle and sell silk from the thrower who employs him and the buyer of such silk shall make such recompense as ordered by a justice of the peace or be whipped or set in the stocks for the first offense. the regulation of the silk throwers company restricting the number of spindles to be worked at one time is voided because it has taken livelihoods away and caused foreign thrown silk [silk twisted from cocoons into thread] to be imported. buttons on garments must be made of silk, mohair, gimp, and thread and by needle to keep employed the many throwers, twisters, spinners, winders, and dyers preparing the materials for these buttons. no button may be made of cloth or wood. when a bill of exchange drawn to at least five pounds is not paid on demand at the time it is made payable, the person who accepted it may make a protest in writing before a notary public, which shall be served on the maker of such bill, who must pay it and all interest and charges from the date of the protest. but if a bill of exchange is lost or miscarried, another shall be given in its place. no one may take more than pounds in interest for a pound loan. persons seeking election to parliament may not give or promise money, meat, drink, entertainment, present or gift to any elector. because the gaols were full of people in debt due to the late unhappy times such as the london fire, all prisoners for debt were released upon taking an oath that they had no property over ten pounds nor had disposed or conveyed property to defraud creditors. creditors not wanting them released had to contribute to their maintenance in gaol. retailers of wine may not add to imported wines cider, honey, sugar, molasses, lime, raisin juice, or herbs. butter sold must be of one sort and not contain bad butter mixed in with good butter. butter pots must bear the name or mark of their potter. salt may be sold only by weight, to avoid deceit by retailers and wrong to buyers. no tobacco maybe grown in england because the colonies would be discouraged from growing it and the king would not receive customs from it. no goods are to be imported to or exported from america, asia, or africa except in english ships, with masters and / of the mariners englishmen. no manufacture of europe may be imported into any colony or territory except shipped from england in english ships manned by englishmen. as of , if bond is not given for colonial exports of sugar, ginger, tobacco, cotton, indigo, cacao nuts, or fustic [tree that yields a yellow dye] and other dye- woods going to england, a duty must be paid. as of , no colonial goods are to be imported or exported or carried from one colony to another, except in ships owned and built in england, ireland, or the colonies with the masters and three fourths of the mariners from such places. these navigation acts were strictly enforced. only persons with lands and tenements or estate worth over pounds per year or having a lease of at least years worth pounds per year and owners and keepers of forests or parks may have any guns, bows, greyhounds, hunting dogs such as setting dogs, snares, or other hunting equipment. these persons may kill hare, pheasants, partridges, and other game. gamekeepers authorized by justices of the peace may search houses and outhouses and seize unlawful hunting equipment. if hunting equipment or game is found in a house without good account to the justices of the peace, they shall impose a fine of s. to s., one-half going to the informer and one-half going to the poor of the parish. army officers or soldiers who desert or mutiny shall suffer death or such other punishment as decided by a court martial of senior officers rather than the usual form of law, which is too slow. seamen not showing up on board after notice shall serve six months without pay, but shall not suffer as deserters. seamen do not have to perform service in the army. pirates may be punished by death and loss of all lands and chattels. any person aiding, advising, or concealing pirates may be likewise punished. officers and seamen killed or wounded in the defense of a ship or who seize or destroy pirates may be paid by the owners an amount up to pounds per pounds of freight as determined by a group of disinterested merchants and the judge. the amount due to a man killed will be paid to his widow and children. this is to be done when the ship arrives in port. any person who informs of any combinations or confederacies planning to run away with or to destroy a ship shall be rewarded by the commander or master of such pounds for a ship tons or under, and pounds for a ship over tons. the trial may be in england or the american colonies, whose authorities may issue warrants for arrest of alleged pirates. deserters from ships, because they often become pirates, shall forfeit all wages. masters forcing any man fit to travel to stay on shore or willfully leaves him behind shall suffer three months in prison without bail. persons may mine for ores on their own land, but must turn it over to the king who will give compensation for it, including gold, silver, copper ( pounds per tun), lead ( pounds per tun), tin ( s. per tun), and iron ( s. per tun). by statutes of and , when goods have been carried off ships without customs being paid, the chief magistrate of the place where the offense was committed or the adjoining place, or the lord treasurer, or a baron of the exchequer may, upon oath, issue out a warrant to any person to enter, with the assistance of a sheriff, constable or other public official, any house, shop, cellar, warehouse, or room in the day time where the contraband goods are "suspected to be concealed", and in case of resistance, to break open doors, chests, trunks, or other packages and to seize such goods, provided that if the information whereupon any house is searched proves to be false, the injured party shall recover his full damages and costs against the informer by action of trespass. this was extended to the colonies in . the penalty for cursing or swearing by a servant, day laborer, soldier, or seaman is s. for others, it is s. the fine is doubled for the second offense, and tripled for the third offense. if an adult offender can't pay, he shall be put in the stocks for one hour. if a child offender can't pay, he shall be whipped by the constable or by a parent in the presence of the constable. the equity courts are now conceding limited proprietary rights to married women by enforcing premarital settlements or trust arrangements that designate certain property as a wife's separate estate and exempt it from control by the husband. such protective devices generally reflected a father's desire to shield his daughter from poverty and benefited only the landed aristocracy in practice. also, husbands are not allowed to punish and beat their wives as before. but the lower rank of men were slow to give this up. a wife could have the security of the peace against her husband. he could restrain her liberty only for gross misbehavior. in , the courts ruled that apprenticeships were necessary only for servants hired by the year, thus exempting most wage laborers. there were many variations in religious practices for statutes to address. the quakers and baptists were opposed to any state church. the independents and presbyterians accepted the idea of a state church. the members of the established church and roman catholics adhered to their version the state church as they had experienced it in the past. atheism had a bad reputation. in , the jews established the first synagogue in london. the privy council recognized their religious status as long as they were peaceful and obeyed the laws. they engaged in pawn-broking as well as money-lending. there were various statutes enacted over the course of time regarding religion, as follows: all ministers, school teachers, mayors and other town officials, including magistrates, were required to take the oaths of allegiance and supremacy [of the king over the church] or be removed from office. a great number of people refused to come to their parish church or other public place where common prayer and sacraments were administered and the word of god was preached according to the established church. the morning and afternoon sunday services with sermons, sometimes by guest preachers, continued. so factions and schisms developed. in response, the king changed the book of common prayer and its prayers were required by statute in to be read by some priest or deacon in all the churches and places of public worship wherever and whenever there was any preaching or lecturing. attendance at one's local parish church was never again required. attendance at the established church of england was never again required. nor was preaching or lecturing constrained. instead, a statute was passed in that: every person shall be pious and exercise religion publicly and privately on sunday. no work may be done or goods sold or else forfeit s. or the goods respectively. no one may travel or else forfeit - s. in a further statute of , because some ease to scrupulous consciences in the exercise of religion may be an effectual means to unite protestant subjects in interest and affection, protestant nonconformists who took the oaths, or declaration in the case of quakers, and a declaration that they were not catholic, did not adore the virgin mary or any saint, and did not go to mass were declared not liable for punishment in any ecclesiastical court by reason of their nonconformity to the church of england, except protestant dissenters meeting behind locked doors. but payment of tithes and performance of parish duties were still obligatory. non-conformist preachers had to subscribe to the tenets of belief listed in the first eighteen articles of religion, but were exempted from the articles on expounding inconsistencies in scripture, the traditions of the church, homilies, and consecration of bishops and ministers of the elizabethan statute and the statute on uniformity of prayers and sacraments of charles ii. as of , no nonconformist minister, i.e. one who endeavored any alteration of government either in church or state, was allowed to live or visit within five miles of any corporate town or any place where he had acted as minister or else forfeit pounds. persons not frequenting the established church were not allowed to teach in any public or private school or else forfeit pounds. by statute of , anyone at least sixteen years old who is present at any assembly, conventile [private meeting of religious dissidents to pray and expound scripture], or meeting under pretence of any exercise of religion in other manner than according to the established church of england at which there are at least five persons present shall be fined s. for the first offense and s. for the second offense. this does not include members of the same household meeting in their home. anyone who preaches or teaches at such a meeting shall pay pounds for the first offense, and pounds for further offenses. the householder who permits such a meeting shall pay pounds. a justice or justice of the peace or chief magistrate may break open doors and enter by force any house or other place where they have been informed of any such meeting and take persons there into custody for prosecution. this is to discourage the growing of dangerous seditious persons under pretence of tender consciences. religious nonconformity continued especially among the humble people. the penal statutes caused hundreds of these nonconformists to be put in gaol. from time to time, the king would release them and suspend these laws. sometimes, charles ii allowed dissenters to meet in private for worship if they got a license from him. religious gatherings grew in numbers, size, and geographical extent. dissenters were then allowed by statute to meet behind locked or barred doors. but they had to pay tithes and could be prosecuted in the ecclesiastical courts for not doing so. by statute, all congregations and assemblies for religious worship had to register with the local bishop or archbishop. disturbers of religious worship were required to find two sureties for the amount of pounds. quakers were active in the countryside. they were about one tenth of the population and did not believe in a state church. there were some quakers schools and some quaker workhouses to give work to the poor. for the reason that they met together in large numbers to the great endangering of public peace and safety and to the terror of the people, and because they had secret communications and separated themselves from the rest of the people and from the usual places of worship, a statute was passed in , that any quakers who assembled to the number of five or more under the pretense of unauthorized religious worship and any person maintaining that taking an oath before a magistrate was unlawful and contrary to the word of god or refusing to take a required oath was to forfeit pounds for the first offense or be imprisoned for months if he couldn't pay. for the second offense, the penalty was pounds or imprisonment for months with hard labor. the third offense required abjuring the realm or being transported to a plantation of the king beyond the seas. the policy of charles ii was to allow quakers to meet undisturbed, to keep their hats on before magistrates, and to not come to the parish church. but this policy was only partially adopted in the country. from , by statute, the quakers were allowed to affirm or declare instead of making the customary oath. many presbyterians became unitarians, who rejected the trinity of "father, son, and holy ghost" and doubted the divinity of jesus, but accepted revelation. this statute was then passed in : any person having been educated in or having at any time made profession of the christian religion who, by writing, printing, teaching, or advised speaking, denies the holy trinity, asserts that there is more than one god, or that the bible is not of divine authority, shall be disabled for any ecclesiastical, civil, or military office. the penalty for a second offense is being disabled from suing or pleading any action in any court, being guardian of any child, or executor or administrator of any estate, or receiving any legacy or deed of gift and imprisonment for three years without bail or mainprize. catholicism was always disfavored. catholic priests were executed with little evidence. at times, charles commuted the death penalty for them to banishment. sometimes there were effigies of the pope burned in the streets. such burnings were later banned. at times charles allowed catholics to attend mass. by statute of , all civil and military officers and king's officials must take the oaths of supremacy and allegiance and take the sacrament of the established church of england or be incapable of office. they also had to make a declaration that they believed that there is not any transubstantiation in the sacrament of the lord's supper, or in the elements of bread and wine, when they were consecrated. this is to prevent dangers from papists. as of , no one may be a member of parliament if he has refused to take the oaths of allegiance and supremacy and the declaration that they were not catholic, did not adore the virgin mary or any saint, and did not go to mass. papists were made to pay higher taxes. every temporal and spiritual person, corporation, and guild had to pay taxes to subsidize the king in the amount of s. d. for every pound's worth of personal property and money. but papists had to pay s. d. for such. persons and corporations having land worth at least s. yearly, had to pay s. for every pounds' worth. but papists and aliens had to pay s. for such. but charles' successor, king james ii was catholic and gave many offices to catholics. this prompted a reaction against papists and more statutes restricting them. after james ii was chased out of england, a statute of required suspected papists in london to make a declaration that they were not catholic, did not adore the virgin mary or any saint, did not go to mass, or else stay ten miles outside of london. excluded were tradesmen and manual workers, who had only to register. all papists had to forfeit their arms and any horse worth more than pounds. also, no king or queen or spouse of such could be a papist, but had to make the same declaration as members of parliament, and join in the communion of the established church of england. as of , a person who was serjeant at law, counsellor at law, barrister, advocate, attorney, solicitor, proctor, clerk, or notary had to take the oath of supremacy and allegiance. as of , papists who kept a school or tried to educate the young were threatened with perpetual imprisonment. also, popish parents were prohibited from forcing their children who were inclined towards protestantism to become catholic by refusing them suitable maintenance. as of , a reward of pounds was offered to any person who apprehended a popish bishop, priest, or jesuit saying mass. also, no papist was allowed to buy land. judicial procedure after the restoration, all legal decisions of the commonwealth and protectorate were confirmed subject to a right of appeal. the star chamber was not restored, and parliament assumed its control of the press. the king's bench succeeded to most of the star chamber's jurisdiction. no longer could the privy council influence criminal cases and the general supervision of legal processes through the star chamber. the high commission court was not restored, but church courts were, but with depleted powers. they accepted subordination to the common law courts. because the church's administration was inefficient and corrupt and its punishments inadequate, they gradually lost their power to the common law justices and justices of the peace. they had virtually no authority over laymen. they could still punish heresy, but lost jurisdiction over the law of libel and slander, which then were transformed by the civil courts, and over prostitution and scandalous lewdness. local ordinances for suppression of brothels, which were run by madams, were founded on breach of the peace. in , the death sentence was taken away from the church courts. in , church sanctuary was abolished. the county courts faded into insignificance, as the justices of the peace took on more jurisdiction. in , new justices were issued patents with "at pleasure" instead of "during good behavior" describing their tenure. charles ii and james ii frequently dismissed justices not favorably disposed to the crown. in , they were to have fixed salaries instead of the profits of justice. by statute of , justices' commissions were to be made with an established salary determined by parliament and a tenure to last during good behavior. they could be removed only by the address of both houses of parliament. this gave them independence from the king. their tenure lasted for the life of the monarch. as of , no man could be held in prison but on a charge or conviction of crime or for debt. every prisoner on a criminal charge could demand as a right from the court of the king's bench the issue of a writ of habeas corpus which bound his gaoler to produce the prisoner and the warrant on which he was imprisoned for review as to legality. this forced trials to be speedy, which they had not hitherto been. now it was impossible for the crown to detain a person for political reasons in defiance of both parliament and the courts, as charles i had done. the writ was suspended in times of war and domestic unrest: , , . in , william penn was arrested for sedition for delivering a sermon in london, contrary to the statute that only the church of england could conduct meetings for worship. the jurors would not convict him, so were gaoled and fined by the justices. the jurors filed a writ of habeas corpus in the court of common pleas, which held in their favor. thereafter the english jury had full independence to decide verdicts. by court decision of , jurors were held not to be responsible to the justice for their verdict. after , hearsay was inadmissible as evidence, which coke had recommended. the old system of original writs was abandoned, and the general concept or a wrong to person or property took its place. a person who was sergeant at law, counselor at law, barrister, advocate, attorney, solicitor, proctor [supervisor of students taking an eexam], clerk, or notary in the courts had to take the required oaths of allegiance and supremacy. as of , persons outlawed could appear by attorney as well as in person to argue reversal of such outlawry, except in cases of treason and felony. as of , persons accused of high treason where there might be corruption of the blood or for misprison [concealing knowledge] of such treason had to be taken before a grand jury for indictment within three years of the offense. those indicted or outlawed for such were given a copy of the whole indictment, but not the names of witnesses, at least five days before trial in order to prepare their defense. they could have a copy of the panel of jurors at least two days before trial. they could be represented in their defense by not more than two counsel learned in the law and assigned by the court. their counsel had free access to them at all reasonable hours. they could make proof through lawful witnesses under oath. in a trial of commoners for their lives, a jury of twelve freeholders had to all agree on acquittal or conviction. in a trial of a peer, the others peers in parliament determined the outcome by a majority vote. jurors were required to have at least pounds income from freehold land or rents in fee, fee tail, or for life. this increase in the quality of the jury enabled it to better discern the issues in dispute. jury sympathy was determined by the sheriff who chose the jury. so if a sheriff was popularly elected, as in london, he chose jurors who favored individual and corporate liberty. if the king selected the sheriff, he chose tories, who supported the crown. issues of bastardy or lawfulness of marriage had to be tried by a jury. the civil suit of trespass on the case branched into assumpsit [a promise], trover [to recover goods converted to the use of another], deceit, negligence, and libel and slander. the latter supplements bad words punished by the local courts and defamation punished by the church courts. trover becomes the normal mode of trying the title to personal property and goods as the courts oblige the defendant to answer the charge of conversion without permitting him to dispute the loss and finding of the goods by the plaintiff. this is an example of the initiation of a suit by a writ for trespass on the case: "the king to the sheriff &c. as in trespass to show: wherefore (e.g.:___) he fixed piles across the water of plim along which, between the humber and gaunt, there is a common passage for ships and boats, whereby a certain ship, with thirty quarters of malt of him the said a, was sunk under water, and twenty quarters of the malt of the price of one hundred shillings perished; and other wrongs &c. as in trespass." this is an example of a writ for trespass on the case in assumpsit: "the king to the sheriff greeting &c. as in trespass to show: wherefore whereas he the said x undertook well and competently to cure the right eye of the said a, which was accidentally injured, for a certain sum of money beforehand received, he the same x so negligently and carelessly applied his cure to the said eye, that the said a by the fault of him the said x totally lost the sight of the said eye, to the damage of him the said a of twenty pounds, as he saith, and have there &c. wherefore whereas he the said x undertook to make and build three carriages for conveying victuals of him the said a to parts beyond the sea for a certain sum of money beforehand received, within a certain term between them agreed; he the said x did not take care to make and build the carriages aforesaid within the term aforesaid, by which he the said a hath wholly lost divers his goods and chattels, to the value of one hundred marks, which ought to have been conveyed in the carriages aforesaid, for want thereof to the great damage of him the said a as it is said: and have there &c." this is an example of a writ for case on indebitatus assumpsit: "the king to the sheriff &c. as in trespass to show: for that, whereas the said x heretofore, to wit (date and place) was indebted to the said a in the sum of for divers goods wares and merchandises by the said a before that time sold and delivered to the said x at his special instance and request, and being so indebted, he the said x in consideration thereof afterwards to wit (date and place aforesaid) undertook and faithfully promised the said a to pay him the said sum of money when he the said x should be thereto afterwards requested. yet the said x, not regarding his said promise and undertaking but contriving and fraudulently intending craftily and subtly to deceive and defraud the said a in this behalf, hath not yet paid the said sum of money or any part thereof to the said a (although oftentimes afterwards requested). but the said x to pay the same or any part thereof hath hitherto wholly refused and still refuses, to the damage of the said a of ------ pounds as it is said. and have you there &c." this is an example of a writ for case for trover: "the king to the sheriff greeting &c. as in trespass to show: for that, whereas the said a heretofore to wit [date and place] was lawfully possessed as of his own property, of certain goods and chattels to wit, twenty tables and twenty chairs of great value to wit of the value of ___ pounds of lawful money of great britain; and, being so possessed thereof he the said a afterwards, to wit (date and place aforesaid) casually lost the said goods and chattels out of his possession: and the same afterward, to wit (date and place aforesaid) came into the possession of the said x by finding; yet the said x well knowing the said goods and chattels to be the property of the said a and of right to belong and appertain to him, but, contriving and fraudulently intending craftily and subtly to deceive and defraud the said a in this behalf, hath not as yet delivered the said goods and chattels, or any part thereof, to the said a (although often requested so to do) but so to do hath hitherto wholly refused and still refuses; and afterwards to wit (date and place aforesaid) converted and disposed of the said goods and chattels to his the said x's own use, to the damage of the said a of ____ pounds as it is said; and have you there &c." the rigid writs with specific forms of action for common law cases started to fall into disuse. later, trespass on the case bifurcates into misdemeanor and the tort of trespass. persons in prison on suspicion of treason could not be released on bail as of . if one of several defendants of a case was acquitted, all defendants recovered their costs from the plaintiffs. a person found guilty of malicious prosecution recovered his costs from his accuser. mercantile cases were decided in light of mercantile custom rather than according to the strict rules of the common law. merchants and traders could settle their trade disputes by arbitration, which decision could be enforced by court order. the chief justice could empower persons by commission to take affidavits from people in the country for court proceedings in westminster. judgments were docketed so they could easily be found e.g. by heirs, executors, administrators, purchasers, and mortgagees. court judgments and fines could be challenged for error only within twenty years. court decisions were still appealable to the house of lords. in , skinner v. east india company held that the house of lords could not exercise original jurisdiction in civil cases between commoners as it had claimed, but retained its appellate jurisdiction. in , the house of lords acquired the new judicial function of hearing appeals from the chancery court by virtue of the case of shirley vs. fagg. any gaol keeper allowing a prisoner to escape in return for money lost his office forever and had to forfeit pounds. the last burning of a woman as a penalty for an offense, which had been only occasional, was in . the last bill of attainder, which condemned a person to death, occurred in . the pillory was still in use. benefit of clergy was taken away from those who stole cloth or woolen manufactures from their drying racks or who embezzled military stores or ammunition worth at least s, or stole goods of over s. value from a dwelling house with a person therein put in fear, a dwelling house in daytime with a person therein, or by day or night a shop or warehouse. a statute of gave jurisdiction to naval courts-martial to decide cases at sea, e.g. insubordination; failure to fight the enemy, a pirate, or rebels; not assisting a friend, mutiny, drunkenness, creating a disturbance to protest the quality of the food, quarreling, sleeping on watch, sodomy, murder, robbery, theft, and misdemeanors. usually the penalty was to be determined by the courts-martial, but sometimes death was decreed. in the american colonies, judges were still appointed by the royal governors and paid by the local legislatures. they still served at the pleasure of the king. chapter the times: - dress was plainer than before. gentlemen wore white linen shirts; waistcoats fitted at the waist and covering the trunk at least; long lawn ties wound around the throat and tied in front with the tails tucked in, knee-length coats that were wide in the skirts and in the sleeve cuffs and having large gold, silver, or bronze buttons which didn't reach to the buttonholes on the other side of the coat; knee breeches of cloth, knitted wool, thread, and silk; and silk stockings rolled up at the knee. some shoes had metal buckles. gold fobs with watches or seals hung from the breeches pocket. the clothes were made of silk, satin, or velvet and often in colors such as yellow, orange, scarlet, blue, violet, pink, and dull slate, and decorated with gold and silver trimmings. a slender sword was worn on the side. short wigs, often powdered with heavily scented white or gray wheat flour, with rolls over the ears and hair tied at the back, were worn for formal occasions. wigs were made of human, horse, goat, or cow hair, or mohair, worsted, silk, or wire. sometimes feathers and cork were also used. there were new colors and cuts of dress for every season. by , wearing a sword was just a symbol of gentility. gentlemen often had valets to help them dress. ladies wore fitted full-length dresses held out by hoops with shoulders hidden, sometimes with a laced bodice with stays, and lace at the neck. the waistline fashion fluctuated between high and low and in tightness. the dress could be brocade, satin, velvet, silk, etc. some put jewels in their hair and had high elaborate hats with wide brims tilted forward. hair was in ringlets at the side or dressed close to the head with a small top knot covered with a laced cap. they also wore wigs when dressing up, decorated with ribbons and artificial flowers. hooded cloaks were used outdoors and hoods were used for sun or wind. they carried leather purses with gloves at elbow length. both gentlemen and ladies wore cosmetics and face patches and used tooth powders, breath sweeteners, lip salves, and choice perfume. some had false teeth of bone or ivory wired into place. both gentlemen and ladies had accessories such as fans, handkerchiefs, head scratchers, and elaborately designed snuff boxes, patch boxes, and perfume containers. both sniffed tobacco snuff but only men smoked it. they walked with tall, elegant canes, and women also carried parasols. hats were made of wool and hair of beaver, rabbit, or camel. a popular hat was three-cornered, and usually of beaver or dark felt. there was often a rosette or such to show one's political opinion. straw hats were worn in the summer. there were ready-made clothes and shoes, especially for children. night gowns and night caps were worn to bed. about , umbrellas for rain were introduced. they were made of waxed silk or taffeta. all but the poorest wore silk and lace. a prosperous countryman wore riding clothes consisting of breeches and boots, cut-away coat, and low top hat. the highest class were the peers and peeresses of the house of lords and their spouses and families. they were the nobility and held the high political offices, the high ranks in the army and navy, and owned large estates, usually scattered over the country. some were lawyers or merchants. there was much intermarriage among these families. indeed, many a noble family had salvaged its fortunes by marriage to a london merchant. the richest people in london were international merchants. these high class families lived in mansions with four or five living rooms, two to five acre gardens, and stables. the next class were the gentry. their family heads had land and were often justices of the peace. they were sometimes members of the house of commons. the oldest son took over from his father, while the others had to find a living such as in the church, law, medicine, or trade. the gentry usually lived in mansions. the old yeoman class was disappearing due to their selling their land to larger landowners. farming on a large scale was more productive. the next class were the "middling sort". in this class were merchants, lawyers, substantial tenant farmers, smaller freeholders, millers, innkeepers, in town traders, middlemen, clothiers, ironmongers, goldsmiths, grocers, linen drapers, apothecaries, school masters, clerks and civil servants, customs and excise men, and .shopkeepers, who now kept their wares inside and lived on the second floor. the town people lived in town houses of two stories plus an attic. the next class were the manual workers. these were wage earners or independent craftsmen, farriers, rural smiths (who shod horses and made stair rails, window-bars, torch extinguishers, lamp irons, bells, bolts, hinges, locks, and fire-grates), sawyers, carpenters, joiners, wheelwrights, nail makers, brick makers, plumbers (made lead cisterns, kitchen sinks, rainwater heads, drain pipes and lead flats for houses and ornaments), thatchers, spinners (silk, flax, hemp, wool, hair), dyers, wool combers, weavers, shoemakers, hat makers, belt and buckle makers, dressmakers, milliners (hats, caps, bonnets, cloaks, hoods, muffs), feather workers, button makers, lace makers, steel pin makers, brewers, cutlery makers, soap makers, candle makers (made from beeswax, tallow, mutton-fat, or beef-drippings), comb makers, barber/hairdressers (shaved, cut hair, made wigs and braids, and let blood), curriers, leather workers, carpet weavers, paper makers, tin-plate makers, printers, enamel workers, braziers and coppersmiths (made kettles, saucepans, canisters, milk pails, lanterns, candle boxes, candle sticks, and lamp lighters), basket makers, jewelers (made rings, perfumes, match boxes, buckles, and tops of canes), watch and clock makers, type founders, letter cutters, trunk and chest makers, cabinet makers, saddlers, coach body builders, coach carriage makers, shipwrights, rope makers, and sail makers. these workers typically worked in their stone or brick houses in a rural setting, with gardens, a cow, a horse, pigs, and poultry around them on - acres. they now ate white or wheaten bread instead of rye bread, much meat and cheese, and drank tea. working men could now afford leather shoes. these people also worked in the harvesting of grain. some consolidation of work was starting. for instance, the weaver, who had furnished himself with warp and weft, worked it up, and brought it to market himself was being displaced by weavers who worked under supervision for one merchant in a town on looms the merchant had acquired. many women and children were so employed. it was not unusual for a man to work hours a day for days a week. the wage earners were well above the subsistence level as long as trade was good. real wages were higher than at any time since the mid- s. but eventually, as the employer came to realize how dependent the weaver had become on him, wages tended to fall. in a gloucester weaver, with his wife to help him, could earn, when work was good, from s. to s. a week. a few years later, he could only earn about s. a woman spinner earned - d. a day in , but - d. in . in the same period, men's wages fell from d. to d. a day. only certain workers, whose special occupation needed greater skill, e.g. the wool-combers, whose wool was longer and of better quality than carded wool, and shearers, were better paid. in , wool combers made s. a week; their wage was about the same all over the country because they traveled form town to town in search of work and always supported each other. also in , newcastle miners earned s. a week, sheffield cutlers s. d. a week, a rotherham blacksmith s. a week, a furnace keeper at horsehay about s. a week, a staffordshire potter from - s., a witney blanket weaver or a wilton carpet weaver s. or more a week, a manchester cotton weaver from - s. a week, and a leeds cloth weaver about s. in this class also were ploughmen, cowmen, dairymaids of the bigger farms. they had cottages of wood, clay, and straw, with clay floors and low ceilings, and a divided ground floor. a few had homes built of stone, covered with slate or thatch. wages of industry were higher than those of agriculture. in , a day laborer earned - s. a week in winter and - s. in summer, without board or lodging. in the short harvest time, he could earn s. a week. lastly were the mass of the population of london: hordes of laborers who depended on casual employment and could be dismissed at will. about half the population had no resources but their labor, which was usually unskilled and lowly paid. in good times they had just enough to feed themselves. the gap between rich and poor became greater. marriage remained a main way to wealth. also, one trained in the law could aspire to have a successful career in high political office, which also brought wealth. but there was less social mobility than in the previous century and many landed families were consolidating their position. industrialists who had made a fortune for example, in steel, cotton, coal mining, and porcelain, and merchants who wanted to turn themselves into landed gentlemen found it very difficult to buy landed estates. old dissenter families, quakers in particular, who were highly esteemed as businessmen, as industrialists, and as model employers were excluded from the anglican landowning society. rich tradesmen, artists, actors, and writers found it difficult to buy substantial houses in the small market towns and countryside because of an entrenched hierarchical atmosphere there that didn't exist in london. the only gentlemen who were in household service were librarians, tutors, or chaplains. they ate with the family and did not consider themselves servants. servants were kept more at a distance. by the s the servant class was clearly defined. their quarters were moved to the basement of the house and they ate together in the kitchen. but some householders still had special occasions when everyone ate together in the dining room, with the servants at one end of the table. servants had no right to free time or to holidays. in about one tenth of the population in london had servants. even bricklayers and milk sellers had a servant. most families had just one servant. most wives employed some other woman or child to help in washing and scouring or in the minding of the children. london had grown beyond the locations of its walls around the city. london stretched ten miles along the thames, and was three miles wide in the center. on the east of the city was the port and industry. the west side ended at hyde park and regent's park and was residential. in it was still possible to shoot woodcock in regent street. in , westminster bridge was opened. in , the city walls were taken down to ease congestion. the typical london house, usually brick, was on a rectangular plan and had a basement to utilize all the space possible. walls were now more covered with hung damask, brocade, silk, and wallpaper or plain paint rather than by wood paneling. there were pictures on the walls. on the first floor was a front hall or parlor and a back parlor. one of these parlor rooms was the most important room, where the family entertained or spent leisure time. in it were sofas, armchairs, and stools of mahogany or white gilded wood. they were upholstered with damask or needlework. imported mahogany was replacing the favorite walnut that had replaced oak. much wood was inlaid with a variety of other types of woods. there was also a carved tripod table, china table, card table, and perhaps bookcases and/or tea-table. furniture with original designs made by the cabinet-maker chippendale was available. his genius was in combining various motifs into one harmonious design. cabinet makers had to keep abreast of his standards and to imitate them to conform with their customers' orders. cabriole legs with claw and ball feet came into fashion with queen anne about . between windows were tall mirrors. from , glass chandeliers hung from the ceiling to reflect candlelight coming from standing candlesticks or glazed hanging lanterns with brass frames. the fireplace had an elaborate mantel. the fire was kept going all day. it was lit by a tender box, which was unreliable. an iron fireback was behind the fire. the firewood was placed on andirons. fire grates were used from about . at a corner of the building was added a closet. on the second floor was a dining room, continuation of the closet below, and a drawing room, dressing room, or bedroom, and perhaps a study or music room with harpsichord. the dining room had a fireplace; curtains over the windows looped up at the cornices; one or more mahogany tables; a set of mahogany chairs with leather or hair- cloth seats fixed with brass nails, perhaps with some sort of metal springing; two mahogany sideboards with marble tops; cupboards or shelves or cabinets with displays of china porcelain; a wine-cooler; a dumb-waiter; and a folding leather screen. the china, which was displayed, was mostly imported, but there was some english china. later, there was famous wedgwood stoneware and pottery with bright, unfading glaze, or with dull black and red surfaces, biscuit ware of pale green, blue or purple, upon which white designs stood out like cameos. they came from the pottery factory at staffordshire founded by potter josiah wedgwood in . there were silver and pewter plates and serving pieces, silver candlesticks, silver knives, spoons, and two and three pronged forks, glass saltcellars from , and fingerbowls from which one rinsed one's mouth or cleaned one's fingers after dinner which were made of glass from about . on the third floor were bedrooms and a nursery. in the bedrooms, there was a high bed with curtains, canopies, piles of blankets and pillows, and steps up to it; wardrobe; chairs; a hand wash stand; chests of drawers; writing bureau; dressing table with a couple drawers and a mirror; swing standing mirror; tin rush candle canister; and night commode. children and servants slept on low wooden bedsteads. walls were stucco, a form of cement that could be sculpted, or paneled or hung with silk and printed paper. servants, such as the page and footmen, slept in the attic and perhaps in the kitchen or cellar. there was a wood staircase for the family and a back staircase for the servants. the floors and stairs were protected with carpeting. the kitchen was in the basement or in a covered shed in the back. it had an open fire and a tin oven. the cold water tap over the stone sink could supply cold water from a cistern in the basement or hand-pumped to a roof cistern through wooden pipes at very low pressure at stated hours for a fee. there was a wash shed in back. water pumped from the thames into underground pipes was thus distributed to householders three times a week. some water came from a well or spring, rain, and street water sellers. water carriers were still employed at set fees. water was kept in lead cisterns. the wealthy had basement cisterns filled by a commercial company. the free public conduits of water were out of use by . the front door of the house had two strong bolts on the inside and a heavy chain. the windows could be shuttered and barred. there were sash windows with cords and brass pulleys. at the back of the house was a garden and perhaps a coach house or stables. landscaping to reproduce an idealized country scene replaced formal gardens. foreign trees were imported. the latrine was usually not in the house, but somewhere in the back garden area. under it was a brick drain leading to a public sewer or to a cesspool. smelly gases arose from it. sometimes people gathered such waste up to sell to farmers returning home in an otherwise empty wagon. in , patented inside toilets began to be used. each stood in its own room. a watchmaker named alexander cummings patented in the water-closet, which had a stink trap u-bend behind which, after flushing, water resided and prevented the backflow of noxious sewer gas. its pans and overhead cisterns were made of pottery. they were supported by wood structures. there were better cements for building. chinese porcelain, embroidery, and lacquer work were popular. furniture and landscaped gardens were often done in a chinese style. many of the well-to-do now lived in districts without as well as within the city limits. many streets east of the city were named after the governing families whose estates were there. their mansions had interior columns, archways, marble halls and fireplaces, carving, gilding, rich colors, and high ornamented ceilings. they each had a picture gallery, a library, stables with coachmen, grooms, and stableboys, and a still-room for concocting liquors and cordials such as cherry brandy, sloe gin, and elderberry wine. medicine and scents were also developed in the still-room. hands were washed in bowls held up by wooden stands. there were built-in bathtubs, but they usually lacked hot and cold running water, so hot water usually had to carried up to them. in these mansions, there were many private parties and balls. the standard for politeness here was high and gentlemen were expected to keep their tempers. this came about because impoliteness could easily lead to a quarrel and then a duel. the pistol was replacing the sword as the weapon of choice for duels. good manners developed for all occasions, with much less swearing and less rudeness. by gentlemen's agreements, men did favors for each other without a monetary price, but with the expectancy of a favor in return. the love of one man for another was recognized as the highest and noblest of human passions. people of high social standing left their country estates to spend the winter season in their townhouses in london with its many recreations such as receptions, routs ]fashionable gatherings], levies, masquerades, balls, dinner parties, clubs, pleasure gardens, theaters, shops, shows, taverns, and chocolate and coffee houses. coffee houses provided turkish coffee, west indian sugar and cocoa, chinese tea, virginia tobacco, and newspapers. they were frequented by learned scholars and wits, dandies, politicians, and professional newsmongers. men of fashion often engaged in wagers and gambling at their clubs and coffee houses. there were wagers on such matters as the longevity of friends and prominent people, fertility of female friends, wartime actions, and political matters. gentlemen often had valets. carriage by sedan-chair was common. in , buckingham house was bought as a palace for the royal couple. physicians and lawyers lived in two-story brick mansions with attics and sash windows that could be lifted up and down with the help of a pulley. they had rectangular wood panes each with a sheet of glass cut from a circle of blown glass. the old blown glass was not regular, but had a wrinkled appearance. the center of each pane of glass was thicker with a knot in the middle left from the blow pipe. in front of the house were railings which supported two lanterns at the doorway. people from different parts of london differed in ways of thinking, conversation, customs, manners, and interests. for instance there were sections where sailors lived, and where weavers, watchmakers, and cow keepers each lived and worked. there were many specialized craftsmen who worked with their own tools in their own shops or houses, for some superior who had contact with the market and who supervised the final processes of manufacture. these included the goldsmiths, upholsterers, coach makers, saddlers, and watchmakers, all of whom had many dependents. the watchmakers had specialists making wheels, pinions, springs, hands, dials, chains, keys, caps, and studs in their own houses. the type of industrial organization most common in london was that in which work was given out to be done in the homes of the workers: the putting out system. some industries, such as watchmaking, silk weaving, and shoemaking were on both a putting out system and a system of an apprenticeship to journeymen working on piece work. shoes were made to order and ready made. the customer was measured in a shop, the clicker cut out the upper leathers, which were given to the closer to be closed, and then to the maker for the sole and heel to be put on. another class of shoemaker worked alone or with an apprentice in a garret, cellar, or stall, using pieces of leather cut out for him by the currier or leather cutter. london industries included the making of bread, beer, spirits, and vinegar; sugar refining; tobacco refining and snuffmaking; spinning and/or weaving of woolens, worsteds, silk ribbons, tape, and cloth; and making printed calico, clothes, linens, laces, tassels, fancy embroidery, stays, stockings, hats, shoes, leather goods such as boots, shoes, hats, gloves, harnesses, and saddles, jewelry, glass, candles, tapestry, musical instruments, cutlery, furniture, paint, varnish, paper, tools, swords, guns, heavy artillery, ships, sails, rope, carriages, precious and base metalwares such as brass and pewter ware, and printer's ink and glue; printing; and publishing. surgical instruments made included straight and curved knives and probes, lancets, scissors, spatulas, trepans (for cutting bone), and cupping cases. optical instruments made included eyeglasses, telescopes, and microscopes. in eyeglasses were held in place by frames that went over the ears, which replaced unreliable cords over the ears and leather straps tied behind one's head. also made were nautical instruments, quadrants, sundials, sectors, globes, scales, model solar systems, and air pumps. in london, the old distinction between craftsmen and laborers was blurred by the existence of trades which employed workmen under a skilled foreman instead of journeymen who had served an apprenticeship. these trades were, on a large scale, new. among the most important of these trades were the distillers and brewers of liquors, the tobacconists and snuff makers, the sugar refiners and soap boilers, the vinegar makers, and makers of varnish, glue, printers' ink, and colors. the latest chemical theories and the chemical explanation of dying brought about the invention of new colors and new processes in dying cloth. workers in these trades were considered as laborers, but their wages were high and their positions relatively secure. they learned their jobs by doing them. the older trades of a similar character, such as tallow melters and chandlers, wax chandlers, fellmongers [removed hair or wool from hides in preparation for leather making], and the tanners, employed journeymen. the skilled artisan who worked at home and either made goods for a master or sold to the trade verged into the shopkeeping class. on the other hand, the lowest type of shopkeeper, the chandler, the dealer in old iron, the tripe shop, the milk retailer, the keeper of a cook shop or a green cellar belonged to the class of casual and unskilled labor. the lowly chimney sweep, paid d. a day, served an apprenticeship as a boy, and then was his own master. the watermen and lightermen, by virtue of their fellowship and their apprenticeship and often the ownership of a boat, belonged to the class of skilled laborers. craftsmen in the building trades and paviours had their laborers as smiths had their hammermen to do the heavy work at laborers' pay. the street ragpickers, the ballad sellers, and the match sellers belonged to the class of beggars. there were buildings for boiling and distilling turpentine, for casting brass or iron, and for making glass for chemical works for sale. working women in london in were employed in domestic service: %, nursing and midwifery: %, cleaning and laundry: %, vitiating: %, shopkeeping: %, hawking: %, and textiles: %. those employed in domestic service were mostly young women who later married. some women were schoolteachers, innkeepers, or manufacturers, which were middle-class employments. many women in the realm engaged in a variety of occupations from fanmaking and hairdressing to catering, and, as widows, often carried on their husband's trade, including bookselling, hatmaking, building or ironmongery. although shops still had small frontages of about feet and the windows had small panes of bottle glass which partly obscured the view of the goods, there were magnificent shops with large windows displaying fine goods. there were bookshops, and print shops with prints of political satire with caricatures. the shops were generally open six days a week from a.m. to p.m., and years later to p.m. in josiah wedgwood opened a showroom in london for his high quality pottery from staffordshire. consumption was on a mass scale, many people buying what they wanted instead of just what they needed. there were circulating libraries, public concert halls, and professional boxing matches. at coffee houses, chocolate houses, and taverns, people played at dice and cards, gambled, talked politics and read daily newspapers, in which there was advertising, reports of marriages and deaths, grain prices, and book reviews. different professions and classes and groups, such as the whigs, the tories, classical scholars, scientists, clergymen, intellectuals, actors, writers, and journeymen of particular crafts, had their favorite meeting places. coffee houses reflected the character of their neighborhoods. they acted as postal centers, lost property offices, business addresses, physicians' consulting rooms, lawyers' and merchants' businesses, matrimonial agencies, masonic lodges, auction rooms, and gambling dens. some retained a supply of prostitutes. many taverns had a rentable private room for the better-off to drink wine, have meals, meet friends, gamble, do business, and hold meetings of societies and clubs, especially political clubs. from this beginning sprang private clubs such as the blue stocking club in and the literary club in , lloyd's for sale and insurance of ships in , and the stock exchange in . the blue stocking club was established by women who organized conversational parties with guests of intellect and wit. there was opera, playhouses, concerts usually with georg handel's oratorios such as the messiah or the foreigners bach and haydn, tea-gardens, fire works, balls, masquerades, wax works, beer shops, and bawdy houses, except on sunday. there were straight plays, comic operas, and melodramas. three-dimensional sets replaced the two- dimensional backdrop. plays containing thinly veiled satires on politicians were becoming popular. some plays had crude and licentious material. theaters still shared a close association with brothels. unlicensed theaters were closed down by a statute of , but most came to acquire patronage to get a license. this shaped the development of drama in london for a century. the beggar's opera depicting an immoral society unable to master its bandits was written by john gay as a powerful attack on a government which most of london hated. with its many ballads it became very popular. one such ballad goes: "through all the employments of life - each neighbor abuses his brother; whore and rogue they call husband and wife; all professions be-rogue one another. the priest calls the lawyer a cheat, the lawyer be-knaves the divine; and the statesman, because he's so great, thinks his trade as honest as mine." another is: "a fox may steal your hens, sir, a whore your health and pence, sir, your daughter rob your chest, sir, your wife may steal your rest, sir, a thief your goods and plate. but this is all but picking, with rest, pence, chest and chicken, it ever was decreed, sir, if lawyer's hand is fee'd, sir, he steals your whole estate." the thames was crowded with sailing boats and with a line of boats waiting to unload. foreign and native ships lined the river banks in rows. theft of cargo from docked ships was still a problem and pirates were still executed at low tide on gallows. londoners went to the bridges crossing the thames to breathe fresh air. london air was so smoky and polluted by coal-burning in kitchens and factories that it gave a cough to newcomers. the river was so polluted by the sewers by that all the swans and most of the fish had disappeared. a mansion house was built for the mayor in . the king's zoo had ten lions, one panther, two tigers, and four leopards. deer hunting in hyde park was now confined to its northwest corner, which was enclosed for the king, who occasionally hunted there. elsewhere in the park were laid out walks and fountains. gardens were now natural instead of formal. the streets were usually crowded with people and traffic. many people traveled by sedan chair. on the streets were barrows with goods such as lace, threads, fruits, and chickens; beggars, ballad singers, musicians, bands, street dancers, apple women, piemen, muffin men, fruit sellers, nut sellers, pudding sellers, milk maids selling milk from buckets, milk sold directly from the cow, vendors of asses' milk, hawkers, newspaper boys, scavengers with carts, postal collectors, lamplighters on their ladders, wenches, chimney sweeps, rat catchers, pick pockets, swaggering bravados, strolling strumpets, brawling watermen, card sharps, overdressed beaux, dancing dogs, and acrobatic monkeys. each trade had it own call. billingsgate open-air market was now exclusively for the sale of fish. small tradesmen such as dairymen, butchers, bakers, fishmongers, and chandlers delivered to regular customers food bought from distributing centers. workers by necessity lived near their place of work because there was no cheap transport and walking through the streets after dark was unpleasant and dangerous. hours of work for most craftsmen was from a.m. to p.m., six days a week. it was common for working class families in london to live in a single room of their house and rent the rest, furnished, to people of different degrees of prosperity and even of different social grades. servants and apprentices slept in the kitchen, the shop, or the garret. the very poor, such as casual laborers and street sellers, silk winders, charwomen, usually lived in damp cellars subject to floods from excessive rain, or in cold and windy garrets. tenancy was usually on a weekly basis because of the general uncertainty of life and trade. conditions were so cramped that cabinet makers made beds which masqueraded in the day time as tables, bureaus, cupboards, or bookcases. the very poor slept in common lodging houses, sleeping uncovered on the floor, twenty to a room. some poor families slept in small hovels made of mud and straw with their pigs, domestic fowl, dogs, and even asses and horses. homeless children slept on the streets. all classes lived so much at coffee houses, alehouses or clubs, which they often used as their addresses, that house room was a secondary consideration. there was an alehouse on almost every street in london to provide cheap food and beer, lodging, employment information, credit, newspapers, tobacco, and meeting places for tradesmen. some alehouses were recognized employment agencies for certain trades, such as the hatters, smiths, carpenters, weavers, boot and shoe makers, metal workers, bakers, tailors, plumbers, painter and glaziers, and bookbinders. they were often run by one of the trade, retired or otherwise. some alehouses catered to criminals and prostitutes. for cheap and simple eating there were chophouses, cookshops, and beef steak houses. there were about , english immigrants a year to london in the s. they were mostly young people. london needed many immigrants because of its high death rate. over twenty london people a week died from starvation alone; they were mostly women. only about one-fourth of london's population had been born in london. especially welcome were sturdy country people for heavy manual labor, the better educated boys from the north for shops and offices, and the honest country people, as contrasted with london's poor, for domestic service. girls mostly looked for domestic service, but were sometimes made the mistress of the housekeeper or steered into prostitution as soon as they entered the city. an ambitious young man would seek an apprentice job, work hard, flatter his master, and try to marry his master's daughter. it was easier to find a place to live in london than in the villages, though there was much overcrowding. many shopkeepers and workshop owners in london were involved in leasing, purchases, and contracts. queen anne was authorized by parliament to build about more churches in london and westminster and their suburbs, to be paid for by a coal tax on imports into the port of london. churches in london were to be rebuilt with money paid by funeral rates, rates for tolling the bells, and rates for the use of palls [altar cloths]. queen anne also appropriated all her revenues from the first fruits and tenths of ecclesiastical benefices: , pounds, to the clerical poor in . there were fewer quarrels among passersby on the london streets; men were less likely to wear their swords. but there were fist fights by common men which gathered crowds and occasioned betting. most crime was petty theft, but mobs and riots were frequent, as there were no police. watchmen and constables were often old and physically incapacitated. the watchmen were householders taking their turn. this duty of householders watching the streets had evolved from the ancient obligation of wards to provide men to guard the walls at night. but few wanted these jobs by which they could offend their neighbors. many citizens paid a rate to be excused from watch and ward duty. constables were often tavern keepers. many riots were started when penal laws against the catholics were repealed. they began with the cries of "no popery", but then targeted rich men's houses. mobs sacked and pillaged at will, burned houses, and flung open the prisons to increase their numbers. there were political riots between tories and whigs. working men still used violence to protect their livelihoods, such as destroying the lodgings and public houses of cheap immigrant labor such as the irish. the stocking-knitters destroyed stocking-knitting frames so that the number of apprentices who could be employed would not reach the limit specified by its guild's regulations. parish workhouse children also provided a cheap supply of labor which forced down the wages of the stocking knitters. in a statute banned wearing of calico after mobs tore calico garments off women. in , thousands marched on parliament and persuaded it to ban foreign silk imports. but when a mob destroyed engine-looms, the army was used against the rioters and two of them were hanged. this was the last major mob action. around the tower, there were still demagogues standing on upturned carts haranguing passing crowds. the tower area was a favorite place for demonstrators, and for unemployed and dissatisfied workmen, particularly coal heavers and underpaid seamen protesting their low pay and poor living conditions. there was more crime, especially at night, now with organized bands of men or gangs of children. bounty hunters made a lot of money catching offenders. in , to deter the frequent robberies, burglaries, and other felonies at night, many glass lamps were set up in places determined by the mayor. they had to burn from sunset to sunrise. in , a lighting rate was imposed by the city to pay for all night lighting all year by hired lamplighters. anyone breaking or damaging the lights of london would forfeit s. for the first offense, s. for the second offense, and pounds for the third offense. the aldermen had to contract to pay for lighting, trimming, snuffing, cleaning, supplying, maintaining, and repairing them. to pay for this system, citizens paid according to the amount of rent their holdings were worth. if they didn't pay, they could not vote. bad areas of thieves and prostitutes and the slums east of the city were gradually being replaced by warehouses and offices. in , london bridge was widened and the houses were cleared off it. there were lanes for carriages in the middle and for pedestrians on each side. its arches were also widened to make the passage of vessels underneath easier. lights were put on it to be lit all night. and watchmen were put on it for protection and safety of passengers. this was paid for by tolls of / d. per horse, d. per carriage, and d.- s. for vessels with goods passing underneath. about , a body of enterprising citizens secured private acts of parliament which allowed them to levy a house tax in return for providing paving and lighting, which then greatly improved, as did sanitation. sidewalks were raised between the street proper and the buildings, replacing the protective posts which had lined the roads. flat stones were put in place of the pebbles on the roadway. signs hanging out from stores, which had blocked the sunlight, were placed flat on the front of the buildings. this also made the streets more airy. the buildings were given numbered addresses and street names were placed on buildings. loading and unloading could not exceed one hour. nuisances like empty carts could be removed. cranes used in warehouses had to be stored in unobtrusive places. one who drove on the foot pavement had to forfeit s. for the first offense, s. for the second offense, and s. for other offenses. wells were dug and pumps erected for watering the streets. pavements were to be repaired on complaint. dust boxes and dust holes were built and had to be used for refuse awaiting pickup by the raker or else forfeit s. in , the system of having every man responsible for cleaning the street in front of his door, which occasioned piles of rubbish in the central troughs of the streets waiting for the next rain to be washed away, was abandoned. but house occupants were required to keep the sidewalk in front of their house clean or else forfeit s. if one broke a light, he had to pay damages if it was accidental, and also s. if willful. wards were to choose substantial inhabitants to be collectors for a year at a time to collect the rates, which were not to exceed s. d. per pound of rents. if one declined to be a collector, he had to forfeit pounds. there were special stands for hackney coaches, which were s. d. for a day of twelve hours. their regulations were extended to sundays. in london, the normal system of building was for builders to buy up leases, put up a new building, and sell it before the lease became due. the rules for party walls between buildings were made more stringent: / bricks thick in cellar, bricks thick to the garret floor, and / bricks above the roofs or gutters. they had to be made of brick or stone. in , rain water from roofs had to be carried to the streets in lead or other pipes that were affixed against the side of the building. in , iron, copper, or other pipe or funnel for conveying smoke or steam were not to be near any inside timber, or in front of most any building or next to any public street, square, or court. in the s firefighters had to fill a tank on a wagon by hand with buckets. on top of the tank was a hose that could spray water high. london parishes were authorized to place upon the water pipes underground stop-blocks of wood with a plug and firecocks to go into such pipe at various distances so that there would be no loss in time in digging down to the pipes to get water to fight fires. parishes were required to keep at known places, ladders and a large engine and a hand engine to throw up water to extinguish fires including one leather hose with socket fitting the plug or firecock, so that buckets would not be needed. the sun insurance company was incorporated for fire insurance in . insurance offices were authorized to employ watermen with poles, hooks, and hatchets to be always ready at a call to extinguish fires. no more than sacks of meal, quarters of malt, bricks, or chalder of coal per load on wagons or carts with wheels bound with [narrow] iron tire are allowed within ten miles of london or westminster, or else forfeit one horse. this is to prevent decay of the roads. for every wagon and cart in london, there must be a person on foot to guide it to prevent the maiming, wounding, and killing of people, especially the old and children, when drivers ride on their wagons and carts. later, it was required that carts must display the name of the owner and be registered. still later, there was a penalty of s. for not having a person on foot to guide any cart. later still, in , if a new owner of a cart did not put his name thereon, he had to forfeit s., and the cart and horse could be seized and sold to pay the forfeiture. persons willfully obstructing passage on streets with empty carts or barrels or pipes shall forfeit - s. or do hard labor up to one month. the justices of london assessed rates and made regulations for carriage of goods. certain houses and buildings were bought and pulled down to widen several streets, lanes, and passages. in , persons driving cattle in london, whose negligence or improper treatment of such cattle cause them to do mischief shall forfeit - s. or else go to a house of correction for up to one month or be publicly whipped. the roads around london were neither very attractive nor very safe. along them was land covered with water from drains and refuse and dung heaps. hogs were kept in large numbers on the outskirts and fed on the garbage of the town. smoking brick kilns surrounded a great part of london. in the brickyards vagrants lived and slept, cooking their food at the kilns. queen anne's drinking of tea made it a popular drink, but it was still expensive. this habit improved health because to make tea, the water had to be boiled before drunk. breakfast included tea and bread and butter, and later toast with melted butter. the rich also had coffee and chocolate. the morning newspaper was often read at breakfast. the chief dinner dishes were roast beef, roast mutton, boiled beef or pork, with puddings and vegetables. roast meat was still the basic diet of town and country gentlemen. there were also fowls, tripes, rabbits, hares, pigeons, and venison. many elaborate sauces were made. the national dish was the pudding, a compound of steak, kidney, larks, and oyster. drinks included ginger beer, lemonade, barley water, coffee, chocolate, tea, and foreign wine. port from portugal was introduced about , and rum about . rum, made from sugar, first became popular as a medicine, well-whisked with butter. beer was drunk by the poorer and middle classes. the poor could afford very little meat now, unlike years ago. their standard fare was cheese, bread, and tea, the latter of which was usually from used tea leaves bought from rich houses. households were smaller; a peer had a household of about - . the proportion of women in a household grew to one-third to one-half. dinner guests sat and were served in order of rank, with gentlemen on one side of the table and ladies on the other. later, a fashion came in to sit alternately by sex. dinner was in several courses and lasted a few hours. toasts might be made. it was bad manners to put one's elbows on the table, to sniff the food, to eat too slowly or too quickly, to scratch, spit, or blow one's nose at the table, or to pick one's teeth with a toothpick before the dishes were removed. after dinner, the men drank, smoked, and talked at the table. there was a chamber pot under the sideboard for their use. politics was a popular subject. the women talked together in the drawing room. later, the men joined the women for tea and coffee. the evening often finished with card games, reading newspapers, verse-making, fortune-telling, walks in the garden, impromptu dancing, perhaps gambling, and supper. the nobility and gentry became more mobile and now mixed together at parties. at these afternoon parties, there were a variety of simultaneous activities, instead of everyone participating in the same activities together as a group. guests could choose to engage in conversation, news, cards, tea-drinking, music, dancing, and even go into supper at different times. sometimes a man other than her husband escorted a lady to a party. having lovers outside marriage was socially accepted if discrete. single women were discouraged from thinking of their independent status as desirable. their single status was to be regarded as unfortunate. weddings took place in public in church instead of privately. there were banns, or announcements, publicized before the wedding so that anyone who knew of a reason why the marriage should not take place could speak up. brides wore a white silk or satin dress with a train. over one third of brides who were capable of having children were already pregnant when they married. in a marriage statute required licenses to marry, the consent of parents or guardians for minors to marry, the calling of banns, and four weeks residence in the parish where the license was given by bishop or other authority. these requirements addressed the problems of the kidnapping of heiresses, prostitutes trapping unwary youths after getting them drunk, and priests performing marriages clandestinely and not in church, which required banns. two witnesses to the marriage were required to sign a certificate of marriage, which was then to be registered in the parish books. manufactured goods relieved ladies from baking of bread, brewing, and spinning. so they often visited with friends, wrote letters, embroidered, and supervised the servants. funerals ceremonies started with socializing at the house with refreshments, then going in a procession to the church for burial, and finally returning to the house for more socializing. it was possible for a woman-covert to be seized of land in fee simple or in tail general or special to her separate use, free from control or intermeddling of her husband. houses were warmed in winter by burning coal. moderate homes had tent-beds in use, with which cloth was hung on all four sides of the bed from a light iron framework above the bed. the beds were warmed with a warming pan heated in a fire before use. there were often bed bugs and fleas. everyone wore nightcaps to bed. pewter tableware was used, but the poor used tinware instead. copper, brass, and iron pots and pans were increasingly common. most towns had a regular market once or twice a week. in them, street cleaning was still a responsibility of individual householders. water was still obtained from wells and pumps. there was no municipal government as such. public works were done by special commissions set up for particular purposes, such as lighting, cleaning and paving the streets, night watchmen, traffic regulation, removing nuisances, and improving local amenities. large towns had hospitals for the poor. in the larger manufacturing towns, there were literary and philosophical societies for debates and discussions. these put together libraries for use of their members. also in these large towns, there were booksellers' shops, printing houses, weekly newspapers, playhouses, concerts, and horseracing courses, the latter of which was mostly patronized by gentlemen. some private citizens of various towns followed the example of london and obtained from parliament the right to levy a house rate for paving and lighting. towns tended to be known for certain specialties, such as seaside holiday resorts, spas like bath, cathedral towns, fashionable shopping for gentry, and towns with certain industries like glass and china manufacture, pinmaking, pottery, tanning, manufacture of linen, silk, cotton, and the knitting trade. certain towns were famous for certain varieties of wool cloth. before , a town with more than , inhabitants was considered a large town. shopkeeping was supplanting fairs and markets. certain industries were done on a large scale and required workers to be at the same site, e.g. brewing and distilling; building ships; printing fustians; making paper, soap from animal fat or candles; coal mining, iron production, mining and smelting of tin and copper, refining of salt, and digging of clay. certain other industries also required some kind of power or team work for their production, e.g. refining sugar; finishing cloth; making bricks; glassmaking; manufacture of ropes and sails, and processing of copper and brass into rods and sheets. often the manufacturer's house was surrounded by the many cottages of his workers. there the wife and children usually were busy carding and spinning. putting out work and subcontracting were widespread and created many small-scale capitalists. workers' hours were typically a.m. to p.m. though grammar schools were endowed for the education of local poor boys, they sought fee-paying sons of gentlemen. they taught arithmetic as well as reading and writing. translation and reading of latin was still important, e.g. aesop's fables, virgil, cicero's letters, caesar's commentaries, horace, pliny, juvenal, ovid, livy, and plautus. the "eton grammar" book replaced the "royal grammar" as the standard for latin and english grammar. the boys lived in boarding houses superintended by "dames" or older boys. there were usually two boys to a bed. there was bullying and initiation ceremonies such as tossing small boys up from a held blanket or having younger boys run naked in the snow. there were occasional rebellions by the boys and fights with the townspeople. flogging with a birch or caning with a rod until blood was drawn from the bare buttocks was the usual punishment. there were some national boys' boarding schools such as eton, winchester, and westminster. in these schools, boys could mix with sons of rich and powerful people, thus establishing important connections for their adult life. but there was more bullying of small boys by large boys at these schools and the smaller boys became menial servants of their seniors. occasionally there were student riots. however, most grammar schools were not residential. because the grammar schools were limited to boys, many boarding schools for girls were established. tradesmen's daughters were often sent to these to learn to act like ladies. most upper class girls were taught, at home or at school, english, writing, arithmetic, drawing, courtly dancing, needlework, music, and french. dissenting academies were established for those who did not pass the religious tests of the grammar schools. pencils were now in use. sons of gentlemen usually took "the grand tour" of the continent before going to university. these tours lasted for months or years, and always included paris and a protestant french university. the students went in groups with tutors. the chief purpose was now cultural, instead of practical. on these tours there was often misbehavior such as drinking and fighting. in , travelers checks were developed for those on the grand tour. the universities began to teach science. the new professorships at cambridge university were: chemistry, astronomy, experimental philosophy, anatomy, botany, geology, geometry, and arabic. ideas in geology challenged the bible's description of the creation of the world and there was a controversy over the origin and nature of fossils. in , a large pointed weapon of black flint was found in contact with the bones of an elephant in a gravel bed in london. oral and written examinations began to replace disputations. few professors lectured. dissenters were excluded from universities as well as from offices and grammar schools. oxford and cambridge universities were open only to members of the church of england, so other universities were established for dissenters. they taught geography, mathematics, science, physics, astronomy, mechanics, hydrostatics, and anatomy. at oxford and cambridge and harvard universities, students in science were relegated to different instructors, buildings, and degree ceremonies than students in literature, who often looked down on them as socially and intellectually inferior. the inns of court had ceased to provide residence. the period of education at law school at the inns of court was now reduced in from seven to five years for ordinary students and to three years for graduates of oxford or cambridge universities. the textbooks were: "doctor and student" by christopher saint-german in and "institutes of the laws of england" by thomas wood in . most landed families tried to ensure that at least one member of the family in each generation was educated at the inns of court after going to oxford or cambridge. in , attorneys formed a "society of gentlemen practitioners in the courts of law and equity". in order to earn a living, most attorneys had to attach themselves to some great patron and serve his interests. so it was hard for an ordinary person to find an impartial attorney or to find any attorney willing to contest a powerful family. the first encyclopedia came into existence in . in was the first public circulating library in london. samuel johnson put together the first dictionary in . it standardized spelling and pronunciation. then came dictionaries for the arts, sciences, and commerce. there were histories with political biases such as the earl of clarendon's "history of the great rebellion". alexander pope wrote witty satire on human faults of the period such as "rape of the lock". daniel defoe wrote "robinson crusoe", "moll flanders", and "the poor man's plea" protesting disparity of judicial treatment of rich and poor, for instance for drunkenness. henry fielding wrote one of the first novels: "tom jones". joseph addison wrote essays on social behavior. jonathan swift wrote the satire on the times, "gulliver's travels". samuel richardson wrote some of the first novels, such as "clarissa"; he wrote on values such as religious faith, moral virtue, and family closeness. catherine macaulay started writing her weighty and impressive "history of england". many schoolmistresses wrote textbooks on a variety of subjects. poet and essayist hester chapone wrote "letters on the improvement of the mind". elizabeth carter wrote poetry and translated greek works; her work was published in "the gentleman's magazine". hannah more wrote the play "the inflexible captive". the diaries of caroline girle powys daniel told of her extensive travels in the nation, and the various life styles of polite society she visited. defoe's newspaper was the first great political journal. he claimed that the people have a right to control the proceedings of parliament. essayists like richard steele, who introduced the periodical essay in his newspaper, and joseph addison, in his newspaper, wrote in a conversational style about the social life around them and the thoughts and behavior of common men and women in a light and good-humored way. they separated humor from the old-style farce and gave it taste and gentility. and with this came a moderation, reserve, and urbanity in matters of religion, politics, and society. religious issues even became a matter of indifference. fairies, witches, astrology, and alchemy were no longer taken seriously by educated men. tales of fairies, witches, ghosts, and miracles were deemed appropriate for children. childrens' stories were becoming a distinct literary form. nursery rhymes included "hush-a-bye baby on the tree top" and the five little piggies. "mother goose's melody" was published in . there were picture books for children such as cinderella, red riding hood, and sleeping beauty. craftsmen made small models of their wares, such as dolls' china, dolls' furniture, silver, and flat lead soldiers. babies had rattles and teething rings. in copyrights for books was given for years, renewable for another years. alexander pope's translation of the iliad and odyssey made him financially independent. he collected advance payments from subscribers who would be listed in the book. a new book industry emerged in london with booksellers as master manufacturers who employed writers, authors, copyers, and subwriters. booksellers sold books of sermons, histories, political and literary satires, literary criticism, and dictionaries. there was a growing popularity of novels. books were expensive to buy. regular magazines on the new and strange were published. there were three daily, six weekly, and ten thrice yearly newspapers. newspapers increased in number from founded in to a total of in . by , there were over a million throughout the country. workmen usually began their day by reading a newspaper at a coffee house. authors of books which have been registered at the stationers hall had the sole liberty of printing and reprinting such book for years. others who printed or sold or published such -forfeited the books and paid one penny for each sheet found in their custody, / to the queen and / to the suer. the printer had to give a copy of each book printed to the company of stationers, the royal library, the libraries of the oxford and cambridge universities, and certain other libraries. in , the two universities in england, the four universities in scotland, and the several colleges of eton, westminster, and winchester were given in perpetuity a copyright in books given or bequeathed to them. the british museum was incorporated to hold the collections of robert cotton of manuscripts, books, records, coins, and medals and of hans sloane, which contained rare books, coins, precious stones, pictures, plants, and mathematical instruments and had been left to the public. italian opera was introduced in by georg handel on his visit to england. his music became the standard music of georgian england. the academy of ancient music was founded in . it set the standard of selection and performance. in existence were the violin (including ones made by stadivari), viola, cello, double bass, oboe, trumpet, clarinet, bassoon, trombone, horn, flute, harp, organ, harpsichord, in which the strings were plucked, and piano, in which the strings are struck by little hammers. orchestras had at least thirty members. many hymns were written. painting by artists developed. gentlemen had portraits painted of their horses and dogs as well as of family. joshua reynolds painted the wealth and beauty of england. painters such as gainsborough did landscapes and dramatic history paintings too, but neither of these sold as well as portraits. scenery was painted for the theater. places of business had signs painted which portrayed animals. coaches were painted with mythological creatures and such. gentlemen collected antique statuary and painting, such as by rembrandt and rubens. in an academy of painting was founded, which included women painters. the first public exhibition of paintings was in . the society of artists was formed in and incorporated by royal charter in . this differentiated them from the painter-stainers company of face painters, coach painters, and house painters. the royal academy of london was founded in to merge all private academies and societies into one official body and to recognize the best artistic work. joshua reynolds was its first president. it was at first financed by the king. under george i, sculptors became distinct from masons. they did monuments and portrait busts of the royal family, nobles, and great men. from italian influence, palladian architecture came into vogue. it was typified externally by a panoramic look achieved by horizontal lines, balanced alternatives of plain wall and openings, and portico with a heavy pediment like the front of a roman temple. stucco was often used to plaster housefronts, flute columns, and ornament pediments. architects took students. designers of engraved, etched, and historical prints were given the sole right to print them for years. copiers had to forfeit s. per print. foreigners were now interested in learning about english life, philosophy, and opinion. they learned english to read english literature such as shakespeare. no longer were france and italy the only centers of culture and influence on other nations. by , england was the leading sea power by far. the royal society was still the principal focus of scientific activity. issac newton was its president for several years and drew in more foreigners. its members were mathematicians, chemists, botanists, physicians, engineers, authors, poets, and theologians. papers given there generated much discussion at its meetings. newton opined that small particles attract each other by some force in a similar way that large bodies attracted each other. this force in immediate contact was exceedingly strong and performed chemical interactions, but at greater distances had no effect. also there were local associations and societies. there were learned journals such as "philosophical transactions". drovers bought cattle in the countryside, drove them to big towns, and sold them to fattening graziers or fatted them themselves. then they were driven into town and sold to the wholesale butcher, who sold the carcass to the retail butcher, the hides to the tanner, and the bones to the glue maker. flocks of geese were also driven into towns, after their feet were given a protective covering of tar. there were also middlemen wholesalers for cheese, butter, cloth, and iron. there was a rage of distemper among the cattle so serious that to prevent its spread, the king was authorized by parliament to make regulations for prohibiting the removal or sale of cattle and for the burial of distempered cattle. later, the king was authorized to prohibit the killing of cow calves. no one was to sell any ox, bull, cow, calf, steer, or heifer until he had possession of such for forty days or else forfeit ten pounds, later, the king was authorized to regulate the movement of cattle from one place to another. the main industry of the country was still agriculture. in the countryside, about half the arable land was under the open field system, in which land was cultivated in common. enclosures of land were still taking place. the enclosures were now done by statutory commissions to ensure equitable allotments. agricultural improvements came first to enclosed land, which comprised about half of the agricultural land. in the , jethro tull published a book about his invention of the seed-drill to first pulverize the soil for cultivation without manure and then to deposit seed at a uniform depth in regulated quantities and in rows instead of being thrown haphazardly. also explained was the horse-hoe to stir the soil about the roots of the plants to preserve moisture, promote aeration, admit warmth, and destroy weeds. there were more horses than oxen in use now in the fields. -the horse-hoe was first used by large independent farmers on enclosed land. also invented was a threshing machine with a set of sticks to replace hand threshing with flails. under-drainage as well as irrigation was practiced. lord townshend alternated turnips, grasses, and grain in his fields, and thus provided winter food for his cattle. the two-field crop rotation with fallow periods was often displaced by the three-field system rotating grain crops, legumes, and fallowness. independent farming gave rise to the improvement of breeds of livestock by selective breeding. enclosed land produced bushels of grain compared to bushels for common field land. it produced pounds of sheep fleece compared to / pounds for common field land. overall, soils were improved by being treated with clay, chalk, or lime. artificial pasture was extended and there was increased use of clover, sainfoin, and rye-grass. grain productivity was four times that of . a fatted ox was pounds compared to the former pounds which it weighed from the s to the s. the fleece of sheep increased fourfold. by statute of , persons having rights of common in certain land may, by the major part in number and in value of each's tenement, enclose such land for planting and growth of timber or underwood. every village had a smith, carpenter, and miller. the larger villages also had a potter, a turner, a malster, a weaver, a tanner, and perhaps a mercer or grocer middleman. wheelwrights made ploughs, harrows, carts, and wagons. ploughs had one, two, or no wheels. poor farming families took up extra work in the villages such as making gloves, knitting stockings, or spinning yarn. craftsmen still helped farmers at harvest time. much of the rural population was now dispersed over the countryside instead of being concentrated in villages because so many small holders had sold out due to enclosures of farm land, especially of common land and waste land. the rural working class lived in two room cottages, with low ceilings, small windows, and an earth floor. patience was required for those willing to wait for an existing cottage in a village to be vacated. most laborers did not marry unless and until they found a cottage. ancient custom that a person could build a home for himself on waste land if he did it in one night was ceasing to be respected. farmers usually preferred employing day-laborers than keeping servants. there were many migrant workers, mainly from ireland, for the busy summer haymaking and harvesting. the children of laborers and of small farmers had little schooling because they were needed for work. they scared the birds, weeded the fields, picked the stones, tended the poultry, set beans, combed the wool, and collected the rushes and dipped them in the tallow. farm people relied on well water or rain water collected in lead cisterns. a farmhouse fireplace had pots hung from iron rods. saucepans sat on iron stands, which were stored above the mantel when not in use. spits were rotated by pulleys powered by the upward current of hot air or by a mechanical device. bacon was smoked in the chimney accessible by a staircase or upper floor. there still existed customary freeholders, who owned their land subject to certain customary obligations to the lord of a manor. the people displaced by enclosure became laborers dependent on wages or paupers. their discontent was expressed in this poem: - "they hang the man and flog the woman - - that steals a goose from off the common - - but leave the greater criminal loose - - that steals the common from the goose." eventually there was some relief given to the poor workers. by statute of , wastes, commons, and fields having several owners with different interests might by three-quarters vote in number and in value of the occupiers cultivate such for up to six years. however, cottagers and those with certain sheep walks, or cattle pasture, could not be excluded from their rights of common. by statute of , the elizabethan statute restricting locations where cottages could be erected and their inhabitants was repealed because the industrious poor were under great difficulties to procure habitations. land could be rented out at ten times the original value. land was typically rented out for , , or years. great fortunes were made by large landowners who built grand country estates. the manufacturers and merchants made much money, but agriculture was still the basis of the national wealth. as the population grew, the number of people in the manufacturing classes was almost that of the agriculturalists, but they had at least twice the income of the agriculturalists. the greatest industry after agriculture was cloth. most of this activity took places in the homes, but families could earn more if each family member was willing to exchange the informality of domestic work for the long hours and harsh discipline of the factory or workshop. more wool was made into cloth in the country. dyed and finished wool cloth and less raw wool and unfinished broadcloth, was exported. bleaching was done by protracted washing and open-air drying in "bleach fields". there were great advances in the technology of making cloth. thomas lombe, the son of a weaver, became a mercer and merchant in london. he went to italy to discover their secret in manufacturing silk so inexpensively. he not only found his way in to see their silk machines, but made some drawings and sent them to england hidden in pieces of silk. he got a patent in and he and his brother set up a mill using water power to twist together the silk fibers from the cocoons into thread -in . his factory was five hundred feet long and about five stories high. one water wheel worked the vast number of parts on the machines. the machines inside were very tall, cylindrical in shape, and rotated on vertical axes. several rows of bobbins, set on the circumference, received the threads, and by a rapid rotary movement gave them the necessary twist. at the top the thrown silk was automatically wound on a winder, all ready to be made into hanks [coils] for sale. the workman's chief task was to reknot the threads whenever they broke. each man was in charge of sixty threads. there were three hundred workmen. lombe made a fortune of , pounds and was knighted and made an alderman of london. after his patent expired in , his mill became the prototype for later cotton and wool spinning mills in the later s. there were many woolen manufacture towns. clothiers might employ up to three thousand workers. at these, the spinning was done by unskilled labor, especially women and children in villages and towns. weaving, wool combing, and carding were skilled occupations. in , clockmaker and weaver john kay invented a flying shuttle for weaving. it was fitted with small wheels and set in a kind of wooden groove. on either side there were two wooden hammers hung on horizontal rods to give the shuttle and to and fro action. the two hammers were bound together by two strings attached to a single handle, so that with one hand the shuttle could be driven either way. with a sharp tap by the weaver, first one and then the other hammer moved on its rod. it hit the shuttle, which slid along its groove. at the end of each rod there was a spring to stop the hammer and replace it in position. the flying shuttle doubled the weavers' output. now the broadest cloth could be woven by one man instead of two. this shuttle was used in a machine for cotton. but the manufacturers who used the flying shuttle combined together and refused to pay royalties to kay, who was ruined by legal expenses. now the price of thread rose because of increased demand for it. the weavers, who had to pay the spinners, then found it hard to make a living. but the process of spinning was soon to catch up. in , john wyatt, a ship's carpenter who also invented the harpoon shot from a gun, patented a spinning machine whereby carded wool or cotton was joined together to make a long and narrow mass. one end of this mass was drawn in between a pair of rotating rollers, of which one surface was smooth and the other rough, indented, or covered with leather, cloth, shagg, hair, brushes, or points of metal. from here, the mass went between another set of rollers, which were moving faster than the first pair. this stretched the mass and drew it into any degree of fineness of thread by adjusting the speed of the second pair of rollers. then the thread went by a flier, which twisted it. after this the thread was wound off onto spindles or bobbins, whose rotation was regulated by the faster pair of rollers. or the mass could be drawn by rotating spindles directly from one pair of rollers. this machine was worked by two donkeys and was tended by ten female workers. because of bankruptcy in , the invention was sold to edward cave, the editor of "gentleman's magazine". he set up a workshop with five machines, each fitted with fifty spindles and worked by water wheels. carding was done by cylindrical carding machines invented by lewis paul. in , the plant was bought by carpenter and weaver james hargreaves. he was watching his wife spin when the spinning wheel tipped over onto its side. it continued to revolve, while the thread, held between two fingers, seemed to be spinning itself, even though the spindle was in a vertical instead of a horizontal position. it occurred to him that a large number of vertical spindles arranged side by side could be turned by the same wheel and that, therefore, many threads could be spun at once. he named his machine the "the jenny" after his wife. this "spinning jenny" could spin a hundred threads at a time. he patented it about . the machine consisted of a rectangular frame on four legs. at one end was a row of vertical spindles. across the frame were two parallel wooden rails, lying close together, which were mounted on a sort of carriage and slid backwards and forwards as desired. the cotton, which had been previously carded, stretched, and twisted passed between the two rails and then was wound on spindles. with one hand the spinner worked the carriage backwards and forwards, and with the other he turned the handle which worked the spindles. in this way, the thread was drawn and twisted at the same time. the jenny did the work of about spinning wheels. no longer did it take ten spinners to keep one weaver busy. but manufacturers refused to pay him royalties for his invention. he was offered , pounds for his rights in the jenny, but refused it. the courts held that the model of his jenny had been used in industry before it was patented and any rights he may have had were declared to have lapsed. nevertheless, he made over , pounds. the spinning jenny was used in many homes. richard arkwright came from a poor family and was taught to read by an uncle. he became a barber and made wigs. he taught himself crafts necessary to invent and patent in a spinning frame worked by a water wheel, which he called a" water frame". he strengthened cotton thread by adding rollers to the spinning process which were able to strengthen the cotton thread and make it of even thickness so that it could be used instead of costly linen as the warp. with capital from two rich hosiers, he set up a workshop next to a swift and powerful river running down a narrow gorge. then he turned his attention to weaving this thread with multiple spinning wheels in the first practical cotton mill factory. in , he set up weaving workshops making pure cotton calicoes which were as good as indian calicoes. this was the first all-cotton cloth made in england. he had confronted and solved the problem of a statute of which proscribed wearing or using printed, painted, stained or dyed calicoes e.g. in apparel, bed, chair, cushion, window curtain, and furniture, except those dyed all in blue, or else forfeit pounds by a seller, pounds by a wearer, and pounds by other users. the purpose was to provide wool-working jobs to the poor, whose numbers had been increasing excessively because of lack of work. arkwright argued that the statute should not include printed or painted cloth made in great britain in its ancient tradition of fustians with an all linen warp for strength and a cotton weft for fineness. this statute was so "clarified" in . when wool-weavers had expressed their opposition to imported printed cottons and calicoes by tearing them off people, a statute of provided that any one who willfully and maliciously assaulted a person in the public streets or highways with an intent to tear, spoil, cut, burn, or deface the garments or clothes of such person and carried this out was guilty of felony punishable by transportation for seven years. the prohibition against the manufacture and wearing and using of pure cotton fabrics came to an end in on arguments of arkwright made to parliament that his pure cottons would bleach, print, wash and wear better than fustians. in , arkwright added machines to do work prefatory to spinning. raw cotton was first fed by a sloping hose to a feeder that was perpetually revolving. from here it went a carding machine of three rollers of different diameters covered with bent metal teeth. the first, with teeth bent in the direction of its revolution, caught up the cotton fibers. the second, revolving in the same direction but much faster, carded the fibers into the requisite fineness by contact with the third, whose teeth and motion were in the opposite direction. next, a crank and comb detached the carded cotton so that it came off as a continuous ribbon. then the ribbon went into a revolving cone, which twisted it on itself. eventually arkwright became rich from his creation of the modern factory, which was widely copied. he established discipline in his mills and he made his presence felt everywhere there, watching his men and obtaining from them the steadiest and most careful work. he provided housing and services to attract workers. after cotton, the inventions of the spinning jenny and the water- powered frame were applied to wool. silk and cotton manufacture led the way in using new machinery because they were recently imported industries so not bound down by tradition and legal restraint. yarn production so improved that weavers became very prosperous. cards with metal teeth challenged the use of wood and horn cards with thistles on them in carding wool. merchants who traveled all over the world and saw new selling opportunities, and therefore kept encouraging the manufacturers to increase their production and improve their methods. factory owners united to present suggestions to parliament. manufacturing broke loose from traditional confines in several ways. to avoid the monopolistic confines of chartered towns, many entrepreneurs set up new industries in birmingham or manchester, which grew enormously. manchester had no municipal corporation and was still under the jurisdiction of a manor court. it sent no representative to the house of commons. all over the country the justices of the peace had largely ceased regulating wages, especially in the newer industries such as cotton, where apprenticeship was optional. apprenticeship lapsed in many industries, excepting the older crafts. several legal decisions had declared seven years practice of a trade as good as an apprenticeship. apprentices still lived in their masters' houses and were still treated as family members. the regulations of the cutlers' company remained in force as its masters used their great manual skill to make cutlery in their own homes with the help of their children and apprentices. trades in some towns which had guild regulations that had the force of law hung on to their customs with difficulty. although there were few large factories in the country under effective management of a capitalist, trade unionism was beginning as two distinct classes of men were being formed in factories. the factory owner was so high above his workmen that he found himself on the same level as other capitalists, the banker, who gave him credit, and the merchant, who gave him customers. journeymen in factories could no longer aspire to become masters of their trade and no longer socialized with their employers. hard and fast rules replaced the freedom of the small workshops. each worker had his allotted place and his strictly defined and invariable duty. everyone had to work, steadily and without stopping, under the vigilant eye of a foreman who secured obedience by means of fines, physical means, or dismissals. work started, meals were eaten, and work stopped at fixed hours, signaled by the ringing of a bell. factory hours were typically fourteen hours or more. organized resistance, as usual, began not with those most ill-treated, but with those men who had some bargaining power through their skills. wool-combers, who worked next to a charcoal stove where they heated the teeth of the comb, were the most skilled of the cloth industry were hard to replace. since they were nomadic, they quickly organized nation-wide. they agreed that if any employer hired a comber not in their organization, none of them would work for him. they also would beat up and destroy the comb-pot of the outsider. in and , the tiverton wool-combers objected to the import of combed wool from ireland by burning irish wool in clothiers' stores and attacking several houses. they had strike funds and went on strike in . their bloody brawls caused the military to intervene. then many of them left town in a body, harming the local industry. the earnings of wool-combers was high, reaching from s. to s. a week in , the highest rate of a weaver. in , the colchester weavers accused their employers of taking on too many apprentices. when the weavers organized and sought to regulate the weaving trade, a statute was passed in making their combinations void. strike offenses such as housebreaking and destruction of goods or personal threats had penalties of transportation for seven years. still in , the gloucester weavers protested against men being employed who had not served their apprenticeship. when the journeymen tailors in and around london organized a union, a statute made their agreements entering into combinations to advance their wages to unreasonable prices and to lessen their usual hours of work, illegal and void, because this had encouraged idleness and increased the number of poor. tailors' wages were not to exceed s. per day and their hours of work were to be a.m. to p.m. for the next three months, and s. d. per day for the rest of the year. a master tailor paying more would forfeit pounds. a journeyman receiving more was sent to the house of correction for months. justices of the peace could still alter these wages and hours depending on local scarcity or plenty. despite this statute, the journeymen tailors complained to parliament of their low wages and lack of work due to their masters calling them to work only about half the year. there was much seasonal fluctuation in their trade as there was in all trades. the slack period for the tailors was the winter, when the people of fashion retired to their country estates. after their complaint, their wages then rose from s. d. per day in , to s. d.- s. in , to s.- s. d. in , to s. d.- s. d. in , to up to s. / d. in , and to s. in . foremen were excluded from wage control. when they complained of their long hours, which were two hours longer than the a.m. to p.m. of most handicraft trades, their hours were reduced in by one hour to a.m. to p.m. and their pay was set at d. per hour for overtime work at night during periods of general mourning, e.g. mourning for a deceased courtier. their work hours were lowered another hour to a.m. to p.m. in . the stocking frame-knitters guild, which had been chartered in , went on strike to protest the use of workhouse children as an abuse of apprenticeship which lowered their wages. they broke many of their frames, which belonged to their employers, to limit their number. in , combinations to advance wages, decrease hours of work, or regulate prices were declared void for journeymen dyers, journeyman hot pressers, all wool workers, brickmakers and tilemakers, journeymen servants, workmen, laborers, felt and hat makers, and silk, linen, cotton, iron, leather, and fur workers in and around london. the penalty was prison or hard labor at a house of correction for three months without bail. in , justices of the peace were to determine the rates of wages of wool workers according to numbers of yards. but this was repealed the next year to prevent combinations of workers. wage agreements between clothiers and weavers were declared binding. clothiers not paying wages within two days of delivery of work forfeited s. in the silk weavers in east london drew up a scale of wages, and upon its being rejected, of them broke their tools, destroyed the materials, and left their workshops. a battalion of guards had to take possession of the area. in , the silk weavers marched on westminster to stop the import of french silks. in , the weavers rebelled against a d. per yard reduction in their wages, filling the streets in riotous crowds and pillaging houses. after the garrison of the tower came, the workmen resisted with cudgels and cutlasses, resulting in deaths and woundings. the throwsters [those who pulled the silk fibers from the cocoons of the silk worms and twisted them together to make a thread] and the handkerchief weavers also became discontent. a battle between soldiers and silk weavers at their meeting place resulted in several men on both sides being killed. in , wages and prices for the work of journeymen silk weavers in and around london were designated to be regulated by the mayor and justices of the peace. foremen were excluded. no silk weaver could have more than two apprentices or else forfeit pounds. journeymen weavers entering into combinations forfeited s. this statute satisfied the weavers, but they formed a union to ensure that it was followed. in , , and , there were strikes which stopped the work of the coal industry and harbor at newcastle for weeks. in , the keelmen formed a combination to force their employers to use the official measure fixed by statute for the measurement of loads of coals. the book "consideration upon the east-india trade" dating from advocated free foreign trade. it argued that the import of goods from india not only benefited the consumer but also the nation, because it was a waste of labor to use it in producing goods which could be bought cheap abroad. this labor could be better put to use at easily learned plain work in the new industries. also the low cost of imported goods would motivate the invention of machines in the nation which would be even more efficient in manufacturing these goods. but english manufacturers were still suspicious of free trade. making beer and distilling gin from barley were widespread. the pastimes of gambling and drinking were popular with all classes. in the trades, this was promoted by the uncertainties of life and work and a general sense of instability. many london tradesmen started their day with a breakfast of beer, bread, and cheese, the traditional breakfast of countrymen. gambling and dissipation reduced some london men with good businesses to destitution, the work house, or street begging. drunken gentlemen played pranks such as imitating a woman in distress or throwing a person in a horse trough. some innkeepers had "straw houses" where customers who were so drunk they were unable to walk home could sleep in fresh straw. a person could get drunk for a few pence. gambling with cards was a popular pastime after dinner. cricket matches were played by all classes instead of just by humbler people; there were county cricket matches. gentlemen often took their coachmen with them to public events such as cricket matches. tennis was a sport of the wealthy classes. billiards, chess, and games with cards or dice were played, especially in alehouses. there was horse racing on any open ground to which people brought their horses to race. jockeys tried to unseat each other. hunting of rabbits and then foxes replaced deer hunting. bird and duck hunting was usually with flint lock guns instead of hawks, as the hedges provided cover from hawks. there was fishing with line, hook, and bait. watching the hanging of felons, about a year in london, was popular, as was going to bedlam to watch for a fee the insane being flogged. people went to the tower to try to get a glance at a famous prisoner looking through a window or taking a walk along the battlements. besides the grand pleasure gardens for gentry, there were lesser pleasure gardens in london for working families, which offered fresh air, tea, beer, swimming, fishing, courting, bowling, and cheap entertainment. running, vaulting, and leaping were still popular in the countryside. fairs had amusements such as fire swallowers, ventriloquists, puppet shows, acrobats, jugglers, animal performances, pantomimes, boxing, dwarfs, and albinos, but less trading. in was the first circus. circuses included feats of horsemanship and clowns. there was also eating and drinking competitions, foot races, football, archery, some wrestling, and some bowling on greens or alleys. in winter there was ice skating with blades and sliding. the right of public access to st. james park became entrenched by the s. there was sailing, rowing, swimming, and hopscotch. george iii made sea-bathing popular and it was supposed to be good for one's health. there was steeple chasing as of . horse-racing was given rules. on sunday, there was no singing, music playing, dancing, or games, but the bible was read aloud, prayers were said, and hymns were sung. sabbath-breakers were fined by magistrates. men often spent sunday in a tavern. in general, commodity prices were stable. but when harvests were poor, such as in when there was famine, and between and , bread prices rose. the price of wheat in london, which since had been between s. and s., rose to s. in . then the poor engaged in food riots. these riots were often accompanied by mob violence, burning, and looting of grain mills, shops, and markets. the english economy was so dependent on foreign trade, which had trebled since the s, that the slightest disturbance in the maritime trade threatened the english with starvation. in many localities the men in need of parochial relief were sent around from one farm to another for employment, part of their wages being paid from the poor rates. the poor often went from parish to parish seeking poor relief. settled people tended to fear wandering people. parishes sought to keep down their poor rates by devices such as removing mothers in labor lest the infant be born in the parish. so a statute was passed that a child born to a wandering woman could not have the place of birth as his settlement, but takes the same settlement as his mother. another device to prevent others from establishing settlement in a parish was for its farmers to hire laborers for only fifty-one weeks. also, some apprentices were bound by means other than indenture to avoid settlement. laborers who came to work in industries were refused settlement and sent back to their original parishes whenever they seemed likely to become dependent on the rates. statutes then provided that a parish must give settlement to apprentices bound for forty days there, not only by indenture, but by deed, writings, or contracts not indented. in , parishes were authorized to purchase houses in which to lodge or employ the poor and to contract with any person for the lodging, keeping, maintaining, and employing of the poor. these persons could take the benefit of the work, labor, and service of these poor, which was then used for the relief of other poor. the poor refusing such lodging could not then get relief. many of the poor starved to death. the propertied classes turned a blind eye to the predicament of the poor, opining that they were idle or could save more and did not need higher earnings. charitable organizations gave to the poor and set up all day sunday schools to set wayward children on a moral path. the sunday schools could accommodate children who worked during the week. punishment of children by parents or others could be by whipping or even sitting in stocks. about half of the people were dependent on poor relief or charities. desertion by a man of his family was a common offense. parishes providing upkeep for the family sent men to find the errant husbands. the parish would ask unmarried mothers who was the father of their child and then force him to marry her or pay for the upkeep of the child. he often made a bargain with the parish to release him of his obligation for a sum of money paid to the parish. but many young parish children died of neglect, and later, parishes were required to list children under four to aid in accounting for them. divorces were still few and expensive, but increasing in number; there were more in this period. it was easier for a man to get a divorce for one act of adultery by his wife, than for a wife to get one for habitual unfaithfulness. vagrants and other offenders could be committed to houses of correction as well as to county gaols, because of the expense of the latter. crime was exacerbated by orgies of liquor drinking by the common people, especially between and , the sale of which did not have to be licensed as did ale. in , it was required that retailers of brandy, rum, and other distilled spirituous liquors be licensed and to pay pounds a year for their license, because excessive use had been detrimental to health, rendering persons unfit for useful labor and business, debauching their morals, and inciting them to vices. only persons keeping public victualing houses, inns, coffee houses, alehouses or brandy shops who exercised no other trade were allowed to obtain a license. this excluded employers who had sold liquors to their journeymen, workmen, servants, and laborers at exorbitant prices. street vendors who sold liquors had to forfeit pounds. a duty of s. per gallon was imposed on the retailers. there were riots in london against this statute and its new duties. there had been a tremendous growth in liquor drinking, which did not stop but went underground after this statute. in , a penalty of pounds or hard labor for two months was made for selling spirituous liquors without a license. also licenses were restricted to people who were certified by four reputable and substantial householders to be of good fame and sober life and conversation. sellers had to maintain good order in their premises or else forfeit pounds. about only innkeepers, victualers, and vendors paying rent of at least shillings could sell gin at retail. the punishment for the second offense was whipping and imprisonment. that for the third offense was transportation out of the country. in , additional duties were placed on spirituous liquors to discourage immoderate drinking going on by people of the meanest and lowest sort to the detriment of the health and morals of the common people. in , these duties were again raised. in , officers were authorized to seize all horses, cattle, and carriages used to transport foreign spirituous liquors for which duties had been evaded. in , the penalty for selling without a license was raised to pounds, which could not be mitigated below pounds. half the forfeiture was to go to the suer. the informer system for enforcing laws had its drawbacks. informers were not trained and were sometimes retaliated against for informing. sometimes this meant being tortured to death. sometimes there were schemes in which a leader of thieves, would take a profit in the stolen goods by posing as a good citizen who tracked down and returned them to the owners for a fee. also he might inform on his companions to get the reward for informing or to punish a troublesome one. sometimes the owner of goods was involved in a fake robbery. an effort in to turn the whole haphazard system of informers, into a specialized organization for the detection and apprehension of criminals had caused a mob to form and make threats. englishmen associated a police force with french tyranny. nevertheless, about , sir john fielding, a bow street magistrate, and his half-brother picked men to police the street under the direct control of the bow street magistrates. this first police district made an impact on the increasing violence of the times. in , a proposal before parliament to have a national census was also defeated by public fear of liberty being curtailed by having to make account of the number and circumstances of one's family and giving out information that could be used by enemies both in the realm and abroad. in , the mercury thermometer was invented by gabriel fahrenheit of germany; this was much more accurate than the alcohol and water thermometers. sweden's anders celcius invented the celsius scale. the hydrometer, which measures air humidity, was also invented. these made possible weather forecasting. in , the french chemist etienne geoffroy published a table of affinities among chemical substances, a precursor to the periodic table of elements. carolus linneaus, a swedish naturalist and botanist, established the scientific method of naming plants and animals by genus and species. when he showed that there was a sexual system in plants, church authorities were so shocked that they suppressed this knowledge as they did other scientific knowledge. rev. stephen hales made ventilators for ships, prisons, and granaries, using the method of injecting air with bellows. this saved many lives in the prisons. in , he discovered that water that plants lost by evaporation was restored by the roots up the stems. he found that gas could be obtained from plants by dry distillation and invented a way to collect gases by heating certain substances. hans sloane, the son of a receiver-general of taxes, who became a physician, had collected hundreds of species of plants in jamacia while physician to its governor. he became physician to george ii and was a benefactor to many hospitals and devised a botanic garden in london for the society of apothecaries. italian luigi marsigli started the science of oceanography with a treatise discussing topography, circulation, ocean plants and animals, along with many measurements. frenchman jean-etienne guettard prepared the first true geological maps, showing rocks and minerals. he identified heat as the causative factor of change in the earth's landforms. john mitchell studied earthquakes. in , george hadley, a london lawyer and philosopher, determined that the cause of the prevailing westerly winds was the rotation of the earth to the east. benjamin franklin in observed that a particularly violent storm occurred in boston a day after a particularly violent occurred in philadelphia, and realized that they were the same storm, even though the storm's surface winds were from the northeast. he determined that atlantic coastal storms traveled from the southwest to the northeast. in , he prepared the first scientific chart of the gulf stream. daniel bernoulli, a swiss university lecturer in physics, mechanics, medicine, and anatomy, proved his theorem that any degree of statistical accuracy can be obtained by sufficiently increasing the observations, thereby also representing the first application of calculus to probability theory. in , he showed that as the velocity of horizontal fluid flow increases, its pressure decreases. this followed from his theorem that the total mechanical energy of a flowing liquid, comprising the energy associated with fluid pressure, the gravitational potential energy of elevation, and kinetic energy of fluid motion remains constant; that is, the mechanical energy is conserved. this was the first mathematical study of fluid flow. he demonstrated that the impact of molecules on a surface would explain pressure, and that assuming the constant random motion of molecules, pressure and motion will increase with temperature. he explained the behavior of gases with changing pressure and temperature, establishing the kinetic theory of gases. jean nollet from france discovered osmosis, the passage of a solution through a semi-permeable membrane separating two solutions with different concentrations. in , scotsman physician joseph black identified carbon dioxide, the first gas recognized as distinct from everyday breathing air. he did this by using a balance to weigh alkalies before and after exposure to heat. they lost weight by losing carbon dioxide. his development of the concept of latent heat, the quantity of heat absorbed or released when a substance changes its physical phase at constant temperature, was the first application of quantitative analysis to chemical reactions. he ascertained the effects of carbon dioxide on animals and its production by respiration, fermentation, and burning of charcoal. at this time, all flammable materials were thought to contain "phlogiston", which was given off as they burned and was associated with the transfer of heat. plants were thought to remove phlogiston from the air and therefore burned when they were dry. in , joseph priestley, a nonconformist minister, schoolmaster, and tutor, identified oxygen by heating red oxide of mercury. he had become interested in the study of gases by watching the process of fermentation in a brewery next to his house. using a candle, mice, and plants in jars sealed over water, he showed that the processes of combustion, respiration, and putrefaction caused one-fifth of air exposed over water to disappear, and that plants restored air vitiated by these processes. this discovery of where breathable air comes from helped explain the system of life on the planet. when he isolated oxygen, he noted that it was better than air in supporting respiration and combustion. hydrogen (inflammable air) and nitrogen were discovered. the differences between acids, bases, and salts and their relationship to one another became understood. there was some theoretical as well as empirical knowledge about metals, e.g. in boiling points, intermetallic compounds, and changes in properties. in , benjamin frankin invented the franklin stove, which greatly improved heating efficiency. as a freestanding cast-iron fireplace, it supplied heat in all directions instead of only from the one direction of the usual wall fireplace. also, the heat absorbed by its cast-iron sides provided warmth even after the fire went out. static electricity was being discerned. it had been noticed that shaking a mercury barometer produced a strange glow in its "vacuum". experiments showed that a glass rubbed in vacuo would shine brightly and that an exhausted glass globe rapidly whirled on a spindle and rubbing against the hand produced a brilliant glow. and further, as newton wrote: "if at the same time a piece of white paper or white cloth, or the end of ones finger be held at the distance of about a quarter of an inch or half an inch from that part of the glass where it is most in motion, the electric vapor which is excited by the friction of the glass against the hand, will by dashing against the white paper, cloth, or finger, be put into such an agitation as to emit light, and make the white paper, cloth, or finger, appear lucid like a glowworm". in the study of electricity, conductors and insulators were recognized. there were demonstrations of electrical phenomena such as seeing the ignition of brandy by a spark shooting from a man's finger and the feeling the transfer of an electrical impulse created from a rubbed glass globe among a circle of people by their holding hands. in , frenchman charles dufay discovered that there are two types of static electric charges, and that like charges repel each other while unlike charges attract, linking electricity to magnetism. in , benjamin franklin "caught" lightning with a sharp pointed wire attached to the top of a kite which led down to a key at the other end. when a thunder cloud electrified the kite, a charge was seen coming from the key to an approaching finger. this charge was then stored in an early type of capacitosr, a leyden jar, and then reproduced to create the same feeling of transfer of electrical impulse among a circle of hand-holders, thereby illustrating that it was the same phenomenon as electricity. this countered the theological belief that thunder and lightning were signs of divine displeasure or the work of the devil. franklin invented the lightening rod, which was then used to protect buildings. about ten years later, the first lightening rod on an english church was erected, which showed the church's acceptance of his theory. franklin theorized that there were electric charges everywhere and designated them as positive or negative. he observed that opposite charges attracted each other, but that like charges repelled each other. in , joseph priestly did an experiment suggested by franklin and showed that electrical force follows the same law as gravitational force; that is, that the attraction or repulsion between two electrical charges varies inversely in proportion to the square of the distance between them. joseph-louis lagrange from france developed differential equations. natural history museums were established. a group split off from the royal society to show collections of curiosities. in , a self-educated mechanic founded the society for the encouragement of arts, manufactures, and commerce. it had sections on agriculture, manufactures, mechanics, chemistry, liberal arts, and trade and colonies. it sponsored contests at which prizes were given, such as that in for the best invention of a machine that would spin six threads of wool, flax, cotton, or silk at one time with only one person attending it. machines still mostly relied on human, animal, and water power. abraham darby was a quaker and millwright who made large cooking pots of iron, which cost less than bronze. around , he experimented with various substances to take the place of wood charcoal in iron smelting. coal was a remote possibility. in forging or working metals coal had more or less the same qualities as wood charcoal, but this was not the case in smelting ores, especially iron ore. coal contained sulphur compounds which caused the iron ore to deteriorate. so he controlled the burning of coal to burn out these impurities, which produced coke. his son took over after his death and improved the methods of coking, strengthened the bellows, and added ore limestone and other reagents to the mixture. by , his large blast furnace using both pit coal and wood charcoal was very productive. he made iron goods of such quality as those imported. in , richard reynolds replaced the wooden rails connecting a blast furnace to mines with cast iron rails. he had apprenticed as a grocer and then became a partner in a large ironworks of darby with a man whose daughter he married. after darby died and before darby's sons became of age, reynolds was in charge of the ironworks. he cast cylinders of the early steam engines. in john roebuck, a physician and son of a prosperous manufacturer of sheffield goods, found a cheaper way to manufacture sulphuric acid. he did this by using leaden chambers instead of glass globes to collect the vapor from burning nitre and sulphur over water. this reduced the cost of sulfuric acid to one-fourth of its previous cost, so that sulfuric acid came to be used to bleach linen instead of sour milk. he also made cast iron into malleable iron by smelting iron using coke from pit-coal instead of charcoal. but flooding in his mines and further ventures resulted in his ruin and bankruptcy. thomas newcomen, a baptist ironmonger, blacksmith, and locksmith, supplied iron tools to mine workers. he was aware of the problem of flooding of mines and the awkward system of pumps which were used one above the other and were powered by teams of horses. he made a very valuable contribution to power generation by inventing the atmospheric pressure steam engine with piston around . he did this by connecting theory with experiment, through the use of scientific knowledge, especially the royal society's investigation into atmospheric pressure. first cold water was poured on a cylinder in which a piston could move up and down. this caused steam inside the cylinder to cool and condense into water. the vacuum created inside the cylinder under the piston caused atmospheric pressure on top of the piston to push the piston down. the piston was attached by a rod to the end of a beam which end then swung down from a point on a vertical stand to which it was attached. when the beam swung, its other end, which was attached to a rod connected to a pump, rose, thus working the pump. then steam from water heated in a boiler under and communicating with the cylinder was allowed into the cylinder under the piston. this overcame the atmospheric pressure on the piston from above and allowed the piston to rise by a counterweight on the rod over and connecting to the pump. boys opened and closed the steam valve, which let steam into the cylinder from below, and the water valve, which let cold water pour on the cylinder from above. then the boys were replaced by the valves being connected to the swinging beam which caused them to open and close at perfectly regular intervals. a story gives the credit for this improvement to an inventive valve boy who wanted to play with his friends. in , the mining industry used this steam engine to pump water out of mine-shafts which had flooded. these engines were also used to supply water to reservoirs' locks at canals, and drinking water facilities in towns. one such engine developed power equivalent to fifty horses working at one sixth the cost. it was the first automatic machine since the clock. then james watt invented the steam engine which used steam as a force acting on the piston. watt made his living making scientific instruments for glasgow university. around , he was fixing one of newcomen's engines belonging to the university, when he saw its inefficiencies, such as the loss of heat when the cylinder was cooled. he saved this heat energy by having the steam condensed in another vessel distinct but connected to the cylinder. this condenser was kept constantly cool by cold water. so the condensed steam was pumped back into the boiler and it circulated continuously, thus obviating the need for constant resupply of water. in order to avoid the necessity of using water to keep the piston air-tight, and also to prevent the air from cooling the cylinder during the descent of the piston, he used the expansion of the steam to push the piston instead of atmospheric pressure. then, in order to expand the use of the steam engine beyond that of a pump, he converted the oscillating motion of the beam into rotary motion. he formed a partnership with john roebuck, who had a two-thirds interest. but when roebuck needed money, he sold his interest to matthew boulton. boulton wanted better power that that of his watermill for his workshops that made metal buttons, watch chains, shoebuckles of engraved steel, ornamental bronzes, vases, chandeliers, tripods, silver and plated wares, and imitation gold and tortoiseshell work. in dry weather, about eight horses were needed to aid in driving the machinery. a steam pump could pump water from the bottom of the watermill to the top to be used again. he had built up this factory of five buildings and six hundred workers, with , pounds derived from his marriage to an heiress. by , the partnership had built a model steam engine with rotary power whose design could be sold. the price of the engine was set as the amount of money saved on fuel costs in the first three years of its operation. this machine was a relatively economical user of energy, capable of performing almost any kind of work. about , john wilkinson, the son of a farmer who also oversaw an iron furnace, substituted mineral coal for wood charcoal in the smelting and puddling of iron ore. in , he made it possible to transport coal out of mines on rail wagons drawn by horses. as father of the iron industry, he made iron chairs, vats for breweries and distilleries, and iron pipes of all sizes. with his invention of the first precision boring machine, he provided watt with metal cylinders of perfectly accurate shape, which were necessary for the smooth working of watt's steam engine. in he bought a pumping steam engine from boulton and watt's company for his ironworks. it pumped three times as fast as newcomen's engine. watt's steam engine came to be used for power-loom weaving and then for all sorts of manufactures. it would put england ahead of every manufacturing country in the world. millwrights built, installed, and later designed not only steam engines but the machinery that they drove. these men were essential in setting up the first factories. they were the most imaginative and resourceful craftsmen. they knew how to use a turner's, a carpenter's and a blacksmith's tools and had supervised or done smith work, brick-laying or stone-mason's work in erecting and maintaining windmills with their many gears and bearings. there was a good deal of variety in mills, as well as in the structure and workmanship of them, some being worked by horses, some by wind, and others by water. they had some knowledge of arithmetic and practical mechanics. they could draw out a plan and calculate the speed and power of a wheel. although technically in a branch of carpentry, the millwrights learned to work with metal as well. metal was superior to wood not only because of its strength but because wood parts were irregular in motion and wore out rapidly. so iron and brass parts came to replace wood and leather parts. in , j. paine got a patent for rolling iron instead of hammering it. the iron bars, being heated in a long hot arch or cavern passed between two large metal rollers, which had certain notches or furrows on their surfaces. clockmaker and quaker benjamin huntsman was struck with the difficulty of finding finely tempered steel for the springs of his watches and pendulums of his clocks. he experimented for years to find a homogeneous and flawless metal, and finally, in , invented cast steel, which had high tensile strength and was much harder than ordinary steel. he did this by remelting refined high quality wrought iron bars at very high temperatures in sealed fireclay crucibles, together with small quantities of charcoal and ground glass as reagents. this distributed the carbon evenly in the metal, which hammering could not do. he approached the sheffield cutlers, who finally agreed to try his cast steel for fear of losing their business to some other manufacturers who were approaching huntsman. since huntsman had no patent, he worked at night and employed only men who would keep his secret. his steel was made at night. his factory became prosperous about and the excellence of his steel manufacture was never equaled. steel and wrought iron was scarce and expensive. around , iron founder samuel walker, discovered huntsman's secret by appearing at huntsman's factory disguised as a shivering tramp who asked to warm himself by the furnace fire. he feigned sleep while watching the whole process. when he began to make cast steel, his annual output grew from pounds in to , pounds in and he made a fortune. silver was plated over copper from . white metal from tin and antimony was used from about . the brass industry was beginning to produce brass from copper and zinc that was as good as foreign brass. the secret of plate-glass manufacture came to england in the s. in , a corporation was set up for the manufacture of plate glass. it could raise joint-stock because of the great risk and large expense of the undertaking. in , chemist william cookworthy was given a fourteen year patent for the discovery of certain clay and stone in england from which he made england's first true porcelain, i.e. that which could sustain the most extreme degree of fire without melting, and also had grain as smooth and lustrous, and the transparency and beauty of color, equal in degree to the best chinese or dresden porcelain. the import duties on diamonds, pearls, rubies, emeralds and other precious stones and jewels was dropped to increase the business of cutting and polishing them. the world's first chocolate factory was set up in england in . milk was added to chocolate. the fanmakers were incorporated in . a linen company to sell cambricks [a fine white linen] and lawns [a thin and fine linen] was incorporated in . a free market for fish was established in westminster to supplement the free fish market in london to prevent forestalling and monopolizing of the fish industry and to increase the number of fishermen. duties for its maintenance were paid by the fishermen. certain men were given the right to incorporate fisheries of white herring for twenty one years to improve the fisheries and give employment to the poor. they were authorized to sell subscriptions and to build ships provided the fishery employ , in such fishery. there were restrictions on taking fish from rivers during their breeding season. herring fishermen were allowed to land and dry their nets and erect tents and pickle, cure, and reload fish on uncultivated land up to yards beyond the high water mark all any shore, forelands, harbors, and ports, without paying the landholder. later, a bounty of s. per ton was authorized to be given for vessels that were fitted out and used for white herring fishery. anyone wishing to be admitted to the levant (turkey) trading company was to be made free of such on paying pounds, so that this trade might be increased. in the s the first cooking school was established by mrs. elizabeth raffald, a servant. as for health, there were many occupational hazards. these included paralysis by mercury of refiners of silver and gold, paralysis by mercurial fumes of molten lead by plumbers, palsy of glaziers working with melted lead and of watch gilders, lead poisoning of painters, blinding by sawdust of sawyers, and the affects of fumes on pewterers and letter founders. particles of copper were breathed in by copper workers, whose hair and beards then turned green. braziers became deaf. hairdressers, bakers, masons, bricklayers' laborers, coal heavers, chimney sweeps, flax and feather dressers, and workers in leather warehouses suffered pulmonary diseases. chimney sweeps also had warty skin cancer from their bodies being habitually covered with soot and the lethal cancer of the scrotum. working with charcoal fires affected confectioners, chocolate makers, and sail-cloth makers. tanners, catgut makers, and tallow-candle makers became nauseous. heavy work weakened many bodies and caused hernias. bending over work for long hours caused stooped posture and hump backs. the association between dirt and disease was just beginning to be made. the principles of infection and hygiene were not well understood. bathing every couple of months was not unusual. there was some theological feeling that cleanliness betokened pride and filthiness humility. most houses had a bathtub that could be placed beside the fire in a bedroom. about % of the population had been getting smallpox, which blinded, maimed or disfigured many. deaths from smallpox were only occasional in the country, but constant in london, where about % of every generation died from it. making death commonplace, especially in the winter months when thick, dirty clothes were worn day and night, were typhus, which was carried by lice; typhoid, which was spread by flies from horse dung; tuberculosis; and influenza. dysentery and diarrhea made death commonplace especially in the summer when flies transmitted bacteria from filth to food and the water was its most foul. there was great meaning in the prayer "now i lay me down to sleep; i pray the lord my soul to keep; if i should die before i wake, i pray the lord my soul to take." thyphus spread easily in hospitals and gaols where vermin could live in the beds made of wood. colds and toothache were also common. venereal disease was not uncommon among the well-to-do in london. condoms were used to deter disease, but were still crude, coarse, uncomfortable, and unreliable. london had almost double the mortality rate of the nation. the number of baptisms in london were about % of its burials. about % of the deaths in london were among children under two, due to infantile diseases fostered by malnutrition, maternal ignorance such as giving babies adult food, ill-health, bad water, dirty food, poor hygiene, and overcrowding. many children died from diptheria, measles, scarlet fever, and smallpox. ten or twelve children with three or four surviving was a common family pattern. many well-to-do in london kept their children in the country for their better health. no matter what the ailment, physicians regularly bled patients and often gave them enemas with wooden funnels. sometimes a blister or irritant was applied to the skin to draw out the evil humors. cupping was used to provide suction to remove pressure from various parts of the body. also used were poultices, ointments, and herbal treatments, notably quinine. opium was given to deaden pain. there were about drugs in use. charms, spells, astrology, and folk remedies still played a major role in medicine. a physician attended surgeries to give advice. physicians could visit apothecary shops once a year and throw away any drugs falling below an arbitrary standard of excellence. in the house of lords decided a jurisdictional contest between the college of physicians and the society of apothecaries. it permitted the apothecaries to direct the remedies as well as to prepare them, although they could only charge for the drugs they provided. the poor sought advice from apothecaries. there was progress in health. scurvy virtually disappeared as a cause of death due to the eating of more vegetables. people were cleaner when wearing cotton, which had to be washed. in , free inoculations for smallpox began in england, pioneered by lady mary wortley montague, also a poet and letter writer. she led the way by having herself and her son inoculated. theologicians denounced this practice as a diabolical interference with disease sent by providence for the punishment of sin. sarah wallen mapp was a famous bone-setter. in surgeon william cheselden, whose master was specially licensed to perform the operation of removing stones in the hospital, reduced the death rate for removing stones due to hemorrhage, shock, and infection down to % by his invention of a lateral operation. he also published an anatomy book and treated certain kinds of blindness by forming an opening in the eye to serve as an artificial pupil. in , claudius aymand conducted the first successful appendectomy. nutritional deficiency diseases were beginning to be understood. in , james lind, a surgeon in the navy who noted that more men died of scurvy than in battle, published his work on his dietary controlled experiment on seamen showing that oranges, lemons, limes, green food, and onions cured scurvy. he published his methods of prevention and cure of malarial fevers and his method of disinfecting ships with the smoke of wood and gunpowder. in , he discovered that steam from salt water was fresh, and proposed a method of distillation to supply ships with fresh water. in giovanni morgagni from italy opined that disease resulted from a breakdown of organs and tissues that was viewable on autopsy. he wrote an extensive book showing the anatomy of diseases, e.g. affections of pericardium and aorta, (e.g. aneurysm), valve diseases, ulceration, rupture, dilation, and hypertrophy. he associated clinical observation with anatomy of disease. for example, pain on the left upper chest, numbness of the left arm, and difficulty breathing occurring together with exertion were associated with dilation of the aorta and hardening of arteries, which caused delay of blood in the aorta, in the heart, and in the lung vessels. bernoulli showed that the living human body constantly changes so that all its particles are renewed in a certain number of years. stephen hale described the first quantitative estimate of blood pressure and fundamental characteristics of blood circulation. in , frenchman dr. pierre fauchard, the father of dentistry, recommended rubbing one's teeth and gums with a piece of sponge. since three out of four babies died shortly after birth, beds in hospitals for pregnant women were established starting in . the next year physicians began to replace midwives. a hospital was established for abandoned foundling children in so they wouldn't die, as they usually did, in the care of parishes or workhouses or be exposed in the streets or left on door steps of the wealthy. it was besieged by women with babies in their arms. in a statute made the principles of the foundling hospital obligatory for all london parish children under six; they were to be sent to nurses outside london who were to be paid at least s. a week by the parish. in , this was extended to all parishes, and nurses who cared for a child well for a year was given a reward of at least s. also, parish children were not allowed to be apprenticed for more than seven years or until age and an apprentice fee of at least pounds, s. was to be paid to the master or mistress by the parish. after , there was a steady growth of population due to improved midwifery. william smellie taught scientific midwifery in london from and wrote a "treatise on midwifery" in , which had a clear explanation of the mechanism of labor. at this time there were several maternity hospitals. forceps existed for difficult deliveries. in , dr. cadogan wrote his book: "an essay on the nursing and management of children, which made a great improvement in the care of young children. for instance, it recommended loose clothing, no tight swaddling clothes, and a simple diet. swaddling clothes were used to retain a baby's evacuations but produced discomfort and serious skin conditions. a hospital was founded for venereal diseases in , another as an asylum for the penitent and orphaned girls who might otherwise be inclined to prostitution, and yet another for prostitutes in . coitus interruptus was widely used for birth control. there were also clandestine abortions and intentional neglect of newborns. melancholy was widespread. suicides were frequent and drugs were sold for this purpose. in , the mentally ill were classified as curable or incurable. there were many private asylums. a lunatic who was furiously mad and dangerous was required to be safely locked up or chained in his place of settlement. there were frequent and dangerous abuses in madhouses, so in , no one was to keep or confine more than one lunatic without a license granted by the royal college of physicians or else forfeit pounds. a justice of the peace and a physician inspected all madhouses to observe conditions and care of patients there. if refused admittance, the license was forfeited. in was the last time a monarch touched a person to cure him of a malady such as scrofula. in surgery students began to dissect corpses with their own hands to better learn anatomy. in the company of surgeons was separated out of the company of barber-surgeons. the barbers were proscribed from performing surgery and had to have a separate corporation from the surgeons because of the ignorance and unskillfulness of barbers healing wounds, blows, and hurts e.g. by blood letting and drawing of teeth. there was a surgeon's hall, officers chosen by the surgeons, and bylaws. the surgeons were required to examine candidates for the position of surgeon in the king's army and navy. they were exempted from parish, ward, and leet offices, and juries. in , a statute provided that the corpses of murderers were to be sent to the surgeon's hall to be anatomized, for the purpose of deterring murders. the penalty for rescuing the corpse of a murderer was to suffer death. the first dispensary for the poor was established in to give free medicine and treatment to the infant poor, and then to the infants of the industrious poor. the progress of science was seen to threaten the authority of the church. there was a general belief in god, but not much attention to jesus. feared to come were free thought, rationalism, and atheism. there was still a big gap between local parsons and bishops, who were educated, well-off, and related to the aristocracy. on the whole, preachers talked about morality and christian belief. they stressed good works and benevolence. but many protestant clergy were more concerned with their own livings than with their parishioners. they were indolent and did not set a good example of moral living. from , freemasonry spread and swiftly provided a spiritual haven for those who believed in god and desired ritual and mysticism. about , john wesley, the son of an anglican clergyman, became a religious leader for mining and industrial laborers, who were crowded into the slums of industrializing cities, and largely ignored by the church of england. he had been led to this by a profound religious experience. he led an evangelical revival with a promise of individual salvation. he lead an aesthetic life, eating bread, and sleeping on boards. the person to be saved from the horrors of eternal damnation in hell was to discipline himself to regular prayer, self-criticism, and hard work and to forsake worldly pleasures such as drinking, overeating, and even frivolous talk. this methodical regularity of living led to the movement being called methodist. wesley believed in witchcraft and magic. he opined that bodily diseases and insanity could be caused by devils and that some dreams are caused by occult powers of evil. the methodists engaged increasingly in philanthropic activities. they gave to the poor, and visited the sick and the imprisoned. wesley preached in the open air where all who wanted to attend could attend and also wear whatever clothes they had. large crowds of poor people gathered for these meetings. crowds of poor people were generally feared because of their mob potential. these methodist meetings were stormed as were quaker meetings, with shouts of "the church in danger". the methodists' homes were invaded and their belongings destroyed or taken or their persons beaten with tacit permission of authorities. some justices of the peace drafted preachers into the army or navy as vagabonds. eventually, however, the methodist revival imbued energy and piety into the lethargic clergy of the established church. a new moral enthusiasm and philanthropic energy grabbed the nation. prisons were reformed, penal laws made more wise, slave trade abolished, and popular education given momentum. in the established church, charity gained precedence over theology and comfort over self-examination and guilt. evangelist george whitfield preached calvinism and it split off from methodism. then calvinism went into full decline. presbyterianism collapsed into unitarianism and a general tendency towards deism developed. church sanctuary was abolished for those accused of civil offenses. there was much travel by scheduled coaches, which usually carried several passengers and were drawn by four horses. regular service of public vehicles to and from london went four miles an hour; it took two days to go from london to oxford. it was not unusual for a coach to bog down or overturn. sometimes it had to detour around an impassable stretch of road or borrow a couple of oxen from a nearby farm to get out of a quagmire. men and horses drowned in some of the potholes. robbery was endemic and some of the roads were so unsafe from highwaymen that bands of armed horsemen were hired to accompany the coaches. it was not unusual to come across gibbets for hanging at crossroads. in london inns at coach stops, there were casual workers who were associated with gangs of thieves specializing in passengers' goods. these workers would inform their associate thieves of specific goods that had been loaded onto certain coaches, which were then robbed selectively. traveling merchants preferred packhorses to carts because they could cross overland or through watercourses more easily. these pack horses traveled in regular caravans in single file. the leader had a bell around his neck to warn, from a distance, riders or carts coming in the opposite direction. carts traveled about two miles an hour. in the trustee system superseded administration by the justices of the peace of the turnpike system, including tolls and toll booths. the toll booths were frequently attacked by riotous mobs. so anyone pulling down or destroying turnpike gates at which tolls were to be paid went to prison or was put to hard labor in a house of correction for three months without bail. he was also whipped in the market place between : and : . if he offended a second time, he was transported for seven years. later the penalty of prison up to three years was added as an alternative. the hundred had to pay the damages up to pounds. the penalty for threatening the toll collector or forcibly passing through was pounds for the first offense, and pounds for the second offense with imprisonment for one year for those who couldn't pay. by , about miles could be made in a day. the turnpike trusts took over most of london's major highways during the s. there was no travel on sundays until . in , shocked by the difficulty caused by bad roads in concentrating the royal army to stop the scottish invasion, the king began systematically to improve all the roads. there was much road and highway widening and repair, and also river bank and pier repair, going on all over the country. marsh lands were drained. harbors were deepened. there were numerous statutes trying to adjust the needs of travel with the condition of the roads. for instance, there had to be a pole between wheel horses or double shafts. carriages, wagons, or carts drawn by more horses, oxen, or animals, or with very heavy loads, or with wheels bound with iron tires were observed to cause more damage, so they were restricted or had to pay higher tolls. then broad and smooth iron tires were observed to not cause the amount of damage as did narrow or irregular iron tires and their use was encouraged. from , weighing machines were kept at toll gates. by , turnpike roads had to be at least feet wide, and hedges and fences thereon had to be taken down by their owners. cartways to markets had to be at least feet wide, and horseways (later ) feet wide. there were ditches, drains, and gutters to carry off water. names and abodes of owners were to be put on carriages, wagons, and carts or forfeit - pounds, except for carriages or coaches of a nobleman or gentleman for his private use or those drawn by only one horse or two oxen, or those with wide wheels and a light load. there were town name signs, direction posts, and milestones. in , the surveyors and the commissioners of turnpikes were given authority to requisition local men, carts and draught animals for compulsory labor, or money instead, in maintaining the roads and making new ditches and drains. they could take any local sand, gravel, chalk, or stone from waste or common land or, if not needed by and satisfaction was made to the owner, from enclosed land. the surveyor was to be chosen locally for a year and could be given an allowance. new roads required the consent of the landowners and a negotiated price. a driver of a carriage, wagon, or cart on the public highway who by negligence or misbehavior caused any hurt or damage to a person or any other carriage or hindered free passage of any other carriage was to forfeit up to s. anyone leaving an empty cart or other obstruction on a public highway was to forfeit up to s. any cart, wagon, or carriage driven without a person on foot or on horseback leading it had a forfeiture up to s. any driver of an empty cart, wagon, or carriage who refused or neglected to make way for any coach or loaded cart, wagon, or carriage was to forfeit up to . any offender could be apprehended without warrant by anyone who saw his offense, and who was then to deliver him to a constable or other peace officer. by , the mail service was well-regulated. letter rates within miles of london were d. per piece of paper, then d. per ounce. within miles of new york city in america there were d. per piece of paper, then s. d. per ounce. letters were still carried by post horses. from london to new york, they were s. per piece of paper for the first three pieces, then s. per ounce. in , this rate was extended to all colonial ports. in , canals began to be constructed linking the main rivers. the barges were hauled by horses or men from the land near the river's edge. now goods of many inland towns cheapened and reached a national instead of just a local market. in an almost illiterate man called james brindley cut the first real canal at worsley for the duke of bridgewater, who owned the coal deposits there. he kept the line of the canal at one level to avoid having to make locks. it crossed one river as a forty foot high aqueduct. he refused to use the beds of small rivers, whose sluggish flow gave no adequate security against silting. coal at the destination point of manchester fell to half its former price. after wedgwood headed a campaign to persuade parliament to construct a certain canal, he bought adjacent land on which he built his great factory. in , the maximum interest rate that could be charged was reduced to % for the advancement of trade and improvement of lands because that rate was the norm in foreign lands. thus the maximum interest rate fell from to to and then to %. when issac newton was master of the mint, he noted that too restricted a currency caused a high interest rate to prevail, which was bad for commerce and the plans to set the poor to work, but that too large a quantity of money in circulation caused interest rates to fall, which encouraged luxury imports and the export of bullion. the bank of england provided a safer deposit and lower interest than goldsmiths or scriveners. it also issued notes for and (since ), and pounds. outside retail trade and wages payments, business was conducted on a credit basis with a paper promise to pay at some future date. check use was still formal and rare. tradesmen typically authorized their apprentices to "write off or draw" from their accounts, bringing their bank books. depositors authorized other people such as certain servants, relatives, cashiers, or company secretaries to make use of their accounts. after , the bank dividend was about % a year. promissory notes were assignable and endorsable and the holder could recover against the signer or any endorser as was the case with bills of exchange. in , no more promissory or other notes, bills of exchange, draughts, or undertakings in writing and being negotiable or transferable could be made for under s., because it was hard for the poorer sort of manufacturer, artificer, laborer and others to use them without being subject to great extortion and abuse. cash was to be used instead. by , government finances had become so chaotic that the chancellor of the exchequer sought to re-establish public credit by means of a chartered commercial company, the shares of which were offered in substitution for government stock. this south sea company was established in with a monopoly to trade in south america. the prospects of huge profits sent the share prices soaring. there was also an increase in the money supply. these factors led to a speculation bubble in in this stock. also, many stock-jobbers promoted companies of every description, such as one to extract gold from seawater. there was an insurance boom with about seventy insurance companies in existence, many virtually gambling in life contingencies. there was speculation in insurance for all types of occurrences, such as housebreaking, highway robbery, death by gin-drinking, and horses becoming disabled. the total capital invested in all these enterprises rose to over five times the cash resources of all europe. when the bubble burst, pound south sea stock had gone up to pounds and back down again to . since the government had in effect bought this stock at a low price and paid off its debt with this stock at a high price, this bubble relieved the government of much of its massive debt. it also redistributed wealth. after the bubble burst, investors took refuge in investing in - % government fixed-interest securities. a result of this bubble burst was the chartering of two corporations for marine insurance and prohibition of such by any partnership or firm. private persons could continue to write policies, and they chose lloyd's coffeehouse as their headquarters; it came to dominate the world of marine insurance after the two chartered companies came to concentrate on fire and life insurance. lloyd's list became the foundation for a new newspaper. there were specialty boxes at lloyd's such as on america or the baltic. many ships were reported captured by enemies or pirates, but underwriting insurance was a lucrative business for many. in the gold guinea was assigned a value of s. in , the gold standard was introduced. in , clipped and deficient gold coin was called in to be exchanged for new coin. local taxes were collected for the church, the poor, county courts of justice, borough administration, and highways. national taxes included the income, customs, and excise taxes. when the government tried to levy excise taxes on wine, tobacco, and then on cider, there was a public protest with mobs demonstrating against the power given to excise inspectors to search in people's homes. these excise taxes were no longer levied. duties were placed on items for encouraging industries within the country and to pay the expenses of government. there were more and higher duties to pay for war. at various times there were duties on hides, skins, seal skins, gilt and silver wire, malt, mum [strong beer made from malted wheat], cider, perry, spices, tea, coffee, cocoa nuts, chocolate, cocoa paste, snuff, chinaware, drugs, calicoes, herrings, apples, oysters, raw italian and chinese silk, gum arabic, gum senega, tallow, hogs-lard, grease, beaver skins and wool, imported brandy, raisins, coals and coal dust, coaches for one's own use or for hire, except licensed hackney coaches; silver plate owned by persons, corporations, and bodies politic; leases, bonds, and other deeds; licenses for retailing wine, beer, and ale; % of salaries, fees, and perquisites from office and employments including royal pensions and gratuities over pounds. when the price of wheat was high, as in , when it was s. per bushel, wheat products could not be exported. at other times, they could not be imported. duties on imported wheat, barley, rye, oats, beans, rice, indian corn were also dropped. the prohibition of importing salted beef, pork, bacon, and butter was dropped. in , no live cattle, pigs, mutton, pork, beef, either fresh or salted could be exported or forfeit pounds for every such animal or s. per pound of such meat. in , peas, beans, bacon, hams, and cheese could be imported duty free, and in labrador codfish. in , raw goat skins could be imported duty-free to improve the domestic manufacture of red, green, and blue leather. in , there were given costs above which various commodities could not be exported: wheat at s. per quarter, rye, peas, or beans at s., barley and beer at s., oats at s. or else forfeit the goods, s. per bushel and the ship or boat in which laden. (there are bushes in a quarter.) a window tax replaced the hearth tax. these duties were s. on dwelling houses, increased by d. per window for houses with - windows, and increased by d. per window for houses with - windows, and increased by s. per window for houses with or more windows, per year to be paid by the occupant. these were increased three more times, until the dwelling house duty was s. and the duty for or more windows was s. another duty for war was that on imported starch, certain imported clothes, cards, dice, soap, vellum, parchment, and paper made in the realm ( d.- s. d. per ream depending on quality) or imported ( - s. per ream). for pamphlets and newspapers made in the realm there was a duty of d. per sheet and d. for every advertisement. when the duty was paid, the paper was stamped. the penalty for nonpayment was pounds for sellers and pounds for those writing or printing on the paper. later, there was a penalty of imprisonment in a house of correction up to three months for sellers or hawkers of pamphlets or newspapers, and the apprehender received a reward of s. a parson marrying a couple without publishing banns or license could forfeit pounds. not paying duties was punishable by various forfeitures of money. officers for duties could search warehouses on suspicion of concealment of coffee, tea, chocolate, or cocoa beans with an intent to avoid duties after making an oath before a duty commissioner or justice of the peace setting forth the grounds of such suspicion. a special warrant could be issued authorizing the officer to seize such goods. wars were funded not only by some duties, but by lotteries and short-term funding purchased at % yearly interest from the bank of england and by long-term funding by the sale of annuities. county militias could be raised and called out to march together in order to be better prepared to suppress insurrections or invasions. their horsemen were to be provided with broad sword, a case of pistols with inch barrels, a carabine with belt and bucket, a saddle, and a bit and bridle. each foot soldier was to be provided with a bayonet, a cartouch-box, and a sword. in the militia act of , there were quotas for each parish, to be chosen by lot from lists of men - years old. after militia service for three years, one could not be called again until by rotation, and, if married, he was allowed to practice any trade in which he was able in any town or place. while he was in the militia, his parish had to pay an allowance to his family, if distressed, the usual price of an agricultural laborer, according to the number and ages of the children. quakers could provide a substitute or pay money to defray expenses of a substitute for three years. exempt were peers, commissioned officers in royal army or royal castle, other military personnel, members of either university, clergymen, teachers of any separate congregation, constables and peace officers, and watermen of the thames river. this militia act was due to an invasion scare in because great britain then had no allies on the continent. the old strategy of maintaining a small army of , men and relying on volunteers had really depended on england's allies to tie down france's land forces. the militia act of was designed to reassure squires they would not be used as adjuncts to the army. only those with much property could be officers. enlistees could still carry on their trades and jobs. costs were to be from general taxation rather than by locality. but it was almost impossible to get officers and there were many riots when parish authorities tried to draw up lists of those liable to serve. in the navy prevented french invasion. able-bodied men without a calling, employment, or visible means of maintenance or livelihood could be searched for and conscripted into the army. volunteers who enlisted were paid s. and were not taken out of her majesty's service by any process other than for some criminal matter. king george ii was the last king to lead his troops into battle. later, parishes were given s. for every soldier they summoned. also, persons who had a vote for member of parliament were exempted. whipping was the usual punishment for offenses. a soldier who deserted or joined in any mutiny or sedition in the royal army within the realm was to suffer death or any other punishment determined by court martial. in , a soldier (later, or a marine) who slept at his post, left his post before being relieved, communicated with any rebel or enemy, struck or disobeyed any superior officer could suffer death, including those soldiers in america. during war, chief officers of towns quartered and billeted royal army officers and soldiers in inns, livery stables, alehouses, and victualing houses for d. a day, but not in any private house without consent of the owner. from to , the army regiments were split up and scattered among the ale-houses of small towns for maintenance; this was to disperse the soldiers. it was easier to count them, thereby keeping a check on their number, which might be exaggerated if they were in large groups in barracks. the towns protested having to maintain soldiers and town magistrates imposed severe penalties for small offenses by soldiers. their drunkenness and violence were not tolerated as they were for ordinary people. their officers not being with them, the soldiers retaliated with troublesomeness. as of english troops could be quartered in unoccupied houses or barns and supplied with necessities such as bedding, firewood, candles, vinegar, salt, cooking utensils, and beer or cider. the royal hospital gave pensions to maimed and worn out soldiers treated there. sailors had more status than soldiers because they had regular work as seamen in times of peace and they did not remind the people of the idea of a standing army, which they had hated especially since cromwell. justices of the peace, mayors, and other officers could bind boys as apprentices to sea service if they were at least ten and their parents were chargeable to the parish or begged for alms. this indenture to the masters or owners of ships lasted until the boy reached . the boy's parish paid s. for clothing and bedding for such sea service. no such apprentice could be impressed into the navy until at least years of age. master and owners of ships that carried - tuns had to take one such apprentice and one more boy for the next tuns, and one more boy for every tuns over tuns, or else forfeit pounds to the boy's parish. boys voluntarily binding themselves to such sea service were exempt from impressment for the next three years. this was to increase the number of able and experience mariners and seamen for the navy and for the trade and commerce of the nation. no masters or commanders of merchant ships were to proceed on a voyage beyond the seas without first agreeing in writing on wages with the seamen, except for apprentices. such agreement had to be signed by the seamen. offenders were to forfeit pounds per seaman, which sum went to the use of greenwich hospital. any seaman leaving the ship before being discharged in writing was to forfeit one month's pay because too many left the ship before it was unladen. there were some ships of tons. the steering wheel had been introduced because a sudden heavy sea could wrest a tiller from the hands of a helmsman. triangular head-sails with jib boom and stay-sails on stays between masts were in use so that ships could sail closer into the wind. the length of ships was still determined by the same length of trees that could be grown. sailing ships were still vulnerable to a lee shore. latitude was easy to determine using the reflecting octant invented by john hadley in , and a sextant invented in , with mirrors and a small telescope to measure the angle between a celestial body such as the sun or north star and the horizon. but longitude could not be determined with any degree of accuracy. one method relied on accurate predictions of the future position of the moon as observed from a fixed reference point, such as greenwich. by precisely observing the local time of the moon's occultation of a known star at a particular place, and looking up in a table the predicted time of the event at greenwich, one could approximate the time difference of the place from greenwich. there were so many shipwrecks on this account that the government offered a reward to anyone who found a way to measure longitude accurately. in carpenter and clockmaker john harrison made the chronometer to do this with an accuracy of / seconds per month, and received , pounds. he was promised , pounds to explain the principle of his timekeeper and build three more. the chronometer kept time with extreme accuracy and was mounted to remove the effect of the ship's motion. to find a ship's position, a navigator noted the time and measured the positions of certain stars. he compared these positions with tables that showed the stars' positions at greenwich mean time, and then calculated the ship's position. officer positions were no longer bought, but were subject to examination for a minimum of knowledge, especially in navigation. in the naval academy was established. boys entered at age to and spent two or three years there. only about % of the crew of navy ships were volunteers. many were gaolbirds, having chosen the navy over more gaol time for debt. press gangs seized men in the port towns and from ships coming into harbor. from % to % of the crew were foreigners, many of these pressed men. about , the marine society was founded for training and placing poor boys in work in naval and merchant ships. this not only supplied men and boys for the navy, but saved boys from a life of vagrancy and crime. these boys usually became reliable and obedient sailors. the life of a sailor was a hard one, requiring much strength. sailors did not know how to swim, so falling overboard usually meant death. flogging was the usual punishment in the navy, even for small offenses. the amount of flogging due for each offense rose over time. if flogging were fatal, there would be an inquiry and occasionally punishment. a sailor's meals were usually hard bread invested with weevils and maggots, dried or salted meat or fish, and small quantities of oatmeal, butter, and cheese. many sailors had scurvy or other deficiency diseases. experiments with lime and lemon juice as remedies for scurvy were made around , but were not used in the navy until about . many more sailors died from these diseases than from battle. rum and water was a daily ration introduced in . the ordinary sailor was paid about one pound a month, a rate established in s which became outdated. this was not in cash, but in a ticket which entitled him to payment in full if he presented it at the pay office in london, but was subject to swinging deductions if he tried to cash it in another port. prize money from conquered ships was substantial. to encourage seamen to enter the navy, parliament provided that the prizes be divided among flag officers, commanders, other officers, seamen, marines, and soldiers on board every ship of war, including private ships commissioned by the admiral, as directed by the king, or as agreed with the owner of a private ship. it included an enemy's ships, and goods and arms on the ships or in fortresses on the land. there was also bounty money for enemy ships taken or destroyed. for retaking or salvaging english goods taken by the enemy, / th their value was paid. privateers colluding with others to fraudulently take their merchant ships forfeited their ships, with / rd going to the person who made the discovery and prosecuted. later, any able seaman volunteering for the navy was to receive pounds bounty. any seaman volunteering for the navy was to receive a bounty of pounds. if a navy seaman was killed or drowned, his widow was to receive a year's pay as bounty. no seaman in a merchant ship was to receive more than s. per month because of war at that time. still later, anyone who ran goods or avoided customs was excused and indemnified if he enlisted in the navy as a common sailor for three years. those under or over were made exempt from impressment into the king's service. the time of service was limited to five years if the serviceman so demanded. worn out and decrepit seamen no longer being treated at the royal hospital for seamen at greenwich received a pension as determined by the hospital. in war, the navy favored blockading tactics over attack by fireships, which grew obsolete. in peace, when not used in convoys to remote lands, many ships of war were used as cruisers to guard the coast, to trade, and to accompany merchant ships going out and returning home. about , marine forces of the navy were raised and quartered on shore. no war ship could carry goods except gold, silver, and jewels and except the goods of a ship in danger of shipwreck or already shipwrecked. the king was authorized to prohibit the export of gunpowder, saltpeter, ammunition, and arms. when a ship had been forced on shore or stranded on the coast, it had been the practice for people to plunder it and to demand high payment for salvaging its goods. so a statute required that salvage only be done by sheriff, mayors, and other officials. a person who defaced the marks on goods or hindered the saving of the ship had to pay double satisfaction to the person aggrieved and spend months at hard labor in a house of correction. if a person unduly carried off goods, he forfeited treble damages. if he made a hole in the ship or stole the pump from the ship, he was guilty of felony without benefit of clergy. the owner of the island of skerries was allowed to erect a lighthouse and charge passing ships other than navy ships d. per tun. only pilots examined and admitted into the society of pilots and, if no such pilot was readily available, a ship's own owner, master, or mate could pilot ships up the thames river, or else forfeit pounds for the first offense, pounds for the second, and pounds thereafter. any pilot losing a ship could no longer be a pilot. there had to be at least qualified pilots. the prices of piloting were pounds s. for ships drawing feet of water, and s. more for each additional foot drawn up to pounds s. for ships drawing feet of water. to preserve navigation, ships were not to throw any ballast, filth, rubbish, gravel, earth, stone, or filth into rivers or ports where the tide or water flowed or ran or else forfeit s.- pounds. ships on the thames river could take as ballast to stabilize a ship without cargo: dung, compost, earth, or soil from laystalls in london. there was a toll on ships entering the port of london to pay for repairs to its walls. many persons insuring ships for large premiums became bankrupt, thus ruining or impoverishing many merchants and traders. so the king was authorized to grant charters to two distinct corporations for the insurance of ships, goods, and merchandise or going to sea or for lending money upon bottomry [borrowing money and and pledging the ship as security]. each corporation had to pay , pounds to the exchequer and to have sufficient ready money to pay for losses insured by them. they were to raise capital stock and could make calls of money from their members in proportion to their stocks for any further money required. any owner, master, or mariner who cast away, burned, or otherwise destroyed a ship to the prejudice of underwriters of policies of insurance or of any merchants whose goods have been loaded on the ship was to suffer death. the owners of ships were not liable for losses by reason of theft without their knowledge by the master or mariners of goods beyond the value of the ship. this was to prevent the discouragement of owning ships. the insurance of merchant ships must give salvage rights [rights to take what may be left of the ships insured after paying the insurance on them] to the insurer. a lender on bottomry had benefit of salvage. no insurance could be for a greater amount than the value of one's interest in the ship or in the goods on board. no waterman carrying passengers or goods for hire e.g. by wherryboat, tiltboat, or rowbarge, on the thames river could take an apprentice unless he was a housekeeper or had some known place of abode where he could keep such apprentice or else forfeit ten pounds, and if he couldn't pay, do hard labor at the house of correction for - days. also he could not keep the apprentice bound to him. no apprentice could be entrusted with a vessel until he was if a waterman's son and if was he the son of a landman, and he had at least two years' experience. none but freemen, i.e. one having served an apprenticeship of seven years, could row or work any vessel for hire or be subject to the same punishment. this was to avoid the mischiefs which happen by entrusting apprentices too weak, unable, and unskillful in the work, with the care of goods and lives of passengers. later amendment required that apprentices be age to and that there be no more than passengers, with the penalty of transportation if there were over and one drowned. no boat on the thames river could be used for selling liquors, tobacco, fruit, or gingerbread to seamen and laborers because such had led to theft of ropes, cables, goods, and stores from the ships. excepted were boats registered at the guilds of trinity and of st. clement, but they had to show their owner's name and could only operate in daylight hours. the penalty was forfeiture of the boat. all ships coming from places infected with the plague had to be quarantined and any person leaving a quarantined ship had to return and later forfeit pounds, of which / could go to the informer, the rest to the poor. this was later raised to pounds and six months in prison, and if the person escaped, he was to suffer death. also later, a master of a ship coming from infected places or having infected people on board was guilty of felony and forfeited pounds. if he did not take his vessel to the quarantine area on notice, he forfeited a further pounds (later pounds) and the ship, which could then be burned. the king was authorized to prohibit commerce for one year with any country infected by the plague and to forbid any persons of the realm from going to an infected place. by , there was a clear distinction between a king's private income and the crown's public revenue. from , the king's treasurer as a matter of routine submitted annual budgets to parliament. he was usually also the leader of the house of commons and the chancellor of the exchequer. proclamations by the crown were more restricted to colonial and foreign affairs, to executive orders, and to instructions to officials. the high offices included the chancellor, treasurer, keeper, president of the council, privy seal, and two secretaries of state, who were in charge of all foreign and domestic matters other than taxation, one for the north and one for the south. with thomas more, the chancellor had become more of a judge and less of a statesman. other offices were: paymaster general, secretary of war, and treasurer of the navy. starting with the monarch, government positions were given by patronage to friends and relatives, or if none, to the highest bidder. these offices were usually milked for fees and employed deputies, clerks, and scribes who worked for long hours at very modest wages. most people believed that the offices of power and influence in the realm belonged to the nobility and gentry as indubitably as the throne belonged to the king. assaulting, wounding, striking, or trying to kill a member of the privy council engaged in his duties was punishable by death without benefit of clergy. civil and military commissions, patents, grants of any office or employment, including justice of assize, justice of the peace, court writs, court proceedings continued in force for six months after a king's death, unless superceded in the meantime. the king's ministers were those members of his privy council who carried out the work of government. by distributing patronage, the ministers acquired the influence to become leading members of the house of commons or the house of lords. they made policy, secured the king's consent, and then put through the necessary legislation. the king was to act only through his ministers and all public business was to be formally done in privy council with all its decisions signed by its members. the king gradually lost power. the last royal veto of a parliamentary bill was in . by , the privy council ceased making decisions of policy. instead a cabinet not identified with any particular party was chosen by the queen, who presided over their meetings, which were held every sunday. it dealt with parliament. in , the number of peers in the house of lords was fixed, so that the crown could create no more. about , robert walpole, son of a country squire, who came to be first minister of the crown and the leader of the whigs, organized the cabinet so that it was of one view. he led it for twenty years and thus became the first prime minister. a prime minister was needed because the king spoke no english. walpole was brilliant at finance and lessened taxation. he restored trust in the government after the south sea bubble scandal. he was successful in preserving the peace with other nations and providing stability in england that led to prosperity. the whigs opposed a standing army and over-reaching influence of the crown. they espoused the liberty of individual subjects. their slogan was "liberty and property". they generally favored foreign wars. members of the parliament felt responsible for the good of the whole country instead of accounting to their electors, but self- interest also played a part. leading commercial magnates of the realm sought to be members of parliament or governors of the bank of england so they could take up government loans at advantageous rates, snap up contracts to supply government departments at exorbitant prices, and play an important part in deciding what duties should be charged on what goods. about % of the population could vote. voting was open, rather than by secret ballot. seats in parliament could normally be bought either by coming to an arrangement with some landowner who had the right to nominate to a closed seat or by buying enough votes in constituencies where the electorate was larger and the contest more open. factory owners and leading landowners sat together on committees drawing up plans for public works such as canal building, obtained the necessary permits from public authorities and organized the whole enterprise. in , parliament was allowed to last for seven years unless sooner dissolved by the king because of the expense and tumult of elections, which frequently occasioned riots, and sometimes battles in which men were killed and prisoners taken on both sides. politics had become a career. members of parliament could not be arrested while parliament was in session. as of , electees to the commons had to have pounds annual income for knights or pounds annually for burgesses. this did not include the eldest son or heir apparent of any peer or lord of parliament or any person with the above qualifications. the universities were exempted. as of , a person electing a member of the commons had to swear or affirm that he had not received any money, office, employment, or reward or promise of such for his vote. if he swore falsely, it was perjury and he was to forfeit pounds and his right to vote. later, voters for member of parliament had to have residence for a year. still later, voters were required to have been freemen of the city or town for one year or else forfeit pounds, except if entitled to freedom by birth, marriage, or servitude according to the custom of such city or town. voters were still required to have a freehold of land of s. a year income, but holders of estates by copy of court roll were specifically precluded from voting or else forfeit pounds. in , since unauthorized persons had intruded into assemblies of citizens of london and presumed to vote therein, the presiding officer -appointed clerks to take the poll and oath required for elections for parliament, mayor, sheriffs, chamberlains, bridgemasters, and auditors of chamberlains. the oath was that one was a freeman of london, a liveryman of a certain named company, had been so for months, and had named his place of abode. the oath for alderman or common council elections was that the voter was a freeman of london and a householder in a named ward who had paid scot of at least a total of s. and bore lot. a list of the voters and of persons disallowed was given to candidates by the presiding officer. soldiers could not be quartered within miles of a place of election so that the election was kept free. voters in public corporations must have held their stock for six months before voting them to discourage splitting stock and making temporary conveyances thereof to give certain people more of a vote, e.g. in declaring dividends and choosing directors. ambassadors were made immune from arrest, prosecution and imprisonment to preserve their rights and privileges and protection by the queen and the law of nations. the supporters of the bill of rights society was founded and paid agents to give speeches throughout the country and used the press for its goals. james burgh demanded universal suffrage in his book: "political disquisitions". in there was union with scotland, in which their parliaments were combined into one. the country was known as great britain. the last scottish rebellion resulted in attainder of its leaders for levying war against the king. in , they were given the chance to surrender by a certain date, and receive a pardon on condition of transportation. in , anyone impeached by the commons of high treason whereby there could be corruption of the blood or for misprison of such treason could make his defense by up to two counsel learned in the law, who were assigned for that purpose on the application of the person impeached. in , counsel could interrogate witnesses in such cases where testimony of witnesses were not reduced to writing. there was a steady flow of emigrants to the american colonies, including transported convicts and indentured servants. delaware became a colony in . in , the king bought carolina from its seven proprietors for , pounds apiece. person having estates, rights, titles, or interest there, except officers, were allowed by parliament to sue the king with the court establishing the value to be paid, but no more than at a rate of , pounds per / of the property. georgia was chartered in on request of james oglethorpe, who became its first governor, as a refuge for debtors and the poor and needy. it established the episcopal church by law. in carolina and georgia were allowed to sell rice directly to certain lands instead of to england only. later, sugar was allowed to be carried directly from america to european ports in english ships without first touching some english port. foreigners who had lived in the american colonies for seven years, and later foreigners who served two years in the royal army in america as soldiers or as engineers, were allowed to become citizens of great britain on taking oaths of loyalty and protestantism. this included quakers and jews. the jews could omit the phrase "upon the true faith of a christian." in , indentured servants in america were allowed to volunteer as soldiers in the british army serving in america. if his proprietor objected, the servant was to be restored to him or reasonable compensation given in proportion to the original purchase price of his service and the time of his service remaining. there was much competition among countries for colonies. quebec and then montreal in in canada were captured from the french. about james cook discovered new zealand and australia; his maps greatly helped future voyages. the english east india company took over india as its mogul empire broke up. manufacturing in the american colonies that would compete with british industry was suppressed by great britain. there were increasing duties on goods imported into the colonies and restrictions on exports. in , parliament imposed duties on foreign imports going to america via britain: to wit, sugar, indigo, coffee, certain wines, wrought silks, calicoes, and cambrick linen. foreign vessels at anchor or hovering on colonial coasts and not departing within hours were made liable to be forfeited with their goods. uncustomed goods into or prohibited goods into or out of the colonies seized by customs officials on the ship or on land and any boats and cattle used to transport them occasioned a forfeiture of treble value, of which / went to the king, / went to the colonial governor, and / went to the suer. any officer making a collusive seizure or other fraud was to forfeit pounds and his office. in , there was imposed a duty on papers in the colonies to defray expenses of their defense by the british military. the duty on every skin, piece of vellum [calf skin] or parchment, and sheet of paper used in any law court was d.- pounds. there were also duties on counselor or solicitor appointments of pounds per sheet. duties extended to licenses for retailing spirituous liquors and wines, bonds for payment of money, warrants for surveying or setting out of any lands, grants and deeds of land, appointments to certain civil public offices, indentures, leases, conveyances, bills of sale, grants and certificates under public seal, insurance policies, mortgages, passports, pamphlets, newspapers (about s. per sheet), advertisements in papers ( s. each), cards, and dice. the papers taxed were to carry a stamp showing that the duties on them had been paid. parliament thought the tax to be fair because it fell on the colonies in proportion to their wealth. but the colonists saw this tax as improper because it was a departure from the nature of past duties in that it was an "internal tax". all of the original thirteen american colonies had adopted magna carta principles directly or indirectly into their law. the stamp duties seemed to the colonists to violate these principles of liberty. patrick henry asserted that only virginia could impose taxes in virginia. schoolmaster and lawyer john adams in massachusetts asserted that no freeman should be subject to any tax to which he had not assented. in theory, colonists had the same rights as englishmen per their charters, but in fact, they were not represented in parliament and englishmen in parliament made the laws which affected the colonists. they could not be members of the house of lords because they did not have property in england. there were demonstrations and intimidation of stamp agents by the sons of liberty. merchants agreed to buy no more goods from england. the stamp duty was repealed the same year it had been enacted because it had been "attended with many inconveniences and may be productive of consequences greatly detrimental to the commercial interests of these kingdoms". to counter the wide-scale running of goods to avoid the customs tax, the customs office was reorganized in to have commissions resident in the colonies and courts of admiralty established there to expedite cases of smuggling. this angered the colonists, especially boston. boston smuggling had become a common and respectable business. it was the port of entry for molasses from the west indies from which new england rum was made and exported. the entire molasses trade that was essential to the new england economy had been built upon massive customs evasions; royal customs officials had participated in this by taking only token customs for the sake of appearance in london and thereby had become rich. in parliament imposed a duty of d. per pound weight on tea and duties on reams of paper, glass, and lead into the colonies. these import duties were presented as external rather than internal taxes to counter the rationale the colonies gave against the stamp tax. but these items were of common use and their duties raised the cost of living. the king's customs officials were authorized to enter any house, warehouse, shop, or cellar to search for and seize prohibited or uncustomed goods by a general writ of assistance. these writs of assistance had been authorized before and had angered bostonians because they had been issued without probable cause. in paxton's case of , the massachusetts superior court had declared legal the issuance of general writs of assistance to customs officers to search any house for specific goods for which customs had not been paid. the authority for this was based on the parliamentary statutes of and authorizing warrants to be given to any person to enter, with the assistance of a public official any house where contraband goods were suspected to be concealed, to search for and seize those goods, using force if necessary. they were called "writs of assistance" because the bearer could command the assistance of a local public official in making entry and seizure. a "general" writ of assistance differed from a "special" writ of assistance in that the latter was issued on a one-time basis. the general writ of assistance in boston was good for six months after the death of the issuing sovereign. authority relied on for such writs was a statute giving customs officers in the colonies the same powers as those in england, a act by the massachusetts provincial legislature giving the superior court of massachusetts the same such power as that of the exchequer, and the massachusetts' governor's direction about to the massachusetts superior court of judicature to perform the function of issuing such warrants. the massachusetts court issued them in the nature of the writs of assistance issued from the exchequer court in england, but had issued them routinely instead of requiring the showing of probable cause based on sworn information that the exchequer court required. few judges in the other american colonies granted the writ. seditious libel trials in england and the colonies were followed closely and their defendants broadly supported. john wilkes, a member of the house of commons, published a criticism of a new minister in . he called king george's speech on a treaty "the most abandoned instance of ministerial effrontery ever attempted to be imposed on mankind". after being found guilty of seditious libel, he again ran for the house of commons, and was repeatedly elected and expelled. he was subsequently elected alderman, sheriff, and mayor of london. in , alexander macdougall was voted guilty of seditious libel by the new york colonial assembly for authoring a handbill which denounced a collusive agreement by which the assembly voted to furnish supplies for the british troops in new york in exchange for the royal governor's signature to a paper-money bill. when he was arrested, the sons of liberty rallied to his support, demanding freedom of the press. benjamin franklin's brother had been imprisoned for a month by the massachusetts assembly for printing in his newspaper criticisms of the assembly. he was forbidden to print the paper. benjamin supported him by publishing extracts from other papers, such as "without freedom of thought, there can be no such thing as wisdom; and no such thing as public liberty without freedom of speech... whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech; a thing terrible to public traitors." by statute of , the new york house of representatives was prohibited from meeting or voting until they provisioned the king's troops as required by law. in , harvard college seated its students in class in alphabetical order instead of by social rank according to birth. by , the colonies' boycott of british goods in protest of the new duties cause these imports to decline so much that british merchants protested. so the duties were dropped, except for that on tea, which was retained as a matter of principle to assert the power of the crown to tax the colonies. then in the east india company was allowed to sell tea directly to the colonies to help it avoid bankruptcy. the effect of this was to lower the cost of tea in the colonies by avoiding the english middleman, and the american middleman, but also to give the east india company a monopoly. the colonies felt threatened by this power of britain to give monopolies to traders. when the tea ships arrived in boston in late , bostonians held a town meeting and decided not to let the tea be landed. they threw this cargo of tea, worth about , pounds, overboard. this boston tea party was a direct challenge to british authority. in response, parliament closed the port of boston until compensation was made to the east india company. by statute of , no one was to enter or exit the port of boston or else forfeit goods, arms, stores, and boats that carried goods to ships. every involved wharf keeper was to forfeit treble the value of the goods and any boats, horses, cattle, or carriages used. ships hovering nearby were to depart within six hours of an order by a navy ship or customs officer or be forfeited with all goods aboard, except for ships carrying fuel or victuals brought coastwise for necessary use and sustenance of inhabitants after search by customs officers, and with a customs official and armed men for his defense on board. this statute was passed because of dangerous commotions and insurrections in boston to the subversion of the king's government and destruction of the public peace in which valuable cargoes of tea were destroyed. later, the governor was given the right to send colonists or magistrates charged with murder or other capital offenses, such as might be alleged to occur in the suppression of riots or enforcement of the revenue laws, to england or another colony for trial when he opined that an impartial trial could not be had in massachusetts bay. a later statute that year altered the charter of massachusetts bay province so that the choice of its council was transferred from the people to the king to serve at his pleasure, and the appointment and removal of judges and appointment of sheriffs was transferred to the governor to be made without the consent of the council. this was due to the open resistance to the execution of the laws in boston. further, no meeting of freeholders or inhabitants of townships was to be held without consent of the governor after expressing the special business of such meeting because there had been too many meetings that had passed dangerous and unwarranted resolutions. also, jurors were to be selected by sheriffs rather than elected by freeholders and inhabitants. the commander of the british troops in north america was made governor of massachuseetts. king george thought that the colonists must be reduced to absolute obedience, even if ruthless force was necessary. the people of massachusetts were incensed. they were all familiar with the rights of magna carta since mandatory education taught them all to read and write. mandatory education every township of fifty households had to appoint one person to teach all children to read and write. every one hundred families had to set up a grammar school.) the example in massachusetts showed other colonies what england was prepared to do to them. also disliked was the policy of restricting settlement west of the allegheny mountains; the take over of indian affairs by royal appointees; the maintenance of a standing army of about , men which was to be quartered, supplied, and transported by the colonists; and expanded restrictions on colonial paper currencies. the virginia house of burgesses set aside the effective date of the port bill as a day of prayer and fasting, and for this was dissolved by its governor. whereupon its members called a convention of delegates from the colonies to consider the "united interests of america". this congress met and decided to actively resist british policy. as opposition to british rule spread in the colonies, a statute was passed stating that because of the combinations and disorders in massachusetts, new hampshire, and connecticut, and rhode island to the destruction of commerce and violation of laws, these inhabitants should not enjoy the same privileges and benefits of trade as obedient subjects and that therefore no goods or wares were to be brought from there to any other colony, and exports to and imports from great britain were restricted, on pain of forfeiting the goods and the ship on which they were laden. there vessels were restricted from fishing off newfoundland. these conditions were to be in force until the governors were convinced that peace and obedience to laws was restored. later in , these trade restrictions were extended to new jersey, pennsylvania, maryland, virginia, and south carolina. in , since all the thirteen colonies had assembled an armed force and attacked british forces, these trade restrictions were extended to delaware, new york, georgia, and north carolina and expanded to prohibit all trade during the present rebellion to prevent assistance to them. war had started; the new rifle was used instead of the musket. by statute of , anyone harboring of army or marine deserters in the colonies forfeited pounds anyone persuading a soldier or marine to desert drew a forfeiture of pounds or else up to six months in prison without bail and one hour in the pillory on market day. bounties were made available to vessels from and fitted out in great britain for newfoundland fishing. any shipmaster carrying as passengers any fisherman, sailor, or artificer to america forfeited pounds because such men had been seduced from british fishing vessels in newfoundland, to the detriment of the fishing industry. the many years of significant achievements of the colonists, such as taming the wilderness and building cities, had given them confidence in their ability to govern themselves. the average colonial family had a better standard of living than the average family in england. many of its top citizenry had reached their positions by hard work applied to opportunities for upward mobility. with the confidence of success, the american colonies in declared their independence from britain, relying on the principles stated by john locke and jean jacques rousseau that man was naturally free and all men equal, and that society was only created with their consent. issac's newtons's unified laws of the universe had contributed to this idea of a natural law of rights of men. thomas jefferson wrote a declaration of independence which listed the colonies' grievances against the crown which reiterated many of the provisions of the petition of right and bill of rights, specifically dispensing with and suspending laws, maintaining a standing army and quartering troops without legislative consent, imposing arbitrary taxation, encouraging illegal prosecutions in strange courts, and corrupting the jury process. it was adopted about july , . thereafter, the american colonies did not follow english law. past english law became the legal heritage of the united states of america. the law anyone who feloniously steals or aids in the stealing of goods, wares, or merchandise over s. from a shop, warehouse, coach house, or stable, by night or by day, whether the owner is present or not, whether there is a break in or not, may not have benefit of clergy. anyone stealing goods of s. worth from a ship on any river or in any port or creek or from any wharf may not have benefit of clergy. anyone receiving or buying goods they know to be stolen or who harbors or conceals any burglars, felons, or thieves knowing them to be such shall be taken as accessory to the felony and shall suffer death as punishment if the principal felon is convicted. a person taking money or reward for helping any other person to stolen goods or chattels is guilty of felony unless he brings the thief to trial. as of , any person convicted of grand or petty larceny or any felonious stealing or taking of money, goods, or chattels, either from the person or from the house of any person who is entitled to benefit of clergy and who is liable only to whipping or burning in the hand may instead be transported to the american colonies to the use of any person who will pay for his transportation for seven years. any person convicted of an offense punishable by death and without benefit of clergy and buyers and receivers of stolen goods may be given mercy by the king on condition of transportation to any part of america to the use of any person who will pay for his transportation, for fourteen years or other term agreed upon. returning before the expiration of the term is punishable by death. anyone assaulting another with an offensive weapon with a design to rob may be transported for seven years. any person armed with swords, firearms, or other offensive weapons and having their faces blackened or otherwise being disguised, who appears in any forest, park, or grounds enclosed by a wall or fence wherein deer are kept (including the king's deer) or in any warren or place where hares or conies are kept or in any high road, open heath, common, or down, or who unlawfully hunts, wounds, kills, or steals any deer or steals any hare or rabbit or steals any fish out of any river or pond or who unlawfully and maliciously breaks down the head or mound of any fish pond, causing the loss of fish, or who unlawfully and maliciously kills, maims, or wounds any cattle, or who cuts down any trees planted in any avenue or growing in any garden or orchard for ornament, shelter, or profit, or who sets fire to any house, barn or out house [outer building], hovel, or stack of grain, straw, hay or wood, or who willfully and maliciously shoots any person in any dwelling house or other place, or who sends any letter with no signature or a fictitious signature, demanding money, venison, or other valuable thing, or who forcibly rescues any person lawfully in custody for any of these offenses, or who procures others by gift or promise of money or other reward to join with him in any such unlawful act is guilty of felony and shall suffer death without benefit of clergy. persons abetting them are also guilty of felony and shall suffer death without benefit of clergy. attainder shall not work corruption of the blood, loss of dower, or forfeiture of lands, goods, or chattel. the persons sustaining damages can recover pounds or less from the hundred, with inhabitants paying proportionately, unless one of the offenders is convicted within six months. if other hundreds have not diligently followed the hue and cry, they shall pay half such damages. in , it was required that there be notice to the constable or other officer or tythingman and public notice in the london gazette describing the robbery, offenders, and goods taken before the hundred had to pay damages. also, it did not have to pay damages if one offender was apprehended with days of publication in the london gazette, but did have to pay the apprehender pounds. in was also included letters threatening killing people or burning houses, barns or stacks of grain, hay, or straw, without any demand. also, persons who rescued such offenders from gaol were given the same penalty. later, persons obtaining money or goods by false pretenses with an intent to defraud or cheat or sending a letter without a true signature threatening to accuse any person of a crime with an intent to extort money or goods, are punishable by fine and prison, pillory, or whipping or transportation for seven years. later, no person may recover more than pounds after a hue and cry unless there are at least two witnesses to the robbery. no one may advertise a reward for return of things stolen or lost with no questions asked, because this has resulted in thefts and robberies. anyone stealing sheep or cattle or parts thereof is a felon and shall suffer death without benefit of clergy. persons who steal or aid in stealing any lead, iron bar, iron gate, palisade, or iron rail fixed to any house or its outhouses, garden, orchard, or courtyard is guilty of felony and may be transported for seven years. in also included was copper, brass, bell-metal, and solder; buyers and receivers; and mills, warehouses, workshops, wharves, ships, barges, and other vessels. search warrants were authorized in case of suspicion. officers and solicited buyers and receivers were required to take persons who at night were reasonably suspected of having or carrying such items, to an accounting before a justice of the peace. also a notice was put in the newspaper for any owners to claim such. if the person did not give a satisfactory account of the items, he was guilty of a misdemeanor punishable by forfeiture of pounds or prison up to one month for the first offense, pounds or prison for two months for the second offense, and pounds or prison for any subsequent offense (without bail). an officer or solicited buyer or receiver who did not take a suspect to a justice of the peace was punishable by the same penalties except the amounts of forfeiture were pound, pounds, and pounds respectively. a felon who brought two buyers or receivers to justice was to be pardoned. a description of any goods and the appearance of a rogue or vagabond or idle and disorderly person shall be advertised in a public paper for identification by the owner as stolen. pawning goods without consent of the owner is punishable by forfeiture of s. or hard labor for fourteen days with whipping there. maliciously destroying river banks resulting in lands being overflowed or damaged is a felony for which one shall suffer death without benefit of clergy. later, transportation for seven years was made an alternative. the punishment for forgery or counterfeiting or assisting in such or claiming a counterfeit item is good while knowing that it is not, with an intent to defraud is death without benefit of clergy. the punishment for perjury or subordination of perjury is hard labor in the house of correction for up to seven years or transportation for up to seven years. the punishment for altering numbers on bills of exchange or other payment papers is death. it is high treason to counterfeit the coinage. a person who tenders coin, knowing it to be false, shall spend six months in prison and acquire sureties for good behavior for the next six months. if he offends again, he shall spend two years in prison and acquire sureties for good behavior for the next two years. the third offense is felony without benefit of clergy. in , making or possessing any frame, mould, or instrument for forging paper notes of the bank of england and putting this identification thereon is felony with penalty of death without benefit of clergy. anyone who forges promissory notes, bills of exchange, or inland bills of the bank of england by engraving or etching on metal or wood "bank of england" or "bank post bill" shall go to gaol for up to six months. anyone selling gold or silver ware, vessel, plate or other item large enough to be marked which has not been marked by its maker shall forfeit pounds or be kept at hard labor up to six months. anyone counterfeiting such mark shall forfeit pounds. later, vendors of these items were required to be licensed and the penalty for counterfeiting was raised to felony for which one shall suffer death without benefit of clergy. later still, transportation for fourteen years was allowed as an alternative. if an item was not all silver, e.g. had metal underneath, pounds was to be forfeited. in , receivers of stolen jewels and gold and silver plate and watches knowing them to be stolen, in cases of burglary and highway robbery, were subject to transportation for years. anyone who willfully and maliciously set on fire any mine or pit of coal is guilty of felony and shall suffer death without benefit of clergy. anyone who willfully and maliciously floods a coal work, mine pit or who makes underground cavities or passages with intent to destroy or damage such, or obstructs any sough or sewer made for draining such, which has been held in common for years, shall forfeit treble damages. this is to deter these offenses, which have been done to enhance the price of coals and gain a monopoly thereof. if twelve or more people who riotously and tumultuously assemble and disturb the peace, do not disburse within an hour of an order to disburse by a justice or sheriff or mayor, they shall be deemed felons without benefit of clergy. any people pulling down or destroying a church, dwelling house, barn, stable, or other out house; any mill; any engine used for draining water from any coal, lead, tin, or copper mines, or for drawing coals from mines; or bridge, wagon, or fences used in such industry will be deemed felons without benefit of clergy and may be transported for seven years. the cost of repair is to be borne by the hundred or town. the earlier statute that substituted burning in the cheek for burning in the hand is repealed because this not only did not deter offenders, but on the contrary, made them unfit for honest livelihoods and therefore more desperate. those convicted of theft or larceny shall be burnt in the hand and may be kept at hard labor in a house of correction for - months, without bail. anyone stealing goods off shipwrecks, or putting out a false light to bring a ship to danger, or beating or wounding with an intent to kill or otherwise obstructing a person escaping from the ship to save his life shall suffer death without benefit of clergy. except that goods of small value taken without violence shall be punished as petty larceny. the houses of suspect people may be searched by warrant. if there are goods found or if people are found offering goods to sell, they may be ordered by a justice to give an account of these goods. if the account is not satisfactory, the punishment is forfeiture of treble their value or six months in prison. a reasonable reward may be given to the discoverer. anyone assaulting a magistrate or officer involved in salvage work shall be transported for seven years. armed persons up to three in number assembled to assist in illegal exporting or running, landing, or carrying away prohibited or uncustomed goods, and any person apprehended by any revenue officer, and anyone with his face blackened or masked who obstructs, assaults, opposes, or resists any revenue officer seizing such goods, or who shoots at or maims or wounds any revenue officer attempting to go on any ship shall suffer death as felons without benefit of clergy or serve as commons sailors in the navy for at least one year. harborers of such offenders will be transported for seven years. the hundreds shall pay pounds for each revenue officer killed, and up to pounds for each one beaten, wounded, or maimed, and damages up to pounds for goods, unless an offender is caught and convicted in six months. there is a reward of pounds to an apprehender, and pounds for an attempt to apprehend in which one loses a limb or eye or is maimed or wounded, and pounds to his family if he is killed. an offender who brings two of his accomplices to justice will be acquitted and rewarded pounds for each such accomplice. later, an incentive was given to customs officers to have a portion of the proceeds of the sale of such goods seized by them, such as / for wrought silks and calicoes, and / for tea, coffee, foreign brandy, and rum. still later, any person could seize wrought silk, including ribbons, laces, and girdles containing it, from the importer or retailer, and the importer was to forfeit pounds, and any import assistants pounds, and retailers or concealers pounds, with one half going to the suer. also, the goods were to be publicly burnt. still later, the penalty was increased to forfeiture of pounds for all offenders, but not including wearers, and the goods were to be publicly sold for export rather than burnt. then the import of silk stockings, silk mitts, and silk gloves was prohibited for the support of the english silk industry. retailers, sellers, and concealers of such were to forfeit the goods and pounds. search warrants could be issued. in , importers, sellers, and manufacturing users of most foreign wrought silks or velvets were to forfeit the goods and pounds. the goods were sold for export with the proceeds going / to the king, and / to the seizing officer. the wearer was not liable. the burden of proof of the place of manufacture was on the person prosecuted rather than on the prosecutor. persons breaking into houses or shops to destroy any wool or silk being made or tools or racks used shall suffer death as felons, to prevent combinations of workmen. in , bounties were made available to american exporters of raw silk to great britain, whose climate was not conducive to the growing of mulberry trees on which silk worms feed. in , cotton printed, stained, or dyed that has been manufactured in great britain may be worn and used, but must have a mark woven in the warp that it was manufactured in great britain. persons importing other such cloth shall forfeit it and ten pounds per piece. persons selling such with a counterfeit stamp with an intent to defraud shall suffer death without benefit of clergy. the protective measures for english silk manufacture did not work well. any pirate, accessory to piracy, commander or master or other person of any ship or vessel who trades with a pirate or furnishes him with ammunition or provisions of fits out a ship to trade with pirates shall suffer death and loss of lands, goods, and chattels. seamen maimed in fighting pirates may be admitted into greenwich hospital. (this hospital received support from duties paid by vessels of the realm and of the colonies.) masters or seamen not fighting shall forfeit their wages and spend months in prison if the ship is taken. masters shall not advance to any seamen above half his wages since deserting is the chief occasion of their turning into pirates. in london penalties for crimes against property rose so that by , a child could be hanged for stealing a handkerchief worth s. from a person's body. trade and the economy boomed in time of war, buttressed by the increased production in the coal, iron, steel, shipbuilding, and cloth industries. but peace brought depression and much misery, including the imprisonment of many debtors. when very many were imprisoned, statutes allowed release on certain conditions. after assets were paid to creditors in proportion to the amounts owed to them, debtors could be discharged from prison if they owed no party more than pounds (later no restriction and still later, pounds, and even later, pounds, and in , pounds, and in , pounds) and take an oath that they have less than pounds ( in ) worth of property (including s. in money in ), because there were so many debtors in prison who were impoverished by war losses and other misfortunes in trades and professions, and were totally disabled from paying their creditors, and they and their families either starved or became a burden to their parishes and became an occasion of pestilence and other contagious diseases. exempted were those debtors for whom there was an objection by one of their creditors who paid for the maintenance of that debtor in prison. prisoners discharged were also discharged from chamber [cell] rent and gaolers' fees, but not from their debts to creditors. during war, no male prisoner could be discharged unless he enlisted in the royal army or navy until the end of the war. in , the discoverer of any asset of a debtor not listed by that debtor was to receive a reward of pounds per hundred, and anyone concealing an asset of a debtor was to forfeit pounds as well as double the value of the asset. a person declared bankrupt shall subsequently be examined from time to time as to their goods, money, or other effects or estate to prevent the frauds frequently committed by bankrupts. a default or willful omission shall be deemed felony without benefit of clergy. a bankrupt or other person concealing goods to the value of at least pounds or his books with intent to defraud is a felony without benefit of clergy. a debtor refusing to come to court for examination or hiding assets of more than pounds is guilty of felony and his goods and estate shall be divided among his creditors. later, a bankrupt coming to an examination was allowed to keep (or / or ) pounds per , up to a maximum of (or or , respectively) pounds if he paid his creditors s. (or s. d. or s. respectively) per pound. his future estate was still liable to creditors, excepting tools of trade, necessary household goods, bedding, furniture, and wearing apparel of the family up to pounds, if it could pay every creditor s. per pound. if he didn't pay this, he could be imprisoned. bankrupts excepted from the benefits of this act are those who lost pounds in any one day or pounds in the preceding year from gambling or wagers. no goods or chattels on lands or tenements which are leased for life or lives or term of years or at will or otherwise "shall be liable to be taken by virtue of any execution on any pretence whatsoever unless the party at whose suit the said execution is sued out shall before the removal of such goods from off the said premises by virtue of such execution or extent pay to the landlord" all money due as rent. if the lessee fraudulently or clandestinely conveys or carries off his goods or chattels with intent to deprive the landlord or lessor from distraining the same for arrears of such rent, the lessor or landlord may, within five days, seize such goods and chattels as a distress for the arrears of rent and may sell them as if actually distrained on the premises. every person under and every woman-covert who is entitled by descent or will to be admitted tenants of any copyhold lands or hereditaments may be ordered to appear by a guardian or attorney to be compelled to be so admitted and to pay such fines as are owing by the lands. if one is so admitted, but does not pay, the lord may enter the lands and receive its rents, but not sell timber, until the fine and costs are satisfied, after which the land is to be given back and may not be forfeited to the lord. tenants holding over any lands after their term expired and after demand for possession was made shall pay double the yearly value of such to the landlord. the landlord may reenter and eject a tenant if rent is in arrears for / year. landlords may distrain within days and sell goods and chattels fraudulently or clandestinely carried off the premises by renters in arrears of rent. this applies to goods sold to others privy to the fraud. they may use force if necessary to break open houses upon giving a justice of the peace reasonable grounds to suspect and to break open other buildings in the presence of a constable. the renter is to forfeit double the value of such. the landlord may distrain the renter's cattle on any common or any growing grain, roots, or fruit. attornments of renters made to strangers who claim title and turn the landlord out of possession are void. chief leases may be renewed without surrendering all the under leases. this is to prevent subtenants from delaying the renewal of the principal lease by refusing to surrender their leases, notwithstanding that they have covenanted to do so. but the rents and duties of the new subleases may not exceed those of their former leases. any person claiming a remainder, reversion, or expectancy in any estate upon a person's death, who has cause to believe that that person is dead and that the death is being concealed by the person's guardian, trustee, husband, or other person, may request yearly an order in chancery for the production of such tenant for life. upon refusal, the tenant for life shall be deemed dead. as of , all devices, legacies, and bequests made by will in great britain or the colonies had to be in writing and witnessed by three witnesses, or would be held void. no witness was to receive anything by the will that he witnessed. an accessory before or after the fact of felony may be prosecuted and tried not only if the principal accused felon has been convicted, but even if he stood mute or peremptorily challenged over persons to serve on the jury. the accessories shall be punished the same as if the principal had been attainted. buyers and receivers of stolen goods may be prosecuted and punished if they knew the goods to be stolen, even if the principal felon has not been convicted. the punishment will be as for misdemeanor by fine and imprisonment. this is to deter the counselors and contrivers of theft and other felonies and the receivers of stolen goods from taking advantage of the former rule that an accessory could not be convicted or punished unless the principal had first been attainted. and if any captain or mariner or other officer belonging to any ship willfully casts away, burns, or otherwise destroys that ship to the prejudice of its owners or merchants loading goods onto the ship, he shall suffer death as a felon. journeymen shoemakers or employees of such who sell or pawn boots, shoes, slippers, cut leather or other materials for making such goods which are not his proper goods, or exchange for worse good leather which has been entrusted to them, shall for the first offense, recompense the injured person, or if his goods are insufficient for distress, may be whipped. for the second offense, he shall be sent to hard labor in a house of correction for - days. a person who buys or receives or takes in pawn such goods shall suffer the same penalties. justices of the peace may issue warrants to search houses and buildings in the daytime if there is "just cause to suspect" such goods therein based upon information given to him under oath. anyone employed in the working up of woolen, linen, fustian, cotton, or iron manufacture who embezzles or purloins any materials for their work shall forfeit double the value of the damages done and anyone convicted thereof may be put into the house of correction until he pays, or if he can't pay, to be publicly whipped and kept at hard labor for no more than days. persons convicted of buying or receiving such materials shall suffer like penalties and forfeitures as one convicted of embezzling or purloining such materials. laborers employed in such manufacture must be paid in coin and not in cloth, victuals, or commodities in lieu thereof. leatherworkers were added with a penalty of up to double the value. later this statute was amended to include a penalty for the second offense of forfeiture of four times the value, or else hard labor at a house of correction for - months and whipping once or more in the market town. like penalties were given for buyers of such material knowing it to be false. one who neglected finishing and delivering such goods because he was leaving this employment was to be sent to the house of correction for up to one month. the penalty for possessing or offering to sell any hare, pheasant, partridge, moor or heath game or grouse by any carrier, innkeeper, victualer, or alehouse keeper is pounds, / to the informer, and / to the poor of the parish. if unable to pay, the offender shall be placed in the house of correction for three months without bail. unauthorized persons keeping or using greyhounds, setting dogs, or any engine to kill game shall suffer the same penalties. in , anyone killing hare at night or using any gun, dog, or other engine to take or kill or destroy any hare, pheasant, partridge, moor game, heath game, or grouse in the night shall be whipped and also go to gaol or the house of correction for - months without bail for the first offense, and for - months without bail for any further offense. if such occurs on a sunday, the offender must forfeit - pounds or go to gaol for - months. in , no one may kill or take or possess any heath fowl or any grouse except at a limited period during the year. each manor may have only one gamekeeper allowed to kill game such as hare, pheasant, partridge and only for his household's use. this gamekeeper must be either qualified by law or a servant of the land's lord. other persons possessing game or keeping a greyhound or setting dogs or guns or other devices to kill game must forfeit them and five pounds. anyone killing or attempting to kill by shooting any house dove or pigeon shall forfeit s. or do hard labor for one to three months. excepted are owners of dove cotes or pigeon houses erected for the preservation and breeding of such. a gamekeeper or other officer of a forest or park who kills a deer without consent of the owner must forfeit pounds per deer, to be taken by distress if necessary, and if he can't pay, he is to be imprisoned for three years without bail and set in the pillory for two hours on some market day. a later penalty was transportation for seven years. anyone pulling down walls of any forest or park where deer are kept, without the consent of the owner, must forfeit pounds and if he can't pay, he is to be imprisoned for one year without bail and spend one hour in the pillory on market day. later, the killing of deer in open fields or forests was given the same penalties instead of only the monetary penalty prescribed by former law (former chapter). the penalty for a second offense was given as transportation for seven years. anyone beating or wounding a gamekeeper with an intent to kill any deer in an open or closed place was to be transported for seven years. anyone who apprehends and prosecutes a person guilty of burglary or felonious breaking and entering any house in the day time shall be rewarded pounds in addition to being discharged from parish and ward offices. justices of the peace may authorize constables and other peace officers to enter any house to search for stolen venison. any person apprehending an offender or causing such to be convicted who is killed or wounded so as to lose an eye or the use of a limb shall receive pounds. any person buying suspect venison or skin of deer shall produce the seller or be punished the same as a deer killer: pounds or, if he couldn't pay, one year in prison without bail and one hour in the pillory on market day. an offender who discloses his accomplices and their occupations and places of abode and discovers where they may be found and they are subsequently convicted, shall be pardoned. all persons pretending to be patent gatherers or collectors for prison gaols or hospitals and all fencers, bearwards, common players of interludes, minstrels, jugglers, and pretended gypsies, and those dressing like egyptians or pretending to have skill in physiognomy, palm-reading, or like crafty science, or pretending to tell fortunes, and beggars, and all persons able in body who run away and leave their wives or children to the parish shall be deemed rogues and vagabonds. apprehenders of such persons bringing them before a justice of the peace may be rewarded s. any constable not apprehending such shall forfeit s. persons wandering outside the place determined by a justice of the peace to be his settlement may be whipped on the back until it is bloody or sent to hard labor at a house of correction. if he was dangerous and incorrigible, for instance as indicated by swearing falsely before a justice of the peace, he could suffer both punishments with the whipping being on three market days. if he escaped from the house of correction, it was felony. if he has been absent for more than two years, he could be put out as an apprentice for seven years in the realm, in the colonies, or in a british factory beyond the seas. included later were performers for gain from outside their parish of any play, tragedy, comedy, opera, farce or other entertainment of the stage, including performances in public places where wine, ale, beer, or other liquors are sold, or else forfeit pounds. exempted were performances authorized by the king in westminster. unlicensed places of entertainment are deemed disorderly (like bawdy houses and gaming houses) because they increase idleness, which produces mischief and inconvenience. persons therein may be seized by a constable. persons keeping such a place shall forfeit pounds. no licensed place of entertainment may be opened until : p.m. later there was an award of s. for apprehending a person leaving his wife and children to the parish, living idly, refusing to work at going rates, or going from door or placing themselves in the streets to beg. this includes begging by persons who pretend to be soldiers, mariners, seafaring men, or harvest workers. these rogues and vagabonds shall be sent to hard labor at a house of correction for up to one month. the real soldiers, mariners, seafaring men, and harvest workers shall carry official documents indicating their route and limiting the time of such passage. persons pretending to be lame who beg are to be removed. if he comes back to beg, his back may be whipped until bloody. if a constable neglects this duty, he shall forfeit s. masters of ships bringing in vagabonds or beggars from ireland or the colonies shall forfeit five pounds for each one. this money shall be used for reconveying such people back at a price determined by a justice of the peace. a master of a ship refusing to take such a person shall forfeit five pounds. these vagabonds and beggars may be whipped. anyone who profanely curses or swears shall suffer the following penalties: day laborer, common soldier, common sailor, common seaman - s., anyone else below the degree of gentleman - s., gentlemen and above - s., and for the second offense, a double fine, for further offense, a treble fine. if a person can't pay, he shall be put to hard labor at a house of correction for ten days, or if a common soldier, common sailor, or common seaman, he shall be set in the stocks for - hours. this is to prevent the provocation of divine vengeance. anyone setting up or maintaining lotteries or deceitful games must forfeit pounds, or go to prison up to months. any one who plays at such, such as by drawing lots or using cards or dice, must forfeit pounds. sales of lottery items, such as houses, lands, plate, jewels, or ships, are void and these items will be forfeited to any person who sues. such have caused many families to become impoverished, especially through their children or through the servants of gentlemen, traders, and merchants. backgammon games are exempt. later, people who lost up to ten pounds in deceitful gaming were allowed to sue to recover this money from the winners. also, anyone winning or losing ten pounds at one time or twenty pounds within hours shall be fined five times the value of such. offenders discovering others, who are convicted, are indemnified from all penalties and shall be admitted to give evidence. no one may run more than one horse, mare, or gelding in a horse race. no prize may be under pounds value. this is because a great number of horse races for small prizes have contributed to idleness, to the impoverishment of the meaner sort of people, and has prejudiced the breed of strong and useful horses. wagers and agreements in the nature of puts and refusals relating to prices of stocks or securities are void. those making or executing such agreements must forfeit pounds. those selling stock which one does not possess must forfeit pounds. brokers negotiating such agreements must forfeit pounds. only a person with an interest in the life or death of another may have insurance on this other, to prevent the mischievous kind of gaming that has been introduced. apples and pears may not be sold by any measure other than a standard water measure, or else forfeit s., one-half to the informer, and one-half to the poor, except for measures sealed by the company of fruiterers. this is to decrease the suits between buyers and sellers. there shall be enough silver and gold on silver and gold plated silk thread and wire so that it does not crumble off, thereby wasting the bullion of the nation. this is also to encourage its export by making it competitive in trade with such foreign articles, which may not be imported. malt to be sold or exported must not be fraudulently mixed with unmalted grain to lower duties payable or else forfeit s. any one who adulterates coffee with water, grease, butter, and such shall forfeit pounds, / to the king, and / to the suer. walnut tree leaves, hop leaves, sycamore leaves and such may not be made to imitate tobacco leaves for sale or else forfeit s. per pound. persons near london may not make unsound, hollow, or improperly heated bricks. makers of narrow woolen cloths must weave or set in the head of every piece his initials or else forfeit one pound. this is to prevent frauds and abuses, particularly in stretching and straining the cloth. the fulling mill owner must append his seal of lead with his name and with his measurements. the searcher to be appointed must measure such cloths when wet for conformity to standard measurements and append his seal with his measurements. he may also inspect any places he chooses. in , any wool-making employee not returning all working tools and implements and wool and all materials with which entrusted back to his employer, or who fraudulently steams, damps, or waters such wool, or who takes off any mark on any piece of cloth, shall go to the house of correction for one month. if he absconds with or sells such or anyone fraudulently buys or receives such from him, a search warrant may be issued to seize any other such tools or material. if found, the possessor may be brought to account before a justice of the peace, and if his account is not satisfactory, he shall forfeit such. a search warrant may also be issued for houses on "just cause to suspect" by oath of a credible witness. for a second offense, the penalty is up to three months in a house of correction. for a third offense, the penalty is up to six months in a house of correction and public whipping. bakers must mark their bread with w for white, wh for wheaten, and h for household or else forfeit s. to the informer. in , a new assize of bread set prices for rye, barley, oats, and beans by the bushel. the prices for the three qualities of wheat, for wheaten (prized and unprized), and for household grain by the bushel were to be determined from within a statutory range by the local mayor or justice of the peace. mayors and justices of the peace were to determine a fair profit for their local bakers for all the types of bread. a miller, mealman, or baker adulterating bread was to forfeit s. pounds, part of which money could be used in publishing his name, abode, and offense in the local newspaper. later, there was a forfeiture of - s. for every ounce underweight. household bread was to be / cheaper than wheaten or forfeit - s. bread inferior to wheaten was not to be sold at a price higher than household or else forfeit up to s. if the forfeiture was not paid, it could be levied by distress, or otherwise the offender was to spend one month in gaol or a house of correction. straw to be sold in london must be sound, firmly bound in a truss, and of a given weight or else forfeit it and s. if no truss, and s. if in truss but underweight or of mixed quality. handlers must keep registers of sellers, buyers, weights, dates of sale, and prices or else forfeit - s. frame-work knitted pieces and stockings shall be marked with the correct number of threads by the master, frame-work knitter, or master hosier, or forfeit the goods and pounds. if a journeyman apprentice, or servant employ does not mark correctly, he shall forfeit the goods and s.- s. sellers of such shall forfeit the goods and pounds per piece. at every fishing season, the quantity of salt, foreign or domestic, used by a proprietor for curing fish for export shall be accounted and sworn to so that it can be compared with the quantity of fish exported by the proprietor to ensure that the salt duties are fully paid, or else forfeit pounds. if such salt is sold for other uses than curing fish, the proprietor is to forfeit s. per bushel sold and the users thereof, to forfeit s. per bushel bought, delivered, or used. if one can't pay, he is to be whipped and put to hard labor in a house of correction for up to three months. agreements between coal owners, lightermen, fitters, master or owners of ships, hindering the free sale, loading, and unloading, navigating, or disposing of coals are illegal, null, and void. this is engrossing and has caused the price of coals to go up. no coal trader or dealer may use his own lighters, barges, or other vessels to carry coals on the thames river to and from any ship and to and from any wharf, dock, or creek because this has impaired the business of the watermen and wherrymen, whose vessels must now be registered and display such mark on their hulls. no lightermen nor buyers of coals may act as agent for any master or owner of a ship importing coals into london or else forfeit pounds, because this combination has caused the price of coal to go up. selling one sort of coal for another is punishable by forfeiture of pounds. only standard size coal sacks may be used for selling coal and they must be sealed and stamped by an official at the guildhouse before sale. the mayor and aldermen of london may set the price of coals coming into this port. in other areas, justices of the peace set the prices of coals which allowed "a competent profit". if a merchant refused to sell at that price, the justice of the peace could authorize seizure and sale by officers. later, coal measurers must give the coal cart driver a ticket with the name of the sellers and consumers, the quantity and quality of the coal, its price, the date of sale, and the name of the cart driver or else forfeit pounds. the cart driver must give this ticket to the consumer or forfeit pounds. if coal is carried by cart without a ticket, the seller forfeits pounds and the driver pounds. any owner of timber trees, fruit trees, and other trees used for shelter, ornament, or profit, which are cut down or otherwise destroyed shall be made good by his parish or town, as is an owner of hedges and dikes overthrown by persons in the night. in , anyone cutting down or destroying any oak or other timber trees at night shall forfeit up to pounds for the first offense, up to pounds for the second offense, and shall be transported to the colonies for seven years for any further offense. anyone digging up or destroying or carrying away any root, shrub, or plant worth up to s. in a garden, nursery, or other enclosed ground at night shall forfeit up to pounds for the first offense, up to pounds for the second offense, and shall be transported to the colonies for seven years for any further offense. anyone not paying is to be gaoled. aiders and buyers who know the item was stolen shall incur the same penalties. later, many other types of trees, such as beach, ash, elm, cedar, and walnut were included as timber trees, and hollies, thorns, and quicksets included as plants. any person using violence to hinder the purchase or transportation of grain, e.g. by beating or wounding a buyer; beating or wounding the driver or horse of a cart loaded with wheat, flour, meal, malt, or other grain, or cutting the harness of or driving away the horse, or cutting or carrying away the sacks of grain is to be put in the common gaol or house of correction with hard labor for - months, and whipped in the market place between : and : . the penalty for a second offense or for destroying a storehouse or granary where grain is kept to be exported or for taking or spoiling such grain, or for throwing such off a ship or vessel is transportation for seven years. the hundreds concerned are to pay damages up to a total of pounds, but only if notice is given to the constable within two days and there is an oath and examination before a justice of the peace within ten days of the owner or his servants. if any offender is convicted within a year, the hundreds are released. anyone who steals at night any cloth or wool or woolen goods set out to dry on racks shall forfeit treble damages, or if he can't pay, be sent to prison for three months without bail. for the second offense, he shall forfeit treble damages and be sent to prison for six months without bail. for the third offense, he shall be transported for seven years. upon complaint, a justice of the peace may authorize a constable or other peace officer to enter and search houses, outhouses, yards, and gardens of a person suspected by the owner. this person shall account to the justice of the peace and may bring a witness to his purchase of the items. if the account is unsatisfactory, he shall be penalized. anyone taking linens, fustians, or cottons set out for whitening, bleaching, or printing up to the value of s. in lands, grounds, or buildings may be transported for seven years. later, this penalty was increased to death without benefit of clergy or transportation for fourteen years. anyone stealing or maliciously pulling up or destroying any turnips on a person's land must pay damages or go to gaol for up to one month. he may be whipped. the penalty for a second offense is three months in a house of correction. this statute of was, in , extended to include potatoes, cabbages, parsnips, peas, and carrots. a penalty up to s. was added. evidence of the owner was to be taken. in , anyone who steals a dog or receives such knowing it to be stolen shall forfeit - pounds for the first offense, and - pounds for the second offense or go to gaol or the house of correction for - months and be publicly whipped there. search warrants may be issued to search for stolen dogs or their skins. one-half of the forfeiture will go to the informer. officers of the revenue who collude with importers to return to them goods which have been seized for nonpayment of duties shall forfeit pounds and lose office, unless they disclose their accomplices within two months. the importer shall forfeit treble the value of such goods. any ship not more than tons hovering on the coast with customable or prohibited goods may be boarded by a customs officer, who may demand bond for treble the value of the goods. in , persons contracting with artificers and manufacturers of wool, iron, steel, brass, and other metals, clockmakers, or watchmakers, to go to a foreign country and there receive greater wages and advantages shall forfeit pounds and spend months in prison for the first offense, and shall forfeit a sum determined by the court and spend months in prison for the second offense. an artificer or manufacturer not returning after warning is given by the ambassador is to forfeit hereditaments, goods, and lands and to be deemed an alien. later, in , cotton and silk were included and the penalty was increased to pounds and months in gaol for the first offense, and pounds and years in prison for the second offense. also, anyone exporting tools of wool or silk manufacture was to forfeit the tools and pounds. this statute was strictly enforced. in , tools of cotton and linen manufacture were included. in , all statutes against engrossing, forestalling, and regrating were repealed because they had prevented free trade and tended to increase prices, e.g. of grain, meal, flour, cattle, and other victuals. anyone assisting a felon (except for petty larceny) to try to escape from gaol, is guilty of felony and shall be transported for seven years. anyone assisting a person who owes or is to pay pounds to try to escape from gaol is guilty of a misdemeanor. in , prison keepers were indemnified from creditors for any escapes of debtors due to conspiracy and break out with weapons and firearms rather than due to negligence of the prison keeper, as had been occurring. no more than pounds of gunpowder may be kept in any building in london or westminster or suburbs thereof. later, no more than pounds of gunpowder were allowed to be kept therein for more than hours. buildings may be searched on "reasonable cause" shown to a justice of the peace. later, no more than pounds of gunpowder could be kept for more than hours near any town, or more than pounds for more than hours in any place. then no gunpowder could be conveyed by land over barrels or by water over barrels. it was customary for officers to take the oaths of allegiance and supremacy to any new monarch. when george i became king in , all civil and military officers, clergy, schoolmasters, and lawyers, solicitors, clerks, etc. living within miles of london had to take an oath of allegiance and a new oath that the person was not papist and agreed that no foreigners had jurisdiction in the realm, such as to excommunicate someone and thus declaring he could be legitimately killed. soon after, it was required that papists had to register their names and real estates. commissioners were appointed to make inquiries. if a person did not take the oaths or did not register, he was to forfeit / of his land to the king and / to a protestant who sued for such. this was in order to deter future rebellions against the king and efforts to destroy the protestant religion. as late as , there was a papist conspiracy to take the tower of london and the king, and make a catholic king. this resulted in the imprisonment of the conspirators and a new statute: persons not taking the oath of allegiance and above oath that they were not papist shall register their lands and yearly rents and pay double the land tax and , pounds. after payment, they are discharged from forfeiting / of their lands' rents for one year. papists enlisting in the army are liable to corporal punishment, but not death, as determined by a court martial. any mayor, bailiff, or other magistrate who is present at any meeting for public worship other than the church of england will lose office and is barred from any public office or employment. jews may not refuse suitable maintenance to their children who are christian to pressure them to convert back to judaism. black slaves were common for a time in london. this was a result of the voluminous triangle trade of manufactured goods from england, slaves from west africa, and sugar and tobacco from the west indies. slavery was largely abolished by judicial decision of chief justice mansfield in . if a sheriff does not answer for money collected for the exchequer, he shall forfeit treble damages to the aggrieved person, double the sum missing to the aggrieved person, pounds to the king, and pounds to the party who sues. if a sheriff take a fee for levying or collecting money due to the king (except d. for an acquittance) or take a sum for not levying money due, he is guilty of extortion, injustice, and oppression and shall forfeit treble damages and costs to the aggrieved person, and double the sum extorted to the aggrieved person. a sheriff may not levy more than d. for every s. of yearly income of any manor for up to pounds of income, and d. for value over pounds. no one may cut pine trees that are fit for masts of ship in new england without license by the queen or else forfeit pounds. later, pine trees on private property were exempted. citizens of great britain may sue colonial debtors by oath before british magistrates and a debtor's colonial lands and houses and negroes may be used to satisfy his debts. anyone pretending to act under a charter and taking subscriptions in great britain or the colonies must forfeit treble damages. no hats, including beaver hats, may be exported from any colony even to another colony because this has hurt british hat manufacture. the penalty is pounds. no one in the colonies except present hatmakers who are householders and journeymen may make hats unless they serve a seven year apprenticeship. no hatmaker in the colonies may have more than two apprentices at once. whaling ships near greenland were prohibited from returning until their hulls were full. vessels built or fitted out in america may engage in whaling. pig iron from the colonies may be imported free, but there may be no mill for slitting or rolling iron and no plateing-forge or other engine to work with a tilt hammer and no furnace for making steel erected or used in the colonies or else forfeit pounds. no paper bills of credit may be used in new england because such have depreciated. william blackstone lectured on law at oxford university in . as a result, the first professorship of english law was established. his lectures were published in as the "commentaries on the laws of england". they greatly influenced the american colonists and were the basis of legal education in england and america for years. they were comprehensive and covered real property, crime and punishment, court procedure, contract, corporations, and commercial law. he wrote "the great charter and charter of the forest" in . judicial procedure there were twelve common law justices of the court of the king's bench, court of common pleas, and court of the exchequer. the chief justices of all of these courts were paid partly from fees paid to the court. the other justices of these courts were paid completely by salary, which in was well over pounds per year. these justices were to continue in office even after a king died and could be removed only for good cause upon the address of both houses of parliament. the officers of these courts were attorneys. there was one justice at doctors' commons. the two chancery justices (since edward i) were the lord chancellor and the master of the rolls. the salary of the eleven masters of the court of chancery in was pounds per year. the officers of this court were solicitors. appeals from the exchequer could be made to a court of the king's bench and common pleas combined. appeals from common pleas could be made to the king's bench. decisions of the king's bench and other common law courts could be appealed to parliament's house of lords. the common law courts rode circuit twice a year in five circuits and once a year in the north circuit. so an accused person could spend up to a year in gaol waiting for trial. few prisoners were granted bail. in each common law court, the law justices in banc would hear demurrers [contentions that the other party was wrong in the law]. no one with an interest in a suit, including the plaintiff and the defendant, could give evidence. there was no power to amend pleadings, so misspelling of the defendant's name, for instance, could result in dismissal of the suit. in , the pleadings and indictments ceased to be in latin. in the common law courts, trespass in ejectment served the purposes of most of the actions involving land. assumpsit covered the whole province of debt, for which compurgation still existed, and much more. trover more than covered the old province of detinue, for which compurgation still existed. trespass still served for all cases in which the defendant had been guilty of directly applying force to the plaintiff's body, goods or chattels. trespass on the case covered miscellaneous torts. replevin was still used. covenant remained in use for the enforcement of promises under seal. account gradually came under the equity jurisdiction of chancery. common law writs of dower are largely superseded by the relief given to the doweress in the courts of equity, where new and valuable rights were given to her and to her personal representatives against the heir and his representatives. the actions of indebitatus assumpsit is being extended to actions upon quasi-contract, in which the element of contract is not required e.g. quantum meruit, where a contract is implied from the facts of the case. the deodand doctrine is still in force. in chancery, a plaintiff filed a complaint and interrogatories prepared by counsel. only in chancery could there be discovery, such as interrogatories [written questions]. court officials asked the questions of witnesses without the presence of the parties or their lawyers. officials wrote down the answers in their own terms. so there was no cross-examination possible. most decrees took many years to be made. the ordinary administrative court of first instance is that of one or two justices of the peace who issued orders in matters of public safety, public order, public morals, health, the poor, highways, water, fields, forests, fisheries, trade, building, fire, begging, and vagrancy. they examined suspicious persons and issued warrants for the removal of any person likely to become a public charge. the justice of the peace also regulated wages, servants, apprentices, and day laborers. in his judicial capacity, he tried all crimes and felonies except treason, though in practice death penalty cases were transferred to the assize justices. the justices of the peace of a hundred hold special sessions such as for appointment of parochial officers, highway disputes, and the grant of wine, beer, and spirit licenses. the appointment of overseers of the poor, authorization of parish rates, and reading of the riot act to mobs to disperse them, required more than one of the justices of the peace of the hundred to participate. all the justices of the peace of the county met four times a year at quarter sessions to hear appeals from penal sentences, to determine the county rate of tax, to appoint treasurers of the county and governors of the county prison and house of correction, to issue regulations on prices of provisions and on wages, to settle fees of the county officials, to grant licenses for powder-mills and other industries, to hear nuisance complaints such as those against parishes failing to keep their roads in repair, to make regulations for the holding of markets, to hear complaints concerning local government, and to register dissenting chapels. in more and more matters specified by statute, the quarter sessions heard appeals from the orders of individual justices of the peace instead of common law courts hearing them by writ of certiorari. the writ of certiorari allowed administrative decisions to be reviewed by the common law courts for compliance with law, competency of the court, and interpretation of the administrative law. the writ of habeas corpus appealed administrative decisions to imprison not only after arrest for criminal proceedings, but any coercive measure for enforcing an administrative order. the writ of mandamus was available for enforcing the injunctions of administrative law against towns, corporations, and all other authorities and private persons, where the ordinary punishments were insufficient. justices of the peace in rural areas were squires and in towns aldermen. in , justices of the peace were authorized to decide issues between masters and mistresses and their employees who were hired for at least one year. if a servant misbehaved, they could authorize reduction of wage, discharge, and hard labor at a house of correction up to one month. if a servant was not paid, he could authorize payment of wages up to pounds for an agricultural servant, and up to pounds for an artificer, handicraftsman, miner, collier, keelman, pitman, glassman, potter, or ordinary laborer. later, tinners and miners were added to the last category. in , employees of less than a year were included. in , justices of the peace were authorized to administer any oath for the purpose of levying penalties. to be a justice of the peace, one must have income of pounds a year from a freehold, copyhold, or customary estate that is for life or for a term of at least years, or be entitled to a reversion of lands leased for or or lives, or for any term of years determinable on the death of or or lives. excepted were peers, justices, and heads of colleges or vice chancellors at the universities. the justices of the peace were selected by the superintending sheriffs and lords lieutenant, the latter of whom were usually peer with a ministers' office or a high court official. no attorney or solicitor or proctor could be a justice of the peace unless the locality had justices of the peace by charter. no one may practice as an attorney in the courts of king's bench, common pleas, or exchequer until he has been examined by a judge of such court on his fitness and qualifications and has taken the oath to honestly demean himself and practice according to his best knowledge and ability. the same applies to a solicitor in the equity courts. this shall not exclude persons who have been bound to an attorney or solicitor for four years. attorneys and solicitors, with consent of an attorney of another court, may participate in proceedings of such other court. no attorney may have more than two clerks bound to him at one time. attorneys may be admitted as solicitors and vice-versa. the qualification for jury service is having land with an income over rents of at least pounds, with leases for years or more, or years, or any term determinable on one or more lives. being a freeholder is not necessary. in london, the qualification is being a householder and having lands to the value of pounds. no sheriff may excuse a qualified person from jury service for money or other reward. selection of jurors for each case is to be done by some impartial person pulling their names from a box. later, persons refusing jury service could be fined. in , the homes of john wilkes and others were searched for a seditious and treasonous published paper and all related papers because they had been rumored to have some relationship to the conception, writing, publication, or distribution of the paper. wilkes had such papers and was convicted of libel. he countersued for damages due to criminal trespass. the court held that general search warrants were subversive of the liberty of the subject of the search in violation of the british constitution, declared the statute void, and found for wilkes. the court of common pleas agreed on appeal and put the burden of proof on the persons searching to justify the search warrant. his decision gave support to william pitt's assertion that "every man's home is his castle". for actions under pounds in a superior court and actions under s. in an inferior court, the offender shall be served with process to appear in court rather than being arrested. for money at issue, an affidavit shall be taken. no more money may be taken for bail than the amount at controversy. this is to prevent frivolous and vexatious arrests. perjurers, forgers, those involved in barratry or suborning perjury, and pretenders practicing as attorneys or solicitors in the courts of law or equity shall be transported for seven years to the american colonies. unqualified people acting as attorneys or solicitors in the county court shall forfeit pounds. writs of error at variance from the original record or otherwise defective may be amended to correct the defect by the court where such writ is returnable. no judgment is to be reversed for any defect in any bill or writ, excepting an appeal of felony or murder, or misdemeanor. this is to prevent delays of justice. justices of the peace may correct defects of form on appeals to them. plaintiffs neglecting to go to trial after an issue has been joined may be nonsuited. poor persons may be paid up to d. to give evidence against felons. pirates may not be tried again for the same crime or for a certain crime and high treason. when the marine force was raised, the marines were also given protection from double jeopardy. a request for certiorari for removal of convictions, judgments, orders made by justices of the peace must be made within six months and after notice to the justice of the peace who may argue cause against granting certiorari. mercantile law was developed by the common law courts, especially the king's bench. the king was to appoint the marshal of the king's bench. the marshal was to select his inferior officers to hold office as long as they "behave themselves well within". these offices had been sold by james i to a certain person, his heirs, and assigns. the marshal was to keep the prison of this court in good repair from his fees and profits of office. the office of sheriff was now an accessory department of the common law courts for summons, executions, summoning the jury, and carrying out the sentence of the law. summons for excise offenses may be left at a person's abode, workhouse, or shop as well as on his person. the coroner's office now investigated unusual deaths with a jury from the neighborhood elected by county freeholders. the last beheading was of a scottish lord in ; he had been involved in an attempt to restore the stuarts to the throne. so many people came that some overcrowded bleachers fell down and crushed about spectators. henceforth, every sentence of death was by hanging, even for peers. in , the process of pressing a man to death, if he refused to plead to an indictment was abolished. instead, persons accused or indicted, in great britain or america, of felony or piracy who stand mute shall be convicted of such charge. property of a felon was still forfeited to the crown. from on were established special procedures for speedy decisions in local courts in some areas for debts or damages under s. and imprisonment for such was limited for up to three months. otherwise, sentences were longer, and debts grew during the time in prison. when prisons were overcrowded, parliament let the inmates out if they gave up their possessions. they could go to georgia. there were felons' prisons and debtors' prisons. sometimes they were one and the same. there was much fighting among inmates. the inmates slept on hay if lucky. there were no washing facilities and little light. counties or friends paid for their bread. they were also sold beer, which made them drunk and riotous. the sale of beer was a recognized and legitimate source of profit to the keeper. this was remedied by statute of that no sheriff or other officer may take an arrested person to a tavern or other public house or charge him for any wine, beer, ale, victuals, tobacco or other liquor without his consent and shall allow prisoners to be brought beer, ale, victuals, bedding, and linen as the prisoner sees fit. sheriffs often kept people imprisoned unless and until they paid all their fees due to the sheriff. in was founded the society for the discharge and relief of persons imprisoned for small debts for those inmates unfortunate instead of fraudulent or extravagant. legacies were often made to debtors. there was much gaol distemper fever with fatal consequences. when john howard, a grocer who had inherited wealth, but poor health, became a sheriff, he visited many gaols. when he saw the squalid conditions there, he advocated hygienic practices. in , justices of the peace were authorized to order walls and ceilings of gaols to be scraped and washed, ventilators for supplies of fresh air, a separate room for the sick prisoners, commodious bathing tubs, provision of clothes for prisoners, keeping of prisoners not below the ground, and apothecaries at a stated salary to attend and to report the state of health of prisoners. in , clergymen were employed in gaols to alleviate the distress of prisoners and to contribute to morality and religion. also, no longer may any fees be taken by gaol keepers or sheriffs because persons not indicted or found not guilty have been kept in prison pending payment of such fees. instead, the counties shall pay to gaol keepers up to s. d. per prisoner so discharged. colonials acts which infringed upon the english common or statutory law, or were against the interests of other american colonies were submitted to the privy council, which allowed or disallowed them. appeals from the colonial courts came to the privy council. judges in the colonies were appointed by royal governors and paid by colonial legislatures. they served at the pleasure of the king. colonial courts included superior courts of judicature, courts of assize, general gaol delivery, general sessions of the peace, inferior court of common pleas, and commissions of oyer and terminer. there were also justices of the peace, marshals, provosts, and attorney generals. there were few cases of vagrancy, theft, or homicide. this may have been because the people were few and dependent on each other, and economic opportunities were great. benefit of clergy for certain crimes was available in the american colonies to all who could read and write. for instance, it could be used in trials for manslaughter. appendix: sovereigns of england accession - - name - - - - - - - - - relation - alfred the great - edward the elder - - - - - - - son of alfred - aethelstan - - - - - - - - - - son of edward the elder - edmund - - - - - - - - - - - - son of edward the elder - eadred - - - - - - - - - - - - son of edward the elder - eadwig - - - - - - - - - - - - son of edmund - edgar - - - - - - - - - - - - son of edmund - edward the martyr - - - - - - son of edgar - aethelred the unready - - - - son of edgar - edmund ironside - - - - - - - son of aethelred the unready - canute - harold i harefoot - - - - - - son of canute - hardicanute - - - - - - - - - son of canute - edward the confessor - - - - -son of aethelred the unready - harold ii - william i, the conquerer - william ii - - - - - - - - - -son of william i - henry i (and matilda) - - - - son of william i - stephen - henry ii(and eleanor) - grandson of henry i - richard i, the lion-hearted - son of henry ii - john - - - - - - - - - - - - son of henry ii - henry iii - - - - - - - - - - son of john - edward i (and eleanor) - - - son of henry iii - edward ii - - - - - - - - - - son of edward i - edward iii - - - - - - - - - son of edward ii - richard ii - - - - - - - - - grandson of edward iii - henry iv - henry v - - - - - - - - - - - son of henry iv - henry vi - - - - - - - - - - son of henry v - edward iv - edward v - - - - - - - - - - son of edward iv - richard iii - henry vii (and elizabeth) - henry viii - - - - - - - - - son of henry vii - edward vi - - - - - - - - - - son of henry viii - mary - - - - - - - - - - - - daughter of henry viii - elizabeth i - - - - - - - - - daughter of henry viii - james i - charles i - - - - - - - - - - - son of james i - oliver cromwell - charles ii - - - - - - - - - - -son of charles i - james ii - - - - - - - - - - - -son of charles i - william and mary - william iii - anne - - - - - - - - - - - granddaughter of james ii - george i - george ii - - - - - - - - - - - son of george i - george iii - - - - - - - - - - son of george ii bibliography . - ancient laws and institutes of england, printed by command of his late majesty king william iv under the direction of the commissioners of the public records of the kingdom, vol ; . . - the laws of the kings of england from edmund to henry i, a.j. robertson, . . - the statutes of the realm . - statutes at large . - a treatise of the laws of the forest, john manwood, . - history of english law; william holdsworth . - history of english law, pollack and maitland, . - anglo-saxon charters, a. j. robertson, . - franchises of the city of london, george norton, . -borough customs vol. , selden society, . -royal writs in england from the conquest to glanvill, selden society, . -lawsuits from william i to richard i, selden society, . -treatise on the laws and customs of the realm of england, ranulph d. glanvill, . -calendar of wills, court of husting, london; ed. reginald r.sharpe . -calendar of early mayor's court rolls of the city of london, ad - , ed. a. h. thomas . -legislation of edward i, t.f.t. plunkett, . -english historical documents, ed. david douglas . -bracton on the laws and customs of england, henry of bratton, . -chaucer's world, edith richert, . -john, king of england, john t. appleby, . -a collection of eighteen rare and curious historical tracts and pamphletts, edinburgh, priv. print. . -doctor and student, christopher st. germain, . -readings in western civilization, george kuoles, . -social england, ed.: h.d. traill, st. john's college, oxford; vol. and , . . -augustine of canterbury, margaret deanesly, . -the venerable bede, ecclesiastical history of the english nation . -political history of england; t. hodgkin . -alfred the great, helm, . -domesday, a search for the roots of england, m. wood, . -the english church - ; f. barlow, . -life on the english manor; h.s. bennet; . -the english medieval town; colin platt; . -london weavers' company, francis consitt, . -the gild merchant, charles gross, . -life and times of roger bacon . -oxford book of oxford, jan morris, . -a history of oxford university, vivian green, . -lives of the lord chancellors, campbell, . -gilds and companies of london, george unwin, . -a history of technology, charles singer, - . -edward i, michael prestwich, . -franchises of the city of london, george norton, . -the works of alfred . -salisbury plain, r. whitlock, . -william the conqueror, f.m. stenton, . -life of william the conqueror, t. roscoe, . -elizabeth i, anne somerset, . -queen elizabeth, katherine anthony, . -industry in england, h.deb. gibbons, . -henry ii, w. l. warren, . -edward i, l.f. salzman, . -the yorkist age, paul kendall, . -edward the confessor, frank barlow, . -the livery companies of the city of london, w. carew hazlitt, . -parliamentary representation of the city of coventry, thomas whitley, . -the government of england under henry i, judith green, . -lives of the queens of england, agnes strickland, . -the oldest version of the customs of newcastle, c. johnson, . -charter of henry ii to the burgesses of newcastle, a. m. oliver, . -the charters and letters patent granted by the kings and queens of england to bristol, samuel seyer, . -magna carta, legend and legacy, william swindler, . -chronicles and memorials of great britain and ireland during the middle ages: letters and papers of richard iii and henry vii . -sons of the conqueror, g. slocombe, . -the spirit of the classical canon law, richard helmholz, . -open fields, charles orwin, . -the medieval foundation of england, arthur bryant, . -from alfred to henry iii, - , christopher brooks, . -the anglo-norman nobility in the reign of henry i: the second generation, charlotte newman, . -the birth of britain vol. , winston s. churchill, . -medieval london, gordon hoime, . -a history of london, stephen inwood, . -tudor england, john guy, . -reign of henry vii, r. storey, . -elizabethan life in town and country, m. st. claire byrne, . -the elizabethan world, edited by norman kotner, . -the evolution of modern medicine, william osler, . -shakespeare's england, oxford university press, . -the lion and the throne, catherine bowen, . -johnson's england, ed. a.s. turberville, . -education in renaissance england, kenneth charlton, . -the scholastic curriculum of early seventeenth-century cambridge, william -costello, . . -english people on the eve of colonization - , wallace notestein, . -sir walter ralegh, willard wallace, . -sir walter ralegh, robert lacey, . -constitutional documents of the reign of james i, j.r. tanner, . -history of the english people, volumes iii and iv, green . -hume's history of england, volumes v and vi, david hume . -english society - , keith wrightson, . -the century of revolution - , christopher hill, . -charles i and the puritan upheaval, allen french, . -charles i, christopher hibbert, . -constitutional documents of the puritan revolution - , samuel gardiner, . -life and work of the people of england in the th century, dorothy hartley et al, . -home life under the stuarts, elizabeth godfrey, . -cromwell the lord protector, antonia fraser, . -the greatness of oliver cromwell, maurice ashley, . -acts and ordinances of the interregnum - , c.h.firth & r.s.rait, . -history of the english people, john r. green, . . -a social and industrial history of england, f.w. tickner, . a history of everyday things in england, marjorie and chb quennell, . the english, norman f. cantor, . a concise economic history of britain, john clapham, . world book encyclopedia . encyclopedia britannica . history of the english constitution, rudolph gneist, . the life of the law, alfred knight, . norton anthology of english literature, ed. m.h.abrams, . the bank of england, john clapham, . the honorable company, a history of the east india company,john keay, . a history of british india, w.w. hunter, . the bank of england, john clapham, . early speculative bubbles and increase in the supply of money, m.a. thesis, douglas e. french, . royal charles, antonia fraser, . charles ii, ronald hutton, . the life and times of charles ii, christopher falkus, . life in a noble household - , gladys thomson, . the weaker vessel, antonia fraser, . a constitutional and legal history of medieval england, bryce lyon, . the laws respecting women, j. johnson, . mediaeval england, mary bateson, . elizabeth: the struggle for the throne, david starkey, . a social history of england, asa briggs, . the year , robert lacey, . a history of chemistry, charles-albert reichen, . john locke, economist and social scientist, karen vaughn, . becoming visible, women in european history, ed. bridenthal & koonz, . wonder book of the world's progress; inventions and customs, henry williams, . industrial revolution in the eighteenth century, paul mantoux, . eighteenth century england, dorothy marshall, . georgian england, a.e. richardson, . the pageant of georgian england, elizabeth burton, . the georgian gentleman, michael brander, . england in the eighteenth century, j.h. plumb, . london life in the eighteenth century, m. dorothy george, . law and jurisprudence in american history, stephen presser & -jamil zainaldin, . england in the age of hogarth, derek jarrett, . the first four georges, j.h. plumb, . the review of american colonial legislation by the king in council, elmer russell, . select pleas of the crown, f.w. maitland, . select pleas in manorial and other seignorial courts, f.w.maitland, . the forms of action at common law, f.w. maitland, . equity, f.w. maitland . the story of the declaration of independence, ira g. corn, jr., . internet medieval sourcebook . out of the fiery furnace video, robert raymond . a history of chemistry, charles reichen, . seven ideas that shook the universe, nathan spielberg, . a history of the warfare of science with theology in christendom, andrew white, . american political and social history, harold faulkner, . essays in science, albert einstein, . the character of physical law, richard feynman, . dictionary of national biography, george smith, . elizabeth i: collected works, ed. leah marcus et al, . the crime of galileo, giorgio de santillana, . from copernicus to einstein, hans reichenbach, . the horizon book of the elizabethan world, ed. richard ketchum, . tower of london, christopher hibbert, . tudor royal proclamations, ed. p.l. hughes & j.f. larkin, . selected historical essays of f.w.maitland, ed. helen cam, . lloyd's of london, raymond flower & michael jones, . weather, philip thompson etc., . constitutional history of england, william stubbs, . hillforts of england and wales, james dyer, . the last two million years, reader's digest association, . london: the civic spirit, robert goldston, . domestic life in england, norah lofts, . descartes, tom sorell, . life in the english country house, mark girouard, . extraordinary origins of everyday things, charles panati, . god's peace and king's peace: the laws of edward the confessor, bruce o'brien, . the bill of rights, irving brant, . issac newton, adventurer in thought; a. rupert hall, . the life of issac newton, richard s. westfall, - . a history of the circle, ernest zebrowski, . the world of water, j. gordon cook, . the western intellectual tradition, j. bronowski & mazlish, . human accomplishment, charles murray, . magic, myth and medicine, d.t.atkinson, m.d., . scientists who changed the world, lynn and gray poole, . the new treasury of science, ed. harlow shapley, etc., . food in history, reay tannahill, . home, a short history of an idea, witold rybczynski, . english villagers of the thirteenth century, george c. homans, . english lawsuits from william i to richard i, selden society, . the notebook of sir john port, selden society . spellman's reports, selden society . the mediaeval church, marshall baldwin, . the court of common pleas in fifteenth century england, margaret hastings, . english courts of law, hanbury and yardley, . the jury, w. r. cornish, . women in medieval society, susan stuart, . the king and his courts - john and henry iii, ralph turner, . oxford history of the laws of england. vol , r. h. helmholz, . leges henrici primi, l.j. downer, . black's law dictionary, henry black, . webster's dictionary, noah webster, . an introduction to early english law, bill griffiths, . pelican history of england: ) roman britain, i.a. richmond, ) the beginnings of english society, dorothy whitelock, ) english society in the early middle ages, doris stenton, ) england in the late middle ages, a.r. myers, ) tudor england, s.t. bindoff, ) england in the seventeenth century, maurice ashley, - - - - - - - - - - - - -the end - - - - - - - - - - - - - index abbey; abbot, abbess; abduction; accessory; account; administrator; admiralty; adultery; adverse possession; adulterated; advowson; aethelbert; aethelred; affidavit; agreement; agriculture; augustine. st.; aids; alderman; ale; alehouses; alfred; alienate; aliens; allegiance; alms; amerce; america; anabaptist; ancient; anglo-saxons; anglo-saxon chronicles; annulment; apothecaries; apparel laws; appeal; appellate; apprentices; appurtance; archbishop; architect; aristotle; arkwright, richard; arraign; arson; arthur; articles of religion; artificer; artisan; assault; assay; assign; assize; assizes; assumpsit; astrology; at pleasure; atheism; attainder; attaint; attorneys; babies; bachelor; bachelor of arts; back-berend; bacon, francis; bacon, roger; bacteriology; bail; bailiff; baker; ballads; bank of england; bankruptcy; baptist; bar; barber; barber-surgeon; bargain and sale; barons; baron court; barristers; bastard; bath; battery; beadle; beating; becket; beer; beggar; benefit of clergy; benevolence; beowulf; bequeath, bequest; bible; bigamy; bill; bill of attainder; bill of exchange; bill of rights; billet; birmingham; bishops; black death; blackstone, william; blinding; blodwite; blood-letting; bocland; book of common prayer; bordars; borough; boston; bot; boyle, robert; bracton, henry de; brass; brawling; breach; breach of the peace; bread; brewster; bribery; brick; bridge; bridgebot; bristol; brokers; bullock, case of; burgbot; burgess; burglary; burh; burial; burning; butcher; butler; calais; calvin; cambridge university; canals; cannon; capitalism; carbon dioxide; carpenter; carriages; carucage; carver; castle; castle-guard; cathedral; catholics; cattle; cavaliers; cecil, william; censorship; ceorl; certiorari; challenge; champerty; chancellor; chancery; chancery court; charter; chattel; chaucer, geoffrey; chemistry; chevage; chief justice; chief justiciars; child; child abuse; children; childwyte; christian; chivalry; christmas; church; church of england; church sanctuary; cicero; circuit; citizen; city; civil; civil courts; civil war; claim; clans; class; clergy; clerics; cloth-maker; coaches; coal; coffee houses; coin; coke, edward; college of physicians and surgeons; colonies; commission; common land; common law; commons, house of; commonwealth; compurgation; compurgator; confession; congregationalists; conqueror; consideration; constable; constitution; contract; conventile; conveyance; conviction; cooper; copernicus; copper; copyhold; copyrights; cordwainer; coronation charter; coroner; corporation; corruption of the blood; council; counterfeit; county; county courts; courtesy; court of common pleas; court of high commission; court of king's bench; courtesy; court martial; covenant; coverture; coventry; craft; craft guild; cranmer, thomas; creditor; crime; criminal; cromwell, oliver; cromwell, thomas; crown; cupbearer; curfew; currier; custody; customary tenant; customs; damages; danegeld; danes; darrein presentment; daughter; death; death penalty; debt, debtors; deceased; decree; deed; deer; defamation; defendant; demesne; denizen; deodand; descendant; descartes, renee; desertion; detinue; devise; dispensary; disseisin; dissenter; distraint; distress; divorce; doctorate; dog; doomsday book; doublet; dower; dowery; drake, francis; drover; drunkenness; duel; during good behavior; duties; dwelling; dyers; earl; east india company; easter; ecclesiastic; edith; education; eleanor, wife of edward i; eleanor, wife of henry ii; election; electricity; elizabeth, wife of henry vii; embroiderer; enclosure; english; engrose; episcopal church; equity; equity court; erasmus; escape from gaol; escheat, escheator; escuage; esquire; established church; estate; estate administration; estate tail; euclid; exchequer; excommunication; excise tax; executor; export; extent; eyre; factory; fair; father; fealty; fee; fee simple; fee tail; felony; feme covert; feme sole; feoff; fermat, pierre; feudal; feudal tenures; fihtwite; fine; fire; firdfare; fire-fighters; fishermen, fishmonger; flint; flogging; flymenfyrm; flying shuttle; folkmote; food riots; footmen; forced loans; forced marriage; forestall; forest charter; forestall; forestel; forests; forfeit; forgery; forms of action; fornication; fortifications; foster-lean; france; frank-almoin; franklin, benjamin; frankpledge; fraternity; fraud; freedom of speech; freehold, freeholder; freeman; freemason; freewoman; friar; frith guild; fuller; fustian; fyrd; fyrding; fyrdwite; gage; galilei, galileo; gambling; games; gaols; gaol distemper; gawaine; gentleman; gentry; geology; georgia; german, christopher st., gift; gilbert, william; guildhall; guilds; gin; glanvill; glass; glorious revolution; gloves; god; godfather; gold; goldsmiths; good parliament; goods; government; grain; grammar schools; grand assize; grand jury; grand tour; grants; grave; gravitation; greek; gresham, thomas; grithbrice; guardian, guardianship; guenevere; hair; hall; halley, edmond; hamsocne; hand-habbende; harboring; harrington, james; harvard college; health; heir; heresy; heriot; hidage; hide; high commission court; hilda; hillforts; holidays, holydays; homage; homicide; hooke, robert; horse; horse racing; hospitals; house-breaking; house-holder; house of commons; house of lords; houses; houses of correction; hue and cry; humanism, humors; hundred rolls; husbreche; huygens, christian; hundred; hundred courts; hunt; husband; hustings court; hut; illegitimacy; illness; illuminators; impeach; import; imprisonment; incest; income tax; independents; indenture; indictment; industry; infangthef; infiht; inflation; inheritance; innkeeper; inns of court; inoculation; inquest; insocna; insurance; interest; interrogatory; intestate; iron; itinerant; jail; jesus; jews; joan of arc; joint tenants; joint-stock companies; jointure; jones, inigo; journeyman; judge; jurisdiction; jurors; jury; justice; justices in eyre; justices of assize; justices of the peace; justiciar; kent county; keplar, johannes; kill; kin, kindred; king; king alfred the great; king charles i; king charles ii; king edward i; king edward the confessor; king george iii; king henry i; king henry ii; king henry vii; king henry viii; king james i; king james ii; king john; king richard the lion-hearted; king william and mary; king william i, the conqueror; king's peace; knight; knight's fee; knights' guild; knitting; laborer; ladies; land; landlord; land-owner; larceny; lastage; latin; law merchant; lawsuit; lawyer; laxton; lay; leap year; lease; leather; leet court; legacy; legerwite; legislation; legitimacy; leibniz, christian; leicester; letters; libel; liberi quadripartitus; library; license; life; life-estate; lighthouse; limb; linen; lion of justice; literacy; literature; littleton, thomas; livery; lloyds; locke, john; london; long parliament; longitude; lord; lords, house of; loriner; lottery; loyalty; machine; magistrates; magna carta; magnate; maiden; mail; magic; malicious prosecution; maintenance; manchester; manor; manor courts; manufacturing; manumission; marco polo; market; marriage; marriage agreement; marriage portion; marshall; marquise; massachusetts; master of arts; masters; matilda; mayflower; mayor; maypole; mead; measures; meat; medicine; melee; member; merchandise; merchant; merchant adventurers; merchant guilds; merchet; merciless parliament; mercy; merton; mesne; methodists; microscope; middlesex; midwives; military service; militia; miller; minister; minor; minstrels; miskenning; moat; model parliament; monarchy; monasteries; money; moneyer; monks; monopoly; moot; more, thomas; morgen-gift; morning gift; mort d'ancestor; mortgage; mortmain; mother; murder; murdrum; mutilation; napier, john; navy; newcastle- on-tyne; new england; new model army; newspapers; newton, issac; new world; nobility; noblemen, nobles; nonconformists; normans; novel disseisin; nuisance; nun; oakham, william; oaths; offender; oil; one hundred year war; open field system; ordeal; ordinance; orphans; outlaw; oxford university; oxygen; papists; parent; parishes; parliament; parliament of saints; partition; party; pascal, blaise; passport; patents; pauper; pawn; peasant's revolt; peers; peine forte et dure; penalty; penitentiary; penn, william; pennsylvania; penny; per stirpes; perjury; personal injury; personal property; petty serjeanty; petition; petition of right; physicians; piers plowman; pigherds; pilgrim; pillory; pipe rolls; piracy; pirate; plague; plaintiff; plato; plays; pleading; pleas; police; pontage; poor; pope; popery; population; port; portreeve; portsoken ward; posse; possess; postal system; post mortem; pottery; praecipe in capite; pressing; presbyterians; prescription; presentment; priest; printing; prison; privy council; privy seal; probable cause; probate; proclamation; promise under seal; promissory note; property; prosecutor; prostitutes; protectorate; protestants; puritans; purveyance; putting out system; quakers; quaranteen, quarter sessions; queen; queen elizabeth i; queen mary; queen's bench; quo warranto; rack; ralegh, walter; rape; ray, john; real action; recognition; reeve; reformation; regrate; release; relief; religion; remainder; renaissance; rent; replevin; residence; restoration; reversion; revolt; reward; rights; riot; riot act; roads; robbery; robin hood; roemer, olaus; roman law; root and branch petition; roundheads; royal court; royal navy; royal society; royalists; rump parliament; russia; sacrament; sacrifice; sailor; sake and soke; sale; salt; saltworks; sanctuary; sandwich; saxon; scaetts; scavage; scholar; school; science; scolds; scot; scrofula; scutage; seal; seamen; searchers; search warrant; sedition, seditious; seisin; self- defense; self-help; separatists; serf; serjeanty; servant; service; servitude; settlement; sewer; shakespeare, william; shaving; sheep; shelley's case; sheriff; sheriff's turn; shillings; ships; shipwreck; shire; shire courts; shire-gemot; shoemaker; short parliament; shrine; sickness; silver; slade's case; slander; slave; slingshot; smallpox; smith; smithfield; socage; sokemen; soldiers; solicitor; son; spanish armada; speedy pursuit; spinning; spinning jenny; spinning wheel; spinsters; spouse; st. augustine; st. germain; st. lazarus; st. paul's church; statute of laborers; squire; staple; star chamber court; strangers; steam; steel; stengesdint; stevinus; steward; stock-and-land lease; stocking-frame knitters; stocks; stolen goods; stone; stonehenge; straw; streets; stretbreche; subtenants; successor; sue; suit; summary; summon; sunday; supporters of the bill of rights society; surety; surgery; surname; swearing; swords; tale; tallage; tanner; tavern; tax; tea; team; ten commandments; tenancies; tenancy, tenant; tenants in common; tenement; tenure; term; testament; thames, river; theft; thegn; theodore; theology; theow; thermometer; thirty years' war; tile; tiler; tin; title; tolls; tories; torricelli, evangelista; tort; torture; tournament; tower hill; tower of london; town; town-reeve; trades, tradesmen; transportation; treason, high and petit; treasure trove; treasury; trespass; trespass on the case; trial by combat (battle); trover; turnpike; twelve; tyne; umbrella, unitarians; university; usury; use-trust; vagrants, vagrancy; vassal; verderer; verdict; vessels; vikings; vill; villages; villeinage; villeins; vintner; virginia; wall; wallis, john; war of the roses; ward, wardship; wardmoot; wardrobe; warrantor, warranty; waste; water; watermen; watermill; waterwheel; watt, james; wealthy; weapon; weaving, weavers; webs; wed; wedding; weights; weir; well; wer, wergeld; wesley, john; westminster; whigs; whipping; white tower; whitsuntide; widows; wife; wife-beating; wills; winchester; windmills; window tax; wine; witch; witchcraft; wite; witan; witanagemot; witnesses; wives; wolsey, thomas; wyclif, john; woman-covert; women; wool; wounding; writs; writs of assistance; writs of error; year books; yeomanry, yeomen transcriber's note: obvious typographical errors have been corrected. inconsistent hyphenation and spelling in the original document have been preserved. italic text is denoted by _underscores_ and bold text by =equal signs=. everyman's library edited by ernest rhys poetry and the drama the old yellow book being a supplementary volume to "the ring and the book" translated and edited by charles w. hodell this is no. of _everyman's library_. the publishers will be pleased to send freely to all applicants a list of the published and projected volumes, arranged under the following sections: travel * science * fiction theology & philosophy history * classical for young people essays * oratory poetry & drama biography reference romance in four styles of binding: cloth, flat back, coloured top; leather, round corners, gilt top; library binding in cloth, & quarter pigskin london: j. m. dent & sons, ltd. new york: e. p. dutton & co. poets are the trumpets which sing to battle ... poets are the unacknowledged legislators of the world shelley the old yellow book: source of robert browning's the ring & the book london & toronto j. m. dent & sons ltd. new york e. p. dutton & co first issue of this edition reprinted publishers' note some years before his death browning promised to leave the _old yellow book_, together with other books and manuscripts, to balliol college, oxford, and his son carried out the promise soon after the poet's decease. the carnegie institution of washington, d. c., has reproduced the entire book in photo-facsimile, with translation and editing by charles w. hodell. the publishers gratefully acknowledge the kindness and generosity of the institution in allowing the translation of the _yellow book_ to be reproduced in the present volume. they have also to acknowledge their indebtedness to professor hodell for the courtesy he has shown, and the great help he has given in editing these volumes. hitherto the work has been practically inaccessible to british readers, and in its new dress it is hoped it will be found invaluable in interpreting the greatest work of robert browning. introduction the _old yellow book_ is a soiled and bloody page from the criminal annals of rome two centuries ago, saved apparently by mere chance for the one great artist of modern literature who could best use it, and who has raised this record of a forgotten crime to a permanent place in that ideal world of man's creation where caponsacchi and pompilia have joined the company of paolo and francesca, of the red cross knight, of imogen, of marguerite and faust, and of don quixote. one june day of , robert browning passed from the casa guidi home to enjoy the busy life of florence. there, "pushed by the hand ever above my shoulder," he entered the piazza of san lorenzo: crammed with booths, buzzing and blaze, noontide and market-time. he had brought home from such wanderings many a rare old tapestry, or picture, or carving from the long artistic past of the city. this day his eye caught the soiled, vellum-covered volume, crowded between its insignificant neighbours. "one glance at the lettered back," declares the poet, "and stall! a lira made it mine." all the way home and all day long, he pored over these pages, until by nightfall he had so mastered the facts of the case that the whole tragedy lay plain before his mind's eye. the book led him, and leads us, back to the morning of january , , when all rome was astir with the sensation of a brutal assassination. the aged comparini, cut to pieces in their own home in the very heart of rome on the evening before by a band of assassins, were now exposed to the view of an excited mob of the curious and idle. pompilia, desperately wounded, lay a-dying. a police captain and posse were in pursuit of the criminals, one of whom was a nobleman who had held office in the household of one of the great cardinals. toward night the criminals were brought back to the city, and were followed through the streets to the prison doors by a great throng. just seven weeks later and again rome was throbbing with excitement. unwonted crowds were pressing into the piazza del popolo, where gallows and scaffold had been prepared. at last, up the corso filed the brotherhood of death with their black gowns and great cross, and behind them, in separate carts, the five criminals. in the midst of a sea of upturned faces guido and his fellows met their end, and the curtain fell. the _old yellow book_ is the record of the court procedure of those seven intervening weeks, and shows us the whole legal battle fought to save guido, while rome looked on with the fascinated interest which has always attended the great murder trials. it includes the lawyers' arguments for and against the accused, together with a part of the evidence brought into court, and some additional miscellaneous data on the case. all this had evidently been assembled by the florentine lawyer, cencini, to whom certain letters included are addressed. he seems to have been interested in the case as a precedent on an important and much disputed point of law, "whether and when a husband may kill an adulterous wife." cencini may also have had some professional relation with the franceschini family at arezzo. at any rate, he set the material in order, provided title-page and index, and a transcript of the record in a criminal case against pompilia in the tuscan courts (pp. - ), and bound it securely in the vellum cover which conveyed it to the poet's hands more than a century and a half later. whatever meaning this volume may have as a legal precedent, it had for browning, and has for the lay reader, a deep human interest as the incomplete record of a sordid series of intrigues for certain properties, ending at last in a fearful crime. guido franceschini, scion of a noble but impoverished tuscan family, had sought his fortunes in rome, and had attained a secretaryship in the household of cardinal lauria. his brother, the abate paolo, a shrewd and effective man, rose much higher, at last attaining important office among the knights of st. john. guido, less astute and less ingratiating, reached middle life with but scant success, and at last was left unprovided. with the assistance of abate paolo, he planned to recoup his fortunes by a bourgeois marriage. though past forty years of age and of unattractive appearance, he won, by his noble name and subtle intrigue and falsification, the thirteen-year-old daughter of the comparini, of the well-to-do middle class of rome. after the marriage in december , pompilia and her parents accompanied guido back to arezzo, where, in the ruinous franceschini _palazzo_, the comparini had ample opportunity to repent their folly. bitter contentions soon arose, and at last the comparini fled from the brutalities of their son-in-law, and returned to rome. there they published broadcast the sordid poverty and the ignoble brutality of their persecutors, probably printing and circulating the affidavit of the servant (pp. - ). guido seems to have retorted by circulating the forged letter from pompilia (pp. , ). but they struck a more deadly blow at the pride of the franceschini when they revealed that pompilia was not their own child, but was of ignominious parentage. and in the spring of they brought suit before judge tomati for the recovery of the dowry monies paid to franceschini--a bitter humiliation to the greedy poverty of the franceschini. it must have been a scandalous suit, bringing dishonour to both parties as their domestic difficulties were exposed to the throngs of the curious. in this trial were adduced the letters of the governor (pp. , ) and of the bishop of arezzo (p. ). the comparini lost their suit, but appealed to the rota, and their case was pending for several years, during which time they may have baited the franceschini with spiteful scandals. in the meantime, the child-wife, pompilia, was left in desperate plight--despised and hated by her husband's family. her situation grew intolerable. guido had evidently determined to rid himself of her without relaxing his grip on her property. his brutalities were systematic and cunning. at last she was driven to flee for her life, and on april , , made her escape under the protection of caponsacchi, a gallant young priest. it was a desperate step, gravely reprehensible in the eyes of the world. the fugitives pressed toward rome, but guido overtook them at castelnuovo, fifteen miles short of their destination, and had them arrested. at rome, criminal charges of flight and adultery were brought against them. this process of flight, as it is repeatedly called in the _yellow book_, continued all through the summer. it was for their defence in this case that pompilia and caponsacchi made their affidavits (pp. and ), giving their motives for the flight. at the same time guido urged the evidence of the love-letters (pp. - ), which he claimed to have found at the time of the arrest of the fugitives. in september, judgment was rendered against caponsacchi--relegation for three years to civita vecchia--a punishment commensurate with indiscretion rather than with crime. pompilia was unsentenced, but was retained for a month in safekeeping in the nunnery delle scalette, and was then permitted to return to the home of her foster-parents, the comparini, though still technically a prisoner in this home (p. ). here on december a boy was born. on christmas eve, guido reached rome with four young rustics, whom he had hired to assist him in the assassination. for a week he lurked in the villa of his brother, abate paolo, who had left rome. then, on the evening of january , he won entrance to the home of the comparini by using the name of caponsacchi. the parents were instantly stabbed to death, and pompilia was cut to pieces with twenty-two wounds. leaving her for dead, guido and his cut-throats fled, as the outcries of the victims had given the alarm. that night they travelled afoot nearly twenty miles, but were pursued by the police, and were arrested with the bloody arms still in their possession. such was the crime, and the _old yellow book_ is the record of the legal battle over the assassins, which was fought through the criminal courts of rome, presided over by vice-governor venturini. the prosecution and defence alike were conducted by officers of the court, two lawyers on each side, the procurator and advocate of the poor for the defendants, and the procurator and advocate of the fisc against them. as the fact of the crime was definitely ascertained, the legal battle turned entirely on the justification or condemnation of the motive of the crime. the defence maintained that the assassination had been for honour's sake, and the unwritten law, to which appeal is made in generation after generation, was urged at every point. that guido had suffered unspeakable ignominy cannot be denied; that his wife had been untrue to him even in the perilous flight with caponsacchi is unproved, as the courts had evidently held in the process of flight. the prosecution, on the other hand, reiterated in every argument their reading of guido's motive--greed. greed had led him to marry pompilia. greed had occasioned his disgraceful wranglings with the comparini. defeated greed had made him torture his wife into scandalous flight, and calculating greed had led him to commit the murder at a time and in a manner to save the whole property to himself. still further, said the prosecution, not only was his motive bad, but the crime was committed in a way which involved him in half a dozen accessory crimes, each of them capital. such is the drift of the argument, which is fortified at every point by citation of precedent from the legal procedure of all ages. altogether it is a highly skilled legal battle according to the technical limitations of the game, while the simple appeals to equity and to common human feeling hardly enter at all. the trial proceeded in two stages. the earlier one, during the latter half of january, was opened by arcangeli (pamphlet ), supported by advocate spreti (pamphlet ). the prosecution is opened by procurator gambi (pamphlet ), supported by advocate bottini (pamphlet ). arcangeli and bottini make further argument in pamphlets and . two pamphlets of evidence were assembled and printed--for the defence, pamphlet ; and for the prosecution, pamphlet . the latter part of this stage of the case is much occupied with arguing whether guido and his companions may be tortured to get a fuller statement from them. in spite of the efforts of guido's attorneys, the torture was evidently decreed, and fuller evidence was forced from the defendants, though one of them bore the torture till he fainted twice. the trial then enters on its second stage, in which, after some preliminary skirmishing about the legality of the torture and the status of the evidence given under this torture, the lawyers settle to their most masterly work. arcangeli and spreti develop an elaborate and skilled defence (pamphlets and ), and are answered by bottini's masterpiece for the prosecution (pamphlet ). spreti closes the defence in pamphlet . pamphlet presents some additional matters of evidence. all these arguments and summaries of evidence were printed by the official papal press (see the imprint _typis rev. cam. apost._), probably overnight, between the sessions of the court, as typewritten briefs would be prepared to-day. few copies were printed, and these were solely for the judges and attorneys in the case. there would be no popular circulation of them in rome at large. the particular copies included in the _old yellow book_ were probably gathered by one of these attorneys, and sent to signor cencini in florence (letter iii. p. ). we need but look to our own age to rest assured that outside of the court room all rome was athrill with interest in this murder case, and was speculating on the fate of the accused. the attorneys for the defence, in the midst of the trial, made a sudden appeal to this public interest and sought the support of public sentiment by means of an anonymous pamphlet (pamphlet ) written in italian and printed without an imprint or signature, but evidently addressed to the bar of public opinion. it seems to have been written by guido's lawyers, or their lackeys, for it repeats the various points already made in the arguments. whether it was distributed free or was sold for a small price, it must have been seized and devoured by all rome as are the journalistic reports of notorious criminal trials to-day. we can imagine the alarm of the prosecution when they perceived this flank movement against them. with all possible haste they prepared their reply, also in italian and without signature or imprint, and probably within a day or two had issued this response (pamphlet ), which meets the other pamphlet at every point, and bitterly arraigns the greed of guido. these two pamphlets evidently suggested to browning his "half-rome" and "other half-rome." there must have been other popular exploitations of this crime. two manuscript italian narratives of it have been discovered. the first of these (pp. - ) was found in london and sent to browning, who used it extensively in writing his poem. the second (pp. - ) was discovered a few years ago in rome. other accounts may yet come to light. the trial of guido and his companions was carried forward to a prompt judgment, and on february they were pronounced guilty and were condemned to death. a technical staying of sentence for four days was granted by reason of guido's _clerical privilege_, but execution followed on february . the _old yellow book_ includes three original letters (pp. - ) written from rome immediately after the execution to signor cencini at florence. yet the case was not quite at an end. a number of civil suits were promptly instituted by various claimants for the property of the comparini. the franceschini still pushed their claim in spite of the infamy they had suffered for that property. pompilia's executor, tighetti, claimed all in trust for the child, gaetano. then the refuge of the convertites, under their legal right to the property of all women of evil life who died in rome, accused the memory of pompilia and claimed her property. the case seemed to be entering on one of those interminable struggles in court. the procurator lamparelli (pamphlet ) goes back to analyse again the motives in the whole case and to justify pompilia's innocence. the remainder of this trial is lost to us save for the final _definitive sentence_ of the courts (pamphlet ), issued in september , which clears the memory of pompilia entirely and for ever in the eyes of the law. this was the record which fell into browning's hands. the poet tells of his immediate interest in the tragedy, partly due to that common human interest in great crimes, partly to the casuistic presentation of motive throughout the _book_, partly to his championing the rights of pompilia, dishonoured and slain not merely by a brutally selfish husband, but by a corrupt social condition around her. after some delay, browning saw his way to embody in art the story which had interested him so deeply. the plan came to him, according to w. m. rossetti, one day while he was walking at biarritz, and from till the publication in - , he was working continuously on _the ring and the book_. he had mastered every detail of the _yellow book_ by continuous re-readings, and in his art he was scrupulously, but never laboriously, accurate to the facts before him. in the poem he names thirty-three persons exactly as he found them in his original. place names are adopted with the same accuracy. the specific dates recorded in the _book_ are followed at all points, save in the significant change of the date of caponsacchi's rescue of pompilia from april to , st. george's day. the incidents of the tragedy, even when compromising to pompilia, whose cause he championed, are used without repression or falsification. and perhaps most remarkable of all, the poet had mastered all the technical paraphernalia and phraseology of the lawyers, and uses these with minute care, not entirely devoid of misunderstanding and error. in the _book_ he found all the points of law, all the precedents and authorities, and almost all of the latin phrases and sentences found in the monologues of the lawyers of the poem. a remarkable instance of this is seen in his word for word adaptation of the long peroration of arcangeli (pamphlet ) in the close of the monologue of the arcangeli of the poem. and the actual letter of arcangeli (p. ) is reproduced verbatim in the poem, book xii. ll. - . altogether the poet affords one of the most remarkable illustrations of literal and detailed accuracy in the use of the raw material of art. yet here, as in all cases of true art, the greatness of the final product lies not so much in the material that fell to the artist as in the personal resource and power within himself which was able to use the material. browning found suggestion for a suffering saint in fra celestino's report of pompilia's death-bed (pp. , ), but the pompilia of the poem embodies the poet's deepest insight into womanhood with all its spiritual relationships, in the love of man, the passion of maternity, and devotion to god. browning ascertained in the _book_ that caponsacchi was a resolute man, who had involved himself in many perils for the sake of pompilia, but from his own personal resource of manly devotion, of chivalrous daring, of passionate indignation at wrong, of spiritual tenderness and reverence, he created a caponsacchi. in the _book_ he found every turn of the cunning, of the greed, of the brutality of guido and his family, but from his own deep realisation of the power of evil in the world, and of the black depravity of the lowest forms of humanity, he created his franceschini. thus at every point, founding himself on the fact of the _book_, he is able to set forth this tragedy to the world as it grew in his own imagination while searching his own heart and the hearts of others through many years. and the chance-found _old yellow book_ at last occasioned the most profound utterance robert browning was to give to the world in all that concerns the human heart and its motives as they play the drama of the world before the eye of the almighty. charles w. hodell. "do you see this square old yellow book ... pure, crude fact. give it me back! the thing's restorative i' the touch and sight." a setting-forth of the entire criminal cause against guido franceschini, nobleman of arezzo, and his bravoes, who were put to death in rome, february , . the first by beheading, the other four by the gallows. roman murder-case. in which it is disputed whether and when a husband may kill his adulterous wife without incurring the ordinary penalty. contents page sentence of the criminal court of florence in the criminal case against gregorio guillichini, francesca pompilia comparini, wife of guido franceschini, etc. december argument in defence of the said franceschini of the honourable signor giacinto arcangeli, procurator of the poor in rome, made before the congregation of monsignor the governor argument of the honourable signor advocate desiderio spreti, advocate of the poor, in defence of said franceschini and his associates argument of the abovesaid signor arcangeli in defence of biagio agostinelli and his companions in crime summary of fact made in behalf of the fisc argument of signor francesco gambi, procurator of the fisc and of the reverend apostolic chamber, against the abovesaid franceschini and his companions in crime argument of signor giovanni battista bottini, advocate of the fisc and of the reverend apostolic chamber, against the abovesaid summary of fact in behalf of franceschini and his associates in crime another argument of the abovesaid signor arcangeli in favour and defence of the abovesaid another argument of signor advocate spreti in favour of the above an account of the facts and grounds, made and given by an anonymous author another summary made on behalf of the fisc argument of signor gambi, procurator of the fisc, against the abovesaid franceschini and his companions another argument of the signor giovanni battista bottini, advocate of the fisc another argument of the abovesaid against the said defendants a response of the abovesaid account of fact as given by the anonymous author argument of signor advocate spreti in favour of franceschini, etc. letter written by the honourable signor giacinto arcangeli, procurator of the poor, to monsignore francesco cencini in florence, in which he tells him that the sentence of death had been executed in rome against the guilty on february , --that is, that franceschini had been beheaded, and the other four hanged two other letters, one written by signor gaspero del torto and the other by signor carlo antonio ugolinucci to the aforesaid monsignore francesco cencini argument of signor antonio lamparelli, procurator of the poor in the said case the sentence of signor marco antonio venturini, judge in criminal causes, which declares that the said adultery was not proved, and which restores to her original fame the memory of francesca pompilia comparini, wife of guido franceschini the secondary source of "the ring and the book" trial and death of franceschini and his companions notes and comment [illustration: _but for me the muse in her strength prepares her mightiest arrow._] [illustration: _facsimile page from the original "old yellow book."_] sentence of the criminal court of florence _february , a.d._ attestation by me undersigned how, in the order of the affairs of the governors, which are set before his serene highness, in the chancery of the illustrious signori auditori of the criminal court of florence, there appears among other affairs of business, under decision , the following of tenor as written below, that is arezzo against . gregorio, son of francesco guillichini, not described. . francesca pompilia comparini, wife of guido franceschini, and . francesco, son of giovanni borsi called venerino, servant of agosto, host at the "canale," because the second accused, against her honour and conjugal faith, had given herself up to dishonest amours with the canon giuseppe caponsacchi and with the first accused, who instructed her, as you may well believe, to part from the aforesaid city of arezzo, the evening of april , . and, that they might not be discovered and hindered, the second accused put a sleeping-potion and opium in her husband's wine at dinner. at about one o'clock the same night, the said canon caponsacchi and the first accused conducted the aforesaid second accused away from the home of her husband. as the gates of the city were closed, they climbed the wall on the hill of the torrione; and having reached the "horse" inn, outside of the gate san clemente, they were there awaited by the third accused with a two-horse carriage. when canon caponsacchi and the second accused had entered into the said carriage, the word was given by him, the aforesaid first accused, and they set out then upon the way toward perugia, the said third accused driving the carriage as far as camoscia. and while they were travelling along the road they kissed one another before the very face of the third accused. still further, the second accused, along with the first accused and canon caponsacchi, carried away furtively from the house of the said guido, her husband, from a chest locked with a key, which she took from her husband's trousers [the following articles]: about scudi in gold and silver coin; an oriental pearl necklace worth about scudi; a pair of diamond pendants worth scudi; a solitaire diamond ring worth scudi; two pearls with their pins, to be used as pendants, scudi; a gold ring with turquoise setting worth scudi; a gold ring set with ruby worth scudi; an amber necklace worth scudi; a necklace of garnets alternated with little beads of fine brass worth scudi; a pair of earrings in the shape of a little ship of gold with a pearl worth scudi; two necklaces of various common stones worth scudi; a coronet of carnelians with five settings and with a cameo in silver filigree worth scudi; a damask suit with its mantle, and a petticoat of a poppy colour, embroidered with various flowers, worth scudi; a light-blue petticoat, flowered with white, worth scudi; two vests to place under the mantle worth scudi; a pair of sleeves of point lace worth scudi; another pair of sleeves fringed with lace worth scudi; a collar worth scudi; a scarf of black taffeta for the shoulder with a bow of ribbon worth scudi; an embroidered silk cuff worth scudi; two aprons of key-bit pattern with their lace worth scudi; a pair of scarlet silk boots worth scudi; a pair of woollen stockings, a pair of white linen hose, and a pair of light-blue hose, worth scudi; a snuff-coloured worsted bodice with petticoat, ornamented with white and red pawns, worth scudi; a blue and white coat of yarn and linen, adorned with scarlet and other coloured ornaments, worth scudi; a worsted petticoat of light-blue and orange colour, striped lengthwise, with yellow lines and with various colours at the feet, worth scudi; an embroidered petticoat worth scudi; a silk cuff worth scudi; four linen smocks for women worth scudi; a pair of shoes with silver buckles worth scudi; many tassels and tapes of various sorts worth scudi; six fine napkins worth scudi; a collar of crumpled silk worth scudi; two pairs of gloves of a value of scudi; four handkerchiefs worth scudi; a little silver snuff-box with the arms of the franceschini house upon it worth scudi; a coat of her husband guido, rubbed and rent by the lock of a chest where he kept part of the aforesaid clothing. and they had converted the whole to their own uses against the will of the same, the first accused and canon caponsacchi having scaled the walls of the city in company with the second accused, as soon as she had committed adultery with them. and the said third accused had given opportunity for flight to the said second accused along with the canon, in the manner told. therefore the commissioner of arezzo was of opinion to condemn arbitrarily the first accused to five years' confinement at portoferrio with the penalty of the galleys for the same length of time, not counting the reservation of days to appear and clear himself; to condemn the second accused to the penalty of the stinche for life and to the restitution of what was taken away, with the abovesaid reservation; and that the third accused be not prosecuted further and be liberated from prison. but the criminal court was of opinion that the first accused should be condemned to the galleys during the pleasure of his serene highness, with the said reservation. as to the second accused, who was imprisoned here in rome, in a sacred place, it suspended the execution. and for the third, who had done no voluntary evil, it gave up further inquiry. again proposed in the said business before his serene and blessed highness with the signature of december , . the opinion of the court stands approved. in sign of which, i, joseph vesinius, j. v. d., an official in the criminal court of florence, etc., in faith whereto, etc. [file-title of pamphlet .] _by the most illustrious and most reverend lord governor in criminal cases_: _roman murder-case_ _on behalf of count guido franceschini, prisoner, against the fisc._ _memorial of fact and law._ _at rome, in the type of the reverend apostolic chamber, ._ romana homicidiorum [pamphlet .] most illustrious and most reverend lord governor: count guido franceschini, born of a noble race, had married, under ill omen, francesca pompilia, whom pietro and violante had asserted (even to one occupying a very high office) to be their own daughter. after a little while, she was taken to arezzo, the country of her husband, along with her foster-parents, and was restrained from leading her life with utter freedom. yet she has made pretence that she was hated on the pretext of sterility, as is clearly shown in her deposition during her prosecution for flight from her husband's home. both she and her parents took it ill that they were denied their old free life, and they urged their daughter to make complaint before the most reverend bishop, saying that she had been offered poison by her brother-in-law. at the departure of this couple, when they were about to return to the city, they most basely instigated her--yes, and even commanded her by her duty to obey them--that she should kill her husband, poison her brother-in-law and mother-in-law, and burn the house; and then with the aid of a lover to be chosen thereafter, she should put into effect her long-planned flight back to the city. (but all this should be done after their departure, lest they might seem to have given her evil counsel.) [such facts] may be clearly deduced from one of the letters presented as evidence in the same prosecution. when these pseudo-parents had returned home, they declared that francesca was not born of themselves, but had been conceived of an unknown father by a vile strumpet. they then entered suit before judge tomati for the nullification of the dowry contract. day by day the love of pompilia for her husband kept decreasing, while her affection for a certain priest was on the increase. this affair went so far that on an appointed night, while her husband was oppressed with sleep (and i wish i could say that she had no hand in this, and had not procured drugs from outside), she began her flight from her husband's house toward rome, nor was this flight without theft of money and the company of her lover. her most wretched husband pursued them, and she was imprisoned not far from the city. then, when after a short time they were brought to trial, the lover was banished to civita vecchia for adultery, and she herself was placed in safe keeping. but owing to her pregnancy she returned to the home of pietro and violante, where she gave birth to a child (and i wish i could say that it had not been conceived in adultery). this increased the shame and indignation of the husband, and the wrath, which had long been stirred, grew strong, because his honour among upright men was lost and he was pointed out with the finger of scorn, especially in his own country, where a good reputation is much cherished by men who are well-born. therefore his anger so impelled the luckless man to fury, and his indignation so drove him to desperation, that he preferred to die rather than to live ignominiously among honourable men. with gloomy mind, he rushed headlong to the city, accompanied by four companions. on the second night of the current month of january, under the show of giving a letter from the banished lover, he pretended to approach the home of the comparini. when at the name of caponsacchi the door was opened, he cut the throats of violante and pietro, and stabbed francesca with so many wounds that she died after a few days. while this desperation continued, his dull and unforeseeing mind suggested no way to find a place of safety. but accompanied by the same men, he set out for his own country along the public highway by the shortest route. then, while he was resting upon a pallet in a certain tavern, he was arrested, together with his companions, by the pursuing officers. great indeed is this crime, but very greatly to be pitied also, and most worthy of excuse. even the most severe laws give indulgence and are very mild towards husbands who wipe out the stain of their infamy with the blood of their adulterous wives. [citation of _lex julia de adulteriis, lex cornelia de sicariis_ and the gracchian law. cf. _ring and book_, i. .] this indeed was sanctioned in the laws of the athenians and of solon (that is, of the wisest of legislators), and what is more, even in the rude age of romulus, law , where we read: "a man and his relatives may kill as they wish a wife convicted of adultery." [citations; and likewise in the laws of the twelve tables, see aulus gellius, etc.] i hold, to begin with, that there can be no doubt of the adultery of the wife [for several reasons]. [first], her flight together with her lover during a long-continued journey. [citations.] [second], the love letters sent by each party; these cannot be read in the prosecution for flight without nausea. [citations.] [third], the clandestine entry of the lover into her home at a suspicious time. [citations.] [fourth], the kisses given during the flight (p. ) according to the following sentiment: "sight, conversation, touch, afterwards kisses, and then the deed [adultery]." [citations.] [fifth], their sleeping in the same room at the inn. [citations.] [sixth], the sentence of the judge, who condemned the lover for his criminal knowledge of her, which made this adultery notorious. [citations.] furthermore, we are not here arguing to prove adultery for the purpose of demanding punishment [upon the adulteress], but to excuse her slayer, and for his defence; in this case, even lighter proofs would be abundant, as matthæus advises. [citations.] these matters being held as proved, the opinion of certain authorities who assert that a husband is not excusable from the ordinary penalty, who kills his adulterous wife after an interval, does not stand in our way. for the aforesaid laws speak of the wife who had been found in her guilt and has been killed incontinently. hence such indulgence ought not to be extended to wife-murder committed after an interval, because the reins should not be relaxed for men to sin and to declare the law for themselves. [citations.] furthermore, farinacci does not affirm this conclusion, but shows that he is very much in doubt, where he says: "the matter is very doubtful with me, because injured honour and just anger--both of which always oppress the heart--are very strong grounds for the mitigation of the penalty." matthæus well weighs these words on our very point. and both farinacci and rainaldi conclude that the penalty can be moderated at the judgment of the prince. i humbly pray that this be noted. the aforesaid laws, which seem to require discovery in the very act of sin, as some have thought, do not decide in that way merely for the purpose of excusing a husband moved to slaughter by a sudden impulse of wrath and by unadvised heat. but they so decide lest on any suspicion of adultery whatsoever, oftentimes entirely without foundation, men should rush upon and kill their wives, who are frequently innocent. hence the "discovery in the very act of crime," which is required by law, is not to be interpreted, nor to be understood, as discovery in the very act of licence, but is to be referred to the proof of the adultery, lest on trifling suspicion a wife should be given over to death. but when the adultery is not at all doubtful, there is no distinction between one killing immediately and killing after an interval, so far as the matter of escaping extreme punishment is concerned. [citations.] for whenever a wife is convicted of adultery, or is a manifest adulteress, she is always said to be "taken in crime." [citations.] and in very truth the reasons adduced by those holding the contrary opinion are entirely too weak. for murder committed for honour's sake is always said to be done immediately, whensoever it may be committed. because injury to the honour always remains fixed before one's eyes, and by goading one with busy and incessant stings it urges and impels him to its reparation. [citations.] such relaxation of the reins to husbands, for taking into their own hands the law, would indeed be too great if the law of divorce were still valid. for in that case husbands would not be permitted to make such reparation of their honour. for another way would be satisfactorily provided for them, namely, in their right to dismiss and repudiate the polluted wife. in this way they could put far from themselves the cause of their disgrace, yes, and the very ignominy itself. but when by the divine favour our gentile blindness was removed, and matrimony was acknowledged to be perpetual and indissoluble, those were indeed most worthy of pity who, when all other way of recovering their honour was closed to them, washed away their stains in the blood of their adulterous wives. petrus erodus [citation], after he has discussed a matter of this kind according to the usual practice of roman law, adds in the end: "for as all hope of a second marriage is gone so long as the adulteress still lives, we judge that such very just anger is allayed with more difficulty, unless it be by the flight of time;" and therefore such a case, when not terminated by divorce, is usually terminated by murder. for as augustine says, "what is not permitted, becomes as if it were permitted; that is, let the adulteress be killed, that the husband may be released." i acknowledge that it is laudable to restrain the audacity of husbands, lest they declare the law for themselves in their own cause; since they may be mistaken. but it would be more laudable indeed to restrain the lust of wives; for if they would act modestly and would live honourably they would not force their husbands to this kind of crime, which i may almost call necessary. nor can we deny that by the ignominy brought upon them by the adultery they are exasperated and are driven insane, and a most just sense of anger is excited in their hearts. for this grievance surpasses all others beyond comparison, and hence is worthy of the greater pity, according to the words of the satirist [_juv._ x. ]: "this wrath exacts more than any law concedes to wrath." papinianus also well acknowledges this [citation], where we read: "since it is very difficult to restrain just anger." for these reasons, authorities hold that a just grievance should render the penalty more lenient even in premediated crimes; because the sense of "just grievance does not easily quiet down, or lose its strength with the flight of time, but the heart is continually pierced by infamy, and the longer the insult endures, the longer endures the infamy, yea, and it is increased." [citations.] and this drives one on the more intensely, because with greater impunity, as i may say, wives pollute their own matrimony and destroy the honour of their entire household. in ancient times, while the _lex julia_ was in force, wives who polluted their marriage-bed underwent the death penalty. [citations.] likewise it was so ordained in the holy scriptures; for adulterous wives were stoned to death, gen. ; lev. , ; deut. , ; ez. . the solace drawn from the public vengeance quieted the anger and destroyed the infamy. then the husband, who was restored to his original freedom, could take a new and honest wife and raise his sons in honour. but now, in our evil days, there is a deplorable frequency of crime everywhere, as the rigour of the sacred law has become obsolete. and since wives who live basely are dealt with very mildly, the husband's condition would indeed be most unfortunate if either he must live perpetually in infamy, or must expiate her destruction, when she is slain, by the death penalty, as matthæus well considers. [citation.] therefore, when it is claimed that the husband shall escape entirely unpunished, it is necessary that the wife be killed in the very act of discovered sin. but when the question is as to whether or not a husband may be punished more mildly than usual when driven to wife-murder for honour's sake, it makes no difference whether he kill her immediately or after an interval. [citation.] nor does this opinion lack foundation in the very civil law of the romans, for martian [citation] asserts that a father who had killed his son while out hunting, because he had polluted his stepmother with adultery, was exiled. nor had the father found him in the very act of crime, but slew him while out hunting, that is with a pretence of friendliness and by dissimulating his injury. accordingly he was punished, but not with the usual penalty; for he had killed his son, not in his right as a father, but in the manner of a robber. hence we can infer that not the killing, but the method of killing was punishable, as we may deduce from bartolo. [citations.] still further, it is well worthy of consideration that one may kill an adversary with impunity, for the sake of his personal safety, but he must do so immediately and in the very act of aggression, and not after an interval. for the life of one slain may not be recovered by the slaying of the murderer. accordingly, whatever violence may follow upon the first murder becomes vengeance, which is hateful and odious to the law; for the jurisdiction of the judge is insulted by depriving him of the power of publicly avenging murder. but if by the death of the slayer the one slain could be called back to life, i think there is no doubt that any one could kill the said slayer; for then such an act would not be revenge, but due defence, leading toward the recovery of the life that had been lost. but even when we are dealing with an offence and injury which does not affect the person of the one injured, it is likewise permitted that one who has been robbed may, even after an interval, kill the thief for the recovery of the stolen goods, provided every other way to recover them is precluded. likewise, one offended in his reputation should be permitted at all times to kill the one injuring him; for such an act may be termed, not the avenging of an injury, but the re-establishing of wounded honour, which could be healed in no other way. [citations.] furthermore, as i have said, when one is discussing the subject of self-defence, he is dealing with an instantaneous act; hence the anger conceived therefrom ought to quiet down after a while, according to the warning of st. paul, eph. : "let not the sun go down upon your wrath." but when we are dealing with an offence that injures the honour, this is not merely a momentary matter, but is protracted, and indeed with the lapse of time becomes the greater, as the injured one is vilified the more. therefore, whensoever the murder follows it is always said to have been committed immediately. [citation.] relying upon these and other reasons, most authorities affirm that a husband killing his adulterous wife after an interval, but not found in licentiousness, is to be punished indeed, but more mildly and with a penalty out of the ordinary. [citations.] caball testifies that this has been the practice in many of the world's tribunals. calvinus gives other cases so decided. [citation.] and cyriacus, who speaks in worse circumstances, adduces numerous other cases, and the authorities recently cited offer many more. this lenient opinion is the more readily to be accepted because, as i claim, the deed about which we are arguing does not also carry with it (as the fisc holds) attendant circumstances demanding such a rigorous penalty. [first] the taking of helpers to be present at the murders [is not such a circumstance]; because he could lawfully use the help of companions to provide more safely for his own honour by the death of his wife. [citations.] [secondly] the crime is not raised to a higher class because he led with him helpers at a price agreed upon; for what is more, and is far more to be wondered at, a husband can lawfully demand of others the murder of an adulterous wife, even by means of money, as the following indisputably affirm. [citations.] likewise it does not at all disturb [our line of argument] that count guido might have killed his wife and the adulterer when they were caught in the very act of flight at the tavern of castelnuovo, but that he preferred rather to have them imprisoned, seeking their punishment by law, and not with his own hand. we deny that he could have safely killed both of them, inasmuch as he was alone, nor could he attack them, except at the risk of his own life. because the lover was of powerful strength, not at all timid, and all too prompt for resisting, since, in the word of one of the witnesses in the prosecution for flight, he was called _scapezzacollo_ [cut-throat]. nor is it credible that, unless he had been fearless and full of spirit, he would have ventured upon so great a crime, and would have dared to participate in her flight, and to accompany the fugitive wife from the home of her husband. and this fact is more clearly deducible from one of his letters, in which, after urging francesca to mingle an opiate in the wine-flasks for the purpose of putting her husband and the servants to sleep, he adds that if they find it out she should open the door; for he would either suffer death with her or would snatch her from their hands. these things indicate both courage and audacity. and though the wife is a woman, that is a timid and unwarlike creature, nevertheless francesca was all too impudent and audacious, whether because of her hatred for her husband or on account of her anger at the imprisonment of her lover. for she drew a sword upon her husband in the very presence of the officers who were about to arrest her. and to prevent her from going further, one of the bystanders had to snatch it from her hands. therefore, before their imprisonment, guido could not put into effect what he had had in mind and what he could lawfully do, because he was alone and his strength was not sufficient. then when she had been taken to prison, and afterwards was placed in safe keeping, it was impossible for him to vindicate his honour. but when at last she had left the monastery and had gone back to the home of pietro and violante, he took vengeance as soon as he could. therefore we hold that he killed her in the very act, as it were, and immediately. in sanfelicius [citation], we read of a case where a husband, though he could have killed his wife immediately, did not do so, but craftily redeemed himself from his disgrace by slaying his wife as soon as possible. and giurba also speaks of a case where the argument is concerning an injury that was not personal, but real, as was said above. guido saw to her capture, and insisted that she be punished, lest she continue her adultery and viciousness, being powerless to do anything else, because his confusion of mind, his helpless fury, and his sense of shame led him unwisely into not taking the law into his own hands and recovering his lost honour. he indeed lodged complaint, but it was because he could not kill her. nor would his ignominy have been wiped out nor his infamy have been destroyed by her imprisonment and punishment. but when, indeed, after her imprisonment he was still more shut out from noble company, his injury ever became the more acute, and it stimulated him the more strongly to regain his own reputation. but his bitterness of mind was increased especially at hearing that she had gone back to the home of pietro and violante, who had declared that she was not their daughter, but the child of a dishonest woman; hence his injury was increased by her staying in a home which he suspected, as is said a little further on. accordingly the same cause kept urging him after her departure from the monastery, as had done so before her imprisonment and the appeals made by count guido. it makes very little difference that francesca was staying in the home of violante, which had been assigned to her as a safe prison with the consent of guido's brother. for what would it amount to even if with the consent of guido himself she had been taken from the monastery (yet we have no word of this matter in the trial). for guido could make that pretence to gain the opportunity of killing her for the restoration of his honour. nor would such dissimulation increase the crime, especially to the degree of the ordinary penalty, since it is certain that the husband may kill a wife stained with adultery without incurring such penalty. yet a heavier or lighter penalty is inflicted, just as more or less treachery accompanies the murder, as matthæus testifies it was practised in the senate of matrinumsis. [citation.] nor is the attendant circumstance of the place assigned as a prison worthy of consideration, as if the custody of the prince had been insulted; for one is not said to be in custody when he is merely detained in a place under security that he will not leave it. [citation.] furthermore, this objection falls utterly to the ground, because the circumstance of such a place does not increase the crime, whenever it is committed by one having provocation or for the repelling of an injury. and [the following authorities] hold thus in the more serious case of a crime committed in prison. [citations.] furthermore we do not believe, from what is said above, that the penalty can be increased because of the murder of pietro and violante, since the same injured honour, which impelled count guido to kill his wife, forced him to kill the said parents. and now may the ashes of the dead spare me if what i have urged above, and what i am about to say, may seem to disturb their peace! neither the flame of hatred nor the impulse of anger (which are far from me) have suggested these charges; but the demands of the defence, which i have assumed without a penny of compensation, compel me to employ every means leading to the desired end. i have said, and i think not without due reason, that the accused sprang forward to the death of both of them, moved simply by an immediate injury to his own reputation. for a few months after the marriage contracted with francesca, whom they had professed to be their daughter, they had not blushed to declare that she was not such. hence there is an inevitable dilemma. either [_first_] she was in deed and truth their daughter, and then we must acknowledge that in afterward denying her parentage they had inflicted the greatest injury upon the honour and reputation of the accused; for they had conceived strong hatred and malice against him. hence they did not hesitate to disgrace their own daughter, in order that they might bring upon him the infamy of having married the daughter of a vile and dishonest woman. this is indeed a fact, that whoever knows count guido supposes he has married a girl, not merely of rank unequal to his own, but even of the basest condition, and this greatly injures the reputation of his entire household. or else [_second_] francesca was indeed conceived of an unknown father and born of a dishonest harlot. and it cannot be denied, that in that case he suffered even greater injury, which branded him with a mark of infamy; both because of her birth and from the fact that daughters are usually not unlike their mothers. cephalus [citations], where we read: "from such mingling with harlots it is to be supposed that the people become degenerate, ignoble, and burning with lust." and would that experience had not taught us this fact! the unfortunate man believed he was marrying the daughter of pietro and violante, born legitimately, and yet by the contrivance and trickery of this couple he married a girl of basest stock, conceived illegitimately by a dishonourable mother. from this fact alone the quality of those parents can be inferred, who, for the sake of deceiving those lawfully entitled to the trust-moneys, had made most vile pretence of the birth of a child, entirely unmindful that they laid themselves liable to capital punishment. [citations.] it will not, therefore, be difficult to believe what francesca reveals in her letter to her brother-in-law, that the abovesaid couple, in spite of the fact that she was well treated, kept instigating her daily to poison her husband, her brother-in-law, and her mother-in-law, and to burn the home. and though these crimes are very base, they gave her still worse counsel, even by her obligation to obey them; namely, that after their departure from arezzo, she should allure a lover, and leaving her husband's home in his company, should return to the city. in her obedience to their commands, this daughter seemed indeed all too prompt. who then will deny that such reckless daring, wherefrom a notorious disgrace was inflicted upon the entire household of the accused, ought to be attributed to the base persuasion of the said couple? nor was it difficult to persuade that girl to do what she was prone to by inborn instinct and by the example of her mother. it is not my duty to divine why that couple so anxiously desired the return of francesca to their home. but i cannot persuade myself that they were moved by mere charity, namely, that she might escape ill-treatment. for francesca, in the said letter, acknowledges that she is leading a quiet life, and that her husband and the servants are treating her very well, and that what she had laid before the bishop had been the falsehood of the said couple. i know furthermore that if a husband have knowledge of the adultery of his wife and keep her in his home, he cannot escape the mark and penalty of a pimp. [citations.] if, therefore, as the said couple declare, francesca was not their daughter, why did they receive her so tenderly into their home after her adultery was plainly manifest? why did they, as i may say, cherish her in their breasts, not merely up till the birth of her child, but even till death? and i wish i could say that her love affairs with the banished [priest] were not continued there! for at his mere name, after the knocking at the door, as soon as they heard that some one was about to give them a letter from the one in banishment, immediately the door was opened and guido was given an entry for recovering his honour. if, indeed, the said couple had been displeased with the adultery of francesca, they would, without doubt, have shuddered at the name of the adulterer, and would have cut off every way for mutual correspondence. therefore it is most clearly evident that the cause of wounded honour in the accused had continued, and indeed new causes of the same kind had arisen, all of which tended toward blackening his reputation. nor does it make any difference that the accused may have had in mind several causes of hatred toward both francesca and the comparini. for if these are well weighed, they all coincide with, and are reduced to, the original cause, namely, that of wounded honour. however that may be, when causes are compatible with one another, the act that follows should always be attributed to the stronger and more urgent and more acute. [citations.] and on the point that when several causes concur, murder is to be referred and attributed to injured honour, and not to the others: [citations.] therefore i think that any wise man ought to acknowledge that guido had most just cause for killing the said couple, and that very just anger had been excited against them. this was increased day by day by the perfectly human consideration that he would not have married her unless he had been deceived by that very tricky couple. and to what is said above we may add that either the child born [of pompilia] was conceived in adultery, as the accused could well believe, since he was ignorant of the fact that his wife was pregnant during her flight; and then we cannot deny that new offence was given to his honour, or the old one was renewed, by the said birth; or the child was born of his legitimate father; and who will deny that by the hiding of the child, guido ought to be angered anew over the loss of his son? and the great indignation conceived from either cause (the force of which is very powerful) is so deserving of excuse that very many atrocious crimes committed upon the impulse of just anger have gone entirely unpunished. [citations.] the following text [citation] agrees with this, "nevertheless, because night and just anger ameliorate his deed, he can be sent into exile." [citations.] and not infrequently, in the contingency of such a deed, men have escaped entirely unpunished, who, when moved by just anger, have laid hands even upon the innocent. for a certain smyrnean woman had killed her husband and her son conceived of him, because her husband had slain her own son by her first marriage. when she was accused before dolabella, as proconsul, he was unwilling either to liberate one who was stained with two murders, or to condemn her, as she had been moved by just anger. he therefore sent her to the areopagus, that assembly of very wise judges. there, when the cause had been made known, response was given that she and her accuser should come back after a hundred years. and so the defendant in a double murder, although she had also killed one who was innocent, escaped entirely unpunished. [citation.] likewise, a wife who had given command for the murder of her husband because of just anger from his denial of her matrimonial dues was punished with a fine, and a temporary residence in a monastery, as cyriacus testifies. [citation.] such pleas might indeed hold good whenever the accused had confessed the crime, or had been lawfully convicted, neither of which can be affirmed [in our case]. but much more are they to be admitted, since he confesses only that he gave order for striking his wife's face, or for mutilating it; and if those he commanded exceeded his order, he should not be held responsible for their excess. [citations.] his fellows and companions give his name, and claim that he had a hand in the murders. and in spite of the fact that the fisc claims they have hidden the truth in many respects, equity will not allow that certain matters be separated from their depositions and that these be accepted only in part; for if they are false in one matter, such are they to be considered in all. it would be more than enough to take away from those depositions all credence that, under torture in his presence, they did not purge that stain. [citations.] it has very justly been permitted that in defence of this noble man, i should deduce these matters, as they say, with galloping pen. the scantiness of the time has not suffered me to bring together other grounds for my case; these could be gathered with little labour, and possibly not without utility. yet i believe that all objections, which can be raised on the part of the fisc, have been abundantly satisfied. giacinto arcangeli, _procurator of the poor_. [file-title of pamphlet .] _by the most illustrious and most reverend lord governor in criminal cases_: _roman murder-case_ _on behalf of count guido franceschini and his associates, prisoners, against the court and the fisc._ _memorial of law by the honourable advocate of the poor._ _at rome, in the type of the reverend apostolic chamber, ._ romana homicidiorum [pamphlet .] most illustrious and most reverend lord governor: from the "prosecution [for flight]," which was brought in this very tribunal, and by his honour, lord venturini, judge in this present case, there is more than satisfactory proof of adultery committed by francesca pompilia, wife of count guido franceschini, a nobleman of arezzo, with the canon caponsacchi. with caponsacchi the parents of this same francesca pompilia entered into conspiracy, although they were living here in the city. and after she had given an opiate to count guido and his entire household, she fled that same night from the city of arezzo toward rome. consequently, the canon, as may be remembered, was banished to civita vecchia, with a statement of his criminal knowledge of that woman in the said decree of condemnation. this adultery is also evident from other matters of evidence deduced by the procurator of the poor. there remains, accordingly, no room to doubt it, but rather their adultery may be said to be notorious here in the city, in the country of count guido, and throughout all etruria. since this is established, we can safely assert that even if guido had confessed that he slew his wife with the complicity and help of blasio agostinelli of the town of popolo, domenico gambassini of florence, francesco pasquini of the castle of monte acuto, and alessandro baldeschi of tiferno, he should not therefore be punished with the ordinary death penalty, but more mildly. this is in accord with the decision of emperor pius as related by ulpian [citation] and by martian. [citation.] for in both of them it is said that a man of low birth is sent into perpetual exile, but that a noble is banished only for a limited time, but the crime of a husband who is moved by just anger is overlooked, as this same ulpian confirms [citation], since it is most difficult to restrain such anger. [citation.] yet we should not consider it necessary that the adultery of the wife be conclusively proved (as it really is) in order that there be room for mitigating the said penalty. for it would be enough, if we were dealing with a case of mere suspicion: glossa, etc. "a man who had killed his son because he believed the young man had lain with his stepmother, as was true, was deported to an island." [citations.] dondeus also speaks of a man who had boasted that he wished to ruin the sister of the one who killed him, which is said to have aroused just suspicion and fear for the loss of honour sufficient to free the slayer from the ordinary penalty of murder. [citations.] nor is it true, as some authorities affirm, that the husband must take the wife in very adultery, and kill her immediately; in which case, they say the abovesaid laws hold good, but that it is otherwise if the murder is done after an interval. [citations.] for the contrary opinion is the truer, the more usual, and the one to be observed in practice, as marsilius well advises, where he speaks in defence of a certain nobleman who had killed another person after an interval. the man slain had betrothed his sister by promise and had kept her for three months, and had then rejected her. because of this, a great injury and much infamy were inflicted upon his family and the entire kin. marsilius then adduces the abovesaid laws, which pronounce concerning a husband who kills his adulterous wife; and bertazzolus offers the case of one who had killed his adulterous wife and had afterward, in his own defence, proved the adultery by the double confession of the same wife. claudius jr. testifies that the murderer was banished for a time by the praetor of mirandola, and after the lapse of several months he was recalled by the duke of mirandola. [citations.] afflitto cites the decree of the kingdom, beginning _si maritus_, which concedes impunity to a husband who kills his wife and the adulterer both, in the very act of adultery, and without any delay. he then says that if both of these requisites are not present, the husband is excused in part, but not entirely; and so is punished more mildly. and in no. he gives the reason; because whenever one commits a crime, under impulse of just anger, the penalty should be somewhat moderated, according to the aforesaid text. [citations.] matthæus [citation] adduces the excellent words of theodoric as quoted by cassiodorus [citation], where we read: "for who can bear to drag into court a man who has attempted to violate his matrimonial rights? it is deep-seated even in beasts that they should defend their mating even with deadly conflict, since what is condemned by natural law is hateful to all living creatures. we see bulls defending their cows by strife of horns, rams fighting with their heads for their wethers, horses vindicating by kicks and bites their females; so even these, who are moved by no sense of shame, lay down their lives for their mates. how then may a man endure to leave adultery unavenged, which is known to have been committed to his eternal disgrace? and so if you have made very little false statements in the petition you offer, and if you have indeed only washed away the stain to your marriage-bed by the blood of the adulterer, taken in the act, and if you are looking back from your exile, which was evidently inflicted not by reason of a bloodthirsty mind, but because of your sense of shame, we bid you return from your exile; since for a husband to use the sword for the love of his sense of honour is not to overthrow the laws, but to establish them." dondeus says this interpretation is clearly proved by the authority of a glossa in the chapter: _ex litterarum_. [citation.] for in the text, when these words are used: "your wife taken in adultery," a glossa explains the word "taken" as equal to "convicted." marta says this opinion is much more just and equitable, and is commonly held. and muta (_dec. siciliæ _) in the end offers a decision of the supreme court of the kingdom, by which a husband was condemned to the galleys for seven years. this was on account of the accompanying circumstances; for he had had his wife summoned outside of the city walls by his son, and there had killed her; and afterward her body was found to have been devoured by dogs. dexartus testifies that it was thus decided in sacred royal court, in condemning a husband only to exile. sanfelix also tells us that certain noble young men, who had killed their wives, after an interval, because of strong suspicion of adultery, were absolved by the royal council of naples, in view of the quality of the persons concerned. in their favour, authorities of the highest rank had written, whose allegations this same author places under the said decision. and although some of these young men were condemned to the oars, he said that this punishment had been imposed because of the mutilation of the privates which followed; because those who do such things are considered enemies to nature. (_panimoll. dec. ._) and caldero, although in the preceding numbers he inclined toward an opinion contrary to ours, came over to our side when he saw that matthæus held that opinion. and the reason is very evident, for whenever such an injury is suffered by fine natures, especially among the noble class, it is ever present with them, and continually oppresses the heart, and urges it on to vengeance for the recovery of lost honour, as giurba well notes. [citations.] for this reason, it has always and everywhere been held in case of murder committed for honour's sake that there is no place for the ordinary death penalty, which should be mitigated at the discretion of the judge. and this rule has been followed, when the murder was committed after an interval, and even after a long interval. for the abovesaid reason, both grammaticus and gizzarellus affirm and hand down this opinion. the latter says that it has always been so adjudged by the sacred council of naples, and that this opinion has always been accepted by our ancestors. [citations.] it was so judged by the high court of the vicar, although it was dealing with a murder committed after two years, and by craft, by two brothers upon the adulteress in the presence of her sister's cousin. cyriacus also speaks of the murder of a husband by his wife, because he was keeping a mistress and was contriving against her honour; and there he said that since just anger has a long continuance, because of its extreme bitterness, vengeance should always be said to follow immediately. [citation.] another reason also is at hand, which is considered by the authorities, namely, that an injury, whereby the honour is hurt, is not personal, but real, and therefore can be resented at any time whatsoever, even after the lapse of a very long time, as giurba holds in our circumstances. [citations.] we have therefore a great many standard authorities who affirm, for most vital reasons, that murder committed, even after an interval, upon the person of the wife or of any one else, for honour's sake, ought not to be punished with the ordinary death penalty, but more mildly. furthermore, these authorities bear witness that the matter has been so judged in the tribunals with which they are acquainted. no attention therefore should be paid to the opposite opinion held by farinacci [citation]; for we plainly see that he speaks contrary to the common and usually accepted opinion in tribunals. [citation.] still further it should be noted that the same author in _cons. , num. _, holds the very opposite, basing his opinion especially upon a text in the law of emperor hadrian [citation], where a father had killed his son, who was not found in the act with his stepmother, but while out hunting and in the woods, that is, after an interval. and he was punished not with the death penalty, but by deportation. several of the above-cited authorities offer the decision of this text likewise in corroboration of this opinion of ours. our point is also proved by the fact that this same author in _quaest. _ is rather doubtful; and there he acknowledges that for this opinion of ours the reason given above is very strong, namely, that "injured honour" and "just anger" always oppress the heart. and so he says in such a case one should note the sense of the text in the law _non puto_ [citation], where modestinus, doctor of law, says that he thinks that one would not make a mistake who in doubtful cases should readily give this response against the fisc; and farinacci cites him so speaking. but one should be on his guard against what this same farinacci asserts: namely, that this opinion of his, so far as he could see, was the one more approved by the sacred court. for since this point of doubt, as he himself confesses, had not then been advanced, he could not judge what would be the outcome if it had been proposed. and indeed the wisest of the said high authorities do not give their assent to his opinion, but rather hold the contrary, which is favourable to ourselves, as is seen in the decisions they have given from time to time. for it was so held on march , , in the case of carolo falerno, who was condemned to an unusual penalty for the murder of francesco domenici; for he had found him coming out of a church, to which he had warned him not to go, as he was suspicious that the one slain was following his wife. in like manner with carolo matarazzi, august , , who killed his wife on the foolish grounds that he suspected her of illegitimate conception because of the absence of her menses; but this suspicion did not indeed correspond with the truth. and in law a matter may be even more mistaken and less observed by human intellect. [citations.] likewise in a murder committed treacherously with an arquebus upon the person of tomaso bovini by francesco mattucio of monte san giovanni, a person of the very lowest class, merely because of the attempted dishonour of his sister. the attempt of the one killed was proved by two witnesses on hearsay of the one slain. on september , , the penalty of life sentence to the galleys, to which the said mattucio had been convicted on strongest proofs on the preceding july , was moderated by the sacred court, before the right reverend father ratta, of blessed memory. with good right, therefore, this same farinacci is expressly confuted and overthrown by matthæus. [citations.] this opinion of ours is to be accepted the more readily when we consider that the husband is more stirred by the adultery of his wife than by the murder of his son. [citations.] yes, and even more than by the defilement of his daughter. [citation.] so that if a husband does not complain of the adultery of his wife, he is considered a pimp, as paschal holds, where we read recently: "adultery of the wife gives offence not merely to the husband, but blackens and stains the entire kin." [citations.] that this happened in the present case is plainly evident; for abate paolo, brother of guido, was compelled not only to leave the city, in which he had lived for many years with highest praise, but even to pass out of italy, because he was pursued undoubtedly by the greatest disgrace on account of this adultery. while he was carrying on guido's cause in the courts, he moved the laughter and sneers of almost all sensible and wise men, not to say of the very judges themselves, as usually happens in these circumstances. [citations.] nor would it stand in the way of what we have said above, if without prejudice to the truth, we should admit (as the fisc claims) that count guido killed his wife with the complicity and aid of the said blasio, domenico, francesco, and alessandro, assembled for that purpose; for he could do that in order to take vengeance upon her more easily and more safely. [citations.] [nor would it stand in our way if we admitted] that he had assembled the said men by means of money. [citations.] nor does this plea of injured honour cease with regard to the murders of the said father-in-law and mother-in-law; for since their conspiracy in the adultery of their daughter is established, they themselves were among the causes of the injury and ignominy which resulted therefrom to the prejudice of the honour and reputation of count guido, their son-in-law, and her husband respectively. therefore, these murders likewise ought to be punished with the same penalty as the principal, according to texts in the law _qui domum_. [citations.] and so they gave cause enough to count guido to take vengeance on them. it is to be added, furthermore (as will be proved indeed, and as count guido himself has asserted in his testimony), that they themselves did another injury to his reputation by means of the civil suit which they brought on the grounds of the pretended birth of francesca pompilia; and not merely here in the city, but also in his own country, they distributed the most bitter libels, which were added to this same lawsuit. hence it cannot be denied that count guido for this reason had conceived a just anger and provocation, and that he had just cause for taking vengeance. this is according to the text [citation], where alexander the third wrote to the bishop of tournay that a certain woman who had killed her child should be placed in a monastery, because she was reproached by her husband with the accusation that it had been conceived in adultery. for in crimes where anger does not entirely excuse, still the delinquent who kills in anger conceived from just grievance is somewhat excused. [citation.] and this is true in spite of the fact that the fisc may claim that the penalty given in the constitution of alexander has been incurred. for in the present case the crime cannot be said to have been committed on account of hatred aroused by the lawsuit; for in that suit count guido had gained a favourable sentence from judge tomati, which was sanctioned by the supreme tribunal of justice. but the crime was committed indeed because of his just indignation. and this arose, first, from the ignominy growing out of the said pretence as to her birth; second, from the provocation given by the comparini (now slain) in issuing and distributing the said papers; and, third, from their conspiracy in the flight of his wife. for indeed this constitution of alexander does not apply where no guile is present and where some provocation has been given by the one hurt. farinacci very fully affirms this throughout _cons. _, where in the end he places the complete decision of the sacred court. in any case, since with count guido two causes for committing crime concurred: one the aforesaid matter of the lawsuit, another wounded honour because of the lawsuit brought and the flight in which they conspired, wherefrom the adultery had followed, the cause of honour should be given attention, as it is the graver and consequently the more proportionate to the crime. [citations.] likewise the penalty should not be increased in view of the place of the crime, because the defence of one's honour is so justifiable, and the anger and commotion of mind arising therefrom is so just, that reason for it cannot be demanded, as merlin pignatelli [citation] holds, because giovanni francesco de carrillo [citation] speaks of an insult offered in prison. and no. approves the decision for the reason that greater reverence is due to churches and other places consecrated to god, and in which the king of kings and lord of lords dwells in essence; and yet one who commits crime in them from just anger and grievance is excused; for he asserts that all canonists and other authorities there alleged by him unanimously acknowledge this. more readily, therefore, should this conclusion follow in our case, since the said francesca was not staying in a formal prison, but was merely keeping her home as a prison, under security of scudi, that she would not depart therefrom; because one who has given bond and has sworn not to leave a place is neither in chains nor in custody. [citations.] lucano holds that there are differences between being kept in chains and being committed under bond, etc. and farinacci holds that the word "custody" should be more strictly interpreted than the word "chains." [citations.] even if, therefore, count guido had confessed that he killed his own wife, his father-in-law, and his mother-in-law, with the complicity and aid of the above-named helpers, he should not be punished with the ordinary penalty, for reasons given above. and much more readily should we follow this opinion since we can see that he confessed only that he gave commands for mutilating his said wife (_ad sfrisiandum_), if i may use the word of the authorities. in this case he is not to be held responsible for the subsequent death of his wife and of the others. decian, _cons. , no. _, in this very condition, holds that one giving orders can be punished only for the manner of committing the crime for which bodily punishment cannot be inflicted. thus far the fisc has been unwilling to rest satisfied with such a qualified confession. yet since he claims the right to torture the accused for proving some further pretended truth, the torture shall be simple; nor can the torment of the vigil be inflicted; because the constitution given out by pope paul fifth, of sacred memory, for the reformation of the courts of the city, stands in the way of that. this is included among his constitutions as the st. by this it was decreed that such torment could not be inflicted unless these two features jointly concur: namely, that the crime be very atrocious and that the accused be burdened with the strongest proofs. [citations.] but a crime is said to be "very atrocious" provided it is one for which a penalty more severe than mere death should be inflicted, such as useless mutilation, burning, and the like. _farinaccius qu. , num. _, etc. and such a death, as ignominious and infamous, has no place with the persons of nobles. [citations.] hence it is much less so here, because we are not arguing about the death penalty even, which does not enter into the present case for reasons given above. and gabriellus speaks to this effect on the point that such a crime may not be said to be qualified. what has been said in favour of guido, the principal, also stands in favour of the aforesaid blasio, domenico, francesco, and alessandro; because they cannot be punished with the ordinary penalty, but only with the same penalty as the principal. [citation.] baldo cites a case under the statute which shows that one under bann for a certain crime cannot be killed save by the enemy who had him put under bann; and he says that if the enemy has him assassinated, the assassin is not punished. and he gives this reason, that what is permissible in the person of the one giving the order should be held as permissible in the one to whom orders are given; and he says it had been so held in a case under that law. castro [citation] holds that when one is permitted under the statute to take vengeance upon a person who has given him offence, he is also permitted to assemble his friends, to afford him aid, and that they shall go unpunished, just as the principal does. he also asserts that jacobus butrigarus [citation], held thus, in _cons. _, where he speaks of the case of a husband who had assembled men to beat one who had wished to shame the modesty of his wife, he ordered his wife to pretend to give ear, and when the intriguer had come, murder was committed. and he says that men brought together in this way should be spared, because such an assembly was permissible for the husband, who was principal. [citation.] jason holds that in any vengeance permitted by law, one cannot demand it of another; yet he to whom it is permitted may take fellows and accomplices with him for the same act, and if they kill in company with him they shall not be held to account for the murder nor for the aid they have given; and he says that this opinion should be much kept in mind. cæpollinus also illustrates this in several cases, especially in that of certain men who had killed one keeping the company of the sister of the man who had assembled them; and he says that they should not be punished, just as the principal was not, and he gained his point so that it was thus adjudged. [citations.] soccini also holds it should be thus adjudged, unless one wishes to say that they should be punished with a slighter penalty than the principal, as often happens in the case of auxiliaries. and he speaks in our very circumstances of men assembled by a husband for the sake of killing one who had polluted his wife. in these same circumstances, see also parisius. [citation.] carera [citation] speaks of a father who had his daughter (who had been keeping bad company) killed by an assassin; and he says that neither the father nor the murderer are to be held to account. [citation.] marsilius also, after placing in the very beginning this principle that when one matter is conceded all seem to be conceded which lead thereto, draws inference therefrom for the present case and many reasons for it are adduced. cassanis also [citation] holds that men assembled in this way are not held responsible either for the murder or for the aid furnished, if they do the killing in the company of the principal. and in these same circumstances garzonus speaks, decision , throughout. nor does it stand in the way of our reasoning that one of the aforesaid defendants had inflicted wounds with his own hands, or had killed one of the victims; as francesco has confessed that he inflicted four or five wounds in the back of francesca pompilia. even in these circumstances the rule holds good that auxiliaries shall not be punished with greater penalty than the principal. and so affirm individually the following authorities among those recently cited. [citations.] and garzoni testifies that it was so adjudged in the said decision , where we read: "or he may have with himself associates for this act," and if they kill the adulterers in company of the principal they are held to very slight account, either for the murder or for the aid given, and it was so adjudged. and even in the more extreme case of one killing by assassination, and consequently in the absence of the principal, this is the opinion of baldo [citation], where we read: "and now it is inquired whether an assassin is ever punished, and i say he is not; because what is permitted in the person giving command is also permitted in the person commanded." castro [citation] also says: "because what i can do of myself i can have done through my helpers who are necessary for that purpose." and afflitto [citation] says: "either with one's own hands, or by help of another, even with the influence of money, and thus by an assassin; for baldo says on this same point: 'what is permitted in the person giving command is also permitted in the person commanded'; and he witnesses that it was so adjudged." [citations.] marta [speaks as follows]: "much more so because authorities affirm that a husband, who on account of fear cannot kill the adulteress, may even by the help of money demand of another that he kill her, and neither of them is then to be punished." but whatever caballus [citation] may say to the contrary, he bases his opinion upon castro and rollandus. castro, however, favours our opinion, as is to be seen in no. . rollandus should not be given heed; for when he offers this very same opinion about the statute which permits any one to take vengeance; and says that since this kind of permission is personal, it cannot be passed on from one to another, this opinion of his is expressly contrary to the teaching of baldo, castro, jason, and others, whom we have alleged above in paragraph _quae dicta sunt_. and since this opinion of ours is milder and more equitable, it should hold good, as jason decides on this point. [citation.] nor can the punishment be increased because of the alleged carrying of prohibited arms; because the latter offence is included then with the real crime. [citations.] in guazzin we read that this is so, even if for the carrying of the arms a greater penalty would be inflicted [than for the principal offence]. and so, whenever it is evident that the crime has been committed for honour's sake and for a just grievance, as in the present case, the carrying of the arms may go unpunished, or at least it should not be punished with a more severe penalty than should be imposed for the principal crime itself. thus policardus [citation] well affirms when speaking of arms which are considered treacherous by the banns. these claims should hold good more readily as regards domenico and francesco, who are foreigners, and are therefore not included in any of the apostolic constitutions or banns, which prohibit the bearing of arms under very heavy penalties. [citations.] especially since they are minors, as is made clear in the course of the trial, pp. and ; in which case they are likewise not bound by these constitutions and banns, which give judgment upon the crime of a minor. for the power to make and establish such regulations was lacking in the prince or public official concerned. [citations.] such are the matters which, in view of the excessive scantiness of time, i have been able to collect in discharge of my duty for the defence of these poor prisoners. nor do i at all distrust that my lords judges, when they see that too little has been said, will wish to supply and offer what is lacking out of the high rectitude for which they are distinguished. for this would be quite in accord with the decree of emperors diocletian and maximian, as related. [citation.] and they will follow the advice of hippolitus marsilius, famous in criminal proceedings, who says that a judge is obliged by his office to seek out grounds of defence for the accused. [citations.] desiderio spreti, _advocate for the poor_. [file-title of pamphlet .] _by the most illustrious and most reverend lord governor in criminal cases_: _roman murder-case._ _in behalf of blasio agostinelli and his associates, prisoners, against the fisc._ _memorial of fact and law._ _at rome, in the type of the reverend apostolic chamber, ._ romana homicidiorum [pamphlet .] most illustrious and most reverend lord: the plea of injured honour which redeems count guido from the rigorous penalty that should follow for the commission of murders, likewise urges mitigation of the ordinary penalty for blasio and the associates who had hand in the murder, even though it may be pretended that they were paid thereto. for it is taken for granted that we are dealing with a case far removed from assassination, because of the presence of a person who had real cause for vengeance, as the following authorities think in common. [citation.] there has been the strongest controversy among authorities as to whether a father or husband may demand of any one except his son the murder of his daughter or of his adulterous wife. and divided on the two sides of the question, they have contended strongly. [citation.] yet the majority are in favour of the affirmative and of the milder sentence; and often, in the event of such a murder, it has evidently been so adjudged. [citation.] but since this question lies outside of our line of argument, it would be vain and quite useless labour to take it up, nor is time to be wasted when we are so hard pressed for it. for we are evidently dealing with auxiliaries, assembled for committing homicide, according to the thought of the fisc. hence the conditions of a mere "mandatory" are not applicable; because of the immediate presence of the principal in the crime; for when he also lays hand to the crime, those who do likewise are not called mandatories, but auxiliaries and helpers. [citations.] furthermore, just as guido himself is freed from the death penalty because of the said plea of injured honour, so likewise are his allies and auxiliaries freed, as the following authorities unanimously assert. [citations.] those who are cited in support of the opposite view do not pronounce opinion in our peculiar circumstances, but speak of a husband demanding of another the murder of his adulterous wife, and not of auxiliaries who do the killing in company with the husband, as in our case. [citations.] in such contingency, auxiliaries who give aid to a husband while killing his adulterous wife have always enjoyed the same indulgence as the principal himself; that is, they always escape the capital penalty, and indeed go entirely unpunished. [citations.] nor does the distinction of caballus make any difference, where he holds that auxiliaries may indeed assist with impunity a husband or a father killing a wife or daughter respectively, in order that these may kill the more safely; but that they cannot lend a hand and actually kill; for in the latter case they are to be held accountable for the murder. because, for foundation in making such a distinction, he plants his feet upon paolo de castro. [citation.] but this is so far from proving his purpose that it rather turns back on him remarkably to his own injury. for after the latter sets before himself this kind of a difficulty, under no. , he adds: "but i hold entirely the contrary: that neither the one who did the killing nor he who made the assembly (as it may be called) are to be held for the murder for the purpose of inflicting the capital penalty." this is also true in the council of rollandus a valle. [citations.] may that learned authority pardon me; for even if he does attempt to confute paolo de castro in the said th council, which is in our favour, under the pretext that he speaks contrary to the common opinion, this claim does not suffice in view of the above-cited authorities. and if there were time, i would demonstrate this more clearly. furthermore, rollandus alleges parisius, _cons. , lib. _. but he could well omit that, because no. proves expressly contrary to him on its very face, where it says: "under our very conditions was given that excellent decision of paolo de castro in the before-cited council. in stronger circumstances (which also include the present case) he concludes that those who knew of, or were present, or were associated with a husband in the act of the said murder, and who furnished him aid, ought not to be punished with a greater penalty than the principal, according to the rule concerning auxiliaries, beside the accurate authority of marsilius." and he concludes that at the very worst, when the utmost rigour of it is considered, they should not be punished with more than a temporary banishment. furthermore, rollandus in the said council is expressly confuted by facchinus. [citation.] nor is this without vital reason. for just as a qualification that modifies a crime in the principal delinquent increases it also for the auxiliaries, whenever they are aware of it, so all sense of equity demands that a qualification that diminishes the penalty for the principal, even though it be unknown to the auxiliaries, shall act in favour of them also. [citations.] hence caballus remains without a stable foundation, and is opposed to the opinion of the many doctors here alleged, who make no distinction between those who simply assist and those taking a hand in the murder; and indeed all of them speak of auxiliaries. furthermore, it is found that this has often been the judgment, even in the more extreme circumstances of one commanded to a murder, as was said above. and so strong is the plea of injured honour that not only does it extend its protection to mere mandatories, but even to mandatories whose case is modified by the circumstance of assassination. and it causes them to be absolved, as we find that it was so decided. [citations.] hence if both mandatories and assassins are redeemed from the ordinary death penalty, whenever they kill an adulteress at the command of the husband, it necessarily follows that the distinction of caballus is not a true one, nor is it accepted in practice. for if they are mandatories, we cannot deny that they may kill with their own hands; and nevertheless, not to speak of the other decisions cited above, clar. [citation] testifies such a decision favourable to the accused was handed down, contrary to the opinion of caballus. if, therefore, blasio and his fellows are not to be punished with the death penalty for affording aid in the murders, vain is the question whether they can be subjected to the torment of the vigil for the purpose of having the very truth from their own mouths. for this procedure demands two requisites: one that the most urgent proofs stand against the accused, and the other that the crime be very atrocious, according to the prescript of the bull. [citations.] and although the powers of this tribunal are very great for the dispensing with one of the said requisites, yet i have never seen the said torment of the vigil inflicted unless when there was no doubt that the crime, for which the fisc was trying to draw confession from the accused, deserved the capital penalty. we cannot believe that the prosecution expects to make a case to this end because of the pretended conventicle; since those who are assembled are not to be held under the penalty for conventicle, but only the one who assembled them is so held, as baldo well asserts. [citations.] nor in this case can the penalty for the asserted conventicle be made good against count guido himself, since the cause for which he assembled the men aids him in evading the penalty; inasmuch as one may assemble his friends and associates for the purpose of regaining his reputation. [citations.] for this has been well proved, that whenever any one for just grievance assembles men to avenge his injury, he has not incurred the crime and penalty of conventicle. and although farinacci, _quaest , n. _, declares that this holds good provided the vengeance be immediate, but that it is otherwise if the vengeance be after an interval, yet i pray that it be noted that in either case, if it concern vengeance for a personal injury (in which conditions he himself speaks), and therefore when for an injury which wounds the honour, such vengeance is at all times said to be taken immediately. for such an injury always urges and presses, because it should be termed the restoration and reparation of honour (which the one injured in his reputation could not otherwise accomplish), rather than vindication and vengeance, as we believe was satisfactorily proved in our other plea in behalf of count guido. but all further difficulty ceases with this consideration: prosecution can be brought for conventicle, if the men were assembled for an evil end and no other crime followed therefrom; but when, according to the sense of the fisc, they have been called together for committing murders, and these are really committed, no further action can be taken as regards the prohibited conventicle, but rather for the murders themselves; for the assembling of the men tended to this same effect. [citations.] and it is for this reason more particularly; because when the beginning and the end of an act are alike illegal, the end is given attention, and not the beginning, as bartolo teaches us. [citations.] it is to be added still further, that the assembling of men is not illegal in itself; indeed it is possible for it at some times to be both permissible and worthy of approval, as in the cases related by farinacci. but it is illegal because of its evil consequences and the base end for which it is usually made. hence, as the assembling of men is prohibited, not in itself, but because of something else, the end ought to be considered rather than what precedes the end. nor should the rigorous penalty of death be inflicted at all upon domenico gambassini and francesco pasquini for the pretended carrying of arms of illegitimate measure; because they are foreigners and had not stayed long enough in the ecclesiastical state so that their knowledge of this law could be taken for granted. nor ought it to be inflicted upon the others; for even if the death penalty is threatened by the constitutions and banns for the bearing or retention of them; yet since the carrying of this kind of arms is not prohibited for reasons in itself, but because of the pernicious end which follows it, or can follow it; and because this bearing of arms was looking towards the said murders; and because these, although they are not entirely permissible, are not utterly without excuse, the crime of carrying such arms should be included with the end for which they were carried; because the one is implied in the other, nor may the means seem worse than the end. and although, according to the opinion of some persons, the penalty for carrying arms is not to be confused with the crime committed with them, whenever the latter is the graver, yet this seems to be so understood when a crime is committed with them which is entirely illegal and without excuse. but this is not so when the crime is deceased and extenuated, and indeed excused in part, because of the reason for which it was committed. in any case, the bearing of arms, according to common law, is but a slight crime. [citations.] although by special constitutions and banns the penalty has been increased almost to the highest possible point, yet this kind of increase does not change the nature of the crime. and just as in the eyes of the common law, torture is not inflicted for getting the truth from those indicted for the said carrying of arms, in view of the insignificance of the crime, in like manner it cannot be inflicted by the force of constitutions and statutes which have increased the penalty. [citations.] and this is especially true in the case of the torment of the vigil, which cannot be inflicted for a crime that is not in its very nature most atrocious, but that is held as such, so far as the penalty is concerned, merely by the strength of a decree. this holds good unless indeed the nature of that crime is changed according to the method of proceeding in it. [citation.] and we see in the banns of our illustrious lord governor that he expressly declared this, when he wished to proceed with the torment of the vigil in cases in which he could not proceed legally; that of a certainty he would not do so. nor would he indeed have done this, if he could have inflicted such tortures in the case of crimes which are not capital by common law, but are to be expiated with the death penalty by the rigour of the banns. giacinto arcangeli, _procurator of the poor_. [file-title of pamphlet .] _by the most illustrious and most reverend lord governor in criminal cases_: _roman murder-case with qualifying circumstance._ _for the fisc._ _summary._ _at rome, in the type of the reverend apostolic chamber, ._ summary [pamphlet .] _no. ._--_the sworn testimony of a witness as to the poverty of said count guido franceschini and the miseries suffered by the signori comparini while they stayed in his home in the city of arezzo._ _june , ._ angelica, the daughter of the deceased pietro and johanna battista of castelluccio, in the diocese of arezzo, about years of age, was examined by me on behalf of pietro comparini, against any one whomsoever, and put on permanent record; as to which testimony, she took oath to speak the truth, as is seen below. i tell you in all truth, sir, that while i was staying in arezzo last january in the home of signora maddalena baldi albergotti, the chance was offered me to go and serve signora beatrice franceschini and her sons, etc. i decided to do so, and when i had gone to the home of the signori franceschini i spoke with the said signora beatrice. she drew me aside into a little room and told me that she would take me as a servant, but that i should never have any private dealings with the two old people who were in the house; one of them was signor pietro comparini and the other signora violante, his wife. she charged me still further that if either of the two old people chanced to call me into their chamber, i should not go without first asking her permission. on these terms i accepted the service. after i had entered thereupon, i noticed that signora violante stayed in her room most of the time, weeping, and though the comparini were stiff with cold, the room was without fire. hence i took pity on her, and without the knowledge of signora beatrice, i took the coals from my own brazier and carried them to her. but no sooner did i offer them to her than signora violante ordered me out of the room, lest signora beatrice might take offence that i had done this act of charity. also, once among the many times, when signora beatrice found it out she made me leave the coals in the fireplace and snatched the shovel from my hands, and threatened me, saying that if she had wished it she herself would have come to bring it; because she did not want me to do any service whatsoever for the said signori comparini. and the comparini could not even speak among themselves, because signor guido franceschini, the canon girolamo his brother, and signora beatrice, their mother, would stand at one door or another of the apartment and listen to what the said signori comparini were saying to one another. this occurred every evening and morning until the said signor pietro left the room and the house. and when he returned at night they were unwilling for me to make a light for him on the stairway. and once when signor pietro came back home about half-past six in the evening, and i heard him scrape his feet, i took up the lamp to go and meet him. but signor guido noticing that, snatched the lamp from my hands, telling me that i had better keep still, and that i had better not approach unless i wished to be pitched out of the window. and this seemed all the worse to me, because when i first entered upon the service of the said franceschini i had heard it said around the house that one evening, as signor pietro was coming back home, he had fallen, while ascending the same steps without a light, and that he had made a very ugly bruise, because of which he had had to keep his bed for many days. at the same time, while i was in the said service, it chanced one morning at breakfast that the franceschini gave some offence to signora violante, because of which a mishap befell her. for no sooner had she reached her own room than she threw herself into a straw-chair and swooned away. when signora francesca pompilia, wife of the said signor guido, found it out, she began to weep and to cry out with a loud voice, saying, "my mother is dying." whereupon i ran to signora violante and began to unlace her, and turned to bring her a little vinegar and fire. but because there was no fire i took some wood and put it in the fireplace to kindle it. when signora beatrice saw this she snatched the wood from the fire, in great anger, and told me to take the ashes, which were quite enough to warm her feet. so i took the ashes that were in the fireplace, but because of the intensely cold weather they were cool when i reached the room where the signora violante was half dead. accordingly, the signora pompilia and i, both of us weeping, unclothed signora violante and put her in the bed, which was as cold as ice. and because i was crying when i returned to the kitchen, after having put signora violante to bed, signora beatrice said to me: "do you want me to take a little hemp and wipe your eyes?" signora francesca pompilia also heard this, and she made some complaint to signora beatrice who did not want me to return to the room again nor to make a little gruel, as signora violante had ordered. it happened a few days later, during the month of february following, that while the signori franceschini, francesca pompilia, signor pietro, and signora violante were at the table, they began talking of their purpose of sending me away, as the franceschini had already dismissed me from service. when signora francesca pompilia, who was at the table with the others as i have said above, heard this, she remarked to signor pietro and signora violante: "do you know why they wish to send her away? they believe she wished to censure me because signora beatrice said some days ago that she would take hemp and wipe the tears from her eyes, when she was weeping over the accident that happened to you, mother." then signor pietro spoke up and asked the signori franceschini to keep me in their good graces for eight or ten days more, for if he wished to return to rome with signora violante he would take me with them. and he said he could expect this favour at their hands, as it was the first he had ever asked of them. to this, none of the franceschini replied; but signor guido rose from the table and, approaching me, gave me two very good licks. the others then came up. while he was doing this, the canon, his brother, also gave me some kicks, and his mother struck me and told me to leave at once. as soon as signora violante saw and heard this she took pity on me and exclaimed to the said signori: "where do you wish the poor thing to go now?" and all the franceschini with one accord said to signora violante: "you get out with her, too." and they called her "slut," and other insulting names, so that signora violante went to her room to put on her wraps. the canon drew a sword and ran after her into the room and shut the door. i, fearing that he would inflict some wounds upon signora violante, ran to enter the room and found that the canon had locked himself within. so myself and signor pietro and francesca pompilia began to weep and to cry out for help, thinking that the canon would kill signora violante there inside. and after some little time, i left the house, while the said couple and signora francesca pompilia were still making outcry to the signori franceschini. during all the time i remained in the service of the said signori franceschini at arezzo, as i have said above, i can say of a truth that every morning and evening at the table i served the said signori franceschini, signora francesca pompilia, signor pietro, and signora violante comparini. for the food of all this tableful, the franceschini bought on saturday a sucking lamb, on which they spent, at most, twelve or fourteen _gratie_. then signora beatrice cooked it and divided it out for the entire week. and the head of the lamb she divided up for a relish three times, and for the relish at other times she served separately the lights and intestines. during the days of the week when they ate there was no other sort of meat on the table to satisfy the needs of all the tableful. when he did not buy the lamb on saturday, as i have said, signor guido gave money to joseph, the houseboy, to buy two pounds of beef. signora beatrice herself put this to cook every morning, nor was she willing for the rest to meddle with it, and they ate therefrom at the table and carved for the evening meal. and because this meat was so tough that signor pietro could not eat it (as they had not cooked it enough), signor pietro did without eating meat, for the most part, and ate only a little bread, toasted and in bad condition, and a morsel of cheese. thus signor pietro passed the days when they bought beef. on fasting days he ate vegetable soup with a little salted pike, and sometimes a few boiled chestnuts. but always, whether on fasting days or not, the bread was as black as ink, and heavy, and ill-seasoned. then the wine which served for the table was but a single flask; and as soon as the wine was poured into this, signora beatrice made me put in as much more of water. and so i made out to fill the wine flask, half of it being water, and very often there was more water than wine. this flask she put on the table, and ordinarily it sufficed for all those eating, although at most the flask did not hold more than ½ _foghliette_ [half-pints] according to roman measure. furthermore, i say that, not many days after i had left this service, it was public talk throughout arezzo that signor pietro had gone home about half-past six in the evening and had found the street door shut so that he could not open it, and he was obliged to knock. when signora violante saw that no one about the house was going to open the door, she herself went downstairs to do so, but the door was locked with a key. and although she called signor guido and others who were in the house, yet no one stirred to go and open it. therefore signor pietro went to sleep at the inn, and in the morning returned to see signora violante and signora francesca pompilia. it was likewise said throughout arezzo that when signor pietro complained at having been locked out of the house by the canon, and when both signor pietro and signora violante reproached them bitterly about it, a new quarrel arose among them, and because of it both the signori comparini were driven out of the house. signora violante was received at the home of signor doctor borri, where she dined that evening and spent the night. and signor pietro went to the inn to dine and sleep. when i heard that, i went to the house of signor borri to see signora violante, but was not admitted. and the wife of signor borri told me to go and tend to my own affairs. for she did not wish the franceschini, who lived opposite, to perceive that i had gone there to see signora violante, as some disturbance might arise therefrom. then the next morning i went to the inn, where i had been told signora violante had gone to find signor pietro, but i did not find either of them, and was told by the host that they had gone out. so, not knowing where to find them, i returned to the home of signora maddelena albergotti, where i was staying. and i heard afterwards that both signor pietro and signora violante had returned to the inn, where they had breakfasted. then by the interposition of the governor of arezzo they were reconciled with the franceschini, and they returned indeed to the house of the latter. i heard also that the franceschini continued to maltreat and insult the said couple, as they had continually done while i was in their service. therefore they were finally obliged to leave arezzo and go back to rome. all the abovesaid matters i know from having seen and heard the ill-treatment, which the franceschini inflicted upon the comparini and the insults which they offered them and signora francesca pompilia; and likewise from having heard them talked about publicly throughout arezzo, where it is known to every one and is notorious, and where there is public talk and rumour about it. _no. ._--_various attestations as to francesca's recourse to the bishop and governor because of the cruelty of her husband and relatives._ _june , ._ to whomsoever it may concern: we, the undersigned, attest as true: that signora francesca pompilia comparini, wife of signor guido franceschini, has many and many a time fled from home and hastened now to monsignor the bishop, and again to the governor, and also to the neighbours, because of the continual scolding and ill-treatment which she has suffered at the hands of count guido her husband, signora beatrice her mother-in-law, and the signor canon girolamo her brother-in-law. we know this from having met her when she was fleeing as above, and from the public talk and notoriety of it throughout the city of arezzo. in pledge of which, have we signed the present attestation with our own hands this abovesaid day and year, etc. i, canon alessandro tortelli, affirm the truth to be as abovesaid, and in pledge thereto have signed with my own hand. i, marco romano, affirm the truth to be as abovesaid, and in pledge, etc., with my own hand. i, antonio francesco arcangeli, affirm the truth to be as is contained above, with my own hand. i, cammillo lombardi, affirm as is contained above, with my own hand. i, francesco jacopo conti of bissignano, affirm as is contained above, and in pledge, etc., with my own hand. i, urbano antonio romano, a priest of arezzo, and at present curate of the parish church of san adriano, affirm the truth to be as is contained above, and in pledge thereto have subscribed with my own hand. then follows the identification of the handwriting in due form, etc. _extract from a letter written by d. tommaso romani, uncle of guido franceschini, to pietro comparini in rome._ most illustrious sir, my most honoured master: i can not do less, etc., departure, she has been little like the signora francesca, etc.; she fled from home, and went into san antonio. and thither ran also signor guido, the canon, and beatrice, etc., in order that she might come back, and in that belief the signora francesca returned home, etc. yesterday, signora francesca and my sister were in the duomo at sermon. at its close, while she was going away and was near the gate of monsignore, francesca fled into the palace, which is very near by. this was about seven o'clock in the evening, and there was a fine row in the palace, etc. _extract from another letter written by bartholomeo albergotti, a gentleman, to pietro comparini._ most illustrious signor and most cherished master: at my return, etc., the signora, his wife, has been melancholy, and two evenings after your departure, she made a big disturbance, because she did not wish to go and sleep with signor guido her husband, etc. the day before palm sunday, the signora went, etc., to preaching, etc., and in leaving there, she rushed into the palace of the bishop, etc. she took her station at the head of the stairs and stayed there until half past six in the evening; and neither signora beatrice nor signor guido were able to make her return home. yet the bishop did not give her an audience, but his secretary hastened thither and urged signor guido and signora beatrice not to scold the signora his wife, etc. and after quite enough of such disputes, they took her back home, etc. _no._ .--_deposition of francesca as to the letters asserted to have been written by her to abate franceschini, and previously outlined by her husband; recorded in the prosecution brought for her pretended flight._ _march_ , [for may.] francesca comparini, when under oath, etc., when questioned whether she had ever sent any letter to abate franceschini here in the city, while she lived in arezzo, replied: while i was in arezzo i wrote at the instance of my husband, to my brother-in-law abate franceschini here in rome; but as i did not know how to write, my husband formed the letters with a pencil and then he made me trace it with a pen and ink it with my own hand. and he told me that his brother had taken pleasure in receiving such a letter of mine, written by myself. this happened two or three times. when questioned whether, if she should see one of the letters written as is told above, and sent to the city to the same abate franceschini, she would recognise it, etc. she replied: if your honour would cause me to see one of the letters written by me, as above, and sent to abate franceschini, i should recognise it very well. and when at my command the letter was shown to her, about which there was discussion in the prosecution, and which begins _carissimo cognato sono con questa_, and ends, etc., _arezzo_ _giugnio_ , _affetionatissima serva, e cognata francesca comparini ne franceschini_. she responded: i have seen and have examined carefully this letter shown me by the order of your honour, which begins _carissimo signor cognato sono con questa_, etc., and ends _francesca comparini, ne franceschini_, and having looked at it, i think, but cannot swear to it as the truth, that this is one of the letters written by me to my brother-in-law, abate franceschini, in conformity [to my husband's wishes] as is said above. _no_. .--_the tenor of the letter written as above to abate franceschini._ dearest brother-in-law: i wish by this letter to pay my respects to you, and to thank you for your efforts in placing me in this home, where, far removed from my parents, i live now a tranquil life and enjoy perfect safety, not having them around me. for they grieved me night and day with their perverse commands, which were against the law, both human and divine: that i should not love signor guido, my husband, and that i should flee by night from his couch. at the same time they made me tell him that i had no congeniality with him and that he was not my husband because i have no children by him. they also caused me to run away often to the bishop without any reason whatever, and made me tell the bishop that i wished to be divorced from signor guido. and for the purpose of stirring up great discord in the home, my mother told the bishop, and signor guido, and then the entire town, that the canon my brother-in-law had solicited me dishonourably, a thing that had never been thought of by him. they urged me to continue these evil counsels, which were far from right and far from the submission due to my husband. and they left me at their departure their express command, by my obligation to obey them, that i should kill my husband, give poison to my brothers-in-law and my mother-in-law, burn the house and break the vases and other things, in order that in the eyes of the world it might not appear after their departure that it was they who had counselled me to commit so many crimes. and finally at their departure, they left me, as a parting command, that i should choose for myself a young man to my taste, and with him should run away to rome, and many other matters, which i omit for blushing. now that i have not her at hand who stirred up my mind, i enjoy the quiet of paradise, and know that my parents were thus directing me to a precipice, because of their own rage. therefore, now that i see in their true light these deeds proposed by the command of my parents, i pray for pardon from god, from yourself, and from all the world. for i wish to be a good christian and a good wife to signor guido, who has many times chidden me in a loving manner, saying that some day i would thank him for the reproofs he gave me. and these evil counsels which my parents have given, i have now made known, and i acknowledge myself your most affectionate servant and sister, francesca comparini _ne_ franceschini. arezzo, _june , _. outside directed to abate paolo franceschini, rome. [the deposition of pompilia is translated pp. - in its completer form as given in the summary for the defence. the only additional fact in this version is the date of the affidavit, monday, may , . she had been arrested at castelnuovo, may .] _no. _.--_attestation of priests and other persons, worthy to be accepted in all respects; who gave francesca, assistance even till her death; they speak of her honesty, and her declaration that she had never violated her conjugal faith_. i, the undersigned, barefooted augustinian priest, pledge my faith that inasmuch as i was present, helping signora francesca comparini from the first instant of her pitiable case, even to the very end of her life, i say and attest on my priestly oath, in the presence of the god who must judge me, that to my own confusion i have discovered and marvelled at an innocent and saintly conscience in that ever-blessed child. during the four days she survived, when exhorted by me to pardon her husband, she replied with tears in her eyes and with a placid and compassionate voice: "may jesus pardon him, as i have already done with all my heart." but what is more to be wondered at is that, although she suffered great pain, i never heard her speak an offensive or impatient word, nor show the slightest outward vexation either toward god or those near by. but ever submissive to the divine will, she said: "may god have pity on me," in such a way, indeed, as would have been incompatible with a soul that was not at one with god. to such an union one does not attain in a moment, but rather by the habit of years. i say further that i have always seen her self-restrained, and especially during medical treatment. on these occasions, if her habit of life had not been good, she would not have minded certain details around her with a modesty well-noted and marvelled at by me; nor otherwise could a young girl have been in the presence of so many men with such modesty and calm as that in which the blessed child remained while dying. and you may well believe what the holy spirit speaks by the mouth of the evangelist, in the words of st. matthew, chapter : "an evil tree cannot bring forth good fruit." note that he says "cannot," and not "does not"; that is, making it impossible to infer the ability to do perfect deeds when oneself is imperfect and tainted with vice. you should therefore say that this girl was all goodness and modesty, since with all ease and all gladness she performed virtuous and modest deeds even at the very end of her life. moreover she has died with strong love for god, with great composure, with all the sacred sacraments of the church, and with the admiration of all bystanders, who blessed her as a saint. i do not say more lest i be taxed with partiality. i know very well that god alone is the searcher of hearts, but i also know that from the abundance of the heart the mouth speaks; and that my great st. augustine says: "as the life, so its end." therefore, having noted in that ever blessed child saintly words, virtuous deeds, most modest acts, and the death of a soul in great fear of god, for the relief of my conscience i am compelled to say, and cannot do otherwise, that necessarily she has ever been a good, modest, and honourable girl, etc. this tenth of january, , i, fra celestino angelo of st. anna, barefooted augustinian, affirm as i have said above, with my own hand. _another attestation as above._ we, the undersigned, being interrogated for the truth, have made full and unquestioned statement on our oath, that we were present and assisted at the last illness from which francesca pompilia, wife of guido franceschini, died. she was often asked by her confessors and other persons whether she had committed any offence against the said guido, her husband, whereby she might have given him occasion to maltreat her in such a manner as to cause her death. and she always responded that she had never committed any offence against him, but had always lived with all chastity and modesty. and this we know from having been present during the said suffering, and from having heard all these questions and responses while we were giving her medical treatment, or otherwise assisting, and from hearing her respond to these questions, as above, during the four days while she was suffering from her wounds, as we have seen and heard her; and we have witnessed her dying the death of a saint. in pledge thereto we have signed this present attestation with our own hands here in rome this tenth of january, . i, nicolo constantio, etc., who assisted at the treatment of the said francesca pompilia during four days, attest as above, etc. i, fra celestino angelo of st. anna, barefooted augustinian, say that i was present from the first instant of the case, even to the end of her life, and was always ministering to her. she ever said, "may god pardon him in heaven as i pardon him on earth; but as for the matter they charge me with, and for which they have slain me, i am utterly innocent." in proof whereof she said that god should not pardon her that sin, because she had never committed it. she died as an innocent martyr in the presence of another priest, to the edification of all the bystanders, as i have affirmed above with my own hand. i, placido sardi, a priest, affirm with my own hand as the abovesaid father, fra celestino, has declared, having been present as above. i, the marquis nicolo gregorio, affirm as above with my own hand. i, the undersigned, affirm what is contained in the abovewritten statement, as well as in the attestation of the reverend father celestino of jesu and maria. i assisted the abovesaid signora francesca pompilia from the first, having picked her up from the earth where she lay in utter weakness because of her wounds. she had her head upon the legs of signor pietro comparini, who was already dead. she made confession in my arms to the principal of the greek college, because she could neither rise up nor lie down. and from that hour i never left her, but always ministered to her even unto her death. she was the most exemplary and edifying christian i have ever seen. for i saw her resigned to the divine will, and she always relied upon her own innocence, etc. i, giuseppe d'andillo, with my own hand. i, the undersigned, attest and affirm what is contained in all the said affidavits, from having assisted the said francesca pompilia, etc. dionysio godyn, with my own hand. i, luca corsi, affirm with my own hand as is contained in all the said attestations, from having assisted day and night as long as the malady of the former francesca pompilia continued, and from having heard as above. i, giovanni battista guitens, apothecary, who have assisted at the treatment and care of the said francesca pompilia, affirm with my own hand as is contained in all the above affidavits and attestations, from having assisted continually throughout a night and a day at the malady of the same. i, giovanni battista mucha, the boy of the said giovanni battista guitens, apothecary, affirm with my own hand as is contained above in the said attestation, from having assisted with the former francesca pompilia. full and unquestionable statement is given by me the here undersigned, abate liberato barberito, doctor of theology, that, as i was summoned to assist at the death of the said signora francesca comparini, i often noticed, and especially during an entire night, that the above-named defendant suffered the pains of her wounds with christian resignation, and condoned with superhuman generosity the offences of the one who had caused her innocent death with so many wounds. i also observed during the night the tenderness of the conscience of the above-named. for she passed it in showing the unwavering feelings of an heroic and christian perfection. and this so much so that i can attest that during the experience i have had, having been four years vicar in the cure of monsignor, the bishop of monopoli, of blessed memory, i have never observed the dying with like sentiments. and this is all the more so in an evil, caused so violently by another. therefore in pledge, etc. rome, this tenth day of january . i, abate di liberato barberito, affirm as above, etc. [file-title of pamphlet .] _by the most illustrious and most reverend lord governor of the city in criminal cases:_ _roman murder-case._ _in behalf of the fisc, against_ count guido franceschini and his associates_. _memorial of fact and law of the lord procurator general of the fisc._. _at rome, in the type of the reverend apostolic church, ._ romana excidii [pamphlet .] most illustrious and most reverend lord: the deplorable slaughter of the entire comparini family, which occurred in this dear city of ours on the second night of the current month of january, and the shedding of their blood, cries out from earth to god for vengeance upon the criminals. and in order that we may fulfil the obligations of the office we are occupying, we have paid down the price of toil to narrate here with faithful pen the series of events. from this, my lords judges may readily see what laws may be applicable for a decision as to this cause and for the punishment of the delinquents for the same deed, etc., and so barbosa says in his axioms in jurisprudence, axiom , no. : "just as from the deed the law takes its rise, so from the deed the law dies." the series of facts, therefore, is as follows: guido franceschini of the city of arezzo, married francesca comparini, for whom, by pietro and violante comparini, there were promised as dowry, among other matters, certain properties subject to a reversionary interest. for they had brought this same francesca up in their home as their own daughter, and as such they married her. then, as the aforesaid pietro and violante had no other children, they left their home in the city to go and live in the home of franceschini at arezzo. there, for some time, they continued to live together in peace; but, as often happens among friends and relatives, contentions and quarrellings arose. on account of these, the aforesaid pietro and violante left that home and the city of arezzo, and went back to rome. in the meantime, as the flame of this enkindled hatred increased, a lawsuit was instituted as to the dowry once promised, but now denied by pietro, on the pretext that francesca was not indeed the daughter of the same pietro and violante, but that, after a pretence of her birth had been made, she had been received and brought up by them. and for this reason the said guido and francesca could not hope for the inheritance of the properties under the reversionary interest. but although franceschini gained a favourable judgment on this point, yet when appeal had been made on behalf of pietro comparini, francesca declared that she was ill-treated in the home of her husband by himself, and therefore desired to leave that home. accordingly with the aid and companionship of canon caponsacchi, a relative of the said franceschini, as is supposed, she ran away. but franceschini had notice of his wife's flight and, following her up, he overtook her at the tavern of castelnuovo. there he went to the governor of that place and saw to effecting the capture of his wife and the canon, as indeed followed. then the quarrel was continued. a criminal suit was brought in this tribunal of the governor of the city; the process of action was arranged, and the counsel on both sides was often heard, both by word of mouth and in writing. at last it was decided that owing to lack of proof of adultery the said canon should be banished to civita vecchia and francesca should be held in safekeeping. but because the comparini claimed that the furnishing of food in the safekeeping was the duty of franceschini, and the latter declared it lay with comparini, the most illustrious lord governor, having first secured the consent of abate paolo, the brother of guido and his representative in the case, assigned the home of the comparini to francesca as a safe and secure prison under security. while these contests were still pending, both in the civil and criminal cases, as well as in that for divorce brought by francesca, the wife, this same franceschini schemed to take vengeance upon the abovesaid. for the execution of this criminal purpose he brought together domenico gambassini of florence, alessandro baldeschi of the region of castello, francesco pasquini antonii of the marquisate of monte acuto, and blasio agostinelli of the town of popolo, and dwelling at the villa quarata. he provided them with swords and dagger, prohibited by the bull of alexander viii., and entered the city in company with the aforesaid men. approaching the home of the comparini, at the first hour of the night, he secured the opening of the door to himself under the pretence of bringing a letter, sent to violante by the said canon caponsacchi, then staying at civita vecchia. as soon as the door of the home was opened by the said violante, the aforesaid guido and his companions immediately set upon her. she was cut to pieces with their swords and immediately fell dead. pietro likewise was cut down and died. francesca, however, tried to hide under a bed, but was found and wounded in many places. then, as if god granted her the favour, she was not left utterly dead, though after a few days she also passed away; and thus she could reveal this monstrous crime. as soon as my lord governor had notice of this, with most vigilant attention, he saw that the malefactors were pursued beyond the city. accordingly that same night, they were discovered in the tavern at merluccia with firearms and illegal swords, still bloody, and were taken back to prison. then, when a case had been made against them, they were examined as to the crime. some of them indeed confessed it, and although the others made denial of the management and knowledge of the killing of the entire family, yet against them there are most urgent presumptions of the knowledge and management abovesaid. furthermore, from the same prosecution the gravest proofs have resulted, such as can be but slightly attacked and controverted by the defence. hence, when this cause may be presented to receive judgment, we believe that no foundation can afford defence for the criminals to escape the capital penalty, so far as they have confessed their crime, or can release those who have denied it from the rigorous torture of the vigil. for what if the defence do strongly argue the question as to whether a husband who kills an adulterous wife, not immediately and when found in adultery, but after an interval, ought to be excused from the ordinary penalty of the _lex cornelia de sicariis_? some authorities indeed give an affirmative opinion for the excuse of the husband, as is to be seen in giurba. [citations.] yet all of these authorities for mitigating the penalty upon a husband who kills his wife after an interval are moved by this reason: that since the sense of injured honour always oppresses the heart, it is difficult to restrain just resentment; for this reason the defence of the honour is said to be immediate when done as quickly as possible. but there are indeed many other authorities who stand by the negative, asserting that a husband who kills his wife, otherwise than when taken in adultery and in acts of passion, should be punished with the ordinary penalty. [citations.] rainaldi [citation] says this opinion is the truer and the more advantageous to the state, nor should one depart from it in giving judgment. sanzio says that it was often adjudged in this senate that a husband was not excused by adultery legitimately proved, if he killed his wife after an interval; and for this reason, because formerly, according to the law of romulus, a husband could kill his wife, but the _lex julia_ permitted him to kill only the vile adulterer, as matthæus proves. [citation.] but in this our present show of fact we believe we are dealing with a matter outside of the difficulty of this proposed question. for the authorities cited above for the contrary opinion hold good, and should be understood to do so, whenever the contention is about a husband who has killed his wife without excess of law and with no concurring circumstances and aggravating qualities, and when moved only by just grievance. but it is otherwise when, as in our case, excess and contempt of law is present and aggravating circumstances and qualities concur. laurentius matthæus [citation] testifies that, according to common practice, such a distinction has been followed out. and after he had affirmed that a husband should be excused from the ordinary penalty and be punished more mildly, he adds: "for these reasons, it is the common practice to weigh the effect of the grievance and to punish only the excess; so that if the suspicion of guile in the manner of killing is present (as he considers any circumstance which tends toward treachery) the penalty is aggravated." the aggravating circumstances which concur in our case are indeed many, and they are so grave that any one of them is enough reason for imposing the death penalty or for qualifying the crime. the first of these is the assembling of armed men; for according to decrees of the governor of this city, the penalty of death and of the confiscation of goods is inflicted upon the one assembling the men; and this is true even if those assembled are but four, as is read in chapter of the same banns. this circumstance and quality cannot be evaded on the authority of certain jurists who assert that it is permissible for a husband to kill his wife, even by means of men thus brought together. for the said authorities speak, and should be understood, in a case in which a husband may kill with impunity an adulterer and his own wife in the very act of adultery, or in the home of the husband. but it is otherwise if she is killed after an interval, or outside of the home of her husband; according to what is given. [citation.] or these matters might hold good if in no other way he could kill the adulterer and his wife. so think all authorities who can be adduced in favour of the husband. this cannot be said in our case since franceschini, while following his wife with firearms, could have taken vengeance at the inn of castelnuovo. but he had recourse to the judge, and chose the legal way of punishing his wife and the canon with whom she fled. or these claims would hold good if he had assembled a smaller number of men, whereby the crime of conventicle would not have been established. and this is the more strongly to be held because we are not concerned with a deed that is unpunishable, and permissible by law, as i have said. nor do we believe that the defence can make a claim that the husband may kill an adulterous wife after an interval with impunity; for all the authorities who can be adduced in favour of the husband free him indeed from the ordinary penalty, but not from an extraordinary penalty, as those adduced by us above in § _hinc cum causa_ can be seen to hold. if therefore, in our case, the husband committed a crime punishable in itself, how could he assemble a number of men forming a conventicle prohibited by the banns, without incurring the penalty threatened by them? the second quality and circumstance is the carrying of arms contrary to the specification of the constitution of alexander viii., which is extended to the whole ecclesiastical state. still less can the authority of jurists be alleged in excuse from this threatened penalty, if the husband kill an adulterer and the wife with prohibited arms. for aside from the response given by us in the explanation of the first circumstance of assembling and of conventicle (namely that these authorities hold good and should be understood to apply only in cases permitted by law, and therefore unpunishable), we say still further that they have very little application as regards the arms we are discussing; since the said constitution prohibits not merely the carrying of such arms, but even their retention, manufacture, or introduction into the city and the ecclesiastical state, under the penalty of rebellion and criminal insult to the majesty of the law. and so far as we are acquainted with such cases as are permitted by law, the authority of these jurists should be understood to hold good concerning arms, the carrying of which is indeed prohibited, but not the retention and introduction under any pretext whatsoever, even the pretext of justice; as is included in this same constitution § , where we read: "or to carry them on any pretext whatever, whether of military service or of the execution of justice, and still less to keep them in one's home or elsewhere." and in § _ad haec_ it prohibits even the introduction of them: "the retention of them at home, in storehouses, and elsewhere, their introduction into the ecclesiastical state, and their manufacture." if therefore the retention and introduction of such arms is prohibited, even when on the pretext of executing justice, ridiculous indeed would be franceschini's pretence that he could approach the city and the home of his wife with such arms to vindicate after an interval this pretended offence of honour. this is the more certain as the crime concerning such arms is grave and of itself is punished with the capital penalty, as we have proved. in this case, when the crime actually follows, if the penalty for carrying the arms is greater than for the crime itself, the penalty for the graver offence is held to apply, and includes the lighter. [citations.] the third circumstance is that franceschini and the aforesaid men committed the murders in the very home and dwelling-place of the comparini; because homicide is always said to be qualified when it is committed in the home of the one slain; since the home should be a safe refuge for its master, etc. then also franceschini entered with changed garb; in which case the murder is said to be committed _ex insidiis_. [citations.] the fourth quality and circumstance is that the said francesca was under the power of the judge, since the home, as we have said in our narrative of fact, was assigned to her under bond to keep it as a safe and secure prison. and hence she was under the protection of the court. [citations.] and this is especially true when arguing in favour of the one who is under protection of the court, whatever may be said when arguing to his prejudice. and therefore the law holds that one under the protection of the court cannot be killed under less penalty than the death [of the assassin]. [citations.] but all debate seems to cease since it is proven in the process that the said franceschini approached the said home with his company of men with the thought and intent to kill not merely francesca, his wife, but also pietro and violante. these, as he himself acknowledges, he hated with a deadly hatred, because of the suit they had brought and because they had urged francesca to poison her husband and her brother-in-law, and had kept his wife in their home so that still further, in the continuation of the adultery, his honour was offended. but aside from this, as we have said above, francesca was placed in the said home by the authority of the judge with the consent of the brother of this same husband, and so the question does not enter as to whether a husband may lawfully kill the relatives, friends, and servants of his adulterous wife, even if he does suspect them of affording their leave or assent to the wife committing adultery; since the special rights and privileges conceded to the husband should not be multiplied against the wife, and be given greater scope, but rather should be strictly interpreted. [citation.] this holds good not merely when one is arguing about the prejudice of a third party, but concerning one's sole prejudice. [citation.] in our very circumstances we read that the permission cannot be passed from person to person. [citation.] yet we can more truly declare that such an assertion of adultery on the part of franceschini is calumniously false; for, in the very face of death, francesca protested, to the very damnation of her soul, that she had given no offence to her husband's honour. this protestation is the more to be believed since those about to die are not presumed to be unmindful of their eternal salvation. [citation.] the other causes adduced by franceschini himself, so far as they are true, can indeed prove hatred and enmity existing between himself and the couple, which would tend in that direction and so would serve to prove in him a cause for their premeditated murder. but this is not sufficient to excuse him from the ordinary penalty of death, which premeditated homicide altogether demands. [citations.] and it is for this reason, because the laws prohibit private vengeance (that is, vengeance which those without public office usurp to themselves because of their hatred, by killing or otherwise injuring men). [citations.] raynaldus affirms that in premeditated murder the ordinary penalty is inflicted not merely upon the slayer himself, but also upon all others who aid and give help, or concur in committing the murder by their help or council. [citations.] francesco gambi, _procurator general of the fisc and of the reverend apostolic chamber_. [file-title of pamphlet .] _by the most illustrious and most reverend lord governor in criminal cases: roman murder-case, with qualifying circumstance._ _for the fisc, against count guido franceschini and his associates._ _memorial of the law in the case by the advocate of the fisc._ _at rome, in the type of the reverend apostolic chamber_, . romana homicidii cum qualitate [pamphlet .] most illustrious and most reverend lord governor: since the chief defence of count franceschini, the accused, as we have heard, consists in the pretended plea of injured honour, by which he was moved to crime, it is the office of the fisc to disclose the lack of foundation for this plea, in order that this atrocious and enormous crime may be punished with the due penalty. therefore i assume that we ought to examine the foundations on which the asserted plea of injured honour may rest; namely the flight of the unfortunate wife from the home of her husband in company with canon caponsacchi, with whom she was taken at the inn of castelnuovo, and the pretended love-letters which were put forward in the prosecution of pompilia for the said flight and departure. the pretended dishonesty of the wife is drawn from these two; but along with them other proofs were brought together in the said prosecution; the latter, however, are either altogether stupid or equivocal, or else unproven. this may be inferred from the dismission of the said francesca, his wife, merely with the precaution of keeping her home as a prison and of the canon with a three years' banishment to civita vecchia. such action shows that in this same prosecution there was found by the fisc no legitimate proof of dishonesty and of the pretended violation of conjugal faith, which the husband had charged against her. and indeed, from the defences then made and even from the trial itself, a very just cause has clearly appeared, which forced the luckless girl to flee from the home of her husband and to go back to her own home, there to live safely and quietly with her parents. notorious indeed are the altercations which, on account of the parsimony of the franceschini home, straightway arose between the parents of the wretched girl on the one hand, and the accused, his mother, and his brothers on the other hand. the former in vain bewailed the fact that they had been deceived by the show of no small opulence, on account of the false statement of an annual income of scudi, which was afterward shown to have no existence. indeed, while they stayed in the home of the accused husband in arezzo, they were so badly treated by himself and his relatives that after a few months they were obliged to leave it and return to the city. during the whole time they lived there, contentions and reproaches throve continually among them. the comparini were indeed excited with just indignation by the deception they had suffered. this is evident from the letters of abate paolo franceschini, which presuppose these troubles and which were considered for the defence by the procurator of the poor. these prove that hostility of mind had even then been conceived against the unfortunate parents, especially the one written march , where we read: "i write again to you that i do not wish to imitate him in his manner of writing, not being of his mind to sow broadcast in letters such words as would merit response by deeds and not by words. and these are so offensive that i have kept them for his reproof and mortification." and further on he says: "so that if you give us trouble, which i will never believe, you yourself will not be exempt therefrom." but sufficient proof results from the letters, as the following advise. [citations.] and although these letters do not make clear the nature of their altercations, yet some of them more than prove the reproaches had so increased that their bitterness grew into hatred as is evident from the letter of february , , where we read: "but hearing from the one side or other that the bitterness between them, not to say the hatred, is increasing." it would be all too easy for the accused and the abate, his brother, to prove, by showing letters written to him, that the reproaches were unjust and were occasioned by the comparini themselves. this is apparent from the tenor of the said letter, where we read: "because i feel that the enemy of god has put strife among them, it is improper that i should fulfil my duty toward you of a reply." but since the franceschini did not show such letters, the presumptive truth of these same complaints and of this cause of complaint and altercation is strongly against the ones thus concealing them. in such circumstances the roman court thus affirmed. [citations.] but the truth of the charge of ill-treatment toward the parents, whom he was obliged by the dowry contract to provide with food, is also to be drawn from the deposition of a servant, as given in the summary, no. . and since this would excite the pity of any who read, it becomes all the clearer that, by such very ill-treatment of her parents, the mind of the wretched wife was greatly exasperated; for she kept grieving in vain at seeing them thus troubled; yes, and she was even prohibited from grieving. and any one may know that the return of her parents to the city would indeed disturb with a considerable and very just grief this wretched child who was not more than fifteen years old. for she was destitute of all aid, and was left exposed to her husband's severity, because of which she daily feared that she was in peril of her life. in vain did she have recourse to the reverend bishop and to the governor, summary, no. . in vain was the interposition of certain noblemen tried; which had proved utterly useless, as is evident from the letter of march , where we read: "but what remedy can i give you, when so many gentlemen friendly to both parties have interfered to settle the troubles and it has not turned out well?" she might indeed think that no other remedy was left her than to flee from the abode of her husband and to seek again her father's home. as therefore she fled to escape deadly peril, her flight can afford no proof of dishonesty nor of the violation of conjugal faith; for it is attributable to a lawful rather than to a criminal cause. [citations.] but there was another urgent cause for her eagerly desiring to seek her father's hearth, namely the ill-health of her father. she speaks of this in the letter which mentioned that she cannot look for the company of gregorio guillichini, and that this task had to be remitted to the canon [caponsacchi]. hence we can well infer that she was arranging for the flight for legitimate reasons. no reliance whatever can be placed in the letter written by this same wife to abate franceschini. in that she thanks him for having joined her in marriage with the accused, his brother. and she also acknowledges therein that, since the departure of her parents, she was living a life of utter tranquillity; because their evil persuasion, which was alienating her from her husband, had ceased. she also reveals a very base plan that had been proposed to her, namely, to destroy the entire household. now the wife in her sworn statement frankly confesses that she wrote this letter to appease her husband, and that he had marked the characters, which she had afterwards traced with a pen. this statement is found in an extract from her sworn testimony as given in our summary, no. . and a mere reading of the said letter so thrills one with horror that it is incredible that the luckless girl could have written such matters to the injury and detraction of her own parents, unless she had been compelled thereto by fear of her husband. for this reason the same letter is given in our summary, no. . but even just ground of fear, because of which the luckless girl was moved to flee, has come to light, namely, the lawsuit brought by her father against the accused for the nullification of the dowry contract. this contract had been made on false grounds; for pietro had believed that he was promising the dowry to his own daughter, but then, from a confession made by the mother, he had found out that she was none such and that violante had made pretence of giving birth to the child for the purpose of deceiving her husband and barring his creditors. since pietro had assigned all his property as dowry (and indeed it was of considerable value when we consider the quality of the persons concerned) he soon raised a dispute about it. and we may well fear that very grave and even deadly hatred arose therefrom. thereby the conjugal peace, which had been disturbed by long-continued altercation, was utterly destroyed by recrudescent hatred. for a lawsuit as to a considerable amount of money, much more as to an entire property, would produce this effect, as daily experience well teaches us and as grammaticus and others assert. [citations.] such just fear should be well considered by a prudent judge, who will take into account the circumstance of the persons and of the time. [citation.] in our case it may be absolutely affirmed that these matters should be so considered, inasmuch as not merely a girl of tender age (as was the unfortunate wife, who was destitute of all aid and exposed to the severity of the husband, who had sought her life with a pistol and had threatened her with death on trivial suspicions), but even a woman of greatest fortitude would be unable to bear being exposed to such constant risk of her life and would see the necessity of taking care of herself. and whatever the cause, even if it were merely supposititious, it would be enough to excuse her according to the text. [citations.] and canon rainaldi holds, that it is enough if one see the signs or acts of manifest desire, or preparations thereto. how much more excusable and how worthy of pity should francesca be considered, since she had such an urgent and such a well-verified cause for fleeing? mogolon holds that the mere sight of arms, even though the one having them does not use them nor unsheathe them, is just cause for fear. nor can presumption of dishonour and of violated conjugal faith arise from the company of canon caponsacchi, with whom she fled, and for which flight he was condemned to three years' banishment in civita vecchia. for the luckless girl was destitute of all aid, and the demands of her age, of her sex, and of her station in life, did not admit of her undertaking so perilous a journey either alone, or in company with any baseborn woman. for then, in escaping dangers at home, she might incautiously expose herself to even graver perils; as might have happened if while alone she had been overtaken by her husband in the journey. nor could she find any safer companion than this very canon, who was bound by friendship to the canon conti. and the latter, who was a familiar friend and blood-relative of the accused, although he had great pity upon her condition, judged it safer for her to flee with caponsacchi, whom he believed to be apt and far-seeing to bring about the desired end. otherwise she would have undertaken this flight with even greater risk. therefore this necessary and prudent choice of the lesser evil excludes all suspicion of pretended dishonour. [citations.] this suspicion is also excluded by the manner in which the flight was put into effect, namely in hurrying to the city by the direct route and with the greatest possible speed. for if the unfortunate girl had fled for the purpose of satisfying her lust with the same lover, the canon caponsacchi (as was charged elsewhere and as is repeated now even more bitterly to prove the plea of injured honour), she would either have delayed somewhere out of the public highways, where she could not be seized by the accused, or she would not have approached the city with such great speed. she would have done neither of these, unless she were making the journey for the purpose of seeking again her father's hearth, where she hoped to find security for her life and her honour. it would be far too imprudent a plan for a lover to take a wife from the home of her husband to some other place where he could not possibly satisfy his lust. this improbability alone would be enough to prove the truth of the cause given by the wife in her affidavit--namely, that she had fled to avoid the deadly peril in which she feared she was placed, and that she might return to her father's hearth. the canon also gave her his aid and companionship out of mere pity, and her honour was kept entirely untouched. the probabilities are always to be very much observed in arguing about a crime, or in excluding it, as the following hold. [citations.] still less firmly established is the other ground for the asserted plea of injured honour, which has been offered elsewhere by the accused on the basis of the asserted love-letters. these letters, it was pretended, had been written in part by that most wretched girl to the canon, and in part by the canon himself. all these, it was claimed, had been found in the privy of the inn at castelnuovo, where they were said to have been cast for the purpose of hiding them. response was indeed then given by the procurator of the poor that the identity of the handwriting was unproved and uncertain; for the letters did not show to whom they were directed. and these responses were indeed admitted, since no punishment was inflicted upon francesca, and she was simply dismissed with the precaution of keeping her home as a prison. and even though these letters, when we investigate their hearing, seem to give proof of excessive goodwill, yet francesca could have made pretence of this for the purpose of winning over the canon, who was reluctant (as she herself acknowledges in her affidavit), to afford her aid by giving her his company back to the city in the execution of her premeditated flight. it is indeed quite evident that the letters were prepared for this purpose. (summary, no. .) and therefore this wretched girl, who was destitute of all aid and was placed in imminent risk of her life, should be judged worthy of all pity, if with gentle and even with loving words she tried to entice the canon, whom she believed was well suited to afford her aid. nor can stronger proof of violated modesty be drawn from these letters written for the purpose of the flight than from the flight itself. nor is it a new thing for the most chaste of women to use similar arts sometimes for quite permissible ends. in the sacred scriptures we read that judith did so to deceive holofernes, for the purpose of freeing her country. this luckless girl could therefore do so without any mark of dishonour, for the purpose of escaping deadly peril. we may speak still further of her confidence in her own continence as well as in the integrity of the canon. concerning this, a certain witness, examined by the fisc in the said prosecution at the instance of count guido, who was then present, testifies to hearing from gregorio guillichini (likewise a relative of the accused) as follows: "signor gregorio then added that the signor canon was going there for a good reason, and that therefore signora francesca had desired to go to rome. and he told me also that no ill could arise from it, because there was not the slightest sin between them." the deposition of this witness, which is directly contrary to the party who had brought her into court, fully proves our point as the following hold. [citations.] and therefore, since the luckless girl can be suspected of no evil from her association with canon caponsacchi, and since she had no other help more suitable for carrying out her plan, her dealings with him by letter ought to be excused as ordered to this end, even though we may read certain loving expressions in them. the latter, indeed, should be considered rather as courtesies adapted to winning his goodwill, and they should always be interpreted according to the thought of the one proffering them. [citations.] still further, there is added the participation of the canon conti, a nobleman and a relative of the accused, who forwarded the attempt. it is incredible that he would have been willing to plot against the honour of guido, but he would merely wish to snatch that wretched girl from imminent death because of his pity of her. and such participation is made clearly evident from the very letters which it is pretended were written by caponsacchi. of lighter weight still are the other proofs of pretended dishonesty; [first] the approach of the canon to the home of the accused at night time, for the purpose of speaking with the wife who was slain; [secondly] the kissing on the journey to rome, concerning which francesco giovanni rossi, driver of the carriage (commonly called calesse) bears witness; and [third] the pretended sleeping together in the same bed at the inn of castelnuovo. as regards the first of these three, there is defect of proof; for it rests upon the word of a single witness only, maria margherita contenti, and she endures the most relevant exception of being a public harlot, and so she alone can prove nothing. [citations.] and since such approaching of the house was ordered to the permissible end of removing the wretched girl from the imminent peril of death, by taking her back to her father's house, it cannot be brought as a proof of illicit commerce. for the mere possibility that it was done for this purpose is enough to oblige us to take it in good part, according to the text. [citations.] this is especially so since the very witness who swears to this approach of the home states, by hearsay from the said gregorio guillichini, that it was to a good end, and that no sin was taking place between the canon and the wife who is now slain. and, as guillichini was better informed, and was indeed a friend and, as i understand, a relative of the accused, this excludes all suspicion to the contrary. with this testimony another deposition seems to agree, namely, that of the canon franceschini, brother of the accused, who when questioned as to whether he knew if any intimacy had existed between canon caponsacchi and francesca, replied: "this we never knew of beforehand; but after the criminal flight the whole town said that there must surely have passed some correspondence between them." his ignorance quite excludes and renders improbable any furtive and illicit approach to the home by the canon caponsacchi. for if the accused had indeed threatened to kill his wife on account of unjust suspicion of caponsacchi, we may well believe that guido himself, his brother, and all the household would have kept guard for her safe keeping with all their might. and so, the said approach to the home, if it had been frequent (as is alleged), or if it had been for an ill end, would have been observed by them. [secondly] under this same defect of proof lies the pretended kissing of each other on the journey. as to this matter only a single witness testifies, whose excessive animus is shown by his assertion, for he asserts that he saw this at night; nor does he give any reason for his seeing it, such as that the moon was shining, or that he could see because some artificial light was dispelling the gloom. as no such reason is given, he deserves no credence, as the following observe. [citations.] another very great improbability is added thereto--namely, that while he was driving the carriage with such velocity that it rather seemed to fly than advance swiftly, he could not have looked back to see such mutual kissing. this improbability likewise takes away from him all right to belief, according to what the following hold. [citations.] but the assertion of that most wretched girl herself is also well suited to exclude all suspicion of her pretended unchastity. this was made by her after she had suffered many severe wounds in the very face of death itself, at the demand of the priests and other persons ministering to her. for, according to their attestation, she asserted that she had never sinned against her conjugal faith and had always conducted herself with all chastity and shame: "we were present and assisted at the last illness from which francesca pompilia, wife of guido franceschini, died. she was often asked by her confessors and other persons whether she had committed any offence against the said guido, her husband, whereby she might have given him occasion to maltreat her in such a manner as to cause her death. and she always responded that she had never committed any offence, but had always lived with all chastity and modesty." and fra celestino angelo of st. anna, of the order of barefooted augustinians, in his testimony, bears even more exact witness to this constant assertion of her innocence, where he writes: "she always said, 'may god pardon him in heaven, as i pardon him on earth, but as for the sin for which they have slain me, i am utterly innocent': in proof whereof she said that god should not pardon her that sin, because she had never committed it." an assertion like this, indeed, given in the very face of death, deserves all credence, since no one is believed to lie at such a time, as the following assert. [citations.] menocchius speaks in these very circumstances of one suspected of heresy, saying that such suspicion is removed if in the hour of death the accused say and protest that he had lived and wished to die and to trust according to what is pleasing to the sacred roman church, etc. [citation.] and decianus cites the opinion of albericus, who declares that by means of an assertion of this kind, made before the cardinals, the memory of pope boniface had been defended, and that this very albericus had in this way defended gian galeazzo visconti of milan. and this is more especially true since all the said witnesses agree that this most wretched girl died with the highest edification of the bystanders, and that she had always shown the deeds of christian perfection, as we find in the said attestations, where we read: "and from having seen her die the death of a saint." and there is another statement of the said father celestino angelo, which infers the innocence of her past life from her conduct just before death. all these matters are given in our summary, no. . but, however rightly the accused might draw some suspicion of his wife's dishonesty from her flight and from these letters, the tenor of which seems to prove them love-letters (which suspicion could excite due anger), yet this would not make excusable such truculent vengeance, taken after so great an interval. for this vengeance was taken, not merely upon his most wretched wife, but also upon her parents, who were entirely off their guard and quite undeserving of such a fate. and these murders were attended with such grave circumstances, aggravating the crime, that he would have to be punished with death even if he had not confessed the murders. for although just anger because of violated conjugal faith usually moderates the penalty for a husband killing his adulterous wife, yet one can no longer argue for total impunity after an opportunity to take vengeance on the adulterer and adulteress has been thrown away. [citations.] but an especial and indispensable requisite is that the wife be taken in adultery, according to the text. [citation.] "for thus it wishes this power to lie with the father, if he take his daughter in her very sin." labeo also approves this, and pomponius writes that she may be killed when taken in very licentiousness, and this is what solon and draco say. [citations.] much more does this hold good in the case of a husband, whose wrath may be kindled much more easily against a wife by sinister and unjust suspicion conceived about her. for the husband is not always accustomed to take good counsel for the wife, which the law presumes that the father does by natural instinct, etc.; and it excuses the father only when he kills his daughter along with her defiler, or inflicts wounds unhesitatingly upon her. and this is so true that it is not enough if the wife be found only in acts that are remote from, or merely preparatory to adultery, as authorities commonly affirm. [citations.] john teitops holds thus, and i think it well to quote his words, since the judges may not have him at hand, and he thus explains the words of the said text: "therefore they argue that acts preparatory to adultery do not suffice, but the obscene commingling of limbs is required." and after citing his authorities, he adds: "and this is more clearly evident from the words of solon as given by lucian, the eunuch," where we read: "unless they lie who say that he was taken in adultery." and then he criticises the opinion of accursius, who asserts that acts preparatory for adultery are enough. and in the second paragraph after this decision is given he asserts that his opinion should be understood to be concerning immediate preparations, and he so explains his decision, where he says: "from the taking of the adulterer alone and naked with her alone and naked, and lying in the same bed, violent and certain suspicion of adultery arises, wherefrom the sentence of divorce may be granted." but the laws adduced (at letters i & j) show that strong suspicion does not indeed suffice. for this sort of discovery is the true taking in the act of adultery. and from a civil case under the said letter, one argues weakly for proof in a criminal cause. for no one can be condemned, much less killed, on suspicions alone in the absence of law. and violent suspicion is not indubitable ground for proof, such as is required in criminal cases. but indeed such suspicion is fallacious, because persons might be found to act thus for the purpose of committing adultery, and yet not actually to have committed the adultery, as gravetta and others say. the accused might indeed have contended merely for the tempering of the penalty if he had killed his fugitive wife in the act of taking her at the inn of castelnuovo in company with canon caponsacchi. but when he neglected to take vengeance with his own hand and preferred to take it by law, he could not then kill her after an interval. this is according to the text [citation], which affirms that one can put off the vengeance from day to day. [citations.] farinacci asserts that it was so held in practice, lest men should be given the opportunity of avenging their own wrongs. and he confutes bertazzolus, who places on the same footing a case of taking in adultery, and says that the wife may be convicted of it provided that there be no doubt of it. nor may the suspicion of the husband, which gave a strong ground for the difference, be unjust or too ready. because just grievance, exciting a wrath which usually disturbs the mind of the husband, is verified by the actual taking of the wife in adultery, or in acts very near to it and not after an interval, although his suspicion may be very strong. and so the laws which excuse a husband because of just and sudden anger cannot be extended to cover vengeance taken after an interval. for in the latter case neither the impetuosity nor the suddenness of the anger is proved, but the murder is said to be committed in cold blood. but if for the purpose of restraining the impetus of raging anger, lest the husband take vengeance on his own authority, he is not excused from the penalty of the _lex cornelia de sicariis_, provided he kill his wife after an interval, how much less excusable will he be if, after choosing the way of public vengeance by imprisoning his wife and her pretended lover, he shall, after a long intervening time, slaughter her and her parents so brutally? it should be added, for increasing his penalty, that as regards the unfortunate parents there was no just cause for killing them unless he wishes to consider as such the lawsuit which they brought for the nullification of the dowry contract because of the detection of her pretended birth. but this cause rather increases the offence to the most atrocious crime of _læsa majestas_, because of the utter security which the pontifical majesty wishes to afford to all litigants in the city. this point is found in the well-known decree of alexander vi. where we read: "the inhumanity and savagery which thirsts for the death of others is horrible and detestable," and in the end we read: "in offence of the jurisdiction of his divine majesty, and to the injury of the apostolic authority." and, "they incur _ipso facto_ the sentence of the crime of _læsa majestas_." and a little later: "and they may always be distrusted in all their good deeds by every one, and may be held as banditti and as infamous and unfit." very worthy of consideration, also, is that other aggravation of this inhuman slaughter, namely, that it was committed in their own home, which ought to be for each person the safest of refuges, according to the text. [citations.] and cicero elegantly says: "what is more sacred, what is more guarded by all religious feeling, than the home of each of our citizens! here are our altars, here are our hearths, here are our household gods, and here the sacred ceremonies of our religion are contained. this refuge is so sacred to all that it would be base for any one to be snatched hence." much more is this true as regards the wretched wife, who was held in that place as a prison, with the approval also of the abate franceschini. and hence the public safekeeping may be said to be violated thereby, and the majesty of the prince wounded, since the same reasoning is observed as regards a true and formal prison, and a prison assigned by the prince, as the following assert. [citations.] finally, we should also consider the aggravation of "prohibited arms," with which the crime was committed. this of itself demands the death penalty, even though the principal crime should otherwise be punished more mildly, as sanfelicius advises, stating that it was so adjudged. [citation.] giovanni battista bottini, _advocate of the fisc and of the apostolic chamber._ [file-title of pamphlet .] _by the most illustrious and most reverend lord governor of the city in criminal cases_: _roman murder-case._ _for count guido franceschini and his associates, prisoners._ _summary._ _at rome, in the type of the reverend apostolic chamber_, . summary [pamphlet .] _no._ .--_letter of the honourable marzi-medici, governor of arezzo._ my most illustrious and dearly beloved master: your favoured letter of the twenty-fourth of last month has reached me, and i am exceedingly sorry for the uneasiness in which you hint you are placed by the maledictions which signor pietro comparini and his wife have disseminated throughout rome, concerning the ill-treatment they say they suffered in your home while staying in arezzo. as your letter questions me for true information, i answer with all frankness, that both among the noble connection and in count guido's home they were treated with all respect and decorum. the cause of the first disturbance which sprang up between them and your mother and brothers was that signora violante, a few days after her arrival, presumed to domineer over the house and to keep the keys of everything, and in fact to turn out of house and home signora beatrice, your mother. with good reason, neither of the brothers was willing to consent thereto, and this gave occasion for the first insults and domestic broils. these afterwards increased when they saw that signor pietro had given over the company and conversation of the best people of the city, and had struck up acquaintance with the most vulgar. and with them he began to frequent daily all the taverns here. this cast discredit upon him, and was little for the good name of the franceschini. of much greater scandal were the many flights and petitions made by guido's wife, their daughter, to monsignor the bishop. these were made for no other reason than that neither she nor her parents wished to stay any longer in arezzo, but desired to return to rome. when she had been rebuked by that most prudent prelate, he always sent her home in his carriage. it is true that ever since the comparini left this city until the present time the signora has conducted herself with much modesty and prudence. from this fact every one infers that the poor child was led to such excesses by her parents, as she herself declares to everybody. now she detests even the memory of them. therefore, she is getting back into the good opinion of every one, and especially of those ladies of the city who had ceased having anything to do with her. finally, these same comparini had taken away all her jewellery from the signora, which i forced them to restore. altogether, such and so great are the scandals to which they have given rise before the whole city in the lapse of the few months they have stayed here, that i write you only a few of them. i assure you that with them your brothers have had the patience of martyrs. accordingly when i saw that they had become incorrigible, and were the talk of the town, and that they might force your brothers to commit some excess against them, for the maintenance of good discipline, i availed myself of the authority vested in me by his serene highness, and threatened them with prison and punishment unless they behaved themselves. after these threats, which they evidently merited and which might have overtaken them, they decided to go to rome, as they did a little later, leaving behind them in this city a very bad reputation. as for the rest, there is now in your home an utter quietude, and the signora lives with exemplary prudence, detesting the ill example she had shown the ladies of this city, and she confesses freely that it was so commanded by her parents. in my judgment, it is the hand of god that has freed your family from such turbid heads. this is all i can here put down, out of much else there is to say about it. therefore rest at ease, and believe me that the discredit has been entirely their own. i need only sign myself, with all my heart, to your most illustrious self, your most devoted and obliged servant, vincenzo marzi-medici. arezzo, _august , _. to signor abate paolo franceschini, rome. no. .--_deposition of francesca._ i will tell your excellency why i have fled from the home of my husband. here in rome, three years ago, i was married by my father and mother to the said franceschini, and after i was engaged to him he stayed here in rome for two months without consummating the marriage. then with my father and my mother i was taken by my husband to arezzo, because in the marriage contract it was agreed that my father and mother should go and live in arezzo, as they did. after they had remained there four months, they departed and returned to rome, because of the ill-treatment they suffered, at the hands not only of my husband, but of the others in his house. i was left behind in arezzo, and when about a year had passed after the consummation of the marriage, as i did not become pregnant my husband and my mother-in-law beatrice began to turn against me, because i had no children. he said that because of me their house would die out and that he could not hope for an heir by me after a while; for by chance he had heard my father say, that during a girlhood sickness certain seeds had been given to me as medicine, which possibly hindered me from having children. for that reason i came to be continually mistreated by my husband and mother-in-law, though i answered that i was not to blame for that. yet they continued always to threaten my life, and, without any real occasion, they sought every pretext to maltreat me. then my husband began to be jealous of me, and forbade me to show my face at the window. and to remove that occasion of jealousy i never showed my face save when it was absolutely necessary. so one day, while we were on the loggia, he said to me that i was staying up there to make love, without telling me with whom. i replied that these were mere pretexts, and that from that place one could see only the street, without looking into the windows of the houses; for the loggia was entirely on the roof. [sidenote: a. she tells of her husband's threats because of her ardour for her lover.] and then because the canon caponsacchi, with other young men of the place, used to pass before our house and stop to talk with certain hussies, who were standing there in front, my husband began to fume with anger at me because the said canon kept passing there as above, although i was not at all to blame. his suspicion increased all the more because, while we were in a great crowd at the play one evening, canon conti, the brother of the husband of my sister-in-law, threw me some confetti. my husband, who was near me, took offence at it--not against conti, but against caponsacchi, who was sitting by the side of the said conti. then because conti frequented our house, as a relative, my husband took offence at him likewise; and this so much so that i, being aware of it, retired to my room whenever he came to our house, that i might not have to take even more trouble; but my husband was not thereby appeased, but said that i did this as a trick, and that his suspicions of me were not removed. he began anew to torment me so, on account of caponsacchi, that i was reduced to desperation and did not know what to say. then to remove that occasion for his ill-treatment, i spoke to the said caponsacchi one day as he was passing our house and begged him not to pass that way, that he might relieve me from all the distresses i suffered at the hands of my husband on that account. he replied that he did not know whence my husband had drawn such a suspicion, as he used to pass along there on other affairs, and that, in short, guido could not stop his passing along the street. and although he promised me not to pass along there, he continued to do so. but i did not show my face at the window. yet with all this my husband was not appeased, but continued to maltreat me and to threaten my life, and he said that he wished to kill me. at the time of the affair of the play told above, as soon as we had returned home, he pointed a pistol at my breast saying: "oh, christ! what hinders me from laying you out here? let caponsacchi look to it well, if you do not wish me to do so, and to kill you." [sidenote: b. she died asserting that she did not know how to write.] furthermore at the beginning of these troubles, i went twice to monsignor the bishop, because he might have remedied it in some way; but this did no good, because of his relation with the house of my husband. and so as i was a stranger in that city and did not know how to free myself from these perils and abuses, and as i feared that if guido did not slay me with weapons he might poison me, i planned to run away and go back to rome to my father and mother. but as i did not know how to accomplish this, i went about a month later to confession to an augustinian father, whom they call romano. i told him all my distresses, imploring him to write to my father in my name, as i do not know how to write, and to tell him that i was desperate, and must part from my husband and go to him in rome. but i had no response. [sidenote: c. she confesses the strength and audacity of her lover.] [sidenote: d. she confesses a conversation with her lover.] [sidenote: e. she confesses a new conversation with her lover.] therefore, not knowing to whom i might turn to accomplish my desire, and thinking that no one in the place would assist me, because of their relationship or friendship to my husband, i finally resolved to speak of it to the said caponsacchi, because i had heard said that he was a resolute man. accordingly, as he was passing one day before our house, at a time when my husband was out of the city, i called him and spoke to him from the stairs. i told him of the peril in which i found myself on his account, and begged him to bring me here to rome, to my father and mother. he replied, however, that he did not wish to meddle at all in such an affair, as it would be thought ill of by the whole city, and all the more so as he was a friend of the house of my husband. but i implored him so much and told him it was the duty of a christian to free from death a poor foreign woman. at last i induced him to promise me that he would accompany me as above. then he told me he would secure the carriage, and when that had been arranged he would give me a signal by letting his handkerchief fall in passing before our house, as he had done before. but the next day went by, and although i stood at the blinds, he did not give the signal. when the day following had also passed, i spoke to him again as above, and complained to him that he had broken the word he had given me. and he excused himself, saying that he had not found a carriage in arezzo. i answered him that, at any rate, he should have procured one from outside, as he had promised to do. then the last sunday of the past month, he went by our house again and made the signal with the handkerchief, as he had promised. and so i went to bed with my husband that evening, and when i had assured myself that he was asleep i arose from bed and clothed myself. i took some little things of my own, a little box with many trifles inside, and some money, i know not how much there was, from the strong-box. these were, moreover, my own, as is evident from the list of things and moneys made by the treasurer of castelnuovo. then i went downstairs at dawn, where i found caponsacchi, and we went together to the porta san spirito. outside of it stood a carriage with two horses and a driver, and when we had both entered the carriage we journeyed toward rome, travelling night and day without stopping until we reached castelnuovo, except for them to take refreshment and to change the horses. we arrived at dawn, and were there overtaken by my husband as i have told heretofore to your honour. the said caponsacchi is not related in any degree to my husband, but was certainly a friend. [sidenote: f. the lie about the arrival at castelnuovo.] [sidenote: g. the lover is not a relative of her husband.] the said caponsacchi, before the said affair, did not send me any letter, because i do not know how to read manuscript, and do not know how to write. [sidenote: h. new lies, that she did not receive letters from her lover, and that she does not know how to write.] before the said affair, i did not at all send a letter of any sort to the said caponsacchi. [sidenote: i. another lie, that she did not send letters to her lover.] [sidenote: k. she does not know how to write, and her husband had traced the letter.] when again put under oath, she responded: while i was in arezzo, i wrote at the instance of my husband to abate franceschini, my brother-in-law here in rome. but as i did not know how to write, my husband wrote the letter with a pencil and then made me trace it with a pen and ink it. and he told me that his brother had much pleasure in receiving such a letter of mine, which had been written with my own hand. and he did this two or three times. if your honour should cause me to see one of the letters written by me as above, and sent to abate franceschini, i should clearly recognise it. and when it was shown, etc., she responded: "i have seen and carefully examined the letter shown me by the order of your honour, which begins--_carissimo sig. cognato, sono con questa_--and ends _francesca comparini ne franceschini_, and having examined it, it seems to me, but i cannot swear to it as the truth, that it is one of the letters written by me to abate franceschini, my brother-in-law, in conformity to my husband's wishes, etc." and after a few intervening matters, etc., when questioned, etc., she replied: "i have never sent letters of any sort by the said maria to any one." [sidenote: l. another lie about the arrival at the tavern of castelnuovo.] in all truth, i arrived at castelnuovo at the blush of dawn. we shut ourselves in there at the tavern of castelnuovo for the space of more than an hour. during that time we stayed in a room upstairs. [sidenote: m. new lies that she did not lie down to sleep at the inn of castelnuovo.] and after a few other matters, when questioned, she replied: "i did not go to sleep, nor lie down to rest in the tavern at castelnuovo during the time i stopped there, as above." i know that your honour tells me that the authorities pretend further that i slept all night in the abovesaid tavern of castelnuovo in an upstairs room, in which canon caponsacchi also slept. and i say and respond that no one can truly say so, because i did not rest at all in the said tavern, and stopped there only for the time stated above. [the letter of pompilia to abate franceschini occurs both here and in the summary of the defence. it is translated on pp. , .] no. .--_a letter of francesca written to abate franceschini._ outside: to abate paolo franceschini, rome; but inside: my very dear sir and brother: i have received the fan which you sent, which has been most welcome to me. i accept it with pleasure and thank you for it. it displeases me that, without reason, my parents wound the honour of our house. i for my part am well and am happy in not having them now to stir me to evil. i wish well to all our house, in the sacred fear of god. in fact you may well laugh at the maledictions of my parents. command me, who reverence you from the bottom of my heart. your deeply obliged servant and sister-in-law, francesca comparini franceschini. arezzo, _july , _. no. .--_the examination of canon caponsacchi._ i had to go to rome on my own business, and as i told my secret to giovanni battista conti, a relative of franceschini, who frequented the home of the latter, francesca might have learned about it from the same canon, although there was talk about town of my coming to rome, which was to follow soon. hence a letter, sent to me by the said francesca, was brought one day by a certain maria, then a servant of the franceschini. in it she told me that she had heard of my going to rome, and that, as her husband wished to kill her, she had resolved to go to rome to her father; and not knowing with whom she might intrust herself, she asked me to do her the service of accompanying her as above. i answered her that i was unwilling to do anything of that kind, or to expose myself to such a risk; and i sent her a reply by the same servant. i do not remember the precise time that she sent me the above letter. thereafter, when i passed the house, she continued making the same request to me, by flinging from time to time from the window a note that repeated the request. and i replied to her, sending the response by the same servant, and telling her that i did not care to involve myself in such affairs. and therefore she finally cast me another note from the window, which, as i learned, was seen by a working-woman living across the street, whose name i do not know, and she carried it to the husband. the same servant was then commissioned to tell me that there had been a great commotion in the house because of it, and that the sister of guido, who had been married into the house of conti, had declared furthermore that that servant had carried the letter to me. she also told me that guido said he was going to kill his wife in some way after a little while, and that he would also be avenged on me. accordingly, with this purpose, to free myself from every difficulty and danger, and also to save from death the said francesca, i resolved to leave for rome and to accompany her thither, conducting her to her father. and so one evening--i do not remember the exact time--as i was passing their house i gave her a letter, which she drew up to the window with a string. in it i told her that to free her from death i would accompany her as above. another evening she threw to me from the window a letter in which she renewed the above insistence, declaring to me that her husband was always threatening to kill her; she would therefore have to receive the favour of my company as above, of which i had spoken. and finally, the last sunday of the past month of april, while i was going by their house and she was standing at the window, i told her that i had secured the carriage for early the following morning, and that i would have it await her at the gate of san clemente. accordingly, at about one o'clock in the morning, she came alone to the said gate. we entered the carriage and turned along outside of the city wall to go to the gate of san spirito, which is in the direction of perugia. this carriage belonged to agostino, tavern-keeper in arezzo, and a driver, surnamed venarino, the servant of the said agostino, drove it. i had had him leave the city sunday evening at the ave maria. then we pursued our journey without stopping to spend the night anywhere, and we paused only as it was necessary for refreshing ourselves and changing horses, until we reached castelnuovo on tuesday evening, the last day of the said month of april. then because francesca said that she was suffering some pain, and that she did not have the fortitude to pursue the journey further without rest, she cast herself, still clothed, upon a bed in a chamber there, and i, likewise clothed, placed myself on another bed in the same chamber. i told the host to call us after three or four hours, for resuming our journey. but he did not call us, and the husband of the said francesca arrived in the meantime, and had both of us arrested by the authorities, and from there we were taken to rome. i have not spoken in arezzo to francesca at other times than those i have recounted above to yourselves. [sidenote: e. the lover is not related to count guido.] the husband of the said francesca is not related to me in any degree whatsoever. i have no profession at all, but am a canon of the pieve, of santa maria of arezzo, and am merely a subdeacon. when i was imprisoned at castelnuovo certain moneys, rings, and other matters were found, of which a memorandum was made by the authorities. i have never written any letter to the said francesca, except as stated by me above. the letters sent to me as above by the said francesca were burned by me in arezzo. although in the prison of castelnuovo, where i was placed, a diligent search was made by the authorities and also by the husband of the said francesca, nothing at all was found there. the said francesca when leaving arezzo carried with her a bundle of her own clothing and a box, in which she said there were some trinkets, but i did not see them. and she had it in a handkerchief with certain coins, which were then described at castelnuovo by the treasurer. i do not know precisely by whom the letters sent to me by the said francesca were written, but i suppose that they may have been written by her, but i do not know whether she knows how to write. in the chamber of the inn at castelnuovo where we stopped, as i said in my other examination, there were two beds. only one of these was provided with sheets by the servant of the tavern, that it might serve for signora francesca. i did not have sheets placed on the other, because i did not care to undress myself. nor did she undress herself, as i said in my other examination. if i should see one of the letters written by me to signora francesca, i would know it very well. i have seen and i do see very carefully these two letters which have been offered as evidence in this suit and have been shown to me by the order of your honour. one of them begins _adorata mia signora, vorrei sapere_, etc., and ends _mi ha detto il conti_. having well considered this letter, i declare that it was not written by me, though the handwriting of the same has some resemblance to my own. i have also seen the other letter, which begins _amatissima mia, signora, ricevo_, etc., and ends _questa mia_, and having well examined it i say that the same was not at all written by me, and is not in my handwriting. furthermore, it has not the slightest resemblance to my handwriting. i have never spoken in arezzo to signora francesca, except when i spoke to her at the window, as i said in my other examination. i have never received other letters from the said signora francesca concerning other matters than her flight to rome, as i have said in my other examinations. i marvel that the fisc pretends that, before the flight, several other love-letters had been sent to me by the said signora francesca; for she was a modest young woman and such actions would be out of keeping with her station and her birth. and therefore i declare that the abovesaid pretence is false and without foundation. i turn back to say to your honour that in the prison of castelnuovo there was not found by the authorities anything whatsoever. and if your honour tells me that certain love-letters were found, which the fisc pretends are those sent me by signora francesca, i say and respond that it is not at all true. no. .--_letter of the most reverend bishop of arezzo._ outside: to the most illustrious and most respected signor paolo franceschini, rome. and inside: my most illustrious and respected signor: i understand why you desire to tell me about the quarrels which have arisen between signor guido, your brother, and signor comparini. and i cannot but pity you for the trouble you have had in a case so rare, and indeed so unprecedented. the signora, your sister-in-law, had some recourse to me, but her great excitement, taken along with the excessive passion of her mother, revealed to me that the daughter had taken this step entirely by instigation. so i tried to make peace between them, thinking that when the instigations of the parents were removed she might be brought to right reason. i believed this the more readily, as she was of tender age. and the more she spoke, and the more she made outcry, that much the more had she been urged thereto by the instigation of her mother. and that she might not be excited even more, i had her taken home in my carriage twice. i have some knowledge of this because signor senator marzi-medici, who presides over the laic government of this town for our most serene grand duke, has told me all. and i need only add that i reaffirm what i have written with entire sincerity. wishing for new chances to serve you, i affirm myself to you, sir, your most obedient servant, the right reverend bishop of arezzo. arezzo, _september , _. no. .--_reciprocal love-letters._ my dear sir: i do not multiply my assertions for the purpose of proving my love to you, because my resolution and your desert is enough proof of it. my affection no longer has any rein, etc. may grace be to him who gives grace. my own signor: i tell you, do not be surprised if my mother was at the window, because she was looking at the one who was setting the sofa in order. and therefore you can pass here without fear. when more at my leisure, i will write you some fine matters, etc. when they tell me anything, i will advise you of it. my adored mirtillo, my own life: i pray you pardon me that i did not look at you yesterday when i was at the cappucchini, because i saw that the two were watching to see if i would look at you. therefore i suffered much pain in not being able to look at my sun. but i saw mine own with my heart, in which i have you engraved. i remain as i am and shall be your devoted servant and faithful sweetheart, amarillis. my well-beloved: i have received your letter, which has given me much pain, etc., that the jealous one might have seen the letters. and he did see them, but did not open them, because they were tied up together, and he supposed that they were other letters, and did not take them into his hand. this fellow is telling it because he would like you to get angry with me, etc. you ask me if i am of the same thought, and i tell you yes. if you have not changed, i am ready to do what i have told you, etc. then soon, if they continue to drink red wine, i will tell you so. whether you are of the same mind still, or have repented of it, i am content to do what you wish, etc. i remain as i have been your faithful sweetheart. most beloved signor: i do not know why you did not pass here yesterday evening; for i took my stand at the window and saw no one. i forsook the window because the canon, my brother, was there. i left there to go to the other windows lest he might see me, etc. but you turned toward the door of your sweetheart, because there is the one adored by you. conti has asked me for those octaves, which you gave me, etc. therefore tell me if i must give them to him or still keep the precious verses for myself. and i remain as i am and shall be your faithful, yes, your most faithful sweetheart, amarillis. i forgot to tell you that the signora my mother no longer has the fever, and is drinking wine, but by herself. her wine, however, is red like ours. therefore tell me what to do, that i may do it. i close with sending you a million kisses. but i know that in this way they are not so dear as a few would be if you would give them to me. but those of the signora are very dear to you, though i tell you that they are poisoned, etc. be the scrupulous one with others that you have been with me. for you have reason for this with others, but you have no occasion for it with me, etc. most cherished narcissus: this evening i received your letter, and it gives me great comfort to know that you are not angry, etc. i do not know when he will give it to me, but if he gives it to me i will give it to you. the jealous one is away, but i shall still be here, and all the rest; but because my mother has not found a servant, etc., they have said that they will stay here a while. therefore you will not pass [?] out of my mind because of my not seeing you for a while. but whoever loves from so good a heart as i do, will keep one in mind. i pray you pardon me if i make myself tedious by writing too often. acknowledging myself as i am, i remain your devoted servant and most faithful sweetheart. most beloved signor: if you could imagine with what haste i have written to you these two verses, etc. i met signor doctor, as usual. he asked me where i was going, and along the street, he asked me why i had written scornfully to him. i told him that he deserved even worse, because he had given evil deeds and good words; for he had said he was fond of me and that he wished him and the rest of them in sovara, etc. he replied it did not come from this one, but on account of another gentleman whom i used to like, who was more gallant than he. i answered him that if that one was not more gallant than himself, he was at least more faithful, etc. professing myself, as i have ever been faithful, etc. my adored and revered signor: i wish by this letter of mine to excuse myself from my error in sealing the letter which i sent to rome, etc. i tell you that they have not found any letter at all of mine, because i do not let them lie around the house, but give them to the flames. and while i keep them, i place them in my bosom. this is not an excuse, why you should surmise [it to be] one of my letters; for i tell you that i give it place in my bosom, etc. inasmuch as one of the family may be behind the curtain, as i believe, do not make any signal when you are under the windows. i shall be at the window this evening, or else at the blinds, and when i shall see you i will show myself at the window. but it is necessary to be prudent, that he may not see me. because he has told me that if he sees me he will wish to do such things as not even Ã�neas, the trojan, did. to avoid arousing his suspicion i will not stay there. but i pledge myself your most devoted servant. my longed-for blessing: if your saying that i do not love you, because you do not know me, is not an error, it is at least displeasing to me. hear me, my dear: i am offended with you, because either you consider me blind or you do not consider me amiable. you cannot say of a truth that i do not love you, nor can you say truly that any one does love as much as i love you. look into my eyes, and you will be astonished; for when bright with my tears they will be faithful mirrors to reveal to you that your face is copied there (in which an outline of it is made in the sun), that your whiteness is snow in comparison with the milky way, that the graces have directed your movements by their own hand, that venus in fashioning you took the measure of your limbs with her own girdle. ah yes, i love you so much that in one respect i would wish alone to love you in the world, because it seems to me that i could love you all in central latium. i should like that all might love you, because you would see that all of them put together cannot love you as much as i alone do. my breast is envied by every other part of me, because it alone is able to love you. these are matters one cannot know by mere hearing; they are matters to render one excusable to any one else who does not believe it. but you are a cruel beauty; for if you see a face composed by the miracles of angels you should not consider it a lie if a heart is found fashioned by the miracles of love, etc. i leave you a thousand thousand kisses. my well-beloved: i pass by compliments, because i cannot match your very gallant verses, which are so far different from what i merit. you tell me that you wish to know what has happened in our house. i tell you that nothing has happened, so far as i can see, because none of them have said anything to me--none of them. but signor guido seems rather well disposed toward me than otherwise, and therefore i cannot find out whether they are angry with me. let my brother-in-law lock the door; he does it often, etc. if you do not wish to pass by here any more, i leave that to your own judgment, and i will suffer quietly the pains which are pleasing to you. therefore i tell you that you may do as you wish. for as gold is refined in the fire, so love is refined by suffering. i can well say that i shall suffer pain at not seeing you as i have been accustomed, etc. with a loving kiss, i remain as i have ever been, your most sincere sweetheart and your most faithful slave. i had quite forgotten to tell you that i stay in the same room as at first, and that thursday evening i went to bed at eight o'clock, and so you did not hear me enter the room. i told the servant that she should make the signals agreed upon, etc. signor guido returns saturday morning and you may pass this evening at ten o'clock or sooner, when you shall see the light in the room, etc. my well-beloved: i received your letter, which was most pleasing to me, as are all the rest you have sent me, etc. i see that you like the pastor fido. but i would wish you to imitate him, and i will imitate another vienna. i hear from her that you will want to come to see me at the villa, etc. if i could only bring it about, i would more willingly be your wife than your servant. you tell me that conti is unwilling to bring any more letters for you. but let me inform you that i am wheedling him, and i have the wits to bring it about that he will carry them to you; because i say two kind words to him and he is charmed and will do what i wish. you tell me that i shall let a cord down through the lattice, but you do not tell me what evening, etc. but i tell you that the jealous one had gone to sovara, if i might speak to you. but the confessor is utterly unwilling, and for that reason i do not have you come here, because now the street door is no longer opened, but you might be able to open the back door, etc. but that fate does not wish it, and you do not. i thank you for the kisses you send me, but if you yourself could give them to me, i would hold them dear. and i give you others in reply, as many millions as you have given to me. your most faithful sweetheart. i do not know what name to give myself, whether vienna, or amarillis, or dorinda, or lilla, but i wish to call myself ariadne, for i believe i have had to be such. i wish to call myself such, only so you are not a theseus, but a chaste joseph, or a dear narcissus, or an ilago, or a fedone. adonis indeed took pity on venus, but i am none such, but even a medusa. therefore i deserve, etc. if you have read tasso, you will know who this was, etc. my beloved idol: i know of the affairs which have happened to you. i do not take it in bad part when you tell me that it is not possible to make my mother sleep, while she is ill and drinks no wine, and therefore cannot sleep. it may be in the next few days that she will get well. then i will inform you of it, etc. your faithful sweetheart, amarillis. my adored, beloved, and revered heart: i am confused at such praise, etc. you write to me oftener than you might about the doctor. you offend me by saying that i will love him again. i tell you as sure as the sun shall rise upon this world, i have not the heart for another such blow. but he who does ill, thinks ill, etc. as to what you wish to know about the wine, i tell you that it is red now, but i do not know how much longer it will be so, but i will let you know about it. sending you a thousand and a thousand, and a million of kisses, i remain, etc. come this evening at seven o'clock, because i wish to speak to you, and cough when you are under the window. amarillis. she is bursting because she cannot say, as you tell me here, that she is white as milk, and that you are darker than i. if i had been you, i might have called you ivory, as i do call you. watch this evening lest it be the jealous one, and not myself. therefore i will cough, and if you do not hear me cough, do not move. i let you know that signor guido is going out of the city, and will be gone several days. therefore i pray you come this evening about seven o'clock. and when you are under the window cough and wait a little while, that i may not make a mistake. he goes away monday morning, etc. my dearest and most deserving well-beloved: i give the infinite thanks of rosalinda, etc. i wish you to know that he makes me signals along the via del poggio, etc., and not because i wish to make proof of your love, which i know very well. you are as constant as myself, and therefore i do not wish to make these proofs, etc. so that you cannot say that i no longer love you, because all my good wishes for signor guido are turned to you, who deserve it. amarillis. _letter of the lover._ my adored signora: i wish to know whether you can leave sunday evening, that is, to-morrow evening, for if you do not go away to-morrow evening, god knows when you shall be able to do so, because of the scarcity of carriages, owing to the fact that on wednesday the bishop departs with three carriages. therefore, if you can go, as soon as you have read this letter of mine, return to the window and throw it to me as a sign that i may reserve a carriage beforehand, which may be secured from some one or other. if i secure the carriage to-morrow, in passing along there i will let fall my handkerchief one time only. then for the rest, to-morrow evening i will wait from eight o'clock in the evening on as long as necessary. and as soon as you see that they are sound asleep, open the door for me, that i may help you make up your bundles and collect the money. above all, try to put some into all their cups, and do not yourself drink it. and if by ill luck they shall find it out, and shall threaten you with death, open indeed the door, that i may die with you or free you from their hands. and praying god that he will make this design of ours turn out well, i declare myself as ever. your most faithful servant and lover, mirtillo. it is a very bad sign that the jealous one seems pacified, and that he has said you were at the window. because he will wish to find out in that way what you are doing at the window, and for what purpose you are there. for conti has told me that now he is more jealous than at first, and that if he find out about anything, he will wish to avenge himself by putting us to death. he wishes to do the same to me, and that is what will happen. here then has come at last the breaking of the chord. most beloved signora: i have received your note full of those expressions (and then loving words follow). be pleased to receive me into your bosom, in which i rest all my affections, etc. consign to the ashes this note of mine. _another letter of francesca._ my revered signor: driven by the affection which i feel for you, i am forced to contradict what i sent you yesterday evening in that letter when i said i did not wish to tell you to come here. if you did not tell me then, i tell you now that i would wish you to come here this evening at the same hour as day before yesterday evening. i have indeed thought that towers are not moved by such light blows. but if you do [not?] wish to come here (that there may be no occasion for you to break your promise to some beloved lady or even though it may not be convenient), i do not wish to be the cause. therefore if you wish to come here, pass along as soon as you have read this, etc. no. .--_decree of banishment of the lover._ _tuesday, september , ._ joseph maria caponsacchi, of arezzo, for complicity in flight and running away of francesca comparini, and for carnal knowledge of the same, has been banished for three years to civita vecchia. [file-title of pamphlet .] _by the most illustrious and most reverend lord governor of the city in criminal cases:_ _roman murder-case._ _for count guido franceschini and his associates, prisoners, against the fisc._ _new memorial of the fact and law, together with a summary, by the honourable procurator of the poor._ _at rome, in the type of the reverend apostolic chamber, ._ romana homicidiorum [pamphlet .] most illustrious and most reverend lord governor: the confession of count guido and his fellows as to the murder of francesca, his wife, and of pietro and violante comparini, his father-in-law and mother-in-law, falls far short of supporting the fisc in demanding the ordinary death penalty. but, rather, it is remarkably in our favour in excluding that penalty. for there is no longer any doubt as to the cause of the murders, namely _causa honoris_. this at first was denied by the fisc because of the presence of other causes, though these either were insufficient or were indirectly hurtful to the sense of honour. we will go over them hereafter, not "with unwashed hands." for a confession indeed should be received along with all its details, and is not to be divided according to a preconceived purpose. [citations.] this cause alone would be ground enough for demanding that he and his fellows be dealt with more mildly, if we bear in mind that _causa honoris_ is quite sufficient for the moderating of this penalty. for we have proved in our other argument that a husband may kill his adulterous wife, even after an interval, without incurring the death penalty, wherever the adultery is really proved, as the advocate of the fisc concedes in his response. § _solamque suspicionem_. and in very truth, we have in our other plea adduced a great many decisions of the highest courts, wherefrom it is evident that the penalty has been diminished for husbands who have had their wives killed even by means of an assassin; and, on the contrary, no decision favourable to the fisc is cited. such an opinion is therefore to be accepted more readily, inasmuch as it is sanctioned by the greater number of authorities. and even although farinacci and rainaldi seem to take the other side, yet farinacci, in his _questions_, shows himself very much in doubt, as i have shown in my other plea; and in _cons. _, he shows that he is very changeable, since in _cons. , no. _, he has proved the contrary. therefore, when his attention was called to this changeableness, in excusing himself, he asserted, in the said _cons. _, under _no. _, that beatrice, in behalf of whom he had written in _cons. _, had been beheaded; as if this kind of rigorous sentence should be followed in practice. and may this distinguished authority pardon me, but he responds inconsistently, having forgotten what he had written in the end of _cons. _: that is, that beatrice was put to death not because she, after an interval, had commanded that one be put to death who was plotting against her honour, but because she did not prove her right to this latter exception, where he says: "so also there was strong hope for the sister beatrice, if she had proved the excuse she offered, as she did not prove it." but the honourable rainaldi, whose words and writings i venerate, in his _observationes criminales_ (_cap. _, § , _no. _), after he asserts that some remission from the ordinary penalty may be hoped through the benignity of the prince, does not decide the point by citing gizzarellus and giurba, who affirm that in justice the penalty should be decreased. but he goes back to what he had written (_cap. in rubrica sub no. _), where, however, he does not openly examine the point as to murder permitted for honour's sake. otherwise he would go contrary to the general opinion of authorities, and to many decisions of the highest magistrates, that is to the common practice of the courts. [citation.] "and this opinion is followed in practice, as i find in the event of such a fact the neapolitan court has so decided." and concerning this same practice, matthæus likewise bears witness. [citation.] yet, as i have said, it would be enough to clear guido of conviction if only his confession be taken in its entirety without subdivision. for greater completeness, however, we offer full proofs of the adultery, as brought out in the prosecution for the flight from home. the fisc has attempted to attack these proofs lest he might have to lay down his arms; and the achilles of his pretence is solely a preposterous cross-examination, which was not admitted into the suit for permanent record. it gives the word of a certain baseborn woman, formerly a servant in the home of the accused, who was severely maltreated by guido, by the canon his brother, and by their mother. all too eagerly she narrates the ill-treatment suffered by pietro and violante, and by francesca their daughter, and his wife, respectively, especially in the matter of their food, on account of which pietro and violante preferred to return to rome. yet guido by a written agreement had bound himself to furnish food to the abovesaid couple. and furthermore it is claimed that the flight of pompilia also was necessary, because she was being threatened with death; in order that her own base desire of violating her matrimonial fidelity may not be deduced therefrom. if, however, we have any regard for the truth, the domestic affairs of the accused were not so pinched, because they were more than enough, not merely for frugal, but even for lavish living. the theft of the moneys committed by francesca in the act of flight demonstrates this. (see the prosecution for flight, pages , , and .) the real and true cause which moved pietro and his wife to go back to rome was undoubtedly that the mother of count guido could not bear that the aforesaid comparini should regulate family matters and should at their own pleasure dispose of everything looking toward the government of the home; this with greatest flagrancy and with none the less boldness they desired to do. furthermore, pietro took it ill that he was rebuked for leaving the company of the noble class and associating in taverns with the commonest persons in town, to the scandal of well-born men. and still more because he was compelled by the governor of the city, under fear of imprisonment, to restore certain trinkets and gems of his daughter, which he had taken away, as count guido testified in his examination (pp. and ). and this is admirably proved by a letter of the same governor recently presented by ourselves, which we give in summary, no. . with these statements the cross-examination of the same francesca, when arrested in her flight, agrees; in it we nowhere read that she was maltreated, nor that she ever complained of that home of decent poverty. and yet it is very probable that, to put a good face upon her flight, she would have alleged the domestic want and home miseries, if she had ever suffered them. we do not deny that disputes immediately arose between francesca and her husband, and possibly he threatened her with death. but this was for another reason, namely that she should quit the illicit amours she had begun at the suggestion of her parents, and that she should live with evident chastity as is to be read expressly in her deposition (our summary, no. , letter a). it is verified from the fact that francesca herself, in a letter written to abate franceschini, ingenuously confesses (summary of the fisc, no. , and our summary, no. ) that her parents indeed were sowing strife between the couple, and were urging her to have recourse to the bishop under the false pretence of ill-treatment; and day and night they kept instigating her to poison her husband, her brother, and mother-in-law, to burn the house, and what is still more awful, to win a lover and return to rome in his company. nor did she fail to obey them in several of these matters. and in another letter written to the same abate, and shown by us, and given in our summary, no. , we read: "not now having those here who urge me to evil." of no counter-effect is the response that the single characters of the said first letter had been previously marked out by guido, and were afterward traced with a pen by herself, as she asserts in our summary, no. , letter k. for proof of this statement she can bring no other evidence than that she does not know how to write. summary, no. , letters b, h, and k. in this, furthermore, she stands most clearly convicted of falsehood by her signature, which was recognised by herself at the command of the court while she was in prison, as we find in the prosecution for flight (p. ). she also stands convicted of falsehood by the signature of her marriage agreement, concerning the truth of which it would be ill to doubt, both because there is along with it the signature of one of the lord cardinals, and because her handwriting was recognised by herself who had written it, at the demand of the notary, as is to be seen in the copy filed in the prosecution for flight, p. . and, furthermore, she is convicted by the priest with whom she fled, who asserts that more than once at night he has received letters which were either thrown out of the window by her or were sent by a servant; we give his deposition in our summary, no. , letters a, b, c, and d. this is verified by the fiscal witness (p. ), where we read: "and she threw down a note, as i saw very clearly, and the canon picked it up, and went away." there are, besides, the letters and sheets of paper filled with mutual love, found in the prison at castelnuovo, where they themselves were overtaken. but it is utterly impossible that the characters of these were also marked by her husband, nor is it told by whom they were written; accordingly it is to be presumed that they were devised by herself, lest she might betray their forbidden love-intrigues, which they would have to hide with the greatest care. and i pray that the abovesaid letter be submitted to our eyes, and it will be clearly seen whether the characters were formed by one not knowing how to write, but forming them in ink in imitation of certain signs, or rather by the expert hand of the woman herself. in the first place, the truth of the said letter of which we are speaking, we may gather from the letter of the governor of arezzo, in our summary, no. , where we find: "of much greater scandal were the flights and petitions made by the said wife, their daughter, to monsignor the bishop. these were made for no other reason than that neither she nor her parents wished to stay any longer in arezzo, but desired to return to rome. when she had been rebuked by that most prudent prelate, he always sent her home in his carriage." and this is likewise expressly deducible from another letter of the most reverend bishop, which is given in the summary, no. , where we read: "the more she made outcry, that much the more she had been urged thereto by the instigation of her mother." and after a few words: "i have some knowledge of this, because senator marzi-medici, who presides over the secular government of this city for our most serene grand duke, has told me all." it is verified still further by another letter of signor bartolommeo albergotti, produced by the other side, which is given in the summary of that side, no. , at the end. but the letter is not given in its entirety, for, where it speaks of the secretary of the bishop urging count guido and his mother, we should read there: "not to maltreat the signora for the affront offered him. after disputes enough of this kind, he took the signora back home. and she declared that she was absolutely unwilling to live with signora beatrice and with the canon girolamo, her brother-in-law." and after a few other matters: "i pray yourself and signora violante to be willing to offer a remedy by instilling the wife with a tranquil peace, which will be for the quiet of all" (as we read in page ). this is also proved by the letter of the abate produced on the other side (p. ), where we read: "by signor guido, my brother, several offers have been made to him, but have not been accepted; and they insist that we force our mother and the signor canon to leave the house. but this shall never be, even if there do not follow both love and concord. i will never advise that." and from the letter of signor romano, , later, where we read (cf. p. liv.): "i have known why she fled to monsignor, and it was because she did not wish to live with the canon and beatrice," etc. (which words are not noted in the summary of the fisc, no. ). see for yourselves, therefore, that francesca was not maltreated, although she so deserved because of her eager and indecent recourse without cause to the most reverend bishop. hence it is evident whether the comparini left arezzo and francesca fled from home because of ill-treatment. it remains now that we see--even granting this ill-treatment--what cause of fleeing from the home of her husband francesca might have, or rather if her flight were not scandalous. this will not be difficult to make clear, if we will dwell for a little while upon the deposition of the same francesca and upon the letters found in the said prison of castelnuovo. these latter were produced by the fisc in the prosecution for flight, though they were not given recognition. the lack of this acceptance cannot stand in our way, nor do i think it can be denied that they are of the same handwriting, if they are compared with the assured writing of the command of the court. furthermore, as they contain love affairs, and the name of guido himself, no sensible person will think that they were not written by them. from her own deposition, it is evident that she was often abused for her sterility, and was terrified by threats of death on account of her love affairs with the said priest (as we see in the said summary, no. , letter a). nor was the cautious husband deceived, since her love increased day by day, while her conjugal affection indeed decreased just as her feeling for her lover increased. in the said letters (which are given in summary, no. ), that priest is called: beloved, adored, mirtillus, my soul, most dearly beloved, narcissus, my eagerly craved blessing, dearest idol; and she signs herself "thy faithful sweetheart," and "amarillis." and conversely, she is called by her lover "my adored signora." and in the details of those letters is expressed her intense love and the ardour with which that unfortunate one was burning for her lover, as is evident. nor may i without shame refer to the very tender expressions of her love. but one of them, and possibly a second, i may not omit, that "from the claw, you may recognise the lion." thus in letter , we read: "so that you cannot say that i no longer love you; because all my good wishes for signor guido are turning toward you, who deserve it." and this possibly is the reason why she refused to lie with her husband, as the said letter of signor albergotti points out, where he says: "the signora has been melancholy, and two evenings after your departure she made a big disturbance, because she did not wish to go and sleep with signor guido, her husband, which displeases me very much." in the first letter [we read]: "my affection no longer has any rein"; in the fourth: "i am ready to do what i have told you"; in the tenth: "i will suffer quietly the pains which are pleasing to you." and it would be a long task and a disgusting one, to tell them over singly. for she was unwilling to conform herself to the chaste manners of arezzo, accustomed as she was to living a freer life. this may be read in the letter of abate franceschini produced by the other side (page ), and following, where we read: "these occasions for bitterness, which have arisen between yourselves and signor guido, i do not wish to examine. i know enough to say that this has arisen from your wishing to turn the wife from what, according to the custom of the country, her husband both may and ought to do. because over the wife god has given him authority, and likewise it is the general usage and the custom of the country. if yourself and signor pietro should stand in the way of this, you would do wrong, and it would be the duty of the husband to admonish his wife." and in another letter, p. , we read: "i cannot persuade myself that my mother and brothers would conduct themselves in such a way as to force her to have such recourse." and after a few words we read: "and know well that what i have endeavoured by my words to urge upon signora francesca, signor pietro, and yourself is only out of pure zeal for the honour of your house and of yourselves." on the other hand, the same thing is to be drawn from the letter of the said priest (as we read in letter ): "i have received your notes, full of those expressions [of love], etc. be pleased to receive me into your bosom, in which i rest all my affections." and the letters which have reference to the flight give clear proof of the mutual exchange of affection, as is well proved by the effect that followed. thus, in letter , we read: "i wish to know whether you can leave sunday evening, that is to-morrow evening; for if you do not go away to-morrow evening, god knows when you will go, because of the scarcity of carriages." and after a few intervening words: "as soon as you see that they are sound asleep, open the door for me, so that i may help you make up your bundles and collect the money." and after a few more words: "praying god that he will make this design of ours turn out well." and letter of the same lover, in which proofs of love are given by no means obscurely, also shows us of what quality those loves were, where we read: "that the jealous one seems pacified, and that he has said you were at the window, is a very bad sign; because he will wish to find out in that way what you do at the window, and for what purpose you are there. for [conti] has told me that now he is more jealous than at first, and that if he find out anything he will wish to avenge himself by putting you to death and will wish to find means to do the same to me." it is proved still further that the wretched accused complained bitterly that she was not content merely with a single lover at arezzo, but that she has been defiled by many suitors, so that she multiplied the disgraces to his house (page ), and following. we also read clearly in the seventh letter: "i met signor doctor, as usual. he asked me where i was going, and along the street he asked me why i had written scornfully to him. i told him that he deserved even worse, because he had given evil deeds and good words; for he had said he was fond of me, that he wished him and the rest of them 'in sovara.'" and in the thirteenth: "as to the doctor, you offend me by saying that i will love him again. i tell you, as sure as the sun shall rise, i have not the heart for another such blow." it is therefore quite evident whether francesca had an honest cause for leaving the home of her husband, or whether she was not rather impelled by the more urgent spurs of love. it may be said now that these letters were sent for a good purpose, that the priest might be induced to accompany her so that she might shun the danger of death, since she found herself therein without any just cause. and it may be said that she could have kept her modesty uninjured in the company of her lover. but since without doubt the amorous expressions used in the letters do not show chastity of mind and a modest disposition, and as just cause for flight is lacking, the veil wherewith her viciousness tried to hide itself is destroyed. i acknowledge that judith, who was an entirely chaste widow, of decorous appearance and fine looking in many ways, made advances toward a very licentious enemy; but this was for the purpose of accomplishing a pious work, namely, to liberate her own native land. she was provided not with lascivious letters, but with earnest words, the unimpaired modesty of which it were evil to doubt, since she was moved by the breath of the holy spirit. but to-day, how very few judiths are found; yet the daughters of lot are multiplied, who when they could not preserve their sense of shame even in their father's company made him drunken with wine, lest he, when sober, would deny them because they were sinning weakly, so that, when out of his own mind, he was involuntarily polluted with nefarious incest. (genesis, chapter .) do we believe that a girl who was dying for love, and who burned most ardently for the company of the loving cupid and her lover, would keep safe her modesty during a long journey? which modesty i only wish she had preserved in the home of her husband! and even if guido had imposed upon her, without due reason, a just fear of death, she should not therefore have increased his suspicion of base and lustful acquaintanceship by choosing as her companion in flight that priest whom her husband had suspected; for caponsacchi was not at all related to herself or her husband, as each of them confesses in our summary, no. , letter g, and no. , letter e. thus she would prove her dishonour. but while still guarding carefully her matronly shame, she might either have entered some monastery with the help of some church official, if she had used truth and not falsehoods; or she might have had recourse to the civil governor, who, after examining all things, would have afforded her a safe return to the city in company with honest men and women; or he might have placed her in the home of some honest matron, with due safeguards. but even if she had no faith in either of these, and was determined to go back to rome, she might at least have entered upon the journey with one of the servants. likewise, the other excuse for putting an honest face on the illicit amour falls to the ground--namely, that concerning the aforesaid flight another priest, the brother-in-law of the sister-in-law of the said francesca, was informed. for if the abovesaid letters are read through carefully, the suspicion of illicit correspondence with his connivance is very greatly increased. we read in letter : "you tell me that [conti] is unwilling to bring letters for you. but let me inform you that i am wheedling him; and i have the wits to bring it about that he will carry them for you. because i say two kind words to him, and he is charmed and will do what i wish." and in letter of the lover: "for he has told me that now he is more jealous than at first, and that if he finds out about anything, he will wish to avenge himself." but who would judge that we can deduce from the said words that their mutual love was chaste, because another priest was aware of it. i know that for francesca to show herself at the window at the hiss of her lover in company with the other priest does not savour well. of this a witness for the fisc, in the prosecution for flight, gives oath (pp. - ). therefore, not without cause did count guido have suspicion also of the other priest, as francesca herself asserted in her deposition in our summary, no. , before letter a. these [two] things are taken as proved therefore: [first] that it is not established that francesca was threatened with death without just and legitimate cause, and [second] that a most suspicious correspondence with her lover is established. it will follow that the threats were offered by her husband to preserve his honour, and so it was in the power of francesca to free herself from these threats without scandal, without flight, and without shame, by living chastely. she, however, was too prone to the tickling of the flesh, and had deferred all things to the fulfilling of her vicious desire, without respect to her violation of conjugal faith. it is all too foolish to doubt her utter recklessness, since it is manifestly evident from matters brought forward in the prosecution for flight, and especially from the reciprocal love between the lovers, etc. it is also clear from the letters containing such very tender expressions. [citations.] as to the entry and egress of the said priest from the home of francesca at a suspicious time, a witness for the prosecution testifies (p. ): "at the sound of the ave maria, while i was at the same window, i saw the door of the said signori franceschini open very softly, and from it passed the said signor, etc. he pulled the door to as he went out, but did not in fact close it, and therefrom, after a little while, i saw the said signora francesca pompilia, with a light in her hand, who closed the said door." it is also proved from letter , where we read: "for that reason, i do not have you come here because now the street-door is no longer opened, but you might be able to open the back-door," etc. this of itself is enough to prove adultery, even when trial is being made to demand punishment therefore. [citations.] her leaning from the window at a hiss, day and night, and their mutual nods, concerning which a witness testifies, p. , are quite enough to prove carnal communication. [citations.] then there is the manner in which they prepared for the flight, which includes, as i may say, a show of treachery, as is to be understood from the letter of the priest, no. , where [we read]: "above all, try to put some into all their cups, but do not yourself drink it." for in seeking an opportunity to mingle an opiate for them, he was inquiring what coloured wine they were drinking in the home, lest, as i suppose, the colour of it when altered by the drug mixed therewith might betray their plots. so in letter , where we read: "then, further, if they continue to drink the red wine i will tell you so." in no. : "when you tell me that it is not possible to make my mother sleep, while she is ill, and drinks no wine." and in letter : "as to what you wish to know about the wine, i tell you that it is red now, but i do not know how much longer it will be so; but i will let you know about it." still further this most wretched wife was moved with a burning ardour for the said priest, as is noted in letters and ; this is usually conceived by lovers only. therefore, since it is undeniable that the carnal love was reciprocal between them, i think it can not be doubted that her departure from the home of her husband and their association through a long journey, prove their adultery. [citations.] in the progress of the journey kisses were given on both sides; of this the witness for the prosecution testifies; but i do not find in the evidence that he saw these at night, as is supposed by the other side; for page asserts "i only saw that at times they kissed each other." and these kisses francesca so strongly desired to give and to receive likewise, that in letter [we read]: "i thank you for the kisses you send me; but if yourself could give them to me, i would hold them dear. i give you as many million more." and in letter : "and giving you an amorous kiss." and in : "i say good-bye with a million kisses." and here and there in the other letters. these render the adultery not at all doubtful, so much so that there are not wanting authorities who assert that when the kiss is proved the adultery may be said to be proved. [citations.] therefore, unless i am very much mistaken, no one who knew what we have recounted could be found so senseless and so weak-minded as not to believe strongly that when they were found in the inn her matronly shame had been tampered with, either during the journey or at night while they were taking their rest, or more probably in the morning while they were enjoying each other's society. but passing over the fact that the priest was clothed in laic garb (pp. and ), which affords no small weight for the proof of the adultery, all further doubts are removed, since they arrived together at the tavern of castelnuovo at half-past seven at night, as three witnesses for the prosecution agree in swearing (pp. , , ). and although two beds were in the chamber, only one indeed did the said priest wish to have made ready, and all night long, behind closed doors, he rested alone with her (if lovers can rest); from this the adultery is proved without doubt. [citations.] this proof indeed becomes all the stronger from the lie of francesca, who asserts that they arrived at the said tavern at dawn (summary, no. , letters f and l). for if no evil had been done she would not have attempted to hide the truth. [citation.] finally, the sentence or decree of this tribunal, which is given in summary, no. , where the said priest is condemned for carnal knowledge of francesca, removes all doubt; because the adultery is thereby rendered infamous, as was proved in our other argument. and though it is asserted that it was in the minds of the lords judges to modify this sentence and to add "for pretended carnal knowledge," yet it never was thus modified. and yet such modification would not have stood in the way after it had reached the ears of the luckless husband that the adultery of his wife had been made manifest and notorious and had been confirmed by the judges' decree. but certainly, even if we are cut off from this proof, their carnal communication remains more than sufficiently proved for our purpose; for we are arguing not for the infliction of the penalty of adultery, but we have deduced the adultery for exclusion of a penalty. [citations.] for it is quite customary that, for a civil purpose, such as divorce or loss of dowry, adultery is abundantly proved by circumstantial evidence. [citations]. nor is it of consequence that some of the stronger proofs are proved by single witnesses; for we are arguing to establish dishonesty and adultery in kind; not for the purpose of condemning the adulteress, but for the defence of the accused. and the reason is very evident, because to excuse a husband from the murder of his adulterous wife after an interval, an exact proof of the adultery is not required, but strong suspicion of adultery is quite abundant, as sanfelicius testifies it was decided (_dec. , num. _). but we are upon firmer grounds, because we not only have strong suspicions drawn from single witnesses, but other finely proved grounds, yes, the clearest of proofs, deduced by the prosecution. very little does it stand in the way of this proof of her guilt that francesca, when near to death, tried to exculpate herself and her lover by asserting that there had been no sin between them; for this kind of exculpation, which is all too much a matter of pretence, might help her companion just as theretofore she had brought blame upon him; and by no other proof might his inculpation have been removed. this would indeed aid her fellow, but not herself. but since she stands convicted by the abovesaid proofs of having broken her matrimonial faith, it would be absurd that an exculpation made that she might seem to die an honest woman, should be of such efficiency as to destroy the proofs of her baseness. [citations.] and what is more horrible, that from the said exculpation, her murderer might be the more severely punished. i have faith, and this helps me to hope, that her soul rests in eternal safety, by divine aid, since she had time to hate her previous life. but no man of sense could praise her testamentary disposition, in which she appointed as her sole heir her son, who, as i hear, was but just born and hence innocent, and who had been hidden away from his father, and which appointed as residuary legatee a stranger joined by no bond of relationship. from these considerations, therefore, it is plain that the adultery of francesca is fully proved. hence according to the opinion of the fisc, her murder, even if committed after an interval, is not to be expiated by the death penalty; not only because of the justly conceived grievance, but because the injury to the honour always keeps its strength, according to the sentiment of virgil in the _Ã�neid_, book i: "keeping an eternal wound within the breast." it is of no force in response to this that he did not kill his wife and the adulterer, whom he had overtaken at the inn of castelnuovo, but that he merely saw to their imprisonment; as if that, after his recourse to the judge, he could not with his own hand avenge his honour. for we deny in the face of all heaven that he could have killed either of them, because he was worn out by the rapid journey, and was so perturbed by the agitation of his mind, that he was seized by a fever. and furthermore he had heard that the said priest was armed with firearms, as he asserted in the prosecution for flight, at a time when his word cannot be suspected, because the murders had not yet been committed (pp. and ). it is also true that the priest was a terrible fellow, according to the witness for the prosecution (p. ), and as francesca herself confesses. elsewhere, the accused speaks of the taking away of an arquebus pointed at the officers, as he himself asserts (p. ). and, furthermore, caponsacchi was all too prompt and too much disposed to resisting, as we read in letter . there, in speaking of the opiate to be given to the domestics, he adds: "if by ill luck they shall find it out and shall threaten you with death, open the door, that i may die with you, or free you from their hands." and the wife, indeed, was unterrified, full of threatening, angered, and even furious, as the outcome proved; since when captured by the posse of the ecclesiastical court, she dared in the very presence of the officers and other witnesses to rush upon her husband with drawn sword. and she would easily have killed him, if she had not been hindered (p. ). he, indeed, weak, as he is, and of insufficient strength, could not have taken vengeance by killing both, or either of them, provided as he was with only a traveller's sword. hence, as he was not able to kill them, he saw to their imprisonment in the confusion of his mind, in order that he might prevent the continuation of his disgrace, and thus might hinder their future adultery. but, indeed, even if he could have killed them, and did not do so, he would be praiseworthy; for up to that time the adultery had not been made notorious by the sentence of the judge, and only strong suspicions of it were urging him on. but as for the recourse to the judge, whereby it can be claimed that he renounced the right to kill his adulterous wife, which we deny, i pray you note that the tribunal acted prudently in placing francesca in the monastery, that she might be kept more decently than in a prison. then when it received the attestation of the physician as to her condition, lest she might be kept there destitute of necessary aids, and so might undergo punishment in the very course of events (which is everywhere avoided), after obtaining the consent of abate franceschini, brother of the accused, the court permitted her to be placed in the home of her parents with the warning to keep that home as a prison. but i cannot commend any one, whoever he may be, who tried to get francesca from the monastery under the false pretence of ill health, since he could legitimately and with more decency have succeeded in his intent by laying bare the truth, namely her pregnancy. but this was done for no other reasons than these: either that the son might be hidden away from count guido, since the law presumes that he was born of his legitimate father, although his wife had shown herself incontinent; or else francesca, believing that the child was conceived of some one else, possibly was trying to hide from her husband the fact of her pregnancy. and now in the meantime, let it please my most illustrious lord to turn his eyes toward arezzo and for a little while to think of count guido stained with infamy, when the decree of condemnation for adultery reached his ears. the adulteress was still unpunished, and he was ignorant of the fact that she could not be punished, owing to her supposed ill health, and that during her pregnancy, which she had so carefully hidden from him, she was unsuited to the vengeance of the sword. furthermore, when he saw that francesca had gone back to that very suspicious home of pietro and violante, who had instilled francesca with dishonesty, had repudiated her, and had professed that she was the daughter of a harlot, he lost all patience, as is evident from the deposition of blasio (p. ), where we read: "but still further, she had been received back into the home, after she ran away from guido, although the latter had put her in a monastery." this change drove to desperation her luckless husband, who was at least an honourable man. therefore his recourse to the judge ought not to increase the penalty for him. we do not deny that abate franceschini had given consent to the removal of francesca to the home of pietro and violante (in order that we may yield to our respect for my lord advocate of the fisc), but only on verbal representation, for i have not been able to see it in writing. but, for our proposition, this does not affect count guido, since it is not made clear that he was informed of such consent, and thus far the fisc merely presumes that he had been informed by abate franceschini, his brother, of this consent. [citation.] we are compelled to affirm that this knowledge is not to be presumed as is shown below, or at the very worst there is present only presumptive knowledge. and i do not think that on this kind of merely presumptive knowledge the death penalty can be demanded, nor can count guido be condemned, since he has neither confessed nor been convicted of such knowledge: chapter _nos in quemquam_, where we read: "we cannot inflict sentence upon any one unless he is either convicted or has confessed of his own accord." indeed, what if count guido had acknowledged that he had written the consent furnished by the abate, his brother, since it had no special authorisation for that particular matter; nor a general authorisation to conduct litigation, but only to receive moneys taken from himself by francesca, as is to be seen (p. ). by exceeding the limit of his power, abate paolo would have exasperated the mind of guido; for the luckless man was already burning so with rage at the temerity of francesca, pietro, and violante, that he was almost driven, i might say, to taking vengeance. he had put this off as long as he had any hope that he might have the marriage annulled because of mistake concerning the person married. for he was ignorant of the point of canon law that error as to the nature of the person contracted does not render a marriage null, but only an error as to the individual. [citation.] nor does it amount to anything that francesca, at the time she was killed, was under surety to keep the home as a prison, as if she were resting in the custody of the prince. for, however that may be, even if the accused had killed francesca to the offence of the prince, yet since he wished to recover his honour and to remove with her blood the unjust stains upon his reputation, for this particular reason the aforesaid custody is not to be given attention, nor does it increase the crime; as in the more extreme case of one injuring a person having safe-conduct from the prince, farinacci affirms in making a distinction [citation] where knowledge thereof is not to be presumed. furthermore, when we speak of custody we should understand it to apply to public custody and not to a private home as was proved in our other argument. nor is the response enough that this would hold good in the one under custody, but not concerning the custodian, violante; for i do not know any probable distinction between the two, since both cases may suffice for escaping the penalty; nor is any stronger reason to be found for the one than for the other. and indeed a third case would be more worthy of excuse, of one who broke this kind of custody, when knowledge thereof was not proved. because such an offence might arise under such custody, just as one who had killed a person under bann, but ignorant of that bann, excused himself. [citations.] if therefore count guido is not to be punished for murder of his wife, for the same reason he cannot be punished for the murder of pietro and violante, because these murders were committed for the same cause, _causa honoris_. for at their instigation, francesca found her lover, and still more, in order that they might disgrace guido, they did not blush to declare that francesca had been conceived illegitimately, and had been born of a harlot. this greatly blackens the honour of an entire house, as gratian observes [citation]; for the daughters of such are usually like their mothers. then also, as i have said above, the accused burned with anger when he had notice of the return of francesca to their home (p. ), and the following. and alexander proves this in his confession where he says (p. ): "so that he had to kill his wife, his mother-in-law, and his father-in-law: because the said mother-in-law and father-in-law had a hand in making their daughter do evil, and had acted as ruffians to him." this following fact makes it all the clearer, because on the fatal evening when they were slain, at the knock on the door, and as soon as violante heard the much beloved name of the lover, straightway she opened it. and thus she showed, unless i am mistaken, what removes all doubt that pietro and violante were not at all offended with the love affairs of their daughter and her lover. it is all one, because we are compelled to acknowledge either [first] that the comparini had done new injury to his honour by receiving her into their home after they had declared that she was not their daughter, and after her adultery was clearly manifest, and hence there should be departure from the ordinary penalty. [citation.] for just indignation, when once conceived, always oppresses the heart and urges one to take vengeance. [citation.] or else [secondly] we must acknowledge a cause of just anger continued, and indeed was increased, which is quite enough foundation for asserting that the murders were committed incontinently. [citations.] since, then, from the confession of count guido as well as from that of his associates, and since from so very many proofs brought forward in the trial, it is evident that guido was moved to kill them by his sense of injured honour, in vain does the fisc pretend that for some other remote reason he committed the crimes. for, to tell the truth, i find no other cause which does not touch and wound the honour, if we only bear in mind what guido has said in the trial (pp. and ): namely, that the comparini had arranged the flight of francesca and had plotted against his life. this alone would be enough to free him from the ordinary penalty. bertazzolus and grammaticus [citation], testify that a man was punished more mildly who had had one who threatened him killed, though the threats were not clearly proved. [citations.] "and the death which he had threatened fell upon himself, and what he planned he incurred," and also: "there is no doubt that one who had gone with the intention of inflicting death seems to have been slain justly." another cause of the murder alleged by the fisc is the lawsuit brought to annul the promise of dowry. upon this point a complete and a very skilful examination was made by the other side, and because of this it was pretended that he had incurred the penalties of the alexandrian constitution and of the banns. but this pretence in fact soon vanishes. for if we look into it well we shall find, without difficulty, that a cause of this kind is no less offensive to the sense of honour. for the ground on which pietro had attempted to free himself from the obligation to furnish the promised dowry was this solely: that francesca was not his own daughter, but the child of an unknown father and of a harlot. every man, however, well knows whether this kind of a declaration would wound the reputation of a nobleman. whether or not a pretence of this kind could have found a place for itself before we had the confessions of count guido and his companions, as i have said above (for then the fisc might have been in doubt how guido could be moved to kill her), yet thereafter it was clear from the confessions of them all that the sense of injured honour had given him the impulse, and had even compelled him to the killing, as count guido asserts (p. ) where we read: "to inflict wounds upon them, inasmuch as they had injured my honour, which is the chief thing." vain is it to inquire whether he had killed them for some other reason, because, as it was clearly for honour's sake, the fisc never could prove that they were killed on account of the lawsuit, and not on account of honour, as is required for the incurring of the penalty of the aforesaid bull. [citation.] these statements are apt also as regards the murder of francesca, who had sought a divorce. for if she had made pretence of being separated from him for any other reason, and if her dishonour were not perfectly clear, then indeed there might be room for the alexandrian constitution. but since wounded honour gave occasion for the murder, we are far beyond the conditions of the alexandrian constitution. otherwise a very fine way would be found for wives to act the prostitute with impunity. for if it were possible, after adultery was admitted, to bring suit for divorce, they would find a safe refuge to escape the hands of justly angered husbands, and would be rendered safe by the protection of the said bull even though the divorce was not obtained and though the husbands had been offended because of their dishonour. but still less can such capital punishment be inflicted upon guido on the pretext that he assembled armed men, contrary to the rule of the apostolic constitutions and banns. for whenever the question is whether a husband may assemble men to kill his adulterous wife, we are still beyond the conditions of the constitutions; for they have place whenever men are assembled for an indeterminate crime, and crime does not follow; then indeed the provisions of the bull are applicable. but whenever men are joined together to commit crimes, and these actually follow, attention is directed to the end for which the men had been assembled, and the punishment for that is pronounced, nor is there any further inquiry concerning the beginning (that is, the assembling), as i have proved in my other argument. and i now add another citation [citations], where after the question was disputed, he asserts: "but certainly, notwithstanding what has been said above, in the current case, i do not believe there should be any departure from the decision of so many men, whom we may well believe have considered and written the entire matter with maturity and prudence for our most sacred lord clement viii." and at the end of this addition, it is testified that the apostolic chamber had so decided it at the order of the said pope. [citation.] this is also proved by the banns of my most illustrious lord governor, chapter , where they impose a penalty for assembling men for an evil end, if the evil end may not have followed. but they decide nothing when the crime for which the men had been assembled had been put into execution, because in this case the penalties for assembling cease and only the penalty for the crime committed is inflicted, as was said above. and that the assembling of men for the purpose of recovering one's reputation does not fall under the penalties of the apostolic constitutions (see _farinaccius_, _cons. _, _no. _). finally, the matter of carrying prohibited arms is still left for consideration. even if some authorities have asserted that this is not to be confounded with the principal crime, yet the contrary opinion is held by the majority; for the purpose is to be considered, which the delinquent chiefly had in mind. so bartolo holds in our very circumstances. [citations.] and on the point that one killing for honour's sake, with prohibited arms, is still to be punished more mildly, matthæus testifies that it has been so judged. [citation.] this also holds good in the more extreme case of several crimes, which can easily be committed separately and which tend toward different ends; yet, if they are committed at the same time and for the same end, the punishment only for the crime which was chiefly in mind is imposed. thus, if one wishing to commit theft climb over the walls of the city, even though he could commit that deed without the crime of crossing the wall (which is a very grave crime, according to farinaccius, _quaest. _, _no. _), even then only a single penalty, namely that for theft, is inflicted, as the one chiefly in mind; and this is a little harsher than that for crossing the walls of the city, but is not of utmost severity. [citations.] nor does it escape my notice that the banns of our most illustrious lord governor, chapter , seem to settle the question by deciding that the punishment for carrying arms ought not to be confounded with punishment for the crime committed therewith. nor do i fail to see, still further, that these banns do not include one of the companions, who was a foreigner and not of that district. but since by common law these banns receive a passive interpretation whenever arms are not borne for an ill end, and then some crime is committed with them (because the delinquent did not have in mind the crime which he committed), he is punished for both crimes, because at divers times he committed different crimes. but when any one bears prohibited arms with the purpose of murder, and then commits the murder, the chief crime of homicide, in view of which he bore the arms, is considered and the penalty for murder is inflicted, but not that for carrying the arms. [citations.] i beg you note that this crime in question is made important from the fact that those three who had no fear of ill, but who ought by all means to have feared, were slain, and not because of the kind of arms with which they were slain. the number of the victims, and not the instrument of their death, excited astonishment, and it would have been the very same if they had been slain with the longest of swords, or with sticks, or with stones. therefore it would indeed be a very hard matter that the fisc should be aflame over these murders, and not being able to demand the death penalty for them, should demand it for the carrying of arms. but beside this, count guido denies expressly that he owned, carried, or kept arms of unlawful measure. and although it is asserted by the four associates that at the time of the murders guido had in his hands a short knife, and had given the same kind of arms to his companions, yet these could not doom him to the ordinary penalty. thus farinaccius and others affirm after this matter has been well discussed and the contrary opinion confuted. [citations.] nor does he deny that he had on his person a dagger which was entirely lawful. but he did not have it with him at the murder, nor did he carry it for the murder, but only to defend himself if he should find in the aforesaid home outsiders ready to use force against him. and that was permissible to him; for there is ample right to bear arms of this kind throughout the ecclesiastical state, and (i may boldly add) even in the very city. because no mention is made of the city, although some places are excepted; according to that very true axiom: "the exception proves the rule in what is not excepted." [citations.] and he could the more readily believe that it was permissible for him to do so, because he had enemies in the city who threatened him there and made plots against him, as guido himself says; and therefore the bearing of arms of this kind was more necessary here than elsewhere. nor is it to the point that, because it is claimed he had killed with forethought, the privilege of bearing this kind of arms should not be granted him. for aside from what is said above and in the other argument establishing the fact that the aforesaid crimes were "for honour's sake," they cannot be said to be committed "after an interval." the objection might hold good if he had used the arms in the murder, but as this is not established, it does not seem possible to deny him the right to carry the arms. in any case, although strictly speaking he could be said to have done the killing when armed with the said arms, yet he should not be punished with the extreme penalty of death. in _caballus_, _case _, _no. _: "yet in fact in these cases, i have never seen the death penalty follow, but by grace it is commuted to a milder penalty." finally, he cannot be said to have incurred the penalty for prohibited arms from the fact that he was present at the murders committed by his associates with such arms; because the penalty of this kind which is due to one furnishing the said arms does not extend to the helpers and assistants. [citations.] i do not speak of domenico and francesco, because these last two, as foreigners, are not bound by our banns. but all matters fight for all of them, and every single ground for the diminution of the punishment, which favours count guido, also favours them all; since accessories are not to be judged on different grounds from the principal, as i have shown in my other argument. there i cited, not the authority of one or another doctor singly, but the decisions of the highest magistrates. clar also testifies that this opinion has been observed in actual practice. (§ _homicidium_, _sub no. _). but i earnestly beg that my most illustrious lord will be pleased to consider with kindly countenance and untroubled vision that count guido did the killing that his honour, which had been buried in infamy, might rise again. he killed his wife, who had been his shame, and her parents, who had set aside all truthfulness and had repudiated their daughter. nor had they blushed to declare that she was born of a harlot, in order that he might be disgraced. they also perverted her mind, and not merely solicited, but even by the strength of her filial obligation compelled her to illicit amours. he killed her lest he might live longer in disgrace, loathed by his relatives, pointed out by the noble, abandoned by his friends, and laughed at by all. he killed her, indeed, in that city which in olden days had seen a noble matron wash away the stains of shame with her own blood--stains which against her will the son of a king had imposed upon her. and thus she expiated the violent fault of another by her own death. (see valerius maximus and titus livius.) this city also saw a father go entirely unpunished, and even receive praise, who had stained his hands with the murder of his daughter, lest she might be dragged away to shame. [citations.] so much did the fear of losing his honour weigh upon his heart, that he preferred to be deprived of his daughter rather than that she should continue to live in dishonour, even against her own wish. count guido did the killing in their own home, that the adulteress and her parents, who were aware of her crime, might find out that no place nor refuge whatsoever was safe from and impenetrable by one whose honour had been wounded. he killed them lest deeds of shame might be continued there, and that the home which had been witness of these disgraces might also be witness of their punishment. he killed them because in no other way could his reputation, which had been so enormously wounded, find healing. he killed them that he might afford wives an example that the sacred laws of marriage should be religiously kept. he killed them, finally, that either he might live honourably among men, or at least might fall the pitied victim of his own offended honour. giacinto arcangeli, _procurator of the poor_. [file-title of pamphlet .] _by the most illustrious and most reverend lord governor of the city in criminal cases_: _roman murder-case._ _for count guido franceschini and his associates, prisoners, against the fisc._ _new memorial of law, by the advocate of the poor._ _at rome, in the type of the reverend apostolic chamber, ._ romana homicidiorum [pamphlet .] most illustrious and most reverend lord: the confessions of count guido franceschini, and of domenico gambassini, francesco pasquini and alessandro baldeschi, his companions, are null; and therefore they should be given no consideration, as they issued under fear of the rigorous torment of the vigil, unjustly decreed against them. [citations.] and this is true even though they still persevere in the same confessions. [citations.] for as we have said in our past argument (which may be reassumed here by favour), the constitution of paul v., of sacred memory, issued for the reformation of the tribunals of the city [citation], commands that this torture be not inflicted except under two concurrent circumstances. one of these is that the accused be under the strongest of proofs, and the other that the crime be very atrocious. and the authorities alleged in my argument, § _quatenus_, etc., testify that it has been so practised. nor indeed can the asserted [discretionary] powers of this tribunal give support; because, whatever they may be, they have no place unless the crimes are punishable by death. raynaldus [citation] gives this reason: whenever the defendant should not be condemned to death, he also should not, for the purpose of getting confession from him, be exposed to torture which might cause death, as it almost caused the death of alessandro, who fainted dead away under two turns at the same torture. but the crime, which has been imputed to count guido and his helpers, and which they themselves have confessed, is murder neither of the first nor of the second degree, as was fully proved in my past argument. and indeed since count guido was moved to kill or to have killed both francesca pompilia, his wife, and pietro and violante, his parents-in-law, because of his sense of honour; namely, on account of the adultery which francesca pompilia committed with their conspiracy and aid, this fact relieves from the penalty of death, not merely himself (according to the texts and authorities alleged in my said argument) [citations], but also his helpers (according to the authorities likewise alleged in said argument). [citations.] gabriel states: "and much less ought those to be punished with death, because if we will only examine the common opinion of wise men, just anger may excuse from a graver penalty than this; for according to the gracchian law, code concerning adultery, even those who are called and led to the crime should likewise be excused." aside from what may be claimed in this present state of the case, that the plea of injured honour is not established, the decree in condemnation of the canon caponsacchi for the said adultery issued in this tribunal, september , last past, and given in full in our summary, no. , makes the matter clear and manifest. [citations.] for it is there said: "joseph maria caponsacchi, of arezzo, for complicity in the flight and running away of francesca comparini, and for carnal knowledge of the same, has been banished for three years to civita vecchia." nor can these words be said to be merely the title of the case, which does not make any one guilty, as my lord advocate of the fisc supposes; but the very decree and the title of the case, as seen by me in the original process, was that which follows: _aretii in etruria fugæ a viro_. but, in brief, the said canon was condemned merely to the said punishment because he was a foreigner and had committed his crime outside of this state; in such case he should be dismissed merely with exile. [citation.] nor is it true that the court receded from the said decree and still less that a modification of it was demanded. for we have no other fact than that for the purpose of giving some little indulgence to the still asserted honour of the wife and to the decorum of the said canon, for which the procurator of the poor, their defender, kept sharply and incessantly urging, in the command for imprisonment, instead of the words of the said decree, these other words were applied: _pro causa de qua in actis_. these words do not imply the correction of the preceding words, but indeed the virtual insertion of all the acts, and consequently of this same decree also. [citations.] and this is all the more true because the said decree could not be changed unless both sides were heard; which, as i remember, was the response given to the said procurator when he insisted upon the said modification. [citations.] but why should i now insist on former matters when there is such conclusive proof of the adultery and further dishonour of the said wife from the many strong reasons deduced in the present stage of the case, and well weighed by my honourable colleague, the procurator of the poor, in his customary excellent manner? (i do not here repeat them, that i may avoid useless superfluity.) hence there is left no room for doubt as to the outraged honour, which indeed impelled count guido to the commission of crime. for it would be quite enough that a cause of this kind be verified, even after one has committed the crime, as bertazzolus advises on this point. [citations.] still further, there is no need now to insist on past matters because count guido has stated the plea of injured honour not merely against his wife, but against his parents-in-law in his confession (especially page ): "thereupon followed her flight, which was so disgraceful, not merely to my house, which is noble, and would have been so to any house whatsoever, even if of low estate. she made this escape by night with canon caponsacchi and his companions. in the progress of her flight along with the driver of the carriage, she was seen by the said driver, kissing and embracing the abovesaid canon. still further, i have found out that they slept together at foligno in the posthouse and then again at castelnuovo. by such proof, she stands convicted as an adulteress, not merely for this, but for other like excesses, which i have since heard that she committed in arezzo with other persons." and page , where we read: "and when the said santi was asked whether he would give ear to offering an affront to the comparini, because of my honour and the plots they had made against my life, alessandro responded that he would do it, and if some one else were necessary he would find him. accordingly, after a few days, i received in my home biagio, who has been twice named above, in company with the abovesaid santi, and he said that he also would give ear to it, as being specially a question of my honour and the contrivance against my life." and at page : "and while we were staying in the same vineyard, that is in the house within it, we spoke of various matters and particularly of what was to be done, namely of the affronts to be offered to the comparini (that is to pietro, violante, and francesca, my wife) and of wounding them because they had taken away my honour, which is the chief thing, and had also plotted against my life." and at page , near the bottom, we read: "and i would have so much to say that one might write from now till to-morrow morning, if i wished to tell all the trouble and expense i have suffered from the said comparini. but all this would amount to nothing, if they had not touched my honour and plotted against my life." and page : "the santi above-named was a labourer of mine at my villa of vittiano, and consequently was informed of all these troubles i had suffered at the hands of the said comparini. he also knew of the very indecent flight made by my wife in the manner elsewhere told. the abovesaid alessandro then began of his own accord to seek me out and did find me, so that he might give ear, in the event that i should wish to avenge my honour and the plots which they had made against my life." and page : "and she together with canon caponsacchi was overtaken by myself at castelnuovo, where they were arrested by the officers and conducted to these prisons. in the court, many a time i laid stress on the crime of her supposed conception in order that they might be punished. i never having seen what would be considered expedient in an affair of such importance to my honour, have been obliged to take some resolution for recovering it, because the comparini, with greatest infamy, had transferred to me their own ignominy." and page : "and what i said to alessandro, biagio, and domenico, i also said to francesco once when he, knowing the offences against my honour which i had suffered, asked me if i were ready to give a beating to my said wife. and i then replied to him that she deserved not merely a beating, but death." such a confession should be accepted with its own qualifications, for the fisc cannot divide and detach this from it (according to the usual theory). [citations.] this is undoubtedly true, when, as in the present case, one is arguing for the infliction of the ordinary penalty, whatever may be said, according to some authorities, for the infliction of an extraordinary penalty. [citations.] ludovicus extends this conclusion to all qualified confessions in any kind of crime. this is true especially when the qualification is not merely propped up in some way, but is conclusively proved. [citations.] for beside the said decree, and the other considerations above, we have his fellows in crime especially swearing that their services were required by count guido for committing crime in his very company for the abovesaid reason. especially is this the case with blasio agostinelli, page : "signor guido told me that his wife had fled from him in company of an abate, and had carried away some money and jewellery. he led me into the very room where she had robbed him of the said jewellery and money, and told me that he wished to go to rome to kill his wife, and that he wished that i and the said alessandro would go with him," etc. and page : "at the above time the said guido told me that his wife, for the purpose of fleeing securely with the said abate, and that he might not perceive it, had mixed an opiate in the wine for dinner to put himself and all the rest of them to sleep. he also said that he was in litigation with his father-in-law, who had not merely sworn that the said wife was not his own daughter, but still further had received her back into his home, after she had run away from her husband, although he would have put her in a monastery after he overtook her at castelnuovo during the flight." and alessandro baldeschi (page ): "the said guido in the presence of myself, as well as that of biagio, francesco, and domenico, told me that he ought to kill the lady, that is, his wife, who was here in rome, to recover his own honour; and also to kill the father and mother of the said wife because they had lent her a hand in the insult she had offered to his honour." and page : "he told us also, in the presence of the keeper of the vineyard, that he was obliged to kill his wife, his father-in-law, and his mother-in-law, because the latter had lent a hand to their daughter in her ill-doing, and had acted the ruffians too, and because the said guido also declared that these same people, whom he had to kill, had wished to have himself, that is guido, killed." nor can the plea of injured honour be excluded by the attestations of those who afforded assistance to francesca pompilia even up to the time of her death: for they attest that she made declaration that she had never violated her conjugal faith. these assertions are merely testimony given outside of a trial, and do not demand belief. [citations.] and more especially as they were extorted and begged (while the suit was pending and the other side was not summoned), by the heir of the same francesca pompilia, for avoiding the prosecution by the monastery of the convertites, which was laying claim to the succession to her property on account of her dishonesty. such shame would cause all of her hereditary property to be sequestered and judicially assigned to the said monastery by law. [citations.] and this objection to their testimony is especially true because some of the witnesses who swear as above are beneficiaries of the same francesca pompilia, so that they might be swearing for their own advantage. for if her dishonour were substantiated, her property would devolve upon the said monastery, and consequently they would be shut out of their legacies. [citations.] and however far these attestations may occasion belief, a declaration of this kind serves to no purpose, because no one is presumed to be willing to reveal his own baseness. [citations.] so likewise francesca pompilia should not be believed, especially when testifying outside of a court and without oath. [citations.] much less are the aforesaid witnesses to be believed, lest more credence be given to hearsay evidence than to its original. [citations.] nor can it be said that no one is presumed to be unmindful of his eternal safety; for all are not presumed to be saint john the baptist. [citation.] especially when the argument is concerning the prejudice of the third. [citation.] and still more so when the argument is for punishing more gravely the enemy of the declarant. [citations.] and therefore, as the plea of injured honour is substantiated, it makes no further difference that the said murders were committed after an interval, according to what we have very fully affirmed in our last argument, § _nec verum est_, even down to § _prædictis nullatenus_. there it was shown that this is the general opinion of authorities, and in accordance therewith judgment has been given from time to time not only in the sacred courts, but also in all the other tribunals of the world, as matthæus well observes, etc. [citation.] nor can there be any departure from this opinion in the present case on the ground that count guido did not kill his wife in the act of seizing her in her flight with her lover, but was indeed content to carry her before the judge as an adulteress. for it would not have been safe for him to kill her then; because he was alone and she was in company of the said lover, a daring young fellow, strong, and well armed, and accustomed to sinning. and what is more, this lover was prompt and well prepared to make resistance, lest his beloved amarillis should be snatched from him. likewise she was prompt and ready to hinder her husband even with a sword she had seized and drawn, lest her beloved mirtillo might be offended. guido should not therefore be considered to have spared her nor to have remitted his injury. but lest she might escape into more distant parts where he could have no hope of the due vengeance, his just and sudden anger then counselled him to have her arrested by officers, so that he might kill her as soon as possible; and when afterward a suitable occasion arose, if he killed her, it should be considered as if he had slain her immediately. [citations.] and, generally, whatever is done after an interval may be said to be done incontinently, if done as soon as a chance for doing it was given. [citations.] but so far is the law from believing that this kind of injury is remitted by a husband that it rather believes that the spirit of vengeance always continues in him. therefore it comes about that a wife may be held responsible for looking out for herself; so much so, indeed, that her death which follows thereupon may never be said to be treacherous. [citations.] muta speaks of the case of a husband who had his wife summoned outside of the city walls by his son, in order that he might kill her safely, and yet the husband was condemned only to the oars for seven years. this also makes some difference in the case, that certain authorities hold that a husband may indeed hide his wife's baseness for the purpose of taking vengeance upon her safely later on. [citations.] likewise he may have his wife hide his disgrace for the purpose of taking vengeance securely upon the one who wishes to offend her modesty, according to the very famous council of _castro_ , _lib._ . and this is all the more to the point because count guido was censured by the procurator of the poor himself, the defender of francesca and canon caponsacchi, for this appeal to the judge. [citations.] we have alleged many of these authorities in our past argument, § _et hæc nostra_: for they unanimously assert that husbands are considered vile and horned, if they do not take vengeance with their own hands, but wait for that to be done by the judges, who themselves ridicule and laugh at them. therefore it is no wonder if the luckless husband, after he had made the said recourse to the judge, as the foolish heat of his wrath suggested to him, wished to avenge himself for his lost honour. for he sinned that he might shun the censure of the vulgar and learned alike, and that he might not add this infamy also to his lost honour. nor is it at all to the point that the said count guido, in his confession in one place, beside speaking of his injured honour, also mentions the plots aimed at his life; because the force of honour was far the stronger in his mind, as he himself asserts (page ): "in consideration of the fact that they had taken away my honour, which is the principal thing." nor ought any consideration be given the other cause; because, as it is so much weaker, it should be made to give way to the aforesaid reason, as was proved in our former argument, § _et in omnem casum_, where for another purpose we have adduced matthæus [citation], who is speaking in these very terms. and so far as we desire to give attention to this other cause, it likewise is sufficient for escaping the ordinary penalty. [citations.] the fisc acknowledges the relevance of the abovesaid matters; he therefore has recourse to the circumstances attending the crime, namely, the assembling of armed men, the lawsuit going on between count guido and the comparini, the prohibited arms, and finally the place where the crime was committed. for francesca pompilia was detained in the home where she was killed, as a prison. but a response is easy because such circumstances can indeed somewhat increase the penalty of the principal in the crime, but not so much as to raise it to the highest degree, in such a way that count guido and his associates should come to be punished with death. for we find it decided in these circumstances as quoted by muta [citation]: "a decision was therefore made in view of the case in general, march, , before his excellency, wherefrom the ill manner of killing her was evident; for he had her summoned by her son, and afterward her body was discovered, which the dogs had eaten outside of the walls. leonardus was therefore condemned to the royal galleys for seven years." and sanfelici [citation] says: "and although some of them were condemned to banishment, it was because of their mutilation of the privates, a crime for which the fisc claimed they ought to be punished by the penalty of the _lex cornelia de sicariis_." and matthæus [citation] says: "when the matter had been more carefully considered in the council, it was decided that the husband had proceeded too treacherously in pretending absence, in taking his brother with him, and in killing with prohibited arms; because merely by the use of firearms a crime is rendered insidious with us, etc. and it was accordingly decided that, because of this excess, he should be condemned to the penalty of exile for four years and to the payment of ducats." and this at the stage of appeal was confirmed [citation] where we read: "and thus it was decided in the face of the facts proposed in condemning francesco palomi to the penalty of the galleys for ten years, etc., from the aggravating qualification of firearms. to the same penalty, antonio alvarez was condemned, who had deliberately killed his wife because she was playing him false, etc. the penalty was increased because he was judged to have omitted this earlier, since he did not complain of mere adultery, but of her living as a strumpet. and she could not do this without the indifference and connivance of the husband." and our reasoning is manifest, because it cannot be denied that count guido and his associates committed all the aforesaid crimes on the same ground of injured honour. because just as this excuse should be considered sufficient for escaping the ordinary penalty for murder, so likewise it should be considered sufficient for avoiding the other punishments whatsoever, appointed in the apostolic constitutions against those committing other crimes expressed in the same; as the principal purpose of the delinquent is always to be attended. [citation.] so it was declared on this point for the purpose of avoiding the penalty inflicted in the th constitution of sixtus v. [citation], against those who assembled armed men, whenever these men were evidently assembled for the purpose of committing some other crime, such as breaking prison and freeing those detained therein. and three very celebrated judges of the sacred court, namely coccini, blanchetti, and orani so decided. their decision is included among others gathered by farinacci [citation], and he testifies that it was so decided in the full chamber, in which the case was proposed and examined at the order of clement viii. of sacred memory. nor does what he wrote later on to the contrary in aid of the fisc, of which he was then advocate, stand in refutation; spada. [citation.] for this opinion of his was refuted clearly and rejected on the most substantial of reasons and arguments, [citations.] and in such conditions, for the purpose of avoiding the penalty of the banns or apostolic constitutions prohibiting the carrying of arms, i have alleged many authorities in my past argument, § _neque plures_ [neque vero], and above the rest, policardus, etc. [citation], who fully examines the matter. my honourable procurator of the poor gathers together others in his present argument, § _remanet tandem_. to these i add, caballus [citations], where it says that preparatory acts are to be included with what was prepared, and he testifies that it was so decided by the sacred council of naples. likewise, for the purpose of avoiding the penalty set for those killing one detained in prison, and so remaining in the custody of the prince, i have cited many authorities in my past argument, § _similiter nec aggravari_. to these i now add. [citations.] nor does it make any difference that policardus, in the place cited, and some of the other authorities recently alleged speak of homicide committed in a quarrel or for self-defence. for the attendant circumstance of a quarrel relieves one committing crime from the ordinary penalty of the crime only in so far as it overlooks the crime in one who, when provoked, wished to be avenged (as ulpian says), and insomuch as one swept away by a just indignation is not in the fullness of his intellect. [citation.] but both of these reasons without doubt stand in favour of the husband or of any one else committing murder for honour's sake [citation], even if they do so after an interval. [citations.] and in these very conditions, one killing an adulterous wife after an interval is excused because of just anger, which causes him not to be in the fullness of his intellect, etc. [citations.] ulpian [citation] also says: "he ought to be angered with a wife who has violated his marriage with her, and his wrath should spring from indignation for contumely when received, and his nature should arise so that he would drive her from himself in whatever manner he could." "for it is more difficult to restrain one's anger than to perform miracles," as st. gregory says. [citation.] the other authorities, indeed, who speak of persons committing murder in self-defence with prohibited arms or in prisons should likewise be in our favour. for the defence of honour in the case of men of good birth, especially of nobles, is to be likened to the defence of life itself. [citations.] and indeed it surpasses life, according to the words of the apostle in his first letter to the corinthians, chapter : "better were it for me to die than that any one should deprive me of my glory." and st. ambrose: "for who does not consider an injury to the body, or the loss of patrimony, less than injury to the spirit or the loss of reputation?" and the third philippic of cicero: "we are born to honour and liberty; either let us keep them, or die with honour." [citations.] so that he who spurns his own honour, and does not see to regaining it by vengeance, differs naught from the beasts. [citations.] indeed he should be considered even more irrational than the very beasts, according to the golden words of theodoric. as quoted by cassiodorus, which we have cited in our past argument, § _nec verum est_. [citations.] then as to the lawsuit going on between count guido and the comparini as regards the fraud about the birth, beside what was said recently, i pray that it again be noticed that the constitution of alexander does not enter where some provocation has arisen from the one injured, as farinacci well affirms [citation] in following a decision of the rota, which he places at the end of his counsel. and we have weighed this heretofore in our past argument, § _absque eo quod_. such provocation in the present case resulted from the injury which the said comparini inflicted upon this same count guido while the lawsuit was pending, because of their complicity in the said flight and adultery committed by their daughter on that occasion. the other lawsuit which francesca pompilia made pretence of bringing against count guido, for divorce, might be omitted. for beside the considerations offered by my honoured procurator of the poor in his present argument, § _quæ etiam aptantur_, this suit was brought illegally, because the warning of it, as i suppose, had reached only abate paolo, the brother of count guido, who had no authority in this matter. and this is true especially because it is not proved that the same guido had any knowledge of that suit brought, as is now pretended. as to blasio agostinelli enough has been written in the former argument, since he has not been examined anew, and in his former examination he confessed only that he was present at the said murders, but that he had no hand in them. so the more rigorous opinion of caballus cannot apply to him, who said that such helpers are not immune from the penalty of murder whenever they kill any one with their own hands. for the opinion of this author was proved by us to be erroneous, in our past argument, § _quidquid in contrarium_. i might wish to add something to what has been said in the past argument as to the alienage and minority of domenico and francesco; but it is not yet very clear under what law the fisc pretends that they miss these. therefore i will rest satisfied with this response, believing certainly that it will not chance that my lord advocate of the fisc may fashion his own allegations and also respond to ours without communicating them to me, as happened in the past argument very greatly to the astonishment of myself and of others. for he and i both ought to seek the truth and to be advocates of that, as both of us are officers of the prince according to the considerations of rainaldi. [citation.] who indeed desires that anything else than justice be administered, and especially when dealing with poor imprisoned wretches? in their cause, piety should triumph, because they are the treasure of christ. [citation.] desiderio spreti, _advocate of the poor_. an account of the facts and grounds of the franceschini case [pamphlet .] the property of pietro comparini did not amount to more than the sum of , or , scudi, subject to a reversionary interest, coupled likewise with the obligation to compound a good percentage of the income. he, therefore, had to live sparingly to avoid being reduced to a state of destitution, there being a bar against his use of the capital and of a part of the income. he was also too indulgent to his stomach and was given to laziness, and furthermore had taken a wife with a very small dowry. then lawsuits came upon him, the income of his bonds was reduced, and other misfortunes befell him, so that he was brought down to a state poor and miserable enough. so much so that he was several times arrested for debt and, after making a statement of his property, received from the papal palace secret alms each month. when he found himself in such straits, he decided to marry off francesca pompilia, his daughter, to some person who would undertake the burden of supporting him together with his wife, violante peruzzi, who was a very shrewd woman and of great loquacity. it was with her advice that he had undertaken the affair, and the marriage with count guido franceschini was considered suitable. for when the latter had conducted his new wife and her parents back to arezzo, his own country, he might be able to find some opportune remedy for their necessities, by the assistance in rome of abate paolo franceschini his brother, an active and diligent man; thereby putting in order the patrimony of pietro which had been sequestered and tied up by his creditors. therefore, when the dowry had been set at twenty-six bonds, with added hope of future succession to the rest of his property by virtue of the reversionary interest to which the wife was entitled, the bargain was accepted. this bargain was advantageous to pietro and his wife in freeing them from the straits in which they found themselves. and it was likewise advantageous to the franceschini, as the diligence of the abate, and some temporary expenditure by their house well attests. for they might well believe that they would gain in time the aforesaid property either entire, or little decreased. such from the beginning were the mutual purposes of that unhappy marriage. from this fact one may see how slight a pretext there is for saying that count guido, while making the arrangements, had tricked pietro and his wife by giving an inventory of property with an annual income of scudi, which income was later proved to be much less, because the primary end for which the marriage was concluded might very well have been obtained by showing a much smaller income. for it is known that when this inventory was shown by violante to pietro comparini, he said on seeing it: "ho, ho, it would have been enough for me if it had been only half as much." and indeed it would have been the greatest stupidity in pietro to have given his daughter a husband, upon the simple inventory of a foreigner and without finding out if this were true, so that the real impelling cause of the marriage had been the resources represented in the said inventory. not even on the mere grounds of propriety and civility may guido be reproved; because when the said inventory was produced by pietro in the trial, the abate paolo franceschini was very much surprised at it, so that he took his brother to task about it by letter, and guido replied that he had done it at the instigation of violante. for she desired the completion of the marriage, and, seeing pietro irresolute, she induced guido to give the abovesaid inventory, with some modifications, for the purpose of stimulating her husband thereto. the marriage was finally effected, and they all went back together to the city of arezzo. nor were the comparini mistreated there, as they tried to prove by the unauthoritative deposition of a servant, who had left the house in anger. one mere reading of this deposition is enough to assure one that she did this with a bad motive and at the instigation of others, as she herself has declared to various persons. this deposition shows sickeningly the distasteful prejudice with which it was conceived, and especially where she says that a little sucking lamb was made to serve as food for seven or eight persons throughout an entire week. and there are other matters alike unfit for belief. [the comparini] were indeed treated with all consideration and decorum, as monsignor the bishop and the governor of the city attest; and they are persons much better qualified to judge and much more worthy of belief than a malign and suborned servant. but you may also have the attestation of one who was serving in that household for thirteen months, during the time when the abovesaid pietro and violante were there, and he is able to tell many particulars of the good treatment which they received at the hands of the franceschini. it is quite true that disturbances of considerable importance arose in that household; but they were occasioned by the bitter tongue of pietro and the haughtiness of violante, his wife. for they laughed at all the proceedings of the franceschini, and thrusting themselves forward, with pretence of superiority, they brought upon the mother of the franceschini, and upon the rest of the family, bitter vexations, which were hidden at the time, to avoid violating the laws of hospitality. and notwithstanding all this, when pietro and his wife decided to return to rome, as soon as they expressed their wish, they were provided with money for the journey, and in rome with furniture to put in order the house they had left. as soon as pietro and violante arrived in rome, a judicial notice was dispatched at the instance of pietro, in which he declared that francesca pompilia was not really his daughter, and that therefore he was not bound to discharge his promise of dowry. to prove this fact, he brought the attestation of his wife violante. in substance, she declared that for the purpose of keeping her husband's creditors from their rights, by virtue of the reversionary interest, and also for the purpose of enjoying the income of the bonds, she had feigned that she was pregnant, and then, with the aid of a midwife, that she had brought forth a daughter. this was francesca pompilia, who had come of a most vile parentage. from this blameworthy act made public so suddenly throughout the entire court, there necessarily arose in the franceschini an intense hatred toward the authors of it. but they were able to restrain themselves from the due resentment in the hope that if francesca pompilia were not indeed the daughter of pietro and violante, as was supposed at the time of the espousal, the marriage might be annulled and they might thus purge themselves of such a blot on their reputation. witnesses of this feeling of theirs are found in the many authorities and experts who were requested by the franceschini to give thought to that point and to express their opinion of it. but as these did not agree, the franceschini were unwilling then to commit themselves to so doubtful an undertaking, in the prosecution of which they would necessarily be obliged to presuppose and confess that she was not the child of the comparini. but by such a confession they would be prejudiced in their interest in the dowry. and therefore they thought well then to pass the matter by that they might avoid exposing themselves to the danger both of losing the dowry and of being unable to nullify the marriage. nevertheless they opposed the notice, and obtained for francesca pompilia the continuance in quasi-possession of her daughtership and a decree for the transfer of the dowry bonds. but pietro appealed from the decree, and the case was continued in the _segnatura di giustizia_. this was followed by the copious distribution of pamphlets throughout rome, which had been printed by pietro to the very grave injury of the honour of the franceschini, not to say to their infamy. but the latter were able to restrain the just resentment of their irritated minds by cherishing the hope of making the court acknowledge (as did follow), no less the falsehood of their adversaries than their own truth. supported by this hope, they subsequently bore with all patience the many insults planned against them by various cliques, and the twists and turns for hindering the transfer of the dowry bonds, the comparini having trumped up various creditors, whether real or pretended. on account of this opposition, the franceschini were made to feel the inconvenience and expense of that transfer. nor have they had any benefit of the income; of which they have been able to obtain not even a two months' payment. to such a pitch had the affairs of the two parties come, when guido, waking up one morning, found that his wife was not in bed. as soon as he arose, he found that his jewel-box had been rifled and his wife had fled. nor was the suspicion lacking that she had given an opiate to guido and the entire household the preceding evening; and it was thought that this had happened at the suggestion of pietro and violante, as he had more than once heard threats of it. he travelled quickly along the way to rome, and after a headlong journey he overtook his fugitive wife, in company with canon caponsacchi of arezzo, at the inn of castelnuovo. and as he was alone and unarmed, and they were armed and resolute, he saw that he was unequal to avenging that excess. he therefore thought it well to have them arrested by applying to the authorities of the said place. the court had both of the fugitives captured by the police. they were consigned to the jurisdiction of monsignor the governor of rome, and were then conducted to the new prisons. the fisc, indeed, makes much out of the particular that franceschini should have avenged his insults in the act of overtaking them; but, as an adequate response, one should think of the impossibility of his carrying out his revenge because of their precaution in the matter of arms, for franceschini had heard along the way that the fugitives were travelling armed. in proof of this, also, when his wife saw her husband she had the hardihood to thrust at his life with bare sword. for this reason it was prudent moderation to check their flight then by arresting them. and this was all the more true because the adultery of his wife had not then been proved, and possibly he had a repugnance against imbuing his hands with the blood of her whom he had often held in his arms, as long as any hope was left alive of regaining his reputation in any other way than by her murder. but afterward there were found the mutual love-letters of the same fugitives, barefaced and immodest and preparatory to flight. and from the cross-examination of the driver it became evident that during their journey in the carriage they had done nothing else than kiss each other impurely. and from the deposition of the host at castelnuovo, guido found out that both of them had slept in the same chamber. finally, from the sentence or decree of the court in condemnation of the canon caponsacchi to banishment to civita vecchia for three years, for "having carnally known francesca," the notoriety and publicity of this adultery followed. let any one who has the sense of honour consider in what straits and perturbations of mind poor guido found himself, since even the very reasonless animals detest and abominate the contamination of their conjugal tie, with all the ferocity that natural instinct can suggest. they not only avenge the immodesty of their companions by the death of the adulterer, but they also avenge the outrages and injuries done to the reputation of their masters. for elian in his natural history tells of an elephant which avenged adultery for its master by the death of the wife and the adulterer found together in the act of adultery. and there are other examples also, as tiraquelli cites. [citation.] but returning to the series of events, it must be stated that, after the imprisonment of the fugitives, guido also came on to rome and was deeply affected and, as it were, delirious because of the excesses of his wife. he was comforted by his good friends with the hope that this attempt at flight, taken along with the lack of decent parentage of francesca (under supposition of which he had contracted the marriage) would facilitate the dissolution of that marriage, and in that way all the blots upon his reputation would be cancelled. hence, with this hope he returned to his own country, leaving the management of the affair to the abate, his brother. the secretary of sacred assembly of the council may be a witness of this; for abate paolo presented the matter to him and entreated him to propose, in that sacred assembly, this point of law as to the validity of the marriage then--that is, after a criminal sentence in the tribunal of monsignor the governor, had been obtained. in the meanwhile the same abate attended to the plan of petitioning the conclusion of the said criminal cause. when pompilia, to avoid conviction by the love-letters, had recourse to the falsehood that she did not know how to write, it was easy for the abate to convict her of that lie by showing the marriage agreement signed with her own hand, as well as by a cardinal now dead, by means of the recognition of the handwriting. but in spite of this, when the merits of the case had been made known everywhere, the same abate perceived that instead of his being pitied, little by little every one began to laugh at him and to deride him, as he has told several persons. perchance the attempt was being made to introduce into rome the power of sinning against the laws of god with impunity, along with the doctrine of molinos and philosophic sin, which has been checked by the authority of the holy office. so many persons would desire to blot out from the minds of men their esteem of honour and of reputation in order that they might sin with impunity against the laws of men and might give opportunity to adulterers without any check from disgrace or shame. and it is certain that the abate, seeing the cause unduly protracted, had just grounds for placing it at the feet of our lord [the pope], with a memorial in which he declared that he could no longer endure such important and such various litigation and vexation arising from that luckless marriage, and he prayed that a special sitting be appointed for all the cases--that is the ones concerning her daughtership, her flight, her adultery, the dowry, and others growing out of the marriage as well as the one concerning its annulling. but he had no other reply than: "the matter rests with the judges." so, with devout resignation to his holiness, he awaited the outcome of the said criminal trial, from which he hoped to regain, at least in part, the reputation of his house. in the meantime, pietro comparini was supplied with plenty of money by the generosity of some unknown person, possibly a lover of the young girl. he vaunted his triumph boldly in the throngs and the shops, places of his accustomed resort, and he praised the resolution and spirit of his daughter for having known how to trick the franceschini with a disgraceful flight and with the thievery of such precious things, and for having found an expedient to give to the judge in the trial such good replies with all details thereof. he also boasted that in a little while she would return to his home despite the franceschini. for he would bring so many lawsuits and scandals upon them that they would be forced to be silent and to let matters run on. for these statements we can have the attestations of many persons, in case they are needed. therefore, because of such stinging boasts and such irritations, the mind of guido was ever more embittered in spite of all the power he could master for restraining the impetus of his anger which had been provoked by such injuries. francesca pompilia had been previously transferred from the prisons into the refuge called _della scalette_, where she stayed for some months. then it was discovered that she was pregnant, and many attempts were made to secure an abortion. for this purpose, powders and other drugs were given several times by the mother. as this proved useless, she was remanded to the home of pietro and violante on the pretext of an obstruction and the necessity of relieving herself. there, at the approach of the physicians, her pregnancy was discovered. the truth is, that when her womb began to grow, the nuns did not wish for her confinement to take place within their walls, and therefore a pretext was found for removing her on the grounds of the said obstruction and the necessity of removing it. now at this point the abate found it necessary to break the bonds of his forbearance: for although it was indirectly that he was offended, that is, in the person and honour of his brother, nevertheless it seemed to him that every man's face had become a looking-glass, in which was mirrored the image of the ridicule of his house. therefore, being humiliated, though he was strong and constant in other matters, he often burst into bitterest tears, until he felt very much inclined to throw himself into the river, as he indeed declared to all his friends. and to free himself from such imminent danger, he decided to abandon rome, the court, his hopes and possessions, his affectionate and powerful patrons, and whatever property he had accumulated during thirty years in the same city. any one may imagine with what pain he parted from these and went to a strange and unknown clime, where he would not meet the fierceness of his scorners, who had been merited neither by himself nor his household. but the injury of guido, arising from a sharper and severer wound, within his very vitals as a husband, had the power to arouse his anger even to the extreme. nor did he consider it sufficient redress to punish himself with voluntary exile for the crimes of others; for such a resolution might be considered by the world as a plain proof of his weakness and cowardice. he soon had sure information that, during the month of december, pompilia had given birth to a boy in the home of the comparini, which child had been intrusted secretly to a nurse. he also heard that the infamy of the friendship with the said canon had been continued, inasmuch as he was received as a guest into the said home (as was said). for like a vulture, caponsacchi wheeled round and round those walls, that he might put beak and talons into the desired flesh for the increase of guido's disgrace. guido accordingly felt the wildest commotion in his blood, which urged him to find refuge for himself even in the most desperate of determinations. in the meantime he turned over again and again, as in delirium, his sinister thoughts, reflecting that he was abhorred by his friends, avoided by his relatives, and pointed at with the finger of scorn by every one in his own country. and the word went abroad that in rome they were selling his reputation at an infamous market. (this matter has moved the treasurer of the convertites, since the death of pompilia, to begin proceedings and to take possession of her property.) added to the above were the continual rebukes which he received because of his lost honour, so that he became utterly drunk with fury. he left arezzo with desperate thoughts, and when he had reached rome he went to that home which was the asylum of his disgraces. nor could he have any doubt how much the very name of the adulterer was respected; for when guido made pretence of delivering a letter of his sending, the doors were immediately thrown open; and so, scarcely had he set his foot upon the threshold, before he saw his dishonour proving itself before his very face; of which dishonour he had heretofore had only a distant impression in his imagination. then bold and triumphant, he no longer feared to upbraid her with unmasked face for all the insults which had been inflicted upon his honour in that household; and as he looked all around at those walls incrusted with his heaviest insults, and with his infamy, the dams of his reason gave way and he fell headlong into that miserable ruin of plunging himself with deadly catastrophe into the blood of the oppressors of his reputation. there is no doubt that franceschini has committed the crime of a desperate man, and that his mind, when it was so furious, was totally destitute of reason. as he had lost his property, his wife, and his honour, there was nothing else for him to lose unless it were his miserable life. for, as paolo zacchia, the learned philosopher and jurist, says in speaking of anger in man: "such and so great is its force that it does not differ at all from insanity and fury." galenus very clearly affirms this, adding that when in law it is known that crimes are committed in such a state, they are punished with a smaller penalty, even though it has to do with the very atrocious crime of parricide. calder [citation] also gives many other matters on our point in no. and the following numbers. and these theoretic propositions are verified in actual practice in guido; for he was so utterly mad and void of reason that he entered upon so great an undertaking even at an hour of the night when many people were around. and after that he took no precaution, such as any other person of sound mind would have taken in governing his actions. he set out by the high road on his journey of about seventy miles from the outskirts of the city without providing any vehicles, as if he were merely a traveller leaving rome. these circumstances are plain evidences of an offended and delirious mind. [citations.] st. jerome writes in his letters: "where honour is absent, there is contempt; and where contempt is, there is recurring insult; and where insult, there indignation; and where indignation, there is no quiet; and where quiet is wanting, there the mind is often thrown from its balance." nor in this case does the legal distinction enter as to whether the one driven by anger committed the crime in the first impulse of anger, or after an interval of time. for this distinction might have a place when the anger arose from an insult in some transitory deed, and one that was not permanent. but in the case we are treating, the insult provocative of anger consisted of frequent and reiterated acts; that is, not so much in the passing of the wife from the nunnery to the home of pietro under an empty and ridiculous pretence, but still more from her staying in the said home with the aggravating circumstance of his own infamy (as has been said above). accordingly, as the injury is permanent because of the continual affronts which the injured one received, so the vengeance is understood to be taken immediately and without any interval. this the defenders of the cause have sufficiently proved in their no less erudite than learned writings with their very strong arguments and their unsurpassable learning. nor does it amount to anything for one to say that the crime was aggravated, first, by the kind of arms used; for virgil [a. i. ] says: _furor arma ministrat_; nor, secondly, by the company of four, or let us say the conventicle; nor, thirdly, by the place, the excess, or the other circumstances considered by the fisc. for in a madman, everything is excusable, as it is axiomatic and a very sure principle that nature then arises in such a way that it drives a man from himself, in whatever manner is possible, etc. in conformity therewith, fracosto speaks as follows: "and in truth an ingenuous mind, and one that knows the value of its own honour and reputation, is very painfully offended in a part so sensitive and so delicate; and at such a time reaches the limit of madness and of desperation; for it has lost the light of reason, and in delirium and frenzy cannot be satisfied even if it succeed in turning upside down, if that were possible, the very hinges of the universe, for the purpose of annihilating not merely the authors but the places and the memory of its insults and shames." for "the rage and fury of a man does not spare in the day of vengeance, nor does it grant the prayers of any, nor does it accept in requital many gifts," as the holy spirit speaks on this point, through the mouth of solomon, in the sixth chapter of proverbs, at the end. with this very well agrees what st. bernard has very learnedly written in his letter to his nephew robert at the beginning: "anger indeed does not deliberate very much, nor has it a sense of shame, nor does it follow reason, nor fear the loss of dignity, nor obey the law, nor acquiesce in its judgment, and ignores all method and order." there is no doubt that samson reached this pitch when he fell into the power of his enemies. he suffered with an intrepid mind the loss of his eyes and other grievous disasters, but when he saw that he was destined to serve as a pastime in public places, and when he there heard the jeers and derision of the people, the anger in his breast was inflamed, so that, all madness and fury, he cried out: "let me die along with the philistines." and giving a shake to the columns which sustained the palace he reduced it to ruin: "and he killed many more in his death than he had killed while alive," as the holy scripture testifies. and christ himself, although he was very mild, and had the greatest patience while receiving opprobrium and insults without ever complaining, yet answered, when he knew that his honour was touched, "my honour i will give to no one." and it is certain that any one who cares for honour and reputation would rather die an honoured man beneath _mannaia_ than live for many ages in the face of the world with shame and dishonour. this argument, strong as it is, has succeeded in weakening one wise and earnest adherent of the fisc. and this is why the very learned pen of monsignor of the fisc has uttered the following period, which says: "but because the comparini claimed that the furnishing of food to francesca while in prison was the duty of franceschini, and the latter declared that it belonged to the comparini, the most illustrious and reverend lord governor, after having the consent of abate paolo, own brother of guido, and his representative in the case, assigned the home of the same comparini to francesca as a safe and secure prison under security." but this fact can be clearly explained so that it will not form an objection. when francesca pompilia was about to be taken from the prison to the nunnery, abate franceschini was asked to provide the food, with the statement that if he refused there would appear a third and unknown person who would assume the burden of it to their dishonour. therefore the abate wished once for all to put an end to any chance of receiving new insults; and to avoid every charge of preserving even the slightest sign of relation with this disgraceful sister-in-law, accepted a middle way proposed to him, namely, that lamparelli, as procurator of charity, should make provision for it by the disbursement of his own funds and should pay it back again by what reasonably belonged to the franceschini; for he reimbursed himself for it with the money which had been found upon the fugitives, and which had been stolen from the husband; at her capture, this money was placed on deposit in the office, where there remained so much of it still that, after all was over, the balance of it was consigned to the same abate. and as when the said francesca was transferred from the nunnery to the home of violante, all the preceding and succeeding circumstances made it very improbable that the abate gave his consent, and as this consent is not found registered among those acts, it seems very clear that it was not given at all. nor could he legally give it, for he was not the representative of his brother in that matter; for his authorisation confined him solely to the power of receiving back the money and other things which were deposited in the office. this is proved by his acts and by the story which the abate then gave to his friends and relatives; and it utterly destroys the assertion of the fisc, since abate paolo says that he was indeed notified that the young woman was obliged to find relief in an indisposition, certified by a physician, and that she was obliged to leave the nunnery and to go back to her father's home. to this, as it seemed a mere pretence, he replied that he could easily undertake to purge the wife in the nunnery without exposing her to such evident danger of greater shame. he also said that he wondered very much that the affection of a father had so suddenly returned in pietro comparini for pompilia, whom he and his wife had so often denied as their daughter. he wondered how they could both be, and not be, the parents of the said woman, according to their own desires to the injury of the house of franceschini. and if the solicitor, for the purpose of giving colour to the honour of the said lady, has falsely urged many justifications, it is to be noted that in substance all that he says on that point is founded on what with her own mouth she has said in her own favour and what she has proffered to free herself from the blame of her sins, both at this juncture and in the flight, as well as in the trial which may be referred to; in fact, quite the contrary is evident; and from the external tests which the convertites intended to make, but from which they abstained when they heard the news of the birth of the son. and would that it had pleased god that she had observed the laws of holy modesty! for in that case so great a misfortune would not have resulted from her whims. we should notice, further, that the declaration made by the wife in the face of death may be doubtful in itself, in the sense that after confession and absolution one's sin is cancelled as if it had never been committed, so that in a court of justice she would no longer have any need of pardon. therefore, from the above-cited circumstances and very strong reasons, there is no room to doubt that franceschini deserves the indulgence which the laws give to excesses that find origin from the stings of honour. and, if we were within the circumstances under which the case ought to be adjudged according to expediency, without any hesitation, franceschini should be punished mildly to diminish the force of immodesty and impudence. for the woman is not without adherents, who triumph throughout all rome in a coterie of treachery, both in public and in private. this is for the oppression and derision against husbands who have regard for their reputation. and they give the title of pedantry to that circumspection which one ought to practise for the preservation of his own honour. [file-title of pamphlet .] _by the most illustrious and most reverend lord governor of the city in criminal cases:_ _roman murder-case with qualifying circumstance._ _for the fisc, against count guido franceschini and his associates._ _summary._ _at rome, in the type of the reverend apostolic chamber, ._ summary [pamphlet .] no. .--_bond given by francesca pompilia to keep her home as a prison._ october , . before me, etc., francesca pompilia, wife of guido franceschini of arezzo, was placed at liberty, etc., and promised, etc., to keep to this home of pietro (son of the former francesco comparini), etc., situated in via paolina, as a safe and secure prison, and not to leave it, either by day or by night, nor to show herself at the doors or open windows, under any pretext whatsoever, etc., with the thought of having to return again to prison, etc. and after she has recovered her health to present herself at any time whatsoever, etc., at every command of the most illustrious and most reverend lord governor of the city; for the cause concerning which there was argument in the trial, etc., from proofs that may arise, whether new or not new; under the penalty of scudi, laid by the reverend apostolic chamber in the case, etc. this is followed by the surety in due form, notary for the poor. no. .--_certificate of the baptism of francesca pompilia._ i, the undersigned, certify, etc., as is found in the baptismal record, page , the particulars given below, namely: july , . i, bartolomeo mini, curate, have baptised the infant daughter born on the th of this month to pietro comparini and violante peruzzi, who live in this parish. to her the following name was given: francesca camilla vittoria angela pompilia, etc. in pledge of which, etc. rome this th day of february, . thus it is, pietro ottoboni, curate of san lorenzo in lucina. no. .--_letter of francesca, pompilia, written in the prison of castelnuovo to her parents._ my dear father and mother: i wish to inform you that i am imprisoned here in castelnuovo for having fled from home with a gentleman with whom you are not acquainted. but he is a relative of the guillichini, who was at rome, and who was to have accompanied me to rome. as guillichini was sick, and could not come with me, the other gentleman came, and i came with him for this reason, because my life was not worth an hour's purchase. for guido my husband wished to kill me, because he had certain suspicions, which were not true, and on account of these he wished to murder me. i sent you word of them on purpose, but you did not believe the letters sent you were in my own hand. but i declare that i finished learning how to write in arezzo. let me tell you that the one who carries this was moved by pity and provided me with the paper and what i needed. so as soon as you have read this letter of mine come here to castelnuovo to give me some aid, because my husband is doing all he can against me. therefore if you wish your daughter well, come quickly. i stop because i have no more time. may . directed to signor pietro comparini, my father, via vittoria, rome. no. .--_another letter of the same person, in which she calls the canon to task for dishonourable advances._ i give you infinite thanks for the octaves which you have sent me. all of these are the very contrary of the rosalinda, which was as honourable as these are immodest. and i am surprised that you who are so chaste have composed and copied matters so immodest. i do not want you to do in everything as you have done in these books, the first of which was so very nice; while these octaves are quite the contrary. i cannot believe that you, who were so modest, would become so bold, etc. no. .--_portions of the will of pietro comparini._ as to each and all of my properties, etc., i appoint, as my usufructuary heir, my wife signora violante peruzzi, etc. and when she dies i appoint in her stead, in the said usufruct of my entire estate, francesca pompilia, wife of signor guido franceschini of arezzo. and i do so because of her good character and because for a long time, yes, for many years, i looked upon her in good faith as my daughter, and thought that signora violante, my wife and myself were her parents. then i found out that both she and i were tricked in that belief, thanks to the vanity of the schemes, unfortunately conceived by my said wife, to make me believe in the birth of the same daughter. and because of a scruple of conscience after the marriage of francesca pompilia, this fact was revealed to me by signora violante my wife. and this pretence of birth was found by me to be a fact because of the information of it from persons worthy of credit. all this i grant, therefore, on the condition that the said francesca pompilia seek again her own city and stay here in rome, etc., in which city i hope she will live chastely and honestly, and will lead the life of a good christian. but if she do not come back to this city, or if when she has come back she live with shameless impurity (and may god forbid that), i wish that she be deprived of the said usufruct of my estate and that opportunity be given for a substitution in favour of the heir mentioned below, as proprietor, etc. because thus, etc., and not otherwise, etc. and because the chance might arise that she be left a widow, or that her marriage be dissolved, since a lawsuit is going on, which was brought before monsignor tomati by the olivieri as to her relation as child, and if the said francesca wish to marry again, or become a nun, i am willing that she separate from my estate as much as scudi for the purpose of remarrying or becoming a nun, if she shall so please. and i advise her not to marry again, lest she subject herself a second time to other deceptions. still further, i give her the power to leave by will scudi more of my estate. and in the event that signor guido die first, whereby there would come about the restitution to the said francesca pompilia, etc., of the money received by signor guido, to the sum of about scudi, etc. (which i think would be at least very difficult, if not impossible, because signor guido is wretchedly poor and his family is very poor), i wish that these moneys be not counted against the said francesca pompilia in said scudi, much less in her power of making a will, because then, etc. no. .--_authorisation for the management of his affairs made by guido franceschini to the person of abate paolo, his brother._ _october , ._ guido, son of the former tomaso di franceschini of arezzo, of his own will, etc., made and appointed, etc., to be his true, etc., representative, etc., special and general, etc., abate paolo franceschini, his own brother, now living in rome, etc., for the purpose of carrying on and defending, in the name of the said constituent, all lawsuits and causes, civil or mixed, already brought or to be brought for any reason whatsoever, and against any persons whatsoever, anywhere, and especially in rome, whether as plaintiff or defendant before any judge, either ecclesiastical or secular, whether before the congregation or tribunal, and before one or both, to give or receive charges, or to contest lawsuits, to take oath as regards the calumny, and to furnish whatever other testimony is lawful, etc., and to carry on and obtain each and all other necessary matters, in the same manner and form as the constituent could, if he were present, and as seems well pleasing to the said procurator, etc., promising, etc., and demanding, etc. i, joseph, etc., de ricii, notary public, etc., of arezzo was asked, etc., in pledge whereto, etc. [file-title of pamphlet .] _by the most illustrious and most reverend lord governor of the city in criminal cases:_ _for the fisc, against count guido franceschini and his associates, prisoners._ _response of the procurator general of the fisc._ _at rome, in the type of the reverend apostolic chamber, ._ romana excidii [pamphlet .] most illustrious and most reverend lord: why should we waste time in disputing the point whether adultery committed by francesca comparini with canon caponsacchi, as is claimed by the other side, is sufficiently proved? for in our first information [pamphlet ] as to the law and fact in the case, we have already declared that judgment was given in the _congregation_ only for the penalty of banishment to civita vecchia against the abovesaid canon, and of retention in the nunnery against francesca, because of the very lack of proof of the said adultery. and this is quite right in law, because neither the canon himself nor the said francesca have confessed, much less been convicted of it; and because the suppositions brought on the other side are trivial and equivocal. but, even if these latter had been weighty and very urgent, they would not have been enough to establish conclusive proof, but at the most could only lead the mind of the judge to place some minor punishment upon them arbitrarily, as farinacci testifies. [citation.] therefore there should be strict insistence on behalf of the fisc upon the point that guido franceschini had not the right to kill, after an interval, his wife, whom he had not taken in adultery nor in base conduct, without incurring the ordinary penalty of the _lex cornelia de sicariis_. for in our former writings, § _alii vero_, we have proved by the strength of many distinguished authorities that a husband who kills his wife after an interval is not excused from the said penalty. now that this fundamental assertion [in their argument] is overthrown, we declare that the rights of the fisc cannot at all be controverted in the case with which we are dealing, since the authorities alleged by the defence, who excuse a husband from the ordinary penalty, speak in the case of simple murder; and they ought not, accordingly, to be extended to a case made still graver by qualifying attendant circumstances. and for this reason, because the penalty cannot possibly be the same, when the crime is greater in the one case than in the other. [citations.] nor for the purpose of overthrowing this fundamental idea of the fisc can the objection be made that all the qualifying and attendant circumstances, which have been brought together in behalf of the fisc, should have no consideration, because they tend toward and are preordained for the end had in mind; for the end and intention of count guido was directed toward the murder of his wife and the vindication of his honour. but one can well understand how fallacious this argument really is, from what i have already written in § _prima enim_ together with the one following, and § _secunda qualitas_ and _si ergo_. there we have proved that the learned authorities who can be adduced by the other side speak and should be so understood when the end is licit and not prohibited by law, or else when some qualifying circumstance, through the force of particular constitutions or banns, does not establish some further capital crime, distinct and separate. and this is true whether the preordained end in the mind of the delinquent follow or do not follow. but in our case, from what has been conceded by the lawyers for the defence, the husband is not permitted by law to kill with impunity his wife, after an interval, for adultery. but he is permitted by law to slay the vile adulterer and his adulterous wife only when taken in adultery. how then can these authorities be applied to our case? for they hold good and find a place for themselves only in a case permitted by law. in these circumstances speaks laurentius matthæus [citation], who is cited by the other side, where in his setting forth a case we may read: "the adulterer and adulteress were slain in the home of the husband, although in that case the husband did not escape unpunished, because he had used firearms." nor does it hold good in law and practice that the bearing of arms is included along with the crime committed. not in law, as we have affirmed in our other argument § _si ergo_; nor in practice, because in all the tribunals of the entire ecclesiastical state, it is held that even when murder in a rage has been committed, if it has been committed with the arms which are prohibited under the capital penalty, especially if these arms come into the possession of the court, a more severe penalty is inflicted. and murders which should suffer a lighter penalty because they were done in anger are condemned under the ordinary penalty because of the carrying of such arms. farinacci and guazzini testify that this has been the practice in the ecclesiastical state while this decree has held good. [citations.] still less applicable are the other authorities, who were adduced to escape the order of the constitution of alexander. for although it is true that for this crime the penalty threatened by the same decree does not enter, unless these three matters are concurrently present, namely craft, the occasion of a lawsuit, and the fact that no provocation has arisen (as farinacci holds [citation]), yet in our case, all of the abovesaid concur. as to the craft, there can be little doubt, since by the very confession of the defendants we have knowledge of the preceding discussion and deliberation for committing the murders. and decian and others affirm the charge of craft may arise from such a discussion. [citations.] the presence of a lawsuit is likewise undoubted; because, on the representation of pietro comparini, suit was not only brought before judge tomati as to the dowry promised and the goods subject to entail, for the exclusion of the said guido franceschini and francesca his wife, but also a sentence favourable to the said franceschini has been handed down by the same judge. but still further we may gather, from the confession of franceschini himself, that the provocation whereby he was moved to kill his wife arose because of the pretended adultery; on this point the counsel for the defence have principally insisted. nor can they deny that this same cause was introduced in the criminal prosecution in the presence of the judge by the same franceschini. it is quite necessary, then, to acknowledge that this ought to justify the application of the penalty of the alexandrian bull; for this decree speaks in civil as well as criminal cases, as is evident in the fourth paragraph of the same bull, where we read: "that successively in future times forever, each and all persons, ecclesiastical and secular, of whatever quality, dignity, state and grade of rank and prominence, in their own causes under benefit of clergy or secular, also in criminal and mixed cases, whether now before this court or pending for the time, their adversaries, or those following or helping them, or the advocates or counsel of them." and also in the place where we read: "if mutilation of limb, or death (which god avert) follow, they incur _ipso facto_ beside the loss of their right and case, the sentence for the outraged majesty of the law." we believe we have sufficiently canvassed these matters with galloping pen (there being but a brief three hours) to prove clearly that the foundations of the fisc affirmed in our former writings still stand fast, in spite of what has been recently deduced by the opposition so fully and so learnedly, but without legitimate proof. f. gambi, _procurator general of the fisc and of the reverend apostolic chamber_. [file-title of pamphlet .] _by the most illustrious and most reverend lord governor of the city in criminal cases_: _roman murder-case with qualifying circumstance_. _for the fisc, against count guido franceschini and his associates._ _a reply in matters of law, by the lord advocate of the fisc._ _at rome, in the type of the reverend apostolic chamber, ._ romana homicidiorum [pamphlet .] most illustrious and most reverend lord: in the beginning of his recent information, my lord advocate of the poor has criticised as unjust the decree of this supreme tribunal, which inflicted the torture of the vigil upon count guido franceschini and his associates, for the purpose of getting confession of that most horrible crime committed by them. hence he claims that those confessions, given under the fear of it and ratified after it was over (as is the custom), cannot do the accused any harm. he attempts, indeed, to deny the justice of the said decree, not merely because of the absence of the quality of special atrocity (as required by the decree of paul v. of sacred memory for the reformation of the tribunals of the city), but also from the fact that the death penalty cannot be demanded for the crime under discussion. and this he claims is so (in spite of the unusual powers for ordering the torture of the vigil granted to this tribunal) lest there may be greater harshness in the course of the trial than in the penalty itself. [citation.] in the end of this said recent information, he also criticises me because, to the very great wonder of himself and others, i have failed in my duty of seeking the truth in that i have made certain allegations in the defence of the rights of the fisc, which i have not communicated to him. i thought he had complained quite enough about that orally, so that he might have spared us his new complaint. but it was not my duty to tell them to him, just as his informations, which he made for the defence (very learned indeed in their way), have never been made known to me by him. but i assert only this, that i have paid the price of much labour, lest i may seem to have failed in my office and in the reverence with which i attend upon my lord. passing over, therefore, my own personal apology, i go on to vindicate the decree of this tribunal from the injustice charged against it. i also omit proof of the quality of the crime as to whether it may be considered very atrocious, for i have abundantly argued this point in my past response, § _sed quatenus etiam_, with the one following. for i showed that this quality could be sustained because of the attendant circumstances which exasperated and raised the crime to the outraging of the majesty of the law, according to the provisions of the apostolic constitutions and the general banns. i think it is quite enough in my present argument to show that for this offence the death penalty should be demanded. i hope to accomplish this with little difficulty, since from the very kind of severe torture decreed, by judges of such integrity, the applicability of this said penalty is pre-supposed. and so since nothing new, whether in fact or in law, can be brought, which has not been already examined in relation to the cause for decreeing the torture, now that the confession of the accused has followed it, it is the duty of the judges to pronounce the execution of the well-deserved penalty, which has been long expected by every one. i have said that nothing new is brought by the defence, since their special attempt consists in repeating the plea of injured honour because of the pretended adultery committed by the wife of guido, with the help and conspiracy of her parents, who were barbarously slaughtered along with her. this plea is offered for the purpose of exciting the pity of my most illustrious lord, and the lords judges, in order that guido and his associates may be punished more mildly, according to the authorities adduced on that point in their first information, § _hoc stante_, together with the one following, and § _prædictis nullatenus_, likewise with the one following; and in the present information, § _verum et socios_. but the same response recurs, that for the accused this exception on the plea of pretended injury to honour can afford no refuge, because this plea has no foundation in fact and is irrelevant in law. for what difference does it make even if the mere strong suspicion of adultery is enough to excuse vengeance taken immediately by a husband against his wife or her lover? if she were found either in lustful acts, or in those preparatory thereto; then because of such a sudden grievance excited thereby, which provokes a man to anger, the penalty should very often be tempered according to the nature of the case and the persons. but it is quite certain that to escape the ordinary penalty of the _lex cornelia de sicariis_ for the murder of a wife committed after an interval, the mere suspicion of adultery, however strong, is not enough; but the clearest proof of it is required, either from the confession of the wife herself or from a condemnatory sentence following. [citations.] but such proof is entirely lacking in our case. for the luckless wife constantly denied the adultery even till the last breath of her life, as is evident from the sworn attestations of priests and others who gladly ministered to her after she had been wounded. for they unanimously assert that she always affirmed that she had never violated her conjugal faith. nor did she ask that such sin be forgiven her by the divine clemency; this assertion indeed should have much weight, since no one is presumed to die unmindful of his eternal safety. [citations.] nor are the responses given by the defence at all relevant; namely, that such proof in denial of the adultery is drawn entirely from testimony taken out of court, and extorted by the heir while a lawsuit was pending, to remove the annoyances brought by the monastery of the convertites, and that some of the undersigned were legatees. they also respond that since such an assertion as hers served to cover her own baseness, it should not be believed, especially as it was not sworn. and further, that although no one is presumed to be unmindful of his eternal safety, yet all are not supposed to be immune from sin, like saint john the baptist, which is especially true when the argument is about the prejudice of a third party and about the more severe punishment of an enemy of the one making declaration. now that all these claims are destroyed with so little trouble, the irregularity of the proof could stand in our way, if the fisc were obliged to assume proof and perfect it. but the burden of proof rests upon the accused, according to the authorities cited above for avoiding the death penalty, whenever a man kills his wife after an interval. the above attestations are brought merely to damage the proof of pretended adultery, offered by guido. in this case, certainly, such attestations are not to be spurned, especially when we consider the quality of the persons attesting, since they are priests of well-known probity, and it is incredible that they would be willing to lie. [citations.] the further objection that these attestations were extorted by the heir, while a lawsuit was pending, for the purpose of escaping the trouble brought upon him by the monastery of the convertites, is also removed by the same reply; because when one is arguing for the proof of an assertion given in the last days of life and in the very face of death, proof cannot be established, unless this hold good. and the heir is praiseworthy, because he is obliged to avenge the murder of the one slain, lest he be considered unworthy according to the text. [citation.] "heirs who are proved to let the murder of the testator go unavenged are compelled to give back the entire property," etc. he procured these attestations that he might guard the good fame of the testatrix; and this was rather because of his zeal for her good repute than to prevent the annoyances unjustly brought, and the quashing of these latter could be turned back for the exclusion of the pretended proof of the dishonesty of the unfortunate wife. still less can it stand in our way that some of the signers are legatees, since their interest is not large enough to prevent their giving testimony. [citations.] and this is especially true when one is arguing to prove a matter which happened within the walls of a home, and the proof of which, on that account, is considered difficult. [citations.] and such an exception to their testimony, so far as it has any foundation, is utterly removed by the number of the witnesses subscribed to the said attestations. [citations.] but [last of all], as to the objection that the assertion of one dying is not to be attended, when directed toward the exoneration of one's self, because no one is compelled to reveal his own baseness. this might indeed hold good if the adultery had been proved, and if it were not evident that, though wounded, she had died with strongest manifestation of christian penitence, which would exclude all suspicion of a lie. in this case such an objection does not hold good, but another very valid supposition takes its place, namely, that no one is believed to be willing to die unmindful of his eternal safety. [citations.] for mascardus [citation.] says that a confession given in the hour of death holds good, and he adds that this approaches nearer the truth, and cites in proof of it marsilius. [citation.] the latter affirms that if any one assert that a person making oath in the hour of death is lying, he says what is improbable. and mascardus concludes that this opinion is more just, and more in accord with reason and with natural law. and though he offers some limitations, none of these are applicable to our case; and the question about which he was arguing was concerning the assertion of one wounded, as to whether such assertion constituted proof against the one charged; and this differs by the whole heaven from our dispute, if we only note that the burden of proof does not rest with the fisc. nor does the assertion of pompilia when dying tend principally toward vengeance, since it is quite evident from those making attestations that she shrank with horror from that; as she always professed that she most freely pardoned her husband. these matters we have noted beforehand rather in super-abundance than because we were obliged to assert the justice of the decree of this tribunal. it will now be easy to escape the proof of pretended adultery, brought by the counsel for the defence. for so far as this proof is drawn from the other decree of this same tribunal, condemning canon caponsacchi for flight and carnal knowledge with francesca pompilia, the response which has already been given holds good: namely, that a title should be given no attention, but merely the proof resulting from the trial, and the penalty imposed by the sentence. and what if in that decree, along with the "title" of "complicity in the flight and escape of francesca pompilia," there was also added the title "for criminal knowledge of the same"? yet since in the trial itself no proof in verification of this was found, and since the penalty of three years' banishment does not correspond therewith, the mere title should not be given attention, according to the authorities adduced in my past response, § _non relevante_. and on account of the following reason, still less can such clear proof of the pretended adultery be established as is required to escape the ordinary penalty for taking vengeance after an interval. for at the instance of the procurator of the poor a correction was decreed by the judges, with the approval of my most illustrious lord, which substituted a general title relative to that suit, namely _pro causa de qua in actis_; and although this correction is not to be read in the record (commonly called the _vachetta_) in which decisions are usually noted, yet it was made in the order for the dispatching of caponsacchi to his exile and in the decree assigning to pompilia the home as a prison. (summary, no. .) and since the latter was made with the consent of abate paolo franceschini, we may assert that the said change of title became known to him because of his notorious solicitude in conducting the case; and so it would be very improbable that he had not carefully examined such a decree and the obligation made by pietro to furnish her food, without hope of repayment, and the bond given for her to keep the home as a prison. for these reasons his knowledge of that change should be considered as sufficiently proved. [citations.] and therefore the response falls to the ground that the decree could not be changed unless both sides were given a hearing. for while francesca pompilia, whose defence had not yet been finished, was unheard, much less could the title of criminal knowledge be included in the condemnation of the canon. for this would be injurious to her, not merely as regards her reputation, but also for the loss of her dowry, for which her husband was especially greedy. for in this way would an undefended woman suffer condemnation, and what is worse, as the event shows, would be exposed to the fury of her husband. and hence with justice was this correction requested and made. and even if this had not happened, a sentence given against the canon could not injure her, as it was a matter done with regard to other parties. [citations.] but it is quite gratuitous to assert that a change as regards the matter of the trial does also impart the same change as to the expression of the title of carnal knowledge. for since several titles were originally expressed in the decree of condemnation (such as complicity in flight, running away, and carnal knowledge upon which the suit was based) the statement of the cause contained therein is no more probable as regards one than as regards another, and certainly it is not probable as regards them all. for if they had wished to include all those in the modified decree, they would have said: _pro causis de quibus in processu_, for the singular number does not agree with several causes. [citations.] but in the prosecution the charge of "criminal knowledge" was not proved and the canon could not be condemned for that while francesca pompilia was unheard and undefended. this is on account of the indivisibility of the crime of adultery, which does not permit the division of the case for the purpose of condemning the one, while the case is pending as regards the other. and this is especially true when all parties are present and are held in prison. [citations.] the expression, therefore, _causæ, de qua in processu_, should be understood to apply only to the complicity in flight and running away (for this could be issued without the condemnation of francesca pompilia), and not to apply to "carnal knowledge." for the statement made should be considered applicable only to those matters with which the judgment relative thereto agrees. [citations.] and this claim of ours is rendered manifest by the mildness of the penalty to which the canon was condemned, namely, that of three years' banishment. this certainly does not correspond with the offences of running away with a married woman from her husband's home, bringing her to the city, and carnal knowledge of her. for inasmuch as the attendant circumstance of rape, spoken about, is punishable by the capital penalty, unless a priest is being dealt with, a far severer penalty would have to be inflicted for the adultery alone, if proof thereof had resulted from the trial. [citations.] my lord advocate of the poor acknowledges that the penalty was too light to expiate harshly such a crime, and especially in accordance with the constitution of sixtus, revived by innocent xi. of sacred memory. and therefore to avoid acknowledging the lack of proof, which might very well be inferred from the lightness of the penalty, he attempts to respond that the said canon was dealt with more mildly because he was a foreigner and because the crime under consideration had been committed outside of the ecclesiastical state. in this case one should be dismissed merely with exile. but this response is proved to be without foundation for many reasons. first, because on account of the well-known privilege of the city of rome, which is the country of all men, even those may be punished here who have committed crime outside of the ecclesiastical state, which is subject to the secular authority of the pope. and this is true, not merely for the handling of criminals, which is permitted to any prince, but for the trial of the crimes. [citations.] cyrill testifies that he himself had so held in , in the capitolian court, and farinacci testifies that it was so held in this same court in the year , in the case of gregorio corso, who had been condemned to the galleys, because he had committed murder in florence and had come here to rome, after seizing the horse of the one he had slain. and this was notwithstanding the fact that the cause was very sharply defended for the accused. [citations.] second, because this authority holds good whenever there is argument for punishing crimes committed by churchmen, who are subject to the jurisdiction of the supreme pontiff, and in the city can be punished for their crimes with the ordinary penalty, even though the crimes were committed outside of the temporal authority of the pope. [citations.] "rome is a common country and, therefore, in the roman courts any cleric or layman may be brought to trial, even though he did not commit his crime there." [citation.] third, because inasmuch as it was claimed that the approach to the city and the carrying away of the wife to the same were done because of lust, and to secure greater liberty for knowing her carnally, by taking her from the home of her husband, so the canon, on account of this purpose, would have subjected himself to penalties such as could really expiate the crime, and which also might be inflicted here in the city; for one is punishable with the same penalty who continues in a crime here, although he put it into effect outside of the state. [citations.] caballus [citation] holds that, for deciding the jurisdiction of a judge over crimes that have been committed, the person offending, rather than the offence, should be considered. [citation.] fourth, because the pretended carnal knowledge, so far as it can be said to be proved in the prosecution (and it can be verified that the decree was changed with relation to that), happened in the ecclesiastical state; for the strongest proof of that crime was drawn from the asserted sleeping together in the same bedroom at the inn of castelnuovo. [citation.] and therefore the canon could and should have been punished with condign punishment, not merely for his undertaking, but for the adultery, if that had been proved. and since this was not imposed, it may well be asserted that the canon was not at all condemned for "criminal knowledge," unless one wishes to criticise as unjust that decree, which imposed a mild penalty and one suitable merely to simple running away and complicity in flight, and which was much tempered because of the excuse brought by the procurator of the poor. therefore it may be asserted that the canon was not condemned for the pretended criminal knowledge, since the nature of the penalty well proves the nature of the crime, with which it should be commensurate, according to deuteronomy : "according to the measure of one's sin shall be the manner of his stripes." [citations.] and therefore, since the pretended condemnation of canon caponsacchi for criminal knowledge of francesca pompilia is excluded, the pretended notoriousness of the adultery resulting therefrom also falls to the ground. neither can this notoriousness be alleged against her undefended. and just as public vengeance, which is to be decreed by a judge, cannot be based lawfully upon it, so much less should private vengeance be considered excusable, when taken by the husband in murdering her after an interval. he is immune from the ordinary penalty for murder even according to the more merciful opinion only when the adultery is established by the very clearest proofs displayed in confession by the accused, or by a sentence given thereupon. likewise it would be superfluous to avoid the presumptions adduced by the defence, especially by the procurator of the poor, to destroy the proof of adultery drawn therefrom; for this single response would be enough, namely, that these proofs were all gathered together in the prosecution for pompilia's flight, made at the instance of count guido, he pressing hard to gain the dowry because of her adultery. and this was insisted on by the counsel for the fisc, who wrote acutely upon these matters at that time. and yet, in the report of the cause these presumptions were not considered by the judges because of their irrelevance. this is evident from the lightness of the penalty decreed against the canon. and so the examination of these cannot be renewed after the fisc has yielded and quietly acquiesced in the sentence, from which it could appeal if it considered itself wronged. nor could guido legitimately have recourse to such awful vengeance by his own hand. but lest some feature of the case may be left untouched, and that the justice of the decree may be more clearly asserted, i have taken the pains to confute these briefly. and since, in the first place, the cause of flight is considered by the defence in order that they may prove that the said flight was entirely illicit and was planned for easier criminal knowledge, the proofs brought for this purpose should be examined. the chief of these was drawn from the asserted letter of francesca pompilia, written to abate franceschini. this makes pretence that her parents urged her to poison her husband, her brother, and her mother-in-law, to burn the home, and to return to the city with her lover. but one cannot have a better refutation of this than the very tenor of that letter, including matters that are so improbable, yes and indeed incredible, that it was rightly rejected by the judges. for who can be found so destitute and ignorant of filial love and duty as to make himself believe that a mere child, not more than fourteen years old [citation], married away from her father's home, grieving bitterly for the departure of her parents, and wretchedly kept in the home of her husband, so that she was obliged to have recourse to ecclesiastic and laic authorities, could have written to her husband's brother (who was so unfeeling toward them), with a calm mind, of such base counsels and commands given by them, unless, as she ingenuously confesses, she was compelled by her husband to write it? nor could she, without great peril, refuse her husband, who was demanding this. such an improbability alone is enough to thrill with horror those reading it, and well shows that she had written this not of her own accord, but under compulsion. [citations.] and, therefore, there is no need to examine whether the qualification added to her confession is probable, namely, that her husband had first marked the letters of the said epistle, which she had afterward inked by tracing them with a pen; because she did not know how to write. for possibly she shuddered to confess that she had written such matters, even under compulsion of fear, to the injury of her father and mother. such fear is quite presumable in a wretched wife of tender age, destitute of all help, away from her father's hearth and in her husband's home. [citations.] mogolon says that from the absence of relatives, the presumption of such fear may arise. [citation.] and this is especially true after she had had recourse in vain to the authorities. nor is a sufficient proof to the contrary deducible from francesca's signature to the matrimonial contract, and from the letters that were said to have been written and sent by her in succession to the canon, or else thrown from the window. [citation.] for the very brief signature made in the marriage agreement does not show such skill in writing that with the same ease she could have written so long a letter, inasmuch as daily experience teaches that many are found who can scarcely write their own names. still less can the ability to write be said to be proved by the asserted love-letters; for these were constantly denied by pompilia. nor can these letters be said to be sufficiently verified by the assertion of the said witness for the fisc, namely, that she threw from the window a note, which the canon picked up and then departed. for aside from the fact that the witness stands alone and is of the basest condition, namely a dishonest harlot, and so unsuited for proving a matter [citations], she neither affirms, nor can affirm that the said letter was written by francesca pompilia. likewise the letters found in the prison of castelnuovo might have been written by some stranger's hand. and even though they had been written by her, inasmuch as they are of a later date, they do not prove her skill in writing at some past time; for she could have acquired this skill afterward because of desperation which sharpened her wits, for the purpose of inducing the canon to undertake the flight with her, so that she might escape the peril of imminent death. for in such matters at these, which are variable and can be changed, one cannot well argue from the present to the past. [citations.] and that in fact she did learn to write in arezzo after the departure of her parents is evident from her letter written in the prison of castelnuovo, and found among her private papers after her death. this is given in the present summary, no. . the proofs of the abovesaid letter [to abate franceschini] drawn from the letters of the governor of arezzo, of the reverend bishop, and of bartolommeo albergotti, are so far from excluding the legitimate reason for flight given by herself and the canon, during the prosecution, that they rather favour it. for although they criticised her for having such ill-advised recourse to them, they possibly did this to free themselves from censure for having thoughtlessly turned her away. therefore it is more probable that by them the minds of her cruel husband and of her mother-in-law, who was pitiless and implacable, as experience teaches us, were exasperated all the more. any one may well know that guido's mind was much more embittered after the lawsuit brought concerning the pretence of birth and the rescinding of the dowry contract, and after the publication of pamphlets about the domestic scantiness and the base treatment which they had suffered in the home of the couple in arezzo. his anger was also stirred by his jealous suspicion of the canon (although pompilia's love of the latter was merely pretended for the purpose of winning him) and by his exasperation, that increases the deadly hatred, which arises from a lawsuit about a considerable amount, and much more about an entire property. [citations.] such should the controversy about the pretence of birth be considered. nor can the just fear of the luckless wife as to her deadly peril be denied. and driven to desperation in avoiding this, she might well have fled; for if it is permissible because of blows beyond mere legitimate correction [citations] how much more permissible should it be considered, when the wife was continually afraid that he would kill her either with the sword or by means of poison. and, to avoid this, it was but prudent counsel for her to leave her husband and go back to her father's hearth. it would indeed have been better if she had won her security by having recourse to the right reverend bishop, in order that he might place her in some nunnery or with some honest matron; or to the lord governor, who would have considered her safety and the honour of her husband's family; or if she had fled in the company of some one connected with the household. but the fear of imminent peril does not permit one to take better counsel, and especially a wretched wife of tender age, destitute of all aid and exposed to the fury of her husband and her mother-in-law. and still further, she might well fear that new recourse to them would be in vain, since she had found the former so useless. nor could she find any better way of fleeing safely, wherein she thought lay the sole help for herself, than by using the help and company of the canon, who had been proposed to her for this purpose by the canon conti and by signor gregorio guillichini, relatives of her husband. it is incredible that they would have conspired against guido's honour without the strongest and most urgent reason and without confidence in caponsacchi's honesty and modesty. for one of them, namely gregorio, had offered himself as a companion for the journey and would have carried out his offer if his infirmity had permitted; as we read in the said letter of francesca pompilia found since her death and shown in our present summary, no. , which refers to the same causes, of the infirmity of gregorio and the imminent peril, which did not permit her to await his convalescence. and therefore she is worthy of excuse since she fled for dire necessity in company of the canon, a man of modesty well known by her (as is likewise evident from another letter in the summary of our opponents, no. , letter , in which she calls him the chaste joseph, and from the other letter, in which she commends him for his sense of shame). for if she chose this remedy under dire necessity, she should be excused according to the common axiom, "necessity knows no law." [citations.] nor is an illegitimate cause of flight to be inferred because of the dishonest love with which francesca pompilia pursued the canon in some of these letters. for although they seem amatory, yet they were ordained to the purpose of alluring this same canon, in order that he might flee with her; since, without him, she knew that she could neither carry that out, nor even attempt it. hence the letters can afford no proof of subsequent adultery. for although proof may result from love-letters, according to the authorities adduced by the defence in § _his praehibitis_, yet this is avoided, if the letters are directed to a permissible end, such as flight to escape deadly peril. for then, inasmuch as the end is permissible, the means are likewise so considered, even though these are not without suspicion; for they are not considered in themselves, but because of their end. [citations.] nor is the proof of adultery hitherto drawn from love-letters so very strong unless they include the implicit confession of subsequent fornication. [citations.] the following consideration is especially urgent in leading to the belief that the luckless girl thought the canon would conduct himself modestly during the journey. for in one of her letters she does not fail to take him to task (who had elsewhere been commended for honesty and modesty) because he had sent her questionable verses (present summary, no. ): "i am surprised that you, who are so chaste, have composed and copied matters so immodest." and further on: "i do not want you to do in everything as you have done in these books; the first of them was so very nice, but these other octaves are quite the contrary. i cannot believe that you, who were so honourable, would become so bold." from this sincere rebuke it is quite evident in what spirit these letters were written, even though they are filled with blandishments and proofs of love; for she shrank even from the dishonourable verses sent to her. hence the letters should be understood according to the intention of the one writing them, just as one's words are. [citations.] and should not the supposition that the unfortunate wife had destroyed her matronly shame in the journey be therefore considered trivial and improbable? for she had quite enough to do to provide for her own safety by headlong flight. nor is it probable that she was tempted by the canon, since the love between them is proved merely by the said letters which were preparing for the flight. and these letters show her solicitude for his modesty and continence, since for the mere sending of them she had made such complaint. for she feared lest he might become too bold, as is evident from details of the letter cited above. nor are examples lacking of continence observed during a longer and easier journey, which had been undertaken and completed by lovers, even though they might lawfully have indulged their love. hence it is not improbable that the wretched girl kept herself scrupulously within bounds; for she was in deadly peril, which she hoped to avoid by precipitate flight. the other proofs of this pretended adultery are far weaker, and were rightly ignored in the report of the case, both as regards the flight and as regards the decreeing of torment; for mutual love between her and the canon cannot be said to be sufficiently proved by the abovesaid letters; for they were preparatory to this prearranged flight. the entry and egress to and from the home of francesca by night is proved by a single base witness. nor should even such entry be considered to be for a bad end, since it was in preparation for the flight. for when we have a permissible cause given, to which a matter may be referred, it should not be attributed to one that is illegitimate and criminal. [citation.] to this reason also should be referred her readiness in showing herself at the window by day and night at the hiss which gave signal that her pretended lover was passing. for since her love might be a mere matter of pretence for the purpose of winning him to give her help in the flight by affording her his company in the journey, these marks of love can be of no further import than the pretended love itself. the unfortunate wife employed it as a stratagem, indeed, that she might provide for her own safety. and so this response recurs: "if the end is lawful, the means ordered toward carrying it out cannot be condemned." the pretended insidious manner of preparing for the flight and putting it into execution by means of an opiate administered to her husband and the servants (so far as it is proved, and it was by no means proved in the prosecution) affords indeed a proof of her flight, but not of adultery; for it was prearranged, not for that purpose, but to escape deadly peril, to which the wife would have exposed herself, all too foolishly, unless she had made sure that her husband, who was lying in bed with her, was sound asleep, or unless she had contrived some such easy way. the ardour shown in some of the letters is indeed a sign of love, according to the word of the poet: "love is a thing full of solicitous fear." [ovid, _heroides_, i. .] but since love was pretended for a legitimate end (as was said) she could also make a show of ardour for feigning love, since it tended toward the same end of winning his goodwill, so that possessed of his true service she might escape. therefore, from this pretended love and these feigned signs of love, one cannot argue that their departure together from the home of the husband and their association during a long journey gives proof of the pretended adultery; because even in true and mutual love continence has been observed, which is certainly more difficult. nor are the authorities adduced by the defence, in § _accedit quod_, applicable; because that text has regard to a woman spending the night outside of her husband's home and against his will, without just and probable cause, as is evident from the words of the same. this decision is not applicable to our case, since the wretched pompilia left her husband's home and went to her father's hearth that she might escape the deadly peril which she feared was threatening her. and so, since she did it for just and probable reason, the condemnation of the aforesaid text is turned away. and farinacci so explains the assertion. [citations.] "but it is otherwise if done for reason, because the mere spending of the night together does not of itself prove vice; for a case can be given where a wife spent the night with men, and yet did not break her marriage vow." [citation.] since this possibility is verified in our own case also, the proof of subsequent adultery cannot be inferred from her flight and association with him in the journey, for the purpose of providing for her own safety. their mutual kissing on the journey, so far as it is proved, affords no light presumption of violated shame; but the proof of it is too uncertain; for it rests upon the word of a single base witness, who swears to matters that are quite improbable, namely that, while he was driving their carriage very rapidly, he saw francesca pompilia and the canon kissing one another. how full of animus this deposition really may be is evident from this fact--that during the night he saw a momentary and fleeting deed, without giving any reason for his knowledge, such as that the moon was shining or that some artificial light afforded him the opportunity to see it. [citations.] the improbability, or rather incredibility, is increased because, while the witness was intent on driving the carriage with such great speed as to seem like flying (as another witness testifies), how could he look backward and see their mutual kissing? such an improbability would take belief away not merely from a single witness, but from many of them. [citation.] furthermore, there is the possibility to be considered that the jostling together of those sitting in the carriage might have happened from the high speed; and from this fact an over-curious witness might believe that they were kissing each other, although, in fact, the nearness of their heads and faces to one another might indeed be by mere chance, and not for the purpose of shameful and lustful kisses. because whenever an act may be presumed to be for either a good or a bad end, the presumption of the evil end is always excluded. [citations.] and so in the said report of the prosecution for flight, this presumption was justly passed over because of lack of proof; nor would it have been rejected otherwise. nor can this improbable and prejudiced deposition of the said witness receive any support from the pretended letters, in which francesca thanks him for the kisses sent, which she says would be dearer to her if they had been given by the canon himself, and sends him back ten hundred thousand times as many. for it cannot be thence inferred that if the opportunity were given their mutual kissing would follow, since these words were offered as serviceable and alluring for the purpose of winning him over; nor do they involve an obligation. [citations.] and therefore they do not lead one to infer that they were carried out, especially since francesca many and many a time warned the canon to observe due modesty. and when she found that he had transgressed its limits by sending her dishonourable verses she abjured him not to become bold in urging his passion. this is far removed from impure desire to receive his kisses, which is formally stated in the said letter, as it is without any thought of injuring her matronly honour. the use also of laic garb, in which the canon was found clothed, can afford no proof, because, as he is no priest, he cannot be said to be forbidden to do so on a journey. and this was probably arranged in good faith to conceal himself and to avert scandal, which might be conceived at seeing a priest with a woman in the flower of her age and, as i have heard, of no small reputation for beauty, journeying without the company of another woman or servant. [citation.] and so the authority of matthæus sanzio, etc., is not applicable, because in his case there was no concurrent cause on account of which the priest might approach with improper clothes and girded with arms; and he was found by the husband, either in the very act or in preparation thereto, and was killed on the spot. in such a case the proofs of adultery may well be admitted for the purpose of diminishing the penalty, and they were gathered by the same author to that end. their sleeping together on the same bed, or at least in the same bedroom, at the inn of castelnuovo, was not given consideration in the report of the prosecution for flight, because of defect of proof. this charge was indeed denied by francesca pompilia, and the canon frankly confessed merely that he had rested for a little while on another bed in the same room. nor ought a brief stay in that room be magnified to a crime, since it should be attributed to his guardianship of the said francesca, whom he was accompanying on the journey, and hence was under obligation to guard her lest some evil might befall her. whenever an act may be said to be done for a good purpose all suspicion of evil ceases. in these very circumstances, gravetta [citation] says that the interpretation should tend toward lenience, even though the harsher interpretation seems the more probable. nor does it suffice as a full proof of adultery (if one is arguing a criminal case) that a young man be seen alone and naked with her, and that he be found locked in the bedroom with the wife, even though he have his shoes and clothing off; because these matters may be merely preparatory. and much less can proof of adultery arise from his brief stay in the same bedroom for the purpose of protecting her. nor can proof of their having slept together be drawn from the deposition of the servant of the same inn who asserted that he had been ordered to prepare only a single bed. for it does not follow from this that both of them slept in it; but this was done because only pompilia wished to rest a little while to refresh her strength, which had been exhausted by the swiftness of the journey they had made. the canon was keeping guard over her and preparing for the continuance of the journey; and so, when the husband arrived, he was attending to this by ordering that the carriage be made ready. hence no proof of their having slept together can result from this deposition, and it was justly rejected by the judges, so that it needs no further refutation. and although francesca pompilia, in her cross-examination, tried to conceal a longer stay at the said inn by asserting that they had arrived there at dawn, yet no proof of adultery may be drawn from the said lie, for she made that assertion to avoid the suspicion of violated modesty, which might be conceived from a longer delay and more convenient opportunity. and so, inasmuch as her confession would have done her no harm, even if she had acknowledged it with circumstances leading to belief in the preservation of her sense of honour, neither can this lie injure her. [citations.] since, for these reasons, the proof of the pretended adultery is excluded and almost utterly destroyed, no attention should be paid to the fact that count guido, in his confession, claims the mitigating circumstance of injured honour, as regards both his wife and his parents-in-law; and that this confession cannot be divided for the purpose of inflicting the ordinary penalty. for authorities of great name are not lacking who affirm that a qualification to this end added to a confession, ought to be rejected; and above the others, is bartolo [citation], who proves this conclusion by many reasons, and responds to those given contrary [citation], where it is said that a judge should not admit such qualified confession. [citations.] nor is such a plea of injured honour always in one's favour in avoiding the capital penalty, but only when vengeance is taken immediately; or after an interval, according to more lenient opinion, when the adultery is proved by condemnatory sentence or by confession. but the reins of private vengeance would be relaxed far too much to the detriment of the state if, when proof of adultery were lacking, a stand could be made for the purpose of diminishing the penalty upon some qualification added by the defendant to his confession. because in this way a witness might make a way of escape in his own cause, which is not permitted to any one. [citations.] and nothing more absurd can be thought of than that the burden of proof incumbent upon him for escaping the ordinary penalty might be discharged by the mere assertion of the defendant. nor should we admit the opinion that, even when the adultery is proved, a husband may kill, after an interval, an adulterous wife without incurring the capital penalty, since the weightiest authorities deny that. [citations.] bartolo, in distinguishing between real and personal injury, affirms that when injury is personal, it should be resented immediately; but if it be real it may be resented after an interval. [citations.] and gomez declares: "i hold the contrary opinion, indeed, that a husband may be punished with the ordinary penalty of such a crime as murder; and for this reason he may not by any means be excused, because murder cannot be committed to compensate for a crime or for its past essence, unless one kill in the act of flagrant crime," etc. and in subsequent numbers he responds to reasons given to the contrary. [citation.] gaillard, after he says that murder committed for honour's sake is permissible, states that this exception should be understood to hold good if the injury be resented immediately, but that it is otherwise if done after an interval. in this case the retort is more like vengeance than the defence of honour, and the offender is held to account for the injuries. [citation.] much less can it be claimed that the vengeance was taken immediately because the husband executed it as soon as possible, according to the authorities adduced by my lord advocate of the poor [citation], where he tries to show that since guido was unarmed, or insufficiently armed (that is, he was girded only with a traveller's sword), he could not attack the wife accompanied by the canon; for caponsacchi, as he claims, is strong and bold, and accustomed to sin in that way, and was carrying firearms. and the wife showed herself ready to die in the defence of her lover; for it is said still further that the wife rushed upon guido with drawn sword, and was about to kill him, if she had not been checked by the police officers. but the opportunity to kill an adulteress is not to be so taken that a violent death may be visited upon her with all security and without any risk. for every legal opinion giving excuse for diminishing the penalty shrinks from this. for such diminution of the capital penalty follows because of the violence of sudden anger, which compels the husband to neglect the risk to his own life, that he may avenge the injury done him by the adultery. and so this first opportunity, as spoken of by the authorities, in order that murder may be said to be committed immediately, should be understood to be whenever an occasion first offers itself, in excusing the delay in taking vengeance either because of absence or for some other just reason. such is the fact in the case about which matthæus sanfelix writes, _contr._ . for in that case, the adultery was committed in the absence of the husband, and the wife had run away, so that he could not have avenged himself earlier, as is evident from the narrative of fact, given in no. , and no. established this conclusion: "so they are excused if they take vengeance as soon as possible, since it then seems that they killed incontinently." but who can say in our case that the husband took the first chance, since when he found his wife in the very act of flight, at the tavern of castelnuovo, he abstained from vengeance with his own hand, and turned to legal vengeance, to which he had always clung. and indeed he charges himself with the worst baseness when he asserts that he was unequal to the task of taking vengeance because of the fierce nature of the canon; since, when the latter had been arrested, guido could have rushed upon his wife. nor ought the kind of arms they carried to have alarmed him, because, according to the description made in the prosecution, it is apparent that the canon was wearing only a sword. and so they were provided with like arms. he would not have taken such care of his own safety if he had been driven to taking vengeance by the stings of his honour that needed reparation, even at some risk to himself. for just anger knows no moderation. and he should lay the blame on himself if, alone and insufficiently armed, he had followed up his wife, who was fleeing, as he might fear, with a strong and better-armed lover. his very manner of following her proves the more strongly that his mind had turned toward legal vengeance, for the purpose of winning the coveted dowry, rather than to vengeance with his own hand for recovering his honour. for facts well show that such was his thought. [citations.] likewise the delay of the vengeance after the return of the wife to her father's home excludes the pretended qualification that the vengeance was taken "immediately," because he could not put it into execution sooner. for the return home took place on october of last year, and the murder was not committed till the second of january of this year. and we should rather assert that he was waiting for her confinement, which took place on december , in order that he might make safe the succession to the property, for which he was eagerly gaping; because he immediately put into effect his depraved plan by destroying his wife and her parents with an awful murder. hence, from a comparison of these dates it will be easy to see this, and it is evident with what purpose he committed the murders, and whether this vengeance for the asserted reparation of his injured honour may be said to have been undertaken "immediately," that is, as soon as opportunity was given, according to the authorities adduced on the other side. then when he had chosen legal vengeance by the imprisonment of the wife and of the pretended lover, and by the prosecution of the criminal cause, it was not permissible for him to go back to vengeance with his own hand; and in taking that he cannot be said to have taken vengeance immediately. he also violated public justice and the majesty of the prince himself. this single circumstance greatly exasperates the penalty and increases the crime. [citations.] [but the above is true] in spite of the fact that the conclusions adduced by the advocate of the poor, in § _et tantum abest_, may be applicable, and likewise the authorities approving those conclusions, on the ground that it is not presumable that the husband has remitted the injury, but rather that his desire to avenge himself has continued; and that this excludes the charge of treachery, even though the husband use trickery in taking vengeance. because in the present case the question is not as to the nature of the murder, from which it might be claimed to have been treacherous. the husband indeed did not conceal his injury, but rather laid it bare by turning to legal vengeance. although this is possibly less honourable, yet since it was pleasing to him, for the purpose of gaining the dowry, he could not when frustrated in this hope, because the adultery was unproved, take up again the vengeance with his own hand. and this is true even though he pretends as an excuse for his delay that he could not accomplish it sooner. for since the delay and hindrance arose from his own act he could not take therefrom the protection of an excuse. [citations.] but, however he might find excuse for the barbarous slaughter of his wife while under the authority of the judge at the instance and delivery of her husband, certainly the murder of pietro and violante should be considered utterly inexcusable. in his confession he has tried to apply to them also his plea of injured honour, because of their pretended complicity in urging the flight of his wife and in her asserted dishonour. yet no proof of this qualification can be brought, nor did the slightest shadow of it result from the prosecution for flight. and this is proved to be improbable, and utterly incredible, from merely considering the fact that abate franceschini, brother of the accused and confessed defendant, would not have consented that she be committed to their custody if he had had even the slightest suspicion of their complicity, since he so keenly desired the reparation of their honour. this fact, which was plainly confessed in an instrument prepared in the statement of fact in the italian language [pamphlet ] and very stoutly denied by the procurator of the poor, was admitted by his own wonderful ingenuity in denying merely that notice had reached the husband, or in claiming that the fisc could pretend to no more than mere presumptive knowledge in guido. but, still further, such knowledge is quite probable and is drawn from strong proof. for it is very probable that guido was informed by his brother of his wife's departure from the monastery, of her establishment in the said home, of the obligation assumed by her parents to provide her with food, and especially of her detected pregnancy. [citation.] but we are not now arguing to prove the husband's knowledge thereof, but to draw from that consent of abate paolo a proof which would exclude the pretended complicity of pietro and violante in the dishonour of the wife, which latter is by no means proved. so far is such complicity from being proved as regards pietro, that the very contrary is quite evident from his will, made in , after litigation had been instituted about pompilia's pretended birth. in this will, notwithstanding the litigation, in the first place he leaves as his usufructuary heir violante his wife, and after her death francesca pompilia, laying upon her the obligation to dwell in the city and to live honourably. this is evident from the details of the said will given in our present summary, no. . in this he also asserts that she had thus far conducted herself honourably, and he claimed to leave the annuity to her because of her good manner of life. and so it becomes still further incredible that he, while alive, was willing to conspire in her dishonour, from which he shrank even when dead. for the income was to be taken from her if she should live a dishonest life, and he urged her in case her marriage were dissolved to assume a religious dress, and he left her a fat legacy to that end. nor can it afford any proof of this pretended complicity that when guido had made pretence of delivering a letter sent to them from the canon, the doors were immediately opened by violante to the assassins. the attorneys for the defence try to argue from this ready credulity that the name of the lover was not hateful to violante, and that hence his intimacy with francesca was not displeasing. but since the canon was the author of her liberation from deadly peril by bringing her from her husband's home to her father's hearth at the neglect of his own risk, it should not seem wonderful that violante should give proof of a grateful mind for the help given her daughter and should open the door. nor can one infer therefrom consent in unchastity, from which their past acquaintance had been entirely free. much more is this so at a time when he himself was absent and in banishment at civita vecchia. therefore the true cause, on account of which the comparini also were murdered, could be no other than the hatred with which the husband had been aflame; [and this first of all was] because of the lawsuit concerning the supposed birth, which they had brought, and which had deceived him in his hope of gaining a fat dowry and inheritance; [and second] his desire for vengeance because of the pamphlets distributed at the time of the said lawsuit, and which had exposed the meagreness of the home comforts and the wretched treatment they had received in the home of the husband. these two do not excuse guido from the penalty for premeditated murder, and indeed increase it, even raising it to the crime of _læsa majestas_, according to the well-known order of the constitution of alexander, as was proved in our past information, § _accedit ad exasperandam_. to escape the penalty assigned thereto by the disposition of this decree, in vain does he turn to an excuse drawn from supervening provocation. [citation.] but so far as it is claimed that this crime resulted from the counsel they gave toward her flight, and their complicity in the same, the proof of such complicity is entirely drawn from the asserted letter, written by francesca pompilia to abate franceschini. but this letter has been completely rejected, and even spurned by guido himself, since in the prosecution for flight we find no insistence was made that action should be entered against pietro and violante for their pretended instigation. pietro, moreover, had long ago broken off the lawsuit brought as regards the pretended birth and the revocation of the dowry contract, and so this complicity cannot be made to seem the sole provoking cause, which would exclude _causa litis_. for such a cause should be true and not pretended, and should be in accord with the crime committed. [citations.] these excuses, indeed, which are claimed to be drawn from complicity in the asserted dishonour, are still further excluded by lack of proof, both of the impurity and of their connivance therein; and so the provocation implied therefrom is shown to be entirely irrelevant, and possibly fraudulent. the other suit for divorce, brought in the name of francesca pompilia, it is vainly claimed is made void because of the asserted invalidity of the summons; for this summons was executed against abate franceschini, who lacked the authority of a proxy. yet his authorisation was quite full enough for a lawsuit, as is evident from its tenor as given in our present summary, no. , and accordingly when a suit was brought it was ample for receiving a summons. [citation.] we are also dealing with the conditions of the constitution of alexander and of the order of the banns given against those who commit offence on account of lawsuits. hence the reply is not relevant, which is given by the procurator of the poor in § _quae etiam aptantur_, that when the dishonesty of the wife is established her impunity from the wrath of her husband, who would take vengeance, should not be permitted by the introduction of a divorce suit. nor can such murder be said to be committed for the reparation of honour when committed in anger at a lawsuit. for he takes for granted as proved, what is in question, namely, the dishonour of the wife, the proof of which is quite lacking. and guido might have proceeded to such an extreme if, as soon as the adultery was committed, his wife brought a suit for divorce; but it is otherwise since he tried that revenge after the way of legal vengeance had been chosen by bringing criminal charge for the pretended adultery and for the purpose of winning the dowry. for after he was frustrated in this hope (since no proofs of adultery resulted from the prosecution), and after her husband's mind had been exasperated, she ought to be permitted to provide for her own safety by begging for the remedy of divorce. and while such judgment is pending any murder inflicted upon her ought surely to be expiated by the penalties inflicted under the sanction of the alexandrian constitution and of the banns. for the provision of this decree is applicable, since the murder was committed while the criminal cause, brought against her for pretended adultery by her husband, was still pending. and this decree includes both civil and criminal suits, as is evident from reading it. likewise the assembling of armed men, and their introduction into the city for accomplishing more safely the murder of the entire family, increases the crime to _læsa majestas_, and also necessitates the increasing of the punishment, as was affirmed in our former information. nor is this avoided by the replies given, or rather repeated, by the defence, and especially by the response that since the principal offence was committed for honour's sake (and hence the ordinary penalty of the _lex cornelia de sicariis_ has no application for that reason), so likewise the penalty for assembling men, imposed by the apostolic constitutions and the general banns, cannot be inflicted; for the latter is included with the penalty for the principal offence, which alone is to be attended, since the spirit and purpose make differences in crimes. [citations.] because the order of the said constitution and banns would prove utterly vain if the penalty for assemblage should cease, whenever the assembly were made for the purpose of committing some crime that is punishable with a milder penalty. [citation.] this bull indeed is applicable even when men are called to arms in a permissible cause and for a good end; because by it the supreme pontiff wished to provide for the public security and to restrain the audacity of those laying down the law for themselves. hence all the more shall it have place when the assembly may be made for an evil end, namely for committing crime, even though the crime may not deserve the ordinary death penalty, and when the crime actually follows. [citation.] spada gives this reason, that the pontiff in establishing this constitution considered only the uproar and other ills which are accustomed to arise from the assembling of armed men to the injury of the public peace. and although his opinion was rejected by the authorities adduced by his honour, the advocate of the poor, in § _non refragante_, this refutation does not apply to the assembling of armed men to an evil end (even though this end is not so criminal that the death penalty may be inflicted), but to their assemblage for a permitted cause of regaining possession immediately, by meeting force with force. even in this latter case spada holds that there is place for the order of the bull. hence the refutation given above does not prevent the application of the provision of the abovesaid constitution to our case, since the assembling was prearranged for the murder of an entire family, which was put into execution with reckless daring. nor may the opinions of the said judges of the sacred rota, requiring that the assemblage be directed against the prince or the state, and not to commit some other crime, stand in the way; because if this qualification were accepted as true the decree would be vain which had raised the act to the crime of _læsa majestas_ and rebellion; for this crime would result plainly enough from the deed itself, and from the intent to disturb the peace of the prince and the state. and so far as the opinion affirmed by these authorities does have foundation, it can be applied when we investigate the order of the constitution, and not of the banns issued later. for this decree would prove vain and useless if the capital penalty, imposed thereby against those assembling armed men, could be applied only when the crime for which the assembly was made was punishable with the same penalty. and even if this necessity be admitted, the application of the constitution cannot be avoided, because no plea of injured honour can be alleged in excuse for the murder of pietro and violante, and it had not at all been proved as regards francesca pompilia. likewise the preparation and use of prohibited arms is also punishable with the capital penalty, if we investigate the order of the banns and constitutions of alexander viii., of sacred memory. nor is this sufficiently avoided by the response given by the defence that it is included in the main offence; so that no greater penalty can be inflicted for it than the main crime itself deserves. for what we have said above as regards "an assembling" is opposed to such a confusing of the punishment of the banns, and the authorities adduced in our past response, § _nec delationis_, affirm the contrary. and those authorities cited for the contrary opinion should be understood to apply only when one is dealing with an insult, or with murder committed in a quarrel, or in self-defence, or for the sake of immediate reparation of honour. [citation.] the difficulty is at an end in our case, because of the clear disposition of the banns, which expressly declare and command that the penalty for the carrying of arms is not to be confounded with the penalty of the crime committed therewith. nor does the response given by the procurator of the poor seem strong enough to avoid this; namely that when, under the common law, the banns receive only a passive interpretation, merely the crime of preparing and bearing arms for committing murder is considered; but that it is otherwise if the arms are borne, for no ill end, and then a crime is committed with them. because it would be too harsh for one bearing arms for no ill end and then sinning with them, to suffer a greater penalty than one preparing arms to commit crime, and carrying his purpose into effect. hence these banns never can receive such an interpretation. for since by them the carrying of arms is forbidden as pernicious and as affording occasion to commit crime, much more should the bearing of them when purposed for committing crime be considered prohibited and punishable with a rigorous penalty. this is especially true when we consider the declaration that the crimes are not to be confounded with one another. there is left, finally, one other qualification, which greatly aggravates the crime, namely the violating of the home assigned as a prison with the consent of abate franceschini. and this is so in spite of what can be alleged as to guido's ignorance of this circumstance. because in the said writing prepared in italian for giving true notice of the fact [pamphlet ], it is asserted that the entire management of the cause was left and committed to this same brother, since guido had left the city. hence it is quite incredible that guido was not informed by him of so important a matter. and as concerning the distinction between violating a public prison and mere custody in a home under bond, and as to offence permitted therein for honour's sake, we have given sufficient response in our past argument, § _quibus accedit_ and those following. for the same reasoning is applicable in both cases, since in both the person detained is under the protection of the prince whose majesty is accordingly insulted. and the excuse would hold good if we were arguing about the resenting of an injury offered in prison. under these very circumstances do those authorities adduced by the defence speak, as is evident from their recognition of them. therefore, in the present case many grave qualifications are present, which increase the crime, and on account of these his honour, the advocate of the poor, admits in § _agnoscit fiscus_ that the penalty should be increased. nor can such increase of penalty be made good except by death. for even if the adultery were proved, as it is not proved in our case, the mere murder of the wife, when committed after an interval, could demand only a diminution of penalty, according to the more lenient opinion. hence the justice of the decree for the torment of the vigil should be said to be sufficiently asserted and vindicated against opposing reasons. and now that confession has followed, there remains only that condign punishment be inflicted in expiation of this awful crime. giovanni battista bottini, _advocate of the fisc, and of the reverend apostolic chamber_. [file-title of pamphlet .] _by the most illustrious and most reverend lord governor in criminal cases:_ _roman murder-case with qualifying circumstance._ _for the fisc, against count guido franceschini and the others._ _response of the lord advocate of the fisc._ _at rome, in the type of the reverend apostolic chamber, ._ romana homicidiorum cum qualitate [pamphlet .] most illustrious lord: the matters deduced by his honour, the advocate of the poor, for the defence of guido franceschini, who is accused of three murders with very grave qualifications which magnify the same, are of no real force in proving [first] that he should not be punished with the ordinary penalty of the _lex cornelia de sicariis_, inasmuch as he had confessed these crimes, and [secondly] that simple torture only should be demanded for gaining the truth as to these, and that the torment of the vigil should be omitted. i will attempt to show this, in responding to these points singly, so far as the excessive scantiness of time admits, and will keep my eyes on the rights of the fisc, as the duty of my office and the dire atrocity and inhumanity of the crime demand. the chief ground taken by my lord consists in placing on an equality [first] a case of vengeance taken immediately by the husband with the death of the adulteress found in her sin, and [second] that of one slain after an interval when the wife is plainly convicted of adultery (as he claims is proven in our case). but this falls to the ground both in fact and in law; and hence the inference for the moderation of the penalty drawn from this same parity is likewise shown to be without foundation. in fact, the proof of the pretended adultery is quite deficient according to what i deduced fully in my other information. in that, i have confuted singly his proofs, or rather suspicions, resulting from the prosecution, to which his honour attaches himself. i have shown that the wife's flight in company with canon caponsacchi, the pretended lover, was for a legitimate reason (namely the imminent and deadly peril, which she feared), and not from the illicit impulse of lust. the participation and complicity of the canon conti and signor gregorio guillichini, relatives of the accused, in forwarding the same, ought to prove this. for they would not have furnished aid if she were running away for the evil purpose of violating her conjugal faith, even to their own dishonour. but they well knew the necessity of the remedy, and that it was to free her from peril. and a witness for the prosecution in the same trial for flight swore to having heard this from signor gregorio. and they gave their aid in carrying this out. nor is it at all relevant that, in the decree in condemnation of the same canon to banishment in civita vecchia, the title of "carnal cognition" was written down; because, as was formerly responded, the alteration of that was demanded, and likewise the substitution of a general title relative to the trial. and since no proofs of it resulted either from the prosecution or from the defences which the unfortunate wife (who was dismissed with the mere precaution of keeping her home as a prison) could have made, if she had not been so horribly murdered, and since the said decree, issued without her having been summoned or heard, would be void, the inscription made by the judge in the records as a title could not convict her of that crime; but only the truth of the fact resulting from the proofs should be considered. [citations.] i acknowledge that the accused should have been considered worthy of some excuse if he had slain his wife in the act of taking her in flight with the pretended lover; since for this purpose, not merely the absolute proof, but the mere suspicion of adultery committed, would be enough. [citation.] but when, after neglecting the pretended right of private vengeance, he sought out with entreaty public vengeance, by having her arrested, he could not thereafter, while she was under the public authority of the judge, take private vengeance by butchering her who had no fear of such a thing. the suspicion of a just grievance, which is difficult to restrain when aroused, excuses the husband in part, if not entirely, whenever he takes vengeance immediately under the headlong impetus of anger. but when the vengeance is after an interval, and while the cause is in the hands of the judge, and the victim is imprisoned at his own instance, this does not hold good, as will be proved further on, by showing the irrelevance of the principle assumed. nor does the glossa in the alleged text, in the law of emperor hadrian, stand in the way; because it speaks of a son taken by his father in flagrant adultery with his step-mother, and killed by the father immediately. [citation.] and there is a wide difference between a father and a husband killing after an interval; because, as farinacci adds, a father has the greatest authority over his son, and by ancient law could even kill him. and certainly the husband does not have this. the law also more readily excuses a father, because he is always supposed to take good counsel for his child, from the mere instinct of paternal love. but one does not have this same confidence as regards a husband, who is accustomed to conceive unjust suspicion of his wife more readily. hence it is not permitted that he kill her on mere suspicion after an interval. nor is he in any way to be excused on this account, according to the text. [citation.] "the devotion of a father's love usually takes good counsel for his own children, but the hot precipitancy of a furious husband should readily be restrained." [citation.] this is so far true that a father is not excused unless he kill, or at least severely wound, his daughter along with the adulterer; so that it should be attributed to fate, rather than to paternal indulgence, that she escape death. and this has been passed by law-makers for no other reason than that such a grievance, provoking to rash anger, is required for excusing a father, so that he may not spare his own daughter. but since this statute is not to be found among the laws about husbands, the manifest difference between the two, because of the husband's excessive readiness to seize a suspicion and fly into a rage against his wife, is plainly revealed. nor is mere suspicion a sufficient ground to diminish the penalty for a husband who kills his wife after an interval. this is evident from the very authorities excusing him in such a case, whenever the adultery is proved either by the confession of the wife or by other proofs, so that she can be said to be convicted of it. [citations.] bertazzolus says: "i have seen the matter so regarded in the contingency of such a fact, and the husband has been excused who had killed an adulterous wife, not found in the very act, but whose adultery was really and truly existent and was quite plainly proved." hence it is plain, from those very authorities adduced by his honour, that the husband who kills his wife after an interval is not excused because of mere suspicion, or because of an adultery case which is still pending judgment, and which he himself had brought. in law, also, is his assumption proved to be without foundation, which places on an equality [first] vengeance taken immediately, that is, in the very act of taking the wife in adultery, or in acts immediately preparatory, which lead him to such a legitimate belief; and [secondly] vengeance taken after an interval, even when the adultery is evident from such proofs as render it perfectly clear. there are many authorities who urge the diminution of the penalty for the following reason which they give--that the sense of injured honour always keeps urging and provoking to vengeance, and that a wife may be well enough said to be taken in adultery, when she has either confessed it or been convicted of it. and these authorities have been collected with a full hand by his honour, and i myself recently pointed out one of them. but the contrary opinion is the true one, and is accepted in practice. to this fact the most distinguished and most skilful practitioners of our time in criminal law bear witness. these are [first] farinacci, where, after he has first learnedly answered the reasons and authorities adduced to the contrary, he concludes that he undoubtedly believes so as to the law in the case, and counsels that it be so held, unless we wish to err; and [second] canon rainaldi, who also filled the office of procurator of the poor with the highest praise, and so it may well be believed that he was very strongly inclined toward mercy and commiseration, and that he therefore adhered to this opinion in the mere zeal for the truth. and he declared it to be the truer and the more advantageous to the state, and said that one should not depart from it in giving judgment. [citations.] but even if the conflict of authorities might in some manner favour the diminishing of the penalty for the accused, if there had been excess merely in the matter of time; yet he is still to be considered as inexcusable, so that he cannot escape the ordinary penalty, since so many qualifying circumstances are present which increase the crime; and any one of these is punishable with death. to this end we should first consider the assembling of armed men, which is so very injurious to the public peace, and constitutes the crime of "conventicle." in the banns, chapter , this is punishable with the death of its author. it is also declared that it is enough to establish this crime if four armed men are assembled. this had been formerly prohibited under the same penalty by the seventy-fifth constitution of sixtus v. of blessed memory, which had raised it to the crime of rebellion, for whatever reason it might be done. spada proves this fully, asserting that it should generally be so understood in all cases in which the assembling of men has been prohibited. to escape or evade this capital penalty, it is not a relevant excuse that a husband may kill an adulterous wife by armed men brought together. for, however it may be when a husband wishes to kill his wife taken in adultery, and is afraid that the armed adulterer can resist him, and that he may have servants for his aid (in which case he himself cannot take vengeance otherwise than by calling together helpers, as caballus advises), yet in the case of vengeance taken after an interval, and while the wife is under the power of the judge, and on the mere suspicion of adultery, such convocation of armed men cannot be said to be at all permissible. for the seventy-fifth constitution of sixtus v. of blessed memory, prohibits such assembling even on lawful occasion, as a disturbance of the public peace. [citation.] and so it is much more to be prohibited and much the rather to be expiated with the ordinary penalty both of the constitution and of the banns, since it was made for an illegal and damnable end, namely to kill his wife, and his father-in-law and mother-in-law along with her. this is rendered plain by the assertion of the very authorities who excuse from the ordinary penalty a husband who takes vengeance after an interval. and indeed the path of private vengeance, which is hateful to the law, would be strewn all too broadly if, after the husband had chosen legal vengeance and had neglected to avenge his pretended injury in the act of seizing his wife in flight with the pretended lover, he should be excusable in taking vengeance after an interval with all security, by means of armed men, and in killing her while entirely off her guard, and under the power of the judge, without the slightest risk to himself. this is true in spite of the response which might favour him, that he neglected to take private vengeance because he was unarmed, and the wife was found in the company of the canon, who was a bold, sturdy man. the husband should impute it to himself if alone and unarmed he was pursuing his wife, fleeing with the lover. for then he could take associates with better right, and fully armed could pursue her; and in such a case his assembling of men would be somewhat excusable. but this is not so when he takes such awful vengeance after an interval. for if we consider the reason why a husband killing an adulterer or his wife is punished with a milder penalty according to the quality of the persons, if the vengeance follow in the very act--namely, rash anger, which cannot be restrained--the assembling of armed men to do that after an interval is plainly revealed to be illegal. for rash anger would cause him to expose himself to the risk of resistance by the adulterer, who is not accustomed to approach unarmed. because of this risk the penalty is diminished, since it shows that the husband carelessly exposed himself thereto, because of the violence of the anger which blinded him. this is [not] the case in vengeance taken after an interval, taken with all forethought and by means of armed men, so that the husband cannot be afraid that any evil will befall himself in carrying it out. such preparation is quite repugnant to rash anger, which cannot be restrained, and from which excuse is drawn. [citation.] the second qualification that increases the crime results from the kind of arms with which the murder was committed, for these were prohibited by the well-known decree of alexander viii. of sacred memory. this was not merely for the carrying, but even for the keeping, introduction, or manufacture of them for any cause whatever, even under the pretext of military service or the execution of justice. hence they would be all the more prohibited [when carried] for the purpose of taking such impious and awful vengeance by the destruction of an entire family. nor is the carrying of arms in such a case to be confused with the main crime of murder; because when a greater penalty might be imposed for the former, as when excuse for the killing is drawn from injured honour, the carrying of the prohibited arms comes to be punished with the ordinary penalty. [citations.] nor are the authorities adduced to the contrary worthy of attention, for they hold good in the circumstance of murder done in self-defence or because of provocation in a quarrel. [citation.] still further, these are not applicable because they do not speak within the bounds of the constitution, which so distinctly prohibits such arms. for policardus speaks of the _regula pragmatica_ which takes for granted the qualifying circumstance of the crime of treachery from the kind of arms, and he asserts that this order ceases in murder for self-defence, or on provocation in a quarrel, when committed with the said arms. but this judgment differs by the whole heaven from the sanction of our constitution; because the latter was issued for the very purpose of entirely exterminating so pernicious a kind of arms. the third qualification likewise increasing the crime is murder committed because of a lawsuit; for by the well-known decree of alexander vii. of blessed memory, this was increased to the crime of rebellion and _læsa majestas_, punishable with death and the confiscation of goods. this qualifying circumstance as regards the slaughter of pietro and violante cannot be denied; because the accused had won a victory in the lawsuit. and hence the offence should [not] be said to have been committed because of just anger for injury inflicted upon him; [first] by the pretence of birth, which was revealed after the marriage had been celebrated, in order that they might break the marriage contract; [second] by the publication of pamphlets greatly to his injury; and [third] by their conspiracy in the flight of his wife to the injury of the honour of the accused and of his entire family. they claim that since this cause for avenging the injury is graver than that arising from the lawsuit, the murder should be attributed to it, as more proportionate thereto. but the victory he obtained had regard only to the actual possession of the property while the lawsuit was under appeal. and the parents were still pursuing this suit, so that that cause continued and could not be said to be extinct. the injury, indeed, from whatever different causes it may be claimed to have arisen, really came from this same lawsuit. and this had regard both to the pretence of birth revealed, and to the insults contained in those pamphlets concerning the meagreness of the family affairs (which was quite the contrary of the boasted riches, in the hope of which the marriage had been made), and concerning the ill-treatment which the parents of the wife had suffered in the home of the accused. for by this marriage agreement food was to be furnished them. still further, as to any conspiracy in her flight, much less as to any complicity in her pretended adultery, we have no proof at all. and so the cause of hatred conceived because of the lawsuit kept always urging him, and it does not redeem the criminal from the penalty inflicted by the decree of alexander, because the suit might have been injurious to the accused, either in his substance or in the manner. for this indeed presents such a cause as is always required in premeditated murders. nor does it exclude the qualifying circumstance of the lawsuit, and indeed confirms it; since it is explicitly presupposed that injustice had been committed. otherwise an opportunity to take private vengeance would be permitted, which in all law is forbidden, especially when a lawsuit is going on; because then the majesty of the prince is insulted, as was proved in my other information, § _accedit ad exasperandum_. the fourth and, indeed, a very grave qualifying circumstance is drawn from the place in which the crime was committed, namely in the home of those slain. it was also in an insidious manner, by pretending the delivery of a letter sent by canon caponsacchi. for one's home should be the safest of refuges to himself, as was proved in our other information, § _plurimum quoque_. the manner indeed savours of treachery, as is proved not merely by committing murder under the show of friendship, but also at a time when the power and obligation of special caution in the one slain had ceased. [citation.] and this is far from doubtful in our case, for the wretched parents could have had no such apprehension from the accused, who was staying in his own country. to these is added a fifth very grave qualifying circumstance, drawn from the place with respect to the very wretched wife. for she had been imprisoned at the instance of the accused, and was detained in the home of her parents as a prison with the consent of the abate, his brother; and hence she was under public safekeeping, which it were wrong for the accused to violate without incurring the penalty of _læsa majestas_. [citation.] this very grave qualifying circumstance, which increases the crime, cannot be avoided by the dual response given by his honour; first, that we are dealing with no prison properly speaking; second, that one giving offence, or killing in prison, is excused on a just plea of injured honour. neither of these excludes this qualifying crime; for the unsuitability of a prison would be considerable if we could defend a violation of it made by one in prison and so to avoid his own injury, but if it were otherwise when we were arguing in his favour for avenging an injury to himself in a home assigned as a prison. the plea of injured honour can help one only if the offence in prison follow in self-defence under the very impulse of rash anger. in such circumstances the authorities adduced by his honour would hold good. but this is not so in excusing vengeance taken after an interval upon one imprisoned even at the instance of the slayer. for then the qualifying circumstance of the place greatly aggravates the crime, as it is indeed injurious to the public safekeeping and involves treachery, etc. it is therefore very evident that the murders committed by the accused have many qualifications mingled with them, which greatly magnify them. and however far the opinion has weight, which urges the diminution of punishment for one killing an adulteress after an interval, and however much the pretended adultery may be declared to have been proved in the manner required to gain such diminution, even by all those in favour of the milder judgment, still this penalty, because of these qualifications, would have to be increased and the ordinary penalty of the _lex cornelia de sicariis_ in its entirety would have to be demanded. and therefore it seems superfluous to argue about the kind of torture, since in view of these very urgent proofs, of which i understand there is no doubt, and in view of the well-known powers granted to the most illustrious governor, it is quite within limits that the crime should be punished with the ordinary penalty, even if the qualifying circumstance of special atrocity were not present, so that the penalty should not be increased on that account. but such a qualifying circumstance is not wanting here, as it results indeed from the treacherous manner and from the charge of _læsa majestas_, which is provable in our case on three grounds; namely offence committed during a lawsuit, the assembling of armed men, and the violation of public safekeeping, because of the home assigned as a prison. for according to the apostolic constitutions, the crime would be raised to that degree upon the basis of the first and the second; and there should be no doubt as to the power of the prince to do so. [citation.] spada asserts that in such a case, so far as all the effects of law are concerned, it should not be considered a matter of controversy that the qualification of special atrocity, which is in agreement with such a crime, is to be revoked. and in our very circumstances spada gives this opinion in demanding the torment of the vigil. nor can that qualifying circumstance of the person concerned, so far as it is proved, stand in the way of such infliction of the torment of the vigil, which does not allow the death penalty upon a nobleman to be made worse, as is accustomed to happen in very atrocious crimes (because noble blood should not be degraded by such increase of penalty which adds infamy). but for this purpose merely the nature of the crime is considered, and not the quality of the person, which would hinder the execution of a penalty carrying with it such infamy. otherwise the torture of the vigil never could be inflicted upon noblemen, priests, and men in religious office upon whom an infamous penalty cannot be inflicted. but nobility affords no privilege in the manner of torment, especially in very atrocious crimes [citation], etc. giovanni battista bottini, _advocate of the fisc and of the apostolic chamber_. response _to the account of the fact, and grounds in the franceschini case._ [pamphlet .] the splendid statue of nebuchadnezzar fell because it was not firm on its feet. so fall to ground those imagined and forced suppositions concerning the origin of the present execrable murder, which the anonymous writer in his printed pages [pamphlet ] has tried to insinuate into the dull heads of the crowd. this murder was committed here in rome upon three wretched and innocent persons, by guido franceschini, assisted by four men who were armed with prohibited arms, who were brought together for that purpose by the influence of money, and who were kept insidiously for many days at his expense. [these pages claim that] the crime arose from justly conceived anger: [first] because eight months earlier guido had discovered francesca pompilia, his wife, sinning against him in his own house at arezzo, and [then] because she had fled in company with canon caponsacchi of the same city back to rome to place herself again under the protection of pietro and violante comparini, who had raised her as their daughter; and [thirdly] that the suspicion had also grown upon guido that in her precipitate journey she might have broken with the canon her marriage obligations, since certain love-letters were found upon her, from which he unreasonably deduced her adultery, and he supposed that the said caponsacchi was condemned as an adulterer to a three years' banishment at civita vecchia. and these pages try, under the pretence of injured honour, to render guido's crime less grave and to excite compassion, no less in foolish persons than in the hearts of our most religious judges, for the purpose of disposing them toward a milder penalty and one out of keeping, according to the laws, with the quality, form, and circumstances of this crime. and this in substance is all that is claimed by the author of the pamphlet entitled _notizie di fatto, e di ragione nella causa franceschini_. but they are indeed very much at fault in their account of that tragic history, which had a different beginning and an occasion independent of the imagined ground of honour. in that pamphlet it was presupposed all too bitterly, that guido's honour had been injured by his wife; whereas she always preserved her sense of shame and had well observed the laws of conjugal honour, as is plainly shown in this present article. that this sad catastrophe, this slaughter of an entire family, did not proceed (as the anonymous author claims in his pages) from the pretended sense of injured honour, but from damnable greed, one can very clearly see by considering the fact that for this very object the unfortunate marriage with francesca pompilia was entered into by franceschini. for it was taken for granted that after the death of her supposed parents she would surely fall heir to a considerable property. all the more ought we believe that the crime was committed because of hatred arising from the three lawsuits then pending; that is, two in the civil courts and a third in the criminal courts. one of these was as to the legitimacy of the parentage of francesca pompilia, the wife, and the nullification of the dowry-agreement, and was brought by pietro in the tribunal of the sacred rota. the second suit was for divorce, and was brought by the said francesca pompilia before the vice-governor. the third is a criminal suit, as to the pretended adultery, which is still pending in the tribunal of his excellency the governor; this latter was brought under the very impulse of greed, to gain the entire dowry. since this fact was conclusively evident in the case introduced by the said franceschini, he was deceived in this hope of gain by the failure of the proofs, which the defence caused to vanish utterly, as they could do by means of the wife. hence he broke into an excess so tragic and so deplorable as to reveal clearly the tricks and frauds practised for the purpose of bringing about that marriage. here then are the plain proofs that this is the truth. guido franceschini was staying at rome in idleness, out of the service of a certain cardinal, without a soldo, by which service he had provided for himself up to that time. his usual loafing-place was in the shop of certain women-hairdressers, where he often announced his intention of setting up his house with some good dowry. he also boasted of the grandeur of his country, his birth, and his property. by his promises he induced this woman to find him a chance for such a marriage, and she informed him of the opportunity in the said francesca pompilia. the latter was then esteemed to be the true and legitimate daughter of pietro and violante comparini. he set about this enterprise with the aid of his brother, abate paolo, using the astute prudence with which the malign serpent advanced his designs in paradise to subvert adam into disobeying god's precept and into eating the forbidden fruit; for [satan] considered the matter in this way: "if i wish to assault the man directly, who is so strong and so resolute, he will turn and give me a sure repulse. it is therefore better that i first tempt the woman, who is of a fickle nature and soft-hearted." and he made his first attack upon eve; because when he had gained his point that he might have her, by her means it would be easier for him to win over adam. "for he first attacked the mind of the weaker sex," are the ingenious words of st. hilary. and so for this purpose did the said guido devise the marriage with the knowledge of his brother, abate paolo, and likewise to this point he succeeded in it. for he avoided talking with signor pietro about the marriage, by whom it would probably have been refused, and wished first to tempt violante, his wife. because by gaining her he would the more easily overpersuade her husband to give his consent. nor was it difficult for him to astound the woman, because he knew how to impress her very well with the thought of the grandeur of his country, of the first-rate nobility of his birth, and of the great income from his patrimony, amounting to scudi. and he gave her an itemised account of it written with his own hand. she was enchanted thereby and, without getting any further information about the matter, she was able to persuade her husband and to extract from him his consent to it. this proves what we read written in proverbs: "a wife takes captive the soul of her husband." he speaks this of mordecai who availed himself of esther, when he wished to placate the anger of ahasuerus against his people; of joab, who used the services of the woman of tekoah when he wished to soften the anger of david against his son; and of the philistines of timnath, when they wished to gain from samson the secret of the riddle proposed to them at the marriage feast. the credulous but deceived woman so cajoled her husband that she at last induced him to sign the marriage agreement providing for a dowry of bonds and, at the death of the said comparini, for all their possession, amounting, as the anonymous writer acknowledges, to the sum of , scudi. and, for the purpose of making the said franceschini guardians of the said property even during the life of the comparini, they had to give up even the income of it. this property consisted of numbers of profitable and well-situated houses, and of bonds. the franceschini also assumed the obligation to take the said comparini to the city of arezzo, and there to feed, clothe, and provide them such service as they would need. this promise was made not without the hope that on account of the insults and sufferings which they would have to bear their death would be hastened. and thus guido would become the absolute master of their property. after having signed the said agreement pietro absolutely refused to go on with the effectuation of the marriage of the said francesca pompilia, with the abovesaid guido, of whom he had had few good reports; and these were far different from the pretended riches and vaunted nobility. hence one may well say of him what persius concludes in his fourth satire: "see what has no real existence; let the rabble carry off their presents elsewhere. dwell with yourself, and you will know how meagre your furnishing may be." at any rate, the said guido joined the said violante, whom he had imbued with his flatteries and endearments, spurning any further consent of pietro by keeping him in ignorance of it. and without the knowledge of the latter, guido contracted the marriage with the said francesca pompilia in the face of the church. and he evermore discloses by this act, which shows so little reverence to the promiser of the dowry, his own greed, not merely for the amount which had been assigned to him in the marriage agreement, but also for the rest of pietro's property. for he felt sure that after pietro's death the property, by the entail of the ancestors, would necessarily fall to the said francesca pompilia, who was already his wife. when, after a few days, pietro found out that the marriage had taken place, though he reproved the deed vigorously, yet because what is done cannot be undone, and by means of the cajoleries of violante his wife, and the interposition of another cardinal, whom the abate, guido's brother, served, the poor old fellow was constrained to drink the cup of his bitterness. and he came, as it were by force, after many months to the stipulations of the dowry agreement. he quickly began to feel the effects of franceschini's trick, since guido had scarcely a single soldo of his own to pay the first expenses of that marriage agreement. hence, to supply these, he was obliged, against the wish of pietro, to free from entail five of the bonds, or more, by the authority of the auditor of the most illustrious governor, and to sell them for meeting these expenses. hence one may see clearly that the primary object of franceschini in this proceeding was to trick pietro, and violante his wife, and their poor child, to enrich himself with the property of others. he can no longer deny the fraudulent pretence of vaunted riches of the franceschini in the note written in his own hand and given to the comparini. and indeed the anonymous writer confesses it openly. for, in order to free abate paolo from complicity in that trick, the latter pretended that he took guido his brother to task roundly for the alteration of the said note. the said comparini very quickly found this out. for as soon as they had gone to arezzo they learned that the property of the franceschini family was very slight. and such were the miseries and abuses that the comparini had to suffer in victuals and in harsh treatment that they were obliged to return to rome after a few months; for they were locked out of the home and had to go to the tavern to lodge; and these abuses were for the purpose of shortening their lives, either by their sufferings, or the fury caused thereby. and this fact is very evidently proved by the rent-rolls taken from the public records of the city of arezzo. from these it is shown that the said guido did not possess a single dollar's worth of the settled property mentioned in the said note. it is also untrue that he and his family enjoyed the highest rank of nobility in the city, because, from other extracts drawn from the public records of the city, it is evident that his family is of only secondary rank. the abovesaid crafty and fraudulent methods of dealing, which came to light long before the murder had followed, and which became known in this court and in arezzo, can well show that greed was the origin of this premeditated slaughter (which was put in execution in such a horrible manner, as is notorious) and not the pretended ground of injured honour. for, according to common opinion, abate paolo, no less than guido his brother, had worked the tricks exposed as above. and by men they were suspected of subterfuge and craft, so that this made them more sensible of injury than anything else. hence they could no longer boast the grandeur of their nobility and the affluence of their riches, which they had spread abroad on the lips of the crowd. and every one avoided having anything to do with them, as persons of bad faith and as usurping a glory to which they had no real right. the greediness of this self-interest became greatly inflamed; so that in these franceschini brethren one may see the common axiom verified: "craft is deluded by craft." that is to say, violante was urged on by remorse of conscience and by the abuses and injuries received in their house, and was constrained by her confessor at the time of the jubilee to reveal to pietro, her husband, that the said francesca pompilia was not their daughter, but was of a false birth. and this seems very probable in view of the age of , which violante had reached, when she pretended to be pregnant with her; because in the fourteen years, during which she had lived in lawful matrimony with pietro, she had never had children. also, by witnesses then living, she could afford conclusive proof of the pretence of the birth. and when notice of that had been given to abate paolo, that he might come to some compromise over the annulling of the dowry contract for the entire patrimonial property, he spurned the kind offers made to him through the meditation of friendly persons and refused every means of peace. then a warning (as to the falsity of the said birth and the illegality of the dowry contract) was served on him by pietro before monsignor tomati. and conclusive proof of the birth was given by six witnesses, who were examined before the judge with questions offered in behalf of the said franceschini. yet the same judge saw best to forward the case during the mere immediate possession, by continuing to the said francesca pompilia the quasi-possession of her parenthood. nevertheless, an appeal was taken from his sentence, and it was committed to the sacred rota, before monsignor molines, where it still hangs undecided as to the principal point of the pretended parentage and the nullity of the dowry contract. for righteous judgment in such a tribunal the judge doubtless awaited for conclusive proofs of the said pretence of birth. the nullity of the dowry contract would none the less be decided, because it had made declaration that the said francesca pompilia was their daughter. and with this falsehood the advantage which the franceschini had obtained for their own selfish gain by such tricks would cease. all this is proved by the reflection that the trick of franceschini was made public, not merely in rome, but in arezzo, and that he also was deluded by a similar artifice because of the proofs already made, while judgment was pending, that the said francesca pompilia was not the real and legitimate daughter of the said comparini. on the ground of these far-fetched suspicions guido made pretence of a reason for maltreating her with insults and blows, and more than once he provided himself with a sword and fire-arms to take her life. he did this to take vengeance upon her for his own trick, by which he had been deluded. therefore it was quite right for the poor wife, who was of the tender age of sixteen years and a stranger in the place, to avoid the rage of her husband at different times by fleeing for protection to monsignor the bishop, and to the governor, or commissioner of the city, that they might put some check upon the cruelties she was suffering. and although these persons by their interest in the matter succeeded for the time in putting a stop to the threats, yet the poor intimidated wife always passed her days shut in a room. and her fear was greatly increased because she saw that the said guido had made a mixture of poison, with which he threatened he would take her life without the uproar attendant on the use of arms; and thus he would be the surer of his crime going unpunished. now if, even at a time when no shadow of suspicion of dishonour had fallen, the husband was contriving the death of his wife, the anonymous writer might well abstain from soiling his pages for the purpose of proving that the slaughter of those murdered had had its origin in the impulse to repair offended honour. for his pages would have had much better foundation if he had consulted the truth, namely that these crimes had arisen from deluded self-interest. the poor wife in her agitation over these difficulties that we have told, had nothing else to do but think of finding refuge from the death she feared. and when her mind was somewhat sharpened by its vexations, she intrusted herself to the canon conti, who is closely related to the franceschini, and declared to him her miseries, her perils, and her just fears (although they were not unknown to him), in order that he might try to give her consolation by placing her life in safety. he was touched with living compassion and was moved to free her therefrom by pity for the grievous state in which she was. and he well knew that there was no other escape than flight from the home of her husband, according to the saying of the poet [virg. a. iii. ]: "alas, flee the cruel earth, flee the greedy shore." but not being able to give her aid in this affair, he suggested to her that for putting the matter into execution, there was no better person to the purpose than canon giuseppe caponsacchi, his friend and intimate, whose spirit had stood every test. and when conti had spoken of it to him, although caponsacchi saw difficulty in aiding the desire of the young woman, because he did not wish to incur the anger of the franceschini, yet at last the impulse of charity and pity prevailed upon him to free this innocent woman from death. and when his readiness for the attempt was reported to her by conti, she did not fail to inflame him with more messages and letters, even containing alluring endearments, for the effecting of her escape. yet she also kept during all this time her constant desire of not violating her marriage-vow, since in some of these letters she praises the canon for his chastity, and in others reproves him for having sent her some rather improper octaves. she also warned him against degenerating from the good behaviour, on which she had congratulated herself and had planned with him the flight. while her husband and the whole household were asleep, both of them, with the assistance of the canon conti, set out upon a headlong journey by post, without losing a moment's time, except for changing horses; and they arrived by night at castelnuovo. and although the host had prepared a bed for rest, nevertheless they did not avail themselves of it. for caponsacchi was always solicitously watching to see that the driver prepared other horses, to continue the journey to its end. nor did the host of that tavern, when cross-examined in the prosecution for flight, ever dream of bearing witness that the wife and caponsacchi had slept together in the bed that was prepared, even though franceschini, to his own dishonour, had published the contrary, that he might, by the pretence of injured honour, throw a false light upon the true grounds of the murders committed by him. in the meantime her husband arrived. when his wife saw him, did she, timid as she was, shrink back? did she acknowledge herself guilty of any sin, or of any wrong done to him in guarding her purity and modesty? no! but all on fire, though she was at the tender age of sixteen years, as i have already said, the constancy of her own honour rebuked him for the tricks and abuses which he had employed, and for the threats and blows he had very often given her, and for the poisonous drugs he had prepared to take her life. and [she declared] that she had been obliged to do as she had done, to find an escape by flight from graver peril, and to return to the parental love of the comparini, who had raised her as their daughter; and that she had always been careful to keep her wifely honour intact. the same rebuke was made by caponsacchi, who during the flight had religiously observed the limits of due modesty. what did franceschini answer? what did he try to do, although he was armed with a sword against his defenceless wife and against caponsacchi, who had with him only a little dagger? nothing, indeed! according to what the witnesses who were present deposed; because he stood convicted by the just remonstrances of his wife. but what did he do? he gave up all vengeance, which by right of natural law, or much more by civil law, he might have taken for that; and, as the anonymous writer goes on to boast in justifying him for this execrable crime, he implored the arm of the law and had his wife and caponsacchi arrested by the authorities of the place. and at his own instance they were conducted as prisoners to the prisons of the most illustrious governor of rome, before whom guido charged them with flight. then, not content with this, he brought forward that other charge of supposed adultery committed with the said caponsacchi. he also outdid himself greatly by making noisy petition to the supreme pontiff for their punishment, and the latter sent back his entreaties to monsignor the governor. he was brazen enough to demand, with a new complaint, that his wife should be declared an adulteress and that to him, according to law, should pass all the gain of the dowry. this in substance clearly proves that he did not insist on vengeance for the reparation of his honour, which he himself had passed by, but he did all this for the sole object of gain, that is to win the dowry. what efforts, what exclamations, what diligence did franceschini and abate paolo, his brother, not use to have the wife declared an adulteress and to gain the desired lucre? monsignor the most illustrious governor knows it, who endured with all forbearance their passionate pressure upon him. signor venturini, judge in the case, knows it. and all the other judges and notaries of the court, who were nauseated by their importunity, know this very well. then since judgment could not in any event fall according to the designs of the franceschini, as there was no proof in the trial of any offence, either in the wife or in the said caponsacchi, the most religious judges, who in prudence were judging rigorously (for the purpose of giving some satisfaction to the franceschini brothers in their strong insistence, rather than because of the obligations of justice), banished the said caponsacchi to civita vecchia for three years. caponsacchi straightway obeyed this sentence, and has never left the place assigned him. the case was left undecided as regards the wife, who was placed in the nunnery of the scalette as a prison. then when there was some question as to her pregnancy, with equal prudence, she was removed from the nunnery by the order of the most illustrious governor; for it was not decorous that she should give birth to a child there. and with the consent of the said abate paolo she was placed in the home of the said comparini under security of scudi to keep it as a secure prison. on this point the anonymous writer disputes too bitterly what was written learnedly by the fisc, and claims that the consent of the said abate paolo had not been given. but the great and incorruptible integrity of the fisc is known to every one; because of which he would be unwilling to give his word in writing for what was not evident on the surest proof. yet the fact of abate paolo's consent is plainly proved, since he in person so agreed with monsignor the most illustrious governor and with signor venturini, the judge, jointly. and he exacted from pietro comparini the obligation to supply her with food without any hope of recompense. and this was so carried out, although the quality of the comparini did not deserve so indecent a rebuke on account of having been too indulgent with them. with like bitterness it is denied that the said abate paolo had power of attorney from guido, his brother, enough to give such consent; because, in making such a provision, monsignor the governor had no need of the consent of the parties. and, even if he had wished to show abate paolo such courtesy and urbanity, the author should not reply thereto with such incivility, in criticising the judge for having done wrong because of the lack of that power of attorney. for by such procedure [abate paolo] proves that he wished to trick also monsignor the governor into consenting to a thing beyond his power. and he rests convicted of this, because the said abate paolo was the manipulator of all they did, nor was a straw moved without his assistance. and he was well provided with abundant power of attorney by his brother, wherefrom he had the fullest authority to do as if he were the very person of his brother, with a proviso of after confirmation, the efficacy of which every one knows. and this is confessed even by the anonymous author, since he asserts that guido at his departure left the entire conduct of his case to the abate, his brother. but one may well see with what object he denies the said consent, that is, in order that he may more bitterly make pretence of the complicity of the comparini in the pretended dishonesty of francesca, who had been guarded by them as a daughter. this would seem very improbable if he should once admit the consent of the abate. no less rancorous is the assertion made by the anonymous writer that lamparelli laid out the money to provide pompilia with food while she was in safekeeping. nor was lamparelli reimbursed by the deposit in the office, which had come from the money found on her and on caponsacchi, when they were arrested at castelnuovo, which was supposed to have been stolen from the husband. but the scudi, which the wife confessed to have taken away from him, were fully restored to the said abate paolo, as is proved by his receipt, made during the trial. the rest of the money was conclusively proved to belong to caponsacchi. and as soon as abate paolo received the money, for which he continually clamoured, he left rome to take part in the planning of that notorious murder, which followed a little while later. but there had previously been given notice, at the instance of francesca pompilia before monsignor the vice-governor, of a suit for divorce and for the recovery of the dowry, which had been spent. this was very bitter to the franceschini, because in that lawsuit conclusive proof would be made of their subterfuges, their cruelties, their threats of poisonous drugs that had been prepared; of which the canon conti, who was the mediator in that flight, had not been ignorant. and it is public talk and report throughout arezzo that he died about a month ago under similar suspicious circumstances. hereby ceased all hope, which the franceschini had had from the beginning, of gaining the entire property of the comparini. and from this, every sane mind may see and know what is the true root of such rash and pitiable murders; whether it is injured honour, or scandalous and detestable greed and cupidity. from this arose the hatred in the lawsuits brought and still undecided, which drew even greater dishonour upon the said franceschini, and when decided would be for their ruin. in vain therefore this anonymous writer and his other defenders wear themselves out in exaggerating the plea of injured honour. for then that which had no true existence would have been taken from guido by his wife. this was fully proved in the arguments made for the fisc, in answering those letters, from which guido drew his strongest proof. on the contrary, franceschini has by his own deed renounced all right to repair his honour, since he did not avenge it at the time of overtaking her in the said inn of castelnuovo. nor does his excuse really help him--that he was unarmed, because he had with him indeed a sword, and possibly other concealed arms. for it is not probable that he would have been willing to go on following his wife accompanied by caponsacchi, without being provided with arms. and this all the more because the fugitives also were unarmed and were provided merely with a little dagger. but guido preferred to choose the judicial road and had them arrested by the police, and he demanded that the charge against them be pushed through to their punishment, even imploring the rescript of the supreme pontiff. he also laid his entreaties again before the judges in the case (this very well discloses his purpose, which was the unconquerable motive of all his acts) and made special insistence before them for the payment of the price of the honour, which he pretended had been taken from him. and would he not even have had his wife declared an adulteress for the sake of gaining the dowry? if then he has, as one may say, demanded the price of his honour in the courts, how can he be permitted to commit such awful murders for honour's sake? for whenever a husband is permitted by reason of natural law, or even by the civil law, to kill his wife for honour's sake, this power and faculty ceases whenever the husband has renounced it by imploring, as above, the arm of the law. and these complaints that he made, and his recourse to the pope, show the price he put upon his honour. and with these judicial proceedings he lost, without doubt, his right of private vengeance for his injured honour, which he might have carried out. and by this one tacit renunciation, this right is extinct. [citation.] for the writer cannot claim that the judicial action brought by franceschini would not effect the renunciation of private vengeance for his honour, but that he could still employ the one or the other, and avail himself of whichever might seem better to him. for this is contrary to the text [citation] which is stated as follows by the celebrated canonist, giovanni andrea: "a choice cannot gain both alternatives in seeking confirmation therefrom; even if the one is claimed to include that by which the man can attain the end of his intention. therefore a man must choose one, and when it is chosen he cannot turn to the other." and still clearer are the following words of the same authority: "the right to return to a second alternative shall not at all be allowed, when one seems to have renounced to choose the first and to profess that his rights cannot arise therefrom." but although this exception from every miscarried law might be judged permissible, every foundation of it would be destroyed by the utter lack of proof of an offence received in his honour; for there was no proof of it in the prosecution for flight. the anonymous writer strives to deduce that from the pretended love-letters written to caponsacchi, which were denied by francesca and were not proved to be her handwriting, either by her own acknowledgment or by her signature. one cannot claim that she was convicted of it, nor that any legitimate proof of it resulted, as all judicial practice shows. and even if without reason we were obliged to acknowledge that they were written by her, would it not be too bitter and too unreasonable an inference that from them arose the husband's motive for killing her because she had written them? no one of sound mind will be persuaded to pity the husband who has gone on to kill his wife for the sole reason that she had written love-letters. for conjugal honour is offended neither by note, nor by pen, but only by acts of impure dishonour; and of this, in our case, every shadow of proof is lacking. this is all the more true because the mere suspicion of dishonour ceases with a thought of the true motive, for which the letters were written; namely, by pretended demonstration of affection to allure this caponsacchi to rescue her from imminent peril of death. nor from this could she find any other escape than by flight; for she was always terrorised by the anger and hatred conceived by her husband for feigned reasons. and therefore, as the love-letters arose from that occasion they ought to be referred to it, and not to a dishonourable wish to smirch her conjugal faith to her husband. to the same cause, likewise, should certain conversations be referred, which she had had from the window with the said caponsacchi in order to arrange the manner of saving her life, and not to give offence, nor to hazard her own modesty, nor the honour of her husband. even the most chaste of women have used like artifices. we find in the sacred scriptures that judith entrapped holofernes in the same way, for the purpose of winning the liberty of her native land. and so it may be no less permissible for this poor woman, who was solely intent upon the security of her life, to allure caponsacchi by amatory letters to be a safe companion for her in her flight, and this without any stigma of immodesty. much less can an offence of his honour be inferred from the flight; because, as i noted above, this flight resulted from the cause declared. and one may see clearly that it was not for doing any injury to her husband. for the fugitives did not turn aside into unknown places, but they journeyed precipitately along the consular road by post, without spending the night anywhere. and their journey was toward rome, where the poor wife hoped that the comparini, who had raised her as their daughter, would continue toward her those acts of love with which they had brought her up, even till the said marriage was contracted with franceschini. and all that is being reported that a driver testifies he had seen them kissing along the road has no legal foundation. for it rests merely on the word of a single witness of the lowest class, and he swears to matters that are quite improbable, because he had to drive the carriage with such rapidity as that with which the fugitives were following their journey. hence it was almost impossible for him to look backward, or to see what they were doing inside of that covered carriage. and this is all the more so because his deposition is vague, nor does it specify whether the kisses were given at night or by day. but his deposition is rendered much more doubtful and improbable because, in such a swift journey as the carriage was making, it might chance during the jolting of it that the accident of their faces meeting casually would arise, and to him this might seem the act of kissing. this happens very commonly, even when one is making no such journey, according to the quality of the road and the rough ways which one finds. this makes his testimony insufficient and doubtful enough or, even further, it is audacious and incredible. then as to the other point which the anonymous writer asserts too bitterly, namely, that when they arrived at castelnuovo the innkeeper was ordered to make up only one bed for the repose of the fugitives, and that they slept together. the host however did not have the hardihood to swear, in his cross-examination, that they had slept together in it. this circumstance is excluded by the deposition of the wife as well as by that of caponsacchi. because their affidavits constantly affirm that neither of them went to bed for rest, but that merely the wife, who was worn out by the discomfort and suffering of so precipitate a journey, rested for a few hours seated in a chair; and that the bed was left arranged as the host had adjusted it; and it would have been found mussed, if they had slept in it. it is also proved that when franceschini arrived at the said place he found caponsacchi urging that the horses be harnessed for continuing the journey, and no proof is given to the contrary. nor can one justly pity franceschini for his injured honour, which had been kept intact by the fugitives. likewise the title, to which the same writer appeals--that the decree of condemnation for caponsacchi's banishment had been inflicted because of criminal knowledge, to the injury of guido's honour--has no real foundation; because this title was corrected as untrue, and not in accord with the proofs. of this fact we may have as legitimate witnesses the very governor himself, and all the judges and notaries of the tribunal who have any part in the criminal court. and if one will only give it due thought, the title of that case was placed there, just as a wine bush hangs outside the door of an inn, which very well shows that they sell wine there, but does not prove whether what they sell is good, and saleable, and agreeable. oh! by no means. for one may find the wine there to be sharp, and muddy, and of other inferior qualities. if therefore we read the documents and the proofs registered during the prosecution, by which the crime is proved, and not by the erroneous title, which cannot offer a shadow of proof for the pretended criminal commerce, there is even less suspicion of immodesty. and one can well understand that all proof was lacking during the prosecution from the mildness of the penalty inflicted, which does not at all correspond with the gravity of the crime charged. one can also see the impropriety of condemning caponsacchi as an adulterer while the cause against the wife was still pending; because she could not be condemned while undefended. but to remove every suspicion of this pretended adultery, i beg any dispassionate reader to reflect that the adultery could not have been committed in arezzo, because to the guardianship of her husband was added that of the brothers, of their common mother, of the servant, of the relatives, and of the neighbours; yea, the voluntary imprisonment of the unfortunate child, who was always shut in a small room to guard her honour. much less could adultery have been committed during the journey, as has been proved to be utterly unlikely, improbable, unproved, and far from the truth. nor could it have been committed at rome; for it is well known that pompilia was taken from castelnuovo to prison, and from there was removed to the nunnery of the scalette, and then because of her pregnancy was consigned to the said comparini, under the form of keeping their house as a prison with security of scudi. caponsacchi also was staying then at his place of banishment in civita vecchia. in this fact all suspicion ceases, since the consent of abate franceschini, who is so zealous for his brother's honour, as well as his own, concurred therein. nor can one restrain himself without strong exertion when he hears such exaggeration from the anonymous writer as that caponsacchi left his prison to go in banishment to civita vecchia at a time when the wife was staying in the house of the said couple, as a prison, and that he lodged in their house. but he cannot speak a more barefaced lie than that, because caponsacchi has never been their guest, and as soon as he left the prison he went to the place of his exile; and he has faithfully observed his banishment without ever returning to rome. nor did the wife leave the nunnery before it was proved to monsignor the governor that caponsacchi was staying in civita vecchia, as was established by the authentic testimony of the chancellor of that district. the said writer, however, gives me even more room to blame his excessive boldness in stigmatising the honour of franceschini as sullied by his wife, by saying that as soon as guido had ascended the stairs in company with his fellows, armed to commit this execrable murder, he looked about upon those walls, which were all full of his insults, as if the said silent stones had known how to make contrivances of foolish thoughts to foment his inhumanity for so horrible a murder. because for this he can give no other proof than that he was writing fancifully without any foundation. for guido was indeed willingly dishonoured; because to his other dishonours he added these disgraces also, even by his own wrongdoing. for it is made very clear above that the cause for which he committed the crime was not to repair his honour, which had been injured by his wife. but it was his unmasked tricks, the hoped-for lucre, which had vanished, and the lawsuits still pending. and why can he not bring some other no less convincing proof, if honour urged franceschini thereto? and was not that honour sufficiently avenged by the death of his wife? why imbrue himself straightway with the blood of violante and pietro, who were not accomplices in the pretended dishonour? and why should he lay such plots through many days to procure the death of that kindly benefactor, because the latter had been moved by pity and had ministered to their aid in the said lawsuits? upon that one there has never fallen a suspicion prejudicial to guido's honour. for while the wife was in arezzo he was staying at rome. and when she was first married she was not fully thirteen years old, and after her flight, when she had returned to rome, we know that she continued under guard in prison, or in the nunnery, and then in the home of her parents, and at this time she was very near her confinement. hence one can conclude truly that the motive of this murder was other than that of honour, and that it was his greed, as was said, and the lawsuits, as franceschini himself confesses in his cross-examination. nor ought the declaration made by the said wife in the face of death be despised, since in the presence of many priests and persons who are quite trustworthy, even while she was constantly suffering from such severe wounds, she maintained and professed with greatest frankness that she had always lived chaste and faithful to her husband. and with a heart in fullest resignation to the divine mercy, she prayed pardon for every mistake she had committed to the disgrace of her husband. nor in such a matter is it to be presumed that the one dying lies, at the risk of the eternal safety of her soul. a person should also reflect that in this deed there occurs a special favour from the hand of the very omnipotent, who caused the wife to survive for a few days, in order that she might make clear her own innocence and throw light upon the murderers; for without this the crimes would have gone unpunished. for during the same crime franceschini had repeatedly commanded his companions to see if she were quite dead. and when they had taken her by the tresses and had lifted her from the ground where she lay, they believed she was dead; because the poor wife, by natural instinct, knew how to feign it by her relaxation, as the delinquents confessed. and this mark of divine favour all the more verifies the declaration of the wife, which has been proved by the confession of those guilty of the crime. i have left it for the last to discuss and refute what the said writer pretends concerning abate paolo. but if he had to speak the truth, he might reasonably affirm that the abate had been the whole foundation of this scandal. for he had urged guido on to the murders, and he had woven the whole plot, inasmuch as it was he who, from the beginning, wished to attain, by dint of industry and trickiness, the marriage of the said francesca pompilia. it was he who had sustained the suits, both civil and criminal, and he who, under the name of a grandee, and by boasting of their word of honour, had tried to extort a judgment by means of fine insinuations, by subterfuge, and by trickery; which was not right. it was he, who was very sensible of having been proved to be the man of guile, who had been deluded by his own trick. therefore this writer had good reason to say that the faces of others served the abate as mirrors by which to read his own evil courses, and not the lost honour of his brother. i forbear to respond to what the anonymous writer has tried to have believed to the praise of abate paolo franceschini, to excite greatly our pity; since the intention of the author of the present response is no other than to make clear the falsity of the suppositions against the honour of the poor wife and against the comparini, and to serve the cause of justice. and he leaves the judgment of it to those who have full knowledge of it. from the same consideration i pass over responding to many another impropriety, which has been advanced uselessly and without any point by the said writer. and i close my response with the example of samson, alleged by him. when he saw himself exposed to the public scoffs of the people, he gave a shove to the pillars of the palace, causing it to fall that he might die with the rest under its ruins, and might cease to be longer the scorn of that people. so lest the said franceschini may be ridiculed for his tricks, it is fitting that he and his companions pay the penalty merited by their crime. for these are pernicious to the state and to that peace and security which litigants in the courts of rome ought to enjoy, if we would maintain what the vigilance of the supreme pontiff alexander vii., and his successors, has provided. for they have published a constitution as to that, and with it banns, successively promulgated. the sacred order of such laws should be observed all the more willingly, inasmuch as guido had chosen the judicial way to vengeance, and the appeals made to the supreme pontiff, who is most eager to do what is just, were sent back to his judges. nor could guido grieve for this without some pretended injury, as is evident; hence the anonymous writer wished to ascribe it to the aggravation by which the anger of franceschini had been exasperated. this clearly shows with what intent he had broken into such detestable excesses. [file-title of pamphlet .] _by the most illustrious and most reverend lord governor of the city in criminal cases_: _roman murder-case._ _for count guido franceschini and his associates, prisoners, against the fisc._ _reply as to law, by the honourable advocate of the poor._ _at rome, in the type of the reverend apostolic chamber, ._ romana homicidiorum [pamphlet .] most illustrious and most reverend lord: i omit further discussion with my lord advocate of the fisc about the communication of his allegations, because the time is brief, and i have professed great reverence for him since my youth. let me also pass over the claim that when one is arguing about death inflicted by a husband upon his wife, not in the act of taking her in adultery, but after an interval, mere suspicion, however strong, is not sufficient to redeem him from the ordinary penalty of the cornelian law, but that the clearest proof of the adultery is required, as is claimed by our opponents. yet we have proved the contrary in our former argument, § _quamquam ad hoc_. and dondeus, sanfelicius, and muta, who were not cited there, hold that it is quite enough if the couple be found alone in some retreat; and no. says especially if the wife be beautiful. [citation.] see the word of ovid: "great is the strife of modesty with beauty, and man keeps eagerly craving it." [_heroides_, paris to helen.] so in the present case, according to the same author: "by this young and passionate man is she supposed to have been returned still a virgin?" [_heroides_, , .] at present, we are dealing with a case not merely of clearest proof, but also of notorious fact; because we have a decree of this very tribunal by which such adultery was declared. although the words of this decree have been given in the present information, § _absque eo quod_, yet i wish to repeat them here, because they are so clear: "giuseppe maria caponsacchi, of arezzo, for complicity in the flight of francesca comparini, and for criminal knowledge of the same, is banished for three years to civita vecchia." but i cannot pass over what is still claimed--that this decree was revoked--because, as i have said in my information, the truth is quite the contrary; for we have only the fact that in the mandate for imprisoning the sinning canon the repetition of the whole decree, as given above, was omitted, and it was said: "for the cause, concerning which in the suit." these words are so far from showing a revocation that they rather offer confirmation of the said decree, as we have affirmed in our information, § _nec verum est_. the same should be said of the like words furnished by the notary in the bond which francesca pompilia executed to keep the home of her father as a prison. this was when she was brought there from the nunnery, where she had been staying securely, on the grounds of her supposed infirmity, but i may say more truly that it was because of her pregnancy, which she wished to hide by some evil deed. [our claim is all the more true] because this pretended revocation of the decree could not be made when the other side had not been heard, as i have said in my information, § _eoque magis_. likewise i cannot pass over what is said as to the canon having been condemned only to the penalty of banishment because of defect of proof of adultery. for if such proof had not existed, how could my lords judges express in the decree that they condemned him for criminal knowledge of the same francesca pompilia? it is the truth that the judges held that the said adultery was most conclusively proved, and that the said canon was convicted of the same, since in the prosecution nothing is wanting but the taking of them in the foul act; and this is not necessary to prove adultery. [citations.] the penalty to which the said canon was condemned did not indeed correspond with the said crime. as to this many replies may be made, but, because this has no connection with count guido let it also pass by. for however that may be, who can deny that count guido, on reading the said decree, which needed no comment, ought justly to be angered for the conjugal faith violated toward himself? and who can deny that he ought to be somewhat excused, if afterwards he took vengeance for such a violation? [citations.] and this is true, although he took such vengeance after an interval, as was plainly demonstrated in my said past information, § _nec verum est_. for there are few authorities who hold the contrary, and therefore it would be almost heretical to doubt the truth of such an opinion. [citation.] especially since this has been accepted in almost all the tribunals in the world, particularly in that of the sacred council, which establishes the precedent for all the other tribunals of the city and of the entire ecclesiastical state. hence concioli affirms that it is almost like sacrilege to depart from this opinion. [citation.] and is it not a fine pretence to wish to exclude the plainest proofs of adultery by the word of the very wife convicted of it, and then retained in the nunnery by reason of it, as my honourable lord procurator general of the fisc has ingenuously acknowledged? for a person is not obliged to disclose his own baseness in the face of death, as we have proved in the said present information, § _et quatenus_, and the § following. and since she had lived badly, not to say in utter baseness, to the injury of the honour and reputation of her husband, we inflict no injury on her by wishing to presume that even in death she did not come to her right mind, according to the saying: "he who lives badly dies badly." and no one, even in death, is presumed to be a saint john the baptist, as in my information, § _nec valet dici_. as therefore it remains firmly established that count guido had just cause for killing, or causing to be killed, francesca pompilia, his wife, the same must be said as to the murder of pietro and violante, the father-in-law and mother-in-law. for in the prosecution of the said francesca pompilia for flight from her husband, proof also came to light that they had conspired in that same crime, and consequently were among the causes of the injured honour and reputation of count guido. and this injury to his honour had also resulted from what they had pretended and had exposed before every one--that his wife was not their daughter, nor legitimately born, but was the daughter of a harlot. and afterward they had received her into their home when she had been declared an adulteress. for either she was their daughter, and they ought not to deny it in court, or else she was not their daughter, and they should not receive her into their home after she had been convicted of adultery. for in doing so they had, by that very act, declared that they had been and wished to be her panderers. [citations.] the confession of count guido cannot be divided from its qualification, that he had demanded the murders for honour's sake. but it ought to be accepted by the fisc along with the said qualification, as we have proved in our information, § _huiusmodi enim confessio_. the authorities alleged to the contrary by my lord advocate of the fisc hold good in a qualification, extraneous to the confession itself and which is not therefore proved otherwise, and when there is argument for some extraordinary penalty, and we have admitted this in our information, § _præsertim_. but just as the plea of injured honour relieves count guido from the ordinary penalty for murder, so should he be excused from certain other ordinary penalties, laid in the banns and apostolic constitutions against those bearing prohibited arms or committing other crimes. for i have said, and i repeat, that the just anger which excuses him from the one crime should also excuse him from the others, since this reason is everywhere and always in his favour, that he was not of sound mind, according to what was affirmed in our information from § _agnoscit fiscus_, down to § _quo vero ad litem_. and just as this cause is enough to gain for count guido a diminution of the penalty, so should it be considered to be sufficient likewise to gain that favour for his fellows, who as auxiliaries cannot be punished with a greater penalty than the principal himself, according to almost innumerable authorities, and they of great name, who were alleged in my past argument, § _quæ dicta sunt_, with the following, and in my present argument, § _verum et sociis_. to this, no response has been given by the other side. this is all the easier as regards blasio agostinelli, who has not at all confessed that he killed or wounded any one, but only that he was present, as we have formerly considered the matter in our information, § _quoad blasium_. and as to domenico and francesco, beside what has been deduced in favour of the others, they are foreigners, and are therefore not bound by the banns of the governor (for by these, men who live outside of the district are not bound) nor by the apostolic constitutions prohibiting the bearing of arms, as we have said in our past argument, § _quae eo facilius_. this is all the more so since domenico still asserts that he is a minor, and for this purpose he was so described in the prosecution (page ). and as regards francesco, beside the abovesaid description in the same prosecution (page ), we have the baptismal register, which conclusively proves his age. [citations.] for he was born the th day of february, , from which it is evident that at the time of the commission of the crime, which is to be had in regard for punishment [citations], he had not completed the twenty-fourth year of his age. and to one less than twenty-five years old the penalty should be diminished, etc. [citations.] and this indeed is of necessity, and not at the discretion of the judge, because such diminution of penalty arises by advantage of law that has been passed and from intrinsic reason, diminishing the penalty. [citations.] although there are not lacking some authorities who think the contrary, namely that it all depends upon the discretion of the judge, yet our opinion is the truer and the more generally accepted in criminal causes which are not very atrocious. [citations.] and when the crime is merely savage, or more savage, the judge is obliged by the very necessity of his duty to diminish the penalty, according to those authorities recently alleged. [citations.] this opinion also has a place in the crime of murder, notwithstanding the order of the text. [citations.] "if any one should make you a defendant under the cornelian law, it is suitable that your innocence shall defend and purge itself by your minority." for the order of this text should be interpreted thus, namely, that a delinquent who is a minor is not to be excused entirely, but is only to be punished more mildly, according to the old authorities who are cited with abundant hand by farinacci. [citations.] this is especially so when, as in the present case, the delinquent minor does not sin alone, but in company with others; for then he is presumed to be seduced by them, and therefore the ordinary penalty comes to be diminished the more readily for him. [citations.] we do not know whither the fisc pretends to turn for the destruction of these foundations in law, because my honourable lords, the counsellors of the fisc, have claimed nothing as to this matter, either in their past argument or the present one. for when they claim to escape our exception by the florentine statute [citation], that a minor of sixteen years is punished criminally, other responses are at hand: first, that the provision of this statute does not extend to crimes committed outside of the territory of the said state, but that the place of the crime and its statutes should be attended. then these indeed cease, as they do in the present case, because the banns of the governor have no place when there is argument for the punishment of a foreigner. this fact arises from defect of power in the prince or official establishing them, according to what was alleged in the past argument, § _quae eo facilius_, and the one following. for then the criminal should be punished according to common law. [citations.] the second response is that the statute says nothing else than that a minor of sixteen years cannot be punished with the ordinary penalty of the crime. consequently it ought to hold good in our case, since we are indeed arguing about a minor exceeding sixteen years, but of one less than twenty-five years old. such a rule should be drawn from common law, in view of which the said statute in such a case receives a passive interpretation. [citations.] caballus testifies that he saw it so practised in diminishing the penalty to one less than twenty-five years, that is to one who was eighteen years old. [citations.] finally the third response, and the one that lays the axe to the root of the tree, is that the accused is not of the city of florence, nor of its territory, but of the territory of arezzo. but the city of arezzo and its dependencies are not bound by the statutes of florence; first because they are not called subjects, but vassals, of the said city of florence; and, second, because the city of arezzo has its own statutes. [citations.] for reference is had to the ruling state, when other subject states have not their own statutes; but it is otherwise, if they have them. [citations.] and so they are contrary, or incompatible. [citations.] soccinius [citation] bears witness of what manner these statutes of arezzo are, as compared with those of the city of florence, etc., and this is plain from the rubric, etc., where it is commanded that those under twenty-five years cannot be rendered liable, without certain ceremonies, as paolo di castro counsels. [citation.] for from this statute it is sufficiently evident that in the said city and its environs a less age is the rule according to common law. so far as the fisc may have foundations, which in our feeble judgment we have been unable to guess, i pray that these be kindly communicated to me, lest the poor accused minor may remain undefended. finally, as regards count guido, i pray that notice be taken of the unfortunate condition of himself and of his noble family. for all of his family and connection have had enough to lament even to the last breath of their lives, when they look upon the ignominy brought upon them by this woman and her parents. and because of this, there has been doubt up to the very present moment whether one nearly related would go mad. and the excellent piety of our most clement prince and most illustrious lord has declared this, to whom the accused himself with his whole heart commends himself in the arguments made in his defence, not to speak of what they may learn about it from the anonymous author [pamphlet ]. [citation.] desiderio spreti, _advocate of the poor_. letter written by the honourable signor giacinto arcangeli, procurator of the poor, to monsignore francesco cencini, in florence, in which he tells him that the sentence of death had been executed in rome against the guilty on february , --that is, that franceschini had been beheaded, and the other four hanged. [letter i.] to the illustrious signor, my most worshipful signor and patron: too late have arrived those proofs, which were sent to me by your honour, on behalf of signor guido franceschini of blessed memory. for when the congregation of monsignor the governor had determined, in spite of the reasons given in his favour, that signor guido was guilty under the death penalty, i obtained, with much trouble to myself, some delay for proving his clergyship alleged by me. to this end a messenger was dispatched to arezzo. but since the sanctity of our lord [the pope] did not deem it wise to postpone the execution of the sentence already decreed, he has seen best by special writ to make denial of any clerical privilege, which might have been claimed [in guido's favour], and also as regards the minority of francesco di pasquini, one of the accomplices. hence sentence against all five has been executed to-day, with distinction only in the manner of their death, as guido's life was ended by decapitation. this consolation survives for his relatives and friends, that he has been pitied by all men of honour and by all good men. confessing my own shortcomings, i cannot deny feeling infinite regret, as i attribute the whole outcome to my inability in offering the valid grounds. may god reward his house and all his friends with abundant blessedness for this tragic accident. desiring your further commands, i reaffirm myself, as ever, your excellency's most obedient servant, giacinto arcangeli. rome, _february , _. to the illustrious signor, my most worshipful signor and patron, signor advocate francesco cencini, florence. letters written by signor gaspero del torto and signor carlo antonio ugolinucci to the aforesaid monsignore francesco cencini. [letter ii.] the proofs you send did not arrive in time, because to-day finally, after so many disputes, the execution of poor signor guido has taken place, he having been beheaded, while the four cut-throats have been hanged. the case was decided tuesday, but because it was a churchman who had sinned, and because it was claimed that the death-sentence was not in keeping therewith, a messenger was dispatched to arezzo later on to get proofs of it. but the pope yesterday set his hand thereto, and has decided the case, so that to-day it has so followed completely. now that the will of god has been fulfilled that he should suffer such a punishment, it has at least been brought about, in view of the arguments made in his defence, that he died the death of a gallant man. for aside from the fact that he has died with exemplary courage, he has also been pitied by all gallant men, and his house has lost nothing in the matter of reputation. all rome was there, as you may well believe. and [the mistake] cannot be made good with such speed as this may be written, because there have not been lacking admonitions of greatest consequence, since the ambassador of the emperor spoke of that point on tuesday, as he himself told me day before yesterday; and than the matter was settled precipitately. i have finished the argument before the congregation of the council, and at any time that monsignor secretary wishes to take it, i think we shall be ready. i pray you favour me with those copies of the proof as soon as possible. and if canon philippo does not give us the opportunity, he should be good enough to acknowledge it to me that i may think of other measures, wishing once for all to get out of this imbroglio if it shall be possible. and finally, i remain with all reverence, my most illustrious and most excellent signor, your humble and obedient servant, gaspero del torto. rome, _february , _. to the most illustrious and most excellent signor, my dear signor, signor francesco cencini, florence. [letter iii.] my most illustrious and excellent signor, my most worshipful patron: tuesday this most unfortunate case was brought up and the congregation of the governor decided--delay and according to instructions. the instructions were that they would await the proofs of the well-known clericate. at this favourable decision the defence took heart and guido's good friends began to breathe again. then last evening at eight o'clock monsignor signed of his own accord the warrant, in denial of the clergyship which might be alleged and of the minority of one of the accomplices. no sooner had he signed the warrant than the news of it sped throughout the city, and with it the assurance of the sentence, which has been executed to-day since dinner against the five; that is, the loss of his head in the case of signor guido, and the gallows for the other four accomplices. i will not tell your excellency my own grief, because you yourself will be able to be a true witness of it. these proofs would have been of the greatest relevancy, but not in this case, because monsignor wished it so. i enclose the fisc's argument, except a single response, which i will send to you as soon as i can lay hands on it, that your excellency may have the entire case. now that signor advocate del corto has abandoned his own interests i may serve your excellency in the matrimonial case and in the other of gomez. therefore i set myself to all that in order that i may serve your excellency, praying evermore your continual commands, that i may ever be your excellency's obedient servant, carlo antonio ugolinucci. rome, _february , _. [file-title of pamphlet .] _by the most illustrious and most reverend lord governor in criminal cases, or by the most excellent lord venturini._ _roman lawsuit._ _for the heir-beneficiary of the former francesca pompilia, formerly wife of the former guido franceschini, against the fisc and associates in the lawsuit._ _memorial of fact by the honourable procurator of the poor._ _at rome, in the type of the reverend apostolic chamber_, . romana [pamphlet .] most illustrious and most reverend lord: in the contention most sharply and most learnedly carried on between the defenders of the poor and the fisc in the case of the murders committed by persons led by count guido franceschini against the person of francesca pompilia his wife, and pietro and violante comparini, i refuse to descend into the arena, lest i may seem to fail in the office which i discharge in common with the said defenders. my silent pity has delayed and let time slip by; because i believed it would be to the prejudice of guido and his fellows imprisoned for that offence (in whose excuse the plea of injured honour is especially strong) if i should wish to push the defence (which was committed to me long ago) of the shame and honour of the same francesca pompilia; for her tender mind has been stained by no infamy arising from impure lust, and against her the suspicious husband could have made no objection, unless wife-murder had followed, as if from this he wished to prove the adultery merely because he could then kill his wife, and he killed her that she might be believed to be an adulteress. but now since the case has been most sadly terminated as regards all of those imprisoned (for thus these things terminated which should not have been begun) i begin anew the dispute over that most unfortunate question, and assert most safely (both for the reasons fully given in my argument for exclusion of the asserted rape, which is reassumed gratuitously, and for those more fully gathered by his honour, my lord advocate of the fisc, in his very learned allegations distributed in both presentations of the case), first that the memory of the aforesaid francesca pompilia should be utterly absolved from the crime of adultery, which was unjustly and all too bitterly charged upon her by her husband, and second that declaration should be made by a definitive sentence that she has never violated her marriage vow. and this is in spite of the fact that such insistence may seem incongruous. for although all crimes cease with the death of the criminal [citations], nevertheless when a crime is atrocious, and of such a nature that it involves in itself a brand of infamy, its memory ever endures. and therefore it is worth while for the principal to vindicate the fame of the authoress from the asserted crime of adultery, etc. pellegrini speaks as follows: "the thirteenth case is when the heirs of one dead, for the purpose of purging him from the infamy which works against him publicly on account of crime, wish that [the court] take knowledge of the crime itself, for the purpose of establishing his innocence, for this is conceded by law." and bossius asserts: "note that even if death does utterly remove any further penalty, yet the heirs of one who is dead may make a stand for his fame and honour, in order that a declaration may be made about that crime." and caballus: "for although with the death of the delinquent, a crime may be said to be extinct so far as his own person is concerned, yet the heirs of the accused, in their own interest and to wipe out the infamy of the one who is dead, may petition that the court go on to give an opinion, and that it be declared that the dead one had not committed crime." and he affirms the same under the following number. and indeed this is not without manifest reason. for just as the fisc may go further in the investigation of a crime that had been perpetrated during the lifetime of the one now dead, even for the purpose of damning his memory [citations], likewise it cannot be denied by the principal himself, as the beneficiary heir and successor of the same pompilia and pietro comparini, that inasmuch as her innocence is evident he may insist upon carrying away a sentence of absolution; for in other cases any one at all may have a chance to defend one who is dead. [citations.] and to delay such a judgment it is not right that the flight again be alleged, which the said pompilia made in the company of canon caponsacchi, with whom she was arrested at the inn of castelnuovo. for to remove that charge it is quite enough for one to allege the judgment of this most illustrious congregation, given under the date of february , last past, against guido franceschini, because of which he was publicly put to death on the twenty-second day following, notwithstanding the fact that, to avoid the penalty of wife-murder, he insisted solely upon the asserted adultery, which he claimed had resulted from the aforesaid flight from home. all suspicion whatsoever of her dishonesty ceases because of the defences then made and because, in the very prosecution, there was apparent a very just reason, on account of which the wretched wife attempted to flee thus from the home of her husband. nor was it for the purpose of satisfying lust with the asserted lover, but that she might go back to her own hearth, and there, with her parents, might live a safe and honest life. this cause is very plainly proved by the notorious quarrels which arose on account of the poverty of the domestic establishment immediately after her arrival at the city of arezzo along with pietro and violante comparini in execution of the agreement included in the marriage-contract. and on account of this poverty the comparini were obliged, after a few months, to go back to the city, with no small bitterness on account of the deception which they had detected. this is evident from the letters of abate paolo franceschini, which presuppose these complaints that resulted from the said deception, and especially from the letter written march , : "i write again to you that i do not wish to imitate him in his manner of writing, not being of his mind to sow broadcast in my letters such words as would well merit response by deeds, and not by words. and these are so offensive that i have kept them for his reproof and mortification." and further on: "so that if you give trouble, which i will never believe, you yourself will not be exempt therefrom." it is also evident from the letters given in my past information, and especially in § _videns igitur_, with the one following. and although this does not show the nature of the altercation, yet, since abate paolo has not shown the letters written to himself, the presumption presses upon him very strongly that the complaints were just and that the cause of their quarrels and altercations was well founded. [citations.] it is also true that a very bitter lawsuit was brought by pietro comparini for the nullification of the dowry contract and for the proof of the pretence of birth, which had been made by violante, the mother, both to deceive her husband and to bar his creditors, who were pressing him hard at the time. and since the dowry included all the property and the entire patrimony of comparini, which was of no small value when we consider the rank of the persons concerned, controversy had indeed been raised for a considerable amount by the father-in-law. and this, as experience teaches from time to time, is accustomed to bring forth implacable hatred and deadly enmity. [citations.] it produced indeed such an effect for this unfortunate wife, so that the love of her husband, which had long been disturbed by the preceding altercations, was finally quite extinct. and this was so to such an extent that she often found herself exposed to deadly peril because of the severity of her husband, who at times pursued her with abuse, and again even with a pistol. and it cannot be questioned that such perils are quite suited to strike fear even into any hardy man. [citations.] hence it can be much more affirmed of francesca pompilia, a girl of tender age, who was destitute of all aid, and away from her own home and her parents. [citations.] and mogolon [citation] declares that the mere sight of arms, even if the one who has them does not use them nor unsheath them, is just cause for fear; and in § , _no._ , he considers the absence of relatives as a ground for fear. and d. rainaldi [citation] says that it is enough if one sees signs or acts of manifest desire, or such as are preparatory. therefore, since so many very relevant circumstances concur, on account of which pompilia was moved to desert her husband's bed by flight, all suspicion whatsoever of dishonesty and of violated conjugal faith is utterly removed. for whenever we have two causes, one of which is lawful and permissible, while the other is iniquitous and abominable, the former is to be fully received, and thereby the charge of crime is quite excluded. [citations.] [and this is true] in spite of the fact that this lawful cause may seem to be excluded [first] by the letter written by francesca pompilia to abate paolo. for in the letter, after she had thanked abate paolo because he had joined her in marriage with his brother, pretence is made that her parents gave her the depraved counsel to destroy the entire home and to go back to the city with her lover; [it also makes pretence] that since their departure she was enjoying a quiet and tranquil life. [second] from the company of the canon giuseppe caponsacchi, with whom she had fled; because of which he was banished to civita vecchia for three years. for however it may be with the asserted letter, whether it is substantiated or not, and whether or not the qualification should be considered probable, which is added in her sworn testimony by the same pompilia, namely that her husband had marked the characters and she had blackened them with ink by tracing them with a pen, because she herself did not know how to write; yet it is certain that if the letter be read attentively it will be absolutely impossible to assert that she had written it with a calm mind. for who can be found so unmindful of filial love and duty toward parents as to persuade himself that this tender girl could have laid upon her parents such detestable crimes? because at the time she was not more than fourteen years old, according to the certificate of baptism given in the summary of the fisc, in the second setting forth of the cause, no. . and she was away from her own home and still grieving for the very recent departure of her parents, and was badly treated in the home of her husband, as is clearly shown by the continual complaints and recourse made not merely to the most reverend bishop, but also to the lord-commissioner of the city. nor is it probable that she would have informed her brother-in-law, who was so very unsympathetic toward her, of these matters unless, as she has frankly confessed in her sworn examination, she was compelled thereto by her husband. nor without very evident peril of death could she show any reluctance to him because of his excessive severity, which she had very often felt before. and as this improbability is well suited to strike horror into those who read it, so likewise it very well shows that the letter was not written voluntarily, but under compulsion. [citations.] caballus asserts that what no sane mind would approve is inadmissible. [citation.] and indeed such excessive cunning in extorting the said letter from the wife plainly proves guido's craft, and the fact that the letter was obtained by false pretence, in order that he might quiet the mind of the same abate, his brother. for the latter had been harassed by continual complaints on account of ill treatment of the wife, and had not ceased to criticise guido daily for them. [citation.] as to her association with canon caponsacchi, this likewise does not seem enough to establish the blot of dishonour. for the most wretched wife was utterly destitute of all earthly aid and had vainly entreated the authority of the most reverend bishop, and of the lord-comissioner, to free her from deadly peril; and on account of her age and sex it was not suitable that she should flee alone or in the company of some low-born serving-woman, for in that way she would carelessly expose herself to graver peril, as might have happened to her if she had been overtaken while alone on the journey. for then it could be said of her: "she fell upon scylla while trying to avoid charybdis." therefore we should not be surprised if she took the aforesaid canon as a companion. for he had been proposed to her by both canon conti and gregorio guillichini, who were related to pompilia's husband. and it is utterly incredible that they would have consented to such a flight if they had not known it was quite necessary to evade the peril of death, which they very well knew was threatening the luckless wife, and if they had not had strong faith in the honesty and integrity of her companion. therefore, as such a necessity was pressing so hard upon her, her prudent choice of the lesser evil eliminates any shadow whatsoever of her pretended dishonesty. [citations.] [this is especially true when we] consider the manner in which the flight was executed, by taking the most direct road to the city with the utmost possible speed. and it very well shows that the sole motive was to save her life, and not to debase herself by licentious delights. for if this latter had indeed been the principal cause, she would not have gone to rome by the shortest road, where she might immediately be taken by her brother-in-law and her parents, but would have gone to some more distant regions, or else she would not have gone with such swiftness, but would have delayed out of the public highway, and in a place where her husband could not find her, and where she could fulfil to satiety her lust. this utter improbability therefore very well shows the truth of the cause for flight adduced by the wife in her sworn testimony--namely that she had gone swiftly to the city in order that she might there place her life and honour in safety in the home of her parents. for just as the strongest sentence of blame may arise from mere probability, so likewise no less presumption of innocence should arise from this improbability. [citations.] and this is strongly urged by the frank protestation made in the very act of arrest at the inn of castelnuovo to the husband himself by the canon, who rebuked him concerning this flight: "i am a gallant man, and what i have done, i have done to free your wife from the peril of death." so testifies jacopo, son of the former simon, a witness for the fisc, in the prosecution for flight (page ). and an example was offered by me in my allegation as regards that flight, namely that of scipio africanus. for when the beautiful young wife of aleucius, the chief of the celtiberi, had been captured by scipio's soldiers, he said in restoring her to her husband: "your wife has been with me as she would be with her own parents. her virtue has been preserved for you so that she can be given back to you again, a gift unviolated and worthy of me and you." titus livius bears witness to this in his _histories_, book , and page in my volume. and although it may be very difficult for a beautiful woman to preserve the decorum of her honour while journeying in the company of a young lover, yet it is not utterly impossible, as the examples seem to show, which were related in my allegation, § _quidqud dicat_. and to these i add that of penelope, of whom ovid sings in book of his elegies [_amores_, iii., , ]: "although she lacked a guard, penelope continued chaste among so many suitors." and this is especially true since neither the journey nor the company of the canon were voluntary, but were merely for the purpose of avoiding the peril of death. and since such necessity was present, the presumption drawn from ovid's _ars amandi_ is rendered still further inapplicable, namely that "from a passionate young man, can she be believed to have returned a virgin?" [_heroides_, , .] nor do the letters which were found in the closet of the inn at castelnuovo seem to stand in the way and hinder the sentence petitioned, and impose a blot of infamy upon francesca pompilia. it is claimed that these were written by her to the canon on account of the very devoted love with which she was pursuing him. but the exceptions and responses made in the past informations hold good. the first is that they were not acknowledged by her, nor was the identity of the handwriting proved; and some uncertainty is still present, since it is not evident to whom they were directed; nor would it be improbable that they might have been framed by the husband. for he was present at the capture and search, and hoped, indeed, that therefrom might result more readily the fixing of the crime of adultery. and he insisted very strongly upon this, in order that he might gain the desired dowry and lucre. this mere possibility to the contrary is enough to avoid the proof, which it is claimed may be drawn from them. [citations.] the second response is that, even though such exceptions as the above might not hold good, yet no proof of violated conjugal faith and of dishonour can be drawn from these letters. for even though proof of adultery may result from love-letters, it is utterly excluded in our case when we see that they were directed to a licit end, namely toward soliciting the canon that he might afford her aid in her flight and that she might avoid deadly peril. for then, just as the end is permissible, so should the means also be considered lawful and permissible, even though suspicion is not lacking; for these should be considered, not in themselves, but on account of their end. [citations.] but indeed, unless from the love-letters themselves there result an implicit confession of fornication, proof of adultery cannot be drawn from them. [citations.] it should be specially noted that she had very strong confidence in her own continence and in the integrity of the canon. and she trusted him much, and hoped that he would conduct himself modestly during the journey, since it is evident from these same letters that she had found fault with him for his freedom once: "and i marvel, that you who have been so chaste, have composed and copied matters that are so dishonourable." and further on: "but i would not have you do in any case as you have done in these books. the first of them is honourable, but the other octaves are quite the contrary. i cannot believe that you, who have been of such honour, have become so bold." for such sincere objurgation and the very tenor of the letters in which no dishonesty is read, clearly show and declare the spirit of pompilia, who wrote them. for just as words are to be understood according to the thought of the one proffering them, so likewise should letters be interpreted according to the intention of the one writing them. [citations.] since therefore the honour and modesty of pompilia is vindicated from the flight and the letters, of still lighter weight are the other proofs of pretended dishonour. these are deduced from the approach of the canon to her home for the purpose of speaking to her; from the insidious manner in which the flight was prepared and put into execution, by means of an opiate administered to her husband and the servants; from their mutual kisses on the journey; and from their sleeping together at the inn of castelnuovo. for beside the general response that no conclusive proof is offered for all these, such as would be necessary to establish pompilia as guilty of adultery, there is a separate response for each of them. the entry and egress at night time into the home of francesca rests merely upon the deposition of a single witness, maria margherita contenti, who is under two very relevant exceptions: namely those of singleness and of harlotry. her word therefore can impose no blot of infamy. [citations.] and since such approach would tend toward the single end of arranging for the flight and rescue of the unfortunate wife from the very imminent peril of death, it should not be presumed to be for an evil end. for when an express cause is plainly present, to which a matter may be referred, and this cause is entirely lawful, the matter should not be attributed to a cause that is illicit and criminal. [citation.] the insidious manner, also, whereby francesca pompilia put into execution the flight, by preparing an opiate for her husband and all the household (aside from the fact that it is not proved), would afford proof of sagacity rather than of dishonour, even if it were proved. for the wife would have been very foolish if she had attempted flight without such a precaution. under the same lack of proof labours the asserted mutual kissing during the journey; for that proof is entirely too slight, which is pretended to result from the deposition of a single witness of the lowest class. especially since his word is shown to be too much prejudiced; for he swears that, while he was driving the carriage swiftly at night time, he saw francesca pompilia and the canon kissing each other. nor does he give any reason, as that the moon was shining, or that some artificial light was present to dispel the darkness. inasmuch as such a detail is necessary in a witness who is testifying about a deed at night time, its omission takes away all confidence in him. [citations.] for there is to be added another very strong improbability, namely that, while he was driving the carriage with such velocity that it seemed to fly rather than to run, he could see their mutual kissing by looking backward. still more is this improbability increased by the very word of this same witness, since he swears that he had driven pompilia without knowing that it was she, until afterward returning to arezzo, he had met guido franceschini, her husband, following her. because if he had seen her kiss, he would have recognised her straightway, since he had often seen her before and she was well known to him. and therefore it should be absolutely declared that, either influenced by the tedium of his secret prison, he had been compelled to swear so, or, as is more probable, since on account of the very great speed of the carriage the bumping together of those seated therein might chance, he had believed that this chance jostling of their heads and faces was for the base purpose of kissing. hence the proof arising from his deposition was justly held in contempt in the prosecution for flight. and it would have been considered if it had had any probability. finally the proof of dishonour drawn from the asserted sleeping together in the same tavern at castelnuovo is far weaker, since it was constantly denied by both pompilia and caponsacchi in their testimony. and only a single witness, the house-man of the same tavern, swears to it; and this also not from certain knowledge, but presumptively, because they had asked him for a room with a single bed. canon caponsacchi frankly confesses why he had ordered that only a single bed should be prepared--namely that francesca pompilia, who was worn out because of ill-health and the discomfort of their precipitate journey, might rest a little, while he himself kept guard. such an act should not be assigned to an illicit cause, as cravetta [citation] advises in such circumstances. and in no. , he says that interpretation should always incline to the humaner side, even when the rigorous side may seem the more likely. and the same author continues thus in _nos._ _and_ . for it would not suffice as a full proof of adultery that any one be found alone and naked with her alone and naked, and that a young man be found unclothed and with shoes off in a closed chamber with a woman. much less can such proof arise from a very brief delay in the same chamber for the purpose of keeping watch. very slightly does it stand in the way that francesca pompilia, in her cross-examination, concealed this delay by asserting that she had arrived at the tavern at dawn. for she was very well aware of the credulousness of her husband, and possibly asserted this to avert further suspicion of violated honour, which certainly might have arisen if she had confessed that she had spent a longer time in the tavern. as even if she had not denied such a stay, the confession under circumstances that still argue for the preservation of her modesty would not have been to her prejudice, so likewise the lie can do no injury. [citations.] but all suspicion of pretended dishonour is quite eliminated by the assertion of the most unfortunate woman, which was made in the very face of death, after many severe wounds had been inflicted upon her by her husband. [for she declared that] she had never sinned against her marriage vow, as is very evident from the numerous depositions of religious men, who ministered to her in death. they assert that they heard her continually praying that she might be given no forgiveness by the divine clemency for such a sin. this assertion made in the very face of death, deserves all faith, since no one placed in that condition is presumed to be so unmindful of eternal safety as to be willing to lie. [citations.] finally, no foundation for accusing the memory of francesca pompilia of dishonesty can be established upon the asserted decree of this most illustrious congregation, by whom canon caponsacchi was condemned to three years' banishment in civita vecchia, with a statement made of his running away and criminal knowledge of francesca pompilia. for, as the fisc himself admits, there was demanded by me, though not _in extenso_, the modification of that title by the honourable judges, with the approval of his excellency the governor. and therefore, in the order for imprisonment, these words were suppressed and others were put in their place: _pro causa de qua in actis_. all further difficulty is removed from the mere consideration that such a decree had been issued, while no defences had been made for francesca pompilia, and while she was still utterly without a hearing. for she had not the slightest knowledge of it, since she had not been notified. but in the decree for the assignment of the home as a prison, only a cause relative to the trial was expressed. hence it could not injure her, since it was issued against a third party while she herself had not been cited. [citations.] and in the circumstances that a sentence given against an adulterer can do no injury to the adulteress when she has not been cited is the text. [citations.] "if he is condemned, the wife is not condemned thereby, but shall carry on her own case." [citation.] this is especially true since we are not now contending to free the husband from wife-murder, and to infer a just cause apart from belief in the dishonour of the wife resulting from the said decree, and which would excuse him from the penalty of the cornelian law. in this case, the changing of the said decree might possibly serve for an escape. but we are contending about the damning of the memory of a woman now dead, and about rescuing her and her family from infamy. and in the latter case just as such a harsh decree could not injure her during her lifetime, so likewise it cannot do her injury after her death. antonio lamparelli, _procurator of charity_. [in old writing.] and according to the letter of carolo antonio ugolinucci, may , , i understand that the criminal court after two votes, decided on absolution. instrument of final judgment [pamphlet .] given for the restoration of the good name and reputation of francesca pompilia, now dead; formerly the wife of guido franceschini of arezzo, now dead; for acquittal in favour of domenico tighetti, as an heir beneficiary of the same francesca pompilia, from all disquietude, all molestations, vexations, and perturbations, brought or threatened to be brought by the venerable monastery of saint mary magdalene of the convertites in the corso; together with the citations lawfully executed in observation of the four terms to instruct themselves as to the appeal and its legal prosecution, in order that the same sentence might pass on, as it has passed on, to judgment, because no appeal has been interposed. in the name of god, amen. september , , under the sixth declaration in the eighth year of the pontificate of the most sacred father in christ, etc., innocent xii., pope by divine providence. this is a copy, or transcript, of the citations made by my own act, and written below, and of the sentence rendered respectively of the following tenor, namely: the most reverend and most illustrious governor in criminal matters: let the undernamed principals on the other side be cited, etc., to appear in the criminal court to-morrow, which will be the nineteenth day of the current month, at the accustomed hour of convening court, lest it seem good that each and all the terms be repeated as ill founded, and that they therefore are to be held and observed as null and void in their force for any powers whatsoever, and lest the one so insisting be freed from censures, so far as, etc., it be concluded, or seem best to be concluded in the case, and that the final sentence be heard in due form according to the aforesaid insistence by domenico tighetti, heir-beneficiary of the former francesca pompilia, the wife of the former guido franceschini, as principal, or, etc. notary for the poor. the most illustrious francesco de gambi, procurator general of the fisc, and of the reverend apostolic chamber. the honourable giovanni maria serbucci, procurator and manager of the lawsuit brought by the former guido franceschini. the honourable francesco paracciani, procurator of the venerable monastery santa maria magdalena of the convertites in the corso. against the procurator general of the fisc, etc. he says that no sentence can be given, unless in favour of the fisc, and so far as, etc., insists that he be granted delay for the purpose, and in the meantime they cannot go on to any expediting of the cause, except for reason given in full court, and by the vote of the lords thereof, and by testimony of the opposition in prison, and without citing all who have interest, etc., this th day of august, . francesco gambi, _procurator general of the fisc_. i have made the above citation against the fisc personally this day, and against the others by copy, which was sent to their homes, this august , . balatresius. aloysius pichius, _substitute for the fiscal general_. _august , ._ when he had made statement of fact, antonio lamparelli, procurator, presented his case and petitioned as above. thereupon the most illustrious and most excellent lord, marcus antonius venturinus, j.v.d., who holds the judicial bench, for the most illustrious and most reverend governor of our dear city in criminal cases, gave sentence, as in this schedule, which he has taken in his own hands, has seen, read, and subscribed, and given and consigned to me as a notary for publication of the following tenor, etc., in the presence of antonio bernardino piceno and antonio toparino of caprarola, witnesses, etc. in favour of domenico tighetti, in the name, etc., against the fisc and those consorting with him in the suit. in the name of christ, whom we have invoked, we who sit for this tribunal, and who have only god before our eyes, give this as our definitive sentence, which we offer in these writings by the advice of those skilled in law, in the cause or causes which have been tried before ourselves in the first place, or in the second, and which are now being considered, between domenico tighetti, as heir-beneficiary of the former francesca pompilia, wife of the former guido franceschini of arezzo, on the one part; and the fisc and giovanni maria serbucci as procurator and manager of the lawsuit of the former guido franceschini, and francesco paracciani, procurator of the monastery of santa maria magdalena of the convertites in the corso, for all their rights and parts in that interest, on the other part; concerning and upon the pretended adultery committed by the said former francesca pompilia with canon giuseppe maria caponsacchi, and as regards other matters in the conduct of the cause or causes of this kind, more fully deduced, etc. by authority of the decree for the remission of the case, which was made by the most illustrious and most reverend auditor s.s., by the acts of pascasius, concerning which in the conduct, etc., and for cause given in the court, and by vote of the same, we say, pronounce, declare, and finally adjudge from what has been newly deduced, that _proof is not established as regards the pretended adultery_, and therefore the memory of the same francesca pompilia should be and is _entirely_ restored to her pristine good name and reputation; and that the same domenico tighetti, in whose name the above was deduced, should be and is absolved and liberated from each and all disquietudes, molestations, vexations, and perturbations brought, or threatened to be brought, by occasion of these as on account of the statement of these we have restored, absolved, and freed him, as above. and for this restitution and absolution and freedom, we wish and command that it be held as law that the suit or suits, of whatever nature, which have been brought thereupon be abolished, as we abolish them. and we charge that perpetual silence be imposed upon the fisc and his consorts in the suit. and we have thus spoken, pronounced, declared, and finally given sentence, not only, etc. i, marcus antonius venturinus, who hold the judicial bench have so pronounced. given on this th day of august, in the presence of antonio bernardino piceno, and antonio toparino of caprarola, witnesses, etc. by the most illustrious governor of the city in criminal cases, or the most excellent lord venturini. let the undernamed be cited for learning the appeal, and its lawful prosecution for the first time, at the aforesaid instance of domenico tighetti, as principal heir-beneficiary of the aforesaid francesca pompilia, formerly wife of guido franceschini: charitas. the honourable giovanni maria serbucci, as procurator and manager of the legal proceedings of the said former guido franceschini, as principal on the other side. the honourable francesco paracciani, the procurator of the venerable monastery and convent of st. mary magdalene of the convertites in the corso for all, etc. i have made the said citation at his home, august , . molinellus. _september , ._ when we had made statement of fact, r. d. alexander cassar, substitute procurator of charity, appeared, petitioned, and was granted, as above. by the most illustrious governor of the city in criminal causes, or by the most excellent lord venturini. let those named below be cited for learning of the appeal and its legitimate prosecution this second time, at the aforesaid instance of domenico tighetti, heir-beneficiary of the former francesca pompilia, formerly wife of the former guido franceschini, principal, or, etc. charitas. d. giovanni maria serbucci, as procurator and manager of the lawsuit brought by the former guido franceschini, as the principal on the other side. d. francesco paracciani, procurator on the other side for the venerable monastery and convent of st. mary magdalene of the convertites in the corso, for all, etc. september , , i have made this. molinellus. by the most illustrious governor in criminal causes, or by the most excellent lord venturini. september . when he had made statement of fact, r. d. alexander cassar, substitute procurator of the poor, appeared, petitioned, and was granted, as above. let those named below, be cited for learning of the appeal and its lawful prosecution, this third time, at the aforesaid instance of domenico tighetti, heir-beneficiary of the former francesca pompilia, wife of the former guido franceschini, as principal, or, etc. charitas. d. giovanni maria serbucci, as procurator and manager of the lawsuit brought by the former guido franceschini, as principal on the other side. d. francesco paracciani, procurator of the other side for the venerable monastery and convent of santa maria magdalena of the convertites in the corso, for all, etc. i made this september , . molinellus. september , . when he had made statement of fact, r. d. alexander cassar, substitute procurator of the poor, appeared, petitioned, and was granted as above. by the governor in criminal causes, or the most excellent lord venturini. let those named below be cited for learning of the appeal and its lawful prosecution, this fourth time, and of the final presentation, and the decree, etc., at the aforesaid instance of domenico tighetti, heir-beneficiary of the former francesca pompilia, formerly wife of the former guido franceschini, as principal, or, etc. charitas. d. giovanni maria serbucci, as procurator and manager of the lawsuit brought by the former guido franceschini as principal on the other side. d. francesco paracciani, as procurator of the venerable monastery and convent of santa maria magdalena in the corso, for all, etc. i have done this, september , balatresius. _september , ._ when he had made statement of fact, r. d. alexander cassar, substitute procurator of the poor, appeared, petitioned, and was granted, as above. i, domenico barlocci, notary of the court of criminal causes of the most illustrious and most reverend governor of the city, as notary for the poor, have found this copy correct by collating it, although it was extracted from the original documents by one who is trustworthy in my eyes, etc. in pledge of the above, i have subscribed and have published it, as i am required to do. [the seal of the said notary.] the secondary source of the ring and the book a contemporary manuscript pamphlet "the following pages contain a ms. contemporaneous account of the execution of the principal actors in the tragedy which has been immortalised in the poem of the _ring and the book_. "i am enabled by the kindness of my friend, mr. browning, to give it a place in these miscellanies of the philobiblion society." john simeon. (i shall not attempt to say with what a feeling i correct proof-sheets received on the day subsequent to that which brought the intelligence of the death of this great-hearted and noble-minded man, characteristically good and gracious to the very last.) r. b., may , . the above words are the introduction by sir john simeon and the comment by the poet (philobiblion society miscellanies, xii. - ), on the reprint of the subsequent pamphlet in the original italian. it was found in london by one of browning's acquaintances, who, knowing the poet's interest in the subject, sent it to him. internal evidence indicates that it was probably written (but not published) some few years after the crime, and it is more popular in style than any part of _the book_. the writer during the first half of his pamphlet follows closely the affidavit of pompilia and the second anonymous pamphlet [no. ] of _the book_. he then adds much interesting information as to the murder and the pursuit, arrest, trial, and execution of the criminals. browning uses almost every scrap of additional information it affords. he accepts its fact with the same fidelity he shows in using _the book_, and uses it extensively and without discounting its value as compared with the official record. it is therefore treated as an essential portion of the present source-study. its new matter will be indicated by italics in the following translation. mrs. orr has published somewhat less than half of the pamphlet in her _handbook_ in translation, which has been reprinted in the camberwell browning, and in the _browning guide book_ by g. w. cook. the present version is made directly from the italian text of the philobiblion society reprint. the death of the wife-murderer guido franceschini, by beheading guido franceschini, a nobleman of arezzo, in tuscany, had stayed for some time here in rome in the service of a person of some eminence. he decided to take a wife with dowry enough to be of advantage to his own house. when he had revealed this desire to a certain hairdresser _near the piazza colonna_, she proposed to him the signora francesca pompilia, thirteen years of age, the daughter of a certain pietro comparini and violante peruzzi. for beside the promised dowry, she was heir to the reversionary interest in bonds and other properties worth about , scudi. when he had heard of this advantageous dowry, which seemed to him to be quite to his point, he lost no time in revealing it to his brother abate paolo, who had dwelt here in rome for many years in the service of a cardinal. he went along with guido to the mother of the young woman, as they flattered themselves that they would succeed better in this way than by demanding her of the father, who was somewhat hard to approach. when they had made it appear that their income was of considerable amount, they succeeded in their intent; although it was then found out that their entire capital did not amount to the total of their income as given in that note. it was easy for franceschini to win over this woman, as _she was driven by the ambition of establishing her daughter in the home of persons of good birth_. she gave her own consent, and so worked upon her husband as to induce him to sign the marriage bond. then when comparini had been informed by a person who knew the resources of franceschini, that they were quite different from what they had been represented to him, he changed his mind, nor did he wish under any consideration to carry out the marriage. _he gave as a pretext the very tender age of his daughter_, along with other reasons. the mother of francesca, however, not seeing any chance to give her daughter to franceschini, had her secretly _married during december_, , _in san lorenzo in lucina_. when this marriage reached the ears of comparini, he was much angered at violante. but she had such a gift of gab that comparini not only agreed to it, but beside the dowry of , scudi, _on which he had already paid scudi, he also made gift of his entire possessions to the couple_. after several days, franceschini decided to conduct his wife and her parents back to arezzo, _and this took place in the same december_. when they had arrived there, the parents of the wife could see that the state of their son-in-law was much worse than they had imagined it. therefore they were all the more embittered at the penuriousness they showed in the food, and many other matters. _one morning while they were at the table they heard their daughter_ [violante according to _the book_] _denied fire for warming her bed_, and saw the franceschini practise many other cruelties toward her. they were much troubled at it, and _all the more so when they saw a canon of the franceschini household, a brother of the husband, rush upon their daughter_ [violante according to _the book_]. _he struck francesca with a dagger in his hand, who had to make her escape by running into a room and shutting the door. then one evening her father went to visit a friend, and when he had come back home he found the door shut. therefore his daughter, who was still awake, was obliged to go downstairs to open it for him, but not without first having called her husband, who never even opened an eye. then when she had gone down to open the door and had gone outside a few steps to meet her father, all of a sudden she found herself shut outside the house along with her father. for that reason they were both of them obliged to sleep outside of the house that night, her father at the inn and the daughter at one of the neighbours._ therefore, more and more, as the days passed, the comparini decided to return to rome. but as they were without money they were obliged to beg it of franceschini, who _scarcely gave them the necessary expenses of the journey_. when the old comparini had departed, franceschini thought to hide what had happened. he constrained his wife to write to rome to the abate, his brother, to tell him that she cherished in her heart his memory. this letter was dictated by the husband himself. the ignorant girl did as guido wished, whose purpose was to have it believed that his parents-in-law were the fomentors of the dissension which prevailed between the couple and the relatives of franceschini. when the comparini had reached rome, ill-contented as they were with the house of their son-in-law, for whom they now saw they had sacrificed their daughter, they did not know how to hold their peace about that matter, of which they themselves had been the cause. all the more so when they were harassed for the remainder of the dowry, beside the fact that they saw the rest of their property in danger. while affairs were in this state a jubilee was announced; under these circumstances violante comparini revealed in confession that francesca pompilia, who was married to franceschini, was not their daughter, but that the birth had been pretended. she had in fact been born of a _poor widow, a foreigner_, and had then been adopted to bring it about that the reversionary interest would fall to their house, and hence to make good the many debts of her husband. _when the confessor heard this, he charged her to reveal all the affair to her husband himself. violante obeyed, and comparini was greatly surprised at it, and rebuked his wife sharply._ he then submitted the matter to judgment before monsignor tomati; the following was spoken in sentence: it should be maintained that francesca pompilia shall be and is in quasi-possession of her relationship as daughter. therefore appeal was taken by comparini to the tribunal of the sacred rota, but the suit still remains undecided. in the meantime the franceschini, seeing that they had been deluded by this circumstance, since they could not get possession of the residue of the dowry, redoubled their cruelties to the poor pompilia even to the point of threatening her with death. hence she was very often obliged to save herself by fleeing into some other house, or before the authorities, or even into the presence of the bishop, _whom she finally begged to save her by putting her in some monastery_. but this prelate thought it better to send her back to her husband's home, urging him not to mistreat her. when the unfortunate woman saw that the admonitions of this bishop had been useless, and that this way of softening the heart of her husband and his relatives had proved vain, and when they reproved her for sterility and for coquetry, and for other faults of their own imagining, she betook herself to an augustinian, romano, that he might write to his superiors or to her parents to find some provision for her. but although the father promised to do as she desired, his letters never reached their destination. the wretched woman was therefore desperate and determined to get to rome in some manner or other. she told the whole matter to canon conti, a relative of the franceschini, to whom she made a most pathetic picture of her situation. he was moved thereby, and answered that he would aid her, as he did, by offering to have her taken to rome by canon caponsacchi, his friend, since he himself ought not and could not do it. when the circumstances had been told to caponsacchi, he was opposed to it, for fear of incurring the anger of the franceschini; but when he had been urged both by conti and the woman, he consented thereto. and on the last monday of april the wife arose from bed as soon as day dawned, without her husband knowing about it. she took some things of her own, some jewels, and money, left the house, and at the gate of the city found caponsacchi, who was awaiting her with a carriage. they mounted together and set out on the road toward rome. when franceschini awoke and discovered the flight of his wife, as he already suspected that she had started for rome, he began to pursue her, and on the following tuesday [should be wednesday] overtook her at castelnuovo in the post-house, where she was in company with caponsacchi. the young woman was not at all terrified at the sight of her husband, but on the contrary she mustered her courage and reproved him for all the cruelties practised upon her, because of which she had been forced to this step. then franceschini was thunderstruck, and did not know how or what to respond. hence he thought it best to have recourse to the authorities. the fugitives were arrested by the governor of the place, and both of them were taken to rome and placed in the new prisons, and were charged with adultery because they had run away together. he tried to prove the charge by certain love-letters which had been found, and by the deposition of the driver. but as the adultery was not proved, the canon was condemned for three years to civita vecchia, and the wife was shut into the monastery of the scalette on the lungara. when the husband therefore saw that this had not helped him in gaining the dowry, he decided to go back to his own country, leaving the care of his case in the hands of his brother, the abate, who was in the service of a cardinal. but although the abate tried by many a turn to succeed in his intent before the tribunals, he could not achieve it. hence he also decided to leave rome. and he was spurred all the more by its becoming known that his sister pompilia was with child. for this reason, the governor of rome had constrained him to consent that she should keep her own home as a prison, under security of scudi to present herself at every demand of the tribunal. the abate indeed was unwilling to give his consent unless pietro comparini should first assume obligation, by an official document, to furnish her with food. _and then, when he had obtained the permission of his cardinal, he sold his furniture and books_, and when he had made them pay over the scudi which had been found upon pompilia at castelnuovo, he left rome. after that pompilia bore a son, _whom she named gaetano, after the saint to whom she made her vows_. franceschini, who was now overwhelmed with manifold troubles, and was urged on now by honour and again by self-interest to take vengeance, at last yielded to his base thoughts and planned to kill his sixteen-year-old wife and her parents. when four other criminals had been admitted to the scheme, he left arezzo, _and on christmas eve reached rome. he stopped at ponte milvio, where there was a villa of his brother. there he remained in hiding with his followers until a time opportune for the execution of his designs should come._ they spied out all the ways of the comparini family, and on january , _which was thursday_, at about seven o'clock in the evening, he approached the comparini home with his companions. he left on guard at the street door biagio agostinelli and domenico gambassini, and knocked at the door. when he had said that he brought a letter of canon caponsacchi from civita vecchia the door was opened to him. immediately this cut-throat franceschini, assisted by the other two criminals, leaped upon violante who had opened it and struck her dead to the ground. pompilia in this crisis extinguished the light, hoping thus to escape the assassins, _and ran to the neighbouring door of a locksmith crying out for help. but when she saw that franceschini was provided with a lantern she went to hide under the bed_; but she was dragged from there, and was barbarously slain _with wounds_ by the hand of her husband. not content with that, he dragged her to the feet of comparini, who was likewise wounded by one of the other assassins, _and was crying out_ "_confession_." _when the uproar of this horrible slaughter was heard abroad, people ran thither, but the criminals succeeded in escaping. but in their haste one of them left his cloak, and franceschini his cap, which betrayed him afterward._ the unfortunate francesca pompilia, under the burden of such wounds as those with which she had been cut to pieces, _implored the holy virgin for the favour of confession, and obtained her prayer_. hence she survived some little while, and _was able to tell about this horrible crime. she told that after the deed was done her husband had asked of one of the cut-throats who had done the murder with him, if she were indeed dead. when that one had assured him, he replied: "let us lose no time, but return to the vineyard."_ and so they made their escape. _in the meantime the police had been summoned, and came with a captain. a confessor was quickly called and also a surgeon who gave his attention to the luckless girl._ when the governor had been informed of the outcome, he _immediately despatched captain patrizi_ to arrest the criminals. _when the posse arrived at the vineyard, he found that these were no longer there, but that about an hour ago they had left in the direction of the highway. then patrizi followed without interrupting his journey, and when he had reached the inn he learned from the host that franceschini had demanded horses with threat of violence, but they had been denied him, because he lacked the necessary order._ hence he had travelled afoot with his companions toward baccano. _patrizi continued his march, and, after taking the necessary precautions_, arrived at the tavern of merluzza. there he found the assassins, who were straightway arrested. on them were found, still stained with blood, those daggers with which they had done the murders, and _upon franceschini were found scudi in money. this arrest indeed cost the life of patrizi, because having been overheated and wounded with a slight scratch he died in a few days._ _franceschini's dagger was of a genoese pattern, triangular, and with certain hooks made in such a way that in wounding they could not be drawn from the wound without such laceration as to render the wound incurable._ _when the criminals were known to be at ponte milvio, in that very inn they were heard on their preliminary examinations by notaries and judges sent there expressly, and satisfactory confession was had._ _when the capture of the delinquents was known in rome, a countless throng of people rushed thither to see them, while all the criminals were tied to their horses and conducted to rome. it is told that franceschini, while making the journey, asked one of the officers how in the world the crime had ever been discovered. and when he was answered that his wife, whom they had found still living, had revealed it, he was so astounded that he was, as it were, deprived of his senses. about five o'clock in the evening they reached the prisons. a certain francesco pasquini, of the town of castello, and alessandro baldeschi of the same town, both of them years old, along with guido franceschini had been the slayers of the comparini. and gambassini and agostinelli were those who had stood guard at the street door._ _in the meantime there were exposed in san lorenzo, in lucina the bodies of the assassinated comparini, who were so disfigured, and especially the wife of franceschini, by wounds in the face that they were no longer recognisable._ the unfortunate francesca, when she had taken sacrament and had pardoned her murderers, and had made her own will, died, not yet having completed her seventeenth year. this was on the th, which was the day of the epiphany. she was able to justify herself against all the calumnies inflicted by her husband. _the surprise of the people at seeing the said bodies was great, because of the atrocity of the deed, which truly made them shudder_, seeing that two old septuagenarians and a young girl of years had so wretchedly perished. as the trial of the criminals advanced, there were many arguments made on the matter, laying stress on all the more aggravating circumstances which accompanied this horrible massacre. others also were made in the defence with much erudition, especially by the advocate of the poor, who was a certain monsignor spreti. he succeeded in delaying the sentence, because baldeschi made denial, even though "the cord" was administered to him twice, under which he swooned. finally he confessed, and the others did likewise. _they also revealed that they had planned to kill franceschini himself, and to rob him of his money, because he had not kept his word to pay them as soon as they left rome._ on february was seen _in the piazza del popolo a great platform with mannaia, and two great gallows, which had been built for the execution of the criminals. many stands were constructed for the accommodation of those curious to see such a terrible execution, and so great was the concourse of people that some windows brought as much as six dollars each. at the eighth hour [ a.m.] franceschini and his companions were informed of their death and were placed in the consorteria. there they were assisted by abate panciatichi and cardinal acciajoli, nor did they delay in preparing themselves to die well. at the th hour [ p.m.] the company of death and of pity arrived at the prisons. the condemned were made to go downstairs, and were placed upon separate carts to be drawn to the place of execution._ _the first to mount the cart was agostinelli, the second gambassini, the third pasquini, the fourth baldeschi, and the fifth franceschini, who showed more intrepidity and composure than the others, to the wonder of all._ _they left the prison and followed the pilgrims street, the street_ _of the governor, of pasquini, piazza navona, the pantheon, piazza colonna, and the corso._ _the first who was executed was agostinelli, the second gambassini, the third pasquini, the fourth baldeschi, and the last franceschini. when the last-named had mounted the platform, he asked pardon for his sins, and begged them to pray for his soul, adding that they should say a pater, an ave, and salve regina for him. when he had made the confessor announce that he was reconciled, he adjusted his neck upon mannaia and, with the name of jesus on his lips, he was beheaded. the head was then shown to the people by the executioner._ _franceschini was low of stature, thin and pallid, with prominent nose, black hair and a heavy beard, and was_ fifty years of age. _he wore the same garb as when he committed the crime--that is a coat of brown cloth, black shirt, a vest of goatshair, a white hat and cotton cap; clothed presumably as he had been when he had set out from arezzo._ the execution took place during the _pontificate of innocent xii._, in . trial and death of franceschini and his companions for the murder of comparini, his wife, and daughter which happened during the time of innocent xii. editorial note the following additional account of the franceschini murder case was discovered a few years ago in the royal casanatense library, rome (misc. ms. ), in a volume entitled _varii successi curiosi e degni di esser considerate_, containing thirteen pamphlets by various authors, most of them concerning famous criminal trials, from rome of the seventeenth century. the volume is in a hand of the early eighteenth century, and contains an endorsement to the effect that a copy was made from it in . the franceschini murder is the subject of the tenth narrative of the volume. internal evidences indicate that it was written somewhat later than the secondary source pamphlet, by one who has considerable knowledge of the crime and whose attitude of mind shows him to have been a priest. it presents a better story and a fuller account of the motives of the actors, especially those of abate paolo and violante, together with a number of additional matters of fact not contained in _the book_. it never fell in browning's way, and hence has no immediate source-relation to the poem, but it does prove in some cases the accuracy of browning's conjectures of unknown facts when definite data failed him. the pamphlet was printed in translation by w. hall griffin in the _monthly review_, november . the present version has been made by the editor from a transcript of the original italian executed by a friend in rome.--c.w.h. trial and death of franceschini and his companions for the murder of comparini, his wife, and daughter which happened during the time of innocent xii. the abate franceschini, born in arezzo, tuscany, of a family which was noble, but poor of estate, having the cleverness to advance his own fortunes, proceeded to the city of rome, and was admitted by cardinal lauria into his household as secretary of the embassy. his inherent mental aptness won for him the favour of the cardinal, who was held in great esteem in the sacred college by reason of his learning, and who stood so high that he might well have aspired to the papal chair. in this lucky juncture, abate paolo, wishing to take advantage of his good fortune, thought to provide a wife for his brother guido and to recoup his family fortunes by a rich dowry. guido had served cardinal nerli in the same capacity, as secretary of the embassy; but either because he had not the good luck or the ability of his brother he left that service. although paolo knew that the idle state of his brother would be hurtful to his claims of dowry, he did not cease aspiring to a very advantageous one, flattering himself that his own distinction might make up for the shortcomings of his brother. now guido had reached full maturity, was of weak temperament, ordinary in appearance, of a disposition more gloomy than pleasant, and, moreover, was of scant means. hence, unless abate paolo should use his own influence, he could have little expectation for guido. after having attempted several alliances of high rank, paolo fixed his thought on francesca pompilia, the daughter of pietro and violante comparini. as she was their only child, and as her parents were too far advanced in years to have other offspring, she would fall heir to a reversionary interest of , scudi; and he hoped that he could easily make the match, as the comparini were rather inferior to him in birth. a certain hairdresser frequented the home of the comparini with the familiarity admitted by those women who desire to make themselves appear more beautiful to their husbands' eyes than they are and which some husbands tolerate who rely too much upon the fidelity of their wives. paolo considered this woman to be the best means for aiding his designs for the marriage of guido, and the latter often went to her shop with the purpose of winning her confidence by odd jobs. when he had often turned the talk to the subject of taking a wife, she told him one day he might readily apply for the daughter of the comparini, for she had a suitable dowry, besides being heiress to a reversionary interest, and was of a small family connection, which were his very requirements. when through her efforts he had succeeded in achieving the marriage, it was understood he should reward her with scudi. the hairdresser lost no time in broaching the matter to violante, who, anxious for the advancement of her daughter and for the establishment of her own interests, agreed to speak of it to her husband, and, if the matter were as stated, to persuade him to effect it. violante spoke to her husband about it and he did not reject the proposal, provided that the vaunted riches of the franceschini were verified, but he said this would have to be given in a written statement attested by well-known and reliable persons. when the hairdresser had carried back this word to the franceschini, they sent a statement of their real estate in arezzo, with an income amounting to scudi, attested by persons well known to the comparini, and who confirmed it to them orally. abate paolo, fearing lest this fortune might escape him, gave them no time to change their minds, and in order to make the matter surer he desired to secure it by the hand of cardinal lauria, his patron, by whom he had the marriage agreement drawn up; for his eminence was pleased to show kindness to the advantage of a man whom he regarded with some favour. meanwhile comparini had become better informed of the rank and property of the franceschini and found them far different from the preceding account, both in rank and in property. therefore he had a warm dispute with his wife, who persisted in the marriage, and declared that he had been advised by persons envious of the good fortune of one or the other house, and who wished to hinder it, and that she was not shaken in her original desire; for she was very sure, from other truthful witnesses, that the franceschini were of the first rank of nobility of arezzo, and not of the second, as those had said, and that the property given in the list had been untampered with. but the more she warmed to the matter, the cooler became pietro; for being very diplomatic, if he could not gain, at least he wished not to lose by the marriage of his daughter. but what does not a man lose when he allows his wife to rule him? he loved her so tenderly that from the first day of their marriage he had constituted her the arbitress of his wishes. violante, nevertheless, fearing lest pietro, in a case of such importance, might be more influenced by reason than by flattery, could suffer no delay in making secure the reversionary interest which another house could claim if the comparini were without an heir; she therefore resolved to have the marriage performed without the knowledge of pietro. when she had secured the consent of the daughter, who was always obedient to her commands, and had made an appointment with guido, she conducted her, suitably clothed, one morning to san lorenzo, in lucina, and espoused the two. pietro felt the blow keenly, but being unable to find any remedy for it, he cloaked his anger with the show of being displeased at not having been present, and this displeasure would cease in him with the joy of the nuptial feast, which should be in their house. he assigned to his daughter as dowry twenty-six bonds, with future succession to the remainder. on the very same day, after talking of the advantages which would result to both houses from the union of their interests, they decided upon the removal of the comparini to arezzo, which followed in a few days, and with it the absolute administration of the property by guido. when they had reached arezzo the comparini were received by the mother and relatives of franceschini with all that show of love which is customary on such occasions. but very soon, from constant association, disturbances arose, and thence they passed to hostilities. the mother of guido, a proud, avaricious woman, who governed the household despotically, took to stinting it even in the necessary food. this moved the comparini to complaints, to which the franceschini first responded with insults and then with threats. this was a thing violante could not tolerate, for, being a woman, she had her own share of natural arrogance. so she began tormenting pietro, cursing the day when he had decided to move to arezzo, laying the blame on him for all that of which she had been the cause. and pietro, who was one of those men who let themselves be overcome by a couple of crocodile tears of their wives, instead of reproving her for the undertaking (although she had concluded the marriage against his wish and without his knowledge), entreated her affectionately to bear with patience the abuses, which would possibly cease when the franceschini saw them defended by their daughter. at that time [november , ] passed from this life to heaven cardinal lauria, a churchman of merit beyond all praise. then abate paolo was elected secretary in rome of the religious order of malta. at this the haughtiness of the franceschini increased so much that they considered it grand good fortune for the comparini to be considered their friends, not to say their relatives. violante being no longer able to live under the proud command of another woman, since she had been in the habit of domineering, as her husband had been subject to her wishes, so tormented him that she induced him to take up his residence in rome again. for this purpose the franceschini gave them a sum of money sufficient for the journey and for the most necessary furniture in the home. scarcely had they reached rome when, to the surprise of everybody, it was reported that pietro had dispatched a judicial warning, in which he set forth that francesca pompilia was not really his own daughter and that therefore he was not obliged to pay the dowry. he brought the attestation of violante his wife, who had declared that to check her husband's creditors in the matter of the trust fund and to enjoy the income of the bonds she had feigned to be pregnant and, that her husband might not discover the trick, she agreed with him that when she became pregnant they should abstain from association until after the birth of their child. and so, on the very day of this pretence, they took separate bedrooms; still further, by well-arranged clothes, she feigned the swelling of the womb, and by suitable drugs made pretence of nausea until her time was come. she then took advantage of a day when pietro was occupied in his lawsuits, to bring forth the pretended birth, which was well carried out by the sagacity of a midwife in the secret, who provided whatever was necessary. and that the house servant might not detect the trick, they sent him to the apothecary to secure certain medicines. at the same time the midwife went to get a little creature whom she had received the day before from a neighbour, who was already in the secret. when she had returned to the house she summoned a familiar friend of the comparini from a window. matters were so well arranged that when the woman arrived, there was nothing more to do than to make her believe what was not really so. and to trick more surely the thought of this neighbour, they feigned that when violante wished to pass from the bed to a chair, she fainted into the arms of the woman by reason of her pains, since the midwife could not run up in time. this unexpected act of pietro, which became known in rome immediately, was heard with less wonder than scorn. the just anger of the franceschini would have undertaken due vengeance if it had not been mitigated by the hope that, since pompilia was not the true and legitimate daughter of pietro and violante, the marriage would be annulled and guido's wounded reputation would be healed. but when he had taken counsel with several authorities and found they were of different opinions, he was unwilling to risk so doubtful an affair, in the promotion of which they would necessarily confess and presuppose that she was not the daughter of the comparini, and by this confession they would be prejudiced in their claims to the dowry. they opposed the judicial notice, and obtained for pompilia the continuance of her quasi-relation as daughter, together with a decree for the transfer of the dowry bonds. but pietro appealed to the signature of justice so trickily that the franceschini had the expense of the transfer, but not the enjoyment of the income, since they obtained from it not even a two months' payment. the unfortunate pompilia was the victim of the hatred of these two houses; for she was left alone in arezzo at the will of her husband, her mother-in-law, and her relatives, who were mortally offended at her parents, and she was hourly threatened with death. in so deplorable a state the courage even of a more mature woman would have failed, not to speak of that of a girl only sixteen years old. for she was innocent of the wiles of her mother and of the duplicity of her father and by her own good qualities she was worthy of tenderness rather than cruelty. the unhappy one suffered as best she could these tyrannies which were ever increasing, but despairing of all hope of peace, she often had recourse to the governor of the city, that he might interpose his authority with the franceschini. as this was of no avail, she threw herself at the feet of the bishop, who had guido come into his presence and who tried to reconcile him. but guido's anger increased all the more because of this public recourse, and he threatened pompilia with certain death if she should ever try it again. when the poor child saw every way to peace closed against her she appealed to canon conti, a relative of the franceschini, who was very well informed of her wretchedness because he visited the house, and she begged him to save her life, which was in continual peril. he was moved to pity, for he knew that she had no other remedy than flight. as he could not personally assist in this, lest he would have to bear the hatred of the entire family connection, he suggested to her that the very person for such an enterprise was the canon caponsacchi, his intimate friend and somewhat related to him by blood, whose courage was no less ready to meet danger than to overcome it. pompilia accepted the counsel of conti, who lost no time in opening the affair with caponsacchi. he at first showed some unwillingness, as he hesitated to carry away a wife from her husband, even with the sole purpose of conducting her to her own parents. but when he had been fully informed of the insufferable abuses of guido and his relatives his pity prevailed over all other considerations and he accepted the undertaking. pompilia, who was eager for this, tried to win him by letters and amorous verses, yet always keeping herself true to her marriage vows, as one may read in her letters. in some of these she praises the modesty of caponsacchi, in others she reproves him for having sent some octaves which were slightly reprehensible, and she urged him to keep unstained that nobility of which he boasted. on the day appointed for flight, with the assistance of canon conti, the two took their places in a carriage and travelled as fast as they could, without resting save when it was necessary to change horses. they arrived the second morning at dawn at castelnuovo, and, in spite of the fact that the host had assigned them a bed for repose, pompilia seated herself in a chair and caponsacchi went down to the stable to urge on the driver. when guido awoke after the flight of pompilia and perceived that she was not in bed, he arose in a fury, and, seeing the jewel-box open and minus the jewels and money, which it had contained, he surmised what had happened to him. accordingly, on a good horse, he sped along the roman road and overtook the fugitives at the abovesaid inn of castelnuovo an hour after their arrival. when pompilia saw him, with that courage which desperation may arouse even in the weakest spirits, she seized caponsacchi's sword which lay upon the table, unsheathed it, and thrust at his life, calling him betrayer and tyrant. guido, fearing lest her spirit no less than the valour of caponsacchi might bring his death rather than revenge, turned his horse and rushed to the authorities. he had the fugitives arrested and conveyed to the new prisons, where he entered charge of flight and adultery against them. the abate paolo who, as has been said, was the secretary of the religious order of malta in rome, made noisy recourse for his honour to the pope, and he put a petition before monsignor pallavicino, the governor, demanding that he declare caponsacchi the seducer of his sister-in-law, and both of them guilty of adultery, and that his brother for that reason was entitled to gain the entire dowry. legal proceedings were instituted against them according to the most rigorous forms of law, but no proof of guilt was found against caponsacchi and pompilia except the love-letters written at the time of the arranging of the flight, the undertaking of the flight itself, and the deposition of the driver. for the latter declared that he had sometimes seen, when he had turned back during the journey, that they were joined face to face, that is cheek to cheek, a matter which did not make full proof of fault, since the rough roads and the headlong speed of the journey jostling them about might have been the cause of it. wherefore the court deemed it prudent and just to sentence caponsacchi to three years' relegation in civita vecchia for his rashness in running away with a wife from her husband, even though the motive was pity. while the case of the franceschini against pompilia was on trial, pompilia was transported with their consent, as their prisoner, into the monastery of the scalette on the lungara, with the obligation that guido, her husband, should provide her food. there, after a little while, it was discovered that she was pregnant, and as it no longer comported with the reverence of that place that she should remain there, with the consent of abate paolo, who had power of attorney for his brother, monsignor the governor ordered that she should pass into the home of the comparini, her parents, under security of scudi to keep it as a secure prison; and he declared that guido's obligation for her food should cease the very day she left the monastery. this cause, in which the franceschini were not obliged to have hand for mere honour's sake, was seen to have its chief motive in selfishness. therefore there was not a company where the conduct of one or the other party was not censured. for this reason the religious order of malta gave secret intimation to abate paolo that he should resign his office. at the loss of this honourable post, rein was given to the evil tongues of his adversaries. this put abate paolo in such straits that, ashamed to meet his dearest friends, he decided to leave rome and to pass to a clime where information of the dishonour that so afflicted him would never come. when guido was informed of the departure of his brother and of the obligation resting on him of repairing the honour of his house, he thought that to go into voluntary exile, as his brother had done, would only prove the baseness of his own mind. for he had been justly charged with this, since at the time he had overtaken his wife with her abductor he had failed in that very place to take the vengeance which was demanded at his hands. in due time pompilia had given birth to a son, who was sent out of the house by the comparini to nurse. thereupon every one believed, and especially violante, that the ties of blood would move guido to a reconciliation with his wife. for in spite of their declaration that pompilia was not their daughter, the minds of the comparini might still be disposed to some reconciliation. but guido's thought was quite different, for he was continually stirred, even in the absence of abate paolo, to plot the removal from this world of the entire memory of his dishonour by the death of pompilia, pietro, and violante, and possibly of still others. guido had in his employ, in the country, a daring and wicked labourer [alessandro baldeschi] to whom he often exaggerated the shame which his wife and the comparini had brought upon his house. to him guido revealed that with his assistance he wished to purge with their blood the stain to his honour. the cut-throat straightway accepted and declared that, if there were need of other company, he had three or four friends for whom he would vouch. guido replied that he should take three bold and trusty ones to make sure against any possible resistance, and should use all care to secure them at the lowest possible price. when all had been agreed upon, and arms suitable for the affair had been prepared, guido, with his four companions in disguise, secretly took the road to rome. reaching the home of the comparini at eight o'clock in the evening, one of them knocked at the door, and when pietro responded, the murderer told him that he had a letter to give him which had been sent from civita vecchia by caponsacchi. when the women heard this they told pietro to have him come back again next morning, urging him not to open the door. but he was curious about the news from caponsacchi, and when the murderer replied that he could not come back in the morning, as he was obliged to leave that night, he opened the fatal door and thereby admitted his own death and that of violante and pompilia. guido in a transport of rage leaped in with two companions, leaving the others on guard. they first dealt the poor old man many blows, and deprived him of life before he could lift his voice. scarcely had the unfortunate women seen this when, transfixed with like wounds, they suffered the same fate. upon the unfortunate pompilia fell the blows of her husband, accompanied with countless insults, and after he had trampled her several times under foot and wounded her anew, not trusting his own fury, he told his companions to see if she were really dead. one of them lifted her by the hair and let her fall again, and assured guido that she was no longer alive. when this barbarous murder had been concluded and the money agreed upon had been paid to the cut-throats, guido wished to leave them, but they would not allow him to desert them for fear that one might kill another, as frequently happens for hiding such misdeeds. or else the murderers, while united with their leader, had agreed to kill guido as they thought he might have a large sum of money. hence they did not consent to his leaving them and they took the road toward arezzo together, which they agreed to make on foot, as they could not secure posthorses. from these repeated wounds pietro and violante were quite dead, but not pompilia, though her wounds were more numerous. for because of her innocence she was especially helped by the divine mercy, and she knew so well how to feign death that she deceived the murderers. when she saw that they were gone, with her dying breath she mustered sufficient strength of voice to make the neighbours hear her cries for help. they found her in the last extremities, and eagerly ministered first to her soul and then to her body. her wounds were so numerous and of such a nature that although they did not immediately kill her, they made her death certain. this occurred a few days later, to the sorrow of all those who assisted her and who had knowledge of this pitiable case. the fortitude with which she suffered the pains of her treatment caused as much wonder as her resignation to the divine will caused love. she not only did not blame the cruelty of her husband, but with fervent prayers she besought god to pardon him. the compassion of her assistants both for her soul and for her body i attest by the following sworn statement concerning not only her innocence, but the happy passage of her pure soul to heaven. [then follow the affidavits of fra celestino and others given in _the book_]. divine justice, which would not suffer so atrocious a deed to go unpunished, caused the criminals to be overtaken by the authorities at the break of dawn at an inn a few miles from rome. for when they had eaten a little, they went to sleep by the fire, fatigued by the journey and overcome with drowsiness. the police rushed violently in upon them and, pointing carbines at their breasts, assailed and bound them at once. they were straightway taken to the new prisons, and the governor apprised the pope of this barbarous murder and of the arrest of the guilty. he gave commands that, without delay and with all rigour, trial should be brought, this being a case which, by reason of the consequences which might arise from it, should be examined into with very special attention. far less torment than would seem to be necessary had to be applied to get the confession of the murderers and of guido, who more than the rest had stood by his denial. but at the sight of torment he had not the heart to resist longer and confessed fully, saying indeed that the crime had had no other motive than the reparation of his honour which had been so publicly offended. this was a matter which any common man would have undertaken, not to speak of himself, who was a gentleman; and if on his first examination he denied the truth of this, he had done so lest he might injure his companions, who had aided him in a deed worthy of all sympathy, because he had honour as his sole end. with the confession of guido and its ratification by the rest, the process was finished, and they were sentenced, the cut-throats to the gallows and guido to mannaia, a means of death conceded rather out of respect for his being in clerical orders than for any other reason. the advocate and procurator of the poor had written so ably in their defence on the point of honour that there is no memory of more learned arguments. but the features of the crime were so many (and all of them punishable with death) that they were overcome no less by their nature than by their number. among such features was the bearing of arms prohibited under capital penalty, the death of pietro and violante who were not accomplices in the flight of pompilia, the murder while a lawsuit was pending, and in their own home, which place the authorities had with the consent of guido assigned to pompilia as a secure prison. the many other weighty charges which displayed the great learning of the defenders were the just cause of the death of the accused. yet with the usual hope of all those who make confession of capital crime, guido flattered himself that he could save his life by reason of his honour. at the unexpected announcement he did not give up to such a frenzy as frequently follows in those who experience so terrible a disaster, but, as if stupefied, after a few minutes he heaved a deep sigh, accompanied by a few tears, which by their extraordinary size showed dying symptoms. he said: "i well feared a heavy sentence, but not that of death. my crime is great, but love of honour has never suffered me to perceive what it was until now that sentence has been passed, which i hold in such reverence that i wish to appeal only to god, to whom alone i turn for the only mercy. without his will i should never have reached this awful pass, which may be a comfort to me and not a source of bitterness, that i may gain by entire resignation to his will the merit of his pardon." and then he threw himself into the arms of the compassionate frati and showed such signs of true contrition that their prayers were accompanied by tears rather than by exhortations. his four accomplices did not submit themselves with the same readiness, for as they were of lower birth so were they less swayed by reason, which would render them impressible to the punishment they had merited. the oldest [baldeschi] and youngest [agostinelli] were the most obstinate, the one from having a heart hardened by so many years of evil life, and the other being all too sensitive to so harsh a punishment for a single crime, in the very flower of his youth, without ever having spilled a drop of blood, and with the sole fault of having been induced to stand as guard at a door through which guido had had to pass, to purge himself of the stains to his honour by the blood of his foes. as the hour of execution drew nearer, the stubbornness of these wretches so increased that the frati despaired of their repentance. at last the divine mercy, which works miracles when we least expect it, entered their hearts and gloriously demonstrated his omnipotence. they finally trusted in god, and the memory of those faults which had made them obstinate, and which were now illuminated by the divine grace that disposed them to penitence, fitted them for pardon. when these souls had been secured for god after such a hard contest, the execution passed from the new prisons at tor di nonna to the scaffold raised in the piazza del popolo in view of the gate and of the corso. in the midst was the block on a lofty scaffold, larger than usual and with steps made with particular care; on the two sides the gallows were placed at equal distances. in spite of the vastness of the piazza, not a single foot was left which had not been occupied by stands, which were covered with tapestry and other ornaments forming a theatre for festal celebrations rather than for a solemn tragedy. his four companions preceded guido, each of them in a separate cart, assisted by the devotion of the accustomed frati [the brotherhood of death], and followed by a countless concourse of people praying for a blessed departure, which in view of their contrite resignation seemed not at all doubtful and even a certain hope. rarely did guido franceschini turn his eyes from the crucifix, except when nature, overwearied by the steadfastness of his gaze, made him turn away his head but not his heart, which had been wholly given to his creator so that none was left for himself. when he had reached the piazza di pasquino, and the cart had stopped before the church of agonizzanti, where on days of public execution it is customary to offer the sacrament to the delinquents condemned to death and therewith to bless them, guido knelt and began to recite, in a voice quite audible to bystanders, certain verses of the _miserere_, and among them this, "hide thy face from my sins and blot out all mine iniquities." he accompanied this with such signs of sorrow and penitence that the people by their tears showed no less grief than the one condemned. with equal devotion his companions received the same blessing, but the behaviour of the youngest [agostinelli] was remarkable beyond belief, who beside himself with his love of heaven and of god, by his expressions which exceeded his own capacity, confounded the wisdom of his pious assistants. thence by the most densely populated streets they continued the journey to the piazza del popolo, where they all died, guido last, with those acts of contrition which their preparation had shown. as the youngest had displayed most blessed signs during life, so it pleased god that he met his death likewise, for at the moment the executioner did his work, he clasped between his breast and his hands the image of that crucifix whereby they had become certain of divine pardon. this assured the people of his salvation as his untimely death had aroused their pity. rome has never seen an execution with a greater concourse of people, nor does it remember a case on which there was such general talk as on this. some defended the comparini, because they had suffered abuse, others the franceschini as it was a matter of honour. but, on looking at the matter dispassionately, they were adjudged to be equally guilty, except that pompilia, who was entirely ignorant of the truth, was without blame; for she had consented to the marriage at the command of her mother without the knowledge of her father, and had fled from her husband for fear of death with which he had often unjustly threatened her. from trickery arose the union of these two houses, from the franceschini in frauds regarding property they did not possess, from the comparini by the pretended birth, or by this very pretence if the birth were real. the trick arose from greed of gain in pietro to secure the trust moneys for himself, and in the franceschini to minister to their own ease; so all was done contrary to laws both human and divine. hence a bad beginning was followed with a wretched ending, as has been told above. notes and comment . _title-page_ (p. ). the manuscript title-page of the _book_ is closely paraphrased by browning, _r.b._ . - , the word "position" being used as the equivalent of italian _posizione_. . _the index_ (p. ) (italian, _indice_) is a manuscript table of contents, evidently supplied by the original collector. . _a transcript of the sentence against pompilia_ (pp. - ) in the criminal courts of arezzo, dated february , (for ). parallel with the process of flight (_see_ note ) in rome, the franceschini family evidently instituted criminal proceedings in arezzo against the fugitive pompilia, charging her with theft and adultery. signor guillichini and the driver borsi were included in the action as accessory to the crime. the franceschini were able to secure the condemnation here which was not obtainable in rome. under security of this sentence, granted in december , guido could safely go on with the assassination of his wife, so far as tuscan law was concerned. the transcript in the _book_ is dated february , while the murder trial was at a crisis, and was probably sent to rome by signor cencini to assist guido in his peril. it is noteworthy that guido did not include caponsacchi in his accusation in arezzo. . _romana homicidiorum._ the frequently repeated designation of the case--_romana causa homicidiorum_--roman trial for murders. . _hyacinthus de archangelis_ (italian, _giacinto arcangeli_), _procurator pauperum_, was guido's chief defender, not an attorney employed privately by the defendant, but an official states' attorney for the defence. the roman court procedure in all cases assumed the right and obligation of the state to conduct both sides of a criminal case. . _desiderius spretus, advocatus pauperum_, was the co-defender of the accused. humphrey's _urbs et orbis_, p. , makes plain the respective functions of the two attorneys: "the advocate is a man skilled in civil and canon law, who defends causes in writing or by word of mouth, on the point of law, setting before the judges that which is true in law, or best founded in law, or the principles of law which ought to be applied in a particular case. his is the scientific part of the cause, and he speaks only to the point of law. matters of fact are to be established by the procurators, and it is upon these established facts that the advocate develops his judicial conclusions." . _joannes baptista bottinius, fisci et cam. apost. advoc._ (advocate of the fisc, or treasury, and of the reverend apostolic chamber), the chief prosecutor of the criminals, with functions equivalent to those of the prosecuting or states attorney in the common law. browning continually used the clipt form, fisc. . _franciscus de gambis, procurator fisci_, was the coadjutor in the prosecution, opening the case in pamphlet , but thereafter playing little part in the case. . _antonius lamparellus, procurator charitatis_, the attorney who, in pamphlet , defended the memory of the dead pompilia for her heir and against both the franceschini family and the nunnery of convertites (_see_ note ), both of whom were accusing her memory to gain her estate. this trial in the criminal court of the governor, took place between the death of guido, february , and may , . the decision "for absolution" was made _definitive_ by the decree of court, september , (pamphlet ). . _the nunnery of the convertites._ within a month after the death of pompilia the nunnery of _sta. maria maddalena delle convertite al corso_ (founded _pro mulieribus ab inhonesta vita ad honestam se convertentibus_) laid claim to the whole of pompilia's property on the ground of their privilege of receiving the property of women of evil life who died in rome. . _most illustrious and most reverend lord governor._ all the arguments and the summaries of evidence in the murder case are addressed to the governor of rome, but the vice-governor, judge venturini, seems to have presided in his stead. . the title and imprint on the right half of the final page of each of these official pamphlets was evidently for convenience in filing the documents when folded into bundles. the imprint _typis rev. cam. apost._ (type of the reverend apostolic chamber), is the official imprint of the papal press. . _the deposition of angelica_ (pp. - ). angelica, a domestic in the franceschini home during january , while the comparini were living in arezzo with their son-in-law, was probably carried back to rome by the comparini on their return to rome that she might serve as a witness to the poverty and parsimony of guido. she makes her affidavit at rome, june , , evidently for use in the suit brought by comparini to recover the dowry paid with pompilia. how far it is true and how far it is the prejudiced and bitter word of a resentful servant who had been kicked out of doors, we cannot say. but its publication through court procedure must have been bitterly humiliating to the franceschini. what was worse, the comparini probably used this as a part of the slanderous stories they took pains to print and circulate in rome (p. ). . _diverse attestations_ (p. ). these attestations, made june , , nearly seven weeks after the arrest of pompilia at castelnuovo, were evidently secured by her lawyers for her defence in the process of flight (note ). . _the letters of signori romani and albergotti_ are undated, but were probably written soon after the departure of the comparini from arezzo in . . _pompilia's letter to abate paolo_ (pp. - ). the much discussed letter of pompilia to abate paolo, dated june , , full of calumniation of her parents, who had left arezzo only three months before, could not have been written by the fourteen-year-old girl voluntarily. guido must have composed it as a counter attack on the comparini, who were bringing suit against him at rome, and were loading him with shame. . _the attestations of fra celestino and others_ (pp. - ), dated january , only four days after the death of pompilia, was given at the instance of pompilia's executor, tighetti. it is a most important piece of evidence, and is cited repeatedly during the trial. its genuineness and sincerity are beyond question, and browning gained from it most of his faith in the innocence and saintly patience of pompilia. . _process of flight._ after the arrest of pompilia and caponsacchi at castelnuovo they were taken to rome and lodged in prison. they were soon brought to trial on the criminal charge of adulterous elopement. the case seems to have been in the same court which tried guido for murder eight months later, and probably continued in a desultory fashion all summer. in this case both of the accused made the deposition later included in the _book_. in this trial also, guido tried to introduce the testimony of the harlot-servant, maria margherita, and the love-letters. the case was never decided so far as pompilia was concerned. . _the deposition of pompilia_ (pp. - ), dated may , , two weeks after her arrest at castelnuovo, giving the causes of her flight from her husband's home, was made by pompilia for her own defence in the process of flight. the marginal comments, adverse to her, are, of course, the prejudiced comments of guido's lawyers. . _the deposition of caponsacchi_ (pp. - ), made about the same time and under the same circumstances for the process of flight, was reintroduced as evidence in the murder case, but there is no reason to think that caponsacchi was brought into the latter case in any other way. . _the love-letters_ (pp. - ). these letters are one of the most elaborately discussed pieces of evidence in the _book_. guido claimed to have found them at the inn of castelnuovo after the arrest of the fugitives, and he offered them in court during the process of flight, as a proof of adultery in his wife, but they were thrown out by the court. their conventional fine-letter-writing, their studied innuendo and finesse, were quite beyond the capacity of an illiterate girl like pompilia. they were probably composed by guido, and if so, they prove that he was basely scheming to drive his wife into dishonourable flight that he might disgrace her and cast her off. the eighteenth letter was specifically denied by caponsacchi in his cross-examination. . _the sentence of relegation_ (p. ) for three years in civita vecchia was decreed against caponsacchi at the close of the process of flight in september, . it is commensurate with priestly indiscretion rather than with crime. . _the account of fact_ (pamphlet ). this anonymous italian pamphlet is not at all a part of the official record of the murder case. it has no imprint and is in entirely different face of type, and must have been printed privately for circulation outside the courts. while much less technical and formal than the arguments of the lawyers, and much more studious of popular effects, it slips back repeatedly into the thought and the language of arcangeli, the defender of guido. it probably suggested half-rome in _the ring and the book_. . _the response_ (pamphlet ) is a highly rhetorical, but effective, retort to the anonymous writer. it was written during the later stage of the murder trial, and was probably the work of signor bottini. it likewise is without imprint and signature, but may have been broadly scattered throughout rome. . "_to keep to this home of pietro ... as a prison_," _domus pro carcere_ (p. ). for a month after the sentence against caponsacchi, pompilia was kept prisoner in the refuge called the _scalette_--a provision for her safekeeping, not a punishment. on october , she was permitted to give bond to keep the home of her foster parents, the comparini, as a prison, _domus pro carcere_, sentence against her being suspended. . _the scalette._ the _conservatorio di s. croce della penitenza alla lungara_ was an institution for penitent women, founded , and popularly called _scalette_, because of the two adjoining stairways. browning confuses this institution with the convertites (note ). . _baptismal record of pompilia_ (p. ). this note, taken from the parish record of san lorenzo, in lucina, enables browning to make the exact statement of pompilia's age and her full name, as given in the opening lines of her monologue. . _pompilia's letter_ (p. ) to her foster parents, written from prison at castelnuovo only two days after her arrest, is her plea to them for assistance. it was probably cited as evidence in the process of flight. . _the will of pietro comparini_ (pp. - ), evidently drawn up after he had learned pompilia was not his own daughter, and before her return to rome, aimed to prevent her being disinherited for that reason. its personal tone is good, and it is almost the only first-hand evidence of the character of pietro to be found in the _book_. . _power of attorney_ (p. ). under date of october , , guido grants full power of attorney to abate paolo, who was representing him in the lawsuits in rome and in other matters of business. . _arcangeli's manuscript letter_ (pp. - ). on february , , only a few hours after the execution of guido, signor arcangeli, his legal defender, announces the end of the case to signor cencini, the florentine lawyer who collected the _book_, and who seems to have been professionally related to the franceschini family, as he had sent certain "proofs" to assist the cause of guido, probably including the report of the criminal condemnation of pompilia in the tuscan courts. (_see_ note ). this letter is reproduced by browning, _r. b._ xii. - . . _the other letters_ (pp. - ), written on the same day and to signor cencini, give a few additional details. the writers seem to have been professionally associated with the franceschini family. . _francesca pompilia_, foster daughter of the comparini, _b._ july , ; was married to guido franceschini, december ; fled from her husband's home in arezzo, april , ; arrested at castelnuovo, may ; wrote to her foster parents from her prison at castelnuovo, may ; made deposition in rome concerning her flight, may ; was on trial for flight and adultery during the summer of ; was placed in the convent of the _scalette_, september ; removed to the home of the comparini as prison, october , ; gave birth to a son, gaetano, december , ; was assassinated january , ; died january . . _giuseppe maria caponsacchi_, _b._ may , , was invested canon of the church of santa maria della pieve, november , , and resigned "of his own accord," may , . he is referred to in the _book_ as a man of courage, and his words as he faced guido at castelnuovo are significant: "i am a man, and have done what i have that i might save your wife from death." his affidavit is convincingly straightforward, in spite of certain discrepancies with pompilia's statements, and there is evident moral indignation in his replies under cross-examination. his participation in the dangerous flight in mere amorous intrigue seems unbelievably foolish, and could hardly have been carried through save on the motive he assigns, courageous "christian compassion." in september he went to civita vecchia under sentence of three years' relegation. . _canon conti_, called the "mediator in the flight," was brother of count aldobrandini, who had married guido's sister, and conti is accordingly spoken of as a "relative and frequenter of the franceschini home." he had been invested canon of the pieve, august , . he must have been fully informed of pompilia's sufferings, and to him she turned at last for help. deeming it improper for himself to afford her relief, he urged his friend caponsacchi to accompany her. no criminal procedure was instituted against him in arezzo when pompilia and guillichini were accused. he died january , and the second anonymous pamphleteer hints that this was due to foul play. . _guido franceschini_, _b._ january , , the youngest son of an impoverished, second-rate, noble family of arezzo, had sought his fortunes in rome, where he became secretary of cardinal nerli. he dropped out of this service in middle life, with hardly a dollar in his pocket, and planned to recoup his fortunes by marriage with pompilia, the heiress of the well-to-do comparini. after the marriage in december , the comparini accompanied him back to arezzo. he seems to have been unattractive and saturnine, and later on proved himself both crafty and brutal. . _abate paolo franceschini_, _b._ october , , the older, shrewder, and more able brother of guido, was more successful in seeking his fortunes in the official world of rome. he became secretary of the powerful cardinal lauria, and on the death of the latter, november , , obtained the lucrative office of secretary of the order of st. john of malta. he assisted guido in effecting the marriage with pompilia, and was his active agent in rome during the lawsuits which followed. in he lost his secretaryship because of the ignominy which had come upon him in guido's shameful troubles, and left rome, possibly, as he is accused by the second anonymous pamphleteer, to assist in planning the murder of the comparini. . _honoris causa._ as the fact of the murders by guido and his cut-throats was subject to no dispute, the whole law case turns on the question whether these murders had been _for the sake of honour_, the ever repeated plea of the unwritten law for the right of the husband to slay a wife sinning against her wifehood. the lawyer's devote themselves to ascertaining the limitations and privileges of this plea. . _incontinenti, ex intervallo._ there is much argument on the justification for honour's sake in murder done _immediately_ after the insult, or _after an interval_ of time has elapsed. in the latter case, the murder becomes premeditated, and is not justifiable on the ground of excusable heat of passion at an insult. . _the aggravating circumstances._ the prosecution makes much of the attendant criminal circumstances which surrounded the main crime of murder. these are first, the assembling of a band of armed men, constituting the crime of rebellion; second, the murder of a prisoner while under the care of the courts, pompilia being technically a prisoner detained in the process of flight; third, the assault upon opponents in a pending lawsuit, the comparini then being at law with guido; fourth, the violent breaking into a private home; fifth, the commission of crime under cover of disguise; sixth, the use of certain types of barbarous weapon, the very possession of which was a capital offence. the first three of these were _laesa majestas_, criminal insult to the majesty of the law. . _san lorenzo in lucina._ this church in the heart of rome just off the corso, and not very far from the home of the comparini at the corner of via vittoria, and strada paolina, was evidently the parish church of the comparini, as both the birth and death of pompilia are entered in its register. . _castelnuovo._ a village of but a few houses, fifteen miles north of rome. the inn and posthouse where pompilia and caponsacchi were overtaken by guido thus became one of the most important scenes in the tragedy. . _torture of the vigil._ guido and his companions were tortured thus, to get fuller testimony from them. this torture consisted originally in merely keeping the victim awake until he told his crime. later on his confession was accelerated by auxiliary devices for intensifying the suffering of the subject. . browning has taken the peroration used in the first lawyer's monologue, _r. b._ viii. - , directly from the peroration of arcangeli in pamphlet , p. . . the description of the execution as given in _r. b._ xii. _et seq._, is taken from the additional italian pamphlet, pp. - . . in like manner _r. b._ viii. - , is closely drawn from the _book_, pp. - , with an interpolation in lines - from page . more than fifty of such word to word borrowings from the _book_ are made in this monologue. minute of the definite order of events in the case july , . pompilia born. (note ). december (?) . pompilia married to guido franceschini. december . the comparini accompany the bride to arezzo. four months residence together in arezzo. domestic broils in arezzo, january and february, . march . the comparini return to rome. april or may . violante reveals base parentage of pompilia. june , . pompilia's letter to abate paolo. (note ). june , . affidavit of angelica. (note ). summer of . pietro comparini prosecutes suit to recover dowry. august , . letter of the governor to abate paolo. september , . letter of the bishop of arezzo to abate paolo. march . pompilia seeks aid of confessor romano. april, . seeks aid of guillichini, conti, and caponsacchi. april ( a.m.). pompilia flees. april (in the evening). fugitives arrive at castelnuovo. may (early in the morning). guido overtakes fugitives and has them arrested. may . pompilia writes from the prison of castelnuovo. may . pompilia makes her deposition. (note ). may . pompilia is further cross-examined. june , . certain persons in arezzo make affidavit in pompilia's behalf. (note ). summer of . the process of flight. (note ). september , . caponsacchi sentenced to relegation. (note ). october . pompilia permitted to return home under bond. (note ). fall of . pompilia institutes suit for divorce. fall of . the franceschini push a criminal suit against pompilia in the criminal courts of arezzo. (note ). fall of . abate paolo loses his secretaryship of the order of st. john. december , . pompilia gives birth to a son. december , . guido and his cut-throats arrive in rome. january , . guido murders his wife and the comparini. january . guido and his associates arrested and imprisoned. january . pompilia dies. january . fra celestino makes affidavit. (note ). january . the murder trial begins. january . conti dies in arezzo. january . sta. maria maddalena delle convertite institutes suit to gain pompilia's estate. (note ). end of january. the torture of the vigil. (note ). february . the second stage of the murder trial. february . certificate of the baptismal record of pompilia obtained. (note ). february . certificate of the tuscan criminal prosecution of pompilia obtained. (note ). february . guido declared guilty, but a stay of sentence granted. february . execution set for following day. the pope overrules delay. february , . the murderers are executed. spring of . the franceschini bring suit to recover pompilia's property. may . the criminal court decides in favour of pompilia's executor. september - , . final decree of court, utterly clearing pompilia's reputation. browning uses all the above chronology with scrupulous accuracy, save when, for good artistic reasons, he changes the flight from april to the rd, st. george's day. minute of the personal names found in the book and pamphlet and used by browning in his poem franceschini, signor guido. (note ). franceschini, abate paolo. (note ). franceschini, canon girolamo, _b._ august , , brother of guido. franceschini, donna beatrice, - , mother of guido. franceschini, count tommaso, father of guido. comparini, signor pietro, father of pompilia. comparini, violante, mother of pompilia. comparini, pompilia. (note ). canon conti. (note ). canon giuseppe caponsacchi. (note ). signor guillichini, helper in the flight. borsi, the driver. signor marzi-medici, governor of arezzo. bishop of arezzo, giovanni matteo marchetti, - . the confessor romano. maria margherita contenti, servant in the franceschini home. monna baldi (albergotti). cardinal panciatichi } cardinal acciajuoli } guido's confessors on the eve of execution. signor tighetti, trustee of pompilia's estate. the babe, gaetano. fra celestino, confessor of the dying pompilia. signor giacinto arcangeli. (note ). signor bottini. (note ). signor spreti. (note ). signor cencini, a florentine lawyer interested in the murder trials. alessandro baldeschi } domenico gambassini } the assassins. francesco pasquini } biagio agostinelli } curate ottoboni, curate at san lorenzo, in lucina. judge tommati, auditor curiae. judge molines, of the ruota. marco antonio venturini, vice-governor, presiding in the murder case. the law's lumber room _of this edition copies have been printed for england and america._ the law's lumber room by francis watt london john lane, the bodley head, vigo st. chicago: a. c. mcclurg & co. mdcccxcv to william ernest henley flotsam and jetsam from his old journal prefatory to the lumber room you drag furniture no longer fit for daily use, and there it lies, old fashioned, cumbrous, covered year by year with fresh depths of dust. is it fanciful to apply this image to the law? has not that its lumber room of repealed statutes, discarded methods, antiquated text-books--"many a quaint and curious volume of forgotten lore"? but law, even when an actual part of the life of to-day is like to prove a tedious thing to the lay reader, can one hope to find the dry bones of romance in its antiquities? i venture to answer, "yes." among all the rubbish, the outworn instruments of cruelty, superstition, terror, there are things of interest. "benefit of clergy," the "right of sanctuary," bulk large in english literature; the "law of the forest" gives us a glimpse into the life of mediæval england as actual as, though so much more sombre than, the vision conjured up in chaucer's magic _prologue_. "trial by ordeal" and "wager of battle" touch on superstitions and beliefs that lay at the very core of the nation's being. "as full of fictions as english law," wrote macaulay in the early part of the century; but we have changed that, we are more practical, if less picturesque, and john doe and all his tribe are long out of date. between the reign of james i. and that of victoria all the subjects here discussed have suffered change, with one exception. the "press-gang" is still a legal possibility, but how hard to fancy it ever again in actual use! i fear that these glimpses of other days may seem harsh and sombre; there is blood everywhere; the cruel consequences of law or custom are pushed to their logical conclusions with ruthless determination. the contrast to the almost morbid sentimentalism of to-day is striking. so difficult it seems to hit the just mean! but the improvement is enormous. gibes at the law are the solace of its victims, and no one would deprive them of so innocent a relief, yet if these cared to enquire they would often find that the mark of their jest had vanished years ago to the lumber room. the plan of these papers did not permit a detailed reference to authorities, but i have mentioned every work from which i derived special assistance. i will only add that this little book originally appeared as contributions to the _national observer_ under mr w. e. henley's editorship. i have made a few additions and corrections. contents page benefit of clergy peine forte et dure a passage in shakespeare (fines and recoveries) the custom of the manor deodands the law of the forest par nobile fratrum (john doe and richard roe) sanctuary trial by ordeal wager of battle the press gang sumptuary laws benefit of clergy "benefit of clergy" is a phrase which has entered into english literature and english thought. the thing itself exists no longer, though the last traces of it were only removed during the present reign; but it so strikingly illustrates certain peculiarities of english law-making, it has, moreover, so curious a history as to be interesting even to-day. it took its rise in times when the pretensions of the church, high in themselves, were highly favoured by the secular power. the clergy was a distinct order, and to subject its members to the jurisdiction of the secular courts was deemed improper; so, when a clerk was seized under a charge of murder, or some other crime, the ordinary stepped forth and claimed him for the "court christian," whereto the whole matter was at once relegated. there the bishop or his deputy sat as judge. there was a jury of twelve clerks before whom the prisoner declared his innocence on oath. he was ready with twelve compurgators (a species of witnesses to character) who, after their kind, said more good of him than they had any warrant for; after which, on the question of fact, some witnesses were examined for, but none against him. this curious proceeding, which was not abolished till the time of elizabeth, soon became a sham. nearly every accused got off, and the rare verdict of guilty had no worse result than degradation or imprisonment. now, so far, the system is intelligible, but in the succeeding centuries it lost this quality. english legal reformers have ever shown a strong disinclination to make a clean sweep of a system, but they keep tinkering at it year after year with a view of making it more rational or better adapted to current needs. they did so here, and the result was a strange jumble of contradictions. first, the privilege was confined to such as had the clerical dress and tonsure, afterwards it was extended to mere assistants, the very door-keepers being held within the charmed circle; yet the line had to be drawn somewhere, and how to decide when every ruffian at his wits' end for a defence was certain with blatant voice to claim the privilege? well, could he read? if so, ten to one he was an ecclesiastic of some sort, and therefore entitled to his clergy. and it soon came that this was the only test demanded. if you could read you were presumed a parson, and had your right to at least one crime free. as no woman could possibly be ordained, she could not "pray her clergy"--(an exception was made in the case of a professed nun)--nor might a _bigamus_, who was not a man who had committed bigamy, but one who "hath married two wives or one widow." however, a statute ( edw. vi., c. , s. , _temp._ ) made an end of this latter distinction by declaring, with quaint tautology that _bigami_ were to have their clergy, "although they or any of them have been divers and sundry times married to any single woman or single women, or to any widow or widows, or to two wives or more." before this it might well be that your chance of saving your neck depended on whether you had married a widow or not; which species was dangerous in a sense undreamt of by mr weller. as regards the reading, it must not be supposed that a difficult examination was passed by the prisoner before he escaped. you had but to read what came to be significantly called the neck-verse from the book which the officer of court handed you when you "prayed your clergy." the neck-verse was the first verse of the fifty-first psalm in the vulgate. it was only three words--_miserere mei, deus_: "have mercy on me, o god." it seems strange that it was ever recorded of anyone that he did not read, and was therefore condemned to be hanged; for surely it were easy to get these words by heart and to repeat them at the proper time? this must have been done in many cases, and yet sometimes criminals were so densely ignorant and stupid, or it might be merely bewildered, that they failed; then the wretch paid the penalty of his life. "_suspendatur_," wrote the scribe against his name, and off he was hauled. the endless repetition of this word proved too much for official patience, and with brutal brevity the inscription finally appears, "sus." or "s." and now the neck-verse was free to everyone were he or were he not in holy orders, and he claimed the privilege after conviction, but in the reign of henry vii. ( ) an important change was made. a person who claimed clergy was to be branded on the crown of his thumb with an "m" if he were a murderer, with a "t" if he were guilty of any other felony; if he "prayed his clergy" a second time this was refused him, unless he were actually in orders. of course the mark on the thumb was to record his previous escape from justice. it was with this "tyburn t" (as it was called in elizabethan slang) that ben jonson was branded. it is only within the last few years that careful mr cordy jeaffreson has exhumed the true story from the middlesex county records. the poet quarrelled and fought a duel with gabriel spencer, an actor, and probably a former colleague. the affair came off at shoreditch. jonson, with his rapier, which the indictment (for a reason explained in the chapter on "deodands") values at three shillings, briskly attacked his opponent, and almost immediately gave him a thrust in the side, whereof spencer died then and there. ben was forthwith seized and thrown into prison. whilst waiting his trial he said that spies were set on him, but he was too much for them, and afterwards all the judges got from him was but "ay" and "no." why spies should have been necessary in so plain a case is far from clear. it is more significant that a devoted priest succeeded in converting him for the time to roman catholicism, and he afterwards confessed to drummond of hawthornden that he had come near the gallows. however, what he said, or did not say, is of little weight as compared with the evidence of contemporary judicial records. the fact is clear that the poet of _every man in his humour_, the cunning artist of _queen and huntress_, and _drink to me only with thine eyes_, had a true bill found against him by the grand jury, who sat, by the way, in a tavern, for as yet hicks hall, the predecessor of the session's-house on clerkenwell green, was not. in october , he was taken to the old bailey to stand his trial. he pleaded guilty, asked for the book, read like a clerk ("jonson's learned sock," forsooth!), and as the strangely abbreviated latin of the record has it, "_sign' cum lra' t et del_," that is, marked with the letter "t," and set at large to repair to "the sun," "the bolt," "the triple tun," or some other of those dim, enchanting elizabethan taverns, there to give such an account of the transaction as sufficed to dissemble it till this age of grubbers and dictionaries wherein you are destined to nose every ancient scandal as you go up the staircase of letters. it has been suggested that the officer, moved to inexplicable tenderness, touched him with a cold iron. the only ground for this is that dekker, in his savage satiro mastix; or, _the untrussing of the humourous poet_, makes no reference to the "tyburn t." one fancies that ben speedily acquired a trick of carrying his hand so that the mark was not readily seen, or he may have cut or burnt it out as others did. all the same, the best evidence shows it to have been there. in the reign of james i. another change was made. women got the benefit of clergy in certain cases, and afterwards they were put on the same footing as men. then in the necessity for reading was abolished, and in so was branding. but another process was going on all this time. a great and ever-increasing number of crimes were declared to be without benefit of clergy. the selection was somewhat capricious. among the exempted felonies were abduction with intent to marry, stealing clothes off the racks, stealing the kings' stores, and so on. naturally the whole subject fell into inextricable confusion, and when it was abolished in , even pedants must have given a sigh of relief. one detail escaped the reformer: since the time of edward vi. every peer ("though he cannot read," saith the statute) enjoyed a privilege akin to that of clergy, and it was not till that this last vestige of the system vanished from the statute-book. i will only add that, in its details, "benefit of clergy" was even more grotesque and fantastic than it has here been possible to set forth. peine forte et dure in england during many centuries a prisoner was called to the bar before trial and enjoined to hold up his right hand, by which act he was held to admit himself the person named in the indictment. the clerk then asked him, "how say you, are you guilty or not guilty?" if he answered, "not guilty," the next question was: "culprit, how will you be tried?" to which he responded, "by god and my country." "god send you a good deliverance," rejoined the official, and the trial went forward. if the accused missed any of these responses, or would not speak at all, and if the offence were treason or a misdemeanour, his silence was taken for confession of guilt, and sentence was passed forthwith. if the charge were felony, a jury was empanelled to try whether he stood "mute of malice," or "mute by the visitation of god." if this last were found, the trial went on; if the other, he was solemnly warned by the judges of the terrible consequences summed up by lord coke (trial of sir richard weston in , for sir thomas overbury's murder) in the three words--_onere, frigore, et fame_. the proceedings were most commonly adjourned to give him time for reflection; but if after every exhortation he remained obdurate, then he was adjudged to suffer the _peine forte et dure_. the judgment of the court was in these words: "that you return from whence you came, to a low dungeon into which no light can enter; that you be stripped naked save a cloth about your loins, and laid down, your back upon the ground; that there be set upon your body a weight of iron as great as you can bear--and greater; that you have no sustenance, save on the first day three morsels of the coarsest bread, on the second day three draughts of stagnant water from the pool nearest the prison door, on the third day again three morsels of bread as before, and such bread and such water alternately from day to day; till you be pressed to death; your hands and feet tied to posts, and a sharp stone under your back." there is but one rational way to discuss an institution of this sort. let us trace out its history, for thus only can we explain how it came to have an existence at all. for the prisoner himself there was usually a very strong reason why _he_ should stand mute. if he were convicted of felony his goods were forfeited; while in case of capital felony, the result of attainder was corruption of blood so that he could neither inherit nor transmit landed property. often he must have known that conviction was certain. had he fondness enough for his heirs--children or other--to make him choose this hideous torture instead of milder methods whereby the law despatched the ordinary convict from this world? well, very many underwent the punishment. between - the number was thirty-two (three of them women) in rural middlesex alone. "_mortuus en pen' fort' et dur'_," so the clerk wrote for epitaph against each name, and something still stranger than the penalty itself is revealed to us by an examination of the original records. many of the culprits were evidently totally destitute, and these underwent the _peine forte et dure_ from stupidity, obstinacy, or sheer indifference to mortal suffering and death. the custom of pressing did not obtain its full development at once, and there is some difficulty as to how it began. a plausible explanation is given in pike's "history of crime," and is supported by the authority of the late mr justice stephen. at one time a man charged with a serious offence was tried by ordeal; but by paying money to the king, it was possible to get the exceptional privilege of a trial by jury. thus, when the accused was asked how he would be tried, his answer originally ran, "by god" (equal to by ordeal), or "by my country" (equal to by jury), since to put yourself on the country meant to submit yourself to this last. but trial by ordeal was abolished about , and the alternative was a privilege to be claimed, not a necessity to be endured. offenders soon discovered that by standing mute and declining to claim this privilege, they put the court in a difficulty. the ideas of those distant days were simple exceedingly, and a legal form had strange force and efficacy. to put a prisoner before a jury without his consent was not to be thought of; but how to get his consent? at first the knot was rather cut than loosened. thus, in some cases, the accused were put to death right off for not consenting to be tried "according to the law and custom of the realm." then this was held too severe, and under edward i., in the proceedings of the parliament of westminster, occurs the earliest definite mention of the punishment. it was enacted that notorious felons refusing to plead should be confined in the _prison forte et dure_. here they went "barefooted and bareheaded, in their coat only in prison, upon the bare ground continually night and day, fastened down with irons," and only eating and drinking on alternate days as already set forth. it was bad enough, no doubt, but not of necessity fatal. so the authorities perceived, and they again cut the knot by a policy of starvation. so one infers from the case of cecilia, wife of john rygeway, in the time of edward iii. cecilia was indicted for the murder of her husband; she refused to plead. being committed to prison, she lived without meat or drink for forty days; and this being set down to the virgin mary, she was thereupon allowed to go free. this procedure seems to have been found too slow, and the increase of business at the assizes seemed like to end in a hopeless block. were the judges to encamp in a country town while the prisoners made up their mind as to pleading? something was wanted to "mend or end" the stubborn rascals; and under henry iv., in the beginning of the fifteenth century, the "prison" _forte et dure_ became the "peine" _forte et dure_: with the consequence that, if the accused declined to plead, there was an end of him in a few hours, the provision of bread and water being a mere remnant of the older form of sentence. this procedure lasted till , when the geo. iii., c. made "standing mute in cases of felony equivalent to conviction." in it was enacted by and geo. iv., c. , "that in such cases a plea of not guilty should be entered for the person accused." the curious formal dialogue between the clerk and the prisoner was abolished that same year. something stronger than exhortation was now and again used before the obdurate prisoner was sentenced to pressing, thus at the old bailey in , the thumbs of one john durant were tied together with whipcord, which the executioner strung up hard and tight in presence of the court; he was promised the _peine forte et dure_ if this did not answer, but upon a little time being given him for reflection, he speedily made up his mind to plead not guilty. it is difficult to explain the distinction drawn between ordinary felony on the one hand and treason and misdemeanours on the other. perhaps the explanation is that the last, being much lighter offences, were never made the subject of trial by ordeal, and that treason being a crime endangering the very existence of the state, a sort of necessity compelled the judge to proceed in the most summary manner. no student of english history needs to be reminded that a trial for treason resulted almost as a matter of course in a conviction for treason. peers of the realm had many privileges, but they were not exempt from the consequences of standing mute. nor, as already noted, were women. perhaps it were unreasonable to expect a criticism of the system from contemporary judges or text writers; but what they did say was odd enough; they did not condemn pressing, but they highly extolled the clemency of the law which directed the court to reason with and admonish the accused before it submitted him to this dread penalty. i shall now give some examples of practice. fortunately (or unfortunately you may think as you read) we have at least one case recorded in great detail, though, curiously enough, it has escaped the notice of an authority so eminent as mr justice stephen. margaret clitherow was pressed to death at york on lady day, march th, , and the story thereof was written by john mush, secular priest, and her spiritual director. margaret's husband was a protestant, though his brother was a priest, and all his children appear to have been of the older faith. accused of harbouring jesuit and seminary priests, of hearing mass, and so on, she was committed to york castle, and in due time was arraigned in the common hall. in answer to the usual questions, she said that she would be tried "by god and by your own consciences," and refused to make any other answer. it was sheer obstinacy: she was a married woman, and she could have lost nothing by going to trial. but she coveted martyrdom, which everybody concerned appears, at first at any rate, to have been anxious to deny her. it was plainly intimated that if she would let herself be tried she would escape: "i think the country," said clinch, the senior judge, "cannot find you guilty upon the slender evidence." the proceedings were adjourned, and the same night "parson whigington, a puritan preacher," came and argued with her, apparently in the hope of persuading her to plead; but he failed to change her purpose; the next day she was brought back to the hall. something of a wrangle ensued between herself and clinch, and in the end the latter seemed on the point of pronouncing sentence. then whigington stood up and began to speak; "the murmuring and noise in the hall would not suffer him to be heard;" but he would not be put off, and "the judge commanded silence to hear him." he made a passionate appeal to the court ("did not perhaps god open the mouth of balaam's ass?" is the somewhat ungracious comment of father mush.) "my lord," said he, "take heed what you do. you sit here to do justice; this woman's case is touching life and death, you ought not, either by god's law or man's, to judge her to die upon the slender witness of a boy;" with much more to the same effect. clinch was at his wits' end, and went so far as to entreat the prisoner to plead in the proper form: "good woman, i pray you put yourself to the country. there is no evidence but a boy against you, and whatsoever they (the jury) do, yet we may show mercy afterwards." she was moved not a whit; and then rhodes, the other judge, broke in: "why stand we all day about this naughty, wilful woman?" yet once again she was entreated, but as vainly as before; it was evident that the law must take its course; and "then the judge bade the sheriff look to her, who pinioned her arms with a cord." she was carried back to prison through the crowd, of whom some said, "she received comfort from the holy ghost;" others, "that she was possessed of a merry devil." when her husband was told of her condemnation, "he fared like a man out of his wits, and wept so vehemently that the blood gushed out of his nose in great quantity." some of the council suggested that she was with child. there seems to have been some foundation for the remark, at any rate, clinch caught eagerly at the idea. "god defend she should die if she be with child," said he several times, when the sheriff asked for directions, and others of sterner mould were pressing for her despatch. kind-hearted whigington tried again and again to persuade her; and the lord mayor of york, who had married her mother ("a rich widow which died before this tragedy the summer last"), begged her on his knees, "with great show of sorrow and affection," to pronounce the words that had such strange efficacy. it was all in vain, so at last even whigington abandoned his attempt, and "after he had pitied her case awhile, he departed and came no more." her execution was fixed for friday, and the fact was notified to her the night before. in the early morning of her last day on earth she quietly talked the matter over with another woman. "i will procure," the woman said, "some friends to lay weight on you, that you may be quickly despatched from your pain." she answered her that it must not be. at eight the sheriffs came for her, and "she went barefoot and barelegged, her gown loose about her." the short street was crowded with people to whom she dealt forth alms. at the appointed place, one of the sheriffs, "abhorring the cruel fact, stood weeping at the door;" but the other, whose name was fawcett, was of harder stuff. he "commanded her to put off her apparel," whereupon she and the other woman "requested him, on their knees, that she might die in her smock, and that for the honour of womankind they would not see her naked." that could not be granted, but they were allowed to clothe her in a long habit of linen she had herself prepared for the occasion. she now lay down on the ground. on her face was a handkerchief. a door was laid upon her. "her hands she joined towards her face"; but fawcett said they must be bound, and bound they were to two posts, "so that her body and her arms made a perfect cross." they continued to vex the passing soul with vain words, but at last they put the weights on the door. in her intolerable anguish she gave but a single cry: "jesu! jesu! jesu! have mercy upon me!" then there was stillness; though the end was not yet. "she was in dying one quarter of an hour. a sharp stone as much as a man's fist put under her back, upon her was laid a quantity of seven or eight hundredweight to the least, which, breaking her ribs, caused them, to burst forth of the skin." it was now nine in the morning, but not till three of the afternoon were the braised remains taken from the press. stories of violence and cruelty serve not our purpose unless they illustrate some point, and i shall but refer to two other cases. major strangeways was arraigned in (under the commonwealth be it noted) for the murder of his brother-in-law. in presence of the coroner's jury he was made to take the corpse by the hand and touch its wounds, for it was supposed that, if he were guilty, these would bleed afresh. there was no bleeding, but this availed him nothing, and he was put on his trial at the old bailey in due course. he refused to plead, and made no secret of his motive; he foresaw conviction, and desired to prevent the forfeiture of his estate. he was ordered to undergo the _peine forte et dure_. the press was put on him angle-wise; it was enough to hurt, but not to kill, so the bystanders benevolently added their weight, and in ten minutes all was over. the dead body was then displayed to the public. again, in , a man named burnworth was arraigned at kingston for murder. at first he refused to plead, but after being pressed for an hour and three-quarters with four hundredweight of iron, he yielded. he was carried back to the dock, said he was not guilty, and was tried, convicted, and hanged. there was at least one case in the reign of george ii.--but enough of such horrors. a passage in shakespeare fines and recoveries "is this the fine of his fines, and the recovery of his recoveries, to have his fine pate full of fine dust? will his vouchers vouch him no more of his purchases, and double ones too, than the length and breadth of a pair of indentures?" thus the prince of denmark moralising in the graveyard scene in hamlet over the skull of a supposed lawyer: with more to the same effect, all showing that shakespeare had a knowledge of law terms remarkable in a layman, and that he used them with curious precision. in the huge body of shakespearian literature there are special works (one by lord chancellor campbell) on the fact, which has been used to buttress up the baconian authorship theory (indeed, it is the only positive fact at all in point). again, it has been conjectured that the dramatist spent some time in a lawyer's office, and that phrases from the deeds he engrossed stuck in his memory. it is far more likely that, being the man of his age he was, he would read in and round the law as well as much else for its own sake, and that fines and recoveries were so odd in themselves, and so excellently illustrative of english history and procedure, that they fairly took his mighty fancy. recoveries were already some two hundred years old in his time, and, to judge from the tone of the passage, people must even then have held them in derision. but they were to last full two hundred years more; for not till did they vanish from the scene. recoveries were methods of disentailing an estate by means of a complicated series of fictions. they arose in this way:--before , when land was given to a man and the heirs of his body, the judges ruled that, the moment a son was born, the father held the estate as a simple freehold, which he could sell or make away with very much as he chose. the great landowners were ill-content at this; they meant their tenants to enjoy their estates only as long as they rendered useful service in return, and if issue failed a man, they thought the land should revert to his lord on his death. hence in that year an act procured by their influence, called _de donis conditionalibus_, or the statute of westminster the second ( ed. i., c. ), created the estate tail (_i.e._ _taillé_, or restricted). it provided that land given to a man and his heirs as above, reverted to the original donor on failure of the donee's issue. blackstone waxes eloquent over the evils that ensued. children declined obedience to a father who could not disinherit; farmers lost their leases, which had no force against the heir; and creditors were defrauded of their debts, which constituted no charge on the land, nay, treasons were fostered, insomuch as the traitor's interest lapsing at his death, nothing was left for the king to seize. yet it was not till the reign of edward iv. that a device was found to evade the statute. _taltarum's case_ was decided in . it is loosely said that this established the validity of recoveries, but they were in use some time before, and sir frederick pollock will have it that it was the oddity of the name which made a landmark of the decision. a recovery was a sort of friendly or fictitious action, whereby the estate was adjudged to an outsider, whose claim, though baseless--if one did not look beyond the four corners of the action--was acquiesced in by the nominal defendant. the mediæval lawyer was usually a priest, and he had found those entails grievous obstacles in the way of the church's aggrandisement. perhaps, too, as the country grew in wealth, so rigid a law of settlement bore hard on an ever-waxing commercial class. to repeal the statute seemed impossible, but the great landowners, while proof against force and impermeable to argument, were not hard to outwit. a legal complication passed their understanding; and this one, however brazen, had the patronage of many powerful interests. thus, and thus only, may the fact of their acquiescence be explained. and now let us trace out the steps in a common recovery with "double voucher." the judges had already made one preparatory breach in the law. a tenant in tail could dispose of his estate if he left other lands of the same value; for these his heirs held under the same conditions as the original property. the principle of this decision was ingeniously used as a lever to overthrow the system. suppose a, tenant in tail, had contracted to sell his land to b: he began by formally disposing of it to c, usually his attorney, and technically called "tenant to the _præcipe_," or writ. then b commenced an action in the common pleas against c to recover the estate in question, which, he asserted, had been wrongfully taken from him. c, instead of defending the action, "vouched to warranty" a: that is, he called in a to defend, on the ground that the said a had covenanted to support his title; but a, instead of defending the action, "vouched to warranty" d. this last, called the "common vouchee" (in the form in blackstone he appears as "jacob morland"), was always the "crier to the court," and for playing his part received the modest fee of fourpence on each recovery. at first he (jacob) made a great show at fight; he denied all b's statements, and "put himself upon the country:" _i.e._ he demanded that the case should go before a jury for trial. b then craved leave "to imparl" (_i.e._ to have a private conference with jacob), and the proceedings were solemnly adjourned. when they were resumed jacob was not to be found: "he hath (it was adjudged) departed in contempt of the court." evidently, or so it seemed, he had no answer to make. then b's claim was allowed; c was to have of the lands of a a quantity equal to what he had nominally lost; whilst a, in his turn, was to have the same remedy against jacob, who, having no means at all, cheerfully accepted much paper responsibility. then a writ was issued to the sheriff of the county wherein the lands were situate, directing him to give possession to b, whose title was constituted by a record of all the aforesaid transactions. as the centuries went by the proceedings became ever less substantial, the action was always commenced by the issue of a writ in the usual way, but most of the other steps were only taken on paper. sir frederick pollock says, that if the disentailer were a peer, a sergeant was actually briefed to move the court in the matter: also, one must note that lands held from the crown were never subject to this process (nor can they now be disentailed without a special act of parliament). by another barefaced fiction, colonial property might be disentailed in england. the deed roundly asserted that the island of antigua (or wherenot) lay in the parish of st mary, islington--the operation of this geographical miracle giving jurisdiction to the court of common pleas. one would suppose that something simpler might have served; but though laymen jeered, lawyers regarded these quaint formalities with strange reverence. my lord coke mentions with solemn reprobation a counsel named hoord who scoffed thereat in the house of lords, and whom a judge gravely rebuked as not worthy to be of the profession of the law, for that he "durst speak against common recoveries;" and as late as , thomas coventry, esq., of lincoln's inn, concludes his learned treatise on the subject with an eloquent if slightly confused protest against any change, "which could know no end but an apparent confusion, or clearing away a path for the access of some modern pretender to strip the ivy from the venerable oak of our boasted constitution, the only emblem that remains of its antiquity and endurance." and now for a word on fines. these were so called for that they made an end of a controversy. they were simpler and even more ancient than recoveries. a fictitious action was begun by the purchaser against the vendor of an estate, wherein the latter soon gave in: the case was compromised, a fine was paid to the crown, upon the court giving its consent to this termination of the proceedings, and the record thereof became the purchaser's title. they were likewise used to bar entails, though they were not so effectual as recoveries. one of the first acts of the reform parliament of was the statute for the abolition of fines and recoveries. it was a mere question of procedure, for the law itself remained unaltered: but disentailment was effected by the enrolment of a deed in chancery. and now the dust lies thick on shelves of text-books--a whole system of learning, full of intricate details, the creation of centuries of perverse ingenuity. and the land-owners? these, too, long since availed themselves of the dark and subtle devices of the conveyancer. sir orlando bridgman, a great lawyer of the commonwealth, and finally chief justice of the common pleas under charles ii., invented and perfected the system of family settlements which to-day secures the secular interests of our great historic houses, as well as, if less directly than, any enactment could do. the custom of the manor has chance or necessity ever opened to you the charter-chest of the respectable solicitor in some country town? then, among his records, you have noted an interminable series of parchment volumes--very thick, very closely written, some centuries old, and one in current use. these are the court-rolls of the manor of wherenot. if you can spell out the beautifully written mediæval characters, you are sure to light on many a quaint record of by-gone folk and their ways, for, better than aught else, the manor and its muniments preserve for us the english past. manors, they used to say, arose in this fashion. a great lord obtained a piece of land from the king; part he disposed of to tenants who held of him in freehold (this sub-infeudation was stopped by the statute _quia emptores_ in ); the rest was his domain, on part of which he built the manor house, another part was cultivated by villeins, then the cotters had dwellings with portions of land, and the residue was waste, where the folk of the manor pastured their cattle, gathered fuel, and made their ways. sometimes these villeins were slaves, but each had his patch of soil, wherefor he rendered some servile office to his lord, ploughing his land, garnering his crops, or such like. the business of the manor was transacted in two courts, the court baron and the customary court. the first was attended by the freeholders, who themselves constituted the court; the second by the villeins, who merely hearkened to and witnessed the doings of the lord or his steward. when a villein died, the fact that the new tenant had such and such a field on condition of rendering so many days' labour yearly was noted in the records or roll of the customary court, and this roll, or a copy of it, becoming his title, he was dubbed a copyholder. in theory he was a mere tenant at the will of the lord, but time fettered the lord's will, until the principle was evolved that it must be exercised according to the custom of the manor, for "custom" as lord coke put it, "is the life of the manor," and so it came about that the holder had fixity of tenure while he did his service. his position steadily improved, the slave became free, the servile toil a money payment, and now the court agenda merely register changes of title. this account of the manor may serve for description, but does not represent the real origin, which has not yet been exactly ascertained. it was a fragment of old england, with a lord usually of norman race as head, and the relations between head and members elaborated and controlled by the theories and devices of the mediæval lawyer. as manorial law was custom, old local usages were preserved unaltered; thus, whilst the root idea of feudalism was that the eldest son should inherit his father's land, and the manor itself did so descend, within it an extraordinary diversity of usage obtained. by a custom similar to that of gavelkind (in kent), the copyholder's estate was sometimes parted equally among all his sons. in other places, borough-english prevailed, that is, the youngest son took everything, to the exclusion of his elder brothers; nay, by an odd application of the maxim "better late than never," a posthumous child ousted the brother already in possession; or, again, the widow or widower inherited. when the tenant died, the lord had a right to seize his best chattel (usually a beast), this was called a heriot, and it is yet here and there exacted. many customs are old saxon, many customs were invented, or at any rate twisted into fantastic rights from mere whim or a not very cleanly sense of humour, but here one must often merely accept the fact, for to try it by the rule of right reason were absurd. most manors were held of the crown, in return for services sometimes of the oddest character; thus, solomon de campis (or solomon at-field) had land in kent on condition that, "as often as our lord the king would cross the sea, the said solomon and his heirs should go along with him to hold his head on the sea, if it was needful;" and certain jurors solemnly present on their oath that "the aforesaid solomon fully performed the aforesaid service." our early kings provided against every possible contingency. one tenant enjoyed land by the service of holding the king's stirrup when he mounted his horse at cambridge castle. another must make _hastias_ in the king's kitchen on the day of his coronation. the glossaries are dumb as to this mysterious dish, though the learned darkly hint at haggis! or was it "a certain potage called the mess of _giron_," which, being enriched with lard, was called _maupygernon_--which last is possibly mediæval welsh for a haggis? thomas bardolf, who died, lord of addington, in edward iii., was pledged to compound three portions of this dainty dish against coronation day, and serve them up smoking hot, one to the king, one to his grace of canterbury, and the third "to whomsoever the king would." other manors were held on the tenure of presenting to the king a white young brach ("lady the brach" of _king lear_) with red ears; of delivering a hundred herrings baked in twenty pasties; of finding the king a penny for an oblation, whenever he came to hear mass at maplescamp, in kent: gifts of roses, falcons, capons (which last dainties your mediæval sovereign held in special favour), were abundant. but how to riddle this one? the manor of shrivenham, in berks, was held (_temp._ edward iii.) by the family of becket, whose head, whenever the king passed over a certain bridge in those parts, must present himself with two white capons, whereto he directed the royal attention in choice mediæval latin, "behold," he said, "my lord, these two capons, which you shall have another time, but not now," which pleasantry reminds one of the current vulgarism, "will you have it now, or wait till you get it?" the service of the dymocks, owners of scrivelsby in lincoln, as king's champions, and of the duke of norfolk, as earl marshal of england, curious enough in themselves, are too notorious for this crowded page. a few quaint tenures are of quite modern origin. thus the honour of woodstock (an honour was a lordship over several manors: so "waverley honour" in scott's great romance) is held by the tenure of presenting a banner each second of august at windsor castle; that being the anniversary of blenheim, fought in ; and on each th of june the duke of wellington must likewise send to the same place, for the estate of strathfieldsay, a tri-coloured flag to commemorate waterloo. the last century legal antiquary pricked up his ears at a fine scandal which he fondly imagined in connection with the manors of poyle and catteshill, both near guildford. their holders were bound to provide a certain number (twelve in one instance) of young women, called _meretrices_, for the service of the royal court. dry-as-dust shook his solemn head, invented pimp-tenure (a "peculiarly odious kind of tenure" he explained), and the forerunner of the man who writes to _the times_ (it was then to the _gentleman's magazine_) cracked some not particularly choice jokes on the subject. a wider knowledge restored the moral character of the king, his lords, and the much-slandered young women, whose decent dust may now repose in peace. in mediæval latin the word was widely used for the female servant general or special, and these were, it seems, neither more nor less than laundry-maids. manors of an early date were ofttimes held under other manors on equally whimsical conditions. a snowball at summer and a red rose at christmas are extravagantly picturesque. a hawk was a common rent; but in one case it was carried to the earl of huntingdon's house, by the yielder, attended by his wife, three boys, three horses, and three greyhounds; and these must be housed for forty days at the earl's expense, while his countess must give the lady her second best gown. again, the tenant of brindwood in essex, upon every change, must come with his wife, his man, and his maid, all a-horseback to the rectory, "with his hawke on his fist and his greyhound in his slip"; he blows three blasts with his horn, and then receives curious gifts, and thereafter departeth. the lord of the manor of essington, in stafford, must bring a goose every new year's day to the head manor-house at hilton. here he drives it about the fire, which jack of hilton blows furiously, and (one regrets to add) most improperly. but jack may be forgiven, for he is but "an image of brass about twelve inches high," whose description you read at length in old thomas blount, the great recorder of all these mad pranks. the holding of pusey in berks by the pusey horn, gifted, it is said, by king canute, is well-known. sir philip de somerville, knight, was bound to hunt and capture the earl of lancaster's _greese_ (wild swine) for my lord's larder upon st peter's day in august. this he did till holy-rood day, when he dined with the steward, and after dinner "he shall kiss the porter and depart." this same sir philip de somerville held the manor of whychenover at half terms from the earl on condition that there ever hung in his hall one bacon flitch to be assigned to a happy married couple yearly in lent, after a variety of ceremonies like those in the more famous case of dunmow: the disposal of the flitch there being likewise according to "the custom of the manor." in the customs that made up the inner life of the manor one finds a diversity too great for classification. however, those old english folk were a merry lot; with usages not sad nor savage, but having much sensible joy in good meat and drink. at baldock, in hertfordshire, the customary court was holden at dinner-time, whereto every baker and vintner within the bounds must send bread and ale which the steward and his jury "cam' to pree," and presently gave their verdict "if these be wholesome for man's body or no." to the manor of hutton conyers there was attached a great common, where many townships pastured their sheep; and the shepherd of each township "did fealty by bringing to the court a large apple pie, and a twopenny sweet cake." for refreshment, "furmity and mustard, well mixed in an earthen pot, is placed before the shepherds, which they sup with spoons provided by themselves, and if any forget his spoon then, for so the customary law wills it, he must lay him down upon his belly, and sup the furmity with his face to the pot or dish." and the custom further permits the bystanders "to dip his face into the furmity," to the great delight of all present. to finer issues is the money provided by magdalen college, oxford, for certain manors of theirs in hampshire, _pro mulieribus hockantibus_, as the dog latin of the college accounts hath it. on hock day, annually, "the women stop the ways with ropes, and pull passengers to them, desiring something to be laid out in pious uses": the men having hocked the women after the same fashion the day before. there are traces of this usage further afield than hampshire. not less jovial were the tenants of south malling, in kent, who were bound to pay scot-ale, which fund they agreeably expended in "drink with the bedel of the lord archbishop." the case of stamford, in lincoln, is noteworthy as showing the origin of one peculiar custom. in the time of king john, william, earl warren, was lord of the place. one day he saw from his castle wall "two bulls fighting for a cow in the castle meadow;" their bellowing attracted all the butcher's dogs in the place; and these, in company with a host of rag-tag and bobtail, chased one of the champions in and out the town till he went mad; all which so delighted earl warren, that he forthwith gifted the common to the butchers on condition that they provided a mad bull six weeks before christmas day, "for the continuance of that sport for ever." it is impossible even to conjecture the origin of other customs. in most manors, when a copy-holder died, his widow had in free-bench (or what the common law calls dower) the whole or part of his lands. there was one restriction: she must remain "sole and chaste." yet, if she forgot herself, her case was not altogether past praying for in the manor of enborne in berkshire. at the next customary court she appeared strangely mounted upon a black ram, her face to the tail, the which grasping in her hand, she recited, sure the merriest, maddest rhyme it ever entered into the heart of man to conceive-- "here i am riding upon a black ram"---- alas, that the rest must be silence! the _spectator_, greatly daring, gives it in full; but that was as far back as november st, . a like custom ruled the manor of kilmersdon, in somerset, where the doggerel, if briefer and blunter, is at least equally gross. and here one must refer to the _jus primæ noctis_, that lewd historic jest which, in england at any rate, was ever a sheer delusion. true that on the marriage of a villein's daughter a fine was paid to the lord, but this was not to spare her blushes, but as compensation to him for the loss of her services--inasmuch as she took the domicile of her husband. nay, the custom of the manor usually made for morality. there was a fine called child-wit exacted on the birth of an illegitimate child, sometimes from the infant's father, or, again, from the father of its mother. nay, in one or two places the unlucky lover forfeited all his goods and chattels. on the other hand a curious privilege attached to an oak in knoll wood in the manor of terley in staffordshire: "in case oath were made that the bastard was got within the umbrage or reach of its boughs," neither spiritual nor temporal power had ought to say, and the man got off scot free. the curious tenacity of the manorial custom is well shown in the case of pomber in hampshire: the annual court, in accordance with immemorial usage, must be held in the open air, but the inconvenience of this was obviated by an immediate adjournment of the proceedings to the nearest tavern. the records were not kept on parchment, but "on a piece of wood called a tally, about three feet long and an inch and a half square, furnished every day by the steward." in time these strange muniments became worm-eaten and illegible; and, as occupying much needed room, were thrown to the flames by the dozen. (it will be remembered that the old houses of parliament were set on fire and destroyed on the burning of the exchequer tallies, october .) some of the survivors were produced as evidence in a case heard at winchester, which fact provoked "a counsellor on the opposite side of the question" to dub it "a wooden cause." the obvious retort--that his was a wooden joke--seems lacking; but possibly this gem of legal humour emanated from the bench: how often one has seen its like! still stranger was the lawless court of the honour of raleigh: it was held in the darkness of cockcrow; the steward and the suitors (i.e., those bound to attend the court) mumbled their words in scarce audible fashion; candles, pens, ink, were all forbidden; for, as the authorities vaguely put it, "they supply that office with a coal." to ensure a punctual attendance, the suitor "forfeits to his lord double his rent every hour he is absent." the learned camden affirms it was all to punish the aboriginal tenants for a conspiracy hatched in the darkness of the night; again he sees in it a remnant of an old teutonic custom; and in the end you suspect that he knows as little as yourself. then there was the white bull which the tenants of the monks of bury st edmunds were bound by their leases to provide, that childless women might present it to the shrine of the martyred king of east anglia; there was the fine called "thistletake," which the owner of beasts crossing the common, and snatching at the "symbol dear," must pay to the lord of the manor of halton; there are the "three clove-gillieflowers" which the tenants of hame in surrey shall render at the king's coronation; there are all sorts of minute details as to house-bote and fire-bote, and common of piscary and turbary. one more custom and we have done. in the time of richard the lion-heart, randal blundeville, earl of chester, was on one occasion sore pressed by the flintshire welsh. he summoned to his aid his constable of cheshire, one roger lacy, "for his fierceness surnamed hell." it was fair-time at chester, and roger, putting himself at the head of the motley crowd marched off to his relief. the welsh heard, saw, and bolted, and the grateful earl there and then promulgated a charter granting to roger and his heirs for ever, "power over all fiddlers, lechers, light ladies (the charter has a briefer and stronger term), and cobblers in chester." under henry vii. we find the then grantee exacting from the minstrels (_inter alia_) "four flagons of wine and a lance," whilst each of the aforesaid ladies must pay fourpence on the feast of st john the baptist. under elizabeth, various acts were aimed at rogues, vagabonds, and sturdy beggars, but always with a saving provision as to this chester jurisdiction, and in later times the vagrant act ( george ii., cap. ) had a like reservation. deodands at one time or other you have looked, one supposes, into that huge collection of curiosities and horrors known as the state trials. you may possibly have noted the form of indictment in the murder cases; and if so, one odd detail must have impressed you. having set forth the weapon used by the murderer, the document invariably goes on to estimate its money value: for, having been instrumental in taking human life, it was forfeit to the crown, and it or its price had to be duly accounted for. it was called a deodand, but the name was applied to many things besides arms used with malice aforethought. thus, a man died by misadventure: then was the material cause active or passive? for instance, his end might come because a tree fell on him, or because he fell from a tree, in either case the wood was a deodand, and so forfeited. the name is from _deo dandum_--a thing that must be offered to god, and this because in early mediæval times the church or the poor had the ultimate benefit. for the origin of the custom one must go far back. in hebrew, greek, and roman legislation, the physical object that caused the loss of human life was held accursed, and hence was destroyed or forfeited. in england a thing became a deodand only when the coroner's jury (or more rarely some other authority) had found it the cause of death; which death, moreover, must happen within a year and a day of the accident. if it did, the thing was seized, no matter where it was, or who had it. in default of delivery the township was liable, and it was the sheriff's duty to get the value therefrom. if a man had _per infortunium_ (or without blame) used the article, the jury found that as a fact, and he was acquitted, or rather pardoned; but in strict law his goods were forfeit as late as . and not everything causing death was a deodand. if a man fell into the water, was carried under a mill-wheel, and perished, the wheel was forfeit but not the mill. the distinction was sometimes difficult. here are two actual examples. a cart and a waggon came into collision; the man in the cart was pitched out under the waggon-wheels and died. the two vehicles, all they held, the horses that drew them, were adjudged deodands, "because they all moved _ad mortem_." again, a ship was hauled up for repairs, toppled over on a shipwright at work, and was declared forfeit. your mediæval lawyer was nothing if not subtle, and he soon raised doubts enough to gravel a schoolman. he questioned if things fixed to the freehold could become deodands. suppose a man were ringing a church bell, and the rope, getting twisted round his windpipe in some strange fashion, choked the life out of him: how then? the rope seemed past praying for, but what about the bell? the learned differed, yet all agreed that if the timber holding the bell got loose, and came crashing down on the sexton, the royal treasury, of clear right, pounced on rope, and bell, and timber. how furiously, with what a wealth of legal learning and invention, one fancies the utter barristers must have "mooted" those fascinating points after supper in the halls of their ancient inns! the decisions were hard to reconcile. thus, in edward the third's time, it was held that if a man fall to his death from his horse against the trunk of a tree, the horse is forfeit, but not the tree. but in the same reign a distinction was drawn. one william daventry, a servant to john blaburgh, engaged in watering a horse, was grievously hurt. he was carried to his master's house "_apud fleet street in suburbio london_", and there at even he died. at first the horse was adjudged a deodand, but blaburgh got the inquisition quashed on the ground that the horse had not thrown his rider. again, if a lad under fourteen fell from a cart and was killed, there was no deodand: as some opined, because the masses might be dispensed with, in the case of one presumed sinless from his tender age, and the proper end of deodands was to procure masses; but others urged it was "because he was not of discretion to look to himself." the further question--what possible difference this could make--was not raised; for even a mediæval lawyer's speculation must stop somewhere. but how if the slayer were a lad? a cornish case, _temp._ , supplies an answer. jack of burton, a boy of twelve, had a mind to draw the bow. he rigged up a target in a house, and shot thereat from the outside. one arrow missed the mark, and, glancing off a hook, transfixed a woman called rose. rose died forthwith, and jack fled in horror. it was held that _le hoke_ was a deodand, but that the boy, on account of his age, was no whit to blame, and (with a touch of kindliness) a proclamation was made far and wide that he might return in safety. in this connection one recalls the awkward misadventure of abbot, archbishop of canterbury, in the reign of james i., who, being out a-hunting, killed, by pure accident, peter hawkins, his keeper. he had many enemies, and all sorts of ecclesiastical and temporal penalties were threatened: at least, it was said, let all his goods be confiscate. but the king turned a deaf ear to these suggestions: he comforted the unlucky prelate with kindly words, and a full pardon, dated th september , removed all possible danger from his reverend person. if a man met his death afloat, there was deodand or no deodand as the water was fresh or salt, for these rules had no force on the high seas or in tidal rivers: because, said some, "there were so many deaths at sea." "nay," said others, "how forfeit the ocean?" "but at least," it was replied, "one could take the ship"----but here again speculation must stop. although deodands first went to the crown, and were properly applied to pious or charitable uses, yet they were often granted to lords of manors: so often, indeed, that one of the few references to them in english literature--a couplet in samuel butler's _hudibras_--treats this as the general rule. "for love should, like a deodand, still fall to the owner of the land." this owner was not seldom exacting, and his claim was met in characteristic english fashion. the coroner's jury returned the value of the deodand at next to nothing, _e.g._, "a horse, value three shillings," and the court of "king's bench" refused to disturb the finding. hence one absurdity balanced another, and the doctrine was long defended. in , joseph chitty, in his standard work on _prerogatives_, maintains that "the forfeiture is rational so far as it strengthens the natural sensation of the mind at the sudden destruction of human life." but in later years these mediæval ghosts began to walk again to some purpose. in the london and birmingham railway company was amerced in £ as a deodand! railway directors were no doubt convinced that and vic., c. , which in made an end of the whole business, came not a day too soon. had the law of twenty years before that been restored, there might have been some warrant for stripping those same directors of all their property after each railway accident, and one shudders to think of the consequences had the coroner's jury found the plant used not _per infortunium_. one thing must be added, many held that the instruments of a murder, though forfeited to the crown, were not, properly speaking, deodands, and they quoted as illustration the curious case of one rempston, who forced his boat's crew to row under london bridge _invitis corum dentibus_ in dangerous weather. he was thrown out and drowned, and the jury, it was said, brought in a verdict of _felo de se_, to save the boat from forfeiture. but the weight of authority was emphatically against this view. the law of the forest "a stretch of land, thick planted with trees;" so you picture a forest to yourself, but old english law held otherwise. there were miles of woodland that were not forest at all, and acres of pasture that were. john manwood, the elizabethan lawyer, still our chief authority on the subject, defines it as "a certain territory of woody grounds and fruitful pastures, privileged for wild beasts and fowls of forest, chase, and warren, to rest and abide in under the safe protection of the king." such a preserve was exactly delimited, and might contain villages, churches, and so forth, within its bounds, as the new forest does to-day. the king had certain rights over all, yet it was mainly private property; nay, there might be spaces in it, but not of it,--within its bounds, but not within its regard, as the phrase ran,--and so exempt from its peculiar laws. manwood gives a picturesque, though quite erroneous derivation of the term: it was _for rest_ of the wild beasts; but a sounder etymology traces the word to _foris_ (= outside), for that it was outside the jurisdiction of the common law, and had codes, courts, and officers of its own. the whole business was for centuries alike insult and wrong to the commons of england. hunting was not merely the chief amusement of our early kings: it was a necessary pursuit for the keeping down of the wild beasts then a real danger to the fields and their cultivators. the forest charter of canute the dane (dated ) is a myth; but it is certain that, before the conquest, the sovereign had a peculiar--howbeit, an undefined--property in the woodland. the conqueror, who, according to the saxon chronicle, loved the tall deer as if he had been their father, devastated far and wide to make the new forest; and he and his immediate successors punished hurt done to the deer with loss of life or limb. the great charter contained provisions against this odious abuse of power, and under henry iii. a special charter of the forest enacted that no man should lose life or limb for killing deer, at the same time that it disafforested (_i.e._, removed from the forest to which they had been improperly joined) vast tracts of country. after the new there was but one other forest made in england, that was the land round hampton court, afforested under henry viii. by act of parliament. an attempt to revive royal rights over the woodland hastened the fall of charles the first, and then the commonwealth gave the forest system its death-blow, though it was not till the time of george iii. that the great mass of enactments was formally repealed. a court of swainmote lingers in the new forest and elsewhere, and its officials, called verderers, albeit shorn of their ancient power and splendour, do their quaint antics still; but by an odd, though happily not singular inversion, those old popular wrongs are now become popular privileges; epping forest, for instance, could never have become a public park but for the crown rights, and these same rights over the woodlands throughout the country now yield an income which more than covers the cost of the whole civil list. had the crown looked more sharply to its own, the profit to ourselves had been still vaster. the forest laws, however complex in detail, were all inspired by one consistent idea--the preservation, to wit, of the king's venison. even under edward i.'s comparatively humane rule the verderer held an inquest upon a deer found dead in the regard, just as the coroner did upon a man's body, and the jury found how the creature came to its end. the very arrows gleaned there were entered in the verderer's role. the freeholder within that charmed ground might not fell his own timber without leave, lest he should spoil the _cover_: nor could he turn out his goats to browse, for they would taint the pasture; whilst he must feed his sheep in moderation, else he committed the grievous offence of _surcharging_ the forest. the forest had a huge staff of officers. first was a multitude of subordinates; foresters--who, if they kept ale-houses in the regard, and encouraged folk to drink therein, committed a special crime called _scotale_--agistors, woodwards, keepers, verminers, sub-verminers, and what not. these haled trespassers before the court of attachments, which was held every forty days. in command of them were the verderers, constituting, with representatives from the forest townships, the court of swainmote, which met thrice a year for (_inter alia_) the trial of the more important offences. judgment on its findings was given at the court of justice seat, held but once in the three years, under the presidency of a lord chief justice in eyre of the forest. there were but two--one for the north, the other for the south of the trent; and inasmuch as this officer was commonly some great noble--"a man," says my lord coke, with a touch of irony, "of greater dignity than of knowledge of the laws of the forest"--some skilled professional folk were joined with him in the commission. the last court of justice seat was held in by the earl of oxford. it was a mere form: the last but one (in ) had created a fine pother by its exactions. offences were either trespasses _in vert_ or trespasses _in venison_. the vert (= green) was of course the cover; and the destruction thereof was called _waste_, while _assart_ was stubbling it up to make ploughland: and _purpestre_ (a most grievous business) was building on or enclosing part of the forest. (as late as the reign of charles i., sir sampson darnell was heavily fined for erecting a windmill on his own ground in windsor chase). moreover, vert might be _over vert_ or _hault-bois_, or it might be _nether-vert_ or _sous-bois_, according as it was underwood or not; and in either case it was _special vert_ if it bore fruit, such as pears, crabs, hips, and haws, whereon the deer might feed. venison, as lawyers understood it, was composed of beasts of forest--to wit, the hart, the hind, the hare, the boar, and the wolf--and beasts of chase. a chase, which was like a park, but was not enclosed, might be held by a subject; but every forest was likewise a chase and a warren, and the beasts of chase were the buck, the doe, the martern, and the roe. these were described with wondrous detail. the hart--"the most stately beast which goeth on the earth, having as it were a majesty both in its gait and countenance"--was in his first year a calf, in his second a broket, in his third a spayad, in his fourth a staggard, in his fifth a stag, and in his sixth a hart. if he escaped the pursuit of king or queen he became a hart royal, which no subject might molest. in , richard coeur-de-lion hunted a noble beast out of the forest of sherwood into barnsdale in yorkshire, and there losing him, made proclamation "that no person should kill, hunt, or chase the said hart, but that he might safely return into the forest again." an animal thus honoured was called a hart royal proclaimed, and in the st of king henry vii., a man was indicted for taking so precious a life, but the case apparently went off for want of technical proof of proclamation. your precise woodman talked of a bevy of roes, a richesse of marterns, a lease of bucks. he said that a hart harboureth, whilst a buck lodgeth, and a hare was seated. he dislodged the buck, but he started the hare. he would tell you that the hart belloweth, the buck groaneth, the boar freameth; and whilst the hart had a tail, the roe had a single, the boar a wreath, and the fox a bush (not brush be it noted) or holy water sprinkle. their amours (_e.g._ a fox went to clicketing), their young, their very excrements were dignified in a long array of special terms, the divisions and subdivisions of the deers' antlers being enough of themselves to gravel the tyro in woodcraft. the peace of those precious animals was elaborately safeguarded, and it was specially forbidden "to haunt the forest" during the _fence moneth_, which was fifteen days before and after midsummer. most forests were surrounded by purlieus, that is, territory which had been disafforested. officers called rangers patrolled this debateable territory to drive back the errant deer, and whilst the purlieu-man (namely, the freeholder therein) might hunt on his own lands, he must call off his dogs if the beast once touched the forest. and every three years there was a special drift of the forest, which was a sort of census of the venison. a man taken _with the manner_ (main ouverte), that is, in the act of doing for the deer, was attached without bail. the offender might thus be caught red-handed in four ways:--( ) in _dog-draw_ he was chasing a wounded beast with hounds; ( ) in _stable-stand_ he was drawing his bow in ambush; ( ) in _back-bare_ he was carrying off his quarry; ( ) in _bloudy-hand_ he bore the red marks of his spoil. divers statutes put a yet keener edge upon the common law, as that under henry vii., whereby hunting in the forest at night with painted vizards was made a felony. and what of the dogs? the forest freeholders might keep mastiffs for the protection of home and homestead; but a court of regards was held every three years for their lawing or expeditation. thereat your mastiff was made to place one of his paws upon a billet of wood, "then one with a mallet, setting a chisel of three inches broad upon the three claws of his forefoot, at one blow doth smite them clean off." other dogs of any size were summarily banished the precincts. royalty was ever jealous of these rights. a fee-buck and a fee-doe were allotted to every verderer yearly (but these were but wages in kind); and every lord of parliament going or returning through the forest, on summons from the king, might take one or two beasts, but if no forester was at hand, he must sound his horn, lest the kill might seem done in secret. but all the king's horses and all the king's men could not quench english love of sport. robin hood and his merry band are but the glorified types of a very multitude who chased the deer night and day, for the forest stretched mile after mile over hill and dale, and the tall deer were fair to look on, and the taste of their flesh was as sweet to the wanderer and the outlaw as to the noble or the monarch; and the law, albeit cruel, was weak, and a touch of danger but gave zest to the pursuit. to take a later instance, was not shakespeare himself the most illustrious of poachers? not on such rovers but on the poor hard-working folk within the regard did the forest laws press with cruel weight, and yet old manwood highly extols their sweet reasonableness--"the king," he says, "wearied with his anxious care for the weal of his subjects, is given by law these forests that he may delight his eye at sight of the vert, and mind and body by the hunting of the wild beasts," and so he finds it in his heart to regret that in his day the forests were somewhat diminished. and since the sovereign's good is now the peoples' good, we may agree with him, though not for the same reason. par nobile fratrum john doe and richard roe old english law being full of fictions, had pressing need ever and anon of imaginary characters to play imaginary parts. sometimes a name was picked at random from the street, and smith, you hear without surprise, was in great request, or, as those shadows came and went in couples, you find richard smith as often as not paired with william styles. but your ancient scribe lusted after quaintness. he loved a jingle, so names like john den and richard fen--rare in actual life--peopled his parchment, and strove for mastery in his mock combats. but his prime favourites were doe and roe, nor would he raise den or fen or any other ghost, excepting he had need of more than two. here is a simple instance of their use. in early times a man who commenced an action had to give surety that he would go on with it; nowadays, if he discontinue, he must pay the costs of the other side, but costs, incredible as it may sound, were not always the necessary shadow, or perhaps the substance, of law; and hence the need for the pledge. under edward iii. the practice went out of use, but the form of it, as legal forms are apt to do, lingered on for centuries in this style:-- _pledges of prosecution_ { john doe. { richard roe. in the old action of ejectment the pair were most active. so strange were their gambols that even the lay world was impressed. in the early years of victoria john and richard were common butts of popular satire. nothing seemed more gratuitous, more idly superfluous; but, turn to their history, and you find how important and how serviceable were the parts they once played. one must begin far back. in early feudal times the cultivator of another's land was either a serf or a person of no importance, holding at his lord's will. the tenant's position improved with the times, leases were granted, and if their conditions were broken, a writ of covenant, as the form of action was called, secured him in possession, and gave him damages for his wrongs. but this action lay, as the technical term is, between the original parties alone; so that if he were turned out by a complete stranger, or by a person claiming through another grant of the same landlord, his remedy was merely pecuniary. in the time of henry iii. a writ was invented giving him full protection against anyone interfering under colour of another lease from his lord: but the case of an ouster (or dispossession) by an utter stranger was not adequately provided for until the beginning of edward iii.'s reign, when the writ of _ejectio firmæ_, or ejectment, was adapted from the proceeding in trespass. it called upon the wrong-doer of every species to show why, "with force and arms," he had entered on and taken possession of the plaintiff's land. but, again, the result was only money damages: so that he was driven for relief to the equitable jurisdiction of the chancellor, who, by injunctions and so forth, secured him in, or restored him to, possession of the very land itself. presently the common law courts took it ill that so much of their legitimate business should go elsewhere; and, at the end of the fifteenth century, they allowed the term itself, as well as damages for the ouster, to be recovered under a writ of ejectment, and this remedy was held proper against every species of wrong-doer. and if, not the tenant, but the landlord himself, were deprived of his property? or, if anyone not in possession claimed a piece of land as his freehold? these forms of procedure were not available, since they were personal actions, and a claimant to the freehold must proceed by a real action. these last were in early times the most important of all. but their forms were numerous and varied (the assizes of _morte d'ancestor_ and _novel disseisin_, as they were called in old law french, were two of the best known), and their cumbersome and complicated technicalities were cause of much expense, irritation, and delay. at last it occurred to some ingenious, though forgotten, jurist so to twist this writ of ejectment, which had all the last improvements, as to make it available in an action for the recovery of the freehold. that was done in this way. a. was (let us suppose) the legal and rightful owner of an estate occupied in fact by b.; he entered on the land with c., to whom he, then and there, signed, sealed, and delivered a lease for the property in question; to them so engaged entered b., attracted by their manoeuvring, and speedily kicked both into the boundary ditch. here were all the materials for the action of ejectment, since c. might truly declare himself dispossessed _vi et armis_ by b. from land whereof he held a lease from a. in this action the main point evidently was: had a. a right to grant c. the lease? in other words, was a. the real owner of the land? if the jury said "yes," then judgment for possession followed for c., who, being merely the nominee of a., forthwith passed the property over to him. improvements were speedily suggested. actual ejection was like to prove unpleasant, so a. and c., instead of ostentatiously soliciting b.'s attention, took with them a confederate d., who, in a friendly and affable manner, performed the function of a chucker-out, and this casual ejector (as they named him) was made nominal defendant in the action wherein c. was nominal plaintiff. lest b. should be condemned unheard, it was provided that the casual ejector must give him notice of the proceedings, whereupon he was let in to defend in place of d. this device was a brilliant practical success. real actions pure and simple fell speedily into disuse, though it was not till that, with a few exceptions further tampered with in , they were legally abolished. the commonwealth was a time of legal as well as political change. the lord protector had, with quaint emphasis, described the court of chancery as "an ungodly jumble," and rolle, his lord chief justice of the upper bench, before and since known as the king's bench, laid violent hands on the action of ejectment. "what," urged he in effect, "was the use of actual entry, lease and ouster? let all be held as done: so that the court may apply itself at once to the real question at issue." finally, the action was in name _doe_ against _roe_, but the writ as a mere form was suppressed, and the first step was the declaration and notice to appear, both served on the real defendant or his tenant. the declaration stated that the land in question had been demised by a. (the real claimant) to john doe; but that richard roe had entered thereon by force and arms and ejected him, "to the great damage of the said john doe, and against the peace of our lord the now king;" and that therefore he brought this action. to this there was appended a letter, signed "your loving friend richard roe," addressed to b., the real defendant, and informing him that the sender, hearing that he claimed the land, must now tell him that he (richard), being sued "as a casual ejector only, and having no title to the same," he advised him (b.) to enter appearance as defendant, "otherwise i shall suffer judgment therein to be entered against me by default, and you will be turned out of possession." now, to succeed in his action, the plaintiff must clearly prove four things--title, lease, entry, and ouster; and the three last he could not do, since they never happened. this little difficulty was got over by a consent rule: the courts allowed b. to take richard roe's place as defendant, only on condition that he would confess those three things to have happened which never did happen: whereupon the real question of title alone remained. so strangely had this action varied from its first use--which was to recover damages for wrongful possession of land--that in the result these were nominally estimated at a shilling; and if a. really wished to make b. disgorge the spoils of possession, he sued him again for mesne profits. although the action was nominally "_doe_ against _roe_," the cases are usually cited as "_doe on the demise of a._" (the real plaintiff) "against b." (the real defendant), and whilst john and richard were the favourite styles, we have occasionally "_good title_ against _bad title_": a comically impudent begging of the question at issue. if the outside public mocked these venerable figures, _par nobile fratrum_, the suitor did so at his peril. a certain unitt (_temp._ george i.), being served with a copy of a declaration in ejectment, "pronounced contemptuous words on the delivery of it," and the judges in solemn conclave held that he was in contempt, and was deserving of punishment therefor. so the masque of shadows went on till , when the common law procedure act removed an obstacle which lawyers had walked round for centuries, and consigned john doe and richard roe to that limbo where so much legal rubbish lies buried under ever-thickening clouds of dust. sanctuary your old-world lawyer was an ardent, if uncritical, antiquary. he began at the beginning, and where facts ran short his fancy filled up the blank. in discussing sanctuary he started with the biblical cities of refuge. he had something to say of romulus and the foundation of rome. geoffrey of monmouth supplied him with the name of a sovereign--dunwallo molmutius to wit--who flourished in druidical britain (b.c. it was said), under whom cities and even ploughs were arks of refuge for the despairing fugitive. it might have been objected that the ancient britons had neither ploughs nor cities; but such criticism was not yet in the land. we touch firmer ground in the centuries immediately preceding the conquest. in early english legislation churches safeguarded the criminal from hasty vengeance, and so allowed time to settle the money compensation payable for his offence. sanctuary was among the privileges that the conqueror conferred upon his foundation of battle abbey--one of many cases wherefrom the norman lawyers built up a system for mediæval england. that system was not always consistent or clear, but its main outlines were as follows:--sanctuaries were of two kinds--general, as all churches and churchyards; special, as st martin's le grand and westminster. no doubt these last had originally also a religious sanction. such places were twice consecrate: pope and king, the canon and the common law united in their favour. they protected felons, but not those guilty of sacrilege or (some held) of treason. they were not properly for debtors, whose reception was nevertheless justified by an ingenious quibble. imprisonment might endanger life, and therefore (so the learned argued) the runaway debtor must be received. a man took sanctuary thus--having stricken (let us say) his fellow, he fled to the cathedral and knocked (with how trembling a hand!) at the door of the galilee. over the north porch were two chambers where watchers abode night and day. on the instant the door swung open, and had scarce closed behind the fugitive when the galilee bell proclaimed to the town that another life was safe from them that hunted. then the prior assigned him a gown of black cloth marked on the left shoulder with the yellow cross of st cuthbert, and therewith a narrow space where he might lie secure of life, though ill at ease. so it was at durham. at westminster the sanctuary man bore the cross keys for a badge, and walked in doleful state before the abbot at procession times; and there were, no doubt, countless variations. a phrase of the time reveals how close the watch was now and again. under edward ii. it was complained that the sanctuary man might not remove so much as a step beyond the precincts, _causâ superflui deponendi_, without being seized and haled to prison. he was fed and lodged in some rough sort for forty days, within which time he must confess his crime before the coroner at the churchyard gate, and so constitute himself the king's felon. then he swore to abjure the realm. the coroner assigned him a port of embarcation (chosen by himself), whither he must hasten with bare head, carrying in his hand a cross, not departing, save in direst need, from the king's highway. he might tarry on the shore but a single ebb and flow of the tide, unless it were impossible to come by a ship, in which case he must wade up to his knees in the sea every day. he was thus protected for another forty days, when, if he could not find passage, he returned whence he came, to try his luck elsewhere. he who refused to confess and abjure was not driven forth, but if, after much spiritual admonition, he still refused to conform, he had neither meat nor drink given him, and so was ended, if not mended. a man unjustly deprived of sanctuary could plead the right before his judges. it was a declinatory plea, and must be urged before he answered as to his guilt or innocence; it availed him nothing to do so after, for he was strung up forthwith. this system, however harsh, had two very plain advantages. it was a short and easy method with a rascal, and it powerfully made for scientific accuracy in pleading. if a fugitive were caught and condemned ere he "took westminster," as the town phrase ran, it was no advantage for him to escape on the way to execution, inasmuch as he was promptly haled forth to the gallows. a curious case in the eighth of edward ii. perplexed the ancient student. a woman was condemned to death, but a jury of matrons had no doubt as to her condition, and she was reprieved. she escaped to sanctuary before the arrival of the hangman's cart, and when the gaoler dragged her out, the judges bade him put her back again, whereat the learned shook their heads, opining that hard cases make bad law, and the jade should have swung like other folk. on the whole the privilege was strictly respected. for instance, the king's justices were wont to hold session in st martin's gate. they sat on the very border. the accused were placed on the other side of the street; a channel ran between them and their judges, and if they once got across _that_ they claimed sanctuary, and all proceedings against them were annulled. and one sees the reason why perkin warbeck took such care "to squint one eye upon the crown and the other on the sanctuary" (as bacon curiously phrases it); yet the great case of beckett is there to show that nothing was absolutely sacred in these violent years. nor does it stand alone. in , jeffrey, archbishop of york, and son of henry ii., was seized at the altar of st martin's priory, dover; and dragged, episcopal robes and all, through dirty streets to the castle: this, too, by order of william longchamp, bishop of ely, and papal legate. in , archbishop sudbury complained in parliament that one robert hawley had been slain at the high altar even while the priest was saying a mass. it was rumoured indeed that one thurstian, a knight, chasing a sanctuary man with drawn sword, was of a sudden stricken with grievous ailments. but this and other like stories did not deter the citizens of london (_circa_ ) from assembling at supper time in a great crowd, and dragging forth a soldier who had escaped on the way from newgate to guildhall, where he was being taken for trial. in another case (_temp._ henry vi.), where a youth had taken sanctuary after having foully slain a kind mistress, the good women about st martin's broke in and despatched him with their distaffs. of those who took sanctuary to good purpose the most famous was elizabeth, widow of edward iv., who, in , registered herself a sanctuary woman in westminster, and there sat, in sir thomas more's phrase, "alow in the rushes." but you have read the tragic story in shakespeare. and in a later age "beastly skelton" (as pope will have him), from that same westminster safely lampooned the mighty wolsey, though for that he needs must live and die there. to catalogue the evils of the sanctuary system were to show lack of historical sympathy, nay, even of humour. the former days were not as these; it had its place with the shrine and the pilgrimage, the knight errant, and the trial by ordeal in the strange economy of a vanished world. as the times grew modern its practical inconvenience was felt for the first time. yet the occasion of the first assault on the privilege of sanctuary was one where the benefits were conspicuous, and the assailant had the worst of motives. it was the case just noted of edward iv.'s widow; she had the young duke of york as yet safe with her. her enemies were at a loss for the moment, and buckingham, then the sworn ally of richard of gloucester, took occasion in the privy council to attack her place of refuge. "there were two chief plague-spots in london," he snarled: "one at the elbows of the city (westminster), the other in the very bowels thereof (st martin's le grand). these places were the refuge of theeves, murtherers, and malitious, heynous traytors! nay," he added, "men's wives ran hither with their husbands' plate, and say they dare not abide their husbands for beating," with more to the same effect. had not elizabeth yielded, westminster might have witnessed a violation as affecting as that of canterbury. under henry viii. the old order was broken up, and sanctuary law, like much else, was changed and amended again and again. first, all special places save wells, westminster, and six others, lost the privilege. divers classes of criminals --as traitors, and pirates (and afterwards) egyptians--were formally rendered incapable of its enjoyment. before the sanctuary man abjured the realm he was burned on the crown of the thumb "with the signe of an a," and if he did not depart on the instant, he had no further protection. but it occurred to over-anxious legislators that such a fugitive might carry beyond seas precious hints of the mysteries of trade or politics, or that, making as if for the nearest port, he might but proceed to infest another place. so he was ordered to abjure the liberty of the realm, but not the realm itself; and being branded, was confined under a governor in one or other of the sanctuaries. whenever he ventured forth--as he might in the daytime--he must wear the prescribed badge of the refuge. he dare carry no weapon save a meat-knife, and that but at meal-times. he must likewise answer to the daily roll-call. if he committed another felony--and crimes done _sub spe redeundi_ had been a sore grievance of late--he was to lose his rights. the governor was empowered to hold courts for debt and minor offences within his bounds. and so "the sanctuary person abjured," as the tudor lawyers phrased him, spent the last days of his evil life. i need not dwell on minor tinkerings of the system under henry's children. in the statute james i., c. , s. made a legal end of the right of sanctuary. the last of our story is not yet. certain places still assumed the right of giving shelter against civil process. when the bailiffs invaded the liberty, the whole population forthwith set on, and pommelled them so lustily that they were fortunate if they escaped sound in limb. the precincts of whitefriars and the savoy were the worst places in london. the first, renowned in slang, nay, in literature, as alsatia, because (some explained) it neighboured the temple on the east, as alsace did france, was a base and villainous bohemia. ram alley (now mitre court), a local lombard street, salisbury court (now salisbury square) were its chief ways, though probably all between fleet street and the river, which was not the temple, held of this lawless republic. a bully or bravo, or squire of alsatia was a cant name for a penniless and violent fellow of the time. he is pictured by otway in his _soldier's fortune_ with flopping hat pinned up on one side, with a tawdry weather-beaten peruke, dirty linen, and a long scandalous iron sword jangling at his heels. the sheriff with the _posse comitatus_ did on occasion raid alsatia, but his prey, if too weak to fight, had ever timely warning to escape by land or water to some other like burrow. _the fortunes of nigel_ tells as much of the place as the general cares to know, and there is much curious matter mined out by the zealous antiquary as to other like places of refuge in the capital. thus fullwood's, sometime fuller's rents, was related to gray's inn as alsatia to the temple. in the gentlemen of that ancient house so far forgot themselves as to engage in "pumping" some bailiffs who attempted to take goods from out the rents upon an execution. "they were charged with a body of thirty lusty bailiffs," and a "strong ryot" ensued. possibly they recollected that their most illustrious fellow-member, "broad-browed verulam," had taken refuge there some sixty years before, a circumstance which gave my lord coke occasion to "gall the kibe"--as indeed he never lost any chance to do--of his great contemporary. then there was the mint in southwark, whereto an ex-poet laureate, "poor nahum tate," as dr. johnson calls him, was driven by extreme poverty. pope's cruel satire pictures it half grub street half bedlam, the last refuge of the hack and the poetaster. the clink and deadman's place are now forgotten, whilst baldwin's gardens and the minories have a more commonplace reputation. about a century after james's act, parliament again interfered, and professed to strip the "pretended privileged places" of every shred of exemption, but it required two other statutes, the geo. i. c. , , and the geo. i. c. , , to make the law's process as effectual there as elsewhere. trial by ordeal before the conquest, and for long after, local justice in england was administered by two courts--that of the hundred and that of the shire. the first nominally consisted of the freeholders of the district, but the real business was done by a committee of twelve. the second was made up of the chief men of the district, and representatives from each township; but here, again, the work was left to a select few. if a man were charged with (say) theft before either court, he was tried in a fashion vastly different from that obtaining to-day. the complainant was sworn on the holy relics: "by the lord i accuse not this man either for hatred, or for envy, or for unlawful lust of gain." this solemn accusation made out a _primâ facie_ case against the suspect, who instantly rebutted oath with oath. "by the lord i am guiltless, both in deed and in counsel of this charge." then he produced twelve compurgators, who swore by the lord, "the oath is clean and unperjured which this man hath sworn"; then the prisoner went free. these compurgators were witnesses to character. their testimony had no reference to the particular facts of the case; they simply alleged their belief in accused's innocence, but sometimes their oath "burst" (as the curious technical phrase ran), that is, he could not find compurgators, or those he produced said little good of him; or he was a stranger of whom nothing was known; or a welshman whose veracity has never been an article of faith; or the accused was caught with his booty; or was a woman; or the charge was peculiarly odious, as treason, or witchcraft; then in all these cases there was an appeal to the _judicium dei_, the creator was called upon to prove beyond dispute the guilt or innocence of the accused. trial by ordeal was more ancient than the church itself. there are traces of it in the old testament; it is discussed in great detail in the laws of manu; a famous passage in the _antigone_ (verses - ) reveals it as well known to the greeks, and before augustine came, or st columba preached, it prevailed in some form or other in britain. yet the higher ecclesiastical powers continually thundered against it, and finally brought about its disuse. there were several varieties, but many forms were common to all. first, there was the ordeal of cold water, chiefly reserved for the baser fellow. as a preliminary the accused submitted to a fast of three days, during which he was watched by a priest, then he was taken to church to hear mass; and was adjured by father, son, and holy ghost, by the gospels and relics of the saints, by everything held most sacred, not to partake of communion if he were guilty. next came the _adjuratio aquæ_, wherein the water was enjoined to cast him forth if he were guilty, but to receive him into its depths if innocent. and now, having been stripped, he kissed the book and the cross, was sprinkled with holy water and was cast in, to float if he were guilty, to sink if he were not. but there was the rub--how about death by suffocation? sir james stephen suggests that it was all a mode of happy despatch! or (one fancies) it might be an elementary form of the famous verdict "not guilty, but don't do it again," with the chance of doing it again effectually provided against. on the other hand, a recipe for immersion in a thirteenth century ms. of the monastery of becca reduces the proceedings to the level of farce. the hands of the accused were tied, and a rope was put round his waist; "and let a knot be made in the rope as high up as the longest hair of the man's head will reach, and then in this way let him be gently lowered into the water; and if he sinks down to the knot, let him be pulled out as innocent; if not, let him be adjudged guilty." how _not_ to sink under such conditions? the practice of testing witches by throwing them, securely tied, into the nearest pond was clearly a survival of this form of ordeal. in the ordeal by hot water the accused, plunging his hand to the wrist in the boiling fluid, brought forth a stone suspended therein by a cord. (this was the single ordeal, and it became the triple when the plunge was up to the elbow.) the arm was done up in bandages not to be removed till after three days; if the scald had healed the man was innocent, if it still festered he was guilty. in the ordeal by hot iron, a piece of red-hot metal was carried a distance of nine feet; it was then dropped and the hand was bandaged as already set forth. a knight had to thrust his fist into a glowing gauntlet; another form was a walk with naked feet over a sequence of red-hot ploughshares. we have a picturesque circumstantial and absolutely untrustworthy monkish account of how emma, mother of edward the confessor, being suspected of an all too intimate acquaintance with alwyn, bishop of winchester, underwent this trial. she took nine steps for herself and five for the bishop, fixing her eyes the while on heaven. "when shall we reach these ploughshares?" queried she. how agreeable a surprise to find her little promenade already past and done with! no need to swathe _her_ feet, the red-hot iron had marked them not at all! the last mode was the _corsnæd_, or cursed morsel--a piece of barley-bread (or cheese), one ounce in weight. this "creature of sanctified bread" was adjured, in terms terrible enough to make the sinner quake, to stick in the guilty throat, and cause the guilty jaws to be clenched and locked up. if in spite of all it went softly down, who dared to refuse belief in the man's innocence? it was chiefly for the clergy, and from every point of view must have been the most agreeable of the three, though a legend as untrustworthy as that of emma ascribes to it the death of earl godwin, father of harold. as he sat at meat with edward the confessor, the king brought up an old scandal about his brother's murder, "may god cause this morsel to choke me," passionately exclaimed the earl, "if i am guilty of the crime!" edward blessed the bread; godwin made an effort to swallow, choked and died. "take away that dog," said the monarch in what would seem an outburst of savage glee. this was on april th, , thirteen years before the conquest. godwin in truth died of a fit. it soon was the policy of the monkish chroniclers to write down the national party of which he had been the head, a fact which explains the fable were it worth serious examination. more interesting to note the survival of the rite in the still current rustic formula, "may this bit choke me if i lie!" if the ordeal proved a man guilty, the punishment was fine, death or outlawry, but even if he escaped, the assize of clarendon ( ) ordered that, in certain cases, he should abjure the realm. by that time compurgation was gone; in the lateran council issued a solemn decree against trial by ordeal; and soon after it had vanished from english law. there is a curious reference to it in the state trials as late as . john govan, a jesuit priest, was indicted in that year at the old bailey for an alleged share in the popish plot. with some hesitation he claimed the right of trial by ordeal as an ecclesiastical privilege of a thousand years' standing, but scroggs and north peremptorily refused to listen to his plea. "we have no such law now," said the latter. sir james stephen assures us that the formula, "by god and by my country," wherein, till , a prisoner must answer the question how he would be tried, sets forth a memory of it. of the customs akin to trial by ordeal only one can find mention here. it was held that if the murderer touched, nay, even approached, the body of his victim, the wounds gushed forth blood, thus in _richard the third_, "dead henry's wounds" are seen "to open their congealed mouths and bleed afresh" as gloucester draws near the bier. and according to one of the picturesque legends of english history, when richard the lion-heart encountered at fontevrault his father's body, the blood gushed from the nostrils of the dead king, a proceeding which, as richard's offence was at the worst but unkindness, showed a somewhat excessive sensibility on the part of the royal clay. the oddest and latest case of all is from scotland. in philip stanfield was tried for parricide at edinburgh; one count of the indictment stated how his father's body had bled at his sacrilegious touch. the lord advocate, sir george mackenzie of rosehaugh, the "bluidy mackenzie" of covenanting legend and tradition, conducted the prosecution, and philosophic and cultured jurist as he was, he yet dwelt with much emphasis on the portentous sign. there was no lack of more satisfactory if more commonplace evidence, and young stanfield assuredly merited the doom in the end meted out to him. wager of battle judicial combat is a fascinating yet perplexing subject, having many side-issues whereupon the writer must sternly refrain. the case of david and goliath was gravely urged (a.d. ) as a precedent to pope nicholas i., and by him disdainfully put aside. the thing itself was unknown in roman law, though the old legend of the horatii and curatii was part of its lore. but it was of the essence of chivalry, and the duel and the prize-fight were its legitimate offspring. "where the hazel grew," so mr george nelson, our chief modern authority, picturesquely defines its region, but our attention here must be limited to england. that it was _not_ with us before the conquest moves bishop stubbs to something of the scholar's mild amazement. the normans, it seems clear, brought it with them from their continental home. a native accused of a serious crime by one of the invaders was tried by ordeal of battle, but a norman had choice of the oath as well, and it was also used to decide which of the claimants should have a disputed piece of land. after the legal reforms of henry ii., it became an alternative proceeding in a limited class of actions. these were the writ of right (the most solemn method of trying title to land), accusations of murder, and treason. it had place only in appeals, in actions, that is to say, brought not in the king's name, but by an interested subject here called the appellor, against whom the accused or appellee might offer to prove his innocence by his body. the appellor must accept the challenge unless he were maimed by age or wound. likewise he could "oust the battle" (_i.e._ prove this mode of trial improper) if the accused were caught red-handed. the parties exchanged gloves, and gave pledges or wads (_vadiare bellum_); whence came wager of battle, afterwards the technical term for the whole process. in civil cases, if the litigants came to terms, the judge exacted a fine, called the concord, while he who fought and lost must pay the mulct of recusancy. in criminal matters he who resisted not till the stars shone forth was branded as recreant or craven and was forthwith strung up, and all his goods were declared forfeit. the charters of exemption purchased from overlord or king show how hateful the system was to the old english citizen. henry i. enacted for a consideration that no londoner should do battle, and in due course the men of winchester, lincoln, and northampton obtained the like privilege. the story of leicester is worth the telling. in the time of henry i. earl robert of mellant ruled the town. it chanced that two burghers, nicholas and jeffrey, waged battle on a plea of land. for nine long hours they mauled each other with varying fortune, when one of them took to flight, and staggered, all unwitting, on the edge of a pit. the other saw his danger, and remembered that they twain were kinsmen. "'ware o' the pit," he shouted; "turn back, lest thou fall therein." the spectators so lustily roared their approval, that the earl heard it in his castle, and he, after due enquiry, granted that in time coming twenty-four jurors of leicester should determine all civic disputes. one strange product of trial by combat was the approver: a rascal who turned king's evidence, and fought with his late companions. sometimes he accused other malefactors, and if he came off victor in five combats he was released, and banished the country. this system fell into gross abuse, for the approver, greedy of freedom or hush-money, appealed honest men right and left. in the chronicle of william gregory the skinner ( ) we have an account of a duel fought by one thomas whitehorne, a criminal, caught in the new forest, and lodged in prison at winchester, where he remained for about three years, fighting ever and anon. "and that fals and untrewe peler (= appelar) hadde of the kynge every day d. ob." at last a proposed victim retorted the lie in his throat, and said that "he wold prove hyt with hys handys and spende hys lyfe and blode a-pone hys fals body." then the judge "fulle curtesly informed this sympylle man" that "he and the peler moste be clothyed all in whyte schepys leter." also each must have a stave of green ash, three feet long, the point thereof "a horne of yryn i-made lyke unto a rammy's horne;" and if these ash-plants broke, then they "moste fight with hyr handys, fystys, naylys, tethe, fete, and leggys." moreover, they must strive fasting on the "moste sory and wrechyd greene about the town;" but "huyt ys to schamfulle to reherse alle the condycyons of thys foule conflycte." and we must follow gregory's precept rather than his example. the appellee, asking for inquiry as to his character, was reported "a fyscher and tayler of crafte," and therewith the "trewyste laborer and the moste gentellyte." the peler, with brazen insolence, offered _his_ character for inspection. there was much dubiety as to where and how he had lived when at large, but "hange uppe thome whythorne" was the response of every reference he tendered. at last the day came. the appellee, as became an innocent man, told his beads, and prayed long and earnestly, and wept full sore, and all present prayed for and with him. the "fals peler" scoffed thereat. "thou fals trayter," yelled he; "why arte thou soo longe in fals bytter beleve?" the defendant's sole answer was so lusty a thwack that his staff flew all to pieces. thereupon the peler's stave was taken away from _him_; "ande thenn they wente togedyr by the neckys," so using teeth and fist, "that the lethyr of clothing and fleshe was alle to rente in many placys of hyr bodys." it fared ill at first with the "meke innocent." his opponent had him down on the ground, and near choked the life out of him. but presently the meek one got up on his knees, and (the combat not being under queensberry rules), "toke that fals peler by the nose with hys tethe, and put hys thombe in hys yee, that the peler cryde owte ande prayde hym of marcy, for he was fals unto god and unto hym." the peler's subsequent record is of the briefest, but, one is thankful to add, of the most edifying description. "and thenn he was confessyd and hanggyd, of whose soule god ha' marcy." amen. "_victus est et susp_," so for epitaph wrote the official scribe against his name. and the exchequer parchments knew him and his "_ d. ob. per diem_" no more. the champion, now but the shadow of a name, was a nobler offshoot of the system. originally a witness, he was finally indispensable in civil cases wherein--for a legal reason not here to be discussed--the parties themselves must not engage. he was the proper advocate for churchmen, for women, and for the crown; and his last appearance for royalty was in , at the coronation of george iv. the dymocks have held the manor of scrivelsby in lincolnshire for centuries by this tenure, and possibly their representative claimed a part in the pageant on the two subsequent occasions, but to have him ride up westminster hall in full armour and clang his gauntlet on the floor (as he did of old) would have savoured too much of drury lane pantomime for the taste of a cynical age. the champion's dress and bearing were minutely ordered. his head (_e.g._) was shaven, but whether this was to give no hold to his foe, or to fulfil some old superstition, is still in debate among the learned. in the end he was usually a hireling, which fact may very well have accentuated the absurdity of the system. at any rate, towards the close of the thirteenth century it was only kept alive by the approvers. then chivalry came with its treason duel, and by the time of richard ii. the chivalry court was in full swing. its forms, mainly imported, were after this wise. upon the accusation and the exchange of gloves, time and place were assigned for the duel, and here the lists were set and staked. there were two gates, and hard by each a pavilion--one eastward for the appellant, and the other westward for the defendant. to the south was the judge's seat; and right and left were benches for the high-born, while the commons were made free of the unenclosed field. near the judge an altar was decked with relics; and not far off there stood a gibbet and a scaffold. men-at-arms were stationed between the palisades. there were heralds in gay tabards, a priest in full canonicals stood at the altar--but it were wearisome to enumerate all the officials. the trial was held not less than forty days after the challenge; and the time being come, the heralds demanded silence; and the appellant was summoned three times by voice and by sound of trumpet. as he marched forward he was addressed by the constable, "who art thou, and wherefore comest thou armed to the door of these lists?" his answer given, he was taken to his pavilion, and afterwards was made to swear on the altar that his cause was just. the other did in like fashion. then the pavilions were replaced by chairs whereon the combatants might take an occasional rest. napkins holding a loaf and a bottle of water were hung on opposite ends of the lists. the marshal cried three times "_laissez les aller_," and the pair went at it. far better death than defeat. if either yielded, the marshal cried "hoo," to declare the combat at an end. then the wretch was taken to the scaffold on which his shield was hung reversed, his sword was broken, and his spurs hacked from his heels. he was now taken to the church where a mass for the dead was sung over him, and at last he was haled to the gibbet where the hangman claimed his prey. this is the form of judicial combat that caught the fancy of our great writers. in chaucer's _knight's tale_ there is the elaborate set to between palamon and arcite. in shakespeare's _richard ii._ there is the fiasco of norfolk and hereford. in _lear_ we have the fight to the death between edmund and edgar, and "every schoolboy knows" the templar's duel in _ivanhoe_. chivalry passed, yet not the half-forgotten wager of battle. a claim so to determine a civil dispute was made in , to the great perplexity of the lawyers. elaborate preparations were made, but the case was settled in other fashion. under james i. bills were introduced into parliament to abolish it, but they fell through, and in , at the beginning of the north american troubles, when it was proposed to punish the new englanders by depriving them of the appeal of murder, dunning, afterwards lord ashburton, described it as that great pillar of the constitution. burke concurred, and the motion was lost. perhaps they have it yet in the states, at least dr cooper, in editing, in , the statutes at large of south carolina, treats wager of battle as an existing fact. in england the end came in dramatic fashion. in may mary ashford--a young woman of langley in warwickshire, was found drowned under suspicious circumstances. a certain abram thornton was suspected of the murder; he was tried and acquitted, but there was much evidence against him, and he had played so ill a part in a horrid though vulgar tragedy that the relatives of the dead girl cast about to carry the matter further. now, an old act provided that no acquittal by jury should bar an appeal of murder, so william ashford, mary's brother, appealed thornton in the court of king's bench. he was attached, and when called upon pleaded "not guilty, and am ready to defend the same by my body." he then threw down his glove on the floor of the court. it was a curious turn; for no doubt men thought that he would put himself upon the country, and stand a second trial by jury. there was much legal argument (set forth at great length in the reports of the time), for the prosecuting counsel tried hard to "oust his battle," but to no purpose, and in the end thornton was set free. in , two years after the drowning of mary ashford, the appeal of murder act ( geo. iii. c. ) abolished the last remnant of wager of battle. the press-gang smollett, galt, marryatt, and the other naval novelists, not those well-nigh forgotten dry-as-dusts whose works encumber the back shelves of our law libraries, are the authorities for the press-gang of popular imagination. the sea-port invaded, the house surrounded at dead of night by man-o'-war's men with stout cudgels, and by naval officers with cutlasses; the able-bodied mariner knocked down _first_ and _then_ bid stand in the king's name; the official shilling thrust into his reluctant palm before he is hauled off in irons--who has not devoured with joy this wild romance, with its tang of the sea, its humour and rough frolic, the daring and exciting prelude to much more daring and more exciting achievements? but how far can we trust these entertaining authors? and what was the legal status of the press-gang? we are like to get nearest the truth in a law case with its official documents and sifted evidence and considered decision. the trial of one alexander broadfoot for the murder of one calahan is the best available. in the april of h.m.s. _mortar_ lay at anchor off bristol. the captain held a warrant of impressment, but he could delegate his authority only to a commissioned officer, whose name must be inserted in his order; and the only one aboard was the lieutenant. on the th the ship's boat was sent down channel, _with neither captain nor lieutenant_ to look for men. she had no luck till evening, when she came across the _bremen factor_, a homeward bound merchantman, still some leagues from port, but beating thitherward up channel. the man-o'-war's men having boarded her, were proceeding to search the hold, when they were confronted by broadfoot, the boatswain, armed to the teeth. he demanded what they came for. "for you and your comrades," was the plain and honest, though no doubt irritating answer. "keep back, i have a blunderbuss loaded with swan shot," said broadfoot, levelling his piece. the press-gang stopped. "where is your lieutenant?" he went on. (evidently this boatswain knew a little of the law.) "he is not far off," was the evasive answer, showing that the man's acts and words had impressed his assailants. did broadfoot grasp the fact that they were trespassers? at any rate, he let fly, killed calahan on the spot, and wounded two others. he was tried at bristol, and acquitted of the capital charge--for the action of the man-o'-war's men was plainly irregular; but he was found guilty of manslaughter, for that he had used more force than was necessary. another case is that of robert goldswain, a small freeholder at marlow, in bucks. in the march of he was a bargeman on the thames, engaged in carrying timber to the king's yard; with a protection order from the navy board to him by name so long as he should continue in that service. but these were troubled times, the french had just declared for the revolted american colonists and our war-ships were frightfully undermanned; so, on the th of march, the admiralty fixed the next night for a general press on the thames, with direction to seize--despite protection orders--on all sailors and watermen whatsoever, saving and excepting merchant skippers and men exempted by special acts. goldswain was in the net, and was passed from ship to ship down to the nore, where his captors were overtaken by an order from the court requiring a return to a writ of habeas corpus issued on his behalf. counsel's argument for the admiralty--that the device of first issuing protection orders to lure sea and watering men from their lurking-places, and then pouncing on them under the authority of a general press, was excellent--did not commend itself to the court, which, in the battle over poor goldswain's body, suspected some antagonism between the admiralty and the naval board. in the end my lords gave way, and marlow received again her ravished freeholder. during the strain and stress of our eighteenth century war-making, when we had every need of seamen to man our battle-ships, and could not afford the market price for them, there was much impressment, and through frequent appeals to the courts the law on the subject was exactly determined. it was a prerogative of the crown, a remnant of larger rights which at one time took in soldiers and ships, or their equivalent in cash (hampden's famous trial scarce needs mention); it could not be justified (it was allowed) by reason, but only by public necessity. on command of the king all sea and river-faring men were liable to naval service in time of war. the right to impress was founded on immemorial usage, for, though given by no statute, it was recognised by many. it was so held on the authority of a case in queen elizabeth's reign: the sole customary exception was a ferryman; but merchant captains were in practice likewise allowed to go free. only in charles i.'s reign, when all the crown prerogatives were jealously overhauled, was there any serious questioning of its legality, but it was exercised by the commonwealth as well as by the monarchy. given up in fact some fifty years since, it has never been so in law. you find in horner's _crown practice_ ( ) a form of _habeas corpus ad subjiciendum_ for impressed men, with the comment that it is little needed now. of the enormous number of commissions and statutes relating to impressment, an example taken here and there must suffice. the acts express amazement and virtuous indignation at mariners unwilling to serve. one (_temp._ henry vii.) sets forth that such as are chosen, and have received their wages, shall, if they give leg-bail, be amerced in double, and go to prison for a year--when they are caught. another (_temp._ philip and mary) reproves the thames watermen who, in pressing time, "do willingly and obstinately withdraw, hide, and convey themselves into secret places and outcovers; and, after the said time of pressing is o'erpassed, return to their employments." after the revolution an attempt was made to establish a naval reserve by means of a voluntary register, and so do away with impressment, but this was a complete failure. then, to foster the coal and other trades, certain exceptions were granted; and still later, sailors in outward bound merchantmen were exempted because of the hardship inflicted on their employers (the hardship of the sailor impressed in sight of port after a long voyage was not considered). when a warship fell in with a merchantman on the high seas she impressed what men she would. british sailors found on board american vessels were hauled out forthwith, and this was one cause of the war of . press-gang stories, more or less authentic, are numerous. here are samples which serve to show that the searchers did not nicely discriminate between those who were and were not legally subject to impressment. a well-dressed man was seized. he protested that he was a gentleman of position. "the very boy we want," gleefully replied his captors; "for we've such a set of topping blackguards aboard the tender, that we wanted a gentleman to teach 'em manners." sham press-gangs for the black-mailing of honest citizens were common. in one case a couple had given all their money to go free, when the real gang coming up made booty of both parties, and had them aboard in no time. the quarrymen at denny bowl, sixty strong, were heard to brag in their cups what _they_ would do did the press-gang dare to molest _them_, whereupon "three merry girls" got into breeches, put cockades in their hats, took sword and pistol, and advanced, when the quarrymen ran like hares. and to conclude, there is the legend of the gang that raided "the cock and rummer" in bow street. they seized the cook. the customers, fearing for their dinner, or themselves, rushed to the rescue. long the strife hung dubious, when the constable (he ought to have been a bow street runner) stalked in. the gang, with a fine sense of humour, let the cook go, seized _him_, and away at a great rate, though not fast enough to get clear. sumptuary laws "act of parliament" is a term apt to mislead. to-day it is enforced by so powerful a machinery that practice conforms to precept; but in mediæval england much law was dead letter. statutes were often mere admonitions; they expressed but an ideal, a pious intention. this was specially true of the sumptuary laws, whereby the dress and food of the king's subjects were nicely regulated. if you turn over a book of costumes you find that man's attire has varied more than woman's. the sorts and conditions of men were marked by rigid lines. this fact was shown forth in their dress, and that again re-acted on their modes of thought and habits of life. "men's apparel," says edmund spenser, "is commonly marked according to their condition, and their conditions are often-times governed by their garment, for the person that is gowned is by his gown put in mind of gravity, and also restrained from lightness by the very unaptness of his tweed." of old time man's dress was rich and varied, but how to catch its vanished effect? in courts of justice there is still the splendid, if occasional, bravery of the judge. see the same man in private, gaze on divinity disrobed, and the disenchantment measures for you what is lost in the splendid garb of other days. in mediæval europe the church first condemned a too ornate appearance. thus, under our early norman kings, long hair was much in vogue. in bishop serlo, preaching before henry i. and his court in normandy, attacked this fashion roundly, compared his hearers to "filthy goats," and moved them by his eloquence to tears of contrition. he saw and seized that softer hour. descending from the pulpit he then and there clipped the polls of them that heard him till he must fain sheath his shears for lack of argument. this rape of the locks was followed by a royal edict against long hair. alas! for this story. rochester cathedral still bears the effigies of henry and maud his queen; each is adorned even as absalom, and time, whilst it has mauled their faces in cruel fashion, has with quaint irony preserved intact those stone tresses. two centuries pass ere the sumptuary laws proper begin. the edward iii. c. ( ) ordered that no man was to have more than two courses at dinner, nor more than two kinds of meat, with potage in each course; but on eighteen holidays in the year the lieges might stuff at will. next parliament common folk were forbidden to wear furs; but the edward iii. was the great session for such work, made needful (it was thought) by the sudden increase of luxury from the plunder of the french wars. some half-dozen acts prescribed to each rank, from peers to ploughmen, its wear; nay, the very price of the stuff was fixed; whilst all wives were to garb themselves according to their husbands' means--a pious wish, repeated a century afterwards, in an act of the scots james ii. the veils of the baser sort were not to cost more than d. apiece: embroidery or silk was forbidden to servants, and these were to eat of flesh or fish but once a day. cloth merchants were to make stuff enough, and shopkeepers to have stock enough, to supply the anticipated demand. such apparel as infringed the statute was forfeit to the king. the knight's dress will serve for sample of what was required. it was to be cloth of silver, with girdles reasonably embellished with silver, and woollen cloth of the value of six marks the piece. under richard ii. monstrous sleeves were much affected. a monkish scribe inveighs bitterly against these "pokys, like bag-pipes." some hung down to the knees; yea, even to the feet. servants were as bad as their masters! when potage is brought to table, "the sleeves go into them and get the first taste." nay, they are "devil's receptacles," since anything stolen is safely lodged therein. and so a statute of the time prohibited any man below a banneret from wearing large hanging sleeves, open or closed. the fashion changed to _dagges_, a term explained by the th of henry iv., which forbade "gown or garment cut or slashed into pieces in the form of letters, rose-leaves, and posies of various kinds, or any such devices." the fantastic peaked shoes of the fifteenth century, sometimes only held up by a chain from the girdle, were fair mark for the lawgiver, and under edward iv. no less person than a lord was allowed peaks exceeding two inches. an act in the same reign banned the costly head-gear of women. henry viii. saw to men's garb as well as their beliefs. his first parliament forbade costly apparel, and there is preserved in the record office a letter from wolsey enclosing to the king, at his request, the act of apparel, with an abstract, for examination and correction. exemptions were not unknown: thus, in , henry conway of bermondsey obtained license to wear "camlet, velvet, and sarcenet, satin and damask, of green, black, or russet colour in his clothing." under queen mary common folk who wore silk on "hat, bonnet, girdle, scabbard, hose, shoes, or spur-leathers," were grievously amerced. under elizabeth the regulations were numberless: thus there is an act for "uttering of caps, and for true making of hats and caps." no one was to engage in this business unless he had been "a prentice or covenant servant" by the space of seven years. no one under the degree of knight was to wear a cap of velvet. but these were not pure sumptuary regulations: they were for protection of home industries. a statute of the previous reign had declared that no man was to buy more than twelve hats or caps, be it out of this realm; and a previous act of elizabeth had strangely provided that if anyone sold foreign apparel on credit for longer than eight days to persons not having £ a year he should be without legal remedy against his debtor. on the th june , an elaborate proclamation complained of "the wasting and undoying of a great number of young gentlemen" who were "allured by the vayne shewe of those thyngs." a schedule was appended in which the costumes prescribed for all sorts and conditions of men were set forth. in the star chamber on june th, , my lord keeper gravely admonished the judges to look to all sorts of abuses--"solicitors and pettifoggers," "gentlemen that leave hospitality and housekeeping and hide in cities and borough towns," "masterless men that live by their sword and their wit, meddlers in princes' matters and libellers," and last, but not least, "to the vanity and excess of woman's apparel." all was in vain, if we are to believe the fierce invective of stubb's _anatomie of abuses_. "there is now," he groans, "such a confused mingle-mangle of apparel, and such preposterous excess thereof as every one is permitted to flaunt it out in whatever apparel he listeth himself, or can get by any kind of means." it was horrible to hear that shirts were sold at £ a piece, and "it is a small matter now to bestow twenty nobles, ten pound, twenty pound, forty pound, yea, a hundred pound, of one pair of breeches (god be merciful to us!)" after this aught else were anti-climax, and so for the women he can only say they were worse than the men. a new order of things came in with the next reign, for the act jac. i. c. , sec. , repealed at one stroke all statutes against apparel. in scotland they kept up the game some time longer, but one need not pursue the subject there, though a curious statute of the scots james ii. ( ) must have a word. it provided that "na woman cum to kirk nor mercat with her face mussled that she may nocht be kenn'd under the pain of escheit of the curchie" (forfeiture of the hood). in ireland there was a law (says spenser) which "forbiddeth any to weare theyre beardes on the upper lip and none under the chinn:" another "which putteth away saffron shirtes and smockes," and so forth; but these were of english importation. in the north american colonies sumptuary legislation has a history of its own. in massachusetts an edict of september , declaims against the "much waste of the good creatures (not the tipplers, but the tipple) by the vain drinking of healths," which practice is straightway forbidden. excess or bravery of apparel is condemned, and no one is to wear a dress "with any lace on it, silver, gold silk, or thread under the penalty of forfeiture." again, it is provided that children or servants are not to have ornamental apparel. here is an individual case. robert coles, in march , for drunkenness is disfranchised and condemned for a whole year to "wear about his neck, and so to hang upon his outward garment a d made of red cloth and set upon white"--a very unromantic scarlet letter! these things, too, passed away, but in the maine liquor law of , one traces the revival of the old idea. in england the thing lived not again. under the commonwealth public opinion enforced a "sober garb." charles ii. had some idea of a national costume, but he was too wise or too careless to attempt legislation. in the wearing of the highland dress was forbidden, but that was policy, just as centuries before the jews had a special garb ordained for them. also a number of laws were passed to promote home manufactures: so under charles i. and charles ii. the entry of foreign bone-lace was prohibited, though the second monarch granted licence for importing same to john eaton for the use of the royal family. it would also serve, he coolly remarked, for patterns. there is one other curious example. too much foreign linen was used, and so the th of charles ii. c. ordered the dead (save the plague-stricken) to be buried in woollen shrouds. the relatives must file an affidavit with the clergyman as to this, and £ was the fine for _him_ if he neglected his part. did the vision of that unseemly shroud really disturb poor nance oldfield's last moments, as pope would have us believe? "odious! in woollen! 'twould a saint provoke!" were the last words that poor narcissa spoke. "no: let a charming chintz and brussels lace wrap my cold limbs and shade my lifeless face!" "narcissa" had her wish: the "brussels lace" of her head-dress, her "holland shift," a "pair of new kid gloves on her cold hands," were the talk of the town; so they tricked her out for westminster abbey. almost up to waterloo the act lingered on the statute book, till some ingenious rascal brought an action against various clergymen for the £ penalty, for that they had not certified to churchwardens the cases of non-compliance. and so, in , the th george iii. c. swept away the strange provision. printed by turnbull and spears, edinburgh transcriber's notes: text in italics is surrounded with underscores: _italics_. obvious typographical errors have been corrected. inconsistencies in spelling, punctuation, and hyphenation have been standardized. benton's abridgment of the debates of congress. abridgment of the debates of congress, from to . from gales and seaton's annals of congress; from their register of debates; and from the official reported debates, by john c. rives. by the author of the thirty years' view. vol. i. new york: d. appleton & company, & broadway. chicago: s. c. griggs & co., lake st. . entered according to act of congress, in the year , by d. appleton and company, in the clerk's office of the district court for the southern district of new york. preface. the title-page discloses the sources from which this abridgment is made, and shows them all to be authentic, and reliable,--well known to the public, and sanctioned by resolves of congress. of the latter of these authorities--"gales and seaton's register of debates," "the congressional globe and appendix, by blair and rives," and the same afterwards by "john c. rives"--it is not necessary to speak, further than to remind the reader, that they are original reports, made either by the publishers or their special reporters, and revised by the speakers, and accepted as authority by congress; and therefore needing no historical elucidation to show their correctness. but of the first--"the annals of congress by gales and seaton"--being a compilation, a special, but brief notice is necessary to show the credit to which they are entitled. and first, of the qualifications of the compilers for their work. to education and talent, and a particular turn for political disquisition and history, they added, at the time, more than forty years' personal connection with the debates of congress, as reporters and publishers of the speeches and proceedings in that body. both of these gentlemen reported, on extraordinary occasions; and both with great aptitude and capacity for the business, and mr. gales especially, (under whose particular care the compilation of the annals was made,)--of whom mr. randolph, a most competent judge, was accustomed to say, that he was the most perfect reporter he had ever known--a perfection which resulted not merely from manual facility in noting down what was said, but from quickness and clearness of apprehension, and a full knowledge of the subject spoken upon.[ ] to this capacity for the work, these gentlemen added peculiar advantages for knowing and reaching the sources of information. the father of one of them, and the father-in-law of the other,--(mr. joseph gales, senior,)--had been an early reporter of the debates of congress;--in the time of washington and the first mr. adams,--and, of course, a collector and preserver of all contemporary reports. these came into their hands, with ample knowledge of all the sources from which further collections could be made. to these capabilities and advantages, were added the pride of character which exults in producing a perfect work;--and they spared neither pains nor cost to produce such a work--and succeeded. the following extracts from a letter of the late mr. justice story, of the supreme court of the united states, dated january th, --and from one from mr. justice mclean, still of that high court, dated th of february, --sufficiently attest the value of the compilation, and the excellence of its execution. mr. justice story says: "i have examined these volumes with great attention, and i am entirely satisfied with the plan and execution of them. i have, for many years, deemed the publication of the debates in congress, interwoven as they should be, and as they are in your plan, with the proceedings explanatory of them, one of the most important and valuable enterprises for public patronage. in an historical view, it will reflect the strongest and best lights upon the nature and operations of the government itself, its powers, its duties, and its policy. as a means of expounding and interpreting the constitution itself, it can scarcely be over-estimated. when i was employed in the task of preparing my commentaries on the constitution i constantly had recourse to this source of information in all cases within my reach. i had occasion then deeply to regret, however, that many of my researches terminated in disappointment from there not being any complete collection of the debates in print, or at least none in any one repository, or without large chasms, which it was difficult if not impossible to supply. if any such collection had existed, i am satisfied that it would have enabled me to make my own work far more accurate, full, and satisfactory than it now is. the parliamentary debates of england have been long since published, and constitute, in a political and historical view, some of the most authentic and useful documents for statesmen and jurists which have ever issued from the press. they are an indispensable part of the library of every real british statesman. a similar publication of all the debates in congress would be, if possible, of more permanent and extensive value to us, since questions of constitutional law and general public policy are more frequent topics of public debate here than in england. indeed, i do not well see how american statesmen, seeking a profound knowledge of the nature and operations of our government, can well do without them. at all events, if published, they would and ought to be found in the library of every american statesman, lawyer, and judge, who should aspire to an exact or thorough knowledge of our constitution, laws, or national policy." mr. justice mclean says: "i have read with much interest your proposal to publish the debates in congress from the adoption of the constitution. this is an undertaking of great magnitude, and will require large expenditures: but the work will embody a mass of information in regard to the history and policy of the government, which can be found nowhere else. there is no subject within the action of the government, which will not be found discussed in these volumes. they will contain materials rich in facts and talent for the writer of history, and will reward the researches of all who may wish to acquire a thorough knowledge of our system of government. this work when completed will become, i think, more interesting and valuable to this country, than are the parliamentary debates in england. the questions considered, (from the nature of our government, and especially in regard to our domestic relations,) are more diversified than the debates in parliament; and i have no doubt, that the general ability displayed in the american congress, will not suffer in comparison with that of the british parliament. our statesmen and jurists will find in these debates much to guide them in the performance of their public duties; for it is from the history of that time that knowledge is acquired for an enlightened public action. if our government is to be handed down to those who come after us, these volumes will increase in value with the progress of time, and will be one of the richest memorials of our early enterprise and patriotism, and the best evidence of our national advancement." and to these opinions of these two eminent jurists of the value of these annals, and the qualifications of the publishers for their task, and the merits of their work, is to be added the encouraging opinion of mr. madison, given at the commencement of the enterprise, in the year ,--near forty years ago,--when, in a letter to _messrs._ gales and seaton, he said: "the work to which you have turned your thoughts, is one which justly claims for it _my_ favorable wishes. a legislative history of our country is of too much interest not to be at some day undertaken; and the longer it is postponed, the more difficult and deficient the execution becomes. in the event of your engaging in it, i shall cheerfully contribute any suggestions in my power as to the sources from which materials may be drawn; but i am not aware, at present, of any not likely to occur to yourselves." such is the value which these eminent men place upon these annals of our earlier congresses, and these annals embrace the whole period during which our government was presided over by those who helped to make it--the whole period from washington to monroe inclusive--a period of thirty-five years, and covering more than half the time that our government has existed. the two justices of the supreme court who gave their opinion of the work, and who were then (as one of them still is) in the actual discharge of great public duties, have declared the personal benefit which they derived from the compilation--one of them (mr. justice story) going so far as to say that his own work--the commentaries upon the constitution--(deemed faultless by others)--would have been "more accurate, full and satisfactory," if the annals had been published before them. with such opinions in favor of the annals, no more need be said to show their value to the rising generations; and in abridging them, the author feels that he is only making accessible to the community what is now inaccessible to it, on account of quantity and price; and useless (nearly), if accessible, on account of the obsolete or irrelevant matter which overlays and buries the useful. as late as the year , the publishers of the annals say, in a memorial to congress, that they had sold to individuals but twenty sets of their work; and the present enterprising and faithful publisher of the congress debates, (mr. john c. rives,) says he sells but some three or four sets a year of his valuable and voluminous work;--and these, not to individuals, but to institutions. it is the congress subscription alone, that has enabled the publishers of all these works to bring them out; and no public money was ever more worthily applied: but still congress cannot supply the community. mr. madison, in his letter of characteristic modesty to _messrs._ gales and seaton, speaks of their (then) intended work, as one which justly claimed _his_ favorable wishes. and well it might! for nowhere, in all the just and impressive eulogiums which have been pronounced upon him, does he appear to such advantage as in his own modest, temperate, luminous, and patriotic speeches during his service in congress--putting that new government into operation, of which he was one of the founders, and giving to all its machinery, a smooth, clean, and harmonious working. and so of innumerable others--illustrious men, and his compatriots--national reputations in their day, but contracting into local names under the progress of time, for want of a record of their patriotic labors, of national circulation, and popular accessibility. of that character, it is the desire of the author to make this abridgment. it is to him a labor of love and of pride--resuscitating the patriotic dead, putting them in scene again, passing them in long procession over an extended domain--no one skipped, and each in his place, with the best of his works in his hand. it is a work of justice to them, and may be of advantage to the present age, and to posterity, by reproducing for study and imitation, the words and conduct of the wise, just, modest, patriotic, intelligent, and disinterested men, who carried their country through a momentous revolution--moulded that country into one brotherly union--and then put the government they had formed into operation, in the same fraternal spirit of "_amity, mutual deference and concession_," in which they had made it. introduction. the debates of congress have been accruing for near seventy years, and fill more than an hundred volumes, and cannot be purchased for less than $ , nor advantageously used, on account of the quantity of superfluous matter which they contain. they are printed in full by congress, and ought to be so, and a small distribution is made among the members; but this distribution cannot reach the community, and would be nearly useless if it did, from the quantity of obsolete, local and transient matter which overloads them. in the mean time, these debates contain the history of the working of our government from its foundation--preserve and hand down to posterity the wisdom of ages--show what has been done, and how it was done--and shed light upon the study of all impending questions; for there is not a question of the day, and will not be while the government continues, which will not be illustrated by something previously said in these debates. all works consisting of periodical accumulations require periodical abridgment, in which, being relieved of what is superfluous, the residuum becomes more valuable from the disencumbrance--of easier use to the reader--and more accessible to the community, from the diminution of price and quantity. even the reports of the supreme court of the united states, though comparatively free from redundant or obsolete matter, have undergone abridgment--three volumes reduced to one--and become more valuable from the reduction. the same may be done with these debates, and with a far greater license of reduction, from the very nature of popular debating. some fifteen or sixteen octavo volumes, double columns, are expected to contain all that retains a surviving interest in the (more than) one hundred volumes, now surcharged with the full debates. the abridgment will not be restricted to the speeches of the celebrated orators, but extend to those of the business men, and to the plainest speakers--who are often the members who give the most useful information. full speeches are not expected to be given, there being none, after a short time, which do not contain much matter that has lost its interest. many entire heads of reported proceedings and discussions would be omitted: as--the morning presentation of petitions, often the same for ten or twenty years, and presented in both houses at the same time: discussion on private bills, which have no general interest: mere personalities: the endless repetition of yeas and nays, sometimes recorded an hundred times in contests about the same bill, when three or four sets would be sufficient to show the opinion of every member upon every material point: repetitions of speeches, for it is impossible that a member speaking for ten or twenty sessions on the same subject, (tariff, internal improvement, national bank, &c.) should not repeat the same thing over and over again. the work is intended to be national, such as would commend itself to the study, and come within the reach, of all who aspire to a share in the public affairs, either state or federal; or who wish to understand the history and working of their own government. it is the only way in which the wisdom of the earlier generation of our statesmen who put the government into operation--the madisons, gallatins, john marshalls, william b. giles, the fisher ames, roger shermans, &c.--can be made known to the present or future ages; and it is the best way in which the speeches of those who have lived in our own day, even the most eminent, can be diffused. for the speeches of no one, published in mass and alone, can have more than a local circulation; while judicious selections from a whole debate, enlivened by the vivacity of contention, going into a general work of this kind, must have a general circulation, and carry the name of the speaker, and the best of his speaking, into every part of the union. some notes, or commentaries, will be added by the author, discriminated from the text, to mark great starting, or turning points, in our legislative history, with a view to assist the reader in making the practical applications which give utility to knowledge. for example: at the beginning of the first tariff debate in the first session of the first congress, he will show that mr. madison compressed into twenty-two short lines, of eight or nine words each, all the principles of impost and tonnage duties which have governed all wise legislation upon the two subjects from that time to the present--namely: specific duties the rule--_ad valorems_ the exception: revenue the object--incidental encouragement to home industry the incident: specifics on all the leading and staple articles--_ad valorems_ on the inferior remainder: discrimination between articles of luxury and necessity, so as to put the burthen on the former--and between articles made, or not made, at home, so as to give encouragement to the home article: and all these duties moderate, so as not to shackle trade or agriculture. these were his principles on impost duties. those on tonnage consisted of discriminations in favor of our own ships, and in favor of nations having treaties of commerce with us, so as to encourage our own ship-building and navigation, and also to stimulate all nations to make commercial treaties with us. and thus, every object of impost legislation was provided for:--revenue for the government, encouragement to home industry, exemption from burthen to trade and agriculture. then, at the end of that debate, (which began in april, and ended in may,) it will be shown that a rate of duties was established, corresponding with these principles--all moderate, and adapted each to its object: five per centum on the lowest class of _ad valorems_, seven and a half on the next, and fifteen for the highest, and it of luxuries. the specific duties, applicable to the mass of the importations, at the same low rate; and this low rate, on the small importation of that time, and with the economy of that time, producing seven times the amount of revenue necessary for the "_support_" of the government! leaving six sevenths to go to the public debt and indian wars. the same rates of duty, with the same economy, ought to be equally sufficient now upon a sevenfold importation of dutiable goods. the emperor justinian, in compiling his institutes, commended their study to the liberal-minded youth of the empire who aspired to employment in the government; for that emperor, although a great and victorious general, yet placed the arts of peace and government above the exploits of war, and wished to see law and order, more than arms, studied and cultivated in his dominion. the great emperor napoleon had the same appreciation of legal and civil studies; and hence the four codes, at the digest of which he personally assisted, and the conception and execution of which do so much honor to his memory. in our own government the career of public employment is open to all, and should be prepared for by all who aspire to enter it. of elementary political works we have many, and excellent; but most of them only teach principles, and that abstractly, without practice. practical works are wanted to complete the study, and of these the most ample and least ungrateful may be a well-considered and impartial abridgment of the debates of congress. and here the author discharges an obligation of gratitude and justice to the earlier generation of our statesmen. he owes what he is to them. his political principles were learnt in their school--his knowledge obtained from their works--his patriotism confirmed by their example--his love of the union exalted by their teaching. the author. washington city, may, . first congress.--first session. held at the city of new york, march to september , . president of the united states,--george washington. proceedings[ ] in the senate. wednesday, march , . this being the day for the meeting of the new congress, the following members of the senate appeared and took their seats:[ ] from new hampshire, john langdon and paine wingate. from massachusetts, caleb strong. from connecticut, william s. johnson and oliver ellsworth. from pennsylvania, william maclay and robert morris. from georgia, william few. the members present not being a quorum, they adjourned from day to day, until wednesday, march . when the same members being present as on the th instant, it was agreed that a circular should be written to the absent members, requesting their immediate attendance. thursday, march . no additional members appearing, the members present adjourned from day to day, until wednesday, march . when no additional members appearing, it was agreed that another circular should be written to eight of the nearest absent members, particularly desiring their attendance, in order to form a quorum. thursday, march . william paterson, from new jersey, appeared and took his seat. friday, march . no additional member appeared. saturday, march . richard bassett, from delaware, appeared and took his seat. a sufficient number of members to form a quorum not appearing, the members present adjourned from day to day, until saturday, march . jonathan elmer, from new jersey, appeared and took his seat. no other member appearing, an adjournment took place from day to day, until monday, april . richard henry lee, from virginia, then appearing, took his seat and formed a quorum of the whole senators of the united states. the credentials of the members present being read and ordered to be filed, the senate proceeded, by ballot, to the choice of a president for the sole purpose of opening and counting the votes for president of the united states. john langdon was elected. _ordered_, that mr. ellsworth inform the house of representatives that a quorum of the senate is formed; that a president is elected for the sole purpose of opening the certificates, and counting the votes of the electors of the several states, in the choice of a president and vice president of the united states; and that the senate is now ready, in the senate chamber, to proceed in the presence of the house, to discharge that duty; and that the senate have appointed one of their members to sit at the clerk's table, to make a list of the votes as they shall be declared; submitting it to the wisdom of the house to appoint one or more of their members for the like purpose. mr. ellsworth reported that he had delivered the message; and mr. boudinot, from the house of representatives, informed the senate that the house is ready forthwith to meet them, to attend the opening and counting of the votes of the electors of the president and vice president of the united states. the speaker and the members of the house of representatives attended in the senate chamber; and the president elected for the purpose of counting the votes, declared that the senate and house of representatives had met, and that he, in their presence, had opened and counted the votes of the electors for president and vice president of the united states, which were as follows: [transcriber's note: legend created to make table fit.] a = george washington, esq. b = john adams, esq. c = samuel huntingdon, esq. d = john jay, esq. e = john hancock, esq. f = robert h. harrison, esq. g = george clinton, esq. h = john rutledge, esq. i = john milton, esq. j = james armstrong, esq. k = edward telfair, esq. l = benjamin lincoln, esq. states. a b c d e f g h i j k l new hampshire, massachusetts, connecticut, new jersey, .. pennsylvania, .. .. delaware, .. .. maryland, .. .. .. .. virginia, .. .. south carolina, .. .. .. .. .. georgia, .. .. .. .. .. .. .. total, whereby it appeared that george washington, esq. was elected president, and john adams, esq. vice president of the united states of america. mr. madison, from the house of representatives, thus addressed the senate: mr. president: i am directed by the house of representatives to inform the senate, that the house have agreed that the notifications of the election of the president and of the vice president of the united states, should be made by such persons, and in such manner, as the senate shall be pleased to direct. and he withdrew. whereupon, the senate appointed charles thomson, esq. to notify george washington, esq. of his election to the office of president of the united states of america, and mr. sylvanus bourn, to notify john adams, esq. of his election to the office of vice president of the said united states. a letter was received from james duane, esq. enclosing resolutions of the mayor, aldermen, and commonalty, of the city of new york, tendering to congress the use of the city hall. james mathews was elected doorkeeper. tuesday, april . messrs. ellsworth, paterson, maclay, strong, lee, bassett, few, and wingate, were appointed a committee to bring in a bill for organizing the judiciary of the united states. messrs. ellsworth, lee, strong, maclay, and bassett, were appointed a committee to prepare rules for the government of the two houses in cases of conference, and to take under consideration the manner of electing chaplains, and to confer thereupon with a committee of the house of representatives. the same committee were also to prepare rules for conducting the business of the senate. wednesday, april . the senate proceeded to ballot for a secretary, and samuel alyne otis, esq. was elected. cornelius maxwell was appointed messenger. thursday, april . messrs. langdon, johnson, and few, were appointed a committee to make arrangements for receiving the president, and were empowered to confer with any committee of the house of representatives that may be appointed for that purpose. monday, april . ralph izard, from south carolina, charles carroll, from maryland, and george reed, from delaware, appeared and took their seats. the report of the committee to prepare rules for conducting the business of the senate was read, and ordered to lie for consideration. messrs. johnson, izard, and maclay, were appointed a committee to confer with any committee appointed on the part of the house of representatives, upon the future disposition of the papers in the office of the late secretary of congress, and report thereon. the committee appointed to make arrangements for receiving the president, were directed to settle the manner of receiving the vice president also. mr. carroll and mr. izard were added to the judiciary committee. tuesday, april . tristram dalton, from massachusetts, appeared and took his seat. a letter was written to the mayor of the city of new york, by the president of the senate, acknowledging the respect shown to the government, and accepting of the offer made by him of the city hall for the use of congress. monday, april . john henry, from maryland, and james gunn, from georgia, appeared and took their seats. messrs. strong and izard were appointed a committee to wait on the vice president, and conduct him to the senate chamber. tuesday, april . the committee appointed to conduct the vice president to the senate chamber, executed their commission, and mr. langdon, the vice president _pro tempore_, meeting the vice president on the floor of the senate chamber, addressed him as follows. sir: i have it in charge from the senate, to introduce you to the chair of this house; and, also, to congratulate you on your appointment to the office of vice president of the united states of america. [after which mr. langdon conducted the vice president to the chair, when the vice president addressed the senate in a speech of congratulation on the successful formation of the federal union, the adoption of the federal constitution, and the auspicious circumstances under which the new government came into operation, under the presidency of him who had led the american armies to victory, and conducted by those who had contributed to achieve independence.] friday, april . on motion, to reconsider the commission of the committee appointed the d instant, to report what titles shall be annexed to the offices of president and vice president. passed in the affirmative. on motion, that the following words, "what titles it will be proper to annex to the offices of president and of vice president of the united states; if any other than those given in the constitution," be struck out. passed in the negative. on motion, that the words "style or" before the word "title," be added. passed in the affirmative. saturday, april . the right reverend samuel provost was elected chaplain. a letter from charles thomson, esq., dated the th of april, , directed to the president of the senate, purporting his having delivered to general washington the certificate of his being elected president of the united states, was read, and ordered to be filed. the committee appointed to consider of the time, place, and manner, in which, and of the person by whom, the oath prescribed by the constitution shall be administered to the president of the united states, and to confer with a committee of the house appointed for that purpose, report: that the president hath been pleased to signify to them, that at any time or place which both houses may think proper to appoint, and any manner which shall appear most eligible to them, will be convenient and acceptable to him; that requisite preparations cannot probably be made before thursday next; that the president be on that day formally received by both houses in the senate chamber; that the representatives' chamber being capable of receiving the greater number of persons, that, therefore, the president do take the oath in that place, and in the presence of both houses. that, after the formal reception of the president in the senate chamber, he be attended by both houses to the representatives' chamber, and that the oath be administered by the chancellor of the state of new york. the committee farther report it as their opinion, that it will be proper that a committee of both houses be appointed to take order for conducting the business. read and accepted. whereupon, mr. lee, mr. izard, and mr. dalton, on the part of the senate, together with a committee that may be appointed on the part of the house of representatives, were empowered to take order for conducting the business. an order of the house of representatives, concurring in the appointment of a committee on their part to confer with a committee appointed on the th instant, on the part of the senate, to consider and report, "what style, &c., it will be proper to annex to the offices of president and vice president," was read, by which it appeared, that mr. benson, mr. ames, mr. madison, mr. carroll, and mr. sherman, were appointed on the part of the house. monday, april . the committee appointed to take order for conducting the ceremonial of the formal reception, &c., of the president, reported: that it appears to them more eligible that the oath should be administered to the president in the outer gallery adjoining the senate chamber, than in the representatives' chamber, and therefore, submit to the respective houses the propriety of authorizing their committee to take order as to the place where the oath shall be administered to the president, the resolution of saturday assigning the representatives' chamber as the place, notwithstanding. read and accepted. _resolved_, that after the oath shall have been administered to the president, he, attended by the vice president, and members of the senate, and house of representatives, proceed to st. paul's chapel, to hear divine service, to be performed by the chaplain of congress already appointed. sent to the house of representatives for concurrence. tuesday, april . received from the house of representatives, the report of a joint committee on the ceremonial to be observed in administering the oath, &c., to the president; and a bill to regulate the time and manner of administering certain oaths. the report was read and ordered to lie on the table; and the bill received its first reading. thursday, april . mr. lee, in behalf of the committee appointed to take order for conducting the ceremonial of the formal reception, &c., of the president of the united states, having informed the senate that the same was adjusted, the house of representatives were notified that the senate were ready to receive them in the senate chamber, to attend the president of the united states, while taking the oath required by the constitution. whereupon, the house of representatives, preceded by their speaker, came into the senate chamber, and took the seats assigned them, and the joint committee, preceded by their chairman, agreeably to order, introduced the president of the united states to the senate chamber, where he was received by the vice president, who conducted him to the chair, when the vice president informed him, that "the senate, and house of representatives of the united states, were ready to attend him to take the oath required by the constitution, and that it would be administered by the chancellor of the state of new york." to which the president replied, he was ready to proceed; and being attended to the gallery in front of the senate chamber, by the vice president and senators, the speaker and representatives, and the other public characters present, the oath was administered. after which, the chancellor proclaimed, "_long live george washington, president of the united states_." the president, having returned to his seat, after a short pause arose, and addressed the senate and house of representatives as follows:[ ] _fellow-citizens of the senate, and of the house of representatives:_ among the vicissitudes incident to life, no event could have filled me with greater anxieties than that of which the notification was transmitted by your order, and received on the th day of the present month. on the one hand, i was summoned by my country, whose voice i can never hear but with veneration and love, from a retreat which i had chosen with the fondest predilection, and, in my flattering hopes, with an immutable decision, as the asylum of my declining years: a retreat which was rendered every day more necessary, as well as more dear to me, by the addition of habit to inclination, and of frequent interruptions in my health, to the gradual waste committed on it by time. on the other hand, the magnitude and difficulty of the trust to which the voice of my country called me, being sufficient to awaken in the wisest and most experienced of her citizens a distrustful scrutiny into his qualifications, could not but overwhelm with despondence one, who, inheriting inferior endowments from nature, and unpractised in the duties of civil administration, ought to be peculiarly conscious of his own deficiencies. in this conflict of emotions, all i dare aver is, that it has been my faithful study to collect my duty from a just appreciation of every circumstance by which it might be effected. all i dare hope is that if, in executing this task, i have been too much swayed by a grateful remembrance of former instances, or by an affectionate sensibility to this transcendent proof of the confidence of my fellow-citizens, and have thence too little consulted my incapacity as well as disinclination for the weighty and untried cares before me, my error will be palliated by the motives which misled me, and its consequences be judged by my country, with some share of the partiality in which they originated. * * * * * to the preceding observations i have one to add, which will be most properly addressed to the house of representatives. it concerns myself, and will, therefore, be as brief as possible. when i was first honored with a call into the service of my country, then on the eve of an arduous struggle for its liberties, the light in which i contemplated my duty required that i should renounce every pecuniary compensation. from this resolution i have in no instance departed. and being still under the impressions which, produced it, i must decline, as inapplicable to myself, any share in the personal emoluments which may be indispensably included in a permanent provision for the executive department; and must accordingly pray that the pecuniary estimates for the station in which i am placed may, during my continuance in it, be limited to such actual expenditures as the public good may be thought to require. having thus imparted to you my sentiments, as they have been awakened by the occasion which brings us together, i shall take my present leave; but not without resorting once more to the benign parent of the human race, in humble supplication, that since he has been pleased to favor the american people with opportunities for deliberating in perfect tranquillity, and dispositions for deciding with unparalleled unanimity on a form of government for the security of their union, and the advancement of their happiness, so his divine blessing may be equally conspicuous in the enlarged views, the temperate consultations, and the wise measures, on which the success of this government must depend. g. washington. _april , ._ the president, the vice president, the senate, and house of representatives, &c., then proceeded to st. paul's chapel, where divine service was performed by the chaplain of congress, after which the president was reconducted to his house by the committee appointed for that purpose. the vice president and senate returned to the senate chamber; and, upon motion, unanimously agreed, that a committee of three should be appointed to prepare an answer to the president's speech. mr. johnson, mr. paterson, and mr. carroll, were elected. thursday, may . the committee appointed to confer with such committee as might be appointed on the part of the house of representatives, to report what style or titles it will be proper to annex to the offices of president and of vice president of the united states, if any other than those given in the constitution, reported. which report was ordered to lie for consideration. the committee appointed to prepare an answer to the president's speech, delivered to the senate and house of representatives of the united states, reported as follows: sir: we, the senate of the united states, return you our sincere thanks for your excellent speech delivered to both houses of congress; congratulate you on the complete organization of the federal government; and felicitate ourselves and our fellow-citizens on your elevation to the office of president; an office highly important by the powers constitutionally annexed to it, and extremely honorable from the manner in which the appointment is made. the unanimous suffrage of the elective body in your favor, is peculiarly expressive of the gratitude, confidence, and affection of the citizens of america, and is the highest testimonial at once of your merit and their esteem. we are sensible, sir, that nothing but the voice of your fellow-citizens could have called you from a retreat, chosen with the fondest predilection, endeared by habit, and consecrated to the repose of declining years. we rejoice, and with us all america, that, in obedience to the call of our common country, you have returned once more to public life. in you all parties confide; in you all interests unite; and we have no doubt that your past services, great as they have been, will be equalled by your future exertions; and that your prudence and sagacity as a statesman will tend to avert the dangers to which we are exposed, to give stability to the present government, and dignity and splendor to that country, which your skill and valor, as a soldier, so eminently contributed to raise to independence and empire. when we contemplate the coincidence of circumstances, and wonderful combination of causes, which gradually prepared the people of this country for independence; when we contemplate the rise, progress, and termination of the late war, which gave them a name among the nations of the earth; we are, with you, unavoidably led to acknowledge and adore the great arbiter of the universe, by whom empires rise and fall. a review of the many signal instances of divine interposition in favor of this country claims our most pious gratitude; and permit us, sir, to observe, that, among the great events which have led to the formation and establishment of a federal government, we esteem your acceptance of the office of president as one of the most propitious and important. in the execution of the trust reposed in us, we shall endeavor to pursue that enlarged and liberal policy to which your speech so happily directs. we are conscious that the prosperity of each state is inseparably connected with the welfare of all, and that, in promoting the latter, we shall effectually advance the former. in full persuasion of this truth, it shall be our invariable aim to divest ourselves of local prejudices and attachments, and to view the great assemblage of communities and interests committed to our charge with an equal eye. we feel, sir, the force, and acknowledge the justness of the observation, that the foundation of our national policy should be laid in private morality. if individuals be not influenced by moral principles, it is in vain to look for public virtue; it is, therefore, the duty of legislators to enforce, both by precept and example, the utility, as well as the necessity, of a strict adherence to the rules of distributive justice. we beg you to be assured that the senate will, at all times, cheerfully co-operate in every measure which may strengthen the union, conduce to the happiness, or secure and perpetuate the liberties of this great confederated republic. we commend you, sir, to the protection of almighty god, earnestly beseeching him long to preserve a life so valuable and dear to the people of the united states; and that your administration may be prosperous to the nation, and glorious to yourself. read and accepted; and _ordered_, that the vice president should affix his signature to the address, in behalf of the senate. friday, may . the report of the committee appointed to determine "what style or title it will be proper to annex to the offices of president and vice president of the united states, if any other than those given in the constitution;" and to confer with a committee of the house of representatives appointed for the same purpose, was considered, and disagreed to. the question was taken, "whether the president of the united states shall be addressed by the title of _his excellency_?" and it passed in the negative. on motion that a committee of three be appointed to consider and report under what title it will be proper for the senate to address the president of the united states, mr. lee, mr. ellsworth, and mr. johnson, were elected. saturday, may . a message from the house of representatives informed the senate that they had accepted the report of the committee appointed to consider what style or title it will be proper to annex to the offices of president and vice president of the united states, if any other than those given in the constitution. _ordered_, that mr. few, mr. maclay, and mr. strong, be a committee to view the apartments in the city hall, and to confer with any committee that may be appointed by the house of representatives for that purpose, and report how the same shall be appropriated. the committee appointed to consider under what title it will be proper for the senate to address the president of the united states, reported; the consideration of which was postponed until monday next. the secretary was charged with a message to the house of representatives, with the order of senate passed the th instant, on the mode adopted by the senate in receiving communications from that house. _ordered_, that mr. lee, mr. ellsworth, and mr. johnson, be a committee to confer with any committee to be appointed by the house of representatives, on the difference of opinion now subsisting between the two houses, respecting the title of the president of the united states; and, on motion for reconsideration, the instruction to the committee was agreed to, as follows: "that they consider and report under what title it will be proper for the president of the united states in future to be addressed, and confer thereon with such committee as the house of representatives may appoint for that purpose." the secretary carried to the house of representatives the appointment of a committee, on the part of the senate, to view the rooms in the city hall, and to confer upon their appropriation; the rejection of the report of the committee appointed to consider what style, &c., it will be proper to annex to the offices of president and of vice president; and the appointment of a committee on the part of the senate to confer on a title under which it will be proper to address the president of the united states. monday, may . _ordered_, that the consideration of the report of the committee upon "the title by which it will be proper for the senate to address the president," be postponed until tuesday next. tuesday, may . _ordered_, that the committee appointed the th of may, to consider "by what title it will be proper for the senate to address the president of the united states", be instructed to confer with the committee of the house of representatives, agreeably to the proposition in their message of this day. a motion for the committee, appointed to address the president, to proceed, was postponed to thursday next. thursday, may . the committee, appointed the th instant, to determine "under what title it will be proper for the senate to address the president," and to confer with a committee of the house of representatives "upon the disagreeing votes of the senate and house," informed the senate that they had conferred with a committee of the house of representatives, but could not agree upon a report. the committee appointed the th instant, "to consider and report under what title it will be proper for the senate to address the president of the united states of america," reported: that, in the opinion of the committee, it will be proper thus to address the president: "_his highness, the president of the united states of america, and protector of their liberties_." which report was postponed; and the following resolve was agreed to, to wit: from a decent respect for the opinion and practice of civilized nations, whether under monarchical or republican forms of government, whose custom is to annex titles of respectability to the office of their chief magistrate; and that, on intercourse with foreign nations, a due respect for the majesty of the people of the united states may not be hazarded by an appearance of singularity, the senate have been induced to be of opinion, that it would be proper to annex a respectable title to the office of president of the united states; but, the senate, desirous of preserving harmony with the house of representatives, where the practice lately observed in presenting an address to the president was without the addition of titles, think it proper, for the present, to act in conformity with the practice of that house: therefore, _resolved_, that the present address be "_to the president of the united states_," without addition of title. a motion was made to strike out the preamble as far as the words "but the senate;" which passed in the negative: and on motion for the main question, it passed in the affirmative. the committee appointed to consider and report a mode of carrying into effect the provision in the second clause of the third section of the first article of the constitution, reported; whereupon, _resolved_, that the senators be divided into three classes; the first to consist of mr. langdon, mr. johnson, mr. morris, mr. henry, mr. izard, and mr. gunn; the second of mr. wingate, mr. strong, mr. paterson, mr. bassett, mr. lee, mr. butler, and mr. few; and the third of mr. dalton, mr. ellsworth, mr. elmer, mr. maclay, mr. read, mr. carroll, and mr. grayson. that three papers of an equal size, numbered , , and , be, by the secretary, rolled up and put into a box, and drawn by mr. langdon, mr. wingate, and mr. dalton, in behalf of the respective classes, in which each of them are placed; and that the classes shall vacate their seats in the senate, according to the order of numbers drawn for them, beginning with no. . and that, when senators shall take their seats from states that have not yet appointed senators, they shall be placed by lot in the foregoing classes, but in such manner as shall keep the classes as nearly equal as may be in numbers. the committee appointed to confer with a committee of the house of representatives, in preparing proper rules to be established for the enrolment, &c. of the acts of congress, reported; which report was ordered to lie for consideration. _ordered_, that the committee appointed to draft an answer to the president's speech, wait on him, and request him to appoint the time when it will be agreeable to receive the address of the senate, at his own house. friday, may . the committee appointed to draft an answer to the president's speech further reported; whereupon it was _agreed_, that the senate should wait on the president at his own house on monday next, at a quarter after o'clock, and that the vice president then present the address of the senate, as agreed to on the th instant. the senate proceeded to determine the classes, agreeably to the resolve of yesterday, on the mode of carrying into effect the provision of the second clause of the third section of the first article of the constitution; and the numbers being drawn, the classes were determined as follows: lot no. , drawn by mr. dalton, contained mr. dalton, mr. ellsworth, mr. elmer, mr. maclay, mr. read, mr. carroll, and mr. grayson; whose seats shall, accordingly, be vacated in the senate at the expiration of the second year. lot no. . drawn by mr. wingate, contained mr. wingate, mr. strong, mr. paterson, mr. bassett, mr. lee, mr. butler, and mr. few; whose seats shall, accordingly, be vacated in the senate at the expiration of the fourth year. lot no. , drawn by mr. langdon, contained mr. langdon, mr. johnson, mr. morris, mr. henry, mr. izard, and mr. gunn; whose seats shall, accordingly, be vacated in the senate at the expiration of the sixth year. monday, may . agreeably to the order of the th instant, the senate waited on the president of the united states at his own house, when the vice president, in their name, delivered to the president the address agreed to on the th instant. to which the president of the united states was pleased to make the following reply: gentlemen: i thank you for your address, in which the most affectionate sentiments are expressed in the most obliging terms. the coincidence of circumstances which led to this auspicious crisis, the confidence reposed in me by my fellow-citizens, and the assistance i may expect from counsels which will be dictated by an enlarged and liberal policy, seem to presage a more prosperous issue to my administration than a diffidence of my abilities had taught me to anticipate. i now feel myself inexpressibly happy in a belief that heaven, which has done so much for our infant nation, will not withdraw its providential influence before our political felicity shall have been completed, and in a conviction that the senate will at all times co-operate in every measure which may tend to promote the welfare of this confederated republic. thus supported by a firm trust in the great arbiter of the universe, aided by the collective wisdom of the union, and imploring the divine benediction on our joint exertions in the service of our country, i readily engage with you in the arduous but pleasing task of attempting to make a nation happy. g. washington. thursday, may . william grayson, from virginia, appeared and took his seat. _resolved_, that all bills on a second reading shall be considered by the senate in the same manner as if the senate were in a committee of the whole, before they shall be taken up and proceeded on by the senate, agreeably to the standing rules, unless otherwise ordered. monday, may . the senate to-day, for the first time, entered upon executive business, having received from the president of the united states a communication covering a report from the secretary of war, on the negotiations of the governor of the western territory with certain northern and north-western indians, and the treaties made in consequence thereof at fort harmar, on the th of january, , which was read, and ordered to lie on the table. thursday, may . the senate proceeded in the consideration of the bill for laying a duty on goods, wares and merchandises imported into the united states; and, after debate, adjourned. wednesday, june . _ordered_, that mr. langdon administer the oath to the vice president; which was done accordingly. and the vice president administered the oath according to law, to the following members: to messrs. langdon, wingate, strong, dalton, johnson, ellsworth, paterson, maclay, morris, read, bassett, carroll, henry, lee, grayson, izard, few, gunn. the same oath was, by the vice president, administered to the secretary, together with the oath of office. monday, june . pierce butler, from south carolina, appeared and took his seat. the vice president administered the oath to mr. butler. tuesday, june . the senate entered on executive business. a communication from the president informed them that mr. jefferson wished to return home, and he proposed william short, esq. to take his place as minister to france. laid on the table. wednesday, june . the senate went into executive business. they examined into the fitness of mr. short to supply the place of mr. jefferson, but came to no conclusion. thursday, june . the senate went into executive business, and confirmed the appointment of mr. short to take charge of our affairs at the court of france, during the absence of the minister. thursday, june . the senate proceeded to the consideration of the bill for establishing an executive department, to be denominated the department of foreign affairs; which was read the first time, and ordered to lie for consideration. friday, july . on motion, that, on the final question upon a bill or resolve, any member shall have a right to enter his protest or dissent on the journal, with reasons in support of such dissent, provided the same be offered within two days after the determination on such final question: passed in the negative. tuesday, july . the senate entered on executive business, and _ordered_, that the secretary of foreign affairs attend the senate to-morrow, and bring with him such papers as are requisite to give full information relative to the consular convention between france and the united states. wednesday, july . the senate were to-day mostly engaged in executive business. the secretary of foreign affairs attended, agreeably to order, and made the necessary explanations; and the following resolution was entered into.[ ] saturday, july . rufus king, from new york, appeared, and took his seat. monday, july . philip schuyler, from new york, appeared, and took his seat. tuesday, july . on motion, the senators from the state of new york proceeded to draw lots for their classes, in conformity to the resolve of the th of may; and two lots, no. , and a blank, being, by the secretary, rolled up and put into the box, mr. schuyler drew blank; and mr. king having drawn no. , his seat shall accordingly be vacated in the senate at the expiration of the sixth year. the secretary proceeded to put two other lots into the box, marked nos. and ; and mr. schuyler having drawn lot no. , his seat shall accordingly be vacated in the senate at the expiration of the second year. monday, august . the senate entered on executive business. the president communicated to them a list of about one hundred appointments as collectors, naval officers, and surveyors. the senate advised and consented to about one-half the list; the rest lay till to-morrow. tuesday, august . a message from the house of representatives brought up a bill for making compensation to the president and vice president of the united states, and desired the concurrence of the senate therein; together with the appointment of messrs. wadsworth, carroll, and hartley, a committee, to join with a committee of the senate to be appointed for the purpose, "to consider of and report when it will be convenient and proper that an adjournment of the present session of congress should take place; and to consider and report such business, now before congress, necessary to be finished before the adjournment, and such as may be conveniently postponed to the next session; and, also, to consider and report such matters, not now before congress, but which it will be necessary should be considered and determined by congress before an adjournment." the senate again entered on executive business, and advised and confirmed all the remainder of the list of appointments presented yesterday, one excepted. friday, august . the senate, in the absence of the vice president, proceeded to elect a president _pro tempore_; and the votes being collected and counted, the honorable john langdon was unanimously appointed. a message from the president of the united states, by general knox: _gentlemen of the senate:_ the business which has hitherto been under the consideration of congress has been of so much importance, that i was unwilling to draw their attention from it to any other subject. but the disputes which exist between some of the united states and several powerful tribes of indians, within the limits of the union, and the hostilities which have, in several instances, been committed on the frontiers, seem to require the immediate interposition of the general government. i have, therefore, directed the several statements and papers which have been submitted to me on this subject, by general knox, to be laid before you for your information. while the measures of government ought to be calculated to protect its citizens from all injury and violence, a due regard should be extended to those indian tribes whose happiness, in the course of events, so materially depends on the national justice and humanity of the united states. if it should be the judgment of congress that it would be most expedient to terminate all differences in the southern district, and to lay the foundation for future confidence, by an amicable treaty with the indian tribes in that quarter, i think proper to suggest the consideration of the expediency of instituting a temporary commission for that purpose, to consist of three persons, whose authority should expire with the occasion. how far such a measure, unassisted by posts, would be competent to the establishment and preservation of peace and tranquillity on the frontiers, is also a matter which merits your serious consideration. geo. washington. new york, _august , _. the above message was ordered to lie for consideration.[ ] mr. morris, in behalf of the committee on the bill for allowing a compensation to the president and vice president of the united states, reported an amendment, to wit: to expunge, in the provision for the vice president, "five thousand dollars," and insert "six thousand dollars." on motion to reduce the provision for the president of the united states, from "twenty-five thousand" to "twenty thousand dollars:" passed in the negative. on motion to make the provision for the vice president eight thousand dollars, instead of five thousand dollars: passed in the negative. the senate entered on executive business. the following message from the president was laid before them: _gentlemen of the senate:_ my nomination of benjamin fishbourn for the place of naval officer of the port of savannah not having met with your concurrence, i now nominate lachlan mcintosh for that office.[ ] whatever may have been the reasons which induced your dissent, i am persuaded they were such as you deemed sufficient. permit me to submit to your consideration whether, on occasions where the propriety of nominations appears questionable to you, it would not be expedient to communicate that circumstance to me, and thereby avail yourselves of the information which led me to make them, and which i would with pleasure lay before you. probably my reasons for nominating mr. fishbourn may tend to show that such a mode of proceeding, in such cases, might be useful. i will, therefore, detail them. first. while colonel fishbourn was an officer, in actual service, and chiefly under my own eye, his conduct appeared to me irreproachable; nor did i ever hear any thing injurious to his reputation as an officer or a gentleman. at the storming of stony point, his behavior was represented to have been active and brave, and he was charged by his general to bring the account of that success to the head quarters of the army. secondly. since his residence in georgia, he has been repeatedly elected to the assembly as a representative of the county of chatham, in which the port of savannah is situated, and sometimes of the counties of glynn and camden; he has been chosen a member of the executive council of the state, and has lately been president of the same; he has been elected by the officers of the militia, in the county of chatham, lieutenant-colonel of the militia in that district; and, on a very recent occasion, to wit, in the month of may last, he has been appointed by the council (on the suspension of the late collector) to an office in the port of savannah, nearly similar to that for which i nominated him; which office he actually holds at this time. to these reasons for nominating mr. fishbourn, i might add that i received private letters of recommendation, and oral testimonials in his favor, from some of the most respectable characters in that state; but as they were secondary considerations with me, i do not think it necessary to communicate them to you. it appeared, therefore, to me, that mr. fishbourn must have enjoyed the _confidence_ of the militia officers, in order to have been elected to a military rank; the _confidence_ of the freemen, to have been elected to the assembly; the _confidence_ of the assembly, to have been selected for the council; and the _confidence_ of the council, to have been appointed collector of the port of savannah. geo. washington. new york, _august , _. friday, august . the senate entered on executive business. they proceeded to consider the report made by mr. izard, yesterday, as follows: the committee appointed to wait on the president of the united states, and confer with him on the mode of communication proper to be pursued between him and the senate, in the formation of treaties, and making appointments to offices, reported: which report was agreed to. whereupon, _resolved_, that when nominations shall be made in writing by the president of the united states to the senate, a future day shall be assigned, unless the senate unanimously direct otherwise, for taking them into consideration; that when the president of the united states shall meet the senate in the senate chamber, the president of the senate shall have a chair on the floor, be considered as at the head of the senate, and his chair shall be assigned to the president of the united states; that when the senate shall be convened by the president of the united states to any other place, the president of the senate and senators shall attend at the place appointed. the secretary of the senate shall also attend to take the minutes of the senate. that all questions shall be put by the president of the senate, either in the presence or absence of the president of the united states; and the senators shall signify their assent or dissent by answering _viva voce_, aye or no.[ ] another message was received from the president, viz: _gentlemen of the senate:_ the president of the united states will meet the senate, in the senate chamber, at half-past eleven o'clock to-morrow, to advise with them on the terms of the treaty to be negotiated with the southern indians. geo. washington. new york, _august , _. saturday, august . the senate again entered on executive business. the president of the united states came into the senate chamber, attended by general knox, and laid before the senate the following statement of facts, with the questions thereto annexed, for their advice and consent: [here follows the statement of facts, and the questions thereto annexed, and the answer of the senate to each question.] monday, august . the senate was to-day wholly engaged in executive business. the president of the united states being present in the senate chamber, attended by general knox, the senate resumed the consideration of the state of facts and questions thereto annexed, laid before them by the president of the united states, on saturday last. and the first question, viz: "in the present state of affairs between north carolina and the united states, will it be proper to take any other measures for redressing the injuries of the cherokees than the one herein suggested?" being put, was answered in the negative.[ ] the third question, viz: "if the commissioners shall adjudge that the creek nation was fully represented at the three treaties with georgia, and that the cessions of land were obtained with the full understanding and free consent of the acknowledged proprietors, and that the said treaties ought to be considered as just and equitable: in this case, shall the commissioners be instructed to insist on a formal renewal and confirmation thereof? and, in case of a refusal, shall they be instructed to inform the creeks that the arms of the union shall be employed to compel them to acknowledge the justice of the said cessions?" was wholly answered in the affirmative. the fourth question, and its four subdivisions, viz: "but if the commissioners shall adjudge that the said treaties were formed with an inadequate or unauthorized representation of the creek nation, or that the treaties were held under circumstances of constraint or unfairness of any sort, so that the united states could not, with justice and dignity, request or urge a confirmation thereof: in this case, shall the commissioners, considering the importance of the oconee lands to georgia, be instructed to use their highest exertions to obtain a cession of said lands? if so, shall the commissioners be instructed, if they cannot obtain the said cessions on better terms, to offer for the same, and for the further great object of attaching the creeks to the government of the united states, the following conditions: " st. a compensation in money or goods, to the amount of ---- dollars; the said amount to be stipulated to be paid by georgia at the period which shall be fixed, or in failure thereof, by the united states. " d. a secure port on the altamaha or on st. mary's river, or at any other place between the same, as may be mutually agreed to by the commissioners and the creeks. " d. certain pecuniary considerations to some, and honorary military distinctions to other influential chiefs, on their taking oaths of allegiance to the united states. " th. a solemn guarantee by the united states to the creeks of their remaining territory, and to maintain the same, if necessary, by a line of military posts," was wholly answered in the affirmative. the blank to be filled at the discretion of the president of the united states. the fifth question, viz: "but if all offers should fail to induce the creeks to make the desired cessions to georgia, shall the commissioners make it an ultimatum?" was answered in the negative. the sixth question being divided, the first part, containing as follows, viz: "if the said cessions shall not be made an ultimatum, shall the commissioners proceed and make a treaty, and include the disputed lands within the limits which shall be assigned to the creeks?" was answered in the negative. the remainder, viz: "if not, shall a temporary boundary be marked, making the oconee the line, and the other parts of the treaty be concluded?" "in this case, shall a secure port be stipulated, and the pecuniary and honorary considerations granted?" "in other general objects shall the treaties formed at hopewell, with the cherokees, chickasaws, and choctaws, be the basis of a treaty with the creeks?" were all answered in the affirmative. on the seventh question, viz: "shall the sum of twenty thousand dollars, appropriated to indian expenses and treaties, be wholly applied, if necessary, to a treaty with the creeks? if not, what proportion?" it was agreed to advise and consent to appropriate the whole sum, if necessary, at the discretion of the president of the united states. the president of the united states withdrew from the senate chamber, and the vice president put the question of adjournment; to which the senate agreed. wednesday, september . the following message from the president of the united states was received by the secretary of war. _gentlemen of the senate:_ the governor of the western territory has made a statement to me of the reciprocal hostilities of the wabash indians, and the people inhabiting the frontiers bordering on the river ohio, which i herewith lay before congress. the united states, in congress assembled, by their acts of the st day of july, , and of the th august, , made a provisional arrangement for calling forth the militia of virginia and pennsylvania in the proportions therein specified. as the circumstances which occasioned the said arrangement continue nearly the same, i think proper to suggest to your consideration the expediency of making some temporary provision for calling forth the militia of the united states for the purposes stated in the constitution, which would embrace the cases apprehended by the governor of the western territory. geo. washington. _september_ , . thursday, september . the senate entered on executive business. the following message was received from the president of the united states: _gentlemen of the senate:_ it doubtless is important that all treaties and compacts formed by the united states with other nations, whether civilized or not, should be made with caution and executed with fidelity. it is said to be the general understanding and practice of nations, as a check on the mistakes and indiscretions of ministers or commissioners, not to consider any treaty negotiated and signed by such officers as final and conclusive, until ratified by the sovereign or government from whom they derive their powers. this practice has been adopted by the united states respecting their treaties with european nations, and i am inclined to think it would be advisable to observe it in the conduct of our treaties with the indians; for though such treaties being, on their part, made by their chiefs or rulers, need not be ratified by them, yet, being formed on our part by the agency of subordinate officers, it seems to be both prudent and reasonable that their acts should not be binding on the nation until approved and ratified by the government. it strikes me that this point should be well considered and settled, so that our national proceedings, in this respect, may become uniform, and be directed by fixed and stable principles. the treaties with certain indian nations, which were laid before you with my message of the th may last, suggested two questions to my mind, viz: st, whether those treaties were to be considered as perfected, and, consequently, as obligatory, without being ratified? if not, then, dly, whether both, or either, and which of them, ought to be ratified? on these questions i request your opinion and advice. you have, indeed, advised me "_to execute and enjoin an observance of_" the treaty with the wyandots, &c. you, gentlemen, doubtless intended to be clear and explicit; and yet, without further explanation, i fear i may misunderstand your meaning: for if by my _executing_ that treaty you mean that i should make it (in a more particular and immediate manner than it now is) the act of government, then it follows that i am to ratify it. if you mean by my _executing it_ that i am to see that it be carried into effect and operation, then i am led to conclude, either that you consider it as being perfect and obligatory in its present state, and therefore to be executed and observed; or that you consider it to derive its completion and obligation from the silent approbation and ratification which my proclamation may be construed to imply. although i am inclined to think that the latter is your intention, yet it certainly is best that all doubts respecting it be removed. permit me to observe, that it will be proper for me to be informed of your sentiments relative to the treaty with the six nations, previous to the departure of the governor of the western territory; and therefore i recommend it to your early consideration. geo. washington. _september_ , . _ordered_, that the president's message be committed to messrs. carroll, king, and read. friday, september . the senate entered on executive business. mr. carroll, on behalf of the committee appointed yesterday, reported as follows: the committee, to whom was referred a message from the president of the united states of the th september, , report: that the signature of treaties with the indian nations has ever been considered as a full completion thereof, and that such treaties have never been solemnly ratified by either of the contracting parties, as hath been commonly practised among the civilized nations of europe: wherefore the committee are of opinion that the formal ratification of the treaty concluded at fort harmar on the th day of january, , between arthur st. clair, governor of the western territory, on the part of the united states, and the sachems and warriors of the wyandot, delaware, ottawa, chippewa, pattiwattima, and sac nations, is not expedient or necessary; and that the resolve of the senate of the th september, , respecting the said treaty, authorizes the president of the united states to enjoin a due observance thereof. tuesday, september . the following communications from the president were received by mr. jay: _gentlemen of the senate:_ his most christian majesty, by a letter dated the th of june last, addressed to the president and members of the general congress of the united states of north america, announces the much lamented death of his son, the dauphin. the generous conduct of the french monarch and nation towards this country renders every event that may affect his or their prosperity interesting to us; and i shall take care to assure him of the sensibility with which the united states participate in the affliction which a loss so much to be regretted must have occasioned, both to him and to them. geo. washington. _september_ . _gentlemen of the senate:_ having been yesterday informed by a joint committee of both houses of congress, that they had agreed to a recess, to commence this day, and to continue until the first monday of january next, i take the earliest opportunity of acquainting you that, considering how long and laborious this session has been, and the reasons which, i presume, have produced this resolution, it does not appear to me expedient to recommend any measures to their consideration at present, or now to call your attention, gentlemen, to any of those matters in my department which require your advice and consent, and yet remain to be despatched. geo. washington. _september_ , . a message from the house of representatives informed the senate that the house of representatives had finished the business of the session, and were ready to adjourn, agreeably to the order of the two houses of congress. the business of the session being brought to a close, the vice president, agreeably to the resolve of the two houses on the th instant, adjourned the senate to the first monday in january next, then to meet at the city hall in new york. first congress list of senators. _new hampshire._--john langdon, paine wingate. _massachusetts._--caleb strong, tristram dalton. _connecticut._--william s. johnson, oliver ellsworth. _new york._--rufus king, philip schuyler. _new jersey._--william paterson, jonathan elmer. _pennsylvania._--william maclay, robert morris. _delaware._--richard bassett, george reed. _maryland._--charles carroll, john henry. _virginia._--richard henry lee, william grayson. _south carolina._--ralph izard, pierce butler. _georgia._--william few, james gunn. _north carolina._[ ]--benjamin hawkins, samuel johnston. _rhode island._[ ]--joseph stanton, jr., theodore foster. list of representatives. _new hampshire._--nicholas gilman, samuel livermore, abiel foster. _massachusetts._--george thatcher, fisher ames, george leonard, elbridge gerry, jonathan grout, benjamin goodhue, theodore sedgwick, george partridge. _connecticut._--benjamin huntington, jonathan trumbull, jeremiah wadsworth, roger sherman, jonathan sturges. _new york._--john lawrence, egbert benson, william floyd, peter sylvester, john hathorn, jeremiah van rensselaer. _new jersey._--elias boudinot, james schureman, lambert cadwalader, thomas sinnickson. _pennsylvania._--henry wynkoop, frederick augustus muhlenberg, daniel heister, thomas scott, george clymer, thomas fitzsimons, thomas hartley, peter muhlenberg. _delaware._--john vining. _maryland._--william smith, george gale, daniel carroll, joshua seney, michael jenifer stone, benjamin contee. _virginia._--alexander white, james madison, jr., john page, richard bland lee, samuel griffin, andrew moore, josiah parker, theodorick bland,[ ] isaac coles, john brown. _south carolina._--thomas tudor tucker, edanus burke, daniel huger, william smith, thomas sumter. _georgia._--abraham baldwin, james jackson, george mathews. _north carolina._[ ]--john steele, timothy bloodworth, hugh williamson, john baptist ashe, john sevier. _rhode island._[ ]--benjamin bourn. first congress.--first session. proceedings and debates in the house of representatives. wednesday, march , . this being the day fixed for the meeting of the new congress, the following members of the house of representatives appeared and took their seats, viz:[ ] _from massachusetts_, george thatcher, fisher ames, george leonard, and elbridge gerry. _from connecticut_, benjamin huntington, jonathan trumbull, and jeremiah wadsworth. _from pennsylvania_, frederick augustus muhlenberg, thomas hartley, peter muhlenberg, and daniel heister. _from virginia_, alexander white. _from south carolina_, thomas tudor tucker. a quorum of the members not being present, the house adjourned until to-morrow at eleven o'clock. thursday, march . several other members attended, viz: from new hampshire, nicholas gilman; from massachusetts, benjamin goodhue; from connecticut, roger sherman and jonathan sturges; and from pennsylvania, henry wynkoop; and no other members arriving, a quorum not being present, the house adjourned, from day to day, until the th instant. saturday, march . the following members took their seats, to wit: james madison, junior, john page, and richard bland lee, from virginia. a quorum not being yet present, the house adjourned, from day to day, until the th instant. tuesday, march . samuel griffin, from virginia, took his seat. wednesday, march . andrew moore, from virginia, took his seat. no other member appearing, the house adjourned, from day to day, until the d instant. monday, march . the following members appeared, to wit:-- from new jersey, elias boudinot; and from maryland, william smith. no additional member appeared on the th. wednesday, march . jonathan parker, from virginia, appeared and took his seat. no additional member arrived until the th instant. monday, march . george gale, from maryland, and theodorick bland, from virginia, appeared and took their seats. no additional member on the st instant. wednesday, april . two other members appeared, to wit: james schureman, from new jersey, and thomas scott, from pennsylvania, who, forming a quorum of the whole body, it was, on motion, _resolved_, that this house will proceed to the choice of a speaker by ballot. the house accordingly proceeded to ballot for a speaker, when it was found that a majority of the votes were in favor of frederick augustus muhlenberg, one of the representatives from pennsylvania. whereupon mr. muhlenberg was conducted to the chair, from whence he made his acknowledgments to the house for so distinguished an honor. the house then proceeded in the same manner to the appointment of a clerk, when it was found that mr. john beckley was elected. on motion, _ordered_, that the members do severally deliver in their credentials at the clerk's table. thursday, april . lambert cadwalader, from new jersey, appeared and took his seat. friday, april . george clymer, from pennsylvania, appeared and took his seat. saturday, april . george partridge, from massachusetts, appeared and took his seat. the house proceeded to the election of a doorkeeper, and assistant doorkeeper; when gifford dudley was chosen to the former, and thomas claxton to the latter office. monday, april . daniel carroll, from maryland, appeared and took his seat. _ordered_, that leave be given to bring in a bill to regulate the taking the oath or affirmation prescribed by the sixth article of the constitution; and that messrs. white, madison, trumbull, gilman, and cadwalader, do prepare and bring in the same. on motion, _resolved_, that the form of the oath to be taken by the members of this house, as required by the third clause of the sixth article of the constitution of government of the united states, be as followeth, to wit: "i, a b, a representative of the united states in the congress thereof, do solemnly swear (or affirm, as the case may be) in the presence of almighty god, that i will support the constitution of the united states. so help me god." a message from the senate, by mr. ellsworth. mr. speaker: i am charged by the senate to inform this house, that a quorum of the senate is now formed; that a president is elected for the sole purpose of opening the certificates and counting the votes of the electors of the several states, in the choice of a president and vice president of the united states; and that the senate is now ready in the senate chamber, to proceed, in presence of this house, to discharge that duty. i have it also in further charge to inform this house that the senate has appointed one of its members to sit at the clerk's table to make a list of the votes as they shall be declared, submitting it to the wisdom of this house to appoint one or more of its members for the like purpose. on motion, _resolved_, that mr. speaker, attended by the house, do now withdraw to the senate chamber, for the purpose expressed in the message from the senate; and that mr. parker and mr. heister be appointed on the part of this house, to sit at the clerk's table with the member of the senate, and make a list; of the votes, as the same shall be declared. mr. speaker accordingly left the chair, and attended by the house, withdrew to the senate chamber, and after some time returned to the house. mr. speaker resumed the chair. mr. parker and mr. heister then delivered in at the clerk's table a list of the votes of the electors of the several states in the choice of a president and vice president of the united states, as the same were declared by the president of the senate, in the presence of the senate and of this house, which was ordered to be entered on the journal.[ ] wednesday, april . two other members, to wit: jno. lawrence, from new york, and thomas fitzsimons, from pennsylvania, appeared and took their seats. _duties on imports._ on motion, the house resolved itself into a committee of the whole on the state of the union, mr. page in the chair. mr. madison.--i take the liberty, mr. chairman, at this early stage of the business, to introduce to the committee a subject, which appears to me to be of the greatest magnitude; a subject, sir, that requires our first attention, and our united exertions. no gentleman here can be unacquainted with the numerous claims upon our justice; nor with the impotency which prevented the late congress of the united states from carrying into effect the dictates of gratitude and policy. the union, by the establishment of a more effective government, having recovered from the state of imbecility that heretofore prevented a performance of its duty, ought, in its first act, to revive those principles of honor and honesty that have too long lain dormant. the deficiency in our treasury has been too notorious to make it necessary for me to animadvert upon that subject. let us content ourselves with endeavoring to remedy the evil. to do this a national revenue must be obtained; but the system must be such a one, that, while it secures the object of revenue, it shall not be oppressive to our constituents. happy it is for us that such a system is within our power; for i apprehend that both these objects may be obtained from an impost on articles imported into the united states. in pursuing this measure, i know that two points occur for our consideration. the first respects the general regulation of commerce; which, in my opinion, ought to be as free as the policy of nations will admit. the second relates to revenue alone; and this is the point i mean more particularly to bring into the view of the committee. not being at present possessed of sufficient materials for fully elucidating these points, and our situation admitting of no delay, i shall propose such articles of regulations only as are likely to occasion the least difficulty. the propositions made on this subject by congress in , having received, generally, the approbation of the several states of the union, in some form or other, seem well calculated to become the basis of the temporary system, which i wish the committee to adopt.[ ] i am well aware that the changes which have taken place in many of the states, and in our public circumstances, since that period, will require, in some degree, a deviation from the scale of duties then affixed: nevertheless, for the sake of that expedition which is necessary, in order to embrace the spring importations, i should recommend a _general_ adherence to the plan. this, sir, with the addition of a clause or two on the subject of tonnage, i will now read, and, with leave, submit it to the committee, hoping it may meet their approbation, as an expedient rendered eligible by the urgent occasion there is for the speedy supplies of the federal treasury, and a speedy rescue of our trade from its present anarchy. _resolved_, as the opinion of this committee, that the following duties ought to be levied on goods, wares, and merchandise, imported into the united states, viz: on rum, per gallon, ---- of a dollar; on all other spirituous liquors ----; on molasses ----; on madeira wine ----; on all other wines ----; on common bohea teas per lb. ----; on all other teas ----; on pepper ----; on brown sugar ----; on loaf sugar ----; on all other sugars ----; on cocoa and coffee ----; on all other articles ---- per cent. on their value at the time and place of importation. that there ought, moreover, to be levied on all vessels in which goods, wares, or merchandises shall be imported, the duties following, viz: on all vessels built within the united states, and belonging wholly to citizens thereof, at the rate of ---- per ton. on all vessels belonging wholly to the subjects of powers with whom the united states have formed treaties, or partly to the subjects of such powers, and partly to citizens of the said states, at the rate of ----. on all vessels belonging wholly or in part to the subjects of other powers, at the rate of ----.[ ] mr. boudinot.--the necessity of adopting some measure, like the one proposed by the honorable gentleman from virginia, is too apparent to need any argument in its support. the plan which he has submitted to the committee appears to be simple and sufficiently complete for the present purpose; i shall, therefore, for my own part, be content with it, and shall move you, sir, that the blanks be filled up in the manner they were recommended to be charged by congress in . my reason for this is, that those sums have been approved by the legislatures of every state represented on this floor, and of consequence must have been agreeable to the sense of our constituents at that time; and, i believe, nothing since has intervened to give us reason to believe they have made an alteration in their sentiments. mr. white.--i wish filling up the blanks may be deferred until the business is more matured; nor will this be attended with a loss of time, because the forms necessary to complete a bill will require so much as to give gentlemen leisure to consider the proper quantum of impost to be laid, as well on the enumerated articles as on the common mass of merchandise rated _ad valorem_; for, as was hinted by my colleague, something may have occurred to render an alteration in the sums recommended in in some degree necessary; and if so, time will be given to consider the subject with more attention in the progress of the bill, and no unnecessary delay can arise; wherefore, i move you, sir, that the committee now rise, report progress, and ask leave to sit again. mr. madison.--i do not consider it at this moment necessary to fill up the blanks, nor had i it in contemplation at the time i offered the propositions. i supposed that most of the gentlemen would wish time to think upon the principles generally, and upon the articles particularly; while others, who, from their situation and advantages in life, are more conversant on this subject, may be induced to turn their particular attention to a subject they are well able to do justice to, and to assist the committee with their knowledge and information; unless such gentlemen are now prepared and disposed to proceed in filling up the blanks, i shall second the motion for the committee's rising. thursday, april . egbert benson, from new york, and isaac coles, from virginia, appeared and took their seats. _duties on imports._ the house again resolved itself into a committee of the whole on the state of the union, mr. page in the chair. mr. lawrence.--the subject of the proposition laid before the committee by the honorable gentleman from virginia, (mr. madison,) will now, i presume, mr. chairman, recur for our deliberation. i imagine it to be of considerable importance, not only to the united states, but to every individual of the union. the object of the revenue alone would place it in this situation, and in this light i mean now to consider it. if i am not mistaken, the honorable mover of the plan viewed it as a temporary system, particularly calculated to embrace the spring importations; therefore, in order to discover whether the mode laid before you is well calculated to answer this end, it will be proper to consider its operation. the plan consists of certain distinct propositions; one part is intended to lay a specific sum on enumerated articles, the other a certain per cent. _ad valorem_: perhaps simplifying the system may be productive of happy consequences, and it strikes me that confusion and perplexity will be best avoided by such a measure; hence, it may be proper to lay a duty at a certain rate per cent. on the value of all articles, without attempting an enumeration of any; because, if we attempt to specify every article, it will expose us to a question which must require more time than can be spared, to obtain the object that appears to be in the view of the committee. a question, i say, sir, will arise, whether the enumeration embraces every article that will bear a duty, and whether the duty to be affixed is the proper sum the article is able to bear. on this head, sir, i believe that the committee have not materials sufficient to form even the basis of the system, beside being wholly incompetent to determine the rate most advantageous to the article of revenue, and most agreeable to the interest and convenience of our constituents. knowledge on these points can only be obtained by experience; but hitherto we have had none, at least of a general nature. the partial regulations made by the states, throw but little light on the subject, and its magnitude ought to induce us to use the greatest degree of caution. a system of the nature which i hinted at, will, in my opinion, be not only less complex and difficult in its formation, but likewise easier and more certain in its operation; because the more simple a plan of revenue is, the easier it becomes understood and executed: and it is, sir, an earnest wish of mine, that all our acts should partake of this nature. moreover, by adopting the plan i have mentioned, you will embrace the spring importation and give time for digesting and maturing one upon more perfect principles; and, as the proposed system is intended to be but a temporary one, _that_ i esteem to be best which requires the least time to form it. with great deference i have submitted these sentiments to the committee, as what occurred to me to be the better plan of the two; though, i must own, it is a subject on which i am not so fully informed as i wish to be, and therefore hope the indulgence of the committee in considering it. mr. fitzsimons.--i observe, mr. chairman, by what the gentlemen have said, who have spoken on the subject before you, that the proposed plan of revenue is viewed by them as a temporary system, to be continued only until proper materials are brought forward and arranged in more perfect form. i confess, sir, that i carry my views on this subject much further; that i earnestly wish such a one which, in its operation, will be some way adequate to our present situation, as it respects our agriculture, our manufactures, and our commerce. an honorable gentleman (mr. lawrence) has expressed an opinion that an enumeration of articles will operate to confuse the business. so far am i from seeing it in this point of view, that, on the contrary, i conceive it will tend to facilitate it. does not every gentleman discover that, when a particular article is offered to the consideration of the committee, he will be better able to give his opinion upon it than on an aggregate question? because the partial and convenient impost laid on such article by individual states is more or less known to every member in the committee. it is also well known that the amount of such revenue is more accurately calculated and better to be relied on, because of the certainty of collection, less being left to the officers employed in bringing it forward to the public treasury. it being my opinion that an enumeration of articles will tend to clear away difficulties, i wish as many to be selected as possible; for this reason i have prepared myself with an additional number, which i wish subjoined to those already mentioned in the motion on your table; among these are some calculated to encourage the productions of our country, and protect our infant manufactures; besides others tending to operate as sumptuary restrictions upon articles which are often termed those of luxury. the amendment i mean to offer is in these words: i shall read it in my place, and, if i am seconded, hand it to you for the consideration of the committee. _resolved_, as the opinion of this committee, that the following duties ought to be laid on goods, wares, and merchandise imported into the united states, to wit: [the articles enumerated for duty were beer, ale, and porter; beef, pork, butter, candles, cheese, soap, cider, boots, steel, cables, cordage, twine or pack thread, malt, nails, spikes, tacks, or brads; salt, tobacco, snuff, blank books, writing, printing, and wrapping paper; pasteboard, cabinet ware; buttons, saddles, gloves, hats, millinery, castings of iron, slit, or rolled iron; leather, shoes, slippers, and golo shoes; coach, chariot, and other four wheel carriages; chaise, solo, or other two wheel carriages; nutmegs, cinnamon, cloves, raisins, figs, currants, almonds.] this motion was seconded by mr. schureman. mr. white.--i shall not pretend to say that there ought not to be specific duties laid upon every one of the articles enumerated in the amendment just offered; but i am inclined to think, that entering so minutely into the detail, will consume too much of our time, and thereby lose us a greater sum than the additional impost on the last-mentioned articles will bring in; because there may be doubts whether many of them are capable of bearing an increased duty; but this, sir, is not the case with those mentioned in the motion of my colleague: for i believe it will be readily admitted on all sides, that such articles as rum, wines, and sugar, have the capacity of bearing an additional duty besides a per cent. _ad valorem_. his system appears to be simple, and its principles i conceive, are such as gentlemen are agreed upon, consequently a bill founded thereupon would pass this house in a few days; the operation of the law would commence early, and the treasury be furnished with money to answer the demands upon it. this law would continue until mature deliberation, ample discussion, and full information, enabled us to complete a perfect system of revenue: for, in order to charge specified articles of manufacture, so as to encourage our domestic ones, it will be necessary to examine the present state of each throughout the union. this will certainly be a work of labor and time, and will perhaps require more of each than the committee have now in their power. let us, therefore, act upon the principles which are admitted, and take in the most material and productive articles, leaving to a period of more leisure and information a plan to embrace the whole. mr. tucker.--in common with the other gentlemen on this floor, i consider the subject which engages our present deliberations as of very great importance as it relates to our agriculture, manufactures, and commerce; i also consider it of consequence that we should give full satisfaction to our constituents by our decision, be that whatever it may; and i think this most likely to be effected by establishing a permanent regulation, although in the interim, a temporary system may be expedient. i have no objection, sir, to go so far into the matter as to pass a law to collect an impost _ad valorem_, whilst it is understood to be but a temporary system; and likewise to lay a duty on such enumerated articles of importation as have been heretofore considered as proper ones by the congress of . so far, sir, the matter may be plain to us, and we run no hazard of doing any thing which may give dissatisfaction to any state in the union. the duties proposed by the congress of were, i believe, five per cent. on the value of all goods imported, and an additional duty on a few enumerated articles.[ ] this recommendation of congress has been so universally received by the several states, that i think we run no risk of giving umbrage to any by adopting the plan; but the other articles which have just been offered, are, i apprehend, to many of us so novel, and, at the same time, so important, as to make it hard to determine the propriety of taxing them in a few hours, or even in a few days. in order to preserve the peace and tranquillity of the union, it will become necessary that mutual deference and accommodation should take place on subjects so important as the one i have first touched upon. and, in order that this may take place, it is proper that gentlemen deliver their sentiments with freedom and candor. i have done this in a manner which i conceived it my duty to do, and shall just repeat that i wish to confine the question to that part of the motion made by the honorable gentleman from virginia, (mr. madison,) which respects laying a general impost on the value of all goods imported, and the small enumeration which precedes it: if it is in contemplation to do otherwise, i shall be under the necessity of moving for a division of the question. if i should lose this, and a high tonnage duty be insisted on, i shall be obliged to vote against the measure altogether; when, if the business is conducted on principles of moderation, i shall give my vote for it to a certain degree. mr. hartley.--if we consult the history of the ancient world, we shall see that they have thought proper, for a long time past, to give great encouragement to the establishment of manufactures, by laying such partial duties on the importation of foreign goods, as to give the home manufactures a considerable advantage in the price when brought to market. it is also well known to this committee, that there are many articles that will bear a higher duty than others, which are to remain in the common mass, and be taxed with a certain impost _ad valorem_. from this view of the subject i think it both politic and just that the fostering hand of the general government should extend to all those manufactures which will tend to national utility. i am therefore sorry that gentlemen seem to fix their mind to so early a period as ; for we very well know our circumstances are much changed since that time: we had then but few manufactures among us, and the vast quantities of goods that flowed in upon us from europe, at the conclusion of the war, rendered those few almost useless; since then we have been forced by necessity, and various other causes, to increase our domestic manufactures to such a degree as to be able to furnish some in sufficient quantity to answer the consumption of the whole union, while others are daily growing into importance. our stock of materials is, in many instances, equal to the greatest demand, and our artisans sufficient to work them up even for exportation. in these cases, i take it to be the policy of every enlightened nation to give their manufactures that degree of encouragement necessary to perfect them, without oppressing the other parts of the community; and under this encouragement, the industry of the manufacturer will be employed to add to the wealth of the nation. mr. madison.--from what has been suggested by the gentlemen that have spoken on the subject before us, i am led to apprehend we shall be under the necessity of travelling further into an investigation of principles than what i supposed would be necessary, or had in contemplation when i offered the propositions before you. i am sensible that there is great weight in the observation that fell from the honorable gentleman from south carolina, (mr. tucker,) that it will be necessary, on the one hand, to weigh and regard the sentiments of the gentlemen from the different parts of the united states; but, on the other hand, we must limit our consideration on this head, and, notwithstanding all the deference and respect we pay to those sentiments, we must consider the general interest of the union; for this is as much every gentleman's duty to consider as is the local or state interest--and any system of impost that this committee may adopt must be founded on the principles of mutual concession. gentlemen will be pleased to recollect, that those parts of the union which contribute more under one system than the other, are also those parts more thinly planted, and consequently stand most in need of national protection; therefore they will have less reason to complain of unequal burthens. there is another consideration; the states that are most advanced in population, and ripe for manufactures, ought to have their particular interests attended to in some degree. while these states retained the power of making regulations of trade, they had the power to protect and cherish such institutions; by adopting the present constitution, they have thrown the exercise of this power into other hands: they must have done this with an expectation that those interests would not be neglected here. in my opinion, it would be proper also for gentlemen to consider the means of encouraging the great staple of america, i mean agriculture; which i think may justly be styled the staple of the united states, from the spontaneous productions which nature furnishes, and the manifest advantage it has over every other object of emolument in this country. if we compare the cheapness of our land with that of other nations, we see so decided an advantage in that cheapness, as to have full confidence of being unrivalled. with respect to the object of manufactures, other countries may and do rival us; but we may be said to have a monopoly in agriculture; the possession of the soil, and the lowness of its price, give us as much a monopoly in this case, as any nation or other parts of the world have in the monopoly of any article whatever; but, with this advantage to us, that it cannot be shared nor injured by rivalship. if my general principle is a good one, that commerce ought to be free, and labor and industry left at large to find its proper object, the only thing which remains will be to discover the exceptions that do not come within the rule i have laid down. i agree with the gentleman from pennsylvania, that there are exceptions, important in themselves, and which claim the particular attention of the committee. although the freedom of commerce would be advantageous to the world, yet, in some particulars, one nation might suffer to benefit others, and this ought to be for the general good of society. the next exception that occurs, is one on which great stress is laid by some well informed men, and this with great plausibility. that each nation should have within itself the means of defence, independent of foreign supplies: that in whatever relates to the operations of war, no state ought to depend upon a precarious supply from any part of the world. there may be some truth in this remark, and therefore it is proper for legislative attention. i am, though, well persuaded that the reasoning on this subject has been carried too far. the difficulties we experienced a few years ago, of obtaining military supplies, ought not to furnish too much in favor of an establishment which would be difficult and expensive; because our national character is now established and recognized throughout the world, and the laws of war favor national exertion more than intestine commotion, so that there is good reason to believe that when it becomes necessary, we may obtain supplies from abroad as readily as any other nation whatsoever. i have mentioned this, because i think i see something among the enumerated articles that seems to favor such a policy. mr. boudinot.--i believe that it will not be disputed, that the best and easiest way of supplying the public wants, is by raising a revenue on the importation of goods by way of impost, though the manner in which it should be done, i confess, is a subject on which i stand greatly in need of information. i should, therefore, most cordially comply with the request of the gentleman from south carolina, (mr. tucker,) in order to obtain time for consideration, and to wait the arrival of the absent gentlemen, in order that we may have that assistance which is to be derived from them. did i consider the question on the present motion final, i should be at a loss how to act; but this, i take it, is not the case. i presume it is intended by the mover only to lay his motion on the table, with the original propositions open for debate and consideration, till the committee are possessed of sufficient information to proceed. i also confess, that, in general, i am in favor of specific duties on enumerated articles. i shall therefore vote for the amendment; but, in doing this, i shall not consider myself as bound to support the whole, nor, indeed, any particular article which, upon due consideration, i may deem either impolitic or unjust; for i cannot conceive, that, by adopting the amendment, we tie up our hands, or prevent future discussion. no, sir, that is not the case; and as i trust we all have the same object in view, namely, the public good of the united states, so i hope that a willing ear will be lent to every proposition likely to promote this end; nor do i doubt but gentlemen are mutually inclined to sacrifice local advantages for the accomplishment of this great purpose. on motion of mr. lee, the committee rose and reported progress, and the house adjourned. saturday, april . mr. clymer submitted it to the consideration of the committee, how far it was best to bring propositions forward in this way. not that he objected to this mode of encouraging manufactures and obtaining revenue, by combining the two objects in one bill. he was satisfied that a political necessity existed for both the one and the other, and it would not be amiss to do it in this way, but perhaps the business would be more speedily accomplished by entering upon it systematically. mr. boudinot.--it appears to me that this business of raising revenue points out two questions, of great importance, demanding much information. the first is, what articles are proper objects of taxation, and the probable amount of revenue from each. the second is, the proper mode of collecting the money arising from this fund, when the object and its amount are ascertained. there are three sources from which we may gain information on the first question, namely, from the revenue laws of the different states, for i believe a partial revenue has been raised almost in every state by an impost. the second source of information, and a very natural one, is the great body of merchants spread throughout the united states; this is a very respectable and well-informed body of our fellow-citizens, and great deference ought to be paid to their communications--they are in a peculiar situation under the present constitution, to which they are generally esteemed sincere friends--they are also more immediately interested in the event of the proposed measure, than any other class of men. to this government they look for protection and support, and for such regulations as are beneficial to commerce; for these reasons, i think they deserve our confidence, and we ought to obtain from them such information as will enable the congress to proceed to a general permanent system on more solid principles. there are gentlemen on this floor well calculated to represent the mercantile interests of this country, and in whose integrity and abilities i have the highest confidence; but it is the duty of the members of this body to see that the principles upon which we act, are those calculated to promote the general good, and not confined to the local interests of a few individuals, or even individual states, so that they will decline trusting alone to this species of information, when another is attainable. mr. fitzsimons thought it best to make the system as perfect as possible before the committee determined its duration. mr. madison, that the subject which was under consideration divided itself, as had been observed by the honorable gentlemen from jersey, into two parts; and hence he concluded that they might very properly be provided for by two separate bills; and while the committee of the whole are selecting articles and taxing them, another committee can be employed in devising the mode of collection. this method he thought more likely to reconcile the opinions of the committee than any he had heard suggested. mr. sherman gave it as his opinion, that in fixing the duties on particular articles, if they could not ascertain the exact quantum, it would be better to run the risk of erring in setting low duties than high ones, because it was less injurious to commerce to raise them than to lower them; but nevertheless, he was for laying on duties which some gentlemen might think high, as he thought it better to derive revenue from impost than from direct taxation, or any other method in their power. he moved that the article of rum should be charged with fifteen cents per gallon--he used the term cents because it was a denomination of national coin, fixed by the late congress, ten of which make a _dime_ and ten _dimes_ one dollar. mr. smith was apprehensive fifteen cents would be too high, and therefore moved ten cents, which he thought would raise more revenue than the other. mr. madison advised and moved for the rising of the committee, in order to give gentlemen time to make up their minds respecting the quantum of impost to be laid on each article. monday, april . william floyd, from new york; thomas sinnickson, from new jersey; joshua seney, from maryland; edanus burke, daniel huger, and william smith, from south carolina, appeared and took their seats. on motion, _ordered_, that mr. benson, mr. peter muhlenberg, and mr. griffin, be a committee to consider of and report to the house respecting the ceremonial of receiving the president, and that they be authorized to confer with a committee of the senate for the purpose. tuesday, april . _duties on imports._ the house again resolved itself into a committee of the whole on the state of the union; mr. page in the chair. mr. bland, from virginia, thought the committee not prepared to enter on the business of impost in the accurate manner which the form of the propositions seemed to imply. no gentleman on the floor could be more desirous than he was to go into the measure of a permanent system; but he could not agree to proceed at this time, for want of information. when he looked at the list of articles, he saw some calculated to give encouragement to home manufactures. this might be in some degree proper; but it was a well-known fact, that the manufacturing arts in america were only in their infancy, and far from being able to answer the demands of the country; then certainly you lay a tax upon the whole community, in order to put the money in the pockets of a few, whenever you burthen the importation with a heavy impost. mr. scott.--the subject before us naturally divides itself into two heads. first, what article shall be the subject of a particular tax, and what shall remain in the common mass liable to an impost _ad valorem_? the second, what the sum is that is proper for the article we select? for both these points will be necessary, because it can hardly be supposed that all articles can be enumerated, while some certainly ought. this being the case, it leads us to inquire what rule or principle shall be laid down in order to make a proper discrimination; for surely some reason should be assigned for this distinction. i presume the particular article which is to be subjected to an extraordinary duty must either come at so cheap a rate, according to its intrinsic value, as to bear a greater impost without being unreasonably expensive, or it must be one which we do not stand in need of at all, and only used for the purposes of luxury. if an article does not come within one of these descriptions, i see no reason why it should be taxed in an extraordinary manner. on motion of mr. gale, the word _rum_ was changed into distilled spirits of jamaica proof. mr. lawrence proposed to lay twelve cents on this article, saying, i believe, mr. chairman, it will be necessary to consider, when we are about to lay a duty on any article, how far it is likely to be collected, especially if our main object is to obtain revenue by our impost. i trust it does not require much illustration to prove to the satisfaction of the committee, that if you lay your duties too high, it will be a temptation to smuggling; for, in the proportion which that sum bears to the value of the article, will be the risk run in every attempt to introduce it in a clandestine manner, and, if this temptation is made too strong, the article will furnish no revenue. i believe, if the committee shall impose a duty of fifteen cents, as proposed by the gentleman from connecticut, (mr. sherman,) it will be so strong a temptation for smuggling, that we shall lose our revenue altogether, or be compelled to use a mode of collection probably different from what we have been accustomed to--a mode so expensive as to absorb the whole produce of the tax. i wish to lay as large a sum on this article as good policy may deem expedient; it is an article of great consumption, and though it cannot be reckoned a necessary of life, yet it is in such general use, that it may be expected to pay a very considerable sum into your treasury, when others may not with so much certainty be relied upon. but, when we consider the relative proportion of the first cost of it, and the fifteen cents duty, we shall find it about one third. this, i cannot help thinking, is too high, as the risk of a total loss may be ventured in order to save so great a sum; it is surely a great temptation, and i dread its consequences on more accounts than one. mr. madison.--i would tax this article with as high a duty as can be collected, and i am sure, if we judge from what we have heard and seen in the several parts of the union, that it is the sense of the people of america that this article should have a duty imposed upon it weighty indeed. the duty proposed by the gentleman from new york (mr. lawrence) very little exceeds what is laid in this state, and very little what is laid in some other states, while some have thought it expedient to impose an excise superior. the question then is, whether the highest sum can be collected? i am of opinion that higher duties may generally be collected under the government of the union than could be under that of the particular states, because it has been the policy of some, not only to decline going hand in hand together, but actually to oppose regulations made in a neighboring state. being persuaded, likewise, that the highest sum will not exceed the power of the law to enforce the collection of, i shall vote for it. mr. boudinot.--i am in favor of taxing this article as high as there is a probability of collecting the duty. i think our doing so will answer two or three good purposes. the present object of the committee is to raise a revenue, and no article on the list before you is more likely to be productive than this one; but a high duty may also discourage the use of ardent spirits; if not, it may discourage the west indies from turning their molasses into rum. this being the case, they have no other market for molasses than this country, and our own distilleries, with the advantages arising therefrom, will be able to rival them in the manufacture of that article; so far it may tend to the benefit of the country. i conceive it might be proper, on these accounts, to lay a much higher duty than has been proposed, were it not for the considerations mentioned by the gentleman from new york, that we run a risk of losing all by grasping at too much. mr. lawrence.--the sum proposed is higher than the duty collected in this state, which is about eight cents; i fear, therefore, that it cannot be collected. if we are to reason and act as moralists on this point, i am certain it is the wish of every member to prevent the use of ardent spirits altogether, for their influence on the morals of the people is of the most pernicious kind. nor does the mischief terminate here, as i apprehend it is equally destructive to the health; but we are not to deliberate and determine on this subject as moralists, but as politicians, and endeavor to draw (if i may use the expression) from the vices of mankind, that revenue which our citizens must, in one form or other, contribute. the question is, what shall be the duty on any particular article? to accomplish this purpose, we must determine by the circumstances of that article. now, if we lay a high duty on jamaica rum, it is supposed it will prevent the consumption; but then the purpose we have in view is frustrated, either because we cannot collect the tax, or the object of it is no longer imported. the consequence in this latter case would be, that the morals of our citizens are not impaired; yet it does not appear to me that this consequence would certainly flow from a system of high duties. i rather fear it would lead no further than to set men on schemes to evade the duty; and none of us are ignorant of the ingenuity and invention which can be exercised, when interest prompts mankind to an evasion of the law. we know the situation of the different states; the coast disposed by its prodigious extent to favor every means of illicit trade. a cargo of rum could be landed in jersey, and the whole, reshipped in small vessels, might soon be brought into this city. if this should be the effect of our law, we have no other way to correct the operation, but by adopting a mode of collection odious to all, on account of the numerous train of officers it would require in its execution. but there would also be a danger of vessels running into creeks and small inlets, for the purpose of landing their cargoes, as well as on the sea-shore. hence a necessity would arise of employing a number of vessels to check and correct such abuses, and the probable event would be, that all the impost collected would go to defray the expense of getting it into the treasury. the committee now agreed to tax ardent spirits, of jamaica proof, fifteen cents; and all other spirituous liquors twelve cents. on filling up the blank on molasses: mr. madison.--it is agreed, i presume, that spirits of every kind are proper objects of taxation, but whether we shall tax spirits in the case before us, or whether we shall tax the article from which it comes, is a question worthy of the consideration of the committee for several reasons. i believe it will be best to lay our hands on the duty, by charging this article on its importation, to avoid a more disagreeable measure. i would, therefore, lay such a duty on molasses, as is proportioned to what we have affixed upon rum, making an allowance in favor of our own manufacture. i think eight cents per gallon will allow a sufficient advantage to them, but of this i am not positive, and, therefore, shall not pertinaciously adhere to that sum, if it be thought too high; but i presume i am right in the principle upon which i contend, that we ought to collect the duty on the importation of molasses, in preference to any other way. mr. fitzsimons.--i think the duty on this article depends, in a great measure, upon what has been already agreed to. if the tax of west india and country rum is not well proportioned, it may be destructive of the end we have in contemplation. if, agreeably to the idea of the gentleman from new york, we affix a low duty, a great deal more rum will, in all probability, be distilled and used, than heretofore; of course, it will effectually rival the jamaica rum, and the union will lose the revenue which we calculate upon. eight cents, i apprehend, is as well proportioned to the other taxes as can be devised. mr. goodhue considered molasses as a raw material, essentially requisite for the well-being of a very extensive and valuable manufacture. it ought likewise to be considered (as was truly stated) a necessary of life. in the eastern states it entered into the diet of the poorer classes of people, who were, from the decay of trade and other adventitious circumstances, totally unable to sustain such a weight as a tax of eight cents would be upon them. moreover, the tax was upon particular states as well as individuals, for it was a fact of public notoriety, that massachusetts imported more molasses than all the other states together. she imports from , to , hogsheads annually. he would make one observation more. it had been the policy of great britain, as he well remembered, to encumber and depress the distillation of molasses. to do this, at one time they laid a duty of three pence sterling per gallon. it was conceived to be an oppressive measure, but it had little other effect than to cause heart-burnings and enmity. it produced no revenue, and the parliament were forced to reduce the duty to a penny. from experience, therefore, as well as from the arguments before urged, he was inclined to believe that the committee would be satisfied with fixing a lower sum. he could not consent to allow more than two cents. mr. thatcher.--it appears to me, that for the want of a certain and fixed principle to act upon, there is a great danger of making some improper establishments. it is for this reason that i wish not to hurry on the business with so much precipitation. did gentlemen consider, when they agreed to a high duty on ardent spirits, that it would be a pretext for increasing the duties on a necessary of life. i presume a principal reason why a high tax on spirits was admitted, was in order to discourage the use of it among ourselves. if this was the intention of the committee, i have no objection to the burthen; but, even here, i fear difficulties will arise. did we judiciously examine whether the spirit of the law accords with the habits and manners of the people? and did we assure ourselves of the full execution of the law? if we did not, the act becomes impolitic, because a law which cannot be executed tends to make the government less respectable. mr. ames.--i have not had the advantage of hearing all the arguments in support of the eight cents proposed; but those i have heard i am not satisfied with. the principles on which this tax is founded, i understand to be this: that it is an article of luxury, and of pretty general consumption, so that the duty is expected to fall equally upon all; but that it will not operate in this manner, i think is easily demonstrable. can a duty of fifty per cent. _ad valorem_, paid, as it were, in an exclusive manner, by the state of massachusetts, be equal? no, sir. but taking it as a part of the general system, can it be equal unless a proportionable duty, equal to fifty per cent., is laid upon articles consumed in other parts of the union? no, sir; and is it in the contemplation of gentlemen to lay duties so high as to produce this equality? i trust it is not; because such duties could never be collected. is not, therefore, eight cents disproportioned to the rates fixed, or intended to be imposed on other articles? i think it is; and, if to these considerations we add what has been said before, relative to its being a raw material important to a considerable manufacture, we cannot hesitate to reject it. however gentlemen may think the use of this article dangerous to the health and morals of our fellow-citizens--i would also beg them to consider, that it is no more so than every other kind of spirituous liquors; that it will grow into an article for exportation; and although i admit we could export it even encumbered with the duty proposed, yet by it we run the risk of having the manufacture totally ruined, for it can hardly now stand a competition at home with the west india rum, much less can it do so abroad. if the manufacturers of country rum are to be devoted to certain ruin, to mend the morals of others, let them be admonished that they prepare themselves for the event: but in the way we are about to take, destruction comes on so sudden, they have not time to seek refuge in any other employment whatsoever. if their situation will not operate to restrain the hand of iron policy, consider how immediately they are connected with the most essential interests of the union, and then let me ask if it is wise, if it is reconcilable to national prudence, to take measures subversive of your very existence? for i do contend, that the very existence of the eastern states depends upon the encouragement of their navigation and fishery, which receive a deadly wound by an excessive impost on the article before us. i would concur in any measure calculated to exterminate the poison covered under the form of ardent spirits, from our country; but it should be without violence. i approve as much as any gentleman the introduction of malt liquors, believing them not so pernicious as the one in common use; but before we restrain ourselves to the use of them, we ought to be certain that we have malt and hops, as well as brew-houses for the manufacture. now, i deny that we have these in sufficient abundance to the eastward; but if we had, they are not taxed. then why should the poor of massachusetts be taxed for the beverage they use of spruce, molasses and water? it surely is unreasonable. i hope gentlemen will not adopt the motion for eight cents until they are furnished with some better evidence of its propriety and policy than any that has yet been given, or as i suspect that can be given. mr. fitzsimons was pleased that gentlemen went so fully into a discussion of a subject which they conceived of great importance, but he begged them not to lose sight of an observation that had already been made, that whenever a particular duty was supposed to bear hard on any one member of the union, it ought to be regarded as a part only of a system bearing equally upon all. he was a friend to commerce, it was his particular profession, and what he had principally devoted his attention to; and therefore it might justly be imagined he was unwilling to fetter it with restraints; but as a member of this body, he considered it proper to forego a pertinacious adhesion to that system, when its interest came in competition with the general welfare. the gentleman from massachusetts (mr. ames) has represented the proposed regulation as tending eventually to the ruin of the commerce, fisheries, and manufactures of that state. i do not believe (added he) such a consequence would result from a duty of eight cents on a gallon of molasses; if i did, i would be one of the last to advocate the measure; but to understand this circumstance more fully, let us proceed to an inquiry of the ground on which we stand. the state of massachusetts imports a greater proportion of this article than any other in the union; she will have therefore (say the opponents of the measure) to pay exclusively all the impost upon it. let us examine this. some part of the molasses is consumed in the substance, but all the remainder is distilled: this must either be consumed in the state, or exported from it; in the latter case, i would propose that all the rum shipped to foreign nations should draw back the duties it had paid as molasses. this would obviate all that was said relative to the competition between this state and other nations at a foreign market. as to what is exported, but consumed in some other parts of the united states, it is but proper that a duty should be paid, and although it may be advanced in the first instance by the people of massachusetts, yet it will be ultimately paid by the consumers in other parts. what is consumed within the state itself, gentlemen surely do not mean to have excluded from a duty. if they consume more country rum than west india, they pay a less duty than those states which consume a greater proportion of the latter. as to what is used in its raw, unmanufactured state, it will be sufficient to observe, that as it is generally a substitute for sugar, the consumers will therefore avoid the tax on that article, and pay it on the other. in pennsylvania they mostly use sugar; now, if the people there pay a tax on that article, it is but distributive justice that the people of massachusetts pay one on the article they use for the same purpose. mr. goodhue.--fifteen cents, the sum laid on jamaica spirits, is about one-third part of its value; now eight cents on molasses is considerably more: the former is an article of luxury, as was observed when it was under consideration, therefore that duty might not be improper; but the latter cannot be said to partake of that quality in the substance, and when manufactured into rum, it is no more a luxury than jamaica spirits. i cannot see, therefore, why molasses ought to be taxed forty or fifty per cent. when the other pays but thirty-three. surely the substance ought not to pay at this rate--then what good reason can be offered for the measure? mr. boudinot had attended to the arguments of the gentlemen on both sides of the question, and was led to believe the proportion was not properly observed. by the resolution of congress in , the molasses was fixed upon due consideration at one penny, and west india rum at fourpence. the proposed proportion was two-thirds of what is charged on west india rum. he thought this too high, as it would be an encumbrance on a considerable manufacture; six cents were therefore a more equitable rate than eight cents were; he believed also, that it was as much as the article would bear, especially if it was considered that the whole of the article was not manufactured into rum, but a large proportion consumed in substance. this might also be near what is intended to be charged on sugar; by fixing it at this rate, the necessity of lowering the duty at some future day would be avoided, which he thought an object worthy of the committee's consideration. mr. boudinot wished the gentleman to consider the difference in the price; if he did that, he would allow it to be reduced to six cents; if this principle could now be fixed, it would carry them through the whole. mr. partridge allowed, if all the molasses was distilled into rum, that a small duty might be proper; but when it was considered as an article of sustenance to the poor, and as a requisite to the support of the fisheries and navigation, he hoped the committee would allow but a very small one indeed. he wished it was possible to discriminate between what was manufactured into rum, and what was consumed in the raw state, because a higher duty might be collected in the former case than in the latter. mr. fitzsimons stated, that there were , gallons of rum imported into pennsylvania in , which would tend to show how great a part was consumed by the citizens of the union; a demand in one state so great as this, proved how likely it was for new england rum to rival the west india. he thought the prices of the two articles gave the country rum a very considerable advantage, and therefore a duty of seven cents could not be very injurious to the manufacture. the question was put on seven cents and lost. and it was agreed to fill the blank with six cents. on filling up the blank on madeira wine, mr. sherman moved fifteen cents. mr. gilman moved twenty cents, and mr. hartley moved thirty cents, in order (as he observed) to make it correspond with the rate per cent. on the value; as the principle of proportion seemed to be admitted by the committee. mr. sherman said, it appeared to him to be pretty well proportioned; because those who accustomed themselves to drink wine, consumed two or three times as much as those who used spirits, and consequently paid a due proportion. mr. fitzsimons.--i shall move you, sir, that the blank be filled with fifty cents. i observed some gentlemen, in their arguments on the last article, laid great stress upon the impropriety of taxing the necessaries of life that were principally consumed by the poorer class of citizens. i do not think any of the members of this committee consider the article of madeira wine a necessary of life, at least to those whose incomes are only sufficient for a temperate subsistence; therefore no objection of this kind can be made on the present occasion. the propriety of a high tax on wines, i apprehend, is self-evident, whether we consider the price of the article, or the ability of the people to pay who consume it. the value of a pipe of madeira wine, i believe, is about two hundred dollars, a hogshead of rum is worth about forty dollars. the ability of those who consume the one and the other are, i suppose, in nearly the same ratio. i do not pretend to know what are the intentions of gentlemen on this subject, but my wish is, to raise so considerable a revenue from imposts as to render it unnecessary to apply to any other mode. if this be the wish of the committee also, they will be inclined to raise a great part of it from the consumption of those people who are best able to pay, among whom we may, with great propriety, reckon the consumers of madeira wine. mr. p. muhlenberg thought his colleague's observations were very judicious, and said they met exactly his ideas; he therefore seconded the motion for fifty cents. mr. bland.--i am not against laying any sum on this article which there is a probability of collecting; but i am afraid we are running wild in the business, and although we appear to be in search of revenue, we are pursuing a track that will lead us wide of our mark. i am really suspicious, if we lay a duty of fifty cents upon madeira wine, we shall not have a single gallon entered in any port of the united states, and we shall fully verify to the world the truth of an old maxim, that two and two, in finance, do not make four. i would therefore suggest to the committee, the propriety of considering well, whether they can, or cannot, collect the high duty proposed. if they are well convinced that it can be done, and will satisfy me only that there is a probability of its being the case, i shall cheerfully concur in the motion; but at present, i am of opinion we shall not be able to obtain any revenue whatsoever if the tax is laid so high. mr. boudinot.--i agree entirely with the principle of laying duties according to their relative value, and hope the committee will keep up the line of proportion as near as possible. it is only in the application of this principle on the present occasion, that i differ with the honorable gentleman from pennsylvania, for whose opinions i have the highest respect. i confess, too, that he is much better able to ascertain the price of foreign articles than i am; but i believe, with regard to this one of madeira wine, i have it in my power to ascertain it pretty well. i take it, that a pipe of wine usually costs at madeira from twenty-five to thirty pounds sterling; but then i would wish the committee to take into consideration that this wine is paid for there in our own produce at a very advantageous rate, which reduces the nominal sterling sum down in value to a like sum of our currency. i therefore look upon it, that we may calculate the cost of a gallon of madeira wine at one dollar; for i cannot conceive that any gentleman entertains an idea of taxing the risk the merchant runs in importing the wine, or the increased value it obtains during the time it takes to ripen for sale. in laying our duties we ought to apportion it to the value of the article at the time and place of importation, without taking advantage of such adventitious circumstances. beside, there is a considerable loss attends keeping madeira. the storage is no inconsiderable expense, and the evaporation is an actual loss in quantity, which the merchant is obliged to replace by filling up the cask. under these considerations, i think it may be admitted, that twenty or twenty-five cents per gallon is a sufficient tax. moreover, it may be easily demonstrated, that such a duty would be more productive than fifty cents; because it would be with greater certainty collected. there is another reason that induces me to think twenty cents more proper; fifty cents for a gallon of wine is a large sum for a merchant to lay down in duties; it must abridge his mercantile operations, and consequently tend to discourage the madeira trade, which, in my humble opinion, is one of the most advantageous america has left to her, from the selfish policy that actuates some foreign powers; therefore we ought not to burthen it to so great a degree as the proposed duty seems to have in contemplation. mr. fitzsimons withdrew his motion for fifty cents, and moved thirty-three and one-third cents. the question was put upon thirty-three and one-third cents as the highest sum, and agreed to, being twenty-one votes for it, and nineteen against it. the next article "on all other wines," presented itself in order for the consideration of the committee. mr. heister observed, there were a great variety of wines included in that general expression, the prices of which were very different; some worth even more than madeira, and others less; he submitted, therefore, to the committee the propriety of discriminating and taxing them according to their value. mr. boudinot acquiesced in the remark. mr. fitzsimons did not think it worth while, at this time, to engage the committee in making such a discrimination. the rich wines were imported in no very considerable quantities, and if the duty was laid pretty high, it would tend to exclude the most inferior and low wines from being introduced. it was thereupon agreed to lay twenty cents on all other wines. the next article on the list was "bohea tea," on which mr. fitzsimons observed, that he meant this article not only as a revenue, but as a regulation of a commerce highly advantageous to the united states. the merchants of this country have, from a variety of circumstances, and finding their trade restrained and embarrassed, been under the necessity of exploring channels to which they were heretofore unaccustomed. at length they have succeeded in discovering one that bids fair to increase our national importance and prosperity, while at the same time it is lucrative to the persons engaged in its prosecution. i mean, sir, the trade to china and the east indies. i have no doubt but what it will receive the encouragement of the federal government for some time to come. there is scarcely any direct intercourse of this nature, but what requires some assistance in the beginning; it is peculiarly necessary in our case, from the jealousy subsisting in europe of this infant branch of commerce. it has been thought proper, under some of the state governments, to foster and protect a direct communication with india. i hope the government of the united states has an equal disposition to give this trade their encouragement. i wish, therefore, the committee would pass over the article for the present, and permit it to come in at another place in the list, where i mean to move a discrimination in the duty on teas, according as they are imported, directly from china in our own ships, or in any ships from europe. the articles of teas and pepper were passed over for the present. mr. boudinot proposed one cent per pound on sugar. two cents were afterwards proposed, when mr. fitzsimons remarked, that one gallon of molasses weighed eight pounds; that at six cents it did not pay a cent per pound; could it, therefore, be called anywise equal to such a tax on sugar? moreover, sugar is an article of as general consumption as molasses, and when it is of this inferior quality, it enters as much or more into the consumption of the poor as the other, while, at the same time, molasses will sweeten more, according to its weight, than even the best sugar; from which considerations, i think gentlemen will be satisfied by putting it on an equality with molasses; therefore i do not oppose the one cent. on the question, the committee agreed to tax it but one cent per pound, and loaf sugar three cents per pound. all other sugars one and a half cent per pound. on coffee two and a half cents per pound. on motion of mr. bland, the committee rose and reported progress. adjourned. wednesday, april . a petition of david ramsay, of the state of south carolina, was presented to the house and read, setting forth that mr. william smith, a member returned to serve in this house as one of the representatives for the state of south carolina, was, at the time of his election, ineligible thereto, and came within the disqualification of the third paragraph of the constitution, which declares, "that no person shall be a representative who shall not have been seven years a citizen of the united states," and praying that these allegations may be inquired by the house. referred to the committee on elections. mr. benson, from the committee to whom it was referred to consider of and report to the house respecting the ceremonial of receiving the president, and to whom was also referred a letter from the chairman of a committee of the senate to the speaker, communicating an instruction from that house to a committee thereof, to report if any, and what, arrangements are necessary for the reception of the president, made the following report: "that mr. osgood, the proprietor of the house lately occupied by the president of congress, be requested to put the same, and the furniture therein, in proper condition for the residence and use of the president of the united states, to provide for his temporary accommodation. "that it will be most eligible, in the first instance, that a committee of three members from the senate, and five from the house of representatives, to be appointed by the houses respectively, to attend to receive the president at such place as he shall embark from new jersey for this city, and conduct him without form to the house lately occupied by the president of congress, and that at such time thereafter, as the president shall signify it will be convenient for him, he be formally received by both houses. "that a committee of two members from the senate, and three members from the house of representatives, to be appointed by the houses respectively, wait on the vice president of the united states, as soon as he shall come to this city, and, in the name of the congress of the united states, congratulate him on his arrival." and a committee of five was balloted for and chosen accordingly, for the purpose of waiting on the president. another committee of three was appointed to wait on the vice president. _duties on imports._ the house again resolved itself into a committee of the whole on the state of the union, mr. page in the chair; the question being on inserting, in the list of dutiable articles, beer, ale, and porter-- mr. fitzsimons meant to make an alteration in this article, by distinguishing beer, ale, and porter, imported in casks, from what was imported in bottles. he thought this manufacture one highly deserving of encouragement. if the morals of the people were to be improved by what entered into their diet, it would be prudent in the national legislature to encourage the manufacture of malt liquors. the small protecting duties laid in pennsylvania had a great effect towards the establishment of breweries; they no longer imported this article, but, on the contrary, exported considerable quantities, and, in two or three years, with the fostering aid of government, would be able to furnish enough for the whole consumption of the united states. he moved nine cents per gallon. mr. lawrence seconded the motion. he would have this duty so high as to give a decided preference to american beer; it would tend also to encourage agriculture, because the malt and hops consumed in the manufacture were the produce of our own grounds. mr. smith (of maryland) was opposed to such high duties as seemed to be in the contemplation of some members of the committee. he thought enough might be raised if the tax was lowered. he formed this opinion from some calculations he had made with respect to the imports at baltimore. he stated them to amount for the last year, at the rate now proposed, to £ , ; to this, if he added five other districts in maryland, the probable amount of which, on the same principle, would be £ , ; then, these two sums multiplied by twelve, the supposed proportion that maryland ought to bear of the national debt, would produce £ , , , a sum exceeding very considerably what the wants of the union required. mr. gale thought a duty of nine cents would operate as a prohibition upon the importation of beer and porter. he remarked the advantages which america possessed in growing malt and hops for the manufacture of these articles. in addition to this, the risk and expense of bringing it from europe was to be considered. upon the whole, he concluded so high a duty as nine cents would give the brewers here a monopoly, defeat the purpose of obtaining revenue, enhance the price to the consumer, and thereby establish the use of spirituous liquors. for these considerations he was against that sum. mr. sinnickson declared himself a friend to this manufacture, and thought if the duty was laid high enough to effect a prohibition, the manufacture would increase, and, of consequence, the price be lessened. he considered it of importance, inasmuch as the materials were produced in the country, and tended to advance the agricultural interest. mr. madison moved to lay an impost of eight cents on all beer imported. he did not think this sum would give a monopoly, but hoped it would be such an encouragement as to induce the manufacture to take deep root in every state in the union; in this case, it would produce the collateral good hinted at by the gentleman from new jersey, which, in his opinion, was an object well worthy of being attended to. he observed, that, in the state of new york, the article paid a duty equal to six cents on importation, and if brought in foreign vessels, it amounted to eight cents; and yet quantities of it were still imported, which proved that eight cents would not amount to a prohibition. the committee agreed hereupon to charge it at eight cents. on all beer, ale, or porter, imported in bottles, per dozen, twenty-five cents. agreed to without debate. on every barrel of beef it was moved to lay a duty of a dollar per barrel. mr. bland thought that very little revenue was likely to be collected on this article, let the duty be more or less; and as it was to be had in sufficient quantities within the united states, perhaps a tax amounting to a prohibition would be proper. mr. thatcher admitted that there was beef enough to be got in every part of the country, but it was fresh beef. some states, from local circumstances, were unable to salt and preserve it, therefore a tax on this article would operate as a partial tax upon those states. if there is a sufficient quantity in the other states to answer their own consumption, they will feel no part of the burthen; but it appeared unnecessary to him to lay this restriction, because he found some states capable of exporting beef on terms as reasonably low as any other country could, and it could not, therefore, be contended for as a requisite encouragement to this branch of the agricultural interest. mr. goodhue did not contend that it was necessary to lay a particular duty on beef, although it was among the enumerated articles admitted by the committee. he was satisfied of the fact, that meat could be put up here cheaper than in europe, and afforded at a less price, so there was little to apprehend from rivalship. mr. madison thought that almost every state in the union had more of this article than was necessary for its own consumption, and consequently there was no danger of its being imported, unless the quality of the foreign beef was superior. he would not object to gentlemen gratifying themselves with this meat, especially as the consumption was neither so great nor general as to affect the revenue, and therefore he judged it might be struck out. mr. tucker thought with the gentleman from virginia, that the regulation was unnecessary, and that it would be better to throw it into the common mass, taxable at a certain rate per cent. he therefore moved to have it struck out. upon these considerations the articles of beef, pork, and butter, were all struck out. mr. fitzsimons moved to lay a duty of two cents on all candles of tallow per pound. mr. tucker observed, that some states were under the necessity of importing considerable quantities of this article also, while others had enough, and more than enough, for their own consumption, therefore the burthen would be partially borne by such states. as the committee had just rejected some articles upon this principle, he would move that this be struck out likewise. mr. fitzsimons.--i am not for striking out, sir. every article imported into the state that gentleman represents, from which revenue is to be raised, he moves to have struck out; but i wish the committee to consider a moment before they join in sentiments with him. the manufacture of candles is an important manufacture, and far advanced towards perfection. i have no doubt but, in a few years, we shall be able to furnish sufficient to supply the consumption of every part of the continent. in pennsylvania we have a duty of two pence per pound, and under the operation of this small encouragement the manufacture has gained considerable strength. we no longer import candles from ireland or england, of whom a few years ago we took considerable quantities; the necessity of continuing those encouragements which the state legislatures have deemed proper, exists in a considerable degree; therefore it will be politic in the government of the united states to continue such duties till their object is accomplished. mr. tucker would be glad to know what article it was that south carolina would not contribute her full proportion of tax upon--he saw none; on the contrary, so far as the enumeration went, the impost would bear unequally upon her, and he feared many others in the list would increase the imposition. he thought it the duty of the committee to guard against an unequal distribution of the public burthen in every case, and therefore wished the duty on this article to be a moderate one; not because it affected the state he represented, for it did not do this to any degree, as wax candies were there principally consumed, the material for which was the production of the southern states, but because other states, not having this advantage, might be oppressed. mr. boudinot apprehended most states imported considerable quantities of this article from russia and ireland; he expected they would be made cheaper than they could be imported, if a small encouragement was held out by the government, as the materials were to be had in abundance in our country. mr. lawrence thought that if candles were an object of considerable importation, they ought to be taxed for the sake of obtaining revenue, and if they were not imported in considerable quantities, the burthen upon the consumer would be small, while it tended to cherish a valuable manufacture. he seconded mr. fitzsimon's motion for two cents: which was carried in the affirmative upon the question being put. on all candles of wax or spermaceti, per lb. six cents; cheese, four cents; soap, two cents; boots, per pair, fifty cents; on all shoes, slippers, or goloshes made of leather, ten cents; on all shoes or slippers, made of silk or stuff, ten cents; on all steel unwrought, per lbs.,---- mr. lee moved to strike out this last article, observing that the consumption of steel was very great, and essentially necessary to agricultural improvements. he did not believe any gentleman would contend, that enough of this article to answer consumption could be fabricated in any part of the union: hence it would operate as an oppressive, though indirect tax upon agriculture, and any tax, whether direct or indirect, upon this interest, at this juncture, would be unwise and impolitic. mr. tucker joined the gentleman in his opinion, observing that it was impossible for some states to get it but by importation from foreign countries. he conceived it more deserving a bounty to increase the quantity, than an impost which would lessen the consumption and make it dearer also. mr. clymer replied, that the manufacture of steel in america was rather in its infancy; but as all the materials necessary to make it were the produce of almost every state in the union, and as the manufacture was already established, and attended with considerable success, he deemed it prudent to emancipate our country from the manacles in which she was held by foreign manufactures. a furnace in philadelphia, with a very small aid from the legislature of pennsylvania, made three hundred tons in two years, and now makes at the rate of two hundred and thirty tons annually, and with a little further encouragement would supply enough for the consumption of the union. he hoped, therefore, gentlemen would be disposed, under these considerations, to extend a degree of patronage to a manufacture, which a moment's reflection would convince them was highly deserving protection. mr. madison thought the object of selecting this article to be solely the encouragement of the manufacture, and not revenue, for on any other consideration it would be more proper, as observed by the gentleman from carolina, (mr. tucker) to give a bounty on the importation. it was so materially connected with the improvement of agriculture and other manufactures, that he questioned its propriety even on that score. a duty would tend to depress many mechanic arts in the proportion that it protected this; he thought it best to reserve this article to the non-enumerated ones, where it would be subject to a five per cent. _ad. valorem_. mr. tucker considered the smallest tax on this article to be a burthen on agriculture, which ought to be considered an interest most deserving protection and encouragement; on this is our principal reliance, on it also our safety and happiness depend. when he considered the state of it in that part of the country which he represented on this floor, and in some other parts of the union, he was really at a loss to imagine with what propriety any gentleman could propose a measure big with oppression, and tending to burthen particular states. the situation of south carolina was melancholy; while the inhabitants were deeply in debt, the produce of the state was daily falling in price. rice and indigo were become so low, as to be considered by many not objects worthy of cultivation; and gentlemen will consider, that it is not an easy thing for a planter to change his whole system of husbandry in a moment; but accumulated burthens will drive to this, and add to their embarrassments. he thought an impost of five per cent. as great an encouragement as ought to be granted, and would not oppose that being laid. he called upon gentlemen to exercise liberality and moderation in what they proposed, if they wished to give satisfaction and do justice to their constituents. mr. fitzsimons thought, if gentlemen did not get rid of local considerations, the committee would make little progress. every state will feel itself oppressed by a duty on particular articles, but when the whole system is perfected, the burthen will be equal on all. he did not desire, for his part, to obtain exclusive advantages for pennsylvania; he would contend, and undertake to prove, that by the duties already agreed to, that state sacrificed as much as any other. indeed, if he had said more, he believed himself capable of proving the position. being of this opinion he hoped the committee would agree to grant her an advantage which would revert back upon the other parts of the union, without operating even for the present, to the material disadvantage of any. some states were, from local circumstances, better situated to carry on the manufacture than others, and would derive some little advantage on this account in the commencement of the business. the eastern states were so situated, perhaps some of the middle ones also; but will it therefore be insisted upon, that the southern states pay more of the impost on foreign goods than these? for his part, he never could conceive, that the consumption of those articles by the negroes of south carolina would contribute to the revenue as much as that of the white inhabitants of the eastern states. but laying aside local distinctions, what operates to the benefit of one part in establishing useful institutions, will eventually operate to the advantage of the whole. with these considerations, he cheerfully submitted the article to the discretion of the committee, moving to fill the blank with sixty-six cents. mr. bland considered a tax of sixty-six cents a very heavy duty on agriculture and the mechanic arts, and was averse to granting it. mr. boudinot moved fifty-six cents, which motion was agreed to. on nails and spikes, it was agreed to lay one cent per pound; on tarred cordage, fifty cents per pounds; on untarred cordage, sixty cents per pounds; on twine or pack-thread, one hundred cents per pounds. mr. madison said, that he was not clear as to the policy of taxing cordage. he thought ship-building an object worthy of legislative attention, and questioned the propriety of raising the price of any article that entered so materially into the structure of vessels. but if it was politic to lay an impost on cordage, would it not be the same with regard to hemp? he thought it would, and therefore moved it. mr. boudinot.--hemp is a raw material, necessary for an important manufacture, and therefore ought not to be subject to a heavy duty. if it was the product of the country in general, a duty might be proper, but this he believed was not the case. mr. madison.--i said before, i very much doubted the propriety of laying a duty on such articles as entered into ship-building; but if it is necessary to lay a duty on cordage for the purpose of encouraging the manufacture, and making us independent of the world as to that article, it is also politic to endeavor to make us alike independent for the raw material; a great proportion of the land in the western country is peculiarly adapted to the growth of hemp, and it might be there cultivated to advantage, if the labors of the husbandman were protected by the government. mr. boudinot thought the soil of this country ill adapted to the cultivation of hemp; even the strong low lands which are fit for it, soon became exhausted; it impoverished the lands wherever it grew, and destroyed the agricultural stamina. if he was not mistaken in this opinion, he thought the committee would, with him, disagree to the motion. mr. partridge thought a duty on hemp would tend to discourage the american navigation, her trade, and fisheries, without any good resulting to warrant such an injury. it was not ascertained whether hemp could be furnished in any tolerable quantities to answer the demand, and if upon experience, it should be found that the quantity was insufficient, what a stab this would prove to all concerned in ship-building. mr. ames expressed a doubt of the policy of taxing either cordage or hemp, because while it tended to encourage the agriculture or manufacture, it discouraged the maritime interest, and therefore the discouragement, in the event, would reflect back upon those interests it was intended to cherish. mr. moore declared the southern states well calculated for the cultivation of hemp, and, from certain circumstances, well inclined thereto. he conceived it the duty of the committee to pay as much respect to the encouragement and protection of husbandry (the most important of all interests in the united states) as they did to manufactures. mr. fitzsimons thought there was a clear distinction between taxing manufactures and raw materials, well known to every enlightened country. he had no doubt but hemp enough could be raised for the home consumption, nay for exportation also, and why it was not done he could not say. he recollected that before the revolution, very little was imported; now, considerable quantities are brought from england. when such a bulky article is capable of paying double freight, first from russia and then from england, besides its first cost, he conceived that what was produced in america had a very considerable advantage. it could not be urged that the people are unacquainted with the cultivation, because it had been carried to very great perfection in former years. if eight dollars a hundred is not a sufficient inducement to farmers to raise hemp, it is a proof that they direct their labors to more profitable productions, and why should legislative authority be exercised to divide their attention? or for this purpose, why should navigation and ship-building be necessarily burthened. he concluded with declaring, that no duty which the congress would agree to lay, could give encouragement to the cultivation of hemp, if the present price of that article was insufficient. mr. scott stated a fact or two, being perhaps as well acquainted with the western country as any member of the committee. the lands along the frontiers, he could assure the committee, were well calculated for the cultivation of this plant; it is a production that will bear carriage by land better than any other, tobacco not excepted. he believed an encouragement of the kind now moved for would bring, in a year or two, vast quantities from that country, at little expense, to philadelphia, even from the waters of the ohio; the inhabitants expect some encourgement, and will be grateful for it. although a gentleman has called it a bulky article, yet as much can be packed upon a horse as a horse can carry, or in a wagon as four horses can draw; so that its bulk will not prevent our countrymen from seeking a market on the waters of the atlantic. the committee rose and reported, and the house adjourned. thursday, april . the house proceeded, by ballot, to the appointment of a committee of five, to attend, with a committee from the senate, to receive the president of the united states at such place as he shall embark at from new jersey for this city. the members elected were messrs. boudinot, bland, tucker, benson, and lawrence. on motion, _ordered_, that messrs. gilman, ames, and gale, be a committee, in conjunction with a committee from the senate, to wait upon the vice president of the united states upon his arrival in this city, and to congratulate him thereupon in the name of the congress of the united states. _duties on imports._ the house again resolved itself into a committee of the whole on the state of the union, mr. page in the chair. mr. moore thought it good policy to encourage the manufacture of cordage, but was not convinced that it was bad policy to encourage likewise the growth of the raw material in america, so that we might become as independent of all the world for this article, as we are already for every other used in the structure of vessels. he believed it would be difficult to persuade the farmer that his interest ought to be neglected to encourage particular artisans: he therefore begged the committee to do as much for them as was in their power, believing that the event of such policy would mutually benefit the manufacturer and agriculturist. mr. heister remarked, that a heavy duty on hemp would not encourage the raising of it this year, because the time was elapsed for commencing the cultivation; but a duty to take place at some future time, would no doubt be beneficial. he assured the committee of the ability of the land in america to grow hemp equal to any part of the world; and, therefore, joined heartily in giving it legislative encouragement, in order to induce the people to turn their attention more particularly to the subject, but would recommend the duty to be laid so as to commence its operation at a distant day. mr. white remarked, what was good policy in england might be the contrary in america. england was a maritime nation, and therefore she gave a bounty on such articles as were requisite to support her maritime importance--america was an agricultural country, and therefore ought to attend to the encouragement of that interest. if the legislature take no notice of this article, the people will be led to believe it is not an object worthy of encouragement, and the spirit of cultivation will be damped; whereas, if a small duty only was laid, it might point out to them that it was desirable, and would induce an increase of the quantity. our lands are capable of bearing this plant many years without being exhausted. he could not say exactly what sum would be proper to fill the blank with, but mentioned seventy-five cents for the consideration of the committee. mr. partridge admitted the propriety of encouraging agriculture, but it ought not to be done at the expense of the ship-builders, especially as the good would not balance the evil. he told the committee that hemp had risen, within three or four years, forty per cent. in russia, owing, perhaps, to the increased demand which the present northern war occasioned. this naturally operated to encourage the cultivation in america, and perhaps was sufficient, without the aid now intended to be given. if gentlemen were desirous of having it stand among the selected articles, he should not object, but hoped the duty would not exceed five per cent. forty cents were about equal to that rate, and he moved to fill the blank with that sum. mr. white thought with the gentleman from pennsylvania, that the united states would furnish this article in sufficient abundance, not only for home consumption, but for exportation. the maritime powers of europe do not raise the article, but obtain it principally from russia--these powers are as well disposed to take it from us as from russia. our back lands are extremely well adapted to its cultivation; a road to bring it to market is opening; the potomac extends her now navigable waters into the interior country, and a communication will be established with the river ohio and the western waters. the gentleman from pennsylvania (mr. hartley) had hinted at the propriety of settling the western territory; it was his opinion that every encouragement ought to be given them to engage their affection; that the administration of the government ought to be such as to give satisfaction to all parts of the union, but it is peculiarly our interest to render that country advantageous; her fertile lands, and streams easy of descent, would pour into the atlantic states, through the channels he had mentioned, a profusion of wealth, and hemp in abundance. the shenandoah river disembogues into the potomac, the south branch communicates with it also, and a number of other rivers whose lands will produce immense quantities. he considered that this, in a short time, would do more towards encouraging ship-building than a bounty, as had been mentioned by some gentlemen. mr. burke thought it proper to suggest to the committee what might be the probable effect of the proposed measure in the state he represented, (south carolina,) and the adjoining one (georgia.) the staple products of that part of the union were hardly worth cultivation, on account of their fall in price; the planters are, therefore, disposed to pursue some other. the lands are certainly well adapted to the growth of hemp, and he had no doubt but its culture would be practised with attention. cotton is likewise in contemplation among them, and if good seed could be procured, he hoped it might succeed. but the low, strong, rice lands, would produce hemp in abundance--many thousand tons even this year, if it was not so late in the season. he liked the idea of laying a low duty now, and encouraging it against the time when a supply might be had from our own cultivation. mr. madison feared seventy-five cents was too high; he was doubtful whether it would not have been as well to have left out cordage; for if a duty on hemp was impolitic because it burthened navigation, so also was that on cordage. he by no means approved of measures injurious to ship-building, which he considered in a threefold view: first, as it related to vessels employed in the coasting trade; second, as it respected those employed in those channels of trade, the stream of which depends upon the policy of foreign nations; and third, as it was connected with vessels built for sale. with respect to the first, no doubt but we can prevent any discouragement from the operation of the duty, because we can make such discrimination as will prevent a rivalship; but, in relation to the two other points, and particularly the last, he was sensible that every penny laid upon cordage would enter into the price of the vessel, and, by raising the price, drive the purchasers to seek a better bargain at other hands. fearful therefore of injuring this interest, he should vote for a small duty at present, in hopes of being able to see, in a little time, sufficient quantities of hemp brought to market, as predicted, at even a less price than is given now for the imported. mr. smith agreed to forty cents, provided the committee would make it one dollar at the end of two years. mr. madison could not judge of the alteration in the circumstances of this country two years hence, and therefore did not like the kind of provision mentioned. he preferred making it a positive sum, and moved fifty cents; which was agreed to. on malt. mr. sherman thought this might be struck out, on the same principle that beef and pork had been, there was none imported. mr. fitzsimons replied, that there had been considerable and recent importations of this article into the united states-- , bushels in one year; certainly this interferes with the products of the country. he moved ten cents per bushel, and it was agreed to. on motion of mr. ames, barley was taxed six cents, and lime one hundred cents. he just stated that these articles were imported in considerable quantities from a neighboring state that had not yet adopted the constitution; and, perhaps, said he, our political situation is such as to make some regulation on this head necessary. on nails, spikes, tacks, and brads. mr. lee did not think we were ripe for such extensive manufactures as some gentlemen seemed desirous of encouraging; but this was particularly objectionable, because it was a tax upon the improvement of estates, unless the articles could be furnished as cheap and abundantly at home as they were by foreign nations. he moved to strike it out. mr. madison conceived this, like a tax on hemp, would increase the price on ship-building; spikes and nails were necessary for the construction of vessels. mr. bland thought a duty on nails an unequal tax, burthening the southern states, but not felt by the northern, who made only enough for their own consumption; he opposed it also on account of its being an article of indispensable necessity. mr. goodhue informed the gentlemen who were opposed to a duty on nails, that great quantities of them were manufactured for exportation in massachusetts and pennsylvania, and he believed some other states; and, in a little time, enough might be made to supply all north america. mr. tucker judged, from what was said of the little expense and great facility of manufacturing nails, that it stood in no need of legislative assistance. why lay a duty on foreign nails, when they cannot rival you if you make them as good and as cheap? will not the five per cent. duty, with freight and shipping charges, be sufficient encouragement? he thought it would, and therefore was averse to any other duty. he observed also, that it would burthen ship-building, and was, consequently against those employed in that business. mr. fitzsimons was not very solicitous about the duty. he thought the manufacturer would have but little to apprehend if the legislature should decide against them; for, the fact was, that nails were at this moment made cheaper and, in the opinion of some judges, better than those coming from england. before the revolution, the people in america were not permitted to erect slitting mills. they now have several, and are independent of all the world for the materials necessary for carrying on the business in the most extensive manner. so far as the duty respected the manufacture in pennsylvania, it was his opinion that refusing it would do no material injury, and he believed it would draw but little money into the treasury; yet, nevertheless, he was willing to allow a small one, because it conformed to the policy of the states, who thought it proper, in this manner, to protect their manufactures. he believed neither spikes nor nails for ship-building were imported; they were generally large and heavy, and were made in the country, according to the builder's orders. on the motion, nails and spikes were taxed one cent per pound, but tacks and brads were struck out. on salt, per bushel. mr. burke.--i need not observe to the committee that this article is a necessary of life, nor that black cattle, sheep, and horses do not thrive without it; on these considerations alone i should oppose it; but i know likewise that it is a tax particularly odious to the inhabitants of south carolina and georgia, to whom the price is already oppressively great. the back parts of that state are obliged to haul all they consume, two, three, or four hundred miles in wagons, for which they pay about seven shillings sterling. add this to the first cost, which is about one shilling, though sometimes more, and you will find the burthen sustained by those who live remote from the sea-shore sufficiently unequal. i hope, therefore, the committee will not agree to it. mr. lawrence hoped a duty would be laid on the article; it was in general use, and the consumption so regular, that it was much to be depended upon as a source of revenue; but the duty ought not to be so high as to make it oppressive. he moved to impose a duty of six cents per bushel. mr. tucker felt an aversion to laying a duty on salt for several motives. it would bear harder upon the poor than upon the rich. the true principle of taxation is, that every man contribute to the public burthens in proportion to the value of his property. but a poor man consumes as much salt as a rich man. in this point of view, it operates as a poll-tax, the most odious of all taxes; it does not operate simply as a poll-tax, but is heavier on the poor than on the rich, because the poor consume greater quantities of salted provisions than the rich. nor does it bear equally upon every part of the country; for it is consumed in a greater proportion by cattle at a distance, than by those near the sea shores. moreover, the duty collected on the importation will enter into the price of the article, and the countryman will pay the retailer a profit on the tax, perhaps of four times its amount. for which reasons, he was more averse to this article being taxed than any other whatsoever. mr. scott declared himself decisively against the duty, although he admitted a most certain revenue could be drawn from it, on account of its universal demand and utility. but he did not think these considerations alone amounted to a sufficient reason why this necessary article should be taxed; if they did, the argument would prove too much, it would extend to the use of water and common air. he presumed the old arguments often urged by gentlemen in favor of manufactures did not apply, because no encouragement would be sufficient to establish it. from the nearest part of the atlantic coast, where salt can be obtained, to the next nearest in the western territory, is a distance of eight hundred or one thousand miles; all the intermediate space must be supplied from one or the other; over the mountains it must be carried on pack-horses. this of itself is a sufficient tax upon the consumer; how oppressive then must it be to increase the burthen. mr. moore observed upon the inequality, as it respected the consumption of the article by cattle: some states raised more than others, consequently they consumed more; some parts of the same state were in a like situation. the people on the sea-coast pursued merchandise; those in the back parts raised cattle, which he was bold to say consumed five times as much salt as the lower country, and would pay the tax in the same proportion. it has been said, that if they pay more on salt, they pay less on other articles--agreed to. but there are a number more which may perhaps unequally affect them; yet it is an argument of small weight to say, because we in large commercial cities are regulated in a sumptuary manner for indulging in luxuries, you who are obliged to retrench them shall pay a tax upon the necessaries of life. in short, the tax appeared to him not only unpopular, but unjust likewise, and he would not agree to it. mr. smith (of south carolina.)--if any further arguments were necessary to convince the committee of the impropriety of the present measure, more might be urged, though what has been said is certainly sufficient to demonstrate that it will be attended with a great deal of dissatisfaction, and in proportion to that dissatisfaction will be the danger of having your laws contemned, opposed, or neglected in the execution. it is well known, that however small the duty, it will furnish a pretext to the seller to extort a much greater sum from the consumer. another observation. it is believed that the inhabitants of the interior part of south carolina are opposed to the new government; it will be a melancholy circumstance to entangle ourselves, at this time, among the shoals of discontent; yet no stronger impulse could be given for opposition than the proposed tax; conceiving it in this light, he was against the measure. mr. scott added, that the price of salt where he lived was four dollars a bushel, the country was settled three or four hundred miles beyond him, and he supposed the price there to be greater. mr. lawrence thought it would be better for the committee to take time to examine what had been urged against the tax, and as it was the usual time for adjourning, the committee might rise and defer their decision till to-morrow. whereupon the committee rose, and the house adjourned. friday, april . benjamin contee, from maryland, appeared and took his seat. _duties on imports._ the house again resolved itself into a committee of the whole on the state of the union, mr. page in the chair; the question of laying a duty on salt recurred. mr. lawrence.--i had the honor yesterday of delivering my sentiments in favor of this duty; but observations were made by gentlemen from different parts of the house against the measure. the principal objection was, that the tax was an odious one. it was admitted by a worthy gentleman from pennsylvania (mr. scott) that all taxes are odious; this is certainly true, for the people are not pleased with paying them; nothing but necessity will induce a government to have recourse to them. it is also true, that some are more odious than others. from what has been said, it may be seen that a tax on salt is not so in general, but only in particular parts of the union; the remote inhabitants, it is said, will be dissatisfied, because it increases the price of the commodity, and they use more of it than others. it is mentioned as partaking of the nature of a capitation tax, but this kind of tax is odious, more from its manner of operation than its nature. we find in some states where it is in use, the people live easy under it; for example, it is not complained of in some of the eastern states. we have not much to apprehend from a tax on salt in this state; the people are satisfied with it; at least the complaints are neither so loud nor so general, as to make us apprehensive for the existence of the government we live under. its operations, though the contrary was predicted, go on with as much ease since an impost has been laid, as they did before. i believe, likewise, we have only to try the experiment, to be convinced it would have a similar effect throughout the continent; for i cannot persuade myself that it is generally looked upon in so odious a light as some gentlemen imagine. it was also said, that the tax would be unequal, and the objects of inequality were two. the poor man would pay as much as the rich; but this is not the case; the rich are generally more profuse in their consumption than the poor; they have more servants and dependents also to consume it; consequently the whole amount of their consumption must be in a proportionable ratio. the other inequality was its different operation in different states, and even different parts of the same state. on examination, this objection also may be obviated. gentlemen tell you the high price of this article at three or four hundred miles distance; is it not hence presumable that there they consume as little as possible, while along the sea-coasts they use it with a liberal hand? but whether it be consumed on the sea-coast, or on the western waters, the tax is the same, or but inconsiderably augmented; for i take it the great addition which is made is in consequence of the charge of carriage. i cannot, therefore, see by what magic gentlemen will prove to you that it is increased four or five fold. we must also take into contemplation the number of persons who consume it; here it will appear, that the weight of population is much greater on the sea-coast than in the western parts of pennsylvania, virginia, and carolina, consequently the consumption must be greater. it was said, the argument i urged was not a good one, because it proved too much, that an article of general consumption was not the best article for taxation; now, i believe the maxim is just, and when examined it will be found so. taxes, to be just, should affect all, and equally affect them, and not be left to fall partially upon a few. this is more the case with salt than any other article which has yet been taxed, and i believe is the only tax which will get at the pockets of those to whom it is said to be obnoxious. but how comes it, if the other articles are equally consumed in the back countries, that gentlemen did not urge the argument of expense on transportation, and the pretext that a tax would furnish the seller to extort from the consumer. mr. madison.--from the nature of the arguments made use of on this occasion, it is necessary to proceed with some circumspection, though not to depart from that policy which can be justified by reason and experience. i am willing to trust a great deal to the good sense, justice, and penetration of our fellow-citizens for support; and though i think it might be just to lay a considerable duty generally on imported articles, yet it would not be prudent or politic, at this time, to do so. let us now proceed to consider the subject before us, on the principles of justice and principles of policy. in the first point of view, we may consider the effect it will have on the different descriptions of people throughout the united states, i mean different descriptions, as they relate to property. i readily agree that, in itself, a tax would be unjust and oppressive that did not fall on the citizens according to their degree of property and ability to pay it; were it, therefore, this single article which we are about to tax, i should think it indispensable that it should operate equally, agreeably to the principle i have just mentioned. but in order to determine whether a tax on salt is just or unjust, we must consider it as part of a system, and judge of the operation of this system as if it was but a single article; if this is found to be unequal, it is also unjust. now, examine the preceding articles, and consider how they affect the rich, and it will be found that they bear more than a just proportion according to their ability to pay; by adding this article, we shall rather equalize the disproportion than increase it, if it is true, as has been often mentioned, that the poor will contribute more of this tax than the rich. when we consider the tax as it operates on the different parts of the united states, dividing the whole into the northern, middle, and southern districts, it will be found that they contribute also in proportion to their numbers and ability to pay. if there be any distinction in this respect, it will be perceived to be in favor of the southern division, because the species of property there consists of mouths that consume salt in the same proportion as the whites; but they have not this property in the middle and northern districts to pay taxes for. the most important objection is, that the western part of our country uses more salt than any other; this makes it unequal; but, considered as a part of a system, the equilibrium is restored, when you find this almost the only tax they will have to pay. will they contribute any thing by consuming imported spirits? very little. yet, this is a principal source of revenue; they will subsist upon what they procure at home; and will they submit to a direct tax, if they murmur at so light a one on salt? will they submit to an excise? if they would, i trust it is not in the contemplation of gentlemen to propose it. mr. white, after some doubts, had made up his mind against the article being taxed. we ought to pass no law that is unjust or oppressive in its nature, or which the people may consider as unjust or oppressive; a duty on salt would be considered in that light by a great number. our constituents expect some ease and relief, particularly the poorer sort of people. it seems to be granted, from all that has been said, that it will affect them in a manner which no other tax can, though, it is said, they will not be affected beyond their proportion, as they pay nothing for the consumption of wine, spirits, &c. because they use none. one reason which influenced the committee to tax those articles, was to abolish the use of them altogether, or prevent the excesses they occasioned. now will you urge in argument for taxing the poor, that they already practise that temperance which you desire to bring universally about? all taxes, it is admitted, are odious, and some merely from opinion; but if they are odious from opinion, they ought to be carefully guarded against, especially if the government depends upon opinion for support. mr. smith, of maryland, said, they collected eight cents in his state, and it caused no complaint that he knew of. the question on imposing six cents on salt was put and carried, as was a motion for a drawback on salted provisions and fish. on manufactured tobacco. mr. sherman moved six cents, as he thought the duty ought to amount to a prohibition. this was agreed to. on snuff, ten cents per pound. mr. carroll moved to insert window and other glass. a manufacture of this article was begun in maryland, and attended with considerable success; if the legislature were to grant a small encouragement, it would be permanently established; the materials were to be found in the country in sufficient quantities to answer the most extensive demand. a desultory conversation arose in the committee respecting the propriety of receiving the motion at this time, when it was agreed to add on all window and other glass, except black quart bottles, ten per cent. _ad valorem_. mr. clymer informed the house of the state of the paper mills in pennsylvania; they were so numerous as to be able to supply a very extensive demand in that and the neighboring states; they annually produce about , reams of various kinds, which is sold as cheap as it can be imported. this manufacture certainly is an important one; and having grown up under legislative encouragement, it will be wise to continue it. thereupon it was agreed to lay an impost of seven and a half per cent. _ad valorem_ on blank books, writing, printing, and wrapping paper, and pasteboard; the same, without debate, was laid upon canes, walking-sticks, whips, clothing ready made, on gold, silver, and plated ware, and on jewelry and paste work; upon cabinet ware, buttons of metal, saddles, gloves of leather, all hats of beaver, fur, wool, or mixture of either, all millinery, castings of iron, or slit or rolled iron, all leather tanned or tawed, or manufactures thereof, except such as are otherwise rated. on every coach, chariot, or other four wheel carriage, and on every chaise, solo, or other two wheel carriage, or parts thereof, fifteen per cent. _ad valorem_. saturday, april . mr. white, from the committee of elections, reported that the committee had examined the certificates and other credentials of the members returned to serve in this house, and found them entitled to take their seats; which report was concurred with. _duties on imports._ the house again resolved itself into a committee of the whole on the state of the union, mr. page in the chair. on motion of mr. goodhue, anchors at seven and a half per cent. _ad valorem_, was added. on motion of mr. sherman, nutmegs, cinnamon, raisins, figs, currants, and almonds, were struck out. mr. ames introduced wool cards, with observing that they were manufactured to the eastward as good and as cheap as the imported ones. mr. clymer mentioned, that in the state of pennsylvania, the manufacture was carried to great perfection, and enough could be furnished to supply the demand. a duty of fifty cents per dozen was imposed on wool cards. on wrought tin ware, seven and a half per centum _ad valorem_; on every quintal of fish, fifty cents; and on every barrel of pickled fish, seventy-five cents. mr. fitzsimons moved the following: on all teas imported from china or india, in ships built in the united states, and belonging wholly to a citizen or citizens thereof, as follows: on bohea tea, per pound, six cents; on all souchong and other black teas, ten cents; on superior green teas, twenty cents; on all other teas, ten cents. on all teas imported from any other country, or from china or india, in ships which are not the property of the united states, as follows: on bohea tea, per pound, ten cents; souchong, and other black teas, fifteen cents; on superior green teas, thirty cents; on all other green teas, eighteen cents per pound. mr. fitzsimons supported the motion, by observing that one effect of the late glorious revolution was, to deprive the merchants of america of most of the channels of commerce which they had before pursued. this circumstance obliged them to search for other sources to employ their vessels in. it had been discovered that a pretty lucrative trade could be carried on with the countries in the east; the merchants have gone largely into it, and it at present gives employment to some thousand tons of american shipping and seamen; our success has been so great, as to excite the jealousy of europe, and nothing is left undone to cramp or prevent our commercial operations in that quarter. the legislature of pennsylvania, impressed with the importance of the subject, had granted it aid by discriminating in the manner he proposed to the committee; and with the like aid from the government of the united states, the merchants may no longer fear the machinations of the opulent companies in europe, who are unwilling to let us partake of a trade they so long have had a monopoly of. already the trade to india has had a very happy effect in favor of our inhabitants, by reducing commodities brought from thence to one half of their former price, and yet a sufficient profit is left to enable those concerned to carry it on with advantage. mr. madison felt a reluctance in being obliged to state his reasons why he doubted the policy of the proposed measure. what, said he, is its object? it is not to add to the revenue, for it will in fact tend to diminish it, in that proportion which the importation from china lessens that from other parts; it is not to increase our commerce, for long voyages are unfriendly to it; it is not to increase the importation of necessary articles, for india goods are mostly articles of luxury; it is not to carry off our superfluities, for these articles are paid for principally, if not altogether, in solid coin. if the trade is beneficial at all to the united states, it must be in this single point of view, that the articles can be imported cheaper through that channel than any other; and, if so, that it is the interest of the people to be supplied as cheap as possible. there are no collateral good purposes to claim our attention in this case. it is not in the nature of things that we should derive any other advantage than the one i have mentioned, without it is that of raising our india commerce from its weak and infant state to strength and vigor; to enable it to continue supplies at a cheaper rate than they could otherwise be obtained. mr. goodhue replied to mr. madison's observations, respecting the mode of paying for india goods, by informing the committee that very considerable quantities of ginseng, naval stores, lumber, and provisions, were shipped; other articles were sent also, and disposed of at ports on this side of china, in order to procure the most suitable cargo; so that we do not pay principally for their commodities in solid coin, but send off superfluities to a considerable amount, much more than if we were to procure our teas and nankeens from any part of europe. mr. madison had not made the objection merely because the specie was exported, but to show that it did not bring in an equivalent, as the goods were mostly of that kind which are termed luxuries. mr. boudinot declared himself a friend to the indian commerce. he thought it encouraged the employment of shipping, and increased our seamen; he knew its advantages to agriculture. the gentleman from virginia (mr. madison) supposed but little of our productions were sent in exchange for india goods; but our beef, pork, flour, and wheat, were shipped for this purpose, not to china, yet to ports where proper cargoes were taken in to answer the trade. encouragement and protection were necessary to prevent the large companies in europe from underselling our merchants, which they would readily do, at considerable loss, if they could, in consequence, put a stop to our trade. he hoped, therefore, the committee would not hesitate in adopting the motion. the motion was adopted accordingly. on coal per bushel ---- cents. mr. bland informed the committee, that there were mines opened in virginia capable of supplying the whole of the united states, and, if some restraint was laid on the importation of foreign coal, those mines might be worked to advantage. he thought it needless to insist upon the advantages resulting from a colliery, as a supply for culinary and mechanical purposes, and as a nursery to train up seamen for a navy. he moved three cents a bushel. mr. hartley was willing to admit a moderate duty, but thought three cents would be a great discouragement to those manufactures which necessarily consume large quantities of fuel. he moved one cent. mr. parker said, that a less sum than three cents would not answer the purpose intended. coal came from england as ballast, and was sold so low, as almost to prevent the working of their mines in virginia. he hoped, if the committee were disposed to encourage them, they would proportion the means to the end; a duty of one cent would be void; nothing under what was moved by his colleague (mr. bland) could answer the purpose. he hoped, therefore, the committee would agree to three cents. on the question, there appeared a majority in favor of three cents. after which the committee rose, and the house adjourned. monday, april . abraham baldwin and james jackson, from georgia, appeared and took their seats. _duties on imports._ the house again resolved itself into a committee of the whole on the state of the union, mr. page in the chair. the following clause of the bill was agreed to, viz: "on all other articles, five per cent. on their value at the time and place of importation, except tin in pigs, tin plates, lead, old pewter, brass, iron or brass wire, copper in plates, wool, dying woods and dying drugs, (other than indigo,) raw hides, beaver, and all other furs, and deer skins." mr. fitzsimons proposed a drawback of six cents per gallon on all rum distilled in the united states, exported without the limits of the same. mr. madison asked if the quantity of rum so exported was very considerable? he believed it was not; and he would not, for the sake of encouraging that branch of trade, open a door by which frauds on the revenue could be committed equal to the whole duty collected. mr. fitzsimons could not say what quantity of rum was exported in that way; but he feared, unless a drawback was allowed, it would be a great injury to the manufacture. at the time the duty of six cents on molasses was laid, he thought it was understood, the committee would allow a drawback on the rum exported. there seems to be an apprehension that the system of drawbacks will operate to the disadvantage of the revenue; but he believed a mode could be devised to prevent frauds, in this case, fully as effectually as on the importation. if this was not done, it would be time enough for gentlemen to oppose it; they would have this opportunity, because a bill, regulating the manner of collection, he presumed, would pass at the same time with the one for levying the duties. if drawbacks were not allowed, it would be a very considerable restraint on commerce, particularly on the india trade, which he believed was likely to be considerably extended. he was sorry the gentlemen from massachusetts were not there in their places,[ ] to give information to the committee respecting the quantity exported from that state; from pennsylvania the quantity was but small. mr. fitzsimons contended for drawbacks generally, but on this article it was particular injustice to omit it. the manufacture of rum was of considerable importance in the eastern states, but it would not be able to stand a successful competition with west india rum in foreign countries, while loaded with a duty of six cents per gallon. the tax on molasses was that sum, and he looked upon it to be the same thing as if it had been paid on the rum at distillation; one gallon of the former yielding but one of the latter. mr. madison thought there were very few cases in which drawbacks ought to be allowed, perhaps none but what related to the east india trade. the small proportion of distilled rum exported did not justify so great a risk; but of the small proportion which went abroad, the greatest part went to the coast of africa. he feared this trade was inconsistent with the good of mankind, and ought to be reprobated instead of encouraged. mr. bland said the committee had spent several days in encouraging manufactures, by selecting articles for revenue, and were now extending their views to the encouragement of commerce. he thought there was some impropriety in combining the clause proposed in this part of the bill, and even doubted if it was in order; therefore would vote against it. the question was put on the motion for a drawback on country rum, and lost. mr. fitzsimons had another clause upon the same subject, only on more general principles; he hoped gentlemen would consider well before they doomed it to share the fate of the former. it was to this purpose: that all the duties paid, or secured to be paid, upon goods imported, shall be returned or discharged upon such of the said goods, as shall within ---- months be exported to any country without the limits of the united states, except so much as shall be necessary to defray the expense that may have accrued by the entry and the safe keeping thereof. the subjects of duties and drawbacks are so connected by their nature, that he did not see how they were to be separated. gentlemen did not imagine that what had been done tended to favor commerce; it certainly did not. every impost which is paid is a disadvantage to the person concerned in trade, and nothing but necessity could induce a submission to it. the interest of the landholder is undoubtedly blended with the commercial interest; if the latter receive an injury, the former will have to sustain his proportion of it; if drawbacks are not allowed, the operations of trade will be considerably shackled; merchants will be obliged, in the first instance, to send their cargoes to the place of consumption, and lose the advantage of a circuitous freight, which alone is a profit of no small magnitude. mr. hartley expressed his sorrow for the last decision of the committee; he wished the question had not been put in the absence of the gentlemen from massachusetts, who were on a business in some degree of a public nature. the present motion was only just brought in; he submitted, therefore, to the committee, if it were not best to pass it over for the present, in order to give time for consideration. tuesday, april . mr. hartley asked and obtained leave of absence. wednesday, april . peter sylvester, from new york, appeared and took his seat. thursday, april . john hathorn, from new york, appeared and took his seat. friday, april . mr. boudinot reported, from the committee appointed to attend with a committee from the senate, to receive the president of the united states, at the place of his embarkation from new jersey, that the committee did, according to order, together with a committee from the senate, attend at elizabethtown, in new jersey, on the d instant, at which place the two committees met the president, and thence embarked for this city, where they arrived about three o'clock in the afternoon of the same day, and conducted him to the house appointed for his residence. the speaker laid before the house a letter from the vice president of the united states, enclosing a resolution of the senate, appointing a committee to consider and report what style or titles it will be proper to annex to the office of president and vice president of the united states, if any other than those given in the constitution; also to consider of the time, place, and manner in which, and the person by whom, the oath prescribed by the constitution, shall be administered to the president, and to confer thereon with such committee as this house should appoint for that purpose; whereupon, _ordered_, that a committee, to consist of five members, be appointed for the purpose expressed in the resolution of the senate. the members elected were messrs. benson, ames, madison, carroll, and sherman. _duties on imports._ the house then proceeded to consider the resolutions reported by the committee of the whole on the state of the union. mr. boudinot complained that the articles were generally taxed too high, not too high for the article to bear, but too high for the due collection of the revenue. every thing we tax should be considered as it relates to the interest of the importer, as well as other circumstances; now, if it is discovered that the duties are so great as to make it a beneficial trade to the merchant to run his goods, he will do so, and injure the revenue. mr. madison was sensible that high duties had a tendency to promote smuggling, and in case those kinds of frauds were successfully practised the revenue must be diminished; yet he believed the sum proposed on spirits was not so high as to produce those effects to any considerable degree. if any article is capable of paying a heavy duty, it is this; if the duty on any article is capable of being collected with certainty, it is this; if a duty on any article is consonant with the sentiment of the people of america, it is this; why then should not the article be made as tributary as possible to the wants of government? but, besides these favorable circumstances, i think the combination of the merchants will come in aid of the law; the people will also lend their aid. these circumstances would do much toward insuring the due collection of the revenue. mr. jackson seconded mr. boudinot's motion for reducing the duties, because he was well convinced they were too high even to be well collected, unless we establish custom-houses every ten or twelve miles, like watch-towers, along the sea-coast. when trade is so unproductive, the legislature ought to be careful how they make it more worth a man's while to live by committing frauds upon the revenue than by practising honest commerce. there is another consideration which particularly regarded the georgia trade. that country, abounding with lumber of the most luxurious growth, could only exchange it for rum; and a very considerable commerce grew out of this intercourse favorable to georgia. this would be affected by the imposition of heavy duties; but commercial considerations, we shall be told, form only a secondary object in this business. there is another proposition in which he acquiesced; it would be more convenient, and more to the honor of the house, to make their first essay with low duties; because, if they persisted in laying them high, they would be compelled to an inglorious retreat, and the government would be insulted. in the state he represented, it was next to impossible to collect the revenue, the country was so intersected with navigable creeks and rivers, if the people were disposed to evade the payment of it; and there was no more certain way to produce this disposition than by making it their interest to defraud you. mr. boudinot was not ashamed to confess that he wanted the advantages of commercial knowledge on a question where the principles of trade were interwoven; but he opposed high duties on a conviction in his own mind that they could not be collected. he repeated some few of his former arguments to show why he held this opinion; but it was not the particular article of rum that he was opposed to, it was the high scale on which the duties were laid generally, and that only from an idea that greater revenue might be obtained from less duties. mr. tucker wished the duties to be lowered, and proposed to the committee to strike off seven cents from the fifteen; by varying his motion in this manner, he expected the sense of the house could be taken on his proposition first, notwithstanding the rule that "the question shall be put on the highest sum first." he joined in the opinion that high duties were productive of smuggling; that notwithstanding the powers and vigilance of custom-house officers, and the whole executive, contraband trade is carried on in every nation where the duties are so high; the facility with which it could be done in america ought to show a prudent legislature the degree of probability; unless this can be guarded against, what will the law avail? it can avail nothing. besides, the higher the duty is laid, the more you expose the officer to the temptation of being corrupted; when that is done, the revenue will be very unproductive. mr. bland would second the gentleman last up, but thought it was not in order to have the question taken first on the lowest sum. mr. fitzsimons observed to the house, that the decision of the present question, in his mind, involved some very important alterations in the present measure; the consequences resulting from which ought to be well considered. in order, therefore, to gain time for this purpose, he would move an adjournment; whereupon the house adjourned. saturday, april . mr. benson, from the committee appointed to consider of the time, place, and manner in which, and of the person by whom the oath prescribed by the constitution shall be administered to the president of the united states, and to confer with a committee of the senate for the purpose, reported as followeth: that the president hath been pleased to signify to them that any time or place which both houses may think proper to appoint, and any manner which shall appear most eligible to them, will be acceptable to him: that requisite preparations cannot probably be made before thursday next: that the president be on that day formally received by both houses in the senate chamber: that the representatives' chamber being capable of receiving the greater number of persons, that therefore the president do take the oath in that place, and in the presence of both houses: that after the formal reception of the president in the senate chamber, he be attended by both houses to the representatives' chamber, and that the oath be administered by the chancellor of this state. the committee further report it as their opinion, that it will be proper that a committee of both houses be appointed to take order for further conducting the ceremonial. the said report was twice read; and, on the question put thereupon, agreed to by the house. _ordered_, that messrs. benson, ames, and carroll be a committee on the part of this house, pursuant to the said report. monday, april . the speaker laid before the house a letter from the vice president of the united states, enclosing certain proceedings of the senate, touching the ceremonial of the formal reception of the president of the united states, by both houses, which were read, and ordered to lie on the table. mr. benson, from the committee of both houses, appointed to take order for conducting the ceremonial of the formal reception of the president of the united states, reported as followeth: "that it appears to the committee more eligible that the oath should be administered to the president in the outer gallery adjoining the senate chamber, than in the representatives' chamber, and therefore submit to the respective houses the propriety of authorizing their committees to take order as to the place where the oath shall be administered to the president, the resolutions of saturday, assigning the representatives' chamber as the place, notwithstanding." the said report being twice read, _resolved_, that this house doth concur in the said report, and authorize the committee to take order for the change of place thereby proposed. the speaker laid before the house a letter from the vice president of the united states, enclosing two orders of the senate, one of the th instant, appointing a committee to confer with any committee to be appointed on the part of this house, respecting the future disposition of the papers, &c. in the office of the late secretary of the united states: the other of the th instant, for the attendance of both houses, with the president of the united states, after the oath shall be administered to him, to hear divine service at st. paul's chapel: which was read, and ordered to lie on the table. tuesday, april . mr. richard bland lee, from the committee to whom was recommitted the report respecting the mode of communicating papers, bills, and messages, between the two houses, reported as followth: "when a message shall be sent from the senate to the house of representatives, it shall be announced at the door of the house by the doorkeeper, and shall be respectfully communicated to the chair, by the person by whom it may be sent. "the same ceremony shall be observed when a message shall be sent from the house of representatives to the senate. "messages shall be sent by such persons as a sense of propriety in each house may determine to be proper." the said report was twice read, and, on the question put thereupon, agreed to by the house. a letter from matthias ogden, of new jersey, referring to sundry petitions from citizens of that state, complaining of illegality in the late election of representatives for that state to this house was read and ordered to lie on the table. the order of the senate of the th instant was read, appointing a committee to confer with any committee to be appointed on the part of this house, respecting the future disposition of the papers in the office of the late secretary of the united states; whereupon _ordered_, that messrs. trumbull, cadwalader, and jackson, be a committee for that purpose. wednesday, april . the house proceeded to consider the report from the committee of elections (which lay on the table) on the petition of david ramsay, of the state of south carolina, suggesting that william smith, returned a member of this house, as elected within that state, was, at the time of his election, ineligible; and the said report being amended to read as followeth: that in this case it will be sufficient in the first instance, that a committee take such proofs as can be obtained in this city respecting the facts stated in the petition, and report the same to the house--that mr. smith be permitted to be present from time to time when such proofs are taken, to examine the witnesses, and to offer counter-proofs, which shall also be received by the committee, and reported to the house--that if the proofs so to be reported shall be declared by the house insufficient to verify the material facts stated in the petition, or such other facts as the house shall deem proper to be inquired into, it will then be necessary for the house to direct a further inquiry, and especially the procuring whatever additional testimony may be supposed to be in south carolina, as the case may require--that all questions arising on the proofs be decided by the house, without any previous opinion thereon reported by a committee. _resolved_, that this house doth agree to the said report, and that it be an instruction to the committee of elections to proceed accordingly. on motion, _ordered_, that a committee be appointed to prepare and report an estimate of the supplies requisite for the present year, and of the net produce of the impost as agreed to by the house, and that messrs. gerry, smith, (of maryland,) and parker, be of the said committee. the house proceeded to consider the following resolution of the senate, to wit: "in senate, april . "_resolved_, that after the oath shall have been administered to the president, he, attended by the vice president, and the members of the senate and house of representatives, proceed to st. paul's chapel to hear divine service, to be performed by the chaplains to congress already appointed:" whereupon, _resolved_, that this house doth concur with the senate in the said resolution: amended to read as followeth, to wit: "that after the oath shall have been administered to the president, the vice president and members of the senate, the speaker and members of the house of representatives, will accompany him to st. paul's chapel, to hear divine service performed by the chaplains of congress." _ordered_, that the clerk of this house do carry the said resolution to the senate, and desire their concurrence.--adjourned. thursday, april . jonathan grout, from massachusetts, appeared and took his seat. this being the day on which the president of the united states was inaugurated, no other business, of course, was attended to. the president's address to both houses appears in the proceedings of the senate.[ ] friday, may . the speaker laid before the house a copy of the speech of the president of the united states, to both houses of congress, delivered yesterday in the senate chamber, immediately after his inauguration, which being read, on motion, _resolved_, that the said speech be committed to a committee of the whole house. the house accordingly resolved itself into a committee of the whole, mr. page in the chair. and after adopting the following resolution, the committee rose, and reported it to the house, which agreed to it. _resolved_, that it is the opinion of this committee, that an address to the president ought to be prepared, expressing the congratulations of the house of representatives, on the distinguished proof given him of the affection and confidence of his fellow-citizens, by the unanimous suffrage which has appointed him to the high station which he fills; the approbation felt by the house of the patriotic sentiments and enlightened policy recommended by his speech; and assuring him of their disposition to concur in giving effect to every measure which may tend to secure the liberties, promote the harmony, and advance the happiness and prosperity of their country. _ordered_, that a committee to consist of five members be appointed to prepare an address pursuant to the said resolution. the members elected messrs. madison, clymer, sherman, gale, and benson. a motion was made that the house do come to the following resolution: _resolved_, that ---- per annum be the compensation to be allowed to the president of the united states, during the term for which he is to be elected. the said resolution being read, was committed to a committee of the whole house. the house then proceeded by ballot to the appointment of a chaplain to congress on the part of this house. upon examining the ballots, it appeared that the rev. william linn was elected. samuel livermore, from new hampshire, appeared and took his seat. tuesday, may . mr. benson, from the committee appointed to consider of, and report what style or titles it will be proper to annex to the office of president and vice president of the united states, if any other than those given in the constitution, and to confer with a committee of the senate appointed for the same purpose, reported as followeth: "that it is not proper to annex any style or title to the respective styles or titles of office expressed in the constitution." and the said report being twice read at the clerk's table, was, on the question put thereupon, agreed to by the house. _ordered_, that the clerk of this house do acquaint the senate therewith. mr. madison, from the committee appointed to prepare an address on the part of this house to the president of the united states, in answer to his speech to both houses of congress, reported as followeth: _the address of the house of representatives to george washington, president of the united states._ sir: the representatives of the people of the united states present their congratulations on the event by which your fellow-citizens have attested the pre-eminence of your merit. you have long held the first place in their esteem. you have often received tokens of their affection. you now possess the only proof that remained of their gratitude for your services, of their reverence for your wisdom, and of their confidence in your virtues. you enjoy the highest, because the truest honor, of being the first magistrate, by the unanimous choice of the freest people on the face of the earth. we well know the anxieties with which you must have obeyed a summons from the repose reserved for your declining years, into public scenes, of which you had taken your leave for ever. but the obedience was due to the occasion. it is already applauded by the universal joy which welcomes you to your station. and we cannot doubt that it will be rewarded with all the satisfaction with which an ardent love for your fellow-citizens must review successful efforts to promote their happiness. this anticipation is not justified merely by the past experience of your signal services. it is particularly suggested by the pious impressions under which you mean to commence your administration, and the enlightened maxims by which you mean to conduct it. we feel with you the strongest obligations to adore the invisible hand which has led the american people through so many difficulties, to cherish a conscious responsibility for the destiny of republican liberty; and to seek the only sure means of preserving and recommending the precious deposit in a system of legislation founded on the principles of an honest policy, and directed by the spirit of a diffusive patriotism. the question arising out of the fifth article of the constitution will receive all the attention demanded by its importance; and will, we trust, be decided, under the influence of all the considerations to which you allude. in forming the pecuniary provisions for the executive department, we shall not lose sight of a wish resulting from motives which give it a peculiar claim to our regard. your resolution, in a moment critical to the liberties of your country, to renounce all personal emolument, was among the many presages of your patriotic services, which have been amply fulfilled; and your scrupulous adherence now to the law then imposed on yourself, cannot fail to demonstrate the purity, whilst it increases the lustre of a character which has so many titles to admiration. such are the sentiments which we have thought fit to address to you. they flow from our own hearts, and we verily believe that, among the millions we represent, there is not a virtuous citizen whose heart will disown them. all that remains is, that we join in your fervent supplications for the blessings of heaven on our country; and that we add our own for the choicest of these blessings on the most beloved of our citizens. said address was committed to a committee of the whole; and the house immediately resolved itself into a committee, mr. page in the chair. the committee proposing no amendment thereto, rose and reported the address, and the house agreed to it, and resolved that the speaker, attended by the members of this house, do present the said address to the president. _ordered_, that messrs. sinnickson, coles, and smith (of south carolina), be a committee to wait on the president to know when it will be convenient for him to receive the same. mr. clymer, from the committee appointed for the purpose, reported a bill for laying a duty on goods, wares, and merchandise, imported into the united states, which passed its first reading. _amendment of the constitution._ [mr. bland presented the application of the legislature of virginia, to have a convention called of deputies from all the states, to consider the defects of the constitution and report amendments; and moved to refer the application to the committee of the whole on the state of the union.] mr. boudinot.--according to the terms of the constitution, the business cannot be taken up until a certain number of states have concurred in similar applications; certainly the house is disposed to pay a proper attention to the application of so respectable a state as virginia, but if it is a business which we cannot interfere with in a constitutional manner, we had better let it remain on the files of the house until the proper number of applications come forward. mr. bland thought there could be no impropriety in referring any subject to a committee; but surely this deserved the serious and solemn consideration of congress. he hoped no gentleman would oppose the compliment of referring it to a committee of the whole; beside, it would be a guide to the deliberations of the committee on the subject of amendments, which would shortly come before the house. mr. madison said, he had no doubt but the house was inclined to treat the present application with respect, but he doubted the propriety of committing it, because it would seem to imply that the house had a right to deliberate upon the subject. this, he believed, was not the case until two-thirds of the state legislatures concurred in such application, and then it is out of the power of congress to decline complying, the words of the constitution being express and positive relative to the agency congress may have in case of applications of this nature. "the congress, wherever two-thirds of both houses shall deem it necessary, shall propose amendments to this constitution; or, on the application of the legislatures of two-thirds of the several states, shall call a convention for proposing amendments." from hence it must appear that congress have no deliberative power on this occasion. the most respectful and constitutional mode of performing our duty will be, to let it be entered on the minutes, and remain upon the files of the house until similar applications come to hand from two-thirds of the states. mr. boudinot hoped the gentleman who desired the commitment of the application would not suppose him wanting in respect to the state of virginia. he entertained the most profound respect for her--but it was on a principle of respect to order and propriety that he opposed the commitment; enough had been said to convince gentlemen that it was improper to commit--for what purpose can it be done? what can the committee report? the application is to call a new convention. now, in this case, there is nothing left for us to do, but to call one when two-thirds of the state legislatures apply for that purpose. he hoped the gentleman would withdraw his motion for commitment. mr. bland.--the application now before the committee contains a number of reasons why it is necessary to call a convention. by the fifth article of the constitution, congress are obliged to order this convention when two-thirds of the legislatures apply for it; but how can these reasons be properly weighed, unless it be done in committee? therefore, i hope the house will agree to refer it. mr. huntington thought it proper to let the application remain on the table, it can be called up with others when enough are presented to make two-thirds of the whole states. there would be an evident impropriety in committing, because it would argue a right in the house to deliberate, and, consequently, a power to procrastinate the measure applied for. mr. tucker thought it not right to disregard the application of any state, and inferred, that the house had a right to consider every application that was made; if two-thirds had not applied, the subject might be taken into consideration, but if two-thirds had applied, it precluded deliberation on the part of the house. he hoped the present application would be properly noticed. mr. gerry.--the gentleman from virginia (mr. madison) told us yesterday, that he meant to move the consideration of amendments on the fourth monday of this month; he did not make such motion then, and may be prevented by accident, or some other cause, from carrying his intention into execution when the time he mentioned shall arrive. i think the subject however is introduced to the house, and, perhaps, it may consist with order to let the present application lie on the table until the business is taken up generally. mr. page thought it the best way to enter the application at large upon the journals, and do the same by all that came in, until sufficient were made to obtain their object, and let the original be deposited in the archives of congress. he deemed this the proper mode of disposing of it, and what is in itself proper can never be construed into disrespect. mr. bland acquiesced in this disposal of the application. whereupon it was ordered to be entered at length on the journals, and the original to be placed on the files of congress. _duties on tonnage._ the house then resumed the consideration of the report of the committee of the whole on the state of the union, in relation to the duty on tonnage. mr. jackson (from georgia) moved to lower the tonnage duty from thirty cents, as it stood in the report of the committee on ships of nations in alliance, and to insert twenty cents, with a view of reducing the tonnage on the vessels of powers not in alliance. in laying a higher duty on foreign tonnage than on our own, i presume, said he, the legislature have three things in contemplation: st, the encouragement of american shipping; ndly, raising a revenue; and rdly, the support of light-houses and beacons for the purposes of navigation. now, for the first object, namely, the encouragement of american shipping, i judge twenty cents will be sufficient, the duty on our own being only six cents; but if twenty cents are laid in this case, i conclude that a higher rate will be imposed upon the vessels of nations not in alliance. as these form the principal part of the foreign navigation, the duty will be adequate to the end proposed. i take it, the idea of revenue from this source is not much relied upon by the house; and surely twenty cents is enough to answer all the purposes of erecting and supporting the necessary light-houses. on a calculation of what will be paid in georgia, i find a sufficiency for these purposes; and i make no doubt but enough will be collected in every state from this duty. the tonnage employed in georgia is about twenty thousand tons, fourteen thousand tons are foreign; the duty on this quantity will amount to £ s. d. georgia currency. i do not take in the six cents upon american vessels, yet this sum appears to be as much as can possibly be wanted for the purpose of improving our navigation. i shall just mention to the house one observation more, to show that the produce of the southern states cannot bear a high tonnage duty. the value of rice, tobacco, and indigo has fallen so much in foreign markets, that they are no longer worth the exportation. the merchants complain that they lose by those remittances; and they have now got into the practice of sending off specie; forty thousand dollars have been sent in one vessel. this is a daily practice, and we shall shortly have no specie left to pay our debts. the difficulty will be increased, as no money will remain to pay for the duties imposed on the articles imported. i hope the government will not insist upon our walking before we are able to creep, or compel us to make bricks without straw. these are my sentiments on the present question; if they have weight, the house will agree with me in reducing the duty; but if the house persist in continuing the high rates agreed to in committee, i shall content myself with having done my duty by warning them of the danger. mr. ames.--i hope the reduction moved for by the gentleman who has just sat down will not be agreed to; for i trust the house is not satisfied with the reasons offered in its support. a great deal has been now said respecting the jealousy entertained of the advantages given by this preference to some states; a great deal was also said before the committee adopted the measure. i do not think this doctrine of jealousy is natural to us. i know it has been cultivated by the british, and disseminated through the united states; they had their particular views in exciting such ideas; but i do not believe, that because we have various we have opposite interests. upon examination there will be found but few of our interests that clash with each other so much as to admit a well grounded jealousy. nature has so arranged our circumstances, that the people of the several states pursue various employments which support each other. if one end of the continent is employed in manufactures and commerce, the other is attentive to agriculture; so far are they, therefore, from being rivals, that, both in a natural and political sense, they mutually are necessary and beneficial to each other's interests. i wish gentlemen, before they insist upon this jealousy, would point out the causes of its existence. so far from this being the case, i believe the individual interest of each part is compatible with the general interest; and that the public opinion is the same, is clearly demonstrated by the attachment professed by every part to remain in union--it is acknowledged, that on this principle our existence as a nation depends. this being the case, i do not listen with any great degree of concern to arguments founded on that cause. so far from surveying the affluence or ease of my southern brethren with the jaundiced eye of jealousy, i contemplate their prosperity with ineffable satisfaction. i look with an equal eye upon the success of every state through the whole extent of united america. i wish their interests to be equally consulted; and if i may judge of the feelings of the people, by those of their representatives on this floor, i may venture to say there was never less reason to apprehend discord or envy than at this time. i believe the fact is so, because i feel it. i appeal with confidence to the gentlemen round me, whether they have not found the disposition of those who were suspected most to favor navigation, ready to concede what was asked for the encouragement of every other interest? whether a like conciliatory conduct has not been observed by the advocates of manufactures? i ask gentlemen, whether the language they have heard from the several parts of this house has not been much more congenial to their sentiments than they expected, and the measures pursued more coincident to their feelings than what they looked for? i believe, at the moment i am making this observation, the breasts of gentlemen beat in concert with it; i am sure my feelings accord most cordially in the sentiment. i believe the encouragement of our navigation is looked upon to be indispensably necessary; its importance has never been denied. now, i ask if gentlemen are inclined to support and extend our navigation, whether they are not willing to proportion the mean to the end, and adopt measures tending to increase the quantity of american shipping? it has been often justly remarked, that the constitution, under which we deliberate, originated in commercial necessity. the mercantile part of our fellow-citizens, who are the firm friends to an equal and energetic government, hope the improvement of our navigation may obtain the attention of congress; it is but justice that it be early attended to, and it will give general satisfaction to find it considered as an important object by the general government. the most liberal of the friends of american commerce only wish for such regulations as may put our navigation on a footing with foreigners. if other nations have restricted our navigation by regulations or charges, we must restrict them by a tonnage, or some other duty, so as to restore an equality; but this will not be found to be the case in the present instance. the moderate and inconsiderable duty of thirty cents on foreigners in treaty, and fifty cents on others not in treaty, will not enable our vessels to go abroad with as much advantage as foreigners can come here; so that the proposed encouragement may perhaps fall short of procuring us a maritime strength equal to our national security. the observations of gentlemen tending to show that one end of the continent will suffer more by the regulation contemplated by the house than the other, are, i conceive, not well founded. the price of freight will equalize itself. if the people of carolina or georgia pay a high freight in consequence of the tonnage duty, the state of massachusetts must pay the same, or her vessels will go to the southward in search of freight, so that the eastern states have no peculiar interest in the measure. it has been suggested, that because massachusetts has foreign vessels in her employ, she cannot transport produce for others--massachusetts, by reason of that influence which britain has, is obliged to receive some of her supplies in foreign bottoms, but this is only a proof that the evil requires a remedy. i might here easily draw a picture of the distress to which the eastern country is subjected for want of a protecting hand: her shipwrights are glad to work for two shillings and sixpence a day, or less, and less will not maintain them and their families. their lumber is of no value, it lies rotting in the forests, for want of encouragement to frame it into ships; the other artisans are clamorous for employment, and without a speedy relief they will have to desert the country. i believe if this relief is extended to them, it will give a spring to their industry, and a little time will render them serviceable to their fellow-citizens in the south. they will find markets for their tobacco, which is now rotting, and their valuable productions will be transported to all parts of the globe. from these circumstances, i am led to beg gentlemen to consider, that the improvement and extension of our navigation is one of the most important objects that can come before the legislature; that there are abundant proofs that a regulation in favor of american shipping is absolutely necessary to restore them to an equality with foreigners; and if they are convinced with me of its importance and necessity, they will not think the sums agreed to in committee too high for the purpose of protecting the navigation of the united states. mr. burke.--something has been said relative to a jealousy subsisting in the southern states respecting the navigation interest; i shall, therefore, make an observation or two on that subject. so far as my own knowledge of that country goes, i believe the citizens look with indignation at the power which foreigners have over their commerce. so far from being jealous of the eastern states, they look forward to some future day when their navigation will be secured to that part of the union. they know that it possesses superior maritime advantages, and expect they will hereafter afford security to them. they know, that from the spirit and industry of the people of new england, they may derive commercial and agricultural benefits. this is also my own judgment on the point. i know they cannot now supply us with vessels to transport our produce, but i hope the time will shortly come when they will have the ability; in the mean time, when i consider how much the southern staples are fallen in price, and the great debts due in that country, i must say, that i fear a heavy tonnage will be attended with very dangerous consequences. there are very few foreigners but british come among us, and a high duty laid upon their ships will fall severely upon the planters. the southern people are willing to render any assistance to increase the maritime importance of the eastern states, as soon as they are able; if, therefore, a distant period is fixed for the commencement of the high duties, i shall be in favor of them; but if they are to take place immediately, i fear they will do a great deal of injury in the present deranged and calamitous situation of our country. mr. goodhue was glad to hear from the several parts of the house, that there was a disposition to give a preference to american shipping. this principle being fixed, it only remained for the house to ascertain the proper degree of encouragement to be given; the rate agreed to in the committee was not more than good policy required. the gentleman from georgia fears that the people of his state will suffer for want of vessels, or pay a higher freight than their neighbors; but a high duty is not contended for in the first instance, it is only such a degree of encouragement as will enable us to enter into a competition with foreigners in our own carrying trade. the same gentleman has said, massachusetts has not vessels enough for her own commerce, and, therefore, cannot furnish any for others; although massachusetts employs or , tons of foreign shipping; yet it is supposed she supplies the other states with , tons. the circumstance of , hogsheads of tobacco lying to rot for want of vessels, when some thousand tons of ours are idle for want of employment, does not prove the want of shipping, so much as that the price of the article is too high for a foreign market. if the produce is held so high as not to bear the expense of transportation, the merchants who import will be obliged to send off money in payment. in order to remedy these inconveniences in future, it will be necessary to hold out sufficient encouragement for the construction of vessels. perhaps it may be good policy to allow a moderate tonnage duty at this time, to be increased hereafter. mr. madison.--i believe every gentleman who hears the observations from the different quarters of this house, discovers great reason for every friend of the united states to congratulate himself upon the evident disposition which has been displayed to conduct our business with harmony and concert. we have evinced a disposition different from what was expected to arise from the different interests of the several parts of the union. i am persuaded, that less contrariety of sentiment has taken place than was supposed by gentlemen, who did not choose to magnify the causes of variance; every thing we have hitherto done, tends to make this evident. the importance of the union is justly estimated by all its parts; this being founded upon a perfect accordance of interest, it may become perpetual. i know that the point before us has often been selected as a proof that there was an incompatibility of interest in the united states. on this opinion i beg leave to remark, that the difference in point of capacity in the several states to build ships, and furnish seamen, is much less than has generally been supposed. from the extremity of the northern states until we reach south carolina, materials of all sorts for ship-building can be obtained in abundance from the bounty of nature; even georgia abounds with materials of superior quality; although their population disqualifies them for ship-building at present, yet their advantages are such as to enable them in a short time to rival the most prosperous state. in the next place, i may remark, that so far as the encouragement of our own shipping will be given at the expense of the people of the united states, it will diffuse and equalize its operations in every part. the ships belonging to one place will, like the people, seek employment in another where better wages are obtained, and this, in its operations, will level any inequalities supposed to arise from legislative interference. wednesday, may . john vining, from delaware, appeared and took his seat. the bill for laying a duty on goods, wares, and merchandises imported into the united states, was read a second time, and ordered to be committed to a committee of the whole house to-morrow. on motion of mr. sherman, the house entered upon the consideration of the amendments of the senate to the bill for regulating the time and manner of administering certain oaths. the following amendments being before them, to wit: "that the members of the several state legislatures, and all executive and judicial officers of the several states, who have been heretofore chosen or appointed, or who shall be chosen or appointed before the first day of august next, and who shall then be in office, shall, within one month thereafter, take the same oath or affirmation, except where they shall have taken it before; which may be administered by any person authorized by the law of the state in which such office shall be holden to administer oaths. and the members of the several state legislatures, and all executive and judicial officers of the several states, who shall be chosen or appointed after the said first day of august, shall, before they proceed to execute the duties of their respective offices, take the foregoing oath or affirmation, which shall be administered by the person or persons who by the law of the state shall be authorized to administer the oath of office; and the person or persons so administering the oath hereby required to be taken shall cause a record or certificate thereof to be made, in the same manner as, by the law of the state, he or they shall be directed to record or certify the oath of office." mr. gerry said, he did not discover what part of the constitution gave to congress the power of making this provision, except so much of it as respects the form of the oath; it is not expressly given by any clause of the constitution; and if it does exist, must arise from the sweeping clause, as it is frequently termed, in the eighth section of the first article of the constitution, which authorizes congress "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the united states, or in any department or office thereof." to this clause there seems to be no limitation, so far as it applies to the extension of the powers vested by the constitution; but even this clause gives no legislative authority to congress to carry into effect any power not expressly vested by the constitution. in the constitution, which is the supreme law of the land, provision is made, that the members of the legislatures of the several states, and all executive and judicial officers thereof, shall be bound by oath to support the constitution. but there is no provision for empowering the government of the united states, or any officer or department thereof, to pass a law obligatory on the members of the legislatures of the several states, and other officers thereof, to take this oath. this is made their duty already by the constitution, and no such law of congress can add force to the obligation; but, on the other hand, if it is admitted that such a law is necessary, it tends to weaken the constitution which requires such aid; neither is any law, other than to prescribe the form of the oath, necessary or proper to carry this part of the constitution into effect; for the oath required by the constitution being a necessary qualification for the state officers mentioned, cannot be dispensed with by any authority whatever other than the people, and the judicial power of the united states, extending to all cases arising in law or equity under this constitution. the judges of the united states, who are bound to support the constitution, may, in all cases within their jurisdiction, annul the official acts of state officers, and even the acts of the members of the state legislatures, if such members and officers were disqualified to do or pass such acts, by neglecting or refusing to take this oath. he concluded his observations, by submitting to the house the propriety of appointing a committee of conference, to state to the senate the doubts of the house upon this subject. mr. bland had no doubt respecting the powers of congress on this subject. the evident meaning of the words of the constitution implied, that congress should have the power to pass a law, directing the time and manner of taking the oath prescribed for supporting the constitution. there can be no hesitation respecting the power to direct their own officers, and the constituent parts of congress; besides, if the state legislatures were to be left to arrange and direct this business, they would pass different laws, and the officers might be bound in different degrees to support the constitution. he not only thought congress had the power to do what was proposed by the senate, but he judged it expedient also, and therefore should agree to the amendment. mr. jackson.--i believe this house, and the other branch of the legislature, have the power, by the constitution, to pass a law, obliging the officers of the state governments to take the oath required by the constitution that their states have adopted, and which has become the supreme law of the land. i believe the general opinion of the house inclines to favor this sentiment. it then only remains to examine the measure on the principle of policy. here i must give my opinion. i believe, sir, that it is not time to bring it forward, that it is not expedient at present, because some jealousies exist respecting the jurisdiction of the federal and state governments. the states had better be left to regulate this matter among themselves, for an oath that is not voluntary is seldom held sacred. compelling people to swear to support the constitution, will be like the attempts of britain, during the late revolution, to secure the fidelity of those who fell within the influence of her arms, and, like those attempts, they will be frustrated; the moment the party could get from under her wings, the oath of allegiance was disregarded. if the state officers will not willingly pay this testimony of their attachment to the constitution, what is extorted from them against their inclination is not much to be relied on. besides, it argues a jealousy in the national government, which can have no foundation. can any thing show more friendly to the union than adopting the constitution, and sending us here to administer it? if we judge from these circumstances, there is good reason to believe that the state governments will pay a proper attention to the duty enjoined upon them by the constitution. i shall readily agree, if they do not pay this attention, that the national legislature ought to exercise its powers to compel them; but they know the necessity there is for conforming to what the constitution orders; if they neglect it, it becomes in some degree a relinquishment of their power in government. no state legislature can pass an act that will have the efficacy of a law. suppose a judge on the bench were to condemn a criminal to die for an offence; the sentence could not be carried into execution, if the judge had omitted to qualify himself for the discharge of the duties of his office. in short, there would be a total stagnation of the government, its vital powers would be suspended, until they were revived by the action of the constitution. besides, the constitution partakes of the nature of a compact; it guaranties to the state governments the principles of a republican government, conditionally, that the states conform themselves to what is declared in the constitution; they must therefore take the oath directed by the constitution, or infringe the compact; in which case i apprehend, the guaranty is virtually withdrawn; this is another inducement for the states to perform their duty. mr. lawrence.--i believe, mr. speaker, if there is any thing improper in making provision that the officers shall take an oath to support the government, the fault cannot properly be charged upon us, because the provision is already made, and adopted by our constituents; and we are to suppose that some beneficial effects were intended by it; while we are reprobating the measure, let us take care we do not fall under the censure, which the observation of the gentleman last up brought to our view, of taking an oath, and neglecting to fulfil the duties enjoined by it. i believe, sir, that the persons who are to take this oath in conformity to the constitution, will conceive themselves, after having taken such oath, under an obligation to support the constitution. it has been said by one gentleman, that congress have not the power to carry this regulation into effect. only a few words will be necessary to convince gentlemen that congress have this power. it is declared by the constitution, that its ordinances shall be the supreme law of the land. if the constitution is the supreme law of the land, every part of it must partake of this supremacy; consequently, every general declaration it contains is the supreme law. but then these general declarations cannot be carried into effect, without particular regulations adapted to the circumstances. these particular regulations are to be made by congress, who, by the constitution, have power to make all laws necessary or proper to carry the declarations of the constitution into effect. the constitution likewise declares, that the members of the state legislatures, and all officers, executive and judicial, shall take an oath to support the constitution. this declaration is general, and it lies with the supreme legislature to detail and regulate it. the law is to supply the necessary means of executing the principle laid down; for how can it be carried into effect in any other manner? this explanation, i trust, convinces gentlemen that the power of enacting such a law exists in congress. but whether it is good policy or not to do it, depends upon a variety of circumstances; for my own part, i think it prudent to make the necessary regulations for carrying into effect this part of the constitution. mr. sylvester.--i am an advocate for supporting the dignity of the house, and to me it appears somewhat inconsistent that we should change our sentiments in order to conform to the amendment of the senate, without knowing the reason upon which they have founded the proposed measure. no doubt but sufficient reasons have occurred to them, but none have appeared to this house. if we are to follow the senate in all the alterations they propose, without hearing reasons to induce a change, our time in deliberation is taken up unnecessarily. with respect to any member of this house who has not taken the oath, i concur that they are to pay obedience to what the authority of the legislature may order on this head. nay, i am equally clear that the power to regulate the members of the state governments in taking the oath, is either lodged with the congress of the united states, or nowhere. but, it appears to me, that the state legislatures have a concurrent power with congress in this regulation, for the officers of the general government and state governments are called upon in the same manner: "the senators and representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the united states and of the several states, shall be bound by oath, or affirmation, to support the constitution." these are the words of that instrument. the question, then, is reduced to its expediency, whether it is good policy to exercise the power or not? i am afraid, mr. speaker, if we exercise this power, it may be considered an interference with the state governments. i would rather leave them to their discretion, trusting they would come forward and take the oath; it is unnecessary for us to intermeddle, if they will conform to what is directed by the constitution. it appears to me most prudent, that, till we see a disposition in the state governments to neglect this duty, we do not, by law, oblige them to perform it. i wish the government to go on gradually in administering the constitution, and not give umbrage even to its enemies, by a compulsory act, when there appears no necessity for it. i could not concur in the amendment proposed by the senate, even if i considered it not inconsistent in the house to adopt a measure they had previously rejected, unless some good reasons were offered to show its propriety; not but if i have been mistaken, i am always ready to retract my error, upon better information. mr. sherman was not afraid of being charged with inconsistency. he had voted against a similar clause when the bill was before the house, but he was convinced now of its propriety; he thought it more eligible to have a general provision for taking the oath, than particular ones. it also appeared necessary to point out the oath itself, as well as the time and manner of taking it. no other legislature is competent to all these purposes; but, if they were, there is a propriety in the supreme legislature's doing it. at the same time, if the state legislatures take it up, it cannot operate disagreeably upon them, to find all their neighboring states obliged to join them in supporting a measure they approve. what a state legislature may do, will be good as far as it goes; on the same principle, the constitution will apply to each individual of the state officers--they may go, without the direction of the state legislature, to a justice, and take the oath voluntarily. this, i suppose, would be binding upon them. but this is not satisfactory; the government ought to know that the oath has been properly taken, and this can only be done by a general regulation. if it is in the discretion of the state legislatures to make laws to carry the declaration of the constitution into execution, they have the power of refusing, and may avoid the positive injunctions of the constitution. as our power in this particular extends over the whole union, it is most proper for us to take the subject up, and make the proper provision for carrying it into execution, according to the intention of the constitution. mr. boudinot wished to remove the gentleman's objections arising from inconsistency. the clause that was rejected by the committee of the whole on this bill, contained a penalty for the neglect of taking the oath as prescribed; but the amendment of the senate was not objectionable on that account, because it contained no such provision. as to the policy or expediency of the messure, he entertained not the least doubt respecting it. the constitution said only that the officers of government should be bound by oath, leaving to congress to say what oath. in short it was the duty of the house, as had been well said by the gentleman from new york, (mr. lawrence,) to detail the general principles laid down in the constitution, and reduce them to practice. he would enforce the expediency of the measure with one further remark. several of the state legislatures were sitting at this time, and had expressed a wish or expectation that such a regulation would be made by the general government; if from principles of false policy the measure did not take place, the state legislatures might neglect it also, and it was well known that their officers cannot act without it; hence the legality of their acts may be called in question, and give cause to a great deal of uneasiness and confusion. the question on concurring with the senate in their amendments to the bill was carried, with an amendment, that the members of the state legislatures be directed to take the oath at their next session respectively. the bill was, by order of the house, returned to the senate as amended. thursday, may . mr. smith, of south carolina, from the committee appointed to wait on the president of the united states, to know when it will be convenient for him to receive the address of this house, reported: that the committee had, according to order, waited on the president, and that he signified to them that it would be convenient to him to receive the said address at o'clock on friday, at such place as the house shall be pleased to appoint: whereupon, _resolved_, that as the chamber designed for the president's receiving the respective houses is not yet prepared, this house will wait on the president to present their address, in the room adjacent to the representatives' chamber. _duties on tonnage._ the house resumed the consideration of the report of the committee of the whole on the duty on tonnage. the proposition was to lay a duty of fifty cents per ton, on all vessels belonging wholly or in part to the subjects of all other powers. mr. madison moved to reduce it to forty cents, and at the end of the year , to increase it to seventy-five cents. he was satisfied to go as far as seventy-five, because he expected, under such encouragement, a sufficient number of vessels for the whole commerce of america might be constructed. if he was not too sanguine in this expectation, the measure would be both safe and expedient. mr. smith, (of maryland.)--both in virginia and maryland, british ships pay a higher duty than what is proposed; yet they continue to carry on an extensive trade in those states, which, in my opinion, proves those sums to be too low. american shipping derives considerable advantages from the regulations made in this respect by those two states. if that protection is withdrawn from them by the general government, it will subject our commerce to very great inconveniences and absolute distress. i shall therefore be opposed to the reduction. mr. ames.--the gentlemen from the southward, who suppose their states most likely to be affected by a discrimination in the tonnage duty, have concluded their arguments with a candor, which i conceive does honor to their patriotism. they declare themselves willing to encourage american shipping and commerce, though they do not join with us in the sum we think necessary to be laid on foreign tonnage to accomplish so important an object. if sufficient encouragement is given, and by our regulation american vessels are put on a footing with foreigners, i think we may flatter ourselves with the prospect of seeing our navigation immediately flourish. we have reason to expect a very considerable addition to our shipping in the course of one year. experience has convinced us, that , tons can be built within double that period, by the town of boston alone. the other ports in massachusetts can furnish , tons, new hampshire a considerable quantity, and if the other states furnish their proportion, we shall soon find ourselves independent of european nations for the transportation of our products. if forty cents at present, and the seventy-five cents in expectation, are thought a sufficient encouragement for the purpose, i shall not object to the motion. mr. fitzsimons.--if it is intended to increase the duty at the expiration of two years, it is certainly proper to reduce it in the interim; but i very much question such policy. the business of ship-building, i conceive, stands at this moment in want of the greatest encouragement in our power to give. if sufficient encouragement is given, at this time, to produce a quantity of shipping adequate to the demand, when we once are in possession of them, the business will stand in need of no further encouragement. if the citizens of the united states were now in possession of a sufficient quantity of shipping, and had the ability to employ them, i conceive they would not stand in need of any encouragement whatever. but this is not the case, and therefore an encouragement is requisite. at the conclusion of the last war we were left without shipping, and from our inability to carry on commerce, by reason of the oppression we were subjected to by foreign powers, the building of vessels has made but slow progress in the several states. hence it becomes necessary to give encouragement sufficient to induce merchants to vest a greater proportion of their capital in this way. the proposed encouragement is not very high, and even under it, i should not expect a quantity of shipping would be furnished equal to the demand, in less than four or five years. it would be brought forward by slow and gradual degrees; they will continue, year by year, to increase them, until the number is competent to the demand. the business of ship-building being so relaxed, persons of that occupation have turned to other avocations, and some sensible advantage must appear, to induce them to return to their original profession. a proof of this is evidenced by the situation of philadelphia. before the revolution, , tons of shipping were annually built in that city; last year, the whole tonnage was but , , so much has it declined there. if it revives from its present languishing condition, it must be by great fostering care and protection, and by slow and gradual degrees. it does not appear to me, that fifty cents are more than necessary for its immediate encouragement. gentlemen will be pleased to recollect that it is always in the power of congress to increase it. gentlemen will recollect, on the article of hemp, immediate encouragement was contended for. it was not opposed by the commercial gentlemen in this house. but without encouragement is given to building and fitting out ships, the demand for hemp will be small; for very little advantage will arise from exporting it: the great market must be furnished by ourselves. upon the whole, i conclude against the motion, believing our ship-building to need encouragement more at this time than it will at any subsequent period. mr. jackson.--the gentlemen from massachusetts have, i must own, behaved with liberality. one is willing to reduce the duty to forty cents, another gentleman is more liberal still--he is willing to go lower; but not so the gentlemen from pennsylvania and maryland; they are actuated by other principles. they call to my mind a passage of scripture, where a king, by the advice of inexperienced counsellors, declared to his people, "my father did lade you with a heavy yoke, but i will add to your burthens." a steady pursuit of this counsel brought about the separation of his kingdom. these gentlemen want us even to go further. they bring forward calculations upon the moment, and pass them for information,--the mere calculations of yesterday,--and demonstrate thereby the propriety of their measures. they may consider some states of less importance than others, because they do not contribute the same quantity of revenue; but let them remember, the widow's mite is as good as the rich man's coffers; so the mite of georgia is equal to the revenue of pennsylvania. mr. burke.--it has been observed, in the former part of the debate, that the people of the southern states might buy ships, if they did not build them. there are none owned in carolina: we are destitute both of ships and seamen, and unable to procure them; it would be folly in us, therefore, to burthen them with duties. though it is true, that there are men there who live in affluence, are rich in lands and servants, yet i believe they are universally in debt. this may be fairly inferred from the laws they have made to favor debtors. it would take twelve years to enable people there to pay their state and private debts; they are therefore very unable to sustain any new burthens, especially when their produce is so fallen in price as not to pay the expense of cultivation. i do not say this is to be attributed to the want of vessels to carry it off, though there may probably be a great want in this respect; and if there is, gentlemen tell you they are unable to make up the deficiency. if this be the case, they ought to be contented with a moderate duty for the present; and as my mind is strongly impressed with the importance of encouraging the american navigation, i shall join them in doing something that may be productive of that effect. mr. madison.--as there is a great diversity of sentiment respecting the policy of the duty, i am very happy to find it is not prescribed by the geographical situation of our country. this evinces that it is merely difference of opinion, and not difference of interest. gentlemen of the same state differ as much as gentlemen from the extremes of the continent. as no objection is made to giving some encouragement, we ought to endeavor to harmonize upon the quantum. i doubt very much if any proposition that can now be brought forward will coincide with the sentiments of this body more than the one that is before us. i am not anxious to reduce the encouragement too low, nor to throw to a very distant day the advanced rate intended by my modification of the measure; so gentlemen need not apprehend any evil to arise from its adoption. gentlemen who are opposed to giving sufficient encouragement to ship-building, ought to recollect an argument that was considered of weight in the case of encouraging manufactures. it is certain that manufactures have been reared up by the fostering care of the state legislatures, displayed in the shape of protecting duties; but the people, by the adoption of this constitution, have put it out of their power to continue them. the provision for the support of navigation, made by the several states, ought to induce us to suppose even a higher tonnage duty pleasing to them, at least in those states where a higher tonnage duty has been laid. those states not being able to continue their encouragement, expect that we will attend to their policy, and protect their citizens in the property they were led to acquire under the state regulations. if we disappoint them, they will suffer more than is consistent with good policy. i am not apprehensive that forty cents will be so low as to occasion any discontent. mr. smith, (of south carolina.)--gentlemen have endeavored to persuade us, that a high tonnage duty will be beneficial to the union; but i would as soon be persuaded to throw myself out of a two-story window, as to believe a high tonnage duty was favorable to south carolina. gentlemen tell us we are in great want of shipping and a navy--that sufficient encouragement for ship-building must be given before we can expect it; but i think, let the encouragement be what it may, many years will elapse before we have sufficient for the export of our commodities. i know massachusetts cannot furnish us, because there are adventitious causes to prevent it. the course of the stream in which our navigation has so long flowed, cannot be altered in a day. the debts due from the merchants of that country to the british, will be an insuperable bar. suppose they should send ships to transport our produce to a foreign market, they have no connections abroad to transact their business, no house in a commercial line to employ in the sales. what are they to bring back in return? they must come in ballast: and will the mere transportation of our crop be a sufficient inducement to engage them to come here? if they had more shipping than they wanted, we should still labor under the same difficulty, and employ foreigners; because the business is unchangeably in their hands, and the very moment the tonnage duty is increased, it will be an inducement to them to raise the price of freight. mr. lawrence.--there have been circumstances mentioned in the course of this debate, which i think may be useful in ascertaining whether the proposed duty of fifty cents on tonnage be too high or not. it appears that there is a duty in georgia equal to s. d. sterling; in south carolina, s. d. besides something on goods imported in foreign bottoms; in virginia and maryland it is much greater. how, then, can gentlemen from those states contend that the proposed duty is so much too high as to occasion the fatal consequences they foretell? when we consider the valuable produce of the southern states, we are led to believe that the difference of ten cents per ton can make no material difference in the price. will it materially affect the price of rice or tobacco? neither of these articles would pay more than five cents per cask, if the duty should be reduced. the duty, therefore, cannot be fairly said to be too high for the southern states; it is not contended to be too high for the middle ones; it is not too high for us. if we consider the subject as it relates to revenue, it will form a material object for our attention; if the duty be considered as a bounty to the maritime states, it will be admitted that it is our interest to increase our navigation. the regulation proposed by the gentleman from virginia, to increase the duty to seventy-five cents at the end of two years, may never take effect; before that period arrives, a treaty may be formed with the nation that is our great commercial rival. i am, therefore, in favor of a permanent regulation, rather than one holding out an encouragement that will never take place. mr. jackson.--the gentleman last up thinks the reduction of ten cents will not materially affect the southern states, yet he supposes it will injure ship-building: how it can hurt one interest by being reduced, and not wound the other by its increase, i do not clearly understand; for my part, i do not see the weight of such arguments. mr. lawrence.--i consider the difference of ten cents to be too small for contention; the arguments of the gentlemen in opposition go as much against a duty of forty cents as against fifty. mr. page.--i have heard all the arguments now brought against this measure, urged over and over again, when a tonnage duty was contended against in the same manner in virginia. it was then merely a trial, but now we have the arguments resulting from experience in our favor. we find the british shipping still crowding our ports, although the tonnage duty is twice as great as is now proposed; and although the price of produce has fallen within that time, yet i am persuaded it must be attributed to other causes than this. let the experiment be made with firmness, and i venture to say, it will turn out the same in other states as in ours. i acknowledge the gentlemen's arguments have weight, but they go against any tax whatsoever being laid on tonnage. but experience has demonstrated to us, that such a duty is attended with advantages; it will encourage ship-building, and render us independent for the transportation of our produce. let, therefore, no suggestions of the kind that have been offered deter us from pursuing, with firmness and decision, the plan adopted by the committee. mr. wadsworth.--if the gentleman who has brought forward this proposition had proposed thirty cents instead of forty, i should have agreed to the motion, because it would have destroyed the discrimination between the vessels of nations in treaty, and those not in treaty with us; but in every other point of view, i should be against a reduction. foreign vessels will be better circumstanced under a duty of fifty cents, than american free of duty. the charges on foreign bottoms in our ports are very small; there is not, i believe, a vessel of ours that goes to europe, that does not pay, in light money and other charges, more than fifty cents per ton. mr. madison.--the subject of discrimination is not now within our view; it has been decided by a great majority; i think there were not more than nine members against it. i do not mean, by the arguments that i have urged, to prove that the increase of tonnage has a tendency to raise the price of freight: all my object has been to quiet the apprehensions of gentlemen who hold that opinion. i do not think it will keep away foreign vessels from visiting us, nor increase the burthen on our southern commerce, so much as has been calculated; and even if it did, the extension of our navigation would be an adequate compensation. the price of freight before the late revolution was higher than it is at present; perhaps it may be lower when ships are furnished in larger quantities. mr. tucker.--i fear the gentlemen who look for a sufficient quantity of shipping to answer the demands of our commerce in so short a space as two years, will find themselves deceived. i think, therefore, it would be improper to lay a high tonnage duty, commencing at that period; if it appears expedient, a future legislature may give such encouragement, but they are not bound to perform our engagement. after they have seen the effect of the present regulation, they will be better able to judge of what is right in this particular than we can do. i am doubtful whether the measure would place the united states in a better or worse situation than a duty of fifty cents; a commutation of this kind, in order to save ten cents for two years, and admit an addition of twenty-five cents for ever afterwards, appears a doubtful policy. at any rate, the congress might feel themselves, in some degree, bound to raise the duty to seventy-five cents, when their judgments might tell them it was inexpedient--they will then have cause to complain of our anticipation. i should, i think, rather be in favor of fixing a certain tonnage duty at present, and leave it to the consideration of a future legislature, whether to increase it or not, according to the circumstances of the case. i think thirty cents as much as can be given, with propriety, at this time; considering the interest of the state i have the honor to represent, i believe it will bear harder on some states than on others, acting partially and not generally. when i speak of the state i represent, i would not be thought actuated by improper motives; i think every gentleman is bound to support, in a proper manner, the interest he is well acquainted with, and believes to be conducive to the general welfare. a great deal has been said respecting the duties that have been laid on tonnage in the southern states. i begged the attention of the house, on a former occasion, to a striking difference there is in duties imposed by the state, for its own particular advantage, and what are about to be laid for the benefit of the united states. every duty imposed, i consider as a tax on the inhabitants of south carolina. if that tax is to bear harder on them than on other states, i pronounce it unequal and unjust. i consider the tax on tonnage in this light; but as i am willing to give encouragement to our navigation, so i shall not oppose a moderate duty on foreign vessels; as i also conceive a discrimination proper between those nations in alliance with us and those with whom we have no treaties subsisting, i am disposed to admit a larger sum than thirty cents: i would propose thirty-five, upon the express condition of reducing the duty already agreed to, to twenty or twenty-five, when a bill shall come forward founded upon the principles now agreed to. the question was here put on mr. madison's motion and lost. the house then decided upon the original proposition, which being agreed to, it was _resolved_, that there ought to be levied on all vessels entered or cleared in the united states, the duties following, to wit: on all vessels built within the united states, and belonging wholly to citizens thereof, at the rate of nine cents per ton. on all vessels not built within the united states, but now belonging wholly to citizens thereof, at the rate of six cents per ton. on all vessels belonging wholly to the subjects of powers with whom the united states have formed treaties, or partly to the subjects of such powers, and partly to citizens of the said states, at the rate of thirty cents per ton. on all vessels belonging wholly or in part to subjects of other powers, at the rate of fifty cents per ton. _provided_, that no vessel built within the united states, and belonging to a citizen or citizens thereof, whilst employed in the coasting trade, or in the fisheries, shall pay tonnage more than once in any one year; nor shall any ship or vessel built within the united states pay tonnage on her first voyage. _provided also_, that no vessel be employed in the transportation of the produce or manufactures of the united states or any of them, coastwise, except such vessels shall be built within the united states, and the property of a citizen or citizens thereof. the same was, on a question put thereupon, agreed to by the house. _ordered_, that a bill or bills be brought in pursuant to the said resolution, and that mr. wadsworth, mr. heister, and mr. seney, do prepare and bring in the same.[ ] friday, may . the speaker, attended by the members of the house, withdrew to the room adjoining the representatives' chamber, and there presented to the president of the united states the address agreed to on tuesday last, to which he returned the following answer: gentlemen: your very affectionate address produces emotions which i know not how to express. i feel that my past endeavors in the service of my country are far overpaid by its goodness; and i fear much that my future ones may not fulfil your kind anticipation. all that i can promise is, that they will be invariably directed by an honest and an ardent zeal; of this resource my heart assures me. for all beyond, i rely on the wisdom and patriotism of those with whom i am to co-operate, and a continuance of the blessings of heaven on our beloved country. the speaker and members being returned into the house: mr. gerry, from the committee appointed, presented, according to order, a bill for collecting duties on goods, wares, and merchandises imported into the united states; and the same was received and read the first time. _ordered_, that the clerk of this house do procure one hundred copies of the said bill to be printed for the use of the members of this house. on motion, _ordered_, that the committee appointed on the th ultimo, to report an estimate of the supplies requisite for the present year, and of the net produce of the impost, as agreed to by the house, be authorized and instructed to collect early and authentic statements of the particular articles of foreign produce and manufactures annually imported into, and of all the articles exported from, the several states, and the value of such imports and exports; also, the number of vessels, both foreign and domestic, entered and cleared during that time, specifying their tonnage, and the nations to which they respectively belong; specifying, also, the exact numbers of each particular description of vessels of each nation, and the amount of tonnage of each particular vessel. _duties on imports._ the house, according to the order of the day, resolved itself into a committee of the whole house on the bill for laying a duty on goods, wares, and merchandises imported into the united states. mr. page in the chair. mr. tucker.--as i am desirous of beginning with moderate duties, i deem it proper, at this stage of the business, to offer my reasons in support of this opinion, that if it be the opinion of the committee, we may go uniformly through the list, and make the necessary reduction. i am opposed to high duties, particularly for two reasons: first, because they will tend to introduce and establish a system of smuggling; and, secondly, because they tend to the oppression of certain citizens and states, in order to promote the benefit of other states and other classes of citizens. i cannot say i have a peculiar aversion to a high duty on distilled spirits; i may, therefore, be suspected of inconsistency in moving to reduce it; but i do it on the principle of a general reduction. if i do not succeed on the first article, i shall despair of succeeding on the others. it appears to me that if we lay high duties on the importation of goods, a system of smuggling will be adopted before we can possibly make the necessary provision to prevent it. i take it, sir, that proper regulations respecting the collection is all our security against illicit trade. from a variety of circumstances, it appears to me, we shall not only be a long time in completing such a system, but, for want of experience, many of the regulations will be of a dubious propriety. gentlemen will recollect we have an extensive sea-coast, accessible at a thousand points, and upon all this coast there are but few custom-houses where officers can be stationed to guard the collection of the duties; therefore, we labor under considerably greater disadvantages than a thicker settled country is liable to. i apprehend, if we consider the present state of our population, we shall conclude it impracticable to establish a sufficient number of custom-houses on those parts of the coast most assailable, to render us perfectly secure in the collection of our duties. if it were practicable, the expense would be a formidable objection; it would require more revenue to support such a system than all we shall derive from the impost. but we know in great britain where the duties are high, no expense is spared in the collection, yet smuggling is carried on to a very considerable amount; the risk run by this class of people is very great, the penalties are very severe, and the vigilance of the officers renders detection not very improbable. as this is the case, under the administration of a very powerful government, i apprehend ours, which is only in its infancy, will be unable to prevent it taking place, otherwise than by a system of moderate duties. if we begin with laying them high, there will be an immediate temptation to engage in a system of smuggling, a system of which may soon be formed, so as to render our future efforts ineffectual; it is better to avoid the temptation, than to punish the evil. a man that is disposed to trade fairly, will be brought under the necessity of falling into the same practice, or giving up his business; for the higher the duty, the greater the advantage the smuggler has over the fair trader, being compelled by necessity to engage in a contraband trade, or to forego the means of a livelihood. smuggling will be no longer dishonorable, no longer difficult, and none will be found opposing the practice; repeated efforts to corrupt will be successful among even the officers of your customs; they at first may resist the temptation, but when they find the practice general, their vigilance will wink at a contraband trade, and smuggling will be considered as a matter of course. they will consider the reward given them for being out of the way as a benefit to which they are entitled. for these reasons, i shall be against a system of high duties, and because i fear there is danger of a system of smuggling being introduced before proper arrangements are made to prevent it; or if we had time to make such arrangements, they must inevitably be ineffectual. i would observe further, that a high duty not only tends to the encouragement of smuggling, but it likewise raises, in my mind, a scruple respecting the allowance of a drawback, as i conceive every drawback becomes an additional encouragement to smuggling. in many instances, i fear it may be found, that the drawback will amount to more than all the duties paid in the states which are entitled to it. considering the situation of the states of north carolina and rhode island, which are not in the union, their contiguity to the other states will increase the facility with which smuggling can be carried on; it will be easy to import articles from europe and the west indies into their ports, and send them by land, or even water to the adjacent states. when these are smuggled into the united states, they may be re-exported and entitled to receive a drawback, although the revenue was not collected upon the importation. if we agree to moderate duties it will be much easier to regulate our system on this head; if our revenue is found not to be quite so productive as gentlemen calculate upon a system of higher duties, which, by the by, appears to me to be very unlikely, we shall be better able to judge what we can do after a trial, than we can possibly at present; at any rate, it will be but a small loss; whereas, by a large scale, we may throw the whole union into confusion, and there will be no remedy by which we can recover what we have now in our power; for a reduction of duties, when they are once laid, is productive of the most serious consequences. having, therefore, a strong impression upon my mind, that we hazard a great deal in imposing high duties in the first instance, i should not have been satisfied with having done my duty, if i had not stated my doubts and difficulties to the committee; but having done this, i shall content myself with their decision, be it what it may. on motion, the further reading of the bill was postponed--adjourned. saturday, may . jeremiah van rensselaer, from new york, appeared and took his seat. the following communications were received from the senate by mr. otis, their secretary: mr. speaker: the senate have disagreed to the report of a committee appointed to determine what style or titles it will be proper to annex to the office of president and vice president of the united states, if any other than those given in the constitution; and have appointed a committee to consider and report under what title it will be proper for the president of the united states in future to be addressed, and confer thereon with such committee as this house may appoint for that purpose. the senate have also appointed a committee to view and report how the rooms in the city hall shall be appropriated, and to confer with any committee this house may appoint for that purpose. _duties on imports._ the house, according to the order of the day, resolved itself into a committee of the whole house on the bill for laying a duty on goods, wares, and merchandises imported into the united states. mr. page in the chair. mr. tucker.--the observations i made yesterday were intended to apply generally against a system of high duties. as to the particular article of spirits, i have no objection to a high duty being laid upon it, provided it can be strictly collected; for i do not wish to give encouragement to the consumption of that article, though, i fear, no duty we can lay will tend much to discourage it. i thought that if it was the general opinion of the house to lessen the duties, it would be a saving of time to discuss it on a motion to reduce the first article. i repeat the observation, that high duties are improper, because they are impolitic, and likely to defeat the object of revenue: less will be collected on them than on moderate ones. if it be considered as an encouragement to manufactures to lay heavy duties on enumerated articles, it is a tax on one part for the emolument of another. five per cent. upon all articles imported would raise a considerable revenue, and be a sufficient encouragement to manufactures, especially if we add to this five per cent. the expense of freight and other charges of importation on foreign goods. the five per cent. in the bill is to be collected on the value of the goods at the time and place of importation; the value of goods within the united states is twenty-five per cent. more than they cost in europe; adding this therefore to the other advantages, and it will be a considerable encouragement; but, besides all this, there are many articles made here as cheap, and cheaper than they can be imported. gentlemen, who have given us this information, know the fact to be so in their respective states; in them, therefore, the operation of the measure would be just and politic, but it does not apply with the same force as it respects south carolina and some other states. although in boston and philadelphia they can manufacture certain wares cheaper than they can import them, yet they are not brought at the same price to charleston: hence the operation is unequal and a partial tax upon us. another thing to be considered is, even if these articles could be furnished us at home as cheap as we get them from abroad, whether we should have equal advantages? if a cargo of nails were to be sent to carolina, i would be glad to know how we are to purchase it? would the makers of shoes be content to go there and retail them? if they would, they might be brought there; but i apprehend, if they have not established connections in that country, they could never be disposed of. can they expect the planters to come in a body, and take off their goods upon their arrival? it is not even expected that they could; it must be left to them to judge, whether they do not purchase them in a better way, by taking them upon credit, and paying for them in their crop. gentlemen will not pretend to say that we do not know our own interest, and therefore they will teach us. these reasons will not go down with the people; they will take to themselves the right of judging what is most conducive to their interests. gentlemen cannot argue from the fact, that we do not consume the articles made within their states, as readily and willingly, as those imported from abroad, merely because we do not wish to encourage them. facts prove the direct contrary: we have shown a disposition to encourage articles from their states which can be made in our state in great abundance. i will mention a few of them, although it may appear disgraceful for south carolina to take from any country what she can furnish herself. we have imported to the city of charleston vegetables for table use, which we can raise as well as any part of the world; yet no complaint was made by the agricultural interest of that state, that we imported foreign productions to their prejudice; no duty was imposed to discourage the use of them; all we considered was, whether they came cheaper when brought from abroad than when raised at home, concluding the cheapest to be the best. on the same principles that are now urged, our citizens might have contended that we should impose a duty on all articles which could be produced at home. no imposition on the importation was laid in order to encourage the productions of our country; the same principle ought to have induced us to lay a duty on the importation of flour. we make but little of that; our constituents consume rice in place of it. it might have been said that a heavy duty should have been laid in order to prevent the interference with our staple commodity. the planters should have said, we will compel you to eat rice, and after being some time in the habit you will find you will like it as well as we; indeed, this argument might be extended to a measure calculated to oblige the other states to use rice in their daily food. it might be said, that it was necessary in order to give encouragement to the productions of the southern states, but i believe such arguments would have had no weight if they had been used; yet they are similar to what have been brought forward by gentlemen for the encouragement of domestic manufactures. mr. speaker, if gentlemen are content with moderate duties, we are willing to agree to them and give every reasonable encouragement in our power, but we cannot consent to very great oppression. i once more wish that gentlemen will consider great duties as imposing a heavier burthen upon the southern states, as they import more, the other less; and the sum we pay towards the revenue must be in proportion to our importation. i therefore move, in order to begin with the first article, that distilled spirits be reduced six cents per gallon. mr. jackson seconded this motion, and would assign his reasons for it, but they had been so fully stated by the honorable mover. mr. ames.--i wish the committee may consider, with the attention the subject demands, whether the duties are too high or not? it is hardly possible, i own, to contemplate this subject as a practical question. we shall find it necessary to consider attentively, before we proceed any further, what the objects of our government are; and, having discovered them, we are to consider whether the proposed measure will answer the purposes intended. i believe in every point of view that we can possibly consider it, the subject of revenue will be thought to be one of the primary objects to which the power of government extends. it has long been apprehended, that an ill administration of the new constitution was more to be feared, as inimical to the liberties of the people, than any hostility from the principles of the constitution. of all the operations of government, those which concern taxation are the most delicate as well as the most important. this observation applies to all governments. revenue is the soul of government, and if such a soul had not been breathed into our body politic it would have been a lifeless carcass, fit only to be buried. i would wish this soul might be actuated by rational principles, that, in establishing a revenue system, we might go on a superior principle to that which has heretofore been the governing principle in the united states; that we might consider what was most adequate to the object. the nature of the revenue system in this government is to the last degree important; for want of the soul, the late government was found utterly incapable of invigorating and protecting industry, or securing the union; therefore these seem to be the great objects which we are to accomplish. i consider the present question as a direct application to the principles of the constitution; it will either support or destroy them. if the revenue system should fall with oppressive weight on the people, if it shall injure some in their dearest interests, it will shake the foundation of the government. however the newspapers may stand your friends, and trumpet forth panegyrics on the new constitution, if your administration does not give satisfaction, you will find all ineffectual that they can do, whilst the people are against you. this being admitted, the government will not push their regulations too far; they will consider the weaknesses and prejudices of the individual members of the union. when they lay a tax, they will consider how far it is agreeable to them, and how far the measure is wise in itself. if it is said the article to be taxed is a luxury, and the government is zealous to correct the vice, they will be careful they do not do it in too severe a manner; the principle would be capable of great expansion: all the enjoyments of social life are luxuries, and, as objects of revenue, we ought to set a price on the enjoyment, without suppressing their use altogether. neither ought we to consider what the article in this point of view is able to pay, so much as what we may reasonably expect to collect from it. mr. madison.--the right understanding of this subject is of great importance. the discussion has been drawn out to a very considerable length on former occasions. the chain of ideas on which the subject is suspended, is not very long, nor consists of many links. the present constitution was framed to supply the defects of the one that has preceded it. the great and material defects of it are well known to have arisen from its inability to provide for the demands of justice and security of the union. to supply those defects, we are bound to fulfil the public engagements; expectation is anxiously waiting the result of our deliberations; it cannot be satisfied without a sufficient revenue to accomplish its purposes. we cannot obtain the money any other way but by taxation. among the various objects of this nature, an impost on merchandise imported is preferable to all others, and among the long list of articles included in the bill, there is not one more proper for the purpose than the article under consideration. the public sentiment has strongly pointed it out as an object of revenue. i conceive, therefore, that it will be our duty to draw from this source all the money that it is capable of yielding. i am sure that it will not exceed our wants, nor extend to the injury of our commerce. how far the powers of government are capable of going on this occasion, is matter of opinion; we have had no direct experiment of what can be done under the energy and popularity of the new system; we must recur to other sources for information, and then, unless the circumstances are alike, the comparison may not be true. we have been referred to the experience of other nations; if that is to guide us on this subject, i am sure we shall find precedents for going much farther than is now proposed. if i do not mistake the calculations that i have seen of duties on importation, they amount to more on an average than fifteen per cent.; the duty on ardent spirits in all nations exceeds what is in contemplation to be laid in the united states. i am sensible that the means which are used by those nations to insure the collection, would be odious and improper in this country; but i believe the means which this country is capable of using, without exciting complaint or incurring too much expense, would be as adequate to secure a duty of fifteen per cent. as the powers of any other nation could be to obtain ninety or one hundred per cent. i pay great respect to the opinions of mercantile gentlemen, and am willing to concede much to them, so far as their opinions are regulated by experience; but if i am to be guided by this information, it will not lead me to agree to the reduction of the duties in the manner contended for. it is said, that if we reduce at all, we must go through the whole. now i doubt whether the duty on the article of rum exceeds that proportion which pervades the long list before us. it does not amount to more than thirty per cent., while some other articles stand at forty; some articles again that are not enumerated, but which fall within the general mass at five per cent., are more likely to be introduced clandestinely than this article, if it stood at fifty per cent. i am sure, if we reduce the whole system in the manner now proposed, all the duty we shall be able to collect will be very incompetent to what the public necessities demand. we must turn our eyes, then, to some other source that will fill up the deficiency. there are but two objects to which in this dilemma we can have recourse--direct taxation and excises. direct taxation is not contemplated by any gentleman on this floor, nor are our constituents prepared for such a system of revenue; they expect it will not be applied to, until it is found that sufficient funds cannot be obtained in any other way. excises would give particular disgust in some states, therefore gentlemen will not make up the deficiency from that quarter. i think, upon the whole, it is better to try what will be produced by a plan which is favored by the public sentiment. this will give a support to our laws equal to the greatest energy of a strong execution. the citizens of america know that their individual interest is connected with the public. we shall then have the strong motive of interest acting in favor of the government in a peculiar manner. but i am not inclined to trust too much to this security. i would take in the aid of the best regulations in our power to provide; these acting in concert, would give a moral certainty to the faithful collection of the revenue. but if gentlemen, notwithstanding, will persist in contending against such a system, and cannot offer us a substitute, we must fail of the primary object for which the government was created. if upon experience we find that the duties cannot be safely collected, it may be proper to reduce them; but if we set them too low in the first instance, and they do not yield a sufficiency to answer the just demands of the public creditors and the expenses of government, the public reputation must suffer. mr. bland.--i join with the gentlemen who are disposed to lower the duties. although i feel the necessity we are under of raising revenue as much as any other gentleman possibly can, yet i think we ought to deliberate fully upon the means before we adopt them. it is demonstrable, nay it is self-evident, that laying high duties, in the first instance, will beget smuggling, and i fear our regulations, respecting the collection, will prove the impracticability of defeating the practice. but when we come to consider the subject in another point of view, i trust such a system will be found unnecessary. the enumerated articles in this bill are very numerous; they are taxed from fifty per cent. downwards; the general mass pays five per cent. the calculations made by the late congress, who no doubt maturely considered the subject, found a list of eight articles only, and those at one-fourth or one-fifth of the rate now proposed, would produce a revenue of nine hundred and fifteen thousand six hundred and fifty-six dollars annually. when we add to this calculation a circumstance of notoriety, the increase of our importation, we shall find that we levy, or mean to levy, greater sums than the public necessities require. there will not be found specie enough within the united states to pay the duties: four times the rate of what the former congress recommended, will produce three millions six hundred thousand dollars. the enumeration is four times as great also; hence we may infer, that the amount will reach thirteen or fourteen millions. at least we shall be convinced that we are upon too high a scale. but where is the necessity of raising the impost to this degree? there are other means of revenue, and such as will not give disgust. we have already proposed a duty on tonnage; there is the post-office, and some other things which the ingenuity of government can devise and is entitled to, for the purpose of revenue; if it is therefore unnecessary to levy such oppressive taxes, what other pretext can be set up for adopting the system? independent of every other consideration, this ought to induce us to lower them. but there are other and weighty considerations; but as they have been well urged by the gentleman from massachusetts, (mr. ames,) i shall not touch upon them. it is said, that it is merely matter of opinion whether they are too high or not; if so, let us be careful not to venture too far on such ground. it will be much better to reduce it in the manner proposed by the gentleman from south carolina, and increase it hereafter, than strain the measure too high at present. mr. sherman.--after this subject had been debated in a committee of the whole, and then in the house upon the report, and every argument that could be thought of had been urged, both on the general and particular amount of the duties proposed, and the probable effects of a deduction, i did not expect to have heard the same debate take place again. gentlemen have a large field to display their abilities in, but i do not think it contains any new matter that will induce a single gentleman to alter his opinion on the subject. the great object is to raise a sum of money adequate to supply our wants; and let us dispute as we will about the mode, the fact is it must be raised. the people have sent their representatives here for this purpose; it is for their benefit that we raise the money, and not for any peculiar advantage to ourselves; the objects are to pay the debts, and to provide for the general welfare of the community. the first of these objects i take to be, that we pay our debts. there are very many meritorious characters who furnished us with essentials in the hour of imminent danger, who, from the imbecility of our former government, have not been able to get even the interest of what they loaned us. i believe it is the first wish of the people throughout the united states to do justice to the public creditors, and to do it in such a manner, that each may contribute an equal part according to his abilities. we have very considerable arrearages due on this account, upon not only the domestic but foreign debt; there are several instalments not yet discharged, and considerable of the interest not yet paid. no statement can be made of the expenses of government, so as to ascertain what quantity of revenue will be demanded on that head, but saying that they will be much the same under this government as the former, and we shall have occasion for a very considerable sum to defray the expenses. i believe we are not able to make a very accurate calculation of what the system, proposed in the bill, will yield. the late congress contemplated a million of dollars from this source, which, in aid of the requisition, they supposed sufficient for the purpose of paying the instalments of the national debt and interest; but that sum alone will now be found very short of what is wanted without the aid of direct taxes. it is very material that we lay the burthen as equal as possible, in whatever mode we pursue to obtain revenue: a great deal of care has been taken in distributing the proportion with equity; i apprehend, therefore, that we shall not be able to make it much more equitable by any alteration than it is at present. i think, also, that the people will pay more freely a duty of this nature than they will in direct taxes. if gentlemen prevail in getting the duties lowered to what the late congress proposed, they will find themselves obliged to have recourse to direct taxation for a million and a half, or two millions of dollars. it then only remains for us to consider, whether it will be more agreeable to the people to reduce the impost in this manner, and raise the deficiency by direct taxes. if these duties are to be considered as a tax on the trading part of the community alone, they are improper; but this i believe is not the case; the consumer pays them eventually, and they pay no more than they choose, because they have it in their power to determine the quantity of taxable articles they will use. a tax left to be paid at discretion must be more agreeable than any other. the merchant considers that part of his capital applied to the payment of the duties the same as if employed in trade, and gets the same profit upon it as on the original cost of the commodity. mr. white.--when this system first came before the committee, i was opposed to enter into an enumeration, because i supposed much time would be taken up in the discussion, which would be an absolute loss of revenue, perhaps to a greater amount than the difference between the duties of such a system and the one proposed by the late congress; but as it was thought proper by the committee to proceed in the way that we have done, it would be presumption in me to say, that the duty on every article has been perfectly digested and properly laid, but i believe every article stands as well as can be upon the information we are in possession of. i believe very few, if any, of the articles can be disapproved of. mr. ames.--the gentleman from pennsylvania set out with informing us that nothing new had or could be offered on the subject, yet you found, mr. chairman, the gentleman had a good deal to say, which i thought new and much to the purpose. as to applying the observation to myself, in common with the advocates for low duties, i shall decline it, only noting that the long discussion which the subject has had, would restrain me from rising on this occasion, more than any remarks of the nature made by the gentlemen from pennsylvania and connecticut; but i am actuated by higher motives than a regard to my own feelings, otherwise i should come reluctantly forward to press arguments which the committee may be fatigued with listening to. but i feel such strong impressions on my mind, with regard to the effects our impost law is likely to produce, that i cannot pass it over with a silent vote. i must admonish gentlemen, that the events which may result from our present measures are of the most alarming nature. when i was up before, i endeavored to show the degree of power the government could exercise without being charged with an ill administration. i shall now proceed briefly to consider the arguments used in reply to what has been advanced by the advocates for moderate duties. i believe it is a good rule to judge of the strength of a cause by the arguments used to defend it; and here i must take the liberty of saying, that the gentlemen on the other side of the question have adduced not one to support their opinion that has carried conviction to my mind. i consider that, by a decision of this question, the good which the new government is expected to produce may be rendered problematical. though i am fully impressed with the necessity there is for revenue to supply the public expenses, yet i cannot believe we are likely to obtain more by heavy duties than by temperate ones, and it is to this point that my arguments tend. i do not believe that in either case we shall procure fully sufficient to supply the public demands. if we have to procure , , dollars, i venture to say, not near the half could be raised by an impost system; but admitting that it could by a high scale of duties for the first year, it could not be done in the subsequent ones. now i regard this as a permanent system of revenue, rather than a productive one; if it is laid high, you will find your collection annually diminish. now, will any government take such measures in gathering in its harvest, as to ruin the soil? will they rack-rent their tenants in such a manner as to deprive them of the means of improving the estate? such can never be the policy of this enlightened country. we know, from the fundamental principles of republics, that public opinion gives the tone to every action of the government--the laws ought to correspond with the habits and manners, nay, i may almost add, wishes of the people. well, mr. chairman, we are told a tax upon rum is popular; i will agree with the gentlemen; but still a high duty will induce people to run it, and though the consumer may pay the tax without complaining, yet it will go into the pockets of individuals who defraud your revenue. gentlemen have complained that we do not offer a substitute for what we find fault with. i will endeavor to explain a system i would place in the room of this. i would reduce the duties generally so low as to hold out no encouragement to smuggling; in this case, it is more than probable, the amount of the impost, at the end of one year, would exceed the collection under the present rate. by giving this proof of moderation and wisdom, we should obtain the public favor and confidence; the government would be acquiring strength, its movements would be more certain, and we could in every subsequent year extend the system, and make the whole productive; then it would be in the power of government, by aids, to improve our agriculture, manufactures, and commerce. our imports are now very great; by the increase of our commerce, we shall probably find our revenue produce twice as much seven years hence as it can be expected to do at present. mr. madison.--let us compare the probable amount of the revenue proposed to be raised by this system, with what is raised in great britain, and we shall be apt to infer that they are not so oppressive as gentlemen seem to insinuate. taking the highest estimate that i have heard mentioned, and it will not produce three millions of dollars. the population of the united states exceeds three millions of souls, hence the tax does not amount to one dollar per head. great britain, on the highest estimation, does not contain eight millions of inhabitants, and has an annual revenue to provide of thirteen millions sterling. it is true, she has recourse to other means besides an impost for the purpose of obtaining such a revenue; but those other means are certainly more objectionable in that country, and would be much more so here. each individual of that kingdom pays eight times as much as is required by the united states; now, where is the propriety of making a comparison between them? mr. baldwin asked if the government of the united states of america was four or five times worse to be administered than the governments in europe? whether the public opinion was four or five times more unfavorable to such an administration? if these questions are answered in the affirmative, then the inferences which gentlemen have drawn, of the impracticability of collecting the duties laid in the bill, are just. but this is not allowing the general government the common chance of executing its laws. if it were the worst government on earth, it might be allowed a chance of doing one quarter of what others perform. if we find by experience, that we are too weak to execute a system which is so much easier than other nations have adopted, it may be proper to alter it. we shall be better able to judge how far we are likely to succeed, when the bill for the collection of the revenue is brought forward. such a bill is now in the hands of a committee, and it is to be hoped, when they report it, it will be found sufficient to insure the collection; till then, it will be best to continue the rate as it stands. mr. boudinot.--when we consider the arguments of gentlemen on both sides of this question, we shall find they do not differ so much as, on a superficial view, gentlemen may be led to imagine. it is agreed, that a revenue must be obtained adequate to our wants; but some gentlemen think we shall not receive a greater sum, because we lay a high duty; in this opinion i am with them. i think the present is a favorable time to lay an impost duty, and expect very considerable aid from the public spirit; but i am in favor of a low duty, because i would do nothing to check that spirit. if we lay high duties, and a man finds smuggling the most profitable business he can follow, we shall have to contend with private interest. if we lay a light duty of thirty or forty per cent., the temptation will be too strong for resistance, and the sum collected may not amount to ten per cent. on the whole importation; whereas, if we lay twenty or fifteen per cent. the whole may probably be collected, and the treasury be better filled, because it does not hold out so strong an inducement to evade the payment of the duties. another objection has been stated, which is of great weight: a system of high duties will necessarily engage us in a system of drawbacks. if we are forced into this measure, it will be a great injury to the revenue. we ought also to consider the inconvenience to which high duties will subject our merchants. it is a common case in america, that our mercantile capitals are limited. gentlemen engaged in commerce can ill spare so large a proportion in the payment of duties. it has been mentioned by gentlemen, that great britain collects four shillings sterling per gallon on rum; yet she is exposed to great difficulties in obtaining it. but i ask gentlemen, whether great britain ever laid such a high duty in the first instance, as we are about to impose? i believe they did not: they began, i apprehend, with moderate duties, and increased them as circumstances authorized, when the people became habituated to the imposition. this is the very principle i wish to adopt, and show the world that our conduct is founded in wisdom, propriety, and experience. if we shall discover our mistake in laying high duties, and are driven by necessity to reduce them, such measures will operate to the injury of the fair trader; whereas, if we increase them by degrees, it will be rather favorable to their interest than otherwise; at all events, it will injure none. if a sense of the committee could be obtained on a general reduction of ten or fifteen per cent. on the rate the articles now stand at, i should be glad to vote in favor of such a motion; but i could not approve of reducing the article of rum alone, because i do not think it charged out of proportion with the others. mr. jackson differed from his colleague, (mr. baldwin.) he thought, although the british laid four shillings on rum, they did not collect it; and that their custom-house establishments were so expensive, as to leave a mere trifle for the net produce of the impost duty. if america employed such a host of revenue officers as to secure the payment of high duties, there would be very little left, after compensating their services, to supply the federal treasury. mr. wadsworth desired gentlemen to consider, that the citizens of the united states owned vessels as well calculated for smuggling, as any that were employed between the netherlands and england; therefore, they had little more security against smuggling than great britain. mr. jackson.--it was well observed by the honorable gentleman from connecticut, (mr. wadsworth,) that america has vessels well adapted for smuggling: i can declare it, from my own knowledge, to be the fact. it is not, mr. chairman, the large vessels coming off long voyages that we are to apprehend danger from; it is our coasters, small vessels constantly coming in and going out; these can run goods from foreign ports adjacent to the united states; they are best acquainted with the unfrequented parts, where they can deposit their cargoes with safety, and will make use of these advantages to defraud your revenue. with regard to the equity of the impost system, i conceive direct taxation will be more equitable. we, in the southern states, shall then pay in proportion to our numbers; but under this law we shall contribute much more. gentlemen talk of improving the morals of the people by taxation. for my part, i conceive revenue has nothing to do with the morals of the people; therefore, such considerations have no weight on my mind. all that i contemplate is, drawing as much money as we can with equity; and here i believe more can be obtained by a less impost than by a greater; therefore, i am in favor of reducing the duties. it will likewise be more honorable to the government to begin gradually and win the affections of the people, rather than disgust them by oppressive measures; for if we lose their confidence, we lose our power and authority. mr. gerry.--it appears to me, that gentlemen place their arguments on the name of high duties, rather than on principle; for if they were certain that the energy of government would effect all they aspire at, then it would follow, that we have nothing more to do than to name the sum we want. but if these ideas are not well supported, the superstructure they have raised upon them must fall to the ground. the energy of your government depends upon the approbation of the people. no doubt the citizens of the united states will support the government they have adopted, so long as they approve the measures it pursues, but no longer. gentlemen trust much, on this occasion, to the co-operation which they expect from their constituents; but i would wish them to examine this argument. these duties are to be collected from the several states into which certain goods are imported. if the people of massachusetts shall conceive any particular duty peculiarly oppressive on them, they will seek to evade it. this opens a door for smuggling all the other articles. i conceive gentlemen to be mistaken with respect to the effects which high duties will produce on the mercantile interest. i think there cannot be a doubt but they will be obliged to smuggle; if they mean to continue their business, their capital will be insufficient for the purposes of commerce and the payment of high duties. gentlemen will not draw knowledge from the experience of great britain; therefore, it is unnecessary to adduce her example. but let us see what we are taught by the practice of our own states. massachusetts drew a very considerable revenue from an impost; she lately tried to increase it by doubling the duties; but, instead of doing so, they found the revenue lessened, and they were obliged to alter what they had so injudiciously attempted. i am willing to suppose with gentlemen, that the government is invested by the constitution with sufficient energy to carry any regulation of this kind into effect; but is this the time to try the energy of your government, when your commerce is struggling with every kind of difficulty and embarrassment? formerly our merchants were able to extend their operations by the means of an established credit in britain; but unfortunately this is no longer the case. how, then, is it possible they can continue their trade, when you lop off another part of their capital? besides, as was said by the worthy gentleman from virginia (mr. bland), there is not money enough in the united states to pay the duties. i believe it is well known, that our commerce is greatly distressed by the universal want of specie; there has not been less in circulation for many years than there is at this time. gentlemen who have property cannot convert it into money; then how will the merchant be able to raise cash for the payment of duties equal to thirty or forty per cent. on his capital? these are serious and alarming circumstances, and such as prove to my mind that the commerce was never less able to bear a high impost than at present, nor ever stood in greater need of the fostering hand of government for its support. if gentlemen are convinced of the truth of these observations, and they are so notorious that they cannot have escaped the knowledge of any one, they will see the necessity of turning their attention to the encouragement of navigation and trade, rather than think of drawing an oppressive revenue from them. mr. madison submitted, whether the burthen would not operate more on the southern states than the northern. the duties could be collected in the middle states--this was proved by the experience of some years; for they had collected in those states, in many instances, duties nearly equal to what were proposed. in the eastern states, it was the interest of the manufacturers to see the duties were well collected; they had been imposed to favor their interests. the distillers would exert themselves in aiding the government to collect the duty on foreign rum, because it particularly interfered with country rum; from hence he concluded that the impost could be collected with tolerable certainty even in that country most convenient for carrying on a clandestine trade. mr. ames contended that it would be the particular interest of one set of men to evade the payment of the duties. as mankind was governed by interest, it required all the attention of the government to prevent a breach of the law; because, when the banks and bulwarks of defence were once broken down, the full tide of clandestine commerce would overflow the country. gentlemen recollected the circumstances which attended the depreciation of the late continental money. some persons, from motives of interest or necessity, first made a distinction between it and specie, and although every exertion was made by the patriotic among our citizens to prevent the alarming evil, yet every thing was insufficient; they were at length obliged to acquiesce in measures they could not prevent. this was the case on that occasion, and will be the case whenever our laws or regulations run counter to private interest. mr. sherman.--the gentleman from massachusetts (mr. ames) has said, that because we cannot raise the whole sum necessary to supply our wants, we should be content to stop half way. i know we shall not be able to obtain money enough by the impost to pay off our whole debt, but then i wish to raise as much as possible in this way. i believe the people are able to pay as much as the necessities of the government require; if they are not, we shall never restore the public credit, which is one of the chief ends of our appointment. i believe they are not only able but willing to contribute sufficient for this purpose. the resources of this country are very great, if they are properly called into action; and although they may not be so great as those of britain, yet it should be remembered, that nation has occasion for twelve times as much revenue as the united states. gentlemen have had recourse to popular opinion in support of their arguments. popular opinion is founded in justice, and the only way to know if the popular opinion is in favor of a measure, is to examine whether the measure is just and right in itself. i think whatever is proper and right, the people will judge of and comply with. the people wish that the government may derive respect from the justice of its measures; they have given it their support on this account. i believe the popular opinion is in favor of raising a revenue to pay our debts, and if we do right, they will not neglect their duty; therefore, the arguments that are urged in favor of a low duty will prove that the people are contented with what the bill proposes. the people at this time pay a higher duty on imported rum than what is proposed in this system, even in massachusetts; it is true, it is partly laid by way of excise, but i can see no reason against doing it in this way as well as the other. mr. lawrence.--it has been intimated by gentlemen in favor of high duties, that it will limit the consumption of foreign articles; if this be the case, the quantity imported will be lessened; if it is our object to raise revenue, it is certainly unwise to destroy the object from which the revenue is to be collected. it is supposed the amount of the duties will be insufficient to answer the public wants; and yet the public creditors have great expectations from this resource. let us therefore be careful how we destroy it; if revenue is our primary object, and the other considerations but secondary, we should do nothing to operate against that principle. mr. madison.--it does not follow, because it will in some degree limit the consumption, that we ought not to lay a high duty on rum; if it has that effect, it will be an ample compensation for the loss of revenue; but probably, as we extinguish our debt, we shall have the less occasion for the revenue itself. mr. goodhue.--the object of the committee is to raise revenue, i take it. this would, perhaps, be best done by reducing the duty, but i am not inclined to reduce it so low as some gentlemen seem to desire; it may be reduced a few cents, and therefore i move to insert ten instead of twelve. the question was taken for striking out the twelve cents, as it stood in the bill, on all spirits of jamaica proof, imported from the dominions of nations in alliance with the united states, in order to leave it blank, to be filled up hereafter. the house divided on the question; in favor of the motion, and against it. so it passed in the negative. adjourned. monday, may . _on titles._ the house took into consideration the message from the senate, communicated on saturday last, respecting the disagreement of the senate to the report of a joint committee, on the subject of annexing titles to the offices of president and vice president. mr. parker moved a resolution to the following effect: _resolved_, that this house having, on tuesday last, adopted the report of their committee appointed to confer with a committee of the senate, stating, "that it is not proper to annex any style or title to the respective styles or titles of office expressed in the constitution;" and having, in their address to the president of the united states on friday last, proceeded to act pursuant thereto, deem it improper to accede to the proposition made by the senate, as communicated by their order of the th instant, for appointing a committee to confer with a committee of this house, in considering and reporting under what title it will be proper for the president of the united states in future to be addressed. mr. page seconded the motion, observing, that in his opinion, the house had no right to interfere in the business: the constitution expressly prescribed the power of congress as to bestowing titles. he did not conceive the real honor or dignity of either of those situations to consist in high sounding titles. the house had, on a former occasion, expressed their disapprobation of any title being annexed to their own members, and very justly too. after having so fully and explicitly declared their sentiments against such measures, he thought it behooved them to be explicit with the senate. indeed, he felt himself a good deal hurt, that gentlemen on this floor, after having refused their permission to the clerk to enter any more than their plain names on the journal, should be standing up and addressing one another by the title of "the honorable gentlemen." he wished the practice could be got over, because it added neither to the honor nor dignity of the house. mr. lee approved of the appointment of a committee to confer with a committee of the senate, as to the mode due to the occasion; but he was against adding any title. mr. tucker.--when this business was first brought before the house, i objected to the appointment of a committee to confer with a committee of the senate, because i thought it a subject which this house had no right to take into consideration. i then stood single and unsupported in my opinion, but have had the pleasure to find since, that some gentlemen on this floor agree that i was right. if i was then right, i shall, from stronger reasoning, be right now in opposing the appointment of another committee on the same subject. the joint committee reported that no titles ought to be given; we agreed to the report, and i was in hopes we should have heard no more of the matter. the senate rejected the report, and have now sent us a resolution, expressive of a determination to give a title, to which they desire our concurrence. i am still of the opinion that we were wrong in appointing the first committee, and think that we shall be guilty of greater impropriety if we now appoint another. what, sir, is the intention of this business? will it not alarm our fellow-citizens? will it not give them just cause of alarm? will they not say, that they have been deceived by the convention that framed the constitution? that it has been contrived with a view to lead them on by degrees to that kind of government which they have thrown off with abhorrence? shall we not justify the fears of those who were opposed to the constitution, because they considered it as insidious and hostile to the liberties of the people? one of its warmest advocates, one of the framers of it, (mr. wilson, of pennsylvania,) has recommended it by calling it a pure democracy. does this look like a democracy, when one of the first acts of the two branches of the legislature is to confer titles? surely not. to give dignity to our government, we must give a lofty title to our chief magistrate. does the dignity of a nation consist in the distance between the first magistrate and his citizens? does it consist in the exaltation of one man, and the humiliation of the rest? if so, the most despotic government is the most dignified; and to make our dignity complete, we must give a high title, an embroidered robe, a princely equipage, and, finally, a crown and hereditary succession. let us, sir, establish tranquillity and good order at home, and wealth, strength, and national dignity will be the infallible result. the aggregate of dignity will be the same whether it be divided among all, or centred in one. and whom, sir, do we mean to gratify? is it our present president? certainly, if we expect to please him, we shall be greatly disappointed. he has a real dignity of character, and is above such little vanities. we shall give him infinite pain; we shall do him an essential injury. we shall place him in a most delicate and disagreeable situation; we shall reduce him to the necessity of evincing to the world his disapprobation of our measures, or of risking some diminution of that high reputation for disinterested patriotism which he has so justly acquired. it is not for his gratification; for whose, then, are we to do this? where is the man among us who has the presumption and vanity to expect it? who is it that shall say--for my aggrandizement three millions of people have entered into a calamitous war; they have persevered in it for eight long years; they have sacrificed their property, they have spilt their blood, they have rendered thousands of families wretched by the loss of their only protectors and means of support? this spirit of imitation, sir, this spirit of mimicry and apery will be the ruin of our country. instead of giving us dignity in the eye of foreigners, it will expose us to be laughed at as apes. they gave us credit for our exertions in effecting the revolution, but they will say that we want independence of spirit to render it a blessing to us. mr. trumbull moved for the appointment of a committee of conference, to consider on the difference which appeared in the votes of the two houses upon the report of the joint committee. mr. burke hoped the house would express their decided disapprobation of bestowing titles in any shape whatever; it would be an indignity in the house to countenance any measures of this nature. perhaps some gentlemen might think the subject was a matter of indifference; but it did not appear to him in that light. the introduction of two words which he could mention into the titles of these officers, would alter the constitution itself; but he would forbear to say any thing further, as he had a well-grounded expectation that the house would take no further notice of the business. mr. goodhue thought the conference unnecessary, because the house had not only adopted the report of their committee, but proceeded to act in pursuance thereof. mr. seney joined the last gentleman in sentiment, and thought it an unnecessary waste of time to give the subject any longer discussion. mr. madison.--i may be well disposed to concur in opinion with gentlemen that we ought not to recede from our former vote on this subject, yet at the same time i may wish to proceed with due respect to the senate, and give dignity and weight to our own opinion, so far as it contradicts theirs, by the deliberate and decent manner in which we decide. for my part, mr. speaker, i do not conceive titles to be so pregnant with danger as some gentlemen apprehend. i believe a president of the united states, clothed with all the powers given in the constitution, would not be a dangerous person to the liberties of america, if you were to load him with all the titles of europe or asia. we have seen superb and august titles given, without conferring power and influence, or without even obtaining respect. one of the most impotent sovereigns in europe has assumed a title as high as human invention can devise; for example, what words can imply a greater magnitude of power and strength than that of high mightiness? this title seems to border almost upon impiety; it is assuming the pre-eminence and omnipotence of the deity; yet this title, and many others cast in the same mould, have obtained a long time in europe, but have they conferred power? does experience sanction such an opinion? look at the republic i have alluded to, and say if their present state warrants the idea. i am not afraid of titles, because i fear the danger of any power they could confer, but i am against them because they are not very reconcilable with the nature of our government or the genius of the people. even if they were proper in themselves, they are not so at this juncture of time. but my strongest objection is founded in principle; instead of increasing, they diminish the true dignity and importance of a republic, and would in particular, on this occasion, diminish the true dignity of the first magistrate himself. if we give titles, we must either borrow or invent them. if we have recourse to the fertile fields of luxuriant fancy, and deck out an airy being of our own creation, it is a great chance but its fantastic properties would render the empty phantom ridiculous and absurd. if we borrow, the servile imitation will be odious, not to say ridiculous also; we must copy from the pompous sovereigns of the east, or follow the inferior potentates of europe; in either case, the splendid tinsel or gorgeous robe would disgrace the manly shoulders of our chief. the more truly honorable shall we be, by showing a total neglect and disregard to things of this nature; the more simple, the more republican we are in our manners, the more rational dignity we shall acquire; therefore, i am better pleased with the report adopted by the house, than i should have been with any other whatsoever. the senate, no doubt, entertain different sentiments on this subject. i would wish, therefore, to treat their opinion with respect and attention. i would desire to justify the reasonable and republican decision of this house to the other branch of congress in order to prevent a misunderstanding. but that the motion of my worthy colleague (mr. parker) has possession of the house, i would move a more temperate proposition, and i think it deserves some pains to bring about that good will and urbanity, which for the despatch of public business ought to be kept up between the two houses. i do not think it would be a sacrifice of dignity to appoint a committee of conference, but imagine it would tend to cement that harmony which has hitherto been preserved between the senate and this house; therefore, while i concur with the gentlemen who express, in such decided terms, their disapprobation of bestowing titles, i concur also with those who are for the appointment of a committee of conference, not apprehending they will depart from the principles adopted and acted upon by the house. mr. white did not approve of a committee of conference, because the house had already determined the question by unanimously adopting the report of the joint committee. he did not think that it was worth while having the subject longer contested; he was satisfied both the spirit of the constitution and the spirit of the people disapproved of titles. mr. bland would be careful of giving umbrage to the senate, because he wished that the unanimity and moderation which subsisted between the two houses might continue. he considered the present as a very proper opportunity for the appointment of a committee of conference. the two houses had disagreed on the report of their committees; it was proper, therefore, that they should mutually assign their reasons, in order to bring about an agreement to the same resolution. he hoped, therefore, that such a committee would be appointed, though he had no expectation that the house would give up an opinion they so justly and decidedly entertained respecting titles. mr. parker wanted to know what was the object of gentlemen in the appointment of a committee of conference? the committee could only say that the house had refused their consent to annexing any titles whatever to the president and vice president; for certainly the committee would not descend into the merits of a question already established by the house. for his part, he could not see what purpose was to be answered by the appointment of such a committee. he wished to have done with the subject, because while it remained a question in the house, the people's minds would be much agitated; it was impossible that a true republican spirit could remain unconcerned when a principle was under consideration, so repugnant to the principles of equal liberty. mr. sherman thought it was pretty plain that the house could not comply with the proposition of the senate. the appointment of a committee, on the part of the house, to consider and determine what style or title will be proper to annex to the president and vice president, would imply that the house meant that some style or title should be given. now this they never could intend, because they have decided that no style or title ought to be given; it will be sufficient to adduce this reason for not complying with the request of the senate. mr. jackson wondered what title the senate had in contemplation to add dignity or lustre to the person that filled the presidential chair. for his part, he could conceive none. would it add to his fame to be called after the petty and insignificant princes of europe? would styling him his serene highness, his grace, or mightiness, add one tittle to the solid properties he possessed? he thought it would not; and therefore conceived the proposition to be trifling with the dignity of the government. as a difference had taken place between the two houses, he had no objection to a conference taking place. he hoped it might be productive of good consequences, and that the senate might be induced to follow the laudable example of the house. mr. madison was of opinion, that the house might appoint a committee of conference without being supposed to countenance the measure. the standing rule of the house declared, that, in case of disagreeing votes, a committee of conference should be appointed. now, as the case provided for in the rule had actually happened, he inferred that it was proper to proceed in the manner directed by the rules of the house. the subject was still open to discussion, but there was little probability that the house would rescind their adoption of the report. i presume gentlemen do not intend to compel the senate into their measures; they should recollect that the senate stand upon independent ground, and will do nothing but what they are convinced of the propriety of; it would be better, therefore, to treat them with delicacy, and offer some reasons to induce them to come into our measure. he expected this would be the result of a conference, and therefore was in favor of such a motion. mr. seney intended nothing disrespectful to the senate, but he conceived, after having adopted the report of the committee, it would derogate from their own dignity to rescind a unanimous resolution; and for what other purpose could a conference be appointed by the house? they must certainly suppose that there might be ground for changing their opinion. nothing of this kind appeared to him, and therefore he was of opinion, it would be a useless consumption to waste any more time about it. mr. clymer thought that there was little occasion to add any title to either the president or vice president. he was very well convinced, by experience, that titles did not confer power; on the contrary, they frequently made their possessors ridiculous. the most impotent potentates, the most insignificant powers, generally assumed the highest and most lofty titles. that they do not indicate power and prerogative, is very observable in the english history; for when the chief magistrate of that nation bore the simple style of his grace or highness, his prerogatives were much more extensive than since he has become his most sacred majesty. titular distinctions are said to be unpopular in the united states; yet a person would be led to think otherwise, from the vast number of honorable gentlemen we have in america. as soon as a man is selected for the public service, his fellow-citizens, with liberal hand, shower down titles on him--either excellency or honorable. he would venture to affirm, there were more honorable esquires in the united states than in all the world besides. he wished to check a propensity so notoriously evidenced in favor of distinctions, and hoped the example of the house might prevail to extinguish that predilection which appeared in favor of titles. mr. page.--if i thought the motion made by my colleague in the least degree disrespectful, i should not have seconded it. i would be the last man on this floor to treat that worthy body with disrespect; but i believe it cannot be construed to have such a meaning. if we were to let the resolution lie on the table, it would not be disrespectful. but what is the object of the motion? simply to inform the senate that we cannot rescind a resolution adopted in consequence of the report of a joint committee. if the conduct of either house is in the least degree disrespectful, (though i do not conceive it is,) the body who declined adopting the report, after knowing the sense of the other to be in its favor, is the most so. but on what are a committee to confer? not upon what title shall be bestowed, because we have no right to enter on the subject; and here i must tell gentlemen i differ from them, when they think titles can do no harm. titles, sir, i say, may do harm, and have done harm. if we contend now for a right to confer titles, i apprehend the time will come when we shall form a reservoir for honor, and make our president the fountain of it. in such case, may not titles do an injury to the union? they have been the occasion of an eternal faction in the kingdom we were formerly connected with, and may beget like inquietude in america; for i contend, if you give the title, you must follow it with the robe and the diadem, and then the principles of your government are subverted. mr. lee moved the previous question, as the best mode of getting rid of the motion before the house: he was supported by a sufficient number. and on the question, shall the main question be now put? it passed in the negative; and so the motion was lost. on motion, it was _resolved_, that a committee be appointed, to join with such committee as the senate may appoint, to confer on the disagreeing votes of the two houses, upon the report of their joint committee, appointed to consider what titles shall be given to the president and vice president of the united states, if any other than those given in the constitution. messrs. madison, page, benson, trumbull, and sherman were the committee elected. _impost bill._ the house then went into a committee of the whole on the bill for laying a duty on goods, wares, and merchandises imported into the united states. mr. page in the chair. the question on laying a duty on molasses being under consideration: mr. tucker.--notwithstanding i am anxious for a reduction of the duties on all the articles in the bill, yet my vote on molasses will be regulated by what the committee shall determine in other cases, as i do not conceive it to be out of proportion. if a general reduction takes place on the other articles, i shall be disposed to make a reduction on this article; but as mine is but a single vote, gentlemen may not be inclined to favor my proposition for a general reduction in order to gain my assent to a reduction on this particular article. mr. goodhue was of opinion that the duties were too high for collection; but he did not agree with the gentleman from south carolina (mr. tucker) that the duty on molasses was rated in proportion to the other articles, and therefore the question, whether molasses shall be reduced or not, did not depend on a general reduction, but on its own bottom; if it was rated too high for collection and proportion, the committee would agree to reduce it. mr. fitzsimons expected the gentleman from south carolina would vote in the manner he had pledged himself; he had promised to vote for reducing the duty on molasses if the committee reduced the duty on other articles; now, as they had decided against a reduction, he hoped the gentleman would be in favor of the duty on molasses, as it stood in the bill, and not vote in the manner he had promised. mr. tucker.--the gentleman last up has certainly misunderstood me. i made no promise. i said my vote would depend upon the reduction of the other articles, but i was indifferent as to rum; i did not consider the state i represented as being either particularly benefited or injured by a duty on rum; and therefore did not urge any arguments in favor of reducing that article, more than i thought it might be proper to preserve the ratio, as fixed by the house, between the several articles. if gentlemen think rum can bear a high duty, and be safely collected, i have no objection to letting it remain. but there are some articles that bear heavily and unequally upon south carolina; now, i think it my duty to vote in such a manner as to prevent her from bearing an undue proportion of the tax to be collected; i am, consequently, obliged to vote for a high tax on articles used in other states, (if my state is highly taxed,) however unequally it may fall. i shall therefore vote so as to endeavor to oblige other states to bear their true proportion of the aggregate sum. i wish to defer any determination on the article of molasses until we have gone through the other articles, that i may know how to vote on this. if gentlemen think my single vote of no consequence, they may proceed; but i may think the duty too high on molasses, and may be disposed to make it five cents, or less, if a reduction is made in the other articles; but i would not be understood to pledge myself for any particular sum. mr. ames thought the gentleman from pennsylvania (mr. fitzsimons) had misunderstood the gentleman from south carolina (mr. tucker) respecting his pledging himself to vote in favor of molasses. he believed the gentleman from south carolina incapable of making any improper accommodation either on this or any other occasion; the subject had never been mentioned to him, nor he believed to any body else, much less could the gentleman's intention be the result of bargain or compromise. for his own part, he would never consent to such a degradation of his rights as a member of the house, as to stipulate for the exercise of his opinion. mr. tucker.--if the gentleman from pennsylvania (mr. fitzsimons) supposes that i have bargained to vote for or against any measure, he does me wrong; and if he charges me with such actions, i desire he may state his reasons and explain himself. i did not hear perfectly what he said when he was up before, and therefore did not refute any improper construction he might have put on my arguments. mr. fitzsimons had no difficulty in declaring his meaning. he understood when the article of rum was under consideration, that the gentleman held out a promise to vote for the reduction of the duty on molasses, if the committee would agree with him in reducing generally. this promise was not made in a private manner; it was made by the gentleman in his place. he could not recite the particular expression of the gentleman, but he understood from it that the gentleman pledged himself to reduce the duty on molasses, if the gentlemen from the eastern states would join him in a general reduction. mr. tucker.--i expressed a wish for a general reduction to take place throughout the whole system; but i never made a promise with regard to a reduction of any particular article. mr. seney observed, that the discussion of molasses had been deferred when the subject was last before the house, in order to give time for a full investigation; but he conceived that no such reason now existed, in favor of its lying over, and therefore hoped the house would proceed to decide upon it. mr. ames was willing to proceed to the consideration of that subject; he did not wish it deferred to the end of the list, that it might be held over them _in terrorem_. there were several articles in the list, which he did not conceive to be taxed too high for collection, or out of proportion with others, therefore it was likely they would not be reduced. if this was the case, the reduction would not be general, and the gentleman from south carolina might not think it his duty to favor the reduction of molasses. he wished every article to stand upon its own bottom. if molasses was too high, the committee would lower it; if not, they will continue it at the rate it is, and the business would be done with. if the committee were disposed to proceed, he was ready to take up the subject. mr. carroll saw no reason for postponing the business at this time. when the subject was suspended on a former occasion, several gentlemen from massachusetts were absent on business, but it was surely unnecessary now to have any delay. after the repeated discussions it had undergone, he was satisfied gentlemen were prepared for a decision, and he hoped the question might be taken, and the committee proceed to get through the business. gentlemen should consider the daily loss which the revenue sustained by the delay of this bill; he cautioned them against considering overmuch, and letting slip the opportunity they now had to supply the public wants. mr. wadsworth would not go over the old ground, and enumerate all the reasons why a reduction of the duty on this article should take place. he satisfied himself with saying it was out of proportion, and too high ever to be collected with certainty; he wished the committee to lower it to three or four cents, and apply to an excise for the deficiency, not conceiving an excise on distilled spirits to be inconvenient or unpopular. mr. ames was sensible that any further discussion of the present subject was unpleasant, nay, it was painful to the committee; but he had such impressions on his mind with regard to its importance, that he must trespass on them again. on all subjects demonstration is desirable, but there is only one science capable of complete demonstration. many other sciences admit of different degrees of demonstration; but of all the sciences on earth, the science of politics is the least capable of affording satisfactory conclusions, while it is the one that, from its importance, requires the greatest degree of certainty; because when we are to consider those things which relate to the welfare of nations, it is of consequence, and nothing can be more desirable than that we adopt just principles in order to come at proper conclusions. in this science it is dangerous to adopt the visionary projects of speculators instead of principle. we ought to be cautious, therefore, in selecting the information upon which we form our system. he trusted to make it appear in the course of his arguments, that the propriety of the particular measure under discussion depended upon local knowledge, and yet it would be found of national concern. he believed it could be clearly proved to be as much the interest of one part as of another to have the duty reduced. it was laid down as a principle that all duties ought to be equal. he believed, if gentlemen gave themselves time for consideration, they would not contend this duty was equal. he said he had made some calculations, which demonstrated the inequality to a very surprising degree. the tax operated in two ways: first, as a tax on a raw material, which increased the price of stock and narrowed the sale; and second, as a tax on an article of consumption. it required the distillation and the consumption to be equal in every part of the union to render the duty equal in its operation; but no gentleman contended that the consumption or distillation was equal. the gentleman from virginia said, on a former occasion, that massachusetts would not contribute her proportion of the national revenue, because her exports were not equal to the southern states, and of consequence her imports are less; but if this fact is examined, it will be found that she does export in full proportion with the southern states. examine her custom-house books, and you will find it; but massachusetts is greatly concerned in navigation, and the wages of her seamen ought to be added to the amount of the profits of her industry. then if we consider her consumption, we shall find it in proportion also. admitting the people of new england to live more moderate than the opulent citizens of virginia or carolina, yet they have not such a number of blacks among them, whose living is wretched; consequently, the average consumption per head will be nearly the same. the fact is, that all taxes of this nature will fall generally in proportion to the ability to pay. laying a heavy duty on molasses incurs the necessity of allowing a drawback on country rum. by this system, we may lose more revenue than we gain; anyhow, it will render it very uncertain. it is a question of some importance, whether it would not be beneficial to the united states to establish a manufacture which would be very lucrative. but waiving that consideration, he would ask gentlemen, if there was any propriety in taxing molasses in its raw state, with a duty intended to be laid on rum? certainly this had better be by way of excise. in this mode the revenue would escape fraud by smuggling, which would otherwise be unavoidable. the tax was such a temptation, being thirty per cent. upon its value, that no checks could prevent a clandestine trade being carried on. without the molasses trade is continued, the fishery cannot be carried on. they are so intimately connected, that the weapon which wounds the one will stab the other. if by such measures as these we ruin one of the most valuable interests of the united states, will not the people have a right to complain that, instead of protecting, you injure and destroy their pursuits? he did not mean to say that the people would form unwarrantable combinations; but their exertions to support the government will be damped; they will look with chagrin on the disappointment of their hopes; and it will add to their vexation that they have been deceived under the most flattering appearances; for who could conceive that a government, constructed and adopted in the manner this has been, could ever be administered to the destruction of that welfare which it was formed to support? he recommended experience as the best guide, and said, that it was decidedly against high duties, particularly on molasses; and concluded with appealing to the justice and wisdom of the committee for a determination on this subject. mr. carroll would not take up the time of the committee with saying a word on the main subject, but begged them to consider of how much importance it was to the union to get this bill into operation. if every article was to be again debated in the manner it had already been, he could see no end to the business. unless gentlemen could advance some new and weighty arguments, he thought the time misspent in recapitulating those that had been unsuccessfully urged twice or three times before. mr. madison thought the arguments against the duty were inconsistent. he believed the gentlemen in opposition had not replied to an observation he had made, and which was of great force on his mind. the gentlemen all say that a heavy duty will ruin the distilleries and fisheries, and the people concerned in them; yet they profess themselves willing to lay the same duty, but in two forms instead of one. now he would be glad to know if the distilleries and fisheries would not be precisely in the same situation, let which would take place? on motion, the committee rose, and the house adjourned. tuesday, may . _duties on imports._ the house again resolved itself into a committee of the whole, mr. page in the chair, on the impost bill. the article of molasses being still under consideration: mr. ames wished to reply to the observation made yesterday by the gentleman from virginia. does that gentleman, said he, recollect, if we lay an excise, we prevent the burthen from being imposed upon the poor for their subsistence, as molasses, in the raw state, will be lightly taxed? in the next place, it is more favorable to the importers of that article than the impost; it does not require so large a proportion of their capital to be advanced in payment of duties, nor do they run the risk of bad debts, because it may be so regulated that the retailer shall secure the duty. another reason is, it will save the expense of a numerous host of custom-house officers, tide-waiters, &c. these considerations proved, that if the excise was no better than an impost, it was no worse; and as the duty would be better collected, and give less reason for smuggling, which, above all things, was dangerous to the revenue, it was sufficient to warrant the committee in giving the excise duty a preference. mr. goodhue would not trouble the house long on the subject; but begged leave to repeat the manner in which the molasses trade was connected with the fisheries, and the fisheries with the navigation; that, if the first is injured, the other two are wounded through its side. about three-fifths of all the fish that are put up for that market, are of an inferior quality, and would not sell elsewhere. the french would not permit us to carry them there, but because we take their molasses in exchange; they will not let their colonies send the molasses to france, lest it interfere with their brandy. now, any impediment to the exportation of molasses, will prevent the exportation of fish; if we cannot export the fish, for what purpose shall we continue our fisheries? and if they are given up, how are we to form seamen to man our future navy? mr. madison said his mind was incapable of discovering any plan that would answer the purpose the committee have in view, and not produce greater evils than the one under consideration. he thought an excise very objectionable, but as no actual proposition for entering into such a system was before the committee, he forbore to say any thing further about it. he admitted an excise would obviate in part some of the difficulties; but he did not think the answer given to his argument altogether satisfactory; yet there was another argument he urged on a former occasion remaining unanswered--it was, that, at this moment, the fisheries, distilleries, and all their connections, were laboring under heavier duties than what is now proposed; true, the duty is collected in a different mode, but it affects the consumer in the same manner. the gentlemen have said, to be sure, that the duty is evaded; but if half is collected, it amounts to more than six cents per gallon. it is said that a tax on molasses will be unpopular, but not more so than a tax on salt. can gentlemen state more serious apprehensions in the former than the latter case? yet the committee did not forego a productive fund, because the article was a necessary of life, and in general consumption. if there is the disposition that is represented for people to complain of the oppression of government, have not the citizens of the southern states more just ground for complaint than others? the system can only be acceptable to them, because it is essentially necessary to be adopted for the public good. gentlemen argue, that a tax on molasses is unpopular, and prove it by experience under the british government. if this is to be adduced as a proof of the popularity of a measure, what are we to say with respect to a tax on tea? gentlemen remembered, no doubt, how odious this kind of tax was thought to be throughout america; yet the house had, without hesitation, laid a considerable duty upon it. he did not imagine that a duty on either of those articles was in itself objectionable; it was the principle upon which the tax was laid that made them unpopular under the british government. it is said that this tax is unjust; now, he had not a single idea of justice, that did not contradict the position. if it be considered as it relates to rum, he was certain the consumers of foreign rum paid a larger proportion of revenue into the treasury than the consumers of country rum; they paid more than equal distributive justice required; if it was considered as it respected molasses, there would appear no injustice. molasses was consumed in other states; but if it was not, sugar was used in its stead, and subjected to a duty full as high as that on molasses. but dismissing both these considerations, and even admitting the whole weight to fall upon the northern states, it would not be disproportioned, because, in the long list of enumerated articles subject to a high duty, they imported few or none; indeed, the articles were pretty generally taxed for the benefit of the manufacturing part of the northern community; see loaf sugar, candles, cheese, soap, &c. he hoped gentlemen would not infer from this observation, that he thought the encouragement held out by the bill to manufactures improper; far from it; he was glad to see their growing consequences, and was disposed to give them every aid in his power. from this view of the subject, he was inclined to adhere to the bill, and not make any reduction. mr. gerry hoped the committee would not consider the subject as finally decided; he thought it deserving of further investigation, and expected the committee would be satisfied of the propriety of making some reduction. he felt a concern at being obliged to extend the discussion, but his duty impelled him to oppose a measure he conceived injurious to his country. gentlemen had contended, that a duty of six cents per gallon on molasses was just and equal; for his part, he could not discover, with all the exertions his mind was capable of making, how gentlemen prove this to be the case; it appeared to him partial and oppressive. the principle laid down in the constitution for an equal distribution of taxes was, that they shall be apportioned among the several states, according to their respective number of inhabitants. this principle is made positive as it respects direct taxes; but he thought the equality ought to extend itself to every possible case. the power possessed by the house, with regard to revenue and the power of making all necessary laws, enabled the general government to exist independent of subordinate associations; but if they were inclined to annihilate the state governments, yet it would be their interest to attend to the advantages of the community, and administer their power so as not to make it burthensome and oppressive. now, he wished to know, what principle of justice authorized the committee to lay a duty of six cents on molasses? unfortunately for massachusetts, she imports a greater quantity than the whole union besides. this makes her interest stand alone, and her representatives are left to labor the point, knowing the ill effect it will have upon their constituents. under these circumstances, it is necessary to pay particular attention to the justice of the measure; gentlemen should consider that, in such cases, there is danger of interest prevailing over equity and policy. certainly, if the measure is pursued, we shall discover this effect in the end. gentlemen have considered the arguments brought against this duty as standing upon local ground, advocating the local interest of massachusetts. he would examine this position. it is the interest of a majority of the people of that state, that as much revenue should be drawn from molasses as possible. i say it is the interest of the state, for their interest is divided between the landed and commercial; the landed interest predominates, and it was always supposed that the commercial bore a greater share of the public burthen than it ought. the conduct of the state of massachusetts ought to be esteemed by us as the best guide to discover how far our commercial regulations, as they respect that state, are consistent with policy, if she furnishes the best example. can we find that she ever imposed a duty of six cents per gallon on molasses? not a single instance can be produced where she raised revenue from this article. if they then never laid a duty upon it, and they were disposed to get every thing in their power from commerce, we must conclude that if it could have been laid they would have done it. it is not the landed citizens, if he might use the term, who consume molasses; it is the inhabitants of the sea-coast; the former had the power, and they were interested to lay such a tax, it might therefore be expected they would have done it, if they had not been convinced it would have destroyed the fisheries and navigation of the state. the gentleman from virginia (mr. madison) cannot see how an impost on molasses can affect the distilleries and fisheries. after having been repeated over and over again, it would be unnecessary that he should dwell on this point. but every one could see the connection; if we do not import molasses, we cannot carry on our distilleries nor vend our fish; and it will be impossible to import molasses under such heavy duties; at least the future importation will be limited to two-thirds of the present, because the demand will be in proportion to the increase of price, and the merchant will not have capital to import more than two-thirds of his usual quantity. he would not reiterate the arguments respecting the fisheries; it was well known to be the best nursery for seamen, the united states had no other, and it never could be the intention of gentlemen to leave the navigation of the union to the mercy of foreign powers. it is of necessity, then, that we lay the foundation of our maritime importance as soon as may be, and this can be done only by encouraging our fisheries. it is also well known that we have a number of rivals in this business desirous of excluding us from the fishing banks altogether. this consideration of itself is sufficient to induce a wise legislature to extend every encouragement to so important a concern. in any regulation they make, by which it can be effected, they ought to be sure of the ground on which they go. it appeared to him that six cents would have the most ruinous consequences to the general interest; he therefore hoped gentlemen would agree to reduce it, if not so as to place it among the _ad valorem_ articles, at least down to two cents. however, as the committee are not prepared to say the particular sum proper to be laid, he hoped they would agree to leave it a blank, to be filled up at some future stage of the business. the question was now taken on striking out six cents, and passed in the affirmative: ayes , noes . propositions were severally made for filling up the blank with two, three, four, and five cents; five being the highest was first put and agreed to--ayes , noes . the committee proceeded to consider the subsequent articles; but not having time to go through the whole, they rose, and reported progress, and the house adjourned. wednesday, may . the petition of john fitch, of pennsylvania, was presented, stating that he is the original discoverer of the principle of applying steam-power to the purposes of navigation, and has obtained an exclusive right therein for a term of years, in the states of virginia, delaware, pennsylvania, new jersey, and new york, and praying that his rights may be secured to him by law, so as to preclude subsequent improvers upon his principle from participation therein, until the expiration of his granted right. referred to a committee, consisting of messrs. huntington, cadwalader, and contee, to report thereon. _duties on imports._ the house again resolved itself into a committee of the whole on the impost bill, mr. page in the chair. african slaves. mr. parker moved to insert a clause in the bill, imposing a duty on the importation of slaves, of ten dollars each person. he was sorry that the constitution prevented congress from prohibiting the importation altogether; he thought it a defect in that instrument that it allowed of such a practice; it was contrary to the revolution principles, and ought not to be permitted; but as he could not do all the good he desired, he was willing to do what lay in his power. he hoped such a duty as he moved for would prevent, in some degree, this irrational and inhuman traffic; if so, he should feel happy from the success of his motion. mr. smith, of south carolina, hoped that such an important and serious proposition as this would not be hastily adopted. it was a very late moment for the introduction of new subjects. he expected the committee had got through the business, and would rise without discussing any thing further. at least, if gentlemen were determined on considering the present motion, he hoped they would delay it for a few days, in order to give time for an examination of the subject. it was certainly a matter big with the most serious consequences to the state he represented; he did not think any one thing that had been discussed was so important to them, and the welfare of the union, as the question now brought forward; but he was not prepared to enter on any argument, and therefore requested the motion might either be withdrawn or laid on the table. mr. sherman approved of the object of the motion, but he did not think this bill was proper to embrace the subject. he could not reconcile himself to the insertion of human beings as an article of duty, among goods, wares, and merchandise. he hoped it would be withdrawn for the present, and taken up hereafter as an independent subject. mr. jackson, observing the quarter from which this motion came, said it did not surprise him, though it might have that effect upon others. he recollected that virginia was an old settled state, and had her complement of slaves; so she was careless of recruiting her numbers by this means; the natural increase of her imported blacks was sufficient for their purpose; but he thought gentlemen ought to let their neighbors get supplied, before they imposed such a burthen upon the importation. he knew this business was viewed in an odious light to the eastward, because the people were capable of doing their own work, and had no occasion for slaves; but gentlemen will have some feeling for others; they will not try to throw all the weight upon those who have assisted in lightening their burthens; they do not wish to charge us for every comfort and enjoyment of life, and at the same time take away the means of procuring them; they do not wish to break us down at once. he was convinced, from the inaptitude of the motion, and the want of time to consider it, that the candor of the gentleman would induce him to withdraw it for the present; and if ever it came forward again, he hoped it would comprehend the white slaves as well as black, who were imported from all the jails of europe; wretches, convicted of the most flagrant crimes, were brought in and sold without any duty whatever. he thought that they ought to be taxed equally with the africans, and had no doubt but the constitutionality and propriety of such a measure was equally apparent with the one proposed. mr. tucker thought it unfair to bring in such an important subject at a time when debate was almost precluded. the committee had gone through the impost bill, and the whole union was impatiently expecting the result of their deliberations; the public must be disappointed, and much revenue lost, or this question cannot undergo that full discussion which it deserves. we have no right, said he, to consider whether the importation of slaves is proper or not; the constitution gives us no power on that point; it is left to the states to judge of that matter as they see fit. but if it is a business the gentleman is determined to discourage, he ought to have brought his motion forward sooner, and even then not have introduced it without previous notice. he hoped the committee would reject the motion, if it was not withdrawn. he was not speaking so much for the state he represented as for georgia; because the state of south carolina had a prohibitory law, which could be renewed when its limitation expired. mr. parker had ventured to introduce the subject after full deliberation, and did not like to withdraw it. although the gentleman from connecticut (mr. sherman) had said, that they ought not to be enumerated with goods, wares, and merchandise, he believed they were looked upon by the african traders in this light. he knew it was degrading the human species to annex that character to them; but he would rather do this than continue the actual evil of importing slaves a moment longer. he hoped congress would do all that lay in their power to restore to human nature its inherent privileges, and, if possible, wipe off the stigma under which america labored. the inconsistency in our principles, with which we are justly charged, should be done away, that we may show, by our actions, the pure beneficence of the doctrine we hold out to the world in our declaration of independence. mr. sherman thought the principles of the motion, and the principles of the bill, were inconsistent; the principle of the bill was to raise revenue, the principle of the motion to correct a moral evil. now, considering it as an object of revenue, it would be unjust, because two or three states would bear the whole burthen, while he believed they bore their full proportion of all the rest. he was against receiving the motion into this bill, though he had no objection to taking it up by itself, on the principles of humanity and policy; and therefore would vote against it if it was not withdrawn. mr. ames joined the gentleman last up; no one could suppose him favorable to slavery; he detested it from his soul; but he had some doubts whether imposing a duty on the importation would not have the appearance of countenancing the practice; it was certainly a subject of some delicacy, and no one appeared to be prepared for the discussion. he therefore hoped the motion would be withdrawn. mr. livermore was not against the principle of the motion; but in the present case he conceived it improper. if negroes were goods, wares, or merchandise, they came within the title of the bill; if they were not, the bill would be inconsistent. but if they are goods, wares, or merchandise, the five per cent. _ad valorem_ will embrace the importation, and the duty of five per cent. is nearly equal to ten dollars per head; so there is no occasion to add it even on the score of revenue. mr. jackson said, it was the fashion of the day to favor the liberty of slaves. he would not go into a discussion of the subject; but he believed it was capable of demonstration that they were better off in their present situation than they would be if they were manumitted. what are they to do if they are discharged? work for a living? experience has shown us they will not. examine what has become of those in maryland; many of them have been set free in that state. did they turn themselves to industry and useful pursuits? no, they turn out common pickpockets, petty larceny villains. and is this mercy, forsooth, to turn them into a way in which they must lose their lives; for when they are thrown upon the world, void of property and connections, they cannot get their living but by pilfering. what is to be done for compensation? will virginia set all her negroes free? will they give up the money they cost them, and to whom? when this practice comes to be tried there, the sound of liberty will lose those charms which make it grateful to the ravished ear. but our slaves are not in a worse situation than they were on the coast of africa. it is not uncommon there for the parents to sell their children in peace; and in war, the whole are taken and made slaves together. in these cases, it is only a change of one slavery for another; and are they not better here, where they have a master, bound by the ties of interest and law, to provide for their support and comfort in old age or infirmity, in which, if they were free, they would sink under the pressure of woe for want of assistance? he would say nothing of the partiality of such a tax; it was admitted by the avowed friends of the measure; georgia, in particular, would be oppressed. on this account, it would be the most odious tax congress could impose. mr. schureman hoped the gentleman would withdraw his motion, because the present was not the time or place for introducing the business. he thought it had better be brought forward in the house as a distinct proposition. if the gentleman persisted in having the question determined, he would move the previous question, if he was supported. mr. madison.--i cannot concur with gentlemen who think the present an improper time or place to enter into a discussion of the proposed motion. if it is taken up in a separate view, we shall do the same thing at a greater expense of time. but gentlemen say that it is improper to connect the two objects, because they do not come within the title of the bill; but this objection may be obviated by accommodating the title to the contents. there may be some inconsistency in combining the ideas which gentlemen have expressed, that is, considering the human race as a species of property; but the evil does not arise from adopting the clause now proposed; it is from the importation to which it relates. our object in enumerating persons on paper with merchandise, is to prevent the practice of actually treating them as such, by having them in future forming part of the cargoes of goods, wares, and merchandise to be imported into the united states. the motion is calculated to avoid the very evil intimated by the gentleman. it has been said that this tax will be partial and oppressive; but if a fair view is taken of this subject, i think we may form a different conclusion. but if it be partial or oppressive, are there not many instances in which we have laid taxes of this nature? yet are they not thought to be justified by national policy? if any article is warranted on this account, how much more are we authorized to proceed on this occasion? the dictates of humanity, the principles of the people, the national safety and happiness, and prudent policy require it of us. the constitution has particularly called our attention to it; and of all the articles contained in the bill before us, this is one of the last i should be willing to make a concession upon, so far as i am at liberty to go, according to the terms of the constitution or principles of justice. i would not have it understood that my zeal would carry me to disobey the inviolable commands of either. i understood it had been intimated, that the motion was inconsistent or unconstitutional. i believe, sir, my worthy colleague has formed the words with a particular reference to the constitution; any how, so far as the duty is expressed, it perfectly accords with that instrument. if there are any inconsistencies in it, they may be rectified. i believe the intention is well understood, but i am far from supposing the diction improper. if the description of the persons does not accord with the ideas of the gentleman from georgia, (mr. jackson,) and his idea is a proper one for the committee to adopt, i see no difficulty in changing the phraseology. i conceive the constitution, in this particular, was formed in order that the government, whilst it was restrained from laying a total prohibition, might be able to give some testimony of the sense of america with respect to the african trade. we have liberty to impose a tax or duty upon the importation of such persons, as any of the states now existing shall think proper to admit; and this liberty was granted, i presume, upon two considerations. the first was, that until the time arrived when they might abolish the importation of slaves, they might have an opportunity of evidencing their sentiments on the policy and humanity of such a trade. the other was, that they might be taxed in due proportion with other articles imported; for if the possessor will consider them as property, of course they are of value, and ought to be paid for. if gentlemen are apprehensive of oppression from the weight of the tax, let them make an estimate of its proportion, and they will find that it very little exceeds five per cent. _ad valorem_; so that they will gain very little by having them thrown into that mass of articles; whilst, by selecting them in the manner proposed, we shall fulfil the prevailing expectations of our fellow-citizens, and perform our duty in executing the purposes of the constitution. it is to be hoped, that by expressing a national disapprobation of this trade, we may destroy it, and save ourselves from reproaches, and our posterity the imbecility ever attendant on a country filled with slaves. i do not wish to say any thing harsh to the hearing of gentlemen who entertain different sentiments from me, or different sentiments from those i represent; but if there is any one point in which it is clearly the policy of this nation, so far as we constitutionally can, to vary the practice obtaining under some of the state governments, it is this. but it is certain a majority of the states are opposed to this practice; therefore, upon principle, we ought to discountenance it as far as is in our power. if i were not afraid of being told that the representatives of the several states are the best able to judge of what is proper and conducive to their particular prosperity, i should venture to say that it is as much the interest of georgia and south carolina as of any in the union. every addition they receive to their number of slaves, tends to weaken and render them less capable of self-defence. in case of hostilities with foreign nations, they will be the means of inviting attack, instead of repelling invasion. it is a necessary duty of the general government to protect every part of the empire against danger, as well internal as external. every thing, therefore, which tends to increase this danger, though it may be a local affair, yet, if it involves national expense or safety, becomes of concern to every part of the union, and is a proper subject for the consideration of those charged with the general administration of the government. i hope, in making these observations, i shall not be understood to mean that a proper attention ought not to be paid to the local opinions and circumstances of any part of the united states, or that the particular representatives are not best able to judge of the sense of their immediate constituents. if we examine the proposed measure by the agreement there is between it and the existing state laws, it will show us that it is patronized by a very respectable part of the union. i am informed that south carolina has prohibited the importation of slaves for several years yet to come. we have the satisfaction, then, of reflecting that we do nothing more than their own laws do at this moment. this is not the case with one state. i am sorry that her situation is such as to seem to require a population of this nature; but it is impossible, in the nature of things, to consult the national good, without doing what we do not wish to do to some particular part. perhaps gentlemen contend against the introduction of the clause on too slight grounds. if it does not comport with the title of the bill, alter the latter. if it does not conform to the precise terms of the constitution, amend it. but if it will tend to delay the whole bill, that, perhaps, will be the best reason for making it the object of a separate one. if this be the sense of the committee, i shall submit. mr. gerry thought all duties ought to be laid as equal as possible. he had endeavored to enforce this principle yesterday, but without the success he wished for; he was bound by the principle of justice, therefore, to vote for the proposition. but if the committee were desirous of considering the subject fully by itself, he had no objection; but he thought when gentlemen laid down a principle, they ought to support it generally. mr. burke said, gentlemen were contending for nothing; that the value of a slave averaged about eighty pounds, and the duty on that sum at five per cent. would be ten dollars. as congress could go no further than that sum, he conceived it made no difference whether they were enumerated or left in the common mass. mr. madison.--if we contend for nothing, the gentlemen who are opposed to us do not contend for a great deal. but the question is, whether the five per cent. _ad valorem_, on all articles imported, will have any operation at all upon the introduction of slaves, unless we make a particular enumeration on this account. the collector may mistake; for he would not presume to apply the term goods, wares, and merchandise to any person whatsoever. but if that general definition of goods, wares, and merchandise, is supposed to include african slaves, why may we not particularly enumerate them, and lay the duty pointed out by the constitution, which, as gentlemen tell us, is no more than five per cent. upon their value. this will not increase the burthen upon any; but it will be that manifestation of our sense expected by our constituents, and demanded by justice and humanity. mr. bland had no doubt of the propriety or good policy of this measure. he had made up his mind upon it; he wished slaves had never been introduced into america. but if it was impossible at this time to cure the evil, he was very willing to join in any measures that would prevent its extending further. he had some doubts whether the prohibitory laws of the states were not in part repealed. those who had endeavored to discountenance this trade by laying a duty on the importation, were prevented by the constitution from continuing such regulation, which declares that no state shall lay any impost or duties on imports. if this were the case, and he suspected pretty strongly that it was, the necessity of adopting the proposition of his colleague was more apparent. mr. sherman said the constitution does not consider these persons as species of property; it speaks of them as persons, and says, that a tax or duty may be imposed on the importation of them into any state which shall permit the same, but they have no power to prohibit such importation for twenty years. but congress have power to declare upon what terms persons coming into the united states shall be entitled to citizenship; the rule of naturalization must, however, be uniform. he was convinced there were others who ought to be regulated in this particular, the importation of whom was of an evil tendency; he meant convicts particularly. he thought that some regulation respecting them was also proper; but it being a different subject, it ought to be taken up in a different manner. mr. madison was led to believe, from the observation that had fallen from the gentlemen, that it would be best to make this the subject of a distinct bill: he, therefore, wished his colleague would withdraw his motion, and move in the house for leave to bring in a bill on the same principles. mr. parker consented to withdraw his motion, under a conviction that the house was fully satisfied of its propriety. he knew very well that these persons were neither goods nor wares, but they were treated as articles of merchandise. although he wished to get rid of this part of his property, yet he should not consent to deprive other people of theirs by any act of his, without their consent. the committee rose, reported progress, and the house adjourned. friday, may . mr. white, one of the representatives from virginia, presented to the house a resolve of the legislature of that state, of the th of december, , offering to the acceptance of the federal government, ten miles square of territory, or any lesser quantity, in any part of that state, which congress may choose, to be occupied and possessed by the united states, as the seat of the federal government; which was read, and ordered to lie on the table. an engrossed bill for laying a duty on goods, wares, and merchandises, imported into the united states, was read a third time, and, on a motion made, ordered to be recommitted to a committee of the whole house immediately. the house, accordingly, resolved itself into the said committee; and, after some time, the committee rose, and reported the bill with amendments, which were agreed to by the house. mr. madison made a motion further to amend the said bill, by adding to the end thereof a clause for limiting the time of its continuance. mr. ames expressed a doubt of the propriety of the motion. he thought the bill ought to be commensurate with the wants of government. mr. fitzsimons.--for want of a proper knowledge of the true situation of our affairs, we are unable to determine how far the present provision is equal to the necessities of the union, and this circumstance will tend to add considerably to our embarrassment in limiting the duration. if we make the time too short to supply the public wants, we shall not hold out to the public creditors a sufficient security for the punctual payment of their debts. if we should want to raise money by a loan, we could only expect it according to the duration of the fund: this makes the present motion a subject of serious consideration. not that i object to what the gentleman has in contemplation, but i wish such language to be used, that shall designate the continuation of the law to be till the wants are supplied and thereafter cease. i am not of opinion that it should be for half a century, because i hope our national debt will be extinguished in much less time; but really i must confess, at this moment, i feel considerable embarrassment in determining in my mind the period for which it should exist, whether an enumerated term of years, or a general declaration during the continuance of the public wants. mr. lee thought the operation of the law could not be well understood; that it was a system of experiment, and ought to be temporary, in order that a future congress might make such amendments as time should discover to be necessary. how perfect soever the theory might appear, practice might prove it otherwise; he therefore wished its operation limited for three or five years. he thought it would be wise in the house to adopt the motion, in order to prevent any injustice which a permanent and imperfect regulation might have on posterity. he expected this would beget confidence in the government, which was to him a very desirable object. mr. white.--the constitution having authorized the house of representatives alone to originate money bills, places an important trust in our hands, which, as their protectors, we ought not to part with. i do not mean to imply that the senate are less to be trusted than this house; but the constitution, no doubt for wise purposes, has given the immediate representatives of the people a control over the whole government in this particular, which for their interest they ought not to let out of their hands. besides, the constitution says further, that no appropriation shall be for a longer term than two years, which of consequence limits the duration of the revenue law to that period; when, if it is found conducive to the public welfare, it may be continued by the legislators appointed by the people, and who alone are authorized to declare upon this question in the first instance. mr. livermore hoped but little time would be taken up in the discussion of this subject; the people were anxiously waiting the result of their deliberations; beside the impost was daily slipping away. he had no doubt of the propriety of the motion, because from the acknowledged imperfections of the bill, it would never do for a permanent system. if the people, who consider themselves subjected to very high and very unequal duties, find no termination of the grievance, they will immediately adopt measures in their defence, to thwart the views of government; but if they understand the law as temporary, and only passed in order to gain experience for forming a better system, they will be induced to give it fair play, and bear the burthen without complaint, trusting to the wisdom and justice of congress for such alterations as practice may show to be necessary. besides, the objects for which the revenue is now wanting, will decrease annually; this will be an additional reason for limiting its duration. he was not for a very short term; he thought five, seven, or ten years, would be more eligible than two or three, but he was decidedly against making it perpetual. mr. sinnickson had understood, that one of the objects of the bill was the re-establishment of public credit; but it never could be imagined that a law, limited to three or four years, could do this in any great degree; nor could any advantage arise from loans negotiated and terminated within such a short period. under these impressions, he conceived the motion struck at the credit of the new government, which the people had just established. mr. madison.--when he offered this amendment to the bill, he thought its propriety was so obvious and striking, that it would meet no opposition. to pass a bill, not limited in duration, which was to draw revenue from the pockets of the people, appeared to be dangerous in the administration of any government; he hoped, therefore, the house would not be less cautious in this particular than other nations are, who profess to act upon sound principles. he imagined it might be considered by their constituents as incompatible with the spirit of the constitution, and dangerous to republican principles, to pass such a law unlimited in its duration. besides the restoration of public credit, he thought the act had in view the encouragement of a particular description of people, which might lead them into enterprises of a peculiar nature, for the protection of which the public faith seemed to be pledged. but would gentlemen infer from hence, that no alteration ought to take place if the manufactures were well established? the subject appeared to him in a twofold point of view; first, to provide for the exigencies of government, and second, for the establishment of public credit; but he thought both these objects could be obtained without making the bill perpetual. if the government showed a proper attention to the punctual performance of its engagements, it would obtain the latter; the other would be secured by making provision as the occasion demanded. if the bill was to be made perpetual, it would be continued after the purpose for which it was adopted had ceased; the error would in this case be irremediable; whereas, if its limitation was determined, it would always be in the power of the government to make it commensurate with what the public debts and contingencies required. the constitution, as had already been observed, places the power in the house of originating money bills. the principal reason why the constitution had made this distinction was, because they were chosen by the people, and supposed to be best acquainted with their interests and ability. in order to make them more particularly acquainted with these objects, the democratic branch of the legislature consisted of a greater number, and were chosen for a shorter period, so that they might revert more frequently to the mass of the people. now, if a revenue law was made perpetual, however unequal its operation might be, it would be out of the power of this house to effect an alteration; for if the president chose to object to the measure, it would require two-thirds of both houses to carry it. even if the house of representatives were unanimous in their opinion that the law ought to be repealed, they would not be able to carry it, unless a great majority appeared in the senate also. mr. boudinot said, the time mentioned by the former congress, and to which they requested the concurrence of the several states, was, that the impost duties might be continued for twenty-five years. this request was made on full consideration, and they did not think it was more than sufficient to discharge the principal and interest of the national debt. he concluded, therefore, that it was better to let the law remain without limitation; because when they found the purposes for which it was intended were accomplished, it would be in the power of congress to repeal the law. mr. lawrence thought the present was a subject of great importance, and he lamented it was not brought forward at an earlier period, because he feared the time would not allow that full discussion or deliberation which ought to take place. he wished also that the house was acquainted with the necessities of the united states, that so they might make provision accordingly; but these two points were mere matter of speculation as to their precise amount; yet he believed it was agreed on all hands, that the ways and means provided in this bill for the support of government, the payment of interest and instalments of the foreign and domestic debt, were, so far as agreed to, inadequate to the object. if this be the case, the public debt must accumulate; and as we do not know when the time may come for its extinguishment, the provision cannot be limited; for every gentleman will agree, that if the demand for revenue be increased, the fund ought to be commensurate to the object. is there any time when the civil list will cease its demand? if there is not, there will be a perpetual call for revenue. he thought it absolutely impossible to provide for the payment of the debts, if the bill was limited to two, three, or four years; such a precarious provision would never tend to the re-establishment of public credit. if the bill was not limited, it would always be in the power of the legislature to lower the duties, or make such other alteration as might, upon experience, be thought beneficial to the community; whereas if the bill were limited, it would be thought improper to make any amendments during the term for which it is enacted, although those amendments appeared indispensably necessary. but why is this degree of caution necessary? will not the administration of public affairs be conducted in future by representatives as good as ourselves? will they have less wisdom or virtue, to discover and pursue the good of their fellow-citizens than we have? mr. bland.--our public credit consists of two branches: first, as it respects the evidences of our debt, in the hands of those from whom we have had money or services; and secondly, as it respects our ability to borrow in future. now, the first branch of public credit depends upon the punctuality with which the interest is paid; but this in foreign nations, does not depend upon the limitation of the act. do gentlemen suppose our laws, like those of the medes and persians, unchangeable? can any person, who has read our constitution, believe that it is in our power to pass a law without limitation? no, it is impossible. every person knows that a future congress may repeal this and every other law we pass, whenever they think proper. the constitution had particularly intrusted the house of representatives with the power of raising money; great care was necessary to preserve this privilege inviolate; it was one of the greatest securities the people had for their liberties under this government. moreover, the importance of the house itself depended upon holding the purse-strings; if they once part with this power, they would become insignificant, and the other branch of the legislature might become altogether independent of them. for these reasons, he was in favor of the motion of his honorable colleague, and hoped it would obtain. mr. gerry.--there seems to be a great variety of opinions entertained by gentlemen on this question. but he thought they would all agree on these two points: first, that there were very great demands upon the federal treasury; and, secondly, that they had no kind of documents to show what they were, or what the revenue bill would produce. under these circumstances, gentlemen must agree, that there is danger of passing a law that would operate oppressively, and without reason. there was also danger of erring in the mode of collecting, for want of experience to guide them. from these considerations, there was no doubt but the act would require the reconsideration of the legislature in a short time; there may be applications from the people of all quarters to repeal a part of it. but what are their immediate representatives to do, in case the bill be made perpetual? they may be convinced that a repeal would be just and necessary; but it may not be in their power to remedy the grievances of their constituents, however desirous they may be of doing so; for, although this house may originate and carry a bill unanimously through for the repeal, yet it will be in the power of the president, and the minority of the other branch of congress, to prevent a repeal. mr. huntingdon thought it easy to see the danger of making this bill perpetual: besides parting with the power which the constitution gave to the house of representatives, in authorizing them solely to originate money bills, there would be another inconvenience, which was, extending the revenue beyond what the nature of the public debt required. the foreign debt was payable by instalments; it was saying nothing to allege that the debt would accumulate, because the united states must make provision for the annual extinguishment of a part. if the revenue, arising from the impost, be insufficient for this purpose, recourse must be had to some other fund, which will enable us to perform the engagements of the late congress. it is true the debt is large, and will take time to pay it off, but he had no doubt but it would be done according to contract, and with honor to the union. how, then, can gentlemen suppose the revenue ought to be perpetual, in order to be commensurate with the object? if they contemplated the contraction of more debts in future, the supposition might be true; but he saw no reason why gentlemen should extend their views so far. he thought if a future war, or some other untoward circumstance, should increase the national debt, it ought to be provided for by the government who were acquainted with the necessity. he thought the house ought to consider seriously before they parted with their powers; it was easy for them to pass a bill to give power, but it was difficult to recall it. he had seen many instances of this kind; one in particular in the state from which he came, where the legislature had given the appointment of sheriffs, and some other little matters, out of their hands, and had been a long time endeavoring to get it back; but they had not been able to obtain it. he had no suspicions of any character in the senate, but the constitution had made that body in some degree perpetual, to obtain a permanency in the laws; if, therefore, this revenue bill had once their approbation, they might be inclined to continue it, even against the sentiments of the people and of the house. though he was not against trusting the gentlemen who now composed the senate, he was against trusting their successors. mr. smith, of south carolina, was also in favor of the clause; he conceived the only reason of weight urged against it, related to the restoration of public credit; but he thought every person possessed of the stock or debt of the united states would have the same feelings and reasoning as the house; they would know that their demands depended upon a higher source than congress, and might be sure that we would do our duty in making particular provision. if congress neglected this, one part of the creditors would compel them. if it was found that the united states were not disposed to pay their debts, foreigners would find the means to make them. taking it therefore for granted, that congress would always provide for these objects, he would proceed to consider what effect might arise from a permanent or temporary provision. if the latter were made, the creditors would honor us for our exertions, and confide in our continuing to provide for them in the manner we should find upon experience most convenient to the community. if the system was declared to be a perpetual provision for the payment of their interest, it would give no hope, in the first place, for the redemption of the capital; and in the second, if congress were to alter it, and which, in all probability they shortly must, the security would be impaired, and an essential injury done to the public credit, which we are so desirous to revive. mr. ames considered this as a very important question; and in order that his own mind might be fully enlightened, he had listened with the most unwearied attention to the arguments urged on both sides; but he was far from being satisfied that the motion was necessary or proper for the house to adopt. gentlemen tell us they are willing to make the revenue commensurate with the debt. if they do this, all the inconveniences resulting from the imperfection of the system will be entailed upon us for a number of years. other gentlemen mention a year or two for its limitation. can the house listen seriously to such a proposition? if we were to tell our creditors that we are making provision for them for one year, would it tend to inspire them with confidence in our wisdom or justice? would our foreign creditors believe we were scrupulously fulfilling our engagements with them? no: nothing less than a fixed, permanent system, can beget confidence or give security. an illusory system of one or two years' duration would engender distrust; its very visage would make the public suspect deception. if we do not mean to deceive, why not make the provision commensurate to the occasion? his idea of a temporary act was _pro hac vice_, by way of experiment: but he thought the house could not make the experiment with this bill, because the public credit would not admit of it. if this act be made for one year, will it not be a considerable expense to the public by going over all the ground again, which had taken the house such a length of time to discuss? what has been the conduct of great britain, in relation to her funds? what has carried the credit of that kingdom to a superior eminence, but the attention she has paid to public credit? he considered these advantages as having made that nation rich and powerful. he believed a like conduct on our part would produce the same consequences, because our government is of such a nature as to give the public creditors the greatest security they could wish. if the revenue is appropriated, and the law for collecting it is without any limitation, the funds cannot be taken away without a positive act of injustice, to which both houses of the legislature must assent by a majority of two-thirds, or three independent parties must unite. it was therefore three to one in favor of the public creditor, that the funds appropriated to his use would not be annihilated. under these circumstances, government might more safely be trusted. this, he observed, was not the case under despotic princes; their will alone could tear away the security of the subject. under a pure democracy, the case was almost as bad; no confidence could be placed, because the caprice and whim of one body could dictate a change. mr. page expressed his surprise to find gentlemen opposed to the limitation of the bill, who had complained so much of its imperfections. he thought a measure of the kind now proposed absolutely necessary to reconcile these gentlemen to particular parts of the bill. for his own part, he had objections to some articles, and for that reason, if there was no other, he would be in favor of the limitation. it had been frequently asserted that half the revenue would be lost by smuggling. can this, then, he would ask, be a bill proper to perpetuate, or fit for the restoration of the credit of the united states? he asked gentlemen whether they would lend a hand to rivet round the necks of their fellow-citizens a regulation which experience had convinced them was unjust, unequal, and oppressive? yet the gentleman from massachusetts (mr. ames) had declared that experience had convinced him that at least one particular article was subjected to a duty of this kind. mr. gerry asked his colleague if he advocated carrying the taxes to such an extent as to accumulate sums in the treasury for which the united states had no particular use? yet if this revenue law were made perpetual, it would collect money into the public coffers after the national debt was paid. this would be such a temptation to the executive to possess itself by force of the treasures of the nation, as he hoped would never be put in its way. if our commerce and population increased, this revenue would increase in the same proportion. he could not, therefore, bear the idea of all this money being collected into one spot, unless there was an absolute demand for it. he thought it incompatible with the liberty and security of the people, and therefore hoped the house would agree to a short limitation. mr. madison, for the sake of accommodation, would make another proposition. he was extremely sorry to differ with gentlemen about modes, when their object appeared to be the same. he thought the spirit of the constitution and the structure of the government rendered it improper to pass a perpetual revenue law. the arguments had been clear on this point; but as there was an evident propriety in making the means commensurate to the occasion, he was inclined to give the bill such a perpetuity as would answer the purpose of providing for the public debt and restoring the national credit. he thought this might be done by modifying his motion so as to refer to the collection bill; for he hoped, before that passed, the house would be able to ascertain the appropriation, and could limit it accordingly. the words he would propose were, that this act should not continue and be in force longer than the ---- day of ----, unless otherwise limited by the act providing for the appropriation. as he had heard it intimated that the yeas and nays would be called on this question, he was desirous of rendering the clause as satisfactory as possible. mr. ames could not bear to lie under the imputation of inconsistency, with which he was charged, inasmuch as he contended against the limitation of a bill he had opposed as oppressive in some of its parts. he believed the amendment now offered was new to almost every gentleman. for his part, he had always supposed it was intended as a permanent system. he remembered many gentlemen made use of this expression, through the various debates which had taken place in the several stages of the bill. he had understood it in this light, and had therefore combated, with some degree of energy, such parts as appeared to him impolitic or unjust. he imagined the gentlemen on both sides had labored to make the bill as perfect as possible, with a view of making an equitable provision for the public exigencies, which should affect all parts of the union with the greatest degree of impartiality. mr. sherman observed, that when congress applied to the several states for the five per cent. impost, they judged it would enable them to extinguish the national debt in twenty-five years; but, in addition to this fund, they expected to make annual requisitions on the states, for one and a half million of dollars at least; so that gentlemen could not expect the whole to be paid by this single fund in a short time. he wished a limitation to the law in general terms, such as until the debt, foreign and domestic, is discharged. he thought a short term would made an unfavorable impression upon the minds of the public creditors, and tend in a great measure to cloud the happy prospects that began to brighten the political hemisphere of this country. mr. gerry expressed an intention of calling the yeas and nays if he was supported, because he thought it a question in which the essential interests of the people were deeply involved. mr. lawrence said, he held his present opinion upon the purest principles of patriotism, and an ardent love for his country's happiness. he had no objection to the yeas and nays being taken, as he was not inclined to disguise his sentiments. mr. page was glad the yeas and nays were called, as it would give gentlemen an opportunity of showing to their constituents their approbation of a measure calculated to secure the blessings of liberty to themselves and posterity. several members rose to speak on this question, when mr. ames moved the adjournment, fearing gentlemen would grow warm upon the question. whereupon, the house adjourned. saturday, may . mr. seney, from maryland, presented to the house an act of the legislature of that state, offering to the acceptance of congress ten miles square of territory, in any part of the said state, for the seat of the federal government, which was read and ordered to lie on the table. _duties on imports._ the house resumed the consideration of the amendment proposed yesterday to the bill for laying a duty on goods, wares, and merchandises imported into the united states, and the said amendment read as follows: "and be it further enacted by the authority aforesaid, that this act shall be in force until the ---- day of ----, and from thence until the end of the next session of congress which shall happen thereafter." the question was called for, and mr. lawrence required the ayes and noes. mr. jackson wished to say a few words on the bill. the ayes and noes being called for, he conceived it his duty to state his reasons for his vote. he declared himself to be in favor of the limitation, for the reasons offered by honorable gentlemen yesterday. he said he had as ardent a desire to re-establish public credit, and place it on a good footing, as any member on that floor, yet he did not think making this law perpetual would have that tendency. he had no doubt but every subsequent legislature would be equally desirous of doing justice to the creditors of the union, and he therefore felt no uneasiness in leaving such provision to be made by them. if the next legislature were disposed to violate the public honor, would the law now under consideration stand in their way? for his part, he could not conceive it an insuperable bar. he believed there was not a member who liked every part of the bill. under these circumstances, what was to be expected but complaints from the people, and a consequent repeal of the bill? he did not wish to insinuate that the senate would be so depraved as to oppose the public voice, but they might misunderstand it; they were a permanent body, and might be more inclined to support what they considered the honor of the government than the convenience of the people. the house of representatives appeared to him to be the body best calculated to know and feel the interests of their immediate constituents; they ought, therefore, to preserve the power of redressing grievances, and not give too much into the hands of the senate. he acknowledged the claims which those that fought and bled for their country had upon the justice of congress; but he did not believe that class of citizens would complain or murmur at this house for keeping the purse strings in their hands, when it was considered necessary to the security and happiness of the people. mr. white did not see the necessity of calling the yeas and nays: he thought the measure was intended to have one of these two objects, either to show one part of the house had mistaken the interest of their country, and ought to be held up to posterity, in order that their memories may be charged with their want of knowledge; or that there is a part of this house who think themselves more wise and patriotic than the majority. he never called the yeas and nays in his life, nor believed he ever should; but he was willing to have his vote appear, in all cases, when gentlemen thought proper to perpetuate the decision of the house in that way. on this occasion he would vote in favor of the amendment, and would endeavor to answer the objections, which, if well founded, would be a subject of great uneasiness in his mind, considering how he intended to give his vote. he would now proceed to examine, whether rendering this law perpetual would be a wise and prudent measure. it had been well observed by the gentleman from georgia, (mr. jackson,) that every part of the law would bear harder on some states than on others; perhaps there was no state in the union which would not be in some degree dissatisfied. he could perceive, by the sentiments of gentlemen in this house, that the burthens would be peculiarly felt; under these impressions, gentlemen have expressed themselves more warmly than perhaps they ought. there had been predictions of the most dangerous consequences of high duties, which he would not repeat; if these dangers were not imaginary, would it be prudent in the house, to risk these consequences, and make these dangers unavoidable by rendering the law perpetual. much pains had been taken to impose the burthens as equally as possible. if the duty on molasses bears hard upon one state, the tonnage duty would bear equally so upon others. but still it is probable, that there are unequal pressures laid by the bill, which experience alone could enable the legislature to alter to the satisfaction of all parties. the system was great, complex, and comprehensive; it embraces commerce, manufactures, agriculture, finance, and, in short, every thing in which a nation can be concerned. will it be prudent, then, under our present disadvantages, and without information, to enact a law affecting the highest interests of the people, which can never be repealed but by the consent of three independent bodies? gentlemen have told us, that no valuable purpose can be answered by making the law temporary; now, he thought a valuable purpose could be answered by it. the two houses of congress, with the qualified negative of the president, formed the legislative power of the united states; they are distinct powers to be exercised by both branches of the legislature. the house had been told, on a former occasion, that the senate possessed greater powers than the representatives. he admitted that, in some instances, they had greater powers; but with respect to revenue matters, they certainly had less, and very properly so. shall we then give up to a body, who has already a superiority over us, those superior powers which we possess relative to revenue? a perpetual system would give the senate greater advantages than constitutionally they ought to enjoy. he thought it of little consequence for the house to possess the right of originating money bills, if those money bills were made perpetual. the exercise of this right would be lost, and he thought it necessary that every part of government should feel itself dependent upon the people. we have been told, with truth, that the senate are a virtuous body; they are so, and he hoped would remain so, for ages yet to come, nay for ever; and, in his legislative capacity, he would act upon no other supposition. but still it ought to be remembered, that they would always be men, and liable to all the errors, frailties, and infirmities, with the rest of their fellow-mortals; besides, they were constituted in some measure for purposes to which the other branch was incompetent; while this house was constituted for purposes for which the senate is unequal. it is a well-grounded republican maxim, that taxation and representation should depend each on the other. the people should be taxed only by representatives chosen for that purpose. this principle was written in the hearts of our british ancestors; it had been maintained by the best blood of our citizens, and he hoped it would descend with the fullest energy to our posterity. what, said he, are we about to do? a great branch of revenue, indeed the only branch, to which an application is now proper, or expected by the people, is about to be put out of our hands for ever; for it would not be in the power of this house, or any future house, to annihilate those funds without the consent of the senate and the concurrence of the president. now, the senate are not an equal representation of the people; in that body the states have equal numbers, while, in this house, the representation is proportioned to their population. delaware sends one, georgia three, and virginia ten. is it possible, in the nature of things, that two senators can be as well acquainted with the feelings and interest of the people of virginia, as ten men selected from among them, and taken from the several parts of the state? will the people be satisfied to have that body able to continue a revenue system which their immediate representatives think oppressive, or perhaps unnecessary? certainly they would not; whatever the wisdom and virtue of the senate may be, he was convinced they were not competent to those peculiar objects for which a just representation was absolutely necessary. the senate, it is true, is not a house of lords; they do not possess any properties materially distinguishing them from the members of the house of representatives; but, though the distinction is not so striking in the one case as in the other, yet it was nevertheless real. the house of lords is created by the king, and is a permanent body; the senate is chosen by the state legislatures, and though the individuals have not a permanency in office, yet the body never ceases to exist. these circumstances, in the constitution of the senate, afforded a powerful objection to the new system of government, and the people would never have adopted it, had they supposed that the powers of this body were unlimited in continuing a system of taxation, which had at any time met the approbation of their particular representatives.[ ] mr. tucker did not think it necessary to give his opinion otherwise than by his vote, because gentlemen, who had yesterday delivered their sentiments in favor of the clause, had anticipated what he had to say. but as he found himself influenced by the call for the ayes and noes on this question, he should be induced to state some of his reasons in favor of the amendment. he said, he was glad the ayes and noes had been called, and if it had not been done by any other gentleman, he should have conceived himself bound to have done it; because he did not think himself at liberty, but on very particular occasions, to make a law perpetual. he wished to see a doctrine established, never to pass a law without limitation, unless justified by some extraordinary circumstances. nothing, he thought, could ever justify such an act but the immutability of the object, and the absolute necessity and simplicity of every thing relating to it. if the house passed a perpetual revenue law, which had not an immutable object, they would abridge their own power, and destroy one of the great privileges of the people. every bill of this nature, more or less, narrows the powers of this house, and throws it into the hands of the executive and a minority of the senate; for it is to be considered, that whenever we pass a bill on any subject, every matter in that bill contained is given up to the executive and one-third of the senators, so much so that it is out of the power of this house, even with a unanimous vote, to recover any part of it. mr. sylvester was in favor of the limitation clause. a good deal had been said in the house respecting the jarring interests of the several states. it had been confessed on all hands, that this was an experimental law: he viewed it as such, and expected, in the course of a few years, the legislature would be able to discover the errors of this day. but what advantage can result from their knowledge, if they have not power to make the necessary alterations, or to build up a new system more perfect than the old? he had examined the annals of history, but was unable to discover that any nation had ever established a perpetual revenue law. he imagined gentlemen would admit these reasons to be sufficient to warrant the vote they were about to give. mr. sinnickson did not expect this was to be a perpetual law, incapable of alteration; but he wished to see it a permanent system. the idea of a temporary system was long ago said to be out of the contemplation of the house. he should only observe, in addition to this, that our credit depended essentially upon what should be done at this time. he thought if the revenue existed merely upon the breath of the legislature, for one or two years at a time, we should never attain that object. he thought that the public good required something substantial to be done in favor of those who had lent the public money in the hour of distress. mr. boudinot thought himself obliged to say a few words more, in order to justify the part he should take in the division of the house on this question. he conceived the manner in which the motion was brought before the house, after the bill was supposed to be gone through, did not give such opportunity for the members to consider the subject as its importance seemed to require, and which might have been had if it had been brought forward at an earlier period. if, said he, we are to have the measures of the parliament of great britain hung about our necks in all our public proceedings, and observations from their practice perpetually sounding in our ears, that practice ought to be defined and established. he believed that in the whole volumes of the statute law, there was not one single revenue act to be found with a limitation. he believed that the revenue laws, passed fifty, sixty, eighty, and near a hundred years ago, in that kingdom, existed at the present moment. we have long seen and been convinced of the infirmities of the former confederation, and shall we now rivet those infirmities upon the present constitution? are we never to stand upon a certain and solid foundation? is not our public credit totally gone? has not experience convinced us that the loss of it would have been our total destruction, if the generous exertions we have lately made had not revived some degree of confidence in our future measures? are we not so deeply in debt as to give us reason to believe that it will require many years to emancipate ourselves? if this is the case, will a revenue law for one or two years bring that relief which is expected? will this prevent an increase of the public debt? will it restore value to the evidences of that debt held by our creditors? he would ask any man, whether, if the united states were in the situation in which they were last war, he would be induced to lend money upon a temporary and inadequate fund provided for two years? he believed the answer would be in the negative. mr. madison withdrew his motion in order to introduce another, which he hoped would reconcile both sides of the house. he joined those gentlemen who opposed the clause in thinking that one or two years would be a period insufficient to answer the purposes in contemplation. if the house agree to the clause he would substitute for the one just withdrawn, he would move to fill the blank with a more distant day. his motion was, that this act shall not continue in force after the ---- day of ---- unless otherwise provided in the act for the appropriation of the revenue. mr. fitzsimons seconded the motion. mr. sherman liked this motion better than the other. although he was in favor of leaving the law at large, he would vote for this clause, if the blanks were filled up with a sufficient time to accomplish those objects which the government had in view in providing revenue. mr. ames thought the question would recur when the appropriation or collecting bill came before them; he would rather, for his own part, decide the question at this moment, than consume the time of the house with another debate. besides the house was not in possession of an act for appropriating the revenue; such a measure might never be agreed to; therefore he hoped the decision would take place at this time rather than be evaded. mr. fitzsimons was of opinion, that this revenue ought to be appropriated to the payment of the public debts; what were the views of other gentlemen he could not say. he was nevertheless in favor of limiting the law, and that upon constitutional principles, though he wished it commensurate to its object. gentlemen had said a great deal respecting the imperfection of the system, that it was the effect of compromise; but nevertheless, he thought it as free from defects as it was possible a revenue system could be formed with such materials as the house possessed; but if it was imperfect, he did not see the difficulties some gentlemen mentioned, in altering and amending it when experience shall have pointed out its defects. mr. boudinot acquiesced in the motion now brought forward for the sake of accommodation, although he thought the bill would stand better without any limitation clause whatever. mr. page was against the latter part of this clause. it had been justly said, that the bill would be oppressive; but, from the necessity of the times, the people will submit to it. shall we not let them see the end of their burthen in the law itself? are they to look into another bill for that purpose? perhaps after the senate have agreed to this act, they may oppose the limitation in the subsequent one; they may insist upon having this in perpetuity, and then the object which the house have in view will be defeated. mr. smith, of south carolina, moved a division of the question. mr. lee wished to strike out that part of the motion which related to the exception. mr. livermore seconded mr. lee. the question was put, and that part of the clause lost. the question now stood as originally introduced to the house. the previous question was then demanded by five members: shall the main question be now put? and on the question, shall the main question be now put? it was resolved in the affirmative. and then the main question being put, that the house do agree to the amendment proposed to the said bill, it was resolved in the affirmative--ayes , noes . the ayes and noes being called for by one-fifth of the members present: those who voted in the affirmative, are, messrs. abraham baldwin, egbert benson, theodorick bland, �danus burke, daniel carroll, isaac coles, benjamin contee, thomas fitzsimons, william floyd, george gale, elbridge gerry, nicholas gilman, benjamin goodhue, samuel griffin, jonathan grout, john hathorn, daniel heister, benjamin huntington, james jackson, richard bland lee, george leonard, samuel livermore, james madison, junior, andrew moore, peter muhlenberg, john page, josiah parker, george partridge, jeremiah van rensselaer, joshua seney, thomas scott, william smith, william smith, of south carolina, jonathan sturgis, peter sylvester, jonathan trumbull, thos. tudor tucker, john vining, jeremiah wadsworth, alexander white, and henry wynkoop. those who voted in the negative, are, messrs. fisher ames, elias boudinot, lambert cadwalader, george clymer, john lawrence, roger sherman, thomas sinnickson, and george thatcher. the clause being added, it was agreed to fill the blank so as to read the first day of june, . _ordered_, that the said bill, with the amendments, be engrossed, and read the third time to-day.[ ] monday, may . _resolved_, that leave be given to bring in a bill concerning the importation of certain persons into the united states, prior to the year , and that mr. parker, mr. sinnickson, and mr. muhlenberg, do prepare and bring in the same. tuesday, may . _executive departments._ on motion of mr. boudinot, the house resolved itself into a committee of the whole house on the state of the union. mr. trumbull in the chair. mr. boudinot.--i rise, mr. chairman, with diffidence, to introduce a subject to the consideration of the committee, which i had hopes would have been brought forward by an abler hand; the pressing necessity of it must alone be my excuse. the great executive departments which were in existence under the late confederation, are now at an end, at least so far as not to be able to conduct the business of the united states. if we take up the present constitution, we shall find it contemplates departments of an executive nature in aid of the president: it then remains for us to carry this intention into effect, which i take it will be best done by settling principles for organizing them in this place, and afterwards appoint a select committee to bring in a bill for the same. i need say little to convince gentlemen of the necessity which presses us into a pursuit of this measure. they know that our national debt is considerable; the interest on our foreign loans, and the instalments due, amount to two millions of dollars. this arrearage, together with the domestic debt, is of great magnitude, and it will be attended with the most dreadful consequences to let these affairs run into confusion and ruin, for want of proper regulations to keep them in order. i shall move the committee therefore to come to some such resolution as this: that an officer be established for the management of the finances of the united states, at the head of which shall be an officer to be denominated the secretary of finance. i am not tenacious of the style, perhaps some other may be proper, but the object i have in view is to establish the department; after which we may go on to narrate the duties of the officer, and accommodate the name to the acts he is to perform. the departments under the late constitution are not to be models for us to form ours upon by reason of the essential change which has taken place in the government, and the new distribution of legislative, executive, and judicial powers. if gentlemen then agree with me so far, i shall proceed to restrain the secretary of finance, and all persons under him, from being concerned in trade or commerce, and make it his duty to superintend the treasury and the finances of the united states, examine the public debts and engagements, inspect the collection and expenditure of the revenue, and to form and digest plans for its improvement. there may be other duties which gentlemen may add, as i do not pretend to have perfectly enumerated them all. after this point is settled, we may then go to the consideration of the war department, and the department of foreign affairs; but, for the present, i would wish to confine ourselves to the department of finance. mr. benson wished the committee to consider what he judged to be a previous question, namely, how many departments there should be established? he approved of the division mentioned by the gentleman; but would, with his leave, move that there be established in aid of the chief magistrate, three executive departments, to be severally denominated the department of foreign affairs, treasury, and war. after determining this question, if it was a proper division, the committee might proceed to enumerate the duties which should be attached to each. mr. boudinot said, he could apologize for not bringing the business on in another way. it seemed to be a settled point in the house that a committee of the whole was the proper place for determining principles before they were sent elsewhere; he had therefore adopted that mode on the present occasion, though his own judgment would incline him to pursue that last mentioned by the gentleman from virginia, (mr. bland.) he conceived the necessity of having such an office was indisputable; the government could not be carried on without it; but there may be a question with respect to the mode in which the business of the office shall be conducted; there may also be a question respecting the constitution of it, but none with respect to the establishment of either of the three departments he had mentioned. mr. benson said, his motion was founded upon the constitutional division of these powers; the constitution contemplated them, because it gave the president the right of requiring the opinion of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices. if gentlemen were inclined to waive the determination for the present, he had no objection; it was certainly a subject of great importance, and required time for consideration. mr. vining thought the gentleman should have added another department, viz: the home department. the territorial possessions of the united states, and the domestic affairs, would be objects of the greatest magnitude, and he suspected would render it essentially requisite to establish such a one. mr. boudinot wished to confine the question to the department of finance. a motion was made by mr. bland for the committee's rising. mr. madison hoped they would not rise until the principles were settled. he thought it much better to determine the outlines of all business in a committee of the whole. he was satisfied it would be found, on experience, to shorten their deliberations. if the gentlemen who had offered motions to the committee would withdraw them, he would offer one which he judged likely to embrace the intentions of both gentlemen. mr. benson withdrew his motion, and mr. madison moved, that it is the opinion of this committee, that there shall be established an executive department, to be denominated the department of foreign affairs, at the head of which there shall be an officer, to be called the secretary to the department of foreign affairs, who shall be appointed by the president, by and with the advice and consent of the senate; and to be removable by the president. that there shall be a treasury department, &c. that there shall be a war department, &c. mr. vining seconded the motion, and offered to amend it, by adding the domestic department, _mutatis mutandis_. he said this department, in his opinion, was of absolute necessity, more requisite than either of the other three, except the department of finance; the present and increasing duties of such a department will oblige them to make the establishment. mr. livermore was not prepared to decide on the question even as now brought forward, nor did he see a reason why the department of foreign affairs was placed at the head of the list. he thought the treasury department of more importance, and consequently deserved the precedence. as to the domestic department just mentioned by the gentleman from delaware, he thought its duties might be blended with the others, and thereby save the united states the expense of one grand department. if the gentleman, therefore, would wait to see what were the duties assigned to them severally, he would be able to judge respecting his motion with greater propriety. mr. vining withdrew his motion for the present. and the committee agreed to the establishment of the department of foreign affairs, and placing at the head thereof an officer to be called the secretary of foreign affairs; but when they came to the mode of appointing the officer, mr. smith (of south carolina) moved to strike out the words "who shall be appointed by the president, by and with the advice and consent of the senate." he conceived the words to be unnecessary; besides, it looked as if they were conferring power, which was not the case, for the constitution had expressly given the power of appointment in the words there used. he also objected to the subsequent part of this paragraph, because it declared the president alone to have the power of removal. mr. page saw no impropriety in passing an act to carry into execution the views of the constitution, and therefore had no objection to repeat those words in the resolution. he thought if the committee stopped there, they would be under no difficulty respecting the propriety of their measure, but if they went further they might meet with considerable embarrassment. mr. madison remarked, that as there was a discretionary power in the legislature to give the privilege to the president alone of appointing inferior officers, there could be no injury in declaring in the resolution the constitutional mode of appointing the heads of departments; however, if gentlemen were uneasy, he would not object to strike it out. mr. lee thought this officer was an inferior officer; the president was the great and responsible officer of the government; this was only to aid him in performing his executive duties; hence he conceived the power of appointing to be in the gift of the legislature, and therefore the words were proper. mr. smith (of south carolina.)--this officer is at the head of a department, and one of those who are to advise the president; the inferior officers mentioned in the constitution are clerks and other subordinate persons. the words are only a repetition of the words in the constitution, and are consequently superfluous. the question was taken on striking out those words, and carried in the affirmative. the committee proceeded to the discussion of the power of the president to remove this officer. mr. smith said, he had doubts whether the officer could be removed by the president. he apprehended he could only be removed by an impeachment before the senate, and that, being once in office, he must remain there until convicted upon impeachment. he wished gentlemen would consider this point well before they decided it. mr. madison did not concur with the gentleman in his interpretation of the constitution. what, said he, would be the consequence of such construction? it would in effect establish every officer of the government on the firm tenure of good behavior; not the heads of departments only, but all the inferior officers of those departments, would hold their offices during good behavior, and that to be judged of by one branch of the legislature only on the impeachment of the other. if the constitution means this by its declarations to be the case, we must submit; but i should lament it as a fatal error interwoven in the system, and one that would ultimately prove its destruction. i think the inference would not arise from a fair construction of the words of that instrument. it is very possible that an officer who may not incur the displeasure of the president, may be guilty of actions that ought to forfeit his place. the power of this house may reach him by the means of an impeachment, and he may be removed even against the will of the president; so that the declaration in the constitution was intended as a supplemental security for the good behavior of the public officers. it is possible the case i have stated may happen. indeed, it may, perhaps, on some occasion, be found necessary to impeach the president himself; surely, therefore, it may happen to a subordinate officer, whose bad actions may be connived at or overlooked by the president. hence the people have an additional security in this constitutional provision. i think it absolutely necessary that the president should have the power of removing from office; it will make him, in a peculiar manner, responsible for their conduct, and subject him to impeachment himself, if he suffers them to perpetrate with impunity high crimes or misdemeanors against the united states, or neglects to superintend their conduct, so as to check their excesses. on the constitutionality of the declaration i have no manner of doubt. mr. benson.--if we refer to the constitution for light on this subject, it will appear evident that the objection is not well founded. the objection is this, that an officer ought not to be removed but by impeachment; then every officer is appointed during good behavior. now, the constitution expressly declares, that the judges, both of the supreme and inferior courts, shall hold their offices during good behavior. if it is declared, that they are to hold their offices by this particular tenure, it follows that the other officers of the government should hold them only at pleasure. he thought this an important question, and one in which they were obliged to take the constitution by construction. for although it detailed the mode of appointing to office, it was not explicit as to the supersedure; this clause, therefore, would be a mere declaration of the legislative construction on this point. he thought the importance and necessity of making the declaration, that the chief magistrate might supersede any civil officer was evident, and he should therefore vote in favor of the clause as it stood. mr. vining said, there were no negative words in the constitution to preclude the president from the exercise of this power; but there was a strong presumption that he was invested with it: because it was declared, that all executive power should be vested in him, except in cases where it is otherwise qualified; as, for example, he could not fully exercise his executive power in making treaties, unless with the advice and consent of the senate--the same in appointing to office. he viewed the power of removal, by impeachment, as a supplementary security to the people against the continuance of improper persons in office; but it did not consist with the nature of things, that this should be the only mode of removal; it was attended with circumstances that would render it insufficient to secure the public safety, which was a primary object in every government. witness a transatlantic instance of its incompetency--he meant the famous case of mr. hastings. with what difficulty was that prosecution carried on! what a length of time did it take to determine! what is to be done while the impeachment is depending? for, according to the ideas of the gentleman from south carolina, (mr. smith,) he cannot be removed but on conviction. if he cannot be removed, i should suppose he cannot be suspended; and what security have the people against the machinations of a bad man in office? he had no doubt but the constitution gave this power to the president; but if doubts were entertained, he thought it prudent to make a legislative declaration of the sentiments of congress on this point. he was therefore in favor of the clause. mr. bland thought the power given by the constitution to the senate, respecting the appointment to office, would be rendered almost nugatory if the president had the power of removal. if the first nomination of the president should be disapproved by the senate, and the second agreed to, he had nothing to do but wait the adjournment of congress, and then fill the vacancy with his favorite; who, by thus getting into the possession of the office, would have a considerable chance of permanency in it. he thought it consistent with the nature of things, that the power which appointed should remove; and would not object to a declaration in the resolution, if the words were added, that the president shall remove from office, by and with the advice and consent of the senate. he agreed that the removal by impeachment was a supplementary aid favorable to the people; but he was clearly of opinion, that the same power that appointed had, or ought to have, the power of removal. mr. jackson wished the motion had been referred to a sub-committee to digest: it seemed to him they were building the house before the plan was drawn. he wished to see the system reduced to writing, that he might leisurely judge of the necessity and propriety of each office and its particular duties. with respect to the question before the house he was of opinion that if the house had the power of removal by the constitution, they could not give it out of their hands; because every power recognized by the constitution must remain where it was placed by that instrument. but the words in the constitution declare, in positive terms, that all civil officers shall be removed from office on impeachment for, and conviction of, high crimes and misdemeanors; and however long it may take to decide, in this way it must be done. he did not think the case of mr. hastings ought to be brought forward as a precedent for conducting such business in the united states. he believed, whenever an impeachment was brought before the senate, they would proceed with all imaginable speed to its termination. he should, in case of impeachment, be willing to go so far as to give the power of suspension to the president, and he thought this all the security which the public safety required; it would prevent the party from doing further mischief. he agreed with the gentleman in the general principle, that the body who appointed ought to have the power of removal, as the body which enacts laws can repeal them; but if the power is deposited in any particular department by the constitution, it is out of the power of the house to alter it. mr. madison did not conceive it was a proper construction of the constitution to say, that there was no other mode of removing from office than that by impeachment; he believed this, as applied to the judges, might be the case, but he could never imagine it extended in the manner which gentlemen contended for. he believed they would not assert, that any part of the constitution declared, that the only way to remove should be by impeachment; the contrary might be inferred, because congress may establish offices by law; therefore, most certainly, it is in the discretion of the legislature to say upon what terms the office shall be held, either during good behavior or during pleasure. under this construction, the principles of the constitution would be reconcilable in every part; but under that of the gentleman from south carolina, it would be incongruous and faulty. he wondered how the gentleman from georgia (mr. jackson) would reconcile his principles so far as to permit the president to suspend the officer. he begged his colleague (mr. bland) to consider the inconvenience his doctrine would occasion, by keeping the senate constantly sitting, in order to give their assent to the removal of an officer; they might see there would be a constant probability of the senate being called upon to exercise this power, consequently they could not be a moment absent. now, he did not believe the constitution imposed any such duty upon them; why, then, said he, shall we enjoin it, especially at such an expense of the public treasure? mr. boudinot would by no means infringe the constitution by any act of his, for if he thought this motion would lead the committee beyond the powers assigned to the legislature, he would give it a decided negative; but, on an impartial examination of that instrument, he could not see the least foundation for such an objection; however, he was glad the question had come forward, because he wished to give a legislative construction to this part of the constitution. the gentlemen who denied the power of the president to remove from office, founded their opinion upon the fourth section of the second article of the constitution, where it is declared, that all officers shall be removed from office on impeachment for, and conviction of, treason or bribery. if their construction is admissible, and no officer whatever is to be removed in any other way than by impeachment, we shall be in a deplorable situation indeed. consider the extent of the united states, and the difficulty of conducting a prosecution against an officer, who, with the witnesses, resides a thousand miles from the seat of government. but suppose the officer should, by sickness, or some other accident, be rendered incapable of performing the functions of the office, must he be continued? and yet it is to be apprehended, that such a disability would not furnish any good ground for impeachment; it could not be laid as treason or bribery, nor perhaps as a high crime or misdemeanor. would gentlemen narrow the operation of the constitution in this manner, and render it impossible to be executed? mr. white thought no office under the government was to be held during pleasure, except those which are to be constituted by law; but all the heads of departments are to be appointed by the president, by and with the advice and consent of the senate. he conceived that, in all cases, the party who appointed ought to judge of the removal, except in those cases which by the constitution are excepted; and in those cases impeachment and conviction are the only mode by which they can be removed. mr. thatcher asked, why the judges were particularly mentioned in the constitution as holding their offices during good behavior, if it was not supposed that, without this express declaration in their favor, they, in common with all other officers not immediately chosen by the state legislatures and the people, would hold them during pleasure? the clause respecting impeachments was particularly calculated for removing unworthy officers of the other description. holding this construction of the constitution to be right, he was in favor of the clause as it stood. mr. sylvester thought the constitution ought to have a liberal construction, and therefore was of opinion that the clause relative to the removal by impeachment was intended as a check upon the president, as already mentioned by some gentlemen, and to secure to the people, by means of their representatives, a constitutional mode of obtaining justice against peculators and defaulters in office, who might be protected by the persons appointing them. he apprehended the doctrine held out by the gentleman from south carolina would involve the government in great difficulties, if not in ruin, and he did not see it was a necessary construction of the constitution. why, then, should the house search for a meaning, to make the constitution inconsistent with itself, when a more rational one is at hand? he, however, inclined at present to the sentiments of the gentleman from virginia, (mr. bland,) who thought the senate ought to be joined with the president in the removal, as they were joined by the constitution in the appointment to office. mr. goodhue was decidedly against combining the senate in this business. he wished to make the president as responsible as possible for the conduct of the officers who were to execute the duties of his own branch of the government. if the removal and appointment were placed in the hands of a numerous body, the responsibility would be lessened. he admitted there was a propriety in allowing the senate to advise the president in the choice of officers; this the constitution had ordained for wise purposes; but there could be no real advantage arising from the concurrence of the senate to the removal, but great disadvantages. it might beget faction and party, which would prevent the senate from paying proper attention to the public business. upon the whole, he concluded the community would be served by the best men when the senate concurred with the president in the appointment; but if any oversight was committed, it could best be corrected by the superintending agent. it was the peculiar duty of the president to watch over the executive officers; but of what avail would be his inspection, unless he had a power to correct the abuses he might discover. mr. gerry.--the constitution provides for the appointment of the public officers in this manner: the president shall nominate, and by and with the advice and consent of the senate, shall appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the united states, whose appointments are not herein otherwise provided for, and which shall be established by law. now, if there be no other clause respecting the appointment, i shall be glad to see how the heads of departments are to be removed by the president alone. what clause is it that gives this power in express terms? i believe there is none such. if there is a power of removal, besides that by impeachment, it must vest somewhere. it must vest in the president, or in the president and senate, or in the president, senate, and house of representatives. now, there is no clause which expressly vests it in the president. i believe no gentleman contends it is in this house, because that would be that mingling of the executive and legislative powers gentlemen deprecate. i presume, then, gentlemen will grant, that if there is such a power, it vests with the president, by and with the advice and consent of the senate, who are the body that appoints. i think we ought to be cautious how we step in between the president and the senate, to abridge the power of the one, or increase the other. if the power of removal vests where i suppose, we, by this declaration, undertake to transfer it to the president alone. it has been mentioned, that it is proper to give this power to the president, in order to make him more fully responsible for this officer. i am for supporting the president to the utmost of my power, and making him as responsible as possible. i would therefore vest every gift of office, in the power of the legislature, in the president alone; but i cannot think we ought to attempt to give him authority to remove from office, in cases where the constitution has placed it in other hands. mr. livermore considered this as a constitutional question, and was of opinion, that the same power which appointed an officer, had the right of removal also, unless it was restrained by an express declaration to the contrary. as the president, by and with the advice and consent of the senate, is empowered to appoint ambassadors, certainly they have a right to remove them and appoint others. in the case of the judges, they must be appointed for life, or during good behavior. he had no idea, that it could ever enter into the heart of any man living, that all officers appointed under the constitution were to have a perpetuity in office. the judges themselves would not have had this right, if it had not been expressly given by the constitution, but would be removable in like manner with ambassadors, other public ministers, and consuls. he took it, therefore, in the present case, that the president and the senate would have the power of removing the secretary of foreign affairs. the only question, therefore, which appears to be before the committee is, whether we shall give this power to the president alone? and with that he thought they had nothing to do. he supposed, if the clause was left out, the president and the senate would proceed, as directed by the constitution, to appoint the officer; and hereafter, if they judged it necessary, would remove him; but if they neglected to do so, when it was necessary, by reason of his misdemeanors, this house would impeach him, and so get rid of him on conviction. mr. bland.--it seems to be agreed on all hands, that there does exist a power of removal; the contrary doctrine would be a solecism in government. if an officer embezzles the public money, or neglects or refuses to do the duties of his appointment, can it be supposed there is no way of getting rid of such a person? he was certain it was essentially necessary such a power should be lodged somewhere, or it would be impossible to carry the government into execution. their inquiries were therefore reduced to this point: does it reside, agreeably to the constitution, in the president, or in the president and the senate? the constitution declares, that the president and the senate shall appoint, and it naturally follows, that the power which appoints shall remove also. what would be the consequence of the removal by the president alone, he had already mentioned, and need not repeat. a new president might, by turning out the great officers, bring about a change of the ministry, and throw the affairs of the union into disorder: would not this, in fact, make the president a monarch, and give him absolute power over all the great departments of government? it signifies nothing that the senate have a check over the appointment, because he can remove, and tire out the good disposition of the senate. mr. clymer said, the power of removal was an executive power, and as such belonged to the president alone, by the express words of the constitution: "the executive power shall be vested in a president of the united states of america." the senate were not an executive body; they were a legislative one. it was true, in some instances, they held a qualified check over the executive power, but that was in consequence of an express declaration in the constitution; without such declaration, they would not have been called upon for advice and consent in the case of appointment. why, then, shall we extend their power to control the removal which is naturally in the executive, unless it is likewise expressly declared in the constitution? the question on adding the words "by and with the advice and consent of the senate," as moved by mr. bland, was put and lost. the question was now taken, and carried by a considerable majority, in favor of declaring the power of removal to be in the president. wednesday, may . _treasury department._ the house again resolved itself into a committee of the whole on the state of the union, mr. trumbull in the chair. the resolution for establishing the treasury department being under consideration: mr. gerry.--we are now called upon, mr. speaker, to deliberate, whether we shall place this all-important department in the hands of a single individual, or in a board of commissioners. i presume the gentleman, who has brought forward this string of propositions, means, that this officer shall have power to examine into the state of the public debt and expenses, to receive and disburse the revenue, to devise plans for its improvement and expansion, and, in short, to superintend and direct the receipts and expenditure, and govern the finances of the united states; having under him officers to do the subordinate business of registering and recording his transactions, and a comptroller to control his operations with respect to the accounts and vouchers. before this committee proceed one step farther in this business, they ought seriously to consider the situation of this country, and what will be the consequence of appointing such an officer; consider how it will affect the public in general, the revenue, and even the government itself. he is declared, in the list of duties assigned him in the paper read yesterday by the gentleman from new york, (mr. benson,) to have the power to form and digest the accounts, and to control all the officers of the department. it is evident, that we put his integrity to the trial, by such an arrangement. if he is disposed to embezzle the public money, it will be out of the power of the executive itself to check or control him in his nefarious practices. the extension of his business to the collectors of at least fifty seaports, (over whom the naval officer can have no control, with respect to the money received,) will furnish abundant opportunities for peculation. in addition to the moneys arising from the impost, he may have to do with large sums derived from other quarters, from the sale of the vacant lands, the money of defaulters now due to the united states, and the revenue arising from taxes and excises. admit these innumerable opportunities for defrauding the revenue, without check or control, and it is next to impossible he should remain unsullied in his reputation, or innoxious with respect to misapplying his trust. other great opportunities may arise in case of an anticipation of the public revenue; or, if it is necessary to prevent the injury which a rapid depreciation of the securities would occasion to public credit, he may be employed in purchasing them, in order to advance the credit of the union. but what is to prevent the greatest imposition in this business? charging them to the public at their nominal value, it is not in the power of the government to check this species of speculation; what then is the situation of your officer? he must subject himself to suspicion: indeed, it is as much as his reputation is worth to come into a place of this kind; he can hardly preserve his integrity. his honor, credit, and character, must inevitably be injured. he cannot prove himself innocent of the suspicion, because it is the negative side of the question. he can offer nothing more in his defence than a mere denial of the crime. there is another point which ought to be well considered: this officer is to digest and form the accounts. he can consequently give the business such complexity, as to render it impossible to detect his impositions; and as the inferior officers, who might discover the fraud, are to be appointed by the principal, will they not consequently be men after his own heart? taking these circumstances together, it must be very disagreeable to the person appointed, provided he is an honest, upright man; it will be disagreeable also to the people of the union, who will always have reason to suspect, that a partiality is shown to the collectors, and other officers of the state to which he belonged. this has absolutely been the case, and was productive of very great dissatisfaction. i would be glad to know of the gentlemen, who are for vesting these powers in a single person, where they will find the man who is capable of performing the duties of a financier? for it is not the mere calling him a financier, and giving him a large salary, that will enable him to perform his functions in such a manner as to give satisfaction. we had once a gentleman who filled such a department, and i believe the only one in the united states who had knowledge and abilities by any means competent to the business; but that gentleman is now employed in another branch of the government, and cannot be called to this trust. during the late war, congress thinking it necessary to employ a financier, were led to inquire for a proper character to fill such an office; but not being able to discover such a one in this country, in whose abilities they had sufficient confidence, they wrote to doctor price a letter, to induce him to come to america, and accept of an appointment under them, for the superintendence of their finances. he wrote, in answer, that he felt with gratitude the honor which they had done him by their application, and signified, that he was desirous of rendering every service in his power to aid the glorious cause in which america was embarked; but, from his advanced situation in life, and infirmities of body, he was under the necessity of declining. this circumstance serves to show how difficult it is to get a proper person for so arduous an undertaking. but it appears to me, that if we could fix upon a person equal to the office, involving him in forming accounts, and such trifling business, would divert his attention from the more important duties he is called upon to perform. the proper business of finance, i take it, ought to be to consider of the means to improve the revenue, and introducing economy into the expenditures; to recommend general systems of finance, without having any thing to do with the actual administration of them, because, if he engages in the executive business, we shall be deprived of his talents in more important concerns. if it should be granted that there is a person of abilities to be found, adequate to the duties of the office, i want to know where the advantage arises of appointing him alone in preference to a board? if you have commissioners, you have an opportunity of taking one from each grand division of the united states, namely, the eastern, the middle, and southern districts. if this person is a member of the board, is it not evident you will have every advantage from his abilities in such a situation, as you would if he were placed in office without control? if he was possessed of such genius, he could employ it more usefully as a commissioner of the board of treasury, than when left to perform all the drudgery of the executive part; because while his fine imagination was busied in reducing a chaos to a beautiful system, his colleagues might perform those parts which required less elevation of thought; by dividing the burthen, the business would be done with more regularity and facility. surely no advantage to the public would arise from giving him the sole management of the business, but much inconvenience might; besides, it must unavoidably, as i said before, subject him to suspicions unfavorable to his reputation. this has absolutely been realized; it is not a mere chimera, a matter of speculation. we have had a board of treasury, and we have had a financier. have not express charges, as well as vague rumors, been brought against him at the bar of the public? they may be unfounded, it is true; but it shows that a man cannot serve in such a station without exciting popular clamor. it is very well known, i dare say, to many gentlemen in this house, that the noise and commotion were such as obliged congress once more to alter their treasury department, and place it under the management of a board of commissioners. we have seen speculations excited from this quarter against the government itself, and painful insinuations of design by his appointment to the senate. i mention these circumstances to exhibit to your view the inconveniencies to which an officer is subjected by constituting an office of this nature. if the gentleman i have alluded to had been a member of the board of treasury, he would not have been subjected to the charges which were brought against him. in such a situation, he could have rendered the services his great abilities enabled him to do, without exposing his character to be torn to pieces by malevolence or detraction. i am desirous of supporting the president; but the senate requires to be supported also in their constitutional rights. to this body belongs the confidence of the states; while the president rests his support upon them he will be secure. they, with this house, can give him proper information of what is for the public interest, and, by pursuing their advice, he will continue to himself that good opinion which is justly entertained of him. if we are to establish a number of such grand officers as these, the consequences appear to me pretty plain. these officers, bearing the titles of minister at war, minister of state, minister for the finances, minister of foreign affairs, and how many more ministers i cannot say, will be made necessary to the president. if by this establishment we make them more respectable than the other branches of the government, the president will be induced to place more confidence in them than in the senate; the people will also be led to consider them as more consequential persons. but all high officers of this kind must have confidence placed in them; they will in fact be the chancellors, the ministers of the nation. it will lead to the establishment of a system of favoritism, and the principal magistrate will be governed by these men. an oligarchy will be confirmed upon the ruin of the democracy; a government most hateful will descend to our posterity, and all our exertions in the glorious cause of freedom will be frustrated: we shall go on till we reduce the powers of the president and senate to nothing but a name. this surely, sir, does not comport with the conduct of the house. we have been very tenacious of giving a title to the president, lest it should be implied we desired to increase his power. we would call him by no other appellation than merely president of the united states. i confess i was not such a stickler about titles as all this, because i did not consider that the liberties of the people could be hurt by such means; but i am not clear that the constitution authorizes us to bestow titles; it is not among the enumerated powers of congress. but if the constitution did authorize it--[a call to order was made by some of the members, and mr. gerry was desired to confine himself to the point; the subject of titles was not before the house.][ ] mr. gerry proceeded, and said the senate were constitutionally the highest officers of government, except the president and vice president; that the house was about to supersede them, and place over their heads a set of ministers who were to hold the reins of government, and all this to answer no good purpose whatever; because the same services could be obtained from subordinate officers. in short, a board of treasury would conduct the business of finance with greater security and satisfaction than a single officer. he had a very good opinion of the gentleman who formerly administered the finances of the united states, and doubted if another of equal qualities could be found; but it was impossible for any person to give satisfaction in such a station. jealousy would unavoidably be entertained; besides, no inconvenience resulted from the present arrangement of that department; therefore, there could be no good reason to induce a change. if the house was truly republican and consistent, they would not admit officers, with or without titles, to possess such amazing powers as would eventually end in the ruin of the government. under these impressions, he moved to amend the resolution so as to read, "there shall be established a treasury department, at the head of which there shall be three commissioners, to be denominated the board of treasury." mr. wadsworth.--my official duty has led me often to attend at the treasury of the united states, and, from my experience, i venture to pronounce that a board of treasury is the worst of all institutions. they have doubled our national debt. (i do not mean by this observation to censure any man who has been in that office: i presume they were honest men, and did as well as could be done under such a system.) but i do not remember a single instance, in any one board, that i found them to have a system that would give even tolerable satisfaction; there appeared a want of confidence in the members of them all: they seemed to have no fixed principles to guide them, nor responsibility for their conduct. i have had also transactions at the treasury whilst it was managed by a superintendent of finance. as to what fell from the gentleman last up, (though without intention, i dare say, to affect or prejudice the character of that officer, it may possibly have such an effect,) i think it necessary to state my sentiments, which are formed from my own experience as well as from report. i had great transactions with him, and must say that there did appear to be system in his management, and responsibility in his negotiations. i dare risk my fortune and character with him, because there was unity in the officer, and somebody in whom i could confide. the nature of the office is better calculated to give satisfaction than the other. i will not pretend to enumerate the savings he made, by introducing economy throughout the whole departments under congress, because i do not know them all; but they were very considerable. the administration of the finances was clear to the meanest capacity. receipts and expenditures were stated simply; they were published to the world. the heads of the treasury department, the board of commissioners, i do not believe have closed their accounts to this very day. i do not say it is for want of ability, will, or honesty, that this event has not taken place. i conceive it to be owing to their want of system in conducting their business. i wish the committee had before them the transactions of the board for one single month; they would find what i have remarked to be too well founded. instead of system and responsibility, they would find nothing but confusion and disorder, without a possibility of checking their accounts. i know i am heard by one gentleman who is acquainted with these truths by experience.[ ] i beg leave to repeat once more, that under boards of treasury, there never was a possibility of the public knowing their situation; there is no possibility of getting on with the public accounts and closing them; there have not been the transactions of more than one of the great departments completely settled, owing to a radical defect in their constitution; they cannot proceed with that unity and decision necessary to insure justice. as to what the gentleman said, with respect to the difficulty of getting a proper officer to fill the department, i will just observe, that i do not believe it impossible, and am therefore prepared to attempt it. mr. benson stated, that in the year , from the very great derangement of public affairs, congress were induced to place the treasury department under the superintendence of an individual. it is true, after the conclusion of the war, in the latter end of , or beginning of , congress again changed their system, and placed the department in the hands of three commissioners, to be taken, as the gentleman has said, one from the eastern, one from the middle, and one from the southern district; which regulation i think induced above twenty applications. some gentlemen on this floor will doubtless recollect an observation that was made at that time, that if this trust had been to be reposed in one responsible individual, not perhaps more than three of the candidates would have had confidence to come forward as applicants for the office. for his part, he conceived, that it required the same abilities in every individual of the commissioners, as was necessary if a single person was placed at the head of the department. if men competent to the undertaking are so difficult to be found, you will increase the embarrassment of the president threefold by making the arrangement the gentleman contends for. the principle upon which the gentleman advocates the appointment of a board of treasury, would apply in favor of a change in the constitution, and we ought to have three presidents of the united states instead of one, because their business might be done with more regularity and facility; but he did not think the argument to be well founded. mr. baldwin thought that there were very few gentlemen who had much to do with public business, but had turned their attention to this question. he had employed his reflection upon the subject for some time, and his sentiments were against the establishment of a board of treasury. he was persuaded there was not so much responsibility in boards as there was in individuals, nor is there such good ground for the exercise of the talents of a financier in that way. boards were generally more destitute of energy than was an individual placed at the head of a department. the observations of the gentleman from massachusetts were of great weight, so far as they inferred the necessity of proper checks in the department having care of the public money; if they had system, energy, and responsibility, he should be in favor of them; but his experience had convinced him of the contrary. he was not an advocate for an unlimited authority in this officer. he hoped to see proper checks provided; a comptroller, auditors, register, and treasurer. he would not suffer the secretary to touch a farthing of the public money beyond his salary. the settling of the accounts should be in the auditors and comptroller; the registering them to be in another officer, and the cash in the hands of one unconnected with either. he was satisfied that in this way the treasury might be safe, and great improvements made in the business of revenue. mr. madison had intended to have given his sentiments on this subject; but he was anticipated in some things by the gentleman last up. he wished, in all cases of an executive nature, that the committee should consider the powers that were to be exercised, and where that power was too great to be trusted to an individual, proper care should be taken so to regulate and check the exercise, as would give indubitable security for the perfect preservation of the public interest, and to prevent that suspicion which men of integrity were ever desirous of avoiding. this was his intention in the present case. if the committee agreed to his proposition, he intended to introduce principles of caution, which he supposed would give satisfaction on that point. as far as was practicable, he would have the various business of this important branch of the government divided and modified, so as to lull at least the jealousy expressed by the gentleman from massachusetts; indeed, he supposed, with the assistance of the committee, it might be formed so as to give satisfaction. he had no doubt but that the offices might be so constituted as to restrain and check each other; and unless an unbounded combination took place, which he could by no means suppose was likely to be the case, that the public would be safe and secure under the administration. he would favor the arrangement mentioned by the worthy gentleman from south carolina, (mr. baldwin,) and after that was separated from the secretary's duties, he believed the officer would find sufficient business to employ his time and talents in rendering essential services to his country. this arrangement he considered would answer most of the objections which had been urged. if a board is established, the independent officers of comptroller and auditor are unknown; you then give the aggregate of these powers to the board, the members of which are equal; therefore you give more power to each individual than is proposed to be trusted in the secretary; and if apprehensions are to be entertained of a combination, they apply as forcibly in the case of two or three commissioners combining, as they do in the case of the secretary, comptroller, and other officers. if gentlemen permit these sentiments to have their full weight, and consider the advantages arising from energy, system, and responsibility, which were all in favor of his motion, he had no doubt of their according with him on this question. mr. boudinot considered the question to be, whether the department should be under the direction of one or more officers. he was against boards, because he was convinced by experience that they are liable to all the objections which gentlemen had stated. he wished the committee had it in their power to turn to the transactions of this department since the revolution, to examine the expenditures under former boards of treasury, and under the superintendent of finance; it would so confound them, that he was sure no gentleman would offer another argument in favor of boards. he was not acquainted with the management under the present board. he had not been in the habit of doing business with them. but between the administration of the former and the superintendent of finance, there was an intolerable comparison. he was far from being astonished at the jealousy and suspicion entertained of that valuable officer; he rather wondered that the clamor was not more loud and tremendous. he could not repeat all the causes there were for accusation against him, but surely they were not inconsiderable. he remembered one hundred and forty-six supernumerary officers were brushed off in one day, who had long been sucking the vital blood and spirit of the nation. was it to be wondered at, if this swarm should raise a buzz about him? the reform which daily took place made him no inconsiderable number of enemies. the expenditures under the board of treasury had been enormous. they were curtailed in the quartermasters, commissaries of provision and military stores, in the hospital, and every great department established by congress; so that, besides those who were offended by a removal, every one who was affected by this economy, or parsimony, if they will call it so, were incensed against him. it was impossible to gain friends among those people by a practice of this kind. he would state a circumstance which might give the committee some small idea of what the savings under the superintendent were. the expenditure of hay at a certain post was one hundred and forty tons; such was the estimate laid before him; yet twelve tons carried the post through the year, and the supply was abundant, and the post was as fully and usefully occupied as it had ever been before. the question on the amendment proposed by mr. gerry was taken and lost; after which the resolutions respecting the treasury and war department, as proposed by mr. madison, were both agreed to. mr. vining then proposed the establishment of the domestic department upon the same principles; but, on motion of mr. boudinot, the committee rose and reported the resolutions agreed to.--adjourned. thursday, may . _executive departments._ the house proceeded to consider the resolution reported yesterday from the committee of the whole house on the state of the union, and the same being amended to read as follows: _resolved_, that it is the opinion of this committee that there ought to be established the following executive departments, viz: a department of foreign affairs, at the head of which shall be an officer to be called secretary to the united states for the department of foreign affairs, removable by the president. a treasury department, at the head of which shall be an officer to be called secretary to the united states for the treasury department, removable by the president. a department of war, at the head of which shall be an officer to be called secretary to the united states for the department of war, removable by the president. _resolved_, that this house doth concur with the committee in the said resolution; and that a committee, to consist of eleven members, be appointed to prepare and bring in a bill or bills pursuant thereto. the members elected were, mr. baldwin, mr. vining, mr. livermore, mr. madison, mr. benson, mr. burke, mr. fitzsimons, mr. boudinot, mr. wadsworth, mr. gerry, and mr. cadwalader. friday, may . _contested election._[ ] the house resumed the consideration of the report on mr. smith's case. after some desultory conversation on the recommitment and mode of proceeding, it was agreed to examine the evidence in favor of mr. smith, the facts alleged by doctor ramsay, in proof that mr. smith was not seven years a citizen of the united states, being admitted. whereupon, it being moved and seconded, that the house do agree to the following resolution: _resolved_, that it appears to this house, upon full and mature consideration, that the said william smith had been seven years a citizen of the united states, at the time of his election. mr. smith.--as the house are inclined to hear the observations i have to make, i shall begin with admitting the facts stated in the memorial of doctor ramsay, hoping the house will excuse the egotism into which i am unavoidably drawn. i was born in charleston, south carolina, of a family whose ancestors were among the first settlers of that colony, and was sent to england for my education when i was but twelve years of age. in , i was sent to geneva, to pursue my studies, where i resided until . in november, that year, i went to paris, where i resided upwards of two months in the character of an american gentleman. immediately on my arrival there, i waited on doctor franklin, mr. adams, and mr. a. lee, the commissioners from congress to the court of france, as a citizen of america, and was received as such by them. in january, , i left paris for london, whither i went to procure the means of embarking for america, from the gentleman who had been appointed my guardian by my father when i was first sent to europe in , and from whom alone i had any hope of obtaining such means. but in this endeavor, i was disappointed, and remained some time in england, with the hope of receiving remittances from charleston. here again my expectation was defeated. the rapid depreciation of the continental money rendered the negotiation of money transactions extremely difficult, and thus i remained till the fall of charleston. i took this opportunity of studying the law, but could not be called to the bar, because i had not taken the oath of allegiance to great britain, which is a necessary qualification. after the surrender of charleston, the whole state of south carolina fell into the hands of the enemy, and it was impossible at that time to return. no sooner, however, did i acquire the means, and an opportunity offered, than i prepared myself to go back to america. i quitted london for that purpose, in october or november, , not in a vessel bound to charleston, then a british garrison, and which i certainly should have done, had i considered myself a british subject, and which would have been most convenient, as there were vessels constantly going from london to charleston; but i travelled to ostend, and there embarked in a neutral vessel bound to st. kitt's, from whence it was my intention to proceed to a danish island, and thence to some american port in north carolina or georgia, from whence i could reach the american camp. in the beginning of january, , i sailed from ostend, but was detained a considerable time by contrary winds, and in the middle of the month of february, was shipwrecked on the coast of england, and was obliged to return to london in order to procure another passage. these circumstances unavoidably prevented my return to charleston, until some time in november, . on my arrival at charleston, i was received by my countrymen as a citizen of the state of south carolina, and elected by their free suffrage a member of the legislature in november, . in the august following i was chosen, by the governor and council, a member of the privy council, and this election was confirmed by the legislature the october following. in september, the same year, i was elected one of the wardens of the city of charleston. in november, , i was again elected into the legislature; again in november, ; i was elected at the same time that i was elected to the house of representatives of the united states, the september preceding having been chosen again a warden of the city. after having stated these facts, he went on adverting to the laws referred to in the report of the committee, which, he said, he conceived to be applicable to the present case. in september, , a question was discussed in the legislature of south carolina, respecting the young men who were sent abroad for their education, and it was determined that it was most for the interest of the state, that they should be allowed to continue in europe till they were twenty-two years of age; after which the law provided they should be doubly taxed if they did not return. this law might fairly be supposed to recognize the citizenship of all the young men in a similar predicament with himself. it allowed them all to be absent until they were twenty-two years of age; but even after that period it did not deprive them of the right of citizenship; it only subjected them to the penalty of a double tax. this he contended was a sort of compact with him, that if he chose to be absent after that time, he should suffer a certain penalty, which, in its own nature, implied that his citizenship remained; but before he attained that age, south carolina was in such a situation that her best friends were compelled to be absent, and take refuge in distant countries. it was not till some time after that the friends of the american cause began to assemble in that state; the absentee law, therefore, never operated on him, and he never was doubly taxed. in february, , the legislature met at jacksonburg, and discriminated between friend and foe, between american and british subjects, by disposing of the estates of the latter, and banishing them; from an inspection of the law passed at that time, it would be evident in what light they viewed him. he had landed property in the state, but was himself in england; yet they did not attempt to confiscate his property, or subject him to an amercement. the absentee law was his safeguard, he had the permission of the state to be abroad. if the legislature in recognized as citizens some of those persons whose estates were confiscated for adhering to great britain, and for being disaffected to america _a fortiori_, did it not recognize as a citizen one whose estate was not forfeited, who had not been deemed worthy of punishment, and who had been absent under the sanction of the law? by the constitution of south carolina it appears, that no person was eligible to a seat in the legislature until he had resided three years, nor to a seat in the privy council until he had resided five years in the state. he had a seat in both those bodies before he had resided two years in the state of south carolina, and no objection was ever made on that score. he could not have been qualified for either, had not the people of south carolina deemed his residence in that state, such a residence as gained him a qualification; or had they not supposed the qualification required in the constitution applied only to new comers and new citizens, for whom that residence was necessary to wean them from their local prejudices and national habits, and to attach them to the commonwealth. had they not, in short, supposed him to have been a citizen during the revolution, and attached to his native state by every tie which could bind an individual to any country. three years' residence was either not required of him, or his former residence was deemed within the meaning of the constitution. an act to confer the right of citizenship on aliens was passed march , . for the purpose of possessing the subordinate rights of citizenship, such as an exemption from the alien duty, a residence of one year, and taking the oath of allegiance, was sufficient. to confer a right of voting at elections, a person must have been admitted a citizen two years prior to his voting; but for the higher privileges of a citizen, being eligible to offices of trust, to a seat in the legislature and privy council, the alien must have been naturalized by law. now, in november, , he was elected into the legislature, and took his seat without objection in january, , and was elected into the privy council, october, ; all without being naturalized by law. in october, , when he was elected to the council, his election was opposed, but the objection now brought forward was not then made; and the memorialist himself, who was a member of the legislature, voted in favor of the choice; though, unquestionably, unless he was considered by the legislature as a citizen before he returned to charleston, nothing had afterwards occurred to make him so, and the alien act of positively required a naturalization by act of assembly to give him a qualification. the constitution of south carolina is silent as to citizenship, but allowed any person to vote at elections who had resided a year in the state, and paid a certain tax; to be a member of the assembly he must have resided three, and to be a privy councillor five years previous to his election, but nothing was said about citizenship. the act of , however, expressly defined who should and who should not be deemed citizens; and, consequently, all persons who did not become citizens must have been held to be aliens, and considered so, till they had conformed to the alien act of . now, as he was admitted to offices of trust, to which aliens were not admissible, and as he was admitted to them without having the rights of citizenship conferred upon him, in pursuance of that act, it followed clearly, that the people of south carolina and the legislature acknowledged him to be a citizen by virtue of the revolution. he went on to observe, that, from the doctrine laid down by the memorialist, it was difficult to ascertain when he did become a citizen of south carolina. when he was admitted to the bar in , he did no act which made him a citizen, the bare act of taking an oath of qualification to an office could not convert an alien to a citizen. the constitution seemed to imply a mere residence of a year, by giving a right to vote, gave a right of citizenship; if that were the case, and if his residence prior to the revolution was considered such a residence as the constitution required, then he was a citizen, by virtue of the constitution, after having resided a year in carolina. now, it was clear, his residence prior to the war was deemed such a residence as the constitution required; because he was admitted to vote and admitted to a seat in the legislature and council by right of such residence, not having had the requisite residence since the war, and yet being deemed qualified. if, therefore, that part of the constitution which gave a right of voting, in consequence of a year's residence and paying a certain tax, virtually conferred citizenship, by giving a right to vote, (and it appeared absurd that a right to vote should be given to persons not citizens,) and if, also, his residence, prior to the revolution, was deemed a sufficient residence, then he was a citizen by virtue of the constitution. the points that seemed most to be relied upon by the memorialist were: st. that residence was actually necessary to confer citizenship, or, in other words, that a person could not become a citizen of a country, till he has resided in it. d. that a person could not become a citizen till he was of age to choose his country. in answer to the first, he denied that residence in the country was absolutely necessary. was it to be supposed, he asked, that when a man sent his son into another country for his education and improvement, the son was thereby to lose any political benefits which might, during such temporary absence, accrue to his country? if his father had lived a few years longer, would there have arisen any question on this subject? would he not, though absent, have acquired, according to the petitioner's own positions, a right of citizenship? and should his death, at such an early period, not be deemed a sufficient misfortune for him, without using that as a pretence for making him an alien? those who represented him in carolina as his guardians, who were _in loco parentis_, were residents in carolina at the declaration of independence. his property was in carolina, his money in the treasury, assisting to carry on the war. the declaration of independence affected him as much, though at geneva, as it did those in carolina; his happiness, that of his dearest connections, his property, were deeply interested in it: his fate was so closely connected with that of carolina, that any revolution in carolina was a revolution to him. though a minor, as soon as he heard of the independence of america, he considered himself an american citizen. if a person could not become a citizen of a country without residing in it, what should be said of those gentlemen who had been in europe during the war, and were now in high office in america? several of them went to europe before the war, were there at the declaration of independence, and did not return to america till after the war, or about the close of it. when did their citizenship commence? according to the petitioner, they could not become citizens of america until they returned to america, and took an oath of allegiance to the states; but congress employed them in offices of great confidence, before they had returned to america, or taken such oath. congress, therefore, considered them citizens, by virtue of the revolution. it had been said, that carolina had called on her young men to come to her assistance. this was not the true state of the case. carolina thought that her young men who were abroad for their education, should not be taken from their studies till they were twenty-two years of age, and doubly taxed them after that. his guardian wrote to him that he had permission of the legislature to be absent till he was twenty-two, and that he should be doubly taxed after that age. it has been also said, that carolina tendered an oath, to discover who were friends, and who were enemies. in march, , the legislature of south carolina passed an act to oblige every free male inhabitant of that state, above sixteen years of age, to take an oath of allegiance to the state. as there were notoriously many persons then in the state who were inimical to its liberties, such a step was necessary to give a reasonable cause for obliging them to quit the country. with that view, the oath was generally tendered only to those who were suspected or known not to be friendly to the cause. he had been informed by several persons, who were zealous partisans, and then in carolina, that they had never taken any oath of allegiance, and that it had not been required of them on this occasion. the act directed, that those who did not take it, should quit the state; and, if they returned, should be dealt with as traitors, and suffer death. let us examine whether this act can, in any respect, apply to the present question. st. it particularly mentioned "inhabitants of the state of south carolina." it could not, therefore, apply to persons who were abroad. dly. it directed that the oath should be taken before a justice of peace in carolina; this could not, therefore, extend to a person then at geneva. dly. it was directed to be taken in one month after the passing of the act; and it was not possible that i should hear of the existence of such an act in less than three months. thly. it was directed, that if the persons refused to take it, they should quit the state; but i was already out of it. thly. those who refused to take it, were prevented from acquiring or conveying property, and rendered incapable of exercising any profession. but on my return to carolina, i took peaceable possession of my estate, part of which consisted of lands and houses, which had been mine since the year ; and i was immediately admitted to the exercise of the profession for which i was educated. thly. the act directed, that if any person returned to carolina, after having refused to take the oath, he should be put to death as a traitor; and, yet, on my return, never having taken the oath, i was elected a member of the legislature, and a privy councillor; and, instead of being deemed a criminal myself, i acted as attorney general to punish others; and yet the petitioner, in one of his late publications, lays great stress on the applicability of this act. dly. there could be no doubt that a minor might be a citizen, from the very words of the constitution, which admitted a person to be a member of the house of representatives at twenty-five, and yet required a citizenship of seven years. this was of itself a sufficient refutation of every thing contained in the petition on this head. the constitution acknowledged that a person might be a citizen at eighteen; if so, there was no reason why a person might not be one at sixteen or fourteen. mr. lee said, the committee had now to determine, whether mr. smith was a citizen of south carolina during his absence from home, or not. if the laws of that state recognized him as such, the question was determined, because this house could not dispute a fact of that kind. from the reference that has been made to the constitution and laws of south carolina, and the circumstances which took place under them, with respect to mr. smith, it was convincing that he was acknowledged there to be a citizen in consequence of the revolution. mr. madison.--i think the merit of the question is now to be decided, whether the gentleman is eligible to a seat in this house or not; but it will depend on the decision of a previous question, whether he has been seven years a citizen of the united states or not. from an attention to the facts which have been adduced, and from a consideration of the principles established by the revolution, the conclusion i have drawn is, that mr. smith was, on the declaration of independence, a citizen of the united states; and unless it appears that he has forfeited his right, by some neglect or overt act, he had continued a citizen until the day of his election to a seat in this house. i take it to be a clear point, that we are to be guided, in our decision, by the laws and constitution of south carolina, so far as they can guide us; and where the laws do not expressly guide us, we must be guided by principles of a general nature, so far as they are applicable to the present case. it were to be wished, that we had some law adduced, more precisely defining the qualities of a citizen or an alien; particular laws of this kind have obtained in some of the states; if such a law existed in south carolina, it might have prevented this question from ever coming before us; but since this has not been the case, let us settle some general principle before we proceed to the presumptive proof arising from public measures under the law, which tend to give support to the inference drawn from such principles. it is an established maxim, that birth is a criterion of allegiance. birth, however, derives its force sometimes from place, and sometimes from parentage; but, in general, place is the most certain criterion; it is what applies in the united states; it will, therefore, be unnecessary to investigate any other. mr. smith founds his claim upon his birthright; his ancestors were among the first settlers of that colony. it is well known to many gentlemen on this floor, as well as to the public, that the petitioner is a man of talents, one who would not lightly hazard his reputation in support of visionary principles: yet i cannot but think he has erred in one of the principles upon which he grounds his charge. he supposes, when this country separated from great britain, the tie of allegiance subsisted between the inhabitants of america and the king of that nation, unless, by some adventitious circumstance, the allegiance was transferred to one of the united states. i think there is a distinction which will invalidate his doctrine in this particular, a distinction between that primary allegiance which we owe to that particular society of which we are members, and the secondary allegiance we owe to the sovereign established by that society. this distinction will be illustrated by the doctrine established by the laws of great britain, which were the laws of this country before the revolution. the sovereign cannot make a citizen by any act of his own; he can confer denizenship; but this does not make a man either a citizen or subject. in order to make a citizen or subject, it is established, that allegiance shall first be due to the whole nation; it is necessary that a national act should pass to admit an individual member. in order to become a member of the british empire, where birth has not endowed the person with that privilege, he must be naturalized by an act of parliament. what was the situation of the people of america, when the dissolution of their allegiance took place by the declaration of independence? i conceive that every person who owed this primary allegiance to the particular community in which he was born, retained his right of birth, as a member of a new community; that he was consequently absolved from the secondary allegiance he had owed to the british sovereign. if he were not a minor, he became bound, by his own act, as a member of the society who separated with him from a submission to a foreign country. if he were a minor, his consent was involved in the decision of that society to which he belonged by the ties of nature. what was the allegiance, as a citizen of south carolina, he owed to the king of great britain? he owed his allegiance to him as a king of that society to which, as a society, he owed his primary allegiance. when that society separated from great britain, he was bound by that act, and his allegiance transferred to that society, or the sovereign which that society should set up; because it was through his membership of the society of south carolina that he owed allegiance to great britain. this reasoning will hold good, unless it is supposed that the separation which took place between these states and great britain, not only dissolved the union between those countries, but dissolved the union among the citizens themselves: that the original compact, which made them altogether one society, being dissolved, they could not fall into pieces, each part making an independent society; but must individually revert into a state of nature; but i do not conceive that this was, of necessity, to be the case; i believe such a revolution did not absolutely take place. but in supposing that this was the case, lies the error of the memorialist. i conceive the colonies remained as a political society, detached from their former connection with another society, without dissolving into a state of nature; but capable of substituting a new form of government in the place of the old one, which they had, for special considerations, abolished. suppose the state of south carolina should think proper to revise her constitution, abolish that which now exists, and establish another form of government: surely this would not dissolve the social compact. it would not throw them back into a state of nature. it would not dissolve the union between the individual members of that society. it would leave them in perfect society, changing only the mode of action, which they are always at liberty to arrange. mr. smith being then, at the declaration of independence, a minor, but being a member of that particular society, he became, in my opinion, bound by the decision of the society, with respect to the question of independence and change of government; and if afterwards he had taken part with the enemies of his country, he would have been guilty of treason against that government to which he owed allegiance, and would have been liable to be prosecuted as a traitor. so far as we can judge by the laws of carolina, and the practice and decision of that state, the principles i have adduced are supported; and i must own, that i feel myself at liberty to decide, that mr. smith was a citizen at the declaration of independence, a citizen at the time of his election, and, consequently, entitled to a seat in this legislature. mr. jackson.--i differ widely from the gentleman from virginia (mr. madison) on the subject of allegiance and the social compact, and hold the principles advanced by him exceedingly dangerous to many of the states, and in particular to the one i have the honor to represent. the situation of america, at the time of the revolution, was not properly to be compared to a people altering their mode or form of government. nor were there two allegiances due, one to the community here, another to that of great britain. we were all on a footing; and i contend the principle is right, in some degree, of a total reversion to a state of nature amongst individuals, and to a mere parental or patriarchal authority, where the heads had families dependent on them; the former, or individual pursued that line which appeared right in his own eyes, and the cause which he thought just; and, in the latter case, the children followed the will of the father, who chose for them, as the person who brought them into life, and whose fortunes they were to inherit. i conceive the whole allegiance or compact to have been dissolved. many of the states were a considerable period without establishing constitutions or forms of government, and during that period we were in a little better state than that of nature; and then it was that every man made his election for an original compact, or tie, which, by his own act, or that of his father for him, he became bound to submit to. and what, sir, would otherwise be the result? and if the gentleman's doctrines of birth were to be supported, those minors, who, with british bayonets, have plundered and ravaged, nay, cruelly butchered their more virtuous neighbors--the sons of the most inveterate traitors, whose names deservedly sounded in every bill of confiscation; and the minors, sons of those who sheltered themselves under the shade of the british king, and supported his armies, if not with arms, with the resources of war, until the hour of danger was over--those, i say, after the blood of thousands has been spilt in the establishment of our government, can now come forward and sneer at the foolish patriots who endured every hardship of a seven years' war, to secure to them the freedom and property they had no hand in defending. sir, did we fight for this? was it for this the soldier watched his numerous nights, and braved the inclemency of the seasons? will he submit, after having gained his point at the expense of property and the loss of constitution, to have those sentiments established? if he will, he has fought to little purpose indeed. sir, i again contend, that when the revolution came on we were all alike with respect to allegiances, and all under the same social tie. an englishman born did not conceive himself more liable to be condemned for treason than an american, had the enemy succeeded; nor would there have been any distinction in the laws on coming to a trial. but, sir, how should this primary allegiance be known to belong to the less, or american community, where the majority did not prevail. in georgia, the majority were opposed to american measures; agreeably to the gentleman's reasoning, the minors must have been all on the british side; and yet many of them, on arriving to years of discretion, behaved well and valiantly with us. to corroborate this, sir, i will remark, that, for a considerable period, we had no general or federal government, or form of constitution, and yet were in arms. i would ask what state we were in then? neighbor was against neighbor, and brother against brother. but, sir, the gentleman says the hardened minor will not return. sir, experience has proved the contrary. the middle and eastern states, except pennsylvania, new jersey, and new york, never had the enemy long with them; there was not the same trial of men, and they knew not the audacity of those villains. after having received their equivalent for, in many cases, feigned losses, from the british crown, they are daily returning and pushing into office. it is necessary we should guard against them. britain, although humiliated, yet has a longing eye upon this country; she has yet posts in it. although it is improbable that so many of these people will get into congress as to form a corrupt majority, yet they have ambition and resentment enough to attempt it. at this moment, sir, in georgia, are some of the most daring, bringing ejectments for estates which their fathers had deservedly forfeited, although themselves had imbrued their hands in the blood of their fellow-citizens. now, to the present case: highly as i regard the gentleman (mr. smith) as a valuable member, and esteem his abilities, i can only form my opinion on the leave given him by the state to be absent. if that principle is introduced into the resolution, i will vote in favor of mr. smith's eligibility; but if not, i must decline voting. which he accordingly did when the question was put. mr. tucker hoped that the yeas and nays would be taken on this question, not because he had any doubt in his own mind of mr. smith's right to a seat, but because he had been solicited by dr. ramsay to have the yeas and nays taken. the yeas and nays were taken as follows: yeas.--messrs. baldwin, benson, boudinot, cadwalader, carroll, clymer, coles, contee, fitzsimons, floyd, gilman, goodhue, heister, huntington, lawrence, lee, leonard, livermore, madison, moore, muhlenberg, page, van rensselaer, seney, schureman, scott, sinnickson, smith, (of maryland,) sturgis, sylvester, thatcher, trumbull, tucker, vining, white, and wynkoop. jonathan grout voted in the negative. adjourned until monday. thursday, may . _western lands._ the house, on motion of mr. scott, went into a committee of the whole on the state of the union, for the purpose of considering certain resolutions he had prepared respecting the disposal of the land in the western territory. mr. trumbull in the chair. mr. scott presumed there was little need of argument to prove to the committee the necessity of taking speedy measures with respect to the unsettled lands in the western territory. the dissolution of the board of treasury, and the death of the late geographer of the united states, are adventitious circumstances, which tend to increase the necessity. gentlemen are acquainted with the number of sales which have been made to some of the citizens of the united states; they consequently know that the united states are under an obligation to complete the surveys of those lands which they have made sale of. they know, also, that until this is done, they cannot receive a farthing of the millions of dollars due on those contracts; they will not only be unable to receive the principal, but will be paying interest for the same. besides this, there are other considerations for putting the business on a new footing. the mode hitherto pursued of selling lands has been very expensive to the united states. perhaps, on inquiry, we shall find, that the specie it has cost us in getting the land surveyed and sales completed, would have purchased as many certificates as we get for the sale of the land. the lands are also proposed to be sold in too great quantities. it is very difficult to form a company for the purchase of a million acres. it ought to be sold in small quantities, to make the sales more certain and numerous; and, consequently, increase the public income. on this principle, it will be well to open a land office, and grant the soil in such quantities as may suit the applications. by this means more may be expected for the purchase, than when it is struck off, at a wholesale price, by the million acres; and in this way the land office will be conducted without expense, which will be fixed on the purchaser, so that the whole money the lands may bring will come into the treasury without deduction. there are other considerations why a land office should be opened for the sale of that territory in the way just mentioned. there are, at this moment, a great number of people on the ground, who are willing to acquire by purchase a right to the soil they are seated upon. allured by its fertility, the agreeableness of the climate, and the prospect of future ease to themselves and families, they would not seek a change. kentucky, already full, at least there are no more valuable lands to be got there with a clear title, can receive no more emigrants. they, therefore, turn their wishful eyes upon the lands of the union. they hope to get them of congress upon as good terms as they can procure them of the speculators. what will these men think, who have placed themselves on a vacant spot, anxiously waiting its disposition by the government, to find their pre-emption right engrossed by the purchaser of a million of acres? will they expose themselves to be preyed upon by these men? they might submit to this, but they have other offers. there are seven thousand souls waiting for lands; they will have them here or elsewhere; but there is some danger, if they cannot be accommodated within the boundaries of the united states, they will do one of two things: either move into the spanish territory, where they are not altogether uninvited, and become an accession of power to a foreign nation, forming to us a dangerous frontier; or they will take this course, move on the united states territory, and take possession without your leave. what then will be the case? they will not pay you money. will you then raise a force to drive them off? that has been tried: troops were raised, and sent under general harmer, to effect that purpose. they burnt the cabins, broke down the fences, and tore up the potato patches; but three hours after the troops were gone, these people returned again, repaired the damage, and are now settled upon the lands in open defiance of the authority of the union. but, nevertheless, they are willing to pay an equitable price for those lands; and if they may be indulged with a pre-emption to the purchase, no men will be better friends to the government. they went on the ground with an intention of purchasing, and are kept there by a hope that the government will see their interest, and dispose of the land upon reasonable terms. but if you do not listen to their request, if you neglect or despise their offers, and they prove too weak to resist the omnipotent arm of government, they will have recourse to a neighboring power for protection. hopes of that protection are now held out to them; it is my duty to inform you of the fact. they will be led to think their interest is separate from yours on the atlantic shores. it will take prudent management to prevent the fatal effects of a commotion in that country. one of the most unhappy things we could do, would be to refuse selling those lands in less quantities than by the million of acres: it would certainly be a cause of disgust, if not of separation. if the object was to prevent the settlement of the country, it would be another thing; but that cannot be accomplished, it is not in the power of any force on earth to prevent the increase of the population now begun; it is therefore much better that we should incline them to friendship, than oblige them to become our enemies. the emigrants who reach the western country will not stop until they find a place where they can securely seat themselves. your lands first offer: their fertility and agreeableness will tempt them to pitch there; but to secure them, they must have a well-grounded hope that the lands they cultivate may become their own. to encourage this, you must open that territory to them, and let them have lands for pay. you must go further, you must open the land office in that country, because it will be impossible for the indigent persons to travel for an office-right. you can then establish a government among them, and derive advantages from them which are now totally lost. they wish for your government and laws, and will be gratified with the indulgence; but they wish also to acquire property under them; they wish for your lands, and what good reason can be offered to warrant a denial? if they cannot get your land, they must go further, and obtain it of foreigners, who are desirous of having them at any rate, who will give them lands without pay. these observations are sufficient, no doubt, to evince the necessity of doing something with respect to the western territory, and something different from what has hitherto been done. in order that the committee may have a full view of my ideas, i will read the plan i have in my hand, upon which a law may be founded. he here read a previous resolution, to be followed by the plan, which was to this effect: _resolved_, that it is the opinion of this committee, that an act of congress ought to pass for establishing and regulating a land-office, for the sale of the vacant and unappropriated land in the western territory. [here, by way of separate resolutions, followed in detail the constituent parts of this office, and the routine in which the business should be conducted, directing the expense of the office to be supported by the fees payable before the warrants and patents were delivered.] mr. clymer did not believe the committee were prepared for a decision at this time. he considered the subject to be as intricate and difficult as it was interesting; and therefore hoped full time would be given for investigation. many persons had purchased large quantities of lands of the late congress, with a view to sell them out in small lots, to accommodate the people who are inclined to settle upon them. if congress now open a land office for the sale of small quantities, it will no doubt overcast the prospect of advantage which induced the former, and may induce future purchasers to apply for large grants. these observations, and others which would readily occur to every gentleman, would satisfy the committee that they ought not to precipitate the business. for this reason, he moved the rising of the committee. mr. madison had no objection to the rising of the committee, as the means of obtaining information; but he thought the business deserving of the earliest attention. the clear and full manner in which the gentleman from pennsylvania had opened the subject to the view of the committee, left no doubt on his mind of the propriety of taking some early measures to accomplish the business in the manner suggested by that gentleman. the facts and intelligence mentioned were too important to be passed lightly over. he should, for the present, agree to rise, but hoped the subject would be resumed in the house. the question was taken on the first resolution moved by mr. scott, and passed in the affirmative; the others remaining on the table. the committee then rose and reported progress. friday, june . _admission of rhode island into the union._ mr. benson presented for consideration, the resolution which he yesterday gave notice of his intention of introducing in relation to the admission of rhode island into the union, and moved that the house immediately go into a committee of the whole on the state of the union, for the purpose of discussing his proposition. the resolution is in the following words: the congress of the united states do resolve and declare it to be their most earnest desire, that the legislature of the state of rhode island and providence plantations, do recommend to the people of that state to choose delegates to meet in convention and to whom the constitution of the united states is to be submitted, conformably to the unanimous resolution of the united states in congress assembled, of the th of september, . mr. page.--i think of rhode island as the worthy gentleman from new york does; but, as a member of congress, i doubt the propriety of this body interfering in the business. if i put myself, for a moment, into the situation of a citizen of a state that has refused to accede to the constitution of the united states, i must admit that i should watch your actions with a jealous eye; i should be apprehensive of undue influence, if i were to see you throw your weight into the scale. but what occasion is there for adopting such a resolution? are gentlemen afraid to leave them to their own unbiased judgment? for my part i am not: it will demonstrate the goodness of the constitution, if it be adopted upon mature consideration, without any aid but its own intrinsic value. as to amendments, when we come to consider of them, i dare say they will be such as to make the constitution more agreeable; but, for the present, i think it improper to have any thing to do with the gentleman's motion; i hope he may be prevailed upon to withdraw it; he has done his duty by bringing it forward; but if it does not meet the approbation of the house, it will be a useless waste of time to give it any further discussion. the gentleman has shown sufficiently his attachment to the federal government, by the earnestness he shows to have it adopted throughout the united states. but, in addition to this, let him consider where such measures may lead us. because the legislature of rhode island have neglected or refused to submit the consideration of the constitution to a convention, we are to recommend it, and express a most earnest desire that they will comply. but suppose they decline doing what you require, what is next to be done? i hope gentlemen will hesitate before they go any further. i think we should be employed more in the line of our duty, by attending to the interests of our constituents, and completing the organization of a government they ordered, than to spend our time about business which is not within our powers. why should we interfere with the concerns of our sister states who have not yet joined the new government? i trust the gentleman will see the impropriety of his motion, and agree to withdraw it. mr. smith, (of south carolina.)--i think we ought to go into committee, and hear what the gentleman has to say on the subject. though i must acknowledge i am at present against the adoption of the resolution he has proposed; yet it is possible, when he has stated his reasons, and pointed out the necessity of it, that i may alter my opinion; but i wonder why the gentleman has omitted north carolina. mr. sherman.--i think rhode island stands in a different situation from north carolina. when this constitution was formed in the convention, north carolina was represented there; she, as well as the adopting states, submitted that instrument to a convention of the people; but not having adopted it, she has again called a convention, and is proceeding to reconsider it as fast as convenient; so that such a request as is now proposed would be unnecessary with respect to them. as rhode island did not send members to the first convention, there was a delicacy in transmitting the proceedings to them, and congress could not, perhaps, apply to them with the same propriety as to another. but all we are now to consider, i believe, is, that we invite the state of rhode island to join our confederacy; what will be the effect of such a measure we cannot tell till we try it. mr. madison.--i believe, mr. speaker, there are cases in which it is prudent to avoid coming to a decision at all, and cases where it is desirable to evade debate; if there were not cases of this kind, it would be unnecessary to guard our discussions with the previous question.[ ] my idea on the subject now before the house is, that it would be improper in this body to expose themselves to have such a proposition rejected by the legislature of the state of rhode island. it would likewise be improper to express a desire on an occasion where a free agency ought to be employed, which would carry with it all the force of a command. how far this is contemplated on the present occasion, i cannot tell; but i heartily wish that as little may be said about it as possible. i conceive this to be one of the cases to which the previous question is applicable; and, if the gentleman means to call the house to a direct decision on this motion, i shall step between, and interpose the previous question. mr. ames.--i am against the previous question being taken, because i wish the house to consider the motion made by the gentleman from new york; it is admitted to be a question of considerable importance; if it is, it ought to be considered; otherwise, we are shutting the door on information, and putting it out of our power to ascertain the propriety or impropriety of the motion. i should be glad to know if any gentleman contemplates the state of rhode island dissevered from the union; a maritime state, situated in the most convenient manner for the purpose of smuggling, and defrauding our revenue. surely, a moment's reflection will induce the house to take measures to secure this object. do gentlemen imagine that state will join the union? if they do, what is the injury arising from the adoption of the resolution intended to be submitted to the committee? is there any impropriety in desiring them to consider a question which they have not yet decided? it has been suggested by an honorable gentleman, that this desire will operate as a demand. if a wish of congress can bring them into the union, why should we decline to express such a wish? the previous question being insisted upon, was put--"shall the main question be now put?" and it was determined in the negative. adjourned. monday, june . michael jenifer stone, from maryland, appeared, and took his seat. tuesday, june . _department of foreign affairs._ the house then resolved itself into a committee of the whole on the bill for establishing an executive department, to be denominated the department of foreign affairs. mr. trumbull in the chair. the first clause, after recapitulating the title of the officer and his duties, had these words: "to be removable from office by the president of the united states." mr. white.--the constitution gives the president the power of nominating, and, by and with the advice and consent of the senate, appointing to office. as i conceive the power of appointing and dismissing to be united in their natures, and a principle that never was called in question in any government, i am averse to that part of the clause which subjects the secretary of foreign affairs to be removed at the will of the president. in the constitution, special provision is made for the removal of the judges; that i acknowledge to be a deviation from my principle; but as it is a constitutional provision, it is to be admitted. in all cases not otherwise provided for in the constitution, i take it, that the principle i have laid down is the governing one. now the constitution has associated the senate with the president in appointing the heads of departments. the secretary of foreign affairs is the head of a department; for the words of the law declare, that there shall be a department established, at the head of which shall be an officer to be so denominated. if, then, the senate are associated with the president in the appointment, they ought also to be associated in the dismission from office. upon the justness of this construction, i take the liberty of reviving the motion made in the committee of the whole, for striking out these words: "to be removable from office by the president of the united states." mr. smith, (of south carolina.)--the gentleman has anticipated me in his motion; i am clearly in sentiment with him that the words ought to go out. it is in the recollection of the committee, that when the subject was last before us, this power was excepted to; and although the words were then allowed to stand, it was generally understood that it should be further debated. i then was opposed to giving this power to the president, and am still of opinion that we ought not to make this declaration, even if he has the power by the constitution. i would premise that one of these two ideas is just: either that the constitution has given the president the power of removal, and therefore it is nugatory to make the declaration here; or it has not given the power to him, and therefore it is improper to make an attempt to confer it upon him. if it is not given to him by the constitution, but belongs conjointly to the president and senate, we have no right to deprive the senate of their constitutional prerogative; and it has been the opinion of sensible men that the power was lodged in this manner. a publication of no inconsiderable eminence in the class of political writings on the constitution, has advanced this sentiment. the author, or authors, (for i have understood it to be the production of two gentlemen of great information,) of the work published under the signature of _publius_, has these words: "it has been mentioned as one of the advantages to be expected from the co-operation of the senate in the business of appointments, that it would contribute to the stability of the administration. the consent of that body would be necessary to displace as well as appoint. a change of the chief magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government, as might be expected if he were the sole disposer of offices. where a man in any station has given satisfactory evidence of his fitness for it, a new president would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that the discountenance of the senate might frustrate the attempt, and bring some degree of discredit upon himself. those who can best estimate the value of a steady administration, will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body, which, from the greater permanency of its own composition, will, in all probability, be less subject to inconstancy than any other member of the government." here this author lays it down, that there can be no doubt of the power of the senate in the business of removal. let this be as it may, i am clear that the president alone has not the power. examine the constitution; the powers of the several branches of government are there defined; the president has particular powers assigned him; the judiciary have in like manner powers assigned them; but you will find no such power as removing from office given to the president. i call upon gentlemen to show me where it is said that the president shall remove from office. i know they cannot do it. now, i infer from this, that, as the constitution has not given the president the power of removability, it meant that he should not have that power; and this inference is supported by that clause in the constitution which provides that all civil officers of the united states shall be removed from office on impeachment for, and on conviction of treason, bribery, or other high crimes and misdemeanors. here is a particular mode described for removing; and if there is no other mode directed, i contend that the constitution contemplated only this mode. i imagine, sir, we are declaring a power in the president which may hereafter be greatly abused; for we are not always to expect a chief magistrate in whom such entire confidence can be placed as in the present. perhaps gentlemen are so much dazzled with the splendor of the virtues of the present president, as not to be able to see into futurity. the framers of the constitution did not confine their views to the first person who was looked up to to fill the presidential chair. if they had, they might have omitted those checks and guards with which the powers of the executive are surrounded. they knew, from the course of human events, that they could not expect to be so highly favored of heaven as to have the blessing of his administration more than seven or fourteen years; after which, they supposed a man might get into power, who, it was possible, might misbehave. we ought to follow their example, and contemplate this power in the hands of an ambitious man, who might apply it to dangerous purposes. if we give this power to the president, he may, from caprice, remove the most worthy men from office. his will and pleasure will be the slight tenure by which an office is to be held, and of consequence you render the officer the mere state-dependant, the abject slave of a person who may be disposed to abuse the confidence his fellow-citizens have placed in him. mr. huntington.--i think the clause ought not to stand. it was well observed that the constitution was silent respecting the removal, otherwise than by impeachment. i would likewise add, that it mentions no other cause of removal than treason, bribery, or other high crimes and misdemeanors. it does not, i apprehend, extend to cases of infirmity or incapacity. indeed, it appears hard to me, that after an officer has become old in an honorable service, he should be impeached for this infirmity. the constitution, i think, must be the only rule to guide us on this occasion; as it is silent with respect to the removal, congress ought to say nothing about it, because it implies that we have a right to bestow it, and i believe this power is not to be found among the enumerated powers delegated by the constitution to congress. mr. sedgwick.--i wish the words to be struck out, because i conceive them to be unnecessary in this place. i do conceive, mr. speaker, that this officer will be the mere creature of the law; and that very little need be said to prove to you that of necessity this ought to be the case. i apprehend, likewise, that it requires but a small share of abilities to point out certain causes for which a person ought to be removed from office, without being guilty of treason, bribery, or malfeasance; and the nature of things demands that it should be so. suppose, sir, a man becomes insane by the visitation of god, and is likely to ruin our affairs, are the hands of government to be confined from warding off the evil? suppose a person in office, not possessing the talents he was judged to have at the time of the appointment, is the error not to be corrected? suppose he acquires vicious habits, an incurable indolence, or total neglect of the duties of his office, which forebode mischief to the public welfare, is there no way to arrest the threatened danger? suppose he becomes odious and unpopular by reason of the measures which he pursues, (and this he may do without committing any positive offence against the law,) must he preserve his office in despite of the public will? suppose him grasping at his own aggrandizement, and the elevation of his connections, by every means short of the treason defined by the constitution, hurrying your affairs to the precipice of destruction, endangering your domestic tranquillity, plundering you of the means of defence, by alienating the affections of your allies, and promoting the spirit of discord; is there no way suddenly to seize the worthless wretch, and hurl him from the pinnacle of power? must the tardy, tedious, desultory road, by way of impeachment, be travelled to overtake the man who, barely confining himself within the letter of the law, is employed in drawing off the vital principle of the government? sir, the nature of things, the great objects of society, the express objects of this constitution, require that this thing should be otherwise. well, sir, this is admitted by gentlemen; but they say the senate is to be united with the president in the exercise of this power. i hope, sir, that is not the case; because it would involve us in the most serious difficulty. suppose a discovery of any of those events which i have just enumerated were to take place when the senate is not in session, how is the remedy to be applied? this is a serious consideration, and the evil could be avoided no other way than by the senate's sitting always. surely no gentleman of this house contemplates the necessity of incurring such an expense. i am sure it will be very objectionable to our constituents; and yet this must be done, or the public interest be endangered by keeping an unworthy officer in place until that body shall be assembled from the extremes of the union. it has been said that there is a danger of this power being abused if exercised by one man. certainly the danger is as great with respect to the senate, who are assembled from various parts of the continent, with different impressions and opinions. it appears to me that such a body is more likely to misuse this power than the man whom the united voice of america calls to the presidential chair. as the nature of the government requires the power of removal, i think it is to be exercised in this way by a hand capable of exerting itself with effect, and, the power must be conferred upon the president by the constitution, as the executive officer of the government. mr. madison.--if the construction of the constitution is to be left to its natural course with respect to the executive powers of this government, i own that the insertion of this sentiment in law may not be of material importance, though, if it is nothing more than a mere declaration of a clear grant made by the constitution, it can do no harm; but if it relates to a doubtful part of the constitution, i suppose an exposition of the constitution may come with as much propriety from the legislature, as any other department of the government. if the power naturally belongs to the government, and the constitution is undecided as to the body which is to exercise it, it is likely that it is submitted to the discretion of the legislature, and the question will depend upon its own merits. i am clearly of opinion with the gentleman from south carolina, (mr. smith,) that we ought in this, and every other case, to adhere to the constitution, so far as it will serve as a guide to us, and that we ought not to be swayed in our decisions by the splendor of the character of the present chief magistrate, but to consider it with respect to the merit of men who, in the ordinary course of things, may be supposed to fill the chair. i believe the power here declared is a high one, and, in some respects, a dangerous one; but, in order to come to a right decision on this point, we must consider both sides of the question: the possible abuses which may spring from the single will of the first magistrate, and the abuse which may spring from the combined will of the executive and the senatorial disqualification. when we consider that the first magistrate is to be appointed at present by the suffrages of three millions of people, and in all human probability in a few years' time by double that number, it is not to be presumed that a vicious or bad character will be selected. if the government of any country on the face of the earth was ever effectually guarded against the election of ambitious or designing characters to the first office of the state, i think it may with truth be said to be the case under the constitution of the united states. with all the infirmities incident to a popular election, corrected by the particular mode of conducting it, as directed under the present system, i think we may fairly calculate that the instances will be very rare in which an unworthy man will receive that mark of the public confidence which is required to designate the president of the united states. where the people are disposed to give so great an elevation to one of their fellow-citizens, i own that i am not afraid to place my confidence in him, especially when i know he is impeachable for any crime or misdemeanor before the senate, at all times; and that, at all events, he is impeachable before the community at large every four years, and liable to be displaced if his conduct shall have given umbrage during the time he has been in office. under these circumstances, although the trust is a high one, and in some degree, perhaps, a dangerous one, i am not sure but it will be safer here than placed where some gentlemen suppose it ought to be. mr. vining.--i hoped, mr. chairman, after the discussion this subject had received on a former occasion, that it would have been unnecessary to re-examine it. the arguments against the clause are reiterated: but, i trust, without a chance of success. they were fully answered before; and i expect the impressions made at that time are not already effaced. the house, as well as the committee of the whole, have determined that those words shall be inserted in the bill; the special committee could therefore do no less than place them where they are; a deference is due to the decision of the house. the house has determined to make a declaration of their construction of the constitution. i am perfectly in sentiment with the majority on this occasion; and contend, that if this power is not in the president, it is not vested in any body whatever. it cannot be within the legislative power of the senate, because it is of an adverse nature; it cannot be within the executive power of the senate, because they possess none but what is expressly granted by the constitution. if gentlemen will point out where the constitution confers this power upon the senate, i will read my recantation, and subscribe to the justness of their doctrine. i am not satisfied that removability shall be acquired only by impeachment. were the advocates of this doctrine aware of its consequences, when they advanced it? the senate has the sole power of trying impeachments; the president is here out of the question. if no officer can be constitutionally removed but by impeachment, it applies to subordinate officers as well as heads of departments. for the constitution only gives power to congress to establish officers by law, and vests the appointment in the president. if these officers are not removable but by impeachment, what is to become of our affairs, when any of the accidents occur which were enumerated by the gentleman from massachusetts (mr. sedgwick)? are we to take the circuitous route of impeachment? the dilatory and inefficient process by that mode, will not apply the remedy to the evil till it is too late to be of advantage. experience has fixed an eternal stigma upon the system of impeachment; witness the case i mentioned, the other day, of warren hastings before the british lords; what delays and uncertainty with the forms of trial, details of evidence, arguments of counsel, and deliberate decision! i ask gentlemen, can there be a greater evil than this in any government? why, then, will gentlemen advocate a doctrine so obnoxious to the principles of the constitution, when a more favorable construction is at hand? mr. white.--mention has been made of impeachments, as the only mode of removing an officer. i will explain my ideas on this point, in order that the committee may be masters of my particular objections to the clause. i consider impeachments necessary to be employed in cases respecting an officer who is appointed during good behavior. thus the judges can only be removed by impeachment. the president and vice president hold their offices for the terms mentioned in the constitution, not liable to be removed from office in any other way. these circumstances are a deviation from my general principle; but have nevertheless a proper ground to be supported on. the electors who appoint the president, cannot assemble to exercise the authority which would naturally be in them. with respect to the judges, it is found necessary for the proper and uncorrupt administration of justice, and the security of freedom, to have them independent in their stations, so that they be not removable at pleasure. to them, therefore, the doctrine of impeachment is peculiarly applicable. it may properly be extended further, in cases where the president is desirous of retaining an officer who ought not to be retained. this house has the power of controlling him, and may impeach the officer before the senate. in either of these three cases impeachments are necessary. mr. boudinot.--this is a question, mr. speaker, that requires full consideration, and ought only to be settled on the most candid discussion. it certainly involves the right of the senate to a very important power. at present, i am so impressed with the importance of the subject, that i dare not absolutely decide on any principle, although i am firmly persuaded we ought to retain the clause in the bill; and, so far as it has been examined, i agree that it is a legislative construction of the constitution, necessary to be settled for the direction of your officers. but if it is a deviation from the constitution, or in the least degree an infringement upon the authority of the other branch of the legislature, i shall most decidedly be against it. but i think it will appear, on a full consideration of this business, that we can do no otherwise than agree to this construction, in order to preserve to each department the full exercise of its powers, and to give this house security for the proper conduct of the officers who are to execute the laws. mr. smith, (of south carolina.)--i have attended to the arguments of the gentlemen who oppose the motion for striking out, and i apprehend that their reasoning is not perfectly consistent. the construction of some gentlemen is, that the power of removal is given to the president by the constitution. others are of opinion that the constitution is silent; and therefore the house ought to give it. to oppose these adverse arguments, i must return to my strong ground on which my opponents dare not venture. i state again, that if the constitution has given the power, it is unnecessary to give it here; or if it has not given it, we have no right to confer it, because it is not within the enumerated powers delegated to congress. gentlemen have said that it is proper to give a legislative construction of the constitution. i differ with them on this point. i think it an infringement of the powers of the judiciary. it is said, we ought not to blend the legislative, executive, or judiciary powers, further than is done by the constitution; and yet the advocates for preserving each department pure and untouched by the others, call upon this house to exercise the powers of the judges in expounding the constitution. what authority has this house to explain the law? but if it has this privilege, the senate is also invested with it as part of the legislature; and, in exercising it on the present question, we shall be likely to differ. if the constitution is silent, and gentlemen admit this, it is possible the senate may view it with a favorable eye to their own right, and reject the bill on account of this clause. a great deal of mischief has arisen in the several states, by the legislatures undertaking to decide constitutional questions. sir, it is the duty of the legislature to make laws; your judges are to expound them. mr. gerry.--some gentlemen consider this as a question of policy; but to me it appears a question of constitutionality, and i presume it will be determined on that point alone. the best arguments i have heard urged on this occasion came from the honorable gentleman from virginia, (mr. madison.) he says the constitution has vested the executive power in the president; and that he has a right to exercise it under the qualifications therein made. he lays it down as a maxim, that the constitution vesting in the president the executive power, naturally vests him with the power of appointment and removal. now i would be glad to know from that gentleman by what means we are to decide this question. is his maxim supported by precedent drawn from the practice of the individual states? the direct contrary is established. in many cases the executives are not in particular vested with the power of appointment; and do they exercise that power by virtue of their office? it will be found that other branches of the government make appointments. how then can gentlemen assert that the powers of appointment and removal are incident to the executive department of government? to me it appears at best but problematical. neither is it clear to me that the power that appoints naturally possesses the power of removal. as we have no certainty on either of these points, i think we must consider it as established by the constitution. it appears very clear to me, that however this power may be distributed by the constitution, the house of representatives have nothing to do with it. why then should we interfere in the business? are we afraid that the president and senate are not sufficiently informed to know their respective duties? our interposition argues that they want judgment, and are not able to adjust their powers without the wisdom of this house to assist them; to say the least on this point, it must be deemed indelicate for us to intermeddle with them. if the fact is, as we seem to suspect, that they do not understand the constitution, let it go before the proper tribunal; the judges are the constitutional umpires on such questions. why, let me ask gentlemen, shall we commit an infraction of the constitution for fear the senate or president should not comply with its directions? mr. ames.--when this question was agitated at a former period, i took no part in the debate. i believe it was then proposed, without any idea or intention of drawing on a lengthy discussion, and to me it appeared to be well understood and settled by the house; but since it has been reiterated and contested again, i feel it my bounden duty to deliver the reasons for voting in the manner i then did, and shall now do. mr. chairman, i look upon every question which touches the constitution as serious and important, and therefore worthy of the fullest discussion, and the most solemn decision. i believe, on the present occasion, we may come to something near certainty, by attending to the leading principles of the constitution. in order that the good purposes of a federal government should be answered, it was necessary to delegate considerable powers; and the principle upon which the grant was made, intended to give sufficient power to do all possible good, but to restrain the rulers from doing mischief. the constitution places all executive power in the hands of the president, and could he personally execute all the laws, there would be no occasion for establishing auxiliaries; but the circumscribed powers of human nature in one man, demand the aid of others. when the objects are widely stretched out, or greatly diversified, meandering through such an extent of territory as that the united states possess, a minister cannot see with his own eyes every transaction, or feel with his hands the minutiæ that pass through his department. he must therefore have assistants. but in order that he may be responsible to his country, he must have a choice in selecting his assistants, a control over them, with power to remove them when he finds the qualifications which induced their appointment cease to exist. there are officers under the constitution who hold their office by a different tenure--your judges are appointed during good behavior; and from the delicacy and peculiar nature of their trust, it is right it should be so, in order that they may be independent and impartial in administering justice between the government and its citizens. but the removability of the one class, or immovability of the other, is founded on the same principle, the security of the people against the abuse of power. does any gentleman imagine that an officer is entitled to his office as to an estate? or does the legislature establish them for the convenience of an individual? for my part i conceive it intended to carry into effect the purposes for which the constitution was intended. the executive powers are delegated to the president, with a view to have a responsible officer to superintend, control, inspect, and check the officers necessarily employed in administering the laws. the only bond between him and those he employs, is the confidence he has in their integrity and talents; when that confidence ceases, the principal ought to have power to remove those whom he can no longer trust with safety. if an officer shall be guilty of neglect or infidelity, there can be no doubt but he ought to be removed; yet there may be numerous causes for removal which do not amount to a crime. he may propose to do a mischief; but i believe the mere intention would not be cause of impeachment. he may lose the confidence of the people upon suspicion, in which case it would be improper to retain him in service; he ought to be removed at any time, when, instead of doing the greatest possible good, he is likely to do an injury to the public interest by being continued in the administration. i presume gentlemen will generally admit that officers ought to be removed when they become obnoxious; but the question is, how shall this power be exercised? it will not, i apprehend, be contended, that all officers hold their offices during good behavior. if this be the case, it is a most singular government. i believe there is not another in the universe that bears the least semblance to it in this particular; such a principle, i take it, is contrary to the nature of things. but the manner how to remove is the question. if the officer misbehaves, he can be removed by impeachment; but in this case is impeachment the only mode of removal? it would be found very inconvenient to have a man continued in office after being impeached, and when all confidence in him was suspended or lost. would not the end of impeachment be defeated by this means? if mr. hastings, who was mentioned by the gentleman from delaware (mr. vining) preserved his command in india, could he not defeat the impeachment now pending in great britain? if that doctrine obtains in america, we shall find impeachments come too late; while we are preparing the process, the mischief will be perpetrated, and the offender will escape. i apprehend it will be as frequently necessary to prevent crimes as to punish them; and it may often happen that the only prevention is by removal. the superintending power possessed by the president, will perhaps enable him to discover a base intention before it is ripe for execution. it may happen that the treasurer may be disposed to betray the public chest to the enemy, and so injure the government beyond the possibility of reparation; should the president be restrained from removing so dangerous an officer, until the slow formality of an impeachment was complied with, when the nature of the case rendered the application of a sudden and decisive remedy indispensable? but it will, i say, be admitted, that an officer may be removed. the question then is, by whom? some gentlemen say by the president alone; and others, by the president, by and with the advice of the senate. by the advocates of the latter mode, it is alleged, that the constitution is in the way of the power of removal being by the president alone. if this is absolutely the case, there is an end to all further inquiry. but before we suffer this to be considered as an insuperable impediment, we ought to be clear that the constitution prohibits him the exercise of what, on a first view, appears to be a power incident to the executive branch of the government. the gentleman from virginia (mr. madison) has made so many observations to evince the constitutionality of the clause, that it is unnecessary to go over the ground again. i shall therefore confine myself to answer only some remarks made by the gentleman from south carolina, (mr. smith.) the powers of the president are defined in the constitution; but it is said, that he is not expressly authorized to remove from office. if the constitution is silent also with respect to the senate, the argument may be retorted. if this silence proves that the power cannot be exercised by the president, it certainly proves that it cannot be exercised by the president, by and with the advice and consent of the senate. the power of removal is incident to government; but not being distributed by the constitution, it will come before the legislature, and, like every other omitted case, must be supplied by law. mr. livermore.--i am for striking out this clause, mr. chairman, upon the principles of the constitution, from which we are not at liberty to deviate. the honorable gentleman from massachusetts, (mr. sedgwick,) calls the minister of foreign affairs the creature of the law, and that very properly; because the law establishes the office, and has the power of creating him in what shape the legislature pleases. this being the case, we have a right to create the office under such limitations and restrictions as we think proper, provided we can obtain the consent of the senate; but it is very improper to draw as a conclusion, from having the power of giving birth to a creature, that we should therefore bring forth a monster, merely to show we had such power. i call that creature a monster that has not the proper limbs and features of its species. i think the creature we are forming is unnatural in its proportions. it has been often said, that the constitution declares the president, by and with the advice and consent of the senate, shall appoint this officer. this, to be sure, is very true, and so is the conclusion which an honorable gentleman (mr. white) from virginia drew from it, that an officer must be discharged in the way he was appointed. i believe, mr. chairman, this question depends upon a just construction of a short clause in the constitution. "the president shall have power, by and with the advice and consent of the senate, to appoint ambassadors, other public ministers and consuls, judges of supreme court, and all other officers of the united states." here is no difference with respect to the power of the president to make treaties and appoint officers, only it requires in the one case a larger majority to concur than in the other. i will not by any means suppose that gentlemen mean, when they argue in favor of removal by the president alone, to contemplate the extension of the power to the repeal of treaties; because, if they do, there will be little occasion for us to sit here. but let me ask these gentlemen, as there is no real or imaginary distinction between the appointment of ambassadors and ministers, or secretaries of foreign affairs, whether they mean that the president should have the power of recalling or discarding ambassadors and military officers, for the words in the constitution are "all other officers," as well as he can remove your secretary of foreign affairs. to be sure, they cannot extend it to the judges; because they are secured under a subsequent article, which declares they shall hold their offices during good behavior; they have an inheritance which they cannot be divested of, but on conviction of some crime. but i presume gentlemen mean to apply it to all those who have not an inheritance in their offices. in this case, it takes the whole power of the president and senate to create an officer, but half the power can uncreate him. surely a law passed by the whole legislature cannot be repealed by one branch of it; so i conceive, in the case of appointments, it requires the same force to supersede an officer as to put him in office. i acknowledge, that the clause relative to impeachment is for the benefit of the people; it is intended to enable their representatives to bring a bad officer to justice who is screened by the president; but i do not conceive, with the honorable gentleman from south carolina, (mr. smith,) that it by any means excludes the usual ways of superseding officers. it is said in the constitution, that the house shall have the power of choosing their own officers. we have chosen a clerk, and, i am satisfied, a very capable one; but will any gentleman contend we may not discharge him and choose another and another as often as we see cause? and so it is in every other instance; where they have the power to make, they have likewise the power to unmake. it will be said by gentlemen, that the power to make does not imply the power of unmaking; but i believe they will find very few exceptions in the united states. mr. sherman.--i wish, mr. chairman, that the words may be left out of the bill, without giving up the question either way as to the propriety of the measure. many of the honorable gentlemen who advocate this clause have labored to show that the president has, constitutionally, the power of removal. if this be a well-founded opinion, they ought not to let the words remain in the bill, because they are of such a nature as to imply that he had not the power before it was granted him by the law. if gentlemen would consent to make a general law, declaring the proper mode of removal, i think we should acquire a greater degree of unanimity, which, on this occasion, must be better than carrying the question against a large minority. the call for the question being now very general, it was put, shall the words "to be removable by the president," be struck out? it was determined in the negative; being yeas , nays . wednesday, june . _department of foreign affairs._ the engrossed bill "for establishing an executive department, to be denominated the department of foreign affairs," was read the third time. mr. sumter.--this bill appears to my mind so subversive of the constitution, and in its consequences so destructive to the liberties of the people, that i cannot consent to let it pass without expressing my detestation of the principle it contains. i do it in this public manner, in order to fulfil what i think to be my duty to my country, and to discharge myself of any concern in a matter that i do not approve. mr. page discovered the fate of the bill; he knew it must pass, but, nevertheless, he would decidedly give it his negative, and he hoped the respectable minority which he had the honor of voting with hitherto on the question of removability, would unite with him firmly in their opposition; and in order to record to their constituents the sentiments they maintained, he moved to take the question by the yeas and nays. one-fifth of the members present joined in requiring the yeas and nays; whereupon they were taken, and are, yeas.--messrs. ames, benson, boudinot, brown, burke, cadwalader, carroll, clymer, contee, fitzsimons, gilman, goodhue, griffin, hartley, heister, huger, lawrence, lee, madison, moore, muhlenberg, schureman, scott, sedgwick, seney, sinnickson, sylvester, trumbull, and vining.-- . nays.--messrs. coles, gerry, grout, hathorn, huntington, jackson, leonard, livermore, matthews, page, parker, partridge, van rensselaer, sherman, smith, of maryland, smith, of south carolina, stone, sturgis, sumter, thatcher, tucker, and white.-- . so the question was determined in the affirmative, and the clerk directed to carry the bill to the senate, and desire their concurrence. _department of war._ the house then went into a committee on the bill for establishing the department of war. mr. trumbull in the chair. mr. benson proposed, with respect to the secretary's being removable by the president, a similar amendment to that which had been obtained in the bill establishing the department of foreign affairs. mr. sherman thought it unnecessary to load this bill with any words on that subject; he conceived the gentleman ought to be satisfied with having had the principle established in the other bill. mr. page was of the same opinion, but further thought it argued a doubt, even in the mind of the majority, of the truth of their principles, and they wanted, by repetition, to force that upon the mind which was not impressed by right reason. the question on the amendment was taken without further debate, and carried in the affirmative, twenty-four to twenty-two. some other small alterations being made, the committee rose, and reported the bill as amended; which being partly considered, the house adjourned. thursday, june . _department of war._ the house resumed the consideration of the amendments reported by the committee of the whole to the bill for establishing the war department; which being agreed to, the bill was ordered to be engrossed. _treasury department._ the house then resolved itself into a committee of the whole on the bill for establishing the treasury department, mr. trumbull in the chair. the second clause being under consideration, mr. page objected to the words making it the duty of the secretary to "digest and report plans for the improvement and management of the revenue, and the support of the public credit;" observing that it might be well enough to enjoin upon him the duty of making out and preparing estimates; but to go any further would be a dangerous innovation upon the constitutional privilege of this house; it would create an undue influence within these walls, because members might be led, by the deference commonly paid to men of abilities, who give an opinion in a case they have thoroughly studied, to support the minister's plan, even against their own judgment. nor would the mischief stop here; it would establish a precedent which might be extended, until we admitted all the ministers of the government on the floor, to explain and support the plans they have digested and reported: thus laying a foundation for an aristocracy or a detestable monarchy. mr. tucker.--the objection made by the gentleman near me is, undoubtedly, well founded. i think it proper to strike out all the words alluded to, because the following are sufficient to answer every valuable purpose, namely, "to prepare and report estimates of the public revenue and public expenditures." if we authorize him to prepare and report plans, it will create an interference of the executive with the legislative powers; it will abridge the particular privilege of this house; for the constitution expressly declares, that all bills for raising revenue shall originate in the house of representatives. how can the business originate in this house, if we have it reported to us by the minister of finance? all the information that can be required, may be called for, without adopting a clause that may undermine the authority of this house, and the security of the people. the constitution has pointed out the proper method of communication between the executive and legislative departments; it is made the duty of the president to give, from time to time, information to congress of the state of the union, and to recommend to their consideration such measures as he shall judge necessary and expedient. if revenue plans are to be prepared and reported to congress, here is the proper person to do it; he is responsible to the people for what he recommends, and will be more cautious than any other person to whom a less degree of responsibility is attached. under this clause, you give the secretary of the treasury a right to obtrude upon you plans, not only undigested, but even improper to be taken up. i hope the house is not already weary of executing and sustaining the powers vested in them by the constitution; and yet it would argue that we thought ourselves less adequate to determine than any individual what burthens our constituents are equal to bear. this is not answering the high expectations that were formed of our exertions for the general good, or of our vigilance in guarding our own and the people's rights. in short, mr. chairman, i can never agree to have money bills originated and forced upon this house by a man destitute of legislative authority, while the constitution gives such power solely to the house of representatives; for this reason, i cheerfully second the motion for striking out the words. mr. benson.--if the proposed amendment prevail, the bill will be nearly nugatory. the most important service that can be rendered by a gentleman who is at the head of the department of finance, is that of digesting and reporting plans for the improvement of the revenue, and supporting public credit; and, for my part, i shall despair of ever seeing your revenue improved, or the national credit supported, unless the business is submitted into the hands of an able individual. i thought this subject was well understood, from the debate on the original motion. it was then insisted upon by an honorable gentleman, mr. gerry, who opposed the appointment of a secretary of the treasury, that his important duties ought to be "to consider of the means of improving the revenue, and introducing economy into the expenditures, and to recommend general systems of revenue." now, what more than this is required by the clause? for my part, i am at a loss to see how the privilege of the house is infringed. can any of the secretary's plans be called bills? will they be reported in such a form even? but admitting they were, they do not become bills, unless they are sanctioned by the house; much less is the danger that they will pass into laws without full examination by both houses and the president. from this view of the subject, so far is the clause from appearing dangerous, that i believe it discovers itself to be not only perfectly safe, but essentially necessary; and without it is retained, the great object of the bill will be defeated. mr. goodhue.--we certainly carry our dignity to the extreme, when we refuse to receive information from any but ourselves. it must be admitted, that the secretary of the treasury will, from the nature of his office, be better acquainted with the subject of improving the revenue or curtailing expense, than any other person; if he is thus capable of affording useful information, shall we reckon it hazardous to receive it? for my part, when i want to attain a particular object, i never shut my ears against information likely to enable me to secure it. mr. page.--i can never consent to establish, by law, this interference of an executive officer in business of legislation; it may be well enough in an absolute monarchy, for a minister to come to a parliament with his plans in his hands, and order them to be enregistered or enacted; but this practice does not obtain even in a limited monarchy like britain. the minister there, who introduces his plans, must be a member of the house of commons. the man would be treated with indignation, who should attempt in that country to bring his schemes before parliament in any other way. now, why we, in the free republic of the united states, should introduce such a novelty in legislation, i am at a loss to conceive. the constitution expressly delegates to us the business of the revenue; our constituents have confidence in us, because they suppose us acquainted with their circumstances; they expect, in consequence of this knowledge, we will not attempt to load them with injudicious or oppressive taxes; but they have no such security, if we are blindly to follow perhaps an unskilful minister. it does not answer me, mr. chairman, to say the house has a right of deliberating and deciding upon these plans, because we may be told, if you prune away this part or that part of the system, you destroy its efficiency. therefore we must act with caution; we must either take or reject the whole; but if we reject the whole, sir, we are to depend upon ourselves for a substitute. how are we to form one? for my part, i should not despair, that the united wisdom of this house could procure one; but if we are to do this in the second instance, why cannot we attempt it in the first? i have no objection to our calling upon this or any other officer for information; but it is certainly improper to have him authorized by law to intrude upon us whatever he may think proper. i presume, sir, it is not supposed by the worthy gentleman from new york (mr. benson) that we shall be at a loss to conceive what information would be useful or proper for us to require, that we must have this officer to present us with what he chooses. when the president requires an opinion of him, the constitution demands him to give it; so under the law, let him send his opinion in here when it is asked for. if any further power is given him, it will come to this at last: we, like the parliament of paris, shall meet to register what he dictates. either these reports of the secretary are to have weight, or they are not; if they are to have weight, the house acts under a foreign influence, which is altogether improper and impolitic; if they are to have no weight, we impose a useless duty upon the officer, and such as is no mark of our wisdom. mr. ames hoped the subject might be treated with candor and liberality; he supposed the objections were made on those principles, and therefore required a serious answer. the worthy gentleman who first expressed his aversion to the clause seemed to be apprehensive that the power of reporting plans by the secretary would be improper, because it appeared to him to interfere with the legislative duty of the house, which the house ought not to relinquish. whenever it is a question, mr. speaker, said he, whether this house ought, or ought not, to establish offices to exercise a part of the power of either branch of the government, there are two points which i take into consideration, in order to lead my mind to a just decision; first, whether the proposed disposition is useful; and, second, whether it can be safely guarded from abuse. now i take it, sir, that the house by their order for bringing in a bill to establish the treasury department in this way, have determined the point of utility; or, have they erred in adopting that opinion, i will slightly make an inquiry, how does it tend to general utility? the secretary is presumed to acquire the best knowledge of the subject of finance of any member of the community. now, if this house is to act on the best knowledge of circumstances, it seems to follow logically that the house must obtain evidence from that officer; the best way of doing this will be publicly from the officer himself, by making it his duty to furnish us with it. it will not be denied, sir, that this officer will be better acquainted with his business than other people can be. it lies within his department to have a comprehensive view of the state of the public revenues and expenditures. he will, by his superintending power over the collection, be able to discover abuses, if any, in that department, and to form the most eligible plan to remedy or prevent the evil. from his information respecting money transactions, he may be able to point out the best mode for supporting the public credit; indeed, these seem to me to be the great objects of his appointment. mr. livermore.--i shall vote for striking out the clause, because i conceive it essentially necessary so to do. the power of originating money bills within these walls, i look upon as a sacred deposit which we may neither violate nor divest ourselves of, although at first view it may appear of little importance who shall form a plan for the improvement of the revenue. although every information tending to effect this great object may be gratefully received by this house, yet it behoves us to consider to what this clause may lead, and where it may terminate. might it not, by construction, be said that the secretary of the treasury has the sole right of digesting and reporting plans for the improvement of the revenue? this construction may appear a little extraordinary, but it is not more so than some constructions heretofore put upon other words; but however extraordinary it may be, it may take place, and i think the best way to avoid it, will be to leave out the words altogether. it is certainly improper that any person, not expressly intrusted by our constituents with the privilege of taking their money, should direct the quantum and the manner in which to take it. mr. sedgwick.--if the principle prevails for curtailing this part of the secretary's duty, we shall lose the advantages which the proposed system was intended to acquire. the improvement and management of the revenue is a subject that must be investigated by a man of abilities and indefatigable industry, if we mean to have our business advantageously done. if honorable gentlemen will for a moment consider the peculiar circumstances of this country, the means of information attainable by the individual members of this house, and compare them with the object they have to pursue, they will plainly perceive the necessity of calling to their aid the advantages resulting from an establishment like the one contemplated in the bill; if they weigh these circumstances carefully, their objections, i trust, will vanish. mr. boudinot.--a proper jealousy for the liberty of the people is commendable in those who are appointed and sworn to be its faithful guardians; but when this spirit is carried so far as to lose sight of its object, and instead of leading to avoid, urges on to the precipice of ruin, we ought to be careful how we receive its impressions. so far is the present measure from being injurious to liberty, that it is consistent with the true interest and prosperity of the community. are gentlemen apprehensive we shall be led by this officer to adopt plans we should otherwise reject? for my part, i have a better opinion of the penetration of the representation of the people than to dread any such visionary phantom. let us consider whether this power is essentially necessary to the government. i take it to be conceded by the gentlemen, that it is absolutely so. they say they are willing to receive the information because it may be serviceable, but do not choose to have it communicated in this way. if the secretary of the treasury is the proper person to give the information, i can see no other mode of obtaining it that would be so useful. do gentlemen mean that he shall give it piecemeal, by way of question and answer? this will tend more to mislead than to inform us. if we would judge upon any subject, it would be better to have it in one clear and complete view, than to inspect it by detachments; we should lose the great whole in the minutiæ, and, instead of a system, should present our constituents with a structure composed of discordant parts, counteracting and defeating the operation of each other's properties. mr. hartley rose to express his sentiments, as he did on every occasion, with diffidence in his own abilities; but he looked upon the clause as both unsafe and inconsistent with the constitution. he thought the gentleman last up proved too much by his arguments; he proved that the house of representatives was, in fact, unnecessary and useless; that one person could be a better judge of the means to improve and manage the revenue, and support the national credit, than the whole body of congress. this kind of doctrine, mr. chairman, is indelicate in a republic, and strikes at the root of all legislation founded upon the great democratic principle of representation. it is true, mistakes, and very injurious ones, have been made on the subject of finance by some state legislatures; but i would rather submit to this evil, than, by my voice, establish tenets subversive of the liberties of my country. notwithstanding what i have said, i am clearly of opinion it is necessary and useful to take measures for obtaining other information than what members can acquire in their characters as citizens; therefore, i am in favor of the present bill; but i think these words too strong. if it was modified so as to oblige him to have his plans ready for this house when they are asked for, i should be satisfied; but to establish a legal right in an officer to obtrude his sentiments perpetually on this body is disagreeable, and it is dangerous, inasmuch as the right is conveyed in words of doubtful import, and conveying powers exclusively vested by the constitution in this house. mr. gerry expressed himself in favor of the object of the clause; that was, to get all the information possible for the purpose of improving the revenue, because he thought this information would be much required, if he judged from the load of public debt, and the present inability of the people to contribute largely towards its reduction. he could not help observing, however, the great degree of importance they were giving this, and the other executive officers. if the doctrine of having prime and great ministers of state was once well established, he did not doubt but we should soon see them distinguished by a green or red ribbon, or other insignia of court favor and patronage. he wished gentlemen were aware of what consequences these things lead to, that they might exert a greater degree of caution. the practice of parliament in britain is first to determine the sum they will grant, and then refer the subject to a committee of ways and means: this might be a proper mode to be pursued in this house. do gentlemen, said he, consider the importance of the power they give the officer by the clause? is it not part of our legislative authority? and does not the constitution expressly declare that the house solely shall exercise the power of originating revenue bills? now, what is meant by reporting plans? it surely includes the idea of originating money bills, that is, a bill for improving the revenue, or, in other words, for bringing revenue into the treasury. for if he is to report plans, they ought to be reported in a proper form, and complete. this is giving an indirect voice in legislative business to an executive officer. if this be not the meaning of the clause, let gentlemen say what is, and to what extent it shall go; but if my construction is true, we are giving up the most essential privilege vested in us by the constitution. but what does this signify? the officer is responsible, and we are secure. this responsibility is made an argument in favor of every extension of power. i should be glad to understand the term. gentlemen say the secretary of the treasury is responsible for the information he gives the house--in what manner does this responsibility act? suppose he reports a plan for improving the revenue, by a tax which he thinks judicious, and one that will be agreeable to the people of the united states; but he happens to be deceived in his opinion, that his tax is obnoxious, and excites a popular clamor against the minister--what is the advantage of his responsibility? nothing. few men deserve punishment for the error of opinion; all that could be done would be to repeal the law, and be more cautious in future in depending implicitly on the judgment of a man who had led us into an impolitic measure. suppose the revenue should fall short of his estimate, is he responsible for the balance? this will be carrying the idea further than any government hitherto has done. what then is the officer to be responsible for, which should induce the house to vest in him such extraordinary powers? mr. lawrence.--i do not see consequences so dangerous as some gentlemen seem to apprehend; nor did they appear to them, i believe, when the subject was last under consideration. i recollect, mr. chairman, that some difficulty was made about establishing this office, because it was feared we could not find men of sufficient abilities to fill it. the duties were then properly deemed of a high and important nature, and enumerated as those proposed in the bill. it was supposed by an honorable gentleman, that the powers here expressed might be lodged in a board, because an individual was incompetent to undertake the whole. but now we have the wonderful sagacity of discovering, that if an individual is appointed, he will have capacity to form plans for improving the revenue in such an advantageous manner, as to supersede the necessity of having the representatives of the people consulted on the business: he will not only perform the usual duties of a treasury board, but be adequate to all purposes of legislation. i appeal to the gentleman for his usual candor on this occasion, which will assure us that he has wire-drawn his arguments. mr. madison.--after hearing and weighing the various observations of gentlemen, i am at a loss to see where the danger lies. these are precisely the words used by the former congress, on two occasions, one in , the other in a subsequent ordinance, which established the revenue board. the same power was also annexed to the office of superintendent of finance, but i never yet heard that any inconvenience or danger was experienced from the regulation; perhaps, if the power had been more fully and frequently exercised, it might have contributed more to the public good. there is a small probability, though it is but small, that an officer may derive a weight from this circumstance, and have some degree of influence upon the deliberations of the legislature; but compare the danger likely to result from this clause, with the danger and inconvenience of not having well-formed and digested plans, and we shall find infinitely more to apprehend. inconsistent, unproductive, and expensive schemes, will be more injurious to our constituents than the undue influence which the well-digested plans of a well-informed officer can have. from a bad administration of the government, more detriment will arise than from any other source. the want of information has occasioned much inconvenience and unnecessary burthens under some of the state governments. let it be our care to avoid those rocks and shoals in our political voyage, which have injured, and nearly proved fatal to, many of our cotemporary navigators. a gentleman has asked, what is meant by responsibility? i will answer him. there will be responsibility in point of reputation, at least a responsibility to the public opinion with respect to his abilities; and supposing there is no personal responsibility, yet we know that men of talents and ability take as much care for the preservation of their reputation as any other species of property of which they are possessed. if a superior degree of wisdom is expected to be displayed by them, they take pains to give proofs that they possess it in the most unequivocal manner; this of itself will ensure us no small degree of exertion. with respect to originating money bills, the house has the sole right to do it; but if the power of reporting plans can be construed to imply the power of originating revenue bills, the constitution is inconsistent with itself, in giving the president authority to recommend such measures as he may think expedient or necessary; but the construction is too unnatural to require further investigation. i have admitted there is a small probability of a small inconvenience, but i do not think it any more an argument against the clause, than it would be an argument against having windows in a house, that it is possible the wind and the rain may get in through the crevices. mr. stone was not afraid of giving the officer the power of reporting plans, because he was sure congress would, in every case, decide upon their own judgment. a future congress would not pay such a deference, even to their predecessors, as to follow in their footsteps, unless they were convinced of the good policy of their measures. he thought if the house wanted to make use of the information acquired by the secretary, they ought to give him notice of their intention; consequently, something of this kind was proper in the bill. mr. sherman thought the principle held up by the clause, was absolutely necessary to be received. it was of such a nature as to force itself upon them; therefore it was in vain to attempt to elude it by subterfuge. it was owing to the great abilities of a financier, that france had been able to make the exertions we were witnesses of a few years ago, without embarrassing the nation. this able man, after considerably improving the national revenue, was displaced; but such was the importance of the officer, that he has been restored again. mr. _baldwin_.--i do not see what we are guarding against by striking out the words, unless gentlemen mean to go so far as to introduce a prohibitory clause, and declare that the secretary of the treasury shall be restrained from digesting or preparing plans for the improvement of the revenue. if there is any evil in having him attend to this branch of the business, i cannot see how to avoid it. suppose the officer is a bad man, and there are others like him in this house, (for this must be what the gentlemen are afraid of;) and suppose he has prepared a scheme for peculation, which he hopes to get adopted by making dupes of the honest part; how are you to hinder it from being brought forward? cannot his friends introduce it as their own, by making and seconding a motion for that purpose? will you restrain him from having access to the members out of doors? and cannot he infuse his dangerous and specious arguments and information into them as well in the closet, as by a public and official communication? but, mr. chairman, can this house, or if it can, will it prevent any of their constituents from bringing before them plans for the relief of grievances or oppressions? every individual of the community can bring business before us by petition, memorial, or remonstrance, provided it be done in a decent manner. how then do you propose to restrain the secretary of the treasury? i think the clause is very well as it stands, and shall therefore be against the amendment. mr. page's motion for striking out the clause being put and negatived: the question on mr. fitzsimon's motion to amend the bill, by striking out the word report, and inserting prepare, was taken and carried by a great majority. after which the house adjourned. friday, june . a number of the members attending the interesting conference which to-day took place with the senate on the impost and tonnage bills, no business was done in this house. _saturday_, june . _revenue bill._ mr. _boudinot_, from the managers on the part of this house in the conference with the senate on the subject of the amendments to the impost bill, reported that the conference had agreed to pass the bill as amended by the senate, with some additional amendments, viz: the duty on distilled spirits of jamaica proof, to be reduced from fifteen cents to ten cents per gallon. the duty on all other spirits, to be reduced from twelve to eight cents per gallon. the duty on beer, ale, porter, or cider, imported in casks, from eight to five cents per gallon. the duty on beer imported in bottles, from twenty-five to twenty cents per gallon. the duty on coal, from three to two cents per bushel. monday, july . _western lands._ the house resolved itself into a committee of the whole on the state of the union. mr. boudinot in the chair. mr. scott requested that the report of the committee on the western territory might be read, which was read accordingly, as follows: _resolved_, that it is the opinion of this committee, that an act of congress should pass for establishing a land office, and to regulate the terms of granting vacant and unappropriated lands in the western territory. mr. scott.--in endeavoring, sir, to open the interesting subject now before you, i shall avoid the repetition of those ideas which i threw out on a former occasion, as far as my memory will serve me, and the nature of the subject will permit. this subject, sir, will appear of great magnitude in point of interest, if we consider the extent of the territory; i think i shall not be far beyond the mark, if i say it is one thousand miles long by five hundred broad; nor if i say it is sufficient to contain two millions of farms; nevertheless, for greater caution, say it will contain one million, (which is notoriously and greatly within the real contents,) and that each of these farms may be peopled by six souls, they will amount to six millions of inhabitants, double the number of the present inhabitants of the united states. from this view, it is an object of great concern. it will appear also an object of concern, if we contemplate the climate, the soil, and the waters of that country; consider that it lies in the heart of the temperate zone; its soil infinitely more rich and more fertile than any in the atlantic states; its waters pure and good--in a word, it is such a territory as must command inhabitants, and will be peopled. its situation in the middle of our continent, gives the climate a salubrity that accommodates it to the emigrants from both northern and southern states. it is meeting them on a middle ground, softening the harsh restrictions of the rugged north, and breathing bland the zephyr grateful to the sun-scorched south. in short, it is such as gives to all who have seen it the utmost satisfaction--it is both healthy and agreeable. it may perhaps be objected, that the measure now proposed will lead or tend to a depopulation of the atlantic states, and therefore ought not to be adopted. this is a circumstance i by no means wish. i am as far from desiring a depopulation of the atlantic shores, as i am from fearing it on this ground. i am confident it will not operate in any considerable degree to bring about that event; but if it should be thought it would, that could be no solid objection against the measure. whilst the desire of emigration continues, and lands are to be procured, settlers will find their way into that territory; nor is it in the power of congress to withhold lands altogether, because they are to be got of others on better terms. there is superior encouragement held out to the people settling on the other side of the river mississippi, where the soil is fertile, and the climate equally agreeable. in proof of this assertion, i will read to the committee the translation of a kind of proclamation issued by the governor of the spanish posts at the illinois. [this paper contains an invitation to all persons inclined to settle in the western country, offering as inducements, lands without charge, exemptions from taxes, protection in civil and religious liberties, besides provision and the implements of husbandry.] after this, mr. s. proceeded: now, sir, if congress fear to sell their lands lest it tend to depopulate the atlantic states, what must they apprehend from propositions like these? they will certainly have all the effect which encouragement from this quarter can have. it may be said, that americans will not venture to live under the spanish government, or settle a spanish colony. to this it may be replied, that when people, from their necessities or inclinations, are determined to emigrate, in order to mitigate their distresses, they think little of the form of government; all they care for is relief from their present or approaching wants and troubles. nobody will emigrate from the atlantic states but a certain description of men, and they will go whether you hold out this encouragement to them or not; they will pay little regard to congressional restrictions. and here let me make one remark, drawn from my own observation. the forming settlements in a wilderness upon the frontiers, between the savages and the least populated of the civilized parts of the united states, requires men of enterprising, violent, nay, discontented and turbulent spirits. such always are our first settlers in the ruthless and savage wild; they serve as pioneers to clear the way for the more laborious and careful farmer. these characters are already in that country by thousands, and their number is daily increasing, and will continue to increase; for congenial spirits will assimilate maugre all our endeavors to the contrary. but how will you prevent them? i should be glad to see a plan for hemming in the emigration to that territory; i think the thing wholly impracticable, therefore it becomes the immediate interest of congress, to direct the emigration to a proper point; direct it to their own territory, rather than be inactive spectators of its silent, though rapid course to the spanish and british dependencies; rather sell your lands and get something for them, than let your citizens leave your dominions. by improving a part, you add to the value of the remainder; their population will produce a hardy race of husbandmen and warriors, always at the command of the united states, to support and defend your liberty and property. these being facts, i leave it to the wisdom of the house to draw the inference. i will make one further remark, with respect to the encouragement or discouragement of emigration. suppose it was in the power of congress to stop the course of the impetuous current, which has already won its way through insuperable obstructions, and spread itself over the fertile lands of the ohio. i ask, with perfect security, if it is not such an act of contumacy, and inconsistency with the fundamental principles of the government, that congress could not adopt it? consider that many of your citizens are destitute of the comforts, nay, the common necessaries of life, without a prospect of providing for the subsistence of themselves and families: i ask, would congress prevent the emigration of such persons if they could? i think not; they would not act as kind protecting fathers to their people if they did. i presume this would be too serious an objection for any man to face, with a restraining proposition. i question if any man would be hardy enough to point out a class of citizens by name, that ought to be the servants of the community; yet, unless that is done, to what class of the people could you direct such a law? but if you passed such an act, it would be tantamount to saying that there is some class which must remain here, and by law must be obliged to serve the others, for such wages as they please to give. this being the case, let us make the best of liberty, our people, and our land. your citizens, i tell you, are already there by thousands; they are going by thousands more, and are every hour growing up into consequence. they never expect to return into the atlantic states; plant them in your soil, add this wealth of population to your own, and form an empire illustrious as it is extended. remember, ye sages of my country, an historic truth recorded for your instruction, that empire has been slowly, but invariably, moving from east to west; emigration has uniformly receded in that direction, from the time that our common parents quitted the garden of eden, till the present hour; nor doubt but it will continue to pursue that course, as long as there are lands to be inhabited. much will depend upon the energy and force of the government established in that country; it ought to be such as will furnish sufficient power for its own internal purposes, and also to secure it to the union. but that is not the only tie by which its union is held. that country is attached to the atlantic states by its natural situation. to be convinced of this truth, nothing more is necessary than to look upon the chart: all the commerce of that country must come through the states upon the sea-coast. we know, at pittsburg, that we are a thousand miles nearer to the market than settlers at the mouth of the ohio river. when we export our produce by that and the mississippi, we know we can get easier home with our returns by the way of philadelphia, than the others can by turning up and stemming the current of the mississippi. therefore, the imports for all that territory must come through the united states. from these considerations, i conclude it would be madness in the extreme for them to think of a separation, unless they were driven to it by a fatal necessity; they will be too sensible of its ill effects ever to attempt it. but suppose, for a moment, that they break off from the union, and even become our enemies, it would be good policy in us to get as much as we can from them first, especially as they are disposed to give it us; let us make them extinguish part of our national debt before they leave us. the soil and climate of that country, as i said before, will be great inducements for emigrants to settle there. if they were to break off, they would know how to get money enough from the sale of the territory to support their government, without any other resource whatever. if i, as a resident in that country, had the remotest view of a separation from the atlantic states, i should be sorry to see congress sell an acre of that land; for selling it, in that case, would be neither more nor less than preventing us from putting the money into our pockets when we became independent. if they meditate independency, the most likely way to make them so, will be to let their lands alone, in order to supply them with funds sufficient to support them in the measure. if they are sold, it will not be in their power. i apprehend it will be found that a land office will effect these objects better than any other plan that can be devised. if this should be effectual, and no doubt can be entertained but it will, the inhabitants of the united states cannot, with a good grace, be called upon for heavy taxes in order to pay the interest on a debt which can be so easily and properly extinguished. every individual who contemplates the subject, will see how much it is his interest to buy a few dollars in certificates, and purchase a piece of land with them, which will annihilate the debt, and prevent the demand for taxes to pay the interest; besides, it will remain as a security to reimburse the principal to the proprietor, as the population of the country extends; but, at all events, it would be but advancing four or five years' interest, and the whole debt would be absorbed. if we mean to sell our lands for ready money, or mean to trust, we have a superior advantage. it is more probable that the necessitous person who wants the land for the subsistence of himself and family, will labor harder to procure a property of this kind, and secure it for himself, than the speculator who never means to pay a farthing until he has received it from the sale of the land; besides, the necessitous person is better able to buy of government than of the speculator, because he can get it cheaper. the purchasers of large tracts retail out their land to this class of men, and certainly charge them something for their trouble. but if we sell on credit, as under the proprietary government was the practice in pennsylvania, those who take out small quantities get their land surveyed, and set themselves down; they cultivate the ground, and erect buildings for their own accommodation. land, in this improved state, furnishes a better security to government for any arrearage of purchase money, than a large tract sold on speculation, and which lies in the same state of nature as it did when it was disposed of, perhaps adding thereto the expense of making the survey. if the land must revert to congress at last for default of payment, we get nothing in the latter case; whereas, when sold in lots, if a man has settled himself down, and paid for his warrant and survey, which costs the union nothing, but for the first price and interest thereon, it must strike every gentleman's mind that it would be disagreeable, after a man had made a settlement for three or four years, to have to turn out. rather than do this, he would make every exertion to discharge the price: if his situation was so wretched as not to furnish the means, some of his neighbors, on such security, might befriend him; but at any rate government would be secure. by this argument, i do not mean to insist that congress should sell their lands on trust; they may do so, or sell for ready pay, as their wisdom may think eligible. i shall be satisfied either way. i think the convenience of the people is a subject not unworthy of being taken into view. my plan proposes that they should be able to perfect their titles on the spot. i fear not the objection which has been raised. it may be said, the titles ought not to be completed until it was done immediately under the eye of congress. let this be as it may, i will make one remark: can we not have every tie, every check, and security upon these officers that we have upon the collectors of the revenue? i think there is as much room for confidence in the one case as in the other. we can take care that the secretary of the land office shall send in his accounts of patents and warrants. i think we may depend here upon a true return. the receiver of the office shall take nothing but public securities, which are not quite so great a temptation to embezzlement or illicit practices as money. the surveyor will be a check upon both. i think the gentlemen employed in this business cannot be of very trifling character. in short, this department may be as well checked and balanced as any other; the expense of it will be nothing, because the officer may be supported out of the fees. this being the case, i shall conclude with moving that the committee adopt the resolution reported by the committee, and recommend it to the house to appoint a select committee to bring in a bill accordingly. mr. fitzsimons asked if it would not be better to settle all the principles of the bill first, that the select committee might not lose their labor, as had been once or twice experienced, for want of this precaution. he was in favor of some measure of this kind, though he had some doubts of the necessity there was supposed to be of establishing a land office. the question was now taken on the resolution, and agreed to. _compensation of the president, &c._ mr. vining wished to call the attention of the house to a business he apprehended not very lengthy; it was the report of a committee on the subject of compensation to be made to the president, vice president, the members of the senate and house of representatives, for their services; he wished gentlemen to consider the situation of every one concerned in this business, themselves, and the continent at large. he hoped they would consent to take it up, and he flattered himself the discussion would not last longer than a day. mr. white wished to go into a committee of the whole on the business. mr. fitzsimons did not like to enter upon a lengthy discussion of a point that was incapable of much elucidation by reasoning; he therefore was against going into a committee at this stage of the business. he observed, that the committee had reported something, and the members had been pretty generally consulted on the same. he hoped the house would despatch the business without delay or loss of time, if they were at all inclined to take it up. mr. white thought it necessary to go into a committee, because there were a number of things mentioned, the reasons for which appeared to him very uncertain. mr. vining said it was a subject of considerable delicacy, and he supposed very few gentlemen would be inclined to speak three or four times on a point; yet this was all the advantage gained by going into a committee. he was no more interested than others; every gentleman might judge of his own case, but after it had been before a committee of twelve, in order to get the fullest sense of the house upon the subject, he was inclined to receive it without so much circumlocution. he observed, that the business had originated in a committee of the whole, and it was unusual to recommit it without showing some reasons why. mr. white gave up his motion for a committee of the whole, and said, before he consented to the report, he should be glad to know in what style it was expected that the president would live. he observed there was provision for the expenses of a house, furniture, secretaries, clerks, carriages and horses. perhaps the sum proposed might be too much or too little. he should like to see an estimate of how much was necessary for keeping the table, the equipage, &c. before he decided. he hoped the committee would elucidate this subject. there was another thing he wished to inquire of them. the vice president's salary was charged at five thousand dollars; he could not conceive upon what principle that sum was reported. did it bear a proportion to his services, or was it in proportion to what the members of the senate and this house were to be allowed? there is nothing which obliges him to be attentive to his business. no doubt but the gentleman who holds that office at present will be regardful and diligent in executing the business assigned him; yet there is nothing to prevent the vice president from residing at home and receiving his salary, without coming within the walls of the senate room. the union is obliged to support him; but i, said he, would make that support conditional; he should have a liberal provision while in public life, but no longer. as to delicacy, i know of none, sir, that ought to be used while we are in pursuit of the public good. i speak therefore with candor what are my sentiments on this subject. other gentlemen, no doubt, do the same; but i am clearly for examining into the principles before i agree to the conclusion. mr. page was sorry to see gentlemen spinning out the time to little purpose; certainly, after having the subject under consideration for nearly three months, they might be able to decide. if this business was fixed, and gentlemen knew they were to have but moderate salaries, it might perhaps tend to make them more expeditious; but at all events, they ought to know the rate at which they attend, in order to regulate their expenses. to some it might be a matter of no concern, because they could bear every thing of this kind for a twelvemonth, without inconvenience; but they ought to consider the situation of others. we are, said he, keeping the president here without any provision for his support; but in this we may think ourselves right, because, in his patriotic ardor, his love for his country, he told us he was willing to pursue that illustrious example which he set during the period of our calamity; he refused compensation for his services. but the constitution requires that he shall receive a compensation, and it is our duty to provide it. we must also provide something for our own expenses, or it may reduce gentlemen not better prepared than i am to depend upon a friend for what the public ought to furnish. mr. vining had said the subject was delicate, but he did not conceive there was any indelicacy in asking or answering questions on this or any other occasion, where the good of his country was concerned. mr. lawrence did not know, whether the sum proposed was enough for the president or not; but according to the terms of the constitution, it ought to be granted as one sum, because he is to receive no other emolument whatever from the united states, or either of them. now, if it is declared he shall receive twenty thousand dollars, and, exclusive of that sum, we make him an allowance for furniture, horses, carriages, &c., such an allowance is an emolument beyond the compensation contemplated in the constitution; but i have no objection to blend these sums together, declaring the whole to be the compensation required by the constitution. besides, if we establish salaries for his secretaries and clerks, we establish them officers of the government; this will be improper, because it infringes his right to employ a confidential person in the management of those concerns, for which the constitution has made him responsible. for these reasons, mr. l. moved to strike out all that related to horses, carriages, furniture, &c. mr. sherman thought it much better to give a net sum, because the president would then have no accounts to settle with the united states. mr. sedgwick considered this a constitutional question, and therefore thought it deserved serious investigation. the provision made in the report, for paying the expenses of enumerated articles, does not leave the president in the situation intended by the constitution, which was, that he should be independent of the legislature, during his continuance in office; that he should have a compensation for his services, not to be increased or diminished during that period; but there is nothing that will prevent us from making further allowances, provided that the twenty thousand dollars is all that is given as a compensation. by this construction, one of the most salutary clauses in the constitution will be rendered nugatory. from these considerations, he was led to believe that the report was founded on unconstitutional principles. mr. baldwin said, the committee of the whole, when the business was before them, had not determined any thing on this point; that, consequently, the select committee were to frame a report upon such principles as they judged proper. in order then to have every thing distinct and accurate, they had brought their opinion forward in the form it now appears. if it be deemed proper to grant an aggregate sum, the house would no doubt add to the twenty thousand dollars, what it was supposed these expenses would amount to. however, he did not think the constitution was infringed; it was intended that the compensation should not be increased or diminished, during the president's continuance in office. now it might be as well fixed, by making the allowance in part money, and part furniture, &c. as by declaring a precise sum; it will still be a stated compensation. mr. tucker thought furniture and plate ought always to be provided by government, because, if it was necessary for every new president to buy these articles, it might put him to great inconvenience, unless he received a year's salary in advance; besides, when he retired from his situation, they would not sell for half the first cost. he therefore wished this part of the report to stand, together with the rent of a house; but would join in striking out all the rest. mr. madison did not think the report interfered with either the spirit or letter of the constitution, and therefore was opposed to any alteration, especially with respect to the property of a fixed nature. he was sure, if the furniture and plate, and house rent, could be allowed, some of the other articles might also. the horses and carriages will cost money, and sell for little, after being used for four years; this will be a certain loss to the president, or his family; besides the house have already undertaken to defray expenses of this kind, and so set a precedent for the enumeration which had been reported. mr. white said, if a certain sum was assigned for the expenses, the report would be better; but as it now stood, there was no certainty in it. one president might circumscribe it to a quarter part of the expense another would; consequently, the compensation could not be fixed. he admitted the propriety of paying the salary in advance for the first year, as mentioned by the gentleman from south carolina. he expected this would be sufficient to defray the extra expenses, without subjecting the president to any inconvenience. mr. boudinot.--if the legislature may provide the house and furniture, they may go further on the same principle, and provide for the rest; he was satisfied it should be so, because it could be no infringement on the constitution. mr. livermore hoped the words would be struck out; indeed he was sorry they had ever been put in. the clause in the constitution is intended to tie down the legislature, as well as the president; they shall make him no compliments while in office, he shall receive nothing but a fixed compensation for his services. give him then this compensation, let it be equal to his usefulness; but do not direct him to employ so much to one use, and so much to another; it cannot be called a compensation when you direct how it is to be expended; besides, it was wrong on another account; why should we pretend to direct him in the style in which he shall live? let him have a salary, and expend it in the manner he shall think proper. mr. page was for striking out all the words, because he conceived it would be against the spirit of the constitution. it would be much more handsome to make one general provision, than to be thus particular in enumerating the articles of expense. it has been hinted, that these articles of expense would amount to half the sum mentioned in the report to be given as a compensation; if so, he would propose to strike out all that related to the subject, and so insert twenty-five or thirty thousand, as the house shall deem most eligible. mr. stone thought the president ought to be at liberty to live in any style he thought proper, and that the house ought to give him such compensation as they thought his services merited. if you furnish him with a house, horses, and carriages, you declare that this is the house, the horses, and the carriages which he shall use. there is certainly some degree of indelicacy in this; if he was a private gentleman, he would be at liberty to use such as he liked best. suppose he dislikes them, and will not have them, he is guilty of a breach of the law, is it intended by the house to impeach him for it? i apprehend it is not, for no part of the constitution gives us a right to dictate to him on this head. he would rather let the president set the example how he ought to live, than see the legislature direct him. economy is by no means disadvantageous to the united states; if the president chooses to live in an economical manner, we ought not to prevent him. mr. vining thought, as the president was the representative of the nation, that there ought to be a proper degree of dignity attached to the office; he did not wish for splendor, but hoped to avoid the appearance of penury. if he was right in this opinion, the house had a right to show what they expected of the president, and, consequently, had a right to enter into the enumeration proposed in the report, and establish a uniform rule of conduct in the presidential chair. with respect to its constitutionality, his mind was perfectly easy, the constitution appeared to be silent; if so, the house had the right of interfering. he wondered how gentlemen could agree to provide plate and furniture, yet hesitate with respect to the clerks and secretary. were not the latter as necessary as the former? if so, they ought to be equally provided for. the question on mr. lawrence's motion was now taken, and decided in the affirmative. mr. page now moved to strike out twenty thousand dollars, and insert thirty thousand. mr. smith inquired whether it was the intention of the house to saddle the president with the expense incurred, in consequence of their resolution of the th april. he understood that near ten thousand dollars had been laid out in purchasing furniture, and putting the house in order for his reception; it might be disagreeable to the president to take it. perhaps he would be a considerable loser by such a bargain, and many of the things might be of a nature he disliked. he thought the house had been inconsistent with itself in ordering these things for the president, and then refusing to let them be applied to his use. mr. sherman thought the house need not be embarrassed on this point. the expense is to be paid by the united states, and the furniture will be their property, to do what they please with. neither did he think the house inconsistent, because it was the object of the legislature, by their former vote, to provide only for the temporary accommodation of the president. mr. benson said, the business had been properly conducted. it was not in contemplation to throw the furniture or any other expense upon the president. he presumed the property belonged to the united states, but they would sell to the president such part as he chose to purchase. as to the house, the president was not confined to it; he might give it up when he pleased, and take another if he thought proper. the question on striking out twenty thousand and inserting thirty thousand was divided, and the first part was agreed to, but the latter rejected. it was now moved to strike out the words secretary and clerks. mr. madison thought the executive magistrate ought not to have the power of creating officers; yet if he appointed his secretary and clerks, and they were recognized, either with respect to salary or official acts, they became officers of the government. mr. benson did not think it necessary to recognize any such officers; they were to be esteemed the mere instruments of the president, and not as sharing in the administration. the motion was put, and carried in the affirmative, and then the house adjourned. thursday, july . _compensation of the president, &c._ the house resumed the consideration of the report of the committee on the compensation to the president, vice president, and members of congress. the blank occasioned by striking out on monday last, was now proposed to be filled. mr. livermore moved to fill it with , dollars. mr. burke said, there were some members of the committee in favor of , dollars; others indeed were for a much larger sum--he believed they went so far as , dollars; that , dollars was an accommodation, and as such he had agreed to it; but he was of opinion that , dollars was sufficient; that , had been once agreed to, but the expenses were added at a subsequent meeting of the committee; now, as the house had concurred in striking out , dollars, and a proposition was come forward more correspondent to his judgment, he should give it support. mr. fitzsimons presumed it was not a question before the house what the report of the committee had been, nor were the sentiments any gentleman had there delivered to operate against the sense expressed by the committee in their report; if any thing done in committee was to influence the decision of the house, it must be the report, which spoke the sense of the majority. he further presumed, that when the , dollars were struck out, after all the expense had been erased, it was in the contemplation of the honorable mover to increase the sum so as to include both articles. it was with this view he voted in favor of striking out the , dollars. mr. tucker said it might happen, that the expenses a president would incur at the first entering on the office would be so great as to injure his private fortune and distress his family. a quarter's salary might be insufficient to defray the expense; yet if the president continued but three months in office, this sum would be all he was entitled to. he thought it just and requisite to provide against accidents of this kind, if it could be done consistently with the constitution. with this object in view, he would propose that the president's compensation should be , dollars for the first year, and , dollars for every other year; that , dollars should be paid him in advance, on his coming to the chair, and the remainder in quarterly payments. its amount, he said, would be nearly what was proposed by the gentleman from new hampshire (mr. livermore); and if the house was disposed to fix on that sum, as a proper compensation, they might, without any material change, admit his proposition; but if they meant to grant either a greater or a less sum, he hoped they would accommodate it to his principle. mr. stone said, that a sum of , dollars would be as small a sum as would answer the purpose; and provided that amount should be agreed to, the expense of the executive would be less to the people than that of any government in the world. if it is considered that the unavoidable expense will be great, and that the assistance of two or more secretaries will be necessary for the president to discharge his high and important trust, and that it cannot be expected that persons in such a station should be in straitened or dependent circumstances, this sum will not be found to exceed the absolute expense, with a moderate compensation for the services of the president. it is also a maxim of sound policy, that executive officers should be independent. mr. white.--sir, i do not say that , dollars will or will not be sufficient; but in order to determine the necessary sum, i should wish to know the style in which the president is expected to live. if a style of magnificence and splendor is to be adopted, the sum is too small; and if economy is pursued, it may be too much. until this is known, it will be extremely difficult to decide upon a proper sum; and when i give my vote, i wish to give it on such information as will satisfy my mind with respect to its propriety, and show my constituents the reasonableness of the measure. will he live in a more expensive style than the former presidents of congress, or will he live nearly in the same? if so, what was that expense, or what will be the probable increase? how was that money applied, and what will now be necessary? if these questions can be answered, gentlemen may decide with more precision than they can while the subject is left afloat. mr. baldwin said, it was impossible to get the information the gentleman required, the committee had made all the examination in their power with respect to the actual expense of supporting the office. they found former presidents of congress, whose office, by the by, was less important, and whose assistants were less numerous, expended , , , , and so on to , dollars annually. from this, some gentlemen were led to believe , dollars might be sufficient in this instance. but we were, said he, left without any thing satisfactory on this subject, and when the question was pressed on the committee, they varied from , to , dollars; we were therefore obliged to average the sum. we were satisfied that it must be left to experiment to determine what the allowance ought to be; and we were certain that the gentleman who had to make the first experiment would do it in such a manner as to give satisfaction to every body. he knows the way to blend dignity and economy; and i would rather, on this account, make the allowance too much than too little. i would, therefore, prefer making the experiment at , dollars; a sum that, in the president's hands, will give umbrage to no one. mr. boudinot made some further observations respecting the examination made by the committee, from which it appeared that the expenses of the president of the united states would exceed the expenses of the late president of congress in a variety of cases. two secretaries would be wanting; they must be men of abilities and information; but the committee conceived extra provision would be made for them by the house. if the whole was to be comprehended in one grant to the president, he would rather increase the sum reported by the committee than diminish it. originally he was in favor of allowing , ; but then he thought the expense of secretaries, carriages, furniture, &c., was to be an additional allowance. since the house had determined otherwise, he favored an addition to the , dollars. mr. jackson was disposed to move , dollars; but he was willing to accommodate, and agree to , dollars. mr. vining observed, that the committee had no documents whereby they could form a judgment; they had no light to guide them. they could not foresee what ambassadors and foreign ministers might be sent to this country, nor the expenses the president must necessarily incur upon that account, to support the honor and dignity of the united states. he further remarked, that there are cases in which generosity is the best economy, and no loss is ever sustained by a decent support of the magistrate. a certain appearance of parade and external dignity is necessary to be supported. did i, said he, represent a larger state, i would speak with more confidence on the subject. we are haunted by the ghost of poverty; we are stunned with the clamor of complaint throughout the states. but under the auspices of an energetic government, our funds will be established and augmented, and, i make no doubt, will be found sufficient to answer all the purposes of the union. but our calculations ought not to be confined to the present moment alone. if it should be contended by any gentleman, that we have it not in our power to support the government in a proper style, then there is an end of the business. we should remember that the present time is the season for organizing the government. a patient and mature deliberation is requisite to investigate it, and by that means the amount of the civil list will be increased; in future, the sessions will be short, and the load of expense greatly diminished. he was opposed to any reduction of the sum, as he had always thought it too small, and would rather propose to fill the blank with , dollars. mr. page mentioned that , dollars had been proposed; though he thought the sum adequate, it was not sufficient to support pomp and parade. those, he said, were entirely out of the question. he had made a calculation upon the probable necessary expenses, and found, that exclusive of that dignity and pageantry talked of, this sum would suffice. if he had contemplated the splendor and pageantry alluded to, he should not have thought of , dollars, nor , dollars, for he believed , dollars insufficient. but if the committee, upon investigation, were convinced that , dollars would be a compensation for his services, exclusive of an allowance for his expenses, when the whole was taken together it must at least amount to , dollars; for this reason he moved to fill the blank with that sum. the question on , dollars was put, and rejected. mr. page then moved , dollars, which was carried; affirmative , negative . the house then proceeded to the second part of the report, viz: "that there be paid in like quarterly payments to the vice president of the united states, , dollars per annum." mr. white.--i do not like the principle on which this provision is made for the vice president; there is nothing, i believe, in the constitution which gives him a right to an annual sum; it fixes no duty upon him as vice president, requiring a constant attendance. he may be called upon to act as president, and then i would give him the salary of the president; at other times, he is to preside as president of the senate, then i would pay him for his services in that character. on this principle, i shall move to strike out the clause; if that is agreed to, i propose to offer one, allowing him the pay of president, when he acts as president; and a daily pay during the time he acts as president of the senate. mr. page would second the motion for striking out five thousand dollars, but with a different view from what had been intended by his worthy colleague. he wished it struck out, in order to introduce a larger sum. his idea was, that a proper proportion was not observed between the salary of the first and second magistrates. as to the utility of the office, he had nothing to say. he had no hand in forming the constitution; if he had, perhaps he should never have thought of such an officer; but as we have got him, we must maintain him; and those gentlemen who talk of respectability being attached to high offices, must admit, in a comparative view, that he is not supported with dignity, provided a situation derives its dignity from the money given him by way of salary; for his part, he thought money, abstractedly considered, could not bestow dignity. real dignity of character proceeds from a much nobler source; but he apprehended the people of the united states, whose representative the vice president was, would be displeased to see so great a distinction made between the president and him. mr. sedgwick said, the arguments of the honorable gentleman from virginia (mr. white) did not strike him with any force, nor did he see the impropriety spoken of. one reason why the pay of the members of the senate and house is per diem is, because they contemplate their being together but a very inconsiderable part of their time; but i suppose, said he, that every gentleman who has considered the subject, has determined in his own mind that the vice president ought to remain constantly at the seat of government; he must always be ready to take the reins of government when they shall fall out of the hands of the president; hence it will be necessary that he should, for this cause, if not for any other, preclude himself from every object of employment, and devote his whole time to prepare himself for the great and important charge for which he is a candidate. under these circumstances, it is necessary that he should be provided with a constant salary, to support that rank which we contemplate for him to bear; i therefore conceive it must be such a perpetual salary as the president is entitled to receive. if the principles of the motion are inadmissible, it cannot be supported by argument, because very little information can be obtained on which to ground our reasoning. mr. seney said, that, according to the constitution, a compensation is to be made for services performed. the vice president may absent himself the whole time. he proposed giving him a handsome allowance while employed, but thought he ought to be paid per diem. mr. sherman adverted to the circumstance of salaries being allowed to lieutenant governors in the several states where such officers are appointed; so that, according to this mode, the grant made to the vice president would correspond with the practice of the states individually. it appeared also, he said, to be necessary, inasmuch as this officer would be taken from all other business. mr. white.--if i thought, sir, the attendance of the vice president as necessary as that of the president, i would not hesitate to allow him an annual salary; but i do not conceive it to be so necessary; it is not made so by the constitution. if he had been appointed vice president as a perpetual counsel for the president, it would have altered the case; he would then have had services to render, for which we ought to compensate him. the honorable gentleman from massachusetts (mr. sedgwick) has intimated that he will be precluded from following any other business; there is nothing in the constitution which precludes him from following what profession he thinks proper. i am willing to pay him a full and liberal allowance for all the services he renders; but i do not think we are authorized to institute sinecures for any man. it ought to be considered that the vice president has personal advantages from the appointment to that office; it holds him up as the successor of the president; the voice of the people is shown to be considerably in his favor; and if he be a deserving person, there will be but little doubt of his succeeding to the presidential chair; not that i would make this an argument to diminish his compensation. i would pay him amply for all the services he renders, at least as amply as the government and circumstances of the people will admit. when performing the duties of president, he should receive the salary as such. the constitution has stipulated, that the president shall be compensated for his services, that we shall ascertain it by law; but it has not said one syllable with respect to the pay of the vice president; hence i consider it would be improper to pay him on any other principle than in proportion to his services. if these require five thousand dollars a year, it may be made to amount to that sum, at so much per diem. as to the observations of the gentleman from connecticut, (mr. sherman,) that lieutenant governors receive salaries in the several states, and therefore it will be proper to grant one to the vice president, in order to comport with the practice of the states individually, i shall only remark, that in some states they have no such officer; in others, where they have such an officer, they give him no pay at all; in some, they are paid according to their attendance on business, in the manner that i propose to pay the vice president. but admitting that every state had an officer of this kind, and that they paid him a salary like that proposed in the report, it would be no argument why the general government should pursue a practice inconsistent with that economy and sense of propriety which it ought to be the study of the representatives of the people of the united states to preserve to their constituents. mr. madison.--i do not concur, mr. speaker, in sentiment, with my colleague on this subject. i conceive, sir, if the constitution is silent on this point, that it is left to the legislature to decide according to its nature and its merits. the nature of the office will require that the vice president shall always be in readiness to render that service which contingencies may require; but i do not apprehend it to be in our power to derive much advantage from any guides furnished by the examples of the several states; because we shall find them differently provided for by the different governments. if we consider that the vice president may be taken from the extremity of the continent, and be from the nature of his office obliged to reside at or within the convenient reach of the seat of government, to take upon him the exercise of the president's functions, in case of any accident that may deprive the union of the services of their first officer, we must see, i think, it will often happen that he will be obliged to be constantly at the seat of government. no officer under a state government can be so far removed as to make it inconvenient to be called upon when his services are required; so that, if he serve without a salary, it may be he can reside at home, and pursue his domestic business; therefore the application in that case does not appear to me to be conclusive. my colleague says that he will derive advantages from being in the line of appointment to the presidential chair. if he is to be considered as the apparent successor of the president, to qualify himself the better for that office, he must withdraw from his other avocations, and direct his attention to the obtaining a perfect knowledge of his intended business. the idea that a man ought to be paid only in proportion to his services, holds good in some cases, but not in others. it holds good in legislative business, but not in the executive or judicial departments. a judge will be sometimes unemployed, as in the case of the vice president; yet it is found necessary to claim the whole of his time and attention to the duties for which he is appointed. if the principle of proportioning the allowance to the quantum of services performed obtains, it will be found that the judiciary will be as dependent on the legislative authority, as if the legislature was to declare what shall be their salary for the succeeding year; because, by abridging their services at every session, we could reduce them to such a degree, as to require a very trifling compensation indeed. neither do i, mr. speaker, consider this as a sinecure; but that will appear from the reasons already given. the office of a judge is liable, in some degree, to the same objection; but these kinds of objections are levelled against the institutions themselves. we are to consider his appointment as a part of the constitution; and if we mean to carry the constitution into full effect, we ought to make provision for his support, adequate to the merits and nature of the office. mr. ames said that the vice president's acceptance of his appointment was a renunciation of every other avocation. when a man is taken from the mass of the people for a particular office, he is entitled to a compensation from the public; during the time in which he is not particularly employed, he is supposed to be engaged in political researches for the benefit of his country. every man is eligible, by the constitution, to be chosen to this office; but if a competent support is not allowed, the choice will be confined to opulent characters. this is an aristocratic idea, and contravenes the spirit of the constitution. mr. seney.--this, sir, is a subject of a delicate nature, and the discussion of it rather disagreeable; but i think it my duty to declare my sentiments freely upon it. no argument has been adduced to convince me that the vice president ought to receive an allowance any more than the other members of the legislature. he cannot be compelled to perform any duty. this is an important subject, and ought to be maturely considered, as a great deal depends on the decision which will now take place. mr. burke observed that the situation of our finances was so much embarrassed, as to dis-empower us from giving such ample salaries as we might, under different circumstances, think necessary; that it was but reasonable the vice president should receive a compensation adequate to the second officer in the government. he will be subject to extra expenses by living at the seat of government, and will be obliged to maintain his dignity. mr. b. further suggested that the sum might not be fully sufficient, but in our present situation, it was as much as we could afford. mr. ames, in his reply to mr. seney's observations, pointed out the difference of the situation of the vice president and the members of the legislature. mr. sedgwick made some additional remarks of a similar nature, and further observed, it would be necessary that the members of the house should return and associate with their constituents, in order to learn their sentiments and their feelings, and witness their situation and wants, that they may consequently resume their former occupations: but with respect to the vice president, his acceptance must be considered as an abandonment of every other pursuit; he must reside at the seat of government, and will necessarily incur extra expenses in consequence of his office. mr. stone.--i am for giving such salaries to the officers of this government, as will render them easy in their situation. but we are confined by the constitution; salaries are to be given for services performed; they are considered in no other light. the vice president cannot be viewed in any other light than that of the president of the senate. i am for his being paid per diem, but would allow him a generous support. i do not think five thousand dollars are sufficient; i would allow him a larger sum, which allowance, per diem, would amount to what would be fully adequate. mr. smith, of south carolina, said, that by the constitution the vice president could not be considered as a senator, and therefore could not, with any propriety, be paid as such. considering him as an officer in the government, next in dignity to the president, and particularly designated by the constitution, he must support a correspondent dignity in his style of living, and consequently ought to have a competent allowance for that purpose. he did not think five thousand dollars would be considered too much, and would vote for that sum. the idea of a daily allowance must be given up, as inapplicable to the situation assigned him by the constitution. he is there recognized as vice president, and as such ought to be provided for. a daily pay of twenty-five or thirty dollars would appear a large compensation; yet if congress sat but one hundred days, which, in all probability, would be the length of their future sessions, it would be insufficient for his support. but suppose it one hundred and fifty days; this, at thirty dollars per day, would come so near the proposed salary, that the saving would be an inconsiderable trifle; but if the session was longer, it might amount to more than is contemplated by any gentleman. mr. page was clearly for making the allowance by annual salary, because the office was permanent; a daily allowance could not be relied upon, because if the senate sat but a few days, it would be incompetent, even at one hundred dollars per day; whereas, if the session was of long continuance, that sum would be more than the services could require, if they are to hold a comparison with those of the president. if the house agreed to strike out the five thousand dollars he would propose eight thousand, which was not one third of what was given to the president. mr. boudinot.--the question seems to turn merely on this point, whether the vice president shall receive a per diem allowance, or an annual salary? the constitution ought to serve as the ground on which to determine it; therefore we are to consider the point of view in which this office is placed by that instrument. the second article calls him into view with the president; he is to be elected in the same manner as the president, in order to obtain the second best character in the union to fill the place of the first, in case it should be vacated by any unforeseen accident. the constitution considers him a respectable officer; he is to supersede the president, when it shall happen that the first magistrate dies or is removed on impeachment and conviction. these are the great objects of his appointment. his duty as president of the senate is only collateral; consequently he ought to be respected, and provided for according to the dignity and importance of his principal character. if still inferior duties were attached to him, would it be an argument for reducing the compensation to an equality with what ought to be granted, if he performed such inferior duties only? i apprehend it is a principle of this nature which urges gentlemen on to press the amendment. i cannot see any reason for differing with the constitution on a point in which i think it ought to guide our decision. i think there is an affinity between the duration of the office and the compensation. the constitution establishes the office for four years; the compensation ought to be made commensurate with that idea. the question on mr. white's motion was taken and lost, as was mr. page's motion for striking out , and inserting , dollars. the proposition being then agreed to, the house proceeded to consider the following: that the daily pay of the members of the senate, and house of representatives, for their attendance at the time appointed for the meeting of their respective houses, and for the time they shall be going to, and returning therefrom, allowing the travel of twenty miles for each day, be six dollars, and of the speaker of the house of representatives twelve dollars. mr. sedgwick moved to amend this proposition, so as to give to the members of the senate six dollars per day, and five to the members of the house of representatives. his reason for introducing this distinction was, that the convention had made it in the constitution. the senators are required to be of an advanced age, and are elected for six years. now this term taken out of the life of a man, passed the middle stage, may be fairly deemed equal to a whole life; for it was to be expected, that few, if any, of the senators could return to their former occupations when the period for retirement arrived; indeed after six years spent in other pursuits, it may be questioned whether a man would be qualified to return with any prospect of success. he did not say six dollars was more than a compensation for their services and expenses; but as economy ought to be particularly studied by the legislature, he had moved to reduce it. he hoped gentlemen would pay some deference to the public opinion, on the present occasion; this he thought to be in favor of small salaries. not but a different sentiment might prevail in some of the states; perhaps different circumstances might warrant the difference of opinion. it was probable that five dollars laid out in that part of the union from which he came, would be more advantageous to the person, than a like sum laid out at the other extremity of the continent; but he believed, nevertheless, that something would be left to those gentlemen out of the five dollars per day, after their expenses were paid; but even if a little self-denial was the consequence of this reduction, it would do but little harm; whereas the precedent might have a salutary influence upon the future administration of the government. mr. jackson.--i am opposed to this discrimination, because all have alike abandoned their particular pursuits in life, and all have equally engaged in the service of their common country. on what principle can this distinction then be contended for? is it expected that a senator shall eat more, or drink more costly liquors, than a member of the house of representatives? i presume it is not; their expenses must be nearly equal. i can see but one reason that can be assigned for this difference, which is, that the senate may sit longer than the house; but considering they are to receive pay accordingly, this reason is of no weight. the duties of both houses are equal, and the pay ought to be alike. i will submit to the gentleman who brought this motion forward, whether it is not much worse to the personal interest of men in business to be taken off in the prime of life, than after the successful pursuit of some profession at an advanced age, when the natural and proper time of retirement arrives; and if so, his argument falls to the ground. but if the reverse is true, it will not support his motion, because, if we look around, our senses will inform us that this house contains as venerable and aged members as any within the walls of the senate; thus again we are upon a footing. now, unless gentlemen mean that we should depress ourselves, and thereby set the senate above us, i cannot conceive what foundation there will be for a discrimination. mr. lee.--i am in favor of the motion for discriminating between the senate and this house, because the constitution has done it in a variety of modes. the qualifications are superior; a senator must be a man advanced in life, and have been nine years a citizen of the united states; while a younger man who has been but seven years a citizen, may obtain a seat in this house. the constitution has made a difference in the mode of election. the senators are selected with peculiar care; they are the purified choice of the people, and the best men are likely to be preferred by such a choice; those who have shown the fullest proofs of their attachment to the public interest, and evinced to their countrymen their superior abilities. in order to bring forth such characters to partake of our public councils, i think every motive of honor and of interest ought to be called into action. if men are not brought forth who will maintain their own dignity, and promote the public interest by a firm and independent conduct, regardless of every risk, regardless of the voice of calumny or popular clamor, our government will soon lose its importance and its energy. i contemplate, mr. speaker, the senate as a barrier between the executive and this branch of the legislature, shielding the people from any apprehension of being attacked by an aspiring magistracy on the one hand, and on the other from being desolated by the anarchy often generated by a time-servingness to veering popularity. we shall gain these desirable objects at a trifling price, if we make a distinction of two or three dollars per day--a trifling allowance indeed to our most worthy sages. but, said the gentleman last up, there are as young men in the senate as in this house; although there be, the time will come when none but the most venerable and respectable of our citizens, men whose hoary heads are silvered over with the honors of an experienced old age, men illustrious by their virtues and capacity, will have the public confidence ensured to them by the purity and notoriety of their principles. now is the time to deliberate and view every future circumstance which may arise from our decision; the importance of this principle hereafter, is infinitely above every advantage which the present members may derive from it. by it alone you may secure dignity and permanency to the government, and happiness under its administration. it is with difficulty, mr. speaker, that you can draw forth men of age and much experience to participate in the political concerns of their country. retirement and reflection are incident to that period of life; they are sought for, and, when obtained, they are highly prized. the wise and virtuous sage, who from the monitions of nature has discovered that his remaining years will be but few, must be incited by every motive that can operate on the human heart to continue those labors which he seeks to bury the remembrance of in the deeps of solitude. honor may stimulate the ingenuous mind; but interest is a great reason of action, and may be usefully employed to influence old age. what i have now urged is in favor of the constitutional distinction; i approve of the amendment, but i wish the sum had been left out, that the provision might be determined according to the sense of the house, and not affect the principal question of discrimination. i am satisfied, sir, that there is no heart within these walls but beats with patriotic ardor, and has determined to pursue the noblest object, the public good. nothing but the anxiety i feel for this, as connected with the present question, could have induced me to trouble the house with a repetition of what was dilated upon, on a former occasion. let it then be considered, that on our decision depend the dignity of the legislature, and the perpetuity of that government, the glory and the hopes of the people of america, which, if now disappointed, must be succeeded by confusion and gloomy despair. mr. white.--i object, sir, to a discrimination. i cannot perceive that difference in the constitution alluded to by the gentlemen. among the senators and the people in some of the ancient commonwealths, an artificial and political distinction was established, which was the case at rome, in particular. there the senators were considered as possessing some degree of divinity, and the rest of the people were not admitted to associate with them. can it be supposed that the name of senators will render those members superior to their fellow-citizens? i cannot see any difference in the general estimation between a senator and a representative, however great their sentiments may vary in their respective states; and cannot conceive why any discrimination should be made in their allowances. the independence of the members of this house may be injured by such a distinction; and the senate, at some future day, may have it in their power to carry points, and be enabled to prolong the session, when it may be of great inconvenience to the house. mr. madison was of opinion that a discrimination was necessary; he observed, that it had been evidently contemplated by the constitution, to distinguish in favor of the senate, that men of abilities and firm principles, whom the love and custom of a retired life might render averse to the fatigues of a public one, may be induced to devote the experience of years, and the acquisitions of study, to the service of their country. and unless something of this kind is adopted, it may be difficult to obtain proper characters to fill the senate, as men of enterprise and genius will naturally prefer a seat in the house, considering it to be a more conspicuous situation. mr. moore did not see the propriety of the discrimination proposed; the business of each house is equal, or if there is a difference in their legislative concerns, it is in favor of the house. he had no idea of giving the public money for such an idle purpose as the support of a fanciful dignity and superiority. his idea of the business was, each member ought to be compensated for his services, and nothing further. mr. vining.--the arguments brought forward by my honorable friend from virginia, (mr. lee,) have not proved satisfactory to my mind, that his favorite opinion with respect to discrimination is right. he has told us that the sages of america will be selected, and placed in this distinguished situation. true, sir, i expect venerable and respectable characters will find their way into every branch of the government; but when i consider the mode in which the senate is elected, i apprehend we may have there men whose wealth has created them the influence necessary to get in. if any thing is to be expected by this refined choice, it is that men of rank and opulence will draw the regard of the small and select circle of a state legislature; while the representatives in this house, being the choice of their fellow-citizens, among whom rank and dignity are rather unpopular, will consist of men in middling circumstances. now if any thing is to be drawn from arguments like these, it is in favor of this house. but the whole of this is a subject on which we are better able to decide from our feelings, than from our discussions. i am against the motion for another reason, sir; it goes to reduce the compensation, which i think is already set too low, to furnish good security for the happy administration of the government. in considering this subject, there are two important objects necessary to engage the attention of the legislature. first, that the compensation be not made an object for indigence to pursue; and second, that it be not so low as to throw the business of legislation into the hands of rich and aspiring nabobs, but such as to compensate a man in the middle grade of life. these are generally men of business, who are fittest to conduct the concerns of their fellow-citizens. now, in compensating this class of men, (for i would have the compensation proportioned to this class,) i do not take into consideration the sacrifices they make, by dedicating their time and abilities to the service of their country; but i confine myself merely to a compensation for their time and services. if the compensation is made an object for indigence, we shall have the sessions protracted to an extreme length, and the expense will be increased; if we make the reward barely commensurate with the services, you will have men of abilities, who will despatch the public business, and return to their private pursuits. if the business is done without pay, it may be productive of the most enormous evils. were every member of the british house of commons allowed a thousand guineas a year, they would be less venal; we should not find them purchasing their seats, and selling their votes, for places and pensions. the very money given in this way would furnish a handsome compensation for every member, and add something considerable, annually, to their sinking fund. i apprehend, in establishing a compensation, we shall put it in the power of gentlemen, while here, to live as independent as they can at home. perhaps i hazard a conjecture, when i say there is not a gentleman on this floor, i am certain there are not many, but have found, from experience, that six dollars per day is adequate to that object; certainly it cannot be the wish of any man to make the public service unpleasant, by rendering the situation of the members of congress less eligible than a solitary retirement from patriotic pursuits would be. any man who lives decently, will find six dollars a day not more than sufficient to defray the expense of a casual residence in a splendid city. the experiment has been made. if a gentleman keeps a servant and his horses, and means to reciprocate the civilities he receives, i again assert the compensation is inadequate. it is true, we may live for two dollars a day; but how? there is a dignity attached to the situation of a representative, with respect to his country; and the compensation might be seven or eight dollars per day, without granting the members more than a bare compensation. from all these considerations, i am induced to hope that gentlemen will indulge a little, and rather support an increase, than a diminution of pay. as to the discrimination, it has been once decided against by a considerable majority; i have no doubt but it will now meet a similar fate; but be the decision of the house what it may, with respect to the quantum, or manner of compensation, i shall never fear to deliver my sentiments. on the present occasion, i wish them known to my constituents, and i am much mistaken if they are not coincident with their own. mr. seney.--i am sorry, sir, that the question of discrimination has been brought before the house. can any reason be assigned for making this distinction? are the services of the senate of more importance than those of the representatives? i think not. gentlemen have brought forward the constitution upon this occasion, but i conceive it to be opposite to the very principle they mean to advocate. this will destroy the independence of the several branches, which is to be strictly observed. if a discrimination should be established in favor of the senate, will it not naturally tend to create a sense of inferiority in the minds of the representatives? and the time may come when they may find it their interest to become subservient to the views of the senate. i feel so sensibly, sir, the impropriety and unconstitutionality of this measure, that had i the most distant idea it would comport with the sentiments of a majority of the members of this house, i should call for the yeas and nays on a division of the house upon the question. but as i do not conceive that to be the case, i shall waive the proposition for the present. mr. sedgwick said, that whenever he had a motion to make before the house, he endeavored to satisfy himself of the reasonableness and propriety of it. if he thought it proper, he did not consider the mode of decision that might be adopted of any material consequence; but in determining the present question, he hoped the yeas and nays would not be called. there is a principle in mankind which revolts at the idea of inferiority; a proposition, for example, shall be made, that has for its object the establishment of a superiority (howsoever necessary;) that principle is alarmed and excited to opposition; to discuss such a question as the present, we ought to be divested of every partiality and prejudice, that might bias our judgment in deciding an affair that will not bear the test of reason and experience. i conceive the precedence of the senate has been clearly pointed out by the constitution. there are grades in society which are necessary to their very existence. this is a self-evident proposition; it is recognized by every civilized nation, and by the house in the report before us. for what reason have we made a difference between the president and vice president? is it not on account of his superior station and his dignity? and between the vice president and the senate? this distinction is likewise established by the constitution in the difference of the terms for which the members of the senate and those of the house of representatives are chosen. the time for which the senate is chosen, demonstrates the propriety of a difference being made in the pay they ought to receive; the duties of their office require they should renounce every other avocation; their attention will be wholly taken up in the discharge of public business; therefore they should have an adequate and an independent allowance. the generality of the members being so far advanced in years, will drop every idea of engaging any more in their several professions, after having once engaged in the service of their country. their age, wisdom, and experience, all warrant this discrimination. he concluded by saying, that the real dignity of the house was, he thought, so far from being diminished by adopting the proposition, that he conceived it was essentially connected with it. mr. stone thought the house ought not to assist in elevating one branch of the government more above the other than the constitution had done. this had given influence to the senate by a negative in the cases of treaties and appointments. it had given importance to the house, by vesting them with the sole power of originating money bills. but both these powers could be exercised without a discrimination being made in the pay of the members; therefore he inferred that it was not contemplated by the constitution to make any such distinction. a discrimination may eventually operate to the public injury; the house of representatives may be desirous of terminating the session, but the senate, finding the compensation they receive quite agreeable, may be inclined to protract it. he thought the true way of deciding on this subject, was to make the same allowance to both, and let it be such as not to induce them to protract the session on the one hand, or have a tendency to hurry over the business on the other. mr. jackson said, in reply to the inquiry of mr. sedgwick--"why have we made a difference between the president and the vice president?" that the whole of the president's time would be taken up in the duties of his station; that the vice president might retire to his farm whenever he thought proper. we refer, said he, to the wisdom of the senate; but how is this superior wisdom to be discerned? if on this account a distinction is to be made, it necessarily follows that a difference should be made between the members of this house, and those of the senate. we cannot be too cautious how we establish an undue pre-eminence, and give an influence and importance to one branch of the legislature over the other. all governments incline to despotism, as naturally as rivers run into the sea. despotism makes its way gradually, by slow and imperceptible steps; despotic power is never established all at once; we shall, ere we are aware, get beyond the gulf, and then we shall be astonished how we reached there. the services of the senate are not more arduous than ours; their proper business is legislation, and i will never consent to any discrimination. if i imagined the question would be determined in favor of discrimination, i would call the yeas and nays, and should it be determined in favor of it, i will still call them on purpose that my constituents may see that i have voted against a measure which i look upon as injurious to the government. mr. page.--if he thought the discrimination proposed would have the tendency which some gentlemen apprehended, he would be the last man on the floor to support it. he would be as careful as any man how he extended the influence of any part of the government, or gave it the least inclination towards aristocracy. but he apprehended gentlemen were deceived in their principle--he did not believe the doctrine that money confers importance, and he wished to evince to the world, that money, under this government would have no such effect. the senate having more duties to perform, may require a larger pecuniary gratification; but this will not add to their importance. it will require something of this kind to stimulate gentlemen to undertake the service; for his part, he might consent to come here for two years, in order to assist in public business, but no inducement, hardly, could engage him to undertake it for six years. on this consideration, he thought the senate ought to have annual salaries, and to such an amount as would render their situation independent and eligible. if gentlemen are afraid of an aristocracy, they ought to be careful not to make the compensation too low, so as to exclude men of middling fortunes; the men of rank and distinguished opulence might serve without any pecuniary compensation; but the government would not be safe, if it was exclusively in such hands. he wished to discriminate in favor of the senate, but he would rather increase their pay to eight dollars, than reduce that of the members of this house, while he considered it but a moderate compensation. the question on mr. sedgwick's motion was taken, and lost by a considerable majority. the house having now gone through the report, it was _ordered_, that a bill or bills be brought in, pursuant thereto, and that messrs. burke, stone, and moore, be a committee to prepare and bring in the same: with instructions to insert a clause or clauses, making provision for a reasonable compensation to the secretary of the senate, and clerk of the house of representatives, respectively, for their services. after which the house adjourned. wednesday, july . _western lands._ the house then resolved itself into a committee of the whole house on the state of the union, mr. boudinot in the chair; and, after some time spent therein, the committee rose and reported that they had had the state of the union under consideration, and come to a resolution thereupon, which was read and then delivered in at the clerk's table, where the same was twice read, and agreed to by the house, as follows: _resolved_, that an act of congress ought to pass for establishing a land office, and for regulating the terms and manner of granting vacant and unappropriated lands, the property of the united states; that the said office be under the superintendence of the governor of the western territory; that the land to be disposed of be confined to the following limits, viz: that the tracts or parcels to be disposed of to any one person, shall not exceed ---- acres; that the price to be required for the same shall be ---- per acre; and that every person actually settled within the said limits shall be entitled to the pre-emption of a quantity not exceeding ---- acres, including his settlement. _ordered_, that a bill or bills be brought in, pursuant to the said resolution, and that mr. scott, mr. sylvester, and mr. moore, do prepare and bring in the same. thursday, july . _home department._ on motion of mr. vining, the house resolved itself into a committee of the whole on the state of the union, mr. boudinot in the chair. mr. vining introduced a resolution for the adoption of the committee, by which it is declared: that an executive department ought to be established, and to be denominated the home department; the head of which to be called the secretary of the united states for the home department; whose duty it shall be to correspond with the several states, and to see to the execution of the laws of the union; to keep the great seal, and affix the same to all public papers when necessary; to keep the lesser seal, and to affix it to commissions, &c.; to make out commissions, and enregister the same; to keep authentic copies of all public acts, &c., and transmit the same to the several states; to procure the acts of the several states, and report on the same when contrary to the laws of the united states; to take into his custody the archives of the late congress; to report to the president plans for the protection and improvement of manufactures, agriculture, and commerce; to obtain a geographical account of the several states, their rivers, towns, roads, &c.; to report what post-roads shall be established; to receive and record the census; to receive reports respecting the western territory; to receive the models and specimens presented by inventors and authors; to enter all books for which patents are granted; to issue patents, &c.; and, in general, to do and attend to all such matters and things as he may be directed to do by the president. mr. benson objected to some of the duties mentioned in the resolution. he thought the less the government corresponded with particular states the better, and there could be no necessity for an officer to see to the execution of the laws of the united states, when there was a judiciary instituted with adequate powers. mr. white was not convinced that there was a necessity for establishing a separate department for all or any of the duties contained in the resolution. the correspondence with the states belonged to the executive. to see to the execution of the laws was the duty of the judiciary. the great seal might be kept by the secretary of foreign affairs; the lesser seal might be deposited in the same hands. commissions might be made out by the departments to which the officer is connected. the secretary of the senate and clerk of the house might transmit the public acts, and keep records thereof. what have congress to do with the acts of states? if they interfere with the constitutional powers of the government, the judges will prevent their operation. the papers of the late congress may be distributed among the officers to which they relate; the rest may be deposited with the officers of congress. the want of the reports on manufactures, agriculture, and commerce, may be supplied by congress. the post-roads may be left to the postmaster general. the census must be returned to congress, and they will preserve it among their files. and it can hardly be thought necessary to establish a great department for the purpose of receiving the models, specimens, and books presented by authors and inventors. if none of these things are requisite to be done by a great department, why should the united states incur the expense which such an arrangement must necessarily draw along with it. mr. huntington thought the secretary of foreign affairs was not so much overcharged with business but that he might attend to the major part of the duties mentioned in the resolution. mr. vining said, he had waited until the great executive departments were established; but none of those had embraced the duties contained in his proposition, which he conceived to be of great importance; many of the duties were as essential as those of any other department, except the treasury. as for their belonging to the executive, as was said by the gentleman from virginia, he admitted it; but they were, nevertheless, as proper to be put into the hands of a principal officer under the president, as the war office, or office of foreign affairs; the duties of these were especially within the executive department of the government. he conceived that the president ought to be relieved from the inferior duties of his station, by officers assigned to attend to them under his inspection; he could then, with a mind free and unembarrassed with the minutiæ of business, attend to the operations of the whole machine. if the office was admitted to be necessary, and he was certain the performance of the duties were useful and essential, the expense could be no solid objection, because the information it would furnish would more than counterbalance that article. the question he conceived to be reduced to this, whether a confidential officer would not be more useful than any other, and whether the duties could be distributed among the officers already instituted. for his part, he conceived most of them foreign to either of those officers; and that they could not be performed with advantage any other way than by an officer appointed specially for the purpose. he thought every gentleman would admit that the duties were important, and he assured them that his only reason for bringing the motion forward was, to provide for the public good. he had no personal motives in pressing it; he disclaimed every idea of serving any particular man by the arrangement, and rested it solely upon its merits. mr. sedgwick believed the honorable gentleman in his assertions, that he had no personal motive in pressing this business. he believed that he thought it essential, and if his sentiments were the same, he would join the gentleman in supporting the motion; but after duly considering the subject, he was inclined to believe that the office was unnecessary, and that it would be squandering the public money, at a time when the greatest economy is requisite. he thought the principal part of the duties might be assigned to the secretary of foreign affairs; and he would, if the committee negatived the present motion, introduce another for that purpose. mr. gerry thought the burthens of the people would be sufficiently great in providing the supplies absolutely necessary for the support of the government; therefore it would be improper to add expenses which might possibly be avoided. the people are viewing the proceedings of congress with an attentive solicitude, and if they observe that we erect offices for which there is no apparent necessity, they will be apt to think we are providing sinecures for men whom we favor; they will reluctantly pay what is extracted from their earnings to a government which they think is regardless of economy. they will suspect a further view in the change of government. they will suppose that we contemplate the establishment of a monarchy, by raising round the executive a phalanx of such men as must be inclined to favor those of whom they hold their places. mr. vining.--why do gentlemen say that such an office is unnecessary, when they are forced to admit that all the duties are essential? or how can they say it is more expensive to establish it in this way than in another? suppose these duties distributed in the manner which some gentlemen have mentioned, is it not fairly to be presumed that the departments to which any of them are attached, will require an extra pay for these extra services? if so, will there be any economy in this mode of procedure? all that is to be wished for, is to have a confidential person employed, let his salary be what you please: if it is not worth fifteen hundred dollars per annum, let it be five hundred. but it would be better to have a principal to manage the business than to have it consigned to clerks in the other departments. mr. lawrence said that something was necessary to be done with respect to the business brought forward by the honorable gentleman from delaware. he conceived that an officer of the rolls, or some inferior officer, ought to be appointed to transact the business detailed in the resolution; he did not insist upon making a great department. mr. sedgwick agreed with the gentleman from new york; but, he thought, the business might be thrown into some other department, and save to the union the expense of the one which the gentleman from delaware wished to establish, by the name of the home department. he thought the resolution proposed altogether so improper, that he hoped the committee would rise. a desultory conversation arose, whether the committee should decide upon the resolution or not; after which a question was taken on the rising of the committee, and decided in the negative. then the question was put on the first part of mr. vining's proposition, viz: "that an executive department ought to be established, to be denominated the home department;" and lost by a considerable majority. friday, july . _committee of ways and means._ mr. fitzsimons.--the finances of america have frequently been mentioned in this house as being very inadequate to the demands. i have ever been of a different opinion, and do believe that the funds of this country, if properly drawn into operation, will be equal to every claim. the estimate of supplies necessary for the current year appears very great from a report on your table, and which report has found its way into the public newspapers. i said on a former occasion, and i repeat it now, notwithstanding what is set forth in the estimate, that a revenue of three millions of dollars in specie, will enable us to provide every supply necessary to support the government, and pay the interest and instalments on the foreign and domestic debt. if we wish to have more particular information on these points, we ought to appoint a committee of ways and means, to whom, among other things, the estimate of supplies may be referred, and this ought to be done speedily, if we mean to do it this session. mr. gerry said, the estimate reported by a committee was as accurate as possible. from this it appeared, that eight millions of dollars would be necessary for the support of government, for the interest and instalments becoming due, and for the arrearages already due. he remarked, that we had been already dunned on this subject by foreigners, and that congress would have to make provision for their payment. if three millions of dollars were employed to this use, it would only be carrying the arrearages into another year; but, as they must be paid at last, he recommended making an immediate exertion as a better way of giving satisfaction than procrastination would be. he thought it best to lay the real situation of this country before the house, and not endeavor to make things appear better than they really are. with respect to the publication of the estimate in the papers, he knew nothing about it; he admitted that it was such a one as ought not to be published by order of congress. he approved of the idea of appointing a committee of ways and means, if it were only to ascertain what part of the interest on the debt should be paid, and what of the principal extinguished within the current year, from the funds already provided. friday, july . mr. scott, from the committee appointed for the purpose, brought in a bill for establishing a land office for the western territory, which was read and laid on the table. on motion, _resolved_, that a standing committee be appointed to examine the enrolled bills, and to present the same to the president for his approbation and signature. messrs. white and partridge were accordingly appointed. mr. white, of the committee appointed to examine into the measures taken by congress and the state of virginia, respecting the lands reserved for the use of the officers and soldiers of said state, &c., brought in a report, which was read and laid on the table. the house then resumed the consideration of the amendments agreed upon in committee of the whole, to the bill for registering and clearing vessels; which being finished, the bill was ordered to be engrossed for a third reading on monday next. a message from the senate informed the house that they had passed the bill for establishing the treasury department, with amendments; to which they desired the concurrence of the house. mr. sedgwick, from the committee appointed for the purpose, brought in a bill to provide for the safe keeping of the acts, records, and great seal of the united states, for the publication, preservation, and authentication of the acts of congress, &c.; which was read and laid on the table. monday, august . a message from the senate informed the house that they had passed the bill for the establishment of light-houses, beacons, and buoys, with several amendments; to which they desired the concurrence of this house. the amendments of the senate were immediately considered and agreed to. the engrossed bill for regulating the coasting trade was read a third time; and, on motion, recommitted to a committee of the whole, to be taken up to-morrow. the bill for establishing a land office for the western territory was read a second time, and made the order of the day for thursday. the bill to provide for the safe keeping of the acts, records, great seal, &c., was read, and made the order of the day for friday. the report of the committee on amendments to the constitution was, on motion of mr. madison, made the order of the day for wednesday sennight. mr. benson made a motion as follows: _resolved_, that a committee be appointed to join with a committee of the senate to be appointed for the purpose, to consider of and report when it will be convenient and proper that an adjournment of the present session of congress should take place; and to consider and report such business now before congress, necessary to be finished before the adjournment, and such as may be conveniently postponed to the next session; and also to consider and report such matters not now before congress, but which it will be necessary should be considered and determined by congress before an adjournment. tuesday, august . _compensation of members._ mr. burke, from the committee appointed for the purpose, brought in a bill for allowing a compensation to the members of both houses, and to their respective officers; this bill provides that the compensation shall be as follows, viz: to each member of the senate and house, six dollars per day. the speaker of the house, twelve dollars per day. to the secretary of the senate, and clerk of the house, each fifteen hundred dollars a year, and two dollars a day each during the session of the legislature; one principal clerk to each, at three dollars a day during the session; one engrossing clerk to each, at two dollars a day during the session. serjeant-at-arms, three dollars a day during the session. doorkeeper to the house and senate, each seven hundred and thirty dollars a year. assistant doorkeepers, during the session, one dollar and fifty cents a day each. this bill was laid on the table. wednesday, august . the house then resolved itself into a committee of the whole, on the bill for allowing compensation to the members of the senate and house of representatives of the united states, and to the officers of both houses, mr. boudinot in the chair. mr. goodhue moved to strike out six dollars, as the pay of each member per diem. mr. carroll inquired, if it was not out of order for the committee to alter principles, after they had been settled by the house. mr. page wanted to know whether the gentleman meant to increase or diminish the sum, for he presumed it was not intended to be left a blank altogether; but he hoped the house would do neither. it had been settled, after mature deliberation, at six dollars; the house certainly thought that sum enough, and if it was more, that it would be too much; he was satisfied with this determination, and would adhere to it. perhaps the gentleman meant to strike out the six dollars, in order to make a discrimination between the members of this house and the senate; if so, he had better move to increase the compensation of the senators, and here he would second him, because he thought their services required more. he would once more mention his fears relative to a small sum. he dreaded the abuse of economy, and was suspicious that a parsimonious provision would throw the government into the hands of bad men, by which the people might lose every thing they now held dear. he thought few would serve for a smaller sum than he would, and he was confident the allowance was as moderate as any man could expect. gentlemen who come a great distance are put to considerable expense, and their domestic arrangements destroyed: instead of laying up money by their attendance here, it was almost certain they would spend part of their private estates. if it is meant that the republic should be provided with good and wholesome laws, a proper provision should be made to bring into the councils of the union such men as are qualified to secure them well; it is not to be expected that the spirit of patriotism will lead a man into the perpetual habit of making such exertions and sacrifices as are too often necessary in the hour of danger. no man ought to be called into the services of his country, and receive less than will defray the expenses he incurs by performing his duty. if he does, the public affairs, in the time of tranquillity, will get exclusively into the hands of nabobs and aspiring men, who will lay the foundation of aristocracy, and reduce their equals to the capacity of menial servants or slaves. mr. sedgwick seconded the motion for striking out. he had endeavored to view this subject impartially, uninfluenced by any local considerations or circumstances; and under these impressions, he was led to believe, from all the information he had received, whether from abroad, or from an examination in his own mind, of the effects it would produce, that it would be expedient to establish the compensation at a lower sum. he really did not see any solid ground for the apprehensions which his worthy friend from virginia (mr. page) had discovered. he had heard it often said, that if salaries and allowances to public officers were small, you would not be able to command the services of good men; but it was contradicted by the fact. he would instance the late appointments, and ask gentlemen whether they conceived better men could have been procured, if the compensation had been doubled? if it was fair to reason by experience and analogy, he should conclude there would be no difficulty in procuring good and respectable men, to serve in this house, at a less rate than six dollars per day. he had never yet observed that men of small property shrunk from the expense of serving in the councils of their country. he thought the practice of the states was opposed to so high a compensation; many of the state legislatures allowed their members a dollar and ten shillings a day, and yet they were served by good men. he had been informed that it was thought by men of sense and intelligence, that although six dollars might not be too great an allowance for the services of the members of this house, yet, considering the present circumstances of the people, it would be good policy to reduce the same. he inclined to this opinion himself. impressed with these ideas, and knowing that it was generally the opinion of the people, that six dollars was more than a moderate compensation to the members of this house, he should support the motion for striking out with a view to reduce the sum. mr. vining said, the gentleman from maryland (mr. carroll) had taken the subject up in a proper point of view, by inquiring into the point of order. he begged gentlemen to consider the manner in which the subject had been discussed already--twice in the house, and twice in committee; every decision had been the same; why should the point so often determined be again agitated? it is contrary to all parliamentary proceeding, and the house will never know when principles are settled. he was certain that six dollars was but a moderate compensation, if a member is to reside at the metropolis of the united states. he would admit that they could live for less, in some more central part of the country; but the gentlemen from the eastward should recollect that a small allowance would be an argument for removing congress from this city, and when that time arrived, he should consent to a lower sum, but not till then. mr. fitzsimons did not expect to hear the subject discussed again; he thought it unnecessary, because he believed every gentleman would decide more upon his own feelings than upon the arguments that could be adduced; he would, however, just remind the committee, that six dollars was about the average of what the members from the several states had under the late confederation. mr. sedgwick.--according to the observation made by the gentleman from pennsylvania, it will be deemed insolent to reason on this subject: what i offered before, i brought forward with candor; but shall we be precluded from debate, because a subject has been once discussed? sir, when i moved, some days ago, to reduce the pay of the members to five dollars, i was rather indifferent about it; but since then, i have been so well convinced of the necessity there is for such a measure, that i cannot decline pressing it once more upon the committee. mr. stone thought the public mind would not be much influenced by the trifling difference between five and six dollars. they pay greater regard to the decisions of the house, on more important subjects. the gentleman from massachusetts says his correspondents inform him, that the public mind is agitated on this subject; if we are to judge what is the state of the public mind from what our friends say, i should be apt to think the public mind quite unconcerned on the present question; for among all my correspondents, not one has deigned to notice it. the question was now taken on striking out, and there appeared sixteen in favor of it, and thirty-five against it; so the motion passed in the negative. mr. madison renewed the motion for making a difference in the pay of the members of the senate and the house of representatives, which was also lost. mr. goodhue moved to strike out twelve dollars, the pay assigned the speaker, and insert ten. mr. page hoped his motion would share the fate of the two last; he was certain that twelve dollars was not more than a compensation for the speaker's services; three times the sum would not induce him to accept such a situation. mr. burke was against the motion, because he thought that twelve dollars was not a reward for the speaker's labor. the speaker of the house of commons in england has an annual salary of £ sterling. mr. carroll thought the chair of the house of representatives was one of the most important and dignified offices under the government, and as such ought to be provided for. this motion was lost by a great majority. the committee rose and reported progress. thursday, august . _compensation of members._ the house then again went into a committee of the whole, on the bill for allowing a compensation to the members of congress; and after some time spent therein, the committee rose and reported the bill as amended: then the house proceeded to consider the same. mr. thatcher moved to insert five dollars instead of six, as the pay of the members. mr. partridge observed, that money was more valuable now than it had been some years past; if, therefore, six dollars was the average of what the delegates received heretofore, five dollars was now equal to that sum. in short, he was convinced that six dollars was too much, and in justice to his constituents, and his own conscience, he would vote against it, and perpetuate his vote by calling the yeas and nays upon the question. mr. gerry.--i was not present when this subject was last before the house, therefore i cannot say what was understood on this point; but i have seen some account of the debate in the papers, from which i am led to believe, that gentlemen view this matter in a very narrow point of light. it appears to me a question, in which one's popularity is more concerned than any thing else. gentlemen perhaps suppose that by voting for five instead of six dollars, they will establish such a character for economy and patriotism as will redound to their honor; but i can easily conceive, that men of knowledge and sentiment, yes, our constituents in general, will discover, in a glaring light, the ruinous consequences of such a measure in a very short period. the difference of pay, as it now stands in the bill, and what my colleague has moved for, is one dollar a day, and on this important question the yeas and nays are to be called. for my part, i shall deliver my sentiments freely; i am willing to leave the question to the people to decide; i care not about the pay, and i can assure them i never wish to have a seat in this house again: but i wish to guard against the subversion of the public liberty--against the introduction of pensions--against exposing the legislature to corruption. i would have gentlemen consider the principles upon which they are to pay the president, their judges and themselves; the constitution says, the members of this house and the senate shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the united states. the president shall receive, at stated times, a compensation for his services, neither to be increased nor diminished; the judges shall, at stated times, receive for their services a compensation, not to be diminished during their continuance in office; hence it appears that the provision for the three branches is to be made on the same principle, namely a compensation for their services. now, though it is certainly a little embarrassing that we should have to estimate the value of our own services, yet we are bound to do it, and that upon a fixed principle. it has been said, that the parliament of britain receive no pay. this may be the case, but if they examine back, they will find that pay, of a mark per day, was regularly established for them. if we consider the difference of the value of money two or three centuries ago, we shall find this no inconsiderable allowance. but the policy of the british ministry has been, of late, to extend the influence of the crown; the pay of members has dropped into disuse; but every one knows by what means a majority in parliament is obtained and secured. now, such is the extent of these means, that i venture to say, two important members of the house of commons receive more per annum than the whole compensation given to the members of both houses of congress. i leave it to the world to judge, whether the people are likely to be better served by men who receive their wages of the monarch, and who own themselves the servants of the crown, or by those who are immediately paid by and dependent upon themselves. while britain had funds enough to support this plan, they did tolerably well; but when the evil extended itself, and they feared they could no longer continue it without having recourse to other means, they bethought themselves of unconstitutional ones; they were desirous of obtaining a revenue out of this country, and placing upon our establishment men whom they could not provide for at home. this cause lost them america, and this cause will lose them every dependency, where they attempt to play the like game. from this view, the importance of an independent legislature may be seen. will gentlemen then say, that to gratify a thoughtless regard for economy, they will risk the most invaluable part of the government? if gentlemen say it is justice to their constituents, i am willing to appeal to their tribunal; let them know the reason upon which we act, and i will abide by their determination; but i am against being influenced by an apprehension that the people will disapprove our conduct. i am not afraid of being left out, even if it were thought a disgrace to be left out. i would risk that disgrace rather than agree to an establishment which i am convinced would end in the ruin of the liberties of my fellow-citizens. it would give my heart more satisfaction to fall the victim of popular resentment, than to establish my popularity at the expense of their dearest interest. as i mentioned before, the principle upon which we fix our own pay must go through the other branches of the government. your president ought to be retrenched to or , dollars; your judges must be kept poor; and i leave gentlemen to consider the happy consequences arising from a dependent and corrupt judiciary. your legislature may be corrupt, and your executive aspiring; but a firm, independent judiciary will stop the course of devastation, at least it will shield individuals from rapine and injustice; but remove this security, and tyranny and oppression will rush forward as a flood, and overwhelm the country. it has been said, that the proposed compensation bears no proportion to the pay of the members of the state legislatures; let me ask, do members of the state legislatures forego their business? do they leave their state and relinquish their occupations? does the lawyer neglect his client? does the merchant forego his commerce, or the farmer his agriculture? no, sir, the short period they are in session, and the opportunity of being in the vicinity affords them of going home, even during their sitting, enables them to pursue their other avocations, while performing their duties in the legislature. but are not gentlemen who come from the most distant parts of the union, compelled to relinquish every thing to attend here? the representation from the states is so small, that a member can be ill spared at any time; his absence must give him pain, when even that absence is necessary, but cannot be often allowed. in short, i would have the allowance such, as to secure the services of men of abilities in every rank of life; or if that cannot be obtained, i would have all that part of the bill struck out, which relates to a compensation for the services of the members of this house. mr. page said, if gentlemen were satisfied that five dollars per day was enough to compensate them and defray their expenses, because they resided in a part of the union where every thing was to be procured so much cheaper, they might receive that sum and leave the residue in the treasury; by this means they would demonstrate their love of economy and disinterestedness. mr. vining thought gentlemen who were satisfied with four or five dollars, might move to amend the clause, so as to make it read "not exceeding six dollars per day," and then they might charge as much less as they deemed prudent. mr. boudinot said, that whatever measures he supported, he did it upon principle, not from a desire of acquiring popularity; he was satisfied that six dollars per day was not extravagant compensation, but considering the situation of the country, and the delicacy of their own situation, he would vote for five dollars, and he thought it sufficient to secure men of ability. he asked the gentleman from massachusetts (mr. gerry) if he expected the paltry consideration of getting a dollar a day more, was to induce men of abilities and integrity to come forward and render their country their services? he admitted that many gentlemen would find it difficult to bear all their expenses with five dollars a day; but the compensation could not be on a principle of discrimination, and therefore the house could not make particular provision for such gentlemen. others might think a less sum sufficient, but no discrimination could here take place; it was therefore necessary to accommodate, and upon this principle he hoped the house would agree to five dollars per day; nor would this be any variation from the principle established by the committee who reported the bill. they had taken the pay of the delegates to the late congress, and struck an average, which was found to be about five dollars and a half; they had reported six, but from the principles he had before mentioned, he thought it better to agree to five. mr. gerry.--the gentleman from jersey, who was last up, says he does not think six dollars per day more than sufficient; but that he will, from a principle of delicacy, vote for five. i am as great a friend to delicacy as any man, but i would not sacrifice essentials to a false delicacy. it seems, from such sentiments, as if we were afraid to administer a constitution which we are bound to administer. how are those sentiments reconcilable to the oath we have taken? the constitution requires that we shall, by law, compensate the services of the members of both houses. it has been said, that money is now more valuable than it was a few years since. i admit the fact, sir, but four dollars per day was better under the old plan of government than six or eight under this, because a delegate was then engaged for the whole year, but now he is to attend at intervals. some members were continued several years successively, and consequently found it more advantageous. but this mode of reasoning is fallacious; the question ought to be determined upon its own merits. but if gentlemen are for sacrificing justice and propriety to delicacy, or any other motive, let them come forward and agree to what i mentioned before; let them strike out all that relates to their own compensation; they are called upon by their own arguments to do this. mr. sedgwick did not rise to speak to the question, but merely to reply to some observations that have fallen from the gentlemen who opposed the present motion, particularly his colleague. the want of candor and liberality might render gentlemen unpleasant in their situation; but the consequences arising from such causes, were often still more unpleasant. his colleague had insinuated, in a pointed manner, that the gentlemen who were in favor of a reduction, were actuated by motives not only improper and unworthy of a man of character, but such as appeared base to his mind. it was said, that those who proposed this reduction, did it merely to court popularity. whether the gentleman, his colleague, who brought forward the motion to-day, sacrificed more at that shrine than his colleague who had opposed it, he left to those to determine who noticed their conduct; but he believed they could never be charged with such meanness. for his own part, if he had sacrificed in this way, as his conduct had always been consistent with his sentiments, it must have been known, and his character would long ere this have been blasted in the manner it would have justly deserved. if he had done it heretofore, he hoped the stigma would not be affixed upon him, for a conduct founded upon the solid and substantial reasons he had advanced when the subject was last before the house. mr. boudinot.--the gentleman from massachusetts makes me say, that six dollars a day is not too much. i said it was not extravagant, but more than i thought was proper upon due consideration of the circumstances of this country. this is still my opinion, and upon it i shall ground my vote. i believe no gentleman in this house regards his popularity, when set in competition with his duty; my conduct has ever been open, and i leave the world to judge from that what are my principles. i shall therefore take no further notice of what has been said on that subject, but conclude with wishing, for the honor of the house, and the dignity of the gentlemen, that all our debates may be conducted with candor and moderation. mr. ames wished the call for the yeas and nays was withdrawn; because he thought they lost their usefulness by a too frequent use. he was in favor of the motion, but he did not wish to have his name entered on the minutes on that account. mr. partridge said, it was well known he never courted popularity; he never sought a seat in this house, or any other public body; but he insisted upon his right, as a member, to call for the yeas and nays, when he thought the public interest might be benefited by it; however, as the bill was not to be finished to-day, he would waive that call. the question was taken on mr. goodhue's motion, and passed in the negative, by a large majority. the bill was ordered to be engrossed, and the house adjourned. thursday, august . _amendments to the constitution._ the house then resolved itself into a committee of the whole, mr. boudinot in the chair, and took the amendments under consideration. the first article ran thus: "in the introductory paragraph of the constitution, before the words 'we the people,' add 'government being intended for the benefit of the people, and the rightful establishment thereof being derived from their authority alone.'" mr. sherman.--i believe, mr. chairman, this is not the proper mode of amending the constitution. we ought not to interweave our propositions into the work itself, because it will be destructive of the whole fabric. we might as well endeavor to mix brass, iron, and clay, as to incorporate such heterogeneous articles; the one contradictory to the other. its absurdity will be discovered by comparing it with a law. would any legislature endeavor to introduce into a former act a subsequent amendment, and let them stand so connected? when an alteration is made in an act, it is done by way of supplement; the latter act always repealing the former in every specified case of difference. besides this, sir, it is questionable whether we have the right to propose amendments in this way. the constitution is the act of the people, and ought to remain entire. but the amendments will be the act of the state governments. again, all the authority we possess is derived from that instrument; if we mean to destroy the whole, and establish a new constitution, we remove the basis on which we mean to build. for these reasons, i will move to strike out that paragraph and substitute another. the paragraph proposed was to the following effect: _resolved by the senate and house of representatives of the united states in congress assembled_, that the following articles he proposed as amendments to the constitution, and when ratified by three-fourths of the state legislatures shall become valid to all intents and purposes, as part of the same. under this title, the amendments might come in nearly as stated in the report, only varying the phraseology so as to accommodate them to a supplementary form. mr. madison.--form, sir, is always of less importance than the substance; but on this occasion, i admit that form is of some consequence, and it will be well for the house to pursue that which, upon reflection, shall appear to be the most eligible. now it appears to me, that there is a neatness and propriety in incorporating the amendments into the constitution itself; in that case the system will remain uniform and entire; it will certainly be more simple, when the amendments are interwoven into those parts to which they naturally belong, than it will if they consist of separate and distinct parts. we shall then be able to determine its meaning without references or comparison; whereas, if they are supplementary, its meaning can only be ascertained by a comparison of the two instruments, which will be a very considerable embarrassment. it will be difficult to ascertain to what parts of the instrument the amendments particularly refer; they will create unfavorable comparisons; whereas, if they are placed upon the footing here proposed, they will stand upon as good foundation as the original work. nor is it so uncommon a thing as gentlemen suppose; systematic men frequently take up the whole law, and, with its amendments and alterations, reduce it into one act. i am not, however, very solicitous about the form, provided the business is but well completed. mr. smith did not think the amendment proposed by the honorable gentleman from connecticut was compatible with the constitution, which declared, that the amendments recommended by congress, and ratified by the legislatures of three-fourths of the several states, should be part of this constitution; in which case it would form one complete system; but according to the idea of the amendment, the instrument is to have five or six suits of improvements. such a mode seems more calculated to embarrass the people than any thing else, while nothing in his opinion was a juster cause of complaint than the difficulties of knowing the law, arising from legislative obscurities that might easily be avoided. he said, that it had certainly been the custom in several of the state governments, to amend their laws by way of supplement. but south carolina had been an instance of the contrary practice, in revising the old code; instead of making acts in addition to acts, which is always attended with perplexity, she has incorporated them, and brought them forward as a complete system, repealing the old. this is what he understood was intended to be done by the committee; the present copy of the constitution was to be done away, and a new one substituted in its stead. mr. livermore was clearly of opinion, that whatever amendments were made to the constitution, they ought to stand separate from the original instrument. we have no right, said he, to alter a clause, any otherwise than by a new proposition. we have well-established precedents for such a mode of procedure in the practice of the british parliament, and the state legislatures throughout america. i do not mean, however, to assert that there has been no instance of a repeal of the whole law on enacting another; but this has generally taken place on account of the complexity of the original, with its supplements. were we a mere legislative body, no doubt it might be warrantable in us to pursue a similar method; but it is questionable whether it is possible for us, consistent with the oath we have taken, to attempt a repeal of the constitution of the united states, by making a new one to substitute in its place; the reason of this is grounded on a very simple consideration. it is by virtue of the present constitution, i presume, that we attempt to make another; now, if we proceed to the repeal of this, i cannot see upon what authority we shall erect another; if we destroy the base, the superstructure falls of course. at some future day it may be asked upon what authority we proceeded to raise and appropriate public moneys. we suppose we do it in virtue of the present constitution; but it may be doubted whether we have a right to exercise any of its authorities while it is suspended, as it will certainly be from the time that two-thirds of both houses have agreed to submit it to the state legislatures; so that, unless we mean to destroy the whole constitution, we ought to be careful how we attempt to amend it in the way proposed by the committee. from hence, i presume it will be more prudent to adopt the mode proposed by the gentleman from connecticut, than it will be to risk the destruction of the whole by proposing amendments in the manner recommended by the committee. mr. vining disliked a supplementary form, and said it was a bad reason to urge the practice of former ages, when there was a more convenient method of doing the business at hand. he had seen an act entitled an act to amend a supplement to an act entitled an act for altering part of an act entitled an act for certain purposes therein mentioned. if gentlemen were disposed to run into such jargon in amending and altering the constitution, he could not help it; but he trusted they would adopt a plainness and simplicity of style on this and every other occasion, which should be easily understood. if the mode proposed by the gentleman from connecticut was adopted, the system would be distorted, and, like a careless written letter, have more attached to it in a postscript than was contained in the original composition. the constitution being a great and important work, ought all to be brought into one view, and made as intelligible as possible. mr. clymer was of opinion with the gentleman from connecticut, that the amendments ought not to be incorporated in the body of the work, which he hoped would remain a monument to justify those who made it; by a comparison, the world would discover the perfection of the original, and the superfluity of the amendments. he made this distinction, because he did not conceive any of the amendments essential, but as they were solicited by his fellow-citizens, and for that reason they were acquiesced in by others; he therefore wished the motion for throwing them into a supplementary form might be carried. mr. stone.--it is not a matter of much consequence, with respect to the preservation of the original instrument, whether the amendments are incorporated or made distinct; because the records will always show the original form in which it stood. but in my opinion, we ought to mark its progress with truth in every step we take. if the amendments are incorporated in the body of the work, it will appear, unless we refer to the archives of congress, that george washington, and the other worthy characters who composed the convention, signed an instrument which they never had in contemplation. the one to which he affixed his signature purports to be adopted by the unanimous consent of the delegates from every state there assembled. now if we incorporate these amendments, we must undoubtedly go further, and say that the constitution so formed was defective, and had need of alteration; we therefore purpose to repeal the old and substitute a new one in its place. from this consideration alone, i think we ought not to pursue the line of conduct drawn for us by the committee. this perhaps is not the last amendment the constitution may receive; we ought therefore to be careful how we set a precedent which, in dangerous and turbulent times, may unhinge the whole. mr. livermore.--the mode adopted by the committee might be very proper, provided congress had the forming of a constitution in contemplation; then they, or an individual member, might propose to strike out a clause and insert another, as is done with respect to article , section . but certainly no gentleman acquainted with legislative business would pretend to alter and amend, in this manner, a law already passed. he was convinced it could not be done properly in any other way than by the one proposed by the gentleman from connecticut. mr. gerry asked, if the mode could make any possible difference, provided the sanction was the same; or whether it would operate differently in any one instance? if it will not, we are disputing about form, and the question will turn on the expediency. now one gentleman tells you, that he is so attached to this instrument, that he is unwilling to lose any part of it; therefore, to gratify him, we may throw it into a supplementary form. but let me ask, will not this as effectually destroy some parts, as if the correction had been made by way of incorporation? or will posterity have a more favorable opinion of the original, because it has been amended by distinct acts? for my part, i cannot see what advantage can accrue from adopting the motion of the honorable gentleman from connecticut, unless it be to give every one the trouble of erasing out of his copy of the constitution certain words and sentences, and inserting others. but, perhaps, in our great veneration for the original composition, we may go further, and pass an act to prohibit these interpolations, as it may injure the text. it is said that the present form of the amendments is contrary to the th article. i will not undertake to define the extent of the word amendment, as it stands in the fifth article; but i suppose if we proposed to change the division of the powers given to the three branches of the government, and that proposition is accepted and ratified by three-fourths of the state legislatures, it will become as valid, to all intents and purposes, as any part of the constitution; but if it is the opinion of gentlemen that the original is to be kept sacred, amendments will be of no use, and had better be omitted; whereas, on the other hand, if they are to be received as equal in authority we shall have five or six constitutions, perhaps differing in material points from each other, but all equally valid; so that they may require a man of science to determine what is or is not the constitution. this will certainly be attended with great inconvenience, as the several states are bound not to make laws contradictory thereto, and all officers are sworn to support it, without knowing precisely what it is. mr. stone asked the gentleman last up, how he meant to have the amendments incorporated? was it intended to have the constitution republished, and the alterations inserted in their proper places? he did not see how it was practicable to propose amendments, without making out a new constitution, in the manner brought forward by the committee. mr. lawrence could not conceive how gentlemen meant to engraft the amendments into the constitution. the original one, executed by the convention at philadelphia, was lodged in the archives of the late congress; it was impossible for this house to take, and correct, and interpolate that without making it speak a different language: this would be supposing several things which never were contemplated. but what would become of the acts of congress? they will certainly be vitiated, unless they are provided for by an additional clause in the constitution. mr. benson said, that this question had been agitated in the select committee, and determined in favor of the form in which it was reported; he believed this decision was founded in a great degree upon the recommendation of the state conventions, which had proposed amendments in this very form. this pointed out the mode most agreeable to the people of america, and therefore the one most eligible for congress to pursue; it will likewise be the most convenient way. suppose the amendments ratified by the several states; congress may order a number of copies to be printed, into which the alterations will be inserted, and the work stand perfect and entire. mr. madison.--the gentleman last up has left me but one remark to add, and that is, if we adopt the amendment, we shall so far unhinge the business, as to occasion alterations in every article and clause of the report. mr. hartley hoped the committee would not agree to the alteration, because it would perplex the business. he wished the propositions to be simple and entire, that the state legislatures might decide without hesitation, and every man know what was the ground on which he rested his political welfare. besides, the consequent changes which the motion would induce, were such as, he feared, would take up some days, if not weeks; and the time of the house was too precious to be squandered away in discussing mere matter of form. mr. jackson.--i do not like to differ with gentlemen about form; but as so much has been said, i wish to give my opinion; it is this: that the original constitution ought to remain inviolate, and not be patched up, from time to time, with various stuffs resembling joseph's coat of many colors. some gentlemen talk of repealing the present constitution, and adopting an improved one. if we have this power, we may go on from year to year, making new ones; and in this way, we shall render the basis of the superstructure the most fluctuating thing imaginable, and the people will never know what the constitution is. as for the alteration proposed by the committee, to prefix before "we the people" certain dogmas, i cannot agree to it; the words, as they now stand, speak as much as it is possible to speak; it is a practical recognition of the right of the people to ordain and establish governments, and is more expressive than any other mere paper declaration. but why will gentlemen contend for incorporating amendments into the constitution? they say, that it is necessary for the people to have the whole before them in one view. have they precedent for this assertion? look at the constitution of great britain; is that all contained in one instrument? it is well known, that _magna charta_ was extorted by the barons from king john some centuries ago. has that been altered since by the incorporation of amendments? or does it speak the same language now, as it did at the time it was obtained? sir, it is not altered a tittle from its original form. yet there have been many amendments and improvements in the constitution of britain since that period. in the subsequent reign of his son, the great charters were confirmed with some supplemental acts. is the _habeas corpus_ act, or the statute _de tallagio non concedendo_ incorporated in _magna charta_? and yet there is not an englishman but would spill the last drop of his blood in their defence; it is these, with some other acts of parliament and _magna charta_, that form the basis of english liberty. we have seen amendments to their constitution during the present reign, by establishing the independence of the judges, who are hereafter to be appointed during good behavior; formerly they were at the pleasure of the crown. but was this done by striking out and inserting other words in the great charter? no, sir, the constitution is composed of many distinct acts; but an englishman would be ashamed to own that, on this account, he could not ascertain his own privileges or the authority of the government. the constitution of the union has been ratified and established by the people; let their act remain inviolable; if any thing we can do has a tendency to improve it, let it be done, but without mutilating and defacing the original. mr. sherman.--if i had looked upon this question as mere matter of form, i should not have brought it forward or troubled the committee with such a lengthy discussion. but, sir, i contend that amendments made in the way proposed by the committee are void. no gentleman ever knew an addition and alteration introduced into an existing law, and that any part of such law was left in force; but if it was improved or altered by a supplemental act, the original retained all its validity and importance, in every case where the two were not incompatible. but if these observations alone should be thought insufficient to support my motion, i would desire gentlemen to consider the authorities upon which the two constitutions are to stand. the original was established by the people at large, by conventions chosen by them for the express purpose. the preamble to the constitution declares the act: but will it be a truth in ratifying the next constitution, which is to be done perhaps by the state legislatures, and not conventions chosen for the purpose? will gentlemen say it is "we the people" in this case? certainly they cannot; for, by the present constitution, we, nor all the legislatures in the union together, do not possess the power of repealing it. all that is granted us by the th article is, that whenever we shall think it necessary, we may propose amendments to the constitution; not that we may propose to repeal the old, and substitute a new one. gentlemen say, it would be convenient to have it in one instrument, that people might see the whole at once; for my part, i view no difficulty on this point. the amendments reported are a declaration of rights; the people are secure in them, whether we declare them or not; the last amendment but one provides that the three branches of government shall each exercise its own rights. this is well secured already; and, in short, i do not see that they lessen the force of any article in the constitution; if so, there can be little more difficulty in comprehending them whether they are combined in one, or stand distinct instruments. mr. smith read extracts from the amendments proposed by several of the state conventions at the time they ratified the constitution, from which, he said, it appeared that they were generally of opinion that the phraseology of the constitution ought to be altered; nor would this mode of proceeding repeal any part of the constitution but such as it touched, the remainder will be in force during the time of considering it and ever after. as to the observations made by the honorable gentleman from georgia, respecting the amendments made to the constitution of great britain, they did not apply; the cases were nothing like similar, and, consequently, could not be drawn into precedent. the constitution of britain is neither the _magna charta_ of john, nor the _habeas corpus_ act, nor all the charters put together; it is what the parliament wills. it is true, there are rights granted to the subject that cannot be resumed; but the constitution, or form of government, may be altered by the authority of parliament, whose power is absolute without control. mr. sherman.--the gentlemen who oppose the motion say we contend for matter of form; they think it nothing more. now we say we contend for substance, and therefore cannot agree to amendments in this way. if they are so desirous of having the business completed, they had better sacrifice what they consider but a matter of indifference to gentlemen, to go more unanimously along with them in altering the constitution. the question on mr. sherman's motion was now put and lost.[ ] friday, august . abiel foster, from new hampshire, appeared and took his seat. saturday, august . _amendments to the constitution._ freedom of conscience. article . section . between paragraphs two and three insert, "no religion shall be established by law, nor shall the equal rights of conscience be infringed." mr. sylvester had some doubts of the propriety of the mode of expression used in this paragraph. he apprehended that it was liable to a construction different from what had been made by the committee. he feared it might be thought to have a tendency to abolish religion altogether. mr. vining suggested the propriety of transposing the two members of the sentence. mr. gerry said, it would read better if it was, that no religious doctrine shall be established by law. mr. sherman thought the amendment altogether unnecessary, inasmuch as congress had no authority whatever delegated to them by the constitution to make religious establishments; he would, therefore, move to have it struck out. mr. carroll.--as the rights of conscience are, in their nature, of peculiar delicacy, and will little bear the gentlest touch of governmental hand; and as many sects have concurred in opinion, that they are not well secured under the present constitution, he said he was much in favor of adopting the words. he thought it would tend more towards conciliating the minds of the people to the government than almost any other amendment he had heard proposed. he would not contend with gentlemen about the phraseology, his object was to secure the substance in such a manner as to satisfy the wishes of the honest part of the community. mr. madison said, he apprehended the meaning of the words to be, that congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship god in any manner contrary to their conscience. whether the words are necessary or not, he did not mean to say, but they had been required by some of the state conventions, who seemed to entertain an opinion that under the clause of the constitution, which gave power to congress to make all laws necessary and proper to carry into execution the constitution, and the laws made under it, enabled them to make laws of such a nature as might infringe the rights of conscience, and establish a national religion; to prevent these effects he presumed the amendment was intended, and he thought it as well expressed as the nature of the language would admit. mr. huntington said, that he feared, with the gentleman first up on this subject, that the words might be taken in such a latitude as to be extremely hurtful to the cause of religion. he understood the amendment to mean what had been expressed by the gentleman from virginia; but others might find it convenient to put another construction upon it. the ministers of their congregations to the eastward were maintained by the contributions of those who belonged to their society; the expense of building meeting-houses was contributed in the same manner. these things were regulated by by-laws. if an action was brought before a federal court on any of these cases, the person who had neglected to perform his engagements could not be compelled to do it; for a support of ministers, or building of places of worship, might be construed into a religious establishment. by the charter of rhode island, no religion could be established by law; he could give a history of the effects of such a regulation; indeed the people were now enjoying the blessed fruits of it. he hoped, therefore, the amendment would be made in such a way as to secure the rights of conscience, and a free exercise of the rights of religion, but not to patronize those who professed no religion at all. mr. madison thought, if the word national was inserted before religion, it would satisfy the minds of honorable gentlemen. he believed that the people feared one sect might obtain a pre-eminence, or two combine together, and establish a religion to which they would compel others to conform. he thought if the word national was introduced, it would point the amendment directly to the object it was intended to prevent. mr. livermore was not satisfied with that amendment; but he did not wish them to dwell long on the subject. he thought it would be better if it was altered, and made to read in this manner, that congress shall make no laws touching religion, or infringing the rights of conscience. mr. gerry did not like the term national, proposed by the gentleman from virginia, and he hoped it would not be adopted by the house. it brought to his mind some observations that had taken place in the conventions at the time they were considering the present constitution. it had been insisted upon by those who were called anti-federalists, that this form of government consolidated the union; the honorable gentleman's motion shows that he considers it in the same light. those who were called anti-federalists at that time complained that they had injustice done them by the title, because they were in favor of a federal government, and the others were in favor of a national one; the federalists were for ratifying the constitution as it stood, and the others not until amendments were made. their names then ought not to have been distinguished by federalists and anti-federalists, but rats and anti-rats. mr. madison withdrew his motion, but observed that the words "no national religion shall be established by law," did not imply that the government was a national one; the question was then taken on mr. livermore's motion, and passed in the affirmative, thirty-one for, and twenty against it. _amendments to the constitution._ right of instruction. "the freedom of speech and of the press, and the right of the people peaceably to assemble and consult for the common good, and to apply to the government for a redress of grievances," being the clause under consideration, mr. tucker, of south carolina, moved to add thereto these words--_to instruct their representatives_. mr. hartley wished the motion had not been made, for gentlemen acquainted with the circumstances of this country, and the history of the country from which we separated, differed exceedingly on this point. the members of the house of representatives, said he, are chosen for two years, the members of the senate for six. according to the principles laid down in the constitution, it is presumable that the persons elected know the interests and the circumstances of their constituents, and being checked in their determinations by a division of the legislative power into two branches, there is little danger of error. at least it ought to be supposed that they have the confidence of the people during the period for which they are elected; and if, by misconduct, they forfeit it, their constituents have the power of leaving them out at the expiration of that time--thus they are answerable for the part they have taken in measures that may be contrary to the general wish. representation is the principle of our government; the people ought to have confidence in the honor and integrity of those they send forward to transact their business; their right to instruct them is a problematical subject. we have seen it attended with bad consequences, both in england and america. when the passions of the people are excited, instructions have been resorted to and obtained, to answer party purposes; and although the public opinion is generally respectable, yet at such moments it has been known to be often wrong; and happy is that government composed of men of firmness and wisdom to discover, and resist popular error. if, in a small community, where the interests, habits, and manners are neither so numerous nor diversified, instructions bind not, what shall we say of instructions to this body? can it be supposed that the inhabitants of a single district in a state, are better informed with respect to the general interests of the union, than a select body assembled from every part? can it be supposed that a part will be more desirous of promoting the good of the whole than the whole will of the part? i apprehend, sir, that congress will be the best judges of proper measures, and that instructions will never be resorted to but for party purposes, when they will generally contain the prejudices and acrimony of the party, rather than the dictates of honest reason and sound policy. in england this question has been considerably agitated. the representatives of some towns in parliament have acknowledged, and submitted to the binding force of instructions, while the majority have thrown off the shackles with disdain. i would not have this precedent influence our decision; but let the doctrine be tried upon its own merits, and stand or fall as it shall be found to deserve. it appears to my mind, that the principle of representation is distinct from an agency, which may require written instructions. the great end of meeting is to consult for the common good; but can the common good be discerned without the object is reflected and shown in every light. a local or partial view does not necessarily enable any man to comprehend it clearly; this can only result from an inspection into the aggregate. instructions viewed in this light will be found to embarrass the best and wisest men. and were all the members to take their seats in order to obey instructions, and those instructions were as various as it is probable they would be, what possibility would there exist of so accommodating each to the other as to produce any act whatever? perhaps a majority of the whole might not be instructed to agree to any one point, and is it thus the people of the united states propose to form a more perfect union, provide for the common defence, and promote the general welfare? sir, i have known within my own time so many inconveniences and real evils arise from adopting the popular opinions on the moment, that, although i respect them as much as any man, i hope this government will particularly guard against them, at least that they will not bind themselves by a constitutional act, and by oath, to submit to their influence; if they do, the great object which this government has been established to attain, will inevitably elude our grasp on the uncertain and veering winds of popular commotion. mr. page.--the gentleman from pennsylvania tells you, that in england this principle is doubted; how far this is consonant with the nature of the government i will not pretend to say; but i am not astonished to find that the administrators of a monarchical government are unassailable by the weak voice of the people; but under a democracy, whose great end is to form a code of laws congenial with the public sentiment, the popular opinion ought to be collected and attended to. our present object is, i presume, to secure to our constituents and to posterity these inestimable rights. our government is derived from the people; of consequence the people have a right to consult for the common good; but to what end will this be done, if they have not the power of instructing their representatives? instruction and representation in a republic, appear to me to be inseparably connected; but were i the subject of a monarch, i should doubt whether the public good did not depend more upon the prince's will than the will of the people. i should dread a popular assembly consulting for the public good, because, under its influence, commotions and tumults might arise that would shake the foundation of the monarch's throne, and make the empire tremble in expectation. the people of england have submitted the crown to the hanover family, and have rejected the stuarts. if instructions upon such a revolution were considered binding, it is difficult to know what would have been the effects. it might be well, therefore, to have the doctrine exploded from that kingdom; but it will not be advanced as a substantial reason in favor of our treading in the same steps. the honorable gentleman has said, that when once the people have chosen a representative, they must rely on his integrity and judgment during the period for which he is elected. i think, sir, to doubt the authority of the people to instruct their representatives, will give them just cause to be alarmed for their fate. i look upon it as a dangerous doctrine, subversive of the great end for which the united states have confederated. every friend of mankind, every well-wisher of his country, will be desirous of obtaining the sense of the people on every occasion of magnitude; but how can this be so well expressed as in instructions to their representatives? i hope, therefore, that gentlemen will not oppose the insertion of it in this part of the report. mr. clymer.--i hope the amendment will not be adopted; but if our constituents choose to instruct us, that they may be left at liberty to do so. do gentlemen foresee the extent of these words? if they have a constitutional right to instruct us, it infers that we are bound by those instructions; and as we ought not to decide constitutional questions by implication, i presume we shall be called upon to go further, and expressly declare the members of the legislature bound by the instruction of their constituents. this is a most dangerous principle, utterly destructive of all ideas of an independent and deliberative body, which are essential requisites in the legislatures of free governments; they prevent men of abilities and experience from rendering those services to the community that are in their power, destroying the object contemplated by establishing an efficient general government, and rendering congress a mere passive machine. mr. sherman.--it appears to me, that the words are calculated to mislead the people, by conveying an idea that they have a right to control the debates of the legislature. this cannot be admitted to be just, because it would destroy the object of their meeting. i think, when the people have chosen a representative, it is his duty to meet others from the different parts of the union, and consult, and agree with them to such acts as are for the general benefit of the whole community. if they were to be guided by instructions, there would be no use in deliberation; all that a man would have to do, would be to produce his instructions, and lay them on the table, and let them speak for him. from hence i think it may be fairly inferred, that the right of the people to consult for the common good can go no further than to petition the legislature, or apply for a redress of grievances. it is the duty of a good representative to inquire what measures are most likely to promote the general welfare, and, after he has discovered them, to give them his support. should his instructions, therefore, coincide with his ideas on any measure, they would be unnecessary; if they were contrary to the conviction of his own mind, he must be bound by every principle of justice to disregard them. mr. jackson was in favor of the right of the people to assemble and consult for the common good; it had been used in this country as one of the best checks on the british legislature in their unjustifiable attempts to tax the colonies without their consent. america had no representatives in the british parliament, therefore they could instruct none, yet they exercised the power of consultation to a good effect. he begged gentlemen to consider the dangerous tendency of establishing such a doctrine; it would necessarily drive the house into a number of factions. there might be different instructions from every state, and the representation from each state would be a faction to support its own measures. if we establish this as a right, we shall be bound by those instructions; now, i am willing to leave both the people and representatives to their own discretion on this subject. let the people consult and give their opinion; let the representative judge of it; and if it is just, let him govern himself by it as a good member ought to do; but if it is otherwise, let him have it in his power to reject their advice. what may be the consequence of binding a man to vote in all cases according to the will of others? he is to decide upon a constitutional point, and on this question his conscience is bound by the obligation of a solemn oath; you now involve him in a serious dilemma. if he votes according to his conscience, he decides against his instructions; but in deciding against his instructions, he commits a breach of the constitution, by infringing the prerogative of the people, secured to them by this declaration. in short, it will give rise to such a variety of absurdities and inconsistencies, as no prudent legislature would wish to involve themselves in. mr. gerry.--by the checks provided in the constitution, we have good grounds to believe that the very framers of it conceived that the government would be liable to maladministration, and i presume that the gentlemen of this house do not mean to arrogate to themselves more perfection than human nature has as yet been found to be capable of; if they do not, they will admit an additional check against abuses which this, like every other government, is subject to. instruction from the people will furnish this in a considerable degree. it has been said that the amendment proposed by the honorable gentleman from south carolina (mr. tucker) determines this point, "that the people can bind their representatives to follow their instructions." i do not conceive that this necessarily follows. i think the representative, notwithstanding the insertion of these words, would be at liberty to act as he pleased; if he declined to pursue such measures as he was directed to attain, the people would have a right to refuse him their suffrages at a future election. now, though i do not believe the amendment would bind the representatives to obey the instructions, yet i think the people have a right both to instruct and bind them. do gentlemen conceive that on any occasion instructions would be so general as to proceed from all our constituents? if they do, it is the sovereign will; for gentlemen will not contend that the sovereign will presides in the legislature. the friends and patrons of this constitution have always declared that the sovereignty resides in the people, and that they do not part with it on any occasion; to say the sovereignty vests in the people and that they have not a right to instruct and control their representatives is absurd to the last degree. they must either give up their principle, or grant that the people have a right to exercise their sovereignty to control the whole government, as well as this branch of it. but the amendment does not carry the principle to such an extent, it only declares the right of the people to send instructions; the representative will, if he thinks proper, communicate his instructions to the house, but how far they shall operate on his conduct, he will judge for himself. the honorable gentleman from georgia (mr. jackson) supposes that instructions will tend to generate factions in this house; but he did not see how it could have that effect, any more than the freedom of debate had. if the representative entertains the same opinion with his constituents, he will decide with them in favor of the measure; if other gentlemen, who are not instructed on this point, are convinced by argument that the measure is proper, they will also vote with them; consequently the influence of debate and of instruction is the same. the gentleman says further, that the people have the right of instructing their representatives; if so, why not declare it? does he mean that it shall lie dormant and never be exercised? if so, it will be a right of no utility. but much good may result from a declaration in the constitution that they possess this privilege; the people will be encouraged to come forward with their instructions, which will form a fund of useful information for the legislature. we cannot, i apprehend, be too well informed of the true state, condition, and sentiment of our constituents, and perhaps this is the best mode in our power of obtaining information. i hope we shall never shut our ears against that information which is to be derived from the petitions and instructions of our constituents. i hope we shall never presume to think that all the wisdom of this country is concentrated within the walls of this house. men, unambitious of distinctions from their fellow-citizens, remain within their own domestic walk, unheard of and unseen, possessing all the advantages resulting from a watchful observance of public men and public measures, whose voice, if we would descend to listen to it, would give us knowledge superior to what could be acquired amidst the cares and bustles of a public life; let us then adopt the amendment, and encourage the diffident to enrich our stock of knowledge with the treasure of their remarks and observations. mr. madison.--i think the committee acted prudently in omitting to insert these words in the report they have brought forward; if, unfortunately, the attempt of proposing amendments should prove abortive, it will not arise from the want of a disposition in the friends of the constitution to do what is right with respect to securing the rights and privileges of the people of america, but from the difficulties arising from discussing and proposing abstract propositions of which the judgment may not be convinced. i venture to say, that if we confine ourselves to an enumeration of simple, acknowledged principles, the ratification will meet with but little difficulty. amendments of a doubtful nature will have a tendency to prejudice the whole system; the proposition now suggested partakes highly of this nature. it is doubted by many gentlemen here; it has been objected to in intelligent publications throughout the union; it is doubted by many members of the state legislatures. in one sense this declaration is true, in many others it is certainly not true; in the sense in which it is true, we have asserted the right sufficiently in what we have done; if we mean nothing more than this, that the people have a right to express and communicate their sentiments and wishes, we have provided for it already. the right of freedom of speech is secured; the liberty of the press is expressly declared to be beyond the reach of this government; the people may therefore publicly address their representatives, may privately advise them, or declare their sentiments by petition to the whole body; in all these ways they may communicate their will. if gentlemen mean to go further, and to say that the people have a right to instruct their representatives in such a sense as that the delegates are obliged to conform to those instructions, the declaration is not true. suppose they instruct a representative, by his vote, to violate the constitution; is he at liberty to obey such instructions? suppose he is instructed to patronize certain measures, and from circumstances known to him, but not to his constituents, he is convinced that they will endanger the public good; is he obliged to sacrifice his own judgment to them? is he absolutely bound to perform what he is instructed to do? suppose he refuses, will his vote be the less valid, or the community be disengaged from that obedience which is due to the laws of the union? if his vote must inevitably have the same effect, what sort of a right is this in the constitution, to instruct a representative who has a right to disregard the order, if he pleases? in this sense the right does not exist, in the other sense it does exist, and is provided largely for. the honorable gentleman from massachusetts asks if the sovereignty is not with the people at large. does he infer that the people can, in detached bodies, contravene an act established by the whole people? my idea of the sovereignty of the people is, that the people can change the constitution if they please; but while the constitution exists, they must conform themselves to its dictates. but i do not believe that the inhabitants of any district can speak the voice of the people; so far from it, their ideas may contradict the sense of the whole people; hence the consequence that instructions are binding on the representative is of a doubtful, if not of a dangerous nature. i do not conceive, therefore, that it is necessary to agree to the proposition now made; so far as any real good is to arise from it, so far that real good is provided for; so far as it is of a doubtful nature, so far it obliges us to run the risk of losing the whole system. mr. smith, (of south carolina.)--i am opposed to this motion, because i conceive it will operate as a partial inconvenience to the more distant states. if every member is to be bound by instructions how to vote, what are gentlemen from the extremities of the continent to do? members from the neighboring states can obtain their instructions earlier than those from the southern ones, and i presume that particular instructions will be necessary for particular measures; of consequence, we vote perhaps against instructions on their way to us, or we must decline voting at all. but what is the necessity of having a numerous representation? one member from a state can receive the instructions, and by his vote answer all the purposes of many, provided his vote is allowed to count for the proportion the state ought to send; in this way the business might be done at a less expense than having one or two hundred members in the house, which had been strongly contended for yesterday. mr. stone.--i think the clause would change the government entirely; instead of being a government founded upon representation, it would be a democracy of singular properties. i differ from the gentleman from virginia (mr. madison), if he thinks this clause would not bind the representative; in my opinion, it would bind him effectually, and i venture to assert, without diffidence, that any law passed by the legislature would be of no force, if a majority of the members of this house were instructed to the contrary, provided the amendment became part of the constitution. what would follow from this? instead of looking in the code of laws passed by congress, your judiciary would have to collect and examine the instructions from the various parts of the union. it follows very clearly from hence, that the government would be altered from a representative one to a democracy, wherein all laws are made immediately by the voice of the people. this is a power not to be found in any part of the earth except among the swiss cantons; there the body of the people vote upon the laws, and give instructions to their delegates. but here we have a different form of government; the people at large are not authorized under it to vote upon the law, nor did i ever hear that any man required it. why, then, are we called upon to propose amendments subversive of the principles of the constitution, which were never desired? several members now called for the question, and the chairman being about to put the same: mr. gerry.--gentlemen seem in a great hurry to get this business through. i think, mr. chairman, it requires a further discussion; for my part, i had rather do less business and do it well, than precipitate measures before they are fully understood. the honorable gentleman from virginia (mr. madison) stated, that if the proposed amendments are defeated, it will be by the delay attending the discussion of doubtful propositions; and he declares this to partake of that quality. it is natural, sir, for us to be fond of our own work. we do not like to see it disfigured by other hands. that honorable gentleman brought forward a string of propositions; among them was the clause now proposed to be amended: he is no doubt ready for the question, and determined not to admit what we think an improvement. the gentlemen who were on the committee, and brought in the report, have considered the subject, and are also ripe for a decision. but other gentlemen may crave a like indulgence. is not the report before us for deliberation and discussion, and to obtain the sense of the house upon it; and will not gentlemen allow us a day or two for these purposes, after they have forced us to proceed upon them at this time? i appeal to their candor and good sense on the occasion, and am sure not to be refused; and i must inform them now, that they may not be surprised hereafter, that i wish all the amendments proposed by the respective states to be considered. gentlemen say it is necessary to finish the subject, in order to reconcile a number of our fellow-citizens to the government. if this is their principle, they ought to consider the wishes and intentions which the convention has expressed for them; if they do this, they will find that they expect and wish for the declaration proposed by the honorable gentleman over the way (mr. tucker), and, of consequence, they ought to agree to it; and why it, with others recommended in the same way, were not reported, i cannot pretend to say; the committee know this best themselves. the honorable gentleman near me (mr. stone) says, that the laws passed contrary to instruction will be nugatory. and other gentlemen ask, if their constituents instruct them to violate the constitution, whether they must do it. sir, does not the constitution declare that all laws passed by congress are paramount to the laws and constitutions of the several states; if our decrees are of such force as to set aside the state laws and constitutions, certainly they may be repugnant to any instructions whatever, without being injured thereby. but can we conceive that our constituents would be so absurd as to instruct us to violate our oath, and act directly contrary to the principles of a government ordained by themselves? we must look upon them to be absolutely abandoned and false to their own interests, to suppose them capable of giving such instructions. if this amendment is introduced into the constitution, i do not think we shall be much troubled with instructions; a knowledge of the right will operate to check a spirit that would render instruction necessary. the honorable gentleman from virginia asked, will not the affirmative of a member who votes repugnant to his instructions bind the community as much as the votes of those who conform? there is no doubt, sir, but it will; but does this tend to show that the constituent has no right to instruct? surely not. i admit, sir, that instructions contrary to the constitution ought not to bind, though the sovereignty resides in the people. the honorable gentleman acknowledges that the sovereignty vests there; if so, it may exercise its will in any case not inconsistent with a previous contract. the same gentleman asks if we are to give the power to the people in detached bodies to contravene the government while it exists. certainly not; nor does the proposed proposition extend to that point; it is only intended to open for them a convenient mode in which they may convey their sense to their agents. the gentleman therefore takes for granted what is inadmissible, that congress will always be doing illegal things, and make it necessary for the sovereign to declare its pleasure. he says the people have a right to alter the constitution, but they have no right to oppose the government. if, while the government exists, they have no right to control it, it appears they have divested themselves of the sovereignty over the constitution. therefore, our language, with our principles, must change, and we ought to say that the sovereignty existed in the people previous to the establishment of this government. this will be ground for alarm indeed, if it is true; but i trust, sir, too much to the good sense of my fellow-citizens ever to believe that the doctrine will generally obtain in this country of freedom. mr. vining.--if, mr. chairman, there appears on one side too great an urgency to despatch this business, there appears on the other an unnecessary delay and procrastination equally improper and unpardonable. i think this business has been already well considered by the house, and every gentleman in it; however, i am not for an unseemly expedition. mr. livermore was not very anxious whether the words were inserted or not, but he had a great deal of doubt on the meaning of this whole amendment; it provides that the people may meet and consult for the common good. does this mean a part of the people in a township or district, or does it mean the representatives in the state legislatures? if it means the latter, there is no occasion for a provision that the legislature may instruct the members of this body. in some states the representatives are chosen by districts. in such case, perhaps, the instructions may be considered as coming from the district; but in other states, each representative is chosen by the whole people. in new hampshire it is the case; the instructions of any particular place would have but little weight, but a legislative instruction would have considerable influence upon each representative. if, therefore, the words mean that the legislature may instruct, he presumed it would have considerable effect, though he did not believe it binding. indeed, he was inclined to pay a deference to any information he might receive from any number of gentlemen, even by a private letter; but as for full binding force, no instructions contained that quality. they could not, nor ought they to have it, because different parties pursue different measures; and it might be expedient, nay, absolutely necessary, to sacrifice them in mutual concessions. the doctrine of instructions would hold better in england than here, because the boroughs and corporations might have an interest to pursue totally immaterial to the rest of the kingdom; in that case, it would be prudent to instruct their members in parliament. mr. gerry wished the constitution amended without his having any hand in it; but if he must interfere, he would do his duty. the honorable gentleman from delaware had given him an example of moderation and laconic and consistent debate that he meant to follow; and would just observe to the worthy gentleman last up, that several states had proposed the amendment, and among the rest, new hampshire. there was one remark which escaped him, when he was up before. the gentleman from maryland (mr. stone) had said that the amendment would change the nature of the government, and make it a democracy. now he had always heard that it was a democracy; but perhaps he was misled, and the honorable gentleman was right in distinguishing it by some other appellation; perhaps an aristocracy was a term better adapted to it. mr. sedgwick opposed the idea of the gentleman from new hampshire, that the state legislature had the power of instructing the members of this house; he looked upon it as a subornation of the rights of the people to admit such an authority. we stand not here, said he, the representatives of the state legislatures, as under the former congress, but as the representatives of the great body of the people. the sovereignty, the independence, and the rights of the states are intended to be guarded by the senate; if we are to be viewed in any other light, the greatest security the people have for their rights and privileges is destroyed. but with respect to instructions, it is well worthy of consideration how they are to be procured. it is not the opinion of an individual that is to control my conduct: i consider myself as the representative of the whole union. an individual may give me information, but his sentiments may he in opposition to the sense of the majority of the people. if instructions are to be of any efficacy, they must speak the sense of the majority of the people, at least of a state. in a state so large as massachusetts it will behoove gentlemen to consider how the sense of the majority of the freemen is to be obtained and communicated. let us take care to avoid the insertion of crude and indigested propositions, more likely to produce acrimony than that spirit of harmony which we ought to cultivate. mr. livermore said that he did not understand the honorable gentleman, or was not understood by him; he did not presume peremptorily to say what degree of influence the legislative instructions would have on a representative. he knew it was not the thing in contemplation here; and what he had said respected only the influence it would have on his private judgment. mr. ames said there would be a very great inconvenience attending the establishment of the doctrine contended for by his colleague. those states which had selected their members by districts would have no right to give them instructions, consequently the members ought to withdraw; in which case the house might be reduced below a majority, and not be able, according to the constitution, to do any business at all. according to the doctrine of the gentleman from new hampshire, one part of the government would be annihilated; for of what avail is it that the people have the appointment of a representative, if he is to pay obedience to the dictates of another body? several members now rose, and called for the question. mr. page was sorry to see gentlemen so impatient; the more so, as he saw there was very little attention paid to any thing that was said; but he would express his sentiments if he was only heard by the chair. he discovered clearly, notwithstanding what had been observed by the most ingenious supporters of the opposition, that there was an absolute necessity for adopting the amendment. it was strictly compatible with the spirit and the nature of the government; all power vests in the people of the united states; it is therefore a government of the people, a democracy. if it were consistent with the peace and tranquillity of the inhabitants, every freeman would have a right to come and give his vote upon the law; but, inasmuch as this cannot be done, by reason of the extent of territory, and some other causes, the people have agreed that their representatives shall exercise a part of their authority. to pretend to refuse them the power of instructing their agents, appears to me to deny them a right. one gentleman asks how the instructions are to be collected. many parts of this country have been in the practice of instructing their representatives; they found no difficulty in communicating their sense. another gentleman asks if they were to instruct us to make paper money, what we would do. i would tell them, said he, it was unconstitutional; alter that, and we will consider on the point. unless laws are made satisfactory to the people, they will lose their support, they will be abused or done away; this tends to destroy the efficiency of the government. it is the sense of several of the conventions that this amendment should take place; i think it my duty to support it, and fear it will spread an alarm among our constituents if we decline to do it. mr. wadsworth.--instructions have frequently been given to the representatives of the united states; but the people did not claim as a right that they should have any obligation upon the representatives; it is not right that they should. in troublous times, designing men have drawn the people to instruct the representatives to their harm; the representatives have, on such occasions, refused to comply with their instructions. i have known, myself, that they have been disobeyed, and yet the representative was not brought to account for it; on the contrary he was caressed and re-elected, while those who have obeyed them, contrary to their private sentiments, have ever after been despised for it. now, if people considered it an inherent right in them to instruct their representatives, they would have undoubtedly punished the violation of them. i have no idea of instructions, unless they are obeyed; a discretional power is incompatible with them. mr. burke.--i am not positive with respect to the particular expression in the declaration of rights of the people of maryland, but the constitutions of massachusetts, pennsylvania, and north carolina, all of them recognize, in express terms, the right of the people to give instruction to their representatives. i do not mean to insist particularly upon this amendment; but i am very well satisfied that those that are reported and likely to be adopted by this house are very far from giving satisfaction to our constituents; they are not those solid and substantial amendments which the people expect; they are little better than whip-syllabub, frothy and full of wind, formed only to please the palate; or they are like a tub thrown out to a whale, to secure the freight of the ship and its peaceable voyage. in my judgment, the people will not be gratified by the mode we have pursued in bringing them forward. there was a committee of eleven appointed; and out of the number i think there were five who were members of the convention that formed the constitution. such gentlemen, having already given their opinion with respect to the perfection of the work, may be thought improper agents to bring forward amendments. upon the whole, i think it will be found that we have done nothing but lose our time, and that it will be better to drop the subject now, and proceed to the organization of the government. the question was now called for from several parts of the house; but a desultory conversation took place before the question was put. at length the call becoming general, it was stated from the chair, and determined in the negative, rising in favor of it, and against it. tuesday, august . _amendments to the constitution._ mr. gerry moved, "that such of the amendments to the constitution proposed by the several states, as are not in substance comprised in the report of the select committee appointed to consider amendments, be referred to a committee of the whole house; and that all amendments which shall be agreed to by the committee last mentioned be included in one report." mr. tucker remarked, that many citizens expected that the amendments proposed by the conventions would be attended to by the house, and that several members conceived it to be their duty to bring them forward. if the house should decline taking them into consideration, it might tend to destroy that harmony which had hitherto existed, and which did great honor to their proceedings; it might affect all their future measures, and promote such feuds as might embarrass the government exceedingly. the states who had proposed these amendments would feel some degree of chagrin at having misplaced their confidence in the general government. five important states have pretty plainly expressed their apprehensions of the danger to which the rights of their citizens are exposed. finding these cannot be secured in the mode they had wished, they will naturally recur to the alternative, and endeavor to obtain a federal convention; the consequence of this may be disagreeable to the union; party spirit may be revived, and animosities rekindled destructive of tranquillity. states that exert themselves to obtain a federal convention, and those that oppose the measure, may feel so strongly the spirit of discord, as to sever the union asunder. if in this conflict the advocates for a federal convention should prove successful, the consequences may be alarming; we may lose many of the valuable principles now established in the present constitution. if, on the other hand, a convention should not be obtained, the consequences resulting are equally to be dreaded; it would render the administration of this system of government weak, if not impracticable; for no government can be administered with energy, however energetic its system, unless it obtains the confidence and support of the people. which of the two evils is the greatest would be difficult to ascertain. it is essential to our deliberations that the harmony of the house be preserved; by it alone we shall be enabled to perfect the organization of the government--a government but in embryo, or at best but in its infancy. my idea relative to this constitution, whilst it was dependent upon the assent of the several states, was, that it required amendment, and that the proper time for amendment was previous to the ratification. my reasons were, that i conceived it difficult, if not impossible, to obtain essential amendments by the way pointed out in the constitution; nor have i been mistaken in this suspicion. it will be found, i fear, still more difficult than i apprehended; for perhaps these amendments, should they be agreed to by two-thirds of both houses of congress, will be submitted for ratification to the legislatures of the several states, instead of state conventions, in which case the chance is still worse. the legislatures of almost all the states consist of two independent, distinct bodies; the amendments must be adopted by three-fourths of such legislatures; that is to say, they must meet the approbation of the majority of each of eighteen deliberative assemblies. but, notwithstanding all these objections to obtaining amendments after the ratification of the constitution, it will tend to give a great degree of satisfaction to those who are desirous of them, if this house shall take them up, and consider them with that degree of candor and attention they have hitherto displayed on the subjects that have come before them; consider the amendments separately, and, after fair deliberation, either approve or disapprove of them. by such conduct, we answer in some degree the expectations of those citizens in the several states who have shown so great a tenacity to the preservation of those rights and liberties they secured to themselves by an arduous, persevering, and successful conflict. i have hopes that the states will be reconciled to this disappointment, in consequence of such procedure. a great variety of arguments might be urged in favor of the motion; but i shall rest it here, and not trespass any further upon the patience of the house. mr. _madison_ was just going to move to refer these amendments, in order that they might be considered in the fullest manner; but it would be very inconvenient to have them made up into one report, or all of them discussed at the present time. mr. _vining_ had no objection to the bringing them forward in the fullest point of view; but his objection arose from the informality attending the introduction of the business. the order of the house was to refer the report of the committee of eleven to a committee of the whole, and therefore it was improper to propose any thing additional. a desultory conversation arose on this motion, when mr. _vining_ moved the previous question, in which, being supported by five members, it was put, and the question was,--shall the main question, to agree to the motion, be now put? the yeas and nays being demanded by one-fifth of the members present, on this last motion, they were taken as follows: yeas.--messrs. burke, coles, floyd, gerry, griffin, grout, hathorn, livermore, page, parker, van renssellaer, sherman, stone, sturgis, sumter, and tucker.-- . nays.--messrs. ames, baldwin, benson, boudinot, brown, cadwalader, carroll, clymer, fitzsimons, foster, gilman, goodhue, hartley, heister, huntington, lawrence, lee, madison, moore, muhlenberg, partridge, schureman, scott, sedgwick, seney, sylvester, sinnickson, smith, (of maryland,) smith, (of south carolina,) thatcher, trumbull, vining, wadsworth, and wynkoop.-- . so the motion was lost. a message from the senate informed the house that the senate had passed the bill providing for expenses which may attend negotiations or treaties with the indian tribes, and the appointment of commissioners for managing the same, with an amendment, to which they desire the concurrence of the house. thursday, september . _permanent seat of government._ mr. _scott_, agreeably to notice given, moved the following: "that a permanent residence ought to be fixed for the general government of the united states at some convenient place, as near the centre of wealth, population, and extent of territory, as may be consistent with convenience to the navigation of the atlantic ocean, and having due regard to the particular situation of the western country." the house resolved itself into a committee of the whole, to take into consideration the motion presented by mr. _scott_, on thursday last, for establishing the permanent residence of congress, mr. boudinot in the chair. mr. _goodhue_.--the motion before the committee i consider too indefinite for the house to decide upon satisfactorily; i wish, therefore, to add something which may bring the question to a point. it is well known that the gentlemen from the eastward are averse to taking up this business at this time. not that the subject was improper for our discussion, but that the present session is drawing to a period, and there remains yet much important business to be transacted before the adjournment; but their opinion being overruled by a late vote of the house, they have since taken it into consideration, and are now ready and willing to come to a decision. the eastern members, with the members from new york, have agreed to fix a place upon national principles, without a regard to their own convenience, and have turned their minds to the banks of the susquehanna. this is a situation as nearly central as could be devised, upon some of the principles contained in the resolution. it is, however, supposed to be considerably to the southward of the centre of the population. motives of convenience would have led us to fix upon the banks of the delaware, but it was supposed it would give more lasting content to go further south. they were, therefore, unitedly of opinion, that the banks of the river susquehanna should be the place of the permanent residence of the general government; and that until suitable buildings could be there erected for accommodation, they should remain in the city of new york. agreeably to these ideas, i move the following resolution: _resolved_, that the permanent seat of the general government ought to be in some convenient place on the east bank of the river susquehanna, in the state of pennsylvania; and that until the necessary buildings be erected for the purpose, the seat of government ought to continue at the city of new york. mr. stone said, it ought to be "government of the united states," instead of general government. mr. lee.--the house are now called upon to deliberate on a great national question; and i hope they will discuss and decide it with that dispassionate deliberation which the magnitude of the subject requires. i hope they will be guided in this discussion and decision, by the great principles on which the government is founded. i have, with a view, therefore, of bringing them before a committee, drawn up a preamble, which recognizes them, in the words following: whereas the people of the united states have assented to and ratified a constitution for their government, to provide for their defence against foreign danger, to secure their perpetual union and domestic tranquillity, and to promote their common interests; and all these great objects will be the best effected by establishing the seat of government in a station as nearly central as a convenient water communication with the atlantic ocean, and an easy access to the western territory will permit; and as it will be satisfactory to the people of the united states, and give them a firm confidence in the justice and wisdom of their government, to be assured that such a station is already in the contemplation of congress; and that proper measures will be taken to ascertain it, and to provide the necessary accommodations, as soon as the indispensable arrangements for carrying into effect the constitution can be made, and the circumstances of the united states will permit; _resolved_, that a place, as nearly central as a convenient communication with the atlantic ocean, and an easy access to the western territory, will permit, ought to be selected and established as the permanent seat of the government of the united states. i wish the principles to be recognized, that the people of the united states may be able to judge whether, in the measures about to be adopted, they are carried into execution by this house. if these great principles are not observed, it will be an unhappy fulfilment of those predictions which have been made by the opponents of the constitution; that the general interest of america would not be consulted; that partial measures would be pursued; and that, instead of being influenced by a general policy, directed to the good of the whole, one part of the union would be depressed and trampled on, to benefit and exalt the other. instead of accomplishing and realizing those bright prospects which shone upon us in the dawn of our government, and for which our patriots fought and bled, we shall find the whole to be a visionary fancy. i flatter myself, that before the house decides on the question before them, those principles will be recognized, if it is meant they shall be regarded. mr. carrol seconded mr. lee's motion. mr. sherman said, if they were both adopted, or blended together, they would only amount to a preamble, and determine nothing. he thought the first preamble the best, inasmuch as it stated the principles simply and concisely. mr. hartley.--several places have been mentioned, and some have been offered to congress as proper situations for the federal government. many persons wish it seated on the banks of the delaware, many on the banks of the potomac. i consider this as the middle ground between the two extremes. it will suit the inhabitants to the north better than the potomac could, and the inhabitants to the south better than the delaware would. from this consideration, i am induced to believe, it will be a situation more accommodating and agreeable than any other. respecting its communication with the western territory, no doubt but the susquehanna will facilitate that object with considerable ease and great advantage; and as to its convenience to the navigation of the atlantic ocean, the distance is nothing more than to afford safety from any hostile attempt, while it affords a short and easy communication with navigable rivers and large commercial towns. nay, its intercourse may be without land carriage, if proper measures are pursued to open the navigation to the delaware and chesapeake. perhaps, as the present question is only intended to be on general principles, it may be improper to be more minute than the honorable mover has been; but i think it would be better to come to the point at once, and fix the precise spot, if we could. with this view, i mention wright's ferry, on the susquehanna. not, however, that the house should decide upon it, until they have ascertained its advantages, which will, perhaps, come more properly forward when the question on the preamble is determined. mr. thatcher was against a preamble being prefixed to the resolution of the committee, because the house had, on every occasion when preambles were brought forward, rejected them. he thought this a prudent conduct, because it avoided embarrassments. he observed, that it was not unfrequently the case that the preambles occasioned more difficulty in understanding the laws than the most intricate part of the laws themselves; and, therefore, the committee would act wisely to reject such trammels. he conceived, moreover, that the motion was out of order, as it was a substitute for one before the committee. mr. smith (of south carolina) looked upon the motion as a preamble to a preamble, both of which he conceived unnecessary; nay, he doubted the truth of some of the assertions. so far from cementing the union, by a measure of the kind in contemplation, he rather feared it would have a tendency to rend the union in two; for which reason he was against adopting it. mr. tucker wished the proposition might lie on the table, to give gentlemen time to consider it. mr. lee conceived it proper to adopt the preamble as a guide to their decision. no gentlemen pretended to say it contained improper principles. as to the whole being a preamble to a preamble, he did not conceive that to be the case, because the resolution, subsequent to the preamble, decided, that congress should select a place for their permanent residence. he did not conceive how gentlemen could refuse their assent to a self-evident proposition. he thought such conduct would give an alarm to the inhabitants of the united states; it amounted to a declaration, that, on this important question, they would not be governed by principles founded on rectitude and good policy. mr. madison.--i cannot, mr. chairman, discover why the opposition to my colleague's preamble is so strenuous. is it contended to be out of order? i submit that to the decision of the chair. does it contain any thing which is not true? i appeal, on that point, to the candid judgment of the committee. are the truths in it applicable to the great object we are about to decide? i appeal to the justice and policy of the people of the united states. i flatter myself the chair will decide with me, that the proposition is strictly in order; that the committee will agree, that its contents are substantial truths; and the whole world, that they are applicable to the important point now under consideration. it declares the principles which ought to govern our decision on this question, and will, therefore, stand properly prefixed to the motion offered by the gentleman from massachusetts (mr. goodhue.) by it we declare our sentiments, and engage to conform to them, in fixing upon a seat for the residence of congress. is there any thing improper or unwise in this determination? an honorable gentleman near me (mr. tucker) says, that he feels himself embarrassed on this occasion; that the propositions are a bandage over his eyes, to lead him blindfolded to an object he cannot tell what. i must beg leave to differ from him. they appear to me to contain those luminous truths which ought to guide him through his embarrassment to the object which i am sure his justice and patriotism are in pursuit of. i hope, therefore, he will agree with us in adopting the motion, unless something more essential is offered against it. mr. sherman.--the resolution connected with the preamble contains a proposition which, i think, ought not to be adopted. it selects a place, having a convenient water-communication with the atlantic. now, it may be just and expedient to fix upon a place at some distance from a navigable river, therefore it may not agree with the intention of the committee. as to the principles which are to guide our decisions, they are as well expressed in the propositions of the gentleman from pennsylvania as in the substitute, and as free from ambiguity. the question on mr. lee's motion was taken, and determined in the negative; yeas , nays . mr. tucker declared, that the majority for fixing upon any set of principles whatever, could not govern his mind with regard to the fact. if, on the whole, he did not think that place best, which the principles adopted seemed to lead to, he certainly could not vote for it. of what use, then, was it to establish principles which could not govern the conduct of the house? but the principles offered are vague, and lead to no certain conclusion. what is the centre of wealth, population, and territory? is there a common centre? territory has one centre, population another, and wealth a third. now, is it intended to determine a centre from these three centres? this was not a practicable mode of settling the place; and it was to be doubted whether the centre of wealth ought at all to be considered. the centre of population is variable, and a decision on that principle now, might establish the seat of government at a very inconvenient place to the next generation. the centre of territory may be ascertained, but that will lead to a situation entirely ineligible; consequently, whether these centres were considered separately or together, they furnish no satisfactory direction, no possible guide to the committee. the only way, then, to come at a result yielding satisfaction, would be to consider the several places to be proposed, according to their merits; and this would be done by gentlemen in the course of the business. he was, therefore, against settling any principles by vote. mr. madison.--i move to strike out the word wealth, because i do not conceive this to be a consideration that ought to have much weight in determining the place where the seat of government ought to be. the two other principles, i admit, are such as ought to have their influence; but why wealth should is not so clear. government is intended for the accommodation of the citizens at large; an equal facility to communicate with government is due to all ranks; whether to transmit their grievances or requests, or to receive those blessings which the government is intended to dispense. the rich are certainly not less able than those who are indigent to resort to the seat of government, or to establish the means necessary for receiving those advantages to which, as citizens, they are entitled. i should rather suppose, if any distinctions are to be made, or superior advantages to be enjoyed from the presence of the government, that the government ought rather to move toward those who are the least able to move toward it, and who stand most in need of its protection. the question on this motion was taken, and passed in the negative; yeas , nays . the question on mr. scott's motion was then taken, and adopted; yeas , nays . mr. goodhue's motion was now taken into consideration. mr. lee hoped that gentlemen would show how the banks of the susquehanna conformed with the principles laid down in the resolution adopted by the house; how it communicated with the navigation of the atlantic, and how it was connected with the western territory. he hoped they would also point out its other advantages, respecting salubrity of air and fertility of soil. he expected all these advantages ought to be combined in the place of the residence of the federal government, and every other requisite to cement the common interest of america. mr. hartley wished some gentleman had risen to satisfy the inquiries of the honorable member, who could have given a description of the advantages of that situation in better language than himself. but as no gentleman had offered to undertake the subject, he thought himself bound to make him an answer; and he trusted, in doing this, he should clearly show that all the advantages contemplated would result from adopting the motion. but he wished it had extended further, and selected the place most convenient on the banks of the susquehanna, as then the answer would be more pointed and decisive. he had already mentioned wright's ferry, and would consider that as the proper spot. now, wright's ferry lies on the east bank of the susquehanna, about thirty-five miles from navigable water; and, from a few miles above, is navigable to the source of the river, at lake otsego, in the upper part of the state of new york. the tioga branch is navigable a very considerable distance up, and is but a few miles from the genesee, which empties into lake ontario. the juniata is navigable, and nearly connects with the kisskemanetas, and that with the ohio; besides the west branch connects with the alleghany river; forming a communication with the distant parts even of kentucky, with very little land carriage. the great body of water in that river renders it navigable at all seasons of the year. with respect to the settlements in the neighborhood of wright's ferry, he would venture to assert it was as thickly inhabited as any part of the country in north america. as to the quality of the soil, it was inferior to none in the world, and though that was saying a good deal, it was not more than he believed a fact. in short, from all the information he had acquired, and that was not inconsiderable, he ventured to pronounce, that in point of soil, water, and the advantages of nature, there was no part of the country superior. and if honorable gentlemen were disposed to pay much attention to a dish of fish, he could assure them their table might be furnished with fine and good from the waters of the susquehanna; perhaps not in such variety as in this city, but the deficiency was well made up in the abundance which liberal nature presented them of her various products. it was in the neighborhood of two large and populous towns, one of them the largest inland town in america. added to all these advantages, it possessed that of centrality, perhaps, in a superior degree to any which could be proposed. mr. lee asked the gentleman what was the distance of wright's ferry from yorktown, and whether that town, as it had once accommodated congress, could do it again? if a permanent seat is established, why not go to it immediately? and why, let me ask, shall we go and fix upon the banks of a rapid river, when we can have a more healthful situation? and here he would inquire if the codorus creek, which runs through yorktown into the susquehanna, was, or could be made navigable? mr. hartley answered, that yorktown was ten miles from the ferry, that it contained about five hundred houses, besides a number of large and ornamental public buildings; that there was no doubt, but if congress deemed it expedient to remove immediately there, they could be conveniently accommodated; but as gentlemen appeared to be inclined to fix the permanent residence on the east banks of the susquehanna, he was very well satisfied it should be there. mr. madison.--the gentleman who brought forward this motion was candid enough to tell us, that measures have been preconcerted out of doors, and that the point was determined; that more than half the territory of the united states, and nearly half its inhabitants have been disposed of, not only without their consent, but without their knowledge. after this, i hope the gentleman will extend his candor so much further, as to show that the general principles now to be established are applicable to their determination, in order that we may reconcile this fate to our own minds, and submit to it with some degree of complacency. i hope, if the seat of government is to be at or near the centre of wealth, population, and extent of territory, that gentlemen will show that the permanent seat there proposed is near the permanent centre of wealth, population and extent of territory, and the temporary seat, near the temporary centre. i think we may, with good reason, call upon gentlemen for an explanation on these points, in order that we may know the ground on which the great question is decided, and be able to assign to our constituents satisfactory reasons for what some of them may consider a sacrifice of their interest, and be instrumental in reconciling them, as far as possible, to their destiny. mr. goodhue thought the question, stated by the gentleman from virginia, was proper to be asked, and proper to be answered. the gentlemen from the eastward, as he said before, were in favor of the susquehanna; that in contemplating the geographical centre of territory, they found the banks of that river to be near the place. in point of population, they considered the susquehanna was south of that centre; but, from a spirit of conciliation, they were inclined to go there, although the principle and their own convenience would not lead them beyond the banks of the delaware. he believed the centre of population would not vary considerably for ages yet to come, because he supposed it would constantly incline more toward the eastern, and manufacturing states, than toward the southern, and agricultural ones. mr. jackson.--i was originally opposed to the question coming forward, and am so still. i thought the subject ought not to be touched till the states, who have not yet acceded to the union, might have an opportunity of giving their voice. i agree with the gentleman from virginia. i am sorry that the people should learn that this matter has been precipitated; that they should learn, that the members from new england and new york had fixed on a seat of government for the united states. this is not proper language to go out to freemen. jealousies have already gone abroad. this language will blow the coals of sedition, and endanger the union. i would ask, if the other members of the union are not also to be consulted? are the eastern members to dictate in this business, and fix the seat of government of the united states? why not also fix the principles of government? why not come forward, and demand of us the power of legislation, and say, give us up your privileges, and we will govern you? if one part has the power to fix the seat of government, they may as well take the government from the other. this looks like aristocracy: not the united, but the partial voice of america is to decide. how can gentlemen answer for this, who call themselves representatives, on the broad basis of national interest? i deny the fact of the territorial centrality of the place proposed. from new york, to the nearest part of the province of maine, it is two hundred and fifty miles; and from new york, to the nearest part of the upper district of georgia, from which my colleague, general matthews, comes, is eleven hundred miles; and from the proposed place on the susquehanna, it is four hundred miles to the nearest part of maine, and nine hundred to the nearest part of that district; the proportion is more than two to one. but the gentlemen should have an eye to the population of georgia; one of the finest countries in the world cannot but rapidly extend her population; nothing but her being harassed by the inroads of savages has checked her amazing increase, which must, under the auspices of peace and safety, people her western regions. georgia will soon be as populous as any state in the union. calculations ought not to be made on its present situation. north carolina is not yet in the union, and perhaps the place may give umbrage to her, which ought, at this moment, to be cautiously avoided. i should, therefore, think it most advisable to postpone the decision for this session at least. but, if we are to decide, i own, i think the potomac a better situation than the susquehanna, and i hope it will be selected for that purpose. mr. goodhue.--if gentlemen examine this subject with candor, they will find that the banks of the susquehanna are as near the geographical centre as can be fixed upon. it is from the extreme of the province of maine about seven hundred and sixty miles; to savannah, in georgia, about seven hundred and sixty; and about seven hundred and thirty, or seven hundred and forty, from kentucky; so that it is rather south of the centre of territory. mr. lawrence.--when this subject was under discussion some time since, it appeared to be the wish of gentlemen from the eastward, and of the members from this state, that the question should not now be decided. they urged several reasons why it would be improper. i thought those reasons weighty, and was for postponing the consideration till our next meeting. but it was answered, that the business was important; that the citizens of the united states were uneasy and anxious; that as factions did not now exist, it was the proper time to decide the question. what was the representation to do? was it not necessary for them to consult, and fix upon a proper place? they are, in a degree, disinterested, because they have no expectation that the seat of government will be fixed in any of the eastern states. on the other hand, there is a well-grounded expectation, that it will be fixed either in virginia, maryland, pennsylvania, or jersey. we are called on to determine a question in which we conceive ourselves unbiased, and shall decide it on those principles that will reflect honor on the house. i trust it will be found that we have fixed on those principles, and that this resolution will be confirmed by congress. we do not decide for the union, nor for the southern states, we decide for ourselves; and if our reasons are substantial, i trust that gentlemen will meet us in the determination. there are several principles which have been agreed to in the general resolution; and i believe it will be shown, with exactness, that the place proposed will come within these principles. the first respects population. is the house to consider the present, or the expected population? the resolution has a determinate meaning; it speaks of the population at the present period; and to calculate on this principle no gentleman can say is unjust. the representation in this house is itself a demonstration of it. the population of this country may be pretty safely determined by the proportion of representatives in this house; for it is established on this ground. i therefore believe, that the principle of population inclines to this place, in preference to a more southern situation. but, in taking the principle of territory, are the house to calculate on the uninhabited wilderness? shall they take the lake of the woods on one side, and the missouri on the other, and find a geographical centre? if so, to what an extent must they go? the inhabited and populated part of the country ought chiefly to be considered. if st. croix is taken as the eastern limit, and st. mary as the southern, the centre of the line will be found to fall pretty near the susquehanna. mr. sedgwick.--i beg leave to ask, if there really is any impropriety in gentlemen's consulting together, who have a uniformity of interest, upon a question which has been said to be of such infinite importance? my colleague has barely stated that such a consultation has taken place, and that, in consequence of it, men's minds have been induced to run in a current. is there any thing wrong in this? let those, then, who are determined not to consult, nor have any communication on such a subject, decide for themselves. i should think myself lost to that regard i owe to my country, and to my immediate constituents in particular, should i abstract myself from the contemplation of the benefits that would flow from knowing the feelings and sentiments of those with whom i am to act. instead of being an evidence to that aristocratic spirit which has been mentioned, it is only a proof that men, attentive to their business, had preferred that way, which every honest man had in view. i have contemplated the subject with great anxiety, and though i cannot declare that my local situation has had no influence on my mind, yet i will say i endeavored to prevent its having any. i believe that the true interests of the country will be best answered by taking a position eastward and northward of the susquehanna. the delaware is one extreme, the potomac another; but when i reflect how anxious some gentlemen are for the one, and some for the other, i am willing to accommodate both parties, by advancing to a middle ground, to which i hope the public mind will be reconciled. i was also influenced in fixing this opinion, by the sentiment of the celebrated montesquieu. he had laid it down, that in a country partaking of northern and southern interests, of a poor and productive soil, the centre and the influence of government ought to incline to that part where the former circumstances prevailed; because necessity stimulates to industry, produces good habits and a surplus of labor; because such parts are the nurseries of soldiers and sailors, and the sources of that energy which is the best security of the government. the susquehanna is, in my opinion, south-west of the centre of wealth, population, and resources of every kind. i would beg leave, gentlemen, to suggest another idea. in my view, on the principles of population, the susquehanna is far beyond the centre; for i do not think it just, on this subject, to take the constitutional computation. will any gentlemen pretend, that men, who are merely the subject of property or wealth, should be taken into the estimate; that the slaves of the country, men who have no rights to protect, (being deprived of them all,) should be taken into view, in determining the centre of government? if they were considered, gentlemen might as well estimate the black cattle of new england. i would ask, if it is of no importance to take a position in which the credit of the government may procure those supplies that its necessities might require? will the strength and riches of the country be to the north or to the south of the susquehanna? certainly to the north. it is the opinion of all the eastern states, that the climate of the potomac is not only unhealthy, but destructive to northern constitutions. it is of importance to attend to this, for whether it be true or false, such are the public prepossessions. vast numbers of eastern adventures have gone to the southern states, and all have found their graves there; they have met destruction as soon as they arrived. these accounts have been spread, and filled the northern people with apprehension. mr. vining.--although i must acknowledge myself a party to the bargain, yet i had no share in making it. it is to me an unexpected bargain. though the interest of the state which i have the honor to represent is involved in it, i am yet to learn of the committee, whether congress are to tickle the trout on the stream of the codorus, to build their sumptuous palaces on the banks of the potomac, or to admire commerce with her expanded wings, on the waters of the delaware. i have, on this occasion, educated my mind to impartiality, and have endeavored to chastise its prejudices. i confess to the house, and to the world, that, viewing this subject, with all its circumstances, i am in favor of the potomac. i wish the seat of government to be fixed there; because i think the interest, the honor, and the greatness of this country require it. i look on it as the centre from which those streams are to flow that are to animate and invigorate the body politic. from thence, it appears to me, the rays of government will most naturally diverge to the extremities of the union. i declare, that i look on the western territory in an awful and striking point of view. to that region the unpolished sons of earth are flowing from all quarters; men, to whom the protection of the laws, and the controlling force of the government, are equally necessary. from this great consideration, i conclude that the banks of the potomac are the proper station. mr. seney mentioned peach bottom, on the susquehanna, about fifteen miles above tide-water, as the proper place. mr. goodhue did not wish the particular spot pointed out, because some inconvenience would result from such a measure; however, he was free to declare, that his own idea was in favor of a situation near wright's ferry. mr. heister moved to insert harrisburg in the resolution. he conceived the spot to be more eligible than any yet mentioned; from hence there was an uninterrupted navigation to the sources of the river, and through this place runs the great western road leading to fort pitt, and the western territory. a water communication can be effected at small expense with philadelphia. the waters of the swetara, a branch of the susquehanna, about eight miles below harrisburg, run to the north-east, and are navigable fifteen miles from thence to the tulpehoken, a branch of the schuylkill; a canal may be cut across, of about a mile and a half, the ground has been actually surveyed, and found practicable; this will unite the susquehanna and delaware, and open a passage for the produce of an immense tract of country. it is but little further from philadelphia than is wright's ferry; and, on many accounts, he thought it a preferable situation for the permanent seat of government. mr. madison meant to pay due attention to every argument that could be urged on this important question. facts had been asserted, the impressions of which he wished to be erased, if they were not well founded. it has been said, that the communication with the western territory, by the susquehanna, is more convenient than by the potomac. i apprehend this is not the case; and the propriety of our decision will depend, in a great measure, on the superior advantages of one of these two streams. it is agreed, on all hands, that we ought to have some regard to the convenience of the atlantic navigation. now, to embrace this object, a position must be taken on some navigable river; to favor the communication with the western territory, its arms ought likewise to extend themselves towards that region. i did not suppose it would have been necessary to bring forward charts and maps, as has been done by others, to show the committee the comparative situation of those rivers. i flattered myself it was sufficiently understood, to enable us to decide the question of superiority; but i am now inclined to believe, that gentlemen have embraced an error, and i hope they are not determined to vote under improper impressions. i venture to pledge myself for the demonstration, that the communication with the western territory, by the potomac, is more certain and convenient than the other. and if the question is as important as it is admitted to be, gentlemen will not shut their ears to information; they will not precipitate the decision; or if they regard the satisfaction of our constituents, they will allow them to be informed of all the facts and arguments that lead to the decision of a question in which the general and particular interests of all parts of the union are involved. mr. stone found gentlemen had determined on a step that was not generally liked; he wished, therefore, the committee to rise, and give all of them an opportunity of trying to mend the bargain that had been made; perhaps they might find, upon reflection, that they ought to decide the question on more national principles than they seemed yet to be governed by. mr. seney could not say how far the motion was agreeable to every part of america; but he believed it would be acceptable to a very considerable part of the state he had the honor to represent. mr. sumter was in favor of the committee's rising, in order to give gentlemen time to ascertain the facts necessary to guide them to a decision. there was one impropriety which struck him forcibly; the resolution adopted as a principle that the seat of government ought to be in a convenient place for the navigation of the atlantic ocean. but the situation mentioned in the resolution under consideration had no communication whatever with the atlantic navigation. it had been said, that the susquehanna afforded the most convenient communication with the western territory. he believed the hudson possessed superior advantages; it connected with the country about the lakes and the ohio. from new york to albany was navigable; from thence to schenectady, there was a short portage; after ascending schenectady, there was a short portage of half a mile to the mohawk; from thence, another short portage to wood creek, and thence into lake ontario, which connects with lake erie; and from thence are portages to the wabash, miami, muskingum or alleghany, all falling into the ohio. but the potomac possessed advantages superior to these; and was, both on account of communicating with the atlantic and western territory, much to be preferred to the susquehanna. he assured gentlemen that he was unbiased in giving a preference to the potomac; because, if he studied his own convenience, he should consider new york as more eligible than either. it accommodated the atlantic navigation in a superior manner, and had its pretensions to a connection with the western waters, as he had already shown. he hoped, however, that the subject would be debated with candor and good temper, and decided in the way most likely to promote the general interests and harmony of the union. mr. sherman was against taking up the subject so soon; but since it had been determined against him,--gentlemen, he presumed, had endeavored to make up their minds,--he had turned his attention to it, and was now prepared to decide. mr. clymer knew the advantages possessed by the susquehanna in communicating with the western country; they were mentioned by his colleague; but, with the additional circumstance that the juniata branch afforded a convenient navigation to a road lately laid out by the state of pennsylvania, which connected with the kisskaminetas, from whence was a short voyage down the alleghany, and shorter still down that to the ohio, at pittsburg. he questioned much if the navigation by the potomac was so convenient. mr. stone did not mean to govern his vote on this occasion by what was said to be the sense of the citizens of maryland; because they were, he apprehended, divided in opinion. one part or the other would be particularly benefited, as the seat of government should be fixed either on the susquehanna or potomac, because those rivers watered its territory. perhaps the majority of the present inhabitants would prefer the susquehanna; but as their settlements extended westward, and the population increased, the majority would be favored by the potomac. mr. seney did not mean to determine this question on the principle of benefiting, exclusively, the citizens of maryland; he considered himself as a representative of the union, and should decide on the principle of general convenience. mr. tucker hoped the committee would rise, in order to give gentlemen time to consider the subject maturely, and to prepare themselves to come forward and discuss, fairly and fully, the advantages and disadvantages of the rival places. he could not believe they meant to decide a question of this importance on the superficial discussion which had taken place. the question, on the committee's rising, was now put, and it passed in the negative; for it , against it . mr. stone.--we are called upon, sir, to determine a question that has not been introduced to our notice more than two hours and a half; a question too, as admitted on both sides, of the highest importance to the interests and harmony of the union. i cannot help thinking it a hardship to be compelled so abruptly to a decision; but since it must be the case, i shall take the liberty of suggesting a few of my thoughts, in order to justify the vote i mean to give. there are a variety of considerations and doubts in my mind, respecting the two rivers that have been mentioned. these doubts are increased when a particular place is named upon one of them; but had gentlemen told us, that they had settled this point also, it might have precluded any sort of debate whatever; because when an agreement had taken place, not only as to the banks of the susquehanna, but as to the favored spot on those banks, we should not have entertained a single hope that we could have changed the position. but, as gentlemen differ among themselves on this point, perhaps they will permit us to participate with them in selecting the place most likely to give general satisfaction. but how can they suppose we are prepared on this head, without a general consideration of all the places which may offer themselves along the east bank of the river. i am not apprised, sir, of the extent of this continent certainly, because i never calculated it by figures, or measured it on the map; but if there is the smallest degree of accuracy in the draft that has been handed about, no man, who takes a view of it, in my opinion, will doubt a single moment, whether the susquehanna is the river, which nearly equally divides the territory of the united states, in its extent north and south, that separates, in equal parts, the country east and west. the eastern part, i take it, is little, if any thing, more than half as large as what lies west. we observe that the course of the main branch tends more toward the atlantic ocean, than it does toward the western territory; but even its western inclination goes only toward the lakes erie and ontario, through the middle of which runs the boundary line of the united states. how can this, then, be supposed a direct or convenient communication with that part of the country which is usually termed, and is in fact, the western territory? in fixing the permanent residence, we ought not only to have in view the immediate importance of the states, but also what is likely to be their weight at a future day; not that we should consider a visionary importance, or chimerical expectation, but such a one as can be demonstrated with as much certainty as effects follow their causes. i apprehend the increase of population to the eastward is merely conditional; there is nothing to invite people to settle in the northern parts of this continent, in preference to the southern; even if they were settled there, every principle which encourages population would operate to induce them to emigrate to the southern and western parts. we know the northern climate is severe, the winters long, and summers short, and that the soil is less fertile. were we not assuredly acquainted that this was the case on the continent of america, we should be led to the same conclusion, by reasoning from our knowledge of the other parts of the globe. men multiply in proportion to the means of support, and this is more abundant in a mild than a severe climate. hence, i infer, that the climate, and means of subsistence, will ever operate as a stimulus to promote the population of the southern, in preference to the northern states. this doctrine is daily exemplified. if we advert to the situation of that part of the western country, called kentucky, and compare its increase of population since the war, with any part of the eastern states, we shall find men multiplied there beyond any thing known in america; and if we consider its natural advantages, we shall conclude it will be an important part of the union. the river which has been mentioned by the southern gentlemen is, as far as i am acquainted, extremely well calculated to furnish government with the key of that country; and a river, i believe, richer in its exports than any i have contemplated on the face of the earth. a call was now made to order, and mr. stone sat down. a desultory conversation took place on the point of order. it was contended, that the question was on the insertion of harrisburg, in the proposition offered by mr. goodhue; whereas mr. stone was speaking to the main question. messrs. carroll, lee and madison insisted that mr. stone was in order, inasmuch as mr. heister's motion necessarily involved the main question, and was inseparable from it. but it was decided by the chair to be out of order; whereupon the question was taken, without further debate, on inserting harrisburg, and it was determined in the negative. the main question being now before the committee, mr. stone proceeded. i feel myself unhappy to be obliged to address gentlemen, who are not disposed to attend to any thing i may say; but as gentlemen have chosen this time for discussing the subject, they will not think it improper in me to persist in detailing my ideas. when i was interrupted by the call to order, i was about to show the importance of the potomac to the united states. its waters afford a practical, safe, and short communication with the ohio and mississippi, beyond comparison preferable to the susquehanna. if it is intended that the people settled upon those great rivers should communicate with the general government, after ascending the former they must proceed a vast distance northward, up the alleghany, against a rapid stream, before they can reach the susquehanna. i am inclined to believe a land-carriage would be better than such a laborious round-about water communication. now the potomac, as i am informed, connects with the youghiogheny, a river less rapid than the alleghany, and is itself communicable with the atlantic. in this case, the potomac will be the highway for such vast quantities of wealth as to give every superiority; and, however we may determine at this day, it will not be long before the seat of government must be carried thither. the vast population that is extending itself through the western country requires that the government should take a position favorable to its convenience; because new settlements at a vast distance from the old are more exposed to temptation than others; but in the present case, it is proper for us to guard against the operation of a foreign country, which seems to be forming settlements near our frontiers to rival ours. it may be the more necessary, inasmuch as we ought to keep the boundary line distinct between the spaniards and savages, as i fear, do what we will, we run the greatest risk of entering into a quarrel with them; for, it is well known, that emigrants, in forming new settlements, are not much concerned about an ascertainment of jurisdiction; they are generally bold, enterprising spirits, who feel some aversion to strict government; it is therefore necessary that the government should approach toward them, and be placed in such situation as would give it the greatest possible influence over them. beside their contiguity to a rival nation, they are independent in their condition; they want hardly any thing this country can give; their soil is rich and fertile; their exports will furnish them with every foreign article from the southward which they can require. their interests are more strongly connected with the southern states than the southern states are with the eastern. the advantages of this government are felt, in a peculiar manner, by the mercantile and commercial states; the agricultural states have not the same strong reasons for maintaining the union. hence we may apprehend that the western country may be inclined, as it advances its importance, to drop off. the susquehanna is no bond by which to hold them; its direction is more northern than westerly. upon the whole, i am inclined to believe that it would not give general satisfaction at the present day; and the inequality would daily grow more striking, until we should be compelled to remove again to where there was a probability of finding a centre of territory as well as population. i have thrown out these ideas in a crude manner, but gentlemen have forced me to it by their urgency to take the question; i could wish to be allowed time for further discussion, and i believe it would be no ill sacrifice of a day, if we were to put off the determination till to-morrow. mr. lee observed, that since gentlemen would not admit of a moment's delay; since they seemed to declare, that they had settled the matter without giving an opportunity for full discussion; since the house were hurried to a decision on a point that involved the welfare of the community, duty to his country, duty to the better half of the territory of the united states, called on him to come forward with another proposition. he then moved to strike out the words "east bank of the susquehanna," and to insert a clause to this effect; that, whereas the banks of the potomac united all the aforesaid advantages, with fertility of soil, salubrity of climate, &c. resolved, that the permanent seat of government ought to be fixed somewhere on the banks of the said river. he flattered himself that these two rival places would be considered with an attention that would do honor to the house; that their several advantages would be fully compared, and that such a decision would result as would be for the lasting benefit of the united states. he then stated at large the comparative advantages of the potomac; its great and increasing improvements; the extent of its navigation; its direct communication with the western country, and its easy communication with the eastern and southern states. the house, he said, were now to determine whether regard was to be had to the people of the western territory, to the greater portion of the territory of the union; in point of climate, it was extremely salubrious; in fertility of soil, it was exceeded by no country on earth. thither would emigrants flock from all quarters. he asked whether this government was intended for a temporary or a lasting one? whether it was to be a fleeting vision, or to continue for ages? he hoped the result would proclaim that the government was calculated for perpetuity; and that the common interests of the country had been consulted. if that was done, the government would be removed to the potomac; if not, we should stop short of it; and what would be the consequence? he said he was averse to sound alarms, or introduce terrors into the house; but if they were well founded, he thought it his duty. it was well known with what difficulty the constitution was adopted by the state of virginia. it was then said, that there would be confederacies of the states east of pennsylvania, which would destroy the southern states; that they would unite their councils in discussing questions relative to their particular interests, and the southern states would be disregarded. to these suspicions, it was answered, no! it was contended that the magnanimous policy, arising from mutual interests and common dangers would unite all the states, and make them pursue objects of general good. but if it should be found that there were such confederacies as were predicted, that the northern states did consult their partial interests, and form combinations to support them, without regarding their southern brethren, they would be alarmed, and the faith of all south of the potomac would be shaken. it would be shown to them, that what had been predicted by the enemies to the constitution had come to pass; that the northern states had not waited till the government was organized before they sacrificed the southern people to their own interests. let the seat of government be fixed where it may, virginia had not solicited congress to place the seat of government in her state. she only contended, that the interests of the southern and western country should be consulted; and he declared that these interests would be sacrificed, if congress fixed upon any place but the potomac. the greater part of virginia was distant from that river. many parts were not nearer than new jersey. she wished not to have the seat on the potomac but for the general good; it was not for the benefit of that state, but for the benefit of the union. mr. lawrence said, it was improper and unnecessary to hold out terrors to the fancy of members. the true way to convince them, was to address their understandings. he was certain there was no dangerous confederacy which the gentleman had talked of; and believed the conduct of the northern states would bear the strictest scrutiny; that, if probed to the bottom, it would be found fair and candid. he remembered in the debate upon the tonnage bill, a gentleman from virginia observed, that could the moderate and equal policy of that day's proceedings have been foreseen in the convention of virginia, many objections that were there produced against the constitution would have been thereby obviated. he trusted, that, in conducting the business before them, gentlemen could find no cause, eventually, to entertain different sentiments from what he then delivered. mr. madison.--i acknowledge, that, on a former day, i made the observation alluded to with singular complacency. i said, i had found a moderation and liberality prevailing here, which i sincerely believed, if foreseen in the convention of virginia, would have obviated a very powerful objection to the adoption of the federal constitution. but, give me leave now to say, that if a prophet had risen in that body, and brought the declarations and proceedings of this day into view, that i as firmly believe virginia might not have been a part of the union at this moment. a motion was now made for the committee to rise, and several gentlemen said, they wished it to prevail, in order that an opportunity might be afforded for a fuller discussion. mr. sedgwick hoped the committee would not rise. will it be contended, that the majority shall not govern; and shall the minority, because they cannot carry their points, accuse the house of want of candor? are we to be told, that an important state would not have joined the union, had they known what would have been the proceedings of this house. gentlemen have brought forward this business themselves; they have precipitated the house into it. we prayed, we supplicated for time; and now gentlemen, from some causes not explained, wish to postpone the matter, in order to have time to deliberate. he believed that a deliberation of six weeks would not alter a single opinion, and therefore it was not proper to consume the public time uselessly. mr. madison.--when i alluded to the proceedings of this day, i contemplated the manner in which the business was conducted; and though i acknowledge that a majority ought to govern, yet they have no authority to deprive the minority of a constitutional right; they have no authority to debar us the right of free debate. an important and interesting question being under consideration, we ought to have time allowed for its discussion. facts have been stated on one side, and members ought to be indulged on the other with an opportunity of collecting and ascertaining other facts. we have a right to bring forward all the arguments which we think can, and ought to have an influence on the decision. it is unusual, on a partial discussion, even of questions of inferior magnitude, to decide in the course of a single day. how, then, can gentlemen reconcile their conduct of this day to the liberality they have hitherto shown? this manner of proceeding would mark a genius in this body which will contradict the expectations of its warmest friends. i hope nothing will be fixed by a hasty determination. i said before, and repeat it again, that i wish to make some observations on what has been advanced, for which at present there is not time. but, if there was, i do not wish to address a determined and silent majority. no, sir, if this be the temper of to-day, let me appeal to a more favorable temper to-morrow. if gentlemen refuse this appeal, i must submit; but i will, to the last moment, assert my right, and remonstrate against a precipitate decision. mr. burke observed, that the northern states had had a fortnight to manage this matter, and would not now allow the southern states a day. what was the conduct of gentlemen? a league has been formed between the northern states and pennsylvania. mr. fitzsimons interrupted mr. burke, and denied the assertion, as it respected pennsylvania. mr. burke then proceeded, and said that the eastern members had combined with some other states, he could not positively say which, but the first information that was furnished was given this morning, every gentleman had heard it as well as himself, but that had nothing to do with his object; he wanted time to get information; and called on gentlemen, for the honor of the house, to comply with this request. mr. wadsworth said, he rejoiced to hear the gentlemen calling for time, and crying out fair play. he remembered when he entreated the gentleman who spoke last, and others, not to precipitate themselves into this situation; his entreaties had been of no avail. knowing that the pride of a majority was one of those things to which he had to submit, he, with all the new england members, solicited for time. with respect to bargaining, he believed that it would reflect no honor on either side of the house. he said he must either give his vote now, or submit to more bargaining. he was willing that the whole business of bargaining should be exposed; he would not excuse himself; he did not dare to go to the potomac. he feared that the whole of new england would consider the union as destroyed. since the matter had been so prematurely brought on, since members had been forced, and, as it were, dragged by the throat to this business, he hoped it was now finished. the question was now put, on the rising of the committee, and carried: whereupon the committee rose and reported progress, and then the house adjourned. thursday, september . _seat of government._ the house again resolved itself into a committee of the whole, on the resolution for establishing a permanent seat of government, mr. boudinot in the chair. mr. stone wished to hear the sentiments of the gentleman who first brought forward this business: he expected to derive some advantage from that gentleman's knowledge of the country, which, he presumed, was pretty accurate, as it was derived from actual observation. after waiting some time, mr. stone repeated his request, under an apprehension that he had not the honor of being heard by the worthy gentleman. mr. goodhue rose and said, he had given his sentiments yesterday, but, if the gentleman desired it, he was ready to repeat them. mr. stone said, he addressed his request to the gentleman from pennsylvania. mr. scott.--i understood the gentleman so, and i have no objection to giving my sentiments on the occasion. the resolution i laid on the table has been honored with the vote of a majority of the committee. it contains such principles as, i believe, ought to govern in the settlement of the grand question: they have declared, that they mean to be governed by these principles, and this is a declaration to the world that their hearts are good. what may follow in consequence of that resolution, cannot impeach the motive, it can only prove, that our heads are uninformed; an error of the head is pardonable, but an error of the heart is not easily forgiven. whether the spot which has been moved is the right spot or not, seems to be the matter under inquiry. i had prepared myself with documents, which i should have produced had they been needed, to prove, that the state i have the honor to represent involves, within its limits the centre of wealth and population of the united states, taking the sea-coast for a guide; for all that has been said of the importance of the western country, has not prevailed on me to imagine, that all the vacant territory should be taken into view, the same as the settled and cultivated parts; my resolution had no other idea but that the atlantic states should consent to go as near that territory as their convenience would allow. i am convinced that going further than would suit the atlantic states would injure the western country itself. mr. madison said, if this delay should not have produced any alteration in the sentiments of the gentlemen, it will at least soften that hard decision which seems to threaten the friends of the potomac. he hoped that all would concur in the great principle on which they ought to conduct and decide this business; an equal attention to the rights of the community. no government, he said, not even the most despotic, could, beyond a certain point, violate that idea of justice and equal right which prevailed in the mind of the community. in republican governments, justice and equality form the basis of the system; and perhaps the structure can rest on no other that the wisdom of man can devise. in a federal republic, give me leave to say, it is even more necessary and proper, that a sacred regard should be paid to these considerations. for beyond the sense of the community at large, which has its full agency in such a system, no such government can act with safety. the federal ingredient involves local distinctions, which not only produce local jealousies, but give, at the same time, a greater local capacity to support, and insist upon equitable demands. in a confederacy of states, in which the people operate, in one respect as citizens, and in another as forming political communities, the local governments will ever possess a keener sense and capacity, to take advantage of those powers, on which the protection of local rights depends. if these great rights be the basis of republics, and if there be a double necessity of attending to them in a federal republic, it is further to be considered, that there is no one right, of which the people can judge with more ease and certainty, and of which they will judge with more jealousy, than of the establishment of the permanent seat of government; and i am persuaded, that however often this subject may be discussed in the representative body, or however the attention of the committee may be drawn to it, the observations i have made will be more and more verified. we see the operation of this sentiment fully exemplified in what has taken place in the several states. in every instance where the seat of government has been placed in an uncentral position, we have seen the people struggling to place it where it ought to be. in some instances they have not yet succeeded, but i believe they will succeed in all. in many they have actually gained their point. with respect, however, to the federal government, there is one consideration that shows, in a peculiar manner, the necessity and policy of paying a strict attention to this principle. one of the greatest objections which has been made by the opponents of the system, which has been allowed most weight by its friends, is the extent of the united states. it has been asserted by some, and almost feared by others, that within so great a space, no free government can exist. i hope and trust, that the opinion is erroneous; but, at the same time, i acknowledge it to have a certain degree of force, and it is incumbent on those who wish well to the union, to diminish this inconvenience as much as possible. the way to diminish it, is to place the government in that spot which will be least removed from every part of the empire. carry it to a remote position, and it will be equivalent to an extension of our limits; and if our limits are already extended so far as warrants, in any degree, the apprehension before mentioned, we ought to take care not to extend them further. the seat of government is of great importance, if you consider the diffusion of wealth that proceeds from this source. i presume that the expenditures which will take place, where the government will be established by those who are immediately concerned in its administration, and by others who may resort to it, will not be less than half a million dollars a year. it is to be regretted that those who may be most convenient to the centre should enjoy this advantage to a higher degree than others; but the inequality is an evil imposed by necessity; we diminish it as we place the source from which those emanations of wealth are to proceed as near the centre as possible. if we consider, sir, the effects of legislative power on the aggregate community, we must feel equal inducements to look for the centre, in order to find the proper seat of government. those who are most adjacent to the seat of legislation will always possess advantages over others. an earlier knowledge of the laws, a greater influence in enacting them, better opportunities for anticipating them, and a thousand other circumstances, will give a superiority to those who are thus situated. if it were possible to promulgate our laws, by some instantaneous operation, it would be of less consequence in that point of view where the government might be placed; but if, on the contrary, time is necessary for this purpose, we ought, as far as possible, to put every part of the community on a level. if we consider the influence of the government in its executive department, there is no less reason to conclude that it ought to be placed in the centre of the union. it ought to be in a situation to command information relative to every part of the union, to watch every conjuncture, to seize every circumstance that can be improved. the executive eye ought to be placed where it can best see the dangers which may threaten, and the executive arm, whence it may be extended most effectually to the protection of every part. perhaps it is peculiarly necessary, that, in looking for the position, we should keep our eye as much as possible towards our western borders; for a long time dangers will be most apt to assail that quarter of the union. he was sure, that if justice required us to take any one position in preference to another, we had every inducement, both of interest and of prudence to fix on the potomac, as most satisfactory to our western brethren. it is impossible to reflect a moment on the possible severance of that branch of the union without seeing the mischiefs which such an event must create. the area of the united states divided into two equal parts, will leave, perhaps, one half on the west side of the alleghany mountains. from the fertility of the soil, the fineness of the climate, and every thing that can favor a growing population, we may suppose the settlement will go on with every degree of rapidity which our imagination can conceive. if the calculation be just, that we double in twenty-five years, we shall speedily behold an astonishing mass of people on the western waters. whether this great mass will form a permanent part of the confederacy, or whether it will be separated into an alien, a jealous and a hostile people, may depend on the system of measures that is shortly to be taken. the difference, he observed, between considering them in the light of fellow-citizens, bound to us by a common affection, obeying common laws, pursuing a common good, and considering them in the other light, presents one of the most interesting questions that can occupy an american mind. instead of peace and friendship, we shall have rivalship and enmity; instead of being a great people, invulnerable on all sides, and without the necessity of those military establishments which other nations require, we shall be driven into the same expensive and dangerous means of defence. we shall be obliged to lay burthens on the people, to support establishments which, sooner or later, may prove fatal to their liberties. it is incumbent on us, if we wish to act the part of magnanimous legislators, or patriotic citizens, to consider well, when we are about to take a step of such vast importance, that it be directed by the views he had described; we must consider what is just, what is equal, and what is satisfactory. on a candid view of the two rivers, he flattered himself that the seat which would most correspond with the public interest would be found on the banks of the potomac. it was proper that we should have some regard to the centre of territory; if that was to have weight, he begged leave to say, that there was no comparison between the two rivers. he defied any gentleman to cast his eye in the most cursory manner over a map and say that the potomac is not much nearer this centre than any part of the susquehanna. if we measure from the banks of the potomac to the most eastern parts of the united states, it is less distant than to the most southern. if we measure this great area diagonally, the potomac will have the advantage. if you draw a line perpendicularly to the direction of the atlantic coast, we shall find that it will run more equally through the potomac than through any part of the union; or, if there be any difference between one side and the other, there will be a greater space on the south-west than on the north-east. all the maps of the united states show the truth of this. from the atlantic coast to that line which separates the british possessions from the united states, the average distance is not more than one hundred and fifty miles. if you take the average breadth of the other great division of the united states, it will be found to be six, seven, and eight hundred miles. from this view of the subject, which is not easy to describe by words, but which will strike every eye that looks on a map, i am sure that if the potomac is not the geographical centre, it is because the susquehanna is less so. mr. clymer begged to set the gentleman right; his colleague, if he understood him, had only related the communication by the north-western branches, but there was a communication by the juniata, a branch of the susquehanna, about fifteen miles above harrisburg, tending westerly, and navigable eighty miles, from whence to the connemagh was a portage, with a road actually laid out of about forty miles, hence you descend the kisskaminetas to the alleghany, and from thence to pittsburg is thirty miles. mr. scott knew this communication pretty well, but we who live in that country never take it into consideration, as the waters are too small to afford a certainty of communication, but even here the portage was greater than between the potomac and youghiogheny. mr. clymer said, with respect to the navigation of the juniata, that it was in evidence before the house of assembly of pennsylvania, when they were considering the means of uniting that navigation with the western waters, that produce to the amount of fourteen hundred bushels had been brought down it to middletown. mr. madison proceeded and said, he wished every fact to be ascertained that could throw any light upon the subject. taking the susquehanna, as it was practicable for navigation, it would be found, that through that route of communication, fort pitt would be four or five hundred miles from the proposed seat on its banks, and that the distance by land was not less than two hundred and fifty miles; whereas, through the potomac the distance from the proposed spot on its banks to fort pitt was not calculated at more than two hundred and fifty miles, and he believed the distance by land would be found not to exceed one hundred and sixty or one hundred and seventy miles. whether we measure the distance by land or water, then, the result is in favor of the potomac. if we consider the progress already made in opening this great channel, its title becomes still stronger. let me add, that it has been found, on accurate research, that the waters communicating with the ohio are not more than two or three miles distant from the sources of the potomac. this is a fact of peculiar importance. the gentleman from massachusetts yesterday raised great objections against the potomac, because it was, as he supposed, subject to periodical maladies, from which the other river was free. i am not authorized, from personal experience, or very particular information, to draw a comparison between them; but there are some general facts that may serve to show, that if there is any difference, it is more likely to be in favor of the potomac than of the susquehanna. the position contemplated on the banks of the former is considerably further from tide water than the place proposed on the latter. on this account, therefore, we have little reason to suppose that the potomac is more unhealthy. if we regard their comparative situations, westwardly, the spot on the potomac is almost as much further to the west, as it is distant from the proposed spot on the susquehanna; and he well knew that, generally speaking, as were tire towards the western and upper country, we are generally removed from the causes of those diseases to which southern situations are exposed. as the two places are moreover in the same latitude, the objection advanced, with respect to that point, cannot apply to one more than the other. it is only their western or eastern position, their remoteness from, or their proximity to the lower country, and to fresh or stagnant waters, that can possibly affect the question. it is not because we advance so much to the south that we advance to the centre, it is because we go more to the west. i do not know that there is a difference of more than a degree and five or six minutes between the latitude of new york and the place proposed on the potomac. mr. ames never intended that this question should be carried through the committee by the strength of a silent majority; he had confidence in the weight of the arguments to be urged in favor of the susquehanna, and he was willing to put the decision of the question on that ground. he would now come forward, and give the reasons of his opinion, especially as gentlemen had entered fully into the reasons which guided their own to a different conclusion. he did not conceive it would be necessary for him, coming from the part of the united states from which he did, to disclaim the local views and narrow prejudices with which the subject teemed. he had feared, when the question was first brought forward, that the minds of gentlemen would be highly fermented, indeed so much, that he almost despaired of coming to a proper decision, nor did he think these apprehensions were illusive, if he judged from what had already taken place. he had observed that some gentlemen, whose discernments were clear and who were generally guided by the straight line of rectitude, had been most surprisingly warped on the present occasion; he was fearful that their wishes had misled them from a due regard of the real object of their pursuit, viz: the public interest and convenience. he was sensible, that he himself was liable to some improper impressions; but he trusted he did not feel them in that degree which he thought he saw in others. he was willing to be led by the great principles which other gentlemen had laid down as the rule of their decision; but he thought they would lead to a different conclusion from what had been drawn from them; he admitted that a central situation is to be taken, and in considering this centre, the centre of a sea-coast line ought to be regarded, because it is more conveniently accessible, has more wealth, and more people than an equal area of inland country. being more liable to invasion, government should be near to protect it. it is the interest of the back country to have the government near the sea, to inspect and encourage trade, by which their abundant produce will find an export. and lastly, he said, the contingency of the separation of the western country was a reason for preferring the sea-coast. he proceeded next to say, there will not be any contest where this centre of the sea-coast line is to be found: it falls between the rivers potomac and susquehanna. it will be found that there are good reasons why we should rather move east than south. if the sea-coast line is to be preferred, it will follow that the back lands, west of the ohio, which the gentleman from virginia has so often taken into his calculations, will be excluded; they are not peopled; they do not affect the sea-coast line; and that line has already been voted to be the proper one by the committee. as it is true that the sea-coast has more wealth and more people than the inland country in proportion to the extent, it is equally true that the eastern half of the sea-coast has more of both than the southern. if we reckon maryland, which will be as well accommodated by the susquehanna as by the potomac, we shall find the population of the eastern part nearly two millions, and that of the southern only one million, and the population of free inhabitants still less in favor of the latter. but, sir, instead of seeking a centre geographically, we should consider the centre of common convenience. the place is the proper one where the greatest number of persons will be best accommodated. i will endeavor to show that that will be on the susquehanna. is the zeal of gentlemen, who oppose this design, influenced by their despair of removing the seat of government afterwards? i believe the people of america will not complain of it. if fixed there, i think it will be found convenient and will remain there. the susquehanna is the centre of the common convenience. at this moment there are more wealth and more inhabitants east than south of it. but the future population of america is calculated, and it is pretended that the balance of population is receding from the east. surely the present inhabitants may be allowed principally to consult their own convenience. west of the ohio is an almost immeasurable wilderness; when it will be settled, or how it will be possible to govern it, is past calculation. gentlemen will pardon me if i think it perfectly romantic to make this decision depend upon that circumstance. probably it will be near a century before those people will be considerable; if we fix the national seat in the proper place now, it would give me no inquietude to know that a hundred years hence it may be liable to be removed; but, in fact, the principle which is assumed by the committee, and which i have attempted to justify, of taking the centre of the sea-coast line, will, even in the event of that vast tract being settled, furnish abundant reasons for its remaining on the susquehanna. i will not recapitulate those reasons. we must take some principle to guide us; and though some inequalities will appear, yet let gentlemen remember, that in so vast a country great inconveniences will attend the communications of the people with government, be the seat of it where it may; and by taking the centre of the sea-coast line there will be less than any other principle. it will be found best to accommodate the greatest number; or, in other words, to be the centre of common convenience: indeed, this is not denied to be true at this moment; but the case is said to be changing. on the one hand, i think it is utopian to calculate upon the population of the united states a century hence; and, on the other hand, i admit that it is impolitic at least, perhaps unjust, to confine our attention to the present population; a quarter of a century may be a medium. will gentlemen deny that trade and manufactures will accumulate people in the eastern states, in proportion of five to three, compared with the southern? the disproportion will, doubtless, continue to be much greater than i have calculated. it is actually greater at present; for the climate and negro slavery are acknowledged to be unfavorable to population: so that husbandry, as well as commerce and manufactures, will give more people in the eastern than in the southern states. the very circumstance that gentlemen found their reasonings upon is pretty strongly against their calculations. they tell us of the vast quantities of good land still unsettled in their states; that will produce a thin population; for the old lands will not be crowded, so long as new ones are to be had. mr. carroll begged leave to give the committee some information respecting the distance from tide-water to fort cumberland; from the tide-water to the little falls was three miles, to the great falls six more, from thence to the seneca falls was also six more, and from thence to old town one hundred and seventeen; which last place was fifteen miles from fort cumberland, making in all one hundred and forty-five miles, instead of two hundred, as stated by the gentleman. mr. ames imagined his statement to be nearly right, and he found mr. jefferson stated in his notes, that the falls of the potomac were fifteen miles in extent, and a navigation extremely difficult to be made. mr. carroll said, it was not near that distance; in the fifteen miles there were three falls: the seneca, the great and little falls, but they occupy but a small part of the fifteen miles; he could certainly form some judgment of a place which he might say was almost at his door, and did not expect that mr. jefferson's notes would have been adduced as an authority to contradict information he had given in his place. as to the difficulty of the navigation, he had to observe that many of the obstacles were already so far removed as to render the transportation down to the great falls practicable; that there the canal was nearly finished, and ready to sink the lock-seats and insert the frames, so that in a little time there was a probability that no impediment whatever would obstruct the descent of produce to the tide-water. the question, on mr. lee's motion for striking out susquehanna, and inserting potomac, was put and lost; for it , against it . mr. madison then moved, to add, after "susquehanna" the words "or potomac;" this would furnish an opportunity to examine and compare the two situations. it was so favorable to a discovery of the truth, that he did not doubt but gentlemen who were desirous of grounding their decision upon a full understanding of the subject would agree to the motion. mr. boudinot seconded this motion, and supported it, by observing the necessity there appeared to be, of obtaining a more accurate knowledge of the two rivers, as gentlemen seemed to differ materially with respect to the matter of fact. mr. sherman contended, upon the principles adopted yesterday by the committee, that they could not think of going to the potomac; he said, that taking the population, even allowing the slaves in the southern states, there was the greatest weight of population north-east of the susquehanna; but upon the ratio of representation, at a member for forty thousand inhabitants, there were but one million two hundred thousand south of pennsylvania, one million four hundred thousand north, including pennsylvania; but if the calculation was made from the potomac, the south would contain nine hundred and sixty thousand inhabitants, and the north one million six hundred and eighty thousand. now, he would ask, if gentlemen could expect that the northern people would incline to go so far south? he apprehended they would not. the question being taken on inserting "or potomac," it passed in the negative. on motion of mr. page, the committee rose and reported progress, and then the house adjourned. saturday, september . _permanent seat of government._ the house then resolved itself into a committee of the whole, on establishing the permanent residence of congress; when mr. fitzsimons presented the following resolution: _resolved_, as the opinion of this committee, that the president of the united states be authorized to appoint ---- commissioners, to examine, and report to him, the most eligible situation on the east bank of the susquehanna, for the permanent seat of government of the united states. that the said commissioners be authorized, by and with the advice of the president, to purchase such quantity of lands as may be thought necessary, and to erect thereon, within ---- years, suitable buildings for the accommodation of the congress, and of the officers of the united states. that the secretary of the treasury, together with the commissioners so to be appointed, be authorized to borrow a sum not exceeding ---- dollars, to be paid in ---- years, with interest, at the rate of ---- per cent. per annum, payable out of the duties on impost and tonnage, to be applied to the purchase of the land, and the erection of the buildings aforesaid. and that a bill ought to pass, in the present session, in conformity with the aforegoing resolutions. mr. smith (of south carolina) doubted the propriety of the resolution, because he conceived the declaration in the constitution required a cession of territory as well as jurisdiction. if he was joined in this sentiment by the committee, he would move that the president be empowered to appoint commissioners to examine and report a proper place on the banks of the susquehanna for a federal town, and that, whenever the state of pennsylvania shall cede to the united states a certain district or territory, not exceeding ten miles square, congress would accept thereof for the above purpose. mr. lawrence would inquire for what purpose the cession, mentioned in the constitution, was required? it was, in the words of that instrument, to exercise exclusive legislation in all cases whatsoever; now, did this consequence involve in it a territorial possession? it certainly did not. it involved nothing more than the power of making laws independent of the state jurisdiction. the gentleman might have carried his idea further, for as the cession is to be made by particular states, it seems to infer that two states, at least, should be concerned in the cession; but would objections, from such forced constructions, have any weight in the judgment of the committee? he trusted they would not. he supposed it more rational to attend to the plain literal meaning of the constitution than to engage in the discussion of the refined speculations of ingenious men. mr. vining observed, that delaware, maryland, and virginia, had offered to cede territory, as well as jurisdiction, and there would be a great impropriety in expending the federal treasure, in purchasing the soil, when they might have it without expense. mr. ames endeavored to show that such a cession, as was contemplated in the constitution, might be made by one state to another, without giving a property to a foot of land, by comparing it with the cession of silesia to prussia, where not a single acre of soil was conveyed, but of jurisdiction to the whole province; so, when territory changes its government, by being the sacrifice of a treaty of peace. he supposed that congress were to purchase the soil necessary to erect buildings for the accommodation of the government, and was satisfied the cession might be made subsequent to their election of a particular spot. mr. seney.--the gentleman from delaware has said, that maryland proposed a cession of soil; but i believe, sir, there is not such a word as soil mentioned in the law. mr. carroll agreed with his colleague, and supposed that a cession of soil could not have been contemplated, because the state of maryland had offered any part of the state, not excepting the town of baltimore. he believed if congress were disposed to fix in that town, it would be agreeable to the state; but he did not imagine they would agree to give the general government a property to the whole town, and the surrounding country. the other parts of the state had never contemplated making the inhabitants of baltimore a compensation for such an immense property. mr. goodhue believed, if the house had agreed to go to the potomac, there would have been none of these constitutional difficulties stated. it was well known, he said, that the gentlemen from the eastward had no desire to take up the subject; but those from the southward were sanguine in their expectations that they should get the government to the potomac; and were, therefore, for pressing the business, and not allowing it to be postponed as was contended for on the other hand. mr. madison said, the business was not brought on by their original motion, though they gave it their support. it was true, that a proposition for postponement was made, but what was the extent of that postponement? till december or january next. was there any reason to suppose that those gentlemen, who were, at this day, opposed to the potomac, would give in to such a change of opinion by that time, as to induce us to agree to their proposition. we saw no reason to expect such a change. and, as in fact, we find a predetermined majority ready to dispose of us, the sooner we know our destiny the better; for it can be of little consequence, if we are to be disposed of, whether we are disposed of in september or december. mr. wadsworth.--the reiteration of being disposed of by bargaining, induces me to rise and make one remark. it is a notorious fact to the members within these walls, that the new england members, to a man, were opposed to a decision at present; and that they were disposed to accommodate the southern states. they refused all bargaining, till they were assured there was a bargaining set on foot to carry them to the potomac; why, then, are we reproached with this? whatever bargaining there has been, we were the last to come into it; we never thought of it, till we were told that we were a property, and should be disposed of, unless we took care of ourselves. i hope, as we have gone so far, we shall settle the subject in dispute, by granting the money and erecting the necessary buildings. mr. jackson denied being concerned in any bargaining whatever, and defied any gentleman to say he knew any thing of one, till he heard it mentioned on this floor; he was determined to keep himself disengaged, and to vote according as his judgment should lead him, after hearing the subject coolly and thoroughly discussed. mr. madison hoped, if he travelled a little out of order, he should be justified, after what had taken place; but he could not withhold this public declaration of his wish, that every thing that had passed on the subject alluded to by the gentleman from connecticut, (mr. wadsworth,) were to be fully understood, and were reduced to writing. every thing he knew of it he was willing, on his part, to put into that form; and he was well persuaded that it would be found, on examination, that the opposition of the southern gentlemen was of a defensive nature, and that they had not listened to a proposition, until they had reason to think it necessary to prevent a sudden and improper decision of this very important question. mr. smith, of south carolina, begged gentlemen to remember, that all the southern members had not been in favor of bringing forward the business at the present session; he had opposed it as well as some others. mr. lee conceived it to be his duty to present once more the preamble, which had been rejected in committee. he flattered himself, after the discussion which had taken place, that gentlemen were prepared to decide on liberal and national principles, and therefore they would adopt those he presented. mr. seney approved of the susquehanna in preference to the potomac, on every principle which had been brought into view, as proper to guide the house in deciding the present question. he treated the alarm which gentlemen apprehended would be given by fixing on the susquehanna as merely ideal, and existing nowhere but in the imagination of gentlemen; so far from exciting jealousy, or disturbing the public mind, he contemplated it as tending to allay uneasiness, and to give general satisfaction. on motion, the house now adjourned. monday, september . _permanent seat of government._ the house resumed the consideration of the resolutions reported by the committee of the whole for establishing the permanent residence of congress. whereupon, the first resolution was agreed to, and the second, to wit: _resolved_, that the permanent seat of the government of the united states ought to be at some convenient place on the east bank of the river susquehanna, in the state of pennsylvania; and that, until the necessary buildings be erected for the purpose, the seat of government ought to continue at the city of new york, being under consideration, mr. lee withdrew his proposition offered yesterday, and moved to amend the said resolution, by striking out the words "east bank of the river susquehanna, in the state of pennsylvania," and inserting, in lieu thereof; the "north bank of the river potomac, in the state of maryland." and, on the question that the house do agree to the said amendment, the yeas and nays were demanded, and are ayes.--messrs. baldwin, bland, brown, burke, carroll, coles, contee, gale, griffin, jackson, lee, madison, matthews, moore, page, parker, smith, (of south carolina,) stone, sumter, tucker and vining-- . nays.--messrs. benson, boudinot, cadwalader, clymer, fitzsimons, floyd, foster, gerry, gilman, goodhue, grout, hartley, hathorn, lawrence, livermore, p. muhlenberg, partridge, van rensselaer, scott, seney, sherman, sylvester, sinnickson, smith, (of maryland,) thatcher, trumbull, wadsworth and wynkoop-- . so it was determined in the negative. mr. vining said, it now became his duty, after having sacrificed a prejudice, if he had one, by giving his vote for the potomac, to bring before the house the humble claim of delaware. he apprehended that her claim to centrality, as it respected wealth and population, was superior to that of the susquehanna; and that, if a sea-coast line was to be a criterion, she was near the centre of territory. he supposed that this was the line upon which the committee was to decide for the present. it was not supposed necessary, at this time, to take into consideration the vacant and extensive western territory, or why refuse the potomac, which offered itself under the greatest advantages of an easy intercourse with that quarter? add to the reasons he had mentioned, that the united states would consult their interest by fixing on the delaware, as they would not incur the heavy expense of purchasing territory, and erecting magnificent palaces and hotels for the government, and he thought gentlemen would not hesitate to agree with him. the place he meant to offer was possessed of eminent superiority, as to salubrity of air and fertility of soil; it also united the advantages of the atlantic and inland navigation; inasmuch as, by cutting a canal from the waters of the chesapeake to the delaware, a communication would be opened from carolina, virginia, and maryland, to new jersey, pennsylvania and the midland counties of new york. the spot that he proposed for their acceptance was wilmington in the state of delaware; round which they might have a district for exclusive legislation, if it was thought proper to accept it. under these impressions, he would frame his motions in such a way, as to enable congress, when they did adjourn, to adjourn to meet at that borough. it was made in this form: to strike out the word "permanent," and all the remainder of the clause, after the words "ought to be at," and to insert in lieu of the last "the borough of wilmington, in the state of delaware." on the question that the house do agree to the said amendment, the yeas and nays were demanded, and are ayes.--messrs. baldwin, bland, boudinot, burke, cadwalader, coles, contee, griffin, jackson, lee, madison, matthews, moore, page, parker, sinnickson, smith, (of south carolina,) sumter, and vining-- . nays.--messrs. ames, benson, brown, carroll, clymer, fitzsimons, floyd, foster, gale, gerry, gilman, goodhue, grout, hartley, hathorn, heister, lawrence, livermore, p. muhlenberg, partridge, van rensselaer, scott, seney, sherman, sylvester, smith, (of maryland,) stone, thatcher, trumbull, tucker, wadsworth and wynkoop-- . mr. boudinot remarked that the peculiar situation in which he had been placed, by having the chair of the committee, prevented him from giving his sentiments on the subject then; he therefore hoped to be indulged with stating the claim of the delaware to the honor of the federal city. when a question of such great magnitude, and which involved the interests of the union, was to be decided, he thought he could be neither doing justice to the united states at large, nor his immediate constituents, were he to neglect to call their attention to what the former congress had done in favor of the delaware. he was surprised that gentlemen, who contended for the accommodation of their constituents, should be led so far astray from pursuing that object, as to pass far beyond the centre of wealth and population, as well as territory; or, if they did not pass the centre of territory, they went to a place, maugre all that had been said, devoid of those advantages which ought to attend the federal residence. the want of communication with the atlantic, the difficulty of navigating its waters, from the innumerable rocks, falls and shoals with which it abounds, which, from actual observation, he was induced to believe were insuperable obstructions to a connection with the western waters, or, if they could be surmounted, it would be at such cost of money and labor, as the united states were not in a condition to expend, at a time when the widows and orphans were starving for want of the pittance due to them by the government. the sterility of the soil, and the unhealthiness of a situation on the banks of a river which was subject to rise twenty feet and more, and overflow its banks, leaving behind vast quantities of stagnant water, whence proceeded noxious exhalations, the cause of a long catalogue of diseases, were altogether, in his mind, such objections to the place, that he could never imagine a majority of the house could consent to it. he further observed, that the government would be secluded from the world, and the channels of information; there were few inhabitants, unless it was in the neighborhood of york or lancaster. but, beside all these considerations, there was this further, that there was an existing resolution of congress for erecting the necessary buildings for their accommodation on the banks of the delaware and potomac, and an absolute grant of money for the purpose of defraying the expense. now, as these had each of them strong pretensions, he was willing to have them considered and examined by commissioners sent on the ground. for the sake of accommodation, he would, therefore, move to amend the resolution, by striking out the words "east bank of the river susquehanna, in the state of pennsylvania," and inserting in lieu thereof the words "potomac, susquehanna, or delaware." on the question that the house do agree to the said amendment, it passed in the negative; the yeas and nays being required, are as follows: yeas.--messrs. baldwin, bland, boudinot, brown, burke, cadwalader, carroll, coles, contee, griffin, jackson, lee, madison, matthews, moore, parker, page, sinnickson, smith, (of south carolina,) stone, sumter, tucker and vining-- . nays.--messrs. ames, benson, clymer, fitzsimons, floyd, foster, gale, gerry, gilman, goodhue, grout, hartley, hathorn, heister, lawrence, livermore, p. muhlenberg, partridge, van rensselaer, scott, seney, sherman, sylvester, smith, (of maryland,) thatcher, trumbull, wadsworth and wynkoop-- . mr. boudinot then moved to amend the resolution by striking out the words "east bank of the river susquehanna, in the state of pennsylvania," and inserting in lieu thereof, the words, "banks of either side of the river delaware, not more than eight miles above or below the lower falls of delaware." on this question, the yeas and nays were demanded, and are: yeas.--messrs. boudinot, cadwalader, gerry and sinnickson-- . nays.--messrs. ames, baldwin, benson, bland, brown, burke, carroll, clymer, coles, contee, fitzsimons, floyd, foster, gale, gilman, griffin, grout, goodhue, hartley, hathorn, heister, jackson, lawrence, lee, livermore, madison, matthews, moore, muhlenberg, page, parker, partridge, van rensselaer, scott, seney, sherman, sylvester, smith, (of maryland,) smith, (of south carolina,) stone, sumter, thatcher, trumbull, tucker, wadsworth and wynkoop-- . mr. stone then moved to amend the resolution, by striking out the words "east bank," and inserting in lieu thereof the word "banks;" and on the question, that the house do agree to the said amendment, the yeas and nays being demanded, were as follow: yeas.--messrs. baldwin, bland, boudinot, brown, burke, cadwalader, carroll, coles, contee, gale, griffin, jackson, lee, madison, matthews, moore, page, parker, seney, sinnickson, smith, (of maryland,) smith, (of south carolina,) stone, sumter, tucker, and vining-- . nays.--messrs. ames, benson, clymer, fitzsimons, floyd, foster, gerry, gilman, goodhue, grout, hartley, hathorn, heister, lawrence, livermore, muhlenberg, partridge, van rensselaer, scott, sherman, sylvester, thatcher, trumbull, wadsworth and wynkoop-- . so it passed in the affirmative. a motion was then made and seconded, further to amend the said resolution, by inserting, after the word "pennsylvania," the words "or maryland," and, on the question the house do agree to the said amendment, it passed in the negative; and the yeas and nays being demanded, were as follow: ayes.--messrs. baldwin, bland, boudinot, brown, burke, cadwalader, carroll, coles, contee, gale, griffin, jackson, lee, madison, matthews, moore, page, parker, sinnickson, smith, (of m.) smith, (of s. c.) stone, sumter, tucker and vining-- . nays.--messrs. ames, benson, clymer, fitzsimons, floyd, foster, gerry, gilman, goodhue, grout, hartley, hathorn, heister, lawrence, livermore, p. muhlenberg, partridge, van rensselaer, scott, seney, sherman, sylvester, thatcher, trumbull, wadsworth and wynkoop-- . mr. lee expected the question would be divided on the resolution, as it contained two distinct objects, the permanent and temporary residence. mr. page suggested the propriety of striking out the latter part of the clause, relating to new york, and to confine the resolution merely to the avowed object, namely, the permanent residence. the question was taken on striking out, and it passed in the negative, for, against it. mr. vining then moved to strike out the words "city of new york," and insert, in lieu thereof, "borough of wilmington, in the state of delaware;" and on the question to agree to the said amendment, the yeas and nays being demanded, were as follow: ayes.--messrs. baldwin, bland, boudinot, brown, burke, cadwalader, carroll, coles, contee, gale, griffin, jackson, lee, madison, matthews, moore, page, parker, sinnickson, sumter and vining-- . nays.--messrs. ames, benson, clymer, fitzsimons, floyd, foster, gerry, gilman, goodhue, grout, hartley, hathorn, heister, lawrence, livermore, muhlenberg, partridge, van rensselaer, scott, seney, sherman, sylvester, smith, (of maryland,) smith, (of south carolina,) stone, thatcher, trumbull, tucker, wadsworth and wynkoop-- . so it passed in the negative. mr. parker moved to strike out "new york" and insert "philadelphia." mr. lee said the city of new york possessed every convenience and accommodation; he was strongly impressed in favor of the inhabitants, their urbanity and industry did honor to america, and nothing could induce him to vote for striking out the words, but a sense of duty. he flattered himself that a regard would now be paid to the great principles of centrality, which philadelphia possessed in a great degree; the conveniences and accommodations to be found in that city were equal, if not superior, to what new york presented; her public buildings and institutions were, he believed, at their command; the inhabitants were industrious, temperate, and frugal; in short, every principle which operated in favor of the susquehanna, as a permanent residence, applied with equal or more force in favor of philadelphia as the temporary seat of government. mr. sherman hoped the house were disposed to make as few removes as possible, and that as the buildings for their accommodation might be in readiness in two or three years at the permanent residence, they would be disposed to continue in new york till that time. on the question, that the house do agree to the said amendment, the yeas and nays being demanded, are as follows: ayes.--messrs. baldwin, boudinot, brown, burke, cadwalader, carroll, coles, contee, gale, griffin, heister, jackson, lee, madison, matthews, moore, page, parker, sinnickson, stone, sumter and vining-- . nays.--messrs. ames, benson, bland, clymer, fitzsimons, floyd, foster, gerry, gilman, goodhue, grout, hartley, hathorn, lawrence, livermore, p. muhlenberg, partridge, van rensselaer, scott, seney, sherman, sylvester, smith, (of maryland,) smith, (of south carolina,) thatcher, trumbull, tucker, wadsworth and wynkoop-- . the main question being put, the second resolution, as amended, was agreed to by the house, in the words following, to wit: "_resolved_, that the permanent seat of the government of the united states ought to be at some convenient place on the banks of the river susquehanna, in the state of pennsylvania; and that, until the necessary buildings be erected for the purpose, the seat of government ought to continue in the city of new york." the third resolution, in the words following, to wit: "_resolved_, that the president of the united states be authorized to appoint three commissioners, to examine and report to him the most eligible situation on the banks of the susquehanna, in the state of pennsylvania, for the permanent seat of the government of the united states; that the said commissioners be authorized under the direction of the president, to purchase such quantity of land as may be thought necessary, and to erect thereon, within four years, suitable buildings for the accommodation of the congress, and of the other officers of the united states; that the secretary of the treasury, together with the commissioners so to be appointed, be authorized to borrow a sum, not exceeding one hundred thousand dollars, to be repaid within twenty years, with interest, not exceeding the rate of five per cent. per annum, out of the duties on impost and tonnage, to be applied to the purchase of the land, and the erection of buildings aforesaid; and that a bill ought to pass, in the present session, in conformity with the foregoing resolutions." a motion was made by mr. gale, to amend the same, by inserting after the word "aforesaid" the following proviso, viz: "provided, nevertheless, that, previous to any such purchase, or erection of buildings as aforesaid, the legislatures of the states of pennsylvania and maryland make such provision for removing all obstructions to the navigation of the said river, between the seat of the federal government and the mouth thereof, as may be satisfactory to the president of the united states." the ayes and nays being demanded, it passed in the negative. ayes.--messrs. baldwin, boudinot, brown, burke, cadwalader, carroll, coles, contee, gale, jackson, lee, madison, matthews, moore, page, parker, seney, sinnickson, smith, (of maryland,) smith, (of south carolina,) stone, sumter, tucker and vining-- . nays.--messrs. ames, benson, clymer, fitzsimons, floyd, foster, gale, gilman, goodhue, grout, hartley, hathorn, heister, lawrence, livermore, muhlenberg, partridge, van rensselaer, scott, sherman, sylvester, thatcher, trumbull, wadsworth and wynkoop-- . and then the main question being put, do the house agree to the said third resolution, as reported by the committee of the whole house? the ayes and nays being demanded, it passed in the affirmative. ayes.--messrs. ames, benson, clymer, fitzsimons, floyd, foster, gale, gilman, goodhue, grout, hartley, hathorn, heister, lawrence, livermore, muhlenberg, partridge, van rensselaer, scott, seney, sherman, sylvester, smith, (of maryland,) stone, thatcher, trumbull, wadsworth and wynkoop-- . nays.--messrs. baldwin, boudinot, brown, burke, cadwalader, carroll, coles, contee, gerry, jackson, lee, madison, matthews, moore, page, parker, sinnickson, smith, (of south carolina,) sumter, tucker and vining-- . _ordered_, that a bill or bills be brought in, pursuant to the foregoing resolutions, and that messrs. ames, lawrence, and clymer, do prepare and bring in the same. monday, september . _seat of government._ the house proceeded to consider the bill to establish the seat of government of the united states, which lay on the table, with the amendments, as reported by the committee of the whole house. mr. smith proposed to confine the choice of a situation on the banks of the susquehanna, between checkiselungo creek and the mouth of the river. he was seconded by mr. seney. mr. hartley hoped the committee would limit it as near the spot contemplated as possible. mr. heister said, he moved, the other day, for a particular spot on the river, which he conceived entitled to a preference; if the proposed motion obtained, that place would be excluded, and he should hesitate respecting his vote upon the bill. mr. seney by no means wished to embarrass the committee; if the motion proposed would, any how, have that effect, he should withdraw his second. mr. madison felt himself compelled to move for striking out that part of the bill which provided that the temporary residence of congress should continue at new york; as he conceived it irreconcilable with the spirit of the constitution. if it was not from viewing it in this light, he should have given the bill no further opposition; and now he did not mean to enter on the merits of the main question. from the constitution, it appeared that the concurrence of the two houses of congress was sufficient to enable them to adjourn from one place to another; nay, the legal consent of the president was, in some degree, prescribed in the th section of article st, where it is declared, that every order, resolution, or vote, to which the concurrence of the senate and house of representatives may be necessary, (except on a question of adjournment,) shall be presented to the president of the united states, and approved by him, before the same shall take effect. any attempt, therefore, to adjourn by law, is a violation of that part of the constitution which gives the power, exclusively, to the two branches of the legislature. if gentlemen saw it in the same light, he flattered himself they would reject that part of the bill; and, however little they valued the reflection that this city was not central, which had been so often urged, they would be guided by arguments springing from a superior source. he would proceed to state the reasons which induced him to be of this opinion; it is declared in the constitution, that neither house, during the session of congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting; from hence he inferred, that the two houses, by a concurrence, could adjourn for more than three days, and to any other place which they thought proper; by the other clause he had mentioned, the executive power is restrained from any interference with the legislative on this subject; hence, he concluded, it would be dangerous to attempt to give to the president a power which the constitution expressly denied him. tuesday, september . _seat of government._ the engrossed bill to establish the seat of government of the united states was read a third time; and the question was, shall this bill pass? mr. carroll said, he felt himself under peculiar circumstances on the decision of this important question. the house had determined that the permanent seat of the government of the united states should be on the susquehanna, in pennsylvania, and not in maryland on the potomac. it was his opinion that the last would have been most conducive to the interest of the union; the voice of the majority of this house is against it. the susquehanna, said he, being the next object most likely to attain what i have laid down as the rule of my conduct on this occasion, and, at the same time, must be agreeable to the wishes of a great part of my constituents, i felt myself under an obligation to vote for the susquehanna, upon obtaining the clause which made it obligatory upon the states of maryland and pennsylvania to concur in opening the navigation of that river; and nothing would restrain me from giving my assent to the bill, but that clause which requires the concurrence of the president respecting the seat of government, until congress meet at their permanent seat. to this clause i have strong constitutional objections; they were yesterday fully stated to this house by other gentlemen. i have endeavored to remove this conviction from my mind, in order to give my assent to the bill; but as i am under the sacred obligation of an oath to support the constitution, as i cannot efface the conviction from my mind that it is contrary to the constitution, and as we could not succeed in striking out the clause, i feel myself under the disagreeable necessity of giving my dissent to the bill. the yeas and nays, on passing the bill, being required by one-fifth of the members present, were as follow: yeas.--messrs. ames, baldwin, benson, clymer, contee, fitzsimons, floyd, foster, gale, gilman, goodhue, grout, hartley, hathorn, jackson, lawrence, leonard, livermore, muhlenberg, partridge, van rensselaer, scott, seney, sherman, sylvester, smith, (of maryland,) stone, thatcher, trumbull, wadsworth and wynkoop-- . nays.--messrs. bland, boudinot, burke, cadwalader, carroll, coles, lee, madison, matthews, moore, parker, schureman, smith, (of south carolina,) sumter, tucker, vining, and white-- . the bill having passed, was sent to the senate for their concurrence. saturday, september . _seat of government._ a message from the senate was received, informing the house that they had passed the bill for establishing the seat of government of the united states, with an amendment, which the house immediately took into consideration. the amendment went to strike out all that related to the river susquehanna, both as to fixing the seat of government there, and removing the obstructions to the navigation; and to insert, in lieu thereof, "a district of ten miles square, bounded on the south by a line running parallel at one mile's distance from the city of philadelphia, on the east side of the river of delaware, and extending northerly and westerly, so as to include germantown." mr. bland thought the bill was so materially changed as to warrant the house to postpone its consideration. the principles upon which the senate had proceeded, he believed, had not yet been discussed in the house, and the short time which now remained of the session forbade the attempt. mr. page seconded this motion. mr. smith (of south carolina) hoped that gentlemen would agree to let the bill lie on the table, and not to be driven into a measure which they considered injurious to the public interest. he trusted they would not be influenced to adopt this bill, by the senate's keeping the appropriation bill as a hostage for it, which he understood to be the case. mr. fitzsimons was sorry to hear a thing of that kind insinuated against so respectable a body. he trusted the gentleman had been misinformed; but should be glad to know his authority. mr. partridge declared that a knowledge of this fact would have considerable influence on his conduct; therefore, he was desirous of knowing to what an extent it was a certainty. mr. bland would not charge the senate with retaining the appropriation bill as a hostage; but he thought it of more importance than the bill they had now sent down, and wished it had been first acted upon. mr. speaker informed the house that the appropriation bill was sent only yesterday to the senate. mr. stone did not suspect the senate of the conduct which had been intimated; but, nevertheless, he was in favor of the postponement. mr. lee remarked that the great principles which this house had adopted, on full debate, were now thrown out of view; they had nothing to do with the amendment which the senate had made. he could not, after this circumstance, bring himself to believe that the house would agree to the alteration, without discussing the other principles upon which it must be founded. and here the approaching termination of the session, and the quantity of unfinished business, presented to the mind a strong objection; either it could not be done at all, or done to great disadvantage. beside, if it is laid over to the next session, the voice of the people may be better understood on this important question; when that was fully and fairly expressed, he flattered himself with a harmonious determination, to which all parties would submit without a single murmur. mr. sherman thought the amendment of the senate founded in wisdom, and upon true principles; the house had now nothing else before them. indeed, they had just been spending an hour or two upon a very uninteresting subject respecting printers; he therefore trusted they would proceed to consider the amendment fully, and come in a proper time to a decision upon it. mr. white considered the amendment of the senate as totally changing the tenor of the bill, and therefore it was like introducing a new subject. indeed, in all the long arguments which the question had drawn out, he believed this place had never been mentioned. the gentleman last up, said there was no business before the house at present: but he would ask, if a business had never yet been before them, whether a member would be permitted to bring it forward at this late hour. he might be told, that the act of the senate carried greater weight in it than the motion of a member. but he would place against that weight, the weight of the vote of this house, which on a former day agreed to fix the seat of government on the banks of the susquehanna; so that the question may be supposed to stand on independent ground. but there was a collateral observation he would make. if germantown was the proper place for the permanent residence of congress, it was so near philadelphia as to prove that that city would be the proper place for the temporary residence, and of course they ought to move there immediately, and order the next session to be held there; but both these questions were of too much moment to be fixed by a hasty vote of the house. mr. jackson had given his assent to the bill as it passed the house, after a fair opposition: he was satisfied his fellow-citizens would submit to what appeared to be the voice of their country; though they would have preferred the potomac on account of its centrality and contiguity to the western territory, yet he acceded to the susquehanna; but this was no reason he should vote for germantown. who are those that say to us, germantown is the most proper spot that can be selected? they are the representatives of the state sovereignties; where the large and small states are equally represented, the voice of the majority of the people is lost in the inequality of the political branch of the legislature. he could not but think an alteration in the sentiment of the house, on this ground, would excite serious alarm in the minds of the people; to avoid which consequence, he should agree to the postponement. mr. gerry urged, as a reason for postponement, that north carolina and rhode island were out of the union at present; and that, as there was a flattering expectation that at least one of those states would adopt the constitution by the next session, it would be extremely desirable to have their voice in determining this great question. mr. madison.--however different our sentiments, with respect to the place most proper for the seat of the federal government, i presume we shall all agree that a right decision is of great importance; and that a satisfactory decision is of equal moment to the happiness and tranquillity of the union: that even the manner and circumstances under which such decision may take place, are worthy of serious consideration. now, sir, the amendment proposed by the senate, not only deserves the name of a new bill, but it proceeds on principles different from those which served for the basis of the bill sent up to them from this house: hence i presume, sir, it is not only necessary to examine the merits of the proposition, but to enter into a full and minute investigation of those principles upon which it is founded: the proposition is new and in some degree opposed to what has heretofore prevailed: the public mind has not yet been called to the consideration of it; nay, i believe it never yet has been contemplated by the inhabitants of any one state: the eye of america should be indulged with an opportunity of viewing it before it be made their fixed abode. all the other places which have been mentioned as candidates for the seat of government, on this occasion, have at different times, and in different forms, been held up to the public attention; two of them had not only employed the deliberation, but had obtained the favorable decision of the old congress; now after all this, to take up and adopt in a moment, a rival place, never before contemplated, is risking an improper and a dissatisfactory decision. mr. stone reminded the house of the majority there was in selecting the susquehanna, which he conceived to be the second best spot in the united states; and how much greater that majority would have been than to , if no other question had been involved in the bill: he could hardly suppose such a change of sentiment would take place without argument, as was necessary in order to get the senate's amendment adopted, which, he understood, was carried by a small majority indeed. mr. white would just add one observation, which was respecting the enormous price of land in the vicinity of philadelphia; and how imprudent it would be for congress to subject themselves to an exorbitant demand of this nature, by fixing upon the precise spot where this federal town should be. the question was now taken on postponing the consideration of the amendment proposed by the senate, until the next session; and the yeas and nays being called, are: yeas.--messrs. baldwin, bland, brown, burke, carroll, coles, contee, gale, gerry, griffin, jackson, lee, madison, matthews, moore, page, parker, schureman, seney, smith, (of maryland,) smith, (of south carolina,) stone, sumter, tucker and white-- . nays.--messrs. ames, benson, boudinot, cadwalader, clymer, fitzsimons, floyd, foster, gilman, goodhue, grout, hartley, hathorn, heister, lawrence, leonard, livermore, muhlenberg, partridge, van rensselaer, scott, sherman, sylvester, sinnickson, thatcher, trumbull, vining, wadsworth, and wynkoop-- . so it was determined in the negative. monday, september . _seat of government._ mr. sherman--in our deliberations on this occasion, we should have an eye to the general accommodation of the union, and the best way of defraying the expense. the place fixed upon by the senate, he presumed, was known to the members generally; hence they were able to judge of its eligibility at the first view; it certainly possessed some advantages over the other situation; and he believed it was as central, if not more so than the susquehanna, as it respected the present inhabitants; the air, the soil, in that neighborhood, were quite as agreeable as the other. but there was an access by water, from every part of the united states, which furnished a very great convenience; but beside this, those who came from the southern states, had generally an inland navigation, with a short distance to come by land from the head of the elk; so the citizens of the eastern states, in like manner, would be accommodated by coming through the sound and crossing to amboy, on which route they would have but about miles land carriage; a distance nearly equal with the other. he admitted that germantown was not quite so near to the western territory as the susquehanna was; but he contemplated a very distant day before it would be settled, and much longer before the inhabitants would have frequent occasion of travelling to the seat of government. added to the advantages he had mentioned, there were good buildings, and convenience for arsenals and ship-yards, with abundance of artificers on the spot; these considerations, taken together, induced him to think it best to concur with the senate. mr. smith thought the honorable gentleman rather inconsistent in his argument to-day. if he recollected right, the gentleman had formerly urged in favor of the susquehanna, that it was not accessible by vessels from sea; and now he recommends this quality as an advantage in favor of the delaware. the gentleman admits that this position is not quite so near the western territory as the one chosen by the house; but then he thinks no inconvenience will arise, inasmuch as it will be some years before it is peopled: but how does this comport with the principle laid down by an almost unanimous vote of the house? at the beginning of this business, we declare that a due regard should be had to the western territory; he now tells us, as an argument in favor of the senate's amendment, that we should have no regard to it at all. he thinks the change made in the manner of obtaining the money favorable; but what advantage will accrue to the united states from pennsylvania's granting , dollars, when congress will have to purchase the land on which they are to sit down? land in the neighborhood of philadelphia, he had been told, was worth or pounds an acre. the , dollars, given by pennsylvania, would not go far in a purchase at this rate. he thought the government would have a better bargain in buying cheap lands on the susquehanna; or perhaps they might have been got there for nothing. he thought this alteration unfavorable to the public treasury, which could illy supply such a demand upon it. mr. madison contended that the amendment proposed by the senate was a departure from every principle adopted by the house; but he would not trouble them with a recapitulation of arguments, which he feared would be unavailing; he wished, however, that the house would provide against one inconvenience, which was, to prevent the district in pennsylvania, chosen by congress, from being deprived for a time of the benefit of the laws. this, he apprehended, would be the case, unless congress made provision for the operation of the laws of pennsylvania, in the act by which they accepted of the cession of that state; for the state relinquished the right of legislation from the moment that congress accepted of the district. the propriety of this proposition was so apparent, that he had not a doubt but the house would consent to it. he then moved the following proviso: "and provided, that nothing herein contained shall be construed to affect the operation of the laws of pennsylvania, within the district ceded and accepted, until congress shall otherwise provide by law." mr. livermore objected to this motion; because he supposed there was no necessity for it. the question was then taken, do the house agree to the amendment? and decided in the affirmative. the yeas and nays being demanded, are as follows: yeas.--messrs. ames, cadwalader, clymer, fitzsimons, floyd, foster, gerry, gilman, goodhue, grout, hartley, hathorn, heister, huntington, lawrence, leonard, livermore, muhlenberg, partridge, van rensselaer, schureman, scott, sherman, sylvester, sinnickson, thatcher, trumbull, vining, wadsworth and wynkoop-- . nays.--messrs. baldwin, bland, boudinot, brown, burke, carroll, coles, contee, gale, griffin, jackson, lee, madison, matthews, moore, page, parker, seney, smith, (of maryland,) smith, (of south carolina,) stone, sumter, tucker, and white-- . and here the bill was dropped for the session. tuesday, september . the two following messages were received from the president: united states, sept. , . _gentlemen of the house of representatives:_ his most christian majesty, by a letter dated the th of june last, addressed to the president and members of the general congress, of the united states of north america, announces the much lamented death of his son the dauphin. the generous conduct of the french monarch and nation towards this country renders every event that may affect his or their prosperity interesting to us; and i shall take care to assure him of the sensibility with which the united states participate in the affliction which a loss so much to be regretted must have occasioned both to him and them. geo. washington. united states, sept. , . _gentlemen of the house of representatives:_ having yesterday been informed, by a joint committee of both houses of congress, that they had agreed to a recess, to commence this day, and to continue until the first monday in january next, i take the earliest opportunity of acquainting you that, considering how long and laborious this session has been, and the reasons which, i presume, have produced this resolution, it does not appear to me expedient to recommend any measures to their consideration at present. geo. washington. on motion of mr. gerry, it was ordered, that it shall be the duty of the secretary of the senate and clerk of the house, at the end of each session, to send a printed copy of the journals thereof, respectively, to the supreme executive, and each branch of the legislature, of every state. and then it was ordered that a message be sent to the senate, to inform them that this house having completed the business before them, are now about to proceed to close the present session, by an adjournment on their part, agreeably to the order of the th instant; and that the clerk of this house do go with the said message. the clerk accordingly went with the said message, and being returned, the speaker adjourned the house until the first monday in january next. first congress.--second session. begun at the city of new york, january , . proceedings in the senate. monday, january , . the following members of the senate assembled: from new hampshire, john langdon and paine wingate. from massachusetts, caleb strong and tristram dalton. from connecticut, william s. johnson. from new york, rufus king and philip schuyler. from south carolina, ralph izard and pierce butler. from georgia, william few. a quorum of members not being present, they adjourned till to-morrow. tuesday, january . john henry, from maryland, in addition to the members assembled yesterday, attended; but not being a quorum, they adjourned. wednesday, january . william maclay, from pennsylvania, attended; a quorum of the members of the senate were present, and the secretary was directed to inform the house of representatives that a quorum of the senate have assembled, and are ready to proceed to business. _ordered_, that messrs. strong and izard be a committee on the part of the senate, with such committee as the house of representatives may appoint on their part, to inform the president of the united states that a quorum of the two houses is assembled, and will be ready in the senate chamber, at such time as the president may appoint, to receive any communications he may be pleased to make. thursday, january . oliver ellsworth, of connecticut, and william paterson, from new jersey, attended. a message from the house of representatives informed the senate that they have resolved that two chaplains, of different denominations, be appointed to congress for the present session, one by each house, who shall interchange weekly. mr. strong, on behalf of the joint committee, reported to the senate, that they had waited on the president of the united states, agreeably to the order of both houses, and that he informed the committee that he would meet the two houses in the senate chamber to-morrow at o'clock. friday, january . _ordered_, that the house of representatives be informed that the senate are ready to meet them in the senate chamber, to receive any communication the president of the united states may be pleased to make to the two houses of congress; and that the usual seats will be assigned them. the house of representatives having accordingly taken their seats, the president of the united states came into the senate chamber, and addressed both houses of congress as followeth: _fellow-citizens of the senate, and house of representatives:_ i embrace with great satisfaction the opportunity which now presents itself of congratulating you on the present favorable prospects of our public affairs. the recent accession of the important state of north carolina to the constitution of the united states, (of which official information has been received;) the rising credit and respectability of our country; the general and increasing good-will towards the government of the union; and the concord, peace, and plenty with which we are blessed, are circumstances auspicious in an eminent degree to our national prosperity. in resuming your consultations for the general good, you cannot but derive encouragement from the reflection that the measures of the last session have been as satisfactory to your constituents, as the novelty and difficulty of the work allowed you to hope. still further to realize their expectations, and to secure the blessings which a gracious providence has placed within our reach, will, in the course of the present important session, call for the cool and deliberate exertion of your patriotism, firmness, and wisdom. among the many interesting objects which will engage your attention, that of providing for the common defence will merit particular regard. to be prepared for war, is one of the most effectual means of preserving peace. a free people ought not only to be armed, but disciplined; to which end, a uniform and well-digested plan is requisite: and their safety and interest require that they should promote such manufactures as tend to render them independent of others for essential, particularly military supplies. the proper establishment of the troops which may be deemed indispensable will be entitled to mature consideration. in the arrangements which may be made respecting it, it will be of importance to conciliate the comfortable support of the officers and soldiers with a due regard to economy. there was reason to hope that the pacific measures adopted with regard to certain hostile tribes of indians, would have relieved the inhabitants of our southern and western frontiers from their depredations; but you will perceive, from the information contained in the papers which i shall direct to be laid before you, (comprehending a communication from the commonwealth of virginia,) that we ought to be prepared to afford protection to those parts of the union, and, if necessary, to punish aggressors. the interests of the united states require that our intercourse with other nations should be facilitated by such provisions as will enable me to fulfil my duty, in that respect, in the manner which circumstances may render most conducive to the public good; and to this end, that the compensations to be made to the persons who may be employed, should, according to the nature of their appointments, be defined by the law; and a competent fund designated for defraying the expenses incident to the conduct of our foreign affairs. various considerations also render it expedient that the terms on which foreigners may be admitted to the rights of citizens, should be speedily ascertained by a uniform rule of naturalization. uniformity in the currency, weights and measures, of the united states, is an object of great importance, and will, i am persuaded, be duly attended to. the advancement of agriculture, commerce, and manufactures, by all proper means, will not, i trust, need recommendation; but i cannot forbear intimating to you the expediency of giving effectual encouragement, as well to the introduction of new and useful inventions from abroad, as to the exertions of skill and genius in producing them at home; and of facilitating the intercourse between the distant parts of our country by a due attention to the post-office and post-roads. nor am i less persuaded that you will agree with me in opinion, that there is nothing which can better deserve your patronage than the promotion of science and literature. knowledge is in every country the surest basis of public happiness. in one in which the measures of government receive their impression so immediately from the sense of the community as in ours, it is proportionably essential. to the security of a free constitution it contributes in various ways. by convincing those who are intrusted with the public administration, that every valuable end of government is best answered by the enlightened confidence of the people, and by teaching the people themselves to know and to value their own rights to discern and provide against invasions of them; to distinguish between oppression and the necessary exercise of lawful authority; between burthens proceeding from a disregard to their convenience, and those resulting from the inevitable exigencies of society; to discriminate the spirit of liberty from that of licentiousness, cherishing the first, avoiding the last, and uniting a speedy but temperate vigilance against encroachments, with an inviolable respect to the laws. whether this desirable object will be best promoted by affording aids to seminaries of learning already established, by the institution of a national university, or by any other expedients, will be well worthy of a place in the deliberations of the legislature. _gentlemen of the house of representatives:_ i saw with peculiar pleasure, at the close of the last session, the resolution entered into by you, expressive of your opinion that an adequate provision for the support of the public credit is a matter of high importance to the national honor and prosperity. in this sentiment i entirely concur. and, to a perfect confidence in your best endeavors to devise such a provision as will be truly consistent with the end, i add an equal reliance on the cheerful co-operation of the other branch of the legislature. it would be superfluous to specify inducements to a measure in which the character and permanent interests of the united states are so obviously and so deeply concerned, and which has received so explicit a sanction from your declaration. _gentlemen of the senate and house of representatives:_ i have directed the proper officers to lay before you, respectively, such papers and estimates as regard the affairs particularly recommended to your consideration, and necessary to convey to you that information of the state of the union, which it is my duty to afford. the welfare of our country is the great object to which our cares and efforts ought to be directed. and i shall derive great satisfaction from a co-operation with you, in the pleasing though arduous task of insuring to our fellow-citizens the blessings which they have a right to expect from a free, efficient and equal government. geo. washington. united states, january , . the president of the united states having retired, and the two houses being separated: _ordered_, that messrs. king, izard, and paterson, be a committee to prepare and report the draft of an address to the president of the united states, in answer to his speech delivered this day to both houses of congress, in the senate chamber. _ordered_, that the speech of the president of the united states, delivered this day, be printed for the use of the senate. the senate adjourned to monday next. monday, january . mr. king, on behalf of the committee, reported an address to the president of the united states, in answer to his speech to both houses of congress, which being amended, was adopted as followeth: _to the president of the united states._ sir:--we, the senate of the united states, return you our thanks for your speech delivered to both houses of congress. the accession of the state of north carolina to the constitution of the united states gives us much pleasure: and we offer you our congratulations on that event, which at the same time adds strength to our union, and affords a proof that the more the constitution has been considered, the more the goodness of it has appeared. the information which we have received, that the measures of the last session have been as satisfactory to our constituents as we had reason to expect, from the difficulty of the work in which we were engaged, will afford us much consolation and encouragement in resuming our deliberations, in the present session, for the public good; and every exertion on our part shall be made to realize and secure to our country those blessings which a gracious providence has placed within our reach. we are persuaded that one of the most effectual means of preserving peace is to be prepared for war; and our attention shall be directed to the objects of common defence, and to the adoption of such plans as shall appear the most likely to prevent our dependence on other countries for essential supplies. in the arrangements to be made respecting the establishment of such troops as may be deemed indispensable, we shall, with pleasure, provide for the comfortable support of the officers and soldiers, with a due regard to economy. we regret that the pacific measures adopted by government, with regard to certain hostile tribes of indians, have not been attended with the beneficial effects towards the inhabitants of our southern and western frontiers which we had reason to hope, and we shall cheerfully co-operate in providing the most effectual means for their protection, and, if necessary, for the punishment of aggressors. the uniformity of the currency, and of weights and measures; the introduction of new and useful inventions from abroad, and the exertions of skill and genius in producing them at home; the facilitating the communication between the distant parts of our country, by means of the post-office and post-roads; a provision for the support of the department of foreign affairs, and a uniform rule of naturalization, by which foreigners may be admitted to the rights of citizens, are objects which shall receive such early attention as their respective importance requires. literature and science are essential to the preservation of a free constitution: the measures of government should, therefore, be calculated to strengthen the confidence that is due to that important truth. agriculture, commerce, and manufactures, forming the basis of the wealth and strength of our confederated republic, must be the frequent subject of our deliberation, and shall be advanced by all proper means in our power. public credit being an object of great importance, we shall cheerfully co-operate in all proper measures for its support. proper attention shall be given to such papers and estimates as you may be pleased to lay before us. our cares and efforts shall be directed to the welfare of our country; and we have the most perfect dependence upon your co-operating with us, on all occasions, in such measures as will insure to our fellow-citizens the blessings which they have a right to expect from a free, efficient, and equal government. tuesday, january . _ordered_, that the address to the president of the united states, in answer to his speech, be presented by the vice president, attended by the senate, and that the committee which reported the address wait on the president, and desire to be informed at what time and place he will receive the same. mr. king, in behalf of the committee, reported that it would be agreeable to the president to receive the address of the senate, in answer to his speech, on thursday next, at o'clock, at his own house. wednesday, january . jonathan elmer, from new jersey, attended. benjamin hawkins, from north carolina, appeared, produced his credentials, and took his seat. the vice president administered the oath to mr. hawkins. thursday, january . agreeably to the order of the th instant, the senate waited on the president of the united states, at his own house, where the vice president, in their name, delivered to the president of the united states the address agreed to on the th instant: to which the president of the united states was pleased to make the following reply: _gentlemen:_ i thank you for your address, and for the assurances which it contains of attention to the several matters suggested by me to your consideration. relying on the continuance of your exertions for the public good, i anticipate for our country the salutary effects of upright and prudent counsels. g. washington. the senate having returned to the senate chamber, adjourned. friday, january . _ordered_, that messrs. ellsworth, hawkins, and paterson, be a committee to bring in a bill, in addition to "an act to establish the judicial courts of the united states." wednesday, january . on motion, _resolved_, that messrs. ellsworth, maclay, and henry, be a committee to confer with such committee as may be appointed on the part of the house of representatives, to consider and report whether or not the business began previous to the late adjournment of congress, shall now be proceeded in as if no adjournment had taken place. _ordered_, that a message be sent to the house of representatives, acquainting them herewith, and requesting the appointment of a similar committee on their part. thursday, january . robert morris from pennsylvania, attended. a message from the house of representatives informed the senate that they had agreed to the appointment of a committee on their part, consisting of messrs. sherman, thatcher, hartley, white, and jackson, to confer with the committee appointed on the part of the senate, to consider and report whether or not the business begun previous to the late adjournment of congress, shall now be proceeded in as if no adjournment had taken place. friday, january . mr. ellsworth, on behalf of the "joint committee of the two houses, appointed to consider and report whether or not the business begun previous to the late adjournment of congress, shall now be proceeded in as if no adjournment had taken place," reported. _ordered_, that the consideration of the report be deferred until monday next. monday, january . the senate proceeded to consider the report of the joint committee of the senate and house of representatives, appointed the th instant, to wit: "that the business unfinished between the two houses at the late adjournment ought to be regarded as if it had not been passed upon by either;" and, on motion that the report of the committee be postponed, it passed in the negative. and, upon the question to agree to the report of the committee, the yeas and nays being required by one-fifth of the senators present: _yeas._--messrs. butler, dalton, ellsworth, few, hawkins, henry, johnson, king, schuyler, and strong-- . _nays._--messrs. bassett, elmer, izard, langdon, maclay, morris, paterson, and wingate-- . and so it passed in the affirmative. and it was _resolved_, that the business unfinished between the two houses at the late adjournment ought to be regarded as if it had not been passed upon by either. tuesday, january . a message from the house of representatives announced their agreement with the senate in their resolution, that the business unfinished between the two houses, at the late adjournment, ought to be regarded as if it had not been passed upon by either. thursday, january . on motion it was _ordered_, that the letter from the governor of rhode island of the th of january instant, to the president of the united states, requesting a further suspension of the acts of congress subjecting the citizens of the state of rhode island to the payment of foreign tonnage and foreign duties, during the pleasure of congress, and communicated with the president's message this day, be referred to the same committee. friday, january . samuel johnston, from north carolina, appeared, produced his credentials, and took his seat in the senate. the vice president administered the oath to mr. johnston. tuesday, may . the senate proceeded to consider the report of the committee appointed the th of april, to consider what provisions will be proper for congress to make, in the present session, respecting the state of rhode island; whereupon, _resolved_, that all commercial intercourse between the united states and the state of rhode island, from and after the first day of july next, be prohibited, under suitable penalties; and that the president of the united states be authorized to demand of the state of rhode island ---- dollars, to be paid into the treasury of the united states by the ---- day of ---- next; which shall be credited to the said state, in account with the united states; and that a bill or bills be brought in for those purposes. _ordered_, that the committee who brought in the above report prepare and report a bill accordingly. thursday, may . mr. ellsworth, reported, from the committee appointed may d, to consider and report their opinion on the question, when according to the constitution, the terms for which the president, vice president, senators, and representatives, have been respectively chosen, shall be deemed to have commenced; and, also, to consider of, and report their opinion on such other matters as they shall conceive have relation to this question. _ordered_, that this report lie for consideration. friday, may . the senate proceeded to consider the report of the joint committee, appointed the th of april, which is as follows: the committee of the senate, to join with a committee appointed by the house of representatives, to consider and report their opinion on the question, when, according to the constitution, the terms for which the president, vice president, senators, and representatives, have been respectively chosen, shall be deemed to have commenced; and, also, to consider of, and report their opinion on, such other matters as they should conceive to have relation to this question, report, as the opinion of the said joint committee: that the terms for which the president, vice president, senators, and representatives, of the united states, were respectively chosen, did, according to the constitution, commence on the th day of march, ; and so the senators of the first class, and the representatives, will not, according to the constitution, be entitled, by virtue of the same election by which they hold seats in the present congress, to seats in the next congress, which will be assembled after the d day of march, ; and further, that, whenever a vacancy shall happen in the senate or house of representatives, and an election to fill such vacancy, the person elected will not, according to the constitution, be entitled, by virtue of such election, to hold a seat beyond the time for which the senator or representative in whose stead such person shall have been so elected, would, if the vacancy had not happened, have been entitled to hold a seat. that it will be advisable for the congress to pass a law or laws for determining, agreeable to the provision in the first section of the second article of the constitution, the time when the electors shall, in the year which will terminate on the d day of march, , and so in every fourth year thereafter, be chosen, and the day on which they shall give their votes; for declaring what officer shall, in case of vacancy, both in the office of president and vice president, act as president; for assigning a public office where the lists, mentioned in the second paragraph of the first section in the second article of the constitution, shall in case of vacancy in the office of president of the senate, or his absence from the seat of government, be, in the mean time, deposited; and for directing the mode in which such lists shall be transmitted: whereupon, _resolved_, that the senate do agree to this report. monday, may . the senate proceeded to the third reading of the bill to prevent bringing goods, wares, and merchandises from the state of rhode island and providence plantations into the united states, and to authorize a demand of money from the said state, and, on motion, _ordered_, that this bill be recommitted. tuesday, may . mr. carroll, from the committee appointed april the th, to consider what provisions will be proper for congress to make, in the present session, respecting the state of rhode island, and to whom it was referred, to bring in a bill on that subject, reported several additional clauses to the bill to prevent bringing goods, wares, and merchandises, from the state of rhode island and providence plantations into the united states, and to authorize a demand of money from the said state; which report was agreed to as amendments to the bill. the senate proceeded to the third reading of the bill to prevent bringing goods, wares, and merchandises, from the state of rhode island and providence plantations into the united states, and to authorize a demand of money from the said state; and, on the question, "shall this bill pass?" the yeas and nays being required by one-fifth of the senators present, were: yeas.--messrs. bassett, carroll, dalton, ellsworth, johnson, johnston, izard, king, langdon, morris, reed, schuyler, and strong-- . nays.--messrs. butler, elmer, hawkins, henry, lee, maclay, walker, and wingate-- . so it was _resolved_, that this bill do pass, and that it be carried to the house of representatives for concurrence therein. tuesday, june . the following message was received from the president of the united states, and was read: _gentlemen of the senate, and house of representatives:_ having received official information of the accession of the state of rhode island and providence plantations to the constitution of the united states, i take the earliest opportunity of communicating the same to you, with my congratulations on this happy event, which unites, under the general government, all the states which were originally confederated; and have directed my secretary to lay before you a copy of the letter from the president of the convention of the state of rhode island to the president of the united states. g. washington. united states, june , . the senate then entered on executive business. the following message from the president of the united states, by his secretary, was read: united states, may , . _gentlemen of the senate:_ mr. de poiery served in the american army for several of the last years of the late war, as secretary to major general the marquis de lafayette, and might probably at the same time have obtained the commission of captain from congress, upon application to that body. at present, he is an officer in the french national guards, and solicits a brevet commission from the united states of america. i am authorized to add, that while the compliance will involve no expense on our part, it will be particularly grateful to that friend of america, the marquis de lafayette. i therefore nominate m. de poiery to be a captain by brevet. george washington. _ordered_, that the message lie for consideration. wednesday, june . _resolved_, that the senate will attend the funeral of colonel bland, late a member of the house of representatives of the united states, at five o'clock this afternoon.[ ] the senate then entered on executive business, and consented to the nomination of m. de poiery to be a captain by brevet, in the service of the united states. wednesday, august . the senate then entered on executive business, and the following message from the president of the united states was read:[ ] united states, august th, . _gentlemen of the senate:_ in consequence of the general principles agreed to by the senate in august, , the adjustment of the terms of a treaty is far advanced between the united states and the chiefs of the creek indians now in this city, in behalf of themselves and the whole creek nation. in preparing the articles of this treaty, the present arrangements of the trade with the creeks have caused much embarrassment. it seems to be well ascertained, that the trade is almost exclusively in the hands of a company of british merchants, who by agreement, make their importations of goods from england into the spanish ports. as the trade of the indians is a main means of their political management, it is therefore obvious, that the united states cannot possess any security for the performance of treaties with the creeks, while their trade is liable to be interrupted, or withheld, at the caprice of two foreign powers. hence it becomes an object of real importance to form new channels for the commerce of the creeks through the united states. but this operation will require time, as the present arrangements cannot be suddenly broken without the greatest violation of faith and morals. it therefore appears to be important to form a secret article of a treaty, similar to the one which accompanies this message. if the senate should require any further explanation, the secretary of war will attend them for that purpose. geo. washington. the president of the united states puts the following question for the consideration and advice of the senate: if it should be found essential to a treaty for the firm establishment of peace with the creek nation of indians, that an article to the following effect should be inserted therein, will such an article be proper? viz: secret article. the commerce necessary for the creek nation shall be carried on through the ports, and by the citizens of the united states, if substantial and effectual arrangements shall be made for that purpose by the united states, on or before the st day of august, one thousand seven hundred and ninety-two. in the mean time, the said commerce may be carried on through its present channels, and according to its present regulations. and whereas, the trade of the said creek nation is now carried wholly, or principally, through the territories of spain, and obstructions thereto, may happen by war or prohibitions of the spanish government: it is therefore agreed between the said parties, that in the event of such obstructions happening, it shall be lawful for such persons as ---- ---- shall designate, to introduce into, and transport through the territories of the united states to the country of the said creek nation, any quantity of goods, wares, and merchandise, not exceeding in value, in any one year, sixty thousand dollars, and that free from any duties or impositions whatsoever, but subject to such regulations for guarding against abuse, as the united states shall judge necessary; which privilege shall continue as long as such obstruction shall continue. geo. washington. united states, august th, . the senate proceeded to consider the message from the president of the united states of this day; whereupon, _resolved_, that the senate do advise and consent to the execution of the secret article referred to in the message, and that the blank in said article be filled with the words "president of the united states." wednesday, august . the senate then entered on executive business; and the following message was received and read, from the president of the united states: united states, august , . _gentlemen of the senate:_ although the treaty with the creeks may be regarded as the main foundation of the future peace and prosperity of the south-western frontier of the united states, yet, in order fully to effect so desirable an object, the treaties which have been entered into with the other tribes in that quarter must be faithfully performed on our part. during the last year, i laid before the senate a particular statement of the case of the cherokees. by a reference to that paper it will appear, that the united states formed a treaty with the cherokees in november, ; that the said cherokees thereby placed themselves under the protection of the united states, and had a boundary assigned them; that the white people settled on the frontiers had openly violated the said boundary, by intruding on the indian lands; that the united states, in congress assembled, did on the first day of september, , issue their proclamation, forbidding all such unwarrantable intrusions, and enjoined all those who had settled upon the hunting grounds of the cherokees to depart with their families and effects, without loss of time, as they would answer their disobedience to the injunctions and prohibitions expressed, at their peril. but information has been received that, notwithstanding the said treaty and proclamation, upwards of five hundred families have settled on the cherokee lands, exclusively of those settled between the fork of french broad and holstein rivers, mentioned in the said treaty. as the obstructions to a proper conduct on this matter have been removed since it was mentioned to the senate, on the d of august, , by the accession of north carolina to the present union, and the cessions of the land in question, i shall conceive myself bound to exert the powers intrusted to me by the constitution, in order to carry into faithful execution the treaty of hopewell, unless it shall be thought proper to attempt to arrange a new boundary with the cherokees, embracing the settlements, and compensating the cherokees for the cessions they shall make on the occasion. on this point, therefore, i state the following questions, and request the advice of the senate thereon: st. is it the judgment of the senate that overtures shall be made to the cherokees to arrange a new boundary, so as to embrace the settlements made by the white people since the treaty of hopewell, in november, ? d. if so, shall compensation, to the amount of ---- dollars annually, or of ---- dollars in gross, be made to the cherokees for the land they shall relinquish, holding the occupiers of the land accountable to the united states for its value? d. shall the united states stipulate solemnly to guarantee the new boundary which may be arranged? geo. washington. agreed, by unanimous consent, to proceed to the consideration of this message. whereupon, _resolved_, that the senate do advise and consent that the president of the united states do, at his discretion, cause the treaty concluded at hopewell with the cherokee indians, to be carried into execution, according to the terms thereof, or to enter into arrangements for such further cessions of territory, from the said cherokee indians, as the tranquillity and interest of the united states may require; provided the sum which may be stipulated to be paid to the cherokee indians do not exceed one thousand dollars annually; and provided, further, that no person who shall have taken possession of any lands within territory assigned to the said cherokee indians, by the said treaty of hopewell, shall be confirmed in any such possessions, but by a compliance with such terms as congress may hereafter prescribe. _resolved_, in case a new, or other boundary than that stipulated by the treaty of hopewell, shall be concluded with the cherokee indians, that the senate do advise and consent solemnly to guarantee the same. thursday, august . a message from the house of representatives informed the senate, that the house of representatives having finished the business before them are about to adjourn, agreeably to the vote of the two houses of congress on tuesday night. on motion, _resolved, unanimously_, that the thanks of the senate be given to the corporation of the city of new york for the elegant and convenient accommodations provided for congress, and that a copy of this resolve be enclosed in the following letter from the vice president: new york, august , . sir: it is with great pleasure, that, in obedience to an order of the senate of the united states, i have the honor to enclose their resolution of this date, which was unanimously agreed to; and, in behalf of the senate, i request that you will be pleased to communicate the same to the corporation of the city, and, at the same time, signify to them, that it is the wish of the senate that the corporation will permit such articles of furniture, &c. now in the city hall, as have been provided by congress, to remain for the use of that building. i am, sir, your most obedient humble servant, john adams, _vice president of the united states, and president of the senate._ to the mayor of the city of new york. the senate then entered on executive business, and proceeded to consider the message from the president of the united states, of the th of august, , communicating a treaty entered into with the chiefs of the creek nation of indians. and, on the question to advise and consent to the ratification of the said treaty, made with the creek nation, and referred to in the message of the president of the united states, of the th of august, ; the yeas and nays were required by one-fifth of the senators present, and were: yeas.--messrs. carroll, dalton, ellsworth, foster, hawkins, henry, johnson, johnston, izard, king, lee, paterson, read, schuyler, and stanton-- . nays.--messrs. butler, few, gunn, and walker-- . the senate resuming their legislative character, _ordered_, that the secretary acquaint the house of representatives that the senate having finished the legislative business before them, are about to adjourn, agreeably to the vote of both houses of congress of the th instant. and the vice president adjourned the senate accordingly, to meet on the first monday in december next. first congress.--second session. proceedings and debates in the house of representatives. monday, january . the following is a list of the members composing the house of representatives: new hampshire--nicholas gilman, samuel livermore, and abiel foster. massachusetts--fisher ames, elbridge gerry, benjamin goodhue, jonathan grout, george leonard, george partridge, george thatcher, and theodore sedgwick. connecticut--benjamin huntington, roger sherman, jonathan sturges, jonathan trumbull, and jeremiah wadsworth. new york--egbert benson, william floyd, john hathorn, jeremiah van rensselaer, john lawrence, and peter sylvester. new jersey--elias boudinot, lambert cadwalader, james schureman, and thomas sinnickson. pennsylvania--george clymer, thomas fitzsimons, thomas hartley, daniel heister, f. a. muhlenberg, _speaker_, peter muhlenberg, thomas scott, and henry wynkoop. delaware--john vining. maryland--daniel carroll, benjamin contee, george gale, joshua seney, william smith, and michael jenifer stone. virginia--theodorick bland, john brown, isaac coles, samuel griffin, richard bland lee, james madison, jun., andrew moore, john page, alexander white, and josiah parker. south carolina--edanus burke, daniel huger, william smith, thomas sumter, and thomas tudor tucker. georgia--abraham baldwin, james jackson, and george mathews. the speaker and twenty-five other members, viz: messrs. foster, gilman, livermore, ames, gerry, goodhue, grout, partridge, thatcher, sherman, benson, floyd, lawrence, p. muhlenberg, scott, seney, brown, coles, griffin, white, burke, huger, smith, (of s. c.,) tucker, and baldwin, appeared and took their seats; but not being a quorum, they adjourned. tuesday, january . mr. boudinot took his seat.--no quorum. wednesday, january . mr. schureman, mr. page, and mr. lee took their seats.--no quorum. thursday, january . jonathan sturgis and jeremiah wadsworth, from connecticut; jeremiah van rensselaer, from new york; daniel carroll, from maryland; and george mathews, from georgia, appearing and taking their seats, a quorum of the whole house was present; of which the senate were informed. the speaker laid before the house a letter from the president of the united states, of the th instant, requesting that when there shall be a sufficient number of the two houses of congress assembled to proceed to business, he may be informed of it; and, also, at what time and place it will be convenient for congress that he should meet them, in order to make some oral communications at the commencement of their session; which was read, and ordered to lie on the table. a message from the senate informed the house, that they had appointed a committee on their part, jointly with such committee as shall be appointed on the part of the house, to wait on the president of the united states, and notify him that a quorum of the two houses had assembled, and will be ready, in the senate chamber, at such time as he shall appoint, to receive any communications which he shall think proper to make. messrs. gilman, ames, and seney, were then appointed a committee on the part of the house for the purpose expressed in the message from the senate. it was then ordered, that a committee be appointed to examine the journal of the last session, and to report therefrom all such matters of business as were then depending and undetermined, and a committee was appointed, consisting of messrs. boudinot, sherman, and white. _resolved_, that two chaplains of different denominations be appointed to congress for the present session, one by each house, who shall interchange weekly. _ordered_, that the clerk of the house do carry the said resolution to the senate, and desire their concurrence. mr. gilman, from the committee appointed to wait on the president of the united states, pursuant to the order of this day, reported that they had, according to order, performed that service, and that the president was pleased to say he would attend to make his communications to both houses of congress to-morrow morning at o'clock. friday, january . henry wynkoop, from pennsylvania, appeared, and took his seat. the speaker and members present attended in the senate chamber, to receive the president of the united states, who addressed both houses. his address will be found in the proceedings of the senate. the speaker and the members of the house having returned from the senate, a copy of the president's speech was read, and committed to a committee of the whole house on to-morrow. the journal was then read by the clerk. mr. boudinot moved to correct the title by striking out all the words, after declaring it merely the journal of the house of representatives. after some further desultory conversation, the title of the journal was established by a vote of the house, as follows: _journal of the house of representatives of the united states._ at a session of the congress of united states, begun and held at the city of new york, on monday the th day of january, , being the second session of the first congress, held under the present constitution of government, for the united states, being the day appointed by law for the meeting of the present session. on the further reading of the minutes, mr. thatcher observed, that a call of the house which had taken place at the meeting was not entered on the journal. mr. page was sorry to find any gentleman insist upon the entry of a measure which was not completed. he was concerned, likewise, that he had not been here to answer to his name, but he was delayed seven days by head winds, and two days by extreme badness of the roads. under such circumstances, he thought the gentlemen who were so fortunate as to get here in time, deserved little more credit than those who were plunging at the risk of their lives through almost insuperable difficulties. he hoped it was not intended to stigmatize gentlemen who did not deserve it. mr. white.--if the absentees were from the remote states, there would be some indelicacy in ordering a call of the house at so early a period of the session, because there might be natural unavoidable impediments to prevent their punctual attendance, but he had observed, that the absentees were mostly from the neighboring states, connecticut, new york, new jersey, and pennsylvania; and some of the members had declared, they would not come until they were informed that there was a house. now, in order to make the journal a true transcript of what had really passed in the house, it was necessary to have this call inserted; for the motion was regularly made, seconded, and carried; the absentees were noted, and, after some time, they were called again, and those who were known to be sick, or on their way, were apologized for, and excused; here, indeed, the business terminated, and they were not ordered into the custody of the sergeant-at-arms. after these remarks, he concluded by saying, that he did not move to have it inserted on the journal, and was unconcerned about it. mr. lawrence hoped the call would not be entered on the journal, if it was intended to reproach the conduct of the absent members, for he was very well satisfied in his own mind, that few, if any, of them were guilty of neglecting their duty. mr. wadsworth likewise hoped the entry would not be made. he had left home a week ago, but had been detained by head winds. he dared to say that this would be found to be the case with respect to a number of other gentlemen; and as far as his knowledge went with relation to such as were absent, it was on necessary occasions. mr. partridge did not wish to stigmatize any gentleman by an entry of this kind on the journals. he meant simply that the fact should appear as it really happened in the house; however, as the business had not been completed, he would withdraw his second to the motion for having the entry made. mr. page said, no new stigma could be received by him or his colleague, (mr. lee.) by the entry on the journals, it appeared they were not here on monday or tuesday, but on wednesday it is said that john page and r. b. lee appeared, and took their seats; consequently, what he had said could not be construed to favor himself or his colleague, but it was generally for those who had not been able to get here so soon. the motion for entering on the journals the call of the house, was withdrawn. saturday, january . george clymer, from pennsylvania, appeared, and took his seat. _secretary of the treasury's report._ a letter from alexander hamilton, secretary of the treasury, was read, informing the house that, agreeably to their resolution of the st of september, he had prepared a plan for the support of the public credit, and that he was ready to report the same to this house, when they should be pleased to receive it. it was proposed that thursday next be assigned for this purpose. mr. gerry wished to add to the motion, that it should be made in writing. mr. boudinot hoped that the secretary of the treasury might be permitted to make his report in person, in order to answer such inquiries as the members might be disposed to make, for it was a justifiable surmise that gentlemen would not be able clearly to comprehend so intricate a subject without oral illustration. mr. clymer expressed some doubts with respect to the propriety of receiving oral communications from the head of such an important department. he was rather inclined to think that such communications ought to be in writing. mr. ames conceived it to be the duty of the house to obtain the best information on any subject; but on this very important one they ought to be particularly careful to get it from the highest source. the secretary of the treasury is a most important and responsible officer; the delicacy of his situation required every indulgence to be extended to him, that had a tendency to enable him to complete the arduous undertaking in which he was engaged. it would be a real misfortune that a salutary measure should be defeated for want of being understood; yet the most advantageous plans may miscarry in their passage through this house, by reason of their not being clearly comprehended. he hoped, therefore, that the financier would be authorized to make such communications and illustrations as he judged necessary; but he wished these communications to be in writing; in this shape they would obtain a degree of permanency favorable to the responsibility of the officer, while, at the same time, they would be less liable to be misunderstood. mr. benson observed, that the secretary of the treasury was directed, by a resolution of the last session, to prepare a plan for the support of public credit, and to report the same at this meeting. the point to be settled is whether it shall be done by an oral communication, or transmitted in writing? in the former order of the house, this point was untouched, and the secretary was left at his discretion to prepare himself for reporting in either way; consequently when we have fixed the time for receiving his report, he may make it in the manner for which he is prepared; but no doubt, this officer, actuated by motives of deference and respect, will conform to any rule the house may think proper to enjoin. mr. gerry conceived it would be necessary the secretary should be authorized, by a vote of the house, to give explanations to his plans. this, he was not expressly authorized to do by the vote of the last session, which confined him merely to prepare a plan for support of the public credit. would any gentleman on this floor suppose himself capable of comprehending and combining the parts of a general system, calculated to produce such a grand effect? in a plan for supporting public credit may be comprehended every species of finance. the secretary, under such an order, may propose an extension of your impost to entire new articles, an increase of some, and a diminution upon others. he may propose an introduction of a system of excise; with all these he may combine duties, stamps, and direct taxes. can the human mind retain, with any great degree of decision, objects so extensive and multifarious upon a mere oral communication? this consideration alone ought to be sufficient to induce gentlemen to agree to his proposition of making the report in writing; but his proposition extended still further, it went to give him a right to lay before them his explanations, if he thinks explanations necessary. on the question, the resolution for receiving the report of the secretary of the treasury in writing, was carried in the affirmative. _president's speech._ on motion, the house now resolved itself into a committee of the whole on the president's speech. mr. baldwin in the chair. mr. smith (of s. c.) proposed a resolution that an address be presented to the president, in answer to his speech to both houses, assuring him that this house will, without delay, proceed to take into their serious consideration the various and important matters recommended to their attention. mr. white thought this motion hardly sufficient; it was too general to warrant a select committee to draft that particular reply which he hoped the house was disposed to make to every part of the president's speech; he therefore begged the gentleman to withdraw it, and permit him to substitute one in its stead, which he read in his place. mr. boudinot thought the proposition just read by the honorable gentleman from virginia much superior to that proposed by his worthy friend from south carolina. it must have struck every gentleman that there were other matters contained in the speech deserving of notice, besides those recommended to their serious consideration. there was information of the recent accession of the important state of north carolina to the constitution of the united states. this event ought to be recognized in a particular manner, according to its importance; and he presumed to think that its importance was of the very first magnitude. a desultory conversation now took place on amending the original proposition in such a manner as to embrace generally the subjects of the speech; when, at length, it was amended to read as follows: _resolved_, as the sense of this committee, that an address be presented by the house to the president of the united states, in answer to his speech to both houses, with assurances that this house will, without delay, proceed to take into consideration the various and important matters recommended to their attention. whereupon messrs. smith, (of s. c.,) clymer, and lawrence, were appointed a committee to prepare the said address. monday, january . jonathan trumbull, from connecticut; john hathorn, from new york; and andrew moore, from virginia, appeared, and took their seats. _answer to the president's speech._ mr. smith, (of south carolina,) from the committee appointed for the purpose of preparing an address in answer to the president's speech, presented a report; which being read, mr. page moved to go into a committee of the whole on the same to-morrow, which was agreed to. tuesday, january . agreeably to the order of the day the house resolved itself into a committee of the whole on the address in answer to the president's speech to both houses. mr. baldwin being placed in the chair, the address was read as follows: _the address of the house of representatives to the president of the united states._ the representatives of the people of the united states have taken into consideration your speech to both houses of congress at the opening of the present session. we reciprocate your congratulations on the accession of north carolina; an event which, while it is a testimony of the increasing good-will towards the government of the union, cannot fail to give additional dignity and strength to the american republic, already rising in the estimation of the world in national character and respectability. the information that our measures of the last session have not proved dissatisfactory to our constituents, affords us much encouragement at this juncture, when we are resuming the arduous task of legislating for so extensive an empire. nothing can be more gratifying to the representatives of a free people than the reflection, that their labors are rewarded by the approbation of their fellow-citizens. under this impression, we shall make every exertion to realize their expectations, and to secure to them those blessings which providence has placed within their reach. still prompted by the same desire to promote their interests which then actuated us, we shall, in the present session, diligently and anxiously pursue those measures which shall appear to us conducive to that end. we concur with you in the sentiment that agriculture, commerce, and manufactures, are entitled to legislative protection, and that the promotion of science and literature will contribute to the security of a free government; in the progress of our deliberations, we shall not lose sight of objects so worthy of our regard. the various and weighty matters which you have judged necessary to recommend to our attention, appear to us essential to the tranquillity and welfare of the union, and claim our early and most serious consideration. we shall proceed, without delay, to bestow on them that calm discussion which their importance requires. we regret that the pacific arrangements pursued with regard to certain hostile tribes of indians, have not been attended with that success which we had reason to expect from them; we shall not hesitate to concur in such further measures as may best obviate any ill effects which might be apprehended from the failure of those negotiations. your approbation of the vote of this house at the last session, respecting the provision for the public creditors, is very acceptable to us: the proper mode of carrying that resolution into effect, being a subject in which the future character and happiness of these states are deeply involved, will be among the first to claim our attention. the prosperity of the united states is the primary object of all our deliberations, and we cherish the reflection, that every measure which we may adopt for its advancement, will not only receive your cheerful concurrence, but will at the same time derive from your co-operation additional efficacy in insuring to our fellow-citizens the blessings of a free, efficient, and equal government. fred'k a. muhlenberg, _speaker of the house of representatives_. mr. boudinot moved to strike out at the beginning of the third paragraph "the information," because the house were possessed of this knowledge by other means: they had, during the recess of congress, an opportunity of consulting their constituents, and could therefore say of their own motion, that the measures of the last session have not proved dissatisfactory. mr. clymer, as one of the committee appointed to prepare a report, had agreed to the address, but he did not think himself precluded from agreeing to what he supposed would be an amendment. the words appeared to him necessary, as they were strongly implied, inasmuch as the address was in answer to the speech of the president, which really contained such information. mr. smith (of south carolina) contended, that the house had no information with respect to the satisfaction their constituents experienced in the measures of the last session, except what was contained in the president's speech. he did not presume to deny, but every individual member of congress might have received information of this nature in private conversation with the people, but no official communication could possibly be got at; it was therefore necessary to recognize, in the address, the quarter from whence they drew that information; in this view he considered the words necessary, and hoped they would be retained. mr. boudinot meant to avoid the idea that it was from the executive alone they drew this information, when it was a notorious fact, perceptible to common observation. mr. lawrence said, the executive was the proper source to draw such information from, and he was very happy to learn it from so respectable a quarter; he therefore hoped it would be permitted to remain in the report. the question was now taken for striking out the words, and it passed in the negative. it was then moved to strike out, in the first line of the fourth paragraph, the word "gratifying" and insert "grateful." mr. wadsworth did not mean to call in question the right of gentlemen to amend the address in what manner they thought proper, but he would just remark, that the composition of two or three gentlemen, done with deliberation and coolness, generally had more elegance and pertinency, than the patchwork of a large assembly. he should therefore vote against every alteration that went to nothing more than to change the style; if gentlemen were disposed to contend for principle, he should listen to them with attention, and decide according to the best of his judgment, but he really conceived it to be a waste of time to discuss the propriety of two such terms as grateful and gratifying. mr. page hoped that gentlemen would proceed to amend the address in such a way as to give it the highest degree of perfection. he would rather have his feelings hurt, provided they could be said to be hurt by changing the language of his most favorite production, than that an address should go from this body with any incorrectness whatever. he hoped the house would always criticise upon, strike out and amend, whatever matter was before them with boldness and freedom. and he would observe to gentlemen, that the most refined and accurate writers were never ashamed to have it said of them, that they blotted out. mr. white said, that every gentleman had an undoubted right to take the sense of the house upon an amendment, and that it ought not to be considered as a reflection upon those who drew up the address. mr. wadsworth did not pretend to be a critic, but thought he understood the meaning of the words gratifying and grateful, and he conceived the difference to be too trifling to engage the attention of the house. he hoped that he had been as modest as a man could be in his observations, and was sorry to have drawn his worthy friend from virginia into any severities. mr. thatcher apprehend the meaning of these two words to be the same, and the reception of either was only important as it related to the measure or harmony of the period. now those gentlemen who are qualified to decide this point, might vote for the substitute; but for his part he was very well satisfied with it as it stood. mr. sturges wished the sentence struck out altogether, because he did not conceive the assertion to be true; for he did believe that there was something which could and ought to be more gratifying to the representatives of a free people than the reflection that their labors are rewarded by the approbation of their fellow-citizens; to be sure it was a grateful reflection, but there was one much more so, which was, that their labors had tended to advance the real interests of the people. if it is, as it ought to be, our highest ambition to promote the general interest, it must be most gratifying to us to learn that we have attained that desirable end. mr. page had only heard some expressions from the gentleman from connecticut (mr. wadsworth) which he imagined had a tendency to discourage the house from making necessary alterations; but he was convinced, from the known candor and impartiality of that gentleman, that he must not have fully comprehended his intentions, and therefore begged to apologize to him for any thing he might have said partaking of severity. the question was now put for striking out "gratifying" and inserting "grateful," and passed in the negative. the committee then agreed to the report, rose, and the chairman reported it without amendment. mr. speaker being seated in the chair, the address was read again and unanimously agreed to by the house. it was then moved that a committee be appointed to wait on the president of the united states, to learn from him at what time, and in what place he would receive this address. messrs. smith, (of south carolina,) clymer, and lawrence, were appointed the committee on this occasion. wednesday, january . benjamin huntington, from connecticut; lambert cadwalader, from new jersey; daniel heister, from pennsylvania, and william smith, from maryland, appeared and took their seats. mr. smith (of south carolina) reported that the president would be ready to receive their address to-morrow at o'clock. thursday, january . theodore sedgwick, from massachusetts, and thomas hartley, from pennsylvania, appeared and took their seats. the house then went and presented the address to the president, to which the president was pleased to make the following reply: _gentlemen:_ i receive, with pleasure, the assurances you give me, that you will diligently and anxiously pursue such measures as shall appear to you conducive to the interests of your constituents; and that an early and serious consideration will be given to the various and weighty matters recommended by me to your attention. i have fall confidence that your deliberations will continue to be directed by an enlightened and virtuous zeal for the happiness of our country. geo. washington. friday, january . james jackson, from georgia, appeared and took his seat. mr. hartley moved an adjournment, when mr. page rose and said, he wished to call the attention of the house, before they adjourned, to a subject which he thought of importance, and which ought no longer to be in the undecided state it had been in since the last session; it was this, whether the persons who had taken down and published the debates of the house, by the tacit consent of the members during the last session, and who had withdrawn from the seats they then held in the house, to the gallery, during this session, might not return to the same seats. he supposed that they had modestly withdrawn, on the supposition that the debate which took place just before the adjournment, showed that the sense of the members was against their sitting in the house; but the contrary was the case; that he knew their publications had given great satisfaction to many of the constituents of that house; that the house was applauded for its conduct on that occasion, both at home and abroad, and had been highly commended for it in some british publications; that he was anxious that the short-hand writers should resume their seats in the house, lest it might be insinuated by the jealous enemies of our government, that the house of representatives were more republican and indulgent the last session than this; that removing those writers to the gallery, was but a step towards removing them from the house, and that this suspicion would be increased by circumstances which, however innocent, nay proper in themselves, might be misunderstood and excite uneasiness. the doors of the gallery had been two days shut, the house had made a parade through the streets, and had displayed their eagle in their hall; that these circumstances, if followed by the exclusion of the short-hand writers, might spread an alarm which ought to be avoided; he therefore hoped that those gentlemen who had retired to the gallery might be informed that they might return to the seats they occupied in the last session--that he avoided making a regular motion to this effect, because he knew that some worthy members who wished to admit those writers, or any others, did not think their admission ought to be sanctioned by vote, and appear on the journals, lest that might sanction and authenticate erroneous publications; but that if he should not discover that the sense of the members present was in favor of the ideas he had expressed, that to-morrow he would bring forward a motion made by a member from south carolina, (mr. tucker,) last session, for that purpose, for he had no fears that a vote of the house to authorize the admission of such writers, would make the house answerable for their publications. mr. hartley withdrew his motion for adjournment, in order that the subject alluded to by the gentleman from virginia (mr. page) might be understood. mr. white said, he felt averse to enter into a positive resolution for the admission of any person to take down the debates, but wished them permitted to a convenient seat within the bar for the purpose of hearing with greater accuracy. but he feared that a vote of the house would give a sanction to the details, which the publications ought not to have. not that he thought them worse than similar publications in other countries; on the contrary, he thought them better, if he judged from what had fallen under his particular observation, and what he recollected to have from others. he did not wish a positive motion for the admission of short-hand writers, because gentlemen might object to a vote of the kind, and he should be very loth to discourage publications of the advantages of which he was well convinced; he knew they had given great satisfaction to the people of america, and it was a satisfaction of which he would not deprive them. although these publications had not given an exact and accurate detail of all that passed in congress, yet their information had been pretty full, and he believed the errors not very many; those that were made, he supposed to arise rather from haste or inadvertence, than from design. he was convinced of this, from the disposition the publishers had manifested to correct any errors that were pointed out, and the pains they sometimes took to ask gentlemen what were their particular expressions, when they either did not hear distinctly, or did not comprehend the speaker's meaning. he wished, therefore, the business might go on; but silently, as it had heretofore done, without the express approbation of the house. he was fully convinced, that neither the editor of the register, nor any other man, but the members of the house, had a right to a seat within those walls, without the consent of every member; but he thought this consent would be tacitly given if no gentleman opposed their introduction, and in this way he most heartily concurred with his colleague in agreeing to the admission of such persons as thought themselves qualified, and were inclined to take down and publish their debates and proceedings; he should be glad to see them in the seats they had last session, but he should object to the vote being entered on the journals of the house. mr. boudinot thought the mode proper to be pursued on this occasion, would be to give a discretionary power to the speaker to admit such persons as he thought proper. under such a regulation, short-hand writers might be admitted, without giving to their publications any degree of legislative authority. mr. thatcher hoped that it was not the intention of gentlemen to confine the business to one person only, because others might appear of equal capacity, and equally deserving of encouragement. mr. page said, he did not wish to confine the vote to any two or three writers, he cared not how many were admitted. it ought to be remembered, that he said, when this subject was before the house at the last session, that he saw no reason why mr. fenno should not be within the house as well as mr. lloyd, instead of being in the gallery. he had no objection to admitting any number of short-hand writers, provided they did not incommode the members. mr. smith, (of south carolina.)--i do not wish, mr. speaker, to exclude others from a convenient seat; but at the same time, i think those who were here before, have a pre-emption right to the best. i assure you, sir, i am sorry for the loss of them off the floor, because i think their publications had a salutary tendency. it has been said, that it was the design of the short-hand writers to give a partial representation of our proceedings. i believe, if they are not correctly given, it is owing to the hurry in which business of this kind is conducted, and i am confirmed in this opinion, by some errors which i have discovered in the publication of our proceedings. it was said that a committee was appointed to bring in a bill for the preservation and safe-keeping of the _accounts_ of the united states. i thought within myself that we were not so tenacious on this head, therefore suspected some mistake, and on consulting the journals i found that a committee had been appointed to bring in a bill for the safe-keeping and preservation of the _acts_ of the united states. the similarity of the letters in those two words, and the great abridgment short-hand writers are obliged to make for the sake of expedition, may have caused him to substitute the one for the other. in another place i found a greater blunder still; it was said, that the house had appointed a committee for the regulation of the _barbers_ of the united states; this struck me as a very gross misrepresentation, for i could hardly believe that the legislature of the union would, at so early a day, attempt to usurp an authority not vested in them by the constitution, and that, too, over a body of men who could at any time put an end to the tyranny with the edge of the razor; but on searching the minutes in this case, i found that a bill was brought in for the regulation of the _harbors_ of the united states. upon the whole, i believe, inaccurate as this work is, it has given to our constituents great satisfaction, and i should be glad to see our _argus_ restored to his former situation behind the speaker's chair, from whence he could both see and hear distinctly every thing that passed in the house. tuesday, january . the bill for enumerating the inhabitants of the united states was read a second time, and ordered to be committed to a committee of the whole. wednesday, january . james madison and josiah parker, from virginia, appeared and took their seats. thursday, january . george leonard, from massachusetts, peter sylvester, from new york, and thomas fitzsimons, from pennsylvania, appeared and took their seats. monday, january . _census of the union._ the house resolved into committee of the whole on the bill providing for the actual enumeration of the inhabitants of the united states, mr. baldwin in the chair. mr. madison observed, that they had now an opportunity of obtaining the most useful information for those who should hereafter be called upon to legislate for their country, if this bill was extended so as to embrace some other objects besides the bare enumeration of the inhabitants; it would enable them to adapt the public measures to the particular circumstances of the community. in order to know the various interests of the united states, it was necessary that the description of the several classes into which the community is divided should be accurately known. on this knowledge the legislature might proceed to make a proper provision for the agricultural, commercial, and manufacturing interests, but without it they could never make their provisions in due proportion. this kind of information, he observed, all legislatures had wished for; but this kind of information had never been obtained in any country. he wished, therefore, to avail himself of the present opportunity of accomplishing so valuable a purpose. if the plan was pursued in taking every future census, it would give them an opportunity of marking the progress of the society, and distinguishing the growth of every interest. this would furnish ground for many useful calculations, and at the same time answer the purpose of a check on the officers who were employed to make the enumeration; forasmuch as the aggregate number is divided into parts, any imposition might be discovered with proportionable ease. if these ideas meet the approbation of the house, he hoped they would pass over the schedule in the second clause of the bill, and he would endeavor to prepare something to accomplish this object. the committee hereupon agreed to pass over the part of the bill alluded to. mr. livermore moved to amend the last clause of the bill, by striking out all that related to the mode of compensating the marshal and his assistants, which were specified sums, proportioned to the service, and to substitute a provision, authorizing the marshal, or his assistants, to receive from every male white inhabitant above the age of twenty-one, five cents; and of the owner of every male slave, of like age, three cents; reserving, for his own use, four cents out of every five, and paying the other one cent to the marshal. he thought this was an equitable tax, agreeable to the spirit of the constitution; that it might be collected with safety and satisfaction; while, on the other hand, the mode proposed in the bill would be extremely inconvenient; it would draw a considerable sum out of the treasury, which their present situation did not enable them to spare. on the question this motion was lost. the committee then, after making some small amendments, rose and reported progress. thursday, january . _report of the secretary of the treasury._ mr. ames observed, that the subject of the secretary's report, on the means of promoting public credit, is the order for this day; but when i consider the circumstances under which this order was entered into, i am inclined to wish for an extension of the time. it will be recollected that this report was ordered to be printed, in order that the members might have it in their hands for consideration; when this was done, it was expected that the printing would be more expeditiously executed than the event has demonstrated it could be, of consequence our time for deliberation has been curtailed; and those gentlemen who were against so early a day before, will think the present rather premature. in order to accommodate them, i shall move you a longer day than otherwise i might be disposed to do; and if i am seconded, i move that the order of the day be postponed till next monday week. mr. jackson.--the report of the secretary of the treasury, mr. speaker, embraces subjects of the utmost magnitude, which ought not to be lightly taken up, or hastily concluded upon. it appears to me to contain two important objects, worthy of our most serious and indefatigable disquisition. the first is, that all idea of discrimination among the public creditors, as original holders and transferees, ought to be done away; and on this head, i must own to you, sir, that i formerly coincided in something like the same opinion, but circumstances have occurred, to make me almost a convert to the other. since this report has been read in this house, a spirit of havoc, speculation, and ruin, has arisen, and been cherished by people who had an access to the information the report contained, that would have made a _hastings_ blush to have been connected with, though long inured to preying on the vitals of his fellow-men. three vessels, sir, have sailed within a fortnight from this port, freighted for speculation; they are intended to purchase up the state and other securities in the hands of the uninformed, though honest citizens of north carolina, south carolina, and georgia. my soul rises indignant at the avaricious and moral turpitude which so vile a conduct displays. then, sir, as to the other object of the report, the assumption of the state debts by the general government, it is a question of delicacy as well as importance. the states ought to be consulted on this point, some of them may be against the measure, but surely it will be prudent in us to delay deciding upon a subject that may give umbrage to the community. for my part, before i decide, i should be glad to know the sentiments of the legislature of the state from which i come, and whether it would, in their opinion, be more conducive to the general and particular interests of these united states, than retaining them on their present footing. i trust i am not singular on this point; for gentlemen desirous of deciding on full information, will not only wish for the sense of the legislatures of the several states, but of every individual also. perhaps gentlemen of the neighboring states may think it proper to take up this business at an early day, because they can learn the desires of their constituents in a short time; but let those gentlemen consider for a moment, that the distant states ought to have an equal opportunity, and we cannot hear the voice of georgia in a week, nor a month. i should therefore be as much in the dark on monday week, as i am at present; i would wish, if the postponement is intended to answer any valuable purpose, that it should be extended to a longer period. i think the first monday in may would be sufficiently soon to enter upon it, and shall therefore move it. in this time, the state legislatures may have convened, and be able to give us their sentiments on a subject in which they are so deeply concerned. mr. boudinot agreed with the honorable gentleman who was last up, that this subject is a matter of the highest importance, and worthy of due deliberation; that speculation had risen to an alarming height; but this consideration bade him to be in favor of the only measure which could put a stop to the evil, that is, appreciating the public debt, till the evidences in the hands of the creditors came to their proper value. i also agree, said he, with the gentleman, that it would be a desirable thing to have the sense of the state legislatures, and every part of the community, because it would tend to elucidate the subject; but we should not be led by visionary pursuits to defer a business of this magnitude too long. i think we may go into a committee of the whole on monday week, without coming to a final determination; but if it is put off for a long period, it will cause a still greater fluctuation in the market, and increase those circumstances which the honorable gentleman laments as injurious to the peace and happiness of the community. we had better, therefore, look the business in the face, take it into consideration, and go through it deliberately; but, at the same time, as expeditiously as the novelty of our circumstances will admit. in this way also we may acquire information, because we obtain more from listening to each other's sentiments, than we can procure from any other source. but if, after all, gentlemen should find themselves unprepared on monday week, the business may be postponed to a further day. but i would by no means consent to lose sight of it for so long a period as from now till may. mr. jackson.--if the members of this body had known the plan in contemplation, and they had had an opportunity of consulting their constituents on the subject, then, i venture to say, this demon of speculation would not have extended its baleful influence over the remote parts of the union. it arose and seized on us by surprise, advantages are taken without any warning, and such as cannot but exasperate. but, sir, waiving all these reflections, let us recollect that the state of north carolina forms a part of this union; this measure is to affect her, as well as the states who are represented on this floor. shall we then proceed without them? her citizens are indubitably as much concerned in the event as others, and will you bind her in a case of this importance, when she has not a single representative within these walls? if no other consideration can induce gentlemen to defer this business, deference to a sister state who has so lately acceded to the union ought. but, in addition to this, i contend that the state legislatures ought to be consulted; and i declare myself, that i shall not know how to vote until i learn the sense of my constituents. if we consent to this proper and reasonable delay, our constituents will be prepared for our decisions, and a stop will be put to the speculation; or if any man burns his fingers, which i hope to god, with all the warmth of a feeling heart, they may, they will only have their own cupidity to blame. the people will then generally remain satisfied, under the general assurance, that congress will pursue proper measures for the support of public credit, and little or no evil can be apprehended; but much substantial good may arise from a delay of a few months. mr. sherman hoped the business would be conducted in such a way as to be concluded before the end of the present session. as to obtaining the sense of the state legislatures, he did not think that necessary. the people appointed the members of this house, and their situation enabled them to consult and judge better what was for the public good, than a number of distinct parts, void of relative information, and under the influence of local views. he supposed that congress contained all the information necessary to determine this or any other national question. as to the first observation of the gentleman from georgia, that speculations had been carried on to a great extent, he had only to observe, that this had been the case from the time when the public securities were first issued, and he supposed they would continue until the holders were satisfied with what was done to secure the payment. as to the state debts, it was a subject which he apprehended would not be ultimately decided, till the sense of the people is generally known; and on this occasion, it might be well to be acquainted with the sense of the state legislatures; he hoped, therefore, that it would be the case. but with regard to the foreign and domestic continental debts, he did not hesitate to say, it was proper for congress to take them into consideration as speedily as possible; for the sooner they are discussed, the sooner will the house make up there judgment thereon. he believed they were possessed of all the facts they could be possessed of, and therefore any great delay was improper. he was in favor of making the business the order of the day for monday week. mr. sedgwick.--i believe the house at present have not come to a conclusion in their own opinion, on the various circumstances which are necessary to be attended to in the report of the secretary of the treasury; therefore, i think some delay is necessary, but it should be as early a day as we could act upon it understandingly. the ardent expectations of the people on this subject want no other demonstration than the numerous body of citizens assembled within these walls.[ ] and while the public expectation is kept thus alive and in suspense, gentlemen cannot but suppose designs will be framed and prosecuted that may be injurious to the community. for, although i do not believe that speculation, to a certain degree, is baneful in its effects upon society, yet, when it is extended too far, it becomes a real evil, and requires the administration to divert or suppress it. if the capital employed in merchandise is taken from that branch of the public interest, and employed in speculations no way useful in increasing the labor of the community, such speculation would be pernicious. the employment of the time of merchants in this way, in addition to the employment of their capital, is a serious and alarming circumstance. a spirit of gambling is of such evil tendency, that every legislative endeavor should be made to suppress it. from these considerations, i take it, mr. speaker, that there are two things very evident; first, that the postponement should be so long as to enable us to enter upon the task with understanding; and that this pernicious temper, or spirit of speculation, should be counteracted at as early a period as can possibly take place. mr. gerry.--i am a friend to the postponement, mr. speaker, though not for so long a time as the gentleman from georgia proposes. it will be agreed, on all hands, that public credit is the main pillar on which this government is to stand; but so embarrassed are our finances, that they require both time and consideration for their due arrangement. with respect to the suppression of speculation, i do not conceive that possible, by either a longer or a shorter postponement. does any gentleman expect, while we have a public debt, to prevent speculation in our funds? if they do, they expect to accomplish what never was effected by any nation, nor, in my opinion, ever will be. but if they could accomplish it, they would do an injury to the community; for speculation gives a currency to property that would lie dormant; all public debts would hereafter be contracted on terms ruinous to the debtors. as to the policy of speculation, i doubt whether the speculation of foreigners in our funds is not rather advantageous than disadvantageous to the community. if we look abroad, and judge by comparative reasoning, we shall be led to believe that nations derive great advantages from being possessed of the money of foreigners; they not only endeavor to acquire it by direct, but also by indirect loans. during the late war, the dutch held or , , sterling, in the funds of great britain, and she was sensible of the benefit. the speculations of individuals have perhaps been of the greatest advantage to those who held public securities, by giving a circulation to the certificates. hence it has been thought that a public debt is a source of great emolument to a nation, by extending its capital, and enlarging the operations of productive industry. mr. jackson.--i know, sir, that there is, and will be, speculation in the funds of every nation possessed of public debt; but they are not such as the present report has given rise to, by the advantage those at the seat of government obtained of learning the plan contemplated by the principal of the treasury department, before others had heard a word thereof. if we had either received this report privately, or not sat in a large city, then, sir, none of these speculations would have arisen, because congress could have devised means of diffusing the information so generally as to prevent any of its ill effects. under these impressions, i am led to express my ardent wish to god, that we had been on the banks of the susquehanna or potomac, or at any place in the woods, and out of the neighborhood of a populous city; all my unsuspecting fellow-citizens might then have been warned of their danger, and guarded themselves against the machinations of the speculators. to some gentlemen, characters of this kind may appear to be of utility; but i, sir, view them in a different light; they are as rapacious wolves, seeking whom they may devour, and preying upon the misfortunes of their fellow-men, taking an undue advantage of their necessities. this, sir, is the sentiment of my heart, and i will always use its language. i say, sir, whatever might be the happy effects of speculation in other countries, it has had the most unhappy and pernicious effects in this. look at the gallant veteran, who nobly led your martial bands in the hour of extreme danger, whose patriotic soul acknowledged no other principle than that his life was the property of his country, and who evinced it by his repeated exposures to a vengeful enemy. see him deprived of those limbs, which he sacrificed in your service! and behold his virtuous and tender wife sustaining him and his children in a wilderness, lonely, exposed to the arms of savages, where he and his family have been driven by these useful class of citizens, these speculators, who have drained from him the pittance which a grateful country had afforded him, in reward for his bravery and toils, and a long catalogue of merits. nor is their insatiable avarice yet satisfied, while there remains a single class of citizens who retain the evidence of their demands upon the public; the state debts are to become an object for them to prey upon, until other citizens are driven into scenes of equal distress. is it not the duty of the house to check this spirit of devastation? it most assuredly is. if by the ill-timed promulgation of this report, we have laid the foundation for the calamity, ought we not to counteract it? this may be done by postponing the subject, until the sense of the state legislatures is obtained, with respect to their particular debts. then these men may send off other vessels to countermand their former orders; and, perhaps, we may yet save the distant inhabitants from being plundered by these harpies. monday, february . george gale, from maryland, appeared and took his seat. tuesday, february . theodore bland, from virginia, appeared and took his seat. wednesday, february . the engrossed bill for enumerating the inhabitants of the united states was read the third time, and then ordered to lie on the table. _rule of naturalization._ the house then went into a committee of the whole on the bill establishing a uniform rule of naturalization, mr. baldwin in the chair. the first clause enacted, that all free white persons, who have, or shall migrate into the united states, and shall give satisfactory proof, before a magistrate, by oath, that they intend to reside therein, and shall take an oath of allegiance, _and shall have resided in the united states for one whole year_, shall be entitled to all the rights of citizenship, except being capable of holding an office under the state or general government, which capacity they are to acquire after a residence of two years more. mr. tucker moved to strike out the words "and shall have resided within the united states for one whole year;" because he conceived it the policy of america to enable foreigners to hold lands, in their own right, in less than one year; he had no objection to extending the term, entitling them to hold an office under government, to three years. in short, the object of his motion was, to let aliens come in, take the oath, and hold lands without any residence at all. mr. hartley said, he had no doubt of the policy of admitting aliens to the rights of citizenship; but he thought some security for their fidelity and allegiance was requisite besides the bare oath; that is, he thought an actual residence of such a length of time as would give a man an opportunity of esteeming the government from knowing its intrinsic value, was essentially necessary to assure us of a man's becoming a citizen. the practice of almost every state in the union countenanced a regulation of this nature; and perhaps it was owing to a wish of this kind, that the states had consented to give this power to the general government. the terms of citizenship are made too cheap in some parts of the union; to say, that a man shall be admitted to all the privileges of a citizen, without any residence at all, is what can hardly be expected. the policy of the old nations of europe has drawn a line between citizens and aliens: that policy has existed to our knowledge ever since the foundation of the roman empire; experience has proved its propriety, or we should have found some nation deviating from a regulation inimical to its welfare. from this it may be inferred, that we ought not to grant this privilege on terms so easy as is moved by the gentleman from south carolina. if he had gone no further in his motion than to give aliens a right to purchase and hold lands, the objection would not have been so great; but if the words are stricken out that he has moved for, an alien will be entitled to join in the election of your officers at the first moment he puts his foot on shore in america, when it is impossible, from the nature of things, that he can be qualified to exercise such a talent; but if it was presumable that he was qualified by a knowledge of the candidates, yet we have no hold upon his attachment to the government. mr. sherman thought that the interest of the state where the emigrant intended to reside ought to be consulted, as well as the interests of the general government. he presumed it was intended by the convention who framed the constitution, that congress should have the power of naturalization, in order to prevent particular states receiving citizens, and forcing them upon others who would not have received them in any other manner. it was therefore meant to guard against an improper mode of naturalization, rather than foreigners should be received upon easier terms than those adopted by the several states. now, the regulation provided for in this bill, entitles all free white persons, which includes emigrants, and even those who are likely to become chargeable. it certainly never would be undertaken by congress to compel the states to receive and support this class of persons; it would therefore be necessary that some clause should be added to the bill to counteract such a general proposition. mr. page was of opinion, that the policy of european nations and states respecting naturalization, did not apply to the situation of the united states. bigotry and superstition, or a deep-rooted prejudice against the government, laws, religion, or manners of neighboring nations had a weight in that policy, which cannot exist here, where a more liberal system ought to prevail. i think, said he, we shall be inconsistent with ourselves, if, after boasting of having opened an asylum for the oppressed of all nations, and established a government which is the admiration of the world, we make the terms of admission to the full enjoyment of that asylum so hard as is now proposed. it is nothing to us, whether jews or roman catholics settle amongst us; whether subjects of kings, or citizens of free states wish to reside in the united states, they will find it their interest to be good citizens, and neither their religious nor political opinions can injure us, if we have good laws, well executed. mr. boudinot was against striking out the words, because he would rather choose to alter it from one year to two years, than strike out all that respected the capacity of an alien to be elected into any office. he conceived, that after a person was admitted to the rights of citizenship, he ought to have them full and complete, and not be divested of any part. mr. white noticed the inconvenience which would result from permitting an alien to all the rights of citizenship, merely upon his coming and taking an oath that he meant to reside in the united states. foreign merchants and captains of vessels might by this means evade the additional duties laid on foreign vessels; he thought, therefore, if the words were struck out, that another clause ought to be added, depriving persons of the privilege of citizenship, who left the country and staid abroad for a given length of time. mr. lawrence was of opinion, that congress had nothing more to do than point out the mode by which foreigners might become citizens. the constitution had expressly said how long they should reside among us before they were admitted to seats in the legislature; the propriety of annexing any additional qualifications is therefore much to be questioned. but this bill is not confined to the qualifications of the general government only, it descends to those of the state governments; it may be doubly questioned how far congress has the power to declare what residence shall entitle an alien to the right of a seat in the state legislatures. the reason of admitting foreigners to the rights of citizenship amongst us is the encouragement of emigration, as we have a large tract of country to people. now, he submitted to the sense of the committee, whether a term, so long as that prescribed in the bill, would not tend to restrain rather than encourage emigration? it has been said, that we ought not to admit them to vote at our elections. will they not have to pay taxes from the time they settle amongst us? and is it not a principle that taxation and representation ought to go hand and hand? shall we then restrain a man from having an agency in the disposal of his own money? it has been also observed, that persons might come and reside amongst us for some time, and then leave the country; he did not doubt that such might be the case, but it was not presumable, that after they had once taken an oath that they meant to reside here, and had become citizens, that they would return as soon as the occasion which required their absence had terminated. mr. madison.--when we are considering the advantages that may result from an easy mode of naturalization, we ought also to consider the cautions necessary to guard against abuses. it is no doubt very desirable that we should hold out as many inducements as possible for the worthy part of mankind to come and settle amongst us, and throw their fortunes into a common lot with ours. but why is this desirable? not merely to swell the catalogue of people. no, sir, it is to increase the wealth and strength of the community; and those who acquire the rights of citizenship, without adding to the strength or wealth of the community, are not the people we are in want of. and what is proposed by the amendment is, that they shall take nothing more than an oath of fidelity, and declare their intention to reside in the united states. under such terms, it was well observed by my colleague, aliens might acquire the right of citizenship, and return to the country from which they came, and evade the laws intended to encourage the commerce and industry of the real citizens and inhabitants of america, enjoying at the same time all the advantages of citizens and aliens. i should be exceedingly sorry, sir, that our rule of naturalization excluded a single person of good fame that really meant to incorporate himself into our society; on the other hand, i do not wish that any man should acquire the privilege, but such as would be a real addition to the wealth or strength of the united states. it may be a question of some nicety, how far we can make our law to admit an alien to the right of citizenship, step by step; but there is no doubt we may, and ought to require residence as an essential. mr. smith (of south carolina) thought some restraints proper, and that they would tend to raise the government in the opinion of good men, who are desirous of emigrating; as for the privilege of electing, or being elected, he conceived a man ought to be some time in the country before he could pretend to exercise it. what could he know of the government the moment he landed? little or nothing: how then could he ascertain who was a proper person to legislate or judge of the laws? certainly gentlemen would not pretend to bestow a privilege upon a man which he is incapable of using? mr. hartley said that the subject had employed his thoughts for some time, and that he had made up his mind in favor of requiring a term of residence. the experience of all nations, and the constitutions of most of the states induced the same opinion. an alien has no right to hold lands in any country, and if they are admitted to do it in this, we are authorized to annex to it such conditions as we think proper. if they are unreasonable, they may defeat the object we have in view, but they have no right to complain; yet, considering the circumstances of this country, he was favorable to easy terms of admission, because, he thought, it might be some inducement to foreigners to come and settle among us. it has been remarked, that we must admit those whom we call citizens to all the rights of citizenship at once. this opinion, he presumed, was not well founded; the practice of this country in no instance warrants it. the constitutions of the several states admit aliens to the privilege of citizenship, step by step; they generally require a residence for a certain time, before they are admitted to vote at elections; some of them annex to it the condition of payment of taxes and other qualifications; but he believed none of the states render a foreigner capable of being elected to serve in a legislative capacity, without a probation of some years. this kind of exception is also contemplated in the constitution of the united states. it is there required, that a person shall be so many years an inhabitant before he can be admitted to the trust of legislating for the society. he thought, therefore, that this part of the objection is not well supported. mr. white doubted whether the constitution authorized congress to say on what terms aliens or citizens should hold lands, in the respective states; the power vested by the constitution in congress, respecting the subject now before the house, extends to nothing more than making a uniform rule of naturalization. after a person has once become a citizen, the power of congress ceases to operate upon him; the rights and privileges of citizens in the several states belong to those states; but a citizen of one state is entitled to all the privileges and immunities of the citizens in the several states. now, if any state in the union should choose to prohibit its citizens from the privilege of holding real estates, without a residence of a greater number of years than should be thought proper by this house, they could do it, and no authority of the government, he apprehended, could enforce an obedience to a regulation not warranted by the constitution. so, in the case of elections, if the constitution of a particular state requires four, five, or six years residence, before a man is admitted to acquire a legislative capacity, with respect to the state government, he must remain there that length of time notwithstanding you may declare he shall be eligible after a residence of two years; all, therefore, that the house have to do on this subject, is to confine themselves to a uniform rule of naturalization, and not to a general definition of what constitutes the rights of citizenship in the several states. mr. jackson conceived the present subject to be of high importance to the respectability and character of the american name; the veneration he had for, and the attachment he had to, this country, made him extremely anxious to preserve its good fame from injury. he hoped to see the title of a citizen of america as highly venerated and respected as was that of a citizen of old rome. i am clearly of opinion, that rather than have the common class of vagrants, paupers, and other outcasts of europe, that we had better be as we are, and trust to the natural increase of our population for inhabitants. if the motion made by the gentleman from south carolina, should obtain, such people will find an easy admission indeed to the rights of citizenship; much too easy for the interests of the people of america. nay, sir, the terms required by the bill on the table are, in my mind, too easy. i think, before a man is admitted to enjoy the high and inestimable privileges of a citizen of america, that something more than a mere residence amongst us is necessary. i think he ought to pass some time in a state of probation, and at the end of the term, be able to bring testimonials of a proper and decent behavior; no man, who would be a credit to the community, could think such terms difficult or indelicate: if bad men should be dissatisfied on this account, and should decline to emigrate, the regulation will have a beneficial effect; for we had better keep such out of the country than admit them into it. i conceive, sir, that an amendment of this kind would be reasonable and proper; all the difficulty will be to determine how a proper certificate of good behavior should be obtained; i think it might be done by vesting the power in the grand jury or district courts to determine on the character of the man, as they should find it. mr. page.--i observed before, mr. chairman, that the european policy did not apply to the united states. i gave my reasons for it; they are such as have not been controverted, and i presume cannot be. with respect to the idea of excluding bad men from the rights of citizenship, i look upon it as impracticable; hard terms of admission may exclude good men, but will not keep out one of the wretches alluded to; they will come in various forms, and care little about citizenship. if we make use of the grand jury for this purpose, as proposed by the member from georgia, (mr. jackson,) we must, to complete the plan, authorize the grand jury to indict such emigrants as are unworthy to become citizens, and expel them. we must add an inquisition, and as it will not be sufficient for our views of having immaculate citizens, we should add censors, and banish the immoral from amongst us. indeed, sir, i fear, if we go on as is proposed now, in the infancy of our republic, we shall, in time, require a test of faith and politics of every person who shall come into these states. as to any precautions against admitting strangers to vote at elections, though i think them of less importance than some gentlemen, i object not to them; but contend, that every man, upon coming into the states, and taking the oath of allegiance to the government, and declaring his desire and intention of residing therein, ought to be enabled to purchase and hold lands, or we shall discourage many of the present inhabitants of europe from becoming inhabitants of the united states. mr. lawrence.--we are authorized to establish a uniform rule of naturalization; but what are the effects resulting from the admission of persons to citizenship, is another concern, and depends upon the constitutions and laws of the states now in operation. i have therefore an objection to that part of the bill which respects the qualification of the members of the state legislatures. but with respect to residence, before a man is admitted, i am of opinion with the gentleman from virginia, (mr. page,) at least it may be questioned, whether any good can result from it, to compensate for the evil it may effect by restraining emigration. the gentleman has said he would admit none but such as would add to the wealth or strength of the nation. every person who comes among us must do one or the other; if he brings money, or other property with him, he evidently increases the general mass of wealth, and if he brings an able body, his labor will be productive of national wealth, and an addition to our domestic strength. consequently, every person, rich or poor, must add to our wealth and strength, in a greater or less degree. mr. tucker had no object in making his motion, but to enable people to hold lands, who came from abroad to settle in the united states. he was otherwise satisfied with the clause, so far as it made residence a term of admission to the privilege of election; but there was a seeming contradiction in making them freeholders, and, at the same time, excluding them from the performance of duties annexed to that class of citizens. he thought the citizens had a right to require the performance of such duties, by every person who was eligible under their state laws and constitutions. now, if the motion could be modified in any way to accomplish his object with consistency, he would cheerfully acquiesce therein. he had no doubt the government had a right to make the admission to citizenship progressive; the constitution pointed out something of this kind, by the different ages and terms of residence they annexed to the right of holding a seat in this house and in the senate, and of being chosen president. no inhabitant can become president of the united states, unless he has been an inhabitant fourteen years; which plainly infers that he might have been a citizen for other purposes, with a shorter residence. but it goes still further, it enables congress to dictate the terms of citizenship to foreigners, and to prevent them from being admitted to the full exercise of the rights of citizenship by the general government; because it declares that no other than a natural-born citizen, or a citizen at the time of the adoption of this constitution, shall be eligible to the office of president. mr. smith (of s. c.) hoped the question would not be put to-day, as he wished to reflect further on the subject. a variety of observations had been made, which merited the serious attention of the committee; he would suggest another. an alien, in great britain, is not permitted to inherit, or hold real estate for his own use; consequently, a citizen of the united states, and a subject of great britain, would not be on an equal footing with respect to estates descended to them by inheritance. he thought this, and other weighty observations, would induce the house to postpone the subject till to-morrow. mr. sedgwick was against the indiscriminate admission of foreigners to the highest rights of human nature, upon terms so incompetent to secure the society from being overrun with the outcasts of europe; besides, the policy of settling the vacant territory by emigration is of a doubtful nature. he believed, in the united states, the human species might be multiplied by a more eligible and convenient mode, than what seemed to be contemplated by the motion now before the committee. he was well satisfied for himself, that there existed no absolute necessity of peopling it in this way; and, if there was no absolute necessity, he thought congress might use their discretion, and admit none but reputable and worthy characters; such only were fit for the society into which they were blended. the citizens of america preferred this country, because it is to be preferred; the like principle he wished might be held by every man who came from europe to reside here; but there was at least some grounds to fear the contrary; their sensations, impregnated with prejudices of education, acquired under monarchical and aristocratical governments, may deprive them of that zest for pure republicanism, which is necessary in order to taste its beneficence with that gratitude which we feel on the occasion. some kind of probation, as it has been termed, is absolutely requisite, to enable them to feel and be sensible of the blessing. without that probation, he should be sorry to see them exercise a right which we have gloriously struggled to attain. mr. burke thought it of importance to fill the country with useful men, such as farmers, mechanics, and manufacturers, and, therefore, would hold out every encouragement to them to emigrate to america. this class he would receive on liberal terms; and he was satisfied there would be room enough for them, and for their posterity, for five hundred years to come. there was another class of men, whom he did not think useful, and he did not care what impediments were thrown in their way; such as your european merchants, and factors of merchants, who come with a view of remaining so long as will enable them to acquire a fortune, and then they will leave the country, and carry off all their property with them. these people injure us more than they do us good, and, except in this last sentiment, i can compare them to nothing but leeches. they stick to us until they get their fill of our best blood, and then they fall off and leave us. i look upon the privilege of an american citizen to be an honorable one, and it ought not to be thrown away upon such people. there is another class also that i would interdict, that is, the convicts and criminals which they pour out of british jails. i wish sincerely some mode could be adopted to prevent the importation of such; but that, perhaps, is not in our power; the introduction of them ought to be considered as a high misdemeanor. mr. stone had no doubt but an alien might be admitted to the rights of citizenship, step by step; but he questioned the power of the house to say that a man shall be citizen for certain purposes, as it respects the individual state governments; he concluded that the laws and constitutions of the states, and the constitution and laws of the united states would trace out the steps by which they should acquire certain degrees of citizenship. congress may point out a uniform rule of naturalization; but cannot say what shall be the effect of that naturalization, as it respects the particular states. congress cannot say that foreigners, naturalized under a general law, shall be entitled to privileges which the states withhold from native citizens. mr. boudinot.--an exchange of sentiment on this floor i find always tends to throw more light on a subject than is generally to be obtained in any other way. but, as the subject is not yet fully elucidated, i shall be in favor of letting it remain undecided till to-morrow, for which reason, i move the committee to rise. this motion being put, the committee rose, and reported progress, after which the house adjourned. =tuesday=, february . _rule of naturalization._ the house again resolved itself into a committee of the whole on the naturalization bill, mr. baldwin in the chair. mr. tucker's motion was still before the committee. the committee being about to take a question on the motion, mr. page wished it delayed until he saw the gentleman from south carolina (mr. burke) in his place. mr. smith (of s. c.) said, he believed the object of his colleague was nothing more than to let foreigners, on easy terms, be admitted to hold lands; that this object could be better effected by introducing a clause to that purpose, and he had no doubt but it would be equally satisfactory to his colleague. mr. goodhue was against the motion, because it made our citizenship too cheap; after it was decided against, he would move to make the term two years, instead of one, before an alien should be entitled to the privilege of a citizen. mr. jackson.--it was observed yesterday, mr. chairman, that we could not modify or confine our terms of naturalization; that we could not admit an alien to the rights of citizenship progressively. i shall take the liberty of supporting the contrary doctrine, which i contend for, by a reference to the very accurate commentator on the laws of england, _justice blackstone_, i., .--"naturalization," says he, "cannot be performed but by an act of parliament; for by this an alien is put in exactly the same state as if he had been born in the king's legiance, _except_ only, that he is incapable, as well as a denizen, of being a member of the privy council, or parliament, holding offices, grants, &c. no bill for naturalization can be received in either house of parliament without such disabling clause in it." so that here we find, in that nation from which we derive most of our ideas on this subject, not only that citizens are made progressively, but that such a mode is absolutely necessary to be pursued in every act of parliament for the naturalization of foreigners. the same learned judge then goes on to show the attempts that were made to introduce a general system of naturalization, and how they failed; and that, to this day, even of their meritorious naval and military characters they make an exception, as to sitting in parliament, &c., and holding grants of land from the crown, within the kingdoms of great britain and ireland. after this, i presume, it will not be contended that we cannot found our law on the principle of a progressive and probational naturalization. mr. huntington.--the terms of the bill are too indefinite; they require the emigrant to take an oath that he intends to reside in the united states; but how long, and for what purpose, is not ascertained. he may determine to stay here until he accomplishes a particular object; and he may go into the most obscure part of the union to take this oath. the community certainly will not be benefited by such emigrants, and therefore they ought not to be admitted to the privileges of citizenship. the mode of naturalization, pointed out in this bill, is much too easy. in the state to which i belong, said he, no person could be naturalized, but by an act of the legislature; the same is the case in several of the other states, and in britain. he never knew a good inhabitant, who wished to be admitted to the rights of citizenship, but what found this mode sufficiently easy. the term that an emigrant should reside ought to be sufficiently long to give him an opportunity of acquiring a knowledge of the principles of the government, and of those who are most proper to administer it; otherwise he cannot exercise his privilege with any advantage to himself, or to the community. he therefore wished that the clause might be amended, in such a manner as to leave the naturalization of foreigners to the state legislatures. mr. burke.--unless some residence is required, it may be attended with confusion. in large cities, like boston, new-york, or philadelphia, an election may be carried by the votes of the body of sailors who happened to be in port. if the french fleet was here at such a time, and a spirit of party strongly excited, perhaps one of the candidates might get the crews of every ship in the fleet, and after qualifying them, by taking an oath of no definite meaning, carry them up to the hustings, and place himself or his friend on this floor, contrary to the voice of nine-tenths of the city. even a residence of one year is too short, it ought to be two, three, or four; but seven is too long. indeed, the whole of this bill seems somehow objectionable; there are some cases also omitted, which may show the necessity of recommitting it. the case of the children of american parents born abroad ought to be provided for, as was done in the case of english parents, in the th year of william iii. there are several other cases that ought to be likewise attended to. mr. jackson had an objection to any persons holding land in the united states without residence, and an intention of becoming a citizen; under such a regulation the whole western territory might be purchased up by the inhabitants of england, france, or other foreign nations; the landholders might combine and send out a large tenantry, and have thereby such an interference in the government as to overset the principles upon which it is established. it will be totally subversive of the old established doctrine that allegiance and land go together; a person owing no allegiance to a sovereign, ought not to hold lands under its protection, because he cannot be called upon and obliged to give that support which invasion or insurrection may render necessary. but with respect to residence and probation, before an alien is entitled to the privilege of voting at elections, i am very clear it is necessary; unless gentlemen mean to render the rank of an american citizen the maygame of the world. shall stories be told of our citizenship, such as i have read in the pennsylvania magazine, of the citizenship there: if my memory serves me right, the story runs, that at a contested election in philadelphia, when parties ran very high, and no stone was left unturned, on either side, to carry the election, most of the ships in the harbor were cleared of their crews, who, ranged under the masters and owners, came before a magistrate, took the oath of allegiance, and paid half-a-crown tax to the collector, as the constitution required, then went and voted, and decided the contest of the day. on the return of one of the vessels, whose crew had been employed in the affair of the election, they fell in with a shoal of porpoises off cape henlopen: "ha!" said one of them, "what merry company have we got here! i wonder where they are going so cheerfully?" "going," replied one of his comrades, "why, going to philadelphia, to be sure, to pay taxes and vote for assembly men!" i hope, mr. chairman, we have more respect for our situation as citizens, than to expose ourselves to the taunts and jeers of a deriding world, by making that situation too cheap. mr. burke said, no person ought to be permitted to inherit by descent in america, unless the same privilege was reciprocated by other nations; perhaps this point would be properly settled by treaty, and it would be well to introduce a provisionary clause to this effect. he was also in favor of admitting foreigners to hold lands on easy terms, if they would come to reside among us: and here he would take an opportunity of doing justice to some of them, as it might be supposed, from what had fallen from various parts of the house, that foreigners, educated under a monarchy, were inimical to the pure principles of republicanism. he was convinced that this doctrine was untrue, because he had often remarked, that foreigners made as good citizens of republics as the natives themselves. frenchmen, brought up under an absolute monarch, evinced their love of liberty in the late arduous struggle; many of them are now worthy citizens, who esteem and venerate the principles of our revolution. emigrants from england, ireland, and scotland, have not been behind any in the love of this country; so there is but little occasion for the jealousy which appears to be entertained for the preservation of the government. mr. tucker thought the bill must be recommitted; but he did not wish it done till the sense of the house was known on some of the various points that had presented themselves during the debate. with respect to the latter part of the first clause, he agreed with the gentleman from maryland, (mr. seney,) that we ought to provide a rule of naturalization, without attempting to define the particular privileges acquired thereby under the state governments. by the constitution of the united states, the electors of the house of representatives are to have the qualifications requisite for electors of the most numerous branch of the state legislatures. he presumed it was to be left to the discretion of the state constitutions, who were to be the electors of the state legislatures, and therefore the general government had no right to interfere therein. mr. hartley observed, that the subject was entirely new, and that the committee had no positive mode to enable them to decide; the practice of england, and the regulations of the several states, threw some light on the subject, but not sufficient to enable them to discover what plan of naturalization would be acceptable under a government like this. some gentlemen had objected to the bill, without attending to all its parts, for a remedy was therein provided for some of the inconveniences that have been suggested. it was said the bill ought to extend to the exclusion of those who had trespassed against the laws of foreign nations, or been convicted of a capital offence in any foreign kingdom; the last clause contains a proviso to that effect, and he had another clause ready to present, providing for the children of american citizens born out of the united states. mr. livermore thought the bill very imperfect, and that the committee ought to rise, and recommend it to be referred to a select committee; observing, that it was extremely difficult for fifty or sixty persons to arrange and make a system of a variety of motions and observations that had been brought forward. on the question being put, the committee rose and reported, and the bill was recommitted to a committee of ten.[ ] monday, february . _public credit._ the house then resolved itself into a committee of the whole on the state of the union. the report of the secretary of the treasury relative to a provision for the support of public credit was before them. mr. baldwin in the chair. after a silence of some minutes, mr. livermore asked, what part of the report it was expected that gentlemen should speak to? he wished some gentleman would select such parts as he conceived to be of importance, and submit them to the committee. mr. smith (of south carolina) was of opinion, that the committee had better consider the object of the report, in separate points of view, by which means they would be able to go through the investigation with a greater degree of accuracy than if they were left to range at large in the extensive field before them. the report contains objects so various, that it is possible gentlemen may agree, with respect to one or two, and yet differ on a third: from this consideration, he was induced to suggest the idea of single and independent resolutions, and had prepared the following: if the manner met the approbation of the committee, he would lay them on the table for consideration. they were to the following effect: _resolved_, that congress ought not adjourn, until they have adopted such measures as will make an adequate provision for the public debt. _resolved_, that in making such provision, no discrimination shall be made between the original holders of the evidences and the assignees thereof. _resolved_, that such of the debts of the individual states as have been incurred by them, during the late war, ought to be assumed by the general government, and like funds provided for them.[ ] _resolved_, that the arrearages of interest, on the continental and state debts, ought to be funded, and consolidated with the principal. _resolved_, that the interest to be paid thereon does not exceed ---- per cent. per annum, for the present. these motions were severally expressive of objects contemplated in the secretary's report. the last was upon a principle of modification, such as was held out in the plan for reloaning the debt. tuesday, february . _public credit: providing for the public debt: assuming the state debts: funding their certificates: report of general hamilton, secretary of the treasury._ [to the first object, that of providing for the public debt, there was no objection; to the assumption and the funding there was a strenuous opposition, and their adoption became one of the landmarks of party.] mr. jackson.--believe me, mr. chairman, i have as high a sense of the obligation we are under to the public creditors, and feel as much gratitude towards them as any man on this floor. i shall ever cheerfully acknowledge the duty we owe to our benefactors, and in a peculiar manner to those brave soldiers who, at the risk of their lives and fortunes, secured the independency of america. i have also the most sincere wishes for the re-establishment of public credit, and that upon firm and solid ground, and on principles which cannot be called in question; but there appears to me a previous question, which has not yet been brought forward; it is this, whether there exists an immediate necessity for funding the national debt in the permanent manner proposed? the high regard i have for the nature and circumstances of the foreign debt, induced me to let the first proposition pass without any animadversion. the vote which has been taken on that point will serve to show foreigners that we are concerned to preserve our credit with them by a rigid performance of our stipulations; trusting, at the same time, that our fellow-citizens cannot object to a distinction so just and proper in itself; for, notwithstanding what the domestic creditors may say, it is the money of foreigners that has, in a great measure, established our independence. it is doubtful with me whether a permanent funded debt is beneficial or not to any country; some of the first writers in the world, and who are most admired on account of the clearness of their perceptions, have thought otherwise, and declared that wherever funding systems have been adopted in a government, they tend more to injure posterity than they would injure the inhabitants to pay the whole debt at the time it was contracted. the principle, i apprehend, is demonstrated by experience; the first system of the kind that we have any account of originated in the state of florence in the year ; that government then owed about £ , sterling, and being unable to pay it, formed the principal into a funded debt, transferable with interest at five per cent. what is the situation of florence in consequence of this event? her ancient importance is annihilated. look at genoa and venice; they adopted a similar policy, and are the only two of the italian republics who can pretend to an independent existence, but their splendor is obscured; they have never been able since the period at which a funding system was introduced to raise themselves to that formidable state to which they were before. spain seems to have learned the practice from the italian republics, and she, by the anticipation of her immense revenue, has sunk her consequence beneath that level which her natural situation might have maintained. france is considerably enfeebled, and languishes under a heavy load of debt. england is a melancholy instance of the ruin attending such engagements. in the reign of king william, , the policy of the english parliament laid the foundation of what is called their national debt; but the sum was inconsiderable; it little exceeded £ , , sterling; the example then set has been closely followed. in , it amounted to £ , , sterling, during the wars in the reign of queen anne; since that, the capital of the debt of great britain amounted, in , to about £ , , sterling; and to such a pitch has the spirit of funding and borrowing been carried in that country, that in , their national debt had increased to £ , , sterling; a burthen which the most sanguine mind can never contemplate they will ever be relieved from. if future difficulties should involve that nation still further, what must be the consequence? the same effect must be produced that has taken place in other nations; it must either bring on a national bankruptcy, or annihilate her existence as an independent empire. hence i contend that a funding system in this country will be highly dangerous to the welfare of the republic; it may, for a moment, raise our credit, and increase our circulation by multiplying a new species of currency; but it must hereafter settle upon our posterity a burthen which they can neither bear nor relieve themselves from. it will establish a precedent in america that may, and in all probability will be pursued by the sovereign authority, until it brings upon us that ruin which it has never failed to bring, or is inevitably bringing, upon all the nations of the earth who have had the temerity to make the experiment. let us take warning by the errors of europe, and guard against the introduction of a system followed by calamities so universal. though our present debt be but a few millions, in the course of a single century it may be multiplied to an extent we dare not think of; for my part, i would rather have direct taxes imposed at once, which, in the course of a few years, would annihilate the principal of our debt. a few years' exertion in this way will save our posterity from a load of annual interest, amounting to the fifth, or perhaps the half of the sum we are now under engagements to pay. but why, mr. chairman, should we hasten on this business of funding? are our debts ascertained? the report of the secretary of the treasury proposes that we should not only fund the debts that are ascertained, but the unliquidated and unsettled debts due from the continent; nor does the plan stop here, it proposes that we should assume the payment of the state debts--debts to us totally unknown. many of the states, sir, have not yet ascertained what they owe; and if we do not know the amount of what we owe, or are to be indebted, shall we establish funds? shall we put our hands into the pockets of our constituents, and appropriate moneys for uses we are undetermined of? but more especially shall we do this, when, in doing it, it is indisputably certain, that the encumbrance will more than exceed all the benefits and conveniences? gentlemen may come forward, perhaps, and tell me, that funding the public debt will increase the circulating medium of the country, by means of its transferable quality; but this is denied by the best informed men. the funding of the debt will occasion enormous taxes for the payment of the interest. these taxes will bear heavily both on agriculture and commerce. it will be charging the active and industrious citizen, who pays his share of the taxes, to pay the indolent and idle creditor who receives them, to be spent and wasted in the course of the year, without any hope of a future reproduction; for the new capital which they acquire must have existed in the country before, and must have been employed, as all capitals are, in maintaining productive labor. thus the honest, hard-working part of the community will promote the ease and luxury of men of wealth; such a system may benefit large cities, like philadelphia and new york, but the remote parts of the continent will not feel the invigorating warmth of the american treasury; in the proportion that it benefits one, it will depress another. mr. smith, (of south carolina.)--the report of the secretary of the treasury contains a proposition for the establishment of a sinking fund. i wish the gentleman who brought forward the resolutions under consideration, had included that part of the system in his propositions, as it might have had a tendency to ease the mind of the honorable gentleman from georgia, and to have shown him that the public debt is not intended to acquire the permanency which he dreads. if our present debt cannot be paid off at once, all that can be done is to provide such funds for its gradual extinction as will morally ensure the object. the gentleman has contended, that public funding is a public injury. i agree with him that funding a debt to a very great amount may be very injurious; yet funding a small debt is beneficial. but whether this is, or is not a fact, is not the object of our present inquiry; we are not in a situation to determine whether we will or will not have a public debt. we have it already, and it appears to me to be a matter of necessity that we should appropriate some funds for the payment of the interest upon it. when we consider the nature of the contract, for what it is we owe the money, and our ability to comply, it follows, of consequence, that we must pay; it follows as close as the shadow follows its substance; or as close as the night follows the day. the only question that can come before us is, the mode of doing it. with respect to that part of our debt which is yet unascertained, i would just beg leave to observe, that it is not our fault that it remains in an unsettled state; neither is it the fault of those who have brought in their accounts and had them liquidated. hence, it appears to me extremely hard that we should refuse to provide for the payment of those to whom we acknowledge ourselves to be indebted, because there are others whose claims against us are not yet adjusted. the argument, therefore, which relates to this point, as well as that which relates to the western territory, will apply ten years hence as well as now, and form an eternal pretext for deferring the business. mr. fitzsimons said, that the circumstances of the foreign debt were such as left no choice in our power, according to the plan proposed by the secretary of the treasury; but we have it in our power, and are recommended to make a different arrangement with respect to the domestic debt. i stated, when i introduced the resolutions, that they were intended to bring the secretary's plan fairly before the committee. this resolution is differently worded on that account; but it may be observed, that the foreign creditors are not here to make a contract with the people of the united states, but the domestic creditors are; and we may hold out a modification to them for their acceptance. with respect to the means by which we shall be enabled to pay the interest and principal of our debt, this resolution has nothing to do, it leaves it to the consideration of the committee; and every gentleman will be perfectly at liberty to propose and support such as he supposes to be most suitable to our abilities. mr. livermore.--i do not clearly understand the import of the resolution before the committee. it seems worded rather in a doubtful manner. if it means, that funds ought to be appropriated for the payment of the interest and principal of the domestic debt, as the amount appears on the face of the certificates, i shall be totally against it; whether it pointedly carries that meaning or not, i cannot say. for my part, i consider the foreign and domestic debt to carry with them very material distinctions. the one is not like a debt, while the other has all the true qualities of one. however gentlemen may think on this subject, there is a great difference between the merits of that debt which was lent the united states in real coin, by disinterested persons, not concerned or benefited by the revolution, and at a low rate of interest, and those debts which have been accumulating upon the united states, at the rate of six per cent. interest, and which were not incurred for efficient money lent, but for depreciated paper, or services done at exorbitant rates, or for goods or provisions supplied at more than their real worth, by those who received all the benefits arising from our change of condition. it is within the knowledge of every gentleman, that a very considerable part of our domestic loan-office debt arose in this manner. it is well known that loan-office certificates were issued as a kind of circulating medium, when the united states were in such straits for cash, that they could not raise the necessary supplies in any other way. and it is very well known, that those who sold goods or provisions for this circulating medium, raised their prices from six to ten shillings at least. there is another observation i would beg leave to make. the prices at which our supplies were procured were such, even in hard money, that it might be said specie had depreciated, or, what amounted to the same thing, the commodities were sold for more than their current price; in many cases, half the price would now purchase the same thing. if so, there is as much reason that we should now consider these public securities in a depreciated state, as every holder of them has considered them from that time to this. there was a period at which they were considered of no greater value than three or four shillings in the pound; at this day they are not at more than eight or ten. if this, then, is the case, why should congress put it upon the same footing as the foreign debt, for which they received a hard dollar for every dollar they engaged to pay? could any possible wrong be done to those who hold the domestic debt, by estimating it at its current value? i do not speak of those only who have speculated in certificates. with respect to them, i do not see how a difference can be made. by the resolutions of congress, and from the face of the papers, it appears that they were transferable. it may be said, that there was some part of the domestic debt incurred by loans of hard money. there might be a small part lent in this way, but it was very small indeed, compared with the whole of the domestic debt. it is in the memory of every gentleman, that, before the beginning of the revolution, every state issued paper-money; it answered the exigencies of government in a considerable degree. the united states issued a currency of the same nature, which answered their purposes, except in some particular cases, and these were effected by loans of certain sums of hard money. if any distinctions are to be made among the domestic creditors, they ought to be made in favor of such only, and that in consequence of the origin of the debt; while the great mass given for the depreciated paper, or provisions sold at double prices, ought to be liquidated at its real value. i cannot think it injustice to reduce the interests on those debts. i should therefore be against passing this resolution, if it carries in it the idea of paying the principal and interest, according to the face of the paper. it is well known, that a large proportion of this domestic debt was incurred for paper-money lent. to be sure congress acknowledged its value equal to its name; but this was done on a principle of policy, in order to prevent the rapid depreciation which was taking place. but money lent in this depreciated and depreciating state, can hardly be said to be lent from a spirit of patriotism; it was a mere speculation in public securities. they hoped, by putting their money in the loan-office, though in a depreciated state, to receive hard money for it by and by. i flatter myself this prediction will never be effected. the secretary of the treasury has offered some alternatives to the creditors, out of which they may make their election; but it seems to me that they, all of them, propose a reduction in the principal and interest, that they may have an annuity of two-thirds, at six per centum, or for the whole sum at four per centum, or they may accept of the other terms. though this may make a reduction favorable to the public, yet this is not such a reduction as justice, in my opinion, requires; and as the resolution before the committee is intended to make way for the adoption of those principles, i shall vote against it, though i would rather it was passed over for the present, in order to see what is the sense of the house on making a specific provision for the payment of the debt. mr. page was glad that the question had been asked the mover of the propositions on the table what was the object of the resolution now under consideration, because it was liable to be misunderstood. but now, he presumed, the answer had satisfied every gentleman's mind. the gentleman from new hampshire was pleased to observe, that foreigners were not interested in the late revolution; that what they did was from such motives as demanded our gratitude; but our citizens were deeply interested, and, i believe, if they were never to get a farthing for what is owing to them for their services, they would be well paid; they have gained what they aimed at; they have secured their liberties and their lives; they will be satisfied that this house has pledged itself to pay to foreigners the generous loans they advanced us in the day of distress. if we were to make distinctions adverse to their interests, we could never expect from them a further favor in the future exigencies of this country. but we may also look with confidence at home for loans and services; on such occasions they will be supplied us on the principles of patriotism; the adoption of the first resolution was therefore politic and just, but the motion of my worthy colleague is not necessary. i feel for my fellow-citizens who have gloriously exerted themselves in the salvation of their country by their services in the field, or the supplies which they yielded, as much as any man can do. i acknowledge the debt of gratitude the community owes to those select citizens, and am willing to pay it as far as we possibly can; but they cannot, they will not complain of the deference we have shown to others, whose particular situation merited such regard at our hands. mr. scott.--i find myself obliged to consider the government of the united states in a very different situation, with respect to our foreign and domestic creditors. with respect to the foreign debt, we, the representatives of the united states, are vested with full power, and we are bound in duty to provide for the punctual payment according to the nature of the contract; but when i turn my eyes to the domestic debt, i find myself in a very different situation. i conceive myself a mere arbiter among the individuals of which the union is composed. a part of the people have a claim upon somebody. i think that claim is against the people at large, and we are not only to provide for the payment of that claim, if just, but to determine whether that claim is just or not. one part of the community applies to us to recover of the other what is due to it; the other says, the debt is too large, it is more than is justly due; you must try and determine between us, and say what part is just, and what is not. this brings clearly into my view the whole subject, as a thing within the power of congress to new model or modify, if we find that justice demands it; but we have no such authority with respect to the foreign debt. it is very clear to me, that we have the power to administer justice and impartiality among the members of the union; and this will lead me freely to assert, that we have not only authority, but it is our duty, if, on examination, we find that not more than half the sum that is claimed is justly claimed, to strike off the other half. mr. boudinot.--i am glad to see gentlemen bring into view principles on which to determine the great question before us; because, when they are once established, they will enable us to proceed with certainty to a decision. if the principles brought forward by the honorable gentleman from pennsylvania are just, his arguments are of great weight; but if, on consideration, we shall find that the principles are unjust, then i presume, however cogent the system of reasoning he has founded thereon, it will not prevail. he supposes we sit here as judges to determine the different claims of the creditors of the united states. if we are in that predicament, i agree we ought not to proceed but on full evidence and hearing of those claims. but i have never hitherto been led to consider congress in this light, nor can i now consider them in any such point of view. i consider the congress, who entered into these engagements, as complete representatives of the united states, and, in their political capacity, authorized, by the articles of confederation, to contract the debts for which our public faith is pledged; instead of being judges, or arbitrators, on this occasion, we are parties to the contract; nor is our case varied, by the dissolution of the old confederacy, because the existing constitution has expressly recognized the engagements made under the former. all debts contracted before the adoption of this constitution, shall be as valid against the united states, under this government, as under the confederation. now is the moment to establish the principle; if the constitution admits the borrowing of money, or paying for supplies, to be a contract, we are one of the parties to this contract, and all idea of being arbiters must vanish. we cannot judge in our own cause. the case will now stand clear; we owe a debt, contracted for a valuable consideration. the evidences of our debt are in the hands of our creditors, and we are called upon to discharge them; if we have it in our power, we ought to consider ourselves bound to do it, on every principle of honor, of justice, and of policy; but as we have not the ability to pay the whole off, nor, perhaps, the whole interest, we must endeavor to make such a modification as will enable us to satisfy every one. not that this modification shall take place without the consent of the creditors; this would be improper and unjust. each party is as much to be consulted on this occasion, as it was at the time of the first contract. if, then, congress is bound by the first contract, no gentleman can say we are judges. if we are parties, what would be the decision before a court of justice? the creditor produces my bond, by which i have bound myself to pay a hundred dollars; i cannot gainsay the fact; no man is allowed to plead that he has made a bad bargain, and that at other times, he could have purchased what he got of the creditor at half the sum he was forced to allow him. the inquiry with the judges is not, whether the debtor made a good bargain or not, but whether he did it fairly and voluntarily. we are in the same predicament if we fairly and honestly received the _quid pro quo_; we are bound, as parties to the honest performance of the contract, to discharge the debt; otherwise, what avails the clause in the constitution, declaring all debts contracted, and engagements entered into, before the adoption to be as valid against the present government as they were under the old confederation? the debt was _bona fide_ contracted; it was acknowledged by the united states; and the creditor received a certificate as to the evidence of his debt. it is immaterial to us what he did with it. i confess, if the original holder was to come forward, and say that he had been robbed of such evidence, we ought not to pay it until the point was ascertained in a court of justice. some observations were made to point out a difference between the foreign and domestic debt. i admit there is a distinction, and that in another instance, which has not been mentioned. his most christian majesty, when he first became our important ally, presented congress with a large sum of money; but this being insufficient to procure us the necessary supply of military stores, a loan was made us from the royal coffers of france. but this also being inadequate, we endeavored to obtain further aid from foreigners. the credit of the united states was so much impaired, as to hold out but little encouragement to individuals to trust us with their money. the french king added another mark of his distinguished attention: he guarantied the loan, and the money was obtained--obtained of the widow and fatherless; of persons whose all depended upon a punctual payment of the interest. on this point i could refer you to letters from our commissioners in europe, who beg that we may not put them on this business, unless we are certain that the united states will carefully provide for the payment of the interest; because, in case of failure, hundreds must perish for want. this is another motive why we should attend to the performance of our contracts; and i will repeat again, it is what we are called upon to do upon every principle of honor, justice, and policy. mr. lawrence.--the observations of the honorable gentleman from pennsylvania, (mr. scott,) if i rightly understand them, apply to the principal, and not the interest of the domestic debt. he imagines it to be too large; that is, that the individual who performed services, or rendered supplies during the late war, received evidences of rather too great nominal value; and that, at this period of time, it is necessary to investigate every particular claim, and judge whether the balances are respectively due or not. the gentleman has distinguished between the foreign and domestic creditor on this point; he supposes the foreign debt ought not to be re-examined, because the holders of it are unconnected with our government. they lent us money, and we are bound according to the precise terms of the contract. here i agree with him; but that there should be a solid distinction in justice between the foreign and domestic creditor is to me a singular thing. it was observed, that the citizens of america would be well paid for their loans, supplies, and services, by the benefits and profits arising to them by the revolution; but are we to sacrifice the claims of individuals of the community for the advantage of the whole? who are benefited by the revolution? every citizen. then every citizen is bound to contribute his equal part of the expenses attending the procurement. should those of our citizens who furnished the supplies, or loaned their money, be the only class who are injured? every citizen is bound to pay according to his ability, because every one has participated in the benefits: then the only question to ask is, whether this discrimination should be made to ascertain or new proportion the debt? this will lead me to inquire whether it is proper for us, after the resolution we passed at the last session, after the resolution we have just now passed, to scale the public debt anew? shall we say that the evidence carries on its face fraud and deception? i contend we shall not. why shall we liquidate a debt which is established upon a complete and final settlement? from the face of the evidences arises the demand, and that is the demand we are to make provision for. shall we go to our officers and soldiers who served during the late war, individually, and say that the balance struck to be due to them is an imposition on the public, when the government itself has determined that they were entitled to such particular reward? if, at the time those securities were given to them, government had paid them in money, would any gentleman now contend that their accounts ought to be reliquidated, and every individual called upon to refund a part of what he acquired in conformity to the laws of this country? certainly no gentleman would contend for such a measure. how is the nature of the case altered from the circumstances of our having been so unfortunate as to pay those worthy men with a certificate in lieu of the money which was due? the nature of the case, i conceive, is perfectly the same; and we are in duty bound to make a full compensation. the face of the paper expresses what that is, and it is to be our guide; the demand surely is not to be lessened. mr. jackson said there were, most surely, principles on which to ground a discrimination betwixt a foreign and domestic creditor; if there was no other, there was this, that the domestic creditors are those that are bound to pay the foreign creditors their demand; they ought, consequently, to do justice to others, by a punctual payment, before they require a discharge of their own claims. mr. ames did not conceive it material to inquire whether there be an equal obligation on the people of the united states to pay their foreign and domestic creditors, when they meant to pay both; but if it is intended to reduce the principal of either, it will lead us into a discussion of the principles on which such a measure ought to be founded. the honorable gentleman from pennsylvania (mr. scott) probably intends by the amendment to have a reduction of the debt; i have, said he, so much respect for the good sense and upright intentions of that honorable gentleman, that i will not impute to him unworthy motives; nor do i believe that he governs his conduct in private life by maxims which i suspect to be contained in the amendment now before us. i would not be understood, by any means, to convey an improper reflection upon the opinions of any one. the science of finance is new in america; a gentleman may therefore propose the worst of measures with the best intentions. what, let me inquire, will be the pernicious consequences resulting from the establishment of this doctrine? will it not be subversive of every principle on which public contracts are founded? the evidences of the debt, possessed by the creditors of the united states, cannot, in reason, justice, or policy, be considered in any other light than as public bonds, for the redemption and payment of which the property and labor of the whole people are pledged. the only just idea is, that when the public contract a debt with an individual, that it becomes personified, and that with respect to this contract, the powers of government shall never legislate. if this was not the case, it would destroy the effect it was intended to produce; no individual would be found willing to trust the government, if he supposed the government had the inclination and power, by virtue of a mere major vote, to set aside the terms of the engagement. if the public in such a case is, as i have said, personified, what conceivable difference is there, except in favor of the creditor, between the public and an individual in the case? if, then, the public contract is a solemn obligation upon us, we are bound to its true and faithful performance. what is the object for which men enter into society, but to secure their lives and property? what is the usual means of acquiring property between man and man? the best right to property is acquired by the consent of the last owner. if, then, an individual is possessed of property, in consequence of this right, how can government, founded on this social compact, pretend to exercise the right of divesting a man of that object which induced him to combine himself with the society? every gentleman may determine this question by his own feelings. shall it be said that this government, evidently established for the purpose of securing property, that, in its first act, it divested its citizens of seventy millions of money, which is justly due to the individuals who have contracted with government! i believe those gentlemen, who are apprehensive for the liberties and safety of their fellow-citizens, under the efficiency of the present constitution, will find real cause of alarm from the establishment of the present doctrine. i have heard, that in the east indies the stock of the labor and property of the empire is the property of the prince; that it is held at his will and pleasure; but this is a slavish doctrine, which i hope we are not prepared to adopt here. but i will not go further into a consideration of the idea of discrimination. i will ask, though, is this country ever to be in a settled and quiet state? must every transaction that took place, during the course of the last war, be ripped up? shall we never have done with the settlement and liquidation of our accounts? mr. livermore.--the arguments advanced by the gentlemen from massachusetts and new york prove too much, and therefore prove nothing. that the late congress had, at all times, from their first institution, the power to contract debts, for the benefit of the united states, cannot be denied; and that we are authorized to pay such debts, is equally certain. but this by no means contravenes the opinion of those gentlemen who think, that the whole may be properly considered and discharged at the rate which justice requires; for the same argument which is urged for the payment of the public securities at their nominal value, might be urged in favor of paying off the continental debts of credit, according to the sums expressed on the face of them. they were issued with as much confidence, and were received with as much reliance on the public faith, as any species of securities whatever; yet, it seems to be given up on all hands, that the owners of the old continental paper bills ought not to be paid according to their nominal value. perhaps it may be said, on comparing them with the loan-office certificates, that the united states had not the benefit of that money; but had they not the value of it? it will be answered, that when the money was first issued, congress had nearly the value for it; but afterwards the money greatly depreciated, and they had not the full value for it, yet the obligation to pay it is as explicit as words can make it. no advocate will be found for making all that money good. it has been thought proper, and it is just, that it should be reduced from its nominal value; if it is reduced on a scale of one hundred for one, the holders of it, i dare say, would cheerfully receive that sum. if the united states then had value for it, and if they had not value for the certificates, who can doubt of the justice of reliquidating, and duly ascertaining the public debt? all i contend for is this, that the present government pay the debts of the united states; but as the domestic part of the debt has been contracted in depreciated notes, that less interest should be paid upon it than six per cent. six per cent. was the usual interest upon the certificates when they were issued by congress; but if the possessor has received no part of this six per cent. until this time, that now the principal and interest be consolidated into one sum, hereafter to bear an interest of three or four per cent.; then those citizens, who now stand as creditors of the union, will find that part of their property has been the most productive of any, much more productive than the property of the citizens of the united states has generally been. those who lent their money to individuals before and during the late war, generally lost or suffered by the depreciation some three-quarters of the capital; nay, some thirty-nine fortieths. but is this the case of the domestic creditor of the united states? no! he will preserve his property, through the chaos of the revolution, and be put now in a more eligible situation than he was at the time when he loaned the money. the capital sum which he lent is now increased, and very rapidly increased, for six per cent. is a very large interest. he will now receive dollars for his , and putting that into the funds, at three or four per cent. he will find it more productive than any other method in which he could employ his money; for, i contend, that neither improved, nor unimproved lands, will give an interest near half of what the public creditor will receive. people who have held real property have sunk, with the taxes, and other losses, the greatest part of it; but the public creditor has let his run through the confusion of the revolution, and nevertheless gets it returned to him safe; and, so far from being impaired, that he has prodigiously accumulated, not only in a manner superior to the property of his fellow-citizens, but superior to the foreigner who lent his money at four per cent. justice and equity require, on the behalf of the community, that these people be content with reasonable profit. they ought not, therefore, to receive, on a funded debt, so much as six per cent.; whether three or four, or something between three and four, would be a proper sum, i shall not pretend to determine. but i consider it a proper question for this committee to consider, in justice to those who are to pay, as well as to those who are to receive; nor do i believe the domestic creditors would be dissatisfied with it, provided they were sure of receiving this annual interest; for their debts, on such a footing, would be better to them than if they were established on an extravagant plan that could never be effected, but which would be likely to throw the nation into confusion. every body has suffered more or less by the depreciation, but the public creditors very little, in regard to that part of their property which they had deposited in the hands of government: it is true, that it has slept; but it is now waked up to some purpose. mr. scott.--a great deal has been said on a great principle that must be attended to in some stage of this business; but gentlemen have been led into a more extensive discussion on the doctrine of discrimination than i had any idea of when i proposed the amendment. it has been urged by some of the gentlemen, that however just my principle is, that the legislature is in the quality of an arbitrator, yet we cannot adopt the amendment; others again have said, that the debt is a contract between the government and the individual, and that we being parties we cannot be judges; for it is contrary to the principles of the law, that we should be judges in our own cause. if, in national transactions like this, interesting to our citizens only, the government is to be supposed one party, and the individual the other party, i would ask the gentleman who is the judge? can two parties exist in a well organized government to dispute about property, and have no judge? the very idea must induce the gentleman to abandon his ground. it has been said, as the foundation of an opinion, that there is a great similitude between a certificate and a bond that is brought into court to demand payment upon; that no opposition can be made; that no plea can be entered; but i would wish to ask the gentleman who made the remark, as a professional man, whether the want of consideration would not be a good plea? in courts of equity, relief can be given against _prima facie_ evidence. mr. boudinot.--i am a friend to the discussion of every principle on which the great business before us may be supposed to turn, because i have a great desire that they should be settled on full information, that the public, as well as ourselves, may be satisfied with their propriety. this leads me again to notice the arguments which have been urged in favor of considering this body as judges or arbitrators between the public and the individuals who have claims upon the public. it must appear to the satisfaction of every unprejudiced mind, from the resolutions of the late congress, that they acknowledge themselves a party on behalf of the public, to every engagement they entered into for services, supplies, or moneys loaned. if then it is admitted that the late congress were parties to the contract, we must agree that our situation is precisely the same, because we stand in their shoes; and in my former argument i urged, if we are parties we cannot be judges. mr. jackson.--if there is no part of the debt of the united states unliquidated, besides the two millions which the gentleman alludes to, yet there is a very considerable part of what is in contemplation to fund, as continental debt, not at present ascertained. i mean the state debts. the secretary himself had no evidence before him, from which he could make a probable guess of the amount; if these are to be assumed by the general government, i presume the general government ought to be at liberty duly to ascertain them; and, therefore, the amendment proposed by the honorable gentleman from pennsylvania ought to be admitted. the honorable gentlemen who are in opposition, contend that no sort of discrimination ought to take place; yet from what they have let fall, on this occasion, i am led to believe that they favor that part of the report of the secretary which makes a discrimination, in fact, equal to a loss of one-third of the principal. what will hold good in one case ought to hold good in another, and a discrimination might take place upon the same principles, between those to whom the government was originally indebted, and who have never received satisfaction therefor, and those who had nothing to do with the government in the first transaction; but have merely speculated, and purchased up the evidence of an original debt. some gentlemen think, that the claims of this latter class merit a greater degree of attention, because by their actions, they seem to have evinced a greater degree of confidence in the government than those who sold them. but, sir, these men have had more information, they have been at the seat of government, and knew what was in contemplation before citizens of other parts of the union could be acquainted with it. there has been no kind of proportion of knowledge between the two classes--to use the expression of a british minister, the reciprocity has been all on one side. the people in this city are informed of all the motions of government; they have sent out their money, in swift sailing vessels, to purchase up the property of uninformed citizens in the remote parts of the union. were those citizens acquainted with our present deliberations, and assured of the intention of congress to provide for their just demands, they would be on an equal footing; they would not incline to throw away their property for considerations totally inadequate. such attempts at fraud would justify the government in interfering in the transactions between individuals, without a breach of the public faith; but this, sir, is not the object of the present motion, it only goes so far as to ascertain the amount of the debt, before we make provision for the payment; and this appears to me to be proper upon every principle of justice and discretion. mr. burke wished the question postponed till to-morrow, as it was a subject of such high importance. he moved the committee to rise; whereupon the committee rose, and reported progress. wednesday, february . _public credit._ the house again went into a committee of the whole, mr. baldwin in the chair, on the report of the secretary of the treasury. mr. scott's amendment being still under consideration. mr. scott.--some time was spent yesterday in the consideration of this subject; in my opinion, that time was not ill spent, nor would two or three days more be ill spent in discussing the question, for it involves in it the whole doctrine of discrimination and liquidation. if these two great points are once settled, the way will be clear and open before us to proceed to the discussion of the report: for if the principles of the report are good, i believe the plan itself is good. i believe, upon the principles which it holds forth, that it is wisely and judiciously drawn out, and does great honor to the officer who framed it. but it is incumbent on us to examine its principles before we adopt it; if they do not consist with equity and justice among the several inhabitants of the union, they must be rejected. now i doubt whether they consist with that equity and justice; i think there are others on this floor who have their doubts also. i wish, therefore, that we should coolly examine those principles, consult our judgment and understanding, and when we have collected all the information we can get from each other, we may determine; and when we have determined this, and the two grand points i have mentioned, our business will be easy. in support of the principles held out in the report, it is said that a solemn contract is entered into that cannot be violated; that the debt is ascertained and cannot be extinguished, but by the absolute payment of what it acknowledged to be due. now, i doubt whether the necessary concomitants of a contract to the amount mentioned on the face of the paper, really accompanies the public securities. let us revert back to the time that this contract was entered into. at the close of the war, at the commencement of issuing final settlements, there was a demand against the united states for real and essential services rendered; the claimants came forward, and asked something for their demand. congress having no money to give them, offered something; what? a certificate to a certain nominal amount; nay more, of a certain known value; the nominal amount was twenty shillings, the certain known value was two and sixpence. did the soldier accept of this offer? yes. on what principle did he accept it? he knew it was putting the capstone on the building which he had erected by his labor and cemented with his blood. i have done you services, said he, to the amount of twenty shillings, but you are poor and unable to pay me; i will accept now of your two and sixpence, and give you a discharge. thus, the soldier who had, through blood and slaughter, established the liberties of his country, crowned the whole by the sacrifice of pecuniary emoluments. his consent was given to the contract, and he received two and sixpence in the pound. now, if there is any other contract existing like this, i cannot see it. the soldier never received it, nor the officer who handed it out, never believed it to be worth more than two and sixpence in the pound. it was like compounding a debt by the consent of the creditor, and there an equal liquidation ought to take place. if this reasoning is right, we know the value at once of our paper currency; if it is not right, i would wish to know upon what principle of rationality, a rate can be established for the value of our certificates. mr. boudinot.--i am convinced that the principles laid down by the gentleman from pennsylvania, if true, ought to effect the final determination of this question; and if i was satisfied with them, i should clearly vote with him. if i was convinced that the certificates, at the time they were given out, were worth no more than _s._ _d._ in the pound, and that the creditors received them at that price, in full discharge of their demands, i should be very loath to raise them to so great a value; i would treat them precisely the same as continental money. i should think that the public did complete justice by complying with the terms of their contract; while this is a matter of dispute we can never agree in our determination. but if i can show that this is not the case, that he has not looked into the origin of this debt, so as to be well ascertained of the fact, i hope he will give up his opinion, and join with me in the conclusion. the debt of the united states is of four kinds; first, paper money; second, money lent; third, the pay to the army, including commutation, and the allowance for depreciation; and fourth, certificates, or evidences of the debts due from the united states to individuals, for supplies furnished, or services rendered at different periods of the last war. as to the bills of credit, i mentioned yesterday that they stand upon a different footing from the rest; because it was one of the parties who ascertained their depreciation, contrary to the opinion of the other, who had a desire of keeping them up to their nominal value. the money loaned to the united states, is a debt which we are bound to pay, on every principle of honor and justice; nor can it be said that the certificate given to the person who loaned the money, was given as a payment in discharge of the debt. with respect to the army, including commutation, i shall beg leave to read two or three resolutions of congress, to show that congress had a different idea of the certificates they gave to the officers and soldiers, in evidence of the balance of their account, which is still due. when they were first issued to the soldiers, congress guarded them from being transferable; but as the soldiers could get nothing for them in that form, upon representation, congress passed another resolution, by which they were made transferable, in order that the soldier might avail himself of the acknowledgment of congress in his favor; (the resolutions referred to were in may, , april, , and june, .) this recurrence to the resolutions of congress, under which the evidences of the debt were issued, sufficiently explodes a supposition, that they were understood to be worth no more than _s._ _d._ in the pound, at the time they were issued and received. from the personal knowledge i have of the transactions of that time, i can venture to say, that no idea of payment was ever entertained. they were, in fact, and were so considered, evidences of the liquidated and specific sums due to the creditors of the united states. the step which congress took for the benefit of the army, in making their certificates transferable, so far from accommodating them, would have proved a real injury. if the assignee had supposed himself to stand in a less eligible situation than the assignor, he never would have been induced to have given him the price which he did. if the soldier had received a certificate of twenty shillings, as only _s._ _d._ nobody would have inclined to have given him _s._ _d._ for it, because he could never expect to obtain a repayment of a greater sum, even in such money as congress should find convenient; upon every principle of assignation of debts or contracts, such an idea ought to be reprobated. mr. sedgwick.--i will express my idea on the point which the gentleman has made an inquiry respecting, in a few words. i said, that i conceived a delay of this business would endanger the peace of the union by diminishing the energy of the government, without which this constitution would be of no value. these are considerations which must appear weighty and important, if justly considered by the committee. a great and respectable body of our citizens are creditors of the united states. there are a variety of opinions prevailing respecting their claims, with respect to funding, discrimination, and interest. this diversity of opinion may probably irritate and produce heats and animosities, which may terminate in forming factions among the people. the state debts may produce a difference between the general and particular governments. if the matter is taken up as the business of a party, one may be pitted against the other, until, in the end, they disturb the public tranquillity, or sacrifice the general welfare to opposition and party spirit. besides this, the reputation, the credit of the government is at stake; the public expectation is alive to all the measures of government at the present moment. they expect that justice and equity will be administered as far as the abilities of our country extend; it lies with the legislature to realize this expectation. if congress pursue the present inquiry, and come to a determination without delay, the public sentiment will be brought to a point, and a general acquiescence may be expected; but if it is postponed to a future session, such may be the effect of faction and disappointment during the recess, that the probability is, that no one party will comprise a sufficient number to comprehend the majority of the whole. mr. jackson.--do not gentlemen think there is some danger on the other side? will there not be ground of uneasiness when the soldier and the meritorious citizen are called upon to pay the speculator more than ten times the amount they ever received from him for their securities? i believe, mr. chairman, there is more just reason of alarm on this than on the other side of the question. a gentleman from pennsylvania (mr. hartley) has noticed my arguments of yesterday, respecting a funding system. i beg leave to make a few observations in answer to him. he has said, that a funded debt is of great advantage to a nation, and has adduced the situation of england as a proof, founded on experience. but england is a solitary example, and the force of that example dwindles into nothing, if we examine into the real cause of her seeming affluence. she does not owe much of respectability to her national debt; she owes the most of it, at present, to the troubles of other countries, and when those have subsided, the bubble of her credit may blow up, as did the south sea project, for government stock can never be considered as cash. the stock employed in agriculture, commerce, and manufactures may, by great prospects of advantage, be diverted into the hands of brokers, for the purpose of speculating further in the funds; but no real addition will be made to the means of productive industry, nor was any thing of this kind contemplated at the time funding was first introduced into england. we learn from _blackstone_, that the reason for establishing a national debt, was in order to support a system of foreign politics, and to establish the new succession at the revolution; because it was deemed expedient to create a new interest, called the moneyed interest, in favor of the prince of orange, in opposition to the landed interest, which was supposed to be generally in favor of the king, who had abdicated the throne. i hope there is no such reason existing here; our government, i trust, is firmly established without the assistance of stock-jobbers. we ought to reign universally in the hearts of our fellow-citizens, on account of the salutary tendency of our measures to promote the general welfare, and not depend upon the support of a party, who have no other cause to esteem us but because we realize their golden dreams of unlooked-for success. mr. smith, (of south carolina.)--if we were about to contract debts for the purpose of funding them, the observations of the gentleman from georgia would apply; but we have already contracted them, and the only question is, shall we fund or pay? we must do one or the other. with respect to the remark of blackstone, he is writing of an enormous public debt when he mentions it as injurious, because he expressly says, that "a certain proportion of debt seems to be highly useful to a trading people; but what proportion that is it is not for me to determine." to be sure he adds afterwards, "that the present magnitude of our national encumbrances very far exceeds all calculations of commercial benefit, and is productive of the greatest inconveniences." and here i agree with him: but our public debt is not of such enormous magnitude as to counterbalance the good effects of throwing out such a quantity of a stable paper as will answer all the purposes of a circulating medium. mr. tucker.--i very much applaud the gentleman who made the motion now before the committee, because he has boldly come forward to combat an opinion so generally received in this place, that many thought it could not be controverted by any man possessed of common honesty; and because i am persuaded, that he has done it with an honorable intention of substituting real and substantial justice, in the place of that which he deems to be only the name and the shadow. although it is probable i differ with the gentleman who moved the amendment, i am inclined to think a discrimination of some kind is equitable and necessary. i believe it may be fairly said, that there are three classes of domestic creditors. the first, those who hold the continental bills of credit, which have been long out of circulation. second, those who hold certificates that were given for services or supplies, in their own names. and, third, those who hold certificates by purchase. i would wish to consider the obligation to each of these three classes, and whether, in equity, some kind of discrimination may not be made. on a strict and impartial examination, i am inclined to believe they will not appear to be the same. i will now turn to the examination of the first; namely, the holders of the continental bills of credit. the secretary of the treasury has reported in favor of some degree of provision being made for them. but, sir, what is the situation of the people who hold these bills? if i recollect rightly, the face of the bills declares, that the bearer shall be entitled to receive so many spanish milled dollars as is therein expressed. when these bills were issued, their real value was equal to their nominal value; no person refused, or wished to refuse, them as such; but, in a short time, too large a quantity were issued, and they began to depreciate. congress then recommended to the several states to pass tender-laws for the support of their credit. this was done by all the states; and they continued, in some of them, to pass as specie, under those laws, when they were depreciated twenty, thirty, and forty for one. those people, who received them in this state, suffered a very great loss by an act of the government, and many were ruined by the measure. when these bills had thus depreciated, congress passed a resolution, calling them in at forty for one. this ordinance of congress immediately reduced the claims of the first class of creditors by an arbitrary act of power. i do not pretend to say that the measure was unnecessary, but it was rigorous to deprive them of - ths of their claims. perhaps we cannot return to all the transactions of that time, because it would involve the government in a thousand difficulties, and produce, perhaps, greater evils than it would remedy. but there remains a claim upon our justice to pay the holders one dollar, at least, for forty. by the act of congress, which i alluded to before, these bills were thrown out of circulation, and have ever since lain in the hands of individuals. now, it appears to me, that, in equity, we ought to make all the reparation in our power. surely, then, we ought to allow interest on the principal from the time the bills were scaled, and forced out of circulation. these creditors, i take it, have a strong claim upon us; because the government has materially injured them, and the least satisfaction we can give them, is to put this part of the debt on the best footing we can; if we cannot do complete justice, let us approximate towards it as far as it is in our power. the second class of our creditors have obligations that are strong. it has been said, and generally passed current as an incontrovertible opinion, that those who transferred their certificates have conferred to the purchaser every claim they had upon the public. i mean, sir, to deny this assertion. there is a claim which they could not transfer, that is, a claim in equity;, they were entitled to the principal sum when they presented their accounts to the united states, and we ought, in justice, to have paid it at that time; but, perhaps, from our inability to do this, we were obliged to force on them a certificate of the balance, with a promise to pay them an annual interest thereon; but a promise to pay the interest does not exonerate us from paying the principal, as soon as we have it in our power. now, this is a claim which the original creditor, who parted with the evidence of his debt, did not transfer to the person to whom he sold it. the united states are under no contract with the purchaser who bought a loaned debt, to pay him any thing more than what the paper specifies, that is, to pay him the interest from year to year, but not the principal, until we find it convenient. then, with respect to the third class, if the residue of the revenue is insufficient to pay them the interest on their whole principal, i would give them certificates for such part as we are able to provide for the payment of the interest upon, at six per cent., to be paid in the same manner with the others. and i would give them other certificates for the remainder, on a like interest of six per cent., the payment whereof should commence at a fixed period, say three, four, or five years, as it might be found that the increasing resources of our country would, enable us to do; but i would undertake nothing now beyond our present ability. thursday, february . [mr. fitzsimons presented the address of the yearly (quaker) meeting of pennsylvania, new jersey, delaware, and the western parts of maryland and virginia, held at philadelphia, against the continuance of the african slave trade, and praying congress to remove that reproach from the land, and mr. lawrence presented an address to the same effect from the society of friends in new york.] mr. hartley moved to refer the address of the annual assembly of friends, held at philadelphia, to a committee; he thought it a mark of respect due to so numerous and respectable a part of the community. mr. white seconded the motion. mr. smith (of s. c.)--however respectable the petitioners may be, i hope gentlemen will consider that others equally respectable are opposed to the object which is aimed at, and are entitled to an opportunity of being heard before the question is determined. i flatter myself gentlemen will not press the point of commitment to-day, it being contrary to our usual mode of procedure. mr. fitzsimons.--if we were now to determine the final question, the observation of the gentleman from south carolina would apply; but, sir, the present question does not touch upon the merits of the case; it is merely to refer the memorial to a committee, to consider what is proper to be done; gentlemen, therefore, who do not mean to oppose the commitment to-morrow, may as well agree to it to-day, because it will tend to save the time of the house. mr. jackson wished to know why the second reading was to be contended for to-day, when it was diverting the attention of the members from the great object that was before the committee of the whole? is it because the feelings of the friends will be hurt to have their affair conducted in the usual course of business? gentlemen, who advocate the second reading to-day, should respect the feelings of the members who represent that part of the union which is principally affected by the measure. i believe, sir, that the latter class consists of as useful and as good citizens as the petitioners, men equally friends to the revolution, and equally susceptible of the refined sensations of humanity and benevolence. why, then, should such particular attention be paid to them, for bringing forward a business of questionable policy? if congress are disposed to interfere in the importation of slaves, they can take the subject up without advisers, because the constitution expressly mentions all the power they can exercise on the subject. mr. sherman suggested the idea of referring it to a committee, to consist of a member from each state, because several states had already made some regulations on this subject. the sooner the subject was taken up he thought it would be the better. mr. parker.--i hope, mr. speaker, the petition of these respectable people will be attended to with all the readiness the importance of its object demands; and i cannot help expressing the pleasure i feel in finding so considerable a part of the community attending to matters of such momentous concern to the future prosperity and happiness of the people of america. i think it my duty, as a citizen of the union, to espouse their cause; and it is incumbent upon every member of this house to sift the subject well, and ascertain what can be done to restrain a practice so nefarious. the constitution has authorized us to levy a tax upon the importation of such persons as the states shall authorize to be admitted. i would willingly go to that extent; and if any thing further can be devised to discountenance the trade, consistent with the terms of the constitution, i shall cheerfully give it my assent and support. mr. madison.--the gentleman from pennsylvania (mr. fitzsimons) has put this question on its proper ground; if gentlemen do not mean to oppose the commitment to-morrow, they may as well acquiesce in it to-day; and, i apprehend, gentlemen need not be alarmed at any measure it is likely congress will take; because they will recollect, that the constitution secures to the individual states the right of admitting, if they think proper, the importation of slaves into their own territory, for eighteen years yet unexpired; subject, however, to a tax, if congress are disposed to impose it, of not more than ten dollars on each person. the petition, if i mistake not, speaks of artifices used by self-interested persons to carry on this trade; and the petition from new york states a case that may require the consideration of congress. if any thing is within the federal authority to restrain such violation of the rights of nations and of mankind, as is supposed to be practised in some parts of the united states, it will certainly tend to the interest and honor of the community to attempt a remedy, and is a proper subject for our discussion. it may be, that foreigners take the advantage of the liberty afforded them by the american trade, to employ our shipping in the slave trade between africa and the west indies, when they are restrained from employing their own by restrictive laws of their nation. if this is the case, is there any person of humanity that would not wish to prevent them? another consideration why we should commit the petition is, that we may give no ground of alarm by a serious opposition, as if we were about to take measures that were unconstitutional. mr. _stone_ feared that if congress took any measures indicative of an intention to interfere with the kind of property alluded to, it would sink it in value very considerably, and might be injurious to a great number of the citizens, particularly in the southern states. he thought the subject was of general concern, and that the petitioners had no more right to interfere with it than any other members of the community. it was an unfortunate circumstance, that it was the disposition of religious sects to imagine they understood the rights of human nature better than all the world besides; and that they would, in consequence, be meddling with concerns in which they had nothing to do. as the petition relates to a subject of a general nature, it ought to lie on the table as information. he would never consent to refer petitions, unless the petitioners were exclusively interested. suppose there was a petition to come before us from a society, praying us to be honest in our transactions, or that we should administer the constitution according to its intent, what would you do with a petition of this kind? certainly it would remain on your table. he would, however, not have it supposed that the people had not a right to advise and give their opinion upon public measures; but he would not be influenced by that advice or opinion to take up a subject sooner than the convenience of other business would admit. unless he changed his sentiments, he would oppose the commitment. mr. burke thought gentlemen were paying attention to what did not deserve it. the men in the gallery had come here to meddle in a business with which they have nothing to do; they were volunteering in the cause of others, who neither expected nor desired it. he had a respect for the body of quakers, but, nevertheless, he did not believe they had more virtue or religion than other people, nor perhaps so much, if they were examined to the bottom, notwithstanding their outward pretences. if their petition is to be noticed, congress ought to wait till counter applications were made, and then they might have the subject more fairly before them. the rights of the southern states ought not to be threatened, and their property endangered, to please people who would be unaffected by the consequences. mr. hartley thought the memorialists did not deserve to be aspersed for their conduct, if influenced by motives of benignity. they solicited the legislature of the union, to prevent, as far as is in their power, the increase of a licentious traffic; nor do they merit censure, because their behavior has the appearance of more morality than other people. congress ought not to refuse to hear the applications of their fellow-citizens, while those applications contain nothing unconstitutional or offensive. what is the object of the address before us? it is intended to bring before this house a subject of great importance to the cause of humanity; there are certain facts to be inquired into, and the memorialists are ready to give all the information in their power; they are waiting, at a great distance from their homes, and wish to return; if, then, it will be proper to commit the petition to-morrow, it will be equally proper to-day, for it is conformable to our practice; besides, it will tend to their conveniency. mr. lawrence.--the gentleman from south carolina says, the petitioners are of a society not known in the laws or constitution. sir, in all our acts, as well as in the constitution, we have noticed this society; or, why is it that we admit them to affirm in cases where others are called upon to swear? if we pay this attention to them, in one instance, what good reason is there for contemning them in another? i think the gentleman from maryland (mr. stone) carries his apprehensions too far, when he fears that negro property will fall in value, by the suppression of the slave trade; not that i suppose it immediately in the power of congress to abolish a traffic which is a disgrace to human nature; but it appears to me, that, if the importation was crushed, the value of a slave would be increased instead of diminished; however, considerations of this kind have nothing to do with the present question. gentlemen may acquiesce in the commitment of the memorial, without pledging themselves to support its object. mr. jackson.--i differ much in opinion with the gentleman last up. i apprehend, if through the interference of the general government the slave trade was abolished, it would evince to the people a disposition towards a total emancipation, and they would hold their property in jeopardy. any extraordinary attention of congress to this petition may have, in some degree, a similar effect. i would beg to ask those, then, who are desirous of freeing the negroes, if they have funds sufficient to pay for them? if they have, they may come forward on that business with some propriety; but, if they have not, they should keep themselves quiet, and not interfere with a business in which they are not interested. they may as well come forward and solicit congress to interdict the west india trade, because it is injurious to the morals of mankind; from thence we import rum, which has a debasing influence upon the consumer. but, sir, is the whole morality of the united states confined to the quakers? are they the only people whose feelings are to be consulted on this occasion? is it to them we owe our present happiness? was it they who formed the constitution? did they, by their arms or contributions, establish our independence? i believe they were generally opposed to that measure: why, then, on their application, should we injure men who, at the risk of their lives and fortunes, secured to the community their liberty and property? if congress pay any uncommon degree of attention to their petition, it will furnish just ground of alarm to the southern states. but why do these men set themselves up in such a particular manner against slavery? do they understand the rights of mankind, and the disposition of providence, better than others? if they were to consult that book, which claims our regard, they will find that slavery is not only allowed but commended. their saviour, who possessed more benevolence and commiseration than they pretend to, has allowed of it: and if they fully examine the subject, they will find that slavery has been no novel doctrine since the days of cain; but be these things as they may, i hope the house will order the petition to lie on the table, in order to prevent an alarm to our southern brethren. mr. sedgwick.--if it was a serious question whether the memorial should be committed or not, i would not urge it at this time; but that cannot be a question for a moment, if we consider our relative situation with the people. a number of men, who are certainly very respectable, and of whom, as a society, it may be said with truth, that they conform their moral conduct to their religious tenets, as much as any people in the whole community, come forward and tell you, that you may effect two objects by the exercise of a constitutional authority, which will give great satisfaction. on the one hand, you may acquire revenue, and on the other, restrain a practice productive of great evil. now, setting aside the religious motives which influence their application, have they not a right as citizens to give their opinion of public measures? for my part, i do not apprehend that any state, or any considerable number of individuals in any state, will be seriously alarmed at the commitment of the petition, from a fear that congress intend to exercise an unconstitutional authority, in order to violate their rights. i believe there is not a wish of the kind entertained by any member of this body; how can gentlemen hesitate, then, to pay that respect to a memorial which it is entitled to, according to the ordinary mode of procedure in business? why shall we defer doing that till to-morrow, which we can do to-day; for the result, i apprehend, will be the same in either case. mr. smith, (of south carolina.)--the question, i apprehend, is whether we will take the petition up for a second reading, and not whether it shall be committed? now, i oppose this, because it is contrary to our usual practice, and does not allow gentlemen time to consider of the merits of the prayer. perhaps some gentlemen may think it improper to commit it to so large a committee as has been mentioned; a variety of causes may be supposed to show that such a hasty decision is improper; perhaps the prayer of it is improper. if i understood it right on its first reading, though to be sure i did not comprehend perfectly all that the petition contained, it prays that we should take measures for the abolition of the slave trade. this is desiring an unconstitutional act, because the constitution secures that trade to the states, independent of congressional restrictions, for a term of twenty-one years. if, therefore, it prays for a violation of constitutional rights, it ought to be rejected as an attempt upon the virtue and patriotism of the house. mr. boudinot.--it has been said, that the quakers have no right to interfere in this business. i am surprised to hear this doctrine advanced, after it has been so lately contended and settled, that the people have a right to assemble and petition for redress of grievances. it is not because the petition comes from the society of quakers that i am in favor of the commitment, but because it comes from citizens of the united states who are equally concerned in the welfare and happiness of their country with others. there certainly is no foundation for the apprehensions which seem to prevail in gentlemen's minds. if the petitioners were so uninformed as to suppose that congress could be guilty of a violation of the constitution, yet i trust we know our duty better than to be led astray by an application from any man or set of men whatever. i do not consider the merits of the main question to be before us; it will be time enough to give our opinions upon that when the committee have reported. if it is in our power, by recommendation, or any other way, to put a stop to the slave trade in america, i do not doubt of its policy; but how far the constitution will authorize us to attempt to depress it, will be a question well worthy of our consideration. mr. sherman observed, that the petitioners from new york stated, that they had applied to the legislature of that state to prohibit certain practices which they conceived to be improper, and which tended to injure the well-being of the community; that the legislature had considered the application, but had applied no remedy, because they supposed that power was exclusively vested in the general government under the constitution of the united states; it would, therefore, be proper to commit that petition, in order to ascertain what are the powers of the general government in the case. mr. gerry thought gentlemen were out of order in entering upon the merits of the main question at this time, when they were considering the expediency of committing the petition. he should, therefore, not follow them further in that track than barely to observe, that it was the right of the citizens to apply for redress, in every case in which they conceived themselves aggrieved; and it was the duty of congress to afford redress as far as in their power. that their southern brethren had been betrayed into the slave trade by the first settlers, was to be lamented; they were not to be reflected on for not viewing this subject in a different light, the prejudice of education is eradicated with difficulty; but he thought nothing would excuse the general government for not exerting itself to prevent, as far as they constitutionally could, the evils resulting from such enormities as were alluded to by the petitioners; and the same considerations induced him highly to commend the part the society of friends had taken; it was the cause of humanity they had interested themselves in, and he wished, with them, to see measures pursued by every nation, to wipe off the indelible stain which the slave trade had brought upon all who were concerned in it. mr. madison thought the question before the committee was no otherwise important than as gentlemen made it so by their serious opposition. had they permitted the commitment of the memorial, as a matter of course, no notice would have been taken of it out of doors; it could never have been blown up into a decision of the question respecting the discouragement of the african slave-trade, nor alarm the owners with an apprehension that the general government were about to abolish slavery in all the states; such things are not contemplated by any gentleman; but they excite alarm by their extended objections to committing the memorials. gentlemen may vote for the commitment of the petition without any intention of supporting the prayer of it. mr. white would not have seconded the motion, if he had thought it would have brought on a lengthy debate. he conceived that a business of this kind ought to be decided without much discussion; it had constantly been the practice of the house, and he did not suppose there was any reason for a deviation. mr. page said, if the memorial had been presented by any individual, instead of the respectable body from whom it emanated, he should have voted in favor of a commitment, because it was the duty of the legislature to attend to subjects brought before them by their constituents; if, upon inquiry, it was discovered to be improper to comply with the prayer of the petitioners, he would say so, and they would be satisfied. mr. stone thought the business ought to be left to take its usual course; by the rules of the house, it was expressly declared that petitions, memorials, and other papers, addressed to the house should not be debated or decided on the day they were first read. mr. baldwin felt at a loss to account why precipitation was used on this occasion, contrary to the customary usage of the house. he had not heard a single reason advanced in favor of it. to be sure it was said the petitioners are a respectable body of men; he did not deny it; but certainly gentlemen did not suppose they were paying respect to them or to the house, when they urged such a hasty procedure. it was contrary to his idea of respect, and the idea the house had always expressed, when they had important subjects under consideration; and, therefore, he should be against the motion. he was afraid that there was really a little volunteering in this business, as it had been termed by the gentleman from georgia. mr. huntington considered the petitioners as much disinterested as any persons in the united states; he was persuaded they had an aversion to slavery, yet they were not singular in this; others had the same; and he hoped, when congress took up the subject, they would go as far as possible to prohibit the evil complained of. but he thought that would be better done by considering it in the light of revenue; when the committee of the whole on questions of finance might properly take the subject into consideration, without giving any ground for alarm. mr. tucker.--i have no doubt on my mind respecting what ought to be done on this occasion; so far from committing the memorial, we ought to dismiss it without further notice. what is the purport of the memorial? it is plainly this, to reprobate a particular kind of commerce, in a moral point of view, and to request the interposition of congress to effect its abrogation. but congress has no authority, under the constitution, to do more than lay a duty of ten dollars upon each person imported; and this is a political consideration, not arising from either religion or morality, and is the only principle upon which we can proceed to take it up. but what effect do these men suppose will arise from their exertions? will a duty of ten dollars diminish the importation? will the treatment be better than usual? i apprehend not; nay, it may be worse, because an interference with the subject may excite a great degree of restlessness in the minds of those it is intended to serve, and that may be a cause for the masters to use more rigor towards them than they would otherwise exert: so that these men seem to overshoot their object. but if they will endeavor to procure the abolition of the slave trade, let them prefer their petitions to the state legislatures, who alone have the power of forbidding the importation. i believe their applications there would be improper; but if they are any where proper, it is there. i look upon the address then to be ill-judged, however good the intention of the framers. mr. smith claimed it as a right that the petition should lie over till to-morrow. thursday, february . _assumption of state debts._ [mr. madison's motion to discriminate between original creditors and present holders, so as to pay claims in full to the former, and the highest market price to the assignee, and the remainder to the original creditor.] the house then again resolved itself into a committee of the whole upon the report of the secretary of the treasury, mr. baldwin in the chair. mr. burke's amendment being under consideration, mr. burke said, he had brought his motion forward, in consequence of a hasty promise he had given a member of this house; but as he did not mean to support it, or vote for it, he would withdraw it. mr. madison.--no gentleman, mr. chairman, has expressed more strongly than i feel, the importance and difficulty of the subject before us. although i have endeavored to view it under all its aspects, and analyze it in all its principles, yet have i kept my mind open, and been anxious to aid my own reflections by the reflected light to be expected from gentlemen on this floor who enter into the discussion. for this purpose, i have chosen hitherto rather to be a hearer than a speaker on the subject, and should even at this moment have continued in my seat, but that the turn which the business has taken, renders it requisite for me now, if at all, to trouble the committee with my reflections, and the opinion in which they have terminated. it has been said, by some gentlemen, that the debt itself does not exist in the extent and form which is generally supposed. i confess, sir, i differ altogether from the gentleman who takes that ground. let us consider, first, by whom the debt was contracted, and then let us consider to whom it is due. the debt was contracted by the united states, who, with respect to that particular transaction, were in a national capacity. the government was nothing more than the agent or organ, by which the whole body of the people acted. the change in the government which has taken place has enlarged its national capacity, but it has not varied the national obligation, with respect to the engagements entered into by that transaction. for, in like manner, the present government is nothing more than the organ, or agent, of the public. the obligation which they are under, is precisely the same with that under which the debt was contracted; although the government has been changed, the nation remains the same. there is no change in our political duty, nor in the moral or political obligation. the language i now use, sir, is the language of the constitution itself; it declares that all debts shall have the same validity against the united states, under the new, as under the old form of government. the obligation remains the same, though i hope experience will prove that the ability has been favorably varied. the next question is, to what amount the public are at present indebted? i conceive the question may be answered in a few words. the united states owe the value they received, which they acknowledge, and which they have promised to pay: what is that value? it is a certain sum in principal, bearing an interest of six per cent. no logic, no magic, in my opinion, can diminish the force of the obligation. the only point on which we can deliberate is, to whom the payment is really due; for this purpose, it will be proper to take notice of the several descriptions of people who are creditors of the union, and lay down some principles respecting them, which may lead us to a just and equitable decision. as there is a small part of the debt yet unliquidated, it may be well to pass it by and come to the great mass of the liquidated debt. it may here be proper to notice four classes into which it may be divided: _first_, original creditors, who have never alienated their securities. _second_, original creditors who have alienated. _third_, present holders of alienated securities. _fourth_, intermediate holders, through whose hands securities have circulated. the only principles that can govern the decision on their respective pretensions, i take to be, . public justice; . public faith; . public credit; . public opinion. with respect to the first class, there can be no difficulty. justice is in their favor, for they have advanced the value which they claim; public faith is in their favor, for the written promise is in their hands; respect for public credit is in their favor, for if claims so sacred are violated, all confidence must be at an end; public opinion is in their favor, for every honest citizen cannot but be their advocate. with respect to the last class, the intermediate holders, their pretensions, if they have any, will lead us into a labyrinth, for which it is impossible to find a clew. this will be the less complained of, because this class were perfectly free, both in becoming and ceasing to be creditors; and because, in general, they must have gained by their speculations. the only rival pretensions, then, are those of the original creditors, who have assigned, and of the present holders of the assignments. the former may appeal to justice, because the value of the money, the service, or the property advanced by them, has never been really paid to them. they may appeal to good faith, because the value stipulated and expected, is not satisfied by the steps taken by the government. the certificates put into the hands of the creditors, on closing their settlements with the public, were of less real value than was acknowledged to be due; they may be considered as having been forced, in fact, on the receivers. they cannot, therefore, be fairly adjudged an extinguishment of the debt. they may appeal to the motives for establishing public credit, for which justice and faith form the natural foundation. they may appeal to the precedent furnished by the compensation allowed to the army during the late war, for the depreciation of bills, which nominally discharged the debts. they may appeal to humanity, for the sufferings of the military part of the creditors can never be forgotten, while sympathy is an american virtue. to say nothing of the singular hardship, in so many months, of requiring those who have lost four-fifths, or seven-eighths of their due, to contribute the remainder in favor of those who have gained in the contrary proportion. on the other hand, the holders by assignment have claims, which i by no means wish to depreciate. they will say, that whatever pretensions others may have against the public, these cannot affect the validity of theirs. that if they gain by the risk taken upon themselves, it is but the just reward of that risk. that as they hold the public promise, they have an undeniable demand on the public faith. that the best foundation of public credit is that adherence to literal engagements on which it has been erected by the most flourishing nations. that if the new government should swerve from so essential a principle, it will be regarded by all the world as inheriting the infirmities of the old. such being the interfering claims on the public, one of three things must be done; either pay both, reject wholly one or the other, or make a _composition_ between them on some principle of equity. to pay both is perhaps beyond the public ability; and as it would far exceed the value received by the public, it will not be expected by the world, nor even by the creditors themselves. to reject wholly the claims of either is equally inadmissible; such a sacrifice of those who possess the written engagements would be fatal to the proposed establishment of public credit; it would moreover punish those who had put their trust in the public promises and resources. to make the other class the sole victims is an idea at which human nature recoils. a composition, then, is the only expedient that remains; let it be a liberal one in favor of the present holders, let them have the highest price which has prevailed in the market; and let the residue belong to the original sufferers. this will not do perfect justice; but it will do more real justice, and perform more of the public faith, than any other expedient proposed. the present holders, where they have purchased at the lowest price of the securities, will have a profit that cannot reasonably be complained of; where they have purchased at a higher price, the profit will be considerable; and even the few who have purchased at the highest price cannot well be losers, with a well funded interest of six per cent. the original sufferers will not be fully indemnified; but they will receive, from their country, a tribute due to their merits, which, if it does not entirely heal their wounds, will assuage the pain of them. i am aware, that many plausible objections will lie against what i have suggested, some of which i foresee and will take some notice of. it will be said, that the plan is impracticable; should this be demonstrated, i am ready to renounce it; but it does not appear to me in that light. i acknowledge that such a scale as has often been a subject of conversation, is impracticable. the discrimination proposed by me, requires nothing more than a knowledge of the present holders, which will be shown by the certificates; and of the original holders, which the office documents will show. it may be objected, that if the government is to go beyond the literal, into the equitable claims against the united states, it ought to go back to every case where injustice has been done. to this the answer is obvious: the case in question is not only different from others in point of magnitude and of practicability, but forces itself on the attention of the committee, as necessarily involved in the business before them. it may be objected, that public credit will suffer, especially abroad; i think this danger will be effectually obviated by the honesty and disinterestedness of the government displayed in the measure, by a continuance of the punctual discharge of foreign interest, by the full provision to be made for the whole foreign debt, and the equal punctuality i hope to see in the future payments on the domestic debts. i trust also, that all future loans will be founded on a previous establishment of adequate funds; and that a situation, like the present, will be thereby rendered impossible. i cannot but regard the present case as so extraordinary, in many respects, that the ordinary maxims are not strictly applicable to it. the fluctuations of stock in europe, so often referred to, have no comparison with those in the united states. the former never exceeded , , or per cent.: can it be said, that because a government thought this evil insufficient to justify an interference, it would view in the same light a fluctuation amounting to seven or eight hundred per cent. i am of opinion, that were great britain, holland, or any other country, to fund its debts precisely in the same situation as the american debt, some equitable interference of the government would take place. the south sea scheme, in which a change, amounting to one thousand per cent. happened in the value of stock, is well known to have produced an interference, and without any injury whatever to the subsequent credit of the nation. it is true, that in many respects, the case differed from that of the united states; but, in other respects, there is a degree of similitude, which warrants the conjecture. it may be objected, that such a provision as i propose will exceed the public ability; i do not think the public unable to discharge honorably all its engagements, or that it will be unwilling, if the appropriations shall be satisfactory. i regret, as much as any member, the unavoidable weight and duration of the burthens to be imposed; having never been a proselyte to the doctrine, that public debts are public benefits. i consider them, on the contrary, as evils which ought to be removed as fast as honor and justice will permit, and shall heartily join in the means necessary for that purpose. i conclude with declaring, as my opinion, that if any case were to happen among individuals, bearing an analogy to that of the public, a court of equity would interpose for its redress; or that if a tribunal existed on earth, by which nations could be compelled to do right, the united states would be compelled to do something not dissimilar in its principles to what i have contended for. mr. livermore wished the amendment he had formerly mentioned might be made to the original proposition; it was, to insert, before the word "interest," the words, "at a certain rate o." mr. sherman apprehended it would strongly imply that congress meant to reduce the rate of interest, and he did not wish that question involved with the present. mr. livermore's motion being seconded, the question was put thereon, and it being lost, mr. madison moved to amend the original proposition, so as to read as follows: _resolved_, that adequate funds ought to be provided for paying the interest and principal of the domestic debt, as the same shall be liquidated; and that in such liquidation, the present holders of public securities, which have been alienated, shall be settled with according to the highest market rate of such securities; and that the balance of the sums due from the public, be paid in such proportion to the original holder of such securities. mr. boudinot said, he had long been in the habit of paying great respect to the sentiments of the gentleman from virginia; but he feared, on this occasion, he had not viewed the subject with his usual accuracy. he was not surprised that the gentleman was led away by the dictates of his heart, for he believed he really felt for the misfortunes of his fellow-citizens, who had been the prey of avaricious men. indeed, it is matter of less surprise, on another account, for heretofore i contemplated the subject in nearly the same point of view. influenced by a desire to do justice to every person connected with the public, i wished for the means of compensating the original holders, who had sold their certificates at a great loss; but i found the thing, upon long and careful examination, to be both unjust and impracticable. the honorable gentleman tells us, that the debt was contracted for meritorious services, and inquires whether the creditor received an adequate compensation in full discharge? i say, sir, this debt is still due, and that the person to whom it is due, has received nothing but a certificate as evidence of his claim; but then, if any of our first creditors have put another person in their shoes, the question will arise, are we to disown the act of the party himself? are we to say, we will not be bound by your transfer, we will not treat with your representative, but insist upon a resettlement with you alone? but the same reasoning will oblige us to go further, and investigate all the claims of those who have received of the government continental money, which they afterwards parted with for ten, forty, or one hundred for one. friday, february . _abolition of slavery._ the following memorial of the pennsylvania society for promoting the abolition of slavery, the relief of free negroes unlawfully held in bondage, and the improvement of the condition of the african race, was presented and read: the memorial respectfully showeth, that from a regard for the happiness of mankind, an association was formed several years since in this state, by a number of her citizens, of various religious denominations, for promoting the abolition of slavery, and for the relief of those unlawfully held in bondage. a just and acute conception of the true principles of liberty, as it spread through the land, produced accessions to their numbers, many friends to their cause, and a legislative co-operation with their views, which, by the blessing of divine providence, have been successfully directed to the relieving from bondage a large number of their fellow-creatures of the african race. they have also the satisfaction to observe, that in consequence of that spirit of philanthropy and genuine liberty which is generally diffusing its beneficial influence, similar institutions are forming at home and abroad. that mankind are all formed by the same almighty being, alike objects of his care, and equally designed for the enjoyment of happiness, the christian religion teaches us to believe, and the political creed of americans fully coincides with the position. your memorialists, particularly engaged in attending to the distresses arising from slavery, believe it their indispensable duty to present this subject to your notice. they have observed, with real satisfaction, that many important and salutary powers are vested in you for "promoting the welfare and securing the blessings of liberty to the people of the united states;" and as they conceive that these blessings ought rightfully to be administered, without distinction of color, to all descriptions of people, so they indulge themselves in the pleasing expectation, that nothing which can be done for the relief of the unhappy objects of their care will be either omitted or delayed. from a persuasion that equal liberty was originally the portion, and is still the birthright of all men; and influenced by the strong ties of humanity, and the principles of their institution, your memorialists conceive themselves bound to use all justifiable endeavors to loosen the bands of slavery, and promote a general enjoyment of the blessings of freedom. under these impressions, they earnestly entreat your serious attention to the subject of slavery; that you will be pleased to countenance the restoration of liberty to those unhappy men, who alone, in this land of freedom, are degraded into perpetual bondage, and who, amidst the general joy of surrounding freemen, are groaning in servile subjection; that you will devise means for removing this inconsistency from the character of the american people; that you will promote mercy and justice towards this distressed race, and that you will step to the very verge of the power vested in you for discouraging every species of traffic in the persons of our fellow-men. benj. franklin, _president_. philadelphia, _february_ , . mr. hartley then called up the memorial presented yesterday, from the annual meeting of friends at philadelphia, for a second reading; whereupon the same was read a second time, and moved to be committed. mr. tucker was sorry the petition had a second reading, as he conceived it contained an unconstitutional request, and from that consideration he wished it thrown aside. he feared the commitment of it would be a very alarming circumstance to the southern states; for if the object was to engage congress in an unconstitutional measure, it would be considered as an interference with their rights, the people would become very uneasy under the government, and lament that they ever put additional powers into their hands. he was surprised to see another memorial on the same subject; and that signed by a man who ought to have known the constitution better. he thought it a mischievous attempt, as it respected the persons in whose favor it was intended. it would buoy them up with hopes, without a foundation, and as they could not reason on the subject, as more enlightened men would, they might be led to do what they would be punished for, and the owners of them, in their own defence, would be compelled to exercise over them a severity they were not accustomed to. do these men expect a general emancipation of slaves by law? this would never be submitted to by the southern states without a civil war. do they mean to purchase their freedom? he believed their money would fall short of the price. but how is it they are more concerned in this business than others? are they the only persons who possess religion and morality? if the people are not so exemplary, certainly they will admit the clergy are; why, then, do we not find them uniting in a body, praying us to adopt measures for the promotion of religion and piety, or any moral object? they know it would be an improper interference; and to say the best of this memorial, it is an act of imprudence, which he hoped would receive no countenance from the house. mr. seney denied that there was any thing unconstitutional in the memorial; at least, if there was it had escaped his attention, and he should be obliged to the gentleman to point it out. its only object was, that congress should exercise their constitutional authority to abate the horrors of slavery, as far as they could; indeed, he considered that all altercation on the subject of commitment was at an end, as the house had impliedly determined yesterday that it should be committed. mr. burke saw the disposition of the house, and he feared it would be referred to a committee, maugre all their opposition; but he must insist, that it prayed for an unconstitutional measure; did it not desire congress to interfere and abolish the slave trade, while the constitution expressly stipulates that congress shall exercise no such power? he was certain the commitment would sound an alarm, and blow the trumpet of sedition in the southern states. he was sorry to see the petitioners paid more attention to than the constitution; however, he would do his duty and oppose the business totally; and if it was referred to a committee, as mentioned yesterday, consisting of a member from each state, and he was appointed, he would decline serving. mr. scott.--i cannot entertain a doubt but the memorial is strictly agreeable to the constitution; it respects a part of the duty particularly assigned to us by that instrument, and i hope we may be inclined to take it into consideration. we can at present lay our hands upon a small duty of ten dollars; i would take this, and if it is all that we can do, we must be content: but i am sorry that the framers of the constitution did not go further, and enable us to interdict the traffic entirely; for i look upon the slave trade to be one of the most abominable things on earth; and if there was neither god nor devil, i should oppose it upon the principles of humanity, and the law of nature. i cannot, for my part, conceive how any person can be said to acquire a property in another; is it by virtue of conquest? what are the rights of conquest? some have dared to advance this monstrous principle, that the conqueror is absolute master of his conquest; that he may dispose of it as his property, and treat it as he pleases; but, enough of those who reduce men to the state of transferable goods, or use them like beasts of burthen, who deliver them up as property or patrimony to others. let us argue on principles countenanced by reason and becoming humanity; the petitioners view the subject in a religious light, but i do not stand in need of religious motives to induce me to reprobate the traffic in human flesh; other considerations weigh with me to support the commitment of the memorial, and to support every constitutional measure likely to bring about its total abolition. perhaps, in our legislative capacity, we can go no further than to impose a duty of ten dollars; but i do not know how far i might go, if i was one of the judges of the united states, and those people were to come before me and claim their emancipation; but i am sure i would go as far as i could. mr. jackson differed with the gentleman last up, and supposed the master had a qualified property in his slave. he said the contrary doctrine would go to the destruction of every species of personal service. the gentleman said, he did not stand in need of religion to induce him to reprobate slavery, but if he is guided by that evidence upon which the christian system is founded, he will find that religion is not against it. he will see, from genesis to revelations, the current setting strong that way. there never was a government on the face of the earth, but what permitted slavery. the purest sons of freedom in the grecian republics, the citizens of athens and lacedæmon, all held slaves. on this principle the nations of europe are associated; it is the basis of the feudal system. but suppose all this to have been wrong, let me ask the gentleman if it is good policy to bring forward a business at this moment, likely to light up the flame of civil discord; for the people of the southern states will resist one tyranny as soon as another? the other parts of the continent may bear them down by force of arms, but they will never suffer themselves to be divested of their property without a struggle. the gentleman says, if he was a federal judge, he does not know to what length he would go in emancipating these people; but i believe his judgment would be of short duration in georgia, perhaps even the existence of such a judge might be in danger. mr. sherman could see no difficulty in committing the memorial; because it was probable the committee would understand their business, and perhaps they might bring in such a report as would be satisfactory to gentlemen on both sides of the house. mr. baldwin was sorry the subject had ever been brought before congress, because it was of a delicate nature as it respected some of the states. gentlemen who had been present at the formation of this constitution could not avoid the recollection of the pain and difficulty which the subject caused in that body. the members from the southern states were so tender upon this point, that they had well-nigh broken up without coming to any determination; however, from the extreme desire of preserving the union, and obtaining an efficient government, they were induced mutually to concede, and the constitution jealously guarded what they agreed to. if gentlemen look over the footsteps of that body, they will find the greatest degree of caution used to imprint them, so as not to be easily eradicated; but the moment we go to jostle on that ground, i fear we shall feel it tremble under our feet. congress have no power to interfere with the importation of slaves beyond what is given in the ninth section of the first article of the constitution; every thing else is interdicted to them in the strongest terms. if we examine the constitution, we shall find the expressions relative to this subject cautiously expressed, and more punctiliously guarded than any other part, "the migration or importation of such persons shall not be prohibited by congress." but lest this should not have secured the object sufficiently, it is declared, in the same section, "that no capitation or direct tax shall be laid, unless in proportion to the census;" this was intended to prevent congress from laying any special tax upon negro slaves, as they might, in this way, so burthen the possessors of them as to induce a general emancipation. if we go on to the fifth article, we shall find the first and fifth clauses of the ninth section of the first article restrained from being altered before the year . gentlemen have said that this petition does not pray for an abolition of the slave trade. i think, sir, it prays for nothing else; and therefore we have no more to do with it than if it prayed us to establish an order of nobility, or a national religion. mr. sylvester said, that he had always been in the habit of respecting the society called quakers; he respected them for their exertions in the cause of humanity; but he thought the present was not a time to enter into a consideration of the subject, especially as he conceived it to be a business within the province of the state legislatures. mr. lawrence observed, that the subject would undoubtedly come under the consideration of the house; and he thought, as it was now before them, that the present time was as proper as any; he was therefore for committing the memorial, and when the prayer of it had been properly examined, they could see how far congress may, constitutionally, interfere: as they knew the limits of their power on this, as well as every other occasion, there was no just apprehension to be entertained that they would go beyond it. mr. smith (of south carolina) insisted that it was not in the power of the house to grant the prayer of the petition, which went to the total abolishment of the slave trade, and it was therefore unnecessary to commit it. he observed, that in the southern states difficulties had arisen on adopting the constitution, inasmuch as it was apprehended that congress might take measures under it for abolishing the slave trade. perhaps the petitioners, when they applied to this house, did not think their object unconstitutional, but now they are told that it is, they will be satisfied with the answer, and press it no further. if their object had been for congress to lay a duty of ten dollars per head on the importation of slaves, they would have said so, but that does not appear to have been the case. the commitment of the petition, on that ground, cannot be contended. if they will not be content with that, shall it be committed to investigate facts? the petition speaks of none. for what purpose, then, shall it be committed? if gentlemen can assign no good reason for the measure, they will not support it when they are told that it will create jealousies and alarm in the southern states; for i can assure them that there is no point on which they are more jealous and suspicious, than on a business with which they think the government has nothing to do. when we entered into this confederacy, we did it from political, not from moral motives, and i do not think my constituents want to learn morals from the petitioners; i do not believe they want improvements in their moral system; if they do, they can get it at home. the gentleman from georgia has justly stated the jealousy of the southern states. on entering into this government, they apprehend that the other states, not knowing the necessity the citizens of the southern states were under to hold this species of property, would, from motives of humanity and benevolence, be led to vote for a general emancipation; and had they not seen that the constitution provided against the effect of such a disposition, i may be bold to say they never would have adopted it. and, notwithstanding all the calmness with which some gentlemen have viewed the subject, they will find that this discussion alone will create great alarm. we have been told, that if this would be the case, we ought to have avoided it, by saying nothing; but it was not for that purpose that we were sent here. we look upon this measure as an attack upon the palladium of the property of our country; it is therefore our duty to oppose it by every means in our power. gentlemen should consider, that when we entered into a political connection with the other states, that this property was there; it was acquired under a former government, conformably to the laws and constitution, therefore any thing that will tend to deprive them of that property, must be an _ex post facto_ law, and, as such, is forbidden by our political compact. i said the states would never have entered into the confederation, unless their property had been guarantied to them, for such is the state of agriculture in that country, that without slaves it must be abandoned. why will these people, then, make use of arguments to induce the slave to turn his hand against his master? we labor under difficulties enough from the ravages of the late war. a gentleman can hardly come from that country with a servant or two, either to this place or philadelphia, but there are persons trying to seduce his servants to leave him; and, when they have done this, the poor wretches are obliged to rob their master, in order to obtain a subsistence; all those, therefore, who are concerned in this seduction, are accessories to the robbery. the reproaches which they cast upon the owners of negro property, is charging them with the want of humanity. i believe the proprietors have as much humanity as persons in any part of the continent, and are as conspicuous for their good morals as their neighbors. it was said yesterday that the quakers are a society known to the laws and the constitution, but they are no more so than other religious societies; they stand exactly in the same situation; their memorial, therefore, relates to a matter in which they are no more interested than any other sect, and can only be considered as a piece of advice, which it is not customary to refer to a committee; but if it is supposed to pray for what they think a moral purpose, is that sufficient to induce us to commit it? what may appear a moral virtue in their eyes, may not be so in reality. i have heard of a sect of shaking quakers, who, i presume, suppose their tenets of a moral tendency. i am informed one of them forbids to intermarry, yet you may see them with a numerous offspring about them. now, if these people were to petition congress to pass a law prohibiting matrimony, would gentlemen agree to refer such a petition? i think if they would reject one of that nature, as improper, they ought also to reject this. mr. page was in favor of the commitment. he hoped that the designs of the respectable memoralists would not be stopped at the threshold, in order to preclude a fair discussion of the prayer of the memorial. he observed, that gentlemen had founded their arguments upon a misrepresentation; for the object of the memorial is not declared to be the total abolition of the slave trade, but that congress will consider whether it be not in reality within their power to exercise justice and mercy, which, if adhered to, they cannot doubt must produce the abolition of the slave trade. if, then, the prayer contained nothing unconstitutional, he trusted the meritorious effort of the petitioners would not be frustrated. with respect to the alarm that was apprehended, he conjectured there was none; but there might be just cause if the memorial was not taken into consideration. he placed himself in the case of a slave, and said, that, on hearing that congress had refused to listen to the decent suggestions of a respectable part of the community, he should infer that the general government (from which was expected great good would result to every class of citizens) had shut their ears against the voice of humanity, and he should despair of any alleviation of the miseries he and his posterity had in prospect; if any thing could induce him to rebel, it must be a stroke like this, impressing on his mind all the horrors of despair. but if he was told that application was made in his behalf, and that congress was willing to hear what could be urged in favor of discouraging the practice of importing his fellow-wretches, he would trust in their justice and humanity, and wait the decision patiently. he presumed that these unfortunate people would reason in the same way, and he, therefore, conceived the most likely way to prevent danger was to commit the petition. he lived in a state which had the misfortune of having in her bosom a great number of slaves; he held many of them himself, and was as much interested in the business, as any gentleman in south carolina or georgia, yet if he was determined to hold them in eternal bondage, he should feel no uneasiness or alarm on account of the present measure, because he should rely upon the virtue of congress that they would not exercise any unconstitutional authority. mr. madison.--the debate has taken a serious turn, and it will be owing to this alone if an alarm is created; for, had the memorial been treated in the usual way, it would have been considered as a matter of course, and a report might have been made so as to have given general satisfaction. if there was the slightest tendency by the commitment to break in upon the constitution, he would object to it; but he did not see upon what ground such an event was to be apprehended. the petition prayed, in general terms, for the interference of congress, so far as they were constitutionally authorized: but even if its prayer was, in some degree, unconstitutional, it might be committed, as was the case on mr. churchman's petition, one part of which was supposed to apply for an unconstitutional interference by the general government. he admitted, that congress is restricted by the constitution from taking measures to abolish the slave trade; yet there are a variety of ways by which it could countenance the abolition, and regulations might be made in relation to the introduction of them into the new states to be formed out of the western territory. he thought the object well worthy of consideration. mr. gerry thought the interference of congress fully compatible with the constitution, and could not help lamenting the miseries to which the natives of africa were exposed by this inhuman commerce. he never contemplated the subject, without reflecting what his own feelings would be, in case himself, his children, or friends were placed in the same deplorable circumstances. he then adverted to the flagrant acts of cruelty which are committed in carrying on that traffic; and asked, whether it can be supposed that congress has no power to prevent such abuses? he then referred to the constitution, and pointed out the restrictions laid on the general government respecting the importation of slaves. it was not, he presumed, in the contemplation of any gentleman in this house to violate that part of the constitution; but that we have a right to regulate this business, is as clear as that we have any rights whatever; nor has the contrary been shown by any person who has spoken on the occasion. congress can, agreeably to the constitution, lay a duty of ten dollars on imported slaves; they may do this immediately. he made a calculation of the value of the slaves in the southern states, and supposed they may be worth ten millions of dollars. congress have a right, if they see proper, to make a proposal to the southern states to purchase the whole of them, and their resources in the western territory might furnish them with the means. he did not intend to suggest a measure of this kind; he only instanced these particulars to show that congress certainly has a right to intermeddle in the business. he thought that no objection had been offered of any force to prevent the commitment of the memorial. mr. boudinot had carefully examined the petition and found nothing like what was complained of by gentlemen contained in it; he, therefore, hoped they would withdraw their opposition and suffer it to be committed. mr. smith (of south carolina) said, that as the petitioners had particularly prayed congress to take measures for the annihilation of the slave trade; and as that was admitted, on all hands, to be beyond their power, and as the petitioners would not be gratified by a tax of ten dollars per head, which was all that was within their power, there was, of consequence, no occasion for committing it. the question on the commitment being about to be put, the yeas and nays were called for, and were as follows: yeas.--messrs. ames, benson, boudinot, brown, cadwalader, clymer, fitzsimons, floyd, foster, gale, gerry, gilman, goodhue, griffin, grout, hartley, hathorn, heister, huntington, lawrence, lee, leonard, livermore, madison, moore, muhlenberg, page, parker, partridge, rensselaer, schureman, scott, sedgwick, seney, sherman, sinnickson, smith, (of maryland,) sturges, thatcher, trumbull, wadsworth, white, and wynkoop-- . nays.--messrs. baldwin, bland, burke, coles, huger, jackson, matthews, sylvester, smith, (of south carolina,) stone, and tucker-- . the memorials were referred accordingly. monday, february . _public credit._ the house went again into a committee of the whole on the report of the secretary of the treasury, mr. baldwin in the chair. mr. madison's motion for a discrimination being under consideration, mr. sedgwick.--the proposition, mr. chairman, contains a question of the utmost importance. and the committee must be obliged to the gentleman who brought it forward for his very ingenious discussion of the subject of the domestic debt. with respect to the question now before the committee, so much has been said, that i think it will not be necessary to consume much of their time in the investigation. on the subject of contracts i have to observe, that whenever a voluntary engagement is made for a valuable consideration for property advanced or services rendered, and the terms of the contract are understood, if no fraud or imposition is practised, the party engaging is bound to the performance, according to the literal meaning of the words in which it is expressed. such contract, whether of a government or an individual, may be either transferable or not transferable. the latter species of contract receives an additional value from its capacity of being transferred, if the circumstances of the possessor should render a sale of it necessary or convenient to him. to render the transferable quality of such evidences of contract in any degree advantageous to the possessor, it is necessary to consider, in case of sale, the alienee possessed of all the property of the original holder; and indeed it is highly absurd, and even contradictory, to say, that such evidences of debt are transferable, and at the same time to say that there is in them a kind of property that the holder could not convey by _bona fide_ contract. this is the construction which has invariably been given to these contracts, whether formed by government or by individuals. to deprive the citizen of the power of binding himself by his own voluntary contract, or to prevent a disposition of property in its nature alienable, would be a violent and unjustifiable invasion of one of those rights of which man, as a citizen, is the most tenacious, and would indeed break one of the strongest bonds by which society is holden together. in the transfers which have been made, the contracts were fairly made; the whole rights have been transferred. it is not pretended any fraud or imposition has been practised. the risk was calculated by the parties, and it was observed, that the risk contemplated a revolution in the government. from the foregoing deduction of particulars, it is presumed to be proved that a property is vested in the transferees. that if this property is divested by the government, the law for that purpose would have a retrospective operation, and that no _ex post facto_ law could be more alarming than that by which the right of private property is violently invaded. having considered the nature of the contract, and of the obligations which result from it, i beg leave to call the attention of the committee to those circumstances by which that obligation may be destroyed, impaired, or suspended. they are stated to be, . performance. . voluntary discharge. . composition. . inability. and gentlemen are called upon to give information of any other causes which can produce either of those effects. with regard, more particularly, to the proposition before the committee, i have, to observe, that with regard to these contracts, there has existed a depreciation in consequence of the failure of government regularly to pay the interest. that in this depreciated state, the securities have been alienated; that of course the original holders have sustained a loss; that if the loss resulted from the fault, and not the misfortune of government, the creditors have, undeniably, a demand against the government for compensation; that this demand, however well founded, can never authorize the government to invade the honestly acquired property of the present possessors, a property warranted by the terms of the contract itself, and sanctioned by the act of congress, of april, , and the validity of it recognized by the constitution we have sworn to support. with regard to the claims of the original holders, it is, however, observable, that the domestic creditor, at the time the contract was formed, well knew the nature of the constitution of the government administered by congress, the other contracting party; that its power of performance depended on the ability and good-will of the states; that congress had always performed its duty, had made the necessary requisitions; that this was its utmost power; and that the failure had arisen wholly from the neglect of the states. i therefore submit it to the committee, whether, if the original holder has a just or equitable demand, he should not resort to the state of which he is a member? i admit, that the case of an original holder is indeed a hard one; that i have a respect for his misfortunes and for his pretensions; that if satisfaction is discovered to be just and practicable, i would not hesitate to go to the utmost ability of the government for that purpose. but let me ask, what merit will the government possess, if it strip one class of citizens, who have acquired property by the known and established rules of law, under the specious pretence of doing justice to another class of citizens? it was implicitly agreed, that eighty per cent. depreciation would not authorize the interference proposed by the motion. i ask, then, for some point of depreciation to be pointed out, which will authorize such interference. the question for which i contend has received the universal approbation of mankind; there are no instances of the interference contended for, and this general sense of mankind affords me some evidence of truth. this contract was founded on a valuable consideration. it was the price of our liberty and independence. the possessor claimed, according to the very terms of the contract, though it is not pretended that the engagements of government have been performed. no composition with the creditors is proposed; nor is the proposition founded on any pretended inability of the government; for to comply with the intention of it, , , dollars, annually, more than is proposed by the report of the secretary, would be required. by reason of the circumstances which have taken place, the honorable gentleman (mr. madison) supposes, that, if the whole amount of a security shall be paid to the present possessor, he will have a sum of money to which the original holder is equitably entitled. if this is true, then, no interposition is necessary, it being a well-known rule of law, that an action will always lie to recover money out of the hands of another, to which the plaintiff, from the principles of equity and good conscience, is entitled. with regard to the effects, which will probably result from this measure, i have to observe, that they will be destructive to our national character. that the world is now willing, charitably, to impute our former miscarriages to events we could not control; but should our first measures, in regard to public faith, be a violent infraction of our contracts, it will sanction all our bitterest enemies have said, to our disadvantage. with regard to its effects on credit, little dependence will be placed on the plighted faith of a government which, under the pretence of doing equity, has exercised a power of dispensing with its contracts, and has thereby formed for itself a precedent of future violations, both with respect to its funds and contracts. with regard to discovering who was the original holder, except so far as respects the army debt, i am certain there are no documents by which the necessary facts can be discovered. i presume it is a fact, with regard to much the greater part of the debt, that any fictitious name was inserted. and with regard to the army debt, the soldiers, generally, who were in the service at the conclusion of the war, had received ample satisfaction for their services, at the time of their enlistment, having been paid more, on an average, than two hundred and fifty dollars per man. i have only to add, that the proposed system will lay a foundation for infinite frauds and perjuries, and that it will, beyond all powers of calculation, multiply the evils of speculation. mr. lawrence observed, that the proposition of the gentleman from virginia (mr. madison) derived force from the talents and knowledge of that gentleman in public transactions; but that, on examination, it would be found to contain doctrines very repugnant to the interest and prosperity of the union. he then stated, that the debts contracted by the united states were for loans of money, supplies of articles necessary for the public wants, and for actual services rendered in different employments. that these debts were ultimately adjusted and reduced to their present transferable form. that every part of the contract was essential to it. the negotiability was a material part. that the nature of the contract was frequently recognized by the late government. that, in , congress recommended certain funds to be established to pay the interest, and put the principal in a course of discharge. that this recommendation was unequivocal, as to the nature of it, and made no discrimination between the possessor and original holder. that the subsequent conduct of that body was conformable to this recommendation. that they had annually called on the states to furnish money to pay the interest, without discriminating between the original holder and present possessor. that they had paid interest on the securities, without making any discrimination. that provision had been made for holders of loan-office certificates that were subject to liquidation, to have them cancelled, and others issued for the specie value. that the holders of certificates were enabled to have them registered, to guard against accidents; and that no distinction was made between the original holder and the alienee. that the transferable nature of the claim was for the benefit of the creditor, because it gave it an active value. that he consented to take it, and consulted his own advantage. that the conduct of the late congress, since the war, had been uniform in the support of this contract, and they had done no act to impair its obligation, according to the terms of it. that this contract was valid against the government; for, notwithstanding the truth of the gentleman's observations, that the nation is the same, though the bodies that administered the government were different, there was yet far greater security; and to remove all doubt, a clause that made all debts and engagements valid against the united states, under the late general government, valid against the present, was inserted in the constitution. he further observed, that this contract having descended upon the government, there was no right in the legislature to impair the force of it. that the particular governments are restrained from passing laws impairing the obligations of contracts. that this interference would be a violation of the contract, between the individuals, when the certificate was transferred; and it would not be presumed, the states being prohibited, that the general government had the power to do it. he then adverted to the principles of the gentleman, to wrest the obligation of the public to the original holder; and observed, that the same principles were in favor of the present possessor. that public justice required a performance of contracts, when there was no fraud on the part of the holder. that the possessor had been guilty of no fraud, no deception. that the contract between him and the original holder was fair, and that a hazard and risk attended the purchase adequate to the advantage. that nothing short of a revolution in government could have produced payment. that if there was an imposition, the public occasioned it; and between the original holder and the public, there might be a claim for retribution. that public faith was as sacredly pledged to the bearer, or present possessor, as to the original creditor. that public credit results from fair and upright conduct; that the government, to support it, must perform its contract. that this was a contract recognized by them, and as such should be discharged. that the condition we have been in made it proper for us to be cautious on this subject; and even at present, people doubted our disposition to establish our credit. that this would give a fatal blow to it, and when we should recover, if ever, was doubtful. that the public opinion was difficult to be ascertained; gentlemen had different modes to determine it. he supposed it was better ascertained by the acts of public bodies than by squibs in the newspapers, or by pamphlets written by individuals. that the uniform conduct of men, deputed by the particular states to represent them, in the late general government, was the best standard; and their opinion, from the year , was in favor of the present possessor. that the conduct of the particular states was another circumstance; that he did not know of any discrimination made by them, though it had been attempted. that the general opinion of men of property was in favor of it; and that these sources of public opinion were more certain than those he had before mentioned. he further observed, that although he believed gentlemen supposed no advantage would be derived to the united states from this discrimination, yet much would arise. that part of the army was composed of foreigners, many had left the country, others were dead; all their part would be unclaimed. that certificates were issued to public officers to a great amount, and were paid by them to persons from whom they purchased. the difficulty of making proof of the original creditor would be great; and, from this circumstance, great sums would be gained to the public. that there were persons enough who would have sagacity to discern this; and they would doubt the purity of the public motive, should the gentleman's plan be adopted. he then adverted to the circumstance of the new creditor receiving paper. that this paper might be subject to another liquidation on the same principle as the present. that it would introduce doubt and distrust of public engagements; and there would be no greater security, although a fund was pledged, than there is at present, for whenever the public pleased, they might destroy the obligation. arguments were improperly addressed to their feelings; but that however hard it may be for the original creditor, who had parted with his certificates, to contribute to pay the debt, yet it would be equally hard on him who had been injured by continental money, who had been plundered by the enemy, who had had his property burned by them in the course of the war; and that instances of these kinds were numerous. he then adverted to the doctrine of the court of equity; and urged that this court must be governed by principle. that were the committee this high court, and the united states the original creditor, and the present possessor before them; and if there appeared no fraud on the part of the possessor, the original creditor would have no just claim on him. that between the united states and original creditors, the united states were in fault, and the claim, if good, would be against them. mr. smith (of s. c.) remarked, that it was necessary and proper the house should give the subject the most ample discussion. the question had long agitated the public mind, and the people should know that it had occupied the serious attention of their representatives, and be made acquainted with the principles of their decision. for his part, having bestowed on it the most attentive consideration, he could assert, that the more he contemplated it, the more he was impressed with a conviction, that the proposition was unjust, impolitic, and impracticable. it consisted of two parts: the one was to take away the property of one person; the other was to give that property to another; and this by a voluntary interposition of the house, by a mere act of power, without the assent of the former, or without even the application of the latter. for it was remarkable, that the original holders, who had alienated their certificates, had not come forward with this demand; and it is presumable, that, had they applied for redress, they would reject any indemnification which was the result of such manifest injustice. to prove that this was taking away the property of a citizen by force, he observed, that the purchaser had, by a fair purchase, acquired a right to the full amount of the sum expressed in the certificate, which it was not within the power of the house to divest him of. no tribunal on earth could lawfully deprive a man of his property fairly obtained. the purchaser bought under the act of congress, making the securities transferable; and having given the market price, without fraud or imposition, he was, by virtue of such purchase, vested with the complete and absolute ownership of the certificate, as fully as the original holder; and had as much right to demand full payment as the original holder would have had, had the security been still in his hands. even should the house refuse, by an act of power, to pay him more than half his demand, the other half would still remain against the public; it could not be extinguished. the debt would continue to haunt them; the creditors would loudly clamor for justice, and sooner or later the balance would be paid. then would they incur all the odium of a violation of private rights, without deriving to the public any advantage whatever. he considered the measure as doing a certain evil, that a possible good might result from it. this was not, in his opinion, the proper mode of doing good. justice cannot be founded on injustice; and to take money out of the pocket of one man, to put it into that of another, is a precedent which may justify future interferences. this step would lead the house to others: for, if the principle be a just one, then the government should look into all the transactions and speculations of individuals, in order to correct them, and make retribution to every individual according to his losses. he was persuaded, that the true policy of a legislative body was, to pursue the broad road of justice, clearly marked out before them; for it was an undeniable truth, that whenever they deviated into by-roads and trackless paths, without any other guide than their own imagination, they would get bewildered in a labyrinth of difficulties, and rejoice to trace back their steps, and regain the plain road. now, the plain line of conduct is, to do strict justice, such as is enforced in judicial tribunals, between man and man, in a similar case. the debtor is bound to pay the debt to the holder of the security; the contract, between the giver of the bond and the person to whom it was given, is done away the moment the latter assigns it to another person. if a gives a bond to b, who parts with it to c, there is no longer any obligation on the part of a to pay b, but he must pay it to c. a has nothing to do with the private negotiations between b and c, nor to inquire what consideration was given for the security. all that he has to inquire is, whether he really signed it and had value received for it, and the amount of it. he cannot say to the holder, you gave but fifty dollars for this security of one hundred dollars, and i will pay you only fifty; for the law will compel him to pay the hundred. this is a point of justice between man and man. is there another point of law and justice for the government? by what rule is the government to square its conduct, if not by those sacred rules which form the basis of civil society, and are the safeguard of private property? the gentleman from virginia has said, that giving the present holders, by alienation, the highest market price, would be doing them ample justice; but did the public mean to refund them the money they had actually advanced? no; they were to receive this ample justice by a bit of paper, nominally for ten shillings; but which this very measure would instantly depreciate to eight, or six shillings. they would have this consolation, that, according to the gentleman's reasoning, they would still have a claim against the government for the balance. for, if the original holder, by selling his certificate for four shillings, has now a just claim against the government for the balance of sixteen shillings, which it is asserted he has, of course the alienee, to whom the public should now acknowledge a debt of ten shillings, which he would sell for only six, would hereafter have a just demand against the public for four shillings. the reasoning might be carried further, for it would follow, that whenever the public shall pay in paper which shall depreciate, the seller will have a demand against the government for the difference. the constitution itself, he said, was opposed to the measure, for it was an _ex post facto_ law, which was prohibited in express terms. the transfer of public securities was lawful at the time these alienations were made; an attempt, therefore, to punish the transferees is an attempt to make an _ex post facto_ law, by making that now unlawful which was lawful at the time it was done. it alters the nature of the transaction, and annexes the idea of guilt to that which at the moment of commission, was not only perfectly innocent, but was explicitly authorized and encouraged by a public act of congress. by that act those who had money were invited to purchase of those who held securities, and now we are called upon to punish the purchasers who bought under that invitation. the constitution restrains the states from passing any laws impairing the force of contracts; _a fortiori_ is the legislature of the union restrained. what an example to hold up to the judiciary of the united states! how could they annul a state law, when the state would be able to plead a precedent on the part of congress? the right of property is a sacred right; no tribunal on earth can deprive a citizen of his property, unless for a fair equivalent, for the public welfare. the purchaser is vested, by the sale, with an absolute right, to the full amount of the security, and it is beyond their authority to divest him of it. they might, indeed, by an act of power, declare that he should be paid only half; but his right to the other moiety would not be extinguished. it had been said, that the original holder still had a claim against the public, because he had received only two shillings and sixpence for services worth twenty shillings. on the same principle, and with more justice, the present holder would still have a claim for ten shillings, because he has the public bond for twenty shillings. no ingenuity can overcome these stubborn principles of law and justice; they are immutable, and must ultimately prevail. the house had been told that if the government had defrauded the original holders out of their dues, it was fit the public should rectify the fraud. the former government was not deficient in inclination to do them ample justice; but, from the imbecility of the confederation, had not the means. in those days of democratic enthusiasm, the people were afraid of an energetic government: having so recently experienced the severity of the former one, the citizens of these states were cautious in trusting any government with power; and it is not improbable that some of the original holders, who suffered their embarrassments, from the want of a government competent to the payment of its debts, would themselves have opposed vesting congress with powers adequate to this object. even the present constitution, which is a mild one, met with considerable opposition: had it been rejected, the public securities would have never been paid. mr. ames agreed with the gentleman from virginia (mr. madison) in regard to the validity of the debt. there was propriety in saying the nation is the same, though the government be changed. the debt is the price of our liberties, and cannot be diminished a farthing, the gentleman from virginia says; and why? because the government, as one of the contracting parties, cannot annul, or vary the bargain without the consent of the other. if the measure proposed by that gentleman corresponds with that sound principle, he should have the pleasure of agreeing with him on the ultimate decision; but if the measure should be found, on a fair discussion, to be subversive of that principle, it would not merit the countenance of the committee. a claim upon our justice is made, on behalf of the original holders of securities, who have transferred them. does the plighted faith of the country stand charged to pay the difference between the price their securities sold for in the market and their nominal sum? in order to make the affirmative appear, the worthy gentleman has said, that the paper is the only evidence of a prior contract; and while the paper was sold, the residuary right to the debt still remained in the seller. supposing this novel doctrine to be true, which cannot be conceded, it will not warrant any conclusion in prejudice of any purchaser of the loan-office debt; for the paper was given when the loan was made; as no prior debt existed, the paper is the very debt. the gentleman ought, therefore, to confine his motion to the army debt, as his principle seems inapplicable to any other. and even on liquidating the army debt, the certificate extinguished the prior debt; otherwise the public would be twice charged. as, when one man owes another an account, and gives his bond for the balance, the account is no longer of force. by the terms of the certificate, the person transferring has lost his claim against the public. he has freely transferred; for if violence or fraud were practised, the law will afford him redress. in society, as well as in a state of nature, property is changed by the consent of the last occupant. he may dispose of it by gift or at half price, and give a complete title. nor will the pretence that this transfer was free only in appearance, avail; for the motives which disposed the owner to sell cannot affect the right of the purchaser. every such creditor risked something; either that the government would not pay him at all, or not in due season. the risk, computed in free and open market, will be nearly right. it is a kind of insurance against these risks, and the insurers and insured will calculate the rate of insurance better than government can do it. if there is a new risk of government interposing, it seems that the purchaser, who may be called the insurer, did not rate his risk high enough. it seems pretty clear, therefore, that there is no claim on the stipulated justice of the country. the committee rose, reported progress, and obtained leave to sit again. tuesday, february . _public credit._ the house again resolved itself into a committee of the whole on the report of the secretary of the treasury, mr. baldwin in the chair. mr. madison's proposition still under consideration. mr. jackson observed, that although as young a politician as any on the floor, and convinced that the weight of experience was against him, on so important a national subject, he could not be silent; particularly as he had the honor of seconding the gentleman's motion (mr. madison) now before the house, that it would be therefore expected that he should bring forward his reasons, and the principle which actuated him to it. he confessed, that had he not before leaned to the side of a discrimination, the arguments of that able gentleman would have induced him to support the plan he had brought forward. he was induced on another motive to rise, to show that the numerous arguments of the gentlemen in opposition, yesterday, had not convinced him of the impracticability or injustice of the composition. the house were told much of the moral obligations we were under of paying our debts, and the impolicy and injustice of interfering with private contracts. the obligation, he believed, was nowhere denied; the debt was of the highest nature; it was the price of our independence: the only difficulty is, how that debt shall be discharged. he would here observe, that the justice of the plan before the house, had not been so fully objected to, as the impracticability, although it had been asserted to be unjust, by some of the gentlemen who had spoken. he would consider the justice of the proposition. the house had been told the nature of those contracts, and the valuable considerations of them. the contract, as it struck him, fell under the legal terms of _do, ut des_; i give that thou mayest give--or, i give that i may receive. in all contracts there are three requisites: st. the agreement. d. the consideration. d. the thing to be done or omitted. this consideration is to be an equivalent, or full recompense for the thing to be performed. let us examine what is the thing to be done, and what the consideration is. the creditor, who was to perform the third article of the contract, held twenty shillings, which was to be given for a valuable consideration. what was this consideration? two shillings and sixpence. he argued, that if this twenty shillings was worth no more than two shillings and sixpence, the contract was fair and substantial; but, if gentlemen carried the idea further, and declared this twenty shillings was money of equal value with the two shillings and sixpence given, he contended that the contract was destroyed. equity would relieve, would declare it an unrighteous bargain, that there was not an adequate compensation, and would set aside the contract. this public opinion is in favor of the original creditor; it is impossible to be otherwise. the people of america are a grateful people, and they cannot, with indifference, view the earnings of those who established their independence, converted into the coffers of the wealthy and ambitious. the speculator, he contended, was already more than satisfied, if it was only on the principle of interest which had accrued for six, seven, and eight years past, and which they had speculated on since. mr. benson.--the gentlemen in favor of this motion come forward as the advocates of the late army. i wish, therefore, to be ascertained of one fact, do the army wish a measure of this kind to take place? i apprehend they do not; and i am led to this opinion from a knowledge of the habits of military men; they prefer their honor to every pecuniary consideration, and they generally are actuated by that principle alone. i will state a case. suppose i purchased an officer's certificate for one hundred dollars, and i was to fund it; the treasurer would say, you are to receive but fifty dollars, the other fifty are reserved for the original holder. now, if i was to go and tell the officer, that, notwithstanding my purchase of all his right, title, and claim to the one hundred dollars, the government would give me but fifty, retaining the other fifty for him, he would answer, i will never receive a farthing of it, because it is your money, fairly and honorably purchased of me. now, in this case, what would you do? should these fifty dollars fall to the government, or to me? i reason in this manner, because i suppose this would be a general case. the society of cincinnati, of the state of new york, have, by a resolution, which they have published in the papers, disavowed the principle; and, in rhode island, a member of the society was expelled for taking advantage of the tender-law of that state, and paying off a _bona fide_ debt with depreciated paper. i apprehend the principle of action still remains the same throughout the whole of the army. when the soldier conveyed his certificate, there was a contract between the parties, that whatever sum the government could pay, the whole of it should go to the assignee. now, by an act of violence, you take the half of it away, and enable the assignor to discharge the contract by paying fifty dollars, when he had engaged that the purchaser should receive one hundred. this is, in effect, the same as the payment of depreciated paper under a tender-law, and would be equally rejected by those whom it is intended to favor. i would state the case, as if it had happened between the gentleman and myself, could he hesitate to say the whole sum was fairly mine, and surrender it up, notwithstanding the legal interference of the government? this is a question i would not suffer myself to reason upon; i would not trust my mind with it, lest it should preponderate in favor of self-interest, though against the common principles of truth and justice. i cannot think the army would accept the interposition; we ought, therefore, to be cautious how we trifle with the honor of other people. i do not pretend to say, that the persons intended to be relieved by the proposed scheme have not a claim against the united states; but i deny that it is a claim upon our equity or justice; it may be a claim upon our humanity; and, whether we will satisfy this claim, depends on circumstances which have no connection with the present question. mr. jackson.--god forbid, mr. chairman, that i should trifle with the honor of men i value, and esteem so highly; it would be the last thing i could think of. but, sir, as a legislator, i cannot consent that the pittance which was the reward of distinguished services, shall be torn from them by the arts of insidious speculators; but there are others, who have a claim in equity upon our justice, who ought not to be sacrificed to the soldier's honor. mr. white said he agreed with the gentleman from massachusetts (mr. sedgwick) in the principle, that if a contract is made for a valuable consideration, and with the understanding of both parties, the legislature ought not to interfere in it; and should it appear that the transaction between the original holders of certificates and the purchasers was a fair one, the dispute, in his mind, was at an end. but no gentleman had attempted to show that this was the case, though all the arguments against a discrimination were founded on that supposition. perhaps it might be said, that every argument ought to be considered as fair; unless the contrary be proved. but where one man has obtained the property of another to the amount of £ for £ , or £ s. the transaction must be explained to him, before he would believe it to be honest. what is the present case? the original holders, who have parted with the evidences of their debts, were principally common soldiers, militiamen, and farmers in indigent circumstances. who were the purchasers? the secretary of the treasury tells us, that the most enlightened among our citizens are the creditors of the united states; common soldiers cannot be comprehended in this description. what must have passed, he asked, between the soldier, the militiaman, or farmer, and the purchaser? what reason could the purchaser assign for offering £ for a paper which specified an obligation to pay £ ? it must be something like this--the states will never pay you; if they do, it will be at a very remote period, so long as to be useless to you; but to relieve your present necessities, i will take the risk on myself, and give you £ . now, could any enlightened man, he asked, in , or at any subsequent period, in which time the transfers took place, believe that the independence of america was in danger, or that the debts could not be provided for? he knew so many instances of transactions like that which he had stated, that he doubted not the greater part of the certificates had been obtained by similar means. indeed he could not conceive any other by which they could be obtained. he said we were, perhaps, without a precedent in any other nation which would be strictly applicable; but he desired gentlemen to determine for themselves, whether, under such circumstances, the man who had rendered services to his country should be deprived of his reward, or whether the purchaser ought to receive it. he said it was very different in the common transactions of life. if a man purchased a tract of land for £ , , paid the money, and took a bond for the conveyance, a third person, by informing the purchaser that the seller could not make a title, or by other false suggestions should obtain a transfer of the bond in consideration of £ , and get a conveyance and possession of the land, yet, on repaying the £ , the conveyance would be set aside, and he would be restored to his land. he gave some other instances of a similar nature, and said, he believed, if a bond, whether due, or to become due, was assigned under such circumstances, that the obligee would be justifiable in contesting it in a court of law, and that the injured person would, on application, obtain redress. he said, that in cases of extreme hardship, courts of equity would give relief without express proof of fraud; that this was the law of great britain, and was agreeable to the principles of the civil law; that the roman jurists, he believed, had fixed the point of extreme hardship to one half of the value of the property transferred; in england the court was to judge. he said he did not think the present holders were strictly entitled to any thing more than the original purchasers; that here the maxim, quoted on the other side of the question, that the assignee stands in the shoes of the assignor, properly applied. you cannot place another on more advantageous ground than that on which you stand yourself. the plea of an innocent purchaser could not take place; the nature of the transaction must appear evident to every man concerned in the transfer. he said the reverse of this did not hold. an assignee was not always in as advantageous a situation as the assignor; and instanced the case of an executor who should obtain the assignment of his testator's bond at an undervalue; and who, he said, could not retain in his hands the amount of the sum specified in the bond, which the creditor might have recovered, but only the sum which he actually paid for the bond. he said, that, though in his opinion the present holders of certificates were strictly entitled to no more than what had been paid to the original holders, yet, as an investigation of that circumstance would be involved in inextricable difficulties, and since we were (as had been very properly observed and well expressed by a gentleman from south carolina) settling the business of a family, he was willing to acquiesce in the motion of his colleague. he said, that arbitrators often gave the injured party less than his due, for peace sake; and he was willing to act on the same principle. he doubted not but courts of justice would give relief in particular cases; but in a matter of that magnitude, he thought the interference of the legislature very proper. the south sea business, he thought, in that respect, a good precedent. two gentlemen had mentioned the business; he would not say they had misstated the transaction, but he thought their accounts imperfect. they said they had the documents under their hands; he wished they had been read; he had them not, but would state from memory what he thought applicable to the case in question. the directors of the south sea company, by various arts, induced the people to give as high as £ , for £ stock; in many instances the money was paid, in others it was contracted to be paid. a gentleman has said, that parliament interfered, not to violate, but to perfect the contract: but what did parliament do? they confiscated the estates of the directors, and applied the amount to the relief of those who had actually paid their money, and suspended suits against those who had not paid; and authorized the debtors to discharge their debts by the payment of ten per cent. on the real value of the stock subscribed for. but if he was wrong in supposing the present holders ought to stand in the place of the first purchasers, they could be considered only as having purchased, in market, a paper of indefinite value; if, then, they get the highest market price, they are not injured. he would now endeavor to obviate some of the objections to the measure, on account of its impracticability; and in general terms observed, that much greater pains had been taken to show the impracticability than the injustice of it. he said, if it was just, we ought to adopt it; and he did not doubt but the wisdom of the legislature would be able to carry it into effect. purchasers, he said, had been represented as the supporters of public credit; but he could not consider them in that light. the offering a tenth or an eighth part of the value of the bond of an individual would tend rather to blast his credit than to support it; it would have the same effect with respect to the public. he said he had lived long enough to be convinced that wise and great men, having the same object in view, often differ in opinion with respect to the means of accomplishing it; therefore, every proposition ought to be treated with candor and respect. he made that observation in consequence of what passed yesterday. a gentleman from massachusetts had introduced his speech in a manner somewhat new--with an apology for an impropriety which he _intended to commit_. he pursued the arguments of those who went before him, in opposition to the amendment; but his speech consisted principally in an effusion of opprobrious epithets, some of which he repeated, and said, to detail the whole would perhaps fill half a column of a newspaper. he said he felt, on the occasion, not for himself, for he had not expressed his sentiments on the subject under debate, but for the honor of the house, in which, he thought, no such language ought to be used. it had been said we came forward as volunteers; that the original holders did not put in their claim. that might be easily accounted for; they were generally obscure and indigent; had too much modesty, or perhaps not the capacity, to come forward. that he believed the crowd in the gallery did not consist of original holders. mr. hartley.--i do not wish to trespass upon the time of the committee, but i cannot consent to give a silent vote on this occasion. i mean, however, to confine myself to a few observations, as many of my ideas have been communicated by other gentlemen. the honorable gentleman from south carolina (mr. smith) has anticipated much of what i had to urge; i shall therefore reduce my view of the subject to two points; first, as to the justice or legality of the measure, in obliging a creditor, or assignee, to take less than a certificate expresses, and pay the difference to another: second, as to the practicability or policy of the motion and its consequences. as to making further satisfaction to the officers and soldiers of the late army, who have sold their certificates for an inconsiderable sum, and who have in consequence reaped a less reward than the government contracted for, and intended them, i conceive it has nothing to do with the present question. however, if there is a disposition in congress to make a further compensation to those brave and meritorious men, i would be among the first to support the measure; but i think this a subject too momentous to be involved collaterally in the question now under consideration. with respect to the first point that offers itself, i have to remark, that a man who enters into a contract should know the consideration, and understand the principles upon which it is made, and these should be expressed on the face of the evidence of the contract. now, if this contract be of a negotiable nature, the person to whom the same is offered, looks on its face, from which it discovers the _agrementum_, and is naturally led to consider the circumstances of the debtor, his ability and integrity. suppose even the evidence of the contract to be obtained by fraud, unless it be against the express provision of a statute, and is transferred to a third person for a valuable consideration, without notice of fraud, it, must be paid. a fraud in any link of the chain is corrected by a _bona fide_ transfer for a valuable consideration, without a knowledge of that circumstance by the purchaser. now, let us apply these principles to the present case. here is an instrument of writing, specifying a debt to be due from the united states to the original holder, or bearer; this being brought into market, is offered to a third person, he, before his purchase, sees that the contract was executed in consequence of a consideration, and not against any positive statute; he then inquires the ability of the union, and its disposition to comply with the contract; and, from a consideration of these circumstances, he concludes, with respect to his own interest and safety in the purchase, and pays what is conceived to be the value. what is there to discharge the government from the payment? is it pretended that the services and supplies were an inadequate compensation? if it even was so supposed, it would not authorize us to refuse a compliance with our engagements; any interference would set afloat the great principle upon which the public tranquillity and happiness depend. this leads me to consider the subject in my second point of view, with respect to its policy and practicability, and the consequences that would result from the attempt. there are but few original holders who have transferred, that can be found; of consequence, you would throw the major part of the debt into an intricate labyrinth. the present possessor would be shifting back the certificate to the original holder, as far as a latitude is given. many persons who were bare trustees, would be reaping advantages, and drawing money from the public treasury, to which they are not entitled; oaths would be multiplied on oaths; perjuries on perjuries; fraud upon fraud; and every species of speculation would ensue; deception would be a strong trait in the character of the times, and the whole of the united states would be in motion, each endeavoring to prey upon the other. the consequences of a second inundation of this nature are to be dreaded, and ought to be carefully avoided. mr. moore observed, that it was agreed on all hands, and proposed in the report of the secretary, that some discrimination ought to take place. it was, therefore, incumbent on the house to inquire how this might be effected with the greatest degree of equity. he supposed the result would be, that we are at liberty to pay the most meritorious first. who constituted this class of citizens? he trusted the late army had an incontrovertible title to it. he could never believe that the men who stripped the soldiers of their hard earnings, by allowing them a tenth of their claim, would have the temerity to pretend that they had acquired the title of merit with their money, and that the soldier relinquished, with his certificate, the honor of his corps. had the present question been agitated in the hour of distress, when an army was essential to our defence, the arguments of justice and equity would have had their weight. perhaps it is the soldier's misfortune, that the question arises at a time when the object for which he was employed is secured. but notwithstanding all that has been said, i am fully convinced that his claim is insuperable in equity. the soldier did not engage to fight your battles to be compensated with a certificate, acknowledging you were indebted to him; it was specie you promised, and specie he had a right to expect, or something equal to it in reality. the public faith was actually pledged to him for a compensation for his services; but will any one say the public faith was inviolably kept with him, when a certificate, worth but two shillings in the pound was forced upon him as specie? the poor soldier, thus situated, was followed by gangs of speculators, who endeavored to impose on his judgment by the relation of artful and insidious opinions of the public capacity and integrity in the discharge of these acknowledgments. the soldier, incapable of detecting the specious falsehood, swallows the bait, and becomes the easy prey of designing men. the people felt and resented the injuries thus perpetrated on those they esteemed; and i am much mistaken if the citizens of america do not still retain favorable impressions of the soldiers' services. a great deal has been said, with respect to public opinion on this question. it is impossible, perhaps, to ascertain the public mind with precision; but there is but one way in our power, that is, to suffer the subject to be suspended for the present session, and on our return, or the election of our successors, the public sentiment in this respect will be evinced; but if we are to determine the public mind from our own observation, i should not hesitate to say that nine out of ten would be in favor of a discrimination. the people would, on this principle, i conceive, submit cheerfully to the payment of those taxes which are requisite to discharge the public engagements; but if they are to flow into the large cities, or into the hands of foreigners, who have speculated upon the misfortunes of the most meritorious class of our citizens, they will bear the burthen with murmurs and complaints. can any principle of justice demand the payment of the present possessor of a certificate, that does not apply more forcibly as it respects original holders? will gentlemen, then, comply with the one, and neglect the other? or rather, as my colleague has proposed, if they are incapable to pay both, will they not prefer a composition? mr. wadsworth.--it appears to me that we have mistaken this business from the beginning, for we are proceeding as if it was taken for granted that all those who had alienated their certificates, have been compelled to it by necessity; there is nothing further from the truth. so far as it respects the army debt it may be just; and at this moment, were a soldiery to be paid in certificates, they would part with them at as great a discount as ever. there is a disposition in soldiers generally to despise pecuniary considerations; if they want money, they will dispose of their property at an inconsiderate value to obtain it. but this remark does not extend to the industrious part of the public creditors, because they have carefully retained the evidences of their debt, and now will receive its value. but even of the army, it is not true that they will suffer the loss of the discount at which their certificates have been sold. having an opportunity of being well acquainted with the circumstances of the army, i know that many of the officers lived upon their friends, who supported them from time to time, with such sums as they had occasion for, and when they retired from the army, they repaid their friends with the certificates which they had received. the best way for gentlemen to ascertain the amount of the public debt which has been transferred from necessity, is to mix in the world, and try, from the circle of their acquaintance, to learn what the actual transfers have been. i have done this, and am conscious within myself, that seven-eighths of all the alienated debt has not been disposed of by the original holder from necessity. when the requisitions of congress were rejected by the state assemblies, some of the most wealthy persons of the community, and those most violently opposed to continental measures, seemed to concur in the opinion, that the states would never raise a revenue for the purpose of paying the domestic debt. the people finding this a prevailing opinion, were impressed with a dread of its consequences, and sold this species of negotiable property at a rate dictated by their apprehensions. i should conceive it as a great evil, if the government were now to restore to such persons what they lost for want of confidence. i think this circumstance will operate considerably against the gentleman's principle of equity; now, as to the practicability of the measure, those gentlemen who are acquainted with the history of the manner in which the public debt was contracted, will readily agree with me, that it is an insuperable objection. in the years and , very few advances were made to those who procured supplies to the public; they purchased what they got generally upon credit, and they were obliged, before their accounts could be settled, and they could get their money from the public treasury, to get receipts for all the articles they had furnished, and then they received orders upon the loan-officers, who, not having money, paid them in certificates, which these people, in return, paid over to those who furnished them with supplies. so that the agent appears a creditor to a very considerable amount, when his personal claim is very trifling, and those who risked their property, without pay of any kind, and who are undoubtedly deserving of some credit, appeared to be no other than speculators in public securities. i cannot see, in this case, any possible mode of discrimination. there are a variety of other official transactions which would demonstrate the impracticability, if it was necessary to oppose the proposition on that ground. wednesday, february . _public credit._ the house again went into a committee on the report of the secretary of the treasury, mr. baldwin in the chair. mr. madison's proposition still under consideration. mr. page.--i do not wish to trouble the committee with a formal argument in favor of the motion offered by my colleague; but i wish to inquire of the gentlemen in opposition, whether they conceive the principles upon which it is grounded to be unjust? i observed, that their replies have generally gone against the practicability of the measure; but that does not prove to me that it is inequitable. if there is justice in the case, we must not consider the difficulty of the attempt. i trust, if it shall be found to stand on the foundation of immutable justice, that its practicability will be demonstrated. however, i shall not enter on that ground, but leave it to my colleague, who has so ably supported it on the other. i would, however, beg gentlemen to answer these questions, and show to my mind the injustice of the united states complying with their engagements made to the first holders of certificates, as far as the case, and their abilities, will permit. or where is the justice of doing more for the assignee than he, or his assignor, expected could or would be done? where is the breach of faith in government, if it pays its whole debt, with a justice, blended with mercy, resembling that of heaven itself, making impartial retribution among the children of men, on the great day of accounts? where is the propriety of branding a measure of this nature with epithets of infamy? or using such harsh expressions as have issued like a torrent from a gentleman on the other side of the house? so far am i from viewing the propositions through such a discolored medium, that i am induced to believe, if congress adopt it, they may submit its rectitude, and stand the decision, of not only a superior order of beings, but of the great judge of the universe, who is immutable truth itself. what will the assignee lose by the measure? he will lose nothing, but the sanguine expectation lately raised in his mind. where is the interference in contracts, when the proposition is to comply sacredly, as far as the case will admit, with the contract between the state and its creditors? is not the assignment of the certificates confirmed by the nation? does it not give to the assignee the very thing stipulated between the assignor and assignee, that is, whatever sum the government shall be pleased to pay for the certificate? and is not the sum now proposed, more than either the first or last assignee ever contemplated, till within a few days past, would ever be paid him? the time is now arrived when justice ought to be done; it is looked for, with anxious expectation, by all classes of our fellow citizens; it will not avail us to say, it is impracticable, until experience has demonstrated it to be so. but the measure we contend for is termed an _ex post facto_ law, and as such, is declared to be unconstitutional. gentlemen torture every thing, in order to produce evidence against an act of justice. how can it be such an _ex post facto_ law as is prescribed by the constitution, when that expression is conjunctive with a bill of attainder? it relates to that only, and can have no reference to the subject of the proposition before us. the same idea, which prevents us from an interference on the present occasion, will prevent us, as was observed by the gentleman from georgia, from making a statute of limitation, or from correcting any frauds, which have been perpetrated on the unsuspicious soldiery. we must not contemplate the restoration of the starving soldier, with his humble wife and numerous and naked offspring, to a more eligible situation; we must not restore confidence to the man of honor who is buried in abject poverty, because it is addressing a language to the heart, which the haughtiness of the head disdains to hear; but, in doubtful cases of justice, the heart is the best director on this subject; happy will it be for us, if, as i think, they both concur to give their approbation to the present measure. thursday, february . _public credit._ the house again went into a committee on the secretary of the treasury's report, mr. baldwin in the chair. mr. madison's proposition still under consideration. mr. stone.--i shall not attempt to show the importance of the subject before us, as it relates to public credit; or as it will affect our character as a nation, at home and abroad. these have been explained; but it is proper for us to consider how far the amendment may operate to establish a precedent of continental and state legislation, the influence it may have on society, and the rules of civil conduct between man and man. every community must experience that the conduct of the government will influence the opinions of the individuals; and the spirit of the individual will transfuse itself into the government. this action and reaction operates more powerfully in a republican government, founded on representation, than on any other. our situation is made more important, on the present occasion, by a disagreement on principles which ought to be fixed and plain; to me it seems that we differ on the principle of public justice. this may be unfortunate--let us endeavor to be reconciled. if the true distinction between natural and civil justice be accurately drawn, we may annihilate the point in contest. agreeably to the principle of natural justice, no contract is perfect unless there be an equivalent; and that which we call a valuable consideration, on which to ground a contract, is founded on the idea of an equivalent, and presupposes it. and, i believe the idea of such a consideration being an equivalent, is the foundation of the validity of a contract, even in the english law; and is always carried into effect, wherever the execution is safe and certain; because i think, whenever it appears in any court of justice, that the consideration was not an equivalent, that then the contract is not carried into execution. the execution of the principle of natural justice then is safe; for instance, £ _s._ _d._ is not a consideration for £ , but a small sum may be a consideration for a valuable property; this does not arise from an infraction of the principle; but because the property may not have a determinate value in the society; and it would make judges arbitrary, legal proceedings extremely expensive, and contracts uncertain, if an extensive discretion as to the value was admitted. but whenever the consideration is so small and inadequate, as to appear so plainly and satisfactorily that the judge cannot be mistaken in determining it not to be an equivalent, there the contract is not valid. now, if we have received services from the soldier, and have given him paper, the question will be, whether that was an equivalent, and the paper a proper payment; or whether it is only an evidence of the debt? i take it to be a granted point that it was not a payment, but an obligation to pay whenever the united states should be able. it appears to me, then, that it was the duty of the person who received the paper, to wait a reasonable time; and the duty of the nation to make actual payment as speedily as possible. if the person who had received this paper had wantonly parted with it for nothing, i agree we should have been under no more obligation to pay him the expressed sum, than if we had paid him money, and he had flung it away or wasted it; but if, on the contrary, there was a delay in the execution of the contract, on the part of the government, which compelled him to part with it, a compensation is equitable. the same rule will apply between the original holder, or person who rendered the service, and present possessor or assignee; for shortness we will distinguish them by the names of soldier and speculator. the speculator, when he dealt with the soldier, must, from the nature of the thing, have induced him to believe that he gave him an equivalent for his purchase; and it might have been an inducement to the soldier to sell, to think he had something more than an equivalent; the speculator thought he had more than an equivalent, throwing necessity on the one side, and fraud on the other, out of the question. then the confidence was equal, perhaps not a penny between them: i can hardly conceive the exchange took place on any other terms. you never can allow the confidence of the speculator to be estimated very highly, perhaps at not more than one for ten. for if it is admitted, that the speculator had entire confidence, he was guilty of a palpable fraud, and a violation of the first principle of justice; it amounted to this, that he gave £ in money for £ bond, which he was certain would be paid. i believe, if the case stood exactly in this form, no man would hesitate in deciding its illegality. if a man takes £ for £ , it is illegal; but suppose there was a risk, and this risk was considered by the speculator as little less than ten for one, has he not discovered his own mistake when he sees he gets an interest of sixty per cent. on his capital; and that capital tenfold? this contract then ought to be void on the principle of a mistake; and here you place the speculator between scylla and charybdis. if he really thought the certificates only worth one for ten, you can give him no credit for his confidence; and you will admit that he ought to be satisfied with a reasonable advance on his purchase. but if you give him entire credit for his confidence in government, you must give him no credit for his honesty. if both parties had known of this event, the contract would never have taken place. if you pay the whole sum, the speculator ought to take no more than what he gave a fair equivalent for. gentlemen who seem afraid of giving to the soldier a part of his original claim, lest they affront his nobleness of soul, make no scruple to offer the speculator ten times the sum he is entitled to, on the principle of natural justice, without any apprehension that his honor will receive a wound. if the claim of the soldier was extinguished by receiving two shillings in the pound of the speculator, upon what principle is it contended that the latter should receive more than distributive justice? arguments, proving that the justice due to the first has been satisfied by what has been done, apply with greater force to the latter. it has been doubted, and a question has been agitated, whether we shall exercise the power of reconsidering these contracts, and whether a modification is constitutionally in our power? i will not go into this subject, or any other which ought to be taken for granted. i shall take it, that we are authorized, and do mean to interfere; you must act. do you mean to pay the principal and interest now due? i believe not. will you shelter yourself under the plea of necessity? that is impossible. i dare say, if the united states were sold, they would at least be worth six hundred millions of dollars; and we have but eighty millions to provide for. having, then, the means and power, i trust you mean to exercise them; and as you exercise them, you ought to exercise them as justly as possible; then, to do this, you will, it is said, personify the three parties concerned--the united states, the original holder, and the speculator. i do not clearly comprehend the idea of a personified state; perhaps it arises from my dulness of apprehension. man, in his natural capacity, is sometimes obliged to do what is considered unjust; but a state, when it has power, is not obliged to do what is unjust. the state, then, in this respect, is doing what an honest man would do, if he had the power of conducting this business as he thought proper. the speculator comes to you with his bond, and tells you it is due. the soldier tells you that he has done services to a considerable amount, for which he never has been paid; and that those evidences of the demand which you gave to him, were obtained from him, for one-tenth part of what they were declared to be worth. the state says to the speculator, you have made a great deal, and out of a man who has risked his life, and borne every burthen which human nature could bear, with the greatest fortitude which the most virtuous heart is capable of exerting, let him have a part back. the speculator answers no; here is your bond. consider again, replies the state, that the veteran's services, at the expense of his health and property, at the risk of his life, has saved you and yours; and not only that, but he is obliged to pay of your demand, more than he has ever received. what is now his answer? here is the bond, pay me my bond. under these circumstances, supposing the state an individual, he might, without much infamy to his character, exercise the power which he has over his own bond, in order to do justice between the parties. he might say to the speculator, you had the soldier in your power; you did him injustice; we have you now in our power, we will do you complete justice, but no more. a private man could never be injured in his reputation by such conduct: indeed, according to the result of these circumstances, the hardships of war, and the breach of contract, have unfortunately inflicted upon the man, the most meritorious in this community, or perhaps in any other community, sufferings and miseries--a punishment sufficient to atone for the guilt of the greatest crimes. this, in the event, appears to be the situation of the saviors of america. mr. _madison_ said that the opponents of his proposition had imposed on its friends not only a heavy task, by the number of their objections, but a delicate one by the nature of some of them. it had been arranged as an embarrassing measure which ought to be facilitated, and producing discussions which might end in disagreeable consequences. however painful it might be to contradict the wishes of gentlemen whom he respected, he could promise nothing more, in the present case, than his endeavors to disappoint their apprehensions. when his judgment could not yield to the propositions of others, the right to make and support his own, was a right which he could never suffer to be contested. in exercising it, he should study to maintain that moderation and liberality which were due to the greatness of the subject before the committee. he felt pleasure in acknowledging, that the like spirit had, in general, directed the arguments on the other side. free discussions thus conducted are not only favorable to a right decision, but to a cheerful acquiescence of the mistaken opponents of it. they might have the further advantage of recommending the result to the public, by fully explaining the grounds of it. if the pretensions of a numerous and meritorious class of citizens be not well founded, or cannot be complied with, let them see that this is the case, and be soothed, under their disappointment, with the proof that they have not been overlooked by their country. he would proceed now to review the grounds on which the proposition had been combated; which he should do without either following those who had wandered from the field of fair argument, or avoiding those who had kept within its limits. it could not have escaped the committee, that the gentlemen to whom he was opposed, had reasoned on this momentous question as on an ordinary case in a court of law; that they had equally strained all the maxims that could favor the purchasing, or be adverse to the original holder; and that they dwelt with equal pleasure on every circumstance which could brighten the pretensions of the former, or discredit those of the latter. he had not himself attempted, nor did he mean to undervalue the pretensions of the actual holders. in stating them, he had even used as strong terms as they themselves could have dictated; but beyond a certain point he could not go. he must renounce every sentiment which he had hitherto cherished, before his complaisance could admit that america ought to erect the monuments of her gratitude, not to those who saved her liberties, but to those who had enriched themselves in her funds. all that he wished was, that the claims of the original holders, not less than those of the actual holders, should be fairly examined and justly decided. they had been invalidated by nothing yet urged. a debt was fairly contracted; according to justice and good faith, it ought to have been paid in gold or silver; a piece of paper only was substituted. was this paper equal in value to gold or silver? no. it was worth, in the market, which the argument for the purchasing holders makes the criterion, no more than one-eighth or one-seventh of that value. was this depreciated paper freely accepted? no. the government offered that or nothing. the relation of the individual to the government, and the circumstances of the offer, rendered the acceptance a forced, not a free one. the same degree of constraint would vitiate a transaction between man and man, before any court of equity on the face of the earth. there are even cases where consent cannot be pretended; where the property of the planter or farmer had been taken at the point of the bayonet, and a certificate presented in the same manner. but why did the creditors part with their acknowledgment of the debt? in some instances, from necessity; in others, from a well-founded distrust of the public. whether from the one, or the other, they had been injured; they had suffered loss, through the default of the debtor; and the debtor cannot, in justice or honor, take advantage of the default. here, then, was a debt acknowledged to have been once due, and which was never discharged; because the payment was forced and defective. the balance, consequently, is still due, and is of as sacred a nature as the claims of the purchasing holder can be; and if both are not to be paid in the whole, is equally entitled to payment in part. he begged gentlemen would not yield too readily to the artificial niceties of forensic reasoning; that they would consider not the form, but the substance--not the letter, but the equity--not the bark, but the pith of the business. it was a great and an extraordinary case; it ought to be decided on the great and fundamental principles of justice. he had been animadverted upon, for appealing to the heart as well as the head; he would be bold, nevertheless, to repeat, that, in great and unusual questions of morality, the heart is the best judge. it had been said, by a member from massachusetts, that the proposition was founded on a new principle in congress. if the present congress be meant, that is not strange, for congress itself is new; if the former congress be meant, it is not true, for the principle is found in an act which had been already cited. after the pay of the army had, during the war, been nominally and legally discharged in depreciated paper, the loss was made up to the sufferers. it had been said, by a member from new york, that this case was not parallel, there being no third party like the present holders of certificates. this objection could not be valid. the government paid ten dollars' worth in fact, but only one to the soldier. the soldier was then the original holder. the soldier assigned it to the citizen; the citizen then became the actual holder. what was the event? the loss of the original holder was repaired, after the actual holder had been settled with, according to the highest market value of his paper. he did not mean, however, to decide on the whole merits of this last transaction; or to contend for a similitude, in all respects, between the two kinds of paper. one material difference was, that the bills of credit, by more frequent transfers, and by dividing the change of value among a greater number of hands, rendered the effect of less consequence to individuals, and less sensible to the public mind. but this difference, whatever force it might give to the claims of the purchasing holder of certificates, could diminish nothing from the claims of the original holders who assigned them. it had been said, by another member from massachusetts, that the old government did every thing in its power. it made requisitions, used exhortations, and in every respect discharged its duty; but it was to be remembered, that the debt was not due from the government, but the united states. an attorney, with full powers to form, without the means to fulfil engagements, could never, by his ineffectual, though honest efforts, exonerate his principal. he had been repeatedly reminded of the address of congress in , which rejected a discrimination between original and purchasing holders. at that period, the certificates to the army, and citizens at large, had not been issued. the transfers were confined to loan-office certificates, were not numerous, and had been, in great part, made with little loss to the original creditor. at present, the transfers extend to a vast proportion of the whole debt, and the loss to the original holders has been immense. the injustice which has taken place has been enormous and flagrant, and makes redress a great national object. this change of circumstances destroys the argument from the act of congress referred to; but if implicit regard is to be paid to the doctrines of that act, any modification of the interest of the debt will be as inadmissible as a modification of the principal. it had been said, that if the losses of the original creditors are entitled to reparation, congress ought to repair those suffered from paper money--from the ravages of the war, and from the act of barring claims not produced within a limited time. as to the paper money, either the case is applicable, or it is not: if not applicable, the argument fails; if applicable, either the depreciated certificates ought to be liquidated by a like scale, as was applied to the depreciated money; or the money, even if the whole mass of it was still in circulation, ought to be literally redeemed, like the certificates. leaving the gentleman to make his own choice of these dilemmas, he would only add, himself, that if there were no other difference between the cases, the manifest impossibility of redressing the one, and the practicability of redressing the other, was a sufficient answer to the objection. with respect to the towns burnt, and other devastations of war, it was taught, by the writers on the law of nations, that they were to be numbered among the inevitable calamities of mankind. still, however, a government owed them every alleviation which it could conveniently afford; but no authority could be found that puts on the same footing with those calamities, such as proceed from a failure to fulfil the direct and express obligations of the public. the just claims barred by the act of limitation, were, in his opinion, clearly entitled to redress. that act was highly objectionable. the public, which was interested in shortening the term, undertook to decide, that no claim, however just, should be admitted, if not presented within nine months. the act made none of the exceptions usual in such acts, not even in favor of the most distant parts of the union. in many instances, it had been absolutely impossible for the persons injured to know of the regulation. some of these instances were within his own knowledge. to limit the duration of a law to a period, within which it could not possibly be promulged, and then take advantage of the impossibility, would be imitating the roman tyrant, who posted up his edicts so high that they could not be read, and then punished the people for not obeying them. it has been said, that if the purchased certificates were funded at the rate proposed, they would fall in the market, and the holders be injured. it was pretty certain, that the greater part, at least, would be gainers. he believed that the highest market price, especially with the arrears of interest incorporated, well funded at six per cent, would prevent every loss that could justify complaint. but foreigners had become purchasers, and ought to be particularly respected. foreigners, he remarked, had themselves made a difference between the value of the foreign and domestic debt; they would, therefore, the less complain of a difference made by government here. it was his opinion that the term stated in the proposition would yield a greater profit to the foreign purchasers than they could have got for their money if advanced by them in any of the funds of europe. the proposition had been charged with robbing one set of men to pay another. if there were robbery in the case, it had been committed on the original creditors. but, to speak more accurately, as well as more moderately, the proposition would do no more than withhold a part from each of two creditors, where both were not to be paid the whole. a member from new york has asked whether an original creditor, who had assigned his certificate, could, in conscience, accept a reimbursement in the manner proposed? he would not deny that assignments might have been made with such explanations, or under such circumstances, as would have that effect; but, in general, the assignments have been made with reference merely to the market value, and the uncertainty of the steps that might be taken by the government. the bulk of the creditors had assigned under circumstances from which no scruples could arise. in all cases where a scruple existed, the benefit of the provision might be renounced. he would, in turn, ask the gentleman, whether there was not more room to apprehend that the present holder, who had got his certificate of a distressed and meritorious fellow-citizen for one-eighth or one-tenth its ultimate value, might not feel some remorse in retaining so unconscionable an advantage? similar propositions, it was said, had been made and rejected in the state legislatures. this was not a fact. the propositions made in the state legislatures were not intended to do justice to the injured, but to seize a profit to the public. but no petitions for redress had come from the sufferers. was merit, then, to be the less regarded, because it was modest? perhaps, however, another explanation ought to be given. many of the sufferers were poor and uninformed. those of another description were so dispersed, that their interests and efforts could not be brought forward. the case of the purchasing holders was very different. the constitutionality of the proposition had been drawn into question. he asked whether words could be devised that would place the new government more precisely in the same relation to the real creditors with the old? the power was the same; the obligation was the same. the means only were varied. an objection had been drawn from the article prohibiting _ex post facto_ laws. but as _ex post facto_ laws relate to criminal, not civil cases, the constitution itself requires this definition, by adding to a like restriction on the states an express one against retrospective laws of a civil nature. it had been said, that foreigners had been led to purchase, by their faith in the article of the constitution relating to the public debts. he would answer this objection by a single fact: foreigners had shown, by the market price in europe, that they trusted the nature of foreign debt more under the old government, than the nature of the domestic debt under the new government. objections to the measure had been drawn from its supposed tendency to impede public credit. he thought it, on the contrary, perfectly consistent with the establishment of public credit. it was in vain to say, that government ought never to revise measures once decided. great caution on this head ought, no doubt, to be observed; but there were situations in which, without some legislative interposition, the first principles of justice, and the very ends of civil society, would be frustrated. the gentlemen themselves had been compelled to make exceptions to the general doctrine; they would probably make more before the business was at an end. it had been urged, that if government should interpose in the present case, as interposition would be authorized in any case whatever where the stock might fluctuate, the principle would apply as well to a fall of sixty or seventy per cent. as to a fall of six hundred or seven hundred per cent. he could not admit this inference. a distinction was essential between an extreme case, and a case short of it. the line was difficult to be drawn; but it was no more incumbent on him than on his opponents to draw it. they themselves could not deny that a certain extremity of the evil would have justified the interposition. suppose that the distress of the alienating creditors had been ten times as great as it was; that instead of two, three, and four shillings in the pound, they had received a farthing only in the pound; and that the certificates lay now in the hands of the purchasers in that state, or even at a less value, was there a member who would rise up and say, that the purchasers ought to be paid the entire nominal sum, and the original sufferer be entitled to no indemnification whatever? gentlemen had triumphed in the want of a precedent to the measure. no government, it was said, had interposed to redress fluctuations in its public paper. but where was the government that had funded its debts under the circumstances of the american debt? if no government had done so, there could be no precedent either for or against the measure, because the occasion itself was unprecedented. and if no similar occasion had before existed in any country, the precedent to be set would at least be harmless, because no similar occasion would be likely to happen in this. if gentlemen persisted, however, in demanding precedents, he was happy in being able to gratify them with two, which, though not exactly parallel, were, on that account, of the greater force, since the interposition of government had taken place where the emergency could less require them. the first was the case of the canada bills. during the war which ended in , and which was attended with a revolution of the government in canada, the supplies obtained for the french army in that province were paid for in bills of exchange and certificates. this paper depreciated, and was bought up chiefly by british merchants. the sum and the depreciation were so considerable as to become a subject of negotiation between france and great britain at the peace. the negotiations produced a particular article, by which it was agreed by france that the paper ought to be redeemed, and admitted by great britain that it should be redeemed at a liquidated value. in the year this article was accordingly carried into effect by ministers from the two courts, which reduced the paper in the hands of the british holders, in some instances, as much as seventy-five per cent. below its nominal value. it was stated, indeed, by the reporter of the case, that the holders of the paper had themselves concurred in the liquidation; but it was not probable that the concurrence was voluntary. if it was voluntary, it shows that they themselves were sensible of the equity of the sacrifice. the other case was of still greater weight, as it had no relation to war or treaty, and took place in the nation which has been held up as a model with respect to public credit. in the year , the civil list of great britain had fallen into arrears to the amount of £ , . the creditors who had furnished supplies to the government had, instead of money, received debentures only from the respective officers. these had depreciated. in that state, they were assigned in some instances; in others, covenanted to be assigned. when the parliament appropriated funds for satisfying these arrears, they inserted an express provision in the act, that the creditors who had been obliged, by the default of government, to dispose of their paper at a loss, might redeem it from the assignees by repaying the actual price, with an interest of six per cent., and that all agreements and covenants to assign should be absolutely void. here then was an interposition on the very principle, that a government ought to redress the wrongs sustained by its default, and on an occasion trivial when compared to that under consideration; yet it does not appear that the public credit of the nation was injured by it. the best source of confidence in government was the apparent honesty of its views. the proposition could not possibly be ascribed to any other motive than this, because the public was not to gain a farthing by it. the next source was an experienced punctuality in the payments due from the government. for this support to public credit, he relied on what had been experienced by a part of the foreign creditors; on the provision to be made for the residue; and on the punctuality which, he flattered himself, would be observed in all future payments of the domestic creditors. he was more apprehensive of injury to public credit from such modifications of the interest of the public debt as some gentlemen seemed to have in view. in these the public would be the gainer, and the plea of inability the more alarming, because it was so easy to set up, so difficult to be disproved, and for which, consequently, the temptations would be so alluring. mr. seney rose and observed, that it was with reluctance he attempted to express to the committee his ideas upon a question which had been so fully and ably discussed. however, as it had been expected that gentlemen would not, in a case of such magnitude, be content with merely a silent vote, he rose to declare the reasons upon which his decision was founded. in doing this, he hoped that he should not use epithets which might be deemed harsh, or language which would be offensive; that although the sentiments of other members should differ from his, he wished so far to respect those sentiments as to treat them with decency. he considered the proposition of the gentleman from virginia (mr. madison) was designed to effect two purposes: the one, a compensation to the original creditors, who, during the late war, in times of distress, had loaned money, furnished supplies, and rendered military services; and who had only received satisfaction therefor in paper of inconsiderable value, forced on them by the public, and depreciated by their acts. this class of citizens, he conceived, had a just and equitable claim for the full difference in value between that paper, when paid, and specie. the other object of the proposition alluded to, was, he said, to compensate those creditors who now hold alienated certificates. each description of those creditors had, in his opinion, claims on the public. the first was founded on an original contract between them and the government, part of which only had been complied with, and the residue still remained undischarged. the other was grounded on having possession of the paper which contained the promise to pay. it has been contended that the united states have not ability to pay both. in this case a question arises: what is, upon the whole, most just and expedient? some gentlemen contend, that it is incumbent on us to make full provision for those who hold the assigned certificates, without any for the original creditors who have alienated them. others think, that the misfortune of government, in this respect, should not be felt by either class solely, but be borne by both. that it is more just to adopt a mode of composition, by which those creditors should mutually share in this misfortune, and be mutually benefited by a provision within our power to make; with those his sentiments accorded. he could not be impressed with the justice or reason of a measure calculated to make a total sacrifice of one class of creditors, and full payment to the other class. such a step could not, in his opinion, be justified in any distinction or precedence which existed in their claims. when it was considered that the original creditors furnished money and supplies, and rendered services essential to the preservation of their country, and at a time when its liberties were invaded, and every thing which can be dear to freemen was in jeopardy and at stake, he could not apprehend that their claims would be deemed inferior to those of their rivals. in his opinion, these circumstances entitled them to superior notice. believing, however, that the amendment under consideration would, upon the whole, effect more substantial justice than any other practicable scheme that had been proposed to the committee, or which he had heard of, his assent would, therefore, be given to it. tuesday, february . _public credit._ the house again went into a committee on the report of the secretary of the treasury, mr. baldwin in the chair. mr. madison's proposition still under consideration. mr. livermore said he was against any discrimination between the soldier and other public creditor, who held a public security, made payable to bearer, and consequently transferable, with intent that they might be sold, if convenience or necessity should require it. this had been understood by all parties, as well in america as in foreign countries, and they had been sold accordingly. the advocates for discrimination have not denied this; they have only alleged that the low rate at which the poor soldier or other public creditor had sold his securities was a sufficient reason for congress to interfere and set aside the sale. in opposition to this, he observed, that persons had a right to buy and sell at such prices as they could mutually agree upon, provided there was no fraud. a diamond, a horse, or a lot of ground, might be sold too cheap, or too dear, and so might any other property; but government could not interfere without destroying the general system of law and justice. esau had sold his birthright for a mess of pottage, and heaven and earth had confirmed the sale. the distresses of the army, both officers and soldiers, at the time they received and sold their securities, had been painted in too strong colors. they were not so emaciated by sickness and famine as had been represented. they were crowned with victory, and received with applause by their fellow-citizens; and although they had been paid in paper, their loss had been made up by large bounties, and in other emoluments; so that, in point of property, they were equal to their fellow-citizens who had borne the burden of taxes under which many are laboring to this day. let them be called brave soldiers, patriotic soldiers, but not poor soldiers. they ought to be governed by the same system of justice that governs others; but their contracts ought not to be set aside out of partiality to them. the case quoted from the statute of queen anne is not applicable to this case, inasmuch as government had not originally made the debentures therein mentioned transferable. neither did the case of the canada bills apply; for, as he understood, those bills were paid to british merchants and to others who had purchased them. mr. madison.--if paper, or the honor of statues or medals can discharge the debts of justice, payable in gold or silver, we can not only exonerate ourselves from those due to the original holders, but from those of the assignees. so far as paper goes, the latter have received the compensation. if honor can discharge the debt, they have received civil honors; look around to the officers of every government in the union, and you find them sharing equal honors with those bestowed on the original creditors. but, sir, the debt due in gold and silver is not payable either in honor, appointments, or in paper. gentlemen say it will work injustice; but are we not as much bound to repair the injustice done by the united states? yet i do not believe the assertion has been established by any thing that has been urged in its support. the gentleman from maryland (mr. stone) acknowledges that there is a moral obligation to compensate the original holders; how will they get what he admits is their due? he is willing to make an effort, by applying the resources of the country to that purpose; but if we are to judge by the sentiments of other gentlemen who have spoken on this occasion, we have little to expect from that quarter. suppose the debt had depreciated to a mere trifle, and suppose the sale of the western territory had extinguished the certificates, let me ask, whether, if the united states had thus exonerated themselves from the obligation to the assignee, whether the claim of the original holder would not still remain in its full force in a moral view? but believing the point of justice to be exhausted, i will just add one remark upon the practicability. the transferred certificates, generally, will show the names of the original holders, and here there is no difficulty. with respect to those granted to the heads of either of the five great departments, the books of the treasurer of loans, as well as the accounts of those departments now in the treasury, will designate, with a great degree of accuracy, and this may be followed up by the usual mode of obtaining evidence; and i believe every security may be provided against fraud in this case that was provided in the case of the commissioners who were sent into the respective states for ascertaining and liquidating the claims of individuals. that there will be some difficulty i admit, but it is enough for me that it is not insuperable; and i trust, with the assistance which the cause of equity and justice will ever obtain from the members of the national legislature, they will easily be surmounted. monday, february . _public credit._ the house then resolved itself into a committee on the report of the secretary of the treasury, mr. baldwin in the chair. mr. madison's proposition still under consideration. mr. page.--as the worthy and eloquent member who replied to me did not answer the questions i put to the committee, i suppose, he either did not hear them, did not understand me, or could not answer them. i hope, before the committee decide, they will attempt at least to resolve them. i asked, where is the injustice of the state's complying with its engagements made to the first holders of certificates as far as the case admits? where is the justice of doing more for the assignee than he or his assignor expected could or would be done? where is the breach of faith in government, if it paid its whole debt with justice, blended with mercy? where is the interference in contracts, when the proposition is to comply sacredly, as far as the case will admit, with the contracts between a state and its creditors? i asked, is not the assignment of certificates confirmed by the motion? does it not give to the assignee the very thing stipulated to be given, that is, whatever sum government shall be pleased to pay for the certificates, for that was the condition of the assignment? and is not the sum now proposed more than either the first or last holder, till within these few days, supposed would be paid him? i asked also, ought not an honest assignee to be pleased that government intends to do that justice to his assignor which he ought to do himself, were the whole payment made to him? i asked, of what is the assignee deprived but of his late sanguine expectations? i asked, whether the proposition before us does not rather establish confidence in government than the contrary? for, sir, to make use of the comparison which has been often made here between the state and an obligor on a bond, what could give more credit to any man's bonds than to find that, though they had depreciated to half a crown in the pound, he paid the whole twenty shillings; ten shillings to the assignee, who had given but two shillings and sixpence, and ten to the obligee who had sold at so great a loss? it is true congress may, consistently with the rules of common law courts, pay the bearer and take no notice of the creditors; but were a court of equity instituted to decide on the case of certain speculators, how would they decide? government, in the most solemn manner, pledged itself to make compensation to the soldiers, have they done it? instead of doing this, certain persons, who took advantage of their ignorance and their poverty, bought up the evidence of their debt at one-eighth of the nominal value; and in some states these very men had drawn what constituted the principal of the purchase with six per cent. interest in three years. in what does the case differ between the depreciated paper and the certificates? paper money was redeemed at forty for one, as well to the last as the first holder; the same principle would lead to give the last holder of the certificate the depreciated value at which he bought it. but we propose to work no injustice, we give the first holder, if he is the holder still, the full value stipulated. it would not be injustice to consider the assignee, as having paid what he advanced, in consequence of his confidence in government, on account of that government; and that the government ought to repay him what he so advanced; having repaid that sum, the balance ought to go to the credit of the assignee. i am willing, on this consideration, to call the speculator the friend and supporter of the government, who kindly lent us when in need, two shillings and sixpence in every pound, to advance to the poor soldier. if certificates are the evidence of the debt, it proves, sir, that the balance is due to him in whose name it issued. this is the day of payment, and we must pay accordingly; and here permit me to remark, in reply to the observation of the gentleman from new hampshire, (mr. livermore,) that _jacob_ was punished for his fraud, but for his faith enjoyed the promise; even so let us regard those who had so much confidence in us as to advance two shillings and sixpence to the distressed soldier. mr. heister was in hopes this question would be postponed for the present, in order to go into a consideration of the ways and means: when, if it appeared that the united states were incapable of making full provision, it might be considered, whether one deviation would not authorize the other? if any gentleman would make a motion to that effect, he would second him. the question was now taken on mr. madison's proposition for a composition, and it passed in the negative; yeas , nays .[ ] wednesday, march . _on slavery._ the house again resolved itself into a committee of the whole on the report of the committee, to whom was referred the memorial of the people called quakers, &c., mr. benson in the chair. the question of order was put, when it was determined that mr. tucker's last amendment was not in order. the report was then taken up by paragraphs. the first proposition being read, mr. white moved that it be struck out. he did this, he said, because he was against entering into a consideration at this time of the powers of congress. he thought it would be time enough for this when the powers are called in question. he then read the next, which he said was entirely unnecessary, as it contains nothing more than what is contained in express terms in the constitution. he passed on to the third, which he said was equally unnecessary; and to the fourth, which was provided for by the constitution. he said, that he should agree to the fifth and sixth, with certain modifications. agreeable to this idea, he offered those two in a different form. he disagreed to the seventh proposition, as unnecessary and improper. he concluded by observing, that his wish was to promote the happiness of mankind--and among the rest those who are the objects of the present consideration--but this he wished to do in conformity to the principles of justice and with a due regard to the peace and happiness of others; he would contribute all in his power to their comfort and well-being while in a state of slavery; but he was fully of opinion that congress has no right to interfere in the business, any further than he proposed by the two propositions as modified. he did not, however, anticipate the difficulties from a total prohibition which some gentlemen seem to apprehend--and if congress had it in their power to interdict this business at the present moment, he did not think the essential interests of the southern states would suffer. twenty years ago, he supposed the idea he now suggested would have caused universal alarm. virginia, however, about twelve years since, prohibited the importation of negroes from africa, and the consequences apprehended never were realized; on the contrary, the agriculture of that state was never in a more flourishing situation. mr. hartley.--i have the honor to be one of the committee on the memorials, and will, with the leave of this committee, mention some particulars which took place in the course of the investigation of the business. he premised that he was sorry that the question of right had been brought forward yesterday--and was not a little surprised to hear the cause of slavery advocated in that house, and language held towards the petitioners which his experience had never shown to be parliamentary--he read some memorandums taken in committee, and had particular reference to a law passed in grenada, which he applauded for its humanity, and truly benevolent spirit. he reprobated the illiberal treatment which the memorialists had received, and asserted that they were friends to the constitution, and that on the present occasion they came forward from the most laudable motives, from a wish to promote the happiness of mankind; that their conduct, so far from meriting censure, deserved, and would receive, the applause of the civilized world. mr. brown, in a considerable speech, advocated the motion of mr. white. he enlarged on the pernicious consequences that may be expected to flow from the interference of congress; he pointed out the effects which had resulted from the interposition of the quakers, by which the prospects of the southern states in slaves had been rendered very precarious--and if congress should adopt the report as it stands, the consequences would be pernicious in the highest degree. the negro property will be annihilated. the emancipation of slaves will be effected in time, it ought to be a gradual business; but he hoped that congress would not, to gratify people who never had been friendly to the independence of america, precipitate the business to the great injury of the southern states. mr. burke entered into a very extensive consideration of the subject. he gave an account of the humane treatment which the slaves of the southern states received, their habitations, families, children, privileges, &c. he then showed that their emancipation would tend to make them wretched in the highest degree. he animadverted with great freedom on the past and present conduct of the quakers. he denied that they were the friends of freedom; he said, that during the late war, they were for bringing this country under a foreign yoke; they descended to the character of spies; they supplied the enemy with provisions; they were guides and conductors to their armies; and whenever the american army came into their neighborhood, they found themselves in an enemy's country. mr. burke was proceeding in this strain, when he was interrupted by being called to order. a warm altercation ensued, and in the midst of it, a motion was made that the committee rise. this motion was negatived, and mr. burke added a few more observations on the injustice of the measure of interference, as it respected the property of the southern states. mr. smith (of south carolina) said he lamented much that this subject had been brought before the house; that he had deprecated it from the beginning, because he foresaw that it would produce a very unpleasant discussion; that it was a subject of a nature to excite the alarms of the southern members, who could not view, without anxiety, any interference in it on the part of congress. he remarked, that as they were resolved into a committee of the whole on the powers of congress respecting slavery and the slave trade, in consequence of certain memorials from the people called quakers and the pennsylvania society for the abolition of slavery, the whole subject, as well as the contents of these memorials, was under consideration. he should therefore enter into the business at large, and offer some comments on the contents of the memorial. the memorial from the quakers contained, in his opinion, a very indecent attack on the character of those states which possess slaves. it reprobates slavery as bringing down reproach on the southern states, and expatiates on the detestation due to the licentious wickedness of the african trade, and the inhuman tyranny and bloodguiltiness inseparable from it. he could not but consider it as calculated to fix a stigma of the blackest nature on the state he had the honor to represent, and to hold its citizens up to public view as men divested of every principle of honor and humanity. considering it in that light, he felt it incumbent on him not only to refute those atrocious calumnies, but to resent the improper language made use of by the memorialists. before he entered into the discussion, he begged to observe, that when any class of men deviated from their own religious principles, and officiously came forward in a business with which they had no concern, and attempted to dictate to congress, he could not ascribe their conduct to any other cause but to an intolerant spirit of persecution. this application came with the worst grace possible from the quakers, who professed never to intermeddle in politics, but to submit quietly to the laws of the country. he had met with a publication which came out in the year , (at a period when the affairs of america were in a very desponding situation,) entitled "the ancient testimony and principles of the quakers." it set forth that their religious principles restrained them from having any hand or connivance in setting up and putting down kings and governments; that this was god's peculiar prerogative for causes best known to himself; that it was not their business to be busybodies above their stations, but only to pray for the king and safety of their nation, that they might live a quiet and peaceable life, under the government which god was pleased to set over them. if these were really their sentiments, why did they not abide by them? why did they not leave that, which they call god's work, to be managed by himself? those principles should instruct them to wait with patience and humility for the event of all public measures, and to receive that event as the divine will. their conduct on this occasion proved that they did not believe what they professed, or that they had not virtue enough to practise what they believed. did they mean to rob the almighty of what they call his prerogative? and were they not partial ministers of their own acknowledged principles? it was difficult to credit their pretended scruples; because, while they were exclaiming against the mammon of this world, they are hunting after it with a step steady as time, and an appetite keen as the grave. the memorial from the pennsylvania society applied, in express terms, for an emancipation of slaves, and the report of the committee appeared to hold out the idea that congress might exercise the power of emancipating after the year ; for it is said that congress could not emancipate slaves prior to that period. he remarked, that either the power of manumission still remained with the several states, or it was exclusively vested in congress; for no one would contend that such a power would be concurrent in the several states and the united states. he then showed that the state governments clearly retained all the rights of sovereignty which they had before the establishment of the constitution, unless they were exclusively delegated to the united states; and this could only exist where the constitution granted, in express terms, an exclusive authority to the union, or where it granted in one instance an authority to the union, and in another prohibited the states from exercising the like authority, or where it granted an authority to the union, to which a similar authority in the states would be repugnant. he applied these principles to the case in question; and asked, whether the constitution had, in express terms, vested the congress with the power of manumission? or whether it restrained the states from exercising that power? or whether there was any authority given to the union, with which the exercise of this right by any state would be inconsistent? if these questions were answered in the negative, it followed that congress had not an exclusive right to the power of manumission. had it a concurrent right with the states? no gentleman would assert it, because the absurdity was obvious. for a state regulation on the subject might differ from a federal regulation; in which case one or the other must give way. as the laws of the united states were paramount to those of the individual states, the federal regulations would abrogate those of the states, consequently the states would thus be divested of a power which it was evident they now had, and might exercise whenever they thought proper. but admitting that congress had authority to manumit the slaves in america, and were disposed to exercise it, would the southern states acquiesce in such a measure without a struggle? would the citizens of that country tamely suffer their property to be torn from them? would even the citizens of the other states, which did not possess this property, desire to have all the slaves let loose upon them? would not such a step be injurious even to the slaves themselves? it was well known that they were an indolent people, improvident, averse to labor: when emancipated, they would either starve or plunder. nothing was a stronger proof of the absurdity of emancipation than the fanciful schemes which the friends to the measure had suggested; one was, to ship them out of the country, and colonize them in some foreign region. this plan admitted that it would be dangerous to retain them within the united states after they were manumitted: but surely it would be inconsistent with humanity to banish these people to a remote country, and to expel them from their native soil, and from places to which they had a local attachment. it would be no less repugnant to the principles of freedom, not to allow them to remain here, if they desired it. how could they be called freemen, if they were, against their consent, to be expelled from the country? thus did the advocates for emancipation acknowledge that the blacks, when liberated, ought not to remain here to stain the blood of the whites by a mixture of the races. another plan was to liberate all those who should be born after a certain limited period. such a scheme would produce this very extraordinary phenomenon, that the mother would be a slave and her child would be free. these young emancipated negroes, by associating with their enslaved parents, would participate in all the debasements which slavery is said to occasion. but allowing that a practicable scheme of general emancipation could be devised, there can be no doubt that the two races would still remain distinct. it is known, from experience, that the whites had such an idea of their superiority over the blacks, that they never even associated with them; even the warmest friends to the blacks kept them at a distance, and rejected all intercourse with them. could any instance be quoted of their intermarrying; the quakers asserted that nature made all men equal, and that the difference of color should not place negroes on a worse footing in society than the whites; but had any of them ever married a negro, or would any of them suffer their children to mix their blood with that of a black? they would view with abhorrence such an alliance. mr. s. then read some extracts from mr. jefferson's notes on virginia, proving that negroes were by nature an inferior race of beings; and that the whites would always feel a repugnance at mixing their blood with that of the blacks. thus, he proceeded, that respectable author, who was desirous of countenancing emancipation, was, on a consideration of the subject, induced candidly to avow that the difficulties appeared insurmountable. the friends to manumission had said, that by prohibiting the further importation of slaves, and by liberating those born after a certain period, a gradual emancipation might take place, and that in process of time the very color would be extinct, and there would be none but whites. he was at a loss to learn how that consequence would result. if the blacks did not intermarry with the whites, they would remain black to the end of time; for it was not contended that liberating them would whitewash them; if they would intermarry with the whites, then the white race would be extinct, and the american people would be all of the mulatto breed. in whatever light, therefore, the subject was viewed, the folly of emancipation was manifest. he trusted these considerations would prevent any further application to congress on this point, and would so far have weight with the committee as to reject the clause altogether, or at least to declare, in plain terms, that congress has no right whatever to manumit the slaves of this country. various objections, said he, had at different times been alleged against the abominable practice, as it had been called, of one man exercising dominion over another; but slavery was no new thing in the world. the romans, the greeks, and other nations of antiquity, held slaves at the time christianity first dawned on society, and the professors of its mild doctrines never preached against it. [here mr. s. read a quotation from the roman and grecian history, and from some accounts of the government and manners of the people of africa, before they had any knowledge of the african traders, from which it appeared that slavery was not disapproved of by the apostles when they went about diffusing the principles of christianity; and that it was not owing to the african trade, as had been alleged, that the people of africa made war on each other.] another objection against slavery was, that the number of slaves in the southern states weakened that part of the union, and in case of invasion would require a greater force to protect it. negroes, it was said, would not fight; but he would ask whether it was owing to their being black or to their being slaves? if to their being black, then unquestionably emancipating them would not remedy the evil, for they would still remain black; if it was owing to their being slaves, he denied the position: for it was an undeniable truth, that in many countries slaves made excellent soldiers. in russia, hungary, poland, peasants were slaves, and yet were brave troops. in scotland, not many years ago, the highland peasants were absolute slaves to their lairds, and they were renowned for their bravery. the turks were as much enslaved as the negroes--their property and lives were at the absolute disposal of the sultan, yet they fought with undaunted courage. many other instances might be quoted, but those would suffice to refute the fact. had experience proved that the negroes would not make good soldiers? he did not assert that they would, but they had never been tried; discipline was every thing; white militia made but indifferent soldiers before they were disciplined. it was well known that according to the present art of war, a soldier was a mere machine, and he did not see why a black machine was not as good as a white one; in one respect the black troops would have the advantage in appearing more horrible in the eyes of the enemy. but admitting that they would not fight, to what would the argument lead? undoubtedly to show that the quakers, moravians, and all the non-resisting and non-fighting sects, constitute the weakness of the country. did they contribute to strengthen the country against invasion by staying at home and joining the invader as soon as he was successful? but they furnished money, he should be told, and paid substitutes; and did not the slaves, by increasing the agriculture of the country, add to its wealth, and thereby increase its strength? did they not moreover perform many laborious services in the camp and in the field, assist in transporting baggage, conveying artillery, throwing up fortifications, and thus increase the numbers in the ranks by supplying their places in these services? nor was it necessary that every part of the empire should furnish fighting men; one part supplied men, another money; one part was strong in population, another in valuable exports, which added to the opulence of the whole. great britain obtained no soldiers from her east and west india settlements, were they therefore useless? she was obliged to send troops to protect them, but their valuable trade furnished her with means of paying those troops. another objection was that the public opinion was against slavery. how did that appear? were there any petitions on the subject excepting that from the pennsylvania society and a few quakers? and were they to judge for the whole continent? were the citizens of the northern and eastern states to dictate to congress on a measure in which the southern states were so deeply interested? there were no petitions against slavery from the southern states, and they were the only proper judges of what was for their interest. the toleration of slavery in the several states was a matter of internal regulation and policy, in which each state had a right to do as she pleased, and no other state had any right to intermeddle with her policy or laws. if the citizens of the northern states were displeased with the toleration of slavery in the southern states, the latter were equally disgusted with some things tolerated in the former. he had mentioned on a former occasion the dangerous tenets and pernicious practices of the sect of shaking quakers, who preached against matrimony, and whose doctrine and example, if they prevailed, would either depopulate the united states, or people it with a spurious race. however the people of south carolina reprobated the gross and immoral conduct of these shakers, they had not petitioned congress to expel them from the continent, though they thought such a measure would be serviceable to the united states. the legislature of south carolina had prohibited theatrical representations, deeming them improper; but they did not trouble congress with an application to abolish them in new york and philadelphia. the southern citizens might also consider the toleration of quakers as an injury to the community, because in time of war they would not defend their country from the enemy, and in time of peace they were interfering in the concerns of others, and doing every thing in their power to excite the slaves in the southern states to insurrection; notwithstanding which, the people of those states had not required the assistance of congress to exterminate the quakers. but he could not help observing, that this squeamishness was very extraordinary at this time. the northern states knew that the southern states had slaves before they confederated with them. if they had such an abhorrence for slavery, why, said mr. s., did they not cast us off and reject our alliance? the truth was, that the best informed part of the citizens of the northern states knew that slavery was so ingrafted into the policy of the southern states, that it could not be eradicated without tearing up by the roots their happiness, tranquillity, and prosperity; that if it were an evil, it was one for which there was no remedy, and therefore, like wise men, they acquiesced in it. we, on the other hand, knew that the quaker doctrines had taken such deep root in some of the states, that all resistance to them must be useless; we therefore made a compromise on both sides--we took each other, with our mutual bad habits and respective evils, for better, for worse; the northern states adopted us with our slaves, and we adopted them with their quakers. there was then an implied compact between the northern and southern people that no step should be taken to injure the property of the latter, or to disturb their tranquillity. it was therefore with great pain that he viewed the anxiety of some of the members to pay such uncommon respect to the memorialists, as even to set aside the common rules of proceeding, and attempt to commit the memorials the very day they were presented, though the southern members had solicited one day's delay. such proceedings had justly raised an alarm in the minds of himself and his southern colleagues; and feeling that alarm, they would have acted a dishonorable part to their constituents had they not expressed themselves with that warmth and solicitude which some gentlemen had disapproved. a proper consideration of this business must convince every candid mind that emancipation would be attended with one or other of these consequences: either that a mixture of the races would degenerate the whites, without improving the blacks, or that it would create two separate classes of people in the community, involved in inveterate hostility, which would terminate in the massacre and extirpation of one or the other, as the moors were expelled from spain, and the danes from england. the negroes would not be benefited by it; free negroes never improve in talents, never grow rich, and continue to associate with the people of their own color. this is owing either to the natural aversion the whites entertain towards them, and an opinion of the superiority of their race, or to the natural attachment the blacks have to those of their own color; in either case it proves that they will, after manumission, continue a distinct people, and have separate interests. the author already quoted has proved that they are an inferior race even to the indians. after the last war, a number of negroes which had been stolen from the southern states, and carried to england, either quitted the persons who had carried them there, or were abandoned by them. unable to provide for themselves, and rejected from the society of the common people of england, they were begging about the streets of london in great numbers; they supplicated captains of vessels to carry them back to their owners in america, preferring slavery there to freedom in england. many of them were shipped to africa by the humanity of the english, and were either butchered or made slaves of by their savage countrymen, or reshipped for sale to the plantations. but some persons have been of opinion, that if the further importation of slaves could be prohibited, there would be a gradual extinction of the species. having shown the absurdity of liberating the _postnati_ without extending it to all the slaves old and young, and the great absurdity and even impracticability of extending it to all, i shall say a few words with regard to the extinction. that would be impossible, because they increase; to occasion an extinction, congress must prohibit all intercourse between the sexes; this would be an act of humanity they would not thank us for, nor would they be persuaded that it was for their own good; or congress must, like herod, order all the children to be put to death as soon as born. if, then, nothing but evil would result from emancipation, under the existing circumstances of the country, why should congress stir at all in the business, or give any countenance to such dangerous applications? we have been told that the government ought to manifest a disposition inimical to this practice which the people reprobate. if some citizens, from misinformation and ignorance, have imbibed prejudices against the southern states, if ill-intentioned authors have related false facts, and gross misrepresentations tending to traduce the character of a whole state, and to mislead the citizens of other states, is that a sufficient reason why a large territory is to be depopulated, merely to gratify the wish of some misinformed individuals? but what have the citizens of the other states to do with our slaves? have they any right to interfere with our internal policy? this is not an object of general concern, for i have already proved that it does not weaken the union; but admit that it did, will the abolition of slavery strengthen south carolina? it can only be cultivated by slaves; the climate, the nature of the soil, ancient habits, forbid the whites from performing the labor. experience convinces us of the truth of this. great britain made every attempt to settle georgia by whites alone, and failed, and was compelled at length to introduce slaves; after which that state increased very rapidly in opulence and importance. if the slaves are emancipated, they will not remain in that country; remove the cultivators of the soil, and the whole of the low country, all the fertile rice and indigo swamps will be deserted, and become a wilderness. what, then, becomes of its strength? will such a scheme increase it? instead of increasing the population of the whites, there will be no whites at all. if the low country is deserted, where will be the commerce, the valuable exports of that country, the large revenue raised from its imports and from the consumption of the rich planters? in a short time, the northern and eastern states will supply us with their manufactures; if you depopulate the rich low country of south carolina and georgia, you will give us a blow which will immediately recoil on yourselves. suppose there are one hundred and forty thousand slaves in those states, which require annually five yards of cloth each, making seven hundred thousand yards at half a dollar a yard, this makes three hundred and fifty thousand dollars, besides the articles of linen, flannel, osnaburgh, blankets, molasses, sugar, and rum, for the use of the negroes; now, either the eastern and middle states will supply us with all these articles, or they will receive the benefit of the impost on them if they are imported from foreign countries. without the rice swamps of carolina, charleston would decay, so would the commerce of that city; this would injure the back country. if you injure the southern states, the injury would reach our northern and eastern brethren; for the states are links of one chain; if we break one, the whole must fall to pieces. thus it is manifest, that in proportion to the increase of our agriculture will our wealth be increased; the increase of which will augment that of our sister states, which will either supply us with their commodities, or raise a large revenue upon us, or be the carriers of our produce to foreign markets. it has been said, that the toleration of slavery brings down reproach on america. it only brings reproach on those who tolerate it, and we are ready to bear our share. we know that none but prejudiced and uncandid persons, who have hastily considered the subject, and are ignorant of the real situation of the southern states, throw out these insinuations. we found slavery ingrafted in the very policy of the country when we were born, and we are persuaded of the impolicy of removing it; if it be a moral evil, it is like many others which exist in all civilized countries, and which the world quietly submit to. humanity has been a topic of declamation on this subject: that sentiment has different operations on different individuals, and he had it in his power to show, that humanity first gave origin to the transportation of slaves from africa into america. _bartholomew de las casas_, bishop of chiapa, a spaniard renowned for his humanity and virtues, in order to save the indians in south america from slavery, prevailed on his monarch to substitute africans, which were accordingly purchased on the coast of africa, and shipped to the spanish colonies to work in the mines: this appears in _robertson's history of america_, which mr. s. quoted. at this day, the spaniards give considerable encouragement to the transportation of slaves into their islands. mr. s. read the edict for that purpose. another objection is, that slavery vitiates and debases the mind of the owner of this sort of property. where, he asked, is the proof of this allegation? do the citizens of the southern states exhibit more ferociousness in their manners, more barbarity in their dispositions, than those of the other states? are crimes more frequently committed there? a proof of the absurdity of this charge may be found in the writings of those who wish to disseminate this mischievous idea, and yet, in their relations of facts, they themselves contradict it. they lay down general principles, which they take upon credit from others, or which they publish with sinister views, and when they enter into a detail of the history of those states, they overset their own doctrines. thus, one writer tells us, that the southern citizen, who is educated in principles of superiority to the slaves which surround him, has no idea of government, obedience, and good order, till he mingles with the hardy and free-spirited yeomanry of the north, and that after mixing with them, he will return home with his mind more enlarged, his views more liberalized, and his affections rectified, and he becomes a more generous friend to the rights of human nature. but hear what the eastern traveller is to learn by visiting the enslaved regions of the south. he will see, says the same writer, immediately after, industry crowned with affluence, independence, hospitality, liberality of manners; and, notwithstanding the prevalence of domestic slavery, he will find the noblest sentiments of freedom and independence to predominate; he will extol their enterprise, art, and ingenuity, and will reflect that nature is wise, and that providence in the distribution of its favors is not capricious. take another striking instance of this contradiction from morse's geography. he says, that there are more slaves than free persons in south carolina, and mentions the mischievous influence of slavery on their manners, which, he observes, by exempting them from the necessity of labor, leads to luxury, dissipation, and extravagance, and savors too much of a haughty, supercilious behavior; that the inhabitants want that enterprise and perseverance which are necessary for the attainment of the arts and sciences; that they have few motives to enterprise, and too generally rest contented with barely knowledge enough to transact the common affairs of life. now, for the author's proofs: they are contained in these words: "many of the inhabitants spare no pains nor expense in giving the highest polish of education to their children; literature has begun to flourish since the peace; several flourishing academies and colleges have been established; the ladies have an engaging softness and delicacy in their manners; theatrical exhibitions have been prohibited by law; gaming of all kinds is more discountenanced than in any of the southern states; all denominations of religion are on an equal footing; commerce is flourishing; economy is becoming more fashionable, and science begins to spread her salutary influence among the citizens." but was south carolina, at the commencement of the war, with all her slaves, backward in her resistance to great britain? view the conduct of her citizens, their zeal and ardor in the cause of liberty; their labor at fort sullivan. are crimes more frequent in that country than in the other states? are there more executions? i believe there have been as few as in any part of the continent, and those which have taken place have been generally of emigrant convicts, or fugitive wheel-barrow men; he would be bold to assert that in no state on the continent is there more order, sobriety, and obedience to good government; more industry and frugality; nor is there any trace of the influence of slavery on the character of her citizens. the french, so far from curbing and cramping the african trade with needless regulations, give large premiums upon every negro landed on their islands; in some instances as much as two hundred livres per head. is that nation more debased than others? are they not a polished people, sensible of the rights of mankind, and actuated by proper sentiments of humanity? the spaniards encourage slavery; they are people of the nicest honor, proverbially so. the romans and greeks had slaves, and are not their glorious achievements held up as excitements to great and magnanimous actions? sparta teemed with slaves at the time of her greatest fame as a valiant republic. the absolute power of the lacedæmonians over the helotes is frequently spoken of by the ancient writers; they were not only the slaves of the commonwealth, but of every individual; they could not be set at liberty, neither could they be sold; hence arose a saying, that a free man at sparta was most a free man, and a slave most a slave. the system of the roman policy with regard to slavery was still more severe. slaves were not even under the protection of the laws; they were considered as things, _inter res_. a master, merely from caprice, might torture, dismember, and even murder his slave. if a slave did any damage exceeding his value, he was delivered to the person injured, who did with him what he pleased. yet these slaves were of the same color as their masters, and equal to them in mental faculties; many of them were men of great learning, philosophers, poets, &c. much had been said of the cruel treatment of slaves in the west indies and the southern states; with respect to the latter, he denied the fact from experience, and accurate information, and believed in his conscience that the slaves in south carolina were a happier people than the lower order of whites in many countries he had visited. with regard to the west indies, _lord rodney_ and _admiral barrington_ had both declared, that they had spent some time in the west indies, and that they had never heard of a negro being cruelly treated; that they had often spoken of their happiness in high terms, declaring that they should rejoice exceedingly if the english day laborer was half as happy. some have said that slavery is unnecessary; so far from it, that several essential manufactures depended on it. indigo, cochineal, and various other dyeing materials, which are the produce of the west indies, could only be raised by slaves; the great staple commodities of the south would be annihilated without the labor of slaves. it is well known that when the african slaves were brought to the coast for sale, it was customary to put to death all those who were not sold; the abolition of the slave trade would therefore cause the massacre of the people. the cruel mode of transportation was another motive to this abolition; but was it to be presumed that the merchants would so far attend to their own interests as to preserve the lives and the health of the slaves on the passage. all voyages must be attended with inconveniencies, and those from africa to america not more than others. as to their confinement on board, it was no more than necessary; as to the smallness of space allotted them, it was more than was allotted to soldiers in a camp; for the measurement of cubical air breathed by the africans, compared with that of soldiers in a camp, was in favor of the former as thirty to seventeen; it was full as much as was allotted in ships of war to seamen, who, by the laws of england, were frequently on their return to their families, after a long and dangerous voyage, seized by violence, hurried away by a press-gang, and forced on another voyage more tedious and perilous than the first, to a hot and sickly climate, where several hundreds of them were stowed away in the hold of a vessel. in cases of disobedience, the captain had a right, for slight offences, to inflict on them corporal punishment without the intervention of a court-martial, and in other cases they are punishable by very severe laws, executed by martial courts, established for that purpose. the same may be observed of the soldiers, who were frequently flogged severely for trifling offences; instances have been known of their being put under the care of a surgeon, after receiving a small part of the intended flagellation, to refit them for the residue. having thus removed the force of the observations which have been advanced against the toleration of slavery, by a misguided and misinformed humanity, i shall only add, that i disapprove of the whole of the report; because it either states some power sufficiently expressed in the constitution, which is unnecessary, or it sets forth some power which i am clear congress do not possess. the concluding paragraph is an extraordinary one. in what mode are the memorialists to be informed of our humane dispositions? are we to send a special committee to inform them? or is the speaker to write them a letter, or the sergeant-at-arms with the mace to wait on them? in short, mr. chairman, the whole of this business has been wrong from beginning to end, and as one false step generally leads to others, so has the hasty commitment of these memorials involved us in all this confusion and embarrassment. i hope, therefore, if any kind of report is agreed to, it will be something like that proposed by my colleague. the committee rose, and reported progress. friday, march . hugh williamson, a member from north carolina, appeared and took his seat. monday, march . _subject of slavery._ mr. boudinot said, although he most heartily approved of many of the arguments and doctrines of his friend from pennsylvania, yet he could not go all lengths with him. he thought with him, that our time had been taken up, and great labor had been used in arguments that nowise related to the merits of the question before the committee, but he could not agree that the clause in the constitution relating to the want of power in congress "to prohibit the importation of such persons, as any of the states _now existing_ shall think proper to admit, prior to the year , and authorizing a tax or duty on such importation, not exceeding ten dollars for each person," did not extend to negro slaves. candor required that he should acknowledge, that this was the express design of the constitution, and, therefore, congress could not interfere in prohibiting the importation, or promoting the emancipation of them, prior to that period. he said he was well informed that the tax or duty of ten dollars was provided instead of the five per cent. _ad valorem_, and was so expressly understood by all parties in the convention. that therefore it was the interest and duty of congress to impose this tax, or it would not be doing justice to the states, or equalizing the duties throughout the union. if this was not done, merchants might bring their whole capitals into this branch of trade, and save paying any duties whatever. mr. b. had hoped that the great lengths to which the gentleman from pennsylvania had carried the argument, would have convinced gentlemen in the opposition of the propriety, if not the necessity of the resolutions on the table. is it not prudent now, while the design of the framers of the constitution is well known, and while the best information can be obtained, for congress to declare their sense of it, on points which the gentlemen say, involve their great and essential interests, especially when the gentleman from pennsylvania gives so different a construction to it from what the gentleman from the southward thinks right? is it not advantageous to the southern states to have an explicit declaration calming their fears and preventing unnecessary jealousies on this subject? can there be any foundation for alarm, when congress expressly declare, that they have no power of interference prior to the year ? but gentlemen say they have been charged with impropriety of conduct, in discovering so much warmth and earnestness, on a subject with which their dearest interests are so intimately connected--that all men are led by interest, and they are justified in pursuing the same line of conduct. mr. b. declared, for his own part, he never blamed them for standing forth for what they conceived the true interests of their constituents; but it was the manner in which this had been done, that he complained of. on resolutions declaring that congress had not power to prohibit the importation of slaves into any state, or interfering in their emancipation or internal government, long arguments had been used, and much precious time had been spent, to prove the lawfulness of the african trade in slaves; this, indeed, was an arduous task, in this day of light and knowledge. an author, said to be of reputation, was brought forward to prove the state of that unhappy country, but it turned out to be in the fifteenth century; this could be of little avail. an hour was taken up in reading the labors of a newspaper writer in the island of jamaica. this writer appeared wholly uninformed as to historic facts relating to the miserable africans, and as ignorant of the principal arguments against the slave trade. it was necessary for him to deny the authority of _anthony benezet_, who had published some pointed facts on the subject. mr. _benezet_ was a man of the strictest integrity, and of the best information--a man that was an honor to his country, and an ornament to society. mr. b. had been well acquainted with him, and spoke from personal knowledge; he had examined into the facts from captains of guineamen, and a person who had lived twelve years in that country, and he could say, with confidence, that _mr. benezet's_ account had been generally confirmed. not only the practice of ancient nations, and that of all modern europe, had been brought into view, but even the sacred scriptures had been quoted, to justify this iniquitous traffic. it is true, that the egyptians held the israelites in bondage for four hundred years, and mr. b. doubted not, but much the same arguments as had been used on the present occasion, had been urged with great violence by the king of egypt, whose heart, it is expressly said, had been extremely hardened, to show why he should not consent to let the children of israel go, who had now become absolutely necessary to him; but, said he, gentlemen cannot forget the consequences that followed; they were delivered by a strong hand and stretched-out arm, and it ought to be remembered that the almighty power that accomplished their deliverance is the same yesterday, to-day, and for ever. the new testament has afforded a number of texts to countenance this doctrine, in the gentleman's opinion. one would have imagined that the uniform tenor of the gospel, that breathes a spirit of love and universal philanthropy to our fellow-creatures--that commands our love to our neighbor to be measured by our love to ourselves--that teaches us that whatsoever we would that men should do to us to do so to them, would have prevented this misapplication. surely the gentleman overlooked the prophecy of st. peter, where he foretells, that, among other damnable heresies, "through covetousness shall they, with feigned words, make merchandise of you." a quotation from a modern author, of great note in the philosophical world, has been most ungenerously made use of by the newspaper writer before referred to--i mean from the works of the famous _mr. paley_, whose treatise on moral philosophy does him the greatest credit--a single sentence or two is taken from this work, without regard to the connection, to brand him with the charge of countenancing slavery. mr. b. then produced the book and read the passage, wherein it appeared that _mr. paley_ laid down "the obligation of slavery to arise from crimes, captivity, and debt;" that the slave trade on the coast of africa is not excused by these principles; that no questions are there asked relative to the justice of the vender's title, but this is the least crime with which this traffic is chargeable; the natives are excited to war, with this the wickedness begins; the slaves torn away from parents, wives, children, from their friends and companions, their fields and flocks, their home and country, are transported to the european settlements in america, with no other accommodation on ship-board than what is provided for brutes. this is the second stage of cruelty from which they are delivered, only to be placed, and that for life, in subjection to a dominion and system of laws the most tyrannical that ever were tolerated upon the face of the earth. but necessity is pretended, and after all it has never been proved that it exists. _mr. paley_ then refers to the present situation of the united states. "the great revolution in the western world," says he, "may probably conduce (and who knows but that it was designed) to accelerate the fall of this abominable tyranny; and now it is a season for reflecting whether a legislature, which had so long lent its assistance to the support of an institution replete with human misery, was fit to be trusted with an empire the most extensive that ever obtained in any age or quarter of the world." he then shows that slavery was a part of the civil constitution of most countries when christianity appeared; and the reason that its precepts did not expressly condemn or prohibit slavery was, because, soliciting admission into all nations, it abstained from meddling with the civil institutions of any. then follows the passage quoted by the newspaper writer--"that the discharging of slaves from all obligation to their masters, which is the consequence of pronouncing slavery unlawful, would have no better effect than to let loose one-half of mankind on the other. slaves would have been tempted to embrace a religion which asserted their right to freedom; masters would hardly have been persuaded to consent to claims founded on such authority; the most calamitous of all contests, a _bellum servile_, might probably have ensued, to the reproach, if not the extinction of the christian name." he then asserts, that emancipation should be gradual, and by the provisions of laws, and under the protection of civil government. "christianity can only operate as an alterative. by the mild diffusion of its light and influence, the minds of men are insensibly prepared to perceive and correct the enormities, which folly, wickedness, or accident, have introduced into their public establishments." thus, proceeded mr. b., justice is done to this worthy philosopher and my own sentiments are more concisely and explicitly set forth than i could have done without it. but when gentlemen attempt to justify this unnatural traffic, or to prove the lawfulness of slavery, they should advert to the genius of our government, and the principles of the revolution. by the declaration of congress, in , setting forth the causes and necessity of taking up arms, they say: "if it was possible for men who exercise their reason, to believe that the divine author of our existence intended a part of the human race to hold an absolute property in, and an unbounded power over others, marked out by his infinite goodness and wisdom, as the objects of a legal domination never rightfully resistible, however severe and oppressive, the inhabitants of these colonies might at least require from the parliament of great britain some evidence that this dreadful authority over them had been granted to that body." and by the declaration of independence, in , congress declare: "we hold these truths to be self-evident: that all men are created equal; that they are endowed by their creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness." this, then, is the language of america in the day of distress. mr. chairman, i would not be understood, to contend the right of congress at this time to prohibit the importation of slaves, whatever might have been the principles of the revolution or the genius of the government; by the present constitution we are clearly and positively restrained till the year , and i am sure that no gentleman in this committee would have the most distant wish to wound this instrument of our connection. but there is a wide difference between justifying this ungenerous traffic, and supporting a claim to property, vested at the time of the constitution, and guarantied thereby. besides, it would be inhumanity itself to turn these unhappy people loose to murder each other, or to perish for the want of the necessaries of life. i never was an advocate for so extravagant a conduct. many arguments were pointed against the danger of our emancipating these slaves, or even holding up an idea that we had a power so to do, and much time has been taken up to disprove this right in congress. as no claim of this kind is contended for, and the resolutions already passed expressly contradict it, i shall make no further observations on them. but the characters of the signers of these memorials are called in question, as an argument against the adoption of the resolution on the table. one of these memorials was signed by the society of people called quakers: the other by dr. franklin, as president of a private society in philadelphia. the indiscriminate abuse that has been thrown out against quakers, without distinction, has not comported with the honor or dignity of this house. not only their characters, but their very names have been called upon, and private anecdotes, relating to individuals, been mentioned on the floor. many of the quakers i have long lived in the habits of friendship with, and can testify to the respectability of their characters and the regularity of their lives. their conduct in the late war has been arraigned, and they have been condemned in the lump. i have known many of them during the war, and impartial justice requires it from me, to give the committee some official information on the subject. i had the honor of serving the united states at the commencement of the war, as commissary general of prisoners. congress not being able to afford them supplies, those unhappy men in this town were reduced to the very depths of distress, without food or raiment, without blankets or firing, they suffered every thing that human nature could bear. in this situation many of the quakers of this city exercised such humanity towards them as did honor to human nature. the miserable prisoner not only felt the happy effects of their exertions in his favor, but participated in their money, their food, and clothing. nay, such were the jealousies created by this conduct, in the british army here, that an armed force entered the house of one of them, seized his books, and though a man of great property, and large commercial dealings, on finding that he had loaned large sums of money to our distressed prisoners, he was turned out of their lines, and with his family was a refugee during the whole of the war afterwards, separated from his business and property. to whom was the care of our prisoners in philadelphia committed? to a quaker: and i have been witness to the just tribute of gratitude and thankfulness paid by great numbers of our unhappy fellow-citizens to that gentleman for his kindness and humanity. and is this indiscriminate charge, without the least respect to characters, a decent or a just return for a conduct like this? where is the denomination amongst us, that did not furnish opposers to our glorious revolution? were not hundreds of presbyterians, episcopalians, and almost of every other denomination, among our enemies? what denominations formed the thousands of new levies, that endeavored to deluge our country in blood? on the other hand, were not a greene and a mifflin furnished from the society of the quakers? in short, i rejoice to say, that our cause was not carried on by fanaticism or religious zeal, but a general struggle for the rights of human nature. then why all this abuse of this particular sect, without discrimination? can any solid argument against the resolution on the table arise from a conduct of this kind? i am at a loss to know what other argument has been used to show the impropriety of the resolution before you. it goes to declare the power of congress to prohibit foreigners from fitting out vessels in our ports, to supply foreigners with slaves from africa. for my part, i think it a prudent, a humane, and a constitutional resolution. it will render further interference on this subject, perhaps, unnecessary, when it is known that the power of congress extends to remedy the evil. they will hardly venture to risk a voyage that may be ruined before its being finished. the gentleman last up (mr. smith) said, that it was now acknowledged, that one of the memorials had asked something contrary to the constitution. i have never acknowledged this. the language is, that congress would go to "the very verge of the constitution," to accomplish the business; but there is no request to exceed it. the character of the celebrated signer of the last memorial, dr. franklin, has been touched upon. the firmness of his mind has been suspected. an ingenious parable of his has been read to the committee, but its application totally mistaken. if the supreme being has borne with the unhappy subjects of our consideration, not for one hundred, but for thousands of years, in their own native land; has provided them with climate, soil, and social comforts, in which they rejoice; must we be discontented, and suppose, by adding to their misery, we can add to their happiness? tuesday, march . _subject of slavery._ it was then moved, that the house should take up the report of the committee of the whole on the report of the committee to whom were referred the memorials of the people called quakers, and of the pennsylvania society for promoting the abolition of slavery. this motion was opposed by mr. jackson, mr. smith, mr. burke, and mr. bland; they severally observed, that the discussion of the subject has already excited a spirit of dissension among the members of the house, and that every principle of policy and concern for the dignity of the house, and the peace and tranquillity of the united states, concur to show the propriety of dropping the subject, and letting it sleep where it is. on the other hand, mr. vining, mr. hartley, and mr. page, observed, that there was the same propriety in taking up the subject at the present moment, and bringing it to a conclusion, as there was for first taking it up; that it has been so fully discussed it cannot be supposed gentlemen will go over the same ground again; it may soon be determined; to pass it over will be unprecedented, and will leave the public mind in the same state of uncertainty from which so much danger is apprehended. the motion for taking up the report was warmly contested in a lengthy debate, and finally passed in the affirmative, by a majority of one. whereupon, on motion, that the said report of the committee, and also the report of the committee of the whole house, of amendments to said report, be inserted on the journal, it was resolved in the affirmative, votes to . the yeas and nays were as follows: those who voted in the affirmative, were, messrs. boudinot, brown, cadwalader, contee, floyd, foster, gerry, gilman, goodhue, griffin, hartley, hathorn, heister, huntington, lawrence, lee, leonard, madison, muhlenberg, parker, partridge, schureman, scott, sedgwick, sherman, sylvester, sinnickson, vining, and wynkoop. those who voted in the negative, were, messrs. ames, baldwin, benson, bland, burke, carroll, coles, gale, grout, jackson, livermore, mathews, moore, page, van rensselaer, smith, (of maryland,) smith, (of south carolina,) stone, sturges, sumter, thatcher, trumbull, tucker, white, and williamson. the said reports are as follow: _report of the special committee._ the committee to whom were referred sundry memorials from the people called quakers, and also, a memorial from the pennsylvania society for promoting the abolition of slavery, submit the following report: that from the nature of the matters contained in these memorials, they were induced to examine the powers vested in congress, under the present constitution, relating to the abolition of slavery, and are clearly of opinion, _first._ that the general government is expressly restrained from prohibiting the importation of such persons "as any of the states now existing shall think proper to admit, until the year one thousand eight hundred and eight." _secondly._ that congress, by a fair construction of the constitution, are equally restrained from interfering in the emancipation of slaves, who already are, or who may, within the period mentioned, be imported into, or born within, any of the said states. _thirdly._ that congress have no authority to interfere in the internal regulations of particular states, relative to the instructions of slaves in the principles of morality and religion; to their comfortable clothing, accommodations, and subsistence; to the regulation of their marriages, and the prevention of the violation of the rights thereof, or to the separation of children from their parents; to a comfortable provision in cases of sickness, age, or infirmity; or to the seizure, transportation, or sale of free negroes; but have the fullest confidence in the wisdom and humanity of the legislatures of the several states, that they will revise their laws from time to time, when necessary, and promote the objects mentioned in the memorials, and every other measure that may tend to the happiness of slaves. _fourthly._ that, nevertheless, congress have authority, if they shall think it necessary, to lay at any time a tax or duty, not exceeding ten dollars for each person of any description, the importation of whom shall be by any of the states admitted as aforesaid. _fifthly._ that congress have authority to interdict, or (so far as it is or may be carried on by citizens of the united states, for supplying foreigners) to regulate the african trade, and to make provision for the humane treatment of slaves, in all cases while on their passage to the united states, or to foreign ports, so far as respects the citizens of the united states. _sixthly._ that congress have also authority to prohibit foreigners from fitting out vessels in any port of the united states, for transporting persons from africa to any foreign port. _seventhly._ that the memorialists be informed, that in all cases to which the authority of congress extends, they will exercise it for the humane objects of the memorialists, so far as they can be promoted on the principles of justice, humanity, and good policy. _report of the committee of the whole house._ the committee of the whole house, to whom was committed the report of the committee on memorials of the people called quakers, and of the pennsylvania society for promoting the abolition of slavery, report the following amendments: strike out the first clause, together with the recital thereto, and in lieu thereof insert, "that the migration or importation of such persons as any of the states now existing shall think proper to admit, cannot be prohibited by congress, prior to the year one thousand eight hundred and eight." strike out the second and third clauses, and in lieu thereof insert, "that congress have no authority to interfere in the emancipation of slaves, or in the treatment of them within any of the states; it remaining with the several states alone to provide any regulations therein, which humanity and true policy may require." strike out the fourth and fifth clauses, and in lieu thereof insert, "that congress have authority to restrain the citizens of the united states from carrying on the african trade, for the purpose of supplying foreigners with slaves, and of providing, by proper regulations, for the humane treatment, during their passage, of slaves imported by the said citizens into the states admitting such importation." strike out the seventh clause.[ ] wednesday, march . john baptist ashe, another member from north carolina, appeared and took his seat. thursday, april . _benjamin franklin._ mr. madison rose and addressed the house as follows: mr. speaker: as we have been informed, not only through the channel of the newspapers, but by a more direct communication, of the decease of an illustrious character, whose native genius has rendered distinguished services to the cause of science and of mankind in general; and whose patriotic exertions have contributed in a high degree to the independence and prosperity of this country in particular; the occasion seems to call upon us to pay some tribute to his memory expressive of the tender veneration his country feels for such distinguished merit. i therefore move the following resolution: "the house being informed of the decease of benjamin franklin, a citizen whose native genius was not more an ornament to human nature than his various exertions of it have been precious to science, to freedom, and to his country, do resolve, as a mark of the veneration due to his memory, that the members wear the customary badge of mourning for one month." which was agreed to. thursday, june . _officers of the navy._ on motion of mr. hartley, the report of the committee on the memorial of the officers of the navy was taken into consideration by the committee of the whole: the report is as follows: the committee report, that they do not find any reason sufficient to justify the difference that has been made in the compensation of the officers of the army and of the navy of the united states, and are, therefore, of opinion, that a law ought to pass for granting five years' pay, equal to the commutation of half-pay, and also a bounty of land, to the officers of the navy, upon the same principles, and in the same manner, as has been granted to the officers of the army of the united states. mr. sherman observed, that, by the memorial and the report, it appears that the memorialists do not pretend to have any claim on the public by virtue of any existing resolutions of congress. the subject is very fully before the committee; it lies with congress, therefore, to determine what is proper to be done under such circumstances. the application stands entirely on the basis of its own merits, and he could conceive of no difficulty in deciding on it. mr. stone observed, that it is true there is no claim by virtue of any antecedent contract or promise; nor was commutation, he believed, promised to the officers of the army. in this view, the officers of the navy stand exactly upon the same footing with those of the army. he then entered into a consideration of the merits, services, and sufferings, of the officers of the navy; and from these and other considerations, urged the justice of their claims, as he could see no reason for the difference that had been made. mr. huntington said, but a little consideration was necessary to recollect the reason of the difference between the officers of the navy and army. the officers of the army were first in the public service; the navy was not formed until some time after hostilities commenced. the officers of the navy were put on the same footing, in respect to pay, as the army; the former had some advantages in point of rank, and they were entitled to a part of their captures. he then gave an account of the origin of commutation--which was granted on account of the peculiar exigencies of affairs at that time. during the time this business was in agitation there were very few navy officers in the public service, and no application was made by them for half-pay or commutation. they were ashore, and many of them had retired to civil life. the reason, therefore, why they are not included in the commutation was, there did not appear at the time any necessity for the measure, as the united states did not then want a navy; whereas the public exigencies with respect to the army were such as rendered the resolution for the commutation to them absolutely necessary. he, however, thought the claim of the navy officers founded on justice; and justice, said he, is the strongest plea that can be urged in support of any demand whatever. mr. hartley supported the memorial. he gave the officers great credit for their bravery, services, and attachment to the cause of their country. he dilated on the hardships and sufferings they endured; he adverted to the advantages they derived from captures, which he stated to be very inconsiderable. their claims, said he, appear to me to be founded on the the strictest and most impartial justice; he hoped, therefore, that the report would be accepted, and a committee appointed to bring in a bill accordingly. mr. baldwin, who was one of the select committee which made the report, stated some of the reasons which influenced the committee; also the considerations which were supposed to have led to the distinction between the navy and army, in respect to commutation--one of which was, that the officers of the navy were in the line of their particular calling, and which they were enabled to pursue with perhaps greater advantages than they ever did before. other circumstances were mentioned by him, tending to invalidate their claim. mr. sherman observed, that if this report is adopted, it will open a very wide door indeed to applications for half pay or commutation. he then gave a history of the origin of commutation or half pay, which, he said, was considered at the time as a measure of necessity, and not of justice; and has been very much complained of by several of the states. the above necessity did not exist with respect to the officers of the navy, as, at the time, there were but two or three ships in service. from this state of facts, he inferred that no precedent could be drawn in favor of extending the commutation to the officers of the navy. he thought that their case was entitled to the consideration of the legislature, on the principles of equity; he should, therefore, be for the committee's making full inquiry into the circumstances of the whole business, and making such provision as justice should point out; but he was against the report in its present latitude. mr. burke replied to the observations of mr. baldwin, respecting the officers of the navy being in the way of their profession; and, from the nature of the service, he showed that there was little weight in the observation. their circumstances were very much altered for the worse, and they were now left in a very destitute situation; whereas the officers of the army are enjoying posts and places of honor and profit. their silence on the subject has been mentioned. he observed that their dispersed situation had been the principal reason of their not coming forward with their petition before. mr. b. observed, that the officers of the navy were not treated like other prisoners when they were taken; they suffered peculiarly, not as prisoners of war, but were treated like rebels, whose crimes were of the blackest nature. mr. seney said he was, and always had been an advocate for the claims of the officers of the navy: he thought their memorial founded on the strictest justice. he introduced the representation to congress of the "illustrious" commander-in-chief of the late army, on the subject of half pay and pensions, which he read. he then entered into a comparative view of the relative merits of the army and navy; and said it was well known that many of them made as great sacrifices as the other description of officers. with respect to prize money, he doubted whether they had ever been benefited by it. in some instances, where they had expected the most, they had, through the failure of agents, received only a certificate, worth about five shillings in the pound; and that received only for a part of what was due. he replied to the several objections which had been offered, and concluded by saying it would be unjust and impolitic not to grant their claims. mr. sedgwick observed, that no gentleman in the committee had deeper impressions made upon him, by the grateful recollection of the merits and services of those brave men to whom america owed its freedom, than himself. yet, under the present circumstances of the country, he thought it a duty he owed the people who had confided their interest to his management, to examine, on principle, the demands which were made upon the government for pecuniary grants. the applicants in the present instance, did not place their demand on the ground of contract. for the contract, under which the services had been rendered, had been complied with according to the specified terms, and performed to the extent of the powers of the government, in the same manner as other claims of a similar nature had been satisfied. it was further, he said, to be noticed, that during the time those services were performing, no dissatisfaction had been manifested by the present memorialists. from these observations, then, it clearly followed, that, in point of contract, the claims of the officers of the navy were in all respects similar to those of every other individual in the community, who had received satisfaction by the same means. it would then become gentlemen to reflect on the consequences which would result from the establishment of a precedent, which would go to the invalidation of all the final settlements which had been made. mr. sedgwick said, gentlemen had supported the claim of the applicants from a supposed analogy of their circumstances to those of the gentlemen of the army. he said there was the difference which arose from the circumstance already mentioned. the commutation was founded in contract; the present claim was destitute of that support. there were also other material circumstances which very widely differed in the two cases. the officers of the army were called from pursuits by which they were enabled to support and provide for their families, and to abandon their prospects of establishment by the business to which they had been educated. on the other hand, the gentlemen of the navy were promised handsome wages for continuing in that business to which they had been educated, and for which they were best, if not only qualified; and this, too, at a time when, by the destruction of our commerce, many of them otherwise must have wanted employment. they had likewise additional encouragement from a participation in the avails of prizes, while the army derived no emolument from any such source. that the report of the select committee being unsupported either on the ground of contract, or the principles on which the grant to the officers of the army was made, the application was merely to the generosity of the government. he said it was a principle, from which he professed himself determined never to depart, not to dissipate that property in idle or visionary projects of generosity, which is necessary to the performance of justice. that the arduous scenes in which we had been engaged, had imposed the necessity of practising a rigid economy. that the conduct which we might, under present embarrassments, pursue, it would be improper hereafter to consider as a precedent. that it would, indeed, be a noble and generous sentiment to compensate all those losses which our friends had sustained by the war. but he asked, if such would not be a vain attempt? can we compensate all the desolation of fire and wanton depredation, provoked from the enemy by the patriotism of particular districts in this country? can we retribute the sufferings which have been caused by the depreciation of our currency? or the ruin of thousands and thousands by our delays of payment, and the consequent depreciation of our securities? can we administer to the relief of the vast number of widows and orphans, who, from those circumstances, have been reduced from affluence to want and beggary? remember, too, he said, the sages, who, in the hour of danger, watched over your security; and who, in their best days, abstracted themselves from every lucrative pursuit, and devoted all their time and talents to the service of their country. these patriots, now in the evening of life, are the most meritorious objects of the generosity of the government, yet they would nobly disdain to ask, or to receive the aid of the government, however necessary to them, until efficient provision was made for the performance of those contracts, which we are under the most solemn obligation, if in our power, to fulfil. and he concluded by observing, that when the improving resources of our country should enable the government generously to compensate the sufferings of those several descriptions of persons, then, and not till then, might we extend to the memorialists the relief which they now sought for. mr. jackson supported the claim of the officers. he observed, that if the country had not derived so extensive advantages from the exertions of the navy, it must be imputed to peculiar circumstances, and not to any deficiency in the officers and sailors; so far as their abilities could be exerted, no men distinguished themselves more. had ours been a maritime instead of an agricultural country, the importance of a navy would have struck us more forcibly. their claims he considered as founded in the strictest justice, and he had no doubt that if they had applied to the old congress they would have granted their request; but restrained by a consideration of the embarrassments of the united states, they did not obtrude their petitions upon them; and now this very circumstance is urged as a reason for not granting their petition. in his opinion, this did them great honor; since that time, they have been scattered through all parts of the union. this and other circumstances have delayed their application to this time, but have not lessened the equity of it. he added many other observations, and concluded by saying that he was fully in favor of the report. friday, june . _foreign intercourse._ the house proceeded to consider the amendments last proposed on the part of the senate to the bill providing the means of intercourse between the united states and foreign nations. the first amendment was to strike out thirty thousand, and to insert forty thousand dollars. it was moved that the house should agree to this amendment; this motion was opposed. it was said that the committee had exceeded their commission in proposing this alteration in the bill, as both houses had agreed in the sum of thirty thousand dollars. it was further said that more than one minister plenipotentiary was unnecessary; that the court of great britain had sent only a consul to this country; and that, from the present appearances, no advantages could be expected to arise from sending a minister, equivalent to the expense; the necessity contended for is merely conjectural; and by that rule, the ministers plenipotentiary may be increased, and one sent to spain and another to portugal. if only one minister is sent to europe, the first sum will be sufficient; with respect to the court of london, a chargé des affaires will answer every purpose. in support of the motion, it was urged that the president of the united states is, by the constitution, vested with the power of appointing such foreign officers as he may think necessary, and it must devolve upon the legislature to make provision for defraying the expense. the committee of conference did not rely on their own judgment, they consulted the secretary of foreign affairs. his opinion was, that in the present situation of this country with respect to foreign nations, two ministers and two chargés des affaires were necessary; a minister at the court of versailles is generally conceded to be requisite. the peculiar situation of this country with respect to the posts, the northern and eastern frontiers, and the state of our commerce in respect to great britain, can scarcely leave a doubt of the necessity and importance of sending a minister to that country. this being the state of affairs, a less sum than that proposed, it is demonstrably evident, will not be found adequate. the question on concurring in this amendment was carried in the affirmative. the other amendments were agreed to, with amendments. tuesday, july . _seat of government._ the house resolved itself into a committee of the whole on the bill sent from the senate for establishing the temporary and permanent seat of the government of the united states, mr. boudinot in the chair. mr. sherman.--as this bill respects the permanent residence of the government, which is an important subject, it ought to be a matter of inquiry, whether the place proposed is the real centre of population and territory or not? he thought it too far southward. he moved, therefore, that the potomac should be struck out, and a district to include the town of baltimore be inserted. mr. burke seconded this motion. mr. lee desired the gentleman to inform the committee where he meant the temporary residence should be, provided this motion should be carried. mr. sherman said, he had no objection to making philadelphia the temporary residence, as soon as it was convenient. he then mentioned several particulars which would render it inconvenient to go there at present. mr. huntington said, that the only reason for removing, which he had ever heard was, that this place is not so central. if there is any force in the reasoning, he wished not to go to a place less central. he adverted to the mode of conveyance to this place, generally adopted by members to get to the seat of government. he supposed that the present centre was somewhere between philadelphia and baltimore; but the place contemplated is very much removed from the centre, more than three hundred miles west. with respect to centrality, he said that it is not an idea which predominates in regard to any other country of which he knew any thing respecting the geography; other and various important considerations operated in fixing the seat of government. mr. white observed, that if this house was alone to be consulted, on the principle of accommodation, baltimore might answer; but when it is considered that this bill originated in the other house, who have an equal voice with us in determining the question, and in which this place has been repeatedly rejected, it is evident, that, if the clause is struck out the bill will be lost. he then controverted the calculations of the gentleman last speaking, and stated the difference of travel between the southern and northern distances, which is made to be as four and one-half to one; but he said, that so far as respected himself, he should make no difficulty on that account; but the accommodation of the citizens who may have business at the seat of government is a consideration of very great importance. with respect to the uncentral situation of the seat of government in other countries, this arose from the mere whims of the sovereigns of those kingdoms; but modern policy has obliged the people of european countries, (i refer particularly to great britain,) to fix the seat of government near the centre of trade. it is the commercial importance of the city of london which makes it the seat of government; and what is the consequence? london and westminster, though they united send only six members to parliament, have a greater influence on the measures of government than the whole empire besides. this is a situation in which we never wish to see this country placed. he concluded by observing, that if this amendment is agreed to, the bill will be lost, and we shall be without either a temporary or permanent residence. mr. lee, after a few introductory observations, entered into a consideration of the relative interests of the southern, middle, and northern states. he interspersed a variety of reflections, tending to conciliate and blend those different interests--and to disseminate the sentiments of union and concord. he alluded particularly to the great object of funding the debts of the united states; the seat of government will concentrate the public paper. hence he inferred the necessity of a situation from whence all parts of the union may be equally benefited. from these considerations, he deduced the necessity of placing the government in a central situation. he observed, that while the present position continued to be the seat of government, the agriculture of the states to the eastward is invigorated and encouraged, while that to the southward is languishing and expiring. he then showed the fatal tendency of this preponderating encouragement to those parts of the country, already considered as the strongest parts of the union--and from the natural operation of these principles he inferred that the interest of the southern states must be eventually swallowed up. the decision of the senate, said he, affords a most favorable opportunity to manifest that magnanimity of soul, which shall embrace, upon an extensive, liberal system, the best interest of the great whole. this cannot be done while the present unequal situation of the seat of government of the united states continues. nations have their passions as well as individuals. he drew an alarming picture of the consequences to be apprehended from disunion, ambition and rivalship. he then gave a pleasing sketch of the happy effects to be derived from a national, generous, and equal attention to the southern and northern interests. will gentlemen, said he, blast this prospect by rejecting the bill? i trust they will not. he then entered into the merits of the question. the states of delaware, pennsylvania, maryland, and virginia, which contribute more than one-half to the revenue, and which have the only rival claim to the permanent seat of government, are satisfied with the arrangement in the bill. that philadelphia is the nearest centre of the present wealth and population of the united states, the gentlemen from new york themselves will confess; the potomac will become the nearest centre for a permanent residence probably by the period proposed--to oppose this, therefore, will be acting from merely local motives. the gentleman moves to insert baltimore. mr. l. insisted that baltimore is as far south as the place proposed, besides being exposed by its frontier position on the sea; we are not confined, said he, to a particular spot on the potomac; we may fix on a place as far north as the gentleman from connecticut wishes. i consider the motion, therefore, calculated to destroy the bill, and ought to be opposed by every one who is in favor of a southern situation. this state has no pretensions to the permanent residence. it is true the citizens of this place have put themselves to a great expense to accommodate the government, and are entitled to much praise for their exertions; but he wished to take up the subject on national ground, and to have it decided on principles which apply to the best interests of the whole. he then referred to a map of the potomac, and the adjacent country, which lay on the table, and which had been sent from the executive of the state of virginia. he referred also to other papers and documents. mr. burke said, he wished that the whole business of the temporary and permanent residence might now be settled. he exculpated the members who are in favor of baltimore from all design to defeat the present bill. he referred to some observations which had been made on the conduct of the members of the states south of virginia, and said, that they had consulted the interest of the whole. one reason why he was in favor of the motion was, because he preferred baltimore to conococheague. he thought a populous city better than building a palace in the woods. another reason was, that there was no political necessity existing for removing the government from new york to philadelphia. he said that the measure would excite the most turbulent passions in the minds of the citizens. it is unjust to the people of this city, to remove from this place till the expense they have incurred is repaid them. it is a breach of honesty and justice. it is injustice to the state--to the whole nation. he entered into a consideration of their sacrifices and services. he thought it a very extraordinary measure indeed. it is calculated, said he, to arrest the funding system, and to throw every thing into confusion. if the bill is passed in its present form, congress will never leave philadelphia; for the commissioners to be appointed will incur no penalty for a neglect of doing their duty. this is a most essential defect in the bill, and there are other defects in it. he spoke in handsome terms of the state of pennsylvania. he said he had as high an opinion of that state, as any man whatever, but he was afraid of their influence; and that state was the last in which he would ever consent the permanent seat of government should be. he then adverted to the influence of the members from that state, who by their political management, had raised a storm in the united states. [here mr. burke was called to order.] after a short interruption, he proceeded, and said a quaker state was a bad neighborhood for the south carolinians. here he adverted to the quaker business last winter. he objected to philadelphia, also, on account of there being no gallery in the house proposed for the accommodation of congress--an open gallery he considered as a very important check to the legislature. mr. lawrence.--the gentleman from virginia has observed, that the object of the amendment is to defeat the bill. he has also mentioned the states which are most particularly interested in the question. mr. l. said, the state of new york might have been considered. he wished the motion might succeed, because he thought that it would conduce to the peace of the union. he objected to the place proposed for the permanent residence; by the bill it is conceded that the place is not, at present, a suitable position. by what magic can it be made to appear it will be more proper at the end of ten years? what reason can be given why those parts of the union should not populate which are at a distance from the potomac, in proportion to those parts in the vicinity of that place? i presume none can be assigned. why, then, is a period of ten years to expire, previous to going there? the reason is plain. the people would not now consent to have the government dragged to so remote a part of the united states. he then adverted to the funding business, and other important matters which remain to be decided on, and very strongly intimated that these questions were to be determined agreeable to the fate of this bill. he showed, from a variety of particulars, that philadelphia would become the permanent residence. he then adverted particularly to the several parts of the bill. the first was respecting the place where it is proposed to erect the public buildings. he said, they could not be erected within the time mentioned, and showed the various difficulties which would attend the whole business. he then stated the advantages of baltimore, and said that that place would have obtained in the senate, if the maryland senators would have voted for it. he concluded by observing, that, as no necessity exists for removing the temporary residence, he hoped that congress would sit down contented where they are. mr. bloodworth observed, that as the funding bill had been alluded to, he could wish that the objection from that quarter might be taken out of the way. he moved that the committee should rise, in order to take up the ways and means. mr. stone.--all we seem to differ about is whether baltimore or the potomac shall be the seat of the government; and if this was all, the delegates of that state might fold their arms and sit down contented; but the state of maryland has been placed in the situation of tantalus. he then stated how the gentlemen had formerly voted, who now appear in favor of baltimore. had the bill come down from the senate with baltimore inserted, instead of potomac, he should have had no difficulty in determining how to act; but he conceived, that if the amendment now proposed should take place, nothing would be done, and the business will be left in a very inauspicious state. from this and other considerations, he was resolved not to be drawn off from his present determination by any motion, amendment, or modification of the bill whatever. with respect to himself, he had no election between the town of baltimore and the potomac; yet, as a marylander, he would, if he saw a prospect of success, vote for the town of baltimore; but as it respects the united states, he should vote for the potomac; and on this idea he was willing to make some sacrifices. he considered the subject as one of the most painful and disagreeable that could be agitated, and he wished to have the business finally and unalterably fixed. mr. seney also considered this as an unhappy question to come before the house at this time. the state of maryland is as much divided on the subject as the united states appeared to be; a great rivalship subsists between the potomac and susquehanna rivers, and he doubted not but that when the question was ultimately decided, it would be either on the one or the other of those rivers. he agreed with mr. lee, that pennsylvania, maryland and virginia, were the only states who could make any reasonable pretensions for the seat of government; but a majority of voices from these states had been against the potomac. pennsylvania and maryland, he observed, had given the preference to the susquehanna. mr. s. then noticed some transactions of the legislature of maryland, which he said clearly evinced their determination to support the pretensions of the susquehanna. maryland certainly had an equal right with pennsylvania and virginia to have her interests consulted. the interests of maryland, it appeared, were now to be sacrificed to those two adjoining states. and however flattering it may seem to maryland to fix the seat of government on her side of the potomac, the real advantages were in a great measure nugatory, as it would be but a very small portion of that state that could reap any benefit therefrom. the real advantages would undoubtedly result to pennsylvania and virginia. it appeared somewhat extraordinary to him, that gentlemen should be willing to confine the residence to a particular spot, previous to their removing to a permanent residence. why is it necessary to fix upon philadelphia for ten years? surely this is putting the government in a very ineligible situation, for it is by no means improbable that many serious and important occurrences might render a removal highly expedient, perhaps unavoidable. besides, after the government shall have remained ten years in philadelphia, the probability of quitting it for the potomac appeared to be very slight indeed. for though it was understood by the bill that the offices were to be removed to the potomac, yet if a majority in either house were opposed to going there, congress would remain at philadelphia, and they would be obliged to repeal the bill from necessity. mr. scott said, he should not notice many things which had been offered on the subject. he would only observe, that from the town of baltimore there is no water conveyance to the interior country; but from the proposed site on the potomac, there are two hundred miles navigation directly into the heart of the country. nor is baltimore more northerly than the position contemplated. a connection with the western country is of the utmost consequence to the peace and union of the united states, let the gentlemen from the sea-coast say what they will. mr. madison.--in order to decide this question rightly, we ought to compare the advantages and disadvantages of the two places as they relate to the good of the united states. now, i will defy any gentleman, however sanguine he may be with respect to baltimore, to point out any substantial advantage that is not common to the potomac; and i defy them to disprove that there are not several important advantages belonging to the potomac, which do not appertain to baltimore. the committee have had ample information with respect to the northern and southern positions of the two places. in point of salubrity of air, without disparaging the pretensions of baltimore, the potomac is at least equally favored in that respect. in regard to centrality of situation, the potomac has undoubtedly the advantage. in respect to security from invasion, i aver the potomac has the advantage also. with relation to the western country, there is not a shadow of comparison. if we should go as far south as baltimore, why not an equal distance south-west to the potomac? those who are acquainted with the country on the potomac, and that in the neighborhood of baltimore, do not hesitate to give the preference to the potomac. it is true, that baltimore has respectable resources; her rapid growth is a clear proof of it; but look at the resources of the potomac; the great range of rich country that borders on it, and see if these are not advantages that must, in a short time, produce a commercial town. sir, a period might be named, not exceeding ten years, within which the town of baltimore obtained the greater part of its increase and consequence; a period of ten years will produce the same effects on the potomac, because the same causes exist; and when, superadded to this, the residence of government shall be there, there can be no doubt but that there will be every accommodation that can be desired. it is said, that before the ten years expire, a repeal of the act may take place, and thus congress be kept at philadelphia. but what more can we do than pass a law for the purpose? it is not in our power to guard against a repeal. our acts are not like those of the medes and persians, unalterable. a repeal is a thing against which no provision can be made. if that is an objection, it holds good against any law that can be passed. if those states that may have a superiority in congress at a future day will pay no respect to the acts of their predecessors, or to the public good, there is no power to compel them. but i flatter myself that some respect will be paid to the public interest, and to the plighted faith of the government. as to centrality, the best evidence we have at this time in favor of the potomac is the different travelling of the members; and this, sir, proves incontestably that the proposed place on the potomac is near the centre. if any arguments could be brought against it, it is its being too far to the northward. for the mileage south of the potomac is twelve thousand seven hundred and eighty-two miles, to the north of it twelve thousand four hundred and twenty-two miles. if to this rhode island be added, it will not be more than equal. if the bill once passes, i am not under any apprehensions of a repeal; but if danger of repeal does exist, it is of that kind against which we cannot guard. sir, we should calculate on accepting the bill as it now stands; we ought not to risk it by making any amendment. we have it now in our power to procure a southern position. the opportunity may not again speedily present itself. we know the various and jealous interests that exist on this subject. we should hazard nothing. if the potomac is struck out, are you sure of getting baltimore? may no other place be proposed? instead of baltimore, is it not probable we may have susquehanna inserted, perhaps the delaware? make any amendment, sir, and the bill will go back to the senate. are we sure that it will come back into our possession again? by amending, we give up a certainty for an uncertainty. in my opinion, we shall act wisely, if we accept the bill as it now stands, and i beg leave to press it on gentlemen not to consent to any alteration, lest it be wholly defeated and the prospect of obtaining a southern position vanish for ever. mr. gerry said, he rose with greater reluctance on this than he ever did on any former occasion; and it is because it appears pretty evident the advocates of the bill are sure of a majority, and are determined not to change their minds let what arguments will be offered on the subject. the business of establishing the permanent residence is contrary to the sentiments of a majority of the members of this house, and of the senate, as they have both negatived a bill for this purpose the present session. it is to be regretted that it has ever been brought forward, for it is very evident that it has had a very pernicious influence on the great business of funding the public debt. he then mentioned the former removals of congress, which had never been complained of, as the public business was never neglected. he said, that if the present bill is carried into execution, a very great uneasiness will ensue; for the measures of congress, and not their residence, are the objects of concern to the people. those states who think that they shall be injured, it cannot be expected will then acquiesce. he then gave an account of the process of this measure the last session. the travelling has been mentioned. this, he said, could not be considered as an argument in favor of the bill, for the expense is not paid by particular states, it comes out of the common treasury. he asserted that the accessibility to new york is better than to the potomac. he contended that the risk by land is greater than by water. he stated the advantages that the southern members derived from coming to the northward, while, on the other hand, is there, asked he, any thing to balance the risk and difficulties which the northern members must encounter in such a southern situation? he said it was highly unreasonable to fix the seat of government in such a position as to have nine states out of thirteen to the northward of the place. he adverted to the sacrifices which the northern states are ready to make in being willing to go so far south as baltimore. he contended that the explicit consent of the eastern states ought to be obtained, before they are dragged still further south. he ridiculed the idea of fixing the government at conococheague. he did not think there was any serious intention of ever going to this indian place. he considered the whole business as a mere manoeuvre. baltimore holds out the only prospect of a permanent seat of government. he recapitulated the account which before had been given. from this he adverted to the general expectation of the public with respect to the government's tarrying here till the permanent seat was established. he particularized the expenses that had been incurred by the citizens, and for which they merited great honor. he said, it had been promised to new york that this place should be the temporary residence of congress, and on this engagement they came into an unconditional adoption of the constitution. should this bill pass, what can it be denominated but a delusion, a deception, sanctioned by congress itself? he remarked on the several observations offered by messrs. madison, lee, stone, and scott. mr. vining.--when i find arguments made use of to inflame the minds of gentlemen against the members of this house, i think it my duty to notice such observations. attempts are made to hold up, in an odious point of light, the members of pennsylvania. sir, it is a fact, which your journals will justify, that the members from pennsylvania voted the last session against philadelphia. i trust that none of those observations will have the least influence on the mind of one single individual. we are sent here to do the public business, and i trust that our constituents have not sent men that are to be deterred from doing their duty by such insidious insinuations, such ill-founded suggestions of deceiving and deluding the citizens of this place. mr. v. added some more strictures on mr. gerry's observations, and then entered largely into the merits of the question. he supported the bill on general principles, and noticed the several objections that had been made by different members. he imputed the embarrassments of the public business to the assumption, and not to the subject of residence. mr. clymer made a few remarks on the observations of mr. burke, which were not distinctly heard. the committee rose, and reported progress wednesday, july . _seat of government._ the house again resolved itself into a committee on the bill for establishing the temporary and permanent seat of government, mr. boudinot in the chair. mr. burke made some remarks on the observations of mr. vining, in which he exculpated himself from all design to excite mobs and tumults among the citizens of new york, as had been insinuated by that gentleman. he declared that he believed the citizens incapable of behaving so much out of character. for himself, he disclaimed any such idea. he further observed, that the delegates from pennsylvania were fully competent to advocate the interests of their particular state; they had given abundant evidence of their abilities; they therefore did not need the assistance of the gentleman from delaware. mr. hartley observed, that it was the fault of the new york senators last year that they did not vote for a four years' residence in their own city, and the permanent one at germantown, which they could then have carried. he defended himself and his colleagues from any charge of want of generosity, and also defended the character of the quakers. the gentleman (mr. burke) is not acquainted with the people called quakers or their history, or he would entertain different sentiments concerning them. under the famous william penn, they settled the former province of pennsylvania, between the years and , near the close of the last century; and such was their justice, wisdom, moderation and good policy, that they gained reputation abroad. men emigrated from the european world to this land of freedom. they preserved peace at home; for it was not until the year , in a war, fomented on the borders of another province, that an inhabitant of pennsylvania was killed by the hands of an indian. the quakers had always been remarkable for their moral laws, for the plainness of their manners, and their benevolence. nay, should the gentleman go to philadelphia, he will find that these people will treat him as well as any other society. they merit not the abuse which has been so frequently thrown upon them. mr. bloodworth thought that if the new york senators had acted wrong, yet the people should not be blamed for it. the proposition of mr. burke was so reasonable and just, that he said he could not avoid approving of it. mr. lawrence defended the new york senators, and explained the reasons of their former conduct, which, when it was known, he believed, would rather merit the approbation of the people. he then proceeded to remark upon the conduct of new york during the war and since. her revenue had been thrown into the treasury of the united states, and every succor that could possibly be expected was received from her. upon the whole, he wished the dispute of residence could be left to the decision of the three northern and three southern states; and he appealed to the house, as politicians and men, for the justice of the case. mr. wadsworth rose next. he was proceeding when he was called to order. after some altercation on the question of order, mr. page spoke to the merits of the question, in which he introduced several conciliatory observations, and then added, as to the place for the permanent residence of congress, any unprejudiced disinterested man in the world, looking over the map of the united states, would put his finger on the district pointed out in the bill, and say, "this is your place, sir." as to going to philadelphia, it is not my wish to go and stay there as proposed in the bill; but i say, with my colleague, (mr. madison,) that i consent to go there to get into a more central position, and to be fairly on our way to the permanent residence on the potomac. as to our present situation, the citizens of new york themselves acknowledge, nay, even the member himself who has called me to order, acknowledges that it has no pretensions to be the permanent residence; and it must be confessed that in proportion as it is improper for the permanent residence, it must be improper for the temporary residence. the continuance of congress here has been acquiesced in by the southern states, merely on the supposition that a removal to the permanent residence would take place sooner if congress sat here than at some other place more central. the wise and virtuous citizens of new york know this, and cannot resist the removal. sir, i was not apprehensive that the observations made by gentlemen yesterday could excite an improper resentment in their minds. there is not a city in the world in which i would sooner trust myself and congress than in new york; for it is superior to any place i know for the orderly and decent behavior of its inhabitants; but, sir, when the member behind me, (mr. burke,) who alluded to me when he was last up, said that they were injured and robbed by congress, i told him, as a friend, that had i been in the chair, i should have called him to order. i confess i was shocked to hear that gentleman's declarations repeated by a member on the other side of the house, who is remarkable for his coolness and his peculiar attention to every sentiment offered in debate (mr. gerry.) i took the liberty, when the house adjourned, to tell that gentleman, perhaps too freely, what i thought respecting those declarations; if i gave him, or the member behind me any offence, i ask their pardon; but i still think i should have done my duty had i taken notice of the impropriety of their declarations in my place in the house, as a friend to order and freedom of debate. mr. livermore said, that the motion for striking out the potomac and inserting baltimore is so reasonable in itself, that i cannot conceive there should be one person opposed to it. he observed, that baltimore is as far south as the potomac; the members will then have as far to go to one as the other. there is a river, it is said, which runs two hundred miles into the country as far as the allegany mountains; what advantage can this be to congress? i can conceive none, except that it may be to send the acts of congress by water to the foot of the allegany mountains. he thought that the centre of population was the only true centre. it is not pretended that the potomac is at present this centre; but it is said that it will in time become the centre of population. what reason is there for any such supposition? the place in which this favorite spot is has been as long settled as any other part of the continent, but the population has not kept pace with many other parts of the united states; it is therefore entirely chimerical and problematical whether it ever will become the centre of population. he then enlarged on the superior advantages of a populous city for the seat of government, and concluded by repeating that the amendment is so reasonable in itself that he hoped every member of the committee would vote for it. mr. gerry.--in discussing this subject yesterday, i made use of such arguments as appeared to me pertinent to the occasion. but, sir, those arguments have had the most extraordinary construction put on them by the gentleman from delaware; they have been represented as tending to excite mobs, and to raise insurrections in this city. sir, i insist that the observations i made had a direct contrary tendency. i said that the bill contained those malignant principles which had a direct tendency to agitate and inflame the minds of the citizens of america. those principles i was endeavoring to expose, and to show what must be their obvious effects. is this exciting mobs? directly the reverse, in my opinion. i never had any such idea; and as to the citizens of new york, i have too just a sense of their wisdom and good judgment to harbor such a sentiment. he then adverted to the constitution, to show that there could be no danger of an insurrection or rebellion against the government. congress is vested with a sufficient power to protect themselves from every insult whatever; they have a right to call forth the whole militia of the union for their protection. [here mr. g. was called to order, and some altercation ensuing, mr. g. said he would say nothing farther on this particular topic.] he then proceeded to state his arguments against the potomac, in the course of which he noticed some observations which had fallen from messrs. vining and clymer. one of the gentlemen had said that "pennsylvania had a right to the seat of the general government." this he denied; he said no state in the union could pretend to such a right; congress alone has a right to determine where the seat of government shall be. he entered into a lengthy discussion on the merits of the potomac, and among other observations asserted that taking so southern a situation would amount to a disqualification of many of the northern members, who would forego their election rather than attend the national legislature on that river. mr. vining read a report of a committee of the late congress, respecting two seats of government, in which report georgetown was mentioned. mr. gerry, being one of this committee, rose to explain. mr. sedgwick, in a speech of considerable length, stated his objections to so southern a situation as either baltimore or the potomac, and said that he should have the unhappiness, he feared, of dividing on the question from his colleagues. mr. sherman offered some calculations respecting distances, and made baltimore to be the nearest to the centre of any other place that had been mentioned. mr. white said, he had no idea of altering the sentiments of a single member of the committee; he did not expect the gentleman from new hampshire would agree with him. the gentleman from massachusetts had said something about the government going into the wilderness; he said it was true that there was not at present every accommodation which gentlemen might wish; but there is every probability that there will be. he said that such improvements were making in the navigation of the potomac as will render it a place affording every accommodation whether congress go there or not. he instanced several places on the potomac which were at this day sufficiently populous to accommodate congress. he then adverted to situations, and observed that a line from the atlantic, east and west, to the extreme point mentioned in the bill, will intersect the state of new jersey, include the whole of delaware and maryland, and will throw thirty-one members of the representation in the southern division of the united states. he then observed, that after the present ferment is subsided, this position will be considered as a permanent bond of union; and the eastern states will find their most essential interests promoted by the measure. he adverted to the trade of massachusetts, which he said was greater to virginia than to the whole union besides; the southern states will be cordial in promoting their shipping and advancing their interests, when they observe that the principles of justice influence them on this great national question. he then remarked on the observation of mr. sherman respecting the repealing of the law, and reprobated the principles on which such observations are founded; he remarked on the attraction of populous cities, and trusted that other ideas would prevail in this country than what influenced in fixing the seats of government in europe. mr. smith (of south carolina) said, he was in favor of the motion, as the only one which held out a probability of ever fixing on a southern residence. he enlarged on the difficulty and improbability of ever removing from philadelphia. he said that it was evident, from the present representation, and what is most likely it will be ten years hence, that congress could not be removed from that place. he then stated the number of the members to the southward and northward of philadelphia, and observed that the congress that would exist at the expiration of ten years may think entirely different from the present, and will not think themselves bound by the law; but if they should, what can the measure be denominated but legislating for the next century? a system proposed the last session, which combined a much greater interest than the present, failed; and what reason have we to suppose that this bill will ever be carried into execution? he said no gentleman pretends that the place proposed is now ready for the reception of the government; and even if the buildings were now erected, is there any gentleman who would give his vote for going there? he would agree to a place in the neighborhood of baltimore, and this he supposed was the furthest southern position the gentlemen from the eastward will ever consent to. from all the views he could take of the measure, he was fully convinced that the potomac was tacked to the bill merely to carry philadelphia; he wished gentlemen seriously to consider the consequences of passing a law which would so intimately and inauspiciously affect the interests of so many people. mr. madison objected to the motion for inserting baltimore, as it would be risking the bill with a place which has already been repeatedly rejected by the senate; he religiously believed, he said, that if baltimore was inserted the bill would never pass the senate; and the fate of the bill which the gentleman mentions ought to be a serious warning to us never to risk this with an amendment; the instance, therefore, produced by the gentleman, is very much against his own argument. the question being put for striking out the word "potomac," and inserting "baltimore," it was negatived-- to . thursday, july . _general post office._ the house proceeded to consider the amendments proposed by the senate to the bill to establish the post office and post roads within the united states. the first amendment was to strike out the first and second sections, which specified and established the several roads, and to insert a clause empowering the postmaster general, under the direction of the president of the united states, to establish them. a concurrence in this amendment was opposed by messrs. bloodworth, white, steele, livermore, hartley, and gerry. it was said, that it was delegating the power of legislation to the supreme executive in one of the most important points that could be mentioned. the revenue also will centre in the hands of the executive; and in process of time this revenue may be converted into an engine destructive to the liberties of the united states; for as it is a perpetual law, and as the time may, and probably will come, when the executive may be corrupt, as the revenue increases, the officers of the department will be increased, and we do not know to what extent the consequences may be carried. it is unconstitutional, as that expressly reserves the power of establishing post offices and post roads to the legislature. it was further observed, it would be throwing a burden upon the president which he cannot execute with any convenience to himself, and, from his situation, with satisfaction to the people. the representatives of the people, who come from all parts of the united states, must be supposed to have a more competent knowledge of the proper places for establishing post roads than the postmaster general. a concurrence was advocated by mr. partridge, and mr. sedgwick. it was said, that upon an accurate calculation it was found that the roads proposed by the bill as it passed the house, are so numerous, that so far from affording a revenue, they will prove a great burden to the united states. the circumstances of the country are continually changing; the seats of government in the several states are removed from their ancient situations to one hundred miles' distance; to accommodate the people in such cases, old routes must be discontinued and new roads opened, which will be a perpetual source of legislation and unnecessary expense. this business was left to the postmaster general by the late congress, and very few complaints were heard; the postmaster general, by his office, must be the most competent judge, as the business will be a principal object of his attention, and actual surveys of the roads will be made by his assistants in all parts of the united states; but if the responsibility of this officer is divided into sixty-five parts, every one of which has its own particular convenience in view, it must appear evident that all responsibility is entirely dissipated. as to the unconstitutionality, it was said that the bill proposes no more in the present instance than is provided for in the other executive departments; the principles of conducting the business are established by the house; the mode of carrying those principles into execution is left with the executive, and this of necessity is done in almost every case whatever. the house adjourned without coming to a vote. friday, july . _seat of government._ the house proceeded to consider the bill sent from the senate for the establishing the temporary and permanent seat of government of the united states. mr. boudinot, after expressing his disapprobation of the bill generally, moved that the potomac should be struck out and the delaware inserted, and called for the yeas and nays; after some debate, this motion was negatived, as follows: yeas.--messrs. ames, benson, boudinot, floyd, foster, gerry, goodhue, grout, huntington, hathorn, leonard, lawrence, livermore, partridge, rensselaer, trumbull, schureman, sherman, sylvester, sturges, sedgwick, wadsworth-- . nays.--messrs. ashe, baldwin, bloodworth, brown, burke, cadwalader, carroll, clymer, coles, contee, fitzsimons, gilman, heister, hartley, jackson, gale, griffin, p. muhlenberg, madison, mathews, moore, page, parker, lee, steele, scott, sinnickson, stone, sevier, seney, smith, (of maryland,) smith, (of south carolina,) sumter, thatcher, tucker, vining, white, williamson, wynkoop-- . mr. ames moved to strike out potomac and insert germantown, as the permanent residence. yeas , nays . variation--mr. gilman, yea; mr. trumbull, nay. mr. smith (of maryland) moved to strike out potomac and insert between the potomac and susquehanna. yeas , nays . variation--messrs. smith, (of maryland,) smith, (of south carolina,) trumbull, and thatcher, yea; mr. sherman, nay. mr. lawrence moved to strike out potomac and insert baltimore. yeas.--messrs. ames, benson, boudinot, floyd, foster, gerry, goodhue, grout, hathorn, huntington, lawrence, leonard, livermore, rensselaer, partridge, schureman, sedgwick, seney, sherman, smith, (of maryland,) smith, (of south carolina,) sylvester, sturges, thatcher, trumbull, wadsworth-- . nays.--messrs. ashe, baldwin, bloodworth, brown, cadwalader, carroll, clymer, coles, contee, fitzsimons, gilman, gale, griffin, hartley, heister, jackson, lee, madison, mathews, moore, muhlenberg, page, parker, scott, sevier, sumter, sinnickson, steele, stone, tucker, vining, white, williamson, wynkoop-- . a motion was made to adjourn; which was also negatived. the bill was then read the third time; and on the question, shall the bill pass? the yeas and nays were as follows: yeas.--messrs. ashe, baldwin, bloodworth, brown, cadwalader, carroll, clymer, coles, contee, fitzsimons, gale, griffin, hartley, heister, jackson, lee, madison, mathews, moore, muhlenberg, page, parker, scott, sevier, sinnickson, steele, stone, sumter, vining, white, williamson, wynkoop-- . nays.--messrs. ames, benson, boudinot, burke, floyd, foster, gerry, goodhue, gilman, grout, hathorn, huntington, lawrence, leonard, livermore, partridge, rensselaer, schureman, sedgwick, seney, sherman, sylvester, smith, (of maryland,) smith, (of south carolina,) sturges, thatcher, trumbull, tucker, wadsworth-- .[ ] thursday, august . agreeably to the concurrent vote of the two houses, an adjournment took place this day--to meet in the city of philadelphia on the first monday in december next. previous to the adjournment, a unanimous vote passed both houses, returning thanks to the corporation of this city for the elegant and convenient accommodations furnished the congress of the united states. adjourned, _sine die_. first congress.--third session. held at the city of philadelphia, december , proceedings in the senate. monday, december , . the senate assembled: present, john adams, vice president of the united states, and president of the senate. from new hampshire, john langdon and paine wingate. from massachusetts, tristram dalton. from connecticut, oliver ellsworth. from new york, rufus king. from pennsylvania, william maclay and robert morris. from delaware, richard bassett. from north carolina, samuel johnston and benjamin hawkins. from south carolina, pierce butler and ralph izard. from georgia, william few. philemon dickinson, from the state of new jersey, produced his credentials and took his seat in the senate, in the place of governor paterson. james monroe, appointed by the legislature of the state of virginia, in the place of john walker, who was appointed by the executive of the said state in the room of william grayson, deceased, produced his credentials, and took his seat in the senate. the vice president administered the oath required by law to mr. dickinson and mr. monroe, respectively. a letter was read from william paterson, governor of the state of new jersey, communicating the resignation of his appointment to be a senator of the united states. _ordered_, that the secretary inform the house of representatives that a quorum of the senate is assembled, and ready to proceed to business. tuesday, december . a message from the house of representatives informed the senate that a quorum of that body is assembled and ready to proceed to business. messrs. langdon and morris were appointed a committee, on the part of the senate, to inform the president of the united states that a quorum of the two houses is assembled, and will be ready, in the senate chamber, at such time as he may appoint, to receive any communication which he may be pleased to make. mr. langdon, in the course of the day, reported that the president would meet the two houses, as proposed, to-morrow, at o'clock. wednesday, december . jonathan elmer, from new jersey; caleb strong, from massachusetts; and george read, from the state of delaware; attended. a letter from the commissioners of the city and county of philadelphia was received, offering to congress the county court-house for their accommodation during their residence in philadelphia. the members of the house of representatives having taken their seats, the president of the united states entered the senate chamber, and addressed both houses as follows: _fellow-citizens of the senate and house of representatives:_ in meeting you again, i feel much satisfaction in being able to repeat my congratulations on the favorable prospects which continue to distinguish our public affairs. the abundant fruits of another year have blessed our country with plenty, and with the means of a flourishing commerce. the progress of public credit is witnessed by a considerable rise of american stock abroad as well as at home; and the revenues allotted for this and other national purposes have been productive beyond the calculations by which they were regulated. this latter circumstance is the more pleasing, as it is not only a proof of the fertility of our resources, but as it assures us of a further increase of the national respectability and credit; and, let me add, as it bears an honorable testimony to the patriotism and integrity of the mercantile and marine part of our citizens. the punctuality of the former in discharging their engagements has been exemplary. in conforming to the powers vested in me by acts of the last session, a loan of three millions of florins, towards which some provisional measures had previously taken place, has been completed in holland. as well the celerity with which it has been filled, as the nature of the terms, (considering the more than ordinary demand for borrowing, created by the situation of europe,) give a reasonable hope that the further execution of those powers may proceed with advantage and success. the secretary of the treasury has my directions to communicate such further particulars as may be requisite for more precise information. since your last sessions i have received communications by which it appears that the district of kentucky, at present a part of virginia, has concurred in certain propositions contained in a law of that state; in consequence of which the district is to become a distinct member of the union, in case the requisite sanction of congress be added. for this sanction application is now made. i shall cause the papers on this very important transaction to be laid before you. the liberality and harmony with which it has been conducted will be found to do great honor to both the parties; and, the sentiments of warm attachment to the union and its present government, expressed by our fellow-citizens of kentucky, cannot fail to add an affectionate concern for their particular welfare to the great national impressions under which you will decide on the case submitted to you. it has been heretofore known to congress, that frequent incursions have been made on our frontier settlements by certain banditti of indians from the north-west side of the ohio. these, with some of the tribes dwelling on and near the wabash, have of late been particularly active in their depredations; and, being emboldened by the impunity of their crimes, and aided by such parts of the neighboring tribes as could be seduced to join in their hostilities, or afford them a retreat for their prisoners and plunder, they have, instead of listening to the humane invitations and overtures made on the part of the united states, renewed their violences with fresh alacrity, and greater effect. the lives of a number of valuable citizens have thus been sacrificed, and some of them under circumstances peculiarly shocking, whilst others have been carried into a deplorable captivity. these aggravated provocations rendered it essential to the safety of the western settlements, that the aggressors should be made sensible that the government of the union is not less capable of punishing their crimes, than it is disposed to respect their rights and reward their attachments. as this object could not be effected by defensive measures, it became necessary to put in force the act which empowers the president to call out the militia for the protection of the frontiers; and i have, accordingly, authorized an expedition, in which the regular troops in that quarter are combined with such drafts of militia as were deemed sufficient: the event of the measure is yet unknown to me. the secretary of war is directed to lay before you a statement of the information on which it is founded, as well as an estimate of the expense with which it will be attended. the disturbed situation of europe, and particularly the critical posture of the great maritime powers, whilst it ought to make us the more thankful for the general peace and security enjoyed by the united states, reminds us, at the same time, of the circumspection with which it becomes us to preserve these blessings. it requires, also, that we should not overlook the tendency of a war, and even of preparations for a war, among the nations most concerned in active commerce with this country, to abridge the means, and thereby at least to enhance the price of transporting its valuable productions to their proper markets. i recommend it to your serious reflection how far, and in what mode, it may be expedient to guard against embarrassments from these contingencies, by such encouragements to our own navigation as will render our commerce and agriculture less dependent on foreign bottoms, which may fail us in the very moments most interesting to both of these great objects. our fisheries, and the transportation of our own produce, offer us abundant means for guarding ourselves against this evil. your attention seems to be not less due to that particular branch of our trade which belongs to the mediterranean. so many circumstances unite in rendering the present state of it distressful to us, that you will not think any deliberations misemployed which may lead to its relief and protection. the laws you have already passed for the establishment of a judiciary system have opened the doors of justice to all description of persons. you will consider, in your wisdom, whether improvements in that system may yet be made; and, particularly, whether a uniform process of execution, on sentences issuing from the federal courts, be not desirable through all the states. the patronage of our commerce, of our merchants, and seamen, has called for the appointment of consuls in foreign countries. it seems expedient, to regulate by law, the exercise of that jurisdiction, and those functions which are permitted them, either by express convention, or by a friendly indulgence, in the places of their residence. the consular convention, too, with his most christian majesty, has stipulated, in certain cases, the aid of the national authority to his consuls established here. some legislative provision is requisite to carry these stipulations into full effect. the establishment of the militia, of a mint, of standards of weights and measures, of the post office and post roads, are subjects which (i presume) you will resume of course, and which are abundantly urged by their own importance. _gentlemen of the house of representatives:_ the sufficiency of the revenues you have established for the objects to which they are appropriated, leaves no doubt that the residuary provisions will be commensurate to the other objects for which the public faith stands now pledged. allow me, moreover, to hope that it will be a favorite policy with you not merely to secure a payment of the debt funded, but as far and as fast as the growing resources of the country will permit, to exonerate it of the principle itself. the appropriation you have made of the western lands explains your dispositions on this subject, and i am persuaded the sooner that valuable fund can be made to contribute, along with other means, to the actual reduction of the public debt, the more salutary will the measure be to every public interest, as well as the more satisfactory to our constituents. _gentlemen of the senate and house of representatives:_ in pursuing the various and weighty business of the present session, i indulge the fullest persuasion that your consultations will be equally marked with wisdom, and animated by the love of your country. in whatever belongs to my duty, you shall have all the co-operation which an undiminished zeal for its welfare can inspire. it will be happy for us both, and our best reward, if, by a successful administration of our respective trusts, we can make the established government more and more instrumental in promoting the good of our fellow-citizens, and more and more the object of their attachment and confidence. geo. washington. united states, _december_ , . the president of the united states having retired, and the two houses being separated, messrs. ellsworth, king, and izard, were appointed a committee to prepare and report the draft of an address to the president, in answer to his speech to both houses. thursday, december . _to the president, and the honorable the congress of the united states of america._ the memorial of the representatives of the people of kentucky, in convention assembled, pursuant to an act of the legislature of virginia, passed the th december, , entitled "an act concerning the erection of the district of kentucky into an independent state," humbly showeth: that the inhabitants of this country are warmly devoted to the american union, and as firmly attached to the present happy establishment of the federal government, as any of the citizens of the united states. that, migrating from hence, they have, with great hazard and difficulty, effected their present settlements. the hope of increasing numbers could alone have supported the early adventurers under those arduous exertions. they have the satisfaction to find that hope verified. at this day, the population and strength of this country render it fully able, in the opinion of your memorialists, to form and support an efficient domestic government. the inconveniences resulting from its local situation, as a part of virginia, at first but little felt, have for some time been objects of their most serious attention; which occasioned application to the legislature of virginia for redress. here your memorialists would acknowledge, with peculiar pleasure, the benevolence of virginia in permitting them to remove the evils arising from that source, by assuming upon themselves a state of independence. this they have thought expedient to do, on the terms and conditions stipulated in the above recited act; and fixed on the first day of june, , as the period when the said independence shall commence. it now remains with the president and the congress of the united states to sanction these proceedings, by an act of their honorable legislature, prior to the first day of november, , for the purpose of receiving into the federal union the people of kentucky, by the name of the state of kentucky. should this determination of your memorialists meet the approbation of the general government, they have to call a convention, to form a constitution, subsequent to the act of congress, and prior to the day fixed for the independence of this country. when your memorialists reflect upon the present comprehensive system of federal government, and when they also recollect the determination of a former congress on this subject, they are left without a doubt that the object of their wishes will be accomplished. and your memorialists, as in duty bound, shall for ever pray. george muter, _president_. attest, thomas todd, _clerk of the con._ a letter from the secretary of war was communicated to the vice president, enclosing sundry papers referred to in the president's speech to both houses of congress, on the th instant, which, being read, were ordered to lie for consideration. friday, _december_ . a letter from monsieur beniere, president of the commonalty of paris, addressed to the president and members of congress of the united states, with twenty-six copies of a civic eulogy on benjamin franklin, pronounced the st day of july, , in the name of the commonalty of paris, by monsieur l'abbé fauchet, was delivered to the senate, by mr. lear, secretary to the president of the united states. read, and _ordered_, that the letter and copies of the eulogy be sent to the house of representatives. a message from the house of representatives informed the senate, that they have, on their part, appointed the rev. dr. blair one of the chaplains of the present congress. mr. ellsworth, from the committee appointed to prepare and report the draft of an address to the president of the united states, reported accordingly; and, the report being amended, was adopted, as followeth: _to the president of the united states of america._ we receive, sir, with particular satisfaction, the communications contained in your speech, which confirm to us the progressive state of the public credit, and afford, at the same time, a new proof of the solidity of the foundation on which it rests; and we cheerfully join in the acknowledgment which is due to the probity and patriotism of the mercantile and marine part of our fellow-citizens, whose enlightened attachment to the principles of good government is not less conspicuous in this than it has been in other important respects. in confidence that every constitutional preliminary has been observed, we assure you of our disposition to concur, in giving the requisite sanction to the admission of kentucky as a distinct member of the union; in doing which, we shall anticipate the happy effects to be expected from the sentiments of attachment towards the union, and its present government, which have been expressed by the patriotic inhabitants of that district. while we regret that the continuance and increase of the hostilities and depredations which have distressed our north-western frontiers, should have rendered offensive measures necessary, we feel an entire confidence in the sufficiency of the motives which have produced them, and in the wisdom of the dispositions which have been concerted, in pursuance of the powers vested in you; and, whatever may have been the event, we shall cheerfully concur in the provisions which the expedition, that has been undertaken, may require on the part of the legislature, and in any other which the future peace and safety of our frontier settlements may call for. the critical posture of the european powers will engage a due portion of our attention, and we shall be ready to adopt any measures which a prudent circumspection may suggest, for the preservation of the blessings of peace. the navigation and the fisheries of the united states are objects too interesting not to inspire a disposition to promote them, by all the means which shall appear to us consistent with their natural progress and permanent prosperity. impressed with the importance of a free intercourse with the mediterranean, we shall not think any deliberations misemployed which may conduce to the adoption of proper measures for removing the impediments that obstruct it. the improvement of the judiciary system, and the other important objects to which you have pointed our attention, will not fail to engage the consideration they respectively merit. in the course of our deliberations upon every subject we shall rely upon that co-operation which an undiminished zeal, and incessant anxiety for the public welfare, on your part, so thoroughly ensure; and, as it is our anxious desire, so it shall be our constant endeavor, to render the established government more and more instrumental in promoting the good of our fellow-citizens, and more and more the object of their attachment and confidence. _ordered_, that the address to the president of the united states, in answer to his speech, be presented by the vice president, attended by the senate, and that the committee which reported the address wait on the president, and desire to be informed at what time and place he will receive the same. monday, december . william s. johnson, from connecticut, and philip schuyler, from new york, attended. mr. ellsworth, from the committee appointed on the th, to wait on the president of the united states, reported: that it would be agreeable to the president to receive the address of the senate, in answer to his speech to both houses of congress, on monday next, at o'clock. whereupon, the senate waited upon the president of the united states at his own house, and the vice president, in their name, communicated to him the address agreed to on the th instant; to which the president of the united states was pleased to make the following reply: gentlemen: these assurances of favorable attention to the subjects i have recommended, and of entire confidence in my views, make the impression on me which i ought to feel. i thank you for them both, and shall continue to rely much for the success of all our measures for the public good, on the aid they will receive from the wisdom and integrity of your councils. geo. washington. the senate returned to the senate chamber. wednesday, december . joseph stanton, junior, from rhode island, attended. monday, january . john henry, from maryland, attended. monday, january . james gunn, from georgia, attended. friday, january . charles carroll, from the state of maryland, attended. monday, february . the senate on executive business. the following message from the president of the united states was under consideration: _gentlemen of the senate:_ conceiving that in the possible event of a refusal of justice on the part of great britain, we should stand less committed should it be made to a private rather than a public person, i employed mr. gouverneur morris, who was on the spot, and without giving him any definite character, to enter informally into the conferences before mentioned. for your more particular information, i lay before you the instructions i gave him, and those parts of his communications wherein the british ministers appear either in conversation or by letter. these are two letters from the duke of leeds to mr. morris, and three letters of mr. morris, giving an account of two conferences with the duke of leeds, and one with him, and mr. pitt. the sum of these is, that they declare, without scruple, they do not mean to fulfil what remains of the treaty of peace to be fulfilled on their part, (by which we are to understand the delivery of the posts and payment for property carried off,) till performance on our part, and compensation where the delay has rendered the performance now impracticable; that on the subject of a treaty of commerce they avoided direct answers, so as to satisfy mr. morris they did not mean to enter into one unless it could be extended to a treaty of alliance offensive and defensive, or unless in the event of a rupture with spain. as to the sending a minister here, they made excuses at the first conference, seemed disposed to it in the second, and in the last express an intention of so doing. their views being thus sufficiently ascertained, i have directed mr. morris to discontinue his communications with them. geo. washington. united states, _feb._ , . _ordered_, that this message lie for consideration. tuesday, february . richard henry lee, from virginia, attended. no business of importance before the senate to-day. thursday evening, march . a message from the house of representatives informed the senate that they, having completed the legislative business before them, intend shortly to adjourn without day. _ordered_, that the secretary acquaint the house of representatives that the senate, having completed the legislative business before them, are about to adjourn; and having acquainted the vice president that he had delivered the message, the senate adjourned without day. first congress.--third session. proceedings and debates in the house of representatives. monday, december , . on which day, being the day appointed by adjournment of the two houses for the meeting of the present session, the following members appeared and took their seats, to wit: _from new hampshire_--abiel foster, nicholas gilman, and samuel livermore. _from massachusetts_--fisher ames, benjamin goodhue, and george thatcher. _from connecticut_--benjamin huntington, roger sherman, and jonathan sturges. _from new york_--egbert benson, william floyd, john lawrence, and peter sylvester. _from new jersey_--elias boudinot, lambert cadwalader, and james schureman. _from pennsylvania_--george clymer, tho's fitzsimons, frederick augustus muhlenberg, peter muhlenberg, and henry wynkoop. _from maryland_--joshua seney. _from virginia_--john brown, samuel griffin, and james madison, junior. _from north carolina_--timothy bloodworth and hugh williamson. _from south carolina_--william smith. _from georgia_--abraham baldwin. which not forming a quorum of the whole number, the house adjourned until to-morrow. tuesday, december . daniel heister and thomas scott, from pennsylvania; richard bland lee, from virginia; and daniel huger, from south carolina, appeared and took their seats. william b. giles, from virginia, returned in the place of theodorick bland, deceased, also appeared, produced his credentials, and took his seat. wednesday, december . elbridge gerry and jonathan grout, from massachusetts; andrew moore and alexander white, from virginia; and thomas tudor tucker, from south carolina, appeared and took their seats. a message from the senate informed the house that they are ready to meet the members of this house in the senate chamber, to receive the usual communication from the president of the united states. mr. speaker, attended by the members of this house, then withdrew to the senate chamber, for the purpose expressed in the above message. and being returned, the speaker laid before the house a copy of the speech, delivered by the president (which will be found in the proceedings of the senate), which being read, it was, on motion, committed to the consideration of a committee of the whole house to-morrow. thursday, december . james jackson and george mathews, from georgia, appeared and took their seats. _address to the president._ on motion, the house resolved itself into a committee of the whole on the speech of the president of the united states, mr. livermore in the chair. on motion of mr. lawrence, the committee agreed to a resolution, which the committee rose and reported to the house, which was concurred with as follows: _resolved_, that it is the opinion of this committee, that an address ought to be presented by the house to the president of the united states, in answer to his speech to both houses, with assurances that this house will, without delay, proceed to take into consideration the various and important matters recommended to their attention. and messrs. madison, ames, and tucker, were appointed to prepare the address. friday, december . george partridge, from massachusetts; jonathan trumbull and jeremiah wadsworth, from connecticut; thomas sinnickson, from new jersey; and william smith, from maryland, appeared and took their seats. saturday, december . a translation of the letter from the president of the commonalty of paris, addressed to the federal legislature, was read as follows: _mr. president--gentlemen:_ the news has reached our ears--franklin is no more!--franklin, the citizen of the world!--all nations are indebted to him for instruction in every branch of science. they are all bound to participate in the grief occasioned by this common loss. but the assembly of the representatives of the commonalty of our capital, thinking it their duty, in addition to the general mourning, to pay to his memory a further tribute of honor, have ordered, by a public decree, that the virtues and talents of this great philosopher should be perpetuated to distant ages, in a public and solemn eulogy--the first of the kind ever bestowed by our nation on civic worth. by order of the assembly i transmit it to your hands; and, with the most lively sensations of pleasure, embrace the opportunity of paying due homage to a body of men, who not only possess, but are justly entitled to enjoy the sweets of liberty. may the approbation of your assembly attend, as well the present itself, as the fraternal and respectful sentiments with which i am, mr. president--gentlemen, your most obedient humble servant, beniere, _doctor of the sorbonne, suppletory member of the national assembly, and president of the commonalty of paris._ to the president and congress _of the united states_. the letter accompanied twenty-six copies of the eulogium on dr. franklin, delivered by the abbé fauchet, pursuant to a decree of that body. mr. boudinot proposed that thirteen copies of the eulogium be returned to the president of the united states and the senate; which was done. mr. smith (of south carolina) observed, that it would be proper to request the president of the united states to return an answer to the president of the commonalty of paris, or that a joint committee of the house and senate should be appointed for the purpose. he was not tenacious of any particular mode, but supposed it highly proper that some notice should be taken of the polite attention shown the government by the president of the commonalty of paris. the business was specially committed to the speaker. agreeably to the order of the day, the house resolved itself into a committee of the whole, to take into consideration the address to the president of the united states, in answer to his speech to both houses, as reported yesterday. mr. livermore in the chair. the address was read by the clerk, and then discussed by the committee in paragraphs. on reading the clause respecting the western expedition against the indians, mr. jackson rose and observed, that he was as fully impressed with the importance of an indian war, and of extending the protection of government to our defenceless frontiers, as any man whatever, and had no doubt of the necessity of the measures taken to chastise the banditti on the ohio; but as a representative from the state of georgia, he should think himself inexcusable were he not to express his astonishment that no notice is taken in the president's speech of the treaty with the creek nation; a treaty which has spread alarm among the people of that state--a treaty by which more than three millions of acres of land, the property of the state of georgia, guarantied to that state by the constitution of the united states, are ceded away without any compensation. mr. j. then adverted to several articles of the treaty, which he said controverted the plainest principles of the constitution, particularly those parts which secure to every citizen the rights of property. he contrasted the present situation of the inhabitants of georgia, with what it was under the british government, and said this treaty placed them in a less eligible situation in respect to the indians. it had been said, exclaimed he, that there are secret articles in the treaty. good god! at this early period are there to be secret articles existing between the united states and any other nation under heaven! treaties by the constitution are to be considered the supreme law of the land; but will congress permit the laws of the united states, like those of _caligula_, to be placed where they cannot be read, and then punish the people for not obeying them? the people will never submit to be bound by secret articles. [here the chairman interrupted mr. jackson, by inquiring whether his observations were intended as introductory to any motion on the paragraph just read.] mr. j. replied, that it was his intention, at a future day, to introduce a motion, that the president be requested to lay before this house the treaty with the creek indians--not excepting the secret articles. he then expatiated on the sufferings of the people of georgia, and asked, what must be their feelings when they reflect on the preparations made to chastise the wabash banditti, while the exertions of congress have not been called forth to their relief. the president sent three commissioners to georgia (not one of whom was a citizen of that state). they investigated the truth of her representations, and made a report favorable to her claims, that the lands in dispute were fairly purchased, and as fully obtained as the confederation, or the nature of the case would admit; but what has been the result? the treaty, so far from recognizing the rights of georgia, has sacrificed them--the report of the commissioners does not appear to have been attended to. on the other hand, a savage of the creeks has been invited and brought to the seat of government, and there loaded with favors, and caressed in the most extraordinary manner. he said, he would not at present engross any more of the time of the house, only to give notice that, at a future opportunity, he should move that the president of the united states be requested to lay before the house for their consideration, the treaty with the creek indians--not excepting the secret articles. the paragraph respecting encouraging our own navigation being read, mr. smith (of south carolina) observed, that he did not rise to propose any alterations in the style of the address; the language was such as might be expected from the acknowledged abilities of the gentleman who drafted it. the paragraph just read, he conceived, pledged the house to take measures in respect to our own navigation, which may, in the issue, prove injurious to the agricultural interests of the united states. at this early period of the session, it appeared extremely improper for the house to commit itself, especially as few, if any of the states, are fully represented on the floor. he was afraid that the mode of expression adopted in the address would conduce to the exclusion of foreign bottoms altogether. if the opinion of the committee should be adopted by the house, he conceived it would be anticipating a decision to the precluding future discussions of the subject. he foresaw that this paragraph would be called up at some future period, and brought as an argument against any different propositions that might be offered--and thus the question be determined without any debate. he thought the address went into too minute a consideration of the several parts of the speech, and could have wished that more general terms had been used. as a substitute for the paragraph under consideration, he moved the following amendment in substance: "we shall consider with attention the best means of guarding against the embarrassments you mention, and will take such measures as may remove every obstruction to the prosperity of the commerce and agriculture of the united states." mr. williamson observed, that he saw no material difference between the paragraph in the report and the amendment proposed. the mode of expression adopted by the committee is in so general terms, that he hoped it would have met the full approbation of every member of the committee. the president proposes that the commerce of the united states should be relieved from all injurious restrictions; nothing can be more just and reasonable: and this is perfectly compatible with supporting the agricultural interests of the country; the promotion of the former involves that of the latter. he touched on the impositions of great britain on our commerce, and observed, that reason and justice point out the propriety of seeking redress. he, however, saw no opposition in the two propositions; but as the obvious design in bringing forward the substitute is to preclude such an inquiry as the exigency of the case seems to require, he hoped it would not be adopted. mr. jackson observed that he had seconded the motion of the gentleman from south carolina, because he thought there was an obvious difference in the two modes of expression. he then entered into a discussion of the subject generally; and enlarged on the injurious consequences which would result to the southern states particularly by enhancing the duties on foreign bottoms. he said, that the tonnage was at present so high as to prevent foreigners from becoming our carriers; several instances of this had been mentioned to him from good authority; and while the american shipping was incompetent to the object, and he called on gentlemen to show that it was, the exclusion of foreign ships from our ports must be ruinous to south carolina and georgia; therefore, he hoped the amendment would take place. mr. sherman said, that the words in the report appeared to him less exceptionable than those in the proposed amendment, even on the principle supported by the gentleman in favor of the amendment. in the report it was only said, we should consider what means, &c., but the amendment declared we should take effectual measures. the words in the report only binding us to consider--those in the amendment obliging us to act. he thought the answer should be general, and was therefore against the amendment. mr. smith (of south carolina) observed, that the member last up had confined his observation to the first words in the paragraph objected to. if he will take the trouble of reading a little further, he will see, that as the report stands, we give it as our opinion, that foreign bottoms ought to be excluded, which would be severely felt by the states of south carolina and georgia. we cannot wholly depend upon our own vessels for the exportation of our produce; they are not sufficiently numerous, nor will they be for many years; therefore, let us not at this time, in a hasty manner, declare, that all articles exported shall be carried in our own bottoms. to settle this important question, mr. s. thought that some time should be given to reflect, and a day fixed for discussion; in the mean time, he thought it improper at this stage of the session, that the opinion of the house should be given. mr. williamson remarked, that the report did not say that we should have no dependence on foreign bottoms; but that we should not depend altogether upon them for the exportation of our produce. he had no idea of excluding foreign bottoms. he was for making provision in case that resource should fail. mr. jackson.--to show the importance of foreign shipping to the southern states, and the inadequacy of our own to transport their produce, notwithstanding the low duty on american shipping, mr. j. read a statement of the tonnage duties paid by each, in the state of georgia, for the same period; the foreign tonnage amounted to eight thousand two hundred and twenty-seven dollars, the american to six hundred and twenty-nine dollars only. this being the fact, he inquired, what could be done with the southern produce, in case of the exclusion of foreign bottoms? it must rot in the planter's hands. with respect to the amendment's being as positive as the clause in the report, as had been asserted, if this is the case he could see no objection to its being adopted. mr. tucker said, he thought it improper that in an address on this occasion, the committee should go into a particular detail on every subject; much less commit their judgment without a previous discussion. the president may have maturely considered the subject during the recess, but the committee cannot be supposed to be prepared for a decision. the thinness of the house was a further objection, in his opinion, to entering into a discussion of the question. he was not pleased with the paragraph in the report, as it seemed to imply that nothing had been done for the encouragement of our own navigation, the reverse of which was fact. the posture of affairs in europe suggested no stronger reasons for giving further encouragement to our own navigation than what was presented last session; the expediency of the measure is not therefore apparent from any change of circumstances. though he was dissatisfied with the report, the amendment proposed fell short of his wishes. it did not recognize what had been done for the encouragement of american shipping. he would, therefore, propose a substitute by leave of his colleague; which he did to the following purport: "the encouragement of our own navigation has at all times appeared to us highly important, and has employed a large share of our deliberations; we shall continue to pay due attention to the subject, and consider by what means our commerce and agriculture may be best promoted." mr. smith withdrew his motion to admit mr. tucker's. mr. seney said, he could not conceive what ground of apprehension there was in the address, to lead gentlemen to suppose that the opinion of the house would be committed by its adoption. he thought it couched in the most general and unexceptionable terms. the amendment proposed he did not think essentially variant from the paragraph under consideration; but as the original was well expressed, he saw no reason for expunging the clause; it contained an assertion, the truth of which he supposed would not be controverted. as to the objection against going into a detail of particulars, it was fully justified by precedent in the last address; the gentleman from south carolina, he will recollect, was on the committee who framed it; that address more pointedly committed the house than the present. mr. madison thought proper to take some notice of the objections that had been made to the report. there were two modes of proceeding, which might be adopted in drawing up the answer. the first method was generally to declare, that the house would take into their serious consideration the business recommended to their attention by the president. and this, he observed, would be saying nothing, for, as by the constitution it was the president's duty to communicate what matters he judged of importance, so it was undoubtedly that of the house to pay attention to the objects recommended. the second method was, to enter into a detail of the different points mentioned in the president's address, and in such cases where there was no doubt as to the propriety of measures being taken, assure him, in the answer, that measures would be adopted; and if any thing doubtful occurred, merely promise that the subject would be attended to. this rule the committee had followed in drawing up their report, and as in the business mentioned in the paragraph now before the house, they did not hesitate to believe some measures necessary, they could see no impropriety in assuring him that the best would be adopted. he added, that as it is clear that a war in europe would, by depriving us of foreign bottoms to export our produce, injure this country; and as wars were doubtful, it was of the utmost importance that the american navy be put on so respectable a footing as not to need foreign aid for the exportation of her produce. he further observed, that the answer returned last session was more full, and went even to give the president assurances that the house would concur in certain points proposed for their consideration in his address. he concluded by remarking, that the amendment proposed was binding on the house quite as much as the paragraph in the report. mr. smith (of south carolina) said, it was true those who reported the address the last session, adverted to particulars; but were cautious in their mode of expression, and adopted ambiguous language to avoid giving an opinion. this would appear by recurring to that address. the charge of inconsistency on his part was therefore not well founded. mr. s. read some paragraphs of that address, and observed that the house was not pledged by the expressions then read; but in the present address there is an opinion given. it says that we ought not to depend on foreign bottoms, because in case of war we may be deprived of that resource. these declarations originated the objections, and gave rise to the amendment. he proposed, therefore, as gentlemen appear to have no objection to either mode of expression, that they would accommodate for the sake of harmony and unanimity. the question on the amendment was lost by a considerable majority. the remainder of the address was read, and agreed to by the committee. the committee then rose and reported, and the house adopted it unanimously. a committee was then appointed to wait on the president of the united states, to know at what time and place it would be convenient for him to receive the address. the committee having waited on the president, mr. madison reported, that the president was pleased to return for answer, that, at two o'clock on monday next, he would receive the address at his own house. messrs. williamson and sherman were added to the committee on the bill to amend the act for promoting the progress of the useful arts. mr. mathews was appointed on the committee on the militia bill, _vice_ mr. jackson, who begged leave to decline serving, as his colleague had been heretofore on that business, and must consequently be better acquainted with the subject than he was. monday, december . george leonard from massachusetts; john vining, from delaware; josiah parker, from virginia; john baptist ashe, from north carolina; and edanus burke, from south carolina, appeared and took their seats. _eulogium on dr. franklin._ mr. smith (of south carolina) introduced the following motion, which was read, and laid on the table: the house being highly sensible of the polite attention of the commonalty of paris, in directing a eulogium to the illustrious memory of dr. benjamin franklin, pronounced before them, to be transmitted to the president and congress of the united states, _resolved_, that the speaker communicate the sense of this house in a letter addressed to the president and commonalty of paris. _address to the president._ at two o'clock, the house, preceded by the sergeant-at-arms, waited on the president of the united states, at his house where the speaker delivered the following address in answer to his speech to both houses: sir: the representatives of the people of the united states have taken into consideration your address to the two houses at the opening of the present session of congress. we share in the satisfaction inspired by the prospects which continue to be so auspicious to our public affairs. the blessings resulting from the smiles of heaven on our agriculture, the rise of public credit, with the further advantages promised to it, and the fertility of resources which are found so little burdensome to the community, fully authorize our mutual congratulations on the present occasion. nor can we learn, without an additional gratification, that the energy of the laws for providing adequate revenues have been so honorably seconded by those classes of citizens whose patriotism and probity were more immediately concerned. the success of the loan, opened in holland under the disadvantages of the present moment, is the more important, as it not only denotes the confidence already placed in the united states, but as the effects of a judicious application of that aid will still further illustrate the solidity of the foundation on which the public credit rests. the preparatory steps taken by the state of virginia, in concert with the district of kentucky, towards the erection of the latter into a distinct member of the union, exhibit a liberality mutually honorable to the parties. we shall bestow on this important subject the favorable consideration which it merits, and with the national policy which ought to govern our decision, shall not fail to mingle the affectionate sentiments which are awakened by those expressed in behalf of our fellow-citizens of kentucky. whilst we regret the necessity which has produced offensive hostilities against some of the indian tribes north-west of the ohio, we sympathize too much with our western brethren, not to behold with approbation the watchfulness and vigor which have been exerted by the executive authority for their protection; and which, we trust, will make the aggressors sensible that it is their interest to merit, by a peaceable behavior, the friendship and humanity which the united states are always ready to extend to them. the encouragement of our own navigation has at all times appeared to us highly important. the point of view under which you have recommended it to us is strongly enforced by the actual state of things in europe. it will be incumbent on us to consider in what mode our commerce and agriculture can be best relieved from an injurious dependence on the navigation of other nations, which the frequency of their wars renders a too precarious resource for conveying the productions of our own country to market. the present state of our trade in the mediterranean seems not less to demand, and will accordingly receive, the attention which you have recommended. having already concurred in establishing a judiciary system, which opens the doors of justice to all without distinction of persons, it will be our disposition to incorporate every improvement which experience may suggest; and we shall consider, in particular, how far the uniformity which in other cases is found convenient in the administration of the general government through all the states may be introduced into the forms and rules of executing sentences issuing from the federal courts. the proper regulation of the jurisdiction and functions which may be exercised by consuls of the united states in foreign countries, with the provisions stipulated to those of his most christian majesty established here, are subjects of too much consequence to the public interest and honor not to partake of our deliberations. we shall renew our attention to the establishment of the militia and other subjects unfinished at the last session, and shall proceed in them with all the despatch which the magnitude of all, and the difficulty of some of them, will allow. nothing has given us more satisfaction than to find that the revenues heretofore established have proved adequate to the purposes to which they were allotted. in extending the provision to the residuary objects, it will be equally our care to secure sufficiency and punctuality in the payments due from the treasury of the united states. we shall also never lose sight of the policy of diminishing the public debt, as fast as the increase of the public resources will permit; and are particularly sensible of the many considerations which press a resort to the auxiliary resources furnished by the public lands. in pursuing every branch of the weighty business of the present session, it will be our constant study to direct our deliberations to the public welfare. whatever our success may be, we can at least answer for the fervent love of our country, which ought to animate our endeavors. in your co-operation, we are sure of a resource which fortifies our hopes that the fruits of the established government will justify the confidence which has been placed in it, and recommend it more and more to the affection and attachment of our fellow-citizens. to the foregoing address the president was pleased to reply: gentlemen: the sentiments expressed in your address are entitled to my particular acknowledgment. having no object but the good of our country, this testimony of approbation and confidence, from its immediate representatives, must be among my best rewards, as the support of your enlightened patriotism has been among my greatest encouragements. being persuaded that you will continue to be actuated by the same auspicious principle, i look forward to the happiest consequences from your deliberations during the present session. geo. washington. tuesday, december . jeremiah van rensselaer, from new york, and thomas hartley, from pennsylvania, appeared and took their seats. friday, december . john hathorn, from new york, and john sevier, from north carolina, appeared and took their seats. benjamin bourne, a member returned from rhode island, produced his credentials, and took his seat. monday, december . _public lands._ the house then went into committee of the whole on the state of the union, mr. livermore in the chair. the report of the secretary of the treasury on the establishment of land offices for the disposal of the vacant lands belonging to the united states was taken up; when mr. boudinot offered the following resolution: _resolved_, that it is the sense of the committee that a land office be established at the seat of the general government, under the direction of ---- commissioners. mr. scott wished the house to take a general view of the business before they went into the particulars of the secretary's report. upon the whole, he was pleased with the plan drawn up by that officer; one part, however, he objected to--that part of the report which provided for the distribution of the land. he did not approve of setting apart tracts for particular descriptions of purchasers. as an amendment, he offered seven propositions, which he wished, for the present, to lie on the table, and which he proposed to offer as substitutes to different parts of the secretary's report, as they came before the house. his principal object was to let the tracts which congress proposed to sell be indiscriminately located. mr. boudinot thought the committee could not then enter into the minutiæ of the business. it was enough to fix the general principles, viz: whether there shall be a general land officer and two subordinates? whether they shall be under the direction of commissioners? and whether certain tracts of land should be reserved by congress for certain purposes? and then to appoint a committee to bring in a bill on those principles, and to take into consideration the minutiæ of the business. mr. scott moved as a substitute his second proposition, that such districts as shall be set apart for sale, shall include the actual settlements, and be left to be indiscriminately located. he said it was improper to set aside different tracts for different modes of location--some in large tracts, others in small lots. he conceived it would be the interest of government to let every one purchase where he pleased, and as much or as little as he chose. from experience, he knew that those parts were always settled with the most celerity that were not bound down to any of those restrictions. for his part, he could see no good argument in favor of them. he wished some of the gentlemen who approved of this mode would give him some reasons for preferring it. there could be no fear of individual settlers scattering and losing themselves in the backwoods; there was a sufficient check to prevent it--the indians would keep them compact much more effectually than any regulations congress could make. if, after granting certain scattered tracts to individual settlers, a considerable tract, including these, was wanted, he could see no inconvenience in granting it, reserving to the former settlers their rights. mr. williamson rose to give the gentleman last up one reason for opposing indiscriminate location. hitherto, he owned, much mischief had not arisen from this mode of settlement; but now there were persons rich in securities and cash, ready to take up considerable quantities of land, which, if they were permitted to select here and there, would select every choice tract they could; and those who might not have the same means of purchasing immediately at command, could only obtain the indifferent parcels. many, he knew, had it in contemplation to do this, if the opportunity offered. he instanced north carolina as an example of the injurious tendency of this liberty; where many tracts are unsaleable owing to this circumstance. if these tracts were to be purchased by actual settlers, the case would be different; they would only be taken up by persons under the name of actual settlers. such a practice would be an impediment to such companies of europeans as might wish to settle among us. mr. scott said he expected the gentleman would have offered more solid objections to his plan, and more forcible arguments in favor of the other. though the first settlers had the choice of the land, yet he conceived the remaining part would acquire a considerable additional value from the surrounding settlements. as for the european companies who might be tempted to settle among us, he did not contemplate it as an object so desirable. a body of french people settling in that way would preserve their language and manners two thousand years perhaps. this would not be for the true interest of the country; all its inhabitants should, by mutual intercourse, become assimilated, and no name be known but that of americans. mr. boudinot was against indiscriminate location. he had seen the bad effects of it in the state from which he came. persons had bought up the low lands, and sold them again to such as absolutely needed a water lot to their farms, at enormous prices. he mentioned another objection to the plan--the tendency it had to create lawsuits. he said more money had been spent at law, in disputes arising from that mode of settlement, in new jersey, than would have been necessary to purchase all the land of the state. the late congress, he was informed, had adopted a method to obviate the inconveniences of the former mode--the lands were laid out into a mile square; these were divided into four equal squares, and in that form sold. mr. scott said there were tracts of land which it is impossible to sell, even by offering good parcels with them. between philadelphia and his home there were spots which were only intended by nature for the birds and beasts--that could be of no value for cultivation. he could not see much probability that the best land would be picked out. the difficulty of exploring a wild and uncultivated desert opposed a considerable barrier to such attempts. mr. scott's amendment was lost. tuesday, december . _land offices._ the house then went again into a committee of the whole on the state of the union, mr. boudinot in the chair. the report of the secretary of the treasury on the subject of a land office being under consideration. mr. scott said, he was ready to give some information relative to the extent of the seven ranges. he produced a map of them, from which it appeared that they included thirty-five lots, each six miles square. the tract is in the shape of a triangle, of which one leg measured about sixty, and the other forty-two--in all, about twelve hundred square miles. his amendment was agreed to. the next article was agreed to, with a trifling amendment, without debate. then the following was read: "that the price shall be thirty cents per acre, to be paid either in gold or silver, or public securities, computing those which shall bear an immediate interest of six per cent. as at par with gold and silver, and those which shall bear a future or less interest, if any there be, at a proportional value." mr. scott moved that thirty cents should be struck out. mr. sherman was in favor of inserting fifty cents per acre. he said there was every reasonable probability the lands would be worth that sum in a few years. mr. lawrence said, that as the quality of the land would vary, it appeared proper to fix on two prices at which they should be sold, viz: that the price shall not be more than ----, nor less than ----. he submitted the idea to the consideration of the committee. mr. sedgwick preferred the insertion of a sum below which the lands should not be sold. mr. williamson suggested the propriety of making a difference in the price to those who purchase large quantities, from the price to those who purchase small quantities. the motion for striking out was lost. mr. sedgwick then moved to amend the clause, by inserting "that the price per acre shall not be less than thirty cents." mr. stone objected to the motion. he said the operation of it would be to leave it discretionary with the surveyors to fix the price of the various tracts. this would be to constitute a tribunal in a measure independent of the government. he thought the policy of the government should be to fix on a price, which shall be so reasonable, that persons may feel every inducement to pay it before they take up the lands; for it has been found by experience, that when once a tract of distant country is taken possession of, you never can get any thing more than the settlers are willing to pay. he insisted that it was impracticable to fix the relative value of unlocated lands--it had been repeatedly tried without effect. he asked if any of the states had ever established various rates for their lands? he knew of none. mr. sedgwick answered the inquiry respecting the relative value of lands being ascertained in the several states. he said, that so far as his information extended, which respected only the states of new york, new hampshire, and massachusetts, this had invariably been the case. every man knows there is a most essential difference in the value of lands. those on navigable rivers may be ten times as valuable as those on the top of a mountain. this every individual is so sensible of, that a difference in the price is constantly made; and why the government should not make a difference, it is impossible to say. any man, by casting his eye upon the map, can at once determine that some part of the land is unspeakably more valuable than other parts. he was certain that vesting a discretionary power, in the disposal of the lands, would be productive of the greatest advantage to the united states, and on this principle he could not conceive why the surveyors should not determine the relative quality, that the united states may stand some chance of getting the value of this property. mr. livermore was in favor of mr. sedgwick's motion, and enlarged on the unreasonableness of fixing a particular price. mr. jackson was opposed to investing a discretionary power to determine the price with any persons whatsoever. it had been productive of mischievous consequences in the state of georgia. he was for fixing a price, and the highest price--the best the land would bear; when that is sold, if the revenue will not bear the price established, it can then be reduced. mr. scott objected to the motion. he stated several difficulties; the principal was, that foreigners would be deterred from adventuring, owing to the uncertainty in the price; for when they arrive in the country to settle, they must purchase, and they will then lie at the mercy of speculators. mr. lawrence.--the people have great dependence on the western territory as a fund to extinguish their debt; it therefore becomes the duty of the government to obtain the best price they can for it. the question is, whether we shall fix a price, or adopt the plan proposed by the gentleman from massachusetts. he was in favor of the latter, and said he doubted not it would be easy to make a discrimination in the relative qualities of the lands. this difference in price may render it worth while for the commissioners to have the land of a particular district explored. he replied to the objection from the want of integrity in the surveyors. admitting the full force of the objection, it was probable that the united states would gain by it; at any rate, it would not lose; and it was probable that, to avoid suspicion, if the surveyors should be interested in the tract surveyed, they would give more than thirty cents. with respect to foreigners, after they arrive in this country, they then will be on the same footing with our own citizens. he adverted to the mode which had been adopted by new york--they had sold lands in every way, at a certain price, at auction, and are now selling them at the discretion of commissioners, at a rate not below a certain sum. mr. stone objected to the mode of leaving the price unfixed, as it would involve a complex system, subjecting the purchasers to great inconvenience, perplexity, and uncertainty. he reprobated the system adopted by new york, and asked the gentleman (mr. lawrence) whether new york had not been subjected to great loss and vexation in consequence of the plan they had pursued? he wished the system of new york should be fully understood, in order that the united states may avoid it. he concluded by saying, that he was in favor of fixing a price, and supposed that the western territory, sold at thirty cents per acre, would sink the whole of the national debt. mr. lawrence replied to mr. stone. he said, that when the state of new york sold their lands at a fixed price, there had been complaints on account of the best tracts being taken up. when they had sold them at auction, the value of the lands had been generally realized in proportion to the quality. with respect to the last mode adopted, the result was not yet known. mr. white said, if gentlemen had proposed the amendment to the clause which respects large purchases, he should not have objected to it. he, however, objected to it in the present case, and, in order to show that a fixed price was most eligible for small quantities, he instanced the practice of lord fairfax, who had been a great proprietor in virginia; and also the practice of the first proprietors of pennsylvania. these sold their lands, good and bad, at one price; their experience for such a length of time, near a century, he thought sufficient to show that mode to be the most eligible. he would not object to fixing that condition to special contract. mr. sedgwick obviated the objection in the first instance, by saying that the officers will be able to determine, with very considerable precision, what will be for the interest of the united states. he said experience had proved that there were no insuperable difficulties in the case. mr. moore observed, that the actual value of the best lands in that territory was about thirty cents per acre. when all of that description is sold, the next will bring the same price; from whence he inferred, that there could be no difficulty or loss attending fixing the price. he stated some difficulties which would result from adopting the mode proposed. wednesday, january . _duties on spirits._ the house, agreeably to the order of the day, resolved itself into a committee of the whole, mr. boudinot in the chair, and took into consideration the bill repealing, after a certain time, the act laying duties on distilled spirits, &c., and imposing others in their stead. mr. jackson moved to strike out the essential part of the first clause. he stated his objections at large against the principles of the bill, and reprobated the funding system, and an excise in particular, as an auxiliary to it. the tenor of his observations was to show that this mode of taxation was odious, unequal, unpopular, and oppressive, more particularly in the southern states; in which he observed its unequal operation would be most sensibly felt, as the citizens of those states have no alternative to adopt by which they can diminish the weight of the tax; no breweries or orchards to furnish a substitute for spirituous liquors; hence they become a necessary article. he contended that they were not only necessary, but salutary in the southern regions. this, he said, had been acknowledged by an eastern author, _mr. morse_, an authority which he presumed would not be disputed by the northern gentlemen, especially when it was considered he was a clergyman. mr. m. declares that grog is a necessary article of drink in the southern states. mr. j. took notice of the petition of the college of physicians, which had lately been read in the house on the subject of distilled spirits. he disapproved highly of their interfering in the business. he thought they might with equal propriety interpose their offices to prevent the use of many other articles which were deemed pernicious or of a poisonous quality. he instanced mushrooms; they might petition congress to pass a law interdicting the use of catsup, because some ignorant persons had been poisoned by eating mushrooms. mr. j. then gave a short sketch of the history of excises in england. he said they always had been considered by the people of that country as an odious tax, from the time of _oliver cromwell_ to the present day; even _blackstone_, a high prerogative lawyer, has reprobated them. he said, he hoped this country would take warning by the experience of the people of great britain, and not sacrifice their liberties by wantonly contracting debts which would render it necessary to burden the people by such taxes as would swallow up their privileges. we are, said he, too much in the habit of imitating that country; and i plainly perceive that the time will come when a shirt shall not be washed without an excise. he then expatiated on the unequal operation of excises, and instanced the experience of this state. a few counties, said he, approximate to the capital, have borne the weight of the whole, while the distant parts of the state did not feel the burden; and, by an indication of several particulars, he showed its unequal operation in the southern states. it will deprive the mass of the people of almost the only luxury they enjoy, that of distilled spirits. he did not see the necessity of passing this law the present session. the amount of the produce of the duties laid last session is not yet known, nor is it yet ascertained whether the citizens will subscribe to the assumption. let us not lay a tax for a purpose which may never exist; for my part, i hope they never will subscribe. he then adverted to the excess of duties already laid, and the probability of a great increase of that excess; and urged the propriety of waiting at least another quarter to see what that excess may amount to. these observations he enforced by recurring to the recent transactions of the states of maryland, virginia, and north carolina; and he expected to hear very shortly that the assembly of georgia had expressed similar opinions with the latter states on the business of the assumption. he concluded by expressing a general disapprobation of the various parts of the bill. mr. parker said, he had seconded the motion of the gentleman from georgia, not because he was more averse to this particular clause than to the subsequent parts of the bill. he exceedingly disliked the several provisions contained in it. he then adverted to the general process of the revenue business the last session; and observing on the conduct of the mercantile interest, to which so much credit had been given, said, he thought they were not entitled to the liberal encomiums which had been bestowed on them for their promptitude in paying the duties, as the certainty and increase of the revenue had served to enhance the value of the public securities, of which it is well known they hold a very considerable portion. he then touched on the subsequent parts of the bill, which he reprobated as hostile to the liberties of the people, as contrary to the general sentiment; not only as partial and unequal in the mode of assessment, but particularly on account of the mode of collecting the tax. it will, said he, convulse the government; it will let loose a swarm of harpies, who, under the denomination of revenue officers, will range through the country, prying into every man's house and affairs, and like a macedonian phalanx bear down all before them. and though the government has proceeded with a degree of prosperity and success beyond the most sanguine expectations, yet he very much doubted the policy of trying its strength by an experiment of this nature. recurring to the actual and probable produce of the duties already laid, he attempted to show that the additional sum of upwards of eight hundred thousand dollars, contemplated to be raised by this bill, is not necessary. he controverted the policy of the measure, and contended that it would, in all probability, rather diminish than increase the revenue of the united states. for the mercantile part of the community, who have been applauded for acting so honorably in making their entries, and paying the impost, will find it for their interest to alter their conduct; they will combine to defeat the excise, which will in its operations bear so unequally on them. he objected very particularly to the bill on account of its tendency to promote smuggling. mr. p. said, no man was more heartily disposed than he was to give his approbation to every just measure for supporting the public credit, and doing every thing in his power to support the constitutional operations of the government; but this mode of raising a revenue he considered as particularly odious to the people; and at the present moment he was not satisfied that such an increase to the public burdens is necessary. mr. stone said, he had no objection to the design of the bill so far as additional revenue was necessary; but the mode of raising it by excise he exceedingly disliked. he had no doubt that other means might be devised; but at present he thought the committee was not sufficiently informed respecting the actual and probable amount of the revenue from the duties already imposed, to determine the necessity of an addition to the revenue. he therefore moved that the committee should rise without any further discussion of the bill at this time, and that a select committee should be appointed to make the necessary previous inquiries upon the subject, and report to the house. mr. fitzsimons observed that there was already on the table a statement from the proper officers of the product of the revenue, from september, , to september, . this statement was read. the motion for the committee's rising was put and lost. the question on mr. jackson's motion for striking out the clause was put, and negatived by a great majority. thursday, january . _duties on spirits._ the house again resolved itself into a committee of the whole on the bill repealing after the last day of ---- next, the act laying duties on distilled spirits, &c., and imposing others in their stead. mr. boudinot in the chair. the twelfth section, which specifies the rates of duties, being read, mr. parker moved that it should be struck out, in order to admit a substitute which should provide for a different mode of raising the requisite additional revenue; the proposition he had in view, he said, was a duty on molasses. this, he observed, would answer every purpose, without being liable to the objections which had been offered against the plan of the bill. mr. madison observed, that he had felt the force of the objections which had been urged against the bill. he was in general principled against excises, but of all excises, that on ardent spirits he considered the least exceptionable. the question now to be determined, he conceived, was this--is an addition to the present amount of the revenue necessary? it had appeared that an addition is necessary; for his own part, he should prefer direct taxation to any excises whatever; but he conceived this would be contrary to the sentiments of a majority of the people of the united states; and he was fully convinced that it was contrary to the opinion of a great majority of the house. if, said he, any mode could be adopted, without having recourse to excises, he would be the last that would give them support; but he conceived there was none, and the plan proposed was divested of the most exceptionable provisions usually connected with an excise system. mr. jackson observed, that his defeat yesterday should not deter him, while he had a monitor within, from rising in his place to do his duty, in opposition to a system unfriendly to the liberties of the people. he said, he was not the first on this floor who had been outvoted by silent majorities; gentlemen of superior abilities had met with similar treatment. he, however, felt so much respect for himself as to suppose that this silence proceeded from an inability to answer the arguments which he had the honor to offer against what he considered a most ruinous and mischievous system of taxation. he then stated certain particulars respecting the produce of the revenue, to show that so great a sum as is proposed to be raised by excise is unnecessary. he doubted not other resources of revenue might be explored which would be more palatable; he instanced a tax on salaries, pensions, and lawyers, and in these particulars, he wished that the example of great britain might be followed. he then dilated on the practice of smuggling, which he contended would be promoted by this bill; also the difficulties and opposition which were justly to be expected, by which the dignity of the government would be insulted. can this government, said he, protect its officers from the resentment of any one state in the union? he reprobated the idea of placing the government in such a situation. mr. lawrence observed, that he doubted not every gentleman's mind was open to conviction, and he hoped and expected that every question would be treated dispassionately. he did not rise yesterday to answer the gentleman, because he was not impressed with the force of his arguments in the manner the gentleman supposed the house was. he then adverted to the act of the last session, by which the debts of the particular states were assumed. having taken this debt upon ourselves, the consequence is obvious, nor can we ever get over the dishonor of not making the necessary provision for paying it. he then adverted to the statements which had been submitted to the house by the officer to whom the union had intrusted the direction of its finances. from these it fully appeared that a much greater deficiency in the revenue existed than some gentlemen appeared willing to allow. if this deficiency exists, and if the united states are bound to make provision for the debts they have assumed to pay, the duties contemplated by the bill appear the most obvious for the government to recur to. he adverted to the idea of direct taxation, and inquired, on what principle will gentlemen consent to this mode of raising the necessary supplies? will they make the representation of the several states the rule by which it shall be apportioned? he doubted whether direct taxes on this principle would be agreeable, even to the gentlemen who have mentioned them. he then remarked on the objections to an excise, on account of the mode of collection. he said a rigorous collection would bear hard only on the dishonest, while it would protect the fair trader from bearing an undue proportion of the public burdens. he observed on the uneasiness which is said to prevail in some of the states; and to obviate the force of these reflections he instanced the harmony and peace that prevailed in those states which bear a much greater proportion of the public burdens than those which complain, as was abundantly evident from the documents in possession of the house. mr. steele stated his objections at large to an excise; he adverted to the particular situation of affairs in some of the southern states, especially north carolina. the assembly of that state had rejected the proposal of taking an oath to support the constitution of the united states, with scorn; they had also refused to admit continental prisoners into their jails; and another circumstance more hostile to the general government than either of the foregoing had taken place, which he forbore to mention. he said such was the present state of the public mind, in various parts of the union, that he should dread taking any measures which might serve to increase the fermentation which the people are in. an excise he considered of this nature; it would in its operations produce the worst consequences. a more exceptionable mode of taxation he conceived could not be devised. a direct or poll tax, he supposed, would not be so odious; and though, for his own part, he should prefer an excise to either of the former taxes, yet such was the aversion of the people to it, that he should prefer almost any other alternative. he thought other objects might be found from which the necessary revenue could be raised. he instanced duties on inland navigation, law proceedings, legal conveyances, &c. he then adverted to the operation of an excise, especially in the state of north carolina, and said that the consumption of ardent spirits in that state was so great that the duty would amount perhaps to ten times as much as in the state of connecticut. on the whole, he hoped, if the section is not struck out, that the excise will be reduced. mr. sherman observed, that the subject now before the committee was thoroughly discussed the last session; and as nothing new or of weight or importance had been offered the present session against it, he thought it would be a useless waste of the time of the house to go into a particular reply to the objections offered against the bill. this he thought a sufficient answer to the charge of carrying questions by silent majorities. he then entered into a short consideration of the subject generally, and defended the system from the charges which had been adduced respecting its unequal operation. mr. livermore was in favor of the bill. he said he considered it as an equal and just mode of taxation; and, as such, will be agreeable to the people--they will consider it as drinking down the national debt. so far, said he, as my observations have extended, i have not found a single individual who has objected to it. he then obviated the objections to the bill, which he conceived arose principally from the word excise. he thought the term very improperly applied on the present occasion, for the duty cannot be said to be an excise. he then gave a description of what had been considered in times past as an excise, which, to be sure, is a very unequal tax, inasmuch as it fell on the poor only, who were obliged to purchase in small quantities; while the rich, by storing their cellars, escaped the duty. but this bill provides that the duty shall fall equally on the rich and poor. it is to be paid, or secured, by the importer of foreign spirits, and on the still-head on domestic spirits. this will equalize the burden, and leave no room for complaint. he then adverted to direct taxation; and by a variety of particulars, showed that it was utterly impossible to lay a direct tax that would not prove unjust, unequal, and grievously oppressive. mr. bloodworth spoke against the bill. he dilated largely on the present uneasiness which prevailed in the state of north carolina. his experience, he said, was directly contrary to that of the gentleman from new hampshire; the people to the southward universally condemned an excise. mr. sedgwick said, he was unhappy to hear that discontents prevailed in any part of the united states. he could assure gentlemen that he did not contemplate the execution of the laws by military force. he was sure that in no part of the legislature were entertained designs inimical to the public liberty. in framing the present bill, great attention had been paid to prevent its being attended with those qualities which, in other countries, rendered taxation by excise justly obnoxious to popular resentment. he relied on the good sense and well-informed understandings of the people in every part of america, for the execution of such systems for the support of public credit, and for the diminution of the national debt, as should be devised by the wisdom of their representatives. for the same purposes, he said, he confided in the patriotism of the gentlemen who came from those districts of country where uneasiness was said to exist. he believed there was indeed considerable deficiency to be provided for, for the support of government and of the public credit. this belief was founded in his confidence in the information received from the secretary of the treasury. but if there was no deficiency, his disposition to support the bill would be the same; for he had never believed that a public debt was a public benefit. is it not, then, the duty of those to whom the people have delegated the important trust of guarding their prosperity, in a season of profound peace, to liberate them from the burden and pressure of debt? therefore the only question to be determined is, whether the proposed duties are a proper source from whence we might derive the necessary aids to provide for the payment of the interest, or the diminution of the principal of our debt? he believed that of all the subjects of revenue which were within the power of congress, none was so proper as the duty on ardent spirits, contemplated by the bill. in this sentiment, he believed he concurred with that of the great body of the people. the several species of taxation may be divided into the four following: by impost; a tax on internal negotiations; direct taxes; and that now under consideration, excise. the impost duties had been extended as far as was, in the opinion of any gentleman, dictated by sound policy. the tax on internal negotiations, which could not be carried on to any considerable extent without the intervention of stamps, was subject to the objection brought against the present bill, and that in a degree incomparably beyond it, of being opposed by public opinion. direct taxes are still more objectionable on that account, at least in every part of the country to which his knowledge extended. they are of all taxes the most unequal, and in this country would be found the most oppressive. they are unequal, because with whatever exactness they might be apportioned upon capital or income, the only two principles on which an apportionment can be made, they may, and will be, very unequal as to the burden imposed; because a man's ability to pay taxes is not in proportion either to his capital, his property, or his income, but to that part of his income which is over and above his necessary expenses, according to the usual manner of living for persons of his degree in the community. they will be oppressive in this country, because in many of the states the plentiful circulation of money, and the facility of obtaining it, does not extend to the interior parts, nor could it be obtained by many of our citizens without a great sacrifice of property. it may be added, that from the extent of our settlements compared with the number of our citizens, the expense of collection would be immense. in regard to excises, mr. s. said, that in all insensible modes of taxation, it should be observed, that a much greater sum would be obtained from an individual than by any mode of direct imposition: this, without entering into a discussion of the reasons upon which it was founded, is demonstrated by fact. he instanced the porters of london, from whom, in the single article of beer, was drawn ten times as much as could be procured by the most rigorous mode of direct taxation. with regard to the proposed duties, though the well-meant consideration of morality which had been urged by some gentlemen weighed but little with him, because he doubted whether it was well founded, yet, if the consumption should be lessened, he did not believe it would be attended with any sensible inconvenience. the consumption, at present, amounts to an enormous quantity; from these considerations, as the measure is dictated by sound policy, he hoped and believed it would be supported by a good degree of unanimity. mr. smith (of south carolina) adverted to the funding system, to show that the faith of the united states was pledged to raise a sufficient revenue to discharge the debt, which, by that system, they have engaged to pay. the secretary's statements point out a deficiency; those statements, he had no doubt, were as accurate as the nature of things would admit. gentlemen who find fault with the proposed plan do not offer a substitute. he then entered into a defence of the bill, and showed in what respects it differed from the english plan of an excise. he said, the present bill was not so exceptionable on account of its violating private property as the collection law. he instanced, in a particular clause of that law, the power of entering houses by warrant from a justice of the peace--trial by jury is secured by this bill, and other provisions friendly to personal rights are added. direct taxes are as much objected to by north carolina as the excise; and though direct taxes are mentioned, no plan is offered. he then enlarged on the importance of punctuality in paying the interest of the public debt, and of having a surplus revenue in the treasury. he doubted not the gentlemen in favor of the bill were as patriotic as those who are averse to it. difference of opinion is to be expected; but he had a better opinion of the good sense of the community than to suppose they would be led away by a sound; they will see and judge for themselves; and when they see that the law is free from all those obnoxious qualities which have been suggested, they will submit to it without complaint, especially when they realize that the tax is equal, and the only effective resource within the present command of the government. the general government is authorized to lay excises--north carolina knew this when she adopted the constitution. the opposition, he suspected, was against the object to which the money is to be appropriated. mr. giles said, the sentiments of the people of the southern states have been so differently represented from what he conceived to be the state of facts, that, in justice to them he conceived himself bound to take some notice of the observations which had fallen from gentlemen. he then stated certain principles on which taxation should be formed. taxes should be necessary, and raised on a plan consistent with the principles of liberty. he adverted to the necessity, which, he observed, was abundantly apparent from the report of the secretary of the treasury; but he did not confine his opinion to what had fallen from him. he instanced other reasons which would occasion a necessity for replenishing the public treasury. the expediency of the present mode he argued from the impost's being carried to the utmost; from the approbation of this mode by a majority of the people; and though uneasiness might prevail in some of the southern states, he considered them as originating altogether from want of due information. possessed of that information, he could pledge himself to the committee that they would cheerfully acquiesce in whatever the legislature should decide to be for the general interest. with respect to the bill's being agreeable to the principles of liberty and republicanism, this would more properly come into view when that part of the bill which designates the mode of collection comes under consideration. at present he would only say, that he had observed with pleasure, that there appeared to be a universal disposition in the members of the house to manifest the most scrupulous attention, in all their deliberations, to the liberties of the people. on the whole, he had no doubt that, on mature reflection, the people would acquiesce in the present plan, when the honor, security, and peace of the united states appeared to be essentially connected with a further provision for the public exigencies. mr. stone particularly alluded to the statement offered by mr. jackson, by which it appears that only the sum of , dollars was wanting--whereas the secretary's report calls for the enormous sum of , dollars. he called on gentlemen to show the errors of the statement offered by the gentleman. it had not been done. he then adverted to the number of people that would probably be wanted in order to make the duty productive. he believed they would be so numerous as to be sufficient to constitute an army. mr. fitzsimons read an estimate of the actual and probable produce of the present impost and tonnage for the current year, by which it appears there will be a deficiency of upwards of , dollars; but taking into consideration certain contingencies, which, should they take place, will diminish the amount of the present duties, it appeared that the deficiency would be much larger than the sum mentioned; but even in case of a surplus being produced by this bill, there are objects to which it can be applied highly beneficial to the united states. he instanced sinking the deferred stock, and the three per cents. the reduction of the public debt is an object which ought never to be lost sight of. monday, january . _vacancy in the presidency._ in committee of the whole on the bill, declaring what officer, in case of vacancy [by death, removal, or inability] in the offices of president and vice president, shall act as president, mr. boudinot in the chair. the first clause of the bill was read, which contains a blank to be filled up, designating the person who shall act as president. mr. smith (of south carolina) observed that, by the constitution, the vacancy is to be filled with an officer of the united states. this narrows the discussion very much. but he conceived there was a previous question necessary to be determined; and that was, whether the person appointed to supply the vacancy should hold the office during the time for which the president and vice president were elected, or whether he was to hold the office only till a new election could take place. he thought that, by the constitution, a new election was not to take place till the term for which the president and vice president had been elected was expired. he then descanted on the respective offices of the chief justice, secretary of state, and secretary of the treasury; and, by several particulars, showed that the appointment would most naturally devolve on the secretary of state. he accordingly moved that the blank be filled with the words "the secretary of state." mr. livermore observed, that in considering this question, he thought no reference should be had to the officers which had been mentioned, for, as it was supposed that the case contemplated would not happen once in a hundred years, he conceived that the present characters, who now hold the above offices, would be entirely out of the question. he had in view a different person, and that was the president of the senate, _pro tempore_, and moved that the blank be filled with this person. mr. white observed, that the constitution says the vacancy shall be filled by an officer of the united states. the president, _pro tempore_, of the senate, is not an officer of the united states. besides, this will give one branch of the legislature the power of electing a president. this, he conceived, was contrary to the constitution, as both branches have a right to an equal voice in the appointment in this case. this will introduce the very evil intended to be guarded against. mr. williamson said, the motion was directly repugnant to the constitution. why not choose the speaker of this house? mr. livermore said, he was well aware of the objections offered by the gentlemen. he could have wished the constitution had pointed out the person. but he conceived that the senate was the only body that could do this business. if either of the officers mentioned should be the person designated to supply the vacancy, it would be in the power of the vice president, by virtue of the power of removing officers, absolutely to appoint a successor, without consulting either branch of the legislature. mr. sherman observed that this matter is left with the legislature. the whole power of the people, in case of vacancy, devolves on the legislature. the particular officer is not pointed out; it lies with congress to say who it shall be. the president of the senate is an officer of the united states. in case of the death of a governor and lieutenant governor, it is common in the several states, for the oldest councillor to preside. he instanced the case of the abdication of james ii. adverting to the constitution, he showed that the appointment of vice president, in certain cases, devolves on the senate. the vacancy may be filled for a longer or shorter time, and this appears to be a question previous in its nature to be determined. mr. sedgwick said he should be in favor of the motion of the gentleman from new hampshire, if it was not for the express provision in the constitution, which says, the office shall be filled by an officer of the united states. should the vacancy now happen, there would be no officer of the senate that could be appointed. he mentioned that the office of chief justice was considered as next to that of president, and therefore on the whole, he considered him as the most proper person to fill the vacancy. he thought the bill respecting the votes for president and vice president should be first determined. he moved, therefore, that the committee should rise, and take up the next bill. mr. carroll and mr. livermore objected to the motion for the committee's rising. mr. madison was also opposed to the motion. he enlarged on the subject, and said he thought it a duty urged by a variety of considerations, important in themselves, and more so, perhaps, in their consequences, that the decision should now be made. mr. smith started a variety of objections to mr. livermore's proposition. he thought it unconstitutional, as it would, in its operation, deprive a state of a vote in the senate. mr. bourne said he seconded the motion for the committee's rising, because he conceived there was other business of more immediate importance to be considered; and he saw no necessity for coming to a decision on this question at the present time. mr. lawrence supposed that the blank could be filled up in the house; he was, therefore, in favor of the committee's rising. the motion for the committee's rising was negatived. mr. benson was in favor of filling up the blank with the chief justice. he observed that the objection arising from the vice president's having it in his power to name his successor, in case the secretary of state is inserted, does not apply to the chief justice. he is independent of the executive. he pointed out several particulars, in which there was an incompatibility in the offices of secretary of state, and that of president. he observed that the appointment to the regency, in all countries, is generally of the first law officer. mr. jackson objected to the chief justice, and said the speaker of the house of representatives was, in his opinion, the next officer in point of dignity to the president and vice president. mr. madison objected to the chief justice, as it would be blending the judiciary and the executive. he objected to the president _pro tem._ of the senate. he will be a senator of some particular state, liable to be instructed by the state, and will still hold his office--thus he will hold two offices at once. he adverted to the other objections which had been offered against the secretary of the state, and showed the compatibility of the two offices. mr. stone stated sundry difficulties respecting all the officers that had been named; but, on the whole, thought there were fewer against the secretary of state than any other officer that had been mentioned. mr. seney was opposed to coming to any decision at the present time. he thought more important business was before the house. he was not for making any decision that would give umbrage to any officer of the government. the secretary of state and the secretary of the treasury were equally entitled to public notice. mr. carroll was in favor of coming to a decision; and if nothing more could be offered against the motion for filling up the blank with the secretary of state, he presumed the committee were ripe for a decision. he referred to the situation of countries who had not, in season, made provision for a regent, &c. mr. sherman said, he was in favor of the committee's rising and reporting the bill, and leaving the blanks to be filled up in the house. mr. white was in favor of filling up the blank in the committee--he saw no reason for a delay. the officers mentioned are as well known now as they will be three days hence. the president and vice president being in health, is a reason why the subject should now be considered; it can be done with coolness and freedom from all warmth. mr. lawrence said, he thought there was no necessity for precipitating the decision. with respect to every person that has been named, difficulties have been started. the subject is important, and time should be given to deliberate on the several officers that have been named. he hoped, therefore, that the committee would rise and report the bill, and leave the blank to be filled up at another time. mr. burke was in favor of the committee's rising. he observed, that the members in general appeared to be very much undetermined. this is the first day the subject has been under consideration. he hoped the members would not be precipitated to vote on the occasion. mr. carroll said, if the committee should rise, he hoped the bill would not be reported, but that they would sit again. mr. burke said, he hoped the committee would sit again. the question on the committee's rising and reporting progress, was carried in the affirmative. thursday, january . _vacancy in the presidency._ in committee of the whole, on the bill declaring the officer who, in case of vacancy in the offices of president and vice president, shall exercise the office of president of the united states, mr. boudinot in the chair. the motion for filling up the blank with "the secretary of state for the time being," was renewed by mr. carroll. mr. livermore observed, that the character of the gentleman who fills that office should have no weight in determining the question, because the house was about to provide for a case that might not happen before a number of years were elapsed. the house should fix on the officer who would, from the nature of his office, most naturally succeed. he hoped they would not determine in favor of an officer of their own creating, and of which no mention is made in the constitution. the chief justice, he remarked, had been spoken of: one great objection he mentioned against him--the provision which the constitution makes in case the president is impeached, viz: that he should preside. as this was an elective government, he wished its principles preserved, and not to see the chief magistracy filled by an officer not the choice of the people. the president of the senate _pro tem_, appeared to him a much fitter officer to fill that station: he was originally chosen by the people to the senate. when amendments to the constitution came to be thought of, perhaps it would be proper to provide for this case by a special clause in it, empowering the electors who had chosen the president and vice president, in case of vacancy, to meet again, and make another choice; only, however, for the remainder of the four years; because, at the end of that time, the power of choosing the electors should return to, and be exercised by the several states. if the motion before the committee was negatived, he gave notice that he would bring in his, viz: to fill up the blank with the person last antecedently chosen president of the senate. mr. baldwin said, that he should vote for the present motion, because he conceived that the constitution is express, that an officer of the government, designated either by the law or the constitution, should be appointed to fill this vacancy. he stated some objections against the chief justice. he is an officer who ought to be entirely detached from all political agitations whatever--his mind ought to be kept calm and as unembarrassed as possible. he quoted the precedent established in the law instituting the governor of the western territory--there the secretary is to succeed the governor. the secretary of state is an executive officer, an assistant to the president, and must be supposed, from his situation, to be the most proper person to supply the vacancy. mr. sherman was of opinion, that putting the chief magistracy into the hands of a subordinate officer, was by no means proper. as to the observations made by the gentleman last up, on the arrangements in the government of the western territory, he did not think they could be applied to the present case. that government is a subordinate one, and a kind of legislative power is vested in the governor of selecting, from the laws and regulations of the different states, such as he thought requisite for the government of those he had under his care. he was in favor of giving the supreme executive, in case of accident, to the president of the senate. the government would certainly suffer fewer inconveniences by that arrangement than if the head of a department was put in. the vice president, by the constitution, succeeds to the president--the president of the senate to the office of the first; it is therefore very natural that he should also exercise the duties of the second in case of a vacancy. to designate any officer as possible successor to the president, would be giving him too much dignity, and raising him, in a manner, even above the legislature. mr. carroll observed, that the vacancy might happen in the recess of the legislature, or in the absence of the president of the senate; the secretary of state would always be at the seat of government. besides, the constitution declares the vacancy shall be filled by an officer of the government. the president of the senate is only an officer _pro tem_. if the framers of the constitution had intended the vacancy should be filled by an officer named in it, they could have designated him; but this they had not done; he therefore supposed they had in view some officer not then in existence. mr. gerry regretted that the subject should have been taken up at this moment, when so much important business is before congress. he adverted to the motion, and said, that the character which now fills the office of secretary of state undoubtedly possessed the confidence of the legislature in the fullest manner, and very justly; but when the exigency shall arrive for which we now are about to provide, a character may fill that office who would be a scourge to the union. besides, said he, if the office of vice president was now to be filled, the secretary of state would be ineligible, coming from the same state with the president. he stated other objections from the constitution. he thought the nomination should not be confined to officers of the united states. he supposed the views of government may be extended even to officers of the several states. he, however, wished the whole business postponed; but if this idea is overruled, he suggested the propriety of filling the blank with the constitutional clause respecting the highest candidates who are primarily voted for as president and vice president. mr. smith remarked, that there appeared to be so great a diversity of opinion on the subject before the house, that he doubted the possibility of procuring a majority for either of the motions that had been made. there would be objections, he conceived, to any proposition that could be offered; but the committee should determine on that to which there were fewest. to the secretary of state he thought there were less than to any other officer proposed. those against the chief justice he thought unanswerable. indeed, the gentleman who proposed him had not offered any answer to the objections made to that officer. the duties of the president of the senate, and those of the president of the united states, appeared to him incompatible. the first was the representative of a particular state, and bound to obey the instructions of it. if he was to be deprived of his seat in the senate, his state would lose a vote there, and the balance of that branch of the legislature would be destroyed. he recapitulated the objections that had already been made to the chief justice's filling the chair. his power of expounding treaties would be improperly mixed with that of making them; that of condemning for offences, with a power of granting reprieves and pardons. then the chief justice could not act with propriety as commander-in-chief of the army and navy. it had been said, he observed, that the judiciary business might go on for some time without the assistance of the chief justice. he thought not; there were three circuit courts, and two judges for each, including the chief justice. if he was absent, the business of one of the circuits could not proceed; besides, he should preside in the supreme court. he concluded by saying, that the office of secretary of state and the duties of president were analogous. he was a kind of assistant to the chief magistrate, and would, therefore, very properly supply his place; besides, he was always at the seat of government. mr. burke said, that he had consulted a gentleman skilled in the doctrine of chances, who, after considering the subject, had informed him, that there was an equal chance that such a contingency would not happen more than once in eight hundred and forty years. he hoped, therefore, that the committee would not spend any more time upon the subject, but postpone it altogether. mr. giles conceived, that the probability of the event taking place was much greater than mr. burke seemed to think. according to the doctrine of politics, he said, it was not more than fifty to one that it would not happen in two months. however, even if the chance was much less, it was the duty of the house to make provision for the accident before it occurred. if it was left till the case actually took place, it would then be too late to think of remedying the evil; for it was to be provided for by a legislative act, which could not be made complete without the president's approbation and signature, and could therefore not be obtained when the chair was vacant. then, if the event should happen before it was provided for, there would be, he conceived, an end to this government. he used another argument to urge the necessity of a speedy provision. suppose, said he, the vice president should die, then the fate of this government would remain in the hands of the president, who, by resigning, would destroy its organization, without leaving a constitutional mode of filling the vacancy. in addition to the loss of this government, would not every member of the legislature, he asked, lose his character, credit, and reputation? having shown the necessity of making immediate provision for a case of so much importance to the very existence of the government, mr. giles declared he was in favor of filling up the blank with the secretary of state. he chiefly rested his opinion on the idea, that if the constitution had not intended that the vacancy should be filled by some officer not there mentioned, they would have determined who it should be. mr. sedgwick was sorry that the business had been brought forward, and more so that gentlemen should discover a zeal on the occasion which indicated too much of taking a personal interest in the question. he did not apprehend the consequences which would follow, if the accident should occur, would be so dreadful as the gentleman last up appeared to think. there was more danger, he conceived, in ruffling men's tempers now, by designating one officer heir apparent (if he might be allowed the expression) to the office of chief magistrate. he objected to filling up the blank with the secretary of state; it would be putting in the hands of the president (or of the vice president) a power of appointing his successor. the authority with which the chief justice is vested, the respect which his station commands, and his independence, induced him, he said, at first to think him the most proper person to be at the head of affairs, in case of vacancy in the chief magistracy. however, if it could not be agreed to postpone the business, he should now vote for the president of the senate _pro tem_. mr. benson said, that an honorable gentleman (mr. smith) had remarked that he had not attempted to answer the objections which were made to the chief justice's being designated to fill the vacancy, and had drawn the conclusion that the objections were unanswerable. he was sensible that there might and would be objections to any officer that could be mentioned; but those against the chief justice he did not think unanswerable. it had been objected that there would be an impropriety in his condemning as chief justice, and pardoning as president. but something like this is frequently the case. he supposed that whoever exercised the office of chief magistrate would for the time resign his first office. he only mentioned this to show that the objections made to the chief justice had not been answered because they were deemed unanswerable. but his wish was to see the vacancy filled by an independent officer; he had, therefore, no objection to the president of the senate _pro tem_. mr. jackson moved that the consideration of this business be postponed, which was agreed to. the committee rose and reported. friday, january . _duty on spirits._ the house resumed the consideration of the new revenue bill. mr. jackson proposed an amendment, by adding a clause to prevent inspectors, or any officers under them, from interfering, either directly or indirectly, in elections, further than giving their own votes, on penalty of forfeiting their offices. this being seconded, mr. sherman said, he should propose an addition to the amendment, and that was to extend the prohibition to every other person whatever. he supposed that to practise the arts of electioneering would be as criminal in persons in general as in the officers of the revenue; but if any provision is necessary in the case, he thought it might be made in some other bill. mr. livermore approved the motion. these officers, said he, will hold their places under the government, and, from the duties assigned them, will acquire such a knowledge of persons and characters, as will give them great advantages, and enable them to influence elections to a great degree. he thought the proposition important, and merited the attention of the house. mr. vining observed, that the motion went to disfranchise a great number of citizens of the rights of suffrage. it appeared to him, also, to be unconstitutional, as it will deprive them of speaking and writing their minds; a right of which no law can divest them. he offered some observations on the eligibility of the duty now contemplated, in preference to direct taxes; and then urged the bad policy of rendering the law odious, by fixing a stigma on the officers appointed to execute it. mr. jackson replied to the observations against his motion. he said the experience of great britain showed the propriety of the prohibition. he read a section from a law passed in the reign of william and mary on the subject. a law was found necessary in that country to prevent the interference of excise officers in elections, though the excise law then in existence was only for ten years, and that now before us is a perpetual law; for it is to exist till the whole state debts are extinguished. he denied that it was a disfranchisement of the citizens; they will have the same right to vote at the elections as other citizens; it only goes to defining an offence, which may be of pernicious consequence. did i consider it as depriving the citizens of the rights of suffrage, i would be the last to vote for it. he adverted particularly to the dangerous influence that some future president would acquire, by virtue of the power which he will possess of removing these officers. he read some clauses from the british excise law, to show its resemblance to the law now under consideration. he added some strictures on the bill, and regretted that it had not been recommitted; but to render it less odious and mischievous he strongly urged the necessity of the section he had proposed. mr. benson said, there appeared to him to be an absurdity to say a man shall forfeit an office which he holds during pleasure. mr. gerry objected to the motion, because he thought it did not go far enough; it ought to extend to all other revenue officers. he gave a short account of the nature of civil government; no form, said he, is stationary, they are always verging either to democracy or monarchy, or to aristocracy and despotism. from hence, he drew an inference favorable to a provision which should tend to abate and lessen the influence of the executive power in certain cases. mr. ames objected to the motion. he said, the circumstances of this country and great britain were not similar. that country is without a constitution; the united states are blessed with one, which defines the rights of the electors and the elected; rights of which they cannot be deprived. the law which the gentleman referred to was not passed till the abuses it was intended to remedy had arisen to an enormous height. if ever there should be a necessity for a similar law in this country, which he by no means expected, it will then be time enough to make the regulation; but this clause will muzzle the mouths of freemen, and take away the use of their reason. mr. bloodworth replied to mr. ames. he observed, that corruptions had taken place; elections have been influenced, and human nature being the same, the same evils are to be expected. he thought it would be best to prevent the evil if possible by enacting a law in season, and not wait till the mischief is done. mr. seney was in favor of the clause. he thought it would be a salutary provision, and no infringement on the rights of the people, as it would be optional to accept the offices or not, with this restriction. mr. stone was in favor of the motion. he observed, that it was a painful consideration that a number of citizens should be disfranchised, and deprived of their reason and speech, but this is a dilemma to which we shall be reduced by means of this excise law; we must either deprive the excise officers of this privilege of interfering, or give up the freedom of elections. mr. vining controverted the oft-repeated observation, that there was an analogy between the two countries, great britain and america. he urged an acceleration of the bill; delays he thought did not produce conviction, they only serve to inflame; he hoped the clause would not be agreed to, nor the bill recommitted. mr. lawrence was sorry that there were so many impediments thrown in the way of this bill. he could wish that the clause might be deferred, and made the subject of a separate discussion. he objected to it as not extensive enough. it ought to include all the officers of the government. at present, he should waive any further remarks, but hoped the motion would not be agreed to at this time, but wished that the bill might be finished. mr. sedgwick opposed the motion. he said, the natural tendency would be to render the law odious; to deprive the government of the services of the best men in our country. let me ask gentlemen, if they, or any of their connections, would accept an appointment under this law, with such an exceptionable clause in it? he observed on the total difference in the circumstances of this country and those of great britain; and asked, shall we transplant the corrupt maxims of that country to this? i hope we shall not. mr. gerry replied to the several objections which had been offered against the motion. it will be too late, said he, when the evil takes place to apply the remedy. the president will then have it in his power to influence the elections in such manner as to procure a legislature that would not consent to a law for applying a remedy. mr. ames reprobated the motion in very pointed terms, as impolitic in respect to the law, as repugnant to the constitution, and as degrading to human nature. besides, he observed, that it was nugatory in itself, because it goes to deprive the citizens of an inalienable right, which you cannot take from them, nor can they divest themselves of it. mr. jackson made a short reply to mr. ames. he observed, that he had always supposed that the english nation possessed a constitution, and that the violation of the freedom of elections was the greatest infringement on that constitution. mr. sherman observed, that this motion went to create a positive offence. he said he could not conceive any reason why this offence should be chargeable on one description of officers only; he thought it ought to go through, and include every class. he replied to the several objections arising from the influence of the president; and observed, that fixing such a stigma would oblige the president to appoint mean and ordinary characters--characters fit to make tools of; for persons of credit and respectability will not accept of appointments under such a disqualification. the question was determined in the negative, the yeas and nays being as follows: yeas.--messrs. ashe, baldwin, bloodworth, brown, burke, floyd, gerry, grout, hathorn, heister, jackson, livermore, mathews, moore, parker, rensselaer, seney, sylvester, stone, tucker, and white-- . nays.--messrs. ames, benson, boudinot, bourne, cadwalader, carroll, clymer, fitzsimons, foster, gale, gilman, goodhue, griffin, giles, hartley, huntington, lawrence, lee, leonard, madison, p. muhlenberg, schureman, scott, sedgwick, sevier, sherman, sinnickson, smith, (of maryland,) smith, (of south carolina,) steele, sturges, thatcher, trumbull, vining, wadsworth, williamson, and wynkoop-- .[ ] thursday, january . _duty on spirits._ the engrossed bill, repealing, after the last day of june next, the duties heretofore laid on distilled spirits imported from abroad, and laying others in their stead, and also upon spirits distilled within the united states, and for appropriating the same, was passed by a majority of fourteen. the yeas and nays being called for, were as follows: yeas.--messrs. ames, benson, boudinot, bourne, cadwalader, carroll, clymer, fitzsimons, floyd, foster, gerry, gilman, goodhue, griffin, grout, huntington, lawrence, lee, leonard, livermore, madison, partridge, schureman, sedgwick, sherman, sylvester, sinnickson, smith (of south carolina), sturges, thatcher, trumbull, vining, wadsworth, white, and wynkoop-- . nays.--messrs. ashe, baldwin, bloodworth, brown, burke, giles, hartley, hathorn, heister, jackson, mathews, moore, muhlenberg, parker, van rensselaer, seney, smith (of maryland), steele, stone, tucker, and williamson-- . tuesday, february . _bank of the united states._ the bill sent from the senate, to incorporate the subscribers to the bank of the united states, was read the third time; and, the question being on the passage of the bill, mr. smith (of south carolina) observed, that the bill being taken up rather unexpectedly yesterday, gentlemen did not appear prepared to discuss the subject. it therefore was suffered to be read in committee of the whole, and passed to the third reading, in his opinion, rather informally; as the members were thereby deprived of giving their sentiments in the usual manner on a bill of the greatest importance. he thought it susceptible of various amendments. [the speaker having observed, that the bill, agreeably to the rules of the house, could not be amended without being recommitted,] mr. s. moved, that the bill should be recommitted, for the purpose of making sundry alterations, and removing objections which he thought the bill liable to. he then enumerated several objections. those who are to receive the subscriptions, he said, by the bill, are not obliged to give any bonds for their fidelity. he thought the clause which excludes foreigners from voting by proxy exceptionable; and the time in which subscriptions are to be received, he thought too contracted. mr. jackson said he was in favor of the motion for a recommitment; but not for the reasons offered by the gentleman from south carolina. he was opposed to the principle of the bill altogether. he then adverted to the situation of the united states, and observed, that it was so different from that of great britain, at the time the bank was established in that country, that no reason in favor of the institution can be deduced from thence. he adverted to the arguments arising from the facility which banks afford of anticipating the public resources in case of emergency. this idea of anticipations he reprobated, as tending to involve the country in debt, and an endless labyrinth of perplexities. this plan of a national bank, said he, is calculated to benefit a small part of the united states, the mercantile interest only; the farmers, the yeomanry, will derive no advantage from it; as the bank bills will not circulate to the extremities of the union. he said he had never seen a bank bill in the state of georgia, nor will they ever benefit the farmers of that state, or of new hampshire. he urged that there was no necessity for instituting a new bank. there is one already established in this city, under the style of the bank of north america. this proposed institution is an infringement of the charter of that bank, which cannot be justified. he urged the unconstitutionality of the plan; called it a monopoly; such a one as contravenes the spirit of the constitution; a monopoly of a very extraordinary nature; a monopoly of the public moneys for the benefit of the corporation to be created. he then read several passages from the _federalist_, which he said were directly contrary to the assumption of the power proposed by the bill. he hoped, therefore, that it would be recommitted; and he could not help hoping, also, that it would be deferred to the next session. mr. lawrence observed, that the friends of the institution proposed had been unjustly charged with precipitating the bill; but, he said, it had long been in the hands of the members; they have had time to consider it; the usual forms have been observed in its progress thus far; and if those who are opposed to the bill did not see proper to come forward with their objections, it surely is their own fault, and the advocates of the bill are not justly chargeable with precipitancy. he then particularly replied to the objections offered by mr. smith, of south carolina; and after considering them, said, that those objections did not, in his opinion, constitute sufficient reason to induce a recommitment of the bill. he then noticed the constitutional objections of mr. jackson, and said, the government of the united states is vested by the constitution with a power of borrowing money; and in pursuance of this idea, they have a right to create a capital, by which they may, with greater facility, carry the power of borrowing on any emergency into effect. under the late confederation, the pennsylvania bank, called the bank of north america, was instituted. he presumed that it will not be controverted, that the present government is vested with powers equal to those of the late confederation. he said, that he had no doubt its operation would benefit, not only the centre, but the extremities also of the union. the commercial, mechanical, and agricultural interests of the united states are so combined, that one cannot be benefited without benefiting the other. he concluded by observing, that he thought the legislature of the united states could not better answer the purposes of their appointment, than by passing this bill. he hoped, therefore, that it would not be recommitted, but that it would now pass. mr. lee observed, that having been confined by sickness, he was precluded from attending the house yesterday; but sick as he was, had he supposed that there was a prospect of a bill of such magnitude and importance passing without a discussion of its principles, he certainly would have attended, and offered his objections to various parts of it, which he thought very exceptionable. he hoped, therefore, it would now be recommitted; that a bill which is so unequal and so partial may undergo a thorough discussion. mr. tucker was in favor of a recommitment. he acknowledged that those who had their objections to the bill were certainly blamable for not coming forward with them yesterday. he then stated sundry objections to the bill. the time allowed to receive the subscriptions, he said, is too short, and will benefit those only in the vicinity of the bank. the clause which authorizes the loaning of one hundred thousand dollars to the government, without express provision by law, he thought exceptionable, as the executive will be able, by this means, to borrow at any time, without being authorized, to almost any amount, of the bank. the loan of two millions of dollars by the united states to the bank, he objected to; as diverting that sum from the particular object for which it was borrowed. there is no appropriation, he said, of the half yearly dividend of profits accruing to the united states, which, he observed, was a very essential defect. mr. t. stated other objections, as reasons for a recommitment. mr. williamson was in favor of the recommitment, to give those who say they have not had an opportunity of offering their objections, time to do it; and if the motion be not agreed to, he should not give his vote for the bill. he then adverted to the objections deduced from the constitution, and explained the clause respecting monopolies as referring altogether to commercial monopolies. mr. sherman objected to the recommitment. he said, that though the bill could not be amended without its being recommitted, yet it was open to discussion and objection previous to taking a vote on its passage. he did not think the objections offered afforded sufficient reasons for a recommitment. he replied to the observations offered by several gentlemen who had spoken in favor of the motion. mr. gerry expressed his surprise at the observations of gentlemen who had neglected to offer their objections to the bill before, and said it could only be imputed to their own neglect, and not to any precipitancy on the part of the friends of the bill. mr. g. noticed several objections which had been offered, and said, if nothing more important could be offered, he thought it would be unjustifiable in the house to go into a committee. mr. madison observed, that at this moment it was not of importance to determine how it has happened that the objections which several gentlemen now say they have to offer against the bill were not made at the proper time. it is sufficient for them, if the candor of the house should lead them now to recommit the bill, that in a committee of the whole they may have an opportunity of offering their objections. mr. ames replied to mr. madison. he said, he did not conceive that the appeal now made to the candor of the house was in point. the gentlemen who object to the bill had an opportunity to offer their objections; the customary forms have been attended to; and the whole question for the recommitment turns on the force of the objections which are now offered to the general principles of the bill altogether. the candor of the house, he conceived, was entirely out of the question, and therefore not to be appealed to; but the justice due to their constituents in the proper discharge of the duty reposed in them. he said, it appeared to him absurd to go into committee of the whole to determine whether the bill is constitutional or not. if it is unconstitutional, that amounts to a rejection of it altogether. mr. madison thought there was the greatest propriety in discussing a constitutional question in committee of the whole. mr. stone and mr. giles were in favor of the recommitment. they objected to the unconstitutionality of the bill, and to several of its particular clauses. mr. vining said, he thought it was a subject of congratulation that the bill was in its present situation; it had happily passed to the third reading without that tedious discussion which bills usually receive. the subject has been a considerable time before the house, and gentlemen have had time to contemplate it. the bill is now in the stage to which gentlemen very usually reserve themselves to state their objections at large, and he hoped they would now do it. he was not perfectly satisfied as to the constitutional point. he therefore hoped gentlemen would state their objections, that those who are satisfied on that point may offer their reasons. mr. boudinot stated the process of the business yesterday. he observed that he had then the honor to be in the chair. he had read the bill very distinctly and deliberately, with proper pauses; he thought that the fullest opportunity had been offered for gentlemen to come forward with their objections. he was opposed to the recommitment, as it would, he feared, issue in a defeat of the bill this session. he had one difficulty, however, respecting the unconstitutionality of the bill, which he hoped to have removed; and he hoped that a full discussion of its general principles would take place. the motion for a recommitment was lost, as follows: yeas.--messrs. ashe, baldwin, bloodworth, bourne, brown, burke, carroll, contee, gale, grout, giles, jackson, lee, madison, mathews, moore, parker, smith, (of maryland,) smith, (of south carolina,) stone, tucker, white, and williamson-- . nays.--messrs. ames, benson, boudinot, cadwalader, clymer, fitzsimons, floyd, foster, gerry, gilman, goodhue, hartley, hathorn, heister, huntington, lawrence, leonard, livermore, muhlenberg, partridge, rensselaer, schureman, scott, seney, sherman, sylvester, sinnickson, steele, sturges, thatcher, trumbull, vining, wadsworth, and wynkoop-- . wednesday, february . _bank of the united states._ the house resumed the consideration of the bill sent from the senate to incorporate the subscribers to the bank of the united states. the bill being on its passage, mr. madison began with a general review of the advantages and disadvantages of banks. the former he stated to consist in, first, the aid they afford to merchants, who can thereby push their mercantile operations further with the same capital. second, the aids to merchants in paying punctually the customs. third, aids to the government in complying punctually with its engagements, when deficiencies or delays happen in the revenue. fourth, in diminishing usury. fifth, in saving the wear of gold and silver kept in the vaults, and represented by notes. sixth, in facilitating occasional remittances from different places where notes happen to circulate. the effect of the proposed bank, in raising the value of stock, he thought had been greatly overrated. it would no doubt raise that of the stock subscribed into the bank; but could have little effect on stock in general, as the interest on it would remain the same, and the quantity taken out of the market would be replaced by bank stock. the principal disadvantages consisted in, first, banishing the precious metals, by substituting another medium to perform their office. this effect was inevitable. it was admitted by the most enlightened patrons of banks, particularly by _smith on the wealth of nations_. the common answer to the objection was, that the money banished was only an exchange for something equally valuable that would be imported in return. he admitted the weight of this observation in general; but doubted whether, in the present habits of this country, the returns would not be in articles of no permanent use to it. second. exposing the public and individuals to all the evils of a run on the bank, which would be particularly calamitous in so great a country as this, and might happen from various causes, as false rumors, bad management of the institution, an unfavorable balance of trade from short crops, &c. it was proper to be considered, also, that the most important of the advantages would be better obtained by several banks, properly distributed, than by a single one. the aids to commerce could only be afforded at or very near the seat of the bank. the same was true of aids to merchants in the payment of customs. anticipations of the government would also be most convenient at the different places where the interest of the debt was to be paid. the case in america was different from that in england: the interest there was all due at one place, and the genius of the monarchy favored the concentration of wealth and influence at the metropolis. he thought the plan liable to other objections. it did not make so good a bargain for the public as was due to its interests. the charter to the bank of england had been granted for eleven years only, and was paid for by a loan to the government on terms better than could be elsewhere got. every renewal of the charter had, in like manner, been purchased; in some instances, at a very high price. the same had been done by the banks of genoa, naples, and other like banks of circulation. the plan was unequal to the public creditors; it gave an undue preference to the holders of a particular denomination of the public debt, and to those at and within reach of the seat of government. if the subscriptions should be rapid, the distant holders of evidences of debt would be excluded altogether. in making these remarks on the merits of the bill, he had reserved to himself the right to deny the authority of congress to pass it. he had entertained this opinion from the date of the constitution. his impression might, perhaps, be the stronger, because he well recollected that a power to grant charters of incorporation had been proposed in the general convention and rejected. is the power of establishing an incorporated bank among the powers vested by the constitution in the legislature of the united states? this is the question to be examined. after some general remarks on the limitations of all political power, he took notice of the peculiar manner in which the federal government is limited. it is not a general grant, out of which particular powers are excepted; it is a grant of particular powers only, leaving the general mass in other hands. so it had been understood by its friends and its foes, and so it was to be interpreted. as preliminaries to a right interpretation, he laid down the following rules: an interpretation that destroys the very characteristic of the government cannot be just. where a meaning is clear, the consequences, whatever they may be, are to be admitted--where doubtful, it is fairly triable by its consequences. in controverted cases, the meaning of the parties to the instrument, if to be collected by reasonable evidence, is a proper guide. contemporary and concurrent expositions are a reasonable evidence of the meaning of the parties. in admitting or rejecting a constructive authority, not only the degree of its incidentality to an express authority is to be regarded, but the degree of its importance also; since on this will depend the probability or improbability of its being left to construction. reviewing the constitution with an eye to these positions, it was not possible to discover in it the power to incorporate a bank. the only clauses under which such a power could be pretended, are either: . the power to lay and collect taxes to pay the debts, and provide for the common defence and general welfare; or, . the power to borrow money on the credit of the united states; or, . the power to pass all laws necessary and proper to carry into execution those powers. the bill did not come within the first power. it laid no tax to pay the debts, or provide for the general welfare. it laid no tax whatever. it was altogether foreign to the subject. no argument could be drawn from the terms "common defence and general welfare." the power as to these general purposes was limited to acts laying taxes for them; and the general purposes themselves were limited and explained by the particular enumeration subjoined. to understand these terms in any sense that would justify the power in question, would give to congress an unlimited power; would render nugatory the enumeration of particular powers; would supersede all the powers reserved to the state governments. these terms are copied from the articles of confederation; had it ever been pretended that they were to be understood otherwise than as here explained? it had been said, that "general welfare" meant cases in which a general power might be exercised by congress, without interfering with the powers of the states; and that the establishment of a national bank was of this sort. there were, he said, several answers to this novel doctrine. . the proposed bank would interfere, so as indirectly to defeat a state bank at the same place. . it would directly interfere with the rights of the states to prohibit as well as to establish banks, and the circulation of bank notes. he mentioned a law in virginia actually prohibiting the circulation of notes payable to bearer. . interference with the power of the states was no constitutional criterion of the power of congress. if the power was not given, congress could not exercise it; if given, they might exercise it, although it should interfere with the laws, or even the constitution of the states. . if congress could incorporate a bank merely because the act would leave the states free to establish banks also, any other incorporations might be made by congress. they could incorporate companies of manufacturers, or companies for cutting canals, or even religious societies, leaving similar incorporations by the states, like state banks, to themselves. congress might even establish religious teachers in every parish, and pay them out of the treasury of the united states, leaving other teachers unmolested in their functions. these inadmissible consequences condemned the controverted principle. the case of the bank established by the former congress had been cited as a precedent. this was known, he said, to have been the child of necessity. it never could be justified by the regular powers of the articles of confederation. congress betrayed a consciousness of this in recommending to the states to incorporate the bank also. they did not attempt to protect the bank notes by penalties against counterfeiters. these were reserved wholly to the authority of the states. the second clause to be examined is that which empowers congress to borrow money. is this bill to borrow money? it does not borrow a shilling. is there any fair construction by which the bill can be deemed an exercise of the power to borrow money? the obvious meaning of the power to borrow money, is that of accepting it from, and stipulating payment to those who are able and willing to lend. to say that the power to borrow involves a power of creating the ability, where there may be the will, to lend, is not only establishing a dangerous principle, as will be immediately shown, but is as forced a construction as to say that it involves the power of compelling the will, where there may be the ability to lend. the third clause is that which gives the power to pass all laws necessary and proper to execute the specified powers. whatever meaning this clause may have, none can be admitted, that would give an unlimited discretion to congress. its meaning must, according to the natural and obvious force of the terms and the context, be limited to means necessary to the end, and incident to the nature of the specified powers. the clause is in fact merely declaratory of what would have resulted by unavoidable implication, as the appropriate, and, as it were, technical means of executing those powers. in this sense it has been explained by the friends of the constitution, and ratified by the state conventions. the essential characteristic of the government, as composed of limited and enumerated powers, would be destroyed, if, instead of direct and incidental means, any means could be used, which, in the language of the preamble to the bill, "might be conceived to be conducive to the successful conducting of the finances, or might be conceived to tend to give facility to the obtaining of loans." he urged an attention to the diffuse and ductile terms which had been found requisite to cover the stretch of power contained in the bill. he compared them with the terms necessary and proper, used in the constitution, and asked whether it was possible to view the two descriptions as synonymous, or the one as a fair and safe commentary on the other. if, proceeded he, congress, by virtue of the power to borrow, can create the means of lending, and, in pursuance of these means, can incorporate a bank, they may do any thing whatever creative of like means. the east india company has been a lender to the british government, as well as the bank, and the south sea company is a greater creditor than either. congress, then, may incorporate similar companies in the united states, and that too not under the idea of regulating trade, but under that of borrowing money. private capitals are the chief resources for loans to the british government. whatever then may be conceived to favor the accumulation of capitals may be done by congress. they may incorporate manufacturers. they may give monopolies in every branch of domestic industry. if, again, congress, by virtue of the power to borrow money, can create the ability to lend, they may, by virtue of the power to levy money, create the ability to pay it. the ability to pay taxes depends on the general wealth of the society, and this, on the general prosperity of agriculture, manufactures, and commerce. congress then may give bounties and make regulations on all of these objects. the states have, it is allowed on all hands, a concurrent right to lay and collect taxes. this power is secured to them, not by its being expressly reserved, but by its not being ceded by the constitution. the reasons for the bill cannot be admitted, because they would invalidate that right; why may it not be conceived by congress, that a uniform and exclusive imposition of taxes, would not less than the proposed banks "be conducive to the successful conducting of the national finances, and tend to give facility to the obtaining of revenue, for the use of the government?" the doctrine of implication is always a tender one. the danger of it has been felt in other governments. the delicacy was felt in the adoption of our own; the danger may also be felt if we do not keep close to our chartered authorities. mark the reasoning on which the validity of the bill depends! to borrow money is made the end, and the accumulation of capitals implied as the means. the accumulation of capitals is then the end, and a bank implied as the means. the bank is then the end, and a charter of incorporation, a monopoly, capital punishments, &c., implied as the means. if implications thus remote and thus multiplied, can be linked together, a chain may be formed that will reach every object of legislation, every object within the whole compass of political economy. the latitude of interpretation required by the bill is condemned by the rule furnished by the constitution itself. congress have power "to regulate the value of money;" yet it is expressly added, not left to be implied, that counterfeiters may be punished. they have the power "to declare war," to which armies are more incident than incorporated banks to borrowing; yet the power "to raise and support armies" is expressly added; and to this again, the express power "to make rules and regulations for the government of armies;" a like remark is applicable to the powers as to the navy. the regulation and calling out of the militia are more appertinent to war than the proposed bank to borrowing; yet the former is not left to construction. the very power to borrow money is a less remote implication from the power of war, than an incorporated monopoly bank from the power of borrowing; yet, the power to borrow is not left to implication. it is not pretended that every insertion or omission in the constitution is the effect of systematic attention. this is not the character of any human work, particularly the work of a body of men. the examples cited, with others that might be added, sufficiently inculcate, nevertheless, a rule of interpretation very different from that on which the bill rests. they condemn the exercise of any power, particularly a great and important power, which is not evidently and necessarily involved in an express power. it cannot be denied that the power proposed to be exercised is an important power. as a charter of incorporation, the bill creates an artificial person, previously not existing in law. it confers important civil rights and attributes which could not otherwise be claimed. it is, though not precisely similar, at least equivalent, to the naturalization of an alien, by which certain new civil characters are acquired by him. would congress have had the power to naturalize, if it had not been expressly given? in the power to make by-laws, the bill delegated a sort of legislative power, which is unquestionably an act of a high and important nature. he took notice of the only restraint on the by-laws, that they were not to be contrary to the law and the constitution of the bank, and asked what law was intended; if the law of the united states, the scantiness of their code would give a power never before given to a corporation, and obnoxious to the states, whose laws would then be superseded, not only by the laws of congress, but by the by-laws of a corporation within their own jurisdiction. if the law intended was the law of the state, then the state might make laws that would destroy an institution of the united states. the bill gives a power to purchase and hold lands; congress themselves could not purchase lands within a state "without the consent of its legislature." how could they delegate a power to others which they did not possess themselves? it takes from our successors who have equal rights with ourselves, and with the aid of experience will be more capable of deciding on the subject, an opportunity of exercising that right for an immoderate term. it takes from our constituents the opportunity of deliberating on the untried measure, although their hands are also to be tied by it for the same term. it involves a monopoly, which affects the equal rights of every citizen. it leads to a penal regulation, perhaps capital punishments, one of the most solemn acts of sovereign authority. from this view of the power of incorporation exercised in the bill, it could never be deemed an accessory or subaltern power, to be deduced by implication as a means of executing another power; it was in its nature a distinct, an independent and substantive prerogative, which not being enumerated in the constitution, could never have been meant to be included in it, and not being included could never be rightfully exercised. he here adverted to a distinction, which he said had not been sufficiently kept in view, between a power necessary and proper for the government or union, and a power necessary and proper for executing the enumerated powers. in the latter case, the powers included in the enumerated powers were not expressed, but to be drawn from the nature of each. in the former, the powers composing the government were expressly enumerated. this constituted the peculiar nature of the government; no power, therefore, not enumerated could be inferred from the general nature of government. had the power of making treaties, for example, been omitted, however necessary it might have been, the defect could only have been lamented, or supplied by an amendment of the constitution. but the proposed bank could not even be called necessary to the government: at most it could be but convenient. its uses to the government could be supplied by keeping the taxes a little in advance; by loans from individuals; by the other banks, over which the government would have equal command; nay greater, as it might grant or refuse to these the privilege (a free and irrevocable gift to the proposed bank) of using their notes in the federal revenue. he proceeded next to the contemporary expositions given to the constitution. the defence against the charge founded on the want of a bill of rights presupposed, he said, that the powers not given were retained; and that those given were not to be extended by remote implications. on any other supposition, the power of congress to abridge the freedom of the press, or the rights of conscience, &c., could not have been disproved. the explanations in the state conventions all turned on the same fundamental principle, and on the principle that the terms necessary and proper gave no additional powers to those enumerated. [here he read sundry passages from the debates of the pennsylvania, virginia, and north carolina conventions, showing the grounds on which the constitution had been vindicated by its principal advocates, against a dangerous latitude of its powers, charged on it by its opponents.] he did not undertake to vouch for the accuracy or authenticity of the publications which he quoted. he thought it probable that the sentiments delivered might, in many instances, have been mistaken, or imperfectly noted; but the complexion of the whole, with what he himself and many others must recollect, fully justified the use he had made of them. the explanatory declarations and amendments accompanying the ratifications of the several states formed a striking evidence, wearing the same complexion. he referred those who might doubt on the subject, to the several acts of ratification. the explanatory amendments proposed by congress themselves, at least, would be good authority with them; all these renunciations of power proceeded on a rule of construction, excluding the latitude now contended for. these explanations were the more to be respected, as they had not only been proposed by congress, but ratified by nearly three-fourths of the states. he read several of the articles proposed, remarking particularly on the th and th; the former, as guarding against a latitude of interpretation; the latter, as excluding every source of power not within the constitution itself. with all this evidence of the sense in which the constitution was understood and adopted, will it not be said, if the bill should pass, that its adoption was brought about by one set of arguments, and that it is now administered under the influence of another set? and this reproach will have the keener sting, because it is applicable to so many individuals concerned in both the adoption and administration. in fine, if the power were in the constitution, the immediate exercise of it cannot be essential; if not there, the exercise of it involves the guilt of usurpation, and establishes a precedent of interpretation levelling all the barriers which limit the powers of the general government, and protect those of the state governments. if the point be doubtful only, respect for ourselves, who ought to shun the appearance of precipitancy and ambition; respect for our successors, who ought not lightly to be deprived of the opportunity of exercising the rights of legislation; respect for our constituents, who have had no opportunity of making known their sentiments, and who are themselves to be bound down to the measure for so long a period; all these considerations require that the irrevocable decision should at least be suspended until another session. it appeared on the whole, he concluded, that the power exercised by the bill was condemned by the silence of the constitution; was condemned by the rule of interpretation arising out of the constitution; was condemned by its tendency to destroy the main characteristic of the constitution; was condemned by the expositions of the friends of the constitution, whilst depending before the public; was condemned by the apparent intention of the parties which ratified the constitution; was condemned by the explanatory amendments proposed by congress themselves to the constitution; and he hoped it would receive its final condemnation by the vote of this house. thursday, february . _bank of the united states._ the house resumed the consideration of the bill sent from the senate, to incorporate the subscribers to the bank of the united states. a motion was made by mr. williamson to recommit the bill, for the purpose of amending the first section by prolonging the time for receiving subscriptions from october to april; this motion occasioned some debate, and was determined in the negative; the yeas and nays being as follow: yeas.--messrs. baldwin, bloodworth, brown, burke, carroll, contee, gale, giles, grout, jackson, lee, madison, mathews, moore, sevier, smith, (of south carolina,) steele, stone, tucker, white, and williamson-- . nays.--messrs. ames, benson, boudinot, bourne, cadwalader, clymer, fitzsimons, floyd, gerry, gilman, goodhue, griffin, hartley, hathorn, heister, huntington, lawrence, leonard, livermore, muhlenberg, parker, partridge, rensselaer, schureman, scott, sedgwick, seney, sherman, smith, (of maryland,) sylvester, sinnickson, sturges, thatcher, trumbull, vining, wadsworth, and wynkoop-- . mr. ames.--little doubt remains with respect to the utility of banks. it seems to be conceded within doors and without, that a public bank would be useful to trade, that it is almost essential to revenue, and that it is little short of indispensably necessary in times of public emergency. in countries whose forms of government left them free to choose, this institution has been adopted of choice, and in times of national danger and calamity, it has afforded such aid to government as to make it appear, in the eyes of the people, a necessary means of self-preservation. the subject, however intricate in its nature, is at last cleared from obscurity. it would not be difficult to establish its principles, and to deduce from its theory such consequences as would vindicate the policy of the measure. but why should we lose time to examine the theory when it is in our power to resort to experience? after being tried by that test, the world has agreed in pronouncing the institution excellent. this new capital will invigorate trade and manufactures with new energy. it will furnish a medium for the collection of the revenues; and if government should be pressed by a sudden necessity, it will afford seasonable and effectual aid. with all these and many other pretensions, if it was now a question whether congress should be vested with the power of establishing a bank, i trust that this house and all america would assent to the affirmative. this, however, is not a question of expediency, but of duty. we are not at liberty to examine which of several modes of acting is entitled to the preference. but we are solemnly warned against acting at all. we are told that the constitution will not authorize congress to incorporate the subscribers to the bank. let us examine the constitution, and if that forbids our proceeding, we must reject the bill; though we shall do it with deep regret that such an opportunity to serve our country must be suffered to escape for the want of a constitutional power to improve it. the gentleman from virginia considers the opposers of the bill as suffering disadvantage, because it was not debated as bills usually are in the committee of the whole. he has prepared us to pronounce a eulogium upon his consistency by informing us that he voted in the old congress against the bank of north america, on the ground of his present objection to the constitutionality. he has told us that the meaning of the constitution is to be interpreted by contemporaneous testimony. he was a member of the convention which formed it, and of course his opinion is entitled to peculiar weight. while we respect his former conduct, and admire the felicity of his situation, we cannot think he sustains disadvantage in the debate. besides, he must have been prepared with objections to the constitutionality, because he tells us they are of long standing, and had grown into a settled habit of thinking. why, then, did he suffer the bill to pass the committee in silence? the friends of the bill have more cause to complain of disadvantage; for while he has had time to prepare his objections, they are obliged to reply to them without premeditation. in making this reply i am to perform a task for which my own mind has not admonished me to prepare. i never suspected that the objections i have heard stated had existence; i consider them as discoveries; and had not the acute penetration of that gentleman brought them to light, i am sure that my own understanding would never have suggested them. it seems strange, too, that in our enlightened country the public should have been involved in equal blindness. while the exercise of even the lawful powers of government is disputed, and a jealous eye is fixed on its proceedings, not a whisper has been heard against its authority to establish a bank. still, however unseasonably, the old alarm of public discontent is sounded in our ears. two questions occur; may congress exercise any powers which are not expressly given in the constitution, but may be deduced by a reasonable construction of that instrument? and, secondly, will such a construction warrant the establishment of the bank? the doctrine that powers may be implied which are not expressly vested in congress has long been a bugbear to a great many worthy persons. they apprehend that congress, by putting constructions upon the constitution, will govern by its own arbitrary discretion; and therefore that it ought to be bound to exercise the powers expressly given, and those only. if congress may not make laws conformably to the powers plainly implied, though not expressed in the frame of government, it is rather late in the day to adopt it as a principle of conduct. a great part of our two years' labor is lost, and worse than lost to the public, for we have scarcely made a law in which we have not exercised our discretion with regard to the true intent of the constitution. any words but those used in that instrument will be liable to a different interpretation. we may regulate trade; therefore we have taxed ships, erected light-houses, made laws to govern seamen, &c., because we say that they are the incidents to that power. the most familiar and undisputed acts of legislation will show that we have adopted it as a safe rule of action, to legislate beyond the letter of the constitution. he proceeded to enforce this idea by several considerations, and illustrated it by various examples. he said, that the ingenuity of man was unequal to providing, especially beforehand, for all the contingencies that would happen. the constitution contains the principles which are to govern in making laws; but every law requires an application of the rule to the case in question. we may err in applying it; but we are to exercise our judgments, and on every occasion to decide according to an honest conviction of its true meaning. the danger of implied power does not arise from its assuming a new principle; we have not only practised it often, but we can scarcely proceed without it; nor does the danger proceed so much from the extent of the power as from its uncertainty. while the opposers of the bank exclaim against the exercise of this power by congress, do they mark out the limits of the power which they will leave to us, with more certainty than is done by the advocates of the bank? their rules of interpretation by contemporaneous testimony, the debates of conventions, and the doctrine of substantive and auxiliary powers, will be found as obscure, and of course as formidable, as that which they condemn; they only set up one construction against another. the powers of congress are disputed. we are obliged to decide the question according to truth. the negative, if false, is less safe than the affirmative, if true. why, then, shall we be told that the negative is the safe side? not exercising the powers we have, may be as pernicious as usurping those we have not. if the power to raise armies had not been expressed in the enumeration of the powers of congress, it would be implied from other parts of the constitution. suppose, however, that it were omitted, and our country invaded, would a decision in congress against raising armies be safer than the affirmative? the blood of our citizens would be shed, and shed unavenged. he thought, therefore, that there was too much prepossession with some against the bank, and that the debate ought to be considered more impartially, as the negative was neither more safe, certain, nor conformable to our duty than the other side of the question. after all, the proof of the affirmative imposed a sufficient burden, as it is easier to raise objections than to remove them. would any one doubt that congress may lend money, that they may buy their debt in the market, or redeem their captives from algiers? yet no such power is expressly given, though it is irresistibly implied. if, therefore, some interpretation of the constitution must be indulged, by what rules is it to be governed? the great end of every association of persons or states is to effect the end of its institution. the matter in debate affords a good illustration: a corporation, as soon as it is created, has certain powers, or qualities, tacitly annexed to it, which tend to promote the end for which it was formed; such as, for example, its individuality, its power to sue and be sued, and the perpetual succession of persons. government is itself the highest kind of corporation; and from the instant of its formation, it has tacitly annexed to its being, various powers which the individuals who framed it did not separately possess, but which are essential to its effecting the purposes for which it was framed; to declare, in detail, every thing that government may do could not be performed, and has never been attempted. it would be endless, useless, and dangerous; exceptions of what it may not do are shorter and safer. congress may do what is necessary to the end for which the constitution was adopted, provided it is not repugnant to the natural rights of man, or to those which they have expressly reserved to themselves, or to the powers which are assigned to the states. this rule of interpretation seems to be safe, and not a very uncertain one, independently of the constitution itself. by that instrument certain powers are specially delegated, together with all powers necessary or proper to carry them into execution. that construction may be maintained to be a safe one which promotes the good of society, and the ends for which the government was adopted, without impairing the rights of any man, or the powers of any state. this, he said, was remarkably true of the bank; no man could have cause to complain of it; the bills would not be forced upon any one. it is of the first utility to trade. indeed, the intercourse from state to state can never be on a good footing without a bank, whose paper will circulate more extensively than that of any state bank. whether the power to regulate trade from state to state will involve that of regulating inland bills of exchange and bank paper, as the instruments of the trade, and incident to the power, he would not pause to examine. this is an injury and wrong which violates the right of another. as the bank is founded on the free choice of those who make use of it, and is highly useful to the people and to government, a liberal construction is natural and safe. this circumstance creates a presumption in favor of its conformity to the constitution. this presumption is enforced by the necessity of a bank to other governments. the most orderly governments in europe have banks. they are considered as indispensably necessary; these examples are not to be supposed to have been unnoticed. we are to pay the interest of our debt in thirteen places. is it possible to transport the revenue from one end of the continent to the other? nay, a week before the quarter's interest becomes due, transfers will be made which will require double the sum in boston which was expected. to guard against this danger, an extra sum must be deposited at the different loan offices. this extra sum is not to be had; our revenue is barely equal to the interest due. this imposes an absolute necessity upon the government to make use of a bank. the answer is, that the state banks will supply this aid. this is risking a good deal to the argument against the bank; for will they admit the necessity, and yet deny to the government the lawful and only adequate means for providing for it? ten of the states have no banks; those who have may abolish theirs, and suffer their charters to expire. but the state banks are insufficient to the purpose; their paper has not a sufficient circulation; of course their capitals are small. congress is allowed to have complete legislative power over its own finances; and yet without the courtesy of the states it cannot be exercised. this seems to be inconsistent. if a war should suddenly break out, how is congress to provide for it? perhaps congress would not be sitting; great expenses would be incurred; and they must be instantly provided for. how is this to be done? by taxes? and will the enemy wait till they can be collected? by loans at home? our citizens would employ their money in war speculations, and they are not individually in a condition to lend a sufficient sum in specie. or shall we send across the sea for loans? the dispute between england and spain furnishes an example; the aid of their banks for several millions was prompt and effectual. or, will you say that congress might issue paper money? that power, ruinous and fallacious as it is, is deduced from implication, for it is not expressly given. a bank only can afford the necessary aid in time of sudden emergency. if we have not the power to establish it, our social compact is incomplete, we want the means of self-preservation. i shall, perhaps, be told that necessity is the tyrant's plea. i answer that it is a miserable one when it is urged to palliate the violation of private right. who suffers by this use of our authority? not the states, for they are not warranted to establish a national bank; not individuals, for they will be assisted in trade, and defended from danger by it. having endeavored to enforce his argument, by noticing the uses of banks to trade, to revenue, to credit, and, in cases of exigency, he adverted to the authority of our own precedents. our right to govern the western territory is not disputed. it is a power which no state can exercise; it must be exercised, and therefore it resides in congress. but how does congress get this power? it is not expressly given in the constitution, but is derived either from the nature of the case, or by implication from the power to regulate the property of the united states. if the power flows from the nature and necessity of the case, it may be demanded, is the renot equal authority for the bank? if it is derived from the power of congress to regulate the territory and other property of the united states, and to make all needful rules and regulations concerning it, and for the disposal of it, a strict construction would restrain congress merely to the management and disposal of property, and of its own property; yet it is plain that more is intended. congress has accordingly made rules, not only for governing its own property, but the property of the persons residing there. it has made rules which have no relation to property at all--for punishing crimes. in short, it exercises all power in that territory. nay, it has exercised this very power of creating a corporation. the government of that territory is a corporation; and who will deny that congress may lawfully establish a bank beyond the ohio? it is fair to reason by analogy from a power which is unquestionable, to one which is the subject of debate. he then asked, whether it appeared, on this view of the subject, that the establishment of a national bank would be a violent misinterpretation of the constitution? he did not contend for an arbitrary, unlimited discretion in the government to do every thing. he took occasion to protest against such a misconception of his argument. he had noticed the great marks by which the construction of the constitution, he conceived, must be guided and limited; and these, if not absolutely certain, were very far from being arbitrary or unsafe. it is for the house, to judge whether the construction which denies the power of congress is more definite and safe. in proving that congress may exercise powers which are not expressly granted by the constitution, he had endeavored to establish such rules of interpretation, and had illustrated his ideas by such observations as would anticipate, in a considerable degree, the application of his principles to the point in question. before he proceeded to the construction of the clauses of the constitution which apply to the argument, lie observed that it would be proper to notice the qualities of a corporation, in order to take a more exact view of the controversy. he adverted to the individuality and the perpetuity of a corporation, and that the property of the individuals should not be liable for the debts of the bank or company. these qualities are not more useful to the corporation than conformable to reason; but government, it is said, cannot create these qualities. this is the marrow of the argument; for congress may set up a bank of its own, to be managed as public property, to issue notes which shall be received in all payments at the treasury, which shall be exchangeable into specie on demand, and which it shall be death to counterfeit. such a bank would be less safe and useful than one under the direction of private persons; yet the power to establish it is indisputable. if congress has the authority to do this business badly, the question returns, whether the powers of a corporation, which are essential to its being well done, may be annexed as incident to it. the bank of new york is not a corporation, yet its notes have credit. congress may agree with that bank, or with a company of merchants, to take their notes, and to cause all payments to pass through their coffers. every thing that government requires, and the bank will perform, may be lawfully done without giving them corporate powers; but to do this well, safely, and extensively, those powers are indispensable. this seems to bring the debate within a very narrow compass. this led him to consider whether the corporate powers are incidental to those which congress may exercise by the constitution. he entered into a discussion of the construction of that clause which empowers congress to regulate the territory and other property of the united states. the united states may hold property; may dispose of it; they may hold it in partnership; they may regulate the terms of the partnership. one condition may be, that the common stock only shall be liable for the debts of the partnership, and that any purchaser of a share shall become a partner. these are the chief qualities of a corporation. it seems that congress, having power to make all needful rules and regulations for the property of the united states, may establish a corporation to manage it: without which we have seen that the regulations cannot be either safe or useful; the united states will be the proprietor of one-tenth of the bank stock. congress may exercise exclusive legislation in all cases whatsoever over the ten miles square, and the places ceded by the states for arsenals, light-houses, docks, &c. of course it may establish a bank in those places with corporate powers. the bill has not restrained the bank to this city; and if it had, the dispute would lose a part of its solemnity. if, instead of principles, it concerns only places, what objection is there to the constitutional authority of congress to fix the bank at sandy hook, or reedy island, where we have light-houses, and a right of exclusive legislation? a bank established there, or in the district located by law on the potomac for the seat of government, could send its paper all over the union; it is true that the places are not the most proper for a bank; but the authority to establish it in them overthrows the argument which is deduced from the definite nature of the powers vested in congress, and the dangerous tendency of the proposed construction of them. the preamble of the constitution warrants this remark, that a bank is not repugnant to the spirit and essential objects of that instrument. he then considered the power to borrow money. he said it was natural to understand that authority as it was actually exercised in europe; which is, to borrow of the bank. he observed, the power to borrow was of narrow use without the institution of a bank; and in the most dangerous crisis of affairs would be a dead letter. after noticing the power to lay and collect taxes, he adverted to the sweeping clause, as it is usually called, which empowers congress to exercise all powers necessary and proper to carry the enumerated powers into execution. he did not pretend that it gives any new powers; but it establishes the doctrine of implied powers. he then demanded whether the power to incorporate a bank is not fairly relative, and a necessary incident to the entire powers to regulate trade and revenue, and to provide for the public credit and defence. he entered into a particular answer to several objections, and after recapitulating his argument, he concluded with observing that we had felt the disadvantages of the confederation. we adopted the constitution, expecting to place the national affairs under a federal head; this is a power which congress can only exercise. we may reason away the whole constitution. all nations have their times of adversity and danger; the neglect of providing against them in season may be the cause of ruining the country. friday, february . _bank of the united states._ the house resumed the consideration of the bill for incorporating the bank of the united states. the question being on the passage of the bill, mr. sedgwick said, he would endeavor not to fatigue the patience of the house in the observations he should make on the important subject now under consideration. without entering into the discussion on a scale so extensive as had been indulged by some gentlemen, he would dwell only on a few important principles, and such consequences as were conclusively deducible from them, which had made a strong impression on his own mind. the opposition to the bill had called in question the constitutional powers of congress to establish the proposed corporation, and the utility of banks, neither of which till within a few days did he suppose was doubted by any intelligent man in america; and had charged the present system with holding out unequal terms against the government to those who should subscribe to the proposed stock. with regard to the question of constitutionality, much had been said which, in his opinion, had not an intimate relation to the subject now before the house. we have with great earnestness been warned of the danger of grasping power by construction and implication; and this warning has been given in very animated language by the gentleman from virginia (mr. madison.) i do not wish to deprive that member of the honor of consistency; but i well remember the time when the energy of his reasoning impressed on the minds of the majority of this house a conviction that the power of removal from office, holden at pleasure, was, by construction and implication, vested by the constitution in the president; for there could be no pretence that it is expressly granted to him. he would only observe, in answer to every thing which had been said of the danger of extending construction and implication, that the whole business of legislation was a practical construction of the powers of the legislature; and that probably no instrument for the delegation of power could be drawn with such precision and accuracy as to leave nothing to necessary implication. that all the different legislatures in the united states had, and this, in his opinion, indispensably must construe the powers which had been granted to them, and they must assume such auxiliary powers as are necessarily implied in those which are expressly granted. in doing which, it was no doubt their duty to be careful not to exceed those limits to which it was intended they should be restricted. by any other limitation the government would be so shackled that it would be incapable of producing any of the effects which were intended by its institution. he observed, that on almost all the great and important measures which come under the deliberation of congress there were immense difficulties to be surmounted. if we attempt, said he, to proceed in one direction, our ears are assailed with the exclamation of "the constitution is in danger!" if we attempt to attain our objects by pursuing a different course, we are told the pass is guarded by the stern spirit of democracy. did i concur with gentlemen in opinion on this subject, i should think it my duty to go home to my constituents, and honestly declare to them that by their jealousy of power they had so restrained the operations of the government that we had not the means of effecting any of the great purposes for which the constitution was designed, without attempting, what perhaps would be found impracticable, to fix by general rules the nice point within which congress would be authorized to assume powers by construction and implication, and beyond which they may be justly considered as usurpers. he wished gentlemen to reflect what effect a single principle, universally acknowledged, would have in determining the question now under consideration. it is universally agreed that wherever a power is delegated for express purposes, all the known and usual means for the attainment of the objects expressed are conceded also. that to decide what influence this acknowledged principle would have on the subject before the house, it would be necessary to reflect on the powers with which congress are expressly invested. he then repeated that congress was authorized to lay and collect taxes, to borrow money on the credit of the united states, to raise and support armies, provide and maintain navies, to regulate foreign and domestic trade, and to make all laws necessary and proper to carry these and the other enumerated powers into effect. they were, in fine, intrusted with the exercise of all those powers which the people of america thought necessary to secure their fame and happiness against the attacks of internal violence and external invasion; and in the exercise of those powers, the legislature was authorized, agreeably to the principle which he had mentioned, to employ all the known and usual means necessary and proper to effectuate the ends which are expressed. it might be of use to determine with precision what was the meaning of the words _necessary_ and _proper_--they did not restrict the power of the legislature to enacting such laws only as are indispensable. such a construction would be infinitely too narrow and limited; and, to apply the meaning strictly, it would prove, perhaps, that all the laws which had been passed were unconstitutional; for few, if any of them, could be proved indispensable to the existence of the government. the conduct of congress had a construction on those words more rational and consistent with common sense and the purposes for which the government was instituted; which he conceived to be that the laws should be established on such principles, and such an agency in the known and usual means employed in the execution of them, as to effect the ends expressed in the constitution with the greatest possible degree of public utility. if banks were among the known and usual means to effectuate or facilitate the ends which had been mentioned, to enable the government, with the greatest ease and least burden to the people, to collect taxes, borrow money, regulate commerce, raise and support armies, provide and maintain fleets, he thought the argument irrefragable and conclusive to prove the constitutionality of the bill. pursuing further the same idea, he asked for what purposes were banks instituted and patronized by governments which were unrestricted by constitutional limitations? were they not employed as the means and the most useful engines to facilitate the collection of taxes, borrowing money, and the other enumerated powers? besides, he said, it was to be observed that the constitution had expressly declared the ends of legislation; but in almost every instance had left the means to the honest and sober discretion of the legislature. from the nature of things this must ever be the case; for otherwise the constitution must contain not only all the necessary laws under the existing circumstances of the community, but also a code so extensive as to adapt itself to all future possible contingencies. by our constitution, congress has not only the power to lay and collect taxes, but to do every thing subordinate to that end; the objects, the means, the instruments, and the purposes, are left to the honest and sober discretion of the legislature. the power of borrowing money was expressly granted; but all the known and usual means to that end were left in silence. the same observations might with truth be made respecting the other delegated powers. the great ends to be obtained as means to effectuate the ultimate end--the public good and general welfare--are capable, under general terms, of constitutional specification; but the subordinate means are so numerous, and capable of such infinite variation, as to render an enumeration impracticable, and must therefore be left to construction and necessary implication. he said, on this ground, he was willing to leave the general argument; it was simple, intelligible, and he hoped would be thought conclusive. he said the constitutionality had been attacked from another quarter. it was said, we could not give commercial advantages to one port above another. the constitutional provision which had been quoted was undoubtedly intended to prevent a partial regulation of commerce; if extended to the case under consideration, it would much more strongly prove that congress ought not to reside in any commercial city; for he verily believed that the commercial advantages of philadelphia were incomparably greater from that residence than they could be supposed from the institution of a national bank. indeed, it was his opinion that, considering that this city had a bank, the capital of which was adequate to all her commercial exigencies; that she could enlarge that capital as her necessity should require; and that her bank will, if this bill should be rejected, receive the benefit of national operations, the measure will not advance her individual interest. with regard to the utility of banks, he observed that he would not attempt to display a knowledge of the subject by repeating all he had read and heard in relation to it, nor fatigue the house by a detail of his own reflections and reasoning upon it; the causes were unnecessary to be explained; the effects had been such in all countries where banks had been instituted, as to produce a unanimous opinion that they were alike useful for all the great purposes of government, and to promote the general happiness of the people. nor was our own experience wanting to the same purpose. at a time when our public resources were almost annihilated, our credit prostrate, our government imbecile, and its patronage inconsiderable, a bank of small capital was among the most operative causes which produced that first dawn that ultimately terminated in meridian splendor by the establishment of peace, independence, and freedom. there were two circumstances which he would take the liberty to mention, which would render banks of more importance in this country than in any other country where they are at present in use: the first, the commercial enterprise of our merchants compared with the smallness of their capitals, which, as we had no large manufacturing capitals, whereby the precious metals could be retained in circulation, would frequently, by their exportation, greatly distress the people; the other originated from a measure of the government. congress, from a laudable intention of accommodating their constituents, instituted treasuries in all the states; in some of these there would be, in the ordinary course of events, a deficiency, and in others a redundancy. to keep them in equilibrium by the transportation of the precious metals, or by the purchase of bills in the market, would be not only inconvenient and expensive, but would keep out of circulation a considerable part of the medium of the country. gentlemen had been pleased to consider the proposed terms as giving an undue advantage to the stockholders. he would leave this part of the subject to gentlemen who better understood it; only observing, that as government must rely principally on merchants to obtain the proposed stock, it would be necessary to afford to them sufficient motives to withdraw from their commercial pursuits a part of their capitals. he would attempt an answer to some of those desultory objections which had been made, and in doing this, he would omit to answer such as had been, in his opinion, already refuted. he observed, that it had been said that granting charters of incorporation was a high prerogative of government. he supposed it was not intended that it was, in the nature of things, too transcendent a power to be exercised by a national government, but that the exercise of it should only be in consequence of express delegation. let this objection be compared with the conduct of congress on another subject, in all respects at least as important. there is not, by the constitution, any power expressly delegated to mortgage our revenues, and yet, without any question being made on the constitutionality of the measure, we have mortgaged them to an immense amount. from whence, he asked, do we acquire the authority to exercise this power? not from express grants, but being empowered to borrow money on the credit of the united states, we have very properly considered the pledging funds as among the known and usual means necessary and proper to be employed for the attainment of the end expressly delegated. it has been said that the bill authorized the stockholders to purchase real estate. he considered the provision in the bill in that regard, not a grant, but a limitation of power. any man, or body of men, might, by the existing laws, purchase, in their own private capacities, real estate to any amount. this right was limited as it respected the proposed corporation. it is said there are banks already, and therefore the proposed incorporation is unnecessary. to this he answered, that if the government should agree to receive all its demands in the paper of the existing banks, it would give to them every advantage which, in the opinion of gentlemen, renders the present system objectionable, without stipulating for any equivalent to the government. but are, he asked, gentlemen serious in these observations? do they believe the capitals of those banks adequate to the exigencies of the nation? do they believe that those banks possess any powers by which they can give a projectile force to their paper, so as to extend its circulation throughout the united states? or do they really wish to have the government repose itself on institutions with which they have no intimate connection, and over which they have no control? mr. s. concluded by observing he was very confident a majority of the house could never be induced to believe that it was the intention of the constitution to deprive the legislature of one of the most important and necessary means of executing the powers expressly delegated. mr. lawrence.--the advocates of this measure stand in an unfortunate situation; for being those who in general advocate national measures, they are charged with designs to extend the powers of the government unduly. he, however, consoled himself with a conscious attachment to the constitution, and with the reflection that their conduct received the approbation of their constituents. if the present be contrasted with the former circumstances of this country, he doubted not the measures of this government would continue to receive the approbation of the people of the united states. the silence of the people on the subject now before the house is strongly presumptive that the measure of the bank is not considered by them as unconstitutional. he then endeavored to show the constitutionality of the bank system. it must be conceded that there is nothing in the constitution that is expressly against it, and therefore we ought not to deduce a prohibition by construction; he adverted to the amendment proposed by congress to the constitution, which says, "powers not delegated are retained;" here, said he, to prove that the bank is unconstitutional, the constructive interpretation so much objected against is recurred to. the great objects of this government are contained in the context of the constitution. he recapitulated those objects, and inferred that every power necessary to secure these must necessarily follow; for as to the great objects for which this government was instituted, it is as full and complete in all its parts as any system that could be devised; a full, uncontrollable power to regulate the fiscal concerns of this union, is a primary consideration in this government, and from hence it clearly follows that it must possess the power to make every possible arrangement conducive to that great object. he then adverted to the late confederation, and pointed out its defects and incompetency; and hence the old congress called on the states to enact certain laws which they had not power to enact; from hence he inferred, that as the late confederation could not pass those laws, and to capacitate the government of the united states, and form a more perfect union, the constitution under which we now act was formed. to suppose that this government does not possess the powers for which the constitution was adopted, involves the grossest absurdity. the deviation from charters, and the infringement of parchment rights, which had been justified on the principle of necessity by the gentleman from virginia, (mr. madison,) he said had been made on different principles from those now mentioned; the necessity, he contended, did not at the time exist; the old congress exercised the power, as they thought, by a fair construction of the confederation. on constructions, he observed, it was to be lamented that they should ever be necessary; but they had been made; he instanced the power of removability, which had been an act of the three branches, and has not been complained of. it was at least as important a one as the present. but the construction now proposed, he contended, was an easy and natural construction. recurring to the collection law, he observed, that it was by construction that the receipts are ordered to be made in gold and silver. with respect to creating a mass of capital, he supposed just and upright national measures would create a will to form this capital. adverting to the idea that congress has not the power to establish companies with exclusive privileges, he observed, that by the amendments proposed by new hampshire, massachusetts, and new york, it plainly appears that these states considered that congress does possess the power to establish such companies. the constitution vests congress with power to dispose of certain property in lands, and to make all useful rules and regulations for that purpose; can its power be less over one species of its own property than over another? with respect to giving preference to one state over another, he observed, that ten years hence the seat of government is to be on the potomac, and wherever the government is finally settled, the place will enjoy superior advantages; but still the government must go thither, and the places not enjoying those advantages must be satisfied. it is said we must not pass a problematical bill, which is liable to a supervision by the judges of the supreme court; but he conceived there was no force in this, as those judges are invested by the constitution with a power to pass their judgment on all laws that may be passed. it is said that this law may interfere with the state governments; but this may or may not be the case; and in all interference of the kind the particular interest of a state must give way to the general interest. with respect to the corporation possessing the power of passing laws, this, he observed, is a power incidental to all corporations; and in the instance of the western territory, congress have exercised the power of instituting corporations or bodies politic, to the greatest possible extent. he defended the right of congress to purchase and possess property, and quoted a passage in the constitution to show that they possess this right. he then touched on the expediency of banks, and of that proposed in particular. the advantages generally derived from these institutions, he believed, applied peculiarly to this country. he noticed the objection from banks banishing the specie; he said the surplus only would be sent out of the country; but is it given away? no, sir, it is sent off for articles which are wanted, and which will enrich the country. with respect to a run on the bank, he mentioned the circumstances under which those runs on the british banks, which had been noticed, took place; and showed there was no parallel that would probably ever take place in this country. for several particulars he showed that the objection which arose from the united states not having a good bargain by the system was not well founded. he then mentioned the peculiar advantages which the united states will enjoy over common subscribers. the objection from banks being already established in the several states he obviated by stating the mischiefs which might arise from an ignorance of the situation of those banks; and concluded by some remarks on the inexpediency of the general government having recourse to institutions of merely a local nature. mr. jackson said, that having been the person who brought forward the constitutional objection against the bill, he thought himself bound to notice the answers which had been offered to that objection. newspaper authorities, said he, have been alluded to, and their silence on the subject considered as indicating the approbation of the people. he would meet the gentlemen on that ground; and, though he did not consider newspapers as an authority to be depended on, yet if opinions through that channel were to be regarded, he would refer the gentlemen to those of this city; the expediency and constitutionality of the bill have been called in question by the newspapers of this city. the latitude contended for in constructing the constitution on this occasion he reprobated very fully. if the sweeping clause, as it is called, extends to vesting congress with such powers, and necessary and proper means are an indispensable implication in the sense advanced by the advocates of the bill, we shall soon be in possession of all possible powers, and the charter under which we sit will be nothing but a name. this bill will essentially interfere with the rights of the separate states, for it is not denied that they possess the power of instituting banks; but the proposed corporation will eclipse the bank of north america, and contravene the interests of the individuals concerned in it. he then noticed the several arguments drawn from the doctrine of implication; the right to incorporate a national bank has been adduced from the power to raise armies; but he presumed it would not be contended that this is a bill to provide for the national defence. nor could such a power, in his opinion, be derived from the right to borrow money. it has been asked what the united states could do with the surplus of their revenue without the convenience of a bank in which to deposit it with advantage? for his part, though he wished to anticipate pleasing occurrences, he did not look forward to the time when the general government would have this superabundance at its disposal. the right of congress to purchase and hold lands has been urged to prove that they can transfer this power; but the general government is expressly restricted in the exercise of this power; the consent of the particular state to the purchase for particular purposes only is requisite; these purposes are designated, such as building light-houses, erecting arsenals, &c. it has been said that banks may exist without a charter; but that this incorporation is necessary in order that it may have a hold on the government. mr. j. strongly reprobated this idea. he was astonished to hear such a declaration, and hoped that such ideas would prevent a majority of the house from passing a bill that would thus establish a perpetual monopoly; we have, said he, i believe, a perpetual debt; i hope we shall not have a perpetual corporation. what was it drove our forefathers to this country? was it not the ecclesiastical corporations and perpetual monopolies of england and scotland? shall we suffer the same evils to exist in this country instead of taking every possible method to encourage the increase of emigrants to settle among us? for if we establish the precedent now before us, there is no saying where it will stop. the power to regulate trade is said to involve this as a necessary means; but the powers consequent on this express power are specified, such as regulating light-houses, ships, harbors, &c. it has been said that congress has borrowed money; this shows that there is no necessity of instituting any new bank, those already established having been found sufficient for the purpose. he denied the right of congress to establish banks at the permanent seat of government, or on those sandheaps mentioned yesterday; for if they should, they could not force the circulation of their paper one inch beyond the limits of those places. but it is said, if congress can establish banks in those situations, the question becomes a question of place, and not of principle; from hence it is inferred that the power may be exercised in any other part of the united states. this appeared to him to involve a very dangerous construction of the powers vested in the general government. adverting to the powers of congress in respect to the finances of the union, he observed that those powers did not warrant the adoption of whatever measures they thought proper. the constitution has restricted the exercise of those fiscal powers; congress cannot lay a poll tax, nor impose duties on exports; yet these undoubtedly relate to the finances. the power exercised in respect to the western territory, he observed, had reference to property already belonging to the united states; it does not refer to property to be purchased, nor does it authorize the purchase of any additional property; besides, the powers are express and definite, and the exercise of them in making needful rules and regulations in the government of that territory does not interfere with the rights of any of the respective states. mr. j. denied the necessity of the proposed institution; and noticing the observation of mr. ames, that it was dangerous on matters of importance not to give an opinion, observed that be could conceive of no danger that would result from postponing that construction of the constitution now contended for to some future congress, who, when the necessity of a banking institution shall be apparent, will be as competent to the decision as the present house. alluding to the frequent representations of the flourishing condition of the country, he inferred that this shows the necessity of the proposed institution does not exist at the present time; why, then, should we be anticipating for future generations? state banks he considered preferable to a national bank, as counterfeits can be detected in the states; but if you establish a national bank, the checks will be found only in the city of philadelphia or conococheague. he passed a eulogium on the bank of pennsylvania; the stockholders, said he, are not speculators; they have the solid coin deposited in their vaults. he adverted to the preamble and context of the constitution, and asserted that this context is to be interpreted by the general powers contained in the instrument. noticing the advantages which it had been said would accrue to the united states from the bank, he asked, is the united states going to commence stockjobbing? the "general welfare" are the two words that are to involve and justify the assumption of every power. but what is this general welfare? it is the welfare of philadelphia, new york, and boston; for as to the states of georgia and new hampshire, they may as well be out of the union for any advantages they will receive from the institution. he reprobated the idea of the united states deriving any emolument from the bank, and more especially he reprobated the influence which it was designed the government should enjoy by it. he said the banks of venice and amsterdam were founded on different principles. in the famous bank of venice, though the government holds no shares, yet it has at command five millions of ducats; but the united states were to be immediately concerned in theirs, and become stockholders. the bank of amsterdam was under the entire direction of the burgomasters, who alone had the power of making by-laws for its regulation. this power, by the bill, was given up by government, very improperly he thought, and was to be exercised by the stock-jobbers. the french bank, he added, was first established upon proper principles and flourished, but afterwards became a royal bank; much paper was introduced, which destroyed the establishment, and was near oversetting the government. the facility of borrowing he deprecated; it will involve the union in irretrievable debts; the facility of borrowing is but another name for anticipation, which will in its effects deprive the government of the power to control its revenues; they will be mortgaged to the creditors of the government. let us beware of following the example of great britain in this respect. he said, undue advantages had been taken in precipitating the measure, and the reasonable proposition respecting the state debts is not admitted. this i consider as partial and unjust. a gentleman from virginia has well observed that we appear to be divided by a geographical line; not a gentleman scarcely to the eastward of a certain line is opposed to the bank, and where is the gentleman to the southward that is for it? this ideal line will have a tendency to establish a real difference. he added a few more observations, and concluded by urging a postponement, if any regard was to be had to the tranquillity of the union. mr. boudinot said he meant to confine himself to two or three great points on which the whole argument appeared to him to rest. he considered the objections to the bill as pointed against its constitutionality and its expediency. it was essential, he observed, that every member should be satisfied, as far as possible, of the first; for however expedient it might be, if it was clearly unconstitutional, the bill should never receive the sanction of the representatives of the people. he would, in a great measure, refer its expediency, if constitutional, to the experience of every gentleman of the house, as the most satisfactory proof on that head, and he conceived there was no need of much argument in support of its decision. the first question then was, is congress vested with a power to grant the privileges contained in the bill? this is denied, and ought to be proved. in order to show in what manner this subject had struck his mind, he first laid down these principles: whatever power is exercised by congress must be drawn from the constitution; either from the express words or apparent meaning, or from a necessary implication arising from the obvious intent of the framers. that whatever powers (vested heretofore in any individual state) not granted by this instrument, are still in the people of such state, and cannot be exercised by congress. that whatever implication destroys the principle of the constitution ought to be rejected. that in construing an instrument, the different parts ought to be so expounded as to give meaning to every part which will admit of it. having stated these preliminaries, mr. b. proceeded to inquire what were the powers attempted to be exercised by this bill? for, until the powers were known, the question of constitutionality could not be determined. by it congress was about to exercise the power of incorporating certain individuals, thereby establishing a banking company for successfully conducting the finances of the nation. the next inquiry is, what rights will this company enjoy in this new character, that they do not enjoy independent of it? every individual citizen had an undoubted right to purchase and hold property, both real and personal, to any amount whatever; to dispose of this property to whom and on what terms he pleased; to lend his money on legal interest to any person willing to take the same; and indeed to exercise every power over his property that was contained in the bill. individual citizens, then, having these powers, might also associate together in company or copartnership, and jointly exercising the same rights, might hold lands in joint tenancy, or as tenants in common, to any amount whatever; might put any sum of money into joint stock; might issue their notes to any amount; might make by-laws or articles of copartnership for their own government; and, finally, might set up a bank to any amount, however great, and no authority in the government could legally interfere with the exercise of these rights. the great difference between this private association of citizens, in their individual capacities, and the company to be created by this bill, and which is held up in so dangerous a light, is, that the one exposes the company to the necessity of using each individual's name in all their transactions; suits must be brought in all their names; deeds must be taken and given in like manner; each one in his private estate is liable for the default of the rest; the death of a member dissolves the partnership as to him; and for want of a political existence the union may be dissolved by any part of its members, and of course many obvious inconveniences must be suffered merely of an official kind. by the bill these difficulties are to be removed by conveying three qualities to them. st. individuality, or constituting a number of citizens into one legal artificial body, capable by a fictitious name of exercising the rights of an individual. d. irresponsibility in their individual capacity, not being answerable beyond the joint capital. d. durability, or a political existence for a certain time, not to be affected by the natural death of its members. these are the whole of the powers exercised, and the rights conveyed. it is true these are convenient and advantageous to the company, but of trifling importance when considered as a right of power exercised by a national legislature for the benefit of the government. can it be of any importance to the state whether a number of its citizens are considered, in legal contemplation, as united in an individual capacity, or separately as so many individuals, especially if the public weal is thereby promoted? by their irresponsibility being known, every person dealing with them gives his tacit consent to the principle, and it becomes part of the contract. and by political duration their powers and abilities are limited, and their rights restricted, so as to prevent any danger that might arise from the exercise of their joint natural right, not only as to the amount of their capital, but as to the by-laws they may make for their government. a private bank could make contracts with the government, and the government with them, to all intents and purposes, as great and important as a public bank, would their capital admit of it; though they would not possess such qualities as to justify the confidence of government, by depending on them in a time of danger and necessity. this might put it in the power of any individuals to injure the community in its essential interests by withdrawing the capital when most needed. to prevent this, and many other inconveniences, it is necessary that a bank for the purposes of government should be a legally artificial body, possessing the three qualities above mentioned. mr. b. then took up the constitution, to see if this simple power was not fairly to be drawn by necessary implication from those vested by this instrument in the legislative authority of the united states. it sets out in the preamble with declaring the general purposes for which it was formed: "the insurance of domestic tranquillity, provision for the common defence, and promotion of the general welfare." these are the prominent features of this instrument, and are confirmed and enlarged by the specific grants in the body of it, where the principles on which the legislature should rest after their proceedings are more fully laid down, and the division of power to be exercised by the general and particular governments distinctly marked out. by the th section, congress has power "to levy taxes, pay debts, provide for the common defence and general welfare, declare war, raise and support armies, provide for and maintain a navy;" and as the means to accomplish these important ends, "to borrow money," and finally, "to make all laws necessary and proper for carrying into execution the foregoing powers." let us, then, inquire, is the constituting a public bank necessary to these important and essential ends of government? if so, the right to exercise the power must be in the supreme legislature. he argued that the power was not contained in express words, but that it was necessarily deduced by the strongest and most decisive implication, because he contended that it was a necessary means to attain a necessary end. necessary implication had led congress under the power to lay and collect impost and taxes, to establish officers for the collection, to inflict penalties against those who should defraud the revenue, to oblige vessels to enter at one port and deliver in another; subjected them to various ceremonies in their proceedings, for which the owners were made to pay; and he conceived that it was not so great an exertion of power by implication to incorporate a company for the purpose of a bank. he also deduced the right from the power of paying debts, raising armies, providing for the general welfare and common defence, for which they were to borrow money. all these necessarily include the right of using every proper and necessary means to accomplish these necessary ends. it is certain, he said, that money must be raised from the people. this could not be done in sums sufficient for the exigencies of government in a country where the precious metals were as scarce as in this. the people in general are poor when compared with european nations; they have a wilderness to subdue and cultivate; taxes must be laid with prudence, and collected with discretion; the anticipation of the revenues, therefore, by borrowing money, becomes absolutely necessary. if so, then as the constitution had not specified the manner of borrowing, or from whom the loan was to be obtained, the supreme legislature of the union were at liberty, it was their duty, to fix on the best mode of effecting the purposes of their appointment. for it was a sound principle, that when a general power is granted, and the means are not specified, they are left to the discretion of those in whom the trust is reposed, provided they do not adopt means expressly forbidden. the public defence, or general welfare, resting on the annual supplies from uncertain revenues, would expose the very existence of the community. it is the duty of those to whom the people have committed this power to prepare in time of peace for the necessary defence in a time of war. the united states are now happily in a state of peace; but it was impossible for any one to say how long it would continue. by prudent management it might be long preserved; but this prudence consisted in being always found in a state of preparation to defend our country. the constitution contemplates this very duty by authorizing congress to provide for the common defence by borrowing money. why borrow money? are not the annual revenues sufficient? it might be so, if nothing was to be attended to but internal wants; but the common defence and general welfare loudly call for that provision which will produce a constant guard on external enemies and internal insurrections. to this necessary end it becomes congress to provide that the necessary means may be always at hand, by being able to arm their citizens and provide their support while engaged in the defence of their common country. this can be done only by borrowing money, which is usually of citizens or foreigners; if of the first, it must be from individuals or from private banks: will it be prudent to trust to either? loans from individuals were attempted during the war, when patriotism produced a will in some lenders, and others were glad to get rid of a depreciating paper currency almost on any terms whatever. but even these loans, arising from this paper medium with which the market was glutted, were altogether insufficient; and by one change of circumstances every hope was precluded of being any way successful in procuring money from that source. the circumstances of individuals, too, in this country are such, when compared with the wants of a nation, as to render the source too vague and uncertain to rely upon; and it would be a most improvident execution of the powers granted for the express purpose of the common defence and general welfare. private banks are almost as inadequate to the object, and for reasons already given, were neither to be depended on for will or capital as to the supply for the principal wants of government. they are generally established for commercial purposes, and on capitals not always sufficient for them. if they should be prevailed upon at any time to attempt to supply the demands of a nation at war, it must be from a general combination of their whole stocks, to the destruction of the original designs of their several institutions. this ought not to be expected; for as far as it goes to the depression of the mercantile interests, so far it is injurious to the government; besides, a dependence upon such a combination would be impolitic, both from its slowness and uncertainty. the votes of a few individuals affected by local, selfish, or adverse politics, might endanger the whole people. such a dependence ought not to be attributed to the wise framers of the constitution, neither does the language warrant it. but foreign loans have been mentioned, as a proper source for this purpose. the imprudence of placing the common defence of a nation on the will of those who have no interest in its welfare is a good answer to this observation. would it be prudent to trust a foreigner, perhaps a rival, if not an enemy, with your supply of what has emphatically been called the sinews of war? would it not expose us to exorbitant demands, and often a refusal? many adventitious circumstances of a war, increasing demands from all quarters, scarcity of coin, and difficulty of communication, as well as the intrigues of courts, all loudly oppose the measure, as contrary to the spirit and meaning of a provision for the common defence and general welfare. the only resort then, he conceived, was by a timely provision to secure institutions at home from which loans might be obtained at all times on moderate terms, and to such amount as the necessity of the state might require. but gentlemen say that the constitution does not expressly warrant the establishment of such a corporation. if by _expressly_, express words are meant, it is agreed that there are no express words; and this is the case with most of the powers exercised by congress; for if the doctrine of necessary implication is rejected, he did not see what the supreme legislature of the union could do in that character. if this power is not clearly given in the constitution by necessary implication, then is a necessary end proposed and directed, while the common and usual necessary means to attain that end are refused, or at least not granted. mr. b. was firmly of opinion that a national bank was the necessary means, without which the end could not be obtained. theory proved it so in his opinion, and the experience of the union in a day of distress had fully confirmed the theory. the struggles of the friends of freedom during the late contest had nearly been rendered abortive for want of this aid. that danger which was then so hardly avoided became a solemn memento to this house to provide against a similar case of necessity. this was the time to do it with advantage, being in such profound peace. he had not heard any argument by which it was proved that individuals, private banks, or foreigners, could with safety and propriety be depended on as the efficient and necessary means for so important a purpose. although money was at present plentiful in europe, and might be borrowed on easy terms, it might not be so to-morrow, in case a war should break out, and our necessities become pressing. he again enumerated the harmless qualities with which it was proposed to vest the bank corporation, by the bill on the table, for the important purposes of the common defence and general welfare. gentlemen had not yet pointed out any danger arising to the community, neither did he think it possible that any could ever be mentioned equal to those of suffering the government to depend on individuals or private banks for loans in a day of distress. but it was said that this bill gave the corporation a right to hold real property in a state, which congress had no power to do. the terms of the bill are misapprehended; this is a right which has been already shown, attaches to the citizens individually, or in their associated capacity; the bill, therefore, does no more than to vest a number with an artificial single capacity under a fictitious name, and by that name to hold lands, make by-laws, &c.; all which they might have done before as citizens in a collective capacity. so far from giving a new power, their original individual rights are limited for the public safety as to the amount of their stock and the duration of their existence. mr. b. then proceeded to cite numerous instances of powers exercised by congress during the last two years, deduced under the constitution by necessary implication, to show the utter impossibility of carrying any one provision of that authority into execution for the benefit of the people without this reasonable latitude of construction. he also adverted to some instances of the like conduct under the former confederation. it had been urged that the new congress had no rights or powers but what had been vested in and given to them by the individual states, and therefore they could not accept a cession from great britain by the treaty of peace of the lands extending to the lake of the woods, because not before included in any individual state. every member was soon convinced of the absurdity of the argument, and by a necessary implication established the power of the confederated legislature. during the war the commander-in-chief gave a passport to a british officer to transmit clothing to the british prisoners at lancaster. he accordingly conveyed a very large quantity of british goods into pennsylvania for that purpose; which being directly against an express law of that state, they were seized and condemned by the proper magistrate. on a complaint to the legislature of the state, they referred the same to their judicial officers, upon whose report (that congress being vested with the power of declaring war, the right of giving safe passports to an enemy was necessarily implied, which, therefore, was duly exercised by their commander-in-chief, though no express power was given to him for that purpose) the legislature declared their law directing the condemnation of the goods void _ab initio_, and the judgment of condemnation had no effect. this was also the rule that governed this house with regard to the removability of officers by the president, and the authority given to a council to legislate for the western territory. in fine, he concluded, that it was universally understood that whenever a general power was given, especially to a supreme legislature, every necessary means to carry it into execution were necessarily included. this was the common sense of mankind, without which it would require a multitude of volumes to contain the original powers of an increasing government that must necessarily be changing its relative situation every year or two. if power was given to raise an army, the making provision for all the necessary supplies and incidental charges was included. if a navy was to be formed, the manning and supplying the warlike stores are necessarily included. if a power is given to borrow money, a right to mortgage or pledge the public property to secure the repayment is understood to be vested in the borrower. take up the present statute book, and every page will afford evidence of this doctrine. examine the law with regard to crimes and punishments; under the power of establishing courts, we have implied the power of punishing the stealing and falsifying the records, and ascertained the punishment of perjury, bribery, and extortion. under the power of regulating trade, we have accepted cessions of real estate, and built light-houses, piers, &c. all this is under the doctrine of necessary implication for the public good; and in cases not so strong as the present, and on the exercise of which no gentleman thought proper to start this objection. this construction appears so natural and necessary, that the good sense of every gentleman on the floor has hitherto led him to proceed on this principle ever since we began to legislate; what principle of the constitution does it destroy? it gives nothing that can affect the rights of any state or citizen. indeed, it has been said that it is exercising a high act of power; he thought it had been shown to be rather of the inferior kind; but allow the position, and who so proper as the legislature of the whole union to exercise such a power for the general welfare? it has also been said that this power is a mere conveniency for the purpose of fiscal transactions, but not necessary to attain the ends proposed in the constitution. this is denied, and at best is mere matter of opinion, and must be left to the discretion of the legislature to determine. mr. b. said, he should now conclude what he had to say, had not an honorable gentleman (mr. jackson) brought forward the observations of the author of the _federalist_, vol. , p. , , , to show a different contemporaneous exposition of the constitution, and charged the author, who he alleged was said to be also the author of the present plan before the house, with a change of sentiment. as this gentleman is not here to speak for himself, he ought to have the next best chance by having what he then wrote candidly attended to, especially as gentlemen allow him to be a good authority. mr. b. read only part of the d page referred to by mr. jackson, in these words: "had the convention attempted a positive enumeration of the powers necessary and proper for carrying their other powers into effect, the attempt would have involved a complete digest of laws on every subject to which the constitution relates; accommodated, too, not only to the existing state of things, but to all the possible changes which futurity may produce; for in every new application of a general power, the particular powers which are the means of attaining the general power must always necessarily vary with that object, and be often properly varied whilst the object remains the same." how these sentiments can be said to be a different contemporaneous exposition must be left to the house to determine. mr. b. then begged the indulgence of the house to hear the same gentlemen when arguing expressly on that part of the constitution now under consideration; and then read pp. , , and , of the st vol. of the _federalist_, which are too long to be inserted. he declared that, in his opinion, it was impracticable to put together language in the same length that could more forcibly and pointedly elucidate and prove the construction contended for in support of the bill on the table. there remained yet but two objections, to answer which mr. b. would detain the house a little longer. the gentleman from georgia (mr. jackson) had charged the measure with establishing the commercial interests, to the great injury of the agricultural. if this was true he never would agree to it, for he considered the agricultural interests of america as its great and sure dependence. mr. b. confessed that so far from seeing these measures in this point of light, he could not bring his mind to comprehend how the commercial interests of a country could be promoted without greatly advancing the interests of agriculture. will the farmer have any temptation to labor, if the surplus of what he raises beyond his domestic consumption is to perish in his barn for want of a market? can a market be obtained without the merchant? if commerce flourishes, the merchants increase, and of course the demand for the produce of the land; but if the mercantile interests fail, there is none to export the surplus produced by agriculture. if the farmer should undertake to export his own produce, he could not give his whole attention to his affairs; or, if the merchant should attempt to raise the grain he wanted, he could not carry on his merchandise. the one interest depends on the other; a separation destroys both. but the incapacity of the bank to extend its influence to the extremes of the union has been argued from the gentleman never having seen a note of the present bank of north america in georgia; he therefore concludes that bank has never been of any service to her agricultural interests. mr. b. said that he drew very different conclusions from this fact. he supposed that by means of the bank the traders with georgia had been enabled to send her the precious metals, while the bank paper had answered their purposes nearer home, where it circulated with undoubted credit. he instanced a case of a philadelphia merchant, who was possessed of £ in gold, and £ credit at the bank; the merchant wanted £ worth of rice of a georgia planter, and the like value in flour of a pennsylvania farmer. when he purchased the one of the georgian, he could safely pay him the whole in gold, while he found the pennsylvanian would as readily receive the bank paper for his flour; but had there been no bank, he could have purchased but £ worth of each, and the georgia and pennsylvanian both would have gone without a market for the residue. in short, the whole union may be likened to the body and limbs; you cannot aid or comfort one but the other must be likewise benefited. he said it was, however, difficult and impracticable to show that every measure adopted by the government should have an effect perfectly equal over so extensive a country as that of the united states; it was sufficient if, upon the whole, the measures of government, taken all together, produced the desired equality. the last objection was, that by adopting this bill we exposed the measure to be considered and defeated by the judiciary of the united states, who might adjudge it to be contrary to the constitution, and therefore void; and not lend their aid to carry it into execution. this, he alleged, gave him no uneasiness. he was so far from controverting this right in the judiciary, that it was his boast and his confidence. it led him to greater decision on all subjects of a constitutional nature, when he reflected that if, from inattention, want of precision, or any other defect, he should do wrong, that there was a power in the government which could constitutionally prevent the operation of such a wrong measure from affecting his constituents. he was legislating for a nation, and for thousands unborn; and it was the glory of the constitution that there was a remedy even for the failures of the supreme legislature itself. upon the whole, then, he said, that on taking the power in question in every point of view, and giving the constitution the fullest consideration, under the advantage of having the objections placed in the strongest point of light by the great abilities of the gentlemen in the opposition, he was clearly in favor of the bill; as to its expediency, there could be little doubt in the minds of any gentleman; and unless more conclusive arguments could be adduced to show its unconstitutionality, he should in the end vote for passing the bill. saturday, february . _bank of the united states._ the house resumed the consideration of the bill for incorporating the bank of the united states. the question being on the passage of the bill, mr. smith observed, that he considered it his duty to offer the reasons which should influence him in giving his vote on this occasion. he had wished amendments to the bill, as some parts of it, he confessed, did not perfectly please him; but his wishes having been overruled, the question now is, whether the bill shall pass? though he came southward of the potomac, the principle of the bill met his approbation. it would be a deplorable thing if this government should enact a law subversive of the constitution, or that so enlightened a body as the senate of the united states should, by so great a majority as were in favor of this bill, pass a law so hostile to the liberties of this country, as the opposition to this measure have suggested the bank system to be; and it would be very extraordinary if an officer of this government who has produced a performance explanatory of the constitution, of such celebrity as to be resorted to as an authority, should be so inconsistent with himself as to propose a law entirely subversive of the principles laid down in his able defence of the constitution. he then adverted to the objection drawn from that article of the constitution, that no preference shall be given to one port over another. he showed that the clause was inserted for a particular purpose, and could not be cited as a rule not to be deviated from, as a preference was and must necessarily be given to one port over another. he produced numerous instances in point. in consequence of various clauses in the revenue laws, general regulations sometimes operate partially, and commercial arrangements, apparently unequal, produce the good of the community at large. in reference to construing the constitution, he observed, that the present moment, when the powers of the government were assailed from various quarters, he conceived the most improper to contract these powers. the right to construe the constitution he argued from the principles advanced by mr. madison, in the debate on the power of removability, and read sundry observations from _lloyd's register_, made by that gentleman, corroborative of this sentiment. those arguments, he conceived, applied very aptly to the present subject. matters of a fiscal nature necessarily devolve on the general government, and he urged that every power resulting from the acknowledged right of congress to control the finances of this country must be as necessarily implied as in the case of the power of removability. he then alluded to the expediency of a national bank. the secretary gave notice, in his first report, that this plan was in contemplation. nothing was ever read with greater avidity; and though it is now more than a year since this intimation was given, yet no objections have been offered against it either by the states or by individuals--even the state of north carolina has not mentioned it. [here mr. bloodworth (if the reporter did not misunderstand) informed mr. smith that the report had not been seen by the legislature of north carolina.] mr. smith said he was sorry for it--and then proceeded to notice some partial quotations, made by mr. jackson, from _dr. smith's wealth of nations_, against bank systems. he said, he could have wished the gentleman had been more copious in his quotations from that author; if he had, he would have found that that author has fully demonstrated their utility. he noticed the divisions of opinions on the subject of a national bank in the city of philadelphia. he supposed ideas of personal advantages induced these opposing sentiments. he, however, thought this subject should be taken up altogether on general principles; and even if its immediate influence should not extend to the extremes of the union, if the establishment promises a general preponderating advantage, local considerations must be considered in a secondary point of view. the principal inquiry is, will the institution facilitate the management of the finances? this, he thought, had been made apparent. this is the opinion of the secretary of the treasury, after due and mature consideration of the subject; and he certainly enjoys the best means of forming an opinion; he is at the head of the fiscal department, and deservedly enjoys the public confidence. very little has been offered to disprove his sentiments on this part of the question, and the inexpediency of the measure should be clearly proved before the plan is rejected; for an officer who deservedly enjoys the public confidence is entitled to the support of the legislature in those plans which are expedient and constitutional. mr. s. mentioned instances in which congress exercised power by implication, and observed, that this was necessary to the execution of the duties which devolve on the government by the constitution. the power to establish a national bank must reside in congress, for no individual state can exercise any such power. the right of no particular state is therefore infringed by the institution. it had repeatedly been said, that philadelphia would derive peculiar advantages from the bank of the united states, but, he said, if the present plan should fail, it was a question whether the stockholders of the bank of north america would not derive greater advantages from the necessity which, in that case, government would be under of resorting to them for loans. the institution, as before observed, is founded on general principles, and will undoubtedly, in its operations, prove of general utility. mr. stone said, if, upon questions like the present, he had given pain to members he regarded, they might be assured the pain was reciprocal. let us cherish mutual toleration. we might conceive that each pursued the system which he advocated from the purest motives. we differ in our ideas of government, and our sense of the sacredness of the written compact. we varied widely in our opinions of the direction of this government. the great lesson of experiment would show who is right; but we are influenced in our habits of thinking by our local situations, and, perhaps, the distinct interests of the states we represent. he observed, that upon the present occasion, the opinions respecting the constitution seem to be divided by a geographical line, dividing the continent. hence it might be inferred, that other considerations mixed with the question; and it had been insinuated that it was warped by the future seat of government. but other causes may be assigned for the diversity of sentiment--the people to the eastward began earliest in favor of liberty. they pursued freedom into anarchy--starting at the precipice of confusion, they are now vibrating far the other way. he said, that all our taxes are paid by the consumers of manufactures; those taxes are all bounties upon home manufactures. the people to the eastward are the manufacturers of this country; it was no wonder that they should endeavor to strengthen the hands of a government by which they are so peculiarly benefited. it is a fact that the greatest part of the continental debt has travelled eastward of the potomac. this law is to raise the value of the continental paper. here, then, is the strong impulse of immediate interest in favor of the bank. he took notice of the distinction made by the plan of the bill, between continental and state paper. the state paper, on account of partial payments of interest, still remained in the respective states. but this could not, by the present system, be subscribed; so that the southern states were deprived of the advantage that might have been given to the only paper they have. but if gentlemen charge us with defending the seat of government, let them remember that this betrays consciousness of an attack. if they believe that this scheme tends to break the faith of the union pledged to the potomac, it is no wonder they suppose we oppose it upon that ground. he would not have mentioned this subject, had it not been hinted at. but let the whole of it come forth; let gentlemen consult their own bosoms; let the public decide the truth of his observations. he hoped he should not be suspected of any bias. that so uniform had been his conduct upon all questions, turning upon principles similar to the present, that every member in the house, he believed, had conjectured rightly of the side he would take, before he had uttered a word upon the subject, when implication first raised its head in this house, he started from it as a serpent which was to sting and poison the constitution. he felt in unison with his country. the fears, the opinions, the jealousies of individuals and of states, had been explained by a gentleman from virginia, (mr. madison.) he should only remark, that all those who opposed the government dreaded this doctrine; those who advocated it, declared that it could not be resorted to; and all combined in opinion that it ought not to be tolerated. never did any country more completely unite in any sentiment than america in this, "that congress ought not to exercise, by implication, powers not granted by the constitution." and is it not strange? for the admission of this doctrine destroys the principle of our government at a blow; it at once breaks down every barrier which the federal constitution had raised against unlimited legislation. he said, that necessity was the most plausible pretext for breaking the spirit of the social compact, but the people of this country have anticipated that pretext. they have said to the ministers of this country, "we have given you what we think competent powers, but if experience proves them inadequate, we will enlarge them; but, in the mean time, dare not usurp those which we have reserved." it is agreed on all hands, that the power to incorporate the subscribers to a banking company, is not expressly granted, and although gentlemen have agreed that it is implied--that it is an incident, that it is a means for effectuating powers expressly granted, yet they are not agreed as to the particular power to which this is an incident. they admit, that the sweeping clause in the constitution confers no additional power. but if he understood the gentlemen, several of them were of opinion that all governments, instituted for certain ends, draw to them the means of execution as of common right. this doctrine would make ours but a short constitution. [here he read the preamble and then said:] here is your constitution! here is your bill of rights! do these gentlemen require any thing more respecting the powers of congress, than a description of the ends of government? and if, of right, they can carry these into effect, will they regard the means, though they be expressly pointed out? but i would ask if there is any power under heaven which could not be exercised within the extensive limits of this preamble? the convention might have stopped here; and there was no need, according to the doctrine of the gentleman, to point out any of the means for the ends mentioned in the preamble. that portion of the constitution which by all america has been thought so important, according to their logic, would become a dead letter; but the preamble, in fair construction, is a solemn compact, that the powers granted shall be made use of to the ends thereby specified. he then reprobated, in pointed terms, the latitude of the principles premised. he said the end of all government is the public good; and if the means were left to legislation, all written compacts were nugatory. he observed, that the sober discretion of the legislature, which, in the opinions of gentlemen, ought to be paramount, was the very thing intended to be curbed and restrained by our constitution. he then declared, that our form of government not only pointed out the ends of government, but specified the means of execution. he said, we may make war--this would draw to it the power of raising an army and navy, laying taxes, establishing a judiciary, &c. but the spirit of the constitution, in this respect, had been well explained by mr. madison, and he should not recapitulate. he said, a gentleman from south carolina (mr. smith) had remarked that all our laws proceeded upon the principle of expediency--that we were the judges of that expediency--as soon as we gave it as our opinion that a thing was expedient, it became constitutional. what then remains of your constitution, except its mode of organization? we may look into it to refresh our memories respecting the times, places, and manner of composing the government; that, as to the powers of congress, were he of that gentleman's opinion, he would never look into it again. gentlemen see the difficulties of their theories, and are obliged to confess that these incidental powers are not easily defined. they rest in the sober discretion of the legislature. one gentleman (mr. ames) has said, no implication ought to be made against the law of nature, against rights acquired, or against power pre-occupied by the states; that it is easier to restrain than to give competent powers of execution. now these notions are hostile to the main principle of our government, which is only a grant of particular portions of power, implying a negative to all others. it has been shown that the ends of government will include every thing. if gentlemen are allowed to range in their sober discretion for the means, it is plain that they have no limits. by the cabalistic word _incident_, your constitution is turned upside down, and instead of being a grant of particular powers, guarded by an implied negative to all others, it is made to imply all powers. but, strange to tell, america forgot to guard it by express negative provisions. is there any difference in effect between lodging general powers in a government, and permitting the exercise of them by subtle constructions? he said there was a difference. in the one case the people fairly gave up their liberty, and stood prepared; in the other, they were unexpectedly tricked out of their constitution. the preceding remarks showed how dangerous is the doctrine of implication, and upon what small data ingenuity can raise the most dangerous superstructure. he should now take a view of these precedents, in the former and present congress, which are relied on to justify the present measure. st. the bank of north america. here he stated the distressful and critical situation of america at the period of its establishment; he remarked, that it was at the time of the declension of the continental money. he showed that there were no powers in the confederation to which (even according to the reasoning of the other side) this power could be incidental, but what required the vote of nine states; that the ordinance passed by a vote of seven states, which showed that necessity alone gave birth to that measure. he showed the dissimilarity of the situations of the former and this congress, and the difference in their powers, and, consequently, in the dangers to be apprehended from the encroachment of either. d. the redemption of our prisoners at algiers. this comes within the power to regulate trade. if, said he, we are not capable of redeeming, by the best means in our power, our citizens, our trade may be entirely ruined; and hence, the law which would be made for their redemption would be necessary and proper. but, by the constitution, the executive may make treaties; these may be general, or for a particular object, and the legislature may effectuate them by grants of money. d. we have bought certificates, and not destroyed them. this, they say, is implied from the power of paying the debts. he asked if, before the purchase, the certificates were debts due from the united states? and demanded, if, by the purchase, they were divested of that quality? in my judgment, when a debt is fairly cancelled, it is as much like a payment as need be. th. we had no right, except by implication, to give a salary to the vice president. he had voted against the salary, and had been for a _per diem_ allowance, because he thought the vice president was viewed by the constitution only as the president of the senate. but this example fails most palpably, as congress, in the compensations, are not confined by the constitution either to a particular sum or mode of payment. th. congress have made corporations, and exercised complete legislation in the western territory. he said, to answer this case, nothing more was necessary than to read the clause in the constitution which gives to congress expressly the power to make all the rules and regulations for them. it seemed to him as if gentlemen were inverting the order of things, by making powers where there were none, and attempting to prove express grants to the implications. th. our regulations respecting freighters and owners, and between captains and seamen. he had not those regulations correctly in his memory, but he believed them proper and necessary regulations of commerce. th. it has been said we have exclusive jurisdiction in places belonging to congress, and within the ten miles square. we could erect a bank in any of those places; its influence would extend over the continent; the principle upon which we founded this power could not be confined to a particular time or a spot of land. gentlemen ridicule the idea that the exercise of a pervading influence and a general principle should be limited by any particular number of years, or be confined within a fort. he said, the power of exclusive legislation in those places was expressly granted, and, under its influence, the congress might exercise complete and exclusive legislation within those limits; that the power was confined to the places. but if the general powers of this constitution are to be governed by the same rules of construction, and we are to have no regard to place, it follows that congress can exercise exclusive legislation over this continent. he was astonished at this doctrine. it would be equally reasonable to say, that france, because within the limits of her own dominions, and over her own property, she exercised exclusive legislation, that hence she had a right to legislate for the world. th. the power of removal of officers by the president alone. he said, it was known he had opposed that doctrine. he left it to be defended by those who had voted for it. but he hoped mr. smith, of south carolina, and some other gentlemen, who had opposed it, would review the arguments they had used upon that occasion. he observed, after taking a view of these precedents on the danger of laying down improper principles in legislation, how eagerly men grasped at the slightest pretexts for exercise of power. he shuddered to think what a broad and commanding position this bank will form for further encroachments. a gentleman from massachusetts (mr. sedgwick) has said, that whenever a power is granted, all the known and usual means of execution are always implied. the idea had been properly examined by mr. giles, but he would ask, if incorporating the subscribers to a bank was the known and usual means of borrowing money, especially when the subscribers were not obliged to loan; or of collecting taxes, when no taxes were levied on the bank. but gentlemen tell us, that if we tie up the constitution too tightly, it will break; if we hamper it, we cannot stir; if we do not admit the doctrine, we cannot legislate at all. and with a kind of triumph, they say that implication is recognized by the constitution itself in the clause wherein we have power to make all laws, to carry, &c. he said, he was ready to meet the gentlemen upon this ground. this clause was intended to defeat those loose and proud principles of legislation which had been contended for. it was meant to reduce legislation to some rule. in fine, it confined the legislature to those means that were necessary and proper. he said, it would not be pretended that it was necessary and proper for the collection of taxes. indeed, one gentleman (mr. ames) had attempted to show that the payments in specie could not be made, if by chance a great quantity of debt suddenly accumulated in a particular place. but it might be remembered, that this necessity, if it arrived, was created by the legislature, and that would be strange reasoning which broke a good constitution to mend a bad law. no taxes are to be collected by this bill. it would not be necessary and proper as a means of borrowing money, because, first, we do not want to borrow money, and, if we did, this law, though it may be the probable, is not the necessary mean; for if it was the interest of the stockholders, they might, and he believed would, refuse to loan. he said, that the institution might be defended upon more plausible grounds, if the bank had been taxed; or if a condition to loan money to the public had been part of the plan. upon what ground, then, do gentlemen stand? they can only say, that they have implied a great and substantive power in congress, which gives to government, or to individuals, the influence of fifteen millions of dollars, irrevocably, for twenty years, with a power of making by-laws, &c., because there is a probability that this institution may be convenient and agreeable in the operations of government. he asked, upon parallel principles, what might congress not do? he said, that the gentleman from virginia, (mr. madison,) pursuing the doctrine into all the forms in which it might appear, had struck upon several cases which were very pointed--an incorporation of manufacturers with exclusive privileges; merchants with the same; a national religion. this a gentleman (mr. ames) has said was unfair and extravagant reasoning; and yet, in five minutes, the gentleman's own reasoning led him to ask, with warmth, if congress could not join stocks with a company to trade to nootka? and he condescended to doubt, if the privileges given to such a company might not be exclusive. he saw clearly, himself, that his theory led to the latter conclusion; for if expediency, if convenience, if facility, if fears of war, if preparations for events which might never happen, can justify an incorporation upon the present plan, the same suggestions, the same logic, will legalize incorporations with exclusive privileges. the deductions of the gentleman from virginia are sound and right, and cannot be fairly controverted. congress may then do any thing. nay, if the principles now advocated are right, it is the duty of the legislature of the union to make all laws; not only those that are necessary and proper to carry the powers of the government into effect, but all laws which are convenient, expedient, and beneficial to the united states. then where is your constitution! are we not now sitting, in our sober discretion, a general government, without the semblance of restraint? yes, said he, we have still a constitution, but where is it to be found? is it written? no. is it among the archives? no. where is it? it is found in the sober discretion of the legislature--it is registered in the brains of the majority! he proceeded. i say there is no necessity, there is no occasion, for this bank. the states will institute banks which will answer every purpose. but a distrust of the states is shown in every movement of congress--will not this implant distrust also in the states? will you gain by this contest? this scheme may give, and i am convinced will give, partial advantages to the states. in the fair administration of our government, no partial advantages can be given; but, by this bill, a few stockholders may institute banks in particular states, to their aggrandizement and the oppression of others. this bank will swallow up the state banks; it will raise in this country a moneyed interest at the devotion of government; it may bribe both states and individuals. he said, gentlemen asked who would be offended or hurt by this plan? have we heard any complaints against it? have the newspapers reprobated it? these questions had no influence on his mind. he said it was one of those sly and subtle movements which marched silently to its object; the vices of it were at first not palpable or obvious; but when the people saw a distinction of banks created--when they viewed with astonishment the train of wealth which followed individuals, whose sudden exaltation surprised even the possessors--they would inquire how all this came about? they will then examine into the powers by which these phenomena have arisen, and they will find--they will reprobate the falsehood of the theories of the present day. he said, that gentlemen had told us of the sudden irruptions of enemies. when those necessities arrive, it is time enough to make use of them to break your constitution. but, gentlemen say, upon emergencies the bank will loan money. we differ in opinion. i think when we want it most, the bank will be most unable and unwilling to lend. if we are in prosperity, we can borrow money almost any where; but in adversity, stockholders will avoid us with as much caution as any other capitalists. but a gentleman (mr. ames) tells us not to be alarmed, the bank will not eat up liberty--he said he was not afraid. he was not under any apprehensions that all the little influence that congress possessed would destroy the great spirit of american liberty. the body of the people would laugh at and ridicule any attempt to enslave them; but a conduct which had that tendency might arouse alarming passions. he said, there existed at this moment ill-blood in the united states, which to quiet he would readily agree to enter into a foreign war. america with us, we might defy the world. there was but one people he was afraid of offending. this was america. he was not afraid of foreign enemies, but the resentment of our own country is always a subject of serious apprehension. he observed, that there were other parts of this important and diffusive subject which he might have touched, but he had fatigued himself and the house. mr. smith (of south carolina) said, as he had been greatly misunderstood by the gentleman last up, he wished to explain the position he had laid down. he had never been so absurd as to contend, as the gentleman had stated, that whatever the legislature thought expedient, was therefore constitutional. he had only argued that in cases where the question was, whether a law was necessary and proper to carry a given power into effect, the members of the legislature had no other guide but their own judgment, from which alone they were to determine whether the measure proposed was necessary and proper to carry the powers vested in congress into full effect. if, in such cases, it appeared to them, on solemn deliberation, that the measure was not prohibited by any part of the constitution, was not a violation of the rights of any state or individual, and was peculiarly necessary and proper to carry into operation certain essential powers of the government, it was then not only justifiable on the part of congress, but it was even their duty to adopt such measure. that, nevertheless, it was still within the province of the judiciary to annul the law, if it should be by them deemed not to result by fair construction from the powers vested by the constitution. monday, february . _bank of the united states._ the house resumed the consideration of the bill for incorporating the bank of the united states. the question being on the passage of the bill, mr. giles.--in the course of discussing the present important question, it has been several times insinuated that local motives, and not a candid and patriotic investigation of the subject upon its merits, have given rise to that difference of opinion which has been heretofore manifested in this house. i shall not examine the truth of this observation, but merely remark, that the causes which may have produced the arguments against the proposed measure, whatever they may be, can neither add to, nor take from, their merit or influence, and, of course, the insinuations might have been spared without injury to the subject; but so far as the observation may have been intended to apply to myself, i can truly say, that if a bias were to influence my conduct, it would rather direct it to favor, than to oppose the proposed measure. this bias would arise from two causes: the one from the respect which i entertain for the judgments of the majority who advocate the measure; the other of a more serious nature. i have observed with regret a radical difference of opinion between gentlemen from the eastern and southern states, upon the great governmental questions, and have been led to conclude, that the operation of that cause alone might cast ominous conjecture on the promised success of this much valued government. mutual concessions appear to be necessary to obviate this effect, and i have always been pleased in manifesting my disposition to make advances; but from the most careful view of the arguments in favor of the proposed measure considered under this impression, they do not seem to me sufficient to establish the propriety of its adoption, and i am therefore impelled, by the joint influence of duty and opinion, to be one in the opposition. a gentleman from massachusetts (mr. ames) prefaced his observations with this remark, that it is easier to point out defects and raise objections to any proposed system, than to defend it from objections, and prove its affirmative propriety, and warned the house against the effects of arguments of this nature, urged in opposition to the measures now under consideration. i agree with the gentleman in this idea in general, but we should reflect that in the present case the address of the arguments in favor of the measure is made to one of the strongest affections of the human mind, the love of dominion; and hence we may justly conclude, that they will be received and relished with their full and unabated influence. this reflection appears to me to be at least a counterpoise to that remark. the advocates of this bill have been called on, and i conceive with propriety, to show its constitutionality and expediency, both of which have been doubted by those of the opposition. in support of the first position, a multitude of arguments have been adduced, all of which may be reducible to the following heads; such as are drawn from the constitution itself; from the incidentality of this authority to the mere creation and existence of government; from the expediency of the measure itself; and from precedents of congress; to which may be added a similar exercise of authority by congress, under the former confederation. observations arising from the constitution itself, were of two kinds. the right of exercising this authority is either expressed in the constitution, or deducible from it by necessary implication. one gentleman only, from massachusetts, (mr. sedgwick,) has ventured to assert, that, discarding the doctrine of implication, he could show that the right to exercise the authority contended for was expressly contained in the constitution. this, i presume, must have been a mistake in language, because the difference between an express and an implied authority appears to me to consist in this--in the one case, the natural import of the words used in granting the authority would of themselves convey a complete idea to the mind of the authority granted, without the aid of argument or deduction; in the other, to convey a complete idea to the mind, the aid of argument and deduction is found necessary to the usual import of words used; and that gentleman proceeded with a labored argument to prove, that the authority was expressly granted, which would have been totally useless, if his assertion had been just. [mr. sedgwick rose to explain; he never conceived the authority granted by the express words of the constitution, but absolutely by necessary implication from different parts of it.] i shall not contend as to the assertion, but shall proceed to consider the arguments in favor of the measure upon the doctrine of implication; which, indeed, are those only which deserve consideration. in doing this, i shall consider the authority contended for to apply to that of granting charters to corporations in general, for i do not recollect any circumstance, and i believe none has been pretended, which could vary this case from the general exercise of that authority. to establish the affirmative of this proposition, arguments have been drawn from the several parts of the constitution; the context has been resorted to. "we, the people of the united states, in order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity," &c. it has been remarked, that here the ends for which this government was established are clearly pointed out; the means to produce the ends are left to the choice of the legislature, and that the incorporation of a bank is one necessary mean to produce these general ends. it may be observed, in reply, that the context contemplates every general object of government whatever; and if this reasoning were to be conclusive, every object of government would be within the authority of congress, and the detail of the constitution would have been wholly unnecessary, further than to designate the several branches of the government which were to be intrusted with this unlimited, discretionary choice of means, to produce these specified ends. the same reasoning would apply as forcibly to every clause of the constitution, restraining the authority of congress to the present case, or to any one in which the constitution is silent. the only candid construction arising from the context appears to me to be this; it is designed, and it is the known office of every member to point out the great objects proposed to be answered by the subsequent regulations of which the constitution is composed. these regulations contain the means by which these objects are presumed to be best answered. these means consist in a proper distribution of all governmental rights between the government of the united states and the several state governments, and in fixing limits to the exercise of all authorities granted to the government of the united states. the context, therefore, gives no authority whatever, but only contemplates the ends for which certain authorities are subsequently given. arguments drawn from this source appear to be ineffectual in themselves, and the reliance of gentlemen upon them indicates a suspicion and distrust of such as may be drawn from other parts of the constitution. the advocates of the bill have turned away from this context, and have applied to the body of the constitution in search of arguments. they have fixed upon the following clauses, to all or some one of which they assert the authority contended for is clearly incidental; the right to lay and collect taxes, &c., &c.; to provide for the common defence and general welfare, &c.; to borrow money, &c.; to regulate commerce with foreign nations, &c. the bill contemplates neither the laying nor collecting taxes, and, of course, it cannot be included in that clause; indeed, it is not pretended, by the bill itself, to be at all necessary to produce either of those ends; the furthest the idea is carried in the bill, is, that it will tend to give a facility to the collection. the terms "common defence and general welfare" contain no grant of any specific authority, and can relate to such only as are particularly enumerated and specified. "to borrow money." gentlemen have relied much upon this clause; their reasoning is, that a right to incorporate a bank is incidental to that of borrowing money, because it creates the ability to lend, which is necessary to effectuate the right to borrow. i am at a loss to discover one single relation between the right to borrow, and the right to create the ability to lend, which is necessary to exist between principal and incident. it appears to me that the incidental authority is paramount to the principal, for the right of creating the ability to lend is greater than that of borrowing from a previously existing ability. i should, therefore, rather conclude that the right to borrow, if there be a connection at all, would be incidental to the right to grant charters of incorporation, than the reverse of that proposition, which is the doctrine contended for by the advocates of the measure. the same reasoning which would establish a right to create the ability to lend, would apply more strongly to enforce the will after the ability is created; because the creator would have a claim of gratitude at least upon the created ability, which if withheld, perhaps, with justice might be insisted on. "to regulate commerce with foreign nations." this is by no means a satisfactory ground for the assumption of this authority; for if it be deemed a commercial regulation, there is a clause in the constitution which would absolutely inhibit its exercise. i allude to that clause which provides that no preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another; and it seems to be admitted, that one principal effect to be produced by the operation of this measure will be to give a decided commercial preference to this port over every other in the united states. gentlemen finding it difficult to show that necessary relation and intimate connection between the authority contended for, and any one of the specified authorities before mentioned, which would be essential to the establishment of their doctrine, have referred to what has been generally called the sweeping clause, and have made deductions from the terms "necessary" and "proper;" they have observed that certain specified authorities being granted, all others necessary to their execution follow without any particular specification. this observation may in general be true, but its fallacy here consists in its application to this particular case. it cannot be applied until the exercise of this authority be proved to be necessarily connected with some one of the previously enumerated authorities, and here the argument, as well as the fact, fails. the authority contended for seems to me to be a distinct substantive branch of legislation, and, perhaps, paramount to any one of the previously enumerated authorities, and should therefore not be usurped as an incidental subaltern authority. i am confirmed in this opinion from the indistinct, confused conceptions of gentlemen who advocate the measure. they rely upon the incidentality of this authority to some one of those particularly specified, and yet have applied it as an incident to several distinct, unconnected subjects of legislation; and then, distrusting their own conclusions, or as if the inquiry would be too troublesome or minute, they leave this ground, and assert that it is incidental to the result of the whole combined specified authorities. gentlemen must, therefore, view this right through different optics, at different times; or, what i rather believe to be the fact, they have no distinct view of it at all, the right having no existence. a gentleman from massachusetts, (mr. sedgwick,) finding the usual import of the terms used in the constitution to be rather unfavorable to the doctrines advanced by him, has favored us with a new exposition of the word "necessary." he says that "necessary," as applicable to a mean to produce an end, should be construed so as to produce the greatest quantum of public utility. i have been taught to conceive that the true exposition of a necessary mean to produce a given end was that mean without which the end could not be produced. the gentleman's reasoning, however, if pursued, will be found to teem with dangerous effects, and would justify the assumption of any given authority whatever. terms are to be so construed as to produce the greatest degree of public utility. congress are to be the judges of this degree of utility. this utility, when decided on, will be the ground of constitutionality. hence any measure may be proved constitutional which congress may judge to be useful. these deductions would suborn the constitution itself, and blot out the great distinguishing characteristic of the free constitutions of america, as compared with the despotic governments of europe, which consist in having the boundaries of governmental authority clearly marked out and ascertained. the exclusive jurisdiction over ten miles square has been adverted to by one gentleman (mr. ames) as a specified authority, to which the one contended for is suggested to be incidental. he has reasoned in this manner: congress possess jurisdiction over ten miles square, &c.; congress may therefore establish a bank within the ten miles square, and, as principle is not applicable to place, congress may exercise the same authority any where else. this seems to me to be an ingenious improvement upon sophistical deduction; the gentleman, however, should have reflected that the ground upon which he built the right to exercise this authority was that of exclusive jurisdiction, and to extend the principle it is necessary to extend the right of exclusive jurisdiction; without this, the basis of his argument fails, and the superstructure, however beautiful, must follow; for the principle, if at all deducible from that source, is expressly confined to place, and cannot operate beyond it. i shall now consider the second resource, whence the constitutional right of exercising the proposed authority is derived; its incidentality to the mere creation and existence of government. it has been observed, that in all governments there are certain rights tacitly granted, and certain other rights retained; that it is impossible, in framing a constitution, to enumerate every minute governmental right, and that such an attempt would be chimerical and vain. and hence the incidentality of this authority to the mere existence of government is inferred. these observations seem to me to apply to a government growing out of a state of society, and not to a government composed of chartered rights from previously existing governments, or the people of those governments. i have been taught to consider this as a federal, not as a consolidated government, and am not prepared or disposed at present to relinquish that idea. a gentleman from new york (mr. lawrence) has remarked, that the government is consolidated _quo ad_ the powers granted, and of course _quo ad_ their incidents; but he should first have shown that the authority contended for is one of those granted, or incidental to some one of them, before the application can be made. the observation can have no tendency to establish either of those positions. what effect would this doctrine, if admitted, have upon the state governments? and how would it be relished by them? their dignity and consequence will not only be prostrated by it, but their very existence radically subverted. a third resource of deducing this constitutional authority is resorted to--the expediency of the proposed measure itself. i presume the great object of the constitution was to distribute all governmental rights between the several state governments and the government of the united states; the expediency, therefore, of the exercise of all constitutional rights, as they relate to state or general governments, is properly contemplated and decided by the constitution, and not by the governments among which the distribution is made. a gentleman from south carolina (mr. smith) has said, that the expediency and constitutionality of the proposed measure cannot be considered separately, because the constitutionality grows out of the expediency. this is but candidly unveiling the subject of that sophistical mask which has been ingeniously thrown over it by some gentlemen; for all the arguments adduced in favor of the measure, from whatever source they arise, if pursued, will be found to rush into the great one of expediency, to bear down all constitutional provisions, and to end themselves in the unlimited ocean of despotism. several gentlemen have said, that this authority may be safely exercised, since it does not interfere with the rights of states or individuals. i think this assertion not very correct; if the states be constitutionally entitled to the exercise of this authority, it is an intrusion on their rights to do an act which would eventually destroy or impede the freest exercise of that authority; for it is totally immaterial whether the effect be produced by the operation of this, or by an inhibition in express terms. the states may not only incorporate banks, but may of right prohibit the circulation of bank paper within their respective limits; the act, therefore, if it be intended to have an effectual operation, will certainly infringe this right, or exist at the mercy of the state governments. this reasoning, however, places the subject in another point of view a little singular. it contemplates the authority contended for as vacant ground, and justifies the tenure by the mere title of occupancy. in almost all the remarks in favor of the measure, gentlemen seem to have forgotten the peculiar nature of this government. it being composed of mere chartered authorities, all authority not contained within that charter would, from the nature of the grant, have been retained to the granting party; and i will venture to assert, that this opinion was the _sine qua_ _non_ of the adoption and existence of this government; but if this opinion had been doubtful, congress themselves have made an express declaration in favor of this construction to the proposed amendments to the constitution. gentlemen have inferred a constitutional right to exercise the authority contended for from a fourth resource--the former usages and habits of congress. in affirmance of this argument, several acts of congress have been referred to--the power of removal from office, the government of the western territory, the cession from north carolina, the purchase of west point, &c. i shall not examine into the propriety of these several acts, though i conceive it would not be difficult to show, that they differ materially, upon constitutional grounds, from the one now proposed. i shall only remark, that, if congress have heretofore been in the usage and habit of disregarding and violating the constitution, it is high time that that habit and usage be corrected. i hope and trust that the people of the united states will not tamely see the only security of their rights and liberties invaded and violated, but also see one violation of it with impunity boldly urged as an argument to justify another. an instance of a similar exercise of authority by the congress which existed under the former confederation, has been mentioned in favor of its exercise by the present congress. the argument has been, that as the powers of the present congress are greater than those of the former congress, and the former were competent to the exercise of this right, the present must be more so. it is to be remarked, that that act was the child of necessity, and that congress doubted its legitimacy, and the act itself was never confirmed by a judicial decision; and it should be also remarked, that the same congress did not pretend to possess the right to punish those who should counterfeit the paper of the bank, and recommended it to the states to confirm the act which they had done, and to pass laws for the purpose of punishing those who should counterfeit the paper, and it is a little remarkable that this circumstance, which is one of the most essential to the existence and operation of this act, is withheld from our view. but as i think arguments drawn from this source wholly foreign to the subject, i shall make no further remark upon them. i shall now suggest a few observations respecting the expediency of the proposed measure. in doing this, i shall not say any thing as to the utility of banks in general, nor as to the effects of the banks of england, scotland, holland, &c. i possess not sufficient practical or theoretical knowledge to justify the inquiry; i shall only point out a few circumstances, which are peculiarly attached to the government we are now administering, which might vary the application of general rules, drawn from governments of a different nature, and which possess the unquestioned right of granting charters of incorporation. in the first place, the right of exercising that authority by the government is at least problematical, it is nowhere granted in express terms; the legislature, therefore, can have no competent security against a judicial decision but a dependent or a corrupt court. i presume that a law to punish with death those who counterfeit the paper emitted by the bank will be consequent upon the existence of this act. hence a judicial decision will probably be had of the most serious and awful nature; the life of an individual at stake on the one hand, an improvident act of the government on the other. a distrust arising from this cause will for ever keep the bank in jeopardy, and the very first trial of this nature will probably subject the bank to a run which it will be unable to withstand; for all stockholders will require the greatest possible security for their money, and a distrust of such an institution will be its destruction. this observation seems to me to have peculiar force, from the great proportion of paper to that of gold and silver, upon which the bank is proposed to be founded. the peculiar relation between the general and state governments, will naturally produce a contest for governmental rights, until long experience shall settle the precise boundaries between them. the present measure appears to me to be an unprovoked advance in this scramble for authority, and a mere experiment how far we may proceed without involving the opposition of the state governments. it should be remarked that this government is in its childhood; it is therefore unfitted for such bold and manly enterprises, and policy would dictate that it should wait at least until it may have become more matured or invigorated. two modes of administering this government present themselves; the one with mildness and moderation, by keeping within the known boundaries of the constitution, the other, by the creation and operation of fiscal mechanism; the first will ensure us the affections of the people, the only natural and substantial basis of republican governments; the other will arise and exist in oppression and injustice, will increase the previously existing jealousies of the people, and must be ultimately discarded, or bring about a radical change in the nature of our government. having suggested these observations upon the measure in general, i shall now proceed to point out a few objections to the details of the bill. i think the authority given to the bank to purchase and hold lands objectionable; in the first place i doubt the constitutional right of congress to invest such an authority; the lands within the united states are holden of the individual states, and not of the united states; and that tenure appears to me to be the true ground upon which the right to exercise that authority grows. i believe it is admitted, that although congress may naturalize a foreigner, they cannot authorize him to purchase lands; and i think the case at least as strong, when they first create an artificial person, and then invest the authority; besides, if we have any reference to the experience of other countries, we shall find it dangerous to allow incorporated bodies to hold lands at all. the exercise of that right produced great oppression in england, and nothing but the masterly activity of an absolute prince could apply a competent remedy. a gentleman from massachusetts (mr. sedgwick) has denied that the bank is invested with this right. it is true it is confined to the mode of purchasing by mortgage, but that is the most effectual mode of purchasing, and the most ruinous to the landholder. i will merely mention one other objection without a comment--the authority given to make laws not contrary to law or its own constitution; but the most objectionable clause is that which limits its duration, and pledges the faith of the united states that no other bank shall be established in the mean time, however dangerous and offensive the present measure might prove in its operation, and whatever may be the utility and advantage in any other scheme of banking which experience may suggest. such a stipulation cannot be justified but from the most pointed necessity, and from the maturest deliberation. when i search for the necessity of this measure, it escapes me; it is not pretended in the bill itself; the chief stimulus which i can discover to the existence of this measure, is to give artificial impulse to the value of stock. this is not a sufficient justification; the subject has not been sufficiently considered, and i therefore hope it may be postponed to some future session of congress; many evils may be avoided by such a conduct, none can result from it. mr. gerry said, he should principally confine himself to the objections of the gentleman first up from virginia, (mr. madison,) not from a disrespect to the observations of other gentlemen in the opposition, but because he considered their arguments as grafts on the original stock of those urged by the gentleman alluded to, and if the trunk fell, its appendages must fall also. the objects of the bill were to render the fiscal administration successful, and to give facility to loans on sudden emergencies, and to benefit trade and industry in general; and that these were objects of high importance had not been denied, neither had it been asserted that they ought not, if possible, to be attained. it is objected, however, that the mode proposed by the bill is unconstitutional, and the bill itself defective. the mode proposed is a national bank; to establish which he thought congress were as competent as either house were to adjourn from day to day. it is said that congress have no power relating to this subject, except what is contained in the clauses for laying and collecting taxes, imposts, excises, &c.; for borrowing money, and for making all laws necessary and proper for carrying these powers into effect; and that these do not authorize the establishment of a national bank. to ascertain this, the gentleman from virginia proposes a candid interpretation of the constitution, which we shall agree to, and he offers to assist us with his rules of interpretation, for his good intentions in doing which we give him full credit; but as he acknowledges that he has been long decided against the authority of congress to establish a bank, and is therefore prejudiced against the measure; as his rules, being made for the occasion, are the result of his interpretation, and not his interpretation of the rules; as they are not sanctioned by law exposition, or approved by experienced judges of the law, they cannot be considered as a criterion for regulating the judgment of the house, but may, if admitted, prove an _ignis fatuus_ that may lead to destruction. we wish not, however, by establishing our own rules of interpretation, to enjoy the privilege which is denied to the gentleman, but will meet him on fair ground, by applying rules which have the sanction mentioned; and as the learned _judge blackstone_ has laid down such, it is presumed the gentleman from virginia will not contend for a preference, or refuse to be tried by this standard. the judge observes: "that the fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made by signs the most natural and probable; and these signs are either the words, the context, the subject-matter, the effect and consequence, or the spirit and reason of the law." with respect to words, the judge observes, that "they are generally understood in their usual and most ordinary signification, not so much regarding the grammar as their general and popular use." the gentlemen on different sides of the question do not disagree with respect to the meaning of the terms _taxes_, _duties_, _imposts_, _excises_, &c., or of _borrowing money_, but of the word _necessary_: and the question is, what is the general and popular meaning of this term? perhaps the answer to the question will be truly this, that in a general and popular one the word does not admit of a definite meaning, but that this varies according to the subject and circumstances. with respect to the subject for instance, if the people, speaking of a garrison besieged by a superior force, and without provisions, or a prospect of relief, should say it was under the necessity of surrendering, they would mean a physical necessity, for troops cannot subsist long without provisions; but if speaking of a debtor, the people should say he was frightened by his creditor and then reduced to the necessity of paying his debts, they would mean a legal, which is very different from a physical necessity; for although the debtor, by refusing payment, might be confined, he would be allowed subsistence, and the necessity he was under to pay his debts would not extend beyond his confinement. again, if it should be said that a client is under the necessity of giving to his lawyer more than legal fees, the general popular meaning of necessity would, in this instance, be very different from that in the other; the necessity would neither be physical nor legal, but artificial, or, if i may be allowed the expression, a long-robe necessity. the meaning of the word "_necessary_," varies also according to circumstances; for although congress have power to levy and collect taxes, duties, &c., to borrow money, and to determine the time, quantum, mode, and every regulation necessary and proper for supplying the treasury, yet the people would apply a different meaning to the word "necessary" under different circumstances. for instance, without a sufficiency of precious metals for a medium, laws creating an artificial medium would be generally thought necessary for carrying into effect the power to levy and collect taxes; but if there was a sufficiency of such metals, those laws would not generally be thought necessary. again, if specie was scarce, and the credit of the government low, collateral measures would be by the people thought necessary for obtaining public loans: but not so, if the case was reversed. or, if part of the states should be invaded and overrun by an enemy, it would be thought necessary to levy on the rest heavy taxes, and collect them in a short period, and to take stock, grain, and other articles from the citizens without their consent, for the common defence; but in a time of peace and safety, such measures would be supposed unnecessary. instances may be multiplied in other respects; but it is conceived that these are sufficient to show that the popular and general meaning of the word "necessary," varies according to the subject and circumstances. the second rule of interpretation relates to the _context_, and the judge conceives that "if words are still dubious, we may establish their meaning by the context; thus the preamble is often called in to help the construction of an act of parliament." the constitution, in the present case, is the great law of the people, who are themselves the sovereign legislature, and the preamble is in these words: "we, the people of the united states, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the united states of america." these are the objects for which the constitution was established, and in administering it we should always keep them in view. and here it is remarkable, that although the common defence and general welfare are held up in the preamble among the primary objects of attention, they are again mentioned in the eighth section of the first article, whereby we are enjoined in levying taxes, duties, &c., particularly to regard the common defence and general welfare; indeed common sense dictates the measure; for the security of our property, families, and liberty--of every thing dear to us, depends on our ability to defend them. the means, therefore, for attaining this object, we ought not to omit a year, month, or even a day, if we could avoid it; and we are never provided for defence unless prepared for sudden emergencies. should government be surprised in this case, it would be as dishonorable as for a general to be surprised in a state of warfare, and the event to the community may be much more fatal. if provision then for sudden emergencies is indispensable, it must be evident that it will depend in a great measure on the ability of the government to command, at all times, for this purpose, a sufficient sum of money, which is justly denominated the sinews of war; and how is this to be effected? by emissions of bills of credit? during the revolution, bills of credit, it must be acknowledged, have done wonders; they have, in conflict with the banks, treasury, and public credit of great britain, risen superior to them all, and have since died a natural death. we have honored them with a funeral pile; we now bid peace to their manes, and devoutly hope that bills of credit will for ever be extinct in the united states. are we to depend, then, on taxes for commanding money in cases of urgent necessity? these, as has been shown by other gentlemen, will be too slow in their operations, unless, indeed, we should levy a tax for drawing into and locking up in the treasury three or four millions of dollars; a law which would be universally considered as unnecessary and improper. by loans, and loans only, can provision be made for sudden emergencies; but if loans should be made previously to an emergency, the people would be unnecessarily burdened by the interest thereof, and most of the other evils would ensue that would arise from previous taxes; and if they were to be made at an emergency, without previous arrangements, of whom are we to borrow? of individuals? these cannot be depended on, as has been fully proved by our own experience at the commencement of the revolution. are we to apply to the banks already established in the states for loans? these can no more be depended upon than individuals; for stockholders having not more attachment to government than other citizens, would, in cases of public danger, attend to the preservation of their property by other means than loaning it to government. and moreover, the united capitals of all the banks existing in the union would be insufficient for government, for they do not amount to a million and a half of dollars, and only a part in this could, in any case, be reasonably expected on loan. are we to apply to foreign banks or individuals? these, as has been shown, are too remote; and if not, we have not been able, without the assistance of an ally, to obtain foreign loans during the war, and perhaps the power on whose assistance we may rely would be hostile to us. such dependence, then, as has been stated, would necessarily leave us in a deplorable state; and it must be evident that a previous arrangement to aid loans in cases of sudden emergency is necessary and proper in the general and popular use of the term, inasmuch as any other measure that congress can adopt would be inadequate to the purpose of common defence; and what previous arrangement can we make so proper as that of a national bank? if gentlemen in the opposition know of any, let them produce it, and let the merits of it be investigated; for it is unreasonable to propose a rejection of this plan without producing a better. the plan proposed by the secretary of the treasury, which is now the subject of discussion, does honor, like all his other measures, to his head and heart; it will be mutually beneficial to the stockholders and to government, and consequently so to the people. the stockholders by this plan will be deeply interested in supporting government; because three-quarters of their capital, consisting of funded certificates, depend on the existence of government, which therefore is the prop of their capital, the main pillar that supports the bank. again, the credit of government, which is immaterial to the other banks, is essential to the national bank, for the annual interest of three-quarters of its capital, which must form a great share of its profits, will depend altogether on the credit of government, and produce, on the part of the stockholders, the strongest attachment to it. on the other hand, it will be the interest of government to support the bank, as well on account of the benefits which the public will generally derive from the institution, and the profits arising from the shares of government in the stock which will be hereafter noticed, as of the supplies of money which it will be for the interest of the bank to furnish in cases of urgent necessity. whenever these exist, congress may lay a tax for supplying the treasury, and anticipate it with certainty by means of the national bank. it being then our duty to provide for the common defence in cases of emergency, the provision must evidently be made by taxes, loans, or by arrangements for obtaining the latter on the earliest notice; and previous taxes and loans being oppressive, improper, and unnecessary, the arrangements for aiding loans become indispensable, and a bank consequently necessary and constitutional. the third rule of the judge, relative to the "subject-matter" of a law, it is unnecessary to apply, because the members agree in their ideas relative to the meaning of the terms taxes, duties, loans, &c. the fourth rule, which relates to "effects and consequences," is important; and here the learned judge observes that "as to effects and consequences, the rule is, where the words bear none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them." in the present case, the gentlemen in the opposition generally, as well as the gentleman first up from virginia, give the whole clause by which congress are authorized "to make all laws necessary and proper," &c., no meaning whatever; for they say, the former congress had the same power under the confederation without this clause as the present congress have with it. the _federalist_ is quoted on this occasion, but although the author of it discovered great ingenuity, this part of his performance i consider as a political heresy. his doctrine, indeed, was calculated to lull the consciences of those who differed in opinion with him at that time; and having accomplished his object, he is probably desirous that it may die with the opposition itself. the rule in this case says, that where the words bear no signification, we must deviate a little; and as this deviation cannot be made by giving the words less than no meaning, it must be made by a more liberal construction than is given by gentlemen in the opposition. thus their artillery is turned on themselves, for their own interpretation is an argument against itself. the last mentioned rule relates to the spirit and reason of the law, and the judge is of opinion "that the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it, or the cause which moved the legislature to enact it". the causes which produced the constitution were an imperfect union, want of public and private justice, internal commotions, a defenceless community, neglect of the public welfare, and danger to our liberties. these are known to be the causes not only by the preamble of the constitution, but also from our own knowledge of the history of the times that preceded the establishment of it. if these weighty causes produced the constitution, and it not only gives power for removing them, but also authorizes congress to make all laws necessary and proper for carrying these powers into effect, shall we listen to assertions that these words have no meaning, and that this constitution has not more energy than the old? shall we thus unnerve the government, leave the union, as it was under the confederation, defenceless against a banditti of creek indians, and thus relinquish the protection of its citizens? or shall we, by a candid and liberal construction of the powers expressed in the constitution, promote the great and important objects thereof? each member must determine for himself; i shall without hesitation choose the latter, and leave the people and states to determine whether or not i am pursuing their true interest. if it is inquired where we are to draw the line of a liberal construction, i will also inquire where the line of restriction is to be drawn? the interpretation of the constitution, like the prerogative of a sovereign, may be abused; but from hence the disuse of either cannot be inferred. in the exercise of prerogative the minister is responsible for his advice to his sovereign, and the members of either house are responsible to their constituents for their conduct in construing the constitution. we act at our peril; if our conduct is directed to the attainment of the great objects of government, it will be approved, and not otherwise; but this cannot operate as a reason to prevent our discharging the trusts reposed in us. let us now compare the different modes of reasoning on this subject, and determine which is right, for both cannot be. the gentleman from virginia (mr. madison) has urged the dangerous tendency of a liberal construction; but which is most dangerous, a liberal or a destructive interpretation? the liberty we have taken in interpreting the constitution, we conceive to be necessary, and it cannot be denied to be useful in attaining the objects of it; but whilst he denies us this liberty, he grants to himself a right to annul a part, and a very important part of the constitution. the same principle that will authorize a destruction of part, will authorize the destruction of the whole of the constitution; and if gentlemen have a right to make such rules, they have an equal right to make others for enlarging the powers of the constitution, and indeed of forming a despotism. thus, if we take the gentleman for our pilot, we shall be wrecked on the reef which he cautions us to avoid. the gentleman has referred us to the last article of the amendments proposed to the constitution by congress, which provides that the powers not delegated to congress, or prohibited to the states, shall rest in them or the people; and the question is, what powers are delegated? does the gentleman conceive that such only are delegated as are expressed? if so, he must admit that our whole code of laws is unconstitutional. this he disavows, and yields to the necessity of interpretation, which, by a fair and candid application of established rules of construction to the constitution, authorizes, as has been shown, the measure under consideration. the usage of congress has also been referred to; and if we look at their acts under the existing constitution, we shall find they are generally the result of a liberal construction. i will mention but two. the first relates to the establishment of the executive departments, and gives to the president the power of removing officers. as the constitution is silent on this subject, the power mentioned, by the gentleman's own reasoning, is vested in the states or the people; he, however, contended for an assumption of the power, and when assumed, urged that it should be vested in the president, although, like the power of appointment, it was by a respectable minority in both houses conceived that it should have been vested in the president and senate. his rule of interpretation then was therefore more liberal than it is now. in the other case, congress determined by law, with the sanction of the president, when and where they should hold their next session, although the constitution provides that this power should rest solely in the two houses. the gentleman also advocated this measure, and yet appears to be apprehensive of the consequences that may result from a construction of the constitution which admits of a national bank. but from which of these measures is danger to be apprehended? the only danger from our interpretation would be the exercise by congress of a general power to form corporations; but the dangers resulting from the gentleman's interpretations, in the cases alluded to, are very different; for what may we not apprehend from the precedent of having assumed a power on which the constitution was silent, and from having annexed it to the supreme executive? if we have this right in one instance, we may extend it to others, and make him a despot. and here i think it necessary to declare, that such is my confidence in the wisdom, integrity, and justice of the chief magistrate, as that i should be at ease, if my life, liberty, and property were at his disposal; but this is a trust which i am not authorized to make for my constituents; and as his successors in office will possess equal powers, but may not possess equal virtues, caution with respect to them is necessary. again, what may be the result of the precedent relating to the session of congress? if we had a right by law to determine where the next congress should hold their session, one congress may oblige another to sit in kentucky, or in the intended state yazoo, under the protection of a choctaw chief, or his excellency, governor tallan. it must therefore be evident that the usage of congress in both instances is against the gentleman, and that the dangers from the precedent of establishing a bank are comparatively small to those resulting from the other measures referred to. the gentleman from virginia has endeavored to support his interpretation of the constitution by the sense of the federal convention; but how is this to be obtained? by applying proper rules of interpretation? if so, the sense of the convention is in favor of the bill; or are we to depend on the memory of the gentleman for a history of their debates, and from thence to collect their sense? this would be improper, because the memories of different gentlemen would probably vary, as they had already done, with respect to those facts; and if not, the opinions of the individual members who debated are not to be considered as the opinions of the convention. indeed, if they were, no motion was made in that convention, and therefore none could be rejected for establishing a national bank; and the measure which the gentleman has referred to was a proposition merely to enable congress to erect commercial corporations, which was, and always ought to be, negatived. the gentleman's arguments respecting the sense of the state conventions have as little force as those relating to the federal convention. the debates of the state conventions, as published by the short-hand writers, were generally partial and mutilated; in this, if the publications are to be relied on, the arguments were all on one side of the question; for there is not in the record, which is said to contain the pennsylvania debates, a word against the ratification of the constitution; although we all know that arguments were warmly urged on both sides. the gentleman has quoted the opinions, as recorded in the debates of this state and north carolina, of two of our learned judges; but the speech of one member is not to be considered as expressing the sense of a convention; and if it was, we have no record which can be depended on of such speeches. indeed, had even this been the case, the union was at that time divided into two great parties, one of which feared the loss of the union if the constitution was not ratified unconditionally, and the other the loss of our liberties if it was. the object on either side was so important as perhaps to induce the parties to depart from candor, and to call in the aid of art, flattery, professions of friendship, promises of office, and even good cheer; and when these failed, the _federal bull_ was published, denouncing political death and destruction to anti-federal infidels. under such circumstances, the opinions of great men ought not to be considered as authorities, and in many instances could not be recognized by themselves. mr. g. then observing that the sense of the states respecting a bank would be best ascertained by their legislative acts, showed, from the journals of congress, that when restrained by the confederation from exercising any powers but what were expressly delegated, congress had, without any authority, established a bank whose capital might extend to ten millions of dollars; and had not only pledged the faith of the union not to erect any other, but had recommended it to the states to prohibit any state establishment of the kind, and had also determined that the bank bills should be receivable in the taxes and duties of every state. that the states did not remonstrate against, or tacitly acquiesce in, but actually supported the measures of congress relative to the bank, whilst the war continued, and after the peace. that this was the strongest evidence the states could give that they thought the measure salutary, and had no objection to it on the ground of its being unconstitutional. he then urged, that if the states and the people at large had no objection to a bank in that case, they could not in this; and inquired whether there was any evidence of their disapprobation of such an institution in the debates of their conventions or propositions for amendments? to this he answered in the negative, and urged, that whilst the conventions were silent on the subject, and had no objections to such a measure, several of them had proposed amendments to the constitution for restraining congress from establishing commercial corporations; which evinced their disapprobation of such institutions, and admitted at the same time, in some degree, the power of congress, under the existing constitution, to form them. mr. g. then showed, that as a monopoly had been urged as an objection to the bill, no such consequence could result from it; for the bill does not restrain state or private banks, or even individuals, from negotiations of a similar nature with those permitted to the stockholders; nor does it restrain the states from forming similar corporations. this plan has not a feature of monopoly, and the gentlemen who oppose it contend for a bank which, according to its original institution, was founded in monopoly. he then answered the arguments urged against the authority of congress to enable corporations to hold lands, when they had no power themselves of purchasing and holding land; and showed, that although congress are restrained from purchasing lands, (except in certain cases,) and from exercising over the same exclusive legislation, yet that they may hold lands obtained by execution, conquest, and by other means as well as by those clauses of the constitution which relate to lands now belonging to the union; and that congress had often invested others with powers which they themselves could not exercise. he then noticed the argument, that, by a law of virginia, notes payable to the bearer, or order, would not circulate in that state, and observed that this law could not be supposed to extend to bank notes; and if it did, it would be null and void, because the constitution of the union, and laws, made in pursuance thereof, were paramount to the laws and constitutions of the several states. having considered the arguments against the constitutionality of the bill, he entered into the policy and utility of the measure. tuesday, february . _bank of the united states._ the house resumed the consideration of the bill for incorporating the bank of the united states. the question still being on the passage of the bill, mr. vining apologized for rising to offer his sentiments on this subject, which had been already so ably discussed; but considering the nature of the objections as arising from constitutional principles, it had acquired an importance which would justify his troubling the house with some remarks. he began by noticing the leading argument of mr. madison respecting the sense of the continental convention on the power proposed to be exercised by congress in this bill. he showed that the opinion of the gentleman, in this instance, was, if not singular, different from that of his contemporaries; at least a similar objection had not been started by those gentlemen of the senate, who had been members of the convention; but granting that the opinion of the gentleman from virginia had been the full sense of the members of the convention, their opinion at that day, he observed, is not a sufficient authority by which for congress at the present time to construe the constitution. mr. v., in explaining the powers proposed by the bill to be given to the corporation of the bank, adverted to the particular power of "making rules and regulations not contrary to law." he showed that this term law means the common law; and alluded to the inquiry of mr. madison, as to what law was intended by this clause, who, in answering his own question, said, "that if the laws of the united states were intended, the power contemplated was dangerous and unconstitutional, as those laws were very few in number." mr. v. observed, that the restriction contended for by the gentleman as the result of his objection, would annihilate the most essential rights and privileges of the citizens of the united states. he then observed, a corporation is nothing more than constituting a body with powers to effect certain objects in a combined capacity, which an individual may do in his individual capacity, agreeable to the usage and customs of common law. adverting to the act by which the united states became a free and independent nation, he said, from that declaration, solemnly recognized at home and abroad, they derive all the powers appertaining to a nation thus circumstanced, and consequently the power under consideration. he traced the origin of corporations to the time of numa, the first of which was for agricultural purposes; they were afterwards extended to other objects; and from that day to this, all civilized and independent nations have been in the practice of creating them; and what do they amount to but this--enabling a number of persons, in a combined capacity, to do that to a more certain effect than an individual may do; but subject to the control of common law, in all its regulations and transactions. on the doctrine of construction, as applied to the constitution, he observed, that on some occasions the constitution is like the sensitive plant, which shrinks from the smallest touch; on others it is like the sturdy oak, which braves the force of thunder. he referred to the act containing the power of removability; in which the utmost latitude of construing the constitution was contended for and adopted; and, said he, the funding system cannot be defended on any other principle than of implication. he then inquired, of what right does this incorporation deprive a single citizen? and can an act possibly meet the disapprobation of a single person which does not infringe his rights, and which puts money into his pocket? i think not. he insisted that the power of congress alone was equal to establishing a bank competent to creating a currency which shall pervade all parts of the union; the paper of the state banks cannot circulate beyond the bounds of the particular states. from the restrictions to the government contended for by the opposers of the bill, he compared the constitution to a horse finely proportioned in every respect to the eye, and elegantly caparisoned, but deficient in one, and the most essential requisite, that of ability to carry the owner to his journey's end; he had rather, he said, mount the old confederation, and drag on in the old way, than be amused with the appearance of a government so essentially defective. mr. madison observed, that the present is a question which ought to be conducted with moderation and candor; and, therefore, there is no occasion to have recourse to those tragic representations which have been adduced. warmth and passion should be excluded from the discussion of a subject which ought to depend on the cool dictates of reason for its decision. adverting to the observation of mr. smith, (of south carolina,) "that it would be a deplorable thing for the senate of the united states to have fallen on a decision which violates the constitution," he inquired, what does the reasoning of the gentleman tend to show but this, that from respect to the senate this house ought to sanction their decisions? and from hence it will follow, that the president of the united states ought, out of respect to both, to sanction their joint proceedings; but he could remind the gentleman of his holding different sentiments on another occasion. mr. m. then enlarged on the exact balance or equipoise contemplated by the constitution, to be observed and maintained between the several branches of government; and showed, that except this idea was preserved, the advantages of different independent branches would be lost, and their separate deliberations and determinations be entirely useless. in describing a corporation, he observed, that the powers proposed to be given are such as do not exist antecedent to the existence of the corporation; these powers are very extensive in their nature, and to which a principle of perpetuity may be annexed. he waived a reply to mr. vining's observations on the common law, [in which that gentleman had been lengthy and minute, in order to invalidate mr. madison's objections to the power proposed to be given to the bank, to make rules and regulations, not contrary to law.] mr. m. said the question would involve a very lengthy discussion; and other objects more intimately connected with the subject remained to be considered. the power of granting charters, he observed, is a great and important power, and ought not to be exercised unless we find ourselves expressly authorized to grant them. here he dilated on the great and extensive influence that incorporated societies had on public affairs in europe. they are powerful machines, which have always been found competent to effect objects on principles in a great measure independent of the people. he argued against the influence of the precedent to be established by the bill; for though it has been said, that the charter is to be granted only for a term of years, yet he contended, that granting the powers on any principle is granting them in _perpetuum_; and assuming this right on the part of the government involves the assumption of every power whatever. noticing the arguments in favor of the bill, he said, it had been observed that "government necessarily possesses every power." however true this idea may be in the theory, he denied that it applied to the government of the united states. here he read the restrictive clause in the constitution; and then observed, that he saw no pass over this limit. the preamble to the constitution, said he, has produced a new mine of power; but this is the first instance he had heard of, in which the preamble has been adduced for such a purpose. in his opinion, the preamble only states the objects of the confederation, and the subsequent clauses designate the express powers by which those objects are to be obtained; and a mean is proposed through which to acquire those that may be found still requisite, more fully to effect the purposes of the confederation. it is said, "there is a field of legislation yet unexplored." he had often heard this language; but he confessed he did not understand it. is there a single blade of grass--is there any property in existence in the united states, which is not a subject of legislation, either of the particular states, or of the united states? he contended that the exercise of this power, on the part of the united states, involves, to all intents and purposes, every power which an individual state may exercise. on this principle, he denied the right of congress to make use of a bank to facilitate the collection of taxes. he did not, however, admit the idea, that the institution would conduce to that object. the bank notes are to be equal to gold and silver, and consequently will be as difficult to obtain as the specie. by means of the objects of trade on which gold and silver are employed, there will be an influx of those articles; but paper being substituted, will fill those channels which would otherwise be occupied by the precious metals. this, experience shows, is the uniform effect of such a substitution. the right of congress to regulate trade is adduced as an argument in favor of this of creating a corporation; but what has this bill to do with trade? would any plain man suppose that this bill had any thing to do with trade? he noticed the observation respecting the utility of banks to aid the government with loans. he denied the necessity of the institution to aid the government in this respect. great britain, he observed, did not depend on such institutions; she borrows from various sources. banks, it is said, are necessary to pay the interest of the public debt. then they ought to be established in the places where that interest is paid; but can any man say, that the bank notes will circulate at par in georgia? from the example in scotland, we know that they cannot be made equal to specie, remote from the place where they can be immediately converted into coin; they must depreciate in case of a demand for specie; and if there is no moral certainty that the interest can be paid by these bank bills, will the government be justified in depriving itself of the power of establishing banks in different parts of the union? we reason, and often with advantage, from british models; but in the present instance there is a great dissimilarity of circumstances. the bank notes of great britain do not circulate universally. to make the circumstances parallel, it ought to have been assumed as a fact, that banks are established in various parts of great britain, at which the interest of the national debt is paid; but the fact is, it is only paid in one place. the clause of the constitution which has been so often recurred to, and which empowers congress to dispose of its property, he supposed referred only to the property left at the conclusion of the war, and has no reference to the moneyed property of the united states. the clause which empowers congress to pass all laws necessary, &c., has been brought forward repeatedly by the advocates of the bill; he noticed the several constructions of this clause which had been offered. the conclusion which he drew from the commentary of the gentleman from massachusetts, (mr. gerry,) was, that congress may do what they please; and recurring to the opinion of that gentleman in , he said the powers of the constitution were then dark, inexplicable, and dangerous; but now, perhaps, as the result of experience, they are clear and luminous! the constructions of the constitution, he asserted, which have been maintained on this occasion, go to the subversion of every power whatever in the several states; but we are told, for our comfort, that the judges will rectify our mistakes. how are the judges to determine in the case; are they to be guided in their decisions by the rules of expediency? it has been asked, that if those minute powers of the constitution were thought to be necessary, is it supposable that the great and important power on the table was not intended to be given? mr. m. interpreted this circumstance in a quite different way, viz: if it was thought necessary to specify in the constitution those minute powers, it would follow that more important powers would have been explicitly granted, had they been contemplated. the western territory business, he observed, was a case _sui generis_, and therefore cannot be cited with propriety. west point, so often mentioned, he said, was purchased by the united states, pursuant to law, and the consent of the state of new york is supposed, if it has not been expressly granted; but, on any occasion, does it follow that one violation of the constitution is to be justified by another? the permanent residence bill, he conceived, was entirely irrelative to the subject; but he conceived it might be justified on truly constitutional principles. the act vesting in the president of the united states the power of removability has been quoted; he recapitulated, in a few words, his reasons for being in favor of that bill. the bank of north america he had opposed, as he considered the institution as a violation of the confederation. the state of massachusetts, he recollected, voted with him on that occasion. the bank of north america was, however, the child of necessity; as soon as the war was over, it ceased to operate as to continental purposes. but, asked he, are precedents in war to justify violations of private and state rights in a time of peace? and did the united states pass laws to punish the counterfeiting the notes of that bank? they did not, being convinced of the invalidity of any such law; the bank, therefore, took shelter under the authority of the state. the energetic administration of this government is said to be connected with this institution. mr. m. here stated the principles on which he conceived this government ought to be administered; and added, other gentlemen may have had other ideas on the subject, and may have consented to the ratification of the constitution on different principles and expectations; but he considered the enlightened opinion and affection of the people the only solid basis for the support of this government. mr. m. then stated his objections to the several parts of the bill. the first article he objected to was the duration. a period of twenty years was, to this country, as a period of a century in the history of other countries; there was no calculating for the events which might take place. he urged the ill policy of granting so long a term, from the experience of the government in respect to some treaties, which, though found inconvenient, could not now be altered. the different classes of the public creditors, he observed, were not all put on an equal footing by this bill; but in the bill for the disposal of the western territory this had been thought essential. the holders of six per cent. securities will derive undue advantages. creditors at a distance, and the holders of three per cent. securities, ought to be considered, as the public good is most essentially promoted by an equal attention to the interest of all. i admit, said he, that the government ought to consider itself as the trustee of the public on this occasion, and therefore should avail itself of the best disposition of the public property. in this view of the subject, he objected to the bill, as the public, he thought, ought to derive greater advantages from the institution than those proposed. in case of a universal circulation of the notes of the proposed bank, the profits will be so great that the government ought to receive a very considerable sum for granting the charter. there are other defects in the bill, which render it proper and necessary, in my opinion, that it should undergo a revision and amendment before it passes into a law. the power vested by the bill in the executive to borrow of the bank, he thought was objectionable; and the right to establish subordinate banks ought not to be delegated to any set of men under heaven. the public opinion has been mentioned. if the appeal to the public opinion is suggested with sincerity, we ought to let our constituents have an opportunity to form an opinion on the subject. he concluded by saying, he should move for the previous question. the previous question, "shall the main question now be put?" being determined in the affirmative, mr. gerry rose to reply to mr. madison; but the house discovering an impatience to have the main question put, after a few remarks, he waived any further observations. the yeas and nays were then taken as follows, on the passage of the bill: yeas.--messrs. ames, benson, boudinot, bourne, cadwalader, clymer, fitzsimons, floyd, foster, gerry, gilman, goodhue, hartley, hathorn, heister, huntington, lawrence, leonard, livermore, p. muhlenberg, partridge, rensselaer, schureman, scott, sedgwick, seney, sevier, sherman, sylvester, sinnickson, smith, (of maryland,) smith, (of south carolina,) steele, sturges, thatcher, trumbull, vining, wadsworth, and wynkoop-- . nays.--messrs. ashe, baldwin, bloodworth, brown, burke, carroll, contee, gale, grout, giles, jackson, lee, madison. mathews, moore, parker, stone, tucker, white, and williamson-- . monday, february . _commerce with england._ the following message was received from the president of the united states: _gentlemen of the senate, and house of representatives:_ soon after i was called to the administration of the government, i found it important to come to an understanding with the court of london, on several points interesting to the united states; and particularly to know whether they were disposed to enter into arrangements, by mutual consent, which might fix the commerce between the two nations on principles of reciprocal advantage. for this purpose, i authorized informal conferences with their ministers; and from these, i do not infer any disposition, on their part, to enter into any arrangements merely commercial. i have thought it proper to give you this information, as it might, at some time, have influence on matters under your consideration. geo. washington. united states, _february , _. thursday, march . _jails of the states._ on motion that the house do come to the following resolution: whereas congress did, by a resolution of the d of september, , recommend to the several states to pass laws making it expressly the duty of the keepers of their jails to receive, and safely keep therein, all prisoners committed under authority of the united states: in order, therefore, to ensure the administration of justice: _resolved by the senate and house of representatives of the united states of america in congress assembled_, that, in case any state shall not have complied with the said recommendation, the marshal in such state, under the direction of the judge of the district, be authorized to hire a convenient place to serve as a temporary jail, and to make the necessary provision for the safe-keeping of prisoners committed under the authority of the united states, until permanent provision shall be made by law for that purpose; and the said marshal shall be allowed his reasonable expenses incurred for the above purposes, to be paid out of the treasury of the united states. it was resolved in the affirmative. _session closed._ the business of the session being gone through, on motion, _resolved_, that the thanks of the house of representatives of the united states be presented to frederick augustus muhlenberg, in testimony of their approbation of his conduct in the chair, and in the execution of the difficult and important trust reposed in him as speaker of the said house. it was resolved, unanimously: whereupon mr. speaker made his acknowledgments to the house, in manner following: _gentlemen of the house of representatives:_ this unexpected mark of your approbation of my conduct has made so deep an impression on my mind, that i cannot find words to express the high sense of gratitude i entertain on this occasion. i have not vanity sufficient to suppose that my feeble, though well-meant, endeavors merit so great a reward; for it was your kind indulgence and support alone which enabled me to go through the duties of the station which you were pleased to assign me; but i shall ever consider this distinguished and honorable testimony as the most fortunate circumstance in my life. gentlemen, i most sincerely thank you. may every possible happiness attend you and every individual of this body, and may your zealous endeavors to promote the welfare of our beloved country, which i have so long and so often been a witness to, be crowned with unbounded success. _ordered_, that a message be sent to the senate, to inform them that this house, having completed the business before them, are now about to adjourn without day, and that the clerk of this house do go with the said message. the clerk accordingly went with the said message, and being returned, a message was received from the senate, notifying that the senate, having completed the legislative business before them, are now about to adjourn; whereupon, mr. speaker adjourned the house without day. second congress.--first session. held at the city of philadelphia, october , , to may , . list of members. senators. _new hampshire._--john langdon, paine wingate. _vermont._--s. r. bradley, moses robinson. _massachusetts._--george cabot, caleb strong. _rhode island._--theodore foster, joseph stanton. _connecticut._--oliver ellsworth, roger sherman. _new york._--aaron burr, rufus king. _new jersey._--philemon dickinson, john rutherford. _pennsylvania._--robert morris, james ross. _delaware._--richard bassett, george read. _maryland._--charles carroll, john henry. _virginia._--richard h. lee, james monroe. _north carolina._--benjamin hawkins, samuel johnston. _south carolina._--pierce butler, ralph izard. _georgia._--william few, james gunn. representatives. _new hampshire._--nicholas gilman, s. livermore, jeremiah smith. _vermont._--nathaniel niles, israel smith. _massachusetts._--fisher ames, s. bourne, elbridge gerry, benjamin goodhue, george leonard, t. sedgwick, george thatcher, artemas ward. _rhode island._--benjamin bourne. _connecticut._--james hillhouse, amasa learned, jonathan sturges, jonathan trumbull, jeremiah wadsworth. _new york._--egbert benson, james gordon, john laurance, c. c. schoonmaker, peter sylvester, t. tredwell. _new jersey._--elias boudinot, jonathan dayton, aaron kitchell. _pennsylvania._--william findlay, thomas fitzsimons, andrew gregg, thomas hartley, daniel heister, israel jacobs, john w. kittera, frederick a. muhlenberg. _delaware._--john vining. _maryland._--philip key, william pinkney, joshua seney, updine sheredine, samuel sterrett, william vans murray. _virginia._--john browne, william b. giles, samuel griffin, richard bland lee, james madison, andrew moore, john page, josiah parker, a. b. venable, alexander white. _north carolina._--john b. ashe, timothy bloodworth, william b. grove, nathaniel macon, john sevier, john steele, hugh williamson. _south carolina._--robert barnwell, daniel huger, william smith, thomas sumter, thomas tudor tucker. _georgia._--abraham baldwin, anthony wayne, francis willis. proceedings in the senate. monday, october , . this being the day fixed by law for the annual meeting of congress, at the first session of the second congress, the following members of the senate appeared, produced their credentials, and took their seats: john adams, vice president and president of the senate. john langdon and paine wingate, from new hampshire. caleb strong and george cabot, from massachusetts. theodore foster and joseph stanton, jr., from rhode island. roger sherman, from connecticut, in the place of william s. johnson, resigned. aaron burr, from new york. philemon dickinson and john rutherford, from new jersey. robert morris, from pennsylvania. george read, from delaware. samuel johnston and benjamin hawkins, from north carolina. pierce butler and ralph izard, from south carolina; and william few, from georgia. _ordered_, that messrs. butler, morris, and dickinson, be a committee to wait on the president of the united states, and inform him that a quorum of the senate is assembled, and ready to receive any communication he may be pleased to make to them. _ordered_, that the secretary acquaint the house of representatives that a quorum of the senate is assembled and ready to proceed to business; and that they have notified the president of the united states that they are ready to receive such communications as he may be pleased to make to them. mr. izard, from the joint committee appointed to wait on the president of the united states, agreeably to the resolution of the two houses, of this day, reported that they had executed the business, and that the president of the united states proposed to-morrow, at o'clock, to meet the two houses of congress in the senate chamber. tuesday, october . _ordered_, that the secretary inform the house of representatives that the senate are ready to meet them in the senate chamber, to receive any communications the president of the united states may be pleased to make to the two houses of congress; and that the usual seats will be assigned them. the house of representatives having accordingly taken their seats, the president of the united states came into the senate chamber, and addressed both houses of congress as followeth:[ ] _fellow-citizens of the senate, and of the house of representatives:_ i meet you upon the present occasion with the feelings which are naturally inspired by a strong impression of the prosperous situation of our common country, and by a persuasion, equally strong, that the labors of the session which has just commenced will, under the guidance of a spirit no less prudent than patriotic, issue in measures conducive to the stability and increase of national prosperity. numerous as are the providential blessings which demand our grateful acknowledgments, the abundance with which another year has again rewarded the industry of the husbandman is too important to escape recollection. your own observations in your respective situations will have satisfied you of the progressive state of agriculture, manufactures, commerce, and navigation. in tracing their causes, you will have remarked, with particular pleasure, the happy effects of that revival of confidence, public as well as private, to which the constitution and laws of the united states have so eminently contributed; and you will have observed, with no less interest, new and decisive proofs of the increasing reputation and credit of the nation. but you, nevertheless, cannot fail to derive satisfaction from the confirmation of these circumstances, which will be disclosed in the several official communications that will be made to you in the course of your deliberations. the rapid subscriptions to the bank of the united states, which completed the sum allowed to be subscribed in a single day, is among the striking and pleasing evidences which present themselves, not only of confidence in the government, but of resource in the community. in the interval of your recess, due attention has been paid to the execution of the different objects which were specially provided for by the laws and resolutions of the last session. among the most important of these, is the defence and security of the western frontiers. to accomplish it on the most humane principles was a primary wish. accordingly, at the same time that treaties have been provisionally concluded, and other proper means used to attach the wavering, and to confirm in their friendship the well-disposed tribes of indians, effectual measures have been adopted to make those of a hostile description sensible that a pacification was desired upon terms of moderation and justice. these measures having proved unsuccessful, it became necessary to convince the refractory of the power of the united states to punish their depredations. offensive operations have therefore been directed, to be conducted, however, as consistently as possible with the dictates of humanity. some of these have been crowned with full success, and others are yet depending. the expeditions which have been completed were carried on under the authority, and at the expense, of the united states, by the militia of kentucky; whose enterprise, intrepidity, and good conduct are entitled to peculiar commendation. overtures of peace are still continued to the deluded tribes, and considerable numbers of individuals belonging to them have lately renounced all further opposition, removed from their former situations, and placed themselves under the immediate protection of the united states. it is sincerely to be desired, that all need of coercion in future may cease; and that an intimate intercourse may succeed, calculated to advance the happiness of the indians, and to attach them firmly to the united states. in order to this, it seems necessary-- that they should experience the benefits of an impartial dispensation of justice. that the mode of alienating their lands, the main source of discontent and war, should be so defined and regulated as to obviate imposition, and, as far as may be practicable, controversy concerning the reality and extent of the alienations which are made. that commerce with them should be promoted under regulations tending to secure an equitable deportment towards them, and that such rational experiments should be made, for imparting to them the blessings of civilization, as may from time to time suit their condition. that the executive of the united states should be enabled to employ the means to which the indians have been long accustomed for uniting their immediate interests with the preservation of peace. and that efficacious provision should be made for inflicting adequate penalties upon all those who, by violating their rights, shall infringe the treaties, and endanger the peace of the union. a system corresponding with the mild principles of religion and philanthropy towards an unenlightened race of men, whose happiness materially depends on the conduct of the united states, would be as honorable to the national character as conformable to the dictates of sound policy. pursuant to the authority contained in the several acts on that subject, a district of ten miles square, for the permanent seat of the government of the united states, has been fixed, and announced by proclamation; which district will comprehend lands on both sides of the river potomac, and the towns of alexandria and georgetown. a city has also been laid out, agreeably to a plan which will be placed before congress. and, as there is a prospect, favored by the rate of sales which have already taken place, of ample funds for carrying on the necessary public buildings, there is every expectation of their due progress. the completion of the census of the inhabitants, for which provision was made by law, has been duly notified, (excepting one instance in which the return has been informal; and another, in which it has been omitted or miscarried,) and the returns of the officers who were charged with this duty, which will be laid before you, will give you the pleasing assurance, that the present population of the united states borders on four millions of persons. _gentlemen of the senate:_ two treaties which have been provisionally concluded with the cherokees and six nations of indians, will be laid before you for your consideration and ratification. _gentlemen of the house of representatives:_ in entering upon the discharge of your legislative trust, you must anticipate, with pleasure, that many of the difficulties, necessarily incident to the first arrangements of a new government, for an extensive country, have been happily surmounted by the zealous and judicious exertions of your predecessors, in co-operation with the other branch of the legislature. the important objects which remain to be accomplished, will, i am persuaded, be conducted upon principles equally comprehensive, and equally well calculated for the advancement of the general weal. it is particularly pleasing to me to be able to announce to you that the revenues which have been established promise to be adequate to their objects, and maybe permitted, if no unforeseen exigency occurs, to supersede, for the present, the necessity of any new burdens upon our constituents.[ ] an object which will claim your early attention is a provision for the current service of the ensuing year, together with such ascertained demands upon the treasury as require to be immediately discharged, and such casualties as may have arisen in the execution of the public business, for which no specific appropriation may have yet been made; of all which a proper estimate will be laid before you. _gentlemen of the senate, and of the house of representatives:_ i shall content myself with a general reference to former communications for several objects, upon which the urgency of other affairs has hitherto postponed any definitive resolution. their importance will recall them to your attention; and, i trust that the progress already made in the most arduous arrangements of the government will afford you leisure to resume them with advantage. there are, however, some of them of which i cannot forbear a more particular mention. these are: the militia, the post office and post roads, the mint, weights and measures, and a provision for the sale of the vacant lands of the united states. the disorders in the existing currency, and especially the scarcity of small change, a scarcity so peculiarly distressing to the poorer classes, strongly recommend the carrying into immediate effect the resolution already entered into concerning the establishment of a mint. measures have been taken pursuant to that resolution for procuring some of the most necessary artists, together with the requisite apparatus. a provision for the sale of the vacant lands of the united states is particularly urged, among other reasons, by the important considerations, that they are pledged as a fund for reimbursing the public debt; that, if timely and judiciously applied, they may save the necessity of burthening our citizens with new taxes for the extinguishment of the principal; and that, being free to discharge the principal but in a limited proportion, no opportunity ought to be lost for availing the public of its right. g. washington. united states, _october , _. the president of the united states having retired, and the two houses being separated, _ordered_, that messrs. burr, cabot, and johnston, be a committee to prepare and report the draft of an address to the president of the united states, in answer to his speech delivered this day to both houses of congress. _ordered_, that the speech of the president of the united states, delivered this day, be printed for the use of the senate. wednesday, october . rufus king, from the state of new york, and john henry, from the state of maryland, attended. thursday, october . the following message was received from the president of the united states: _gentlemen of the senate and of the house of representatives:_ i lay before you a copy of a letter, and of sundry documents, which i have received from the governor of pennsylvania, respecting certain persons who are said to have fled from justice out of the state of pennsylvania, into that of virginia; together with a report of the attorney general of the united states upon the same subject. i have received from the governor of north carolina a copy of an act of the general assembly of that state, authorizing him to convey to the united states the right and jurisdiction of the said state over one acre of land in ocracock island, and ten acres on the cape island, within the said state, for the purpose of erecting light-houses thereon, together with the deed of the governor, in pursuance thereof, and the original conveyances made to the state by the individual proprietors, which original conveyances contain conditions that the light-house on ocracock shall be built before the first day of january, , and that on the cape island, before the eighth day of october, . and i have caused these several papers to be deposited in the office of the secretary of state. a statement of the returns of the enumeration of the inhabitants of the united states, which have been received, will at this time be laid before you. g. washington. united states, _october , _. mr. burr reported, from the committee appointed to prepare an address to the president of the united states, in answer to his speech to both. houses of congress at the opening of the session. _ordered_, that to-morrow be assigned to take the report into consideration. friday, october . agreeably to the order of the day, the senate proceeded to take into consideration the address reported by the committee, in answer to the speech of the president of the united states, on the th instant, to both houses of congress; which report was agreed to, as follows: _to the president of the united states:_ sir: the senate of the united states have received with the highest satisfaction the assurances of public prosperity contained in your speech to both houses. the multiplied blessings of providence have not escaped our notice, or failed to excite our gratitude. the benefits which flow from the restoration of public and private confidence are conspicuous and important; and the pleasure with which we contemplate them is heightened by your assurance of those further communications which shall confirm their existence and indicate their source. while we rejoice in the success of those military operations which have been directed against the hostile indians, we lament with you the necessity that has produced them; and we participate the hope that the present prospect of a general peace, on terms of moderation and justice, may be wrought into complete and permanent effect; and that the measures of government may equally embrace the security of our frontiers and the general interests of humanity. our solicitude to obtain which, will insure our zealous attention to an object so warmly espoused by the principles of benevolence, and so highly interesting to the honor and welfare of the nation. the several subjects which you have particularly recommended, and those which remain of former sessions, will engage our early consideration. we are encouraged to prosecute them with alacrity and steadiness, by the belief that they will interest no passion but that for the general welfare; by the assurance of concert, and by a view of those arduous and important arrangements which have been already accomplished. we observe, sir, the constancy and activity of your zeal for the public good. the example will animate our efforts to promote the happiness of our country. _ordered_, that the address to the president of the united states, in answer to his speech, be presented by the vice president, attended by the senate; and that the committee which reported the address wait on the president of the united states, and desire to be informed at what time and place he will receive the same. monday, october . james monroe, from the state of virginia, attended, and took his seat. moses robinson, from the state of vermont, produced his credentials, and took his seat in the senate. mr. burr, from the committee appointed on the th to wait on the president of the united states, reported, that it would be agreeable to the president of the united states to receive the address of the senate, in answer to his speech to both houses of congress, on monday next at o'clock. whereupon, the senate waited on the president of the united states at his own house, and the vice president, in their name, communicated to him the address agreed to on the th instant, to which the president of the united states was pleased to make the following reply: gentlemen: this manifestation of your zeal for the honor and the happiness of our country derives its full value from the share which your deliberations have already had in promoting both. i thank you for the favorable sentiments with which you view the part i have borne in the arduous trust committed to the government of the united states; and desire you to be assured that all my zeal will continue to second those further efforts for the public good which are ensured by the spirit in which you are entering on the present session. g. washington. the senate returned to the senate chamber. friday, november . stephen r. bradley, from the state of vermont, appeared, produced his credentials, and took his seat. wednesday, november . oliver ellsworth, from the state of connecticut, attended, and took his seat. thursday, november . james gunn, from the state of georgia, attended, and took his seat. friday, january . charles carroll, from the state of maryland, attended, and took his seat. monday, january . richard bassett, from the state of delaware, attended, and took his seat. monday, march . the following message was received from the president of the united states: _gentlemen of the senate, and of the house of representatives:_ knowing the friendly interest you take in whatever may promote the happiness and prosperity of the french nation, it is with pleasure that i lay before you the translation of a letter which i have received from his most christian majesty, announcing to the united states of america his acceptance of the constitution presented to him in the name of his nation. g. washington. united states, _march , _. [translation.] _very dear, great friends and allies:_ we make it our duty to inform you that we have accepted the constitution which has been presented to us in the name of the nation, and according to which france will be henceforth governed. we do not doubt that you take an interest in an event so important to our kingdom, and to us; and that it is with real pleasure we take this occasion to renew to you assurances of the sincere friendship we bear you. whereupon, we pray god to have you, very dear, great friends and allies, in his just and holy keeping. written at paris, the th of september, . your good friend and ally, louis. montmorin. the united states of north america. tuesday, march . the senate resumed the consideration of the motion made yesterday on the message from the president of the united states, transmitting a copy of a letter from his most christian majesty to the united states of america. a motion was made and seconded to postpone this motion, in order to take up the following: "_resolved_, that the president of the united states be informed that the senate have received with satisfaction the official intelligence that the king of the french has accepted the constitution presented to him by the national assembly, and are highly gratified by every event that promotes the freedom and prosperity of the french nation and the happiness and glory of their king." it passed in the negative; yeas , nays --as follows: yeas.--messrs. bassett, cabot, ellsworth, king, strong, and wingate. nays.--messrs. bradley, burr, butler, carroll, dickinson, few, foster, gunn, hawkins, henry, johnston, izard, langdon, lee, monroe, morris, read, robinson, rutherford, stanton, and sherman. the original motion, being amended, was agreed to. whereupon, it was _resolved_, that the president be requested to make known to the king of the french, that the senate of the united states have received with the highest satisfaction the official communication of his acceptance of the constitution which, it is their earnest wish, may establish, on a solid basis, the freedom and prosperity of the french nation, and the happiness and glory of the monarch presiding over it. wednesday, march . _ordered_, that the resolution of the senate, on the message of the president of the united states, enclosing the letter from his most christian majesty, be signed by the vice president, and laid before the president of the united states, by the secretary. monday, march . a motion was made by mr. monroe, seconded by mr. lee, as follows: "_resolved_, that it be a standing rule, that the doors of the senate chamber remain open whilst the senate shall be sitting in their legislative capacity, except on such occasions as in their judgment may require secrecy; and that this rule shall commence and be in force on the first day of the next session of congress;" and it passed in the negative--yeas , nays , as follows: yeas.--messrs. butler, carroll, foster, hawkins, johnston, king, lee, and monroe. nays.--messrs. bassett, bradley, cabot, dickinson, ellsworth, few, gunn, henry, izard, langdon, read, robinson, rutherford, sherman, stanton, strong, and wingate. wednesday, april . the vice president being absent, the senate proceeded to the election of a president _pro tempore_ as the constitution provides, and the hon. richard henry lee was duly elected. _ordered_, that the secretary wait on the president of the united states, and lay before him an attested copy of this proceeding, and that he notify the house of representatives of the election of a president _pro tempore_. thursday, april . _resolved_, that the president _pro tempore_ of the senate, as a member, retain his right to vote upon all questions. tuesday evening, may . a message from the house of representatives informed the senate that the house of representatives, having completed the business before them, are about to adjourn. in conformity to the resolution of the th instant, the president _pro tempore_ adjourned the senate to the first monday in november next, being the time appointed by law for the next annual meeting of congress. second congress.--first session. proceedings and debates in the house of representatives. monday, october , . this being the day appointed by law for the meeting of the present congress, the following members appeared, produced their credentials, and took their seats: _from new hampshire_, nicholas gilman, samuel livermore, and jeremiah smith. _from massachusetts_, fisher ames, shearjashub bourne, elbridge gerry, benjamin goodhue, george thatcher, and artemas ward. _from rhode island_, benjamin bourne. _from connecticut_, james hillhouse, jonathan sturges, jonathan trumbull, jeremiah wadsworth, and amasa learned. _from new york_, james gordon, john laurance, peter sylvester, and thomas tredwell. _from new jersey_, elias boudinot. _from pennsylvania_, thomas fitzsimons, daniel heister, and frederick augustus muhlenberg. _from delaware_, john vining. _from maryland_, joshua seney, and samuel sterrett. _from virginia_, john brown, william b. giles, samuel griffin, james madison, andrew moore, and alexander white. _from north carolina_, john steele, and hugh williamson. _from south carolina_, daniel huger, william smith, and thomas tudor tucker. _from georgia_, francis willis. a quorum of the members being present, the house proceeded to ballot for speaker, when it appeared that jonathan trumbull, from connecticut, was elected. on being conducted to the chair, mr. trumbull addressed the house as follows: gentlemen: i find myself unable to express to you the full sense i have of the distinguished honor you have done me in the choice of your speaker. the diffidence i feel in my abilities to discharge, with propriety, the duties of the chair, is almost insuperable in my own mind. but, encouraged by the known candor of this honorable body, and depending, as i think i may confidently do, on the kind assistance of each individual in it, i shall enter on its duties, with full assurances to you, gentlemen, that i shall endeavor to conduct myself with that impartiality, integrity, and assiduity, which become the conspicuous station in which you have been pleased to place me. the house then proceeded to ballot for a clerk, when there appeared a unanimous vote for john beckley. the oath to support the constitution was then administered to the members present, and the oath of office to the speaker and clerk. _ordered_, that the speaker appoint committees until the house shall otherwise determine. a message was received from the senate, informing the house that a quorum of that body is assembled and ready to proceed to business; and that the senate have informed the president of the united states that they are ready to receive any communications he may be pleased to make to them. _resolved_, that mr. smith, of south carolina, mr. laurance, and mr. white, be a committee on the part of this house, to act jointly with the committee from the senate, to wait on the president. _ordered_, that a committee be appointed to prepare and report standing rules and orders of proceeding for the house. messrs. muhlenberg, tucker, williamson, ames, and smith, of new hampshire, were named. joseph wheaton was appointed sergeant-at-arms; and gifford dalley, doorkeeper, and thomas claxton, assistant doorkeeper. _resolved_, that two chaplains, of different denominations, be appointed to congress for the present session, to interchange weekly. mr. smith, from the joint committee appointed to wait on the president of the united states, reported that the president would make a communication to both houses to-morrow at twelve o'clock, in the senate chamber. a message from the senate announced the agreement of that body to the resolution of this house for the appointment of two chaplains, and had elected the right reverend bishop white, on their part. tuesday, october . the following members appeared, presented their credentials, and took their seats: abraham clark, jonathan dayton, and aaron kitchell, from new jersey; and israel jacobs, from pennsylvania. the house proceeded to ballot for a chaplain, when a majority of the votes were found in favor of the rev. mr. blair. a message being received from the senate, stating that they were ready to receive the communication from the president of the united states, the speaker, attended by the members of the house, withdrew to the senate chamber for the purpose of receiving the same. on the return of the members, the speaker laid before the house a copy of the speech delivered by the president, (which will be found in the proceedings of the senate.) the speech was committed to a committee of the whole to-morrow. wednesday, october . _president's speech._ the house then went into committee of the whole, on the president's speech, mr. muhlenberg in the chair. the speech being read, mr. vining moved a resolution, of which the following is the purport: "_resolved_, that it is the opinion of this committee that an address should be presented to the president of the united states by the house of representatives, in answer to his speech, to congratulate him on the prosperous situation of the united states, expressive of the approbation of the house of the wise and prudent measures he has pursued during their recess, in the execution of the duties committed to his charge: promising speedy attention to the important and momentous objects recommended to their consideration, and expressing their approbation of the humane and effectual steps taken, under his direction, for the defence of the western frontiers." this resolution was objected to by messrs. laurance, sedgwick, smith, (of south carolina,) and livermore, upon the principle, that it expressed the sense of the house upon points which required further information and investigation before the house could, with propriety, determine. it was difficult to say, before proper documents were laid before the house, whether the measures adopted for the defence of the western frontiers were the most prudent that could be adopted. it was impossible positively to assert, that the president, in the execution of the duties assigned him in carrying into effect the excise act, had done all for the best. every member that spoke agreed in expressing his individual opinion, that no doubt the president had acted with his wonted prudence and wisdom in the execution of the trusts reposed in him; but also agreed that it was improper, indeed, it was no compliment paid to the president, to approve, before a formal examination. in answer to these objections it was observed, that so far as circumstances had been made known to the members, relative to the steps taken by the president during the recess of the federal legislature, so far they claimed the approbation of the house; and that the opinion of the house was only meant to be given as far as they were informed. it was urged, that the answer of the house should be a candid expression of their feelings; feelings which the prosperous situation of the country undoubtedly called forth, and which the issue of the measures adopted could not fail to excite. several modifications were proposed to the resolution, which was finally agreed to, as follows: "_resolved_, that it is the opinion of this committee that a respectful address ought to be presented by the house of representatives to the president of the united states, in answer to his speech to both houses of congress at the commencement of this session, containing assurances that this house will take into consideration the various and important matters recommended to their attention." mr. madison, mr. laurance, and mr. smith, (of south carolina,) were appointed a committee to prepare an address, pursuant to the resolution. thursday, october . mr. madison, from the committee appointed, reported an address to the president of the united states, in answer to his speech to both houses of congress; which was read, and ordered to be committed to a committee of the whole house immediately. _address to the president._ the house accordingly resolved itself into a committee of the whole house on the said address; and, after some time spent therein, mr. muhlenberg reported that the committee had had the said address under consideration, and made no amendment thereto. whereupon, it was _resolved, unanimously_, that this house doth agree to the said address, in the words following: sir: in receiving your address, at the opening of the present session, the house of representatives have taken an ample share in the feelings inspired by the actual prosperity and flattering prospects of our country; and whilst, with becoming gratitude to heaven, we ascribe this happiness to the true source from which it flows, we behold with an animating pleasure the degree in which the constitution and laws of the united states have been instrumental in dispensing it. it yields us particular satisfaction to learn the success with which the different important measures of the government have proceeded; as well those specially provided for the last session, as those of preceding date. the safety of our western frontier, in which the lives and repose of so many of our fellow-citizens are involved, being peculiarly interesting, your communications on that subject are proportionally grateful to us. the gallantry and good conduct of the militia, whose services were called for, is an honorable confirmation of the efficacy of that precious resource of a free state. and we anxiously wish that the consequences of their successful enterprises, and of the other proceedings to which you have referred, may leave the united states free to pursue the most benevolent policy towards the unhappy and deluded race of people in our neighborhood. the amount of the population of the united states, determined by the returns of the census, is a source of the most pleasing reflections, whether it be viewed in relation to our national safety and respectability, or as a proof of that felicity in the situation of our country, which favors so unexampled a rapidity in its growth. nor ought any to be insensible to the additional motive suggested by this important fact to perpetuate the free government established with a wise administration of it, to a portion of the earth which promises such an increase of the number which is to enjoy those blessings within the limits of the united states. we shall proceed with all the respect due to your patriotic recommendations, and with a deep sense of the trust committed to us by our fellow-citizens, to take into consideration the various and important matters falling within the present session; and, in discussing and deciding each, we shall feel every disposition, whilst we are pursuing the public welfare, which must be the supreme object with all our constituents, to accommodate, as far as possible, the means of attaining it to the sentiments and wishes of every part of them. mr. madison, from the committee appointed to wait on the president of the united states, to know when and where it will be convenient for him to receive the address of this house, in answer to his speech to both houses of congress, reported that the committee had waited on the president, who signified to them that it would be convenient to him to receive the said address at twelve o'clock to-morrow, at his own house. friday, october . the speaker, attended by the house, then withdrew to the house of the president of the united states, and there presented to him the address of this house, in answer to his speech to both houses of congress; to which the president made the following reply: _gentlemen:_ the pleasure i derive from an assurance of your attention to the objects i have recommended to you is doubled by your concurrence in the testimony i have borne to the prosperous condition of our public affairs. relying on the sanctions of your enlightened judgment, and on your patriotic aid, i shall be the more encouraged in all my endeavors for the public weal, and particularly in those which may be required on my part for executing the salutary measures i anticipate from your present deliberations. g. washington. monday, october . several other members, to wit: from vermont, nathaniel niles and israel smith; from maryland, upton sheridine; from north carolina, william barry grove; and from south carolina, robert barnwell; appeared, produced their credentials, and took their seats in the house. tuesday, november . anthony wayne, member from georgia, and josiah parker, from virginia, took their seats this day. thursday, november . two other members, to wit, richard bland lee and john page, from virginia, appeared, produced their credentials, and took their seats in the house. friday, november . another member, to wit, egbert benson, from new york, appeared, produced his credentials, and took his seat in the house. monday, november . several other members, to wit: from pennsylvania, william findlay; from north carolina, john baptist ashe; and from georgia, abraham baldwin; appeared, produced their credentials, and took their seats in the house. tuesday, november . another member, to wit, andrew gregg, from pennsylvania, appeared, produced his credentials, and took his seat in the house. _john torrey._ the house resolved itself into a committee of the whole house on the report of the secretary of war on the petition of john torrey, administrator of major joseph torrey, deceased. mr. ames objected to the motion for accepting the report of the secretary of war. he said, it must be apparent that he was placed by accident in a relation to the subject in debate, which he should not have adopted of choice. with very little knowledge of the parties and their connections, and the interests that would be involved by the decision, he seemed to be considered as standing sponsor for the petitioner. he might justify this active support of the petition, by assigning motives which were common to other gentlemen; but as they have continued silent, i will assign a reason for speaking, which is peculiar to myself. nothing excites a person to a more fervid defence of his opinions, than the supposed discovery that they are misunderstood, and the force of the reasons on which he had formed them unduly estimated. congress promised half-pay to the officers who should continue in service _to the end of the war_. this was afterwards made a commutation for half-pay. major torrey continued in service till september, , when he died. the question is, did he continue in service to the end of the war? the provisional articles of peace were signed on the th november, ; but they were to remain without force till terms of peace should be agreed upon between great britain and france. this took place on the th january, , and the ratifications were exchanged on the d february, , at paris. the provisional treaty between great britain and america was then _a treaty of peace_, and according to the words of that treaty was _concluded_. accordingly, on the th april, , congress by a proclamation made known those facts, and the stipulations made, in regard to the periods when hostilities should cease, by the contracting parties to the treaty. hostilities did cease, and before the end of april, , all america was in perfect peace. the late hostile nations shook hands, our vessels sailed in safety, and by sea and land reconciliation succeeded to hostility. but did all this put an end to the war? the children in the street would answer this question: they would say, it is peace when it is not war. of all facts, the most notorious seems to be the state of war; and it is the fact that the war was at an end, (and not any after resolve of congress,) that the commutation of major torrey was made to hinge upon. when the meaning of a bargain is disputed, it is usual to search out the intention of the contracting parties when it was made. supposing, instead of interpreting a resolve of congress, any twelve of this body had to try a case between two private persons; suppose that a man had given his note of hand for a sum to be paid at the _end of the war_. would twelve of this house, or would any jury in the country say that the war continued longer than hostilities? in private life, a man would think it touched his character to refuse paying his note in such case. surely a government ought to perform its promise with as much delicacy and exactness. congress did not promise the half-pay, and afterward the commutation, on the condition that a man should serve till they should think proper to say the war was at an end. he depended on the stubborn _fact_ that it did end, which no resolution of congress could change; and not on the refining opinion when the officers might safely be discharged--for that we see might be differently formed, according to the different views of policy and safety at the time. an officer having this promise of congress, has a right to this commutation on the cessation of hostilities, in pursuance of the treaty. if this is disputed, the meaning of the words, "_the end of the war_," should be decided as it was understood at the time of the promise. will any one believe that the d november, , was the term, after the state of war and all the treaties which put an end to it, had been long passed? if any doubt still remains, writers on the law of nations should be consulted. for the officer may justly claim an execution of the promise according to law; that is the umpire between government and the people. on appealing to the law of nations, we find that war is defined to be "the state in which a nation prosecutes its right by force." "peace is opposed to the state of war--an accommodation is proposed and conditions agreed on, and thus peace puts an end to war." "when the powers at war agree to lay down their arms, the agreement is the treaty of peace." "the general and necessary effects of peace, are the reconciliation of enemies and the cessation of hostilities; it restores the two nations to their natural state." would any jury in this country say, that the matter of fact and the principles of law were not in favor of the petition? apply these maxims of law to the case. the provisional articles of november, , were of themselves nothing, it is true, but they were to constitute the treaty of peace, whenever great britain and france had agreed on the terms of peace. as these two powers did agree on the th january, and ratified the terms on the d february, , _then_ the provisional articles, to use the very words of the preamble, did _constitute the treaty of peace_; it was _then_ a _concluded_ thing; and peace in fact took place in the several parts of the world on the appointed days. it has been said, that the preliminaries were no more than a suspension of arms--that the state of war still continues, until a _definitive_ treaty. to this it is answered, that preliminaries bind the national faith; if violated, the perjured faithless nation would kindle a new war. by the law of nations there is not such a distinction as that which is alleged, between preliminary and definitive treaties. let the authorities for such a distinction be produced by those who make it. but they do not exist--a truce does not put an end to a war--a truce is, however, a suspension of war for a specified term. at the end of this term, the war begins again, of course, without any fresh declaration. but a suspension of hostilities for an indefinite period, is not a truce, but a peace; especially if it is added, that it is agreed upon by the belligerent nations in consequence of a settlement of their disputes, and if it happens in fact that the war is not revived. those who make so much of a definitive treaty, and so light of preliminaries, should consider that, on their own system, the former is a kind of defeasance which annuls the latter. but when the definitive treaty is signed, the preliminaries, which before were liable to be annulled, now become of force, and the treaty, now become indefeasible, takes its date from the preliminaries. though this mode of reasoning has not much weight on my mind, it ought to have some with those who have set up the distinction which it is adduced to overthrow. these are the reasons on which i have formed my opinion that the war ended in fact in april, , when hostilities ceased by mutual agreement of the powers at war. my opinion is supported by authority much more reputable than any i can give to it. the law courts in this country have decided it judicially; cases of captured vessels, and the question of interest on british debts, have produced decisions in every state of the union, unless i am misinformed, that the war ended in march or april, . the courts in england, and in every country where the war spread, on trials of property, have made similar decisions. major torrey died in september, ; shall this body decide against the settled rule of all the law courts? it remains to remove some objections: it is alleged, that congress have by various resolves fixed the period of the war, and have declared that the d november, , is the term. if they had declared that it should be computed from the end of the world, it would not alter the truth of the fact. _after_ declarations ought not to be received to change their own promises. but a declaration, or a dozen of them, made for another purpose, and not to declare the meaning of the contract, cannot on any principle be received to interpret it. it is not necessary, however, to contend against those resolves of congress. they are irreconcilable with the former engagement to major torrey. in undertaking to reconcile them, i feel that i impose a task on myself, which is made heavy by the prepossessions of many of my friends; i believe the minds of gentlemen are perfectly fair, and well-disposed to doing the petitioner justice. but i hope i shall not be thought to intend any offence, when i remark that certain ideas, such as that this claim is cut off by resolves of congress, and that on allowing it, confusion would take place in the business of the public offices, were started with the discussion, and they have remained so woven into the texture of the debate, that i think it hard to unravel them. it was soon manifested that there was a general disposition to vote against the petition. this opportunity for debate seems to have been accorded as of grace, rather than as a means of removing any existing doubts of their own. having adopted these opinions, this is rather a form of refusal than a mode of inquiring; and it seems to have been chosen with every circumstance of decency, and with all possible steadfastness of purpose. yet i will proceed to state, that the point whether the war was at an end when hostilities ended in april, , being already considered fully, we are to look for other reasons than such as relate to the commutation, to explain the resolves of congress which continued the service of the officers beyond the end of the war, and as late as november, . a mistake seems to have crept in here. it seems to be supposed that the officers were engaged to serve to the end of the war, just long enough to secure their commutation. but the commutation depended on one thing--the term of their service on another. the former was their right at the end of the war; but they were to remain in service till dismissed, unless they should think fit sooner to resign. they held their commissions during the pleasure of congress. though when the war ended they had a right to the commutation, they had no right to say their service was at an end. they did not choose to resign: congress, for wise reasons, did not choose to dismiss them. a foreign army was still in new york. they were sent home on furlough, but drawing pay, and liable to be called into the field. congress, in their resolves, did not say that it was not peace, but in effect that it was unsafe to disarm. gentlemen are not well agreed among themselves as to the end of the war. some fix it at the definitive treaty of september , ; others at november . their conclusions agree as illy with their principles; for if the definitive treaty put an end to the war, how can the same gentlemen say that the war was kept alive, on the journals of congress, till november, ? here, then, were peace and war subsisting quietly together during two months. the fears of making confusion by opening a door to many applications, seem to be groundless. a man must have died between the end of hostilities and november, , to place a claim on the like footing. the living have had their commutations; they cannot come: and no other officer died in that period, as far as i can learn. i have inquired, and cannot find at the office of the secretary of war any precedent which militates with this claim, or any reason to suppose that any similar one will be offered. the case is a new one; it stands alone, and probably ever will, and it must be decided on its own merits. believing the fact to be indisputable that major torrey served to the end of the war, confiding in the principles of the law of nations, and the settled decisions of the judicial courts, i have endeavored to explain my ideas with perspicuity, and to impress them with force. i have said more than questions touching an individual will often be found to merit; but when public principles are construed to the prejudice of private rights, the debate cannot be treated too seriously. mr. boudinot said, he differed in opinion from the gentleman in his construction of the business. he did not coincide in the idea that the decision of the present question should be on a strictly judicial principle. the petition is founded on certain resolutions and laws of congress; and as there are certain established rules which have been observed in settling with every other officer similarly circumstanced, congress cannot now with propriety break through those rules; to these they ought to adhere, till by the decision of some judicial court it shall appear that they are contrary to the rules of justice. [here mr. ames requested mr. boudinot to point out the rules to which he referred.] mr. b. referred to the report now under consideration, which was founded on a resolution of congress, that the time for which the army was engaged should expire in november, . this has been made a rule in all the settlements with the officers of the army. the terms of the contract, between the officers and the united states, depended, he said, on the decision of the sovereign power; that was authorized alone to determine when the war should cease. that power was vested in the then existing congress, who, although they entered into provisional articles in november, , did not, however, think proper immediately to disband their armies or put an end to the war, as it was yet uncertain whether those provisional articles would be ratified by great britain, or a treaty of peace concluded between great britain and france; a circumstance which was necessary before those articles could be definitively binding. it was only when the definitive treaty was made, that congress determined the period of the war. the army, when finally disbanded and paid up to that day, acknowledged, by accepting their pay, that it was then only the war ended; and, as far as was in their power, assented to the principle which he maintained, that the provisional articles had not before put an end to the war. suppose that, on the arrival of the definitive treaty, congress had not agreed to the terms, would the war have then been considered as at an end? would not congress have been in the same situation as before the signing of the provisional articles? it was necessary that congress should, by a definitive act, determine when the war ceased. congress had passed such an act; and the house at present cannot with propriety enter into a resolution to alter the period. the argument of inconvenience ought also to have some weight with the house; for if any alteration were now to be made in the law, it must have a retrospect to all the widows and children of deceased officers, who have received half pay for years past. besides, many officers who have not hitherto considered themselves as entitled to half pay, would, in consequence of such an alteration, have a right to apply for it. mr. laurance said, he doubted not the gentleman who supported the petition was fully satisfied as to the justice of the claim which he advocated with so much ardor; he begged leave to state his opinion, however, on the subject, in which he should differ from that gentleman. the contract with the officers of the late army was, that those should be entitled to certain benefits who served to the end of the war. but major torrey was not thus circumstanced, as he died previous to the period when the war ceased, and left neither widow nor orphan to receive the benefit of the provisions allowed by law; his case is not contemplated by any existing resolution of congress. it is well known that hostilities ceased at the time of publishing the provisional articles which formed the basis for the treaty of peace; but can any man say that every soldier had a right on that event to demand a discharge? surely not. the provisional articles had the peace in contemplation, but the army was not to be discharged till the articles of the definitive treaty were ratified by the belligerent powers. the army of the united states was, therefore, only furloughed, and congress retained the power of recalling them into service; and had the officers and soldiers been recalled from their furloughs to take the field, it would have been a continuance of the same war; but if the definitive treaty had been signed, and hostilities had commenced the very next day, it would have been a new war, and would have been prosecuted on entirely new principles. the second article of the provisional treaty looks forward to a _future_ period for a conclusion of the war; and he inferred, that the definitive articles being ratified, and the ratifications exchanged, alone constituted a termination of the war. mr. l. added some observations on the legal ideas of mr. ames, in which he also differed from that gentleman; and concluded by expressing his approbation of the report of the secretary of war. mr. ames's remarks were further combated by mr. williamson, mr. dayton, mr. hillhouse, mr. wadsworth, mr. clark, and mr. white. mr. wayne was opposed to the report, and stated certain particulars to show that the army was not furloughed by congress because it was apprehended there would be any further demand for their services, but because it was inconvenient to give them an absolute discharge at that period. the motion for accepting the secretary's report was carried by a large majority. wednesday, november . two other members, to wit: from maryland, william vans murray; and from south carolina, thomas sumter; appeared, produced their credentials, and took their seats in the house. the speaker laid before the house a letter from the governor of maryland, enclosing a letter to him from william pinkney, a member returned to serve in this house for the said state, containing his resignation of that appointment; also a return of john francis mercer, elected a member to serve in this house, in the room of the said william pinkney: which were read, and ordered to be referred to the standing committee of elections. thursday, november . _the census._ the house again resolved itself into a committee of the whole house on the schedule of the enumeration of the inhabitants of the united states. mr. laurance had previously moved, that until the next enumeration the number of representatives should be one for every thirty thousand persons. mr. dayton moved to strike out "thirty," before "thousand." this amendment was under consideration. mr. gerry observed, that in all the decisions of the legislature, we ought to follow as far as possible the opinion of the great body of the people. if this opinion should be found to be against the ratio of thirty thousand, the amendment ought to be adopted; but if we refer to the amendments, proposed by the conventions to the constitution, we shall find that five states are in favor of one representative to every thirty thousand persons, till the number should amount to two hundred. none of the propositions now moved as amendments to the motion of the gentleman from new york, amount to that number. several others of the conventions were of opinion that the representation was too small to secure the liberties of this country. this government, said he, is a government of representation; the people may control their representatives, but their influence is small in respect to the senate and the executive, and still less over the officers of government. on what then do the people depend for checking encroachments, or preventing abuses? on their representatives? if these should be too few, or if they should fail them, they never can redress their grievances without having recourse to violence. if the number is small, a majority may be the more easily corrupted. on the other hand, too large a number will be attended with difficulties; a medium then is most eligible. an adequate number is absolutely necessary; and to show that one to thirty thousand would not produce more than an adequate number, he referred to the ratio of representation in england and france, in which there was a greater proportion of representatives than in the legislature of the united states. he then adverted to the objection arising from the additional expense; but, he observed, after congress shall have passed a few more of the most important acts, it is not probable that the public business will in future require that the sessions should be for more than four months annually; this would reduce the expense greatly, in the first instance; and, agreeably to a calculation, an addition of forty-seven members to the present number, would make the aggregate expense but about one-eighteenth part more than at present, supposing the sessions to be four months long. but he considered the objection on account of the expense as merely speculative. although congress is not positively bound by the constitution to give one member for every thirty thousand inhabitants, yet he would ask, whether the citizens of the united states did not expect that this ratio would be adopted? and whether they would not consider it as an abuse of power, if congress, instead of one to thirty thousand, should settle the representation at one to forty thousand? eight states have already adopted the first article of the proposed amendments to the constitution: and if the house should either settle the number of the representative body, as it now stands, or reduce it, or establish it at one hundred, perhaps they might, before the end of the session, be obliged to repeal their act--as they would be bound by the amendment, as soon as it is ratified by a sufficient number of states. if gentlemen thought it probable that the proposed amendment would be ratified by the several states, they ought already to consider it as a rule for their conduct, and be restrained by it, from giving less than one representative for thirty thousand inhabitants. after the representation amounts to one hundred, congress will, no doubt, have a right to fix it there, until it is increased by the ratio of one to forty thousand: but that is a power which, he presumed, congress will not exercise; but that they then will establish some ratio, by which the increase of representation shall keep pace with the increase of population, until the house consists of two hundred members. mr. boudinot was convinced of the propriety of striking out the word "thirty." the house ought to consider what would be an adequate number for doing the business of the union; and that number ought not to be exceeded, except to answer some very valuable purpose. business would proceed with difficulty, if the representation was so numerous as it would become by the ratio of one to thirty thousand. the present representation of the united states is in a ratio very different from that of one to thirty thousand; and yet he thought it fully adequate. from a rough calculation, the ratio of thirty thousand would produce one hundred and thirteen members; thirty-five thousand would give ninety-seven; and forty thousand would produce eighty-one. if the number once settled was to rest there, he would not be over anxious to oppose the increase; but if gentlemen would take into view the increase consequent on the next enumeration, they would find that the number will by far exceed the due bounds. he thought the people of the united states would be duly represented, and to their entire satisfaction, if the ratio was set higher than thirty thousand; nor could he imagine that such an exact proportion, between the representatives and the represented, was at all requisite to secure their liberties, or to do the necessary business of government. this indeed might be the case, if the power vested in congress was proportionate to their number; but, since the house would possess the same powers, whether it consisted of a greater or a smaller number, he thought the people equally secure in either case. the ratio of thirty-five thousand, which would produce ninety-seven members, would, in his opinion, be a very proper one. if, however, the people should think otherwise, they had it in their power to correct the mistake, by ratifying the proposed amendment. their not having as yet ratified it, was to him an argument that they thought the ratio too low; or, at least, that they considered the question as doubtful. some of the states, he observed, have postponed the consideration of the amendment; and eight only have as yet agreed to it. on the whole, the house might safely adopt the ratio of one to thirty-five thousand; for that the increasing population of the united states would ever supply a representation sufficiently numerous to answer every good purpose. mr. clark observed, that his objection was not merely on account of the pay of the members, but an increase in the representation would bring an additional expense on the people, by increasing the number of public officers; as almost every man would wish to see his friend provided for. the liberties of america could be in no danger from the present ratio of representation. the doors of the house are open, and the people know what their representatives are doing. mr. steele was in favor of the motion for striking out _thirty_. in discussing the important subject before the committee, he observed that there were two inquiries to be attended to: what is the proper number to constitute a representative body for the united states, and what ratio will leave the fewest fractions in the respective states? one member to thirty thousand, he conceived, would give too numerous a representation. according to the present number of inhabitants, it will almost double the present number; it will divide and diminish the responsibility, make the house too unwieldy, retard public business, and increase the public expenses unnecessarily. an adequate representation, he thought, would be comprised within a much smaller number. gentlemen have called our attention to the house of commons of great britain, and the national assembly of france; but god forbid that we should draw our precedents from such examples as may be cited from european representation. he was opposed to thirty thousand as the ratio: it would, in fractions, throughout the united states, leave above three hundred and sixty-nine thousand citizens unrepresented. thirty-five thousand he thought the most eligible number, as it would leave the fewest fractions. mr. laurance agreed that an adequate number was the great object to be attended to; but he contended that the original motion would give this number more completely than a larger ratio: and it ought to be considered, that, before the next enumeration, it will not be probably more than one to fifty thousand. as to the increase of expense, he observed that the great objects being accomplished, the future sessions will be short; besides which, the compensation of the members may be diminished. but he considered a necessary increase in the expense to be fully counterbalanced by affording greater security to the liberties of the people. the firmness of a government depends on a strong executive; but this executive should be founded on a broad bottom; and the broader the basis, the more secure is the public freedom under a vigorous executive. the existence of the union may depend on the fullness of the representation. the inequality in the proportional increase of the number of inhabitants in different states, ought also to be taken into consideration; for it is very probable that in a short time, while some of the smaller states had a representative for every thirty thousand, others would not have one to forty thousand. he was governed by general principles, and not by any calculations of fractional numbers: the constitution contemplates the ratio he had proposed, and therefore he hoped the motion for striking out would not obtain. mr. goodhue observed, that the situation and circumstances of the government of the united states are so different from those of france or great britain, that no parallel could be drawn respecting them. nor is there an absolute similarity between this government and those of the state governments. the objects of legislation which come under the cognizance of congress, are but few compared with those which engage the british house of commons and the national assembly of france. a much larger representation for them, and in our state legislatures, is therefore more proper, than is necessary for us in the general government. he doubted the opinion that a large representation was less liable to corruption than a small one: some facts appear to confirm the former sentiment. he did not consider the expense as a material objection, if an increase of the number be necessary to doing more ample justice, or for the greater security of the liberties of the people; but, as he thought this was by no means the case, he was in favor of striking out "thirty," in order to insert a larger number. mr. barnwell agreed with the gentleman last up. he should vote for striking out "thirty," in order to substitute the largest number that had been mentioned. mr. b. entered into an abstract and philosophical discussion of the principle of representation in government. the leading sentiment was, that a large proportion of representatives is not necessary to obtain the best objects of legislation, in expressing the will of the people, or to secure the liberties of the constituent body. the great point, he observed, was, to combine the greatest portion of honesty with a due degree of activity. that number which would comprise a due proportion of these, would be competent to all the purposes of legislation, whether the number for which it legislates is ten thousand, or five hundred thousand. on this principle, he was decidedly against a large number, and in favor of a small one. adverting to the british house of commons and the national assembly of france, with respect to the former, he said, their corruption is, in a great degree, owing to their numbers: as to the latter, he observed, that the national assembly had acted, in his opinion, politically and wisely. they set out with a large representation, in conformity to the sentiments of the people at the moment; but, on experience, finding the number too great, they have reduced it from twelve hundred to about two hundred and fifty. he believed that the general sense of the people was against a large representation in congress; the inconveniences experienced from numerous bodies in the state legislatures have led several of the states to lessen the number. he instanced georgia, south carolina, and pennsylvania. mr. baldwin was opposed to the motion. one representative for thirty thousand appeared to him by no means a great representation. the opinion that, of late, had been so often advanced from the press, and in public discussion, for reducing the representative branch in government to a small number, he held to be full of dangerous error. he was sensible that the terms great and small were so merely relative in their signification, that it was difficult precisely to understand each other in the use of them. perhaps they may most properly, both of them, be considered as extremes. no doubt representation, which of late seems to be used as the character of republican government, is a great improvement upon democracy, or legislation by the whole body of the people. he could conceive that a representation might be so large as to partake of the evils of assembling the whole body of the people; but it was a very improbable and not a dangerous extreme: the other extreme was full of danger. these observations acquire much force, when applied particularly to the governments of this country: enfeeble the representative part of them, and you sap the very principles of life. they stand on a different basis from the governments which have gone before them, and may justly be said to be new experiments in government; time, as yet, has scarcely given room to judge of the probable issue; but this we may pronounce with much certainty--let the principles of representation languish, and they have no chance of success. it had not been found practicable to ground representation in the federal constitution upon any other principle than that of numbers; but extent of territory is unquestionably one of the natural principles on which it rests, and should if possible be regarded. one for thirty-four or thirty-five thousand may be deemed a proper representation in the kingdom of france, or of great britain. the four millions which compose the united states, compactly settled where there was great sameness in the country, and pretty equally distant from a common centre, would be properly represented by a smaller number than in their present sparse settlement. but still further: the settlement of the united states is a fillet stretched along the sea-coast for seventeen hundred miles, comprehending as great a variety of climate and interests as one of the other quarters of the globe. it is difficult to conceive of a situation which calls for a greater extension of the principle of representation. it has been said, that one for thirty thousand will make too large and unwieldy a body. he was sensible that was a point that did not admit of being determined by any conclusive reasoning; it was a mere matter of opinion; sound judgment only is to be used, time and experience will come on and confirm or correct the opinion. in such a case, it is wise to inquire how this has been judged of by others who have had a representative body. in france, one thousand two hundred was not thought too great a representation in forming their national assembly; and the number established by their new constitution for their stated legislature was not two hundred and fifty, as the member last up had stated, but, if he had not been misinformed by the publications in this country, it was nearly seven hundred and fifty. in the kingdom of great britain, five hundred is not thought too great a representation: and can one hundred and thirteen, which is the greatest number contended for, be considered in this country as a huge and impracticable mass of representation? it had ever appeared to him to be among the strongest marks of our youth and inexperience, that we grow wise too suddenly. he was afraid this instantaneous wisdom which sprung up so at once, and set at nought, or removed to the extreme of absurdity and folly, the deliberate and tried opinions of the most profound and enlightened among men, in circumstances peculiarly favorable to honest decision, will itself be left by time on that extreme. the federal government, it must be admitted, is in fact pretty highly seasoned with prerogative; practice has already evinced the necessity, in many instances, of increasing it, by devolving much of the legislative power upon the executive department, arising from the difficulty of making particular provisions and details in our laws, and accommodating them to the various interests of so extensive a country. the other branch of the legislature has many traits of a perpetual--at least of a very solid constituent part of the government. he did not mention these as imperfections in the government; they are perfections, if the other parts can be in due proportion: but it is surely a sound reason against taking positive measures at this time to diminish the representative branch. for his own part, he was not well satisfied as to the intention. if there is any reason to apprehend that the government will depart from the point on which it was first placed, he could scarcely suppose that any one could be honestly alarmed with the fear that the departure would be towards democracy. he concluded, by expressing his hopes that the representation to the next congress would be fixed at one for thirty thousand, as it had hitherto been, and that the motion for striking out would not prevail. friday, november . john w. kittera, from pennsylvania, appeared, produced his credentials, and took his seat in the house to-day. monday, november . a petition of james jackson, of the state of georgia, was presented to the house and read, complaining of the undue election and return of anthony wayne, one of the members returned to serve in this house for the said state. _ratio of representation._ the house again resolved itself into a committee of the whole house on the schedule of the enumeration of the inhabitants of the united states. mr. findlay declared himself to be in favor of one representative for every thirty thousand persons. the opinion of the people should be the guide of the committee; that opinion, he conceived, to be in favor of the ratio he had mentioned. the representation ought as nearly as possible to express not only the will, but to participate in the wishes and interests of the people. a large representation embraces these interests more fully, and is more competent to giving and receiving information. the objects of legislation are such as come home to the doors, to the feelings of every man; the government ought therefore to secure the confidence of the people by a large representation. the expense he considered as trifling compared to the benefits--and the people expect and are willing to pay for being well governed, and having their liberties secured. an increased representation is an additional security against corruption. as to delays occasioned by a numerous body, he observed that the representatives were chosen to deliberate and to mature every subject before decision; he instanced the advantages derived from the numerous representations in france and in ireland; the former had framed a constitution in two years for twenty-six millions of citizens, and provided for securing the liberties of their country--and the latter had proved a successful barrier against the encroachments of the arbitrary power of england. he concluded, by asserting that the voice of the people was in favor of the amendment proposed to the constitution, which would give one representative to every thirty thousand persons. mr. giles said this subject had struck him in two points of view: whether congress are not precluded from exercising any discretion on the subject? and whether, if they are not, it is expedient for them to exercise this discretion at this time? the ratio of representation is a constitutional, and not a legislative act. he referred to the constitution, in which it is said that there shall be one representative to every state; and, secondly, that until the enumeration, the number should be as therein appointed to each state. after the enumeration, the number is mentioned below which it shall not be placed; but there is a negative power to increase the ratio, and from this negative power, a positive discretionary power is inferred. but, he observed that congress had precluded itself from a right to exercise this discretionary power, by sending out to the several state legislatures an amendment on this very subject. this amendment he considered in a serious point of view; and had this idea been attended to at the commencement of the discussion, he conceived that it would have prevented the opinion from being brought forward whether it was expedient that any change in the ratio of the representation should take place. the idea of one to thirty thousand, he considered as fully settled in the minds of the people; and a change on the part of the government would indicate a changeable disposition, and a mutability of counsels, which is but another name for weakness. mr. g. then took a view of the objects of legislation to the state assemblies, and of those of the general government. in the former, above one thousand persons are employed, though their attention is confined to their internal police. those of the general government, on the other hand, are on the great objects of the whole finance of the union, a sum of more than eighty millions of dollars, &c., &c. it is said that we shall want abilities, but i should be sorry if a representation of ten times the present number of this house should comprise the abilities of a single state. he assigned different causes than numbers, for the corruption in the british house of commons; among these were the frequent mortgages of the funds, and the immense appropriations at the disposal of the executive, the mode of their elections, &c. a large number is not so easily corrupted as a small body. an inequality of circumstances, he then observed, produces revolutions in government, from democracy to aristocracy and monarchy. great wealth produces a desire of distinctions, rank, and titles. the revolutions in property in this country have created a prodigious inequality of circumstances. government has contributed to this inequality; the bank of the united states is a most important machine in promoting the objects of this moneyed interest. this bank will be the most powerful engine to corrupt this house. some of the members are directors of this institution; and it will only be by increasing the representation that an adequate barrier can be opposed to this moneyed interest. he next adverted to certain ideas which he said had been disseminated through the united states; and here he took occasion to observe, that the legislature ought to express some public disapprobation of these opinions. the strong executive of this government ought to be balanced by a full representation in this house. he hoped the motion to strike out thirty thousand would not obtain. mr. boudinot closed the debate of this day by a few remarks, reinforcing his former observations in favor of an increased ratio. tuesday, november . _ratio of representation._ the house again resolved itself into a committee of the whole house on the schedule of the enumeration of the inhabitants of the united states. mr. page addressed the chair as follows: mr. chairman: i can no longer refrain from expressing my sentiments respecting the question before the committee; not only because i wish if possible to remove the error which i think several members, for whom i have the highest respect, have fallen into, but because i feel myself more interested in the question than i ever was in any one i have had to decide on. sir, it gave me pain to find those worthy members calculating and coldly applying the rules of arithmetic to a subject beyond the power of numbers to express the degree of its importance to their fellow-citizens. i was distressed, sir, to find that, in their honest zeal for securing order, despatch of business, and dignity in respectability of members in the general legislature, they used arguments which have been applied in other countries to the establishment of insolent aristocracies--in some, tyrannical despotisms--and in others, kings; those countries which were most on their guard with a semblance of a free government. sir, the errors i wish to correct are these. they think that because it is _proposed_, by a _proposed_ amendment to the constitution, to authorize them to interfere in the business of ascertaining and fixing the ratio of representation to the population of the states, that congress ought, without any hesitation, to enter on that business; but i humbly conceive that congress, as this is a delicate question in which their own weight and importance must unite with the weight and substantial interest of their constituents, ought to listen to the suggestions of delicacy, and leave its discussion to a disinterested convention of the states. i say it appears to me no small error to quit the plain path of legislation, marked out for us by the constitution, needlessly to wander into the field of political speculation respecting its supposed defects. let me, therefore, advise to leave the restriction of the numbers of members of this house to the people, or to some future congress, which can see more plainly than can now be descried, the evils of a too numerous representation. by so doing, we shall avoid, if not an improper measure, at least a rash step--at least we shall stand clear of a charge of indelicacy, and deprive our enemies of the triumph they expected in the completion of their predictions, that congress would never propose any amendments to the constitution but such as would be subservient to their own views and aggrandizement. let us not give the enemies of our new government cause to exult, and its friends to sigh and mourn. let us not give our friends occasion to repeat what many have said, that so many of our citizens have been led away by theoretical writers on government, as to render it problematical whether the american states are not at this time as much indebted to the national assembly for its remains of republican principles, as france was to congress, in , for their first ideas of that liberty which they now enjoy. let us not, in this moment of general exultation of the friends to the rights of man, take a step which may damp their joy, and lead them to fear that americans, who were foremost in the glorious career of liberty, have stopped short. but, not to take up the precious time of this house with relations of facts to show what was and is the opinion of our fellow-citizens on this interesting subject, i will only state a few arguments which have weight with me as being in themselves evident truths, viz: our constitution being framed by the people, and introduced to us in their name, and congress being the creatures of their will, spoken into existence by the word of their power, for congress to lessen _their_ weight, to diminish their importance, and to exclude them from as full a share in their own government as can be consistent with the nature of it, and indeed from that share which they claim, must be impolitic and dangerous. but, granting that the people wished not a greater share in the general government than is proposed by the amendment, as it is impossible, in a country like the united states, that one man can be sufficiently informed of the opinions, wishes, and real interests of thirty-five thousand of his fellow-citizens, and therefore laws might be enacted contrary to the opinions, wishes, and interests of the people, in which they might nevertheless acquiesce, sacrificing their interests for the sake of peace and quiet to the wills of their representatives, one thirty-five-thousandth part of their own number, what friend to his country would wish to see such a dangerous influence on the one hand, and such a blind submission on the other? how long could an enlightened people remain in such a state of insensibility and torpor? and what might not be the consequence of their awakening from their lethargy? if not an expensive revolution, an expensive repeal of laws. and here i will remark, that the smallest number of legislators, and they, too, well selected for their wisdom and respectability, if unacquainted with their constituents, might pass well-framed laws, founded on the wisdom of other countries, and yet find them disagreeable to their constituents, and be under a necessity of repealing them; but this could not be the case, if the people had in that legislature a sufficient number of representatives on whose fidelity, attachment, and disinterestedness they could rely. this, sir, is a truth worthy of our attention--an ignorance of which, or inattention thereto, i suspect has been the occasion of much political evil in the world. happily for france, the people had such a number of representatives in the national assembly as could engage their feeling, inform their judgment, attach their interest, and establish their confidence in their fidelity and disinterestedness; had that number been much smaller, it is probable france would never have been delivered from oppression by their exertions. i know, sir, that many friends of our constitution thought that the convention did not pay a sufficient attention to the interests of their constituents, when they restrained them from having more than one representative for every thirty thousand citizens. i know that there is a report that the people are indebted to their president, even for this share in their government; and i believe, sir, if this report be true, that whatever has been so justly said of him, as compared to fabius, to hannibal, to alexander, may be forgotten, when this instance of his wisdom, disinterestedness, and attachment to the interests of his fellow-citizens, will be more and more known and applauded, and be for ever engraved on the hearts of their posterity. shall we, then, mr. chairman, the direct representatives of the people, be less attentive to their interest, and that too respecting their share in the deliberations of their own house of representatives, than the president of their convention was? i trust not. i will not pretend to say, however, whether in an assembly where attempts are frequently made to carry into effect the projects of monarchical or aristocratical juntos, the virtuous struggles of patriotic members may not produce mob-like disorders; but in an assembly like congress, where i should suppose no such question can be agitated; none which may not be discussed with temper and decency, such disorder need not be apprehended. i should suppose there would be less clanger of animosities and disorderly debates in congress, amongst twelve hundred members, than in the british parliament, if it consisted but of one hundred. where we have all but one and the same great object in view, the happiness of our country, (not the interests of a particular body of men born with privileges insulting to the feelings and rights of freemen, nor the whims of an individual, born to trample on his fellow-creatures,) we can have no cause to be dissatisfied with one another. surely, sir, unless these gentlemen suppose the members of congress void of sense, or of every idea of decency and propriety, they cannot suppose that even five hundred members would not be easily restrained within the bounds of order. mr. clark said, he did not rise to trouble the house with a lengthy discourse, for he had always believed that long speeches answer no valuable purpose. he meant only to offer a few remarks on what had been said in opposition to his former observations, and he hoped that, although the gentlemen contend for the ratio of , as the only basis whereon to found the liberties of the people, he should not be stigmatized with the name of an aristocrat for voting in favor of a large ratio. hitherto he had not borne that character, and he could not suppose himself yet infected, unless he had caught the disorder since he became a member of the present house. much has been said about the influence of the bank, and that bank directors are members of the house of representatives. the bank (said he) is public property, and therefore he could not see the force of the gentleman's arguments respecting the dangerous influence of that institution, unless it was that he was displeased at the distribution of the shares, so much of the stock being held at new york and to the eastward, and so little at conococheague. in the same predicament he viewed the other objections respecting the influence of speculators; for he did not know that any members of the house were speculators, neither could he see any danger from bribery. in reply to mr. findlay's observation, that more wisdom would be brought into the house by increasing the ratio, he asked whether this would not also bring in more folly? for the probability is, that the ratio of both wisdom and folly will increase with the increase of numbers, and likewise of honesty and dishonesty; and with respect to the smallness of the district, or that it was safer for a small number to send a member than a greater, he was of a different opinion, as he believed that if ever the practice of bribery should come into play in america, it would be easier for a representative to purchase a small district than a large one. if ever the liberties of the people are endangered, it will not be by the smallness of the representation, but by the corruption of electors and elections. this is the door which congress should guard in the strictest manner, and that will secure the people against corruption in the house. a gentleman from georgia has observed, that the disposition of a great many millions of dollars has been in the hands of a quorum of this house, of whom it requires only seventeen to form a majority. on this mr. c. observed, that the old congress, which was composed of a much smaller number, were intrusted with the disposal of larger sums, although there were sometimes only two members from the largest state, virginia, and no complaints were heard of their conduct. but there is an argument which ought to have weight in the present question. the senate, although a much smaller body than this house, are fully competent to judge of our proceedings, and of the safety of the country. indeed, (said mr. c.,) it appears very evident to me that we are not in want of a larger number in the house of representatives to debate any question, if it be considered how much has already been said on the subject now before us. mr. vining expressed much surprise that the subject, which to him appeared perfectly definable, should have occasioned the debate to travel so widely from the line marked out by the constitution. the pendulum seems to vibrate between the numbers , , and ; and should that pendulum rest on any one of them in preference to the others, he could not suppose that it would affect the liberties of america. why, therefore, all this extraneous argument about a point of so easy decision? we are sent here to administer the government, the first principles of which are already fixed, so that neither branch can encroach on the other. the senate, the house of representatives, the president, have each defined powers; and whilst those remain, i shall always believe the liberties of america are invulnerable. under this impression, mr. chairman, i shall vote for striking out , , in order to accommodate the question to a medium. but i shall do this on different principles from some other gentlemen; notwithstanding, i at the same time confess that the ratification of the first amendment to the constitution ought to govern us in deciding this question. the spirit of the amendment appears to me clearly to imply that we should not suffer the number of representatives to exceed one for , . i am here, not as a person who shall exercise discretionary opinions, but judge by the letter of the constitution. and in this case we may increase the number, but we cannot make it less after the enumeration. in the mean time, until that enumeration is complete, the representation remains as it has been hitherto, which i believe may be about one member to every , or , . if we go upon theory only, i would enlarge the representation to its greatest extent, and hand down the principle to futurity, in letters of gold, that a very great representation--that democracy is the very best government that can possibly be devised, provided it were practicable to give it stability. next to a government as free as theory could extend, we have the freest in the world--a government of representation, which will increase with the population of the country, and the ten new states will always preserve an equilibrium; but if you increase it to an extreme, you may render it tumultuous, although it may be safe. i cannot, however, see the propriety of comparing this to the government of great britain, although that is called a government of representation, consisting of two houses of parliament, one of which is elective, the lords are hereditary, and the king can do no wrong; and it has hitherto been, i believe, the next best government, after our own, in the world. and yet we know with how much reluctance ireland obtained a participation of the trade and commerce of great britain; although a flood bellowed forth with the voice of liberty like a demosthenes, still nothing could induce the british ministry to give way, until the _volunteers_ effected it. and have we not the volunteers, sir, in this country to protect our rights? yes, sir, the american volunteers are perfectly competent to this service. i am under no apprehensions from the stockholders of the bank, or the speculators in the funds; for it is their interest to have a wise and good representation. the people who are employed in the more simple path of agriculture, removed at a great distance, are not more interested in the security of the government than the more informed stockholder. as an example of the discernment of the great commercial people of london and bristol, i need only mention their choice of a fox and a burke, for until a late day mr. burke was the champion of the people and the friend of liberty. if our senate should take any unwarrantable stride towards aristocracy, have we not the power to check them? no president can very well attempt it at any time hereafter; and we are perfectly secure in the present time from all suspicion of corruption. mr. hillhouse said he had ever been a friend to a republican form of government, and god forbid, that he should ever give his vote for any measure that should endanger the liberties of his country. he was in favor of an energetic government, as that alone can secure the blessings of liberty. as to the dread of corruption in this house, which some gentlemen appeared to entertain, he thought there was no foundation for such an apprehension; at least as the idea refers to one or two hundred representatives--two hundred he contended, were as easily corrupted as one. but the corruption contemplated was a mere matter of opinion; no facts, he presumed, existed in this country to justify a positive assertion; and as to foreign countries, it seems to be conceded that a larger number than any that has been mentioned is susceptible of undue influence. he then adverted to the restrictions on the president of the united states, and the senate, in respect to the means of corrupting the legislature. the constitution has also made provision to secure the independence of the members, &c. he then urged some difficulties which would be occasioned by a small ratio. he observed that the population of some of the states is nearly stationary: if a small ratio is now established, the consequence will be, when it is augmented, that the representation of those states must be diminished. this would be a measure that would be greatly disliked. with respect to the proposed amendment, he thought it was entirely out of the question, till it was ratified by three-fourths of the states. a very numerous representation would tend to weaken, if not destroy the state governments, and, in the issue, would destroy the general government. for, said he, they mutually depend on each other for support. mr. kitchell was in favor of a numerous representation. he thought the amendment proposed to the constitution ought to be the guide to the house on this occasion. he did not draw his ideas of what should constitute a proper representation, from the examples cited from foreign countries; nor was he actuated by an apprehension of corruption, as more applicable to a small number than to a large one; but when he considered the various objects, views, denominations, professions, callings and interests of the citizens of the united states, he was fully convinced that a large representation was necessary to embrace the wishes and answer the expectations of the people. he should, therefore, vote against the motion for striking out thirty thousand. mr. gerry took a general survey of the arguments against the proposed ratio of one to thirty thousand. in noticing the objection from the instability of the state legislatures, he said it was not owing to their numbers, but to the mode in which they are elected. were the senates and executives of the several states chosen as those of the general government, there would have been as much stability and consistency in their transactions, as in those of the government of the union. a gentleman had said that the proposed amendments to the constitution had been adopted with reluctance by some of the states which had accepted them. he called on the gentleman to produce his authorities for this assertion. a relative proportion between the members of the house and the senate had been suggested; this idea had no foundation in the constitution. and he further observed, that the constitution has so completely guarded and secured the rights and independence of the senate, that he could not conceive of the apprehensions of gentlemen, who appear to think that an increase of the members of this house will overwhelm that branch of the legislature. in all events, the privileges of that body will remain the same. the states, it is said, have reduced their representative assemblies. this, so far from being an argument against the proposed ratio, was directly in favor of it. the diminution of the state legislatures has been occasioned by the idea which the people entertain of the increasing importance of the general government. the objects of legislation to both governments are nearly similar; they relate to those important concerns which interest the feelings of every citizen of the united states; all the difference lies in the magnitude of their respective spheres of action. hence, it must evidently be the wish and expectation of the people, that their interests in every point of view, should be fully and adequately represented in this house. the resolution being again read, in the following words: "_resolved_, that the number of representatives shall, until the next enumeration, be one for thirty thousand." the question was taken thereupon and agreed to by the house; yeas , nays , as follows: yeas.--abraham baldwin, egbert benson, john brown, william findlay, thomas fitzsimons, elbridge gerry, william b. giles, james gordon, andrew gregg, samuel griffin, daniel heister, daniel huger, israel jacobs, aaron kitchell, john w. kittera, john laurance, amasa learned, richard bland lee, james madison, andrew moore, frederick augustus muhlenberg, william vans murray, john page, josiah parker, joshua seney, upton sheridine, thomas sumter, peter sylvester, thomas tredwell, thomas tudor tucker, abraham venable, jeremiah wadsworth, anthony wayne, alexander white, and francis willis. nays.--fisher ames, john baptist ashe, robert barnwell, elias boudinot, shearjashub bourne, benjamin bourne, abraham clark, nicholas gilman, benjamin goodhue, william barry grove, james hillhouse, samuel livermore, nathaniel macon, nathaniel niles, theodore sedgwick, jeremiah smith, israel smith, william smith, john steele, jonathan sturges, george thatcher, john vining, and artemas ward. _ordered_, that a bill or bills be brought in pursuant to the said resolution; and that mr. page, mr. murray, and mr. macon do prepare and bring in the same. tuesday, november . a memorial of the committee of the counties of washington, westmoreland, fayette, and alleghany, in the state of pennsylvania, was presented to the house and read, stating their objections to an act, passed at the last session, imposing a duty on spirits distilled within the united states, and praying that the same may be repealed. referred to the secretary of the treasury for his information. _representative from maryland._ the house resolved itself into a committee of the whole house on the report of the standing committee of elections, to whom was referred the letter from the executive of the state of maryland, containing the resignation of william pinkney, a member returned to serve in this house for the said state; and also a certificate of the election of john francis mercer, in the room of the said william pinkney. the law of the state of maryland regulating elections being called for, was produced and read; by which it appeared that the governor and council of that state were authorized to fill up vacancies in the representation of that state in congress. some objections having been offered against accepting the report, mr. seney observed, that the case appeared to him to be so plain that he was surprised to find gentlemen objecting to an acceptation of the report of the committee. he then stated the whole process of the business, in the resignation of mr. pinkney and the election of mr. mercer, in which the law of the state had been strictly adhered to. he concluded by saying, that two cases in point had already occurred in the state of connecticut, and no difficulty respecting them had taken place in the house. mr. giles said, that he was a member of the select committee which had made the report; and from an accurate attention to all the circumstances of the case, he was led to think the report a very improper one. from recurring to the constitution, he was of opinion that a resignation did not constitute a vacancy. the constitution speaks only of vacancies in general, and does not contemplate one as resulting from a resignation. adverting to the british house of commons, he observed that in that body there could be no resignation. this is an established principle. the people having once chosen their representatives, their power ceases, and consequently the body to which the resignation ought to be made no longer exists. from the experience of the british government in this respect, he argued against a deviation from this rule. he showed from the constitution, that the executives of the states who are empowered to fill vacancies, are not at all authorized to declare the existence of such vacancies; for, if they are to judge in the case, the whole power is invested in them of determining the whole business of vacancies--an idea that materially and essentially affects the privileges of the members of the house. he remarked that, even by the law of maryland, the requisite steps had not been pursued by the executive of that state. he concluded by saying that, if the principles he had advanced were just, he hoped the report would not be accepted. mr. smith (s. c.) had had his doubts on the report; but on more mature consideration he was convinced that on account of the inconvenience which would result from rejecting it, and from other considerations, it was proper to adopt it, but not without a full discussion. he then stated some particulars to show that the vacancy which had occurred on this occasion could not properly be called a resignation. mr. pinkney had never taken his seat, nor the requisite oath. he said that there was no analogy between the parliament of great britain and this house; the mode of issuing the writs originally, and of filling up vacancies, is essentially different. no part of the constitution prohibits a member from resigning, and for convenience it ought to be concluded that he may resign. the public interest may suffer extremely in cases of sickness or embarrassments, which may prevent a member from attending. this argument from the body's not existing to whom the resignation ought to be made, will apply to the president of the united states, whose resignation is expressly mentioned in the constitution. the objection urged from the executives of the states judging of vacancies, he conceived had no great force, for congress would finally judge in every case of election. it is uncertain how the practice of the british parliament originated. _blackstone_ says nothing of resignations. when a member wants to resign in that legislature, he gets appointed to some fictitious office which disqualifies him from sitting in the house. he thought it best to establish some precedent, rather than oblige members who may wish to resign to have recourse to some familiar method, by accepting of some appointment in the state which is incompatible with a seat. mr. murray said he was in favor of accepting the report, both on account of propriety and conveniency. vacancies may happen from various causes--by resignation, by death, or by expulsion--the executive of the state is the proper judge in the first case. he stated certain differences between a resignation after a person has taken his seat, and a resignation before that event. in the former case congress will of course give notice to the executive of the state; in the latter, the executive alone can take cognizance of the resignation. he stated the extreme inconveniency which would result from the ideas of the gentleman from virginia, as it would respect the state of georgia. he then stated several particulars to show that mr. pinkney was not a member of the house agreeably to the constitution, and therefore the house cannot proceed with him as one. he said that we ought to be willing to derive information from the experience of every country; but he conceived that no precedents could be drawn that would apply in the present case from a country which had none, to one which had a constitution that so clearly defined and guarded the rights of the citizens. the custom which had been mentioned as obtaining in that country, arose from a wish to prevent a frequency of elections. from what had been offered by the gentleman from south carolina, and the ideas he had suggested, he hoped the committee would be induced to accept the report. mr. williamson said, that it appeared to him that the constitution contemplates that a member may resign. he read the clause, which says that no member of the legislature shall accept of an office made _during the time_ for which he was chosen--from hence he inferred that resignations were clearly contemplated. mr. gerry said that he had heard nothing to show that mr. pinkney had ever accepted of his appointment, and therefore it ought to have been expressed that he had declined; but, granting he had resigned after accepting his appointment, he asserted that nothing had been offered to prove that resignations might not take place in one house as well as in the other; and the constitution plainly expresses that a senator may resign. the house of commons originated with the kings, who formed that body to control the lords; and hence arose the prohibition against resignations, as they would weaken the body, and the expense of a new election would fall on the king. with respect to the executive declaring improper vacancies, he observed that congress was invested with full power to control the executives of the states in respect to such declarations. mr. seney observed upon a distinction made by mr. giles between a resignation on the part of a senator and a member of the house, he supposed a resignation in either would equally vacate a seat, and that no difference did really exist. mr. sedgwick observed that, if a power of adjudication was vested in the executives of the states to determine on a vacancy in cases of resignation, it would involve this consequence, that a power of judging of vacancies in all possible cases would be the necessary result. he thought the proposition involved the most serious effects with respect to the privileges and independency of this house. this subject was further discussed the next day, and ended in an acceptation of the report of the committee, which was in favor of mr. mercer's election. monday, december . the house again resolved itself into a committee of the whole house on the bill making appropriations for the support of government, for the year one thousand seven hundred and ninety-two; and, after some time spent therein, _ordered_, that the said bill, with amendments, be recommitted to mr. laurance, mr. baldwin, and mr. ashe. the speaker laid before the house a letter from the secretary of the treasury, accompanying his report on the subject of manufactures, made pursuant to an order of the house of the fifteenth of january, one thousand seven hundred and ninety; which was read, and ordered to lie on the table. the speaker laid before the house a letter from the treasury of the united states, accompanying his account of receipts and expenditures of the public moneys between the first of july, and the thirtieth of september, one thousand seven hundred and ninety-one; which were read and ordered to lie on the table. mr. benson laid on the table a resolution for the appointment of a committee to join a committee of the senate, to consider and report the most eligible manner of carrying into effect a former resolution of congress respecting the erection of an equestrian statue, in honor of general washington. _appropriation bill._ the house then, pursuant to the order of the day, resolved itself into a committee of the whole, and resumed the consideration of the appropriation bill, mr. muhlenberg in the chair. in proceeding through the bill, the several items were separately considered and agreed to. some occasional remarks were made; but no material debate took place. one amendment was proposed, by which the bill is made to express the several purposes for which the moneys are appropriated, instead of appropriating sums in gross, with a reference to the secretary's estimate, for particulars. the committee having reported the bill and the amendment, the house adopted the same, and recommitted the bill to the select committee, who had originally framed it, with instructions to new-model it pursuant to the sense of the house. mr. gerry presented a resolution in lieu of one which he laid on the table on friday last, making it the duty of the secretary of the treasury to report to the house, on the third monday of every session, an account of the receipts and expenditures of the public money appropriated during the preceding session, so far as he shall then have it in his power to state particulars; and if he be unable to give an accurate statement of the whole, at the time appointed, he is to complete it as soon afterwards as may be. tuesday, december . _resolved_, that mr. benson, mr. gerry, and mr. smith, (of south carolina,) be appointed a committee on the part of this house, jointly, with such committee as shall be appointed on the part of the senate, to consider and report to congress the most eligible manner for carrying into effect the resolution of the united states in congress assembled, of the seventh of august, , directing that an equestrian statue of general washington should be erected. monday, december . the following message was received from the president of the united states. _gentlemen of the senate, and of the house of representatives:_ it is with great concern that i communicate to you the information received from major general st. clair, of the misfortune which has befallen the troops under his command. although the national loss is considerable, according to the scale of the event, yet it may be repaired without great difficulty, excepting as to the brave men who have fallen on the occasion, and who are a subject of public as well as private regret. a farther communication will shortly be made of all such matters as shall be necessary to enable the legislature to judge of the future measures which it may be proper to pursue. george washington. united states, _december_ , . friday, december . _the post office bill._ the house again resolved itself into a committee of the whole house, on the bill "for establishing the post office and post roads within the united states." [the following is a condensed view of the arguments made on striking out the section which gives to members the privilege of franking.] when the bill under consideration is once passed into a law, it is presumable that no gentleman will ever ask a member to frank for him, as he cannot grant the request consistently with his honor; the apprehension entertained of the existence of abuses, and of their increasing with the increase of numbers, would be an argument equally valid against every law; for no law can be framed, as that the people will not find means to evade it. but still the legislature will have the power of correcting the abuses, as soon as discovered, by passing new laws to check them. the committee who drafted the bill, had before them all the acts of the british legislature, respecting the post office; they saw the abuses and how they had been remedied; and with such light to guide their steps, they had proceeded in the execution of their task. the privilege of franking they had introduced into the bill, upon mature considerations; to take it away would be leveling a deadly stroke at the liberty of the press; the information conveyed by franks, may be considered as the vital juices, and the channels of the post office as the veins; and if these are stopped, the body must be destroyed; it is treading on dangerous ground, to take any measures that may stop the channels of public information, especially of that which relates to matters in which the people are interested; to check the circulation even of foreign intelligence may be dangerous; but it is highly so, to deprive the people of information respecting the measures of the general government; nor ought the members to complain of being obliged to read so many letters and petitions as come to their hands in consequence of the exemption from postage. if any gentleman thought this a heavy task, he ought to remember that it was only his duty, and a task which every member had undertaken when he accepted a seat in the house. the privilege of franking was granted to the members, not as a personal advantage, (for in fact it proved rather a burden), but as a benefit to their constituents, who, by means of it, derive information from those who are best qualified to give it, as they are the persons chosen to administer the general government. the members also receive useful information through the same channel. when the impost law and the excise law were under consideration, many persons who were better acquainted with the operation of such laws, transmitted to the house much valuable information on those subjects; and to such information the house ought ever to be open; as, on the other hand, the motives for adopting certain measures, ought always to be explained to influential characters in the different parts of the union. such conduct will produce the most salutary effects in reconciling the people to the measures of government, when the principles upon which every law is framed, are explained to them, as well by the correspondence of the members, as by their debates, published in the newspapers. it is the duty of the members to disperse the newspapers among those people who cannot, perhaps, otherwise obtain them, under the protection of franks. even along the post roads, the common packets of newspapers are not safe from depredation; but when once they get into the interior parts of the country, there is hardly any chance of their escaping; whereas, under the cover of a frank, they are sure to reach their destination in safety. if the privilege were confined, during the session, to letters sent from and received at the seat of government, and the members limited to their own letters, and obliged to write the whole superscription, the increase of the apprehended abuses would be prevented; if it were further restricted, by limiting to those letters only what are sent to or come from the state to which the member belongs, this would convince the people, that the privilege was intended for the benefit, not of the members, but of their constituents. further, it was observed, that every argument, which might be adduced in favor of withdrawing the privilege from the members of congress, might be used with equal force in the cases of president, vice president, and every other public officer, mentioned in the same section. if the allowance of six dollars per day was a reason for subjecting the members to the payment of postage, every public officer ought also, on the same principle, to pay for his letters, as they were all compensated with equal liberality. if abuses were apprehended from the members, others were as likely to introduce them as they; if an increase of revenue was contemplated, the postage of all letters to and from the president, the vice president, the secretaries of state, of the treasury, of the department of war, &c., would contribute to that increase; but, on the other hand, those gentlemen must have their compensations increased, if their letters were to be taxed; for they could not be expected to pay for them at their own expense. if the privilege can be guarded against abuse, with respect to those officers, it can also be guarded in the case of members of congress. the establishment of the post office is agreed to be for no other purpose than the conveyance of information into every part of the union; and a greater portion of that had been conveyed into many of the interior parts of the country, by the newspapers sent by the members of the house, than could be conveyed by other means, excepting on the main roads on which stages go. that information had proved highly serviceable to the present government; for wherever the newspapers had extended, or even the correspondence of the members, no opposition has been made to the laws; whereas, the contrary was experienced in those parts to which the information had not penetrated; and even there, the opposition ceased, as soon as the principles on which the laws had been passed, were made known to the people. as long as the privilege can be thus used for the general advantages of the citizens, it ought not to be relinquished by the members merely through fear of its being thought a personal privilege; it might be confined to members actually attending the session; they might be obliged to write the whole superscription, and even to add the date. in short, the wisdom of the house, it was hoped, would prevent all the evils apprehended from it, and retain the advantages. the question being taken on the motion, for withdrawing the privilege from the members, it passed in the negative; yeas , nays . tuesday, december . _post office bill._ the house again resolved itself into a committee of the whole house on the bill for establishing the post office and post roads within the united states. mr. wadsworth moved an amendment, to withdraw the privilege of franking from the members of both houses of congress. in support of this motion, it was said, that the grand security which the people of the united states have in their representatives is, that those representatives are subject to the same regulations as their constituents. in the article of postage, this was not the case. congress, in this case, assume to themselves a privilege, which they refuse to the people; they took money from their constituents, and paid none themselves. the people viewed this privilege with a jealous eye, and could not be pleased to see it enjoyed by congress, whilst neither the members of the state assemblies, nor even the governors were indulged in it. congress enjoys only chartered rights; and all rights not expressly mentioned in the charter, are of course excluded. the constitution is their charter; the convention, who framed it, had, no doubt, well considered the whole subject of privileges and accurately defined all such as they wished the legislative body should enjoy distinct from their constituents. in the enumeration of those privileges, there is not a syllable tending to exonerate them from their share of the common burden of postage; they have no constitutional claim to such an immunity, and if they assumed it they would increase the burden on their constituents. the post office, if unable to maintain itself, must derive its support from other sources of revenue. already the members of both houses send and receive, during their session, as many letters through the general post office as all the other inhabitants of philadelphia; those letters, if paid at the usual rates, would amount to half the postage of the united states. the number and bulk of the franked letters and packets excluded the newspapers from the mail, and thus prevented the circulation of intelligence; if the evil increased (and there was no probability of its being diminished, except by the utter abolition of the privilege) it would eventually prove the ruin of the post office. the example of britain showed to what an enormous height the abuse of such a privilege may be carried; and though similar abuses may not as yet have taken place here, yet it could hardly be doubted that many unnecessary letters were daily sent by the post, which never would have been written if subject to postage; those letters are not only unproductive, but an actual expense to the post office, as the postmaster receives a certain percentage on these, as well as upon other letters. the privilege of franking is moreover unequal in its operation; while some members use it only for the purpose of transmitting political information to their constituents, others, absent perhaps during the whole session, use it for very different purposes: to men in trade it was a considerable advantage, amounting probably, in some instances, to a hundred dollars a year. it would be better to take away the privilege entirely, and reduce the general rates of postage one-half, or to allow the members, at the close of each session, to make a charge for all letters on public business, from their constituents, or to make them an allowance in gross to defray the expense of postage; better, even, if necessary, to make an addition to the compensation which the members receive for their services, if the present one be found incompetent to their honorable support. on the other hand, it was observed, that the privilege of franking was not assumed by the members for their own private accommodation, but for the benefit of their constituents, to transmit to them every necessary information respecting the operations of the general government, and to receive from them such information as they might have to communicate. petitions are frequently enclosed to members; and if these were to be subject to the payment of postage, the privilege of petitioning the house, would be in a great measure destroyed. the diminution of revenue which the post office might in some instances suffer from the privilege of franking, ought not to be deemed a sufficient reason for abolishing that privilege; since it is allowed, that the object contemplated in the establishment was the general convenience, and an easy and speedy mode of disseminating public and private intelligence. revenue was but a secondary consideration. although the citizens who live at the seat of government, and have daily opportunities of learning from the newspapers what public measures are going forward, may not be materially affected by the abrogation of the privilege, yet the case would be widely different with those who live at a distance, especially when fiscal operations were on foot; those who are informed, will make a prey of those who are ignorant, and destructive speculation will enrich the few, at the expense of the many. in a government of opinion (which is the government of america) much greater reliance is to be placed on the confidence of the people than upon any other circumstance: that confidence can only be the result of the fullest information; but if the privilege of franking were taken away, the avenues of information would be, in a great measure, closed, for the members could not undertake, at their own private expense, to transmit intelligence to every part of the union; yet the citizens have a right to expect information, not only of the acts of government, but also the principles upon which they were grounded. the abuses of the privilege, that have prevailed in england, do not prevail here; and its abolition would give general dissatisfaction, particularly in the more distant parts of the union, where information would be subject to a very high tax, if circulated through the post office, at the ordinary rates of postage. of those bundles of letters received and dispatched by members of congress, many (though far from being unnecessary, as had been said) would perhaps never be written, if they were not to pass free of postage; and thus that free communication of sentiment between the representative and constituent, which is so essential in a government like this, would be in a great measure cut off; and the post office would gain little or nothing by it, as those packets of newspapers, bills, reports, &c., would either be sent by private hand, or not sent at all; even here an inequality would prevail, as the people who live near the seat of government, and all along the main road, could, from the greater frequency of opportunities, receive such packets with more ease and regularity, whilst those in more remote situations could seldom or never receive them, unless by the mail. the expense arising from the percentage to the postmaster on the free letters, is but trifling, as in such cases he receives no more for a packet of two ounces than for a single letter; and as to the idea of allowing the members to make a charge for their letters, this would be no better than receiving with one hand and paying away with the other. if, however, it were found absolutely necessary to take precautions against the abuses that were apprehended, this might be done by limiting the number or weight of letters that should go free by any one post, without entirely preventing the interchange of sentiments between the representative and his constituents. the committee then rose, without taking the question on the amendment. thursday, december . _election of president, &c._ the house resolved itself into a committee of the whole house on the bill sent from the senate, entitled "an act relative to the election of a president and vice president of the united states, and declaring the officer who shall act as president, in case of vacancies in the offices both of president and vice president." the bill was read by the clerk. the first section being again read by the chairman, mr. tucker moved to amend this clause by striking out these words, "except in cases in which an extraordinary election of president and vice president shall take place, as hereinafter specified." this motion was agreed to. mr. sedgwick made some general observations on the great objects of the bill, and adverting to the term proposed for the choice of electors of president and vice president, observed that he had his doubts whether it would not be best to give a longer time. he enlarged on the disagreeable consequences which would probably ensue, in case there should not be a choice by the electors; as the matter must then be determined by the house, voting according to the constitution, by states. he descanted on the pernicious consequences which might result from the collision of parties, and the working of passions in the breasts of men whose ardor would probably be excited to the greatest degree on such an occasion; every reasonable measure should be adopted to prevent the evils which he deprecated; he therefore moved that the words "thirty days" should be struck out, in order to give the people a longer time to give in their votes for electors. mr. white objected to the motion. he conceived it was calculated to produce the very mischiefs the gentleman appeared to deprecate. if it had been possible, he could have wished that the electors should meet and give in their votes on the very day of their being chosen; he wished as much as the gentleman to adopt measures to prevent the evils he mentioned; but did not think the motion would conduce to that object; he thought the time should rather be contracted than extended. mr. dayton also objected to the motion; he thought fourteen days would be a more proper time; it was the design of the constitution, though it is not expressed, that the president should not know the characters to whom he is indebted for his election. mr. sedgwick observed, that the objections would be very proper was it certainly known that the electors would always agree in a choice; but this he conceived, it was hardly possible should always be the case; and what will then take place? the election devolves on this house, and the electors will then be known, and liable to all that intrigue and cabal which has prevailed in other countries. he left it to the consideration of the committee to determine on the immense importance of providing in season against the evils of a contested election, in the case now before them. mr. baldwin objected to the motion; but said if it was struck out, he should then move to insert a clause which should assign different periods according to the circumstances of the several states, so that the electors should meet as nearly as possible at the same time in all the states. mr. niles objected to the motion; and the question being put it was negatived. the clause which makes it the duty of the executive of the several states to cause the names of the electors to be certified, was objected to. mr. niles observed that no person could be called upon to discharge any duty on behalf of the united states, who had not accepted of an appointment under their authority. he thought that this was opening the door too wide, and involves a blending of the respective powers and duties of each, which is not warranted by the constitution; and he observed that he should be sorry that the government of the united states should attempt to exercise a power which they are not competent to carry into execution. he moved that the clause should be struck out. mr. sedgwick observed that if congress were not authorized to call on the executives of the several states, he could not conceive what description of persons they were empowered to call upon. mr. niles said he considered this section as degrading to the executive of the several states; and inquired, what is to be done in case those executives should refuse to comply with the requisition? mr. clark said, it appeared to him that the committee was creating difficulties where none before existed. he observed that the choosing these electors was a privilege conferred on the people, and that this was merely pointing out the mode of exercising this privilege; he thought the clause stood very well and would create no uneasiness whatever. mr. hillhouse said, he considered the provision improper. it imposed a duty on the supreme executives of the several states, which they might or might not execute; and thus the necessary certificates may not be made. he seconded the motion to strike out the clause, and proposed a substitute making it the duty of the electors to procure for themselves the necessary certificates. mr. livermore spoke in favor of the clause; he did not consider it either as an undue assumption of power, or degrading to the executives of the respective states. mr. barnwell said, a small addition to the clause would in his opinion obviate every difficulty; the words he proposed to insert were--"or such person as the executive may appoint." mr. sturges moved to strike out "executive," and insert "the legislature." mr. j. smith said, it appeared to him that the proposed alteration would amount to exactly the same thing; for the duty of giving the certificate would eventually devolve on the executive. the motion for striking out the clause was negatived. the ninth section provides, that in case of vacancies in the offices of president and vice president, the president of the senate _pro tem._, or the speaker of the house of representatives shall act as president. mr. white moved the section should be struck out. he said the house had formerly discussed the subject and could not agree; the first part of the bill is necessary; this is not of immediate importance to be attended to. mr. fitzsimons said, he supposed the question must be determined some time or other, and he knew of no reason why it should not be decided at this time; to strike out the clause would, in effect, be to declare that the house could not agree. mr. williamson was in favor of striking out. mr. livermore objected to the motion; he said no two subjects could possibly be more intimately connected; and the provisions of the bill are such as to render the intermission, during which this regency was to take place, as short as possible; he hoped the clause would not be stricken out. mr. white added some further objections to the section; he said it was distinct from the bill, and though a majority of the committee were in favor of the characters nominated, yet he thought it would be best to make it the object of another bill, and of an independent discussion. mr. sedgwick said, he hoped the section would not be struck out, especially if there is a majority of the committee in favor of it. he observed, that last session there was no decision in the case; he conceived it necessary that the business should be now decided on; and adverting to the particular characters named, he said they were as far removed from any influence of the executive as any persons that could be possibly pointed out. mr. barnwell was in favor of going into a discussion of the subject at this time. he said there was a large number of the present house who had not heard the observations offered in the last congress; he supposed the present as proper a time to consider the subject as any that could occur. if gentlemen who are opposed to the section will offer their objections, he should be glad to hear them; if they were conclusive, he should vote to strike out the section. if nothing was offered, he should vote against the motion. mr. sturges mentioned several objections to the section, which in his opinion rendered it unconstitutional; he could not find that the speaker of the house, or president of the senate _pro tem._ were officers of the government in the sense contemplated by the constitution. the compensations of the president and vice president are settled by the house; the speaker would have to decide on those compensations; this he said rendered him evidently improper. he further observed that the consequence would be caballing and electioneering in the choice of speaker. mr. white said, the speaker was not a permanent officer, if he could be considered as one in any point of view; but he was of opinion, that he was no more an officer of the government than every other member of the house. the question for striking out the section was negatived. mr. sturges then moved to strike out the words, "the president of the senate _pro tempore_, and the speaker of the house of representatives." mr. giles stated the reasons which he conceived fully proved the unconstitutionality of the clause. the characters referred to he did not think were officers. if they had been considered as such, it is probable they would have been designated in the constitution; the constitution refers to some permanent officer to be created pursuant to the provisions therein contained. these persons are not permanent; a permanent officer was contemplated; the subject was not to be left to any casuality, if it could possibly be prevented. mr. sedgwick said, he did not know what officer could with propriety be said to be permanent; offices are held during good behavior in some instances, and in others during pleasure; but it will be impossible to say that any officer is a permanent officer, for the expression is very extensive. he was surprised to hear the idea controverted, that the speaker of the house, or the president of the senate _pro tem._, is not an officer. in common parlance he was sure there was no difficulty in the matter. mr. gerry observed, that some gentleman had said the speaker is not an officer; but if he is not an officer, what is he? he then read a clause from the constitution, which says that the house shall choose their speaker _and other officers_. he hoped, however, that the speaker of the house of representatives would be struck out, in order to avoid blending the legislative and executive branches together. he considered this measure as a political stroke of the senate; but he hoped that the house would never consent to making their speaker an amphibious animal. he moved therefore that the words "speaker of the house of representatives" should be struck out. mr. hillhouse objected to any officer appointed by the executive being inserted. he said, if that should be the case, the appointments would in most cases be made with reference to that object; and hence important offices would often be filled with improper and incompetent persons. besides, it was taking away the choice from the people, and thus violating the first principle of a free elective government. the senate are appointed by the people, or their representatives, and hence, in his opinion, filling the vacancy would devolve with the greatest propriety on that body. mr. williamson was in favor of the motion for striking out both the characters. he observed, that this extensive construction of the meaning of the word officer, would render it proper to point out any person in the united states, whether connected with the government or not, as a proper person to fill the vacancy contemplated. before taking the question upon the amendment, the committee rose. tuesday, january . a memorial of george turner, one of the judges in and over the territory of the united states north-west of the ohio, was presented to the house and read, praying a revision of the ordinance for the government of the said territory, and also an increase of compensation to the judges thereof. referred to mr. livermore, mr. laurance, mr. white, mr. williamson, and mr. smith, (of south carolina); that they do examine the matter thereof, and report the same, with their opinion thereupon, to the house. on a motion made and seconded, "that the secretary of war be instructed to lay before this house an accurate statement of all ascertained balances of pay, which appear by the books of the united states to be due to the officers and soldiers of the late army of the united states, and which still remain either unclaimed, or claimed and unpaid, together with the reasons for withholding payment from those who may have respectively entered claims therefor;" _ordered_, that the said motion be referred to mr. wadsworth, mr. giles, and mr. smith, (of new hampshire;) that they do examine the matter thereof, and report the same, with their opinion thereupon, to the house. the house proceeded to fill up the remaining blanks in the bill to establish the post office and post roads of the united states; which was then read a third time and passed. _petition of catharine greene._ the house resolved itself into a committee of the whole house, on the report of the secretary of the treasury on the petition of catharine greene, relict of the late general greene. the object of the petition is to obtain an indemnification from the united states against certain engagements which were entered into by her husband, the deceased major general nathaniel greene, while commanding officer in the southern department; and for the circumstances on which it is founded, refers to a representation of the d august, , which was then made by the said general greene to congress. the petition is accompanied by a number of vouchers, arranged in alphabetical order by the secretary of the treasury in his report; from all which he draws the following conclusion: "that strong and extraordinary motives of national gratitude for the very signal and important services rendered by general greene to his country, must serve to give a keener sting to the regret, which ought ever to attend the necessity of a strict adherence to claims of public policy, in opposition to claims founded on useful acts of zeal for the public service, if no means of protecting from indigence and penury the family of that most meritorious officer shall, upon examination, be found admissible." mr. wayne rose and gave his reasons for supporting the petition, as follows: mr. chairman: it may not be improper to mention the motives that impel me to wish a fortunate issue to the _claim_ now under consideration of this committee, which i must also offer as an apology for the part i have taken, or that i may eventually take, in support of the claim. from my first interview with general greene until the moment of his dissolution, we always lived in the strictest habits of friendship and confidence. he was an officer with whom i had participated in almost every vicissitude of fortune, (in many a well-tried field,) from the frozen waters of the north to the burning sands of the south. he was a man whose virtues and talents i knew and revered; his noble soul would have revolted at the idea of imposition. he never would have offered in a _claim_ to congress, but upon the purest principles of honor and justice. i was a witness to the pressing necessity that _compelled_ him to become the surety, for which indemnity is now claimed. he did what i would have done, (as second in command,) had he been absent at that trying crisis. the claim i _know_ to be just, and i am decidedly of opinion that he was drawn into that security from the situation in which he was placed by congress, as commander-in chief of the southern department. under these impressions, i beg leave to submit to the consideration of this committee the resolutions now in my hand, and doubt not of their concurrent support. "_resolved, as the opinion of this committee_, that the estate of the late major general nathaniel greene ought to be indemnified for and on account of the engagements entered into by that general with certain persons in the state of south carolina, for the purpose of obtaining supplies for the american army, in the year , and that ---- be granted to the executors of the estate of the late major general nathaniel greene, for that purpose. "_resolved_, that a committee be appointed to bring in a bill in conformity to the foregoing resolution." mr. boudinot said, there was no greater friend to the memory of general greene than he was, nor any person more anxious to have justice done to his widow and family; but he was apprehensive that the resolution proposed by the worthy gentleman who had first brought forward this subject was not drawn up in such a manner as to ensure it a passage through both houses of congress. he wished, therefore, that it should be so expressed as to prevent any tedious discussion, and at the same time do ample justice. the report of the secretary of the treasury puts the subject on the best footing. the motives which led him to make the contract were, first, the public good; and perhaps, secondly, to serve his friend, mr. burnett, because he was his aide-de-camp, and he wished to put him in the way of being established in business after the war; but mr. burnett was never in any other way connected with general greene than as a young man brought up in the family, whom he wished to patronize. after a few other observations, mr. boudinot moved to strike out the preamble of the resolution proposed by mr. wayne, and to adopt words nearly in substance as follows: "_resolved_, that it is becoming the dignity of congress to make compensation for the widow and orphans of the late major general greene, who so gloriously served his country; and that they be indemnified for the loss which his estate is likely to sustain by his having entered into certain bonds for supplying the southern army with rations and clothing, at a time when they were threatening to disperse." mr. findlay observed, that on the question as it is now stated, the committee have a choice of three alternatives; the claim may be rejected, a pension or gratuity may be granted to the amount, or the claim of the petition may be granted as a matter of right, upon the footing of its own merits by a special law, as all authorized claims which congress grant are given. claims for which the standing laws are competent, do not come before us. i am in favor of the last alternative. i am against rejecting the petition; because, as the facts are stated in the report of the secretary of the treasury, general greene putting himself in this situation of risk was from the most public-spirited motive; it was to support the public interest at a most important crisis, when the well-being, if not the existence of the southern army was at stake, as well as the security of the inhabitants. if a commander-in-chief of an army may be ruined in his private affairs by making an unauthorized exertion to save his army or his country, the precedent may be dangerous; it may teach commanders lessons of prudence, which may have ruinous effects. it is true the necessity of the case must be such as will justify the unauthorized measure: from the report, this appears to have been the case in the subject of the present debate. from the whole state of the facts before us, general greene appears not to have had his own interest in view in this transaction, if the proof of this only lay between banks and him. the established character of general greene, not only as an officer, but as a man of integrity and public spirit, certainly cannot sink when laid in the balance with the secret insinuation of an unprincipled speculator. such has been my own opinion of general greene's character, that i would certainly require other proofs than this before i would even indulge suspicions: but it does not rest upon this. we have banks's own testimony to the contrary, and his partner, and we know it would have been the interest of banks & co. to have made the contrary appear: nay, we have such a cloud of witnesses, all concurring to the same point, as appears sufficient to remove doubts from the most scrupulous mind. unauthorized accounts are admitted in settlements between the united states and the individual states, upon the principles of equity. i consider this as a case of the same nature, and will vote for it agreeably to this precedent. i consider granting the prayer of the petition in this manner, as an act of justice, not only to his estate, but to the memory of his character. but i object to granting the relief in the indirect way of a pension; it is not so safe to the public, nor so honorable to the heirs of general greene. to the public it is highly dangerous as a precedent; it will operate as an opening wedge to other claims without limitation. few indeed can have an unauthorized though just claim as commanders-in-chief of an army reduced to such a dilemma as originated the present question; but merit and distress are not confined to commanders alone; they are to be found in every rank of citizens. the struggles during the late revolution produced abundance of merit; we cannot look around in this house, nor in any large collection of citizens, but our eye meets with those who have claims of merit. we can scarcely be acquainted in any neighborhood, but we must be acquainted with such as have been reduced to distress by their meritorious exertions, either in the camp, in the cabinet, or by granting supplies. how many who have aided the public with their substance, have been obliged to part with the evidences of their meritorious claims for a temporary relief. many of the aged, many widows and orphans, to my knowledge, labor in penury, and mourn in secret, on the account of such meritorious aids not being recompensed when they ought to have been; though this was owing to the public misfortune, yet the merit and sufferings were not the less. i am very sensible of the great merit of general greene; it is so well known, and so generally acknowledged, on all hands, as to render it improper for me to enlarge thereon. but, superior as his merit was, if we grant a pension or relief not founded on a just claim, merit of a lower order must be also admitted: there is no distinguishing the shades. i have heard of claims on the footing of merit brought before congress, supported by such arguments as would induce a stranger to think that nearly all the merit of accomplishing the revolution was centred in the claimant. if merit is to be rewarded by pensions, we shall soon have claimants in abundance. in the exercise of supreme command, difficulties often arise which render exertions necessary for which general rules cannot be provided; these have been generally treated as objects of indemnification. many claims are now before congress; they are various in their nature, and no doubt a number of them will be admitted; but from every view i have taken of the claim before us, i think the present as strongly addresses our justice and sympathy as any of them. mr. wayne thought it necessary to make some observations on what had fallen from the gentleman on his right, (mr. boudinot.) in order to place this subject in a proper point of view, he begged leave to mention certain circumstances previous to the evacuation of charleston. some of the first characters in south carolina obtained a flag from general greene, to meet a deputation of merchants and others under a flag from the british lines. those merchants were anxious to remain after the army, for the purpose of disposing of their stock in trade, and wished for a reasonable time to transact that business; this indulgence was readily granted, for it was thought an object of consequence to retain supplies for the use of the country as well as for the army; and they were permitted to continue in the place for the space of _twelve months_ after the abandonment should take effect. assurances were also given them for the inviolable protection of their persons and property for that period. thus sanctioned, they were probably induced to speculate upon such stores as the british army could spare, (for that army was redundantly supplied,) whilst the americans were experiencing almost every possible distress for want of the common necessaries of life. about this time hopes were entertained of the speedy appearance of a superior marine force from the french west indies, to that of the british; and the operating army under my command was advanced to the quarter-house, in a position to prevent the enemy from embarking with impunity, and to protect the town and its inhabitants from depredation and insult. this manoeuvre had the desired effect; it created a jealousy in the british general for the safety of his rear, and general leslie was, in a manner, compelled to come into a convention, more resembling a _capitulation_ than an _abandonment_, for he was under the necessity to "agree not to commit any insult upon the inhabitants, or depredation upon their property, or damage to the city, at or _after_ his embarkation." the word _after_ caused some demur; but it was insisted upon and complied with, in consequence of the orders i had previously received from general greene; a measure which at once afforded security to the inhabitants, and a flattering prospect of full supplies, as well for the citizens as for the army. the gentleman (mr. boudinot) says--how are we to distinguish between the articles and necessaries that were actually made use of by the army, and of the other goods purchased of the british merchants? this may be fully answered and explained by mentioning this fact: that those merchants took advantage of their situation, and would not dispose of any article suitable for the army unless _their whole stock were purchased together_; having but twelve months to dispose of their goods and collect their debts. nor could the necessary articles be obtained at the point of the bayonet, as the merchants were protected by a compact made under the sanction of a flag. nor would they trust the contractor _banks_ with their property, unless general greene became his security; by which act, in their opinion, the _united states_ would be bound in honor to fulfil a contract made by their commanding officer; nor did general greene come into the measure until compelled by dire necessity, to prevent a mutiny and dissolution of the army. and such was the exhausted situation of the country in the vicinity of charleston, that the executive and the legislature found it expedient to send a distance into the country to obtain supplies for themselves and the refugee families who were returning to the city after the evacuation: in fact, we were under the necessity of taking part of these very provisions, to prevent an instantaneous revolt. but the gentleman (mr. boudinot) says that general greene's private friendship for major burnett, who had been his aide-de-camp, was a peculiar inducement for his entering into that security, and that major burnett had mortgaged an island to general greene as a collateral security. this, indeed, was an act of private friendship; but it was a subsequent transaction, and noways connected with the former, nor is it amongst the charges. this was a private purchase by major burnett from mr. john m'queen, a gentleman well known in south carolina; and it was thought to be a very advantageous purchase for major burnett at the time it was made, (although it has turned out otherwise,) but it was necessary for him to obtain security, previous to receiving _titles_. he applied to general greene to become his security upon that occasion, which was complied with; and in that act he certainly displayed a superior degree of private friendship, and such as has already been found extremely injurious to his family; but it is by no means connected with the claim now under consideration. the danger of establishing a precedent in future, unsupported by previous authority obtained from congress, is also mentioned as an objection. mr. chairman, there never can be any danger of drawing this circumstance into precedent; for the page of history never did before, nor i believe ever will again, produce a similar precedent, _i. e._ an army facing and surmounting every difficulty and danger through a long and bloody contest, badly clothed and worse paid, and frequently destitute of the common necessaries of life. sir, it is for the honor of general greene that we contend; and i am warranted in asserting, that he was not interested in the contract of mr. banks, otherwise than from the pure and virtuous motives of serving and saving his country. i therefore feel myself interested, and bound in honor to support and defend the character of my departed friend, and to demand this claim as a matter of _right_, and not of _grace_; and i have a confidence that the candor and justice of this committee will induce them to adopt the principles of the resolutions submitted to their consideration. mr. sumter.--with respect to the resolution as it now stands, i feel myself obliged to oppose it. nothing that has fallen from the gentleman over the way (mr. wayne) has convinced me that the measure is proper or just. it is necessary to be cautious in the manner of discussing a matter of so much delicacy. i rise, not to make any pointed objections that can in any degree injure the reputation of the officer, whose abilities i respect, or to hurt the feelings of his family or connections. i suppose that no gentleman will decide in favor of the resolution without examining the merits of the case. the committee will have that information which they shall deem to be requisite on the occasion. i am sorry to differ in opinion with the gentleman from georgia, and am therefore disposed to make sacrifices of my own feelings of past injuries, and will not suffer them to warp my judgment, but will endeavor to decide in conformity with the opinions of the people of the state of south carolina, and in particular of the district which i have the honor to represent. in going into the investigation of this matter, i will give my reasons why i do not think the country, although in extreme distress, was in that deplorable situation which has been represented; neither was its credit reduced so low but that relief might have been obtained, and that so small an army might have been accommodated, had a proper application been made in time to the government. the gentleman must therefore be mistaken in stating those circumstances; for if the proper documents be examined, it will appear that the army received very ample supplies from the same source, some months previous to the contract made by mr. banks, which must have been in november, or early in december, and previous to the evacuation of charleston. whether it was better to adopt the means used by general greene, or those within the power of the government, i shall not pretend to determine; but i have no doubt that the government possessed both the means and the inclination to find supplies. the contract was first made by banks in november or december, and general greene did not become the guarantee until the april following; whether there were any reasons for preferring this mode to that of an application to government, will perhaps appear in the course of the investigation. mr. chairman, this contract has been considered to have operated rather as a misfortune, although it may have afforded a temporary relief; it was the occasion of much complaint, vexation, and distrust, rather than of conciliation; and that this discontent ran through the army is within the knowledge of several officers whose names could be mentioned. it is therefore necessary to bring the matter into the full view of the committee, and to have recourse to the files of the public offices, before we agree to the resolution on the table. at the same time, it is my sincere wish to render justice to the family of the deceased in every reasonable accommodation; but it does not appear to me that the family is reduced to that disagreeable situation which has been represented. the large grants that have been made by the states of georgia, north and south carolina, are still in the possession of the heirs of the deceased, and i have been informed that a gentleman offered $ , for that granted by north carolina, so late as last summer; neither have i heard that any distress has been levied upon any of these estates, or that they are so much affected, in reality, but that the claims made against them are rather of a nominal and visionary nature. but admitting that general greene was security for the united states, and that the operation had been beneficial, (which i deny;) does it appear that executions have been levied to any considerable amount, or to such an extent as to justify the present application? to me it does not appear this has been the case, neither do i believe that the estate has been reduced in the manner represented; and, whilst i say it, i honestly and sincerely hope it; under which impression, i can never accede to the resolution on the table. mr. wadsworth.--the gentleman last up has said many things to me utterly unintelligible, and others which directly militate with what has been said by the gentleman from georgia. he has, however, declared that no real or supposed personal injury shall influence him in giving his opinion or vote. i hope, sir, he will not now feel or resent those real or supposed injuries. i do believe they are not real; and from my long and intimate acquaintance with general greene, i had good opportunity to know him; a better man i never did know. that he had enemies is not to be wondered at; the nature of his command to the southward was important, critical, and difficult, and he might be constrained to do things that necessity only would justify. if he has injured any man, he has atoned for it; neither the tongue nor pen of malice have been able to affix a stigma on his character. if i ever knew a man whose heart was pure and without guile, it was general greene. yet he had enemies; no man deserved them so little. more honest fame is due to no man. and if his fortune is to be sacrificed, and his family beggared, it is a consolation that his good name will last for ever. being one of his executors, i know something of his affairs; but it was with reluctance i rose, as my attachments to him and concern for his family render it extremely difficult for me to enter on the subject. the gentleman from south carolina has told us he is acquainted with the affairs of the estates in the carolinas, and has said they are without any executions against them, the bonds on good credit, and the family in no danger of poverty, &c. i can hardly allow, sir, that he is acquainted with the affairs of general greene, even in south carolina and georgia; but if he is, i will ask him if he does not know that all the negroes from the south carolina estate are sold, and that the land is totally unproductive? that mr. rutledge has prevented executions from taking the georgia estate by his personal interference? that all the estates in rhode island and new jersey are sold? and that the hope of the justice we now ask for has delayed the sale of all the rest, to satisfy his creditors--his southern creditors? the proofs and documents alluded to by the gentleman (mr. sumter) have been before congress for several years, and the friends and executors of general greene have challenged his enemies, in every part of the union, to disprove them; and i hope no delay will now take place. the subject is fully before congress. i hope justice will be done to the widow and orphans of the late general greene, and that the investigation will now be finished, his honest fame vindicated and established, and his family saved from the ruin that awaits them. mr. hartley, in support of mr. wayne's motion, observed, that he had paid some attention to the report and the documents referred to in it, as well as the objections made to the resolutions under consideration. many of the objections, said he, have been answered by gentlemen who were nearer to the scene of action than myself; i shall strive to obviate others. the mode of conducting our affairs in south carolina does not seem to have been agreeable to the gentleman opposite to me from that state, (mr. sumter,) and he expresses his high disapprobation of many parts of it. when i disagree with that gentleman, i do it with great reluctance; for no one on this floor has a greater respect for him than myself. in a hazardous and difficult situation, or in carrying on war, or even in great political questions, the best friends may differ in the mode of conducting them; and it has too frequently happened, that such difference has tended to lessen the friendship which formerly existed. upon the whole, our arms to the southward were crowned with success; we must presume the means generally used were right. if supplies could have been furnished by the state of south carolina, it is a pity they were not granted. i say, it is possible general greene might have pursued a different mode to obtain clothing and provisions. he did not. he was of opinion no other plans could have been successfully followed but those which were adopted. the idea of his being a partner with banks & co., seems to be given up by the opposition. the mere insinuation of mr. banks and some others can have no influence against such a cloud of evidence and documents. these are so strong for the general, that they would work conviction on the greatest infidel. i shall barely advert to a part of them, as mentioned in the report, and on this head give a few observations of my own. and, first, the application to the legislature of south carolina, in order to create a competition: had he been concerned as a partner, or intended to be so, no competition through that channel would have been proposed. if he was to be a partner, the more secret the transaction, the higher the advantage. the bond of indemnity to general greene, oaths of banks and hunter, certificate from major forsyth, nathaniel pendleton's oath, charles c. pinckney's oath, (now governor of south carolina,) and the certificates of the two chancellors of south carolina, who were both high in the executive, when these transactions should have happened. besides, sir, if we consider how many partners there were concerned with banks in the different transactions, had general greene been one of the company, it must long since have been manifested to the world. the secret could not have been kept; nor can we possibly think that general greene, who was undoubtedly a man of understanding, would have expressed himself in the manner he has done, in the close of his letter from newport, dated the th of august, , had he been a partner. he says there, "thus have i given your excellency a short narration of the origin and situation of this matter, and have only to add on this subject, that i never held any commercial connection with the company, other than what concerned the public, either directly or indirectly, or ever received one farthing profit or emolument, or the promise of any one from them; and my bond of indemnity expressly declares that i have no interest, connection, or concern, in the debts for which i became bound, all which i am willing to verify on oath." would he have pledged his honor, his reputation, had he been interested? no, it is impossible! he would have been silent had he been a culprit, and not have challenged the world, as the power of detection would have laid with so many, and the shaft of envy always ready. i hope every man must be satisfied that the general was no partner. the great points of contest before the committee seem now to be-- st. did the general enter into these engagements out of personal regard to individuals, without a view to the public interest? dly. was not the good of the public his principal object? dly. under all circumstances, should not his estate be indemnified? as to the first, i cannot think that the general, out of mere personal regard to individuals, without a view to the public good, would have been bail. he had been esteemed a man of prudence, and was not a person of large fortune. how would he embarrass his family and property in such engagements? who, under mere motives of friendship, would have done so? the sum was too large; he had no interest. he got no goods or money for himself. he might have had a favorable opinion of some of the company, but his responsibility was become necessary with a view to the public good. as to the second, public good must have been his principal object. the contracts before made would not have been carried into execution, without the aid of the contract, for which the indemnity was made in april, . a great many articles were absolutely necessary to the army; they were connected with others; the necessaries could not at that critical period, or for the moment, be obtained elsewhere. the merchants, as i understand, insisted upon two conditions before they would deliver the goods: st, that all the goods should go together; d, that the commanding officer should become security. there was a necessity for an additional capital to furnish the means for supporting the army; and as most of the goods were useful and necessary, the residue might be disposed of to the best advantage, and the money arising from them be applied to the payment of the debt. public necessity and the state of things would oblige the general to agree to the first condition. the compliance with the second condition became a necessary consequence. the general's letter from newport, and general wayne's oath, nathaniel pendleton's oath, and other evidence, prove the situation of the army. as to the third point, should not his estate be indemnified? through his zeal for the public good, he has unfortunately involved his estate in difficulty. whatever the conduct of the company might be, the creditors were not to be affected either by the fraud or failure of banks and the purchasers. general greene was liable. the general, when he hears of misconduct, does all he can to save and indemnify himself, and through him the united states. securities were taken in as ample a manner as they could he obtained from the delinquents; and general greene never wished to call upon the public, until every other means failed. so late as the year he had still hopes there would be no loss; but when he found the danger, a sense of duty obliged him to come forward to save himself and family, to ask the protection of the public to indemnify him from a debt that he had contracted to save an army from mutiny and disbanding; to protect a country which otherwise would have been exposed. many exertions had he to make to feed the hungry and cover the naked; were not these for the public good, and shall his private property suffer? shall his family be reduced to beggary, be stripped of their all, to discharge what the united states are in honor and in justice bound to pay? retrospective laws, to affect rights attacked, ought never to pass; but laws have frequently been enacted to indemnify persons for a conduct, though not strictly legal, yet founded on the special circumstances of the case--the safety or honor of a nation or army, where the constitutional authority could not come forward in time. such was the treaty or system formed by the duke of marlborough and the great de witt. the dutch, instead of punishing their minister, approved the measure; it eventually tended to the safety and honor of the allies. the individual who undertakes risks for his country's good, a magnanimous government will always sanctify. we should consider the case upon substantial principles, not according to the letter, not act as the lacedæmonians did to one of their leaders; they fined him for the infringement of the letter of the law, yet for the same act rewarded the hero with a garland. the fine here ruins the general's estate, and the garland alone, i fear, in this country, will not give his children bread or a becoming education. in our late contest, the common maxims of old nations could not always be adhered to. we were obliged to act according to emergencies. in the case of general greene, he seems to have intended for the best. he helped to serve and save a country. his merit stands high indeed. i need not repeat the number of his great and glorious actions, which mark him the general and the hero. his name will be handed down with honor to succeeding ages. under all circumstances, i think his estate should be indemnified. if the committee do not like the whole of the resolution, let there be a division, as proposed by one of the gentlemen from south carolina; though i should think we might safely vote for the whole of the resolution, and let the bill make any other provisions which it may be thought necessary. mr. lee, mr. barnwell, mr. wayne, and mr. bourne, r. i., spoke in favor of agreeing to the resolutions, and mr. macon and mr. sturges against the motion. mr. sumter closed the debate in sundry remarks on extracts from letters wrote by general greene during the late war, inserted in gordon's history of the american revolution, which extracts contain unfavorable reflections on the militia of south carolina, and the patriotism of the inhabitants of that state. these reflections, mr. sumter said, were gross calumnies on, and misrepresentations of the character of that people, which he said were invalidated by facts that at that time took place, and by the general tenor of the conduct of south carolina throughout the whole course of the war. monday, january . _petition of catharine greene._ the order of the day being called for, on the report of the secretary of the treasury on the petition of catharine greene, several members objected to taking up this subject, being of a private nature, while matters of the greatest public importance demand the immediate attention of congress. the question being taken, the motion for going into committee of the whole was carried, to ; and mr. livermore took the chair. after considerable debate, the question was put for agreeing to the first resolution, in the following words: _resolved_, as the opinion of this committee, that the estate of the late major general greene ought to be indemnified for the engagements entered into by that general, with certain persons in the state of south carolina, for the purpose of obtaining supplies for the army of the united states, under his command, in the year . which was negatived, to . the committee then rose, and the chairman reported that the committee of the whole house had had under consideration a report of the secretary of the treasury on the petition of catharine greene, and had come to no resolution thereon. mr. macon then moved that the committee of the whole should be discharged from any further proceedings on the subject; which motion was agreed to. mr. bourne then laid on the table a resolution for referring the secretary's report, together with mrs. greene's petition, and the vouchers accompanying it, to a select committee, with instruction to inquire into the facts which rendered it necessary for general greene to become security to banks & co., and the nature, circumstances, and amount of the original debt, and the obligation entered into by general greene for payment thereof; with an account of the moneys or collateral security received by the obligees, or by general greene in his lifetime, or his representatives since his death, in part thereof; and the eventual loss which his estate will sustain in consequence of the said securities; and after examining all the circumstances and such further evidence as may be offered relative to the transaction, to report their opinion thereon to the house. thursday, january . an engrossed bill to ascertain and regulate the claims to half-pay and to invalid pensions was read the third time and passed. _protection of the frontiers._ the house resolved itself into a committee of the whole house on the bill for making further and more effectual provision for the protection of the frontiers of the united states. a motion being made to strike out the second section of the bill, which contemplates the raising of three additional regiments of infantry and a squadron of light dragoons, amounting in all to three thousand and forty men, exclusive of commissioned officers-- it was urged in favor of the motion, that the indian war, in which the united states are at present involved, was, in its origin, as unjustly undertaken as it has since been unwisely and unsuccessfully conducted; that depredations had been committed by the whites as well as by the indians; and the whites were most probably the aggressors, as they frequently made encroachments on the indian lands, whereas the indians showed no inclination to obtain possession of our territory, or even to make temporary invasions, until urged to it by a sense of their wrongs. a proof of this unencroaching disposition on their part plainly appeared in their conduct, after the victory they lately obtained over our troops; for, when flushed with success, they might have swept the country before them, and penetrated as far as pittsburg, they contented themselves with the advantage they had gained over their invaders, and did not attempt to invade our territories in return, although there was nowhere at hand a sufficient force to check their career. the mode of treating the indians in general was reprobated as unwise and impolitic. the indians are with difficulty to be reduced by the sword, but may easily be gained by justice and moderation;[ ] and, although their cruelties are alleged as reasons for a different conduct, and the sufferings of the white people pathetically deplored, these narratives, it was said, are at best but _ex parte_ evidence--we hear nothing of the sufferings of the indians--but if cornplanter's speech were read, it would set the matter in a very different point of view, and furnish a complete answer to all the charges of their accusers. peace, it was said, may be obtained from the indian tribes at a much less expense than would be necessary for the support of the war. to persevere in hostilities would be wasting the public money to a very bad purpose indeed; for, supposing our arms crowned with victory, what are the advantages we may expect to reap from our success? we can only gain possession of their lands--a possession that must long continue unproductive of the smallest benefit, as we already possess land sufficient--more, in fact, than we will be able to cultivate for a century to come. instead of being ambitious to extend our boundaries, it would answer a much better national purpose to check the roving disposition of the frontier settlers, and prevent them from too suddenly extending themselves to the western waters. if kept closer together, and more nearly connected with the old settlements, they would be more useful to the community at large, and would not so frequently involve us in unnecessary and expensive wars with the indians; but if permitted to rove at pleasure, they will keep the nation embroiled in perpetual warfare as long as the indians have a single acre of ground to rest upon. if the citizens of the united states were recalled within their proper boundaries, there they might, for years to come, cultivate the soil in peace, neither invaded nor invading. as the country progresses in population, and our limits are found too narrow, it will then be soon enough to contemplate a gradual extension of our frontier; but, in the mean time, it is an idle profusion of blood and treasure to carry war beyond our present line of forts. it is only exposing our arms to disgrace, betraying our own weakness, and lessening the public confidence in the general government, to send forth armies to be butchered in the forests, while we suffer the british to keep possession of the posts within our territory. as long as britain is suffered to retain these posts, we can never hope to succeed against the indians; nor ought we to trace our late misfortune to any other source than her still holding them in her possession. were they in our hands, the indians could not carry on their operations against us with the same degree of vigor as they now do; for it is from those forts that they obtain their supplies of arms and ammunition, with which they can be at all times plentifully furnished, as long as things continue on their present footing. until those posts are in our possession, it will be in vain to send our armies into the wilderness. a body of five thousand men, sent out against the indians, under the present circumstances, would be as effectually defeated as the smaller ones have already been. in those wilds, our troops have no friend at hand to furnish them with supplies, or to give them intelligence of the approach and operations of the enemy; whereas, the indians, receiving both aid and information from their friendly neighbors, can preconcert their plans, and choose, according to their own convenience, the place and the hour of attack, as they did before. it was here observed, by an honorable gentleman on the other side of the question, that we ought undoubtedly to get possession of those posts; and that we might have long since obtained it, if we had only laid a seasonable embargo on all the british shipping in our ports; though he doubted whether it would at present be worth while to take such a step, as the english have lost so great a portion of our carrying trade, in consequence of the additional tonnage laid on their vessels. in favor of the motion, it was further urged, that, supposing even the war to have been originally undertaken with justice on our side--supposing, also, that the national honor and interest called for a continuance of hostilities--yet, as it was by no means either necessary or prudent to invade the indian territory, as this had been attempted in two successive campaigns, and the event had, in both instances, been such as to afford no very flattering prospect from a third expedition of the same kind, it was thought much more advisable to content ourselves with defending the frontier; and this might be done without making so great an augmentation in the military establishment. the only use of regular troops on the frontier is to garrison the forts, and to have a standing force in the neighborhood to form a station, to which the militia may resort either for protection or supplies; but as to active service, the frontier militia and rangers were pronounced to be by far preferable to the regular troops, as being more expert woodsmen, and better habituated to the indian mode of fighting. to defend the forts, a small number of regulars would be sufficient. the present establishment of two regiments would, if completed, be amply adequate to the purpose, and, when assisted by such forces as might at all times be collected on the frontier, would be able to repel every inroad of the enemy. experience has proved that the sudden and desultory attacks of the frontier militia and rangers are ever attended with better success than the methodical operations of a regular force. the former are better calculated for expedition and surprise, making unexpected sallies, scouring the country in small bodies, harassing the indians, and intercepting their straggling parties, by whom their motions are unobserved; whereas, when a body of regulars take the field, encumbered with baggage and heavy artillery, the unavoidable slowness of their movements affords the enemy an opportunity of watching all their operations, collecting their whole force, and skulking in the woods around them till they can seize the favorable moment to strike a sudden blow, which they generally do with success, but which they could never attempt if exposed every hour to the unforeseen attacks of our woodsmen, who would keep their attention constantly engaged in all quarters, and thus prevent them from uniting in large bodies. it was further observed by some gentlemen, who even admitted the propriety of invading the indian territory, that, to effect this with success, it was by no means necessary to make such an increase in the military establishment as that contemplated in the bill. the miscarriage of the former expeditions could not (they said) be alleged as a sufficient reason; for it is well known that the former establishment was far from being complete. the regulars intended for the service of the last campaign were to have been above two thousand two hundred; the president was, besides, empowered to raise two thousand five hundred levies, in addition to the regulars; and these would, together, have constituted an army of about four thousand seven hundred men. had such a body been employed, we might reasonably have expected much better success against the indians, whose numbers were so far inferior; the whole force of the wabash tribes not amounting to above eleven or twelve hundred warriors, who never could keep the field for any length of time, but must be soon obliged to disperse, without venturing an attack upon an army of such superior strength. instead of this, our army consisted of only about twelve hundred men, and of these not above four or five hundred were regular troops; besides, had even this force been sufficient, if employed in season, the delays that had taken place in the execution of the plan would alone have been sufficient to defeat the intended purpose. during the winter, the law was passed for raising the additional troops for carrying on the war with greater vigor. the whole summer was spent in the business, and the few men that we did enlist were not raised till late in the fall. collected at length at the head of the ohio, they fruitlessly loitered away their time, till they finally erected a monument to our eternal disgrace and infamy. whatever troops are to be employed, ought to be raised with diligence and despatch, if we wish to avoid a similar miscarriage in our next attempt. the army ought not to enter the indian country till their whole force is complete. difficulties, however, and delay, equal to those of last year, may be expected in enlisting the men; and we shall have the officers in pay a considerable time without any soldiers. perhaps the former pay of the troops was too low, and proper effective men were unwilling to accept of it; if so, let it be raised, let the men be well clothed and fed, and they will more readily engage in the service. probably, also, the term of three years was an objection with many, who would otherwise have joined our standard. if enlisted only for six months, the ranks will be sooner filled; and this ought to have considerable weight with those who advocate the augmentation of the military establishment, as they cannot but know that, if we set about enlisting the number of men contemplated in the bill, and in the manner there prescribed, they cannot be raised time enough to render any service in the next campaign. the information contained in the report on the table was not, it was said, to be implicitly relied on. that report was made by a man who had not personally visited the frontier. others, who had been on the spot, were of opinion that, if two thousand levies had been raised last year, they would have been sufficient, not only for the defence of the frontier, but even for any offensive operations that might have been thought necessary. such troops, collected in the vicinity, are more competent to the undertaking than the troops now in contemplation. no complaint had been made of their conduct. whenever they were tried, they behaved as well as the regulars, and, in the action under general st. clair, they gave equal proofs of their valor. it was further urged, that the frontier militia are not only equal, but infinitely superior to any regular troops whatever, for the defence of the borders, and that they are, in fact, the only force that can be effectually employed in expeditions against the hostile indians, whose mode of fighting is familiar to them, and does not strike them with that degree of terror with which it inspires those men who enlist on the regular establishment. these latter being collected in the heart of populous cities, where the face of an indian is seldom seen, hardly know whether the indian and his horse are not the same animal. and when they approach the enemy, at the very first shout, even before he is in view, they are terrified at the idea of savage barbarity, which they have ever been taught to reflect on with horror, and, being incapable of resistance, they commit their safety to flight. to prove the superiority of the militia, gentlemen need only contrast the despatch and success of the expedition conducted by general scott, with the delays, disgrace, and mortification, which attended that under general st. clair, and consider the difference of the expense on those two occasions. the expense of such an army as the bill contemplates is an object well worthy of serious consideration, especially at the present moment, when there is scarcely a dollar in the treasury. gentlemen would also do well to advert to the progress of this business, and consider where they were likely to stop, if they went on at the present rate. at first, only a single regiment had been raised, and the expense was about $ , ; a second was afterwards added, which swelled the expense to about $ , ; and now a standing force of , men is contemplated, at an annual expense of above a million and a quarter of dollars. can this be justified in the present state of our finances, when it is well known that the secretary of the treasury, having been requested by the members from a particular state to build a light-house on a part of their coast, declined the undertaking, and alleged the want of funds as the reason? our resources, however, might be made to answer for the support of such a force as that which was intended for the service of the preceding year, and there would be little complaint or dissatisfaction among the people. very few murmurings were heard against the former establishment; but such a one as is now contemplated will be thought extravagant, will breed discontent among the citizens of the united states, and perhaps afford our neighbors in canada an opportunity to take advantage of our divided situation, and involve us in a war more dangerous than the former which separated us from great britain. apprehensions, it is said, are entertained that the object contemplated in raising these additional troops is not so much to punish and coerce the indians, as to have a standing regular force equal to what the british have on this continent. this is said to amount to about six thousand men, including those in canada. but it is to be remarked, that the british nation has not above _one thousand_ men within the limits of the united states; and yet, with this handful of troops, they not only keep the indians in awe, but even, in opposition to the wishes of the united states, retain possession of those posts which should have been ceded to us pursuant to the terms of the treaty. why, then, is it necessary, for the purpose of establishing posts and garrisoning them, to increase the standing force to so large a number as that contemplated in the clause under consideration? during our late arduous struggle for liberty, when we had to cope with the most powerful nation under heaven, the commander-in-chief had never at any one time above ten thousand men under his own immediate command; and if, with so small a force, we were able to effect so glorious a revolution, there can be no necessity of going such lengths at present, for the sake of establishing a military character. it is strange policy, indeed, to raise five or six thousand men to oppose a handful of indian banditti, whose utmost amount does not, from the documents on the table, appear to exceed twelve hundred. we are preparing to squander away money by millions; and no one, except those who are in the secrets of the cabinet, knows for what reason the war has been thus carried on for three years. but what funds are to defray the increased expense of maintaining such a force as is now contemplated? the excise is both unpopular and unproductive. the impost duties have been raised as high as is consistent with prudence. to increase them, would be but to open a door for smuggling, and thus diminish their productiveness. and if those sources of revenue fail--if our finances be thus exhausted in unnecessary wars--we shall be unable to satisfy, the public creditors, unless recourse be had to new taxes, the consequence of which may, with just reason, be deplored; whereas, if we but keep our expenses within bounds--if we nurse our finances--we shall be respectable among the nations of the earth, nor will any nation dare to insult us, or be able to do it with impunity. during the course of these observations, an honorable gentleman asked, whether this was a day set apart for rhetorical flourishes, as the galleries were open, and he saw the short-hand writers stationed at their different posts? at an early stage of the debate, an honorable gentleman had suggested, that, instead of passing a law for raising at all events the additional regiments, which, for his part, he did not think necessary, the house, if they finally determined the present establishment to be insufficient, would perhaps do better to appropriate a certain sum of money, to enable the executive to call in such additional aid as circumstances may require. to this it was objected, that it is the duty of the representatives of the people, in all appropriations of the public money, to make them for certain specific purposes. to act otherwise on the present occasion would be setting a precedent that might, in its consequences, prove highly injurious; for, although the greatest confidence may safely be reposed in the virtue and integrity of him who now fills the presidential chair, it is impossible to foresee what use may hereafter be made of the precedent by his successors, or how far it may be carried. against the motion for striking out, and in favor of the proposed augmentation of the military establishment, it was urged: that, as to the justice of the war carried on against the indian tribes, that was a question which could not admit of a doubt in the mind of any man who would allow that self-preservation and indispensable necessity are sufficient causes to justify a nation in taking up arms. if the present war be not in every respect justifiable, then there never was, nor ever will be, a just war. it was originally undertaken, and since carried on, not for the sake of conquest, but to defend our fellow-citizens, our friends, our dearest connections, who are daily exposed, in the frontier settlements, to all the rage of savage barbarity, to which they, with their wives and children, must soon fall victims, unless we speedily fly to their assistance; and, although there are some people who utterly deny the justice of any war whatever, this doctrine, however fine in theory, will hardly ever obtain in practice; for, is it to be imagined, that any set of men are of such a passive disposition as calmly to look on whilst their friends and relations are butchered before their eyes, and to refuse giving them every assistance in their power? the murders and depredations which have for years past been repeatedly committed by the savages, loudly call for redress. from various documents of unquestionable authority, now in the hands of the secretary of war, signed and attested by the executive and legislature of kentucky, by the district judge, and the captains of the militia, it appears, that, from the year to , there have been, of the inhabitants of that district, or of emigrants on their way thither, no less than fifteen hundred persons either massacred by the savages, or dragged into captivity, two thousand horses taken away, and other property plundered or destroyed to the amount of fifty thousand dollars. and there is good reason to suppose that on the other frontiers of virginia and pennsylvania the number of persons murdered or taken prisoners during the above-mentioned period would furnish a list of one thousand or fifteen hundred more. the white people, it is true, have sometimes committed depredations on the indians; but the instances have been rare (the honorable gentleman who spoke did not recollect above one or two) of their making unjust attacks upon the savages; nor did they, on those occasions, commence hostilities against them till exasperated by the strongest provocations that could possibly stimulate the human heart. this circumstance may be justly allowed as some palliation of the offence. even in these instances, however, a few individuals only were concerned; and, when the affair came to the knowledge of the state, ample reparation was made to the injured party. the general government, too, had shown an equal disposition to do justice to the indian tribes. witness the affair of the cherokees; for, as soon as congress had heard their complaints of an encroachment made on them by some of the people from the frontier of the carolinas, immediate orders were issued for obliging the intruders to evacuate the indian territory. but, notwithstanding the disposition that prevails, as well in the legislatures of those states whose frontiers are most exposed, as in the general government, to cultivate peace and amity with the neighboring indians, that desirable object is become utterly unattainable in the present posture of affairs. the frontier indians have killed a number of whites; the whites, in their turn, have made retaliation. both parties are in the highest degree exasperated against each other, and likely to continue so, in spite of every endeavor that can be made to effect a reconciliation. with minds thus irritated, it is vain to hope for peace, as long as they continue in each other's neighborhood. it is therefore necessary to form a strong barrier, to keep them asunder, unless, indeed, the advocates for a cessation of hostilities would oblige the frontier settlers to abandon their lands. but by what new-invented rule of right should the inhabitants of kentucky, and the other frontier settlers, be laid under a greater obligation than any other citizens of the united states to relinquish a property legally acquired by their purchase? were it even proposed to pacify the savages, by purchasing the lands anew, such a measure would answer no other purpose than that of procuring a temporary peace, which would soon again be interrupted by a war that would reproduce the necessity of again having recourse to the same expedient. we should have to purchase the lands again and again, without end. by thus squandering the public money, year after year, we should swell the national debt to an amount that we cannot possibly foresee. better at once to make a vigorous effort, to act in a manner becoming the national dignity, and to maintain our ground by war, since we cannot obtain a durable or an honorable peace. attempts have, at various times, been made to effect treaties of peace with the indian tribes with whom we are now at war; and, although these efforts have constantly proved ineffectual, they yet show, that neither the united states nor the state of virginia were backward on their part to adopt conciliatory measures, and to do away that animosity which had commenced on the part of the savages at an early period of the late war with great britain, and had continued to break out at intervals ever since. in the years, , ' , ' , ' , ' , and ' , offers of peace were made to them. on the last-mentioned occasion, when a treaty was proposed at the miami village, the indians at first refused to treat. they next required thirty days to deliberate; and, in the interim, the inhabitants of kentucky were expressly prohibited by the president of the united states from carrying on any offensive operations against them; yet, notwithstanding this forbearance on the part of the whites, no less than one hundred and twenty persons were killed or captured by the savages, and several prisoners roasted alive, during that short period, at the expiration of which, the indians refused to give any answer at all. on another occasion, the indians, not content with rejecting our offers of peace, proceeded even so far as to insult us, by telling us we have lands within the british posts, and asking us why we did not go and take possession of them? will it be said that we are unable to do it? is this language to be used within the united states? no! we _are_ able, abundantly able to do it, whenever we please; and if we would but retrench our expenses in some instances, which might well admit of a reduction, our ability would still increase; our finances are not quite so insufficient as some gentlemen seem to imagine, nor so easily deranged. we are still able to prove that the boasted efficiency of the general government is something more than an empty name--we can yet raise both men and money sufficient to defend the nation from either injury or insult. it is now too late to inquire whether the war was originally undertaken on the principles of justice or not. we are actually involved in it, and cannot recede, without exposing numbers of innocent persons to be butchered by the enemy; for, though we should determine to discontinue the war, can it he said that the savages will also agree to a cessation of hostilities? it is well known that they are averse to peace; and even the warmest advocate of pacific measures must therefore allow that the war is a war of necessity, and must be supported. we cannot, without impeachment both to our justice and our humanity, abandon our fellow-citizens on the frontier to the rage of their savage enemies. and although the excise may be somewhat unpopular, although money may still be wanted; what is the excise? what is money, when put in competition with the lives of our friends and brethren? a sufficient force must be raised for their defence; and the only question now to be considered is, what that force shall be? experience has proved, that the force employed in the last campaign was inadequate. it is true the establishment was not complete; but who will venture to assert that, if it had been complete, it would have been sufficient for the intended purpose? are gentlemen who assert this so well acquainted with the circumstances of the enemy, as to be able to give an accurate statement of the amount of their forces on the frontier? there are stronger opinions in favor of an augmentation of the army than can be adduced against it--opinions given by men of judgment and experience, who have themselves been on the spot, and are well acquainted with the situation of affairs in that quarter. these gentlemen, who must be allowed to be competent judges, are decidedly of opinion that the present establishment, though completed to the last man, will not furnish an adequate force to carry on the war with effect; and that it will be a hopeless attempt to open another campaign, with less than about five thousand regular troops, the number contemplated in the bill. nor ought that number to be deemed extravagant, under an idea that we have only a contemptible handful of banditti to contend with. their numbers were, last year, from authentic documents, stated at about twelve hundred warriors, from twenty-three different tribes: such was the opposition then contemplated; but it is impossible to ascertain what accessions of strength they have since received, or even what force they had engaged in the late unfortunate action, as the very men who were in the engagement do not pretend to form any just or accurate estimate of the number of their assailants; but there is good reason to suppose that they had previously entered into an association with various tribes, that have not as yet come within our knowledge. the bows and arrows used against our troops on that occasion, afford a convincing proof that they had foes to encounter from distant nations, as yet unacquainted with the use of fire-arms. nor does the account of the bows and arrows depend, for its authenticity, on newspaper evidence alone; gentlemen of unquestionable veracity, who were personally engaged in the action, have declared that they had themselves noticed the arrows flying. when we consider the warlike disposition of the indians in general, and the alacrity with which the victors are ever sure to be joined by numerous allies, we have every reason to expect a much more formidable opposition in the next campaign. it is well known that the savages place all their glory in deeds of war; and that, among them, a young man cannot make his appearance in company till he has signalized his valor by some martial achievement. when, to this powerful incentive, a new stimulus is added by the trophies obtained in the late action, it is presumable that numbers will crowd to their standard; and it strongly behooves us to prepare in time for a much more vigorous effort than any we have yet made against them. the objections drawn from the increased expense, must entirely vanish from before the eyes of any man who looks forward to the consequences of one more unsuccessful campaign. such a disaster would eventually involve the nation in much greater expense than that which is now made the ground of opposition. better, therefore, at once to make a vigorous and effectual exertion to bring the matter to a final issue, than to continue gradually draining the treasury, by dragging on the war, and renewing hostilities from year to year. if we wish to bring the war to a speedy and a happy conclusion, and to secure a permanent peace to the inhabitants on the frontier, we must employ such troops and adopt such measures as appear best calculated to ensure success. if we delay our determination until the force of the enemy be ascertained, we can make no provision at all; for the nature and circumstances of the case preclude us from the very possibility of obtaining a knowledge of their strength and numbers. and are we, meanwhile, to remain inactive and irresolute, and make no efforts to repel their intended attacks? no! whatever their numbers may be, prudence calls aloud for provision of some kind. and if experience is to have any weight with us, the example of the french and of the british points out the true mode of securing our frontier, and rendering it invulnerable to an indian foe. let us occupy posts in the vicinity of the enemy, let them be properly garrisoned and well provided, and the business is done. these will afford an opportunity of trading with the friendly tribes, and will prevent all intercourse between the whites and the indians, except under proper regulations. should hostilities be meditated by any tribes who are not in amity with us, early intelligence of their movements can be obtained; their marauding parties may either be beaten off on their approach, or intercepted on their return; opportunities may be taken of separately attacking the hostile tribes; their old men, their squaws, their children, will be exposed a great part of the year, whilst the others are out hunting. in short, if fear, hope, interest, can be supposed to have any influence on the indians, this mode of defence must be allowed to be preferable to any other, as giving the fullest scope to the operation of all those motives. a different mode has long been pursued in virginia, and adopted by the inhabitants of kentucky, but its success has not been such as to offer any inducement to the general government to follow the same plan. rangers have there been employed for a number of years to scour the frontiers; and those rangers, too, were expert woodsmen, perfectly inured to the indian mode of warfare; yet, notwithstanding their utmost vigilance, these savages still found means to commit all the murders and depredations already enumerated. it is true, however, that a frontier militia man, trained up in the woods, may be, in many respects, preferable to a regular soldier, who has not the same knowledge of the country, and of the mode of fighting; but with equal experience, (and proper men possessed of that experience, may be enlisted on the establishment,) regular troops will be found infinitely superior to any militia upon earth. every man who has ever seen militia in the field, cannot but know that a very trifling disaster, or a slight cause of discontent, is sufficient to make them disband, and forget all subordination, so far as even to neglect the means of self-defence; whereas regular troops, under proper discipline, and acting with greater steadiness and concert, are much more to be depended on, especially when the object of attack is distant, and great fatigue is to be undergone. the militia, in whatever mode they may be called out, will hardly furnish men of the proper description; if large pay be offered, the temptation will equally prevail upon those who are unfit for the service as it will upon good, effective men; besides, some of the states have no militia laws; and, even in those states which have such laws, they are gone into disuse; no dependence can therefore be placed on militia under any laws now existing. there is, indeed, a general militia law now before the house: but if it ever passes, it certainly cannot be passed in due season to answer the purpose of providing for the immediate defence of the frontier. regular troops must be raised, or nothing effectual can be done; and if to avoid the expense we refuse the only aid that may prove of any real service, we render ourselves responsible for the consequences of this parsimonious policy, which may be attended with the ruin and destruction of our fellow-citizens in the western country. the cornplanter's speech was again mentioned and called for; but, as it had been confidentially communicated by the president, an objection was made to having it read, without clearing the galleries. whereupon, an honorable member rose, and mentioned his having read it in one of the public newspapers in the state of new jersey. to this it was answered, that if any gentleman had the newspaper to produce, the speech might be publicly read from that; otherwise, although it might be very proper that the speech itself should be read, yet, as it had been confidentially received from the executive, there would be a manifest trespass on propriety and decorum in having it read with open galleries; it was therefore wished that the galleries might be cleared. the parliamentary etiquette requiring that this should be done by the house, and not by a committee, the committee rose for the purpose; and, the speaker having resumed the chair, the motion for clearing the galleries was renewed. an objection was here started by an honorable gentleman in favor of the augmentation, who said that, as some gentlemen had spoken on the popular side of the question, whilst the galleries had been open, it was unfair to preclude those of opposite sentiments from an opportunity of answering their arguments in the same public manner, and proving to the people the justice and necessity of the war. the motion, however, was persisted in, and the galleries were cleared.[ ] [the speakers in this day's debate were messrs. wayne, goodhue, boudinot, livermore, steele, parker, bourne, (rhode island,) white, and moore. mr. white and mr. moore opposed the motion; they were in favor of the augmentation proposed in the bill. the other gentlemen were in favor of striking out the clause.] friday, january . _protection of the frontiers._ the house again resolved itself into a committee of the whole house on the bill for making further and more effectual provision for the protection of the frontiers of the united states. mr. mercer rose and addressed the chair as follows: mr. chairman: i originally opposed the reference of this subject to the secretary of the treasury, on principles supported by the constitution, by the theory of free government, and from practical observation on the progress of our own, and i believe the result now before us will fully exemplify every evil predicted. let any man examine this bill, and compare it with the terms of the original reference. let it then be asked, whether the submission to devise ways and means to provide for the defence of the western frontier, authorized the plans proposed by the treasury department, that we are now giving sanction to? did it authorize a perpetual tax, irrepealable by the whole legislature, without a breach of faith, according to received doctrine? at least, so far placing the purse-strings in the hands of the executive, who may refuse an assent to the repeal; in the power of the senate also, and consequently beyond the reach of the representatives of the people, who alone are deputized by, and may be recalled by the great mass of society, and to whom the constitution expressly confines the power of originating money bills. have we, in truth, originated this money bill? do we ever originate any money bill? if a reference, such as made to the secretary, was proposed to the senate, who are a branch of the legislature, nearly of equal importance with ourselves, would it not be held a breach of the constitution? were they to propose such a plan as this to us, would it not be received with indignation? why so little jealousy of the executive department, separated by the constitution with so much care from us? of the treasury department, too, which is considered in other countries as possessing and exercising the means of corruption? it is in my judgment a direct infraction of the letter and spirit of the constitution, of the principles of free government, and i have heard no attempt to defend it, but on the ground of pitiful evasion, more dishonorable to ourselves and dangerous to the public, than an open violation, that would rouse their resentment and ensure opposition. but did the submission of a provision to defend the frontier authorize a system for the encouragement of manufactures, thereby placing the occupations and productive labor of our citizens under the direction of government, and rendering the living of the artist and subsistence of the farmer, so far equally dependent on and subservient to the views of administration? did it authorize an entire provision for the public debt, past, present, and to come? did it authorize a plan for supplying former deficiencies, which it is admitted do not exist? lastly, did it authorize an extensive increase of the sinking fund, which we are informed is one of the principal objects? it would be an affront to common sense to answer one of these queries in the affirmative--it authorized none of them. and yet these are all its offspring; these are the great objects it produced. it is true there are in the bill two or three little clauses that were authorized, and which relate to the submission, and which might well have escaped my attention, and would probably never attract the observation of the public, but for the title--a bill for the protection of the frontiers. by these clauses five hundred and twenty-three thousand dollars of the whole moneys to be for ever raised from its perpetual revenue, are appropriated for this year's campaign. after that sum is expended, we must, even the next year, look out for new taxes, and upon the same principles, as long as the indian war continues (and by the enlistments it is not contemplated to be of very short duration) new taxes must be provided, for the residue of these taxes are by this bill appropriated to other purposes, for ever, after five hundred and twenty-three thousand dollars are paid. this appropriation is unalterable even by the whole legislature, unless by a breach of public faith, or providing other equal revenue. should every year's indian war, and every national disaster excuse government for laying a perpetual tax, equal to the increased annual demand, it will be selling us defeats at a very high price; and if government are paid so well, they may be tempted to repeat the tragical representation. but what is the reflection that naturally arises from a contemplation of this bill. that administration will not even permit us to defend the helpless women and children of the frontier from the brutal ferocity of a savage foe, but on condition that the representatives surrender up for ever the sacred trust of the constitution, and place in the power and under the control of the executive and senate, a perpetual tax. unless they throw the power of regulating the labor and industry of their fellow-citizens into the hands of government, and into a mean dependence on administration; and unless they furnish a large sum of money, under the denomination of a sinking fund, for the purposes of speculation, in order to raise and lower the price of stocks at pleasure, or as may suit the views and interest of the band of favorites that are in the secret. hard and oppressive conditions! was this the object of the reference to the secretary? it was not the avowed one, nor could it have been suspected, from a simple proposition to devise ways and means to defend the frontier. a mighty fabric has been erected on this slight foundation, to hurry us into its adoption. we have been officially, i suppose, informed that the money for the war department is almost expended; that the preparations for the western expedition must stop, unless we pass the bill immediately; and thus, with the tomahawk suspended over our heads, we must give up to administration the dearest interests of the people, and sacrifice the most sacred rights of the constitution. monday, january . _protection of the frontiers._ the house again resolved itself into a committee of the whole house on the bill making farther and more effectual provision for the protection of the frontiers of the united states; and, after some time spent therein, the chairman reported that the committee had again had the said bill under consideration, and made several amendments thereto; when the same being read, some were agreed to, and others disagreed to. and then the said bill being before the house, a motion was made, and the question being put to amend the same, by striking out the second section thereof, in the words following: "_and be it further enacted_, that there shall be raised three additional regiments of infantry, each of which, exclusively of the commissioned officers, shall consist of nine hundred and twelve non-commissioned officers, privates, and musicians:" it passed in the negative--yeas , nays , as follows: yeas.--john baptist ashe, elias boudinot, shearjashub bourne, benjamin bourne, nicholas gilman, benjamin goodhue, william barry grove, samuel livermore, nathaniel macon, nathaniel niles, josiah parker, israel smith, john steele, thomas sumter, george thatcher, artemas ward, hugh williamson, and francis willis. nays.--fisher ames, abraham baldwin, robert barnwell, egbert benson, john brown, jonathan dayton, william findlay, thomas fitzsimons, william b. giles, andrew gregg, thomas hartley, daniel huger, philip key, aaron kitchell, john w. kittera, john laurance, amasa learned, james madison, andrew moore, frederick augustus muhlenberg, william vans murray, john page, cornelius c. schoonmaker, joshua seney, william smith, samuel sterrett, jonathan sturges, peter sylvester, thomas tredwell, thomas tudor tucker, abraham venable, jeremiah wadsworth, anthony wayne, and alexander white. the farther consideration of the said bill was then postponed until to-morrow. tuesday, january . the speaker laid before the house a letter from the secretary of war, covering his report on the petitions of james swaine, abraham springer, timothy mountford, sundry seamen, samuel wail, for himself and servant, john carnaghan, james shields, henry skinner, and william loring; which were read, and ordered to lie on the table. _protection of the frontiers._ the house resumed the consideration of the bill for making farther and more effectual provision for the protection of the frontiers of the united states; and the same being further amended, was _ordered_, to be engrossed, and read the third time to-morrow. wednesday, february . mr. page, from the committee to whom was referred the petition of john churchman, made a report; which was read, and ordered to lie on the table. _protection of the frontiers._ an engrossed bill for making farther and more effectual provision for the protection of the frontiers of the united states, was read the third time, and the blanks therein filled up; and on the question that the said bill do pass, it was resolved in the affirmative--yeas , nays . friday, february . a message from the senate informed the house that the senate recede from their amendments, disagreed to by this house, to the bill to establish post offices and post roads within the united states, and do agree to the amendments proposed by the house to their amendment to the said bill. _the cod fisheries._ the house resolved itself into a committee of the whole house on the bill sent from the senate, entitled, "an act for the encouragement of the bank and other cod fisheries, and for the regulation and government of the fishermen employed therein." the first section being read as follows: "_be it enacted, &c._, that the bounty, now allowed upon the exportation of dried fish of the fisheries of the united states, shall cease on all dried fish exported after the tenth day of june next; and in lieu thereof, and for the more immediate encouragement of the said fisheries, there shall be afterwards paid, on the last day of december annually, to the owner of every vessel or his agent, by the collector of the district where such vessel may belong, that shall be qualified agreeably to law, for carrying on the bank and other cod fisheries, and that shall actually have been employed therein at sea, for the term of four months at least, of the fishing season next preceding (which season is accounted to be from the last day of february, to the last day of november in every year) for each and every ton of such vessel's burden, according to her admeasurement, as licensed or enrolled; if of twenty tons and not exceeding thirty tons, one and a half dollars, and if above thirty tons, two and a half dollars, of which bounty three-eighth parts shall accrue and belong to the owner of such fishing vessel, and the other five-eighths thereof shall be divided by him, his agent or lawful representative, to and among the several fishermen who shall have been employed in such vessel, during the season aforesaid, or a part thereof, as the case may be, in such proportions as the fish they shall respectively have taken may bear to the whole quantity of fish taken on board such vessel during such season. _provided_, that the bounty, to be allowed, and paid on any vessel for one season, shall not exceed one hundred and seventy dollars." mr. giles expressed some doubt respecting the principle of the bill; and for the purpose of collecting the sense of the committee on the subject, he thought the most effectual means would be a motion to amend the bill, by striking out the whole section. he accordingly made the motion, observing at the same time, that he could not positively assert, whether the reasons which determined him against the principle of the bill, were well founded or not; that, in matters where a local preference is given, it is necessary to accommodate; and he would be happy if his objections could be removed. the present section of the bill appears to contain a direct bounty on occupations; and if that be its object, it is the first attempt as yet made by this government to exercise such authority; and its constitutionality struck him in a doubtful point of view; for in no part of the constitution could he, in express terms, find a power given to congress to grant bounties on occupations: the power is neither directly granted, nor (by any reasonable construction that he could give) annexed to any other power specified in the constitution. it might perhaps be brought in under a mode of construction already adopted by the house, viz: that of "ways and ends," by which any power whatever might be equally implied; but he wished ever to see some connection between a specified power, and the means adopted for carrying it into execution. there is a great difference between giving encouragement, and granting a direct bounty. congress have a right to regulate commerce; and any advantage thereby resulting to a particular occupation connected with commerce, comes within that authority; but when a bounty is proposed to a particular employment or occupation, this is stepping beyond the circle of commerce; and such a measure will affect the whole manufacturing and agricultural system. in all cases, the revenue, to be employed in this bounty, is drawn from all the sources of revenue in the united states, and confined to a particular object. he was averse to bounties in almost every shape, as derogations from the common right; and he thought there would be no great difficulty in proving, that a government is both unjust and oppressive in establishing exclusive rights, monopolies, &c., without some very substantial merit in the persons to whom they are granted; although even in that case, the propriety of such grants is still questionable. under a just and equal government, every individual is entitled to protection in the enjoyment of the whole product of his labor, except such portion of it as is necessary to enable government to protect the rest; this is given only in consideration of the protection offered. in every bounty, exclusive right, or monopoly, government violates the stipulation on her part; for, by such a regulation, the product of one man's labor is transferred to the use and enjoyment of another. the exercise of such a right on the part of government can be justified on no other principle, than that the whole product of the labor of every individual is the real property of government, and may be distributed among the several parts of the community by governmental discretion; such a supposition would directly involve the idea that every individual in the community is merely a slave and bondman to government, who, although he may labor, is not to expect protection in the product of his labor. an authority given to any government to exercise such a principle, would lead to a complete system of tyranny. he entertained fewer doubts, respecting the principle, as it regards political economy. all occupations that stand in need of bounties, instead of increasing the real wealth of a country, rather tend to lessen it; the real wealth of every country consisting in the active product of useful labor employed in it. it is therefore bad policy to encourage any occupation that would diminish, instead of increasing the aggregate wealth of the community; and if an occupation is really productive, and augments the general wealth, bounties are unnecessary for its support; for when it reimburses the capital employed, and yields a profit besides, it may be said to support itself. when it fails in these points, any forced advantage that is given to it by the government, only tends to decrease the wealth of the country. the subject, however, might be considered in a more favorable point of view: and that is, whether the provision be essential to the defence of the united states, and whether the bounties proposed in the bill were more than equivalent to the portion of defence that would be procured by them. the bill does not (in his opinion) contain that kind of encouragement, which is essential to the national defence. any man who takes a view of this country, must be convinced that its real support rises from the land, and not from the sea; and the opposite mistake must have arisen merely from a servile imitation of the conduct of great britain: the inhabitants of this country heretofore thought favorably of her government, and the revolution has not yet altered their former ideas respecting it. but the circumstances of the two countries will, on examination, be found widely different; britain, surrounded by the sea on every side, finds a navy necessary to support her commerce; whilst america, possessed of an immense territory, and having yet ample room to cultivate that territory, has no occasion to contend by sea with any european power: her strength and her resources are all to be found within the united states; and if she but attends to her internal resources, the object of national defence will be much better answered. mr. g. next proceeded to consider whether that portion of the national defence which might be derived from the fisheries, would not be purchased at too high a price. although the apparent intention of the bill is only to convert the present existing drawbacks into a bounty; yet the drawbacks being allowed only to the actual exportation of the fish, and the bounty being granted on the tonnage of the fishing vessels, there can be no comparative value between the drawback and the bounty; they have no necessary relation to each other, and the latter may exceed the former, or the former exceed the latter. he had made a calculation, and upon the most favorable principles, grounded on the reports of the secretary of the treasury and the secretary of state. here he produced a calculation, tending to show that the proposed bounty on the tonnage of the fishing vessels, would considerably exceed the amount of the present drawbacks. from a comparison between the bounty, and the number of sailors employed in the fisheries, he showed what an expense each man would be to the united states; and, after other remarks, observed, that even great britain, whose whole national support and defence depends on her navy, had found, that the men employed in the fisheries, though so necessary for that defence, had cost her too much; that america, whose consequence, as a nation, does not depend on a navy, ought to take a lesson from the experience of britain: that he did not wish to enter into a competition with britain and france, in supplying the different markets with fish; that, as those nations are able to hold out greater encouragement to their fishermen, than we can to ours, we would, by such a competition, only exhaust the treasury of the united states to no purpose; and upon this principle alone, he thought there was some reason to doubt the policy of the measure proposed in the section under consideration, which therefore he hoped the committee would agree to strike out, unless his objection could be obviated. mr. murray observed, that in order to demonstrate the propriety of the measure, it would be incumbent on the friends of the bill, first, to prove that the fishery trade is in a state of decay, that the stock employed in it does not yield the ordinary profits, so as to justify the merchants in embarking their capital in this branch of trade: that there is a system of defence in contemplation, which the circumstances of the country call for, and which this trade is calculated to furnish; that other branches of trade, which do not stand in need of encouragement, are not equally capable of furnishing seamen for the purpose: that this particular object so peculiarly claims the attention and encouragement of the united states, as to leave far behind every consideration of the manufacturing interest, the agricultural, &c. all this he thought necessary for gentlemen to prove, and to show some very strong necessity for encouraging one particular class of men, in preference to all others. mr. goodhue.--it happens that the fisheries of the united states are almost entirely confined to the state of massachusetts; and they furnish a considerable, a principal portion of our export trade. as we are a part of the united states, the united states in general are interested in the prosperity of that branch of business, so far at least as it contributes to the national defence: it furnishes a copious nursery of hardy seamen, and offers a never-failing source of protection to the commerce of the united states. if we engage in a war with any european power, those seamen will be excluded from their ordinary employment, and must have recourse to privateering. during the late war with great britain, we annoyed the enemy more in that line than in all others; and had it not been for privateering, it would often have been impossible to keep together our armies, who frequently, in the hour of need, were supplied by the privateers with ammunition and clothing, of which they were wholly destitute. all that we wish to obtain by this bill is, that we may not be burdened with duties. an opinion has been entertained, that no drawbacks ought to be allowed on the re-exportation of articles imported from foreign countries; but if this opinion were to obtain in practice, and no drawbacks were to be admitted, we must confine our importation to articles for our own consumption. the drawback allowed by the existing law, on the exportation of salt fish, was calculated to be only equal to the duty beforehand paid on the quantity of salt used in curing the fish; but the fishermen complain that, as the act now stands, they are wholly excluded from any participation in the benefit, which centres entirely in the coffers of the merchants. the object of the present bill is, only to repay the same money into the hands of those persons who are immediately concerned in catching the fish; and there can no reasonable objection be made to such a transfer of the drawback, as government will not lose a single dollar by the change. the gentleman from virginia (mr. giles) talks of the unconstitutionality of granting bounties; but no bounty is required. we only ask, in another mode, the usual drawback for the salt used on the fish. if we can make it appear that the bill does not contemplate any greater sums to be drawn from the treasury, than are already allowed, it is to be hoped that no further opposition will be made to the measure; and that this is really the case, can be proved by documents from the treasury office. here he read a statement and calculation to prove his assertion; and to show that the united states will probably pay one thousand dollars per annum less in the proposed bounties on the tonnage of the fishing vessels, than they would in the drawbacks on the exportation of the fish. the fishermen, he continued, are now under no control; and in consequence of this want of a proper restraint, they often take whims into their heads and quit the vessels during the fishing season. to prevent the inconveniences of this practice, the bill contemplates their exclusion from the bounty, unless they enter into such contracts and regulations, as may be found necessary for the proper and successful conducting of the business, which, from our advantageous situation, would be entirely in our hands, if we did not meet with such opposition and discouragement from foreign nations, whose bounties to their own fishermen, together with the duties laid upon our fish, would, to persons less advantageously situated than us, amount almost to a total prohibition. in the report from the secretary of state, a drawback is contemplated of the duties on all foreign articles, used by the seamen employed in the fishing trade, such as coffee, rum, &c.; but we ask it on the salt alone; nor is it asked as a bounty, but merely as a transfer from the hand of the merchant to that of the fishermen. mr. white had no objection to give the trade a proper degree of encouragement; but he did not relish the idea of granting bounties; if any gentleman would prepare an amendment, so as to make them drawbacks in fact, as well as in words, he would consent to the measure. mr. ames, after some introductory observations, adverted to the necessity of fixing some point in which both sides would agree. disputes, he said, could not be terminated--or, more properly, they could not be managed at all, if some first principles were not conceded. the parties would want weapons for the controversy. law is in some countries the yoke of government, which bends or breaks the necks of the people; but, thank heaven, in this country, it is a man's shield--his coat of mail--his castle of safety. it is more than his defence: it is his weapon to punish those who invade his rights--it is the instrument which assists--it is the price that rewards his industry. if i say that fishermen have equal rights with other men, every gentleman feels in his own bosom a principle of assent. if i say that no man shall pay a tax on sending his property out of the country, the constitution will confirm it; for the constitution says, _no duty shall be laid on exports_. if i say, that on exporting dried fish, the exporter is entitled to drawback the duty paid on the salt, i say no more than the law of the land has confirmed. plain and short as these principles are, they include the whole controversy. for i consider the law allowing the drawback as the right of the fishery, the defects of that law as the wrong suffered, and the bill before us as the remedy. the defects of the law are many and grievous. supposing , quintals exported---- the salt duty is $ , the drawback is only , -------- loss to the fishery , whereas government pays $ , , at - / cents, including charges, which are - / cents on a quintal: which is beyond what the fishery receives , -------- being a clear loss to the government of , so that, though the whole is intended for the benefit of the fishery, about one-fourth of what is paid is not so applied: there is a heavy loss both to government and the fishery. even what is paid on the export is nearly lost money; the bounty is not paid till the exportation, nor then, till six months have elapsed; whereas the duty on salt is paid before the fish is taken: it is paid to the exporter, not to the fisherman. the bounty is so indirect, that the poor fisherman loses sight of it. it is paid to such persons, in such places, and at such periods, as to disappoint its good effects; passing through so many hands, and paying so many profits to each, it is almost absorbed. the encouragement, too, is greatest in successful years, when least needed; and is least in bad fishing seasons, when it is most needed. it is a very perplexed, embarrassing regulation to the officers of government and to the exporter; hence the great charge: and, with all this charge and trouble, it is liable to many frauds. four hundred miles of coast, little towns, no officer. all these defects the bill remedies; and, besides, gives the money on condition that certain regulations are submitted to, which are worth almost as much as the money. the bill is defended on three grounds. first, it will promote the national wealth; second, the national safety; third, justice requires it: the last is fully relied on. to show that the fishery will increase the wealth of the nation, it cannot be improper to mention its great value. the export before the war brought more than a million of dollars into this country; probably it is not less at present, and no small part in gold and silver. it is computed that thirty thousand persons, including four thousand seamen, subsist by it. many say, very composedly, if it will not maintain itself, let it fall. but we should not only lose the annual million of dollars which it brings us; an immense capital would be lost. the fishing towns are built on the naked rocks, or barren sands, on the side of the sea. those spots, however, where trade would sicken and die--which husbandry scorns to till--and which nature seems to have devoted to eternal barrenness, are selected by industry to work miracles on. houses, stores, and wharves, are erected, and a vast property created, all depending on this business. before you think it a light thing to consign them to ruin, see if you can compute what they cost; if they outrun your figures, then confess that it would be bad economy, as well as bad policy, to suffer rival nations to ruin our fishery. the regulations of foreign nations tend to bring this ruin about. france and england equally endeavor, in the language of the secretary of state, to mount their marine on the destruction of our fishery. the fishers at newfoundland are allowed liberal bounties by the english government; and, in the french west indies, we meet bounties on their fish and duties on our own, and these amount to the price of the fish. from the english islands we are quite shut out; yet such is the force of our natural advantages, that we have not yielded to these rivals. the secretary of state has made these statements in his report. the more fish we catch, the cheaper; the english fish will need a greater bounty: whereas if we should yield, the english would probably need no bounty at all; they would have the monopoly. for example; suppose the english can fish at two dollars the quintal--we catch so much that we sell at one dollar and two-thirds: the loss to them is one-third of a dollar on each quintal. they must have that sum as a bounty. whereas, if we increase our fishery, a greater and a greater bounty is needed by foreign nations. the contest so painfully sustained by them must be yielded at last, and we shall enjoy alone an immense fund of wealth to the nation, which nature has made ours; and though foreigners disturb the possession, we shall finally enjoy it peaceably and exclusively. if the lands of kentucky are invaded, you drive off the invader; and so you ought. why not protect this property as well? these opinions are supported by no common authority. the state of massachusetts having represented the discouragements of the fishery, the subject has received the sanction of the secretary of state; he confirms the facts stated in the petition; he says it is too poor a business to pay any thing to government. yet, instead of asking bounties, or a remission of the duties on the articles consumed, we ask nothing but to give us our own money back, which you received under an engagement to pay it back, in case the article should be exported. if nothing was in view, therefore, but to promote national wealth, it seems plain that this branch ought to be protected and preserved; because, under all the discouragements it suffers, it increases, and every year more and more enriches the country, and promises to become an inexhaustible fund of wealth. another view has been taken of the subject, which is drawn from the naval protection afforded, in time of war, by a fishery. our coasting and foreign trade are increasing rapidly; but the richer our trade becomes, the better prize to the enemy: so far from protecting us, it would be the very thing that would tempt him to go to war with us. as the rice and the tobacco planter cheerfully pay for armies, and turn out in the militia to protect their property on shore, they cannot be so much deceived as to wish to have it left unprotected when it is afloat; especially when it is known that this protection, though more effectual than the whole revenue expended on a navy could procure, will not cost a farthing; on the contrary, it will enrich while it protects the nation. the coasters and other seamen, in the event of a war, would be doubly in demand, and could neither protect themselves nor annoy the enemy to any considerable degree; but the fishermen, thrown out of business by a war, would be instantly in action. they would, as they formerly did, embark in privateers; having nothing to lose, and every thing to hope, they would not dishonor their former fame. their mode of life makes them expert and hardy seamen. nothing can be more adventurous. they cast anchor on the banks, three hundred leagues from land, and with a great length of cable ride out the storms of winter. if the gale proves too strong they often sink at their anchors, and are food for fish which they came to take: for ever wet, the sea almost becomes their element. cold and labor in that region of frost, brace their bodies, and they become as hardy as the bears on the islands of ice: their skill and spirit are not inferior: familiar with danger, they despise it. if i were to recite their exploits, the theme would find every american heart already glowing with the recollection of them; it would kindle more enthusiasm than the subject has need of. my view is only to appeal to facts, to evince the importance of the fishery as a means of naval protection. it is proper to pass over bunker's hill, though memorable by the valor of a regiment of fishermen; nor is it necessary to mention, further, that five hundred fishermen fought at trenton. it is known, that the privateers manned by fishermen, in want of every thing, not excepting arms, which they depended on taking from their enemies, brought into port warlike stores of every kind, as well as every kind of merchandise sufficient for the army and country: the war could not have been carried on without them. among other exploits almost beyond belief, one instance is worth relating: these people, in a privateer of sixteen guns, and one hundred and fifty men, in one cruise took more than twenty ships, with upwards of two hundred guns, and nearly four hundred men. the privateers from a single district of massachusetts, where the fishery is chiefly seated, took more than two thousand vessels, being one third of the british merchant vessels, and brought in near one thousand two hundred. a hundred sail of privateers, manned by fishermen, would scour every sea in case of a war. the first question is, how much does government receive by the duty on the salt used in curing the fish which is exported? the quantity of fish must be known. several ways of information are to be explored. the secretary of state supposes the fish of to be , quintals. a treasury return of fish exported from august , , to september , , which is thirteen and one-third months, is , quintals. for a year, equal to , quintals. foreign dried fish imported from august , , to august, , , quintals; five per cent. drawback thereon is only three hundred and ten dollars, at one dollar and sixty-six cents per quintal. mr. giles is mistaken in supposing that foreign fish deducts $ , from our estimate. return of fish in seven months, from may , to december, , exported, all fish of the united states, , quintals: which, for a year, is , quintals. the medium may be fairly taken for the time past at , quintals a year. six gentlemen of marblehead certify, that , hogsheads, or , bushels of salt, were used on , - / quintals; which, for , quintals, gives , bushels. the duty, at twelve cents, is $ , , which government receives. but the charge to the united states, is, at thirteen and a half cents per quintal $ , whereof the fishery receives ten cents on each quintal exported , ------ charges as the law stands , further, this is but an estimate made up from what the last year proved. the next may be very different, and probably it will be. if more money should be demanded than $ , , we must not be accused of misleading congress. but in that case an increase would be made by law; for the more fish is exported, the more thirteen and a half cents must be paid; so that the bill creates no burden in that way. but the increase of the export of fish will probably operate in favor of government. for it is known that the economy, skill, and activity of the fishery are making progress. its success has progressed. the more fish to a vessel, the cheaper the allowance on the tonnage. therefore, the tonnage of vessels will not increase in a ratio with the increase of the fish. the very objections prove this. for they deem the encouragement too great. but any encouragement must have the effect. the difference of the agreements for distributing the fish according to the present practice, or by this bill, makes a great one in the quantity taken. the bill reforms the practice in this point. marblehead vessels take less than those from beverly. the former throw the fish into a common stock, which is afterwards divided upon a plan very unfriendly to exertion. a man works for the whole--perhaps twelve hours, and they take about eight hundred quintals to a vessel. but in beverly, the exertion is as great as can be made; eighteen hours a day, because each man has what he catches, and they catch eleven hundred quintals. marblehead seamen sailing from other towns, and dividing as last mentioned, which the bill establishes, seldom fail to catch two or three hundred quintals more than vessels and men from marblehead on the first plan. accordingly, i assert on good authority, that the increase in marblehead only may be computed at fifteen thousand quintals, merely in consequence of the reform by the bill. the best informed persons whom i have consulted, entertain no doubt that the export, in case the bill should pass, would not be less than four hundred thousand quintals, probably more; but at four hundred thousand quintals, it would add seven thousand two hundred dollars more to the salt duty; a sum more than equal to any estimate of the actual tonnage, or any probable increase of it $ , , ------ salt duty on , quintals , other facts confirm the theory, that skill and exertion are increasing in this business. in , , tons, , seaman. fish sold for $ , , . in , three-fourths of the seamen and three-fourths of the tonnage take as much fish. it is owing to this that our fishery stood the competition with foreign nations. finally, the average in future may be relied on not to be less than , quintals. salt duty on which $ , bounties , ------ wanted the calculations first made will answer the purpose, , quintals pay salt duty $ , tonnage bounty , ------ wanted , this is the mighty defect. observe the authentic return of the export of fish may be, and we can almost prove it to be, below the future export. whereas, to banish all doubt, we go to the top of the scale for the tonnage, we take what we know to be the utmost. this we might have represented more favorably if we had chosen to conceal any thing. but even this will answer our purpose. for two hundred tons are wanting in the estimate of the bounties, being nineteen thousand eight hundred, not twenty thousand, which will take off one-third of the deficient sum. the tonnage over sixty-eight, which receives nothing, is not mentioned; and which probably is not less than another third. the boats under five tons, though trifling, are to be noticed--they receive nothing. but, above all, the chances of non-compliance with the regulations are in favor of the remainder of the twelve hundred and fifty-six dollars being stopped. boats may not get twelve quintals to the ton, or vessels may have their voyages broken up, and not stay four months on the fishing ground; in either case they would receive nothing. take all these together, is it not to be doubted that twelve hundred and fifty-six dollars will remain of the forty-four thousand in the treasury? but these are trifles which i cannot believe gentlemen are anxious about. for the event cannot be reduced to a certainty. what quantity of fish will be exported, no man can tell now. but as government may receive more than it will pay, the chance may turn the other way, and it may have to pay a few hundred dollars more than it will have received. we have seen that the chance is most in favor of government. but one chance must balance the other. this answer is sincerely relied on as a good one. i barely mention that the wear of cordage, cables, sails, and anchors, is very great. these articles, on being imported, pay duties. so that it is probable the extra duty paid by the fishery on their extra consumption, will overbalance any little sums supposed to exceed in the bounty. it has been asked, as if some cunning was detected, why if the money received in the treasury to pay the drawbacks is equal to the proposed bounties, a further appropriation should be made? this cunning question admits of several very simple answers. the bill being for seven years, the average product is the proper sum to be calculated. but the three first years may fall short of the bounties, say two thousand dollars a year, which is six thousand dollars. the four last may exceed two thousand dollars, say eight thousand dollars. shall a poor fisherman wait for the whole, or if he takes his part according to the money in the treasury--for a twenty-fourth part of the bounty on his vessel, from to ? d. this delay would happen after a bad year, the very time when he would most need prompt pay. d. but fish taken this year will not be exported till december next. therefore the money will not be stopped by the drawback as the law stands, till six months after. a substitute has been proposed for the clause, to appropriate the drawback only. this is absolutely improper. for the ten cents allowed as drawback is but a part of the duty paid on salt. it is not easy to see any reason why a part stopped at the treasury should be equal to the whole paid there long before. the drawback falls near nine thousand dollars short of the salt duty received by the government. the expense of the drawback would be very heavy and useless. nor may gentlemen apprehend that government, by paying next december, will advance money to the fishery. the salt duty will have been paid, and government will have the use of the money many months before the fishermen will have a right to call for the bounties. it is left to the candor of the gentlemen who have urged this objection, whether a better or further answer is desired. after having laboriously gone through the estimate of the probable export of fish, it will not be necessary to be equally minute as to the quantity or kind of vessels which are to receive the bounty. the estimate we believe to be very high. that it is high enough, we suppose very probable from the estimate of the secretary of state, which is only nineteen thousand one hundred and eighty-five tons. this mode of paying the bounty on the tonnage is very simple and safe. the measurement is already made and costs nothing; and as it was made to pay a duty on tonnage, we are very sure that government will not be cheated by an over-measure. the mode of paying the drawback, as the law now stands, is expensive, perplexed and embarrassing; liable to frauds and delays. this intricate and disgusting detail of calculations was necessary to satisfy the committee that each of the three grounds of defence on which the bill rests, is tenable. instead of impoverishing the nation by scattering the treasures of the whole to benefit a part, it appears that we are preserving a mine of treasure. in point of naval protection, we can scarcely estimate the fishery too highly. it is always ready, always equal to the object; it is almost the only sufficient source of security by sea. our navigation is certainly a precious interest of the country. but no part of our navigation can vie with the fishery in respect to the protection it affords. there is no point which regards our national wealth or national safety, in respect to which it seems practicable to do so much with so little. we rely on the evidence before you, that the public will not sustain the charge of a dollar. those ought not to doubt the evidence who cannot invalidate it. if then the fishermen ask you to restore only their own money, will you deny them? will you return to every other person exporting dutied goods the money he has paid, and will you refuse the poor fisherman? if there must be an instance of the kind, will you single out for this oppressive partiality, that branch which is described by the secretary of state as too poor even to bear its own part of the common burden; that branch which nevertheless has borne the neglect of our nation, and the persecution of foreign prohibitions and duties; a branch which, though we have received much and expect more, both of money and services, urges no claims but such as common justice has sanctioned? mr. gerry having moved to strike out the words "bounty allowed" in order to insert _allowance made_, by way of accommodation, mr. murray observed, that the question was, whether a bounty should be given for the encouragement of the fishery: the amendment proposed by the gentleman from massachusetts (mr. gerry) did not alter the principle--it was still "_the old cocked hat_" on the one hand, and on the other, "_the cocked old hat_:" the gentleman from pennsylvania (mr. fitzsimons) had asserted, that congress have a right to alter the drawbacks, and allow them in any other mode, by which the citizens may receive back their own money; but this is not a case of that nature; for the bill says, "in case the moneys appropriated (_for the payment of the duties_) shall be inadequate, the deficiency shall be supplied from the treasury;" here the treasury is pledged for the payment of the bounties; and the question is, not on the principle of changing the drawback, but the giving encouragement to a particular branch, at the expense of the community at large. mr. barnwell observed, that those who are best acquainted with the fisheries, look on the proposed mode of encouragement as the best; and that they ought to be allowed to use the gifts of the public in the most advantageous manner: that, if he were himself concerned in the cultivation of any particular commodity, for the encouragement of which a sum were granted, he would be much surprised to meet a refusal, in case he should come forward and propose some more effectual mode of applying that grant: that even if the bounties should happen to exceed the drawbacks, by eight or ten thousand dollars, the number of seamen to be maintained would be well worth that sum: that whenever the two houses of congress and the president of the united states are of opinion that the general welfare will be promoted by raising any sum of money, they have undoubted right to raise it, provided that the taxes be uniform; that although it may not at present be an object of great consequence to america to become a maritime power, yet it is of some importance to have constantly at hand a nursery of seamen, to furnish our merchants with the means of transporting their commodities across the sea; that, whatever allowance or bounty is granted upon any particular commodity, must ever be paid by the whole, for the advantage of a part, whether it be upon cotton to the southward, upon fish to the eastward, or upon other commodities to the middle states; that if the people cannot have so much confidence in their representatives, as to trust them with the power of granting bounties, the government must be a very paltry one indeed. the object of the bill was only to allow to the fishermen, in the manner that would be most beneficial to them, the same sum that would otherwise be allowed. if, however, from time and experience, it should appear that this bounty proved an imposition on government, he would not hesitate to revoke it. mr. gerry.--the state of massachusetts asks nothing more than equal justice. we do not come forward to request favors from the united states, we only wish that the same system which is applied to other parts of the union, may be applied to us. but, in examining this question, we wish that gentlemen would not make distinctions which will not admit of a difference. the proposed allowance has been called a bounty on occupation, and is said to be very different from that encouragement, which is the incidental result of a general commercial system; but in reality it is no bounty: a bounty is a grant, made without any consideration whatever, as an equivalent; and i have no idea of a bounty, which admits of receiving from the person, on whom it is conferred, the amount of what is granted. we have imposed a duty on salt, and thereby draw a certain sum of money from the fishermen; the drawback is, in all instances, the amount of the money received; this is all we ask; and we ask it for a set of men who are as well entitled to the regard of government as any other class of citizens. it has been supposed, that the allowance made to the fishermen, will amount to a greater sum than the drawback on the exportation of the fish; but i think it has been clearly shown that this will not be the case: on the contrary, it is presumable, that the drawback on the fish would on the whole exceed the sum which is proposed to be allowed to the fishermen; sometimes it might be more, sometimes less. the calculation is made on general principles; and it is impossible to calculate to a single cent: the quantity of salt to be expended on the fish, cannot be minutely ascertained; but this was not heretofore considered as a sufficient reason why congress should refuse to allow the drawback; they allowed it, though in a different shape. it is now proposed to make a further commutation: gentlemen call this a bounty on occupation; but is there any proposition made for paying to the fishermen, or other persons concerned in the fishery, any sums which we have not previously received from them? if this were the case, it would indeed be a bounty; but if we beforehand receive from them as much as the allowance amounts to, there is no bounty granted at all. if, however, it really was a bounty on occupation, it would after all be only an indulgence similar to what has been granted to the landed and agricultural interest. we have laid on hemp a duty of fifty-four cents per hundredweight; and on beer, ale, and porter, five cents per gallon. now, i ask gentlemen, whether the professed design of those duties was to raise a revenue, or to prevent the importation of those articles? they were laid for no other purpose, than to prevent foreigners from importing them, and thereby to encourage our own manufactures; and was not that encouragement a bounty to the persons concerned in producing such articles in this country? if the duties had not been laid, the importer could sell much cheaper than he now can; and the landed interest would be under a necessity of selling cheaper in proportion. if those prohibitory duties operate as a bounty in favor of raising hemp, and of brewing beer, ale, and porter, i ask, whether, if a bounty were proposed on every quintal of fish, it might not, with the same propriety, be granted? if we have not a right to grant a bounty in the one case, we have as little right to grant it in the other. a calculation has been offered to show that the proposed allowance will exceed the amount of the present drawbacks, by ten thousand dollars a year; but that calculation has been proved to be erroneous. suppose, however, that this was the fact, what comparison is there between such a tax on the citizens of the united states, and the tax borne by the citizens of massachusetts, for the defence of the western frontier? a commercial war is waged against the american fisheries, by foreign nations, who lay heavy duties on the american fish, and apply the produce of those duties in bounties to their own fishermen; and their fisheries being less extensive than ours, the duty thus imposed on our fish, and bestowed in bounties to their vessels, operate in a twofold proportion to the discouragement of our fishermen, and the encouragement of theirs. i wish to know on what principle gentlemen can expect, that the citizens of massachusetts should contribute two hundred thousand dollars, or perhaps a greater sum, for the protection of the western frontier against the indians, when no contribution is made to support the commerce of massachusetts, which, without this support, will be as effectually ruined, as if their vessels were captured by an enemy. the principle is carried farther with respect to the protection of the frontier: we have voted large sums as presents to the savages, to keep them friends to the frontier settlers; there is, however, no clause in the constitution that will authorize a measure of this kind: it is true, indeed, we have a power to regulate trade and commerce with the indian tribes; but does that give us a power to render the united states tributary to the savages? and if we make them such grants every year, do we not in fact become tributary to them? the gentleman from virginia (mr. giles) says that although this plan of encouraging the fisheries may be wise policy in britain, as being on all sides surrounded by the sea, yet the united states will not equally find their account in pursuing the same plan. the state of virginia is, in point of exposure from the sea, very differently circumstanced from the state of massachusetts: _we_ have a vast extent of country four hundred and fifty miles of sea-coast, exposed; the citizens of all the towns along the coast are obliged to pursue marine occupations and i hope the gentleman does not wish that the country should be depopulated, and the inhabitants driven off to settle the western territory. the state of virginia is very happily circumstanced with respect to a marine war: should such an event take place, that state is pretty secure from depredations; but when we consider how much the inhabitants of massachusetts are exposed in a case of that kind, we ought to look forward, and make some provision for their defence: they have as good a right to expect that government will make some arrangements for their protection, as that they shall be obliged to contribute for the defence of the western frontier. but their commerce, it seems, must not be supported! taxes however must be laid; and those taxes applied to encourage the former, and to bribe the indians into peace! is this fair? is this pursuing a liberal system of politics? will this reconcile the minds of our people to the general government? if so reasonable a proposition be neglected by the house, it will convince the citizens of that state, that it is the object of government to destroy their commerce, and to make them entirely dependent on the agricultural interest. here mr. gerry read a statement, to show the diminution of the revenue in consequence of the failure of the fisheries; and added, to support the fisheries, is to support the revenue: by that staple, the citizens of massachusetts are enabled to pay the revenue that is expected from them; and, by an attempt to save ten thousand dollars, government will probably sacrifice a hundred thousand; and besides, lose the confidence of the citizens of that state. the only question now is, whether this be a direct bounty, or simply a commutation of the allowance already granted by congress? if the latter be the case, i can see no reason why we should refuse our assent to a proposition, which is only calculated to do justice to the people concerned, and to give encouragement to a very important branch in the united states; especially as the proposition will even have a tendency to increase the revenue. mr. williamson.--it has been urged with great propriety, in favor of the bill now submitted to our consideration, that the operation of our laws should in all cases tend to encourage useful industry; that while we are giving back the duties on all other foreign goods which are exported, it would be unjust and cruel to refuse a full drawback of the duties on salt which may be exported, especially when the circumstances of its exportation are attended with an increase of riches and strength to the nation. impressed as i am with the force of these arguments, and desirous as i am to protect and encourage the native seamen of america, by all prudent, practicable, and constitutional means, i shall nevertheless find it my duty to vote for striking out the first section of the bill, because it proposes to give a bounty for the encouragement of the vessels employed in the fisheries. we have been told that the name is improper; that it is simply a drawback of the duty upon salt; and gentlemen have produced a very ingenious calculation, by which they attempt to prove, that in some years it may happen that the whole duty on the salt will not be repaid; but they admit that in some years the drawback or bounty will exceed the duty. it is certainly their opinion--and in this we are perfectly agreed--that the money to be paid will be more than that received, else there had been no use for so large an appropriation. we shall not trouble the committee with calculations on this subject. it is conceded, that the encouragement to be given, probably will exceed the full drawback of the duty on salt. in other words, a douceur or a proper bounty is to be given: let us call it one thousand dollars per annum. is it within the powers of this congress to grant bounties? i think not; and on this single position i would rest the argument. in the constitution of this government there are two or three remarkable provisions, which seem to be in point. it is provided, that direct taxes shall be apportioned among the several states according to their respective numbers. it is also provided, that all duties, imposts, and excises, shall be uniform throughout the united states; and it is provided, that no preference shall be given, by any regulation of commerce or revenue, to the ports of one state over those of another. the clear and obvious intention of the articles mentioned was, that congress might not have the power of imposing unequal burdens; that it might not be in their power to gratify one part of the union by oppressing another. it appeared possible, and not very improbable, that the time might come, when, by greater cohesion, by more unanimity, by more address, the representatives of one part of the union might attempt to impose unequal taxes, or to relieve their constituents at the expense of other people. to prevent the possibility of such a combination, the articles that i have mentioned were inserted in the constitution. suppose a poll-tax should be attempted; suppose it should be enacted that every poll in the eastern states shall pay a tax of half a dollar, and every poll in the southern states should pay a tax of one dollar. do you think we should pay the tax? no certainly. we should plead the constitution, and tell you that the law was impotent and void. but we have been told, that congress may give bounties for useful purposes; that is to say, they may give bounties for all imaginable purposes; because the same majority that votes the bounty will not fail to call the purpose a good one. establish the doctrine of bounties, and let us see what may follow. uniform taxes are laid to raise money, and that money is distributed--not uniformly; the whole of it may be given to the people in one end of the union. could we say, in such a case, that the tax had been uniform? i think not. there is certainly a majority in this house who think that the nation would be stronger and more independent, if all our labor was performed by free men. this object might be promoted by a bounty. let a poll-tax be laid, according to the constitution, of one dollar per poll: in this case, sixty cents must be paid for each slave; and the number of slaves being , , their tax would amount to $ , . to encourage the labor of citizens, let congress then give an annual bounty of one dollar to every free man who is a mechanic, or who labors in the field. we might be told that the bounty was small, and the object was good; but the measure would be most oppressive, for it would be a clear tax of rather more than three hundred thousand dollars on the southern states. perhaps the case i have put is too strong--congress can never do a thing that is so palpably unjust--but this, sir, is the very mark at which the theory of bounties seems to point. the certain operation of that measure is the oppression of the southern states, by superior numbers in the northern interest. this was to be feared at the formation of this government, and you find many articles in the constitution, besides those i have quoted, which were certainly intended to guard us against the dangerous bias of interest, and the power of numbers. wherefore was it provided that no duty should be laid on exports? was it not to defend the great staples of the southern states--tobacco, rice, and indigo--from the operation of unequal regulations of commerce, or unequal indirect taxes, as another article had defended us from unequal direct taxes? i do not hazard much in saying, that the present constitution had never been adopted without those preliminary guards in it. establish the general doctrine of bounties, and all the provisions i have mentioned become useless. they vanish into air, and like the baseless fabric of a vision, leave not a trace behind. the common defence and general welfare, in the hands of a good politician, may supersede every part of our constitution, and leave us in the hands of time and chance. manufactures, in general, are useful to the nation; they promote the public good and general welfare. how many of them are springing up in the northern states? let them be properly supported by bounties, and you will find no occasion for unequal taxes. the tax may be equal in the beginning--it will be sufficiently unequal in the end. we are told, that a nursery of seamen may be of great use to the nation, and the bounty proposed is a very small one. these, sir, are the reasons why i have marked this as a dangerous bill; the most dangerous innovations are made under these circumstances. to begin with a great bounty would be imprudent, and to give a small bounty for a doubtful purpose, might deserve a worse epithet. half a million of dollars per annum would have been too much for a beginning, and perhaps a bounty on the use of sleighs, though they are convenient for travelling in winter; or a bounty on stone fences, though they are durable, would not at this time be prudent. the object of the bounty, and the amount of it, are equally to be disregarded in the present case; we are simply to consider whether bounties may safely be given under the present constitution. for myself, i would rather begin with a bounty of one million per annum than one thousand. i wish that my constituents may know whether they are to put any confidence in that paper called the constitution. you will suffer me to say, that the southern states have much to fear from the progress of this government, unless your strength is governed by prudence. the operation of the funding system has translated at least two millions of dollars from the southern states, that is to say, from georgia, the carolinas, and virginia, to the northern states. the interest of that sum, when it shall be six per cent., will be $ , ; but the quota of those states is at least one-third of the whole; whence it follows, that they must pay forty thousand dollars every year, in the form of interest to the northern states. this, it seems, is not sufficient, and other measures are to be adopted for draining the southern states. bounties to promote the general welfare are already brought forward. we shall not hear of a bounty for raising rice, or preparing naval stores. if that was the question, the general welfare would not have such prominent features. unless the southern states are protected by the constitution, their valuable staples, and their visionary wealth, must occasion their destruction. three short years has this government existed--it is not three years--but we have already given serious alarms to many of our fellow-citizens. establish the doctrine of bounties, set aside that part of the constitution which requires equal taxes and demands similar distributions, destroy this barrier, and it is not a few fishermen that will enter, claiming ten or twelve thousand dollars, but all manner of persons--people of every trade and occupation--may enter at the breach, until they have eaten up the bread of our children. perhaps i have viewed this project in too serious a light; but if i am particularly solicitous on the subject of finance, that we do not even seem to depart from the spirit of the constitution, it is because i wish that the union may be perpetual. the several states are now pretty well relieved from their debts, and our fellow-citizens in the southern states have very little interest in the national funds; press them a little with unequal taxes, and the remedy is plain. while i would shun bounties, as leading to dangerous measures, i am not inattentive to every argument that has been advanced by the honorable member who first rose in defence of the bill. that gentleman tells us, that more than a bushel of salt is used in curing a quintal of fish. if this fact be established, the former act should be amended, by giving a greater drawback. he says the drawback, as it is now paid to the merchant, does not operate so as to encourage the seamen, who have most need of such assistance. this is very probable, and the parties may be relieved by dividing the drawback in the very manner that is proposed by the bill. if it is true that the proposed bounties will not exceed the average of the drawback that should be paid on salt, why do they contend about names, unless they are solicitous about the precedent? if our object is to encourage industry, and to increase our commerce, by sending fish to a foreign market, we must adhere to the drawback; for, according to the terms of the bill, the bounty is to be paid, though every fish that is caught should be consumed in the country; in which case we should be paying a visionary drawback, when nothing was exported. according to the terms of the bill, there is no proportion between the labor and the reward, so far as the bank fishery is concerned; the bounty in all cases being the same. having exercised your patience in objecting to this new system of bounties, and having hinted on some objections to the general operations of the bill, so far as industry and enterprise may be desired, i shall, in a few words, submit the outline of a plan that seems to comprehend all the useful parts of the bill, without any speculation upon bounties. if the drawback on dried fish exported, is not equal to the duty on the salt used in curing such fish, let the drawback be increased to eleven cents or twelve cents, as the case may be. let us suppose that the drawback for the next year will be equal to the drawback on the last year; and let that sum of money, being the expected drawback, be divided between the seamen and owners, according to the terms of the bill. the accounts must be made up annually. if the drawback exceeds the allowance that had been made, the difference will be considered as advanced to the fishery, and the allowance for the next year must be somewhat reduced, according to the actual amount of the drawback. if the fishermen are more fortunate or more active, and the exports are increased, the allowance for the next year must be raised. the rule being fixed by law, all that remains, being pure calculation, may be done from year to year by the executive. every important object of this bill, that has been presented to our view, may be obtained by safe and constitutional steps. why should a man take a dangerous and a doubtful path, when a safe one presents itself? if nothing more is desired than to regulate and protect the fishery, the bill may be altered and accommodated to that purpose. if the theory of bounties is to be established, by which the southern states must suffer while others gain, the bill informs us what we are to expect. the committee now rose, without taking any question. monday, february . a member from maryland, to wit, john francis mercer, returned to serve in the room of william pinkney, resigned, appeared, and took his seat in the house. a petition of the tanners of the town of newark, in the state of new jersey, was presented to the house and read, stating the inconveniences they suffer from the erection of mills for the purpose of grinding tanners' bark for exportation, and praying that congress will adopt such measures for their relief as may appear just and right. ordered to lie on the table. _the cod fisheries._ the house again resolved itself into a committee of the whole house on the bill sent from the senate, entitled "an act for the encouragement of the bank and other cod fisheries, and for the regulation and government of the fishermen employed therein." mr. goodhue.--the gentleman last up (mr. williamson) says, that an appropriation of money being made by the bill now before us, and the treasury standing pledged for the payment, therefore a direct bounty is granted. at present, we pay in drawbacks about $ , ; but we cannot say that this sum will be adequate to the payment of the drawbacks next year; for, if a greater quantity of fish be taken, a greater sum, of course, must be allowed; and, as the sum depends entirely on the quantity of fish, it is impossible to ascertain beforehand the precise amount. there is not, however, in the whole bill, any thing of a bounty except the bare name. the gentleman allows that we may commute the present drawbacks, and give them to the fisherman instead of the merchant; but it is impossible to do this with safety in any other mode than that pointed out in the bill. shall we leave it to the fisherman, to be determined by his oath? this would not be advisable. the plan proposed is a much less exceptionable one. it is founded on a calculation that a certain quantity of tonnage is employed in taking a certain quantity of fish. on this calculation the allowance is apportioned to the tonnage. if gentlemen think the allowance too high, let the sum be reduced; but let it not be stigmatized as a bounty. it is no such thing. the word "bounty" is an unfortunate expression, and i wish it were entirely out of the bill. mr. livermore.--the bill now under consideration has two important objects in view. the one is, to give encouragement to our fishermen, and, by that encouragement, to increase their numbers; the other is to govern those fishermen by certain laws, by which they will be kept under due restraint. both these objects are of great importance to such persons as choose to employ their capitals in the fishery business. and i believe it will not be disputed that the business itself is of considerable importance to the united states, insomuch as it affords a certain proportion of remittance or exportation to foreign countries, and does not impoverish the country, but enriches it by the addition of so much wealth drawn from the sea. it is the object of those gentlemen who favor the bill that the fishermen should have some encouragement, not given to them at the expense of the united states, but directed to them out of what was in the former law called a drawback of the duty on salt. the calculation, as i understand it, has been made as nearly as possible to give that drawback, not to the merchants who export the fish, but to the fishermen who take it, in order to increase that description of men, without whose assistance it is vain to expect any benefit from the fisheries; for, if the merchants at present engaged in that branch possessed the whole capital of the united states, yet, if they cannot get fishermen, they cannot carry on the fishery. this is done by a particular class of men, who must be not only expert seamen, but also accustomed to taking the fish and curing it. if these men cannot be had, the capital cannot be employed, and those who undertake the business cannot carry it on, or reap any profit from it. whilst the drawback is payable only to the merchant who exports the fish, it is impossible to convince the fishermen that they reap from it any advantage whatever; or, if the more discerning among them do perceive any advantage in it, the others who are not so clear-sighted cannot discern it, and are therefore not disposed to undertake the business. it is, however, of considerable importance to the merchants that the fisherman should receive a proper encouragement, even if they were obliged to allow him a bounty out of their own pocket. the government of the fishermen, after their engagement in this business, is also necessary to be provided for; otherwise, frequent instances may occur among that class of men of quitting one vessel to embark on board another, or of shipping themselves for a foreign voyage, before the expiration of the fishing season. in the latter case, the vessel lies useless on the owner's hands, and he, together with the whole expense of the outfit, loses all his prospects of future gain. the two objects here mentioned are fully provided for in the bill. still, however, it is objected to. but what is the objection? it is, that the word "_bounty_" is twice used in this clause. let us now see what advantage will result from striking out this obnoxious "_bounty_." none at all. the bill says it shall cease; and have gentlemen any objection to the bounty's ceasing? since the bounty is to cease by this bill, what advantage in striking it out? the sense would still remain the same; and i do not know why we should make a law expressly to strike out the word "bounty," but to strike out the bounty itself. it is strange to me that any gentleman, whether he is for giving a great bounty or no bounty at all, should quarrel with this unfortunate word. there is, indeed, one part of the section which i will readily consent to strike out, and i believe every other gentleman who is in favor of the bill will consent to it likewise; and that is the clause which provides that the bounty to be allowed and paid on every vessel for one season, shall not exceed one hundred and seventy dollars. if, when the vote is taken on the section, there does not appear a majority of the house in favor of striking out the whole, we may then move for striking out the _proviso_, if it be offensive to any gentleman. if it be not offensive, it may remain. if gentlemen are disputing only because the word "_bounty_" is in the bill, they may be perfectly relieved from their uneasiness on that score; for the bill expressly says, "that the bounty now allowed upon the exportation of dried fish of the fisheries of the united states shall cease, and in lieu thereof," a different kind of encouragement is to be given. here is no reason to dispute about a word. if gentlemen are disposed to consent to the principle of the bill, that the drawback of the duties on salt shall be commuted for a certain sum, to encourage the fishermen, they will vote in favor of the bill; if not, they will vote against it. but it is impossible for me to conceive why any gentleman under heaven should be against it. it is only fixing, for the merchants engaged in this branch, a clear and equitable ratio for distributing among the fishermen that encouragement which they think necessary in order to attach those people to the business, and to prevent them from going to other occupations on land. the bill is an important one, and will increase that branch of business, which is very useful to the community. it does not lay a farthing of bounty or duty on any other persons than those who are immediately concerned in it. it will serve them, and will not injure any body. mr. laurance said, from examining the section, he conceived it contemplated no more than what the merchant is entitled to by existing laws. the merchant is now entitled to the drawback; but it is found by experience that the effect has not been to produce that encouragement to the fishermen which was expected; and he presumed the way was perfectly clear to give a new direction to the drawback, and this is all that is aimed at in the bill. he supposed that the clause had no necessary connection with the question which had been started respecting the right of the government to grant bounties; but, since the question has been brought forward, it may be proper to consider it. in discussing the question, he inquired, what has congress already done? have we not laid extra duties on various articles, expressly for the purpose of encouraging various branches of our own manufactures? these duties are _bounties_ to all intents and purposes, and are founded on the idea only of their conducing to the _general interest_. similar objections to those now advanced were not made to these duties. they were advocated, some of them, by gentlemen from the southward. he traced the effects of these duties, and showed that they operated fully as indirect bounties. mr. l. then adverted particularly to the constitution, and observed that it contains _general_ principles and powers only. these powers depend on _particular_ laws for their operation; and on this idea, he contended that the powers of the government must, in various circumstances, extend to the granting bounties. he instanced, in case of a war with a foreign power, will any gentleman say that the general government has not a power to grant a bounty on arms, ammunition, &c., should the general welfare require it? the general welfare is inseparably connected with any object or pursuit which in its effects adds to the riches of the country. he conceived that the argument was given up by gentlemen in opposition to the bill, when they admit of encouragement to the fishermen in any possible modification of it. he then adverted particularly to the fisheries, stated the number of men employed, the tons of shipping necessary to export the fish taken, and inferred the sound policy of encouraging so important a branch of business. gentlemen say that we do not want a navy. grant it; but can they say that we shall never have a war with any european power? may not the time arrive when the protection to the commerce of this country, derived from this source, may be of the utmost necessity to its existence? adverting to mr. williamson's objection from the unequal operation of bounties, and who had referred to the article of the constitution which says that taxes shall be equal in all the states, mr. l. observed, that this article in the constitution could only respect the _rates_ of the duties, and that the _same_ duties should be paid in virginia that are paid in new york--at the northward as at the southward. it surely could not mean that every individual should pay exactly the same sum in every part of the union. this was a provision that no law could possible contemplate. he concluded by a summary recapitulation of his arguments, and saying he hoped the section would be retained. mr. madison.--in the conflict i feel between my disposition on one hand to afford every constitutional encouragement to the fisheries, and my dislike, on the other, of the consequences apprehended from some clauses of the bill, i should have forborne to enter into this discussion, if i had not found, that over and above such arguments as appear to be natural and pertinent to the subject, others have been introduced which are, in my judgment, contrary to the true meaning, and even strike at the characteristic principles of the existing constitution. let me premise, however, to the remarks which i shall briefly offer, on the doctrine maintained by these gentlemen, that i make a material distinction, in the present case, between an allowance as a mere commutation and modification of a drawback, and an allowance in the nature of a real and positive bounty. i make a distinction also, as a subject of fair consideration at least, between a bounty granted under the particular terms in the constitution, "a power to regulate trade," and one granted under the indefinite terms which have been cited as authority on this occasion. i think, however, that the term "bounty," is in every point of view improper as it is here applied, not only because it may be offensive to some, and in the opinion of others carries a dangerous implication, but also because it does not express the true intention of the bill, as avowed and advocated by its patrons themselves. for if, in the allowance, nothing more is proposed than a mere reimbursement of the sum advanced, it is only paying a debt; and when we pay a debt, we ought not to claim the merit of granting a bounty. it is supposed by some gentlemen, that congress have authority not only to grant bounties in the sense here used, merely as a commutation for drawbacks, but even to grant them under a power by virtue of which they may do any thing which they may think conducive to the "general welfare." this, sir, in my mind, raises the important and fundamental question, whether the general terms which had been cited, are to be considered as a sort of caption or general description of the specified powers, and as having no further meaning, and giving no further power than what is found in that specification; or as an abstract and indefinite delegation of power extending to all cases whatever; to all such, at least, as will admit the application of money, which is giving as much latitude as any government could well desire. i, sir, have always conceived--i believe those who proposed the constitution conceived, and it is still more fully known, and more material to observe that those who ratified the constitution conceived--that this is not an indefinite government, deriving its powers from the general terms prefixed to the specified powers, but a limited government, tied down to the specified powers which explain and define the general terms. the gentlemen who contend for a contrary doctrine are surely not aware of the consequences which flow from it, and which they must either admit or give up their doctrine. it will follow, in the first place, that if the terms be taken in the broad sense they maintain, the particular powers afterwards so carefully and distinctly enumerated would be without any meaning, and must go for nothing. it would be absurd to say, first, that congress may do what they please, and then that they may do this or that particular thing; after giving congress power to raise money, and apply it to all purposes which they may pronounce necessary to the general welfare, it would be absurd, to say the least, to superadd a power to raise armies, to provide fleets, &c. in fact, the meaning of the general terms in question must either be sought in the subsequent enumeration which limits and details them, or they convert the government from one limited, as hitherto supposed, to the enumerated powers, into a government without any limits at all. it is to be recollected, that the terms "common defence and general welfare," as here used, are not novel terms, first introduced into this constitution. they are terms familiar in their construction, and well known to the people of america. they are repeatedly found in the old articles of confederation, where, although they are susceptible of as great latitude as can be given them by the context here, it was never supposed or pretended that they conveyed any such power as is now assigned to them. on the contrary, it was always considered as clear and certain, that the old congress was limited to the enumerated powers, and that the enumeration limited and explained the general terms. i ask the gentlemen themselves, whether it ever was supposed or suspected that the old congress could give away the moneys of the states in bounties, to encourage agriculture, or for any other purpose they pleased? if such a power had been possessed by that body, it would have been much less impotent, or have borne a very different character from that universally ascribed to it. the novel idea now annexed to these terms, and never before entertained by the friends or enemies of the government, will have a further consequence, which cannot have been taken into the view of the gentlemen. their construction would not only give congress the complete legislative power i have stated--it would do more--it would supersede all the restrictions understood at present to lie on their power with respect to the judiciary. it would put it in the power of congress to establish courts throughout the united states, with cognizance of suits between citizen and citizen, and in all cases whatsoever. this, sir, seems to be demonstrable; for if the clause in question really authorizes congress to do whatever they think fit, provided it be for the general welfare, of which they are to judge, and money can be applied to it, congress must have power to create and support a judiciary establishment, with a jurisdiction extending to all cases favorable, in their opinion, to the general welfare, in the same manner as they have power to pass laws and apply money, providing in any other way for the general welfare. i shall be reminded, perhaps, that according to the terms of the constitution, the judicial power is to extend to certain cases only, not to all cases. but this circumstance can have no effect in the argument, it being presupposed by the gentlemen that the specification of certain objects does not limit the import of general terms. taking these terms as an abstract and indefinite grant of power, they comprise all the objects of legislative regulation, as well such as fall under the judiciary article in the constitution, as those falling immediately under the legislative article; and if the partial enumeration of objects in the legislative article does not, as these gentlemen contend, limit the general power, neither will it be limited by the partial enumeration of objects in the judiciary article. there are consequences, sir, still more extensive, which, as they follow clearly from the doctrine combated, must either be admitted, or the doctrine must be given up. if congress can apply money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may establish teachers in every state, county, and parish, and pay them out of the public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the union; they may undertake the regulation of all roads, other than post roads. in short, every thing, from the highest object of state legislation, down to the most minute object of police, would be thrown under the power of congress; for every object i have mentioned would admit the application of money, and might be called, if congress pleased, provisions for the general welfare. the language held in various discussions of this house, is a proof that the doctrine in question was never entertained by this body. arguments, wherever the subject would permit, have constantly been drawn from the peculiar nature of this government, as limited to certain enumerated powers, instead of extending, like other governments, to all cases not particularly excepted. in a very late instance--i mean the debate on the representation bill--it must be remembered, that an argument much urged, particularly by a gentleman from massachusetts, against the ratio of one for thirty thousand, was, that this government was unlike the state governments, which had an indefinite variety of objects within their power; that it had a small number of objects only to attend to, and therefore that a smaller number of representatives would be sufficient to administer it. several arguments have been advanced to show, that because, in the regulation of trade, indirect and eventual encouragement is given to manufactures, therefore congress have power to give money in direct bounties, or to grant it in any other way that would answer the same purpose. but surely, sir, there is a great and obvious difference, which it cannot be necessary to enlarge upon. a duty laid on imported implements of husbandry, would, in its operation, be an indirect tax on exported produce; but will any one say, that by virtue of a mere power to lay duties on imports, congress might go directly to the produce or implements of agriculture, or to the articles exported? it is true, duties on exports are expressly prohibited; but if there were no article forbidding them, a power directly to tax exports could never be deduced from a power to tax imports, although such a power might directly and incidentally affect exports. in short, sir, without going further into the subject, which i should not have here touched on at all but for the reasons already mentioned, i venture to declare it as my opinion, that were the power of congress to be established in the latitude contended for, it would subvert the very foundation, and transmute the very nature of the limited government established by the people of america; and what inferences might be drawn, or what consequences ensue from such a step, it is incumbent on us all well to consider. with respect to the question before the house, for striking out the clause, it is immaterial whether it be struck out, or so amended as to rest on the avowed principle of a commutation for the drawback; but as a clause has been drawn up by my colleague, in order to be substituted, i shall concur in a vote for striking out, reserving to myself a freedom to be governed in my final vote by the modification which may prevail. mr. bourne, of massachusetts-- mr. chairman: i think little can be added after so full a discussion of the subject before you. the object of the first section in this bill is intended for the relief of the fishermen and their owners. they complain that the law now in force was meant for their benefit, by granting a drawback on the fish exported; this they find by experience is not the case, for they say, that neither the fishermen who catch the fish, nor the importer of the salt, receive the drawback; and i rather suppose, sir, it is the case. the owners of the greater part of the fishing vessels are not merchants, neither do they import the salt they consume; but when the fish they take are cured for market, they are sold at the market price; and it frequently happens that those persons who purchase the fish are not the exporters of them, or the importers of the salt, but a third person, who purchases with a prospect of selling them at a profit, is the exporter; and when it so happens, neither the fisherman who catches the fish, nor the importer of the salt, receives any benefit from the drawback, unless the purchaser (the third person) give a greater price in contemplation of the drawback, which i think is not to be supposed. is it worthy the attention of government that the cod fishery should be preserved? it appears to me that it is. when we consider the labor and assiduity bestowed on this object by our ministers, at the settlement of peace between us and great britain, and the care then taken to secure this privilege, as appears by the treaty--[here mr. b. read that part of the treaty which secures to us the fishery, he then proceeded]--and consider the struggle made to deprive us of this inestimable branch of commerce, i cannot suppose that any one would, at this day, voluntarily relinquish it, and suffer great britain to monopolize this branch, and supply the mediterranean, french, and other markets. great britain, at present, enjoys a sufficient portion of this commerce, while france is confined to the narrow limits of st. peters and miquelon. if we relinquish this branch of the cod fishery, what is left us? our whale fishery is nearly at an end, and unless government speedily interpose, by granting relief, we shall totally lose it. does not the british government wish to deprive us of this branch also? have not letters of agents been sent to the island of nantucket, as well as new bedford, where this branch of business is principally prosecuted, inviting the whale fishermen to remove, and offering them permanent settlements at milford-haven, at the expense of their government? this must be viewed as a great encouragement, in addition to their bounties on oil, to a class of poor men employed in that business. if the cod fishery is relinquished, the fishermen have only to remove to the opposite shore of nova scotia, where they will find encouragement fully adequate to their services--of all which they are not unapprised. by encouraging this class of men, your revenue will be increased; for in return for the fish exported, you will receive sugar, coffee, cocoa, indigo, molasses, pimento, cotton, dye-woods, rum, wine, salt, fruit, and other articles subject to duty, and consumed in the country. and again, your treasury will receive an excess by the provision in this bill; for i presume the greater proportion of vessels employed in this business are from twenty to forty tons; the town of marblehead, perhaps, has principally large ones. suppose, then, a vessel of thirty tons obtains, in a season, six hundred quintals of fish? (a very moderate voyage indeed,) her tonnage is seventy-five dollars; the drawback on exportation would be seventy-eight dollars; so that your treasury retains three dollars gain by this bill, which would be a loss on the drawback. mr. chairman, i think, upon the whole, that granting the encouragement to the fishermen and their owners, held out in the bill, would prove very beneficial to the united states; i hope, therefore, the section before you will not be struck out. at this point, the committee rose, and had leave to sit again. tuesday, february . _ordered_, that the petitions of the tanners of the town of newark, in the state of new jersey, which was presented yesterday, be referred to mr. boudinot, mr. white, mr. thatcher, mr. bourne, of rhode island, and mr. niles; that they do examine the matter thereof, and report the same, with their opinion thereupon, to the house. mr. benson, from the committee appointed, presented a bill for an apportionment of representatives among the several states, according to the first enumeration, and making provision for another enumeration, and apportionment of representatives thereon, to compose the house of representatives after the third day of march, ; which was received and read the first time. the speaker laid before the house a letter from the secretary of the treasury, accompanying his report stating the amount of the subscriptions to the loans proposed by the act making provision for the public debt, as well in the debts of the respective states as in the domestic debt of the united states, and of the parts which remain unsubscribed, together with such measures as are, in his opinion, expedient to be taken on the subject, pursuant to an order of this house of the st of november last; which were read, and ordered to be committed to a committee of the whole house on monday next. _the fishery bill_ the house again resolved itself into a committee of the whole house on the bill sent from the senate, entitled "an act for the encouragement of the bank and other cod fisheries, and for the regulation and government of the fishermen employed therein." mr. page said no man in this house was more heartily disposed to encourage the fisheries of the united states than he was; nor could any one more sincerely wish to encourage the bold, active, and enterprising adventurers in that branch of our commerce to persevere in it, than he did; being sensible of the importance of their traffic in peace, and of their defence of their country and annoyance of their enemies in war. but, sir, (said mr. p.,) i much doubt whether congress can give that encouragement to the fisheries to which they are entitled, and which policy would lead the general government to give, were it not restricted by the constitution. i consider, sir, the constitution as intended to remedy the defects of the confederation to a certain degree; so far only as would secure the independence and general welfare of the confederated states, without endangering the sovereignty and independence of the individual states. congress, therefore, was authorized to pay the debts of the union, and to regulate commerce, partly for that purpose, and partly to prevent improper and dangerous commercial combinations, jealousies, and altercations between the states. but congress was not intrusted with any regulation of exports which could admit of an interposition which might be dictated by partiality; nor was congress permitted to lay any tax which could by any possibility operate unequally on the states in general. it is said, indeed, that, if a drawback be not allowed on the salt used in salting fish, there will be, in fact, a duty on the exportation of the fish. but to this i think it may be replied, that the constitution guards the exports of each state against the possibility of a _partial_ restriction by congress, or even by the states themselves; that congress cannot lay a duty on the exportation of rice, indigo, tobacco, &c., or any other article exported from any state, because this might be done to the injury of the state where such duty would operate, and to the advantage and aggrandizement of some particular states, its competitors more favored by the general government, or possessing more influence in the debates of congress; and that the states are also individually restrained from laying such duties without the consent of congress, to prevent acts which might produce jealousies, commercial combinations, and, perhaps, at length, civil dissensions. that this restriction, if it be intended to prevent partiality, therefore, cannot extend to authorize drawbacks, which may be productive of partial preferences and their consequent jealousies; that if drawbacks be granted at all, they ought to be universally extended to every article which is or can be exported from any of the states, having in its composition a dutiable ingredient; that hence, ships and other vessels, &c., should have drawbacks on the sails, cordage, iron, &c.; but it may also be said that, as to the duty on salt, that is amply repaid to the merchant by the price annexed to his fish; the sums laid out in salt and fish together form a capital on which he takes care to have a sufficient profit. those merchants employed in this traffic, if allowed a drawback, would have a preference to other merchants, who import largely, pay heavy duties, and have no other advantage than the usual advance on their goods. the exporter of any article, with a drawback, must have an advantage over his fellow-citizens, who purchase through necessity many dutiable articles, and are obliged to consume them, without any other benefit than the use of them. i mention this because it has been said (by mr. ames) that, having made the men of marblehead pay for salt, they have a right to demand the money expended in that salt on the exportation of their fish; for it would be as reasonable for the man who had ate his fish on which his salt was expended, or who had used any other article for which he had paid a duty, to claim of congress a return of his money expended therein, as the exporter of fish. the only difference is, that, if both were paid the exact sum so expended by them, the exporter of fish would get twice paid. the purchaser or consumer of his fish would pay him for his salt therein, as if it were substantial fish, and the state for it as mere salt. here, then, is a field for partiality, discontent, and complaints, which the constitution wisely guards against. it cannot, therefore, be to any purpose to tell us that a bounty, or allowance, as it is now called, is preferable to a drawback, as there is not so great room for fraud in the one as in the other; nor can it be of importance to show that the fishermen have not the profits to which they are entitled. that their services in the last war deserve rewards, &c., their country shared with them the glory of their gallant behavior; but they alone received the rewards they aimed at. the twelve hundred ships they took were a compensation for services and a reward for those exploits. it is true, they annoyed the enemy; it is certain their prizes sometimes fed, armed, and clothed our armies; but it is not said that they did not receive payment for furnishing those things. but here we are asked, is it not of great consequence to the united states to employ those bold, skilful seamen in our service, that we may enjoy the commercial advantage they give us in peace, and their powerful assistance in war? to this i reply, that it ought first to be proved that congress has the power and authority to give them the encouragement demanded; and even if congress have that power, it ought to be shown that it can be extended to the benefit of the sailors of some of the states, and not to those of every state. it may be said that congress may with as much propriety give bounties to our hunters in the western country, to raise up a nursery of soldiers as a barrier against the indians, and to promote the fur trade, as to give drawbacks and bounties to the fishermen of the eastern states, with a view to encourage fisheries, and to raise a nursery of seamen for their defence against enemies who may invade our eastern frontiers. indeed, if defence be the object in view, we might as well give bounties to sturdy landsmen to be in readiness and constant training for war. indeed, sir, i confess i am not altogether convinced, that, if congress have this power, it ought to be thus exerted; because it is not clear to me that those fishermen would not be more profitable to the united states, if they were cultivating the lands which now lie waste, and raising families, which would be of ten times more value than their fisheries. a nursery of virtuous families, which will produce soldiers, sailors, husbandmen, and statesmen, must be preferable to a mere nursery of sailors, who generally live single, and often perish at sea. i always look upon the loss of a crew to an infant republic as the loss almost of a new state. i speak of this question, however, as a citizen of the united states, as a member of this house. were i to discuss it as a citizen of massachusetts, and in their legislature, i should say, as the state is nearly filled with inhabitants, and our fishermen increase our commerce in peace, protect us in war, and, indeed, even enrich us by their prizes, it is our interest to encourage them to the utmost, and to prevent their going into the service of other countries. i might, therefore, as a member of the legislature of that state, do all in my power to procure bounties for them, and indeed for all the sailors belonging to that state; but i should not think of applying to congress for their assistance; not only because i doubt their right to afford it, but because i should look upon it as in some degree derogatory to the sovereignty and independence of the state. i should look upon such an interference of congress as a step towards swallowing up the powers of the state governments, and as consolidating the different states into one government, which the wise and virtuous in every state always protested against as dangerous to their liberties; the fear of which consolidation prevented many good men from voting for the adoption of the new government. the framers of the constitution guarded so much against a possibility of such partial preferences as might be given, if congress had the right to grant them, that, even to encourage learning and useful arts, the granting of patents is the extent of their power. and surely nothing could be less dangerous to the sovereignty or interests of the individual states than the encouragement which might be given to ingenious inventors or promoters of valuable inventions in the arts and sciences. the encouragement which the general government might give to the fine arts, to commerce, to manufactures, and agriculture, might, if judiciously applied, redound to the honor of congress, and the splendor, magnificence, and real advantage of the united states; but the wise framers of our constitution saw that, if congress had the power of exerting what has been called a royal munificence for these purposes, congress might, like many royal benefactors, misplace their munificence; might elevate sycophants, and be inattentive to men unfriendly to the views of government; might reward the ingenuity of the citizens of one state, and neglect a much greater genius of another. a citizen of a powerful state, it might be said, was attended to, whilst that of one of less weight in the federal scale was totally neglected. it is not sufficient to remove these objections, to say, as some gentlemen have said, that congress is incapable of partiality or absurdities, and that they are as far from committing them as my colleagues or myself. i tell them the constitution was formed on a supposition of human frailty, and to restrain abuses of mistaken powers. the constitution has been said by some one to be, like answers of the oracles of old, capable of various and opposite constructions; that it has been ingeniously contrived, like some of them, to suit two events--a republican or a monarchical issue. i will not pretend to say that this is not, in some instances, too just an observation; nor will i undertake to deny that it was not the intention of some of the convention that such ambiguities might be in their constitution, to correspond with the critical and ambiguous state of the american mind respecting government; but i will boldly affirm, that, whatever the theories of that day might lead some to think respecting the application of monarchical principles to the government of the united states, no one can, at this day, pretend that they are applicable to their circumstances, their dispositions, or interests, or even are agreeable to the wishes of the people. even before the adoption of the constitution, when the rights of men had not been so thoroughly investigated as they since have been, it must be remembered that whole states, and large and respectable minorities in other states complained of and objected to the aristocratical and monarchical features of the new government. in vain did the friends of the new government--friends of order, of union, or of liberty--contend that the powers granted by the constitution which appeared so alarming were such as would never be exerted but when all good men would acknowledge the necessity of exercising them, and that, indeed, they would be explained or restrained by some future amendments. the sagacious and eloquent henry shook his head at such promises, sighed and submitted to the will of the majority--a small one indeed--but foretold, from his knowledge of the human heart, what would be done and said in justification of every measure which might extend the power of congress. is it politic and wise, then, mr. chairman, to exert the power contended for, even if it be authorized by the constitution? may not the interferences of congress in the business of regulating the trade of the eastern states, excite, if not envy on account of a supposed partiality, a jealousy lest congress undertake to intermeddle in the commercial regulations of other states? may not congress with equal propriety, undertake to regulate the tobacco, the rice, and indigo trade, as well as that of the fisheries? if they intermeddle in the business of sailors, why not in that of manufacturers and farmers? where, i may ask with my colleague, may they not go on in their zeal, and, i may add, in their laudable pursuit, of promoting the general welfare--and how totally may they be mistaken? if jealousy of rival states, instead of mutual satisfaction and pleasure--if distrust and suspicion of congress, instead of confidence in their measures, be the consequence--how will the union be promoted, or the general government secured? however virtuously disposed the present members may be, (and i am ready to applaud their honest intentions,) let them consider, sir, that they had better suppress their patriotic emotions, than give a pretext for their successors to abuse the powers which they now wish to exert for the public good. i know they will quote the opinion of as wise and virtuous a citizen as is in the united states. i know his patriotism, and know well his true republican principles; but, sir, with the freedom of a fellow-citizen, i take the liberty of saying, that his honest zeal, like that of the friends of the bill, has led him into a mistake.[ ] that able statesman and virtuous citizen, like the eloquent advocates of the bill, has considered the acts now quoted as a full sanction for the one before the committee. but i am of opinion, that those acts had better be repealed than give a sanction to the enacting of a law which goes to the establishing of bounties, or drawbacks, or by whatever other name they are called, which may be used to the partial encouragement of any branch of trade or employment whatsoever. i shall therefore vote against the bill before us, and, to get rid of it shall vote for striking out of it the first section, according to the motion now before the committee. as a member of this house, i shall think it my duty to protect the fisheries, and every other branch of our commerce, the fisherman as well as every other citizen, as far as may be within my ability; but i am not permitted, as a member of congress, i humbly conceive, to select the fisheries and fishermen as objects of more consequence than any other branches of trade, or persons employed in them, lest congress should not only show a mistaken attachment, or, even if judiciously placed, excite jealousies and discontents between the states, and distrust, destructive of their weight and influence. my constant wish has been to see congress confined to such acts as would form a more perfect union, promote the general welfare, ensure domestic tranquillity, and engage the confidence of our fellow-citizens. my wish is, that the members of congress would leave their respective states in the full enjoyment of every right and privilege they held before their adoption of the new constitution, which can be exercised without prejudice to the general government. let the legislatures of the different states encourage, as far as in their power, the commerce, agriculture, or manufactures of their respective states? and let congress, as far as can be consistent with the most steady impartiality, patronize their patriotic exertions, by wise regulations of their commerce with foreign nations, such as may open as full an intercourse with those nations as the states may desire. the emulation of the sister states in commerce, manufactures, or agriculture, would lead to the early establishment of that branch of either to which each state might be best adapted. this rivalship could produce no jealousy, no general national discontent in the states, no localities in congress. virginia would not attempt to rival massachusetts in her fisheries or carrying business, nor will south carolina and georgia rival the manufactories of new jersey and pennsylvania. each state may rejoice to see its sister states enjoying the advantages with which heaven has blessed them; and congress, if confined to subjects which admit not of local considerations, may debate with temper and decide with unbiased judgment. i confess i have wished that congress possessed the power that the friends of the bill tell us we do possess, and tell us we have exerted; but, on examining the constitution with a view to my wish, i found reason to think, not only that congress has not that power, but that it ought not to possess it, unless the constitution was intended to establish a consolidated government on the ruin of the state legislatures; but this, i conceive, cannot be the case, because the constitution guarantees to the states their respective republican governments. the general powers of congress, no doubt, ought to be (as they are) adequate to the purpose of forming a more _perfect union_ than subsisted under the confederation, to establish justice, &c.; but, as they are bound to guarantee to the states their respective republican forms of government, i cannot conceive how any of these powers can be employed, consistently with the ends for which they were given, in diminishing the power and sovereignty of the state legislatures. how congress can interfere in the regulations respecting the merchants and their sailors at marblehead with more propriety than with those at philadelphia, norfolk, or charleston, i cannot conceive; nor how this interference could take place without alarming those states, i know not. viewing the bill before us in this light, mr. chairman, i shall vote against it, and, as i said before, to get rid of it, shall vote to strike out the first section, according to the motion now before the committee. the question on striking out the first section was taken, and negatived-- to . wednesday, february . a message was received from the president of the united states, together with a statement of certain articles of expense, which have occurred in the department of foreign affairs, and for which no provision is made by law. [the expense alluded to was incurred for the relief of a number of american sailors, impressed in england to serve on board the british navy.] the message and accompanying papers were referred to a select committee, to examine and report. the speaker laid before the house a letter from the secretary of war, accompanying certain communications with the executive of virginia relative to the existing temporary defensive protection of the exposed frontiers of that state, pursuant to the orders of the president of the united states; which were read, and ordered to lie on the table. mr. white, from the committee appointed, presented a bill providing for the settlement of the claims of persons under particular circumstances barred by the limitations heretofore established; which was read twice and committed. mr. benson, from the committee to whom was referred the report of the secretary of the treasury on the petition of comfort sands, and others, made a report; which was read, and ordered to lie on the table. _the cod fisheries._ the house again resolved itself into a committee of the whole house, on the bill sent from the senate, entitled "an act for the encouragement of the bank and other cod fisheries, and for the regulation and government of the fishermen employed therein." on a motion to strike out the words "bounty now allowed," and insert _allowance now made_, &c.-- mr. giles observed, that he conceived the vote of yesterday against striking out the first section, was a decision in favor of the policy of granting governmental aid to the fisheries; the inquiry of to-day will be on what terms this aid shall be granted? he felt but little regret at the decision of yesterday, because he had himself previously contemplated some reasons, not unimportant, to justify that decision, and others had been suggested by several gentlemen in the course of the debate. the principles of this policy, he thought, however, might be combated by reasons of at least equal, and as far as he was able to judge, of paramount importance; but as he admitted considerable weight in the reasons on each side of the question, he was not particularly tenacious of the preference which his own opinion suggested. when he first mentioned his doubts respecting the principle of the bill, it was with diffidence, and those doubts in some measure arose from an idea that the bill contained a direct bounty upon occupation; upon a more minute examination, he thought the term bounty unnecessarily introduced into the bill, and that the object of it could be answered without the use of terms, which might hereafter be deemed to contain a decision upon the general principle of the constitutional right to grant bounties; it was to avoid any thing which might wear the appearance of such a decision, that induced him to make the present motion. he proceeded to remark, that as great a difference of opinion often existed respecting the precise meaning of the terms used, as the consequences which flow from them after attaining such precision of meaning; and it is of importance to the present discussion that an accurate definition of the terms used in the bill, and those proposed to be used, should be had. the avowed object of the bill is not to increase, but to transmute the sum, or a portion thereof, now allowed to the fisheries in lieu of the drawback upon salt, from the merchant who is now supposed to receive the sole benefit, to the fishermen really employed in the fishing vessels. this is a mere chimerical project, but if it be admitted that this is the object to be effected by the bill, the term bounty is improperly applied. a gentleman from massachusetts, (mr. ames,) who rests the defence of this bill almost solely upon this position, that those who receive the benefit intended by it, are of right entitled to such benefit in consideration of a previous advancement in value, and that this bill contains a mere permission to them to retain their own, has at the same time declared, that he thought the term bounty the most proper and technical, to convey this idea. in this, the gentleman appears to have deviated from his usual accuracy. a bounty is the granting a benefit without a correspondent return in value; a drawback is the retaking of something in consideration of a previous advancement; this is always founded upon a consideration previously received--that is a grant of favor _ex mero motu_. but the great characteristic distinction between bounties and drawbacks as they essentially relate to the administration of this government consists in the governmental objects to which they may severally be applied: drawbacks are necessarily confined to commercial regulations; bounties may be extended to every possible object of government, and may pervade the whole minutiæ of police. they may not only be extended to commerce, but to _learning_, _agriculture_, _manufactures_, and even the _sacredness_ of religion will be found too feeble to furnish complete protection from their influence. the people of the united states have always been scrupulously tenacious of a constitutional security for the most free and equal exercises of this right, but through the medium of bounties, even this right may be invaded, and the only security against such invasion must be _governmental discretion_. the same characteristic distinction will attend that _species_ of bounty which may incidentally result from commercial regulations; and direct bounties upon occupation founded upon the broad basis of discretionary right. the specification in the constitution of the right to regulate commerce, may possibly in some cases give rise to this indirect species of bounty, not from any right in the constitution to grant bounties, but as the necessary result from the specified right to make commercial regulations; and this specification can be the only foundation of justification to this indirect species of bounty; but there is no specification in the constitution of a right to regulate _learning_, or _agriculture_, _manufactures_, or _religion_, and so far as the sense of the constitution can be collected, it rather forbids than authorizes the exercise of that right. arguments used to deduce any given authority from the term _general welfare_, abstractedly from the specification of some particular authority, are dangerous in the extreme to rights constitutionally reserved, and ought ever to be viewed with great caution and suspicion. they serve directly to show that this government is not only consolidated in all its parts, but that it is a consolidated government of unlimited discretion; that it contains no constitutional limitation or restriction. if any given authority be inferred from the term _general welfare_ in the abstract, any other authority is equally deducible from it, because the term is applicable to every possible object of government, and differs only in degree, as to the several governmental objects. he could not see the force of the novel and curious distinction taken by a gentleman from connecticut (mr. hillhouse) between _general welfare_ and _particular welfare_; for every particular welfare, however minute, may be in a degree for the general welfare, and if the decision respecting the existence of this distinction, have no other limitation than congressional discretion, it is equally destructive of all constitutional restraint. gentlemen who have advocated this principle of construction, appear startled at some consequences suggested to result from it, and have denied that they have made the admission of such consequences. this is true, nor have those in reply so asserted, but they have taken up the principles of construction furnished by its advocates, and made the application of it to the consequences which they themselves infer; and if the principle be admitted, it is undeniable that the conclusions drawn from it will necessarily follow in their utmost latitude. a gentleman from south carolina (mr. barnwell) confidently spoke of the inherent rights of this government; this is a new source of authority, and totally inapplicable to this government. if there be inherent rights in governments at all, they must belong to governments growing out of a state of society, and not to a government deriving all its authorities by charter from previously existing governments, or the people of those governments. in such a government, the exercise of every authority not contained in the instrument, or deducible from it by a fair and candid construction, is an unjustifiable assumption and usurpation. he did not mean to analyze this subject further at this time, and had been led into these general remarks, because the impatience of the committee to have the question upon striking out the section had caused him to refrain from delivering these sentiments at that time. he would remark further, that bounties in all countries and at all times, have been the effect of favoritism; they have only served to divert the current of industry from its natural channel, into one less advantageous or productive; and in fact, they are nothing more than governmental _thefts_ committed upon the rights of one part of the community, and an _unmerited_ governmental _munificence_ to the other. in this country, and under this government, they present an aspect peculiarly _dreadful_ and _deformed_. to contemplate the subjects upon which bounties are to operate in the united states, the nature of the government to dispense them, the state preferences which now do and will for ever, more or less, continue to exist, the impossibility of an equal operation of bounties throughout the united states, upon any subject whatever, should be considered; and one of these two effects will necessarily follow the exercise of them; either the very existence of the government will be destroyed, or its administration must be radically changed, it must be converted into the most complex system of tyranny and favoritism. he observed, that it is not unfrequent at this time to hear of an eastern and southern interest, and he had for some time silently and indignantly seen, or thought he saw, attempts by this means to influence the deliberations of this house upon almost every important question. so far as he was the insulted object of these attempts, he felt that contempt for their authors, which appeared to him to be the correspondent tribute to the impurity of their designs; yet he thought that this had been the most formidable and effectual _ministerial machine_ which had been yet used in the administration of government. but one great mischief he apprehended from establishing the principle of the unrestrained right to grant bounties, will be, that it will make the difference of interest between eastern and southern, so far as they differ in their respective states of manufacture and agriculture, real, which is now only ideal. it will make that party real, which is now artificial. the jealousies and suspicions arising from _party_, will then have a substantial foundation, which now have no foundation in fact, but are ingeniously stimulated by a few, for the purpose of effecting particular objects; as long as the government shall be administered liberally and impartially, as long as the principle of reciprocal demand and supply between east and south shall remain inviolate, so long there can exist no essential distinct interest between them; but the instant bounties or governmental preferences are granted to occupation, that instant is created a separate and distinct interest, not wholly between east and south, but between the manufacturer and the cultivator of the soil. there will still exist a community of agricultural interests throughout the united states, and he hoped the time was not far distant, when a common sympathy will be felt by the whole of that class of the community. for these reasons, he hoped the motion would prevail. the bill having been gone through with, and amended, the committee rose and reported it with amendments which the house immediately took into consideration and adopted. the bill was then further amended and the house adjourned. thursday, february . _the cod fisheries._ the bill sent from the senate, entitled "an act for the encouragement of the bank and other cod fisheries, and for the regulation and government of the fishermen employed therein," together with the amendments thereto, was read the third time; and the question being put that the same do pass, it was resolved in the affirmative--yeas , nays , as follows: yeas.--messrs. fisher ames, robert barnwell, egbert benson, elias boudinot, shearjashub bourne, benjamin bourne, abraham clark, jonathan dayton, thomas fitzsimons, elbridge gerry, nicholas gilman, benjamin goodhue, james gordon, andrew gregg, samuel griffin, thomas hartley, james hillhouse, daniel huger, john w. kittera, john laurance, amasa learned, richard bland lee, samuel livermore, james madison, frederick augustus muhlenberg nathaniel niles, cornelius c. schoonmaker, jeremiah smith, israel smith, william smith, samuel sterrett, jonathan sturges, peter sylvester, george thatcher, thomas tredwell, john vining, jeremiah wadsworth, and artemas ward. nays.--messrs. john baptist ashe, abraham baldwin, john brown, william b. giles, william barry grove, daniel heister, philip key, nathaniel macon, john francis mercer, andrew moore, william vans murray, john page, josiah parker, joshua seney, john steele, thomas sumter, thomas tudor tucker, abraham venable, alexander white, hugh williamson, and francis willis. _resolved_, that the title of the said bill be, "an act concerning certain fisheries of the united states, and for the regulation and government of the fishermen employed therein." mr. laurance presented a petition from the tanners and curriers of the city of new york, praying relief from the hardships they labor under, in consequence of the exportation of tanners' bark. referred to a select committee. wednesday, february . _indemnity to gen. greene's estate._ on a motion made and seconded, that the house do come to the following resolution: "whereas the late major general nathaniel greene, on the eighth day of april, one thousand seven hundred and eighty-three, the more effectually to procure rations, and supplies for the southern army of the united states, became bound as surety for john banks & company to newcomen & collet, merchants in charleston, for the payment of eight thousand seven hundred and forty-three pounds fifteen shillings and sixpence, sterling money, being the condition of said bond: "and whereas, on the first day of may, one thousand seven hundred and eighty-six, the balance of principal and interest of said bond, being then eight thousand six hundred and eighty-eight pounds six shillings sterling, was paid by the said general greene: therefore, "_resolved_, that the united states shall indemnify the estate of the said general greene for the said sum last mentioned, and the interest thereof: _provided_, the executors of the said general greene shall account for a sum, being about two thousand pounds, be the same more or less, received of john ferrie, one of the partners of the said banks & company, to be in part of the indemnification aforesaid; and also shall make over, for the use of the united states, all mortgages, bonds, covenants, or other counter-securities whatsoever, now due, which were obtained by the said general greene in his lifetime, from the said banks & company on account of his being surety for them as aforesaid, to be sued for in the name of the said executors, for the use of the united states:" _ordered_, that the said resolution be committed to a committee of the whole house immediately. the house accordingly resolved itself into a committee of the whole house on the said resolution; and, after some time spent therein, the committee rose, reported progress, and obtained leave to sit again. saturday, march . _courtesies to france._ on a motion made and seconded, that the house do come to the following resolution: "_resolved_, that this house hath received, with sentiments of high satisfaction, the notification of the king of the french, of his acceptance of the constitution presented to him in the name of the nation; and that the president of the united states be requested, in his answer to the said notification, to express the sincere participation of the house in the interests of the french nation, on this great and important event; and their wish that the wisdom and magnanimity displayed in the formation and acceptance of the constitution, may be rewarded by the most perfect attainment of its object, the permanent happiness of so great a people." it was moved and seconded that the said motion be committed. and on the question for commitment, it passed in the negative--yeas , nays . and then debate arising on the said motion, a division thereof was called for. whereupon, the question being put, that the house do agree to the first part of the said motion, in the words following: "_resolved_, that this house has received, with sentiments of high satisfaction, the notification of the king of the french, of his acceptance of the constitution presented to him in the name of the nation: and that the president of the united states be requested, in his answer to the said notification, to express the sincere participation of the house in the interests of the french nation, on this great and important event:" it was resolved in the affirmative--yeas , nays , as follows: yeas.--fisher ames, john baptist ashe, abraham baldwin, benjamin bourne, abraham clark, william findlay, thomas fitzsimons, william b. giles, nicholas gilman, benjamin goodhue, james gordon, andrew gregg, thomas hartley, daniel heister, james hillhouse, israel jacobs, philip key, aaron kitchell, john w. kittera, john laurance, amasa learned, richard bland lee, samuel livermore, nathaniel macon, james madison, john francis mercer, william vans murray, nathaniel niles, john page, cornelius c. schoonmaker, theodore sedgwick, joshua seney, jeremiah smith, israel smith, william smith, john steele, samuel sterrett, jonathan sturges, thomas sumter, george thatcher, thomas tredwell, thomas tudor tucker, abraham venable, john vining, jeremiah wadsworth, artemas ward, anthony wayne, alexander white, hugh williamson, and francis willis. nays.--robert barnwell and egbert benson. on the question, that the house do agree to the second part of the said motion, in the words following: "and their wish that the wisdom and magnanimity displayed in the formation and acceptance of the constitution, may be rewarded by the most perfect attainment of its object, the permanent happiness of so great a people:" it was resolved in the affirmative--yeas , nays . _ordered_, that mr. tucker, mr. madison, mr. mercer, mr. vining, and mr. page, be appointed a committee to wait on the president of the united states, with the said resolution. saturday, march . _establishment of a mint._ the house resolved itself into a committee of the whole house on the bill sent from the senate, entitled, "an act establishing a mint, and regulating the coins of the united states." the following amendment being under consideration, viz: "in the tenth section, strike out the words, '_or representation of the head of the president of the united states for the time being, with an inscription, which shall express the initial or first letter of his christian or first name, and his surname at length, the succession of the presidency numerically_,' and, in lieu thereof, insert, 'emblematic of liberty,' with an inscription of the word liberty." mr. page, in support of this motion said, that it had been a practice in monarchies to exhibit the figures or heads of their kings upon their coins, either to hand down, in the ignorant ages in which this practice was introduced, a kind of chronological account of their kings, or to show to whom the coin belonged. we have all read, that the jews paid tribute to the romans, by means of a coin on which was the head of their cæsar. now as we have no occasion for this aid to history, nor any pretence to call the money of the united states the money of our presidents, there can be no sort of necessity for adopting the idea of the senate. i second the motion, therefore, for the amendment proposed; and the more readily because i am certain it will be more agreeable to the citizens of the united states, to see the head of liberty on their coin, than the heads of presidents. however well pleased they might be with the head of the great man now their president, they may have no great reason to be pleased with some of his successors; as to him, they have his busts, his pictures every where; historians are daily celebrating his fame, and congress have voted him a monument. a further compliment they need not pay him, especially when it may be said, that no republic has paid such a compliment to its chief magistrate; and when indeed it would be viewed by the world as a stamp of royalty on our coins: would wound the feelings of many friends, and gratify our enemies. mr. williamson seconded the motion also, and affirmed that the romans did not put the heads of their consuls on their money; that julius cæsar wished to have his on the roman coin, but only ventured to cause the figure of an elephant to be impressed thereon; that by a pun on the carthaginian name of that animal, which sounded like the name of cæsar, he might be said to be on the coin. he thought the amendment consistent with republican principles, and therefore approved of it. mr. livermore ridiculed, with an uncommon degree of humor, the idea that it could be of any consequence to the united states whether the head of liberty were on their coins or not; the president was a very good emblem of liberty; but what an emblematical figure might be, he could not tell. a ghost had been said to be in the shape of the sound of a drum, and so might liberty for aught he knew; but how the president's head being on our coins could affect the liberty of the people, was incomprehensible to him. he hoped, therefore, that the amendment would be rejected. mr. smith, of south carolina, agreed with mr. livermore in opinion; adding, that the president representing the people of the united states, might with great propriety represent them on their coins. he denied that republics did not place the images of their chief magistrates on their coins; and said, he was surprised that a member who so much admired the french and their new constitution, should be so averse to a practice they have established; the head of their king is by their constitution put upon their money. besides, it was strange that for a circumstance so trivial we should lose time in debating, and risk the loss of an important bill. the said amendment was again read, and a division of the question thereon called for: whereupon, the question being taken, that the house do agree to the first part of the said amendment, for striking out the words "or representation of the head of the president of the united states for the time being, with an inscription, which shall express the initial or first letter of his christian or first name, and his surname at length, the succession of the presidency numerically:"--it was resolved in the affirmative--yeas , nays . and then the question being taken that the house do agree to the second part of the said amendment, for inserting, in lieu of the words stricken out, the words, "emblematic of liberty, with an inscription of the word liberty:"--it was resolved in the affirmative--yeas , nays . monday, march . _establishment of a mint._ a message from the senate informed the house that the senate disagree to the amendment proposed by this house to the bill entitled "an act establishing a mint, and regulating the coins of the united states;" and agree to the amendment proposed by this house to the bill entitled "an act supplemental to the act for making further and more effectual provision for the protection of the frontiers of the united states." it was moved that the house should recede from their amendment to the bill entitled "an act establishing a mint, and regulating the coins of the united states." mr. livermore supported the motion. he said, he did not conceive it possible that and friend to the president of the united states, the chief magistrate, that great and good man, would have refused to pay every tribute of respect which was justly due to him. we have now a favorable opportunity of complimenting him, without any shadow of flattery, and without any expense. but, instead of this, what is proposed? an emblematical figure of liberty. but what is this liberty which some appear to be so fond of? he had no idea of such liberty as appears to possess the minds of some gentlemen. it is little better than the liberty of savages--a relinquishment of all law that contradicts or thwarts their passions or desires. his idea of liberty was that which arose from law and justice, which secured every man in his proper and social rights. some gentlemen may think a bear broke loose from his chain a fit emblem of liberty; others may devise a different emblem; but he could not conceive that any of them would be applicable to the situation of the united states, which justly boasted of being always free. if any idea of an emblem is necessary, he thought it might be applied to the head of the president of the united states. the present occasion affords the best opportunity of doing honor to the man we love; instead of which, we offer him an affront. he could not reconcile this conduct to propriety or consistency; for, while it is proposed to raise a monument to the memory of the president, which will cost fifty thousand guineas, a proposition to honor him in a more effectual manner, and in a way which will be satisfactory to the people, without any expense, and with perfect security to their liberties, is objected to. he hoped the house would recede. mr. mercer replied to mr. livermore with some degree of asperity. he observed that there was a rule in the british house of commons that the name of the king should never be mentioned in any debate. he thought some such rule might be introduced with advantage into this house. in the course of his remarks, to show that the circumstance of having the president's head stamped on the coin could not be justly considered as doing him an honor, he said, that persons of no better character than a nero, a caligula, or a heliogabalus, may enjoy it as well as a trajan, &c. mr. seney animadverted with severity on the remarks offered by mr. livermore, and on the conduct of the senate; particularly in returning the bill with a negative to the amendment of the house, within a period that left them no time to deliberate on the reasons which might have influenced the house. mr. giles opposed the motion for receding. he adverted to the ideas which are connected with the subject in european countries. the president's head will not designate the government. there is to be but one head; but does not our government consist of three parts? is there any other head proposed to be on the coin but the president's? he said this circumstance was of a piece with the first act of the senate. it had a near affinity to titles, that darling child of the senate, which has been put to nurse, with an intention that it shall be announced at some future period in due form. mr. benson said, he supposed he should be extremely disorderly were he to mention the motives which influenced the senate in their discussions. he knew not what they were, nor was it of importance that he should. he then observed, that plain pieces of metal will not answer for money; some impression is necessary to guard against counterfeits. the senate have determined what the device shall be; but the house, by their amendment, have left the matter entirely to the judgment of the artist, who may form such an emblem as suits his fancy. mr. b. ridiculed the idea of the people's being enslaved by their presidents, and much less by his image on their coin. mr. page replied that he was sorry to find that some gentlemen endeavored to ridicule republican cautions. he thought it both indelicate and inconsistent with their situations, as well as highly impolitic. he confessed that, as long as the people were sensible of the blessings of liberty, and had their eyes open to watch encroachments, they would not be enslaved; but if they should ever shut them, or become inattentive to their interests and the true principles of a free government, they, like other nations, might lose their liberties; that it was the duty of the members of that house to keep the eyes of their constituents open, and to watch over their liberties. it was therefore unbecoming a member to treat with levity and to ridicule any sentiment which had that tendency. for his part, he thought it the peculiar duty of the representative of a free people to put them upon their guard against any thing which could possibly endanger their liberties. that with this view he warned his constituents of the danger, not merely of imitating the flattery and almost idolatrous practice of monarchies with respect to the honor paid to their kings, by impressing their images and names on their coins, but he wished to add as few incentives as possible to competitors for the president's place. he warned his country against the cabals, the corruption, and animosities, which might be excited by the intrigues of ambitious men, animated with the hope of handing their names down to the latest ages on the medals of their country. but this indiscriminate honor is unworthy of the president's acceptance. a nero, a caligula, a heliogabalus, it has been observed, (by mr. mercer,) may enjoy it as well as a trajan. to apply it to the present chief magistrate, alone, would be less exceptionable. but this would be highly improper; for, if he should pass an act for this purpose, it might blast his reputation. i am of opinion that the senate knew his delicacy would not permit him to pass such a one. they have therefore extended the compliment to all his successors. we are under obligations to the great man now our president; but a lover of liberty and friend to the rights of man would be cautious how he showed his sense of that obligation. as a friend to the president, i am unwilling to offer him a compliment which, if accepted, might damn his reputation. were i in his place, i would cut off my hand rather than it should sign the act as it now stands. were i his greatest enemy, i should wish him to pass it as it was passed by the senate. sir, i am as much his friend as the member from new hampshire, and have shown, at proper times and places, that i was so. i am too sensible of the honor our president has acquired to suppose that an unbecoming compliment can in any degree contribute to its increase. i hope, therefore, the amendment which the house has made will not be receded from. the question being now put, that this house doth recede from the said amendment, it passed in the negative--yeas , nays , as follows: yeas.--fisher ames, robert barnwell, egbert benson, elias boudinot, shearjashub bourne, benjamin bourne, thomas fitzsimons, elbridge gerry, nicholas gilman, benjamin goodhue, thomas hartley, james hillhouse, daniel huger, israel jacobs, john w. kittera, amasa learned, samuel livermore, theodore sedgwick, william smith, jonathan sturges, peter sylvester, george thatcher, jeremiah wadsworth, and artemas ward. nays.--john baptist ashe, abraham baldwin, john brown, abraham clark, william b. giles, james gordon, andrew gregg, samuel griffin, william barry grove, daniel heister, philip key, aaron kitchell, richard bland lee, nathaniel macon, james madison, john francis mercer, andrew moore, william vans murray, nathaniel niles, john page, josiah parker, joshua seney, jeremiah smith, israel smith, john steele, thomas sumter, thomas tredwell, thomas tudor tucker, abraham venable, john vining, alexander white, and hugh williamson. _resolved_, that this house doth adhere to the said amendment. _ordered_, that the clerk of this house do acquaint the senate therewith. tuesday, march . a message from the senate informed the house that the senate recede from their disagreement to the amendment adhered to by this house to the bill entitled "an act establishing a mint, and regulating the coins of the united states." wednesday, april . _general nathaniel greene._ the house proceeded to consider the resolution reported from the committee of the whole house on the th of february last, to indemnify the estate of the late general nathaniel greene for a certain suretyship entered into by the said nathaniel greene, in his lifetime, on the public behalf. whereupon, the said resolution being read at the clerk's table, as follows: "whereas, the late major general nathaniel greene, on the th day of april, , the more effectually to procure _rations_ and supplies for the southern army of the united states, became bound as surety for john banks & co., to newcomen & collet, merchants in charleston, for the payment of £ , _s._ _d._, sterling money, being the condition of the said bond: "and whereas, on the st of may, , the balance of principal and interest of said bond, being then £ , _s._ sterling, was paid by the said general greene. therefore, "_resolved_, that the united states shall indemnify the estate of the said general greene for the said sum last mentioned, and the interest thereof, or for such sum as, upon due investigation by the officers of the treasury of the transactions between john banks & co., with messrs. newcomen & collet, in which general greene was security for said banks & co., it shall appear that neither general greene nor his executors shall have received any payment or compensation for: _provided_, the executors of the said general greene shall account for a sum being about £ , , be the same more or less, recovered by john ferrie, one of the partners of the said john banks & co., to be in part of the indemnification aforesaid; and also shall make over for the use of the united states, all mortgages, bonds, covenants, or other counter-securities whatsoever, now due, which were obtained by the said general greene, in his lifetime, from the said banks & co., on account of his being surety for them as aforesaid, to be sued for in the name of the said executors, for the use of the united states." the previous question thereon was called for by five members, to wit: "shall the main question, to agree to the said resolution, be now put?" and on the previous question, "shall the main question be now put?" it was resolved in the affirmative. and then the main question, "that the house do agree to the said resolution?" being put, it was resolved in the affirmative--yeas , nays , as follows: yeas.--fisher ames, abraham baldwin, robert barnwell, egbert benson, shearjashub bourne, benjamin bourne, william findlay, thomas fitzsimons, elbridge gerry, andrew gregg, thomas hartley, daniel heister, philip key, john w. kittera, john laurance, amasa learned, richard bland lee, samuel livermore, frederick augustus muhlenberg, william vans murray, john page, theodore sedgwick, upton sheridine, william smith, samuel sterrett, george thatcher, john vining, jeremiah wadsworth, and francis willis. nays.--john baptist ashe, elias boudinot, john brown, abraham clark, william b. giles, nicholas gilman, benjamin goodhue, james gordon, william barry grove, james hillhouse, israel jacobs, aaron kitchell, nathaniel macon, andrew moore, nathaniel niles, joshua seney, jeremiah smith, israel smith, john steele, jonathan sturges, thomas sumter, peter sylvester, thomas tredwell, artemas ward, alexander white, and hugh williamson. _ordered_, that a bill or bills be brought in pursuant to the said resolution, and that mr. livermore, mr. page, and mr. barnwell, do prepare and bring in the same. thursday, april . _apportionment bill._ a message was received from the president of the united states returning to the house the bill passed by the two houses entitled "an act for an apportionment of representatives among the several states according to the first enumeration," and presented to the president for his approbation on monday, the th of march; to which bill the president having made objections, the said objections were read, and ordered to be entered at large on the journal, as follows: "united states, _april , _." _gentlemen of the house of representatives:_ "i have maturely considered the act passed by the two houses entitled 'an act for an apportionment of representatives among the several states, according to the first enumeration;' and i return it to your house, wherein it originated, with the following objections: "first. the constitution has prescribed that representatives shall be apportioned among the several states according to their respective numbers; and there is no one proportion or divisor which, applied to the respective numbers of the states, will yield the number and allotment of representatives proposed by the bill. "second. the constitution has also provided that the number of representatives shall not exceed one for every thirty thousand; which restriction is, by the context, and by fair and obvious construction, to be applied to the separate and respective numbers of the states; and the bill has allotted to eight of the states more than one for every thirty thousand. "g. washington." _resolved_, that to-morrow be assigned for the reconsideration of the said bill, in the mode prescribed by the constitution of the united states. friday, april . _apportionment bill._ the house proceeded to reconsider the bill passed by the two houses entitled "an act for an apportionment of representatives among the several states, according to the first enumeration," which was presented for approbation on monday, the th of march, and returned by the president yesterday, with objections. the said bill was read, and is as follows: "an act for an appointment of representatives among the several states, according to the first enumeration. "_be it enacted by the senate and house of representatives of the united states of america in congress assembled_, that, from and after the d day of march, in the year one thousand seven hundred and ninety-three, the house of representatives shall be composed of one hundred and twenty members, elected within the several states, according to the following apportionment, that is to say: within the state of new hampshire, five; within the state of massachusetts, sixteen; within the state of vermont, three; within the state of rhode island, two; within the state of connecticut, eight; within the state of new york, eleven: within the state of new jersey, six; within the state of pennsylvania, fourteen; within the state of delaware, two; within the state of maryland, nine; within the state of virginia, twenty-one; within the state of kentucky, two; within the state of north carolina, twelve; within the state of south carolina, seven; and within the state of georgia, two. "jonathan trumbull, "_speaker of the house of representatives._ "john adams, "_vice president u. s. and president of senate._" the president's objections were also read; and, after debate on the subject-matter of the said bill, the question "that the house, on reconsideration, do agree to pass the bill," was determined in the mode prescribed by the constitution of the united states, and passed in the negative--yeas , nays , as follows: yeas.--fisher ames, egbert benson, shearjashub bourne, benjamin bourne, abraham clark, thomas fitzsimons, elbridge gerry, nicholas gilman, benjamin goodhue, james gordon, thomas hartley, israel jacobs, aaron kitchell, john w. kittera, john laurance, amasa learned, samuel livermore, nathaniel niles, cornelius c. schoonmaker, theodore sedgwick, jeremiah smith, israel smith, john steele, george thatcher, thomas tredwell, john vining, jeremiah wadsworth, and artemas ward. nays.--john baptist ashe, abraham baldwin, robert barnwell, john brown, william findlay, william b. giles, andrew gregg, samuel griffin, wm. barry grove, daniel heister, james hillhouse, daniel huger, philip key, richard bland lee, nathaniel macon, james madison, john francis mercer, andrew moore, frederick augustus muhlenberg, william vans murray, john page, josiah parker, joshua seney, upton sheridine, william smith, samuel sterrett, jonathan sturges, thomas sumter, thomas tudor tucker, abraham venable, alexander white, hugh williamson, and francis willis. and so the bill was rejected, two-thirds of the house not agreeing to pass the same. monday, april . _apportionment bill._ the house resolved itself into a committee of the whole house on the bill for an apportionment of representatives among the several states, according to the first enumeration; at the ratio of one for every ---- thousand persons, in the respective states. mr. giles observed, that, although this subject has been heretofore thoroughly discussed, and the minds of gentlemen probably fatigued with the discussion, yet he could not help trespassing upon the patience of the committee, by mentioning some of the principal reasons which would influence his vote against the motion, and in favor of that ratio which will afford the greatest number of representatives authorized by the constitution. he was induced to do this from an opinion that, in the usual course of things, arguments will have an effect upon the public mind in some measure proportioned to their own solidity, and the purity of the motives which actuate them. that the compound of these qualities form a common standard, by which all arguments would and ought to be measured by the great majority of the people; and he had no objections to submitting his reasons to the application of this common standard; he meant, however, to confine himself to general remarks, and not to fatigue the committee unnecessarily with minute exemplification of them. he proceeded by observing, that the expression in the constitution induced and justified the general expectation among the people of the united states, that one representative for every thirty thousand persons was secured to them by the constitution; that a definitive certainty in the number of representatives, as well as the manner of procuring them, is, in its nature, of constitutional and not of legislative provision, and affords a reason against varying the ratio mentioned in the constitution, although that ratio be expressed in terms of latitude; that congress had confirmed the general expectation in the public mind by the proposed amendments to the constitution, and had at least given a solemn opinion in favor of the ratio of one to thirty thousand, until the number of representatives should amount to one hundred, after acquiring which number by that rule only, a qualified discretion is admitted; that the opinions of the great bulk of the people of america were in favor of an increased representation, at least as far as the utmost limits prescribed by the constitution; that this circumstance was evidenced by the conventions which adopted the constitution; that it was further evidenced by the several legislatures which adopted the proposed amendments before alluded to; that it was still further evidenced by the number of representatives in the respective state legislatures; that this last circumstance is rendered peculiarly forcible by a comparative view of the objects of legislation chartered to the government of the united states, and those retained to the state governments. the objects of legislation chartered to the government of the united states, are wholly national and important; the objects of legislation retained to the state governments are comparatively local and subaltern: those peculiarly prompt temptation and invite corruption--these offer no inducements to either. in the government of the united states, the constituents of the representative body are complex and diversified; in the state governments they are comparatively simple and assimilated. that a sympathy with the feelings of the people should characterize this branch of the government; wisdom is the expected characteristic of the senate; and despatch of the executive. to the inequality of representation relatively to states suggested to result from the application of this rule, mr. g. replied that the inequality complained of is rather ideal than real; that to determine how far this consideration really ought to exist among states, it is right and proper to ascertain the whole comparative government: and the issue of this inquiry will be, that those states in whose favor the rule is said to operate, possess the least governmental influence in the senate, proportioned to numbers; and that the casual gain here is no equivalent for the certain loss there. as far, therefore, as the governmental influence of states in relation to numbers is to operate, it will furnish a motive of preferment for the rule he contended for. it has been said (continued mr. g.) that the representation of the states in the senate is strictly defined by the constitution, and that therefore the consideration of the relative influence of the states, then, should not be resorted to as an argument in the apportionment of representatives to this house. but, it should be observed, that the rule contended for, though not so strictly defined, is equally within the pale of the constitution; and the most extended use to be made of this consideration is, to manifest the impropriety of resorting to the pretended inequality among states, as a conclusive argument to vary that ratio of representation for this house which is admitted to be the most proper, upon its intrinsic merits, and when viewed without a reference to that consideration. this particular subject suggests a peculiar equity and propriety, in taking into consideration the comparative governmental influence of the states in the senate, proportioned to numbers; because, it is in consequence of a representation by states, there, that they gain this unequal influence: and nothing more is contended for by this rule than a representation of the people through the medium of the several states, here. the rule of representation is not the cause of the present inequality, as far as it may appear to exist; it is a mere contingent circumstance, depending upon arbitrary facts and numbers, which cannot be rendered subservient to any general rule. it should also be remarked, that most of the states supposed to be favored by the operation of this rule, have, heretofore, been unequally represented in the extreme; and from the extent and rapid population of these states, it may be concluded, with certainty, that previously to the expiration of the present apportionment, the real inequality of representation in this house, as well as in the senate, will continue to bear particularly hard upon them. perfect equality is unattainable; and the proposed ratio is, in the principle, equally subject with any other to all the inconveniences which it is intended to remedy. the inconveniences of the rule he contended for, in their utmost extent, can never be very great, because the same rule is applied in the same manner to the respective states; and the most extended scope for its unequal operation must be confined to the casual result of the fractional numbers within the several states. in reflecting upon this argument of inequality of representation in relation to states, an idea had presented itself to his mind which seemed to him both novel and important; and that is, that a quality exists in the government, from its peculiar organization which enables a minority of constituents, through the medium of a majority of representatives, to give law to a majority of constituents, absolutely against the will of their minority of representatives. this quality of the government arises from the state representations in the senate; and it exists not merely in speculation or idea--it has been sensibly felt in practice, and there is a real tendency in the government to make it still more so. the very bill now under consideration will probably furnish one strong evidence of its efficacy in practice; it would have passed very differently from the present proposition, if it had not met with this unnatural check; and i am concerned, said he, to remark, that almost in every important measure of the government, the minority of the people of the union had given law to the majority of the people, against their consent, as far as this can be evidenced through the medium of their representatives. this, it is to be feared, is a radical evil in the government, and its magnitude would be in a great measure proportioned to the extension of the objects of legislation by this government. if the people be the only legal source of governmental authority, and this right of individuals be equal, this is certainly a heterodox principle in the government. he would not pretend to say, however, that this was a cancer upon the body politic too inveterate and vital to admit of a cure; but he conceived it to be a sore of that sort which it would be unwise to irritate or tamper with: and he conceived, also, the present proposition not to be without its irritating qualities. mr. g. then proceeded to consider, upon general principles, of increasing the representation in this house to the full extent authorized by the constitution, and particularly with a view to the necessity of establishing, in this branch of the government, a permanent sympathy with the landed interest. he observed, that all representative governments appeared to possess a natural tendency from republicanism to monarchy; that, great inequalities in the distribution of wealth among individuals, consequent upon the progress of all governments, appeared to be the cause of their political evolutions; that no competent remedy against this evil had been heretofore discovered, or at least practically applied by any government; that perhaps this great political light may first shine forth through the medium of the american constitutions, and serve, as some others have previously done, to illumine not only the american, but the european world. the peculiar circumstances of the united states, however, since the late revolution, and in the infancy of the american governments, favored extremely this natural principle of the growing inequality in the distribution of wealth amongst individuals. an extensive, unexhausted, fertile country furnished full scope for agriculture, the plenty and cheapness of provisions and rude materials for manufactures, and an unshackled commerce for the merchant; and to these were added the blessings of peace, and laws securing to the individual the exclusive possession of the fruits of his own industry, however abundant. there were intrinsic circumstances; there was a contingent one. a public debt--the price of the revolution itself and its consequent blessings--had been incurred, and, from the imbecility of the then existing confederacy, and other causes, was depreciated considerably below its nominal value; but it was then in small masses, and not very unequally spread amongst the individuals throughout the whole united states. the government of the united states, instead of managing this contingent circumstance with caution, and declaring so in its ministration, seized upon it with its fiscal arrangement, and applied it as the most powerful machine to stimulate this growing inequality in the distribution of wealth--a principle perhaps too much favored by other existing causes. the government, not satisfied with the debts contracted by the former confederacy, assumed the payment of a great proportion of the debts contracted by the respective state governments, and established funds for paying the interest of the whole. this measure produced two effects, not very desirable amongst individuals. it gathered these scattered debts, at a very inferior price, from the hands of the many, and placed them in the hands of the few; and it stimulates the value of them. thus collected into greater masses, beyond all calculation, by the artificial application of fiscal mechanism, it produced a variety of serious effects with respect to the government. in opposition to the agricultural or republican, it enlisted a great moneyed interest in the united states, who, having embarked their fortunes with the government, would go all lengths with its administration, whether right or wrong, virtuous or vicious, by rendering the debt but partially redeemable, passing perpetual tax laws, and mortgaging their products to the payment of the interest of this perpetually-existing debt. it gave the executive a qualified control over the best moneyed resources of the united states, not contemplated by the constitution, nor founded in wisdom. it gave rise to an unauthorized incorporation of the moneyed interest, and placed it as far as possible from the reach of future legislative influence. it established the doctrine that one systematic financier was better able to originate money bills and tax the people of the united states, than the whole collected wisdom of their representatives, with the aid of a reciprocity of feeling. it gave rise to the idea of a sinking fund, without limitation as to amount, to be placed in the hands of a few trustees, and there to be protected from legislative control by all the sanctions and securities annexed to private property. in short, it established the doctrine that all authority could be more safely intrusted to, and better executed by a few, than by many; and, in pursuance of this idea, made more continual drafts of authority from the representative branch of the government, and placed it in the hands of the executive; lessening, by this mechanism of administration, the constitutional influence of the people in the government, and fundamentally changing its native genius and original principle. he (mr. g.) knew of no competent remedy against the abominable evils to be apprehended from the future operation of these unhallowed principles, but a permanent establishment of the candid or republican interest in this house; and the best chance of effecting this great object he conceived to be a full representation of the people. his alarms respecting these fashionable, energetic principles were greatly increased by a perspective view of some of the proposed measures of government. he saw systems introduced to carve out of the common rights of one part of the community privileges, monopolies, exclusive rights, &c., for the benefit of another, with no other view, in his opinion, but to create nurseries of immediate dependants upon the government, whose interest will always stimulate them to support its measures, however iniquitous and tyrannical, and, indeed, the very emoluments which will compose the price of their attachment to the government will grow out of a tyrannical violation of the rights of others. he would forbear to mention a variety of other circumstances, to prove that principles having a tendency to change the very nature of the government, have pervaded even the minutest ramifications of its fiscal arrangements, nor would he dwell upon the undue influence to be apprehended from moneyed foreigners, who had become adventurers in the funds, nor the various avenues opened to facilitate the operation of corruption. he would merely remark, that, acting under impressions produced by these considerations, and strengthened by others not less pertinent and important, suggested by a number of gentlemen, in the course of the discussion of this subject, and believing that a full representation of the people will furnish the only chance of remedy for the existing, and a competent protection against future evils, he should feel himself criminal if by his vote he should give up a single representative authorized by the constitution. the same impressions would have induced him to have voted for the proposition which gave one hundred and twenty members, had it not been for a conscientious and paramount regard for the preservation of the constitution. the difference of the position of the members throughout the united states, which would have been assumed by the difference in the manner of making the apportionment, never amounted to the minimum of a consideration with him against the proposition; for he felt a conviction that the agricultural or equalizing interest was nearly the same throughout all parts of the united states; and he hoped that the increased representation would furnish strong testimonies of the truth of the position. he would remark, generally, the government of america was now in a state of puberty, that is, at this time. she is to assume a fixed character, and he thought it in some degree rested upon the vote now to be given, whether she would preserve the simplicity, chastity, and purity of her native representation and republicanism, in which alone the true dignity and greatness of her character must consist; or whether she will, so early in youth, prostitute herself to the venal and borrowed artifices and corruptions of a stale and pampered monarchy? whatever his own opinions or suspicions may be respecting the tendency of the present administration, and whatever may be the discussion of to-day, he should still preserve a hope that the increased representation, supported by the enlightened spirit of the people at large, will form an effectual resistance to the pressure of the whole vices of the administration, and may yet establish the government upon a broad, permanent, and republican basis. when mr. giles had concluded, the committee rose, and reported an amendment, viz: to fill up the blank with the word "thirty-three;" which was carried in the affirmative--yeas , nays , as follows: yeas.--fisher ames, robert barnwell, egbert benson, elias boudinot, shearjashub bourne, benjamin bourne, abraham clark, jonathan dayton, thomas fitzsimons, elbridge gerry, nicholas gilman, benjamin goodhue, james gordon, andrew gregg, thomas hartley, daniel heister, james hillhouse, daniel huger, israel jacobs, aaron kitchell, john w. kittera, amasa learned, samuel livermore, nathaniel niles, theodore sedgwick, jeremiah smith, israel smith, william smith, jonathan sturges, peter sylvester, george thatcher, john vining, jeremiah wadsworth, and artemas ward. nays.--john baptist ashe, abraham baldwin, john brown, william findlay, william b. giles, samuel griffin, william barry grove, philip key, john laurance, richard bland lee, nathaniel macon, james madison, john francis mercer, andrew moore, frederick augustus muhlenberg, william vans murray, john page, josiah parker, cornelius c. schoonmaker, joshua seney, upton sheridine, john steele, samuel sterrett, thomas sumter, thomas tredwell, thomas tudor tucker, abraham venable, alexander white, hugh williamson, and francis willis. _ordered_, that the said bill, together with the amendments, be engrossed and read the third time to-morrow. friday, april . _publication of the debates._ before the house proceeded to the order of the day-- mr. gerry said, that the circumstance of a publication which had made its appearance that morning induced him to rise for the purpose of bringing forward a proposition respecting a full and impartial publication of the debates of that house. every gentleman, he believed, would agree with him that, from a publication of this kind, the citizens of the united states would derive such information respecting the proceedings of the legislature, and the principles on which the laws are grounded, as must be productive of the most salutary effects, and attach the people more strongly to the general government; but the _ex parte_ publications can have no other tendency than to misrepresent their proceedings, and alienate the affections of the citizens. he therefore moved the following resolution: "whereas an impartial publication of the debates of congress stating accurately their legislative measures, and the reasons urged for and against them, is a desirable object, inasmuch as it may aid the executive in administering the government, the judiciary in expounding the laws, the governments and citizens of the several states in forming a judgment of the conduct of their respective representatives, and congress themselves in revising and amending their legislative proceedings: and whereas, from the want of proper arrangements, such publication has not been accomplished-- "_resolved_, that ---- persons, of good reputation, and skilled in the art of stenography, be, at the next session, appointed by ballot, to take and publish, impartially and accurately, the legislative subjects which may be submitted to the consideration of the house, and the debates thereon of the members respectively; that the persons so to be appointed be considered as officers of the house, and provided for accordingly; that they be severally qualified by oath to a faithful discharge of the trust; and that such regulations shall be prescribed, as may be necessary to protect them in attaining the salutary objects of their appointment." this, mr. g. said, was a subject which ought no longer to be overlooked. whilst congress sat at new york, great uneasiness had been occasioned in the house by the mode in which the debates were published. sometimes members were introduced as uttering arguments directly the reverse of what they had advanced. at other times, the substance of the arguments, as published, wore an aspect widely different from what they had when offered in debate. in some instances, their arguments were so garbled that they themselves were unable to recognize them in print; in others, they were disfigured with grammatical errors, and rendered totally unintelligible; and on many occasions, the arguments on one side of the question only were published. such were the effects produced by this mode of publication that a gentleman from south carolina (mr. burke) brought forward a motion for correcting those evils, which was debated for some time. after the subject had been two or three times under discussion, the house was informed that there was a probability of care being taken in future to correct the errors; and thus the matter was passed over. mr. g. then mentioned a circumstance which he had learned from a gentleman who had declared he could prove it on oath before the house, if called upon, viz: that, having asked one of those persons who at that time published the debates, "how he could think of publishing them so inaccurately?" the answer was, "that he was under a necessity of obliging his employers." hence, he concluded that there must have been a corrupt faction who influenced that short-hand writer. when congress first came to this city, the debates were published pretty accurately; and so they were this session, in some of the papers, but, in others, the case was otherwise; and he himself, as well as other gentlemen, had been under a necessity of publicly contradicting them in print. in some of the debates, the answer to an argument was published before the argument itself made its appearance; on other occasions, they were published very fully on one side of the question, whilst nothing appeared on the other. every gentleman, he believed, would admit that this was a true state of the business; and it was well known that, on many important occasions, no debates had been published at all. the want of regularity in the publication was, he supposed, owing, in some measure, to the want of proper encouragement, as the printers of newspapers would not probably find their account in allowing a sufficient compensation to induce short-hand writers to devote their whole time to the business. mr. g. then read from the american daily advertiser (of friday last) the following passage: "a warm debate hereupon took place, during the course of which one gentleman, who strenuously supported the motion, was several times interrupted. apprehensions were expressed of dangerous consequences, in case his speech should appear in print; and an honorable member, who opposed the motion, (mr. gerry,) declared that the manner in which the debates of congress had been published, and the business conducted, during the present session, had a direct tendency to bring about a dissolution of the union. "as the honorable gentleman did not further explain himself, we are at a loss to determine whether he meant to tax the publishers of the debates with inaccuracy in stating them wrong,----or imprudence, in stating them right, and freely publishing whatever sentiments any member of that house may think proper to express, in the constitutional exercise of the freedom of debate. but, certain we are, that he could not mean to stigmatize them as actuated by partiality, undue influence, or sinister motives of any kind." here, said mr. g., an idea was held up that the gentleman who had spoken first (mr. mercer) was interrupted. but it is not said that i was interrupted too. i was interrupted as often as he. the house can determine whether i have ever taken any measure to prevent a free and candid publication of the debates. on the contrary, i have always endeavored to obtain it; and i will still proceed to accomplish it as far as possible. i think neither this house nor any of its members ought to be subject to publications of this kind. if they are, they will be obliged either to enter into paper wars with printers, or to relinquish the public good. it is incumbent on the house to take measures to prevent misrepresentation. i therefore submit to the house the resolution which i have read; and i hope that, if the proposition itself appears worthy of their attention, they will take it into consideration; or, if it wants any amendment, they will refer it to a committee; for i think the subject ought not to be any longer neglected. mr. mercer.--i second the motion; and i think the publication which the honorable gentleman has read to the house contains but a fair statement of facts. the gentleman, in the course of the former debate, made some very strange allusions to what was said by me, which were wholly unauthorized. i consider it as a primary object in this government that we should on this floor be at all times free to express our sentiments of the government, without involving the government itself. i consider such a measure as is now contemplated to be well worthy the serious attention of the house. we are at a distance from our constituents; and it is a misfortune that we are withdrawn from their inspection, by being placed in a part of the union where it is not easy to compare our circumstances and conduct in private life with the motives which may be supposed to influence our political conduct. our constituents ought to be acquainted with our proceedings here; and it is only from a full and accurate publication of the debates of this house that they can obtain any satisfactory information on this subject. mr. gerry said, that the paragraph he had read did not contain a full statement of facts, as the apprehensions he had expressed were only in case the arguments should go "_unanswered_." mr. giles made, and mr. w. smith seconded, a motion for referring the resolution to a select committee, to report such regulation as they may think necessary for the publication of the debates. an additional reason for the reference was, that some alteration in the wording appeared necessary, to (mr. smith,) so far as respects the judiciary, &c. mr. boudinot objected to the commitment, as he thought it a subject of considerable consequence, and there would not be time to take it up during the present session, the house having already outsat the time which the other branch of the legislature had proposed for the adjournment. this was his only objection; otherwise, he was far from being opposed to the measure. mr. giles thought the consequence of letting the matter lie over till next session would be, that it would die away, and nothing would be done. unless some steps be taken during the present session, no persons would come forward as candidates at the commencement of the next. but if a committee report on the subject, the house may determine what steps are to be taken, and the people will be prepared accordingly. the question being taken on the commitment, it passed in the affirmative--yeas , nays, . _ordered_, that the said motion be committed to mr. gerry, mr. mercer, mr. lee, mr. smith, (of south carolina,) and mr. kittera. tuesday, may . a message was received from the senate, notifying the house that the senate, having completed the legislative business before them, are now about to adjourn. whereupon, _ordered_, that a message be sent to the senate to inform them that this house, having completed the business before them, are now about to adjourn until the first monday in november next, and that the clerk of this house do go with the said message. the clerk accordingly went with the said message; and, being returned, the speaker adjourned the house, to meet on the first monday in november next. second congress.--second session. begun at the city of philadelphia, november , . proceedings of the senate. monday, november , . this being the day fixed by law for the annual meeting of the second session of the second congress, the following senators appeared, and took their seats: john langdon and paine wingate, from new hampshire. caleb strong and george cabot, from massachusetts. theodore foster, from rhode island. oliver ellsworth and roger sherman, from connecticut. stephen r. bradley and moses robinson, from vermont. rufus king, from new york. philemon dickinson and john rutherford, from new jersey. george read, from delaware. james monroe, from virginia. john brown and john edwards, from kentucky. benjamin hawkins, from north carolina. pierce butler and ralph izard, from south carolina; and william few, from georgia. in the absence of the vice president, and also of richard henry lee, elected president _pro tempore_ at a former session, the senate proceeded to the choice of a president _pro tempore_, as the constitution provides, and john langdon was duly elected. john brown and john edwards, from the state of kentucky, respectively, produced their credentials; and the oath required by law was, by the president _pro tempore_, administered to them. _ordered_, that the secretary acquaint the house of representatives that a quorum of the senate is assembled and ready to proceed on business. a message from the house of representatives informed the senate that a quorum of the house of representatives is assembled, and ready to proceed to business. a second message informed the senate that the house of representatives have resolved that a committee be appointed, jointly with such committee as the senate shall appoint, to wait on the president of the united states, and notify him that a quorum of the two houses is assembled, and ready to receive any communications he may please to make to them; in which resolution they desire the concurrence of the senate. _resolved_, that the senate concur in the appointment of a joint committee to wait on the president of the united states, agreeably to the resolution of the house of representatives, and that messrs. izard and strong be the committee on the part of the senate. a message from the house of representatives informed the senate that the house of representatives have resolved that two chaplains, of different denominations, be appointed to congress, for the present session, one by each house, who shall interchange weekly; in which they desire the concurrence of the senate. the senate proceeded to consider the said resolution; and _resolved_, that they do concur therein, and that the right rev. bishop white be the chaplain on the part of the senate. a message from the house of representatives informed the senate that the house of representatives have proceeded to the election of a chaplain to congress for the present session, and have appointed the rev. doctor green on their part. mr. izard, from the joint committee appointed to wait on the president of the united states, agreeably to the resolution of the two houses of this day, reported, that they had executed the business, and that the president of the united states proposed to meet the two houses of congress in the senate chamber to-morrow at o'clock. tuesday, november . robert morris, from the state of pennsylvania, attended, and took his seat. _ordered_, that the secretary acquaint the house of representatives that the senate are ready to meet them in the senate chamber, to receive any communications the president of the united states may be pleased to make to the two houses of congress, and that the usual seats will be assigned to them. the house of representatives having accordingly taken their seats, the president of the united states came into the senate chamber, and addressed both houses of congress, as follows: _fellow-citizens of the senate, and of the house of representatives:_ it is some abatement of the satisfaction with which i meet you on the present occasion, that, in felicitating you on a continuance of the national prosperity, generally, i am not able to add to it information that the indian hostilities, which have, for some time past, distressed our north-western frontier, have terminated. you will, i am persuaded, learn with no less concern than i communicate it, that reiterated endeavors, towards effecting a pacification, have hitherto issued only in new and outrageous proofs of persevering hostility on the part of the tribes with whom we are in contest. an earnest desire to procure tranquillity to the frontier; to stop the further effusion of blood; to arrest the progress of expense; to forward the prevalent wish of the nation for peace, has led to strenuous efforts, through various channels, to accomplish these desirable purposes; in making which efforts, i consulted less my own anticipations of the event, or the scruples which some considerations were calculated to inspire, than the wish to find the object attainable; or, if not attainable, to ascertain unequivocally that such is the case. a detail of the measures which have been pursued, and of their consequences, which will be laid before you, while it will confirm to you the want of success, thus far, will, i trust, evince that means as proper and as efficacious as could have been devised have been employed. the issue of some of them, indeed, is still depending; but a favorable one, though not to be despaired of, is not promised by any thing that has yet happened. in the course of the attempts which have been made, some valuable citizens have fallen victims to their zeal for the public service. a sanction commonly respected even among savages has been found, in this instance, insufficient to protect from massacre the emissaries of peace: it will, i presume, be duly considered whether the occasion does not call for an exercise of liberality towards the families of the deceased. it must add to your concern to be informed, that, besides the continuation of hostile appearances among the tribes north of the ohio, some threatening symptoms have of late been revived among some of those south of it. a part of the cherokees, known by the name of chickamagas, inhabiting five villages on the tennessee river, have long been in the practice of committing depredations on the neighboring settlements. it was hoped that the treaty of holston, made with the cherokee nation in july, , would have prevented a repetition of such depredations. but the event has not answered this hope. the chickamagas, aided by some banditti of another tribe, in their vicinity, have recently perpetrated wanton and unprovoked hostilities upon the citizens of the united states in that quarter. the information which has been received on this subject will be laid before you. hitherto, defensive precautions only have been strictly enjoined and observed. it is not understood that any breach of treaty, or aggression whatsoever, on the part of the united states, or their citizens, is even alleged as a pretext for the spirit of hostility in this quarter. i have reason to believe that every practicable exertion has been made (pursuant to the provision by law for that purpose) to be prepared for the alternative of a prosecution of the war, in the event of a failure of pacific overtures. a large proportion of the troops authorized to be raised have been recruited, though the number is still incomplete. and pains have been taken to discipline and put them in condition for the particular kind of service to be performed. a delay of operations (besides being dictated by the measures which were pursuing towards a pacific termination of the war) has been in itself deemed preferable to immature efforts. a statement, from the proper department, with regard to the number of troops raised, and some other points which have been suggested, will afford more precise information, as a guide to the legislative consultations; and among other things, will enable congress to judge whether some additional stimulus to the recruiting service may not be advisable. in looking forward to the future expense of the operations which may be found inevitable, i derive consolation from the information i receive, that the product of the revenues for the present year is likely to supersede the necessity of additional burdens on the community for the service of the ensuing year. this, however, will be better ascertained in the course of the session; and it is proper to add, that the information alluded to proceeds upon the supposition of no material extension of the spirit of hostility. i cannot dismiss the subject of indian affairs without again recommending to your consideration the expediency of more adequate provision for giving energy to the laws throughout our interior frontier, and for restraining the commission of outrages upon the indians; without which all pacific plans must prove nugatory. to enable, by competent rewards, the employment of qualified and trusty persons to reside among them as agents, would also contribute to the preservation of peace and good neighborhood. if, in addition to these expedients, an eligible plan could be devised for promoting civilization among the friendly tribes, and for carrying on trade with them, upon a scale equal to their wants, and under regulations calculated to protect them from imposition and extortion, its influence in cementing their interest with ours, could not but be considerable. the prosperous state of our revenue has been intimated. this would be still more the case were it not for the impediments which, in some places, continue to embarrass the collection of the duties on spirits distilled within the united states. these impediments have lessened, and are lessening, in local extent; and, as applied to the community at large, the contentment with the law appears to be progressive. but symptoms of increased opposition having lately manifested themselves in certain quarters, i judged a special interposition on my part proper and advisable; and, under this impression, have issued a proclamation, warning against all unlawful combinations and proceedings, having for their object or tending to obstruct the law in question, and announcing that all lawful ways and means would be strictly put in execution for bringing to justice the infractors thereof, and securing obedience thereto. measures have also been taken for the prosecution of offenders; and congress may be assured that nothing within constitutional and legal limits, which may depend upon me, shall be wanting to assert and maintain the just authority of the laws. in fulfilling this trust, i shall count entirely upon the full co-operation of the other departments of the government, and upon the zealous support of all good citizens. i cannot forbear to bring again into the view of the legislature the subject of a revision of the judiciary system. a representation from the judges of the supreme court, which will be laid before you, points out some of the inconveniences that are experienced. in the course of the execution of the laws, considerations arise out of the structure of that system, which, in some cases, tend to relax their efficacy. as connected with this subject, provisions to facilitate the taking of bail upon processes out of the courts of the united states, and a supplementary definition of offences against the constitution and laws of the union, and of the punishment for such offences, will, it is presumed, be found worthy of particular attention. observations on the value of peace with other nations are unnecessary. it would be wise, however, by timely provisions to guard against those acts of our own citizens, which might tend to disturb it, and to put ourselves in a condition to give that satisfaction to foreign nations which we may sometimes have occasion to require from them. i particularly recommend to your consideration the means of preventing those aggressions by our citizens on the territory of other nations, and other infractions of the law of nations which, furnishing just subject of complaint, might endanger our peace with them, and, in general, the maintenance of a friendly intercourse with foreign powers, will be presented to your attention by the expiration of the law for that purpose, which takes place, if not renewed, at the close of the present session. in execution of the authority given by the legislature, measures have been taken for engaging some artists from abroad to aid in the establishment of our mint: others have been employed at home. provision has been made for the requisite buildings, and these are now putting into proper condition for the purposes of the establishment. there has also been a small beginning in the coinage of half-dimes; the want of small coins in circulation calling the first attention to them. the regulation of foreign coins, in correspondency with the principles of our national coinage, as being essential to their due operation, and in order to our money concerns, will, i doubt not, be resumed and completed. it is represented that some provisions in the law which establishes the post office, operate, in experiment, against the transmission of newspapers to distant parts of the country. should this, upon due inquiry, be found to be the fact, a full conviction of the importance of facilitating the circulation of political intelligence and information will, i doubt not, lead to the application of a remedy. the adoption of a constitution for the state of kentucky has been notified to me. the legislature will share with me in the satisfaction which arises from an event interesting to the happiness of the part of the nation to which it relates, and conducive to the general order. it is proper likewise to inform you, that, since my last communication on the subject, and in further execution of the acts severally making provision for the public debt, and for the reduction thereof, three new loans have been effected, each for three millions of florins; one at antwerp, at the annual interest of four and one-half per cent., with an allowance of four per cent., in lieu of all charges; and the other two at amsterdam, at the annual interest of four per cent., with an allowance of five and one-half per cent. in one case, and of five per cent. in the other, in lieu of all charges. the rates of these loans, and the circumstances under which they have been made, are confirmations of the high state of our credit abroad. among the objects to which these funds have been directed to be applied, the payment of the debts due to certain foreign officers, according to the provision made during the last session, has been embraced. _gentlemen of the house of representatives:_ i entertain a strong hope that the state of our national finances is now sufficiently matured to enable you to enter upon a systematic and effectual arrangement for the regular redemption and discharge of the public debt, according to the right which has been reserved to the government; no measure can be more desirable, whether viewed with an eye to its intrinsic importance, or to the general sentiment and wish of the nation. provision is likewise requisite for the reimbursement of the loan which has been made of the bank of the united states, pursuant to the eleventh section of the act by which it is incorporated; in fulfilling the public stipulations in this particular, it is expected a valuable saving will be made. appropriations for the current service of the ensuing year, and for such extraordinaries as may require provision, will demand, and i doubt not will engage, your early attention. _gentlemen of the senate, and of the house of representatives:_ i content myself with recalling your attention, generally, to such objects, not particularized in my present, as have been suggested in my former communications to you. various temporary laws will expire during the present session. among these, that which regulates trade and intercourse with the indian tribes will merit particular attention. the results of your common deliberations hitherto, will, i trust, be productive of solid and durable advantages to our constituents; such as, by conciliating more and more their ultimate suffrage, will tend to strengthen and confirm their attachment to that constitution of government upon which, under divine providence, materially depend their union, their safety, and their happiness. still further to promote and secure these inestimable ends, there is nothing which can have a more powerful tendency, than the careful cultivation of harmony, combined with a due regard to stability in the public councils. g. washington. united states, _november , ._ the president of the united states having retired, and the two houses being separated, _ordered_, that messrs. strong, king, and rutherford, be a committee to prepare and report the draft of an address to the president of the united states, in answer to his speech this day, to both houses of congress convened in the senate chamber. _ordered_, that the speech of the president of the united states, delivered this day, be printed for the use of the senate. thursday, november . john henry, from the state of maryland, attended, and took his seat. agreeably to the order of the day, the senate took into consideration the address reported by the committee to the president of the united states, in answer to his speech to both houses of congress; which, being recommitted and amendments reported, was agreed to, as amended. _ordered_, that the same committee wait on the president of the united states, and desire him to acquaint the senate at what time and place it will be most convenient for him that it should be presented. mr. strong, from the above-mentioned committee, reported that the president of the united states proposed to receive the address of the senate at o'clock to-morrow. friday, november . the senate waited on the president of the united states at his own house, and the president _pro tempore_, in their name, communicated to him the address agreed to on the th instant, which is as follows: _to the president of the united states:_ accept, sir, our grateful acknowledgments for your address at the opening of the present session. we participate with you in the satisfaction arising from the continuance of the general prosperity of the nation, but it is not without the most sincere concern that we are informed that the reiterated efforts which have been made to establish peace with the hostile indians, have hitherto failed to accomplish that desired object. hoping that the measures still depending may prove more successful than those which have preceded them, we shall nevertheless concur in every necessary preparation for the alternative; and, should the indians on either side of the ohio persist in their hostilities, fidelity to the union, as well as affection to our fellow-citizens on the frontiers, will ensure our decided co-operation in every measure which shall be deemed requisite for their protection and safety. at the same time that we avow the obligation of the government to afford its protection to every part of the union, we cannot refrain from expressing our regret that even a small portion of our fellow-citizens in any quarter of it should have combined to oppose the operation of the law for the collection of duties on spirits distilled within the united states: a law repeatedly sanctioned by the authority of the nation, and, at this juncture, materially connected with the safety and protection of those who oppose it. should the means already adopted fail in securing obedience to this law, such further measures as may be thought necessary to carry the same into complete operation cannot fail to receive the approbation of the legislature, and the support of every patriotic citizen. it yields us particular pleasure to learn, that the productiveness of the revenue of the present year will probably supersede the necessity of any additional tax for the service of the next. the organization of the government of the state of kentucky being an event peculiarly interesting to a part of our fellow-citizens, and conducive to the general order, affords us particular satisfaction. we are happy to learn that the high state of our credit abroad has been evinced by the terms on which the new loans have been negotiated. in the course of the session we shall proceed to take into consideration the several objects which you have been pleased to recommend to our attention; and, keeping in view the importance of union and stability in the public councils, we shall labor to render our decisions conducive to the safety and happiness of our country. we repeat with pleasure our assurances of confidence in your administration, and our ardent wish that your unabated zeal for the public good may be rewarded by the durable prosperity of the nation, and every ingredient of personal happiness. john langdon, _president pro tempore._ to this address, the president of the united states was pleased to make the following reply: i derive much pleasure, gentlemen, from your very satisfactory address. the renewed assurances of your confidence in my administration, and the expression of your wish for my personal happiness, claim and receive my particular acknowledgments. in my future endeavor for the public welfare, to which my duty may call me, i shall not cease to count upon the firm, enlightened, and patriotic support of the senate. g. washington. the senate returned to their chamber. monday, november . samuel johnston, from the state of north carolina, and joseph stanton, from the state of rhode island, attended. wednesday, november . the petition of william dunbar, executor of the last will and testament of george galphin, deceased, late a commissioner of indian affairs, was presented and read, praying in behalf of the children of the said george galphin, that the compensation allowed to the other commissioners of indian affairs may be extended to them, the legal representatives of their late father. on motion that this petition be referred to a committee, it passed in the negative. friday, november . richard bassett, from the state of delaware, attended and took his seat. thursday, january , . a motion was made and seconded that the senate adopt the following resolutions, to wit: "_resolved_, that the senate of the united states are individually responsible for their conduct to their constituents, who are entitled to such information as will enable them to form a just estimate thereof. "_resolved_, that the journals are too voluminous and expensive to circulate generally; and, if it were otherwise, that the information they contain, as to the principles, motives, and designs of individual members, is inadequate. "_resolved_, that this information, defective as it is, becomes more nugatory and delusive, in proportion as the occasion for it increases, since the senate make their own journals. "_resolved_, that the conducting of the legislative and judicial powers of the senate in public, and suffering an account of their measures and deliberations to be published in the newspapers, is the best means of diffusing general information concerning the principles, motives, and conduct of individual members; and that, by withholding this information, responsibility becomes unavailing, the influence of their constituents over one branch of the legislature, in a great measure, annihilated, and the best security which experience has devised against the abuse of power and a maladministration abandoned. "_resolved_, _therefore_, that it be a standing rule that the doors of the senate chamber remain open whilst the senate shall be sitting in a legislative and judicative capacity, except on such occasions as, in their judgment, may require secrecy; and that this rule shall commence and be in force on the first day of the next session of congress. "_resolved_, that the secretary of the senate request the commissioners of the city and county of philadelphia to cause a proper gallery to be erected for the accommodation of an audience." on motion that the resolves now proposed be printed for the use of the senate, it passed in the negative. _ordered_, that they lie on the table, and that the consideration thereof be the order of the day for the first monday in february next. friday, january . the senate resumed the second reading of the bill respecting fugitives from justice, and persons escaping from the service of their masters, and the report of the committee thereon; and, after debate, the consideration thereof was further postponed. friday, january . the bill respecting fugitives from justice and persons escaping from the service of their masters, was read the third time, and being further amended, on a motion to strike out "five hundred dollars," for the purpose of inserting a less sum in section th, the penalty on "any person who shall knowingly and willingly obstruct or hinder such claimant, his agent or attorney, in so seizing or arresting such fugitive from labor, or shall rescue such fugitive from such claimant, his agent, or attorney, when so arrested, pursuant to the authority herein given or declared, or shall harbor or conceal such person, after notice that he or she was a fugitive from labor as aforesaid;" it passed in the negative. _resolved_, that this bill pass, that it be engrossed, and that the title thereof be, "an act respecting fugitives from justice, and persons escaping from the service of their masters." monday, february . richard potts, from the state of maryland, appointed in place of charles carroll, resigned, produced his credentials, and took his seat. agreeably to the order of the day, the senate proceeded to consider the motion made the d of january, , "that the doors of the senate chamber remain open whilst the senate shall be sitting in their legislative and judicative capacity." on motion for the previous question, to wit: shall the question be now put on the following preliminary resolutions? "_resolved_, that the senate of the states are, individually, responsible for their conduct to their constituents, who are entitled to such information as will enable them to form a just estimate thereof: "_resolved_, that the journals are too voluminous and expensive to circulate generally; and, if it were otherwise, that the information they contain, as to the principles, motives, and designs, of individual members, is inadequate: "_resolved_, that this information, defective as it is, becomes more nugatory and delusive, in proportion as the occasion for it increases, since the senate make their own journals: "_resolved_, that the conducting of the legislative and judicial powers of the senate in public, and suffering an account of their measures and deliberations to be published in the newspapers, is the best means of diffusing general information concerning the principles, motives, and conduct, of individual members: and that, by withholding this information, responsibility becomes unavailing, the influence of their constituents over one branch of the legislature in a great measure annihilated, and the best security which experience has devised against the abuse of power and a maladministration abandoned:" it passed in the negative--yeas , nays , as follows: yeas.--messrs. burr, butler, edwards, gunn, monroe, potts, and taylor. nays.--messrs. bassett, bradley, brown, cabot, dickinson, ellsworth, foster, hawkins, henry, johnston, izard, king, langdon, morris, read, robinson, rutherford, stanton, sherman, strong, and wingate. and on motion to agree to the main question, to wit: "that the doors of the senate chamber remain open whilst the senate shall be sitting in a legislative and judicative capacity, except on such occasions as, in their judgment, may require secrecy; and that this rule shall commence and be in force on the first day of the next session of congress." it passed in the negative--yeas , nays , as follows: yeas.--messrs. brown, burr, butler, edwards, gunn, hawkins, king, monroe, potts, and taylor. nays.--messrs. bassett, bradley, cabot, dickinson, ellsworth, foster, henry, johnston, izard, langdon, morris, read, robinson, rutherford, sherman, stanton, strong, and wingate. on the question to agree to the last resolution moved for on this subject, it passed in the negative. tuesday, february . a message from the house of representatives informed the senate, that the house of representatives have resolved, that a committee be appointed to join such committee as may be appointed by the senate to ascertain and report a mode of examining the votes for president and vice president, and of notifying the persons who shall be elected of their election; and for regulating the time, place, and manner, of administering the oath of office to the president; and have appointed a committee on their part. this resolution of the house was read. _ordered_, that the consideration thereof be postponed until to-morrow. the senate proceeded to consider the amendment of the house of representatives to the bill sent from the senate for concurrence, entitled, "an act respecting fugitives from justice, and persons escaping from the service of their masters," and agreed to the amendment, to wit: to strike out the word "deemed," in section first. _ordered_, that the secretary acquaint the house of representatives therewith. wednesday, february . the senate proceeded to consider the resolution of the house of representatives, that a committee be appointed, to join such committee as may be appointed by the senate, to ascertain and report a mode of examining the votes for president and vice president, and of notifying the persons who shall be elected of their election, and for regulating the time, place and manner of administering the oath of office to the president. _resolved_, that the senate concur in this resolution, and that messrs. king, izard, and strong be the committee on the part of the senate. monday, february . mr. king, from the joint committee, appointed the th february, instant, reported that the two houses should assemble in the senate chamber on wednesday next, at twelve o'clock; that one person be appointed a teller, on the part of the senate, to make a list of the votes as they shall be declared; that the result shall be delivered to the president of the senate, who shall announce the state of the vote, and the persons elected, to the two houses assembled as aforesaid; which shall be deemed a declaration of the persons elected president and vice president, and, together with a list of the votes, be entered on the journals of the two houses, and the report was agreed to. tuesday, february . a message from the house of representatives informed the senate, that the house of representatives agree to the report of the joint committee appointed the th of february, instant, respecting the manner of counting the votes for president and vice president of the united states. _ordered_, that mr. king be appointed, on the part of the senate, a teller of the votes for president and vice president of the united states, conformably to the report of the joint committee, agreed to the th instant. wednesday, february . _ordered_, that the secretary notify the house of representatives that the senate are ready to meet them in the senate chamber, to attend the opening and counting the vote for president and vice president of the united states, as the constitution provides. the two houses having accordingly assembled, the certificates of the electors of the fifteen states in the union, which came by express, were, by the vice president, opened, read, and delivered to the tellers appointed for the purpose, who, having examined and ascertained the votes, presented a list of them to the vice president; which list was read to the two houses, and is as follows: for george washington. new hampshire, massachusetts, rhode island, connecticut, vermont, new york, new jersey, pennsylvania, delaware, maryland, virginia, kentucky, north carolina, south carolina, georgia, --- for john adams. new hampshire, massachusetts, rhode island, connecticut, vermont, new jersey, pennsylvania, delaware, maryland, south carolina, -- for george clinton. new york, pennsylvania, virginia, north carolina, georgia, -- for thomas jefferson. kentucky, for aaron burr. south carolina, whereupon the vice president declared george washington unanimously elected president of the united states, for the period of four years, to commence with the fourth day of march next; and john adams elected by a plurality of votes, vice president of the united states, for the same period, to commence with the th day of march next. after which, the vice president delivered the duplicate certificates of the electors of the several states, received by post, together with those which came by express to the secretary of the senate. the two houses then separated, and the senate adjourned. thursday, february . mr. king, from the committee appointed the th instant, to join the committee on the part of the house of representatives, to report a mode of notifying the person who should be elected president of the united states of his election, submitted the following resolve: _resolved_, that a committee be appointed to join such committee as shall be appointed by the house of representatives, to wait on the president and notify him of his unanimous re-election to the office of president of the united states. and the report was adopted. _ordered_, that messrs. king, izard, and strong, be the committee on the part of the senate. a message from the house of representatives informed the senate that the house of representatives have adopted the report of the joint committee, appointed the th instant, to ascertain and report a mode of examining the votes for _president_ and vice president of the united states, and for other purposes; and have appointed a joint committee on their part to wait on the president, and notify him of his unanimous re-election to the office of president of the united states. friday, february . mr. king, from the joint committee appointed for that purpose, reported: "that pursuant to the resolutions of the th instant, the joint committee of the senate and house of representatives have this day waited on the president, and notified him of his unanimous re-election to the office of president of the united states." monday, february . on motion to adopt the following resolution, to wit: _resolved_, that the secretary of the treasury be instructed to revise the account of the pension granted by congress for the education and board of hugh mercer, son of the late general mercer, from its date to the present period, and correct any error that may have taken place therein, paying all arrearages, if any now due; and that he likewise pay hereafter without account, annually, and until his education shall be completed, for that purpose, to the guardian of the said hugh, the sum of four hundred dollars. it was agreed to postpone the consideration of this motion until to-morrow. thursday, february . the vice president laid before the senate a certificate, purporting that the legislature of the commonwealth of pennsylvania have this day chosen albert gallatin a senator of the united states. friday, march . the president laid before the senate a letter from the secretary of the department of state, enclosing a triplicate certificate of the votes of the electors of the state of kentucky for president and vice president of the united states, obtained by express, sent from the seat of government, as the law provides. saturday, march . mr. king, from the committee appointed this day on the communication of the president of the united states, relative to his taking the oath of office, reported that the secretary inform the house of representatives that the president of the united states will, on monday next, take the oath of office required by the constitution, in the senate chamber, at twelve o'clock; and that he inform the president of the united states that the senate will be in session at that time. and the report was adopted. special session. monday, march . in conformity to the summons from the president of the united states, the senate assembled in the senate chamber. the hon. john langdon, president _pro tempore_, read the summons of the president of the united states, as follows: _the president of the united states to the president of the senate:_ certain matters, touching the public good, requiring that the senate shall be convened on monday the th instant, i have desired their attendance, as i do yours, by these presents, at the senate chamber, in philadelphia, on that day; then and there to receive and deliberate on such communications as shall be made to you on my part. g. washington. _march , ._ the following senators were present: john langdon, from new hampshire. george cabot, from massachusetts. theodore foster, from rhode island. oliver ellsworth and roger sherman, from connecticut. rufus king, from new york. john rutherford, from new jersey. robert morris, from pennsylvania. george read, from delaware. john henry and richard potts, from maryland. james monroe, from virginia. john brown and john edwards, from kentucky. benjamin hawkins, from north carolina. ralph izard, from south carolina. james gunn, from georgia. samuel livermore, from the state of new hampshire, produced his credentials, and took his seat in the senate; and the oath was administered to him by the president of the senate, as the law provides. agreeably to notice given by the president of the united states, on the d instant, he came to the senate chamber and took his seat in the chair usually assigned the president of the senate, who, on this occasion, was seated at the right, and in advance of the president of the united states; a seat on the left, and also in advance, being provided for judge cushing, appointed to administer the oath: the doors of the senate chamber being open, the heads of the departments, foreign ministers, the late speaker, and such members of the late house of representatives as were in town, together with as many other spectators as could be accommodated, were present. after a short pause, the president of the senate arose, and addressed the president of the united states, as follows: "sir: one of the judges of the supreme court of the united states is now present, and ready to administer to you the oath required by the constitution to be taken by the president of the united states." on which the president of the united states, rising from his seat, was pleased to address the audience as follows: "fellow-citizens: i am again called upon, by the voice of my country, to execute the functions of its chief magistrate. when the occasion proper for it shall arrive, i shall endeavor to express the high sense i entertain of this distinguished honor, and of the confidence which has been reposed in me by the people of united america. "previous to the execution of any official act of the president, the constitution requires an oath of office. this oath i am now about to take, and in your presence; that, if it shall be found, during my administration of the government, i have, in any instance, violated, willingly or knowingly, the injunction thereof, i may (besides incurring constitutional punishment) be subject to the upbraidings of all who are now witnesses of the present solemn ceremony." judge cushing then administered the oath of office required by the constitution; after which, the president of the united states retired, and the spectators dispersed. after acting upon several nominations received from the president, the senate adjourned _sine die_. second congress.--second session. proceedings and debates in the house of representatives. monday, november , . this being the day appointed by law for the meeting of the present congress, the following members appeared, produced their credentials, and took their seats: _from new hampshire_, nicholas gilman, samuel livermore, and jeremiah smith. _from massachusetts_, fisher ames, shearjashur bourne, elbridge gerry, benjamin goodhue, george thatcher, and artemas ward. _from rhode island_, george leonard, benjamin bourne. _from connecticut_, amasa learned, jonathan sturges, and jonathan trumbull, (speaker.) _from vermont_, nathaniel niles and israel smith. _from new york_, egbert benson, john laurance, and thomas tredwell. _from new jersey_, elias boudinot, abraham clark, and jonathan dayton. _from pennsylvania_, thomas fitzsimons and frederick augustus muhlenberg. _from maryland_, philip key and william vans murray. _from virginia_, william b. giles, james madison, andrew moore, josiah parker, abraham venable, and alexander white. _from north carolina_, nathaniel macon, john steele, and hugh williamson. _from south carolina_, william smith, thomas sumter, and thomas tudor tucker. _from georgia_, abraham baldwin and francis willis. a quorum of members being present, a message was sent to the senate to inform that body thereof. and a similar message was received by the house from the senate; and that john langdon had been chosen their president _pro tempore_. a joint committee were then appointed to wait on the president of the united states, to inform him that a quorum of the two houses is assembled, and ready to receive any communications he may think proper to make them. _resolved_, that two chaplains, of different denominations, be appointed to congress, one by each house, to interchange weekly. the house then proceeded to appoint a chaplain on their part, when a majority of votes appeared in favor of the reverend ashbel green. the speaker laid before the house a letter from the governor of georgia, enclosing a proclamation and return of the election of john milledge, to serve as one of the members of this house for the said state, in the room of anthony wayne, whose seat was declared vacant; which was read and ordered to lie on the table. mr. boudinot, from the joint committee appointed to wait on the president of the united states, and notify him that a quorum of the two houses is assembled and ready to receive any communications he may be pleased to make to them, reported that the committee had performed that service, and that the president was pleased to say, that he would make a communication to both houses of congress to-morrow, at twelve o'clock in the senate chamber. tuesday, november . several other members, viz: from new york, james gordon; from pennsylvania, john wilkes kittera; and from virginia, samuel griffin and john page, appeared, and took their seats in the house. a message from the senate informed the house that the senate are now ready, in the senate chamber, to attend this house in receiving the communication from the president of the united states, agreeably to his notification to both houses yesterday. the speaker, attended by the members of this house, then withdrew to the senate chamber for the purpose expressed in the message from the senate; and, being returned, the speaker laid before the house a copy of the speech delivered by the president of the united states to both houses of congress, in the senate chamber. [a copy of the speech appears in the proceedings of the senate.] _ordered_, that the said speech be committed to the consideration of a committee of the whole house to-morrow. wednesday, november . _defeat of general st. clair._ _ordered_, that the report of the committee appointed to inquire into the causes of the failure of the late expedition under major general st. clair, which was made on the th day of may last, be referred to the consideration of a committee of the whole house on wednesday next. _answer to the president._ the order of the day being called for, (mr. laurance in the chair,) the speech of the president, delivered yesterday to congress, was taken up; and, on motion of mr. smith, of south carolina, the following resolve was agreed to: "that a committee be appointed to prepare and report a respectful address to the president of the united states, in answer to his speech delivered to both houses of congress at the opening of the present session; with assurances, that they would take into consideration the important matters therein contained." an amendment was now moved, to strike out the word "important;" but it was negatived, as being a word of too much importance to be neglected. the resolution was carried, in substance, as above, and the committee rose and reported it. the house immediately agreed, and a committee of three--messrs. madison, benson, and murray--were appointed by the speaker to prepare the answer in conformity with the said resolve. the following message was received from the president of the united states: _gentlemen of the senate, and of the house of representatives:_ i lay before you copies of certain papers relative to the spanish interference in the execution of the treaty entered into in the year , between the united states, and the creek nation of indians, together with a letter from the secretary of state to the president of the united states, on the same subject. g. washington. united states, november , . the papers accompanying the said message were read and ordered to lie on the table. the speaker laid before the house two letters from thomas barclay, consul of the united states at the court of morocco, one dated the th of may, the other the th of july, , enclosing petitions from richard o'brien, in behalf of himself and other citizens of the united states, now in captivity at algiers, stating the peculiar hardships they have undergone during the time they have been kept in slavery, and praying that congress will consider their distressed situation, and take such measures for their releasement as to their wisdom shall seem meet. _ordered_, that the said letters and petitions be referred to the secretary of state, for information. thursday, november . several other members, to wit: from connecticut, james hillhouse; from pennsylvania, william findlay and israel jacobs; and from kentucky, alexander d. orr, appeared, and took their seats in the house. saturday, november . two other members, to wit: peter sylvester, from new york, and thomas hartley, from pennsylvania, appeared, and took their seats in the house. _address to the president._ the house resolved itself into a committee of the whole house on the address to the president of the united states, in answer to his speech to both houses of congress; and, after some time spent therein, the speaker resumed the chair, and mr. laurance reported that the committee had had the said address under consideration, and made several amendments thereto; which were severally twice read, and agreed to by the house. and then the said address, as amended, being again read, was, on the question put thereon, agreed to by the house, as follows: "sir: the house of representatives, who always feel a satisfaction in meeting you, are much concerned that the occasion for mutual felicitation afforded by the circumstances favorable to the national prosperity should be abated by a continuance of the hostile spirit of many of the indian tribes, and, particularly, that the reiterated efforts for effecting a general pacification with them should have issued in new proofs of their persevering enmity, and the barbarous sacrifice of citizens, who, as the messengers of peace, were distinguishing themselves by their zeal for the public service. in our deliberations on this important department of our affairs, we shall be disposed to pursue every measure that may be dictated by the sincerest desire, on one hand, of cultivating peace, and manifesting, by every practicable regulation, our benevolent regard for the welfare of those misguided people; and by the duty we feel, on the other, to provide effectually for the safety and protection of our fellow-citizens. "while with regret we learn that symptoms of opposition to the law imposing duties on spirits distilled within the united states, have manifested themselves, we reflect with consolation, that they are confined to a small portion of our fellow-citizens. it is not more essential to the preservation of true liberty, that a government should be always ready to listen to the representations of its constituents, and to accommodate its measures to the sentiments and wishes of every part of them, as far as will consist with the good of the whole, than it is, that the just authority of the laws should be steadfastly maintained. under this impression, every department of the government, and all good citizens must approve the measures you have taken, and the purpose you have formed, to execute this part of your trust with firmness and energy; and be assured, sir, of every constitutional aid and co-operation, which may become requisite on our part. and we hope that, while the progress of contentment under the law in question, is as obvious as it is rational, no particular part of the community may be permitted to withdraw from the general burdens of the country, by a conduct as irreconcilable to national justice, as it is inconsistent with public decency. "the productive state of the public revenue, and the confirmation of the credit of the united states abroad, evinced by the loans at antwerp and amsterdam, are communications the more gratifying, as they enforce the obligation to enter on systematic and effectual arrangements for discharging the public debt, as fast as the conditions of it will permit; and we take pleasure in the opportunity to assure you of our entire concurrence in the opinion, that no measure can be more desirable, whether viewed with an eye to the urgent wish of the community, or the intrinsic importance of promoting so happy a change in our situation. "the adoption of a constitution for the state of kentucky, is an event on which we join in all the satisfaction you have expressed. it may be considered as particularly interesting, since, besides the immediate benefits resulting from it, it is another auspicious demonstration of the facility and success with which an enlightened people is capable of providing, by free and deliberate plans of government, for their own safety and happiness. "the operation of the law establishing the post office, as it relates to the transmission of newspapers, will merit our particular inquiry and attention, the circulation of political intelligence through these vehicles being justly reckoned among the surest means of preventing the degeneracy of a free government, as well as of recommending every salutary public measure to the confidence and co-operation of all virtuous citizens. "the several other matters which you have communicated and recommended, will, in their order, receive the attention due to them, and our discussions will, in all cases, we trust, be guided by a proper respect for harmony and stability in the public councils, and a desire to conciliate, more and more, the attachment of our constituents to the constitution, by measures accommodated to the true ends for which it was established." _resolved_, that the speaker, attended by the house, do present the said address, and that mr. madison, mr. benson, and mr. murray, be a committee to wait on the president, to know when and where it will be convenient for him to receive the same. mr. madison, from the committee appointed to wait on the president of the united states, to know when and where it will be convenient for him to receive the address of this house, in answer to his speech to both houses of congress, reported that the committee had waited on the president, who signified to them that it would be convenient to him to receive the said address at o'clock on monday next, at his own house. monday, november . another member, to wit, john baptist ashe, from north carolina, appeared, and took his seat in the house. _address to the president._ the speaker, attended by the house, then withdrew to the house of the president of the united states, and there presented to him the address of this house, in answer to his speech to both houses of congress; to which the president made the following reply: "gentlemen: it gives me pleasure to express to you the satisfaction which your address affords me. i feel, as i ought, the approbation you manifest of the measures i have taken, and the purpose i have formed, to maintain, pursuant to the trust reposed in me by the constitution, the respect which is due to the laws; and the assurance which you, at the same time, give me, of every constitutional aid and co-operation that may become requisite on your part. "this is a new proof of that enlightened solicitude for the establishment and confirmation of public order, which, embracing a zealous regard for the principles of true liberty, has guided the deliberations of the house of representatives; a perseverance in which can alone secure, under the divine blessing, the real and permanent felicity of our common country. "g. washington." the house having returned to their chamber, resumed the reading of the papers communicated by the secretary of war, on wednesday last, relative to the indians north-west and south of the river ohio, and to the troops in the service of the united states, and made a farther progress therein. tuesday, november . two other members, to wit: robert barnwell and daniel huger, from south carolina, appeared, and took their seats in the house. _defeat of general st. clair._ on a motion made and seconded, that the house do come to the following resolution: "_resolved_, that the secretary of the treasury and the secretary of war be notified that this house intend, on wednesday next, to take into consideration the report of the committee appointed to inquire into the causes of the failure of the late expedition under general st. clair, to the end that they may attend the house, and furnish such information as may be conducive to the due investigation of the matters stated in the said report:" mr. williamson moved to strike out the latter part of the resolution, which respected the attendance of the secretaries on the house. this motion, if carried, leaves the resolution a simple proposition to inform those officers that the house were, on wednesday, to take the report on the failure of general st. clair's expedition into consideration. mr. venable objected generally to the resolution, as inconsistent with the dignity of the house. he doubted the propriety of the measure altogether. the gentlemen are not impeached, and therefore the house has no right to cite them to make their appearance; and, with respect to information, the house can command such from the heads of departments as they may see proper to require. he was at a loss in attempting to investigate the object of the resolution. he could see no purpose that it would answer, which could not as well be obtained without it. mr. white offered several objections to the resolution, of a similar import with the above. mr. dayton supported the motion by a few remarks, stating the importance of that information which those gentlemen alone could give. he adverted to the report of the committee, which he observed had exculpated the commanding general on that expedition, whereas he was of opinion that the failure was owing to the misconduct of that gentleman. mr. tucker objected to the resolution. he preferred the mode of requiring that information which the house might think necessary, in writing. mr. madison objected to the motion on constitutional grounds, and as being contrary to the practice of the house. he had not, he said, thoroughly revolved the matter in his own mind, and therefore was not prepared to state fully the effects which would result from the adoption of the resolution; but he would hazard thus much, that it would form an innovation in the mode of conducting the business of this house, and introduce a precedent which would lead to perplexing and embarrassing consequences; as it involved a conclusion, in respect to the principles of the government, which at an earlier day would have been revolted from. he was decidedly in favor of written information. mr. clark was opposed to the resolution; as a member of the committee who made the report, he had no apprehension; with respect to information, the report and the vouchers are before the house; and such further inquiry may be made of the proper officers as the house may think necessary. mr. ames supported the resolution. he noticed the impressions which the failure of the late expedition had made on the public mind. characters had suffered in the general estimation. it was of the utmost importance that a thorough investigation should take place, that if the failure of the expedition was a mere casualty, and the fortune of war, it might be made to appear; or if it was owing to misconduct, the blame might fall on the proper subjects. the mode suggested to obtain information appeared to him the best that could be adopted--the most adequate to the object. it was due to justice, to truth, and to the national honor, to take effectual measures to investigate the business thoroughly. this inquiry appears to be the beginning of an arrangement preparatory to an impeachment; on whom this will fall, he should not presume to say; but still it places the subject in an important point of view, and shows in the strongest manner the necessity of adopting the best possible mode of ascertaining the real state of facts. this, he conceived, could not be done so effectually as by the mode proposed in the resolution. mr. giles objected to the resolution. he preferred a thorough discussion of the report, in the first place, and a comparison of the vouchers with the report; and if, in the issue, it should appear necessary to call for information from these officers, it could then be done; but, in the present state of the business, to adopt the resolution would place the committee in a very disagreeable situation. mr. laurance observed that the committee, in their report, say that, for want of time, they had not been able to complete it; it is, then, apparent from the report itself that it is immature. he stated several particulars in the report which were incomplete, and from hence inferred that there was material information to be received previous to being able to form a competent judgment on the matter. he observed that, as the information must be had, he saw no necessity of postponing the attendance of those officers in the first instance. mr. madison, in reply to mr. ames's remark, that the best possible mode ought to be adopted, observed, that there seemed to be different ideas entertained by the different advocates of the resolution; one seemed to implicate the officers alluded to as parties concerned; another appeared to consider them merely as witnesses. for his part, he thought there was no other way of proceeding, but that of adopting one or the other of these alternatives: either to take up the report and discuss its merits, or for the house to begin the inquiry themselves, _de novo_. mr. livermore objected to the resolution. he could not see any advantage which would result from adopting it. he thought the causes of the failure of the expedition were sufficiently obvious, without criminating any body. he adverted to these causes--they were, the rawness of the troops, and the superiority of the indians as marksmen. on these points he could not see what information could be derived from the secretary of the treasury. he thought that the legislature had gone too far already, and that no satisfaction would result from further proceedings, but that the subject would appear more and more involved. mr. boudinot, after stating sundry particulars relative to the state of the public mind at the time of the report, adverted to several parts of it which appear to criminate particular persons, some of whom were absent at the time of the investigation on which the report is founded. he therefore urged the necessity of receiving from the heads of the departments that information which was requisite to throw light on several parts of the report, and that this ought to be done previous to taking the report into consideration. mr. fitzsimons said he should vote against the resolution. he did not think this the proper time to call for the information alluded to; nor the mode proposed a proper one. some remarks have been made on the report, though it is not before the house; to these he should not particularly reply, but would only observe, that no person had applied to the house for redress of any supposed injury received by the report. it has been said that the inquiry ought to have been a military one; but it was well known that it was impossible to institute such an inquiry by reason of the want of officers. he then gave a sketch of the mode of proceeding adopted by the committee in conducting the inquiry, to show that they had availed themselves of every means of information within their power. mr. williamson said he had moved to strike out the latter part of the resolution, but he was equally opposed to the whole of it; and since he had heard the remarks of several gentlemen, on both sides of the house, he was clearly of opinion that the best way was to dispose of it altogether, and let the subject proceed in the course which it had already taken. mr. giles observed, that he thought there was less delicacy observed on this occasion, in respect to the committee, than was usual in this house. with respect to the report, the vouchers on which every assertion is founded are before the house. as to the incompleteness of the report, it is an immaterial object; the few blanks it contains are occasioned by the want of time to examine the voluminous papers necessary to be examined, in order to ascertain some of the facts--facts not in themselves of the first importance. he observed, that he had not the smallest objection to the fullest investigation of the subject; he was in favor of all the information that could be possibly obtained; he objected not only to the mode now contended for, which he thought not only liable to all the objections which had been made, but to many others which might be offered. mr. dayton observed that he was one of those who were not satisfied with the report; he did not think the conclusion which exculpated the commanding officer could be supported by the report itself. he adverted to several facts stated in it, which showed that the commander must have been highly culpable; he instanced the slowness of his movements, the dilatoriness in constructing forts, and his being surprised by the enemy. he thought that the remarks which had fallen from gentlemen, on what he had said, were illiberal, as they had virtually impeached his candor, when he was not conscious of deviating from its dictates. it was not his intention to have touched on the merits of the report, but he had been impelled to do it from the turn the debate had taken. mr. gerry was in favor of the resolution. he enlarged on the magnitude of the object of investigation, and insisted that it was the indispensable duty of the house thoroughly to probe the subject to the bottom, that if any persons have been to blame they may suffer, or if the event which has taken place, by which the national character has suffered, and so severe and unproductive an expense has been incurred, amounting probably to one million dollars, has been owing to circumstances which could not be avoided or controlled, the public may receive satisfaction as to the whole matter. mr. page objected to the resolution, particularly to the precedent it would establish; but, at the same time, he was in favor of the fullest inquiry the subject was susceptible of. he said, the mode proposed would operate to clog the freedom of inquiry, and the freedom of debate. mr. ames, adverting to the spirit of the report, pointed out the peculiar situation of the two secretaries, and that they did not stand on the same ground with other persons who are not so intimately implicated in the matter. he alluded to the various objections which had been urged from precedent, from the fulness of the investigation which the subject had undergone in the hands of the committee, and from the remark by mr. livermore, that sufficient had already been done. to this last objection he particularly replied, by saying that the public wanted further satisfaction, and that the house could not justify themselves to their constituents without a stricter and fuller investigation, that the whole of the facts might be laid before them. mr. madison said, the mode now proposed involved a dereliction of the only practicable mode of transacting public business; and that, however imperfect that mode might be, still he believed that it was the only one that had received the sanction of experience and utility. he therefore hoped that the resolution would be rejected, and the mode already adopted persevered in, and the necessary information called for in writing, from every person in anywise interested or competent to give it. mr. w. smith supported the resolution. he showed by the report itself, and from the reasoning used by gentlemen in opposition to the resolution, that the two secretaries were implicated in the causes of the failure of the expedition; from hence, he inferred the justice and propriety of giving them an opportunity of exculpating themselves. mr. gerry expressed surprise at the apprehension which some gentlemen appear to entertain of the measure of introducing the heads of departments into the house; for his part he had no such apprehensions. the secretary will attend at the orders of the house merely to give such information as may be required, and not as members or ministers to influence and govern the determinations of the house. mr. venable objected further to the resolution; he urged the impropriety of any of the heads of departments coming forward, and attempting in any way to influence the deliberations of the legislature. mr. laurance replied to mr. venable; he observed that the gentleman appeared to mistake the object of the resolution; it was not contemplated that either of the secretaries should appear on the floor of the house to influence, in any degree, its decisions; they are to be called on merely for information. mr. murray objected to the resolution. the report, he observed, is made to the house; if in the course of its discussion any further light or information should be deemed necessary, it may then be called for, and in that mode which shall appear most eligible; at present the question appears to be premature. mr. murray added several other remarks, and then the question being put, mr. williamson's motion for striking out was carried. and then the main question being put, that the house do agree to the said resolution as amended, it passed in the negative. _resolved_, that the committee of the whole house, to whom is referred the report of the committee appointed to inquire into the causes of the failure of the expedition under major general st. clair, be empowered to send for persons, papers, and records, for their information. wednesday, november . another member, to wit, william barry grove, from north carolina, appeared and took his seat in the house. the speaker laid before the house a letter from the secretary of war, together with a memorial of samuel hodgdon, late quartermaster general to the army, respectively praying that they may be heard, and permitted to give information and explanations as to the causes of the failure of the expedition under major general st. clair; which were read. the letter of the secretary of war is as follows: war department, _november , _. sir: after the close of the last session of congress, i saw with much concern the report to the committee appointed to inquire into the causes of the failure of the expedition, under major general st. clair, of the th of may, ; which, having been presented to the house in the last moments of the session, was ordered to be printed, and has since circulated in the public newspapers throughout the united states, containing suggestions, most of them founded upon _ex parte_ investigation, which have been understood in a sense very injurious to my reputation. learning that the present day was appointed for taking into consideration the above-mentioned report, i have waited with anxious expectation for some act of the house enabling me to attend the progress of the examination upon which they are about to enter, for the purpose of furnishing such information and explanations as might conduce to a right understanding of facts, in which i am so materially implicated. the failure of a proposition, which i am informed was made to the house with that view, has added to my solicitude and regret. thus situated, i feel myself called upon to ask of the justice of the house that some mode may be devised, by which it will be put into my power to be present during the course of the intended inquiry, as well to hear the evidence on which the several allegations contained in the report are founded, as to offer the information and explanations to which i have alluded. to this step i am impelled by a persuasion that an accurate and satisfactory investigation cannot otherwise be had with equal advantage, if at all. and my entire reliance upon the equity and impartiality of the house, will not permit a doubt to exist on my part that such an investigation will be exclusively the object of their desire and pursuit. i have the honor to be, sir, with the highest respect, your most obedient humble servant, h. knox. _the_ speaker _of the honorable the house of representatives of the u. s._ _defeat of general st. clair._ and then the order of the day, that the house do resolve itself into a committee of the whole house on the report of the committee appointed to inquire into the causes of the failure of the expedition under major general st. clair, being taken up-- mr. madison suggested that the most simple, most practicable and consistent plan would be, to recommit the report of the select committee, and refer the present applications[ ] to the committee to whom the report shall be recommitted. he therefore moved that the committee of the whole should be discharged from considering the reports on the causes of the failure of the late expedition. mr. smith (s. c.) observed that several objections struck him in opposition to this motion. the house must at some period, said he, meet this case; if it is recommitted, there will be an impropriety in referring it to the same committee; if a new committee is appointed, they must begin the whole subject _de novo_; and, if their investigation should take up such a length of time as that of the former committee, the session will be expended, and at the close of it the business will recur on the house, and the same discussion will occur again that is now proposed. he hoped the house would therefore proceed in the consideration of the report, assign two or three days in the week for the purpose, and continue the investigation till the whole is finished. mr. giles replied, that he had no doubt that the vouchers on which the committee had founded the report would appear sufficient to justify the decisions that they had made. he said that he did not suppose that the applicants would adduce any new information; one of them had been called on, he attended the committee, and he supposed that he had furnished all the information he was in possession of. he objected to a recommitment; as one of the committee, he was perfectly satisfied with the report; nor did he conceive there was any additional evidence to be produced, except it was of a recent date. mr. ames said, he perceived such a disinclination to go into the subject as indicated a proper temper of mind in relation to the persons supposed to be in any ways interested in the ultimate decision of the house. he was opposed to a recommitment, as it would procrastinate instead of expediting the inquiry. he adverted to the report. facts are stated; the public have been left to draw the inferences; the committee have not explicitly criminated any body; but they have determined, in several instances, who is not to blame. what is the situation of those who are implicated in the causes of the failure? every citizen knows that, in consequence of the issue of the expedition, clamors against the war department, in respect to indian affairs, have rung through the continent. should public officers, who have been placed in situations of such importance, be silent, and submit calmly to such imputations, they would be unworthy of public confidence, unworthy to breathe the vital air. they now apply for an opportunity to be heard in their own vindication. shall they be sent to a committee-room, and make their defence against the allegations brought forward to their disadvantage, which have been published to the world, in the hearing of perhaps ten or a dozen persons only? he hoped not--he thought justice to them and to the public required that they should be allowed to make their defence in the face of the world. will not precluding them look like a wish to smother all further inquiry into the matter? mr. baldwin was in favor of recommitting; he said it was the most eligible mode, and was consonant to the practice of the house. mr. madison remarked that it had been said a disposition was discovered to smother inquiry. in reply he observed that, if he wished to prevent a thorough investigation, he should be in favor of the whole subject being undertaken by the house; because, he observed, that if a select committee of a few members took seven weeks to form an incomplete report, it must appear evident that so large a body as this house could never get through the matter. he further observed, that the same reason existed for referring the residue of the evidence to a select committee as induced the measure in the first instance. mr. fitzsimons said he was at first in favor of a recommitment, but on further consideration he was convinced the house would be able to get through the subject in a shorter time than a select committee. he added several other reasons which induced him to be in favor of the house proceeding with the report. mr. gerry said it appeared to him that the only question seemed to be, whether the house or the select committee shall establish the facts. if these facts are established by the committee, would it give equal satisfaction as if they were established by the house? he conceived it would not; but, should the result be a conviction on the part of the house that some of the officers are culpable, will the house rest an impeachment on the report of the committee? he conceived the house ought to found their decisions on facts ascertained by themselves. it has been said there is no difference between the house and the committee. if this is the case, does it not imply a censure by the house on certain characters? he thought it did. it therefore becomes the house to discuss the report, that it may be determined on what footing it stands. if, in the case of a contested election, the house revolted from the idea of submitting their judgment to facts substantiated by a committee, the case before us is of unspeakably greater magnitude. for these, and several other reasons, he hoped the report would not be recommitted. mr. williamson was in favor of the motion for recommitting; he supported his opinion by the uniform practice of the house, which in every case where new evidence was adduced, always provided that the new evidence should be examined by the same committee, who had originally brought in the report. he said if this mode was departed from, we should find no committee would bring forward a state of facts in future. he thought it was not treating the committee with proper candor to decide on their report in its present situation. mr. sylvester observed, that the resolution of the house at the close of the last session, that they would take up the subject early in the present session, precluded a recommitment; he was therefore opposed to the motion. mr. boudinot was in favor of a recommitment; he said, if there is new evidence to be brought, the house ought to wait till that is received and reported at the clerk's table; and this he conceived ought to be done in the usual way, by a select committee; till the whole testimony is completed it appeared to him the house was not prepared to take one step in the matter. mr. madison replied to mr. gerry's allusion to the ease of the contested election. he inquired of him whether the house itself went into an investigation of facts in the first instance? he believed he would not say they did. with respect to the memorials, he inquired, whether, if they had been presented at the time of the investigation of the subject by the select committee, they would not have been referred to the committee? if they would then have been referred, the same reason exists for referring them to a select committee at the present time. mr. laurance was of opinion that a recommitment would tend to a saving of time; the committee will not be obliged to go over the same ground again that has already been explored; all they will be obliged to do is, to investigate the new testimony which will be adduced. he hoped, therefore, that the motion would prevail. mr. giles said, that the proceedings of the committee were public, and that the secretaries could have attended all the time, had they seen proper. they attended but once, and then appeared extremely anxious to get away to attend to their offices. the committee would have been extremely glad to have had those gentlemen present oftener, and to receive all the information they could give, and supposed they had done it. mr. gerry replied to mr. madison. he said, if gentlemen would recur to the proceedings of the house on the contested election, they will find that the house expressly reserved to itself the right of substantiating the facts, which should appear from an examination of the depositions, taken in conformity to the resolutions of the house; and here he adverted to the mode pointed out by the house in taking those depositions. the adverse party was to be summoned to attend to the taking them; but in this report it appears that _ex parte_ evidence has been admitted as the foundation on which some of the decisions have been made. mr. murray supported the motion for a recommitment. he observed that the matter, in its present state, was so incomplete that he could not see how the house could proceed upon it. one part of the evidence only is finished, and the report is made on that evidence. now, we are told new testimony is offered; let the whole be brought into view at once, and then the house will be in a situation to judge. mr. page was in favor of a further commitment of the subject; but whether to the committee who made the report, or to a new committee, he should not take upon him to say. with respect to the admission of any head of a department to the bar of this house, except in case of an impeachment, he would never consent to it. it would be a precedent of a most dangerous nature, tending to a destruction of all freedom of inquiry by committees. mr. findlay observed, that the committee wished that mr. hodgdon should have been present, but he did not make his appearance; the committee therefore proceeded on the testimony they had, and as there is now new evidence brought forward, he thought it was proper that the report should be recommitted. as one of the committee, he should have no objections to such alterations as might appear proper on further and more complete investigation of the matter. mr. steele called for the reading of a clause in the memorial of the secretary of war, which states that the committee had drawn conclusions from _ex parte_ evidence. this being read, mr. steele remarked on the want of candor towards the committee, which had been shown by some of the members in the course of their observations. he then adverted to the above clause respecting _ex parte_ evidence, and observed that, with respect to the secretary of war, it was not true that the committee had proceeded on _ex parte_ evidence; that officer, said he, was notified of the meetings of the committee; he attended those meetings; he furnished the committee with papers and documents, &c.; and further, he was requested to detain officers in town whose testimony was necessary in the matter, and that he complained of some of those officers being detained by the delays of the committee from the recruiting service. with respect to mr. hodgdon the same cannot be said, as he was not then in the country. mr. steele then concluded by some additional remarks on the indelicacy manifested by some gentlemen in their treatment of the committee, and observed that he did not apply it to himself personally, but as it respected the committee at large, he thought proper to express the contempt which he conceived it merited. mr. dayton replied to mr. steele. he repeated the substance of his original remarks on the report, and added, that in the course of the discussion he should attempt to show that the deductions made in several parts of the report were false. mr. d. added, that whatever the gentleman last speaking might say, as one of the committee who signed the report, he was certainly implicated in whatever censure it merited. the question for a recommitment was then agreed to, to . and it was accordingly _resolved_, that the committee of the whole house, to whom was committed the report of the committee appointed to inquire into the causes of the failure of the expedition under major general st. clair, be discharged from the consideration thereof; and that the said report, together with the documents relating thereto, including the letter of the secretary of war, and the memorial of samuel hodgdon, be recommitted to mr. fitzsimons, mr. giles, mr. steele, mr. clark, and mr. findlay. thursday, november . another member, to wit, theodore sedgwick, from massachusetts, appeared, and took his seat in the house. monday, november . another member, to wit: john francis mercer, from maryland, appeared, and took his seat in the house. _protection to american commerce._ mr. williamson moved that a committee be appointed to prepare and bring in a bill or bills for promoting commerce, by the increase of american seamen. in moving the above, mr. w. addressed the house as follows: measures have already been taken by congress for increasing the number of our shipping; but no effectual and _general_ measure has been adopted for increasing the number of native american seamen. every gentleman in my hearing knows that there are always a considerable number of foreigners employed on board american vessels; but none of us could have expected, and some of us may not have heard of the injury and insults to which our commerce has been exposed, from having british seamen on board our ships. a schooner called the david and george, belonging to portsmouth, in virginia, and commanded by captain goffigan, lately touched at sierra leone, on the coast of africa; she was navigated by eleven persons. three of that number who had been on shore, informed captain wickham who commanded an armed vessel, that they were british subjects. captain wickham went on board the american vessel and claimed the three seamen; he also claimed wages for them. captain goffigan refused to deliver the men, and declared with truth that nothing was due them. captain wickham took the men by force, and by the same regulation he went into the hold, and took as much of the cargo as he thought fit, under the cover of substitute for wages. captain goffigan complained of this violence and robbery to mr. clarkson, who is governor of the province. the governor replied, that he should have done the same thing, and that _he had orders from his superiors_ so to act in such cases. the ship illustrious president, belonging to virginia, commanded by captain butler, touched some time ago at madeira, on her passage to the east indies. the british frigate hyena, commanded by captain hargood, lay at that time in the road. seven of captain butler's sailors being british subjects, captain hargood sent to take them by force from on board the american ship, and he would have done so, had not the governor of the island, remembering what he owed to the honor of his nation and to every ship under his protection, interrupted his authority. the ship fame belonging to philadelphia, commanded by walter sims, on her way to the east indies, lately touched at table bay, at the cape of good hope. captain blith, who commanded a ship of twenty guns, then lay in the road. one of captain sims' sailors, a native of scotland, offered his service to captain blith, calling himself a british subject. that very man in philadelphia had taken the oath of allegiance to the united states; but the british claim was best, for captain blith's ship was strongest. he took the man, sent an officer on board the american ship, who took the liberty of opening the after hatch, searching the hold and looking out a chest and clothes. captain blith justified these acts of violence, by saying, that he had _printed instructions_ to take all who called themselves british subjects. these are a few out of the numberless cases in which our ships have been robbed of their seamen, and they are samples of the manner in which we shall be constantly treated, while we depend on foreigners to navigate our ships. if these cases had terminated in threats and abusive language, to which our flag is too much accustomed, it might have been questioned whether the nation of the offending party was to blame. when you are told by one officer and another, that he is instructed to distress our trade, we should, if possible, deprive them of the present excuse. is it not our business to inquire into the cause of this strange conduct? by a vitiated passion for british goods, we are universally clothed in the manufactures of that nation. our debts increase every year, and we labor to make her rich, while we are becoming poor. we pour our treasures into her lap more than any other nation under the sun. observe the rewards! i say nothing about her measures on our western frontier; but our trading ships are boarded and plundered at discretion by her ships of war; and yet, great britain, whose commerce we cherish, is the only nation that treats us in this manner. perhaps it is conjectured that americans are of that species of animals whose favor is increased by rough treatment. be this as it may, it is our duty to consider of the safest and surest mode of extending our commerce. after we have been told that an american vessel having sailors on board, who chance to have been born in the british dominion, is subject to be deprived of her hands, robbed of her property, and turned adrift without help, it can hardly be necessary to adduce other arguments in favor of native american seamen; but other strong and conclusive arguments in favor of the measure present themselves. the merchants' property in critical situations, or in distant or obscure parts of the world, is always most safe when a ship is navigated by men who uniformly strive to return to their native home, and whose hopes and happiness centre in that country to which their ship belongs. the crew of a french brig some weeks ago, murdered their captain and mate on our coast; that misfortune, in all probability, would not have happened, if the seamen had been natives of france. two of them only were of that kingdom. is it necessary to add, that a powerful body of seamen, at some future day, may save us from the vast expense and danger of a standing army? upon this single argument of native seamen we might rest the question. it needs neither support nor illustration. i shall, therefore, presume, that it is our duty as soon as possible, to provide for the daily operations of pride or injustice, by furnishing the merchant with seamen, of whom he cannot be robbed, except by open declaration of war--with seamen in whom he can trust--with men, who, actuated by those passions which are inseparable from the human breast, the pride of nation and the love of country, may serve him in every part of the world,--to furnish the nation with a safe and strong bulwark against foreign tyranny and invasion. i shall now take the liberty of moving that committees may be appointed to bring in bills for the purposes mentioned. mr. williamson, mr. laurance, mr. goodhue, mr. benjamin bourne, and mr. barnwell, were appointed to prepare and bring in the same. thursday, november . another member, to wit, john milledge, returned to serve in this house for the state of georgia in the room of anthony wayne, whose seat was declared vacant, appeared, produced his credentials, and took his seat in the house. wednesday, november . _warner mifflin's petition._ mr. steele called the attention of the house to the memorial and representation of warner mifflin on the subject of negro slavery. mr. s. said that after what had passed at new york on this subject, he had hoped the house would have heard no more of it; but, to his surprise, he found the subject was started anew, and had been introduced by a fanatic, who, not content with keeping his own conscience, undertook to become the keeper of the consciences of other men, and in a manner which he deemed not very decent, had intruded his opinions into this house. had an application been made to him to present such a petition, he thought he should have avoided a compliance with it. gentlemen in the northern states do not realize the mischievous consequences which have already resulted from measures of this kind, and if a stop were not put to such proceedings, the southern states would be compelled to apply to the general government for their interference. he concluded, by moving "that the paper purporting to be a petition from warner mifflin, be returned to him by the clerk of the house; and that the entry of said petition be expunged from the journal." mr. ames rose to explain his motives in presenting the petition. he said it was his opinion, which he had expressed to the house long ago, that this government could not, with propriety, take any steps in the matter referred to in this petition; but, on the general principle that every citizen has a right to petition the legislature, and to apply to any member to present his request to the house, he had handed it in. the petitioner is a citizen of delaware; and had the member from that state been in the house, he should not have thought himself obliged to have introduced it; but that gentleman being absent, the petitioner had a right to apply to a member from any other state. he had no idea of supporting the prayer of the petition, his mind having been long made up on the subject. he considered it as totally inexpedient to interfere with the subject, and had uniformly opposed the applications made at a former session of congress. mr. livermore did not consider the motion in order, the subject not being properly before the house; nor did he believe there was any disposition to bring it forward. mr. w. smith said he had seconded the motion, with a view of putting it out of the power of any member to call it up when persons might be absent who would find it their duty to oppose it. mr. s. said he admitted, in its full extent, the right of each citizen to petition for a redress of grievances, and the duty of the house to consider such petitions; but the paper in question is a mere rant and rhapsody of a meddling fanatic, interlarded with texts of scripture, and concluded with no specific prayer. he observed it was the general practice of legislative bodies for members presenting petitions to read them, in order to make known their objects, and to have them entered on the journal. in this particular instance the practice might be attended with danger. citizens of the southern states learning that papers of this kind meet with countenance here would be alarmed. the gentleman who presented this paper had not, on this occasion, shown his usual regard to southern interests. had he stated its dangerous object, the house would undoubtedly have refused its reception. after the proceedings at new york, when a similar application was made, his constituents had a right to expect that the subject would never be stirred again. he would assure the house, that while he continued a member of it, he should never fail to express his abhorrence against all such applications, as they could have none but a mischievous tendency. so far from being calculated to meliorate the condition of the race who were the object of them, they had a tendency to alienate their affections from their masters, and by exciting in them a spirit of restlessness, to render greater severity towards them necessary. he therefore earnestly called on the house to agree to the motion, and thereby convince this enthusiast, and others, that they can never meet countenance in the legislature of the union. the part of the motion directing the petition to be returned by the clerk was agreed to. the remainder was withdrawn by mr. steele, the mover. thursday, december . andrew gregg, from pennsylvania, appeared, and took his seat in the house. tuesday, december . a memorial of the officers, now residing in the state of new york, of the late american army, in behalf of themselves and their brethren, the soldiers of the said army, was presented to the house and read, praying that the depreciation which accrued on the certificates of debt granted them in reward for their military services during the late war, may be made good to them, or such other relief afforded them as the present circumstances of the united states will admit. also, a memorial of the pennsylvania line of the late army, to the same effect. _ordered_, that the said memorials do lie on the table. thursday, december . the speaker laid before the house a letter from the secretary of war, accompanying a statement of the present organization of the troops; also, returns of the commissioned officers, non-commissioned officers, and privates, in the service of the united states; which were read, and ordered to lie on the table. friday, december . a memorial of the officers and soldiers of the late new hampshire line of the continental army was presented to the house and read, praying that the depreciation which accrued on the certificates of debt granted them in reward for their military services during the late war may be made good to them, or such other relief afforded them as the present circumstances of the united states will admit; which was laid on the table. _reduction of the army._ mr. steele called up his resolution laid on the table some days ago, as follows: "_resolved_, that a committee be appointed to prepare and bring in a bill to reduce the military establishment of the united states to ---- regiments or corps, consisting each of ---- non-commissioned officers, privates and musicians, with such proportion of commissioned officers as the president may think proper to continue in service; and to repeal so much of an act, passed the fifth of march, one thousand seven hundred and ninety-two, entitled 'an act for making farther and more effectual provision for the protection of the frontiers of the united states,' as may contravene this intention.'" mr. steele, in proposing the above resolution, said, the situation of the frontiers, and the inefficiency of the measures adopted through the medium of the war department, to relieve them; the extreme burdens which those measures were heaping on the people, and the probability of their continuance, afforded ample scope for inquiry; and to sit silent on such an occasion, he thought, would be to partake of and support the errors from which those misfortunes may have arisen. the citizens of the united states, he said, were of a peaceable and patient disposition, and they have with cheerfulness acquiesced in the measures of the national legislature; but they were not become so tame as to submit to immense and fruitless expenses, and the disgrace of their military character, to answer any vain projects of folly and ambition, without a prospect of guaranteeing a peace. is it not evident, said he, that plans have been persevered in without regard to common sense, by an unnecessary increase of our army, until the indignation of the whole continent has been roused up against it? to elucidate this position, mr. s. recited the expenses, charges, and increase of the war department from its first establishment under the present government, to its present enormous demands, which for the year , are no less, agreeably to the estimate furnished by the secretary of the treasury, than $ , , ;[ ] more than double the sum necessary for the support of all the other branches of the national government. the better to illustrate this subject of the indian war, he entered into comparative statements of the years , ' , ' , and ' ; and, animadverting on the different items of calculation, he asserted, in strong terms, that they exceeded every thing that the history of the indian wars afforded for twenty years back; he wished any gentleman to enter into an investigation and comparison of the alarming increase of the expenses of the department, and to take a retrospect of the subject for twenty years back; and he was certain neither the secretary of war nor any other person could account rationally for the occasion of such an establishment. there was no precedent to be found in any of the states; not one of them has a war department; neither was it contemplated in the constitution of the united states. yet it has, in the short space of three or four years, been imposing on the country burdens which the people have at length expressed their abhorrence of; it has been increased from $ , in , to the extravagant demand now required, of $ , , and $ , contingencies for the support of . this is so alarming an increase, that it calls loudly for reformation, or the entire abolition of the department, and that another system shall be adopted for the protection of the frontiers. armies of regulars will never afford protection; they have never answered any good purpose against the indians from the time of braddock's defeat down to that of major general st. clair, although this last-mentioned unfortunate expedition cost the united states an immense sum of money, and the lives of a great number of valuable officers and citizens. history and the experience of ages have proved this fact, that unwieldy armies will never be able to fight the savages in the wilderness; indeed, the secretary of war confesses the fact in one of his reports, which mr. s. read, wherein the secretary accounts for the ill success of the plans, by observing, "that it was owing to the extreme activity of the enemy and our ignorance of the wilderness through which our troops had to march." but the secretary might have also added, our entire ignorance of the mode of carrying on the war. here mr. s. took occasion to observe, that this alarmingly expensive and useless department had crept upon the country entirely from our fondness for taking up money on loans; for had it not been that the money was thus obtained with a sort of facility that was not directly felt by the people, they never would have consented to be directly taxed to support the parade of so unnecessary an establishment. this is my reason for being an enemy to loans; they deceive citizens, and lull them for a time, in order to levy double contributions afterwards. but it may be demanded, how are the frontiers to be protected, if the army was disbanded? in reply to this mr. s. said he wished that the former two regiments might be retained to garrison the forts, and that a militia near the scene of action should be raised, who would be able to make five expeditions against the savages in a year, if necessary, instead of one solitary fruitless attempt, which, upon an average, is as much as a regular army can do; and sometimes not so much, for it does not appear that any expedition took place during the last twelve months: moreover, it is not so easy for the indians to discover the plans and approaches of militia, as they do the slow motions of an unwieldy army, dragging their heavy artillery through the woods. the fact is, that the indians have the best intelligence and know every motion of the army, and they can even calculate the time and place to meet them, and the numbers of their tribes that will be necessary to receive such a force; they will always be prepared when a regular army are to march against them. but if the business be left to a militia of the frontier inhabitants, who know the country, and have their property at stake, it would not cost the government one-fourth part of the expense to give a complete protection, and to repel all the depredations of the savages, if that be our intention. if it be the protection and happiness of our brethren on the frontiers--if we are serious to check the progress of expense, the motion which i have brought forward will be the most effectual means, and to establish a proper militia system. on this motion, therefore, will depend the question, whether we are to continue a fruitless warfare in the present mode for seven or ten years, or shall we adopt a better system, which will not cost one-fourth of the expense, and which would completely check the indians; nay, it would entirely exterminate them, if that was thought to be necessary. in order to bring the matter to a point, mr. s. suggested, that it would be proper to disband all the troops except the two former regiments of two thousand one hundred and twenty-eight men, which would be more than sufficient to garrison all the fourteen posts on the frontier. these, with a militia, under proper regulations, and the officers appointed by the president, would be found a more certain protection. the garrisons are at fayette, hamilton, steuben, knox, tammany, telfair, harmar, franklin, jefferson, st. clair, marietta, massachusetts, matthews, and knoxville. most of these are commanded by captains, except two that are commanded by majors: now, reducing the establishment to two thousand one hundred and eighteen non-commissioned and privates, and average them amongst the garrisons, it will give one hundred and fifty-two men for each; the sum saved by this reduction would be six hundred and twenty-four thousand six hundred and seven dollars--the difference between the appropriations for and those required for . with regard to the expense that would be incurred from militia expeditions, none of them would cost above thirty thousand dollars; and four or five of those, if made in a year, would have ten times the success and effect that could be expected from the present system. had the militia plan been adopted, we should not at this day hear such murmurs from our constituents, nor would the people be saddled with heavy taxes and imposts; but, on the contrary, the money that has been actually wasted would have sunk a considerable part of our national debt. but by the system of warfare lately adopted of dragging heavy cannon and camps into a wilderness, of which we have confessed our ignorance, if it be allowed any longer, our treasury will be exhausted, and the public revenues which the secretary of the treasury reported as affording a prospect of income beyond the permanent wants of government, will not all together be sufficient for our war establishment; we must fly to loans, and pursue a system of ruin and distress to the country. under these impressions, said mr. s., i have introduced the proposition now before the house; and i entreat gentlemen to think seriously of it, for thereon, in a high degree, will depend the real protection of our frontier, the safety of our garrisons, and the ultimate ease, happiness, and tranquillity of the continent. mr. hartley, although he did not wish to advocate the continuance of a standing army, yet he was averse to disbanding the troops at present, while it is known that a negotiation for a peace is going forward, and may not perhaps be brought to a decision before the spring. it is a well-known maxim in politics, that a peace can always be easiest obtained by a nation which is prepared for war. he noticed the great prudence and economy of the president in forming the army into a legion; and he differed in opinion with mr. steele respecting the insufficiency of regular troops. no instance could be quoted where regulars had engaged the indians without beating them. mr. parker said he had always abhorred the idea of keeping up standing armies in this country; and he believed he could from experience demonstrate that it was an unwise measure at the commencement of the present government; for it answered no better purpose than throwing out a hint to the british and spanish governments, on our northern and southern frontiers, to increase their forces, and even to administer countenance and support to the indians, which they never would have thought of doing, but for our vain attempt at military parade. he mentioned a letter which had been written by lord dorchester to the indians, informing them "that prince edward had arrived with a number of chosen warriors to protect them," meaning against the united states. thus, said mr. p., we have been warring with our finances for the last three years, by keeping up an army in imitation of european plans, which are formed in countries altogether unanalogous to america in every possible view. the consequences have been unsuccessful, and produced military disgraces, by sending into the field a collection of beings, collected from stews and brothels and from the most unprincipled of their species, to fight against indians well supported on both sides, and fighting, as they do, for their property, their hunting ground, their wives, and children, instead of calling forth the militia, the natural strength of the country. but the present plan has involved us in such difficulties that we are not now able to provide for the payment of our debts, without the medium of loans; nay, we are now called on for a small sum of two hundred thousand dollars at the bank, which would have been easily paid out of the surplus in the treasury, were it not that our finances have been exhausted by those ill-judged expeditions under general harmer and general st. clair. he mentioned the naked, starved appearance of the men who were sent out--with shoes that would not last three days, clothes that did not half cover their miserable bodies from the inclemency of the weather, and food sometimes not fit for dogs. he could mention the particulars, if required, of some other very abominable abuses, but refrained from it at present. he concluded by expressing the same opinion of militia that mr. s. had done; and, with regard to the starved soldiery who had appeared in the woods, they were despised so much by the indians, that they called them coatmen, and shot them down like wild turkeys. mr. fitzsimons was apprehensive that it would be a dangerous experiment, so suddenly to alter the system of defence already adopted. he remarked, that when mr. steele had stated the war department to have cost the united states three million five hundred and forty thousand dollars, he had committed a great mistake, for there was one million one hundred and seventy-one thousand dollars of that sum not yet granted. [mr. steele explained, that he had gone by the estimates for the appropriations proposed, &c.] mr. fitzsimons did not wish to advocate a standing army; and if any better mode of defence for the frontiers could be digested, he would be amongst the foremost who would agree to it. mr. white could not entirely approve of the motion for striking out, unless a proper substitute for defence was fairly brought forward. mr. williamson said, it was not disbanding an army of men, but the disbanding an army of paper, that he conceived to be the object of the motion, and it should have his support. he mentioned an affair between ninety militia and two hundred and forty indians, wherein the militia _received_ them much better than any of the regulars could boast of having done! mr. smith (of south carolina) reverted to a clause in the law which empowers the president either to raise those three additional regiments, or to forbear to raise them, or discharge them, &c., provided he thought it consistent with the safety of the country. from this mr. s. said it was evident there was a sort of indelicacy in the motion, as it implies a doubt that the president might fail in this instance, or vary from his usual line of prudence. mr. dayton said, he would vote for referring the motion to a committee of the whole, although he disapproved of it. he should not have risen had he not heard from the two north carolina members the strangest perversion of argument and the most extraordinary reasoning. the gentleman who has brought forward the motion, said mr. d., has decried every idea of energy and efficacy in regular disciplined troops considering them not only inefficient, but contemptible, when employed against indians; and, to confirm this assertion, he has instanced the expedition under general st. clair, when it is well known that there were not, in fact, two companies of regular disciplined infantry among them. the other gentleman (mr. williamson) has extravagantly commended the back-country militia, and extolled them for their efficiency and success in indian warfare; and instances the affair of a rencontre between major adair, with ninety militia, against two hundred and forty indians. in reply to this, mr. d. felt himself compelled to remark, that that affair did not appear so successful in his mind; for those very militia were unquestionably surprised and beaten, inasmuch as they were driven into a corner, until the indians captured all their horses and other property in their camp; and what is still more disgraceful, one half of the major's party deserted him at the commencement of the action, and secured themselves within their garrison. whilst he was up, mr. d. would further observe on the extraordinary speech of the mover of the question, that it was such as no person could have ever expected to hear within the walls of that house. it seemed to be calculated to prejudice the minds of the people against the whole administration; and it appeared still the more extraordinary that such a speech should come from a gentleman who so lately expressed the nicest delicacy in matters of order and decency; for, in this instance, he has committed the greatest breach of decorum and propriety, by a direct censure of the secretary of war, the president, and both houses of the legislature. [here several members called mr. dayton to order.] he proceeded, however, and appealed to the house, whether he had not drawn a just picture of the expressions of the gentleman from north carolina. the very calculations which he has so laboriously produced have been questioned by other members. in regard to the surprise expressed by the gentleman at the increase of the war department from to ' and ' , it was not so strange that five thousand men would require greater supplies than two thousand. yet the gentleman is surprised at the increase of expense, and seems to imply that abuses have been committed; but if an increase of expense for protecting the frontiers has accrued, the censure ought to fall on the legislature for directing it by their laws, and not upon the executive, who are merely the instruments for carrying them into effect. upon the whole, mr. d., however he might himself be in favor of a reduction of the army, if it stood simply on its own merits, yet, as it now struck him, it being connected with some recent circumstances, he would therefore oppose it as tending only to embarrass the executive in their attempts towards a pacification. moreover, he said he knew the temper of indians so well, by having lived amongst them, that there was not a nation on earth more extravagant in their demands, when they saw the force against them was lessening. so that what is intended by the motion for reduction at present, as economical, may turn out to be, in the end, the most expensive of any. mr. wadsworth was also against the motion; and mr. ames closed the debate by a few observations on the necessity of committing to a committee of the whole, as there would be no other way of answering the industrious calculations of the mover. the question on committal was carried, and made the order of the day for next wednesday. wednesday, january . _military establishment._ the house resolved itself into a committee of the whole house on the motion of the th ultimo, for reducing the military establishment of the united states. mr. wadsworth rose and observed, that he had pledged himself to the house last friday to show that the calculations of the gentleman from north carolina were not true; and, if true, that the inferences drawn from them were not correct. there was a material difference (he said) between the appropriations quoted by the gentleman and those which he would now read to the house. here he read a statement which he had prepared, from which it would appear that mr. steele had overrated the contingencies, hospitals, quartermasters, forage, cavalry, ordnance, pay, and subsistence, each of them. the total difference between mr. steele's and mr. wadsworth's calculations, from this representation, was $ , in the year . in like manner, mr. w. read his calculations for . on comparing which with those of mr. steele, he said there was a difference in the total of $ , ; and in the total of , he showed a difference of $ , . he also particularly objected to mr. steele's statements of the ordnance expense for , which had been called $ , ; but that sum, although it comes under the head of ordnance in the estimate, is not altogether appropriated for the purchase of cannon; the whole amount of the expense of cannon, he said, had been very trifling--about $ or $ . having proceeded thus far in attempting to controvert the calculations of the gentleman from north carolina, mr. w. said, it would indeed have been an alarming thing to the united states, had they been founded in reality. but the gentleman had not confined himself to misstatements--he had gone further; for he had "lamented the necessity of quoting even truths from that office"--the war office. here mr. w. stated that the quotation which mr. steele had made from a report of the secretary of war had not been correctly quoted. after mr. w. had thus represented mr. steele's calculations as erroneous, and his quotations as misstated, he said that the house ought to beware of not being led astray by them. he next observed, that the gentleman had laid a great deal of blame of the present hostilities between the united states and the indians, and the expense attending them, to the war department. but mr. w. conceived that there were other causes to be assigned for the indian war. there had never been a day, from the first settlement of america to the present moment, without our being at war with the indians, in one place or another. the history of the country, the resolves of the old congress, every book published by congress, show this to have been the case. [here he read some quotations from the resolves of , to show the appropriations for defraying the expenses of indian wars.] he wished the house to take a retrospect of the subject, from the beginning of those troubles down to the late application for assistance from the national government by the governor of georgia. although they have three thousand men on the frontier of that state, yet it is not found sufficient, and the indians have driven them in. indeed, there has been a time when the town of savannah has been obliged to keep a guard. it was not his intention to introduce commendations of the officer at the head of the war department, but he thought it proper to observe, that he is not to be blamed on account of the expenses referred to. he is no more than an instrument acting under the supreme executive. it is the president of the united states who has found it necessary and proper to recommend the establishment of a military force. it is, therefore, not the secretary's, it is the president's war; and to assert that the secretary has had any undue influence with the legislature, would be altogether false; for, on the contrary, his reports have been treated with disrespect in this house. was not his report at new york ridiculed, and called "preaching," &c., because it was in favor of peace, and spoke with great humanity respecting the hardships often inflicted by the whites on the indians? indeed, the secretary of war has been uniform in his endeavors to bring about a durable peace. this, however desirable an object, has been found hitherto impracticable, and the indians have lately carried their depredations to so great a length that the president has judged it necessary to repel them by force. they have murdered in cold blood our ambassadors of peace, whilst holding a flag of truce in one hand and reaching the other out in friendship to the indians. perhaps they may have been excited to this degree of barbarity by many causes. it is hard to determine which are the greatest aggressors--the settlers on the frontiers or the indians. the murder of the moravian indians, the proclamation of congress against our own people, all show that the indians have ground for complaint. here mr. w. recapitulated the affairs of the banditti at fort st. vincennes; the representations of judge innis, of kentucky, from to , respecting the people there who could not be restrained from the commission of crimes against the peace of the country. from these causes and the common fatality of the times, our attempts towards peace have proved abortive, and the war has been prolonged, but the secretary is entirely innocent of promoting it. in regard to the other arguments of the gentleman (mr. steele) respecting the militia, that they would afford either a cheaper or better defence for the frontiers, he had his doubts. mr. w. now went over the whole history of the frontier wars; a line of posts was once established and garrisoned by militia, yet they could not prevent the indians from coming within sixty miles of winchester, and murdering, scalping and plundering the women and children. after the peace of , the indians drove in the militia, and advanced as far as cumberland and carlisle, in the state of pennsylvania. but colonel boquet, with the remains of two regiments of regular troops, who had just before arrived from the west indies, marched against the savages, and hired pack-horses to carry some of his sick men. with these regulars, colonel boquet fought them and drove them with the bayonet from one end of the country to the other. the battle began at one o'clock the first day and lasted until night, and was renewed the next morning with superior force by the indians; yet they were entirely discomfited. this news went to fort pitt and virginia, and revived the spirits of the country. virginia raised more troops--and colonel boquet dictated a peace to the savages. these instances furnished sufficient arguments to show the superiority of regular troops over militia. but he could mention many others, viz: general hartman, with eight hundred chosen men, giving a total defeat to the indians; colonel willet's attack and defeat of them; and general sullivan's affair in south carolina. as to the defeat of harmer and st. clair, their men ought not to be reckoned regular troops. they were raw recruits, undisciplined, &c. but even they stood better than the militia; for the militia ran away, and those who remained to fight the savages fell, to their honor be it spoken, whilst the militia, who were the advanced guard, ran and threw away their guns, nay, their coats. upon the whole, the balance of argument, mr. w. thought, must appear in favor of regular troops. he further took occasion to animadvert on what mr. williamson had said, when that gentleman expressed himself so strongly in favor of the militia under major adair. that officer, mr. w. observed, had been a continental officer, and from his own words, it appeared that he had no very great opinion of the militia, for they had fled to the garrison; and the indians obtained their ends, notwithstanding the _reception_ given by major adair. theirs was the triumph, and when they retired, it seems to have been not so much a matter of necessity, as a thing of choice, on their part. the loss of horses, one hundred, perhaps, and the expense of this affair, amounted to a much greater sum than any regular troops would have cost. the party under major adair, supposing it to consist of a hundred men, cost one hundred dollars a day, reckoning the attendant circumstances--and considering it, as mr. w. did, a complete defeat--for there are no circumstances to prove that it was otherwise--the militia having deserted him and left the few regulars he had exposed to the whole of the danger. mr. w. did not stop here in his details of military disgraces--he recounted many other cases. he mentioned the grant's expedition against the cherokees, &c. and still he drew a balance against the successes of the militia; for, he said, they had constantly been defeated, and the country left exposed to the depredations of the enemy. much has been said, observed mr. w., of clark and sevier's successes. they, indeed, afford an exception to the cases above mentioned; but how far were they successful? the immense expense of men and money, and the interruption given to the agriculture of the country by calling away from their business so many industrious citizens, is a thing beyond the power of calculation; for my part, said he, i do not know figures enough to count it up. for the truth of this position, and for the enormous waste and expense incurred by militia, he appealed to one of the members (col. parker) on the other side of the house, who had experience in the matter, whether it was not absolutely impossible either to bring militia under a proper discipline, or prevent their enormous waste. a whole brigade of regular troops would not cost so much as one regiment of militia to a country. the militia of kentucky have cost more blood and wealth than all the american war; when the circumstances are considered of calling out men from the tillage of the field, &c. it is enormous the number of lives, and the aggregate loss is countless. the causes of these things are, want of order and discipline, &c. and those causes have produced _a universal reprobation of the war establishment_; but all those who condemn are not well acquainted with those causes; they judge from hearing only one-half of the truth in our newspapers. it is supposed a peace can be easily effected, but i know of no peace that has not been effected by force; for, although promises have been made and peace often treated for with the indians, yet they have as constantly broken those promises. this is a good reason for keeping up the present force of the united states. we are now able to meet the indians and demand a safe peace. but the gentleman from north carolina calls our establishment a mere military parade, which, it is said by another gentleman, (mr. parker,) will only tend to rouse the spaniards and the british, &c. he went on quoting the conduct of the indians and their threatening manner, when they told you, "go to your own side of the ohio," &c. what language do they now hold out? but i am not at liberty, said mr. w., to mention it, as it was confidentially communicated to this house, and read with our doors shut. however, it is well known to all the members present the insolence of that language. for my part, i have little hopes of a peace from any promises of the indians; and although a negotiation is said to be upon the carpet, i can never depend upon the promises of savages who have so often broken them. in speaking of the recruits that have been lately raised for the regular army, mr. w. opposed his opinion to that of mr. parker, who mentioned them in such contemptible terms as having been collected from the stews and brothels of the cities, &c. for his part, mr. w. had often seen them, and he believed they were equal, if not superior in spirit and appearance, to most of the soldiery during the british war, and better than the soldiery were at the close of the war, with some exceptions, such as respects the men who cost £ each. before he could quit the subject, he begged leave to mention another instance of the efficacy of regular troops; it was the affair of general wayne's surprise, when the light-horse dismounted, and cut the militia to pieces, and the infantry drove them off at the point of the bayonet. he ridiculed the idea of calling out a militia upon every emergency. where are they to be formed? in pennsylvania it would be attended with a tenfold loss, if they must quit their daily labor. he would admit that the character of the kentucky militia had been brave and intrepid; but there was still occasion for a new war, and no ultimate protection afforded to the frontier. the governor of north carolina had complained of a friendly indian being murdered, &c. on the whole, he thought it improper to take militia to fight indian warriors. he admitted that some abuses might have been practised in the regular army, but they were as little, if not less, than in any other army he could remember. he insisted that the scheme of the department of war was not a scheme of the secretary, but a scheme of the united states from the president down to the members of the legislature, and the meanest of their constituents. he took a retrospect of the great skill of the president after braddock's defeat. the president must be the best judge of the disposition of indians, and the best way of treating with them; he approves the scheme of the present war, and shall we imprudently attempt to change his plan, by sending out a few men to be knocked on the head by the indians, as those _coat_ men were? so called by the gentleman from virginia, (mr. parker,) but instead of coat men, he, mr. w. thought they might also have been called petty-coat men, &c. he finished his observations by again remarking, that the calculations of the gentleman (mr. steele) who had introduced the motion for reducing the present war establishments were founded in error and ought not to have any weight with the house. mr. steele.--when the house have deliberated upon the merits of the gentleman's arguments, and the truth of my statements; and when they have decided the question, i will submit to their decision; but, in the mean time, i insist that my calculations are founded on the reports of the secretary and the public printed documents on the table, of the appropriations and laws, &c. i wish the gentleman (mr. wadsworth) had told us where he has found those papers, from which he attempts to controvert such authentic documents as i have quoted. i wish he had made the house understand them; for my part they appear unintelligible. mr. wadsworth said it was from the laws. mr. steele explained some things in his former statements; and in reply to some suggestions that might be thrown out with respect to his indelicate mode of attacking the secretary of war, or the president, he defied any member to show that he had acted beyond the line of his duty, or that he had ever shown any disrespect towards the president. on the contrary, he was of opinion that that gentleman's character would for ever be secured against all the possible attacks of ingratitude or malice, &c. he also used some other very handsome expressions on this occasion. but whilst he was ready to declare these things, and to prove that he had no personal intentions of injuring the secretary of war, yet, he would not suffer himself to be deprived of his privilege, whilst he had the honor of a seat in that house; and, in the present instance, he thought it his duty to hold up his opposition against the rapid increase of expenses in all the departments of government, which he said were grown to an enormous burden upon the people, and unwarranted by the constitution; that they therefore ought to be immediately checked. he hoped, for the future, gentlemen would confine their arguments to measures, and not apply them to persons. he sat down, for the present, with this proviso: that he would reserve to himself the right of answering to what might be advanced against his proposition, which he could prove to be salutary; and that the present system is fundamentally wrong. mr. hartley was against adopting the motion under the present circumstances of the country, and he entered into a particular investigation of the merits of the question. when the last law for the more effectual protection of the frontiers passed, the subject now under consideration was very fully and ably discussed, and the gentlemen who were averse to the augmentation, had several alterations made to satisfy them. instead of the president's being obliged to raise the whole of the three regiments, he was to exercise his discretion either to make the augmentation complete, or raise a part, and he had authority to disband them after being raised. the th section of that law is thus expressed: "it shall be lawful for the president of the united states to forbear to raise, or to disband after they shall be raised, the whole or any part of the said three additional regiments, in case events shall in his judgment render his so doing consistent with the public safety." we should therefore consider whether circumstances have so materially changed since that time as to render it proper that the legislature should interfere, repeal the powers given to the president, and discharge the three regiments. this necessarily leads us first to view the situation of our finances, and the state of the frontiers at and immediately before the time of passing the law. the extent of our revenue was not as well known then as at present, and every good man deprecated the misfortune which obliged him to increase the taxes. the war was a disagreeable one, but necessary, if peace could not otherwise be obtained. the legislature considered the expense, and were of opinion that we had means and abilities to defray the same. many murders and ravages had been committed by the savages on the frontiers. one army had suffered in the year , and nearly a whole army cut off on the th of november, . and we had every reason to suppose that the indians would act in great force against us. our finances are still respectable. it is true, i should be happy if we could apply the money towards discharging the national debt already contracted, but the unfortunate situation of our frontiers prevent it. war, though an evil, may (from the present disposition of the world) be sometimes necessary, when nations are unreasonable and justice cannot be otherwise obtained. hostilities have lately been committed on our troops commanded by major adair, and several of the southern tribes show themselves inimical, and we have no absolute assurances that we shall have peace in the spring. the agreement by some tribes to a suspension of hostilities, was only convenient to them as it protected their families for the winter. the great object of the additional armament was to obtain peace: this is not yet effected. may we promise ourselves more success in negotiation by laying down our arms, or by retaining them? history is in favor of the latter. indeed, i hold it as a maxim, that the nation which is prepared for war can most easily obtain peace. for my own part, i can discover no existing causes for altering the system established by the act to which i have before referred. the expense has been made a very serious objection. it ought to have weight; but where measures have been proper, america has not regarded it. she has freely expended her treasure to support her rights. we are bound in justice and honor to protect our fellow-citizens on the frontiers; we demand from them an excise. they require from the general government protection. i am for making peace with all the indians upon reasonable terms; but any country which has been fairly purchased from the indians, they should not be permitted to repossess or hold by conquest. if an offensive war be necessary says the gentleman from north carolina, regular troops are not the most proper to carry it on. they are more expensive, and unfit to meet the savages of the wilderness. as to the expense, i have partly answered before. but if the gentleman is to have five expeditions in one year, i believe he would find that his calculations are not correct: a misfortune to either detachments or party would bear very hard upon the district they came from; the partial loss of regulars would not be equally felt, very few of them having families. i have a high opinion of the backwoods riflemen, but i am confident that we cannot certainly rely upon their turning out as often as they might be wanted; we could not rely on such uncertainty; and yet this is offered as a favorite project. if you cannot rely upon them, you may say that the ordinary militia can be drafted. you would find them unfit for such a service; they would in general be composed of substitutes, inexperienced and undisciplined, and it would be unfair to take them all from the frontiers, and some of the states, or at least one, have no militia laws. i am for retaining the regular troops. the president has practised economy in organizing the troops voted for, and i am told they have made considerable progress in discipline; they are formed into legionary corps, composed of horse, riflemen, light-infantry, and battalion-men. the three former will be fit for active service in the field, the latter for the common duties in the camp or garrison. i will allow volunteers and militia their full credit; but i do not think the regular troops merit the disparagement attempted. volunteer corps have not been free from misfortunes. colonel crawford, at the head of five hundred volunteers from virginia and pennsylvania, was defeated in the western country, and he was burnt at the stake. general braddock, it is said, was obstinate, and his european troops were undisciplined for such a service. the army under general st. clair was lost, because the men were undisciplined and unfitted for that service. i can mention several instances where regular troops have successfully penetrated the indian country, among warlike tribes, with success: colonel montgomery, into the cherokees; colonel armstrong to the kittaning; colonel boquet's campaign of , and . three detachments of the american army, in the year , (one under the command of general broadhead, one under lieutenant colonel butler, and the last commanded by your humble servant,) penetrated the country possessed by the six nations. neither of the detachments was large, and the last had to contend against superior numbers. in general sullivan's campaign, the year following, his vanguard beat an equal, if not a superior number of indians. i might mention the roman legions; they almost constantly were successful against those they called barbarians, until their enemies adopted the roman discipline. i have a high opinion of the personal bravery and prowess of an indian, but i do deny that they can act to the best advantage in large bodies. they have not an experience of that kind; disciplined troops would have the advantage. i reprobate the idea of a standing army, which might endanger the liberty of this country; but i consider the troops contemplated in the act of congress to be absolutely necessary, until peace shall be obtained, and therefore shall vote against a reduction. every step has been taken, and i dare say will be taken, by the president, to procure a peace without bloodshed. our messengers of peace have, in some places, been murdered, and yet he has sent messengers to others. mr. clark.--one would suppose from the style of the debate, that we were going to abandon the frontiers, the safety of the country, &c., and to disband the whole of the army: for, the arguments of those gentlemen who are opposed to the motion seem to be calculated to mislead the house in that way, and to prove that the question under consideration is for reducing the whole of the troops now existing. but this is so far from being the true state of the matter, that it is not even contemplated to disband a single man of them; it only goes to the prevention of raising any more troops, which perhaps would be the safest policy under the present circumstances and temper of the united states. there are about three thousand three hundred effective men already raised, who are sufficient to garrison the forts on the frontier, agreeably to the gentleman's statement who introduced the motion; and, indeed, it seems as if they were fully competent, if we believe the report that the whole of the indian force, at the time of meeting general st. clair, and when they exerted themselves to the utmost, was but one thousand two hundred warriors. mr. c. made some further remarks on the sentiments which had been expressed by the gentleman last up; and, in speaking of the discretionary powers vested in the president, he was of opinion that the situation of the chief magistrate in this respect was extremely delicate: for, supposing he might be inclined to stop the recruiting service, and reduce the war establishment; and supposing the frontiers to be again harassed, it might be charged to him for not having kept up the legal complement of men. under this impression, mr. c. wished that some way could be adopted of conveying to the president the sentiments of the legislature on this subject, without the tedious form of a law. mr. parker.--the gentleman from pennsylvania (mr. hartley) has been reading a section of the law, to inform us of the discretionary powers vested in the president, which we have heard from other members before he rose, and which we all knew as well as himself. i am sorry to hear gentlemen, when they have no other resource of argument left, so often resorting to the name of the president, to carry their measures; and yet, in the present instance, i much doubt whether those sentiments are avowed by the president, which have been laid to his charge in the course of this debate: however, if they were really so, this is not a sufficient reason to silence me, or to prevent me from delivering my own sentiments, and those of my constituents who sent me here to do so. he vindicated the character of the militia, in opposition to the disgraceful picture which mr. wadsworth had painted of this respectable class of citizens, whom he (mr. p.) insisted were always more spirited soldiery, and fitter for fighting the indians than the regulars, although they did not always move at the sound of a trumpet or beat of a drum, which were necessary to rouse the attention of heart-broken, mercenary troops, who seldom act but from force, or fear of the whipping-post. militia were not so well acquainted with military show, or the display of columns; neither did the president of the united states, when acting major of a regiment little better than militia, find that the doctrine of tactics was of any great service to him. mr. p. further mentioned, that the forerunners of general burgoyne's army were taken by general stark's militia near bennington; and the capture of the whole of burgoyne's army was chiefly brought about by militia, as general lincoln had very few regular troops at the time of his surrender. in short, the militia bore a conspicuous share of almost every engagement during the war. at trenton, the men who took the hessians were little other than militia, as they had been raised but a short time before. mr. p. could vouch for them, as he was a witness of their activity and bravery. another instance offered of their success at charleston, after it was taken by the british and the regulars drove off; the militia kept possession of the country and supported themselves. he also remembered having been called away from the regular army in the north to take the command of some militia in virginia, who supported themselves for twelve months without either pay or provisions from the united states; and yet they were never once defeated or disgraced, neither did they leave the country unprotected and exposed; and all they received for their services was certificates which necessity obliged them to alienate at three shillings in the pound to persons who are now in possession of them drawing an annual interest of nearly as much, and who never perhaps had a good wish toward the revolution. he next quoted the militia under colonel mercer, at yorktown, who were successful in a skirmish with the enemy under tarleton. these and several other arguments in favor of the militia, whom he still maintained to be the best security of a country, were used by mr. p. he would not advocate the raising them from all parts of the united states, but only in such places as the safety of the frontiers required it most: they were not, to be sure, accustomed to the display of the column, &c., but they knew how to take the indians in a proper way through the woods. it gave him pain to hear the character of the militia so much traduced, and it also was a painful reflection to think of the two disgraceful defeats of our armies under generals harmar and st. clair; indeed, it would have a strange appearance to the world, to think that this country is inhabited by the same men who lived in . he repeated what he had before asserted, that most of the present regulars were collected from the stews and brothels of the cities, and had none of the spirit or principles of the honest yeomanry, who composed the militia during former wars, when every man turned out impressed with a good cause. it was not, he said, his desire to criminate any individual in office, although he would maintain his right of expressing his opinion on that floor, so long as he held a seat in the house. but with regard to myself, said he, i am not disposed to pour incense into any man's cup; i respect the president as much as any man, and think him incapable of doing wrong, at least on those principles that foreign despots are supposed to do no wrong, because the people are their subjects, and dare not to say their sovereigns do wrong, and dare not contradict this tyrannic maxim. if the house, or if the president, have committed an error, they ought to correct it; for my part, i conceived the whole of the plan wrong from the beginning. from the present appearances, he was convinced we should get no peace with the indians, unless it were dictated by the british agents in canada; for it was clear, as long as they can do us the injustice to withhold territory from us, we can have little reason to expect their aid or friendship in bringing about a peace which is so desirable. he hoped to live to see the day that america will be able to show herself superior to her enemies, and chastise them: at present, it would be improper to engage in any war, if it could be avoided. in addition to the foregoing reasons offered by mr. p. for being opposed to a war establishment, he also remarked, that it was from a desire to see the public debt redeemed without resorting to new _taxes_; for if _they_ once should get fixed _there_, (pointing up to the senate chamber,) we should never be able to withdraw them, whether they were necessary or not. he concluded by a hearty wish that the motion made by his friend from north carolina might succeed. mr. boudinot was against the motion, as he thought any immediate alteration of the present system would be attended with dangerous consequences, under the present circumstances of the united states. he did not think it would be justifiable to alter it. it would show an instability in our public measures, especially at this moment, when we have done every thing to bring about a peace with the hostile indians: and, when it is just advancing to the season for effecting it--when it is at the eve of completion--shall we rashly counteract the whole? and after having brought the enemy, who were so much elated on account of their recent success, to a proper sense of our power and force to impose an honorable peace, would it not be extremely imprudent to lessen our own consequence before we have accomplished the object? the indians would, in this case, most indubitably raise their demands in proportion to what they supposed to be our weakness. mr. b. added several other observations. mr. willis had always been strongly impressed with a dislike for standing armies; but when he considered the situation of the frontiers, and particularly of the state of georgia, he must give his vote against the motion. neither did he think two regiments by any means a sufficient force, even to garrison the posts. on motion, the committee rose and reported progress. the speaker laid before the house a letter from the secretary of state, enclosing a list of the several persons employed in his office, with the salary allowed to each, pursuant to the resolution of this house of the thirty-first ultimo; which was read, and ordered to lie on the table. the house resolved itself into a committee of the whole house on the bill making compensation to the widows and orphans of certain persons who were killed by indians, under the sanction of flags of truce, and, after some time spent therein, the committee rose and reported progress. thursday, january . mr. william smith, from the committee appointed, presented a bill to regulate the claims to invalid pensions: which was received, and read twice, and committed. the house again resolved itself into a committee of the whole on the bill to make compensation to the widows and orphans of certain persons who were killed by indians, under the sanction of flags of truce; and, after some time spent therein, the chairman reported that the committee had again had the said bill under consideration, and made several amendments thereto. _ordered_, that the said bill, with the amendments, do lie on the table. the speaker laid before the house a letter from the secretary of war, enclosing a list of the persons employed in the several offices of his department, with the salary allowed to each, pursuant to the resolution of this house, of the st ultimo; which were read, and ordered to lie on the table. _military establishment._ the order of the day being called for, the house went into committee of the whole, (mr. _white_ in the chair,) on mr. steele's motion for reducing part of the present military establishment of the united states. in reply to the speech made yesterday by mr. wadsworth, and which had been expressed in such strong language, mr. steele thought it necessary to make a few observations, as a preliminary, before the house went further into the debate. the gentleman from connecticut had disputed the calculations which he, mr. s., had produced. perhaps the gentleman's calculations may be right, and perhaps both of our statements may be so; but with respect to those which i produced, if the acts of congress are false, if the reports and estimates of the heads of departments on your table, mr. speaker, are false, then my statements are wrong, or "untrue" as the gentleman expressed it, and for which, i hope, on more cool reflection, he will not adhere to. mr. s. then read the acts of congress of the th of september, , th of march, , and th of august, same year; the th of february, , and d december, , &c., from which he clearly proved that every item of his calculations was exactly quoted. he knew of no surplusage unexpended at the war department, but $ , as reported by the secretary of the treasury; if any gentlemen in the house knew of any other, he hoped they would mention them. for his part, he thought the estimate for showed very little savings any where from the grants of the preceding year, but it contained demands for new grants much larger than for any former year. this, however, was a subject he did not at present mean to say much on, until he should hear the sentiments of other members. he therefore sat down with a reservation, that he would take the liberty of replying to such arguments as might be adduced against his proposition. mr. wadsworth disavowed any intention of being indelicate in his expressions yesterday, toward the gentleman from north carolina; and if he had, in the warmth of debate, said any thing to which that gentleman could take offence, it was not meant so, and he was ready to retract it. he could not, however, avoid taking notice, that the gentleman's arguments appeared to him to convey a strong censure on the executive, and to spread abroad improper impressions. the principal error which he dwelt on, was that of quoting the difference between the appropriations of and , to be so great as appeared from that gentleman's statement. but the fact is, that the gentleman had overlooked the laws, and instead of quoting the amount of the _two_ appropriations made in , he had only mentioned the amount of _one_, consequently this was giving an improper impression of the real comparative appropriations of those two years; for, when they are taken in the whole, the difference is not so great, nor the increase so much as mr. steele exhibited it, by $ , . in like manner, the comparative increases of the other years, , , and , have been misstated, and the truth is, that the total increases are not less, but _more_ than the gentleman represented them by the sum of $ , . . mr. clark hoped the gentleman last up did not suppose that the house was going to war with the secretary of war. he sincerely wished that some means should be adopted of conveying the sense of the house to the president, who would thereby be considerably relieved from the delicate situation in which he now stands with regard to the discretionary powers vested in him. before mr. c. sat down, he suggested the idea of filling up the blank in mr. steele's motion with the word three, so as to limit the military to three regiments. mr. milledge liked the spirit of the motion, in regard to the prevention of standing armies; but he was against its being put in practice at the present time. he differed from the gentleman from new jersey, and as his motion had not a second he would proceed. he wished the question under consideration to go to a committee of the whole, that a fair and open discussion of every point of the important subject might be brought into view. the situation of the state he had the honor to represent, had been mentioned in the course of debate; he therefore felt himself called on to deliver his sentiments; that he was persuaded there was not a member in the house who more ardently wished for peace than himself, or who would go further to promote so desirable an object, as putting an end to a savage war, and an enormous public expense; but he was of opinion that the reduction of the military establishment would not answer either of those purposes; that it well became members to take into consideration such parts of the union as lay exposed, and then judge the propriety of the intended measure; that it was well known that georgia was a frontier state, bordered on one side by a nation with whom a just understanding and intercourse still remains to be settled by treaty, and on the other by a warlike tribe of indians, the most numerous of any on the continent, ten thousand warriors, besides the cherokee nation of three thousand and five hundred--a state, in proportion to its wealth, and in proportion to what it contributes to the general government, of the fewest inhabitants, an extent of frontier from the river st. mary to the northernmost line, full three hundred miles--a country hardly at any period enjoying perfect safety, since the commencement of the revolution. my constituents said he, adopted the federal system, from a hope that we should be protected: some of them at this moment, have never been able to return to their habitations, which they left at the commencement of the war; and i am warranted in saying that a part of my constituents are now throughout the state under arms. let members for a moment place their constituents in the situation of mine, and let me ask them if they would not demand the protecting arm of government? as yet we have experienced little more than the enforcing a treaty, that has not been complied with on the part of the british, which has reduced some of our first citizens to a state of dependence on those who not long ago were their avowed and open enemies, and a deprivation of our territorial right, for the yielding of which a permanent peace and permanent line were to be established. of the peace we have experienced no great share, and as for the permanent line, it still remains to be run, and, from well-grounded information, the half-way conduct of the creeks the other day with mr. seagrove, gives very little reason to expect it. such was the situation of his state. but to the point: he was of opinion that we set out wrong in warring with the indians at any rate. unfortunately for us, the event has not answered the design, and we are now reduced to that state that hardly any change can mend. the unaccountable success of the indians has so elated them with their prowess,--and which likewise has presented views to the english and spanish they never dreamed of; and the federated situation of the different tribes occasioned him not to hesitate in pronouncing that the several frontier states would be more or less exposed to the cruel ravages of a savage warfare. if the customs of savage tribes did not direct them towards us, they were incessantly excited by the british and spaniards to amuse us with false pretences of peace, while they were engrossing the advantages of their trade. the aged indians kept to their hunting, and the young men were gratified in the military exploits with the blood of our fellow-citizens. in this situation the frontier of the united states, a distance of not less than fifteen hundred miles, must be garrisoned. he left it to gentlemen to calculate what force would be required for that purpose, if troops should be employed in no other way. militia, he said, were for sudden invasion; they were scattered when they returned, and must be protected while at home. the jealousy of the english, and their augmenting their force, surely ought not to occasion the reduction of any part of ours; if any thing, it ought to have a contrary effect. he likewise said that it would be necessary to view the early history of our country, and find what had been the conduct of spaniards and indians about the commencement of the present century. the spaniards, at the same spot where they now are, by their treachery, when they were at peace with the english, at a time when the carolinians little suspected, when they imagined they were in perfect alliance with the indians, the yamasses, creeks, and cherokees, those indians, by their instigation, massacred one hundred and thirty of their inhabitants, and drove the rest into charleston. the inhabitants of the capital of georgia are as much exposed as the carolinians then were; a distance of twenty miles from savannah, places them in an open, uninhabited country, to the creek nation, and within that twenty miles, thinly inhabited on account of the nature of their cultivation. what had happened, he said, might happen again: the spaniards had not changed their policy. if, therefore, we are forewarned, ought we not to be forearmed? that, from their dangerous situation, even on a peace establishment, there ought to be at least five hundred troops on that frontier. if public officers have misapplied the public money, the constitution pointed out a mode to punish them. the government belongs to the people, the officers are their servants, we are their representatives, and we ought to do them justice. he conceived it was praiseworthy in any member to afford any aid or information in his power to bring these things to light; that he felt it his duty to make strict inquiry into the expenditure of public money; that he was sent by his constituents to protect their property, and in doing that should vote against the present proposition. mr. findlay observed that a difference of opinion existed in respect to the motion for reducing the army. the mover was for filling up the blank with _two_ regiments; but mr. clark had proposed _three_, and was against discharging any of those already enlisted. the principle of the motion was what he wished to speak to. passing by the comparative view, so much alluded to in the course of the debate, of militia and regulars, he struck at once into the heart of the question. the redemption of the public debt, from the savings to be made by the reduction of the army, seemed to be a principal object with some members, but in his opinion, it was no more than a secondary one: the defence of the frontier is of superior concern. the origin of the war goes much farther back than that of the present government; it arose out of the war with britain; and it has been ever since changing for the worse, until it has at length assumed a very alarming complexion; for it has united a greater number of tribes than has ever been known, and it has exposed a much greater extent of our frontier. with regard to the mismanagement or abuses, if any there were, it was no place to discuss such subjects by desultory debating in this house, whilst there were other modes open. he did not, however, believe that any material abuses had taken place indeed. this war is not one of the faults chargeable to the executive, for it might with more justice, perhaps, be said to have had its origin in the ineffectual measures of the legislature. the first congress assembled under the present government found the union in a state of war; and although one regiment was stationed at pittsburg, yet the militia were not relieved from actual service. but the lately raised troops may perhaps be found more effectual, as it is said there is an excellent system of discipline established amongst them. with regard to the argument that the union cannot support so heavy an expense by new taxes, he was of opinion that every consideration ought to give way to the safety and protection of the country. a particular plan is set into operation for accomplishing a peace, and it ought not to be arrested without a trial being made. the ill-defined law authorizing the president to call out the militia, and the levies under general harmar, did not answer the end intended, for the time of their enlistment had nearly expired ere they had reached their destination; but if general harmar had carried out two regiments of permanent troops, he could, without the assistance of the militia, have destroyed all the indian towns and villages that stood in his way, and he would have completed the object of erecting a line of posts which would secure a lasting peace; but from the weakness of the force and the inefficacy of the law, the purpose was arrested at a critical moment, and the vengeance of the indians roused to the utmost pitch; instead of their fears being alarmed, the next step of raising another regiment was of a piece with the former weak policy; for the encouragement was insufficient, and the miserable two-dollar men who were raised for a six months' service--their fate is too well known, and will be long remembered. they arrived at the wilderness with clothing that lasted only to the time they reached the scene of action, and those who were not cut off by the enemy were left to starve with cold in the most inclement season. the fatal catastrophe of this campaign has only served to elate the indians, and render them insolent, as appears from their treatment of our messengers under flags of truce. the parsimony on those occasions has been the cause of a double expense. in opposition to this it may be said that those parsimonious plans were recommended by the executive, and only enacted into laws by the legislature. this, however, if it were the fact, is no apology for the legislature, for they have no right to cast their legislative responsibility upon the executive department; nor can they do it without a breach of trust towards their constituents. the members knew that the encouragement of pay and time of enlistments would never answer any good purpose; the want of resources could have been no reason for that parsimony toward the defence of the frontiers, because it is known that we found revenue enough not only to pay the interest of the public debt, and to support the government, but even to pay the debts of the individual states. the conviction of these mistakes induced congress at last to make adequate provision, and now an attempt is made to withdraw the means before the end is accomplished. the other branch of the legislature has prevented us from giving higher wages to encourage the recruiting service; but notwithstanding all this, it appears to go on with considerable success. here he mentioned something of the confidential communications which he was not now at liberty to explain. the gentleman who says that two regiments are sufficient to garrison the forts, ought to consider that garrisoning those is not the only object in contemplation. if we expect to exist as a nation we must protect the whole frontier, and make it the interest of the indians to be at peace with us. but do gentlemen consider the consequences of throwing all internal defence and distant expeditions upon the militia? is it not enough that they already stand as a picket guard to their brethren who live at ease; that they eat their bread in the fear of their lives, and are frequently embittered with the view of mournful incidents; but that we must lay a deliberate plan for increasing the number of their fatherless children and childless parents? to say that those states who have frontiers, ought to be left to protect themselves, is a very anti-federal sentiment, which he was sorry to hear advanced in that house. neither is it generous to say we will pay the expense, and let them fight for us. do gentlemen contemplate to what issue these principles would lead? do they not observe that the fate of the government is deeply involved in the decision? perhaps i may be asked, did not the states depend chiefly upon their own exertion for the defence of the frontiers under the old congress? yes, they did, and were better protected than since that period. but let it be recollected that at the time the states had the command of their own resources, and the laying and executing their own plans, that the indians were not so formidably combined. but that since the states had not the power of retaliating, nor the means of gratifying with presents; since the indians have been solemnly told to look away from the little fires of the states, to the great fire of the union, they have looked upon us as a more formidable and dangerous foe, and made their arrangements accordingly; and european nations, and emissaries among them, have improved upon the circumstance, and excited and aided them in their union and exertions. he made some further remarks on the impolicy of oppressing the militia at marietta, &c., and asked if it were possible that those unfortunate few could be able to protect the whole frontier against the united force of the indians? he agreed with those who said that the sense of the people of america was in favor of peace; but the question is come to this. it is not to begin a war that we have raised this army, but to procure a peace, and so soon as this end is attained, the army will be discharged. it is raised to protect, not to oppress, or to aid in governing our citizens. i know, said he, that standing armies have always been sources of oppression and aids of tyranny. our people may long be governed without such aids; their situation will not admit of abuses from standing armies, nor would the citizens submit to them. he was confident that the army would be discharged by the next legislature, as soon as a prospect of our affairs will admit it. the present prospects were not of a very flattering nature, and therefore it was good policy to keep up the force at the present crisis; and it would be dangerous to repeal the law under the circumstances. the present indian war is essentially different from any former one. when britain and france divided north america betwixt them, if the emissaries of both excited the indians to war, the power of both afforded protection. when britain became possessed of the western posts, and many tribes of indians commenced a war, the british government conducted the war, carried it into the indian country, and by the dread of their arms procured peace; but the indians were not then supported by other powers. in the present war, the indians, who at that time knew nothing of us, have combined to make it a common cause; and no superior powers interest themselves in our favor. no: they conceive our interest to be inimical to theirs. but if they did not receive encouragement, protection, and supplies from our superior neighbors, a peace would soon be procured. the gentlemen who support this resolution know well how that matter stands, and they know explanations here are not convenient. he concluded by declaring that he could not vote for the motion. the committee now rose, and had leave to sit again. friday, january . samuel sterrett, from maryland, appeared, and took his seat in the house. the house proceeded to consider the amendments reported yesterday by the committee of the whole house to the bill to make compensation to the widows and orphans of certain persons who were killed by indians, under the sanction of flags of truce; and the same being read, some were agreed to and others disagreed to. and then the said bill, being further amended at the clerk's table, was, together with the amendments, ordered to be engrossed and read the third time to-morrow. the speaker laid before the house a letter from the secretary of the treasury, enclosing lists of the persons employed in the several offices of his department, with the salary allowed to each; also, a letter accompanying certain statements relative to foreign loans, which have been made by the united states, under the authority of the president, pursuant to the resolutions of this house of the th and th ultimo; which were read and ordered to lie on the table. the house resolved itself into a committee of the whole house on the bill to regulate the claims to invalid pensions; and, after some time spent therein, the committee rose and reported progress. saturday, january . a petition of the inhabitants of the city of hudson, in the state of new york, was presented to the house and read, stating the inconveniences under which they labor, from being obliged to register, enter, and clear their vessels at the port of new york, and praying that the said city of hudson may be made a port of entry. referred to the secretary of the treasury, with instruction to examine the same, and report his opinion thereupon to the house. an engrossed bill to make compensation to the widows and orphans of certain persons who were killed by indians, under the sanction of flags of truce, was read the third time and passed. the speaker laid before the house a letter from the secretary of war, accompanying the copy of a message of cornplanter and new arrow to major general wayne, dated the th of december last, relative to the measures which they have taken to conclude a peace, on behalf of the united states, with certain tribes of hostile indians; which were read and ordered to lie on the table. _military establishment._ the house again resolved itself into a committee of the whole house on the motion of the th ultimo, for reducing the military establishment of the united states. mr. moore said, that there was not sufficient information before the house respecting the prospect of a peace, to warrant a sudden reduction of the army. he referred to the abuses which had been hinted at in some of the branches dependent on the war establishment, but he did not believe there had been any worth much notice. he also mentioned the abstruseness of attempting an investigation into the origin of the war--whether the frontier settlers, or the indians, were in fault, was a difficult thing to determine; but from many circumstances, it appeared to him, the white people were often guilty of committing depredations. this was, in his opinion, a good reason why the protection of those frontiers should not be intrusted to the militia that would be raised there. shall we intrust the conduct of that matter to the very persons who it has been alleged are often the aggressors? can the president, at the distance he is situated from the western territory, check all the irregular proceedings that might happen amongst such a militia? there were two obvious reasons for passing the law of the th of march, , for the protection of the frontiers by regular forces. first, it could not be expected that militia would always prove successful against the indians, because the latter are gaining more experience every day in the mode of warfare, and there can be no dependence on a treaty between those militia and the indians. the second reason was, that the president was strongly impressed with the necessity of establishing the greatest degree of harmony between the united states and the indians, by encouraging and protecting a trade with them, and that this could be easiest and best effected by establishing a line of forts along the frontiers, to be garrisoned by regular troops. mr. m. next mentioned something of the manners and customs of the indians, whose practice it is to spend most of their time on their hunting grounds, leaving their old men, women, and children, in their towns. they have no regular plan of government, and can only be attached by influencing some of their chiefs. the system of harassing them by burning and destroying their towns at the time they are employed in hunting, has come recommended to us by experience, and regular troops are the best to be employed in this service. their present inexperience will soon be done away by a proper mode of discipline, and why may not these troops be soon instructed? are they not as capable of receiving instructions as militia, and may we not expect more subordination amongst them, than could possibly be established over militia? he concluded by declaring himself against the motion. [here the speaker informed the chair that lie had received a confidential message from the president. the committee then rose, and the galleries were closed for some time.] the house having gone into committee, the debate was renewed by mr. williamson, mr. madison, and mr. steele. mr. steele rose after mr. madison, and said he was perfectly in sentiment with that gentleman, in regard to the propriety of inserting an amendment to the motion, which might secure a sufficient appropriation to carry on offensive operations against the hostile indians, by the militia of the frontiers; and if an alteration was proposed to that effect, he would second it. the attention of the house to this question speaks its importance; it is probable one more important will not occur during the present session. on its decision are suspended the hopes and fears of the people of this country, their hopes of a speedy and honorable peace, and their fears of a standing army, with its usual retinue of political evils. the present is regarded as an interesting epoch in the affairs of the united states; and it has been perceived, with serious regret, that while our national character is forming, (he hoped it was not yet formed,) it seems to partake, in some respects, more of the unnatural spirit of monarchy, than of the mild and conciliatory temper of a republic. the principle of keeping up standing armies, though highly obnoxious to the great body of the people, has not been equally so to the government; they have been maintained and increased without affording protection, or even defence to the frontiers. the supplies necessary to support the establishment begin to discover an alarming derangement of the public finances, and it is now incumbent on the house of representatives to check this growing mischief. mr. s. then adverted to the effects of standing armies on the morals and political sentiments of the people, wherever they had been employed; of the expensiveness of all such establishments, and of the wicked purposes to which they had been, and might be subservient. he said he had prepared himself to have spoken largely to this point, and to have quoted the pernicious effects of such a policy in other nations; but the debate having been already lengthy, and the committee probably fatigued, it would be sufficient for his present purpose, for the members to make their own reflections, and to mark the rapid progress of the army from to , both in numbers and expenses. instances from foreign history are superfluous, when our own affords such ample testimony. the establishment began with one regiment: it is now five. the house was called on in to appropriate a little more than $ , for that department; in the present year, above $ , , is demanded. the reason of this extraordinary additional expenditure, this unexpected increase of the army, if not enveloped in darkness, has been founded on policy hitherto not satisfactorily explained. he said, however lightly he was disposed to touch this part of the subject, he could not avoid reminding the committee of the memorable sentiments of , in regard to standing armies; of the universal abhorrence of the americans to them at that time; and, to illustrate it more clearly, he read the expressions of some of the states in their bills of right. these were the sentiments of the whigs of , and to such whigs he wished to appeal on this occasion. he also reminded the committee of the recent debates of , of the amendments proposed in several of the state conventions; of the unanimity which prevailed among all ranks of people on this particular point; and it is now to be lamented, said he, that while the ink which recorded these objections to the constitution is yet drying, the evil then predicted has taken place. if there is a subject on which much deliberation is unnecessary, in order to form a right opinion, it would be in regard to military establishments. the feelings of a free people revolt at their continuance, and every man who reads or thinks, can point out their dangers. he said he felt more anxiety for the fate of this motion, than commonly marks his conduct, because this is the last session that will ever afford him an opportunity to trouble the house with his sentiments on this or any other subject. the motion was brought forward to discharge a duty which he owed to his constituents, to satisfy his own conscience, and to afford that protection to the frontiers which they deserved, and to save the public money. if an uncommon degree of zeal was discovered in supporting the motion, it ought to be attributed to these, and no other motives. the question will now soon be taken; if adopted, i shall be among those who rejoice; if rejected, among those who have always submitted with a proper degree of decency to the decision of the majority. but in any event, the public will know that we have asserted the sense of the people against standing armies; that we are anxious to defend the frontiers against their enemies; that we have recommended a system of economy and efficiency, instead of profusion and delay; that we have recommended a system calculated to produce victory and peace, instead of disgrace and war; and that we wish to rescue the government from the intoxication of the times, and all the apery of military establishments. he said he had been attentive to the arguments of the opposition, and they led principally to four points. if neither of these positions be found tenable, the motion will certainly succeed; and that they are not tenable, is believed and will be shown. st. it has been boldly asserted that the president is the author of the existing system. dly. they call in question the sincerity of our declarations in wishing to afford effectual protection to the frontiers. dly. they deny the competency of the militia. thly. the impolicy of reducing the establishment, when a treaty is expected. in regard to the first, we deny that the president is the author of this plan of prosecuting the war. not having avowed explicitly himself that he is so, no document appearing to confirm that opinion, we are justified in attributing a system which appears to us ineffectual to his secretary, and not to him. it is true, that the secretary is only a finger of his hand, and the intimate connection which must of necessity subsist between them, perhaps, is the ground upon which the assertion has been made. the secretaries are all equally near to the president, and if it be admitted that he is the author of this, he may, with equal propriety, be said to have been the author of every system on general subjects which either of them have recommended. was he the author of the report on the fisheries? was he the author of the plan for establishing the national bank? it is known that he was not, and circumstances might be mentioned (which are withheld from delicacy) to confirm this opinion. was he the author of the funding system? some gentlemen in the opposition to this motion, would not be willing to give the president that credit if he claimed it, and some who support this motion would not only be sorry that the president had even claimed such a credit, but believe that it was in no respect attributable to him. the same gentleman (mr. wadsworth) who first asserted that the president was the author of this military plan, in the same speech admitted it to be the war, as well as the plan of the house, and then argued on the necessity of stability in our measures. it is not very material to the present question whose plan it is; being a public measure, we are justified in offering our objections to it; and this is the first time that i have heard it publicly asserted that a government should persevere in an error, because they had undertaken it. if the plan be a good one, it may be supported by reason; if a bad one, no name ought to be called in to prop it up. the inconsistency of that gentleman's (mr. wadsworth's) arguments not only supports the motion before the committee, but shows the wretched shifts which have been used to defeat it. it has been said, in the course of the debate, that individual members, and even this house, are incompetent to decide upon the efficacy or inefficacy of military plans. in answer to this it may be said, that if we are not all generals, we are all members, and that we have the privilege of thinking for ourselves and for our constituents. to admit this doctrine in the latitude which has been expressed, would be to introduce military ideas indeed; it would be to make soldiers of us, instead of legislators: nay, worse than that, it would be to revive the exploded doctrines of passive obedience and non-resistance. in regard to the sincerity of his intentions to afford effectual protection to the frontiers, mr. s. said that he had been sufficiently explicit; that a feeling for the sufferers had dictated this motion; that he was sorry that it had been whispered in the ears of some of the members that it was intended to withhold the necessary appropriations, and divert them to other purposes. if two regiments were insufficient to garrison all the posts necessary for defence, he would even, under certain restrictions, consent to continue the three sub-legions, thereby enabling the president to establish double the number of posts now erected, if he should deem it advisable. regular troops being incapable of active expeditions against indians in the wilderness, his wish was to abandon that system and confine them entirely to the garrison. the next objection to the motion is the incompetency of the militia; and to support this opinion the gentleman from connecticut (mr. wadsworth) has made this expression, "that as to the expedition under general st. clair, the regulars were few, and not to be named when compared with the number of the militia." the truth is, there was not a man engaged that day as a militia man, except the advance guard commanded by colonel oldham, which consisted of about three hundred, perhaps a few more. the field return of the day preceding the action being in the war office, this can be ascertained with precision. the balance of the army on that unfortunate day, had been enlisted as regulars, were fought as regulars, even clothed as regulars, and, poor fellows, died like regulars. they suffered the fate which awaits every regular army destined for similar expeditions. even the handful of militia employed that day, did not deserve that name; they were chiefly substitutes for drafted men from the ceded territory. this draft became unavoidable, from a misfortune to general sevier, which mr. steele related. the attack on major adair has also been mentioned as a proof of the incompetency of militia, and mr. s. insisted that the only inference which could be drawn from thence was, that one hundred militia were able to repel, but not destroy, near two hundred indians. this event he conceived was in favor of and not against his motion. he next adverted to the arguments of mr. wadsworth, in regard to the war of ; of the establishment of posts in pennsylvania and virginia, and of the success of colonel boquet's expedition. if two worn-out regiments at that time were sufficient to defend the frontiers, and, with the aid of the militia, to terminate the war, two new regiments, with all the vigor which the gentleman described them to possess, with the aid of established posts, and a much more effective militia, can certainly be equal to the same end. after examining mr. w.'s arguments for some time, mr. s. said, that when analyzed, it would be found that they proved more than they were intended to prove; but the merits of this motion did not require that he should take advantage of these indiscretions. he showed from the history of , that though posts were established, with a handful of regular troops in each, they never answered the purpose of effectual protection; but the frontier people were always obliged, in a great degree, to defend themselves; that they were best calculated for that service, and that they would perform it now with alacrity and success, if well rewarded. mr. s. then refuted the objection against the militia on account of their waste and expense which mr. w. had alluded to. the law allows a mounted volunteer, furnishing himself with a good horse, good arms, provisions, and every other necessary, except ammunition, at his own risk and expense, one dollar per day. the exact expense of such an expedition can be calculated. whether successful or not, the charge to the public cannot be increased. the contractors, quartermasters, and hospital departments, are all avoided, with the abuses, expenses, and frauds, attending such establishments. mr. s. enlarged upon this point, and said that these were always found to be the most expensive departments in any army, and that the federal treasury had felt their effects already. in favor of the militia, it may be asked, who fought the battle of bunker's hill? who fought the battles of new jersey? who have fought the indians so often with success, under generals wilkinson, scott, sevier, and others? who marched in under general rutherford, through the cherokee nation, laid waste their country, and forced them to peace? who fought the battles of georgia, under clark and twiggs? who fought the battles of south carolina, under the command of an honorable member now present? delicacy forbids me to enlarge upon his successes in his presence. who fought the ever-memorable battles of cowpens, king's mountain, hanging rock, blackstocks, the pivots on which the revolution turned in the southern states? in short, who fought all the battles of the southern states, while we had a mere handful of regular troops, scarcely the shadow, much less the reality of an army? they were all fought by freemen, the substantial freeholders of the country--the men attached to the revolution from principle, men who were sensible of their rights and fought for them. such men will not enlist in regular armies, nor will any one who has the disposition or the constitution of a freeman. it would give me pain to describe the trash which composes all regular armies: they enlist for three dollars a month; which, in a country like the united states, is a sufficient description of their bodies as well as their minds. such men are not fit to combat the most active enemy in the world. here mr. s. read major gaither's and major trueman's depositions, respecting the defeat of the th november, , stating that they could not see the indians, because they were behind trees, &c.; that the regular troops tried, but could not fight that way; that they seemed to be stupid, and incapable of resistance; and that if any general in the world had commanded such men that day, he must have been defeated as they were. an additional argument, and one of the most weighty, too, against regular expeditions, in this species of warfare, is, that, by the slowness of their movements, the force of the enemy may be concentrated; time is afforded them to form alliances, and to confederate against those whom they consider a common enemy. it is otherwise with militia incursions. he offered a number of reasons to show that it was so, and how essential for the interest of the united states to adopt a policy calculated to detach the tribes from each other as much as possible. but it has been said, these men were not regular troops. mr. s. asked, what, then, were they? they surely were not militia. the last objection, and the least serious of all, to this motion, is the expectations of a treaty in the spring. mr. s. said, if he thought the gentleman who threw this difficulty in the way believed himself that we have any reason to expect a permanent peace from the treaty now proposed, it might deserve an answer. facts are more to be relied upon than words. from the channel through which these propositions have come--from the whole complexion of their talks, and from the late attack on major adair, it may safely be asserted that no peace can be effected in the spring. he recapitulated some of the difficulties which this motion had to conflict with, and said that he could mention others, if he was at liberty to do so. under such circumstances, success is hardly to be expected; but he knew the merits of the motion deserved it. mr. hillhouse, who had hitherto sat silent, observed that nothing new had been advanced in the whole course of this long debate, but what he had heard mentioned last winter in that house. he was then opposed in principle to a war establishment, and he still retained the same opinion; but, from the complexion of affairs, it appeared to him that he ought to submit, and give up his own opinion to the general sense of the legislature, which at present seemed to be for persevering in the system already adopted, and which, as it had scarcely had time for a fair trial, he thought, therefore, ought not to be arrested, perhaps in the very instant when its efficacy was to be expected. if peace should not be established during the next summer, he would then join with such members as would propose a better system; but as the law provides for the discretionary powers of the executive, it would be best to rely on them. a standing army, he said, was a thing impossible to be accomplished in the united states whilst the house of representatives have the power of granting money only for two years at any time; he therefore had no fears on that score. an army existing in time of peace was the idea he had of a standing army, and not an army embodied for only a year or two. upon the whole, it would be as expensive to disband the present force, and to institute another of militia, &c., as it will be to keep up the existing establishment for a little longer time; it was therefore his advice to let the matter rest where it is, with the executive, for the present. but, in case of a peace not being accomplished within a reasonable period, he would join those who would be for a change in the system; and he was clearly of opinion that a system might easily be adopted, not only to protect our frontiers by repelling the savages, but to exterminate them altogether. mr. findlay felt himself inclined to say a word or two more in reply to mr. steele. he thought it would be unjust to lay so much of the weight of protecting the frontiers on the militia only. he expatiated on the meaning of the word _militia_ as defined by law, &c. he also remarked that, however it might be fashionable to despise the levies, yet amongst them there were examples of great bravery to be found, and particularly in one battalion of the unfortunate army on the th of november, . he noticed the well-conducted retreat of major clark, and the success of general broadhead up the alleghany. it was unjust to expect to raise enough of militia in the back parts of pennsylvania; and the inhabitants of virginia are so dispersed near the frontiers that they cannot be expected from that state. with respect to the men who went out with general harmar, and whose time of enlistment expired soon after they reached the scene of operations, many of them remained and settled in that country. he again repeated the injustice of calling out heads of families from one part of the frontier; and above all, he lamented the risk and loss of lives. but, if it should be determined to carry on the war with militia, let them be called from all parts of the united states. the burden already laid on a part of the inhabitants is extremely unequal, and must not lie longer on them. let the troops now raising be disciplined. i am informed that many of them are considerably advanced in point of discipline, and may before spring become expert soldiers. let these go on in the present system, and let the militia also be kept up or increased, until the object shall be attained for which the law was intended, and then, and not before, it may be proper to talk of reducing the present establishment. we are now in a situation that it would be extremely imprudent to retreat from. mr. murray delivered some opinions on the preceding arguments of all the members, and remarked that the army, under the present establishment, had no right to be compared to or called a standing army; it bore no more comparison to a standing army than a chameleon to an owl. mr. wadsworth closed this tedious debate with a few further explanations. he accounted for the difference between his calculations and those of the gentleman from north carolina by observing that he got some of his statements from the war office. mr. steele's were taken from the appropriation laws, and in one instance he had underrated the appropriations. with regard to the opinions he had delivered on the militia, he had never meant to traduce the character of militia, because he had often experienced their brilliant actions; his arguments went no further than to show that the operations of regular troops were in general more effectual. he never wished to detract from the honor of militia, but only to remark that they were not so efficient as regular troops. the question on the original motion being now put, was negatived. mr. williamson did not entirely approve of the motion in its present form; the blanks might be so filled, he thought, as to import a thing opposite to his wishes--they might import a discharge of the regular troops already raised. he believed his colleague had no such desire; he thought the measure would be improper; but he wished not to have a regiment of officers without soldiers; he wished to fix a time at which the recruiting service should cease and the supernumerary officers should be discharged. as he intended to move that the proposition might be so amended, he should consider it in that light, and he believed the measure would not be imprudent nor inconsistent with the most vigorous measures of defence or offence. it should be remembered that the house of representatives, when they had the bill before them, which last winter passed into a law, for defending the frontiers, sent it to the senate, with a clause importing that officers below the rank of field-officers should not be put into commission any faster than troops could be enlisted. the senate, adhering to their privilege, refused to agree to that clause in the bill, and it became necessary immediately to commission the officers for five thousand men, some of whom, if report speaks truth, not covetous of honor, are content with their pay, without having raised three men. by the proposed amendment the officers only would be dismissed, whom most of us wished never to have seen in commission. the proposed regulation has been censured as implicating some kind of censure on the executive. he viewed it in a different light. the executive had done what was proper and necessary at the time. but if it should appear that other measures would fit the change of circumstances, he did not see why those measures should not be adopted. it should be recollected that, during the last winter, when the estimate of five thousand men as necessary for the defence of our frontiers was handed to congress, there was no militia law. a well-armed effective militia, that palladium of liberty, had once and again been recommended by the president to the attention of congress; but congress, from year to year, as if they wished for a standing army, had neglected the militia. towards the close of the last session, indeed, they passed a law. he hoped he might, without offence, call it the shadow of a law. it was saying, in a few words, that the several states might have a good militia if they pleased; and, if they pleased, they might have none at all. was the executive to trust the defence of a country to a militia formed under such a law? he thought not. but he observed that, since the last winter, it had come to be generally known that a class of our fellow-citizens exist on the frontiers who are at all times ready to serve, not as drafted militia, but as volunteers. these are the men by whom the indians must be chastised, or we shall never have peace. they are the best woodsmen and marksmen, and they have no professional interest in spinning out the war. he must repeat the observation that volunteers of the militia are the only troops for vigorous offensive operations. figure to yourselves an army of regulars creeping through the wilderness, with all its cannon and other military apparatus, in chase of a naked savage, who sees it without being seen. it is an elephant in chase of a wolf. the troops already raised may be pretty well disciplined before the season for action; they are sufficient, with the co-operation of the militia, to take a post, and build forts where they please; every thing else is beyond their power, if they were not five but fifteen thousand. they will never see an indian unless he chooses to be seen. he wished to be indulged in a single observation respecting a case in which it was said the other day, the militia had been surprised. he was sorry that his naming major adair had produced the remark. he would nevertheless venture to repeat the case as an instance of vigilance and bravery. the major, believing there was an enemy at hand, had visited all his posts at midnight in person; his lieutenant, madison, before the dawn of day, roused all the men, telling them that the indians were coming. the major, wishing to leave the ground before daylight, called in the sentinels; but the indians, rushing in with them, gave a heavy fire before there was light by which they could be seen. the major had not the merit, as he believed, of having been a continental officer, but he had the merit, not less honorable, of having served bravely in the militia. he questioned whether any of the green troops to be recruited next spring or summer will make so good a defence as major adair's militia had made. they had taken scalp for scalp, though they fought against the odds of three to one. he prayed it might be remembered that his ideas were not founded on any hopes of sudden peace with the indians; on the contrary, every motion of the indians, and every measure taken by those who had most influence over the indians, induced him to regard an indian war as the perpetual tax of at least one million per annum. it is fortunate, as he conceived, that the united states know the source of their misfortunes; and if they are compelled to spend one million per annum in opposing a savage enemy, who seems to be hunted upon them, perhaps they may be taught to indemnify themselves by refusing to expend several millions which they can easily save. if a perpetual tax on this head must be raised, sound policy will readily point to the proper object of taxation; but this must remain over for our successors. in the mean time, believing that the troops already raised are sufficient to maintain every fort that is or may be erected, and being confident that volunteers may be found at any time sufficient, if it shall be necessary, to extirpate every hostile tribe of indians, he should vote for the proposition with the proposed amendment. the question being taken on mr. w.'s amendment, viz: "_resolved_, that a committee be appointed to bring in a bill to reduce the military establishment of the united states to ---- regiments, to consist of the men who are now in service, or who may be recruited before the ---- day of ---- next," &c.-- was negatived-- to . the question then was on the original resolution, as moved by mr. steele; which, being put, it was negatived-- members only rising in favor of it. the committee then rose, and the chairman reported accordingly. the report was laid on the table, and the house adjourned. monday, january . mr. livermore, from the committee appointed, presented a bill to repeal part of a resolution of congress of the th of august, , respecting the inhabitants of post saint vincents; which was received, read twice, and committed. mr. laurance, from the committee to whom was recommitted the bill making appropriations for the support of government for the year , reported an amendatory bill; which was read twice, and committed to a committee of the whole house immediately. the house accordingly resolved itself into the said committee, and, after some time spent therein, the chairman reported that the committee had had the said bill under consideration, and made no amendment thereto. _ordered_, that the said bill do lie on the table. the house again resolved itself into a committee of the whole house on the bill to regulate the claims to invalid pensions; and, after some time spent therein, the committee rose, and reported progress. tuesday, january . the house proceeded to the consideration of the bill making appropriations for the support of government for the year , which lay on the table; and the said bill being amended, was, together with the amendments, ordered to be engrossed, and read the third time to-morrow. a message from the senate informed the house that the senate have passed a bill entitled "an act in addition to the act entitled 'an act to establish the judicial courts of the united states;'" to which they desire the concurrence of this house. the speaker laid before the house a letter from the secretary of state, accompanying a report of the assays and experiments made by the director of the mint, on the gold and silver coins of france, england, spain, and portugal, pursuant to the order of the th of november last; which were read, and ordered to lie on the table. the bill sent from the senate entitled "an act in addition to the act entitled 'an act to establish the judicial courts of the united states,'" was read twice, and committed. _military establishment._ the house proceeded to consider the motion of the th ultimo, for reducing the military establishment of the united states, to which the committee of the whole house had reported their disagreement on saturday last. whereupon, a motion was made and seconded to amend the same by striking out the words "each of ---- non-commissioned officers, privates, and musicians," and inserting, in lieu thereof, the words "of ---- non-commissioned officers, musicians, and ---- of the privates who are now in service, or may be recruited before the ---- day of ---- next." and the question being put thereupon, it passed in the negative--yeas , nays , as follows: yeas.--john baptist ashe, abraham clark, elbridge gerry, william b. giles, nicholas gilman, benjamin goodhue, christopher greenup, william barry grove, richard bland lee, george leonard, samuel livermore, nathaniel macon, james madison, john francis mercer, andrew moore, nathaniel niles, alexander d. orr, josiah parker, jeremiah smith, john steele, thomas sumter, thomas tredwell, thomas tudor tucker, abraham venable, artemas ward, and hugh williamson. nays.--fisher ames, abraham baldwin, robert barnwell, egbert benson, elias boudinot, shearjashub bourne, benjamin bourne, jonathan dayton, william findlay, thomas fitzsimons, andrew gregg, thomas hartley, daniel heister, james hillhouse, daniel huger, aaron kitchell, john wilkes kittera, john laurance, john milledge, frederick augustus muhlenberg, william vans murray, cornelius c. schoonmaker, theodore sedgwick, peter sylvester, israel smith, william smith, samuel sterrett, jonathan sturges, george thatcher, jeremiah wadsworth, alexander white, and francis willis. and then the main question being put, that the house do agree to the said motion, it passed in the negative--yeas , nays , as follows: yeas.--john baptist ashe, abraham clark, william b. giles, nicholas gilman, benjamin goodhue, christopher greenup, william barry grove, george leonard, samuel livermore, nathaniel macon, john francis mercer, nathaniel niles, alexander d. orr, josiah parker, jeremiah smith, john steele, thomas sumter, thomas tredwell, abraham venable, and artemas ward. nays.--fisher ames, abraham baldwin, robert barnwell, egbert benson, elias boudinot, shearjashub bourne, benjamin bourne, jonathan dayton, william findlay, thomas fitzsimons, elbridge gerry, andrew gregg, thomas hartley, james hillhouse, daniel huger, aaron kitchell, john wilkes kittera, john laurance, richard bland lee, john milledge, andrew moore, frederick augustus muhlenberg, william vans murray, cornelius c. schoonmaker, theodore sedgwick, peter sylvester, israel smith, william smith, samuel sterrett, jonathan sturges, george thatcher, thomas tudor tucker, jeremiah wadsworth, alexander white, hugh williamson, and francis willis. _ordered_, that the committee to whom was commiteed the letter and representation from the chief justice and associate judges of the supreme court of the united states, referred to in the president's message of the th of november last, be discharged from the further consideration of the same. the house again resolved itself into a committee of the whole house on the bill to regulate the claims to invalid pensions; and, after some time spent therein, the chairman reported that the committee had again had the said bill under consideration, and made several amendments thereto; which were read, and partly considered. friday, january . a message from the senate informed the house that the senate have passed a bill, entitled "an act respecting fugitives from justice, and persons escaping from the service of their masters," in which they desire the concurrence of this house. monday, january . the bill sent from the senate entitled "an act respecting fugitives from justice, and persons escaping from the service of their masters," was read twice, and committed. monday, february . _fugitives from justice and from labor._ the house resolved itself into a committee of the whole house on the bill sent from the senate entitled, "an act respecting fugitives from justice and persons escaping from the service of their masters;" and, after some time spent therein, the chairman reported that the committee had had the said bill under consideration, and made an amendment thereto; which was twice read, and agreed to by the house. _ordered_, that the said bill, with the amendment, do lie on the table. tuesday, february . _fugitives from justice and from labor._ the house proceeded to consider the bill sent from the senate entitled "an act respecting fugitives from justice and persons escaping from the service of their masters," which lay on the table: whereupon, the said bill, together with the amendment agreed to yesterday, was read the third time; and, on the question that the same do pass, it was resolved in the affirmative--yeas , nays , as follows: yeas.--fisher ames, john baptist ashe, abraham baldwin, robert barnwell, egbert benson, elias boudinot, shearjashub bourne, benjamin bourne, abraham clark, jonathan dayton, wm. findlay, thomas fitzsimons, elbridge gerry, nicholas gilman, benjamin goodhue, james gordon, christopher greenup, andrew gregg, samuel griffin, william barry grove, thomas hartley, james hillhouse, william hindman, daniel huger, israel jacobs, philip key, aaron kitchell, amasa learned, richard bland lee, george leonard, nathaniel macon, andrew moore, frederick augustus muhlenberg, william vans murray, alexander d. orr, john page, cornelius c. schoonmaker, theodore sedgwick, peter sylvester, israel smith, william smith, john steele, thomas sumter, thomas tudor tucker, jeremiah wadsworth, alexander white, hugh williamson, and francis willis. nays.--samuel livermore, john francis mercer, nathaniel niles, josiah parker, jonathan sturges, george thatcher, and thomas tredwell.[ ] monday, february . _examining votes for president, &c._ mr. william smith, from the committee appointed on the part of this house jointly with a committee appointed on the part of the senate, to ascertain and report a mode of examining the votes for president and vice president of the united states, and for other purposes expressed in the resolution of the fifth instant, made a report; which was twice read, and agreed to by the house, as follows: "that the two houses shall assemble in the senate chamber on wednesday next, at twelve o'clock: that two persons be appointed tellers on the part of this house, to make a list of the votes as they shall be declared: that the result shall be delivered to the president of the senate, who shall announce the state of the vote, and the persons elected, to both houses, assembled as aforesaid, which shall be deemed a declaration of the persons elected president and vice president, and, together with a list of the votes, be entered on the journal of the two houses." _ordered_, that mr. william smith and mr. laurance be appointed tellers on the part of this house, pursuant to the said report. wednesday, february . _votes for president and vice president._ a message from the senate informed the house that a president of the senate is elected for the sole purpose of opening the certificates, and counting the votes of the several states, in the choice of a president and vice president of the united states; and that the senate is now ready, in the senate chamber, to attend, with this house, on that occasion. _resolved_, that the speaker, attended by the house, do now withdraw to the senate chamber, for the purpose expressed in the said message. the speaker accordingly left the chair, and, attended by the house, withdrew to the senate chamber, and, after some time, returned to the house. the speaker resumed the chair. mr. william smith and mr. laurance then delivered in, at the clerk's table, a list of the votes of the electors of the several states, in the choice of a president and vice president of the united states, as the same were declared by the president of the senate, in the presence of the senate and of this house; which was ordered to be entered on the journal, and is as follows: [the same as in the senate proceedings.] thursday, february . _official conduct of the secretary of the treasury._ the resolutions brought forward yesterday by mr. giles, were called for by that gentleman. the reading being finished, mr. ames moved that the resolutions should be taken up. mr. murray suggested the necessity of giving a preference to the judiciary bill reported by him some days since. he was seconded by mr. key. the motion for taking up the resolutions was carried, forty members rising in favor of it. the resolutions were accordingly read by the clerk, and are as follow, viz: . _resolved_, that it is essential to the due administration of the government of the united states, that laws making specific appropriations of money should be strictly observed by the administrator of the finances thereof. . _resolved_, that a violation of a law making appropriations of money, is a violation of that section of the constitution of the united states which requires that no money shall be drawn from the treasury but in consequence of appropriations made by law. . _resolved_, that the secretary of the treasury has violated the law passed the th of august, , making appropriations of certain moneys authorized to be borrowed by the same law, in the following particulars, viz: _first_, by applying a certain portion of the principal borrowed to the payment of interest falling due upon that principal, which was not authorized by that or any other law. _secondly_, by drawing part of the same moneys into the united states, without the instructions of the president of the united states. . _resolved_, that the secretary of the treasury has deviated from the instructions given by the president of the united states, in exceeding the authorities for making loans under the acts of the th and th of august, . . _resolved_, that the secretary of the treasury has omitted to discharge an essential duty of his office, in failing to give congress official information in due time, of the moneys drawn by him from europe into the united states; which drawing commenced december, , and continued till january, ; and of the causes of making such drafts. . _resolved_, that the secretary of the treasury has without the instructions of the president of the united states, drawn more moneys borrowed in holland into the united states than the president of the united states was authorized to draw, under the act of the th of august, : which act appropriated two millions of dollars only, when borrowed, to the purchase of the public debt: and that he has omitted to discharge an essential duty of his office, in failing to give official information to the commissioners for purchasing the public debt, of the various sums drawn from time to time, suggested by him to have been intended for the purchase of the public debt. . _resolved_, that the secretary of the treasury did not consult the public interest in negotiating a loan with the bank of the united states, and drawing therefrom four hundred thousand dollars, at five per cent. per annum, when a greater sum of public money was deposited in various banks at the respective periods of making the respective drafts. . _resolved_, that the secretary of the treasury has been guilty of an indecorum to this house, in undertaking to judge of its motives in calling for information which was demandable of him, from the constitution of his office; and in failing to give all the necessary information within his knowledge, relatively to the subjects of the reference made to him of the th january, , and of the d november, , during the present session. . _resolved_, that a copy of the foregoing resolutions be transmitted to the president of the united states. mr. giles then moved that they should be referred to a committee of the whole house. mr. w. smith was decidedly opposed to referring those resolutions to the consideration of the committee of the whole house, because he neither viewed a discussion of them as necessary on the present occasion nor warranted by the nature of the inquiry into the secretary's conduct. it was trifling with the precious time of the house to lavish it on abstract propositions, when the object of the inquiry ought to be into the facts. he was satisfied that should the house once involve itself in an investigation of theoretic principles of government, the short residue of the session would be exhausted, and no opportunity remain for examining the charges themselves. those charges being made, it became the house, from a sense of duty to the public and justice to the accused, to proceed immediately to consider them. if the mover intended to apply the principles of the two first resolutions to the facts contained in the subsequent ones, it was unquestionably proper first to substantiate the facts, and then establish the principles which were applicable to them; but it was surely a reversal of order to spend much time in establishing principles, when it might happen that the charges themselves would be totally unsupported. he did not like this mode of proceeding, because it might tend to mislead the house; it was sometimes a parliamentary practice to endeavor to lead the mind to vague and uncertain results, by first laying down theorems from which no one could dissent, and then proceeding by imperceptible shades to move unsettled positions, in order ultimately to entrap the house in a vote which in the first instance it would have rejected. this mode of conducting public business, he considered as inconsistent with fair inquiry. the question was, had the secretary violated a law? if so, let it be shown; every member was competent to decide so plain a question. he could examine the proofs, read the law, and pronounce him guilty or innocent without the aid of these preliminary metaphysical discussions. if it were urged that the propositions are so plain and obvious that no time would be lost in considering them, he then begged leave to observe that all antecedent discussions of constitutional questions had never failed to occupy a large portion of their time, and that however self-evident the resolutions might at the first glance appear, a more critical attention would satisfy a mind not much given to doubt that they were by no means so conclusive as to be free from objections. though the position contained in the first resolution, as a general rule, was not to be denied; yet it must be admitted, that there may be cases of a sufficient urgency to justify a departure from it, and to make it the duty of the legislature to indemnify an officer; as if an adherence would in particular cases and under particular circumstances, prove ruinous to the public credit, or prevent the taking measures essential to the public safety, against invasion or insurrection. in cases of that nature, and which cannot be foreseen by the legislature nor guarded against, a discretionary authority must be deemed to reside in the president, or some other executive officer, to be exercised for the public good; such exercise, instead of being construed into a crime, would always meet the approbation of the national legislature. if there be any weight in these remarks, it does not then follow, as a general rule, that it is essential to the due administration of the government, that laws making specific appropriations should in all cases whatsoever, and under every public circumstance, be strictly observed. before the committee could come to a vote on such a proposition, it would be proper to examine into the exceptions out of the rule, to state all the circumstances which would warrant any departure from it, to whom the exercise of the discretion should be intrusted, and to what extent. did any member wish at this period to attempt this inquiry? he supposed not. let every deviation from law be tested by its own merits or demerits. the second resolution was liable to stronger objections. it might with propriety be questioned whether, as a general rule, the position was well founded. a law making appropriations may be violated in various particulars without infringing on the constitution, which only enjoins that no moneys shall be drawn from the treasury but in consequence of the appropriations made by law. this is only to say, that every disbursement must be authorized by some appropriation. where a sum of money is paid out of the treasury, the payment of which is authorized by law, the constitution is not violated, yet there may have been a violation of the law in some collateral particulars. there may even have been a shifting of funds, and however exceptionable this may be on other accounts, it would not amount to that species of offence which is created by the constitution. the comptroller of the treasury must countersign every warrant, and is responsible that it be authorized by a legal appropriation; yet it cannot be supposed that he is to investigate the source of the fund. one of the alleged infractions stated in the subsequent resolution, namely, the drawing part of the loans into the united states without the instructions of the president, evinces that the opposite construction is not a sound one. for suppose the fact proved, and suppose it a violation of the law, it certainly would be a very different thing from drawing money out of the treasury without an appropriation by law; for in this case, there would be no drawing money from the treasury at all, the money never having been in the treasury. mr. s. then, said, he should also object to referring the last resolution, which is in these words, "_resolved_, that a copy of the foregoing resolutions be transmitted to the president." the object of this resolution went clearly to direct the president to remove the secretary from office; the foregoing were to determine the guilt, the last to inflict the punishment, and both the one and other without the accused being heard in his defence. when the violation of the constitution was so uppermost in our minds, it would be indeed astonishing that we should be so hoodwinked as to commit such a palpable violation of it in this instance. the principles of that constitution, careful of the lives and liberties of the citizens, and what is dearer to every man of honor, his reputation, secure to every individual in every class of society, the precious advantage of being heard before he is condemned. that constitution, peculiarly careful of the reputation of great public functionaries, directs that when accused of a breach of duty, the impeachment must be voted by a majority of the house of representatives, and tried by the senate, who are to be on oath, and two-thirds of whom must concur before a sentence can pass, by which the officer is to be deemed guilty. the officer is to be furnished with a copy of the charge, and is heard by himself or his counsel in vindication of his conduct. such are the solemnities and guards by which they are protected, and which precede a sentence, the only effect of which is a removal from office. but if the house proceed in the manner contemplated by this resolution; if they first vote the charges, and send a copy of them to the president, as an instruction to him to remove the officer, they will violate the sacred and fundamental principles of this, and every free government. they will condemn a man unheard, nay, without his having even been furnished with the charges against him; they will condemn to infamy a high and responsible officer convicted by the representatives of the people, of a violation of the important trusts committed to him, without affording him one opportunity of vindicating his character and justifying his conduct. mr. murray said he was opposed to the reference of the resolutions to the committee of the whole. he had, as far as the time permitted, examined the several reports on which the examination depended, and was then ready to vote on them, though he confessed, from the intricacy which was inherent in such a subject, as well as from the vast variety of the detail involved, he had not had sufficient time for a complete investigation. nor did he imagine that any man who had not previously meditated on the subject for a length of time, and made choice of his ground of attack, could say he was completely master of the subject. some vote, however, was now rendered essential to the character, not only of government, but of the gentleman who presided over the finances of the country. but three days were left for this inquiry, and to finish a great deal of other business; and he thought that despatch which was usual in the house ought to be used in preference to the indulgence which a committee afforded. as to the abstract propositions, if it were necessary now to go into them, he thought it would be proper to decide on them first. he thought it most logical to lay down principles of reasoning before facts were developed. were they agreed to by the house, it would be under provisions and restrictions. they could not have the implicit force of axioms, but at most must be yielded to as wholesome maxims, the application of which must be frequently modified by a certain degree of discretion. with respect to all the other resolutions, he imagined they would, on examination, be found to be unwarranted by facts. he hoped the movers and supporters of the resolutions would not be gratified at so late a season by the house in resolving itself into a committee of the whole. the mode in which they were brought forward did not entitle them to much confidence. he said, a more unhandsome proceeding he had never seen in congress. it had been a practice, derived from the lights of common liberty, common right, and the first principles of justice, that whoever was charged with a violation of law on which a punishment ensued, should have some mode of answering to the charge. it had, in a recent instance, been the practice of congress, when an officer's conduct was even in the first instance inquired into, to afford the officer an opportunity of attending upon the examination on which his offence or his freedom from blame was to appear. he alluded to the conduct of the house when an examination took place relatively to the failure of general st. clair's expedition. suspicions were entertained that blame lay somewhere. a committee was appointed to examine. the three officers particularly concerned were, he understood, invited, as it were, to come before the committee, to explain, to interrogate, and to give information. though the secretary of war was not permitted to explain on this floor, justice and delicacy, and the most common principles of jurisprudence, to which we attempted to hold some analogy, demanded that he should be heard somewhere, and the committee was renewed for this purpose. the quartermaster general asked to be heard on this floor. though refused, he was permitted to attend that committee on whose examination his character as a quartermaster depended. were any man responsible as an officer to this house to fall under the suspicion of its members, a regard to decency and to the established rights of citizenship, would teach gentlemen to inquire formally before they hastily laid a charge on the table, to which they might move the assent of the house. but in this proceeding a legislative charge was gone into before inquiry had been instituted. every rule of justice, and all that delicacy which ought ever to attend her progress, had been disregarded, and in the very first instance, a number of charges are brought forward, not for inquiry, but conviction, which, if sanctioned by a majority of the house, are to be followed by the dismission of one of the highest officers in the government. this mode was as tyrannical as it was new, and if any thing could throw a bias against the resolutions, independent of inquiry, it was the partial and unjust form in which the proceeding had commenced. resolutions of conviction might rise out of the report of a committee of inquiry, who would act as a grand jury to the house, but could never precede it. he hoped the house would not refer to a committee of the whole what might be decided in the house with more despatch. mr. page in reply to mr. smith, spoke, in substance, as follows: mr. chairman: the more precious our time, the more readily shall i vote for a consideration of the first resolution; for i think it of more consequence that we should decide on it, than on any other before us. we find, from the inquiry which has been set on foot into the conduct of the secretary of the treasury, that he differs from the mover of the resolution in opinion respecting his powers, and the constitutional obligation he may be under of regarding acts of appropriation; it therefore must be the wish of the secretary himself, whether we agree with him or not; and it is our duty, as soon as possible, i conceive, to let our constituents know whether we approve, or not, of his opinion. the secretary himself, i think, confesses "that a strict adherence to appropriations, in certain cases, would be pusillanimity." he preferred, no doubt, the public good, which he thought he had in view, to a strict compliance with an act of appropriation. it becomes us, then, to determine whether we wish that the secretary shall hereafter be bound by our acts of appropriation or not. i cannot conceive that the rejection of the first resolution can alter the nature of the case before us, or in any manner confirm or invalidate the truth of facts which some gentlemen seem so apprehensive may lead to an impeachment. for my part, i keep in view the first resolution, without thinking a moment of the last, or the intermediate propositions. when they shall come under consideration, i shall be ready to show a proper attention to them. how the first resolution can be called an abstract proposition, i know not, when the nature of the last before us requires a decision on it. the secretary himself should desire it, and our constituents must expect it. if the committee of the whole shall be of opinion that appropriations ought to be sacredly regarded, they will agree to the resolution; if they think they may be dispensed with "in certain cases," they may amend the resolution, and qualify it so as to justify the conduct of the secretary. to call the resolution a preamble, and to object to it as such, appears to me as extraordinary as to call it an abstract proposition; for i have always thought it inconsistent with republican principles to object to preambles. i have remarked, sir, when they have been objected to, it became the representatives of a free people to show on what principles and with what views their laws are enacted, and, not in a dictatorial manner enact that it shall be so and so. the framers of our constitution have set us an example of an excellent preamble; and, as it has been remarked by several members, this house has occasionally used them; i think, therefore, that none of the objections to the commitment of the first resolution are of sufficient weight to induce the house to agree to the motion for striking out the two first resolutions. the question was now taken on committing the first two resolutions, and negatived-- to . on the question of referring the last, only fourteen members voted in the affirmative. _ordered_, that the third, fourth, fifth, sixth, seventh, and eighth resolutions contained in the said motion be committed to a committee of the whole house immediately. the house accordingly resolved itself into the said committee; and, after some time spent therein, the committee rose, and had leave to sit again. friday, march . _official conduct of the secretary of the treasury._ the house again resolved itself into a committee of the whole house on the third, fourth, fifth, sixth, seventh, and eighth resolutions contained in the motion of yesterday, respecting the official conduct of the secretary of the treasury. the third resolution being under consideration, in the words following, viz: "_resolved_, that the secretary of the treasury has violated the law, passed the fourth of august, one thousand seven hundred and ninety, making appropriations of certain moneys authorized to be borrowed by the same law, in the following particulars, to wit: " . by applying a certain portion of the principal borrowed to the payment of the interest falling due upon that principal, which was not authorized by that or any other law. " . by drawing part of the same moneys into the united states without the instructions of the president of the united states." mr. barnwell.--mr. chairman, before i proceed to discuss the observations which yesterday fell from the gentleman who introduced the resolutions now before us, i cannot refrain from saying that i am extremely happy that, in passing through the medium of that gentleman's examination, this subject has changed its hue from the foul stain of peculation to the milder coloring of an illegal exercise of discretion, and a want of politeness in the secretary of the treasury. i feel happy, because i always am so when any man charged with guilt can acquit himself; and the more so now, when a man in a high responsible office, and high in the estimation of his countrymen, can reduce a charge from a quality calculated to have excited an alarm, even in pandemonium, to such a shape as i fancy will scarce serve to satisfy the uncommon curiosity which it appears to have excited. as i have never been in the habit of taking notes, i shall depend upon memory in answering the gentleman from virginia; although i imagine, as that gentleman usually sticks very close to his point, whatever it may be, that, in pursuing his charges, i shall substantially answer his arguments. in commenting upon the two first resolutions, to which i am by order confined, i shall consider, in the first instance, what regards the right of drawing money into this country. the gentleman appears not to have considered the law properly, for there cannot be a doubt that the president had a right to make what arrangements he pleased, in order to attain what he might consider a proper modification of the debt due by the united states abroad. he might have borrowed the money here, or have paid it here; he might have borrowed the money in england, or wherever he thought fit. i will ask the gentleman by what precise authority he borrowed the money in amsterdam and antwerp, and paid it in paris? certainly by none but that discretion which has been depended upon to modify the debt in the manner most conducive to the interest of the united states. i take it, then, for granted, mr. chairman, that the right of the president to draw the money borrowed here, or to send it any where, must be conceded. the question will then arise, whether the secretary of the treasury had a right to do this or not, and whether this has not been done without, nay, against the instructions of the president? i really consider this as one of the most extraordinary cases that i have ever known exhibited. let us consider its form. a highly important trust, of no less import than the discretionary use of fourteen millions of dollars, is placed in the president of the united states; he, by a general commission, and by special instruction, deputes this power to the secretary of the treasury, stating that he is to conform to these and whatever instructions he might from time to time give him. let any man seriously examine these powers, and i am of opinion that the secretary, under these, had a right to draw, if he thought proper, unless instructed to the contrary; for the president conveys a complete power to modify the debt, provided that it should be, with all convenient despatch, applied to pay the principal and interest due to france; for where the payments are to be made is certainly left to the secretary. if this has not been exercised advantageously, this is another circumstance which the gentleman himself has not questioned. but, says the gentleman, the secretary, under these instructions, had no special authority to draw; notwithstanding which, he began to draw in , and has continued to draw, at different times, into this country the enormous sum of three millions of dollars, and therefore he must have done this without, nay, against the instructions of the president, who, it is presumed, having delegated this great trust, has never, for three years, inquired into the performance of it. can this be the inference of common sense? can this be the inference of the experience which we have had of the president, one of the prominent features of whose character always has been an industry to investigate particulars, as remarkable as his sagacity to frame generals? if, then, instructions have not been given, or have been exceeded, was it necessary for us to come in aid of the president, he who by our law has the power, which we ourselves cannot exercise, of removing any of the executive officers at pleasure? it certainly cannot be necessary; for, as this officer continues to act, we must conclude that he has either acted by instructions, or in such manner as to have given satisfaction to his principal without them. really, mr. chairman, i cannot but believe that if suspicion had not led the gentleman from virginia astray, the usual correctness of his understanding would have prevented him from pursuing such an _ignis fatuus_ as this. mr. w. smith regretted that so important an inquiry had been instituted at the very close of the session, when the members were thronged with business of an indispensable nature, and it was scarcely possible for them to bestow that attention and deliberation which the nature of the subject called for. but, while he expressed this regret, he assured the committee that it was mingled with much satisfaction, in finding that the vague charges of mismanagement, with which the public had long been alarmed, were at length cast into a shape susceptible of investigation and decision. previous to an examination of the specific charge then under consideration, he claimed the indulgence of the committee in offering a few preliminary remarks, which, though they did not bear precisely upon the charge itself, yet were intimately connected with the subject-matter of the inquiry, and were justified by the general remarks of gentlemen who had preceded him. in recurring back to the origin and progress of this examination, it must appear somewhat surprising that that which, in the commencement of the session, was sounded forth as gross peculation, now turned out to be nothing more than a mere substitution of funds, and that that which was announced as abominable corruption, was dwindled away into a mere drawing of money from europe into this country, to be applied here according to law. whatever credit might be due to the motives which had originated this inquiry, every member would concur in the sentiment, that in a government constituted like that of the united states, which had nothing but the public confidence for its basis, premature alarms and groundless suspicions respecting the conduct of public officers were pregnant with the most injurious consequences. this opinion was more peculiarly applicable to the important station of secretary of the treasury. intrusted with the management of a large revenue, and necessarily clothed with some latitude of discretion, it was to be expected that he would excite the jealousy of the public vigilance; but as long as he kept in view the injunctions of law, and the public good, his reputation was entitled to that security which is due to every citizen. an officer, intrusted with the care and distribution of public moneys, is generally looked at with a watchful eye; mankind are too prone to suspect the purity of his conduct; slight insinuations are but too often sufficient to injure him in the public estimation. such being the natural propensity of things, it doubtless behoved those who wished for tranquillity in the country to withhold charges not clearly warranted by proof--to suspend animadversions which were not likely to terminate in conviction. a contrary proceeding had an inevitable tendency unnecessarily to alarm the public mind, to instil into it suspicions against the integrity of men in high stations, to weaken their public confidence in the government, and to enervate its operations. there was something remarkable in the nature of the present allegations against the secretary. taking them all into view, they presented nothing which involved self-interested, pecuniary considerations; and in this, they essentially differed from accusations against financiers in other countries, to whom motives of interest were generally ascribed as the source of their peculations. to the secretary, no such motive was imputed; notwithstanding former insinuations against his integrity, the sum of all the charges now amounted to nothing more than arrogance, or an assumption of power, or an exercise of unauthorized discretion. mr. s. proceeded next to examine the charge under consideration. it consisted of two items: the first, the application of a certain portion of the principal sum borrowed in europe to the payment of interest falling due upon that principal, which it was contended was not authorized by any law; the second, the drawing part of the same moneys into the united states, without the instructions of the president. the first item of this supposed violation of law appeared of so frivolous a nature that it did not merit much discussion; at any rate, it was more an objection of form than of substance. if he comprehended well the purport of the charge, it was nothing more than this--that the secretary having moneys at his disposal in europe applicable to the purchase of stock in this country, and having at the same time moneys in this country applicable to the payment of the interest abroad, had substituted the one for the other. he had paid the foreign interest out of the foreign funds, and he had purchased stock with the domestic funds. this was the heinous offence with which he was charged, and which was thought sufficient to remove him from office. if the moneys in europe might have been drawn to this country by bills, for the purchase of the debt, it might have equally been drawn here, by ordering the application of a sum in europe, for a purpose which would be represented by an equal sum here, to be applied to the purchase. the substance, not the form, is to decide whether this mode of negotiating the matter was proper. suppose bills had been ordered to be drawn on the commissioners, and remitted to them on account of the foreign interest, would not this have been as regular as to draw them for sale? did the execution of the law require that the secretary, having funds in europe with which the foreign interest might be discharged, should nevertheless remit moneys abroad for that purpose, and then, having funds in this country with which the purchases of the debt might be made, should draw bills to bring the foreign funds here? was there any necessity for this complex operation, for the expense of remittance, the probable loss on the sale of bills, the loss of interest while the money was _in transitu_, when the whole matter could be negotiated by the simple and economical mode pursued? so far from this arrangement being a ground of censure, mr. s. asserted that, had the secretary pursued the other mode, he would have been animadverted upon with great severity for such an extraordinary course. he would have been accused of ignorance of his duty, and every loss incidental to the transaction would have been charged to his account. the second division of the charge, being of more magnitude, required a more lengthy discussion. this instance of violation consisted in a supposed deviation from the instructions of the president, or a supposed acting without any instruction whatever. it was, however, begging the question; it was taking for granted that which did not appear, and which ought not to be presumed. and here, mr. s. observed, the gentlemen on the other side had entirely reversed one of the fundamental maxims of criminal jurisprudence, which declared that innocence should be presumed and guilt proved; whereas they had presumed guilt, and called upon the accused to prove his innocence. and what was the slender basis on which the presumption was built? why, say the gentlemen, the instructions from the president to the secretary, which have been laid before the house, relate only to the payment of the french debt, and convey no authority to draw any of the foreign loan into this country for the purchase of stock; and hence they infer, he had no authority for this latter purpose. to comprehend the fallacy of the inference, it was only necessary to recur to the laws, and to the president's commission to the secretary to negotiate the loans. two acts of congress had passed; one on the th of august, the other on the th of august, . the first authorized a loan of twelve millions of dollars, applicable to the payment of the french debt; the other, a loan of two millions, applicable to the purchase of the domestic debt. the president's commission to the secretary embraced both acts and both objects, and under that commission one loan was negotiated applicable to both objects. true it is, that the president's first instructions were confined to one object, namely, the french debt; but the inference is not that no other instructions were given, and that the secretary acted without authority; but the very reverse, that the president either left the other object to the general discretion of the secretary, who was, _ex officio_, the proper agent and his representative; or that he reserved it for subsequent and occasional instructions. this inference must be the true one; first, because a contrary supposition would impute to the president an illegal intention, that of applying all the moneys borrowed under both acts to the object of one only; secondly, because the commission extending to the borrowing fourteen millions of dollars, and embracing both objects, and the instructions being confined to twelve millions of dollars, and to only one object, it followed that the other either was left to discretionary management, or to after regulation, for the law enjoined the execution of both. if presumption, then, was to govern, the more natural presumption was, that the officer acted according to some general discretion reposed in him, or according to instructions from time to time given. these instructions may have been verbal, as well as written. the written instructions given in the first instance were evidently confined to the object of the first act. the necessary conclusion is, that the application of the moneys borrowed under the second act was not meant to be included in that instruction, but was left to be regulated by a general discretion, or by occasional directions, verbal or otherwise. having gone through this resolution, mr. s. observed, that, if there was as little of criminality in the subsequent charges as in that which he had just discussed--and from an attentive examination he sincerely believed it--he was satisfied that, notwithstanding all the severe animadversions within, and all the virulent calumny without, the walls of congress, the conduct of the secretary would come forth chaste and unblemished. instead of any thing being detected which would disgrace pandemonium, nothing could be chargeable to him which would sully the purest angel in heaven. whatever difference of opinion might exist as to the wisdom and benefit of his measures, he was confident in saying, that in every thing the secretary had done, he had been guided by principles honorable and patriotic, and he trusted that a very great majority of the committee would, by their votes, evince the same sentiment. the sword of justice, it was said, ought at times to be taken from its scabbard to keep great public functionaries within the pale of the law; but it should be remembered that if justice had its sword to punish the guilty, it had likewise its shield to protect the innocent. if the secretary had committed a wanton violation of law, let the sword be drawn forth for his punishment; but if he has pursued the dictates of an enlightened patriotism, the committee were called upon to raise the shield for the defence of a faithful officer. mr. findlay addressed the chair as follows: mr. chairman: being strongly impressed with the importance of our time, which is now so near an end, though i had the honor of seconding the resolutions, i took no part in the debates of yesterday; nor will i now detain you with replies to many of the arguments which have been offered against the resolution now under discussion. upon one argument frequently introduced by the gentleman last up, viz: the greatness of the secretary's character, &c., i will only make a single remark. there is no character officially known in executive departments of this government, who merits pre-eminence, or to whom a degree of greatness can be ascribed, but in proportion to his prompt execution of the laws, and the attention with which he discharges the duties of his office. from this rule, the president himself is not exempt, much less a subordinate secretary, whose appointment is during pleasure, and the duties assigned him of a changeable and temporary nature. but to come to the resolution before us. the first questions that offer themselves, are: was the money in question appropriated to special and distinct purposes? did the secretary of the treasury apply the money to other uses than the law directed? in answer to the first, it is only necessary to advert to the law authorizing the loans. the law authorizing the twelve million loan, appropriates whatever amount may be borrowed solely to the payment of debts then due to france and holland. the law authorizing the two million loan directs the application thereof to the redemption of the domestic debt, in aid of about ---- dollars, arising from the revenues previous to the st of january, ----. these appropriations are precise, distinct, and unconditional. with respect to the uses, no room was left for the exercise of discretion. the will of the legislature was express and clearly defined; it left no room for evasion, nor any excuse for mistake; nor did the president transfer to the secretary any other authority or instructions than what the law expressed. but the gentleman from south carolina says, that the presumption is, that the president did give other instructions than he has communicated; that, in this case, presumption should be admitted as conclusive testimony, and that neither the secretary nor the president is obliged to communicate the instructions or authority to us. the gentleman is a lawyer: i will appeal to himself; i will appeal to all the professional members on the floor, whether presumptions can be admitted as proof, where, in the nature of the case, positive testimony can be procured. surely, in courts of justice, positive testimony is always required, and presumptive is rarely admitted; but in this case, the presumptive is by the gentleman set in opposition to the positive. however, this is not the case in fact. the president did give commission and instructions, and those are fully communicated to us. if he conceived we had no right to demand them, he would have told us so; if he had kept any part of them back, he would have informed us, and assigned his reasons for doing so. i presume that the president has acted the part of a candid, honest man; the gentleman presumes the reverse. the suggestion that this house, which has the exclusive right of originating the appropriation of money, has no right to be informed of the application of it, is so novel and extraordinary, so inconsistent with every idea of propriety and good government, that it requires no reply. did the secretary apply the money borrowed in europe agreeably to the legal appropriations and the instructions of the president? no, he did not; though some of the gentlemen do not acknowledge this, yet the secretary has clearly acknowledged it himself, and has filled his reports with labored and ingenious apologies for so doing. he has suggested a variety of motives, and taken infinite pains to charm us with the mighty public advantages resulting from his doing so. he acknowledges combining the loans, and directing the application of them, in the very offset, in a way contrary to law; he acknowledges having drawn to this country, and applied in europe, to uses for which other moneys were appropriated, near $ , , . out of this he has paid upwards of $ , of the french debt, to st. domingo. i do not complain of paying the interest due in europe out of the money drawn here. the gentlemen apply the force of their arguments, with great attention, to support or apologize for this part of the secretary's conduct, as if against this only the charge in the resolution lay. but we do not object to applying that money in holland, which ought to have been brought here, if the money which, according to the appropriation, should have gone to holland, had been put to the use here for which the other was intended. a simple exchange of money for the purposes of conveniency or economy, is properly one of those cases to which ministerial discretion may safely be extended; but the question before us is, the money has not been replaced. the amount of money has not been applied to the uses intended; consequently, the appropriation has been disregarded. it is acknowledged that though there were upwards of $ , , of the domestic sinking fund, and upwards of $ , , drawn from europe, besides the moneys applied to the relief of st. domingo; yet, when these inquiries began, there was not $ , , applied to the redemption of the public debt, and even yet the whole of the domestic appropriation has not been applied to the sinking fund, notwithstanding that the public debt is now, and has for some time been under par. we have it on record that the secretary never informed the commissioners of the drafts he made on europe, although the fund was exclusively to be at their disposal. mr. giles rose.--he was sensible that he stood in a peculiarly delicate situation, in which nothing short of the public good could have induced him to place himself. if a public and highly responsible officer had violated the laws, it was necessary that he should be called to an account for it; and to determine whether in the instances before the house, he had been guilty of that violation, it is necessary to compare the testimony with the facts alleged in the resolutions before the committee. he first adverted to the law authorizing the president of the united states to borrow twelve millions of dollars for the purpose of paying the foreign debt. on this, he remarked that the authority of borrowing was expressly given to the president, no doubt, with an eye to the personal virtues of the character who fills that office; the loan is also directed to be made solely for the purpose of paying the public debt. here he remarked, that in every appropriation law, the appropriation is always emphatically mentioned, which is an evidence that the legislature intend to remain the sole judges of the applications of money. he read a letter from the secretary of the treasury, who was employed by the president to negotiate this loan, to mr. short, the secretary's foreign agent for this purpose, dated the th of may, , in which the secretary informs mr. short, that one million and a half of the money he had obtained on loan, was destined for france; of which sum he was authorized to apply immediately one million, but to reserve eight hundred thousand florins to answer such subsequent directions as he should receive from the president. he cited this passage to show that the million and a half which had been obtained on loan, was destined for france. to remove any doubt that might remain upon this head, he referred to a preceding letter from the secretary to mr. short, dated the th of april, in which it is also expressly said, that of the two millions borrowed, one million and a half is intended for france, the remaining half million to wait for further directions. having established this point, he adverted to the resolution before the committee, which says, that he applied a portion of the principal borrowed to the payment of the interest falling due upon that principal, without being authorized so to do by any law. to show this, he referred to a report of the d of january, containing sundry statements respecting foreign loans. that part of the report to which he alluded in proof of the fact, stated in general terms, a sum paid on account of foreign loans, and this sum was taken from the principal borrowed, and amounted to , , florins. if his statement was accurate, the fact he wished to establish was proved. he wanted more light, he confessed, than he could collect from the secretary's official communications. he should not go into the examination of what circumstances might have induced the secretary to deviate from the positive injunctions of the law, or to make any remarks upon his conduct, until he had heard what gentlemen would say to controvert the fact he wished to establish. another fact of consequence he wished to prove, viz: that part of the money obtained on loan in europe had been drawn over, though not wanted here for any public purpose. this appeared from other papers. he turned to the instructions from the president to the secretary of the treasury, authorizing him to borrow $ , , , in which the secretary is cautioned to keep in view the two several acts authorizing the loans, and the distinct conditions they contemplate. by the instructions of the president, the secretary is authorized to apply the moneys. in the execution of the trust confided to him, the president generally directs him to employ mr. short to negotiate the loans, to borrow in the manner prescribed by the acts, and to discharge immediately the arrears of interest due to the french, to which purpose and to the complete payment of that debt the twelve million loan was altogether appropriated. if this money, then, was shown to have been drawn here, it was neither warranted by law nor by the president's instructions. the secretary did begin to draw as early as , and had continued to draw from time to time, till , without giving notice of this to the legislature. having shown that the secretary had drawn without authority to draw, he next proceeded to consider the purpose of those drafts. the money thus drawn for was not, he stated, applied to the purchase of the public debt. no money obtained from foreign loans was thus applied until this year; the domestic resources appropriated to this object were never exhausted. these were the facts involved in the first resolution, which he wished to establish. before he proceeded further into the discussion, he wished to hear what gentlemen had to say to controvert them. he wished to see justice done in the matter before the house; he wished justice, also, to be tempered with moderation and mercy; and if gentlemen could show the necessity for deviations from positive law, which he had endeavored to point out, it would exonerate the secretary from a very great share of blame. mr. barnwell called for the reading of certain parts of the two acts authorizing the loans. one of the th of august, authorizes a loan of $ , , , to be obtained without limitation as to the interest, for the purpose of paying the foreign debt; the other is of the th of august, for $ , , , the interest to be not more than five per cent., and for the purpose of reducing the domestic debt. mr. sedgwick, to disprove that the drafts alluded to have been made without the knowledge of the legislature, called for the reading of the president's speech to both houses on the th of december, , and a subsequent report of the secretary of the treasury to the same point. by this, it appeared that the power of borrowing, having been exercised under the joint authority of the two acts, the secretary states a difficulty that had occurred to him on the subject of the drafts alluded to. the money having been obtained on an interest of five per cent., exclusive of douceurs, he wished the legislature to determine whether it might strictly be considered as borrowed under the second act, which limited the interest at five per cent. this was sufficient, he conceived, to show that the legislature were not ignorant of those drafts, and an act was passed solving the secretary's doubt, and sanctioning his construction of the law. mr. giles remarked that he had drawn before that sanction was obtained. mr. fitzsimons observed, on the first charge in the resolution, that, as the interest of the money borrowed in europe is payable where borrowed, it was economical in the secretary to pay that interest with moneys there, which were to be drawn here, and replace the sum by taking the amount from the funds here destined for that payment. a financial operation of this nature is simple, and saves the trouble of drawing with one hand and remitting with the other. he conceived there was no just foundation for the first charge. mr. laurance said, that when the resolutions calling for information from the treasury department were first brought forward, the public mind was impressed with an idea that there were moneys unaccounted for. this charge is now dropped, and it is honorable to the officer concerned that, after much probing, nothing is found to support it. the inquiry now is, whether a debt was paid out of this or that fund. he did not admit the fact, that it was paid out of any other moneys than what law strictly warranted. he went into a history of the subject from its origin. he stated the nature and purposes of the loans. there was nothing to prevent the president from consolidating the two loans, provided such an arrangement did not interfere with the purposes intended by them. the president employed the secretary to obtain the loans under the joint authority of both acts, as it was found that the object could best be carried into effect by such an arrangement. the money thus borrowed became subject to the appropriations of both acts, and not exclusively for the payment of the foreign debt. then, as part of that money was subject to be drawn here for the redemption of the domestic debt, and the interest of the loan was to be paid with domestic funds, it was perfectly reasonable to avoid further drafts and remittances to pay the debt there with money there, and replace it here with money already here. the fact stated in the first part of the resolution is, by this plain statement of the case, substantially refuted, and appears altogether unfounded; but if the fact is proved, what is implied? no injury to the interests of the community; the intention of the legislature has been in every point fulfilled. if the secretary had acted differently, he would have been guilty of an absurdity, and to blame for sacrificing the public interest and neglecting the spirit of a law for a strict and unprofitable observance of its letter. mr. sedgwick, by adverting to the speech of the president and report of the secretary, had shown that the legislature had been made acquainted with the drafts, and sanctioned future ones on the same principles. the latter part of the first resolution criminates the secretary for making them without instructions from the president. even if this was the case, he did not know whether this was really reprehensible. he defended it on the ground, that the secretary is the officer appointed by law to superintend the finances and apply all moneys agreeably to appropriations. he took a view of the subject, as stated by mr. laurance, and concluded by asking, whether, if the secretary was found, on a critical examination, to have deviated in a trifle from the letter of the law, such a deviation was sufficient to warrant the alarm's being sounded from st. croix to st. mary's, and whether the precious time of the house, at the close of the session with a vast variety of business on their hands, should be taken up in so unprofitable and frivolous an investigation? mr. giles said, the transaction alluded to by the gentleman to controvert the fact laid down in the first part of the resolution before the committee was not immaterial, as they had endeavored to show it. it was not merely a financial operation to avoid the necessity of drawing and remitting. the truth was, that the secretary had drawn over nearly $ , , . the president's authority was limited to $ , , . mr. laurance was of opinion, that if the president, or his agent, had drawn the whole amount of the money obtained under both loans, he could not be said to have gone beyond his authority. he was authorized to borrow $ , , to pay the arrears on the foreign debt, and to modify the whole. in the execution of this trust, he might have found it advisable to draw to the country the whole of that sum. it had been found advisable to draw for part, and to pay the french by shipping produce to st. domingo. if the money expended for supplies to st. domingo is deducted, the balance will be found less than $ , , . mr. l. contended, that the interest of the moneys borrowed was not paid out of the principal of the loan, as set forth in the first charge of the resolution before the committee. if gentlemen would attend to the history of the transaction, they would find this strictly true. this interest was paid out of the moneys borrowed for the reduction of the public debt, and not out of those intended to pay the french, and the funds appropriated for the payment of that interest were here to replace the former and be applied as those were appropriated. he referred to the president's speeches at the commencement of the two last sessions, to show that the loan was obtained under the joint authority of both acts; and adverted to the act of congress, in consequence of a doubt suggested by the secretary, explaining that the moneys first obtained might be considered as borrowed under the act authorizing the two million loan. having shown the first charge in the resolution to be unfounded, he turned to the second. the secretary is accused of drawing moneys to this country without instructions. in this transaction the president must be considered as the principal, and the secretary the agent, or the secretary must be looked upon as the principal. if the president is the principal, and he be authorized to obtain the loans, as soon as the money is obtained it naturally falls under the direction of the financier; but if it be contended that the president was to have applied the moneys as well as to borrow them, then we have nothing to do with the agent; that agent is accountable to his principal, and as this principal is not called to an account by the legislature for any improper exercise of discretion, he must be considered as having acted strictly within the law. if the secretary is considered as the principal, (and by a strict attention to the law, he believed, it would be found so, for the president is by it authorized to borrow, and it is not expressed who shall apply the money,) then it was not one of the duties of the secretary to procure the instructions of the president; being the principal, and consequently having the direction of the money borrowed, he is made the judge of the time of drawing, to fulfil the intention of the law. was the money, he asked, to have remained in the hands of the banker in europe? since it was borrowed for the purchase of the public debt, the sooner it was drawn over the better, and the secretary having the direction of those moneys, could do it without consulting the president. he proceeded to show, however, that the secretary had by no means acted entirely without regard to the president's instructions. his letter to mr. short, which had been read, expressly says, that he is waiting for instructions from the president, and the only instructions brought forward clearly show, that he did not act without them. on this occasion it was not necessary, he conceived, that all the private communications between these two officers should be brought forward; indeed, many of the instructions might have been verbal, and of a private nature. another proof lies before the committee, to show that the secretary did not act independent of instructions. a report of the secretary mentions that some matters relative to the loans were under consideration of the president of the united states. this document, the gentlemen were in possession of when they framed the resolutions; and it, in his opinion, left very little ground indeed to suppose that the secretary had acted without instructions. mr. mercer next rose. none of the communications from the secretary of the treasury had removed his suspicions relative to the transactions of that department. what had fallen in the course of the discussion, had not removed his doubts. he confessed himself more at a loss than ever to account for the conduct of that officer. to judge of the propriety of his conduct, it was necessary to consider what his duties are, and investigate whether a necessity existed to justify the drawing complained of. gentlemen, in their arguments, had alluded to some observations that had fallen from him on other occasions expressive of his opinion, that there had been corruption in that department. this opinion he still entertained. he suggested that some irregularities had taken place as to the money appropriated to the sinking fund. this might be the fact, and his suspicions were sufficiently urgent to warrant him in suggesting that it might be possible. at the close of , he stated there was a balance of cash in the treasury of $ , , , and the bonds due in the course of the present year would produce a sum of about $ , , . yet a proposition was made in the house, predicated on a total want of money in the treasury, to borrow $ , in addition to the $ , already borrowed of the bank. [here mr. boudinot interrupted the member, as being out of order. the chairman, conceiving mr. mercer's remarks to be introductory to, and connected with the observations he intended to make on the resolution, declared him in order.] mr. mercer proceeded to show, by sundry statements and calculations, that there was no necessity for this loan of $ , . the house, he said, to discharge their duty, should be satisfied how the money appropriated was applied, before they consented to repeated additional appropriations. when calls for information had been made by the house, with a view to comply with this their indispensable duty, the secretary had thought it sufficient to balance money actually received, by calculations of sums that would probably be wanted agreeably to appropriations. were dollars, he asked, to be balanced by absolute appropriations? can things certain be balanced by things uncertain? actual expenditure would alone balance actual receipt. appropriations founded only on uncertain calculations could not show the money actually laid out. he adverted to some calculations made to ascertain the probable expenses of the war department. [here the member was again called to order, and was declared out of order by the chairman.] mr. m. confined his observations more immediately to the resolution before the committee. it had been said, that the interest paid was paid out of moneys that were to be drawn to this country, and were replaced here by funds from the domestic resources originally appropriated for that object, and that the dead letter of the law, if any part of it, had alone been violated. he contended there had been an essential violation. the sums drawn for and appropriated to reduce the public debt, were not applied to that purpose; the domestic resources appropriated to that object, never were exhausted. if this is the case, conclusions surely unfavorable to that officer must naturally follow. he proceeded to make some remarks on the question, whether the secretary had acted under instructions from the president. it was disagreeable, he premised, to criminate the character of any officer. he bore a great respect for the president, for his virtues, talents, and services, but however grating to his feelings it might be to find fault with any part of his conduct in this matter, he was unable to discharge his duty under his present impressions, unless he avowed that he conceived that officer had violated the law, though he allowed, without intention, by not inquiring into the subject, while transacting, as it was his duty to do. he must declare that he saw no proof that the secretary had acted under the president's instructions. on the contrary, he saw the reverse, there was even no presumptive proof of the fact. the house has called for information as to the extent of the authority delegated by the president to the secretary. either the secretary has produced the proof of this authority, or he has not complied with the order of the house; it does appear that he has gone beyond it in making the drafts complained of. the president directed that the proceeds of the loan be immediately applied to pay the french; yet a great portion of that money was brought over here. it was said that he might have brought the whole here if he chose and paid it to the french here. this argument goes on the presumption that the president might do wrong without incurring blame. but the president expressly directed it to be paid immediately to france; and the house had no right to presume that he did direct the money to be drawn here, when proof to the contrary appears. upon the whole, he concluded that the law had been broken in letter and substance, and that the secretary had acted without proper instructions from the president. mr. livermore observed, that the charge against the treasury department was at first well calculated to beget serious alarm. when misapplications of the public money are sounded in the public ear, all feel interested, knowing, that what affects the public purse, must in a degree affect the purses of each private individual. in the present stage of the subject, he was happy in being able to felicitate himself and his fellow-citizens, that even should the whole of the charges contained in the resolutions be proved, it would not appear that they had lost a farthing by the conduct so loudly complained of. what is the charge? that the secretary has paid an interest that was justly due; why then, he presumed we should not have it again to pay. if the secretary has paid what was due, what then is the complaint? it was surely not intended that it should not have been paid. this was not the intention of congress; for they passed an act providing funds for its payment. the secretary was then right to pay it. but, it is said, he paid with the wrong money. he saw no harm in not paying it with the very dollars appropriated, and approved of the operation, which saved drawing with the one hand and remitting with the other; in this there was no crime committed, no loss incurred. it appears, on the contrary, that something was gained by it. so far, then, he was clear, no law had been violated, nor was any rule of propriety departed from. he then touched upon the secretary's disputed right to draw. he contended, that he had that right. the loans were obtained under the joint authority of the two acts. it was said that more than two millions, the amount appropriated for the sinking fund, were drawn over; but, he insisted, he might have drawn the other twelve millions, if it had been for the public interest so to do. the french wished to be paid here, and it being no loss, but rather a profit, to comply with their wish, where was the harm in so doing? if any public loss had been incurred owing to these drafts, then blame would lie. he concluded, by expressing his hearty approbation of the conduct of the officer who is criminated by the resolutions, and declared it as his firm intention to give them his negative. mr. hillhouse argued, that the interest paid, was not paid out of the $ , , loan, and that the drafts were made agreeably to the directions of the president. he showed this by the documents which had been already referred to. he put in a clear point of view the propriety of avoiding the expense and risk of drafts and correspondent remittances, and concluded by giving his approbation to the conduct of the secretary in the transactions complained of, and by expressing it as his firm belief that a majority of the committee, from the evidence before them, would undoubtedly be of opinion that the charges brought forward are unfounded. mr. sedgwick rose to correct a mistake of mr. mercer's. the gentleman had asserted, that the secretary had drawn on europe, before the loan, obtained by the commissioners under the old government, was ratified. this was not the case. the loan had been ratified in pursuance of the provisions of the act authorizing it. the president in his speech, december , , says, "that agreeably to the powers vested in him at the last session, the loans in holland had been completed." by existing acts of the legislature, and from express communications from the secretary of the treasury, it appears, that all the moneys borrowed were deemed borrowed under the joint authority of both acts, and not to be solely appropriated for the payment of the foreign debt. mr. mercer explained, that he had said, that the secretary had drawn from the loan obtained under the authority of the old government, before said loan was legalized by law. if the legislature had the right to legalize it, they had the right to reject it. mr. lee next rose. he observed that as he found himself under the necessity of differing from his friend who had moved the resolution, with whom he generally agreed in opinion, and was accustomed to act, he begged the attention of the committee for a few minutes. to determine whether the secretary of the treasury had acted legally, it was necessary to examine whether the authority from the president and his subsequent instructions authorized him to consolidate the loans under the acts of the th and th august, . on this question mr. l. observed, that there seemed to be no objection to such a construction, except that which arose from the difference of interest allowed by those acts; that the first loan was commenced without any regular authority by a company in amsterdam; that it received its authenticity from the acceptance of the secretary of the treasury. the interest and douceurs on this loan amounted to more than an interest of five per cent., which was the only premium contemplated by the act of the th of august. it could consequently be accepted only under the act of the th of august, which gave no limitation to the interest which was to be allowed. the money seemed therefore solely applicable to the payment of the foreign debt. from his report of the th of february, , the secretary himself seemed to have had this impression; congress seemed also to have this impression as on the d of march following they passed an act authorizing the application of this loan to the object of the act of the th of august, . after the d of march, , therefore, the secretary of the treasury had a right to bring this money to america for the purposes of the sinking fund. the interest of the foreign debt becoming due, for which domestic revenues were pledged, he thought it prudent to pay that interest out of this loan, relying on the domestic revenues to replace it for the purposes of the sinking fund. this was a mode of bringing the money here, and he was not limited in his discretion as to the mode; and therefore had a right to follow that which appeared to him most advantageous. the paying of the foreign interest out of this loan was made after the d of march, . mr. l. had no doubt as to the legality of all the proceedings relative to moneys drawn to this country subsequent to the third of march, ; even the moneys borrowed for the foreign debt, because a higher interest than five per cent. was stipulated for, on any of the subsequent loans, and because the president, in his instructions to the secretary, leaves the mode of paying the foreign debt to his discretion. if he judged it for the advantage of the united states to bring this money, in the first place, to america, the legality of such a measure cannot be questioned, though the economy and wisdom of it may not be admitted. on this point, mr. l. acknowledged, that he had not time to examine minutely all the statements and reports of the secretary to judge of those exigencies which induced the drawing of all the money which had been drawn to america. whether it had been consistent or not with the interest of the united states, mr. l. was of opinion, that the secretary had legally a right to bring all the money he had drawn for to america, except what was drawn prior to the third of march, . this money was drawn out of the first loan; it was drawn, as declared, for the sinking fund; the first loan, for the reasons before stated, could not be applied, and consequently, till the act of the d of march, , this money could not be legally drawn for the sinking fund. perhaps this act caused the irregularity of this proceeding. but is not the secretary of the treasury subject to blame? mr. l. observed, he thought he was not altogether free from it. at the meeting of congress on the th day of december, , the president in his speech informed both houses, that the first loan had been accepted, and that the secretary of the treasury had directions to lay the particulars before them. but what did he do? on the th of december following, he began to draw money on account of this loan to america, for the sinking fund; though from his report on the th of february, , he appears to have had a doubt as to the legality of this proceeding. he delayed giving information, in conformity to the president's speech, till a few days before the dissolution of congress. this conduct, mr. l. said, seemed to argue a distrust of the legislative councils. mr. l. dilated on the necessity of the purest and most confidential communication between the secretary of the treasury and the legislature, and said, though he could not agree to the resolution then under consideration, there was one, subsequent to it, relating to this point, which he was sorry to find himself under the necessity of voting for. mr. boudinot considered it as the duty of the committee in the discussion of the charges brought forward to confine themselves strictly to the points in question. the present examination differed from ordinary legislative business. specific charges are brought forward against a highly responsible officer; the facts brought forward to support those charges should be understood and considered, to form a right judgment on them. the secretary is charged with having violated a law, by paying the interest due on a loan out of the principal of that loan. he went into some statements and calculations to show that the money paid on account of foreign loans, as stated in official documents, could not have been paid on account of interest of the late loans, from the disproportion of the sums. he need say nothing more, he conceived, to show that the first charge in the resolution immediately before the committee is unfounded. if what he said was not sufficient to disprove it, he asked where is the evidence to support it? he next turned to the second charge in the resolution, viz: that the secretary had made the drafts complained of without the president's instructions. here he noticed a mistake some gentlemen had fallen into, when speaking of the call of the house for information. this was a request to the president, and not an order to the secretary. from the information communicated in consequence of this call, it did not appear that the secretary had acted without, or contrary to instructions, and he insisted, that he ought to be presumed innocent till he was proved guilty. he argued that the authority given to the president in the subject put it in his power to draw the whole fourteen millions to this country, if he thought fit; it could not, therefore, he contended, be insisted, that the amount of the drafts had passed the limits of the authority given. it is not denied, he proceeded, that there was a right to draw for the two millions appropriated for the reduction of the public debt. well, it has appeared, on a certain occasion to the house, that our minister in france negotiated a contract with the national assembly, or their officers, for the payment of $ , of the debt due them, here; then certainly, the exigency of the case required that this sum should be drawn here for the purchase of provisions for st. domingo, in which this payment was to be made. here then was a positive necessity of drawing for $ , , and as a discretionary power in the subject had been left to the executive, they might have found it advisable, perhaps, under an expectation of additional payments in the same manner to have drawn over as much more as they might have thought prudent. he adverted to the application of the secretary to the legislature to declare whether the loan obtained, for an interest of five per cent., exclusive of douceurs, might be considered as borrowed under authority of the $ , , act. it was his (mr. boudinot's) opinion at the time, that no explanatory law was necessary; and that the executive had power to construe the act in that sense. this was also the secretary's opinion, and in consequence of that opinion he had drawn bills. he thought it however right to apply to the house and have every doubt removed, and the legislature sanctioned his construction of the law. it had been said, that if the legislature had a right to confirm, they also had a right to reject the construction put upon the law by the executive. this, he conceived, they would not have been warranted in doing, after a contract agreeably to that construction had been made; such a proceeding must have involved a breach of contract. it had been repeatedly asserted and strenuously insisted on, that the legislature were totally in the dark, as to the drafts from europe. to disprove this assertion, he read several items from sundry reports of the secretary, where sums received on account of loans are specified. it had also been said, that there was no evidence that any part of the loan was applied to or intended for the purchase of the public debt. this also appears unfounded, from a note dated th of august, , laid before the trustees for purchasing the public debt, which expressly mentions, that a loan had been negotiated, part of which was destined for the purchase of the public debt, and that some points relative thereto were before the president for his approbation. this also showed that the president had knowledge of such intentions. his speech, and the report of the secretary, in consequence of part of that speech, which had been so repeatedly referred to, also unequivocally prove this point. he recapitulated the heads of his arguments, and concluded, that if nothing further could be brought in support of the charges now before the committee, they should have his decided negative. mr. madison.--he wished not, he said, to waste a moment of the small portion of time left, by regretting its insufficiency for a full discussion of the subject before the committee. but he thought it due to truth, and to the honorable and independent motives of his colleague (mr. giles) in proposing the resolutions, to remark, that the lateness of the day to which they had been postponed did not justify the strictures which had been made on it. if the delay was not to be considered as unavoidable, some blame, at least, would fall elsewhere. the inquiries in which the whole matter originated, had been moved by his colleague, and passed the house some weeks ago. the reports in answer to these inquiries had not been finally made and printed a single day before the present resolutions were submitted to the house. he admitted that it might have been impracticable to report the information called for, as early as was desired by the house. he was sensible of the anxiety that would be naturally felt by the officer called upon, to present every consideration that might place his conduct in the most favorable point of view; yet, with all these allowances, it was impossible to deny that the reports contained things which did not belong to them, and therefore consumed time which, belonged to the period for discussion. he would mention one instance on which there could not possibly be a difference of opinion, viz: the vindication, formally undertaken by the secretary, of the policy of borrowing money abroad. whether his policy was right or wrong, the legislature had themselves decided in favor of it; and it was the duty of the secretary, in complying with the orders of the house, to inform the house how the law had been executed--not why it had been made; to explain his own conduct,--not to justify that of the legislature. it had been asked why the call for information had not been sooner made? the answer was obvious and simple. it was not sooner perceived by the house, that there was such a necessity for it. the want of information was first suggested by the bill for paying $ , , to the bank, although $ , only were immediately due, and for authorizing another foreign loan to the amount of $ , , . from the dawn of light thrown by some circumstances incident to the occasion on the darkness in which the house had remained, proceeded those doubts and inquiries which had led to the information now possessed. his colleague had great merit in having brought about this development. he had rendered a service highly valuable to the legislature, and no less important and acceptable to the public. one good effect of the information had been, that it prevented the passage of the bill for borrowing $ , , as an anticipated payment to the bank. the bill had dropped from the hand of its patron with the first light that broke in upon the house. what other measures would have been prevented or varied, if a like knowledge of our funds and finances had been sooner obtained, was matter of serious consideration. another consequence of the reports, taken together, was, that the face of them presented to his colleague an evidence of the charges contained in the resolutions. whether, at so late a day, it was best to leave the subject as exhibited by the various documents in print, for the examination and opinion of the public, or to press it on the consideration of the house, was a point which every member had a right to decide for himself. his colleague had viewed the positions stated in his motion as too important to be suspended, and as supported by such clear and authentic proofs, that a small portion of time would suffice for the subject. under this impression, what was his right became his duty; and he had discharged it by offering his resolutions to the house. as the house had refused to commit the two introductory resolutions, which established the rule of judgment to be applied to the case, and the last also, which declared the inference to be drawn, the task of the committee was limited to a simple inquiry into the facts stated. they were to make out and report a special verdict of these, and leave it to the house to pronounce the proper judgment arising from them. the resolution immediately before the committee imported, "that the secretary of the treasury had violated the law passed on the th of august, , making appropriations of certain moneys," first, "by applying a certain portion of the principal borrowed to the payment of interest on that principal;" secondly, "by drawing part of the same moneys into the united states, without the instruction of the president." the questions here are questions of fact; and whatever quality may be attached by different gentlemen to the several facts, it would seem as if the facts themselves are too clearly supported by the reports of the secretary, and the documents attending them, to be denied or controverted. the law of august , , authorized the president to cause to be borrowed $ , , , to be applied to the foreign debt of the united states. a subsequent law of august , , authorized another loan of $ , , , to be applied to the domestic debt of the united states. a power to make these loans was delegated, on the th of august, , to the secretary, by a general commission, in the usual form, referring to the several acts above mentioned, but without any further discrimination of the loans to be made. as the law, however, for applying loans to the foreign object was prior in date, the presumption would rather be that it was to have a priority of execution; that the first money borrowed was to belong to the first object provided for. it was unnecessary, however, to dwell on this consideration, because the president had removed all uncertainty by the precise explanations and instructions which accompanied the power to the secretary, and which ought, in truth, to be deemed a part of the commission. the instruction having been more than once read to the committee, he would content himself with referring to it. the part referred to is in the following words: "i do hereby make known to you on the execution of the said trust, you are to observe and follow the orders and directions following, viz: except where otherwise especially directed by me, you shall employ in the negotiation of any loan or loans which may be made in any foreign country, william short, esq.; you shall borrow, or cause to be borrowed, on the best terms which shall be found practicable, and within the limitations prescribed by law as to time of repayment and rate of interest, such sum or sums as shall be sufficient to discharge, as well all instalments or parts of the principal of the foreign debt, which are now due, or shall become payable to the end of the year , as all interest and arrears of interest which now are, or shall become due, in respect to the said debt, to the same end of the year . and you shall apply, or cause to be applied, the moneys which shall be so borrowed, with all convenient despatch, to the payment of the said instalments, and parts of the principal and interest, and arrears of interest of the said debt. you shall not extend the amount of the loan which you shall make, or cause to be made, beyond the sum which shall be necessary for completing such payment, unless it can be done upon terms more advantageous to the united states, than those upon which the residue of the said debt shall stand or be. but if the said residue, or any part of the same, can be paid off by new loans, upon terms of advantage to the united states, you shall cause such further loans as may be requisite to be made, and the proceeds thereof to be applied accordingly. and for carrying into effect the objects and purposes aforesaid, i do hereby further empower you to make, or cause to be made, with whomsoever it may concern, such contract or contracts, being of a nature relative thereto, as shall be found needful and conducive to the interest of the united states." by this formal act, issued along with the commission to the secretary, the president designated the object to which the loans to be made were to be applied; and by declaring the object to be that provided for by the act of august , , he expressly placed the loan under the authority and provision of that act; so that the moment the money should be borrowed, it was to stand legally appropriated to its specified object--as much as if another law authorizing another loan for another purpose, had not existed. this arrangement of the president was the more proper, not only because provision for the payment of the foreign debt had been the primary object of the legislature, and the payment of the french debt the anxious wish of their constituents, but because payments to france were no longer matter of option, but of strict and positive obligation on the united states. in proof of this, he stated that the debt of france, calculated to the end of , and computing the livre at - to a dollar, amounted to $ , , , whilst the payments actually made, computing the florin at - / to a dollar, amounted to more than $ , , , leaving, as a balance, at the end of , $ , , . adding to this balance the instalments due for , amounting to $ , , there were to be paid within that year $ , , . the entire payments, however, composed of $ , in europe, and $ , put to the account of st. domingo, (although $ , , were actually paid,) amounted to $ , , , leaving due at the end of , a balance of $ , . here mr. m. adverted to and read a paragraph in the report of the secretary, page , where in allusion to the measure of drawing bills in the latter part of , he says: "i feel myself the more at liberty to do it, because it did not interfere with a complete fulfilment of the public engagements in regard to the foreign debt. it could be done consistently with a full reimbursement of all arrears and instalments which had accrued on account of that debt." mr. m. observed, that, as he could not reconcile this paragraph with the calculations which he had stated, and which were drawn from official documents, he must regard it as an unquestionable error, produced by some hasty view of the subject. returning to the commission, mr. m. repeated that all the money which that instrument, defined and qualified by the instruction annexed to it, authorized the secretary to borrow, was actually and specifically appropriated to the payment of the foreign debt, and under circumstances particularly urgent, in relation to a part of it. in what manner had this trust been carried into execution? it was to be observed, with regret, that, on the very day on which the commission and instruction issued from the president, the secretary commenced his arrangement for diverting part of the loan, accepted and ratified by virtue of his commission, to a purpose different from that specified and required by his instruction. that a fact of so extraordinary a complexion might be grounded on the most unexceptionable proof, mr. m. said he should take the liberty of supporting it by the authority of the secretary himself. here he read from the secretary's letter, dated august , , to the dutch houses from whom the loan had been accepted, the following passages, viz: "i should also wish, for particular reasons, that the business may be so regulated as to give it the form of two loans--one for two millions under the first act, and the other for one million under the second. but neither about this am i so solicitous as to be willing that it should constitute an embarrassment." "i destine a million and a half of this sum as a payment to france, under the direction of mr. short, our chargé d'affaires at that court, whose orders for that purpose you will please to follow." the aspect here presented by a comparison of the several documents, was singular and remarkable. the subordinate officer appeared in direct opposition to the chief magistrate. the agent was seen overruling, by his own orders, the orders of his principal. the language of the president was, "by virtue of the power vested in me by law, i destine the money to be borrowed to the discharge of the instalments and interest of the foreign debt." the language of the secretary was: "i destine a part of the money only to that purpose, and a part to be brought to the united states for other purposes." he left every member to make his own reflections on the subject. he would only observe, in general, that it demonstrated the truth asserted in the proposition, that the secretary had violated both the law of august , , and the instruction of the president relating to it. he then proceeded to a more distinct view of the two points particularly stated in the resolution. the first was, "that a certain portion of the principal borrowed under the act of august , , had been applied to the payment of the interest falling due on that principal." as the fact would not, he presumed, be denied, he forebore to quote that part of the documents which admitted and authenticated it. he would, however, premise to any observations on it, a cursory view of the nature of appropriations. it was unnecessary to repeat the emphatic remarks on this subject, which had fallen from the member from pennsylvania, (mr. findlay.) it was sufficiently understood. he concluded that appropriations of money were of a high and sacred character; that they were the great bulwark which our constitution had carefully and jealously established against executive usurpations. he meant only to take notice of the different plans into which appropriations might be moulded, and of the particular operation which ought to be given to them. one of the plans was that of appropriating specified funds to specified objects, in which the supposed certainty of the funds was adjusted to the supposed importance of the objects. the other plan formed all the branches of revenue into an aggregate fund, on which the several objects should have a priority of claim according to their superiority of importance. it was evident that in both these cases, the legislature alone possessed the competent authority. the exclusive right of that department of the government to make the proper regulations, was the basis of the utility and efficacy of appropriations. there was a third question incident to the doctrine of appropriations, viz: whether, under specific appropriations, such as had been adopted by congress, the executive authority could, without special permission of the law, apply the excess of one fund to the aid of a deficient one, or borrow from one fund for the object of another. on this question, there might perhaps be a difference of opinion. he would only remark, that, admitting such a discretion to be implied in the trust of executing the laws, it would still be requisite that the due sanction of the executive should be given, that a regular account should be kept between the different funds, and that all advances from one to the other should be replaced as soon as possible. this was equally necessary to the preservation of order in the public finances, and to a proper respect for the authority of the laws. in the present case, it did not appear that the moneys taken at different times from the loans designated by the president, and thereby placed under the appropriation of the act of august , , to the foreign debt, had ever been replaced. it did not appear that any such replacement was regularly planned or provided for. it was particularly worthy of observation, moreover, that the only use within the united states for which any loan in europe could be assigned, was that of the sinking fund; that the trustees of this fund had never been even informed of the drafts; that if the moneys drawn had been carried to the sinking fund, the limited sum of $ , , would have been exceeded; and that the statements and accounts had, in fact, been so wound up, as mentioned by the secretary, that not a single dollar of the money laid out in purchasing the public debt had been charged on loans drawn into the united states, although such was the only purpose to which they were legally applicable, and such the principal reason assigned for making the drafts. he did not go into a particular proof that the sum drawn into the united states, after subtracting the whole sum placed to a foreign account, exceeded the sum of $ , , , because the fact had been conceded on the other side, particularly by the statement of the member from connecticut, (mr. hillhouse.) thus it appeared clearly, in confirmation of the first point, that the application of a certain portion of the principal borrowed in europe, to payment of the interest, was not a mere transposition of moneys, to prevent the sending them backwards or forwards, nor an advance of money from an overflowing fund in favor of a deficient one; but an absolute diversion of appropriated money, and consequently a violation of the law making the appropriation. the second point in the resolution related to the drawing of moneys into the united states without the instruction of the president. this point had been fully established by the documents and explanations applied to the first. they had done more: they had demonstrated that the instructions of the president, which dedicated the loans to be made under his commission to a foreign object, were an express prohibition of drafts for any domestic object. it was sufficient, therefore, to refer to the instructions of the president, and to the contradictory steps taken by the secretary. two attempts had been made to elude the force of these official proofs. the first appealed to the president's speech at the opening of the session in ; to the report of the secretary, made in consequence of it, to the house; and to the supplementary act of congress passed in conformity to the report. had the circumstances involved in this transaction been attended to by those who seemed to rely on it, mr. m. was persuaded that a reference to it would never have been made by gentlemen on that side. as they had thought fit, however, to draw arguments from that source, it was proper to give an answer to them; and the best answer would be a naked statement of facts. the instruction of the president to the secretary was given, as has been seen, on the th of august, . the letter of the secretary contravening this instruction, was dated, as has also been seen, on the same th day of august, . the actual drawing of bills by the secretary commenced the th of december, . the law now pleaded in justification of the conduct of the secretary, passed on the d of march, . there are other facts material to a correct and full view of the subject. the speech of the president was delivered on the th of december, . it briefly informed the two houses that "a loan of , , of florins, towards which some provisional measures had previously taken place, had been completed in holland," and "that the secretary of the treasury had discretion to communicate such further particulars as might be requisite for more precise information." the consequent report of the secretary, recommending the provision in the supplementary act, was not received till the th of february, --six days only before the constitutional dissolution of the house. in the interval between the speech of the president and the secretary's report, he had proceeded to draw bills to the amount of , florins. his report, notwithstanding what had been said of it, contained not a word from which it could be known that a single florin had been actually drawn over to the united states. the other attempt to elude the evidence before the committee, recoiled with equal force on the gentlemen who had hazarded it. in the report lately made by the trustees of the sinking fund, is a statement laid before them by the secretary, in which it is noted "that the acceptance of the loan of , , of florins, and the application of one-third of it to the purpose of that fund, was under the consideration of the president." from this fact, it had been inferred, not only that the secretary had withheld no proper information from the trustees, but that the result of the president's deliberations on the subject had varied the purpose signified by his first instructions to the secretary. it happened, however, most unfortunately for the gentlemen who exulted in this argument, that they had entirely overlooked the dates of the two papers. the paper laid before the trustees, and alleged to have explained the final purpose of the president, was dated on the th of august, . the paper relied on by the other side, as the final, as well as the most formal, designation of the will of the president, was dated the th of august, . the gentlemen, therefore, instead of the inference they had made, should have reversed their premises, and joined with their opponents in concluding that the president was led by a consideration of the subject, not to do what the secretary, in his note to the trustees, seemed to anticipate, but what had been evinced by the president's own act of posterior date. the second point, then, as well as the first, rests on the most solid proofs, taken from a collective view of authentic documents. much has been said on the necessity of sometimes departing from the strictness of legal appropriations, as a plea for any freedoms that may have been taken with them by the secretary. he would not deny that there might be emergencies, in the course of human affairs, of so extraordinary and pressing a nature, as to absolve the executive from an inflexible conformity to the injunctions of the law. it was, nevertheless, as essential to remember, as it was obvious to remark, that in all such cases, the necessity should be palpable; that the executive sanction should flow from the supreme source; and that the first opportunity should be seized for communicating to the legislature the measures pursued, with the reasons explaining the necessity of them. this early communication was equally enforced by prudence and by duty. it was the best evidence of the motives for assuming the extraordinary power; it was a respect manifestly due to the legislative authority; and it was more particularly indispensable, as that alone would enable the legislature, by a provident amendment of the law, to accommodate it to like emergencies in future. in the proceedings falling under the present inquiry, no necessity appeared for the liberties which had been taken, the money appropriated in europe being more wanted there than at home. it appeared that the instructions of the supreme executive, instead of warranting those liberties, had precluded them; nor had the proper explanations been disclosed in due time to the legislature. to place the subject in a more distinct point of view, it was proper to advert to the precise authorities and duties of the secretary, as his office is defined by the act establishing the treasury department. for this purpose, mr. m. read the second section of that act, which is in the words following: "that it shall be the duty of the secretary of the treasury to digest and prepare plans for the improvement and management of the revenue, and for the support of public credit; to prepare and report estimates of the public revenue and the public expenditures; to superintend the collection of the revenue, to decide on the forms of keeping and stating accounts and making returns, and to grant, under the limitations herein established, or to be hereafter provided, all warrants for moneys to be issued from the treasury, in pursuance of appropriations by law; to execute such services relative to the sale of the lands belonging to the united states as may be by law required of him; to make report and give information to either branch of the legislature, in person or in writing, (as he may be required,) respecting all matters referred to him by the senate or house of representatives, or which shall appertain to his office; and generally to perform all such services relative to the finances as he shall be directed to perform." this establishment of the office evidently had no reference beyond the case of superintending the regular and ordinary collection of the revenue, and granting warrants for moneys issued from the treasury, in pursuance of appropriations by law. the case of loans, as an occasional and extraordinary resource, was left to be provided for by particular laws for the purpose. the authority, with respect to the loans in question, was accordingly committed to the president, in order to secure for so special a trust, the highest responsibility to be found in the government. and when it was considered that the whole sum contemplated was no less than fourteen millions of dollars, and when the latitude as to the terms and contracts was combined with the vastness of the sum, it might well be questioned whether so great a power would have been delegated to any man in whom the legislature and the people of america had less confidence than they so justly reposed in the existing chief magistrate, and whether an equal power will ever be committed to a successor. this distinction between the case of ordinary revenue and that of loans is not only consonant to the actual policy of our laws, but is founded in obvious and solid considerations. in the collection and disbursement of the ordinary revenues arising from taxation, the business flows in official channels, is subject in every stage to official checks, and the money, being in constant influx and efflux, nowhere accumulates in immense sums. the case of loans is, in all these respects, different. in settling the terms and arranging the negotiations, there is always an important discretion involved. when the loans are foreign, as well as great, regulations concerning the bills of exchange form another occasion where great latitude is implied in the trust; whilst the magnitude of the sums, falling under the same direction at the same moment, present a further and material variance between the two cases. the tendency of these observations is to show that, as the permanent law establishing the treasury department does not extend the authority of the secretary to the case of loans and as the law authorizing loans exacts, for special reasons, a responsibility from the president himself, the authority of the secretary, in executing the loans, and the appropriation of them, must be derived from the president; and, consequently, where that authority fails, there can be no resort to the law establishing the department, much less to any general discretion incident to his official character. it is evident that the president, although no doubt guided by the most proper considerations in employing the agency of the secretary of the treasury in the business of the loans, might, if he had judged fit, have substituted the agency of another; and that, whatever agency he might prefer, his own instructions would always regulate the extent and exercise of the power conferred. the want of any apparent authority from the president had led several gentlemen to insist on presumed authorities, superseding the instructions joined with the commission to the secretary. but here, again, the fair inference was to be reversed. a communication of the authorities given by the president to the secretary, as to the application of the foreign loans, had been expressly requested by the vote of the house. it was not to be supposed that the secretary, if he had received further authorities or instructions, would have failed to produce them, or to refer to them, in the justification of his conduct. far less could it be presumed that the president, if he had given any superseding authorities or instructions, would not have caused them to be communicated to the house, or that he would have suffered a partial communication to mislead the house into an error as to so important a fact. the president was the last man in the world to whom any measure whatever of a deceptive tendency could be credibly attributed. thus far (said mr. m.) his observations had departed as little as possible from the question in its strictest sense. he should now avail himself of the opportunity afforded by the terms of the last clause, which spoke of drafts generally, to take a more particular notice of those recently made; in doing which, he considered himself safe within the rules of the house, which were so rigorously enforced against the affirmative side of the question. the whole amount of foreign loans transferred directly or indirectly to the united states appeared from the several statements to be about $ , , . the amount of the direct drafts was $ , , . of the drafts made since the th of april, , and sold by the bank, the proceeds now in the bank, or payable into it, before the st of april next, amount to $ , , . of this sum $ , have been drawn in the course of the present session in congress. with respect to the times and the amount of these drafts, hitherto absolutely unknown to the legislature, because the account of them had remained in the books of the bank without ever appearing in the books of the treasurer, mr. m. confessed that he had found no explanations that were satisfactory to him. he had looked through all the reports and all the communications before the house, without discovering either that they had been made by the authority or with the knowledge of the president, or had been required for, or applied to the purchase of, the public debt, or had been ever communicated to the trustees of the sinking fund, who had the direction of such purchases, or that they were the effect of any necessity that could justify them. and if there was no evident necessity for the proceeding, it was the more to be lamented that, whilst we were every where sympathizing with our allies in their arduous struggles for liberty, and echoing, from every part of the union, our congratulations and good wishes, the pecuniary succors so critically necessary to their cause, and the most substantial proof of the sincerity of our professions, should be silently withdrawn across the atlantic from the object for which they were intended--succors, too, which were not merely a tribute of gratitude, of generosity, or of benevolent zeal for the triumph of liberty, but a debt moreover of strict and positive obligation, for value acknowledged and received. in contemplating the subject in this point of view, he felt a pain which he could not easily express, and to which, he persuaded himself, the breast of no other member could be a stranger. laying aside, however, all these unfavorable considerations, the important question still remained, why the legislature had been uninformed of the moneys so unexpectedly drawn into the bank, and to so very great an amount? if the drafts had received every requisite sanction, if they had been produced by the most justifiable causes, the existence of $ , , , in a situation so different from what had been contemplated, was a fact which the representatives of the people had a right to know, which it was important to them and their constituents that they should know, and which it was the indispensable duty of the officer charged with it to have made known. this omission was the more remarkable when considered in relation to the measure above mentioned, of paying off at once the whole sum of $ , , , payable to the bank by instalments in ten years. a bill for this purpose had been introduced, and was on its passage; the object of it had been patronized by a report of the secretary not long since made. in one of his last reports he expressly states, among the inducements to such extensive drafts of money from europe, that they were made "with an eye to placing within the reach of the legislature" the means necessary for this object. was it not extraordinary, was it not unaccountable, that so important a measure should be recommended, and be actually introduced, and that money otherwise appropriated in europe should be transferred to this country and deposited in the bank, in order that it might be within the reach of being applied by the legislature to that measure, and yet that no disclosure should be made to the legislature of that fact that the money was so drawn and lay at the bank, within their reach, to be so applied? if any thing could heighten astonishment on this occasion, it must be the reason assigned by the secretary for any obscurity that might have hung over our finances--"that, till the last resolutions, no call had been made on the department which rendered it proper to exhibit a general view of the public moneys and funds, or to show the amount and situation of such as were unapplied." mr. m. would not decide that the legislature was free from blame in not using more full and efficacious means of obtaining such information as would have removed all obscurity. but, whatever degree of blame might fall on them, it never could be admitted that their calls on the department had furnished no proper occasion for exhibiting a full view of the public finances. he referred generally to the various resolutions, which, without the least force of construction, would have extended to every proper article of information. he reminded the committee of the latitude of reports under certain other orders of the house, and asked whether less freedom of construction was to be allowed when information was to be given, than when power or discretion was to be exercised? but independently of this view of the matter, mr. m. held it to be clear and palpable that the very situation of the money afforded an occasion which rendered it proper that the house should be informed of it. if a liberty could be taken of removing money from europe, where it stood appropriated by law, to this country, where there was no legal object that required it, and with an eye, as was stated, to an object to which no money was applicable, without the authority of the legislature, how could it possibly be supposed improper to take the further liberty of communicating what was done to the legislature? he concluded with recurring to the particular form in which the subject presented itself to the committee, and repeating that, whatever quality might be attached to the facts charged, or however improper it might be thought by some to proceed in haste to any affirmative decision on them, it appeared irreconcilable with the evidence which had been produced, to decide, by a negative vote, against the truth of the facts. mr. ames prefaced his remarks on the subject before the committee by some observations on the nature of the charges brought forward. he was happy that they were determinate, and conceived that the defence could be crowded in a nutshell. as to the first charge in the resolution immediately before the committee, he had seen no proof in support of it brought forward. it is founded only on assertion, and he conceived that contra-assertion was sufficient to meet it. no authority, it was said, was given to the secretary to obtain the loan under the blended authority of both acts. this is not one of the charges included in the resolutions before the committee, and therefore this is not the time to answer it. however, if this were fact, nothing criminal could in consequence be imputed; and, since the purposes of both laws were carried into execution, there could be no ground for saying that either was violated. he said much on the impracticability of the line of conduct which some gentlemen appeared to think ought to have been followed by the secretary. it was impossible to keep different funds, differently appropriated, so inviolably separate as that one might not be used for the object of the other; all was right, he conceived, provided what was taken was to be replaced. he was also of opinion that the overflowing of one fund could be applied to make up the deficiency of another; and that all that is necessary is to give priority to the appropriation. the money paid in europe for interest on the loan was said to have been improperly applied, because the fund appropriated for the purpose was here. he insisted that that money was absolutely represented here by an equal sum: and he contended that, though the interest was not paid in the identical coin appropriated, yet, by allowing a very reasonable latitude of expression, it could be said that the interest was paid with the money appropriated, for the applicability of the sums there depended on the existence of the fund here. he next turned to the second charge in the resolution; and, after showing that the natural presumption was, that the secretary either was instructed or had a discretionary power, he then vindicated his conduct in respect to the drafts of money to this country. he did honor to the motives of the gentlemen who had instituted the inquiry, and concluded an elegant speech, by a contrasted picture of our former and present situation as a country, dwelling upon the importance of preserving harmony, and insisting on the danger of giving rise to suspicions against a highly responsible officer, and of bringing forward charges not to be supported by proof. mr. findlay.--if my hopes respecting the government have not been equally elevated with those of the gentleman from massachusetts, (mr. ames,) neither are my apprehensions so much depressed with fears. but i hope i am equally anxious for the stability and prosperity of the government; and though we differ in opinion on this question, yet i am firmly persuaded that the part i take is the best calculated to promote the necessary confidence in government, and secure the virtue of its administration. as the gentleman, in an elegant discourse, has explained no difficulties, nor adduced any proofs in support of his opinions, i will only add, that i believe the government to be so well established, and so much beloved by the citizens, as not to be endangered by the house of representatives' examining how the laws have been obeyed in the application of public money, and giving their opinions upon the result of that examination. that the secretary has not reported fully to this house, in due time, is so much within the knowledge of every member, that it is impossible to doubt of the truth of the fact, however we may differ about the propriety of the conduct. to go no further back than last session--besides the references to the secretary to report upon the ways and means, and inform the house what revenues were necessary, on the th of february, , a standing order was resolved, directing that he should report to the house, within a few days after the meeting of the next session, "an accurate statement and account of the receipts and expenditures of all the public moneys, in which shall be distinguished the expenditures which fall under each head of appropriation, and that it shall be shown the sums, if any, which remain unexpended," &c. were not the moneys drawn upon loan, _public moneys_, and were not those loans appropriated? undoubtedly, they were strictly so. it is a strange evasion to say, that by these expressions only the current revenue is intended. arguments must be scarce when this becomes necessary. it requires no refutation. on the th of january last, he was called upon to "lay before the house such information with respect to the finances of the united states, as will enable the legislature to judge whether any or what additional revenues will be necessary." in consequence of the recommendations of the president, and the wishes of this house, to commence the discharge of the redeemable part of the funded debt, a reference was made to the secretary, requiring him to report a mode for the application of the public money for that purpose; the house being assured, by the gentleman who moved the resolution, that no new tax was intended or necessary. but the secretary, so far from informing the house how much money he had subject to his discretion, in the bank, in notes, &c., proposed a new and partial tax, as the foundation of a new system of loans. when the memorable bill to authorize another loan of $ , , , was before the house, a few weeks ago, we were told by gentlemen on this floor, that there was not time for argument; that the bill must be passed in three or four days, &c.; and when we wanted information, we were told by some of the friends of the bill that it was not convenient to give information there--that we might procure information elsewhere, as they had done. i confess i did not comprehend this method of legislating; but the secretary has since explained it, in one of his reports, by complaining of the house, because the members did not go to his office and ask information, instead of requiring it to be publicly reported. even when this favorite bill for a new loan was before the house, the secretary did not condescend to inform us that he had, without authority, provided near a million and a half of dollars for that purpose; he did not inform us how obligingly he had drawn bills upon our bankers in holland, to have the money put in our way. thus, in order to anticipate the payments due to the bank, he did what he could to induce congress to break the public faith, by repealing the existing appropriation made for securing the discharge of a debt of justice and gratitude to the french nation. from this and other instances, it appears, that however high the secretary's regard for public credit may be, there are other considerations which have obtained a higher degree of his attention than obedience to the laws. the gentleman from virginia (mr. madison) has so clearly explained the nature of that discretion with which the secretary is vested, and so fully proved that there was no necessity to justify a departure from the appropriations made by law, that it is not necessary for me to explain further on this head. however, i cannot help remarking, that the discretionary powers were pretty freely exercised. the drawing of bills began early indeed, and was continued to a recent period. the times of drawing fortunately corresponded with the necessities of the bank, and the power of employing agents was pretty freely used. the same agents were frequently both the sellers and the purchasers of the bills. perhaps this was necessary: no doubt it was convenient. probably it was safe; but who can say it will be always so. i have not said so much to prove the truth of the facts expressed in the resolution, for of this there can be no doubt--it is as clear as the sun, shining in daylight,--but, in order to prove the propriety of this committee expressing its disapprobation of a conduct so unjustifiable. that information was withheld unduly, is evident, from the lateness of this discussion; that it was obtained with difficulty, is evident, from the numerous applications we were obliged to make in order to obtain it. the house then adjourned until seven o'clock post meridian. evening session-- p.m. an engrossed bill making certain appropriations therein mentioned was read the third time, and passed. the bill sent from the senate entitled "an act providing for the compensation of ebenezer storer," was read twice and committed. _official conduct of the secretary of the treasury._ the house again resolved itself into a committee of the whole house on the third, fourth, fifth, sixth, seventh, and eighth resolutions contained in the motion of thursday last, respecting the official conduct of the secretary of the treasury. the third resolution being still under consideration, in the words following, viz: "_resolved_, that the secretary of the treasury has violated the law passed the th of august, , making appropriations of certain moneys authorized to be borrowed by the said law, in the following particulars, viz: first, by applying a certain portion of the principal borrowed to the payment of interest falling due upon that principal, which was not authorized by that or any other law. secondly, by drawing a part of the said moneys into the united states, without the instructions of the president of the united states." a motion was made, and the question being put, that the house do agree with the committee of the whole house in their disagreement to the resolution, it was resolved in the affirmative--yeas , nays , as follows: yeas.--fisher ames, robert barnwell, egbert benson, elias boudinot, shearjashub bourne, benjamin bourne, jonathan dayton, thomas fitzsimons, elbridge gerry, nicholas gilman, benjamin goodhue, james gordon, christopher greenup, samuel griffin, william barry grove, thomas hartley, james hillhouse, william hindman, philip key, aaron kitchell, john laurance, amasa learned, richard bland lee, george leonard, samuel livermore, frederick augustus muhlenberg, william vans murray, nathaniel niles, theodore sedgwick, jeremiah smith, israel smith, william smith, john steele, samuel sterrett, jonathan sturges, george thatcher, thomas tudor tucker, artemas ward, hugh williamson, and francis willis. nays.--john baptist ashe, abraham baldwin, william findlay, william b. giles, andrew gregg, nathaniel macon, james madison, john francis mercer, andrew moore, alexander d. orr, john page, and josiah parker. a motion was then made, and the question put, that the house do agree with the committee of the whole house in their disagreement to the fourth resolution, in the words following: "_resolved_, that the secretary of the treasury has deviated from the instructions given him by the president of the united states, in executing the authorities for making loans, under the acts of the fourth and twelfth of august, one thousand seven hundred and ninety." it was resolved in the affirmative--yeas , nays , as follows: [the same as above.] another motion was then made, and the question being put, that the house do agree with the committee of the whole house in their disagreement to the fifth resolution, in the words following: "_resolved_, that the secretary of the treasury has omitted to discharge an essential duty of his office, in failing to give congress official information, in due time, of the moneys drawn by him from europe into the united states; which drawing commenced december, one thousand seven hundred and ninety, and continued until january, one thousand seven hundred and ninety-three; and of the cause of making such drafts:" it was resolved in the affirmative--yeas , nays , as follows: yeas.--fisher ames, robert barnwell, egbert benson, elias boudinot, shearjashub bourne, benjamin bourne, jonathan dayton, thomas fitzsimons, elbridge gerry, nicholas gilman, benjamin goodhue, james gordon, thomas hartley, james hillhouse, william hindman, philip key, aaron kitchell, john laurance, amasa learned, george leonard, samuel livermore, frederick augustus muhlenberg, william vans murray, theodore sedgwick, jeremiah smith, william smith, john steele, samuel sterrett, jonathan sturges, george thatcher, thomas tudor tucker, artemas ward, and hugh williamson. nays.--john baptist ashe, abraham baldwin, william findlay, william b. giles, samuel griffin, william barry grove, richard bland lee, nathaniel macon, james madison, john francis mercer, andrew moore, nathaniel niles, john page, josiah parker, and israel smith. another motion was then made, and the question being put, that the house do agree with the committee of the whole house in their disagreement to the sixth resolution, in the words following: "_resolved_, that the secretary of the treasury has without the instruction of the president of the united states, drawn more moneys, borrowed in holland, into the united states, than the president of the united states was authorized to draw, under the act of the twelfth of august, one thousand seven hundred and ninety, which act appropriated two millions of dollars only, when borrowed, to the purchase of the public debt; and that he has omitted to discharge an essential duty of his office, in failing to give official information to the commissioners for purchasing the public debt, of the various sums drawn from time to time, suggested by him to have been intended for the purchase of the public debt:" it was resolved in the affirmative--yeas , nays , as follows: [yeas as above.] nays.--john baptist ashe, abraham baldwin, william findlay, william b. giles, nathaniel macon, james madison, john francis mercer, and josiah parker. another motion was then made, and the question being put, that the house do agree with the committee of the whole house in their disagreement to the seventh resolution, in the words following: "_resolved_, that the secretary of the treasury did not consult the public interest, in negotiating a loan with the bank of the united states, and drawing therefrom four hundred thousand dollars, at five per centum per annum, when a greater sum of public money was deposited in various banks, at the respective periods of making the respective drafts:" it was resolved in the affirmative--yeas , nays , as follows: [same as above.] another motion was then made, and the question being put, that the house do agree with the committee of the whole house in their disagreement to the eighth resolution, in the words following: "_resolved_, that the secretary of the treasury has been guilty of an indecorum to this house, in undertaking to judge of its motives in calling for information, which was demandable of him, from the constitution of his office, and in failing to give all the necessary information within his knowledge relatively to the subjects of reference made to him of the nineteenth of january, one thousand seven hundred and ninety-two, and of the twenty-second of november, one thousand seven hundred and ninety-two, during the present session;" mr. william smith said, that, after the vote which had just prevailed by so considerable a majority on the preceding resolutions, the committee could not, with any propriety, criminate the secretary of the treasury for failing to give the information alluded to, because by that vote it had been established that the secretary had only acted under the authority of the president, and conformably to his instructions. if there had been any omission to communicate information to congress, that omission was surely not chargeable to the secretary. but it had been already clearly shown, by documents in the possession of the house, that the necessary information had been communicated. the treasurer's accounts, which had been from time to time laid before the house, exhibited the amount of moneys proceeding from the sale of bills, and the secretary's report of february, , conveyed full information of the drawing. it was true, there was a sum of about $ , , the proceeds of bills which, as had been remarked by a gentleman, (mr. madison,) did not appear in the treasurer's account, but this was owing to the sales of the bills by the bank not having been closed at the time the last quarterly account was rendered, and consequently that sum could not appear in the treasurer's account. [mr. madison said, he had not meant to blame the treasurer.] mr. smith proceeded. the gentleman, however, had attributed misconduct to the secretary, for withholding information of the amount of moneys in the treasury accruing from foreign loans, when directed by the house, january th, , to report whether the existing revenues were adequate to face the additional expense of the indian war. mr. s. could not forbear expressing great surprise at this remark of the gentleman from virginia, (mr. madison,) when he recollected what had been just before said by the same gentleman in support of the former resolution. the gentleman, on that occasion, in his attempt to disprove the right of the secretary, _ex officio_, to superintend the moneys derived from the foreign loans, had endeavored to establish a nice distinction between the ordinary internal revenues of the country, and the resources resulting from foreign loans. the law constituting the treasury department, he had said, gave the secretary power only over the revenues, which embraced only the ordinary resources, whereas loans were distinct things, the management of which was specially intrusted by law to the supreme magistrate, and in relation to which the secretary could exercise no authority whatever that was not derived from the president. the gentleman now argued that the secretary was blameable in not giving information of the state of these extraordinary resources, which were not within his department, when only called upon to state the amount of the ordinary revenues, which were within his department. he left it to the gentleman to reconcile this contradiction, for certainly his doctrine was erroneous on the former occasion, or it must be so now. if the moneys obtained from foreign loans were to be deemed the revenues of the country, then they fell of course under the management of the head of the treasury department, and it was wrong in the gentleman to impute misconduct to the secretary for exercising a legal authority; if, on the contrary, those moneys were viewed as an extra resource, and not within the purview of the secretary's functions, then it was wrong to censure him for not communicating the state of those moneys, when required only to report the ordinary revenues. but though the secretary would not have been censurable for omitting to give the information, the truth was, that the president's speech of th december, , the secretary's report of th february, and the act of the d of march, , were conclusive proofs that the legislature knew that the proceeds of the loans were in a train of being brought to the united states and the accounts of receipts and expenditures presented in the first week of the session, informed the house that a large sum had been drawn for, and the treasurer's quarterly account contained further information on the subject, all which was prior to any call of the house for such information. hence, mr. s. deduced, that it was not a fact that the secretary had failed to give the information, as stated in the resolution, and that had he even so failed, he would not have been censurable for a breach of an essential duty of his office. it had been said, by a member from pennsylvania, (mr. findlay,) that the lateness of the information from the secretary made it inconvenient to go into an inquiry of his official conduct so near the close of the session. to this, mr. s. replied, that he did not expect such a remark from that quarter of the house. if the gentleman had not been prepared for the inquiry, or thought it an improper season to enter upon it, why did he second the motion for bringing forward the charges? if suspicion had so long existed against the integrity of the secretary, why was not information called for at the beginning of the session? why was the call delayed till the session was within a few weeks of its termination? it was admitted that the secretary had obeyed the order of the house with wonderful alacrity and promptitude. it was indeed strange that the gentleman who brought forward the charges, should be the first to complain that there was not time for their consideration. mr. s. concluded by noticing the observation of mr. mercer and mr. madison, that the opinion of the house on the preceding resolutions would not change the truth of facts, and that the public would ultimately decide whether the secretary's conduct was criminal or not. this, said mr. s., was like the conduct of a prosecutor, who, having chosen his jurisdiction, and being nonsuited, wished to appeal to another tribunal. why were the resolutions brought before the house? was it not to substantiate the truth of them by a vote? and had the prosecution succeeded, would the secretary have had an appeal to the public? no, the resolutions would have been sent to the president, and the secretary would have been removed, disgraced, and ruined for ever, without appeal. the question was then taken, and it was resolved in the affirmative--yeas , nays , as follows: yeas.--fisher ames, robert barnwell, egbert benson, elias boudinot, shearjashub bourne, benjamin bourne, jonathan dayton, william findlay, thomas fitzsimons, elbridge gerry, nicholas gilman, benjamin goodhue, james gordon, thomas hartley, james hillhouse, william hindman, aaron kitchell, john laurance, amasa learned, george leonard, samuel livermore, frederick augustus muhlenberg, nathaniel niles, josiah parker, theodore sedgwick, jeremiah smith, william smith, john steele, samuel sterrett, jonathan sturges, george thatcher, thomas tudor tucker, artemas ward, and hugh williamson. nays.--john baptist ashe, abraham baldwin, william b. giles, william barry grove, richard bland lee, nathaniel macon, and james madison. saturday evening, march . a message from the senate informed the house that the senate having completed the legislative business before them, are now about to adjourn. _resolved._ that mr. boudinot, mr. sedgwick, and mr. hindman, be appointed a committee jointly, with a committee on the part of the senate, to wait on the president of the united states, and inform him that congress is ready to adjourn without day, unless he may have any farther communications to make to them. a message from the senate informed the house that the senate have agreed to the resolution of this house for the appointment of a joint committee, to wait on the president of the united states, and inform him of the intended recess of congress, and have appointed a committee for that purpose, on their part. on a motion made and seconded, "that the thanks of the house of representatives be presented to jonathan trumbull, in testimony of their approbation of his conduct in the chair, and in the execution of the difficult and important trust reposed in him, as speaker of the said house," it was resolved unanimously: whereupon, mr. speaker made his acknowledgments to the house, in manner following: "gentlemen: you have made me very happy by this testimony of your approbation of my conduct in the chair. i feel, at the same time, an additional pleasure in the opportunity of rendering to you my sincere acknowledgments for the kind candor and indulgence, as well as the constant aid and support, which i have experienced in the performance of the duty which you were pleased to assign me. be assured, gentlemen, i shall ever retain a grateful sense of your goodness; and you will suffer me to add, that my best wishes for your welfare and happiness, in public and private life, will attend each member of this honorable body." mr. boudinot, from the joint committee appointed to wait on the president of the united states, and inform him of the intended recess of congress, reported that the committee had performed that duty, and that the president was pleased to say he had no farther communication to make during the present session: whereupon, mr. speaker adjourned the house _sine die_. third congress.--first session. begun at the city of philadelphia, december , . list of members. senators. _new hampshire._--s. livermore, john langdon. _vermont._--s. r. bradley, moses robinson. _massachusetts._--george cabot, caleb strong. _rhode island._--william bradford, theodore foster. _connecticut._--oliver ellsworth, s. m. mitchell. _new york._--aaron burr, john s. hobart. _new jersey._--philemon dickinson, f. frelinghuysen. _pennsylvania._--albert gallatin, robert morris, james ross. _delaware._--john vining, kensey johns. _maryland._--john henry, richard potts. _virginia._--james monroe, john taylor, stevens t. mason. _north carolina._--benjamin hawkins, alexander martin. _south carolina._--pierce butler, ralph izard. _georgia._--william few, james jackson. _kentucky._--john browne, john edwards. representatives. _new hampshire._--nicholas gilman, j. s. sherburne, jeremiah smith, paine wingate. _vermont._--nathaniel niles, israel smith. _massachusetts._--fisher ames, s. bourne, david cobb, peleg coffin, henry dearborn, samuel dexter, dwight foster, benjamin goodhue, samuel holten, william lyman, t. sedgwick, george thatcher, p. wadsworth, artemas ward. _rhode island._--benjamin bourne, francis malbone. _connecticut._--joshua coit, james hillhouse, amasa learned, zephaniah swift, uriah tracy, j. trumbull, jeremiah wadsworth. _new york._--theodorus bailey, ezekiel gilbert, henry glenn, james gordon, silas talbot, t. tredwell, john e. van allen, philip van cortlandt, peter van gaasbeck, john watts. _new jersey._--john beatty, elias boudinot, lambert cadwalader, jonathan dayton, aaron kitchell. _pennsylvania._--james armstrong, william findlay, thomas fitzsimons, andrew gregg, thomas hartley, daniel heister, william irvine, william montgomery, frederick a. muhlenberg, peter muhlenberg, thomas scott, john smilie, john wilkes kittera. _delaware._--henry latimer. _maryland._--gabriel christie, george dent, uriah forrest, william hindman, john f. mercer, samuel smith, thomas sprigg, william vans murray. _virginia._--thomas claiborne, isaac coles, william b. giles, samuel griffin, george hancock, carter b. harrison, john heath, richard bland lee, andrew moore, joseph neville, anthony new, john nicholas, john page, francis preston, robert rutherford, a. b. venable, francis walker. _north carolina._--thomas blount, william j. dawson, james gillespie, william b. grove, matthew locke, nathaniel macon, joseph mcdowell, alexander mebane, benjamin williams, joseph winston. _south carolina._--lemuel benton, alexander gillon, john hunter, andrew pickens, william smith, richard winn. _georgia._--a. baldwin, thomas p. carnes. _kentucky._--christopher greenup, alexander d. orr. _tennessee._--james white. proceedings in the senate. monday, december , . this being the day fixed by the constitution for the annual meeting of congress, the following members of the senate appeared, produced their credentials, and took their seats. john adams, vice president of the united states and president of the senate. john langdon and samuel livermore, from new hampshire. george cabot, from massachusetts. oliver ellsworth, from connecticut. moses robinson, from vermont. aaron burr, from new york. john rutherford, from new jersey. robert morris and albert gallatin, from pennsylvania. james monroe, from virginia. john edwards, from kentucky. benjamin hawkins, from north carolina. ralph izard, from south carolina. mr. langdon, the president of the senate _pro tempore_, administered the oath required by law to the vice president of the united states. the secretary read the credentials of the following senators appointed for the terms respectively mentioned therein. pierce butler, from south carolina. alexander martin, from north carolina. john vining, from delaware. the vice president administered the oath required by law to mr. butler, mr. gallatin, and mr. martin, respectively, and they took their seats. stephen mix mitchell, appointed by the state of connecticut a senator for two years, in the place of roger sherman, deceased, produced his credentials, which being read, the vice president administered to him the oath required by law, and he took his seat. the vice president laid before the senate the petition of conrad laub and others, relative to the appointment of mr. gallatin, a senator of the united states; which was read and ordered to lie on the table. the vice president also communicated a letter from george read, of delaware, resigning his seat in the senate; which was read, and ordered to lie on the table. _ordered_, that the secretary acquaint the house of representatives that a quorum of the senate is assembled, and ready to proceed to business. _ordered_, that messrs. izard and langdon be a joint committee on the part of the senate, together with such committee as the house of representatives may appoint, on their part, to wait on the president of the united states, and notify him that a quorum of the two houses is assembled, and ready to receive any communications that he may be pleased to make to them. a message from the house of representatives informed the senate that the house had elected frederick a. muhlenberg their speaker, and that they have concurred with the senate in appointing a joint committee to wait on the president of the united states. mr. izard, from the joint committee who had waited on the president, reported that the president would meet the two houses to-morrow, at o'clock, in the senate chamber. tuesday, december . the two houses being assembled in the senate chamber, the president of the united states entered, and addressed the two houses of congress as follows: _fellow-citizens of the senate, and of the house of representatives:_ since the commencement of the term for which i have been again called into office, no fit occasion has arisen for expressing to my fellow-citizens at large the deep and respectful sense which i feel of the renewed testimony of public approbation. while, on the one hand, it awakened my gratitude for all those instances of affectionate partiality with which i have been honored by my country, on the other, it could not prevent an earnest wish for that retirement from which no private consideration should ever have torn me. but, influenced by the belief that my conduct would be estimated according to its real motives, and that the people, and the authorities derived from them, would support exertions having nothing personal for their object, i have obeyed the suffrage which commanded me to resume the executive power, and i humbly implore that being on whose will the fate of nations depends, to crown with success our mutual endeavors for the general happiness. as soon as the war in europe had embraced those powers with whom the united states have the most extensive relations, there was reason to apprehend that our intercourse with them might be interrupted, and our disposition for peace drawn into question by the suspicions too often entertained by belligerent nations. it seemed, therefore, to be my duty to admonish our citizens of the consequences of a contraband trade, and of hostile acts to any of the parties, and to obtain, by a declaration of the existing legal state of things, an easier admission of our right to the immunities belonging to our situation. under these impressions the proclamation which will be laid before you was issued. in this posture of affairs, both new and delicate, i resolved to adopt general rules, which should conform to the treaties and assert the privileges of the united states. these were reduced into a system, which will be communicated to you. although i have not thought myself at liberty to forbid the sale of the prizes permitted by our treaty of commerce with france to be brought into our ports, i have not refused to cause them to be restored when they were taken within the protection of our territory, or by vessels commissioned or equipped in a warlike form within the limits of the united states. it rests with the wisdom of congress to correct, improve, or enforce this plan of procedure; and it will probably be found expedient to extend the legal code and the jurisdiction of the courts of the united states to many cases which, though dependent on principles already recognized, demand some further provisions. where individuals shall, within the united states, array themselves in hostility against any of the powers at war, or enter upon military expeditions or enterprises within the jurisdiction of the united states; or usurp and exercise judicial authority within the united states; or where the penalties on violations of the law of nations may have been indistinctly marked, or are inadequate--these offences cannot receive too early and close an attention, and require prompt and decisive remedies. whatsoever those remedies may be, they will be well administered by the judiciary, who possess a long-established course of investigation, effectual process, and officers in the habit of executing it. in like manner, as several of the courts have doubted, under particular circumstances, their power to liberate the vessels of a nation at peace, and even of a citizen of the united states, although seized under a false color of being hostile property, and have denied their power to liberate certain captures within the protection of our territory, it would seem proper to regulate their jurisdiction in these points; but, if the executive is to be the resort in either of the two last-mentioned cases, it is hoped that he will be authorized by law to have facts ascertained by the courts, when, for his own information, he shall request it. the connection of the united states with europe has become extremely interesting. the occurrences which relate to it and have passed under the knowledge of the executive, will be exhibited to congress in a subsequent communication. when we contemplate the war on our frontiers, it may be truly affirmed that every reasonable effort has been made to adjust the causes of dissension with the indians north of the ohio. the instructions given to the commissioners evince a moderation and equity proceeding from a sincere love of peace and a liberality having no restriction but the essential interests and dignity of the united states. the attempt, however, of an amicable negotiation having been frustrated, the troops have marched to act offensively. although the proposed treaty did not arrest the progress of military preparation, it is doubtful how far the advance of the season, before good faith justified active movements, may retard them, during the remainder of the year. from the papers and intelligence which relate to this important subject, you will determine whether the deficiency in the number of troops granted by law shall be compensated by succors of militia, or additional encouragements shall be proposed to recruits. an anxiety has been also demonstrated by the executive for peace with the creeks and the cherokees. the former have been relieved with corn and with clothing, and offensive measures against them prohibited during the recess of congress. to satisfy the complaints of the latter, prosecutions have been instituted for the violence committed upon them. but the papers which will be delivered to you, disclose the critical footing on which we stand in regard to both those tribes, and it is with congress to pronounce what shall be done. _gentlemen of the house of representatives:_ the productiveness of the public revenues hitherto has continued to equal the anticipations which were formed of it, but it is not expected to prove commensurate with all the objects which have been suggested. some auxiliary provisions will, therefore, it is presumed, be requisite; and it is hoped that these may be made consistently with a due regard to the convenience of our citizens, who cannot but be sensible of the true wisdom of encountering a small present addition to their contributions, to obviate a future accumulation of burdens. but here i cannot forbear to recommend a repeal of the tax on the transportation of public prints. there is no resource so firm for the government of the united states as the affections of the people, guided by an enlightened policy; and to this primary good nothing can conduce more than a faithful representation of public proceedings, diffused without restraint, throughout the united states. an estimate of the appropriations necessary for the current service of the ensuing year, and a statement of a purchase of arms and military stores, made during the recess, will be presented to congress. _gentlemen of the senate, and of the house of representatives:_ the several subjects to which i have now referred open a wide range to your deliberations, and involve some of the choicest interests of our common country. permit me to bring to your remembrance the magnitude of your task. without an unprejudiced coolness, the welfare of the government may be hazarded; without harmony, as far as consists with freedom of sentiment, its dignity may be lost. but, as the legislative proceedings of the united states will never, i trust, be reproached for the want of temper or of candor, so shall not the public happiness languish from the want of my strenuous and warmest co-operation. g. washington. philadelphia, _december_ , . the president having retired, the two houses separated. on motion, a committee of five was appointed to report the draft of an address to the president, in answer to his speech to both houses. messrs. ellsworth, butler, izard, langdon, and rutherford, were named. thursday, december . the following message was received from the president of the united states: _gentlemen of the senate, and of the house of representatives:_ as the present situation of the several nations of europe, and especially of those with which the united states have important relations, cannot but render the state of things between them and us matter of interesting inquiry to the legislature, and may indeed give rise to deliberations to which they alone are competent, i have thought it my duty to communicate to them certain correspondences which, have taken place. the representative and executive bodies of france have manifested generally a friendly attachment to this country, have given advantages to our commerce and navigation, and have made overtures for placing these advantages on permanent ground. a decree, however, of the national assembly, subjecting vessels laden with provisions to be carried into their ports, and making enemy goods lawful prize in the vessel of a friend, contrary to our treaty, though revoked at one time as to the united states, has been since extended to their vessels also, as has been recently stated to us. representations on this subject will be immediately given in charge to our minister there, and the result shall be communicated to the legislature. it is with extreme concern i have to inform you that the proceedings of the person whom they have unfortunately appointed their minister plenipotentiary here have breathed nothing of the friendly spirit of the nation which sent him; their tendency, on the contrary, has been to involve us in war abroad and discord and anarchy at home. so far as his acts, or those of his agents, have threatened our immediate commitment in the war, or flagrant insult to the authority of the laws, their effect has been counteracted by the ordinary cognizance of the laws, and by an exertion of the powers confided to me. where their danger was not imminent, they have been borne with, from sentiments of regard to his nation, from a sense of their friendship towards us, from a conviction that they would not suffer us to remain long exposed to the action of a person who has so little respected our mutual dispositions, and, i will add, from a reliance on the firmness of my fellow-citizens in their principles of peace and order. in the mean time, i have respected and pursued the stipulations of our treaties, according to what i judged their true sense, and have withheld no act of friendship which their affairs have called for from us, and which justice to others left us free to perform. i have gone further: rather than employ force for the restitution of certain vessels which i deemed the united states bound to restore, i thought it more advisable to satisfy the parties by avowing it to be my opinion that, if restitution were not made, it would be incumbent on the united states to make compensation. the papers now communicated will more particularly apprise you of these transactions. the vexations and spoliation understood to have been committed on our vessels and commerce by the cruisers and officers of some of the belligerent powers, appeared to require attention. the proofs of these, however, not having been brought forward, the descriptions of citizens supposed to have suffered were notified that, on furnishing them to the executive, due measures would be taken to obtain redress of the past, and more effectual provisions against the future. should such documents be furnished, proper representations will be made thereon, with a just reliance on a redress proportioned to the exigency of the case. the british government having undertaken, by orders to the commanders of their armed vessels, to restrain generally our commerce in corn and other provisions to their own ports, and those of their friends, the instructions now communicated were immediately forwarded to our minister at that court. in the mean time, some discussions on the subject took place between him and them. these are also laid before you, and i may expect to learn the result of his special instructions in time to make it known to the legislature during their present session. very early after the arrival of a british minister here mutual explanations on the inexecution of the treaty of peace were entered into with that minister. these are now laid before you for your information. on the subjects of mutual interest between this country and spain, negotiations and conferences are now depending. the public good requiring that the present state of these should be made known to the legislature _in confidence only_, they shall be the subject of a separate and subsequent communication. g. washington. united states, _december , ._ friday, december . mr. ellsworth, from the committee appointed to report the draft of an address to the president of the united states, made a report; which was read, and ordered for consideration on monday next. monday, december . messrs. stephen r. bradley, from vermont, theodore foster, from rhode island, and rufus king, from new york, appeared and took their seats. agreeably to the order of the day, the senate took into consideration the draft of an address reported by the committee in answer to the speech of the president of the united states to congress at the opening of the session; which, being amended, and the several paragraphs of the report agreed to, it was adopted, as follows: "_to the president of the united states:_ "accept, sir, the thanks of the senate for your speech delivered to both houses of congress at the opening of the session. your re-election to the chief magistracy of the united states gives us sincere pleasure. we consider it as an event every way propitious to the happiness of our country; and your compliance with the call, as a fresh instance of the patriotism which has so repeatedly led you to sacrifice private inclination to the public good. in the unanimity which a second time marks this important national act, we trace, with particular satisfaction, besides the distinguished tribute paid to the virtues and abilities which it recognizes, another proof of that just discernment and constancy of sentiments and views which have hitherto characterized the citizens of the united states. "as the european powers with whom the united states have the most extensive relations were involved in war, in which we had taken no part, it seemed necessary that the disposition of the nation for peace should be promulgated to the world, as well for the purpose of admonishing our citizens of the consequences of a contraband trade and of acts hostile to any of the belligerent parties, as to obtain, by a declaration of the existing legal state of things, an easier admission of our right to the immunities of our situation; we, therefore, contemplate with pleasure the proclamation, by you issued, and give it our hearty approbation. we deem it a measure well-timed and wise, manifesting a watchful solicitude for the welfare of the nation, and calculated to promote it. "the several important matters presented to our consideration will, in the course of the session, engage all the attention to which they are respectively entitled; and, as the public happiness will be the sole guide of our deliberations, we are perfectly assured of receiving your strenuous and most zealous co-operation. "john adams, "_vice president of the united states, and president of the senate._" _ordered_, that messrs. ellsworth and butler wait on the president of the united states, and desire him to acquaint the senate at what time and place it will be most convenient for him that the foregoing address should be presented. tuesday, december . john brown, from the state of kentucky, attended to-day. mr. ellsworth reported, from the committee appointed yesterday to wait on the president of the united states, that the president proposed to receive the address of the senate this day, at o'clock, at his own house. whereupon, the senate waited on the president of the united states, and the vice president, in their name, presented the address agreed to on the ninth instant. to this address the president of the united states was pleased to make the following reply: "gentlemen: the pleasure expressed by the senate on my re-election to the station which i fill, commands my sincere and warmest acknowledgments. if this be an event which promises the smallest addition to the happiness of our country, as it is my duty, so shall it be my study, to realize the expectation. "the decided approbation which, the proclamation now receives from your house, by completing the proofs that this measure is considered as manifesting a vigilant attention to the welfare of the united states, brings with it a peculiar gratification to my mind. "the other important subjects which have been communicated to you will, i am confident, receive a due discussion; and the result will, i trust, prove fortunate to the united states. "g. washington." the senate then returned to their chamber, and resumed the reading of the papers communicated in the message of the president of the united states of the th instant, but adjourned before they were got through. wednesday, december . caleb strong, from massachusetts, attended to-day. the credentials of mr. brown and mr. strong were read, the usual oath administered to them, and they took their seats. friday, december . william bradford, from rhode island, and john taylor, from virginia, attended, produced their credentials, and took the usual oath and their seats. monday, december . james jackson, from georgia, attended, produced his credentials, and, the oath required by law being administered to him, he took his seat in the senate. tuesday, december . john vining, from delaware, appeared, and, the oath required by law being, by the vice president, administered to him, he took his seat in the senate. tuesday, december . _exclusion of bank officers and stockholders from congress._ the following motion was made and seconded, to wit: that the constitution be amended by adding, at the end of the ninth section of the first article, the following clause: "nor shall any person holding any office or stock in any institution in the nature of a bank for issuing or discounting bills or notes payable to bearer or order, under the authority of the united states, be a member of either house whilst he holds such office or stock, but no power to grant any charter of incorporation, or any commercial or other monopoly, shall be herein implied." and it was agreed that this motion should lie for consideration. tuesday, december . mr. rutherford reported, from the committee to whom was referred the petition of conrad laub and others, stating that the hon. albert gallatin, at the time he was elected a senator of the united states, had not been nine years a citizen of the said united states as is required by the constitution; which report was read, and ordered to lie for consideration. wednesday, january , . the senate proceeded to the consideration of the report of the committee to whom was referred the petition of conrad laub and others. on motion to postpone the consideration of the report until to-morrow, it was agreed to amend this motion, by striking out the words "to-morrow," and to insert, in lieu thereof, "thursday, the th instant." thursday, january . a motion was made that it be-- "_resolved, by the senate and house of representatives of the united states of america in congress assembled, two-thirds of both houses concurring_, that the following article be proposed to the legislatures of the several states, as an amendment to the constitution of the united states; which, when ratified by three-fourths of the said legislatures, shall be valid as part of the said constitution, to wit: "the judicial power of the united states shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the united states by citizens of another state, or by citizens or subjects of any foreign state." monday, january . the senate resumed the consideration of the petition of conrad laub and others, respecting the appointment of mr. gallatin to be a senator of the united states. on motion, _ordered_, that a committee of elections, to consist of seven, be appointed, and that the petition of conrad laub and others be referred, without prejudice as to any questions which may, upon the hearing, be raised by the sitting member, as to the sufficiency of the parties and the matter charged in the petition, to the same committee, to state the facts, and that they be authorized to send for persons, and papers; also, that messrs. bradley, ellsworth, mitchell, rutherford, brown, livermore, and taylor, be this committee. tuesday, january . agreeably to the order of the day, the senate took into consideration the motion made yesterday for an amendment to the constitution of the united states, respecting the judicial power thereof. and, on the question to agree to the resolution as follows: "_resolved by the senate and house of representatives of the united states of america in congress assembled, two-thirds of both houses concurring_, that the following article be proposed to the legislatures of the several states, as an amendment to the constitution of the united states; which, when ratified by three-fourths of the said legislatures, shall be valid as part of the said constitution, to wit; "the judicial power of the united states shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the united states, by citizens of another state, or by citizens or subjects of any foreign state:" it passed in the affirmative--yeas , nays , as follows: yeas.--messrs. bradford, bradley, brown, burr, butler, cabot, edwards, ellsworth, foster, frelinghuysen, hawkins, jackson, izard, king, langdon, livermore, martin, mitchell, monroe, robinson, strong, taylor, and vining. nays.--messrs. gallatin and rutherford. _ordered_, that the secretary desire the concurrence of the house of representatives in this resolution. wednesday, january . _exclusion of bank officers from a seat in congress._ the senate resumed the consideration of the motion made yesterday for an amendment to the constitution of the united states, inhibiting the holders of any office or stock in the bank of the united states from a seat in either house of congress. on motion to amend the motion, to be read as follows: "nor shall any person holding any office in any institution in the nature of a bank, under the authority of the united states be a member of either house whilst he holds such office; but no power to grant any charter of incorporation, or any commercial or other monopoly, shall be hereby implied." and, after debate, the further consideration thereof was postponed until to-morrow. thursday, january . the senate resumed the consideration of the motion made yesterday, to amend the motion under consideration the th instant, for an amendment to the constitution of the united states, inhibiting the holders of any office or stock in the bank of the united states from a seat in either house of congress. on motion to amend the amendment, so that it be read as follows: "nor shall any person holding any office in the bank of the united states be a member of either house whilst he holds such office; but no power to grant any charter of incorporation, or any commercial or other monopoly shall be hereby implied:" it passed in the affirmative--yeas , nays , as follows yeas.--messrs. bradley, brown, burr, butler, edwards, gallatin, hawkins, jackson, izard, martin, monroe, robinson, and taylor. nays.--messrs. bradford, cabot, ellsworth, foster, frelinghuysen, king, langdon, livermore, mitchell, morris, strong, and vining. on motion it was agreed to expunge the following clause of the motion last adopted: "but no power to grant any charter of incorporation, or any commercial or other monopoly, shall be hereby implied:" and, on the question, to agree to the motion, amended as follows: "nor shall any person holding any office in the bank of the united states be a member of either house, whilst he holds such office:" it passed in the negative--yeas , nays , as follows: yeas.--messrs. bradley, brown, burr, butler, edwards, gallatin, hawkins, jackson, martin, monroe, robinson, and taylor. nays.--messrs. bradford, cabot, ellsworth, foster, frelinghuysen, izard, king, langdon, livermore, mitchell, morris, strong, and vining. agreeably to notice given, mr. butler obtained leave to bring in a bill to amend the act, entitled "an act to incorporate the subscribers to the bank of the united states;" which was read the first time. on motion that this bill have a second reading, in the words following, to wit: "whereas it is inexpedient that the government of the united states should continue to hold any stock in the bank of the united states, or have any political connection with the said bank, or any other connection with it, otherwise than in common with other banks within the united states:" [the bill directs the sale of the united states stock in the bank, and repeals all the clauses in the charter establishing any connection with it:] it passed in the negative--yeas , nays , as follows: yeas.--messrs. bradley, brown, burr, butler, edwards, gallatin, hawkins, jackson, martin, monroe, robinson, and taylor. nays.--messrs. bradford, cabot, ellsworth, foster, frelinghuysen, izard, king, langdon, livermore, mitchell, morris, strong, and vining. tuesday, january . the following message was received from the president of the united states: _gentlemen of the senate, and of the house of representatives:_ having already laid before you a letter of the th of august, , from the secretary of state to our minister at paris, stating the conduct and urging the recall, of the minister plenipotentiary of the republic of france, i now communicate to you, that his conduct has been unequivocally disapproved; and that the strongest assurances have been given, that his recall should be expedited without delay. g. washington. united states, _january , ._ the message was read, and ordered to lie on file. the memorial of the people called quakers, from the yearly meeting held at rhode island for new england, in the year , was presented and read, praying congress to exercise the authority vested in them by the constitution for the suppression of the slave trade. _ordered_, that messrs. bradley, livermore, and brown, be a committee to take into consideration the laws passed in the territory of the united states north-west of the river ohio, from july to december, , inclusive, and report thereon to the senate. thursday, january . the following message was received from the president of the united states: _gentlemen of the senate, and of the house of representatives:_ communications have been made to congress during the present session, with the intention of affording a full view of the posture of affairs on the south-western frontiers. by the information which has lately been laid before congress, it appeared that the difficulties with the creeks had been amicably and happily terminated. but it will be perceived with regret, by the papers herewith transmitted, that the tranquillity has unfortunately been of short duration, owing to the murder of several friendly indians, by some lawless white men. the condition of things in that quarter requires the serious and immediate consideration of congress, and the adoption of such wise and vigorous laws as will be competent to the preservation of the national character and of the peace made under the authority of the united states with the several indian tribes. experience demonstrates that the existing legal provisions are entirely inadequate to those great objects. g. washington. united states, _january , ._ tuesday, february . a message from the house of representatives informed the senate that the house have passed a bill entitled "an act providing for the relief of such of the inhabitants of saint domingo resident within the united states as may be found in want of support," in which they desire the concurrence of the senate. this bill was read the first time, and ordered to a second reading. wednesday, february . the bill, sent from the house of representatives for concurrence, entitled "an act providing for the relief of such of the inhabitants of saint domingo, resident within the united states, as may be found in want of support," was read the second time; and, after debate, the further consideration thereof was postponed until to-morrow. thursday, february . mr. potts, from maryland, attended. the senate resumed the second reading of the bill sent from the house of representatives for concurrence, entitled "an act providing for the relief of such of the inhabitants of saint domingo, resident within the united states, as may be found in want of support." on motion, that it be recommitted, for the purpose of further inquiry, it passed in the negative. and after agreeing to an amendment, the bill was ordered to a third reading. friday, february . the following message was received from the president of the united states: _gentlemen of the senate, and of the house of representatives:_ i transmit to you an act and three ordinances, passed by the government of the territory of the united states south of the river ohio, on the th and st of march, and the th of may, ; and also certain letters from the minister plenipotentiary of the french republic, to the secretary of state, enclosing despatches from the general and extraordinary commission of guadaloupe. g. washington. united states, _february , ._ the message and papers therein referred to were read. _ordered_, that the act and three ordinances, mentioned in the message, be referred to the committee appointed st of january last, to whom were referred the laws passed in the territory north-west of the ohio, to consider and report thereon to the senate. _ordered_, that the other papers referred to in the message lie for consideration. the senate proceeded to the third reading of the bill, sent from the house of representatives for concurrence, entitled "an act providing for the relief of such of the inhabitants of saint domingo, resident within the united states, as may be found in want of support." whereupon, _resolved_, that this bill pass as amended. monday, february . the vice president laid before the senate a letter from the secretary of the department of the treasury, in reference to the orders of senate of the th january last, for a return of sundry statements from that department; which letter was read. mr. bradley reported from the committee to whom was referred the petition of conrad laub and others, respecting the appointment of mr. gallatin to be a senator of the united states; and the report was read. _ordered_, that wednesday next be assigned to take this report into consideration, and that, in the mean time, it be printed for the use of the senate. on motion, that the senate adopt the following resolution: "_resolved_, that the doors of the senate be opened, and continue open, during the discussion upon the contested election of albert gallatin:" _ordered_, that this motion lie on the table until to-morrow. tuesday, february . agreeably to the order of the day, the senate took into consideration the motion made yesterday that the doors of the senate be opened during the discussion of the contested election of mr. gallatin. whereupon, _resolved_, that the doors of the senate be opened, and continue open, during the discussion upon the contested election of albert gallatin. mr. bradley reported from the committee to whom was referred the act and three ordinances mentioned in the message from the president of the united states of the th instant, enacted and ordained by the governor and judges of the territory south of the river ohio, "that congress do not disapprove the same," and the report was agreed to. thursday, february . mr. burr, from the committee to whom was referred the message from the president of the united states, of the th of december last, reported a bill authorizing and directing the settlement of the accounts of major general lafayette; which was read the first time, and ordered to a second reading. friday, february . the bill authorizing and directing the settlement of the accounts of major general lafayette was read the second time, and, after debate, it was ordered to lie for consideration and inquiry. monday, february . the petition of michael schmyser, agent for conrad laub and others, petitioners against the election of albert gallatin to be a senator of the united states, was presented and read, praying to be heard by counsel. _ordered_, that the prayer of the petition be granted. the consideration of the report of the committee on the petition of conrad laub and others, respecting the election of mr. gallatin to be a senator of the united states, was resumed, and after progress, it was ordered that the consideration thereof be postponed until wednesday next. wednesday, february . james gunn, from georgia, took his seat in the senate. thursday, february . the senate resumed the consideration of the motion made yesterday, to amend the motion then reconsidered, respecting the opening the doors of the senate chamber whilst sitting in a legislative capacity. on motion to commit the motion for amendment, it passed in the negative. on motion, that the amendment be agreed to, it passed in the affirmative--yeas , nays , as follows: yeas.--messrs. bradley, brown, burr, butler, edwards, ellsworth, foster, gunn, hawkins, jackson, king, langdon, livermore, martin, monroe, potts, taylor, and vining. nays.--messrs. bradford, cabot, frelinghuysen, gallatin, izard, mitchell, morris, rutherford, and strong. on motion to adopt the resolution, amended as follows: "_resolved_, that, after the end of the present session of congress, and so soon as suitable galleries shall be provided for the senate chamber, the said galleries shall be permitted to be opened every morning, so long as the senate shall be engaged in their legislative capacity, unless in such cases as may, in the opinion of the senate, require secrecy, after which the said galleries shall be closed:" it passed in the affirmative--yeas , nays , as follows: yeas.--messrs. bradley, brown, burr, butler, edwards, ellsworth, foster, gallatin, gunn, hawkins, jackson, king, langdon, livermore, martin, monroe, potts, taylor, and vining. nays.--messrs. bradford, cabot, frelinghuysen, izard, mitchell, morris, rutherford, and strong. _contested election._ agreeably to the order of the day, the senate resumed the consideration of the report of the committee on the petition of conrad laub, and others, respecting the election of mr. gallatin to be a senator of the united states. the report of the committee states the evidence, and concludes with an opinion, that to controvert the allegations set forth in the petition against mr. g., it lays with him to prove his citizenship. accordingly, mr. g. presented a written statement of facts which the president of the senate read. it contained a narrative of several transactions from the time of mr. g.'s arrival in the province of maine, or massachusetts, about thirteen years ago. of his having contributed by money and his own services as a volunteer, in the cause of the revolution. of his having taken oaths of allegiance and purchased lands in that state, and also in the state of virginia. in the back parts of the last-mentioned state, he had formed an interesting settlement, and had been extremely useful in bringing settlers from europe. the dates of those transactions and times of his arrival in pennsylvania, and of being sent to the state convention, are also recited, up to the time of his being chosen one of their representatives in the senate of the united states. after the president had done reading the statement of facts, mr. g. addressed the senate, by observing, that he felt himself rather in an awkward predicament, not knowing whether the counsel for the prosecutors or himself were the proper person to speak the first, as this preliminary was not yet laid down by the senate, neither had he provided any counsel. he should have supposed himself in the situation of defendant, were it not that the weight of proving the affirmative in regard to citizenship had been laid on him, under which predicament it might perhaps be necessary for him to begin, and after the counsel for the petitioners had spoken, that he should then be allowed to close the arguments. mr. livermore was of opinion, that the sitting member should begin to debate, as the _onus probandi_ lay with him. the counsel for the petitioners, mr. lewis, rose. he was attended by mr. schmyser, one of the members of the senate of pennsylvania, who, we understand, manages the prosecution on the part of the petitioners. mr. l. hoped he would be permitted to say a few words in the early stage of the business, in regard to the manner of conducting it. he recapitulated sundry offices and posts of honor that had been conferred on him, from which he humbly presumed he had gathered much experience, and particularly in cases of contested elections. he would, therefore, beg leave of the honorable senate, to offer an observation before they should determine on the mode of conducting the trial. when the question for postponement, which was debated the other day, was before them, the sitting member did then consider himself as defendant, and for an hour had fought phantoms of his own imagination, but now he has changed his ground, and desires to have the privileges which belong to the petitioners only, namely, the right of opening the prosecution, and afterwards concluding the arguments. mr. gallatin submitted to the decision of the senate, and said he did not wish to contend for mere matters of form. mr. martin (from n. carolina) thought it immaterial who began or concluded, if in the end the senate should be enabled to arrive at a just degree of information. mr. jackson (from georgia) made some observations on the manner of conducting the business. he thought it would be incumbent on the counsel for the petitioners to prove that mr. gallatin was not a citizen, &c. mr. king (from new york) and some other gentleman of the senate, said a few more words on the motion; it was agreed that the sitting member should begin. mr. gallatin accordingly rose and recapitulated the facts stated in the written paper which he had presented to the president, commenting on each of them as he proceeded. he proved that he had been an inhabitant of the united states for thirteen years, and was one before the peace of , and before the confederation. he quoted the laws previous thereto respecting aliens, and also the british statutes, and he maintained that they were all done away by the revolution. he conceived himself a citizen in common with the other citizens of the united states, from the time of his first qualifying after his arrival and attachment to the country. he concluded by saying, he would reserve the remainder of his defence until after he should hear the counsel on behalf of the petitioners. mr. lewis commenced his speech by observing, that he appeared there on behalf of conrad laub, and other respectable men, who complained of the unconstitutionality of admitting mr. gallatin to a seat in the senate. he was glad to find, by the gentleman's expressions, that the ground of debate had been narrowed into so small a compass, and he would therefore take him up from the argument where he had left off speaking, that of his being a citizen in common of the united states, from the time of his qualifying in massachusetts or virginia. but in virginia two oaths are required, and they must be taken in a court, not before a magistrate, to entitle a man to citizenship. he must also be possessed of a certain quantity of property and be a resident for two years. it appears mr. g. did not remain in virginia more than two months. (here mr. lewis read the law of virginia of the th october, .) on this law mr. l. argued that mr. g. had not gone through the necessary qualifications to entitle him to citizenship there; and he observed, that he admired the gentleman's candor in not insisting on it here. in this state he had certainly not qualified himself agreeably to the law. under these circumstances, mr. l. for his part could never admit of the gentleman's right to citizenship so far back as to entitle him to the suffrage of a vote for a seat in the senate, &c. the mischievous consequences of permitting such innovations, he represented in strong terms; and he called to the recollection of the senate, the conduct of ancient and modern governments on this question. one of the ancient republics made it death for an alien to intermeddle in their politics. the sentiments of antiquity, and those of men in modern days, proved the justice of these conclusions. with regard to the arguments of the gentleman respecting his being entitled to be a citizen of the union, or any individual state of it, because he had qualified himself to be citizen of one of them, mr. l. said, was a mere bubble, for surely the gentleman was not one of the mass of citizens at the accomplishment of independence. the doctrine of the old law, which the gentleman says was done away by the revolution, in respect to aliens, may have been so with regard to the british king; it was still, however, virtually in force against the gentleman. but supposing it to be done away, how do the constitutions of the different states stand on this head? is it not implied by all of them, that certain oaths, residence, and property, make the requisites to form citizenship? in massachusetts a foreigner is not a citizen, without he complies with those terms. [here he quoted p. of the small volume of the laws of massachusetts. he also cited the act in favor of john jarvis and others; also, p. of the same book, and p. and .] from these he maintained, that no such wild idea was ever contemplated by either the law of massachusetts or virginia, as to admit foreigners or persons from other states to citizenship, immediately on their entrance within their limits. the situation of the sitting member, with respect to the constitution and laws of pennsylvania, he had little doubt was similar to what he had mentioned in regard to the other states, although he would not assert it as a fact. [he read the d section, and also in p. of the law of pennsylvania, th march, , a proviso which contains some precautions requiring records to be kept by the master of the rolls of the persons admitted to citizenship.] the same principle pervades all the states as well as it does the constitution of the united states. the absurdity of applying it in any other sense, was severely pictured by mr. l., and to admit the idea advanced by the sitting member, was as inadmissible as it was novel. in support of what he wished to impress on the minds of the senate, mr. l. quoted the st vol. of the journals of congress in and , pp. and . he then recurred to _blackstone_, vol. i, pp. , , and ; also and . it was not his intention to quote the parliamentary laws of england in support of any thing, but such parts of their common law as could be got over--that common law of england which was imported by our ancestors, and handed down to them by the people, not the parliament. the people had made the common law, from time to time. the saxons, normans, &c, were all concerned in making and improving it, until it had finally reached that degree of perfection in which it was given to us by our ancestors, and it was founded in wisdom and justice. mr. l. next quoted, first _blackstone_, , which was one of the british laws that had never been admitted in this country, and which, he hoped, never would, viz: that wherein the distinction is drawn between the commoner and the peer, an oath being required of the commoner, upon all occasions, and no more than "_upon my honor_" from a peer, except in giving evidence in civil or criminal trials. mr. l. concluded, by saying that the difficulties which stood between mr. gallatin and his seat, were insurmountable and could not be removed without showing a law of massachusetts, virginia, &c., repealing those laws in regard to the qualification of citizens, which he had mentioned, but which repeal he was certain did not exist. he therefore stated, that to insist upon the gentleman's right to a seat, was both novel and absurd. these were his opinions, which he had given in a perfectly extempore way, not having been allowed time nor expecting to meet the subject on the new ground which it had this day taken in the senate. mr. gallatin said, he would pledge himself to the senate, to prove that the grounds of his arguments and his construction of the confederation and laws of the states, were neither novel nor absurd, except in mr. l.'s construction of them, but had been admitted in many instances. however, as the common law of england was now introduced by mr. l., which was new ground to him, and as the hour of adjournment was nearly approaching, he would beg leave to make his reply to-morrow. on motion, the further consideration of this subject was postponed until to-morrow. friday, february . _contested election._ agreeably to the order of the day the senate resumed the consideration of the report of the committee on the petition of conrad laub, and others, respecting the election of mr. gallatin to be a senator of the united states. mr. gallatin commenced his defence by laying down the principles on which he intended to argue. his was a very serious situation for a person to be placed in, who had been so long in america, and who had mingled with the inhabitants in the common cause, that he should afterwards be called before so solemn a tribunal, with an intention to wrest from him his right of citizenship. he confessed, that on this occasion his feelings were deeply interested, particularly as the manner of the counsel for the prosecutors was so personal, and went not only to deny him a seat in the senate of the united states, but even to contest his citizenship, and denounce him as being yet an alien. this was a matter of consequence to many thousands as well as himself, who have long considered themselves in possession of all the privileges of denizens, and yet may be deprived of their rights, if the doctrines of the counsel for the prosecutors should obtain any sanction from the body who were now to judge of its merits. mr. g. entered into a series of observations on the various points of law, &c., which had been adduced by mr. lewis, and he particularly remarked, that the common law of england was entirely inapplicable to the subject under consideration. he read the laws of virginia respecting naturalization, &c., from which he insisted that he had long since become a citizen of the united states. he also quoted st _blackstone_, p. , and _viner's abridgment_, vol. ii. p. , respecting the different acceptations of denizen and citizen, and he went back so far as the british statutes in , to show the intention of the old government was to naturalize all persons who would go and reside in the colonies. he next mentioned the act of pennsylvania, of the st of august, , and commented on the principles generally entertained by most writers on the subjects of allegiance and citizenship. _blackstone_, , &c. an alien is a man born out of the allegiance of the king. but allegiance in england is not an allegiance to the country or to society, as it is understood in this country. in order to explain the principle of reciprocity, he observed, that when the two crowns of england and scotland were united under james, the inhabitants of scotland became naturalized in england, as if they had been natural-born subjects of that country. the allegiance in britain was personal to the king, and it has there this remarkable quality, that by the british laws allegiance can never be shaken off. this country, before the revolution, owed allegiance to the king, but that was destroyed by the declaration of independence, and then the inhabitants of the states became mutually citizens of every state reciprocally; and they continued so until such time as the states made laws of their own afterwards respecting naturalization. as soon as separate governments existed, allegiance was due to each, and here the allegiance was a reality, it was to the government and to society, whereas in britain it is merely fictitious, being only to one man. every man who took an active part in the american revolution, was a citizen according to the great laws of reason and of nature, and when afterwards positive laws were made, they were retrospective in regard to persons under this predicament, nor did those posterior laws invalidate the rights which they enjoy under the confederation. mr. g. here mentioned his having been an inhabitant of massachusetts before october, , and he also observed, that the law passed in that state was decisive against the common law of england. in quoting the laws of massachusetts, which were passed in , and afterwards, for naturalizing john gardner, and james martin, he remarked that they clearly implied that even a natural born subject, who had not acted in the revolution, and an absentee, was not entitled to citizenship. he likewise took notice of the case of mr. william smith, of south carolina, against whose election as a representative in congress, a petition was presented by doctor ramsay, although the decision of south carolina on that subject was exactly the reverse of massachusetts. in speaking of the difficulties that occurred in explaining the terms citizen and alien, he ran over a number of cases, and asked whether if a person had arrived in the united states during the war, from nova-scotia, or elsewhere, and had taken an active part against the enemy, would he not be better entitled to the right of a citizen, than even those who afterwards subscribed to the acts? the counsel for the prosecutors had admitted that a person who had been one of the mass of the people, at the declaration of independence, was a citizen. on the same principle, until a law passes to disprove that a man who was active in the revolution previous to the treaty of peace, was a citizen, he must be one _ipse facto_. mr. g. next read a quotation from the st vol. of _woodison_, p. , an english writer, who acknowledged that all persons were aliens at the recognition of independence, and that is a more liberal construction than the council for the petitioners would admit of, for by this construction, our sailors, &c., ought to be naturalized, lest they be alarmed by the british. the new constitution of the united states requires certain qualifications for members of congress, &c., but it does not deprive persons of their rights who were actually citizens before the constitution was ratified that made the states the united states. they were united by consent before, and consequently he was one of the people before the united states existed. he went on to read from the constitution of massachusetts, and several other states, sundry clauses in support of his reasoning, and recapitulated the several heads of mr. l.'s arguments, to each of which he replied. mr. g. said, that mr. lewis was unfortunate in producing the law of pennsylvania, for, by proving too much, he had proved nothing, for the d sec. of the constitution is retrospective, and by acknowledging the articles of confederation to be the supreme law of the land, persons who were reciprocally citizens before, are still left in full possession of the right. so far from any dangerous consequences arising on my construction of citizenship, said he, i think it must be evident, that there is more danger and absurdity in the counsel's own constructions. for, in remarking on the policy of nations, we find even slaves have been enfranchised by the great republics in times of common danger. the policy of america should be to make citizenship as easy as possible, for the purpose of encouraging population; even during the british dominion that was a principle laid down, and afterwards it was attempted to be varied; it is made one of the principal subjects of complaint in the declaration of independence, where it is expressly said, that the king endeavored to prevent the population of these states, by having laws made to obstruct the naturalization of foreigners. if there were any dangerous consequences to be apprehended from the former regulations on this subject, they are all remedied by the new constitution. therefore, no ill consequence or absurdity can follow. the author of the federalist supports this principle in vol. ii. p. , for he says, that it is a construction scarcely avoidable, that citizens of each of the states are mutually so in all of them. the first words in the constitution, "we the people," furnished another argument in support of mr. g's principles, which he turned to great advantage, still drawing an inference to show that mr. l.'s construction of the subject was most liable to difficulties and to mischievous consequences. he concluded by observing, that if there was any disfranchising clauses in the constitution of the united states, tending to deprive citizens of antecedent rights, all such clauses must be construed favorably, and were evidently on his side. with regard to a sentence that had been added, by the advice of counsel, to the affidavit of pelatiah webster, he made some remarks which tended to establish his own personal character, which he trusted would be found, when traced back to his nativity, to stand the test; and that his right to a seat in the senate would also stand upon an equally just foundation. mr. lewis denied having ever seen the affidavit of mr. webster, until it was shown him at the time the examination before the committee was going forward. mr. gallatin recriminated, that the clause of which he took notice, was not in the affidavit when mr. webster brought it to the committee, and that he had permitted it to be added with great reluctance. it was only the recital of a few words which passed between mr. g. and mr. w. in jest, some years since, wherein mr. g. had ironically said his name was sidney, probably alluding to some essays that had appeared in the newspapers under that signature, which had been generally attributed to the pen of another gentleman in the state. mr. jackson, in order to bring the merits of the subject directly before the senate, said he would move a resolution, that would have that effect; but upon mr. lewis's observing, that he had not yet closed his arguments, and at the instance of mr. butler, from south carolina, who said he would second mr. jackson's motion hereafter, it was withdrawn for the present. _ordered_, that the further consideration thereof be postponed until to-morrow. saturday, february . _contested election._ the senate resumed the consideration of the report of the committee on the petition of conrad laub, and others, respecting the election of mr. gallatin to be a senator of the united states. the greater part of the day was taken up by mr. lewis's pleadings, wherein he entered into a very extensive field of reasoning, and quoted a great number of authorities, in support of the principles on which he had set out last thursday, and to prove that in the true sense of the constitution of the united states, as well as of that of the state of pennsylvania, mr. gallatin was not duly qualified for the office of a senator, and therefore, he trusted that the honorable senate, upon mature reflection, would vacate his seat. mr. gallatin closed his defence in a short speech, wherein he quoted _vattel_, p. , and explained the d section of the constitution of pennsylvania, the liberal construction of which, he said, was in his favor, and the construction contended for by the counsel, absurd. he finished by reading a passage from _lord bacon's_ works, to show that where there is any doubt in the laws, it should operate in favor of the defendant, and he accordingly made no doubt but that the senate would validate his election. _ordered_, that the further consideration of the subject be postponed until monday next. a motion was made as follows: "_resolved_, that albert gallatin, returned to this house as a member for the state of pennsylvania, is duly qualified for, and elected to, a seat in the senate of the united states." _ordered_, that the consideration of this motion be postponed until monday next, and that a number of copies of the fourth article of the first confederation of the united states be printed for the use of the senate. monday, february . the senate resumed the consideration of the motion made the twenty-second instant, on the report of the committee on the petition of conrad laub, and others, respecting the election of mr. gallatin to be a senator of the united states; and, after progress, _ordered_, that the further consideration thereof be postponed until to-morrow. friday, february . the senate resumed the consideration of the d instant, on the report of the committee on the petition of conrad laub, and others, respecting the election of mr. gallatin to be a senator of the united states. and, on the question to agree to the motion, as follows: "_resolved_, that albert gallatin, returned to this house as a member for the state of pennsylvania, is duly qualified for, and elected to, a seat in the senate of the united states:" it passed in the negative--yeas , nays , as follows: yeas.--messrs. bradley, brown, burr, butler, edwards, gunn, jackson, langdon, martin, monroe, robinson, and taylor. nays.--messrs. bradford, cabot, ellsworth, foster, frelinghuysen, hawkins, izard, king, livermore, mitchell, morris, potts, strong, and vining. on motion that it be "_resolved_, that the election of albert gallatin to be a senator of the united states was void, he not having been a citizen of the united states the term of years required as a qualification to be a senator of the united states:" a motion was made to divide the question at the word "void;" and, on motion to agree to the first paragraph of the motion so divided, it passed in the affirmative--yeas , nays , as follows: yeas.--messrs. bradford, cabot, ellsworth, foster, frelinghuysen, hawkins, izard, king, livermore, mitchell, morris, potts, strong, and vining. nays.--messrs. bradley, brown, burr, butler, edwards, gunn, jackson, langdon, martin, monroe, robinson, and taylor. on motion to adopt the resolution as follows: "_resolved_, that the election of albert gallatin to be a senator of the united states was void, he not having been a citizen of the united states the term of years required as a qualification to be a senator of the united states:" it passed in the affirmative--yeas , nays . _resolved_, that an attested copy of the resolution of the senate, declaring the election of albert gallatin to be void, be transmitted by the president of the senate to the executive of the commonwealth of pennsylvania. friday, march . a message from the house of representatives informed the senate, that the house of representatives have passed a bill, entitled "an act to prohibit the carrying on the slave trade from the united states to any foreign place or country;" also, a bill, entitled "an act limiting the time for presenting claims for destroyed certificates of certain descriptions;" in which bills, severally, they desire the concurrence of the senate. thursday, march . the bill authorizing and directing the settlement of the accounts of major general lafayette was read the third time. _resolved_, that this bill pass, that it be engrossed, and that the title thereof be "an act allowing to major general lafayette his pay and emoluments while in the service of the united states." wednesday, march . the bill sent from the house of representatives for concurrence, entitled "an act to prohibit the carrying on the slave trade from the united states to any foreign place or country," was read the third time and passed. thursday, march . the bill to authorize the president of the united states, in certain cases, to alter the place for holding a session of congress, was read the second time. monday, march . kensey johns appeared and produced his credentials of an appointment by the governor of the state of delaware as a senator for the united states, which were read. whereupon, it was moved that they be referred to the consideration of the committee of elections before the said kensey johns should be permitted to qualify, who are directed to report thereon; and it passed in the affirmative--yeas , nays , as follows: yeas.--messrs. bradley, brown, burr, edwards, gunn, hawkins, jackson, langdon, livermore, martin, monroe, robinson, and taylor. nays.--messrs bradford, cabot, ellsworth, foster, frelinghuysen, izard, mitchell, morris, potts, rutherford, strong, and vining. the senate resumed the second reading of the bill to authorize the president of the united states, in certain cases, to alter the place for holding a session of congress. tuesday, march . the bill to authorize the president of the united states, in certain cases, to alter the place for holding a session of congress, was read the third time; and, being amended, _resolved_, that this bill pass, that it be engrossed, and that the title thereof be, "an act to authorize the president of the united states, in certain cases, to alter the place of holding a session of congress." wednesday, march . the bill, sent from the house of representatives for concurrence, entitled "an act limiting the time for presenting claims for destroyed certificates of certain descriptions," was read the third time. _resolved_, that this bill pass with amendments. a message from the house of representatives informed the senate, that the house have passed "a resolution laying an embargo on the vessels in the ports of the united states;" in which they desire the concurrence of the senate. friday, march . the senate resumed the consideration of the report of the committee of elections, to whom was referred the credentials of kensey johns, appointed by the executive of the state of delaware to be a senator of the united states; which report is as follows: "the committee of elections, to whom were referred the credentials of an appointment by the governor of the state of delaware, of kensey johns, as a senator of the united states, having had the same under consideration, report-- "that george read, a senator for the state of delaware, resigned his seat upon the th day of december, , and during the recess of the legislature of said state. "that the legislature of the said state met in january, and adjourned in february, . "that, upon the th day of march, and subsequent to the adjournment of the said legislature, kensey johns was appointed, by the governor of said state, to fill the vacancy occasioned by the resignation aforesaid. "whereupon, the committee submit the following resolution: "_resolved_, that kensey johns, appointed by the governor of the state of delaware, as a senator of the united states, for said state, is not entitled to a seat in the senate of the united states; a session of the legislature of the said state having intervened between the resignation of the said george read and the appointment of the said kensey johns." on the question to agree to this report, it passed in the affirmative--yeas , nays , as follows: yeas.--messrs. bradford, bradley, brown, burr, butler, cabot, edwards, ellsworth, frelinghuysen, gunn, hawkins, jackson, king, langdon, livermore, martin, mitchell, monroe, robinson, and taylor. nays.--messrs. foster, izard, morris, potts, rutherford, strong, and vining. _resolved_, that an attested copy of the resolution of the senate, on the appointment of kensey johns to be a senator of the united states, be transmitted, by the president of the senate, to the executive of the state of delaware. tuesday, may . the following message was received from the president of the united states: _gentlemen of the senate, and of the house of representatives:_ in the communications which i have made to congress during the present session relative to foreign nations, i have omitted no opportunity of testifying my anxiety to preserve the united states in peace. it is peculiarly, therefore, my duty, at this time to lay before you the present state of certain hostile threats against the territories of spain in our neighborhood. the documents which accompany this message develope the measures which i have taken to suppress them, and the intelligence which has been lately received. it will be seen from thence that the subject has not been neglected; that every power vested in the executive on such occasions has been exerted; and that there was reason to believe that the enterprise projected against the spanish dominions was relinquished. but it appears to have been revived upon principles which set public order at defiance, and place the peace of the united states in the discretion of unauthorized individuals. the means already deposited in the different departments of government are shown, by experience, not to be adequate to these high exigencies, although such of them as are lodged in the hands of the executive shall continue to be used with promptness, energy, and decision, proportioned to the case. but i am impelled, by the position of our public affairs, to recommend that provision be made for a stronger and more vigorous opposition than can be given to such hostile movements under the laws as they now stand. g. washington. united states, _may_ , . the message and papers therein referred to were read, and ordered to lie for consideration. wednesday, may . the following message was received from the president of the united states: _gentlemen of the senate, and of the house of representatives:_ i lay before you, in confidence, sundry papers by which you will perceive the state of affairs between us and the six nations, and the probable cause to which it is owing; and also certain information, whereby it would appear that some encroachment was about to be made on our territory by an officer and party of british troops. proceeding upon a supposition of the authenticity of this information, although of a private nature, i have caused the representation to be made to the british minister, a copy of which accompanies this message. it cannot be necessary to comment upon the very serious nature of such an encroachment, nor to urge that this new state of things suggests the propriety of placing the united states in a posture of effectual preparation for an event which, notwithstanding the endeavors making to avert it, may, by circumstances beyond our control, be forced upon us. g. washington. united states, _may , ._ the message and papers therein referred to were read, and ordered to lie for consideration. monday, june . a message from the house of representatives informed the senate, that the house, having finished the business of the session, are about to adjourn. _ordered_, that the secretary notify the house of representatives, that the senate likewise, having finished the business of the session, are about to adjourn; and, he having reported that he had delivered the message, the president of the senate, conformably to the resolution of the th instant, adjourned the senate to the day appointed by law for the next meeting of congress. third congress.--first session. proceedings and debates in the house of representatives. monday, december , . this being the day appointed by the constitution for the meeting of the present congress, the following members appeared and took their seats: _from new hampshire._--nicholas gilman, john s. sherburne, jeremiah smith, and paine wingate. _from massachusetts._--shearjashub bourne, david cobb, henry dearborn, benjamin goodhue, samuel holten, william lyman, theodore sedgwick, george thatcher, and artemas ward. _from connecticut._--amasa learned, uriah tracey, jonathan trumbull, and jeremiah wadsworth. _from vermont._--israel smith. _from new york._--theodorus bailey, ezekiel gilbert, henry glenn, james gordon, silas talbot, john e. van allen, philip van cortlandt, peter van gaasbeck, and john watts. _from new jersey._--john beatty, elias boudinot, lambert cadwalader, abraham clark, and jonathan dayton. _from pennsylvania._--james armstrong, william findlay, thomas fitzsimons, andrew gregg, thomas hartley, william irvine, john wilkes kittera, frederick augustus muhlenberg, peter muhlenberg, thomas scott, and john smilie. _from maryland._--george dent and samuel smith. _from virginia._--william b. giles, carter b. harrison, john heath, richard bland lee, james madison, andrew moore, anthony new, john nicholas, francis preston, robert rutherford, abraham venable, and francis walker. _from kentucky._--christopher greenup. _from north carolina._--thomas blount, william johnson dawson, matthew looke, nathaniel macon, and alexander mebane. _from south carolina._--william smith. _from georgia._--abraham baldwin and thomas p. carnes. a quorum of the members being present, the house proceeded to ballot for a speaker, when it appeared that frederick a. muhlenberg, one of the members from pennsylvania, was elected; whereupon he was conducted to the chair; and made his acknowledgments to the house.[ ] the house then proceeded, in the same manner, to the appointment of a clerk, when john beckley was appointed. the usual oath was then administered to the members. messages were interchanged between the two houses, announcing their formation and readiness to proceed to business. joseph wheaton was appointed sergeant-at-arms, gifford dally as doorkeeper, and thomas claxton as assistant doorkeeper. a joint committee was appointed by the two houses to wait on the president of the united states, to inform him that a quorum of the two houses is assembled, and ready to receive any communication that he may think proper to make to them. _resolved_, that two chaplains, of different denominations, be appointed, one by each house, to interchange weekly. _resolved_, that a standing committee of elections be appointed; also a committee to report rules and orders of proceeding. tuesday, december . joseph mcdowell and benjamin williams, from north carolina, appeared, and took their seats. a message from the senate announced their readiness to receive the communication from the president of the united states. the speaker and members withdrew to the senate chamber, where the president attended, and delivered his speech to the two houses, which will be found in the proceedings of the senate. on the return of the members, the speech was committed to a committee of the whole. wednesday, december . peleg coffin, jr., from massachusetts, william montgomery, from pennsylvania, and william vans murray, from maryland, appeared, produced their credentials, and took their seats in the house; the oath to support the constitution of the united states being first administered to them by the speaker, according to law. the house resolved itself into a committee of the whole house on the speech of the president of the united states to both houses of congress; and, after some time spent therein, the chairman reported that the committee had had the said speech under consideration, and come to a resolution thereupon; which was twice read, and agreed to by the house, as follows: _resolved_, that it is the opinion of this committee that a respectful address ought to be presented by the house of representatives to the president of the united states, in answer to his speech to both houses of congress, at the commencement of this session, containing assurances that this house will take into consideration the various and important matters recommended to their attention. _ordered_, that messrs. madison, sedgwick, watts, hartley, and samuel smith, be appointed a committee to prepare an address pursuant to the said resolution. thursday, december . mr. madison, from the committee appointed, presented an address to the president of the united states, in answer to his speech to both houses of congress; which was read, and ordered to be committed to a committee of the whole house to-morrow. friday, december . james hillhouse, from connecticut, and josiah parker, from virginia, appeared, and took their seats. mr. william smith, from the standing committee of elections, reported that the committee had, in part, examined the certificates and other credentials of the members returned to serve in this house, and had agreed upon a report; which was read, and is as follows: "it appears to your committee, that the credentials of the following members are sufficient to entitle them to take their seats in the house, to wit:" [after enumerating the names of the members whose credentials were examined, the report concludes:] "your committee further report that, in the case of john patton, returned as a member for the state of delaware, the executive of the said state have, together with the return, transmitted a protest, made to them by henry latimer, of the said state, against the return of the said john patton." _ordered_, that the said report do lie on the table. the house resolved itself into a committee of the whole house on the address to the president of the united states, in answer to his speech to both houses of congress; and, after some time spent therein, the chairman reported that the committee had had the said address under consideration, and made no amendment thereto. _resolved, unanimously_, that this house doth agree to the said address, in the words following: sir: the representatives of the people of the united states, in meeting you for the first time since you have been again called, by a unanimous suffrage, to your present station, find an occasion, which they embrace with no less sincerity than promptitude, for expressing to you their congratulations on so distinguished a testimony of public approbation, and their entire confidence in the purity and patriotism of the motives which have produced this obedience to the voice of your country. it is to virtues which have commanded long and universal reverence, and services from which have flowed great and lasting benefits, that the tribute of praise may be paid without the reproach of flattery; and it is from the same sources that the fairest anticipations may be derived in favor of the public happiness. the united states having taken no part in the war which had embraced in europe the powers with whom they have the most extensive relations, the maintenance of peace was justly to be regarded as one of the most important duties of the magistrate charged with the faithful execution of the laws. we accordingly witness, with approbation and pleasure, the vigilance with which you have guarded against an interruption of that blessing, by your proclamation, admonishing our citizens of the consequences of illicit or hostile acts towards the belligerent parties; and promoting, by a declaration of the existing legal state of things, an easier admission of our right to the immunities belonging to our situation. the connection of the united states with europe has evidently become extremely interesting. the communications which remain to be exhibited to us will, no doubt, assist in giving us a fuller view of the subject, and in guiding our deliberations to such results as may comport with the rights and true interests of our country. we learn, with deep regret, that the measures, dictated by a love of peace, for obtaining an amicable termination of the afflicting war on our frontiers, have been frustrated, and that a resort to offensive measures should have again become necessary. as the latter, however, must be rendered more satisfactory, in proportion to the solicitude for peace, manifested by the former, it is to be hoped they will be pursued under the better auspices, on that account, and be finally crowned with more happy success. in relation to the particular tribe of indians against whom offensive measures have been prohibited, as well as on all the other important subjects which you have presented to our view, we shall bestow the attention which they claim. we cannot, however, refrain, at this time, from particularly expressing our concurrence in your anxiety for the regular discharge of the public debts, as fast as circumstances and events will permit, and, in the policy of removing any impediments that may be found in the way of a faithful representation of public proceedings throughout the united states, being persuaded, with you, that on no subject more than the former can delay be more injurious, or an economy of time more valuable; and that, with respect to the latter, no resource is so firm for the government of the united states as the affections of the people, guided by an enlightened policy. throughout our deliberations we shall endeavor to cherish every sentiment which may contribute to render them conducive to the dignity as well as to the welfare of the united states. and we join with you in imploring that being, on whose will the fate of nations depends, to crown with success our mutual endeavors. _resolved_, that mr. speaker, attended by the house, do present the said address, and that mr. madison, mr. sedgwick, and mr. hartley, be a committee to wait on the president, to know when and where it will be convenient for him to receive the same. mr. madison, from the committee appointed to wait on the president of the united states, to know when and where it will be convenient for him to receive the address of this house, in answer to his speech to both houses of congress, reported that the committee had waited on the president, who signified to them that it would be convenient to him to receive the said address at o'clock, to-morrow, at his own house. saturday, december . peleg wadsworth, from massachusetts, and joseph neville, from virginia, appeared, produced their credentials, and took their seats. the speaker, attended by the house, then withdrew to the house of the president of the united states, and there presented to him the address of this house, in answer to his speech to both houses of congress; to which the president made the following reply: gentlemen: i shall not affect to conceal the cordial satisfaction which i derive from the address of the house of representatives. whatsoever those services may be which you have sanctioned by your favor, it is a sufficient reward that they have been accepted as they were meant. for the fulfilment of your anticipations of the future, i can give no other assurance than that the motives which you approve shall continue unchanged. it is truly gratifying to me to learn that the proclamation has been considered as a seasonable guard against the interruption of the public peace. nor can i doubt that the subjects which i have recommended to your attention as depending on legislative provisions, will receive a discussion suited to their importance. with every reason, then, it may be expected that your deliberations, under the divine blessing, will be matured to the honor and happiness of the united states. g. washington. monday, december . gabriel christie, from maryland, thomas claiborne and george hancock, from virginia, joseph winston, from north carolina, john hunter and andrew pickens, from south carolina, appeared, produced their credentials, and took their seats in the house. tuesday, december . the house resumed the reading of the communications received from the president of the united states, on thursday last, and made a further progress therein. wednesday, december . benjamin bourne and francis malbone, from rhode island, appeared, produced their credentials, and took their seats in the house. friday, december . thomas tredwell, from new york, and john patton, from delaware, appeared, produced their credentials, and took their seats. _ordered_, that a committee be appointed to prepare and bring in a bill to establish a uniform system of bankruptcy throughout the united states; and that mr. giles, mr. william smith, mr. ames, mr. hartley, mr. hillhouse, mr. fitzsimons, and mr. boudinot, be the said committee. monday, december . samuel dexter, junior, from massachusetts, joshua coit and zephaniah swift, from connecticut, and richard winn, from south carolina, appeared, produced their credentials, and took their seats. thursday, december . the speaker laid before the house a letter from the secretary of state, accompanying a report on the privileges and restrictions on the commerce of the united states in foreign countries, made pursuant to a resolution of the house of the twenty-third of february, one thousand seven hundred and ninety-one; which was read, and ordered to be committed to the committee of the whole house, to whom are committed the confidential communications from the president respecting the measures which have been pursued for obtaining a recognition of the treaty between the united states and morocco, and for the ransom of prisoners and establishment of peace with the algerines. friday, december . william hindman, from maryland, and samuel griffin, from virginia, appeared, produced their credentials, and took their seats. monday, december . alexander d. orr, from kentucky, appeared, produced his credentials, and took his seat in the house. thursday, december . a petition of abram trigg, of the state of virginia, was presented to the house and read, complaining of an undue election and return of francis preston, to serve as a member of this house for the said state. _ordered_, that the said petition be referred to the committee of elections; that they do examine the matter thereof, and report the same, with their opinion thereon, to the house. friday, december . daniel heister, from pennsylvania, appeared, produced his credentials, and took his seat in the house. wednesday, january , . uriah forrest and thomas sprigg, from maryland, appeared, produced their credentials, and took their seats in the house. thursday, january . isaac coles, from virginia, and william barry grove, from north carolina, appeared, produced their credentials, and took their seats in the house. friday, january . _commerce of the united states._[ ] the house resolved itself into a committee of the whole house on the report of the secretary of state on the privileges and restrictions on the commerce of the united states in foreign countries. mr. madison, after some general observations on the report, entered into a more particular consideration of the subject. he remarked, that the commerce of the united states is not, at this day, on that respectable footing to which, from its nature and importance, it is entitled. he recurred to its situation previous to the adoption of the constitution, when conflicting systems prevailed in the different states. the then existing state of things gave rise to that convention of delegates from the different parts of the union, who met to deliberate on some general principles for the regulation of commerce, which might be conducive, in their operation, to the general welfare, and that such measures should be adopted as would conciliate the friendship and good faith of those countries who were disposed to enter into the nearest commercial connections with us. but what has been the result of the system which has been pursued ever since? what is the present situation of our commerce? from the situation in which we find ourselves after four years' experiment, he observed, that it appeared incumbent on the united states to see whether they could not now take measures promotive of those objects for which the government was in a great degree instituted. measures of moderation, firmness, and decision, he was persuaded, were now necessary to be adopted, in order to narrow the sphere of our commerce with those nations who see proper not to meet us on terms of reciprocity. mr. m. then read the following resolutions: [the principle of these resolutions will be best seen in the debates upon them.] mr. m. took a general view of the probable effects which the adoption of something like the resolutions he had proposed, would produce. they would produce, respecting many articles imported, a competition which would enable countries who do not now supply us with those articles, to do it, and would increase the encouragement on such as we can produce within ourselves. we should also obtain an equitable share in carrying our own produce; we should enter into the field of competition on equal terms, and enjoy the actual benefit of advantages which nature and the spirit of our people entitle us to. he adverted to the advantageous situation this country is entitled to stand in, considering the nature of our exports and returns. our exports are bulky, and therefore must employ much shipping, which might be nearly all our own: our exports are chiefly necessaries of life, or raw materials, the food for the manufacturers of other nations. on the contrary, the chief of what we receive from other countries, we can either do without, or produce substitutes. it is in the power of the united states, he conceived, by exerting her natural rights, without violating the rights, or even the equitable pretensions of other nations--by doing no more than most nations do for the protection of their interests, and much less than some, to make her interests respected; for, what we receive from other nations are but luxuries to us, which, if we choose to throw aside, we could deprive part of the manufacturers of those luxuries, of even bread, if we are forced to the contest of self-denial. this being the case, our country may make her enemies feel the extent of her power. we stand, with respect to the nation exporting those luxuries, in the relation of an opulent individual to the laborer, in producing the superfluities for his accommodation; the former can do without those luxuries, the consumption of which gives bread to the latter. he did not propose, or wish that the united states should at present go so far in the line which his resolutions point to, as they might go. the extent to which the principles involved in those resolutions should be carried, will depend upon filling up the blanks. to go to the very extent of the principle immediately, might be inconvenient. he wished, only, that the legislature should mark out the ground on which we think we can stand; perhaps it may produce the effect wished for, without unnecessary irritation; we need not at first go every length. another consideration would induce him, he said, to be moderate in filling up the blanks--not to wound public credit. he did not wish to risk any sensible diminution of the public revenue. he believed that if the blanks were filled with judgment, the diminution of the revenue, from a diminution in the quantity of imports, would be counterbalanced by the increase in the duties. the last resolution he had proposed, he said, is, in a manner, distinct from the rest. the nation is bound by the most sacred obligation, he conceived, to protect the rights of its citizens against a violation of them from any quarter; or, if they cannot protect, they are bound to repay the damage. it is a fact authenticated to this house by communications from the executive, that there are regulations established by some european nations; contrary to the law of nations, by which our property is seized and disposed of in such a way that damages have accrued. we are bound either to obtain reparation for the injustice, or compensate the damage. it is only in the first instance, no doubt, that the burden is to be thrown upon the united states. the proper department of government will, no doubt, take proper steps to obtain redress. the justice of foreign nations will certainly not permit them to deny reparation when the breach of the law of nations appears evidently; at any rate, it is just that the individual should not suffer. he believed the amount of the damages that would come within the meaning of this resolution, would not be very considerable. mr. m.'s resolutions being seconded, were presented and read by the clerk. mr. w. smith rose to make some remarks on the observations of mr. madison, when a motion was made by mr. fitzsimons, that the committee should rise, and report progress, and that the house should give order for printing the resolutions. after some further remarks by two or three members, mr. madison said he had no wish to precipitate the discussion; he was content that the committee should now rise, and that a future early day should be assigned. monday, january . james gillespie, from north carolina, appeared, produced his credentials, and took his seat in the house. _pay of soldiers._ the house resolved itself into a committee of the whole house on the bill for completing and better supporting the military establishment of the united states. the bill being read, on the clause of the bill for augmenting the pay of the soldiers from three to four dollars per month, mr. irvine proposed an addition of a fifth dollar, which seemed to meet the unanimous sense of the members; but mr. clark thought this last augmentation too great. they might, in this way of proceeding, raise the pay in time to ten dollars a month. mr. scott was of opinion that there was no just proportion between the wages of ordinary labor and that of military service. he could not hire a workman, who was to sleep at peace in his bed, and to dine at a good table, for the pay that was given to a soldier for enduring the hardships of his dangerous profession. an augmentation of their pay would flatter the troops. it would put them in good humor; and therefore he hoped that the five dollars would be carried through the house. mr. smilie said, that the expense of living had been considerably raised in every part of the united states. the pay of the soldiers ought, in common justice, to be advanced in an equal degree with that of the other persons employed in the service of the state. congress had lately received a petition from some gentlemen employed in the public offices of philadelphia. the officers of the army had been talking of a similar necessity of an advance in their pay. the united states ought to pay well, that they might obtain good men. many recruits had, upon late occasions, enlisted, and several of them in philadelphia, who never should have been admitted into the military establishment of any nation whatever. mr. wadsworth did not see any reason for the proposed additional dollar per month. if he had thought it necessary, he should have been very ready to mention it. in the states north of pennsylvania, the wages of a common laborer were not, upon the whole, superior to those of a common soldier. it had been alleged that, by augmenting the pay of the troops, we should get better men. this was a doctrine which he, for one, did not understand. the present western army were as good troops as ever went into the field, and much better than the late continental army. men of a sober character did not and would not enlist. recruits might have very good morals, and it was certain that many honest men did not love labor. curiosity, levity, the heat of youth, and other very excusable motives, sent people to the army; but it never was, nor never will be, the place where a thoughtful and industrious private man would be ambitious to exert his talents. for this reason, he was convinced that to enlarge the pay would answer no good purpose. as to the militia, who were, many of them, substantial people, it was in vain to imagine that they would fulfil the end of an army in the indian war. they had been tried, and the experiment had failed. he again adverted to the impossibility of supplying the ranks with recruits above the most ordinary classes of life. he never had seen an army, such as it was believed that the additional dollar would assemble, and he despaired ever to see such an army. there was, however, an act of bounty, which might be of infinite service to the troops, and which he should take a future opportunity of moving. he referred to a provision for the widows and children of such soldiers as should happen to lose their lives in the service. mr. boudinot said, that he should be very sorry to recommend the augmentation, if he thought that it would induce farmers, and sober, industrious people to quit their families and professions in exchange for a military life. this, he thought, would indeed be a very alarming consequence, and, did he apprehend it, he should undoubtedly oppose the intended increase. he had no apprehensions of that kind. america would be in a very bad situation, indeed, if an additional pay of twelve dollars a year could bribe a farmer or manufacturer to enlist. he should look very strange at any of his neighbors who should tell him that they had embraced such an offer. instead of augmenting the pay, perhaps it was better to add something to the rations; those, for example, of salt and flour. he thought it safest to agree to the four dollars, because if they voted for five, the bill would probably be thrown out of the other house; and thus, by grasping at too much, the movers of the amendment would lose the bill altogether. originally, troops had been raised for less than two dollars per month. the pay had since been augmented to three, and was now on the way of being raised to four. he wished to make its advances gradual. if we looked at the situations of other countries, and contemplated the state of their finances, we should be convinced that america paid her troops as well in proportion to her ability as any other people in the world, and that her soldiers had no right to complain. mr. montgomery spoke a few words in favor of an advance to five dollars. mr. scott said, that pennsylvania had some time ago raised a few companies of soldiers for her frontier service, and given them two pounds ten shillings currency per month, which was equal to six dollars and two-thirds. in consequence of this, the companies had been filled with some of the most respectable kind of people in the country. they were quite of a different class from the recruits raised for the western army. he wished to try the five dollars. this superior pay was reported to have hurt the continental recruiting service. he thought it very possible that such had been the case. if government give the proposed five dollars, the continental army might, perhaps, get all the levies which it wanted from these very companies. mr. hunter would have voted for six dollars. mr. beatty said, that he was for giving five dollars, from a conviction that it was requisite for the service. mr. smilie was decidedly for the additional augmentation. the recruits, he said, who had been raised in this city were sad fellows, and not fit to be trusted. better pay would bring forward better men. mr. smith said that, as to the rate of labor, good men were hired to work in vermont for eighteen pounds a year, which is equal to four dollars per month, and out of that they find their own clothes. he thought it a very dangerous plan to raise the wages of soldiers at this time, when every article was above its natural price; because, when things return to their old level, it would be impossible to reduce their wages. the people of europe had, by their wars, increased the demand for the produce of our farms, and this had raised the wages of labor. the members of congress had six dollars per day, and it would be no easy matter to alter that, which he seemed to hint might not be quite improper. he thought that high pay would only serve to make the soldiers get drunk. it would be much better to give them some substantial gratification at the end of the service. mr. wadsworth said that the army, in getting four dollars, got plenty, and he despaired of seeing five dollars pass through that house; but, were they to vote twenty dollars, they never would be able to enlist that class of men whom it was expected five dollars would collect. a member had mentioned, as a proof of the possibility of enlisting the sons of farmers, the instance of a party in one of the new england states, who had formed themselves into a military body, and had gone westward in quest of a settlement, but were cut to pieces by the indians. he knew this; and he had likewise heard of others who had since gone from the same quarter, and upon the same errand. he had inquired about their characters, and had found, just as he had expected, that they were very honest, good sort of people, but somewhat of a rambling disposition, and not remarkably industrious. as to the notion of enlisting men, and attaching them to their country, by five dollars a month, it would not do. the old continental army were very good soldiers, but certainly some of them did not fight for the sake of their country, since they deserted by scores. they were, however, brought back, and fought very well. their reasons for deserting, he did not pretend to know; but this he knew, that they were very idle and very worthless fellows, which did not hinder them from doing their duty. mr. w. added, that it was a mistake to propose giving five dollars a month for fear that we should not be able to get recruits. in a short time our communication by sea would be cut off. we would likewise be prevented from emigrations into the back country. recruits would then be had in the greatest abundance for four dollars a month, as great numbers of people would then be thrown out of employment, and enlist for want of it. the amendment to the bill, of adding two dollars instead of one, was rejected. mr. clark then moved, as an amendment of the bill, that there should be an addition of four ounces of bread or flour, and four ounces of meat to each ration. mr. hartley was for augmenting the rations. he knew that they were too small. in cultivated countries they might do, but not in the backwoods, where vegetables were not to be had. mr. wadsworth was convinced that the rations were sufficient unless on a march. he spoke, he said, from experience. mr. giles had been frequently informed by officers in the army, that the rations were all defective. in the backwoods, the soldiers had been often reduced to such distress for want of vegetables, as to go in search of acorns to supply their place. mr. fitzsimons said, that he had been informed that the principal objection to the rations was the inferior quality of the meat, and that this arose from the leanness of the cattle, as being exhausted by hard driving. instead, therefore, of a regular increase, it might perhaps be better to provide for accidental contingencies. mr. murray moved, and his motion was seconded, to amend the amendment by striking out the words, and "four ounces of meat." mr. smith said, that an aide-de-camp, who was his relation, and now serving in the army, had wrote him that they were just now well fed, well clothed, in good health, and as good spirits as an army had ever enjoyed. the reason of the common rations of provisions failing in a march, was owing to the waste in cooking. the amendment of mr. clark, and the additional amendment of mr. murray, were both withdrawn. the committee now rose and reported the amendment, and the bill and amendment were ordered to lie on the table. _resolved_, that a committee be appointed to report whether any, and what, alteration ought to be made in the ration now allowed to the troops of the united states; and that mr. irvine, mr. dearborn, and mr. heister, be the said committee. tuesday, january . _flag of the united states._ the house resolved itself into a committee of the whole house on the bill sent from the senate, entitled "an act making an alteration in the flag of the united states." mr. goodhue thought it a trifling business, which ought not to engross the attention of the house, when it was their duty to discuss matters of infinitely greater consequence. if we are to alter the flag from thirteen to fifteen stripes, with two additional stars, because vermont and kentucky have been added, we may go on adding and altering at this rate for one hundred years to come. it is very likely, before fifteen years elapse, we shall consist of twenty states. the flag ought to be permanent. mr. lyman was of a different opinion. he thought it of the greatest consequence not to offend the new states. mr. thatcher ridiculed the idea of being at so much trouble, as a consummate specimen of frivolity. at this rate, every state should alter its public seal when an additional county or township was formed. he was sorry to see the house take up their time with such trifles. mr. greenup considered it of very great consequence to inform the rest of the world that we had now two additional states. mr. niles was very sorry that such a matter should even for a moment have hindered the house from going into more important affairs. he did not think the alteration either worth the trouble of adopting or rejecting; but he supposed that the shortest way to get rid of it was to agree to it, and for that reason, and no other, he advised to pass it as soon as possible. the committee agreed to it, and the chairman reported the bill. the house then took it up. mr. boudinot thought it of consequence to keep the citizens of vermont and kentucky in good humor. they might be affronted at our rejecting the bill. mr. goodhue said, he felt for the honor of the house, when spending their time on such sort of business. but, since it must be passed, he had only to beg this favor, that it might not appear upon the journals, and go into the world as the first of the bills passed this session. mr. madison was for the bill passing. mr. giles thought it very proper that the idea should be preserved of the number of our states, and the number of stripes corresponding. the expense was but trifling, compared with that of forming the government of a new state. mr. smith said, that this alteration would cost him five hundred dollars, and every vessel in the union sixty. he could not conceive what the senate meant by sending them such bills. he supposed that it must be for want of something better to do. he should indulge them, but let us have no more alterations of this sort. let the flag be permanent. it was ordered that the bill be read a third time to-morrow. friday, january . _french emigrants from st. domingo._ mr. samuel smith, from the committee to whom was referred the petition of william patterson, samuel sterrett, and gustavus scott, the committee appointed by the legislature of maryland to draw and distribute the moneys granted by that state for the relief of the french emigrants from the island of st. domingo, made a report: mr. s. smith said, that there never was a more noble and prompt display of the most exalted feelings, than had been exhibited on this occasion. he believed that such a scene of distress had never before been seen in america. three thousand fugitives had been at once landed, without the least previous expectation of their arrival. the whole inhabitants instantly assembled, and deputed a committee, of which he was one, to go on board the vessels, and examine their situation. thirteen thousand dollars were instantly subscribed. fifteen hundred of these people were quite helpless; three hundred and fifty of them were old men, or women without their husbands, or children without their parents. some had credit, and some had not. five hundred of them had been sent to france by the minister, at the expense of the republic; the rest remain in this country. mr. madison wished to relieve the sufferers, but was afraid of establishing a dangerous precedent, which might hereafter be perverted to the countenance of purposes very different from those of charity. he acknowledged, for his own part, that he could not undertake to lay his finger on that article in the federal constitution which granted a right to congress of expending, on objects of benevolence, the money of their constituents. and if once they broke the line laid down before them, for the direction of their conduct, it was impossible to say to what lengths they might go, or to what extremities this practice might be carried. he did not agree with the member who spoke last, that nothing like the generosity of america had ever been heard of before. as one example in contradiction to this assertion, he mentioned, that when the city of lisbon had, in , been overwhelmed by an earthquake, the parliament of england instantly voted one hundred thousand pounds for the support of the sufferers. in doing this, they had, he believed, acted in unison with the feelings of the british nation, and such feelings did that nation the utmost honor. he likewise imagined, that the parliament had acted agreeably to the british constitution, which allowed them an indefinite and absolute right in disposing of the money of their constituents. but as to the american congress, the case was widely different. he was satisfied that the citizens of the united states possessed an equal degree of magnanimity, generosity, and benevolence, with the people of britain, but this house certainly did not possess an undefined authority correspondent with that of a british parliament. he wished that some other mode could be devised for assisting the french sufferers than by an act of congress. he was in hopes that some other mode, equally effectual, and less exceptionable, might be devised. as to what our executive government had already done, as quoted from the official despatches by the gentleman who spoke last, the inference did not apply; for in that emergency, a delay would have been equivalent to a total denial. it had been said, that we owed the french every sentiment of gratitude. it was true; but it was likewise true that we owed them something else than sentiments, for we were indebted to them a very large sum of money. one of the instalments of that debt would be due in a short time, and perhaps it might be safest for congress to advance the sums now wanted for the french refugees, in part of that debt, and leave it to the decision of the french ministry whether they would accept of such a payment or not. he did not wish to press this expedient upon the house, but he begged leave to submit it to their consideration; and as he had not yet been able to resolve in his own mind what line of conduct the house ought to pursue, he requested that the discussion of the question might for a short time be deferred. mr. clark wished that the gentleman who spoke last would be careful of preserving consistency. it was only a few days ago that he had laid before the house a resolution, by which congress were to indemnify all such citizens of the united states as had suffered losses by the british pirates. he supposed that for this, there would be found as little authority in the articles of the constitution, as for relieving the fugitives from cape françois. mr. madison, in explanation, replied, that the two cases were widely different. the vessels of america sailed under our flag, and were under our protection, by the law of nations, which the french sufferers unquestionably were not. as to the resolution he had proposed, it was not then before the house, and hence he could not speak to it with propriety. it was very possible that the house might find it wrong, and reject it. he wished not to be misunderstood, for he was sure that every member in that house felt the warmest sympathy with the situation of the sufferers. he would be very glad to find a proper way for their relief. mr. nicholas said, that he had not been able to discover upon what authority the house were to grant the proposed donation. if the question should that day come to a vote, which he trusted it would not, he had resolved to give his voice in favor of the sufferers: but, when he returned to his constituents, he would honestly tell them that he considered himself as having exceeded his powers, and so cast himself on their mercy. he felt many obstacles to voting away this money without further deliberation. mr. boudinot declared, that he had never been able to discover any difficulty in the matter. by the law of nature, by the law of nations--in a word, by every moral obligation that could influence mankind, we were bound to relieve the citizens of a republic who were at present our allies, and who had formerly been our benefactors. he could not for a moment endure the idea of a hesitation on such a question. when a number of our fellow-creatures had been cast upon our sympathy, in a situation of such unexampled wretchedness, was it possible that gentlemen could make a doubt whether it was our duty to relieve them? it had been said that the house was not, by the constitution, authorized to give away money for such purposes. he was satisfied, that to refuse the assistance requested, would be to act in direct opposition both to the theory and practice of the constitution. in the first place, as to the practice, it had been said that nothing of this kind had ever occurred before under the federal constitution. he was astonished at such an affirmation. did not the indians frequently come down to this city, on embassies respecting the regulating of trade, and other business--and did not the executive, without consulting congress at all, pay their lodgings for weeks, nay, for whole months together? and was not this merely because the indians were unable to pay for themselves? nobody ever questioned the propriety of that act of charity. again; when prisoners of war were taken, there was no clause in the constitution authorizing congress to provide for their subsistence: yet it was well known that they would not be suffered to starve. provision was instantly made for them, before we could tell whether the nation to whom they belonged would pay such expenses, or would not pay them. it was very true that an instalment would soon be due to france, nor did he object to reimbursement in that way, if it could be so obtained. but, in the mean time, relief must be given, for he was convinced that he had still stronger obligations to support the citizens of our allies than either indians or prisoners of war. in the second place, as to the theory of the constitution, he referred gentlemen to the first clause of the eighth section of it. by that clause congress were warranted to provide for exigencies regarding _the general welfare_, and he was sure this case came under that description. mr. fitzsimons thought that it would be expedient to lose as little time as possible in going into the committee. it was hard on the state of maryland to support of itself such an immense number of people. besides, the period for which that state had engaged to furnish them with subsistence was expiring; so that it was absolutely necessary to come to an early decision whether the house would assist them or not. mr. genet had made a discrimination among the sufferers; some of them he had promised to assist, and others, as _aristocrats_, he had disowned altogether. mr. dexter read the clause referred to by mr. boudinot, but could not draw from it any such inference. he was very unwilling to vote against the proposition, and therefore solicited a delay, that he might have leisure to find proper reasons for voting in its favor. mr. giles was averse to precipitation in an affair of such magnitude. the report had been read for a first time to-day; it had then been read for a second time to-day. as if all this had not been sufficient, the house must likewise go into a committee this day. like the gentleman who had just sat down, he felt many doubts as to the legality of such an act of bounty; and he wished, before he gave a vote on either side of the question, to free himself from these doubts. he considered duty to his constituents as a very solemn trust. some personal insinuations had been cast out, as if gentlemen who professed constitutional scruples had wished to embarrass the subject. reflections of this kind could answer no good purpose. gentlemen (said mr. g.) appeal to our humanity. the appeal is out of place. that is not the question; but whether, organized as we are, under the constitution, we have a right to make such a grant? he did not understand why an application was made to congress in particular. it would have been made with greater propriety to the provincial assemblies, as their power over the purses of their constituents was more extensive than that of this house over the revenues of the united states. [the motion for the house resolving itself into a committee immediately was then withdrawn, and the report was committed to a committee of the whole on the state of the union.] monday, january . _commerce of the united states._ the house again resolved itself into a committee of the whole house on the report of the secretary of state on the privileges and restrictions on the commerce of the united states, in foreign countries, when mr. smith (of south carolina) rose and addressed the chair as follows: mr. chairman: among the various duties which are assigned by the constitution to the legislature of the united states, there is, perhaps, none of a more important nature than the regulation of commerce, none more generally interesting to our fellow-citizens, none which more seriously claims our diligent and accurate investigation. it so essentially involves our navigating, agricultural, commercial, and manufacturing interest, that an apology for the prolixity of the observations which i am about to submit to the committee, will scarcely be requisite. in the view which i shall take of the question, disengaging the inquiry from all topics of a political nature, i shall strictly confine myself to those which are commercial, and which alone are, in my judgment, properly connected with the subject. called upon to decide on propositions, merely commercial, and springing from a report, in its nature limited to commercial regulations, it would be as ill-timed, as it would be irregular, to mingle with the discussion considerations of a political nature. i shall, accordingly, reject from the inquiry every idea which has reference to the indians, the algerines, or the western posts. whenever those subjects require our deliberations, i shall not yield to any member in readiness to vindicate the honor of our country, and to concur in such measures as our best interests may demand. this line of procedure will, i trust, be deemed by those gentlemen who follow me, the only proper one, and that the debate will be altogether confined to commercial views; these will of themselves open a field of discussion sufficiently spacious, without the intervention of arguments derived from other sources. it would indeed argue a weakness of ground in the friends of the propositions, and imply a distrust of the merits of their cause, were they compelled to bolster it up with such auxiliaries, and to resort for support to arguments, not resulting from the nature of the subject, but from irrelative and extraneous considerations. the propositions, as well as the report, being predicated upon facts and principles having relation to our commerce and navigation with foreign countries, by those facts and principles, and those alone, ought the propositions to stand or fall. it will not be denied that this country is at present in a very delicate crisis, and one requiring dispassionate reflection, cool and mature deliberation. it will be much to be regretted then, if passion should usurp the place of reason, if superficial, narrow, and prejudiced views should mislead the public councils from the true path of national interest. the report of the secretary of state, on the privileges and restrictions on the commerce of the united states in foreign countries is now before the committee. the tendency of that report (whatever may have been the design of the reporter) appears to be to induce a false estimate of the comparative condition of our commerce with certain foreign nations, and to urge the legislature to adopt a scheme of retaliating, regulations, restrictions, and exclusions. the most striking contrast which the performance evidently aims at, is between great britain and france. for this reason, and as these are the two powers with whom we have the most extensive relations in trade, i shall, by a particular investigation of the subject, endeavor to lay before the committee an accurate and an impartial comparison of the commercial systems of the two countries in reference to the united states, as a test of the solidity of the inferences which are attempted to be established by the report. a fair comparison can only be made with an eye to what may be deemed the permanent system of the countries in question. the proper epoch for it, therefore, will precede the commencement of the pending french revolution. the commercial regulations of france during the period of the revolution have been too fluctuating, too much influenced by momentary impulses, and, as far as they have looked towards this country with a favorable eye, too much manifesting an object of the moment, which cannot be mistaken to consider them as a part of a system. but though the comparison will be made with principal reference to the condition of our trade with france and great britain, antecedent to the existing revolution, the regulations of the subsequent period will perhaps not be passed over altogether unnoticed. the table which i have before me comprises the principal features of the subject within a short compass. it is the work of a gentleman of considerable commercial knowledge, and i believe may be relied on for its correctness. an attentive reference to it will, with some supplementary remarks, convey a just conception of the object; a view to conciseness and simplicity has excluded from it all articles (the production and manufactures of the united states) which are not of considerable importance. accustomed as our ears have been to a constant panegyric on the generous policy of france towards this country in commercial relations, and to as constant a philippic on the unfriendly, illiberal, and persecuting policy of great britain towards us in the same relations, we naturally expect to find in a table which exhibits their respective systems, numerous discriminations in that of france in our favor, and many valuable privileges granted to us, which are refused to other foreign countries; in that of great britain frequent discriminations to our prejudice, and a variety of privileges refused to us which are granted to other foreign nations. but an inspection of the table will satisfy every candid mind, that the reverse of what has been supposed is truly the case--that neither in france nor the french west indies, is there more than one solitary and important distinction in our favor, (i mean the article of fish oil,) either with regard to our exports thither, our imports from thence, or our shipping; that both in great britain and the british west indies, there are several material distinctions in our favor, with regard both to our exports thither and to our imports from thence, and, as it respects great britain, with regard also to our shipping; that in the market of great britain, a preference is secured to six of our most valuable staples, by considerably higher duties on the rival articles of other foreign countries; that our navigation thither is favored by our ships, when carrying our own productions, being put upon as good a footing as their own ships, and by the exemption of several of our productions, when carried in our ships, from duties which are paid on the like articles of other foreign countries carried in the ships of those countries; and that several of our productions may be carried from the united states to the british west indies, while the like productions cannot be carried thither from any other foreign country; and that several of the productions of those countries may be brought from thence to the united states, which cannot be carried from thence to any other foreign country. tuesday, january . _commerce of the united states._ the house again resolved itself into a committee of the whole house on the report of the secretary of state on the privileges and restrictions on the commerce of the united states in foreign countries; when mr. madison rose in reply to mr. smith, of south carolina. mr. m. began by observing that he had expected, from what was intimated yesterday, the sequel of what was then said against the resolutions before the committee; but, as there was a silence in that quarter, and no other member has risen on either side of the question, he himself would request the attention of the committee. it had been much pressed that, in the discussion of this subject, it should be viewed in its commercial relations only. he was perfectly willing to meet every objection that could be urged on that ground; but, as he conceived it impossible to do full justice to the interests of the united states without taking some collateral considerations into view, he should be obliged, in the course of his remarks, to point at the political disposition and conduct of some of the nations of europe towards this country. the propositions immediately before the committee turned on the question, whether any thing ought to be done at this time, in the way of commercial regulations, towards vindicating and advancing our national interests. perhaps it might be made a question with some, whether, in any case, legislative regulations of commerce were consistent with its nature and prosperity. he professed himself to be a friend to the theory which gives to industry a free course, under the impulse of individual interest and the guidance of individual sagacity. he was persuaded that it would be happy for all nations, if the barriers erected by prejudice, by avarice, and by despotism, were broken down, and a free intercourse established among them. yet to this, as to all other general rules, there might be exceptions; and the rule itself required what did not exist--that it should be general. to illustrate this observation, he referred to the navigation act of great britain, which, not being counterbalanced by any similar acts on the part of rival nations, had secured to great britain no less than eleven-twelfths of the shipping and seamen employed in her trade. it is stated that, in , when the british act passed, the foreign tonnage was to the british, as one to four; in , less than one to six; in , as one to nineteen; in , as one to twelve; in , nearly the same. at the commencement of the period, the tonnage was but , tons; at the end of it, , , . as another illustration, he mentioned the case where two countries happened to be in such a relation to each other, that the one, by discouraging the manufactures of the other, might not only invigorate its own, but transplant the manufacturers themselves. here the gain would be a clear one, and the effect evidently consistent with the principle of the theory. to allow trade to regulate itself is not, therefore, to be admitted as a maxim universally sound. our own experience has taught us that, in certain cases, it is the same thing with allowing one nation to regulate it for another. were the united states, in fact, in commercial intercourse with one nation only, and to oppose no restrictions whatever to a system of foreign restrictions, they would, of necessity, be deprived of all share in the carriage, although their vessels might be able to do it cheapest, as well as of the only resources for defence on that side where they must always be most exposed to attack. a small burden only in foreign ports on american vessels, and a perfect equality of foreign vessels with our own in our own ports, would gradually banish the latter altogether. the subject, as had been remarked on a former occasion, was not a novel one; it was coeval with our political birth, and has at all times exercised the thoughts of reflecting citizens. as early as the year succeeding the peace, the effect of the foreign policy, which began to be felt in our trade and navigation, excited universal attention and inquietude. the first effort thought of was an application of congress to the states for a grant of power, for a limited time, to regulate our foreign commerce, with a view to control the influence of unfavorable regulations in some cases, and to conciliate an extension of favorable ones in others. from some circumstances then incident to our situation, and particularly from a radical vice in the then political system of the united states, the experiment did not take effect. the states next endeavored to effect their purpose by separate but concurrent regulations. massachusetts opened a correspondence with virginia and other states, in order to bring about the plan. here, again, the effort was abortive. out of this experience grew the measures which terminated in the establishment of a government competent to the regulation of our commercial interests and the vindication of our commercial rights. as these were the first objects of the people in the steps taken for establishing the present government, they were universally expected to be among the first fruits of its operation. in this expectation, the public were disappointed. an attempt was made in different forms, and received the repeated sanction of this branch of the legislature, but they expired in the senate--not, indeed, as was alleged, from a dislike to the attempt altogether, but the modifications given to it. it has not appeared, however, that it was ever renewed in a different form in that house, and for some time it has been allowed to sleep in both. if the reasons which originally prevailed against measures such as those now proposed had weight in them, they can no longer furnish a pretext for opposition. when the subject was discussed in the first congress, at new york, it was said that we ought to try the effect of a generous policy towards great britain; that we ought to give time for negotiating a treaty of commerce; that we ought to await the close of negotiations for explaining and executing the treaty of peace. we have now waited a term of more than four years. the treaty of peace remains unexecuted on her part, though all pretext for delay has been removed by the steps taken on ours; no treaty of commerce is either in train or in prospect; instead of relaxations in former articles complained of, we suffer new and aggravated violations of our rights. in the view which he took of the subject, he called the attention of the committee particularly to the subject of navigation, of manufactures, and of the discrimination proposed in the motion between some nations and others. on the subject of navigation, he observed that we were prohibited by the british laws from carrying to great britain the produce of other countries from their ports, or our own produce from the ports of other countries, or the produce of other countries from our own ports, or to send our own produce from our own or other ports in the vessels of other countries. this last restriction was, he observed, felt by the united states at the present moment. it was, indeed, the practice of great britain, sometimes to relax her navigation act so far, in time of war, as to permit to neutral vessels a circuitous carriage; but, as yet, the act was in full force against the use of them for transporting the produce of the united states. on the other hand, the laws of the united states allowed great britain to bring into their ports any thing she might please, from her own or from other ports, and in her own or in other vessels. in the trade between the united states and the british west indies, the vessels of the former were under an absolute prohibition, whilst british vessels in that trade enjoyed all the privileges granted to others, even the most favored nations, in their trade with us. the inequality in this case was the more striking, as it was evident that the west indies were dependent on the united states for the supplies essential to them, and that the circumstances which secured to the united states this advantage, enabled their vessels to transport the supplies on far better terms than could be done by british vessels. it might be regarded (he observed) as a general rule, that, where one nation consumed the necessaries of life produced by another, the consuming nation was dependent on the producing one. on the other hand, where the consumption consisted of superfluities, the producing nation was dependent on the consuming one. the united states were in the fortunate situation of enjoying both these advantages over great britain. they supply a part of her dominions with the necessaries of life; they consume superfluities which give bread to her people in another part. great britain, therefore, is under a double dependence on the commerce of the united states. she depends on them for what she herself consumes; she depends on them for what they consume. in proportion as a nation manufactures luxuries must be its disadvantages in contests of every sort with its customers. the reason is obvious. what is a luxury to the consumer is a necessary to the manufacturer. by changing a fashion or disappointing a fancy only, bread may be taken from the mouths of thousands whose industry is devoted to the gratification of artificial wants. he mentioned the case of a petition from a great body of buckle makers, presented a few years ago to the prince of wales, complaining of the use of strings instead of buckles in the shoes, and supplicating his royal highness, as giving the law to fashions, to save them from want and misery by discontinuing the new one. it was not (he observed) the prince who petitioned the manufacturers to continue to make the buckles, but the manufacturers who petitioned their customer to buy them. the relation was similar between the american customers and the british manufacturers; and if a law were to pass for putting a stop to the use of their superfluities, or a stop were otherwise to be put to it, it would quickly be seen from which the distress and supplications would flow. suppose that great britain received from us alone the whole of the necessaries she consumes, and that our market alone took off the luxuries with which she paid for them: here the dependence would be complete, and we might impose whatever terms we please on the exchange. this, to be sure, is not absolutely the case; but, in proportion as it is the case, her dependence is on us. the west indies, however, are an example of complete dependence. they cannot subsist without our food. they cannot flourish without our lumber and our use of their rum. on the other hand, we depend on them for not a single necessary, and can supply ourselves with their luxuries from other sources. sugar is the only article about which there was ever a question; and he was authorized to say that there was not, at the most, one-sixth of our consumption supplied from the british islands. in time of war or famine the dependence of the west indies is felt in all its energy. it is sometimes such as to appeal to our humanity as well as our interest for relief. at this moment the governor of jamaica is making proclamation of their distresses. if ever, therefore, there was a case where one country could dictate to another the regulations of trade between them, it is the case of the united states and the british west indies. and yet the gentleman from south carolina (mr. smith) had considered it as a favor that we were allowed to send our provisions in british bottoms, and in these only, to the west indies. wednesday, january . _commerce of the united states._ a proposition being made to go into a committee of the whole on mr. madison's resolutions, the house then went into committee. mr. forrest, after a long pause, observed, that, as no other person appeared disposed to rise on the occasion, although he felt himself unequal to doing that justice to the subject which many others were, yet he considered it his duty to offer a few remarks which had occurred to him in the course of the debate. in all our discussions of commercial affairs, the principal point to be kept in view was the promotion of the essential and permanent interests of our country, keeping in mind this maxim, (as true in respect to nations as individuals,) that there is no friendship in trade. he then entered into a consideration of our commercial connection with great britain, and observed that we should avoid letting our former prejudices, or those arising from recent transactions, influence our judgments. we should not regard the favoring of the french or british nation, but study to do that which would tend to the promotion of our own commerce and the interest of our own navigation. in this pursuit, we must keep in view our relative situation with european nations, particularly those of france and great britain, and more particularly the latter, with whom the proposed resolutions contemplate a change. of all possible times, (said he,) i believe this the most improper to try the experiment. if the british government have been instrumental in letting the algerines loose upon us; if their privateers commit acts of piracy upon our neutral flag, let it at least, in the first instance, be made matter of negotiation. neutral nations must suffer some inconvenience; and it will be much better policy to come forward at once and say we are at war. we will not submit to vexatious insults, when they are too much to suffer, rather than make this commercial warfare, by which it is impossible, in the course of human events, but that we must be much the greatest sufferers; and how humiliating would it be, after trial, even to propose to make it a drawn battle! let us examine the subject. of the whole fair trade of great britain, taking their imports and exports into view, their trade with the united states will be found to be one-sixth, or thereabouts. take the imports and exports of the united states, and you will find that full one-half the value of our whole trade is with great britain and her dependencies. who will suffer most? she, by the interruption of one-sixth, with the means of getting most of the articles we supply, on as good terms, from other nations, with great internal sources of revenue, and a people used to bear any taxes asked of them; or we, with an interruption of one-half our trade and commerce, not so well off with respect to internal resources, and the complaints of our citizens, not accustomed to heavy taxation? let those who rely upon the effect it will have on the english manufacturers and artisans, look back to and , and recollect the effect it then had. but there is one circumstance that should have weight with every mind. it will be found that three-fourths of all the impost revenue of this country are derived from our commerce with the british. shall we hazard an entire loss of this revenue? and if lost or greatly interrupted, from whence shall we supply its deficiency, without, at least, in their minds, oppressing the people of this country? i am not a stockholder or a bankholder. i am too poor to be either, and therefore can have no separate interest in view, and, where i am known, i shall not be charged with partiality to great britain; but i hope i am free from such unwarrantable prejudices as to lead me into measures to the injury of my country. i lay it down as a principle not to be controverted, that our intercourse with great britain, in a commercial point, (i mean, putting the mode of carriage out of account, and confining it to the importation and exportation, and restrictions and bounties thereon,) is as favorable as we can expect, and, taken in the aggregate, full as favorable as with france, their navigation act excepted. with respect to navigation, i have long thought it ought not to be submitted to; but are we to expect, at a moment like this, acting (as they will certainly believe we shall) under the impulse of resentment, they will waive an atom of their navigation act to the result of our resolutions? it is vain. let us not hazard that which is certain, which the safeguard of experience has proved, for that we know not of. it has been mentioned as a grievance that our produce is sent to france, holland, spain, portugal, &c., and that our imports are, in a great degree, confined to great britain. our merchants must pay their debts, and surely it is for their interest to sell their articles for the highest price they will bring, and purchase where they can obtain cheapest. our produce is sent to those countries to pay our debts in great britain. there has been nothing to lead me to a judgment how the blanks are to be filled. if, with such high duties as to prohibit the articles, our chief source of revenue will be wiped off, and the consequence may, nay, must be, direct taxation. if low, it will only exhibit, without gratifying, a resentment, and the consumers of these articles, the yeomanry of this country, will have to pay the tax. if it is said that it is intended to encourage our own factories, let us select those which we can manufacture, and lay prohibitory duties on the foreign articles. mr. f. reprobated the idea of suffering partial or merely political motives to influence in the discussion of the subject. commercial subjects ought to be considered in an independent point of view. he hoped, therefore, that the committee would endeavor to divest themselves of every incidental impression, originating in impulses from particular events, and contemplate the question simply on its own merits. mr. fitzsimons declared that, in the course of this discussion, he had not heard one single argument advanced which, admitting the premises to be true, could persuade him to give his consent to the first of the resolutions. it was possible that he might agree to some of those that followed. he was perfectly convinced that a judicious system of regulations would be of infinite advantage to the maritime interest of america. he was of opinion that the first resolution was by far too indefinite. the substance of the whole arguments advanced on both sides tended only to establish a fact, which was already perfectly well known, that the governments of europe act, in regard to the commerce of the united states, just as they think proper. the lesson was a very good one, and he trusted that, with a proper attention to temporary circumstances, this country would improve by it. mr. madison regarded the objection of the gentleman as entirely of a new kind. he had refused his consent to the first of the resolutions, because it was indefinite. but the propositions laid before the house a few days ago with respect to the algerines were fully as indefinite, and yet the gentleman who spoke last had recommended them. the order of procedings in the present question is perfectly candid and regular, consonant to the practice of the house, and the practice of the gentleman himself. mr. ames wished, that gentlemen, instead of indefinite declamation, would lay their finger on each particular wrong that britain had done to us. he did not know of any particular advantage that we had derived in our commerce with france. he wished to discountenance a spirit of revenge, and to ascertain on what side the benefits of our commerce lay, and wherein they consisted. he did not like unfair comparisons, mr. nicholas said, that he would not, at this time of day, attempt to detain the house any further than by just observing that the practice of _comparisons_ had originated among the gentlemen who opposed the resolutions. at this stage, the committee rose, and had leave to sit again. thursday, january . _commerce of the united states._ the house again resolved itself into a committee of the whole house on the report of the secretary of state on the privileges and restrictions on the commerce of the united states in foreign countries, when mr. nicholas rose and spoke as follows: mr. chairman: i feel a great embarrassment in speaking on this subject, from a distrust of my ability to treat properly its acknowledged importance, and from the apparent expectation of the audience. i feel too, as the member from maryland who spoke yesterday did, from the imputation of motives, well knowing that the representatives of my country are industriously reported to be enemies of the government, and promoters of anarchy, and that the present measure is imputed to these principles. it is somewhat remarkable, that farther north we are charged with selfishness, and want of attachment to the general welfare, for a supposed opposition to measures of the import of the present. i mention this contradictory inference, to show that the shameful designs charged upon us, are not proved by the fact, and to place the guilt where it only exists, in the malignity of the accuser. it is a commonly received opinion, that trade should be intrusted to the direction of those immediately interested in it, and that the actual course of it is the best which it could take; this principle is by no means a safe one, and, as applied to the trade of america, is extremely fallacious. it can never be just, where the beginning and growth of a commerce have not been free from all possible constraint, as to its direction; as that can never be called a business of election which has been created under foreign influence. the manner in which america was first peopled, and the nurture she received from great britain, afford the most striking contrast to the requisite before mentioned. the first inhabitants of america were educated in great britain, and brought with them all the wants of their own country, to be gratified chiefly by the productions of that country. aided by british capital, in the settlement of the wilderness, and depending on the same means for the conveyance of its produce to a place of consumption, it was inevitable, that the demand for british commodities should keep pace with the improvement of the country. in the commencement of american population and its early stages, there does not appear to have been a chance of comparing the advantages of commercial connection with different countries, and it will be found that in its progress, it was still more restrained. in the last years of the dependence of america on great britain, the principal part of america was occupied by large trading companies, composed of people in great britain, and conducted by factors, who sunk large sums in the hands of the farmers, to attach them to their respective stores, by which means competition was precluded, and a dependence on the supplies of those stores completely established. since the revolution, the business has been conducted by persons in the habit of dependence on great britain, and who had no other capital than the manufactures of that country furnished on credit. the business is still almost wholly conducted by the same means. in no stage of its growth then, does there appear to have been a power in the consumer to have compared the productions of great britain with those of any other country, as to their quality or price, and therefore there is no propriety in calling the course of trade, the course of its choice. the subject before the committee naturally divides itself into navigation and manufactures, in speaking of which, i shall offer some other considerations, to show that the same effects are by no means to be expected from the greatest commercial wisdom in individuals, which are in the power of the general concert of the community; the one having in view profit on each separate transaction, the other, promoting an advantageous result to the whole commerce of the country. in considering the importance of navigation to all countries, but especially to such as have so extensive a production of bulky articles as america, i think i shall show that the last observation is accurately right, and that the interest of the whole community, not those only who are the carriers, but those also who furnish the object of carriage, positively demands a domestic marine, equal to its whole business; and that, even if it is to exist under rates higher than those of foreign navigation, it is to be preferred. in circumstances of tolerable equality, that can never however entirely be the case; for, in the carriage of the produce of one country, by the shipping of another, to any other place than the country to which the shipping belongs, there is considerably more labor employed than would have been by domestic shipping, as the return to their own country is to be included. on this ground, it may be confidently asserted, that where the materials of navigation are equally attainable, they will always be more advantageously employed by the country for whose use they are intended; and that if, under such circumstances, another country is employed as the carrier, it must be under the influence of some other cause than interest, as it respects that particular business. a dependence on the shipping of another country tends to establish a place of deposit in that country of those exports which are for the use of others, if it is at a convenient distance from them. the superintendence of property makes short voyages desirable for the owner, and the connection that soon takes place between the money capital of a country and its shipping interests, greatly strengthens the vortex. the attainment of wealth beyond the demands of navigation, leads to an interest in the cargo itself, and then the agency in selling to the consumer becomes important. it is apparent that, as the final sale depends on the wants of the purchaser, all intermediate expenses of care and agency must be taken from the price to which the maker would be entitled. our own commerce has involved this loss, in a remarkable degree, and it has gone to an enormous extent, from a necessity of submitting to the perfidy of agents, arising from a dependence established by means of the so much boasted credit. that there is this tendency in the employment of foreign shipping, is not only proved by the commercial importance of holland, which became thus, from her naval resources, the storehouse of europe, without furnishing any thing from her own productions, but also from the varied experience of america. before the revolution, every thing for european consumption was carried to great britain, but, since america has possessed shipping of her own, and in the northern states, there has been an accession of capital, the export to england is reduced one-half. it is true, indeed, that there is still nearly one-half of what she receives, that is re-exported, but it will be found that she still retains a proportioned share of those influences which formerly carried the whole. great britain, under all the discouragements of our laws, which, we are told by the mercantile members of the committee, amount to a prohibition where they have any rivals, did, until the european war, possess one-third of the foreign tonnage employed in america. this has been supported by the dependence into which the southern states were placed by credit, and here, as in every other step of the connection, this engine extorts advantages from us, beyond the compensation which is always secured in the first advance. if there wanted other proof of the british interest in the american navigation being supported in direct opposition to our interests, it may be found in the comparative state of the tonnage employed, where it appears that, after the protecting duties once had their effect, the additional tonnage, to a considerable amount, has been entirely american, and that the british tonnage has remained very nearly stationary, and in proportion to their undue influence. in time of war, in addition to the inconveniences before stated, which are enhanced by throwing the trade from its accustomed channel, there are great and important losses brought on a country by this kind of dependence. if your carriers are parties to the war, you are subjected to the war freight and war insurance on your cargo, and you are cut off from all the markets to which they are hostile; and, indeed, from our experience in the present war, i may say you are cut off from the market of your carriers themselves, as it would have been impossible for british vessels to have escaped in our seas last summer. to what extent this loss goes may be seen from a calculation in the secretary of state's report on the fisheries, making the proportion of war to that of peace in the one hundred years, as forty-two to one hundred; and on that calculation there can be no hesitation in determining that the interest of the farmers requires that this foreign dependence should end here. but the european war, by making a temporary exclusion of british shipping, has already brought on us the greatest mischief of such a regulation: and, by the encouragement it has afforded to our shipping, almost completed the remedy; so that we have reason to consider this as a fortunate period. but, it is not merely the advancement of our marine that is contemplated by the present resolutions; the security of that which we have is also dependent on them. the danger from the algerines has been estimated in this house at five per cent. on the vessel and cargo, but the whole encouragement to our own shipping in our existing laws consists in the one-tenth additional duty on goods imported in foreign vessels. whenever there shall be a european peace, which cannot be far distant, the whole difference between the two sums will be a direct encouragement on british ships, and will probably be equal to two freights. do gentlemen rely on the precarious prospect of building frigates, and the more precarious service to be rendered by them when built, so much as to neglect any other regulations for the safety of our shipping when they are so much in their power? having shown that the actual state of our commerce is by no means the most beneficial, as far as navigation is concerned, i will proceed to consider the benefits derived from the consumption of those european manufactures which form the principal part of the stores of america. and here it may safely be said, that national policy by no means justifies the almost exclusive preference given to those of great britain. it is not always true that the commodity which is bought for least money is the best bargain, for the means of payment form an important consideration in all traffic, and accommodations in it may more than counterbalance an inequality of price. if one man will receive an article in exchange which you can sell to no other, it will certainly be a saving to deal with him at a high advance on his property. if there are countries which would become great consumers of american produce, on the terms of reciprocal consumption, and we find a difficulty, as is often the case, in vending that produce, is it not of great national importance to excite those acts which are to become the foundation of the connection, even if, in the first instance, it is to be attended with inconvenience and loss? france may be made a connection of this sort. she is at this time almost, if not quite, on a footing with great britain in the consumption of american products, and every hand which shall receive employment from us will add to her wants. we are told that it is of no less importance to us to find a country which can supply us advantageously than one which will consume our productions; and that, as commerce is no longer carried on by barter, it is no less beneficial to sell in one country and buy in another, than if we could complete the exchange in the same country. this might be true, if your production was limited, and the demand for it certain; but, with a greatly improving agriculture, and some risk in our markets, the object is important. great britain being the factory of those things which would make her most dependent on the agricultural interest, and the national wealth being probably at the greatest height, there is no expectation that her consumption will increase. on the other hand, as labor is now to receive its direction in france to the manufacturing arts, so far as concerns america, you will take from the agricultural strength a large class of people, and by that means create a dependence on you, at least to the amount of their own consumption, and the wealth you will diffuse will give ability to thousands who are now too poor to bid for your commodities. nor is it probable that you will purchase this important benefit on very disadvantageous terms; for it is agreed on all hands that many important arts are well understood there, and that labor, which forms the principal part of the cost of most articles, is considerably cheaper in france than in england. another very important operation of a discrimination in favor of france will be that, by encouraging liberal industry, you may put an end to some practices which, in the existing state of consumption, greatly depreciate our commodities. i mean the public provision made in granaries, and the supply from them in times of scarcity, which destroys the competition that raises every thing to its just value. different consequences have been foretold as likely to result from those measures, to which i shall give a short examination. we are told that the preference long since given by our laws has been equal to a prohibition of british vessels, and that, to the extent to which it has gone, the best effects have been produced. to secure this operation from a recent attack, and at the same time to extend it to some branches of trade, to which its principles would equally extend, is the object of the marine resolutions. we have no reason to apprehend bad consequences from an action which has hitherto had good consequences. as to the increased duties on manufactures, i think the prospect in no way threatening; for, if there should be found no country to supply our wants on better terms, the diminution of consumption will be only in proportion to the duty. this can be by no means alarming, considered as the worst consequence of the measure to men with whom the impost is the favorite mode of collecting the revenue, at a time when the public wants are equal to any possible produce. if there shall be found a competitor with great britain for our consumption, the great object will be attained, as it must be accompanied by a corresponding consumption of american productions. but we are told that there will be a conflict of commercial regulations between this country and great britain, and that the consequence will be, the loss of the market she affords us. the probable consequences of such a conflict will best determine whether it is to be expected, as it will commence, on her part as well as ours, with a view to consequences. the danger which she can alone apprehend is the loss of the market for her manufactures; and to obviate this, it would be absurd to widen the breach between us, as that would tend, in a direct proportion, to the establishment of unfriendly habits and manufactures, either here or in other countries, which would rival her own. if, however, the ultimate advantage would justify such measures, the immediate distress of her people would forbid it. the american trade must be the means of distributing bread to several hundred thousand persons, whose occupations would be wholly ended with the trade, and the government is by no means in a situation to bear their discontent. their navigation and manufactures draw many important ingredients from america which would be lost to them. the creditors of the people of america, to an immense amount, would be deprived of the remittances which depend on a friendly intercourse. on the whole, it would add to the disorders of the government among those who, perhaps, have heretofore contributed to its support, without gratifying any thing but an arrogant resentment. but we are told that our own citizens would be equal sufferers, and are more to be injured by being stopped in a career of rapid improvement. it will be hard to anticipate any real misfortune to america in such a contest, unless the temporary loss of indulgencies, which are by no means necessary, can be so called. the consumption of great britain is, according to the most friendly calculation, not more than one-third of our purchases from her, and, therefore, the national wealth, independent of the gratification of our appetites, will receive an immense addition, and a vast fund will be procured to make lasting and valuable improvements, which would be degraded by comparison with the gewgaws of a day. it is to be remarked that the diminution of our exports would be divided among large classes of people, and in all cases forms a deduction from the annual income, rather than a total loss. this will result from the various objects of american industry and the division of the markets of its produce. this forms an important difference between america and great britain, in an estimate of the effects of a rupture between the two countries. in my opinion, the habits of the southern states are such as to require the control which is said to be the consequence of these measures. under the facility offered by the modes of trade before spoken of, and the credit which is said to be so beneficial, they have not only involved themselves in debt, but have contracted habits which, with the power of gratification, must always keep them so. we did hope that the administration of justice would have corrected the evil, but we now find that it cannot be corrected but by entire changes. it is founded in the policy of the merchant himself, and this circumstance is enough to present to the minds of the committee a long train of dependent mischiefs. it is a fact, supported by the best evidence, that our merchants who get their goods from the manufacturer pay as much for them as the shopkeeper who buys at baltimore or philadelphia. this is one of the consequences of the want of credit which always will follow a reliance on collection from farmers; and there can be no doubt that the merchant is indemnified for his disgrace as well as his advance. the result of the whole train of indulgence is, that our goods are bought at an advance from a half to one-fourth of what they could be afforded for in cash sales. nor does the mischief stop here. it brings a subjection which materially affects the sale of our produce. i do believe, myself, that the war with great britain did not bring half the mischief on us that their credit has; and i very much suspect a credit for consumption will always be found equally mischievous. it by no means resembles money loans, as is insinuated by the gentleman from south carolina, by freeing a man's own resources for any other use. it is certain that there is no other safe regulation of a farmer's expenses than his income; and experience every day proves that, when so regulated, they always fall short of the income, and that, when they depend on credit, they always exceed it, and thereby subject future revenue. lessening the importation of foreign manufactures will increase our household fabrics, which experience has proved to be highly profitable, as the labor is done by a part of the community of little power in any other application. regular efforts in this way have been, in my country, certainly productive of independence. mr. goodhue.--mr. chairman: the propositions now before us having been considered by several gentlemen, who have already spoken, and who have given such a particular detail of calculations, i shall confine myself to some general observations on the subject. the gentleman from maryland has made an observation which struck me very forcibly as applied to the subject before us, because it is a maxim to which all mankind have assented, and upon which all mankind continually practise--it was this: "there is no friendship in trade;" and it maybe added, as a necessary consequence, there ought to be no hatred in trade. by following a path founded upon so obvious a maxim as the foregoing, we may be sure of a right guide, but if we deviate from it, we are in danger of being led into unforeseen error and mischief. it is unquestionably our duty to attend to the navigation and commerce of our country, and give it every proper encouragement which time and circumstances admit; this has ever been my wish and my conduct. this object, so important and desirable, must be effected by fixed principles and regulations, such as giving our vessels a decided preference in our own ports above the ships of every other nation whatever, by paying less tonnage and other duties; by suffering no foreign ships to bring into the united states the productions of any other country than the one to which they belong; and by prohibiting foreign ships from coming to the united states from those places where our own ships are prohibited. these are the fixed principles and regulations by one or all of which our navigation and commerce can only be promoted, and must never be deviated from, when adopted in favor of any one nation whatever--unless it be in return for some special advantage granted to us by any particular nation as an equivalent. hitherto, our government has proceeded to distinguish foreign ships, only by making them pay greater tonnage and duties than our own. if circumstances required it, and the time is judged a seasonable one, i shall be willing to proceed further. let us examine what advantages we enjoy in consequence of any commercial treaties we have already formed, for the propositions before us are proposed to affect only those nations with whom we have no treaties. we have commercial treaties with prussia, sweden, france, and holland, and in the dominions of neither of those powers have our ships or the produce of this country (except in the single article of our oil in france) been admitted on any more favorable terms than the ships or produce of any other nation; and for this obvious reason, because our treaties only ensure the advantages they may grant to the most favored nation; and, being circumstanced in such a manner as not judging it for their interest to distinguish any one by its favors, we are left only in the enjoyment of a trade with them on the terms common to all other nations. this being the case, i would not give one farthing to have like treaties formed with every other nation, for they have not been, and never can be, of any service to us; if we expect to derive any advantage from commercial treaties, we must stipulate for some certain good, for some other good which we may grant them in return. mr. clark differed from many members who had spoken before him, in the view they took of the subject; he conceived it ought to be considered in a political light. we had many wrongs to complain of, and we should endeavor to obtain redress. the english have violated our treaty, just after it was ratified, by taking away our negroes, and since by holding our posts; they have also set the savages on our backs, and have not they let loose the algerines upon us? shall we sit still and bear it? how can we help it? it is asked. they will retaliate, we are told. how retaliate? will they refuse to sell us their manufactures? he remembered that, even in old times, a non-importation agreement made them repeal their stamp act. we have surely as well now as we had then a right not to buy their goods; we don't want to cram our provisions down their throats, or to force them to buy our lumber. during the non-importation agreement, we did not perish with cold; we found, even then, that among ourselves we could make wherewith to clothe ourselves; we are surely as able to do it now. we then gained our point; we should now be much more powerful with the same weapon: many of her manufacturers are already starving for want of employment. we should add greatly to their distress, and soon bring the government to their senses, and they will be glad to enter into a commercial treaty with us. the balance of trade with great britain is much against us; and by carrying to portugal and spain what we send to them, we should receive cash in return. france will not always be in a storm, and a supply of the manufactured articles we want may soon be received from that quarter. he did not see to what purpose calculations three hours long had been brought forward. it was very well for merchants to calculate in their counting houses; but he conceived the legislature should determine the question upon political considerations. he concluded by remarking, that he believed by this time the committee must pretty clearly see that he was in favor of the resolutions. mr. parker considered the resolutions on the table as indefinite and unintelligible. if revenue is the object, we should remember the remark of _dr. swift_, that in the arithmetic of taxation, two and two do not always make four, but sometimes only _one_. he thought there was a jarring in the third resolution, which contradicted the first. the leading clause of the first resolution, which has occasioned so long a debate, is in these words: "that the interest of the united states would be promoted by further restrictions and higher duties, in certain cases, on the manufactures and navigation of foreign nations employed in the commerce of the united states, than those now imposed." the third resolution which mr. p. referred to, is in these words: "that the duty on vessels belonging to the nations having commercial treaties with the united states, ought to be reduced to ---- per ton." the resolutions meant either too much, or nothing. he would move to amend the first resolution, but that he hoped it would be altogether cast aside. mr. s. smith (of maryland) rose and apologized to the committee for presuming to intrude upon them a second time by the delivery of his sentiments. he said that a personal attack had been made yesterday upon him in that house. it had met him out of doors, and had gone into the world. after he had done speaking yesterday, a member had risen, and held forth as a fundamental observation, that "gentlemen possessing capitals of their own were in favor of the propositions; but that dealers upon credit were against them." when this remark was made, as he had but just sat down from delivering his negative to the resolutions, he could not help thinking himself aimed at as one of those dealers upon credit. [here the member referred to rose, and solemnly declared that a personal allusion to mr. smith had never entered his mind.] mr. s. went on to observe, that the whole assertion was erroneous. the merchants of america are men of liberal sentiments--more so, he believed, than merchants of any other part of the world. they are not to be biased by the petty motives of interest, in prejudice to the public interest of their country. the gentleman whom he referred to had spoke of an alarming british influence in some of the commercial cities of america. he had alleged that merchants, by their connection with britain, would be under its influence; but there was no such thing. in this country, merchants studied the constitution, and were attached to it. in other countries, they minded only profit. as a reflection had been thrown on merchants who dealt upon credit, he should take leave to observe that credit was a very good thing. as to himself, he had before the war began, acquired, by his industry, as much property as placed him beyond the necessity of credit. by the war he was reduced to nothing. after the peace, he again began as he set out at first. by the same industry and the same talents, he had once more acquired independence. by the british buccaneers, he had lost as much, since the present war began, as the gentleman to whom he rose in reply, would think a tolerable fortune for dividing among his sons; yet he could still spare time from his business for the service of his country. the question was then taken to postpone the subject to the first monday in march next; and it was resolved in the affirmative--yeas , nays , as follows: yeas.--theodorus bailey, abraham baldwin, thomas blount, thomas p. carnes, gabriel christie, abraham clark, isaac coles, henry dearborn, george dent, william findlay, william b. giles, james gillespie, nicholas gilman, christopher greenup, andrew gregg, william b. grove, george hancock, carter b. harrison, john heath, daniel heister, john hunter, william irvine, matthew locke, william lyman, nathaniel macon, james madison, alexander mebane, william montgomery, andrew moore, peter muhlenberg, joseph neville, anthony new, john nicholas, nathaniel niles, alexander d. orr, josiah parker, john patton, andrew pickens, francis preston, robert rutherford, thomas scott, john s. sherburne, john smilie, israel smith, thomas spring, thomas tredwell, philip van cortlandt, abraham venable, francis walker, benjamin williams, and joseph winston. nays.--fisher ames, james armstrong, john beatty, elias boudinot, shearjashub bourne, benjamin bourne, lambert cadwalader, thomas claiborne, david cobb, peleg coffin, joshua coit, jonathan dayton, samuel dexter, thomas fitzsimons, uriah forrest, dwight foster, ezekiel gilbert, henry glenn, benjamin goodhue, james gordon, samuel griffin, thomas hartley, james hillhouse, william hindman, samuel holten, john wilkes kittera, amasa learned, richard bland lee, francis malbone, joseph mcdowell, william vans murray, jeremiah smith, samuel smith, william smith, zephaniah swift, silas talbot, george thatcher, uriah tracy, jonathan trumbull, john e. van allen, peter van gaasbeck, peleg wadsworth, jeremiah wadsworth, artemas ward, john watts, paine wingate, and richard winn. monday, january . _algerine affairs._ the committee of ways and means, appointed, pursuant to the resolutions of the house, on the communications from the president of the united states relative to algiers, brought in a report, which was twice read, and referred to the committee of the whole house on the state of the union. _ordered_, that it be printed for the use of the members. the report states that the naval force for the protection of the trade of the united states, shall consist of four ships of forty-four guns each, and pounders, and two of twenty guns each. the aggregate sum wanted for this purpose is estimated at six hundred thousand dollars; to raise which, one per cent. additional duty is proposed to be laid on imported goods now paying seven and one-half per cent.; five per cent. additional on stone, marble, &c.; and on all stone and earthenware, three cents additional; on salt, per bushel, six cents additional, per ton, on all vessels of the united states employed in foreign trade; and twenty-five cents additional, per ton, on all other vessels. on motion of mr. fitzsimons, an addition was made to the committee of ways and means; so that it now consists of a member from every state, who are to make another report respecting the fortifying the ports and harbors of the united states. _ordered_, that mr. gilman, mr. watts, mr. orr, mr. patton, mr. baldwin, and mr. israel smith, be added to the committee appointed to report to this house the naval force adequate to the protection of the commerce of the united states against the algerine corsairs, together with an estimate of the expense, and the ways and means of defraying the same. tuesday, january . _french refugees._ a petition of peter gauvain and louis dubourg, in behalf of the french refugees of cape françois, now at baltimore, was presented to the house and read, praying that congress will speedily decide on the memorial of the committee appointed by the legislature of maryland, to draw for, and distribute, the moneys granted by that state for the relief of the french emigrants from the island of st. domingo. mr. murray moved that it should be referred to the committee of the whole on the state of the union, along with the report of the select committee upon it. he thought it would be an act of humanity to relieve the persons mentioned in the petition. and if that was improper, he thought that the next greatest act of humanity which could be done, was to relieve them from suspense. mr. clark was of opinion that the matter should be instantly taken up, as the fund for their relief expired on the d of february next. mr. hunter, from south carolina, mentioned a remarkable exertion of benevolence respecting persons of this kind which had taken place in that state. the motion was agreed to, and the house directly resolved itself into a committee on the question. it was then moved and seconded, that the president be authorized to pay $ , of the public money for the use of the refugees, and to negotiate the payment of it, with the ministry of france. mr. boudinot was convinced, that, by the constitution, the house had a right to give it in the first instance. he considered the committee as too confined, and thought that it should have comprehended all the people of this sort in north america. many of these people since winter set in, must have perished of cold and want in the streets of philadelphia, but for the benevolence of some well-disposed people. he urged the committee, in the most pathetic language, to extend immediate and effectual relief. mr. s. smith was confident that congress would be repaid with thanks by the republic of france. he said that a supply of powder and ball had been sent from one of the southern states to st. domingo, and that the price had been punctually and thankfully repaid. santhonax and polverel had been recalled, who were the authors of all the mischief that had happened. the refugees expected to return to their settlements before the first of may, and they would then be very able and very willing to repay the money themselves. mr. smilie recommended the entering into a negotiation with the french ambassador, for securing payment of what sum should be voted. mr. clark hoped that the motion would instantly pass. in a case of this kind, we were not to be tied up by the constitution. were algerines cast upon the mercy of america, in such a situation, he would pay them the same tribute of humanity. the french ambassador had restricted his services to a particular class of people. it was not the business of the house, whether the refugees at baltimore were democrats or aristocrats. they were men; and, as such were entitled to compassion and to relief. mr. s. smith, in reply to mr. smilie, said, that mr. genet, when solicited on behalf of these people, made answer that he was not authorized on the part of the republic to give them any thing, but sent them $ , from himself. mr. smilie replied that mr. smith had mistaken him; he did not wish to seek money from mr. genet. but he thought it would be singular to give away so large a sum, without endeavoring to secure the approbation of the french minister, as a step towards repayment. mr. dexter had formerly entertained scruples, but he now approved the motion. mr. nicholas did not approve the motion in its original shape, nor did he like it better for its being now altered into a motion for authorizing the president to pay the money. mr. n. expressed, in the strongest and most unequivocal language, his compassion for the sufferers; but, as he had not seen a way pointed out of relieving them, agreeably to the constitution, he recommended a shorter one. out of the liberal compensation which the members of that house received from the country, he thought that the sum wanted might easily be subscribed. he did not know whether the republic would thank us for helping them; perhaps they might be accounted rebels. mr. fitzsimons proposed a second amendment of the original motion. mr. nicholas replied: if this thing goes down at all, it should be as an act of charity, and marked in giving, that it is going beyond our power, but that, from a knowledge of the universal wish of our constituents, and a sense of our general obligations to france, we have granted the money. mr. scott pressed for the relief in reference to the citizens of baltimore. if they were invaded by an army, we certainly would assist them; and where is the difference, (added mr. s.,) whether they be an army of fighters, or an army of eaters. we must relieve them, to be sure. mr. s. smith said that these distressed people were all women and children, except three old men. the boys who were old enough, had been bound apprentices. the men had been enlisted by the advice of mr. genet, who said the republic wanted recruits. he had likewise obtained two ships for five hundred of the refugees who wanted to go to france. genet was able to do nothing more for them, as the $ , that he gave, were out of his own pocket. it had been alleged that there was no precedent for relieving these people. he mentioned two: the americans in captivity at algiers had been assisted by the british consul. some years ago, the crew of an american vessel had been shipwrecked on the coast of portugal. they were assisted with the utmost generosity by a private gentleman. in both cases, congress thankfully repaid the money advanced. the gentleman from virginia (mr. nicholas) had offered his salary, but the idea had not been supported, so that it went for nothing. and are we (said mr. s.) to stand up here, and tell the world that we dare not perform an act of benevolence? is this to be the style of an american congress? the gentleman from virginia had said that perhaps these people would be considered as traitors by the republic. were women and fatherless children to be regarded as traitors? mr. s. was extremely affected, and apologized more than once to the house for the warmth with which he spoke. he said that himself and several others who had witnessed the scene of distress, were surprised; the gentleman did not feel as they did. mr. madison possessed constitutional scruples. he thought that the gentleman from maryland (mr. s. smith) would not have injured his cause by a greater moderation of language, nor his credit for benevolence by not saying that his sympathy arose chiefly from being an eye-witness. at last, the speaker proposed to the committee an amendment, which met the ideas of the members, and the resolution passed, as follows: _resolved_, that a sum not exceeding ---- dollars be appropriated for the support of such of the inhabitants of st. domingo, resident within the united states, as shall be found in want of such support. that a regular account of the moneys so expended be kept; and that the president of the united states be requested to obtain a credit therefor, in the accounts between the french republic and the united states. _ordered_, that a committee be appointed to bring in a bill in conformity with the foregoing resolution, and providing for the due application of the moneys aforesaid; and that mr. ames, mr. tracy, and mr. dent, be the said committee. thursday, february . _war with algiers._ the resolution being read for building four ships of guns and two ships of guns-- mr. madison rose to inquire whether there was in the public stores of the united states, a sufficient quantity of cedar and live oak for building the proposed six vessels? he was answered that there was not. mr. m. then observed, that it was evident this fleet could not be ready for effective service in the course of the present year. he imagined that there was another resolution, precedent as to the time of voting it, which ought to be before the committee. the resolution to which he alluded, was that assigning a sum of money to buy a cessation of hostilities from the regency of algiers. he was of opinion that the project of fitting out an armed squadron was liable to many solid objections. there were two points of light in which this subject might be surveyed. the first of these was, whether the algerines acted from their own impulse in this matter? in that case, they were known to be in the habit of selling a peace; and, if they are willing to do so, he fancied that it might be purchased for less money than the armament would cost. on the other hand, if they do not act from their own impulse, but upon the instigation of britain, we may depend upon it that they cannot be bought. britain will keep them hostile. there is infinitely more danger of a british war from the fitting out of ships than from the resolution on the report of the secretary of state. the distance which the ships would have to sail is not less than three thousand miles, and their number is too small for a decisive advantage. the combined powers would embrace the equipment of these ships as an excellent opportunity to pick a quarrel with the united states. mr. m. expressed his doubts with regard to the propriety of this measure, because the expense would be immense, and there was no certainty of reaping any benefit from it. mr. clark was anxious to state his doubts on this subject, that gentlemen, who, by their habits of life, had met with opportunities of better information than he possessed, might correct him where he was wrong. in the first place, the ships would be too small in point of number to be of any kind of importance, amidst the numerous navies of europe. the distance from any friendly port, where, in case of accidents, they might repair, was likewise very great. it was to be expected that, when they fell in with british ships of war, that the latter would endeavor to search them for prohibited cargoes, and for seamen, because they were in the practice of impressing their own countrymen wherever they could find them. this would produce a quarrel. there was a scheme which occurred to him, and which he judged would be less expensive and more effectual. this was, to hire the portuguese to cruise against the algerines. he understood that the court of lisbon desired to keep her ships of war in actual service. the british have been in the habit of building frigates for the service of the algerines, and, as he was informed, mariners, at a distance upon sea could distinguish in what country vessels were built by their construction. hence it would be difficult for the captain of an american frigate to ascertain at sea a british ship of war from an algerine. he had an objection to the establishment of a fleet, because, when once it had been commenced, there would be no end of it. we must then have a secretary of the navy, and a swarm of other people in office, at a monstrous expense. if we build six ships this year, we should next year find it necessary to build six more, and so on. the combined powers would find a much better pretence for a war by this armament than from the resolutions on the report of the secretary. mr. c. closed his speech, which was heard with great attention, by observing that he rose principally to submit his opinions on this question as hints for those who were better qualified to form a judgment on the subject than himself. mr. baldwin expressed his doubts as to every part of this subject. he had not been able to gain any information that was satisfactory. to block up the mediterranean was, he believed, impracticable. bribery alone could purchase security from the algerines. spain and britain had always found this method the cheapest. he had much confidence in the gentleman who had been employed to go as an envoy to algiers from this country. he was a thorough man. mr. b. had yet formed no decided opinion, and could wish to suspend his judgment till he learned the issue of the present application to the dey. if bribery would not do, he should certainly vote for equipping a fleet. mr. nicholas feared that we were not a match for the algerines. a small number of sailors were sufficient to navigate one of their ships, and they had a militia to man them who were innumerable. he had not been able to form an exact opinion, but he was afraid that we were not a match for them by sea. mr. s. smith rose chiefly to answer the interrogatories proposed by mr. clark, as to what harbors in europe american ships could retire to for shelter? in an early part of his life, mr. s. said that he had been in that part of the world, and could assure the house that there was no want of proper harbors to refit or obtain provisions in. the first he mentioned was toulon; marseilles, likewise, had a most excellent harbor, and there was no doubt that our vessels would be received there in the most friendly way, as the algerines had lately declared war against the republic of france. spain had, likewise, several excellent ports--malaga, cadiz, barcelona, and ferrol. in all these the american squadron would be heartily welcome, and meet with all kinds of naval stores in the greatest abundance. lisbon, also, was a fine harbor, and oporto would be proper for the same purpose. so that, in case of accident, the armament had nothing to fear from wanting a place of retreat. he had no doubt that our vessels and our sailors would both be much superior to those of the algerines. their ships were old and crazy, and were presents made them by the powers with whom they are not at war. the american bottoms must be better; and our fleet will most likely have its station between oran and malaga, and, stretching across between those two ports, block up the mouth of the straits. he adverted to the mistake of mr. baldwin, who had said that spain never attempted to block up the straits; the proper answer to which was, that spain had an extensive coast, not less than four or five hundred miles, within the mediterranean; so that she was quite differently situated, with regard to them, from america. mr. s. mentioned, as a consolatory circumstance, that our profit was twice as great at present, in commerce, as it was before the war, in spite of all the spoliations committed by britain, and by spain; and, if the war continues, the profits will continue to multiply twice as fast as they would otherwise do. as an evidence of this fact, he mentioned the high price of wheat at present in this market, and asked whether any gentleman had heard of a price so high at this season of the year before? a gentleman (mr. nicholas) had spoken of an algerine militia. why, sir, (said mr. s.,) i shall set down against them the american militia, and so that account is settled. he estimated that the whole american exports and imports, in round numbers, was twenty millions of dollars each; and that the extra insurance on account of the algerines, from one end of the year to the other, would not be less than five per cent. to the whole, which was altogether two millions of dollars. from this mr. s. inferred that it must be the very worst kind of economy to hazard an expense of two millions of dollars of insurance, for the sake of saving the charges of this armament. he did not see it improbable that the algerines might very soon be on our coast, under the command of british or american renegadoes. it was nothing uncommon, among seamen, for two captains to be in the greatest friendship to-day, and plundering each other's vessels to-morrow. as an example of what americans, in particular, are capable of doing, he repeated the history of a mr. cooper, of virginia, who, some years ago, fitted out a ship for the express purpose of cruising against american vessels bound from or to the east indies. he sent a person into the harbor of algiers to solicit a commission from the dey, and this envoy had very near been taken prisoner, as the dey wanted to have made a slave of him. mr. s. said that mr. cooper was known to be a man of courage, of perseverance, and as possessing that species of intellectual resources which qualify an adventurer for bold undertakings. he inferred, from this anecdote, that, if mr. cooper, a man of respectable birth and connections, could form such a scheme, what was not to be feared from the common set of seamen? he could not tell where the danger might end; nor did he know whether philadelphia itself would be in safety. they might speak of their forts as much as they pleased; he knew their force, and did not much value it. the british had gone past them, and what was to hinder the algerines, or such a man as mr. cooper, from getting past them? were he on the coast of an enemy, he should not have the least scruple of engaging to run a ship by such forts, when there was in view so great a prospect as the plunder of philadelphia. he strongly pressed the necessity of sending out the proposed fleet as quickly as possible. mr. ames attacked the mover of the resolutions on the report of the secretary (mr. madison) for not displaying in the affair of the algerines some part of the spirit which he had exerted on the other occasion. he thought it shameful to buy a peace, and that there could be no security, if we did. he recommended an armament. portugal had shown herself friendly; and, referring to what mr. clark had stated, he was of opinion she would give our ships shelter in her ports. he thought that six stout frigates at the mouth of the straits would do the business. he went at considerable length into mr. madison's resolutions, and condemned, upon various grounds, the arguments and conduct of the gentlemen who supported them. yesterday, we were told that britain durst not quarrel with america, and to-day she is represented as ready to do it. our commerce is on the point of being annihilated, and, unless an armament is fitted out, we may very soon expect the algerines on the coast of america. mr. giles, in reply, said that mr. ames drew inconsistent pictures. one day he represented the american commerce at the summit of prosperity; the next, it was reduced to nothing. in defence of the commercial regulations, he reminded the house that britain, and not algiers, was the real object of alarm, and the real source of hostility. it was, therefore, proper to provide remedies against both of these illustrious confederates. algiers was but the instrument, britain was the cause. the reliance of britain upon this instrument plainly showed that she was not equal to a war and a commercial contest. she had, therefore, turned loose the algerines upon us--a fact which is pretty generally acknowledged on both sides of the house. it is, therefore, in the power of britain to prevent the progress of these pirates. the commercial restrictions will reduce britain to difficulty, and she will then, for the sake of friendship with america, be glad to put a stop to the algerine ravages. until some measure of this kind has been adopted, britain, as she has raised up algiers, will keep her up. the cheapest mode of getting peace will certainly be by embracing the commercial regulations. mr. g. was averse to the proposal of a fleet. he agreed very much with the gentleman from new jersey, (mr. clark,) that it would be a better expedient to hire the fleet of portugal. he considered the establishment of a maritime force as having a direct tendency to war; whereas, the commercial restrictions had the same tendency to peace. the sending of american armed ships into the midst of the fleets of europe would certainly produce a quarrel. it had been well remarked, (by mr. clark,) that, if an attempt was made to search our ships of war, like our merchantmen, it would infallibly produce a public affront, and consequent hostilities. mr. madison, in reply to some remarks which had fallen from mr. smith, respecting the present high price of wheat in the american market, said, that he had been informed of a place where wheat sold for four shillings and sixpence per bushel only, where the dollar passes for six shillings. mr. m. supposed that britain could render very essential service to the algerines, without embarking in a war. she has not embarked in a war to the north-west of the ohio, but she has done the same thing, in substance, by supplying the indians with arms, ammunition, and, perhaps, with subsistence. he did not assert that britain directed the plan of the indian expeditions, for he had no explicit evidence that they actually did so. in the same way that they gave underhand assistance to the indians, they would give it to the algerines, rather than hazard an open war. the committee now rose, without coming to the question. friday, february . john page, from virginia, appeared, produced his credentials, and took his seat in the house. _algerine war._ the naval force. the house resolved itself into a committee of the whole house on the state of the union. the chairman read the resolution before the house for equipping a naval force. mr. madison thought this expedient unlikely to answer the purpose, and liable to many objections. before the american squadron can be equipped, the truce between algiers and portugal must expire. when that expiration shall take place, she either will not renew the truce at all, or she will stipulate that the united states shall be comprehended in it. he would save the money intended for the fleet, and hire the portuguese ships of war with it, as soon as the truce ends. he wished that the committee might reject the present motion, and when they did so, he would move a resolution, a copy of which he read to the committee. it was in substance: "that the sum of ---- dollars be provided to be employed in such a manner as should be found most effectual for obtaining a peace with the regency of algiers; and failing of this, that the sum should be applied to the end of obtaining protection from some of the european powers." mr. m. considered the armament at present proposed, as quite too small to answer any efficient purpose. a member here observed, that it would be hazardous to rely on portugal; because, though the truce might expire in about six months, it would possibly be renewed at the end of that time, or converted into a peace. mr. fitzsimons wished that gentlemen would pay some attention to attested facts, before they so abruptly declare that the six ships proposed by the committee to be built and put into commission, were incompetent to the end for which they were designed. the committee had bestowed considerable time in deliberating upon the best information which could be obtained, before they specified the force requisite to be employed, and they had been satisfied, that what was now proposed would be equal to the end. here mr. f. read a different statement of the ships of war in the service of the regency of algiers, at different times. one of these shows that in the year , there were nine xebecs, from thirty-six to ten guns, and one ship of forty guns upon the stocks; but that several of the xebecs were laid up or unfit for service. a second estimate of the algerine maritime force, had been transmitted by mr. humphries. he specified four frigates, two xebecs, and one brig. by advices still more recent, the fleet consisted of one vessel of forty-four guns, one of thirty-six, one of twenty-eight, three xebecs, and a brig. mr. f. observed, that gentlemen had objected to the sending out an american fleet; that they could not always keep together. he reminded them, that from november to march or april, the corsairs of barbary never go out to sea. there were two months during that time, when they were restrained by their religion from piratical excursions. the committee had been told, that the portuguese are ready to assist us. there is ground to expect this assistance, but not to depend upon it. two american frigates, along with the portuguese vessels, would be fully equal to the task of curbing the algerines. as to militia, he could not see of what consequence they could be in a naval contest. with regard to expense, he stated a very important fact. the united states import, annually, two millions of bushels of salt from these countries, which the algerines will cut off from our commerce. the rise on that article must then be at least one dollar per bushel; which is a tax of two millions of dollars at once, or three times the expense of the armament. probably, however, the loss may extend to four millions of dollars on this single article of salt, in one year only; a sum which would keep up the fleet a long time. we have been trying to buy a peace, but without success; and if we are not able to enforce it, the price of buying it must be so much the higher. as soon as portugal is left to herself, she will certainly protect us, because it is much for her interest to do so. at present, she cannot, perhaps, from the influence of the combined powers. mr. f., therefore, recommended an armament in the mean time. mr. smilie objected to this measure, because it was unequal to the task. britain would assist the algerines underhandedly, as she did an enemy in another quarter, and would continue to do so. he did not think she was shameless enough to own it, but she would do it.[ ] mr. nicholas went on the same ground. he said that britain had not been content with striking up a truce for portugal, that the algerines might be let loose on american commerce, but her minister at the court of lisbon had endeavored to prevent our vessels from obtaining a portuguese convoy. not content with insuring a loss to america, she had striven to make that loss immediate. as to the duration of the truce, it could not last long, for the queen of portugal had, in fact, broken it already. she had declared that the trade to that country should pass unmolested; to which condition it was not likely that the algerines would consent. the portuguese nobility had clamored at the acceptance of a truce. so that, on the whole, it could hardly last long. a naval force was a very expensive affair. the greater part of the immense debt of england had been lavished on her navy. he was against building a navy. mr. swift had been always sensible that the situation of this country was not fit for war. we have a very heavy debt; but still it is better to bear debts than depredations. a gentleman of extensive information (mr. s. smith, in yesterday's debate) had stated the rise of insurance as much less than the armament would cost. britain had always more dependence on her navy, than on the immense sums that she pays to these barbarians. mr. s. had no doubt that the proposed fleet would have its intended effect. he despaired of either buying a truce or buying an ally. as to the militia of algiers, they could not be brought into action against frigates. he considered the charge of hiring the algerines, as an unfounded accusation on the honor of britain. he could not bring himself to believe that she was capable of a conduct so exceedingly disgraceful. he had no direct evidence to convince. it might be objected to this armament, that it would augment the national debt, and throw too much influence into the hands of the executive government. but the same objection might be started against every armament whatever. mr. murray said, the gentleman from virginia, (mr. madison,) yesterday, observed that he was not a little surprised that those who a few days since had appeared so alarmed at the phantom of war, should on this question appear so willing to meet it. he would remark that those gentlemen were alarmed at a shadow which appeared followed by the substance of war, and were unwilling to do any thing that might lead to a war that did not yet exist. but we were now at war with algiers, and had no choice. they had been at war with the united states ever since the end of the revolutionary war. the spaniards and portuguese kept them within the mediterranean. gentlemen who are averse to the report, hold up two substitute measures: one, which was suggested, and has been argued by the gentleman from virginia, (mr. madison,) is, that we ought to grant a sum to portugal for her protection of our trade. the other is, that commercial regulations will accomplish our protection. he liked neither. the last, if permanent, will withdraw all temptation from great britain to interpose her good offices. the first is worse; it is subsidizing portugal at the expense of our own people, and that too without security. gentlemen would make it the interest of portugal to make such breaches of truce as would occasionally withdraw protection, and oblige us to subsidize her higher. it would create a disgraceful dependence on a foreign power, and weaken the spirit of our marine; whereas, if you fit out frigates, you employ your money in nourishing the roots of your own industry; you encourage your own ship-building, lumber, and victualling business. he believed, that however true might be the suspicion of british interference in indian affairs, and he feared it was too true, he did not believe the evidence as to algerine interference strong enough to induce an argument against the report, under a supposition that as great britain had effected the truce, so she would aid algiers against us. he thought so, because it was not now as much her interest as it was in times of peace. in times of peace, had she let loose the algerines, her own navigation would have been enabled to carry for us, but now it would be molested by the french. he did not believe nations, more than persons, would do wrong purely out of evil designs, devoid of interest; the greatest villain would not. at present, their ships are liable to attack from the french, and he had it from good authority, that so far were the british from having advantaged themselves if they had been so base, that scarcely a british ship had appeared since in our ports. the ship frigates would be able to blockade the gut of gibraltar; the algerines did not sail in fleets; they wanted plunder, not glory; when they discovered they had to get the first by hard fighting, they would listen to peace, accompanied by money. spain, it was true, had purchased a peace, but there was an hereditary inveteracy against spain, and a facility of attacking her shores which we need not fear; so it was her interest to buy a peace when war could bring her nothing but a glory that almost disgraced her armies; as to jealousy of power in the executive, he hoped to see a proper equipoise in the powers of this government; but, when proper occasions occurred, he hoped congress would never refuse the adequate means to enable the executive to discharge its constitutional duties. mr. goodhue observed, that the committee had carefully looked over the statement of the marine force of algiers for several years back, and had no reason to doubt that the six vessels would be equal to the purpose intended. there was no ground to suppose algiers would have more force at present than she had during her war with portugal. he had no doubt that the algerines were let loose on the american commerce to prevent supplies going to france, and while the war lasts, we shall not be able to buy a peace. it is said, that the truce was but for a year, and in six months it will expire. he did not wish to depend on that, when the evil is so great. and why depend on portugal? she is more under the influence of britain than any other nation in europe. when britain has been at the trouble of stipulating a peace for portugal, will she suffer that nation to assist us? certainly not. or is it wise to stand by and depend upon such a resource? mr. madison said, that gentlemen thought so differently on this subject, and advanced arguments against his side of the question of such a different nature, that it was difficult or impossible to give them an answer. he then proceeded to quote the speech of mr. goodhue; when that gentleman rose to explain. mr. m. then proceeded to notice the speeches of mr. fitzsimons and mr. s. smith. both of these gentlemen were up more than once to explain, as having been misquoted. in a speech of considerable length, he was not suffered long to proceed without interruptions of explanations. this produced a scene of altercation. one circumstance, however, was mentioned by mr. fitzsimons that deserves particular notice. from april to december next, he said, the insurance on american ships from england and the rest of europe, will not be less than twenty-five per cent. of their value on account of the algerines. the house now adjourned, without taking any question. tuesday, march . _estimate of appropriations._ the house again resolved itself into a committee of the whole house on the report of the secretary of the treasury of the sums necessary to be appropriated for the service of the year one thousand seven hundred and ninety-four; and after some time spent therein, the chairman reported that the committee had again had the said report under consideration, and come to a resolution thereupon; which he delivered in at the clerk's table, where the same was twice read, and agreed to by the house, as follows: _resolved_, that, for the support of the military establishment of the united states, for the year one thousand seven hundred and ninety-four, there be appropriated a sum of money, not exceeding one million four hundred and fifty-seven thousand nine hundred and thirty-six dollars and one cent; that is to say: for the pay of the legion of the united states, $ , for subsistence, , for forage, , for clothing, , for equipments for the cavalry, , for horses for the cavalry, , for bounty, , for the hospital department, , for the ordnance department, , for repairs and articles directed to be made and purchased by the president of the united states, , for defensive protection of the frontiers, , for the indian department, , for the quartermaster's department, , for contingencies of the war department, , and for invalid pensions, , ------------ $ , , _ordered_, that a bill or bills be brought in, pursuant to the said resolution; and that mr. boudinot, mr. trumbull, and mr. gillespie, do prepare and bring in the same. thursday, march . _slave trade._ the house went into committee of the whole on the bill to prohibit the carrying on the slave trade from the ports of the united states, mr. boudinot in the chair. the two first sections of the bill were agreed to, with one alteration moved by mr. trumbull, which was to give the district court as well as the circuit courts cognizance of the offence. the third section which relates to the penalty &c., it was moved should be struck out. this motion was negatived. it was then moved to insert the word _foreign_ before "ship or vessel;" which was agreed to. the committee proceeded through the bill, which was reported to the house with sundry amendments; these were agreed to by the house, and the bill ordered to be engrossed for a third reading. monday, march . _algerine war._ naval armament. mr. giles observed, that, from the sense of the house several times manifested on this subject, there remained no doubt but that the bill would pass. in that event, he most earnestly hoped that the success of the measure would, at least, equal the expectations of its advocates. indeed, he hoped that their expectations would be disappointed and exceeded; for it did not seem to him that even they were very positive as to its full competency to the end proposed. he even wished that every ship could be furnished with the cap of fortunatus and the shield of hercules; for he was persuaded that, in the present state of things, some magical influence would be found essential to enable them to effect their undertaking. he observed, that, at present, the wisdom or folly of the proposed measure was mere matter of opinion; that the passage of the bill will furnish futurity with a complete experiment of its true character. he intended to offer his reasons against the passage of the bill, not with a hope of making proselytes, but as a testimony of the real motives which influenced his opposition. with this view, he should only mention some of the general impressions produced on his mind by this subject, without fatiguing the house with minute exemplifications of them. the subject had presented itself to him in two points of view-- st, as affording a protection to our commerce against the algerine depredations; d, as the foundation of a permanent naval establishment. he could not help premising that, in the course of discussion, the advocates of the bill had censured its opponents with a want of disposition for the protection of commerce, whilst they claimed a monopoly of all good intention towards this object. he did not mean to derogate from the good intention of the favorers of the bill, but he believed its opponents possessed as pure a zeal for the protection and due encouragement of commerce as its advocates. it is not a question whether commerce is, or is not, to be protected; but whether the plan proposed be the most effectual and the least exceptionable that can be devised for that purpose? the difference of opinion does not consist in the end to be produced, but in the means proposed to effect the end. the first objection he should make to the bill would be, the obvious inadequacy of the means contemplated to effect the end proposed by them. the object proposed is an effectual resistance, not only to the whole present naval force of algiers, but to their whole naval ability. the bill contains, in itself, essentially a declaration of war. our calculations, therefore, should be extended to the utmost limit of the naval ability of the hostile nation. the means to be employed consist of four frigates of forty-four guns each, and two ships of thirty-six guns each. to decide with propriety upon the objection, this force should be compared with the naval ability of algiers. he did not mean to go into a minute history of algiers. he should only observe, in general, that it was a populous country; that it had furnished at one time one hundred thousand fighting men; that its power at this day was as great as at any preceding period; that they were a warlike people, accustomed to naval enterprises and desperate in naval engagements; that, for some time past, they had been subsidized for peace by almost every european nation. he could not help concluding, from these circumstances, that the naval ability of the nation either was or might, without any uncommon exertions, he rendered superior to four forty-four gun frigates and two thirty-six gun ships, the force contemplated by the bill; and, if the conclusions were just, the bill is unwise. mr. g. proceeded to consider the bill as the foundation of a permanent naval establishment. he said there was a clause in the bill authorizing the president to suspend all proceedings in the equipment of the armament, in case of a peace with algiers, which gave him some consolation; but it did not altogether relieve his apprehensions from this operation of the measure, because he knew that a permanent naval establishment was a favorite policy with some gentlemen, and because the argument had been urged in favor of the present bill. he observed that a permanent naval establishment could be recommended to the united states but from one or both of the following considerations: either upon the principle of entering into a competition for naval power with the powers of europe; or as affording security to the collection of our own revenue. he thought the question of a permanent naval establishment was one of the most important which could be presented to the consideration of the house, and that the most serious consequences were necessarily connected with it. in the first place, he viewed the establishment of a navy as a complete dereliction of the policy of discharging the principal of the public debt. history does not afford an instance of a nation which continued to increase their navy and decrease their debt at the same time. it is an operation exceeding the ability of any nation. the naval competition of the powers in europe has produced oppression to their subjects and ruin to themselves. the ruin of the french monarchy, he believed, might be ascribed very much to that cause. a navy is the most expensive of all means of defence, and the tyranny of governments consists in the expensiveness of their machinery. the expensiveness of the french monarchy is the true cause of its destruction. the navy of france furnished the principal item of that expense. the navy produced expense, the expense exceeded the revenue, new contributions became necessary, the people saw the tyranny, and destroyed the tyrant. the same effect, by the same policy, will probably be produced in great great britain. the government is not yet destroyed, but the people are oppressed, liberty is banished. the extensiveness of the government is the true ground of the oppression of the people. the king, the nobility, the priesthood, the army, and, above all, the navy. all this machinery lessens the number of the productive and increases the number of unproductive hands of the nation in great britain. the operation has been extended so far that the poor rates alone probably afforded a greater tax per _capita_ than the whole taxes paid in the united states. he was astonished with these fatal examples before our eyes, that there should be any gentlemen who would wish to enter into this fashionable system of politics. he said the united states had already progressed full far enough into this system; for, exclusively of the ordinary expense of the civil list, a debt had been funded upon principles of duration. an army had been raised, at an immense expense, and now there was a proposition for a navy. he observed that, for several years past, the appropriations for the support of the military establishment had exceeded a million of dollars per annum--from one million to one million and a half annually. he believed that, if the expense had been foreseen, there would have been more active efforts to have avoided it. it was a policy, at this day, very generally condemned; yet we are now to exhibit a counterpart of this policy upon the ocean, with this aggravation--that it will commence with greater certain expense, and with a more uncertain object. the system of governing by debts he conceived the most refined system of tyranny. it seems to have been a contrivance devised by politicians to succeed the old system of feudal tenures. both systems were tyrannical, but the objects of their tyranny were different. the system of feuds operated upon the person of the individual--the system of debts operates upon the pockets of the individual. in the feudal system, the tenant often received some indulgence and lenity from the martial generosity which generally characterized the lord. the lord was gratified with the acknowledgment of the tenant that he was a slave, and the rendition of a peppercorn as an evidence of it. the product of the tenant's labor was left for his own support. the system of debts affords no such indulgences. its true policy is to devise objects of expense, and to draw the greatest possible sum from the people in the least visible mode. it boasts not of economizing in calls upon the people for contributions. it boasts not of economizing in the objects of expenditure. it consults the obedience, and not the happiness of the people. there is no device which facilitates the system of expense and debts so much as a navy. and he declared, from that consideration, he should value his liberty at a lower price than he now did, if the policy of a permanent naval establishment should obtain in the united states. mr. w. smith remarked, that though it was not probable any proselytes were to be expected at this late period of the business, and after so ample a discussion as the question had received in its different stages, yet he considered it necessary to make a reply to some of the various objections which had just been made to the passing of the bill. many of those objections appeared to him totally inapplicable to the subject, which he should pass over in silence. if it were the design of the house to incur a vast expense in the establishment of a navy, merely for the idle purposes of vain parade, there would be force in some of the objections; but, as this was not the case, and as the measure was a measure not of choice, but of necessity, extorted by the pressure of unavoidable events, he did not feel their force in any respect. the question was, simply, whether our commerce required protection against the algerine corsairs, and whether this was the best mode of protection. the first part of the question was admitted on all sides. for himself, he had always considered the second equally clear. but in the course of the discussion, various difficulties had been started against the mode of protection, and various substitutes had been proposed, as offering a remedy more prompt, more effectual, and less expensive. he would first consider the proposed substitutes for a naval armament, and then answer the objections to it. the substitutes were: st. to purchase a peace of the algerines. d. to depend on portugal breaking her truce with algiers, and shutting up their cruisers within the straits. d. to pass commercial regulations against great britain. th. to subsidize other nations to protect our commerce. to these several substitutes, he might, in a few words, object that the first was impracticable, the second precarious, the third inoperative, and the fourth dishonorable. mr. s. next reviewed the principal objections to the bill. these were, he said, st. that the force contemplated was incompetent. d. that sending an armed force on the ocean would be the means of involving us in a war with some of the maritime powers. d. that we had no friendly ports in europe, which our frigates could resort to for supplies or refitment. th. that the expense would exceed the object to be protected. th. that our trade would be deprived of the seamen required to man the frigates. th. that it was now so late in the season we could not protect our vessels the ensuing summer, and that some favorable events might occur before the frigates could be equipped, which would render them unnecessary. th. that this was the beginning of a naval establishment, which would hereafter involve this country in immense debts and maritime wars. [to the arguments against a naval establishment, mr. smith answered:] the dangers resulting from a large navy establishment, and the immense debts they have created in other countries, had been depicted, and the house had been warned against such evils. how a bill providing six frigates, which were to exist only during the war with algiers, could excite an apprehension of a large and permanent navy, and an enormous debt, mr. s. said he was at a loss to discover. the clause which authorized the president, in the event of a peace with the regency of algiers, to discontinue the armament, was a complete answer to all the reasoning which had been indulged on the subject of navies and debts. admitting there had been no such clause, he did not feel the weight or applicability of the reasoning. this country is peculiarly fitted for a navy: abounding in all kinds of naval resources, we have within ourselves those means which other maritime nations were obliged to obtain from abroad. the nature of our situation, and the navigating disposition of a considerable proportion of our citizens, evince still more the propriety of some naval establishment. perhaps the country is not yet mature for such an establishment, to any great extent; but he believed the period was not far distant, when it would be. sweden, with a population not greater than that of the united states, and with more slender resources, maintained a large navy. he saw no reason why the united states, with an increasing population, much individual wealth, and considerable national resources, might not, without ruin, do as much, or why the equipment of a squadron, inferior to that of any of the petty nations of italy, should involve us in an insupportable expense. the question was then taken on the passage of the bill, and it was resolved in the affirmative--yeas , nays , as follows: yeas.--messrs. fisher ames, john beatty, elias boudinot, shearjashub bourne, benjamin bourne, lambert cadwalader, david cobb, peleg coffin, joshua coit, henry dearborn, george dent, samuel dexter, thomas fitzsimons, dwight foster, ezekiel gilbert, nicholas gilman, henry glenn, benjamin goodhue, james gordon, samuel griffin, george hancock, james hillhouse, william hindman, samuel holten, john wilkes kittera, amasa learned, richard bland lee, william lyman, francis malbone, peter muhlenberg, william vans murray, josiah parker, thomas scott, theodore sedgwick, jeremiah smith, samuel smith, william smith, thomas sprigg, zephaniah swift, silas talbot, george thatcher, uriah tracy, jonathan trumbull, john e. van allen, peter van gaasbeck, peleg wadsworth, jeremiah wadsworth, artemas ward, john watts, and richard winn. nays.--messrs. theodorus bailey, abraham baldwin, thomas blount, thomas p. carnes, gabriel christie, thomas claiborne, isaac coles, william findlay, william b. giles, james gillespie, christopher greenup, william barry grove, carter b. harrison, john heath, daniel heister, john hunter, william irvine, matthew locke, nathaniel macon, james madison, joseph mcdowell, alexander mebane, william montgomery, andrew moore, joseph neville, anthony new, john nichols, nathaniel niles, john page, francis preston, john smilie, israel smith, thomas tredwell, philip van cortlandt, abraham venable, francis walker, benjamin williams, paine wingate, and joseph winston. thursday, march . _sequestration of british debts._ mr. dayton submitted the following resolutions: "_resolved_, that provision ought to be made, by law, for the sequestration of all the debts due from the citizens of the united states to the subjects of the king of great britain. "_resolved_, that provision ought, in like manner, to be made for securing the payment of all such debts into the treasury of the united states, there to be held as a pledge for the indemnification of such of the citizens of the said states as shall have suffered from the ships of war, privateers, or from any person, or description of persons, acting under the commission of authority of the british king, in contravention of the law of nations, and in violation of the rights of neutrality." _ordered_, that the said resolutions be committed to a committee of the whole house immediately. the house accordingly resolved itself into said committee. mr. dayton then rose in support of his propositions. when he brought them forward he did not accompany them (he said) with many observations, because he was then laboring under indisposition. the same cause would render him very concise now. the injuries and insults we have suffered from great britain, he conceived, need not be dwelt upon. they are well known, and it is universally acknowledged that we ought to adopt such measures as would screen us from a repetition of them, and secure to us reparation. the resolutions he had brought forward he intended as part of that system of defence and preservation, other portions of which had already received the sanction of the house. these resolutions, he conceived, would not be the least efficient part of that system. he believed that, when the conduct of great britain is reviewed, it would be found that it is treating their subjects with great lenity to speak of sequestration only; we should be warranted in confiscating, for they have subjected our property to condemnation, without an appearance of an intention to indemnify. as to restitution of the property of which we have been plundered on the high seas, it is impossible. it is condemned, sold, and scattered, and no hope can be entertained that they intend to indemnify our suffering citizens. if it had been their intention to indemnify, their court, in explanation of the instruction of the th of november, would not have given orders to condemn vessels detained in suspense in the west indies until that elucidation was received. since, then, restitution is impossible, and not a shadow of hope exists that indemnification will be granted; we have only to determine whether we shall give up the property of which we have been plundered, or claim it with effect--claim it, and enforce the claim, by showing that we have the means of retaliation within our power. after the proceedings of the british towards us, he believed, we should have been warranted in confiscating the property now proposed to be sequestered, without negotiation. this would have been meting to them as they meted to us. if sequestration is hostility, as he had heard it called, what, he asked, is condemnation? besides, they have impressed american citizens into their service. we have reason to believe, (he concluded by remarking,) from the negotiation of our minister with lord grenville, from private information on the tables of congress, and from the conduct of some of their officers high in command, that to make war on us is part of their system. mr. s. smith said he always had wished for peace, as the first desideratum. with this view, agreeably to the wise recommendation of the president, he agreed to those measures calculated to put the country in a posture of defence. this was the best mode of securing peace. with the same view, he proposed an embargo to be laid, which would have drawn to our ports the remainder of our maritime possessions, and have left them no longer within the grasp of a nation whose only rule of right is the measure of her power. he still wished, as long as a shadow of hope exists, to secure the blessings of peace. with the resolutions now offered, he was of opinion that we might yet have peace; but, without them, we shall certainly have war. they will arrest twenty millions of dollars in our hands, as a fund to reimburse the three or four millions which we have been stripped of by that piratical nation, great britain, according to the instructions of that king of sea robbers--that leviathan, which aims at swallowing all that floats on the ocean--that monster, whose only law is power, and who neither respects the rights of nations nor the property of individuals! this character the nation he had mentioned had long deserved. many proofs might be cited in support of the assertion. he would only refer to their conduct at st. eustatia, when they robbed their allies, the dutch, and their generals and admirals turned vendue-masters, and conducted the plundering, to collect rewards for their exploits. is it from such a nation (he asked) that we are to hope for justice? they know not what justice is. it is said that they showed their love of justice when they so liberally compensated the tories after their war with us. though they despise traitors, yet self-interest will lead them to reward the treachery, to encourage a principle which may again be useful to them. self-interest, then, and not justice, actuated them on that as on every other occasion. let us pass the resolutions, then send an envoy to great britain, and we shall have peace. we shall then be able to speak to them of their interest. but if war should be the inevitable issue, americans, he was sure, would meet it like men, rather than submit to insult and suffer the honor of the country to be prostrated. if we were able, while in infancy as a nation, to assert our rights, will it be said, that, now we have arrived at a state of manhood, we shall fear them? no! our young men burn for an opportunity to defend the liberty, rights, and property of their country. they will step out as one, and meet the event like men. he read a quotation from _vattel_, to show that a nation has a right to pay her citizens for losses inflicted by another nation, contrary to right, by confiscating the property belonging to the citizens of that nation. the tie of interest, he concluded by remarking, is the strongest tie we have upon great britain. let us pass the resolutions, and that nation will never again give us cause to pass similar ones. the people out of doors will say that we have done right. the nations of europe will rejoice to see this power, which is committing depredations on all nations, humbled. the resolutions, he observed, do not regard the property in the funds. to touch this is not one of the means of retaliation warranted by the law of nations. public contracts should be sacred. mr. boudinot said, he had not intended to take part in the debate at this early stage of it; but what had fallen from the member last up, convinced him that the house should not go into a consideration of the subject at this time. it should be considered with coolness, and all passions put out of the question. no doubt we have a right to make reprisals, as the legislature has a right to declare war; but he doubted whether the united states, in their present situation, would find it their interest to go into such measures. the authority read from _vattel_ by the member last up, he observed, made against that member's opinion. _vattel_ expressly says that reprisals should not be made on property intrusted to public faith. the debts of british subjects here are in that predicament. he had heard that gentleman, not long since, with pleasure, expatiate with warmth on the advantages of credit, especially to this country. should that credit be destroyed (he asked) by destroying the confidence of foreigners in our faith? but, even if this retaliation is lawful, will it be the interest of the citizens, or rather of the government, to take such a step at the present time? we have no doubt been cruelly treated; but we have made proper application for redress, and received an answer? we should first send a special envoy and insist on an immediate answer. this would be the mode of securing peace; at least, it offers the best chance of securing it. the aggressions on our commerce made by great britain are no doubt enough to rouse any american's feelings; but the legislature ought not to be swayed by passions; they should discuss the subject calmly and deliberately. he hoped the committee would rise and allow time, at least, to take the necessary measures of defence; for, could the legislature justify to their constituents this step of retaliation, should immediate hostilities, warlike hostilities, be the consequence? to justify a measure of this kind time should be given for the defensive system adopted to be carried into operation. mr. mercer next spoke. he owned the measures proposed appeared to him great and momentous, and, had he any powers of declamation, he should think it improper to give loose to them on a question of this kind. we should weigh well our interest, examine carefully the situation in which we stand, and determine calmly where we shall place our next step. the proposition is, to arrest, not to confiscate, the debts due to british subjects. from his recollection of the positions established by the best jurisprudence writers, no doubt remained in his mind that we have a clear right to secure to ourselves reparation in that way, and, in our predicament, confiscation even would be warranted, and by a point as firmly established as any principle which has the general practice of nations for a basis. one of the latest writers on national law (_binkershoek_) is of opinion that debts are property, as well as any thing else, and sees no reason why they should not, as well as other kinds of property, be seized to secure indemnity for injuries. this is the opinion of _wolfius_, of _vattel_, _grotius_, and of his commentators. he could go on with a long list of authorities, and refer to actual treaties to show that it has been the practice of nations. having established the right, he proceeded to consider the expediency of the propositions. gentlemen, he hoped, did not wish that we should make a solemn declaration of war before we acted. this is no longer the custom among nations. it would be a pompous display of candor which no longer exists. have any nations in the present european war, premised their operations by a declaration? no; their first step was to do all the injury in their power to their enemies. then, we having taken what steps will best tend to our security, and give us the best hold of our enemy, let us not, however, lose sight of a settlement by negotiation. let us show mankind that peace is our first wish. when we are thus prepared, let us step forward to an amicable negotiation. let us call on the executive to send forward some proper person to the court of great britain, to assure them that we have a high sense of the injury done us; that we have it in our power to resent it, but wish to see the difference settled by receiving an indemnification. we shall thus make it their interest as well as duty to allow it. this he conceived to be the line of conduct we should adopt if we wished to preserve the western hemisphere from the scourges that desolate the old world. by some such measure as that proposed, we should make their motives for peace more weighty, and we should give assurances of our amicable disposition, by showing that all we wish is a just compensation. in a matter of this kind he was sensible of the danger of precipitation. the best mode of arresting the property proposed should be calmly weighed. he believed that something like the proposition made by mr. smith, of south carolina, before the house resolved itself into a committee--a stop to all transfers of british property--would be proper as a preliminary step. he concluded with some observations on the respect which nations, however weak, will command from their superiors in strength, by showing that they will not suffer imposition, by joining heart and hand in defence of their rights. this spirit, he was sure, animates americans, and now their power is better able to keep pace with that spirit than when we humbled that nation. at that time we were in our infancy--an infancy by no means thriving under the trammels of the mother country--and, when they turned us adrift, and began their hostile spoliations, they carried with them all our means of defence; but now, thank providence, we have spirit and power to defend ourselves. if the gentleman from south carolina (mr. smith) would modify his proposition, and make the term thirty days, it should have his assent in preference to that now before the committee. mr. smith (of south carolina) said, that the proposition he had read before the house went into committee was in the nature of an embargo on debts, securing them from transfer until the necessity of sequestering them more plainly appeared. the proposition did not then appear to meet the wishes of the house. when the committee should rise he would again bring it forward. the question now before the committee is, whether they will agree to a sequestration of british debts. he wished this object had not been coupled with the indemnification to our own citizens, because it is fairer to decide each question upon its own merits. that part of the resolutions which contemplates an indemnification may give a weight to the first part which it might not intrinsically deserve. he made some observations on the propriety of cool deliberation on the present important subject. the passions should be banished, and calm reason more than ever courted. it requires all the wisdom of the legislative body now to combine our national honor with our national safety. he had doubts on the propriety of the resolutions proposed, but acknowledged that the arguments used in their favor had great weight in his mind. if the situation of this country be compared with that of other commercial nations, the propriety of something like the present resolutions would appear more evident. when other commercial nations wish to quarrel with us, their navies enable them to seize our vessels, and we cannot retaliate in the same way. then we must fly to such means of retaliation as are in our power. if they take our property of one description, and we cannot lay our hands upon the same kind, we must take any of theirs within our reach. this reasoning has, no doubt, great force; but the sacredness with which the modern usages of nations has shielded debts is a great bar to our proceeding in the present case. contracts between individuals are now considered as out of the reach of governments, and it is the modern usage not to meddle with them. in the beginning of our late war, debts were not confiscated. the state of south carolina, though certainly not wanting provocation, while confiscating all other property, left debts untouched, under the idea that private contracts are sacred. but this, in a case of war, and urgent necessity, might be overlooked; but if we are not in a state of war, perhaps meddling with private contracts might provoke it. credit is certainly important to this country. we should consider how far the operation of the resolutions proposed would give a shock to it. besides, they might have a tendency to involve us in future wars. we shall yet long be under the necessity of receiving certain supplies from europe, and shall have debtors among us for those supplies. these debtors may at any time, when the burden weighs heavy, think of easing it by fomenting dissensions with the foreign creditor nation, in expectation that a confiscation of the debts may be an effect. it is true that, in such a case, they will not be exonerated. but it cannot be supposed that the government to whom the debts would be transferred could prosecute the recovery of them with as much ardor as an individual. the gentleman last up had relied on the authority of ancient and foreign jurists. some among this class of writers warrant putting prisoners to death--a principle which modern custom has put a stop to. they also, it is true, warrant the confiscation of debts; but _burlamaqui_ says this is not the practice of modern nations. none, or very few trifling examples can be cited, he believed, of a departure from this principle, in modern times, among nations where commerce is cherished. this country depends on commerce, and credit is one of the means by which it flourishes; we should, then, not endeavor to weaken it. if we are once over the barrier, by trifling extensions of the principle we may be carried to immoderate lengths, indeed. some persons who are in favor of sequestering private debts, speak with horror of touching the public funds. for his part, he did not see much difference between confiscating private and public debts. the object is the injury of an enemy, and to retaliate for injuries. again: if we go to war with great britain, it is probable we shall be involved with her allies, then will it be said, that we shall confiscate what the dutch lent us at a time of distress or since the peace. the dutch have bought largely in our funds. the same principle will lead us to lay our hands upon that property. it will be difficult to draw a line, if we admit the principle. under these impressions, if called upon to give his vote, he should now feel much embarrassment. it had been said that the adoption of the present resolutions would be a means of obliging great britain to do us justice; that it would strike a terror among the subjects of that country, and make them clamorous for peace. it might, he feared, have a very different effect exasperate them, and unite the people with the government against us. some further forbearance on our part may separate them. it will convince the people of great britain that we really wish for peace, and then, if war is the issue, the impression will be severely felt by that government. we shall render the administration very unpopular, and hasten its dismission for one more friendly to this country. he was of opinion this crisis was fast approaching. he concluded by again adverting to his propositions for preventing the transfer of british debts, which he hoped would be considered as a sufficient provision in the present exigency, and would give time to deliberate on further measures, and to watch the course of events in europe, which, he believed, would have great influence upon the conduct of great britain towards us, and probably bring forward the change in the administration of great britain. the committee now rose and reported progress. friday, march . _sequestration of british debts._ the house resolved itself into a committee of the whole on the state of the union, and took up mr. dayton's resolutions for the sequestration of debts due to british subjects. mr. giles commenced his remarks by observing, that he had intended to have given a silent vote upon this question before the committee, and probably should not have altered that intention, if it had not been from the solicitous requests expressed yesterday by several gentlemen in the opposition, that the favorers of the proposed measure should furnish the committee with the reasons upon which it was founded. although it appeared to him to be rather unreasonable that some gentlemen should be expected, not only to possess reasons for their own opinions, but to furnish reasons for others; and, although he did not conceive that the favorers of the measure were under any obligation to disclose the reasons inducing it, provided they thought proper to hazard its fate upon a silent vote, yet he was willing to indulge the gentlemen with presenting to them the general course of reflection which the subject had produced in his mind, and which had strongly suggested its propriety. he had, however, a more powerful inducement to disclosing his opinion, since the subject has become matter of discussion and its propriety doubted. the measure is deemed a bold one, and pregnant with the most serious consequences; in all such cases, he was desirous that his responsibility to the united states in general, and to his immediate constituents in particular, would at all times be tested by the real motives which should influence his conduct. several gentlemen in the opposition had earnestly admonished the committee against the indulgence of their passions upon this subject, and recommended the exercise of cool and deliberate reasoning. he should not pretend to say how far such an admonition was necessary, or justified by the temper of the committee, but he believed it applied as strongly to the gentlemen who suggested the caution, as to those to whom it was addressed; and he hoped, in the course of the future discussion, the gentlemen would show an example in themselves of the precepts they had prescribed to others. as to himself, mr. g. declared that, impressed with the awfulness of the present crisis, he had never reflected upon a subject with more coolness; and, if he understood his own situation, his mind was never in a state more susceptible of conviction. the proposed measure is expected to eventuate in a final explanation of the relative state of things between the united states and great britain. it will probably result, therefore, in an open hostility, with the usual appeal to arms, or in a peace, with all the rights of neutrality attached to it. for this purpose, the resolution proposes a sequestration of the debts due to the subjects of great britain, to be held as a pledge for the indemnification of the losses sustained by american citizens under the orders of the british king, in contravention of the laws of nations, and violation of every rule of morality and justice. in the course of debate, this subject seems to have resolved itself into two questions. first, as it respects the right of one nation to sequester the property of the individuals of another in any possible case. second, the policy of exercising this right at this time, under the existing circumstances of the united states. he presumed that a state of things might exist between two nations in which reprisal would not only become the right but the duty to the nation sustaining the wrong. this happens where one nation, without cause, forcibly seizes upon the effects of another, or of its citizens, and withholds them without restitution or compensation, and when the nation, whose effects shall be so seized and detained, shall possess no other means of indemnification. the right of reprisal in the injured nation, in such a case, grows out of its injury sustained, and its inability to redress itself in any other way. the duty of the injured nation to make reprisals, is founded on self-preservation; and in case of the losses of its citizens, upon the promise of the protection of property sacredly made by the nation to its individual members. this he believed to be the doctrine of the laws of morality and reason, and he knew it to be the doctrine of the laws of nations, which were, in fact, nothing more than the laws of morality and reason systematized and reduced to writing. believing this principle to be a just one, he would apply it to the existing state of things between the united states and great britain. almost as soon as great britain had taken part in the iniquitous war against france, the executive of the united states manifested their regard for peace, by proclaiming their existing state of neutrality, and recommending to their citizens, not only the observance of neutrality, but of impartial neutrality--although the partiality of the american people for the cause of france was well known--although, at that moment, their affections for the french nation were addressed by the most honorable and powerful considerations that ever existed between two nations. the peculiar similarity between the existing french cause and that which had just given birth to american liberty and independence; the material agency which the french nation had exerted in bringing about that event; and the existing principles of government here, the product of the revolution, which are the great object of attack by the combination against france. a pure and laudable regard for peace, and a detestation of war, however, had overcome all these sensations, and produced a neutrality, which he believed, on the part of the united states, had been rigidly observed; at least, he was sure, that such was the intention of government. in this state of things, great britain commenced an attack upon this state of neutrality, which it was certainly her interest to preserve, and which she ought to have deemed a favor to obtain. great britain continued to keep possession of posts upon the acknowledged territory of the united states, to carry on a contraband trade with our savage enemy. she, shortly after our proclaimed neutrality, proceeded to interrupt our lawful trade with our allies. she seized, condemned, and sanctioned the complete transfer of the property of american citizens to her own subjects; and, as if there could be no limits to her iniquity and resentment, she has contrived to open upon our eastern frontiers a barbarous enemy to aid in making depredations upon our commerce. these acts constitute injuries which amount to war, and they are infinitely aggravated, both by the perfidy which attended the execution of some of them, and the total want of provocation for the commission of any of them. if, then, great britain shall have committed acts towards the united states which furnish just cause of war, the united states possess the right, consistently with the laws of nations, to exercise any act towards great britain which would be justifiable in a state of war. the united states having received the injuries, are authorized to select such measures and means as they may deem the most expedient for self-preservation and indemnification. reprisal is within their power. all other means of redress are without their power. in such a state of things, reprisal is a right--reprisal is a duty. an objection, more plausible than solid, has been made to this course of reasoning, that the individuals who will be the immediate objects of the reprisal, have not been the immediate agents of the aggression. the laws of nations state, that the property of individuals is as much a subject of reprisal as the property of the aggressing nation; but, as the nation is the immediate agent in the wrong, the individual who sustains an injury thereby, becomes entitled to recompense from his nation. the nation which commits the wrong, by this process, will ultimately sustain the loss. hence, in the present case, the innocent and unsuspecting victims of the united states, have received losses from the lawless aggressions of great britain, and the question is, whether they shall finally sustain those losses, without any clear claim of indemnification upon the government of the united states? or, whether the losses shall be transferred to british subjects, who will thereby possess the clearest claim for recompense from the british government? he thought the laws of god, the laws of morality, the laws of reason, the laws of nations, would all pronounce that the british government which had done the wrong, should afford the recompense. mr. g. said, that if the losses were to be ultimately borne by the individual subjects of great britain, the remedy would seem to be a harsh one; but, even in that case, the only alternatives left to the united states would be to say whether their own citizens, to whom they have promised protection, should finally sustain the losses, or the british subjects, to whom they have promised no protection. but the situation of the individuals who may be the subjects of reprisal, is greatly meliorated, by the consideration of their just claim to recompense from their own government, which he had no doubt but they would ultimately obtain, if they were put into a situation to demand it; but if they should ultimately be denied justice, it would be a consolation to reflect, that it was the injustice of their own government, not of the united states. he observed, that a reprisal in the way proposed, stood upon the same ground as the invasion of the property in every other case did, and was justified upon the same principle, to wit, self-preservation. he presumed, if there existed an acknowledged state of war, letters of marque and reprisal, commissions to privateers, &c., would be deemed justifiable and expedient, and that no discrimination would be made between the property of individuals and the property of the nation; yet the invasion of the rights of property in that case would be as palpable as in the case of the reprisal proposed, with this aggravation; that, in that case, the individual sustaining the loss would not be entitled to ultimate recompense from the government--in the case proposed, he would be entitled to recompense. he observed, that the british nation had not discovered this delicate discrimination between national and individual property, in their late instructions given to their privateers and ships of war, although they had sustained no wrong; and he thought their conduct an example in point for the united states, who had received the injury and committed none. a gentleman (mr. smith, of south carolina) yesterday attempted to make a distinction between vessels at sea and other property; although he acknowledged that, at the first blush, he could discern no distinction in principle. mr. g. said, that every species of property stood on the same principle--the promise made by the government to afford protection to all property--the same rights are attached to every species of property, and the government is bound to afford an equal security to all. a sentence read yesterday, by a gentleman, (mr. s. smith), from a writer upon the laws of nations, clearly shows the right of a nation to make reprisal upon all the effects of individuals of an aggressing nation indiscriminately, except stock in the public funds; which has been exempted, under the idea of its being a pledge in the hands of government; the withholding of which would be a breach of public faith. he believed that the practice and policy of some nations might have given rise to this distinction, but he doubted whether the practice had been uniform and universal, and he was clear that there was no rational distinction in principle. the idea that the public funds are a pledge in the hands of government, and ought not, therefore, to be touched, is equally applicable to every other species of property. in the case of contracts between individuals, the government guarantees the performance upon the refusal of one party to pay, or comply. in the case of lands or personal chattels, the government guarantees the exclusive enjoyment to the proprietor; it would be equally a violation of faith for the government to deny its obligation in the one case as in the other, and nothing could justify an invasion of the rights of property, in any case, but self-preservation--the first of all rights, and the highest of all duties. he positively denied that any pre-eminence was due to one species of property over another. he said, however, that this discussion was not immediately necessary, as the resolution under consideration did not embrace the stock in the funds of the united states. mr. g. observed, that it had been said, and repeated in the committee, that the proposed measure was war. he denied that the measure in itself was war, or that it furnished a just cause of war. he believed, however, that it was problematical whether it would eventuate in peace or war; indeed, he remarked, that the crisis of affairs is already such, that, whether the measure be adopted or not, he viewed war as a probable event, peace as a possible event; but the point he contended for was, that if the aggressions towards the united states be sufficient to justify reprisal, the exercise of the right does not furnish a just cause of war. the exercise of a right by one nation can never involve the absurd consequence of giving another nation the right to exercise a wrong. he said, that gentlemen on one side of this question seemed to act upon an imaginary, instead of the real, state of things. he was not, therefore, astonished at hearing the committee cautioned against the violation of neutrality. he did not conceive that the present state of things between the united states and great britain would justify the use of the term neutrality. neutrality is a term used to signify the relation in which two nations stand towards each other. neutrality, therefore, requires parties--either party may destroy the relation between the parties. it therefore appeared absurd to him to say that great britain was in a state of depredation and war towards the united states, and the united states in a state of neutrality towards great britain. it has been said, that the united states have not abandoned their neutrality; this is true, but it is no evidence that neutrality exists. great britain has abandoned it for them. he said, however, that this was disregarding the substance and entering into a mere cavil about names. it was not material, in his opinion, what name ought to be given to the existing relation of things between the united states and great britain--whether it was called a state of peace, a state of war, a state of neutrality, a state of reprisal, a state of retortion, or a state of very uncivil conduct on the part of great britain. nor did he conceive it material to ascertain whether there was any intermediate stage between a state of peace and a state of war, or in which state the depredations of great britain should technically be classed; but one thing was certain and material--that the united states had sustained substantial wrongs, which required a substantial remedy. gentlemen who have regarded names and disregarded substances have also been extremely alarmed at the idea of a discrimination of conduct by the united states towards foreign nations. a gentleman (mr. boudinot) observed yesterday, that the united states had sustained injuries from france and spain as well as great britain, and asked why there should be any discrimination in their favor? mr. g. said he was extremely hurt that the conduct of france should be so unnecessarily and inopportunely arraigned in that house. he submitted it to the gentleman to say, if the united states should be compelled to enter into the war, which was at this moment not an improbable event, why then it would be wise to irritate the only nation in the world who could afford them any substantial assistance! he said that this conduct was the less justifiable, from the recollection that the conduct of france was the result of necessity, and there was every reason to conclude that the conduct of that nation would be explained in a satisfactory manner. but a consideration mentioned by a gentleman, (mr. smith, of maryland,) yesterday, was a conclusive answer--the united states owe to france a pecuniary obligation, as well as one of a more sacred nature. this is at all times sufficient for their indemnification. with respect to spain, if the gentleman would show the injury sustained, and point out a fund for indemnification, mr. g. declared he would not hesitate a moment to apply it to that object. but will the gentleman conclude, that because one nation has injured us, in a degree against which we have no redress, that therefore we shall not indemnify ourselves from a nation which has injured us in the extreme, and against which we have the most ample redress? he believed the gentleman's coolness, his wisdom, and his deliberation, could not possibly lead him to such a result. with respect to discrimination in the conduct of the united states towards foreign nations, it necessarily grew out of the character of the conduct of other nations towards the united states. some gentlemen appeared to him to have carried their ideas upon this subject to the most fanciful absurdities. to keep france out of the comparison, let this indiscriminate conduct, so much applauded, be applied to great britain and holland. great britain destroys our trade, plunders our property, and, to her injuries, adds insult and contempt. holland, engaged in the same cause, fosters our trade, and respects us as a nation. under these circumstances, do gentlemen contend that an indiscriminate conduct is due to great britain and to holland? or do they mean to carry this delicate indiscriminate conduct so far as to refuse to themselves all redress from one nation, because they would wish to deal out the same conduct to all others, whether they had offended or not? he said, that discrimination was stamped in the front of the conduct of foreign nations towards us, and to make an indiscriminate return would be the worst and most unjust of all discriminations. he hoped gentlemen would pardon him, but he could not help thinking that they had carried their ideas upon this subject to the most fanciful absurdities. a gentleman (mr. smith, of south carolina) yesterday remarked, that of late the condition of war had been much ameliorated as it regards the rights of property, and he thought the amelioration ought to be extended rather than abridged. mr. g. declared, that he heartily joined him in his wishes that the condition of war would ere long be ameliorated, both as it regards property and persons. he hoped that mankind would soon learn more wisdom than to butcher each other for the amusement or security of the privileged orders of the world. from that source he believed all wars arose, and until the cause was banished from the earth, he feared the fatal effects resulting from it would continue to exist. he declared, that he should view the banishment of the privileged orders from the world as the surest harbinger of the approach of the millennium. but this is not the happy period of the world; for, although the united states are free from this pest of the human species in their internal organization, yet the evils they at this moment experience arise from their external intercourse with that part of the world which is less fortunate. the attack made on the united states at this moment, is an attack upon property. if there should be a war between the united states and great britain, it will be a war of property. unless there should be a species of madness in the nation not to be calculated upon, they cannot think of invasion and subjugation. it is known that the united states cannot make an attack upon great britain, and territory and conquest with them are no objects. hence the war will be confined to depredations upon property. this is the most dishonorable species of warfare, and therefore the more to be regretted. there is this obvious distinction, however, between the united states and great britain. with great britain, at least with the privileged orders, it is matter of choice; with the united states, it is matter of compulsion. the united states despise this mode of warfare; they covet not the property of any nation upon earth, but self-preservation demands it. they are under the strong hand of a powerful nation, despising their rights, and regardless of justice. in this state of things, there is but little hope of strengthening the sacred ties of property; for, in the example of great britain, her late conduct can furnish no consolation for these theoretic speculations; and however the united states might be inclined to practise upon them, yet the british depredations will forbid them--for submission will be an invitation to new acts of aggression. he most ardently wished the state of things were otherwise; but, exposed to these inconveniences, the most effectual means ought to be adopted for their resistance. mr. g. proceeded to observe, that having shown the right of reprisal to be conformable to the laws of nations, and clearly justified by the existing relation of things between the united states and great britain, he would now submit a few remarks upon the policy of exercising the right at this time. under the existing circumstances of the united states, he thought the policy of the measure was recommended by the clearest and most obvious principles. the relation of things between the united states and great britain is such as to demand a final and unequivocal explanation, whether the proposed measure be adopted or not. in all parts of this committee, in all parts of the united states, a definitive explanation is called for. the present state of things between the two nations cannot long exist. it is to be hoped that, the tone of language to be used by the united states will be adjusted to the nature of the injuries they have sustained. acquiescence and submission are no longer recommended. hence, matters are already reduced to extremities, and all the irritations already exist which can grow out of an extreme state of things. the proposed measure can add nothing to these irritations. the question, therefore, appears to be reduced to this--whether, in demanding an explanation and attempting negotiation, we shall use all the means in our power to compel a favorable issue? or whether we shall tamely supplicate for justice, and suffer the most effectual means of compulsion to elude our grasp? he did not mean here to recapitulate the conduct of great britain towards us; he hoped it was sufficiently impressed upon the mind of every gentleman in the committee; but, after the recent experience of her conduct, it would be madness, it would be folly, to address our complaints to her justice or moderation. he thought it would be wise to lay hold of every thing in our power, and hold it as a pledge for her good behavior. this measure would put us in the best possible situation for negotiation. it would authorize an appeal to her interest, which she could not resist. he begged the committee to reflect upon the argument which had been used here, to prevent a late measure which had been adopted, and which had been renewed upon the present resolution, that a great value in property, belonging to the citizens of the united states, was in the power of the british, and that any counteracting measures would place it in extreme hazard. this seemed to him to have been the most prevailing argument which had been urged, and for some time was irresistible. if, then, the argument shall have been applied with so much force here, with how much more force will it be applied in great britain, when they find that the property of the individuals of that nation is placed in jeopardy here, and that it greatly exceeds in value the whole of the property which they have infamously detained and condemned? besides, if, in the event of a war, it should be a war of property, as is every where contemplated. great britain will find that the war will be commenced upon very unequal terms. viewing this measure, therefore, as to its probable tendency to peace or war, he thought the probability greatly in favor of its producing peace. when great britain shall find that she is entering into a contest upon unequal terms, when she shall find that it may terminate in a permanent loss of the advantages of her commerce with the united states, when she shall see before her a precipice, into which if she should once enter she never can return, she would pause before she acted, she would take time to count the probable loss and gain, and peace would be the infallible consequence of such deliberate calculations. this measure will convince great britain that the united states possess a knowledge of their rights, a confidence in their ability, and a determination in their disposition to assert and support them. a gentleman (mr. smith, of south carolina) observed yesterday, that a pacific system would probably attach the people of great britain to the united states, and detach them from their own government. the gentleman ought to recollect, that a pusillanimous conduct will not. it is with nations as it is with individuals--to be respected by others, they should respect themselves. the same gentleman remarked, that a change of ministry might be expected, and advised waiting for the event. the idea is as undignified as it is chimerical. mr. g. said, he knew nothing of the change of the ministry--the principle was unknown here. the people here were their own governors. it was immaterial to them who the minister was. even in the country where the people were less fortunate, where ministers govern, a change of ministers never produced any solid advantage to the nation. it was merely an expedient of the moment, to smother a popular clamor. but, even proceeding upon the gentleman's hypothesis, which mr. g. thought wholly inadmissible, he submitted to the gentleman to determine, whether a positive submission by foreigners to the avaricious regulations of a minister, be the most likely mean to render him unpopular at home? on the other hand, whether it was not the most effectual mean of preserving his popularity, and of keeping him in office? he presumed the people at home would never complain of injuries abroad, if those who sustained them refused to complain. it is but by resistance, and throwing the burden upon the people of england, that they can be brought to complain. but, in cases of such extremities as the present, all appeals to the people of england are futile and degrading. our only resource should be in our own exertions. they would be abundantly sufficient, if we could be brought to believe it. mr. g. remarked, that the people of ireland had lately afforded an instructing lesson upon this point. they had arms in their hands for the purpose of asserting their rights; under the idea of acquiescence and submission they had surrendered them to the government; perhaps, under the expectation of a change of ministry. did this act of submission render them more respectable in the eyes of the people of england? did it encourage the hopes of those who wished the establishment of government upon the principle of equal rights? did it not rivet the chains upon the people of england? did it render the people of ireland more respectable in the eyes of the people of the united states? to these questions it was unnecessary to give an answer. the people of ireland reaped the usual merits of submission--imposition and insult. there was another consideration strongly in favor of the policy of the proposed measure. applications have been already made from different parts of the united states by the immediate sufferers from the british depreciations, for an indemnification of their losses. these applications will, probably, be increased, repeated, and continued; the agricultural and other interests of the united states will, probably, never consent to equalize this burden. the claims of the sufferers upon the government will gain additional weight, unless this fund should be offered to them for their indemnification. this is the obvious, the natural and the rightful fund for their indemnification; and he thought it was, at least, the duty of the government to hold it as a pledge for their security. if this measure should not now be adopted, the refusal will lay a foundation for further parties in the united states, which may ultimately have a serious effect upon the government. an objection, of a very delicate and influential nature, has been made to the proposed measure, which required some consideration--that it would affect the character and credit of the government. he had viewed this objection with the most deliberate attention, and felt the whole force of its imposing delicacy; but was at length perfectly satisfied that it was unfounded. this objection relates rather to the right than the policy of the united states to adopt the measure. if the united states possesses the right of reprisal upon an honest and sound interpretation of the laws of nations; if the conduct of great britain towards the united states be sufficient to justify the excess of the right, he believed the policy of exercising the right could never tarnish the american character, nor lessen the credit of american citizens hereafter. the world of nations, as well as individuals, will easily see, that it was a measure of compulsion, not of choice; that, although the united states believed, they regretted the necessity; that they were not the authors of the original wrongs; that they had borne them with patience, had used their endeavors to prevent the commission of them; and that, when these wrongs were committed and repeated, the united states possessed no other means of redress. under these circumstances, in the exercise of a substantial right, he did not believe there could flow any consequential wrong. the motive would be looked at, and it would furnish a complete exoneration from blame, whilst the original aggressors would become justly responsible for all the consequences. mr. g. said, he could not sit down without making some remarks upon the fruits of the conduct heretofore observed by the united states. the most pacific system has heretofore marked the character of the government. all america looked upon the late proclamation of neutrality as a competent guarantee for peace. he had no doubt but that it was dictated by the purest regard for peace. but what have been the fruits of it? he did not mean to condemn the conduct of the executive. perhaps it was suggested by the then existing state of things. he only intended to show, that it had not met with the return it merited, and which was reasonably expected from it. it has not produced peace. a regard for peace has been construed into a fear of war. a resistance of the feelings of the people for the cause of france has been a palatable food for british arrogance and presumption. submission to aggression has invited new aggressions; appeals for justice have been deemed testimonies of debility, till at length the united states, after having been stripped of their citizens and property, are upon the eve of a war, because they have not exerted their rights at an earlier period. if this conduct should have been heretofore wise and pacific, experience has taught us that it is no longer so; nothing can be expected from the justice, the honor, or the moderation of a court which has proved itself equally a stranger to them all; but, before such a tribunal, acquiescence will beget injuries, injuries will beget insults, and insults will beget contempt, degradation, and war. mr. swift remarked that, on the first view of the subject, he had been inclined to favor the proposition, not having attended minutely to the distinction made by the laws of nations respecting the property of an enemy liable to reprisal; but on a full investigation of the subject, and mature deliberation, he was convinced that the proposition under consideration would be a direct and manifest violation of the laws of nations; he was, therefore, clearly and decidedly opposed to its adoption. gentlemen have said much respecting the insults and the injuries which we have received from the british nation; but mr. s. conceived it to be unnecessary that gentlemen should describe their insults and injuries in the highest colors to inflame our passions, and to animate our resentment. he believed that every gentleman in the committee deeply felt the indignity which had been offered to their country, and was convinced that great britain had been guilty of a violation of the laws of nations; but, under such circumstances, it was our duty to conduct with coolness, candor, and moderation. he thought that the heat and passion which had been manifested in the course of the debate were inconsistent with that dignity and propriety which ought to mark the deliberations of the legislature. mr. s. observed, that the conduct of the british court in regard to their concealing in such a singular manner the order of the th of november, and the equivocal terms in which it was expressed, was greatly to their dishonor. but he thought that the words _legal adjudication_, would fairly admit of a construction that no american vessel that should be taken pursuant to that order, could be liable to be condemned, unless warranted by the laws of nations. there was reason to apprehend that such was the intention of the british cabinet; and that the courts of admiralty in the west indies, in their condemnations, had exceeded their jurisdiction, and contradicted the design of the court of london. recent intelligence confirmed the idea. no information of these illegal transactions had yet been communicated to them. it was possible that when that court were made acquainted with the injuries we had sustained that they would award restitution or compensation. mr. s. remarked that, by the laws of nations, no nation had a right to make reprisal for any injury till all other means of obtaining justice had failed; that it was our duty in the first place to represent to the court of great britain the spoliations that had been made on our commerce by the illegal condemnation of our vessels; that, till we had done this, the laws of nations would not warrant us to make reprisals on the goods and effects of the british nation. that there was a possibility of obtaining a satisfactory explanation of their conduct and reparation for the injuries we had suffered. it was, therefore, a proper subject of negotiation. but, he said, if that nation will not do us justice, then we are authorized to make reprisals. mr. s. then observed that, when we had taken such steps as would authorize reprisal, we should be precluded by the laws of nations from adopting the proposition under consideration. he said that a gentleman from maryland (mr. mercer) had yesterday asserted that _burlamaqui_ was the only authority among the writers on the laws of nations against the measure; and that the opinion of _vattel_ was in favor of it. another gentleman from maryland (mr. smith) had read a passage from _vattel_, which he considered as an authority in point, to justify the seizing of private debts; but not debts due from the public. but if these gentlemen had thoroughly examined _vattel_, they would have found, instead of his being an authority in their favor, he had in the most direct terms maintained a contrary opinion. he then read a passage from _vattel_, that showed that the effects of an enemy in a country at the time of a declaration of war cannot be seized, but that the owner is entitled to a reasonable time to remove them; and another passage, which expressly declared that, by the usage and custom of modern nations, public and private debts are not the subject of reprisal. mr. s. conceived that these rules were founded in the highest wisdom; that all debts were contracted under a sanction of public faith, and an understanding that a war should not render them liable to seizure or confiscation; that a moral obligation existed between the contracting parties for the payment of the debts; and that no government could ever have a right to violate a moral obligation. that, therefore, by the law of nations in all instances where property comes into the possession of a nation by a confidence reposed in their honor and faith, as in case of public or private debts, such property can never be the subject of reprisal, because this would be to authorize a breach of public faith; but reprisals are always to be made on property in possession of the nation who has done the injury, and which may be taken without any violation of those principles, which ought to be held sacred in time of war. mr. s. remarked, that it had been suggested that the british nation had been guilty of a violation of the laws of nations in their treatment of us; and that, therefore, we were not bound to govern ourselves by that law in our conduct towards them. this argument, however plausible, he said, would not bear the test of examination; that all reprisals were justified only on the principle that the nation on whom reprisal is made has been guilty of a previous violation of the laws of nations. when a nation disregards that general law by which the conduct of all independent communities towards each other is to be regulated, the same law points out the mode of redress. if there has been no violation of that law, there can be no reprisal. if there has been a violation, then the reprisal must be pursuant to the law, for it is the highest absurdity to say, that because there has been an infraction of a law which authorizes a certain mode of redress, that we may pursue a different mode of redress in violation of the law which gives us the right. this would be at once to renounce the whole system of the laws of nations, and throw mankind back into a state of savage barbarity and ferocity. mr. s. then adverted to the policy of the measure. he said, upon a fair calculation, it would be found that the adoption of the proposition would be productive of far greater injury to this country than the amount of the losses sustained by our citizens in consequence of the spoliations committed upon our commerce. it is evident that this country, even admitting that a war should take place, would wish to renew their commercial connection with great britain. but if, in contempt of the law of nations, we seize on private debts, we shall for ever forfeit all credit; no trust can be reposed in our citizens, and no faith in our government. no foreign merchants will ever deal on credit with our citizens, from a well-guarded apprehension that, in case of a war between the countries, the sacred nature of private contracts will not protect them against the hand of a government which has exhibited the example of a deliberate violation of the laws of nations. when we consider the immense advantages that can be derived from private credit and national honor, it will be easy to imagine the infinite mischief that must result from a disregard of those principles. mr. s. objected to the measure on the ground that he considered it to be a declaration of war; and he did not think that the circumstances required or justified our taking that step. he said that notwithstanding the unwarrantable proceedings of the british nation; yet, no act had been done by the british court that clearly indicated an intention to make war directly upon us, or that could be considered as direct and intentional war, though we might consider many of their acts as just causes of making war on our part. the revocation of the order of the th of november, the new instructions of the th of january, and the explanation given to the merchants of london, clearly evidenced that a war might be avoided with that nation. while there was the remotest possibility of preserving our peace we ought not to do an act which might endanger a war. while then the conduct of the british cabinet would admit of an explanation, while there was a prospect that we might obtain by negotiation restitution of the property of our citizens or compensation for the losses they had sustained, we ought to pursue that mode; but if we proceeded to make reprisals by adopting an illegal measure, it must certainly be deemed a declaration of war. the omission of the regular means of obtaining satisfaction by negotiation, and an unwarrantable mode of reprisal, would certainly be just causes of war. if we must be driven into a war, it would be of the highest advantage to us to conduct it in such a manner as to convince the people of great britain that we sincerely wished to avoid it, and that the unjust and illegal proceedings of their own court have been the sole cause of the war. in such a case we have reason to think, that so great is the interest of that nation in preserving our commercial connection, that a powerful party will be formed in our favor to oppose the injustice of the government. the sentiments of the people will be against the war, and the court will find it extremely difficult to maintain it under such circumstances. but if, without demanding an explanation, we proceed to adopt rash, violent, and unwarrantable measures, the spirit of the nation will rise against us, and the people will join the court in prosecuting a war which will be then deemed just and necessary. mr. s. then observed that we ought to take into consideration the present situation of europe; that the late successes of the french nation had materially changed the political prospect. it was possible that these successes had been the cause which had produced an alteration in the views of the british court. if events had happened which had rendered the disposition of that nation less unfriendly and hostile, we ought to take advantage of that circumstance, and not do any thing to check the progress of that favorable disposition. he most sincerely hoped that these successes would convince the combined powers of the impossibility to conquer france, and produce a general pacification. while such were the prospects, he ardently wished that a measure repugnant to the principles of common honesty and common justice might be rejected; and he hoped that no gentleman in the committee would vote in favor of a proposition which would fix an indelible stigma on our national character. the committee now rose, and had leave to sit again. thursday, april . _non-intercourse with great britain._ the house again resolved itself into a committee of the whole house, on the motion of the th instant, to prohibit all commercial intercourse between the citizens of the united states and the subjects of the king of great britain, so far as the same respects articles of the growth or manufacture of great britain or ireland. mr. sedgwick said he was sorry to rise, unprepared as he was, as he had yesterday occupied as great a portion of the time of the committee as perhaps he was entitled to. he had hoped some other gentleman would have risen, who, having better arranged his ideas than himself, had a preferable claim to the attention of the committee. unprepared as he was, he could not permit a question so important as that under consideration to pass, without entering against it his solemn protest: a question involving the dearest interests of our country, and threatening to exchange the unexampled prosperity it had for some years enjoyed, for all the horrors of war. he said he the more regretted the part he was obliged to take on this occasion, because he feared he should, in his vote, divide from many gentlemen whom he much respected; but as his opinion had been formed on mature deliberation, neither his honor, his conscience, nor the duty he owed to his country, would permit him to be silent. if the evils he foresaw should result from the measure under consideration, he wished it might be known that no part of them could with justice be imputed to him as their author. if, therefore, he should be so unfortunate as to stand single and alone, he would not fail to oppose, as far as he could, the measure before the committee. that injuries unprovoked and inexcusable had been inflicted by great britain on this country, was acknowledged by all. no man felt stronger indignation than himself at the insults which had been offered to our country, and the wrongs which had been done to our citizens; no man was less disposed tamely to bear the haughty and unprovoked aggressions of any foreign nation; no man would go further to procure redress for our wounded honor, and indemnification for our injured citizens. if, after seeking reparation in the way dictated by prudence and humanity, happily prescribed by the modern usages of civilized nations and commanded by the principle of religion; if fair negotiation should be tried, and justice not obtained, he would then seek redress by the means which god and nature had given us. he remembered well the miseries and vices of war, a war in which he had taken a part. it was a war of honor and interest: he well remembered its circumstances and effects. he had lived to see the wastes of that war repaired; to see a state of order and security; to see his country progressing in all the means of happiness. no man who loved his country, and rejoiced in its prosperity, would consent, but from inevitable necessity, to see it again plunged in the horrors of war. although all combined in opinion that our injuries were great, that they must be redressed, yet no one had suggested that war should precede negotiation. respecting this, there was happily but one opinion. on every side of the house, it was acknowledged a duty indispensable in our present situation, to state our complaints of injuries to the authors of them, and to demand redress. we were only divided as to the manner of our application, and the circumstances under which our demand should be made. he had already, on another occasion, taken the liberty to declare his opinion of the line of conduct which was dictated by our present situation; that we should manifest that we are averse to war; but, should it become inevitable, we should encounter it with that undaunted spirit which became freemen, insulted in their honor and injured in their rights. he had the most perfect confidence in the bravery of our citizens. at the same time that he knew they would never surrender their rights, he was sensible that they would avoid, if possible, an unnecessary and wanton effusion of blood. gentlemen had disclaimed any intention to adopt any measures tending to war; they had said this measure had no tendency to such an event. this assertion he could not believe, because this measure contained a threat of inconvenience; and every threat of inconvenience was a cause of irritation, and every irritation between nations who had already differences to decide, undoubtedly tended to widen the breach, and of course to produce war. if gentlemen were sincere in their declarations, that all differences between america and great britain should be terminated by peaceable negotiation, (and he would not call their sincerity in question;) if great britain was proud, haughty, and insolent, as she had been repeatedly denominated, was it probable, he asked, that she would be more inclined to do us justice, by enlisting her pride and insolence against us? mr. s. said, that the late violences by which the property of our citizens had been plundered, were the immediate and avowed cause of the present measure; that as yet no representation of these injuries--no demand for compensation had been made; that such representation and demand should precede hostility was conceded by all. it only then remained to be considered, in what terms and manner such claim should be exhibited. in terms, he said, doubtless firm and decided; but if it was intended to produce the desired effect of peace, and to prevent hostility, the language should be decent and conciliatory. he called on gentlemen to show an instance, in modern times, where a nation complaining of injuries, but desirous of peace, had accompanied their demands of justice with threats of inconvenience? the opposite practice was universally established, and on the known principles of human nature. he appealed to the feelings of every honorable man in the committee, whether demands for justice and reparation for injuries were enforced by threats? whether repugnance to a compliance with such demands was not created by such means? if every man felt the operation of this principle, how much more powerful would it be on the minds of the governors of a nation styled proud and insolent? he said he would charge no man with an intention to involve this country in all the horrors and desolating scenes of war. he could not, however, help declaring, that war or amicable negotiation evidently must decide the controversies between america and great britain, and that were his mind determined on the former, he should recommend those measures which gentlemen had brought forward to the consideration of the house, as the most operative means of rendering the event certain, and of banishing every prospect of accommodation. to seize on british property, to confiscate or sequester british debts, to annihilate as far as in our power her commerce, to starve her manufacturers, and to humble her pride; these were infallible means of defeating negotiation, and of uniting, as one man, that nation against us, in all the views of her administration. it had been said, that a principal benefit to be expected from the institution of republican government was, that cool and temperate reflection would direct the conduct of nations. how far our conduct on this occasion had verified such an expectation, he wished gentlemen to reflect. he had himself fondly hoped, in the government of this country, to have seen these principles exemplified, and all intemperance of expression, and all the heat of passion, banished. it had been said, that a statesman should be all intellect: never, surely, was a time or a country, which more required than the present time, and by this country, the exercise of cool temper, to the exclusion of passion, to conduct with safety the political machine through surrounding dangers. he well remembered a former non-importation agreement; he remembered, too, its effects: they were such as might have been expected; they were such as to convince every cool and considerate man, that the measure itself was impolitic and unwise. it immediately raised the price of all articles of importation to an exorbitant and extravagant height. hence it was immediately beneficial to importers and shopkeepers, and hence it may be easy to understand why this measure was said to be so popular in philadelphia and other great towns. but as the representatives of the whole people of america, the legislature ought to reflect, that in proportion as this measure would operate beneficially to the dealers in imported commodities, it would become burdensome and oppressive to those who are best entitled to our regard--the substantial yeomanry of the country--on whom we must principally depend for support, in the arduous conflict which we had too much reason to apprehend. if we must eventually support our claims by arms, the more property we could import before the commencement of war, the more beneficial would it be. in that case, the most wise and prudent policy would be, that which would give the greatest extent to our credit; and, on the contrary, the most unwise and wretched, that which would tend to deprive our people of the ordinary means of supplies. if this system should prevail, were we to receive british productions through other countries? this would be injuring ourselves, without affecting great britain. was there any other country which could give us the same supplies we wanted? there certainly was none. were we to depend on ourselves alone, the inconvenience would be great, if not intolerable. what, he further asked, would become of our produce, in the event contemplated? without entering into a minute detail, he said, he would venture to pronounce that a great part of it would perish on our hands. it was, he said, doubtful, how far at any time the proposed system might go to distress great britain; but, at this time, it would afford facility to her in recruiting her fleets and armies. were manufacturers and laborers thrown out of employment, and thereby deprived of bread, they would be alike stimulated by want and despair to fight the battles of their country against those who had reduced them to necessity. in short, he saw nothing which should stimulate the legislature to adopt this measure, but passion without, and resentment within, these walls. he saw nothing in the system itself, as it respected great britain, but vain and ineffectual irritation; nothing in relation to our own country, but defeat, wretchedness, and want. he said he had taken the liberty to suggest to the committee certain constitutional considerations. the answers which had been given had been by no means satisfactory. it was incumbent on gentlemen who had so frequently warned us of the danger of usurping power--who had so frequently, and in language so animated, charged us to avoid grasping power, by implication and construction; it was incumbent on those gentlemen, would they preserve consistency of character, clearly to demonstrate the authority which they assumed, that it might not be supposed that their construction of the constitution was a convenient accommodation to the existing circumstances. it was not now a question whether the people had made a wise or prudent distribution of the powers of their government: they had declared their will, and that will we were bound by every consideration of honor and duty to execute. in the instrument under which we acted, they had declared that the president, under certain modifications, should be their organ, to treat exclusively with foreign powers. this authority, thus exclusively delegated, includes all the terms on which a treaty could be formed. what was the present measure? prescribing the terms of treaty, and restraining the constitutional power from treating on any other terms. if the legislature could prescribe those terms, in this instance, it may then prescribe all the terms, in every instance; and of course control, in all things, the exercise of that power. to this reasoning two answers have been given; the one by a gentleman from pennsylvania, (mr. smilie,) that the legislature might make such a law, because the executive could repeal it. he really could not comprehend the force of the reasoning; he was glad, however he could, with perfect confidence, contradict the assertion, which he was sure would be a very disgusting one to the people of america. there was, in fact, in no instance, an authority given to the executive to repeal a constitutional act of the legislature. the other answer was that given by a gentleman from virginia, (mr. nicholas,) that there could be no objection to the exercise of this power, if it should be assented to by the president and senate. this was a still more extraordinary and unsatisfactory answer than the other. it implied that the president and senate could make grants of power to this house not contained in the constitution. to this he would answer, that all the powers which the house could legally exercise, were expressed in the instrument under which we acted; that those powers could be neither enlarged nor abridged, by any man or body of men on earth, but in the way pointed out by the instrument itself. mr. s. said these considerations he had expressed without any previous preparation, as they occurred to his mind. should gentlemen who viewed the subject in the light he did remain silent, he would, in the further progress of this measure, he pledged himself, with more orderly arrangement, and he hoped with more perspicuity and force, address himself to the consideration of this committee, or of the house. it would avail little to tell him that his opposition would be unpopular; no man more than himself wished the good opinion of his countrymen, but no personal inconvenience, no loss of fame or popular affection, should ever induce him to see his country threatened with evils incalculable in number and duration, without warning her of her danger; a country which he loved, and which he might, on this occasion, be permitted to say, he had long served with honest fidelity, and without a single instance of sinister or mere personal regard. the committee now rose, and had leave to sit again. friday, april . _non-intercourse with great britain._ the house again resolved itself into a committee of the whole house on the motion of the th instant, to prohibit all commercial intercourse between the citizens of the united states and the subjects of the king of great britain, so far as the same respects articles of the growth or manufacture of great britain or ireland. mr. boudinot first rose this day, and said: mr. chairman, in a question of so much national importance, there needed no apology from any member of the committee for claiming their attention, while he gave the reasons for his vote. the impatience shown by his colleague, (mr. clark,) or any other gentleman, for the question, ought not to influence any member of the committee. when the fate of a nation of as much consequence as the united states, appeared to be suspended on a vote, the least to be expected from gentlemen was, to act with freedom, deliberation and independence. he supposed he should be among those who, at the taking of the question, would probably be found in the minority. that this would be his vote, if he was convinced that he should be single and alone. he felt himself deeply and seriously affected with a view of the precipice on which, in his apprehension, his country seemed to stand, and he wished, for his own part, to take a full and deliberate view of it, before he joined in precipitating a leap, that might not add to her safety or happiness. reasoning and not declamation should be expected from gentlemen in favor of the measure under consideration. he said, he would address himself to the judgments, and not to the passions of the committee. he acknowledged it might fall to his lot to mistake the true and essential interests of his country; but, if this should be the case, he had the satisfaction of knowing that it would arise from the most honest and upright intentions. it was, therefore, on these principles, that he should proceed in giving his opinion on the important resolution on the table. but, before he went further, he could not forget the respectful compliment paid yesterday by his honorable friend from maryland (mr. smith) to his moderation and gray hairs; indeed, he should not have taken it to himself, as he had the honor of having white, instead of gray hairs, had not mr. s.'s attention been immediately fixed on him. if either age or moderation would command his worthy friend's close consideration of this subject, he besought him, as well as the other gentlemen of the committee, to join in attending to it calmly and seriously for a few moments, before the die was cast. he said, he owed much, on behalf of his country, to that gentleman for his services in the field during the late war, when both his zeal and his passions were rendered so eminently useful, that he could with pleasure apologize at all times for his warmth and animation on any subject when their common country was not to be affected. but would he permit him, earnestly, to request that, with other members, he would call to mind, that they were now the representatives of four millions of people? that perhaps the lives of thousands of their fellow-citizens were depending on a single vote. that the welfare of a country dearer to them than life was at stake. gentlemen must, therefore, agree, that the question was a serious one, and deserved to be treated with the most serious and deliberate consideration. judgment, and not resentment, should direct the final determination, let it be what it may, and give a sanction to all their measures. he observed, that gentlemen against the question had been accused of want of propriety, in looking calmly, and without the exercise of their passions, on the sufferings of the unhappy prisoners at algiers, and the piratical spoliations of our fellow-citizens in the west indies. yes, sir, said he, when he knew that it was neither passion nor declamation that could afford effective relief to these suffering members of the political body, he should continue to persist in that steady, serious, and deliberate line of conduct, that, in his estimation, was only calculated to produce that permanent and efficient aid and relief, which their extreme distress so loudly called for; but, in his turn, he asked gentlemen to give up their warmth on this occasion, that they might also reflect, even without passion, on the number of their fellow-citizens that must fall a sacrifice in the most successful war. will not gentlemen weigh well that vote, that may possibly increase the number of mourning widows and helpless orphans? these considerations had led him to consider the measure now proposed, as of great moment and importance, and to wish it might be reasoned on and considered in a manner becoming legislators and representatives of united america, who have been sent here as her counsellors and trustees, and to whom she has committed her best and most sacred interests. he said, for argument's sake, and to simplify the debate, lest he should be drawn into unnecessary disputation, he should concede for the present: the constitutionality of the resolution proposed; the right of the committee to originate and determine on the measure; the unprovoked aggressions of great britain to warrant and justify the prohibition. these arguments had been repeated and urged with great apparent force, by gentlemen in favor of the affirmative side of the question; but, were the principles arising from these facts sufficient to justify a determination in favor of so harsh and unprecedented a proceeding, without previously demanding an explanation and full indemnification, agreeably to the customs and usages of other nations? would arguments of this kind satisfy our constituents, if they should find themselves suddenly plunged into an expensive and ruinous war? would it not very naturally be asked, why were not the true interests of the united states under these existing circumstances carefully inquired into, and made the principal and leading object of attentive consideration? in his opinion, this should peculiarly be the sum of their present inquiry--was it not the duty of the committee critically to examine into the preparation they were in for a step, that, in the imagination of some gentlemen of character and reputation, at the last, might precipitate our country into an immediate war? were our ports and harbors in any tolerable state of defence? were our magazines and arsenals properly supplied? were our citizens in a state of organization as militia? in short, did not the measure threaten a sudden transition from a state of profound peace and happiness, unequalled by any nation, into a state of war and bloodshed, without taking those previous and prudent measures that might probably lead to an avoidance of this national evil, or at all events enable us to meet it with decision and effect? gentlemen had referred the committee to the conduct of america in , and the success of the late war has been urged for our encouragement. the non-importation agreement has been recurred to as a precedent in point. he said, he was well acquainted with most of the events of the late revolution. the first motions towards it, found him engaged in the common cause, and his best endeavors to complete and secure it had never since been wanting. he well remembered the consequences of the non-importation agreement, and the sufferings of our brave fellow-citizens from that imprudent measure. he had tracked them over the frozen ground by their blood, from the want of shoes, and was sensible that many had perished by the inclemency of the season, for want of tents and clothing: that agreement was universally reprobated, as a measure imprudently entered into on the principle of expecting to be involved in a war, which had it been then contemplated, nothing could have justified. mr. b. appealed to the knowledge of many men who heard him, that this agreement had often been urged to great britain, as a conclusive evidence, that at the time of its adoption, america had not the least intention of independence, or a separation from the mother country; otherwise, she could never have been guilty of so impolitic a resolution. he asked, then, if the committee would now repeat the mistake with their eyes open, and expose our country to the same misfortunes, and our fellow-citizens to a repetition of sufferings, by a measure that promised not one important advantage to the union that he had heard of? in the late war, america had all the ports and harbors of the other european nations open to her, but now circumstances would be altered; in case of a war the very reverse would be our position, excepting as to those of france. mr. b. confessed, that his arguments were founded on his conviction that the resolution was a measure that would necessarily produce war, immediate, inevitable war. his reasons were drawn from the present state of great britain, being in alliance with the principal powers of europe, and under treaties to make all wars, arising from the united opposition to france, a common cause. the necessity she would have of employing her supernumerary hands, if not in manufactures, in her armies and navies, to prevent trouble at home, added to her old grudge against us on account of principles that promise much trouble to all the monarchs of europe: her late conduct with regard to our trade, founded on the instructions of the th of june, and th november last: her withholding the posts, contrary to every principle of justice and good faith, and against the most positive assurances: and lastly, from the anxiety to regain the territory between the lakes and the mississippi;--he agreed that neither of these singly, nor even the whole together, could justify her in her own opinion, in making an open attack upon us, but might tempt her to construe the measure before the committee into an act of hostility on our part, as contrary to our professed neutrality. he said, it was a point conceded in the laws of nations, that granting to one of the belligerent powers advantages in your ports which were refused to another, was a breach of neutrality. the object with great britain would be, to convince her allies, that the aggression arose on account of the war with france, to prevail on them to make it a common cause; and in this they would not want plausible evidence. it was not sufficient, he alleged, that we knew ourselves innocent of the charge. we should be prudently careful not unnecessarily to give reason to justify the construction. if the previous steps of negotiation, used by all civilized nations, were neglected, they would have the advantage of the argument, and we should injure ourselves. he asked if any gentleman would say that a prohibition of commerce at the eve of a war, or even the apprehension of it, was wisely calculated to clothe an army, replenish our magazines, supply our arsenals, or provide a revenue by which to support a war? he wished every member had taken the trouble he had done, of looking into their stores, inquiring what was on hand, calculating what would be absolutely necessary, and reflecting seriously and dispassionately on the sources of supply. if they had, he doubted not but that they would find something more than passion and resentment necessary, to meet the probable consequences of so premature a determination. it was no uncommon thing for gentlemen to differ on important measures; and he would not even insinuate, that he might not be found wrong in these ideas, and wholly mistaken in his conjectures on this occasion, but he begged members to consider the different ground on which the two sides of the house stood. if the minority, of whom he expected to be one, should in the end be found to have been alarmed with consequences altogether unfounded, and that the issue proved successful to the peace of our common country, they would have the happiness of rejoicing with the majority in their superior wisdom and foresight; and though even they should suffer in character, yet their country would be saved. but if the minority should in the end be right, and our country should be deluged in a destructive war, and her best interests be endangered by the discovery of the mistake too late for redress, gentlemen in favor of the resolution, would seriously regret that they had not at least used more caution. he said, as at present advised, he should give his vote against the resolution. it would be from a thorough conviction, on the most careful examination, that the resolution was against the interest and welfare of the united states, all circumstances considered. and this he should do, wholly regardless of the malevolent insinuations, that britain had an influence in that house. he felt a conscious dignity of mind, a virtuous pride of heart, in believing that it was not all the wealth of that opulent nation could purchase his influence to a single measure injurious to his country; and under that conviction, he could not believe there was a member of the committee in a different predicament. he again repeated, that he should most sincerely rejoice, if this measure should be adopted, to find, in the end, that his mind had viewed it, as productive of consequences that were wholly unfounded; and, although under his present view of the subject, considering it as inimical to his country, he was bound in conscience to vote against it, yet the councils of america were directed by superior wisdom, and that this country had reaped the rich harvest of peace and happiness. but it might now be asked, if it was meant passively to submit to the injuries acknowledged on all hands to have been sustained by the imperious and overbearing conduct of great britain? he answered no, by no means. he would follow the examples and pursue the measures of other nations in like circumstances--examples and measures founded in policy and sound understanding. he would, by a special envoy, make known to that court our sense of her unwarrantable aggressions; he would demand immediate indemnification for the present, and security against future sufferings of the like nature--insist on a categorical answer, after applying to her justice and best interests; and if at last a war must be the only means of obtaining justice, he would then (being previously prepared) meet it as became a free and independent nation, trusting to the righteousness of her cause. by this means, the other nations of europe would be made acquainted with our complaints--become witnesses to our love of peace, and bear testimony to the justice of our appeal to arms. he said, he had fully considered the question--he had viewed it in every point of light--he had endeavored to consider the consequences which most probably would arise from it, and he could not convince his mind, that the measure would be productive of any good to the united states, while it offered many reasons to conclude, that it might be fraught with the greatest evil. in case of the most successful war, america had nothing to gain, while her loss of blood and treasure was sure and certain. he had once flattered himself that this was the only country on the globe, whose interest it was to be at peace with all the world, and at the same time the interest of all the world to be at peace with us. but he feared we had been so much actuated by a resentment of injuries received, as to lose sight of our true interests under existing circumstances, and, therefore, should be hurried into measures we might hereafter have reason seriously to lament. the committee now rose. monday, april . _non-intercourse with great britain._ the house resumed the consideration of the resolution reported by the committee of the whole house on the fifteenth instant, to prohibit all commercial intercourse between the citizens of the united states and the subjects of the king of great britain, or the citizens or subjects of any other nation, so far as the same respects articles of the growth or manufacture of great britain or ireland; and the amendment and modification thereof, which was proposed on friday last, being further considered and debated, the said resolution was amended to read as follows: "whereas, the injuries which have been suffered, and may be suffered, by the united states, from violations committed by great britain on their neutral rights and commercial interests, as well as from her failure to execute the seventh[ ] article of the treaty of peace, render it expedient for the interest of the united states, that the commercial intercourse between the two countries should not continue to be carried on in the extent at present allowed: "_resolved_, that, from and after the first day of november next, all commercial intercourse between the citizens of the united states and the subjects of the king of great britain, or the citizens or subjects of any other nation, so far as the same respects articles of the growth or manufacture of great britain or ireland shall be prohibited:" and then the main question being put, that this house doth agree to the said resolution, as amended, it was resolved in the affirmative--yeas , nays , as follows: yeas.--james armstrong, theodorus bailey, abraham baldwin, john beatty, thomas blount, thomas p. carnes, gabriel christie, thomas claiborne, abraham clark, isaac coles, william j. dawson, henry dearborn, george dent, william findlay, thomas fitzsimons, william b. giles, james gillespie, nicholas gilman, christopher greenup, andrew gregg, samuel griffin, william barry grove, george hancock, carter b. harrison, thomas hartley, john heath, john hunter, william irvine, matthew locke, william lyman, nathaniel macon, james madison, joseph mcdowell, alexander mebane, william montgomery, andrew moore, william vans murray, joseph neville, anthony new, john nicholas, alexander d. orr, john page, josiah parker, andrew pickens, francis preston, robert rutherford, thomas scott, john s. sherburne, john smilie, israel smith, samuel smith, thomas sprigg, thomas tredwell, abraham venable, francis walker, benjamin williams, richard winn, and joseph winston. nays.--fisher ames, elias boudinot, shearjashub bourne, benjamin bourne, lambert cadwalader, david cobb, peleg coffin, joshua coit, samuel dexter, uriah forrest, dwight foster, ezekiel gilbert, henry glenn, benjamin goodhue, james gordon, daniel heister, james hillhouse, william hindman, john wilkes kittera, henry latimer, amasa learned, richard bland lee, francis malbone, theodore sedgwick, jeremiah smith, william smith, zephaniah swift, silas talbot, george thatcher, uriah tracy, jonathan trumbull, john e. van allen, peter van gaasbeck, peleg wadsworth, jeremiah wadsworth, artemas ward, john watts, and paine wingate. monday, april . alexander gillon, from south carolina, appeared, produced his credentials, and took his seat. monday, may . _the embargo._ on a motion made and seconded, that the house do come to the following resolution: "_resolved, by the senate and house of representatives of the united states of america in congress assembled_, that the present embargo be continued, and every regulation therein shall be in full force until the twentieth day of june next:" mr. parker observed, that, although he was much in favor of the embargo when it was first enacted, yet, at the present time, he thought it would be improper to continue it. at that time, a system was formed by a majority of the house, for carrying into effect measures that might counteract the nefarious practices of the british government on our commerce; that the first object which presented itself to him was to lay an embargo, in order that the large fleets and armies of the british in the west indies, who were there on a design to conquer the islands of our friends, and had committed robberies on neutral property, that would disgrace a banditti of pirates; and, in order that they should be deprived of the supplies which they might require, as well as to prevent the further capture of our vessels, and treating the american flag and citizens with insult and cruelty, i thought that would be the stepping-stone to other measures which were concerted to oppose the insults of our enemies, and doing justice to our citizens, whose property had been robbed and persons abused by british armed vessels; that this was to be followed by a bill which had passed the house of representatives by a great majority for breaking off all commerce with great britain after november next, and this was to be followed by an arrestation of british property, to reimburse our citizens for the losses we had sustained; that, as the second measure was rejected by the voice of the vice president in senate, which had broken the chain; and, as the president had appointed a pacific envoy extraordinary to the british court, and as the fleets and armies of the british in the west indies, under sir john jervis and sir charles grey, had captured most of the french islands, he thought it would be improper to continue the embargo, the more so as the president, by slipping in and arresting the progress of the representatives, no doubt, with a certain hope of the continuance of peace, and being responsible therefor, he deemed it best not to interfere, and to give up every further prospect of hostility, until the event of the mission to britain shall be known. another reason that operated very forcibly with him, was, that our french friends were much in want of provisions; and, as there was no prospect of discriminations in their favor, which he had wished for, he should give it as his opinion, that it would be improper to continue the embargo after the th instant. from the commencement of the administration of this government, certain gentlemen, and particularly those of the eastern states, had been charged with regulating their political conduct by local considerations. they had disregarded the interest of every part of the united states, but the particular districts of country from which they came. the charge was now reversed: those districts have suffered infinitely beyond their neighbors, by the effects of those measures of which we complain; and, notwithstanding all this, the representatives of those districts have all at once so totally changed, have become so tame, so torpid, as to be regardless of the interests and sufferings of their immediate constituents. nor (said he) is this all; our kind southern brethren have, from pure disinterested benevolence and with a most acute sensibility, determined to procure for our constituents that redress to which we are indifferent. it had been said, that the gentlemen who were in favor of indemnification had opposed every measure of energy. they had, indeed, opposed certain measures to which they would give a very different appellation. they had not only favored, but had been the authors of every measure of respectable efficiency, as well in respect to force, as the means of defraying the expenses which our situation had rendered it necessary should be incurred. he need not say who had opposed those measures. mr. fitzsimons hoped that the house would not agree to the resolution. he stated the numerous inconveniences which had arisen from the measure already. the system of british conduct was now altered. there were at present many ships detained in the harbors of the united states, that were cleared out before the embargo was laid. their detention, as far as he could learn, was contrary to the common practice of nations, in cases of that nature. mr. w. smith said, that the reason why the embargo had been laid on was, the piracies of britain. the second orders of the th of january last had produced no alteration for the better in the conduct of her privateers. we had yet heard nothing from the agents despatched to the west indies; and we ought not to revoke the embargo till some change of system, on the part of britain, should warrant the measure; we knew nothing about the actual state of matters in the west indies. the newspapers were filled with stories of releasing american vessels in one island, and of capturing them in another. one captain had come to this port, and told a story to the editor of a newspaper. he then went to another publisher of a paper, and told a story _quite opposite_! the house could make nothing of such a farrago--such a jumble of contradictory reports. the public sentiment was against taking off the embargo. mr. wadsworth was against the motion. it had been said that american ships did not arrive from the west indies. they did arrive in great numbers, and as quickly as could be expected. from this he inferred that the ravages of british privateers had, in a great measure, ceased. insurance at present is not higher than ten per cent. a million of bushels of salt will be wanted this season in the american states; and they will be a million of dollars dearer, if the embargo is kept on, than if it is taken off. mr. w. said, that he had got home all his importations for this year. he had nothing, therefore, to apprehend on his own account, from the continuance of the embargo. it was his firm opinion, and he could declare it upon his honor to be so, that, if the embargo continued, the value of his own imports would rise one hundred per cent. he believed that salt would rise to three dollars a bushel. mr. nicholas had approved of the embargo when imposed; and he now hoped that it would be repealed by as great a majority as that which voted for laying it on. mr. giles recommended a discontinuance of the embargo. the gentleman from south carolina had urged the public sentiment as a reason for keeping it on. he was glad to hear that the public sentiment was an argument in that house for the adoption of measures; and he was particularly highly pleased that this respect for the public sentiment had now come from the quarter from which it was at present announced. he hinted that the gentleman (mr. w. smith) had not always paid an equal deference to public sentiment. he was for the embargo being taken off, because he understood that france would suffer considerably by its continuance; because it would materially affect the american farmers; and because, as the danger was now more fully known, merchants would beware of the danger, and provide more or less for their individual security. farmers in the united states had entered into contracts of various kinds. for the discharge of these, they depended on the sale of their crops. he was originally for the measure, which had answered many good purposes, by preventing american vessels from falling into the hands of british privateers. he was likewise for it, as connected with a system of other measures. [mr. g. alluded to the sequestration of british property, &c.] these measures had been laid aside; and therefore, he would now likewise be for laying this aside. mr. dayton said, that he had been in favor of laying the embargo, both in the first month and in the second month of its continuance; but he should now be opposed to the proposition on the table, and against extending the embargo beyond the th of this month, when the present one would expire. he would not be understood to found any part of his conduct upon a belief that there was a returning sense of justice in the government of great britain, or that there had been any material change in the predatory system. he lamented that any of those who were on the same side should have entertained such a belief, and especially that they should have mentioned it as an argument against the motion. where, he asked, was the proof that the instructions of the th of january had effected a change favorable to this country in the conduct of that nation? if there was such a change, as some gentlemen asserted, where were the two or three hundred american vessels that have been captured and carried into the british west india islands? if we look for them in our ports they are not to be found. it is true, that now and then a solitary vessel enters into our harbors, escaped from british depredation; but you would hear the seamen who arrived felicitating one another almost as much as if they had escaped from the clutches of pirates. he said that those instructions might make them more complacent highwaymen, but still they would be highwaymen. they might practice a little more of the solemn mockery of judicial process; they might be a little more observant of forms; but they had since continued, and would probably continue to rob us. he mentioned those things to show that there were other considerations which influenced him. these were, that an embargo would operate hereafter most unfavorably for ourselves, particularly our farmers, and for our allies, the french. produce, he said, would certainly fall much lower, if we continued the embargo longer than the th. our farmers and planters depend upon the sale of that produce to pay their debts, or to purchase necessaries for their families; and the resolution on the table would operate doubly hard for them, not only in lowering the value of the product of their farms, but by increasing the price of every foreign article which they would need to purchase from the merchants. the injury which its further continuance would occasion to our allies, the french, had great weight with him in opposing it. it could not be denied, that france was much more dependent upon this country for supplies of provisions, in her present arduous struggle, than any other nation, or than all others; and he inferred from thence, that there could not be a disposition in that house to extend a prohibition which should add to the sufferings of those who are fighting in the cause of liberty against the most powerful combination that was ever formed to crush it. mr. dexter was likewise for taking off the embargo. it was become pretty evident that the united states are not in immediate danger of hostilities. it was difficult to continue the embargo till we could hear from mr. jay, which might require six months. farmers suffer as much by the present restraint upon commerce as they would suffer by war. mr. clark was for letting the embargo die of itself. he did not think it quite fair for gentlemen all to speak upon one side of a question. there was another embargo that mr. c. wished to see taken off as soon as it could be done with propriety. we have been embargoed in this house, said he, for six months, and if we persist in this habit of making fine speeches upon every occasion, it will be a long time before this second embargo can be taken off. mr. gillon desired that the matter might have a full discussion. he and his colleague from charleston supported the motion by order of their constituents. mr. hunter then laid on the table a letter subscribed by forty-eight of the merchants and other citizens of charleston, who had suffered by the piracies of britain, with a list of the ships thus taken, and an estimate of their value. the letter was read by the clerk. mr. gillon then proceeded to make a variety of remarks in support of the motion before the house. he apologized, if any part of what he had to say, should seem a digression, as the subject was of so great an extent. mr. g. said, that he remembered, in that assembly, in , they had used to flatter themselves, that the eastern states would build ships, and the southern would supply them with cargoes; and they would mutually support the interest of each other. he regretted that this cordiality was not, on the present occasion, so ardent as could have been wished. as to britain relaxing her outrages in the west indies, the sole object of that nation is gain, no matter by what means it could be obtained. mr. g., to show the infamy of britain in its proper light, quoted some passages from the letter of a captain in the west indies, who had received the most unprovoked and the most horrible treatment from these miscreants. mr. g. hoped that the embargo would continue for a longer period than to the th of june, the term specified in the resolution. he recommended that the house should adjourn but for a short time, and continue the restriction till they sat again. it had been said, that this step would injure our allies; that the price of imports would rise, while that of exports would fall. he would be one of the last men willing to distress our allies. he hoped that the embargo might be restricted, so as to let the french import from this country whatever they wanted in american bottoms. this would promote our commerce, if gentlemen acquainted with that business considered the measure as practicable. reverting to the remarks of mr. wadsworth, mr. g. observed, that salt is at present only three shillings and sixpence or four shillings a bushel in charleston. the price has fallen there, and it has not even risen at philadelphia. he did not see much danger of a rise in the price of foreign articles here; merchant ships came at present frequently to this country. they encourage one another, as sure of a high market; and as to the embargo, they say that it cannot hold long. if the british depredations have ceased, it certainly is not owing to any change of principle in them. but our ships are kept safe at home in our harbors; their british system changes with the course of events in europe. no nation is more insolent in prosperity; none more humiliated in adversity. mr. g. concluded by expressing a hope that some way might be contributed for keeping on an embargo, without injury to the farmers. if this could not be done, it must be taken off. mr. murray hoped that the resolution would not succeed. indeed he thought, that a total refusal of its terms would consist of our true policy. he said, he was among those who supported the first unsuccessful vote for an embargo, and had in each following vote been for it. there were two reasons that had led him to think the embargo a good measure, when it was laid, and continued: the risk the american trade and seamen were exposed to from that infamous course of depredation which followed the order of the th of november, and the evidence that flowed from that order of an intention to involve this country in war. the depredation on our trade had been immense; and the embargo was not only defensible as a good cautionary measure, to secure the seamen and vessels of this country from violence, but by shutting out our vessels from the opportunity of being longer exposed to british depredation, the occasions would be diminished that would bring up the irksome question, how far government is bound to indemnify citizens for losses sustained under a violation of the laws of nations? the same act under which the depredations had been committed, manifested a spirit of hostility that betrayed the probability of war. he had believed when he voted for the embargo, that there was something of system in the november th order. he thought that order was the first movement of a system of hostile operations, which some intermediate events had set aside: of this, the order of the th january, and the subsequent dismissal of the captured vessels, was evidenced. if the depredations have ceased, and the vessels captured have been released, and if the probability of war be diminished, the leading motives that justified so strong a measure had ceased to operate. there can be no doubt that vessels that have been taken have been released: the daily arrivals in various parts of the union prove this. had the chance of war continued in full force, the continuance of the embargo, as is designed by this resolution, though it stood on a prodigious sacrifice of present interest, would have been not only defensible, but perhaps essential. it would not only prove negatively a benefit in the preservation of our shipping and seamen, but would operate, in the most sensible manner, as a withdrawal of supplies from the power with whom hostilities might be expected. this great sacrifice to policy he could not now believe to be necessary longer than the term assigned by law--the th of this month. the reason why he had voted for the continuance of the embargo, though we had received intelligence of the revocation of the obnoxious and shameful order of th november, was, because he had lost all confidence in the justice or wisdom of those who issued it; as he thought the first unjust by premeditation, he had suspected the last as insidious; however, this we know, that they have released our vessels. so very extensive was the influence of embargoes in this country, that nothing but dire necessity could justify them; a country with small capital and yet of immense export, and a great part of that export of a quality that could not endure the summer's heat. in such a moment as the present, where evidence of the opinions of the public was so contradictory, he would endeavor to do what appeared to be the broad and general interest. there was, he believed, a field open to speculation by the doubt entertained of this day's decision: a variety of opposite interests of course was thus created, and opinions and wishes might be expected out of doors from the different views of self-interest. those who had to purchase grain, for instance, calculating on the almost certain termination of the embargo some time this summer, and foreseeing great prices in foreign markets, might, if they were actuated by selfish principles, wish to see this resolution succeed. as the aspect of affairs had certainly considerably altered, and the reasons that led to the embargo had so diminished as no longer to warrant either a dread of the capture of our vessels or the apprehension of war, (at least speedily,) he hoped the resolution would fail of success. mr. boudinot asked what assurance we have that britain will not play the same game over again that she has done already? does not that new order prohibit, as much as ever, american vessels from carrying provisions to the west india islands? as to the republic of france, he could make great allowances for their situation; but, after all, what apology could there be made for the starving of american sailors in french harbors! is this proper! these men, as mr. b. had been well informed, were at this moment actually starving, and in want of the common necessaries of life. if the embargo is taken off, this must be done upon the principle that it ought never to have been laid on. we must expect, that if our ships go back again to the west indies, they will be taken as formerly. he could wish to stand by the measure, since it had once been adopted, and let the west indies see that we can starve them out; let them see that we can make them feel the effects of our measures. he did not wish to continue the embargo one moment longer than public necessity requires; but to have made the merchants and farmers suffer as they have done for two months, and then to have the business end in nothing, was rather vexatious. mr. w. smith defended his resolution. it had been alleged, that emigrants wanting to get back to the west indies, were prevented by this embargo. government had provided for that. the point, it is said, has been determined, that the west indies depend on america for subsistence. he asserted, on the contrary, that this point was not determined; and this revocation will prove to the world, that we are as eager to sell, as they are to buy. he hoped that there was a spirit in this country to stand the consequences of the measures. he next replied to the ironical applause bestowed upon him in a former part of this debate, by mr. giles, for his recently assumed respect to the public sentiment. he said that it is often very difficult to say what public sentiment is. the member himself had often opposed the public sentiment: he had opposed the arming of frigates, and yet that was surely a popular measure. at the same time, he hoped that no member would vote for a measure that his judgment condemns, because it is said to be a popular one; as this would reduce him to a mere puppet--a machine. it had been said, that this embargo should be taken off on account of france; but our vessels, if that obstacle is removed, will not go to france: they will go to the west indies, where they can get thirty dollars a barrel for their flour, which they cannot get in france. mr. s. next adverted to the other embargo, upon the members of the house, referred to by mr. clark. he hoped that public business would not be treated with levity, and that they would rise, when they found it convenient; but if the gentleman was so very impatient to get home, he could be very well spared by the house. mr. clark rose, and said a few words in reply. mr. giles approved of the idea of mr. gillon, as to the limiting the embargo to the sailing of vessels for the west indies: and a resolution to this effect was laid by the member on the table. mr. g. thought this a proper discrimination, and, if it could be effected, the true ground that the house ought to take. as to what the farmers of america had suffered by the embargo, mr. g. believed that there was not a single planter in the district which he represented, who would not rather burn his wheat, and dance round the bonfire, than sell it to the west indies to feed the british army. he would have brought forward a motion of this nature sooner, but he had not thought that it would succeed, nor did he think yet that it would. it would, however, show his sentiments, and he hoped the gentleman from south carolina, (mr. w. smith,) if he was anxious to support his reputation for consistency, would give his vote for the resolution. and then the main question being taken, that the house do agree to the said resolution, it passed in the negative--yeas , nays , as follows: yeas.--john beatty, elias boudinot, lambert cadwalader, george dent, alexander gillon, benjamin goodhue, john hunter, francis malbone, joseph neville, john page, william smith, artemas ward, and richard winn. nays.--fisher ames, theodorus bailey, abraham baldwin, thomas blount, benjamin bourne, thomas p. carnes, gabriel christie, thomas claiborne, abraham clark, david cobb, peleg coffin, joshua coit, isaac coles, william j. dawson, jonathan dayton, henry dearborn, samuel dexter, william findlay, thomas fitzsimons, dwight foster, ezekiel gilbert, william b. giles, james gillespie, nicholas gilman, henry glenn, james gordon, christopher greenup, andrew gregg, samuel griffin, william barry grove, george hancock, daniel heister, james hillhouse, william hindman, amasa learned, richard bland lee, matthew locke, william lyman, nathaniel macon, james madison, joseph mcdowell, alexander mebane, william montgomery, andrew moore, peter muhlenberg, william vans murray, anthony new, john nicholas, alexander d. orr, josiah parker, andrew pickens, francis preston, thomas scott, theodore sedgwick, john s. sherburne, john smilie, israel smith, zephaniah swift, silas talbot, george thatcher, uriah tracy, thomas tredwell, jonathan trumbull, john e. van allen, philip van cortlandt, peter van gaasbeck, abraham venable, peleg wadsworth, jeremiah wadsworth, francis walker, john watts, benjamin williams, and joseph winston. thursday, may . _indemnity for spoliations._ mr. goodhue moved the following resolution: "whereas it is a primary object in the establishment of civil government, to protect the persons and property of its citizens from the violence of nations as well as individuals; and whereas many of the citizens of the united states have suffered great losses, by spoliation made on their commerce, under the authority of great britain, in violation of the law of nations and the rights of neutrality, "_resolved, by the senate and house of representatives of the united states of america in congress assembled_, that the united states will guarantee an indemnification to all such citizens of the united states, whose property may have been captured and confiscated, under the authority of great britain, in violation of the law of nations, and the rights of neutrality." mr. goodhue moved that the resolution might be referred to a committee of the whole house, which was seconded by mr. dexter. it was then moved, by way of amendment to the motion, by mr. dayton, to add these words, "to whom was referred the resolution, for the sequestration of british debts:" to which mr. goodhue objected, because, he said, the subjects were distinct and separate in their nature and ought not to be combined. his resolution went only to establish the principle of indemnification, by guaranteeing it to the sufferers, leaving the fund from which it should be made (in case great britain should refuse to do us justice) to a future consideration. that whether british debts were sequestered or not, he said, the united states were bound to see that indemnity was made to the merchants whose property had been kidnapped in a secret, clandestine manner, while pursuing a lawful trade, under the authority of this government and law of nations, or to give them an opportunity of indemnifying themselves by making reprisals. that it was well known there was great opposition to the sequestration of british debts, and it was very doubtful whether such a measure would ever be adopted; and if this resolution was to be referred to the same committee, and become connected with that, he should very much despair of ever getting any indemnification. that british debts were a very precarious and uncertain fund; and the idea of ever getting indemnification from that source, would operate as a delusion. that if sequestration, under any circumstances, could be proper, it was highly improper at this time, when an envoy extraordinary had just been despatched to great britain; and more so, as we had discontinued the embargo, which would put all our remaining vessels in the power of that nation. he should, therefore, consider an agreement to the amendment as amounting to a determination not to consider the subject, at least for the present session. in support of the amendment, it was argued, that the two subjects had an intimate connection with each other, and never ought to be separated; that british debts and british property were the natural and only funds for paying british depredations, and if indemnity was not given this way, it ought not to be given at all; that, as it was probable the resolution for sequestration would lie dormant for some time, it was best to refer this to the same committee, that they might sleep together. the amendment was supported by messrs. lyman, nicholas, smilie, dearborn, and madison. mr. dayton made a number of pointed remarks on what he considered as the total futility of such a resolution. he looked on it as nothing better than an awkward attempt to gain popularity. he complained bitterly of the injustice of bringing up this motion alone; because when he voted against it, it might be surmised that he was unfavorable to the redress of the injuries of a certain class of citizens. he was for redressing their wrongs, and he had marked out to the house the only effectual way in which these wrongs should ever be redressed, viz: the sequestration of british property. he adverted to an expression made use of, some days ago, by mr. sedgwick, who had called this a _mad_ project. mr. d. was of opinion that the _mad-cap_ might with propriety be transferred to a different situation, which he specified to the house. he said, that we were frequently told of the justice due to the british subjects. be it so. but was there no justice also due to the people of the united states? and what justice could there be in attempting to make the american citizens pay for depredations committed by british privateers, when we had in our hands british property? were we not bound to take as much care of our own interest, as of that of other people? it had been said, that as a negotiation was to commence under an ambassador extraordinary, that this measure would impede its success. he was, on the contrary, convinced that this was the only step that could be likely to insure the success of mr. jay's mission. it would teach britain to give up her infamous conduct. it would convert, in the literal sense of the word, every english manufacturing house, that had debts due to it in this country, into an american negotiator; and they would, for their own sakes, compel their government to do justice to the american merchants. mr. d. scouted the idea of taxing america, to pay for the depredations committed in the west indies. supposing, what every gentleman in the house knew to be impossible, that if congress actually were to pass such an act, the people would not submit to pay their money for any such purpose. mr. sedgwick said, it certainly had not been his wish that the question should be brought forward at the present time. as it was, however, before the house, as he approved the motives of his colleague, who made the motion, and as he perfectly concurred with him in opinion on the subject, he would make a few concise observations. he believed, that in a government such as that of this country it was the peculiar duty of those to whom the administration has been committed, to extend security and protection to all the interests, and redress for all the injuries of the citizens. that inexcusable and unexampled injuries had been perpetrated, and an immense value in property unjustly spoiled, and that the honor of our country had been insulted, without provocation, were facts admitted by all. those whose property had been the sport of wanton violation, which, in many instances, had reduced the sufferers from ease and affluence to want and misery, came forward and demanded redress and indemnification. that they were entitled to such indemnification, from the nature of our social compact, he understood to be agreed by every gentleman. [here mr. s. was interrupted by several members; and mr. nicholas and mr. smilie declared that in their opinion, there was no obligation to indemnify the sufferers, except it were done out of a fund to be formed by the sequestration of british property.] mr. s. said he was obliged to the gentlemen for setting him right; till now he had believed that the right of the sufferers to indemnification was denied by none. if this, however, was really a question yet to be decided, it was due to the sufferers, it was due to our own honor, to decide it without delay. it was asked, by what means is the government to administer redress? they were first to apply to the governments which had inflicted the injuries, to state their nature and extent, and to demand, in unequivocal terms, redress. this business, notwithstanding all the opposition which had been made, was happily in a proper train. he hoped and believed that the application would be effectual. it might, however, fail; and in that case, he was free to declare that we owed it to our honor and to our injured citizens, to attempt redress by means of the last resort. in that unhappy event, the interests of the sufferers must be involved with the general interests of the nation, and must abide the ultimate result of war. but if satisfaction should not be obtained by negotiation, and should the government, from any political considerations, not seek redress by force, in such events the sufferers would have a just claim on their country for indemnification. the question now immediately before the house was, to refer the motion for indemnification to the committee of the whole on the subject of sequestration. this was not fair, as it respected that part of the house who approved an engagement to indemnify, and who would never consent to sequestration. it was not fair as respected the sufferers, because he believed there was not a gentleman in the house who supposed that the measure of sequestration would prevail. he was astonished that any should believe that it ought to be adopted. he, himself, without hesitation, approved of engaging to indemnify the sufferers; but at the same time, with all his heart, he abhorred sequestration and confiscation of debts, as the measures which all civilized nations had for more than a century abandoned as immoral and unjust. he would not now enter into a discussion of the question of sequestration. whenever it came directly under consideration, he pledged himself to undertake to prove that it was against the law of nations, that it was immoral, unjust, and impolitic. he had been sorry to perceive that the feelings of the mover of that proposition (mr. dayton) were wounded, by the terms in which gentlemen had spoken of his motion. he himself, in his conscience, believed it to be immoral and unjust; and, as such, he felt himself bound as a man of honor to give it his strenuous opposition. the gentleman surely could not reasonably expect that independent men would sacrifice opinion to politeness or to friendship. all he could do, and that he did with pleasure, was to declare that he believed the gentleman's motives were pure and upright, and that he had a perfect confidence in the correctness of his moral sentiments. viewing the subject in the light he had expressed, he appealed to the candor and fairness of gentlemen, to what tended the combining of those irritative questions of indemnification and sequestration, but to wound the feelings and evade the just application of the sufferers? gentlemen had charged his colleague, and those who had supported his motion, with attempting, by these means, meanly to court popularity. to refute this charge would, in his opinion, be unnecessary, because no well-informed man in america could believe it. he did not know that the opinions which were held by his friends and himself on this subject, were popular; it was sufficient that they were believed to be just. was he, however, disposed to recriminate, by disclosing motives which were not avowed, but concealed, he could tell a tale, which, he believed, could be heard with effect. mr. goodhue spoke a few words, in direct opposition to what had been advanced by mr. dayton. the two propositions ought to be discussed separately. we had sent a negotiator to britain, and a sequestration would put an end to his business. the citizens of the united states ought to be taxed, in the mean time, to pay these losses; and it was possible that a sequestration might, hereafter, be thought advisable. he very strongly pressed the idea of a tax to this end. it would be a proceeding of the most superlative impropriety, to lay on such a sequestration at this particular juncture, when we had just agreed to take off the embargo, because our ships would go to england, and be all seized, by way of reprisal. mr. clark recommended that both propositions should be laid aside for the present, and be suffered to take a sweet nap together, till a more convenient time. he spoke with much contempt of the notion of taxing the people of this country to pay for the ravages of britain. the court of london would say to the world: "you see that we acted right: you see the united states think so likewise; for they themselves pay their merchants." mr. giles agreed with mr. clark: but as there is a necessary sameness in the arguments on this question, and as they have already been detailed in so many different forms, it seems needless to repeat them over again so frequently. he said that when this tax came to be levied, every farmer would say, every man in america would say, "we shall have nothing to do with this business. why don't you indemnify british depredations out of the british property that is within your grasp?" he had heard that congress ought to decide an abstract proposition, viz: that this government was, in any event, bound to pay the recent losses of its merchants by sea; and then proceed to assign funds for the payment. he thought that before congress undertook any such engagement, they ought at least to be possessed of the money requisite to discharge it. he hoped that the house would never proceed to a vote in support of any abstract axiom, especially where taxes and public money were concerned, till they had carefully digested the collateral circumstances. mr. dexter spoke against the amendment. he said, that very strong reasons existed both for taking into consideration a proposition for indemnity to the sufferers, and also against connecting it with sequestration or any other subject. each ought to stand or fall on its own merits. the sufferers were numerous, and deserving citizens; they had waited a long time, and had a right to know, before the close of the session, what protection they were to expect from the government of their own country. sequestration, without a change of political circumstances, would never pass both houses of the legislature; to connect them, then, would be to deny relief, without even examining the principles on which they claim it. he said, british debts had been called the only proper and natural funds: in his opinion, they would be no fund at all, even if sequestration could be adopted. the debts would never be collected; and not only so, but sequestration would be the beginning of hostilities, and war must ensue; this, at the same moment, would prevent all hope of obtaining justice from britain, and also discharge our own government from every obligation to indemnify. mr. d. said he would state what, in his opinion, was the proper and natural fund--the money to be demanded of britain by our envoy extraordinary. should this fail, the government of america would either pay the sufferers, or grant them letters of marque and reprisal. this, he said, is the constant course of nations, and this the sufferers have a right to demand, as a counterpart of their allegiance. mr. d. said, it had been objected that the british government would be encouraged by it to refuse a recompense. this, if true, would be a serious objection, for he had always viewed negotiation as affording the only probable chance for indemnity to the sufferers. if a recompense be refused by britain, war will be the consequence. the objection, however, he thought, would be entirely removed, by attending to the resolution itself. it is not, he said, a provision for taking the debt on ourselves, but merely to _guarantee_ a recompense to the sufferers. the very word itself implies that the government of america is not the principal debtor, but is to compel another to make indemnity, or become the debtor. mr. d. closed with saying that he had attended only to the reasoning of the gentlemen, and not to their personalities. it was not his practice to leave the question, to impute to others motives either corrupt or paltry: if they chose to glean imaginary laurels on this ground, he was not anxious to share them; they could best judge whether, in this way, they were likely to increase their reputation or benefit the public. messrs. ames, murray, smith, (of south carolina,) and hillhouse, also spoke against the amendment, and said the merits of neither proposition were now before the house, but only the mode in which the subject should be considered; that they were in themselves separate and independent, and ought to have a separate and independent consideration; they were questions of very great national concern, and that blending them together would give an undue bias, and neither would be fairly and impartially decided. it was doubtful whether the resolution for sequestration ever ought to be adopted, and that to connect the two subjects, would be to hang a millstone about the necks of the sufferers; that, as they were a numerous and very meritorious class of citizens, their claim merited a candid and full examination, unembarrassed with any other matter. a warm dispute arose about the form in which the question on this resolution should be taken. the point actually contested seemed to be, whether the resolution was to be referred to the committee on mr. dayton's motion for the sequestration of british property, or to a separate committee, which was insisted on by the mover, mr. goodhue. a division took place upon the question of agreeing to mr. dayton's amendment, to add, after the words "be referred to a committee of the whole," the following words, viz: "to whom were referred the resolutions for sequestering the british debts;" and the yeas and nays being called for, were taken--yeas , nays , as follows: yeas.--theodorus bailey, abraham baldwin, john beatty, thomas blount, elias boudinot, thomas p. carnes, gabriel christie, thomas claiborne, abraham clark, isaac coles, william j. dawson, jonathan dayton, henry dearborn, george dent, william findlay, william b. giles, james gillespie, alexander gillon, christopher greenup, andrew gregg, samuel griffin, william b. grove, george hancock, john heath, daniel heister, william hindman, john hunter, matthew locke, william lyman, nathaniel macon, james madison, joseph mcdowell, alexander mebane, william montgomery, andrew moore, peter muhlenberg, joseph neville, anthony new, john nicholas, nathaniel niles, alexander d. orr, john page, josiah parker, andrew pickens, francis preston, robert rutherford, thomas scott, john s. sherburne, john smilie, israel smith, silas talbot, philip van cortlandt, abraham venable, francis walker, benjamin williams, richard winn, and joseph winston. nays.--fisher ames, james armstrong, benjamin bourne, david cobb, peleg coffin, joshua coit, samuel dexter, thomas fitzsimons, dwight foster, ezekiel gilbert, nicholas gilman, henry glenn, benjamin goodhue, james gordon, james hillhouse, henry latimer, amasa learned, richard bland lee, francis malbone, william vans murray, theodore sedgwick, jeremiah smith, william smith, zephaniah swift, george thatcher, uriah tracy, jonathan trumbull, john e. van allen, peter van gaasbeck, peleg wadsworth, and john watts. and then the main question being put, that the house do agree to the said motion for commitment, as amended, it was resolved in the affirmative. friday, may . _revenue bill: salt and coal tax._ the house resolved itself into a committee of the whole house on the bill laying additional duties on goods, wares, and merchandise imported into the united states, and on the tonnage of ships or vessels. the three cents per bushel of additional duty on salt was objected to by mr. findlay, as oppressive to his constituents. mr. ames was convinced, that this was much better than a land-tax. it was beyond all comparison, more cheap, more certain, and more equal in the collection than a land-tax. he would rather tax salt, at even half a dollar per bushel, than agree to a land-tax. mr. clark would be very glad to hear the gentleman from pennsylvania (mr. findlay) specify, upon what subject he was willing to pay a tax? it was beyond the comprehension of mr. c., for what sort of a tax the gentleman was prepared to vote, or, indeed, what sort of taxes the western settlers of pennsylvania pay. we lay a duty on sugar. they make sugar for themselves. we lay a tax on tobacco. they are to manufacture for themselves. we lay an excise on distilleries. they refuse to pay this tax, and, in fact, they do not pay it. we tax wines; but we are told that these people are poor. they cannot, therefore, afford to drink wine, on which the duty is very heavy, for that duty is paid only by the rich. we tax the importation of foreign fineries, such as silk, but silk also is not the dress of poor people, so that here again the constituents of the gentleman get off. we are going to tax the importation of foreign coals, but they have plenty of their own, and so far from paying a tax on them, are cutting a canal to bring them down to philadelphia; which will drive out the importation of foreign coals, and so destroy the tax altogether. under these circumstances, mr. c. was solicitous to learn what taxes the back settlers paid, for, as far as he could understand, they paid none; and their representative would do well to inform the house on what they were willing to pay a tax. was government to be burdened with them, and derive no compensation? was it a sufficient reason for exempting a district from public burdens to say that the people are poor? are taxes to be paid exclusively by the rich? mr. rutherford objected to this duty on salt. it was often to be carried from one to three hundred and fifty miles inland, and in fact, it frequently costs twenty shillings per bushel. no tax could be so universally unpopular as this would be. mr. findlay replied to mr. clark. as to sugar, though some of his neighbors made theirs, mr. f. bought his own in philadelphia. as to silks and other female fineries, his constituents did just like other people. they spent, in that way, as much as they could possibly afford, and had among them ladies very well dressed. as to other matters, his constituents purchased their manufactures in philadelphia, and paid for them as other people did. salt, he said, was known to be necessary for cattle in the back country. he was strongly against the tax. mr. gillon likewise opposed the tax on salt. it had been proposed, in the state which he represented, but never could be carried through. on a division, it was rejected--ayes , noes . a motion was made for striking out twenty-five cents per ton of additional tonnage, on foreign vessels, in order to insert fifty. it was passed in the negative--ayes , noes . after going through the bill, the committee rose, and the house went into consideration of the amendments made in committee of the whole. on the subject of an additional duty on coal imported, mr. giles said, that the rise was very moderate, from four and a half to six cents per ton. a boston company was about, as he understood, to embark in this business, but waited to see the steps taken by congress. there was as much coal in virginia as would serve all america and europe besides. mr. wadsworth would have the additional duty restricted to all coal imported in foreign vessels. mr. heister wanted to know, whether the price of coal had not been already doubled within these few years. he was informed that coal imported had of late risen from six dollars per ton, to twelve dollars and a half. mr. fitzsimons said, that a few years would put an end to importation altogether. he defended the tax. he saw no danger to any of the manufactures in america, that make use of foreign coal arising from this tax. nothing but a capital was wanting to make america supply herself. mr. sherburne recommended the amendment of mr. wadsworth, as to the restriction of this duty to foreign bottoms. mr. madison worded this amendment, "on all vessels not belonging to citizens of the united states;" because foreign bottoms might belong to people of this country. he was not solicitous about the fate of the motion. the amendment was lost; but the original motion was carried. saturday, may . _tobacco and sugar duties._ the bill laying a duty on tobacco manufactured, and sugar refined, in the united states, was read a second time. mr. lyman opposed its passing to a third reading, on the ground that those articles deserve yet the fostering care of government, and are entirely incapable of bearing such a burden; for, even now, notwithstanding the present protecting duties, they, especially the article of manufactured snuff, are yet imported. he also objected to the bill from the exceptionable nature of an excise. some objections were made to the propriety of opposing the bill in its present stage. mr. clark thought the bill unnecessary, because the two and a half per cent. of additional impost would supply all the wants of the public. he thought that the bill had an _immoral_ tendency, because it tempted men to perjure themselves. it was oppressive, as making every man's house liable to be searched at midnight. he thought it also would produce an expensive mode of collection. he, therefore, objected against it, as unnecessary, of an immoral tendency, as oppressive, and expensive. he had always voted against it, and he always should persist in voting against it. mr. ames pressed the necessity for money, and the want of other funds to discharge the services of the current year. he said, that to impose taxes was an unpopular office, and exposed members to dislike. perhaps they might be _persecuted_; but it was still requisite for members to perform their duty. he had a great repugnance to the excise as established in europe; but in america it was of a different nature. to reject the present bill would place the finances of this country in a very alarming point of view. if this bill was thrown out, we might bid farewell to firm and determined measures. we must go home when we are to lay a tax, and ask the people whether or not they like it. mr. nicholas went into the old arguments against excise. he was severe on the general character of excise officers, whom he represented as the dregs of society. very few persons in america would accept of such an office at all, and those who accepted of it, were by no means of a respectable rank in life. mr. fitzsimons.--there are as good men employed in the collection of the revenue as any others in the country, not excepting the gentleman himself; and men who are as well liked by their neighbors. mr. w. smith.--the rejection of the bill at this time will not decide the principle of excise; if rejected, it will not be owing to the arguments against it, but to the absence of a great many members, who never dreamed that the question would have been brought on to-day, and who do not even know that the bill has been so much as reported. the practice is uncandid, and unprecedented, to endeavor to reject a bill at this stage, before it has been printed, and the members know its contents. was it fair and consistent, in a thin house, to reject the bill without any further consideration than one reading, for the sake of form, a reading, to which _nobody had listened_? how was this to settle the principle of excise? was it not already settled in the constitution and by existing laws? but a new argument had been this day resorted to; there was a surplus of revenue in the treasury, without new taxes, and this had been discovered since this tax had been agreed to. if this argument was founded in fact, it would put an end to all debates on all the new taxes; but what was this notable discovery? an additional two and a half per cent. on impost. this was no discovery which could change the question, for it was agreed to before the duty on manufactured tobacco and sugar; and the latter had been therefore established by the house, with a knowledge that the former was laid. he asked if, in the present situation of the country, all dependence was to be placed on commerce? how could certain members reconcile this proceeding with their former votes and language? but the other day we were to prohibit all commercial intercourse, to sequester debts, and to prepare for war. now, we are to derive the whole of the revenues from trade; the same gentlemen who urged these measures were now defeating every kind of revenue which might be productive. there was something so extraordinary in this, that he could not account for it. it was said, that the committee of ways and means ought not to have reckoned on a defalcation, in the impost of $ , , , but the gentlemen assign no reasons for their assertion, whereas the committee founded their report on the best information. admit, however, that it is doubtful; was it safe, in the present critical state of the country, to place all dependence on _external_ resources, which were every moment in danger of being cut off? did not duty require a provision for the defence and safety of the united states by _internal_ resources? this was certain, that the extra appropriations of this year exceeded those of any former year by two millions and a half of dollars. where was the money to come from? the members in opposition to this tax, voted out land and salt; they endeavored to vote out stamps and carriages. they will agree to nothing but impost. are the merchants to be saddled with the whole burden, because, like friends to order and tranquillity, they have not called _town-meetings, or published inflammatory resolves_? it is said, war is no longer expected; this country is willing to submit to every thing. was this insinuation pointed at congress or the executive? it was unfounded in either case; because negotiation was tried, it did not follow that either the one or the other branch of the government were disposed tamely to submit to injury; for himself, he was ready to aver that, if proper reparation were not obtained, he should be for war. the balance now being trembling on its beam, and no one could say whether it would settle for peace or war, he was for preparing seriously for the latter, while he strove to preserve the former. pecuniary exertions were indispensable; it might be a pleasant thing to oppose taxes, and the advocates of new taxes might be obnoxious, but this would not draw him from his duty. the increase of excise officers had been mentioned; the bill did not propose a single one; the bad character of the excise officers had been mentioned; the supervisors were among the most respectable men in the united states, and the inspectors were as virtuous as the officers of the customs. the embarrassments, the taking of oaths, &c., were not more applicable to manufacturers than to merchants and captains, who could not enter, or unlade, or clear out, without difficulties, embarrassments, and oaths; but this was disregarded, as if they had less feeling than other people. as to the injury to morals, the necessary oaths required by all revenue laws were not injurious to the morals of the honest, and those who swore to the truth; and, as to those who were disposed to commit frauds and perjuries, no injury could be done to the morals of those who had none. mr. s. wished that less had been said in the way of general reflection on the collectors of the revenue. some years ago, a member of that house, when they were at new york, attacked the tide-waiters. there happened to be a tide-waiter in the gallery, who wrote, next day, a pretty smart letter to the member who had spoken so freely of his profession. mr. niles hoped that no gentleman would say, that he wished to see the treasury empty. he would, for his own part, be glad to know whether there was a deficiency or not, clearly stated. he did not see so much as some others did, in the objections to an excise. it was _called_ an excise, it was true, but we do not know yet the way in which it is to be levied; so, we cannot tell whether there will be any hardship in it or not. he went over some of the statements of different gentlemen, but on the whole, there was so much contradiction in the assertions of different members, that mr. n. knew not what to make of them. mr. boudinot moved that the house adjourn, which they did immediately, at three o'clock. monday, may . _impressment of american seamen._ mr. murray moved, that a committee be appointed to report a bill to provide such regulations as may enable american seamen to obtain and carry evidence of citizenship, for the purpose of protecting them from impressment into foreign service. he said, that it was a reasonable expectation that the subject of this resolution should be seriously attended to, at any time; but there were the most urgent reasons for an attention to the situation of our fellow-citizens of this description at the present period. that the evil of impressment into foreign service existed, no gentleman could doubt, and it was equally doubtless, that it was the duty of congress, as far as they could, to provide a remedy for the evil. a few years since, when britain armed her navy against spain, on the nootka-sound question, it had been the fate of several hundreds of the american seamen to be impressed into a service which they abhorred. for a proof of this fact, he would recall the remembrance of the house to the claim made by mr. cutting for repayment of money actually expended by him, in the liberation of seamen in this humiliating situation. congress repaid mr. cutting two thousand dollars. that they had thus attended to this claim was proof that the fact complained of existed. the evil arose, not more from the extreme insolence of disposition of the pressgangs, than from a real difficulty of discriminating american citizens from british subjects. the difficulty was in similarity of language, dress, and manners; and from the deficiency of evidence of citizenship, which, in a foreign port, could not always be obtained. for, though the lords of the admiralty of england had laid down certain rules, in the case that he had mentioned, the rules laid down had exacted so rigid and pointed an oath, from personal knowledge, that they scarcely could, in any case, be complied with. a captain might, in many instances, _believe_ his sailor to be an american, and yet not think himself warranted in making oath to this fact. the object of his resolution was, that seamen, who are american citizens, might all pursue a uniform line of evidence in proof of citizenship, and that, by an entry of such evidence solemnly obtained in the clearances or other authentic papers of the ship, the same weight and authority should be given to their part of a ship's papers as were, in all cases, given to all sea letters and other papers. he believed that, if the subject went to a select committee, a particular regulation on this subject might be digested, which would, in many cases, if not in all, afford such good evidence of citizenship, as would save american seamen from the injustice and cruelty that many, he believed, now actually suffered under; for he had heard that a number of them had been impressed in the west indies on board of the british fleet. he was not so sanguine as to imagine, that any law could give full protection to our seamen; for he was convinced that, in order to give complete protection, certain rules of evidence must first be recognized, by convention between this country and britain, stipulating the extent of certain political principles relative to alienage and allegiance. till, however, that is done, he thought it the duty of congress, and particularly at this disturbed period, to afford every aid in its power to this class of citizens. to bring the subject before the house, he had moved the resolution, which he gave notice that he would call up to-morrow. _tobacco and sugar duties._ the house then resumed the consideration of the bill for laying a duty on manufactured tobacco and refined sugar, which had been debated and postponed on saturday. mr. goodhue wished for a delay. he had seen a gentleman from pennsylvania, last night, whom he did not now see in his place in the house, and who was making out an estimate, whether the money proposed to be raised by these taxes would be wanted or not. if they could really do without the money, it would be better to reject the bill. mr. sherburne thought that the question might be delayed, till it was seen whether the sums to be produced by this bill, would be actually required or not. mr. dayton believed that the money was wanted. he would therefore vote for the bill. it was incumbent on gentlemen who objected to the bill, to show that the money would not be wanted. mr. smilie and mr. lee rose at the same time. the speaker observed, that mr. smilie had risen first. mr. lee said, that the gentleman from pennsylvania had already spoken twice on this subject and he _insisted for order_. [mr. l. referred to the proceedings of saturday, for mr. smilie had not spoke any before, this day.] our time, said mr. l., is too precious to be wasted in talking, when every gentleman is competent to give his vote already. i call for the question. his opinion was, that the money was not yet wanted; and that it was being too provident to vote for taxes, before they were required by necessity. mr. w. smith contended, that there would be a very considerable deficiency. he asked, who would lend us money, if there was such a difficulty in establishing funds to pay the interest of it? mr. wadsworth hoped that the bill would not be altogether thrown aside. there was part of it that he approved, and part of it that he did not perfectly approve. in discussing this question, much stress has been laid upon the two and a half per cent. of additional impost on importations, as if _that_ would be a fund for the increase of revenue, and supersede the necessity for some other taxes. mr. w. assigned his reasons for believing that this supposition was perfectly chimerical. within the last six months, american vessels and property had been captured by the british privateers in the west indies, to the extent of _one million of dollars_. this will make the importations less, by at least five hundred thousand dollars, and, of consequence, destroy a great part both of the old and new impost. property to the extent of one-fourth of a million of dollars, perhaps, had likewise been seized by the spaniards, and other nations had most likely taken as much more. the total loss to american commerce could not, therefore, be less than _fifteen hundred thousand dollars_. the imposts on importations must, therefore, be very much reduced; as from britain, for example, there would not, in his judgment, be one-fourth part of the imports, from this time to the first of december, that had been formerly. and no man could imagine that, at the most, they would exceed one-half of their former amount. the british merchants would be afraid, on account of the matters that had been proposed. these people, they would say, have been laying embargoes, and speaking of sequestration, and indemnification. we must be cautious. mr. w. added, that it was possible enough, that america might, in the fall, be at war with britain; and then impost and importation will fall together. these were his motives for believing that the two and a half per cent. would be of no great consequence. it had been said, that the ten per cent. would produce a large augmentation. he did not, from the diminished quantity of imports, believe that it would be _so much_, by twenty or thirty per cent. as the old seven and half duty had produced. mr. w. next reverted to the bill before the house. one part of it (the duty on snuff) he could not agree to. the other part, refined sugars, would fall on those who could afford to pay it, and after all that had been said against this bill, he was firmly convinced, that, so far from injuring the manufacture, it would thrive the better for this tax. he, on this account, hoped that the bill would pass, in spite of his objection to some things that might, perhaps, be corrected. he then replied to the complaints of some gentlemen, who, as an excuse for repeating over and over again their former arguments and opinions, observed, that they had not received an answer. it was very likely that they might think so, and he, for his part, did not think that he had been _answered_. this kind of reasoning had no end. perhaps it was impossible for him, or gentlemen of his sentiments, to answer the opposite side of the question. and, again, perhaps the gentlemen of the opposite opinion could not answer them. the matter must rest there, and the question come to a vote. mr. fitzsimons was convinced that there was a deficiency, and a great one. but he was not fully prepared to speak upon the subject; though he was sure of the fact. he did not wish to hurry the subject. the bill might be printed. mr. nicholas was sorry to have learned that he had, on saturday, made a general reflection on a profession of men. with some gentlemen, in the line referred to, he had as strict a friendship as with any persons on earth. he said, that ten lines of figures, which he had in his hand, would satisfy the house, that the taxes in the present bill are not wanted. he then began a detail of considerable length, to which mr. fitzsimons replied. mr. tracy.--one gentleman says that we have a surplus of three millions; another, that we have a surplus of one million. it is very strange for gentlemen to be coming forward in this stage of the debate, and to say that money is not wanted, after the want of money has been so frequently advanced, and admitted, in the house. it is unaccountable, that there should be a contradiction on a point of this nature. he next went into a long series of calculations. he objected to the estimate of the impost of , that was reckoned upon for the current expenses of . a great part of this impost was still due, by bonds. the persons who had given these bonds were, many of them, broke by the british depredations in the west indies; and, in fact, a large proportion of that impost never would be paid in to the collectors of the revenue. he was displeased with the way in which some gentlemen had spoken of the national debt. he had no share, for his own part, as a creditor; but a part of his property must go to the discharge of it, and he should cheerfully pay it. he did not agree with those gentlemen who, in the event of a peace, would not wish to replenish the treasury. it was curious, that the house had now been assembled for nearly six months; and that their chief object had been to discover ways and means for raising public money. a bill for that purpose had been brought in; and just when it was on the point of being passed, we make a sudden and wonderful discovery, that no money is wanted; but that we have an overplus of three millions of dollars. the thing cannot be. the calculations are not founded on truth. he did not believe that members understood the bill. he could demonstrate that there was occasion for a supply of money. mr. madison thought that the arguments on each side of this question might be reduced to a narrow compass. if peace continues, he supposed it likely that the revenue would not fall so far short, as the committee had apprehended. but if there was a war, the expense would much exceed any thing yet thought of. he was for laying aside the subject at present, and if a rupture with england should ensue, he would then recommend, at once, a _direct_ tax, and that these excise acts should be entirely thrown aside. if there was no war, he believed that no new taxes were required; let the matter therefore die, as to the present. he disapproved the principle of the tax, and should, on that account, think himself justified in voting against it. mr. gillon rose, and replied to several gentlemen, who were for the excise on tobacco, snuff, and loaf and lump sugar; and observed, that he had partly obtained his object, by drawing gentlemen forward, with the calculations which had been kept back. but as the gentlemen, after having, by their own account, been three months on this subject, avowed that his request of detailing those large sums came rather unexpected, and that they wished to have more time to make their calculations, he had not much objection to let this bill have a second reading; but he hoped they would be accurate, in proportion to the time taken to preface them. as to the idea of our general taxes not taking place until the first of next march, that had no weight with him; because he knew the civil list for the year was not all then due, nor would all the sum for military and naval preparations be to be paid down, the day the ore was dug for the guns, nor on the day that the first tree was cut to begin the frigates. he agreed that a deficiency might arise on the supplies now due, for the terms which the gentlemen had assigned by the plunder of our merchants' property. he was happy to find that gentlemen had not lost sight of the serious applications they had received from that respectable and utile body (the merchants) for redress; and he should take care to remind gentlemen of their own observations, when the requests of the merchants were brought forward, as he was clear something must be done, either by restitution on the debts to be sequestered, a loan for them under the guarantee of the union, or by prolonging the time to a remote period, of paying the duties that they owed. he was accused of making _wonderful discoveries_, of making calculations not founded in truth. the latter he denied, for, if there is any untruth in them, it cannot be on his side, but must have arisen from the committee; therefore, to them be the untruth applicable, as he did not make use of a figure but what they placed in their report. he still retained his opinion, that surplus revenue was dangerous in the hands of any government. what did they want to do with it? he hoped nothing else but to buy up the national funded debt as cheap as they could, which act was pardonable, only by the intent, he presumed, they must feel of at last doing justice to our late armies. his meaning was, that the profits arising from this speculation should be kept as a sacred deposit out at interest, and that interest to be employed towards paying off the interest due on the principal losses which our brave officers and soldiers had met with, by being obliged to part with their shares of pay at a very inferior value. this you may better pay to patriotism and misfortune than pay to speculators. mr. tracy.--if i have said what is alleged, the language is too indecorous to be used by me to any gentleman on this floor. if any thing of that kind has escaped from me, i am ready to ask the gentleman's pardon. i have the highest respect for his character. and the question was then put, shall this bill be rejected? it passed in the negative--yeas , nays , as follows: yeas.--thomas blount, thomas p. carnes, gabriel christie, thomas claiborne, abraham clark, isaac coles, william findlay, william b. giles, alexander gillon, andrew gregg, daniel heister, william lyman, nathaniel macon, james madison, joseph mcdowell, william montgomery, andrew moore, peter muhlenberg, joseph neville, anthony new, john nicholas, josiah parker, francis preston, robert rutherford, thomas scott, john smilie, thomas tredwell, abraham venable, francis walker, richard winn, and joseph winston. nays.--fisher ames, james armstrong, theodorus bailey, abraham baldwin, john beatty, elias boudinot, benjamin bourne, lambert cadwalader, david cobb, peleg coffin, joshua coit, william j. dawson, jonathan dayton, henry dearborn, george dent, samuel dexter, thomas fitzsimons, dwight foster, ezekiel gilbert, james gillespie, nicholas gilman, henry glenn, benjamin goodhue, james gordon, samuel griffin, william barry grove, thomas hartley, james hillhouse, william hindman, john hunter, henry latimer, amasa learned, richard bland lee, matthew locke, francis malbone, alexander mebane, william vans murray, alexander d. orr, andrew pickens, theodore sedgwick, john s. sherburne, jeremiah smith, israel smith, william smith, zephaniah swift, silas talbot, george thatcher, uriah tracy, jonathan trumbull, john e. van allen, peter van gaasbeck, peleg wadsworth, jeremiah wadsworth, artemas ward, john watts, and benjamin williams. the said bill was then read the second time, and ordered to be committed to a committee of the whole house on wednesday next. _augmentation of the army._ the house resolved itself into a committee of the whole house on the bill to augment the military force of the united states; and after some time spent therein, the chairman reported that the committee had had the said bill under consideration, and made amendment thereto; which was read, as follows: strike out the first section of the bill, in the words following, to wit: "_be it enacted by the senate and house of representatives of the united states of america in congress assembled_, that there shall be raised, for the term of ---- years, or during a war which may break out between the united states and any european power, an additional military force, consisting of twenty-five thousand non-commissioned officers, privates, and musicians, together with a proper proportion of commissioned officers of all grades, respectively, according to the present military establishment of the united states:" and on the question that the house do agree with the committee of the whole house in the said amendment, it was resolved in the affirmative. a motion was then made and seconded to amend the said bill, by inserting, in lieu of the section stricken out, the following section, to wit: "_be it enacted by the senate and house of representatives of the united states of america in congress assembled_, that there shall be raised, upon the terms and conditions hereafter mentioned, an additional provisional military force, to consist of ---- non-commissioned officers, privates, and musicians, together with a proper proportion of commissioned officers." it passed in the negative--yeas , nays , as follows: yeas.--fisher ames, john beatty, benjamin bourne, david cobb, peleg coffin, jonathan dayton, george dent, samuel dexter, thomas fitzsimons, dwight foster, ezekiel gilbert, benjamin goodhue, james gordon, james hillhouse, william hindman, amasa learned, richard bland lee, francis malbone, william vans murray, theodore sedgwick, william smith, zephaniah swift, silas talbot, george thatcher, uriah tracy, jonathan trumbull, john e. van allen, peter van gaasbeck, jeremiah wadsworth, and john watts. nays.--james armstrong, theodorus bailey, abraham baldwin, thomas blount, thomas p. carnes, gabriel christie, thomas claiborne, abraham clark, joshua coit, isaac coles, william j. dawson, henry dearborn, william findlay, william b. giles, james gillespie, alexander gillon, nicholas gilman, henry glenn, christopher greenup, andrew gregg, william barry grove, daniel heister, john hunter, matthew locke, william lyman, nathaniel macon, james madison, joseph mcdowell, alexander mebane, william montgomery, andrew moore, peter muhlenberg, joseph neville, anthony new, john nicholas, alexander d. orr, josiah parker, francis preston, robert rutherford, thomas scott, john s. sherburne, john smilie, israel smith, thomas tredwell, philip van cortlandt, abraham venable, francis walker, richard winn, benjamin williams, and joseph winston. and then the question being put that the said bill, as amended, be engrossed and read the third time, it passed in the negative. and so the said bill was rejected. friday, may . _tobacco and sugar duties._ the house went into a committee, mr. trumbull in the chair, on the bill for an excise on tobacco, snuff, and refined sugar. in the first section, it was agreed to strike out the words, "tobacco and." this proposed that the word tobacco be struck out in every subsequent part of the bill, so that the duty be confined to the manufacture of snuff. mr. muhlenberg (the speaker) moved to strikeout the second section, "that from and after the ---- day of ---- there be levied, collected, and paid, upon all sugar which shall be refined within the united states, a duty of two cents per pound." he would not trouble the committee with any comments on the excise, enough having already been said on that subject; although he could not forbear mentioning, that in england, where almost every thing was subject to an excise, and where the minister is ever on the watch to discover new articles for that purpose, loaf sugar had never yet been taxed, the committee on ways and means had all the credit of the seasonable discovery. the reason for not attempting an excise on this article was obvious, because the manufacture employed a greater quantity of shipping than any other, they therefore rather wished to encourage than to depress it; the former of which they effectually do, by allowing a generous drawback on exportation of refined sugar, for which the different ports of the continent afford them a constant and ready market. the case was widely different here. the manufacture is yet in its infant state--it has to contend with the old established ones in europe, who have larger capitals and can afford longer credits, whereas we have not only no market to export it to, but even now already, can annually make a quantity more than sufficient for the consumption of the united states. it is true, it appears from the last returns, that upwards of , lbs. of refined sugars were imported last year, which is about the same quantity which two houses might furnish in one year, but it is to be observed, that owing to the high price of raw sugars, some establishments were not worked at all, whilst others did not work above eight or nine months in the year, and i will here, said mr. m., venture to assert, that if this duty of two cents actually takes place, some of those who are now engaged in this difficult and expensive business will abandon it and turn their capitals into other channels. i do not stand alone in this opinion; others, of more experience, join me, and it is founded on the following incontrovertible facts. raw sugars have for several years past been so high, that refined sugars naturally bore an equally high price. this has already lessened the consumption, to a considerable degree, in the united states, and from the present prospect before us, when the french islands are in the hands of the british, the probability is, that they will rather be higher than lower; and if the two cents be added to the present high price of refined sugars, the consumption will still be lessened in the same proportion as the price of the article increases. this observation is founded on facts, which every person concerned in the business has felt, and daily experiences; nay, it can be proved, however strange it may appear, that a less quantity of refined sugar is consumed at present in the united states, than a year or two before the revolution. again, owing to the high price of refined sugars, and which must be still higher when this duty takes place, many even of our opulent families have, in a great degree, abandoned the use of it, and substituted the white havana, or the white east india sugar. i well remember a remarkable instance of this kind which took place not many months ago in this city. a gentleman having imported a considerable quantity of white east india sugar, sold it to the refiners of this place. before the sale was concluded, he reserved a quantity for himself and an opulent friend of his. the consequence was that neither himself nor his friend used half the quantity of refined sugar they had used the year before. permit me to add another circumstance. sugars are higher at present, and from a variety of circumstances must continue to be higher here than in england, and although an additional duty on imported loaf and lump sugar may take place, unless it exceeds what i have yet heard mentioned, they will be able to undersell the manufacturers here, and this from the single circumstance of their being allowed a drawback of _s._ sterling per cwt., for if even a drawback of the same sum was allowed us here, which is not to be expected, it cannot operate, because we have no market for this article. in the west indies, it is well known to be contraband, and to transport it to europe, would be carrying water into the ocean, and even then it could not be accomplished on as low terms as the europeans can afford to do it. one fact more, equally incontrovertible, suffer me to add. by the additional duty on coal, which i am far from disapproving, because i wish to encourage the consumption of our home productions, you have, in fact, laid an additional tax on sugar. every work of this kind consumes annually from , to , bushels. this article was heretofore at the rate of eleven pence or one shilling per bushel; owing to the duty on imported coal, it has now risen to _s._ to _s._ _d._ this naturally enhances the price of the article made in this manufacture, which is already burdened to a considerable degree with taxes or duties. thus, there is a duty on the raw material, a duty on the paper they use, a duty on the twine, a duty on the coal, and, to crown all, a duty is intended on the article produced in this devoted manufacture. if it is thus my friend from connecticut means to do us good, or if this is the decided encouragement and protection my colleague means to yield us, it is such a one as i am sure the manufacturer will not thank him for. sir, i could add that this bill partakes strongly of the nature of a sumptuary law; that in case of a war it will not produce you any revenue, because the supplies of the raw material are too irregular, and no other but imported sugar is refined, which already pays a duty; and that by this duty you not only lessen the consumption, but also increase the number of those who cannot pay for it; but i forbear to trespass any longer on the patience of the committee on this subject. but, mr. chairman, we want money to build our frigates and arsenals, to fortify our ports and harbors, and to release our unfortunate brethren in captivity. we want revenues. if this really be the intention of the committee, and not merely to establish the principle of excise on home manufactures, no one will join more cheerfully in such measures as shall appear most prudent and most likely to obtain the object, and which, in my opinion, will neither injure the commerce of this country, nor in an equal degree the manufactures, nor indeed the poorer sort of the community who consume the article of sugar. by the last returns which i could lay my hands on, it appears that there are annually imported into the united states upwards of twenty-five millions of pounds of sugar, and from the same returns it appears that about four or four and a half millions are exported, which are allowed a drawback of the duty on exportation; thus then there are upwards of twenty millions of pounds annually consumed in the united states. you have, in the late impost bill, imposed an additional duty of one cent per pound on coffee; half that sum additional duty on raw sugar will yield you upwards of , dollars. this then will at once yield you the sum which the committee expected from an excise both on sugar and manufactured tobacco, and will neither injure the merchant, nor in an equal degree the manufacturer, nor indeed the poor; the latter, and in my opinion none but the idle can be so, as well as many others, have long since substituted molasses for all the purposes for which they heretofore used sugar; besides which the american sugar is daily getting more into use, and bids fair to become general, at least at and near the frontiers. when, therefore, it is considered that this manufacture is yet in its infancy in the united states; that it has to contend with the old established ones of europe; that there is no excise on this article in england; that this manufacture employs a great quantity of tonnage; that raw sugars are high here, and comparatively low in europe; that there is a drawback in england, which operates as a bounty, and which from local situations cannot operate, if even granted, with the same advantage here; when it is reduced to a certainty that the duty will operate injuriously on the manufactures here; and when it appears that double the sum can be raised by a trifling additional duty on raw sugar, without any additional expense or inconvenience, and which will effectually remove the evils complained of, i flatter myself the motion will prevail. mr. fitzsimons objected to the proposal of the speaker, for a tax of half a cent per pound on common sugar imported. the unrefined sugar formed a considerable portion of the subsistence of the poor. formerly, the price of it was not more than sixpence, (currency,) but it is now twelve pence per pound. the coffee duty was another, to which mr. f. had felt reluctance, because coffee is an article of universal consumption, and the tax upon it falls where taxes ought not to fall, that is upon the poor; but there is no help for it. he would, if possible, have avoided this tax, for coffee, formerly eleven pence or a shilling per pound, has risen to one shilling and ten pence. mr. f. said, that we are able to lay a heavy enough tax on imported sugar effectually to protect our own sugar refiners. it had been said that the two cents per pound duty would make it requisite for the refiners to augment their capitals. this he could not believe, because the executive gives credit to the manufacturers for the payment of the duty. mr. f. said, that the time was perhaps not distant, when we shall be obliged to seek sugar in the east indies. britain has acquired the west indies, which will increase the difficulties of this country in obtaining it from that part of the world. mr. mcdowell hoped that the section would be struck out. he objected to the principle of the bill. he considered it as highly impolitic to tax the infant manufactures of america. he would rather, if the public treasury could afford it, give a premium for the encouragement of our manufactures, to dissolve the dependence of the united states upon europe. this dependence of ours has repeatedly been urged as a reason why the house ought not to adopt certain commercial regulations and restrictions. some gentlemen had undertaken to prove that the manufacturers would be benefited by such laws, an assertion which he considered as very extraordinary. the manufacturers themselves understood their business best, and thought quite otherwise. this tax will not only alarm those already engaged, but will prevent other men of enterprise and capital from engaging in manufactures, when they find that the moment their business becomes profitable, they are to be taxed. he could not help remarking upon some observations that fell from his friend, (mr. baldwin, from georgia,) when this subject was before the committee some days ago. it had been objected that the bill was not well founded, as it established a new principle; and the member (mr. baldwin) replied, that it was not new, as there was already an excise fixed on ardent spirits. he had opposed that law, but since it was passed, he could not object to the present bill. had the gentleman reflected, he would have seen that there was equal reason for resisting this bill, because it fixed that obnoxious principle more strongly, by giving a further sanction to an american excise. mr. mcd. also considered the tax to be unnecessary. the tax was contemplated on the prospect of a war which has now become less likely, the british having, since the orders of the th of january, relaxed their depredations. further, the tax was unnecessary, because, it was asserted by several very well informed merchants, that the amount of the impost this year would exceed that of the last. on dividing, the motion for striking out the clause was rejected--ayes , nays . wednesday, may . _advance of money to france._ the house again resolved itself into a committee of the whole house on the report of the committee to whom was referred the message of the president of the united states, of the th of march last, relative to an advance of money requested by the minister of the french republic. mr. giles offered the following motion: "_resolved_, that the president of the united states be authorized and requested to apply the proceeds of the loan of three millions of florins, lately obtained in holland, towards the discharge of the debt remaining due to france; or to the protection and defence of the united states, if, in his opinion, the same should be found necessary for that purpose, any appropriation to the contrary notwithstanding." mr. hillhouse was of opinion that, before any payments in advance should be made to the french minister, it was proper to secure the indemnification of our own citizens, who had sustained such immense losses by the detention of their vessels in the ports of the republic, both in europe and the west indies. mr. h. here made a distinction, that if the term stipulated for payment of an instalment to france had actually arrived, he would have made that payment, though they had burnt our ships, and have sought redress in the ordinary way. but when they come forward before the money is due, and make such a requisition, he thought it a fair opportunity to secure the claims of american citizens. mr. nicholas was in favor of the motion. he felt, as an american, that the cause of this country and of france were inseparably connected; and that giving the money to the republic was equivalent to expending it in the service of the united states. he reminded the house of the indelible obligations of america to france. that republic is now reduced to distress, as this country was when supported by the french arms. every principle of humanity, of honor, of gratitude, and of justice, calls upon us to give that nation the most effectual support in our power. mr. fitzsimons.--the americans have applied to m. fauchet, for payment in this country. he has assured them that he cannot give it, but that he will inform the french government of their application. they are satisfied to wait for the reply to the minister, which is expected from europe. mr. ames remarked, that, as the three millions of florins had been loaned in holland for the defence of this country, it would be something worse than imprudence to give it away for any other purpose. the cause of france does not depend on her receiving a million of dollars. she is in a much better situation to give us that sum, than we are to advance it for her. he did not think that, to keep our money to ourselves, and to bestow it upon france, were the same thing, nor did he believe that it would be so considered by the citizens of the united states. he could not approve the motion. mr. gillon thought that, as to the claims of american citizens, a complete answer had been given by the member from pennsylvania. if the merchants themselves are willing to wait for an answer from france, nobody else has any concern with the matter. he rejected the idea of not paying the money to the french until it was due, unless with a restriction in favor of the american claimants. the money due to france had been advanced by her in the time of our utmost distress. it was at present wanted for her own defence. to indulge us, indeed, she had formerly granted a longer time than she was obliged to grant for the repayment. but if necessity compelled her to solicit an abridgment of that indulgence, is it inconsistent with the feelings of honor and generosity, to refuse her such a request? mr. wadsworth was too ill-informed upon this question, to know upon what side he ought to vote. much had been said about the gratitude due from this country to france. we had been grateful, indeed, since we had suffered them for a long time past to plunder our vessels without making a complaint. he stated that the american property seized in the ports of france amounted to one million of dollars, and that taken by her in the west india colonies, to four millions of dollars. much of this property had been paid for in such a way, that the owners did not realize more than twenty-five per cent. of its value. the present application had been made a long time ago, and mr. w. did not suppose that the french minister could, at present, be in any want of the money. since the time when he first sought for it, something had happened which altered the case. the greatest portion of specie in america is now at the command of m. fauchet. there can be, therefore, no pretence for giving away this million of dollars on the plea of necessity. the republic herself possesses, if we are to believe common fame, more cash than all the kings in europe; and, though the story may be very greatly exaggerated, yet make allowance for exaggeration, and still her treasures are very great. no part of her misfortunes can be ascribed to the want of money. matters so standing, he thought that it was our duty to make a halt, and begin to take some care of the interests of our fellow-citizens. as for gratitude towards the republic, he felt as much of that sentiment as those who talked more about it than he did. but he had not learned any good reason why this money should be disposed of in this way; and he could not agree to vote so great a sum where he could not see the need. mr. bourne said, that the purposes for which it had been first asked, had been long since accomplished without it. the transportation of the emigrants of st. domingo to france had been given as a reason for this request, but they were all gone already. mr. sedgwick and mr. goodhue also spoke. the resolution was carried in the committee, and reported to the house, where it was likewise carried; and it was _ordered_, that a bill or bills be brought in pursuant to the said resolution, and that mr. madison, mr. beatty, and mr. heister, do prepare and bring in the same. friday, may . _military establishment._ the bill sent from the senate, entitled "an act to increase the military force of the united states, and to encourage the recruiting service," was read the first time. mr. smilie objected that there must be some other purpose for these troops than any that had been acknowledged; for he could see none. the principle of the bill was wrong. mr. giles said, that the bill ought to be named "a bill authorizing the president _to pass a law_ for raising ten thousand men." in point of principle, it was infinitely worse than the former one, which the house had already rejected, (the one supported by mr. sedgwick.) he hoped that they would not suffer it to go to a second reading. we had made estimates of the expenses of this year, and have been told that the ways and means are not sufficient. yet, in the face of this, to come upon us all at once with the expense of a standing army of ten thousand men was too hard. he trusted that gentlemen who would vote for a second reading would explain the reasons that could induce them to such a measure. the time spent upon such a bill would be perfectly cast away. he was at a loss to discover against whom these ten thousand men were to be employed. mr. hillhouse could not, at this moment, decide whether he ought to vote for this bill or not. he would recommend a committee of the whole to examine its merits. he should think it ungenerous for any gentleman in that house to call for his vote till it had been fully discussed. mr. fitzsimons.--if we were to debate for a week upon it, i am sure that there cannot be one new idea started. the whole argument lies in so narrow a compass that every member may decide on a first hearing. the question is, whether, on account of the particular state of the country at this time, it is proper to intrust the president with a discretionary power of raising an army of ten thousand men? for my own part, i am as ready to decide just now as i ever can be. mr. ames.--if we are to go to war, will it not be a prodigious saving of expense to have all matters ready beforehand? by being prepared two months before the war breaks out, the advantages in economy would be immense, as the price of enlisting men would rise fourfold when it was once known that war was certain. he knew many weak parts in the union that might be attacked and in danger before a body of militia could be ready for effectual service. he was not qualified for details of this sort; but he knew that rhode island, for example, might be taken, and, in a short time, so strongly fortified, that it would be difficult or impossible to retake it. why were we afraid to intrust the president with the power of raising ten thousand men? can any body of men to be raised in this country tread down the substantial yeomanry? this is quite a utopian dread. it is infinitely cheaper to raise and embody an army at leisure, when the storm is seen to be approaching, than all at once, when twenty things must be done at the same time. there is, besides, a material distinction between this bill and the former. the force may be discontinued whenever the legislature thinks proper; nor is it to be raised at all unless the president sees or thinks it necessary. the principle of the bill is, therefore, much less exceptionable than that of the other. to reject a bill on the first reading is a bad practice. mr. a. hoped that the house would guard against it, unless where any thing was grossly improper, and depended on a single principle. but he trusted that the house would, in every common case, set their faces against it. mr. smilie controverted every thing said by mr. ames. he thought that the measure would involve this country in a very useless expense. did we intend to rival the military establishments in europe? the british might be expected to increase their forces in canada in proportion to those of the united states. mr. dayton followed mr. smilie, and said, that the arguments of the member who spoke last, although intended to make a different impression, had convinced him of the impropriety of rejecting this bill upon its first reading. that gentleman had thought proper to enter into the intrinsic merits at this stage of it, when those who favored its principles could have no opportunity of defending or amending the particular parts of it. he had heard the objects of it grossly misrepresented. it had been asserted that the bill contemplated the increase of our military peace establishment to sixteen thousand men. [mr. smilie interrupted mr. dayton by declaring that he had never said or meant any such thing. but the defence of the western territory was to require six thousand men; and these, with the ten thousand to be raised by this bill, would amount, in the whole, to sixteen thousand men.] no such thing (said mr. d.) was to be found in it, and he called upon gentlemen to show upon what such an assertion was founded. he, for one, was of opinion that the interests and safety of the united states might be materially promoted by our vesting the president with the power to raise these men, if war should break out in the recess of congress. who did not believe that such an event was not only possible, but in some degree probable? who would say that, if war should be forced upon us, this would not be considered as a most valuable provision, because we might have this respectable body of troops engaged, equipped, and prepared to act the moment that hostilities should be declared by the constituted authority? he would address himself to the feelings and interests of the member who spoke last, and those similarly circumstanced. they resided in the interior parts of the country, and hence it was that they did not seem to experience such lively sensations at the approach of danger on the eastern frontiers--the sea. what (he asked) was their situation, and what had they to fear in case of an open rupture with great britain? it was easy to foresee that they would be vigorously pressed, not only by those indians which are at present hostile, and by the regular troops in that quarter, but by all the neighboring nations of savages over whom british threats or bribes could have influence. a part of the six nations, too, would probably join the confederacy, and the frontier settlers of virginia, pennsylvania, and new york, would certainly be driven in. with such a corps as the one proposed, an early check might be given to their irruptions, and the war be carried to their towns. on the other hand, what would be the consequence, if, after the president perceives a war inevitable, he is not permitted to make the smallest preparation until he can convene congress? two months must be lost in convening them, owing to the extreme distances of their residence, all which time would be employed by our enemies in increasing their forces, in strengthening their posts, and establishing new ones, and in invading our country. let this discretionary power be given to the president, (with whom much greater had repeatedly been lodged, and had never in any instance been improperly exercised,) and the men might be engaged while the members were collecting, and a small army in readiness to act as congress should by law direct and authorize. no danger could arise from it, because the enlistments of those who might be engaged would be void, unless the legislature, immediately upon their meeting, should confirm them. it had been said, that our reliance should be upon the militia. he had, mr. d. said, as high an opinion of militia as any member in that house, for he had witnessed their exertions and importance in the late war; but could it be said that it would be very convenient or agreeable to them, to be drawn a distance from their own homes, to be employed in taking and garrisoning posts, if it should be deemed advisable to direct operations of that kind? he concluded, with wishing that the bill might be allowed to have a second reading, as constructions had been imputed to it which it certainly would not bear. mr. madison did not accede to the principle of the bill. he did not see any such immediate prospect of a war, as could induce the house to violate the constitution. he thought that it was a wise principle in the constitution, to make one branch of government raise an army, and another conduct it. if the legislature had the power to conduct an army, they might embody it for that end. on the other hand, if the president was empowered to raise an army, as he is to direct its motions when raised, he might wish to assemble it for the sake of the influence to be acquired by the command. the constitution had wisely guarded against that danger on either side. he could not, in the present case, consent to the breaking down of this barrier of public safety. he saw no necessity for it; nor any violent probability, that this country will be speedily invaded by any force, to which the present military establishment cannot make an adequate resistance. let us hear from the minister whom we have just sent to britain, before we take such abrupt and expensive measures. we shall certainly hear from him, at least, before we are invaded. now, if we enter into a calculation of the time requisite for his arrival in britain, for commencing his business, and for sending back an account of what kind of reception he has met with, we shall find that by this period, congress will have met again; or at least, the interval will be so small as to make it not worth while to embrace any measure of this kind. upon the whole, he could not venture to give his consent for violating so salutary a principle of the constitution as that upon which this bill encroached. mr. sedgwick differed from mr. madison. he did not think that, in certain contingencies, war was so distant a prospect. simcoe is going to erect a fort in our territories, and the president has declared that he will repel the attempt. we all know the waste of time and property in the last war, at its commencement, by trying to do the business with militia. the proposal met his approbation, as did the resolution of the president to repel force by force. mr. findlay spoke against the bill. the question was then stated, to wit: "shall the said bill be rejected?" and, after debate thereon, the question being taken, it was resolved in the affirmative--yeas , nays . _advance of money to france._ mr. parker then moved that the house take into consideration the bill for the payment of a certain sum of money to the french republic. the house resolved itself into a committee on this bill, mr. parker in the chair. several amendments were proposed, and several members spoke. mr. giles knew that mr. fauchet was anxious for this money, and spoke of it as necessary for his operations. he did not know whether to-day, to-morrow, or at what time in particular; but in fact the money was needed. he had another remark to make. this loan of three millions of florins had come upon all parts of the house alike unexpectedly. before it was known, we heard of no particular complaints from the treasury, for want of money to raise the fortifications. but now, when the loan was come, the tone was altered, and there was a loud cry of emptiness in the treasury. mr. gillon said, that gentlemen talked of giving this money, as if we were doing a favor to france. is this so? we are sending a new ambassador to that country. a very pretty introduction truly he would have at paris, with our credentials in one hand, and a refusal to pay the debts due to the republic in the other. we have been in need of her assistance before, and we may want it again. the committee made some amendments; the chairman reported them, and the bill finally passed the house. friday, june . _protection of south-western frontier._ the house proceeded to consider the amendments proposed by the senate to the bill, entitled "an act for the more effectual protection of the south-western frontier settlers." mr. giles expressed the utmost surprise at such a proposal. first, it had been projected to raise a standing army of fifteen thousand men, then twenty-five thousand, then ten thousand; and now, when all these schemes had been put to an end, this regiment of eleven hundred and forty men has appeared. proteus never assumed a greater number of shapes than this attempt has done. his jealousy was highly excited by such a steady adherence to an idea so extremely offensive. the people of the united states did not wish to be trodden down by a continental army. how this amendment might sit on the stomachs of some people, he could not say; but, if he were one of the gentlemen who represented the people from whom the requisition for defence had come, the amendment of the senate would sit very badly indeed upon his stomach. mr. nicholas said, that a bill had been wanted to _protect_ the frontiers, but, by this amendment, the bill would _scourge_ them. he wondered at the pertinacity of some people, in adhering to the idea of a standing army. mr. n. enlarged considerably on the question before the house. mr. mcdowell had lived long on the frontiers, and he believed that he understood, from personal experience, what was the proper mode of defending them, as well as perhaps any gentleman on that floor. he was against the amendment, because he knew, from repeated experiments, that regular troops were, in this kind of service, altogether useless. the militia of the frontiers, who knew the country, and whose habits of life made them perfectly acquainted with the character of the enemy whom they had to encounter, were the only proper forces to oppose the indians with success. but why government should burden itself with a useless expense, or the people with a kind of defence which they disliked, mr. mcd. did not know. perhaps there was no part of the union that had behaved so prudently and so pacifically as the citizens on the south-western frontiers. yet indian treaties were constantly broken by the savages themselves. gentlemen who had never been witnesses to the scene, did not feel it, with adequate comprehension or sensibility. a man went to his corn-field, along with his son, who was shot dead by his side. he came home, and found his wife and the rest of his family murdered. circumstances of this kind, and of which mr. mcd. drew an affecting picture, were too dreadful for human patience to support. mr. boudinot thought that the militia could not be kept together for six months, and that it was better to have regular troops. mr. ames replied to mr. giles. it was wrong to say that this was part of a system, and that the twenty-five thousand men had been part of it. he saw no such thing. we have one indian war already, which is enough at a time. those whom we are now to quarrel with, are three times more numerous than those to the north-west. the creeks, cherokees, choctaws, and chickasaws, were, as mr. a. had been informed, fifteen thousand fighting men. he did not think that there were too many indians on the frontier, any more than too many wild beasts. the one might, by skilful management, be rendered as harmless as the other. even the success of an indian war, by extending our frontier, augments the number of our enemies; so that the task is hopeless, and has no end. distance from the seat of government would increase, and with it the charges of defence. he was not one of those who wished to exterminate these poor creatures. he recommended a system of restraint on both sides. he could wish for something as strong as the chinese wall to separate them. when an exasperated militia went out, what were we to expect, but that the first man with a red skin whom they met would be shot? presently you discover that you have been shooting an indian of the wrong nation, while, in the mean time, this whole nation rises and attacks you. the continental troops, as being less exasperated, were less apt to fall into mistakes of this kind. he did not wish the militia to be called out in such numbers as were proposed by the bill when sent up to the senate. he wished, if possible, for a restraint on both parties. he was for the amendment. mr. murray was of the same opinion. it was not once in ten times that, when an indian was killed by a white man, the murderer could be convicted. as to the standing army being an object of alarm, he ridiculed that idea. but, at any rate, it was possible to limit the operations of this regiment of eleven hundred and forty men to the south-western frontier, if gentlemen were afraid of their being marched up and down the country. mr. gillon said, that there was something in this question, just like that some days since, about the galleys. if you do not want them, they shall not be forced upon you. he could not see their use in south carolina. it was a body of militia that was wanted. there are no tumults in south carolina to be repressed by a standing army. the expedition against spain is knocked up. what occasion, then, can there be for them? he feared that this corps was only a part of the old leaven, the gilding of a bad pill he liked this proposal better than the others of the same sort, only because, as the numbers are inferior, the evils are less. mr. g. had no idea of hiring other people to do for us what we can do for ourselves. he had voted against the twenty-five thousand men, and the ten thousand, and he should also vote against the present number. mr. madison said, that he would not enter at large into this subject, but there was one circumstance in the business which struck him as very strange. it was proposed to raise a new corps, at a bounty of twenty dollars. the present army wanted more than the whole number of this corps to fill up its deficiencies, and yet the proposal for completing them had been rejected. thus are we to be at the expense of supporting the skeleton of an army. was it not better to fill up the old corps, than to put ourselves to the inconvenience of raising a new one? mr. mcdowell rose to correct what had fallen from mr. ames, as to the strength of the indian nations on the south-western frontier. the choctaws and chickasaws are, and always have been, friends to the white people, and ready to fight for them. the creeks and cherokees do not, at the most, extend to more than seven or eight thousand men. mr. carnes.--the only use that continental troops can be of is to defend posts; and it has been found, by the experience of several years, that posts do more mischief than service. they are established at a distance of fifteen or twenty miles from each other. the indian parties slip in between them; and the frontier settlers, depending on the protection of the regulars, are not, as they otherwise would be, upon their guard against the savages. the consequence is, that they are frequently murdered; while the only service performed by the continentals is, that when the militia pursue the indians, they are prevented by the former from crossing what is called the line. that is the whole service which they have performed in georgia. in short, against the creeks, they are good for nothing. mr. c. wished that gentlemen would frankly say, once for all, that the georgians did not deserve protection, and then the state would know what was to be done. he insisted on it, that, in georgia, there were improper leanings in favor of the indians. he referred to some persons in office, whom he specified. he believed sincerely that the senate imagined themselves to be acting for the best; but they could not be such competent judges as persons on the spot. within the last seven years, there has not been a single instance of an indian killed by a white man, unless when the indians themselves began the quarrel. during the last ten or twelve years, there had been stolen from georgia, horses to the amount of a hundred thousand dollars. these were often the chief property of poor people, who had nothing else to depend on for supporting their families. gentlemen say that we have one indian war already. but if you have two hands, both in the fire at once, will you pull out one before the other? the creeks are a savage and faithless tribe. some years ago, a treaty was made with them at new york; and this treaty cost, in presents, sixty-one thousand dollars. well, before the chiefs got home, a fresh set of murders were committed. a set of commissioners were next sent, and this embassy cost perhaps a hundred and fifty thousand dollars more. gentlemen might talk as they thought fit about indians; for his own part, he would not give the life of one white man for those of fifty indians. the militia had been always successful against them, and the regulars had always been beaten; this showed the futility of the present amendment from the senate. of the successes of the militia, he gave some striking instances, where they had defeated three or four times their own number. as an evidence of the improper leaning on behalf of the indians, mr. c. adverted to what had just happened in georgia. a gang of savages stole some horses. lieutenant hay, with a party of dragoons, pursued them, and fell into an ambuscade, where mr. hay and two men were killed. this was the way that the creeks kept a peace. soon after, an indian, being found in the state, was wounded; and in the correspondence read the other day to the house, it was so stated, as if the white people were to blame. it made every drop of blood in his heart boil, to hear what he heard in this city as to the character and conduct of his constituents. as a representative of georgia, he _demanded_ effectual aid for that state. if the house did not choose to grant it, he warned them that the georgians would take measures for themselves. it was needless to speak of economy, after squandering such vast sums as he had mentioned, in the purchase of treaties that were never kept. he was against the amendment of the senate. mr. dayton rose to contradict one assertion, which had fallen from the gentleman, viz: that the regulars were always beaten by the indians. if gentlemen exercised their memories, or attended to historical facts, they would see the contrary. general sullivan had entered the country of the six nations, had defeated them, and destroyed their towns, and since that time they had been looked upon as a subdued people. mr. d. was himself in the army on that expedition, and a witness to the success of the regulars. he was for the amendment. the question was put that the house do concur with the senate in the said amendment, and passed in the negative--yeas , nays , as follows: yeas.--fisher ames, david cobb, peleg coffin, joshua coit, jonathan dayton, george dent, thomas fitzsimons, dwight foster, ezekiel gilbert, henry glenn, james gordon, william hindman, henry latimer, amasa learned, francis malbone, william vans murray, theodore sedgwick, william smith, zephaniah swift, uriah tracy, jonathan trumbull, john e. van allen, peter van gaasbeck, peleg wadsworth, jeremiah wadsworth, and john watts. nays.--theodorus bailey, abraham baldwin, john beatty, thomas blount, thomas p. carnes, thomas claiborne, isaac coles, william j. dawson, henry dearborn, william findlay, william b. giles, james gillespie, alexander gillon, nicholas gilman, andrew gregg, samuel griffin, william barry grove, daniel heister, william lyman, nathaniel macon, james madison, joseph mcdowell, alexander mebane, william montgomery, andrew moore, joseph neville, john nicholas, alexander d. orr, josiah parker, francis preston, robert rutherford, thomas scott, john smilie, jeremiah smith, thomas sprigg, thomas tredwell, philip van cortlandt, abraham venable, francis walker, benjamin williams, richard winn, and joseph winston. _ordered_, that the further consideration of the said amendments be put off till to-morrow. saturday, june . mr. thatcher moved that such members as had received their pay up to monday next, and then absented themselves, should be ordered next session to return as much as they had received for the days when absent. the motion was ordered to lie on the table. monday, june . lemuel benton (from south carolina) appeared, produced his credentials, and took his seat in the house; the oath to support the constitution of the united states being first administered to him by mr. speaker, according to law. mr. benton (from south carolina) informed the speaker, that he had been prevented by indisposition in his family, and a long voyage, from attending his duty sooner in that house. this was the day of adjournment, and he wished to inform the house, that he should decline receiving pay for his travelling expenses, or attendance. he was not willing to qualify himself this day, unless it could be noted on the journals that he had refused any compensation. he took the oath. a message from the senate informed the house, that the senate having completed the legislative business before them, are now about to adjourn until the first monday in november next: whereupon, mr. speaker adjourned the house until the first monday in november next.[ ] third congress.--second session. held in the city of philadelphia, november , . proceedings in the senate. monday, november , . the following senators appeared, and took their seats: ralph izard, president _pro tem._, from south carolina. john langdon and samuel livermore, from new hampshire. george cabot, from massachusetts. oliver ellsworth, from connecticut. theodore foster, from rhode island. moses robinson, from vermont. rufus king, from new york. robert morris, from pennsylvania. john brown, from kentucky. benjamin hawkins, from north carolina. the number assembled not being sufficient to constitute a quorum to do business, the senate adjourned to o'clock to-morrow morning. tuesday, november . the senate assembled: present as yesterday. john vining, from the state of delaware, attended. monday, november . the senate assembled: present as on the th; and john adams, vice president of the united states and president of the senate, attended. alexander martin, from the state of north carolina, and james jackson, from the state of georgia, severally attended. the number assembled not being sufficient to constitute a quorum to do business, the senate adjourned to o'clock to-morrow morning. tuesday, november . the senate assembled: present as yesterday; and william bradford, from the state of rhode island, attended. monday, november . the senate assembled: present as on friday. the number assembled not being sufficient to form a quorum, the vice president was requested by the senators present, to write a letter to each of the absent senators, stating that a fortnight has already elapsed without the formation of a senate, and urging their immediate attendance as necessary to enable congress to commence the business of the session. the senate adjourned to o'clock to-morrow morning. tuesday, november . aaron burr, from new york, appeared to-day, which formed a quorum, and enabled the senate to proceed to business. messages were accordingly exchanged between the two houses, and a joint committee was appointed to wait on the president of the united states, to inform him that a quorum of the two houses is assembled, and are ready to receive any communications that he may be pleased to make to them. mr. izard, from the joint committee appointed for the purpose, reported that the president would meet the two houses in the representatives' chamber at o'clock to-morrow. wednesday, november . john edwards, from kentucky, this day attended. the senate agreeably to appointment attended in the house of representatives, in order to receive the president's communications; and, on their return, the president's speech was read, as follows: _fellow-citizens of the senate, and of the house of representatives:_ when we call to mind the gracious indulgence of heaven, by which the american people became a nation; when we survey the general prosperity of our country, and look forward to the riches, power, and happiness, to which it seems destined; with the deepest regret do i announce to you, that, during your recess, some of the citizens of the united states have been found capable of an insurrection. it is due, however, to the character of our government, and to its stability, which cannot be shaken by the enemies of order, freely to unfold the course of this event. during the session of the year one thousand seven hundred and ninety, it was expedient to exercise the legislative power, granted by the constitution of the united states, "to lay and collect excises." in a majority of the states, scarcely an objection was heard to this mode of taxation. in some, indeed, alarms were at first conceived, until they were banished by reason and patriotism. in the four western counties of pennsylvania, a prejudice, fostered and embittered by the artifice of men, who labored for an ascendency over the will of others, by the guidance of their passions, produced symptoms of riot and violence. it is well known, that congress did not hesitate to examine the complaints which were presented; and to relieve them, as far as justice dictated, or general convenience would permit. but the impression which this moderation made on the discontented, did not correspond with what it deserved. the arts of delusion were no longer confined to the efforts of designing individuals. the very forbearance to press prosecutions was misinterpreted into a fear of urging the execution of the laws; and associations of men began to denounce threats against the officers employed. from a belief, that, by a more formal concert, their operation might be defeated, certain self-created societies assumed the tone of condemnation. hence, while the greater part of pennsylvania itself were conforming themselves to the acts of excise, a few counties were resolved to frustrate them. it was now perceived, that every expectation from the tenderness which had been hitherto pursued was unavailing, and that further delay could only create an opinion of impotency or irresolution in the government. legal process was therefore delivered to the marshal against the rioters and delinquent distillers. no sooner was he understood to be engaged in this duty, than the vengeance of armed men was aimed at _his_ person, and the person and property of the inspector of the revenue. they fired upon the marshal, arrested him, and detained him, for some time as a prisoner. he was obliged, by the jeopardy of his life, to renounce the service of other process, on the west side of the alleghany mountain; and a deputation was afterwards sent to him to demand a surrender of that which he _had_ served. a numerous body repeatedly attacked the house of the inspector, seized his papers of office, and finally destroyed by fire his buildings and whatsoever they contained. both of these officers, from a just regard to their safety, fled to the seat of government; it being avowed, that the motives to such outrages were to compel the resignation of the inspector; to withstand by force of arms the authority of the united states; and thereby to extort a repeal of the laws of excise, and an alteration in the conduct of government. upon the testimony of these facts, an associate justice of the supreme court of the united states notified to me that "in the counties of washington and alleghany, in pennsylvania, laws of the united states were opposed, and the execution thereof obstructed, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshal of that district." on this call, momentous in the extreme, i sought and weighed what might best subdue the crisis. on the one hand, the judiciary was pronounced to be stripped of its capacity to enforce the laws; crimes, which reached the very existence of social order, were perpetrated without control; the friends of government were insulted, abused, and overawed into silence, or an apparent acquiescence; and, to yield to the treasonable fury of so small a portion of the united states would be to violate the fundamental principle of our constitution, which enjoins that the will of the majority shall prevail. on the other, to array citizen against citizen, to publish the dishonor of such excesses, to encounter the expense, and other embarrassments, of so distant an expedition, were steps too delicate, too closely interwoven with many affecting considerations, to be lightly adopted. i postponed, therefore, the summoning the militia immediately into the field; but, i required them to be held in readiness, that, if my anxious endeavors to reclaim the deluded, and to convince the malignant of their danger, should be fruitless, military force might be prepared to act, before the season should be too far advanced. my proclamation of the th of august last was accordingly issued, and accompanied by the appointment of commissioners, who were charged to repair to the scene of insurrection. they were authorized to confer with any bodies of men or individuals. they were instructed to be candid and explicit in stating the sensations which had been excited in the executive, and his earnest wish to avoid a resort to coercion; to represent, however, that, without submission, coercion _must_ be the resort; but to invite them, at the same time, to return to the demeanor of faithful citizens, by such accommodations as lay within the sphere of executive power. pardon, too, was tendered to them by the government of the united states, and that of pennsylvania, upon no other condition than a satisfactory assurance of obedience to the laws. although the report of the commissioners marks their firmness and abilities, and must unite all virtuous men, by showing that the means of conciliation have been exhausted, all of those who had committed or abetted the tumults did not subscribe the mild form which was proposed as the atonement; and the indications of a peaceable temper were neither sufficiently general nor conclusive to recommend or warrant the further suspension of the march of the militia. thus, the painful alternative could not be discarded. i ordered the militia to march--after once more admonishing the insurgents, in my proclamation of the th of september last. it was a task too difficult to ascertain with precision the lowest degree of force competent to the quelling of the insurrection. from a respect, indeed, to economy, and the ease of my fellow-citizens belonging to the militia, it would have gratified me to accomplish such an estimate. my very reluctance to ascribe too much importance to the opposition, had its extent been accurately seen, would have been a decided inducement to the smallest efficient numbers. in this uncertainty, therefore, i put into motion fifteen thousand men, as being an army which, according to all human calculation, would be prompt and adequate in every view, and might, perhaps, by rendering resistance desperate, prevent the effusion of blood. quotas had been assigned to the states of new jersey, pennsylvania, maryland, and virginia; the governor of pennsylvania having declared, on this occasion, an opinion which justified a requisition to the other states. among the discussions which may arise from this aspect of our affairs, and from the documents which will be submitted to congress, it will not escape their observation, that not only the inspector of the revenue, but other officers of the united states in pennsylvania, have, from their fidelity in the discharge of their functions, sustained material injuries to their property. the obligation and policy of indemnifying them are strong and obvious. it may also merit attention, whether policy will not enlarge this provision to the retribution of other citizens, who, though not under the ties of office, may have suffered damage by their generous exertions for upholding the constitution and the laws. the amount, even if all the injured were included, would not be great; and, on future emergencies, the government would be amply repaid by the influence of an example, that he who incurs a loss in its defence, shall find a recompense in its liberality. while there is cause to lament that occurrences of this nature should have disgraced the name, or interrupted the tranquillity of any part of our community, or should have diverted, to a new application, any portion of the public resources, there are not wanting in real and substantial consolations for the misfortune. it has demonstrated, that our prosperity rests on solid foundations; by furnishing an additional proof, that my fellow-citizens understand the true principles of government and liberty; that they feel their inseparable union; that notwithstanding all the devices which have been used to sway them from their interest and duty, they are now as ready to maintain the authority of the laws against licentious invasions, as they were to defend their rights against usurpation. it has been a spectacle, displaying to the highest advantage the value of republican government, to behold the most and the least wealthy of our citizens standing in the same ranks, as private soldiers, pre-eminently distinguished by being the army of the constitution; undeterred by a march of three hundred miles over rugged mountains, by the approach of an inclement season, or by any other discouragement. nor ought i to omit to acknowledge the efficacious and patriotic co-operation which i have experienced from the chief magistrates of the states to which my requisitions have been addressed. to every description of citizens, indeed, let praise be given. but let them persevere in their affectionate vigilance over that precious depository of american happiness, the constitution of the united states. let them cherish it, too, for the sake of those who, from every clime are daily seeking a dwelling in our land. and when, in the calm moments of reflection, they shall have retraced the origin and progress of the insurrection, let them determine whether it has not been fomented by combinations of men, who, careless of consequences, and disregarding the unerring truth that those who rouse cannot always appease a civil convulsion, have disseminated, from an ignorance or perversion of facts, suspicions, jealousies, and accusations, of the whole government. the intelligence from the army under the command of general wayne is a happy presage to our military operations against the hostile indians north of the ohio. from the advices which have been forwarded, the advance which he has made must have damped the ardor of the savages, and weakened their obstinacy in waging war against the united states. and yet, even at this late hour, when our power to punish them cannot be questioned, we shall not be unwilling to cement a lasting peace, upon terms of candor, equity, and good neighborhood. towards none of the indian tribes have overtures of friendship been spared. the creeks, in particular, are covered from encroachment by the interposition of the general government, and that of georgia. from a desire, also, to remove the discontents of the six nations, a settlement meditated at presqu'isle, on lake erie, has been suspended; and an agent is now endeavoring to rectify any misconception into which they may have fallen. but i cannot refrain from again pressing upon your deliberations the plan which i recommended at the last session, for the improvement of harmony with all the indians within our limits, by the fixing and conducting of trading houses upon the principles then expressed. _gentlemen of the house of representatives:_ the time which has elapsed since the commencement of our fiscal measures has developed our pecuniary resources, so as to open the way for a definitive plan for the redemption of the public debt. it is believed that the result is such as to encourage congress to consummate this work without delay. nothing can more promote the permanent welfare of the nation, and nothing would be more grateful to our constituents. indeed, whatsoever is unfinished of our system of public credit, cannot be benefited by procrastination; and, as far as may be practicable, we ought to place that credit on grounds which cannot be disturbed, and to prevent that progressive accumulation of debt, which must ultimately endanger all governments. an estimate of the necessary appropriations, including the expenditures into which we have been driven by the insurrection, will be submitted to congress. g. washington. united states, _november_ , . _ordered_, that messrs. king, ellsworth, and izard, be a committee to report the draft of an address to the president of the united states, in answer to his speech this day to both houses of congress. thursday, november . mr. king, from the committee, reported an address to the president of the united states, in reply to his speech of the th to both houses of congress, which was read. _ordered_, that to-morrow be assigned to take this report into consideration. friday, november . the senate took into consideration the report of the committee, in reply to the speech of the president of the united states to both houses of congress at the opening of the session; and it was agreed to consider the report in paragraphs. on motion of mr. burr, seconded by mr. jackson, to expunge these words: "our anxiety, arising from the licentious and open resistance to the laws in the western counties of pennsylvania, has been increased by the proceedings of certain self-created societies, relative to the laws and administration of the government; proceedings, in our apprehension, founded in political error, calculated, if not intended, to disorganize our government, and which, by inspiring delusive hopes of support, have been influential in misleading our fellow-citizens in the scene of insurrection:" it passed in the negative. on motion to amend the paragraph respecting the army, under the command of general wayne, to be read as follows: "the pleasure with which we learn the success of the western army under the command of general wayne, is enhanced by the hope, that their victories will lay the foundation of a just and durable peace with the _indian_ tribes:" it passed in the negative. on motion to strike out of the paragraph respecting the western army, the words, "general and," it passed in the negative. and the several paragraphs reported by the committee being agreed to, the report was adopted, as follows: sir: we receive with pleasure your speech to the two houses of congress. in it we perceive renewed proofs of that vigilant and paternal concern for the prosperity, honor, and happiness of our country, which has uniformly distinguished your past administration. our anxiety arising from the licentious and open resistance to the laws in the western counties of pennsylvania, has been increased by the proceedings of certain self-created societies, relative to the laws and administration of the government; proceedings, in our apprehension, founded in political error, calculated, if not intended, to disorganize our government, and which, by inspiring delusive hopes of support, have been influential in misleading our fellow-citizens in the scene of insurrection. in a situation so delicate and important, the lenient and persuasive measures which you adopted merit and receive our affectionate approbation. these failing to produce their proper effect, and coercion having become inevitable, we have derived the highest satisfaction from the enlightened patriotism and animating zeal with which the citizens of new jersey, pennsylvania, maryland, and virginia, have rallied around the standard of government, in opposition to anarchy and insurrection. our warm and cordial acknowledgments are due to you, sir, for the wisdom and decision with which you arrayed the militia, to execute the public will; and to them, for the disinterestedness and alacrity with which they obeyed your summons. the example is precious to the theory of our government, and confers the brightest honor upon the patriots who have given it. we shall readily concur in such farther provisions for the security of internal peace and a due obedience to the laws, as the occasion manifestly requires. the effectual organization of the militia, and a prudent attention to the fortifications of our ports and harbors, are subjects of great national importance, and together with the other measures you have been pleased to recommend, will receive our deliberate consideration. the success of the troops under the command of general wayne cannot fail to produce essential advantages. the pleasure with which we acknowledge the merits of that gallant general and army, is enhanced by the hope that their victories will lay the foundation of a just and durable peace with the indian tribes. at a period so momentous in the affairs of nations, the temperate, just, and firm policy that you have pursued, in respect to foreign powers, has been eminently calculated to promote the great and essential interest of our country, and has created the fairest title to the public gratitude and thanks. john adams, _vice president of the united states, and president of the senate_. _ordered_, that the committee who prepared the address wait on the president of the united states, and desire him to acquaint the senate at what time and place it will be most convenient for him that it should be presented. mr. king reported, from the committee, that they had waited on the president of the united states, and that he would receive the address of the senate to-morrow at o'clock, at his own house. saturday, november . the senate waited on the president of the united states, and the vice president, in their name, presented the address agreed to on the st instant. to which the president of the united states was pleased to make the following reply: _gentlemen:_ among the occasions which have been afforded for expressing my sense of the zealous and steadfast co-operation of the senate, in the maintenance of government, none has yet occurred more forcibly demanding my unqualified acknowledgments than the present. next to the consciousness of upright intentions, it is the highest pleasure to be approved by the enlightened representatives of a free nation. with the satisfaction, therefore, which arises from an unalterable attachment to public order, do i learn, that the senate discountenance those proceedings, which would arrogate the direction of our affairs, without any degree of authority derived from the people. it has been more than once the lot of our government to be thrown into new and delicate situations; and of these, the insurrection has not been the least important. having been compelled at length to lay aside my repugnance to resort to arms, i derive much happiness from being confirmed by your judgment in the necessity of decisive measures, and from the support of my fellow-citizens of the militia, who were the patriotic instruments of that necessity. with such demonstrations of affection for our constitution; with an adequate organization of the militia; with the establishment of necessary fortifications; with a continuance of those judicious and spirited exertions which have brought victory to our western army; with a due attention to public credit and an unsullied honor towards all nations; we may meet, under every assurance of success, our enemies from within and from without. g. washington. the senate returned to their own chamber, and then adjourned. monday, november . john rutherford, from new jersey, attended. wednesday, november . john henry, from maryland, and james ross, from pennsylvania, severally attended. friday, november . stephen r. bradley, from vermont, and caleb strong, from massachusetts, severally attended. tuesday, december . richard potts, from maryland, attended to-day. thursday, december . frederick frelinghuysen, from new jersey, attended. monday, december . stephen mix mitchell, from connecticut, attended to-day. monday, december . henry tazewell, appointed a senator by the state of virginia, in the place of john taylor, resigned, produced his credentials, which were read, and the vice president administered to him the oath required by law, and he took his seat in the senate. friday, february . the vice president being absent, the senate proceeded to the election of a president _pro tempore_, as the constitution provides, and samuel livermore was duly elected; who, declining the appointment, the senate proceeded to the election of henry tazewell to that office. _ordered_, that the secretary wait on the president of the united states, and notify him of the election of mr. tazewell to be president of the senate _pro tempore_. saturday, february . henry latimer, from the state of delaware, in place of george read, resigned, attended, and produced his credentials, which were read; and, the oath prescribed by law being administered, he took his seat in the senate. james gunn, from georgia, attended. tuesday, march . mr. burr laid before the senate a motion, as follows: "_resolved by the senate and house of representatives of the united states of america in congress assembled, two-thirds of both houses concurring_, that the following article be proposed to the legislatures of the several states, as an amendment to the constitution of the united states, which, when ratified by three-fourths of the said legislatures, shall be valid as part of the said constitution, to wit: "that the term for which the members of the senate and house of representatives of the next congress are or shall be chosen shall expire on the first day of june next following the third day of march, on which it would have expired if this amendment to the constitution had not been adopted." _ordered_, that this motion lie for consideration. tuesday evening, march . a message from the house of representatives informed the senate that the house, having finished the business of the session, are about to adjourn. _ordered_, that messrs. izard and morris be a committee, jointly, with such committee as the house of representatives may appoint on their part, to wait on the president of the united states, and inform him that congress is ready to adjourn without day, unless he may have any further communications to make. _ordered_, that the secretary acquaint the house of representatives therewith, and desire the appointment of a committee on their part. a message from the house of representatives informed the senate that the house have appointed a joint committee on their part to wait on the president of the united states, and inform him that congress is ready to adjourn. mr. izard reported, from the joint committee, that they had waited on the president of the united states, who informed them that he had no further communications to make to congress during this session. whereupon, it was _resolved_, that the senate adjourn without day. executive journal. the tenth session of the senate of the united states, convened on monday, june , . monday, june , . pursuant to a call from the president of the united states, in a circular addressed to the several senators, informing each that "certain matters touching the public good required that the senate should be convened on the above day, at the senate chamber, in philadelphia, then and there to receive and deliberate on such communications as he shall then make to them:" the senate assembled accordingly. present. john adams, vice president of the united states and president of the senate. _from new hampshire._--john langdon and samuel livermore. _from massachusetts._--caleb strong and george cabot. _from vermont._--moses robinson. from _connecticut_.--oliver ellsworth and jonathan trumbull. _from rhode island._--theodore foster and william bradford. _from new york._--rufus king and arron burr. _from new jersey._--john rutherford. _from pennsylvania._--james ross and william bingham. _from delaware._--henry latimer. _from maryland._--richard potts. _from virginia._--henry tazewell and stevens thomson mason. _from kentucky._--john brown and humphrey marshall. _from north carolina._--alexander martin and timothy bloodworth. _from south carolina._--jacob read. _from georgia._--james jackson. _ordered_, that mr. strong and mr. langdon be a committee to wait on the president of the united states, and notify him that a quorum of the senate is assembled, and ready to receive any communications he may be pleased to make. mr. strong reported, from the committee, that they had waited on the president of the united states, and that he informed them he would make some communications to the senate immediately. tuesday, june . pierce butler, from the state of south carolina, and frederick frelinghuysen, from the state of new jersey, severally attended. james gunn, from the state of georgia, produced his credentials, and, the usual oath being administered, took his seat in the senate. friday, june . john henry, from the state of maryland, produced his credentials, and, the usual oath being administered, he took his seat in the senate. saturday, june . elijah paine, from the state of vermont, produced his credentials, and the usual oath being administered, he took his seat in the senate. monday, june . john vining, from the state of delaware, attended. the senate resumed the consideration of the treaty, communicated by the president of the united states, with his message of the th instant: and, after progress, the senate adjourned. wednesday, june . the senate resumed the consideration of the treaty, communicated with the message of the president of the united states, of the th instant, and after discussion on the remaining articles, a motion was made and seconded, that it he "_resolved_, (two-thirds of the senate concurring therein,) that they do consent to, and advise the president of the united states, to ratify the treaty of amity, commerce, and navigation, between his britannic majesty and the united states of america, concluded at london, the th day of november, , on condition that there be added to the said treaty an article whereby it shall be agreed to suspend the operation of so much of the th article as respects the trade which his said majesty thereby consents may be carried on between the united states and his islands in the west indies, in the manner, and on the terms and conditions therein specified. "and the senate recommend to the president, to proceed, without delay, to further friendly negotiations with his majesty, on the subject of the said trade, and of the terms and conditions in question." on motion, it was agreed, that this motion lie for consideration until to-morrow.[ ] monday, june . the vice president laid before the senate a letter from the secretary for the department of state, with a "list of the negroes, to which the correspondence between the commander-in-chief of the american army and sir guy carleton relates;" which was read, and, with the document referred to, ordered to lie on the table. wednesday, june . _deported slaves of the revolution._ a motion was made by mr. gunn, seconded by mr. read, as follows: "whereas it is alleged by divers american citizens, that negroes, and other property, to a considerable amount, were carried away, in contravention of the seventh article of the treaty of peace between the united states and his britannic majesty: "_resolved_, that the senate recommend to the president of the united states, to renew, by friendly negotiation with his said majesty, the claims of the american citizens, to compensation for the negroes and other property, so alleged to have been carried away; and in case the disagreement that has hitherto existed, relative to the construction in this behalf of the said article, cannot be removed by candid and amicable discussions, that it be proposed, as a measure calculated to cherish and confirm the good understanding and friendship which it is desired may prevail between the two countries, that commissioners be appointed, in the manner directed by the sixth article of the treaty of amity, commerce, and navigation, lately concluded between the united states and his said majesty, with authority to ascertain and decide, as well the interpretation of the said seventh article in this respect, as likewise the amount of the losses sustained by the alleged violation of the same. "but the senate are of opinion that the negotiation on this subject should be distinct from, and subsequent to that recommended by their act of the th instant, respecting the trade and intercourse between the united states and his said majesty's islands in the west indies." and, after debate, it was agreed that this motion lie until to-morrow for consideration. thursday, june . the motion made by mr. gunn, as last recited, and yesterday referred to this day for consideration, was resumed. on motion to divide this motion, and to agree to all that is contained from the word "_whereas_," to the word "_same_," at the end of the first paragraph of the resolution inclusive, it passed in the affirmative--yeas , nay , as follows: yeas.--messrs. bingham, bloodworth, bradford, brown, burr, butler, cabot, ellsworth, foster, frelinghuysen, gunn, jackson, king, langdon, latimer, livermore, marshall, martin, paine, potts, read, robinson, boss, rutherford, strong, trumbull, and vining. mr. tazewell voted in the negative.[ ] the yeas and nays were required by one-fifth of the senators present. those who voted in the affirmative, are--messrs. bingham, bradford, butler, cabot, ellsworth, foster, frelinghuysen, gunn, king, latimer, livermore, paine, potts, read, ross, rutherford, strong, trumbull, and vining. these who voted in the negative, are--messrs. bloodworth, brown, burr, jackson, langdon, marshall, martin, mason, robinson, and tazewell. yeas , nays . so the question of reconsideration was lost, there not being two-thirds of the senators present in the affirmative. on motion, by mr. rutherford, for the question on the resolution as amended, to wit: "whereas, it is alleged by divers american citizens, that negroes and other property, to a considerable amount, were carried away in contravention of the th article of the treaty of peace between the united states and his britannic majesty: "_resolved_, that the senate recommend to the president of the united states to renew, by friendly negotiation with his said majesty, the claims of the american citizens to compensation for the negroes and other property so alleged to have been carried away; and in case the disagreement, that has hitherto existed relative to the construction in this behalf of the said article, cannot be removed by candid and amicable discussions, that it be proposed, as a measure calculated to cherish and confirm the good understanding and friendship which it is desired may prevail between the two countries, that commissioners be appointed in the manner directed by the th article of the treaty of amity, commerce, and navigation lately concluded between the united states and his said majesty, with authority to ascertain and decide, as well the interpretation of the said th article, in this respect, as likewise the amount of the losses sustained by the alleged violation of the same." it passed in the negative--yeas , nays , as follows: yeas.--messrs. bloodworth, brown, butler, burr, gunn, jackson, langdon, marshall, martin, mason, paine, read, robinson, and tazewell. nays.--messrs. bingham, bradford, cabot, ellsworth, foster, frelinghuysen, king, latimer, livermore, potts, ross, rutherford, strong, trumbull, and vining. friday, june . mr. cabot reported that the president of the united states had no further communications to make to the senate, than his hearty wishes that, in a speedy meeting with their friends, they may enjoy every felicity. on motion, _ordered_, that there be paid by the secretary of the senate, out of the moneys appropriated for the contingent expenses of the senate, to james mathers, doorkeeper, three dollars per day, and to cornelius maxwell, assistant doorkeeper, two dollars per day, as compensation for their respective attendance during this special session of the senate, over and above their stated allowance. on motion, the senate adjourned without day. attest: sam. a. otis, _secretary_. third congress.--second session. proceedings and debates in the house of representatives. monday, november , . the following members appeared, and took their seats, to wit: _from new hampshire._--nicholas gilman, jeremiah smith, and paine wingate. _from massachusetts._--fisher ames, david cobb, henry dearborn, dwight foster, benjamin goodhue, samuel holten, george thatcher, peleg wadsworth, and artemas ward. _from connecticut._--joshua coit, amasa learned, zephaniah swift, uriah tracy, and jonathan trumbull. _from vermont._--israel smith. _from new york._--theodorus bailey, philip van cortlandt, and john watts. _from new jersey._--john beatty and elias boudinot. _from pennsylvania._--thomas hartley, john wilkes kittera, frederick a. muhlenberg, (speaker,) and peter muhlenberg. _from maryland._--gabriel christie and george dent. _from virginia._--isaac coles, samuel griffin, john heath, joseph neville, anthony new, josiah parker, and robert rutherford. _from kentucky._--christopher greenup. _from north carolina._--thomas blount, william johnston dawson, nathaniel macon, and alexander mebane. _from south carolina._--william smith. _from georgia._--abraham baldwin. a quorum of the whole number not being present, the house adjourned until to-morrow. tuesday, november . several other members, to wit: from rhode island, francis malbone; from new york, henry glenn, james gordon, and john e. van allen; from new jersey, jonathan dayton; from pennsylvania, thomas fitzsimons; from delaware, henry latimer; from maryland, william vans murray; from virginia, george hancock, richard bland lee, james madison, andrew moore, francis preston, and francis walker; and from north carolina, matthew locke, appeared, and took their seats in the house. and a quorum, consisting of a majority of the whole number, being present, _ordered_, that a message be sent to the senate, to inform them that a quorum of this house is assembled, and ready to proceed to business; and that the clerk of this house do go with said message. wednesday, november . several other members, to wit: from new hampshire, john s. sherburne; from massachusetts, william lyman; from connecticut, james hillhouse; from vermont, nathaniel niles; from new york, ezekiel gilbert; from maryland, william hindman; from virginia, thomas claiborne; and from georgia, thomas p. carnes, appeared, and took their seats in the house. notice was received that the senate had not yet been able to form a quorum. upon this, mr. dayton moved that a committee shall be appointed to examine the business left unfinished last session, and report to the house. he saw no reason for losing time by waiting for the senate. mr. goodhue objected to the motion as improper. mr. dayton challenged the gentleman to point out wherein the impropriety consisted. for two or three weeks the house of representatives would have full employment, while the senate, in reality, had none. he was positive as to the legality and expediency of proceeding. the speaker put the question, and the ayes and noes were equal, each being twenty-five. the speaker then informed the house that, as a quorum of their number was not present, it would be requisite to adjourn. the house rose immediately, after adjourning till to-morrow. thursday, november . two other members, to wit: from massachusetts, peleg coffin, and from virginia, john nicholas, appeared, and took their seats in the house. friday, november . several other members, to wit: from pennsylvania, james armstrong and william montgomery; from virginia, william b. giles; from north carolina, joseph winston; and from south carolina, john hunter, appeared, and took their seats in the house. on motion, _resolved_, that a standing committee of elections be appointed, whose duty it shall be to examine and report upon the certificates of election, or other credentials of the members returned to serve in this house, and to take into their consideration all such matters as shall or may come in question, and be referred to them by the house, touching returns and elections, and to report their proceedings with their opinion thereupon, to the house. and a committee was appointed of mr. dayton, mr. hillhouse, mr. sherburne, mr. dent, mr. lee, mr. macon, and mr. hunter. _ordered_, that the letter from the governor of maryland, together with the return of the election of gabriel duvall, to serve as one of the members of this house for the said state, in the room of john francis mercer, who has resigned his seat, which was laid before the house at the last session, be referred to the said committee of elections. monday, november . several other members, to wit: from new york, thomas tredwell; from new jersey, lambert cadwalader; from pennsylvania, john smilie; from north carolina, william barry grove and joseph mcdowell; and from south carolina, richard winn, appeared, and took their seats in the house. the speaker informed the house that the senate had not yet been able to make a quorum. fifteen members only appeared. one more was necessary. tuesday, november . two other members, to wit: from massachusetts, shearjashub bourne, and from new york, peter van gaasbeck, appeared, and took their seats in the house. the speaker informed the house that one senator was yet wanting to the making of a quorum. [the senate consists of thirty members, of whom only fifteen have yet (tuesday) made their appearance; of consequence, a majority is wanting. the vice president has, it is true, arrived, but he is not, strictly speaking, a senator. he does not give a vote in questions that come before the senate, unless the voices on a division are equal.] the speaker laid before the house a letter from james white, enclosing the credentials of his appointment as a representative of the territory of the united states, south of the river ohio, in the congress of the united states, according to the ordinance of congress of the thirteenth of july, one thousand seven hundred and eighty-seven; which were read, and ordered to be referred to mr. baldwin, mr. gilbert, mr. walker, mr. swift, and mr. jeremiah smith, with instructions to examine the matter thereof, and report the same, with their opinion thereupon, to the house. wednesday, november . another member, to wit, carter b. harrison, from virginia, appeared, and took his seat in the house. thursday, november . two other members, to wit: andrew gregg and daniel heister, from pennsylvania, appeared, and took their seats in the house. friday, november . several other members, to wit: from massachusetts, samuel dexter; from virginia, abraham venable; and from kentucky, alexander d. orr, appeared, and took their seats in the house. monday, november . two other members, to wit: from rhode island, benjamin bourne, and from south carolina, andrew pickens, appeared, and took their seats in the house. _delegate south of the ohio._ the house resolved itself into a committee of the whole house on the report of the committee to whom was referred the letter from james white, together with the credentials of his appointment as a representative of the territory of the united states south of the river ohio. mr. swift objected to complying with the report of the committee. he thought that it could not be carried into execution, because it involved inconsistencies. if the object of the law referred to, was to admit this person to debate, and not to vote, that was unconstitutional. he was, by that law, to be a member of congress; but the house of representatives are not congress, and, therefore, this person may equally vote in the house of representatives and in the senate; while, at the same time, he may interrupt the president consenting to a bill, by giving his advice. the constitution has made no provision for such a member as this person is intended to be. if we can admit a delegate to congress or a member of the house of representatives, we may with equal propriety admit a stranger from any quarter of the world. we may as well admit the gallery, or a foreign minister, as this person from the territory south-west of the ohio. at this rate, we may very soon overturn the constitution. if this person has any proper title to a seat, it must be in the senate; it could not be in the house of representatives, who were not delegates. the senate, perhaps, might be called such. his election was nearer the mode of theirs, than that of this house. mr. smith (of south carolina) had no difficulty in declaring that the gentleman was fully qualified to take a seat in that house, by the terms of an express compact with the people. he was convinced that the representatives have a right to admit those whom they regard as lawfully entitled to a seat in the house, for the purpose of debating. they may admit the secretary of state, if they consider it as expedient. if this gentleman had applied to the senate, that body also were authorized to admit him, if they thought it lawful. under the old constitution, he would have been a member _sui generis_. he does not claim a right of voting, but of speaking only; and when the affairs of the south-western territory were agitated in the senate, he had a right, in his (mr. s.'s) judgment, to speak and debate in that house also. mr. s. wished that there had been previously settled another part of this business, viz: by whom the delegate was to be paid for his attendance. it may be a future question, also, whether he is to be dismissed when the galleries are cleared? mr. giles was not prepared to speak on the subject. on the score of expediency, his present opinion was, that the delegate from the south-west of the ohio should be admitted. he had no objection to the motion of the member from maryland, (mr. murray,) for the committee rising, but he would never consent to it for the sake of consulting the senate. he would agree to it, for the sake of further deliberation among themselves. if the house chose to consult the _gallery_--a resource for information that he should never wish to see adopted--they had a right to consult it, or to ask advice from any other quarter, notwithstanding the assertion of the gentleman from connecticut. mr. dexter said, he thought the obstacle should be got over by a formal act of the legislature. he was clear that the house had a right to consult or admit to the privilege of debating, any individual whom they thought proper. they might, for instance, admit an advocate to plead; in a particular case; but that was entirely a different matter from allowing him to give a vote on the question before the house. mr. d. declared that he would vote against the report, as it now stands, not because he thought the gentleman from the south-western territory unentitled to a seat, but because he regarded an act of the whole legislature as a requisite for his introduction. it was now moved that the committee should rise, and report the resolution of the select committee. mr. w. smith differed from mr. dexter. he thought the house of representatives was, in itself, perfectly competent to settle the point. he was determined that they ought not to consult the senate upon the matter. it would be extremely improper to let the senate interfere. he again adverted to his former position, that the house may, if it sees proper, introduce the secretary of state to a privilege of being consulted, or any other person who may be thought suitable. but he would never submit to yield the privileges of the house to the executive. they ought to decide their elections on their own authority, and on no occasion send to inquire of the senate if such an amendment ought to be admitted. mr. s. considered the gentleman (mr. white) as expressly within the present constitution. he trusted that the committee would not rise, under any such idea as consulting the senate; but, if they at present rise, that it would be merely for the sake of obtaining further information. mr. murray.--if we could have foreseen this case, i am sure that we should have had a joint committee of privileges from both houses, as judges. the situation of the gentleman refers to both, and therefore the senate ought to be consulted on this head. perhaps he is entitled to a seat in both houses. mr. mcdowell objected, that an act of the legislature would never, practically, answer the purpose. the session would be next to ending, before such a law would be passed. in the mean time, the interest of the people south-west of the ohio is agitated in a question, and their delegate is condemned to silence. the members generally admit, in substance, that he ought to be received into this house. he wished, therefore, that they would take a vote on the resolution of the select committee. he would object altogether to the proposal of the member from maryland, for an act of the legislature, or any consultation with, the senate. mr. mcd. was for admitting the member to his seat. mr. boudinot observed, that it was universally agreed that the old law for accepting such a member as a delegate of congress, cannot be executed in its full sense. the gentleman ought, in his opinion, to go where members elected by legislatures went, that is to say, to the senate. there was no pretence for his admission among the representatives of the people. if he had any right, it must be in the other house. he thought this a very important question, and that it deserved more consideration than it had yet received. mr. b. was not prepared to vote; but, if he was forced to give his voice at present, he should be for remitting the gentleman to the senate. he thought that there should be an act of the whole legislature. he should vote for the committee rising. mr. dayton said, that he should vote against the motion of the maryland member, for the rising of the committee. he was against the object of this motion. he agreed entirely with the report of the select committee for receiving the south-western member immediately, as he had a right to a seat, founded on an original compact, which gave it to him. he objected to any concurrence of the senate being asked. as to consulting persons out of doors, the house had a right to call heads of departments to give their opinions on any particular subject, if they thought proper. mr. d. mentioned some cases of this nature, where such an expedient had been used. mr. giles mentioned one reason against the committee rising, which was, that the house had no other business before it. he then read an amendment to the resolution of the select committee, as a middle course, that would embrace the ideas of all parties. mr. dexter repeated some of his former reasons for preferring an act of the legislature. the question was called for, and put by the chairman, shall the committee now rise, and report progress? it was decided in the negative--yeas , nays . the question was then put on the resolution, as given by the committee. mr. giles again proposed his amendment. this was, that after the word "debating," in the resolution, there should be added, "upon any question touching the rights and interests of people in the territory of the united states south-west of the ohio." the object was to narrow the power of the delegate. mr. smilie was for his being admitted to deliberate on every subject, or none at all. mr. giles declared that he was very well pleased with the resolution, as it originally stood. he had only suggested this amendment that he might get the resolution through the house. he therefore withdrew his motion. mr. baldwin did not see that the question was of much importance. when a member was permitted to speak, but forbidden to vote, his situation was, no doubt, infinitely higher than that of strangers in the gallery, that of an advocate allowed to plead at the bar of the house, or that of a printer who came only to take notes; but still it was extremely short of the situation of a member of congress. this would be more especially the case, if his right of debating was restricted to the affairs of the north-west and south-west territory. mr. b. could see nothing in the new constitution that made an exclusion of the delegate from the south-west of the ohio. this privilege had been solemnly promised to those people, upon three different occasions. when they belonged to the state of south carolina, they sent a representative, mr. sevier, to congress; and they separated into a new state, under the promise of this privilege. but now, we have made a discovery, that these laws cannot be put into execution. it is a great pity that we had not made this discovery sooner. mr. b. rejected all idea of referring this matter to the senate. when the latter had any question of that kind, that concerned themselves, they would, no doubt, judge for themselves, and that just as properly as the house of representatives. as to the pay of this gentleman, that might be an after question. he was clear that there at present existed no law which could make out that. the house may hereafter, if they see fit, pass a law respecting it. but, in the mean time, mr. b. was satisfied that these people had a claim for a delegate, which could not be got rid of by the house. mr. swift thought that it would be better to erect these people into a new state, and then the privilege would be of some real use to them. he was still of opinion that the constitution admits of no such delegate as this person is intended to be. he is a new kind of character, unknown to it. this person is _sui generis_. if the constitution knows any thing about him, then take him; if not, reject him. as to taking advice from the gallery, mr. s. seemed to think he had been misunderstood. to admit a person within the bar for the purpose of consulting him, was a quite different thing from permitting the gallery, like this person, to come and take a permanent seat among the members, for the purpose of regularly debating. mr. s. never meant to debar the house from taking information wherever they could find it. mr. murray was concerned that he found himself obliged to vote against the resolution of the committee of the whole. he still hoped that the gentleman would have a seat, but that the senate would first be consulted. mr. wingate moved an amendment to take the resolution, by adopting these words, "to a seat in congress, as a delegate to congress." mr. madison said, that the resolution, as passed by the select committee, was so properly expressed, that he did not believe it could admit of any amendment or alteration whatever. the committee of the whole house then divided on the resolution, when there appeared a very large majority in favor of reporting it as it first stood, and consequently for admitting mr. white as a delegate. the committee then rose. tuesday, november . another member, to wit, theodore sedgwick, from massachusetts, appeared, and took his seat in the house. _delegate south of the ohio._ the house proceeded to consider the report of the committee on the letter from james white, enclosing the credentials of his appointment as a representative of the territory of the united states south of the river ohio; to which the committee of the whole house reported no amendment. whereupon, the said report being again read at the clerk's table, was, on the question put thereupon, agreed to by the house, as follows: "that, by the ordinance for the government of the territory of the united states north-west of the river ohio, section nine, it is provided, "that, so soon as there shall be five thousand free male inhabitants of full age in the district, upon giving proof thereof to the governor, they shall receive authority to elect representatives to represent them in a general assembly;" and by the th section of the ordinance, "as soon as a legislature shall be formed in the district, the council and house, assembled in one room, shall have authority, by joint ballot, to elect a delegate to congress, who shall have a seat in congress, with a right of debating but not of voting, during this temporary government." full effect is given to this ordinance by act of congress, august , . "that, by the deed of cession of the territory south of the river ohio, to the united states, in the fourth article, it is also provided 'that the inhabitants of the said territory shall enjoy all the privileges, benefits, and advantages, set forth in the ordinance of the late congress for the government of the western territory; that is to say, congress shall assume the government of the said territory, which they shall execute in a manner similar to that which they support in the territory west of the ohio, and shall never bar or deprive them of any privilege which the people in the territory west of the ohio enjoy.' "the cession, on these conditions, was accepted by act of congress, on the d of april, . "by an act passed the th of may, , for the government of the territory of the united states south of the river ohio, it is enacted, 'that the inhabitants shall enjoy all the privileges, benefits, and advantages, set forth in the ordinance of the late congress for the government of the territory of the united states north-west of the river ohio. and the government of the said territory south of the river ohio, shall be similar to that which is now exercised in the territory north-west of the river ohio; except so far as is otherwise provided in the conditions expressed in an act of congress of the present session, entitled 'an act to accept a cession of the claim of the state of north carolina to a certain district of western territory.' the committee are of opinion that james white has been duly elected as delegate from the territory of the united states south of the ohio, on the terms of the foregoing acts; they therefore submit the following resolution: "_resolved_, that james white be admitted to a seat in this house as a delegate from the territory of the united states south of the river ohio, with a right of debating but not of voting." mr. madison said, that in new cases there often arose a difficulty by applying old names to new things. the proper definition of mr. white is to be found in the laws and rules of the constitution. he is not a member of congress, therefore, and so cannot be directed to take an oath, unless he chooses to do it voluntarily. mr. murray moved that mr. white should be required to take the oath. mr. w. smith observed, that the constitution only required members and the clerk to take the oath. the gentleman was not a member. it does not even appear for what number of years he is elected. in fact he is no more than an envoy to congress. instead of being called delegate to congress, had he been plainly called an envoy, the difficulty would have vanished. he is not a representative from, but an officer deputed by the people of the western territory. it is very improper to call on this gentleman to take such an oath, any more than any civil officer in the state of pennsylvania. mr. s. did not consider him as coming even within the post office law, (viz: for franking letters.) he is not entitled to pay, unless a law shall be passed for that end. mr. giles agreed with the gentleman who spoke last as to the impropriety of demanding an oath. mr. lyman was for it. mr. dayton was against the oath. call him what you will, a member, a delegate, or, if you please, a _nondescript_. it would be wrong to accept his oath, even if he should offer it. he is not a member. he cannot vote, which is the essential part. it is said that he can argue, and by that means influence the votes of the house. but so also a printer may be said to argue and influence, when he comes to this house, takes notes, and prints them in the newspapers. mr. boudinot.--as the house had set out on a wrong principle, it was natural that, in their subsequent progress they should wander further and further from the point. but, as the house had now given their decision, he acquiesced in it. it was, however, a strange kind of thing to have a gentleman here arguing, who was not bound by an oath. he never could reconcile it. several other members spoke. the house divided on the question, "shall the delegate take an oath as a member?" ayes , noes --majority against the motion, . _ordered_, that a committee be appointed to bring in a bill extending the privilege of franking to james white, the delegate from the south-western territory, and making provision for his compensation; and that mr. william smith, mr. thatcher, and mr. macon, be the said committee. wednesday, november . another member, to wit, thomas scott, from pennsylvania, appeared, and took his seat in the house. _ordered_, that a message be sent to the senate to inform them that this house is now ready to attend them in receiving the communication from the president of the united states, agreeably to his notification to both houses yesterday; and that the clerk of this house do go with the said message. the senate attended and took seats in the house; when, both houses being assembled, the president of the united states came into the representatives' chamber, and delivered his address to them. (for which see proceedings of the senate.) the president of the united states then withdrew and the two houses separated. _ordered_, that the speech of the president of the united states to both houses be committed to a committee of the whole house to-morrow. thursday, november . another member, to wit, william findlay, from pennsylvania, appeared, and took his seat in the house. monday, november . _answer to the president's speech._[ ] mr. nicholas then rose in defence of mr. madison's amendment. he thought the house should not bow so much to the executive as to approve of his proceedings without knowing what they are. gentlemen say that they do not mean an implicit approbation. why, then, hazard words that infer it? he would go as far in thanking the president as any person with propriety could go. mr. sedgwick insisted that the amendment of the member from connecticut (mr. hillhouse) was preferable to the other. the president has said that his policy in regard to foreign nations is founded on justice. we approve of that. he recites his motives. they are also approved. where, then, is the danger of expressing a general approbation? would it be proper to give an approbation that cannot be appropriate, and that has no definite meaning? mr. s. was far from designing to approve, explicitly or implicitly, what the house were not acquainted with. he only intended to convey a general sentiment of approbation; and he saw nothing more than this in the amendment of the gentleman from connecticut. mr. hillhouse never designed indiscriminate approbation; nor had he any secret meaning couched under the words of his amendment. when he had any thing to say to the house, he came honestly and told them in plain words what he would be at. he meant to express his applause of pacific and equitable measures. as to the question so often referred to, (the embassy of mr. jay,) he solemnly declared that it never was in his mind to express any thing about it. it would come before another body. mr. madison imagined that, in his motion as now worded, every person might see substantial approbation. mr. ames.--jealousy may become habitual as well as confidence. nothing but a habit of jealousy could have found any thing of a secret in this verbal distinction of _your_ policy instead of _a_ policy. the distinction was trifling, but, if there must be one, he preferred the amendment of mr. hillhouse. his reasons for this preference were so minute that they, perhaps, had little more value than what his imagination chose to give them. in the mean time, nobody will suppose that we do not approve of the policy of the president in preferring pacific measures, because the system of peace is now preferred all over the continent of america. mr. dayton rose to make a reply to "remarks so illiberal." mr. ames here rose again and said that the gentleman certainly could not mean him. i mean _that_ gentleman, mr. speaker, said mr. dayton, pointing to mr. ames. he has accused me of "habits of jealousy." to this charge mr. d. rejoined with some warmth. he again declared that he never would pledge himself to approve of the mission of mr. jay, till he should learn what were that gentleman's instructions. he meant to draw this line of distinction, to give approbation of general principles, but not of particular measures. the former he considered as implied in the amendment of mr. madison, the latter in that of mr. hillhouse. mr. vans murray considered the dispute as resting on the words _a_ policy and _your_ policy. he would not give explicit approbation to particular measures, but he approved the general principles on which the president preferred a pacific system. mr. giles.--it is admitted on all sides of the house, that we approve the general principles, but will not pledge ourselves to approve the particular means. it is best, then, to adopt the least equivocal words. mr. g. allowed that there was but little difference, yet he should vote for the amendment of mr. madison as it stood. mr. dexter, in opposition to the sentiments of the gentleman who had last sat down, would vote for "_your_ policy," instead of "_a_ policy." the latter made the sentence an abstract proposition. the words "_your_ policy," made it a personal application. the omission of the word _your_ tended to an implication of censure. if an abstract proposition was the whole meaning intended to be expressed, that meaning might as well be put into any other place as into an address to the president. he did not see the use of it. praise (said mr. d.) is the only reward which a person receives in a republican government; or at least, it is the greatest reward; and if withheld where due, the effect must be pernicious. here it would be of more particular impropriety to withhold praise, when all our constituents approve the pacific policy of the president. it would have been a matter of little consequence at first, whether "_a_ policy" or "_your_ policy" had been adopted, for every reader would have understood it as an approbation of the president. but now, after such a debate, if we scruple at the word _your_, all the world will conclude that we mean an implied censure. mr. boudinot said that he adopted the word _your_ as unequivocal. he had no meaning but what was open and candid. by adopting the amendment the house would make that language explicit, which was at present, at least in some degree, ambiguous. mr. tracy pronounced an elegant panegyric on the character and conduct of the president of the united states, whom no man admired more sincerely than he did, though he could not speak thus from the honor of enjoying a personal acquaintance. he recommended to mr. madison rather to withdraw his motion of amendment altogether than bring it forward at such an expense of the good temper of the house. the present session had commenced with good auspices, and much cordiality, and he would be extremely sorry to disturb its tranquillity. mr. madison said that he felt sensibly the force of the remarks made by the gentleman who was last up. in consequence of these remarks, he should be happy to withdraw his amendment. this was accordingly done. it was then proposed that the committee of the whole house should rise, and report the draft of the address as originally given in by the special committee, with the additional amendment that had been proposed by mr. dayton, and adopted. mr. fitzsimons then rose and said, that it would seem somewhat incongruous for the house to present an address to the president which omitted all notice of so very important an article in his speech as that referring to the self-created societies. mr. f. then read an amendment, which gave rise to a very interesting debate. the amendment was in these words: "as part of this subject, we cannot withhold our reprobation of the self-created societies, which have risen up in some parts of the union, misrepresenting the conduct of the government, and disturbing the operation of the laws, and which, by deceiving and inflaming the ignorant and the weak, may naturally be supposed to have stimulated and urged the insurrection." these are "institutions, not strictly unlawful, yet not less fatal to good order and true liberty; and reprehensible in the degree that our system of government approaches to perfect political freedom." mr. giles stated at large his sentiments as to this expression in the speech of the president about self-created societies. the tone of that passage in the speech had made a great deal of noise without doors, and it was likely to produce a considerable agitation within doors. [here a motion was made for the rising of the committee.] mr. g. did not wish to press himself upon the attention of the committee, but if they were disposed to hear him, he was prepared to proceed. mr. sedgwick objected to the rising of the committee. the house had been often entertained and informed by the ingenuity of that gentleman, who was now prepared to address them. mr. w. smith considered it as opposite to the practice of the house for a member to move that a committee should rise, at the very time when gentlemen had declared themselves ready to deliver their sentiments. [it was repeatedly inquired from the chair, by whom this motion was made. no answer was given and it seemed to be the unanimous wish of the house that mr. giles should proceed, which he did.] mr. g. began by declaring that, when he saw, or thought he saw, the house of representatives about to erect itself into an office of censorship, he could not sit silent. he did not rise with the hope of making proselytes, but he trusted that the fiat of no person in america should ever be taken for truth, implicitly, and without evidence. mr. giles next entered into an encomium of some length on the public services and personal character of the president. he vindicated himself from any want of respect or esteem towards him. he then entered into an examination of the propriety of the expression employed by the president, with regard to self-created societies. mr. g. said, that there was not an individual in america, who might not come under the charge of being a member of some one or other self-created society. associations of this kind, religious, political, and philosophical, were to be found in every quarter of the continent. the baptists and methodists, for example, might be termed self-created societies. the people called the friends, were of the same kind. every pulpit in the united states might be included in this vote of censure, since, from every one of them, upon occasion, instructions had been delivered, not only for the eternal welfare, but likewise for the temporal happiness of the people. there had been other societies in pennsylvania for several purposes. the venerable franklin had been at the head of one, entitled a society for political information. they had criminated the conduct of the governor of this state and of the governors of other states, yet they were not prosecuted or disturbed. there was, if he mistook not, once a society in this state, for the purpose of opposing or subverting the existing constitution. they also were unmolested. if the house are to censure the democratic societies, they might do the same by the cincinnati society. it is out of the way of the legislature to attempt checking or restraining public opinion. if the self-created societies act contrary to law, they are unprotected, and let the law pursue them. that a man is a member of one of these societies will not protect him from an accusation for treason, if the charge is well founded. if the charge is not well founded, if the societies, in their proceedings, keep within the verge of the law, mr. g. would be glad to learn what was to be the sequel? if the house undertake to censure particular classes of men, who can tell where they will stop? perhaps it may be advisable to commence moral philosophers, and compose a new system of ethics for the citizens of america. in that case, there would be many other subjects for censure, as well as the self-created societies. land-jobbing, for example, has been in various instances brought to such a pass that it might be defined swindling on a broad scale. paper money, also, would be a subject of very tolerable fertility for the censure of a moralist. mr. g. proceeded to enumerate other particulars on this head, and again insisted on the sufficiency of the existing laws for the punishment of every existing abuse. he observed, that gentlemen were sent to this house, not for the purpose of passing indiscriminate votes of censure, but to legislate only. by adopting the amendment of mr. fitzsimons, the house would only produce recrimination on the part of the societies, and raise them into much more importance than they possibly could have acquired if they had not been distinguished by a vote of censure from that house. gentlemen were interfering with a delicate right, and they would be much wiser to let the democratic societies alone. did the house imagine that their censure, like the wand of a magician, would lay a spell on these people? it would be quite the contrary, and the recrimination of the societies would develope the propriety of having meddled with them at all. one thing ought never to be forgotten, that if these people acted wrong, the law was open to punish them; and if they did not, they would care very little for a vote of that house. why all this particular deviation from the common line of business to pass random votes of censure? the american mind was too enlightened to bear the interposition of this house, to assist either in their contemplations or conclusions on this subject. members are not sent here to deal out applauses or censures in this way. mr. g. rejected all aiming at a restraint on the opinions of private persons. as to the societies themselves, mr. g. personally had nothing to do with them, nor was he acquainted with any of the persons concerned in their original organization. mr. lyman hoped that the member from pennsylvania would, upon reflection, withdraw his amendment. mr. l. considered it to be as improper to pass a vote of censure, as it would be to pass a vote of approbation. he did not wish to give printers an opportunity of publishing debates that had better be suppressed. besides, where will this business of censorship end? it would be much better not to meddle with the democratic societies at all. some of them were perfectly sensible that they had gone too far. he should, therefore, move that this committee do now rise, and that the chairman report the address as it now stands. mr. thatcher hoped that his colleague would not insist on taking that question just now, before other gentlemen had an opportunity of delivering their sentiments. mr. lyman, in reply, said that gentlemen were at liberty, in discussing his motion, to tell their minds as to the self-created societies. mr. sedgwick requested that mr. lyman would take this motion out of the way. mr. l. withdrew it. mr. w. smith then rose, and entered at large into the subject. he said, that if the committee withheld an expression of their sentiments in regard to the societies pointed out by the president, their silence would be an avowed desertion of the executive. he had no scruple to declare that the conduct of these people had tended to blow up the insurrection. adverting to mr. giles, he thought the assertion of that gentleman too broad, when he spoke of not meddling with the opinions of other than political societies. he considered the dissemination of improper sentiments as a suitable object for the public reprobation of that house. suppose an agricultural society were to establish itself, and under that title to disseminate opinions subversive of good order; the difference of a name should not make mr. s. think them exempted from becoming objects of justice. would any man say that the sole object of self-created societies has been the publication of political doctrines? the whole of their proceedings has been a chain of censures on the conduct of government. if we do not support the president, the silence of the house will be interpreted into an implied disapprobation of that part of his speech. he will be left in a dilemma. it will be said that he has committed himself. mr. s. declared that he was a friend to the freedom of the press; but would any one compare a regular town-meeting where deliberations were cool and unruffled, to these societies, to the nocturnal meetings of individuals, after they have dined, where they shut their doors, pass votes in secret, and admit no members into their societies, but those of their own choosing? mr. s., by way of illustration, observed, that this house had never done much business after dinner. in objection to this amendment it had been stated, that the self-created societies would acquire importance from a vote of censure passed on them. they were, for his part, welcome to the whole importance that such a vote could give them. he complained, in strong terms, of the calumnies and slanders which they had propagated against government. every gentleman who thought that these clubs had done mischief, was by this amendment called upon to avow his opinion. this was the whole. mr. s. begged the house to take notice, and he repeated his words once or twice, that he did not mean to go into the constitution of these societies, or to say that they were illegal. the question before the house was not whether these societies were illegal or not, but whether they have been mischievous in their consequences. mr. mcdowell was of opinion that the term self-created societies, was too indefinite. he professed the highest respect for the character of the president; but he did not think that the proposed vote of censure would be any eligible proof of it. the house of representatives were assembled not to volunteer in passing votes of reprobation on societies, or individuals, but to legislate. he wished that gentlemen, instead of losing their time on such frivolous and inflammatory amendments, would proceed to the proper business of the house. the gentleman from south carolina seemed to be well acquainted with democratic societies. it was very true that they had published resolutions reprobating the assumption business, and the system of funding; but the rest of the people, as well as democratic societies, had very generally censured the assumption and the funding transactions. he thought that some laws had been passed which answered no good purpose, nor indeed any purpose, but that of irritating the public. the present amendment he considered as destructive not only to the intercourse of domestic society, but that it involved a prospect of throwing restraint upon the conduct of gentlemen in the house of representatives. with the gentleman from virginia, (mr. giles,) he was satisfied that the amendment, if adopted, would have no weight whatever with the citizens of the united states; as they were too enlightened to accept of opinions from their representatives. mr. tracy had imagined that no man would have the hardihood to come forward in that house and vindicate these societies. he quoted from the remarks of mr. mcdowell, the words, "your wanton laws, begotten in darkness, first raised insurrection;" and likewise some other words about the enormous expense of millions for the western expedition. mr. t., after reading these expressions from a memorandum, which he held in his hand, declared his surprise, that a gentleman, whom he knew to possess the candor and good sense of the member from north carolina, could suffer such language to escape him. he was certain that the gentleman, if he had not been somewhat in a hurry, never would have permitted those words to pass from his lips. quitting this topic, mr. t. said, that he would, for his own part, be disposed to let these societies alone, and leave them to the chastisement of their own consciences. if they were to say, "gentlemen, you, as tyrants, make laws, and slaves obey them," i would answer, said mr. t., "it is very rash. think again before you say this again. we believe that, from inadvertency, some things have escaped from democratic societies, which they had not well weighed, and which had a bad effect on weak and ignorant people in the western counties of pennsylvania. you have seen the bad effects of your temerity. take care before you publish any such thing again." mr. t. said, this is all the length which we mean to go, and can any body object to this? the democratic societies form but a very small portion of the people of america. where is the harm in saying that one-hundredth, or, i believe i might say, not more than one-thousandth part of the citizens of the united states have been mistaken, and that they have been imprudent in printing certain indiscreet resolutions? mr. t. declared that if the president had not spoke of the matter, he should have been willing to let it alone, because whenever a subject of that kind was touched, there were certain gentlemen in that house who shook their backs, like a sore-backed horse, and cried out, the liberties of the people! mr. t. wished only that the house, if their opinion of these societies corresponded with that of the president, should declare that they had such an opinion. this was quite different from attempting to legislate on the subject. has not the legislature done so before? is there any impropriety in paying this mark of respect to a man to whom all america owes such indelible obligations? he thought that this declaration from the house of representatives would tend to discourage democratic societies, by uniting all men of sense against them. mr. t. said, that perhaps the member who spoke last might be connected with some of these societies, of which he entertained so favorable an impression. mr. mcdowell said, that he wanted the house to avoid quarrels, and to mind their proper business of legislation. he declared that he was not a member of any such society. he did not know that he had ever been in the company of any person who was a member of any of them. he was even, he declared upon his honor, ignorant whether there were, or ever had been, any such societies in north carolina. he adverted to the simile of the sore-backed horse, and said that he believed his back to have been rubbed harder in the last war, than that of the gentleman. he imagined that these societies had done both good and harm, and again declared, that he could not consent to a vote of indiscriminate reprobation. mr. dayton was heartily for the amendment. he observed that he wanted no evidence to satisfy him, as to the gentleman not being a member of any of these societies. if he had been connected with them, he would have known their principles better than he seems to do. mr. d. said that many persons in new jersey, who had been the most violent against the excise law were equally so against the insurgents; and though their opinion of the law itself was unaltered, which they made no scruple of openly declaring, yet they did not, on that account, hesitate about marching against the insurgents. they did not suppose that one obnoxious statute was any reason for overturning the federal constitution. the murmurs against the excise law in new jersey had been converted into universal silence, because no man would venture to express his discontent, at the hazard of being suspected of being a friend to the insurgents. that the democratic societies had produced the most mischievous effects in the western counties there could be no question. letters had been received from officers in the army, who were the most respectable characters, and who, from authentic information, had affirmed the fact. it had been stated that these people would recriminate upon the house, and it had even been hinted that their recriminations might affect the president. _that man_, said mr. d., is above their censure. he believed that if their censures had any effect at all, it would be to do the president honor. mr. nicholas.--when we see an attempt made in this house to reprobate whole societies, on account of the conduct of individuals, it may truly be suspected that some of the members of this house have sore backs. the president has been apprised of the absurdity of making this a legislative business. here mr. n. read a passage from the president's speech, to show, that the notice taken of self-created societies was not intended for a topic of discussion in that house. the passage was expressly addressed to every description of citizens: "and when in the calm moments of reflection, they shall have retraced the origin and progress of the insurrection, let them determine, whether it has been fomented by combinations of men, who, careless of consequences," &c. was this an address to the two houses? did this passage show that the president wanted them to intermeddle? were they called upon to give an opinion? where could be the pretence for any thing of this sort? the house have made acts. the democratic societies reprobate them, and then the house reprobate the democratic societies. when you first cut a man's throat, and thereafter call him a rascal, do you suppose that your accusation will affect the man's reputation? the house, by passing this vote of censure, would make themselves a party, and lose a title to unsuspected confidence. mr. n. declared, that, for his own part, he never had any concern with these societies, nor ever to his knowledge had spent an hour with any person who was a member of them. he rather, if any thing, despised them. he had always thought them the very worst advocates for the cause which they espoused; but he had come two hundred miles to legislate, and not to reprobate private societies. he was not paid by his constituents for doing business of that sort. the president knew the business of the house better than to call for any such votes of censure. it was wrong to condemn societies for particular acts. that there never should be a democratical society in america, said mr. n., i would give my most hearty consent; but i cannot agree to persecution for the sake of opinions. with respect either to the propriety or the power of suppressing them, mr. n. was in both cases equally of opinion that it was much better to let them alone. they must stand or fall by the general sentiments of the people of america. is it possible that these societies can exist, for any length of time, when they are of no real use to the country? no. but this amendment will make the people at large imagine that they are of consequence. mr. dayton said, that these societies had produced the western insurrection, and, therefore, the committee were just as well entitled to institute an inquiry in this case, as formerly regarding the failure of the expedition of general st. clair. the committee now rose, and reported progress, and had leave to sit again. tuesday, november . another member, to wit, james gillespie, from north carolina, appeared, and took his seat in the house. _the president's speech._ the house again went into committee of the whole on the address of the president and the amendment of mr. fitzsimons, mr. cobb in the chair. mr. murray said, that he did not altogether like the wording of the amendment now before the house. he had hoped that some modification of it would have been prepared by some of its friends; but as none was offered, and there was a call for the question, he would vote for it rather than against it. he said, that he had not been personally attacked by any of the tribunals in question, and no further injured by their machinations than as he was a citizen of a free republic in whose prosperity he felt the closest possible union, and in whose calamities he of course felt great sympathy. among the various sources of the late calamity, the president had traced and designated certain self-created societies, who had arrogated the management of public opinions and affairs, and whom he had declared to have been, in his opinion, instrumental in fomenting the late insurrection. mr. m. confessed that he had feared, last winter, lest the disorganizing spirit which had gone abroad in the shape of resolutions from these societies, would have produced the effect ascribed to them by the president. the conduct of the democratic clubs, or those of them with which he had most acquaintance, appeared to him to have been instrumental to an event which threatened destruction to legitimate government. if we believe this to be the case, mr. m. knew no motive, duty, or policy, which ought to restrain us at this period from saying that we believe it, and from lamenting it. our declaration will rather hold out a caution to the thoughtless, than inflict legal penalties upon their follies. it will present to our fellow-citizens a memorable example of one source of error and political misfortune, by showing them the danger, which has already cost above twelve hundred thousand dollars. he could not see any evil that was to result from an expression of the opinion of the house, by the proposed amendment. it had not the quality of law; for, if a law were proposed for the abolition of these societies, he would oppose it. this amendment to the address would operate as an advice. it curtails not the right of a free press, which mr. m. held to be the luminary of the public mind. it would tend to excite a judicious and salutary inquiry among many respecting the just and true limits within which a virtuous and enlightened well-wisher to our country would think it safe to exercise this right. of the inutility and danger of such societies in this country, he had little doubt. the scene of their birthplace was well adapted to the wholesome display of their powers. in france, where a despotism, impregnable to public opinion, had reigned--where no channel opened a sympathy by representation with the great body of the nation--those societies were admirably adapted to break down and subvert the old bulwark of habitual authority. but in america the case was widely different. look at the immense body of public functionaries, who in this country are elected immediately by the people, or by their electors, in a constitutional mode, and say whether they are not adequate as functionaries to the public purposes of the country. including every description of legislators, councils, governors, courts, jurors, and sheriffs, there are above twelve thousand. of these, more than eleven hundred are actual legislators, besides the hundred in this house, and those above stairs. these all act in the states, counties, townships, and hundreds, in separate but relative circles, so as to preclude a partial attention to any one scene, to the exclusion of another. the whole country is full of well-constituted organs of the people's will. many of these legislatures are in session twice a year, and all of them annually. we might be confused by their immense number, were they not so admirably dispersed over the continent, and did they not move under the guidance of the laws, with the harmony of the spheres. it would not be easy to organize the nation into a more multifarious shape. the case maintained by mr. dayton yesterday appeared to be strong. he said that we had inquired into the defeat of st. clair's army, and so we might into the causes of the insurrection. to point it out to a people so enlightened, will be to prevent it in future. if the house agree in opinion with the president, they will speak their opinion, and do their duty. this declaration goes to the constituent body, through the executive; and, while it gratifies their inquiries in a point of so much solicitude, it erects a warning beacon. it shows to them the stormy breakers which lately threatened the public peace with shipwreck, and invites them to adhere to pilots of their own choosing, and to charts with which they are acquainted. if the president had not thought some of the societies instrumental in producing the late calamity, they would not have attracted his notice, nor that of the house. it is because they are believed to have assisted and fomented the insurrection, that our constituents ought to be warned against them; and that another necessity for exerting their patriotism may be saved to those brave men who are at present encountering every difficulty in the west. these societies are not attended to, because, however offensive some of their proceedings and doctrines may have been, yet the rights of the press ought not to be freely handled. mr. fitzsimons had no violent predilection for any performance of his own. he had, therefore, to prevent so much disputing, prepared to withdraw his motion, provided the committee be willing that he should do so, and, in the room of this motion, he would read another, for which he was indebted to a gentleman at his right hand, (mr. b. bourne.) the committee consented. the former motion was withdrawn, and the other was read. this was an echo of that part of the speech of the president which mentions self-created societies. mr. christie then rose. he was sorry to differ from his worthy colleague (mr. murray) on the question then before the committee; and he was doubly sorry to hear that gentleman labor so strenuously to saddle a public odium on some of the best citizens of the state which he represented. mr. c. should not have risen on the present occasion, although he thought it an important one, had it not been to endeavor to rescue from public censure a society of gentlemen, who were described in the present amendment before the committee, as objects of public opprobrium. mr. c. alluded to the republican society of the town of baltimore. if the present amendment took place, that society would be involved in general and undeserved censure. he would, therefore, inform the house of what description of men the republican society of baltimore consisted; and then the committee would be the best judges whether they ought to be rewarded in the manner in which the present amendment proposes. they are a society of gentlemen associated together for the purpose of diffusing political knowledge throughout the state of maryland, and to instruct their representatives in congress, and the legislature of the state, in any point that they think necessary, and not for the purpose of sowing dissension among the citizens of america, or of cultivating dislike to the union, or to the laws. this society consists of men whose characters are superior to any censure that might be thrown against them, by the mover of the amendment. but when congress are about to cast an odium on a particular society, the members of which have every respect for that body, and have always inculcated obedience to the laws of the united states, mr. c. left it to the committee to determine whether, if they were themselves in the place of the baltimore society, they would not feel their sensibility materially wounded? was not this returning good for evil? he again reminded the committee that the republican society at baltimore was composed of a band of patriots, not the fair-weather patriots of the present day, but the patriots of seventy-five, the men who were not afraid to rally around the american standard, when that station was almost concluded to be a forlorn hope. they were men who, with their persons and properties, had assisted to drive from the soil of america the present lawless disturbers of the world. are these the men, asked mr. c., who ought to have all this mass of congressional odium cast upon them? i trust not, sir. i trust, that if particular gentlemen are illiberal enough to censure them, yet that this house will never agree to such iniquitous measures. what was the conduct of this society when the first news of the late insurrection reached them? did they not, in the most pointed manner, discountenance any such proceeding? did they not refuse to correspond with any society that aided, or in any manner abetted, the insurrection? they did more. they offered their personal services to go and help to crush this commotion in the bud. mr. c. subjoined that he would venture to say, and at the same time he spoke within bounds, that nine-tenths of this society actually took up their muskets and marched into the field for the above laudable purpose, and that numbers of them still continue there, and are the friends of peace and order, and not the disorganizers that the present amendment would make them. mr. c. appealed to the candor of the committee to say, whether the baltimore self-created republican society were the description of men whom the president, in his speech, meant to describe. he was sure it was not. therefore, why involve in this indiscriminate censure men who have deserved so well of their country? men who, instead of having odium cast upon them, merit every praise which the federal government can bestow. for these, and some other reasons, mr. c. declared that he should vote against the amendment, and he trusted that he should vote in the majority. mr. murray rose to explain. he did not mean this society. it was the philadelphia and pittsburg societies. mr. m. was acquainted with this society, and had the greatest respect for them. as for the members of the other societies, he was for gibbeting their principles only. mr. rutherford.--this alarm is owing to an overgrown moneyed system, with which the people are not entirely satisfied. but the moneyholders need not be afraid. the people will pay the public debt. then why disturb the tranquillity of the people? the president, in his speech, points only at combinations over the mountains. as to the character of the president himself, to praise him was like holding up a rush candle to let us see the sun. i have known that man, said mr. r., for these forty years. i have had the honor of serving under him in the last war, and of frequently executing his wise and noble orders. the member declared that this amendment could answer no purpose but that of disturbing the public peace. he himself represented as respectable a district as any in virginia, and he had as good opportunities as any gentleman in that house to know the temper of americans. they were firmly attached to the present government, and the holders of paper need not be so much afraid of democratic societies, for the people, to preserve the tranquillity, were determined to discharge the public debt, no matter how it was contracted, and, therefore, it would be much better not to harass the public mind with amendments like that on the table. mr. giles said, that he had an amendment to propose that would, he hoped, meet with the approbation of a certain description of gentlemen in that committee. his amendment was to strike out the words "self-created societies," from the amendment of mr. fitzsimons, and insert "the democratic societies of philadelphia, new york, and pittsburg." gentlemen could then have some specific object at which they could say that their vote of censure was levelled; for the general expression of self-created, comprehended every society of any kind in the union. for his own part, he was very far from wanting to censure any set of men for their political opinions. mr. parker seconded the motion for striking out, but he would not consent to the insertion proposed by mr. giles. mr. sedgwick thought that the amendment stands better as it is at present. mr. venable said, that there was a paper on that table (he referred to the letter from mr. hamilton to the president) which showed that the combinations in the western counties began their existence at the very same time with the excise law itself. it was, therefore, entirely improper to ascribe them to democratic societies. should government, said mr. v., come forward and show their imbecility by censuring what we cannot punish? the people have a right to think and a right to speak. i am not afraid to speak my sentiments. i am not afraid of being called a disorganizer. i am, as much as any gentleman in this committee, a friend to regular government. mr. dexter believed that such societies were, in themselves, wrong, but he was still not for making laws against them. he had, however, numerous objections to their conduct. one of these was, that they erected themselves into a model for the rest of their fellow-citizens to copy. the great principle of republicanism was, that the minority should submit to the will of the majority. but these people have elevated themselves into tyrants. such societies are proper in a country where government is despotic, but it is improper that such societies should exist in a free country like the united states, and hence, mr. d. was a friend to the amendment proposed by mr. fitzsimons. it had been said, that it was unusual to give opinions of this kind, but, in reality, the house were in the practice of expressing their sentiments on matters of that sort, in such addresses as the one now before them. mr. d. was decidedly against the amendment of the amendment proposed by mr. giles. mr. nicholas.--gentlemen have brought us into a discussion, and then say we must decide as they please, in deference to the president. this is the real ground and foundation of their arguments. but who started this question? if the gentlemen have brought themselves into a difficulty with regard to the president, by their participation in proposing votes of censure which they cannot carry through, they have only to blame themselves. is it expected, said mr. n., that i am to abandon my independence for the sake of the president? he never intended that we should take any such notice of his reference to these societies; but if the popularity of the president has, in the present case, been committed, let those who have hatched this thing, and who have brought it forward, answer for the consequences. this whole question turns upon a matter of fact, which ought to be proved, viz: have the democratic societies been one of the principal causes of the western insurrection? this is a matter of fact, or otherwise, and it depends upon direct evidence. but how do gentlemen handle this question? they digress into abstract propositions, a thing never heard of before, where a matter of fact was to be proved. i say, where direct proof is wanted, we see gentlemen standing on the floor for half an hour together, without attempting to advance a single fact in support of their assertions; yet this is the only admissible kind of evidence that the societies are from their nature unfriendly to the federal government. mr. n. then adverted to a remark which had been made, that libels were daily prosecuted in this country, from which it was inferred that calumnious attacks on government were the just objects of reprehension. mr. n. said, that the comparison was not fair, because in a case of libel, the parties accused have a proper opportunity to defend themselves. have these people here (the democratic societies) any such opportunity? it has been alleged, as a crime against them, that they have never once published any approbation of any measure of government. mr. n. argued that this arose from the very nature of their institution, which was to watch the errors of the legislature and executive, and point out to the public what they considered to be mistakes. faults were the only kind of facts which they were in quest of. here mr. n. drew a material distinction. if these societies had censured every proceeding of government, there would have been the greatest reason for taking some measures. but what was the case? as to an immense number of the proceedings of the executive and legislature, they had taken no notice whatever. mr. sedgwick thought that the president would have been defective in his duty, had he omitted to mention what he religiously believed to be true, viz: that the democratic societies had in a great measure originated the late disturbances. it was the indispensable duty of the president to speak as he had spoken. the present amendment (of mr. fitzsimons) would have a tendency to plunge these societies into contempt, and to sink them still farther into abhorrence and detestation. he pronounced them to be illicit combinations. one gentleman (mr. nicholas) tells you, that he despises them most heartily. another (mr. lyman) says that they begin to repent. will the american people perversely propose to shoulder and bolster up these despised and repenting societies, which are now tumbling into dust and contempt? their conduct differed as far from a fair and honorable investigation, as christ and belial. they were men prowling in the dark. god is my judge, said mr. s., that i would not wish to check a fair discussion. one gentleman (mr. mcdowell) had told the committee, that the assumption and funding transactions were a cause of public discontent. it has been the trick of these people to make this assertion. they have said that the funding system is a mass of favoritism, for the purpose of erecting an oppressive aristocracy, and a paper nobility. there is not a man among them, who is able to write, and who does not know that these assertions are false. as to the assumption of the debts of individual states, it has been said that this measure was undertaken for the purpose of making up a large debt. there was no such thing. before the adoption of the new constitution, of which mr. s. considered the funding and assumption systems to be essential preliminaries, the credit and commerce of america were declining or gone. the states were disagreeing at home, and the american name was disgraced abroad. it was not to be supposed that every one of the measures of the new government could please every body. among the rest, excise was objected to in both houses of congress; but at last the good sense of the people acquiesced. at this crisis, a foreign agent (_genet_) landed at charleston. on his way to this city, he was attended by the hosannas of all the disaffected. he did the utmost mischief that was in his power; and in consequence of his efforts, democratic societies sprung up. mr. s. here gave a particular account of some proceedings of a society in virginia, of more than usual boldness. he quoted some of their expressions relative to a very illustrious character, the president, and added that perhaps the individuals who composed this society were in themselves too despicable to deserve any notice in this place. he did not know whether they were or not. [mr. s. was here interrupted by a member from virginia, and an explanation ensued.] mr. mcdowell rose to make an apology for some words which had escaped him the day before. he did not expect to have been so smartly handled. he had been forcibly struck at the time, and had spoken from a momentary impulse. in substance, however, he adhered to all his former allegations. he still persisted in believing that the excise laws were shapen in darkness. he apologized for some part of his heat, from having seen and suffered so much by despotic government during the last war in which this gentleman supported the character of a brave and able officer. mr. hillhouse approved of the amendment; as proposed by mr. fitzsimons. constituents made no scruple to tell representatives of their faults, and he saw no reason why representatives might not tell constituents of theirs? the resolutions of democratic societies printed in newspapers, had spirited up the people in the western counties to resistance. they had weakly fancied that the american nation would not stand by their constitution and their president. but for the publication of these resolutions, there would have been no insurrection. this was a piece of information which the people of the united states had a right to know. it was the duty of that house to let them know it. the president had done his duty. mr. h. did not consider the amendment of mr. fitzsimons as an indiscriminate censure levelled at these societies; he thought it only a suitable answer to a part of the president's speech. mr. parker concluded this long debate by the following remarks. he did not think that democratic societies were so far to blame as had been imagined. he suspected that the president himself, for whose character and services he felt as much respect and gratitude as any man in america, had been misinformed on this point. it would be absurd to say, that the western disturbances originated from the publications of democratic societies, if it could be proved to the satisfaction of the committee, that such disturbances had begun long before any of the associations alluded to had a being. to prove this position, mr. p. desired that the clerk might read a passage from the letter on that affair, written by mr. hamilton, and which has already been published in all the newspapers. the clerk accordingly read a part of the letter, from which mr. p. inferred that his inference was incontestable, and he then stated the absurdity of making the democratic publications the origin of a discontent, which existed before them. he was satisfied that the president did not wish this thing echoed; and that he would entirely disapprove of the proposed persecution. mr. p. said, that he had the honor of being an honorary member of a democratic society. personally he knew nothing of the gentlemen, but he understood that they were respectable characters; and that they were friends to good order and the federal government, there could be no question, for when the embargo was laid last spring, and some vessels had been attempting to get off, these vigilant citizens armed and embodied themselves, and prevented the execution of the design. with all his respect for the president, he was not to give up his opinions for the sake of any man. he was convinced that all this violent declamation and irritation in the house would do a great deal of mischief, and would have an effect exactly the reverse of what was designed by the amendment as it first stood. a gentleman (mr. dexter) had spoken of town meetings, as the proper vehicles for the communication of political ideas, and had drawn a comparison between these and democratic societies. mr. p. requested that it might be noticed, that in the southern states there neither were nor could be such things as town meetings, because the population was too thin and too widely scattered. they were therefore to make the best of it which they could, and meet and deliberate, no matter where, whenever they found a convenient opportunity. mr. p. expressed, in strong terms the aversion that his constituents would feel to this species of censorship. he concluded with these words: "they love your government much, but they love their independence more." the question was then called for on striking out the word "self-created" from the new amendment of mr. fitzsimons. for the amendment of mr. giles, ayes , noes . this amendment was therefore adopted. mr. giles then proposed an amendment, after the words "combination of men," by adding, "in the four western counties of pennsylvania." mr. hartley said, that the gentleman should have added, "and a county in virginia." this amendment of mr. giles was rejected. the committee now rose, and reported the amendments to the house. wednesday, november . [the committee having risen, and the question having been taken in the house, the yeas and nays on the motion to reinstate the obnoxious words, were:] yeas.--fisher ames, james armstrong, john beatty, elias boudinot, shearjashub bourne, benjamin bourne, lambert cadwalader, david cobb, peleg coffin, joshua coit, william j. dawson, jonathan dayton, samuel baxter, thomas fitzsimons, dwight foster, ezekiel gilbert, nicholas gilman, henry glenn, benjamin goodhue, james gordon, samuel griffin, william barry grove, thomas hartley, james hillhouse, william hindman, samuel holten, john wilkes kittera, henry latimer, amasa learned, richard bland lee, francis malbone, william vans murray, thomas scott, theodore sedgwick, john s. sherburne, jeremiah smith, william smith, zephaniah swift, george thatcher, uriah tracy, jonathan trumbull, john e. van allen, peter van gaasbeck, peleg wadsworth, artemas ward, john watts, and paine wingate. nays.--theodorus bailey, abraham baldwin, thomas blount, thomas p. carnes, gabriel christie, thomas claiborne, isaac coles, henry dearborn, george dent, gabriel duvall, william findlay, william b. giles, james gillespie, christopher greenup, andrew gregg, george hancock, carter b. harrison, john heath, daniel heister, john hunter, matthew locke, william lyman, nathaniel macon, james madison, joseph mcdowell, alexander mebane, william montgomery, andrew moore, peter muhlenberg, joseph neville, anthony new, john nicholas, nathaniel niles, alexander d. orr, josiah parker, andrew pickens, francis preston, robert rutherford, john smilie, israel smith, thomas tredwell, philip van cortlandt, abraham venable, francis walker, and joseph winston. and then the main question being put, that the house do agree to the said clause, amended to read as followeth: "in tracing the origin and progress of the insurrection, we can entertain no doubt that certain self-created societies and combinations of men in the four western counties of pennsylvania, and parts adjacent, careless of consequences, and disregarding the truth, by disseminating suspicions, jealousies, and accusations of the government, have had all the agency you ascribe to them, in fomenting this daring outrage against social order and the authority of the laws:" it passed in the negative, nineteen members only rising in the affirmative. friday, november . _answer to the address._ the answer, as amended, was then read throughout at the clerk's table as follows: sir: the house of representatives, calling to mind the blessings enjoyed by the people of the united states, and especially the happiness of living under constitutions and laws which rest on their authority alone, could not learn, with other emotions than those you have expressed, that any part of our fellow-citizens should have shown themselves capable of an insurrection. and we learn, with the greatest concern, that any misrepresentations whatever, of the government and its proceedings, either by individuals or combinations of men, should have been made, and so far credited as to foment the flagrant outrage which has been committed on the laws. we feel, with you, the deepest regret at so painful an occurrence in the annals of our country. as men regardful of the tender interests of humanity, we look with grief at scenes which might have stained our land with civil blood. as lovers of public order, we lament that it has suffered so flagrant a violation: as zealous friends of republican government, we deplore every occasion which, in the hands of its enemies, may be turned into a calumny against it. this aspect of the crisis, however, is happily not the only one which it presents. there is another, which yields all the consolations which you have drawn from it. it has demonstrated to the candid world, as well as to the american people themselves, that the great body of them, every where, are equally attached to the luminous and vital principle of our constitution, which enjoins that the will of the majority shall prevail; that they understand the indissoluble union between true liberty and regular government; that they feel their duties no less than they are watchful over their rights; that they will be as ready, at all times, to crush licentiousness, as they have been to defeat usurpation: in a word, that they are capable of carrying into execution that noble plan of self-government which they have chosen as the guarantee of their own happiness, and the asylum for that of all, from every clime, who may wish to unite their destiny with ours. these are the just inferences flowing from the promptitude with which the summons to the standard of the laws has been obeyed; and from the sentiments which have been witnessed, in every description of citizens, in every quarter of the union. the spectacle, therefore, when viewed in its true light, may well be affirmed to display, in equal lustre, the virtues of the american character, and the value of republican government. all must particularly acknowledge and applaud the patriotism of that portion of citizens who have freely sacrificed every thing less dear than the love of their country, to the meritorious task of defending its happiness. in the part which you have yourself borne through this delicate and distressing period, we trace the additional proofs it has afforded of your solicitude for the public good. your laudable and successful endeavors to render lenity in executing the laws conducive to their real energy, and to convert tumult into order, without the effusion of blood, form a particular title to the confidence and praise of your constituents. in all that may be found necessary, on our part, to complete this benevolent purpose, and to secure the ministers and friends of the laws against the remains of danger, our due co-operation will be afforded. the other subjects which you have recommended, or communicated, and of which several are peculiarly interesting, will all receive the attention which they demand. we are deeply impressed with the importance of an effectual organization of the militia. we rejoice at the intelligence of the advance and success of the army under the command of general wayne, whether we regard it as a proof of the perseverance, prowess, and superiority of our troops, or as a happy presage to our military operations against the hostile indians, and as a probable prelude to the establishment of a lasting peace, upon terms of candor, equity, and good neighborhood. we receive it with the greater pleasure, as it increases the probability of sooner restoring a part of the public resources to the desirable object of reducing the public debt. we shall, on this, as on all occasions, be disposed to adopt any measure which may advance the safety and prosperity of our country. in nothing can we more cordially unite with you, than in imploring the supreme ruler of nations to multiply his blessings on these united states; to guard our free and happy constitution against every machination and danger; and to make it the best source of public happiness, by verifying its character of being the best safeguard of human rights. _resolved_, that mr. speaker, attended by the house, do present the said address; and that mr. madison, mr. sedgwick, and mr. scott, be a committee to wait on the president, to know when and where it will be convenient for him to receive the same. mr. giles, from the committee appointed, presented a bill to regulate the pay of the non-commissioned officers, musicians, and privates, of the militia of the united states, when called into actual service, and for other purposes; which was read twice and committed. the speaker laid before the house a letter from the treasurer of the united states, accompanying his account of receipts and expenditures of public moneys, from the st of april to the th of june, ; also, his account of payments and receipts for the war department, from the st of july to the th of september, , inclusive; which were read, and ordered to lie on the table. mr. madison, from the committee appointed to wait on the president of the united states, to know when and where it will be convenient for him to receive the address of this house, in answer to his speech to both houses of congress, reported that the committee had waited on the president, who signified to them that it would be convenient to him to receive the said address at twelve o'clock to-morrow, at his own house. saturday, november . the speaker, attended by the house, then withdrew to the house of the president of the united states, and there presented to him the address of this house, in answer to his speech to both houses of congress; to which the president made the following reply: _gentlemen:_ i anticipated, with confidence, the concurrence of the house of representatives in the regret produced by the insurrection. every effort ought to be used to discountenance what has contributed to foment it; and thus discourage a repetition of like attempts. for, notwithstanding the consolations which may be drawn from the issue of this event, it is far better that the artful approaches to such a situation of things should be checked by the vigilant and duly admonished patriotism of our fellow-citizens, than that the evil should increase until it becomes necessary to crush it by the strength of their arms. i am happy that the part which i have myself borne on this occasion receives the approbation of your house. for the discharge of a constitutional duty, it is a sufficient reward to me to be assured that you will unite in consummating what remains to be done. i feel, also, great satisfaction in learning that the other subjects which i have communicated or recommended, will meet with due attention; that you are deeply impressed with the importance of an effectual organization of the militia; and that the advance and success of the army under the command of general wayne is regarded by you, no less than myself, as a proof of the perseverance, prowess, and superiority of our troops. g. washington. tuesday, december . the speaker laid before the house a letter from the secretary of the treasury, stating his intention of resigning his office on the last day of january next, and which he now communicates, in order that an opportunity may be given, previous to that event, to institute any further proceedings which may be contemplated, if any there be, in consequence of the inquiry during the last session, into the state of the treasury department; which was read, and ordered to lie on the table.[ ] thursday, december . _thanks to general wayne._ mr. w. smith wished to make his promised motion, which he prefaced by observing that he had varied it at the request of several gentlemen. in the original motion, he had particularly noticed the diligence of the general in disciplining his army to the nature of the service in which they were engaged, and his fortitude and perseverance in encountering the difficulties which opposed his march through a wilderness. though he and many others were ready to acknowledge in the fullest manner the merits of the general in those important particulars, yet as they were not matters of general notoriety, and as unanimity on an occasion like the present was extremely desirable, he had now confined the motion to the brilliant action of the th august. mr. smith concluded with saying, that as he had no doubt the services of the army had made the same impression on the house as they had on him, he trusted the motion he was about to make would be honored with a unanimous vote. he then moved the three resolutions, as follow: _resolved_, that the thanks of this house he given to major general wayne for the good conduct and bravery displayed by him in the action of the th august last with the indians. _resolved, unanimously_, that the thanks of this house be given to the brave officers and soldiers of the legion under the orders of major general wayne, for their patience, fortitude, and bravery. _resolved_, that the thanks of this house be given to major general scott, and to the gallant mounted volunteers from the state of kentucky, who have served their country in the field during the late campaign, under the orders of major general wayne, for their zeal, bravery, and good conduct. mr. giles foresaw many bad consequences that might ensue from the practice of giving opinions of men. one part of the house might be for a vote of thanks, and the other against it. he should vote for the proposition, but wished that some mode might be adopted for expressing the general opinion of the house against the practice. mr. kittera was for restoring the clause respecting the vigilance of general wayne in attending to the discipline of his troops. mr. hillhouse hoped that the resolutions would not be adopted. he should go farther than the gentleman from virginia (mr. giles) and vote against them. the house in their answer to the president, had expressed their approbation, and that was enough. it was not the business of that house, but of the executive, to express such things. mr. h. had voted most cordially for that part of the address respecting the western army. the answer to the speech of the president would always afford a good opportunity of conveying these kind of matters. it would immediately become necessary to give thanks in every case; and not to give them will be regarded as an implied censure. he trusted that the gentleman would withdraw his motion, and that the house in this way would get rid of it. he had, and he repeated it again, a high sense of the merit of the officers and soldiers of the army under general wayne, but he had said so already in the address to the president. it had been urged, as a precedent for this measure, that it was usual to thank the speaker. this was a mere ceremony. he wished that it had never come into practice, but since it had been so, he should always agree to the vote of thanks. mr. murray thought that we might trust that the house would always have too much prudence to abuse their thanks, by giving them improperly. by way of precedent mr. m. read a vote of the state of virginia, thanking governor lee for his conduct in the western insurrection. mr. nicholas approved highly of the conduct of the troops, but it was only an act of duty. if we send soldiers against the indians, it is supposed that they will stand to their posts, otherwise the government cannot be supported even for a month. mr. hillhouse saw no business which the house had with the proceedings in the state of virginia. it had been hinted that the army under general wayne might feel disagreeably, if the resolution should be rejected. with that mr. h. had no business. he acted on principles without regarding the feelings of individuals. mr. w. smith agreed with gentlemen that the principal object of the house was to legislate; but it did not follow that they were to be confined merely to legislation. every legislative body exercised the right of opinion in cases where no act was to follow. this house has frequently exercised it: the answers to the president's speech; the answer to the king of the french on his acceptance of the constitution of ninety-one; the opinion of the house on the merits of that constitution; the vote respecting benjamin franklin; the vote of last session in reply to a letter from the committee of public safety of france; the votes of thanks to the speakers, were precedents on the journals which refuted a contrary doctrine. it had been said that the latter case was a mere matter of form. mr. s. thought differently, and if ever he was in that house when a vote of thanks should be proposed to a speaker who had no claim to it, he should feel it his duty to oppose it. gentlemen apprehended that this practice might lead to innumerable difficulties hereafter. but every house would exercise its judgment and discretion. members would not be so rash as to propose the thanks of the house where serious opposition was expected, nor would the thanks be voted unless well merited. he was unwilling as any member to make the thanks of the house too cheap; but all must confess that if ever there was an occasion where they were properly called for, this was one. to deny the right or expediency of the practice was in fact to strip the house of one of its most agreeable functions, that of expressing its gratitude. it had been advanced as an objection, that the two houses might differ; one might vote thanks and the other censure, in the same case; but that might happen in other cases where the propriety of expressing an opinion was admitted; in answering the president's speech in the state legislatures, where thanks were frequently voted, the two branches might differ; that was never deemed an objection to the practice; each house expressed its individual opinion. mr. smith said, if the house had been sitting in september last when the account arrived of this victory, would the members have then felt as coldly as they now do? no: he was convinced that in the moment of joy and gratitude, they would have unanimously voted thanks to the army without the least hesitation; but they have since had time to cool, and the impression is worn away. gentlemen should consider the hard services of that army; how badly paid they were; the nature of the country they were in; and then determine whether the brilliant action of the th august is to go unrewarded? to appreciate truly the merits of that army in obtaining so signal a victory, let the house reflect on the consequences of a defeat: the army disbanded and broken up; the frontiers exposed to the ferocious savages; the combination of the tribes more cemented and formidable; an expensive, long, and bloody war. what is now our prospect? the frontiers protected; the combination of the tribes dissolved, and peace with them all a probable event. before, therefore, the motion which he had made could be got rid of, it was incumbent on the gentlemen on the other side to show, either that it was improper in any case whatever to pass a vote of thanks, or that this was not a case entitled to them; to do the first they must establish, in the face of precedents innumerable, a doctrine destructive of one of the most amiable privileges of the house; to do the last, they must express a sentiment which would, he was persuaded, be repugnant to the sentiments of all their constituents, for throughout the united states there was but one opinion on this subject, and that was in unison with the motion. having made the motion after due deliberation, he certainly should not withdraw it; but would submit it to the good sense of the house. mr. coit moved the previous question. he thought the practice of dangerous consequence. it might produce much uncomfortable proceeding in that house. he was seconded by a number of members. mr. parker felt the highest esteem for the services of the western army. he was intimate both with general wayne and general scott; but he disapproved of the practice upon principle. it was wrong in mr. murray to quote the proceedings in the legislature of virginia, where the governor was in authority a mere cipher, because the two cases did not apply. the federal government was on a quite different footing, a mixture of monarchy, of aristocracy, and of democracy. the president represented the monarchical part. it was his business to give thanks, if requisite. if he himself was an officer in that army, mr. p. said that he should be satisfied by the first thanks, those in the answer to the president. he would be hurt by the second as unconstitutional. what if, in the mean time, general wayne and his army may have committed some error that requires an inquiry, and the house are to go into it with this vote of thanks staring them in their face! it had been said by mr. smith, that if we had been sitting in september, when this news arrived, a vote of thanks would have been passed immediately and unanimously. i believe no such thing (said mr. p.) we should have recommended such a step to the president. mr. giles said, that if there ever could have been any doubt as to the impropriety of the resolution, that was now removed, (alluding to the speech of mr. parker.) he thought that the gentleman (mr. coit) who moved the previous question had acted from the best motives. two gentlemen (mr. giles referred to mr. sedgwick and mr. ames) had recommended an appeal to _feeling_. we are sent here to reason. a gentleman (mr. sedgwick) says that he has feelings which he cannot express. let him strive to express them. it is not expected that a member is to express all that he may feel on every subject. mr. murray said he thought the present resolution proper, unexceptionable, and as the fate of this question would have an effect on the motion for thanks to the militia, which he brought forward yesterday, he hoped it would succeed, and that its mover (mr. smith, of south carolina) would not withdraw it. gentlemen who are against the vote have talked of precedent. if example would serve their feelings with a stimulus, he would take the liberty of calling their attention to a page he had in his hand, in which they would find that some of our constituents have got the start of us, for the house of delegates of virginia had very properly considered the conduct of their governor (mr. lee) in a light which merited their thanks for his acceptance of the command of his fellow-citizens against the insurgents. mr. m. read the vote from a newspaper, which was a unanimous one. he said he considered this circumstance as extremely auspicious to both votes. he said he had no objection to consider the practice as founded in principles which would bear examination. he thought it more necessary in the administration of our government--the great basis of which was public opinion--than in that of any other which he had read or heard of. here our theories have made a bold appeal to the reason and feelings of our fellow-citizens. neither titles, nor hereditary honors, nor crosses, nor ribbons, nor stars, nor garters, are permitted or endurable. neither would they be accepted here were they offered. we had but two ways, as far as his knowledge then served him, of rewarding or acknowledging great displays of public virtue. one way is by pay in money; the other by thanks expressed by vote, or presented and perpetuated in some memorial, as in a medal. the first is unequal; as the fortunes of men differ, so would such reward not be equally valuable to all its objects; and were it practicable to apportion this reward agreeably to the fortunes of men, there is a something ill-assorted in it with the idea of honorable ambition; nor did he think there was any good man who had a spark of what is called sentiment in his bosom, who would not say the reward was not only lame for want of uniformity, but defective in point of taste in its species. he believed much in the sense of duty as a motive to good and reasonable services, and that an enlightened mind would feel the close alliance between interest and duty; but he held reward to be essential, politically considered, to the practice of great virtue, taking men as you find them. not that money can be an adequate reward; it was therefore that he wished to see a style of acknowledgment derived both from the genius of the government and congenial with the passions which work on the side of virtue--a mode as far removed from mere avarice as it was nearly associated to the movements of the most elevated minds. he readily yielded his belief that the gentlemen who were unwilling to adopt the practice fully admitted the merits to which they did not think it expedient to give a vote of thanks; but the precedent, founded expressly on the principle, that in no case of the greatest events are we to give thanks to the agents in them, will absolutely strip the government of the only power its constitution admits of conferring deserved distinction. he thought that public gratitude was a great fund, which if judiciously and delicately economized, might be rendered a source of great and good actions. it is an honor both to the nation that can feel and express it, and to those who receive it. he did not think it ought to be lightly drawn on, and hoped a line which it was more easy to conceive than draw, would be adopted by the house to save the legislature from those perilous occasions which would lessen its value, and that no member would ever move a vote of thanks but upon the happening of some event so strikingly great and useful as to carry but one opinion. the two events designated at present (for he saw both votes were to have one fate) were great, highly interesting, and carried but one opinion. the army under general wayne had gained a brilliant victory. it was, he believed, the first great victory that had attended the arms of the united states since the adoption of the constitution. that army merited the thanks of their country, and we may say so. they had not only gained victory and fame, but had earned them in a solitude where the voice of fame could not be heard; in a profound wilderness, where neither the soothings of just ambition can reach them, nor the smiles of social and civilized life can comfort them after their severe labors. the militia, both officers and men, in "quelling the insurrection," had displayed the wisdom and virtue which the constitution had anticipated; had eminently deserved the most public testimony to their good conduct. shall we, as we certainly feel this to be true, be deterred from expressing what we feel, because the folly of a future moment may possibly betray us into an undue multiplication of thanks, or because we may be harassed by a fatiguing succession of calls upon our gratitude? there could be little fear that great events would crowd too fast upon our feelings, and take up our time by applause, and he believed his constituents would readily admit the importance of two such events as some excuse for the time we consume in celebrating them. in favor of the principle, we are supported by the example of the old congress, by the practice of all nations, and by the known character of human nature in all cases and everywhere. the ancients and the moderns, by a variety of inventions and of policy, analogous to our object, endeavored to enlist all the passions in the public service. the old congress understood the springs that work in great events, and though there was in the glorious revolution which they guided, an ardor in the public mind that needed little aid, they did not disdain an appeal to the just pride and ambition of the individual; that the motives to public virtue might be multiplied, they in many instances took care that great events and services should be attended by some small but inestimable memorial. mr. ames.--the apprehensions of the house have been attempted to be alarmed, as if they were pushed to adopt hastily and unguardedly some dangerous new principle. the practice of all public bodies, without exception, has been to express their approbation of distinguished public services. instead of establishing a new principle, the attempt is now made to induce us to depart from an old one. nay, the objection taken altogether is still more inconsistent and singular, for it is urged, the answer of the house to the president's speech has already expressed our approbation of the conduct of general wayne and his army. it is, say they, superfluous to express it again. the argument opposed to the vote of thanks stands thus: it is a dangerous new principle, without a precedent, and without any just authority from the constitution, to thank the army; for, the objectors add, we have in the answer to the speech expressed all that is contained in the motion. it is unusual to quote precedent, and our own recent conduct, to prove a motion unprecedented, and to prove a measure new and dangerous because it has been adopted without question or apprehension heretofore. it is simply a question of mere propriety; and is it a novelty, is it any thing to alarm the caution of the house, that such questions are always to be decided by feeling? what but the sense of propriety induces me to perform to others the nameless and arbitrary duties, and to receive from others the rights which the civilities and refinements of life have erected into laws? in cases of a more serious kind, is not sentiment the only prompt and enlightened guide of our conduct? if i receive a favor, what but the sentiment of gratitude ought to direct me in my acknowledgments? shall i go to my benefactor and say, sir, i act coolly and carefully; i will examine all the circumstances of this transaction, and if upon the whole i find some cause of gratitude, i will thank you. is this gratitude or insult? the man who affects to hold his feelings, and his best feelings back for this cold-blooded process of reasoning, has none. he deceives himself, and attempts to deceive others, if he pretends to reason up or to reason down the impressions which actions worthy of gratitude and admiration make upon his heart. was it necessary to wait for the joy and exultation which the news of the victory of general wayne instantly inspired, till we could proceed with all due phlegm and caution to analyze it? the gentleman from virginia (mr. nicholas) has not even yet received the impressions which are so natural and so nearly universal; for he has insisted that the army has only done its duty, and therefore it is improper to express our thanks. indeed, it has done its duty, but in a manner the most splendid, the most worthy of admiration and thanks. that gentleman has also expressed his doubts of the very important nature of the victory, and one would suppose it was thought by many a very trivial advantage that is gained. it is such an one, however, as has humbled a victorious foe; as has avenged the slaughter of two armies; as gives us the reasonable prospect of a speedy peace. can we desire any thing more ardently than a termination of the indian war? a soldier, of all men, looks to this kind of recompense for his services; and surely, to look to the approbation and applause of his country is one means of keeping alive the sentiments of citizenship, which ought not to be suffered to expire even in a camp. shall we make it an excuse for refusing to pass this vote, that we establish the principle of thanking nobody? is not this, as a principle, as novel, as improper, as that which alarms our opponents? and shall we establish it as a principle against the known practice of other assemblies and of this, and against the intrinsic propriety of the case, merely because we think our discretion will not be firm enough in future to prevent the abuse of the practice? scarcely any abuse could have a worse influence than the refusal to adopt this vote, because, should the negative prevail, what would the army believe? would they not say, a vote of thanks has been rejected? it is said we have not done much, and what we have done is merely our duty, for which we receive wages? the debate has taken such a turn, that i confess i could have wished the motion had not been made. for the most awkward and ridiculous thing in the world is to express our gratitude lothly. but at least it offers to those who fear that votes of thanks will be too frequent, some security against their apprehensions. would any man risk the feelings and character of his friend by an attempt to force a vote of thanks by a bare majority through the house? no, an ingenuous mind will shrink from this gross reward. if there is any force in the precedent it is feared we are now making, it will operate more to deter from than to invite the repetition. mr. dearborn was in favor of the original motion. in addition to some remarks relative to the republicanism of the idea of the representatives of the people thanking the armies of the people for their prowess and victories, he compared the argument against the resolutions on the score of abuse to a miser's excusing himself from the practice of charity, lest he should bestow it on unworthy objects. mr. rutherford was opposed to the previous question. he hoped the resolution of thanks would pass without a dissenting voice. the previous question was now called for, by five members, viz: "shall the main question to agree to the said resolution, be now put?" and on the previous question, "shall the said main question be now put?" it was resolved in the affirmative--yeas , nays . and then the main question being put, that the house do agree to the said resolution, it was _resolved, unanimously_, that the thanks of this house be given to the brave officers and soldiers of the legion under the orders of major general wayne, for their patience, fortitude, and bravery. _resolved, unanimously_, that the thanks of this house be given to major general scott, and to the gallant mounted volunteers from the state of kentucky, who have served their country in the field, during the late campaign, under the orders of major general wayne, for their zeal, bravery, and good conduct. _resolved_, that the president of the united states be requested to transmit the foregoing resolutions; and that mr. william smith and mr. murray be appointed a committee to wait on the president therewith. on motion of mr. murray, _resolved, unanimously_, that the thanks of this house be given to the gallant officers and privates of the militia of the states of new jersey, pennsylvania, maryland, and virginia, who, on the late call of the president, rallied round the standard of the laws, and, in the prompt and severe services which they encountered, bore the most illustrious testimony to the value of the constitution, and the blessings of internal peace and order; and that the president be requested to communicate the above vote of thanks in such manner as he may judge most acceptable to the patriotic citizens who are its objects. _ordered_, that mr. william smith and mr. murray be appointed a committee to wait on the president with the foregoing resolution. tuesday, december . _the mint._ the house then took up the motion of mr. coit, relative to the mint. the letter of mr. rittenhouse, referred to yesterday, was again read. mr. boudinot drew the attention of the house for some time, by a series of the most interesting observations. he went to the bank of the united states to inquire for cents. he was told that there were none to be had, because the bank could not get them from the mint. he then went to the mint, where he was informed that cents were not coined faster because the officers of the mint did not know where to get them vented! he said that this mint cost twenty-four thousand dollars per annum, and every cent coined there cost the public several cents, though he could not exactly tell how many. in new jersey far more cents had been coined in a few months than had ever been coined altogether at the mint of the united states, and this had been done at one-fortieth part of the expense which the mint of the united states has cost. several other members adverted to the prodigious inconvenience which is felt all over the union for want of copper coin; and it appeared to excite some curiosity, on what foundation the officers of the mint said that they could not get their cents vented. it was remarked by mr. w. smith that, except as to philadelphia, the mint is of little or no use whatever. the cents given out never go farther than the city. a committee of three members were appointed to examine and report on the state of the mint, and what means may be used to render the institution more beneficial to the united states. wednesday, december . an engrossed bill making appropriations for the support of government, for the year one thousand seven hundred and ninety-five, was read the third time, and passed. monday, december . two other members, to wit: from virginia, john page; and from north carolina, benjamin williams, appeared, and took their seats in the house. tuesday, december . _pennsylvania insurgents._ it was then moved and seconded that the house should go into a committee, on the report of the select committee, on that part of the president's speech which recommended compensation to the sufferers by the insurgents in the western counties. the house accordingly went into a committee, mr. cobb in the chair, and the report was read. in the clause for making compensation to officers of government, and other citizens, mr. nicholas was for striking out the three last words, and restricting indemnification to the officers of government, as the additional words would make room for a set of claims which never could be satisfied or put to an end. it is now ascertained that the majority of the people of the four western counties have always been in favor of government; but, since it is so, they ought to have suppressed the insurrection, and saved the expense of sending an army into that country. but as they did not do so, mr. n. did not see what claim they had for compensation any more than the sufferers in the war with britain. mr. findlay thought that sound policy required an indemnification to the sufferers. mr. hillhouse was in favor of the report of the committee as it stood. the whole affair was but a trifle. he understood that the damages done by the rioters did not altogether exceed twenty thousand dollars; and that three-fourths of this sum was for losses sustained by officers of the revenue. the rest of the account was for persons who had fought in defence of the officers or who had lodged and protected them. he observed that the whole of the select committee were of one mind upon the subject, and agreed in considering the other citizens as equally entitled to indemnification with the officers themselves. mr. nicholas was still against the resolutions as originally worded. he did not see any proof of extraordinary attachment on the part of the claimants, nor any peculiar call on the justice of the house in this particular case. mr. w. smith said, that one man had his whole property burned for having, at the hazard of his life, assisted in attempting to defend the house of the inspector general. a second received the same treatment for having lodged an excise officer; and a third, because he had antecedently been one himself, though he had quitted his employment before the riots began. mr. s. urged that these were certainly peculiar and pressing cases, and that it would be highly impolitic not to protect such people. mr. gilbert hoped that there would be no discrimination, but that all the sufferers would be alike reimbursed. mr. boudinot proposed a kind of compromise between the original resolution and the amendment by mr. nicholas. he proposed that the clause should read thus: "officers of the revenue, and other citizens aiding and assisting them." he was willing to indemnify persons who had actually suffered in defence of government, but not other persons who might accidentally have been injured by the rioters. mr. dayton was of opinion that some restriction of this sort was necessary. citizens were in duty bound to support government, but the latter was not in all cases bound to indemnify their losses. let any person go through any part of the country wherever british soldiers had marched, and he would find thousands and tens of thousands of people whose property had been utterly destroyed by the wanton barbarity of these troops. go to another part of the country and you will find people who suffered very considerably by the american soldiers, when government did not give them an ounce of bread for pounds that they should have had. it was not possible to make satisfaction to all these people. mr. sedgwick said it was extremely disagreeable to attempt detaining the committee with this subject, to which they discovered such general inattention, that he did not know if it had ever been equalled in any popular assembly before. he again adverted to an argument which he had used on a former day, viz: that when a private person, at the risk of his property and his life, comes forward to support the execution of the laws, his service was much more meritorious, and demonstrated a much greater degree of patriotism than that of a revenue officer who was paid for his share of the business. he inferred that the sufferers by the western rioters should all be equally indemnified. mr. hillhouse repeated some of his former reasons for wishing to discharge the whole claims. he was therefore against the qualified amendment of mr. boudinot. mr. swift was against the amendment of mr. boudinot, because he was against giving, at present, any thing at all. he would suffer the persons who have sustained injury from these rioters and trespassers to prosecute them at law. if they cannot get any retribution in that way, then, and not sooner, you may begin to consider upon the propriety of giving any compensation; but till the parties aggrieved have done their utmost in that way, he would have no steps whatever taken of the nature proposed. it had been alleged that the house might advance money in the mean time to the sufferers, and leave them to their actions against the rioters. but if you pay a man for his damages, what security is there that he will follow up his suit; or, is it not evident that such previous compensation will greatly damp his ardor? mr. s. said, that if previous notice were given of government being ready to pay the damages, in case they could not be recovered before a court of law, there certainly never would be found a jury to bring a verdict against a private person. for this reason mr. s. was entirely against the resolution at this time. what he might do hereafter, he would not say. there was only one case wherein he could be induced to advance money. if any of these persons could prove that they had been reduced by the rioters to such poverty that they were unable to prosecute their claims in a court of law, it might then perhaps be expedient to advance for them the expenses of the suit. but the interposition of the house at this period would affect the claims very greatly, and thus confer on the rioters themselves a favor which mr. s. was very unwilling to bestow, as he would wish them prosecuted to the utmost. before the meeting of next congress, it might be ascertained what could be made of these prosecutions, and then, and not till then, mr. s. would think it proper to enter on the discussion suggested by the report of the select committee. mr. dexter drew a distinction between persons suffering by an open enemy, whose approaches they could not avoid, and those who suffer voluntarily. the claim for compensation was complete, and we should do the parties injustice if they did not receive full satisfaction. mr. boudinot withdrew his amendment, under the idea that the particular cases would hereafter come before the house. the question therefore reverted to its former shape, shall the words "and other citizens" be struck out. mr. dayton, in opposition to mr. dexter, considered the government of the united states as more justly bound to make reparation to the people who suffered by the robberies and conflagrations perpetrated by british soldiers than to compensate the sufferers in the four western counties; for those whose houses were burned, and whose property was destroyed by the british, had no quarter to which they could look for relief except to their own government. the people to the westward, on the contrary, had it in their power to prosecute the rioters, who were well able to pay them. mr. dexter had said that the losses of the persons ruined by the british were upon record. perhaps, said mr. dayton, they will always be on record; but nobody supposes that we shall ever indemnify these losses. he thought it prudent for the present to restrict relief to the officers of government alone. the question was about to be put, on the amendment proposed by mr. nicholas to the first resolution in the report of the select committee, when mr. scott rose. he said, that if there had been a proposal devised to weaken the hands of government in the four western counties, there was no one thing which could have effected that point so completely as the striking out of these three words, "and other citizens." if gentlemen would only reflect for a moment, he would ask them how they thought it possible that any civil officer, after the adoption of such an amendment, would ever be able to raise a posse in that part of the country? who would hereafter venture to defend the life of an excise officer, when the world has been told, that individuals do it at their own hazard, and cannot look to government for any compensation? who will hereafter admit an excise officer into his house, if that house may, with impunity, be burned about his ears? as soon as this amendment has gone abroad, every body, instead of assisting the officers of the revenue, will strive to keep out of their way, and have nothing to do with them. if there never had been any thing said about making a compensation to other citizens, perhaps there might have been little harm, or at least there would have been much less harm by forbearing to give them relief. but when the subject has been fairly brought forward by the president in his speech, and when it had been debated at full length in this house, when so much notice had been attracted, and so many hopes have been thrown out, to give, in the face of all this, a direct negative, would be the most impolitic step that could possibly be thought of. the committee then agreed to reject the amendment, and divided on the first resolution as it originally stood in the report of the select committee--yeas , nays . the second resolution was then put for enabling the president to draw the sum of ---- dollars for the relief of the sufferers--yeas , nays . mr. smith then said, that seventeen thousand dollars had been mentioned in the committee as sufficient to pay the whole damages. he proposed to fill up the blank with eight or ten thousand dollars, on account, till they should see what was to be the final amount of the claims. mr. hillhouse and mr. kittera both objected to this proposal. the committee rose. the chairman reported that the committee had agreed to the report of the select committee without any amendment. the house were about to take up the report, when mr. sedgwick said, that he was really concerned at thinking that there could have been any division at all about such a thing. he still hoped that a measure might be adopted which would produce unanimity on the subject, and would have a much better effect than such a division. the bill appropriating one million one hundred and twenty-two thousand five hundred and sixty-nine dollars and one cent for the expenses of the militia in the western expedition, was read a first and second time, and referred to a committee of the whole to-morrow. wednesday, december . _pennsylvania insurgents._ the house resumed the consideration of the report of the select committee on that part of the president's speech respecting compensation to the sufferers by insurgents in the western counties in pennsylvania. when the first of the two resolutions in the report was read, mr. swift objected to the granting of immediate indemnification, on much the same ground as he adopted yesterday in the committee of the whole. he inquired how a person, with a compensation from that house in his pocket, could appear in a court of justice to prosecute a rioter for damages, when the judge, the jurors, and every one in court knew he had been indemnified? he enlarged, at some length, on the great pity that it would be to let those rioters and rebels escape so; and, after they had cost government above a million of dollars, that they should not be obliged to pay these sixteen or twenty thousand. mr. lyman hoped that the house would give the money, and have done with the business. mr. nicholas.--the more he considered this question, he was the more convinced that the house are involving themselves in embarrassment. are you not told (said he, alluding to what had been urged by mr. swift) that, by paying these claims in the first instance, you are cutting the sinews of civil process? in any future commotion of this kind a person who has lodged an exciseman may have his house burnt from private spite against him, and not because he interfered in favor of a revenue officer. then you are bound, by this precedent, to indemnify him; and how can you distinguish what was the real motive to that outrage? he believed it impossible ever to bring government to such a state of perfection as that all losses suffered in defence of it should be indemnified at its charge. where is the difference between this case and that of indemnifying the losses at sea by the british? yet that proposal was rejected. where is the gentleman who will say that he believes people will put themselves to the trouble of prosecuting, when they know that the money, if recovered, must go into your pockets again? let us put the case, that a jury in the western counties, where these points must be tried, shall find any of these people entitled to less than what you have bestowed upon them? can you then recover the money back again? it is said that this resolution embraces but a few instances, and these of the most meritorious kind; but, in reality, it includes all citizens who have suffered. what will this comprehend, or, rather, what will it not comprehend? he supposed that the design was that the commissioners appointed by the president for that effect should be sent into the western counties to ascertain the damages. mr. n. concluded by declaring that nothing which he had heard could induce him to go to the extent proposed; and, by giving money at present, the prosecutions would all come to nothing. mr. murray hoped the first resolution would succeed. he really thought that the reasoning of the gentleman from virginia (mr. nicholas) would extend to the exclusion of general neville. mr. madison remarked, that great respect was due to this proposition, both on account of the interesting occasion that produced it, and of the quarter from whence it came. but the more he revolved the subject in his mind, the more he was convinced that great circumspection was requisite, and that the house, for many reasons, ought to take as much time in deliberating upon what they ought to do as the nature of the subject will admit. he recommended the proposal of some gentlemen to let the affair lie over to next session. it is no doubt proper to encourage a spirit for suppressing insurrections, and this measure is certainly calculated to promote that spirit. but, in his judgment, mr. m. feared that it would likewise encourage insurrections. a great body of people were commonly engaged in such disturbances who were not worth hanging, and to whom an established government usually held out an amnesty. by this means great multitudes came in, and received pardon before the operations of chastisement began. the mob, therefore, would in this case reason thus: as a crowd, we have a good chance to escape the gallows. let us then plunder as fast as possible, because government will disburse the loss, and we shall not be forced to disgorge our booty. mr. m. thought that speculations of this kind might be entertained by future insurgents, if the house were instantly to vote a complete indemnification to the sufferers. mr. m. held the highest respect for the arguments and feelings of gentlemen who espoused the other side of the question. what he himself had just now suggested, he did not regard as decisive considerations, but yet as considerations of weight. his own impression was to let the matter lie over till the next session, and then those who had done their best in prosecuting would come forward to that house to claim compensation under the most auspicious circumstances, and all which they shall have recovered will be saved to the state. mr. boudinot differed in some degree from the gentleman who spoke last. he was for doing something at present, though not so much as was implied in the first resolution. he recapitulated the danger that would arise from slackening the efforts of people to prosecute the rioters. he entirely dissented from the principle laid down by some gentlemen, that government was in all cases bound to indemnify the losses sustained by its citizens from foreign or domestic outrage. in the war with britain there were great numbers of people who chose rather to fight it out to the last, and permit their houses to be burnt by the british troops, than accept of terms which they might have obtained. mr. b. again proposed the amendment which he laid yesterday before the committee, viz: that after the words "and other citizens," there should be inserted, "personally aiding and assisting them." this he thought sufficient in the mean time. mr. heath declared himself against the resolution as unsound policy. he feared that it may be an encouragement to future mischief. when an officer of the revenue finds that he is to be so easily paid--to be paid a double value for the burning of his house--will not this slacken his ardor in defence of it? who has not heard of the rebellion of _shays_, where a great deal of property was destroyed? people there began at the right end of the business. lawsuits were commenced against the rebels, and damages were recovered. pray, would it not be a proper bar to the recovery of damages in a court of law to say government has paid you? will not these people who suffered by the tories in the last war come next, with open mouths, and demand indemnity? we shall next have those citizens who lately suffered by the pirates of britain hastening to demand compensation. mr. h. considered this as the most important question which had come before congress during the present session. he concluded by saying that he would bear his testimony against this resolution. mr. carnes was of the same opinion. mr. murray had said that it would be impossible to find a jury in the western counties who would give honest damages against the rioters, because almost every body was on their side, and there would be no possibility of finding a jury who would pass an equitable verdict, unless recourse was had to the odious and execrable practice of packing juries. this remedy was worse than the disease; and from this mr. murray inferred the futility of compelling the sufferers to wait for the result of hopeless prosecutions, and the propriety of immediately paying the damages. mr. carnes asked the gentleman whether his knowledge as a lawyer did not inform him that an upright jury might be selected without having recourse to the infamous expedient of packing? when a jury were chosen, the prosecutors would be at liberty to except against them; and if they were either men of bad characters, or in any shape connected with the rioters, these exceptions would be admitted, and this process would go on till a respectable jury could be chosen. this was quite distinct from any thing like packing. he considered this explanation as a satisfactory answer to the arguments advanced by the member from maryland; and he entertained a better opinion than that gentleman seemed to possess of the jurymen in the western counties. mr. c. foresaw many bad consequences that might possibly flow from this alacrity in discharging damages. what if there should be a collusive insurrection between two parties, and then, instead of twenty thousand dollars, we shall have to discharge a bill of perhaps an hundred thousand, or twice that sum? he considered it as good a plea in bar of prosecutions to say, government has paid you. but if we are so fond of indemnifying people who suffer losses, the house may begin by satisfying the settlers in the back part of georgia, where the creeks within the last ten months only have done mischief to the extent of five or six hundred thousand dollars. he should be glad to hear the house disposed to indemnify these people, but it was what he did not expect. he could not see why these sufferers were not as much entitled to compensation as the others in the four western counties. as to the creeks, the state of georgia was neither at war nor peace with them. peace it was called, but in the mean time the savages were committing incessant murders. reverting to the question before the house, mr. c. said, that it would be most impolitic to proceed at present in the payment of these losses; and he was convinced that the president himself, when he made the reference in his speech, did not intend that the thing should be acted on immediately. mr. c. hoped that there would be a delay for the present session. the best way to ascertain the real extent of the damages was to leave the matter to the decision of a jury. when juries have determined this point, then, if the rebels cannot pay, give satisfaction to the sufferers in terms of the verdicts. the member from maryland had said, that damages could not be accurately specified by a jury. yes. if you pay nothing at present, but, if you pay at present, the action is barred. mr. c. had not entirely formed his opinion on the question of compensation, but he was satisfied that it was better to make a delay. mr. dexter, in reply to the supposition that this compensation would encourage future insurrections, gave it as his opinion that it would be the means of preventing them. an insurgent would say to himself, "i might escape from the prosecution of my neighbor, but, when the united states assist him, i cannot stand against both." mr. d. conceived that the meaning of the resolution had been mistaken, and he placed the question in a light entirely new and unnoticed by any former speaker. gentlemen had spoken as if the resolution went to the immediate and complete discharge of the whole damages, and upon this many arguments had been founded. this idea was an entire mistake, for the first resolution went only to ascertain the real extent of the damages, and did not pledge the house to pay the total amount of them. he considered this as a very material distinction, and which, in a great measure, obviated many arguments on the opposite side of the question. mr. d. did not think, with the member from georgia, that the same rule applied to the south-western settlers of that state and to parties in the present resolution. the people on the frontiers have "placed themselves in a place of danger knowingly." the creeks were an open enemy, but the insurgents were an unexpected one. mr. d. proceeded at great length to make a distinction between the two cases, and concluded by saying that the second resolution, which, as well as the first, he hoped would pass, went only to a temporary relief. mr. hartley also placed a part of the question in quite a different light from any former gentleman. since he had been a member of that house he had found occasion to read a good deal of law, and, from that knowledge of law, he had, yesterday, in the committee, informed the house that neither general neville nor any body else could obtain damages against the rioters in a civil action. all the arguments, therefore, which had been advanced as to whether equitable damages could be recovered before a jury, proceeded upon an error, because no civil process whatever would lie in the case. if the house were disposed to doubt his own opinion, mr. h. could now give them that of the first law officer in pennsylvania. since yesterday mr. h. had consulted that gentleman, who gave it as his express opinion that the greater crime absorbs the lesser; that a case of this kind is only a criminal action, and that no penal damages can be recovered. the crime is liable to a capital punishment; he did not mean to death; but to such a degree of punishment as the offence should be found to deserve. mr. h. added, that if people had known that they were to be indemnified for their losses by the united states, a much greater number would have stood by the law than did so. it was not the fear of personal danger which prevented people from resisting the insurgents; it was apprehension of having their barns burned down in the night time. mr. dexter interrupted mr. hartley to inquire whether, by the laws of this state, the property of an insurgent is forfeited for his crime? mr. hartley replied that it was not. mr. dexter then remarked, that it was very absurd to say to a man, "you are an insurgent; you have committed a great deal of mischief, but you are so very deep an offender that i cannot recover damages." mr. hartley rose again to give some further explanation, when the speaker announced that he had something to communicate to the house. mr. hartley sat down, and the speaker said, that he had received from the president some important and confidential communications, which it was requisite to read in the house this day. it did not appear that they would decide on the first resolution at present, and there was not now more time left before the common hour of rising than would be necessary for reading the communications from the president. the debate was instantly deferred, and the galleries cleared. friday, december . william irvine, from pennsylvania, appeared, and took his seat in the house. _pennsylvania insurgents._ the house resumed the consideration of the resolutions reported on wednesday last, from the committee of the whole house, on the report of the committee to whom was referred that part of the speech of the president of the united states which relates to the policy of indemnifying the sufferers by the depredations of the insurgents in the western counties of pennsylvania. whereupon, the first resolution being under consideration, in the following words, to wit: "_resolved_, that the president of the united states be requested to cause an ascertainment to be made of the losses sustained by the officers of government and other citizens, in their property, (in consequence of their exertions in support of the laws,) by the insurgents in the western counties of pennsylvania." the amendment of mr. boudinot, on which the house had been debating on wednesday, was read. it was for the insertion, after the words "and other citizens," of the following addition: "personally aiding and assisting them." mr. hartley then rose, and spoke as follows: i have no great encouragement to speak, when i find that my expressions and language have been totally mistaken, both by gentlemen in this house and by the person who frequently reports the debates. on tuesday, i had ventured to say, that i thought no great reliance could be had upon the individuals injured obtaining satisfaction by personal actions against the insurgents; that i imagined the civil remedy was merged in the offence of arson against the state, or perhaps a higher offence; that, from the state of things, we could not promise ourselves that the sufferers would be compensated by civil suits. on wednesday, i mentioned to the house, that, though there had been much discussion, yet, as i considered part of the house to labor under what i held to be a mistake with respect to the _lex loci_, or law of the state, which we were obliged to take into view, i held it my duty to observe, that, the day before, i had said that i thought the smaller offence, that is, the civil injury, had been merged in the greater against society; that the offence, so far as related to the state, would be arson, which had been a capital offence, punishable with death, that the punishment had been mitigated by the alteration of the penal code, but still it was a felony. i noticed that i had formerly read law a good deal with considerable attention, but since i had been in congress, i had not been able to bestow much time upon it. i said that formerly certain principles or maxims had made impression upon my mind; that, among others, was the one under consideration, that, in arson, the injury to the individual was merged in that against society, or, at least, must give way to the other; and public justice must be done in the first place. i mentioned that i had consulted one of the first law officers of the state, which is true, and he agreed with me in opinion. indeed, he added, that no reliance should be had upon the personal remedy, but that compensation ought to be made to the sufferers. i have no reason to change my former opinion. really, when i consider the conduct of the commissioners to those who made their submissions, i should imagine it was the intention of the parties that there was to be an oblivion as well of the civil as the criminal offences to those who submitted; and, as the legislature has the power to construe the agreement, it becomes her rather to do it with magnanimity than otherwise. your officers, and those aiding and assisting them, ought to be protected and supported. i will now say, as i did the other day, that the fear of having their houses or barns burned, terrified many a man in the western country from joining the standard of the law, and forced him to temporize with rebellion. when the officers know that they are to be protected in their persons and property--when the _posse comitatus_ are informed that they are to be regarded in like manner--we may expect energy in the execution of the laws. the law of pennsylvania is defective, or at least doubtful; and, if the present punishment for arson continues, the legislature of that state will, i dare say, point out a decided remedy for the party injured against the offender. it becomes the honor and justice of the legislature to protect and support the officers, and those aiding them. i shall, therefore, vote for the amendment. mr. venable differed entirely from the gentleman who spoke last. he understood that pardons extended only to the offences against government. it would, for that reason, be no hardship against the people who had received pardons to prosecute them for civil damages; and, by the statement of the member himself, actions would lie where no public prosecutions had been made. mr. swift was of opinion that the member from pennsylvania (mr. hartley) was most certainly mistaken in point of law, when he imagined that the pardon granted by the commissioners extended, or might be construed to a remission of civil offences. he did not believe it to be in the power of government to pardon these rioters and trespassers to that length. he did not expect that the gentleman from pennsylvania would have stood up in the house to recommend an unqualified pardon. when a million of dollars had been expended, were the house to give them fifteen or twenty thousand dollars more? he did not come there prepared to hear of a premium for insurrection. he rejected all idea of so much tenderness for rioters and rebels. mr. boudinot rejected all idea of the rioters being exempted from civil suits. there was but one exception, where they were executed for their crimes. he had no other view of the matter, but as a question of policy--whether it was expedient, or the contrary, to prosecute these people. he believed that, before the new constitution, the law stood as the member from pennsylvania represented it. but all this was much from the purpose. by far the greater number of the rioters have accepted the amnesty. nobody imagines them exempted from prosecution. to prevent any misconception of this nature, the commissioners, in the terms of pardon which they held out, expressly warned the people that they were to be liable to civil actions for the damages committed. it was needless, then, to embarrass the question with more difficulties than naturally belonged to it. he was satisfied that this was a mere question of policy, whether it was better to pay off these people at once, or let them first try the effects of civil actions. mr. dayton rose and asked, "who shall decide, when doctors disagree?" who shall declare what is the law, when the learned gentlemen of the bar are so directly opposed to each other? the house (mr. d. observed) had, by some means, imperceptibly, and, he thought, unnecessarily, been drawn into the discussion of a common law question. law had been aptly compared to a bottomless pit, and the sooner, therefore, that they extricated themselves from it, the better. very fortunately, (he said,) there existed no necessity for determining, in the present cases, upon any intricate point of law, as the proposals of amnesty, in their very terms, as well as in their nature, left each individual trespasser liable to suits at law on the part of the friends of good order, for the damages sustained by the one and done by the other. mr. d. was for allowing those prosecutions to go forward, and was well informed, not only that there was far more than sufficient of the property of the insurgents to make compensation, but that it was probable they would agree together, and make up the whole among themselves, rather than be vexed by lawsuits. he could not agree with those gentlemen who expressed a wish to vote for the whole amount of damages, immediately to be paid from the treasury. he did not believe with them, that such a measure would promote the dignity, or manifest the justice, of the government. this would be to enter into an improper compromise with guilt. it would be to make peace with sedition, in a way that might tend to encourage rather than, to discourage it in future. we were obligated, upon principle and precedent, to ensure indemnity to those officers of government, who, in consequence of a prompt and steady discharge of their duty, had suffered in their property from the resentment of the insurgents. but he wished not to do more, until the result of actions at law could be ascertained. although the government may offer a pardon for offences against the public, yet nothing was more clear than that the general amnesty did not, and could not, exempt the seditious offenders from answering to private persons for injuries done to them in their property. mr. hartley rose to explain. the gentleman from connecticut (mr. swift) had mistaken his meaning. he was going on, when mr. dayton rose, and declared that he had never put any such construction on the words of the gentleman, who certainly must have misapprehended him. i did not mean you, sir, (said mr. hartley,) i said the gentleman from _connecticut_. you made a mistake of the same kind with me last session. the amendment of mr. boudinot was, on a division, lost--only twenty-six gentlemen rising when the question was called for. the question on the first resolution was then called for; when it was moved to take the previous question, that is to say, "shall the main question be now put?" mr. fitzsimons rose. he thought that this discussion comprehended a principle of the most important nature. he trusted that it would not be got rid of in this way. he was not of opinion with those gentlemen who were disposed to waive the question just now, under the notion that they should have an opportunity of voting for it at another time. he believed that the true design of moving the previous question was to lay it aside altogether. this expedient should not answer the end; for, if he had only one other gentleman in the house to second him, he would stand by the matter until he obtained an explicit answer. mr. mcdowell vindicated the propriety of taking the previous question. mr. sedgwick said, that when the british carried on a most unjust war against this country, the ministry who began it were in time turned out. their successors had always reprobated the war, but, after the peace, they, notwithstanding, had expended several millions to support the loyalists. while the british had acted with so much liberality, did it become americans to stick at the paltry sum of seventeen thousand dollars? the house had wrangled so long about this matter, that the very wages which they received for the time spent in this discussion would about have discharged the whole sum in dispute. when a wild, unprincipled, mad attempt had been made to destroy this noble constitution, were the representatives of this people to make it a doubt whether those who saved it from, perhaps, destruction, were to be indemnified? mr. s. declared that he felt more unpleasant sensations than he remembered ever to have experienced since he became a member of this house. gentlemen might argue and argue about this drop in the bucket compared with the ocean. they might go into metaphysical deductions about whether the men who saved this constitution were, some of them, to be reduced to beggary and misery, as the price of having done so. he would bring up the question again and again, until he had the sense of the house again. mr. s. repeated the following argument, which he, on a former day, had pressed. he asked whether persons who, from the pure, conscious dignity of the republican character, stepped forward to support the government, did not deserve better of it than excise officers, who were bound to and paid for their services? he was even of opinion that the conduct of the private soldiers in this case was more meritorious than that of the officers. he might be mistaken, but his opinion was so. from this language it is not to be inferred that mr. s. undervalued the exertions of the officers of the army, or of the excise. he only meant that the less interest or emolument which an individual has at stake in the success of an affair, the greater is his merit in performing it. he asked what better time there was than the present for settling the amount of these claims? mr. heath was for the previous question. he thought the resolution unseasonable at this time. however little the gentleman chose to think of seventeen thousand dollars, they might grow into a precedent for seventeen hundred thousand dollars. mr. boudinot thought that the seventeen thousand dollars were not the whole of the damages that might be claimed. when commissioners were sent to the westward, the demand might rise to seventy thousand. numerous other requisitions might start up. he was for taking the previous question. mr. dexter regretted his necessity to differ from a gentleman (mr. boudinot) for whose opinions he was in the habit of entertaining the highest respect. he was against the previous question, because he disliked obliquity. whether he was against or for the first resolution in the report of the select committee, he would give the resolution itself a fair meeting. he then inquired what better time there could be for learning the number and extent of the losses than the present? he again explained, as on wednesday, that the house appeared to mistake the extent of the resolution, which did not imply any complete indemnification, nor even assure any relief at all. the whole amounted only to the taking of measures for obtaining information. he would not have voted for it, if he had thought that it promised complete indemnification. he thought that no future time could be so proper as the present for deciding. mr. swift, mr. kittera, and mr. gilbert, also spoke. mr. hillhouse went on the same ground with mr. dexter. he was one of the committee who drew up the resolutions. they never understood that the resolution implied an assurance of complete indemnity to the sufferers. the previous question was called for by five members, to wit: "shall the main question, to agree to the said resolution, be now put?" and on the previous question, "shall the said main question be now put?" it was resolved in the affirmative--yeas , nays , as follows: yeas.--fisher ames, james armstrong, john beatty, elias boudinot, shearjashub bourne, benjamin bourne, lambert cadwalader, david cobb, peleg coffin, jonathan dayton, henry dearborn, samuel dexter, gabriel duvall, william findlay, thomas fitzsimons, dwight foster, ezekiel gilbert, nicholas gilman, henry glenn, benjamin goodhue, james gordon, andrew gregg, samuel griffin, william barry grove, thomas hartley, daniel heister, james hillhouse, william hindman, samuel holten, john wilkes kittera, henry latimer, amasa learned, william lyman, francis malbone, william montgomery, peter muhlenberg, alexander d. orr, john page, josiah parker, andrew pickens, thomas scott, theodore sedgwick, william smith, george thatcher, uriah tracy, jonathan trumbull, philip van cortlandt, peter van gaasbeck, peleg wadsworth, john watts, benjamin williams, and richard winn. nays.--theodorus bailey, thomas blount, thomas p. carnes, gabriel christie, joshua coit, george dent, william b. giles, james gillespie, george hancock, carter b. harrison, john heath, john hunter, richard bland lee, matthew locke, james madison, joseph mcdowell, alexander mebane, andrew moore, anthony new, john nichols, nathaniel niles, robert rutherford, john s. sherburne, jeremiah smith, israel smith, zephaniah swift, thomas tredwell, abraham venable, francis walker, paine wingate, and joseph winston. mr. gilbert then moved a resolution, the substance of which was understood to be to ascertain whether the losses in the western counties were incurred in defence of government, and how far the sufferers were capable to carry on the lawsuits themselves against the rioters. mr. giles, was against the amendment, the resolution itself, and the whole mode of conducting the business. he had listened to many long speeches, and been surprised that no gentleman had made the observation which he was now going to submit to the house. [the noise had by this time become so intense, that the speaker rose and reminded the members of a rule that there must be no private conversation while a member addresses the chair.] mr. g. then proceeded to declare that he disliked the form rather than the substance of the resolution. if people in the western counties had suffered injuries, why should not they, as well as every other class of citizens, come to the bar of that house and petition? an inquest was, he imagined, intended, which would unite all the back country in one common interest against the treasury of the united states. the mode proposed by the report of the select committee was the most exceptionable of all that could have been devised. it was said that this was only an affair of seventeen thousand dollars. what evidence have we that the demand will stop there? sir, there is none. the mode is, besides, totally wrong. let persons who have suffered come here in the usual manner. it is said that a gentleman has had his house burned. let him come here and tell us so. mr. g. entirely scouted the idea advanced by mr. dexter, that we might inquire into the extent of the losses, without a design to discharge them. if you do not mean to indemnify, why inquire at all? he did not object to relieving the sufferers, but, to erect a board of inquest, under presidential direction, was what he never would consent to. he again repeated, that he did not mean to dissent from the principle, but from this most exceptionable of all modes for putting it into practice. let people lay memorials of their losses before the house, which would then see distinctly what it was doing, and examine the evidence on which the claim was founded. he wondered that none of all the speakers in the debate had adverted to this distinction. mr. hillhouse differed in every particular from the gentleman who spoke last. if petitioners come from the westward, they are referred to a select committee. they bring all the evidence which they can muster to swell their bill. the committee have no counter-evidence, as we in this house almost never hear more than one of the parties. it is much better to send persons to the spot who can examine the subject on both sides, which we cannot possibly do, and who will be responsible to this house for their conduct. the whole arguments and ideas of mr. h. were in direct contradiction to every thing advanced by mr. giles. he (mr. h.) was satisfied that, before we undertook to pay the losses of the western people, it was better, in the first place, to know the extent of them. the resolution amounted to nothing more than the ascertaining of this loss, and mr. h. could see many good reasons for deferring the payment of a bill until he knew the sum to which it amounted. he could also see reasons why the mode recommended in the resolution was much preferable to that of bringing people so far to the house. commissioners going to the spot could make themselves perfectly masters of the subject; whereas, if the parties come here, the matter will be decided on _ex parte_ evidence, as it always is. mr. boudinot considered the resolution as too loosely worded. a gentleman who had been on the expedition, and who had heard or read the report, observed to him (mr. b.) that he himself came within the resolution, as he had suffered considerably in his business by his absence. mr. hillhouse explained, that the resolution extended only to actual destruction. the committee never meant to compensate people for the loss which they had suffered by being banished. he was ready, if the house liked it better, to insert in the first resolution the words "property actually destroyed." this would prevent the misapprehension of the gentleman mentioned by mr. boudinot. the house divided on the amendment of mr. gilbert--ayes , noes . mr. hillhouse then moved to strike out the word "in" from the first resolution, and put into its place, "by the actual destruction of" their property. mr. madison apprehended that this amendment left the resolution as bad as it was before, if not worse. a person in the western counties had his horse stolen by the insurgents. but this did not imply the actual destruction or annihilation of the horse. the amendment meant either too much or too little. it certainly could be no improvement on the resolution. after some further discussion, the amendment was agreed to. and the main question being put, that the house do agree to the said resolution, amended to read as follows: "_resolved_, that the president of the united states be requested to cause an ascertainment to be made of the losses sustained by the officers of government, and other citizens, by the actual destruction of their property (in consequence of their exertions in support of the laws) by insurgents in the western counties of pennsylvania; together with a report of the particular condition of the respective sufferers, in relation to their ability to prosecute their several claims, and recover, at law, satisfaction from the insurgent aggressors." it was resolved in the affirmative. the second resolution on the subject of indemnification was then taken up in the house. mr. boudinot moved the following amendatory addition: "to aid such of the sufferers as, in his (the president's) opinion, stand in need of immediate assistance, to be accounted for by them in such manner as may hereafter be directed by law." the amendment was carried, forty-four gentlemen rising. the resolution, as amended, is as follows: "_resolved_, that the president be authorized to draw out of the treasury of the united states the sum of ---- dollars, to be applied by him to aid such of the said sufferers as, in his opinion, stand in need of immediate assistance, to be accounted for by them in such manner as may hereafter be directed by law." _ordered_, that a bill or bills be brought in pursuant to the said resolutions; and that mr. hillhouse, mr. findlay, mr. lyman, mr. watts, and mr. william smith, do prepare and bring in the same. friday, december . two other members, to wit: jeremiah wadsworth, from connecticut; and samuel smith, from maryland, appeared, and took their seats in the house. _naturalization bill._ the house again resolved itself into a committee of the whole house, on the bill to amend the act, entitled "an act to establish a uniform rule of naturalization." mr. giles proposed to amend the intended test of a citizen, by adding, after "two witnesses giving evidence as to his moral character," these words: "attached to a republican form of government." he thought this test proper, to prevent those poisonous communications from europe, of which gentlemen were so much afraid. mr. dexter preferred saying, "attached to the constitution of the united states." to this amendment mr. giles had little or no objection. mr. boudinot did not see the use of either amendment. it was only giving unnecessary trouble. the oath which the person himself must take, was sufficient for expressing his fidelity to the government of this country. mr. nicholas considered both the amendment, and the clause to which it was annexed, as unnecessary; and even if in themselves proper, they were misplaced. he thought both equally superfluous. they should have been inserted in the oath of allegiance of the man himself. mr. dayton hoped that the whole clause would be rejected. he should be against it, unless the nature of the evidence was referred to a court of justice. he foresaw many difficulties arising to poor men in attempting to get two such witnesses. it might suit extremely well with merchants and men of large capital, who had, he supposed, been alluded to the other day, under the title of meritorious emigrants. he was not so anxious for them as for useful laboring people, who, as he thought, would be more likely to do good. this class, however, had never, it was likely, troubled their heads about forms of government. he further objected to the amendment of the gentleman from virginia, that the word republican was entirely equivocal. this title was assumed by many governments in europe, which were upon principles entirely different from ours. some of them, such as poland, had been aristocracies of the most hideous form. mr. dexter hoped that the amendment of mr. giles would not pass, [mr. giles had, as before noticed, consented to withdraw it;] not so much for the sake of the principle, as of the language in which it was expressed. the word republican implied so much, that nobody could tell where to limit it. why use so hackneyed a word? many call themselves republicans, who, by this word, mean pulling down every establishment: they were mere anarchists. mr. hillhouse was equally against the clause and amendment. mr. dexter and mr. giles previously declared themselves extremely doubtful whether they should even vote for the clause, when amended in their own way. mr. giles felt himself extremely surprised to hear it asserted on the floor of congress, that the words "republican form of government" meant any thing or nothing. he read a passage from the constitution, whereby a republican form of government is guaranteed to each of the united states composing the union. he should, therefore, have imagined that the words were well understood from one end of the continent to the other. he did not expect such criticism. he was not sure if he should vote for the clause at all; but if he did so, he should wish the best to be made of it. he then altered his amendment to these words: "attached to the principles of the government of the united states." mr. dayton.--with all the ambition of that gentleman (mr. giles) to be called a democrat, both he and mr. d. would more properly be called republicans. he again vindicated his assertion as to the equivocal meaning of the word. a venetian or genoese might come to this country, and take the oath as proposed, and then excuse himself by saying, "it was the republican form of my own country which i had in view." one of the best writers on the british constitution had called that also a republic. mr. madison was of opinion that the word was well enough understood to signify a free representative government, deriving its authority from the people, and calculated for their benefit; and thus far the amendment of his colleague was sufficiently proper. mr. m. doubted whether he himself should, however, vote for the clause, thus amended. it would, perhaps, be very difficult for many citizens to find two reputable witnesses, who could swear to the purity of their principles for three years back. many useful and virtuous members of the community may be thrown into the greatest difficulties, by such a procedure. in three years time, a person may have shifted his residence from one end of the continent to the other. how then was he to find evidence of his behavior during such a length of time? but he objected to both amendments on a different ground. it was hard to make a man swear that he preferred the constitution of the united states, or to give any general opinion, because he may, in his own private judgment, think monarchy or aristocracy better, and yet be honestly determined to support this government as he finds it. mr. hillhouse then proposed as an amendment, to insert, that "evidence should be produced to the satisfaction of the court." mr. dexter mentioned the abuses that have happened in the present form of admitting citizens. he did not comprehend the argument of mr. dayton, that it would be more easy for a rich than for a poor man to get evidences to swear to his having resided in the country. if he had not, the fact was of a notorious nature. it would likewise be as easy for a poor man, as for a rich one, to get an attestation of his character. the point of residence was, in itself, but little. a man may have resided here for a long time, and defrauded the citizens, which would be no recommendation. several other gentlemen spoke. the resolution finally passed. the second resolution produced a long conversation, in the course of which mr. murray declared that he was quite indifferent if not fifty emigrants came into this continent in a year's time. it would be unjust to hinder them, but impolitic to encourage them. he was afraid that, coming from a quarter of the world so full of disorder and corruption, they might contaminate the purity and simplicity of the american character. the committee now rose, and had leave to sit again. monday, december . _naturalization bill._ the house again resolved itself into a committee of the whole house, on the bill to amend the act entitled, "an act to establish a uniform rule of naturalization." the motion before the committee, made by mr. venable, when they broke off the last discussion, had been to strike the word "moral" out of this amendment: "good moral character." these three words, altogether, were an addition of what was to be attested by the witnesses for a candidate to admission as a citizen. mr. dexter opened the debate on the amendment of mr. venable to the amendment by saying, that he wished to hear the reasons for it. mr. nicholas said, that he did not make the motion, but his colleague, who had made it, thought that the insertion of the word "moral" gave too strict an air to the sentence. this word might be hereafter implied to mean something relative to religious opinions. mr. sedgwick remarked, that if no better reason than that advanced by mr. nicholas could be given for striking out the word "moral," he could not agree to it. moral is opposed to immoral, but has no particular reference whatever to religion, or whether a man believes any thing or nothing. it has no reference to religious opinions. we can every where tell, by the common voice of the world, whether a man is moral or not in his life, without difficulty. in some states of the union, adultery is not punishable by law, yet it is every where said to be an immoral action. it is too nice to make a distinction between a good character and a good moral character. the word good itself is very equivocal in its meaning. it signifies any thing, every thing, or nothing. a good companion is one thing; a good man, as applied to wealth, conveys a different sense; and so on. mr. b. bourne considered the amendment itself and the motion of mr. venable to strike out the word "moral," as equally useless. mr. murray hoped that the word would not be struck out. this would be the greatest slander ever cast upon the american character. it would excite the surprise of foreign nations. mr. venable had thought the wording of the phrase too strict; but rather than have any further dispute, he withdrew his motion for striking out the word "moral." the clause was then read as amended. mr. gilbert thought that the term of residence, before admitting aliens, ought to be very much longer than mentioned in the bill. the chairman informed him that the term in the bill was left blank. mr. sedgwick agreed to the idea of mr. gilbert. he wished that a method could be found of permitting aliens to possess and transmit property, without, at the same time, giving them a right to vote. he did not know if the constitution authorized such a thing. after some further conversation, the clause passed. the third resolution in the report was then read; which was, that if an american citizen chose to expatriate himself, he should not be allowed to enter into the list of citizens again without a special act of congress, and of the state from which he had gone. mr. madison did not think that congress, by the constitution, had any authority to readmit american citizens at all. it was only granted to them to admit aliens. mr. sedgwick was very willing, for his part, that citizens who had once expatriated themselves should never be readmitted again. the committee, on two successive motions to that effect, from mr. madison and mr. giles, rose. the chairman reported progress, and asked leave to sit again, which was granted. wednesday, december . lemuel benton, from south carolina, appeared, and took his seat in the house. thursday, january , . _naturalization bill._ the house proceeded to consider the amendments reported yesterday from the committee of the whole house, to the bill to amend the act entitled, "an act to establish a uniform rule of naturalization." the house went through the report of the committee, and agreed to the amendments. mr. giles then rose to make his promised motion as to the exclusion of any foreign emigrant from citizenship who had borne a title of nobility in europe till he had formally renounced it. he proceeded to observe that, agreeably to the spirit of the constitution, we ought to have the strongest possible evidence that people of this description have renounced all pretence to a right of this nature, before we admit them into the bosom of society. moderation had been recommended. he requested gentlemen to observe that he conducted his motion on the strictest principles of moderation. he had, in a former part of this bill, voted for some clauses which were intended to guard the government against any disturbance from the people called jacobins, when their principles should run to a dangerous and seditious extreme. the same spirit of candor and moderation which had induced him to vote for a precaution against the attempts of the one party, now led him to propose a precaution against the prejudices of the aristocrats, which were, upon the whole, more hostile to the spirit of the american constitution than those of their antagonists. he also requested gentlemen to observe that his present motion went not to the invasion of any positive right. it left the individual exactly where it found him, unless he aspired to be an american citizen. otherwise, he might retain his titles undisturbed as long as he pleased. but if he wanted any promotion of a civil nature in this country, he must rise to it by conforming exactly to the rules laid down by the constitution itself. that code had declared no titled character admissible to any civil rank. it was not to be supposed that people born and nurtured in the lap of aristocracy would heartily renounce their titles, and become all at once sincere republicans. it was, therefore, highly improper that such people should be admitted. if we are allowed to anticipate probabilities, it seems highly probable that we shall soon have a great number of this kind of persons here. a revolution is now going onward, to which there is nothing similar in history. a large portion of europe has already declared against titles, and where the innovations are to stop, no man can presume to guess. there is at present no law in the united states by which a foreigner can be hindered from voting at elections, or even from coming into this house; and if a great number of these fugitive nobility come over, they may soon acquire considerable influence. the tone of thinking may insensibly change in the course of a few years, and no person can say how far such a matter may spread. after these, and other prefatory remarks, mr. g. read a resolution, which was in effect as follows: "and in case any alien applying for admission to citizenship of the united states, shall have borne any title or order of nobility in any kingdom or state from whence he may come, he must renounce all pretensions to his title before the court in which such application shall be made; and this renunciation must be registered in the said court." mr. g. observed, that previous to the late revolution, the french nobility were, by the lowest calculation, rated at twenty thousand; and as we may conclude on france being successful, a great proportion of these people may be finally expected here. mr. dexter declared that he was not very anxious against the resolution. he, however, opposed it. he imagined that, by the same mode of reasoning, we might hinder his holiness the pope from coming into this country. he entered at some length into the ridicule of certain tenets in the roman catholic religion, and said that priestcraft had done more mischief than aristocracy. mr. madison said that the question was not perhaps so important as some gentlemen supposed; nor of so little consequence as others seem to think it. it is very probable that the spirit of republicanism will pervade a great part of europe. it is hard to guess what numbers of titled characters may, by such an event, be thrown out of that part of the world. what can be more reasonable than that when crowds of them come here, they should be forced to renounce every thing contrary to the spirit of the constitution. he did not approve the ridicule attempted to be thrown out on the roman catholics. in their religion there was nothing inconsistent with the purest republicanism. in switzerland, about one-half of the cantons were of the roman catholic persuasion. some of the most democratical cantons were so; cantons where every man gave his vote for a representative. americans had no right to ridicule catholics. they had, many of them, proved good citizens during the revolution. as to hereditary titles, they were proscribed by the constitution. he would not wish to have a citizen, who refused such an oath. mr. page was for the motion of his colleague. it did not become that house to be afraid of introducing democratical principles. titles only gave a particular class of men a right to be insolent, and another class a pretence to be mean and cringing. the principle will come in by degrees, and produce mischievous effects here as well as elsewhere. if such men do come here, nothing can be more grateful to a republican than to see them renounce their titles. this does not amount to any demand of making them renounce their principles. if they do not aspire to be citizens, they may assume as many titles as they think fit. equality is the basis of good order and society, whereas titles turn every thing wrong. mr. p. said that a scavenger was as necessary to the health of a city as any one of its magistrates. it was proper, therefore, not to lose sight of equality, and to prevent, as far as possible, any opportunities of being insolent. he did not want to see a duke come here and contest an election for congress with a citizen. mr. sedgwick was really at a loss to see what end this motion could answer. he agreed with the arguments of mr. giles. but the point in view was explicitly provided for already. by taking an oath of citizenship, the individual not only renounces but solemnly abjures nobility. the title is destroyed when the allegiance is broken by his oath being taken to this government. this abjuration has destroyed all connection with the old government. why then provide for it a second time? mr. giles said, that by admitting a thing to have been once done, it was admitted that it might be done again. if it had been right to do it once, there could be no harm in repeating it. the member then quoted mr. dexter, who rose and declared that the gentleman had misunderstood him. he spoke for some time, and when he sat down-- mr. giles declared himself incapable of comprehending whether mr. dexter was for his motion or against it. he therefore proceeded to reply to mr. sedgwick, whose chief argument had been that the thing was provided for already. he did not suppose that this gentleman would allege the matter to be explicitly provided for. it only could be so by implication; which was a very bad way of making a law, because it gave room for endless disputes. if the thing is in itself right, why refuse to vote directly for it? why leave it only to be implied? he wished to let foreigners know expressly the ground upon which they stood. why not tell them at once, and in plain english, you must renounce your titles before you can have the privileges of an american citizen? mr. g. pressed home this idea more than once. he meant no act of inhospitality to these emigrants. he would deprive them of no right, nor do any thing unkind to them. but he was entitled, by the spirit of the constitution, to withhold this right from them till they renounced all hereditary titles. this was no incivility. he concluded by declaring that he would, if supported, call for the yeas and nays on this question. a number of members rose to support this proposal. mr. nicholas had no objection to the motion, but that it did not go far enough. the emigrants ought to be obliged to swear not only that they abjured all titles hitherto received, but that they would never accept of any in future. he believed that this would hurt their feelings, and, sympathizing with them, he would not urge a proposal that might add to their distress, but should vote for the motion as it stood. mr. scott was sorry that so much time had been spent on the motion. we are not by the constitution authorized to make titles; and he apprehended that if it was unlawful to manufacture a commodity at home, it was unlawful to import it from abroad. on this account he was for the resolution. if once we allow the thing to be manufactured at all, he had no doubt but titles would be as prevalent here as in britain. he should think it very odd to see a man sitting opposite to him in that house, with a star and garter on his breast. the emigrant was as welcome to wear them as to wear his hat. only let him wear them out of doors. mr. tracy thought that more time had been spent upon the subject than it was worth. he mentioned the proceedings of the french convention, who, some time before they cut off the head of the duke of orleans, debated four days upon what name they should give him, and at last called him _egalité_. he feared that calling for the yeas and nays thus early would look like party, as if intended to cast an odium on gentlemen who should vote against the motion. mr. dexter would vote for the resolution, if the gentleman would agree to an amendment; which was, that he renounced all possession of slaves. mr. thatcher moved as a second amendment, "and that he never will possess them." the words of mr. dexter's amendment were nearly these: "and also, in case any such alien shall hold any person in slavery, he shall renounce it, and declare that he holds all men free and equal." mr. giles said, that he should begin to think his motion of very peculiar importance, if such extraordinary resources were adopted to disappoint it. he was sorry to see slavery made a jest of in that house. he understood this to be intended as a hint against members from the southern states. it had no proper connection with the subject before the house. he had therefore no scruple in voting against it. it was calculated to injure the property of gentlemen. as to slavery, he lamented and detested it; but, from the existing state of the country, it was impossible at present to help it. he himself owned slaves. he regretted that he did so, and if any member could point out a way in which he could be properly freed from that situation, he should rejoice in it. the thing was reducing as fast as could prudently be done. he believed that slavery was infinitely more deprecated in countries where it actually existed, and consequently where its evils were known, than in other countries where it was only an object of conversation. gentlemen had objected to calling for the yeas and nays. have not the public a right to know the sentiments of the house on every question? was it any unusual thing to call for the yeas and nays? or was there any use for it but that the sentiments of every member might be known? mr. madison mentioned regulations adopted in virginia for gradually reducing the number of slaves. none were allowed to be imported into the state. the operation of reducing the number of slaves was going on as quickly as possible. the mention of such a thing in the house had in the mean time a very bad effect on that species of property, otherwise he did not know but what he should have voted for the amendment of mr. dexter. it had a dangerous tendency on the minds of these unfortunate people. mr. nicholas said, that mr. dexter had more than on one occasion hinted his opinion that possessors of slaves were unfit to hold any legislative trust in a republican government. he was solicitous that before mr. d. spoke on a subject, he would make himself in some degree acquainted with it. he ought to acquire some information as to the state of the country, otherwise his opinion would fall into contempt with those who knew it. mr. n. said, that gentlemen who possessed a thousand slaves in virginia had no more influence on their neighbor who had not one than that neighbor had on them. mr. dexter complained of the attempt to take the yeas and nays, as a design to hold up certain people to public odium. he would withdraw his amendment if the gentleman would withdraw his motion. mr. sedgwick rose in some warmth. he said that there was no design in calling for the yeas and nays but to fix a stigma upon gentlemen in that house as friends to a nobility, when they were no such thing, and to raise a popular odium against them. to propose an abolition of slavery in this country would be the height of madness. here the slaves are, and here they must remain. a question of adjournment was now carried by against . so the motion of mr. giles stands over till to-morrow. friday, january . _naturalization bill._ the house resumed the consideration of the amendments reported on wednesday last from the committee of the whole house to the bill to amend the act entitled "an act to establish a uniform rule of naturalization." whereupon, the amendment moved yesterday to the said bill being under consideration, in the words following, to wit: "and in case any such alien applying for admission to become a citizen of the united states, shall have borne any hereditary title, or been of any of the orders of nobility in the kingdom or state from which he came, in addition to the requisites of this, and the before recited act, he shall make an express renunciation of his title, or order of nobility, in the court to which his application shall be made, before he shall be entitled to such admission; which renunciation shall be recorded in the said court." a motion was made and seconded to amend the said amendment, by adding to the end thereof the words following, to wit: "and, also, in case such alien shall, at the time of his application, hold any person in slavery, he shall in the same manner renounce all right and claim to hold such person in slavery." on the question that the house do agree to the said amendment to the amendment, mr. bourne said he was against both amendments. he saw no use either for the one or the other. he recapitulated the numerous checks which the constitution had framed against nobility getting into it. he, therefore, with all these checks, could see no danger from it. so much for the expediency of the proposal. he next considered it in a different point of view. a foreigner comes, perhaps with a title, which he has derived from a long train of ancestors, and, with a very pardonable infirmity, he is fond, he is perhaps proud, of his badge of nobility. is it polite, is it generous, to force him to renounce it? if it is an hereditary title, he can renounce only for himself. his children shall inherit the right. mr. b. wished both amendments withdrawn. mr. rutherford said, the people of america had an exceeding aversion to the bubble of nobility. he had so much confidence in the wisdom, good sense, and public spirit, of the gentlemen in this house, that he was sure the amendment would be carried by a very great majority. he was equally certain that the amendment of the other gentleman (mr. dexter) would be rejected. it went to wound the feelings and alienate the affections of six or eight states in the union. he was against the yeas and nays. he wished for a silent vote. mr. mcdowell.--when the gentleman from massachusetts first brought forward the motion on the table, mr. mcd. could not think he was sincere, from the idea which he had formed of the candor and good sense of that gentleman. but, much to his surprise, mr. d. persisted in supporting the propriety of his motion, which is not only an indirect attack on the state governments, but even on the constitution of the united states, and on the members of this house who represent the southern states. this amendment not only tends to irritate the minds of members, but of thousands of the good citizens in the southern states, as it affects the property which they have acquired by their industry. thus it cools their affections towards the government, as they will find that one part of the government is about to operate on their property in an indirect way. the gentleman dare not come directly forward, and tell the house, that men who possess slaves are unfit for holding an office under a republican government. mr. mcd. recalled to the mind of the house the conduct of the people that compose the southern states, during the late war, and their struggle for american independence. he then bade the house review the behavior of their representatives, under the present government, and say whether they do not partake more of the republican spirit than the members from the eastern states. the latter, also, no doubt had members who did honor to the states which they represented, and to the united states. he thought the amendment of mr. dexter partook more of monarchical or despotic principles than any thing which he had seen for some time. what right had the house to say to a particular class of people, you shall not have that kind of property which other people have? this was the language of the motion, and he considered it as highly unjust. mr. mcd. wished the gentleman to consider what might be the consequence of his motion, at this time, when the west indies are transformed into an immense scene of slaughter. when thousands of people had been massacred, and thousands had fled for refuge to this country, when the proprietors of slaves in this country could only keep them in peace with the utmost difficulty, was this a time for such inflammatory motions? he was amazed that a gentleman of whom he had so high an opinion, could, for a moment, embrace an idea which was, in all points of view, so extremely improper and dangerous. mr. dexter chiefly excused his motion because the other gentlemen had been for taking the yeas and nays. the tenor of his argument seemed to be this: you want to hold us up to the public as aristocrats. i, as a retaliation, will hold you up to the same public as dealers in slaves. mr. d., however, did not wish to irritate. he, for that reason, withdrew his motion, under the hope that the yeas and nays would not be taken. mr. giles said, that no person could be more anxious than himself to conciliate. but he could not submit to purchase conciliation by sacrificing his opinion, or betraying his duty. he should, on that account, stand by his amendment. it had been said that he called for the yeas and nays for the purpose of holding up to popular detestation a certain party in that house. such an idea had never entered into his mind. he then commenced a vindication of the propriety of his amendment against the observations of mr. bourne, who had, among other things, alleged that it had no proper relation to the spirit of the naturalization bill. after defending it, on this quarter, mr. g. proceeded to answer something that had been alleged yesterday against his amendment. this was that it had been calculated to hold up an idea to the world, that there was a party in that house in favor of aristocracy. if there is no such party, a general vote for the amendment will prove that this report is without foundation. in reality there is no connection between the amendment and any such scheme. the idea must have been in the head of the member himself. it is not the amendment, but the use which the gentleman makes of it, that can have any tendency that way. mr. g. never could have thought of such a way of holding up a party. as to the amendment of mr. dexter, he, mr. g., held property sacred, and never could have consented to prohibit the emigrant nobility from having slaves any more than other people. but as for titles of nobility, they were quite a different thing. they were but a name, and people were not obliged even to give them up, unless they wanted to become american citizens. as the call of yeas and nays had given such uncommon uneasiness, he, for his own part, should give it up. he was careless how the vote was taken. the other gentlemen who supported his call might act for themselves. mr. lee said, he hoped that to-day the question would have been taken without further debate; he had no disposition to say any thing more on it, and should have remained silent if his colleague (mr. giles) had not made some strictures on the observations which fell from him on the preceding day. mr. l. always thought the eastern and southern states were well situated to unite on terms of the greatest reciprocal benefit. that, for the good of his own country, he valued such a union above all things. he knew, in particular, that it was highly important to the interests of the people whom he represented, to conciliate the cordial and affectionate esteem of their eastern brethren. that this was not only important to his constituents, but to the whole state, and all the southern country; as on it must materially depend the preservation of our union, which mr. l. feared was more necessary to our safety and prosperity than to theirs. mr. l. said, he never saw any reason to suspect the eastern people of anti-republican principles; that there was no just ground to accuse them of such principles in any manner. mr. l. had always thought that the southern country had no right to claim a superiority over their eastern brethren in republican virtue. mr. l. always lamented that his country was not, in some points, so fortunately situated as the eastern states; but still, he rejoiced to find just ideas of liberty, and a proper respect to the rights of men, animating all the citizens of it; and in public virtue they had a right to rank with their brethren to the north and east of them. mr. l. thought that his colleague's strongest argument was the corrupting relation which existed in europe between noblemen and their dependants. mr. l. feared that this argument might too readily be extended to the situation of this country, and conclusions very disparaging to their republican virtue drawn from it, from which he had felt it his duty to vindicate them. mr. l. believed that the people throughout america were all animated by an equal zeal for the liberty and happiness of their country. as a person, therefore, anxious to preserve our harmony and union, he always felt pain at any question, which was, in any degree, calculated to excite suspicions of each other, and produce enmity, when concord was so much the interest of all. this proposition had, to his mind, a very denunciating aspect; and, as such, he felt it his duty to discountenance it, and every thing of the same sort, without presuming to ascertain or question the motives or designs of the mover. mr. l. could not help viewing the motion as capable of guarding us from no one danger, but as well fitted to produce unnecessary alarm and irritation. mr. l. was indifferent how the question was decided; but, being a friend to harmony and union, he could by no means countenance by his vote any thing that might be construed to denounce a most respectable and patriotic part of this house. mr. hillhouse observed, that when the amendment was first introduced, he considered it as altogether harmless and unnecessary; but, being friendly to what appeared to be the object of the mover, that is, keeping out privileged orders from among us, he was inclined to vote for it. yet, upon more mature reflection, he was of opinion that if the provision contained in the amendment had any effect at all, it would be a directly contrary one from what was intended, and would indirectly establish the principle that privileged orders might be introduced and exist among us, a principle which he wholly rejected and reprobated; and, as he did not doubt that the views of the gentleman who moved the amendment were similar to his own on that subject, he hoped that, upon further consideration, he (mr. giles) would withdraw it. it was his opinion that the ground upon which foreigners should be admitted to a share in the administration of our government ought to be narrowed in every possible way, and if the gentleman would so modify the amendment as wholly to exclude that class of foreigners, or any other, from ever becoming citizens, so far as to elect or to be elected to any office, he would most heartily join in giving his vote for it. in those nations where privileged orders are admitted, the benefits and advantages arising from it have been considered as merely local, so that, if a nobleman removes from one nation to another, he is not considered as carrying with him the privileges of his order; as, for instance, if a nobleman from any other nation removes to england, where an hereditary nobility is established by law, and even becomes naturalized, he is not a peer of england; he is no more than a private subject, and can claim nothing on account of his former rank. the convention who formed our constitution undoubtedly viewed the subject in that light, or they would have been equally anxious to have provided against the importation as of the creation of nobility; but, passing this amendment will, as far as the influence of a law and the opinion of congress can go, be putting a different and wrong construction upon the constitution, and will be admitting that there may be some other mode of introducing a privileged order or a nobility among us, than the one guarded against in the constitution; for, if a law is passed requiring a person, before he shall be admitted to a certain privilege, to renounce some other privilege, it is clearly admitting that such person does or may possess such privilege, otherwise the law is futile, requiring a person to renounce what he does not or cannot possess. mr. j. wadsworth rose next. he had been up four times before, but, other gentlemen always rising along with him, he had sat down again. mr. w. said, that a rage against nobility and privileged orders now pervades the whole world. he really did not see the use of this amendment. it put him in mind of an old law which, within his memory, had been in use. when a man had shot himself, his neighbors were not contented with the certainty of his being dead in this world, and damned in the next, but, besides all this, they drove a stake through his body. mr. w. regarded nobility as in a similar situation with such a man, for nobility appeared to him in the certain road to instant destruction; and this amendment of mr. giles, he thought, was like driving in the stake. the latter practice had been laid aside, and he thought that the amendment deserved the same fate. he reminded the house that the time had been when america was very much indebted to nobility, and very glad to see them fight her battles. we might now be taxed with ingratitude on that head, for some of those identical french noblemen, who, during the late war, had rendered us essential service, were now in this country in a state of beggary, subsisting on the charity of their friends. others of the same noblemen were in dungeons, and some again had got their heads chopped off. he was warranted to say that many of those noblemen, when here, during the war, and long before a french revolution had been talked of, were, in their hearts, as good republicans as any americans whatever. we had seen, some time ago, a party spirit rising in the united states. he had observed that the thing was dying away, but the present amendment would afford a new theme. the newspapers are extremely numerous, and he doubted not that the writers in them would embrace so notable an opportunity for exercising their talents. as to the notion that there was a danger of nobility being introduced into this country, the thing was held in such detestation in america, that he had no more apprehension of its obtaining a footing here than he had that there would arise a new race of men without heads, or with their heads placed below their shoulders, or any other unnatural production. in short, he did not know a thing so impossible as the establishment of an american nobility. knowing this, he regarded the amendment as entirely useless. as to the call for the yeas and nays having an impression on his vote, that was out of the question. he knew his constituents, and they knew him; and they were both too well acquainted with each other for a trifle of this nature to have any influence. to him the call was a matter of the utmost indifference, and he took this opportunity to declare frankly that he should vote against the amendment, whether the yeas and nays were called or not. mr. nicholas could not consent to abandon the proposition. it might be said that he did so in terror of the amendment of mr. dexter, which he thoroughly despised. mr. boudinot had not designed to speak on this question, but there was one objection to the amendment, which occurred to him, and which had not been noticed by any gentleman. this was, that it would be an act of injustice to make a man do an act in this country which might affect his own interest, and that of his family in another. this case might very possibly happen. a person, by renouncing nobility here, might he debarred from claiming its privileges in another place, when it would, perhaps, be for his advantage. mr. ames observed, that too much attention had been given to the amendment as an abstract question. nothing tended more to bewilder and confuse a debate than such a departure from the subject into abstractions and refinements; for, although by this means we found that plain principles were rendered obscure, and reasonable doctrines carried to excess, yet we did not seem to reflect that nothing is more opposite to just principles than the extremes of those principles. for instance, it would not be safe or proper indiscriminately to admit aliens to become citizens, yet a scrutiny into their political orthodoxy might be carried to a very absurd extreme. the merit of the amendment depends on its adaptedness to the end proposed by the bill, and what is that? to make a rule of naturalization for the admission of aliens to become citizens, on such terms as may consist with our tranquillity and safety. now, said he, do we think of refusing this privilege to all heretics in respect to political doctrines? even that strictness would not hasten the millennium. for our own citizens freely propagate a great variety of opinions hostile to each other, and therefore, many of them deviate widely from the intended standard of right thinking; good and bad, fools and wise men, the philosopher and the dupes of prejudice, we find could live very peaceably together, because there was a sufficient coincidence of common interest. if we depend on this strong tie, if we oblige foreigners to wait seven years, till they have formed it, till their habits as well as interests become assimilated with our own, we may leave them to cherish or to renounce their imported prejudices and follies as they may choose. the danger of their diffusing them among our own citizens, is to be prevented by public opinion, if we may leave error and prejudice to stand or fall before truth and freedom of inquiry. can the advocates of the amendment even affect apprehensions that there is any intention to introduce a foreign nobility as a privileged order? if they can, such diseases of the brain were not bred by reasoning and cannot be cured by it. still less should we give effect by law to chimerical whimsies. for what is the tendency of this counterfeit alarm? is it to rouse again the sleeping apparitions which have disturbed the back country? is it to show that the mock dangers which they have pretended to dread are real? or, is it to mark a line of separation between those who have the merit of maintaining the extremes of political opinions, and those whom this vote would denounce as stopping at what they deem a wise moderation? if that is the case, it seems that the amendment is intended rather to publish a creed than to settle a rule of naturalization. yet it should be noticed that those who would go to extremes are less entitled to the praise of republicanism than those who would not. mr. samuel smith was sorry for the turn which the debate had taken; though at first it bore a trifling appearance, it had since called up all the warmth of the house. the gentlemen from the eastern states, who knew the republican character of their constituents, and how independent every man there was, both in his temper and his circumstances, had slighted the amendment as unnecessary. gentlemen from the southern states, on the other hand, say that they have some reason to be apprehensive. why, said mr. s., will not the eastern members indulge us in this trifle? it is owned by the one party, that it can have no bad tendency; and the other imagine that it must have a good one. then why not, for the sake of conciliation, grant it? mr. murray was sorry that the house had begun the new year with such a discussion. he had seen with much pleasure the appearances of conciliation and unanimity at the outset of the session. he should vote for the amendment, and he hoped that those members who were against it would come round and vote for it. they would thus put an end to this motion, so wasteful of time. of nobility, however, the gentleman had no alarming apprehensions. there had once been in this house a baronet. he was there for two years before it was known, and it was then discovered that a baronet was a thing perfectly harmless. as for titles of nobility, he believed that all the wholesome and sensible part of the community looked upon the whole as stuff. when mr. m. contemplated this subject, it reminded him of holbein's dance of death.[ ] he saw nothing in this country but the ghosts of nobility. in europe, indeed, it was a matter of importance. it established the etiquette of precedence among the ladies in leading down a country dance. the amendment was not worth much either one way or the other. but he wished it to be granted for the reasons assigned by his colleague from maryland, who had spoke just before him. mr. madison. when the amendment was first suggested, he had considered it as highly proper, and naturally connected with the subject. no man can say how far the republican revolution that is now proceeding in europe will go. if a revolution was to take place in britain, which for his part he expected and believed would be the case, the peerage of that country would be thronging to the united states. he should be ready to receive them with all that hospitality, tenderness, and respect to which misfortune is entitled. he should sympathize with them, and be as ready to afford them whatever friendly offices lay in his power as any man. but this was entirely distinct from admitting them as citizens of america before they were constitutionally qualified to become so. in reply to the remark of mr. boudinot, that a renunciation of their titles might injure their families, mr. m. observed, that if a british revolution took place, these fugitives would, as aliens, be incapacitated from holding real estates. in discussing this question, we had been reminded of the marquis de lafayette. he had the greatest respect for that character; but if he were to come to this country, this very gentleman would be the first to recommend and acquiesce in the amendment on the table. he had urged the necessity of utterly abolishing nobility in france, even at a time when he thought it necessary for the safety of the state that the king should possess a considerable portion of power; and mr. m. believed, that if he were now at freedom, he was as completely stripped of every thing relative to nobility, as it was possible he could be. it had been said, that it was needless to make emigrants renounce their rank, and that oaths were no security. he was ready to allow, that oaths were, in any case, but a very poor security, but they had been adopted in other parts of the bill, and the same reason which recommended them on former occasions might recommend them now. mr. w. smith was convinced that the amendment was wholly incompetent to the end which it professed to have in view. you may force a man to renounce his title, but what does that signify, when you cannot hinder his neighbors from calling both him, his wife, and family by the title? he replied to the argument of mr. s. smith, as to the eastern members giving up the point for the sake of conciliation with the southern members. he did not understand that his own constituents had any such panic about them, or that they would thank the eastern members very ardently for such a concession. they were not afraid of aristocracy. you cannot abolish the practice; and even supposing a nobleman had made his renunciation, perhaps the very person who administered the oath, may, the next moment, say, "my lord, i wish you a good morning!" and you cannot punish the individual who says so. as to not allowing of titles to wives and daughters, this renunciation will not prevent their being given. but in some parts of the country we have titles already. mr. s. had often heard an old lady called "the duchess." he could see no good consequence from the motion. there was indeed one obvious effect. the ignorant part of the american citizens--who, he hoped, were but few--would imagine that those who voted for the amendment were against the introduction of nobility into america, and that those against the amendment were for that introduction. this frivolous kind of legislation had disgraced the proceedings of another nation. they had begun to change the names of their towns and harbors, such as conde, dunkirk, toulon, havre de grace, and lyons. one of these they had named _havre de marat_, and so on. but now they were coming back to their sober judgment, and were repealing these edicts. lyons was restored to its old name. the pillar erected to announce its rebellion and annihilation had been taken down. the convention had formerly passed a law for demolishing houses inhabited by aristocrats, but now they began to think it was better to let the houses stand. would any body say that french liberty was better secured by naming a harbor _havre de marat_? had this done any good to the cause? but if people who were so much afraid of the introduction of nobility would look around them, they might already find in this country alarming marks of attachment to royalty. when mr. smith was lately at new haven, in connecticut, he had observed on the top of the state house the figure of a _crown_, which had stood there undisturbed since long before the beginning of the revolution. he went into the state house, and found the people as good republicans as could be, notwithstanding this crown. again, at middletown, in the same state, he went into a church, and on the top of the organ there was another _crown_, which might also be interpreted as a proof of monarchical principles. reverting to the subject of changing names, mr. s. said, that the people in the state of new york had for a long time enjoyed as much liberty as the other states. at last, however, it was recollected that one of the streets of the city of new york was called king's street; but this was changed to _liberty_ street, which was, to be sure, a very momentous alteration. if congress descend to legislate in such littlenesses, they may forbid the title of worshipful. they may abolish the order of freemasons, which he thought that they had just as much right to do as to make the foreign nobility renounce their titles before they should be accepted as american citizens. the congress may, among other objects of legislation, forbid any member to come into that house with an aristocratical cloak--one with gold lace, for example. he asked more than once this question: what peculiar privileges has a foreign nobleman, coming into this country, which he possessed more than all other citizens? he considered the whole amendment as totally trifling. he was content that the yeas and nays should be taken. his sentiments were known already. his name should stand among the noes. mr. giles said, that there had been an echo from one end to the other of the house that his amendment was trifling. was it consistent for the gentleman, who had been up for half an hour, to spend so much time upon a question, and then conclude by telling the house that it was nothing; that he had been talking for so long a time upon a subject that did not merit their attention? what kind of reasoning was this, or how did the gentleman propose to reconcile it? was it consistent with the warmth which had been discovered, to say that all this discussion, all this length of time, had been consumed upon nothing? but this kind of language had something more serious in it, for this prohibition of nobility formed one of the pillars of the constitution; so that to call a principle recognized and affirmed by the constitution a trifle, or nothing, and so on, was a very unguarded proceeding. another notable argument against agreeing to his amendment had been, that the people already detested nobility so thoroughly that it was not worth while to pass this amendment, as their hatred of it would put an end to it without a law. it was enough that the two principal reasons against his amendment, were, first, that it was authorized by the constitution, and secondly, that it would be agreeable to the people. it is strange, that the will of the people, who send us here, is to have no influence in this house, but is to be turned into an argument against passing a law! mr. g. would adhere to his amendment, because, as the law now stands, there is nothing to hinder a foreigner with a title to become an american citizen, and obtain a seat in this house, and hold both his office and his title. mr. g. next answered a part of the argument of mr. w. smith, that making people renounce their titles would only rivet their attachment to them, and make them, perhaps, think of these things, when otherwise they would have been forgotten. mr. g. said, it was quite a new kind of argument, that to renounce a thing, was the way to give it existence. if this rule were to hold, he believed that some members of the house would renounce things which they very much wanted. for example, he himself should possibly renounce a hundred thousand dollars. as to the call for yeas and nays, he had some time ago informed the house that he gave up this point. the thing could not affect him, either one way or another, because his sentiments were already known. mr. tracy regretted that so much time should be lost on trifling subjects. we had seen the national convention of france diminish their dignity, by spending three or four days on the business of giving a name to the late duke of orleans, and hardly had they finished, by giving him the _name_ of egalité, before in _substance_ he became so bad that they cut his head off. what good did his renunciation of title do, excepting that it afforded him a short opportunity of deceiving his fellow-citizens? mr. t. said he was fully convinced, and had been so from the beginning of the debate on the naturalization bill, that a length of time was the only valuable probation of an alien, and the only successful mode of discerning his principles, and the justice and propriety of his claim to be naturalized. he thought the sentiments of the gentleman from virginia (mr. _giles_) were highly commendable, when he said we ought to avoid extremes in politics, and adopt a sober medium of political reasoning, suited to the steady and rational temper of americans, equally removed, on the one hand, from tyranny, and on the other from anarchy. and he would ask, whether a solemn abjuration of all foreign allegiance, with proofs of a good moral character, and attachment to the principles of our government, would not secure us, as to the principles of the heart, as thoroughly, without the farce of renouncing his title, as with it? he considered titles, in this country, as very empty, unmeaning things; and they would go into disuse of themselves, having no solid support, either in the habits or constitution of this country. but, by the constitution of the united states, any citizen might receive and enjoy a title from a foreign prince or sovereignty, and congress could not prevent it. the words of the constitution are: "no title of nobility shall be granted by the united states; and no person holding any office of profit or trust, under them, shall, without the consent of congress, accept any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state." mr. t. supposed it was clear that congress had no power respecting this matter, but what was expressly delegated by the constitution, and that had given them a check only on officers of their own appointment, leaving every other citizen, not an officer of government, at liberty to retain a foreign title if he pleased. and an alien might, even if this amendment should pass, renounce his title, become naturalized, and in an hour accept of the same title, or another, from any foreign prince, and congress can make no laws to prevent it. if it be a fault that our citizens can receive and enjoy titles, it is a constitutional one; congress are not blamable for it, but they would be blamable were they to arrogate powers not given them, upon this or any other subject. mr. t. repeated, that there could be no danger in this country from titles; they were universally considered as trifles, and it would be dignifying them too much to legislate about them. he asked the gentleman who brought forward this motion, whether it was not, in a measure, a departure from his former declaration, of sober, rational temper, in politics, to insist so much upon its importance as he did? he was sorry the yeas and nays were insisted upon with so much spirit; it looked like party, in a very unimportant matter: he did not mean to accuse any man, or men, and mentioned it with diffidence, but it really struck his mind in this way. much had been said about adhering to the constitution strictly, on former occasions; but, from many things said now, it seemed as though there was no safety for the people, unless the house of representatives absorbed the whole governmental power. mr. t. said, if that house should become political cannibals, and attempt to devour both the other branches of the legislature, he would oppose it, whether it was popular or not, for he considered the constitutional checks of the branches of this government, upon one another, as containing the most complete security for liberty that any people could enjoy. if his construction was a just one, mr. t. thought the amendment could do no good; it formed a test which might make hypocrites, but not proselytes: it stripped an alien for a moment of a trifle, which in the next he might resume and wear for ever. mr. sedgwick.--has it not been said that there was a party in the united states, not only for aristocracy, but even for monarchy? is not the present a most favorable opportunity for holding up these people to popular resentment? he was convinced that the gentleman who moved this amendment had no design of doing any such thing, but that did not lessen the reality. he said that mr. giles had brought gentlemen into a dilemma, which he did not, or would not see. they had at first opposed the motion, as trifling, and this they had a right to do. the member (mr. giles) then moved his call for the yeas and nays; and if gentlemen who had already spoken against the amendment, were now to draw back, and vote for it, they would betray a disgraceful poverty of spirit. their constituents would say that their votes had been given _in terrorem_ of the yeas and nays. the motives for pushing this call could be nothing else but to stigmatize members of that house, as wanting to introduce a nobility, whereas they opposed the amendment on no such account, but merely because it was not worth their taking up. as to himself, he did not care. he could not wish to stand better with his constituents than he actually did. he was well known to them. but, in other quarters of the continent, it might be said that the eastern states were represented by aristocrats. if this be a desirable object, said mr. s., in god's name, let gentlemen persist in calling for the yeas and nays. it will be said, "there go the eastern aristocrats! they want to import nobility here, when it can no longer exist in europe!" mr. s. said, that, at first, he gave but little opposition to the amendment, thinking it frivolous. he repeatedly declared, upon his honor, that he firmly believed it to be so, and that he had no other reason for opposing it. if he had been, upon this occasion, warmer than usual, he was sorry for it; but the mischievous and unconciliating consequences of this call for the yeas and nays, had hurt him exceedingly. mr. madison denied the assertion of mr. sedgwick, that the amendment was trifling; and the member himself seemed to betray, by his behavior, a consciousness that he had not promoted conciliation. an abolition of titles was essential to a republican revolution, and therefore such an abolition had been highly proper in france. the sons of the cincinnati could not have inherited their honors, and yet the minds of the americans were universally disgusted with the institution, and in particular, in south carolina; yet a member from that state (mr. w. smith) has told the house that his constituents were under no fears of aristocracy, and that they could hear titles without emotion. even the chief magistrate of south carolina had told the cincinnati that these distinctions ought to be laid aside. mr. hillhouse thought it quite frivolous to spend time upon the motion. that was all his objection. it had been said that, allowing the amendment to be trifling, yet it was no harm to make an idle law, and that therefore it should be agreed to for the sake of conciliation. supposing a man to make a will, bequeathing a hundred thousand guineas, when he was not worth a shilling, there would be one serious effect at least, for it would make the testator ridiculous. to legislate for the sake of expressing a sentiment, was very silly, and what he never should agree to. if mr. giles would make an amendment incapacitating all foreigners whatever from holding, upon any account, a civil office in america, mr. h. would agree with him, because he did not want to see any of them in such offices, and conceived that americans could legislate for themselves much better without any such assistance. mr. lyman said, that whenever a member of that house called for the yeas and nays, it was a rule with him to rise and second the motion, because the people had, upon all occasions, a right to know their votes; and even if only one member desires the yeas and nays to be taken, mr. l. conceived that it ought to be done, as the thing was in itself so highly proper. since he had the honor of a seat in that house, therefore, he had always seconded every call for yeas and nays, that the public might understand, as fully as possible, what they were about, and how their votes went. he said that it was extremely improper to ascribe wrong motives, when gentlemen supported a call for yeas and nays. it was sacrificing the dignity of the house to cast out such insinuations. when the call had once been made and agreed to, it would be very mean to retract it, to gratify any member. the public had always, and without any exception, a right to know what their representatives were doing, and how they were voting, and he, for one, should adhere to the call. mr. w. smith said, that he had already put a question which nobody had answered, and on that account he should now rise and put it again. what are the emigrant nobility to renounce? when they come into this country, they possess not one privilege which is not possessed by every body else. he had expected that the gentleman from virginia, (mr. giles,) when last up, would have explained this matter, but he had not done it. the great bugbear was, lest a _ci-devant_ lord may get a seat here, and that somebody may call him my lord. but, even after you have got his renunciation of nobility, if other people choose to give him his titles, you can neither hinder nor punish them; so that the amendment is, to all practical intents and purposes, absolutely useless and nugatory. some members of this house belong to the order of cincinnati. if they come here with badges at their button-holes, can you forbid them? he wished that gentlemen would show what was to be renounced. there was nothing at all to renounce. the whole amendment is totally futile. mr. dexter then rose, but the house had become so impatient for the question, that he was heard with difficulty. he only wanted to ask whether the call for yeas and nays was withdrawn or not? mr. mcdowell said that he had already informed the house that he should insist on the call. mr. ames then asked, whether it was not competent to put the previous question, viz: shall this call be now taken? the speaker, in reply, said, that according to his judgment, the previous question could have been regularly taken upon any topic whatever, which produced a debate; but the house, by a recent decision, had determined that the previous question could not be regularly taken upon an amendment. he was then asked, whether the call of yesterday was valid to-day, or if it was necessary for the members to rise over again? mr. sedgwick was clearly of this opinion; in which the speaker, after some consideration, concurred, as some gentlemen had deserted the call, and he, in reality, did not know whether a fifth part of the members would support a call or not. it was then suggested, that there could not be a second call, if the first was disappointed; and some gentleman said, that he hoped no member would insist on a thing so extremely distressing to the feelings of many members. several gentlemen had now attempted to speak at the same time, and the mischievous and unconciliating effects of the call were enumerated with much emphasis. mr. new at last came forward, and declared that he moved for a call. mr. mcdowell said the same. mr. sedgwick then rose again. he appealed to the house, that, since he had a seat in congress, he had never troubled them with a call more than a very few times; and he affirmed, upon his honor, that he never had moved for the yeas and nays at all, unless he was uncertain how the votes of the house would go. but the gentlemen who now moved for the call had not this excuse. they knew very well that they would carry their point, and that by a large majority; so that the insisting for the yeas and nays could arise only from a design that gentlemen who voted against the amendment should be held out to the public as wanting to introduce a nobility. he owed little to mr. giles for having withdrawn his motion, when others were so ready to renew it. mr. new, on hearing these remarks, declared that he should withdraw his motion, since so much had been said about it. mr. blount then rose, and said that it was needless to waste time, for the yeas and nays must and should be taken. twenty-three members seconded his motion, and the speaker declared that the point was now determined. mr. dexter next rose, and observed that he had withdrawn his amendment, under a hope of conciliation, and that the yeas and nays would not be taken. but since this request had been refused, he should move it again, and have the yeas and nays upon that likewise, and before the other. he went over the beaten ground of the bad consequences of holding members up to popular resentment. mr. venable said, that if the gentleman were so disposed, he should willingly try the question at once on this motion, without farther investigation about it. on calling over the names, there were, on the amendment of mr. dexter--yeas , nays . the amendment of mr. giles was then taken up, and determined in the affirmative--yeas , nays . _ordered_, that the said bill, with the amendments agreed to, be recommitted to mr. madison, mr. dexter, and mr. carnes. monday, january , thomas sprigg, from maryland, appeared, and took his seat in the house. monday, january . the house resolved itself into a committee of the whole house, on the bill from the senate, entitled "an act to authorize the settlement of the claim of samuel prioleau;" and, after some time spent therein, the committee rose and reported progress. _defence of the frontiers._ a message was received from the president of the united states, laying before congress, for their consideration, the copy of a letter from the secretary of war,[ ] accompanied by an extract from a memorandum of james seagrove, agent of indian affairs. the message and papers were read: mr. murray then moved that the message should be referred to the same committee of the whole house, to which had been referred the memorial from the inhabitants of the south-western territory. mr. nicholas objected strongly to this motion, as showing too much deference to the heads of the departments. the paper in question ought not to have been sent to the house at all. mr. murray defended his motion. he inquired how the gentleman proposed to get information? was he to manufacture it himself, or in what way could he better obtain it than from the heads of the departments? he had not, for his own part, that species of jealousy of them which the gentleman last up had. mr. nicholas repeated his arguments with some warmth. he said that the letter from the late secretary at war was not official, but officious. it had a particular aspect which should forbid its getting any such mark of attention. it was neither more nor less than a commentary on some of the proceedings of the last session of congress. if this was received, we might expect the table to be heaped with such things. mr. sedgwick could really see no reason to reject the motion. the president had undoubtedly a right to send the communication. the subject was confessedly of the utmost importance. the member asked, if the house were to close their understandings, and refuse all information from that quarter? he repeated that he could see no ground of any sort for refusing consent to the motion. mr. giles was equally dissatisfied with the matter of this letter, and with the manner in which it had been introduced into the house. they were both equally exceptionable. the letter had come without any call. it was an executive comment on a legislative proceeding. it was a defence of a measure adopted by the senate, and it condemned by implication another of that house. to mr. g. it was a very extraordinary paper. the president was not to be supposed, however, answerable for the propriety of its contents. he should be very unwilling to take any notice of this paper at all. it had been justly remarked that it was a comment on transactions of the last session. a section of a bill passed in the senate last session, and rejected by the house of representatives, was inserted in it, and recommended. this paper might operate very materially on the deliberations of the house. this was a very bad precedent. the executive had nothing to do with any question depending before the legislature, and consequently had no occasion to send such a thing. mr. holten imagined that the gentleman from maryland (mr. murray) had extended his motion too far. it ought to have comprehended only the taking into consideration the message of the president. mr. murray complained of the asperity of expression employed by a gentleman from virginia, (mr. nicholas.) not official but officious, and the intelligence artificial, were phrases to which he objected. the gentleman might have higher sources of information than he had. mr. m. was willing to take up with information wherever he could get it, and he could have it nowhere with more propriety than from the national servants. it was no good reason to reject information merely because we had not asked for it. mr. giles had given a piece of intelligence which mr. m. said was to him entirely new, viz.: that when the house wanted information, it was one of their rules not to refer for it to the heads of departments. the topic was great and important, and the house, before they rise, must examine in general into the situation of the south-western frontier, and our terms with the indians. mr. m. said, that the delegate from the south-western territory (mr. white) would certainly be glad to obtain the information conveyed in this paper. if any gentleman would point out any other way by which the house could, without absurdity, get from the president the information contained in this letter, mr. m. should be willing to adopt it. mr. boudinot was entirely satisfied both as to the propriety of the matter contained in the letter of the secretary, and as to the manner in which it had been introduced into that house. that the president had a right to consult the heads of departments, there could be no kind of doubt. mr. boudinot then read the following passage from the constitution: "the president shall be commander-in-chief of the army and navy of the united states, and of the militia of the several states. he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices." mr. b. defended the message in all its circumstances, and in the most pointed terms. it was perfectly proper, and peculiarly so at this time. by the constitution, and by the rules and practice of the house, the president had a right to offer his advice regarding legislative acts. mr. w. smith had seen much needless jealousy in the house towards heads of departments; and the present he thought a refinement on that side. there had been two objections to the communication from the secretary of war, the one as to the matter, and the other as to the manner in which it was introduced to the house; as to the latter, it was said to have been obtruded unasked. in this last objection mr. s. saw nothing. he read a precedent from the journals, which he insisted to be exactly similar, and where mr. nicholas himself had been one of a committee appointed to examine and report. as to the matter, we might as reasonably object to the speeches of the president, reminding the house of business which had been before them, or recommending subjects to their notice. he considered the objections of both sorts as entirely unfounded. mr. madison recommended the alteration suggested by mr. holten, for restricting the motion of commitment to the message of the president, and not to take any notice of the letter from the secretary, which he considered as, in itself, extremely improper. it could not be meant as information, and the house had no occasion to take advice from the secretary. the letter itself looked more like a forced thing, than any which he recollected to have seen since the establishment of the constitution. the subject, however, was delicate. the president had an undoubted right to give advice or information in any way which he thought best. it was totally ill-judged in the secretary to have conveyed his opinion in the very words of a clause in a bill that had passed through the senate last session, and been rejected in that house. the communication translated into plain language amounted to this: "the senate last session had more wisdom than this house, and it is proper for this house to reconsider its proceedings, and improve by the superior wisdom of the senate." due respect should, however, be paid to the message of the president. it ought to be taken into consideration, and mr. m. was not willing to cast obstructions in its way, or to make needless objections. mr. dayton said, that he was for referring the report of the secretary at war, with the president's message, to the committee of the whole, and that consequently he was against striking out the words which expressed that intention. if, by omitting to take any notice of the report of the secretary, it was meant to reject the information on account of the source from which it came, it argued such a degree of jealousy and distrust as appeared both unreasonable and unconstitutional. if, on the contrary, the object was not so much to reject it, as, by the manner of referring the message, to convey any reproof or disrespect towards the late secretary of war, mr. d. should be still more decidedly averse to the modification proposed. he lamented it as an unhappy circumstance for this country, that the gentleman who was lately the head of the war department had thought proper to resign. that gentleman had executed the complicated and important duties of his office with zeal, fidelity, and ability, and ought to be protected from any proposition or remark which glanced unfavorably at him, or might wound his feelings at the moment of his leaving us. mr. d. then adduced the report of the secretary of war in , to the president, on the subject of the militia system, as a striking precedent. the secretary there informed the president, that he had submitted to him a plan for the arrangement of the militia. the president sent a message with the plan to the house of representatives. what were the steps then taken in that parallel case? was the message then alone referred as it is now proposed by some gentlemen? the journals, on the contrary, prove, that the message and plan were referred to the committee of the whole. it was possible, mr. d. added, that the present congress might deem themselves wiser than their predecessors. it was possible that many might think it safest to shut their ears against all kinds of information from the heads of departments, or even from the president himself. there might be some who would be willing to free the house of representatives from certain obligations, or shackles under which the constitution placed them, by tearing out a leaf from that instrument, but he ventured to say that it was too soon yet to attempt it. mr. smilie complained of the style of the memorial from the secretary of war, and, as a specimen, he read the following passage: "it is a melancholy reflection that our modes of population have been more destructive to the indian natives than the conduct of the conquerors of mexico and peru. the evidence of this is the utter extirpation of nearly all the indians in the most populous parts of the union. a future historian may mark the causes of this destruction of the human race in sable colors. although the present government of the united states cannot with propriety be involved in the opprobrium, yet it seems necessary however, in order to render their attention upon this subject strongly characteristic of their justice, that some powerful attempts should be made to tranquillize the frontiers, particularly those south of the ohio." in reading the above extract, mr. m. went no farther than to the words _sable colors_. mr. s. smith desired that he should read on, that the house might hear that no insinuation was intended, as if the present government of the united states had countenanced such ravages. mr. smilie said, that he knew what came after, but who would compare the first settlers of north america to the spaniards, who destroyed in their mines thousands and millions of the indians, and whose memory had been consigned to the execration of centuries? mr. ames rose. just when he had begun speaking, there came in a message from the president by his secretary. on this, mr. a. observed, that, perhaps, while gentlemen were now speaking there might have arisen a new subject of dispute. perhaps by the new doctrine, we should reject all communications from that quarter. the message having been delivered, mr. a. went on to remark, that turning loose the american militia to guard the south-western frontier, was a system of slaughter, of desolation. it was to make a potter's field a hundred thousand miles in extent! it was a system to waste the blood of the white man, and to extirpate the indians. the militia were not the people to prevent those kind of injuries against the indians which were the cause of hostilities. but gentlemen who were now so delicate as to the style of memorials, would do well, if they extended that delicacy to other memorials which had been presented to that house, and referred by the consent of those very members to select committees. papers had been offered to that house, wherein its conduct had been criminated and reprobated in the most unqualified language of detestation. yet gentlemen, on some of these occasions, showed no resentment. mr. a. ridiculed the idea of the present motion as introducing a new and dangerous precedent. the opposition to it came exactly under that description, for it was a direct attack upon the principles of the constitution. mr. fitzsimons approved of the motion. it had been asked if the president was responsible for the contents of this report from the secretary of war? mr. f. did not think so; but if he had not communicated it, the member would have thought him responsible for the omission. the president had a right to ask advice from the heads of the departments. mr. f. never knew a message from the president which required a reference, that had been refused it. as a matter of course, as a matter of right, it ought to be referred. mr. murray rose and read that passage in the report of the secretary, which mr. s. smith had desired mr. smilie to read, and which he had not read. [they are inserted both together at full length as above.] mr. nicholas moved an amendment, and which was seconded, for striking out the latter part of the resolution proposed by mr. murray. this made it merely a reference of the message from the president to the committee of the whole, and omitted all notice whatever of the report from the secretary of war. mr. sedgwick really thought this a squeamishness for which he saw no manner of foundation. mr. giles arose. he said that a gentleman from massachusetts had asserted that some members considered the whole constitution as entirely in this house. this imputation was a thing of so serious a nature, that mr. g. wished the gentleman to point out the person to whom he alluded. if it respected mr. g. himself, the assertion was unfounded. it was not true. he had the highest respect for every branch of the constitution. this was a charge frequently made by one side of the house. gentlemen had called the contents of this paper information. he saw in it nothing but what the house knew without the assistance of the secretary. he considered the report as an effort upon the opinion of this house, as an attack upon its independence, and that in a very indelicate way. he thought the report in all respects unworthy of the notice of the house. he hoped that this paper would not be committed, but that the message of the president would be so. [the passage in the report repeatedly referred to as having been borrowed from a bill passed in the senate, last session, is in these words: "that all persons who shall be assembled, or embodied in arms, on any lands belonging to indians, out of the ordinary jurisdiction of any state, or of the territory south of the ohio, for the purpose of warring against the indians, or committing depredations upon any indian town, or persons, or property, shall thereby become liable and subject to the rules and articles of war, which are or shall be established for the government of the troops of the united states." this was a section of a bill which the senate passed the last session, entitled "an act for the more effectual protection of the south-western frontiers," but it was disagreed to by the house.] mr. kittera considered this as entirely a dispute about words, or plainly about nothing at all. gentlemen from virginia were more jealous of the executive than even the constitution itself. mr. k. was satisfied that the president had a right to interfere in the legislative proceedings with his opinion and advice. there was neither principle nor precedent for the amendment of mr. nicholas. the dispute was merely about words, because if the message of the president was referred to a committee of the whole, the report in question would, in any case, be referred along with it. mr. ames rose again to make some remarks on the danger of extending too far the privileges of the house of representatives over the other house. the moment that this house is turned into a convention, there is an end of liberty. as to impropriety and indelicacy of style, he could wish that the cognizance of members might extend to memorials addressed to the house, that we may not have addresses disrespectful to it. he entirely vindicated the conduct of the president as to this matter, and saw a peculiar propriety in his having made the communication at present on the table. the question was loudly called for; but mr. nicholas rose in reply to mr. ames. would any man call this a communication from the executive? mr. ames spoke a few words in a low tone of voice. mr. n. proceeded, "the gentleman prevaricates." "i prevaricate, sir!" rejoined mr. a. mr. n said, that at best he went off from the point. as to the precedent produced by mr. w. smith, it was quite inapplicable. it bore no resemblance or connection to the one before the house. the other adduced by mr. dayton was, he admitted, in point. but that gentleman would admit that it occurred in the infancy of the constitution, which was an excuse for it. he hoped that the amendment would go through. mr. tracy quoted something which mr. nicholas had said. that gentleman immediately answered, that he had been misquoted. i know, said mr. tracy, as well as that gentleman, what he said. mr. nicholas got up a second time, and repeated what he affirmed were the words which he had really spoken. he did not say so before, said mr. tracy, but i am content that he should say so now. i only beg that he may not interrupt me. as to the motion for striking out one-half of the resolution, mr. tracy looked upon it as out of all propriety. the president had sent a letter of two lines, enclosing a report from the secretary of war. to refer the former without the latter, would be like referring to any person the superscription of a letter, but adding, at the same time, you must not look at the inside of it. mr. t. did not care from whom the report came. if it contained useful information, that was all he wanted to know. and, supposing it had been sent from a democratic society, that of itself would with mr. t. be no reason to refuse it a reference. he then observed how much more deference had been paid by that house to democratic societies than was now paid by some gentlemen to the president. much care had been taken that a vote of censure should not be passed on them. it looked as if gentlemen wanted to grasp all power within this body. the amendment was wrong in point both of principle and practice. to refer a mere superscription, (for the letter of the president was nothing more,) would look strange enough. the resolution, as amended, was in a state of hostility with common sense. mr. lyman was in favor of the amendment for striking out the words in the latter part of the motion. he thought it improper to refer to a committee of the whole house the report of the late secretary of war, because it was of an amphibious nature. it was not a mere official statement of supposed facts, but the reasoning on these facts. he was sensible that precedents could be found on the journals, which sanctioned a commitment of similar reports; but, for his part, he had ever thought the practice improper, and he must meet the question as it appeared to him. he said, that the constitution authorized the president of the united states, nay, it made it a duty incumbent on him, to give information, from time to time, of the state of the union. he was also equally required to suggest, for the consideration of the house, whatever he thought expedient; but there was a most material difference between communicating information, and argument or inferences deduced from it. the official information would always, without doubt, be reports from the different departments, and, therefore, would have the credit and weight which was due to it; but whenever plans or arguments were communicated, they should have the responsibility attached to the signature of the president. what was the case in the present instance? had the executive avowed the plan of the secretary of war, or his reasoning? he was persuaded, from the communication itself, that the president did not at all espouse the report as his own wishes or opinion; for there was nothing in the message implying that the report had been officially required, or that any one sentiment was from the high authority of the executive. as to the secretary of war, mr. l. had a respect for him, and believed that he had discharged the duties of his office with ability and fidelity, but it implied no censure to decline hearing his arguments. all that the house wanted was facts and information. they were fully competent to the suitable deductions. as to the observation of his colleague, that the house were abridging the powers of the executive, it was so far from being the case, they were only reclaiming what had been remitted and disused; and he had no fears that they would abuse it. mr. hillhouse thought that gentlemen were spending time in a very trifling way. it is the duty of the house to hear information from every quarter. he was against the amendment. mr. j. wadsworth said, that some gentlemen had been offended at the comparison in the report between the north american settlers and the spaniards. mr. w. remarked, that if gentlemen would look into two historians, the one of virginia and the other of new england, they would see bad enough work. if the spaniards, or any other nation in history, had acted worse, he was much at a loss to comprehend what their proceedings could have been. as to pennsylvania, much had been said of the purchases from the indians of their lands; but where was the difference between shooting an indian and catching him in a trap? and, as to the conduct of the pennsylvanians, when they drove the indians back to pittsburg, that was sufficiently cruel. we have murdered them from the beginning, said mr. w. as to the question on the amendment, he knew perfectly well that the president had acted exactly conformable both to the constitution and the practice of the house. to refuse committing the report of the secretary along with the message, would be an affront, not to the secretary, but to the president. mr. madison looked upon the expression, as to the spaniards, as being extremely exceptionable. it had escaped, perhaps, inadvertently. the secretary would not have used it in a report to the house, nor would the president have employed it, as from himself, in any message to the house. mr. m. was for the amendment. it was natural enough that the secretary, when communicating his sentiments in a private manner, should make use of illustrations for enforcing his opinion that he would not have adopted in an official paper. mr. page was persuaded that the report from the secretary of war contained nothing new, or, if new, nothing which may not as well be used when in the hands of members, as when in those of a committee of the whole. if the amendment had been to throw the message under the table, more warmth could not have been shown, in charging the opposers of the motion for reference to a committee of the whole with indecency to the president, and with a design at usurpation of his power, &c. it is said, that a jealousy has been betrayed by some members of an encroachment on the privileges of this house. surely, a most unnecessary and unreasonable suspicion has also been betrayed by others, of a design in the gentlemen who supported the motion of mr. nicholas, to encroach on the powers of the executive. expressions have been used not consistent with decency and order. gentlemen have been charged with a factious spirit, favoring indecent remonstrances, and with slighting and treating contemptuously the message from the president. some members have, at another time, been charged with speaking, not to the house, but to their constituents, in order to gain their votes at an approaching election. mr. p. said, that his respect for the government, and for the president, was equal to that of any man in the house. he was far from wishing to reflect on the late secretary of war. mr. p. had never, by any vote, censured his conduct, and he entertained no wish for his resignation. but he was at liberty to think the report given to the president wrong, the communication of it to the house as unnecessary, and even if necessary, as sufficiently acted upon when printed and put into the hands of the members. he might have no doubt respecting the constitutionality of the message from the president, or of the report of the secretary to him. he might require no precedents from the journals to prove that the motion for referring that message was perfectly in order. but he might doubt whether the substance of the report was of such a nature as to require the consideration of the committee of the whole. he might also doubt whether the report was of sufficient importance to require the most mature consideration. there might be circumstances attending the manner of its introduction, as some members allege that there were, which render the report improper to be referred to a committee of the whole. it would be a precedent for referring every message, and that would be attended with unnecessary delay. it will be paying a superfluous compliment. if the information came from the poorest citizen, and was sufficiently important, he would refer it, but though it came from the president or senate, and contained nothing which, in his opinion, required a commitment, he should vote against it. mr. p. was for the amendment of mr. nicholas. mr. s. smith remarked, that the principal objection made by the gentleman who spoke last, (mr. page,) to the commitment of the report was, that it contains nothing new. the observation will apply with equal justness to a great part of what has been said on the subject before the house. he wished, therefore, that the question might be immediately taken. the amendment was negatived without a division, but by a very great majority. the motion, as it originally stood, was then put and carried. tuesday, january . _reduction of salaries._ the house resolved itself into a committee of the whole house on the motion of the twenty-third instant, "that a committee be appointed to bring in a bill or bills to amend the act entitled 'an act for establishing the salaries of the executive officers of government, with their assistants and clerks;' and an act 'for allowing compensation to the members of the senate and house of representatives of the united states, and to the officers of both houses;' and to reduce all such salaries as, in the opinion of the said committee, after having made due inquiry, ought to be reduced." mr. claiborne said: a worthy gentleman from maryland, the other day, suggested an amendment to the proposition now before you, which i understood to contemplate the increase of some salaries; and, if that gentleman can reconcile it to himself and his constituents, let him move and carry it, if he can. for my part, i am pleased with the proposition as it is, and yet it may have great imperfections. it is very common for fond parents to be blind to the imperfections of their own offspring; and, as this is a production of my own, it is probable that i may be under the same delusive prejudices, but i hope that cheerful acquiescence which i have always shown to the majority, has sufficiently evinced that i am no bigot to my own opinions. i said, the other day, that i was determined, if the proposition must die, it should be by assassination; but as, in this, a degree of guilt is implied, and might be attended with serious consequences to those concerned in it, i should be satisfied to give it a fair trial, and, if it must die, that it may be by legal and fair adjudication, or, in other words, after full and fair discussion of its merits. we now have fairly before us a proposition that contemplates a redress of these grievances, which, since the adoption of the present form of government, have been a subject of grievous complaint and heartburning amongst citizens of the united states. many of them, and, i believe, a very great majority, conceive that the exorbitant salaries established to the legislative, executive, judiciary, and their assistants, are not consistent with, or can possibly contribute to the existence or well-being of a republican government, which, in its nature, holds out the idea of equality and justice, but which, in the present mode of administration, cannot fail to have a direct opposite tendency, inasmuch as the very profuse salaries that all who have the good fortune to get places under the pay and influence of the present administration, if they make a prudent use of them, must ultimately enrich and place them in a situation so far above the vast bulk of the citizens, whose industrious fingers are not permitted a single dip into those very coffers which have been swelled by filching a little from that hard-gotten pittance already far inadequate to the necessary but very ordinary subsistence of their families, as at last to endanger the very existence or shadow of this glorious and dear-bought government, that has already raised the drooping and once-dejected heads of the poor american citizens, who now glory more in having thrown off that subordination that was assumed and exercised over them under the late detestable monarchical government, by their rulers, or public officers, than even in their lives and fortunes. men begin to know the inherent rights of human nature. they have dipped into and tasted a little of the sweets of political regeneration, and, amongst all classes of your citizens, you may discover a zeal that amounts to enthusiasm, that lives and burns and grows almost to a prodigy. instances are not wanting, sir, to evince that thousands of those who were not fond of this government at its adoption, are now, on all occasions, ready to step forth in its support, and the laws that are passed consistent therewith. but this does, by no means, argue that they will submit for ever to repeated abuses of the government, which may ultimately tend to its overthrow; and exorbitant salaries, with other profuse appropriations of the public money, at a time when the nation is groaning under an immense weight of foreign and domestic debt, which (calculating upon the blessings of peace, and of course, a very increasing revenue, not reasonably to be calculated on so long a time,) it is agreed on all hands will take a term not less than thirty-two years to extinguish. here i shall again be told, that the price of house-rent, and every other necessary of life, has increased, and may continue to increase, so as to drive all your officers out of your service. to this i beg leave to answer, that, if you continue such high salaries, or increase them, as in some instances it is asked, and because of the present enhanced price of the necessaries of life, i think the evil will increase in proportion to the immense sum of money that you throw into circulation, for a redundancy of that, or any thing else, will always diminish the value; and, if the present custom of disbursing the public money is persisted in, the whole wealth of the united states must shortly centre in and about philadelphia! but, sir, by the adoption of public economy, we may shortly become able to obviate this great evil, and make our disbursements more diffusive, by paying out money to those who have demands upon your justice, distributed over the united states, if any but those who reside around the seat of government have any demand upon your justice or goodness. i am apprised that the proposition is a very unpopular one here, and that many will perhaps knit their brows at me; but, sir, when i entered into public life, it was without any cringing views. i meant not to court smiles, or fear frowns, and i had no doubt but i should meet my share of both. when i gain the former by proper conduct, i have pleasure in it; when the latter by improper conduct, i am sorry for it. but it will be much to be lamented if ever we see the day when the people shall be suffered to complain from year to year of any grievance, and their representatives shall be ashamed, or afraid, to make those grievances known, or ask redress, lest they be laughed out of countenance, or lose favor at court. but so hardy am i, if you prefer that expression, that, while i have the honor of a seat in this house, none of those considerations shall ever deter me from stepping forth in their behalf; but, be the result of this proposition what it may, i now warn you against evils that _may_ come, as you have been heretofore warned of evils that _have_ come, for the obligations of power and submission are reciprocal. it is as much your duty to pass wholesome laws, as it is the duty of the people to obey them. and now, having done my duty, i shall take my seat, content to abide the result, but hope a committee will be appointed. mr. nicholas declared that he would be very willing to vote for the appointment of such a committee, if he could see any good purpose to be derived from it, or if the gentleman who laid the resolution on the table could give him any information that tended to prove its expediency. for his own part he had but a small family, and of that he had left one-half behind him in virginia, yet he found that his allowance as a member of the legislature was barely sufficient for supporting this half of his family, though he lived with as much economy as he ever had done in his life. he was certain that he should not take one shilling of public money home with him to virginia. he requested gentlemen to remember that it was not the present congress who had given six dollars per day to themselves, but that it had been fixed by their predecessors, and fixed at a time when living was fifty per cent. cheaper than it is now. mr. boudinot observed, that he should not have troubled the committee on this question, had it not been for several considerations particularly applicable to himself. he was as impartial on the present debate as any member on the floor. after the close of this session of congress, he never expected to receive a farthing of public money again, and therefore no interest of his own could sway his judgment improperly to object against the resolution on the table. he had been among the number of those members who originally were for fixing the compensation of members of congress at a less sum than six dollars; not because he thought it beyond the amount of their expenses, but, from an idea of the then deranged state of the finances, and that, if sacrifices were to be made, they should begin with this house. he appealed to his uniform conduct for six years past, to prove that he had always opposed an increase of salaries or other public expenses, when the interest of the union did not require it. he did not doubt that the gentleman who brought forward this resolution thought he was doing his duty in advocating it; and mr. b. thought it was equally the duty of the committee to be convinced that they were not wasting their time in unnecessarily proceeding in business, without having some foundation for rational inquiry. mr. b. did not doubt but there were uninformed individuals, who might object to six dollars per day; but he was confident that the well-informed among the citizens of the united states, and those who reflected on the subject, would think (at the present day at least) it was not more than would barely pay the reasonable expenses of gentlemen who attended to their duty here in a proper manner. almost every article of consumption was from twenty to thirty per cent. higher now than it was at the commencement of the government. the constitution of the united states, as the act of the people and the public voice, contemplated a compensation to the members of congress. did not this mean something more than the bare discharge of their expenses? yet congress had not gone beyond it. when congress sat at new york, mr. b. said that he was in a situation more favorable in point of expense than any gentleman on the floor, who did not reside in that city. he boarded with a near relation, and was in a manner in his own family; and, although he paid the usual price of boarding as at other places, yet there were a thousand nameless small articles which saved him many advances. he was within sixteen miles of his own family, from whence he received many things that prevented his laying out money. during three sessions, he kept an exact and faithful account of his expenditures, and, at the end of that time, the balance was but s. d.; but on which side of the question his memory did not allow him to say. at present, he was also under very peculiar advantages, yet he was confident that, at the end of the session, he should not have any balance in his favor from his compensation as a member. mr. b. appealed to every gentleman's own knowledge, and particularly to the gentleman who made the motion, if he thought that what he received would more than pay his expenses. gentlemen were often crying out against an aristocracy in this country; yet measures of this kind tended to establish one, by reducing the compensation of members, so that no citizen but the rich and affluent could attend as a representative in congress. this certainly was the most effectual way of bringing about a dangerous aristocracy in the united states. should not men of abilities, though in the middle walks of life, be encouraged to come forward and yield their services to their country, without being dependent on any person or set of men whatever? is it not sufficient that their time and talents are given to the public? must they pay their expenses too? mr. b. was aware that the resolution proposed related to the officers of government as well as members of congress, but he had confined his remarks to the last, as the part of the subject he was best acquainted with. he begged gentlemen to look around and point out the public officer who received more than a reasonable reward for his services. professional men, of the first abilities, were absolutely necessary to carry on the public business; and could any one, fit for his office, be shown who could not do full as well, if not much better, in the exercise of his profession in private life than he did in the public service, if pecuniary matters were his only object? in short, (mr. b. said,) this house was placed between scylla and charybdis. the public officers were complaining, and even resigning, for want of sufficient compensation for their services; on the other hand, an attempt was now made to reduce their salaries still lower, on the supposed clamors of the people. mr. b. did not believe they could be denominated those of the people; neither did he see any evidence of the fact. he did not consider the complaints of a few individuals as the public voice. ought not the gentlemen to come forward with some kind of calculations or estimates to have shown that certain salaries were too high, or more than the services performed were entitled to? this had not been done; but the committee were urged, at this important moment, to proceed to an inquiry, which every gentleman on the floor already knew as well as he could do by the most labored investigation. he therefore concluded that, to agree to the resolution, would be a waste of the short time that yet remained of the session, and an unwise measure. mr. b. would have contented himself with joining the committee in a silent vote on this subject, but he thought the observations made in support of the measure ought to receive some answer, if not to convince the committee, yet to satisfy their constituents that there could exist no necessity for a present inquiry of this nature. mr. w. smith said, that the resolution was, in its present shape, so extremely vague, that one did not know how to give it a definition or a vote. different objects were lumped together. if, by an inquiry, the gentleman meant to examine into the wages of members of this house, it was quite needless to appoint a committee, because every member can at this moment speak for himself. but mr. s. did not consider the present time as the most proper for beginning to reduce salaries, when, within the last twelve months, there had been three resignations, viz: the secretary of state, the secretary of war, and the secretary of the treasury, and all chiefly for one reason, the smallness of the salary. i have no doubt (said mr. s.) of there being complaints, and, if the salary was reduced to three dollars per day, there would be still complaints, as we see is the case with the members of the legislature of pennsylvania. he only wished that the committee would rise, and he should then vote in the house that they might not have leave to sit again. the mover of this resolution had mentioned the danger of meeting with reproaches from the people, who thought their salaries too high. mr. s. saw very little in this matter, because the people who railed at the salary of six dollars per day, were only anxious to get in themselves, and embraced this topic as an expedient of ousting those members whom they wanted to succeed. mr. goodhue wished to ask mr. claiborne one question, "whether he found himself growing rich?" mr. sedgwick saw no occasion for rising, because the committee were perfectly competent at this moment to determine the question. mr. rutherford was for reducing the salaries by one dollar per day, and one dollar every twenty-five miles that the members had to travel. this would be a reduction of one hundred dollars per day, which would be much better bestowed upon the innocent widow of the veteran, who had fallen in the service of his country. mr. page said, that he did not think the resolution, as it was worded, was a proper subject for discussion in that place; for the house, and not a committee, could properly resolve that committees should be appointed. however, as the resolution had been submitted by the house to the consideration of the committee of the whole, it must be examined; but, as to the object of it, that he thought was more properly before the committee, as proposed by the resolution; for, as i have remarked on other occasions, if, instead of discussing a question fully, and collecting the sense of all the members in a committee of the whole, it be referred to a committee of one member from each state, that committee might be unanimous in favor of a resolution, against which, eighteen members for virginia, and a proportionate number from other states, might vote; or, by the weight of that committee, the resolution might be carried, which could not have passed had it been fully and freely discussed in the house. here, then, my colleague's question should be examined, as i cannot say (as has been said by one of them) that i had no hand in fixing the salaries and pay of the officers of government and members of congress, having actually voted at new york for them as they now stand. i think i may, with propriety, give my opinion respecting it. and i am clearly of opinion, sir, that the question arises from a misapprehension of the subject to which it is applied; for there cannot be a greater mistake than to suppose that parsimony in a republic is necessary to its support. a certain degree of economy is so; but parsimony, applied to the salaries of public officers, and the representatives in particular, may be ruinous to the interests of a republic. should the salaries be so low that men of small fortunes cannot afford to serve their country, it must be deprived of their assistance, and we must accept of the services of the rich, who, to have their wills, though low, will serve even without pay; or, the state will be served by artful demagogues, by ready, designing men, who may, in pursuit of profit as well as popularity, cut out places for themselves and friends, producing at length confusion and anarchy, or, at least, such a bungling system of legislation as will cost more time and money to rectify their blunders than the most extravagant salaries could amount to. what true republican could wish to exclude from a seat in congress a physician, lawyer, merchant, farmer, or any other person possessed of such well-known abilities and virtues as to attract the attention and respect of a district which might wish to intrust its interests to him as a representative? or, rather, who ought not to desire that, as all offices are open to all, that the son of the poorest citizen might be enabled, if qualified to fill a seat here or elsewhere, to do it without sacrificing his private interest? is it reasonable to expect that men should sacrifice domestic ease and the interests of their families to serve their country? it is not just to require it. human nature, except on great and trying occasions, cannot obey such a requisition. my colleague says that he is not a man of fortune; but, has he not a profession by which he can make more than by his attendance on this house? if not, he has not a right to require such a sacrifice of any other person's time and talents. the constitution, far from requiring any thing like it, demands that compensation shall be made for all services; and who will desire less for services than a mere subsistence for a person whilst actually employed in such service? i am sure that less than the present pay of members of congress would not, in their present situation, be a subsistence. i recollect that, when the house of representatives were debating, in the first session, at new york, whether their daily pay should be four, five, or six dollars, i affirmed that the expenses of the members where i boarded required that it should be six, that the state of virginia having once allowed her delegates to congress eight dollars, and never less than six, when she bore the whole expense, could not object to her representatives receiving that sum, when divided, as it was, amongst the states, and spread out over the various duties and taxes of the united states. i asked those, as i might ask my colleague now, who of our constituents could calculate what he would save by any proposed reduction of our pay? i have long suspected, sir, that republics have lost more by parsimony than they were aware of, and that a misapprehension of some practices in ancient republics has been artfully kept up, so as to favor aristocracy and monarchy. the british parliament has now no pay; but have they been as independent as their countrymen wished them under the british government? in reply to the member who had objected to the pay of the speaker, and the difference between the pay of members of the two houses, mr. p. said, that whoever would consider the duty of the speaker; his long confinement to the chair; his painful attention to every word spoken in the house, and his responsibility for the correctness of the journals--an examination of which must take up much of his time--would surely not think his pay too great. as to the difference between the pay of a senator and representative, he had voted for it, from a belief that a senator having more services to perform than a representative, had a right to more pay. the senate not only have to originate bills as this house has, and to revise and amend bills sent from hence, and often to correct the careless errors they contain, but to make themselves acquainted with the law of nations, and to be prepared to judge of treaties; and also of offences brought before them by impeachments. when the senators may have gone through the labors of a long session, and the representatives are returning home, they may be called upon to consider certain nominations to offices, or certain treaties; and at another time to try certain impeachments. besides all this, the age of a senator must be such, by the constitution, that it is probable that his family is larger, and his pursuits in life more fixed and profitable than those of a representative, who may be elected when only twenty-five, and therefore his services must require higher compensation. as to the president and vice-president's salaries, i voted for a larger sum than was allowed to either, and thought that the disproportion between them was too great. with respect to the judges, i still think their salaries too small, and so should every one think who will consider the vast importance of their office; the labor of both mind and body which it requires; the laborious course of study through which a man must have gone to be qualified for it, and the lucrative employment such a one must have given up to undertake it. in short, i do not recollect a salary which i think too high. and i must repeat it, that i do not think that large salaries in a republic can injure it; but that small, inadequate salaries may overturn a republic. i am sorry that the question has been brought before us respecting our own pay this session, because the elections in virginia are not over; it would become us much better another session, if re-elected, to reduce it, than to do so when we may be left out. besides, if i vote for a reduction, i may be suspected of courting popularity; and, if against it, of despising the opinions of my constituents, if they have adopted those which some members tell us prevail amongst their constituents. i do not like to be in such a dilemma, nor to have my independence unnecessarily tried. i wish, as the question is before us, that it may be fully debated here, and even referred to the further consideration of a select committee; because i think the opinions even of a single member and his district should be treated with respect; and that when they have been fairly proved to be founded in error, there will be an end of complaints, and an acquiescence in the decision of this house. mr. gillespie proposed an amendment, the scope of which was, that a committee should be appointed to examine and report whether any and what alterations were necessary in the act fixing salaries to the officers under government. he suggested this amendment from no motive whatever but what was fair. there had been, and there still was, a degree of clamor upon the subject, and it was the duty of the house to pay attention to the voice of the public, whether right or wrong. if, upon investigation, it should appear that the salaries were not higher than they ought to be, then the report of the committee would be the best method for stopping the public clamor. mr. claiborne hoped that the committee would not rise, but decide the point. he trusted that no gentleman would again point at him, and say that the motion came out of his brain. there was not one officer under government whom he would point out and say, that such an officer had too high a salary. he had expectations that this discussion, by bringing forward the observations of several gentlemen, would in some degree satisfy the people, and that there would be no more pointing out with a finger and saying, "_there goes a six-dollars-a-day man_." another member observed, that it was the duty of the house to attend to the voice of their constituents, and for this reason, he should vote for a committee. he would mention what he had always considered as a most odious distinction, the additional dollar per day, which is to be paid to the senate from and after the th of march next. [the reader will observe, that by the act, members of the senate were to have seven dollars per day, but the additional dollar was not to commence till the lapse of six years,[ ] when all the senators of the first congress had gone out.] there was another thing for which he never could see any reason, and that was the giving of the twelve dollars per day to the speaker. mr. giles was perfectly convinced that the allowance to the members is small enough already. the saving of a dollar per day suggested by mr. rutherford, would be but little, and it was beginning at the worst of resources. the pay ought to be such as would bring persons of middling circumstances into the house; persons neither too high in life nor too low. if the pay was greatly reduced, none but very rich people could afford to give their attendance, and if too high, a seat in the house might be an object to persons of an opposite description. formerly the state of virginia allowed eight dollars per day to the members of its legislature. this sum had since been reduced to six dollars. mr. g. mentioned this to show that in the practice of individual states, there might be found a precedent for the allowance to members of congress. he was for voting directly. mr. g. said, that there was a country from which america had copied a great deal, and very often too much; a country which still had a very pernicious influence in the united states. the members of the british house of commons received no wages, while the officers of state had immense salaries. it was however understood, that the british house of commons were very well paid for the trouble of their attendance. mr. g. did not wish to see scenes of that kind in this country. mr. hillhouse hoped that the house would have done with this thing immediately, as it had now answered all the purposes expected from it, and he trusted that all motions of that sort which had an eye to certain operations out of the house, would meet with the same fate. the motion was negatived by a very great majority. [before the adjournment, the speaker suggested to the house a considerable inconvenience, occasioned by gentlemen being introduced, and occupying such parts of the house without the bar as were particularly allotted for the use of the house, and of which several members complained. there was often so great a crowd that members could scarce walk round when they had papers to present to the chair. the passage was often obstructed when messages were to be delivered, and frequently there was no room left for the members when they wished to confer privately with each other. as he did not conceive himself authorized to give special directions without orders from the house, he would take the liberty to suggest to the members of the house, when introducing their friends, the propriety of placing them under the galleries to the left of the chair, and reserving the space to the right of the chair for the members of both branches of the legislature, the diplomatic gentlemen, judges, and other officers of government; which was generally acquiesced in.] thursday, january . aaron kitchell, returned to serve in this house, as a member for the state of new jersey, in the room of abraham clark, deceased, appeared, produced his credentials, and took his seat in the house; the oath to support the constitution of the united states being first administered to him by mr. speaker, according to law. _thomas person and others._[ ] the house then resolved itself into a committee of the whole, mr. cobb in the chair, to resume the consideration of the claims of thomas person and others, to certain lands lying on the frontier of the state of north carolina, and ceded by the commissioners of the united states to the indians. mr. gillespie took up the subject in the same stage in which it stood before he spoke the preceding day. he said, let us examine the conduct of other states. did not new york dispose of lands within her chartered limits, and from the sales become wealthy, as she has large sums in the funds? the state of virginia took advantage of the purchase of henderson and company, for that part now called kentucky, although they now exclaim that the purchase was unlawful; yet, unlawful as it was, it has extinguished the indian title to those lands. now, if the purchase of henderson and company had this effect on the north-east side of walker's line, which divides kentucky from the south-west territory, is it not just that it should have the same effect on the south-west side, when made by the same persons, on the self-same day? and surely the rights of north carolina must be at least equal to those of kentucky, in every thing except that of power. but is congress going to legislate by strength of arm? i hope not. it has been admitted, by some who have spoken on the subject, that the citizens of north carolina have a right of redress by law, and by others, against her own legislature. to the first of these i ask, against whom is the suit to commence? are our citizens, thus bereft of their property, to be compelled to litigate suits at law for property taken for public use, and for which they have a just claim against the united states; or have they not an equal right to compensation for that which the united states, by their agent, took from them, as other citizens are entitled to, for property piratically taken on the high seas, by the robbers of britain? and do we, in the last case, say to these unfortunate sufferers, commence suits against those who have injured you? no. government has taken the litigation in hand, at her own cost. let her do so with the citizens of north carolina. or, will the government of the united states support the claim of the injured against her own executive? will they do it against the state of north carolina? they cannot; and from what has been said in this matter, it is plain that, as the government of the united states has converted the property of the citizens of north carolina to the uses of her government, compensation ought to be made out of the public purse, as the contrary would, on her part, destroy that bond of union between her, as the sovereign power of the united states, and her citizens, and as not only bound to govern with justice, but also to protect them from all manner of injury, as well domestic as foreign. mr. g. apologized, that he was without authority in the house, but would pledge his reputation that what he should advance, if not verbatim, should be in substance with the author quoted: "it is admitted by many, that the sovereign authority possesses a power, under the laws of eminent domain, to alienate the property of the subject, for the benefit of the commonwealth, by impending public necessity against private injury." but, without doubt, they "that have lost or sacrificed their property to the public safety in such extremity, ought to have satisfaction made, as far as possible, by the commonwealth. any thing short of this would destroy the reciprocity between the sovereign and subject."--_puffendorf_, _b._ , _c._ , § . but can public necessity be urged in the present case to justify this kind of political robbery? i answer, no. if the indians are to be kept in peace by bribes, why not, in this, as in other similar cases, by presents and pecuniary rewards? is it not an indignity to the united states to purchase peace from an indian nation, at the expense of a part of her citizens, whose resources at best were scanty, and are, by this and other speculations, almost annihilated? surely it is. and, let me add, is it not an invariable axiom with all authors on government, "that all sacrifices of property made by individuals for the public benefit or accommodation, should or ought to be paid out of the public revenue, and that one should not bear more of the burden than another."--_burlamaqui_, _b._ , _c._ , § , . is it not, then, obvious to all, who will reflect on this subject, that compensation is due to these individuals, whose property has been wrested from them for government purposes? the same author observes, in the th section of the same chapter: "that as no subject can assume any part of the sovereign power without the consent of the whole, neither can any sovereign authority deprive the subject of his right and property, nor substitute another sovereign over him without his consent." the public is in nothing more essentially interested than in the protection of every individual's private rights, as modelled by the municipal law in this and similar cases. the legislature can, and frequently does interpose, and compel the individual to acquiesce. but how does it interpose and compel? not by stripping the individual of his property in an arbitrary manner. no. but by giving him full and ample indemnification for the injury sustained; for there must be an end of all social commerce between man and man, unless private possessions be secured from unjust invasions. thus, the protection of a state, in every precedent to be found in books that treat of the fundamental laws of civil society, or in the resolutions and acts of the british parliament, means restitution, indemnity, or compensation. _grotius_, when treating of the right of the sovereign authority to give up or take the property of the subject, calls it "restitution, satisfaction;" _burlamaqui_, "indemnity, and indemnifying the subject for the injury sustained;" and _vattel_, "recompense out of the public money." it is farther observed, that cases of this kind operate, like property thrown into the sea to save the ship, by making an estimate of the loss, and causing an equal average on the property saved, which each owner is bound to pay. so that, from the fullest conviction, i am of opinion the citizens of north carolina are entitled to the relief reported by the select committee, and that strict justice requires we should comply with it; for, as i have said, in nothing is the government of the united states more concerned, in a superlative degree, than in doing strict justice to her citizens, as of the last importance in preserving the affections of the people to the government. vacancies in our departments, civil, judicial, or military, may be supplied as well, but to restore the confidence of a people borne down with oppression, exceeds comprehension. it is like attempting to return from the grave--is without precedent, and is vain labor indeed. at different epochs it has shook the foundations of monarchies, and caused tyrants to tremble and atone for their crimes with their lives; and, as i said at an early stage of the debate, if usurpers, tyrants, and despots have been compelled to do justice by this undeniable law of nature, shall the government of the united states, founded on the pure principles of democracy, be less just? surely not. have we received a power to exercise in wantonly oppressing those who gave it? god forbid! therefore, let it ever be impressed on our minds, that justice exalteth a nation. the house, i hope, will pardon my detaining them, at a time when every moment is precious. but the duty i owe to my injured constituents forbids silence, and will, i hope, be a sufficient apology. i shall, therefore, submit to the judgment of the house, not doubting but justice will be done. mr. nicholas was satisfied that the purchasers of the lands had a claim either against the united states or the state of north carolina. much had been said about the indian right; but the indians never had been fit to occupy these lands. it could never have been the design of nature that these people should be termed the possessors of land which they were incapable to enjoy. he was, upon the whole, on the side of the claimants, though he enumerated some of the difficulties that would attend an attempt to please all parties. mr. w. smith had found much difficulty in forming his opinion upon this question. he had at first been somewhat disposed against the claimants, but at last, after full deliberation, he was convinced of the justice of giving them redress. he requested the particular attention and candor of the house. the united states were, in this case, made a judge in their own cause, and therefore it became more their duty to examine every part of the subject with the more accuracy. mr. s. then began a distinct detail of the circumstances in the present dispute. previous to the year , north carolina was a british colony, and the british crown considered itself as entitled to bestow grants of territory. in that year, north carolina became a sovereign state, and consequently she conceived herself as succeeding to the right of the british crown, and as having a right to bestow grants in the same way as the kings of great britain had done. this claim was asserted in her general declaration of rights, and it was incorporated into her constitution. when north carolina entered into the union, all the legislative rights of the state were preserved, and, by a necessary inference, her title to the lands comprehended in her original charter. in , the state opened an office to sell the absolute right of such lands as had not been disposed of. in , north carolina ceded the right of jurisdiction to the united states, but she reserved her own legislative rights, and consequently her right to sell the lands within her own territory; and in disposing of the lands in question, the state did not intend merely to sell the right of pre-emption from the indians, but the absolute title to the lands. mr. s. read a part of the constitution of north carolina, in order to explain what degree of legislation the state had conceded to the federal government, and what part she reserved to herself; and he was clearly of opinion, that the disposal of the lands had been reserved. in the state offered these lands for sale. in , the commissioners of the united states assigned a great part of them to the indians. in , the legislature of north carolina declared that they would support the purchasers. the grand question now is, did the state, by acceding to the confederation, give up her right of legislation? she gave up her right to make indian treaties, but reserved that of legislation, because, as above observed, it formed a part of her constitution, which was understood to continue unviolated. these lands were bought with certificates, which it was alleged, on the other side, would purchase nothing else. if the certificates would purchase nothing else, it was proper at least that they should have been restored to their first owners, who might have subscribed them to a part of the public debt of the united states. they were certainly entitled either to their land or their certificates. these certificates, which were paid into the treasury of north carolina, were those of the united states. if the owners had only a pre-emption right, mr. s. insisted that the certificates should be returned. mr. sedgwick said, that this was quite a new fact to him, and if it was as stated, there was no necessity for legislative interference at all. the state of north carolina had only to come forward and subscribe them to the treasury. mr. w. smith explained, that when delivered into the treasury of north carolina, they had been cancelled. after this they were again ordered to be made current by the subscriptions of the officers of the state, and in that shape they were offered to the commissioners of loans, who refused to accept them. the exact amount of the certificates could still be ascertained, as well as the names of the persons to whom they belonged. they had been cancelled, but not destroyed. mr. boudinot imagined that mr. smith had furnished a new and forcible argument against his own cause. this claim of north carolina to sell the lands was wrong, and this doctrine had been the cause of all the disputes in which the federal government has been engaged. the crown of britain had never pretended to any right of this kind, nor ever thought it had a title to any lands till they were first purchased from the indians. the question before the committee was, have the united states taken away any claim which the purchasers of these lands had? and the answer is, that the united states have not. the state of north carolina only had a right to sell the privilege of pre-emption. this was the only right which the purchasers obtained, and this right they still possess. as to the certificates, they were not those of the united states, but those of north carolina. they were not continental certificates, and for that reason continental officers would not accept them; but north carolina has since brought these certificates into her account against the general government. the commissioners, in , had done a very great service to north carolina, by settling a line of boundary, and putting an end to the indian war. he thought that the best way would be for the claimants to apply to the executive, and agree among themselves to extinguish, by an interference of that kind, the indian right. this would be much better than for the house to involve itself in the purchase of an immense tract of land, at an expense of seven or eight hundred thousand dollars, (or how much more, mr. b. could not tell,) when there was so much occasion for the money to pay the national debt. he again declared that he should think it the best way to obtain the good offices of the executive in extinguishing the indian right. the six nations possessed part of the territory of pennsylvania. this state also may apply to the general government for redress, if north carolina were to get payment for these lands. the state of new york may do so, for the same reasons as north carolina. this would be involving the government in an endless labyrinth. he was as unwilling as any gentleman in the house to interfere with the rights of the legislature of north carolina. but he did not wish to see the house going blindfold into the business. the united states have too much land already. mr. kittera.--the certificates must have been given in by north carolina to the united states. she denied the right of the commissioners, in , to make indian treaties, but now that right is given up. he agreed with mr. boudinot as to his observations on pennsylvania. georgia also, he said, had about sixty millions of acres within her chartered limits. the business would never have an end, if the general government was to interfere in all these cases. mr. scott.--has not this government a right to restrain every wild-goose excursion into the woods? if it has not, the union must fall prostrate at the feet of every wild speculator. pennsylvania, at a great expense, made preparations for an establishment at presqu'isle. the ground had been bought at a great expense from the united states. yet for the sake of general peace, the settlement had been stopped. mr. mcdowell denied that the two cases corresponded, for the lands at presqu'isle had not been given to the six nations. mr. boudinot differed from the last speaker. he did not think that any thing farther had been done against the interest of north carolina than against that of pennsylvania. mr. blount denied that the indians ever occupied the lands in question, or were fit to occupy them, in any proper sense of the word. to walk across a country, and to shoot in it, was different from an occupation. but, besides, the creeks and cherokees were not the only tribes who had hunted there. it had been said yesterday that these lands gave rise to speculation. mr. b. wished that it had done so, for in that case the certificates would all have been paid by this time. there was no difficulty in funding southern certificates, when once they got into the hands of northern speculators. mr. b. thought himself entitled to receive back from the united states the money which he had paid into the treasury of north carolina for these lands. mr. murray requested the favor of any gentleman to inform him, whether the lands in question were possessed and occupied, in the more civilized sense of the terms, by the white people? he believed they were not. had they been in peaceable possession, living on, and cultivating the lands, that circumstance would form a very interesting motive in his mind in favor of the indemnity that was asked. but, in fact, they never were possessed of any right but that which north carolina could give them--the pre-emption right; that right they now possessed as fully as they did at the time of the cession to the united states. [mr. carnes rose, and informed him, that many white people who had begun farms were driven off their lands, and reduced to great distress by the proceedings of the commissioners.] mr. m. said, an argument struck him of some weight--that if the claim be gratified, the claimants will be in a better situation now than they would have been if the cession had not been made; for north carolina could not have given them absolute possession but by force of arms. this she would not have a right to do, under this confederation, nor under the constitution, as no one state can make war. but the claimants can ask nothing more of the united states than they could have had accomplished for them by the state of north carolina. a new doctrine, resulting from the revolution, must be admitted as a ground of reasoning, when indian, unconquered territory, is before us. the provinces had power, as individual bodies--which states, as such, have not--the right of making war, and gaining possession of indian territory by conquest. so it was, that a province could, from its own separate resources, make war on indians, and pay individually the expense. but when the great contest for independence came on, all the states were, in fact, principal confederated bodies, long before they signed the paper of confederation. the doctrine, which suited such a body of states, was, that whatever might be gained by the joint efforts and expense of all, should be the property of all, jointly; and he thought that every principle of sound justice warranted him in applying the doctrine, so far as to say, that whatever might be the chartered limits of each province, while dependent, yet the moment of the joint contest was that in which the true limits of a state were, as far as property in land went, confined to that boundary which was really located, occupied, and peaceably holden within the limits. to say that the state had a right more positive than the pre-emptive one, to lands actually occupied and defended by hostile tribes of indians within the chartered limits, admits a principle, that, if put into action, tended necessarily to violate the great principle of the confederation, and of the present constitution, which divests the individual states of the right to make war; as the state to make good any sales she might make within the hostile territory, would be obliged to make war on the tribes to dispossess them. the lands in question were in this situation. they were occupied by indian tribes, and were never in possession of north carolina. the gentleman from that state seems to doubt the occupancy of the tribes. mr. m. believed we would violate principles of justice were we to borrow the principle of occupancy from books, and apply it to indian society. the indian tribes held certain tracts of land. as to the mode in which they thought it most rational to use the land, it was nothing against their right to say its exercise differed from our mode. he understood they made a hunting ground of the land in dispute. they had a right to use it as such, and their mode of use was no argument against their right. all that could be, or was proved to belong to north carolina, was the colonial right to qualified sovereignty, called the pre-emption right. this was all she could grant, and this was all that the claimants could take from her. they had that now; and as he could not see the propriety of making their situation better than if the cession had not been made, so he could not agree to the resolution for giving them indemnity. perhaps his ideas on the subject might be fashioned by local circumstances, belonging as he did to a state which had no share in those rich funds which the large frontier states possessed, he thought, very unjustly, in immense tracts of back lands. he felt it a duty to narrow all claims like the present as much as possible. connecticut, rhode island, jersey, delaware, maryland, were all in the same situation. they had no back lands, and were divested of the share they were justly entitled to in the back lands, which now bring immense funds of wealth into the land offices of those states which possess them. mr. heister wished to have that part of the law read which relates to the species of certificates referred to in the debate; this was accordingly done. mr. h. said that he had not enough of evidence before him to give a vote. he therefore wished that the committee might rise. mr. macon said, that, according to mr. boudinot, it was the doctrine of north carolina in , that the state possessed aright to the unappropriated lands. if that was their doctrine then, nothing had since happened which could make it cease to be so now. the crown of britain had transferred the absolute property of lands, without inquiring for permission from the indians. this evidence went strongly to prove that north carolina had the same title. the case of presqu'isle did not apply, for pennsylvania was raising troops to make that settlement, and no state can, by the constitution, raise troops of itself. he wished the committee not to rise till they had determined the question. mr. carnes had foreseen that the claim before the committee would be opposed upon various grounds: but he considered none of them as well founded. grants were first made by north carolina to individuals, of lands within her chartered boundary. the cession made to, and accepted by the united states, conditioned to secure the interest of individuals. a treaty was thereafter ordered to be held by the united states with the indians, and by that treaty, lands formerly granted, were relinquished to them. the commissioners of north carolina protested in form. the people turned out, had paid ten pounds the hundred acres, for their lands, and they were entitled to compensation from north carolina, or from the united states. it had been said that north carolina had no right but that of pre-emption. this mr. c. denied. north carolina had a right to all the lands within her boundary; and there was an express agreement reserving those lands to individuals. why did the united states contract with the state, if she had no right? the indians never could have been considered an independent nation, else there would be compensation _in imperio_. he mentioned the case of the tallissee country containing four million of acres. by a treaty made in , between the state of georgia and the creeks, this land was ceded to georgia. by a second treaty at new york, this very country was relinquished to the indians, and of course the _bona fide_ right of the state wrested from them. if a decision could be had on this case before a judicial tribunal, it would not require a moment's hesitation to determine in favor of the state, and that the treaty was a nullity. it had been alleged that the right of pre-emption was the only right in possession of the states, that is, a title to purchase of the holders of the property, in exclusion of all other states, or individuals thereof or the particular state. mr. c. contended that the fee-simple of all the soil within the chartered limits belonged to the state. as to the boundaries, the definitive treaty of peace settles them beyond contradiction. as to the proprietors of these lands being in no worse condition now than before the cession back to the indians, the people were ploughing the lands, when driven from them, and will any gentleman say that this is not injuring people? as to the state of north carolina having no particular claim to the land now beyond the indian line, he would put a case within the chapter of possibilities. suppose that all the indians were driven over the mississippi to-morrow, to whom would the lands which they now possess belong? the particular states to be sure, within whose range they lay. the gentlemen who advocate for morality, and who talk of treating the indians with humanity, are the very men who have uniformly countenanced the raising of troops, and augmenting the force on our north-western frontiers. how can they reconcile their conduct? the indians to the south are to be treated with humanity, and those to the north are to be butchered, that the united states may enjoy their property. mr. boudinot said, that the charter from britain extended to the south sea, but such a stretch of territory was not really claimed by britain. he read several of the old laws of north carolina, to prove that the indian right of soil had always been acknowledged. mr. blount had never thought of quoting this book, which he now did, to show that the british government had authorized conquest. he did not know of one purchase made in carolina. it was all conquest, and so were nine-tenths of all the lands held by the white people in america. mr. mcdowell.--those lands which are the subject of debate, and which a number of gentlemen have contended, that north carolina had not a right to grant to her citizens, have been proved to be within the chartered limits as granted by charles ii., and which limits, sovereignty and jurisdiction were guaranteed to the state by the articles of confederation. after this, and within the year , the legislature passed a law for opening an office to receive entries of lands in the district of country now called the territory south of the ohio, for the redemption of special and other certificates; and after a number of the surveys were made, and the grants issued, the government of the united states ordered a treaty to be held with the cherokee indians at holston, in the year , and the commissioners agreed to give up a large quantity of lands before stated to the indians; but, previous to articles being signed, colonel blount, who was the agent for north carolina, entered his protest in behalf of the state, that some of the articles about to be entered into between the commissioners, on the part of the united states, and the cherokee indians, would infringe on the legislative rights of the state of north carolina, and the legislature of the state also protested against the proceedings. i must here remark, that the then government of the united states, agreeably to the articles of confederation, could not legally make use of the property of the state for any purpose without their consent. this continued to be the situation of this business, till after congress requested a cession of those lands, with the sovereignty thereof, which now form the territory south of the ohio, which was complied with under certain reservations, to continue claims, and the situations of the claimants as good as though this cession had not been made, which was a complete acknowledgment of the right of north carolina, on the part of the united states, but in my opinion placed them in the same situation that the state would have been in, had the cession not taken place. since the adoption of the present government, another treaty was ordered to be held with the indians, and the lands were given up to the indians. here the executive right to make such treaty may be questioned, and i believe rightly too; for it would be an extraordinary power for them to make use of the property of individuals, without their consent, or making any compensation, and apply it to national purposes. great difficulties would be involved were a remedy to be attempted in a judicial way against the government. i do therefore think either that policy or interest, on the part of the united states, would point out a compliance, in part, with the report on the table, for it will not place the united states in any worse situation than they would have been in, had the lands not been entered. had that been the case, those certificates would have been in the hands of individuals, a debt against the government, but on their being subscribed now, to the amount actually paid on their relinquishing their claim, you would then have the land, which will be valuable at a period far distant. some gentlemen appear to be alarmed at the sum; but if the principle is a just or fair one, the sum ought not to be an objection. i will here state further, to remove the alarms of those gentlemen, that the sum will fall far short of the statement made by mr. jefferson, as a great deduction is to be taken from that; but i can further assert, that a great number of the claimants would not relinquish their claim to said lands to subscribe; it would generally be such as are in indigent circumstances. and here i cannot help making some reply to the objections stated by several members, who have alleged that north carolina had acted wrong in selling these lands before they had extinguished the indian claim, and that the claimants were in no worse situation than they would have been had the cession not have taken place. i am not a little surprised to find, that gentlemen cannot see the distinction, for had the cession and treaty at holston taken place, they were at liberty to settle the lands, and north carolina was bound to protect them; but since the treaty had been made, the land is not only given up as stated, but it is made criminal to cross the boundary. mr. dexter has stated that north carolina has acted unjustly and wrong in making sale of those lands before she had extinguished the indian claims. here i shall repeat what i stated before in answer to what the gentleman has said: that the indian claims to said lands were, in part, extinguished by henderson's purchase, and part by conquest, and that a considerable part of the lands, that no nation of indians could establish a claim to, had been claimed by different tribes as territory grounds, but had not been inhabited by any tribe within the memory, or any account that can be traced, and for as great a length of time the different tribes had been at war with each other about the right of hunting on said land. but so far as it relates to the right of north carolina, i believe no member has a right to call it in question at this time. the gentleman's arguments would have been more applicable at the time the cession act was under consideration; and as to what the member said about the principle and precedent it would fix, i will only call the attention of that gentleman and the committee, to the conduct of the government of the united states. have they not pushed conquests into the indian country north-west of the ohio? are they not continuing to do so, and is it not in contemplation to sell large quantities of lands in that country, that have never been purchased? if so, the precedent which the gentleman fears so much is already established. but here i beg leave to call the attention of the committee, in the most serious manner, to the number of citizens concerned, perhaps near twenty thousand. a great number of them are men who turned out in support of the american independence, who fought, who bled, and furnished their property freely to the support of the cause. for this service they received certificates, which they wished to realize by entering said lands, and flattered themselves with sitting down on those lands, and in the latter part of life making themselves and families happy. their hopes were soon blasted. after the act of last session, the treaty of holston took place, which gave their property to a savage and cruel enemy, to quiet the minds of an enemy who not only were opposed to us through the war with britain, but ever since have been imbruing their hands in the blood of innocent women and children. what will be the feelings of the claimants, who have acted as i have stated, when they find that their request, which to be sure is a modest one, and which is only to be reimbursed for sums actually paid, is refused? should this be the decision, i leave you to draw the conclusion. should they proceed to settle those lands in opposition to the treaty, i should not be much surprised. but the report on your table goes too far, as to damage and a future preference, which i am not in favor of; therefore the resolutions in the latter part of the report i hope will be stricken out. on the same question, mr. gillespie made the subsequent remarks: he observed a disposition in the house to call the question; he then said that the situation in which he stood required that he should say something in support of the resolution under consideration, as it had been stated as a new and singular case, from which he took the liberty to dissent, as every writer on the law and usage of nations, held it as an invariable axiom, that all sacrifices of property made by individuals for public uses, ought to be paid out of the public purse. he stated the treaty between england, france, and spain, in , and the case of the loyalists in , and as the hour of adjournment had arrived, concluded with a motion for the committee to rise and report progress. the question was then put, shall the committee now rise and report progress? this was negatived. the resolutions in the report were successively put, and lost. the committee then rose; the chairman reported progress, and the house adjourned. friday, january . the house proceeded to consider the report of the committee to whom was referred the message from the president of the united states, of the thirtieth of january, one thousand seven hundred and ninety-four, enclosing the copy of a letter from the governor of north carolina, covering a resolution of the legislature of that state; as, also, the petitions of thomas person and others, proprietors of lands in the territory of the united states south of the river ohio, and of the trustees of the university of north carolina, to which the committee of the whole house had, yesterday, reported their disagreement: whereupon, the first resolution reported by the committee, being again read, in the words following, to wit: "_resolved_, that it shall be lawful for the executive of the state of north carolina to subscribe, by way of loan to the united states, the amount of all such certificates as have been deposited in payment for any lands, (reserved by the act of cession aforesaid,) in payment for any lands which may have been relinquished to the indians by the treaty aforesaid, in trust for the persons by whom they were so deposited, according to their respective rights and interests:" the question was taken, that the house do agree with the committee of the whole house in their disagreement to the said first resolution, and it was resolved in the affirmative. the second resolution reported by the committee, being again read, in the words following, to wit: "_resolved_, that the united states ought to reimburse the said persons the money which they have expended in having entries and surveys made, and in obtaining grants, and any other incidental charges which they have necessarily incurred, with interest; and that they should moreover make a reasonable allowance for the loss and damage which the petitioners have sustained, by having possession of the said land withheld from them:" the question was taken, that the house do agree with the committee of the whole house in their disagreement to the said second resolution, and resolved in the affirmative. the third resolution reported by the committee, being again read, in the words following, to wit: "and whereas, the grants to the aforesaid lands, made by virtue of an act of the legislature of north carolina, are valid to all intents and purposes, as coming fully within the purview of a condition contained in the act of session from the said state to the united states: therefore, "_resolved_, that, whenever the united states shall think proper to extinguish the indian claim to the said lands, by purchase or otherwise, it will be just and reasonable that the several persons who have obtained grants or made surveys or entries, should have such rights confirmed and established, and their titles perfected, in preference to any other persons, on repaying to the treasury of the united states, the amount of what they may now receive, as a compensation for their disbursements and losses, in case such persons shall think proper to make such repayment within a certain time, to be limited by congress for that purpose:" the question was taken that the house do agree with the committee of the whole house, in their disagreement to the said third resolution, and resolved in the affirmative. a motion was then made, and the question being put, that the house do agree to the following resolution: "_resolved_, that such persons as have entered lands agreeably to the laws of north carolina, in the territory ceded by that state to the united states, and on the indian side of the line established by the treaty of holston, ought to be reimbursed by the united states the amount of the purchase-money actually paid for the same, and the necessary expense of locating and surveying, where the survey has been made; such persons first relinquishing their right thereto, to the united states:" it passed in the negative--yeas , nays , as follows: yeas.--theodorus bailey, thomas blount, william b. grove, george hancock, matthew locke, nathaniel macon, joseph mcdowell, alexander mebane, john page, robert rutherford, william smith, benjamin wiliams, richard winn, and joseph winston. nays.--fisher ames, john beatty, elias boudinot, shearjashub bourne, benjamin bourne, lambert cadwalader, thomas claiborne, david cobb, peleg coffin, joshua coit, jonathan dayton, henry dearborn, george dent, gabriel duvall, benjamin edwards, thomas fitzsimons, dwight foster, ezekiel gilbert, nicholas gilman, henry glenn, benjamin goodhue, andrew gregg, thomas hartley, john heath, james hillhouse, william hindman, samuel holten, john hunter, william irvine, aaron kitchell; amasa learned, william lyman, james madison, william montgomery, andrew moore, peter muhlenberg, william vans murray, anthony new, john nicholas, nathaniel niles, alexander d. orr, josiah parker, andrew pickens, francis preston, thomas scott, john s. sherburne, jeremiah smith, samuel smith, zephaniah swift, george thatcher, uriah tracy, jonathan trumbull, john e. van allen, peter van gaasbeck, artemas ward, and paine wingate. another motion was then made and seconded, that the house do come to the following resolution: "resolved, that the president of the united states be requested to cause a treaty to be entered into with any indian tribes who may claim, hold, possess, or be entitled, to any lands within the territory ceded by the state of north carolina to the united states; and to endeavor to obtain, by such treaty, an extinguishment of the indian claims to all lands, the pre-emptive right to which has been sold by the said state, in pursuance of the act of one thousand seven hundred and eighty-three, opening an office for the sale of the said lands." _ordered_, that the said motion be committed to mr. william smith, mr. dayton, mr. swift, mr. mcdowell, and mr. page. monday, february . robert goodloe harper, returned to serve in this house as a member for the state of south carolina, in the room of alexander gillon, deceased, appeared, produced his credentials, was qualified, and took his seat in the house. friday, february . _heirs of count de grasse._ a memorial of amelie, adelaide, melanie, and silvie de grasse, four daughters of the late count de grasse, now residing at salem in the state of massachusetts, was presented to the house and read, praying a loan of money for their present subsistence; the effects which they brought from france being exhausted, and having no other means of support, but in property in the island of st. domingo, from which, under present circumstances, no supplies can be drawn. _ordered_, that the said memorial be referred to mr. ames, mr. madison, and mr. gilman, with instruction to examine the matter thereof, and report the same, with their opinion thereupon, to the house. wednesday, february . _count de grasses heirs._ the house then went into a committee on a memorial from the four daughters of the late admiral count de grasse. it was read with the report from a select committee, which proposed to give each of these ladies, who are now residing in boston, and in indigent circumstances, a thousand dollars, in consideration of the important services rendered by their father to the united states. to this proposal the committee agreed, and the chairman reported the resolution. the house then took up the report. mr. macon objected that though the claims of the petitioners were strong, yet they were not more so than those of multitudes of others. on the very day when we have come to a resolution to receive no more petitions from our fellow-citizens, we are going to give so large a sum at once to foreigners. he was aware that the count de grasse had done eminent services to america, and he felt them as much as any person, but he still saw no reason for preferring these petitioners, when there were likely a hundred of the officers of de grasse, or of rochambeau's army, that were in this country, and in want. mr. dexter said, that if ever there was a case where it would be proper to act first, and thereafter try to find reasons for what had been done, this was such a case. the report was, on a division, agreed to by a great majority--sixty-one gentlemen rising in the affirmative. the resolution is in the following words: _resolved_, that, in consideration of the extraordinary services rendered the united states by the late count de grasse in the year one thousand seven hundred and eighty-one, on the urgent request of the commander-in-chief of the american forces, beyond the term limited for his co-operation with the troops of the united states, there be allowed and paid to amelie, adelaide, melanie, and silvie de grasse, daughters of the late count de grasse, respectively the sum of one thousand dollars each. _ordered_, that a bill or bills be brought in, pursuant to the said resolution, and that mr. ames, mr. madison, and mr. gilman, do prepare and bring in the same. saturday, february . an engrossed bill authorizing the payment of four thousand dollars for the use of the daughters of the late count de grasse, was read the third time and passed. tuesday, february . _case of thomas person and others._ it was moved that the house should go into consideration of the report of the select committee to whom had been referred a resolution of the house in relation to the back lands of north carolina. the following is the resolution of the select committee: "_resolved_, that in case the president of the united states shall think proper to enter into a treaty or treaties with all or any of the indian tribes claiming lands within the territory south of the river ohio, for the extinguishment of their claims to all or any of the said lands, the sum of ---- dollars be, and the same is hereby, appropriated to the purpose of defraying the expenses of any such treaty or treaties." mr. goodhue did not see that the united states had any concern to interfere in such a purchase: it was private property. mr. dayton explained that the petition of thomas person and others comprehended only two millions of acres. the resolution contemplated twenty millions. it will, when completed, enable the united states to protect the choctaws and chickasaws from the creeks and cherokees, if the latter should happen to attack them; and that they will attack the chickasaws is not improbable, from assistance which the latter have given to the white people. besides, the frontier will be capable of defence, at a much cheaper rate, in this way than at present it can be. it is now an irregular line. a peculiar circumstance, besides, will make the lands easy to be purchased. no indian tribes reside on them. when the gentleman from massachusetts considers these things, he will not object, since the united states will gain eighteen millions of acres by the transaction. mr. goodhue admitted the reasoning as to the eighteen millions, but still scrupled as to the rest. mr. swift recommended that the indian claim should in the mean time be extinguished. mr. mcdowell, in reply to mr. goodhue, said that if the gentleman had attended to the reasonings formerly used on this subject, and which had occupied considerable time of the house during the present session, he could have been at no loss for understanding the propriety of this purchase being made by the united states. a committee were named to bring in a bill, in terms of the resolution recommended by the select committee. wednesday, february . _indian lands in georgia._ the house again resolved itself into a committee of the whole house on the report of the committee to whom was referred so much of the message from the president of the united states, of the seventeenth instant, as relates to the disposition of indian lands by the legislature of the state of georgia. mr. ames said, that during the time when the national debt bill was under discussion, he had attempted to get something introduced in favor of the new emission money creditors, but gentlemen always rose _en masse_ against any proposal that would tend to obstruct the progress of the bill. he now again urged that this affair might be taken into consideration. he knew he should be told of a standing rule of the house that the unfinished business must first be taken up. these creditors had waited for four years without redress, and the rules of the house ought to give way to common feeling and common sense. he therefore moved that the rule in question should be suspended. the motion was negatived, and the house then went into a committee upon the second and remaining resolutions in the report of the select committee on the message of the president. the following is a copy of the third and fourth resolutions in this report: "_resolved_, that the president of the united states be authorized, whenever claims under prior contracts may cease to exist, to obtain a cession of the state of georgia, of their claim to the whole or any part of the land within the present indian boundaries; and that ---- dollars ought to be appropriated to enable him to effect the same. "_resolved_, that all persons who shall be assembled, or embodied in arms, on any lands belonging to indians, out of the ordinary jurisdiction of any state, or of the territory south of the river ohio, for the purpose of warring against the indians, or committing depredations upon any indian town, or persons, or property, shall thereby become liable and subject to the rules and articles of war, which are, or shall be established for the government of the troops of the united states." after some discussion, the committee rose; the chairman reported progress, and asked leave to sit again. this was negatived--yeas , nays . the house then took up the resolutions. various amendments were proposed; and the last resolution, in particular, was objected to, as subjecting people to martial law. mr. wadsworth said, that from a trial by jury he had no hopes. there never had been one instance of a white man condemned and hanged by white men, on the frontier, for the murder of an indian, since the first landing in america. there might be such a thing for the murder of an indian, when they lived among the whites. that there ever had been such a thing he did not know. he had been told by judges, upon the frontier, that it was no matter what evidence of a murder of an indian was brought. no jury would bring the criminal in guilty. it was but very lately that a cool and unprovoked murder had been committed on the borders of this state upon an indian. the evidence was clear. nobody pretended to doubt it. the judge gave an earnest charge to the jury; but all to no purpose; they found "not guilty." mr. sedgwick proposed an amendment to the last resolution, as follows: "_resolved_, that all persons who shall be assembled, or embodied in arms, on any lands belonging to indians, out of the ordinary jurisdiction of any state, or of the territory south of the river ohio, for the purpose of warring against the indians, or of committing depredations against any indian town, or persons, or property, shall thereby become liable and subject to be taken and confined by the military force of the united states, in such manner as to be made amenable to, and triable by law." _ordered_, that the said motion be committed to mr. sedgwick, mr. madison, and mr. hillhouse. friday, february . _indian lands in georgia._ the house then went into a committee of the whole, mr. sherburne in the chair, on the report of the select committee to whom had been referred the motion of the th instant, respecting such persons as shall be assembled, or embodied in arms, on any lands belonging to indians, out of the ordinary jurisdiction of any state, or of the territory of the united states south of the river ohio. the resolutions are as follow: "_resolved_, that all persons who, unauthorized by law, may be found in arms on any lands westward of the lines established by treaties with the indian tribes, shall, on conviction thereof, forfeit a sum not exceeding ---- dollars, and be imprisoned not exceeding ---- months. "_resolved_, that it shall be lawful for the military force of the united states to apprehend every person or persons found in arms, as aforesaid, and him or them to convey to the civil authority of the united states, within some of the states, who shall, by such authority, be secured, to be tried in manner hereafter expressed. "_resolved_, that every person apprehended, as aforesaid, shall be tried in manner and form as is expressed in and by the act, entitled, 'an act to regulate trade and intercourse with the indian tribes.'" several amendments were proposed and agreed to. at last mr. venable proposed one, which was, in substance, that persons should not be liable to the operation of the law who were in pursuit of indians that had committed actual hostilities on the frontier. mr. sedgwick paid many compliments to mr. venable, as a sound lawyer, who certainly knew that, by the inherent rights of nature, every man was to pursue and punish those who had robbed him. this was implied in the bill, and was a part of the law of nature, so that there could be no use for its insertion. mr. venable, in reply, declared that he was not so sound a lawyer as the gentleman supposed him to be. he was not so sound a lawyer as to discover that there was any such implication in the bill as the gentleman stated. neither was he a sound enough lawyer to see, that, if his amendment was really implied in the bill, there could be any harm in having it expressed. at present he could discover no such implication. on the contrary, he saw very plainly, that, by the resolution as it now stood, a man whose family had been murdered or carried off by the savages, might, while pursuing them, be stopped and sent to jail. mr. v., from the admission of mr. sedgwick himself, insisted on the propriety of adopting his amendment. mr. hillhouse objected to the permission of armed individuals crossing the line, upon any pretence whatever. what use was there for expending millions every year in defence of the frontier people, if they were to be at liberty to cross the indian line as often as they pleased, and to do what was to all intents and purposes carrying on war? if they will fight, let us recall our forces and leave them to fight for themselves. are they, for the stealing of a horse, or some such thing, to cross the line in armed bodies, and act just as they please? mr. h. utterly denied the doctrine admitted by mr. sedgwick, that a man was authorized to chastise by his own hand those who had injured him. was he to be both judge and executioner in his own case? no such thing. mr. greenup said, that, in coming to congress every year, he was obliged to pass over territories belonging to indians, and he always thought it necessary to carry a gun. he did not see, by the resolution as it stood, why the military officers of the united states might not stop him, as well as other people. mr. moore objected to the clause altogether. it is usual for people on the frontiers to send out parties over the line to watch the indians, and when they are coming to give notice, that the country may be prepared for their reception. now, these people may be seized by your officers. mr. findlay imagined it would be the best way to declare that there shall be no frontier. it had been said by mr. hillhouse that the united states might withdraw their forces, and leave the frontier settlers to defend themselves. did he imagine that, as it is, they are not kept in a perpetual state of alarm, of exertion, and of danger? there has not been a harvest for many years past where the people have not been called off from their labors, and, to their very great loss, to protect the frontier. this resolution not to allow pursuit, would be inviting the indians with a witness. mr. sedgwick said, that this amendment, in reality, destroyed all that had been done or intended. no military officer, after such an amendment, will run the risk of taking a man up. the prisoner has only to say, "i am in pursuit of indians," and then he must be set at liberty; for, in the wilderness, no evidence can be had to contradict him. the amendment, therefore, was a _coup de grace_ to the whole affair. mr. s. said he was personally extremely hurt at the constant complaints of the inefficiency of the defence afforded on the frontier, which cost annually so much to government. mr. blount thought that the best way would be, to let it be known that the whites were authorized to pursue the indians into their own country, and then they would stand more in awe. he mentioned a circumstance that happened within memory, to prove how much the indians feared a serious attack, and how well they remembered a serious chastisement. mr. b. stated that some indians had made an incursion, and were stealing cattle belonging to the army, at a block-house. one of them was most deservedly shot, and the soldier had his pay stopped. mr. hillhouse said, the more that he thought of this amendment, the more he saw its mischievous consequences. it went to invert all the laws that had been made for the protection of the indians; and, instead of being a bill to protect them from the whites, the resolutions would produce a bill to protect the whites from them. mr. smilie objected to mr. sedgwick's having threatened that the army of the united states should be withdrawn from the frontiers. [he had made some other advances against that gentleman, to which mr. sedgwick answered not loud enough to be heard; but at this last, he arose, and said that he would not sit still to hear himself thus quoted for affirmations of which he had never uttered a single word.] mr. fitzsimons really hoped that the house would not agree to this amendment. it would totally defeat all the effects proposed by the bill. it had been said, that if a man had his family murdered, and he was in pursuit of the murderers, he might be stopped by a military officer, and sent to jail. the answer was, that if the officer refused to join him in the pursuit, he would lose his commission. he should be sorry if those resolutions, which had cost so much time and labor to the house, were thus to be thrown away. the amendment was, on a division, carried--yeas , nays . the committee then rose. saturday, february . _indian trading houses._ it was moved that the house should resolve itself into a committee on the bill for establishing trading houses for the purpose of supplying the indian nations within the territory of the united states. this was done accordingly, mr. sherburne in the chair. mr. giles then moved to strike out the first section. mr. goodhue wished to move that the committee rise; to which mr. giles agreed. mr. goodhue then said, that his reason for this motion was, the inattention of members to the business before them. to attempt going through the bill at present was a perfect farce. he was satisfied that the bill would never go through this session. he did not, for his own part, yet know whether it was proper or not. mr. parker said, that the bill had been long enough before the house for the gentleman from massachusetts to have made himself acquainted with its contents and its merits. he vindicated the principle of the bill, as tending to conciliate the affections of a distressed and unhappy people, and as it might likewise prevent the expenses of a war with them. france, britain, and spain, had adopted this policy, and found the good effects of it. he considered the bill as of the utmost consequence, and, thinking so, he should use his utmost influence to get it passed. the expense proposed was not great, as the affair was only experimental. mr. montgomery was of the same opinion with the gentleman who spoke last. he thought that the indians had common sense enough not to quit allies who supplied them with articles which they wanted, till we also made some effectual establishment of that kind. the member went on the same ground with the gentleman who spoke last. mr. boudinot thought that the reason given by mr. goodhue for moving that the committee should rise, viz: that gentlemen would not attend to their duty, was the worst imaginable. what did the house meet for at all? it was the duty of the chair to compel them to mind their business. mr. b. then referred to something which had been said by mr. swift, who had been up just before mr. boudinot. mr. b. in reply to this gentleman, said, that he would not wish to press the bill this session if members did not think it proper. he was willing, if agreeable, to refer the matter for one year to the president. but there never would nor could be a complete peace till something of this kind was done. the president himself had told us as much. mr. giles said, that the bill could not be got through this session. he was willing to take the question either in the first way that he had moved it, or in any other. this was a most improper time of the session to bring it in. mr. murray hoped that the committee would seriously attend to the first clause in the bill, and would not rise. he felt the shortness of the time, but he was willing to devote to-morrow (sunday) to this subject, and he trusted that the importance of it would give the employment a solemnity not inconsistent with the day. without a bill to establish a well-guarded intercourse with the indians, the frontier policy will be unsystematic and despicable. to complete the system, it appeared to him that three great objects are to be embraced: st. force to protect the frontier from indian invasion--for this the military establishment is made. d. a regulation, by law, that shall restrain the frontier people from predatory invasion into the indian country, carrying law and settlement hand in hand. d. the establishment of trading houses under the influence of the two first parts of the system, for the purpose of conciliating the indians by supplying their wants, and detaching their habits of trade and their affections from a foreign nation. with these three points embraced in one system, he had no doubt but their co-operation would produce the great object, peace on the frontier. without the last, the other parts of the system would be totally inefficient. mr. hillhouse said, that the house ought to begin at the right end of the subject, by reversing the vote which the committee passed yesterday, authorizing the frontier people to pass the line in pursuit of the indians as often as they pleased. if this was allowed, it would be impossible ever to keep peace. on a division, shall the committee now rise? it was determined in the affirmative--yeas , nays . the question was then put by the speaker, shall the committee have leave to sit again? it passed in the affirmative--yeas , nays . but it was presently remarked, that some gentlemen had risen both in the yeas and nays; others had been without the bar. the question was, therefore, taken over again, and determined in the negative--yeas , nays . the bill is, therefore, thrown out. _indian lands in georgia._ the house proceeded to consider the resolution and amendments thereto, reported yesterday from the committee of the whole house on the report of the committee to whom was referred a motion of the th instant, respecting such persons as shall be assembled or embodied in arms on any lands belonging to indians out of the ordinary jurisdiction of any state, or of the territory of the united states south of the river ohio: whereupon, the first resolution being read, in the words following, to wit: "_resolved_, that all persons who, unauthorized by law, and with hostile intent, may be found in arms on any lands allotted or secured to the indians by treaties between the united states and any indian tribes, shall, on conviction thereof, forfeit a sum not exceeding ---- dollars, and be imprisoned not exceeding ---- months." and the amendment thereto, reported by the committee of the whole house, to add to the end thereof the words, "unless it shall be in immediate pursuit of indians, who shall have recently committed hostilities." when the question was about to be taken on it, mr. venable rose and pointed out the difference of opinion between two gentlemen who were both opposed to his amendment. one of them (mr. sedgwick) had maintained that, when individual indians, unauthorized by the rest of their tribe, crossed the line and committed depredations, a settler was, by the law of nations, authorized to pursue them across the line and to retaliate, and that this was implied in the bill. mr. hillhouse had materially differed from him, and agreed with mr. venable, in supposing that the person so pursuing across the line was punishable by the resolution as it stood, without the amendment. he then reminded the house that this frontier line was, perhaps, fifteen hundred miles long. the indians may come over any part of it, while the citizens of the united states are not to be allowed to cross it one mile in pursuit. even a man in pursuit of savages who may have carried off his wife and children, may be stopped. the amendment he regarded as essential. military officers may judge on the spot whether such persons whom they meet beyond the line, in pursuit of indians, are within the sense of the act or not. mr. ames denied that the resolution as it first stood took away the right of a man to pursue the indians, in order to recover his wife and children. but the amendment of mr. venable went to legalize all those acts of violence and revenge, that, for a century past, have deluged the frontier with blood. mr. lyman vindicated the inhabitants of the frontier. if the indians are so unfortunate as to be the dupes of other nations, (viz: the spaniards and british,) that is not our fault. the frontier people, from time to time, have done every thing in their power to keep them in peace. mr. hillhouse opposed the amendment. mr. mcdowell said, that weekly and daily murders were committed by the creeks in the district of mero and in the south-western territory. do the united states avenge these murders? no. do they demand back the property carried off? no. instead of any satisfaction to the people, their characters are abused on this floor. the frontier people know that their happiness consists in peace, and, therefore, cultivate it as much as they can. he took a general view of the subject, and explained the insignificance of the posts as at present held by the troops of the united states for any purpose of protection. he noticed the inveterate hatred of the indians against the whites, and their innate thirst of blood. mr. moore went on the same grounds. mr. giles did not like the harsh style assumed by some gentlemen in speaking of the frontier settlers. a hundred years hence these people would preponderate over this part of the continent. he represented an atlantic part of the union, but, at the same time, he would carefully avoid any thing that might offend the western people. the first settlers in this country were, when they first landed, frontier settlers. for his own part, he believed that the war between the whites and the indians would be eternal. he said, that, from some intelligence received this day, there was reason to believe that a war with the creeks might soon be expected. mr. wadsworth.--gentlemen have a great disposition to husband our little time, and i need not mention their manner of doing it. he said that he was willing to grant protection to the frontiers, but not to give leave, as by the amendment proposed, for an eternal war. he thought it calculated to drive the gentlemen on each side of this question into such opposite extremes, that they would never meet again upon the subject. he was willing to grant any degree of protection, but nothing for conquest. he said that the ancestors of the people now in the atlantic part of the country were once frontier people, and he believed them to have been neither worse nor better than the present settlers, who are in the same situation. we are told of murders and robberies committed by the indians; but the accounts of some of the officers employed by government vary a little from this, and give room to suspect that there may be some error on both sides. he did not believe that this amendment would pass; but, if it should do so, it would widen the difference of opinion in the house. mr. page was for the amendment. mr. carnes could not conceive the reason why all regulations made in this house were for indians only, as if the whites were constantly the aggressors. he asked if the creeks performed a single tittle of the treaty of new york, about which there had been so much parade? no. the only design of indians in making a peace is to get presents, for these they always get. as soon as these are spent they commit a new set of murders, in the hopes of another treaty. thus they always have gone on, and always will go on, from murders to treaties, and from treaties to murders. mr. c. complained that a gentleman from maryland (mr. murray) had some days ago called the frontier people semi-savages. he hoped that such an expression would never again be used in that house. as to the treaty of new york, he might be told that the creeks restored a number of women and children. he knew that; but he also knew that, before they did so, the relations of those people were obliged to put their hands in their pockets and pay large sums for their redemption, as the prisoners would not have been delivered up in consequence of the treaty of new york. this bill, without the amendment of mr. venable, would be an encouragement to the savages to come over the line and murder with impunity. mr. scott was entirely in favor of the amendment. if the resolution passes without the amendment houses will soon be smoking and blood running. he believed that the subject in question was beyond the reach of human wisdom to regulate. he thought that striking out the amendment would only encourage the indians to come in a body across the line. this they were never afraid of doing. the only thing which they feared was a pursuit, and this was to be effectually prevented by striking out the amendment. was there ever such a thing heard of before as that, when the savages have carried off a man's wife and children, he must not be at liberty to pursue them? it would be the most frightful thing imaginable for the house to pass a law declaring such a pursuit criminal. mr. s. could figure a case where the farm of a settler might come close to the indian line, and the indian might stand on the other side of the line and shoot him, and his neighbors would not be at liberty to pursue the murderer. mr. s. said, that in that part of the country where he resided (washington county) nothing of this kind was to be feared, as the line was at a sufficient distance from the cultivated lands, but there were other places on the frontier of the united states where this might happen. he said that no christian nation had a right to ask better terms than this amendment offered to the savages. stay upon your own side of the line and you are safe, but, if you cross over to us, we shall cross over in pursuit of you. this was fair play. if the resolution passed without the amendment, mr. s. said that the indians would immediately encamp close on their side of the line, and lie in watch there for whole months together, till they found a safe opportunity of crossing. mr. murray said, he would make a remark or two on the criticism of the gentleman from georgia, who had felt affected by an expression of his a few days since, when he called some of the people of the frontier "semi-savages." he did so, and he felt the expression not inapplicable. he confined the import of this expression exclusively to those upon the frontier who lead an unstationary life--who press forward into the deeper wilderness, by the new waves of advancing population, and live the life of savages without their virtues. he begged leave to call the gentleman's attention to a declaration of his own, last session, to justify this expression, which he used more to designate a peculiar than a general character of the people in the region to which he applied it. the gentleman said, he did not value the lives of one hundred indians as much as the life of one white man, or words to that extent. [this was in a debate just before the close of the last session. the words of mr. carnes were, "i would not give the life of one white man for that of fifty indians."] mr. murray said, he had two points always in his view when the frontier was a subject in that house--protection to the frontier against the hostility of the indians, and restraint upon the whites to prevent the occasions of war against the savages. he had given every testimony to the first by supporting every measure for their defence; that he represented a district perfectly beyond the danger of the indians, was proof that he was actuated in his votes for appropriation and force by no other motive than that which belonged to every man there who supported the great principle of government, that the whole must protect the parts. he wished to see such a system established, combining these two points, as would give complete protection against the indians, and yet restrain the whites from violating peace. he wished to see the day when the arms of the government might, without a crime, strike a whole tribe, if that tribe or its members waged war on the frontiers. but, to do this, it was necessary to place our relative situation so as that justice might be secured. he wished to adopt a regulation like the present, to prevent our fellow-citizens from the gratification of private revenge, the source from whence so much blood is shed. in order to justify exemplary punishment on indian tribes, you must first be in a situation to restrain the whites from doing injustice to them. you must do what all nations have done, when, from the general or local state of civilization, private war disturbs public tranquillity--you must restrain the right of private war, by placing the power of vengeance out of the reach of individuals, and in the hands of government. nor did this idea go at all to restrain that inalienable right of resistance against imminent danger, which was sanctioned by the law of nature. the picture drawn by the gentleman from pennsylvania, (mr. scott,) with his accustomed ability and force, was certainly an interesting one--were an encampment of indians to be heard in the woods near a settlement, after any evidence of hostility, he did not doubt but the neighbors would be perfectly justifiable in changing the scene of blood from the cottage to the camp--if the amendment which actually arms all the passions of revenge with the rights of law, be rejected, you will attain one of the great objects of frontier policy--the ability to restrain the right of private war, from which public war arises as a consequence. the government will, when this ability to restrain is complete, become responsible for the protection of the whites against the savages. until that is accomplished, he did not believe government could, either in justice or policy, expend treasure or use force, when uncertain of the justice of the cause. he therefore hoped that the amendment would be rejected. mr. findlay was for the amendment, and mentioned several examples to prove the cruelty and perfidy of the indians. the amendment itself was in these words: "unless it shall be in immediate pursuit of the indians who have recently committed hostilities." mr. madison did not think the question explicit; he therefore proposed another, which was to prevent the pursuers from coming within a certain number of miles of an indian town. he was extremely doubtful whether his amendment or any other would effectually answer the end proposed. he was convinced that no law of any kind would be able to hinder people from crossing the line in pursuit of indians, who might have carried off their families. mr. harper said, that however little time the house had to spare, and however long the discussion might have been, he could not help trespassing on their patience for a short time to deliver his sentiments, as he thought himself tolerably acquainted with the subject. he expressly denied that the indians ever committed any murder without previous provocation. the process is shortly this: an indian crosses the line and steals a horse. and as long as indians exist they will always steal horses. the man to whom the horse belonged collects as many of his neighbors as he thinks sufficient, pursues the indian, and, not contented with recovering his horse, he kills the thief. the indians, who have no such sacred ideas of property, immediately come over the line, and in revenge murder a number of innocent people. indian murders are not unprovoked. they are not of that stamp. mr. h. considered the amendment of mr. venable as a source of endless confusion. any man, if it passed, might cross the indian line as often as he thought proper, and say that he was in pursuit of indians with prisoners. i undertake, (said he,) if you will give me a hundred dollars, to go to the frontier and get a witness who will come into a court of justice and swear that on such a day ten indians came over the line in arms. mr. h. said he was personally acquainted with the frontiers. he had a high respect for the inhabitants, there were many very worthy people among them; but likewise many others of a very different kind. this amendment will set open a door to all sorts of fraud and mischief. mr. h. honored the sentiments of patriotism that gave rise to it, but he could not possibly agree to the propriety of its insertion. mr. white, the member from the south-western territory, said, that he had to complain of the slaughter of near four hundred citizens under the auspices of your government. he felt himself much affected, and as to the doctrine of indian killing, only in retaliation, he denied it altogether. the love of blood was hereditary in them. when the gentleman says that with a hundred dollars in his pocket, he can find ten men on the frontiers--[mr. harper explained, that he only said he could find a witness.] well, (said mr. w.) if the gentleman did not mean a reflection on the frontiers, he meant nothing at all. i know not how well the gentleman may be practised in the arts of subornation, but i myself know of no such man. [mr. harper.--i expected the gentleman would confine himself to a decent answer.] mr. w. proceeded to observe that no man acquainted with the frontiers would have made any such assertion as the gentleman had done. he was likewise extremely surprised at the gentleman from maryland, for having persisted in affirming that many of the frontier people were semi-savages. the yeas and nays were now taken on the amendment, which was lost by a majority of --yeas , nays , as follows: yeas.--james armstrong, theodorus bailey, abraham baldwin, thomas blount, thomas p. carnes, gabriel christie, thomas claiborne, william j. dawson, george dent, samuel dexter, gabriel duvall, benjamin edwards, william findlay, christopher greenup, william b. grove, george hancock, carter b. harrison, john heath, william irvine, matthew locke, william lyman, nathaniel macon, joseph mcdowell, alexander mebane, william montgomery, andrew moore, peter muhlenberg, joseph neville, anthony new, alexander d. orr, john page, thomas scott, john smilie, thomas sprigg, thos. tredwell, philip van cortlandt, abraham venable, francis walker, richard winn, and joseph winston. nays.--fisher ames, john beatty, elias boudinot, shearjashub bourne, benjamin bourne, lambert cadwalader, david cobb, peleg coffin, joshua coit, henry dearborn, thomas fitzsimons, dwight foster, ezekiel gilbert, nicholas gilman, henry glenn, benjamin goodhue, james gordon, robert goodloe harper, james hillhouse, william hindman, samuel holten, john hunter, aaron kitchell, john wilkes kittera, amasa learned, james madison, francis malbone, william vans murray, nathaniel niles, andrew pickens, theodore sedgwick, john s. sherburne, jeremiah smith, israel smith, wm. smith, zephaniah swift, george thatcher, uriah tracy, jonathan trumbull, john e. van allen, peter van gaasbeck, peleg wadsworth, jeremiah wadsworth, john watts, benjamin williams, and paine wingate. mr. giles, who had been in the house during the whole debate, had gone out just before the question was put, and returning immediately after the names had been called, asked leave to vote. the rule of the house was read by the speaker, which is that no member shall vote who was not present at putting of the question. mr. g., on this account, was not allowed a vote. mr. carnes then moved to amend the said resolution by adding to the end thereof the following words: "unless it shall be in continuation of a pursuit to a distance not exceeding ---- miles beyond the line of the particular indians who shall have recently committed murder, or may be carrying off captives or plunder." it was resolved in the affirmative. the said resolution, as amended, was then again read, and agreed to by the house, as follows: _resolved_, that all persons who, unauthorized by law, and with hostile intent, may be found in arms on any lands allotted or secured to the indians by treaties between the united states and any indian tribes, shall, on conviction thereof, forfeit a sum not exceeding ---- dollars, and be imprisoned not exceeding ---- months, unless it shall be in continuation of a pursuit to a distance not exceeding ---- miles beyond the line of the particular indians who shall have recently committed murder, or may be carrying off captives or plunder. the second resolution being again read, and amended, was, on the question put thereupon, agreed to by the house, as follows: _resolved_, that it shall be lawful for the military force of the united states to apprehend every person or persons found in arms as aforesaid, and him or them to convey to the civil authority of the united states, within some one of the states, who shall, by such authority, be secured to be tried in manner and form as is provided in and by the act entitled, "an act to regulate trade and intercourse with the indian tribes:" _provided_, that no person shall be confined after his arrest, and before his removal, more than ---- days. _ordered_, that a bill or bills be brought in pursuant to the said resolutions, and that mr. sedgwick, mr. madison, and mr. hillhouse, do prepare, and bring in the same. tuesday, march . _adjournment._ _ordered_, that a message be sent to the senate to inform them that this house, having completed the business before them, are now about to adjourn without day; and that the clerk of this house do go with the said message. a message from the senate informed the house that the senate have appointed a committee, on their part, jointly, with such committee as may be appointed on the part of this house, to wait on the president of the united states, and inform him that congress is ready to adjourn without day, unless he may have any further communications to make to them. the house proceeded to consider the said message: whereupon, _resolved_, that this house doth agree to the resolution of the senate for the appointment of a joint committee of the two houses, to wait on the president of the united states, and inform him of the intended recess of congress; and that mr. boudinot, mr. sedgwick, and mr. trumbull, be of the committee appointed on the part of this house. on a motion made and seconded, "that the thanks of this house be presented to frederick augustus muhlenberg, in testimony of their approbation of his conduct in discharging the arduous and important duties assigned him while in the chair:" it was resolved unanimously: whereupon, mr. speaker made his acknowledgments to the house in manner following: "gentlemen: i feel myself highly honored by this distinguished mark of your approbation of my conduct in the station you were pleased to assign unto me; and although i am conscious that my feeble efforts do not merit so precious a reward, yet permit me to assure you that it has made a lasting impression on my mind, and i shall ever esteem it with the most unfeigned satisfaction. "gentlemen, i sincerely thank you; may every happiness attend you; may you long continue to enjoy the confidence of your fellow-citizens; and may you meet with their just applause of having deserved well of your country." mr. boudinot, from the joint committee appointed to wait on the president of the united states and inform him of the intended recess of congress, reported that the committee had performed that service, and that the president signified to them that he had no further communication to make during the present session: whereupon, mr. speaker adjourned the house _sine die_. fourth congress.--first session. held in the city of philadelphia, december , . list of members. senators. _new hampshire._--john langdon, s. livermore. _vermont._--elijah paine, moses robinson. _massachusetts._--george cabot, caleb strong. _rhode island._--william bradford, theodore foster. _connecticut._--oliver ellsworth, jonathan trumbull. _new york._--aaron burr, rufus king. _new jersey._--f. frelinghuysen, john rutherford. _pennsylvania._--william bingham, james ross. _delaware._--henry latimer, john vining. _maryland._--john henry, richard potts. _virginia._--stevens t. mason, henry tazewell. _north carolina._--timothy bloodworth, alexander martin. _south carolina._--pierce butler, jacob read. _georgia._--james gunn, george walton. _kentucky._--john brown, humphrey marshall. representatives. _new hampshire._--abiel foster, nicholas gilman, j. s. sherburne, jeremiah smith, paine wingate. _vermont._--daniel buck, israel smith. _massachusetts._--fisher ames, theop. bradbury, henry dearborn, dwight foster, nathaniel freeman, benjamin goodhue, george leonard, samuel lyman, william lyman, john read, t. sedgwick, george thatcher, joseph b. varnum, p. wadsworth. _rhode island._--benjamin bourne, francis malbone. _connecticut._--joshua coit, c. goodrich, roger griswold, james hillhouse, nathaniel smith, zephaniah swift, uriah tracy. _new york._--theodorus bailey, william cooper, ezekiel gilbert, henry glenn, john hathorn, j. n. havens, e. livingston, john e. van allen, philip van cortlandt, john williams. _new jersey._--jonathan dayton, thomas henderson, aaron kitchell, isaac smith, mark thompson. _pennsylvania._--david bard, george ege, william findlay, albert gallatin, andrew gregg, thomas hartley, daniel heister, john w. kittera, samuel maclay, frederick a. muhlenberg, john richards, samuel sitgreaves, john swanwick, richard thomas. _delaware._--john paton. _maryland._--gabriel christie, jeremiah crabb, george dent, gabriel duvall, william hindman, samuel smith, thomas sprigg, william vans murray. _virginia._--richard brent, samuel j. cabell, thomas claiborne, john clopton, isaac coles, william b. giles, george hancock, carter b. harrison, john heath, john george jackson, andrew moore, anthony new, john nicholas, john page, josiah parker, francis preston, robert rutherford, a. b. venable. _north carolina._--thomas blount, nathan bryan, dempsey burges, jesse franklin, james gillespie, william b. grove, james holland, matthew locke, nathaniel macon, absalom tatom. _south carolina._--lemuel benton, samuel earle, wade hampton, r. g. harper, william smith, richard winn. _georgia._--a. baldwin, john milledge. _tennessee._--andrew jackson. _kentucky._--christopher greenup. proceedings in the senate. monday, december , . the following senators appeared, and took their seats: john langdon and samuel livermore, from new hampshire. caleb strong and george cabot, from massachusetts. theodore foster, from rhode island. oliver ellsworth and jonathan trumbull, from connecticut. moses robinson, from vermont. rufus king, from new york. james ross and william bingham, from pennsylvania. henry latimer, from delaware. henry tazewell and stevens t. mason, from virginia. alexander martin and timothy bloodworth, from north carolina. pierce butler and jacob read, from south carolina. the vice president being absent, the senate proceeded to the election of a president _pro tempore_, as the constitution provides, and henry tazewell was duly elected. _ordered_, that the secretary wait on the president of the united states, and acquaint him that a quorum of the senate is assembled, and that, in the absence of the vice president, they have elected henry tazewell president _pro tempore_. _ordered_, that the secretary acquaint the house of representatives that a quorum of the senate is assembled, and ready to proceed to business; and that, in the absence of the vice president, they have elected henry tazewell president _pro tempore_. _ordered_, that messrs. read and cabot be a joint committee on the part of the senate, together with such committee as the house of representatives may appoint on their part, to wait on the president of the united states, and notify him that a quorum of the two houses is assembled, and ready to receive any communications that he may be pleased to make to them. a message from the house of representatives informed the senate that a quorum of the house is assembled; that they have elected jonathan dayton their speaker; and that they have concurred in the appointment of a joint committee to wait on the president of the united states, and acquaint him that the two houses of congress are assembled, and are ready to receive any communications that he may be pleased to lay before them. mr. read, from the joint committee appointed for that purpose, reported that they had waited on the president of the united states, and had notified him that a quorum of the two houses of congress were assembled; and the president of the united states acquainted the committee that he would meet the two houses in the representatives' chamber at o'clock to-morrow. tuesday, december . humphrey marshall, from the state of kentucky, attended. a message from the house of representatives informed the senate that the house are now ready to meet the senate in the chamber of that house, to receive such communications as the president of the united states shall be pleased to make to them. whereupon, the senate repaired to the chamber of the house of representatives for the purpose above expressed. the senate then returned to their own chamber, and a copy of the speech of the president of the united states to both houses of congress was read, as follows: _fellow-citizens of the senate, and of the house of representatives:_ i trust i do not deceive myself, while i indulge the persuasion that i have never met you at any period, when, more than at the present, the situation of our public affairs has afforded just cause for mutual congratulation, and for inviting you to join with me in profound gratitude to the author of all good for the numerous and extraordinary blessings we enjoy. the termination of the long, expensive, and distressing war in which we have been engaged with certain indians north-west of the ohio, is placed in the option of the united states, by a treaty which the commander of our army has concluded, provisionally, with the hostile tribes in that region. in the adjustment of the terms, the satisfaction of the indians was deemed an object worthy no less of the policy than of the liberality of the united states, as the necessary basis of durable tranquillity. the object, it is believed, has been fully attained. the articles agreed upon will immediately be laid before the senate, for their consideration. contemplating the internal situation, as well as the external relations, of the united states, we discover equal cause for contentment and satisfaction. while many of the nations of europe, with their american dependencies, have been involved in a contest unusually bloody, exhausting, and calamitous; in which the evils of foreign war have been aggravated by domestic convulsions and insurrection; in which many of the arts most useful to society have been exposed to discouragement and decay; in which scarcity of subsistence has embittered other sufferings; while even the anticipations of a return of the blessings of peace and repose are alloyed by the sense of heavy and accumulating burdens which press upon all the departments of industry, and threaten to clog the future springs of government; our favored country, happy in a striking contrast, has enjoyed general tranquillity--a tranquillity the more satisfactory, because maintained at the expense of no duty. faithful to ourselves, we have violated no obligation to others. our agriculture, commerce, and manufactures, prosper beyond former example; the molestations of our trade (to prevent a continuance of which, however, very pointed remonstrances have been made) being overbalanced by the aggregate benefits which it derives from a neutral position. our population advances with a celerity which, exceeding the most sanguine calculations, proportionally augments our strength and resources, and guarantees our future security. every part of the union displays indications of rapid and various improvement; and with burdens so light as scarcely to be perceived; with resources fully adequate to our present exigencies; with governments founded on the genuine principles of rational liberty; and with mild and wholesome laws--is it too much to say, that our country exhibits a spectacle of national happiness never surpassed, if ever before equalled? _gentlemen:_ among the objects which will claim your attention in the course of the session, a review of our military establishment is not the least important. it is called for by the events which have changed, and may be expected still further to change, the relative situation of our frontiers. in this review, you will doubtless allow due weight to the considerations that the questions between us and certain foreign powers are not yet finally adjusted; that the war in europe is not yet terminated; and that our western posts, when recovered, will demand provision for garrisoning and securing them. a statement of our present military force will be laid before you by the department of war. with the review of our army establishment is naturally connected that of the militia. it will merit inquiry, what imperfections in the existing plan further experience may have unfolded. the subject is of so much moment, in my estimation, as to excite a constant solicitude that the consideration of it may be renewed until the greatest attainable perfection shall be accomplished. time is wearing away some advantages for forwarding the object, while none better deserves the persevering attention of the public councils. while we indulge the satisfaction which the actual condition of our western borders so well authorizes, it is necessary that we should not lose sight of an important truth, which continually receives new confirmations, namely: that the provisions heretofore made with a view to the protection of the indians from the violences of the lawless part of our frontier inhabitants are insufficient. it is demonstrated that these violences can now be perpetrated with impunity; and it can need no argument to prove, that, unless the murdering of indians can be restrained by bringing the murderers to condign punishment, all the exertions of the government to prevent destructive retaliations by the indians will prove fruitless, and all our present agreeable prospects illusory. the frequent destruction of innocent women and children, who are chiefly the victims of retaliation, must continue to shock humanity, and an enormous expense to drain the treasury of the union. to enforce upon the indians the observance of justice, it is indispensable that there shall be competent means of rendering justice to them. if these means can be devised by the wisdom of congress, and especially if there can be added an adequate provision for supplying the necessities of the indians, on reasonable terms--a measure, the mention of which i the more readily repeat, as in all the conferences with them they urge it with solicitude--i should not hesitate to entertain a strong hope of rendering our tranquillity permanent. i add, with pleasure, that the probability even of their civilization is not diminished by the experiments which have been thus far made under the auspices of government. the accomplishment of this work, if practicable, will reflect undecaying lustre on our national character, and administer the most grateful consolations that virtuous minds can know. _gentlemen of the house of representatives:_ the state of our revenue, with the sums which have been borrowed and reimbursed pursuant to different acts of congress, will be submitted from the proper department, together with an estimate of the appropriations necessary to be made for the service of the ensuing year. whether measures may not be advisable to re-enforce the provision for the redemption of the public debt, will naturally engage your examination. congress have demonstrated their sense to be, and it were superfluous to repeat mine, that whatsoever will tend to accelerate the honorable extinction of our public debt, accords as much with the true interest of our country as with the general sense of our constituents. _gentlemen of the senate, and of the house of representatives:_ the statements which will be laid before you relative to the mint will show the situation of that institution, and the necessity of some further legislative provisions for carrying the business of it more completely into effect, and for checking abuses which appear to be arising in particular quarters. the progress of providing materials for the frigates, and in building them; the state of the fortifications of our harbors; the measures which have been pursued for obtaining proper sites for arsenals, and for replenishing our magazines with military stores; and the steps which have been taken towards the execution of the law for opening a trade with the indians--will likewise be presented for the information of congress. temperate discussion of the important subjects which may arise in the course of the session, and mutual forbearance where there is a difference of opinion, are too obvious and necessary for the peace, happiness, and welfare of our country, to need any recommendation of mine. g. washington. united states, _december_ , . _ordered_, that messrs. king, ellsworth, and cabot, be a committee to report the draft of an address to the president of the united states, in answer to his speech this day to both houses of congress. wednesday, december . the vice president of the united states attended. the following motion was made by mr. martin: "_resolved_, that, in conformity to a resolution of the senate of the united states, passed the th day of february, , the gallery of the senate chamber be permitted to be opened every morning, subject to the restrictions therein mentioned, a suitable gallery having been erected and provided in the senate chamber, in the late recess of congress, for that purpose." and, the motion being amended, it was _resolved_, that, in conformity to a resolution of the senate of the united states, passed the th day of february, , the gallery of the senate chamber be permitted to be opened every morning, subject to the restrictions in said resolution mentioned. thursday, december . john brown, from the state of kentucky, and frederick frelinghuysen, from the state of new jersey, severally attended. mr. king, from the committee appointed for that purpose, reported the draft of an address to the president of the united states, in answer to his speech to both houses of congress, at the opening of the session, which was read, and ordered to lie for consideration until to-morrow. friday, december . elijah paine, from the state of vermont, attended. _address to the president._ the senate took into consideration the report made by the committee, of an address to the president of the united states, in answer to his speech to both houses of congress, at the opening of the session, which is as follows: sir: it is with peculiar satisfaction that we are informed by your speech to the two houses of congress, that the long and expensive war in which we have been engaged with the indians north-west of the ohio is in a situation to be finally terminated; and, though we view with concern the danger of an interruption of the peace so recently confirmed with the creeks, we indulge the hope, that the measures that you have adopted to prevent the same, if followed by those legislative provisions that justice and humanity equally demand, will succeed in laying the foundation of a lasting peace with the indian tribes on the southern as well as on the western frontiers. the confirmation of our treaty with morocco, and the adjustment of a treaty of peace with algiers, in consequence of which our captive fellow-citizens shall be delivered from slavery, are events that will prove no less interesting to the public humanity than they will be important in extending and securing the navigation and commerce of our country. as a just and equitable conclusion of our depending negotiations with spain will essentially advance the interest of both nations, and thereby cherish and confirm the good understanding and friendship which we have at all times desired to maintain, it will afford us real pleasure to receive an early confirmation of our expectations on this subject. the interesting prospect of our affairs, with regard to the foreign powers between whom and the united states controversies have subsisted, is not more satisfactory than the review of our internal situation: if from the former we derive an expectation of the extinguishment of all the causes of external discord that have heretofore endangered our tranquillity, and on terms consistent with our national honor and safety, in the latter we discover those numerous and wide-spread tokens of prosperity which, in so peculiar a manner, distinguish our happy country. circumstances thus every way auspicious demand our gratitude, and sincere acknowledgments to almighty god, and require that we should unite our efforts in imitation of your enlightened, firm, and persevering example, to establish and preserve the peace, freedom, and prosperity of our country. the objects which you have recommended to the notice of the legislature will, in the course of the session, receive our careful attention, and, with a true zeal for the public welfare, we shall cheerfully co-operate in every measure that shall appear to us best calculated to promote the same. john adams, _vice president of the united states, and president of the senate._ the address was taken up by paragraphs. the fourth and fifth paragraphs were moved to be struck out by mr. mason.[ ] mr. mason observed, that he had hoped nothing contained in the address reported as an answer to the president's speech, would have been such as to force the senate to precipitate decisions. the two clauses he objected to disappointed him in that hope. they were calculated to bring again into view the important subject which occupied the senate during their june session. this he conceived could answer no good purpose; the minority on that occasion were not now to be expected to recede from the opinions they then held, and they could not therefore join in the indirect self-approbation which the majority appeared to wish for, and which was most certainly involved in the two clauses which he should hope would be struck out. if his motion were agreed to, the remainder of the address would, in his opinion, stand unexceptionable. he did not see, for his part, that our situation was every way auspicious. notwithstanding the treaty, our trade is grievously molested. mr. king observed, that the principal features observable in the answer reported to the president's address, were to keep up that harmony of intercourse which ought to subsist between the legislature and the president, and to express confidence in the undiminished firmness and love of country which always characterize our chief executive magistrate. he objected to striking out especially the first clause, because founded on undeniable truth. it only declares that our prospects, as to our external relations, are not more satisfactory than a review of our internal situation would prove. was not this representation true, he asked; could it be controverted? this clause, he contended, contained nothing reasonably objectionable; it did not say as much as the second, to which only most of the objections of the member up before him applied, an answer to which he should defer, expecting that a question would be put on each in order. the chair requested that the motion should be reduced to writing. mr. mason accordingly reduced it to writing, and it went to striking out both clauses at once. mr. mason agreed most cordially that the situation of our external relations were not more a cause of joy than our situation at home. but the obvious meaning of the clause, he conceived, was an indirect approval of our situation relative to external concerns; and to this he could not give his assent, as he did not consider their aspect as prosperous or auspicious. mr. butler said, that when the committee was appointed to draft an answer, he hoped they would have used such general terms as to have secured a unanimous vote. he was willing to give the chief magistrate such an answer as respect to his station entitled him to, but not such a one as would do violence to his regard for the constitution and his duty to his constituents. he could not approve of long and detailed answers, however unexceptionable the speech might be in matter, and however respectable the character might be from whom it came. he had hoped, from the peculiar situation of the country, and of the senate, that nothing would have been brought forward in the answer, on the subject which agitated the june executive session, calculated to wound the feelings of members. he had been disappointed; it was evident that some members of the senate could not give their voice in favor of the address in its present shape, without involving themselves in the most palpable inconsistency. he had long since, for his own part, declared himself against every article of the treaty, because in no instance is it bottomed on reciprocity, the only honorable basis. after this declaration, how could he, or those who coincided in opinion with him, agree to the present address without involving themselves in the most palpable inconsistency? the sentence objected to, notwithstanding the explanation of the gentleman from new york, appeared to him so worded as to lead the citizens at large to believe that the spoliations on our commerce were drawing to a fortunate close. this was not, he conceived, warranted by the existing state of things. indeed, he protested, he knew no more of the actual situation of the treaty negotiation than the remotest farmer in the union; could he then declare, he asked, that it was drawing to a happy close? indeed, from the latest information received, far from our situation having been ameliorated by the negotiations of our executive, he conceived our trade as much in jeopardy as ever. as to the internal prosperity, he owned there was some cause for congratulation; but even in this his conviction could not carry him as far as the clauses in the address seemed to go. in a pecuniary point of view, the country had made a visible progress; but he saw in it no basis of permanent prosperity. there were no circumstances attendant on it that gave a fair hope that the prosperity would be permanent. the chief cause of our temporary pecuniary prosperity is the war in europe, which occasions the high prices our produce at present commands; when that is terminated, those advantageous prices will of course fall. mr. b. now came to speak of the second objectional clause. he regretted whenever a question was brought forward that involved personality in the most indirect manner. he wished always to speak to subjects unconnected with men; but the wording of the clause was unfortunately such as to render allusion to official character unavoidable. he objected principally to the epithet _firm_, introduced into the latter clause, as applied to the supreme executive. why _firmness_? he asked. to what? or to whom? is it the _manly_ demand of restitution made of great britain for her accumulated injuries that called forth the praise? for his own part he could discern no firmness there. is it for the _undaunted_ and _energetic_ countenance of the cause of france, in her struggle for freeing herself from despotic shackles? he saw no _firmness_ displayed on that occasion. where then is it to be found? was it in the opposition to the minority of the senate and the general voice of the people against the treaty that that _firmness_ was displayed? if it is that _firmness_ in opposing the will of the people, which is intended to be extolled, the vote shall never, said mr. b., leave the walls of the senate with _my_ approbation. mr. read said, he was not in the habit of giving a silent vote, and, as many of his constituents were adverse to the instrument to which he had given his assent, he thought this a fit opportunity to say something on the subject. gentlemen on the other side had spoken of their feelings; did they suppose, he asked, that those who were in the majority had not feelings? also, gentlemen declared they would not recede from their former determinations; did they expect that the majority would recede? he had, he said, taken the question of the treaty in all its aspects, and considered it maturely, and though he lamented that he differed in opinion on that subject with his colleague, and a portion of the people of his state, he nevertheless remained convinced that the ratification of it was advisable: it rescued the country from war and its desolating horrors. after reading that part of the president's speech to which the clauses objected to were an echo, he asked, whether any one could say, under the conviction that the measures of government had prevented a war, that our view of foreign relations was not consolatory? on all hands, he observed, the idea of a war was deprecated; both sides of the house wished to avoid it; then is it not a consolatory reflection to all that its horrors have been averted? is there a man who does not believe that, had the treaty not been ratified, we should have had war? if the country had been plunged into a war, would it be as flourishing as it is? the trifling vexations our commerce has sustained are not to compare to the evils of hostility. what good end could have been answered by a war? the address, in the part under discussion, says no more than that we rejoice at the prospect that the blessings of peace will be preserved; and does not this expectation exist? great britain, in the plenitude of her power, had availed herself of the right she had under the law of nations, of seizing enemies' goods in neutral vessels; but has allowed compensation to some americans, and a system of mild measures on our part is the best security for further. but the senate and the president are the constitutional treaty-making powers. if mistaken in their decisions, they cannot be accused of having been misled by sudden and immatured impressions. he should conceive himself unfit to fill a chair in the senate, if he suffered himself to be carried away by such impressions. the people could not, in their town meetings, deprived of proper information, possibly form an opinion that deserved weight, and it was the duty of the executive not to be shaken in their determination by tumultuous proceedings from without. upon this ground he much approved the president's conduct, and thought it entitled to the epithet, firm. in local questions, affecting none but the interest of his constituents, he should attend to their voice, but on great national points, he did not consider himself as a representative from south carolina, but as a senator for the union. in questions of this last kind, even if the wishes of his constituents were unequivocally made known to him, he should not conceive himself bound to sacrifice his opinions to theirs. he viewed the president as standing in this situation, and though he might hear the opinions of the people from every part of the united states, he should not sacrifice to them his own conviction; in this line of conduct he has shown his firmness, and deserves to be complimented for it by the senate. mr. ellsworth was opposed to striking out. the clause records a fact, and if struck out, the senate deny it. the president asserts it; in the address reported, the senate assent; a motion is made to strike out; is it because the truth of it is doubted? it cannot be called an unimportant fact, therefore its omission will not be imputed to oversight. the latter part of the clause expresses our gratitude to almighty god. will the senate refuse to make an acknowledgment of that kind? do they not admit that he is the source of all good, and can they refuse to acknowledge it? and if so, is it possible that, in admitting the fact and expressing the sentiment, which so naturally flows from it, the senate should wound the feelings of any friend to his country? the truth of the fact is as clear as that the sun now shines; the sentiment is unexceptionable; he, therefore, recommended to his friend the mover, not to insist upon striking out merely, but that he should vary the motion, and propose a substitute. to bring the mind to the point with precision, it was necessary to attend to the wording of the clause. he read it. as to the signification of that part which relates to our foreign concerns, he did not consider it as hypothetical, but a positive declaration of a conviction that their situation is satisfactory, and on that ground he wished to meet the question. the clause objected to expresses an expectation that the causes of external disagreement which have unhappily existed, will be peaceably done away. he said he had that expectation; many have it not. those who have it not will negative the clause; those who have it will vote in its favor; the result will be the sense of a majority; the senate could not be expected, more than on other occasions, to be unanimous; if the declarations contained in those clauses are supported, they will be considered as the sense of the majority of the senate; others may dissent; but because unanimity could not be obtained, it was no reason why the majority should give a virtual negative to the declaration which they conceived founded on truth. mr. tazewell said, the discussion had taken a turn different from that which he expected when he heard the motion. he understood the motion at the time it was made, and still so understood it, as not intending to question the propriety of any thing which was contained in the president's communication to both houses of congress. but from what had been said, (by mr. read, of south carolina,) that part of the answer to the president's communication which had given rise to the motion, was intended to have a further operation than he originally believed. he asked what had given rise to the practice of returning an answer of any kind to the president's communication to congress in the form of an address? there was nothing, he said, in the constitution, or in any of the fundamental rules of the federal government, which required that ceremony from either branch of the congress. the practice was but an imitation of the ceremonies used upon like occasions in other countries, and was neither required by the constitution, nor authorized by the principles upon which our government was erected. but having obtained, he did not intend now to disturb it. to allow the utmost latitude to the principle which had begotten the practice, it could only tolerate the ceremony as a compliment to the chief magistrate. it could not be permitted to arrest all opinions previous to regular discussions, nor to operate as a means of pledging members to the pursuit of a particular course, which subsequent and more full inquiries might show to be extremely improper. every answer, therefore, to the president's communication ought to be drawn in terms extremely general, neither seducing the president into a belief that this house would pursue a general recommendation into points not at first contemplated by them, nor pledge themselves to the world that that state of things was just, which time had not permitted them thoroughly to examine. the clauses now under consideration had, at least in one instance, deviated from this principle. they declare to the world, "that the interesting prospect of our affairs with regard to the foreign powers, between whom and the united states controversies have subsisted, is not more satisfactory than the review of our internal situation." the communications from the president have not uttered so bold a sentiment, nor is there any thing in those communications that justifies the assertion of this fact. placing the treaty with great britain out of the question, which seems to have been the uppermost consideration when this sentence was penned, the seizure of our provision vessels since the signature of that treaty, and the unwarrantable imprisonment of our seamen, are acts which cloud our prosperity and happiness. the minds of the americans must be brought to consider these things as trivial incidents in our political affairs, before the sentence under consideration can be approved. he said he must, therefore, vote for the motion to strike out the two clauses of the answer, in order that some more fit expressions might then be introduced to succeed them. he hoped the answer might be couched in terms just and delicate towards the president, without wounding the feelings of any senator; and he believed both might be done without any difficulty, after the two clauses were expunged. after some further observations from messrs. mason, butler, and bloodworth, in which the latter expressed the opinion that he did conceive the terms of our peace with great britain consistent with the dignity and honor of the united states, the question was put, and decided for striking out--ayes , noes . on a further attempt to amend one of the clauses some conversation took place more remarkable for ingenuity than interesting for solidity, being chiefly a debate upon words. the senate divided on it-- to . on the question, of agreeing to the address, it was carried-- to , as follows: yeas.--messrs. bingham, cabot, ellsworth, foster, frelinghuysen, king, latimer, livermore, marshall, paine, read, ross, strong, and trumbull. nays.--messrs. bloodworth, brown, butler, langdon, martin, mason, robinson, and tazewell. _ordered_, that the committee who prepared the address wait on the president of the united states, and desire him to acquaint the senate at what time and place it will be most convenient for him that it should be presented. mr. king reported, from the committee, that they had waited on the president of the united states, and that he would receive the address of the senate to-morrow at o'clock. whereupon, resolved, that the senate will, to-morrow at o'clock, wait on the president of the united states accordingly. saturday, december . agreeably to the resolution of yesterday, the senate waited on the president of the united states, and the vice president, in their name, presented the address then agreed to. to which the president of the united states was pleased to make the following reply: gentlemen: with real pleasure i receive your address, recognizing the prosperous situation of our public affairs, and giving assurances of your careful attention to the objects demanding legislative consideration; and that, with a true zeal for the public welfare, you will cheerfully co-operate in every measure which shall appear to you best calculated to promote the same. but i derive peculiar satisfaction from your concurrence with me in the expressions of gratitude to almighty god, which a review of the auspicious circumstances that distinguish our happy country have excited; and i trust the sincerity of our acknowledgments will be evinced by a union of efforts to establish and preserve its peace, freedom, and prosperity. g. washington. the senate returned to their own chamber, and soon after adjourned. monday, december . john rutherford, from new jersey, attended. tuesday, december . aaron burr, from new york, and john vining, from delaware, severally attended. wednesday, december . william bradford, from rhode island, attended. friday, december . george walton, appointed a senator of the united states by the executive of the state of georgia, in place of james jackson, resigned, produced his credentials, and, the oath required by law being administered, he took his seat in the senate. monday, january . the following message was received from the president of the united states, by mr. dandridge, his secretary. captain sedam, of the first sub-legion, bearing the colors mentioned in the message: _gentlemen of the senate, and of the house of representatives:_ a letter from the minister plenipotentiary of the french republic, received on the d of the last month, covered an address, dated the st of october, , from the committee of public safety to the representatives of the united states in congress; and also informed me that he was instructed by the committee to present to the united states the colors of france. i therefore proposed to receive them last friday, the first day of the new year, a day of general joy and congratulation. on that day the minister of the french republic delivered the colors with an address, to which i returned an answer. by the latter, the senate will see that i have informed the minister that the colors will be deposited with the archives of the united states. but it seemed to me proper previously to exhibit to the two houses of congress these evidences of the continued friendship of the french republic, together with the sentiments expressed by me on the occasion in behalf of the united states. they are herewith communicated. g. washington united states, _january_ , . the message and papers were read; after which the colors were withdrawn, and the message and papers ordered to lie for consideration. tuesday, january . _presentation of french flag._ a motion was made by mr. tazewell, seconded by mr. langdon, that it be-- "_resolved by the senate of the united states in congress assembled_, that the president be informed the senate have received, with the purest pleasure, the evidences of the continued friendship of the french republic, which accompanied his message of yesterday. "that he be requested to assure that magnanimous nation, through the proper organ, that the senate unite with him in all the feelings expressed to the minister of france, on the presentation of the colors of his nation, and devoutly wish that this symbol of the triumphs and enfranchisement of that great people, given as a pledge of faithful friendship, and placed among the evidences and memorials of the freedom and independence of the united states, may contribute to cherish and perpetuate the sincere affection by which the two republics are so happily united." mr. ellsworth moved that these resolutions should lie on the table until to-morrow, that members should have an opportunity of perusing attentively the papers accompanying the message of the president. mr. butler said, that he should very reluctantly, in general cases, oppose a motion of the kind now made; but, on the present occasion, he could not give it his assent. if the resolutions were intricate, or by the question the judgment of the senate could be committed, he should accord in the wish expressed by the mover; but, as the resolutions go merely to an expression of the sentiments of the house respecting the french republic, their feelings and judgment must be as ripe for such expression now as they can be at any future period. it was not like a law that was to affect the senate hereafter; it had nothing to do with the internal situation of the country or municipal regulations; but they only went to express a sympathetic feeling for the french republic, and a wish to see them enjoy every happiness under the form of government they have lately chosen. this cannot commit the senate, he conceived. if the motion for postponement prevailed, it might convey a distrust of the sense of the senate respecting that republic. he felt a lively sense towards that nation on account of the glorious cause in which they had embarked; of their gallantry and spirit in their arduous struggle to place men upon a footing they were entitled to, raising them from a state of the most abject and debasing slavery. he declared himself always ready to express his feelings on the magnanimity of such a people. if other members of the senate possessed not those feelings, they could now give the resolutions their negative. he did not wish for a postponement, as it might be viewed as in a manner slighting the republic. mr. ellsworth believed there was no real difference of opinion on the subject. all felt an ardent friendship for the french; but one mode of expressing it might be more proper than another. besides, it might be a doubt whether an expression of the feelings of the senate on this occasion was necessary--the representatives had already spoken. he was not, as the member who spoke before him, ready on all occasions to express his sentiments; but only on fit occasions, and then he wished to do it in the most proper manner. the operations of his mind, he confessed, were slow. he wished more time for the perusal of the documents laid before the senate by the president. mr. livermore was also in favor of postponement. mr. langdon observed, that since members did so earnestly require time, he should not urge an immediate decision; he should no longer object to a postponement till to-morrow. he was happy to hear gentlemen say there was no difference of sentiment upon the present occasion; he hoped that, upon subjects relative to france, this might always be the case, and that the senate would not confine itself to empty professions of attachment, but would evince it by substantial deeds. mr. tazewell did not wish to press the business to an immediate decision, since members desired time. he confessed he did not expect a motion for a postponement would be made, as the resolutions he offered contained nothing more than the president had expressed on the occasion. however, if it was wished that the senate should express their sentiments in still stronger language than the president, he should not object. the opposition to the motion for postponement being withdrawn, it was agreed to. wednesday, january . the senate resumed the consideration of the motion made yesterday on the message of the president of the united states, of the th instant, and the presentation of the flag of the french republic; and, on motion of mr. cabot, seconded by mr. ellsworth, to expunge these words from the second paragraph of the motion: "that he be requested to assure that magnanimous nation, through the proper organ"-- mr. strong was in favor of striking out. he observed that the communication made to the senate by the president consisted of two distinct parts, the letter from the french committee of safety and the address accompanying the flag. in the letter not one word was said about the flag; it was written in october, ' , and there was probably then no idea of sending one. the letter and the flag only happened to be delivered at the same time; there was no other connection between them. the letter, he said, was in answer to one from this country, and was meant to close a complimentary correspondence. it required no answer; it would puzzle any one to make an answer to it. an attempt was made by the resolution offered, which proved it impossible to answer it. the resolution forsook the contents of the letter, which, he repeated, closed the correspondence. the united states had presented to the national convention our flag; or rather our minister (and he was unwilling to question the propriety of his so doing) presented it on behalf of this government; a french flag was sent in return; then the propriety of an answer on this ground became the sole question. this flag had been delivered to the president, who made an answer on the presentation of it--a complete and perfect answer. he communicated his answer to the senate. then was it proper, he asked, that the executive should be requested to make a second answer, and nearly in the same words? the president, in his answer, expressly says, that he speaks not only his own sentiments, but those of the citizens at large, including, no doubt, the senate. in this situation of the transaction nothing can be proper to be done by the senate but to express their opinion of the propriety of his answer; and this would be accomplished by adopting the substance of the resolution, after striking out the words proposed. there could be (he concluded by observing) no difference of feeling in the senate on the occasion. the only difference was in the mode of expressing it, and he inclined, for the reasons given, to that which was the object of the motion for striking out. mr. ellsworth was also of opinion that the subject divided itself into two distinct parts. the first object was an expression of the pleasure of the senate at this new evidence of the friendship of france, and joining with the president in all the feelings he had expressed on the occasion. this would be effectually done by entering on the journals the resolution as proposed to be amended. the president received the flag and answered, then communicated the transaction to the senate. it appeared, by the papers communicated, he contended, that there was no connection between the letter of the committee of public safety and the flag. he would not say that both were not very important transactions, but they were disconnected. the letter was written much antecedent to the sending of the flag--it was written in ' , and was intended to close a correspondence. the correspondence began by an address from the convention, while robespierre was an active member of it. this address was to congress: the president transmitted it to each house, and they sent it back to the executive, requesting he would answer it, with expressions of the friendly dispositions of the united states towards france. the resolutions of the houses and the letter of the executive were transmitted through mr. monroe. the letter now in the view of the senate is an answer to that, and closes the complimentary correspondence, if it ever can close. propriety did not require another word from the senate; indeed, decency did not admit it, for it could not be contended that the correspondence should be kept up _ad infinitum_. as to the flag, how can it require an answer from the senate? it was not presented to them by the french minister, but to the president, who had answered, not only for himself, but for the citizens of the united states; and he imagined it would not be contended that the members of the senate were not citizens. it is not advanced, he said, that the president did not express the sentiments of the senate in the answer to the minister; on the contrary, his words are borrowed in this resolution. but it is wished he should answer again in the same strain, and this was, in his opinion, neither necessary nor even proper. mr. ellsworth next combated the resolution as originally offered as unconstitutional. nothing, he contended, could be found in the constitution to authorize either branch of the legislature to keep up any kind of correspondence with a foreign nation. to congress were given the powers of legislation and the right of declaring war. if authority beyond this is assumed, however trifling the encroachment at first, where will it stop? it might be said, that this was a mere matter of ceremony and form, and, therefore, could do no harm. a correspondence with foreign nations was a business of difficulty and delicacy--the peace and tranquillity of a country may hinge on it. shall the senate, because they may think it in one case trifling, or conceive the power ought to be placed in them, assume it? if it was not specially delegated by the constitution, the senate might, perhaps, but it is positively placed in the hands of the executive. the people who sent us here, (said mr. e.) placed their confidence in the president in matters of this nature, and it does not belong to the senate to assume it. so forcibly, he said, were both houses impressed with the impropriety of the legislature corresponding with any foreign power, that, when it was announced to them that the unfortunate louis xvi. had accepted the constitution of ' , the communication was sent back to the president, with a request that he would answer it on their behalf, with congratulations and best wishes. but even this, he considered, they had not strictly a right to do. it was only saving appearances. neither branch had a right to dictate to the president what he should answer. the constitution left the whole business in his breast. it was wrong to place him in the dilemma of disobliging the legislature or sacrificing his own discretion. but if such practices had inadvertently been followed, it was full time to secede from them. he recapitulated, in a few words, and concluded, by observing, that should the motion for striking out prevail, members would still be in order to amend the resolution, if they chose, by adding to the warmth of expression it already contained. mr. butler considered the situation into which the member up before him seemed desirous that the senate should be placed, as highly degrading; they were to be deprived of the right of expressing their own sentiments, they were to have no voice, no will, no opinion of their own, but such as it would please the executive to express for them. the only fault he found in the resolve was, that it was not full and expressive enough. he observed, that it appeared the studied desire of one part of the house to cut off all communication between the people of the united states and the people of the french republic. their representatives are now told, that they can have no will, no voice, but through the executive. their constituents never intended that they should be placed in this ridiculous point of view, and he declared he never could sit under it silently. he turned to the journals of the senate to show that in the proceedings in the case of the answer to the communication from robespierre and others, there was a considerable division in the senate, and the mode adopted was by a majority only; but did not meet the sense of the senate very generally. upon the presentation of the flag to the president, the minister particularly observes, that it is for the people of the united states. the president in his answer, speaks of himself and his own feelings. he read part of his answer--"born in a land of liberty," &c. he does intimate, he observed, in a cursory manner, that he trusts he speaks the sentiments of his fellow-citizens: but does not attempt to make any professions of either branch of the legislature, thinking, no doubt, that when the subject came before them, they would speak for themselves. suppose, he asked, that the expression of friendship contained in the president's address on the occasion, fell short of the feelings of the senate, would they, he asked, adopt the expressions for their own? for his own part, he declared, he could not leave it to others to speak his sentiments, but chose to reserve that right to himself. even if no communication had been received from the french republic, no token of attachment, the present period in their affairs, the establishment of a new government, would warrant an address of congratulation. there could be no impropriety in it, unless there were objections to drawing nigher to the republic. besides, the address of the committee of safety was certainly intended for the legislature, being directed to the representatives, unless it could be denied that the senate were representatives of the people of the united states. there was nothing in the constitution, he contended, that could prevent the legislature from expressing their sentiments: it was not an executive act, but a mere complimentary answer to a complimentary presentation. if this right was denied them, where would the principle stop? the senate might be made in time mere automata. it was as proper, he contended, for the senate to express an opinion on the occasion as for the president or the house of representatives. he concluded by observing, that the resolution as offered, said as little as could be said on the occasion, and he never could consent to the striking out, which would cause it to be entered only on the journal, and would be an indirect slight of the french republic, as the sentiments of the senate would not be communicated to them. mr. tazewell was happy to find no difference in the senate as to the substance of the resolution. as the form, however, had been made matter of debate, some importance had been given to it which its intrinsic consequence perhaps did not deserve, and it became the senate to weigh well their decision. it certainly, he said, could not be unknown to the senate, that unfavorable impressions have travelled abroad respecting their feelings and sentiments towards the french, and he suggested to their consideration whether if the present motion for striking out prevailed, even in the face of their own precedents, it would not give countenance to the surmise. on a former occasion, he stated, a communication was made to the senate through the president, informing that the king of france had accepted the crown under the constitution of . the senate were not content on that occasion with barely approving what the president had done, but requested the president to say in their behalf, that they were happy at the event, and to assure the king of their good will for the prosperity of the french nation and his own. what difference, he asked, was there on that occasion and the present, when the french just adopted and organized a new government? will it not be said, he asked, that the robes of royalty have charms with the senate, which the humble habiliments of democracy do not possess in their eyes, if on the present occasion they should deviate from a precedent established before royalty was abolished? this would be naturally implied, and the senate, he conceived, should avoid the imputation. there was no necessity pleaded in favor of striking out; if the motion was not insisted on, it would remove impressions which it was useful should be removed, and which he trusted would be removed. he dwelt on the impropriety of the senate's rejecting a form of proceeding in this case, not only sanctioned by their own precedent, but by the practice of both the president and senate. why, especially, he asked, should they give rise to invidious comparisons between themselves and the other branch? he hoped the motion for striking out would not prevail. mr. ellsworth conceived there existed a material difference between the present case and that cited by the member last up. the communication was then to congress, now to the president, who had only given an account of the transaction to the senate. he added, however, that the line of conduct pursued by the senate on the former occasion did not meet his approbation; they expressed hopes which he never thought could be realized, and in the event it proved so; for before the sentiments of the senate could cross the atlantic, the unfortunate king and constitution were both over-thrown. this, he argued, should make the senate wary in their proceedings in analogous cases. upon the communication from robespierre, barrere, and others, the senate were more cautious, they said nothing about the constitution, but only requested the president to express in their behalf the sentiments of friendship, &c., which the senate entertained for france. the senate gave the president a short text on that occasion; and he wrote according to his own discretion, and perhaps expressed more than the senate would have said. if a short text was given, this objection occurred; if the senate amplified, then they dictated improperly to the president what he should write. the example of the house of representatives had been mentioned; he conceived it was no rule of proceeding for the senate. the fact was, that the resolve carried in that house was upon a very slight view indeed of the papers communicated. indeed, it would appear upon the face of it, that it was penned before the papers were read. this was, in his opinion, no example for imitation; the senate ought to proceed with their usual deliberation. it had been said that doubts had gone abroad, whether the senate were friendly to france. those doubts had been raised by writers among us, the same who also endeavor to convince the americans that the friendship of france towards them was not cordial. this must appear unfounded from the proceeding now the object of debate, and the former suspicion must be removed by an insertion of the substance of the resolution now before the senate on their journals. mr. tazewell said a few words to show that there was no difference between the case he had already cited, the proceeding of the senate, when they expressed their satisfaction at the manner in which the national convention had honored the memory of benjamin franklin, and the present case. mr. ross differed. in the former instances, the president made the original communications to the senate before he had answered them; now he has answered and only communicates an account of the transaction. mr. burr was against striking out. the national convention, he observed, might, when they received the answer to their first communication, have said, as is now said on the floor of the senate, that the correspondence there ended, and that it was not necessary to make us a reply; but they acted differently, and he hoped the senate would acknowledge the receipt of their pledge of friendship. indeed he said, he could not see that any great harm would arise in the two branches of the legislature interchanging even once a year a letter of friendship and good will with the republic. it was objected that the present resolution was no answer to the letter. a few lines would make it so, and they might easily be added. the omission did not prove, as had been asserted by one member, that it was impossible to answer it. that it was not impossible was testified by the proceedings of the other branch. he did not intend to slight the dignity of the senate, however, he said, by quoting the proceedings of the other house as a binding rule of proceeding for this; but their proceedings certainly proved the possibility of making an answer; and besides, there was full as much propriety in looking for precedents in their conduct, as in the proceedings of a british parliament. each, however, in their place might deserve weight, though not implicit reliance. he advocated the rights of the senate to answer for themselves, and the propriety of acknowledging the receipt of the colors, which were not sent to the executive exclusively. he concluded by citing the senate's own precedents in analogous cases, and he hoped that it would not be insisted that the practice of two or three successive years deserved to be laid to the charge of inadvertency. after a few words more from messrs. strong, burr, read, and butler, the yeas and nays were called upon striking out, which were taken and stood--yeas , nays , as follows: yeas.--messrs. bingham, bradford, cabot, ellsworth, foster, gunn, latimer, livermore, marshall, paine, read, ross, rutherford, strong, trumbull, and walton. nays.--messrs. bloodworth, brown, burr, butler, langdon, martin, robinson, and tazewell. whereupon it was _resolved_, unanimously, that the president be informed the senate have received, with the purest pleasure, the evidences of the continued friendship of the french republic, which accompanied his message of the th inst. that the senate unite with him in all the feelings expressed to the minister of france on the presentation of the colors of his nation, and devoutly wish that this symbol of the triumphs and enfranchisement of that great people, given as a pledge of faithful friendship, and placed among the evidences and memorials of the freedom and independence of the united states, may contribute to cherish and perpetuate the sincere affection by which the two republics are so happily united. _ordered_, that the secretary lay this resolution before the president of the united states. monday, may . on motion, that a paper purporting to be the appointment of william blount and william cocke, respectively, to seats in the senate, should be read, it was agreed that the motion be postponed until to-morrow. tuesday, may . _new state of tennessee._ the senate resumed the consideration of the report of the committee to whom was referred the message of the president of the united states, of the th of april last, respecting a new state south of the river ohio; together with the motion for amendment, made on the th; and on the question to agree to the proposed amendment, it passed in the negative. wednesday, may . _the proposed state of tennessee._ the senate resumed the consideration, in paragraphs, of the bill laying out into one state the territory ceded by the state of north carolina to the united states, and providing for an enumeration of the inhabitants thereof. a letter, signed william blount and william cocke, was read, stating that they have been duly and legally elected senators to represent the state of tennessee in the senate. on motion, "that mr. blount and mr. cocke, who claim to be senators of the united states, be received as spectators, and that chairs be provided for that purpose until the final decision of the senate shall be given on the bill proposing to admit the south-western territory into the union:" a motion was made to refer the consideration thereof to a committee; and it passed in the negative. on motion to agree to the original motion, it passed in the affirmative--yeas , nays , as follows: yeas.--messrs. bloodworth, brown, burr, butler, foster, henry, langdon, martin, potts, robinson, tattnall, and tazewell. nays.--messrs. bingham, bradford, gunn, latimer, livermore, marshall, read, ross, rutherford, strong, and trumbull. after debate, the further consideration of the bill last mentioned was postponed until to-morrow. a letter from rufus king was read, stating that he had accepted the appointment of minister plenipotentiary at the court of london, and resigning his seat in the senate. thursday, may . _new state of tennessee._ the bill laying out into one state the territory ceded by the state of north carolina to the united states, and providing for an enumeration of the inhabitants thereof, was read the third time. on motion, that the bill be amended, so that the state be called and known by the name of tennessee, it passed in the negative. and, after agreeing to sundry amendments, on motion, that the following be an additional section to the bill: "_and be it further enacted_, that if on the returns by the supervisor of the revenue for the district of tennessee, as directed by this act, it shall appear to the president of the united states that the territory by this act laid out, and formed into a state, doth contain sixty thousand free inhabitants, that then it shall be lawful for the president, by his proclamation, to declare the same; and that, in that event, and on their forming a constitution consistent with the ordinance of congress of the thirteenth day of july, one thousand seven hundred and eighty-seven, the said state, by the name and style of 'the state of tennessee,' shall be received and admitted into the union as a new and entire member of the united states of america. and, until an enumeration shall be made, under the authority of congress, for the purpose of apportioning representatives, the said state of tennessee shall be entitled to choose one representative:" a motion was made to amend this motion, by striking out the following words: "and on their forming a constitution consistent with the ordinance of congress of the thirteenth day of july, one thousand seven hundred and eighty-seven:" it passed in the negative--yeas , nays , as follows: yeas.--messrs. bloodworth, brown, burr, butler, henry, langdon, livermore, martin, robinson, tattnall, and tazewell. nays.--messrs. bingham, bradford, foster, gunn, latimer, marshall, potts, read, ross, rutherford, strong, and trumbull. and, on the question to agree to the motion without amendment, it passed in the negative--yeas , nays , as follows: yeas.--messrs. burr, foster, gunn, henry, latimer, livermore, martin, potts, tattnall, and trumbull. nays.--messrs. bingham, bloodworth, bradford, brown, langdon, marshall, read, robinson, ross, rutherford, strong, and tazewell. on the question, that the bill pass, it was determined in the affirmative--yeas , nays , as follows: yeas.--messrs. bingham, bradford, brown, foster, gunn, latimer, martin, potts, read, ross, rutherford, strong, tattnall, tazewell, and trumbull. nays.--messrs. bloodworth, burr, butler, henry, langdon, livermore, marshall, and robinson. so it was resolved, that this bill pass; that it be engrossed; and that the title thereof be "an act laying out into one state the territory ceded by the state of north carolina to the united states, and providing for an enumeration of the inhabitants thereof." tuesday, may . a message from the house of representatives informed the senate that the house have passed a bill, entitled "an act to alter the time of the next annual meeting of congress;" in which they desire the concurrence of the senate. they insist on their amendment, disagreed to by the senate, to the bill, entitled "an act laying out into one state the territory ceded by the state of north carolina to the united states, and providing for the enumeration of the inhabitants thereof;" ask a conference thereon, and have appointed managers at the same, on their part. they agree to all the amendments of the senate to the bill, entitled, "an act regulating the grants of land appropriated for military services, and for the society of united brethren, for propagating the gospel among the heathen;" except to the last, to which they disagree. _new state of tennessee._ the senate proceeded to consider the resolution of the house of representatives, desiring a conference on the bill, entitled, "an act laying out into one state the territory ceded by the state of north carolina to the united states, and providing for an enumeration of the inhabitants thereof." on motion, to postpone the further consideration thereof until the next session of congress, it passed in the negative--yeas , nays , as follows: yeas.--messrs. bingham, bradford, foster, latimer, potts, read, ross, rutherford, strong, and trumbull. nays.--messrs. bloodworth, brown, burr, butler, gunn, henry, langdon, livermore, marshall, martin, robinson, tattnall, and tazewell. _resolved_, that the senate agree to the proposed conference, and that messrs. burr and strong be managers at the same on their part. mr. burr, from the joint committee of conference on the bill, entitled "an act laying out into one state the territory ceded by the state of north carolina to the united states, and providing for an enumeration of the inhabitants thereof," reported, as the opinion of the majority of the joint committee, that the senate recede from their disagreement to the amendment of the house of representatives. whereupon, _resolved_, that the senate recede from their disagreement to the said amendment. a motion was made by mr. burr, as follows: "_resolved_, that any enumeration of the inhabitants of any district under the temporary government of the united states, for the purpose of furnishing evidence to congress that such district contains the number which may entitle it to admission into the union, shall have been taken and made, under a law to be made by the legislature of the said district, of the free inhabitants only, and, in all other respects, pursuant to the provisions contained in the act, entitled "an act providing for the enumeration of the inhabitants of the united states:"" which motion was read and ordered to lie until to-morrow for consideration. wednesday evening, o'clock, june . _new state of tennessee._ on motion, by mr. martin, that it be "_resolved_, that the honorable william blount, and william cocke, esquires, who have produced credentials of being duly elected senators for the state of tennessee, be admitted to take the oath necessary for their qualification, and their seats accordingly;" _ordered_, that a paper, purporting to be the credentials of mr. blount and mr. cocke, be read. and, on the question to agree to the resolution, it passed in the negative--yeas , nays , as follows: yeas.--messrs. bloodworth, brown, burr, butler, gunn, langdon, martin, robinson, tattnall, and tazewell. nays.--messrs. bingham, bradford, foster, latimer, livermore, marshall, potts, read, ross, rutherford, and trumbull. a message from the house of representatives informed the senate, that the house, having finished the business before them, are about to adjourn to the first monday in december next. mr. butler, from the joint committee appointed to wait on the president of the united states, and notify him that, unless he had any further communications to make to them, they were ready to adjourn, reported, that the president of the united states had no further communication to make, except the nomination of certain persons to execute the laws passed the present session. after the consideration of the executive business, the president adjourned the senate to the first monday in december next. fourth congress.--first session. proceedings and debates in the house of representatives. monday, december , . the following members appeared, and took their seats: _from new hampshire._--abiel foster, nicholas gilman, john s. sherburne, and jeremiah smith. _from massachusetts._--theophilus bradbury, henry dearborn, dwight foster, nathaniel freeman, jr., benjamin goodhue, george leonard, samuel lyman, william lyman, john read, theodore sedgwick, george thatcher, joseph b. varnum, and peleg wadsworth. _from rhode island._--benjamin bourne, and francis malbone. _from connecticut._--joshua coit, chauncey goodrich, roger griswold, zephaniah swift, and uriah tracy. _from vermont._--israel smith. _from new york._--theodorus bailey, william cooper, ezekiel gilbert, henry glenn, jonathan n. havens, edward livingston, john e. van allen, philip van cortlandt, and john williams. _from new jersey._--jonathan dayton, aaron kitchell, isaac smith, and mark thompson. _from pennsylvania._--david baird, albert gallatin, daniel heister, john wilkes kittera, samuel maclay, frederick augustus muhlenberg, samuel sitgreaves, john swanwick, and richard thomas. _from delaware._--john patten. _from maryland._--gabriel christie, george dent, gabriel duvall, william hindman, and william vans murray. _from virginia._--samuel j. cabell, john clopton, isaac coles, william b. giles, george hancock, carter b. harrison, john heath, george jackson, james madison, andrew moore, josiah parker, robert rutherford, and abraham venable. _from north carolina._--thomas blount, nathan bryan, dempsey burges, jesse franklin, william b. grove, james holland, matthew locke, nathaniel macon, and absalom tatom. _from south carolina._--samuel earle, robert goodloe harper, and william smith. _from georgia._--abraham baldwin. and a quorum, consisting of a majority of the whole number being present, the house proceeded by ballot, to the choice of a speaker; and, upon examining the ballots, a majority of the votes of the whole house was found in favor of jonathan dayton, one of the representatives for the state of new jersey. whereupon, the said jonathan dayton was conducted to the chair, from whence he made his acknowledgments to the house, as follows: gentlemen: it is with real diffidence that i undertake the execution of the duties which you have done me the honor to assign to me. in discharging them to the best of my abilities, i anticipate, on your part, a liberal and indulgent temper towards those decisions which may be required from the chair, and flatter myself that i shall experience, upon all occasions, your co-operation and support. the house proceeded, in the same manner, to the appointment of a clerk; and, upon examining the ballots, a majority of the votes of the whole house was found in favor of john beckley. the oath to support the constitution of the united states, as prescribed by the act, entitled "an act to regulate the time and manner of administering certain oaths," was then administered by isaac smith, one of the representatives from the state of new jersey, to the speaker, and then by mr. speaker to all the members present. the same oath, together with the oath of office prescribed by the said recited act, were also administered by mr. speaker to the clerk. a message was received from the senate, informing the house that a quorum of members of that body is assembled, and the vice president being absent, they have proceeded to the choice of a president _pro tempore_, and that henry tazewell has been duly elected. _ordered_, that a message be sent to the senate to inform that body that a quorum of this house is assembled, and have elected jonathan dayton their speaker; and that the clerk of this house do go with the message. another message from the senate was received, informing this house that they have appointed a committee on their part, to act jointly with such committee as may be appointed by this house, to wait on the president of the united states, to inform him that a quorum of the two houses is assembled, and ready to receive any communication he may think proper to make to them. _ordered_, that mr. madison, mr. sedgwick, and mr. sitgreaves, be appointed a committee on the part of this house, for the purpose expressed in the message of the senate. petitions from sundry persons, praying to be appointed to the offices of sergeant-at-arms and doorkeeper, were presented to the house and read: whereupon, the house proceeded, by ballot, to the choice of a sergeant-at-arms, doorkeeper, and assistant doorkeeper; and, upon examining the ballots, a majority of the votes of the whole house was found in favor of joseph wheaton, as sergeant-at-arms, thomas claxton, as doorkeeper, and thomas dunn, as assistant doorkeeper. _ordered_, that the said joseph wheaton, thomas claxton, and thomas dunn, do severally give their attendance accordingly. mr. madison, from the joint committee appointed to wait on the president of the united states, and notify him that a quorum of the two houses is assembled, and ready to receive any communication he may think proper to make to them, reported that the committee had, according to order, performed that service, and that the president signified to them that he would make a communication to both houses of congress to-morrow, at o'clock, in the representatives' chamber. tuesday, december . several other members, to wit: from maryland, samuel smith; from virginia, richard brent; and from georgia, john milledge, appeared, produced their credentials, and took their seats in the house; the oath to support the constitution of the united states being first administered to them by mr. speaker, according to law. _ordered_, that a message be sent to the senate to inform them that this house is now ready to attend them in receiving the communication from the president of the united states, agreeably to his notification to both houses yesterday; and that the clerk of this house do go with the said message. the clerk accordingly went with the said message; and, being returned, the senate attended and took seats in the house; when, both houses being assembled, the president of the united states came into the representatives' chamber, and delivered his speech to the two houses. [for a copy of this speech, see the proceedings of the senate.] the president of the united states then withdrew, and the two houses separated. _ordered_, that the speech of the president of the united states to both houses be committed to a committee of the whole house to-morrow. wednesday, december . james hillhouse, from connecticut, appeared, produced his credentials, was qualified, and took his seat. _address to the president._ the house, according to the order of the day, resolved itself into a committee of the whole on the speech of the president of the united states to both houses of congress, mr. muhlenberg in the chair; when, the speech being read, mr. vans murray moved the following resolution: "_resolved_, that it is the opinion of the committee, that a respectful address ought to be presented by the house of representatives to the president of the united states, in answer to his speech to both houses of congress, at the commencement of this session, containing assurances that this house will take into consideration the various and important matters recommended to their attention:" mr. sedgwick seconded the motion. mr. parker offered an amendment, which was seconded by mr. macon. the substance of this amendment was, to strike out all that part of the resolution which goes before the word _assurances_; in place of which, mr. parker proposed to appoint a committee, who should personally wait on the president, and assure him of the attention of the house, &c., and concluding as above. mr. p. had the highest respect for the president, but he had always disapproved of this practice of making out addresses in answer to these speeches, and of the house leaving their business to go in a body to present them. last session, the framing of this address had cost very long debates, and produced very great irritation. some of the most disagreeable things that happened during the session occurred in these debates. he wished unanimity and the despatch of business, and so, could not consent that any address should be drawn up, as he preferred ending the affair at once by sending a committee with a verbal answer. mr. murray replied, that the practice of drawing up such an address was coeval with the constitution. it was consistent with good sense; and he did not see that any argument had been employed by the gentleman who spoke last against it. it was true that the house might send a verbal answer, and it was likewise true that the president might have sent them his speech by his secretary, without coming near them at all. he had come to congress, and mr. m. could perceive no impropriety in congress returning the compliment by waiting on him. the committee divided on the amendment proposed by mr. parker. eighteen members rose in support of it: so it was lost. the committee then agreed to the resolution as offered by mr. murray. they rose, and the chairman reported progress. the resolution was agreed to by the house. the next question was, of how many members the select committee should consist that were to be employed in framing a draft of the address. the different numbers of five and three were proposed. a division took place on the former motion, when only thirty-one gentlemen rose in its favor. the motion for a committee of three members to report an address was of course carried. mr. madison, mr. sedgwick, and mr. sitgreaves, were appointed.[ ] it was then moved that two chaplains should be named, as usual; which was agreed to. thursday, december . francis preston, from virginia, appeared, was qualified, and took his seat. friday, december . several other members, to wit: from vermont, daniel buck; from new jersey, thomas henderson; from pennsylvania, william findlay; and from virginia, john nicholas, appeared, produced their credentials, were qualified, and took their seats. monday, december . two other members, to wit: from pennsylvania, thomas hartley, and from virginia, anthony new, appeared, produced their credentials, and took their seats. _address to the president._ mr. madison, from the select committee appointed to draft an address in answer to the speech of the president, made a report, which was read by the clerk. mr. giles moved that the usual number of copies of the address should be printed for the use of the members. tuesday, december . _address to the president._ the house then resolved itself into a committee of the whole, mr. muhlenberg in the chair, on the draft of an answer to the president's speech. the following sentence being under consideration: "contemplating that probably unequalled spectacle of national happiness, which our country exhibits, to the interesting summary which you, sir, have been pleased to make, in justice to our own feelings, permit us to add the benefits which are derived from your presiding in our councils, resulting as well from the undiminished confidence of your fellow-citizens, as from your zealous and successful labors in their service." mr. parker moved to strike out the words "probably unequalled," and from the word "councils," to the end. he owned that the united states owe much to the president for his services on most occasions; but he had sometimes erred as other men. he could not for his own part subscribe to the expressions contained in the words which he had moved to strike out; his confidence in the president was diminished in consequence of a late transaction. mr. sherburne called for a division of the question; that a question should first be put upon the words "probably unequalled," and afterwards upon striking out the latter part of the clause. the question was accordingly put upon the words "probably unequalled," and they were struck out, to . mr. murray rose to make a few observations on the motion for striking out from the word "councils." as a representative from maryland, he said, he could not on this occasion be contented to give a silent vote. the legislature of that state had not long since declared, that their confidence in the president remains undiminished; and though his single sentiment might be deemed unimportant when viewed in connection with the unanimous vote of his state, yet he was free to declare, that his confidence in the chief magistrate had experienced no diminution. the legislature of maryland, he observed, had foreseen that attempts would be made, and saw that unjustifiable attempts were actually making to diminish the confidence of the people in the president; they therefore resolved to give the sanction of their unanimous vote to his character, declaring that the president retained their confidence, and that he had merited it. though not bound by the opinion of the legislature of that state, he conceived it his duty not to give a silent vote on the present occasion. mr. giles had hoped that nothing would have been brought before the house calculated to disturb the harmony that ought to subsist, by involving the discussion of delicate points. he had as much zeal as any man for the preservation of the president's fame and reputation; but he could not go the length of the expressions in the clause objected to. he could not agree to it in its present shape, because the assertion in it does not correspond with the fact. after this remark, there could not, he conceived, be any inconsistency in voting against the word and still feeling a regard for the president. he hoped his fame and reputation might never receive a stain, but pass unimpaired to posterity. he should vote for striking out. mr. freeman wished the motion might be so modified as to involve the striking out of the word "undiminished" only. though he for himself, he observed, might say that his confidence in the president was undiminished, he could not utter the same sentiment in behalf of the people at large. in his opinion the confidence of a part (a very small one perhaps) of the people was diminished; though that of a majority might be unshaken. mr. harper said he had no difficulty in declaring, that his own confidence in the president was undiminished, but he could not go so far as to pledge himself that that of all the people was so. he never, he said, had been in the habit of worshiping the president. he considered him as a man, not infallible, but as a wise, honest, and faithful public servant, and he was prepared in all places and situations to declare this opinion; but he was not ready to pronounce concerning the opinion of the people of the united states. some time hence they may become unanimous in their confidence; but he could not say that it was not diminished. he was ready to declare for himself but not for others. if called upon to declare whether a majority, whether four-fifths of the people retained their confidence in the president, he could declare it as his opinion in the affirmative; but the clause as it stands includes the whole, and he declared as it stood could not command his vote. he concluded by expressing his intention, when it would be in order, to introduce a modification of the clause, so as to express the undiminished confidence of the house in the president. mr. parker, in coincidence with the wish of mr. freeman, agreed to confine his motion to striking out the word "undiminished." mr. sedgwick doubted whether, after a division of the question, and a question being taken on the first part, a modification of the second part would be in order. the chairman declared it in order. mr. sedgwick viewed the present motion as even more objectionable than the first; it went directly to a denial of undiminished confidence for the president on the part of the house and the public. there was a time, he said, when no man could have supposed that the period would have arrived, that in the popular branch of the government, the confidence of the people and their representatives in that man could have been questioned. having been on the committee that framed the answer, and maturely considered the subject in every part, he would mention some of the observations that occurred to his mind particularly in favor of the part now objected to. lest in the course of them his sensibility on this subject should betray him into some warmth of expression, he begged leave to premise that he wished to wound the feelings of no man. it was proper, he said, to inquire into facts on which the expression now objected to was grounded. is the confidence of the people in the services, and patriotism, and wisdom of the chief magistrate diminished? his experience led him to say no; then, in the existing circumstances, is it not right for the representatives to make the declaration to their constituents and the world? to suppose the people, who, at the present moment, enjoyed so many blessings under the president's administration, could feel their confidence in him impaired, would suppose a baseness of disposition unworthy of them and of the services he has rendered. who could review the glorious conduct of our chief during the conflict of the revolution, his unwearied labors for the public good, his bravery, moderation, and humanity; who could observe him in his happy retirement, covered with glory, and accompanied by the blessings of his country; then forsaking his retirement, putting at hazard the mighty mass of his reputation, and be insensible of his services? who could review the critical situation in which he preserved our peace and prosperity during a glorious administration of six years; who could review these things and not have his heart filled with gratitude and esteem? he expressed his belief, that, a late measure of the executive was less the object of the dislike of some, than affording the opportunity for the vent of passions and feelings deep-rooted before. as to the sense of the people of the president, he believed it unaltered, as to his immediate constituents, he was sure it was; and if so, it was the duty of the house to make the declaration to the world--a duty the house owed to themselves and their constituents, and the more binding from the nature of the government the people had chosen. though the president had twice been called to the presidency by the unanimous and unsolicited voice of his fellow-citizens; though in obedience to that voice he had made a sacrifice no other man would have made; though the only reward he has received for his services has been the approbation of his country, yet, nevertheless, licentious presses had lately teemed with infamous and scandalous abuse of him. is this, he asked, consonant to the feelings of the house, and shall they not attempt to counteract its effects in the only constitutional manner? shall they not declare their own and their constituents' confidence undiminished in that officer of the government? he has told the legislature that he wishes to co-operate, to preserve unimpaired the blessings we enjoy. does the house believe this? then is it wrong to express their confidence? he believed, he said, that the efforts made to destroy the character of this first of men, instead of producing the mischief intended, would effect the contrary; and he also expressed his belief that the tide of his popularity at the present moment flowed with unusual strength. it has been intimated, he observed, that sanctioning the vote of confidence, contemplated in the clause of the address under consideration, would implicate an approbation of a late measure of the executive, and would preclude the possibility of a free opinion when that measure might come under the consideration of the house. he declared, upon his honor, that he had no intention that the vote now contemplated should have that effect. he did not conceive, that the vote of undiminished confidence, which he now pressed, involved an approbation of all the measures of the executive; it did not exclude the idea of fallibility; for what man is infallible? it is only implied, according to his conception, an approbation of the general tenor of the conduct of the executive. when the house express their confidence in a public officer, they cannot mean that they believe him infallible, but only that his character, grounded on his general conduct, receives their approbation. if, when the chief magistrate is attacked in the manner the president has been attacked, he is left to be overwhelmed with unmerited abuse; what man with talents to be useful, a reputation to be injured, or feelings to be wounded--what man will hazard all to serve an ungrateful country? it will render the station of chief magistrate sought only by mercenaries. if confidence is denied to the executive, it will only create vacancies in the high offices of government to be filled by those harpies who prey upon the vitals of the state. another consideration, he said, should have an influence on this occasion. the fame of the chief magistrate's character has filled the whole world; the americans are particularly distinguished as a people for their uniform attachment towards him. if, at this time of day, they indirectly declare their want of confidence in that man, they will justify the malignant predictions which have been uttered against our system of government. these considerations, he said, had weighed on his mind. if the motion for striking out prevailed, he declared it would distress him beyond any circumstance that had occurred to him during his public life, especially at this period, and under the present circumstances of affairs. he should consider the prevalence of this motion as tantamount to a declaration, that the house and their constituents did not feel their confidence in the president unimpaired. mr. livingston lamented the situation which the drafted address reduced the house to; but he could not give his assent to it as it stood; he should vote for striking out the word "undiminished," if a question on it should be urged. he did not conceive himself called to a seat in the house to express opinions, much less the opinions of others, but to make laws. he felt so much the delicacy of the situation which the wording of the address had placed the house in, that he wished the dilemma of a vote might be avoided. the gentleman last up also lamented the situation, and justly observed, that striking out the word was tantamount to a declaration that the confidence reposed in the president was diminished. but he begged to remind him that it was the framers of the address, and he was one of them, that involved the house in this disagreeable situation. he declared himself so young in the parliamentary proceedings, as not exactly to know how to avoid a question on the present motion. he declared he was not prepared to say what the opinion of his constituents concerning the president was. the confidence of many of them he knew was shaken; that of others was increased. he moved, if in order, that the committee should rise, and the address be recommitted. this was carried, and messrs. freeman and baldwin added to the committee. adjourned. wednesday, december . thomas claiborne, from virginia, appeared, produced his credentials, was qualified, and took his seat. _address to the president._ mr. madison, from the committee to whom had been recommitted the draft of the address in answer to the president's speech, brought in a report. the clause now added consisted of a modification of the clause objected to yesterday. on motion, the house went into a committee of the whole, mr. muhlenberg in the chair. the amendment was unanimously agreed to. mr. giles then moved an amendment in the third line of the last paragraph. it was thus: for "the several interesting subjects which you recommended to our consideration will receive every degree of _it_," read of _attention_. the committee then rose, and the house agreed to the report. it was then moved and agreed to, that the speaker, attended by the house, do present the address, as amended, to the president, and that a committee should be appointed to wait on the president, to know where and when he will be ready to receive the address of the house. the same gentlemen, viz: mr. madison, mr. sedgwick, and mr. sitgreaves, who had been first appointed to draft the address, were named for waiting on the president. the committee that had been appointed to wait on the president, returned with notice that he would be ready to receive their address, at his own house to-morrow at o'clock. the house then adjourned. thursday, december . wade hampton, from south carolina, and john hathorn, from new york, appeared, produced their credentials, were qualified, and took their seats. _address to the president._ at twelve o'clock, the speaker, attended by the house, waited upon the president of the united states, and delivered to him the following address, in answer to his speech to both houses at the opening of the session: sir: as the representatives of the people of the united states, we cannot but participate in the strongest sensibility to every blessing which they enjoy, and cheerfully join with you in profound gratitude to the author of all good for the numerous and extraordinary blessings which he has conferred on our favored country. a final and formal termination of the distressing war which has ravaged our north-western frontier, will be an event which must afford satisfaction proportioned to the anxiety with which it has long been sought; and in the adjustment of the terms, we perceive the true policy of making them satisfactory to the indians as well as to the united states, as the best basis of a durable tranquillity. the disposition of such of the southern tribes as had also heretofore annoyed our frontier, is another prospect in our situation so important to the interest and happiness of the united states, that it is much to be lamented that any clouds should be thrown over it, more especially by excesses on the part of our own citizens. while our population is advancing with a celerity which exceeds the most sanguine calculations--while every part of the united states displays indications of rapid and various improvement--while we are in the enjoyment of protection and security, by mild and wholesome laws, administered by governments founded on the genuine principles of rational liberty, a secure foundation will be laid for accelerating, maturing, and establishing the prosperity of our country, if by treaty and amicable negotiation, all those causes of external discord which heretofore menaced our tranquillity shall be extinguished, on terms compatible with our national rights and honor, with our constitution and great commercial interests. among the various circumstances in our internal situation, none can be viewed with more satisfaction and exultation, than that the late scene of disorder and insurrection has been completely restored to the enjoyment of order and repose. such a triumph of reason and of law is worthy of the free government under which it happened, and was justly to be hoped from the enlightened and patriotic spirit which pervades and actuates the people of the united states. in contemplating that spectacle of national happiness which our country exhibits, and of which you, sir, have been pleased to make an interesting summary, permit us to acknowledge and declare the very great share which your zealous and faithful services have contributed to it, and to express the affectionate attachment which we feel for your character. the several interesting subjects which you recommend to our consideration, will receive every degree of attention which is due to them. and whilst we feel the obligation of temperance and mutual indulgence in all our discussions, we trust and pray that the result to the happiness and welfare of our country may correspond with the pure affection we bear to it. to the foregoing address, the president was pleased to make the following reply: gentlemen: coming as you do from all parts of the united states, i receive great satisfaction from the concurrence of your testimony in the justness of the interesting summary of our national happiness, which, as the result of my inquiries, i presented to your view. the sentiments we have mutually expressed of profound gratitude to the source of these numerous blessings--the author of all good--are pledges of our obligations to unite our sincere and zealous endeavors, as the instruments of divine providence, to preserve and perpetuate them. accept, gentlemen, my thanks for your declaration, that to my agency you ascribe the enjoyment of a great share of these benefits. so far as my services contribute to the happiness of my country, the acknowledgment of my fellow-citizens, and their affectionate attachment, will ever prove an abundant reward. g. washington. tuesday, december . nathaniel smith, from connecticut, appeared, was qualified, and took his seat in the house. thursday, december . christopher greenup, from kentucky, appeared, was qualified, and took his seat. monday, december . andrew gregg, from pennsylvania, appeared, produced his credentials, was qualified, and took his seat. _robert randall--case of bribery._ mr. smith, of south carolina, requested the attention of the house, for a moment, to a subject of a very delicate nature. he understood that a memorial was, this morning, to be presented from some individuals, applying for a grant of a large tract of western territory, and as the house had referred all such applications to the committee for bringing in the land office bill, of which he was chairman; and, as it was probable that the memorial, about to be presented, would be disposed of in the same manner, he conceived it a duty incumbent upon him to disclose to the house, at this time, some circumstances which had come to his knowledge. mr. smith then said that, on tuesday evening last, a person of the name of randall called on him, requesting an hour of confidential conversation. in the interview which took place, randall made a communication to the following effect: he intended to present a memorial, on the monday following, to congress, for a grant of all the western lands lying between lakes michigan, erie, and huron, to the amount of about twenty millions of acres. he, and his associates, some of whom were canada merchants, who had great influence over the indians, proposed to form a company, and to undertake the extinction of the indian title, provided congress would cede to them the fee-simple of the land. the property would be divided into forty shares, twenty-four of which should be reserved for such members of congress as might favor the scheme, and might be inclined to come into it, after the adjournment of congress, on the same terms as the original associates. randall himself had the disposal of twelve shares, for members from the southern states, and a colleague of his, a like number for those of the eastern states. a certain number of shares were to be the property of those canada merchants, who had an unbounded influence over the indians occupying those lands, and who would, if this plan succeeded, pacify those indians, who were the most hostile to the united states; that gen. wayne's treaty was a mere delusion, and that, without the co-operation of those influential persons, the united states would never have peace in that quarter. mr. smith said that he communicated this overture, the next morning, to mr. murray, one of the members from maryland, requesting his advice how to proceed on so delicate an occasion; that mr. murray recommended a disclosure to mr. henry, of the senate, and that, on a consultation with those gentlemen, it was resolved that it was mr. smith's duty to make an immediate communication of the matter to the president, which was accordingly done. mr. murray rose next. he had received an application of the same nature, but having already heard of the proposal, "i was," said he, "in a state of preparation, and my virtue had not such a shock to encounter, as that of the gentleman last up." mr. m. corroborated what mr. smith had said as to the communication of this affair to himself. he added, that he had advised mr. smith to give randall another meeting, for the purpose of developing his schemes and expectations more fully. mr. m. said that mr. smith informed him on wednesday morning; next day, in the morning, he informed mr. henry, of the senate. mr. smith, on that day, informed the president. on that day (thursday,) mr. randall was introduced to him, and asked an interview at his lodging; he gave him an appointment, at five in the afternoon. mr. henry and he were together when randall came in. randall talked about the policy of extinguishing the indian title to the peninsula formed by lakes erie, huron, and michigan, containing about eighteen or twenty millions of acres of very good land; and talked in terms that he might have employed from a pulpit. he did not make any corrupt overtures, till mr. m. had carried him into his own apartment. there randall opened his proposals, as had been before mentioned by mr. smith, observing that if congress would sell this land to him and his company, they intended to divide it into forty or forty-one shares. twenty-four shares were to be appropriated to such members of congress as chose to support the memorial, which would be presented on monday. the members were to have their shares upon the same terms on which his company should obtain the land. the company would give five hundred thousand, or perhaps a million of dollars: but on mr. m.'s apparent acquiescence in his views, he said that the shares would be given to the members who advocated the measure, if they pleased to accept them, after they returned to their homes. mr. m. started a difficulty about the embarrassment of land speculations, for which he, personally, had no genius; and then randall instantly turned out the cat, and told him that if _he_ did not choose the share of land, he should have cash in hand for his share. mr. smith and mr. murray had resolved to disclose this to the house, lest some innocent member might offer a memorial and become liable to suspicion. randall had hinted that larger proportions would be assigned to the more active members, and lesser ones for the small fish. the speaker then rose, and expressed a wish that some gentleman would move for an order to apprehend randall. upon this, mr. smith again rose, and said that a warrant to this effect had yesterday been issued by the president, and to support which mr. s. had made oath before a magistrate to the particulars above mentioned. he hoped that by this time the person was taken. mr. giles next rose, and observed that an application from the same mr. randall had been made to himself. besides a repetition of some particulars already stated, he told mr. g. that he had already secured thirty or forty members of this house, but he wanted to secure three other members, if mr. g. recollected right. he added, that he had already secured a majority of the senate. when this proposal was first made, which mr. g. thought was about ten days ago, a member from new-york (mr. livingston) was present. randall had even gone so far as to say, that a written agreement was drawn out, and subscribed by a number of eastern members, and he wished mr. g. to extend another obligation of the same kind for the southern members; the purport of which paper was understood to be, that the members who voted in support of the disposal of the lands, were to be secured in a stipulated share of them, without having their names mentioned in the deed. mr. g. was solicitous to learn the names of the members who had already entered into the negotiation, but randall assured him, that, from motives of delicacy, he durst not communicate any of the names. mr. g. then desired a sight of the agreement, that he might be able to comprehend its meaning, before he should attempt to draw any similar paper. the man called a second time, and, as mr. g. conceived, about four days ago, but had never produced the deed or any draft of it. mr. g. had already communicated the proposal to several members, and, in particular, to the speaker. the speaker (mr. dayton) mentioned, that mr. giles had, some time ago, informed him of the proposal. he replied, that if an opportunity offered, he would take care to select a committee consisting of members sure to detect the guilty, if any such could exist; adding that he expected the house to believe that he would not have used such words, but on so extraordinary an occasion. mr. christie said, that he was the person who had introduced randall to mr. smith and mr. murray. he had long known him, as a respectable man. randall had mentioned to mr. c. in general, that it was a landed speculation, and hinted that he, mr. c., might accept of a share. in reply, mr. c. had assured him that he could not possibly have a concern in any such transaction. randall had not, to mr. c., insinuated that any undue advantage would accrue to members supporting the intended purchase. mr. buck, a member from vermont, mentioned that a person of the name of whitney, who appears to have been an associate with randall, had called upon him in the country with a proposal of this kind. mr. madison said, that the person referred to had also called upon him, and told him of his having waited upon many members, and, among the rest, upon the speaker. mr. madison said, that the conversation was rather short, owing, perhaps, to the coldness with which the advances of mr. randall were received. mr. madison had already learned, through his friend from virginia (mr. giles,) the state in which the business was. he did not wish to alarm the person by too much abruptness, and, at the same time, he did not wish to give himself any unnecessary trouble about it, as he understood that it would be properly managed without his interference. tuesday, december . _case of randall and whitney._ a return was made by mr. joseph wheaton, sergeant-at-arms to the house of representatives. mr. wheaton stated that, agreeably to the order from the speaker, he had taken into custody the bodies of robert randall and charles whitney, and kept them at the disposal of the house. mr. w. smith moved, that a committee of privileges, consisting of seven members, should be appointed, and instructed to consider and report with respect to the proper mode of proceeding in this case as to robert randall, and that the said committee shall have leave to sit immediately. it was likewise moved that the name of charles whitney should be comprehended in the resolution, because he also was taken into custody. the resolution, as amended, was agreed to. mr. baldwin, mr. w. smith, mr. murray, mr. coit, mr. giles, mr. livingston, and mr. goodhue, were named for a committee. randall was now brought in, by mr. wheaton, sergeant-at-arms, and the city marshal. that part of the journals which refers to his conduct was read to him. the speaker then interrogated the prisoner, whether these charges were true or false? randall replied that he was not prepared to answer. he hoped that time would be given him. the speaker asked what time he wanted? he could not positively tell; perhaps till the day after to-morrow. mr. w. smith was disposed to give him the time required. mr. blount said, that he felt for his own dignity as a member of the house, and for the dignity of the house. to suffer the prisoner to go away from the bar till he had said guilty, or not guilty, when thirty or forty members are positively charged with such conduct, and we suffer the culprit to withdraw, without obliging him to explain, will excite public suspicion that guilt is here. randall was then ordered to withdraw, till the discussion should be over. mr. rutherford was for making him say yes or no, directly, as to the guilt. if he wants to have time for pleading any thing in mitigation of his punishment, that is a quite different affair. but the honor of the house was concerned in making him give an immediate answer to the queries now put. mr. hillhouse was for bringing randall forward directly. he ought not to be allowed time to think of an answer. mr. harper felt as much as any man for the dignity of the house, but this would not induce him to proceed in a hurry. mr. h. enlarged on the danger of indulging passion on this subject. it would be wrong to force the prisoner to answer unprepared. what if he refuses to answer at all? confession amounts, in this case, to conviction. he was for granting indulgence. mr. venable felt as much as any man for the dignity of the house. at the same time, he felt himself above suspicion, and the house above it. he would not wish to trample on the rights of an individual. he saw no danger that could arise to the house from a short delay. he referred to what mr. harper had said about the hardship of making any man convict himself. mr. claiborne was also against hurrying the prisoner. he recommended that coolness and moderation should distinguish the proceedings of the house. the question was then put, whether the prisoner should be obliged to answer immediately. ayes , noes . it was then moved, by mr. w. smith, that he should be allowed till twelve o'clock, to-morrow. mr. blount proposed the yeas and nays on the latter question. a member observed that they should rather have been put on the one immediately preceding. the motion was supported only by four or five members. a fifth part of the house are requisite for calling the yeas and nays. mr. blount then laid on the table a long resolution. it was, in substance, that before randall was recommitted, he should be interrogated as to who were the thirty or forty members that had been gained to the scheme. mr. harper thought it extraordinary to bring a culprit before the house for contempt of it, and then encourage him to criminate members. he should ever protest against persons being brought to the bar for that purpose. he therefore moved to strike out from the resolution proposed by mr. blount, the words: "and if you did, who are the members whom you considered as so secured; and what were your reasons for thinking them so secured?" this was the last clause of an interrogatory which mr. blount proposed putting to randall. mr. blount declared that he had never meant bringing an accuser to the bar, or propounding a question that should bring forth an accusation. mr. harper replied. mr. blount then modified his resolution, by striking out the exceptionable words; to which mr. harper then agreed. mr. murray called upon gentlemen by their sensibility to personal dignity, and the character of the house, to arrest the motion. its tendency certainly was to place the honor of the house, or of a very great part of it, in the power of a man of whose profligacy of principle there could now be no doubt. will you, he observed, permit, nay, invite him, whom you arraign at the bar of this house, to be a public accuser? will you adopt a charge against him, which is in its nature an imputation that however lightly and wickedly made, will implicate perhaps innocent men? these men, to rescue their own reputations, will be obliged to risk their characters, on the weight of their veracity, by denying this man's charge in the face of a world but too prone to suspect. by this motion, randall's assertion to the gentleman from virginia, (mr. giles,) the only member who has mentioned it, is to be alleged against randall as an offence. that randall said to the gentleman that there were thirty or forty members secured, he had no doubt; but he believed the fact to be that randall was both deceived himself and attempted to deceive the gentleman. why, said mr. m., the fellow told me that those thirty members were secured. mr. m. had not thought proper to state that circumstance, because he did not so much consider it as a fact material to the detection of randall's guilt, as it was one which, if mentioned, might possibly afford to malice an opportunity of affixing a stigma to any thirty or forty names at which personal enmity might point. no public good could result from such a disclosure; for the assertion of such a man as randall could not, among men of honor, be deemed a sufficient ground of suspicion; and yet the malice of the world, or the rancor of personal enemies, might attach suspicion and infamy to almost the whole house, from the indefiniteness of the charge. when randall informed him, on thursday night, that there were thirty members who would support his measures, he had felt in the very conduct which he then was himself pursuing to detect randall, to arrest his scheme, a principle of candor towards others, which taught him that other gentlemen to whom randall had communicated his scheme confidentially, were probably determined as honestly as himself to crush the infamous plot against the honor of the house. he knew that he who would be wicked enough to attempt seduction, might be weak enough to use this intelligence artfully, for the purpose of leading him the more readily to accept terms of infamy; because the object was painted as easily attainable, and that randall might wish to diminish all qualms, by exhibiting a pretended group of accomplices whose company would at least diminish the appearance of singularity. i entertained, said mr. m., no suspicion of any man--i knew randall to be a corrupt man from his offers to myself--i therefore placed all his intelligence to the score of flimsy art: i knew that such a man was not to be fully believed, where his interest was to magnify his success. i drew favorable auspices with respect to the corps to which i belong, from another piece of intelligence of his, which was, that he communicated to some members, one of whom he had named, and whom i knew to be a man of honor, in what he called the _general way_. this general way was a display of the sounder part of his scheme merely, and not the corrupt; consisting in developing the advantages which would result to the union in the disposal of their lands, provided the harmony of the indians could be secured. in this view of his plan he gave the subject an attitude far from unimposing; and i conceived that, as in proportion to the numbers engaged confidentially he must know that the hazard of detection increased, he would not communicate the corrupt view as long as he found the more honest part of the policy might appear to strike any gentleman as a measure useful to his country; i therefore did not believe randall, in the sense he evidently intended; therefore, sir, i did not feel myself at liberty to mention the assertion which i conceived to be unavailing as a circumstance necessary to the example i wished to make, but which, if communicated, i thought might cast a stain, by the mystery that enveloped it, upon a body whose character ought to be held sacred to the confidence of the country. my duty was to bring randall's attempt to corrupt unequivocally into light, not by repeating all the arts which he excited to corrupt; nor by exhibiting them in a way that might wound the feelings of men of honor, who, if charged even personally by randall, would have no refuge from odium but in their characters and counter-assertion: this, though always conclusive with those who personally know them, is not a protection to minds of sensibility against the stings of calumny. the voice of fame is not composed from the voice of men of honor. mr. hillhouse was convinced that there was not a gentleman in the house, whose character rested on so slender a foundation, as to be affected by any thing that this man could say. he felt no anxiety for the reputation of the house, for he knew that it was not in the smallest danger. the resolution went merely to make randall confess that he had said so and so. it implied nothing to affect members. a man covered with infamy making such charges could not expect credit, or obtain it from any body. mr. hillhouse was, for these reasons, in favor of the resolution for interrogating randall. the resolution was now read, as follows: "_resolved_, that it be made a charge against the said robert randall, that he declared to a member of this house, that a number consisting of not less than thirty members of this house had engaged to support his memorial." randall was then brought to the bar. the resolution was read to him, and he was informed that he must answer it to-morrow, at o'clock. a motion for adjourning was then made. ayes, ; so it was lost. it was next moved and agreed, that whitney should be brought to the bar. the speaker then said, is this the prisoner? answered, yes. what is your name? charles whitney. what is your usual place of residence? vermont. what are you? i was bred to the farming business. do you know one robert randall? yes. the clerk will read to you the charge that has occasioned your being brought here. the charge, as stated in the journal of the house, was then read to the prisoner. he was next interrogated by the speaker, as follows: are you guilty, or not guilty? not guilty. are you ready to speak in your defence? i am ready to tell every thing. are you prepared to do so just now? yes. whitney then stated that he was connected with randall in a plan for the purchase of eighteen or twenty millions of acres of land, lying between the lakes erie, huron, and michigan. he had come to town on the design of presenting a petition to congress, but had no knowledge of any improper kind of applications. randall had several times called upon him at his lodgings, at the green tree, in north fourth street. he considered the scheme to be of probable advantage, and a handsome thing to the united states as well as to the prisoner himself, who repeatedly observed that he would not have engaged in it, but with a view partly to his own interest. he had wished to engage influential characters in the business. he was then asked what associates he had. he answered, colonel pepune and mr. jones, of the state of massachusetts; and mr. ebenezer allen, of vermont. he also, upon a query from the speaker, mentioned the name of another person, which was not distinctly heard. he was asked if the partners meant to divide the land into forty shares. he answered forty-one; but this was only in speculation. they had only a rough idea of the extent of the land, which was inhabited by the wyandots, and was of a very good soil. the land was to be divided among the proprietors. the prisoner knew, in general, from randall, that he called on mr. smith, and other members; but was not privy to, nor suspected any unbecoming overtures. he was then asked the names of the associates at detroit. he mentioned mr. erskine, mr. robertson, mr. innes, mr. pattison, and mr. erskine, junior. he said that some of them were indian traders, to a considerable extent. he had called at mr. buck's, of vermont, (a member of the house,) as he was riding by his house. he knew him to be a gentleman of character whose name would add credit to the business. he had told him that there were several other persons intending to be concerned, and that, if it was consistent with his situation as a member of congress, he would be glad to have him engaged, but at the same time carefully noticed that this proposal was conditionally made, and only if it was proper. he was asked what mr. erskine was. he is called judge erskine, but whether he is now a judge, or only was one in some other part of the country, at a former period, the prisoner cannot tell. you say that you came to philadelphia about a month ago. why were you so long in presenting your petition? he had a bad cold, and had been sick, and wanted to make a personal explanation to the members before bringing the affair before the house. have you got any new associates in this city? none. mr. livingston then proposed a question, whether any of the shares had been left unappropriated by your associates and you? answer: it was at his own option to dispose of shares as he pleased. he was asked if he could produce any written agreement between himself and his associates. he believed that he could, and that it would do him no harm to do so. it was at the green tree. but, as a matter of candor, he requested time to consider whether the production of it could hurt him or not. this ended the examination. mr. w. smith then made a motion, consisting of three points, that whitney should be ordered to re-appear at the bar, at twelve o'clock, to-morrow; that he should be ordered to produce the bond; and that, till to-morrow, he should be remanded to the custody of the city marshal. it was likewise recommended that, till to-morrow, the two prisoners be kept in separate apartments. mr. goodhue requested that whitney might be ordered to withdraw; which was done. he then related that the prisoner had made an application to him at different times. mr. goodhue told him that he knew very little of the western country; he had always lived on the sea-coast, and land jobbing was quite out of his line. whitney did not make any corrupt proposals to him. he believed that it was because he was very averse to wasting time in speaking at all on the matter. mr. sedgwick said that, as no direct charge of corruption had been made against whitney, he apprehended it would be improper to detain him as a prisoner. it might be considered as a wanton act of arbitrary power. mr. buck then rose, and said that he had not yesterday told the whole of what passed between him and whitney. mr. buck had received offers plain enough to be understood. he might either have land, or money in lieu of it. mr. sedgwick said, that he had now no opposition to the resolutions; which were carried. wednesday, december . john page, from virginia, appeared, was qualified, and took his seat. _case of randall and whitney._ mr. w. smith moved an amendment of the journal to this effect, that the said charles whitney had made overtures to mr. buck, to this purpose, that he should have a share in the lands to be purchased, or in money. mr. nicholas objected to the motion. the reading of the journal was called for. it was read. mr. sedgwick said, that the original charge against the man was complete and full. he thought the amendment unnecessary. a petition was then presented from randall requesting that he might be indulged with a reasonable time to make his defence, and with counsel. mr. w. smith was very ready to allow the prisoner counsel for his defence, but, in so doing, he wished it to be understood, not as a matter of right but of favor. he was apprehensive that gentlemen in proceeding from one step to another, would at last reason away the privileges of the house altogether. his friend from massachusetts (mr. sedgwick) had quoted the clause of the constitution which gave a right to have counsel in all trials for crimes; but it did not apply to this case, any more than the clause which immediately followed it, declaring that all trials for crimes should be by a jury of the vicinage, and after presentment by a grand jury. the present inquiry was of a special and peculiar nature, resulting from the rights and privileges which belonged to every legislative institution, and without which such institution could not exist. as every jurisdiction had certain powers necessary for its preservation, so the legislature possessed certain privileges incident to its nature, and essential for its very existence. this is called in england the parliamentary law; and as from that law are derived the usages and proceedings of the several state legislatures, so will the proceedings of this house be generally guided by the long-established usages of the state legislatures. there would be a manifest absurdity in conforming the proceedings in this case to the ordinary proceedings at law in jury trials, for the house, instead of being able to protect itself, would be altogether dependent on the other branches of the government, and in every case of aggression be obliged to send the offenders to the civil magistrate. if there was any weight in such reasoning as had been heard, then the house would have to tread back all the unconstitutional steps they had been taking, and to discharge, without delay, both the prisoners; for the arrest by the sergeant-at-arms, under the speaker's warrant, was only justifiable on the ground he had mentioned, namely, the inherent and indispensable power of self-preservation. that the house possessed power to arrest had not been denied; but the power of commitment was incident to that of arrest, and if it possessed both these high powers, it must of consequence possess the necessary incident of trial or inquiry, in regulating which the house was only to be governed by its own wisdom and discretion. on this occasion mr. s. said he felt, as he trusted every member did, a proper respect for the rights of individuals brought to the bar, as well as for those of the house, and he hoped that their conduct would be marked with discretion and temper; but, willing as he was to grant the prayer of the petitioner, he could not suffer the argument which had been relied on, to pass unanswered. this was the first instance, since the organization of this government, in which it had been found necessary to resort to this high prerogative; it was right, therefore, that the principles on which it was founded should be well understood, and that the privileges of the house should stand unimpaired. mr. sedgwick moved that the prayer of the petition should be granted, and that randall be allowed till to-morrow, to be heard at the bar. the petition was again read. mr. christie had known randall for many years, and had never heard of any thing against him before. he had lately been at detroit, and mr. c. believed that he had been injured by keeping bad company. he was not the first man in the country who had been corrupted by british influence and british company. he moved that randall should be allowed till to-morrow at twelve o'clock. this was negatived. the speaker then said, that, if agreeable to the house, he would send for randall, and inquire what time he wanted. this was done; randall came in, and asked till saturday, but as the house does not sit on saturday, friday was appointed. the bond or agreement between the intended purchasers of the land was then read. it was dated at detroit, the th of september last. allen, whitney, and randall, were to have the disposal of shares out of . thursday, december . richard winn, from south carolina, appeared, was qualified, and took his seat. _case of randall and whitney._ mr. baldwin, the chairman of the committee of privileges, reported, in part, on the subject of the further proceedings to be had in the case of r. randall and c. whitney, in substance as follows: . that a further hearing of r. randall should be held at the bar; that the information given by members against the said randall be reduced to writing, signed by the informants respectively, and entered at large on the journals; that the said information should be read to the prisoner, and he be asked by the speaker what he had to say in his defence. if the prisoner should desire to produce any parole evidence to exculpate himself, the same shall be heard at the bar, and the judge of the district of pennsylvania be requested to attend to administer an oath or affirmation to the witnesses on the part of the prisoner; that the speaker shall put all questions to the witnesses. when any debate should arise, that the prisoner and his counsel be directed to withdraw; and, when he has concluded his defence and withdrawn, that the sense of the house be taken on the guilt or innocence of the prisoners, respectively. mr. madison was of opinion that no citizen can be punished without the solemnity of an oath to the fact. of consequence, it is needful to the information of members, if the punishment of a fellow-citizen is implicated. perhaps it may be urged that members, having taken an oath to support the constitution, this supersedes the necessity of an oath in the present case. mr. gallatin thought it reasonable that members should be liable to be questioned upon oath. that there was no precedent for it, had little weight. there are many absurdities in the law of nations which gentlemen would not wish to introduce here. mr. swift was against the members being subject to this regulation. the case was quite novel to him. but this was, at first view, his way of thinking. suppose that some person in the gallery were to commit an insult on the house, before the whole members, would it be necessary that they should all swear to the offence before proceeding to punish it? this mr. s. regarded as a parallel case. mr. thatcher made a distinction when an offence had been committed in presence of the whole house, and when committed out of their view. in the former case, there could not be any use for evidence being sworn, because the whole house had the testimony of their senses. it was different when the circumstances occurred in another place; and mr. t. was convinced that the charge ought to be sworn to. the passage under amendment was in these words: "that it should be reduced to writing;" and the dispute was about adding the words, "and sworn to." mr. t., though for examining the members on oath as to the charge against randall, was opposed to the amendment as useless, because the members must, in his opinion, be sworn when randall is brought to the bar. the mere declaration of a prosecutor, not under oath, and of a defendant in the same situation, is equally exceptionable. a phrase had been repeatedly used which mr. t. did not understand. it was said that a member was entitled "to stand up in his place" and give information so and so. with the meaning of this expression mr. t. was unacquainted, nor did he know any law which authorized the imprisonment of a fellow-citizen on a mere charge unsupported by oath. he did not see the use of the amendment, but he was clearly satisfied that members ought to be examined and sworn touching their accusations, as well as any other persons. mr. nicholas was not, in this instance, for departing from the principles of common law. instead of supporting the dignity of the house, about which so much has been spoken, he was afraid that, by arrogating too much on the side of privilege, they might lessen their dignity. he declared, upon his honor, that he thought the gentlemen concerned should, for their own sakes, insist on being cross-examined by the prisoner and his counsel. to be cross-examined implies no reflection on a witness. the imperfection of human nature requires such a precaution, and were mr. n. a party, he would insist on being cross-examined. the proposed amendment would narrow the business too much. it would be better to lay it aside, and let the members be, as above proposed, subject to cross-examination from the prisoner. mr. madison said, that when randall came to the bar he would possibly save all this trouble, by confessing his guilt, and casting himself on the mercy of the house. he mentioned an anecdote of a judge who had been publicly insulted. he informed his brethren of the bench, and, on his complaint, the offender was apprehended. when he was brought before the court the oath was administered to the judge. mr. m. related this story to show the propriety of every accusation being sworn to, whatever may be the rank or situation of the accuser. monday, january . _presentation of the flag of france._ the speaker informed the house, that a message was ready to be delivered to the house, of a nature calculated to give the most pleasing satisfaction to every american breast. he suggested to the house, and the citizens in the galleries, the propriety of not suffering the fervor of enthusiasm to infringe on the dignity of the representative councils of the united states. he recommended that a respectful silence should be observed, as most compatible with the true dignity of the house, and the honor of the magnanimous republic that was the subject of the message. the president's secretary was then introduced, with an american officer bearing the standard of the french republic,[ ] sent by the committee of public safety, organ of the national convention, as a token of friendship to the united states. the secretary presented a message in writing from the president, with sundry papers accompanying it, to the speaker, by whom they were read as follows: _gentlemen of the senate, and of the house of representatives:_ a letter from the minister plenipotentiary of the french republic, received on the d of the last month, covered an address, dated the st of october, , from the committee of public safety to the representatives of the united states in congress; and also informed me that he was instructed by the committee to present to the united states the colors of france. i therefore proposed to receive them last friday, the first day of the new year, a day of general joy and congratulation. on that day the minister of the french republic delivered the colors, with an address, to which i returned an answer. by the latter, the house will see that i have informed the minister that the colors will be deposited with the archives of the united states. but it seemed to me proper previously to exhibit to the two houses of congress these evidences of the continued friendship of the french republic, together with the sentiments expressed by me on the occasion in behalf of the united states. they are herewith communicated. g. washington. united states, _january , _. [translation.] the representatives of the french people, composing the committee of public safety of the national convention, charged by the laws of the th fructidor, with the direction of foreign relations, to the representatives of the united states of america in congress assembled: _citizens representatives:_ the connections which nature, reciprocal events, and a happy concurrence of circumstances, have formed between two free nations, cannot but be indissoluble. you have strengthened those sacred ties by the declarations, which the minister plenipotentiary of the united states has made, in your name, to the national convention, and to the french people. they have been received with rapture by a nation who know how to appreciate every testimony which the united states have given to them of their affection. the colors of both nations, united in the centre of the national convention, will be an everlasting evidence of the part which the united states have taken in the success of the french republic. you were the first defenders of the rights of man in another hemisphere. strengthened by your example, and endowed with an invincible energy, the french people have vanquished that tyranny, which, during so many centuries of ignorance, superstition, and baseness, had enchained a generous nation. soon did the people of the united states perceive that every victory of ours strengthened their independence and happiness. they were deeply affected at our momentary misfortunes, occasioned by treasons purchased by english gold. they have celebrated with rapture the successes of our brave armies. none of these sympathetic emotions have escaped the sensibility of the french nation. they have all served to cement the most intimate and solid union that has ever existed between two nations. the citizen adet, who will reside near your government in quality of minister plenipotentiary of the french republic, is specially instructed to tighten these bands of fraternity and mutual benevolence. we hope that he may fulfil this principal object of his mission, by a conduct worthy of the confidence of both nations, and of the reputation which his patriotism and virtues have acquired him. an analogy of political principles; the natural relations of commerce and industry; the efforts and immense sacrifices of both nations in the defence of liberty and equality; the blood which they have spilled together; their avowed hatred for despots; the moderation of their political views; the disinterestedness of their councils; and especially, the success of the vows which they have made in presence of the supreme being, to be free or die; all combine to render indestructible the connections which they have formed. doubt it not, citizens, we shall finally destroy the combination of tyrants. you, by the picture of prosperity, which, in your vast countries, has succeeded to a bloody struggle of eight years; we, by the enthusiasm which glows in the breast of every frenchman. astonished nations, too long the dupes of perfidious kings, nobles, and priests, will eventually recover their rights, and the human race will owe to the american and french nations their regeneration and a lasting peace. paris, th vindemaire, d year of the french republic, one and indivisible. the members of the committee of public safety. j. s. b. delmas, merlin (of douai) &c. october , . * * * * * [translation.] _mr. president:_ i come to acquit myself of a duty very dear to my heart; i come to deposit in your hands and in the midst of a people justly renowned for their courage and their love of liberty, the symbol of the triumphs and of the enfranchisement of my nation. when she broke her chains; when she proclaimed the imprescriptible rights of man; when, in a terrible war, she sealed with her blood the covenant she had made with liberty, her own happiness was not alone the object of her glorious efforts; her views extended also to all free people. she saw their interests blended with her own, and doubly rejoiced in her victories, which, in assuring to her the enjoyment of her rights, became to them new guarantees of their independence. these sentiments which animated the french nation from the dawn of their revolution, have acquired new strength since the foundation of the republic. france, at that time, by the form of its government, assimilated to, or rather identified with, free people, saw in them only friends and brothers. long accustomed to regard the american people as her most faithful allies, she has sought to draw closer the ties already formed in the fields of america, under the auspices of victory, over the ruins of tyranny. the national convention, the organ of the will of the french nation, have more than once expressed their sentiments to the american people; but above all, these burst forth on that august day, when the minister of the united states presented to the national representation the colors of his country. desiring never to lose recollections as dear to frenchmen as they must be to americans, the convention ordered that these colors should be placed in the hall of their sittings. they had experienced sensations too agreeable not to cause them to be partaken of by their allies, and decreed that, to them, the national colors should be presented. mr. president, i do not doubt their expectations will be fulfilled; and i am convinced that every citizen will receive, with a pleasing emotion, this flag, elsewhere the terror of the enemies of liberty, here the certain pledge of faithful friendship; especially when they recollect that it guides to combat, men who have shared their toils, and who were prepared for liberty by aiding them to acquire their own. p. a. adet. * * * * * the answer of the president of the united states to the address of the minister plenipotentiary of the french republic, on his presenting the colors of france to the united states: born, sir, in a land of liberty; having early learned its value; having engaged in a perilous conflict to defend it; having, in a word, devoted the best years of my life to secure its permanent establishment in my own country; my anxious recollections, my sympathetic feelings, and my best wishes, are irresistibly excited, whensoever, in any country, i see an oppressed nation unfurl the banner of freedom. but, above all, the events of the french revolution have produced the deepest solicitude, as well as the highest admiration. to call your nation brave, were to pronounce but common praise. wonderful people! ages to come will read with astonishment the history of your brilliant exploits! i rejoice that the period of your toils and of your immense sacrifices is approaching. i rejoice that the interesting revolutionary movements of so many years have issued in the formation of a constitution designed to give permanency to the great object for which you have contended. i rejoice that liberty, which you have so long embraced with enthusiasm; liberty, of which you have been the invincible defenders, now finds an asylum in the bosom of a regularly organized government; a government, which being formed to secure the happiness of the french people, corresponds with the ardent wishes of my heart, while it gratifies the pride of every citizen of the united states by its resemblance to their own. on these glorious events, accept, sir, my sincere congratulations. in delivering to you these sentiments, i express not my own feelings only, but those of my fellow-citizens, in relation to the commencement, the progress, and the issue of the french revolution; and they will cordially join with me in purest wishes to the supreme being, that the citizens of our sister republic, our magnanimous allies, may soon enjoy in peace, that liberty which they have purchased at so great a price, and all the happiness which liberty can bestow. i receive, sir, with lively sensibility, the symbol of the triumphs and of the enfranchisement of your nation--the colors of france--which you have now presented to the united states. the transaction will be announced to congress, and the colors will be deposited with those archives of the united states, which are at once the evidences and the memorials of their freedom and independence. may these be perpetual, and may the friendship of the two republics be commensurate with their existence. george washington. united states, _january , _. when the reading of the message and papers had been concluded-- mr. giles informed the house that, having been aware that the flag would be presented to the house this day, considering it as an additional testimony of the affection of france, and it having been the practice on analogous occasions for the house to express their sentiments independent of the other branch, he had prepared a resolution expressive of what he conceived would be their sense on the occasion. it was nearly in the words following: "_resolved_, that the president of the united states be requested to make known to the representatives of the french people, that this house has received, with the most lively sensibility, the communication of the committee of public safety, of the st of october, , accompanied with the colors of the french republic, and to assure them that the presentation of the colors of france to the congress of the united states is deemed a most honorable testimony of the existing sympathy and affections of the two republics, founded upon their solid and reciprocal interests; that the house rejoices in the opportunity of congratulating the french republic on the brilliant and glorious achievements accomplished under it during the present afflictive war, and that they hope those achievements will be attended with a perfect attainment of their object, the permanent establishment of the liberty and happiness of that great and magnanimous people." mr. parker moved an amendment as follows: "that this house has received with the most _sincere and_ lively sensibility," &c. the amendment was for inserting the two words in italics, to which the house consented. the message was then voted unanimously, and a thousand copies of the communications and resolution were ordered to be printed. a committee of two members was appointed to wait on the president, and inform him of the resolution agreed to by the house. _case of randall and whitney._ pursuant to the proceedings of the house on friday last, mr. smith, of south carolina, mr. murray, of maryland, mr. giles, of virginia, and mr. buck, of vermont, delivered in at the clerk's table their several informations in writing, subscribed with their names, respectively, in the cases of robert randall and charles whitney; which are as follow: mr. murray declares, that, on wednesday last, the twenty-third instant, mr. smith, member of congress, of south carolina, informed him that a man of the name of randall, of maryland, had, the evening before, attempted to bribe him in western lands, on condition of his supporting an application which randall told him he should soon make to congress; the object of which application was, a grant from congress of from eighteen to twenty millions of acres of land, between erie, huron, and michigan. that mr. smith was extremely solicitous that some other gentleman should immediately be informed of the infamous proposal, and that he said he would mention it to mr. henry, of the senate, and advise with him upon proper measures for the detecting of the full extent of the scheme, and crushing it: that he had no opportunity of talking to mr. henry on that day; but early on the morning of the twenty-fourth instant, communicated the intelligence to mr. henry, who recommended that mr. smith should immediately inform the president: that on the said day, mr. randall, of maryland, was introduced to him, the informant, and requested a confidential interview at his, the informant's lodgings, which the informant readily promised him, to be at five, for the purpose of developing his scheme. that randall came at or near five, that day last named, to wit: on thursday, and communicated to mr. henry and himself, in general terms, the outline of a plan by which he, randall, and his canada friends, would extinguish the indian title to all the lands between lakes erie, huron, and michigan, as marked on a map which randall then showed, containing from eighteen to twenty millions of acres. that he, the informant, then asked randall into his apartment, where they were alone. that randall expatiated at first upon the public utility of his scheme, which was that congress should grant to him and his company all the lands aforesaid mentioned, for five hundred thousand, or, at most one million of dollars; and that he would undertake, in four months, that the harmony of the indians should be secured to the union: or, if congress thought proper, that the indian tribes now on said land should be removed to the british side, or down lake michigan, reserving to some aged chiefs a few miles square; that his company and himself had determined to divide the lands aforesaid into forty (or forty-one) shares. that of these shares twenty-four were to be reserved for the disposal of himself and his partner, now in town, for such members of congress as assisted them, by their abilities and votes, in obtaining the grant aforesaid. that of these twenty-four shares, his partner had twelve under his management for the eastern members of congress, and that he, randall, had the other twelve shares under his management for the southern members of congress. that these shares were to be so divided as to accomplish the object by securing a majority of congress. that the informant started an objection to land speculation as troublesome, and that he, randall, said, if you (meaning the informant) do not choose to accept your share of the land, you shall have cash in hand for your share. that the informant appointed randall to meet him in the lobby of the house, on monday, the twenty-eighth instant. that randall told him a memorial was to be handed in upon this subject on said monday; but refused to inform the informant what member was to present it. that randall told him, that he, randall, mentioned his plan to some members in the _general way_ only--meaning thereby, as he understood him, a view of the sounder part of the plan, as being conducive to public utility. that, in the early part of the confidential and secret conversation, randall said, that the members of congress who would behave handsomely, should come into their shares on the same terms upon which the company obtained the grant; but soon after, made proposals more openly seductive and corrupt; closing them with the offer of cash in hand as aforesaid. that the informant, on that evening, when randall went away, told mr. henry of the whole of randall's offers as aforesaid; then called on the secretary of state, and communicated the same to him; and the next morning, early, informed the president of the transaction. w. v. murray. december , . [mr. william smith, of s. carolina, mr. william b. giles, of virginia, mr. buck, of vermont, and afterwards, mr. sedgwick, of massachusetts, severally gave in statements corroborating that of mr. vans murray.] it was then moved that robert randall should be brought to the bar of the house. he was brought in accordingly. seats were placed for the judge of the district of pennsylvania, and the two counsellors for randall, mr. lewis and mr. tilghman, jr. the informations given in by mr. w. smith, mr. murray, and mr. giles, were read over, and the speaker asked the prisoner, what he had to say in his defence? i am not guilty. you declare yourself not guilty? yes. have you any proof to cite that you are not guilty? no. are you ready to answer? mr. lewis[ ] then rose. he observed, that these declarations had been made in the absence of the prisoner, who, as he conceived, was entitled to have been present. his request was, that the informants might now be placed in a situation to be examined by the prisoner and his counsel, and that the information may now be given in the prisoner's hearing. the prisoner and his counsel were ordered to withdraw. mr. jeremiah smith made the following motion: "that the prisoner be informed, that if he has any questions to propose to the informants, or other members of the house, he is at liberty to put them, (in the mode already prescribed,) and that they be sworn to answer such questions as shall be asked, and that the informants be sworn to the declarations just read." the words in parenthesis were an amendment suggested by mr. giles. the resolution and amendment were adopted by the house, and the prisoner with his counsel were again brought to the bar. the resolution above stated was read to randall. mr. w. smith, mr. murray, and mr. giles, were then sworn, standing up in their places: the oath being administered by the judge. mr. tilghman[ ] then observed on the delicate situation in which the counsel stood, with which they were strongly impressed. the high character of the gentlemen who stood forth in support of the accusation, gentlemen whom mr. t. had known personally for many years, with the odious nature of the crime charged on the prisoner, embarrassed them considerably; as they had, however, been permitted by the house to appear in this business, they were bound in duty to do every thing consistent with a fair and honorable defence. if mr. t. were to declare his own opinion of the conduct of the prisoner, it would be thus, that his behavior was highly improper and indelicate; but mr. randall denied having made any offer either of lands or money, as in fact he had none to give. the disposal of the lands depended entirely on the subsequent vote of congress. mr. lewis spoke a few words. the prisoner's defence was, that he denied any proposal of a corrupt nature. the members who favored the sale of the lands, were only to have their shares on the same terms, and on paying an equal share of the expenses, as the other partners. mr. w. smith was then examined upon that part of his information where he says, that those members who should be concerned with randall, were to have shares of the lands. mr. smith was asked whether the offer was that they were to be granted at an inferior rate? in reply, he understood it was to be on the same terms as other partners were to have them. mr. goodhue proposed a query, whether the offer made by mr. randall was in order that mr. smith might use his influence to forward the scheme in congress? mr. smith replied, that he certainly understood it so. the prisoner had all along referred to members of congress, though he did not expressly name them. his phrase was, "for persons who would favor the scheme." mr. tilghman then, through the speaker, asked mr. murray whether he understood he was to pay for his share of land as the other associates or not? mr. murray.--i understood him as is explained in the declaration. at first i understood, that the members who should assist in getting the thing through, might then retire to their homes, and when the scheme was in activity they might come in on the same terms as the original associates. but afterwards, i understood from randall that i might have a share if i would accept of it, and this i understood from the whole tenor of the latter part of his conversation. the shares set apart were to be for acceptance as donations. i so understood him. mr. tilghman.--did he expressly say, that they were intended as donations, or did mr. murray collect this to be the man's meaning from a variety of circumstances? mr. murray.--he did not say, if you will do so and so, i will give you so and so; his proposal, though more delicate, was as unequivocal as a direct offer. i so understood him. mr. harper asked mr. murray, whether randall did not tell him, that if he did not like land, he should have money, and whether the money was not to be more than the value of the share of land? mr. murray said, that from this part, and indeed the general tenor of the conversation, he did infer, that a donation was intended, and when he objected to land, the prisoner then said, if he did not choose to accept of a share in land, he might have cash in hand. mr. lewis, counsel for the prisoner, asked mr. murray, whether he did not state to randall his aversion to dealing in land, and whether randall did not say that this need not be an objection, since the share might be sold, and then that he would have cash instead of land? mr. murray.--i did not so understand it. mr. harper wished mr. murray to relate, as nearly as possible, the words of the prisoner in this important part of the conversation. mr. murray said, that immediately after it took place, and he had communicated it to his friends, he took notes of it. it stood in this manner: "i stated objections to land speculations as troublesome: randall then said, if i did not choose land, i might have cash in hand." mr. tilghman asked, whether mr. murray did not, to get the man's whole secret from him, go beyond his views to draw him on? mr. murray said, he affected to think well of the more sound part of the plan. mr. tilghman asked what mr. murray expressed to randall when it was proposed to him to engage in the land scheme? mr. murray.--a strong repugnance to land speculations. mr. lewis.--then it was, he said, that if it was not convenient for mr. murray to be concerned in a share in land, he might have it in money? mr. murray.--yes. mr. s. smith was next sworn. there was here a motion made for adjourning. mr. lewis stated that mr. tilghman and himself had never seen the prisoner until yesterday in the evening. they had been in court until late on saturday evening. they went yesterday to prison, and back again this morning. they had received a long written state of the case from mr. randall, but, from absolute want of time, they had not been able to read one third part of it. the motion to adjourn was negatived. mr. s. smith was then proceeding with his evidence, when mr. sedgwick rose. he considered it as unfair to examine mr. smith in order to prove the information given by other gentlemen. it was totally inapplicable. the offences were as distinct as any two things could be. mr. blount moved to put this question, whether any conversation passed between mr. s. smith and randall, which had an appearance of intending to corrupt the integrity of members of this house. mr. sedgwick objected, that this was deviating from the original specific motion. mr. giles was of an opposite opinion. mr. madison thought the motion proper, in the strictest sense. the charge was general; and the answer to the question might be of a nature to corroborate that general charge. after a few words from some other members, the motion was carried. mr. smith, of maryland, then on oath stated in substance as follows: that on the th or th, randall, whom he had known in maryland, called on him and asked half an hour's conversation with him. he said he had a plan in view, that would be to the advantage of the united states, and turn to his own private emolument. randall informed mr. s., that he was last year at new york, that he thence went to detroit to explore the country on lakes erie, &c., that he contracted an acquaintance with certain influential characters with whom he had formed an association to procure the lands in question. he mentioned the outlines of the plan and dwelt on the public advantages that would arise from it. he indirectly insinuated that gentlemen in congress who chose to be interested in the plan might have a portion of the land in contemplation. he asked mr. s. to fix a day when he should enter more particularly into a detail of the business. mr. s. fixed saturday following, and then retired into the room where his fellow-lodger was, and told him that some great land-business was on foot and that he believed he might make his fortune. on sunday randall came with a map on which he explained the position of the land and expatiated on the richness of the soil. he detailed the particulars of the project which mr. s. related as has been heretofore stated with some little variations. he enlarged upon the public advantages to the united states if the purchase was allowed. he said, he would be glad if mr. s. would embark in the undertaking, and give the plan his countenance; but, that, if he did not choose to so do, it could be accomplished without his assistance, as a decided majority of both houses were agreed to support it. mr. s. asked him, whether in the senate? he said, yes. he asked him for names; he objected to mentioning any. randall explained, that members who were most active were to have larger shares, and such as only gave their assent, smaller; mr. s. understood that he might have one of the larger. no money was offered as a temptation to engage, but he fully understood that every gentleman was to pay his full proportion of the price. he stated to mr. s., that it would save the united states much in men and money to have the scheme accomplished, and added, that if congress desired it, he could remove the miami indians to the other side of the lakes. mr. s. asked him what he proposed should be offered for the lands. he said, that would remain in the breasts of the gentlemen in congress. mr. s. asked whether one dollar an acre could be afforded, he objected to that as by far too much. mr. s. mentioned twenty-five cents, that was too much. mr. s. then suggested that he supposed two and a half cents were contemplated. randall answered, that if congress fixed this price it would be well so. he offered no direct bribe to mr. s., but proposed to take such members into the scheme at first cost as chose to embark in it. mr. s. asked him who was to offer his memorial. he mentioned a gentleman of great weight in the house. mr. smith, of south carolina, asked the date of this conversation. mr. smith, of maryland, answered, on the sunday following the th, which must have been the th. mr. lewis, through the speaker, asked mr. s., of maryland, whether randall had not said, that he had actually a majority in favor of his scheme; or, that he expected to get a majority? mr. smith, of maryland, understood that he had a majority, and on this ground, he said to mr. s. that his co-operation was not absolutely necessary. the prisoner was remanded, and the house adjourned. tuesday, january . _case of robert randall._ after disposing of the morning business-- robert randall was then brought to the bar, attended by his two counsel; the judge of the district of pennsylvania likewise took his seat, as yesterday, at the clerk's table. the speaker then addressed the prisoner as follows: "robert randall, this is the day and hour, to which your farther examination was postponed; you are now at liberty to proceed with your defence." mr. giles then moved that mr. christie should be sworn. this was done. the member then stated that he had been at philadelphia, about the month of october last. he met with mr. randall, who made up to him, and observed that he had this summer been in canada. he had missed the object for which he went; but he had met with another which he thought would prove advantageous. he at first advised mr. randall to apply to the secretary of state. mr. randolph had just then resigned his office; and no other person was appointed in his stead. mr. c. then advised him to lay the affair before the president. when he came back to town at the sitting down of congress, randall came again to him, and said that by good advice he had altered his plan. he complained that mr. c. was the only member who had not been ready to assist him. a considerable majority of the house of representatives were secured to the scheme. mr. c. said, that he never would advise congress to sell their lands under a dollar per acre; and as mr. randall wanted the lands so much cheaper, he must in the course of his duty oppose the plan. mr. c. inquired who were his advisers. he answered, that mr. whitney had told him that mr. sedgwick recommended this way of proceeding, and was to draw up a memorial to be laid before the house upon the subject. mr. sedgwick finding his name thus unexpectedly introduced, wished to be allowed to give oath in order that he should tell all he knew. the oath was administered to mr. sedgwick, who gave information to the following effect: he had never in his life seen randall, till he was produced at the bar. whitney he had seen two or three times. the mr. jones mentioned by whitney, in his declaration lives within about thirty-four miles of mr. sedgwick's house. whitney, with mr. jones, came, a considerable time ago, to him one morning, while he was at breakfast. they asked his opinion; which was, that government would not sell any lands, till the indian claim was first extinguished. mr. jones endeavored to convince mr. sedgwick of the benefits which would result to the united states from this sale. mr. sedgwick accompanied them to the door of his house, where mr. jones asked him whether there would be any thing improper in a member of the legislature being concerned in such a purchase? mr. sedgwick said, that this would depend entirely on the mode of application. if it was to the land office, there would be nothing wrong in it; if to congress, then it would be a man making a bargain with himself. whitney, since mr. sedgwick came to town, had called two or three times on him. he got his servant for more than once to deny him, as he was busy. once, however, he did see him; the first question of mr. sedgwick was, from what state did he come? he said he resided in vermont. he then spoke of the matter in a general way; and mr. sedgwick, whose object it was to shake him off, advised his calling on mr. buck, a member from that state, as it would be more proper to call on him. mr. sedgwick believed that he was more teazed with applications of this private kind than any member in the house. during the conference with whitney, he did not remember that randall's name was ever introduced. mr. sedgwick heard, with astonishment, the name of colonel pepune mentioned. he lived opposite to mr. sedgwick's house, in the town of stockbridge. he rode down from that place to new york, along with mr. sedgwick, and never spoke one word of the matter to him. randall had, among other stories, told mr. samuel smith that mr. wm. smith _should_ bring forward this land business, in the house. he positively said so to mr. s. smith on the th of december, and it would be proved that he had never exchanged a word with mr. w. smith, nor ever seen him till the d of that month, viz: _about nine days after_. this is the substance of a short explanation which took place between some of the members, after mr. sedgwick had ended his declaration. mr. w. smith then asked randall, whether it was not true, that he spoke to mr. samuel smith before he spoke to himself? mr. tilghman, in reply, said that he was authorized to answer in the affirmative. this puts to rest the story related by randall to the member from baltimore. wednesday, january . _case of robert randall._ mr. sedgwick laid before the house some additions to his evidence, delivered yesterday. he gave in a written copy of the whole, and wished that it might be added to the declaration already made. the paper was read, and, on motion, ordered to be inserted in the journals. mr. sedgwick said he had yesterday mentioned col. pepune being in philadelphia, but he had not seen him. he has since done so. the colonel lodges at the sign of the drover, in third street, and is ready, when called upon by the house, to tell every circumstance which he knows about the transaction of randall or whitney. mr. w. smith submitted, whether it would be proper to proceed any farther in the case of randall, till some hearing had been given to whitney. it was then moved by a member that the case of randall should be postponed. after some conversation as to the point of order, the motion was negatived. mr. harper then read two resolutions. of the first, the following is the substance: "_resolved_, that any attempt to influence the conduct of this house, or its members, on subjects appertaining to their legislative functions, by motives other than the public advantage, is a high contempt of this house, and a breach of its privileges." the second resolution was, in substance, that randall having committed such an offence, was guilty of such a contempt, &c. mr. harper thought it proper, before deciding as to randall, to lay down certain principles, and decide whether the offence was in itself criminal or not, before determining the conduct of the prisoner. mr. kitchell thought these resolutions unnecessary. the only thing before the house was to call on the prisoner, and pronounce him either innocent or guilty. mr. harper, in defence of his resolutions, said, that one misfortune attending privileges was, that they could not be exactly defined; but, as far as they could be ascertained, it was the business of the house to do so. if this offence is a breach of privilege, we are entitled to declare it such, that the people of the united states may be informed that it is so. mr. w. smith could not conceive how any member would vote against this first resolution. if we refuse to say that the act itself is a crime, how can we condemn randall as criminal? we are, in every sense of the word, bound to vote for the proposition. we have declared the attempt of randall to be a high offence and contempt. if any member thinks it not so, then, to be sure, he will vote against it. mr. smith said that legislative bodies had frequently, while a prisoner was on trial before them, laid down rules to guide them, previous to their pronouncing sentence. a former member had suggested that it was better to make the resolution a preamble to the sentence, and introduce it with a _whereas_. as it stands at present, it is agreeable to what had been done already. mr. nicholas hoped that members were not to be bound by any thing yet done. at the first embarking of the house in this affair, he had felt doubts. his scruples had gradually augmented, and he was now of opinion that randall should not have been meddled with at all, in the present way. the right of privilege had been given up, unless in cases of absolute necessity. he did not think that any resolution had yet passed the house, upon due consideration, whether they had a right to proceed or not. mr. nicholas recommended lenity, rather than a parade of integrity, where there was no ground of suspicion--a parade which would not have been made if there had been any real danger. mr. williams thought the resolutions altogether unnecessary. the principle is already entered on the journals. all that the house have to do is to declare randall guilty or not. mr. hillhouse agreed with mr. williams, but he was astonished at the doctrine held up by the gentleman from virginia. we had been told yesterday, at the bar, that the offence is not punishable by the common law. we are not to do so by privilege. the consequence is, that an attempt to corrupt members cannot be punished at all. it would not be proper to tell this to the public. any body may then come here and bid for votes. mr. hillhouse thought that the counsel yesterday had fairly given up the point, for they admitted that improper violence without doors was a breach of privilege. mr. h. argued that this was as great a violence as could be. he was for inflicting a punishment. mr. livingston thought the wording of the first clause too broad. any member spoken to without doors might come into the house and complain of a breach of privilege on trifling grounds. mr. giles would not at present enter into the question whether there had been a breach of privilege or not. from any thing yet seen, he was doubtful. he was against the preamble. privilege was of an insinuating nature. mr. livingston had taken up a thought which occurred to mr. giles. any man meeting on the street a member of this house, may say to him, "sir, by voting for such a thing in the house, you will destroy your popularity in your district." this argument was not on motives of public good, and a member might by this resolution be warranted to come into the house and complain of it as a breach of privilege. he wished for the previous question, which was taken, and by a great majority the resolution was negatived. mr. livingston then read two resolutions. their tenor was, that it appears to this house that robert randall has been guilty of a contempt and a breach of the privileges of this house, by attempting to corrupt the integrity of its members, in the manner laid to his charge, and that randall should be called up to the bar, reprimanded by the speaker, and recommitted to custody, till further orders from this house. on the first resolution the yeas and nays were called for--yeas , nays . after some conversation, the second resolution was likewise agreed to. randall was then brought to the bar, and in a few words reprimanded by the speaker. to call his offence indiscretion, impropriety, or indelicacy, was too mild a name. his conduct was _crime_. his apparent ignorance of the nature and extent of his guilt had induced the house to be more indulgent than they otherwise would have been. the speaker informed him that he was recommitted to custody till further orders from the house. thursday, january . _case of charles whitney._ mr. whitney was now brought in. the speaker addressed him as follows: "charles whitney, the information lodged against you on the journals of the house will now be read to you by the clerk." this was accordingly done. mr. whitney was next asked at what time he would be ready to proceed with his defence? he replied that he thought he could be ready to go on just now, if he had counsel. if he could get them to-morrow, he should be glad to go on then, in order to get the thing over. if counsel could not be got, he would request a delay till monday. he was sure mr. buck had mistaken his meaning. he was told that he would be called on again to-morrow, and if he had not been able to obtain counsel then, there was a probability of his being allowed a delay till monday. mr. bourne stated the hardship of obliging the prisoner to fee counsel; no probability existing of any thing farther being brought against him. there was but little in the charge, admitting it to be true. mr. b. made a distinction of the conversation having passed in vermont, not in philadelphia. it was before mr. buck came to congress at all. mr. giles had yesterday expressed but little satisfaction at the mode of conducting this business, nor had his satisfaction been since augmented by further reflection. he read a motion, which was seconded, for dismissing whitney immediately. admitting all which stood charged, mr. giles did not consider it as containing any breach of privilege. mr. w. smith regarded this resolution as premature; he wished to have the regular forms of trial gone through, as in the other case. when the trial was finished, the house could then decide on the guilt or innocence of the prisoner. he thought that mr. buck ought to be sworn. when the offer was made in vermont, he was looked upon as a member of congress, and the temptation which had been held out to him was a contempt of the house. there was not yet a sufficient explanation to justify his discharge. mr. hillhouse supposed corruption to be equally criminal in vermont as in philadelphia. it would commit the dignity of the house to say that we have kept a man in jail for a week, and then have dismissed him without a trial. it implies that we never had any right to arrest him. mr. h. had not formed his ultimate opinion on the subject. he wished the trial to be gone through, and then, if the prisoner proved innocent, dismiss him. he had made application to a member in this town, besides mr. buck in vermont. [mr. goodhue, on whom mr. whitney called, after he came to philadelphia.] mr. buck objected to the immediate dismission of whitney. it struck him as an impropriety to dismiss the prisoner by an unqualified resolution. it would be better to state, as a reason, that the attempt to corrupt the integrity of a member had happened in vermont, before the sitting down of congress. then let the question come forward and be tried. mr. sedgwick had, more than was usual with him, avoided speaking on this question. he early entertained an idea that an application to a member of congress, before it sat, was not a breach of privilege. it was an unfortunate circumstance when the same persons were to be both judges and parties. people were apt to get into a passion when one came to them and said, "i consider you as rascals, and i want to purchase a portion of your rascality." mr. madison said, it appeared to him that the house could have no privileges, unless what arises from the necessity of the case. he differed from the opinion formed by the house, but he wished them to act in conformity to their own principle. the object at present before the house is, to keep its members free from corruption. whether a proposal is made in town or country, if we dismiss names and circumstances, and look only to the substance of the thing, there is no distinction between the two cases. mr. page said, that if the motion for dismissing had come on a week ago, he would have voted for it. he wished to get rid of the matter as fast as possible. he alluded, though not in direct terms, to the idea of mr. lewis, that it would have been better to have kicked some people down stairs, than to have made them objects of prosecution. mr. harper considered it as a material distinction between a member being attacked and beaten, for example, in philadelphia, during his attendance on congress, and the same accident occurring during the recess, in a distant part of the country. it was admitted that the doctrine of privilege violated the rights of the people, and could be justified only upon the plea of necessity: it being so liable to misapprehension and misconstruction, he wished to see as little of it as possible. he gave his hearty concurrence to the resolution of mr. giles. he had been desirous of seeing such a thing brought forward. he adverted to the delicate situation of the house, at once accusers, judges, and witnesses. mr. gallatin spoke a few words in favor of the motion. mr. isaac smith was persuaded that the house possesses privileges, and has a right to exert them. they are pointed out by the constitution. mr. s. wished to dismiss the prisoner. it had been said that dismissing him without a trial, after having apprehended and confined him, would be casting a reflection on the house. no such thing! there existed probable grounds of suspicion. we have waited full time, and no proof has come forward. then let him go, and the sooner that we do it the better. when mr. isaac smith sat down, mr. giles rose to offer a resolution, in place of his former one: "_resolved_, that it appears to this house that the information lodged against charles whitney does not amount to a breach of the privileges of this house, and that he therefore be discharged from custody." mr. freeman voted yesterday in a minority for dismissing randall. he would this day vote for discharging whitney. as to the dignity of the house, even an outrage upon it could be as well punished by a justice of the peace as by ourselves. he stated the extreme difficulty of adopting, in practice, the doctrine laid down, that an improper offer made to a member when in the country, was to be punished as a breach of privilege. a member, suppose from georgia, comes here, and tells a story of somebody in that state who has made him an unsuitable proposal: the sergeant-at-arms is instantly despatched a thousand miles to bring this person to the bar for contempt of the house. what kind of a business would this be? mr. hartley thought the resolution last offered by mr. giles had too much narrowed the ground of dismissing whitney. he had been taken up as an associate with randall. the charge had not been properly supported by evidence. dismiss him, and let the want of proof be your reason for it. mr. h. cordially agreed with the substance of the resolution, but he objected to the wording of it. mr. kitchell pointed out the wide distinction between the cases of randall and whitney. it had been said that the latter must be criminal, for he was an associate with randall. mr. k. saw no such thing. there was no criminality in the bond. keep a man in jail week after week upon idle suspicion! injustice, whitney ought to have been tried at first, when he declared himself ready for trial. mr. k. was for discharging him this day. mr. harper now moved an amendment to the resolution before the house: it was in these words: "inasmuch as the proposals made by the said whitney took place before the member to whom they were addressed had taken his seat in the house." mr. giles.--if the amendment succeeded, he would vote against the whole proposition. this was a renewal of the attempt to define privilege. it was not practicable. every case of the kind must stand upon its own merits. mr. g. would vote against the amendment. mr. macon read a resolution, that charles whitney be discharged from the custody of the sergeant-at-arms. this was, in fact, reducing the second resolution offered by mr. giles back into his first one. mr. sedgwick thought it an awkward thing to attempt giving any reasons. if gentlemen are willing to agree to discharge mr. whitney, they ought to discharge him. they assign different reasons for the same proceedings, and will not consent to it, but each in his own particular mode. mr. harper was astonished to hear so many invincible objections to telling the motives why we agree in a measure. it had been complained that privilege was undefined; that it was an assuming, creeping monster. an attempt had been made to define it, in part, and this also had been objected to. mr. macon said, that he would vote to discharge whitney, for a particular reason alleged by mr. giles. now, replied mr. giles, if the gentleman is to vote for the dismission because that is my reason, i desire him to vote against the dismission. my reason for discharging whitney is totally different. i argue, that all which we have entered on the journals, admitting it proved, does not amount to any breach of our privileges. that is my motive for dismissing the prisoner. an amendment was proposed to strike out of the resolution of mr. giles the following words: "that it appears to this house, that the information lodged against charles whitney, does not amount to a breach of the privileges of this house; and." the amendment was agreed to--ayes , noes . it was then moved to alter the remainder of the resolution, by striking out the word "he," and inserting "charles whitney." the amendment was adopted; and the resolution so amended, stood thus: _resolved_, that charles whitney be discharged from the custody of the sergeant-at-arms. this, also, was agreed to. friday, january . jeremiah crabb, from maryland, appeared, was qualified, and took his seat. _indian trading houses._ the house went into committee of the whole, mr. muhlenberg in the chair, on the bill to establish trading houses for the indian tribes. mr. dayton objected to the bill, so far as it empowers those who are to sell the goods to the indians, to procure or purchase the goods. he considered the uniting these powers in the same persons as highly exceptionable and liable to great abuse. he moved to strike out the words "procure or." mr. parker said that the objection was misapplied, for subsequent clauses placed the business under the special direction of the president of the united states. he should not, however, object to striking out the words. his view in rising was merely to justify the committee who reported the bill, as they had supposed that sufficient guards were provided. mr. giles did not think the reason given for retaining the words sufficient. the president cannot be supposed to have such cognizance of every part of this business as will enable him to secure the public, or indians, from imposition. he was for increasing the checks against abuse. the motion for striking out was agreed to. in the third section, mr. sedgwick objected to the words "laying aside all view of gain by the trade." they might operate disadvantageously to the people of the united states, if government should enter into this trade on a principle that would preclude all private adventures in the same line by citizens. the words were expunged. mr. parker presented a substitute. it relates to compensation of agents and clerks to be employed. the sum of ---- dollars was to be appropriated. the substitute was adopted by the committee. in the seventh section, mr. sedgwick moved an amendment, providing for the forfeiture of licenses in case of contravening the provisions of the law. this motion was withdrawn in order to introduce the provision elsewhere. mr. milledge moved to strike out the whole of this seventh section. it appeared to him to involve provisions which would be proper in another law, but in this bill blended two different subjects. mr. sedgwick considered the provisions in this section referring to certain rules for regulating the public trade with the indians, as proper, since similar rules would be made in regulating the trade of individuals with indians. on this ground he was for retaining the section. it was moved to modify the section by confining the provisions to "the agents or clerks," specially employed by the united states. this amendment was agreed to. on the motion of mr. sedgwick, the last clause of the seventh section, relative to the oath or affirmation, was expunged. the committee then rose; the chairman reported the bill with the amendments, which were taken up, and agreed to by the house, with one verbal amendment. mr. swift expressed his disapprobation of the bill. he thought the object unattainable to any important extent. he disapproved of public bodies being concerned in trade. it is always managed better by individuals. great loss and dilapidation are the consequence; nor is it possible to guard against frauds and abuses. the public have no money to spare. it is the opinion of the committee of ways and means, that additional taxes will be necessary for the public service. we must not tax our constituents for the sake of trading with the indians. he hoped not. mr. s. concluded by a motion for striking out the first section. mr. parker supported the principle of the bill; he wished a fair experiment to be made. the plan is founded on humanity and benevolence. it has been recommended by the president from year to year. mr. p., on this subject, had been in sentiment with him. it was well-known he had never lightly advocated a disbursement of public money; on this occasion, it would be a saving of public money. it will cost much less to conciliate the good opinion of the indians than to pay men for destroying them. mr. hillhouse was in favor of an experiment. much had been anticipated from the plan; a beginning had been made, and he thought it best to try it for such a length of time as would afford a fair experiment of what could be done. mr. swanwick said he was in favor of the principles of the bill, were it merely as a change from our usual system of indian affairs. we have hitherto pursued war at an expense of a million and a half of dollars nearly annually; let us now try the fruits of commerce, that beneficent power which cements and civilizes so many nations; barbarous till they became acquainted with its influence. to encourage us, indeed, a fact has come to our knowledge on the investigation of the case of randall. gentlemen will remember his assertions to them, and the deed read in the house, in which so much was stated of the influence of the canada traders over the indians: well, let us try to balance or countervail this influence; but it has been observed, our private citizens will do this sufficiently in the way of their private trade. in general i am friendly to let commerce take its own level without governmental interference; but the little influence our traders have yet obtained, shows plainly enough defective capital or a defective extent of trade; both are to be apprehended. so many objects of speculation offer in this country, that individuals may not pay sufficient attention to this branch, in which they have so powerful a british interest to contend with. government, alone, can do this in the infancy of the commerce. let the experiment be made; we can lose little by it; we may gain a great deal. it has been observed, that this act has been rejected in three different sessions of congress already; and this is argued as a proof of its want of merit; but this has been the fate in england of the navigation act; it was hundreds of years struggling to get into existence, but was not the less acceptable when at last it succeeded. perhaps we may find this bill, on experience, none the worse for the difficulties, which, as an untried step, it has hitherto had to encounter: it is recommended by general reasoning; let us try it; we can only repeal it if we find it does not answer the sanguine expectations entertained of it. mr. macon[ ] was opposed to the bill. he thought the circumstance of the business having been so long in agitation, was a reason why it should be longer considered. the reason for delay was certainly not weakened by that. the business was highly improper for government to embark in. mr. murray had but one idea to suggest, as it was unnecessary to go over the general policy, which had been amply stated by other gentlemen. there appeared to him two objects; first, the securing the indian friendship by a supply of their wants; second, the supplanting the british traders in their influence over the tribes whose hostilities might embarrass us. to the last object, therefore, the meditated mode of supply by public agency was peculiarly well adapted. the indians are now supplied by a great company long established, very wealthy, and possessing this influence, in which we must supplant them. we are to consider whether, if private individuals are left to be the only competitors with the canada company, this influence and this trade will be transferred agreeably to sound policy. he thought they would not. small capitalists, and adventurers young in this trade, would certainly prove unequal to a competition with so well established and rich a company as the canada company. it was no uncommon thing for great companies, when they were apprehensive of what they would call interlopers, to crush all competition by making a voluntary sacrifice of a few thousand pounds sterling. by underselling, on a large scale, for a time, and even a certain loss, they secured themselves in future from competition. this great company can afford to pay this price for the perpetuity of this trade and influence. in order to meet the capital of this company, we must not trust to individual small capitalists. by a sum appropriated by government to the object, however large the capital in competition in canada, the government will be able to beat down the trade of this company and place it in american hands; and in a few years after the competition has ceased, the government may then withdraw its agency, and leave it to private capitals, to which the field will then have been rendered easy. the motion of mr. swift was negatived; and the bill was ordered to be engrossed for a third reading. wednesday, january . _appropriations for ._ the house went into committee of the whole on the bill making appropriations for the support of government in the year . mr. williams, agreeably to notice given on a former day, moved to strike out all that gross sum appropriated for the officers of the mint.[ ] mr. w. smith said that a great proportion of the sum was for salaries established by law. they must be paid, till the law is repealed. if the gentleman means to suspend the whole appropriation bill till an inquiry is gone through with respect to the mint, the bill may be delayed for two months, and the consequence be the greatest embarrassment in government. mr. jeremiah smith had never been much in favor of the mint, nor had experience increased his good opinion of it. but passing this appropriation bill would not prevent a full investigation of this subject hereafter. he was for deferring any proceeding about the mint till the select committee made their report. he opposed the motion. mr. sedgwick thought that the course which the gentleman is pursuing had never been adopted before. it is incorrect to discuss the merits of the mint in passing this bill. we might as well take up the salary of the chief justice, or any other article in the bill, as the mint. we never should have done, at this rate. we are now only to vote for the bill, as agreeable to the laws already made. mr. sedgwick said that if the gentleman from new york (mr. williams) would bring forward any proposition for the regulation, or even the abolition of the establishment of the mint, if it could be proved productive of public benefit, he, with every other gentleman, would give him their aid to effect the object; but that now, he conceived, it could not regularly be brought forward. he thought an appropriation bill should be conformed exactly to the state of the public engagements, and that where establishments had been formed and salaries provided, the amount of them should be the principle of calculating the amount of appropriations; and that the house ought not, by withholding appropriations, to break in upon and destroy establishments formed by the whole legislature. that these observations had hitherto been sanctioned by the practice on this subject. he observed, that if the house was to investigate, in the discussion of an appropriation bill, the amount of salaries and the legal establishments of government, the public service would be dangerously destroyed. he remarked, that it was to be observed that no appropriation was made, for any purpose, since the commencement of the year. mr. gallatin felt alarmed at the principle advanced by mr. sedgwick, for, if admitted, it might be applied in future on some other and important occasion. the motion made by the member from new york ought not, perhaps, to be adopted; but there was certainly a discretionary power in the house to appropriate or not to appropriate for any object whatever, whether that object was authorized by law or not. it was a power which, however inexpedient on the present occasion, was vested in this house for the purpose of checking the other branches of government whenever necessary. that such a right was reserved by this body, appeared from their making only yearly appropriations for the support of the civil list and of the military establishment. had they meant to give up the right, they would have such appropriations _permanent_. there was one instance in which this house had thought it proper to abandon the right. in order to strengthen public credit, they had consented that the payment of interest on the debt should not depend on their sole will, and they had rendered the appropriation for that object not a yearly, but a permanent one. whenever that was not the case, and the right had been reserved, it was contradictory to suppose that the house were bound to do a certain act, at the same time that they were exercising the discretionary power of voting upon it. mr. sedgwick said that he certainly had no intention to have given occasion to the observations which had been made; but, as the general principle which he had laid down had been denied, and as it had some relation, either intimate or remote, to the subject before the committee, he would take the liberty to repeat the principle, and say a few words in support of it. the principle, then, which he had assumed, was, that when legal establishments were made, it was the duty of the legislature to make appropriations conformably to the public engagements; and that neither branch had a right to withhold its assent. he observed that the whole legislature, and not a part, were competent to form contracts, and to establish and alter compensations and salaries. the legislature, and not either branch of it, had the power of expressing the public will, and pledging the public faith; that when a salary is ascertained, the public faith is pledged that it shall be paid, according to the stipulation; and that, therefore, the public credit is involved in making the necessary appropriations, without which it could not be paid. he asked, if, in such a case, it was competent to the house rightfully to withhold the means necessary for the performance of the public engagement? he said he had always supposed that the power of the house, in the case of appropriations, did not give a power to yield or withhold assent on such a subject. he believed, in every such instance, the exercise of discretion was restrained. to illustrate his ideas, he could mention a similar instance. the constitution had declared that the president should receive a stated compensation for his services, to be ascertained by law, which could neither be diminished nor enlarged during the term for which he should have been elected. here was a duty imposed on the legislature, with the performance of which they could not, they had no power to dispense. yet, after the compensation was stated, no payment could be made in consequence of appropriating. he asked, if, in this case, when the public will was expressed, the engagement and the national faith pledged, the legislature could of right withhold the necessary appropriation? the same observations might, he said, be applied to every instance where public contracts were formed. the public faith was pledged, the necessary appropriation must be made to prevent a violation of it; and if withheld, such violation might justly be charged on the legislature. mr. nicholas was for the resolution. it had been urged that the house were to pass the appropriation bill as a matter of course. he thought otherwise. the house, in enacting a law, were entitled to consider all its consequences. mr. giles adverted to a fact stated by mr. williams, viz: that the cents are issued from the mint at a cheaper rate than the price of the copper itself; so that, if a person chooses to melt down a pound weight of cents into a lump of copper, and takes this lump back again to the mint, he will receive more money for it than what it was worth in cents. thus the whole expense of workmanship is cast away. mr. giles described the ridiculous and wasteful effects to be looked for from such a way of coining money. the amendment of mr. williams was agreed to by a very large majority. mr. nicholas moved to strike out some of the subsequent clauses, for payments to mechanics, for stationery, &c. mr. isaac smith wanted to know if it was meant to stop the whole operations of the mint. mr. page objected to dispersing the workmen, who could not easily be collected again; at least it would require an immense expense to re-assemble them. it has been stated, in the course of this discussion, that _every cent coined in the mint_ has cost the public ten; but if the workmen are to be dispersed, and if at any future time assembled again, the cents may come to cost _a hundred cents_ apiece. mr. p. recited various reasons for hoping that the business of the mint will in future be conducted with more expedition, economy, and success. he stated the immense benefit arising to the country from the plenty of copper money, and especially to the poorer classes of people. a mint was of more consequence than gentlemen seemed to think it was. he said that private mints were reported to be setting up. he wished to refer the amendment of his colleague from virginia to the third reading of the bill. by that time the house would be better informed. mr. nicholas did not wish to abolish, but merely to suspend the operations of the mint till nearer the end of the session. this amendment was negatived. the committee rose, the chairman reported, and the house took up the bill as reported. the house adhered to the amendment of the committee of the whole. mr. livingston next moved that the whole appropriation for the mint should be struck out. mr. murray said, that had the gentleman from new york moved for delay, for the purpose of introducing a motion to repeal the law which rendered this appropriation necessary, he would not have troubled the house with a single remark; but his motion to strike out an appropriation for the purpose of bringing the policy of the law itself into discussion, contained a principle in his mind so repugnant to the great legislative duties of the house that he would oppose it. the object of the appropriation is not a temporary one, but a part of the machinery of our government, under the express authority of the constitution by law. the doctrine now contended for by the gentlemen from new york and pennsylvania (mr. livingston and mr. gallatin) was that this house have a discretionary power of appropriating or not. to this doctrine, taken in the extent which he conceived they contended for, he could not give his support. on the contrary, he thought that in all cases where an appropriation flowed from a law to make good a contract, or to erect a permanent organ in the government, and from any law whose object was permanent, the true doctrine was, that it was the duty of the house to vote an appropriation. a law is the will of a nation. the same powers only that formed it can repeal it. if it be a constitutional act, no power can lawfully obstruct its operation or its existence. but attending to the doctrine maintained to-day, it would follow, that though this house had not the power of repealing a law made by all the branches of government, it may obstruct its operations and render it a dead letter; though it cannot repeal, it may do what shall amount to a repeal, which is the assumption of a power almost equal to that of exclusive legislation. he thought he saw in this an evil of great extent, and an anarchy of theoretic principles. it appeared to him that though we originate money bills, we had no right to refuse an appropriation to existing laws that either secured a debt or any contract, or that related to objects permanent by the law that created or acknowledged them, as long as the law itself remained unrepealed. we had but a share of legislative power. where a law relative to such objects as he had alluded to existed, from which an appropriation followed, till the law ceased by repeal or by other constitutional means, it was obligatory upon us as well as upon our constituents, and the only powers we could exercise of a discretionary sort resolved themselves either into this mode of making good the appropriation, or of voting for its repeal. the other branches would then judge of the propriety of our proceeding; but till they who assisted in its enacting, judged with us the necessity of doing it away, a duty resulted that we should give it the energy intended by its enaction. mr. dayton conceived the question brought under discussion of too delicate a nature to be decided at the present time. he, however, expressed it as his opinion that the power of making appropriations was intended and ought to be a check on establishments. mr. nicholas conceived the house bound to weigh the merits of every law when an appropriation was to be passed to carry it into effect, and no appropriations should obtain the sanction of the house, unless they were convinced of the propriety of the law. mr. giles said he did not expect to hear a doctrine so novel broached in the house as that advanced by the member from massachusetts, (mr. sedgwick.) he had declared that he conceived the house could exercise no discretionary power when about to pass an appropriation bill. mr. sedgwick rose to explain. the principle he advocated was, that when a law was made pledging the public faith, the house had no discretion to withhold, or not, an appropriation; at least as long as common honesty was more than a name. mr. giles said that if this doctrine was admitted in its full latitude, the house would become a mere office for the registering of edicts. he contended that the house had a right, by withholding appropriations, to put an end to an institution without the concurrence of the senate. he would not say that the present was a case that called for the exercise of that right, but they had in all cases of this nature a right to exercise their discretion. mr. murray considered the laws of the land as depending upon two other branches of the government besides this house, and conceived it highly improper in the house to attempt to obstruct them by withholding necessary appropriations. what would be the effect of a contrary doctrine? it must contain the seeds of governmental anarchy. while a law remained in force it was the duty of the house to do what was needful to carry it into operation. he made some allusion to the british house of commons, who, by privilege, contend for the right of withholding supplies to be a check on the patronage of the crown. but such a principle, he contended, could not apply here; our government could not proceed if it were admitted. as long as a law exists, it is the duty of the house to make the needful appropriations. the whole wisdom of the government is not in this house. the same power is required to repeal laws as to make them. it is true the constitution has given to the house the more immediate command of the purse-strings; but they were under an obligation to open them when necessity required. there is a constitutional way of repealing laws; but the house has no right to obstruct their operation while in force. a member from pennsylvania, (mr. gallatin,) he observed, appeared on a former occasion to coincide with his opinions on this subject; for he argued that the house was bound to pass such an appropriation, as a law existed giving the salary to the officer which it was meant to provide for. mr. gallatin said, in answer, that his observation had simply been, that the committee of ways and means, and not the house, conceived itself bound to report an appropriation for an item established by law; but he never doubted the power of the house to pass, or not, an appropriation. in such cases the line of duty must remain to be drawn by opinion. with what degree of consistency can the house be called on for a vote if, as some members contend, they cannot have an opinion? why are they called upon to say, yea or nay, if they are obliged to say yea? mr. murray conceded that a member might say yea or nay, but his duty must in cases of this nature clearly point to one of the two; for he could not mistake the black and white marks in the court of conscience. he has the physical power to say yea or nay; but if he does his duty he must say yea. the contrary principle would go to this, that the house had a right to refuse an appropriation to pay a just debt. mr. gallatin observed, in reply, that each member will be the sole judge whether it was or was not his duty to say yea, or the contrary. the constitution, he said, declared that no money should be drawn from the treasury but by appropriations made by law: this did not look as if the voting of appropriations was intended to be merely a matter of form. in the second place, the constitution declares, that no appropriation for the support of an armed force shall be made for more than two years. thus, though a military establishment may be formed by enlistments for three or more years, yet the constitution provides that the question shall be submitted to the house every two years; and this surely is not as a matter of form; but in order, at such short periods, by voting on an appropriation bill, to determine whether such an establishment should exist longer or not. he conceived the power which he advocated as residing in the house of great consequence, and to be used on important occasions only. mr. nicholas, who had risen at the same time with mr. gallatin, and had given way to him, observed, that when he first rose, he was going to read the clause of the constitution which the member last up had referred to. as to the black and white marks the member from maryland spoke of, they were differently placed in different persons; in matters of opinion men will differ; but the constitution is a guide not to be departed from. the power of appropriation was vested by that instrument chiefly in the house, and no power on earth would prevent his exercising his discretion when that power was to be put in activity. mr. giles observed, that the member from maryland had got into the doctrine of checks, and seemed to think that if the house exercised its constitutional check it would produce governmental anarchy. mr. murray explained. he had alluded to the mode of getting rid of an establishment by refusing appropriations to carry it into effect. the constitutional mode of procuring the repeal of the law should always be had recourse to; but he insisted that the house could not, as they were bound by their duty, obstruct a law in force by refusing an appropriation. mr. giles conceived that the checks provided by the constitution might be used by each of the powers of government to their full extent, limited in every particular case only by their own discretion. if the harmony of the branches was to be made an argument to prevent the exercise of checks, what, he asked, became of the checks provided by the constitution? each branch of the government (if he understood what was meant by constitutional checks) was to exercise its own opinions and use its discretions within constitutional limits, without a reference to the opinions of other branches. he next adverted to the powers of appropriation, which he contended were in a greater degree vested in the immediate representatives of the people, to be a wholesome check. in case of an army establishment, for example, suppose the president or senate were to refuse their assent to the repeal of a law establishing it? will it be said that the clause of the constitution empowering the house to make a biennial appropriation for the object, does not vest in them a discretionary power in such instances of overturning the establishment by its own will? for it cannot be kept up without an appropriation. is the house to be told that, for the sake of harmony, they must give up their own powers and opinions? he maintained that, in cases of appropriations, they had a discretionary power, to be exercised, as in all cases, discretionarily. was one branch to be judges of discretion for another? no; each should judge for itself. mr. murray said, it was known to every one that an appropriation for the support of a military establishment could not be made for a longer term than two years; but that case was widely different from the present. it was known that, by the constitution, a military appropriation cannot exist more than two years; but the doctrine he supported was in cases of debt or obligation under a law; and, in such cases, he still contended that, though the house had the physical power to refuse an appropriation to satisfy a claim thus founded, they had not the right. here the debate was interrupted by a motion for adjournment; which was carried, and the house adjourned. wednesday, january . _appropriations for ._ the amendments from the committee being thus gone through, the bill was ordered to be engrossed for a third reading.[ ] saturday, january . _stenographer to the house._ the house then went into a committee of the whole on the report from the stenographical committee. the report was read. mr. swanwick: then rose for the sake of asking information. he inquired whether the house were to sanction and authorize the reports of the proposed stenographer? he had very considerable apprehensions about the propriety of entering into the subject in any mode. mr. w. smith replied, that the gentleman engaged by the committee had undertaken to have his reports ready for mr. brown, printer of the philadelphia gazette, in the morning of the succeeding day. mr. swanwick rose again. he observed, that to give universal satisfaction was impracticable. so many gentlemen were to be satisfied, that it never could be accomplished. he observed that one of the principal causes of complaint against reporters was of a nature that did not admit a remedy. gentlemen rose, in the ardor of discussion, and suffered many remarks to escape from them, which, neither in thought nor expression, were perfectly correct. if the reporter, as was his duty, took them down, and stated them exactly, gentlemen were irritated by seeing themselves exhibited in this shape, and then blame was cast on the reporter. every degree of praise was due to the editor of a philadelphia daily newspaper, whom mr. s. named, and who had not only done every thing in his power to obtain the debates of the house at full length, but had frequently advertised, that if errors were committed by his reporter, they should, on application, be instantly rectified. more than this it was impossible to desire, for no mode of conduct could be more liberal or candid. but mr. s. did not see the propriety of blending the house of representatives and the editor of a newspaper in this business. the stenographer is to be called an officer of the house, while he receives eleven hundred dollars from the printer of a philadelphia newspaper. he is thus also the officer of the printer, as well as ours. if we give the gentleman the proposed salary, we are to depend on him alone, whereas at present we have different reporters, and two or three of them frequently and mutually both corroborate and correct each other. what has escaped one reporter, or what he has misunderstood, is often observed by his competitor. the error is amended, or the defect supplied. mr. s. farther observed, that as far as he had read or heard of, such an institution as the one now proposed, was never known under any government, or in any country, that had hitherto existed. [it was observed, in some part of the debate, that an attempt of this kind was once made by the national assembly of france.] mr. s. expressed himself warmly against government making any composition of the nature now proposed with a printer, and against any attempt for giving one newspaper an advantage over another, by any preference as to the copy. if mr. s. wanted any person to be sure of dismission and disgrace, he could not name any other situation where that dismission and disgrace were so absolutely certain, as to a person accepting the proposed office of stenographer. if he did his duty, gentlemen would frequently not like to see their speeches exactly as delivered. if he altered them, his utility was at an end. it would therefore be much better to let the gentleman stay at his own business. mr. giles objected particularly to the opposition made in this late stage of the business. he admitted that it was a delicate step, but he complained in strong terms of the inaccuracy of the reports now given. he observed that the object was not merely to find a stenographer who would satisfy the members of that house, but who would also give satisfactory information to the public at large. mr. sherburne agreed with the gentleman last up, that the object of the resolution could not be merely to give satisfaction to members, but information to the public; though if it was important that the public should be informed of what was said in that house, the proposed resolution would be inadequate to its objects. but he conceived it more important for the public to be informed of what was done, and that, he observed, was not always to be inferred from what was said; as (the mind being always open to conviction) it had not been unusual in a former--he would not say the present--house, for gentlemen to argue one way, and vote another. as therefore, no certain inferences of the conduct of members would be drawn from their speeches, and as the public were more interested in their actions than their sayings, (a knowledge of which the present resolution was not, in his opinion, calculated to promote,) it would not meet his concurrence. but, mr. s. further observed, that if the speech was to be considered as the infallible _inditium_ of the subsequent conduct, as the avowed object of the resolution was to diffuse, through the various parts of the states a knowledge of that conduct, he should oppose it from a conviction that the means were not competent to the end. the resolution proposed a publication of the debates in a daily philadelphia paper. these debates would necessarily be so voluminous as to engross the greater part of such a publication. except in philadelphia, new york, and one or two other large cities, there were no daily papers; in all other places, they were not published oftener than once, or, at most, twice, a week. the daily papers, in comparison with others, were few. if, therefore, a daily paper was engrossed by a detail of the debates, when would the public arrive at a knowledge of them through the more common medium of a weekly paper? the inhabitants of this, and a few other large towns, might be gratified, perhaps benefited, by a speedy perusal of them; but when would the citizens of more distant parts of the union, through their usual weekly channels, be indulged with the like opportunities? the difference would be as one to six; and what the inhabitants of philadelphia might become acquainted with in one year, the people of new england and georgia would not be informed of in six years, unless they relinquished their own weekly publications for a philadelphia paper. mr. sedgwick said, that he would candidly confess that the house had put itself in a delicate situation on this subject; yet if, on the whole, gentlemen be of opinion that the measure was improper, it ought not, by reason of any antecedent conduct, to be now further pursued to the public detriment. it was also but just to say, that if the measure was proper, a more competent and more impartial agent than the one proposed could not be obtained. he said that the printers had much merit from their endeavors to communicate to the public the debates of the house, yet it must be allowed that their endeavors had been too unsuccessful; that, in consequence, much injury had been done, not only to the characters of gentlemen as men of talents, but also in some instances, to the motives which had produced public measures. these were evils to which a remedy should be applied, if it did not involve those which would be more injurious. it ought to be remembered that the man appointed would be an officer of the house, responsible to it for his fidelity and accuracy. the debates would then be published under authority of the house, and it of consequence was responsible for his precise execution of the trust. it was impossible to conceive that at some times, with the best intention, he should not mistake, and of course misrepresent. the member in such a situation, would feel the injury, but redress would be obtained only by the interposition of the house. this would afford ground for numerous appeals, and endless litigation; and, in the end, might be ruinous to many valuable and respectable characters. it was of importance that no constraint should exist which would prevent gentlemen from expressing freely and without fear their own feelings and opinions and those of their constituents. how far the fear of misrepresentation, and the difficulty of correcting it, under such a system, would produce such an effect, gentlemen he hoped would consider before they assented to this proposition. there was one other consideration, which had great weight on the mind. whatever opinion we might entertain on the subject at present, all would remember the powerful influence of party and faction, and their intimate connection with free governments. from hence it might be easy to conceive, that hereafter this might be rendered the most powerful engine of an unprincipled majority, to overawe and to prostrate and destroy a virtuous minority. for no character was so established as to withstand for any length of time constant misrepresentation supported by the authority of the house of representatives. mr. harper rose in reply to mr. sedgwick, who, immediately after he began speaking, observed that the gentleman had mistaken his meaning. mr. h. said that he perfectly understood the member, and proceeded to recommend the object of the report. he gave credit to the present reporters for diligence and good intention, but thought them far inferior to what might be done. great attainments had been made, he admitted, but more might be done. he thought it of the highest consequence that the speeches of members should be correctly published and disseminated among the people. as to the sum now proposed, a london newspaper would give, he had no doubt, five thousand dollars a year for such a reporter. he questioned not that woodfall would receive ten thousand pounds a year from the printer for his reports. it had been objected that daily papers alone could hold such debates; but weekly and semi-weekly papers could select the most interesting passages of them from the daily papers. mr. h. recommended either that this report or a similar one should be adopted, or that the business of reporting should at once be put to an end. he spoke of _atrocious_ mistakes. the debates, as now published, held up the house to the scorn of the world. he would rather have the doors shut up altogether. he would, if the present resolution was rejected, make a motion to that effect. he was sorry to learn that the debates had been collected into a book, entitled "the political register," of which he doubted not that immense numbers would be sent to europe, and this book he reprobated in the strongest terms. mr. sedgwick observed, if gentlemen were misrepresented, in one of the newspapers, where debates were reported, the editor of that paper had advertised that he was ready to publish any corrections which might be offered. this notice had been long and frequently given, and gentlemen had it in their power to do themselves justice. the first resolution in the report was then read, and the question going to be put, when mr. baldwin said, that the more the house advanced into this affair, the greater was the number of difficulties which occurred. the resolutions had the less weight with him because they were hurried through at the close of last session. the institution was unprecedented in any other government. he knew that members might be misrepresented, but this scheme would not cure the evil. he repeatedly declared, that on all great questions, where talents found an object worth exertion, the debates in that house were very well represented. he had seen many speeches, sketched by printers in this city, that he would not wish to see better done. he did not know of any recent or particular complaints about inaccuracy. we have now been in session for seven or eight weeks, and there has not occurred much interesting matter, to make any remarkable debate out of he said that the debates, if taken at full length, would far exceed the limits of any newspaper. as to the expense of printing, that of the laws of this session would cost twenty thousand dollars, and he conjectured that to print the speeches, would require a hundred thousand dollars; and even after they were printed, it would be necessary to pay people for being at the trouble to read them, for otherwise nobody would go through a perusal of every word spoken in the house. mr. nicholas said, that the reports at present published were full of notorious falsehoods, and the characters of members with their constituents would have been sunk, if it had not been known that this kind of things deserved no credit. he was in favor of the report. he complained that even when pieces were sent to the printers, they were embodied in the sketch, by which means the reporter got the full credit of them, which had pernicious consequences. one of his objections to the present mode of reporting was, that the speeches of members were often much improved. he mentioned an instance from his own experience. a speech was once made for him by a person who reports in this house, and who has a very good style of writing. the style, said mr. n., was above mine. there was not a sentiment in it which i would have disavowed. it was a better speech than mine; but, in an entire column, there was nothing that i said. as for sending corrections to the printers, mr. n. was above it. mr. hillhouse was against the report. the loss of four thousand dollars would be a much greater harm to the public than any injury arising from inaccurate reports. he did not see that the characters of members with their constituents depended on these publications. mr. swanwick.--the gentleman from virginia last up has suggested that the house have somehow committed themselves to appoint a stenographer, by their previous resolution on this subject; but that resolution goes only to the committee receiving proposals. it therefore remains with this house whether to accept them or not when made. as to the gentleman who is the subject of the resolution, if i have more strenuously than usual opposed the motion, it is from a desire to keep him from quitting the lucrative situation he is said to find himself in, to embark on the stormy sea he is contemplating. to be the organ of the members of this house to their constituents is indeed a very delicate task; one for which, considering the danger he might be in of an orpheus's fate--that of being torn to pieces--the salary is but a poor compensation. he is to do justice to the eloquence of some members; he is to clothe in an elegant dress the uncouth, yet well-meaning expressions of others; but what will he do with the silent members, who never speak at all? what will their constituents think of them? indeed, sir, if he has the idea i have formed of his danger, he will not undertake it at all. faction and party have been mentioned: happy stenographer, if he can keep clear of these! if he fall into their power, insensibly he will represent one side in clouds and darkness, the other as ornamented with the brightest beams of light. how will he please both? misrepresentation is complained of: alas, sir, how quick is error--how slow is the progress of truth in almost all things! our stenographer must indeed be a wonder-working man, if he can revert this tide, and make every where light and correct reasoning prevail. the best mode of informing our constituents is, by the yeas and nays on our acts; this truly shows, as a gentleman from new hampshire has observed, our doings, which are much more interesting to them than our abstract reasonings; these our constituents will easily form to themselves ideas of, when they know our votes; as the celebrated dr. johnson is said to have written speeches for members of parliament whose general political sentiments he knew; by knowing these he applied arguments pretty accurately, as he supposed them to bear on every question offered. but, it has been observed, if we do not agree to have an official stenographer, a motion will be made to clear the house of those who now take down debates. these persons are tolerated only on the principle that our galleries are open. woodfall, a celebrated printer, took down debates from memory: could we prevent this being done here? or should we drive all printers from us who take notes, for the inaccuracies of some? i hope not. the liberty of the press has great title to respect. how can we agree by a miscellaneous union, the most strange, to commute with mr. brown, the printer, the salary of four thousand dollars, so as to possess him first of the proof-sheets, without supposing other printers will become rivals of this business, and complain if they are thwarted in an equal pursuit of their own livelihood? the best way is, to leave this business, like others, to regulate itself. mr. brown, by his labor in this way, has already widely extended the circulation of his paper--evident in his present overture--and, by the by, this is no mean proof of correctness on the whole in his success; he or others will still go on to improve the business, if left to themselves. if he or they fall into errors, they are their own. members may correct them, or write their own speeches out, if they please. but what has the house to do with this; or why should it become the censor and promulgator of the speeches of its own members? our time is wasted often, already, by too many long discussions on unimportant objects; but what would it be if we were to be every morning saluted with motions to correct the performances of the stenographers of the preceding day? all the advantage of the motion is to obtain more accuracy; but, it is said, the house means not to pledge itself for this accuracy: if so, why employ an officer under its authority for this purpose? on the whole, sir, we shall in vain seek to escape abuse and misrepresentation; these are by far too much in vogue. all the consolation left is, what i usually apply in such cases--that is, the consciousness of not deserving them. mr. gilbert was against the report. he thought the publication of the laws and the yeas and nays, a sufficient means to communicate the proceedings of the house. mr. wm. lyman said that the debates in one of the newspapers (he either named or plainly alluded to the philadelphia gazette) had, for the two last sessions, been altogether exceptionable. he was sorry to learn, that these debates had been collected by a person who comes here, so that they would now, perhaps, descend to posterity. if they were as incorrect in the volume (the political register) as they were in the newspaper, they were a libel on that house, and would disgrace it with the world. if this resolution was rejected, it would be advisable to send all the printers to the gallery. mr. kitchell was entirely against the object of the report. mr. giles said, that he might have taken up wrong impressions, but he thought the matter worth trying. it was a thing of experiment, by which he believed that the printer would make money. he acknowledged that, for some time past, several of the reports had been pretty correct. it is better to let them go out as they are, than to stop them altogether. he would not wish to press the motion, if it was to meet with opposition from several gentlemen who had this day spoken against it. he moved that the committee should rise, and the further consideration of the report be deferred till monday. mr. w. smith said, it was admitted on all sides, that it was highly important for the people to receive the most accurate information of the proceedings of the house, and that the debates were, in general, extremely misrepresented. was it not, then, the duty of the house to remedy this evil, and to adopt such measures as would transmit to the people in every part of the united states the most accurate information of the conduct of their representatives? the house had now an opportunity of obtaining the services of a gentleman peculiarly distinguished for the rare talent of reporting with accuracy public debates; the compensation which would be adequate to such useful and laborious service, was beyond the ability of any printer; the house ought therefore to contribute towards it; the sum required was a trifle, when compared with the advantages; it was no object. the only question, then, was, whether the stenographer ought to be an officer of the house; in that capacity he certainly would be more easily restrained from the commission of any wilful misrepresentation. mr. s. did not feel the force of the objections against the report. it had been said that, although the members were now misrepresented, yet, they had it in their power to publish corrections; but these corrections were often overlooked, while the misrepresentation was operating very injuriously to the character of the member; this was generally the case in places remote from the seat of government; the mangled account of a debate was republished in a distant paper, and the correction, if it reached the distant printer, was generally disregarded. among the opponents to this report, mr. s. said he was surprised to find the gentleman who represented this city, (mr. swanwick,) who, more than any other member, should have withdrawn his opposition to the measure proposed; that gentleman's constituents had it in their power, at any time, to hear the debates of congress; they were on the spot; ought he not, then, in candor, to assist in facilitating to the remote citizens the means of obtaining the best knowledge of the proceedings, and the most correct statement of the discussions of the house? ought they, from their remoteness, to be kept in the dark, or to be furnished with such light as would only mislead? had they not a claim on the house to adopt such means as would enable the citizens in every state to judge of the propriety of public measures? the member from this city had another exclusive advantage; if misrepresented, he could correct the error, and the correction would be read; that was not the case with the members from the remoter states, whose reputation might be injured by misrepresentation, without a similar advantage: the member from this city was in the midst of his constituents; he had daily opportunities of setting right any misstatement by personal explanation. mr. smith said, he did not agree with some gentlemen, that it was sufficient for the people to know what laws were passed, without knowing the previous discussions; he thought, on the contrary, the favorable or unfavorable impression of a law on the public mind, would depend, in a great degree, on the reasons assigned for and against it in debate, and the people ought to know those reasons. when a law passes, imposing a tax, would not the people be reconciled if they saw, from the discussions of the house, that such tax was unavoidable, and that the particular mode of taxation was the best which could be devised? and ought this information to depend entirely on the caprice or convenience of the reporters, who attended when it pleased them, and who published just as much of the debate as they found leisure or patience to accomplish? mr. s. said he was convinced that the errors which had excited so much complaint, were not the effect of design, but merely of inadequacy to the task. very few were competent to such a business, which required peculiar skill in stenography, very laborious application, and a clear comprehension of the subject-matter of debate. it could not be expected that persons thus qualified would devote their whole time to this business, without an ample reward. the report was objected to because there was novelty in the plan; it was true the house of commons of england had no such officer, but their practice was not a fit precedent for us on this occasion, for they admitted no person to write down, in the house, their proceedings; their debates were taken from memory. this house, on the contrary, had, from its first institution, facilitated, by every accommodation, the reporting their proceedings. the thing was not altogether, however, without precedent. during the existence of the national assembly of france, there were officers of the house who composed a daily work called the logography, which was an exact account of the debates of that body. it had been asked, what control the house were to have over this officer? he answered that the stenographer would be liable to be censured or displaced, if he should be guilty of wilful misrepresentation. it would be always easy to discriminate between a casual inadvertence and a criminal misstatement; the officer's character and talents, his responsibility to the house, and his oath to report with impartiality, would be a sufficient pledge of his accuracy. mr. s. seriously believed that the character of the house had suffered from the erroneous statements which had gone abroad. he wished to guard against this evil in future; he was willing, for himself, that every syllable he uttered within those walls should be carried to every part of the union, but he deprecated misrepresentation. he was anxious that the truth should be known in relation to every act of the government; for he was as satisfied that the affection and confidence of the people in this government would increase with the promulgation of truth, as that whatever it had lost of that affection and confidence, was owing altogether to the propagation of detraction and calumny. it was under these impressions that he had originally brought forward the proposition and that he now recommended the report, and having heard no reasons to change his sentiments of the expediency of the measure, he should persist in supporting it. the motion by mr. giles was agreed to. the committee rose, and, a few minutes after, the house adjourned to monday. monday, february . _indian trading houses._ the engrossed bill for establishing trading houses for the indian tribes was taken into consideration. the first blank was for the gross sum to be appropriated for the general objects of the bill. it was moved to fill this blank with $ , . mr. williams spoke in favor of the bill. mr. parker supported the general provision of the bill, and urged the necessity of an immediate attention to the subject. he calculated on a surplus in the appropriation for the war department to provide for this object. mr. harper moved that the bill should be recommitted. he then entered into a general consideration of the principles of the bill, which he reprobated altogether. alluding to the general objects of commerce, he said that public bodies never manage these matters without loss. he adverted to the repairs of roads, construction of canals, &c.; all these objects prosper under private individual direction, but when entered into by public bodies nothing is ever brought to perfection, and the public money is lost. he applied these ideas to the plan of the bill. persons at fifteen hundred or two thousand miles distance, are to be intrusted with public property to a large amount. it is not in human wisdom to guard against frauds and impositions; no check or control can be devised which will be found adequate to repressing private rapacity. mr. h., therefore, wished the bill recommitted, for the purpose of an entire new modification. if the motion should obtain, he should then move a resolution providing for a loan to individuals for the purpose. mr. swanwick supported the general principle of the bill, and reprobated the idea of loans to individuals; he considered such a plan as one of the worst kind of sinking funds. the plan is an experiment; it is not, perhaps, possible to predict what will be the result; but the object is worth the trial and worthy the attention of the legislature. he considered the objections against the plan of the bill as applying with greater force against the proposed substitute. mr. s. smith said, when the gentleman from south carolina made his motion for a recommitment, he had supposed he would have accompanied the motion with some reasons; but since he had heard what he offered as reasons, he found himself confirmed in his opinion of the inexpediency of his motion. mr. s. said, the only reason for the commitment was, that the principle of the bill might be changed, by individuals being substituted for the government, that is, by loaning the money to private persons for the purposes of the trade. he was entirely opposed to this principle. public debtors are the worst kind of citizens. these persons, after having expended or lost the money, will be coming forward with their petitions to be released from their bonds. he did not wish to increase the business of the committee of claims. mr. swift enlarged on the idea suggested by mr. harper. he thought it infinitely preferable to leave the business to the enterprise and resources of individuals. mr. harper rose in reply to mr. smith. he entered into a further consideration and defence of the plan he had proposed as a substitute. mr. dearborn objected to mr. harper's idea; he saw no sufficient reason to support the preference that gentleman gave to a loan to individuals. he was in favor of the general principle of the bill; he thought it economical to appropriate money for the object of cultivating good understanding and harmony with the indians, but should vote for the bill only on the condition of a reduction of the military establishment. mr. giles entered more largely into a consideration of the principle of the bill. he had no opinion of governmental bargains--he believed they always turned out losing bargains.[ ] the clause which provides that the original stock shall not be diminished, he conceived, would operate against the general object of the bill, if adhered to; but this he did not contemplate; he supposed that it would terminate in an annual provision. mr. g. alluded to the president's speech, a clause of which had been recited; he did not consider that, or a former recommendation of this matter, as binding on the house. if the president's speech is considered as the political bible of the government, the case is different; but he presumed no person was disposed to assert this. he considered the house as perfectly free to adopt or reject the proposition. with respect to the effects of the measure, gentlemen had differed in their predictions. predictions which were the nearest to the effects produced, may be considered as the result of the greater political sagacity. he would venture to predict that the whole sum proposed to be appropriated would be sunk in three years. with respect to the fund contemplated from the surplus of the war department appropriation, he considered it as altogether illusory; there is no such surplus, none had heretofore been found, and he presumed none ever would. for though the number of troops voted had never been raised, yet the whole of the money appropriated was always expended. some further remarks were made by several members, and then the motion for recommitting the bill being put, was lost-- to . mr. swift then renewed his motion for a postponement. this, after a few remarks from that gentleman, and a short reply from mr. gilbert, in support of the bill, was negatived. the motion for filling the blank with $ , , was then put and agreed to, fifty-six members rising in the affirmative. on reading the section in which the blank for the penalty is included, mr. venable moved for a partial recommitment of the bill, for the purpose of new-modifying the section. this motion gave rise to a variety of observations, in the course of which the motion was extended to a general commitment. this motion being put, was lost. the motion then was, to recommit the second, fourth, and sixth sections. the second section was recommitted. the fourth section provides that the capital stock of the united states embarked in this business shall not be diminished. mr. venable's object was to have the section so modified as to blend the interest of the individual who is to conduct the business with that of the public. mr. s. smith said the motion went to destroy the bill, for no person would engage in the business on such a plan. the motion for committing the fourth section was lost. the sixth section assigns the sum of $ , to be appropriated for the general objects of the bill. the motion to recommit this section was negatived. the house then resolved itself into a committee of the whole on the second section, mr. muhlenberg in the chair. mr. venable moved that the section should be altered to read, that the agent should give bonds to the amount in value of the goods committed to his charge. mr. j. smith supposed that the sum should be sufficient to cover the amount of the goods which may at any time be found in the hands of the agents; from ten to fifteen or twenty thousand dollars, he supposed, might be sufficient for this purpose. mr. dearborn suggested the idea of leaving this part of the business to the president of the united states. he moved to amend the clause accordingly. mr. venable's motion was lost. mr. dearborn's motion was agreed to. the committee then rose, and the chairman reported the amendment, which was adopted by the house. it was then ordered that the bill be again engrossed and read the third time to-day. [the bill was subsequently read a third time and passed-- members rising in the affirmative.] tuesday, february . the following message was received from the president of the united states: _gentlemen of the senate, and of the house of representatives:_ i transmit herewith the copy of a letter, dated the th of december last, from governor blount to the secretary of war, stating the avowed and daring designs of certain persons to take possession of lands belonging to the cherokees, and which the united states have, by treaty, solemnly guaranteed to that nation. the injustice of such intrusions, and the mischievous consequences which must necessarily result therefrom, demand that effectual provision be made to prevent them. g. washington. united states, _february_ , . the said message and letter were read, and ordered to be referred to the committee of the whole house, to whom is committed the bill to regulate trade and intercourse with the indian tribes, and to preserve peace on the frontiers. wednesday, february . lemuel benton, from south carolina, appeared, was qualified, and took his seat. monday, february . _compensation of members._ the house resolved itself into a committee of the whole, on the bill for allowing a compensation to the members of both houses, which proposes an annual salary of one thousand dollars to each member, instead of six dollars per day. mr. giles moved that the word "annually" be expunged from the bill. he thought the present mode of compensating the members of the legislature a good one, and could not conceive why an alteration should be made. such a mode of payment as was now proposed ought to be sanctioned only upon the maturest deliberation. mr. goodhue explained the reasons which induced the committee to propose an annual instead of a daily payment to members, which was, that members might be induced to greater despatch in business, and to do away an idea which had gone abroad amongst many people, that, being paid by the day, the members of that house protracted their session to an unreasonable length. mr. giles thought there ought to be no pecuniary inducement to members to push forward business in too rapid a manner, or to shorten their sessions. an annual salary would doubtless have this effect, and business, in consequence, would most certainly be neglected. it would be an evil of the greatest importance; it would be a constant temptation to members to neglect their duty; it would tend to embarrass all their deliberations. indeed, it was a perfectly new mode of requiting representatives, and would be supposed to be introduced for the purpose of advancing their pay--an idea which he did not wish to prevail, as he thought the present allowance sufficient. he therefore hoped the principle would not be agreed to. mr. swanwick was against the bill, and said, that to pay members in the way proposed would be to offer them a bounty to neglect the business of the legislature. mr. hillhouse was in favor of the bill. he said, that the constitution had provided that congress should meet once a year, and that more time was spent during their sitting than was taken up by the circuits of the judges. yet the judges had a salary allowed them, and it was not found to have any bad effect. complaints are now made out of doors that their sessions are protracted for the sake of the daily allowance paid to them. persons who said this, said he, do not know that we are all the time deeply engaged in business, which is much lengthened by clashing interests of different states. a yearly salary would do away this idea, without making any real difference in the amount paid by the treasury for their services. if he thought the mode of payment would cause members to neglect their duty, as has been observed, he too would be against the adoption of it; but surely it cannot be supposed that members would not sit as long as business should require them. he observed, they had now been in session two months, and but very little important business had been done. he thought the mode proposed would tend to remedy this evil: it was an experiment at least worth trying. mr. findlay did not object to the bill merely as a novelty, but because it offered no advantage. many persons, no doubt, would think one thousand dollars a year too much; but he believed it best for members to do their duty, without regarding the misapprehensions and prejudices of they know not whom. he did not think the pay of members influenced their sittings. the greatest difficulty, towards the close of the session, was to keep members together. if, indeed, members would attend better at the beginning of a session, and take up less time in speaking, sessions might be shorter; but there must, however, be full liberty given to every member to express his sentiments in his own way. no law can regulate people's conceptions. he thought it best that the members should be paid by the day. he should never boast of passing laws in a short time, but of passing good laws. mr. nicholas was in favor of the present mode of compensating members, as the period of their sessions was uncertain, and wherever salaries were paid, they were for certain business. give members one thousand dollars, and he did not doubt but some of them would wish to return home sooner than if they had been paid in proportion to the time spent in business. water, though insensibly, wears away stones; and such an influence, he feared, would have a tendency to undermine the integrity of members. it was better to be slow than too hasty in business. he hoped this bill would not pass as an experiment, for the effect must be corruption; and when once this enemy of all governments is suffered to take root, it is difficult to eradicate it. indeed, this bill would be supposed by many as a cover to advance the pay of members. if there were any such view, he wished members to propose the measure openly. he thought the present pay too much, and if the people thought it influenced the length of their sittings, they were of the same opinion. mr. williams was against the bill, though he believed it to be brought in by the committee from the best of motives. it was their opinion it would shorten the sessions, and, if carried into effect, it might do so. if our wages were lowered, the measure would shorten our sessions. every penny beyond expenses is too much: a medium salary was desirable. if the pay of members was increased, officers of government will do the same. at present, it was true, all the necessaries of life were at a high price; but when the war in europe ceases, the case will be different. whenever we adjourn our sessions, (said he,) much business is necessarily left unfinished; and if members were paid by the year instead of by the day, all those whose business was not completed would be ready to say that members were hastened away to enjoy their salary at home. mr. sedgwick did not think the business before the house important. he was inclined, however, to favor the bill, not that he would grant a larger amount in that way than the amount of the present allowance per day. the argument of novelty, he said, would not apply: we are in the business of experiment. he would observe a fact well known, that every member in the house was deprived of the opportunity of pursuing his occupations at home, and of the emoluments arising therefrom, by his attendance to public business. he did not believe a yearly allowance would shorten the sessions, but it would remove the charge brought against members of protracting the sessions for the sake of their pay. whether it is necessary to increase or diminish the present pay is not the question. mr. livingston expected stronger motives for the bill than he had heard. it is acknowledged a perfect novelty. this, though by no means decisive, is an objection against the measure, and there is nothing else to recommend it. it has, indeed, been said, it will shorten our sessions; but would this be a benefit? if to continue in session be an evil, why are we here? if it could have been proved that expense would have been saved by the measure, that would have been a real advantage; but this has not been hinted at. it has, indeed, been said, it will remove from our constituents a suspicion that we are living here too long. it has been said, that an idea has gone abroad that we receive six dollars a day through the year. few, he believed, were so ill informed; but this bill, if passed, will cause much more discontent than the present pay occasions. deliberation in a legislative body is necessary. the dearest interests of the people, he said, were committed to their charge, and he trusted they would watch over them, and never suffer them to be injured; and then, it was his opinion their constituents would not think much of their pay. mr. baldwin said, that it was a disagreeable business to be employed in discussing the subject of paying themselves for their services: it would be a desirable thing to supersede the necessity of doing so. the committee doubtless thought one thousand per annum would be an improvement upon the present mode of paying members, but he could not think so. he thought it best that the allowance should be paid in the old way. mr. gilbert was willing to try the experiment of the bill proposed. he did not believe that either the present daily allowance lengthened, or that an annual salary would shorten, the sessions. he thought to say the contrary was a base insinuation. mr. bourne never heard it was the wish of their constituents that their payment should be annual instead of per day. he had heard it complained that their pay was too high; but now, since the price of living is so much advanced, he believed the people were satisfied. he saw no advantages from the proposed change. it cannot be thought that the pay is an inducement to members to prolong their sessions: he had not heard such a complaint. he was in favor of striking out the word "annually," and for recommitting the bill. mr. madison observed, that the present bill proposed no alteration with respect to the amount of money to be drawn from the treasury, and it can make but little difference to members. what had been mentioned as the advantages of this bill, in his opinion, would operate against it. a novelty, he said, always called for hesitation. mr. swanwick thought, if they enacted good laws--laws that should encourage agriculture and commerce--their constituents would not trouble themselves about their salary. mr. giles rose to remark upon an expression which fell from mr. gilbert, viz: that, to say members were likely to be influenced by the proposed salary, was a vile insinuation. he declared that it was a recommendation of the bill in the committee, that it would tend to shorten their sessions. mr. gilbert explained, and justified the expression. the motion for striking out the word "annually" was called for, and passed.[ ] tuesday, february . fisher ames, of massachusetts, appeared, was qualified, and took his seat. thursday, february . _post roads from maine to georgia._ mr. madison moved that the resolution laid upon the table some days ago be taken up, relative to the survey of the post roads between the province of maine and georgia; which, being read, he observed that two good effects would arise from carrying this resolution into effect; the shortest route from one place to another would be determined upon, and persons, having a certainty of the stability of the roads, would not hesitate to make improvements upon them. mr. baldwin was glad to see this business brought forward; the sooner it could be carried into effect, the better. in many parts of the country, he said, there were no improved roads, nothing better than the original indian track. bridges and other improvements are always made with reluctance whilst roads remain in this state, because it is known as the country increases in population and wealth, better and shorter roads will be made. all expense of this sort, indeed, is lost. it was properly the business of the general government, he said, to undertake the improvement of the roads, for the different states are incompetent to the business, their different designs clashing with each other. it is enough for them to make good roads to the different seaports; the cross roads should be left to the government of the whole. the expense, he thought, would not be very great. let a surveyor point out the shortest and best track, and the money will soon be raised. there was nothing in this country, he said, of which we ought to be more ashamed than our public roads. mr. bourne thought very valuable effects would arise from the carrying of this resolution into effect. the present roads may be much shortened. the eastern states had made great improvements in their roads, and he trusted the best effects would arise from having regular mails from one end of the union to the other. mr. williams did not think it right for the revenues of the post office to be applied to this end. he acknowledged the propriety of extending the post roads to every part of the union; he thought the house had better wait for the report of the committee to which business relative to the post office had been referred, which was preparing to be laid before the house. mr. madison explained the nature and object of the resolution. he said it was the commencement of an extensive work. he wished not to extend it at present. the expense of the survey would be great. the post officer, he believed, would have no objection to the intended regulation. after some observations from mr. thatcher, on the obtaining of the shortest distance from one place to another, and the comparing old with new roads, so as to come at the shortest and best, the resolution was agreed to, as follows: _resolved_, that a committee be appointed to report a bill authorizing the president of the united states to cause to be examined, and, where necessary, to be surveyed, the general route most proper for the transportation of the mail between ----, in maine, and ----, in the state of georgia, and to cause to be laid before congress the result of such examination and survey, with an estimate of the expense of rendering such route fit, in all its parts, to be the established route of the post; the expense of such examination and survey to be defrayed out of the surplus revenues of the post office.[ ] _ordered_, that mr. madison, mr. thatcher, mr. baldwin, mr. henderson, and mr. sherburne, be appointed a committee pursuant to the said resolution. monday, february . _washington's birth-day._ mr. w. smith moved that the house adjourn for half an hour. this motion occasioned a good deal of conversation upon its propriety. in favor of it, it was said, that it had been a practice ever since the commencement of the government, for that house to make a short adjournment on that day in order to pay their compliments to the president, and that several members were absent, from an idea that the house would adjourn at o'clock as usual. on the other hand, it was objected that it was the business of the members of that house first to do their duty, and then attend to the paying of compliments; that just at that time the house of the president was filled with militia and others; and that, therefore, it would be better, upon the whole, to wait upon the president after the business of the day was finished. mr. gallatin moved that the words "half an hour" be struck out. the sense of the house was first taken on the amendment, which was lost, without a division. the motion was then put and negatived, being for it, and against it. friday, february . _compensation to members._ mr. giles moved that the bill for allowing compensation to the members of the senate and house of representatives, and certain officers of both houses, be taken up, which being agreed to, the house resolved itself into a committee of the whole; and the bill being read, mr. swift wished to strike out the words making the speaker a greater allowance than other members. mr. giles thought a larger allowance ought to be made to the speaker than to other members, as his duty was double that of any other member; but if gentlemen wished to do away the incidental expenses of the office, he had no objection. mr. swift consented to vary his motion according to the ideas of the member from virginia. if the speaker had more duty to perform than other members, he should be willing to make him a greater allowance, but he doubted it. mr. w. smith hoped no alteration would be made in the allowance heretofore made; he saw no reason for it. mr. goodhue said, he voted against the additional pay allowed the speaker when the act first passed, as he saw no necessity for the speaker to give dinners to the members of that house; but though he objected to this, he was willing to allow him recompense for his additional services. he hoped, however, the gentleman who now so ably filled the office, would not consider any thing said on this subject as alluding personally to him. mr. sedgwick was willing to give the money to the speaker which had heretofore been paid him, and for the same purpose, although he and his colleague were both against the measure when it originally passed. mr. dayton wished the business might be discussed without reference to him personally. indeed he believed he should not be materially affected by any regulations which might be agreed to, as, if he might judge by his present feelings, his health would not permit him to remain in the chair after this session. mr. giles was confident that no one meant to hurt the feelings of the gentleman who now filled the chair. the member from massachusetts had said, when the measure passed, he was against it, but now he was in favor of it. he could see no ground for this change of sentiment. mr. g. said, he was against the money being paid for incidental expenses, but not against making the speaker ample allowance for his services. mr. kitchell was also for striking out the words, but for making ample compensation to the speaker. mr. bourne did not suppose that the incidental expenses of the speaker were confined to the dinners which he gave them; he was put to more expense in receiving company than other members. he did not think six dollars a day too much for this. mr. madison said, it was customary in all the state governments to make the speaker a greater allowance than other members: his services were far greater; they were uninterrupted. besides, it was necessary to do so to invite men of talents to accept of the office; and every one knew the advantages arising from having a man of talents as speaker. without inquiring whether the compensation was too large or too small, he doubted whether it was constitutional to make any alteration in it which might affect the present speaker. to support his opinions he read a clause of the constitution. mr. hillhouse was of opinion that nothing in the constitution extended to the present question. he hoped they should agree to strike out the words alluded to, as the sooner the practice of feasting was abolished, the better. if members wished to form social acquaintances, it was far preferable to visit each other at their lodgings. he said, this was the first time the law had come under review since it had passed, and it was proper to have the matter settled. he wished to allow a reasonable sum for the services of the speaker, but no more. he did not think there was any weight in the observation, that a large compensation was necessary to induce men of talents to accept of the chair--he thought the honor was a sufficient inducement. mr. williams said there was no office appertaining to the speaker which included expense; the words ought therefore to be struck out. mr. page was in favor of striking out the words, as he did not understand their meaning, but in favor of keeping the allowance of the speaker the same as usual. the speaker, he said, ought to be placed in an independent situation, by a handsome salary. his duties were fourfold to those of any other member. indeed, said he, nothing but a sense of duty could induce a man to undertake such an office. mr. giles said, if it was agreed to strike out the words _for the incidental expenses of his office_, he should move to introduce in their place, "_on account of extra services annexed to his office_." mr. jeremiah smith liked the words proposed better than those in the bill, but did not think it of the importance it was made. the motion for striking out was put and carried. mr. giles then proposed his motion. mr. hillhouse was against the introduction of these words. mr. varnum hoped the motion would prevail. the services of the speaker are extraordinary and laborious. the state legislatures, he said, always allowed their speaker double the pay of other members. mr. murray hoped the words would not obtain. he considered the speakership of that house as a very elevated situation. in certain contingencies he believed he was the chief executive of the united states. he thought the calculation of pay too mechanical. the dignity of the office was sufficient, without extraordinary compensation; the duties of it were well known. the question was put, and negatived. mr. giles moved to fill up the blank for the daily allowance of members of the senate with six dollars. mr. page proposed seven; when, after a few observations from mr. williams in favor of six, the sense of the house was taken, which was in favor of six dollars--only twenty-one members rising in favor of seven. the allowance of the speaker again coming into consideration, mr. swift wished an inquiry might be made into the duties of the office. it was his opinion that many members upon committees performed greater services than he; and if the speaker had an extra allowance, they ought to have an extra allowance also. some gentlemen thought, on the score of dignity, a high salary ought to be paid. he thought differently. can it be supposed it would be necessary, said he, to give any member of this house double pay to accept of the office? no such thing. being now discharged from any obligation to treat members, he could not agree to allow him the usual sum. he should not object to two or three dollars a day extra, but no more. mr. giles thought the duty of the speaker three times as arduous as that of any other member of the house. mr. crabb voted for striking out the words, but he was not for diminishing the salary of the speaker. the motion for the usual allowance was put and carried, and the other blanks of the bill were filled up with the same sums as heretofore allowed to the different officers. the committee rose; the bill then went through the house, and was ordered to be engrossed and read a third time on monday. monday, march . _the treaty with great britain._ [the debate on the subject of the treaty with great britain, and of the constitutional powers of the house with respect to treaties, having occupied the time of the house nearly every day for a month, (commencing the th of march and ending on the th of april,) it is deemed preferable, and as being more acceptable to the reader, to present the whole in one body consecutively, rather than to spread it in detached parts intermixed with other subjects, through the general proceedings of each day. this debate, as here given, possesses a character for authenticity and correctness which does not belong to the newspaper reports of the day, it having undergone the careful revision of the speakers themselves. the debate which took place on making the provision for carrying the treaty into effect, will be found subsequently, in the proceedings of each day as the subject came up before the house.][ ] on the second of march, mr. livingston, after stating that the late british treaty must give rise in the house to some very important and constitutional questions, to throw light upon which every information would be required, laid the following resolution upon the table. "_resolved_, that the president of the united states be requested to lay before this house a copy of the instructions to the minister of the united states, who negotiated the treaty with the king of great britain, communicated by his message of the first of march, together with the correspondence and other documents relative to the said treaty." march .--mr. livingston said he wished to modify the resolution he had laid on the table, requesting the president to lay before the house sundry documents respecting the treaty. it was calculated to meet the suggestions of gentlemen to whose opinions he paid the highest respect, and was founded in the reflection that the negotiations on the twelfth article were probably unfinished; and therefore, he said, a disclosure of papers relative to that or any other pending negotiation, might embarrass the executive. he wished, therefore, to add, at the end of his former motion, the following words: "excepting such of said papers as any existing negotiation may render improper to be disclosed." the motion of mr. livingston was then taken up. mr. tracy requested gentlemen in favor of the resolution to give their reasons why the application for papers was to be made. mr. livingston said, he had no wish to conceal his intentions. the motives that impelled him to make the motion, were not such as to make him wish to conceal them, or such as he ought to blush at when discovered. the gentleman from connecticut wished to know why he had brought this resolution before the house? he did it for the sake of information. that gentleman wished to know to what point this information was to apply? possibly to all the points he had enumerated. it was impossible, however, to say to which or how many of these points without a recurrence to those very papers. he could not determine now, he said, that an impeachment would be deemed advisable; yet, when the papers are obtained, they may make such a step advisable. it was impossible to declare an impeachment advisable, without having the necessary lights as to the conduct of officers. the house were, on every occasion, the guardians of their country's rights. they are, by the constitution, the accusing organ of the officers employed. the information called for they ought to possess, as it would tend to elucidate the conduct of the officers. his principal reason, however, for proposing the measure, was a firm conviction that the house were vested with a discretionary power of carrying the treaty into effect, or refusing it their sanction. mr. murray said, that he was against the resolution for two reasons, which then struck his mind forcibly. the first was the want of a declared object within the acknowledged cognizance of the house; the other was because he believed it was designed as the groundwork of a very dangerous doctrine, that the house had a right to adjudge, to adopt, or to reject treaties generally. had the gentlemen stated the object for which they called for the papers to be an impeachment, or any inquiry into fraud, as a circumstance attending the making of the treaty, the subject would be presented under an aspect very different from that which it has assumed. he considered a treaty, constitutionally made, to be the supreme law of the land. the treaty in view has been negotiated and ratified, he thought, agreeably to the constitution. it has been issued, by the president's proclamation, as an act obligatory upon the united states. if the house mean to go into the merits of that instrument, and the information be called for with that view, he should feel himself bound by the constitution to give it every opposition. mr. baldwin thought the resolution so unexceptionable that he had expected it would have been agreed to without debate. the president has sent the house the treaty; petitions have come forward on the subject; the house must act in the business. it is yet unaccompanied with any documents to throw light upon it. no person concerned in the negotiation has a seat on the floor of the house; so that no oral information can be expected. implicit faith was not to be reposed, he imagined, in public officers. it would be unfair to take up the subject naked and unexplained. mr. gallatin said, he should not now enter into the merits of the question, but merely state that pertain powers are delegated by the constitution to congress. they possess the authority of regulating trade. the treaty-making power delegated to the executive may be considered as clashing with that. the question may arise, whether a treaty made by the president and senate, containing regulations touching objects delegated to congress, can be considered binding, without congress passing laws to carry it into effect. a difference of opinion may exist as to the proper construction of the several articles of the constitution, so as to reconcile those apparently contradictory provisions. but all those questions would occur in future discussions. what is now wanted is information on the subject, to elucidate the different views which may be taken of the treaty. it must do good to obtain it, and could do no harm to ask for it. if it would be improper to communicate any part of the information on the subject, the president will say so. he had hoped, he said, that the resolution would have passed without objection. he concluded by observing, that the house were the grand inquest of the nation, and that they had the right to call for papers on which to ground an impeachment; but he believed, that if this was intended, it would be proper that the resolution should be predicated upon a declaration of that intention. at present, he did not contemplate the exercise of that right. mr. madison admitted that every proposition, however distantly related to a question on the treaty, drew from the importance of that subject considerable importance to itself. in a discussion of this subject, he felt strongly the obligation of proceeding with the utmost respect to the decorum and dignity of the house, with a proper delicacy to the other departments of government, and, at the same time, with fidelity and responsibility for our constituents. the proposition now before the house, he conceived, might be considered as closely connected with this important question. it was to be decided whether the general power of making treaties supersedes the powers of the house of representatives, particularly specified in the constitution, so as to take to the executive all deliberative will, and leave the house only an executive and ministerial instrumental agency? mr. smith (of south carolina) said, that he had listened attentively to the reasons advanced in favor of this resolution, and that he had heard nothing to convince him of its propriety. the president and senate have, by the constitution, the power of making treaties, and the house have no agency in them, except to make laws necessary to carry them into operation; he considered the house as bound, in common with their fellow-citizens, to do every thing in their power to carry them into full execution. he recognized but one exception to this rule, and that was, when the instrument was clearly unconstitutional. in this case, he remarked, it had not been said that the treaty was unconstitutional. when the resolution was first brought forward, it had indeed been observed, that the discussion might involve certain constitutional points, and, therefore, the papers called for by the resolution were necessary; but it was obvious, the question of constitutionality should be determined from the face of the instrument, and that a knowledge of the preparatory steps which led to its adoption, could throw no light upon it; that ground was therefore abandoned even by the friends of the resolution, and others were resorted to. he was surprised that gentlemen who displayed such zeal for the constitution should support a proposition, the tendency of which went indirectly to break down the constitutional limits between the executive and legislative departments. the constitution had assigned to the executive the business of negotiation with foreign powers; this house can claim no right by the constitution to interfere in such negotiations; every movement of the kind must be considered as an attempt to usurp powers not delegated, and will be resisted by the executive; for a concession would be a surrender of the powers specially delegated to him, and a violation of his trust. the proposition calls upon the president to lay before the house the instructions given to mr. jay, and the correspondence between him and lord grenville; and for what purpose? is this house to negotiate the treaty over again? has the constitution made this house a diplomatic body, invested with the powers of negotiation? is not this house excluded? for, if the maxim that "the expression of one is the exclusion of another," applies to this case, the assignment of the treaty-making power to the president and senate, is a manifest exclusion of this house. this call, then, on the president, is an attempt to obtain indirectly what the constitution has expressly assigned to others. after mr. s. had sat down, it was moved by mr. giles, to take the resolution up in committee of the whole for the purpose of more ample discussion. this motion was agreed to; sixty-one members rising in the affirmative. the house immediately resolved itself into a committee of the whole, on the resolution. mr. nicholas remarked, that the member from connecticut, first up, when inquiring for the reason of a call for papers, had suggested two. the one, relating to the merits of the instrument; the other, an inquiry into the conduct of officers concerned. on the latter ground, gentlemen conceded that the house had a right to require the papers, and yet seemed willing to adhere to that, on which they conceived a call could not be, with propriety, grounded, as the one that influenced the conduct of the friends to the resolution. all gentlemen admitted, that the house had the superintendence over the officers of government, as the grand inquest of the nation; but persisted that the resolution calling for papers, if intended for the purpose of exercising that authority, must be predicated on an expression of the intention. he took a view of the prominent features of the arguments of the members up before him. it had been said that, if the power of the president and senate, as to treaties, was complete, then the house had no right to claim a participation; this could not be denied; but the question was, whether the executive had that right unqualifiedly, in all cases. in the present case, he contended, the house had a voice. to elucidate: suppose that, in the constitution of the united states, which has been so guarded about the expenditure of money, a clause had been inserted, positively declaring that the house have a control over the money matters stipulated in a treaty; would not this constitute a qualification of the powers of the president and senate with respect to treaties? the constitution, on this head, he contended, though less explicit than his supposed case would make it, was not the less positive, if tested by all the fair rules of construction; and if compared with the practice of the government from which we had borrowed, with many other matters, this part of our constitution. in england, the country alluded to, their house of parliament had exercised a control over the moneyed articles of treaties; and he contended, the house of representatives had an equal authority here, as chief guardians of the purse-strings. it was unnecessary, at this time, he said, to touch on the other parts of the treaty which clashed with the constitutional powers of the house. he again adverted to the power of control that the house of commons have over treaties; and contended, that that provision of the british constitution had been accurately copied in our own with this deviation only, that the senate have the power of making amendments to money bills here, which the house of lords there have not. he could show, from the best authority, the acknowledgment of the british crown officers themselves, that the parliament has a right to discuss and decide on treaties which involved moneyed stipulations. the same power, he argued, resided in the house here; for shall it be said, that we have borrowed only the form from great britain, and not touched the substance? shall it be said, that the house have a discretion as to appropriations, and yet they must make them as directed by a treaty? if the house have no discretion to use in the business, they are the most unfit body to regulate money-matters; for complete regularity in so large a body must be one of the least of their valuable properties. but, with the power of appropriating money, the house have certainly the right to judge of the propriety of the appropriation. the constitution explains itself fully on this head. he instanced the specific power in the constitution, with respect to appropriations for the army, to explain from that instrument its meaning in other parts. the constitution says, that no appropriations for the support of armies shall be for more than two years; this is, no doubt, that the house may periodically have before them the question of the propriety of supporting an armed force, with all its consequences, and that they may, by refusing or granting an appropriation, determine on its existence. the power thus cautiously lodged must have been for some purpose, and that he had suggested could alone explain this clause of the constitution. this will show what was expected of this house in appropriating money; that they should judge of the usefulness of the expenditure. in the case of the army, the constitution does not say that we may disband an army by withholding money; but for the purpose of investing us with the same power, only requires that the appropriation should recur every two years; taking it for granted, that in this as well as in every other legislative act, we will duly weigh every consequence. having thus explained from the constitution itself the true meaning of this power of appropriation, he proceeded to elucidate it by a reference to the practice of the government. he found an instance in the permanent appropriations made for the payment of the public debt. if the house in this and analogous cases, could exercise no discretion as to appropriations, why this permanent provision, in preference to an annual appropriation? the permanency of the provision took its rise from the idea, that the house possessed a discretionary power as to appropriations. thus, he had shown that the practice of the government, the provisions of the constitution, and the example of the british, from whom we had exactly copied the control over money transactions, all proved a discretion in the house as to appropriations. this must be considered as a sufficient answer to the gentleman from south carolina, when he said, that the president and senate possessed the treaty-making power; for they possessed it with qualification, in matters of money; and unless the house chose to grant that money, it was so far no treaty. it was said, that if the treaty was not the law of the land, the president should be impeached for declaring it as such. parts of the treaty the president and senate had, no doubt, a right to make without any control of the house--those parts he might be considered as proclaiming; he proclaims it, limited as his authority, and under the qualifications provided by the constitution. it was said, that no instance of such a call as that now contemplated could be produced. no; nor of such a treaty, he answered. mr. swanwick expressed his sense of the importance of the subject before the house, and the pleasure which he experienced at observing the calmness and temper with which the discussion had been carried on. he had not conceived, however, that the decision of the present question involved the sense of the house as to the merits of the treaty; the object of the resolution was only to obtain that knowledge necessary for an enlightened decision; it had been observed, that the treaty had been censured by assemblages of people with precipitancy, and without proper information. they did this on the best information that could by them be obtained. but if the house should go into a committee of the whole, to take into consideration the treaty, without obtaining all the information in their power, they would be justly to blame. he adverted to the constitution; according to that instrument, the legislative power is completely vested in congress. by the th section of the st article, not only a certain specification of powers are granted to congress, to lay and collect taxes, regulate commerce, &c., but the very extensive further power, not only to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, but, also, all other powers vested by this constitution in the government of the united states, or in any department or officer thereof. if, then, congress have the power to pass laws to carry into execution all powers vested by the constitution in the government of the united states, or in any department or officer thereof, how is it possible that there can be any authority out of the purview of this general and extensive legislative control? is the treaty-making power not a power vested by the constitution in the government of the united states, or in a department or officer thereof? if it is, is the conclusion not obvious, that congress have power to pass laws for carrying these powers into effect? but in the power to pass laws, discretion is necessarily implied; of course, this house must judge when it is to act; whether it will, or will not, carry into effect the object in question. it is a power, it is true, of great delicacy and responsibility, but it is not less a power constitutionally given. the member from south carolina construed this part of the constitution in a different way, and insisted that, as the president and senate had the power of making treaties, the house were divested of the right of exercising their judgment upon the subject. if this doctrine prevails, to what a situation would the representatives of a free people be reduced? the constitution especially gives them the power of originating money bills; but to what purpose would this power be granted, if another authority may make a contract, compelling the house to raise money? suppose that authority were in this way to grant millions upon millions, must the house, at all events, be compelled to provide for their payment? in this case the house become mere automatons, mere mandarine members, like those who nod on a chimney-piece, as directed by a power foreign to themselves. great stress is laid upon the constitution declaring treaties laws of the land. this article has often been quoted partially, but not at large. it is in these words: "this constitution, and the laws of the united states, which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the united states, shall be the supreme law of the land." had the clause stopped here, there might have been some plea for the gentlemen's doctrine; but, unfortunately for them, the article goes on to say: "and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state, to the contrary notwithstanding." hence, it is obvious that the supremacy of the law is over the constitution and laws of the separate states, which was necessary to prevent these interfering with those. but it does not affect the powers of this house, as a component part of the general legislature, and authority of the united states. it is also worth while to notice the gradation in the article. first. this constitution. secondly. the laws which shall be made in pursuance thereof, clothed with the highest sanction of the nation, the consent of the three branches. thirdly. treaties. how absurd the doctrine, then, that these last, third in order, can repeal the second: at that rate, all power whatever would remain vested in two branches only of the government; the third, with all its powers of originating bills for raising revenue, would be dwindled into a mere board of assessors. the gentleman from vermont said, yesterday, that if the president and senate were to make a treaty, and that house were to refuse to make due appropriations for carrying it into effect, it would become a nullity, and no foreign nation would in future treat with such an uncertain government. mr. s. observed, that that gentleman would probably be surprised, when he was told, that the british house of commons possesses the same power which he reprobates in the legislative assembly of the united states. this, mr. s. proved, by reading the king's speech to both houses of parliament, in which he informs them of this treaty, and promises to lay it before them when ratified, in order that they might judge of the propriety of making provision to carry it into effect. what, judge of the propriety of passing laws to carry into effect a treaty ratified! and shall it be said, exclaimed he, that the representative assembly of the united states does not possess a privilege enjoyed by an english house of commons! he hoped not. mr. harper said, that it had not been his intention to trouble the committee, in this stage of the debate at least; nor should he now depart from his resolution on that head, had he not observed that the discussion was turning more and more on points, which it appeared to him unnecessary to decide. he did not conceive that the powers of the house respecting treaties were necessary to be considered; the question appeared capable of a satisfactory decision on different grounds. when the motion was first proposed, he thought it innocent at least, and was in doubt whether it might not be proper, because he was in doubt how far these papers might be necessary for enabling the house to exercise that discretion on the subject of treaties, which he admitted it to possess; but on a more accurate and extensive view of the subject, and after carefully attending to the discussion which had already taken place, he was thoroughly persuaded that these papers were no way necessary, and, that being unnecessary, to call for them was an improper and unconstitutional interference with the executive department. could it be made to appear that these papers are necessary for directing or informing the house on any of those legislative questions respecting the treaty which came within its powers, he should propose to change the milk-and-water style of the present resolution. the house, in that case, would have a right to the papers; and he had no idea of requesting as a favor what should be demanded as a right. he would demand them, and insist on the demand. but, being persuaded that no discretion hitherto contended for, even by the supporters of the resolution themselves, made these papers necessary to the house, to call for them would be an unconstitutional intermeddling with the proper business of the executive. it had been said, that this motion was of little consequence; that it was only a request which might be refused, and that the privileges of that house were narrow indeed, if it could not request information from the executive department. but it would be observed, he said, that requests from bodies like that, carry the force of demands, and imply a right to receive. legislative bodies often make the most formidable expressions of their will in the shape of requests. it would be further observed, that an honorable member from pennsylvania, (mr. gallatin,) after declaring that this indeed was only a request which might be refused, had added, that in case it were refused, it would then be proper to consider how far we ought to make the demand, and insist on receiving these papers as a matter of right. after this avowal of the system, after this notice that the present request is no more than a preliminary measure, a preparatory step, and in case of a refusal, is to be followed up by a demand, could it be wondered that they who think the measure improper, should oppose it in the threshold? mr. gallatin conceived that, whether the house had a discretionary power with respect to treaties, or whether they were absolutely bound by those instruments, and were obliged to pass laws to carry them fully into effect, still there was no impropriety in calling for the papers. under the first view of the subject, if the house has a discretionary power, then no doubt could exist that the information called for is proper; and, under the second, if bound to pass laws, they must have a complete knowledge of the subject, to learn what laws ought to be passed. this latter view of the subject, even, must introduce a discussion of the treaty, to know whether any law ought to be repealed, or to see what laws ought to be passed. if any article in the instrument should be found of doubtful import, the house would most naturally search for an explanation, in the documents which related to the steps which led to the treaty. if one article of the treaty only be doubtful, the house would not know how to legislate without the doubt being removed, and its explanation could certainly be found nowhere with so much propriety as in the correspondence between the negotiating parties. gentlemen had gone into an examination of an important constitutional question upon this motion. he hoped this would have been avoided in the present stage of the business; but as they had come forward on that ground, he had no objection to follow them in it, _and to rest the decision of the constitutional powers of congress on the fate of the present question_. he would, therefore, state his opinion, that the house had a _right_ to ask for the papers proposed to be called for, because their co-operation and sanction was necessary to carry the treaty into full effect, to render it a binding instrument, and to make it, properly speaking, a law of the land; because they had a full discretion either to give or to refuse that co-operation; because they must be guided, in the exercise of that discretion, by the merits and expediency of the treaty itself, and therefore had a _right_ to ask for every information which could assist them in deciding that question. one argument repeatedly used by every gentleman opposed to the present motion was, "that the treaty was unconstitutional or not; if not, the house had no agency in the business, but must carry it into full effect; and if unconstitutional, the question could only be decided from the face of the instrument, and no papers could throw light upon the question." he wished gentlemen had defined what they understood by a constitutional treaty; for, if the scope of their arguments was referred to, it would not be found possible to make an unconstitutional treaty. he would say what he conceived constituted the unconstitutionality of a treaty. a treaty is unconstitutional if it provides for doing such things, the doing of which is forbidden by the constitution; but if a treaty embraces objects within the sphere of the general powers delegated to the federal government, but which have been exclusively and specially granted to a particular branch of government, say to the legislative department, such a treaty, though not unconstitutional, does not become the law of the land until it has obtained the sanction of that branch. in this case, and to this end, the legislature have a right to demand the documents relative to the negotiation of the treaty, because that treaty operates on objects specially delegated to the legislature. he turned to the constitution. it says that the president shall have the power to make treaties, by and with the advice and consent of two-thirds of the senate. it does not say what treaties. if the clause be taken by itself, then it grants an authority altogether undefined. but the gentlemen quote another clause of the constitution, where it is said that the constitution, and the laws made in pursuance thereof, and all treaties, are the supreme law of the land; and thence, they insist that treaties made by the president and senate are the supreme law of the land, and that the power of making treaties is undefined and unlimited. he proceeded to controvert this opinion, and contended that it was limited by other parts of the constitution. the power of making treaties is contended to be undefined, then it might extend to all subjects which may properly become the subjects of national compacts. but, he contended, if any other specific powers were given to a different branch of the government, they must limit the general powers; and, to make the compact valid, it was necessary that, as far as those powers clashed with the general, that the branch holding the specific should concur and give its sanction. if still it is insisted that treaties are the supreme law of the land, the constitution and laws are also; and it may be asked, which shall have the preference? shall a treaty repeal a law or a law a treaty? neither can a law repeal a treaty, because a treaty is made with the concurrence of another party--a foreign nation--that has no participation in framing the law: nor can a treaty made by the president and senate repeal a law, for the same reason, because the house of representatives have a participation in making the law. it is a sound maxim in government, that it requires the same power to repeal a law that enacted it. if so, then it follows that laws and treaties are not of the same nature; that both operate as the law of the land, but under certain limitations; both are subject to the control of the constitution; they are made not only by different powers, but those powers are distributed, under different modifications, among the several branches of the government. thus no law could be made by the legislature giving themselves power to execute it; and no treaty, by the executive, embracing objects specifically assigned to the legislature without their assent. to what, he asked, would a contrary doctrine lead? if the power of making treaties is to reside in the president and senate unlimitedly: in other words, if, in the exercise of this power, the president and senate are to be restrained by no other branch of the government, the president and senate may absorb all legislative power--the executive has, then, nothing to do but to substitute a foreign nation for the house of representatives, and they may legislate to any extent. if the treaty-making power is unlimited and undefined, it may extend to every object of legislation. under it money may be borrowed, as well as commerce regulated; and why not money appropriated? for, arguing as the gentlemen do, they might say the constitution says that no money shall be drawn from the treasury but in consequence of appropriations made by law. but treaties, whatever provision they may contain, are law; appropriations, therefore, may be made by treaties. then it would have been the shortest way to have carried the late treaty into effect by the instrument itself, by adding to it another article, appropriating the necessary sums. by what provision of the constitution is the treaty-making power, agreeably to the construction of the gentlemen, limited? is it limited by the provisions with respect to appropriations? not more so than by the other specific powers granted to the legislature. is it limited by any law past? if not, it must embrace every thing, and all the objects of legislation. if not limited by existing laws, or if it repeals the laws that clash with it, or if the legislature is obliged to repeal the laws so clashing, then the legislative power in fact resides in the president and senate, and they can, by employing an indian tribe, pass any law under the color of treaty. unless it is allowed that either the power of the house over the purse-strings is a check, or the existing laws cannot be repealed by a treaty, or that the special powers granted to congress limit the general power of treaty-making, there are no bounds to it, it must absorb all others, repeal all laws in contravention to it, and act without control. to the construction he had given to this part of the constitution, no such formidable objections could be raised. he did not claim for the house a power of making treaties, but a check upon the treaty-making power--a mere negative power; whilst those who are in favor of a different construction advocate a positive and unlimited power. he read a quotation from _blackstone_, page , vol. i., to show that the power of treaty-making in england is as extensively vested in the king, as it can possibly be said to be here in our executive. the following is the passage alluded to: "ii. it is also the king's prerogative to make treaties, leagues, and alliances with foreign states and princes. for it is, by the law of nations, essential to the goodness of a league, that it be made by the sovereign power, and then it is binding upon the whole community; and, in england, the sovereign power, _quo ad hoc_, is vested in the person of the king. whatever contracts, therefore, he engages in, no other power in the kingdom can legally delay, resist, or annul." after such a latitude as this clause gives, it would be supposed that there could be no check reserved upon this power; yet it will be found that parliament have a participation in it. and the apparent inconsistency is easily reconciled, by observing that the power given generally to the executive of making contracts with other nations, does not imply that of making legislative regulations, but that when the contract happens to embrace legislative objects, the assistance of the legislature becomes necessary to give it effect. he proceeded to show the operation of this limitation of the treaty-making power in england by the practice of parliament. it was always considered as discretionary with parliament to grant money to carry treaties into effect or not, and to repeal or not to repeal laws that interfere with them. in citing instances of the exercise of this power, he should not go further back than their revolution. he then read several extracts from _anderson's_ history of commerce, vol. iii. pages , ' , ' , ' . they are so much in point that we transcribe the most material passages: "but we could not omit our animadversions on the eighth and ninth articles, as they were so extraordinary in themselves, and as they occasioned so great a stir and uneasiness at that time, as to have brought the whole treaty of commerce to miscarry then and ever since. "art. ix. that within the space of two months after a law shall be made in great britain, whereby it shall be sufficiently provided that not more customs or duties be paid for goods and merchandise brought from france into great britain than what are payable for goods and merchandise of the like nature, imported into great britain from any other country in europe; and that all laws made in great britain since the year for prohibiting the importation of any goods or merchandise coming from france, which were not prohibited before that time, be repealed, the general tariff in france, on the th of september, in the said year , shall take place there again, and the duties payable in france by the subjects of great britain for goods imported and exported, shall be paid according to the tenor of the tariff above mentioned. "when the said two articles came to be known by the merchants of great britain, they were received with the utmost surprise and indignation, and the clamor was loud and universal. "that the complying with those two articles would effectually ruin the commerce we carried on to portugal--the very best branch of all our european commerce. that the said eight articles did, in general terms, put france on an equal footing with portugal or any other of our best allies, in point of commerce." "this is, in brief, the sum of this mercantile controversy, which when brought into parliament, it was so apparent that our trade to france had ever been a ruinous one, and that if, in consequence of accepting the said eighth and ninth articles, the british parliament should consent to reduce the high duties and take off the prohibitions so prudently laid on french commodities, it would effectually ruin the very best branches of our commerce, and would thereby deprive many hundred thousand manufacturers of their subsistence; which was also supported by petitions from many parts of the kingdom: that, although a great majority of that house of commons was in other respects closely attached to the ministry, _the bill for agreeing to the purport of the said two articles was rejected by a majority of nine voices_, after the most eminent merchants had been heard at the bar of that house, to the great joy of the whole trading part of the nation, and of all other impartial people." thus it must be clearly seen, that the consent of parliament was not only deemed necessary to the completion of the treaty, but that that consent was refused, and that in consequence the treaty fell to the ground, and was not revived for a period of near eighty years, and all notwithstanding the plenitude of the treaty-making power, said by the best english authority, _blackstone_, to be vested in the king; which was, however, he repeated, necessarily checked by the special powers vested in parliament; for none but they could grant money, or repeal the laws clashing with the provisions of treaties. he cited another instance of the exercise of this controlling power in parliament of even a later date, viz: in the year , in the case of a treaty between spain and great britain, which was sanctioned by a very small majority indeed in parliament. he cited a third example from _anderson_, vol. vi., page , in the case of the treaty of commerce between france and great britain, to show that the practice of the parliament's interfering in treaties is not obsolete. the following is an article of the said treaty, which mr. gallatin read: "xiv. the advantages granted by the present treaty to the subjects of his britannic majesty shall take effect, as far as relates to the kingdom of great britain, as soon as laws shall be passed there, for securing to the subjects of his most christian majesty the reciprocal enjoyment of the advantages which are granted to them by the treaty. "and the advantages by all these articles, except the tariff, shall take effect with regard to the kingdom of ireland, as soon as laws shall be passed there, for securing to the subjects of his most christian majesty the reciprocal enjoyment of the advantages which are granted to them by this treaty: and, in like manner, the advantages granted by the tariff shall take effect in what relates to the said kingdom, as soon as laws shall be passed there for giving effect to the said tariff." upon this principle, founded on almost immemorial practice in great britain, did the minister of that kingdom, when introducing the late treaty with prussia into parliament, tell the house that they will have to consider the treaty and make provision for carrying it into effect. on the same principle, when the debate took place on that instrument, it was moved to strike out the sum proposed to be voted, which would have defeated it, and afterwards to strike out the appropriation clause, which would have rendered the bill a mere vote of credit, and would also have caused the treaty to fall to the ground. on the same principle, the king of great britain, when he mentioned the american treaty, promised to lay it before them in proper season, that they might _judge of the propriety_ of enacting the necessary provisions to carry it into effect. it remains to be examined, said mr. g., whether we are to be in a worse situation than great britain; whether the house of representatives of the united states, the substantial and immediate representatives of the american people, shall be ranked below the british house of commons; whether the legislative power shall be swallowed up by the treaty-making authority, as contended for here, though never claimed even in great britain? in great britain, he remarked, the treaty-making power is as undefined as in america. the constitution here, declares that the president and senate shall make treaties; there, custom says as loudly, that the king shall make them. in great britain, however, the power is limited, by immemorial custom, by the exercise of the legislative authority by a branch distinct from the regal; in the same manner is it limited here, not however merely by custom and tradition, but by the words of the constitution, which gives specifically the legislative power to congress; and he hoped this authority would be exercised by the house with as much spirit and independence as any where. if this doctrine is sanctioned, if it is allowed, that treaties may regulate appropriations and repeal existing laws, and the house, by rejecting the present resolution declare, that they give up all control, all right to the exercise of discretion, it is tantamount to saying, that they abandon their share in legislation, and that they consent the whole power should be concentred in the other branches. he did not believe such a doctrine could be countenanced by the house. if gentlemen should insist upon maintaining this doctrine, should deny the free agency of the house, and their right to judge of the expediency of carrying the treaty into effect, the friends to the independence of the house will be driven to the necessity to reject the treaty, whether good or bad, to assert the contested right. if the gentlemen abandoned this ground, then the policy of the measure could be weighed on fair ground, and the treaty carried into affect, if reconcilable to the interests of the united states. march .--in committee of the whole, on mr. livingston's resolution, mr. hartley delivered his sentiments as follows: as i was not present when this subject was first introduced, it cannot be expected that i should take any great share in the debate; but some observations i have heard, chiefly from the gentleman last up yesterday from pennsylvania, have induced me to show a few grounds for my vote. that gentleman has strongly combined this resolution with the treaty, and wishes that every one who holds that there should be a co-operation of this house respecting that instrument, should vote for the resolution. i think differently. the gentlemen who contend for the mighty power of the executive and senate, as well as those who argue for the great authority of this house, perhaps are on extremes; but the treaty ought not now to be so largely under consideration. i am willing, if it is thought proper, to take it up at an early day, and, after a full hearing, will vote as i hold right. the gentleman i referred to, from pennsylvania, argued most strenuously that the laws and customs of great britain and the constitution of the united states were analogous--nay, that the powers were precisely the same. the gentlemen who hold this doctrine have made researches, and have quoted several authorities; but why have not those ingenious gentlemen discovered a single instance where the british house of commons have had the instructions given by the executive to the negotiating minister laid before them. if there was such a power, no doubt that body would at some period have exercised it; for no men on earth have extended the power of privileges which they had further than the members of the house of commons of britain. as those gentlemen who contend for the likeness--indeed, sameness of the treaty-making powers of both countries--can show no precedent, it may be fairly contended, that no such right exists as is contemplated by the resolution. treaties are made under the executive in almost all countries, and when the ministers have gone through their part of the business, the treaty is commonly laid before the nation. if any national act is further necessary, it would pass in conformity to the principles of good faith; if any thing is necessary (consistent with the constitution) on the part of the house, it will be the discussion of another day. mr. griswold said, that the resolution on the table appeared at first view to be perfectly innocent, and, he might add, of very little importance. it amounted to no more than a request to the president to furnish the house with papers relating to the negotiation with great britain, which he might either satisfy or reject. but the discussion which had taken place in the committee, had given the subject a very serious aspect, and involved a question of the first importance; and although some gentlemen had thought that the committee had prematurely involved itself in the examination of the question, he could not see how the discussion could have been avoided. for gentlemen would not say that any resolution--more particularly a resolution calling on the president for documents belonging to the executive department--was to pass the house without a conclusive reason, much less without any reason for its passing. on this principle gentlemen had been called on at an early period for the reasons on which they grounded the resolution. they had attempted to assign reasons, but those reasons had been generally abandoned; and it could not at that time be seriously contended that the objects of general information or publicity, which had been first mentioned, could justify the house in calling on the president for papers relating to the british treaty, or that those papers were necessary to enable the house to judge of the constitutionality of the treaty. the friends of the resolution, aware of this, had at last come forward and assigned a new and a very important reason. it had been now said, that the house of representatives have a right to judge over the heads of the president and senate on the subject of treaties; that no treaty can become a law until sanctioned by the house; and, in fine, that the house of representatives is a constitutional part of the treaty-making power. if these facts and the principles which grow out of them are true, he could not say that the resolution was improper; and although he did not know to what part of the treaty the papers would particularly apply, yet, if the house were to take this extensive view of the treaty, and ultimately to sanction or reject it, it would seem that the papers relating to the negotiation ought to be laid before them. but if these facts are not true, and the house is not a constitutional part of the treaty-making power, and the treaty is already a law without its sanction, then the reason falls to the ground, and the resolution ought to be rejected. this inquiry into the powers of the house of representatives must be confined, and the question arising out of it must be decided by a fair construction of the constitution. the powers of each branch of the government are there limited and defined, and an accurate understanding of that instrument would enable gentlemen to decide the question. in comparing these questions with the constitution, gentlemen were not, however, to inquire whether that constitution was a good or a bad one; whether too much power had been given to this or to that branch of the government. the question will only be, what powers has the constitution given, and to what departments have the same been distributed? to render the subject as clear and distinct as possible, he thought it would not be improper to take an abstract view of those two powers in all governments having foreign relations which are immediately connected with the inquiry, viz: the legislative and the treaty-making power. and if gentlemen can clearly fix in their minds the limits of each, they will become better enabled to see their operation, and to decide on the powers of the house in the exercise of them. the legislative power in all governments is extremely broad; it occupies the most extensive ground; it extends to every object which relates to the internal concerns of the nation; it regulates the life, the liberty, and the property of every individual living within its jurisdiction; it can control commerce within its jurisdiction; govern the conduct of the nation towards aliens, in whatever capacity they may appear; and, in short, as certain english writers have said of the british government, its power is almost omnipotent. thus broad and extensive are the general powers of legislation, subject, however, to such particular restrictions as are prescribed by forms of government, or which occasionally arise from the nature of government itself, and limit the objects of its operation. it is easy to see, that in the exercise of these legislative powers, it will frequently happen that laws are enacted, which, in their operation, will embarrass the intercourse of two nations. such are always the effect of retaliating laws, and aliens within the limits of a foreign jurisdiction are frequently, by those regulations, subjected to great and unreasonable embarrassments. the treaty-making power operates in a very different manner; its power is limited and confined to the forming of treaties with foreign nations; its objects are to facilitate the intercourse between nations; to remove by contract, those impediments which embarrass that intercourse, and to place the same on a fair and just foundation. in the exercise of this power, it will unavoidably happen that the laws of the legislature are sometimes infracted. the legislature, for certain causes,--perhaps to compel a foreign nation to form a treaty on terms of reciprocity,--may prohibit all intercourse, or embarrass that intercourse with regulations so burdensome as to produce the same effect; the foreign nation finally becomes willing to treat, and to establish an intercourse on equitable terms. if, in this case, the treaty power cannot touch the laws of the legislature, the object which gave rise to those very laws can never be attained; no treaty can be formed, because it will oppose existing laws; those laws cannot be repealed, because the object for which they were enacted has not been attained. such a construction of the treaty power would defeat every object for which that power was established; and instead of possessing an authority to remove embarrassments in a foreign intercourse, it cannot touch them; and, although expressly created for the attainment of a single object, it can never attain it. from these considerations, he contended that, in the exercise of that power which related to the intercourse with foreign nations, the treaty-making was paramount to the legislative power; and that the positive institutions of the legislature must give place to compact. on this construction, a perfect harmony is introduced into the departments of government. both the legislative and the treaty power are necessary, on many occasions, to accomplish the same objects. the legislative power to establish regulations, or declare war, for the purpose of compelling a nation to agree to a reasonable compact; and the treaty power, when that nation is compelled to agree to such reasonable compact, to remove by treaty those very regulations, and the war itself, on fair and equitable terms. mr. madison said, that the direct proposition before the house, had been so absorbed by the incidental question which had grown out of it, concerning the constitutional authority of congress in the case of treaties, that he should confine his present observations to the latter. the true question, therefore, before the committee, was, not whether the will of the people expressed in the constitution was to be obeyed, but how that will was to be understood; in what manner it had actually divided the powers delegated to the government; and what construction would best reconcile the several parts of the instrument with each other, and be most consistent with its general spirit and object. on comparing the several passages in the constitution, which had been already cited to the committee, it appeared, that if taken literally, and without limit, they must necessarily clash with each other. certain powers to regulate commerce, to declare war, to raise armies, to borrow money, &c., are first specially vested in congress. the power of making treaties, which may relate to the same subjects, is afterwards vested in the president and two-thirds of the senate; and it is declared in another place, that the constitution and the laws of the united states, made in pursuance thereof, and treaties made, or to be made under the authority of the united states, shall be the supreme law of the land. and the judges, in every state, shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding. the term _supreme_, as applied to treaties, evidently meant a supremacy over the state constitutions and laws, and not over the constitution and laws of the united states. and it was observable, that the judicial authority, and the existing laws, alone of the states, fell within the supremacy expressly enjoined. the injunction was not extended to the legislative authority of the states, or to laws requisite to be passed by the states for giving effect to treaties; and it might be a problem worthy of the consideration, though not needing the decision of the committee, in what manner the requisite provisions were to be obtained from the states. it was to be regretted, he observed, that on a question of such magnitude as the present, there should be any apparent inconsistency or inexplicitness in the constitution, that could leave room for different constructions. as the case, however, had happened, all that could be done was to examine the different constructions with accuracy and fairness, according to the rules established therefor, and to adhere to that which should be found most rational, consistent, and satisfactory. he stated the five following, as all the constructions, worthy of notice, that had either been contended for, or were likely to occur: i. the treaty power, and the congressional power, might be regarded as moving in such separate orbits, and operating on such separate objects, as to be incapable of interfering with, or touching each other. ii. as concurrent powers relating to the same objects; and operating like the power of congress, and the power of the state legislatures, in relation to taxes, on the same articles. iii. as each of them supreme over the other as it may be the last exercised; like the different assemblies of the people, under the roman government, in the form of centuries, and in the form of tribes. iv. the treaty power may be viewed, according to the doctrine maintained by the opponents of the proposition before the committee, as both unlimited in its objects, and completely paramount in its authority. v. the congressional power may be viewed as co-operative with the treaty power, on the legislative subjects submitted to congress by the constitution, in the manner explained by the member from pennsylvania (mr. gallatin) and exemplified in the british government. the objection to the first construction is, that it would narrow too much the treaty power, to exclude from treaties altogether the enumerated subjects submitted to the power of congress; some or other of this class of regulations being generally comprised in the important compacts which take place between nations. the objection to the second is, that a concurrent exercise of the treaty and legislative powers, on the same objects, would be evidently impracticable. in the case of taxes laid both by congress and by the state legislatures on the same articles, the constitution presumed, that the concurrent authorities might be exercised with such prudence and moderation as would avoid an interference between their respective regulations. but it was manifest that such an interference would be unavoidable between the treaty power and the power of congress. a treaty of commerce, for example, would rarely be made, that would not trench on existing legal regulations, as well as be a bar to future ones. to the third, the objection was equally fatal. that it involved the absurdity of an _imperium in imperio_, of two powers, both of them supreme, yet each of them liable to be superseded by the other. there was, indeed, an instance of this kind found in the government of ancient rome, where the two authorities of the _comitia curiata_, or meetings by centuries, and the _comitia tributa_, or meetings by tribes, were each possessed of the supreme legislative power, and could each annul the proceedings of the other. for, although the people composed the body of the meetings in both cases, yet, as they voted in one, according to wealth, and in the other, according to numbers, the organizations were so distinct as to create, in fact, two distinct authorities. but it was not necessary to dwell on this political phenomenon, which had been celebrated as a subject of curious speculation only, and not as a model for the institutions of any other country. the fourth construction, is that which is contended for by the opponents of the proposition depending; and which gives to the treaty power all the latitude which is not necessarily prohibited by a regard to the general form and fundamental principles of the constitution. in order to smooth the way for this doctrine, it had been said that the power to make treaties was laid down in the most indefinite terms; and that the power to make laws, was no limitation to it, because the two powers were essentially different in their nature. if there was ingenuity in this distinction, it was all the merit it could have; for it must be obvious that it could neither be reduced to practice, nor be reconciled to principles. treaties and laws, whatever the nature of them may be, must, in their operation, be often the same. regulations by treaty, if carried into effect, are laws. if congress pass acts relating to provisions in a treaty, so as to become incorporated with the treaty, they are not the less laws on that account. a legislative act is the same whether performed by this or that body, or whether it be grounded on the consideration, that a foreign nation agrees to pass a like act, or on any other consideration. it must be objected to this construction, therefore, that it extends the power of the president and senate too far, and cramps the powers of congress too much. he did not admit that the term "treaty" had the extensive and unlimited meaning which some seemed to claim for it. it was to be considered as a technical term, and its meaning was to be sought for in the use of it, particularly in governments which bore most analogy to our own. in absolute governments, where the whole power of the nation is usurped by the governments, and all the departments of power are united in the same person, the treaty power has no bounds; because the power of the sovereign to execute it has none. in limited governments, the case is different; the treaty power, if undefined, is not understood to be unlimited. in great britain, it is positively restrained on the subjects of money and dismembering the empire. nor could the executive there, if his recollection was right, make an alien a subject by means of a treaty. but the question immediately under consideration, and which the context and spirit of the constitution must decide, turned on the extent of the treaty power in relation to the objects; specifically and expressly submitted to the legislative power of congress. it was an important, and appeared to him to be a decisive, view of the subject, that if the treaty power alone could perform any one act for which the authority of congress is required by the constitution, it may perform every act for which the authority of that part of the government is required. congress have power to regulate trade, to declare war, to raise armies, to levy, to borrow, and to appropriate money, &c. if, by treaty, therefore, as paramount to the legislative power, the president and senate can regulate trade, they can also declare war, they can raise armies to carry on war, and they can procure money to support armies. these powers, however different in their nature or importance, are on the same footing in the constitution, and must share the same fate. a member from connecticut (mr. griswold) had admitted that the power of war was exclusively vested in congress; but he had not attempted, nor did it seem possible, to draw any line between that and the other enumerated powers. if any line could be drawn, it ought to be presented to the committee; and he should, for one, be ready to give it the most impartial consideration. he had not, however, any expectation that such an attempt could succeed; and, therefore, should submit to the serious consideration of the committee, that, although the constitution had carefully and jealously lodged the power of war, of armies, of the purse, &c. in congress, of which the immediate representatives of the people formed an integral part, yet, according to the construction maintained on the other side, the president and senate, by means of a treaty of alliance with a nation at war, might make the united states parties in the war. they might stipulate subsidies, and even borrow money to pay them; they might furnish troops to be carried to europe, asia, or africa; they might even attempt to keep up a standing army in time of peace, for the purpose of co-operating, on given contingencies, with an ally, for mutual safety or other common objects. under this aspect the treaty power would be tremendous indeed. the force of this reasoning is not obviated by saying, that the president and senate would only pledge the public faith, and that the agency of congress would be necessary to carry it into operation. for, what difference does this make, if the obligation imposed be, as is alleged, a constitutional one; if congress have no will but to obey, and if to disobey be treason and rebellion against the constituted authorities? under a constitutional obligation with such sanctions to it, congress, in case the president and senate should enter into an alliance for war, would be nothing more than the mere heralds for proclaiming it. in fact, it had been said that they must obey the injunctions of a treaty, as implicitly as a subordinate officer in the executive line was bound to obey the chief magistrate, or as the judges are bound to decide according to the laws. as a further objection to the doctrine contended for, he called the attention of the committee to another very serious consequence from it. the specific powers, as vested in congress by the constitution, are qualified by sundry exceptions, deemed of great importance to the safe exercise of them. these restrictions are contained in section of the constitution, and in the articles of amendment which have been added to it. thus, the "migration or importation of such persons as any of the states shall think proper to admit, shall not be prohibited by congress." he referred to several of the other restrictive paragraphs which followed, particularly the th, which says, that no tax shall be laid on exports, no preference given to ports of one state over those of another, &c. it was congress, also, he observed, which was to make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, &c. now, if the legislative powers, specifically vested in congress, are to be no limitation or check to the treaty power, it was evident that the exceptions to those powers could be no limitation or check to the treaty power. returning to the powers particularly lodged in congress, he took notice of those relating to war, and money, or the sword and the purse, as requiring a few additional observations, in order to show that the treaty power could not be paramount over them. it was well known that, with respect to the regulation of commerce, it had long remained under the jurisdiction of the states; and that in the establishment of the present government the question was, whether, and how far, it should be transferred to the general jurisdiction. but with respect to the power of making war, it had, from the commencement of the revolution, been judged and exercised as a branch of the general authority, essential to the public safety. the only question, therefore, that could arise, was whether the power should be lodged in this or that department of the federal government. and we find it expressly vested in the legislative, and not in the executive department; with a view, no doubt, to guard it against the abuses which might be apprehended, from placing the power of declaring war in those hands which would conduct it when declared; and which, therefore, in the ordinary course of things, would be most tempted to go into war. but, according to the doctrine now maintained, the united states, by means of an alliance with a foreign power, might be driven into a state of war by the president and senate, contrary both to a sense of the legislature, and to the letter and spirit of the constitution. on the subject, also, of appropriating money, particularly to a military establishment, the provision of the constitution demanded the most severe attention. to prevent the continuance of a military force for a longer term than might be indispensable, it is expressly declared, that no appropriation for the support of armies shall be made for more than two years. so that, at the end of every two years, the question, whether a military force ought to be continued or not, must be open for consideration; and can be decided in the negative, by either the house of representatives or the senate's refusing to concur in the requisite appropriations. this is a most important check and security against the danger of standing armies, and against the prosecution of a war beyond its rational objects; and the efficacy of the precaution is the greater, as, at the end of every two years a re-election of the house of representatives gives the people an opportunity of judging on the occasion for themselves. but if, as is contended, the house of representatives have no right to deliberate on appropriations pledged by the president and senate, and cannot refuse them, without a breach of the constitution and of their oaths, the case is precisely the same, and the same effects would follow, as if the appropriation were not limited to two years, but made for the whole period contemplated, at once. where would be the check of a biennial appropriation for a military establishment raised for four years, if, at the end of two years, the appropriation was to be continued by a constitutional necessity for two years more? it is evident that no real difference can exist between an appropriation for four years at once, and two appropriations for two years each, the second of which, the two houses would be constitutionally obliged to make. it had been said that, in all cases, a law must either be repealed, or its execution provided for. whatever respect might be due to this principle in general, he denied that it could be applicable to the case in question. by the provision of the constitution, limiting appropriations to two years, it was clearly intended to enable either branch of the legislature to discontinue a military force at the end of every two years. if the law establishing it must be necessarily repealed before an appropriation could be withheld, it would be in the power of either branch to keep up an establishment by refusing to concur in repeal. the construction and reasoning, therefore, opposed to the rights of the house, would evidently defeat an essential provision of the constitution. the constitution of the united states is a constitution of limitations and checks. the powers given up by the people for the purposes of government, had been divided into two great classes. one of these formed the state governments; the other, the federal government. the powers of the government had been further divided into three great departments; and the legislative department again subdivided into two independent branches. around each of these portions of power were seen also exceptions and qualifications, as additional guards against the abuses to which power is liable. with a view to this policy of the constitution, it could not be unreasonable, if the clauses under discussion were thought doubtful, to lean towards a construction that would limit and control the treaty-making power, rather than towards one that would make it omnipotent. he came next to the fifth construction, which left with the president and senate the power of making treaties, but required at the same time the legislative sanction and co-operation, in those cases where the constitution had given express and specific powers to the legislature. it was to be presumed, that in all such cases the legislature would exercise its authority with discretion, allowing due weight to the reasons which led to the treaty, and to the circumstances of the existence of the treaty. still, however, this house, in its legislative capacity, must exercise its reason: it must deliberate; for deliberation is implied in legislation. if it must carry all treaties into effect, it would no longer exercise a legislative power; it would be the mere instrument of the will of another department, and would have no will of its own. where the constitution contains a specific and peremptory injunction on congress to do a particular act, congress must, of course, do the act, because the constitution, which is paramount over all the departments, has expressly taken away the legislative discretion of congress. the case is essentially different where the act of one department of government interferes with a power expressly vested in another, and nowhere expressly taken away: here the latter power must be exercised according to its nature; and if it be a legislative power, it must be exercised with that deliberation and discretion which is essential to the nature of legislative power. mr. w. smith (of south carolina) said, he would not at that time go into an extensive review of the arguments of the gentleman from virginia, (mr. madison,) but would only notice some points which he had dwelt on. before he went into a consideration of the subject, he would call the attention of the committee to the true question now before them; for though it was originally only a call for papers, it had now assumed a very important shape, and was nothing less than this, whether that house had a concurrent power with the president and senate in making treaties? the gentleman last up had followed others in referring to the practice under the british constitution; but had concluded his remarks on that argument with allowing, that, after all, our own constitution must be our sole guide. he heartily joined in that sentiment, and was satisfied that the merits of the question should be tested by that alone. in order to show that the treaty power was solely delegated to the president and senate by the constitution, mr. s. said, he should not confine himself to a mere recital of the words, but he should appeal to the general sense of the whole nation at the time the constitution was formed, before any treaty was made under it, which could, by exciting passion and discontent, warp the mind from a just and natural construction of the constitution. by referring to the contemporaneous expositions of that instrument, when the subject was viewed only in relation to the abstract power, and not to a particular treaty, we should come at the truth. he would then confidently appeal to the opinions of those who, when the constitution was promulgated, were alarmed at the treaty power, because it was by the constitution vested in the president and senate, and to its advocates, who vindicated it by proving that the power was safely deposited with these branches of the government. the discussions which took place at the time of its adoption by the convention of the several states, proved, beyond a doubt, that the full extent of the power was then well understood, and thought, by those who approved of the constitution, to be sufficiently guarded. he would further appeal to the amendments which had been proposed by the discontented. the convention of virginia had proposed an amendment, which of itself overturned all the reasonings of the gentleman. it was, "that no commercial treaty should be valid, unless ratified by two-thirds of all the senators." this was the only check which that state required, and was a conclusive evidence of their opinions: had that state conceived that the check which is now contended for existed in the constitution, they could not have been guilty of such an absurdity as the amendment would involve. all the possible dangers which might ensue from the unlimited nature of the treaty power were well considered before the constitution was adopted, and virginia required no further check than the one above recited. all, therefore, that they required had, in the present case, been done, for the treaty was ratified by two-thirds of all the senators. mr. s. said, he could refer to many further proofs derived from a similar source. he would not, however, fatigue the committee at this time with reading them. he would only recall the recollection of some gentlemen present to the protest of the pennsylvania minority, where the same ideas and amendments were contained, and to the proceedings of a meeting at harrisburg, which the gentleman from pennsylvania (mr. gallatin) must well remember, (having been one of the meeting,) where, after stating objections to the extensive powers delegated by the constitution, the following amendment was proposed, as necessary to limit and restrain the powers: "provided always, that no treaty which shall hereafter be made, shall be deemed or construed to alter or affect any law of the united states, or of any particular state, until such treaty shall have been laid before and assented to by the house of representatives in congress." this amendment was the most satisfactory evidence that the proposers of it did then believe that, without that amendment, such treaty would be valid and binding, although not assented to by this house, and that they had, at that day, no idea that there existed in the constitution the check which is now discovered by this _ex post facto_ construction. having stated the general opinion of the public, as manifested by the friends as well as the enemies of the constitution, mr. s. said he would proceed to show that the practice of congress had, from the commencement of its existence, been conformable to that opinion. several treaties had been concluded with indian tribes under the present constitution. these treaties embraced all the points which were now made a subject of contest--settlement of boundaries, grants of money, &c.; when ratified by the president and senate, they had been proclaimed by the executive as the law of the land; they had not even been communicated to the house; but the house, considering them as laws, had made the appropriations as matters of course, and as they did in respect to other laws. the treaties were never discussed, but the requisite sums, as reported in the annual estimates, were included, as matters of course, in the general mass of moneys voted for the war establishment in the item of indian department. it was not pretended that the constitution made any distinction between treaties with foreign nations and indian tribes; and the clause of the constitution which gives to congress the power of regulating commerce with foreign nations, and on which the modern doctrine is founded, includes as well indian tribes as foreign nations. that this house considered a treaty, when ratified by the president and senate, as the law of the land, was further evident from a resolve of the house, of the th of june, , in these words; "_resolved_, that all treaties made, or which shall be made and promulged under the authority of the united states, shall from time to time be published and annexed to their code of laws, by the secretary of state." in consequence of this resolution, the several secretaries of state had annexed the treaties which had been made to the code of laws, as soon as they were ratified by the president and senate, and promulged by the president. mr. s. repeated his former assertion, that there were cases where that house had not the right of withholding appropriations; if they had the power, indeed, they might stop the proceedings of government altogether; and so, individuals had the power of resisting the laws. gentlemen had said, that if this doctrine prevailed, the house would lose its capacity of judging. he denied it; they would still retain, in such cases, a discretion, guided by morality, good faith, and the constitution; the members were as much bound by the laws in their legislative, as in their individual capacity; if an existing law (or treaty, which was a law of the highest nature) prescribed a certain duty, they were bound to perform it, and their discretion could only be called in to regulate the mode and circumstances of discharging that duty; it could not be a matter of discretion whether or not they should perform that duty. thus, unless they intended to arrest the operations of government, their discretion could not be requisite to determine whether they should appropriate the moneys necessary for its support; but out of what fund, and when the moneys shall be paid, and other matters of detail. so, when a treaty was concluded, and became a compact binding the nation, the discretion of the house (unless it was intended to violate our faith) could not determine whether the moneys contracted for should be paid, but the mode, the fund, and such questions of detail, would alone be considered. the distinction, which was an obvious one, between power and right, had not been attended to. the house had certainly the power to do many things which they had not the right to do; they had the power to do wrong, but they certainly had not the right to do wrong; and whether the wrong was committed by acting where they ought not to act, or refusing to act where they ought, was immaterial; both were equally reprehensible. it had been boldly said, that there was no case which could possibly come before them, where they would not be at liberty to answer aye or no: he would produce a case--by the constitution, on the application of a certain number of states, wishing for amendments, congress must call a convention; where is this boasted discretion, of which so much has been said? could the house, in this case, exercise its discretion, whether or no a convention should be called? why not? because the constitution says it must call a convention: and does not the constitution say, "treaties made by the president and senate are laws, and that laws must be obeyed?" the same injunctions of the constitution are imposed in both cases; and as in the first, all this house could do, would be to regulate the time and place of holding the convention; so, in the latter, their discretion would be limited to the mode, and fund, and other details. the gentleman had mentioned the article in the constitution respecting appropriations for military services--they were to be limited to two years; this article proved itself that appropriations might be unlimited in every other case. when a military establishment was instituted, it was known that an appropriation law for that purpose could not be in force more than two years; no inconvenience, then, could result. but there was no such limitation in respect to any other branch of expenditure; from custom, appropriations for the support of government were annual; appropriations even for pensions were annual, and yet no one doubted that, as the pension was a contract, the appropriation for it was always a thing of course; no discretion could be exercised, in respect to the payment, without a breach of faith. march .--in committee of the whole, on mr. livingston's resolution. mr. giles said, he expected, when the present motion was made, that it would not be opposed. the expected agency of the house respecting the treaty, or some subjects relating to it, made him imagine that the propriety of having the papers called for could not be denied. the treaty has been referred to a committee of the whole, surely in order to act on it in some shape or other. indeed, the president, in his speech, at the opening of the session, expressly says, that he will lay the subject before them. this he considered as full evidence, that the president conceived it must come under the notice of the house. if the papers could serve to explain any point relative to that instrument, surely the possession of them was desirable. the right of the house to consider of the expediency of treaties, so far as the provisions of them clash with their specific powers, had been indirectly brought in in considering the present motion. he regretted that this important constitutional question should be about to be decided indirectly; but, this being the situation of the debate, he should state his reasons why he conceived the argument on this ground ought not to be considered as of sufficient strength to cause a negative of the motion before the committee. the question is, whether there be any provisions in the constitution by which this house can in any case check the treaty-making power; and, of consequence, whether it can question the merits of treaties under any circumstances? various considerations had been advanced to show that the house cannot question the merits of a treaty. some of these considerations had grown out of the subject extrinsically, others from the provisions of the constitution. though at first he had intended to have stated simply his own opinion of the constitution on the important question now in view, yet, as gentlemen had gone fully into the question in that shape, and others had stated a variety of objections to the construction the friends of the motion contended for, he should proceed to answer them, and suffer his opinion of the meaning of the constitution to be incidental. the gentleman from south carolina had referred to the opinions of the conventions of the states at the time of adopting the constitution. as to virginia, the gentleman had stated that that state had considered the checks as provided by the constitution as inadequate, and proposed an amendment, purporting to require two-thirds of the whole number of senators, instead of two-thirds of the number present. this was true, he believed; but how would it apply in the sense the gentleman wished? the objection of that state was, that the check in the senate, provided in the treaty-making power, was not sufficient, and they proposed a greater: from which he would argue that they conceived the treaty-making power to be a subject of extreme delicacy, and that they wished additional checks consequently added. how this was to prove that the convention of virginia did not construe the present clauses of the constitution under debate as the friends of the present motion did, he was at a loss to determine. the gentleman who cited this instance had not quoted any part of the proceeding on the subject, or of the reasons that led to the amendment. he had merely mentioned the result to the house. the practice of the house had been referred to yesterday by the member last up, (mr. smith, of south carolina.) he had remarked that the house had passed a general resolution directing the clerk to place in the code of laws of the united states treaties made under the authority of the united states. was this, he asked, an exposition of the meaning of the constitution? he believed the resolution a very proper one, and would vote now for its adoption, if it was yet to be passed. it is certainly proper, when a treaty is concluded under the authority of the united states, that it should be annexed to their code of laws; but this could not weigh against the exercise of discretion in the house on important legislative subjects. the practice of the house, with respect to appropriation laws, in the cases of indian treaties, had been mentioned by the member from south carolina. in the first place, observing upon this, he would remark, that he always conceived there was a distinction between an indian treaty and a treaty with a foreign nation. the english had always made a distinction when we were colonies. the constitution establishes an express difference. he should not, however, found his objections to the inference of the gentleman upon this, but would examine it unconnected with this distinction. provisions had been made by this house to carry indian treaties into effect; but why? no doubt because the house conceived it wise so to do, not because they had not a right to use their discretion in the business. suppose, on any of those occasions, a motion had been made to strike out the sum proposed to be appropriated, would it have been said that the motion was out of order? a similar motion was made lately with respect to the mint, and it was not considered as out of order. if, on that occasion, it had been the opinion of the house that the mint was an improper establishment, by refusing the appropriation they could have defeated the law. it was certainly the opinion of the house that they could exercise their discretion in the business, for it was not even hinted that the motion for striking out was out of order. on another head the gentleman appeared to plume himself much. he had asked, why, since the president had proclaimed a treaty as the law of the land, which was not the law of the land, why he was not impeached? this question, the member exultingly remarked, had not been answered, because, he imagined, it could not be answered. suppose i should tell the gentleman, said mr. g., that i could not now give him an answer, would it show that the house had not the authority contended for by the friends of the present motion? why was the subject mentioned? not with a view, i believe, to the discovery of the truth. i fear it is calculated to produce an opposite effect--to check investigation. it is too often the case that the names of persons are brought into view, not to promote the development of principles, but as having a tendency to destroy freedom of inquiry. i will go further with the gentleman, and admit for a moment (a position, however, i shall by and by controvert) that the president conceived that he had a right, after the exchange of ratifications, to promulgate the treaty as the supreme law of the land; what would this amount to? why, only that this was his opinion; but is that authority here? in any other case rather than the present, i should be inclined to pay a greater respect to opinions from that source; but now, when the question is about the division of powers between two departments, are we to be told of the opinions of one of those departments, to show that the other has no right to the exercise of power in the case. such appeals are not calculated to convince, but to alarm. having examined the objections to the construction contended for by the friends of the motion, drawn from collateral sources, he should turn his attention next, he said, to the intrinsic meaning of the constitution. he would attempt to interpret the constitution from the words of it. it was a misfortune the clauses were not more clear and explicit, so far as to force the same meaning upon every mind, however they might differ in opinion in other respects. however, from the imperfection of language, it was no wonder, he observed, that on an instrument providing for so many different objects, and providing such a variety of checks, various opinions as to construction should arise; but he considered the present clauses of as plain import as any part of the instrument. the construction contended for by the opposers of the motion is, beyond denial, the most dangerous in its effects, and the least probable, as he thought, in its meaning. it is contended by them that the treaty-making power is undefined in its nature, unlimited as to its objects, and supreme in its operation; that the treaty-making power embraces all the legislative powers; operates by controlling all other authorities, and that it is unchecked. when he had asserted this power, as contended by the gentlemen to be unlimited in its objects, he meant, however, that they had confined it only within the limits of the constitution; but even admitting it in that extent, is certainly a doctrine sufficiently alarming. when the gentlemen contend for its supremacy, they also admit in this point some qualifications; according to their doctrine, it is not to be supreme over the head of the constitution, but in every other respect they contend that it shall be unlimited, supreme, undefined. gentlemen who insist that treaties are supreme, next to the constitution, must also grant that there is no necessity for the house to trouble themselves with making laws. the construction contended for by the friends of the resolution is derived from two sources--from the constitution, and the nature of things. the constitution says, the president, with the advice and consent of two-thirds of the senators present, shall make treaties. perhaps, if there was no other clause, the treaty-making power might be considered as unlimited. another clause declares that the constitution, the laws made under it, and treaties, shall be the supreme law of the land. here the gentlemen, when they quote this clause, stop, as if there were no other words in it; and from all this it would appear that the people had, in fact, delegated an unchecked power. but, if we go on, it will be found that the last-mentioned clause adds that the judges in the respective states shall cause them to be executed, any thing in the constitution or laws of the individual states to the contrary notwithstanding. from the jealousy which individual states showed under the old confederation for the preservation of their powers, and the inconveniences which were experienced in consequence, it was found necessary, when organizing a new government, to declare, explicitly, that their constitutions and laws must yield to the _constitution_, _laws_ and _treaties_ of the united states, and for this purpose this clause was introduced. the checks on the treaty-making power he considered as divisible into two classes; the first, consists in the necessary concurrence of the house to give efficacy to treaties; which concurrent power they derive from the enumeration of the legislative powers of the house. where the treaty-making power is exercised, it must be under the reservation, that its provisions, so far as they interfere with the specified powers delegated to congress, must be so far submitted to the discretion of that department of the government. the president and senate, by the constitution, have the power of making treaties, congress the power of regulating commerce, raising armies, &c.; and these, he contended, must form so many exceptions to the general power. gentlemen had said that the constitution was the exposition of the will of the people, and, as such, that they would obey its injunctions. there could be no difference of opinion on this ground; for his own part, he confessed if he adored any thing on earth, it is that will. but the question is, what is that will, as expressed in the constitution? that instrument, to his mind, explained this question very clearly. it enumerates certain powers which it declares specifically vested in congress; and where is the danger to be apprehended from the doctrine laid down by the friends of the resolution? the contrary construction must produce the most pernicious consequences; agreeably to that, there would remain no check over the most unlimited power in the government. the gentlemen contend, that the house must remain silent spectators in the business of a treaty, and that they have no right to the exercise of an opinion in the matter; they must then abandon their constitutional right of legislation; they must abandon the constitution and cling to treaties as supreme. the other check over the treaty-making power, he noticed, was the power of making appropriations, the exercise of which is specifically vested in congress. he begged leave to call the particular attention of the committee to this part of the subject. the constitution says, that no money shall be drawn from the treasury, but in consequence of appropriations made by law. this is no doubt intended as a check in addition to those possessed by the house. it is meant to enable the house, without the concurrence of the other branches, to check, by refusing money, any mischief in the operations carrying on in any department of the government. but what is a law? it is a rule prescribed by competent authority. the word law in the clause of the constitution he had last noticed, was not meant in reference to the treaty-making power; but in reference to congress. a law prescribes a rule of conduct; it is the expression of the will of the proper authority; it is the result of discretion. legislation implies deliberation. if a law is the expression of the will, must not an appropriation law be equally so? but gentlemen had found out a new-fashioned exposition of the word discretion, and, according to their definition in fact, it was no discretion at all. they had mentioned a part of the constitution which provides that the salaries of the judicial department shall be fixed; and asked, whether the house should conceive itself at liberty to use a discretion in appropriations for that department? before he could consider this case, and that before the house, now parallel, he must beg gentlemen would point out any part of the constitution that declared the house should not exercise their discretion when called upon to make appropriations to carry into effect a treaty. he could find nowhere, that, in this case, the right of opinion of the house is constrained. the uniform practice of the british government had been cited to have been, in the case of treaties, the same as that contended for by the friends of the present motion. the greatest security for the liberties of the people established in that government, depends on the control which their parliament has over the purse-strings. in england, this power rests merely on custom; here, the house are expressly intrusted with it; what is custom in england, is reduced to writing in our constitution. then, if this power is in england a ground for parliament to judge of treaties, it is a fair inference that it ought to be exercised here. the practice of the british government, he observed, had often been quoted here, in support of doctrines very different from those in aid of which it is now cited; it has been deemed orthodox when it favored executive prerogative. he confessed, he never did expect that, as early as , a reference would be made to practices, under the british government, in support of the rights of the popular branch of our government. it was painful to be obliged to have resort to that government on such an occasion; but the authority of that government should not be rejected for once, because its practice could be quoted in favor of the popular branch. the ground of the practice in england, and of the right claimed here, rests upon the sound maxim, that all public money is from the pockets of the people, and that it should be expended by none but their representatives. no maxim had been more instrumental than this, in preserving the remnants of british freedom; and thus early is the house called upon to abandon it here. treaties are contended to be paramount to the laws; the president and senate make these treaties, and when made and proclaimed as the supreme law, there is a predestinated necessity in the house to make the requisite provisions for carrying them into effect. the danger of this doctrine, he said, could not be better exemplified, than by a reference to the circumstances that attended the late treaty in its progress. three years ago, a difference took place between the different branches of government, as to the policy that should obtain in reference to the conduct of one foreign nation. the house were unwilling to trust solely to the magnanimity of the king, and wished to make some exertions themselves for self-protection. with this view several measures were proposed, viz: commercial restrictions, non-importation, embargo, sequestration, or rather arrestation upon the ground of the _status quo_. one of the measures passed the house by a respectable majority, but was rejected in the senate by the casting vote of the vice president. the president appointed an envoy extraordinary, who entered into certain stipulations, which, being sanctioned by two-thirds of the senate, it is now contended, are to operate the destruction of the powers specifically vested in the house. if the above was a true statement, he said, and he did not see in what particular it could be contradicted, then the executive had been exerted as a check upon the legislative power, for the negotiation necessarily foreclosed any further legislative proceedings. it did more than this; the executive legislated against legislation, and overruled them on the subject in contest. he should not advert at this time, he said, to the collateral circumstances which attended this business, nor go further in detail; he wished only to remark generally on the dangerous operation of the doctrines contended for. now, it is said, the house have nothing to do but to obey, to appropriate the necessary money, leaving all deliberation aside. if the president, said mr. giles, can, by the assistance of a foreign power, legislate against the rights of the house to legislate, and his proceedings are to be binding on the house, it necessarily destroys their right to the exercise of discretion. if he can by treaty declare, that commerce shall not be regulated, that property shall not be sequestrated, and that piracies shall be judged and punished as he thinks fit; if he is to exercise the unlimited treaty-making power contended for, what security have we that he may not go further when the negotiations are renewed with great britain, agreeably to the stipulations of the present treaty? what security have we that he will not agree with great britain, that if she will keep up an army of ten thousand men in canada, he will do the same here? how could such a stipulation be got over by the house, when they are told that in matters of treaty they must not pretend to exercise their will, but must obey? how will this doctrine operate upon the power of appropriation? a military establishment may be instituted for twenty years, and as their moral sense is to prevent their withholding appropriations, they can have no power over its existence. gentlemen had gone so far as to declare, that an attempt to examine the merits of the treaty was rebellion, was treason against the constitution. what justifies these harsh epithets? such assertions could only create ill-will, and could not tend to the investigation of truth. another argument of the same nature had been used. it was said, that the attempt at exercising a control over the treaty-making power was disorganizing the government. he believed the contrary would be found to be the case. the doctrine advocated by the friends to the motion, only goes to claim a negative voice in the business of treaty-making; whereas the doctrine of its opposers claims the exercise of a power, that would supersede the specific authority delegated to the legislature in all cases whatever. mr. sedgwick said, that, after the length of time which had been consumed, and the talents which had been so ably exerted in the discussion of this subject, he should not think himself authorized to call the attention of the committee to any observations of his; but, that he considered it in principle, and in its consequences, as the most important question which had ever been debated in this house. it was no less than whether this house should, by construction and implication, extend its controlling influence to subjects which were expressly, and he thought exclusively, delegated by the people to another department of the government. we had heretofore been warned emphatically against seizing on power by construction and implication. he had known no instance in which the caution that warning enforced, deserved more attention than on the present occasion. it would be taken for granted, and it would be conceded on all hands, that we were to resort to the constitution, to know the extent and limits of our power, and if we found not there a clear evidence of its existence, we ought to abandon the exercise. it was certain we had not any express delegation to make or to control the public will in any of our relations with foreign nations. on the other hand, we found it declared, that the president should have power to make treaties by and with the advice and consent of the senate, provided two-thirds of the senators present concurred. treaties, to attain the ends for which they were designed, were, from their nature, supreme laws; but the constitution had, in another place, declared, treaties made under the authority of the united states should be supreme laws. gentlemen had said, that it was not declared that treaties made by the president and senate should have this effect; but those made under the authority of the united states. the question then recurred, what treaties were made under the authority of the united states? the true answer undoubtedly was, treaties made by those to whom the people, by their constitution, had delegated the power. the president, qualified as had been mentioned, had expressly, and none else had such power. if we were to rest the subject here, it would seem to follow irresistibly, and to be incapable almost of higher proof, that whenever a compact was formed by the president with a foreign nation, and had received the advice and consent of the senate, if it was of such a nature as to be properly denominated a treaty, all its stipulations would thereby, and from that moment, become "supreme laws." the power of treating between independent nations might be classed under the following heads: . to compose and adjust differences, whether to terminate or to prevent war. . to form contracts for mutual security or defence; or to make treaties, offensive or defensive. . to regulate an intercourse for mutual benefit, or to form treaties of commerce. without the first, war and contention could only be terminated by the destruction of one of the parties; without the second, there could be no defence, by means of union and concert, against superior force; and without the last, a profitable and beneficial intercourse could not be arranged on terms of reciprocity. hence, then, it must be evident to every unprejudiced mind, that by a grant of power to make treaties, authority was given to bind the nation by stipulations; to preserve peace or terminate war; to enter into alliances, offensive and defensive, and to form commercial treaties. this power, he held, unlimited by the constitution, and he held, too, that in its nature, to the extent he had mentioned, it was illimitable. did a serious difference exist with a foreign nation, in determining on the nature and extent of the stipulations which might be necessary to adjust it, the cause of injury, national rights and honor, the evils of war, and all circumstances of relation between the two countries, must be taken into account. in forming alliances, the threatened pressure, your own and your enemy's relative strength, the objects of acquisition or defence, must be considered. and, in adjusting an equitable intercourse for commercial purposes, a thousand circumstances present themselves for nice calculations. a thousand circumstances of foreign relations would occur in the history of every country, under which nothing short of unlimited powers of negotiation would be adequate to a prevention of enormous, perhaps ruinous evils. but it might be objected that a power so enormous, and comprehending such essential interests, might be abused, and thence asked, where is the remedy? to this he answered, that a national association required, for the great purpose of preservation, an unlimited confidence on many subjects. hence, not only this, but perhaps every other national government, had delegated to it an unlimited control over the persons and property of the nation. it might, by the express power given to it of raising armies, convert every citizen into a soldier, and, by a single assessment of a tax, it might command the use of all the property in the country. the power to raise armies and taxes was limited in its exercise by nothing but the discretion of the legislature, under the direction of its prudence, wisdom, and virtue. was there no security against a wanton abuse of these enormous powers? yes, it was to be hoped that the people, in electing the members of this house, and the states in choosing those of the other, would not select characters, who, regardless of the public good, would wantonly impose on their constituents unnecessary burdens. it would be an additional security, that the interests of the rulers were inseparably connected with those of the people; that they could impose no burdens in which themselves did not equally participate. but, should all these guards be insufficient, was there no dependence to be placed in the president?--the man elected by a refined process, pre-eminent in fame and virtue as in rank! was there no security in the watchful guardianship of such a character? responsible by every thing dear and valuable to man--his reputation, his own and his fellow-citizens' happiness--was there no well-founded reliance on all these considerations, for security against oppression? if not, we had not the requisite materials by which to administer a republican government, and the project might be abandoned. after all, however, should the unlimited powers he had mentioned (and such powers must always be unlimited) be wantonly abused, was there no remedy? yes, in the good sense and manly independent spirit of the people. if intolerable burdens were wantonly imposed; if necessary to defeat the oppression, opposition and insurrection would not only be authorized, but become a duty. and if any man could honestly lay his hand on his heart, and in sincerity declare, that a compliance with any existing treaty was worth more than our government, our constitution, our union, and the liberty protected by them; to that man he was ready to declare, that opposition had become a duty. but, in every instance of opposition, whether in defeat of a legislative act, or of a treaty, the right of resistance resulted not from the constitution itself, for it had declared no such right; no constitution could declare it. it existed in original principles, and never could be exercised but by resorting to them. the gentleman from virginia (mr. madison) had stated five different constructions which possibly might be given to the constitution on this subject; three of which, (and for none of them to mr. s.'s knowledge had any man ever contended,) the gentleman had proved to be unfounded. the fourth, that which he had given to the constitution, if admitted, and it should be abused, might produce mischievous effects. was not this true of all the great and essential powers of government? if the controlling influence of this house was added, would the power be less? and if, under these circumstances, abused, would the injury be more tolerable? in short, was not this a kind of argument infinitely more tending to the production of prejudice than to the discovery of truth? the gentleman has really given no decisive opinion what was the true construction. he had, however, seemed to incline to a belief that to the stipulations of a treaty relative to any subject committed to the control of the legislature, to give them validity, legislative co-operation was necessary. of consequence, if this was withheld, the operation of the treaty would be defeated. that it was at the will, and within the discretion, of the legislature to withhold such co-operation, and of course the house might control and defeat the solemn engagements of the president and senate. the gentleman who had suggested this opinion was well known to the committee, and throughout america. mr. s. could not but observe that it was perfectly unaccountable to his mind, that that gentleman had yet to form an opinion to whom was delegated that power, the nature, extent, and effects of which he had so strongly and perspicuously detailed. the capacity of that gentleman's mind, long exercised on political subjects, his known caution and prudence, would authorize a request that he or his friends would explain how it was possible, if such as he states should have been the intention of those who framed the constitution, that the true meaning should not have been expressed in the instrument? that when the gentleman went from the assembly which framed the constitution, immediately afterwards, to one of those which ratified it, he should have admitted an opposite construction? as mr. s. would undertake, by and by, to prove that, in the convention of virginia, he did admit the very construction for which we now contended, he would take the liberty further to inquire, how it happened, that, if such was really the intention of the instrument, that such was the meaning of the people, no man had heard of it until the discovery was produced by the british treaty? strange national intention, unknown for years to every individual! as the gentleman had been pleased to dwell on the idea of a co-operation between the powers of the government, he would take the liberty to state, what had been ably explained by other gentlemen, that the power of making treaties was wholly different from that of making ordinary laws; originating from different motives; producing different effects, and operating to a different extent. in all those particulars, the difference had been perfectly understood. for instance, the ordinary legal protection of property, and the punishment of its violation, could never be extended beyond your own jurisdiction; but, by treaty, the same protection could be extended within the jurisdiction of a foreign government. you could not legislate an adjustment of disputes, nor a peace with another country; but, by treaty, both might be effected. your laws, in no instance, could operate except in your own jurisdiction, and on your own citizens. by treaty, an operation was given to stipulations within the jurisdiction of both the contracting parties. it had been said that treaties could not operate on those subjects which were consigned to legislative control. if this be true, said he, how impotent in this respect is the power of the government! what, then, permit me to inquire, can the power of treating effect? i will tell you what it cannot do; it can make no alliances, because any stipulations for offensive or defensive operations, will infringe on the legislative power of declaring war, laying taxes, or raising armies, or all of them. no treaty of peace can probably be made, which will not either ascertain boundaries, stipulate privileges to aliens, the payment of money, or a cession of a territory, and certainly no treaty of commerce can be made. was it not strange, that, to this late hour, it should have been delayed, and that now, all at once, it should have been discovered, that no power was delegated to any person to regulate our foreign relations? that, although a power was granted to the president and senate to form treaties, that yet there were such reservations and restrictions, that there remained nothing on which this power could operate? or was it true, that this power was competent to treat with every government on earth but that of great britain? might he not be permitted further to inquire, if this treaty had been formed with any other power, with the precise stipulations it now contained, whether there ever would have existed this doubt of constitutionality. march .--in committee of the whole on mr. livingston's resolution: mr. samuel lyman said he rose only to make a few observations. he was against the resolution now on the table, as involving a doctrine, in his opinion, not only inconsistent with the principles of the constitution, but also inconsistent with the laws of nations. in debating the merits of this resolution, an exceedingly important abstract constitutional question had arisen, viz: how far that house had a right to exercise their legislative discretion and judgment relative to carrying a treaty into effect. in order to answer this question, he would raise two premises. and, first, by the constitution, the legislative powers of that house, in co-operation with the other branches of the legislature, extend to all objects within the reach of their sovereignty, excepting the reservations to the distinct sovereignties of the several states which compose the union; but beyond those boundaries their powers could not extend. secondly, there is, by the constitution, attached to the legislature a subordinate kind of power, of a limited and ministerial, or executive nature. at present, it did not occur to him that this subordinate power was to be exercised in its simplicity, excepting in two instances, viz: st, for calling a convention under certain circumstances to amend the constitution; and, dly, for carrying into effect treaties which are constitutionally made; for these two purposes, the people, who are the source of power, had stripped that house of all legislative authority, and made them only the executors of their will; therefore, upon these premises he answered, if a treaty was unconstitutional, they had an undoubted right to exercise a legislative discretion and judgment relative to carrying it into operation, for they were sent there as the guardians of the rights of their fellow-citizens, and, for that purpose, are sworn to support the constitution; but if the treaty was constitutional, they had not a right to exercise that discretion; for, without their intervention, it becomes the supreme law of the land, and virtually repeals all laws which are repugnant to it; and in that case that house is bound to obey it, and to carry it into complete execution; for, by the constitution, the power of making treaties is vested solely and exclusively in the executive department. in the former case, they have a right to exercise a deliberative or legislative power, but not in the latter case; they could there only exercise a ministerial or executive power. so that herein, said he, lies the true distinction, and it arises from the nature and principles of the constitution. he had not the least doubt of the constitutionality of a treaty, when the stipulations in it were of such a nature as not to respect objects of legislation, but only objects which lay beyond the bounds of their sovereignty; for beyond those limits their laws could not extend as rules to regulate the conduct of subjects of foreign powers; and although some stipulations in a treaty may respect objects which were within the reach of their sovereignty, yet it may be in such manner as to be strictly constitutional; for such stipulations may be not only pertinent, but absolutely necessary in forming the treaty. this conclusion, he thought, was the natural and necessary result of a fair and liberal construction of the principles of the constitution, and especially of that paragraph which vests the power of making treaties in the supreme executive, with the advice of the senate. mr. l. said he was sensible he had been delivering an unpopular doctrine, but that he was deeply impressed with its truth, its reality, and its importance; and that the obligations of an oath had prevented his silence on the occasion. mr. baldwin said he had before expressed his opinion, in general terms, in favor of this question. it must have been observed that he had been for several days noting the debates, and preparing to take part in them. he had intended to have introduced the debate on friday morning last, but a singular incident prevented him, which he felt it to be his duty to take this earliest opportunity to state to the house. mr. b. then said: about five minutes before i expected to rise on the question, i was called out of the house by a person then unknown to me, who said his name was frelinghuysen, and whom i found to be a senator of the united states. after a number of interviews, he observed, with great expressions of pain and regret, that he was at last obliged to the unwelcome office of delivering me that letter, which i opened and found to be a challenge directed to me from james gunn, who is also a senator of the united states. the pretext for this transaction was, to extort from me some private letters which i had received early in the session from a number of my constituents, expressing their wish that i would endeavor to prevent any thing being done in congress to validate the mississippi yazoo land speculation before the meeting of the state legislature. there was no complaint of any personal indecorum or disrespect at all; whether they were actuated in their conduct solely by interest in yazoo speculations, i will not pretend to judge. the revival of a transaction of so old a date at that particular moment, was to me surprising. not knowing their degree of relation to this question between the two houses, and not knowing the cast of character but of one of them, i am left only to conjecture. it was so peculiarly timed, and the professed object also of so peculiar a nature, to interrupt the channels of confidence for free communication between me and my constituents, that i have thought it my duty not to let the treatment of it depend on my own individual discretion. i consider it as in the discretion of the house. mr. b. also observed that he felt himself under the necessity of using this as an apology for the apparent neglects of friday, after the particular attention he had before appeared to pay to the discussion; and for his not being able to notice any of the proceedings in the debate of friday, he had supposed he had lost the opportunity of offering his opinion, but was glad to find the question had not been taken, as he was unwilling to suffer this, or even a greater interruption, to prevent him from declaring his opinion, as he had before intended. he said, it was remarkable that several gentlemen rose with very different expressions which had been said to contain the subject in discussion. it was certainly important to agree exactly on that point. the least variation in the point of departure would soon diverge till they were out of sight of each other, and yet each one keep a straight direction. one gentleman had stated, that the question was, whether this house should feel itself at liberty to judge over the heads of president and senate on the subject of treaties without restraint: his reasoning seemed to be built on that proposition. another gentleman had said that the question was, whether the power of making treaties was given by the constitution to the president and two-thirds of the senate, or to the president and both branches of the legislature. he might mention several others, but he called the attention of the house to the fact, to settle the point, that they might at least agree what they were talking about. the question, said he, on the table is, to request of the president papers respecting the treaty: the objection is, you ought not to ask for the papers, because you have no right to touch the subject. he begged leave then to ask, with the utmost candor and respect, whether the real question now depending and brought into dispute by this motion, is not whether all questions relating to this subject are not so definitely and perfectly settled by the constitution, that there was nothing for that house to deliberate upon on the occasion, but only punctually to provide the funds to carry the treaty into effect. if it were allowed that there might be any possible or extraordinary cases on the subject of treaty-making, in which it might ever be proper for that house to deliberate--as, for instance, offensive treaties which might bring the country into a war--subsidies and support of foreign armies--introduction of an established religion from a foreign country, or any other of those acts which are by the constitution prohibited to congress, but not prohibited to the makers of treaties; if it were allowed that there might possibly exist any such case, in which it might ever be proper for congress to deliberate, it would seem to be giving up the ground on which the discussion of the present question has been placed; what agency the house should take, and when, would be other questions. whether a case would probably occur once in a hundred years that would warrant the house in touching the subject, is of no consequence to the debate. the right is denied in the largest sense. the assertion is, that the house has no right to deliberate or to look into any papers on the subject; that the people have, by the constitution, reposed the whole of their confidence on this subject elsewhere; that, to attempt to deliberate upon it, or to ask for any papers respecting it, is treason and anarchy. if this ground were once given up, he should be infinitely less anxious what the house might do in any particular case: these would rest on their individual merits. for his own part, he was by no means disposed to carry the interference of the house to any extreme; but he could not express his abhorrence of the doctrine in the extent to which some gentlemen have carried it in this discussion. he begged leave to entreat gentlemen again candidly to review the few words in the constitution on which they rested so much, and to ask whether they appeared to be such labored expressions as they supposed--so apt and definite as to mean exactly what they contend for, and nothing else; and whether all the words may not well be satisfied without, and stand more harmoniously connected with the other parts of the constitution. how much they intended to incorporate with this power of treaty-making, under cover of contract with foreign nations, he had not heard any one attempt to explain; it seemed designed to stand distinguished as an indefinite, uncontrolled branch of the government, the extent of whose powers was to be known only by its own acts. its definition was to be, that it was indefinite--like what is said of some branches of the powers of parliament; that no one has pretended or ought to pretend to know their extent; that they are not to be submitted to the judgment of any one but themselves; and that they never develope them but by the particular exercise of them; that they were to be left in this state, because, if they were defined, they might be eluded. however this might be found respecting a foreign constitution, it is making a monster of our own. there was not another part or lineament in it which appeared to be in the same mould or proportion. mr. b. then undertook to state his own view of the subject, and what he thought ought to be done. much, he said, depended on the words "make treaties and supreme law of the land;" as to the words supreme law of the land, he had not much doubt for what purpose solely they were introduced. the words were satisfied, and he thought most naturally, by not suffering them to disturb the balance of the federal constitution, for that is not the subject which the section where these words are used is speaking of; but to consider them as giving to the treaty-making power the same paramount authority over the laws and constitutions of the several states, that they give at the same time to the constitution and laws of the united states. the words appear to be introduced for the express purpose of making the constitution, laws, and treaties of the united states, paramount to the constitutions and laws of the several states, and for no other purpose; this is all that the section appears to be speaking of; it satisfies the words, is the most obvious and natural meaning, and leaves the other parts of the constitution harmonious and undisturbed. as to the words "power to make treaties," it was more difficult to ascertain precisely what the constitution meant to give by them. it had been argued that from the nature of governmental powers, the treaty-making power must be paramount, and from the nature of contract it must be paramount. the truth is, the treaty-making power must be what the constitution has made it. he did not hesitate to say, that the most natural meaning to give these words, was to consider them as borrowed from former use, and to give them the meaning which they had always before given them. gentlemen had said that nothing useful could be derived from english books and explanations on these terms. this seemed to him an unreasonable assertion. it might as well be said that they could not use an english dictionary to ascertain the meaning of words. in many sciences, said he, there are definite and appropriate phrases as well as definite and appropriate words; and, in fact, books which are dictionaries of phrases, ascertain the meaning of phrases with as much precision as dictionaries ascertain the meaning of words. it is exceedingly useful that it should be so. when such a precise meaning is fixed to a phrase, and publicly known, it is apt to remain a long time exact, as it is frequently employed, and is very useful as a medium of certainty. many instances of this kind might be quoted, particularly from english books on law and government. he would observe further, these appropriate phrases had been for their certainty in many instances transferred into our constitution, and their meaning must be manifestly sought in those sources as in a dictionary. one remarkable instance occurred to him, and which, from the singularity of its garb, would be very discernible in the constitution--he meant the definition of treason in the third section of the third article of the constitution. the phrase is levying war, adhering to enemies, giving them aid and comfort. these are the very words of the english books, which have been so critically judged that they are not capable of the least variation in their meaning on that tremendous subject; but this meaning is to be sought from those sources; he might mention several instances, but it was unnecessary. he thought the phrase, power to make treaties, should be ascertained in the same manner; and the english meaning, as it would naturally be understood at the time of making the constitution, should be affixed to it; that it should be considered as giving to the president and two-thirds of the senate the same kind of power as the king of england possesses on the subject of treaties, which it is known is in several cases subject to the control of parliament. here it is qualified by the powers specifically given to congress. mr. holland said: it is with great diffidence i rise on this important subject, to submit some considerations to this committee. as it has now become a constitutional question, not with respect to the merits of the treaty, but with respect to the constitutional right of this house to request the executive to furnish us with papers that related to the treaty antecedent to its ratification. to this it is objected that this house has no discretionary power over the treaty, and, on that account, has nothing to do with the papers. the question is not whether the treaty is a good or bad treaty, but it is whether we have a right to exercise our judgments upon it. then, without any regard to the treaty, we must be governed by the rational construction of the fundamental principles of government. to illustrate which, it may be necessary to examine what has been incident to the different kinds of government, according to the histories of those nations governed by despotism, monarchs, or republics; and from the constitution of the united states as the fundamental maxims of the republic, draw that construction that is most rational and natural. it will also be proper to examine which of those governments preserves the most power in the people. first, then, of monarchy. where has that power been placed? according to the theory of the english government it has been lodged in the sovereign, for it is there expressly said (nor has it been denied on this floor) that the king is the source of all power; and it is also expressly declared that the king of great britain has sovereign and exclusive right to make treaties. that, when they are made, they cannot be impeded or annulled by any existing power in the kingdom. this is the theory of that government. but what has been the practice? i answer, the contrary; for it ever has been that, when a treaty was made, the same has been submitted to the parliament for concurrence; and parliament, if they thought proper, admitted and sometimes annulled them, as in the treaty of utrecht, and sundry instances that the history of that nation affords us. the english government, therefore, is in practice what it is not in theory. by the construction of the constitution, as contended for, by giving uncontrollable power to twenty senators and the president, our government will be in practice what the english government is in theory. if this doctrine had been believed, that this was the true construction of the constitution, previous and at the time of its adoption, would the people of the united states have adopted it? if they had been informed that, by this instrument, they were ceding more power to two-thirds of the senators and president, than even could be practised by the king of england, with his lords spiritual and temporal, under that impression would they have ceded that power? or, if they had been told that the house of representatives, under this constitution, had less power than was exercised by the house of commons in england; that they would be less able to secure their liberties in this country against the approaches of prerogative, would they have, under that belief, accepted of this constitution? i think, mr. chairman, i may venture to say they would not. with respect to the more absolute government of france, where has this power been lodged? in this, as in the monarchy of england, it was, in theory, lodged in a prince; but the theory, even in that despotic government, never could be carried into practice. according to _vattel_, in the treaty made by francis i., in the treaty of madrid, on account of that treaty encroaching on the fundamentals of their government, it was set aside. how was this done? it was not done by parliament, for they had none; but the principal people of the kingdom met together at cogniac and annulled it. i ask again, mr. chairman, if the people of this country possess less power than the people of that despotic government? or do they possess less power to withstand the usurpations of the executive, on the subject of treaties, in their representatives in congress, than has ever been maintained in the cramped situation of the people of england by the house of commons? why were these rights ever maintained and so scrupulously attended to by the people of those countries? it was because they considered them as the palladium of their remaining liberty,--they therefore, would not let them go. then, with respect to a republic, the sovereign power is in the people. it therefore follows that whatever can be effected by the people in those countries can be done here--they being the source of power. then, with regard to the constitution, it must be construed naturally and liberally in behalf of the people. not as giving all power that can be given, but as retaining all power and natural right that ought to be retained. it would have been extremely improper to have wantonly discarded natural privilege, or ceded more power than was essential to government; nor was any more intended to be given. the constitution, upon the face of it, shows that this is the case--limits are prescribed to governmental power. not so in the countries spoken of, yet the people exercise it. but it is said our constitution has not retained this privilege, and it is the law and the testimony, sacred volume, &c. the sacredness depends upon the attention to the principles that procured its adoption; when that is contravened a violence is made upon the rights of the people. if, by any construction that can be given, these rights can be preserved, it is wise to consider it as the better opinion. but it is said to be impossible that this power has been ceded, subject to no control, to the president and two-thirds of the senators present; that, whatever may be the practice in other countries, it will not apply to this; that those countries have no constitution, and that we have, and must be governed by it. unfortunate circumstance! why adopted? was it wantonly to throw away a privilege and natural right? certainly not, but the contrary. it was to secure natural right, and to establish a republican form of government. i considered that the executive had absolute power to make peace; as by the constitution he is declared commander-in-chief of all the armies, his situation enabled him to be the best judge of the forces and of the force he had to contend with, and as secrecy was necessary to effecting a treaty of peace, that power was properly vested in him, guarded by two-thirds of the senate. but a treaty of commerce presupposes an existing peace, and in those treaties secrecy is not essential; but a competent knowledge of the produce of the respective states in all their remote situations was necessary; which would be best obtained by an association of the three branches of government. this is a treaty of commerce, and therefore has involved legislative objects. it consequently requires legislative sanction; a contrary construction would be a violation of the constitution and of the principles upon which it was adopted, and therefore a violation of the rights of the people. i confess, on viewing the exception and force of the argument, that i had some doubt, that when the government became old and corrupt, that this perversion might be attempted; but had no idea that in the course of six years it would be contended for. mr. bradbury observed, that the most plausible reason that he had heard in support of the resolution under the consideration of the committee resulted from a principle advanced by a member from pennsylvania, who spoke upon the subject last week. the principle was this; that where any articles of a treaty were repugnant to prior existing acts of congress, those acts must first be repealed by congress before such treaty can become the law of the land; and it was said some of the articles of the british treaty were of this nature. he would not stay to examine the truth of the fact, for admitting it to be true, he altogether denied the principle; but yet he acknowledged that if it could be made out, it would afford the best reason yet given for calling for the papers. if their concurrence was necessary to give existence or legality to the treaty, he saw not why they ought not to be favored with the papers as well as the senate. but he asserted and would endeavor to prove, that the treaty has already a legal existence; that it is now the law of the land; and that, therefore, no act of congress is, or can be, necessary to make it so; and, therefore, that house could have no need of the papers, nor any right to call for them on that ground. that the treaty had already become the law of the land, and that no legislative act of congress was necessary to make it so, he argued wholly from the constitution itself, by which alone the question must at last be determined. that instrument expressly declares, that all treaties made under the authority of the united states shall be the supreme law of the land. he laid no stress upon the word supreme, admitting for argument's sake, that the supremacy ascribed to the constitution and laws, and treaties made under it, meant a supremacy over the constitution and laws of individual states. all he asked to be granted him, and which he thought could not be denied, was that a treaty made under the authority of the united states was the law of the land. if so, then all that needed to be proved was, that a treaty made by the president, with the advice and consent of two-thirds of the senate, was a treaty made under the authority of the united states. and to prove that, he needed only to mention another clause in the constitution, which expressly declares that the president, with such advice and consent, shall have power to make treaties. he nowhere read in the constitution that any act of congress, in any possible case, was necessary to make a treaty, so as that without it such treaty could not be the law of the land. he nowhere read that prior acts of congress repugnant to a treaty must first be repealed before a treaty could be a law. but, says the gentleman from pennsylvania, the same treaty power is given to the king by the constitution and laws of england, that is given to the president by our constitution, and yet the parliament have the power there which he contends for in favor of congress here; that is, they must repeal prior laws repugnant to a new treaty, before it can be the law of the land; and why is not an act of congress, it is asked, necessary for the same purpose, in a similar case here? he would answer, because our constitution is different from the british in this respect: it declares that a treaty made under the authority of the united states, (and he had shown that a treaty made by the president, as aforesaid, was made under such authority,) is the law of the land, and if it is a law, nothing further can be requisite to make it so. there was no such declaration in the constitution and laws of england. there was no arguing from the power of parliament to the power of congress. the parliament must have controlled this treaty power of the king, and stripped him of his prerogative, by use and custom. there had been in england a constant struggle between power and privilege; the prerogatives of the king were not founded in the grant of the people; they were founded on force, on the right of conquest; whatever, therefore, was gained from the king by the commons, was considered as so much gained by the people from an adverse power. if the president were an hereditary monarch, deriving his power from his predecessors by descent, a power originally founded in conquest, congress would do well to get as much of it out of his hands as they could. it would here be, as it was there, a struggle between prerogative and privilege; it would be the people against the king. but as this was not the case, and as congress never had in fact assumed and exercised the power of confirming, by an act of theirs, treaties made by the president, this argument from analogy wholly failed. suppose the parliament of great britain should pass a law expressly delegating the treaty-making power to the king, with the advice and consent of two-thirds of his privy council, and should declare in the act, that a treaty made under such authority should be the supreme law of the land. they claim a right to make such a law, for judge _blackstone_ affirms, that the denial of a power in every government, even to alter every part of its constitution, is the height of political absurdity; and in england, he expressly ascribes this power to parliament. what would be the effect of such an act of parliament? would not a treaty made under it be clearly the law of england? and would not all acts of parliament, prior and repugnant to it, be repealed by it? he was clearly of opinion they would; and this clause, he said, was inserted in the american constitution, probably to guard against that very construction which is now endeavored to be put upon the treaty power; on purpose to cut off all pretence of a power in congress to control a treaty, by refusing to repeal any prior laws that might stand in the way of it. but, said the same gentleman, shall a british house of commons have this right of controlling the treaty-making power, and shall it be denied to the representatives of a free people? he answered, the president and senate of the united states were as much the representatives of a free people as that house was; they were as truly, though not so immediately, chosen by the people as they were. the people distributed their powers as they pleased. the president, said he, represents the people as their executive agent, and is possessed of all executive power, and the power of making treaties. the true question, then, was, shall one constituted representative authority usurp the power and control the acts assigned by the constitution to another representative authority of the same free people? they certainly ought not. if they should attempt it, it would be opposing one authority of the people to another. it would be dividing a free people against itself. but he hoped he had said enough to show the unsoundness of that principle, and fully to establish what he first undertook to prove, that the treaty was already completed; that it was already the law of the land; and that it did, by its own force, repeal all prior laws, if there were any standing in the way of it; and if so, they could have no need of the papers to assist them in making it a law. it had also been laid by the king before his parliament, and he supposed the necessary appropriations had been made to carry it into effect. he did not know that any other parliamentary provision was necessary. but it may be said, that it is fit and proper that they should call for the papers mentioned in the resolution, even if the treaty were law, because appropriations by act of congress would be necessary to carry it into effect, and they ought to have the papers to judge whether it be fit for them to make those appropriations. he answered, whether that be fit or not, in his opinion, must depend wholly upon the treaty or law itself, and upon nothing out of it. it was like all other laws requiring appropriations, in making which they must be governed by a sound and legal discretion, and that discretion must be governed by the instrument itself. even if a question should arise and be proper for the discussion of that house, on the constitutionality of the treaty, yet that question must be decided by the treaty itself, and by nothing else; and there could be no need of any papers for that purpose. if general information were the object, to allay the public sensibility, he should think the better way would be to request the president to publish the papers in all the newspapers throughout the united states. but he believed he must be considered as the best judge in that matter. he would only add, that the correspondence between their envoy and the british minister was, in its nature, secret and confidential. it was communicated to the senate because they were a part of the treaty-making power, which the house was not; but even to them it was communicated in confidence. a request to the president, said he, to communicate these papers, amounts to a requirement; but there can be no right to require where there is no obligation to obey. mr. page spoke as follows: i confess, sir, that i had wished that this house, instead of asking the president for information respecting the negotiation and ratification of the treaty, at this late day of its session, had given him, as soon as possible after its meeting, fully their opinions, and that of their constituents, respecting the treaty itself. but, as time has been afforded for deliberation, and the house has waited most patiently and respectfully till the president could "place the subject before them," according to his promise in his address to congress, i think they have shown a spirit of moderation which deserves credit. the friends of the treaty cannot complain that it has been hastily and rudely attacked, and should not object to the request which is proposed to be made to the president, to furnish a statement of facts which, from what has been said elsewhere, may be supposed sufficient to silence the most clamorous opposers of the treaty. i think that the treaty is constitutional, as far as relates to the powers of the contracting parties to make treaties; and is constitutional and valid, also, as far as relates to that part of it which gives it the name of a treaty of amity, and which might be in a separate and distinct treaty by itself; for the president, by and with the advice and consent of two-thirds of the senators present, has an undoubted authority, under the express words in the first article of the constitution, to make treaties. and i have no doubt that the treaties which were in the view of the framers of that article, must have been principally treaties of peace, of amity, of neutrality, or of alliance. this is the more probable, as the first and principal treaties in which nations were concerned, were treaties of peace, or treaties to secure the blessings of peace; and it is certain that the treaty of peace with great britain was the very treaty which gave rise to the declaration of the constitution, that all treaties made and to be made by the authority of the united states shall be the supreme law of the land: for the treaty of peace with great britain was said to be in a state of inexecution on account of an obstruction thrown in the way by the laws of certain states. this article, therefore, was intended to remove all obstacles, which had arisen or might arise from state legislatures, and might, i will here remark, as easily have been extended to remove all obstructions from the general legislature by adding to the words "any constitution or law of the states," these words, "or the constitution or laws of the united states notwithstanding." the power to make treaties of commerce and navigation, i humbly conceive, could scarcely be within the view and design of the convention, at least not as a primary object, when they formed the article respecting treaties; because they knew, that the extent, situation, population, and productions of the united states, were such as would command them a sufficient share of the commerce of the world, without the aid of commercial treaties. they knew that almost all europe stood in need of their productions, and that great britain and her islands could scarcely exist without them; they knew more, they knew this, sir, that the almost universal belief of their constituents, that giving a power to congress to regulate commerce, which would answer every purpose of commercial treaties, gave existence to the very powers under which they were acting at the moment they framed that article. this mode of regulating commerce was favored by the opinion of the people, who celebrated the adoption of the constitution with so much exultation and expensive parade in the great commercial cities of the united states. they had no doubt that the new congress would use the power with which it was invested, so as to oblige great britain to open her ports to them in the west indies, and to put their trade with them upon a more equitable and stable footing. indeed, sir, the people thought, as associations not to import certain articles from great britain, entered into by them when they were poor helpless colonists, with halters about their necks, repealed the stamp act, that acts of congress regulating commerce, so as to retaliate on great britain, would at least prevent the enacting of the law by which the british king was authorized to regulate the commerce of the united states with great britain and her islands. i acknowledge, sir, that whenever a treaty is to be made, the president and senate are the proper agents to make it. i think it an excellence in our constitution that the president and senate, though not allowed to declare war, have authority to put a stop to its horrors. this is a wise provision against the injury which the pride and ambition of the larger states might do to the smaller, by continuing a war. but i cannot conceive that when congress is authorized to make all laws necessary and proper to carry into effect all the powers granted by the constitution, the treaty-making power as well as others, and are to provide for the general welfare, which is not confided to the president and senate, nor can be intrusted to them alone by the people upon any principle which has ever had weight in the formation of a republican government,--i cannot conceive, i say, that as this is the case, and the house of representatives is composed of members proportioned to a certain ratio of the number of persons to be represented, and has the sole right to originate money bills, how it can possibly be supposed that the president and senate, without their concurrence, can make regulations of commerce, which may be injurious to the general welfare, ruinous to the commerce of certain, and even the largest, states; and by a treaty, too, which may, moreover, deprive that house, which, by the supposition of those who have defended the treaty is at least a committee of ways and means, (and, indeed, nothing more,) of the resources of revenue to which, by the constitution, they might have recourse. but we are told, sir, that the power given to congress by the constitution to regulate commerce cannot extend to that regulation which depends upon the will of a foreign nation or government, and which can only be regulated by compact, or by the treaty-making or pactitious powers. granting that this assertion be true, which, however, may be denied, as the general belief which i have alluded to, and on which the existence of the present government was founded, seemed to contradict it; for it was almost universally believed that an act of congress regulating the commerce of the united states with great britain, as had been proposed to the former congress, or congress under the confederation, or as proposed to this house on the d of january, , and well known by the name of madison's propositions, or as proposed by mr. clark, th april, , would have brought about a more advantageous commercial intercourse with great britain than any direct negotiation with the british minister. it was thought highly probable that the parliament of great britain would (if any of these propositions had been adopted by congress) have refused to have renewed their act, by which the trade with these united states (as if they were more degraded than colonies) was regulated by the king's proclamation. i say, granting, however, that assertion to be true, how does it prove, or what other assertion can prove, that congress has not a right, under the express words of the constitution, which declares that it shall have power to regulate commerce with foreign nations, to be a party to that compact, or to have some share, either previously or subsequently, in the treaty-making business, when it regulates the commerce of the united states with foreign powers? i may agree that a treaty is necessary to establish a commercial intercourse between two nations, to their mutual advantage and satisfaction, but i must affirm, that as that treaty would be a commercial regulation, and as congress is expressly empowered by the constitution to regulate commerce, whenever such treaty shall be made between the united states and any other nation, congress must either direct that the negotiation be commenced upon conditions approved, or sanction the ratification of such treaty by some act showing that the regulation of commerce, by the treaty, was made by the authority of congress, in conformity to the constitution. besides, sir, if the president and senate can regulate the commerce of the united states with one nation, they can with all nations, and if they can with all, what nation can there be with whom congress can regulate commerce? this argument, therefore, must fall to the ground. we are told, however, that the treaty-making power, from its nature, is competent to all the objects at least of the treaty under consideration, and is not to be controlled or checked by this house. let me examine this assertion. if this be true, sir, we find that although the british king, from whose tyranny we revolted, cannot force upon his subjects, against the will of their representatives, a treaty, which it is acknowledged, too, he has a right to make, the president of the united states can, by his proclamation, force upon the people who are his constituents a treaty which their direct representatives wish to suspend, alter, or annul. can this possibly be a true construction of the treaty-making power? surely it cannot. if it be true, then, can the president repeal, as he has by the treaty, the laws of congress, although by the constitution he cannot negative them? he can oblige congress to levy taxes; can withdraw impost and tonnage from their reach; prohibit the exportation of sundry articles, the produce of the united states, although the constitution forbids, the senate and representatives concurring, to lay the smallest duty on the exportation of any article; he can create offices and annex salaries thereto; destroy the rights of this house; provoke war; in short, he can do any thing; but this we are sworn to deny. the absurdity of that construction, then, must be evident, and the recollection of our oaths to support the constitution, of which we have been reminded, must force us to revolt at the thoughts of adopting such a monstrous construction of the constitution. we are reminded also of the president's proclamation. i will attend to it. i look upon it as a proper notification of the ratification of the treaty of amity with great britain, but it can have no effect on the treaty of commerce and navigation, till sanctioned by the votes of congress. the evacuation of the posts on our frontiers held by the british, if intended in consequence of the treaty of amity, ought to take place, or if in conformity to the treaty of peace; but, if intended as a compliance with conditions annexed to the treaty of commerce and navigation, good faith requires that they ought not to be evacuated until the final adjustment of the differences which may arise in the course of the discussion of the merits of that treaty, and this with me is one reason why i wish for information from the president respecting the treaty. i confess too, sir, that i wish for a full and free conference with the senate on the important subject of the treaty. mr. bourne said he would have given a silent vote on this question, had it not have been for some strange doctrines which had been asserted, for he did not consider the question in itself as necessarily involving any constitutional question. the doctrine, that the formal assent of the house of representatives was essential to the legal existence of a treaty, struck him as a perfect novelty. that the president and senate had power under the constitution to make treaties, and that these treaties were the laws of the land, he had never heard denied until this debate. it was true he had heard it said, that the house might control the president and senate in the exercise of this power, by refusing to carry treaties into effect by withholding appropriations of money; but he did not expect to hear the assertion, that the ratification of the house was necessary to a treaty, before it became the law of the land. as a representative of a small state, he felt himself much interested in opposing the doctrine contended for. under the former confederation rhode island had an equal vote with any state in the making of treaties. this right was thought to have been fully preserved under the present constitution. but, if the sentiments he was combating prevailed, the small states would be deprived of one of their most essential rights; for the power of making treaties, as one of the principal rights of sovereignty, was vested in all the states separately when they became independent, was afterwards, and in the old confederation, vested in congress, each state having an equal vote. it was now, in his opinion, exclusively vested in the president and senate, in which body the great and small states had the same equality of suffrage. the opinion which he advanced was not merely the opinion of rhode island when the constitution was adopted. a gentleman from massachusetts had already shown from the debates of the virginia convention, that that assembly entertained the same opinion. he was sure the opinion prevailed in the convention of massachusetts--he had attended their debates when this part of the constitution was the subject of discussion. objections were raised against it, from the indefiniteness of the power vested in the president and senate of making treaties. no one suggested that the house of representatives had any control over, much less a participation in this power. it was urged, from the nature of the power, that it ought to be placed where it was--in the president and senate. the senate represented the sovereignty of the states; besides, from their small numbers, they were better adapted to the exercise of this power in respect to secrecy and despatch, necessary in negotiations. objections were raised on the ground of the possible abuses to which the power of making treaties, unlimited and undefined as it was, might be carried. no one said the president and senate did not possess the power, nor was it pretended that congress had any power to control it. he then called the attention of the committee to the debates of the convention of north carolina. he had been a little surprised to hear a member from that state yesterday say he was a member of the convention, and that it was understood that congress could control the president and senate in making treaties, so far as respected commerce; the power of legislating on commercial regulations being given to congress. what created his surprise was, that he had read the debates of the first convention, and found no such sentiment. the gentleman had explained himself by saying, there was a second convention called in that state, of which he was a member, and there the doctrine alluded to had been advanced. the debates of this convention mr. b. had not seen. mr. brent said he should not in the present debate touch on the merits of the treaty, which he conceived foreign to this question. on a motion to ask for papers with respect to the treaty, he did not conceive with what propriety the fitness of the instrument could be brought into view. the turn which the debate had taken had given rise, he said, to an important constitutional question; he did not believe its decision of consequence to the decision on the present motion; but as the debate had taken that turn, he should pursue the same road in answer to the arguments of gentlemen. he laid this down as a sound inference from the provisions of the constitution on the subject of the treaty power: that the president and senate possess the right of forming treaties, and of carrying on the necessary negotiations with foreign countries; but when these contain stipulations bearing a relation to the specific power vested in the legislature, the house had a right to take cognizance of it, and such a treaty could not become the supreme law of the land until sanctioned by the legislature. to show the justness of this position, he should examine this subject, he said, in a threefold light. he should examine it by a recurrence to the words of the constitution; then to the opinions which prevailed as to its meaning at the time it was framed and adopted; and, lastly, he should examine what construction was best calculated to preserve the liberties of this country. the constitution contains two clauses in reference to the treaty-making power. the first declares that the president, with two-thirds of the senate, shall have power to make treaties. he proceeded to inquire whether this clause gives them the right to make treaties the supreme law of the land? to determine this it was necessary to examine the import of the word in those countries where the treaty power had been frequently exercised, and to consult the opinions of the best civilians. the general power of making treaties is under the control of the constitution. in despotic countries, where all power, legislative, judicial, and executive, is in the hands of one person, there the treaty-making power is without control, and a treaty as soon as made becomes, _ipso facto_, the supreme law of the land; but in all limited governments, the treaty power is subject to the limitations in the constitution. the practice of this principle may be found even in the british government. there, though the king originates treaties, as the president and senate do here, they do not become the supreme law of the land, respecting legislative subjects, until the co-operation of parliament is obtained. thus the power of making treaties does not imply the power of making those treaties in all cases the supreme law of the land. if the executive make a treaty involving none but executive powers strictly, then it becomes immediately the supreme law; but if they contain provisions, which involve the legislative authority, the executive can make them but conditionally, and they do not become supreme until the legislature choose to make them so. the british government furnishes an example where this doctrine has been practised, and it is by a reference to the practice of despotic governments, that the mistaken idea is taken up that all treaties, as soon as made, become the supreme law of the land. the clause in our constitution, he concluded, does not give authority to the president and senate to make a supreme law of the land. when this clause of the constitution is compared with the other parts of it, it will be found, he said, that the above interpretation is just; for the treaty-making power is delegated as a general power, while to congress specific powers are granted. the rational and admitted rule of construction in these cases is, that specific power restrains general powers; and here, then, the general treaty power must be restrained by the specific powers of congress. he admitted that the executive had full power, under the general authority vested in them by the constitution, to originate treaties and to carry on negotiations with foreign powers; but that if the provisions of a treaty so negotiated clashed with specific powers granted, the authority exercising those specific powers must give it their sanction before it becomes the supreme law of the land. he next turned to the second clause of the constitution respecting treaties, which had been noticed in the debate. it says, that the constitution, laws, and treaties, shall be the supreme law of the land; and gentlemen contend, he remarked, that though the first clause does not make the treaties entered into by the executive the supreme law of the land, yet that this does; but its obvious and only meaning, when the whole of it is taken into view, is, that the constitution, laws, and treaties of the united states, are only meant to be declared supreme to constitutions and laws of the individual states. it is admitted, as a sound rule of construction, that to discover the true meaning of any instrument, it is fair to have recourse to the existing circumstances that produced it. when the constitution was formed, it was under a strong impression of the inconveniences experienced under the confederation, when great obstruction was thrown in the way of the treaty power, by the states refusing to carry into execution those agreed to by the constitutional authority. this was the evil the framers of the constitution had in view when they inserted this clause, and it has no relation to the powers of the general government, which stand precisely in the same situation with or without it. it does not declare that treaties shall abrogate laws, but that the states shall not have it in their power to throw impediments in the way of their execution. the words of the constitution cannot be understood otherwise than that the constitution, laws, and treaties, shall exist together; it does not say that a treaty shall repeal a law, or a law repeal a treaty. then the constitution certainly contemplated that they never should be in opposition, for contradictory and opposing laws cannot exist at the same time; if they exist at the same time, they cannot be in opposition to each other. if it can be supposed that the president and senate can make a treaty in opposition to a law of the legislature, and yet both the treaty and the law be at the same time the supreme law of the land, an absurdity is supposed. but if it be admitted that the house shall have a participation in the business of treaties, in cases which involve the legislative authority, then the words of the constitution become intelligible, and both treaties and laws may be at the same time the supreme law of the land. gentlemen say, that treaties, _ipso facto_, repeal anterior laws clashing with their provisions: they say, that the constitution, laws, and treaties, stand upon the same footing in the constitution, being all declared the supreme law of the land. if treaties can repeal laws, then laws can repeal the constitution, for the second (laws) are to the first (constitution) what the third (treaties) are to the second (laws); then, also, by parity of reasoning, treaties may repeal the constitution. if all stand on the same footing, and the precedence is according to the point of time, the last always prevailing, then treaties may change the fundamental principles of our government; then the president and senate, by entering into stipulations with a foreign government, may give us a monarchy, may convert our president into a king, and our senate into a nobility; for, say the gentlemen, treaties are the law of the land as well as the constitution, and a subsequent law repeals those which are anterior. but these positions are false in all their parts; a law or a treaty cannot repeal the constitution, nor can a treaty repeal a law. if the manner in which the three words are placed in the constitution is to have any force, it would not favor the construction of the gentlemen; they contend for the supremacy of treaties, whereas treaties are last named, and the true construction from this source would be the reverse, when there was clashing. he next adverted to the lengths to which the mode of interpretation contended for by the gentlemen would carry them. it was never intended, he asserted, by the people, when they instituted this government, that the treaty power should possess this omnipotence. it was never intended that the president and senate should have it in their power to effect a radical change in our government, and stipulate with a foreign nation for a guarantee of the change. laws contrary to the constitution are nugatory, and treaties contrary to existing laws, the same; because, when in that stage, they are not concluded under the authority of the united states, but are only so (and then there is no longer any clashing) when once they have received the sanction of the legislature. from the above, he concluded that the president and senate originate treaties, and that the legislature to a certain extent should exercise a check upon this power. and upon these principles the british treaty is not the supreme law of the land until a decision on it was had in the legislature. mr. findlay.--it seems to be agreed by both parties that the express words of the constitution will not support either position without a liberty of construction. the difference of opinion is now confined to what construction is most agreeable to the general principles of the constitution. that the construction which gives the fullest scope to all the powers vested in the different departments of the government, and which, by combining their operation, is the best calculated for the preservation of the government itself, offers fairest to be the true one, cannot reasonably be doubted. the legislative powers, to regulate commerce with foreign nations, to levy taxes, appropriate money, &c., are specifically vested in congress, and as deposited in the legislature, are secured by numerous negative checks, declaring what things congress shall not do, and guards regulating the manner in which it shall exercise its powers on the proper subjects. the treaty-making power is not vested in congress; the negotiating part of making treaties is partly of an executive nature, and can be most conveniently exercised by that department, and is, therefore, vested in the president and senate. the president shall have the power to make treaties, two-thirds of the senate agreeing therewith. even the power of negotiating, which includes the timing of treaties, the appointment of envoys, and instructing them, and approving of treaties, so far as to present them for ratification, are powers of great importance, and may put the government in such circumstances as to render it expedient to ratify a treaty, which, if it had not been agreed to by the negotiating agents, it would have rejected--are powers of great importance of themselves; but it is acknowledged that more than this is vested by the constitution in the treaty-making powers. the power of making treaties is admitted to be so extensive as to embrace all subjects arising under the law of nations, for securing amity and friendship betwixt nations, and for the mutual protection of the citizens in their correspondence with each other. authority for this purpose is not vested in congress among the enumerated powers, but expressly given to the president and senate; therefore, treaties to this extent, ratified under their authority, are the laws of the land, according to the constitution. the powers specifically vested in congress are so explicitly checked and guarded as to form an unequivocal limitation to the treaty-making power, when it extends to powers specifically vested in the legislature, consisting of the senate and house of representatives, with the approbation of the president. the legislature cannot transfer its essential powers, nor evade them; the exercise of its privileges it may dispense with, but if it may dispense with or transfer any one legislative power, it may, on the same principle, dispense with or transfer every power with which it is vested, and for the exercise of which the legislature only are responsible. the executive cannot assume or exercise any power expressly vested in the legislature. if the executive may, by an extension of the treaty-making power, regulate commerce, make laws to raise and appropriate money, &c., or, which is the same thing, command laws to be made for carrying treaties, which interfere with the legislative powers, into effect; or if, as is contended, the legislature has no moral power of discretion, no power to refuse to make laws to carry treaties into effect, or even to form an opinion on the goodness or badness of treaties, when they relate to powers explicitly intrusted to its deliberation: on the same principle all legislative discretion may be exercised by the treaty-making power without regard to the constitutional guards provided to prevent the abuses of those powers. for there is no legislative power vested in congress but what may be either directly or indirectly exercised by the treaty-making power. if the treaty-making power is admitted to the extent pleaded for, and the specific powers vested in congress are admitted in the extent in which they are unequivocally expressed, we are reduced to a dilemma, and the constitution is necessarily admitted to have instituted two interfering legislative authorities, acting in direct competition with each other on the same subjects, and both making supreme laws of the land; which though they may be nominally distinct, have the same effect on the citizens, with this difference only, that we may be relieved from the oppression of laws by a repeal of them, but cannot be relieved from the hardships resulting from a treaty, without the consent of another nation. in advocating the resolution before the committee, we admit a reasonable latitude to both the legislative and treaty-making powers. where the treaty-making power extends itself to express legislative objects, and where legislative aid is absolutely necessary to carry the treaty into effect, we contend that the legislature in making such laws, exercise that moral power that is necessary for legislating in all other cases, and are not reduced to the situation of an executive officer, or mere treasurers of the united states. in this case, we say, that the powers are not intended to make war with each other; that the departments ought to concur in the exercise of them. this method preserves the exercise of both powers in their proper places; the other destroys the legislative authority which is, by the constitution, the most explicitly vested, and precisely guarded. mr. smith, of new hampshire, said, he had not intended to have delivered his sentiments on the question before the committee, but as he did not fully agree in opinion with any gentleman who had spoken, it became necessary for him to express the grounds of his opinion. this he would do as briefly as possible. as this question involved the constitutional powers of the house, he viewed it as important; it was a delicate question. we were called upon to decide as to our own powers. for these reasons he thought that the discussion should be conducted with moderation, coolness, and candor; that such a temper was most favorable to truth. however gentlemen might differ, he observed, on other subjects, in this we are all agreed, that, in forming our judgments on all such questions, the constitution must be our sole guide. it was this instrument, he said, which defines the powers given to the general government, and which distributes these powers among the several departments. if the constitution had not assigned to each its peculiar portion of power, these departments, like the original elements, would be engaged in a perpetual war for power. all would be confusion, disorder, and anarchy. he proposed, in the first place, to give what he conceived to be the true exposition of the constitution, on the subject of treaties in general. he should then, he said, state as correctly as possible the exposition or construction of the constitution contended for by the gentleman opposed to him. he lamented that he could not do this with greater accuracy. the gentlemen had not agreed among themselves. he could only state what seemed to be the general current of opinion. the construction which he advocated was, that, by the constitution of the united states, the power of making treaties is exclusively vested in the president and two-thirds of the senate. that this power extends to all kinds of treaties--of peace, of alliance, of amity, of commerce and navigation, and embraces all those subjects, and comprehends all those objects, which can with propriety be the subject of convention or compact between nations; that is, every thing in which they have a mutual or common interest. that a compact so made which does not change the constitution, and which does not palpably and manifestly betray or sacrifice the private interests of the state, (which is invalid on natural principles,) is binding on the nation without any sanction on the part of the house of representatives. that such a treaty is by the constitution paramount to the constitution and laws of the several states; that the judges in the several states are bound to obey it. that it is by the reason and nature of the thing paramount to a law of the united states, and abrogates and annuls all pre-existing laws contrary to it, and, as long as it remains in force, limits and restricts the power of the legislature of the united states to pass any laws in contravention of it. that, when such a treaty requires money to be provided, or rather legislative acts to be performed, it is the duty of the legislature to provide and appropriate the money in the same manner as it is their duty to provide and appropriate money for the payment of our debts. that the nation must judge whether it be constitutionally formed or not; whether the stipulations contained in it be such as in good faith they are bound to execute, and whether any circumstances have happened which would justify a non-observance of it. that on these subjects they must exercise a sound discretion. that neither the nation, nor any departments of the government, are at liberty to reject a treaty merely because it is a hard bargain. the doctrine on the other side is-- that the power to make treaties is limited to such objects as are not comprehended and included in the specified powers given to congress by the constitution; or, that a treaty which comprehends or embraces any such object is not valid; that is, not the supreme law of the land, until the house of representatives have added their sanction to it; or, if this be not admitted, that the house of representatives, by the theory of our constitution, have check on the treaty-making power, in providing and appropriating money necessary to carry a treaty into effect; which power, it is admitted on all hands, they possess; and thus in this way control the doings of the president and senate, and can reject a treaty, or at least certain parts of it. that they can and ought to do this if they believe the treaty to be a bad one, though not injurious in an extreme, such as manifestly betraying or sacrificing the private interest of the state, (which by the law of nations nullifies such a compact,) and which on all hands would readily be admitted as a sufficient cause for refusing to carry it into execution. mr. william lyman began with remarking, that the gentlemen opposed to the resolution had at first contended, that the house had not a constitutional right to require papers of the executive, relative to any subject whatever; and that if a requisition was made, it would be discretionary with the executive, whether it should be complied with or not. to this he replied, that the house possessed the power of impeachment solely, and that this authority certainly implied the right to inspect every paper and transaction in any department, otherwise the power of impeachment could never be exercised with any effect. but not to rely solely on this, he recollected one case, he said, perfectly in point, which was in the correspondence of the former secretary of state (mr. jefferson) with the british minister, communicated to the house. from dates and references, there appeared in that correspondence a chasm. the house, therefore, passed a resolution requesting the executive to lay before them what had been omitted; and further, the resolution in that case was offered by the gentleman from south carolina, (mr. smith,) who was now so vehemently opposed to the present. the right of calling for papers was sanctioned, he said, by the uniform and undeniable practice of the house ever since the organization of the government; they had called for papers and information whenever it was judged expedient; and he asserted, that the house had the fullest right to the possession of any papers in the executive department; they were constituted the especial guardians of the people for that purpose; and he would undertake to say, that this was the first time it had ever been controverted. in order to ascertain the powers of the house, he would advert to the constitution. in the first article and first section, it was declared, "that all legislative powers therein granted, were vested in a congress, to consist of a senate and house of representatives;" and in the eighth section of the same article, the powers granted were defined and specified, such as to lay and collect taxes, borrow money, regulate commerce, and to exercise other important powers enumerated in the several clauses of that important section. he said it was unnecessary to read them, as they had been so frequently referred to in the course of the debate; but he would request gentlemen to pause and reflect whether it could be supposed that this section was not to be efficacious and operative; was it possibly conceivable that a section so definite and so important had been introduced in the constitution merely for the purpose of being nullified and rendered nugatory by a subsequent article or section? the very supposition, he said, appeared to him the height of absurdity, and an affront to common sense; and yet this would be the case, if the doctrines advanced were true, viz: that treaties, when made and ratified by the president and senate, were supreme law, and that they controlled and repealed all laws that stood in their way. congress could neither regulate commerce, borrow money, prescribe rules of naturalization, nor legislate on any other subject, because the president and senate, by treaty, would abrogate them all. it was in vain to consult the house of representatives in the formation of laws, if they thus were liable to be annulled at the pleasure of the president and senate. the present question, he said, was not, whether the house should make treaties, but whether the president and senate should make laws; all the power contended for on the part of the house was the power of self-preservation; it was a repelling power, a power to prevent the president and senate, under the color of making treaties, from making all the laws. a gentleman from connecticut (mr. griswold) had said, that the legislative power occupied all ground, and was vested in congress; and that the treaty-making power occupied all ground, and was vested in the president and senate; and that although congress, who were the agents for the people, should make laws, yet, that the president and senate, who were also their agents, might, by treaty, repeal them. this, mr. l. said, contradicted a sound axiom, and one he had never before heard controverted, viz: that it required the same power to repeal as to make a law. such incongruities as the gentleman had advanced, mr. l. said, could never be reduced to practice; two persons could not be possessed fully and completely of the same thing and at the same time. the gentleman could never reconcile his positions, the one would certainly defeat the other; upon his construction, the treaty-making power must absorb the legislative power, or the legislative power would absorb the treaty-making power. it appeared, therefore, to him, that constitutions, laws, and all writings, ought to receive such interpretation and construction as to render them consistent with themselves; and that it was highly presumptive a construction was erroneous when it produced an absurd conclusion. if the several parts of the constitution were compared and critically examined, the determination must be, that, although the president and senate could make treaties, yet it could not be intended, those treaties that entrenched on the specific legislative powers of congress, unless with their concurrence and consent; otherwise, it followed, that, although the three branches were consulted in the enacting laws, two might repeal them. but it had been asserted that this power, insisted upon on the part of the house, was a novel doctrine, introduced merely upon the spur of the present occasion; notwithstanding which, it had been proved by several gentlemen who had spoken upon the question, that this interpretation was given to the constitution in most of the state conventions at the time of its adoption; that the same interpretation had also been given, at that time, by the writers both for and against its adoption. it had appeared, from the extracts of publications at that period, that whatever might have been the diversity of opinion in other respects relative to the constitution, that, in this construction, at least, both its friends and opposers perfectly agreed. this principle, then, being thus settled and understood, it remained only to show that it had been invariably admitted and recognized from the first organization of the government until this time. the first treaty that had been made under this constitution, he said, was that with the creek indians, in the year ; previously to the making of which, the president communicated the subject to congress; an extract from which communication he would read, viz: "if it should be the judgment of congress, that it would be most expedient to terminate all differences in the southern district, and to lay the foundation for future confidence by an amicable treaty with the indian tribes in that quarter, i think proper to suggest," &c. here, mr. l. said, he wished it might be particularly noticed, that this subject was expressly referred to the judgment of congress to determine on its expediency or inexpediency, and for what purpose, he would ask, was it referred? if the senate and president possessed the full power of making treaties, there could be no occasion for consulting the house of representatives; and yet, in this case, the first that presented itself, it had been conceived necessary. in consequence of this communication, congress had judged it expedient to hold the treaty; and on the th of august, the same year, enacted a law in which the sum of twenty thousand dollars was appropriated for that purpose; and, in conformity thereto, the president appointed commissioners and gave them instructions, which instructions had been also communicated to congress, from which he would also read one paragraph; it was as follows: "you will observe that the whole sum that can be constitutionally expended for the proposed treaty shall not exceed twenty thousand dollars." on this, he said, any commentary was unnecessary, as the principle that the legislative power operated to restrain the power of making treaties, was so fully and explicitly recognized and admitted by the president himself. by pushing inquiry further, it would be found that, in january, , in consequence of communications from the executive which were referred to a select committee, and a report made thereon, the house came to the following resolution, to wit: "that provision ought to be made by law for holding a treaty with the wabash, miami, and other indian tribes north-west of the river ohio." in march following, a law was made, the title of which was "an act entitled an act providing for holding a treaty to establish peace with certain indian tribes." in march, , the sum of twenty thousand dollars was appropriated for obtaining a recognition of the treaty with the emperor of morocco. in march, , one hundred thousand dollars were appropriated to defray the expense of a treaty with the indian tribes north-west of the river ohio. thus it was apparent that laws had always been deemed necessary to provide for holding treaties and for defraying the expenses thereof.[ ] march .--in committee of the whole, on mr. livingston's resolution. mr. reed said, he saw no necessity for the papers referred to in the resolution. if the constitutionality of the treaty should be questioned, or the propriety of making appropriations, these questions, he conceived, must be determined by comparing the treaty with the constitution, and by attending to those stipulations contained in the treaty itself. it was not his intention to have troubled the committee by speaking on this occasion; but perceiving that some gentlemen, in the course of the debate, had gone further into the opposite extremes than he was prepared at present to follow them, he felt as if he ought to express his own sentiments with regard to the constitutional rights of that house relative to the treaty in question. the treaty was undoubtedly negotiated, ratified, and promulgated by constitutional authority. the president, with the advice and consent of two-thirds of the senate, was, in his opinion, unquestionably that authority which the united states had authorized to make treaties. but still it seemed taken for granted that some agency of that house, in its legislative capacity, would be needed in order to carry the aforesaid treaty into effect. a question, therefore, arose, viz: was that house, in all such cases, bound and obliged to put so implicit and absolute a confidence in the executive or in treaties as would render it entirely unnecessary to have any opinion of their own about them, or the probable consequences of their operation? for his part, if he had never seen the treaty in contemplation, and were perfectly ignorant of its contents, or, if he fully believed, as a citizen, that it was unconstitutional, or calculated to ruin, or very materially injure the country, he should not think himself justifiable in voting to appropriate money for the purpose of carrying it into effect. it had been conceded by gentlemen that if a treaty were evidently unconstitutional, it would not be wrong to withhold appropriations; and he conceived that a treaty might possibly be so injurious in its effects as to justify such a measure. supposing such a possible event should ever actually happen, did not the right of refusing to legislate in support of the said treaty involve the right of previously examining all treaties which need the aid of the legislature, and of judging for themselves whether it would be proper or improper to make laws for the purpose of carrying them into effect? in making treaties the executive would use his own discretion, keeping within the limits prescribed for him by the constitution. in making laws the legislature must use their own discretion, always keeping within those limits and bounds which the constitution had fixed for them. he said, the discretionary right here contended for was not the right of doing wrong; it was not the right of violating the constitution; it was not the right of supporting a treaty which ought to be defeated, nor of defeating a treaty which ought to be supported; but, simply the right of judging for themselves, whether they ought, by their own act and deed, in the character of legislators, to appropriate by law such sums of money as would be needed in order to support an existing treaty, all things and circumstances relating thereto being suitably examined and properly considered. perhaps it would be objected, that the constitution nowhere expressly gave the legislators that right. he answered, the right was not precluded, but implied, and, in some respects, evidently one of the original and essential rights of man; a law of nature, prior and superior to all other laws; a law never to be transgressed in any station whatsoever. individuals, in many cases at least, had a right to exercise their own discretion with respect to the propriety of submitting to a civil law or of risking the penalty, the consequence of disobedience; and, as a branch of the legislature, he believed they had a right to deliberate and consult, among other things, the expediency and duty of making or of refusing to make appropriations, even in the case of a treaty. it appeared to him that, in legislating, the legislature should have this right of judging for themselves with respect to the propriety of making or refusing to make any law whatsoever. in most cases their duty would perhaps appear plain and obvious, particularly in the case of appropriating money where a law or treaty actually existed. however, the obligation did not arise wholly from the circumstance of an existing law, but partly from the nature, reasonableness, and tendency of the thing itself. a treaty negotiated by constitutional authority was, he contended, a solemn compact between two nations. it was an important consideration; but he thought they might, with propriety, attend to other considerations, for and against it, especially when their own aid was required, in order to carry it fully into effect. this he conceived was the right of the house, and no encroachment upon the prerogative of the other branches. an appropriation was a specific sum, appropriated by a particular law to a particular purpose. the right of appropriating the public money was not a natural right, but a right derived from the constitution; and the legislature were to exercise that right according to the honest dictates of their own best discretion; excepting those instances in which they were expressly restricted by the constitution itself, as in the cases of compensation for the services of the president of the united states, and for the services of the judges. congress might deliberate and act discretionally in stating at first their salaries. mr. tracy said, he felt a diffidence in giving his sentiments in that house, which was much increased when he considered the ability with which the question had already been discussed, and the length of time it had consumed; but the magnitude of the question would justify him, in his own opinion, for asking of the committee to indulge him with a small portion of their time and attention. this was the first time, since the adoption of the present government, that a discussion of the important constitutional question of the extent of the treaty-making power could have taken place, as it respected a foreign nation; and, of course, would probably form a precedent for all future inquiries of a similar nature. the constitutional rights of the house of representatives to interfere with treaties, might properly be considered in two points of view: . had they a right to assist in the formation of treaties in such a manner as that a treaty would be incomplete without their sanction officially given? and, . had they a right to refuse appropriations of moneys, (if necessary to carry into effect some provisions in a treaty,) and in that way defeat its operation? he acknowledged, if the first position could be supported, the right to call for the papers would be conclusive; but, he contended, they could not be wanted on the latter ground. if the constitution was examined, it would be found the treaty-making power was given to the president; and no interference, or right given to any other men or body of men but to two-thirds of the senate, and that by way of consent or advice. could it be pretended there was a shadow of authority given to the house of representatives? in the constitution it is said, "all legislative powers herein granted shall be vested in a congress," &c. would it be pretended, had the constitution gone no further, that the then thirteen independent sovereign states, by that part of it, had parted with the treaty-making power? no! they reserved a great share of legislative power to themselves, and delegated it to congress only in certain cases, best calculated, in their opinions, to advance their own happiness; and unquestionably reserved every right, power, and sovereignty, which they did not expressly give away by the constitution itself. the powers of legislation are the powers of making statutes in all cases respecting men and things within the jurisdiction of the legislature; but it could by no means in its nature comprehend the treaty-making power, which is the power of contracting or making bargains in the name of a nation, as a moral person, with another nation or moral person, for their mutual benefit, and to be binding and operative on them, as parties to the contract or bargain. and although this had binding force on the nation, when once formed and completed, yet it was not a legislative act. but the constitution went further: it had actually designated the president, with the advice of the senate, to be a plenipotentiary for the formation of treaties. _vattel_, page , speaking of the various customs of nations, in the deposit of this power, says: "all conductors of states (meaning the executives) have not the powers, of themselves, of making public treaties: some are obliged to take the advice of a senate, or of the representatives of a nation. in the fundamental laws of each state we must see what is the power of contracting, with validity, in the name of a state." he supposed, by "fundamental laws," _vattel_ must mean the constitution of a state; if so, it will not follow that the supreme legislative or executive power of a state, as such, have necessarily the power of making treaties; it might be, and in most countries was, an object of precise delegation, and probably always, or certainly more commonly, given to the executive. this constitution had precisely given it to the executive, subjoining the advice and consent of the senate; and in this particular, and in no other, had the individual sovereignties delegated all their power without limitation. it was necessary and proper this power should be lodged somewhere, and equally necessary it should be entire and unlimited, to meet every exigency that the welfare of the nation might require. it had been said, that general expressions of power would be limited by specific: this was a general truth, but he denied the application which had been attempted. it was said, the treaty-making power is a general power; the congress has a specific power to regulate commerce, &c. of course, the specific power to regulate commerce will check the operation of a treaty of a commercial nature. he said this part of the subject had been so ably and conclusively managed by a gentleman from new hampshire, yesterday, (mr. smith,) that he would not exhaust the patience of the committee by going over the same ground. he would however observe, that by the common rule of construction, all the powers given to the president which could, and in their nature would, check or operate on legislation, must be considered as a specific portion of power carved out of the general power given in the former part of the instrument. the general powers of legislation first given to congress, and in the next place specific powers given to the president, could not fail to lead the mind directly to such a construction. "all legislative powers, &c., are vested in a congress," but the president has a qualified and specific check. power to regulate commerce with foreign nations is vested in congress, yet the specific power of contracting, bargaining, or making a treaty, is, so far forth as it may touch legislative points, a specific check upon it. yet he acknowledged this was not his chief reliance. the nature of the case was such, that whatever internal regulations, or those relating to external and foreign commercial subjects, which may have become objects of legislative attention, oppose or come in competition with a contract or bargain about the same things, must give way. it does not exclude legislation from the object of foreign commerce, but establishes certain points within which it shall operate, and which it cannot violate. the thirteen sovereignties possessing all the power, gave to congress a certain portion of legislative authority; but they certainly could give to the executive, or any other body, the power to make treaties. this he contended they had done, by the words of the constitution, in an unlimited manner. it had been said, that the constitution was similar to that of great britain in the part respecting treaties. this, he contended, was an incorrect statement: in his opinion they were very different. the constitution of great britain was formed almost entirely of usages. it had been, for a great length of time, the usage for the king to lay before parliament, for their approbation, treaties--especially those of a commercial nature. if this was a usage, all that could be said of it was, that it was a part of their constitution. he supposed this right had been given by the crown, at some time, to obtain a grant of money; but he could not recollect that the parliament, with all their pretensions to a right of rejecting treaties, had ever exercised it. they generally made a pretext of dislike to a treaty to change the administration. this had been often done; it was on the treaty of peace of . the treaty of utrecht, which was concluded in , had been cited as an instance of rejection by the british parliament. it was a fact, in that instance, that nothing was rejected but a conditional treaty. in forming the treaty, there were many distinct parts: one part of it was a commercial treaty between england and france, separately signed and conditional--that is, "within the space of two months after a law shall pass in great britain, whereby it shall be sufficiently provided, &c., the general tariff made in france, &c., shall take place there again, &c." the law did not pass in great britain, and of course the commercial treaty failed. mr. t. said he had searched all the treaties made by great britain since the treaty of munster, which, if his memory was accurate, was concluded in , and could not find an instance of the parliament's refusing their assent to a treaty made unconditionally; and he really believed, if they practised fully on the right they claimed, it would very soon destroy their government. it had been said, _blackstone_ in his commentaries had defined the powers of the king of great britain to be unlimited in the making of treaties. he observed, that, let _blackstone_ or any other crown lawyer say what he would in favor of prerogative, it was well known the usage had been to submit to parliament the consideration of treaties, and that usage was a part of their constitution; and he rejoiced, that in that particular the constitution of his country was different. gentlemen had said, shall this house not have as much power respecting treaties as the house of commons in great britain? this question was both improper in itself, and calculated to mislead. were we in convention, and forming a constitution, it might have weight; but in a cool discussion of a constitution already formed and adopted, and the question is, what powers are given? it could not be proper. and it ought to be remembered that parliament, and not the commons alone, had this right in great britain. in defining the relative powers given by the constitution, there was danger of the popular branch making encroachments on the other branches, under pretence of favoring the liberties of the people. this pretence, however grateful it might sound in debate, he thought was but a pretence. it was the duty of the house to make a stand against all encroachments on their own rights, if any were attempted, but it must equally be their duty to exercise great caution not to encroach on others. he said, he considered the responsibility which was so very necessary on those in the exercise of the treaty-making power could not exist if it was extended to the house of representatives. he acknowledged if a treaty was unconstitutional, it was not then a contract of binding force, and of course contained no obligation of any kind whatever; if a treaty was so terrible in itself, and manifested consequences ruinous to the nation, no argument could be drawn from such a statement to establish general rules. the moral law had said, we shall not kill, and yet a man may be placed in such a situation, as that he not only may, but it becomes his duty to kill; could it be said a general right to kill is proved by this concession? but could gentlemen seriously say, we now wanted these papers, mentioned in the resolution, to assist us in determining upon the question of appropriation? he thought not. he supposed the first extensive and unlimited right of interfering in the making of a commercial treaty could alone justify the call, and he believed that ground must be given up. he said his colleagues (messrs. smith and griswold) had asserted no other doctrines than such as he now advocated, and yet they had been accused of saying that this house had no will of their own, but must in all cases implicitly obey the president and senate. the construction he had given to the constitution he believed to be just, and trusted he could be under no necessity of declaring the purity of his intentions, as he did not doubt but every member of the house was guided in the investigation by the purest motives. mr. s. smith said, that at the present state of the discussion, little was left but gleanings, and to bear testimony against a doctrine that appeared to him big with consequences fatal to the true interests of the country. he would not pursue the sophistry of the gentleman last up (mr. tracy) through all its windings and turnings; he would only observe that the gentleman had read some, and quoted much to prove that treaties were the supreme law--a doctrine that was admitted by all, that is, when under the authority of the united states. he said the resolution requested certain papers to be laid before the house. what had been the custom of the house heretofore? invariably to ask for all and every paper that might lead to information. he well recollected that, in , a great ferment had arisen in the public mind in consequence of the proclamation of neutrality, (which had always appeared to him to be a wise measure,) that on the meeting of congress a great number of useful papers relative to our situation with respect to foreign nations were submitted, some of them of a most confidential nature, relating to treaties then depending, particularly that with spain. the president was not afraid to place his confidence in that house, and he was right; the public mind was restored to quiet, and the people of kentucky (then restless) were satisfied that the executive were doing every thing in their power to obtain the free navigation of the mississippi. the president went further; he sent a special agent to kentucky to communicate to that government the line of conduct then pursuing for their welfare. had the public mind been less disturbed on the late treaty than in ? he thought not; and that every paper which would tend to satisfy that the treaty was expedient, or to give information on a subject that must be discussed before that house, might with propriety be asked for. a gentleman from vermont (mr. buck) repeated by another from south carolina (mr. smith) said, to vote for this resolution would be treason against the laws and constitution. why this harsh language? did it lead to a discovery of truth? where did these gentlemen find that definition of treason? not in the constitution, for there it was properly defined. mr. s. said, gentlemen had taken a ground that appeared alarming, viz: that the president and two-thirds of the senate may, by the aid of a treaty, do any thing, and every thing, not morally impossible, (provided they do not infringe on the constitution,) and that the immediate representatives forming this house, have only to be informed thereof, and to obey. let us pause for a moment, and ask, was this possible? could this be the fair construction of our so much boasted constitution? if it should be, he would not regret the services rendered his country during the late glorious revolution, nor the part he had taken to promote the adoption of the constitution; nor would he, by inflammatory speeches within, nor his actions without doors, do any thing that should tend to destroy the harmony then subsisting, or to disunite a people whom nature and relative wants seemed to have connected together; but he would endeavor, in a constitutional manner, to obtain amendments to the constitution, which would prevent the evil in future. but is there occasion for amendments to the treaty-making power? he thought not. there were checks and balances sufficient in the constitution to prevent the evils that might arise out of it. he said, he could offer nothing new, but would pursue the train of reasoning began by a gentleman from virginia, (mr. madison.) in the eighth section of the first article of the constitution, congress have power to lay duties, &c., &c., but all duties shall be uniform throughout the united states: can regulate trade with foreign nations: can establish a uniform rule of naturalization. congress, then, although they have the power to lay taxes and duties, and to make laws of naturalization, are bound to make them uniform; and in another article, are prevented from giving a preference by any regulation of commerce or revenue to the ports of one state over those of another. but the treaty-making power is not so confined; it may relieve one of our ports from this uniformity of duties, or one of the states from the uniformity of naturalization; that is, it may relieve goods imported in british bottoms into new york, from the one-tenth extra duty, and let it remain on all the other ports of the union. but, say gentlemen, it is unfair to reason against the use of power by its probable abuses. he thought it advisable to guard against abuses; but has this abuse not already taken place? he thought it had. not with respect to a port of the consequence of new york; that would have been too palpable; but on the lakes, by the third article of the treaty, goods imported to the territory in that quarter, in british bottoms, are subjected to no higher duty than goods imported in american vessels to the atlantic ports. here appeared a departure from that uniformity required by the constitution; here appeared a preference given to the ports of one state over those of another; and yet gentlemen contend, that the house have no right to inquire into the business. indeed, so delicate was one gentleman (mr. buck) on the subject, that he opposed committing the algerine treaty, lest it should establish a claim to investigation! it was true, the trade on the lakes was small, but it would increase. thus, although congress were very wisely restricted, when laying duties, to make them uniform, yet the president and senate would be capable, by the assistance of a foreign power, to destroy that uniformity. mr. s. then stated, that he did not mean, and he hoped he should not be understood to preclude himself from voting to carry the treaty into effect. he held himself entirely open to conviction; and if he should find that the same was expedient, whatever might be his opinion at present on the instrument, (and in truth he did not think it good,) yet he would keep himself at full liberty to act as he might think most to the interest of this country, when that subject should come before the house. march .--in committee of the whole, on mr. livingston's resolution: mr. isaac smith did not pretend to prescribe limits to other men's faith, but he never could believe that men, as wise as those who compose the convention, would have left so important a regulation, as was now contended for by some gentlemen, to mere uncertain construction. he believed, if they intended that house should have had an agency in the making of treaties, they would have said so in express terms. had they done so? nothing like it. so far from it, that they had unequivocally appropriated the treaty-making power to the president and two-thirds of the senate, in terms as express and positive as words could form: and the gentleman in opposition could not, did not deny it. but, say they, this power may be abused, shamefully abused, and, therefore, we will construe it out of the hands the people have placed it in. we will assume and declare ourselves the sole guardians of the people, and we will cry out liberty, liberty; and, as the people love the sound, (he hoped they would always love the substance,) perhaps they will believe us. here rests the fallacy. the people knew, whether they knew or not, that they chose the president, and they firmly believe, as well they may, that he is their guardian. the people knew, also, that they chose the senators, and they likewise think they are their guardians. how we, said he, became sole guardians, will require a modesty superior to that of new england to explain. the people have declared that the president and senate shall make treaties, without a single exception, and, lest there should be any mistake or cavilling about it, they have put it in written words, as they thought, too plain to be doubted, too positive to be contradicted. it appeared to him that it was a sufficient answer, though a short one, to all the laborious arguments had in favor of their interference, to say, that the people wills it otherwise: _sic volo, sic jubeo, stat pro ratione voluntas_. if they had under consideration alterations or amendments to the constitution, those arguments might, perhaps, be proper; but, as matters now stand, they are mere inapplicable declamation. mr. livingston said, that the very able support this resolution had received, might seem to release him from any obligation of speaking in its defence; nor would he now trouble the committee with any observations on the subject, if those he made on the introduction of the business had not been misstated, and his subsequent explanation partly suppressed. he had stated, when he had laid the resolution on the table, as a reason for requesting the papers, that important and constitutional questions would probably arise on the discussion of the treaty. it had been represented, (certainly from misapprehension, not design,) that he confined the use of the papers to the elucidation of a constitutional question only; and it had been asked, with an air of great triumph, how the instructions and correspondence could throw any light on the question of constitutionality, to decide which nothing was necessary but a comparison of the treaty with the constitution? mr. l. said he had not confined the utility of the papers to that point, but that, if he had, it would not be difficult to suppose a case in which they were necessary to determine the constitutionality of the treaty. the constitution, he said, gave to the president the power to make treaties, "by and with the advice and consent of the senate." men, respectable for their talents and patriotism, had supposed that, by the true construction of this clause, the president could make no treaty unless by the previous advice and consent of the senate; in other words, that the senate should advise the making of a treaty, which they could only do before it was commenced; and should consent to it by a ratification after it was concluded. he would give no positive opinion on this subject, but supposed it a point worthy the attention of the house. the construction, he said, appeared reasonable, and had been heretofore sanctioned by practice. two instances he could recollect; one was in the treaty of holston, where governor blount was "vested with full powers and specially empowered by and with the advice and consent of the senate." the other instance was found in the answer of the president to the french minister, who offered to enter into negotiations for a treaty of commerce, which the president declined, by referring him to the meeting of the senate, which was not then in session. if the president supposed he could not commence a negotiation without the concurrence of the senate, it gave force to this construction; and, if it was a true one, nothing was more demonstrable than that the papers were necessary to determine whether the treaty in this point had been constitutionally made. two positions had been assumed, differing not materially in the power ascribed to treaties, but distinguished chiefly by the mode of applying this power. by some it was contended, that the interference of the legislature was necessary in some instances, but that the treaty operated by way of moral obligation, to enforce the necessary steps to give it validity; and that though there is a physical power of refusal, yet it ought in no case to operate against the superior obligation. others had asserted, that treaties being the supreme law, might operate directly, without the intervention of any other body. that where existing legislative acts opposed their execution, the treaty was paramount, and could repeal them. these positions were in fact the same, because, if a treaty was, at all events, to have effect, it was perfectly immaterial, whether it operated directly by its own power, or indirectly by the instrumentality of another body; both, he thought, equally subversive of the principles of the government; but the first was most degrading to the legislative dignity. nor could he discover from what part of the constitution it was inferred. wherever, in that instrument, a duty was imposed, it was clearly and explicitly assigned, as in case of the president's compensation, that of the judges, and many other instances. it is not, then, to be conceived, that so important an obligation as this should have been left to implication. if it had been intended so to annihilate this discretion, the same language would have been used, "congress shall pass laws to carry every treaty into effect," but nothing of this kind appears. again, if it had been intended to make treaties paramount over laws, it would seem to have been the more simple mode, to have dispensed with their interference. why leave a phantom of discretion, an unreal mockery of power, in the hands of the legislature? in order to get rid of this difficulty, some gentlemen seem willing to allow a species of volition, but it was a pittance that would be scarcely worth accepting. in cases of extreme necessity, and in others, where, from corruption or other good cause, the compact is void, this house, they say, may refuse to carry it into effect. in the first case, where it is impossible to give efficacy to a treaty, the power of refusing it was surely of little value. and where the compact is void in itself, the liberty of not being bound by it, would scarcely be contended for. if the subject were less serious, mr. l. said, one would be tempted to smile at the efforts that are made to reconcile the constitutional predestination contended for, with the free agency of discretion. it was as difficult to be understood, as the most entangled theological controversy, and, like most disputants in that science, they concluded with anathemas against all who could not comprehend, or would not believe them. we have a discretion, whether to act or not, say they; but we are under an obligation to act, and if we do not, we are guilty of treason and rebellion. this was the same kind of discretion a man has, whether he will commit murder or let it alone; he may do it, but if he does, he will be hanged. this was a worse alternative than that generally called hobson's choice--that was, "this or nothing;" but here we are told, "do this, or be hanged for a traitor." so that hereafter, when any one intended to express an inevitable necessity, he would call it congressional discretion. if, then, the treaty does not operate by way of obligation on the legislative power, let us, said mr. l., examine, whether, as is contended, "a treaty is paramount to a law, and can repeal it, though it, itself, cannot be acted on by the legislative power;" this, he said, was the most important question that had ever been agitated within these walls. it evidently tended to the substitution of a foreign power, in lieu of the popular branch; it was replete with the most serious evils. he could never suppose so great and pernicious an absurdity was contemplated by the constitution; but, if such was the true construction, great as the evil was, we must submit, until it could be legally amended. the constitution gave all legislative power to the congress of the united states; vested the power of making treaties in the president and senate, and declared that the constitution, the laws made in pursuance thereof, and treaties made under the authority of the united states, should be the supreme law of the land. he had always considered the order in which this enumeration was made as descriptive of the relative authority of each. st. the constitution, which no other act could operate on. d. the laws made in pursuance thereof. d. treaties, when they contradicted neither; for, if no weight was given to this argument, treaties would be superior, both to the constitution and the laws, as there is no restriction with respect to them, as in the case of laws, that they be made pursuant to the constitution. he did not believe gentlemen would contend for this absurdity; they must therefore refer to the order of the enumeration, to measure the relative effect of the constitution, laws, and treaties. if the objects of legislation and of treaty compact could be kept distinct, no question would arise, there would be no pretext for interference; but they could not; almost every object of legislation might also become that of compact with a foreign power. but it was probable, mr. l. said, that the treaty power was intended to be placed in the president and senate to the same extent only in which it existed in the executive of great britain. the words of our constitution on this point were the same made use of by british writers in defining the corresponding power in their government, and it seemed evident that some of its features (and this was none of the least prominent) were drawn from that original. he was happy that the parallel was not perfect in other instances. he thought it completely so in this; and that the practice therefore of that government would, in some measure, lead to the true construction of this. aware of the weight of precedents drawn from english history, gentlemen endeavored to weaken them by a very ingenious argument: "the british constitution," say they, "is not written, it is formed of usages; if you prove, therefore, that it is the usage for british parliaments to sanction treaties, you prove it to be their constitution, but you do not prove it to be ours." it was true, mr. l. observed, that the english constitution was formed partly of immemorial usages; but it was also true, that those usages were collected in books of authority, and that the different powers of government were generally designated, so that the leading points in their constitution were as well known and defined as they were in that of america. it had been shown by a reference to writers of the best authority, that, by the constitution of england, the power of making all treaties was in the king; but as the power of making all laws was in the parliament, this latter, as the greater power, controlled the former, whenever it affected objects of legislation. thus, in the constitution of the united states, he contended, the power of making treaties, that is, all treaties, vested in the president and senate; but, as all legislative power is vested in congress, no treaty operating upon any object of legislation can take effect until it receives the sanction of congress. the practice, too, was the same. the king asserted his right of making and completing treaties, by not only concluding, but ratifying them, before they were submitted to parliament, but he believed no commercial treaty was proclaimed as the law of the land before it had received the sanction of parliament. indeed, it was impossible, in any country, and under any constitution, where the legislative and treaty-making powers are lodged in different hands, that any other construction can be given without running into the absurdity he had before hinted at, of making two different powers supreme over the same object at the same time. our ideas had been confounded by referring to the practice of governments where the two powers were united, and where a ratification gave the consent of both. if, then, there was a perfect analogy between the power vested in the crown in england, and that delegated to the president and senate in america, on the subject of treaties; and if the parliament, by virtue of its general legislative authority, was in the practice of giving or withholding its sanction to treaties concluded by the king, it was but a fair inference to say, that the same discretion existed in congress. some instances of the exercise of this power by parliament, had been before quoted by others. the inexecution of the treaty of utrecht, in consequence of parliamentary opposition, and the difficulties with which the commercial treaty with france was carried through the house of commons, in , had been already noticed. he would mention two other precedents drawn from the same source equally striking, or perhaps more so, as the course of proceeding there followed was precisely that which was proposed by the resolution in debate. the first was the proceeding on the barrier treaty, taken from the th vol. parl. debates, p. , where the house of commons began, by a resolution to address the queen, "that all instruction and orders given to the plenipotentiaries that transacted the barrier treaty, and also all treaties mentioned and referred to in the said treaty, might be laid before the house, except such treaties as they already had." we are told in the subsequent page, that on the th, that is, only two days after the request, "mr. secretary st. john presented to the house, by her majesty's command, a copy of the instructions to the duke of marlborough and lord townsend, about the barrier treaty, extracts of letters from mr. boyle to lord townsend, concerning the said treaty; also a copy of the preliminary articles, signed at the hague; the titles of which copies and extracts of letters were referred to the committee of the whole house. after this, it was resolved to present an address to her majesty, that the letters written by lord townsend to mr. boyle, the secretary of state, dated the st and th of november, , might be laid before the house, which mr. secretary st. john accordingly did on the th of february." after having obtained the papers, mr. l. said, the house of commons proceeded to the consideration of the treaty in committee of the whole, and voted, st. that the treaty contained articles destructive to the trade and interest of great britain. d. that the negotiator had acted without authority. d. that the advisers and negotiators were enemies to the queen and kingdom. the treaty being thus obstructed, the states general remonstrated to the queen on the subject; but, conscious that the parliament were only exercising a constitutional power, they make no complaints in their memorial of any breach of faith, though the treaty had been ratified. they enter into the merits of the treaty, offer to negotiate on the obnoxious articles, and conclude with "entreating the continuance of her majesty's friendship." this instance, then, said mr. l., is complete to show the propriety of a call for papers by the house of commons; a ready compliance on the part of the crown, a deliberation on a ratified treaty, a rejection of it, and an acquiescence on the part of the foreign nation, without remonstrance. the other instance was an address in the year , requesting "the treaties of peace and commerce between her majesty and the king of spain, and the instructions given to her majesty's ambassadors thereupon, together with the copies of the king of spain's ratifications of the said treaties, and the preliminaries signed by the lord lexington and the marquis of bedmar, at madrid, and all other agreements and stipulations which had been made concerning the commerce between great britain and spain. dly. an account of what engagements of guaranty her majesty had entered into by virtue of any treaty with any foreign prince or state, from the year . and dly. an account of what instances had been used by her majesty for restoring to the catalans their ancient privileges, and all letters relating thereto. and then it was resolved, to take into further consideration the message that day sent from the lords upon thursday next following." objections had been raised to this construction, drawn from three different sources. . from the prevalent construction at the time of establishing the constitution. . from the practice of the government since that period. . from the present ideas entertained by the people of the united states. st. as to the construction generally received when the constitution was adopted, mr. l. did not conceive it to be conclusive, even if admitted to be contrary to that now contended for; because he believed we were now as capable at least of determining the true meaning of that instrument, as the conventions were; they were called in haste, they were heated by party, and many adopted it from expediency, without having fully debated the different articles. but he did not believe the general construction at that time differed from the one he had adopted. a member from virginia (mr. brent) had shown, by recurring to the debates in the convention of that state, and to other contemporaneous productions, that the framers and friends to the constitution construed it in the manner that we do; whilst its enemies endeavored to render it odious and unpopular, by endeavoring to fix on it the contrary construction. and as the friends to the constitution were the most numerous, we ought rather to take the explanation under which a majority accepted the constitution, as the true one, than to look for it in the bugbears by which anti-federalism endeavored to prevent its adoption. d. the second argument that had been used to deprive the legislature of any right of interference, in cases of this kind, was drawn from the uniform practice of the government ever since its formation. the gentleman from south carolina (mr. smith) who made this objection, had cited one instance of this practice in the resolution directing treaties to be published with the laws, and had adverted to the appropriations for the indian treaties, (under the general head of the military establishment,) as favoring his principle. as to the resolution, mr. l. said, there was no doubt that treaties, when properly sanctioned, ought to be observed, and therefore the resolution was proper, that they ought to be promulgated. on the subject of appropriation, it had been well observed by a gentleman from virginia (mr. giles) that the house exercised as much discretion in granting the supply, by way of addition to the military appropriations, as if it had been given specially for the purposes of the treaty. but the truth is, said mr. l., that an accurate examination into the communications of the executive in analogous cases, and the proceedings of this house, will form a strong, i think an irresistible, argument in favor of the resolution. it would appear, he said, from the view he was about to take, that from the first establishment of the constitution until the negotiation of this treaty was begun, the executive had been in habits of free communication with the legislature as to our external relations; that their authority in questions of commerce, navigation, boundary, and intercourse with the indian tribes, had been expressly recognized, even when difficulties on these questions were to be adjusted by treaty. the first case related to a provision for an indian treaty, and was suggested by the president, in a message of the th of august, , in which he says: "if it should be the judgment of congress that it would be most expedient to terminate all differences in the southern district, and to lay the foundation for future confidence by an amicable treaty with the indian tribes in that quarter, i think proper to suggest the consideration of the expediency of instituting a temporary commission for that purpose, to consist of three persons, whose authority should expire with the occasion." in consequence of this message, congress took into consideration the expediency of the measure recommended to them, and passed the act of the th of august, in the same year, appropriating twenty thousand dollars for defraying the expense of negotiating and treating with the indian tribes, and authorizing the appointment of commissioners. the president having appointed commissioners to treat under the direction of the act, gave them instructions, which were communicated to the house, and from which this is an extract: "you will please to observe, that the whole sum that can be constitutionally expended is twenty thousand dollars, and that the same cannot be extended." nothing having been effected by the commissioners, the president mentions the subject again in his address to both houses, on the st of january, . in the month of march, in the same year, the house of representatives adopted the following resolution, recommended by a select committee: "that provision ought to be made by law for holding a treaty to establish peace between the united states and the wabash, miami, and other nations of indians, north-west of the river ohio; also, for regulating trade and intercourse with the indian tribes, and the mode of extinguishing their claims to lands within the limits of the united states." on the th march, following, a bill passed the house of representatives, the title of which was amended in the senate and passed, appropriating twenty thousand dollars for purposes expressed in the preceding resolution. mr. l. said this case was important, as it was the first communication relative to a treaty made under the constitution. an attentive examination of its different parts would show that very different ideas were then entertained from those which were now enforced. he would first observe, that the discretion of the house of representatives as to commerce with foreign nations, stood precisely on the same footing with that which they ought to exercise in regulating intercourse with the indian tribes; that if one could be done without their concurrence, by treaty, the other might also; and that, therefore, when the president recognized their right to deliberate in one case, he virtually did it in the other. let us then attend to the language of the message, said mr. l., and we shall find that right of deliberation most expressly referred to. "if it should be the judgment of congress that it would be most expedient"--what can be more explicit than this language? and again, "i think proper to suggest the consideration of the expediency of instituting a temporary commission." here the same discretion is not only applied to, but the president, at that time supposing that no implicated power could deprive congress of the right to regulate trade and intercourse with the indian tribes, submitted to their consideration the expediency of appointing commissioners. they passed the necessary laws, and he instructed the commissioners, not in the language that is now held, that they might stipulate for the payment of any sum, and that congress would be obliged to find the means; but he tells them, "the only sum that can be constitutionally expended is twenty thousand dollars, and that the same cannot be extended." why, (if the doctrine is true that we are under an obligation to comply with the terms of every treaty made by the president and senate,) why did he say no further sum could constitutionally be expended? if that doctrine were indeed true, his language would have been, use what money may be necessary, contract for the payment of it in your treaty, and congress are constitutionally obliged to carry your stipulations into effect. the resolution above quoted, mr. l. said, was important, as it proved that congress then supposed that they ought not only to provide by law for holding a treaty with the indians, but that they also had the power, and ought to exercise it, of regulating trade and intercourse with the same people, and of prescribing the mode of extinguishing their claims to lands within the united states; but all this, said he, it is now discovered may be done without their aid, by treaty. the second instance of the exercise of this dreaded discretion, was in the law of march d, , appropriating twenty thousand dollars to enable the president to effect a negotiation of the treaty with morocco. this originated in the senate, and is a decided proof that neither the president nor senate had at that period any idea of the moral obligation that is now discovered, or they would, without the formality of a law, have at once stipulated with the new emperor for the payment of the necessary sum, which must have been provided by the house. in a third case, the president had thought proper to take the sense of that house in a matter that of all others demanded secrecy, and under circumstances that would have prevented his making the application, if he had conceived himself at liberty to act without their concurrence. he adverted to the message of th december, , where the president says: "i lay before you a report of the secretary of state, on the subject of the citizens of the united states in captivity at algiers, that you may provide in their behalf what to you shall seem expedient." no act having been passed by congress in consequence of this message, the president did not conceive himself authorized to bind the united states by treaty, for the necessary ransom of their citizens; and therefore nothing was concluded until after a subsequent message and previous appropriation, in the year , when another message was sent relative to the negotiations with morocco and algiers, then pending: "while it is proper (he says) that our citizens should know that subjects which so much concern their interests and their feelings, have duly engaged the attention of their legislature and executive, it would still be improper that some part of this communication should be made known." part of this message, therefore, was confidentially communicated, which shows, mr. l. said, on some occasions, it was not deemed imprudent to trust this house with the secrets of the cabinet; and in consequence of this message, a law was passed, appropriating one hundred thousand dollars for the purchase of a peace with the algerines. it was ostensibly appropriated to a more general purpose, but the intent was well understood. the next transaction that he should quote, mr. l. said, as favorable to his doctrine, was the message of the president of the th december, , and the measure to which it gave rise. the president says: "as the present situation of the several nations of europe, and especially those with which the united states have important relations, cannot but render the state of things between them and us matter of interesting inquiry to the legislature, and may, indeed, give rise to deliberations to which they alone are competent, i have thought it my duty to communicate to them certain correspondence which has taken place." this message, mr. l. said, accompanied the papers relative to france, to great britain, and to spain; and a question would immediately occur, what were the deliberations to which the president then thought the legislature alone was competent, and which he therefore thought it his duty to communicate. all our disputes with the nations referred to in the message, were such as on the new construction of the treaty power he could have adjusted by compact, without any reference to the house of representatives; but it is plain, by the express words of the message, that he did not believe that construction. it was no answer, mr. l. said, to the argument drawn from this transaction, to say that the president only submitted the question of war or peace to the legislature by this message. . because the message related to the three principal nations in europe, and he never could have imagined that congress would have deliberated on going to war with them all. . this was evidently not his intention, because as soon as measures were proposed in that house, which he supposed would lead to a rupture with one of those nations, all these measures were palsied by the appointment of an envoy, and the commencement of negotiation. it was clear, then, that the president thought the matters communicated by his message, which related to commerce and boundary, were constitutionally vested in the discretion of congress. the idea was corroborated by the words of a message relative to the negotiation with spain: "and, therefore, by and with the advice and consent of the senate, i appointed commissioners plenipotentiary for negotiating and concluding a treaty with that country, on the several subjects of boundary, navigation, and commerce, and gave them the instructions now communicated." why, said mr. l., communicate the instructions to the ministers? because they related to commerce, to navigation, to boundary, on all which subjects the president must have thought the legislature had a right of decision. he must have thought so at that period; but, unfortunately, all precedent of free communication ended here; mr. jay's negotiation began, and a different construction was assumed. from this view of the acts of government, mr. l. said, he trusted that a far different impression would be made, than that the doctrine he contended for was a new one, originating in opposition to the english treaty, and a desire to disorganize the government. that, on the contrary, it had been declared by the president, acquiesced in by the senate, and acted upon by the house of representatives. march .--in committee of the whole on mr. livingston's resolution: mr. williams observed much had been said upon the subject of the present resolution, and so much time consumed, that he should confine his observations within a narrower compass than he at first intended. it was contended that in a republican government there ought to be no secrets; but he would ask whether it was not specified in the constitution that secrecy should be observed on particular occasions? and, had not his colleague (mr. livingston) quoted the secret journals of the house? he believed if the constitution of france were examined, it would be found that their system admitted of secrets. he had the honor, he said, to be upon a committee, before whom many papers were laid, which it would be improper to publish. with respect to the present papers, he did not think there were any secrets in them. he believed he had seen them all. for the space of ten weeks any member of that house might have seen them. it was not merely with respect to the present papers that he opposed the motion, but because it would be establishing a bad precedent; and, as they were a young government, they ought to be cautious how they established bad precedents. it was well known that in the negotiations in time of war, confidential communications were necessary; but if no papers were allowed to be kept secret, what person would ever venture to make any such communication? hence this country, when in the greatest danger, may be much injured by improper precedents. he quoted authorities to prove that there never was but one precedent in great britain of a negotiator's papers being given up; that was in the last year of the reign of queen anne when the ministry were soon afterwards obliged to fly their country. he was sorry that a gentleman returned by the republican interest of one of the first cities of the union should have had recourse to a desperate tory faction for a precedent. some gentlemen had observed that the papers ought to be obtained, because the president had intimated, in his speech, that he would lay the papers before the house with the treaty; but they were mistaken in their observations, because the papers had not been laid before us. a gentleman from pennsylvania said, because the king of england laid the papers relative to a negotiation before parliament along with the treaty to which they related, they had also a right to papers, the governments being similar; but when the king did this, he informed them that he had concluded such a treaty; and after a thing was concluded, he did not know what could remain for parliament to do. he would refer to a recent authority, and not go back to ; it was to the case of the treaty with great britain respecting american loyalists, when papers were refused to be given up, and it was deemed a most inconsistent thing to require them. this business caused great debates in parliament, and the motion for papers was lost, there being only sixty-three for it, and one hundred and four against it. mr. w. read the observations of different members of parliament on the occasion, and observed, that although he was unwilling to quote precedents from a government not similar to ours, yet this was a case in point, and this treaty was negotiated between mr. jay, on the part of the united states, and mr. oswald, on the part of great britain. the resolution before them called for all papers, whether public or private, except such as related to any existing negotiation; but as the treaty was completed, the resolution included all papers. he should have had less objection to the motion, if the amendment proposed by the gentleman from virginia had been adopted. he did not see the use the papers would be of if they were got. the house was not vested with either the power to alter or amend the treaty. but, say gentlemen, they are wanted for information. but he believed they ought to form their judgments of the treaty from the instrument itself. suppose i were to employ an agent, and give him instructions to make a contract for me, on condition that it should not be binding until i had approved it; and my agent return and i approve of the contract, what light can be thrown upon it by the instructions which were given to the agent? the instrument alone was what must be had recourse to; because he had it in his power to have withheld his sanction. if his information was right, when certain resolutions were brought forward in the year , a gentleman from virginia said that great britain would refuse to negotiate with this country; but immediately upon the treaty being made known, it was every thing that was bad. he would endeavor to answer some observations which had fallen from a gentleman from virginia, (mr. giles.) it was asked if the treaty power could receive any check? he conceived the will of the people ought to be obeyed. they had given power to the president and senate to make treaties, which if not complied with, would be to oppose their will. in speaking of the amendments proposed to the constitution by the legislature of virginia, it was said they were only intended to make the check more certain than at present; but he read the resolution, viz: "that no treaty containing any stipulations upon the subject of the powers vested in congress by the eighth section of the first article, shall become the supreme law of the land, until it shall have been approved in those particulars by a majority in the house of representatives. that the president, before he shall ratify any treaty, shall submit the same to the house of representatives; and insisted that it might be clearly deduced from them, that they did not conceive the treaty power to have any check in that house. that state had kept uniformly the same ground in all their actions; but the different state legislatures to which their amendments had been proposed, had determined the treaty power rightly placed where it is at present. but because the people will not agree that they should have a check upon the treaty power, gentlemen seem disposed to usurp it by their present doctrines." the same gentleman (mr. giles) observed, that the checks in the government of the united states had been completely routed for these six years. he was exceedingly sorry that the president could bind that house, but he said that was a sword that cut two ways. it was too late in the day to assert this doctrine, when the people were become so enlightened as to be better acquainted with the nature of government, and better educated, than the people of any other nation in the world. they would, therefore, take care of themselves. he said that a gentleman from south carolina had observed that the treaty was put into operation by the proclamation of the president, and made a part of the laws of the land. an honorable gentleman from virginia (mr. giles) granted that, when completed, the treaty ought to be annexed to the laws. mr. w. asked, was this not done? it had been promulgated in the way in which treaties are directed to be promulgated; and he would ask, if a case were to come before the judges upon it, whether they would not be bound to consider it as the law of the land? if the member from virginia (mr. giles) had been opposed to the treaty going into operation, why did he not take the proper mode to prevent it? he knew of the resolution which directed how treaties are to be promulgated and annexed to our code of laws, he knew the treaty had arrived, and he might have had the subject discussed. if a majority were for preventing the treaty from being promulgated in the ordinary way, then the resolution might have been done away, and some other mode adopted which was thought most prudent. the same gentleman next contended that law can annul treaties. but he believed that the constitution decided that there was no other way of repealing treaties but by mutual agreement of the parties, or by war. to break one article of a treaty was to break the whole, and war, or a new treaty must be the consequence. the reason he gave why laws could repeal treaties, was, because laws were the will of the people. treaties, mr. w. said, were as much the will of the people as laws. the people had fixed barriers to the different branches of the constitution, which could not be overleaped without endangering the whole fabric. in speaking of power, gentlemen say it is more likely to be abused in the executive than in that house. but, in the year , when amendments were first proposed to the states, a gentleman from virginia (mr. madison) asserted "that it was less necessary to guard against abuse in the executive department than any other, because it was not the stronger branch of the system, but the weaker; it therefore must be levelled against the legislative, for it is the most powerful, and the most likely to be abused, because it is under the least control;" and mr. w. quoted several laws which had originated in that house, by which very large sums of money had been expended to little purpose, which he would explain when they were in a committee of the whole on the report from the committee of ways and means. but gentlemen say, "have we not as much power as the house of commons in great britain?" he answered, their powers were limited; the constitution was their guide. he thought gentlemen proceeded as if they were about to form a constitution rather than discuss a constitutional question. some gentlemen had said, treaties of amity ought to be vested in the president and senate; others, that treaties for a cessation of arms ought to be vested in the executive; thus they wander, well knowing the ground they had taken was not tenable. it brought to his mind an observation made by an indian chief, in a treaty at albany, since the late war, who, after thanking the great spirit for directing them back in the good old path, which made them happy, lamented, that ever since they had wandered from that path, they had been miserable. so it would be with them if they left the constitution; they would wander from the right path, and involve themselves in difficulties. appropriations for the army and navy in great britain must be made annually, without which they must be discharged. by our constitution we may appropriate for two years for the army, and no mention as to what time for the navy; so that we can make appropriations for a longer time for our army and navy than in great britain. the gentleman (mr. giles) further observed, that the opinions entertained in that house three years ago, were not to influence them now; it was necessary however, in mr. w.'s opinion, that whenever nations changed their customs, some notice ought to be given of the change, that it might be known by nations with whom they may have any transactions. to prove this, he quoted _marten's_ law of nations. the treaty had been laid before them, that they might appropriate money for carrying it into effect. on the first of june, the british were to give up the western posts; if money was not appropriated, would they not be deceived? before he proceeded to remark on what had fallen from his colleague (mr. livingston) he would mention, that they had, for some years, in general concurred in their political opinions, and during the present session they had varied very little; in the question before the house, however, they should differ very considerably. soon after the constitution was framed, a convention was held in the state of new york, in which he had the honor to be a member. he was fully of opinion at that time, as he was now, that the treaty power was a dangerous power, and, in consequence, gave his dissent to it. he would proceed to remark on what had fallen from his colleague. he had said, how could they determine whether the treaty was constitutional or not, or whether an impeachment was necessary, without information? the papers, as he had said before, were open for ten weeks, during which time gentlemen might have had access to them. but that gentleman said, they had denied him of late, and so they had been to him; but he understood they were at the secretary of state's office, and might be seen there. he mentioned a case of a treaty with a foreign country, in which their minister might have received presents; but declared, that he did not believe there was any corruption in the negotiation of the treaty in question. it appeared to him, therefore, inconsistent still to talk of impeachment. suppose, for instance, his colleague was attorney general of the state of new york, and a man were to charge another with being guilty of burglary, whose character, reputation, and standing in life were irreproachable, would he subpoena him to meet the charge? no, he would not. and still the case is exactly similar to the present. if, said mr. w., his colleague or any member of the house wanted the papers, they had only to rise in their place and declare there were grounds of suspicion for an impeachment; would any member refuse the call? but he presumed no such thing was thought of. why, then, expend so much precious time unnecessarily? the gentleman believed that the minister had deviated from the instructions originally given him; but that he received new instructions. whatever instructions were given to him, it appears, by the treaty being ratified, that he executed them to the satisfaction of his employer. it may be, said mr. w., that this house may determine that it has a check on the treaty-making power; but the next congress may say there is no such thing. whether there is, or there is not this check, it is necessary for the stability of the government to have it determined; and he would join in sentiment with the gentleman from maryland in a wish that it might be settled. but he would have the amendment constitutionally made; for, if we ourselves do not understand the constitution, it is not likely that our constituents at large should understand it. if i am wrong now in the true meaning of the constitution, i have been wrong since its adoption. the people are the sovereign; their will shall be my guide, from which i will not, knowingly, depart. i live in the midst of a body of plain but intelligent freemen, whose employment is the cultivation of the earth, and who prize nothing beyond the freedom they enjoy. they are jealous of their liberties, but they are obedient to, and willing to respect and support the laws of the land. how will they know the laws, if we do not understand the constitution after it has been in operation for nearly eight years? gentlemen observed, that if the treaty-making power was meant to be vested solely in the president and senate, it would have been said so explicitly; but, he thought, if the constitution had intended that house to have interfered in treaties, that would have been expressed, as a few words would have done it. his colleague asserted, that that house had the power of carrying into effect or not any treaty; but he thought the house obliged to carry into effect all treaties constitutionally and completely made. to support his doctrine, mr. livingston had referred to the practice of great britain, and singled out the treaty of utrecht. in england, said mr. w., the treaty-making power is in the king. a treaty, when made by him, pledges the public faith and binds the nation; but the courts of law and the officers of the revenue do not consider treaties as the supreme law (when they change the regulations of commerce or interfere with previous acts of parliament) until parliament has passed acts conformably to such stipulations of a treaty. the propriety, and, indeed, necessity of this rule, results from the monarchical form of that government, the power of the king alone to repeal existing laws being a just ground of apprehension. from a like apprehension, a treaty, though negotiated and made in all its parts by the president, must be submitted to the senate for their ratification. the senate is a popular assembly, and representing the states. the concurrence of two-thirds is equal on every principle of combining the public will with the acts of the constituted authorities to the sanction of parliament. in england, treaties of peace, of alliance, and, perhaps, many others, are perfect and binding without co-operation of parliament. the opinion of some is understood to be, and _blackstone_ seems to be of the number, that every treaty, when made by the king, is obligatory without the concurrence of parliament. the practice, however, is to lay treaties before parliament when laws are necessary to carry them into effect, and for parliament to pass such laws. and, although a very broad discretion has been claimed in parliament to pass or reject such laws, the uniform practice, except in one instance, has been to pass them. the faith of the nation is considered as pledged. the case where laws to carry the treaty into effect have been refused, is the treaty of utrecht, in . the credit of the example is much abated by the circumstances of the times when it happened. the duke of marlborough had been displaced, but his friends were powerful; a tory minister was in power and much hated; queen anne was decaying, and died that year, and the succession to the crown was doubtful. parties were ready to draw the sword against each other, and the most distinguished ministers were soon proscribed and fled the country. a civil war broke out in , the next year. one only example in such times, and the forerunner and cause of such events, weighs little against the course of practice in numberless cases, all issuing another way. it proves that the practice of parliament corresponds with our doctrine. if, however, their maxims are different, so is their constitution in this particular. the act of the king should be compared with the act of the president alone; and the ratification of the senate should be, and, by our constitution, it must be, considered equal to the sanction of parliament. the doctrine ascribed by mr. gallatin to the parliament affords a reason for their calling for papers; because, he says, they are to act upon them. yet such call is seldom made, and would probably be refused, if made without manifest occasion for the papers. our constitution has settled a different doctrine; and, as the papers cannot be needed, they cannot properly be asked for. he doubted not that the treaty lately concluded with great britain had ere now been laid before parliament, and a sum of money granted for recompensing spoliations committed in this country. should they then attempt to refuse appropriations for carrying the treaty into effect, on their part, where would be their national honor, their national faith? suppose the treaty were a bad bargain, that would not authorize them to break it. no: if a bad bargain be made to-day, make a better to-morrow. neither should they determine the thing before it came before them. probably they may not find it so bad as it had been represented; for though it might, in some respects, narrow our commercial intercourse, yet, perhaps, by so doing, the agricultural interest would be proportionally benefited. he was convinced that the agricultural interest was the true interest of this country. if by the treaty we find that it tends to the welfare of the farmer, we may conclude our negotiator had the true interest of his country in view; and it was his (mr. w.'s) opinion that a man taken from the plough and put on board a vessel was a man lost to the true interest of this country. this country is not like that of great britain: they are confined to small islands; we have a country extensive and fertile, and it is our duty to encourage settlers, increase our numbers, and, by so doing, we shall soon be in a situation to bid defiance to all the world. he was willing to encourage commerce to its full proportion, but not so as to injure the agricultural interest. the third article in the treaty had been quoted by a gentleman from maryland (mr. s. smith) as having a tendency to operate unequally in our impost duties; mr. w. observed he did not think that was very exceptionable, so far as it had been explained. he did not think the third clause of the treaty a bad one: it only went to this, that when great britain carried goods through our country they were to pay the same duty as american citizens. and would not this be a greater advantage to the united states than if they went up the rivers st. lawrence or mississippi, and paid no duty? all the duty received of them would be so much gain to the country. his colleague (mr. livingston) went on too contemporaneous a construction, and said that the house were better able to judge of the meaning of the constitution than the conventions which were held to consider upon its adoption. he did not think so. he said, he had always been called an anti-federalist, and was so considered to this day. he would willingly join to obtain an amendment to the constitution with respect to the treaty power; but, because he did not believe the constitution contemplated an interference in that house in respect to treaties, he could not agree to the proposed doctrine. mr. w. said, it was not necessary for him to go into the argument which induced the convention to fix the treaty-making power: it need only be mentioned that they knew how and where that power was exercised in great britain; and, in order to avert the difficulties which had arisen there, the convention vested the power with the president and senate; and, to guard against undue influence, directed that two-thirds of the senators present should concur with the president. the convention had many difficulties to surmount in this article; they had to do away the equal power the small states shared, under the confederation, with the large states. but, to do away the discordant interests of the different states and to give the small states satisfaction, agreed that all the states should be equally represented in the senate. in the treaty-making power each state hath an equal voice. to extend it further, for another check, without the consent of the smaller states, would be doing away, in part, that power which the small states had retained. he read the observations of one of the judges of the supreme court of the state of new york, when debating on the merits of the constitution in the convention held in that state, to prove that treaties were considered to be paramount to any law. among the several passages from the debates of the convention of new york, mr. w. read the following proposed amendment of mr. lansing, who was a member of the convention that formed the constitution of the united states, whose abilities and candor were not doubted by any who knew him: "_resolved_, as the opinion of this committee, that no treaty ought to operate so as to alter the constitution of any state; nor ought any commercial treaty to operate so as to abrogate any law of the united states." he believed that the amendments proposed in the virginia convention arose from their considering that there was no check in that house: the contrary supposition, he said, would be like rowing a boat one way and looking another. his colleagues read extracts from the journals to prove that the president had laid before that house instructions which he had given his ministers employed on the treaty business. he believed, when much money was likely to be wanted, it was prudent and right to do so. it was as if he asked that house whether it would agree to a proposed negotiation or declare war--as if he had said, "i cannot unlock your treasury; which way would you have me act?" it was inconsistent to say that he had diminished his power by asking advice. books, he said, might be produced without number; but nothing could be brought to justify the breaking of a contract constitutionally made. it has become the law of the land. the house has, indeed, the physical power to refuse to appropriate to carry such a treaty into effect; but the constitution meant that what was done by one branch of the legislature should be confirmed by the others, except the act was unconstitutional. if a treaty was constitutional, they were therefore impliedly bound to carry it into effect. his colleague denied that any danger lay in the popular part of the government; he thought differently. to say there was more danger to be apprehended from the executive than the legislative branch of government was unsound doctrine. he should enlarge on this subject when the treaty came before the house, and he trusted he should clearly show that the greatest danger of abuse lay in that house. have there not bills originated in this house which have caused the expenditure of much money to very little purpose? is there not more responsibility in one man than in large bodies? and was not the member from virginia (mr. madison) of this opinion, as i have before stated? where have (said mr. w.) the acts originated that have cost so much money to be expended, by reason of which the report of the committee of ways and means states the necessity of borrowing such large sums to meet the necessary demands--the laying additional taxes and duties? did these acts originate with the executive? no. where then? in this house. all money-bills must originate in this house, being so directed by the constitution. though his colleague represented great britain as being in chains, yet he was drawing precedents from their government. at first, he thought he had fallen in love with the government, but he afterwards found his mistake. in that government, said mr. w., one precedent creates another, and they soon accumulate and form laws; but his friend was drawing precedents from that nation to support the checks, which, mr. giles said, had been for six years completely routed from the government of the united states. he feared, if the gentlemen were permitted to take their course, we should soon have a curious sort of constitution. but, to conclude, the ruin or prosperity of the nation depended much on the present government. he said, if the people flourish and are happy; if they are industrious and at peace, they will not complain of their government. if this be the case, it will scarcely be admitted that the checks in the government have been completely routed for these six years; if they were, however, he thought the nation could not be better than happy. mr. milledge observed, that as the hour of adjournment was drawing near, he would not detain the committee long. the length of the debates, on both sides of the question, had left him little room for observation; but as a constitutional question had been involved in the resolution before the committee, and as all constitutional questions were important in their nature, he could not think of giving a silent vote. he perfectly agreed with the gentleman who had spoken last, from the state of connecticut, that we ought not to put our foot from off the constitution, and on that, he said, he would stand. nor did he think it necessary to resort to this or that government to know their usages, or to know what was said in this or that state, or what was written by this or that man--but, according to the common and most obvious meaning of words contained in the constitution, to draw our conclusion. that part of the constitution which had been often mentioned, he begged that he might be permitted to read--that all treaties made by the authority of the united states should be the supreme law of the land. he asked, what was the authority of the united states? powers derived from the constitution. what are these powers? legislative, executive, and judicial. the better to understand these, let us see, said he, in what order they present themselves to us. in the constitution we find that in the very first section all legislative powers herein granted shall be vested in a congress of the united states, which shall consist of a senate and house of representatives. this, then, is the legislative power, the statute making power, the ordaining power, the enacting power, or any other name by which it may be called. now, then, said he, let us see the extent of this power. in the th section, congress shall have power to make _all_ laws. it would be necessary, he said, to attend to the monosyllable _all_. if the president and two-thirds of the senate have a right to make a law, do congress make all laws? certainly not. the constitution being his guide, he felt supported by a just confidence in his opinion; but he would not say but he might be mistaken, and was unwilling to commit himself. it was his opinion, then, that treaties ought to be bottomed on a law before they can have any binding influence. to elucidate this, he said, it would be necessary to read the whole of the clause: congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, (which are, he said, seventeen in number, particularly expressed,) and _all_ other powers vested by this constitution in the government of the united states, or in any _department_ or officer thereof. here, again, he observed, we find the monosyllable _all_. what does it import? every one--the whole. of what? of all other powers vested by this constitution in the government of the united states, or in any _department_ or officer thereof. what is the president and two-thirds of the senate? the treaty-making _department_. therefore, being a _department_, whatever powers are vested in them by the constitution cannot be carried into execution but by a law, otherwise the clause in the constitution means nothing. what is a law? the will of the people made known. where is that will to be found? in the senate and house of representatives of the united states in congress assembled. are the president and two-thirds of the senate congress? no; therefore they cannot make a law. the gentleman from new hampshire asked, what do the president and two-thirds of the senate operate upon? i answer, with him, on treaties; but in their nature they are only a department, and whatever a department does cannot, he repeated, be carried into execution but by a law. the treaty-making power is an intermediate department, and no instrument they can make can operate the repeal of a law, the same force being required for a repeal as to enact. the gentleman from rhode island observed, that if the house of representatives was to have a control over treaties, small states might be injured in their commerce, because the representation on that floor was unequal. mr. m. observed, that though his state was not a small state, yet it was small in representation, but he apprehended no danger. under the articles of confederation, it was a government of states; under the present government, it was a government of departments, of checks. he said, the local interest of one state was so blended with another that the security of the one became the security of the whole, founded on a proportion of sovereignty surrendered by each to the whole, and each drawing from the whole its proportion of security. let us then, said he, examine the compact made by each with the whole on the score of commerce. here he read part of the th section: no tax or duty shall be laid on articles exported from any state; no preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another. he said, the negotiators of the treaty, in the th article, had laid a prohibition on the exportation of cotton to any part of the world, except in british vessels--cotton, the growth of our own soil, an important staple in the two southern states, particularly in the one he had the honor to represent. but it is said, and so we find it, that this article is suspended, and open to further negotiation. he called on the committee for any member to deny that the principle did not still exist. he said, then, if a principle still exists in that treaty which militates with a fundamental principle, a principle in the constitution, he left to the committee, which ought to yield. were this principle to prevail, it would destroy a vital part of the constitution, and injure the agriculture of the states. he called on that gentleman to beware of admitting such a principle; for, if once allowed, it would extend not only to the cotton of georgia, but to the flaxseed of rhode island, the flour of pennsylvania, and the tobacco of virginia. mr. m. concluded by observing, that, from all he had said, it was to be understood that the powers of legislation were only with congress, and that the house of representatives could not, on the subject before them, legislate without information. before he sat down, he could not help observing that it was somewhat strange that the first treaty negotiated under the present government with a european nation, should produce such a contrariety of sentiment on the meaning of the constitution, and that he was reminded by this circumstance of the pertinent words of a celebrated writer: "the works of human invention are progressive, and are not completed but by degrees. at the last improvement we are apt to sit down satisfied, and vainly imagine that we have accomplished the end we have proposed, but time soon unravels the fine-spun system, and we find ourselves obliged to interweave fresh materials to repair the disordered texture." mr. kitchell observed, that he could not think of giving a silent vote on so important a question as this had become; but he should not go into an argumentative discussion on the subject, nor should he inquire into the opinions held in different conventions at the adoption of the constitution, or refer to great britain for precedents. he would look at the constitution alone, and see what were the powers given to the different branches of government. when it says that such and such powers are vested in congress, and such in the executive, he would abide by that decision. where that instrument says congress shall lay and collect taxes, regulate commerce with foreign nations, establish a uniform rule of naturalization, provide for the common defence, &c., and that the executive shall have power, by and with the consent of two-thirds of the senate, to make treaties, appoint ambassadors, &c., the directions of the constitution must be abided by. he would inquire what treaties could be entered into by the president and senate, without infringing upon the powers placed in congress? he believed treaties of peace, of amity, and friendship, could be made by them. if this could be done, he said, those were the powers meant to be vested in the president and senate, and not that treaties should embrace objects which are expressly appointed to the management of congress. in this view, the president and senate would not have the power to influence that house in their proceedings; but commercial or other treaties which embraced objects the regulation of which was placed in congress, must be laid before them for the purpose of their passing or refusing to pass laws to carry them into effect, in the same way as treaties with the indians had been laid before them. he did not think the question of itself before the house important, as it related to the production of papers, but only as it involved in it an important principle, viz: that when treaties were made by the president and senate, and presented to that house, they had nothing to do but appropriate money to carry them into effect. it was true gentlemen had seemed willing to allow them what they called discretion; but it was such a sort of discretion as a criminal might be said to have, who was told he might choose this or that posture of suffering, but that he must die. it had been said that the president and senate were equally the representatives of the people with that house. he would inquire how they became so? the constitution has appointed that representatives shall be chosen by the people in proportion to their population. were the senate so chosen? no. the people have no vote at all in choosing them. are they amenable to the people for their conduct? no. therefore, in no shape can they be called the representatives of the people. the senate, he said, represented the several state legislatures, and that house the people at large. he was sure, therefore, that every thing in which the interests of the people at large were concerned should be submitted to their consideration, before it was carried into effect. a great deal, he observed, had been said upon this subject, some things well said, and a good deal that might have been as well unsaid, for any good effect it was likely to produce. he was sorry to hear what had fallen from a gentleman from rhode island with respect to the interests of small states. he said he was himself a representative of a small state, and he believed his constituents were well satisfied with the present distribution of power, and did not wish that of the president or senate to be increased. he did not think what fell from his colleague, when he said gentlemen wished to amuse the people with the cry of liberty, liberty, and spoke of the groans of three or four hundred thousand slaves assailing his ears, was meant as a reflection upon any gentleman in that house who might hold slaves; but an earnest wish that the people at large might never bend their necks to slavery. he did not think the subject of the treaty at all before the house. he should give his vote for the papers; not so much on account of their being of great importance in themselves, but in order to repel the doctrine, that they had no right to discuss the merits of any treaty whatever. march .--in committee of the whole on mr. livingston's resolution: mr. coit said, the attention of the committee was doubtless fatigued with the subject before it; to those gentlemen who had already delivered their sentiments upon the occasion, he need not make any apology; and to those who had not done so, he would assure them that he would not occupy much of their time. most of the gentlemen who had gone before him, he observed, had regretted that the debate had taken the turn it had, but he was happy it had taken such a turn. it appeared to him, that the motion was intended as a stepping-stone to a violation of the rights of the other branches of the government by that house. it became him when he made a declaration of this kind to say, that he did not impute other than pure motives to any member of that house. he believed the general wish was to discover the true sense of the constitution; yet it was not extraordinary if in doing this men were actuated by the sentiments which they had long been in the habit of considering as well-founded, to lean to that construction which most favored their favorite opinions. he had no idea that any gentleman meant to make inroads on the constitution; but it was his opinion that if the doctrines now insisted upon prevailed, they would have that effect. he was happy, for two reasons, that the true ground of the present motion was made to appear. because, if the resolution had passed without discussion, the motives which led to it would not have been seen; and because he wished the question of what were the powers of that house, with respect to treaty-making, to be discussed, independent of the treaty, which was likely soon to come before them. they stood now on the pure ground of an abstract constitutional question. some obscurity, mr. c. thought, had arisen from not distinguishing the application of arguments to the different principles on which the resolution had been advocated, which he should endeavor to avoid. he considered the treaty-making power as absolutely vested in the president and senate; still, that when legislative acts were necessary to carry a treaty into effect, the legislature were not without discretion in the passing of them; if the legislature had a hand in making treaties, there could be no question of the propriety of calling for papers; he should then, in the first place, examine the propriety of calling for papers, taking for granted that the legislature had no hand in making treaties. if they were to consider the power by which a treaty was made, there would be found two nations concerned, whose consent would be also necessary to repeal it. but were there no other ways of cancelling a treaty? there were certainly ways of breaking a treaty. there were circumstances in which the breaking of a treaty would be justifiable. for instance, if, before a treaty was carried into effect, there was such a change of circumstances as to make it necessary to declare war; could they not discuss the subject, whether it were more advisable to carry into effect the treaty, and keep at peace, or break it and declare war? if a question of this kind came up, there could be no impropriety in looking into it; not with an idea of having any concern in making the treaty, but because such alterations had taken place in the state of affairs, as to make it necessary to discuss the propriety of going to war. there was another point of view in which that house had a check on treaties. granting that a treaty is completely made, the subject of appropriation must come before them. gentlemen had been understood to say, that no discretion could be exercised in appropriating the necessary money for carrying a treaty into effect. but he was of a different opinion; he believed, that though they had nothing to do with the making of treaties, yet when they were called upon to appropriate, they must exercise their discretion. it was true, that in general when treaties were made, it would be the duty of that house to carry them into effect, in the same way as they found it their duty to carry into effect existing laws; but he said, there were justifiable grounds of refusing to appropriate money to carry into effect both laws and treaties. mr. c. referred to the case of appropriations for the army. suppose, said he, an army was raised for four years; at the end of two years a fresh appropriation is requisite to support it; but the legislature has a discretion in doing this, or where was the use of the constitutional regulation of confining appropriations to two years? he considered, that there was some analogy between such cases of appropriation, and those requisite for treaties. when a treaty is made, the nation is bound by it, and its organ has an obligation upon it to carry it into effect. it might, in general, be said that there was an absolute obligation; but still there were particular cases in which that obligation did not hold. it appeared to him that a treaty might possibly be of so ruinous a nature, as to justify the refusing to carry it into effect. nay, he would say, that if half the lies and calumnies which had been spread throughout the union with respect to the late treaty with great britain were true; if the negotiator had been bribed; if he had given up the rights of his country; if their liberty and independence had been sacrificed; if the president and senate had been bribed by british gold; if he had any idea of that kind, he would not agree to carry the treaty into effect; nor should he conceive the national faith bound by such an instrument; no matter what grounds were taken to justify the refusal, whether constitutional or revolutionary. if these principles were just, he said, it would be allowed that that house had a discretionary power with respect to appropriating to carry a treaty into effect, though it had nothing to do with making it. no cause, he said, had been shown for calling for papers. why, then, call for them? gentlemen talked about impeachment? they might impeach without papers. but did they want to bring forward an impeachment? no such thing; it was only to cover the real drift of the motion that this was mentioned. did any gentleman think there was sufficient evil in the late treaty with great britain to authorize them in refusing to carry it into effect? it appeared to him, that that house had a right to call for any papers which might throw light on their deliberations. but they must also consider, that there was a discretion to be used by the executive in giving up papers in his hands. when there are papers in his hands which that house had real occasion for, it was important that they should be brought forward; but, he said, as long as a proper confidence subsisted between the two branches of the government, if that house asked for papers which the president thought it improper to send them, he would decline doing it. but it is not contended, that the papers which are the object of the present resolution will be of any real use to the house. the gentleman who brought forward the motion had read them through, and the most that he said on the subject was, that the negotiator had not complied with some of the first instructions which were given to him. another ground of calling for the papers, which was to him a pleasing ground, was that of publicity; for he fully agreed with the gentleman from georgia, that the more public governmental proceedings could with propriety be made, the better; but that house had not the right to direct the president on that head; they ought rather to leave it to him to publish the papers, or not, as he pleased; for, if they considered the president as attentive at all times to the duties of his office, it would be arrogancy in that house to attempt to influence him in that particular. but the main point in dispute was the force and effect of the treaty-making power. what were the powers and privileges of the house on the subject? in pursuing this inquiry, he was pleased with the remark of the gentleman from georgia, that in examining into the meaning of the words and phrases, they must take the meaning that was generally given to them, and if they could find out the true import of the phrase _make_ treaties, it would remove all doubts on the subject. he hoped, for this purpose, that gentleman would have examined the proceedings of his own country; but, instead of doing this, they find him referring to the practices of great britain. the president and senate, mr. c. observed, were expressly authorized to make treaties. to what should they compare treaties? might they not say that they were betwixt nations what bargains were betwixt individuals? and, after he had employed an agent to make a contract, with full discretion, and he had in pursuance of his authority made it, was it not binding? though in public as well as in private contracts he acknowledged there might be circumstances which would justify a non-compliance with the terms of the bargain; yet, in case all the circumstances had been fair, the contract must be complied with. it appeared to him not unimportant to consider whether, when treaties were made, they were not the laws of the land. a power to make, carried in his mind a power to complete. but if this were doubtful, where should they look for information? he expected the gentleman from georgia--knowing him to be well acquainted with the proceedings of government for a long time--would have referred them to the old confederation. it would certainly have been more natural to have referred them to the old congress than to the parliament of great britain. if they looked into the powers of the old congress they would find that they had the power to enter into treaties and alliances, which he apprehended to be the same power as that placed in the president and senate in the present government; and it was natural to conclude that a treaty made by the present power was equally binding with those made under the old government; for it will be recollected that the general power was delegated to the general government; and if they had the same powers, he could not see that there should be any difference in the exercise of them. if it had been intended otherwise, the convention at the forming of the constitution, would have added a proviso that no treaty should be made by the president and senate which included commercial regulations. it appeared to him that a subject of such recent date as their constitution could not receive much elucidation from the opinions held concerning it in the conventions, at or about the time of passing it. he confessed he found little aid to assist his mind to form a judgment on the matter from any other source than the constitution itself; indeed he thought the light was there so clear that nothing more was wanted. there were four members, he said, in that house who were members of the convention who formed the constitution. the sentiments of two of those gentlemen he was not acquainted with; but two of them had spoken on this subject. if those gentlemen had come forward and declared that such a power as the treaty power was contended to be was not intended to be placed in the hands of the president and senate, but that that house was meant to have certain powers with respect to treaties, he would not say but that such a declaration would have shook his faith on the subject; for, though he should still have been guided by the instrument itself, yet authority so respectable would have its weight on his mind. but what did the gentlemen who have delivered their sentiments say? the gentleman from georgia (mr. baldwin) mentioned the necessity of inquiring into the true meaning of the phrase, "make treaties;" and, instead of telling them what had been the practice in the old government, he went over the water to great britain. what did they get from the gentleman from virginia, (mr. madison?) he produced five sets of doubts and one problem upon the construction of the constitution. this had the same effect on his mind as if they had declared that the meaning of the constitution was well understood, in the convention which formed it, to vest the treaty-making power completely in the president and senate. it was certainly matter of great importance where the different powers of government were placed, and caused considerable debates in the convention. some thought the treaty-making power should be placed in the legislature, but that was greatly objected to; it was urged by others that the powers should be in the president and a majority of the senate; it was again proposed that two-thirds of the whole number of the senators should consent to a treaty--but finally passed as it is found in the constitution. he was far from accusing those gentlemen with impropriety of conduct on the occasion. if they think it would be better for the interests of the people that that house should have a share in the making of certain treaties, and believe the constitution will bear that construction, it was not for him to impeach the purity of their motives or propriety of their conduct; but it would require strong arguments to convince his mind that the constitution placed any such power in that house, contrary to the unanimous understanding of the members of the convention who formed it. the arguments which had been urged for placing certain powers in that house with respect to treaties were drawn from the practice of great britain, and from the danger of the treaty power being vested wholly in the president and senate. he did not think that the government of great britain had been introduced for any other purpose than illustration, though other use had been made of it out of doors. with respect to the principles of that government, let them inquire into its sovereign power; for it was a just position that treaties must be made by the sovereign power of a nation. where should they find that power in great britain? the king and parliament were allowed to be omnipotent. parliament have altered the continuation of their existence from three to seven years. where must they look in the united states for the sovereign power? they must go to the people at large; for in them it lay alone. their constitution limited the powers of every branch of government, and it was therefore improper to apply foreign ideas to their constitution. but if a treaty was made by the agents of a sovereign power, authorized for the purpose, the end was answered: in the united states, the sovereign power can act only by its agents. the legislature of great britain, he said, it was true, consisted of three branches, and that was almost the only feature in that government resembling that of the united states. in great britain, their executive is an hereditary monarch, whereas the president of the united states is elected every four years. their house of lords consisted of bishops and an hereditary nobility--the bishops appointed by the crown, and the nobility were increased at the king's pleasure; whilst the senate of the united states is elected every six years. gentlemen say the senators are not elected by the people, but they are chosen by the legislatures of the different states, who are elected by the people. the house of commons in britain, which is the only representation of the people their government contains, is elected by a very small part of the people; and the crown has such an influence in it as to be able to carry most questions at its pleasure. how could it then bear a comparison with that house, who were chosen by the whole people every two years? the absurdity might be admitted, in that government, that the king had the power to make treaties, and that the sanction of the legislature was still necessary to give them legal validity, because the influence of the crown was so great in both houses as to carry any measure it pleased through them. but it would not do in this country. the comparison, therefore, betwixt the two governments fails, and no arguments can be drawn from it. the other argument respecting the danger of the power being placed solely in the executive arose from the comparison with great britain. if the powers of the president and senate of this country could with any tolerable degree of justice be compared to those of the king and house of lords in great britain, as little taste as he had for revolutions, he would not say but he should be induced to join gentlemen, either by fraud or force, to overturn the constitution. he looked on the representation in the senate to be as complete as in that house. gentlemen were very fond of calling that house the popular branch of government. he agreed that a criticism on words was in general trifling. that gentlemen from virginia might assert this, he allowed, as they had nineteen members out of the hundred and five in that house, and in the senate only a fifteenth part of the body; but gentlemen did not mean, when they spoke on that subject, to have reference to particular states, but to the whole. the senators and representatives were regularly apportioned for the whole union; and, though on different principles, were as completely represented in the one house as in the other. mr. c. concluded with saying, that he had no doubt the powers vested by the constitution were well vested; and if the constitution was fairly considered, little doubt could remain on the subject. but if the house passed the resolution now before the committee, he should not consider the question as decided; but if the construction was still insisted upon, he was happy the constitution was not wholly in their hands--that there were joined with them in the guardianship of it, the president, the senate, and the people of the united states. mr. hillhouse said, it was with diffidence he rose to speak on a subject which had been so copiously and ably handled by gentlemen who had preceded him. it had been his intention to have given a silent vote on the resolution on the table, but the turn which the debates had taken--involving an important constitutional question, relative to the powers vested in the different branches of government--seemed to create a necessity of expressing his sentiments, lest by his vote he might seem to subscribe to certain doctrines in the latitude in which they had been laid down. and as he should differ in some respects from most of the gentlemen that had spoken, he asked the indulgence of the committee whilst he made a few remarks on a subject which he conceived to be of vast importance, as a wrong decision might give a direction to their government which might be of serious consequence. on the one hand, he did not think that treaties could not, under any circumstances, be the subject of legislative consideration or discussion, and that they were not to look into them. it appeared to him, that they not only had the right, but that it was their indispensable duty to look into every treaty, when called upon to aid in its operation; to see whether it had the constitutional forms; whether it related to objects within the province of the treaty-making power, a power which is not unlimited. the objects upon which it can operate are understood and well defined, and if the treaty-making power were to embrace other objects, their doings would have no more binding force than if the legislature were to assume and exercise judicial powers under the name of legislation. it might be proper, also, to examine the merits of a treaty, so far as to see whether it be of such a ruinous nature as, according to the law of nations, it would be null, and whether they would be justified in withholding legislative provision to carry it into effect. he also considered treaties as subject to legislative control, so that their operation, so far as related to the people of the united states, might be suspended or annulled whenever, in the opinion of the legislature, there was sufficient cause. and further, that the clause in the constitution which provides that no money shall be drawn from the treasury, but "in consequence of appropriations made by law," as vesting in the different branches of government a check adequate to every purpose of security. on the other hand, he did not consider the house of representatives as having a constitutional right to interfere in making treaties, or that a treaty needed any concurrence of that house, or legislative sanction, to make it the law of the land. he had always supposed that treaties were exactly on the footing of laws in their operation on antecedent laws, suspending and repealing such as were repugnant. treaties may sometimes require legislative aid to carry them into effect; so may laws, and they were constantly in the habit of making laws to carry into effect laws heretofore made. after these preliminary observations, mr. h. proceeded to inquire, not what ought to be, but what was the constitution of the united states? we were not, he said, in convention, but in the discharge of legislative functions under the constitution; and to understand the extent of the powers intended to be granted in the second article, section two, by these words, "the president shall have power, by and with the advice and consent of the senate, to make treaties, provided two-thirds of the senators present concur," we must advert to the general definition of the treaty-making power--what objects it may embrace, and how far it can interfere with legislative power. a treaty is a compact entered into by two independent nations, for mutual advantage or defence. nothing can, therefore, come within the treaty-making power but what has a relation to both nations, and in which they have a mutual interest. the object of this power is to secure to our citizens advantages in foreign countries which are without or beyond our legislative jurisdiction, to enable the treaty-making power to obtain which, it must necessarily be authorized to give some consideration or equivalent therefor. if the united states authorize an agent to make a bargain or purchase, the power of binding the united states for a reasonable consideration is necessarily given. whenever the treaty-making power departs from these rules, it is without its jurisdiction, and such a treaty would be of no validity. under this view of the subject, if we look into our code of laws, we shall find few of them that can be affected, to any great degree, by the treaty-making power. all laws regulating our own internal police, so far as the citizens of the united states alone are concerned, are wholly beyond its reach; no foreign nation having any interest or concern in that business, every attempt to interfere would be a mere nullity, as much as if two individuals were to enter into a contract to regulate the conduct or actions of a third person, who was no party to such contract. he could, he said, illustrate his idea more readily by adverting to a law, mentioned as being affected by the present treaty, which was the revenue law; which provides that certain duties shall be paid on goods imported into the united states, and on goods coming in foreign bottoms ten per cent. advance on the amount of such duties. this is a law no treaty can repeal, admitting the repealing power in its fullest latitude, because no foreign nation can have any interest or concern in the duties payable by our own citizens into our own treasury. all that a treaty could do, would be to suspend or arrest its operation, so far as the citizens or subjects of the nations with whom we treated, were or might be affected by it. the only operation which the british treaty has upon that law is, that in consideration of our being freely admitted to the fur trade and the trade into canada, which opens to the enterprise of our citizens a vast source of wealth and advantage, we only give in return to the subjects of the king of great britain the privilege of bringing, by land or inland navigation, into the united states, goods for which they pay no more duties than our citizens pay on goods imported in american bottoms. british subjects have always been permitted to reside and trade in the united states, and peltry is to be duty free in the territories of each. according to this definition of the treaty-making power, and as far as he could judge, he said, it was correct; it cannot have that unlimited extension which has been ascribed to it. it cannot be that monster which has been described as about to swallow up all the legislative powers of congress; nor can there be any danger of the president and senate having it in their power, by forming treaties with an indian tribe or a foreign nation, to legislate over the united states. the treaty-making power cannot affect the legislative power of congress but in a very small and limited degree. because a treaty or an executive act may, in some instances, arrest the operation or progress of a law, it is no argument against the existence of the power. in article first, section eighth, of the constitution, a specific power is granted to congress to provide for the punishment of the counterfeiters of the securities or coins of the united states. in another article, the president is authorized generally to grant reprieves or pardons for offences against the united states, excepting in cases of impeachment. can any one seriously contend that the president has not the power of granting a pardon to a counterfeiter of securities or coins, because it would suspend and defeat the operation of a law, on a subject, specially delegated to congress? if this doctrine be true, that all legislative power may be exercised by the treaty-making power, congress, under the old confederation, had unlimited legislative power over the states. the old confederation vested in congress an unlimited power to make treaties, excepting only that the states were to be at liberty to impose like duties on foreigners as on their own people, and that the exportation or importation of goods was not to be prohibited. was it ever imagined that, by this general power, congress had a right, by forming a treaty with a foreign power, to legislate over the states to any extent? suppose congress, instead of taking so much pains to persuade the states to consent to their laying the five per cent. impost, and in obtaining which they were finally defeated by the refusal of one state, after every possible exertion, had undertaken to have it done by treaty? would not the measures have been reprobated with one voice, and the treaty considered as a nullity? in the first place, in art. i., organizing a legislative body, and delegating to them, not all, but a part only of the legislative power of the states, in these words: "all legislative powers herein granted shall be vested in a congress;" and among the specified powers, the right of regulating commerce with foreign nations. how were they to regulate commerce? not by the exercise of the treaty-making power. this article of the constitution has not the least relation to that kind of power: it was legislative power only that was meant: it vested congress with the whole power, as far as the object could be accomplished by a legislative act; but this power would embrace but a small part of the objects which come within the term of regulating commerce with foreign nations; it could extend no further than the bounds of our own jurisdiction. there is not a single expression that looks like authorizing them to act in any other than their legislative character. the constitution then proceeds, in the second article, to the establishment of an executive power, to be vested in a president, and in the second section, says: "the president shall have power, by and with the advice and consent of the senate, to make treaties, provided two-thirds of the senators present concur." the most general terms are used, and such as under the old confederation had been understood to embrace every kind of treaty, commercial as well as others, and had been exercised in the most ample and unlimited manner, and the treaties thus formed had been declared and adjudged to have the force and operation of a law, and that they repealed all laws that were opposed to them; and these treaties were then in full force and operation, and were the supreme law of the land. it cannot be presumed that the framers of our constitution were ignorant of the laws of the land, or that they had not well attended to and examined treaties, which, by the constitution, they were again about to declare to be the supreme law of the land under the new government. now, if it really was intended that the treaty-making power should not be as broad, and have the same extension and operation as had been exercised under the old confederation, or that there was to be a distinction between commercial treaties and others, or that treaties generally should not so operate as to repeal pre-existing laws, or that the concurrence of the house of representatives, or sanction of congress, should, under any circumstances, be necessary to give validity or force to a treaty, how can we account for the total silence of the constitution on this subject, and that there should not be a single sentence in the whole instrument that even looks that way? if any limitation was intended, the convention certainly knew that it was necessary it should be inserted. when we examine the constitution, and see with what accuracy and care it is drawn up, how wonderfully every part of it is guarded, that there is not a single word but appears to have been carefully examined, and when we call to mind the members of that convention, and find them to have been the ablest and most accurate men of our country, we cannot presume that we should have been left to the sad alternative, for the purpose of explaining so important an article of our constitution, which might have been so easily made definite, to be obliged to resort to the british house of commons for precedents, and those too which were derived from the most turbulent periods of the government of that nation; when, it is a possible case, that the change of a ministry, or the rage of party, might have been more immediately the object of pursuit than the true interest of the nation; more especially as the practice of our own government, and the legal opinion of our own country, were directly opposed to such a construction. but if all this might be supposed not to have had sufficient weight to have induced the convention to have introduced such a limitation, or some intimation that such limitation was intended, they must have supposed it necessary when they handed out with the constitution, which were declared by the ratification thereof to be the supreme law of the land, treaties of every description, commercial as well as others. to me, the language of this transaction is, we have, by one article of this constitution, granted the treaty-making power, in general terms, to the president and senate. march .--[the question was taken on mr. livingston's resolution, which is in the following words:] "_resolved_, that the president of the united states be requested to lay before this house a copy of the instructions to the minister of the united states, who negotiated the treaty with the king of great britain, communicated by his message of the first of march, together with the correspondence and other documents relative to the said treaty; excepting such of said papers as any existing negotiation may render improper to be disclosed." the division on this resolution, in committee of the whole, was--for the resolution , against it --majority . the resolution was then taken up in the house, and the yeas and nays being called upon it, were taken, and stood yeas , nays , as follows: yeas.--theodorus bailey, david bard, abraham baldwin, lemuel benton, thomas blount, richard brent, nathan bryan, dempsey burges, samuel j. cabell, gabriel christie, thomas claiborne, john clopton, isaac coles, henry dearborn, george dent, gabriel duvall, samuel earle, william findlay, jesse franklin, albert gallatin, william b. giles, james gillespie, andrew gregg, christopher greenup, william b. grove, wade hampton, george hancock, carter b. harrison, john hathorn, jonathan n. havens, john heath, james holland, george jackson, aaron kitchell, edward livingston, matthew locke, william lyman, samuel maclay, nathaniel macon, james madison, john milledge, andrew moore, frederick a. muhlenberg, anthony new, john nicholas, alexander d. orr, john page, josiah parker, john patton, francis preston, john richards, robert rutherford, john s. sherburne, israel smith, samuel smith, thomas sprigg, john swanwick, absalom tatom, philip van cortlandt, joseph b. varnum, abraham venable, and richard winn. nays.--benjamin bourne, theophilus bradbury, daniel buck, joshua coit, william cooper, abiel foster, dwight foster, nathaniel freeman, jr., ezekiel gilbert, nicholas gilman, henry glenn, benjamin goodhue, chauncey goodrich, roger griswold, robert goodloe harper, thomas hartley, james hillhouse, william hindman, john wilkes kittera, samuel lyman, francis malbone, william vans murray, john reed, theodore sedgwick, samuel sitgreaves, jeremiah smith, nathaniel smith, isaac smith, william smith, zephaniah swift, george thatcher, richard thomas, mark thompson, uriah tracy, john e. van allen, peleg wadsworth, john williams. recapitulation.--yeas , nays , absent -- --the speaker --whole number of representatives .[ ] mr. dayton, the speaker, in committee of the whole, voted against the resolution. march .--the committee, (messrs. livingston and gallatin,) appointed to present the resolution agreed to yesterday to the president, reported, that the president answered, that he would take the resolution into consideration. march .--the following message was received from the president in answer to the resolution of the house: _gentlemen of the house of representatives:_ with the utmost attention i have considered your resolution of the th instant, requesting me to lay before your house a copy of the instructions to the minister of the united states, who negotiated the treaty with the king of great britain, together with the correspondence and other documents relative to that treaty, excepting such of the said papers as any existing negotiation may render improper to be disclosed. in deliberating upon this subject, it was impossible for me to lose sight of the principle which some have avowed in its discussion, or to avoid extending my views to the consequences which must flow from the admission of that principle. i trust that no part of my conduct has ever indicated a disposition to withhold any information which the constitution has enjoined upon the president, as a duty, to give, or which could be required of him by either house of congress as a right; and, with truth, i affirm, that it has been, as it will continue to be, while i have the honor to preside in the government, my constant endeavor to harmonize with the other branches thereof, so far as the trust delegated to me by the people of the united states, and my sense of the obligation it imposes, to "preserve, protect, and defend the constitution," will permit. the nature of foreign negotiations requires caution; and their success must often depend on secrecy; and even, when brought to a conclusion, a full disclosure of all the measures, demands, or eventual concessions which may have been proposed or contemplated would be extremely impolitic; for this might have a pernicious influence on future negotiations; or produce immediate inconveniences, perhaps danger and mischief, in relation to other powers. the necessity of such caution and secrecy was one cogent reason for vesting the power of making treaties in the president with the advice and consent of the senate; the principle on which the body was formed confining it to a small number of members. to admit, then, a right in the house of representatives to demand, and to have, as a matter of course, all the papers respecting a negotiation with a foreign power, would be to establish a dangerous precedent. it does not occur that the inspection of the papers asked for can be relative to any purpose under the cognizance of the house of representatives, except that of an impeachment; which the resolution has not expressed. i repeat, that i have no disposition to withhold any information which the duty of my station will permit, or the public good shall require; to be disclosed; and, in fact, all the papers affecting the negotiation with great britain were laid before the senate, when the treaty itself was communicated for their consideration and advice. the course which the debate has taken on the resolution of the house, leads to some observations on the mode of making treaties under the constitution of the united states. having been a member of the general convention, and knowing the principles on which the constitution was formed, i have ever entertained but one opinion on this subject, and from the first establishment of the government to this moment, my conduct has exemplified that opinion, that the power of making treaties is exclusively vested in the president, by and with the advice and consent of the senate, provided two-thirds of the senators present concur; and that every treaty so made, and promulgated, thenceforward becomes the law of the land. it is thus that the treaty-making power has been understood by foreign nations, and in all the treaties made with them, _we_ have declared, and _they_ have believed, that when ratified by the president, with the advice and consent of the senate, they became obligatory. in this construction of the constitution every house of representatives has heretofore acquiesced, and until the present time not a doubt or suspicion has appeared to my knowledge that this construction was not the true one. nay, they have more than acquiesced; for until now, without controverting the obligation of such treaties, they have made all the requisite provisions for carrying them into effect. there is also reason to believe that this construction agrees with the opinions entertained by the state conventions, when they were deliberating on the constitution, especially by those who objected to it, because there was not required in commercial treaties the consent of two-thirds of the whole number of the members of the senate, instead of two-thirds of the senators present, and because, in treaties respecting territorial and certain other rights and claims, the concurrence of three-fourths of the whole number of the members of both houses respectively was not made necessary. it is a fact, declared by the general convention, and universally understood, that the constitution of the united states was the result of a spirit of amity and mutual concession. and it is well known that, under this influence, the smaller states were admitted to an equal representation in the senate, with the larger states; and that this branch of the government was invested with great powers; for, on the equal participation of those powers, the sovereignty and political safety of the smaller states were deemed essentially to depend. if other proofs than these, and the plain letter of the constitution itself, be necessary to ascertain the point under consideration, they may be found in the journals of the general convention, which i have deposited in the office of the department of state. in those journals it will appear, that a proposition was made, "that no treaty should be binding on the united states which was not ratified by a law," and that the proposition was explicitly rejected. as, therefore, it is perfectly clear to my understanding, that the assent of the house of representatives is not necessary to the validity of a treaty; as the treaty with great britain exhibits in itself all the objects requiring legislative provision, and on these the papers called for can throw no light; and as it is essential to the due administration of the government, that the boundaries fixed by the constitution between the different departments should be preserved--a just regard to the constitution and to the duty of my office, under all the circumstances of this case, forbid a compliance with your request. g. washington.[ ] united states, _march , _. reference of the answer to a committee of the whole. march .--mr. blount moved that the message be referred to a committee of the whole on the state of the union. mr. giles was of opinion it had better be referred to a committee of the whole simply. mr. sedgwick saw no reason for such a reference. he wished gentlemen would point out the object of the motion. mr. thatcher saw no good to be obtained by referring it. the house had requested the president to lay certain papers before them; the president answers, that he has none for them. why a reference? the house asked a question; the president answered in the negative--for what purpose refer the answer? what would be gained by it? mr. blount observed, that the president's message stands upon the journals of the house; he wished, also, that the house should state upon their journals the reasons which influenced them to make the request. perhaps, also, he said, a consideration of the message might lead to some further measure proper to be adopted. he was indifferent whether it was referred to a committee of the whole on the state of the union, or a committee of the whole, simply. mr. nicholas remarked that it was prejudging the question to say that nothing could arise out of a consideration of the message. the present is a crisis important in the affairs of the country, independently of the treaty. if the message was a proper subject of discussion, it was proper to refer it to a committee of the whole. he did not think a reference to the committee of the whole on the state of the union proper; because the message points to a subject differing from that referred to that committee. the investigation at any rate could produce nothing wrong. mr. giles said, that the member from north carolina (mr. blount) had explained the object he had in view by a reference. he preferred a reference to a committee of the whole, independently; because the message itself would furnish matter enough for consideration by itself. he should object to its being referred to the committee of the whole, who are to take into consideration the british treaty; because he never would consent to act upon that subject till the papers deemed material to the investigation were laid upon the table. he hoped the reference to a committee of the whole, generally, would be agreed to. it certainly would be proper for the house to state their reasons for the call. this call had given rise to a great constitutional question; the president had stated the reasons of his opinion; if the house were not convinced by them, (and he owned that, for one, he was not,) then it would be proper that they should present to the public their reasons for differing with him. mr. thatcher argued, that the reasons of the house were contained in the speeches of members in favor of the motion; the papers had been filled with them, and a pamphlet was going to be published containing them all. if this was not sufficient, the gentlemen had better direct the pamphlet to be copied on the journals. mr. williams considered this a new question, and wished for time to consider. the president's message is only an answer to a request of the house. it does not call for any thing to be done, then why a reference? such a reference would be unprecedented. entering the reasons of the house on the journals could produce no good. the house could not call for the papers more than they had done. he reminded the house that three weeks had already been spent in agreeing to the call; if they agreed to the present motion, they would spend as much more in agreeing to the reasons. the president, in his message, had mentioned the proceedings of the grand convention; this was a new topic to him not started in debate; when the treaty is before the house, perhaps they might wish to have the message before them on that ground. he should vote for the reference if gentlemen could assign (what they had not yet done) a proper motive for it. mr. sedgwick urged that the reasons of the majority would make a large book. were the committee of the whole to turn authors and write a dissertation on part of the constitution? the people did not send their representatives here for any such purpose, and he hoped it would not be persisted in. if the reasons of the house were to be drafted, he ventured to predict, that they would reach the end of their political career before the discussion that must necessarily arise upon them would be brought to a close. such a measure would be unprecedented, and lead to a great waste of time, and continually defeat the real objects of their mission. the session had been long enough already, and it must be lengthened to accomplish the necessary business of it. if the gentlemen would write books, he was confident every body would buy them; but he could not see the propriety of the present motion. mr. blount observed, that the president refers, in his message, to the debate in the house, and insinuates that the house contend for a right not given them by the constitution. this was the first instance of any importance of a difference between the house of representatives and the executive respecting a great constitutional point; it was then proper to make such a disposal of the message as to enable the house to state their reasons in support of their opinion, that the people may be rightly informed, that they may see the house is attempting no encroachment. mr. heath hoped the message would not be passed over in silence. the president surely is not infallible. a very important constitutional question is involved; he hoped the reference would be agreed to. mr. sitgreaves was against the motion. the house have made a demand on the president; the president refused it; this must naturally put an end to the correspondence on this subject. the difference of sentiment between the two branches is not sufficient reason for converting the journals of the house into a volume of debates. if the majority are to place their reasons, the minority cannot be denied the same indulgence; then for a rejoinder, rebutters, surrebutters, without end. from the practice of the house, in a case analogous, a rule of conduct for the present case may be drawn. when a bill is sent to the president, if he dislikes it, he negatives and sends it to the house with his reasons. those reasons are put on the journals, as directed by the constitution; but it contains nothing to direct or authorize the majority to register their reasons, and thus to enter into a controversy. the return bill is put to vote, and if two-thirds of each house agree to it, it passes; if not, it falls to the ground, but no reasons are entered on the part of the house. mr. gallatin said he did not expect the motion for a reference would have met with any opposition. some members are of opinion, that the message should be passed over in silence; others had resolved to ground some act upon it. there exists a difference, then, on this first point. the natural course is, then, a reference to a committee of the whole, to determine whether the house would act further on the business. in committee of the whole a discussion could be had concerning the propriety of acting further on the message. when the house made the call for papers, they did not give their reasons in the resolution; it was but a bare request. the president decided he could not comply with it. if he had stopped here, perhaps there might be grounds for ending the correspondence here; but he was not satisfied with this, but has entered into his motives for refusing. indeed, he had gone further; he had adverted to the debates had in the house. he may be mistaken as to the motives he ascribes to the house. in this delicate situation it is certainly right to notice the message, and to explain the real motives of the house in support of the motion. if it is a novelty to reply to an answer of the president's, it was equally a novelty, also, in making an answer to notice a debate in support of a resolution. it is necessary to refer the message to a committee of the whole, to determine how to act. he declared his mind was not made up upon this point, and therefore he wished it referred to a committee of the whole. not, however, to the committee on the state of the union, because there exists no connection with the subject referred to that committee. referring to a committee of the whole is deciding nothing, but only determining to examine; it could not decide on the propriety of acting. mr. cooper said, that the further the gentlemen travelled a wrong road, the further they would get out of a true course, and the more difficult it would be to return. mr. harper observed, that this was not the first attempt to get the house to do something, to commit them to do something further. a motion is now made to refer the message to a committee of the whole, and the house are told, that if the motion be carried, it is nothing, it is deciding nothing, but will only lead to an inquiry whether the house ought to act. he insisted that such a reference would in fact be determining that they would act, and then, in committee, they would determine how, and in that committee, he said they would be asked, why did the house resolve itself into a committee of the whole if not to act? so, when the indian treaty was ratified, a motion was made to request the president to lay it before the house. when it was laid before them, it was then contended that the house had a right to interfere in the treaty, or why ask for it? it could not be supposed that gentlemen of any understanding could be imposed upon by such a flimsy sophistry. it was now the proper time, and the house the proper place, he contended, to settle the principle whether the house would sanction any further proceedings on the message. what reason could be adduced for acting? it is said that the president has not only refused the papers, but given his reasons for the refusal, and that his reference to the debate, and the statement he made about the motives of the house, might be found incorrect; that the president may have attributed to the majority motives they were not willing to avow. the motives had been avowed by the gentleman who led the business from pennsylvania. mr. harper was called to order. he concluded by declaring that he would vote against the reference. mr. varnum observed, that a great constitutional question was to be decided; two branches of the government differed, and they had joined issue. the president had given the reasons of his opinion; it was right, also, that the people should know the sense of the house. shall the house take no further measures on the subject, and receive the answer of the president as obligatory with regard to the question? he believed every member of the house has, as well as the president, the right to avow his principles, and to judge of the import of the different parts of the constitution. the house he conceived under an obligation to consider the question: if they found, upon consideration, reason to recede from their opinions, he hoped they would. he wished the subject examined with temper and candor. mr. kittera chiefly dwelt on the length of time, which, if the motion was agreed to, would be consumed in the business. he also touched on the impropriety of entering into a disquisition on the merits of this question on the journals. mr. crabb.--mr. speaker, i hope the message received from the president, in answer to the resolution of this house, calling for certain papers relative to the british treaty, will be referred to a committee of the whole house. my reasons for this wish are, because the president has refused the papers on constitutional principles, and has thought proper to go into a detail of the reasons which led to a formation of his opinion; therefore i apprehend it proper to make the reference, in order, that if the reasons urged by the president are such as to convince this house that he is right as to the constitutional question, that they may have an opportunity to acknowledge it, that it may be so known and understood abroad, inasmuch as the contrary opinion has been promulgated; and again, i wish the reference, that this house may, with respect and calm deliberation, consider the president's message, and the reasons on which his refusal to send the papers is grounded, that if those reasons are not such as to convince or change the opinion of this house, they, in that case, may have an opportunity so to express themselves, and to introduce resolutions to that effect, that the opinion of this house, on this great constitutional question, after the receipt and consideration of the president's message, may be fully known, clearly understood, and stamped on your journals. i think this a necessary measure, inasmuch as sundry treaties lately negotiated are now before this house, and by a declaratory resolution, as before stated, this house may save the constitutional principle, and feel themselves at perfect liberty to pass the necessary laws to carry these treaties into complete effect, without conveying the implication, that they think they are bound so to do, and have not a constitutional right to reject and refuse, when even they shall judge the general prosperity of the union, and the interest of their constituents, may be promoted by that refusal. mr. giles said, he had not expected the subject would have been treated with ridicule, and that members in reply should advise others to go and write pamphlets. the motives of a branch of government must necessarily differ from the motives of individuals expressed in their speeches. a majority of the house, when their sentiments are collected, speak the sense of the house. he adverted to the practice of the house when the president returns a bill, which had been mentioned by the opposers of the motion, and observed, that in cases of that kind the message of the president was acted upon. he observed on the importance of the subject, and insisted on the propriety of the house expressing their reasons for their vote. they owe it to themselves, to the united states, to the whole world, to exhibit their reasons for what the president has declared to be an unconstitutional call. for this purpose, the message should be referred to a committee of the whole, where a proper motion would be brought forward, and could be freely discussed. if it had been proposed to refer the message to a select committee, to place the business into a few hands, there might have been an objection, but a reference to a committee of the whole he considered quite unexceptionable. mr. n. smith said the present was a most singular motion; and, after noticing the several reasons which had been given for the measure, thought none of them had any weight. he said the referring of the message could only have one effect; it would engage three weeks more of their time; and yet, gentlemen who had been very economical with respect to time, on the late great constitutional point, by calling for the question from day to day, now proposed to consume it in the way proposed. he should, however, now show that economy on account of time, which had been so much insisted upon on a former occasion. the yeas and nays were now taken on the question of a reference of the president's message to a committee of the whole; and the motion was agreed to--yeas , nays . debate on the president's answer. april .--the house accordingly resolved itself into a committee of the whole on said message. mr. blount brought forward the following resolutions: "_resolved_, that, it being declared by the second section of the second article of the constitution, 'that the president shall have power, by and with the advice of the senate, to make treaties, provided two-thirds of the senate present concur,' the house of representatives do not claim any agency in making treaties; but, that when a treaty stipulates regulations on any of the subjects submitted by the constitution to the power of congress, it must depend, for its execution, as to such stipulations, on a law or laws to be passed by congress. and it is the constitutional right and duty of the house of representatives, in all such cases, to deliberate on the expediency or inexpediency of carrying such treaty into effect, and to determine and act thereon, as, in their judgment, may be most conducive to the public good.[ ] "_resolved_, that it is not necessary to the propriety of any application from this house to the executive, for information desired by them, and which may relate to any constitutional functions of the house, that the purpose for which such information may be wanted, or to which the same may be applied, should be stated in the application." mr. harper, mr. dayton, and mr. kitchell, offered a few remarks with respect to the propriety of considering the resolutions now moved, or those laid upon the table, by mr. kitchell, a few days ago. after which-- mr. madison rose, and spoke as follows: when the message was first proposed to be committed, the proposition had been treated by some gentlemen not only with levity, but with ridicule. he persuaded himself that the subject would appear in a very different light to the committee; and he hoped that it would be discussed on both sides without either levity, intemperance, or illiberality. if there were any question which could make a serious appeal to the dispassionate judgment, it must be one which respected the meaning of the constitution; and if any constitutional question could make the appeal with peculiar solemnity, it must be in a case like the present, where two of the constituted authorities interpreted differently the extent of their respective powers. it was a consolation, however, of which every member would be sensible, to reflect on the happy difference of our situation, on such occurrences, from that of governments in which the constituent members possessed independent and hereditary prerogatives. in such governments, the parties having a personal interest in their public stations, and not being amenable to the national will, disputes concerning the limits of their respective authorities might be productive of the most fatal consequences. with us, on the contrary, although disputes of that kind are always to be regretted, there were three most precious resources against the evil tendency of them. in the first place, the responsibility which every department feels to the public will, under the forms of the constitution, may be expected to prevent the excesses incident to conflicts between rival and irresponsible authorities. in the next place, if the difference cannot be adjusted by friendly conference and mutual concession, the sense of the constituent body, brought into the government through the ordinary elective channels, may supply a remedy. and if this resource should fail, there remains, in the third and last place, that provident article in the constitution itself, by which an avenue is always open to the sovereignty of the people, for explanations or amendments, as they might be found indispensable. if, in the present instance, it was to be particularly regretted that the existing difference of opinion had arisen, every motive to the regret was a motive to calmness, to candor, and the most respectful delicacy towards the other constituted authority. on the other hand, the duty which the house of representatives must feel to themselves and to their constituents, required that they should examine the subject with accuracy, as well as with candor, and decide on it with firmness, as well as with moderation. in this temper, he should proceed to make some observations on the message before the committee, and on the reasons contained in it. the message related to two points. first. the application made for the papers. secondly. the constitutional rights of congress, and of the house of representatives, on the subject of treaties. on the first point, he observed, that the right of the house to apply for any information they might want, had been admitted by a number in the minority, who had opposed the exercise of the right in this particular case. he thought it clear that the house must have a right, in all cases, to ask for information which might assist their deliberations on the subjects submitted to them by the constitution; being responsible, nevertheless, for the propriety of the measure. he was as ready to admit that the executive had a right, under a due responsibility, also, to withhold information, when of a nature that did not permit a disclosure of it at the time. and if the refusal of the president had been founded simply on a representation that the state of the business within his department, and the contents of the papers asked for, required it, although he might have regretted the refusal, he should have been little disposed to criticise it. but the message had contested what appeared to him a clear and important right of the house; and stated reasons for refusing the papers, which, with all the respect he could feel for the executive, he could not regard as satisfactory or proper. one of the reasons was, that it did not occur to the executive that the papers could be relative to any purpose under the cognizance, and in the contemplation of the house. the other was, that the purpose for which they were wanted was not expressed in the resolution of the house. with respect to the first, it implied that the executive was not only to judge of the proper objects and functions of the executive department, but, also, of the objects and functions of the house. he was not only to decide how far the executive trust would permit a disclosure of information, but how far the legislative trust could derive advantage from it. it belonged, he said, to each department to judge for itself. if the executive conceived that, in relation to his own department, papers could not be safely communicated, he might, on that ground, refuse them, because he was the competent, though a responsible judge within his own department. if the papers could be communicated without injury to the objects of his department, he ought not to refuse them as irrelative to the objects of the house of representatives; because the house was, in such cases, the only proper judge of its own objects. the other reason of refusal was, that the use which the house meant to make of the papers was not expressed in the resolution. as far as he could recollect, no precedent could be found in the records of the house, or elsewhere, in which the particular object in calling for information was expressed in the call. it was not only contrary to right to require this, but it would often be improper in the house to express the object. in the particular case of an impeachment referred to in the message, it might be evidently improper to state that to be the object of information which might possibly lead to it, because it would involve the preposterous idea of first determining to impeach, and then inquiring whether an impeachment ought to take place. even the holding out an impeachment as a contemplated or contingent result of the information called for, might be extremely disagreeable in practice, as it might inflict a temporary pain on an individual, whom an investigation of facts might prove to be innocent, and perhaps meritorious. from this view of the subject he could not forbear wishing that, if the papers were to be refused, other reasons had been assigned for it. he thought the resolutions offered by the gentleman from north carolina, one of which related to this subject, ought to stand on the journal along with the message which had been entered there. both the resolutions were penned with moderation and propriety. they went no farther than to assert the rights of the house; they courted no reply; and it ought not to be supposed they could give any offence. the second object to which the measure related was the constitutional power of the house on the subject of treaties. here, again, he hoped it may be allowable to wish that it had not been deemed necessary to take up, in so solemn a manner, a great constitutional question, which was not contained in the resolution presented by the house, which had been incidental only to the discussion of that resolution, and which could only have been brought into view through the unauthentic medium of the newspapers. this, however, would well account for the misconception which had taken place in the doctrine maintained by the majority in the late question. it had been understood by the executive, that the house asserted its assent to be necessary to the validity of treaties. this was not the doctrine maintained by them. it was, he believed, fairly laid down in the resolution proposed, which limited the power of the house over treaties, to cases where treaties embraced legislative subjects, submitted by the constitution to the power of the house. mr. m. did not mean to go into the general merits of this question, as discussed when the former resolution was before the committee. the message did not request it, having drawn none of its reasoning from the text of the constitution. it had merely affirmed that the power of making treaties is exclusively vested by the constitution in the president, by and with the advice and consent of the senate. nothing more was necessary on this point than to observe that the constitution had as expressly and exclusively vested in congress the power of making laws, as it had vested in the president and senate the power of making treaties. he proceeded to review the several topics on which the message relied. first. the intention of the body which framed the constitution. secondly. the opinions of the state conventions who adopted it. thirdly. the peculiar rights and interests of the smaller states. fourthly. the manner in which the constitution had been understood by the executive and the foreign nations, with which treaties had been formed. fifthly. the acquiescence and acts of the house on former occasions. . when the members on the floor, who were members of the general convention, particularly a member from georgia and himself, were called on in a former debate for the sense of that body on the constitutional question, it was a matter of some surprise, which was much increased by the peculiar stress laid on the information expected. he acknowledged his surprise, also, at seeing the message of the executive appealing to the same proceedings in the general convention, as a clue to the meaning of the constitution. it had been his purpose, during the late debate, to make some observations on what had fallen from the gentlemen from connecticut and maryland, if the sudden termination of the debate had not cut him off from the opportunity. he should have reminded them that this was the ninth year since the convention executed their trust, and that he had not a single note in this place to assist his memory. he should have remarked, that neither himself nor the other members who had belonged to the federal convention, could be under any particular obligation to rise in answer to a few gentlemen, with information, not merely of their own ideas at that period, but of the intention of the whole body; many members of which, too, had probably never entered into the discussions of the subject. he might have further remarked, that there would not be much delicacy in the undertaking, as it appeared that a sense had been put on the constitution by some who were members of the convention, different from that which must have been entertained by others, who had concurred in ratifying the treaty. after taking notice of the doctrine of judge wilson, who was a member of the federal convention, as quoted by mr. gallatin from the pennsylvania debates, he proceeded to mention that three gentlemen, who had been members of the convention, were parties to the proceedings in charleston, south carolina, which, among other objections to the treaty, represented it as violating the constitution. that the very respectable citizen, who presided at the meeting in wilmington, whose resolutions made a similar complaint, had also been a distinguished member of the body that formed the constitution. it would have been proper for him, also, to have recollected what had, on a former occasion, happened to himself during a debate in the house of representatives. when the bill for establishing a national bank was under consideration, he had opposed it, as not warranted by the constitution, and incidentally remarked, that his impression might be stronger, as he remembered that, in the convention, a motion was made and negatived, for giving congress a power to grant charters of incorporation. this slight reference to the convention, he said, was animadverted on by several in the course of the debate, and particularly by a gentleman from massachusetts, who had himself been a member of the convention, and whose remarks were not unworthy the attention of the committee. here mr. m. read a paragraph from mr. gerry's speech, from the gazette of the united states, page , protesting, in strong terms, against arguments drawn from that source. mr. m. said, he did not believe a single instance could be cited in which the sense of the convention had been required or admitted as material in any constitutional question. in the case of the bank, the committee had seen how a glance at that authority had been treated in this house. when the question on the suability of the states was depending in the supreme court, he asked, whether it had ever been understood that the members of the bench, who had been members of the convention, were called on for the meaning of the convention on that very important point, although no constitutional question would be presumed more susceptible of elucidation from that source? he then adverted to that part of the message which contained an extract from the journal of the convention, showing that a proposition "that no treaty should be binding on the united states, which was not ratified by law," was explicitly rejected. he allowed this to be much more precise than any evidence drawn from the debates in the convention, or resting on the memory of individuals. but, admitting the case to be as stated, of which he had no doubt, although he had no recollection of it, and admitting the record of the convention to be the oracle that ought to decide the true meaning of the constitution, what did this abstract vote amount to? did it condemn the doctrine of the majority? so far from it, that, as he understood their doctrine, they must have voted as the convention did; for they do not contend that no treaty shall be operative without a law to sanction it; on the contrary, they admit that some treaties will operate without this sanction; and that it is no further applicable in any case than where legislative objects are embraced by treaties. the term "ratify" also deserved some attention; for, although of loose signification in general, it had a technical meaning different from the agency claimed by the house on the subject of treaties. but, after all, whatever veneration might be entertained for the body of men who formed our constitution, the sense of that body could never be regarded as the oracular guide in expounding the constitution. as the instrument came from them it was nothing more than the draft of a plan, nothing but a dead letter, until life and validity were breathed into it by the voice of the people, speaking through the several state conventions. if we were to look, therefore, for the meaning of the instrument beyond the face of the instrument, we must look for it, not in the general convention, which proposed, but in the state convention, which accepted and ratified the constitution. to these also the message had referred, and it would be proper to follow it. . the debates of the convention in three states (pennsylvania, virginia, and north carolina) had been before introduced into the discussion of this subject, and were believed the only publications of the sort which contained any lights with respect to it. he would not fatigue the committee with a repetition of the passages then read to them. he would only appeal to the committee to decide whether it did not appear, from a candid and collected view of the debates in those conventions, and particularly in that of virginia, that the treaty-making power was a limited power; and that the powers in our constitution, on this subject, bore an analogy to the powers on the same subject in the government of great britain. he wished, as little as any member could, to extend the analogies between the two governments; but it was clear that the constituent parts of two governments might be perfectly heterogeneous, and yet the powers be similar. at once to illustrate his meaning, and give a brief reply to some arguments on the other side, which had heretofore been urged with ingenuity and learning, he would mention, as an example, the power of pardoning offences. this power was vested in the president; it was a prerogative also of the british king. and, in order to ascertain the extent of the technical term "pardon," in our constitution, it would not be irregular to search into the meaning and exercise of the power in great britain. yet, where is the general analogy between an hereditary sovereign, not accountable for his conduct, and a magistrate like the president of the united states, elected for four years, with limited powers, and liable to impeachment for the abuse of them? in referring to the debates of the state conventions as published, he wished not to be understood as putting entire confidence in the accuracy of them. even those of virginia, which had been probably taken down by the most skilful hand, (whose merit he wished by no means to disparage,) contained internal evidence in abundance of chasms and misconceptions of what was said. the amendments proposed by the several conventions were better authority, and would be found, on a general view, to favor the sense of the constitution which had prevailed in this house. but even here it would not be reasonable to expect a perfect precision and system in all their votes and proceedings. the agitations of the public mind on that occasion, with the hurry and compromise which generally prevailed in settling the amendments to be proposed, would at once explain and apologize for the several apparent inconsistencies which might be discovered. he would not undertake to say that the particular amendment referred to in the message, by which two states require that "no commercial treaty should be ratified without the consent of two-thirds of the whole number of senators, and that no territorial right, &c. should be ceded without the consent of three-fourths of the members of both houses," was digested with an accurate attention to the whole subject. on the other hand, it was no proof that those particular conventions, in annexing these guards to the treaty power, understood it as different from that espoused by the majority of the house. they might consider congress as having the power contended for over treaties stipulating on legislative subjects, and still very consistently wish for the amendment they proposed. they might not consider the territorial rights and other objects for which they required the concurrence of three-fourths of the members of both houses, as coming within any of the enumerated powers of congress, and, therefore, as not protected by that control over treaties. and although they might be sensible that commercial treaties were under that control, yet, as they would always come before congress with great weight after they had passed through the regular forms and sanctions of the treaty department, it might be deemed of real importance that the authority should be better guarded which was to give that weight to them. he asked, whether it might not happen, even in the progress of a treaty through the treaty department, that each succeeding sanction might be given, more on account of preceding sanctions than of any positive approbation? and no one could doubt, therefore, that a treaty which had received all these sanctions would be controlled with great reluctance by the legislature, and, consequently, that it might be desirable to strengthen the barriers against making improper treaties, rather than trust too much to the legislative control over carrying them into effect. but, said mr. m., it will be proper to attend to other amendments proposed by the ratifying conventions, which may throw light on their opinions and intentions on the subject in question. he then read from the declaration of rights proposed by virginia to be prefixed to the constitution, the seventh article, which is as follows: "that all power of suspending laws, or the execution of laws, by any authority, without the consent of the representatives of the people in the legislature, is injurious to their rights, and ought not to be exercised." the convention of north carolina, as he showed, had laid down the same principle in the same words. and it was to be observed that, in both conventions, the article was under the head of a declaration of rights, "asserting and securing from encroachment the essential and inalienable rights of the people," according to the language of the virginia convention; and "asserting and securing from encroachment the great principles of civil and religious liberty, and the inalienable rights of the people," as expressed by the convention of north carolina. it must follow that these two conventions considered it as a fundamental, inviolable, and universal principle in a free government, that no power could supersede a law without the consent of the representatives of the people in the legislature. in the maryland convention also, it was among the amendments proposed, though he believed not decided on, "that no power of suspending laws, or the execution of laws, unless derived from the legislature, ought to be exercised or allowed." the convention of north carolina had further explained themselves on this point, by their twenty-third amendment proposed to the constitution in the following words: "that no treaties shall be directly opposed to the existing laws of the united states in congress assembled, shall be valid until such laws shall be repealed or made conformable to such treaty; nor shall any treaty be valid which is contradictory to the constitution of the united states." the latter part of the amendment was an evidence that the amendment was intended to ascertain rather than to alter the meaning of the constitution; as it could not be supposed to have been the real intention of the constitution that a treaty contrary to it should be valid. he proceeded to read the following amendments accompanying the ratification of state conventions: the new york convention had proposed "that no standing army or regular troops shall be raised or kept up in time of peace without the consent of two-thirds of the senators and representatives in each house." "that no money be borrowed on the credit of the united states, without the assent of two-thirds of the senators and representatives in each house." the new hampshire convention had proposed "that no standing army shall be kept up in time of peace, unless with the consent of three quarters of the members of each branch of congress." in the maryland convention a proposition was made in the same words. the virginia convention had proposed "that no navigation law, or law regulating commerce, shall be passed without the consent of two-thirds of the members present in both houses." "that no standing army or regular troops shall be raised or kept up in time of peace, without the consent of two-thirds of the members present in both houses." "that no soldier shall be enlisted for any longer term than four years, except in time of war, and then for no longer term than the continuance of the war." the convention of north carolina had proposed the same three amendments in the same words. on a review of these proceedings, may not, said he, the question be fairly asked, whether it ought to be supposed that the several conventions who showed so much jealousy with respect to the powers of commerce, of the sword, and of the purse, as to require, for the exercise of them, in some cases two-thirds, in others three-fourths of both branches of the legislature, could have understood that, by the treaty clauses in constitution, they had given to the president and senate, without any control whatever from the house of representatives, an absolute and unlimited power over all those great objects? . it was with great reluctance, he said, that he should touch on the third topic--the alleged interest of the smaller states in the present question. he was the more unwilling to enter into this delicate part of the discussion, as he happened to be from a state which was in one of the extremes in point of size. he should limit himself, therefore, to two observations. the first was, that if the spirit of amity and mutual concession from which the constitution resulted was to be consulted on expounding it, that construction ought to be favored which would preserve the mutual control between the senate and house of representatives, rather than that which gave power to the senate not controllable by, and paramount over those of the house of representatives, whilst the house of representatives could in no instance exercise their powers without the participation and control of the senate. the second observation was, that, whatever jealousy might unhappily have prevailed between the smaller and larger states, as they had most weight in one or the other branch of government, it was a fact, for which he appealed to the journals of the old congress from its birth to its dissolution, and to those of the congress under the present government, that in no instance would it appear, from the yeas and nays, that a question had been decided by a division of the votes according to the size of the states. he considered this truth as affording the most pleasing and consoling reflection, and as one that ought to have the most conciliating and happy influence on the temper of all the states. . a fourth argument in the message was drawn from the manner by which the treaty power had been understood by both parties in the negotiations with foreign powers. "in all the treaties made _we_ have declared and _they_ have believed," &c. by _we_, he remarked, was to be understood the executive alone, who had made the declaration, and in no respect the house of representatives. it was certainly to be regretted, as had often been expressed, that different branches of the government should disagree in the construction of their powers; but when this could not be avoided, each branch must judge for itself; and the judgment of the executive could in this case be no more an authority overruling the judgment of the house than the judgment of the house could be an authority overruling that of the executive. it was also to be regretted that any foreign nation should at any time proceed under a misconception of the meaning of our constitution. but no principle was better established in the laws of nations, as well as in common reason, than that one nation is not to be the interpreter of the constitution of another. each nation must adjust the forms and operations of its own government, and all others are bound to understand them accordingly. it had before been remarked, and it would be proper to repeat it here, that of all the nations great britain would be the least likely to object to this principle, because the construction given to our government was particularly exemplified in her own. . in the fifth and last place, he had to take notice of the suggestion, that every house of representatives had concurred in the construction of the treaty power, now maintained by the executive; from which it followed that the house could not now consistently act under a different construction. on this point, it might be sufficient to remark, that this was the first instance in which a foreign treaty had been made since the establishment of the constitution; and that this was the first time the treaty-making power had come under formal and accurate discussion. precedents, therefore, would readily be perceived to lose much of their weight. but whether the precedents found in the proceedings preparatory to the algerine treaty, or in the provisions relative to the indian treaties, were inconsistent with the right which had been contended for in behalf of the house, he should leave to be decided by the committee. a view of these precedents had been pretty fully presented to them by a gentleman from new york, (mr. livingston,) with all the observations which the subject seemed to require. on the whole it appeared that the rights of the house on the two great constitutional points had been denied by a high authority in the message before the committee. this message was entered on the journals of the house. if nothing was entered in opposition thereto, it would be inferred that the reasons in the message had changed the opinion of the house, and that their claims on those great points were relinquished. it was proper, therefore, that the questions, brought fairly before the committee in the propositions of the gentleman (mr. blount) from north carolina, should be examined and formally decided. if the reasoning of the message should be deemed satisfactory, it would be the duty of this branch of the government to reject the propositions and thus accede to the doctrines asserted by the executive. if, on the other hand, this reasoning should not be satisfactory, it would be equally the duty of the house, in some such firm, but very decent, terms as are proposed, to enter their opinions on record. in either way the meaning of the constitution would be established, as far as depends on the vote of the house of representatives. april .--the order of the day being called for on the consideration of the president's message, the house resolved itself into a committee of the whole on that subject, and the resolutions of mr. blount having been read-- mr. swift and mr. w. smith rose together, but mr. smith giving way, mr. swift proceeded to remark, that he did not rise for the purpose of going into the subject, but to move that the question might be then taken. the same principles which were involved in the present question, had already undergone a discussion of three weeks, and no doubt could remain on the mind of any gentleman in that house on the subject; nor did he think that if three weeks more were to be consumed in the discussion, one opinion would be changed. therefore, as business of the utmost consequence called for their attention, as it was of the last importance that the treaties lately formed with foreign nations should be carried into effect, he hoped they would enter upon the question of the state of the union. if gentlemen wished to carry the treaties into effect, he entreated them to come forward and do so; or, if they meant to defeat them, he wished them at once to say so. if they went into the present discussion at length, there would not be time sufficient to determine upon the treaties. he was willing to let the matter rest upon the representation of the gentleman from virginia. he himself had taken no share in the debate, though if it were to be again gone into, he should desire to be heard as well as others. but he was fully satisfied that gentlemen who had spoken on a former occasion would unite with him in wishing the question to be then taken. the resolutions were then severally put and carried-- members rising for each. the house then took them up. the previous question was called, viz: shall the question now be put?--on which the yeas and nays were taken, and stood--yeas , nays . the yeas and nays were taken on the first resolution, and stood--yeas , nays , as follows: yeas.--theodorus bailey, abraham baldwin, david bard, lemuel benton, thomas blount, nathan bryan, dempsey burges, samuel j. cabell, gabriel christie, john clopton, isaac coles, jeremiah crabb, henry dearborn, george dent, samuel earle, william findlay, jesse franklin, albert gallatin, william b. giles, nicholas gilman, andrew gregg, william b. grove, wade hampton, george hancock, carter b. harrison, john hathorn, jonathan n. havens, john heath, daniel heister, george jackson, edward livingston, matthew locke, william lyman, samuel maclay, nathaniel macon, james madison, john milledge, andrew moore, frederick a. muhlenberg, john nicholas, alexander d. orr, john page, josiah parker, john patton, francis preston, john richards, robert rutherford, john s. sherburne, israel smith, samuel smith, thomas sprigg, john swanwick, absalom tatom, philip van cortlandt, joseph b. varnum, abraham venable, and richard winn. _nays._--fisher ames, benjamin bourne, theophilus bradbury, daniel buck, joshua coit, william cooper, abiel foster, dwight foster, ezekiel gilbert, henry glenn, benjamin goodhue, chauncey goodrich, roger griswold, robert goodloe harper, thomas hartley, thomas henderson, james hillhouse, william hindman, john wilkes kittera, samuel lyman, francis malbone, william vans murray, john reed, theodore sedgwick, jeremiah smith, nathaniel smith, william smith, zephaniah swift, george thatcher, richard thomas, mark thompson, uriah tracy, john e. van allen, peleg wadsworth, and john williams. the second resolution was then taken up, and the yeas and nays stood as on the first. the following members were absent when the yeas and nays were called on the main questions: messrs. brent, claiborne, gillespie, greenup, holland, new, and sitgreaves. the following members were away upon leave of absence: messrs. freeman, kitchell, leonard and isaac smith. it was understood that the following members would have voted for the resolutions had they been present: messrs. brent, claiborne, gillespie, greenup, holland, and new. recapitulation. yeas in the house, yeas absent, -- nays in the house, mr. sitgreaves absent (probably against the resolution) -- -- majority for the resolutions, [ ] absent on leave, mr. duvall, resigned, the speaker, ---- whole number of members, friday, april . _the treaty with great britain._ the house then resolved itself into a committee of the whole on the state of the union, when, having read the resolution for carrying the british treaty into effect-- mr. buck rose, and wished the question to be taken upon mr. maclay's resolution.[ ] this was opposed by mr. madison and mr. hillhouse, and then mr. madison addressed the chair as follows: mr. m. said, on a subject of such extent and importance, he should not attempt to go through all the observations that might be applicable to it. a general view of the subject was all that he meant at present. his omissions would be more than supplied by others who might enter into the discussion. the proposition immediately before the committee was, that the treaty with great britain ought to be carried into effect by such provisions as depended on the house of representatives. this was the point immediately in question. but it would be proper in examining it to keep in view also the proposition of the gentleman from pennsylvania (mr. maclay) which had been referred to the committee, and which would be taken up, of course, if the immediate question should be decided in the negative. if the proposition for carrying the treaty into effect be agreed to, it must be from one of three considerations: either that the legislature is bound by a constitutional necessity to pass the requisite laws without examining the merits of the treaty, or that, on such examination, the treaty is deemed in itself a good one, or that there are good extraneous reasons for putting it into force, although it be in itself a good one, or that there are good extraneous reasons for putting it into force, although it be in itself a bad treaty. the first consideration being excluded by the decision of the house, that they have a right to judge of the expediency or inexpediency of passing laws relative to treaties; the question first to be examined must relate to the merits of the treaty. he then proceeded to consider the treaty under three aspects: first, as it related to the execution of the treaty of peace in ; secondly, as it determines the several points in the law of nations; thirdly, as it respects the commerce between the two nations. first. he would not inquire on which side the blame lay, of having first violated the treaty of , or of having most contributed to delay its execution, although he did not shrink from the task under any apprehension that the result could be disadvantageous to this country. the treaty itself had waived this inquiry, and professed to adjust all controversies on this subject, without regard to the mutual complaints or pretensions of the parties. it was, therefore, justly and naturally to be expected, that the arrangements for carrying that treaty into effect would have been founded in the most exact and scrupulous reciprocity. was this the case? he was sorry, that on the contrary, the arrangements were founded on the grossest violation of that principle. there were two articles which had not been executed by great britain; that which related to the negroes and other property carried away, and that which required a surrender of the posts. the article unexecuted by the united states was, that which required payment of all _bona fide_ debts, according to the treaty now in question: this article is now to be carried into the most complete effect by the united states, and damages to the last fraction are to be paid for the delay. is there a reciprocal stipulation by great britain with respect to the articles unexecuted by her? nothing like it. she is wholly absolved from the obligation to fulfil one of the articles, viz: that relating to the negroes, &c., and she is to make no compensation whatever for delaying to fulfil the other, viz: the surrender of the posts. it has been urged in apology for those very unequal stipulations, that the injury resulting from a forbearance to surrender the posts, was not susceptible of any precise liquidation into pecuniary damages. however plausible this might appear, it was by no means satisfactory. commissioners, such as were appointed, with full discretion for other purposes, might have been charged with this subject, and if they could not have done exact justice, might have mitigated the injustice of doing nothing. apologies have been attempted also for the very extraordinary abandonment of the compensation due for the negroes, &c. it was said to be at least doubtful whether this claim was authorized by the seventh article of the treaty of peace, and that great britain had uniformly denied the meaning put by the united states on that article. in reply he made two remarks. first, that it was not true that great britain had uniformly denied the american construction of that article; on the contrary, he believed, it could be proved, that till of late, great britain had uniformly admitted this construction, and had rejected the claim on no other ground than the alleged violation of the fourth article on the part of the united states. but had it been true that great britain had uniformly asserted a different construction of the article, and refused to accede to ours, what ought to have been done? ought we to have at once acceded to hers? by no means. each party had an equal right to interpret the compact; and if they could not agree, they ought to have done in this what they did in other cases where they could not agree; that is, have referred the settlement of the meaning of the compact to an arbitration. to give up the claim altogether, was to admit, either that great britain had a better right than the united states to explain the controverted point, or that the united states had done something which in justice called for a sacrifice of their equal right. it was evident, he thought, from this view of the subject, that the arrangements with respect to the treaty of peace were frequently wanting both in justice and reciprocity. besides the omissions in favor of great britain, already pointed out with respect to the execution of the treaty of peace, he observed, that conditions were annexed to the partial execution of it in the surrender of the western posts, which increased the general inequality of this part of the treaty, and essentially affected the value of those objects. the value of the posts to the united states was to be estimated by their influence, st. on the indian trade; d. on the conduct and temper of the indians towards the united states. their influence on the indian trade depended principally on the exclusive command they gave to the several carrying places connected with the posts. these places were understood to be of such importance in this respect, that those who possessed them exclusively would have a monopoly, or nearly a monopoly, of the lucrative intercourse with a great part of the savage nations. great britain having hitherto possessed these places exclusively, has possessed this advantage. it was expected that the exclusive transfer of them would transfer the advantage to the united states. by the treaty now concluded, the carrying places are to be enjoyed in common, and it will be determined by the respective advantages under which british and american traders will engage in the trade, which of them is to share most in it. in this point of view he thought the regulation highly impolitic and injurious. he would say little of the advantage which the british would have in their superior capital: that must be encountered in all our commercial rivalships. but there was another consideration which ought to have great weight on this subject. the goods imported for the indian trade through canada pay no duties. those imported through the united states for that trade, will have paid duties from seven to ten per cent., and every one must see that a drawback is impracticable, or would be attended with an expense which the business would not bear. so far, then, as the importance of the posts is to be considered in a commercial view, they are, in a very great measure, stripped of it by the condition annexed to the surrender of them. instead of a monopoly in our favor, the carrying places are made common under circumstances which may leave a monopoly in the hands of great britain. and this is done, too, by an article which is to last for ever. second. the influence of the posts on the general conduct of the indians, is well known to depend chiefly on their influence on the indian trade. in proportion, therefore, as the condition annexed to the surrender of posts affects the one, it must affect the other. if the british should continue to enjoy the indian trade, they would continue to influence the indian conduct; if not in the same degree as heretofore, at least in so great a degree as to condemn the article in question. he took notice also of the inequality of the stipulation which opened all the ports of the united states, as the condition of having those of an unimportant province of great britain opened in return. with respect to the mississippi he could not but consider the clause relating to it as being singularly reprehensible. happily the adjustment of our claims with spain had been brought about before any evil operation of the clause had been experienced. but the tendency of it, he thought, could not be doubted. it was the more remarkable, that this extension of the privileges of great britain on the mississippi beyond those in the treaty of peace, should have been admitted into the new treaty, because it is supposed by the treaty itself, that great britain may be deprived, by her real boundary, of all pretensions to a share in the banks and waters of the mississippi. secondly. with respect to the great points in the law of nations, comprehended in the stipulations of the treaty, the same want of real reciprocity, and the same sacrifice of the interests of the united states, were conspicuous. it was well known to have been a great and favorite object with the united states, "that free ships make free goods." they have established this principle in all their other treaties. they have witnessed with anxiety the general effort, and the successful advances towards incorporating this principle into the law of nations; a principle friendly to all neutral nations, and particularly interesting to the united states. he knew that at a former period it had been conceded on the part of the united states that the law of nations stood as the present treaty regulates it. but it did not follow that more than acquiescence in that doctrine was proper. there was an evident distinction between silently acquiescing in it, and giving it the support of a formal and positive stipulation. the former was all that could have been required, and the latter was more than ought to have been unnecessarily yielded. the article prohibiting sequestration was next considered by mr. m. he said he should probably be among the last who would be disposed to resort to such an expedient for redress. but he could not approve of a perpetual and irrecoverable abandonment of a defensive weapon, the existence of which might render the use of it unnecessary. the situation of this country in relation to great britain was a peculiar one. as we had not fleets and armies to command a respect for our rights, we ought to keep in our hands all such means as our situation gave us. this article was another instance in which no regard was paid to reciprocity. british subjects, it was well known, had and were likely to have in this country a great deal of the property of the king made sacred. american citizens, it was as well known, had little, and were likely to have little of the kind in great britain. if a real reciprocity had been intended, why were not other kinds of private property, as vessels and their cargoes, equally protected against violation? these, even within the jurisdiction of great britain, are left open to seizure and sequestration, if great britain finds it expedient. and why was not property on the high seas under the protection of the law of nations, which is said to be a part of the law of the land, made secure by a like stipulation? this would have given a face of equality and reciprocity to the bargain. but nothing of the sort makes a part of it; where great britain had a particular interest at stake, the treaty watchfully provides for it; when the united states have an equal interest at stake and equally entitled to protection, it is abandoned to all the dangers which it has experienced. after taking this brief notice of the positive evils in this part of the treaty, he might, he said, add the various omissions which were chargeable on it. but as he should not pretend to exhaust the subject, he would mention one only: the not providing for the respect due to the exhibition of sea papers. he could not but regard this omission as truly extraordinary, when he observed that in almost every modern treaty, and particularly all our other treaties, an article on this subject was regularly inserted. indeed, it had become almost an article of course in the treaties of the present century. thirdly. the commercial articles of the treaty presented the third aspect under which he was to consider it. in the free intercourse stipulated between the united states and great britain, it could not be pretended that any advantage was gained by the former. a treaty was surely not necessary to induce great britain to receive our raw materials and to sell us her manufactures. on the other hand, consider what was given up by the united states. when the government came into operation, it is well known that the american tonnage employed in the british trade bore the most inconsiderable proportion to the british tonnage. there being nothing on our side to contract the influence of capital and other circumstances on the british side, that disproportion was the natural state of things. as some balance to the british advantages, and particularly that of her capital, our laws had made several regulations in favor of our shipping, among which was the important encouragement resulting from the difference of ten per cent. in the duties paid by american and foreign vessels. under this encouragement the american tonnage has increased in a very respectable proportion to the british tonnage. nor has great britain ever deemed it prudent to attempt any countervailing measures for her shipping, well knowing that we could easily keep up the differences by further measures on our side. but by the treaty, she has reserved to herself the right to take such countervailing measures against our existing regulations; and we have surrendered our rights to pursue further defensive measures against the influence of her capital. it is justly to be apprehended, therefore, that under such a restoration of the former state of things, the american tonnage will relapse to its former disproportion to the british tonnage. when he turned his attention to the west india branch of the subject, there was still greater cause for wonder and dissatisfaction. as the treaty now stood, great britain was left as free as she ever had been to continue the entire monopoly of the intercourse to british vessels. recollecting, as he did, and as every member of the committee must do, the whole history of this subject from the peace of , through every subsequent stage of our independence down to the mission of the late envoy, it was impossible for him to express his astonishment that any treaty of commerce should have ever been acceded to which abandoned the very object for which such a treaty was ever contemplated. he never could have believed that the time was so near when all the principles, claims, and calculations, which have heretofore prevailed among all classes of people, in every part of the union, on this interesting point, were to be so completely renounced. a treaty of commerce with great britain, excluding a reciprocity for our vessels in the west india trade, is a phenomenon which had filled him with more surprise than he knew how to express. he then pointed to the clause which restrains the united states from imposing prohibitions or duties in any case on britain which did not extend to all other nations; observing that the clause made it impossible to operate on the unreasonable policy of that nation, without suspending our commerce at the same time with all other nations whose regulations with respect to us might be ever so favorable and satisfactory. the fifteenth article had another extraordinary feature, which must strike every observer. in other treaties, putting the parties on the footing of the most favored nation, it was stipulated that where new favors were granted to a particular nation in return for favors received, the party claiming the new favor should pay the price of it. this was just and proper where the footing of the most favored nation is established at all. but this article gives to great britain the full benefit of all privileges that may be granted to any other nation, without requiring from her the same or equivalent privileges with those granted by such nation. hence it would happen that if spain, portugal, or france, should open their colonial ports to the united states in consideration of certain privileges in our trade, the same privileges would result gratis, and _ipso facto_, to great britain. he considered this stipulation as peculiarly impolitic, and that it could not fail, in the view of the committee, to form a very solid and weighty objection to the treaty. he was not unaware of the stress that would be laid on the article relating to the east indies. he should leave to others better acquainted than himself with this branch of the subject to explain it. he made two observations, however: one was, that judicious and well informed gentlemen, equally judicious and well informed with any who could be consulted, considered the article as offering not a shadow of advantage to the united states. the other was, that no privilege was stipulated which had not been uniformly heretofore granted without stipulation; and as the grant could have proceeded from no motive but a pure regard to the british interest in that country, there was every reasonable security that the trade would continue open as it had been, under the influence of the same consideration. such being the character of the treaty, with respect to the execution of the treaty of peace, the great principles of the law of nations, and the regulations of commerce, it never could be viewed as having any claim to be carried into effect on its own account. he should conclude, he said, with taking notice of two considerations which had been much used as inducements to carrying the treaty into effect. . it was said that the greater part of the treaty was to continue two years only after the present war in europe; and that no very great evils could grow out of it within that period. to this he replied, in the first place, that ten of the articles containing many very objectionable stipulations were perpetual. in the next place, that it would be in the power of great britain, at the expiration of the other articles, to produce the same causes for a renewal of them, as are now urged in their favor. if we are now to enforce the treaty, lest great britain should stir up the indians, and refuse to pay the merchants for the property of which she has plundered them, can she not at the end of two or three years plunder them again to the same or a greater amount? cannot the same apprehensions also be then revived with respect to the indians, and will not the arguments then be as strong as they are now, for renewing the same treaty, or making any other equal sacrifice that her purposes may dictate? . it was asked, what would be the consequence of refusing to carry the treaty into effect? he answered, that the only supposable consequence was, that the executive, if governed by the prudence and patriotism which he did not doubt would govern that department, would, of course, pursue the measures most likely to obtain a reconsideration and remodification of the offensive parts of the treaty. the idea of war, as a consequence of refusing to give effect to the treaty, was too visionary and incredible to be admitted into the question. no man would say that the united states, if an independent people, had not a right to judge of their own interests, and to decline any treaty that did not duly provide for them. a refusal, therefore, in such cases, could give no cause, nor pretext, nor provocation, for war or for any just resentment. but apart from this, was it conceivable that great britain, with all the dangers and embarrassments which are thickening upon her, would wantonly make war on a country which was the best market she had in the world for her manufactures, which paid her an annual balance in specie of ten or twelve millions of dollars, and whose supplies were moreover essential to an important part of her dominions? such a degree of infatuation ought not to be ascribed to any nation. and at the present crisis, for reasons well known, an unprovoked war with great britain, on this country, would argue a degree of madness greater than under any other circumstances that could well be imagined. with all the objections therefore to the treaty which he had stated, he hoped that it would not now be carried into effect; and that an opportunity would take place for reconsidering the subject on principles more just and more favorable to the united states. when mr. madison had concluded, mr. s. lyman rose.--i do not rise, said mr. l., with an intention to go into a detail upon this subject, or to exhibit a comparative view of the advantages and disadvantages which may attend the operation of this treaty, but only to make a few remarks, which may be considered as preparatory to a more minute discussion. although i believe a discussion of this treaty is not strictly in order, because it does not come before us immediately as a subject of debate and legislation, but as a piece of information from the executive, yet i have no doubt but that a thorough discussion of its principles may produce a happy effect; for i believe the more it is understood, the less various will be our sentiments, the greater the degree of unanimity among ourselves, so much the greater will be the unanimity among our constituents. this unanimity is an object of the greatest magnitude, not only as the source of national respectability and honor, but as the only true source of national happiness and prosperity; it is therefore the indispensable duty of government to maintain internal peace and tranquillity, and upon this ground alone it is i am willing the treaty should be thoroughly discussed. i am sensible this treaty presents itself with an unfavorable aspect, and what is the reason? is it not because we have entertained too exalted ideas of our own national importance? a generous and noble pride we ought to entertain as a nation, and without this pride we should be guilty of ingratitude to heaven, for providence has placed within our reach all the resources of national strength and greatness, but we are yet among the nations in a state of minority--a minor must solicit favors, he cannot challenge them. did we go to the emperor of morocco, or to the dey of algiers, and challenge a passage for our ships up the mediterranean? no; but we solicited, and pay dear for that passage; or did we go to the king of spain, and demand a free navigation of the mississippi? no; but we negotiated, and success has attended that negotiation; or could we have gone to the king of england, and challenged a participation with his subjects in the commerce of the east and west indies? certainly we could not. what then should we have done? would it have been best to have traded with them upon sufferance, and so to have maintained a precarious kind of commerce? certainly this would not have done, for in that case we should have been constantly dependent upon the caprice of a capricious court; this would be extremely mortifying indeed. commerce, like all other kind of business, ought to be carried on upon generous and open principles, otherwise we establish a system of deceit that would be favorable to pirates and freebooters. under those circumstances what could we have done? we could not have carved for ourselves, for our strength and greatness were not sufficient; we therefore had to go with the modesty of a minor, and to solicit; and what was the natural consequence of this solicitation? why, at the first interview with the british minister, he determined to exact of us at least a complete fulfilment of all that a former treaty required; and what was that? it was a payment of our _bona fide_ debts; what could we do? he produced our contract, and we said nothing; moral rectitude required a fulfilment of this: it was in vain to say, you have interrupted our commerce, you have carried off our negroes, you have retained the western posts, and thereby occasioned an expensive and bloody war with the indians. some of this language, perhaps, would have had weight with the british minister, if he had been acting in his private capacity, but he felt and acted like the minister of a great and powerful nation; interest and glory are their objects, and moral considerations are too apt to vanish before these. it is true, by the law of nature, commerce ought to be free and uninterrupted, but by the law of nations it is otherwise; and what nation shall gainsay this law? we certainly cannot, our strength and greatness are not yet fully ripe; and if they were, we should, in practice, deny this law of nature, and should ratify and confirm this law of nations. thus, mr. chairman, we see that interest and force govern among the nations. i have made these preliminary observations in order that we might contemplate the treaty upon its true ground, for a want of reciprocity has been a heavy charge brought against it. i have read this treaty with care and attention, and i am free to own that upon the first perusal of it i had a prejudice against it; it appeared to me that some of its stipulations were too favorable for britain, and too disadvantageous to ourselves; but we certainly had an able negotiator, and i verily believe he did his utmost to serve his country; the more i have attended to the subject, the more i am reconciled to it. i find the gentlemen who are interested in commerce are almost universally satisfied with the commercial regulations; but there is a more weighty charge brought against it than of a want of reciprocity; it is even said by some to be unconstitutional. this is a heavy charge indeed, and if it is well founded we ought to prevent its operation, for we are sent here as the guardians of the rights of our fellow-citizens, and for that purpose are sworn to support their constitution; if it is unconstitutional, it is a nullity; it is not binding upon the nation; we ought to reject it; but if it is constitutional, and not extremely pernicious, it becomes the supreme law of the land, and we are in that case bound to obey it. when mr. lyman had taken his seat, mr. swanwick addressed the chair:--one of the most characteristic and strong points of difference that exists between republican and despotic forms of government, said mr. s., consists in their greater or lesser degree of haste in making or adopting laws. where the will of a despot is the only law, his simple volition is sufficient to call for the prompt obedience of the subject; but in our happy government, the numerous checks and balances it prescribes every where oppose themselves to haste, to error, or inadvertency, in the formation of laws. in acts of the smallest importance, we see daily that after they have undergone every possible chance of fair and impartial discussion in the house, they are transmitted to another, who equally proceed to revise, correct, and amend them; and even this not being deemed sufficient to secure, as it were, against all possibility of danger, they are sent to the president, who has ten days to consider, and who may return them with his objections. these we are bound respectfully to inscribe on our journals; and if we disagree in opinion with the president, the majority of two-thirds of both branches is requisite to give validity to the law. do not we discover in all this infinite caution, and a wish rather not to act at all, by the difference of the branches among each other, than to act imprudently or precipitantly; and can we imagine that a constitution thus guarded with respect to laws of little consequence, hath left without a check the immense power of making treaties, embracing, as in the instrument before us, all our greatest interests, whether they may be of territory, of agriculture, commerce, navigation, or manufacture, and this for an indefinite length of time? no. by one of the guards of that constitution relative to appropriations of money, this treaty hath, in the last stage of its progress, come before us; we have resolved according to our best judgment of the constitution, and, as we have seen above, according to the meaning and spirit of it, that we have a right to judge of the expediency or inexpediency of carrying it into effect. this will depend on its merits; and this is the discussion now before us. if, in the event, we shall be found to differ in opinion with the other branches as to this subject, it will involve no more animosity or crimination against them than if we differed as to an ordinary law. to what purpose then to sound the alarm, and to ring the tocsin from georgia to new hampshire? do we impeach the executive? do we charge bribery or corruption? no, sir. these preliminary remarks i have thought essential, previously to going into a consideration of the merits of the treaty itself, which hath already been so ably considered by the gentleman last up from virginia, (mr. madison,) whose mildness of manner and suavity of address were certainly calculated to inspire any thing else than the angry passions so greatly deprecated by the gentleman from massachusetts, (mr. s. lyman.) these, i hope, will be carefully avoided on all sides, and the debate be concluded with the same good temper and moderation in which it is begun. i must confess, mr. chairman, that the first point of view in which this treaty struck me with surprise was, the attitude great britain assumes in it of dictating laws and usages of reception and conduct different towards us, in every different parcel of her empire, while the surface of our country is entirely laid open to her in one general and advantageous point of admission. in europe, we are told we may freely enter her ports. in the west indies, we were to sail in canoes of seventy tons burden. in the east indies we are not to settle or reside without leave of the local government. in the seaports of canada and nova scotia, we are not to be admitted at all; while all our rivers and countries are opened without the least reserve; yet surely our all was as dear to us as the all of any other nation, and not to have been parted with but on equivalent terms. but let us consider the articles distinctly:--first, as to the mississippi; great britain is admitted as freely to navigate on this river, and to frequent the ports on its banks, as we are to go to those on the thames; yet, it is strange to remark, that, at the time we made the stipulation, we had not ourselves obtained the right we gave. we have since obtained it by treaty with spain, and on terms absolutely contradictory to those contained in the british treaty. the next of the permanent articles i shall notice, is that which respects british debts. it is somewhat remarkable, that the commissioners, who are to judge of these, are permitted the power of adjournment from place to place--a very favorable stipulation for the creditors, whilst the commissioners on spoliations, by article , are to act only in london, whereby the american claimant must pass with his papers, or send them across the atlantic, and engage lawyers in a country where law is unusually dear; a circumstance which will deter many from applying at all, and occasion great loss to the united states. i observe, too, that the awards of the commissioners of british debts are to be paid out of the treasury as awarded by the commissioners. i am surprised not to find in the report of the secretary of state, on appropriations to carry this treaty into effect, some calculation as to the probable amount of these debts, or some provision for lodging, for this purpose, money in the treasury. gentlemen would then have known the extent to which they were going; but, at present, they can form no judgment on the subject of the money wanted, or of the funds from whence that money is to come. much hath been said about the tenth article, relative to the sequestration of debts. to be against the adoption of this article, hath been supposed to imply an unwillingness to pay debts lawfully contracted, and very copious abuse hath been thrown on the largest and most populous state in this union, as having for motive of its opposition, this principle. to say nothing of the degrading nature of such an admission, with respect to the honor of our own country, which ought always to induce us to think the most favorably of it, is it true? is it true, that an unwillingness to pay debts hath been the principal cause of opposition to this treaty? among the names opposed to it, are to be found some as respectable for independence and fortune as any on the continent. to instance only one of a number, i may cite the celebrated pennsylvania farmer, john dickenson, esq., one of the richest men in these parts of the country, attached to no party, living in great retirement, with a name honorable for the most virtuous efforts in the american revolution. can it be supposed that such a character as this is influenced by such a motive? surely not. whence arises, then, the opposition? it arises from a conviction that the admission of this article is degrading to the national character. during a late session of congress an honorable member from new jersey, (mr. dayton, the present speaker) fired by a laudable indignation at the robberies committed on our commerce by the british, moved for a provisional sequestration of their property. no sooner was this done, than we saw a report from the secretary of the treasury, dated the th of january, , recommending the united states to pass a permanent law against sequestration of property in the funds. congress not having acted on this part of the report, though they adopted other parts, we now see the clause attempted to be brought into a law by way of a treaty. and it is more singular, as, at the very time the article was agreed to in england, all the european nations were actually sequestering the property of each other. after having thus reviewed the first ten or permanent articles, i think it must appear obvious that the result is, that we have ceded the right to navigate the mississippi on terms different to those on which we received it from spain; that we have consented to receive the western posts on terms that afford too much danger of disturbances by a mixed intercourse of our people, british subjects and indians; that we have provided, certainly, for an indefinite amount of british debts: whilst our claim for spoliations is left to be decided by commissioners at london, who meet without power of adjournment, and under very extensive latitude of judging according to what may appear to them to be the law of nations, in a country where that law his been twisted so as always to serve as a pretext for spoliations against us; and we have agreed never, in future, to consent to sequestrations, or confiscations, in case, by war or national difference, our property afloat should be confiscated or sequestered by great britain to any amount. let any impartial mind, then, judge of the expediency, on our part, of voting efficacy to so ruinous a contract. i come now to consider the remaining articles of a more temporary nature. the th article merits consideration, because, though not included in the general arrangement as ratified, being only suspended, its principles are not wholly abandoned, but left, like a cloud, still to hang over us. this th article was intended to regulate our intercourse with the british west indies, and contemplated the singular provision that we should only navigate thither in vessels of seventy tons burden, whilst the british themselves might put in the employ vessels of any size. how degrading such a stipulation, it is not difficult to conceive! we supply these islands with what the inhabitants have always acknowledged they could get so well nowhere else, and yet our tonnage is to be thus restricted, while theirs is left open to employ vessels of any description. but this is not all: for the sake of getting admission into a few inconsiderable british ports in the west indies, we are to give up the carriage in our own shipping of cotton, one of our own staple articles, and of sugar, coffee, and indigo, the produce of the french, spanish, danish, swedish, or dutch islands. how strange a mistake as to the geography of this western archipelago, in which the carriage of the produce of st. domingo alone is worth more nearly than the entire admission to all the other islands put together! the principle contained in this th article, thus suspended, ought to have been utterly contradicted or annulled. while existing even in its suspended form, it will prevent my voting for this treaty, of whose chains it is only an absent link. but we are told whatever may be our fate in the west, all our losses are to be balanced in the east indies; and we are carried from our own neighborhood, to be sure, to a great distance, in order to have repaid all our sacrifices. let us examine this th article respecting the east india trade, and see if it does not bear a very strict analogy to the west india article that has been exploded. we are to be admitted, it is true, in vessels of any size, but not suffered to settle or reside without leave of the local government--that is, of the british east india company. of all the despotisms in the world that of a mercantile monopolizing company is the worst; yet into such hands we are to fall, and from them to solicit leave to reside or travel in the country. what security can there be for a commerce thus precariously conducted, in which your rivals are your judge? the consumption of india goods being in a great degree out of the question in england, the company, who have an annual revenue of a million and a half sterling to receive from their possessions in india, have hitherto sold them at vendue in leadenhall street; and i believe, considering the credit our merchants usually obtained in london on those goods, and the low price the company sold them at, they could afford to supply us cheaper in england than we could get them from india in time of peace. i find the east india company themselves state, in , that seventeen-twentieths of the calicoes imported by them were exported, and twelve-twentieths of the muslins also exported, thereby realizing, as they term it, the tribute which india pays to great britain through the medium of its commerce. in the company state the internal consumption of india calicoes and muslins to be reduced in britain to almost nothing. they add, every shop offers british muslins for sale, equal in appearance, and of more elegant patterns than those of india, for one-fourth, or perhaps more than one-third less in price. they say nine-tenths of all muslins and calicoes are sold for exportation. the th article is one of the most objectionable of the whole treaty, because it fundamentally contradicts all the provisions heretofore made by our government for the encouragement and protection of the navigation of this country. by it it is settled that, so far as respects us, no tonnage duties shall be laid on british vessels but what shall be laid on those of all other nations; no duties on british articles but what shall be laid on those of every other nation; no embargo to affect britain but what affects all other nations alike; american bottoms are left exposed to be charged, in the european british ports, tonnage duties equal to those laid on british bottoms here; countervailing duties may be laid in england to equalize the difference of duties on european or asiatic goods imported here in british or american vessels; and no additional difference in tonnage or duties of this kind is to be made hereafter. these principles deserve to be separately examined. they virtually repeal all the laws heretofore made as to navigation and impost, by indirectly equalizing the tonnage and duties on the british and american vessels; and they restrain, in future, the powers of congress on some of the most important regulations of foreign commerce that could come before them. on a review, then, of the commercial articles, they may be summed up as follows: west india trade left blank by the suspension of the th article. east india trade subjected to a condition of residence, rendering it precarious, and restricted to a landing of the goods exported in the united states, not known to have ever been imposed in any way similar, on any other nation trading to bengal, while all nations are constantly allowed an equal liberty of trading there with ourselves. european, and both these trades, liable to an equalization of tonnage and duties, that cannot but operate unfavorably to the american navigation. should the countervailing duties take place in the british ports in europe on american vessels, they will probably be shut out of them altogether. in time of foreign war, our ships deprived of the neutral rights of carrying allowed them by treaty with france and spain, and exposed to be captured and detained on suspicion, as now daily happens. naval stores exposed to confiscation by england, when shipped, at a time when she is at war, to the ports of her enemies. in all these instances our navigation is materially endangered and exposed, without any equivalent advantages. may it not now well be asked, whence it comes that this interest of navigation hath become less an object of care to us than at the time we passed the laws of duty and impost on foreign ships and goods imported into them? i stated the other day my ideas of the immense importance of navigation. mr. burke gave the following opinion of a branch of it in : "as to the wealth which the colonies have drawn from the sea by their fisheries, you had all that matter fully opened at your bar. you surely thought those acquisitions of value, for they seemed even to excite your envy; and yet the spirit with which that enterprising employment has been exercised, ought rather, in my opinion, to have raised your esteem and admiration. and pray, sir, what in the world is equal to it? pass by the other parts, and look at the manner in which the people of new england have of late carried on the whale fishery. whilst we follow them among the tumbling mountains of ice, and behold them penetrating into the deepest frozen recesses of hudson's bay and davis's straits; whilst we are looking for them beneath the arctic circle, we hear that they have pierced into the opposite region of polar cold, that they are at the antipodes, and engaged under the frozen serpent of south falkland island, which, seeming too remote and romantic an object for the grasp of national ambition, is but a stage and resting place in the progress of their victorious industry. nor is the equinoctial heat more discouraging to them than the accumulated winter of both the poles. we know that whilst some of them draw the line and strike the harpoon on the coast of africa, others run the longitude, and pursue their gigantic game along the coast of brazil. no sea but what is vexed by their fisheries, no climate that is not witness to their toils. neither the perseverance of holland, nor the activity of france, nor the dexterous and firm sagacity of english enterprise, ever carried this most perilous mode of hardy industry to the extent to which it has been pushed by this recent people--a people who are still, as it were, but in the gristle, and not yet hardened into the bone of manhood. when i contemplate those things, when i know that the colonies in general owe little or nothing to any care of ours, and that they are not squeezed into this happy form by the constraints of watchful and suspicious governments, but that through a wise and salutary neglect a generous nature has been suffered to take her own way to perfection--when i reflect upon these effects, when i see how profitable they have been to us, i feel all the pride of power sink, and all presumption in the wisdom of human contrivance melt and die away within me." since then our navigation has had the growth of a man arrived at full age, (twenty-one,) and become extended to an immense size; yet was it so unprotected that, in this year, the united states wanting to remit, out of some cargoes of sugar and coffee shipped on private account, money to pay the interest of their debts in holland, they were under the necessity of asking passports for these cargoes of the french and british ministers, to let this property pass in safety over the atlantic; and i have seen it boasted in some of our papers, that orders were issued by the british government to their port admirals to respect these passports thus given by their minister or agent here; so the united states left their own merchants to carry their sugar and coffee as they might, but obtained passes for ships, in the proceeds of whose sales they were interested. what a strange circumstance, this! the american government sailing secure under passes--the private merchant exposed! but it is asked, if this treaty be so unfavorable to commerce, why are the merchants so much in favor of it? they explain the reason themselves. they are influenced by the present rather than future interests. five millions of spoliations they look to the treaty to repay; their property afloat, they fear to be taken, and war they dread; but is there really weight in these arguments? i am as largely interested as any individual among them in shipping, and have suffered the loss of one of my cargoes at bermuda, for which my underwriters have made me only a partial allowance; but i neither dread any war on the part of england, situated as she now is, nor expect any payment of my loss from the treaty. to a nation to whom she offers bounties to carry her provisions, and who is so excellent a customer for her manufactures, she will not be easily induced to offer hostilities that shall go to the extent of war; and the commissioners on spoliations are to act in london merely as arbitrators of the law of nations, on whom our claim of spoliations is at best but a very uncertain dependence. the merchants in sundry parts of the united states having thought it so, have claimed the interference of congress in advancing them the money, they rather doubted getting any where else. considering, then, this treaty as merely a bargain exhibiting little or no profit and much to lose, i separate it from all considerations foreign to itself. i judge it on its own merits, and these must lead me to vote for the proposition to suspend appropriations, especially in a moment when our seamen continue to be impressed and our ships to be taken. saturday, april . _execution of british treaty._ the house then resolved itself into a committee of the whole on the state of the union, and took up the resolution for carrying into effect the treaty with great britain. mr. nicholas said, he was sorry to find gentlemen unwilling to go into a discussion of the merits of the treaty, as he anticipated considerable benefits to the community from a fair investigation. he did not know, as had been said, that it could have no effect on the minds of members of the house, but he thought it necessary that the people should be enabled to form a just opinion of the merits of this compact, that neither opposition nor their attachment, should go beyond just bounds; that fair investigation was the most likely means of producing that calm in the public mind which he wished to see produced whenever government had finally decided, and he would venture to say, there was no place which could be resorted to for more sound information. in considering the merits of the treaty itself, mr. n. said, he would consider the subjects which pressed themselves on the negotiator and demanded provision. these were chiefly the disputes arising under the treaty of , late depredations on our trade, and the settlement of contested principles to guard us against future misunderstandings. the cases arising under the treaty of , as heretofore contested, were negroes and other property carried away contrary to its stipulations; the territorial claim under it, and on the part of great britain, an interference in the recovery of private debts. of the negroes, nothing is said in the present treaty. it is to be expected in negotiations, that some concessions are to be made for the sake of accommodation, and this sacrifice of private interests becomes sometimes unavoidable. this claim was of considerable importance to a class of the citizens of the united states, but it was of still greater importance, as it justified the united states from the charge of breaking the treaty of peace. in this respect it was highly incumbent on the negotiator to procure satisfaction. it will not be contended that it should have been a _sine qua non_ in the negotiation, and it would not now be mentioned, if it was not necessary to a fair estimate of some of the stipulations of the treaty, and if there had not been so uniform a surrender of the interests of the united states as to compel a calculation. it is now said, indeed, that the meaning of the treaty of was mistaken, and that the engagement was only to refrain from carrying away negroes, &c., which should be found in possession of the inhabitants at the time peace should take place. it is not necessary now to go into a construction of the words of the article, as its meaning has certainly been fixed by the interpretation of the parties in the ten years which elapsed after it. in all that time the united states have asserted the claim, and it cannot be shown that great britain ever contested the construction of the article. it is said, that one of the commissioners, (mr. adams,) who concluded the treaty of , in behalf of the united states, informed the senate, in their deliberations on this treaty, that it was the unquestionable meaning of the article, to save all negroes and other property then in the hands of the british; that the article was inserted after all other points had been settled at the instance of mr. laurens, who just then arrived from his confinement in london, and the reason assigned by him was, that many of the people of the united states would be disabled from complying with the part of the treaty which respects debts unless this provision was made; that the same gentleman, who was afterwards ambassador from the united states to the court of london, also informed the senate that, during his embassy, this construction of the article was never denied, and that it seemed to be understood by the ministry, that, on a settlement with the united states, compensation must be made. this subject was fully investigated by the negotiator of the treaty (mr. jay) while he was secretary of foreign affairs; all the reasons which now arm the friends of the treaty against this claim were examined by him, and then his decision was, that we were entitled to compensation. the reputed author of the best defence of the treaty, (mr. hamilton,) in the year , introduced a resolution into congress, declaring that the negroes, &c., had been carried away by the british armies, contrary to the true intent and meaning of the treaty. mr. n. thought it too late to extort a meaning from a contract after it had existed more than ten years; and he did not doubt every candid mind would be satisfied by the acquiescence of britain, and the evidence which he had produced of a perfect understanding between the two countries on the subject. if the new construction of the article could not be established, the first infraction of the treaty of remained indisputable. before the treaty became binding, great britain, by carrying away the negroes, put it out of her power to execute the contract which she had made, while, on the part of the united states, no act had been done which was inconsistent with the treaty, provided the acts of the states did not continue to operate after the ratifications were exchanged. before he examined the cases provided for in this treaty, it was necessary to remark, that the treaty declares its intention to be to settle the disputes of the two countries without regard to former criminations, and all the writers in favor of the treaty, declare that it was necessary to waive the first infraction of the former treaty. this was a proper principle, and he only asked that it should have been pursued. this spirit of conciliation must have meant to put both parties on the same footing, either by agreeing that neither party had been the cause of the treaty not being executed, or that both had been equally guilty. he would examine whether either of these concessions had been pursued. to obtain a surrender of the posts, and the territory withheld from us, we have sanctioned the subsequent alienations of land by the king of great britain. we have confirmed the claims of the inhabitants and dispensed with their allegiance, by permitting them to remain subjects of great britain; we have opened our frontier to all their citizens, and permitted them to retain a share of the indian trade. mr. n. did not pretend to judge of the commercial effect of the intercourse between the frontiers, but he apprehended that, in another respect, this concession would destroy the whole value of the acquisition. the traders would be enabled to maintain their accustomed influence over the indians, and would have more inducements than when they had a monopoly of the trade to embroil them with the united states. formerly, they were interested in their continuing in peace, as war prevented the acquisition of skins and furs; but when american traders shall embark in the trade, they will have an obvious interest in war as the certain means of banishing their rivals. it appears, then, that the treaty of , in this respect, is not revived--that there is a new contract with respect to the posts, and much less will be obtained than if that treaty had been executed. when the claims of great britain, under the treaty of , became the subject of the present treaty, the stipulations discover a different principle. the united states give up the claim for negroes, and agree to receive the posts on terms which greatly diminish their value; but, when the debts due from citizens of the united states to subjects of great britain are to be provided for, there is not a stipulation that they may now be pursued without hindrance, but there is an engagement, on the part of the united states, to pay all losses which have arisen from the infraction of the treaty of peace, so far as it respects them. on what ground could this assumption have been made? why is this penalty imposed on the united states? there can be but one justification, and that is, that they had been guilty of the first infraction of the treaty of peace, and must make amends; but there was to be no concession of this kind, so that if damages were to be given at all, they should be given on both sides. it seems clear, then, whatever pretences are made by the treaty or its advocates, that the first infraction of the treaty of peace is fixed on the united states, and that they are to make compensation for an injury. where does the conciliating temper of great britain manifest itself? had she a claim under the treaty of , which is forgotten? does she not receive every thing which she could have demanded in relation to that treaty? the united states are to indemnify her citizens completely for the non-execution at the time, and are to receive less than was promised them without the least compensation for the delay. but it is somewhere said, that the damages could not be demanded for withholding the posts, because they could not be computed. it will be agreed by those who press the acceptance of this treaty in order to obtain the posts, that they are important to the united states. if of the consequence which they are represented to be, twelve years dispossession must have been a real injury, and the claim on great britain will be indisputable, although the amount may not be certain. this might be a good pretext for evading a payment to the united states, if this claim stood unconnected with any other; but it must be considered as a very shameless suggestion to enforce the payment of damages incurred by them. it is certainly a sufficient justification for retaining what is in their hands until great britain shall offer something on this account; otherwise she will be screened by her cunning in causing the subject of injury. again, it has been said that this inequality in the treaty was proper, because the right to recover debts returned with the peace, and did not depend merely on the treaty. it is to be remembered, that the united states justify it as a retaliation for breach on the part of great britain, and that, in forming this treaty, it was agreed to waive the right to retaliate: or, rather, the question, who first infringed the treaty. it is only to be inquired, then, whether this was a proper subject of retaliation? and if it was, the united states ought to escape all penalty for using it, or great britain must be equally subject to compensation for her infractions. (for this, see _marten's_ law of nations, page , where it is said that it matters not, in this respect, whether rights are innate, or whether they have been acquired by express or tacit covenant, or otherwise.) another class of claims which may fall on the united states is still more alarming--those for war-interest. the treaty has explicitly authorized the commissioners to judge of all claims of british subjects lost by legal impediments, whether of principal or interest, and they are to determine according to justice, equity, and the law of nations. in the correspondence on this subject between the two governments, the right has been asserted and denied; and it will depend on the commissioners to say whether war-interest is due or not; and it being to be supposed that the commissioners will advocate the principles of their respective governments, the united states are to depend on the chance election of the fifth commissioner for safety. if it shall be determined that it is due, the mischief will be insufferable. it will not merely be recovered in those cases where the principal is unpaid, nor will it be confined to those cases where it has been lost by actual judgment of a court, but will extend to all cases of private settlement, where the decision of the judiciary of the state had previously settled the principle. it appears, then, that on the subject of the disputes arising under the treaty of , there is no cause for congratulation. the claims for negroes carried off are abandoned; the posts are to be delivered up, on terms not unusual and dishonorable, but extremely dangerous to the future peace of the united states, and to obtain them in this manner we incur an obligation to pay a sum which probably will not fall short of five millions of dollars, and which may possibly amount to fifteen millions. when it is remembered that these claims commenced with our independence, and that they were the concessions to our infant struggles, what american is there who will not feel the disgrace to our manhood in abandoning them? all must blush at a comparison of the treaty we obtained with our arms, with that which has been dictated by fear. the next subject which claimed the attention of a negotiator was the injury recently sustained in the commerce of the united states; and on this subject it will be proper to review the circumstances in which the negotiator left this country. the losses sustained had been considered here as outrages of so serious a nature that all parties had concurred in demanding reparation; some had attempted at once to use coercion, and those who approved the mission declared that war must follow a failure. in this situation, where the sense of government and people was decided, and where the injury was not only intolerable in itself but was likely to be repeated, it seems astonishing that a man could be found who would conclude a treaty which gives to the united states no compensation, but more astonishing that partisans could be found here who approved his conduct. it may be asserted that no compensation is secured by the treaty, and that under its operation it is equally probable that none will be received. see the article. it has been doubted, and is, perhaps, very doubtful, whether the courts of great britain are not made the judges of irregular and illegal captures and condemnations, and whether the orders of the king are not admitted as good cause of seizure; but it never has been contended that compensation is promised in any particular case, or that any principles are established by the treaty which are to govern the commissioners. in the construction of their powers, insisted on by the advocates of the treaty, their guides are justice, equity, and the laws of nations. nobody can complain of these principles, if their fair operation was secured; but a moment's attention will show that this was nothing but an evasion of the subject. it will not be understood that i suppose it was in mr. jay's power to make his own terms, but i complain of his treating at all on the terms he did. it is said that it was not in his power to extort what he wished, but i complain that he yielded to the extortion of great britain. what has he left her to ask, what has he not surrendered? while professing, as the treaty does, that there were important points of our commerce left for future negotiation, why bind us to continue to great britain the fullest share of our commercial privileges? if the treaty had been the most complete and satisfactory, would it not be necessary to leave something to enforce its execution? what weapons have we which can reach her? the treaty makes war indispensable, as the only redress of injuries, and how will war from the united states reach great britain? it was certainly improper to give up all power of restricting her commerce until the same instrument contained the fullest satisfaction as to our own. it was improper to give up all the power of seizing on the debts of her subjects, for this, when the power of restricting her commerce was bartered for equal privileges, would be the only means of maintaining respect. it is not necessary that weapons of any sort should be used, but it is more dangerous to surrender them. i am no friend to interference in private contracts, and i can truly say, i never was willing to resort to this remedy till all others had been tried; but if there was an impossibility of doing it, the want of the power would immediately be felt. the impolicy and immorality of sequestration have been dwelt on. contrast it with war, for which it is a substitute, and it will be found in both respects unequal to it. all national remedies are attended with great mischiefs to those who use them, and they must be adopted only on comparison in this respect, and with regard to their effects on the enemy. in this last respect there seems to be no choice to the united states; they have no other weapon that can reach great britain, and i greatly fear that, when this is lost, we are completely disarmed. monday, april . _treaty with great britain._ the house then resolved itself into a committee of the whole on the state of the union; when the resolution for carrying the british treaty into effect being under consideration-- mr. giles said it was much to be regretted that all the information which could throw light upon the subject of discussion should not be before the committee. a sense of responsibility arising from the peculiarly delicate nature of the question had induced the house to take every step with more than a common degree of caution. before they proceeded to deliberate upon the expediency or inexpediency of providing for carrying the treaty into effect, they made a request to the president for the papers which attended the negotiation. this request has been refused; not because the call itself contained any thing unconstitutional; not because the contents of the papers called for were of such a nature as to render the disclosure thereof at this time improper. neither of these causes being intimated in the message, but because principles were advocated by individual gentlemen in the course of the argument inducing the call which the president thought not warranted by the constitution. mr. g. said, he did not propose to animadvert upon the conduct of the executive in departing from the resolution itself, and in noticing the arguments of individual members, nor upon any other part of the proceedings of the executive relative to the call of the house and his refusal. he only meant to remark, that being perfectly convinced of the propriety of the call itself, of the utility of the information embraced by it, and not being satisfied by the arguments of the president of the propriety of withholding the papers called for, he should have been willing to have suspended all further proceeding respecting the provision for the treaty, until the papers should be laid before the house. he would have firmly placed himself on that ground, and in that position hazarded his responsibility. the extreme sensibility excited on the public mind by the agitation of the treaty question, he had supposed, would have furnished an irresistible argument in favor of complying with the request of the house, provided no inconvenience would have attended the disclosure; and in his opinion, under all the circumstances of the case, the house would have been completely justified in suspending all further proceeding upon the question of providing for the treaty, until they received that information which they deemed necessary to guide their deliberations. but as the house had thought proper to take a different course, and had proceeded to the consideration of the question, with such lights as they possessed, he would explain the motives which would probably finally influence his vote. mr. g. said he should discuss the subject in two points of view. he would first examine the contents of the treaty itself, and then the probable consequences of refusing or of giving it efficacy. in examining the contents of the instrument itself, he proposed to go through it article by article, unless the task prescribed to himself should exceed the bounds usually allowed to members for the delivery of their sentiments. he should do this, because he wished to treat the subject with the utmost candor, and to avoid any possible imputation of intending to exhibit the bad and avoid the good parts of the treaty, if any such there were. he meant, however, to state merely the purport of many of the articles, without any animadversion, and to dwell only upon such as appeared to him the most material. the first object of the negotiation respected the inexecution of the treaty of peace. on the part of great britain, two articles had been unexecuted: the restoration of certain property in possession of the british at the close of the war, and the surrender of the western posts. on the part of the united states, one article was suggested to remain unfulfilled; it respected the promise that no legal impediment should be thrown in the way to the recovery of debts due to british subjects. the claim of compensation for the property carried away in contravention of the treaty of peace is wholly abandoned, and the value of the surrender of the posts very much lessened by the annexation of conditions which made no part of the stipulations of surrender in the treaty of peace. the united states are more than bound to fulfil the article heretofore unfulfilled by them; for instead of continuing the courts open for the recovery of debts in the usual way, as was the promise in the treaty of peace, they are made to assume the payment of all debts, interests, and damages in cases of insolvencies, and a mode of adjustment is proposed for ascertaining the amount which furnishes the greatest latitude for frauds against the united states which could be devised. this will appear in the future examination of the subject. hence it is obvious that the stipulations of the treaty abandoned the very principle of adjustment assumed by a gentleman from connecticut (mr. swift.) mr. g. would first premise, that if the article did not intend the restoration of property mentioned in it, the insertion of it in the treaty was not only unnecessary, but mischievous, as it would necessarily produce embarrassment to the parties to the instrument. the british army, at the termination of the war, was at new york; the negroes, which constituted the species of property in question, were in the southern states; so that if the article did not include that species of property taken in the course of the war, and in the possession of the british at the end of it, it was worse than nonsense. it never could have been supposed that, upon the first dawn of peace, the british would have left new york and invaded the southern country, for the purpose of plundering the inhabitants of their negroes. the peace article itself was a sufficient security against this conduct, and of course no specific provision could have been necessary for that purpose. this was not only the uniform construction of the article by the united states, but, as he always understood and believed, great britain had acquiesced in the construction until the negotiation of the present treaty. as an evidence of these facts, mr. g. observed, that american commissioners were permitted to make a list of the negroes in the possession of the british at the close of the war by the british commander; that the list was entered upon the files of congress; that there were resolutions of congress claiming compensation for the property carried away in contravention of that article in the treaty of peace, perhaps without even the intimation of a doubt as to the construction; that, during the administration of lord caermarthen, he had always understood that the claim of compensation for property carried away, was admitted, whenever british subjects were indemnified for the debts due to them from citizens of the united states. but here he had to regret the want of the papers called for by this house, as they contained all the evidence upon which this important fact depends. hence it appears that great britain herself had yielded her assent to this construction, and ought not to have been permitted to have withdrawn it afterwards. these circumstances seemed to him to be conclusive, and ingenuity itself would pause for arguments against facts so stubborn and irresistible. mr. g. then proceeded to the examination of the articles of the treaty. the first article, he said, was declaratory of peace, &c., between the two countries, which, he said, was a very desirable thing, provided it could be established upon principles compatible with the national honor and the national interests. the second and third articles contained the stipulations for the surrender of the western posts, and the conditions accompanying the surrender. the surrender of the western posts, he said, would be an extremely desirable object, if conformable with the treaty of peace, and it were unattended with any conditions. here, he said, he was desirous of giving credit to every part of the instrument which would admit of it, and was not disposed to exaggerate its imperfections. he was willing to admit that the surrender of the posts, even with the conditions annexed, was of some importance; but he would assert that the surrender lost a great portion of its value to the united states, in consequence of the conditions attached to it. he observed, two objects of primary importance were to be effected by the unqualified surrender of the posts. the one was to obtain the influence over the indians in their neighborhood, which the british now possessed. the other, the participation, at least, in the fur trade carried on with those indians. the conditions accompanying the surrender, will, in his opinion, very much impede the one, and completely defeat the other object. the stipulation in the second article, which authorizes british subjects who are now living within the precincts or jurisdiction of the posts, still to continue and to reside there, with the free use of their property; and to elect either to remain british subjects or to become american citizens at pleasure, will, in his opinion, very much impede, if not wholly obstruct, the salutary influence of the united states over the numerous tribes of indians in that quarter; which is one great object hoped for from the possession of those posts. the effects of the stipulation will appear more obvious, when it is compared with the stipulations in the next article, by which the trade with the indians is regulated. the second object, to wit, the participation in the fur trade, he believed, would be completely defeated by the regulation of that trade in the third article; that article stipulates an equality of duties between american citizens and british subjects, a free communication through that country, upon an equality of portages and ferriages. these conditions, in his opinion, would secure a complete monopoly of the fur trade to great britain; because the superiority of the british capital employed in that trade, and the inferiority of duties paid upon goods imported for that trade into canada, would, in his judgment, wholly exclude american citizens from a participation in that trade, through any channel in the united states. the united states had no mode left to counteract this monopoly but by a system of drawbacks, which appeared to him, from the nature and trade of the country, to be almost impracticable; or if not absolutely impracticable, it would compel us to purchase the trade at a price greater than it was worth. it appeared to him that great britain had foreseen these consequences, and that these articles are as well calculated to produce them, and to obstruct the views of the united states, as sagacity itself could have devised. hence it appears to him that the value of an unqualified surrender of the posts is very much lessened by the accompanying conditions. the gentleman from connecticut observed, that the surrender of the posts was absolute, and that no conditions were annexed to it. it is a sufficient answer to say that his observation is a mere criticism upon terms. if they be not conditions of the surrender, they are accompanying engagements, and are to be executed with good faith by the united states. the sixth article was, in his judgment, highly objectionable. this article assumes the payment of all debts, interests, and damages, due from american citizens to british subjects, previous to the revolution, in all cases where insolvencies have ensued, and where legal impediments to the recovery of the debts have existed. he would remark, that this was an assumption of debt by the public, which they did not owe, and never promised to pay, and that it is bettering the condition of the british creditor under the treaty of peace, without any obligation on the united states to do so. he said that, as, amongst the fashionable calumnies of the day, this article had been a fertile source of misrepresentation against the state he had the honor to represent, he was anxious to place this subject in its true light; and, as he professed to be well acquainted with it, he hoped to be indulged with some minutiæ of explanation. he said, this subject presented two aspects to the public; the one, as it respected states, the other, as it respected individuals of the united states. as to the first, he admitted that if a greater proportion of debts of this description were due from virginia than from other states, which had not, however, been ascertained, and which he doubted, in the same proportion, as a state, virginia would receive an advantage over the rest of the states, by a common assumption of the debts; but as it respected the individuals in that state who were not debtors, they stood precisely on the same footing with individuals in other states, because they were, in common with others, to contribute to the payment of debts which they never owed. it is of very little consolation to them that they live in the neighborhood of those whose debts they are to contribute to pay; for propinquity or distance can make no difference in the state of interest between the individuals who do not owe, but who are to contribute to pay. as a very small proportion of the inhabitants of virginia come under this description of debtors, the phenomenon of an opposition of that state, to this particular article, is thus explained. it is to be remarked, that this article contains no limits as to the amount of debts assumed by it, nor are there any precise data furnished for calculation. but it has been said, that if the debts be due, they ought to be paid, be the amount what it may. he said, that gentlemen should reflect, that the amount would depend very much upon the mode of adjustment, and that the mode adopted by the treaty was the most objectionable that could be devised. he observed, that the principle established for the adjustment of the debts, instead of preserving the conflicting interests of debtor and creditor, would produce a complete union of interests; and of course would furnish the greatest temptations to frauds against the united states from both debtor and creditor. hence the amount of debts assumed by the united states would probably be greatly increased beyond what would be the amount, if the debtor and creditor should be left to the ordinary course of judicial proceedings to adjust their own differences, under the principle of opposing interests. to entitle the creditor to a claim upon the united states, it is necessary for him first to establish his demand against his debtor, and then to show that his debtor was solvent at the commencement of the late war, and has since become insolvent; and that some legal impediment had intervened to prevent the recovery of the debt. hence it becomes the interest of both debtor and creditor to establish these facts, because the debtor will be relieved from his debt, by the assumption of the united states, and the claim of the creditor will be transferred from the individual to the united states, which he would, in all cases, prefer, particularly as the assistance of the debtor will often become necessary to facilitate the establishment of the debt. this, he said, was the natural operation of the union of interest produced by the assumption of the debts by the united states, and there was more danger to be apprehended from it, from the impossibility of checking it, by any vigilance on the part of the united states, and from the peculiar circumstances attending those debts. the greatest proportion of debts remaining unpaid, he believed, stood upon open accounts. in many cases, when the debts were evidenced by specialties, payments had been obtained, either by the usual course of judicial process, or by compromise between the parties. there were two circumstances attending the open accounts which would give great scope to the fraudulent combinations between the debtor and creditor. the one respected the evidence, the other the substantial causes of difference in the accounts of the creditor and debtor. in the reign of george ii. an act was passed for the more easy recovery of debts due to his majesty's subjects from his majesty's plantations in america. this act authorized the merchant in great britain to establish his debt against a colonist by affidavits taken before the commencement of the suit, and authenticated in the usual mode. this deprived the defendant of all opportunity of cross-examination, so essential to the discovery of truth, and the jury of all knowledge of the character and credibility of the deponent. in virginia, the affidavits taken in pursuance of this act, have been deemed incompetent to the establishment of the debt, because the act itself destroys the very nature and properties of evidence. hence, in all disputed claims founded upon this act, judgments have been rendered for the defendants. if this should be deemed a legal impediment to the recovery, this whole description of debts would probably come under the description of debts assumed. he observed, that the words used in the treaty were calculated, in his opinion, with a view to this construction, and must have been dictated by persons better informed of the nature of this business than he presumed the envoy extraordinary of the united states could have been. the other circumstances arose from the nature of the remittances. these were generally made in tobacco. the sales of this article were intrusted solely to the merchant residing in great britain, and the american shipper had no check whatever upon the merchant making the sale. upon tendering these accounts, the tobacco is often set down at a price very inferior to the average price of that article in europe, at the time of making the sale. a great number of controversies have taken place upon this ground, which remain unsettled; but, if the united states should assume the debts of the individuals thus circumstanced, they would have no inducement to contest these accounts in a course of judicial proceedings, and the promise of exoneration from the creditor, will often induce the debtor to facilitate the establishment of the claims against the united states. he said he had not overlooked the clause in this article of the treaty, which compels an assignment of the claim from the creditor to the united states, but that would have little or no operation to check the practice invited by this article, because the debtor is presumed to be insolvent before the assignment is made, and he believed the united states would be but unsuccessful collectors from insolvent debtors. from these circumstances, he concluded, that this assumption of debt, without any obligation for so doing, was extremely improper, particularly when it is recollected that this article sweeps away all acts of limitation, and relates to the whole extensive scene of business carried on in the united states, from the extremes of new hampshire to the extremes of georgia, for an unlimited time before the revolution. he observed, if he were to make a conjecture as to the amount, it would be a loose one; but if he were to choose between indemnification to the american merchants for recent spoliations committed upon their commerce, or the payment of these debts, he should not hesitate to prefer the first alternative; because, to that there were known limits; to the other there were not, nor any data for calculation under the mode of adjustment prescribed by the treaty. he, therefore, cautioned gentlemen against the assumption of this unascertained debt, for he believed it would be attended with a responsibility which they could not answer to their constituents, nor would the responsibility be alleviated by the recollection of the merits of the individuals for whose benefit it is made. the increase of the debt of the united states by these artificial means, without any obligation to do so, he thought highly objectionable. the th article, he said, was of a very extraordinary complexion. it was remarkable, both as to the matter it contained, and the manner in which it was expressed. it is in the following words: "neither the debts due from individuals of the one nation to individuals of the other, nor shares, nor moneys which they may have in the public funds, or in the public or private banks, shall ever in any event of war, or national differences, be sequestered or confiscated, it being unjust and impolitic that debts and engagements contracted and made by individuals having confidence in each other and in their respective governments, should ever be destroyed or impaired by national authority on account of the national differences and discontents." mr. g. remarked, that this article also had assumed the resemblance of reciprocity; but no reciprocity in fact. british subjects have great sums, both in public and private funds, in the united states. american citizens have little or no property in public or private funds in great britain. hence the evident and substantial inequality of this reciprocal stipulation. on the other hand, american citizens have a great share of property on the water, with very little naval protection, and of course subject to the naval superiority of great britain. if, therefore, great britain had stipulated, in case of war, that in consideration of a refusal on the part of the united states, to sequestrate property of british subjects upon land, she would not molest the property of american citizens upon water, there would then have been a substantial, instead of a nominal reciprocity; as the article now stands there is an important right conceded, and no compensation obtained. this article, however, has been highly applauded by a particular description of persons interested in it, in consequence of the affectation of morality professed by it. it has been said to be dishonest and immoral to take the property of individuals for the purpose of compensating national wrongs. he observed, that he could see no difference between the morality of taking the property of individuals upon water, and the property of individuals upon land. the difference of the element could make no difference in the morality of the act. however strongly, therefore, this moral impulse was operating upon the american envoy whilst engaged in the construction of this article, it had entirely dissipated before he had arrived at the th article; for, in that article, the principle of privateering is not only admitted, but its operation facilitated; so that, unless the interest of great britain is to be the criterion of the envoy's morality, what he has gained by the morality of the th article must be at least balanced by the immorality of the th. but, mr. g. remarked, that sequestration was always admitted as part of the law of nations, and hence he presumed it was not immoral under certain circumstances. he said it appeared to be the opinion of some, that where the property of an individual was sequestered on account of the act of his nation, that the individual was to sustain the loss, but that was not the case. the sequestration itself imposes upon the government, to which the individual belongs, an obligation of reimbursement. hence the sequestration does not ultimately rest upon the individual, but upon the government, for whose wrong the property was taken. this is also conformable to the laws of nations. it was the course pursued by great britain for all sequestrations made during the american war, and is the course which would be pursued by all nations. mr. g. said, that war itself was immoral in most cases; and justified, in his opinion, only in the case of self-defence; but if a stipulation had been inserted in this treaty, which prohibited the united states from declaring war, it would have been justly and universally reprobated. the present article prohibits the united states from resorting to the best means not only of preventing war, but the most efficacious means of supporting it. hence, the surrender of the right was the most impolitic concession, and is infinitely aggravated by its being a voluntary concession; no equivalent being received in return. mr. g. said, it was dishonorable to the united states because it evidenced a want of confidence in the discretion of the constituted authorities. the right of sequestration is admitted to be essential to national sovereignty; but, lest it should be indiscreetly used by the united states, its guardianship is transferred to great britain. mr. g. said, he viewed sequestration as an extraordinary remedy, to be resorted to only on extraordinary occasions. and although he would admit that but few cases would justify a resort to it, yet it was one of our best instruments of defence, considering our relationship to great britain, and ought not therefore to have been surrendered. he said, too, that this restraint was imposed upon the united states for an unlimited time, and was the more objectionable, as it was a species of legislation against the discretion of legislation. upon the whole, he conscientiously believed the treaty to be a bad one. he believed it contained the most complete evidence of british interference in our internal affairs, and had laid the foundation for the further extension of british influence. it has restricted the exercise of some of the important rights of national sovereignty. it has voluntarily hazarded the neutrality of the united states in the present european war, and destroyed all pretensions to its character of impartiality. it has not afforded protection to our neutral rights, which was amongst its great objects; and in the adjustment of the differences resulting from the inexecution of the treaty of peace, it is unequal and unjust. all these important circumstances considered, and when it is also considered that the british persevere in impressing our seamen and seizing our vessels, in violation of the clearest rights of neutral nations, even since the signing of the treaty, he could not consent to be the instrument of giving it efficacy. he believed that it was one of those extraordinary cases which justified strong and extraordinary resistance. when mr. giles had concluded his speech, mr. goodhue addressed the chair as follows: mr. chairman: much noise has been made, and every art has been practised to prejudice the people against the treaty now under consideration. i mean to look at it and see if it be the horrid thing it is represented to be, and particularly to examine the commercial part, to know whether we have made a good bargain or not, i will take notice of some objections that have been made, and then touch on the great evils that may justly be apprehended, if we refuse to carry it into effect. and here let me observe, the subject is the most momentous that ever came before this house, and i mean to put no false colors on it, or to paint any evils that will follow a rejection, beyond what, in such an event, i most conscientiously believe will be realized. i will now state what new sources of commerce are opened to us by the treaty that we had not before, and then see what we have given for them. st. we have got by the treaty a perfectly free trade across the land, and by means of the lakes with canada, that we had not before, and on the same terms with british subjects, which i estimate as a great advantage to this country; for it is evident, that we can introduce into canada--up the north river and across the lakes--almost any kind of goods, at less expense and on better terms than the british can up the river st. lawrence, which is very lengthy, and frozen up six or seven months in the year. having this advantage, can it be doubted that we have not industry and enterprise to improve it? no, sir, the enterprise of our people is such, that we shall unquestionably carry on almost all the trade of upper canada, and that great western country which will be opened to us; by which means we shall have at least an equal share in their fur trade also with them, which we have so long wanted. but it is said, the portages or carrying places being common to both, they will run away with the greater part of the trade. why so? i am not afraid but the citizens of the united states, if they are put on an equal footing with others, will make their way equal with any people on earth. but it is said, by way of lessening the advantages of this trade, that goods imported into canada pay little or no duty, and the goods that we import are by our laws subject to high duty, and that no drawback of the duty can be established upon their being sent into canada, and therefore, we cannot supply them on equal terms. to this, i reply, that i do not know what duty they impose on goods when imported into canada, but i believe it is considerable; and i do not believe but it is possible to devise a plan for a drawback of the duty which may have been paid on our goods when they are sent into canada, and that at any rate the ease by which we can send them there up the north river, compared with their being introduced by the st. lawrence, will more than compensate for any difference of duty, in case a drawback should not be admitted. . we have got established by the treaty, a right to trade with all their settlements in india on the same terms with their own subjects, and thus we have laid open to us a free trade with those vast possessions of theirs in that quarter of the globe, which, it is said, contains twenty or thirty millions of inhabitants. let me inform the committee, that our trade to india is already very great and profitable. in the town of salem only, in which i live, we have thirty sail of indiamen, and doubtless, in the united states, the whole amount must be nearly a hundred; and the number will increase in such a manner, as by our superior enterprise, industry and economy, that we shall not only supply our own wants, but those of the west indies and europe, in a great measure, with india articles; for though, by the treaty which gives us this free trade, we are not permitted to carry india goods from their settlements directly to europe, yet there is no doubt, in my mind, but we can export from hence thither cheaper than they can get them any other way, for this obvious reason, because their trade to india is carried on by their companies, in which despatch and economy is by no means so much attended to, as it is when managed by an individual. but it is said we had this trade before the treaty. i answer, it is true we had, but it was only by way of indulgence, subject to be deprived of it whenever they thought fit; and let me ask, is it not vastly better to have it secured as a right, than to have it rest on the precarious tenure of indulgence? here, mr. chairman, let me remark, that they have granted to us this free trade to india, which their own subjects (except the india company) are entirely shut out from. what must be the feelings of british subjects when they see their government has given to strangers a perfect freedom of trade to their india settlements, and shut them out from it altogether? and what must be their astonishment when they hear that some people amongst us think that great britain has conferred no favor upon us by doing it? hear what the famous mr. grattan, the great irish patriot, said in the irish parliament, on the subject: "this very america, which the british minister insulted and then crouched to, had, by the late treaty of commerce, been admitted to all the british settlements in the east and west indies, to the latter of which ireland was only conditionally admitted, and from the former unconditionally excluded; yet ireland was a loyal, attached nation, and america an alien." these are the commercial acquisitions we have obtained by the treaty; and let me ask, what have we given to britain in return for them? i answer, nothing more than they have all along enjoyed in our ports, by the laws of the united states, in common with other foreign nations. no new commercial advantages have we given them; they can come here now on no better terms than before. but, it is said, we have tied our hands by the treaty, that we will not lay any greater duties on their commerce than we do on all other foreign nations. pray, let me ask, if great britain have not equally tied their hands? and can we be so unreasonable as to suppose that they would ever consent to a treaty that had not such terms of reciprocity? it is again said, by way of objection, that they have reserved to themselves the right of countervailing the difference of duty, which we, by our laws, have established between our own citizens and foreigners, and that she will now exercise that right by imposing equal duties on our vessels in the ports of great britain. let me answer this objection to the treaty, by asking if she had not this same right, and even an unlimited one, of imposing what duties she saw proper on our vessels in her ports before the treaty? she did not see fit to exercise it then, neither is it probable she will now. and, lest it should be said she will now do it, because we are restrained by the treaty from increasing the duty on her ships beyond what it now is, and, therefore, she has not the same fear operating to prevent it that she had before, let me remark, that if she was restrained by any such considerations, this same restraint would be in force again in two years after the present war ceased, being the period of the existence of those articles of the treaty--a time so short as to render it highly probable she will not think it worth while to make the experiment. a great cry has been made against the commercial part of the treaty, and i must confess i never could see on what ground, for it is a certain fact we have given great britain no new privileges in our atlantic ports by the treaty, and no other in their intercourse by the way of canada, than they have given us; and, therefore, it may fairly be said that, by the treaty, we have given them no new commercial privileges they were not before enjoying in our ports; and they, on their part, have given us considerable; and consequently, on our side, the bargain must be a good one. let me ask, why there is for ever so much complaint against great britain because she does not open all her colonies freely to us? does portugal open the brazils? no; she shuts out all foreigners. did holland, before the present war, open to us all her rich possessions in the east indies? no. does spain open her rich islands in the east and west indies, and her immense possessions in south america? no. does she, in the treaty lately made, open even florida, as great britain has canada? no. did france before this war give us free trade to her colonies? no. and do not all those nations, as well as every other, come into our ports on the same terms with the british? why, then, make this rant about the british? let them fare as well in our ports as other foreigners, inasmuch as they certainly grant as much to us as most others do, is all i contend for. i do not wish they should fare better. the impressment of our seamen by the british is made use of as an objection to our carrying the treaty into effect. it is, to be sure, a mortifying circumstance, and must excite our utmost detestation of such conduct. but let not our passions get the better of our judgment. we have no kind of evidence that such conduct is countenanced by their admiralty, but the evidence we have is of a contrary nature, for, upon our minister's remonstrating to the british ministry on this point, they assured him that orders had been issued, and should be repeated to the commanders of their ships, not to commit such violences on our rights, at the same time observing, that, speaking the same language as we do, it was difficult in all cases to distinguish their seamen from ours. in this situation let us believe that a firm and spirited remonstrance will be made by our executive against such outrages; and let us hope that it may have the desired effect. but, let me ask, if the treaty should not be carried into effect, will that relieve that deserving class of our citizens? will it not have probably a contrary effect, and be the means of increasing the evil tenfold more than it exists at present? tuesday, april . _execution of british treaty._ the house then resolved itself into a committee of the whole on the state of the union, on the motion for making provision for carrying into effect the treaty with great britain; when mr. heath rose and addressed the chair as follows: mr. chairman: in the discussion of this so momentous and important a subject, and so big at the same time with the dearest interests of our common country, i shall not attempt any critical analysis upon the good and bad parts of the instrument, as the gentlemen preceding me in this debate have already done, but only confine myself to a few remarks, to justify my conduct to god and my country for the vote i shall give in the ultimate decision of the question. mr. chairman, permit me here to remark, that during the recess of the last congress, when the american mind was roused with so much irritation and sensibility through all parts of the union against this paper, after its first appearance in public print, i was one of those who kept aloof from the storm, suspended my opinion, became of no party, considering myself hereafter bound to discharge the important duties of an american representative on the occasion. and now since the commencement of the present session, though two-thirds of my time overwhelmed with disease, and daily languishing in the bed of pain, even under such a dreadful personal calamity, my reflections were not turned aside from the awfulness of the subject before us; which before and during this discussion, i confess, as often as i have revolved in my mind, with a review of the situation of my country, i have frequently paused, not knowing the best expedient to pursue to avoid impending evils. mr. chairman, i have strange forebodings on this occasion. by the second and third articles of the instrument before you, in the surrender of the posts, british subjects have a right to reside with us; indians have a right to pass and repass from post to post from our district to their portages and ferriages free, all in the vicinity within gun-shot. will not their traders continue their old acquaintanceship with them in spite of us? are not their capitals for trade larger than ours? where, then, are the real profits anticipated? all visionary, like the beggar's dream, grasping mountains of gold, and when the morning sun shakes off his slumber, it dissipates the delusion. but time will make more converts than reason. further, before i quit this subject of inequality, i wish to remark, by way of reply to my much respected friend from connecticut, who was up a few days ago, in language nearly similar, and the same sort of ingenuity of a celebrated champion, who has dedicated much labor in favor of this instrument, under the signature of _camillus_, that great britain had never violated the seventh article of the treaty of peace in not restoring the slaves and other property; that they were taken in war, and their freedom offered to them by the british commanders, and were not taken after a cessation of hostilities; and, therefore, were not proper objects of surrender. oh, the deceit, the sophistry of this construction! i shall just answer it by reading from the journals of the old congress what the real _camillus_, or, in other words, the learned mr. hamilton, thought of that article at that time. he read the journals of , where mr. hamilton moved in congress for commissioners to be sent to new york to the british commander to request an explanation respecting an infraction of that article. so was mr. hamilton's opinion at that time, so was the prevalent opinion of all america at that time. my second point, the want of reciprocity in the instrument, has been so well explained by my worthy colleague from virginia, that i confess i am curtailed in my sentiments a little here. but, suffice it to say, that the local circumstances of this country will make the suspension of the law of alienage more advantageous by tenfold, than could be reaped by american citizens over the other side of the water. witness the great disproportion between american citizens holding lands in britain and british subjects in this country. i wish it may not revive old proprietary rights, with its long train of tenure, fealty, and vassalage. perhaps my fears may ensue from residing in that of virginia, where this tenure once prevailed. i now come to the third objection, and the most important. other objections, though they have their weight in my mind, yet perhaps they might yield their force, were it not for this the more insurmountable. this might be said with propriety to be the foundation of the call for papers from the executive respecting the treaty. by the various articles embracing this subject, the house of representatives of the united states, in the treaty-making power, have lived to see the day, which i am sure no human sagacity could have ever divined, that they may be considered as a perfect collective cypherical body of men in legislation, reduced to a mere committee of ways and means, subservient to executive policy, just called together, for voting the necessary supplies of money for foreign negotiation, or for the current annual expenses of government. america is here totally disarmed of every alternative to resort to in the hour of distress--to prevent the horrors of war, no sequestration, no embargo, no commercial restriction, can be the subject of future legislation against the tender and humane people of britain. is this right, is this just, that all our rights should be thus bartered away under a treaty-making power? if it is so, and it must be borne, dreadful, dreadful, indeed, must be the calamity of future generations of america, under the operation of this government; for any one of them, or all together, i would resort to an awful national crisis, sooner than sound the trumpet of war, and let the banners of blood loose upon the earth. mr. williams said, that various opinions had been delivered upon the various subjects involved in the treaty. he should take the liberty of stating to the committee his sentiments on the occasion, and then inquire into the policy or impolicy of carrying the treaty into effect. but, in the first place, he conceived it to be necessary to take a view of its origin, the division, and party dissensions which then prevailed--the critical posture of our affairs, the depredations committed on our commerce, and the probability of a war. let us, said mr. w., take a view of the debates of that house in the year and , and he believed it would be discovered that if the business of negotiation had not taken place, this country must have been involved in a war. it would be remembered, that a gentleman from virginia, (mr. madison,) on the d of january, , laid on the table of this house seven resolutions. the object of which was to compel britain to come to some terms of accommodation, and to prevent further depredations on our commerce. after a discussion of several weeks, the first resolution, which was for imposing an additional duty on the importation of a great variety of manufactures from nations having no commercial treaty with the united states was agreed to by a small majority. britain had, said he, ever since the end of the war, declined entering into any commercial treaty with us. in the mean time, the danger from british depredations augmented with such rapidity that those resolutions became insufficient, by reason of the seizure of an immense number of our vessels, in consequence of instructions that had been given by the british ministry on the th of november, ; and other resolutions were then moved for the sequestration of british property, but the result was an embargo and negotiation. was it not then urged by members of that house that the british nation refused to negotiate with them? it was, indeed, supposed it would be attended with considerable difficulties, and that a considerable class of citizens, let the consequences be what they might, would not be satisfied with the result. however, it was thought best to adopt the measure. but, said mr. w., let us waive this subject, and inquire if negotiation had failed, whether war would not have been the consequence? can it be supposed that, after the british had committed certain spoliations on our commerce; after their order of the th of november, ; after the declaration of lord dorchester to the indians, that war would not have followed? the national pride of great britain could not have yielded to compulsion without self-degradation; and it would be remembered, too, that from the relation in which the two countries have stood to each other, it must have cost more to the pride of britain to have received the law from us than from any other power. and if war had been the consequence, how were we to have recovered the amount of the spoliations committed on the property of our merchants? how were we to act? were we to demand satisfaction? we have no protection to our commerce, and therefore the british can at any time arrest it without additional expense to themselves, having near vessels of war at command. what had been our situation ever since the negotiation? have we not, said he, been one of the happiest nations upon earth? yet we are about to oppose the necessary appropriations to carry into effect that treaty which hath been the means of keeping us in a neutrality, and thereby hazard a war which may be our ruin. but, if we arrest the treaty by refusing to make the necessary appropriations, can we suppose great britain will carry the treaty into effect on her part? it would be inconsistent to think so. great britain was certainly acquainted with what was going on within these walls, and would refuse to give up the posts at the time specified. who had been the cause of the posts being so long kept from the united states? the state of new york had been too long kept from its just due; that state had not prevented the british from obtaining their debt, and the people now looked with anxious expectation to the time when the posts were to be given up. they were, at present, considerably alarmed, lest the british treaty should not be carried into effect. he had received letters that morning, from some of his constituents, who were at new york, endeavoring to sell their produce (for a number of the farmers in that part of the country which he came from, did not sell their produce to the merchants, but attended the market with it themselves.) they write the price of flour had already fallen three dollars a barrel, and wheat four shillings per bushel. who were to be the losers, under these circumstances? the farmers. who had the most produce to sell? the farmers in the state of new york. the other day a resolution was laid upon our table, proposing to lay an embargo on the exportation of corn. this, if it had been agreed to, would have had an immediate effect on the state of new york. what was the effect of the embargo in ? the farmers were obliged to sell their produce for what they could get. whatever loss was experienced, fell upon the farmer; and so it will be with respect to their present proceedings. if merchants cannot get insurance, will they send their vessels out? no; and they will certainly give no more produce than they can sell their articles for, with a trade profit. the great objection against the treaty was, that payment for the negroes which were carried away by the british, at the close of the war, was not provided for. it appears that this, at best, was a doubtful point. general carlton, previous to his leaving new york at the close of the war, and when the negroes were demanded of him, said, that many slaves had been declared free by his predecessors before his own arrival; over these, he said, he neither possessed nor could assume any control. he considered them as at liberty to go to any part of the world which they thought proper. he was unwilling to suppose that the british ministry could stipulate, by any treaty, to make themselves guilty of a notorious breach of public faith to people of any color. he considered restoration, where inseparable from a violation of that faith, as, in itself, utterly impracticable. it was acknowledged by every gentleman that the treaty of was broken by the united states; and, if so, what could their negotiator do? the british government would not come into the same terms as the treaty of , in the sense and meaning of the gentleman from virginia, nor would they admit that that treaty compelled them to give up or make restitution for the negroes. their negotiator, thus situated, no doubt concluded that the amount of the negroes was not an object which ought to prevent a negotiation so desirable at that time, and agreeable to the law of nations. the treaty of had been violated. here mr. w. quoted several authorities, among which was _marten's_ law of nations: "the violation of one article only of a treaty, by one party, may, at least successively, give the other a right to violate the whole treaty, unless this right has been formally renounced." the united states having violated that treaty, there was no other way than commencing a negotiation. and would gentlemen say that the negotiation had not been attended with beneficial consequences to this country? was not peace the most to be desired, especially in our present situation? had not the managers of our government kept a watchful eye on our affairs? had not our neutrality been the occasion of our wealth and prosperity? and having now entered into a treaty with spain, algiers, and natives, let us carry that with great britain into effect, and secure to us peace with all the world. when mr. williams had concluded-- mr. hillhouse rose and said, the subject now under consideration was one of the first in magnitude he had ever been called to deliberate upon, and that the circumstances under which it came up were peculiar, for previous to the treaty's being either promulgated or known, a hue-and-cry had been raised, and the prejudices of the people as much as possible excited against it, and he confessed it had not been without its effect upon his own mind. when the treaty came out, therefore, he was led to examine it with attention, compare it with our treaties with other nations, and those between great britain and other nations; the result of this inquiry was, that he found that no privilege or advantage given by great britain to the other nations was withheld from us; that advantages were secured to us which were enjoyed by no other nation, nor even by her own subjects: that we gave her little that was not enjoyed by every other nation; and, on the whole, that it was as good a treaty as we had a right to expect, and as he had ever expected to obtain. he was sensible that prejudice, which, like a sentinel at the door of the human mind to keep out truth and argument, had induced many good citizens of the united states at first to be opposed to the treaty, who, upon being prevailed on to give it a more candid examination, had declared in favor of it; but he hoped the representatives of the people, called to decide on a question which might affect the dearest interests of millions, would, as much as possible, divest themselves of prejudice and passion: to do it entirely, he believed, was impossible. the first, and, if well-founded, the most important objection which he had heard made against the treaty was, that a claim for negroes and other property carried away from new york had been wholly overlooked or given up by our minister. here, he said, he was sensible any argument he might adduce would be opposed by the party opinions formed at the time--when judging in our own case, and when we felt a great degree of sensibility for the losses and injuries we had recently experienced. he was not unapprised that congress had claimed that the construction of the th article of the treaty was such as to require the delivering up of the negroes, and had passed the resolution read by the gentleman from virginia, (mr. heath,) and that that opinion had, without examination, been implicitly followed by many respectable characters; but he hoped at this distance of time, he might expect a candid hearing, whilst he examined their arguments and the law of nations, to which alone resort can be had to decide differences between sovereign and independent nations. to his mind they were conclusive that we had not a well-founded claim; to every mind, he believed, they would render the claim at least doubtful. his first inquiry, he said, should be, whether negroes were to be considered as property? this, he believed, must be admitted: they were thus recognized by the article itself, which says "negroes or other property." negroes being mentioned amounts only to a specification of one kind of property; as, in the constitution, it says "capitation or other direct taxes," which is a conclusive recognition that a capitation tax is a direct tax, within the meaning of the constitution. upon no other ground than that of property could the united states claim them; as men, they had a right to go where they pleased. our commissioners, at the time of the embarkation, had no hesitation in declaring that they considered "negroes, horses, and other property," as being precisely on the same footing, and selected a claim for a horse as one of the strongest that could be found to enforce a compliance with this construction of the article. the claim was in these words: "mr. vanderburgh had a horse stolen from him, out of his stable in beekman's precinct, in dutchess county, th february, , and the horse was conveyed by the person who stole him to a then british post, in westchester county, where he has since been detained; so that mr. vanderburgh could not recover him again. the horse is now in the possession of col. james de launcy, of this city, from whom mr. vanderburgh has demanded him, and who refuses to deliver him to mr. vanderburgh." in the letter of the commissioners to general washington, on this subject, they say: "in the interview between the th and th, numbers applied to us for a restitution of their negroes and other property in the possession of others, but we supposed it most eligible to defer a requisition till a clear unequivocal case, similar to that of mr. vanderburgh's, where the proofs were at hand and not embarrassed with the circumstances of a capture in war or other pretences under which property is withheld here, should present itself; sensible that if restitution was denied in such an instance, it would inevitably be in every other." it therefore appears clear that negroes, horses, and other property, were, by this article, placed upon the same footing, and that it was as much a violation of the treaty to carry away a horse as a negro. he next proceeded to inquire what was the situation of this property, and in whom, according to the law of nations, it was vested at the time of executing the treaty? this point, he said, mr. jefferson had fully settled to his hand, and read out of his collection the following extracts: "we now come together (says mr. jefferson) to consider that instrument which was to heal our wounds, and begin a new chapter in our history. the state in which they found things is to be considered as rightful; so says the law of nations.--_vattel._ the state in which things are found at the moment of the treaty, should be considered as lawful, and if it is meant to make any change in it, the treaty must expressly mention it. consequently, all things about which the treaty is silent, must remain in the state in which they are found at its conclusion.--_bynk._ since it is a condition of war that enemies may be deprived of all their rights, it is reasonable that every thing of an enemy's, found among his enemies, should change its owners, and go to the treasury. it is moreover usually directed, in all declarations of war, that the goods of enemies, as well those found among us as those taken in war, shall be confiscated." these authorities, he said, clearly proved that all negroes and other property which in the course of the war had been taken, or in any way had fallen into the hands of the british, had shifted their owner, and were no longer the property of the american inhabitants. in the case of negroes, the british commander-in-chief had exercised the highest act of ownership, by manumitting such of them as should conform to certain stipulations, pointed out in his proclamation. if any change was intended to have been made by the treaty in the circumstances of these negroes, and it had been intended they should be again returned into bondage, there would have been some express stipulation to that effect in the treaty. the words are, "and without causing any destruction, or carrying away any negroes or other property of the american inhabitants, withdraw all his armies," &c. there is nothing that indicates the least intention that this article should have a retrospective operation. it can only relate to property then belonging to the american inhabitants. wherever any article was intended to have a retrospective operation, some expression is used that clearly shows such intention. in this same article, speaking of delivering up records, deeds, &c., these words are added, "which in the course of the war may have fallen into the hands of his officers," &c. in the th article, "debts heretofore contracted." any other construction would have required the restoration of vessels which had been taken from the americans, and were then in new york, under the term "other property," as well as negroes and horses. if any negroes or other property, in the possession of the american inhabitants at or after signing the preliminary articles, were carried off, it was no doubt a violation of the treaty, but he had not understood that they refused to deliver up property of that description, or that such property was carried off to any great amount. but this matter does not rest only on there being no words in the treaty which can be construed to have a retrospective operation, but it is fairly to be inferred from the papers contained in this same collection of mr. jefferson, that it was so understood by the negotiators; for, in the course of that negotiation; it appears to have been a primary object with the british minister to obtain restitution of the tory estates, or compensation for them. they almost made a _sine qua non_, and a refusal to comply had well-nigh broken off the negotiation; and to induce the british minister to relinquish that article, our commissioners brought in a claim for negroes and other property which had been taken, and towns and villages which had been destroyed during the war. he here read the following letter from mr. oswald, the british minister, to our commissioners, viz: "you may remember, that from the very beginning of our negotiation for settling a peace between great britain and america, i insisted that you should positively stipulate for the restoration of the property of all those under the denomination of loyalists or refugees, who have taken part with great britain in the present war; or if the property had been resold, and passed into such variety of hands as to render the restoration impracticable, (which you assert to be the case in many instances,) you should stipulate for a compensation or indemnification to those persons adequate to their losses. to those propositions, you said, you could not accede. mr. stachey, since his arrival at paris, has most strenuously joined me in insisting upon the said restitution, compensation, or indemnification, and in laying before you every argument in favor of the demands, founded on national honor, and upon the true principles of justice. those demands you must have understood to extend, not only to all persons of the above-mentioned description who have fled to europe, but likewise to all those who may now be in any part of north america, dwelling under the protection of his majesty's arm, or otherwise. we have also insisted on a mutual stipulation for a general amnesty on both sides, comprehending thereby an enlargement of all persons who, on account of offences committed, or supposed to be committed, since the commencement of hostilities, may now be in confinement, and for an immediate repossession of their properties and peaceable enjoyment thereof, under the government of the united states. to this you have not given a particular and direct answer. it is, however, incumbent on me, as commissioner of the king of great britain, to repeat the several demands, and without going over those arguments upon paper, which we have so often urged in conversation, to press your immediate attention to these subjects, and to urge you to enter into proper stipulations for their restitution, compensation, and amnesty, before we proceed further in this negotiation." to which our commissioners returned the following answer: "in answer to the letter you did us the honor to write on the th instant, we beg leave to repeat what we often said in conversation, viz: that the restoration of such of the estates of the refugees as have been confiscated, is impracticable, because they were confiscated by laws of particular states, and in many instances have passed by legal titles through several hands. besides, sir, as this is a matter evidently appertaining to the internal policy of the separate states, the congress, by the nature of our constitution, have no authority to interfere with it. as to your demand of compensation to those persons, we forbear enumerating our reasons for thinking it ill-founded. in the moment of conciliatory overtures, it would not be proper to call certain scenes into view, over which a variety of considerations should induce both parties at present to draw a veil. permit us, therefore, only to repeat, that we cannot stipulate for such compensation, unless on your part it be agreed to make restitution to our citizens for the heavy losses they have sustained by the unnecessary destruction of private property. we have already agreed to an amnesty more extensive than justice required, and full as extensive as humanity would demand; we can therefore, only repeat, that it cannot be extended further. we should be sorry, if the absolute impossibility of our complying further with your propositions, should induce great britain to continue the war, for the sake of those who caused and prolonged it; but, if that should be the case, we hope that the utmost latitude will not be again given to its rigors. whatever may be the issue of this negotiation, be assured, sir, that we shall always acknowledge the liberal, manly, and candid manner, in which you have conducted it." in consequence of information from our commissioners that the claim was made and pertinaciously insisted on by the british minister, congress passed the following resolutions, viz: "_resolved_, that the secretary for foreign affairs be, and he is hereby, directed to obtain, as speedily as possible, authentic returns of the slaves and other property which have been carried off or destroyed in the course of the war by the enemy, and to transmit the same to the ministers plenipotentiary for negotiating peace. "_resolved_, that, in the mean time, the secretary for foreign affairs inform the said minister, that many thousands of slaves, and other property to a very great amount, have been carried off or destroyed by the enemy, and that, in the opinion of congress, the great loss of property which the citizens of the united states have sustained by the enemy, will be considered by the several states as an insuperable bar to their making restitution or indemnification to the former owners of property which has been or may be forfeited to, or confiscated by, any of the states." dr. franklin, in a letter to the british minister, says: "i must repeat my opinion, that it is best for you to drop all mention of the refugees. we have proposed, indeed, nothing but what we think best for you as well as ourselves. but if you will have them mentioned, let it be in an article which may provide that they shall exhibit accounts of their losses to commissioners hereafter to be appointed, who shall examine the same, together with the accounts now preparing in america of the damages done by them, and state the account; and that if a balance appears in their favor, it shall be paid by us to you, and by you divided among them, as you shall think proper. and if the balance is found due to us, it shall be paid by you. give me leave, however, to advise you to prevent so dreadful a discussion, by dropping the article, that we may write to america and stop the inquiry." the following article was accordingly drawn up and proposed to be inserted in the treaty, viz: "it is agreed that his britannic majesty will earnestly recommend it to his parliament to provide for and make compensation to the merchants and shopkeepers of boston, whose goods and merchandise were seized and taken out of the stores, warehouses, and shops, by order of general gage, and others of his commanders or officers there; and also the inhabitants of philadelphia, for the goods taken away by his army there; and to make compensation also for the tobacco, rice, indigo, negroes, &c., seized and carried off by his armies under generals arnold, cornwallis, and others, from the states of virginia, north and south carolina, and georgia: and also for all vessels and cargoes belonging to the inhabitants of the said united states, which were stopped, seized, or taken, either in the ports or on the seas, by his governors, or by his ships of war, before the declaration of war against the said states. and it is further agreed that his britannic majesty will also earnestly recommend it to his parliament to make compensation for all the towns, villages, and farms, burnt and destroyed by his troops or adherents in the said united states." after pressing the matter to the utmost extent, we find, by mr. adams's journal, that on the evening previous to signing the treaty, ministers on both sides came to the following result: "upon this i recounted the history of gen. gage's agreement with the inhabitants of boston, that they should remove their effects, upon condition that they would surrender their arms; but as soon as the arms were secured, the goods were forbid to be carried out, and were finally carried off in large quantities to halifax. dr. franklin mentioned the case of philadelphia, and the carrying off effects there, even his own library. mr. jay mentioned several other things; and mr. laurens added the plunder in carolina, of negroes, plate, &c. after hearing all this, mr. fitzherbert, mr. oswald, and mr. stachey, retired for some time, and returning mr. fitzherbert said, that upon consulting together, and weighing every thing as maturely as possible, mr. stachey and himself had determined to advise mr. oswald to strike with us according to the terms we had proposed, as to our ultimatum respecting the fishery, and the loyalists. accordingly we all sat down, read over the whole treaty and corrected it, and agreed to meet to-morrow at o.'s house, to sign and seal the treaties." will any candid man say, after reviewing these circumstances, that the th article was meant to secure the restitution of negroes and other property taken in the course of the war? if that had been meant, would it not have been improper to have urged it as an argument against the introduction of an article which would have subjected this country to immense embarrassment and expense? it is true that the united states did challenge negroes and other property, which had fallen into the hands of the british previous to signing the treaty. this circumstance, for the reason he had mentioned, and others that might be suggested, ought to have very little weight, for it is well known that recrimination of a violation of the treaty soon commenced on both sides, and each mustered up every tolerable claim; many of which have since been admitted on both sides to be groundless. a circumstance which strongly corroborated what he said was, sir guy carlton's letter on that subject had also been so grossly misunderstood and misrepresented, from that time to this, and now advanced by a gentleman on this floor, (mr. giles,) and even by mr. jefferson--in this instance departing from that candor which is so conspicuous in almost every other part of this excellent performance--for, when speaking on this subject, he says, "here there was a direct, unequivocal, and avowed violation of this part of the th article, in the first moment of its being known." mr. jefferson has given us a copy of sir guy carlton's letter to general washington, which is relied on to support this assertion, which is so far from speaking such a language, that in his opinion, it was directly the reverse, and that in a very pointed manner. his words are: "i must confess, that the mere supposition that the king's minister could deliberately stipulate in a treaty an engagement to be guilty of a notorious breach of the public faith towards people of any complexion, seems to denote a less friendly disposition than i could wish, and i think less friendly than we might expect. after all, i only give my own opinion. every negro's name is registered, the master he formerly belonged to, with such other circumstances as serve to denote his value, that it may be adjusted by compensation, if that was really the intention and meaning of the treaty. restoration was inseparable from a breach of public faith, and is, as i think all the world must allow, utterly impracticable." gen. washington, at that time, seemed disinclined to give an opinion on that subject, but intimated the propriety of leaving any doubtful clause of the treaty to be settled by future negotiation; for in a letter from him to our commissioners in new york, dated june, , who had written to him for particular and pointed instructions on this very subject, there is this passage: "it is exceeding difficult for me, not being a witness to the particular cases, or acquainted with the particular circumstances which must fall under your view in the course of the evacuation, to give you a precise definition of the acts which you are to represent as infractions of the treaty; nor can i undertake to give an official construction of any particular expression or terms of the treaty, which must, in cases of ambiguity or different interpretations, be explained by the sovereignties of the two nations, or their commissioners appointed for that purpose." a letter drawn up with great caution and extremely characteristic of that great man, who has always been extremely careful never to commit himself, but upon mature deliberation and upon sure ground. here, sir guy carlton, as a public officer of great britain, had made an explicit declaration on the subject, and that was directly against our claims; for his directing an inventory of the negroes, was only an evidence of his being disposed to conduct candidly in the matter, and give us an opportunity to recover a compensation, if we could afterwards make out our construction of the treaty to be right. both in the united states and great britain it is admitted, as a sound rule of construction, that where any law or instrument is doubtful, and the liberty of any one, even of a slave, to be affected by it, that construction was to be preferred which was favorable to liberty. under this rule, ought this treaty to be so construed as to reduce to slavery three thousand persons who had obtained their liberty, by putting themselves under the protection of the british arms, unless there was some positive unequivocal stipulation in the treaty which could admit of no other construction, he hoped, for the honor of america, they would make no such challenge. there was another circumstance which he had never seen mentioned, which, in his opinion, greatly weakened our claims, which was the doubts he entertained of our right to demand of a foreign nation the restitution of a runaway slave. the united states are now at peace with all the world; suppose a slave should escape into the dominions of a foreign nation, and on demand they should refuse to deliver him up? he very much doubted whether we should have just ground of complaint. on the other hand, if any of our citizens may be so unfortunate as to be reduced to slavery by any of the barbary powers in africa, should make their escape into the dominions of any of the european nations, and upon being claimed by such powers, should be delivered up, he did believe we should have good ground of complaint against such nation, as being unjust and inhumane. and, so far as principle is concerned, what difference does it make whether the citizens of the united states are carried into slavery in africa, or the inhabitants of africa are brought into slavery in the united states? he knew of no principle that made a difference between the natural rights of a white or black man. the first principle that is laid down in the rights of man, is, that all men are born free and equal; it does not say all _white_ men. he did not believe, he said, that the house would ever admit so absurd a doctrine, as that the different shades in a man's complexion would increase or diminish his natural rights. he hoped no gentleman would take any exception to what he had said on this point; he did not mean to give offence, or to throw any reflection on any part of the union, on account of their having a larger proportion of slaves. it was an evil which existed at the commencement of our revolution, and he trusted every part of the union would get rid of the evil as soon as it should be practicable and safe. what he had said, was only what he felt himself bound to do in justification of our minister for his having given up that claim. mr. hillhouse requested gentlemen to pause a moment, and reflect what will be our situation if this treaty is rejected. the peace of is agreed on both sides to have been infracted, since that great britain has committed depredations on our commerce to an immense amount. is it supposed that all this matter can go off without any noise or combustion? as to treating again, no one can suppose that we could do it to any advantage, after such rejection. what may great britain expect, if we will not settle our differences by negotiation? will she not expect that we shall resort to more violent measures--such as reprisal, sequestration, or stopping of intercourse? and to guard herself against such measures, may we not expect she will lay her hand upon all our property on the ocean? he said he looked upon such events as the natural consequences of our rejecting the treaty. what may we expect will be the conduct of our own citizens? will they tamely submit to be robbed of their property, when they lose all hope of aid or protection from the government? they will not; they will defend it even to the shedding of blood; and not only so, but they will also take every opportunity they have to make reprisal for the property they have already lost upon those who did them the injury, whether they belong to one nation or another. what, he asked, could be the end of all these things but war? wednesday, april . _treaty with great britain._ the house then resolved itself into a committee of the whole on the state of the union, and the resolution for carrying the british treaty into effect, being under consideration, mr. page said, that he had heard no arguments in favor of the resolution before the committee, but such as might be used to influence a vote at any other time, and upon almost any occasion; for we are told that war, or popular discontent, and great inconvenience and distress to merchants, underwriters, and others, will be the consequence of its rejection. if such threats can influence this house upon the present occasion, an unhappy and mortifying comparison may be made between the congress of , and that of the present day. they despised and encountered the dangers of war actually commenced. he wished, when members were disposed to mention their fears of such dangers, they would first clear the galleries; for such communications ought to be secret. did members really believe that great britain will declare war against the united states, if this house should refuse to be accessary to the violation of the constitution, the destruction of their own rights, of the rights of neutral nations, and of the interests of their constituents? if they do believe this, is their belief founded on conjecture alone, or on the negotiator's declaration, that the british ministers threatened him with war, declaring that war should be the consequence of a rejection of the treaty? if the latter be the case, and nothing less can justify such repeated assertion that war will be the consequence of a refusal to carry the treaty into effect, the treaty ought to be deemed null and void on account of that threat; and if the former, they may be assured that they are mistaken, and that britain is not so frantic as to engage in a war with the united states upon such slight grounds. the citizens of the united states wish not to be at war with the british nation; nor can the people of britain desire a war with them. both must wish for peace, and a full commercial intercourse upon liberal terms; and as the executive authority of both countries are well disposed to each other, and have, as far as in their power, carried the treaty into execution, what reason can be assigned why we should be involved in a war? it has been said that the united states will be obliged to declare war, on account of the british refusal (which may be expected) to deliver up the posts, and to make compensation for spoliations of our commerce; but i see no necessity for such conduct. for my part, should britain never give up the posts, i would not vote for war, nor be at the expense of a single regiment to take them; nor would i go to war to recover losses sustained by spoliations. for, if we reject the resolution before you, sir, we may be at liberty to pass such a bill as we i passed in the year , by a majority of twenty-four members, and for which thirteen senators then voted; and should the senate concur with us in passing it, we might use it more effectually than a declaration of war for the recovery of the posts, and reparation of wrongs. as to war, as my colleague yesterday said, i have reason to deprecate it, for the sake of my constituents, and for my own sake; for i have experienced enough of its evils; but i cannot think that i ought to sacrifice their dearest interests merely from an apprehension of the dangers of war. the arguments, therefore, which i have heard, cannot induce me to vote for the resolution before you. indeed, sir, i must vote against it; because i think that the treaty is unconstitutional and pernicious; and even if it were constitutional in every respect, and as advantageous to the united states as it has been represented, i should think it impolitic and dishonorable in this house to lend its aid to carry it into effect during the present war, and a continuance of the british depredations on our commerce, and impressment of our seamen. the treaty appears to me unconstitutional, because it takes from congress that very power with which it was invested by the constitution, and to invest them with which, the constitution itself was expressly formed; a power which i think should be held as precious and unalienable. i mean the power of regulating the commerce of the united states with great britain; so as to induce her to fulfil all the conditions of the treaty of peace, and to put the trade of the united states with her upon a footing of reciprocity. it appears also unconstitutional, because it violates a solemn act of congress passed in conformity to the express words, and i may say, in obedience to the injunction of the spirit of the constitution: i mean the act for establishing a uniform rule of naturalization, and this violation, too, operates partially, and in favor of british subjects alone. it is moreover unconstitutional, because it interferes with the authority of the judiciary, by establishing a court of commissioners, a kind of supreme court of appeals, within the united states, with powers to proceed, unknown to our laws; with temptations to defendants to make no defence; with a right to bind the united states to pay debts which they owe not, and to any extent or amount which that court may think fit to decree; and it is unconstitutional, because it authorizes the president to create certain offices, and annex salaries thereto. in these instances, at least, i think the treaty unconstitutional; for i think that congress cannot authorize the president to do away the power of congress or to establish a court of appeals superior to the federal supreme court; that, whatever would be unconstitutional, if done by congress, cannot be constitutional if done by the president and british king. but, sir, if the treaty were not unconstitutional, that is, if the president and senate had a right to deprive congress of the power it claims, and to interfere with the judiciary, yet the exercise of that right in the present case, ought to be viewed as so pernicious to the united states as to render the treaty null and void; or, at least, it ought to be viewed as an argument of sufficient weight to induce this house to refuse their aid towards carrying this treaty into operation. and were it even constitutional and advantageous to the united states in every article, yet, as it acquiesces in a violation of the rights of neutral nations in favor of great britain, and in some instances, to such a degree as to be thought even by the president himself, to afford just ground for discontent on the part of our allies, it will be dishonorable and highly impolitic in this house to be in any manner instrumental in carrying it into effect. as it has not been in the power of the united states to assist their republican allies, when fighting in fact their battles, the least they can do, or the least that the world and those allies can expect from them, must be, that they will not put the enemies of those allies into a better condition than they were by making treaties with them during the present war. mr. findlay said he should not think it necessary to resume any of the arguments relative to a principle which had already been settled in that house; yet, he observed, that every gentleman who spoke on the subject seemed to argue what were the rights of that body upon the subject of treaties, as if no question had already been had on the occasion. it had been insisted upon, notwithstanding the decision which had been had, that a treaty was a law when it came before that house, and they had no power but to appropriate to carry it into effect. he said this opinion was directly contrary to the opinion held on the constitution at the time it was accepted in pennsylvania. moral discretion, he said, was necessary to be exercised in every decision of that house, except the constitution had prescribed to them some positive rule of action. in ratifying the constitution in the state of pennsylvania, this was the understanding of it. the minority in the convention did not wish so much power placed in the executive, and he appealed to gentlemen in that convention, if this was not the doctrine asserted by the majority in answer to the objections of the minority. indeed, if they were not to have exercised a moral obligation upon the treaties, the constitution would have expressly said so, as in the case of the president's salary, the pay of the judges, army appropriations, &c. if they had not been limited in these articles by the constitution, they certainly would have had the power to have changed them if they had thought proper. but, passing over this consideration, there had been pretty large views taken of the manner in which the treaty came before them. the gentlemen from new york and virginia had entered into the subject. he must beg leave to differ from the gentleman from new york as to the matter of fact relative to that house in the concerns of government two years ago. he had no apprehensions at the time the envoy was sent to britain to negotiate a treaty, that britain would have commenced a war if that measure had not been adopted; so far from it, that a majority of that house thought differently. he had no doubt that war, and the destruction of liberty altogether, had been meditated by great britain; but before the negotiation was commenced, circumstances occurred which caused her to give up this extravagant design. before the negotiator was appointed, it is well known that the plundering order of the th november was revoked. the gentleman from virginia (mr. giles) had given a very good narrative of events in europe, which fully showed the cause of this change of conduct. that gentleman had also gone through the treaty, article by article, in a manner so much to his satisfaction, that he should not attempt to follow him. before the negotiation took place, we had suffered considerably by british spoliations, and that house thought of various means to make it the interest of that power not to continue their depredations. first one plan was proposed and then another. it need not be mentioned that amongst these was the plan of sequestration, the future power of doing which this treaty proposed to deprive them of. it was discussed in the house, but no question taken on it, to show that negotiation was not thought necessary. he mentioned a conversation which had taken place betwixt a gentleman then in the cabinet (now no more) and himself, which confirmed his opinion of the propriety of the measures. a bill for regulating commerce in such a manner as to make it the interest of britain to refrain from injuring us, and redress the wrongs we had suffered by spoliations, was agreed to by the house, but negatived in the senate. so far from being then afraid of war, they were more and more convinced that it was in their power to make it the interest of britain to refrain from their acts of violence towards us. mr. moore.--mr. chairman, i rise with diffidence to give my sentiments on so important a question as that now before you, especially as i have been preceded by gentlemen whose superior abilities have enabled them to investigate the subject with more accuracy than i am capable of. i consider the object as important of itself. it is rendered more so by the warmth with which it has been discussed--the irritation it has produced, both in this house and on the public mind. i lament that improper motives should be imputed to gentlemen on either side. i am disposed to believe, that gentlemen aim at doing what will best promote the public interest. i entertain no suspicion of designs against the government by any member of this house, or any branch of the government. gentlemen have predicted a war and dissolution of the government, if provision is not made for carrying the treaty into effect. i have no apprehensions of either. it is highly improper to attempt to influence the votes of members by such declarations. i hope gentlemen will believe that members who differ from them in opinion, are equally zealous with themselves in discharging their duty, and have firmness enough to repel every attempt to intimidate. for myself, i have equal confidence in every part of the union, that they have no wish to dissolve it. the suggestion is unfounded, and ought not to be made. mr. chairman, the vote which i shall give on the question before us, will, in some degree, be influenced by a constitutional principle, which i consider as involved in the decision. on the resolution calling for the instructions given to mr. jay, and other papers relative to the treaty, it was insisted on by members of this house, that the executive has a right, by treaty, to supersede all legislative powers vested in congress by the constitution. the executive gives the same construction to the constitution. if, under these circumstances, i vote for the resolution before you, i consider myself as admitting, as recognizing the principle contended for. this i cannot do. on the admission, or rejection of this principle, i am of opinion, the future course, the future operations of government materially depend. by this it will be decided, whether it is wholly executive or not: whether this house depends on the courtesy of the executive for their right to interfere in legislation. it has been argued, that this extensive, unlimited power, was necessarily vested in the executive, subject only to the control of the senate. in order to support the sovereignty and independence of the small states, i do conceive that a branch of the legislature in which the states are equally represented, was all that could be claimed. can it be conceived to be necessary, just, or proper, that the regulation of all the important interests of the union should be at the disposal of the executive? can gentlemen seriously believe that the citizens of the united states, who opposed, at so great an expense of blood and treasure, the claim of great britain to tax us unrepresented, would admit all their interest to be represented by so unequal a representation as that contended for? it has been asked, is not the senate as worthy of the confidence of the citizens of the united states as this house? i will ask, are they more? this legislative power is restrained and checked by the constitution; particular modes and restrictions are prescribed, but no checks are imposed on the executive. were the people jealous of this house, and not of the other branches? did they suspect the legislature of doing wrong? when this house was connected with the other branches, were they to regulate their interests; and have they reposed unlimited confidence in the other branches when acting without this? did they consider this house as the only branch from which any danger was to be apprehended? it is impossible, yet this must have been the fact, if the construction given to the constitution is a just one. a gentleman from connecticut has said, that gentlemen had prejudged the treaty; they come forward with prejudices against it, determined to vote against it. it is not so with me. i was strongly inclined to vote for it; to make some degree of sacrifice rather than defeat it. gentlemen, on reflection, must be convinced that the question has not been prejudged. the envoy was appointed at the moment when this house was deliberating on means for preventing further spoliations on our commerce. commercial regulations were proposed, and other means from which they might have been forced to abandon their unjust and oppressive system. i remember well the arguments then used were convincing to my mind; that those were the only weapons of defence within our power; that they would be effectual. but these were arrested by the despatch of an envoy extraordinary. some of the leading features of the treaty were then predicted; the event has corresponded with those predictions. principles were then discussed, which the treaty contains, before the negotiator was appointed. this shows there was no prejudging in the manner gentlemen have stated. by this treaty all the measures then contemplated by the legislature are arrested; an eternal veto is imposed against our ever carrying the measures then contemplated into effect. this shows that the executive claims not only the constitutional right of forcing this house to pass what laws they please, but also, by treaty, to declare what they shall not do. we have passed a resolution, which is now on your files, declarative of the sense of this house as to their constitutional rights. the question is, however, undecided. the executive and senate will proceed to act on their own construction. they may, on their own construction, make a treaty, which will imply a still more imperious and commanding necessity to provide for its execution, than even the present case. this necessity may force a relinquishment of the right contended for by this house. it may force an acquiescence in the executive regulating all the interests of the union. i believe it was not the sense of the framers of the constitution. it is not the sense of the people who adopted it. it never can be mine. the merits of the treaty have been ably and accurately discussed. i will make but a few remarks on it. i must disagree with the gentleman from connecticut, who mentioned, as a well-known principle in judging of treaties, that all property, (by fair construction, and by the established law of nations,) if not excepted particularly in a treaty, remains in the same state in which it was found when the treaty was made. those in possession retain the possession. from this he has concluded, that negroes, taken during the war, had become the property of the captors, or rather, were emancipated. the words of the treaty of peace are, "negroes and other property." this plainly shows, in his opinion, that, by negroes, was not meant those taken during the war; they were not american property. the property was changed. it could only be intended, such negroes as were taken after the peace. i will ask, was it ever known in a treaty, that a stipulation was made to give up property plundered after the peace? is it not an established principle amongst all civilized nations, that plundered property shall be given up? is it necessary, or was it ever thought so, to make it a stipulation by treaty? i believe, if his construction is a just one, it is a new case, the provision was at least nugatory. but if the principle he lays down is a just one, how does it happen that debts due to british subjects, paid by the debtors into the treasury under the sanction of a law, and appropriated to the use of the state, are now recoverable by the british creditor? an important case of this kind has been decided in the federal court, and judgment given for the british creditor. was the property less changed by the law of a sovereign and independent state, than by the proclamation of a british commander? this cannot be. the fact is, however, that in two cases, found in the same instrument, there are claims founded on the same principle; the one, a british claim, is established, the other, a claim of the united states, is rejected. this involves in it an absurdity. by those opposed modes of construction, an important claim of the citizens of the united states is given up by the treaty, a claim against them to a great amount is established. the claim as against us is admitted; our claim is rejected, in cases where the same principle fairly applies, and where, by gentlemen's own showing, there is no dissimilarity which can justify such opposite constructions. there is another provision of the treaty, by which an important interest has been sacrificed. british subjects held lands within the united states before the war; many of those claims were barred; the claimant being an alien could not recover; his being an alien was the only bar. it was effectual--such has been the decision of the courts. but by the treaty, being aliens shall not bar the claim of british subjects--thus, many of the extensive claims are restored. in some of the states more than half their territory will be revested in proprietors. what could induce this grant? what equivalent do we receive for this sacrifice? sir, i am constrained to think the treaty a bad one, in those instances i have mentioned, more so than in any others. and when i connect with the treaty itself the important constitutional question which has been discussed, i cannot vote for the resolution before you. mr. kittera.--since the th of july, , the councils of america have not been agitated by so momentous a question as that at present before the committee. at the period to which i allude, the question was, whether we should tamely submit to an abject and disgraceful slavery, with all its concomitant evils, or, by a declaration of independence, an exertion of our internal strength, with the advantages of foreign aid, make a bold and manly effort to obtain the blessings of freedom--the solid rewards of well-earned liberty. the present question is, whether we shall supply the means of carrying into execution a treaty of commerce and amity with a powerful nation, entered into by a minister of the united states, and solemnly ratified by the authorities constituted by the people for such purposes; or, by refusing, perhaps unconstitutionally refusing those means, hazard the peace, interrupt the prosperity, and tarnish the honor of the country? in a question of such magnitude, prudence calls me to pause, duty to reflect. my country's faith is plighted, a solemn contract is made; it would therefore be unwise and impolitic, as it concerns the interest, and dishonorable, as it regards the character, of this nation, in the infancy of its existence, to violate so solemn a contract. two causes have contributed much to prejudice the american mind against the treaty. st. an enthusiasm for france, struggling in the cause of liberty, against the combined monarchs of europe, in which combination, the very power with whom the treaty was made, formed a prominent part. dly. strong resentment against britain, for injuries received during a tedious and cruel war, and those injuries renewed by a detention of our western posts, exciting and aiding the savage indian tribes in the commission of hostilities on our frontiers, with strong indication of a design to contract our boundaries, and their lawless depredations on our commerce. i will not add, that there are amongst us some irreconcilable enemies to this government, who opposed its adoption, predicted its downfall, and whose pride and political consequence are suspended on the fulfilment of this prediction. for the honor of human nature, and for the character of my country, i hope there are few to answer this description; if, however, there are any, the poet's execration is to them peculiarly applicable: "cursed be the man who owes his greatness to his country's ruin?" there are some things in which the candid part of those who hear me will not disagree. st. that our envoy was a wise and honest man; he was a tried patriot, skilled in diplomatic life, and rendered to his country important services during the late war. the tale of his receiving british gold was made for children and fools, and need only to be told, to be disbelieved. dly. he made the best bargain he could. i will not mention, in proof of this, the ratification of the contract, eight months afterwards, by the president, (in whom this country has certainly an unbounded confidence,) with the advice of two-thirds of the senate; but i have proof positive. the letter of mr. pinckney, our minister resident at london, and conversant with every part of the negotiation, in strong and decided terms advises mr. jay to accept the contract as the best that could be procured, and as one that would promote the interests of this country. dly. if negotiations had been unsuccessful; if the treaty, on the terms offered, had been rejected, war must have ensued. our national honor would have forbidden a tame submission under so many insults and injuries; such submission would have invited new insults, and our own safety would have made resistance and retaliation necessary. the treaty naturally presents itself under two general heads: st. such parts of it as are permanent, to wit, the first ten articles. dly. such parts of it as are temporary, to continue for two years after the expiration of the war in which great britain is now engaged. three great points are embraced under the first arrangement: a surrender of our western posts, compensation for the spoliations committed on our commerce, and the payment of british debts. however lightly my colleague from the western part of pennsylvania (mr. findlay) spoke yesterday of the western posts, i consider the acquisition as an important treasure to this country. it will not only increase the value of our western lands, and open to us a new source of commerce, but it will relieve us from the expense and horrors of an indian war. those were the sentiments of the gentleman himself, on this floor, two years ago. the spoliation on our commerce has generally been estimated at five millions of dollars. on a rejection of the treaty, i wish the gentlemen in the opposition to point out how the american merchants are to be reimbursed for their loss. nothing can be expected from new negotiations. it would be a solemn mockery of justice to the claim of those citizens. payment out of the treasury has been talked of, and a resolution to that effect is now on your table. this can never be done. it would be without a precedent, and congress has heretofore refused the claim. and how can you discriminate such claims from those rising from savage depredations on your frontier settlers? the protection of the government was, at least, as much due to the peaceable farmer as the speculating merchant; and if losses have arisen for want of such protection, compensation is as justly due in the one case as in the other. but why are we to subject the government to this payment, or our citizens to this loss, when compensation is offered by the nation that has done the wrong? as to british debts, the committee have had various calculations of their amount. i believe some of the estimates have been exceedingly exaggerated. if they are even half the enormous sum that has been stated on the other side, we have not much difficulty in accounting for the extraordinary opposition to the administration of this government that has appeared in a certain quarter of the union. whatever may be the amount, the nation is bound by the strongest ties of justice and national honor to secure the payment. mr. holland said, he would submit some considerations to the committee, that, together with those which had been given, would influence his vote upon the resolution on the table; a subject, as had been said by all who advocated the resolution, of the first importance--an issue on which depended peace or war. he said, he considered the question of some importance, particularly as it related to their constitutional powers; but the conceptions of gentlemen had exaggerated the result of the present question. it was nothing more or less than, would they or would they not now appropriate moneys to carry the british treaty into effect? he said, he had ever felt a disposition to that purpose; not because the faith of the nation, as had often been said, was pledged; not because they were under moral obligations, as had been contended for--neither of which he could admit; but because a respect was due to the negotiator, to the senate who advised, and to the president who ratified it; for, it was to be presumed, until the contrary appeared, that they exercised their judgments for the good of the nation. but it was possible the means they have adopted may not produce the end intended; they may have been mistaken. when he first examined the instrument, he was in hopes that there was something extrinsic existing, which, when communicated to him, would do away the exceptions on the face of the instrument, and therefore he was silent and suspended his judgment. it was for that purpose he had voted for the papers relative to the negotiation to be laid on the table, in hopes of obtaining further information, previous to his being called upon to carry it into effect. but, unfortunately for him, no further information was to be obtained. the useful papers, an innocent and humble request, were not granted. he was not possessed of any other information than could be drawn from the instrument, from the writers on that subject, and the arguments that had been advanced by the gentlemen who had advocated the resolution; to the whole of which he had with candor attended, and with regret informed the committee, that nothing had been advanced, that had convinced him of the reason, propriety, necessity, or fitness, of the stipulations contained in the instrument. those gentlemen, instead of reasoning, have endeavored to alarm. they have said that, if we do not carry this treaty into effect, that we shall be plunged in a war; that britain is a proud and haughty nation; that they will lay their hands upon all our property, &c. this was an address to our fears and not our reason, and were our fears once on the wreck, there is no knowing the result, or where we should land. but, in this instance, we would not be governed by panic, or dread of the power of that haughty nation, as they had been called; but as the representative of a free and independent nation, he felt himself perfectly at liberty to exercise his reason in the most cool and deliberate manner. not apprehending any danger, the time has been, and now is, that we are perfectly secure in asserting our equal and reciprocal rights with that nation. we have done it in a state of infancy and inexperience, at a time much more unfavorable, taking each side of the question into view, than the present. and shall we now hesitate, and tamely suffer them to dictate to us? and are we bound to accept the treaty, lest they should be offended and treat us with contempt for not accepting, as it is said, a more favorable offer than they have given to other nations? are we not the sole judges; have we not a right to determine for ourselves? and as this is a mere naked stipulation, they can receive no damage, nor, on this early notice, can they charge with deception, or have any right to complain. one thing is certain; so long as great britain finds it for her interest to be pacific, she will adopt measures calculated to preserve peace; but when interest dictates the contrary, her invention will not seek a pretext for a different conduct. the history of that nation gives abundant proof of this. mr. swanwick objected that his colleague (mr. kittera) had charged him with a want of candor. he was liable to mistake, he said, equally with any other man; but he trusted he should not be charged with knowingly misstating any thing with respect to the east india trade; he had reserved to himself a future opportunity of speaking on that subject, which, however, the length of debate seemed likely to prevent. he had said that the american vessels were permitted to trade to the east indies as all other nations were, but that they were obliged to land their goods in the united states, whilst the danes, swedes, &c., could go there and carry the goods which they purchased from thence to any part of the world, except to the british dominions; and that was the situation of america antecedent to the present treaty. a ship of his, some time ago, earned a good freight from bengal to ostend, and another he knew had lately made one to hamburg; but, by the treaty before the house, whatever advantages might be made by going to a foreign port their vessels were deprived of, and must return direct to the ports of the united states. these, he said, were stipulations which no other nation lay under; and though, perhaps, no nation had special leave stipulated by treaty to go there, yet they all, nevertheless, did go, and never met with any opposition. friday, april . _execution of british treaty._ after the presentation of several petitions on this subject, the house resolved itself into a committee of the whole on the state of the union, when the resolution for carrying into effect the british treaty being under consideration-- mr. coit said, that the importance of the resolution before the committee would preclude all necessity of analogy for any member's asking their attention to his observations. he should only add to it, that he should endeavor not to repeat what had been already said. he observed, that the discussion of the merits of the treaty came before the committee under peculiar disadvantages, for, besides the prejudices against it that might be supposed to have been caused by extraneous circumstances, the agitation of the important constitutional question relative to the right of the legislature to concur in giving validity to this treaty, which was claimed to be valid and complete without that concurrence, and the refusal of a call for papers had very naturally a tendency to give a bias to the minds of some gentlemen against the treaty; for himself, he was fully satisfied the legislature had no constitutional connection with the business of making treaties. mr. c. said he should attempt to run through the objections which had been made to the treaty, and consider its merits independently of the peculiar circumstances under which it was now presented to the committee, and then give his own view of it as relative to those peculiar circumstances. the objects of the negotiation, he said, very naturally were divided into three parts--the inexecution of the treaty of ; mutual complaints between the united states and great britain relative to transactions independent of the treaty; and arrangements for the intercourse between the two nations, commercial and political. but as gentlemen had made their objections generally in the order in which the several articles of the treaty had been arranged, he should follow the same order in his observations in answer to them. the first objection which had been made was, that no compensation had been stipulated to the united states for the supposed breach of the treaty of , in carrying off the negroes. this objection, he had supposed, was so completely answered by his colleague, (mr. hillhouse,) who had been up the day before, that he should not have added on that head, but that he had since found gentlemen still insisting on that objection. he was particularly surprised to hear the gentleman from pennsylvania (mr. findlay) stating that he conceived the negro article to have been put into the treaty expressly as a compensation or set-off for the engagement to pay the british debts. this pretension, he thought, had been fully refuted by the extract from mr. adams's journal, quoted by mr. jefferson in his correspondence with mr. hamilton, and which had been read by his colleague. from that extract, it appeared that a claim for negroes and other property which had been plundered, carried off, and destroyed by the british, was made by our commissioners, as a set-off against a claim made by the british commissioners for restoration of confiscated estates; and that the one of those claims was abandoned with the other. had the gentleman from pennsylvania taken the pains to examine the journal of mr. adams, which might be seen by any member of the committee at the office of the secretary of state, he would have found how the article came to be inserted. before the _signing of the treaties_ with which the extract made by mr. jefferson is closed, stands in the original the history of this article in these words: "mr. laurens said, there ought to be a stipulation that the british troops should carry off no negroes or other property; we all agreed. mr. oswald consented, and _then the treaties were signed_," _&c._ this, mr. coit said, was all the mention he could find respecting this article, except in a subsequent part of the same letter, in which mr. adams observes: "i was very happy that mr. l. came in, although it was the last day of the conferences, and wish he could have been sooner. his apprehension, notwithstanding his deplorable affliction under the recent loss of so excellent a son, is as quick, his judgment as sound, and his heart as firm as ever. he had an opportunity of examining the whole, and judging and approving; and the article which he caused to be inserted at the very last, that no property should be carried off, which would most probably, in the multiplicity and hurry of affairs, have escaped us, was worth a longer journey, if that had been all, but his name and weight is added, which is of much greater consequence." from these extracts, it appeared, the article was not a subject of negotiation, but inserted at the close of the transaction, without discussion, as a matter of course, and which mr. adams supposes might, in the multiplicity and hurry of affairs, have been omitted, if mr. laurens had not suggested it. mr. c. said, he would candidly acknowledge that it was very extraordinary to him, that the construction which had been generally put on the article in america, should have so universally prevailed, if it was not the true one, that congress should have adopted it; and that such should have been the idea of the commissioners appointed to superintend the embarkation at new york, in the year . still more extraordinary was it to him, to find mr. jay himself, when secretary for foreign affairs, in the year , in a report he then made to congress on the subject, considering the carrying off of those negroes as a violation of the treaty, and saying further, that he understood from mr. adams, then at the court of london, that the british minister had no objections to making compensation for them. still he believed, the true construction of the article was, that it was designed only to prevent plunder by the british troops, and carrying off of american property, according to the ordinary agreements in treaties, which stipulate for the giving up of conquered countries. true, it might be asked, why say negroes or other property? the expression, he agreed, was not correct, unless a doubt might have been entertained whether negroes were property; but the word negroes must be qualified by other property, with which it is connected, and could operate only as if it had said horses or other property, which no person would contend amounted to a stipulation not to carry off what had once been, but by the laws of war and nations, before the close of the war, had ceased to be the property of american inhabitants. four gentlemen from virginia had insisted on this objection, and not one of them had deigned to remark on the construction of the article itself. they had all relied upon the common understanding of it. that this understanding could not change the sense of the article, if it was not doubtful, could not be denied. their leaving the article and resorting to the common understanding of it, he conceived to be a tacit acknowledgment of the gentlemen, that the instrument itself would not bear the construction they wished to give it. whether the negotiator had urged this construction of the article, and found he could not obtain its admission, or even an arbitration upon it, he did not know; from his opinion of the good sense and understanding of mr. jay, however, he was for himself satisfied that, whatever might have been his former opinions, on attending to the subject, he had found what had been called the american construction was not the just one, and had therefore abandoned it. mr. c. said, he was aware that the construction he contended for had been called the british construction, and _camillus's_ construction; that he had himself, however, adopted more than two years ago, the first time he had paid any attention to the article, upon no other impulse or authority than his own judgment, on the perusal of it, and even before he had ever heard of any other construction of it than that he contended against, he was aware that there was a kind of patriotism which claimed every thing for one's country, whether consistently with truth, justice, and candor, or not; for himself, he had no pretensions to such patriotism. he believed mr. jay had none, and if he was convinced that the american construction of this article was unfounded, he thought it for his honor, and the honor of this country, that he had abandoned it. when mr. coit had concluded-- mr. s. smith rose and said, the subject then before the committee appeared to him to be of an importance at least equal to the great constitutional question which agitated the house during the present session; it has had, and he trusted would continue to have, the same calm attention paid to its discussion. he hoped and expected that it would ultimately be determined with a view to the real interest of the nation, under the existing state of things. when the treaty was first published he had read it with attention, and although he had not seen all those faults with which it has since been charged, yet there was, to his view, so little good contained in it, and so much of evil to be apprehended from it, that he had felt a hope that the president would not have ratified it. he had been disappointed, yet he had not a doubt but the president, after the most mature consideration, had given his signature; being possessed, as he was, of every information relative to a subject so very important, he could better determine on the policy of its adoption than those who were less informed. still there were many articles, particularly the commercial, which every man might judge of from the face of the instrument. on these he did not hesitate to give an opinion: which was, that they promise not one solitary advantage, and shackle our commerce in many important points. he would not trouble the committee with going deeply into a subject that has already been so ably discussed. he, however, could not refrain from a few remarks on the right to countervail our extra duties on tonnage of goods imported in foreign bottoms. he asked what would this countervail be? could any man tell? it was not specified in the article; it was then discretionary with the british; discretionary with a nation whose rule of right has always been the measure of its power, whose conduct has invariably been to cramp and distress the commerce of all other nations. to such a nation was it proper to trust a latitude of that extent? will she make her countervail oppressive and unjust? it is more than probable she will, and if she should, what remedy have we? none: for we are forbidden by the same article to legislate further on the subject. he said he would take leave to explain the th article which relates to the east india trade, and which it has been said gives such solid advantage as to counterbalance all the evils arising out of the treaty. he had taken some pains to inform himself on this subject, and he had found that the americans, in common with all other nations, traded to the british and other ports of india, and were every where received with that sort of kindness which grows out of the interest that the vender has in selling his goods for ready money, and to a great profit; that our trade is so much the interest of the india company, and of all its officers and factors, as well as of the private traders residing there; that it was ridiculous to suppose the india company would prevent it; and, if they should, what would be the evil? little or none; for there were other ports, belonging either to other european powers or to the natives, in the neighborhood of all the english ports, who would receive us with open arms, and supply us for our silver, on terms equal, or nearly so. he then stated that our ships could now carry from one port in india to another, to china, or to europe; an employment that had been found very lucrative. under the treaty they must proceed with whatever they purchase in an english port direct to america. the article says, his majesty consents to your trade to india, and this is called a boon. it appeared to him just as ridiculous as if his majesty had said, he consented to our going to great britain to purchase its manufactures. to enumerate the many faults he found with the treaty, as well of omission as commission, would take up too much of their precious time; yet he trusted he should be excused for taking a short view of its leading features. when the envoy was sent to great britain, he was principally to demand restitution for the cruel depredations committed on our commerce. we find that object attended to so vaguely that our best-informed men seem doubtful whether much will ever be recovered under the treaty; they find that in every instance the loser must first pursue his remedy through their tedious and expensive courts. we find, that by fair construction, we have acknowledged ourselves to have been the infractors of the treaty of peace; for what was the ground on which some of the states placed legal impediments to the recovery of british debts? why, that lord dorchester had refused to deliver up or pay for the negroes which, by that treaty, ought to have been restored, and which slaves would have assisted their masters by their labor to pay those debts; yet we see no mention of them in the treaty; and we find, to our surprise, men, since this treaty, defending the construction lately put on the treaty of peace by the british, and which had never before been heard of; thus acquiescing in the charge of our being the first aggressors. but this only relates to our honor, and of course can be of little consequence to a nation whose rule of conduct is to submit to every thing, provided, that on the whole account, there appears to be a balance of profit in its favor. after having thus formed his opinion relative to the treaty, his next inquiry was, is the treaty constitutional? on that point he had held himself open to conviction, and waited its discussion. he had not heard any gentleman declare it unconstitutional, except one, (mr. page,) who seemed to give his opinion as if he still doubted; and having carefully considered the subject, he was now of opinion that there was nothing directly repugnant to the constitution in the instrument. he then inquired whether, under the existing state of things, the treaty ought to be rejected? whether it contained stipulations so extremely injurious to the united states as ought to induce the house of representatives to reject a compact made by the other branches of the government? in the ten first articles, which are permanent, he found some objections. the third article, which, like many others, cannot be well understood, seems to say that goods imported in british bottoms to the ports of the lakes, shall pay extra duty. if this be a true construction, it will then be necessary to repeal our restraining duties, to make the treaty by law consistent with the constitution, which requires that all duties shall be equal. the tenth article ties our hands against sequestration, a power which ought not to be exercised, except on some very extraordinary occasions; yet it was a power which, considering our relative situation to great britain, it was imprudent to part with; still, on fair consideration, he did not find that there was sufficient cause, on the account, to reject the treaty, in the situation we are now placed. the residue will expire in two or three years. tuesday, april . _execution of british treaty._ mr. dwight foster observed, that as the subject before the committee had been minutely discussed, it was not to be expected any new arguments, either on the one side or the other, would be adduced. hitherto, he had been silent--though silent, he had not been inattentive--he had listened with candor to every thing which had been offered; he had formed his opinion upon serious deliberation, and was ready to give it whenever the question should be taken. when the resolution requesting the president to lay before the house a copy of the instructions, correspondence, and other documents relative to this treaty, was under consideration, mr. f. observed, that he had intended to have expressed his sentiments on the subject; but the great length of time which was spent in that discussion, and the extreme impatience discovered by many members to have the question taken, induced him, as it might several others, to be content with expressing a silent vote, as he did with the minority, on that occasion. this he was the more willing to do, as it was then well known that the treaty itself would be before the house; that some appropriations would be requisite, on their part, to carry it into effect; and, it was not to be doubted but every gentleman who wished to express his opinion would have an opportunity. the time had now arrived, and several days had been spent already, he believed not unprofitably, in deliberating on an instrument which had been the cause of great agitation in the united states. he was heretofore one of those who considered the negotiation as advisable; it appeared to him the only means by which the horrors of war were to be avoided. he therefore rejoiced when the president appointed an envoy for the purpose of negotiation; nor did he yet find any reason to apprehend the measure was injudicious. far otherwise. he believed it was right, proper, and advisable; and that the result would prove highly advantageous and fortunate for our country. he further said, that he had critically examined the various articles of the treaty; that he had weighed the arguments for and against them, jointly and severally; that he had considered them all with the attention their importance required; and though, in some instances, we might have wished an extension of advantages on our side, he was bound, in conscience, to declare that he thought the treaty as beneficial to us as we had a right to expect. the right of the president, by and with the advice and consent of the senate, to make treaties, is a principle clearly defined by the constitution. not a single power delegated by the constitution to any one branch of the government is defined in terms more explicit, or less liable to be misunderstood, than those which define the treaty-making power of the united states; and, during the whole course of the former and present debates, mr. f. observed, he had not been able to raise a doubt in his own mind on the subject. the treaty under consideration had been duly made and ratified by the proper authority, constituted for this purpose by the people of the united states; as such it was now before the committee and demanded their serious attention and respect. the subject was allowed by all to be of importance. to him it appeared more momentous than any other which, at any time since the establishment of the government, had engrossed the attention of congress. he viewed it not as a question of peace or war only, but as involving questions of far greater magnitude. he meant the present unexampled prosperity of this country, our political happiness, our excellent constitution, and probably, in its consequences, the existence of the national government. mr. kitchell said, he could throw no new light upon the subject under discussion; he wished only to express a few ideas which would lead him to support the resolution in its present form. he did not believe the treaty to be that box of pandora, which was to scatter evils of every kind upon the land. he believed there were stipulations in favor of the united states, as well as in favor of great britain; and when the ministers of the two nations enter into contract, it must be expected that stipulations will be agreed to on each side which will not appear perfectly satisfactory to either, as certain concessions must be made on both sides. he would mention only the probable consequences of rejecting the treaty. the disposition of the two nations towards each other at the time of entering into negotiation was well known. the spoliations and injuries done to the american vessels had wound up american resentment to the highest pitch. happily for america, britain saw cause to change her system of aggression. he believed, with some other gentlemen, that britain had not only formed the plan of crushing the rising liberties of france, but also of extending her views to america; but, from a reverse of fortune, she found it necessary to employ all her resources against france. there was another thing, the people of england were clamorous on account of the injuries done to the vessels of america; they were seen to be unjust, and were publicly reprobated. these circumstances were favorable to our negotiation, and he believed they could at no time have got a better treaty, than at the time the present was agreed upon. he said, they had only three alternatives. either to give aid to the treaty, continue to bear the insults of great britain, or else to determine resolutely on the dernier resort, war. mr. griswold said, that in his opinion, the extensive view which the committee were taking of the merits of the treaty with great britain was unwarranted by the constitution of the united states; that he did not believe any part of the treaty-making power had been delegated to the house of representatives; and that the committee might with as much propriety examine the merits of the constitution itself, for the purpose of deciding whether they would execute it or not, as to examine the treaty in the manner which had been adopted in the committee. he had, on a former occasion, delivered his opinions on that subject, and he would not attempt to repeat them; but since the committee had thought proper to take an extensive view of the merits of the treaty, he would follow the example which had been set him, and submit a few observations upon that subject--more particularly as he believed that no discussion would prove injurious to that instrument. he should not, however, attempt to take a very extensive view of the subject, as gentlemen who had preceded him had exhausted almost every part of the subject and left little to be said at that period of the debate. mr. g. said the treaty embraced three great objects: . the execution of those parts of the treaty of , which remained unexecuted. . the settlement of disputes. . stipulations for regulating the commercial and other intercourse between the two nations. he said that it would be agreed on every side of the house that these objects were important; and if they had been justly and fairly secured by the stipulations of the treaty, it would not be said that the committee ought to feel dissatisfied with that instrument. he believed that this was really the case, and that the united states had no just cause to complain of the terms therein contained. several objections, however, had been made to that part of the treaty which provided for the execution of the treaty of . it had been said that this treaty did not provide for every part of the treaty of peace which remained unexecuted; and that conditions were annexed to the execution of those parts of that treaty which had been provided for highly injurious to the interest of the united states. he said, if those objections were well founded, they formed a very serious objection to the present treaty: but he could not find them by comparing or examining the two treaties. the only article of the treaty of peace which it was said had been violated by the british government, and was not provided for by the present treaty, was that which respected the negroes and other property of the american inhabitants. he said he would not detain the committee with many remarks on this part of the subject, as it had been very fully and ably explained by gentlemen who had gone before him: he only mentioned it for the purpose of reading that part of the journal of mr. adams, one of the american negotiators of the peace, which immediately related to this subject. the same journal had been already read by different gentlemen, in detached parts, but he wished to bring the whole journal at one view before the committee. he said, however, that he ought to repeat what had been already said on the floor, that the article in question did not want any exterior aid to assist the committee with an explanation. the words of the article were certain and explicit; they declared that the evacuation should be made "without carrying away any negroes or other property belonging to the american inhabitants;" and as it was universally agreed that the negroes who had been carried away consisted either of those who had fled from their masters during the war, on a promise of emancipation, or of those who had been taken as plunder in the period of hostility, no doubt could exist but that in all those cases the property in the negroes was changed; that they were no longer the property of american inhabitants, and of course it was no violation of the treaty to carry them away. and whatever might have since been said on that subject, he was convinced that the american commissioners, at the close of the negotiation, had no idea of including in the treaty of peace a stipulation to secure a restoration of negroes then in the possession of the british army. to evince this fact, he said he would now read the journal he had before alluded to. [he read some paragraphs from that journal.] mr. g. said that it appeared, from the journal he had read, on what ground the negotiation respecting the negroes stood. the british agent claimed a restitution of confiscated estates. to rebut this demand, the american commissioners, among other things, claimed compensation for negroes and other property which had been taken as plunder in different periods of the war. finding, however, that no agreement could be obtained on these contested points, they were all relinquished as impracticable; and the claim for negroes, which had been made for no other purpose than to rebut the claim for confiscated estates, was given up of course, and, at the moment of signing the treaty, the article in question was inserted--not to secure a restitution of property which had been changed by the events of the war, but to secure by stipulation, that the evacuations should be made without any destruction, or carrying away property really belonging to the american inhabitants. he said that it had always been a matter of surprise to him that any gentleman had put a different construction on this article; and he thought the parties had done wisely in excluding from the present treaty a claim which did not possess even the shadow of justice. mr. gallatin said he would not follow some of the gentlemen who had preceded him, by dwelling upon the discretion of the legislature--a question which had already been the subject of their deliberation, and been decided by a solemn vote. gentlemen who had been in the minority on that question might give any construction they pleased to the declaratory resolution of the house; they might again repeat that, to refuse to carry the treaty into effect, was a breach of the public faith, which they conceived as being pledged by the president and senate. this had been the ground on which a difference of opinion had existed since the beginning of the discussion. it was because the house thought the faith of the nation could not, on those subjects submitted to the power of congress, be pledged by any constituted authority other than the legislature, that they had resolved that, in all such cases, it was their right and duty to consider the expediency of carrying a treaty into effect. if the house thought the faith of the nation already pledged, they could not claim any discretion; there would be no room left to deliberate upon the expediency of the thing. the resolution now under consideration was merely "that it was expedient to carry the british treaty into effect," and not whether they were bound by national faith to do it. he would, therefore, consider the question of expediency alone; and, thinking as he did, that the house had full discretion on the subject, he conceived that there was as much responsibility in deciding in the affirmative as in rejecting the resolution; that they would be equally answerable for the consequences that might follow from either. it was, however, true that there was a great difference between the situation of this country in the year , when a negotiator was appointed, and that in which we were at present; and that consequences would follow the refusal to carry into effect the treaty in its present stage, which would not have attended a refusal to negotiate, and enter into such a treaty. the question of expediency, therefore, assumed before them a different and more complex shape than when before the negotiator, the senate, or the president. the treaty, in itself, and abstractedly considered, might be injurious; it might be such an instrument as, in the opinion of the house, ought not to have been adopted by the executive; and yet, such as it was, they might think it expedient, under the present circumstances, to carry it into effect. he would, therefore, first take a view of the provisions of the treaty itself, and in the next place, supposing it injurious, consider, in case it was not carried into effect, what would be the natural consequences of such refusal. the provisions of the treaty relate either to the adjustment of past differences or to the future intercourse of the two nations. the differences now existing between great britain and this country arose either from the non-execution of some articles of the treaty of peace, or from the effects of the present european war. the complaints of britain in relation to the treaty of were confined to the legal impediments thrown by the several states in the way of the recovery of british debts. the late treaty had provided adequate remedy on that subject; the united states were bound to make full and complete compensation for any losses arising from that source, and every ground of complaint on the part of great britain was removed. having thus done full justice to the other nation, america had a right to expect that equal attention should be paid to her claims arising from infractions of the treaty of peace, viz: compensation for the negroes carried away by the british; restoration of the western posts, and indemnification for their detention. on the subject of the first claim, which had been objected to as groundless, he would observe, that he was not satisfied that the construction given by the british government to that article of the treaty was justified even by the letter of the article. that construction rested on the supposition that slaves came under the general denomination of booty, and were alienated the moment they fell in the possession of an enemy, so that all those who were in the hands of the british when the treaty of peace was signed, must be considered as british, and not american property, and were not included in the article. it would however appear by recurring to _vattel_, when speaking of the right of _postliminium_, that slaves were not considered as part of the booty which was alienated by the act of capture, and that they were ranked rather with real property, to the profits of which only the captors were entitled. be that as it may, there was no doubt that the construction given by america was that which had been understood by the parties at the time of making the treaty. the journals of mr. adams, quoted by a gentleman from connecticut, (mr. coit) proved this fully; for when he says that the insertion of this article was alone worth the journey of mr. laurens from london, can it be supposed that he would have laid so much stress on a clause which, according to the new construction now attempted to be given, meant only that the british would commit no new act of hostility? would not carry away slaves at that time in possession of americans? congress had recognized that construction by adopting the resolution which had been already quoted, and which was introduced upon the motion of mr. alexander hamilton; and it had not been denied that the british ministry, during mr. adams's embassy, had also agreed to it. but when our negotiator had, for the sake of peace, waived that claim; when he had also abandoned the right which america had to demand an indemnification for the detention of the posts, although he had conceded the right of a similar nature, which great britain had for the detention of debt; when he had thus given up every thing which might be supposed to be of a doubtful nature, it might have been hoped that our last claim--a claim on which there was not and there never had been any dispute--the western posts should have been restored according to the terms of the treaty of peace. upon what ground the british had insisted, and our negotiator conceded, that this late restitution should be saddled with new conditions, which made no part of the original contract, mr. g. was at a loss to know. british traders were all allowed, by the new treaty, to remain within the posts without becoming citizens of the united states, and to carry on trade and commerce with the indians living within our boundaries, without being subject to any control from our government. in vain was it said, that if that clause had not been inserted we would have found it our interest to effect it by our own laws. of this we were alone competent judges; if that condition was harmless at present, it was not possible to foresee whether, under future circumstances, it would not prove highly injurious; and, whether harmless or not, it was not less a permanent and new condition imposed upon us. but the fact was, that by the introduction of that clause, by obliging us to keep within our jurisdiction, as british subjects, the very men who had been the instruments used by great britain to promote indian wars on our frontiers,--by obliging us to suffer those men to continue their commerce with indians living in our territory, uncontrolled by those regulations, which we had thought necessary, in order to restrain our own citizens in their intercourse with these tribes, great britain had preserved her full influence with the indian nations; by a restoration of the posts under that condition, we had lost the greatest advantage that was expected from their possession, viz: future security against the indians. in the same manner had the british preserved the commercial advantages which resulted from the occupancy of these posts, by stipulating as a permanent condition a free passage for their goods across our portages, without paying any duty. the remaining provisions of the treaty had no connection with past differences; they made no part of the convention which had been the avowed object of mr. jay's mission; they applied solely to the future intercourse of the two nations as relating to commerce and navigation; and had they been entirely omitted, our differences would have been nevertheless adjusted. it was agreed on all hands, that so far as related to our commerce with great britain, we wanted no treaty. the intercourse, although useful perhaps to both parties, was more immediately necessary to england, and her own interest was a sufficient pledge of her granting us at all times a perfect liberty of commerce to her european ports. if we want to treat with her, it must be in order to obtain some intercourse with her colonies, and some general security in our navigation. the twelfth and thirteenth articles had been obtained by our negotiator with a view to the first object. the twelfth article, however, which related to our intercourse with the west indies, was found, upon examination, to be accompanied by a restriction of such a nature, that what had been granted by great britain as a favor, was rejected by the senate as highly injurious. the thirteenth article, which related to the east indies, and remained part of the treaty, was, like the twelfth, conferring a favor limited by restrictions, and so far as he could depend upon the opinion of the best-informed judges on that subject, those restrictions put the trade in a more disadvantageous situation than it was before the treaty. as the west india article had declared that we should not re-export any produce of those islands to europe, so the east india article, at the same time it granted us the privilege, which we enjoyed before, and which we enjoyed because it was the interest of the east india company to grant it to us, that of being admitted in the british seaports there, had forbidden our carrying any articles from thence to any place except to america; which regulation amounted to a total prohibition to export east india articles to china, or to obtain freights back to europe; and, upon the whole, he could not help thinking, from what had fallen on that floor, and what he had heard elsewhere from gentlemen of great commercial knowledge, that if the east india commerce had been as generally understood in america as the west india trade, that so much boasted of article would have met the same fate in the senate with the twelfth article. during the american war, in the year , so fully convinced were the neutral nations of the necessity of introducing that doctrine of free bottom making free goods, that all of them, excepting portugal, who was in a state of vassalage to, and a mere appendage of great britain, had united in order to establish the principle, and had formed for that purpose the alliance known by the name of the armed neutrality. all the belligerent powers, except england, had recognized and agreed to the doctrine. england itself had been obliged, in some measure, to give for a while a tacit acquiescence. america had completely, at the time, admitted the principle, although they were then at war, [mr. g. quoted on this subject the journals of congress of the year , page , and of the year , page ,] and it had been introduced in every other treaty we had concluded since our existence as a nation. since the year , every nation, so far as his knowledge went, had refused to enter into a treaty of commerce with england, unless that provision was inserted. russia, for that reason, would not renew their treaty, which had expired in , although he believed that, during the present war, and in order to answer the ends of the war, they had formed a temporary convention, which he had not seen, but which, perhaps, did not include that provision. england had consented to it in their treaty with france in , and we were the first neutral nation who abandoned the common cause, gave up the claim, and, by a positive declaration inserted in our treaty, had recognized the contrary doctrine. it had been said, that under the present circumstances, it could not be expected that great britain would give up the point: perhaps so; but the objection was not, that our negotiator had not been able to obtain that doctrine, but that he had consented to enter into a treaty of commerce (which we did not want, and which had no connection with an adjustment of our differences with great britain) without the principle contended for making part of that treaty. unless we could obtain security for our navigation, we wanted no treaty; and the only provision which could give us that security, should have been the _sine qua non_ of a treaty. on the contrary, we had disgusted all the other neutral nations of europe, without whose concert and assistance there was but little hope that we should ever obtain that point, and we had taught great britain that we were disposed to form the most intimate connections with her, even at the expense of recognizing the principle the most fatal to the liberty of commerce, and to the security of our navigation. mr. g. was not going to enter into a discussion of the immorality of sequestering private property. what could be more immoral than war? or the plundering of the high seas legalized under the name of privateering? yet self-defence justified the first, and the necessity of the case might, at least in some instances, and where it was the only practicable mode of warfare left to a nation, apologize even for the last. in the same manner the power of sequestration might be resorted to, as the last weapon of self-defence, rather than to seek redress by an appeal to arms. it was the last peace-measure that could be taken by a nation; but the treaty, by declaring that in case of national differences it should not be resorted to, had deprived us of the power of judging of its propriety, had rendered it an act of hostility, and had effectually taken off that restraint which a fear of its exercise laid upon great britain. thus it appeared that, by the treaty, we had promised full compensation to england for every possible claim they might have against us, that we had abandoned every claim of a doubtful nature, and that we had consented to receive the posts, our claim to which was not disputed, under new conditions and restrictions never before contemplated. that, after having obtained, by those concessions, an adjustment of past differences, we had entered into a new agreement, unconnected with those objects, which had heretofore been subjects of discussion between the two nations; and that, by that treaty of commerce and navigation, we had obtained no commercial advantage which we did not enjoy before; we had obtained no security against future aggressions, no security in favor of the freedom of our navigation, and we had parted with every pledge we had in our hands, with every power of restriction, with every weapon of self-defence, which was calculated to give us any security. from the review he had taken of the treaty, and the opinions he had expressed, mr. g. said, it was hardly necessary for him to add that he looked upon the instrument as highly injurious to the interests of the united states, and that he earnestly wished it never had been made; but whether, in its present stage, the house ought to refuse to carry it into effect, and what would be the probable consequences of a refusal, was a question which required the most serious attention, and which he would now attempt to investigate. should the treaty be finally defeated, either new negotiations would be more successful, or great britain would refuse to make a new arrangement, and leave things in the situation in which they were, or war would be the consequence. mr. g. said that he would, in the course of his observations, make some remarks on the last supposition; he did not think that the first would be very probable at present, and he was of opinion that, under the present circumstances, and until some change took place in our own or in the relative political situation of the european nations, it was to be apprehended that, in such a case, new negotiations would either be rejected or prove unsuccessful. such an event would have perhaps followed a rejection of the treaty even by the senate or by the president. after the negotiator employed by the united states had once affixed his signature, it must have become very problematical, unless he had exceeded his powers, whether a refusal to sanction the contract he had made would not eventually defeat, at least for a time, the prospect of a new treaty. he conceived that the hopes of obtaining better conditions, by a new negotiation, were much less in the present stage of the business than they had been when the treaty was in its inchoate form before the executive; and in order to have a just idea of the consequences of a rejection at present, he would contemplate them upon that supposition which appeared to him most probable, viz: that no new treaty would take place for a certain period of time. as he was not sensible that a single commercial advantage had been obtained by the treaty, he could not mention the loss of any, as a mischief that would attend its rejection. if, however, the east india article was supposed to be beneficial, it must, on the other hand, be conceded that we had enjoyed every benefit arising from it for a number of years, without treaty, and consequently, because it was the interest of the east india company that we should enjoy them; and that it was not probable that circumstances would so far change there, during the short period to which that article was limited, as to induce that company to adopt a different policy towards us. but it was said that war must be the consequence of our delaying to carry the treaty into effect. did the gentlemen mean that, if we rejected the treaty, if we did not accept the reparation there given to us, in order to obtain redress, we had no alternative left but war? if we must go to war in order to obtain reparation for insults and spoliations on our trade, we must do it, even if we carry the present treaty into effect; for the treaty gives us no reparation for the aggressions committed since it was ratified, has not produced a discontinuance of those acts of hostility, and gives us no security that they shall be discontinued. but the argument of those gentlemen, who supposed that america must go to war, applied to a final rejection of the treaty, and not to a delay. he did not propose to refuse the reparation offered by the treaty, and to put up with the aggressions committed; he had agreed that that reparation, such as it was, was a valuable article of the treaty; he had agreed that, under the present circumstances, a greater evil would follow a total rejection than an acquiescence to the treaty. the only measure which had been mentioned in preference to the one now under discussion, was a suspension, a postponement whilst the present spoliations continued, in hopes to obtain for them a similar reparation, and assurances that they would cease. but, was it meant to insinuate that it was the final intention of those who pretended to wish only for a postponement, to involve this country in a war? there was no period of the present european war at which it would not have been weak and wicked to adopt such measures as must involve america in the contest, unless forced into it for the sake of self-defence; but, at this time, to think of it, would fall but little short of madness. the whole american nation would rise in opposition to the idea; and it might, at least, have been recollected that war could not be declared except by congress, and that two of the branches of government were sufficient to check the other in any supposed attempt of that kind. but to the cry of war, the alarmists did not fail to add that of confusion; and they had declared, even on this floor, that if the resolution was not adopted, government would be dissolved. government dissolved in case a postponement took place! this idea was too absurd to deserve a direct answer. but he would ask those gentlemen, by whom the government was to be dissolved? certainly not by those who would vote against the resolution; for, although they were not, perhaps, fortunate enough to have obtained the confidence of the gentleman who voted against them, still, it must be agreed, that those who succeeded in their wishes, who defeated a measure they disliked, would not wish to destroy that government, which they held, so far, in their hands, as to be able to carry their own measures. for them to dissolve the government would be to dissolve their own power. by whom, then, he would ask again, was the government to be dissolved? the gentlemen must answer, by themselves, or they must declare that they meant nothing but to alarm. was it really the language of those men, who professed to be, who distinguished themselves by the self-assumed appellation of friends to order, that if they did not succeed in all their measures, they would overset the government? and had all their professions been only a veil to hide their love of power? a pretence to cover their ambition? did they mean, that the first event which would put an end to their own authority should be the last act of government? as to himself, he did not believe that they had such an intention; he had too good an opinion of their patriotism to permit himself to admit such an idea for a single moment; but he thought himself justifiable in entertaining a belief, that some amongst them, in order to carry a favorite, and what they thought to be an advantageous measure, meant to spread an alarm, which they did not feel; and he had no doubt that many had contracted such a habit of carrying every measure of government as they pleased, that they really thought that every thing must be thrown into confusion the moment they were thwarted in a matter of importance. he hoped that experience would, in future, cure their fears. but, at all events, be the wishes and intentions of the members of this house what they may, it was not in their power to dissolve the government. the people of the united states, from one end of the continent to the other, were strongly attached to their constitution; they would restrain and punish the excesses of any party, of any set of men in the government, who would be guilty of the attempt; and on them he would rest as a full security against every endeavor to destroy our union, our constitution, or our government. but, although he was not afraid of a dissolution, he felt how highly desirable a more general union of sentiment would be; he felt the importance of an agreement of opinion between the different branches of government, and even between the members of the same branch. he would sacrifice much to obtain that object; it had been one of the most urging motives with him to be in favor, not of a rejection, but only of a suspension, of a delay. but even as a matter of opinion, it was difficult to say which mode of proceeding, in this house, would best accord with the general sentiments of the people. so far as related to the petitions before them, the number of signatures against the treaty exceeded, at the moment he was speaking, the number of those in favor of the treaty. true it was, that an alarm which had produced a combination, had lately taken place amongst the merchants of this and some other seaports. what effect it would have, and how successful they would eventually be, in spreading this alarm amongst the people at large, he could not tell; but there were circumstances accompanying their petition, which, in his opinion, much diminished the weight they otherwise might have had. they had, undoubtedly, a right to petition upon every public measure, where they thought themselves interested, and their petitions would deserve equal regard, with those of their fellow-citizens throughout the united states. but on this occasion, in order to create an alarm, in order to induce the people to join them, in order to force the house to pass the laws relative to the treaty, they had formed a dangerous combination, and affected to cease insuring vessels, purchasing produce, and transacting any business. a gentleman from new york (mr. williams) had been so much alarmed himself, that he had predicted a fall in the price of every kind of produce, and seems, indeed, to have supposed, that the clamors of a few individuals here would either put an end to, or satisfy the wants of those nations which depended on us for supplies of provisions. yet, it had so happened, and it was a complete proof that the whole was only an alarm, that whilst they were debating, the price of flour, which was of very dull sale two weeks ago, had risen in equal proportion with the supposed fears of the purchasers. he could not help considering the cry of war, the threats of a dissolution of government, and the present alarm, as designed for the same purpose, that of making an impression on the fears of this house. it was through the fear of being involved in a war, that the negotiation with great britain had originated; under the impression of fear, the treaty had been negotiated and signed; a fear of the same danger, that of war, had promoted its ratification; and now, every imaginary mischief which could alarm our fears, was conjured up, in order to deprive us of that discretion, which this house thought they had a right to exercise, and in order to force us to carry the treaty into effect. _the son of the marquis lafayette._ mr. livingston, chairman of the committee for carrying into effect a resolution respecting the son of the marquis lafayette, reported that he had arrived in this country; that he had received the patronage of the president of the united states; that he was in new jersey for education, and to show that he had no occasion for pecuniary assistance, the committee subjoin a well-written, affecting letter to the chairman of the committee, in answer to one from him, expressive of his gratitude for the kind attention shown to him by the legislature of the united states, by the president, and to every person to whom he was made known; that he had no wants; that he was as happy as he could be; that if he should in future have occasion for assistance, he would apply to congress, who had been so kind and attentive to his welfare.[ ] thursday, april . _execution of british treaty._ the house then resolved itself into a committee of the whole on the state of the union; when, the resolution for carrying the british treaty into effect being under consideration---- mr. preston rose and spoke as follows: mr. chairman, i voted for the question yesterday, for the first time since this discussion began. i was then prepared to give my opinion, but, since the house has thought proper to devote another day to this important subject, i will take the liberty to offer my sentiments, and claim the indulgence of the committee for this purpose. i make this claim for their indulgence with the more confidence, as i have heretofore occupied but little of the time of the house on any occasion, and as i mean to be short on the present--not intending to take that comprehensive view of the subject which many gentlemen have done who have preceded me. with this apology i will proceed, conceiving, however that no apology is necessary on this or any other occasion where our duty impels us to come forward. but i must confess it has been painful to me to hear the recriminations that have taken place on this occasion. i had hoped, on a subject so important, on which it is said the peace and happiness of this our common country rests--whose welfare must be equally dear to all--that temperance and calmness would have marked our deliberations; that all our efforts would have been made to enlighten the minds and convince the judgments of each other, instead of lessening one another in our estimation, and that of our constituents, by dishonorable imputations, and which, i trust, every member would spurn. as to myself, mr. chairman, i stand here regardless of any imputations that ill-nature may cast upon me in this house, or abuse which may be conferred without doors. i shall not be deterred from pronouncing that opinion which my best reflections have enabled me to form. sir, in considering this subject, i had hoped every information possessed by any of the departments of government would have been freely afforded us; and i cannot but lament that the president, by a too strict adherence to what he has supposed to be his constitutional duty, refused the request of this house for certain papers, which request seemed to me not only proper, but innocent--proper, because they might have afforded information that would reconcile many of the objections entertained of the treaty, and finally produce its adoption; it was innocent, because, if there was no unfair procedure respecting this business, why not publish the transaction to the world--at all events to the representatives of the people, who, it is acknowledged by all, were not only to act on the treaty in some way, but were intrusted with the management of some of the dearest rights of their fellow-countrymen? if, then, the people confide in us such important concerns, might not the executive have reposed some degree of confidence, and complied with a request so decorously and respectfully made? but he has told us his duty forbids it. we are then reduced to the necessity to judge of the thing from the face of it, without the wished-for information. and i must confess it has always presented such a hideous and deformed aspect to my mind, that i have ever disliked it--which, together with the unfriendly sentiments of my constituents to it, has produced my prejudices. but i had determined, as the president and senate had ratified it, and many approved it, to keep my mind open for every information the subject was capable of. as, then, none has been offered to operate a change of my opinion, and as the most likely source is shut against us, my prejudices, instead of being lessened, have become firmly fixed in the opposition. but we are told the british committed no infraction of the treaty of , by withholding the posts; for we, having thrown legal impediments in the way of the recovery of their debts, became the first infractors thereof, whereby they were left free to comply or not. let us, for a moment, inquire into this fact. by the th article of that treaty, creditors on either side were to meet with no legal impediment to the recovery of their debts. by the th article of the same treaty, his majesty was, with all convenient speed, to withdraw his armies and garrisons from every post and place. now, sir, on comparing these articles, can it be presumed by any one that the latter stipulation was to remain unexecuted until the creditors recovered their debts? was it to remain as a pledge for the performance of the other? no one can entertain the idea for a moment. suppose the creditors had gone on in the collection of their debts without interruption, would it be said that the stipulations of the th article would be suspended until all the creditors were wholly satisfied? it is absurd, particularly when we reflect that the commissioners who negotiated that treaty must have contemplated the recovery of those debts by lawsuits; therefore, if the latter clause was intended to coerce the former, we would certainly not have had the insertion of the words "with all convenient speed," which implies an early compliance. if the opposite construction was just, i would venture to say, the british government would never have agreed to surrender the posts, but in consequence of such concessions as it now gets; for it would have the advantages of the fur trade, and the faith of this country pledged for the payment of the debts, which were accumulating by interest. this was a pleasing situation; but what was the situation of the british debtors? deprived of their negroes, which were to be returned by the treaty; deprived of the advantages of the trade with the indians, whereby they might be enabling themselves to discharge those debts; harassed and worn down with taxation, to support the indian wars excited by their creditors. in this situation of things, was it not natural for them to look around for security or indemnity against these evils; and would any thing more naturally present itself, than withholding the payment of the money to the very cause of these evils? none, sir; and i cannot conceive it so dishonorable as some gentlemen pretend to view it. but, sir, i will endeavor to show that the laws which were enacted by states for prohibiting the recovery of the british debts, were not an infraction of the treaty of . by the little book, which the gentleman from connecticut (mr. hillhouse) says is so precious, and which he hopes will be preserved for some time to come, we find that mr. jefferson has, in consequence of complaints from the british minister, respecting the impediments to the recovery of british debts, inquired into the facts, in those states where the complaints originated; the result of these inquiries was, that though there were state laws prohibiting, yet a number of gentlemen, of the first abilities and great integrity,--generally professional characters, and who have been engaged in proceedings of this kind,--certify, that wherever attempts were made to recover these debts, they have met with no more obstruction than other creditors. besides, those gentlemen were generally of opinion that, on the final ratification of the treaty of , it repealed all laws at variance with it. if, then, it had such a powerful attribute as to repeal former laws, it follows as a consequence, that subsequent laws opposing it were mere nullities. these opinions were cited the other day by a gentleman from massachusetts, (mr. sedgwick,) and relied on. i hope they will have their due weight on the application now to be made of them. so that, on the whole, it does appear to me the british creditor had nothing more to struggle with than other creditors had, except the well-founded prejudices imbibed by our countrymen against that nation, which, though the laws might in some measure correct, they could never eradicate. that these prejudices have produced irregularities in many instances and delay of collections, i have no doubt; but from the nature of things it is well known no foresight or protection could guard against it. indeed, they might have been expected, for can it be supposed that men would stand calmly and see their families reduced to penury and want by an unrelenting british creditor, who had aided to impair the very means of his debtor to pay, and whose government was by their acts daily increasing the evils, by exciting the indians to war against us, whereby our citizens were borne down with burdens to defend themselves? i say, would not such reflections, with ruin before our eyes, produce a degree of irritation in the most calm amongst us? i owe none of these debts, i never did, and i never will, if i can help it. i spurn the idea of involving my country in a debt of an incalculable amount, when millions of them never received any benefit thereby. it is wrong, it is unjust. i again repeat, that it does appear to me, on an impartial view of this subject, that the united states are not chargeable with the first infraction of the treaty of , and that therefore, we are not bound now to enter into a compact which appears to me to be warranted neither by the principles of reciprocity nor justice. but i undertake to say, and with some confidence too, that great britain committed the first infraction of that treaty, by withholding the posts, and also carrying away the negroes, which she had expressly stipulated to give up; and, to my astonishment, it is now contended that the taking away the negroes was not a violation of the treaty, as they came into their possession by the rights of war, and being deemed property were vested in the captors. admit, for a moment, they were that kind of property, and they became as much the property of their captors as any they had possessed themselves of in the same way, what then? certainly, that it followed of course, they had a right to dispose of them in any way they chose, either to emancipate them, retain them in slavery for their own use, or return them to their original owners. which of these alternatives have they elected to do? [here he read the following sentence from the treaty of .] "and his britannic majesty shall, with all convenient speed, and without causing any destruction or carrying away any negroes or other property of the american inhabitants, withdraw all his armies," &c., &c. now, sir, was not the carrying away the negroes a violation of this article? all america once thought so. no other construction ever entered the head of man till this treaty appeared; owners so construed it, and in virtue thereof made demands. congress, and even "_camillus_," once thought so, and so they declared it in the most solemn manner. and so it would be construed by all descriptions of people, from the schoolboy to the senator, to use the expression of the gentleman from new york, (mr. cooper,) had our minds remained in the same state they were in a dozen years ago. sir, if there be modern constructions of the constitution, i will venture to say there is the same of treaties. but another clause of the same article justifies my construction, to wit: the leaving in all fortifications the american artillery that may be therein. gentlemen will hardly say this means fortifications garrisoned by american soldiery; this would be absurd, for it is pretty well known that american artillery guarded itself better than british treaties did. was not this artillery, which had fallen into the hands of the enemy, a vested property, till the chances of war or the treaty had made a disposal thereof? unquestionably it was. were not the archives, records, deeds, &c., which had also fallen into the hands of the enemy, their property? there can be no doubt of it. yet we find these things stipulated to be given up. if, then, they chose to yield one species of property, might they not another? but, it is said, the negroes were not our property at the time of signing the treaty; so neither did the archives, records, &c., belong to the states--they were the property of the enemy; but certainly the british minister had as much right to stipulate for the return of the one as for the other, and he has in as explicit terms. this must have been the understanding of the commissioners who negotiated that treaty, although one of them has been traced to his slumbers, the evening before the sealing the treaty, for a different construction. so that, in this instance, the british have certainly committed the first infraction, by carrying off the negroes. and is it not extraordinary that, notwithstanding this, no claim is made for them, and yet we are bound to pay the british debts, when the very means of doing it are taken from the debtor by the creditor? sir, this is a serious oppression, and though not of a very great magnitude, will nevertheless be felt in an interesting manner, and if submitted to will be so under much disquietude. but the rejection of the treaty is tremendously alarming, indeed. war, and war's alarms, are echoed on all sides. we shall be attacked on one side by savage barbarity; up the mediterranean by algerine cruelty; our commerce prostrated, and our cities laid under contribution by the british. in short, the dogs of war let loose on us, and america, once happy america, will become the scene of bloodshed and desolation. great god! what man is there here that can be wicked enough to involve his country in such incalculable miseries? who has firmness enough to meet so foul a deed? particularly when we reflect on the dreadful act we are about to do, that will produce such scenes of horror and devastation! namely, refuse to accept a bargain derogatory to our national honor! this, sir, is to produce the dreadful catastrophe. but the measure of woe is not yet filled. there will be disunion; and american citizens will become american enemies, imbruing their hands in each other's blood. civil wars will rend our happy country. heavens! what a shock to suffering humanity here will be! and all about some commercial regulations and political differences with a foreign nation, who, i believe, in principle, is our inveterate enemy. mr. chairman, i am one who, though i have but little confidence in the british government, yet i cannot believe that she, or any other nation on earth, is so arrogant, and lost to every principle of humanity, as to go into such dreadful excesses, because we will not enter into a contract that will suit her interest. i fear war as much as any man, when a pretext is given; but can it be seriously said a rejection of this treaty is a cause of war? i cannot believe that such can possibly be the event. as to disunion, it is idle to talk of it; for i do believe if, instead of a minority of this house, every man in it were to return home full of spleen and disappointment, and were to use every exertion, every artifice in their power, to bring about a disunion, they would fail in so traitorous an attempt. the people, sir, would scoff them, would turn them out of office, and place therein more deserving characters. as then, mr. chairman, i cannot believe that war or disunion will be the result of a rejection of the treaty, and as i think it is one from which we ought to withhold our assent, i must give it my negative. and if, in this, time shall prove me wrong, i shall lament the error with the greatest sincerity, but i shall have the pleasing consolation to know it was an error of the head, and not of the heart. when mr. preston had taken his seat-- mr. ames rose, and addressed the chair as follows: mr. chairman: i entertain the hope, perhaps a rash one, that my strength will hold me out to speak a few minutes. in my judgment, a right decision will depend more on the temper and manner with which we may prevail on ourselves to contemplate the subject, than upon the development of any profound political principles, or any remarkable skill in the application of them. if we should succeed to neutralize our inclinations, we should find less difficulty than we have to apprehend in surmounting all our objections. the suggestion, a few days ago, that the house manifested symptoms of heat and irritation, was made and retorted as if the charge ought to create surprise, and would convey reproach. let us be more just to ourselves, and to the occasion. let us not affect to deny the existence and the intrusion of some portion of prejudice and feeling into the debate, when, from the very structure of our nature, we ought to anticipate the circumstance as a probability, and when we are admonished by the evidence of our senses that it is a fact. how can we make professions for ourselves, and offer exhortations to the house, that no influence should be felt but that of duty, and no guide respected but that of the understanding, while the peal to rally every passion of man is continually ringing in our ears. our understandings have been addressed, it is true, and with ability and effect; but, i demand, has any corner of the heart been left unexplored? it has been ransacked to find auxiliary arguments, and when that attempt failed, to awaken the sensibilities that would require none. every prejudice and feeling have been summoned to listen to some particular style of address; and yet we seem to believe, and to consider a doubt as an affront, that we are strangers to any influence but that of unbiased reason. it would be strange that a subject which has roused in turn all the passions of the country, should be discussed without the interference of any of our own. we are men, and, therefore, not exempt from those passions; as citizens and representatives, we feel the interest that must excite them. the hazard of great interests cannot fail to agitate strong passions: we are not disinterested, it is impossible we should be dispassionate. the warmth of such feelings may becloud the judgment, and, for a time, pervert the understanding; but the public sensibility and our own, has sharpened the spirit of inquiry, and given an animation to the debate. the public attention has been quickened to mark the progress of the discussion, and its judgment, often hasty and erroneous on first impressions, has become solid and enlightened at last. our result will, i hope, on that account, be the safer and more mature, as well as more accordant with that of the nation. the only constant agents in political affairs are the passions of men--shall we complain of our nature? shall we say that man ought to have been made otherwise? it is right already, because he, from whom we derive our nature, ordained it so; and because thus made, and thus acting, the cause of truth and the public good is the more surely promoted. but an attempt has been made to produce an influence of a nature more stubborn and more unfriendly to truth. it is very unfairly pretended that the constitutional right of this house is at stake, and to be asserted and preserved only by a vote in the negative. we hear it said that this is a struggle for liberty, a manly resistance against the design to nullify this assembly, and to make it a cypher in the government. that the president and senate, the numerous meetings in the cities, and the influence of the general alarm of the country, are the agents and instruments of a scheme of coercion and terror, to force the treaty down our throats, though we loathe it, and in spite of the clearest convictions of duty and conscience. it is necessary to pause here and inquire, whether suggestions of this kind be not unfair in their very texture and fabric, and pernicious in all their influences? they oppose an obstacle in the path of inquiry, not simply discouraging, but absolutely insurmountable. they will not yield to argument; for, as they were not reasoned up, they cannot be reasoned down. they are higher than a chinese wall in truth's way, and built of materials that are indestructible. while this remains, it is in vain to argue; it is in vain to say to this mountain, be thou cast into the sea. for, i ask of the men of knowledge of the world, whether they would not hold him for a blockhead that should hope to prevail in an argument whose scope and object it is to mortify the self-love of the expected proselyte? i ask, further, when such attempts have been made, have they not failed of success? the indignant heart repels a conviction that is believed to debase it. the self-love of an individual is not warmer in its sense, or more constant in its action, than what is called in french, _l'esprit de corps_, or the self-love of an assembly; that jealous affection which a body of men is always found to bear towards its own prerogatives and power. i will not condemn this passion. why should we urge an unmeaning censure, or yield to groundless fears that truth and duty will be abandoned, because men in a public assembly are still men, and feel that spirit of corps which is one of the laws of their nature? still less should we despond or complain, if we reflect that this very spirit is a guardian instinct that watches over the life of this assembly. it cherishes the principle of self-preservation; and, without its existence, and its existence with all the strength we see it possess, the privileges of the representatives of the people, and immediately the liberties of the people, would not be guarded, as they are, with a vigilance that never sleeps, and an unrelaxing constancy and courage. if the consequences, most unfairly attributed to the vote in the affirmative, were not chimerical, and worse, for they are deceptive, i should think it a reproach to be found even moderate in my zeal to assert the constitutional powers of this assembly; and, whenever they shall be in real danger, the present occasion affords proof that there will be no want of advocates and champions. indeed, so prompt are these feelings, and when once roused, so difficult to pacify, that, if we could prove the alarm was groundless, the prejudice against the appropriations may remain on the mind, and it may even pass for an act of prudence and duty to negative a measure which was lately believed by ourselves, and may hereafter be misconceived by others, to encroach upon the powers of the house. principles that bear a remote affinity with usurpation on those powers will be rejected, not merely as errors, but as wrongs. our sensibilities will shrink from a post where it is possible they may be wounded, and be inflamed by the slightest suspicion of an assault. while these prepossessions remain, all argument is useless; it may be heard with the ceremony of attention, and lavish its own resources, and the patience it wearies, to no manner of purpose. the ears may be open, but the mind will remain locked up, and every pass to the understanding guarded. unless, therefore, this jealous and repulsive fear for the rights of the house can be allayed, i will not ask a hearing. i cannot press this topic too far--i cannot address myself with too much emphasis to the magnanimity and candor of those who sit here, to suspect their own feelings, and while they do, to examine the grounds of their alarm. i repeat it, we must conquer our persuasion, that this body has an interest in one side of the question more than the other, before we attempt to surmount our objections. on most subjects, and solemn ones too, perhaps in the most solemn of all, we form our creed more from inclination than evidence. let me expostulate with gentlemen to admit, if it be only by way of supposition and for a moment, that it is barely possible they have yielded too suddenly to their alarms for the powers of this house; that the addresses which have been made with such variety of forms, and with so great dexterity in some of them, to all that is prejudice and passion in the heart, are either the effects or the instruments of artifice and deception, and then let them see the subject once more in its singleness and simplicity. it will be impossible, on taking a fair review of the subject, to justify the passionate appeals that have been made to us to struggle for our liberties and rights, and the solemn exhortation to reject the proposition, said to be concealed in that on your table, to surrender them for ever. in spite of this mock solemnity, i demand, if the house will not concur in the measure to execute the treaty, what other course shall we take? how many ways of proceeding lie open before us? in the nature of things there are but three--we are either to make the treaty--to observe it--or break it. it would be absurd to say we will do neither. if i may repeat a phrase, already so much abused, we are under coercion to do one of them, and we have no power, by the exercise of our discretion, to prevent the consequences of a choice. by refusing to act, we choose. the treaty will be broken, and fall to the ground. where is the fitness, then, of replying to those who urge upon this house the topics of duty and policy, that they attempt to force the treaty down, and to compel this assembly to renounce its discretion, and to degrade itself to the rank of a blind and passive instrument in the hands of the treaty-making power? in case we reject the appropriation, we do not secure any greater liberty of action, we gain no safer shelter than before, from the consequences of the decision. indeed, they are not to be evaded. it is neither just nor manly to complain that the treaty-making power has produced this coercion to act. it is not the art or the despotism of that power, it is the nature of things that compels. shall we, dreading to become the blind instruments of power, yield ourselves the blinder dupes of mere sounds of imposture? yet that word, that empty word, coercion, has given scope to an eloquence that, one would imagine, could not be tired, and did not choose to be quieted. let us examine still more in detail the alternatives that are before us, and we shall scarcely fail to see, in still stronger lights, the futility of our apprehensions for the power and liberty of the house. if, as some have suggested, the thing called a treaty is incomplete, if it has no binding force or obligation, the first question is, will this house complete the instrument, and by concurring, impart to it that force which it wants? the doctrine has been avowed, that the treaty, though formally ratified by the executive power of both nations, though published as a law for our own, by the president's proclamation, is still a mere proposition submitted to this assembly no way distinguishable in point of authority or obligation from a motion for leave to bring in a bill, or any other original act of ordinary legislation. this doctrine, so novel in our country, yet so dear to many, precisely for the reason that, in the contention of power, victory is always dear, is obviously repugnant to the very terms, as well as the fair interpretation of our own resolutions, (mr. blount's.) we declare that the treaty-making power is exclusively vested in the president and senate, and not in this house. need i say that we fly in the face of that resolution when we pretend that the acts of that power are not valid until we have concurred in them? it would be nonsense, or worse, to use the language of the most glaring contradiction and to claim a share in a power which we, at the same time, disclaim as exclusively vested in other departments. what can be more strange than to say, that the compacts of the president and senate with foreign nations are treaties, without our agency, and yet those compacts want all power and obligation until they are sanctioned by our concurrence? it is not my design in this place, if at all, to go into the discussion of this part of the subject. i will, at least for the present, take it for granted that this monstrous opinion stands in little need of remark, and, if it does, lies almost out of the reach of refutation. but, say those who hide the absurdity under the cover of ambiguous phrases, have we no discretion? and, if we have, are we not to make use of it in judging of the expediency or inexpediency of the treaty? our resolution claims that privilege, and we cannot surrender it without equal inconsistency and breach of duty. if there be any inconsistency in the case, it lies, not in making appropriations for the treaty, but in the resolution itself, (mr. blount's.) let us examine it more nearly. a treaty is a bargain between nations binding in good faith; and what makes a bargain? the assent of the contracting parties. we allow that the treaty power is not in this house; this house has no share in contracting, and is not a party; of consequence, the president and senate alone may make a treaty that is binding in good faith. we claim, however, say the gentlemen, a right to judge of the expediency of treaties--that is the constitutional province of our discretion. be it so--what follows? treaties when adjudged by us to be inexpedient, fall to the ground, and the public faith is not hurt. this, incredible and extravagant as it may seem, is asserted. the amount of it, in plainer language, is this--the president and senate are to make national bargains, and this house has nothing to do in making them. but bad bargains do not bind this house, and, of inevitable consequence, do not bind the nation. when a national bargain, called a treaty, is made, its binding force does not depend upon the making, but upon our opinion that it is good. as our opinion on the matter can be known and declared only by ourselves, when sitting in our legislative capacity, the treaty, though ratified, and, as we choose to term it, made, is hung up in suspense, till our sense is ascertained. we condemn the bargain, and it falls, though, as we say, our faith does not. we approve a bargain as expedient, and it stands firm, and binds the nation. yet, even in this latter case, its force is plainly not derived from the ratification by the treaty-making power, but from our approbation. who will trace these inferences, and pretend that we may have no share, according to the argument, in the treaty-making power? these opinions, nevertheless, have been advocated with infinite zeal and perseverance. is it possible that any man can be hardy enough to avow them, and their ridiculous consequences? let me hasten to suppose the treaty is considered as already made, and then the alternative is fairly presented to the mind, whether we will observe the treaty, or break it. this, in fact, is the naked question. if we choose to observe it with good faith, our course is obvious. whatever is stipulated to be done by the nation, must be complied with. our agency, if it should be requisite, cannot be properly refused. and i do not see why it is not as obligatory a rule of conduct for the legislature as for the courts of law. i cannot lose this opportunity to remark, that the coercion, so much dreaded and declaimed against, appears at length to be no more than the authority of principles, the despotism of duty. gentlemen complain that we are forced to act in this way, we are forced to swallow the treaty. it is very true, unless we claim the liberty of abuse, the right to act as we ought not. there is but one way open for us, the laws of morality and good faith have fenced up every other. what sort of liberty is that which we presume to exercise against the authority of those laws! it is for tyrants to complain that principles are restraints, and that they have no liberty so long as their despotism has limits. the consequences of refusing to make provision for the treaty are not all to be foreseen. by rejecting, vast interests are committed to the sport of the winds, chance becomes the arbiter of events, and it is forbidden to human foresight to count their number, or measure their extent. before we resolve to leap into this abyss, so dark and so profound, it becomes us to pause and reflect upon such of the dangers as are obvious and inevitable. if this assembly should be wrought into a temper to defy these consequences, it is vain, it is deceptive, to pretend that we can escape them. it is worse than weakness to say, that as to public faith our vote has already settled the question. another tribunal than our own is already erected. the public opinion, not merely of our own country, but of the enlightened world, will pronounce judgment that we cannot resist, that we dare not even affect to despise. well may i urge it to men who know the worth of character, that it is no trivial calamity to have it contested. refusing to do what the treaty stipulates shall be done, opens the controversy. even if we should stand justified at last, a character that is vindicated is something worse than it stood before, unquestioned and unquestionable. like the plaintiff in an action of slander, we recover a reputation disfigured by invective, and even tarnished by too much handling. in the combat for the honor of the nation, it may receive some wounds, which, though they should heal, will leave some scars. i need not say, for surely the feelings of every bosom have anticipated, that we cannot guard this sense of national honor, this ever-living fire, which alone keeps patriotism warm in the heart, with a sensibility too vigilant and jealous. if, by executing the treaty, there is no possibility of dishonor, and if by rejecting there is some foundation for doubt and for reproach, it is not for me to measure, it is for your own feelings to estimate the vast distance that divides the one side of the alternative from the other. if, therefore, we should enter on the examination of the question of duty and obligation with some feelings of prepossession, i do not hesitate to say, they are such as we ought to have; it is an after inquiry to determine whether they are such as ought finally to be resisted. to expatiate on the value of public faith, may pass with some men for declamation; to such men i have nothing to say. to others i will urge, can any circumstance mark upon a people more turpitude and debasement? can any thing tend more to make men think themselves mean, or degrade to a lower point their estimation of virtue and their standard of action? it would not merely demoralize mankind, it tends to break all the ligaments of society, to dissolve that mysterious charm which attracts individuals to the nation, and to inspire in its stead a repulsive sense of shame and disgust. what is patriotism? is it a narrow affection for the spot where a man was born? are the very clods where we tread entitled to this ardent preference because they are greener? no, sir; this is not the character of the virtue, and it soars higher for its object. it is an extended self-love, mingling with all the enjoyments of life, and twisting itself with the minutest filaments of the heart. it is thus we obey the laws of society, because they are the laws of virtue. in their authority we see not the array of force and terror, but the venerable image of our country's honor. every good citizen makes that honor his own, and cherishes it not only as precious but as sacred. he is willing to risk his life in its defence, and is conscious that he gains protection while he gives it. for what rights of a citizen will be deemed inviolable when a state renounces the principles that constitute their security? or, if his life should not be invaded, what would its enjoyments be in a country odious to the eyes of strangers and dishonored in his own? could he look with affection and veneration to such a country as his parent? the sense of having one would die within him; he would blush for his patriotism, if he retained any, and justly, for it would be a vice. he would be a banished man in his native land. i see no exception to the respect that is paid among nations to the law of good faith. if there are cases in this enlightened period when it is violated, there are none when it is decried. it is the philosophy of politics--the religion of governments. it is observed by barbarians that a whiff of tobacco-smoke or a string of beads gives not merely binding force, but sanctity, to treaties. even in algiers, a truce may be bought for money, but when ratified, even algiers is too wise or too just to disown and annul its obligation. thus, we see neither the ignorance of savages, nor the principles of an association for piracy and rapine, permit a nation to despise its engagements. if, sir, there could be a resurrection from the foot of the gallows; if the victims of justice could live again, collect together, and form a society, they would, however loth, soon find themselves obliged to make justice--that justice under which they fell--the fundamental law of their state. they would perceive it was their interest to make others respect, and they would therefore soon pay some respect themselves to the obligations of good faith. the refusal of the posts (inevitable, if we reject the treaty) is a measure too decisive in its nature to be neutral in its consequences. from great causes we are to look for great effects. a plain and obvious one will be, the price of the western lands will fall. settlers will not choose to fix their habitation on a field of battle. those who talk so much of the interests of the united states, should calculate how deeply it will be affected by rejecting the treaty--how vast a tract of wild land will almost cease to be property. this loss, let it be observed, will fall upon a fund expressly devoted to sink the national debt. what then are we called upon to do? however the form of the vote and the protestations of many may disguise the proceeding, our resolution is in substance (and it deserves to wear the title of a resolution) to prevent the sale of the western lands and the discharge of the public debt. will the tendency to indian hostilities be contrasted by any one? experience gives the answer. the frontiers were scourged with war till the negotiation with britain was far advanced, and then the state of hostility ceased. perhaps the public agents of both nations are innocent of fomenting the indian war, and perhaps they are not. we ought not, however, to expect that neighboring nations, highly irritated against each other, will neglect the friendship of the savages. the traders will gain an influence, and will abuse it; and who is ignorant that their passions are easily raised, and hardly restrained from violence. their situation will oblige them to choose between this country and great britain, in case the treaty should be rejected. they will not be our friends, and at the same time the friends of our enemies. but am i reduced to the necessity of proving this point? certainly the very men who charged the indian war on the detention of the posts will call for no other proof than the recital of their own speeches. it is remembered with what emphasis--with what acrimony--they expatiated on the burden of taxes, and the drain of blood and treasure into the western country, in consequence of britain's holding the posts. "until the posts are restored," they exclaimed, "the treasury and the frontiers must bleed." if any, against all these proofs, should maintain that the peace with the indians will be stable without the posts, to them i will urge another reply. from arguments calculated to produce conviction, i will appeal directly to the hearts of those who hear me, and ask whether it is not already planted there? i resort especially to the convictions of the western gentlemen, whether, supposing no posts and no treaty, the settlers will remain in security? can they take it upon them to say that an indian peace, under these circumstances, will prove firm. no, sir; it will not be peace, but a sword; it will be no better than a lure to draw victims within the reach of the tomahawk. on this theme, my emotions are unutterable. if i could find words for them--if my powers bore any proportion to my zeal--i would swell my voice to such a note of remonstrance it should reach every log-house beyond the mountains. i would say to the inhabitants, wake from your false security! your cruel dangers--your more cruel apprehensions--are soon to be renewed; the wounds, yet unhealed, are to be torn open again. in the day-time, your path through the woods will be ambushed; the darkness of midnight will glitter with the blaze of your dwellings. you are a father: the blood of your sons shall fatten your corn-field! you are a mother: the war-whoop shall wake the sleep of the cradle! on this subject you need not suspect any deception on your feelings. it is a spectacle of horror which cannot be overdrawn. if you have nature in your hearts, it will speak a language compared with which all i have said or can say will be poor and frigid. will it be whispered that the treaty has made me a new champion for the protection of the frontiers? it is known that my voice, as well as my vote, have been uniformly given in conformity with the ideas i have expressed. protection is the right of the frontier: it is our duty to give it. who will accuse me of wandering out of the subject? who will say that i exaggerate the tendencies of our measures? will any one answer by a sneer, that all this is idle preaching? will any one deny that we are bound--and i would hope to good purpose--by the most solemn sanctions of duty for the vote we give? are despots alone to be reproached for unfeeling indifference to the tears and blood of their subjects? are republicans irresponsible? have the principles on which you ground the reproach upon cabinets and kings no practical influence--no binding force? are they merely themes of idle declamation, introduced to decorate the morality of a newspaper essay, or to furnish pretty topics of harangue from the windows of that state-house? i trust it is neither too presumptuous, nor too late to ask, can you put the dearest interest of society at risk without guilt, and without remorse? it is vain to offer as an excuse, that public men are not to be reproached for the evils that may happen to ensue from their measures. this is very true, where they are unforeseen or inevitable. those i have depicted are not unforeseen; they are so far from inevitable, we are going to bring them into being by our vote. we choose the consequences, and become as justly answerable for them as for the measure that we know will produce them. by rejecting the posts, we light the savage fires--we bind the victims. this day we undertake to render account to the widows and orphans whom our decision will make; to the wretches that will be roasted at the stake; to our country; and i do not deem it too serious to say, to conscience, and to god--we are answerable; and if duty be any thing more than a word of imposture, if conscience be not a bugbear, we are preparing to make ourselves as wretched as our country. there is no mistake in this case; there can be none. experience has already been the prophet of events, and the cries of our future victims have already reached us. the western inhabitants are not a silent and uncomplaining sacrifice. the voice of humanity issues from the shade of their wilderness. it exclaims that while one hand is held up to reject this treaty, the other grasps a tomahawk. it summons our imagination to the scenes that will open. it is no great effort of the imagination to conceive, that events so near are already begun. i can fancy that i listen to the yells of savage vengeance, and the shrieks of torture. already they seem to sigh in the west wind; already they mingle with every echo from the mountains. are the posts to remain for ever in the possession of great britain? let those who reject them, when the treaty offers them to our hands, say, if they choose, they are of no importance. if they are, will they take them by force? the argument i am urging would then come to a point. to use force, is war. to talk of treaty again, is too absurd. posts and redress must come from voluntary good will, treaty, or war. such a state of things will exist, if we should long avoid war, as will be worse than war. peace without security, accumulation of injury without redress, or the hope of it, resentment against the aggressor, contempt for ourselves, intestine discord and anarchy. worse than this need not be apprehended, for if worse could happen, anarchy would bring it. is this the peace gentlemen undertake, with such fearless confidence, to maintain? is this the station of american dignity, which the high-spirited champions of our national independence and honor could endure; nay, which they are anxious and almost violent to seize for the country? what is there in the treaty that could humble us so low? are they the men to swallow their resentments, who so lately were choking with them? if in the case contemplated by them, it should be peace, i do not hesitate to declare it ought not to be peace. let me cheer the mind, weary no doubt and ready to respond on this prospect, by presenting another, which it is yet in our power to realize. is it possible for a real american to look at the prosperity of this country without some desire for its continuance, without some respect for the measures which, many will say, produced, and all will confess, have preserved it? will he not feel some dread that a change of system will reverse the scene? the well-grounded fears of our citizens in were removed by the treaty, but are not forgotten. then they deemed war nearly inevitable, and would not this adjustment have been considered at that day as a happy escape from the calamity? the great interest, and the general desire of our people, was, to enjoy the advantages of neutrality. this instrument, however misrepresented, affords america that inestimable security. the causes of our disputes are either cut up by the roots, or referred to a new negotiation, after the end of the european war. this was gaining every thing, because it confirmed our neutrality, by which our citizens are gaining every thing. this alone would justify the engagements of the government. for, when the fiery vapors of the war lowered in the skirts of our horizon, all our wishes were concentered in this one, that we might escape the desolation of the storm. this treaty, like a rainbow on the edge of the cloud, marked to our eyes the space where it was raging, and afforded at the same time the sure prognostic of fair weather. if we reject it, the vivid colors will grow pale; it will be a baleful meteor, portending tempest and war. let us not hesitate, then, to agree to the appropriation to carry it into faithful execution. thus we shall save the faith of our nation, secure its peace, and diffuse the spirit of confidence and enterprise that will augment its prosperity. the progress of wealth and improvement is wonderful, and, some will think, too rapid. the field for exertion is fruitful and vast, and, if peace and good government should be preserved, the acquisitions of our citizens are not so pleasing as the proofs of their industry, as the instruments of their future success. the rewards of exertion go to augment its power. profit is every hour becoming capital. the vast crop of our neutrality is all seed wheat, and is sown again to swell, almost beyond calculation, the future harvest of prosperity: and in this progress, what seems to be fiction, is found to fall short of experience. friday, april . _execution of british treaty._ mr. dayton (the speaker) declared that he did by no means intend to follow the gentlemen who had conceived it advisable to enter into a discussion of the merits of the treaty, article by article. to those, he said, who regarded this second treaty with great britain with disagreeable sensations--to those who believed that it did not contain in it such terms as the united states had reason to expect, and even a right to demand--to all those whose indignation had been excited at the unwarrantable outrages committed by that nation upon the rights of our neutral powers, who had seen their high-handed acts with astonishment, and the whole conduct of their administration towards this country with abhorrence--to those whose attachment for the french, nobly struggling for their liberties, was sincere, and who ardently wished that their revolution might terminate in the establishment of a good and stable government:--to all of this description, he could, with propriety, address himself, and say, that he harmonized with them in opinion, and that his feelings were in perfect unison with theirs. but if, he said, there should be found in that assembly one member, whose affection for any other nation exceeded that which he entertained for this, whose representative he was--if there could even be found a single man whose hatred to any other country was greater than his love for america--him, he should consider as his enemy, hostile to the interests of the people who sent him there, utterly unqualified to judge rightly of their concerns, and a betrayer of the trust reposed in him. but, mr. d. said, he could not believe it possible, that there were any such amongst them, and he was convinced that every one must see and feel the necessity of divesting himself of all his hatred, all his prejudices, and even all attachments that were in the least degree inconsistent with an unbiased deliberation and decision. the good and the prosperity of the people of the united states ought to be the primary object. it was that alone which their representatives were delegated and commissioned more immediately to promote, and who would deny that it was intimately connected with, and involved in the vote they were about to give? that the defects of this instrument of compact with britain greatly exceeded its merits, was a truth which was strongly impressed upon his mind, long before he had heard the reasoning of the gentleman from virginia, (mr. madison,) who had opened the debate. although that gentleman had sketched its deformities in strong colors, and had in some instances, perhaps, exaggerated them; yet, mr. d. said, he should not have contested the justice of the picture he had exhibited, if he had, at the same time, presented to their view, in true and faithful coloring, the other side of it also. yet, this was surely necessary in order to enable them to form a right judgment. that member had declared that the house were now called upon to approve the treaty, but mr. d. was far from believing such a declaration warranted by the language or nature of the propositions on the table, to which all might assent, without pledging themselves to be the approvers of the instrument itself. so firmly convinced was he of this, that, if he could subscribe to the truth and force of every objection that had been urged by that gentleman, he should, nevertheless, by no means conclude with him, that the house ought to withhold the appropriations, but, on the contrary, they ought to grant them. this would be his course of conduct, because difficulties and inconveniences alone presented themselves to their view and choice, and he thought he should act unfaithfully, if he endeavored to shun those on the one side only, without regarding the wide scene of dangers into which he might plunge his country on the other. what would be thought of that man, who, because the road he was travelling proved to be an uneven and rough one, should considerately betake himself to an opposite path without exploring the precipice that awaited him there? in the individual it would be deemed an evidence of madness, and such heedless conduct in that house could not escape the imputation of blindness. under impressions of this sort, as to the importance of the vote he was about to give, he conceived himself bound to extend his views beyond the mere intrinsic merits of the treaty, and to estimate the evils which must flow from a rejection of it. what, he asked, were these? would a foreign war, and the dissolution of the government be the certain fruits of a rejection, as had been represented by some gentlemen whose opinions he respected? these would certainly be amongst the most dreadful calamities which could befall a country, and, especially, one made up of confederacies like this; and although he did not think them probable, yet, they must be admitted to be possible, and as such, justify those who allow them to influence their minds. but he appealed to those gentlemen who seemed to treat such apprehensions as perfectly chimerical, whether there might not be others, which, though less alarming than a foreign war and dissolution of the union, would yet exceed--nay, very far exceed, those which are to follow the operation of the treaty. the first fruit of a rejection would be, mr. d. said, a claim from the merchants who had suffered by spoliations, to be fully indemnified from the treasury. he called upon the members who, like himself, represented agricultural states; and he called, also, upon those who represented the landed and agricultural interests in the commercial states, to declare, whether they were prepared to burden their constituents with a tax of five millions of dollars to be thus applied? he did not fear that he should be charged, as others had been, with sounding a false alarm. a proposition to that effect had already been laid on the table, and, what was not a little singular, it was founded on a presumption that the treaty was to be annulled by a vote of the house, and was to derive its support from that very circumstance. mr. d. thought it his duty to remind gentlemen of the doctrine uttered by the member from new york, (mr. livingston,) when he moved it, as well as of the extent of the principle contained in it. it is an established principle, said the mover, that protection is equally due to the person and property of all citizens, and that where the government fails to protect, it is bound to indemnify for all the losses that may be sustained by every individual in consequence of such failure. they were, therefore, mr. d. said, if they rejected the treaty, to be immediately called upon to recognize a principle which would not only pledge them to tax their fellow-citizens for the five millions, at which the british spoliations were estimated, but, also, to make compensation for every depredation that might hereafter be made upon their trade; nay, more, for every injury that any american citizen might suffer through want of protection. he was aware that he might be told that the resolution embraced only merchants who had suffered, but he contended that the principle, when established, must extend to all; for he challenged any gentleman to show what better title they who inhabited the frontier next the sea, had to claim governmental protection and indemnification, than they who inhabited a frontier on the land side? if, therefore, they were determined to compensate from the treasury the merchant for his plundered cargo, they were equally bound to pay the frontier settler for his stolen horse; and there would be no bounds to such claims, or means to satisfy them. it had been asked what would be the conduct of britain, when they should learn that the house of representatives had refused to make appropriations for the treaty. he was disposed to think that they would not consider it a cause, or make it a pretext, for the war. having in their hands the fur trade, the western posts, and about five millions of dollars, of which they had despoiled the people of these states, they might probably sit down contented with the spoils they had made, after this government had, by its own act, dissolved the stipulations they had entered into to make restitution and compensation. but what, in this state of things, would restrain their piratical cruisers in the west indies? they, whether hoping that a war would be the consequence of annulling the treaty, or that, as the two nations were no longer under that tie, they might again rob with impunity; and would probably seize on american vessels wherever they could meet them, and carry them into those ports in which corrupt judges stood ready to condemn them. so far as this question respected a dissolution of the present government, it was certainly a very delicate one. important as the subject under debate unquestionably was, he was free to declare it to be his opinion that no decision, however unfavorable it might seem, could justify, or would produce a separation of the states. he lamented that it had been conceived or mentioned by any one, for he should, whilst he had strength, resist such an event as the most fatal that could befall his country, and would cling to the union as the rock of their political salvation. but he would not say, nor would any one else seriously say, that there was no room to apprehend that a rejection might produce suspicions, jealousies, distrusts, and discord between the one part of the union and the other, and such a general fermentation in the public mind as never before prevailed. he could not here refrain from making a serious appeal to the candor and good sense of the gentleman from virginia. having served with him many years in public life--in the old congress, under the confederation, in the federal convention, and for nearly six years under the present form of government, he had, upon many and various occasions, witnessed the display of his superior talents, and the efforts of his patriotism, and derived from thence a conviction that, as at no former moment, so neither at the present, could he appeal to those qualities in that gentleman in vain. mr. d. requested him to turn his attention to the last article of the british treaty, and particularly that part of it which is in the words following, viz: "this treaty, when the same shall have been ratified by his majesty and by the president of the united states, by and with the advice and consent of their senate, and the respective ratifications mutually exchanged, shall be binding and obligatory on his majesty and on the said states, and shall be by them respectively executed and observed with punctuality and the most sincere regard to good faith," &c. he called upon the gentleman from virginia to show in what line or word of it the president had exceeded his authority, or, if that was not pretended, and he believed it was not by any one, he wished that gentleman to reflect for a moment how it was possible to refuse appropriations, and yet preserve inviolate the faith of this country, so solemnly pledged in that article. mr. d. concluded with observing that, although he was not pleased with many parts of the treaty--although he had never felt any strong predilection for an intimate connection with britain--although he had never seen their encroachments on the rights, nor their depredations upon the property of american citizens with an indulgent eye, or in the temper of tame submission, and although he had long ceased to entertain any respect for the negotiator, yet he should vote for the resolution, because he loved his country, and to that love, would sacrifice every resentment, every prejudice, every personal consideration. he should vote to carry the treaty into effect with good faith, because he sincerely believed that the interests of his fellow-citizens would be much more promoted by that, than by the opposite line of conduct. the question was then put on the resolution, which is in substance as follows: _resolved_, that it is expedient to make the necessary appropriations for carrying the treaty with great britain into effect. the house divided, forty-nine for the resolution, forty-nine against it. it remained for the chairman, mr. muhlenberg, to decide. he said, he did not feel satisfied with the resolution as it now stood; he should, however, vote for it, that it might go to the house, and there be modified. the resolution was consequently agreed to, and reported to the house. [the following statement will show the true sense of the house as to the expediency of carrying the british treaty into effect: forty-nine voted for this expediency. forty-nine against it. the chairman, mr. muhlenberg, to give an opportunity further to consider the resolution, voted for it. mr. patton from delaware was ill, and was necessarily absent. it is, however, well understood, that he is opposed to the treaty. mr. varnum was accidentally absent. he is no friend to the treaty. messrs. freeman, sherburne, and van cortlandt are absent on leave. mr. duvall has resigned, and his successor has not yet taken his seat. from which it is evident that there is an actual majority of the house against the expediency of carrying the treaty into execution.] saturday, april . _execution of british treaty._ the house then took up the resolution yesterday passed in a committee of the whole, for carrying into effect the treaty lately negotiated with great britain: when mr. dearborn said, as it appeared that a majority of that house was in favor of carrying into effect the british treaty, notwithstanding several of those gentlemen who had declared their intention of voting for it, had declared they thought it a bad treaty, and as he wished to see the opinion the house entertained of the treaty entered upon their journals, he took the liberty of proposing an amendment to the resolution in the following words: "_resolved_, that, although in the opinion of this house the treaty is highly objectionable, and may prove injurious to the united states, yet, considering all the circumstances relating thereto, and particularly, that the last eighteen articles are to continue in force only during the present war, and two years thereafter, and confiding also in the efficacy of measures that may be taken for bringing about a discontinuance of the violations committed on our neutral rights, in regard to our vessels and seamen, therefore, &c." mr. coit hoped the yeas and nays would be taken upon the question; which was agreed to. mr. goodhue hoped the house would not agree to the resolution; he, for one, would never agree to it. mr. swanwick hoped the amendment would be agreed to; for whatever some gentlemen's opinion might be with respect to the propriety of carrying the treaty into effect, very few thought it a good treaty. an amendment, therefore, declaring the motives which actuated that house in passing the resolution for carrying the treaty into effect was very desirable; it would induce some gentlemen to vote for it, who would otherwise vote against it, and it ought not to excite objection. he appealed to the recollection of gentlemen, the arguments which had been used to enforce the necessity of the appropriations, which laid great stress upon the shortness of time which the most objectionable part of the treaty was to be in force. he hoped, therefore, these arguments would not be objected to in the form of a resolution. mr. hillhouse said, when he prepared the resolution on the table, he thought he had done it in such general terms that every gentleman might vote for it, without expressing a sentiment contrary to what he entertained respecting the treaty. the amendment proposed, he thought very objectionable. it appeared as if it was intended to force gentlemen to vote against carrying the treaty into effect rather than vote for the treaty. for his own part, he could not vote for it, as it would be in direct contradiction to the sentiments which he had before expressed. he thought candor itself could not expect gentlemen who approved of the treaty to vote for the amendment. it was also a rule to avoid expressing particular sentiments in resolutions of this kind. one part of the proposition, if it was brought forward separately, would be assented to generally, respecting the confidence placed in the president, with respect to future spoliations and impressments of men. in this proposition, it was said, the treaty was injurious; he did not believe it was so. he believed it would be beneficial to the united states. it would not only be agreeing to an opinion which was contrary to the sentiments of gentlemen, but it would be passing a censure on the other branches of government. gentlemen were not required to say it was a good treaty, and he hoped no one would be forced to say it was a bad one. [the speaker informed the house that it was then twelve o'clock, and as they had yesterday ordered that there should be a call of the house to-day at that hour, he should direct the clerk to make the call. it was accordingly done. messrs. brent, harper, and patton were absent. the two former came to the house soon after the call, and, on making apologies, were excused. mr. patton was indisposed.] mr. gregg said he should vote for the resolution in its present state. he did so, not because he thought the treaty a good one, but because he believed the interest of the united states would be promoted by making the necessary appropriations, and because he was apprehensive worse consequences might arise from defeating it than from carrying it into effect. mr. moore considered himself as called upon to choose between two evils. he considered the treaty to be bad. on the other hand, he was apprehensive that evils might arise, if it was not carried into effect, out of the control of that house. he had resolved not to vote for the resolution on the table; but he felt unwilling to take upon himself the responsibility of rejecting the treaty, which had been sanctioned by the president and senate. in deciding upon the amendment proposed, he wished the sense of the house to be taken; and if he considered that a single individual would be influenced to vote against the resolution who would otherwise have voted for it, he should wish them to be separated. it was his opinion the treaty was a bad one, and he believed it was the opinion of a decided majority of that house. he wished the resolution to be so amended that the treaty might go into effect by a considerable majority, as it would tend to lessen the irritation which had been raised respecting it. mr. dearborn said, in offering the amendment which he had proposed, he had no intention of taking any thing like an unfair advantage, or of producing what might be thought uncandid or unfair. his own sentiments relative to the treaty were such as would prevent his consenting to do any thing to carry it into effect, unless with such a provision as he had brought forward. it appeared to him of such a nature, that he was not sure that he could bring his mind to vote to carry it into effect at all. he had supposed there could be nothing improper in taking the opinion of the house relative to the thing itself. if it might be presumed that there were but few gentlemen in that house who thought the treaty a good one, he, indeed, thought there were none of that opinion, until then, though some gentlemen had praised it in their speeches, but which he had merely considered as adding weight to their arguments, he believed such an amendment was desirable. as he, therefore, took it for granted that a considerable majority of the house were of the same opinion with himself, he saw no impropriety in having that opinion expressed. the propositions would not interfere with any bill which might be brought in, and gentlemen would have the discretion to vote for it or not. if a majority of the house thought differently from him, and chose to negative the amendment, he should be satisfied. until he heard something further on the business, to convince him of the impropriety of doing so, he should wish to see a decision of the house upon the proposition as he had offered it. mr. harper said he was of the number who thought the measure of passing the resolution on the table a very expedient one; but whilst this was his opinion, he knew there were many, both within and without their walls, of a different opinion. he had no objection to gentlemen's expressing their opinions, but he wished also to be at liberty to express his. he should, therefore, propose that the mover should form his resolution as a preamble. this would answer the purpose of the gentleman from virginia, (mr. moore.) he said, when it was so formed, every one would have an opportunity of voting for it, and, if negatived, the resolution would stand as before. he hoped, therefore, the proposal would be agreed to. mr. dearborn said he considered his motion in the nature of a preamble; and he had no objection to any alteration that would make it more properly so. mr. kittera appealed to the candor of the gentleman who brought forward the amendment, with respect to the propriety of making his proposition a distinct one. he thought it would be extremely improper to pass a resolution which would say, "we pass this law, though we believe it to be a very bad one." he thought it also directly charging another branch of the government with improper conduct. mr. nicholas had no objection to the amendment being inserted by way of preamble. he urged the propriety of the opinions of members being fairly taken on this important business. mr. gregg wished to offer an amendment, as a substitute to that before the committee. it was, in substance, as follows: "_resolved_, that under a consideration of existing circumstances, without reference to the merits or demerits of the treaty, and in confidence that measures will be taken by the executive to maintain our neutral rights, it is expedient," &c. this was declared out of order until the amendment was decided on. mr. venable had no objection to the propositions being taken separately, as gentlemen would be then left at liberty to vote as they pleased. he conceived there were gentlemen who would vote for the proposition with the amendment, who would not vote for it without it. he did not know that any amendment would reconcile the resolution to him; for, though he should vote for the amendment, he would not bind himself to vote for carrying into effect the treaty. mr. murray said he had not spoken on the subject before. he was stating that the president was armed only with reason; he was stripped of all the symbols of power, and if the treaty before them was carried into effect, with such a clog as the amendment proposed, he would be debilitated indeed. their executive had, in his opinion, done great things, and what would have covered any european minister with untarnished laurels, by means of reason and policy; for, however wickedly courts act, they calculate upon the force of the powers with whom they treat. when a minister goes to negotiate, they inquire into the naval and military force of his country, their appropriations for the army and navy, &c., &c. the envoy of the united states would be a blank upon such an occasion. what was their interest, then? it was to give energy to their government. should they then pass the law in such a manner as almost to warrant the people in resisting it? the only thing which remained for them to do, was, not only to carry the treaty into effect, but to carry it into effect with good faith. the object was not merely the posts--it was a conciliation of the differences long existing between the two nations; and it was their duty to execute it so as to produce the greatest advantage; whereas, if they were to agree to the amendment proposed, so covered with odium, it would weaken the power of the executive, already too feeble. mr. s. smith said he had never seen any cause of gloom. he never doubted that the members of that house would come to right conclusions. they did right yesterday, and he was not afraid of their doing wrong to-day. in their decision yesterday, the chairman had doubts. he decided in favor of the resolution, in hopes of its undergoing some modification--that modification was now brought forward. it did not entirely please him; but he thought it might be so amended as to please every one. he moved that the words "and may prove injurious to the united states," be struck out. consented to. mr. muhlenberg said, when he gave his vote yesterday, he did it in the hope of a modification of the resolution taking place in the house. a modification was now brought forward, and he was ready to vote for some such modification. whilst he made this declaration, he must add, that he was willing also to vote for the original resolution. he wished the sense of the house to be taken upon the two propositions separately. mr. dearborn consented to the propositions being taken separately. mr. s. smith moved to strike out the word "highly," so as to read _objectionable_, instead of "highly objectionable." the sense of the house was taken, when there were for the striking out, and against it. the speaker gave his vote in the affirmative. mr. kitchell said, he should vote against the proposition now brought forward, because he thought it wrong to hold up an idea which would have a tendency to weaken the government. he looked upon it as injurious. the people would judge upon the treaty from the instrument itself, and what had been said of it. they ought never to alarm the people unnecessarily. it was not from any fear of going to war, or any other apprehension but what he had mentioned, which caused this opposition in him. mr. gallatin said, if the propositions could be divided, no gentleman could reasonably object to the sense of the house being taken upon them. mr. parker said, he had not yet spoken upon this business. he would now say, he disapproved of the amendment, and should not vote for it. he thought the treaty a bad one, and would not agree to vote for it by means of any modification. mr. heister said, he should vote for the amendment, because, if the treaty went into operation, he should wish the reasons which induced the house to agree to it to appear, on the journals. when, however, the resolution for carrying the treaty into effect was put, he should vote against it. the motion was then put on the preamble, and decided in the negative, as follows: yeas, , nays : yeas.--theodorus bailey, abraham baldwin, david bard, lemuel benton, thomas blount, richard brent, dempsey burges, samuel j. cabell, gabriel christie, john clopton, isaac coles, henry dearborn, samuel earle, jesse franklin, albert gallatin, william b. giles, james gillespie, christopher greenup, andrew gregg, william barry grove, wade hampton, carter b. harrison, john hathorn, jonathan n. havens, daniel heister, james holland, george jackson, edward livingston, matthew locke, william lyman, samuel maclay, nathaniel macon, james madison, john milledge, andrew moore, frederick a. muhlenberg, anthony new, john nicholas, alexander d. orr, john page, francis preston, robert rutherford, israel smith, john swanwick, absalom tatom, philip van cortlandt, joseph b. varnum, abraham venable, and richard winn. nays.--fisher ames, benjamin bourne, theophilus bradbury, nathan bryan, daniel buck, thomas claiborne, joshua coit, wm. cooper, jeremiah crabb, george dent, abiel foster, dwight foster, ezekiel gilbert, nicholas gilman, henry glenn, benjamin goodhue, chauncey goodrich, roger griswold, george hancock, robert goodloe harper, thomas hartley, john heath, thomas henderson, james hillhouse, william hindman, aaron kitchell, john wilkes kittera, george leonard, samuel lyman, francis malbone, william vans murray, josiah parker, john read, john richards, theodore sedgwick, samuel sitgreaves, jeremiah smith, nathaniel smith, isaac smith, samuel smith, william smith, thomas sprigg, zephaniah swift, george thatcher, richard thomas, mark thompson, uriah tracy, john e. van allen, peleg wadsworth, and john williams. from this list it appears that the question was lost by one vote. the clerk, however, through mistake, reported the votes to be equal, viz: for and against the question, and the speaker gave his vote in the negative, but the above was afterwards found to be the true statement. mr. w. smith was glad the motion was negatived. he did not wish either blame or praise to be cast upon the treaty by the resolution passed to carry it into effect. he would, therefore, move to add the following words to the original resolution: "without reference to the merits of the treaty." mr. giles opposed this amendment. he said, it would be an indirect mode of passing a censure upon the house for having undertaken to judge of the merits of the treaty. he did not know whether it struck the gentleman in the same way, but he would agree it was improper to pass a censure upon the house. he hoped, therefore, the motion would either be withdrawn or voted against. the motion was withdrawn. mr. winn said, as it was his opinion, and the opinion of the generality of his constituents, that the treaty was a bad one, he should vote against it. the question was then taken by yeas and nays, and determined in the affirmative--yeas , nays , as follows: yeas.--fisher ames, theodorus bailey, benjamin bourne, theophilus bradbury, daniel buck, gabriel christie, joshua coit, william cooper, jeremiah crabb, george dent, abiel foster, dwight foster, ezekiel gilbert, nicholas gilman, henry glenn, benjamin goodhue, chauncey goodrich, andrew gregg, roger griswold, william barry grove, george hancock, robert goodloe harper, thomas hartley, thomas henderson, james hillhouse, william hindman, aaron kitchell, john wilkes kittera, george leonard, samuel lyman, francis malbone, frederick a. muhlenberg, wm. vans murray, john read, john richards, theodore sedgwick, samuel sitgreaves, jeremiah smith, nathaniel smith, isaac smith, samuel smith, william smith, zephaniah swift, george thatcher, richard thomas, mark thompson, uriah tracy, john e. van allen, philip van cortlandt, peleg wadsworth, and john williams. nays.--abraham baldwin, david bard, lemuel benton, thomas blount, richard brent, nathan bryan, dempsey burges, samuel j. cabell, thomas claiborne, john clopton, isaac coles, henry dearborn, samuel earle, jesse franklin, albert gallatin, william b. giles, james gillespie, christopher greenup, wade hampton, carter b. harrison, john hathorn, jonathan n. havens, john heath, daniel heister, james holland, george jackson, edward livingston, matthew locke, william lyman, samuel maclay, nathaniel macon, james madison, john milledge, andrew moore, anthony new, john nicholas, alexander d. orr, john page, josiah parker, francis preston, robert rutherford, israel smith, thomas sprigg, john swanwick, absalom tatom, joseph b. varnum, abraham venable, and richard winn. _ordered_, that a bill or bills be brought in, pursuant to the said resolution, and that mr. hillhouse, mr. sedgwick, and mr. gallatin, do prepare and bring in the same. [recapitulation. for declaring the treaty highly objectionable against this declaration the speaker decided in the negative. for declaring the treaty objectionable against the declaration; some because they did not consider it objectionable; others because they feared making the declaration would be injurious, and others because, so opposed to the treaty, as to object to all compromise the speaker decided in the negative. for carrying into effect the treaty; some because a good one, others because best to execute it under existing circumstances against carrying it into effect, because bad in itself, and notwithstanding existing circumstances absent on this question--messrs. sherburne and freeman, on leave; mr. duvall, resigned; mr. patton, by illness; mr. findlay, accidentally.][ ] friday, may . _admission of tennessee._ the house resolved itself into a committee of the whole, on the report of the committee to whom was referred the message of the president, relative to the territory of the united states south of the river ohio. mr. rutherford hoped the committee would concur in the report. he had no idea of confining that territory to the strict legal line. he did not wish to cavil with this brave, generous people. he would have them taken out of leading-strings, as they were now able to stand alone; it was time to take them by the hand, and to say, we are glad to see you, stand on your own feet. we should not, he said, be too nice about their turning out their toes, or other trifles; they will soon march lustily along. they had complied with every requisite for becoming a state of the union--they wished to form an additional star in the political hemisphere of the united states--they have erected a state government, and wish to come into the union, and to resist their claim would be out of character. he hoped it would be agreed to. mr. dayton said, he disapproved of the report of the committee, and of the terms in which the resolution they had recommended for the adoption of the house was expressed. he could never give his assent to any proposition which expressly or even impliedly admitted that the people inhabiting either of the territories of the united states could, at their own mere will and pleasure, and without the declared consent of congress, erect themselves into a separate and independent state. yet this seemed to be the spirit of the report under consideration, and what was still worse, it went, as he understood, to renounce any right in congress even to deliberate whether they should become a member of the union. he was by no means desirous of opposing the wishes of this valuable and enterprising people who inhabit the south-western territory, nor of unnecessarily impeding the efforts they were making to throw off the territorial jurisdiction, and establish a system of government for themselves; but being aware that the steps now about to be taken would be regarded and pursued hereafter as a precedent, he conceived it important that they should, in this first instance of the sort that had presented itself, proceed circumspectly and rightly. he was willing to pass a law in the present session which should at the same time provide for erecting and forming them into a state, and for admitting them as such into the union. they should thereby effectually promote the views of the people of tennessee, in a mode which, by avoiding the violation of any just political principle, would entirely reconciled and render consistent the interest of that district of country and of the several united states. mr. d. acknowledged that he should have been much better satisfied if he had found all the people comprehended within the territorial line petitioning for this measure, and if he had seen ingrafted in their constitution the conditions and restrictions contained in the ordinance upon which they found the right they were claiming; but he knew that unanimity was in no instance to be expected amongst a people so numerous and scattered; and he was convinced that they were bound by the conditions and limitations he alluded to, without an acknowledgment and repetition of them in their new charter. mr. dearborn said, as to the census relative to representation, it appeared doubtful, that, because that territory had now , inhabitants, they were entitled to two representatives, as the other states of the union were represented according to the number of inhabitants they contained in the year . it might be doubtful whether they should be entitled to an advantage which was not allowed to other states. it had been his opinion (and he saw no reasons to change) that if this territory was admitted into the union, it was not entitled to more than one representative; and therefore it was not necessary to make another census. as to passing a previous law recognizing the territory as a state before it was admitted into the union, he did not think it necessary. they say they are now a state, and surely congress would not say to them, you shall not be a state, or dictate to them what sort of a constitution they shall have, provided it be a republican. the method taken for ascertaining their number of inhabitants, he thought, could not be objected to. he saw no reason to prevent them from accepting the territory as a state of the union: what number of representatives they were entitled to, would turn upon another point. mr. blount said the house should have determined upon this question long since, as the government of tennessee had a month ago gone into operation. the people there had chosen not only their state officers, but their senators, and perhaps their representatives, to come to congress. the governor had, from time to time, informed the president of the united states of every step taken towards the proposed change of government. in july, he sent him a copy of the law directing the census to be taken; in november, when the census was completed, he sent him a copy of it, and a copy of his proclamation requiring the people to elect members of convention for the purpose of forming a constitution and state government; and on the th of february he sent him a copy of the constitution, with notice that on the th of march, when the general assembly of the state of tennessee would meet to act on the constitution, the temporary government would cease; and this last information was, to his knowledge, received on the th of february--forty days before it was communicated by the president to congress, and eleven days after it must have been known to the secretary of state, if not to the president, that the state government had gone into operation. what would be the consequence, said mr. b., of refusing at this time, and under these circumstances, to receive this state into the union? did gentlemen wish to re-establish a temporary territorial government there? if they did, he believed their wish would not easily be accomplished; for the people there believed, that in changing their government, they only exercised a right which had been secured to them by a sacred compact; and under that belief, they will be disposed to defend it. that right was, in his opinion, recognized by the government of the united states, when mr. white was permitted to take his seat in that house as the representative of the territory; and from that circumstance they had reason to expect that , inhabitants would have entitled them, without scruple, to be a member of the union. if the census was not a just one, or if there had been any fraud used in taking it, an impeachment would lie against the governor, who, upon his responsibility as an officer of the united states, sanctioned the law for taking it, and acted under it after it was taken. mr. w. lyman said the subject presented itself in two points of view--as it related to the territory being admitted as a state into the union, or as giving them a right to send members to congress. in his opinion, according to the ordinance of congress, they had a clear right to be admitted as a state into the union; for it was there said, that when they had , inhabitants, they should be entitled. no mode is pointed out how it shall be ascertained; but the governor being expressly mentioned in the case where , inhabitants were to entitle them to a temporary government, he thought there could be no doubt but the same way was to be observed with respect to their qualification for becoming one of the states of the union. this fact, he said, came fully ascertained, and being so, there could be no doubt the right was clear. it was a right, indeed, which they could not deny, and, as a matter of expediency, it was not worth while to oppose it. he saw no reason why they should call in question the proceedings or the purity of the government of that territory, so as to doubt their return. mr. dayton said that he preferred the formation of the south-western territory into one state, to a division of it into two, and he therefore did not agree with those gentlemen who had advocated the latter idea. the people had requested to be united into one state, and he was for complying with their request, and for taking them at their word, rather than by subdividing to give them a double representation in the senate. mr. sedgwick concurred in opinion with the gentleman from new jersey (mr. dayton); and if any gentleman understood him to say that he did not wish the state of tennessee to be admitted into the union, it must have been an error, for he had no such desire. but he was still persuaded that it was never intended that that territory should have the power of settling the way by which they were to become one of the independent states. what had been said by a gentleman from virginia (mr. madison) of their being in a degraded situation, because controlled by laws which were made by persons independent of them, would not only apply to , , but to six persons. the question was whether they were in a situation in which they could claim to be a state? if they were, they ought to be admitted; if not, they ought not to be admitted. if the idea of the gentleman from new jersey was adopted, they might be admitted at an early period. he had no idea of charging governor blount with improper conduct: he was entitled to his respect. if it was intended that these people should decide upon their own situation, they ought to do it in the way observed in cases directed by the constitution. mr. s. proposed two resolutions--one for laying out territory into a state or states, and another for directing a census of the inhabitants to be taken. it appeared to him that this was the way in which the subject should be considered: they should determine whether the territory should be in one or two states, and before representatives were sent to congress, a census would be taken by authority of congress. words could not, he thought, have rendered more explicit the intention of the contracting parties than the words of the compact; and all this might be done in time for representatives to be sent to the next session of congress. mr. macon said the chief differences in the opinions of gentlemen arose upon a subject which was not before the committee, viz: the number of representatives to which this new state was entitled in that house. the question before the committee was on admitting the territory to be a state of the union. there appeared to him only two things as necessary to be inquired into: first, was the new government republican? it appeared to him to be so. and, secondly, were there , inhabitants in the territory? it appeared to him there were; and, if so, their admission as a state should not be considered as a gift, but as a right. their temporary government (by whose authority the late census was taken) had not only a governor appointed by the executive of the general government, but also a legislative council. to admit this territory as a member of the union, appeared to him as a matter of course. it also seemed as if the executive was of that opinion. the president, having been duly informed from time to time with the proceedings of that territory towards being admitted into the union, if he had thought they had been doing wrong, he would have set them right. it was also his opinion, that if they had passed a law directing a census to be taken, it would have been done exactly in the way the present had been taken. he thought the subject of navigation was settled by the constitution of the united states; the waters in that country would be under the same regulations with all other waters in the union, nor did he think there was any thing in the constitution of tennessee which had a contrary tendency. it appeared clearly to him that every thing had been fairly done, and that they had a right to claim an admission as a member of the union. mr. baldwin said, had he belonged to the territory south of the ohio, he should probably have been for pursuing a different mode of conducting this business, from that which it seems they have thought proper to adopt. he should have thought it desirable, a year or two ago, to have obtained from congress an act pointing out the mode of taking the census, and ascertaining the events on which they were entitled to become a state. he said congress ought also, of their own accord, to have taken up that subject, and made those provisions, though not requested by the territory; and it had always been with surprise he had observed that the first act for forming that territory did not contain those provisions. he thought, as to the principle in this case there could be no doubt. whenever the event happened of their having , inhabitants, as pointed out by law, their right to be a state took place. it was to depend entirely on that contingency; when that was proved to have taken place, they could not be debarred. there having been no mode previously pointed out for ascertaining this fact, only makes it more difficult for the territory and for congress to be satisfied of the fact of their actually having so many inhabitants, but does not affect their right. he thought it best for the house to proceed to examine their census and the evidence which they had thought proper to collect and bring forward in their own way. he was ready to allow that, for himself, he should examine it more scrupulously than he should have done, had it been taken under a law of congress. but he had not understood many objections had yet been made to it. perhaps, on further examination, it will be found fully satisfactory; if so, they must be admitted to be a state as a matter of right. they might have waited longer, and attempted to have formed two states; they have made their election of the other alternative. he thought it wise for congress to avail itself of this opportunity of holding them to what they have chosen, and thus prevent future difficulties and misunderstandings. mr. w. smith said he was glad to find the observations which he made yesterday in some measure sanctioned to-day. he then recapitulated his leading arguments. it was said yesterday by a gentleman from virginia, (mr. madison,) that whilst the people of the territory remained in their colonial situation, they were in a state of degradation; but, he would ask, at whose request they became so? look at their request in the year , as expressed in the cession act. and yet, in the course of a few years, without consulting congress, in consequence of a census taken by their own authority, they proceed to erect themselves into a state, create a new government, and claim to be admitted into the union as matter of right. under their former government their member was admitted to that house; yet, whilst he holds his seat under that government, they have appointed other members to represent them under their new government. the most regular way would certainly have been to have transmitted their request to congress to be formed into a state. congress would then have passed a law for taking a census, have fixed when the territorial system should cease and the state government commence. he thought the business was of considerable consequence, and he was sorry it was taken up in so thin a house. there would certainly arise in a few years other new states in the western country yet uninhabited, which might occasion considerable difficulties. they might make a census and say they had , inhabitants, when they had not half that number. he did not wish to keep the inhabitants of the south-western territory out of the union, but he wished them to be admitted in a constitutional mode. mr. gallatin was of opinion that the people of the south-western territory became _ipso facto_ a state the moment they amounted to , free inhabitants, and that it became the duty of congress, as part of the original compact, to recognize them as such, and to admit them into the union, whenever they had satisfactory proof of the fact. it was objected that, previous to the proof of that fact being given, it was necessary that congress should have laid out and formed that territory into one or more states, and that the proof of their number should have been given under direction and by order of congress, the people not being competent to give the proof themselves. both those objections suppose a construction of the original compact between the people of that territory and the united states, (of the act of cession of north carolina, and of the ordinance of congress of ,) which was inadmissible; for it rendered that compact binding upon one party and not upon the other. it is supposed that that ordinance, whose object it was to establish the principles of a free government, and to ascertain a certainty of admission into the union, had declared that the time when those people were to enjoy that government, and were to be admitted as a member of the union, depended not on the contingency of their having , free inhabitants, but on certain previous acts of congress--in other words, on the sole will of congress. either you must acknowledge that their admission depends solely on the condition of the compact being fulfilled, to wit: their having the number required; or you declare that it rests upon another act, which may be done or refused by the other party; that congress have the power, by neglecting to lay them out into one or more states, or by refusing to pass a law to take a census, to keep them for ever in their colonial state. nor did the strictest interpretation of that contract justify the construction given by the gentleman from south carolina; for the only meaning that could consistently be given to the words, "lay out and form into one or more states," was, that congress had power to fix the boundaries of the territory or territories that were to become a state or states. they could have declared that that territory should be one or two states; but if they had neglected to do it, their omission could not be plead against the inhabitants of tennessee. the power given by that clause to congress was merely to fix boundaries, and to choose whether there should be more than one state; but if they had not made use of that power, there must be one state, and its boundaries were fixed by the act of cession, so that nothing remained now for congress to operate upon. mr. blount said, there was an absolute necessity for the clause which the gentleman last up objected to. persons were daily coming to that territory in great numbers. if the census had been required to be taken in one day all the people who had come into the territory, with the intention to reside permanently there, could by no means have been numbered. it was not intended to give the officers power to take persons in more places than one, nor did he believe it had been done. he undertook to explain yesterday the reason why so long a time was given, but he seemed not to have been understood, which was, the difficulties attending the passage of the wilderness. the gentleman from south carolina (mr. smith) had said, that his arguments of yesterday had been to-day admitted. if the gentleman had supposed that he had admitted them, he was mistaken. that he might not continue under the mistake, he would inform him, that what he had called arguments, were, in his opinion, mere quibbles, such as could only have been expected from a county court lawyer, at the bar of a county court. mr. coit said, that as he had not heard it suggested from any quarter that it would be expedient to divide the territory into two states, he did not think it important to inquire into the powers of congress in that respect. it is declared by the ordinance for the government of the territory, that when there should be sixty thousand inhabitants in any one of the states there they should be admitted into the union. if, then, it is not in contemplation to divide the territory into two states, he considered that the right to be admitted was complete as soon as there was the requisite number within the whole territory. but it appeared to him, that on examining the census and the law under which it was taken, they could not be considered as furnishing proof that there was that number there. he did not pretend to say that any fraud had been committed in the execution of the law, but the law itself was wholly defective. the same man might have been counted in several counties, nay, in every county in the territory, and that without any fraud, but in strict compliance with the law; two months having been allowed for taking the enumeration, and it being enjoined on the sheriffs of the several counties to include in their enumeration all persons within their respective districts within that period. the gentleman from north carolina (mr. blount) seemed to imagine that it would have been impracticable to have followed a mode similar to the one pointed out in the enumeration law of the united states, but he could not see the reason. [he read the law.] mr. sitgreaves said, he felt every disposition favorable to meet the wishes of the people of the south-western territory, and for a reason which had been given, viz: that, as they were our fellow-citizens, it was desirable they should equally participate with us in all the advantages of the general government, and suffer no longer than was necessary the comparative humiliation of a colonial or territorial administration; but, from obvious considerations, he thought it highly important that they should be admitted to the enjoyment of these advantages only in conformity with the promise made to them, and on the terms of the compact entered into jointly by the united states and by them. two constructions of this compact had been contended for; one, that so soon as sixty thousand free inhabitants should be collected within the territory, they should be entitled to a place in the union, as an independent state; the other, that congress should first lay off the territory into one or more states, according to a just discretion, defining the same by bounds and limits; and that the admission of such states thus defined, should take place as their population respectively amounted to the number of free inhabitants mentioned; that is, that the sixty thousand inhabitants could not claim admission into the union, unless their number was comprised within a state whose territorial limits had been previously ascertained by an act of the united states. he inclined to this latter construction, because it was conformable to the letter, and, as he understood it, to the spirit of the instrument. by the act of cession of the state of north carolina, accepted by congress, it is provided that the ceded territory should be laid off into one or more states, and that the people of the territory should be entitled to all the privileges secured to the inhabitants of the territory north-west of the ohio, by the ordinance of . the extent of their privileges, therefore, is to be determined by this ordinance, which may be called their charter. they have no other or greater privileges than the inhabitants of the north-western territory; and it cannot be pretended that these would be entitled to admission into the union as one state, so soon as their whole number shall amount to sixty thousand, because the ordinance itself divides that country into three separate and distinct states, each of which must contain sixty thousand free inhabitants before it can claim to be received. the actual circumstances and situation of the south-western territory evinced the reasonableness and propriety of the construction; it is composed of two settlements, the hoston and the mero districts, separated from each other by the cumberland mountains and a wilderness of two hundred miles in width, which has always been inhabited by the indians, and the soil and jurisdiction of which have been actually ceded to them by the united states, by late treaties; and by an examination of the documents on the table it would appear, that when, agreeably to the act of the territorial legislature, the officers who took the census put to the people of the territory the question whether they were desirous of admission into the union; the inhabitants of the western or mero district almost universally answered in the negative. he would not undertake positively to pronounce on the inexpediency of forming the whole country into one state; but under the circumstances which he had stated, and until they should be satisfactorily explained to his mind, it did appear to him that the interest and the wishes of that people required a division of the territory. it looked somewhat absurd to connect under one permanent government, people separated from each other by natural barriers, by a distance of two hundred miles, and by a foreign jurisdiction. they had been told, by gentlemen who knew the fact, that during the period of indian hostility, the people emigrating to the mero district were obliged to stop five or six weeks at the eastern boundary of the wilderness, until they could collect in companies or caravans of sufficient number and force to pass in safety; the time of hostility may again return, and even a state of peace with indians is not a state of such tranquillity or security as to preclude the necessity of caution and vigilance on the frontiers. the people of the western district seem sensible of the inconvenience of an arrangement so unnatural as the one proposed, and so far as their wishes can be collected from the documents before the committee, they desire as yet to preserve their connection with us in its present mode, and to remain under the territorial government. mr. macon said, he should be as unwilling to agree to the doctrine of the gentleman from new jersey, (mr. dayton,) as he was unwilling to agree to his. as to the people of this territory attaching themselves to any other nation, he should not have thought it could have been suggested. there was no more likelihood of their going over to any other government than there was of any other state doing the same thing. mr. gallatin said, how the resolution on the table, or the doctrine he had asserted, supported the idea that that territory would have a right to separate from the union, he could not see, and he should be glad to be informed. so far from it, his opinion was that if they were a state, they were at the same time a member of the union; that they could not exist as a state without being one of the united states. the only difference of opinion was whether an act of congress was necessary previous to their being recognized as such; and if any doctrine could lead to the conclusion of the speaker, it was that of those gentlemen who thought that congress must form them into a state, several months before they were admitted into the union. in that intermediary situation, whilst declared a state and not one of the united states, they might, perhaps, claim, as an independent state, a right to reject an admission in the union. but those consequences could only flow from the doctrine he was combating; the principle he was supporting was that no previous act was necessary, that there could not be two acts upon the subject; but that one and the same act must recognize them as a state and admit them in the union. mr. blount hoped the original resolution would not be rejected for the sake of the gentleman from new jersey. he did not wish to give up the right to which these people were entitled; though perhaps the law might not pass the senate. mr. harper objected to the mention of the senate, as to what was likely to be done there. he hoped they should adopt the resolution of the gentleman from new jersey. the question was then taken on the original resolution reported by the select committee, and carried by to . the committee rose and the house took up the consideration, when mr. kitchell proposed a resolution in the place of that which had been agreed to in a committee of the whole, as he thought some law should be passed by congress recognizing the territory as a state, before they were admitted into the union. it was negatived; and the original resolution was agreed to by to , as follows: yeas.--theodorus bailey, abraham baldwin, david bard, lemuel benton, thomas blount, richard brent, nathan bryan, dempsey burges, thomas claiborne, john clopton, jeremiah crabb, william findlay, jesse franklin, albert gallatin, william b. giles, james gillespie, andrew gregg, wade hampton, robert goodloe harper, carter b. harrison, jonathan n. havens, daniel heister, james holland, george jackson, matthew locke, william lyman, samuel maclay, nathaniel macon, james madison, andrew moore, anthony new, john nicholas, alexander d. orr, john page, francis preston, john read, robert rutherford, israel smith, richard sprigg, jr., thomas sprigg, absalom tatom, philip van cortlandt, and abraham venable. nays.--benjamin bourne, theophilus bradbury, gabriel christie, joshua coit, george dent, abiel foster, dwight foster, ezekiel gilbert, henry glenn, chauncey goodrich, roger griswold, thomas hartley, thomas henderson, james hillhouse, william hindman, aaron kitchell, george leonard, samuel lyman, francis malbone, theodore sedgwick, samuel sitgreaves, jeremiah smith, nathaniel smith, isaac smith, william smith, george thatcher, uriah tracy, john e. van allen, peleg wadsworth, and john williams. saturday, may . _military establishment._ the amendments of the senate to the bill fixing the military establishment were read. they went to the retaining the whole number of light dragoons and the major general, and directing that men should be enlisted for five instead of three years. the amendment respecting the dragoons being under consideration---- mr. baldwin informed the house that the amount of the amendments of the senate was this, to keep up dragoons instead of , and to retain the major general. it appeared to him that the house, having determined upon these subjects already, would be at no loss to form an opinion upon these amendments. mr. williams hoped that the amendment from the senate would not be agreed to. this house had taken great pains to mature the bill, and he was of opinion that the number of troops agreed to was sufficient for a peace establishment. no gentleman had observed to the contrary; any addition would not only be an augmentation to the great expenses already accrued by the late war, but be a mean of retaining in the army useful citizens, who would be otherwise employed in pursuits of much more benefit to the united states. mr. w. lyman hoped the amendment would be disagreed to. mr. s. smith said, the senate seemed to contemplate these light dragoons, on account of the officers, who were to do duty on horse or foot, as necessity required. from this idea, he would suggest the propriety of agreeing to the amendment. mr. kittera said, the army would be placed so widely from each other, that the horse would prove very useful. mr. giles had no idea of keeping up the horse for the sake of the officers. mr. gilbert was in favor of retaining the whole number of horses. on motion of mr. williams, the yeas and nays were taken, and the amendment was negatived, to . the consideration of the propriety of retaining the major general was next taken up. mr. nicholas could not conceive any use for generals. he believed if the senate had struck out the general they sent them, the amendment would have been a good one. mr. giles hoped they should not agree to the amendment. it would be a commencement of sinecures in the military department. there would be generals without men to command. he believed the bill, as sent from that house, contained its full proportion of officers. mr. s. smith was in favor of the amendment. he said the expense would be no great things, and the present major general would be very necessary in taking possession of the posts. perhaps, at this time, it was essential to keep this man in command, as, if he were discharged, it might create a derangement in our army which might be fatal. the command of three thousand men, it was true, was too trifling for a major general. but, perhaps, as this general had been the victorious means of procuring us peace with the indians, immediately to discharge him would appear like ingratitude, if not injustice. mr. rutherford concurred in opinion with the gentleman last up. mr. w. lyman said, they were not now called upon to reward the services of major general wayne, but to provide proper officers for their army. if the gentleman from maryland (mr. s. smith) were to bring forward a measure of that kind, they should know how to decide upon it. nor did he think the argument for making the office of a major general, because the posts were to be received, had much weight. any other officer would receive them as well as a major general. mr. giles said, he had no personal objections to the present commander of our army; but he considered the present proposition such a breach of principle as he could not agree to. it was the making of an office for a man; as the gentleman from maryland seemed to think the taking possession of the posts the principal business to be performed by him. if the services of this gentleman were necessary on that occasion, he would much rather pass a bill to make him a commissioner for that purpose. all the arguments in favor of a major general were in favor of the man, and not of the propriety of the office. mr. murray said, the gentleman last up must know that the gentleman who had so successfully commanded our western army, was now in the service of the united states, yet he would insinuate that there was an intention of creating a new office. there was no disposition in those who wished to retain this meritorious man in service to create new offices. they were now about to make a regular military establishment; heretofore it had rather been a nominal one. there had been hitherto a major general at the head of our corps, and he thought it would be proper to continue the command. there appeared to him a great deal of danger from the instability of their proceedings, an instability often charged upon a government like ours. he would not attribute this to any other motive than such as were too apt to enter into large deliberative bodies. was it right that when a man had led our armies to victory, and returned, that he should be immediately stripped of his commission? he thought not. it was said that this was done, because the army was reduced; but he believed it was now as large as when general wayne obtained his victory by it, for it was not then more than three thousand men; and yet, because they wished to retain this man in the service of the united states, they were told that they were creating new offices for which there was no necessity. mr. nicholas said, with respect to the instability of their measures, he was ready to take his own share of it as well as that of the gentleman last up, for he never found him vary from one point; he was always desirous to keep up every office which had been once established. mr. n. thought the conduct of gentlemen extraordinary. at one time they were to make our establishment as large as possible, and when more favorable circumstances appeared, they were not to reduce it. where were the benefits of peace, if they were still to keep up our war establishments? gentlemen tell you that the army would be as large now as before the reduction, yet the same gentlemen were opposed to its being reduced to the number now contemplated. this appeared something like inconsistency. mr. n. said, if they did not seize every favorable opportunity of lessening the expenses of government, he believed their constituents would have good reason to complain of their want of attention to their duty. mr. macon said, they ought to legislate on this subject as if there were no army in existence. they had no permanent establishment, as their men were discharged at the end of every three years. he believed our present commander was a very respectable officer, but he could not vote for a major general in the establishment, which he thought unnecessary, because he thought him a deserving man. mr. bourne believed it was not necessary to have any appropriate number of men for a major general to command. it had often been thought that a major general was necessary. he believed they had thought so on former occasions. if any necessity should arise for the militia to be called out to aid the army, such an officer would be highly necessary. he did not think it would be true economy to reject him. mr. gallatin said it was not pleasing to give a vote which was in some degree of a personal nature like the present. he was unacquainted with the gentleman who now held the office of major general in our army, and, therefore, was under no personal influence, and his opinion on the subject was formed upon the information of those in whose judgment on military affairs, he must necessarily confide, as it was a subject he did not understand. it was supposed that a major general was necessary for a war establishment, but not for a peace establishment. he drew this conclusion from that grade ceasing with the war in , and being again introduced in , when the indian war had commenced, and he understood it was more connected with the nature of the service than the number of men. the gentleman from maryland (mr. smith) said that the nature of the service of this summer, required the service of general wayne; but as the act they were about to pass would not take place till the st of october, as it was the opinion of all gentlemen of military knowledge, that there was no necessity for retaining a major general in our reduced army establishment after the posts had been taken possession of, and as the whole summer appeared sufficient for that service, he would vote against the amendment. mr. hartley thought it best to have a major general. the expense was but small, and in case of the militia being called out (as was mentioned by the gentleman from rhode island) a major general would be necessary; besides, to reject him, would have the appearance of forcing this man out of office in an ungenerous manner. on motion of mr. bailey, the yeas and nays were then taken, and the senate's amendment was lost, to . monday, may . _widow of general greene._ the house went into committee of the whole on the petition of catharine greene, widow of the late general greene, for indemnity against the demands of harris and blachford, of london, merchants, on account of a certain bond which had been given to them by general greene, as was said on account of the united states. the following was the report of the committee of claims: "that this petitioner prays for indemnity against the demands of messrs. harris and blachford, merchants, who have obtained a judgment against the estate of the late general greene, for a large sum, in consequence of his being security to the said harris and blachford, for the debt of john banks & co., which debt, she states, was incurred for, and in behalf of the united states; and that general greene gave security for no other purpose than to forward the interests of the public. "on a strict investigation of this claim, the committee find, that in the fall of , general greene was authorized by the department of war to obtain supplies of clothing for the southern army, then under his command; and, not long after, he contracted with john banks, a partner in the house of hunter, banks & co., for such supplies. "in february, , general greene, under authority of the superintendent of finance, contracted with the same john banks, to furnish such provisions as the same army were in want of; both of which contracts met the approbation of his employers. "both these contracts required greater funds than the contractors could command, and the last, which was to supply rations for the army, was near being defeated, because the creditors--for supplies on the former contract--were about to deprive the contractors of their means to fulfil the last. in this situation, gen. greene had before him the alternative of turning the army loose upon the inhabitants, to plunder for their necessary food, or support, by his own credit, that of the contractors. he preferred the latter, and gave, in addition to the security of john banks & co., his own bond to harris and blachford, to secure an eventual payment for articles which had gone to the use of the united states in clothing the army. "john banks received of the united states the whole sum of the contract, but diverted the money from its proper channel, and left general greene liable to pay the sum secured by the bond mentioned above, and another to messrs. newcomen and collet. banks & co. became bankrupts, and, soon after, banks died. "the committee find that general greene, as soon as he was apprised of any possible danger which might accrue to him, took measures to procure some security; but his attempts were ineffectual as to a complete indemnity. it appears he effected some payments, and obtained partial indemnity, but was left finally exposed to a large claim of messrs. newcomen and collet, and this bond about which the present petition is conversant. "against the claim of newcomen and collet, congress have indemnified the estate of general greene, by an act passed april th, . "this act has served as a precedent to the committee, in deciding on the present petition, as there are the same reasons existing for the interference of government now as then; to which may now be added the weight of precedent. "for further particulars as to the merits of the claim, the committee ask leave to refer the house to a report of the secretary of the treasury, made to congress on this subject, the th december, , and which is herewith laid before them. the bond given by gen. greene to harris and blachford for j. banks & co., is dated th april, , for the sum of £ , , s. d. south carolina currency. this sum, by a variety of negotiations and payments, has been considerably reduced; the committee have not been able to ascertain with precision the sum now due, but suppose it to be between eleven and twelve thousand pounds. "the committee are of opinion that general greene gave this bond with the sole and honorable motive of serving, to his utmost ability, the then pressing interest of the united states: and that the salvation of the southern army, and success of our arms in that part of the union, in a great measure depended upon this timely interference of his private credit. "they think the honor and justice of government is pledged to indemnify the estate of general greene, and by paying the sum due to harris and blachford, save a deserving family from indigence and ruin. they therefore report, for the consideration of the house, the following resolution, viz: "_resolved_, that the united states ought to indemnify the estate of the late general greene, for the sum due on a bond, given by the said general greene to harris and blachford, bearing date april , , for the sum of £ , , s. d., south carolina currency, as surety for john banks & co.: _provided_, that it shall appear, upon due investigation, by the officers of the treasury, that the said general greene, in his lifetime, or his executors since his decease, have not already been indemnified, for the contents of the said bond: _and provided_, that the said executors shall make over to the comptroller of the treasury, and his successors, for the united states, all mortgages, bonds, covenants, or other counter securities whatsoever, if such there are, which were obtained by general greene in his lifetime, from the said banks & co., or either of them, on account of his being surety for them, as aforesaid; to be sued for in the name of the said executors, for the use of the united states: and the officers of the treasury are hereby authorized to liquidate and settle the sum due to the estate of the said general greene, to indemnify the same as aforesaid, according to the true intent and meaning of this resolution; and to pay such sum as may be found due on the said bond, out of the treasury of the united states, to the said executors, to be accounted for by them, as part of the said estate." after some debate on this subject, in the course of which the speaker read, in his place, a letter he had received from the secretary of the war department, in consequence of a resolution passed on saturday, calling for a letter which had been written by the late colonel burnett to the late secretary of war, declaring that no such letter could be found in the war office; and mr. coit spoke at considerable length against the claim--at length the question was put and carried in favor of the report, there being members in the affirmative. the committee then rose, and the house took up the consideration, when, on motion of mr. blount, who said he had intended to have made some observations on this subject, but finding the majority so large in favor of the report, he could not believe what he should say would have any effect, the yeas and nays were taken and stood, yeas , nays , as follows: yeas.--fisher ames, abraham baldwin, david bard, lemuel benton, benjamin bourne, theophilus bradbury, richard brent, dempsey burges, thomas claiborne, william cooper, jeremiah crabb, abiel foster, dwight foster, ezekiel gilbert, william b. giles, nicholas gilman, henry glenn, chauncey goodrich, christopher greenup, robert goodloe harper, carter b. harrison, john hathorn, jonathan n. havens, john heath, daniel heister, william hindman, george jackson, john wilkes kittera, samuel lyman, william lyman, francis malbone, john milledge, frederick a. muhlenberg, william vans murray, anthony new, john nicholas, john read, robert rutherford, samuel sitgreaves, jeremiah smith, israel smith, isaac smith, samuel smith, william smith, richard sprigg, jr., john swanwick, zephaniah swift, george thatcher, richard thomas, mark thompson, uriah tracy, john e. van allen, philip van cortlandt, abraham venable, peleg wadsworth, and john williams. nays.--thomas blount, nathan bryan, samuel j. cabell, gabriel christie, joshua coit, isaac coles, george dent, samuel earle, jesse franklin, albert gallatin, james gillespie, roger griswold, william b. grove, wade hampton, george hancock, thomas henderson, james holland, aaron kitchell, matthew locke, samuel maclay, nathaniel macon, andrew moore, nathaniel smith, thomas sprigg, absalom tatom, and richard winn. the resolution was referred to the committee of claims, to report a bill. [the facts, as stated in the course of debate, were as follows: a little time before the evacuation of charleston by the english, in the fall of the year , a number of merchants who had settled there, under british authority, were under the necessity of leaving the city. thus situated, these merchants were willing to dispose of their goods in a way that would secure their money, and enable them to leave the country immediately. john banks knowing of this, and being, it is said, a man of a speculative disposition, determined to avail himself of this offer. he therefore went into charleston, at a time when general greene was lying not far from its walls, and there made a contract with messrs. harris & blachford for goods to the amount of £ , , which were delivered to him under the firm of hunter, banks & co. after banks had made this purchase, he entered into contract with general greene to supply the army with clothes. some time after that contract had taken place, the army was in want of provisions, and the supplies were cut off, and about to fail, when banks came forward and made a contract to supply the army with provisions; but the funds which were to enable him to fulfil this contract, were in the goods he had lately bought, and an interference of his partners and creditors took place. the creditors were afraid if these goods were disposed of for that purpose, their security would be lessened, and his partners were not willing that he should convert their joint property to his own particular benefit--for they, it seems, were to have nothing to do with the provision contract. to surmount these difficulties, security was required. the creditors of banks would be satisfied, if security was given. in this state of things, general greene became security for banks, in his first purchase. banks afterwards received the whole sum of the contract, but diverted the money from its proper channel, and left general greene liable to pay the sum secured by the bond to harris & blachford. the question in the committee was, whether general greene entered into this security with the sole view of obtaining provisions for his army in a time of distress, or whether he had some concern or partnership in the transaction. the following particulars were mentioned, to prove that the security was given for no other purpose than that of obtaining food for his men. the first purchase of banks was made in september, ; the evacuation of charleston took place in december following. banks's clothing contract was made a few days previous to the evacuation; his proposal for the provision contract was made about the same time, but not actually entered into till the th of february, , and not completed till general greene's security was given on the th of april. on the th of may, general greene got a counter security. it could not be seen, as was observed, for what purpose general greene entered into this contract, if it were not for the relief of his army. had general greene been a partner, would he have required security of banks six months after the contract, when business was going on extremely well--when banks was in good credit, and making money, and when no doubt could be entertained of him? it was insisted he would not: but, having no connection with him, he thought it prudent to obtain a counter security. on the other hand, various suggestions were thrown out which had somewhat of a suspicious appearance--such as general greene's forcing his men to buy clothing, &c., of banks, at an exorbitant price, reports in the army, a letter said to be written by the late colonel burnett, who, it appears, was a partner of john banks, intimating that general greene was a partner in the concern, though his name was never mentioned in it; but nothing like proof appeared to the committee upon which to ground any reliance. indeed, if general greene had any concern with banks, it seemed to be a matter which could not be proved, as, in general greene's lifetime, he brought an action against mr. ferry, one of the partners with banks, which was tried at charleston, when every thing in mr. ferry's cause depended on proving general greene a partner; but he failed in doing it, and having failed, it was said to be pretty strong presumptive evidence that it could not be proved; because mr. ferry might have brought a cross bill against general greene, and oblige him to declare on oath that he was in no way interested in the suit, which he did not think it proper to do. the report of the committee was at length agreed to, as before stated, and a bill ordered to be brought in, which subsequently passed. by this decision, between £ , and £ , sterling will be paid out of the treasury of the united states to the executors of general greene. the yeas and nays, on the passing of the bill, stood, to .] friday, may . _amy dardin's horse._[ ] on motion of mr. claiborne, the house formed itself into a committee of the whole on the report of the committee of claims on the petition of amy dardin, who prayed for compensation for a very valuable horse which had been impressed during the war. the report was against the petitioner, on the ground of the act of limitation barring the claim. the case appeared a hard one, as a widow and orphans were in want of the money; and several members having suggested that application had been made before the act of limitation took place, proof of which could be substantiated, the committee rose, and the papers were recommitted to the committee of claims. monday, may . _military and naval appropriations._[ ] the house went into a committee of the whole on the bill providing appropriations for the military and naval establishments; when, on motion of mr. w. smith, the blank for the sum for the payment of the army was filled with $ , . mr. w. smith proposed to fill up the next blank, for the subsistence of the officers of the army, with $ , . mr. gallatin said, he was not ready to vote for this object. it had been usual to appropriate the subsistence of the officers and non-commissioned officers and privates all in one sum. he did not know what were the separate calculations. mr. w. smith believed that it had been usual to put the two subjects together heretofore, but the secretary of war had suggested the propriety of placing them under different heads. it was therefore done. mr. gallatin said, when he objected to this plan of putting the two objects together, it was not merely on account of the arrangement, but because he did not know the amount calculated for the different descriptions. he knew, however, the rations were calculated at cents. he would move to fill the blank with cents, which would be two-thirds of the amount proposed. he would give his reasons for thus filling the blank. it would be found, by a communication from the secretary of the treasury at the commencement of the session, that, in the estimate for the military department, rations were charged cents each, making the whole subsistence for , men $ , ; notwithstanding the nominal army establishment had been reduced one-half, the total amount of expense was estimated as high as before. the items upon which an increase had been made, were subsistence, hospital, ordnance, and quartermaster's departments, and protection of frontiers. it would be found that, in the second estimate of the secretary, lately made, rations were estimated at cents each, which made the whole amount of subsistence $ , . this difference in the estimate led the committee of ways and means to an inquiry into the business, because, as the nominal establishment was decreased from , to , men, they had hoped there would have been some decrease of expense also. they received for answer, that rations could not be contracted at detroit for less than cents each; but though this, by the contract, was the price of rations at that post, they could not suppose they would cost the same at the other posts. it also appeared, from the information received from the secretary of the treasury, that the contract which had been made, was upon these terms--to furnish rations either at detroit at cents, or at pittsburg at cents, the place of delivery being at the option of government. it would be seen that there was a difference betwixt those two prices of cents; and he would ask whether any gentleman in that house believed that it would cost cents per ration to transport them from pittsburg to detroit? he did not think that transportation would, on an average, cost cents. the distance by land was not miles; and water carriage would reduce it to . mr. w. smith said, if agreeing to this motion would save the money, it would deserve attention; but, if they were to make the appropriation so small as to embarrass government, it would be much worse than if they were to vote for a little too much. there would be a certain number of men who must be fed, and he thought they might rely upon the administration's not giving more for rations than was necessary. but, if the sum voted was too small, what would be the consequence? the rations must be got, be the prices what they may; the men must be fed. difficulties would arise if the fund appropriated should prove inadequate. he did not see that there would be any real saving by reducing the sum appropriated. mr. bourne hoped the blank would be filled up with the sum proposed by the gentleman from south carolina. it had been stated that rations might be purchased at pittsburg for cents, but they could not be bought for less than at detroit, and he thought they could not calculate upon any other price than that, as it was uncertain whether or not the contract would be fulfilled; and if it failed, and the secretary of the treasury was obliged to purchase at detroit, if they calculated the rations at cents only, he would not be able to purchase the necessary provisions for their men; but if, on the contrary, cents were agreed to, there would be enough in any case, and if the ration could be bought for cents, he did not fear that the money would be expended unnecessarily. mr. venable said he should not feel himself justified in appropriating more than was necessary for the object before them; for, if they were not to be guided by a proper estimate, they might as well at once give an unlimited power on the treasury. all the expenses could not be estimated to be made at detroit. if one-third of our men were kept at detroit, he should think it a large number. why, then fix the price as if the whole army was to be kept there? and, even in that case, cents would be a large appropriation. why, then, embarrass themselves by making a larger appropriation than was necessary? the army would be extended on the whole frontier, and at some places rations would be bought cheaper than at pittsburg. mr. dayton (the speaker) observed, that the gentleman from pennsylvania (mr. gallatin) assumed as undeniable, and established as the foundation of his arguments and objections, what he did not only not admit, but absolutely denied, viz: that the rations of provisions would cost the united states more when delivered at detroit, than at any other post. he believed there were two or three others at which the price would be higher than at detroit, and mentioned michilimacinac in particular. the gentlemen who were for reducing this item of appropriation, had referred to the contract which had been made some time since, and had, at the same time, acknowledged the extraordinary advance in the price of the necessaries of life, even in the interior of the country. the latter event, said mr. d., was of a nature to excite much fear that the contract would be thrown back upon the united states, owing to the inability it would create in the individuals to fulfil it, and ought, therefore, to prompt congress to guard against such an exigency, by a more ample provision than would otherwise have been requisite. mr. w. smith said there was one fact which he forgot to mention. the secretary of the treasury informed the committee of ways and means that the contractor would lose money by the contract to deliver the rations at cents at pittsburg, and it was possible, therefore, that it might not be fulfilled. gentlemen say--why provide the money if it be not wanted? they seemed to mistake the business; the money was to be borrowed, and if not wanted, it would not be taken. no more would be expended because there was more than sufficient appropriated. there would be no money lying unemployed in the treasury. mr. gallatin believed the gentleman from south carolina (mr. smith) would not deny that his information was correct. the contract was made to deliver the rations either at pittsburg or detroit, at the option of government. to calculate the whole number of rations at cents, was considering the whole army at detroit; and, though it be true, that there be one post more distant than detroit, yet, the greater number were far nearer, and consequently, where provisions would be got cheaper. therefore, considering the price at detroit to be the general price, was allowing too much. this, he believed, would not be controverted. mr. nicholas said, he should be glad to know what was the price of rations in the atlantic states. one half of the establishment would be upon the eastern waters, and, therefore, the money necessary to be appropriated would depend, in some degree, upon the price of rations there. he thought cents would be a full average price for the whole. mr. havens said, that if they were to fix the price too high, it might produce a combination amongst the contractors to advance the price--as he believed there was a greater likelihood of combination than competition amongst them. he knew this was no reason why they should fix the price too low, but he thought it was a consideration which should lead them to vote for the proposition of the gentleman from pennsylvania. the original motion was put, and negatived, to ; and then mr. gallatin's, to fill the blank with $ , , was put, and carried. mr. w. smith moved to fill the next blank, for the subsistence of non-commissioned officers and privates, with $ , , which was calculating the rations at cents each. the question was put, and negatived, to . mr. gallatin then moved to have the blank filled with $ , , which was calculating the rations at cents each. mr. dayton hoped that the sum named would not be agreed to; if it were, he believed that the soldiers of the army would not be subsisted. he was satisfied that gentlemen who proposed and advocated so scanty and inadequate sums had the same views as he had; but he was, nevertheless, convinced, that so far from promoting economy, they would eventually produce profusion. mr. dayton concluded with saying, that he did not wish to appropriate lavishly, but his sole aim was to avoid any of those serious consequences which would inevitably flow from an ill-judged parsimony; and he should sit down and console himself under any event, with the reflection, that he had discharged his duty. mr. w. smith moved to fill the blank with $ , , which was carried, to . on motion of mr. w. smith, the blank for forage was filled with $ , , and that for clothing was filled with $ , , without debate. he proposed to fill the blank for providing horses for cavalry, with $ , ; when mr. blount observed, that he thought it unnecessary to provide for the purchase of horses, when they had resolved upon reducing the number of troops. mr. gallatin said he would just notice, that when the full number of horses was kept up, the appropriations for clothing were the same as now, and those for horses were less. the former estimate was $ , for horses; now, $ , ; so that the more they reduce the army, the greater was the expense. mr. macon believed, there were as many horses now in the service as would complete two companies, and they could not, with any propriety, calculate upon one-half dying. he moved to strike out the item altogether. the motion was put and negatived, to . mr. havens said, he did not vote for striking out the item altogether, as he supposed some money would be wanted, but could not think so much as had been mentioned was necessary. the motion for $ , was put and carried, to . on motion of mr. w. smith, the blank for bounty was filled with $ , , and that for hospital department with $ , , without objection. he also proposed to fill the blank for the ordnance department with $ , , when mr. gallatin said, that this sum was $ , more than the former estimate; $ , of which was owing to an increase of rent. the other additional item of $ , was for contingent expenses; but, as they had a distinct head for contingent expenses he thought that the contingencies would be best, all of them, placed under that head. he therefore moved to have the blank filled with $ , . mr. williams proposed $ , , which was carried. mr. w. smith proposed to fill the blank for the indian department with $ , . mr. gallatin said, it would be recollected that they had already made two appropriations under this head; the one for establishing trading-houses with the indian tribes, the other for carrying into effect several treaties. on inquiry what reason there was for this appropriation, he could only find one, viz: that a treaty was expected to be held in georgia, at which , indians were to be present. he had supposed this expense was to have been borne by georgia, but it was alleged that a part of it would fall on the united states. the motion was put and negatived, to ; when mr. w. smith proposed $ , . he would mention, that the secretary of war had been called upon to give a reason why so large a sum should be appropriated; when they were told of the treaty which the gentleman from pennsylvania had mentioned, and that it would be necessary to have a large store for the purpose of feeding and clothing the indians who attended it. the motion was then put and carried, to . mr. w. smith moved to fill the blank for the quartermaster's department with $ , . mr. gallatin said, it would be remembered that in the estimate at the opening of the session, this item was calculated at $ , . the reason given for this advance, was, that the expense of removing stores, ordnance, &c., to new posts, would be very considerable; but, it would be recollected, that $ , only were appropriated for that purpose in the time of war, when the army was liable to be removed very often. the present estimate was for a peace establishment, when their men, once removed to the new posts, would be stationed; and the appropriation, instead of for , men, was now only for , . he moved to insert $ , , instead of $ , . mr. blount said, he supposed the taking possession of the posts was contemplated when the first estimate was made. it was then known the british had stipulated to surrender them on the st of june. mr. w. smith said, it was not certain when the first estimate was made, whether that house would have ratified the treaty; and, if not ratified, the posts would not have been got. the increased calculation was owing to the expense in transporting ordnance, stores, &c., to the posts. mr. isaac smith said, it would require more cannon for one of those posts, than were required by all the army. mr. blount said, they had had sufficient proof to lead them to believe, that the president did not think that house had the power mentioned by the gentleman from south carolina, and, therefore, he doubted not but the first estimate was made with reference to the expense of taking possession of the posts. the motion for $ , was put and negatived, to ; when $ , was put and carried. mr. w. smith, moved to fill the blank for contingencies of the war department with $ , ; which was carried without opposition. he then proposed to fill the blank for the defence and protection of the frontiers with $ , . mr. gallatin said, he certainly wished the frontier to be protected, but he could not think so large a sum necessary for that purpose. the sum last year appropriated was $ , ; and now we had peace with the indians, which was secured not only by a treaty with them, but by treaties with great britain and spain, he could not account for an increased expense. the motion for $ , was put and negatived; $ , was then proposed and carried, to . mr. w. smith proposed to fill the next blank, for the completion of the fortifications, &c., at west point, with $ , . mr. nicholas inquired if there was any law on this head? mr. w. smith said, there was an act to authorize a provision for this purpose, but that act had expired. he believed, however, it might properly come in there. this expense, he was told, was necessary to make the posts tenable, and that if no money was expended, the fortifications would be lost. he believed this item might properly be considered as a part of the military establishment. mr. nicholas said, he did not object to the propriety of the expense, but to the manner of introducing it. it would apply to new york as well as west point. he considered the admission of west point as the admission of a principle to which all the surplus appropriations might be applied. all the fortifications, he said, were in the power of the executive; but, as they had had a committee appointed on the business, whose report they had considered, he thought they should act consistently. he therefore moved to strike out the clause. mr. williams hoped this item would not be struck out, and that the president would be enabled to extend aid to the fortifications at new york; if not, the works would go to decay. mr. van cortlandt said, that fortifications ought to be attended to, and that he should vote for them. mr. giles hoped the motion would prevail. there had been a committee most of the session, to consider the subject of fortifications. if these fortifications stood in need of repair, the president should have given the information to that committee. he thought the item improper in the present bill. mr. gallatin believed the gentlemen from virginia were mistaken. the committee which had been appointed was to consider the fortifications of our harbors only. the works at west point were of a different description, and the estimate included not only the completing of the fortifications, but the building and repairs of barracks and stores which had been destroyed. the present item could not extend to fortifications in general, as had been apprehended; for, though the secretary of the department does not confine the money appropriated to one object, to that particular purpose, yet, he cannot expend it on any object which was not contained in the act of appropriation. he moved to add, "magazines, store-houses, and barracks." agreed to, and also the sum. mr. w. smith then moved to fill the blank for the fortification of forts and harbors with $ , . mr. gallatin said, this item he should move to strike out. a committee had been appointed, and had reported on this subject, and that it was not necessary to attend to it at present, as there was a surplus of $ , unexpended. if they were to agree to the present sum, it would be appropriating an additional sum of $ , for the same object; he hoped, therefore, that it would be struck out. mr. w. lyman was in favor of striking it out. mr. williams hoped it would be agreed to, on the ground of the necessity of some attention being paid to the works at new york. mr. dayton was in favor of striking out this item altogether, as there really was not money to spare for objects not essential. if any particular harbor had been, or could be mentioned, the committee might better be enabled to judge whether it would be fit, at this time, pressed as they were for resources, to make an appropriation for fortifying it, and how much. but, as he knew of none, and believed there were no such, he should certainly be opposed to appropriating a single shilling for this purpose. he meant not to say, that there were not ports in the united states which might be advantageously fortified, but only, that this country was not yet in a situation to justify their encountering such an expense, especially as it did not appear to be immediately necessary. the motion for striking out was put, and carried. mr. w. smith moved to fill the blank for the pay of officers, seamen, and marines, with $ , . mr. nicholas hoped this item would be struck out. it was certainly an expense for which there was no occasion. he did not wish to see men raised when they could be of no service. the frigates, he said, could not be fit for service before the next session. he hoped, therefore, no opposition would be made to the striking out of the clause. mr. w. smith said, they had authorized by law the building of three frigates, and it was wished that they should go into service the present year. if the whole sum was not appropriated, there would certainly be a necessity for a part of it. mr. nicholas moved to strike out the item as it stood, and insert, "the pay of the captains of three frigates." mr. macon believed these were the only officers at present appointed. mr. havens wished gentlemen to say why these captains should be paid at all. he believed that building of ships was not their business, and that these places were at present mere sinecures. he should therefore vote against the amendment. mr. w. smith said, it would be necessary to add subsistence as well as pay of three captains, and moved to fill the blank with five thousand dollars; which, after a few observations, was agreed to. on motion of mr. w. smith, the blank for military pensions was filled, without opposition, with $ , . the committee then rose and the house entered upon the consideration of the amendments which had been made, when all were agreed to, except that relative to the subsistence of the non-commissioned officers and privates.[ ] wednesday evening, june . mr. j. smith, from the committee appointed to wait upon the president of the united states, to notify him of the intention of both houses to adjourn on this day, reported his approbation thereof. the business before the house being finished, a message was sent to the senate, to inform them that the house was ready to adjourn. whereupon, after waiting some time to receive any answer that might be sent thereto, without receiving any-- the speaker adjourned the house until the first monday in december next. index to vol. i _acts of congress._--propriety of limiting the period of their operation, note, ; safe-keeping of, . _adams, john_, elected vice president in , ; voted for as president in , ; in , ; addresses the senate on taking the chair as vice president, ; vice president u. s., , . _address, inaugural._--washington, . _address of the friends in pennsylvania, &c._, urging the discontinuance of the slave trade, . _address of house to president._--in committee, on answer to the president's address; clause respecting the western expedition against the indians under consideration, ; alarm occasioned by the greek treaty, ; secret articles thus early, ; sufferings of the people of georgia, . encouraging navigation considered, ; too early for the house to commit itself, ; mode of expression might conduce to the exclusion of foreign bottoms, ; expressions of the president, ; amendment proposed, ; exclusion ruinous to southern states, ; the words of the report and amendment, ; not be hasty to declare all exports shall be in american bottoms, ; tonnage duties paid in georgia, ; a substitute proposed, ; no reason to think the house will be committed by adopting the address, ; two modes of answering the address, ; amendment lost, . _answer to the presidents speech_, debated, ; _note_, ; the house should not bow so much to the president as to approve of his proceedings without knowing what they were, ; he says his policy in regard to foreign nations is founded in justice; we intend to convey a general sentiment of approbation, ; the amendment proposes substantial approbation, ; the distinction is trifling, ; the mission of mr. jay should not be approved till we know his instructions, ; better withdraw the motion than to bring it forward at such an expense of temper, ; motion withdrawn, ; amendment moved relating to self-created societies, ; an excitable expression, ; self-created societies of the country, ; as improper to pass a vote of censure as one of approbation, ; the conduct of these people had tended to blow the insurrection, ; objected that these societies will acquire importance by a vote of censure, ; amendment of no weight, ; leave the societies to their own conscience, ; this declaration from the house will tend to discourage democratic societies, ; persons most violent against the excise laws had been equally so against the insurgents, ; the president did not want them to intermeddle with the societies, ; the societies had produced western insurrection, ; the effects of the societies, ; the societies composed of patriots, ; amendment can answer no purpose but that of disturbing the public peace, ; the evils arose from the excise laws, not from democratic societies, ; the democratic societies in a great measure originated the late disturbances, ; misinformation existed, ; amendment lost, . _answer to president's message to st session of th congress_, considered in the senate, ; nothing should be contained in it such as to force the senate to precipitate decisions, ; _note_, ; two clauses objectionable; our situation is not in every way auspicious, ; nothing reasonably objectionable, ; some members could not vote for the address without palpable inconsistency, ; every article of the treaty objectionable, ; the term "firm" applied to the executive improper, ; the ratification of the treaty in all its aspects is advisable, ; the objections considered, ; the clauses record a fact, ; further consideration of the objections, . _answer to president's speech, st session of th congress_, considered in the house, ; practice of addresses disapproved, ; practice coeval with the constitution, ; moved to strike out certain words, ; clause goes too far, ; the confidence of a part of the people was diminished, ; motion denies confidence of the house and the public in the president, ; such a thing was once supposed impossible, ; what are the facts? ; defence of the president, ; recommitted, . _african slaves._--motion to bring in a bill relative to their importation, . see _duties on imports and slavery_. _algerine war_, report of the committee on, ; resolution to build four ships of forty-four, and two of twenty guns considered, ; cannot be done in a year, ; two points to be considered--do the algerines act from their own impulse in this matter? if so, they can be bought, ; if excited by britain, they cannot be bought, ; there is danger of a british war from fitting out the ships, ; the combined powers would regard their equipment as an opportunity to pick a quarrel, ; the ships would be too small to be important in europe, ; british would attempt to search them, hence a quarrel, ; bribery alone can purchase security from the algerines, ; not a match for the algerines, ; harbors for american ships in europe, ; views on the subject, ; no security if we buy a peace, ; an armament urged, ; britain is the cause, algiers the instrument, ; this expedient unlikely to answer the purpose, ; competency of the ships examined, ; the charge against britain unfounded, ; this country not in a state for war, ; _note_, ; six vessels sufficient, ; the bill regarded as affording protection to commerce against the algerines, and as the foundation of a permanent naval establishment, ; various objections urged to this view, ; the question is simply whether our commerce requires protection against the algerines, and whether this is the best course to protect it, ; these points considered, ; objections to the bill reviewed, ; argument against a naval establishment considered, ; passage of the bill, . _allegiance, foreign_.--see remarks of madison and jackson, and . _amendments to the constitution_.--application of the legislature of virginia for a convention to consider defects, and report amendments, ; debate, ; this application should remain on the files until proper number of applicants come forward, ; any subject can be referred to a committee, ; the propriety of committing it doubtful, ; congress has no deliberative power on this occasion, ; the application of a state should be respected and regarded, ; it should be entered at large on the files of the journal, ; so ordered, . _proper mode of amending considered_, ; proposition to insert after the words "we the people," in the first paragraph, a brief clause, ; not the proper mode of amending the constitution, ; it should be done by supplement, ; moved to amend by a resolution declaring, "that the following articles be proposed as amendments," &c., ; form of less importance than substance, but there is a neatness and propriety here in incorporating articles, ; method proposed by the resolution incompatible with the constitution, which requires amendments to form a part of the constitution, ; all amendments should stand separate from the constitution--see precedents, ; supplementary form most desirable, ; by incorporation the original instrument may be entirely gone, ; can the mode make any possible difference, ; how can amendments be incorporated, ; report of committee founded on recommendation of state conventions, ; the original constitution should remain inviolate, and not be patched from time to time like joseph's coat, ; _magna charta_ never altered by incorporation of amendments, ; arguments for incorporation considered, ; motion lost, ; see _note_, . _freedom of conscience considered_, ; proposition to insert the words, "no religion shall be established by law, nor shall the equal rights of conscience be infringed," ; the words liable to a wrong construction--have a tendency to abolish religion altogether, ; amendment unnecessary--congress no authority to make religious establishments, ; many sects think they are not well secured, and the effect of amendment will be conciliatory for the new government, ; some states had desired it, ; reason thereof, ; experience of rhode island, ; apprehensions of the people, ; result, . _right of instruction considered._--on a motion to insert the words, "to instruct their representatives," an amendment proposed, ; arguments against the right, ; its propriety in this country, ; if our constituents have a constitutional right to instruct, we are bound to obey, ; the words are calculated to mislead by conveying the idea to the people that they have a right to instruct, ; duty of a representative, ; dangerous tendency of the doctrine, ; what may be the consequence of binding a man to vote according to the will of others in all cases, ; arguments in favor, ; this amendment is of a doubtful nature, and will have a tendency to prejudice the whole system, ; if sovereignty resides with the whole people, they cannot, in detached bodies, contravene an act established by the whole, ; the clause would not bind representatives, ; it will operate inconveniently to the more distant states, ; under its adoption, one member as good as many, ; no law of the house would be of force if a majority were instructed against it, ; subversive of the principles of the constitution, ; must members violate the constitution if instructed, ; objections further considered, ; no instruction should have binding force, ; right of state legislature to instruct the house opposed, ; absolute necessity of adopting the amendment, ; no right of obligation claimed for instructions heretofore, ; constitutions of several states recognize the right, ; motion lost, ; another motion, . _amendments_ proposed in the senate relative to the judiciary power of the united states, ; do. passed in senate, . ames, fisher, representative from massachusetts, , , , , , , ; on duty on molasses, ; on duty on hemp and cordage, ; moves duty on barley and lime, ; remarks on tonnage duties, ; remarks on tonnage duties, ; on the scale of duties on imports, , , ; would make no bargain or compromise relative to duties on imports, ; further remarks, , ; opposes the motion to lay duty on african slaves, ; thinks a limitation of the impost bill injurious to public credit, ; further remarks, , ; on the admission of rhode island, ; on the president's power to remove officers, ; on the organization of the treasury department, ; on the compensation of the vice president, ; on the right of instructions, ; on the location of the seat of government, ; further remarks, ; on manner the secretary of the treasury shall make his report, ; on the discrimination between foreign and domestic debts, ; on discrimination of public creditors, ; moves to strike out "potomac," and insert germantown as seat of government, ; on excise officers, ; further, ; on the commitment of the bill for a bank of the united states, ; do. speech on the bank, ; on report of secretary at war, ; on the bill for the encouragement of the cod fisheries, ; on attendance of secretary of war, , ; on discharging committee on defeat of st. clair, ; on petition of warner mifflin, ; on official conduct of secretary of treasury, ; on the commerce of the united states, ; on fighting the algerines, ; in favor of taxing salt, ; urges duties on manufactured tobacco and refined sugar, ; on the advance of money to france, ; on an increase of the army, ; on raising a force for protection of s. w. frontier, ; on the president's speech, ; on resolutions of thanks to general wayne, ; on the renunciation of nobility for citizenship, ; on reference of letter of secretary of war, , ; on the execution of the british treaty, . amy dardin's horse, claim for, ; _note_, . _apportionment bill, see_ ratio of representation; veto of, ; action of the house on, . _appropriations_.--bill for the appropriations for considered, ; various amendments proposed, ; bill recommitted, . _the right of congress to withhold_ appropriations from existing establishments considered, ; _note_, ; moved to strike out all appropriated for the officers of the mint, ; such motion cannot regularly be brought forward, ; the bill is conformed to the state of the public engagements, ; an investigation should be made on an independent footing, ; a discretionary power in the house to appropriate or not, ; when legal establishments are made, neither branch has a right to withhold its assent to appropriations conformable to the public engagements, ; illustration, ; the house is not to pass an appropriation bill as a matter of course, ; amendment agreed to, ; in the house, moved to strike out all appropriated to the mint, ; motion to strike out an appropriation for the purpose of bringing the policy of a law into discussion, is repugnant to legislative duties, ; doctrine of discretionary power not correct, ; no appropriation should obtain sanction unless the house were convinced of the propriety of the law, ; otherwise the house becomes a mere office for registering edicts, ; house has no right to obstruct the operation of the laws while they exist, ; otherwise, the house has a right to refuse an appropriation to pay a just debt, ; a constitutional view, ; mode of getting rid of an establishment by refusing appropriations not the constitutional one, ; expenditure of washington's administration, _note_ . _the bill providing appropriations_ for military, &c. establishments considered, ; debate on the value of rations and the amount appropriated, ; the army had been reduced, but not the expenses, ; various sums proposed for the gross amount for different objects, ; other items considered, ; _note_ . armstrong james, votes for, as vice president, in , . armstrong james, representative from pennsylvania, , . _army, memorial of officers of_, . _army, reduction of_--resolution for the appointment of a committee to bring in a bill for the reduction of the united states military establishment considered, ; reasons and necessity of the motion, ; expenses, charges, and increase of the war department, ; _note_, ; the protection of the frontiers considered if the army is disbanded, ; amount of reduction suggested, ; expense of militia expeditions, ; improper time to disband the army when negotiations of peace are going on, ; been warring with our finances to keep up an army, ; dangerous so suddenly to alter the system, ; strange statements of members considered, ; referred to committee of the whole, ; calculations examined, ; circumstances requiring a force, ; history of the frontier wars, ; superiority of regular troops over militia shown, ; case of major adair, ; successes of clark and sevier, ; improper to take militia to fight indians, . improper to adopt the motion under the present circumstances of the country, ; former law gave president power to exercise his discretion, ; have circumstances so changed as to render it proper for the legislature to interfere? ; the great object of the additional armament is peace, ; cannot rely upon the backwoods riflemen to turn out as often as wanted, ; the president has practised economy in organizing the troops voted for, . the motion only goes to prevent the raising any more troops, it does not disband a man, ; militia always more spirited soldiers, and fitter for fighting the indians than regulars, ; experience with militia, ; no peace can be obtained from the indians unless dictated by british agents in canada, ; any immediate alteration of the system dangerous under present circumstances, ; the spirit of the motion in regard to the prevention of standing armies is good, ; the reduction of the military establishment will neither put an end to the savage war, nor to the enormous expense, ; consider the state of the exposed parts of the union, ; these people demand the protecting arm of government, ; commenced wrong in warring with the indians, ; if public officers have misapplied the public money, the constitution pointed out a mode to punish them, ; the defence of the frontier is of superior concern to the redemption of the public debt by savings to be made by a reduction of the army, ; a particular plan is set in operation, and it should be tried, ; confidential communications referred to, ; this protection of the frontiers is a test of the government, ; this indian war differs from any other, ; not sufficient information respecting the prospect of peace to warrant a reduction of the army, ; any abuses in the war establishment are insignificant, ; regular troops grow experienced, and by a line of forts trade can be cultivated with the indians, ; the most important question before the house--on its decision are suspended the hopes of the people for peace and their fears of a standing army, ; the principle of keeping up standing armies, though highly obnoxious to the people, has not been equally so to the government, ; effects of standing armies, ; much deliberation is not necessary to form an opinion of military establishments, ; the arguments of the opponents lead to four points, ; these points considered, ; although a war establishment is objectionable, this system should not be arrested at the moment of its efficiency, ; a standing army is impossible so long as this house holds the purse-strings, ; motion lost, ; further considered, . _the pay of soldiers proposed_ to be increased from three to four dollars per month, ; motion to add a fifth dollar, ; no proportion between the wages of ordinary labor and that of military service, ; it was justly due, ; no reason for this increase of wages, ; better to increase the rations, ; six dollars had secured some of the most respectable kind of people in pennsylvania, ; further considerations offered, ; motions withdrawn, . _bill to increase the army_, lost, ; bill to increase the military force and to encourage recruiting, considered, ; principle of the bill wrong, ; is it proper to intrust the president with a discretionary power to raise an army of ten thousand men owing to the particular state of the country? ; if we have war, it is economy to be prepared beforehand, ; no danger to trust the president, ; the force can be discontinued at our pleasure, ; it would involve the country in useless expense, ; the interests of the country promoted by vesting the president with this power, ; what would be the consequence if he cannot make preparation when he sees the war approaching, ; no such immediate prospect of war as could induce the house to violate the constitution, ; under the constitution one branch of the government raises an army, and the other conducts it, ; it encroaches upon a salutary principle of the constitution, ; bill rejected, . _amendments of the senate_, fixing the military establishment considered, ; number of troops sufficient without this amendment, ; amendment to keep a larger number of troops, negatived, ; moved to retain the major general, ; question debated, ; lost, . _arts useful_, to promote progress of, . ashe john baptist, representative from north carolina, , , . _assumption of state debts.--see_ treasury, report of secretary of. b bailey theodore, representative from new york, , , . baird david, representative from pennsylvania, . baldwin abraham, representative from georgia, , , , , , , , ; on the practicability of collecting duties, ; on organization of treasury department, ; on the preparation of estimates by the secretary of the treasury, ; on the compensation of the president, ; further remarks, ; on power of congress to interfere with slavery, ; presides in committee of the whole, , , , ; on memorial of officers of navy, ; on vacancy in the presidency, ; on ratio of representation, ; on the meeting of the electoral college, ; on the preparations for the algerine war, ; on admission of the delegate south of the ohio, ; on a salary for members of congress, ; on a stenographer for the house, ; on post-roads, ; on rights of the house relative to treaties, ; on the admission of tennessee, . _bank of the united states._--on the passage of a bill from the senate to incorporate the subscribers to the bank of the united states, ; recommittal moved, ; various objections to the bill, ; no argument in favor of a bank can be deduced from great britain, ; no necessity for a bank, ; plan unconstitutional, ; government has power to borrow money and therefore had a right to create capital to facilitate it, ; its operation benefits all parts of the union, ; bill should be recommitted as too important to pass without discussion, ; other objections urged, ; clause of constitution respecting monopolies refers to commercial monopolies, ; no sufficient reason for recommitment, ; fault of members if they have not offered their objections, ; motion for recommitment lost, ; put on its final passage, ; advantages and disadvantages of banks, ; is the power of establishing an incorporated bank vested by the constitution in the legislature of the united states? considered at length, ; rules of interpretation, ; clauses upon which constitutional power is based, ; general welfare clause, ; various answers to it, ; former bank no precedent, ; this is not a bill to borrow money, ; the clause, "all laws necessary and proper," &c., does not give unlimited discretion to congress, ; the government is of limited and enumerated powers, ; consequences of considering that the power to borrow authorizes the creation of means to lend, ; various objections urged, ; distinction between a power necessary and proper for the government, and a power necessary and proper for executing an enumerated power, ; contemporary expositions of the constitution, ; if the power is in the constitution, its immediate exercise is not essential, ; motion to recommit lost, ; bill put on its passage, . little doubt of the utility of banks, ; constitutional question examined, ; may congress exercise any powers not expressly given in the constitution but deducible by a reasonable construction of it, and will such construction warrant the establishment of a bank? ; the doctrine of implied power has been a bugbear to many, ; danger of implied power does not arise from its assuming a new principle, ; not exercising the powers we have may be as pernicious as usurping those we have not, ; if some interpretation of the constitution may be indulged, by what rules is it to be governed, ; congress may do what is necessary to the end for which the constitution was adopted, if not repugnant to natural rights or reserved powers, ; as the bank is founded on the free choice of those who use it, and highly useful to the people and government, a liberal construction is natural and safe, ; a presumption in favor of its conformity to the constitution, ; necessity of a bank to other governments, ; if war should suddenly break out here, is congress to provide for it? ; objected, that necessity is the tyrant's plea, ; how does congress get the right to govern the western territory, ; is the establishment of a national bank a violent misinterpretation of the constitution, ; are corporate powers incidental to those which congress may exercise by the constitution, ; congress may exercise exclusive legislation in certain places--of course establish a bank, ; the preamble to the constitution warrants the remark that a bank is not repugnant to its spirit and essential objects, ; congress may exercise all necessary powers, ; constitutionality never before doubted, ; the whole business of legislation is a practical construction of the powers of the legislature, ; immense difficulties to be surmounted on all important questions, ; whenever a power is delegated for express purposes, all the known and usual means for the attainment of the objects are conceded, ; if banks are among the known and useful means to facilitate and effectuate the ends of government, the argument is irrefragable and conclusive to prove the constitutionality of the bill, ; the utility of banks, ; answer to various objections, ; silence of the people is presumptive that they regard the measure as constitutional, ; every power necessary to secure the great objects of the constitution must necessarily follow, ; the power of removability had been construed, it was as important as the present, ; numerous objections considered, ; the expediency of banks considered, . latitude in construing the constitution to be reprobated, ; bill will interfere with state rights, ; arguments drawn from implication considered, ; that banks may exist without a charter reprobated, ; construction of powers considered, ; the powers relative to finance do not warrant the adoption of any powers thought proper, ; power over western territory had reference to property already belonging to the united states, ; necessity of proposed institution denied, ; general welfare clause, ; european banks, ; facility of borrowing will involve the union in irretrievable debts, ; a geographical line divides friends and opponents of the measure, . is congress vested with power to grant privileges contained in the bill? considered, ; what rights will this company enjoy in this new character that they did not enjoy independent of it, ; the bank must be a legally artificial body composed of these rights, ; is not this simple power fairly to be drawn by necessary implication from those vested by the constitution in the legislative authority? ; not express but necessarily deduced, ; peace is preserved by being always prepared for defence--this is a duty of congress, but it must borrow money to secure it, which a bank can aid, ; banks only are reliable for borrowing money, ; a national bank is the necessary means for this end, ; numerous powers have been exercised which were deduced by implication, ; if power was given to raise an army, the making provision for all the necessary supplies and incidental charges was included, ; quotations from the federalist, ; some objections to a bank considered, ; no preference shall be given to one part of the union over another, not an objection, ; this clause inserted for a particular purpose, ; expediency of a national bank, ; divisions of opinion in philadelphia, ; instances of implied powers exercised, . members vary widely in their opinion of the direction of the government, ; the continental debt has travelled eastward of the potomac, this law is to raise the value of that paper, ; implication a serpent that may sting and poison the constitution, ; it destroys the principle of the government at a blow, ; it is agreed that the power is not expressly granted but implied, yet it is not agreed as to the particular power to which this is an incident, ; latitude of principles premised reprobated, ; the form not only points to the ends of government but specifies the means, ; if all laws proceed from expediency, what becomes of the constitution? ; the idea that no implication should be made against the law of nature, &c., is hostile to the main principle of our government, ; review of precedents in the former and present congress which are relied on to justify the measure, ; arguments of its advocates considered, ; there is no necessity, no occasion for a bank, ; propriety of its adoption not manifest, ; source of all the arguments in favor of the measure, ; arguments in favor of the measure, or the doctrine of implication considered, ; authority to grant charters in general, ; preamble of the constitution, ; other clauses, ; general welfare clause, ; to regulate commerce, ; the terms "necessary," and "proper," ; exclusive jurisdiction considered, ; derived from its incidentality to the mere creation and existence of government, considered, ; does it not interfere with rights of states? ; expediency of the measure considered, ; the right of exercising this authority problematical, ; death will be the penalty of counterfeiting, thus a life at stake on one hand, and an improvident act on the other, ; two modes of administering the government, ; objections to the bill in detail, ; unconstitutionality considered, ; blackstone's rules of interpretation, ; what is the meaning of the word "necessary," ; rules of blackstone applied, ; this mode of interpretation compared with that of opponents of the bank, ; the usage of congress considered, ; sense of the federal convention considered, ; no such consequence as a monopoly can result from the bill, ; congress cannot give authority to purchase land, considered, ; the sense of the continental convention is regarded differently by senators, ; the restriction contended for would annihilate the most essential rights of the citizens, ; origin of corporations, ; various objections illustrated, . warmth and passion should be excluded from this question, ; the powers proposed to be given do not exist antecedent to the incorporation, ; various arguments examined, , ; defects of the bill, ; previous question moved, ; bill passed, . motion made in the senate to exclude bank officers and stockholders from congress, ; amendment proposed, ; amendment to the amendment passed, ; further amendments considered, . barnwell, robert, representative from south carolina, , ; on ratio of representation, ; on the cod fisheries, ; on official conduct of the secretary of the treasury, , . basset, richard, senator from delaware, , , , ; appointed on judiciary committee, first congress, ; on committee on rules in cases of conference, first congress, ; on manner of electing chaplains, ; on rules of business, . beatty, john, representative from new jersey, , . beckley, john, elected clerk of the house, , , . _beef, salt._--duty on, opposed and rejected, . _beer, ale and porter_, in bottles or casks, ; duty on, ; beer, duty on, . benson, egbert, representative from new york, , , , , ; on committee for reception of president, ; reports on reception of president to the house, ; reports from committee on administering the oath to the president, ; moves the organization of three executive departments, ; further remarks, ; on a board of treasury or superintendent of finance, ; on the treasury department, ; on the form of amending the constitution, ; on manner in which secretary of treasury shall make his report, ; on motion to discriminate among the public creditors, ; presides in committee of the whole, ; on vacancy in the presidency, , ; on the stamp of american coins, . benton, lemuel, representative from south carolina, , . _bills, money._--power to originate, ; do. enrolled--a standing committee ordered, . bingham, william, senator from pennsylvania, . blair,----, chosen chaplain of the house, . bland, theodorick, representative from virginia, ; remarks on duties on imports, ; on duty on madeira wine, ; opposes a duty on salt beef, ; regards duty on nails, &c., unequal, ; presents application of virginia for amendment of constitution, ; remarks, ; advocates low duties on imports, ; urges appointment of committee of conference on first disagreement between the two houses, ; urges limitation of the impost bill, ; in the power of the president to remove officers, ; further remarks, ; believes the power of congress to require oaths of state officers. bloodworth, timothy, representative from north carolina, ; on excise bill, ; further remarks, ; senator from maryland, . blount, thomas, representative from north carolina, , , ; the right to indian lands within a state, ; on intruders on indian lands, ; on the admission of tennessee, , . blount, william, senator from tennessee, . boudinot, elias, representative from new jersey, , , , , , , ; informs the senate of the readiness of the house to meet them and count the electoral votes, ; urges scale of duties on imports proposed by congress in , ; engages in the debate, ; further speech, ; on duty on distilled spirits, ; do. on molasses, ; on duty on madeira wine, ; on duty on hemp, ; favors duty on teas, ; reports on reception of president, ; opposes high duties, ; on the application to amend the constitution, ; reviews objections to high and low duties in regard to collection, ; on no limit to the impost bill, ; further remarks, ; moves organization of executive department, ; further remarks, ; on the power of the president to remove officers, ; whether the treasury shall be composed of one or many officers, ; on the duties of secretary of the treasury, ; on providing house and furniture for the president, ; further remarks, ; on pay of vice president, ; presides in committee of whole, ; on amount of pay of members, ; further remarks, ; presides in committee of the whole, ; moves potomac, susquehanna, or delaware, instead of east bank of susquehanna for seat of government, ; on importance of the report of the secretary of the treasury, ; on the assumption of the state debts, ; further remarks, ; on the constitutional right of an attempt to depress the slave trade, ; remarks on the motion to discriminate among public creditors, ; further remarks, ; on pennsylvania memorial, ; moves to strike out "potomac," and insert "delaware" for seat of government, ; offers resolution for a land office, , ; on the commitment of the bill for a bank of the united states, ; speech on the bank, ; on report of secretary of war, ; on the ratio of representation, ; further remarks, : on the petition of catherine greene, ; against attendance of secretary of war, ; on discharging committee on defeat of st. clair, ; on official conduct of secretary of treasury, ; on the pay of soldiers, ; on the flag of the union, ; on the french emigrants from st. domingo, ; do. on the relief of do., ; on the embargo, ; on the legality of the sequestration of british debts, ; on non-intercourse with great britain, ; on admitting the delegate south of the ohio, ; further do., ; on the coinage of cents, ; on indemnification to sufferers by pennsylvania insurgents, , ; do. on the pennsylvania insurgents, ; on amending the naturalization laws, ; on the requirements of titled foreigners for citizenship, ; on reference of letter of secretary of war, ; on the reduction of salaries, ; on the right to indian lands within a state, , . bourne, sylvanus, appointed by the senate to notify john adams of his election as vice-president, . bourne, benjamin, representative from rhode island, , , , , ; on amending the naturalization laws, ; on post roads, ; on a salary for members of congress, ; on the rights of the house relative to treaties, ; on the military and naval appropriation, . bourne, shearjashub, representative from massachusetts, , , , ; on the cod fisheries, . bradbury, theophilus, representative from massachusetts, . bradford, william, senator from rhode island, , , . bradley, stephen r., senator from vermont, , , , . brent.--on the rights of the house relative to treaties, . _bribery_.--case of robert randall considered, ; charges, , ; arrest of randall and charles whitney, ; time given to prepare for defence, ; debate thereon, ; further statement of the case, ; charges against randall and against whitney, ; petition of randall for counsel considered, ; report on further proceedings, ; considered, ; information against accused, ; counsel of randall, ; examination of members, , ; resolutions on the case, , ; case of whitney, ; debate thereon, ; whitney discharged, . brown, john, representative from virginia, , , ; on quaker memorial, . brown, john, senator from kentucky, , , , . bryan, nathan, representative from north carolina, . buck, daniel, representative from vermont, . burke, edanus, representative from south carolina, , , ; on low price of staples in south carolina, ; opposes duty on salt, ; on tonnage duties, ; favors effective tonnage duties, ; opposes any title for president, ; urges low salaries in consequence of embarrassed finances, ; brings in a bill for compensation of members and officers, ; on the right of instructions, ; on the admission of foreigners, ; one year too short a term for naturalization, , ; opposes the commitment of the quaker memorial, ; pennsylvania memorial unconstitutional, ; further remarks, ; on memorial of officers of navy, ; on a seat of government, ; further remarks, ; on vacancy in the presidency, . burges, dempsey, representative from north carolina, . burr, aaron, senator from new york, , , , ; vote for, as vice-president in , ; on resolutions relative to presentation of french flag, . butler, pierce, senator from south carolina, , , , , , , ; on answer to the president's speech, ; on consideration of resolution relative to presentation of french flag, ; on resolution relative to presentation of french flag, . c cabell, samuel j., representative from virginia, . cabot, george, senator from massachusetts, , , , , . cadwalader, lambert, representative from new jersey, , , , , ; on a committee to report a bill regulating oaths, . _candles, tallow_, duty on proposed, ; adopted, . carnes, thomas p., representative from georgia, , ; on continental troops on frontiers, ; on indemnification to sufferers by pennsylvania insurgents, ; on the right to indian lands within a state, ; on intruders on indian lands, ; offers amendment to resolution relative to intruders on indian lands, . carroll, charles, senator from maryland, , , ; added to judiciary committee, ; on committee to prepare an answer to washington's inaugural, ; reports on president's message relative to the ratification of certain treaties, ; urges decision relative to duty on molasses, , ; on the amendment to the constitution relative to freedom of conscience, ; on fort cumberland as a seat of government, ; further remarks, , ; on vacancy in the presidency, . carroll, daniel, representative from maryland, , . _census of the union_, debate on, ; in order to know the various interests of the united states, the description of the several classes into which the community was divided should be accurately known, ; census should comprise more than a mere enumeration of the inhabitants, ; the progress of each interest thus shown, ; motion that the marshal receive of every white male inhabitant over twenty-one years of age five cents, and for every male slave of like age three cents, as his compensation, ; an equitable tax, ; motion lost, ; bill read a third time, . _charitable objects_, appropriations by congress for, _see_ french refugees, . _chaplains_, manner of electing, senate committee on, ; resolution of the house on, . christie, gabriel, representative from maryland, , , ; on the president's speech, ; on the randall bribery case, . _circular_, addressed to absent member at the first session of senate, . _citizenship_, during absence, see contested election of william smith, . _city hall_, new york, use of, tendered to congress, ; accepted, . _civil list for , note, ._ claiborne, thomas, representative from virginia, , , ; on the reduction of salaries, , . clark, abraham, representative from new jersey, , , ; on the ratio of representation, ; on election of president, ; on attendance of secretary of war, ; on the reduction of the army, ; further remarks, ; on the french emigrants from st. domingo, ; on the relief of do., ; on the commerce of the united states, ; on the preparations for the algerine war, ; on the embargo, ; urges postponement of indemnity resolutions, ; asks what taxes are paid by back settlers, ; opposes duties on manufactured tobacco and refined sugar, . claxton, thomas, elected assistant doorkeeper of house, , . clinton, george, votes for as vice president in , ; vote for as vice president in , . clopton, john, representative from virginia, . clymer, george, representative from pennsylvania, , , ; engages in the discussion on laying duties on imports, ; advocates protection of unwrought steel, ; on state of paper mills in pennsylvania, ; sustains the power of the president to remove certain officers, ; opposed to title for president, ; opposed to incorporating amendments in the body of the constitution, ; on the right of instruction, ; on the location of the seat of government on the susquehanna, . _coal_, duty fixed, , . cobb, david, representative from massachusetts, , . cocke, william, senator from tennessee, . _cod fisheries._--a bill for the encouragement of the bank and cod fisheries, and for the regulation and government of the fishermen employed therein, considered, ; motion to strike out first section, ; principle of the bill doubted, a bounty on occupations, ; no powers given to congress for such a purpose, ; the revenue to be employed in this bounty is to be drawn from all the sources of revenue, ; an authority given to any government to exercise such a principle would lead to tyranny, ; bad policy to encourage an occupation that would diminish rather than increase the aggregate wealth, ; the bill does not contain that kind of encouragement essential to national defence, ; the part of the national defence derived from the fisheries would be too costly, ; to show the propriety of the measure, it should be demonstrated that the trade is in a state of decay, &c., ; that there is a system of defence involved, &c., . the fisheries are confined to massachusetts, which is a part of the union, ; they are a nursery of hardy seamen, a never failing source of protection to commerce, ; more annoyance to the enemy from privateers, in the war, than from any other source, ; all desired by the bill is to avoid the burden of duties, ; the drawback on exported fish benefits the merchant, not the fishermen, ; this bill pays the same money to the fishermen, ; no bounty in the case, ; it is only a drawback on the salt used on the fish, ; the fishermen are now under no control, ; bounty given only to those who conform to regulations, ; constitution says no duty shall be laid on exports, ; on exporting dried fish, the exporter is entitled to draw back the duty paid on the salt--this is the whole question, ; defects of drawback law shown, ; bill defended on three grounds, ; it will increase the national wealth, ; it affords naval protection in time of war, ; character of the fishermen, ; product of the fisheries, ; anticipated increase in exports, ; advantages now derived by the government, ; mode of paying the bounty explained, ; not a dollar will be charged to the public, ; other points considered, ; justice only is asked, ; it is not a bounty, ; we ask that the drawback, in all instances, shall be equal to the money received, ; the allowance proposed will not be greater than the drawback on exportation, ; if it were a bounty, it would only be similar to the indulgence granted the land and agricultural interests, ; how can massachusetts contribute for protection to the western frontier when no contribution is made to support her commerce, which, without it, will be ruined? ; diminution of revenue shown, in consequence of the failure of the fisheries, . the money to be given will exceed the drawback, ; this surplus is a bounty, and congress has no power to grant bounties, ; two or three provisions of the constitution to the point, ; what will follow the doctrine of bounties, ; guards in the constitution against the dangerous bias of interest which the doctrine of bounties subverts, ; the objects of the bounty mark a dangerous innovation, ; it is better to increase the drawback, a plan comprehending the useful parts of the bill without the objections, . nothing of a bounty except the name in the bill, ; the object of the bill is to encourage fishermen and thereby increase their numbers, and to govern them by certain laws by which they will be kept under due restraint, ; these points considered, ; the bill proposes to commute the drawback on the exportation of fish to a payment on the tonnage--thus no bounty, ; the bill contemplates no more than what the merchant is entitled to by existing laws, ; the powers of the government must, in various cases, extend to granting bounties, . a material distinction here between an allowance as a mere commutation and modification of a drawback, and an allowance in the nature of a real and positive bounty, ; the term bounty improper here, and does not express the sense of the bill, ; some think congress may do any thing they may think conducive to the "_general welfare_" ; this term examined at some length, ; consequences of the novel idea advanced, ; the power of congress, if established to this latitude, would subvert the government, ; is it worthy the attention of the government that the cod fisheries should be preserved? ; privilege carefully secured in the treaty with great britain, ; products obtained in exchange for fish are dutiable, . congress does not possess the power, ; arguments for the bounty examined at length, ; perhaps the state legislature should give the bounty, ; framers of the constitution guarded against partial preferences extremely, ; is it politic and wise to exert this power even if it be authorized by the constitution? ; an examination of terms used, ; distinction between bounties and drawbacks, ; arguments drawn from the term "general welfare" dangerous, ; general welfare and particular welfare, ; the inherent rights of the government, ; passage of the bill, . _coffee_, duty on, . coffin, peleg, jr., representative from massachusetts, , . coit, joshua, representative from connecticut, , , ; on the rights of the house relative to treaties, ; on the execution of the british treaty, ; on the admission of tennessee, . coles, isaac, representative from virginia, , , , . _commerce of united states._--report of secretary of state on the privileges, and restrictions on the commerce of the united states in foreign countries, considered, ; _note_ on, ; proceedings previous to the adoption of the constitution, ; duty to see if such measures could not be taken as would be promotive of those objects for which the government was in a great measure instituted, ; effects of such a movement, ; numerous considerations advanced, ; line to which the debate should be confined, ; great britain and france, the two powers aimed at in the restrictions proposed, ; an accurate and impartial comparison of the commercial systems of the two countries in reference to the united states; the test of the solidity of these propositions, ; results of the comparison, . should any thing be done at this time in the way of commercial regulations towards vindicating and advancing our national interests? ; navigation act of great britain, ; to allow trade to regulate itself, is not to be admitted as a maxim universally sound, ; history of american policy, ; trade between the united states and great britain, considered, . we should not regard the favoring of the french and british nation, but study to do that which would tend to the promotion of our own commerce and the interest of our own navigation, ; which would suffer most, the united states or great britain? ; three fourths of our revenue is derived from our commerce with great britain, ; our intercourse with great britain, excepting some points, is as favorable as we can expect, ; a judicious system of regulations would be of infinite advantage to the maritime interest of this country, ; principles in regard to trade, ; the subject is divided into navigation and manufactures, ; navigation considered, ; benefits derived from the consumption of european manufactures, ; on the trade between america and great britain, ; fixed principles and regulations by which to promote our commerce, ; question considered in a political light, ; the question postponed, . _promoting commerce_ by the increase of american seamen; moved that a committee be appointed to report bills for, ; injury and insult arising from having british seamen, ; cases of search and seizure stated, ; conduct of great britain, ; government should take steps to secure abundance of american seamen, ; motion adopted, . _committee._--senate, st congress; on judiciary, ; on rules in cases of conference, ; on manner of electing chaplains, ; on arrangements for receiving president, ; to wait on vice president, ; on conducting the ceremonial of receiving the president, ; to prepare an answer to washington's inaugural, ; of house to report a bill regulating oaths, ; of house to receive president, ; to receive vice president, ; on supplies ordered, ; appointed, ; on disposition of papers in the office of late secretary of united states, ; on the answer to washington's inaugural, ; on supplies; instructions to, ; of conference with senate on disagreement relative to title of president, ; to draft bills organizing executive departments, ; to draft bills on pay of members, ; on the establishment of a land office, ; on enrolled bills, ; to bring in bills relative to a seat of government, ; of senate to draft an address to the president, ; of senate to bring in a bill additional to the judiciary act, ; on unfinished business of last session, ; of house on unfinished business of the last session, ; to wait upon the president, ; to prepare an address to the president, ; of senate to draft an answer to the president's address, third session, first congress, ; standing, appointed by the speaker, ; on rules, ; to prepare an answer to the president's address, . _compensation of the president, &c._--report of a committee on the compensation of president, vice president, senators, and representatives considered, ; in what style is the president expected to live? ; is five thousand dollars in proportion to the services of the vice president? ; members should know the rate at which they are paid in order to regulate their expenses, ; the pay of the president should be granted as one sum, ; under the constitution, he can receive no other emolument, ; the provision in the report for paying the expenses of enumerated articles, house, furniture, clerks, horses, does not leave the president in the situation contemplated by the constitution, ; furniture and plate should always be provided by government, ; report perfectly constitutional; if one thing can be allowed, another can be, ; the constitution intends nothing but a fixed compensation for his services, ; compensation should be according to services, and the president allowed to live as he pleased, ; there should be proper dignity attached to the office, ; motion to strike out enumerated articles, horses, &c., carried, ; motion to strike out twenty and insert thirty thousand dollars, ; do. divided, first carried, ; various sums proposed, ; if we knew the style in which the president should live, amount of pay would be easy to determine, ; experiment only can tell, ; $ , sufficient to test it, ; various sums farther considered, ; $ , adopted, . _compensation of vice president_ considered, ; $ , per annum in quarterly payments reported, ; nothing in the constitution gives him a right to a salary, ; moved to strike out $ , in order to allow salary when he acts as president, and daily pay for services in the senate, ; $ , is out of proportion to $ , , ; it should be a perpetual salary as he is expected to remain at the seat of government, and be ready in case of death of the president, ; a compensation is to be made only for services rendered, ; lieutenant governors of states, ; services required of vice president, ; advantages of the position, ; constitution silent on the subject, ; therefore left to the legislature to determine, ; pay according to services does not hold good in executive and judiciary departments, ; the post not a sinecure, ; no more entitled to an allowance than the other members of the legislature are, ; shall the vice president receive a per diem or an annual salary? the constitution should serve as the ground by which to determine, ; all motions lost and original proposition agreed to, . _pay of senators and representatives_ considered, ; six dollars per day and for every twenty miles proposed, ; six per day for senators and five for representatives moved, ; a distinction made in the constitution, ; discrimination opposed, ; discrimination urged on the ground of different qualifications and mode of election, ; difference not perceived in the constitution, ; discrimination evidently contemplated in the constitution, ; unless adopted, proper senators may not be obtained, ; no difference in legislative concerns, ; arguments in favor of discrimination considered, ; do. ; distinction marked in many points, ; a discrimination may eventually be a public injury, ; a measure injurious to the government, ; motion lost, ; bill for compensation, &c., ; moved to strike out six dollars as pay of members, ; objects of the mover, ; six dollars too high, ; present course is contrary to all parliamentary proceeding, ; motion to strike out lost, ; bill reported to the house, and moved to strike out six dollars, and insert five, ; six too high, ; consider the principles upon which the president, judges and members are to be paid, ; necessary to secure an independent legislature, ; five high enough, ; insinuations of improper and unworthy motives in the movers, ; motion lost, . annual salary proposed of $ , for members of the house, ; present mode good--no alteration necessary, ; members be induced to greater despatch in business, ; public think the session unreasonably protracted, ; annual salary causes neglect of business, ; a salary, a bounty to neglect business, ; a measure affords no advantage, ; many suppose the bill to cover advance pay--yearly allowance not shorten sessions, ; further consideration advanced, ; motion to strike out the word annual passed, ; motion to strike out greater allowance to the speaker, ; debated at length, ; motion lost, . _congress._--day of meeting, ; _note_, ; proposition to adjourn first session, ; adjournment of first session, ; compensation of members, ; debate on, ; pay of members, ; debate on discrimination in pay of members of two houses, ; compensation of members and officers, ; debate on amount of pay, ; first session, adjournment of, ; second session, day of meeting, ; members of, when term of office commenced, ; second session, ; first, third session, ; first, closed, ; second, first session, ; second, first session closed, ; second session commenced, ; third, first session, ; third, second session, ; adjournment, second session of third congress, ; fourth, first session, . _connecticut._--vote for president, , . _constitution._--amendment of, proposed by virginia, ; how treated by the house, ; debate on the mode of, ; on the freedom of conscience, ; right of instruction, ; debate on, ; vote on, ; all amendments, in one report, ; constitution, amendments of; _see amendment_ of the constitution. contee, benjamin, representative from maryland, , . _contested elections._--debate on the resolution that william smith, member of the house, had been seven years a resident of the united states at the time of his election, ; statement of mr. smith, ; was mr. smith a citizen of south carolina during his absence in europe? ; if the laws of the state decided him to be, that should settle the question, ; is the gentleman eligible to a seat in the house, or has he been seven years in the united states? ; qualities of a citizen and an alien, ; to become a citizen, allegiance is first due to the whole nation, ; what was the situation of the people of america when the dissolution of their allegiance took place? ; views of mr. madison, ; opposite views of mr. jackson, ; vote admitting mr. smith, . _ineligibility of albert gallatin_ to a seat in the senate, considered, ; on the petition of conrad earle, reported that it remains with mr. g. to prove his citizenship, ; facts stated, ; who shall open the prosecution and conclude the arguments? ; mr. g. was an inhabitant of the united states before the peace of , ; all previous laws respecting aliens were done away, ; he conceived himself a citizen from the time of his first qualifying, . qualifications required in virginia and massachusetts, ; mischievous consequences of permitting such innovations, ; the doctrine of the old law still virtually in force, ; other objections considered, ; reply of mr. gallatin, , , ; vote of the senate, . cooper, william, representative from new york, . _cotton_, its introduction into south carolina contemplated, . count de grasse, memorial of heirs of, . crabb, jeremiah, representative from maryland, . _creek nation._--secret article of treaty with, . _crown on the state house_ at new haven, . d dalton, tristram, senator from massachusetts, , , ; on committee for conducting reception of president, . dawson, william j., representative from north carolina, , . dayton, jonathan, representative from new jersey, , , , , ; in favor of the attendance of the secretary of war, ; on discharging committee on defeat of st. clair, ; on reduction of the army, ; acknowledges thanks of the house, ; on the sequestration of british debts, ; against continuing the embargo, ; moves to refer indemnity resolution to committee on sequestration of british debts, ; advocates his motion, ; in favor of the bill to increase the army, ; on admitting the delegate south of the ohio, ; on administering the oath to the delegate south of the ohio, ; on the president's speech, ; on indemnification to sufferers by pennsylvania insurgents, , ; on pennsylvania insurgents, ; on amending naturalization laws, ; on reference of letter of secretary of war, ; on the purchase of indian lands, ; elected speaker, ; do. speech, ; on establishing indian trading-houses, ; on the pay of the speaker, ; on the execution of the british treaty, ; on the admission of tennessee, , ; on the military and naval appropriation, , . dearborn, henry, representative from massachusetts, , , ; on thanks to general wayne, ; on the sense of the house relative to the british treaty, , ; on the admission of tennessee, . _debate_, on duties and imports, , , , ; on permanent seat of government, ; on amendments of the senate to house bill fixing seat of government, ; on call of the house, ; on manner in which secretary of the treasury shall make a report, ; on answer to president's speech, ; on admission of reporters, ; on census of united states, ; on report of secretary of the treasury, ; on the naturalization laws, ; on the assumption of state debts, ; on the reception of the address of the friends urging the discontinuance of the slave trade, ; publication of, ; on a military establishment, ; on the defeat of st. clair, , ; on the reduction of the army, ; on official conduct of the secretary of the treasury, ; on the pay of soldiers, ; on the commerce of the united states, ; on the war with algiers, ; on sequestration of british debts, ; on non-intercourse with great britain, ; on the embargo, ; on indemnity for spoliations, ; on tobacco and sugar duties, , , ; on the delegate south of the ohio, ; on answer to president's speech, ; on pennsylvania insurgents, ; on naturalization bill, ; on reduction of salaries, ; on thomas pearson and others, ; on indian lands in georgia, ; on the address to the president, ; robert randall bribery case, ; on appropriations, ; on treaty with great britain, ; on admission of tennessee, . _debt of the states_, _note_, ; assumption of, . _delaware_, vote for president, , . _delegates from territories._--report on the credentials of james white, representative of the territory south of the ohio, ; unconstitutional to permit the delegate to debate and not to vote, ; the law says he shall be a member of congress--one house is not congress, hence the delegate may vote in both houses, ; constitution makes no provision for such a person, ; his proper title is to a seat in the senate, ; the house can admit those whom it regards as lawfully entitled to a seat, ; by whom was he to be paid? ; expedient to admit the delegate, ; the house has the right to consult or admit any one to debate, but not to vote, ; an act of the whole legislature requisite for the introduction of a delegate, ; an act of the legislature impracticable, ; he has a right to a seat founded on an original compact, ; amendment proposed, ; the constitution admits no such character, ; report of the committee, ; moved that the delegate be required to take an oath, ; the constitution requires only members and the clerk to take an oath, ; improper to demand an oath of a delegate as he cannot vote, ; motion lost, . dent, george, representative from maryland, , , . _departments_, executive, debate on, ; of interior, organization of, proposed as a home department, ; of state, organization of, proposed, ; resolved, ; of treasury, organization of proposed, ; of war, organization of, proposed, ; of the treasury, organization of, proposed, ; debate, ; three commissioners of treasury voted down, ; executive, resolution on, ; do. committee on, ; of state, on removal of the secretary by the president, ; of war, ; do. bill ordered to be engrossed, ; of the treasury, debate on duties of the secretary, ; home, ; proposition lost, ; see _executive_ departments. dexter, samuel, jr., representative from massachusetts, , ; on the french emigrants from st. domingo, ; against continuing the embargo, ; opposes reference of the indemnity resolutions to committee on sequestration of british debts, ; on admitting the delegate south of the ohio, , ; on the president's speech, , , ; on indemnification to sufferers by pennsylvania insurgents, , , ; on amending naturalization laws, ; on the exclusion of titled foreigners from citizenship, . dickinson, philemon, senator from new jersey, , , . _discrimination_, in public creditors, _see treasury_, report of secretary. _distilled spirits_, debate on drawback, ; duty on, proposed, , ; duty on, ; _see duties_ on imports. _drawbacks_, _see duties_ on imports. dudley, gifford, elected doorkeeper of house, , . _duties ad valorem_, laid, , ; collection of, bill reported, ; on imports, bill laying the same considered, ; subject brought before the house by mr. madison, ; scale adopted in , ; debate on, in committee, , , ; effect of high duties on smuggling, ; debate thereon, , ; debate on limiting the time of the bill, ; amendment proposed, ; withdrawn, ; another moved, ; bearing of the debate upon protection, _note_, . _duties on import_s.--debate on, ; importance of the subject, ; deficiency of the treasury, ; the propositions by congress in , suitable for a basis, ; heretofore approved by the states, ; tonnage duties added, ; necessity of the measure, ; motion to fill the blanks of rate of duty as proposed by congress in , ; filling the blanks should be postponed until the business is more mature, ; immediate filling not necessary, ; the proposition considered in a revenue light alone, ; system of the plan proposed, ; its simplicity, ; something more than a temporary measure should be adopted, ; list of articles on which duties should be levied proposed, ; a single system embracing the most material and productive articles is best at present--a plan comprising all is a work of time and leisure, ; to establish a permanent regulation now is most satisfactory to the public, ; five per cent. on all imports excepting a few articles enumerated for specific duty proposed in --the history of the ancient world shows protection to domestic manufactures, ; the fostering hand of the general government should extend to all manufactures of national utility, ; any system of imports must be founded on mutual concession, ; the means of encouraging agriculture should be considered, ; of this we have the monopoly, ; commerce, labor and industry, should be free, with some exceptions--every nation should have means of defence within itself, ; imposts the easiest system of revenue, ; but in what manner shall it be done? ; specific duties on enumerated articles desirable, ; a political necessity exists for encouraging manufactures, and raising a revenue, ; what articles shall be taxed, what amount of money will each yield, and in what manner shall it be collected? ; these questions should be the subjects of two bills, ; in laying duties where the quantum is unascertainable, they should be low rather than high, . _rum._--fifteen cents per gallon proposed, ; fifteen too high, ten moved, ; committee not prepared to enter on the business in the accurate manner proposed, ; encouragement to manufactures in their present feeble state would be a tax on the public for the benefit of a few, ; what article shall be subject to specific, and what to _ad valorem_, duties, and on what principle shall the discrimination be made? ; if the main object is revenue, consider when a duty is laid how far it is likely to be collected, ; fifteen cents per gallon on rum may tempt smuggling, ; it is one third the cost, ; the highest sum can be collected, ; revenue is the present object, and rum is the most productive article, ; what shall be the duty on one article must be determined by the circumstances of the article, ; yet fifteen cents on rum may lead to evasion of the law, ; fifteen cents adopted, ; _drawback_ on rum exported, of six cents, ; lead to frauds on the revenue, ; no drawback will be a great injury to the manufacture, ; drawbacks will not operate to the disadvantage of the revenue, ; if not allowed it will be a restraint on commerce, ; particularly unjust if not allowed on rum, ; this was an encouragement to commerce, and should not be combined in a bill encouraging manufactures, ; drawbacks generally, ; duty on rum, ; motion to reduce lost, . _bill repealing duties_ heretofore laid on distilled spirits imported from abroad, and laying others in their stead, and also upon spirits distilled within the united states, considered, ; an excise law to be reprobated, ; unequal in its operation, , ; history of excises in england, ; compliment to importers on promptness in paying duties, ; bill hostile to the liberties of the people, ; present revenue and demands compared, ; tendency to promote smuggling, ; mode of raising additional revenue disliked, ; motion to strike out duties specified in order to insert duties on molasses, ; of all excises that on ardent spirits least exceptionable, ; direct taxation preferable, ; no other mode can be adopted, ; other sources of revenue might be explored, ; smuggling be promoted, ; deficiency exists--money must be raised--direct taxation impracticable, ; operation of an excise in north carolina, ; an equal and just mode of taxation, ; good sense of the people support it, ; no more proper subject for revenue, ; direct taxes opposed, ; difference from the english bill, ; excises constitutional, ; people of southern states cheerfully acquiesce in the wisdom of legislature, ; probable revenue of the year, ; an amendment moved to prevent inspectors, &c., from interfering in elections, &c., ; the amendment should be extended to every person, ; proposition important, ; bad policy to render the law odious by fixing a stigma on the officers to execute it, ; propriety of the motion, ; motion does not go far enough, ; reasons for the amendment, ; objections to the amendment, ; amendment lost, ; bill passed, . _molasses._--shall we tax spirits or the article from which it comes, ; better collect on the importation of molasses, ; eight cents is in proportion to the tax on rum, ; this is a raw material important to manufactures in eastern states, a necessary of life--the tax, a local burden--two cents high enough, ; a principle of action should be adopted, ; if molasses is taxed high because the duty on spirits is high, a necessary of life is burdened, ; this rate of duty is unequal, ; it will bring sudden ruin on the manufacturers of domestic spirits, ; if a particular duty bears hard on one member of the union, it is part only of a system bearing equally upon all, ; is this duty ruinous to massachusetts? ; let a drawback of this duty be paid on all rum exported, ; eight cents is more than a third of the cost of molasses, and higher than the duty on rum, ; six cents is more equitable; this principle now fixed would carry them through the whole, ; fixed at six cents, ; if a reduction is made on other articles, there should be one on molasses, ; the duty is not rated in proportion to other articles; the reduction must depend on the article itself, ; should so rate as to make the states bear their due proportion of the aggregate, ; every article should stand on its own bottom, ; this duty is out of proportion, and too high to be collected, ; it is a tax on a raw material and on an article of consumption, ; the necessity of a drawback on country rum is incurred, ; without the molasses trade the fishery cannot be carried on, ; experience is against high duties on molasses, ; fish are given in exchange for french molasses in the colonies; if the exportation of molasses is impeded so is that of fish, ; the arguments of the advocates of a reduced duty, ; six cents changed to five, . _madeira wine._--thirty cents proposed, as it corresponds with the rate per cent. on the value--a principle now admitted, ; fifty cents proposed, as the article is not a necessary of life, and it is desirable to raise all the revenue from imports, ; fifty cents prohibitory, ; the duty should be according to the relative value of the article at the time and place of importation, ; cost of wine estimated, ; thirty-three cents substituted, ; discrimination on all other wine, ; discrimination not proper at this time, . _sugar_, put on same footing as molasses, . _beer, ale, and porter._--this manufacture should be encouraged, ; nine cents moved, ; the duty should be so high as to give preference to american beer, ; a low tax will raise money enough, ; nine cents prohibitory, ; prohibition will increase the manufacture and reduce the price--encourage raw material, ; eight cents fixed, . _candles._--moved to strike out, ; it is necessary to continue encouragements begun by the state governments, ; a small encouragement would place the article beyond competition, ; if there was much importation of the article, it should be taxed for the sake of revenue, . _steel, unwrought._--any duty on, unwise and impolitic, ; more deserving of a bounty, ; a little encouragement would furnish abundance, ; encouragement of the object of selecting the article, ; the smallest tax on steel would be a burden upon agriculture, an interest most deserving of protection, ; condition of south carolina, ; local considerations must be got rid of, ; what operates to the benefit of one part in establishing useful institutions will operate finally to the advantage of all, ; sixty-six cents a heavy duty on agriculture and mechanic arts, ; fixed at fifty-six, . _hemp and cordage._--policy of taxing cordage doubtful, ; ship-building of national interest, ; duty on hemp moved also, ; if one is necessary, so is the other, ; soil of the country ill adapted to hemp, ; a duty on it would discourage navigation, trade and fisheries, ; policy of taxing either doubtful, ; southern states calculated to raise hemp--protection to husbandry important as to manufactures, ; distinction between taxing manufactures and raw material, ; no amount of duty could give encouragement, if present price failed to do it, ; frontier lands excellent for its growth, ; the committee should do as much for the farmer as the artisan, ; american lands will produce it equal to any in the world, ; a small duty would turn public attention to it, ; agriculture should be encouraged, but not at the expense of ship-building, ; forty cents moved, ; encouraging the settlement of western lands will encourage ship-building more than a bounty on hemp, ; a low duty will encourage its growth in south carolina and georgia, ; if hemp left out, cordage should be also, ; a low duty at first, ; fifty cents fixed, ; immediate encouragement contended for, . _nails, spikes, &c._--this is a tax on the improvement of estates, ; like a tax on hemp, would increase the price of ship-building, ; an unequal tax, ; in a little time the home supply would equal the demand, ; needs no legislative assistance, ; refusing the duty will do no material injury, ; one cent per pound fixed, . _salt_, a necessary of life, ; present price high, ; much to be depended on as a source of revenue, ; this tax heavier on the poor than on the rich, ; no encouragement would be sufficient to establish its manufacture, ; this tax unpopular and unjust, ; it will cause much dissatisfaction with the new government, ; dissatisfaction will be only partial, ; the tax not unequal, ; taxes, to be just, should affect all, as this will, ; the good sense and justice of the people to be trusted, ; to be considered on the principle of justice and policy, ; it falls on all alike, is part of a system, ; any distinction is in favor of the southern division, ; if oppressive to the west, the equilibrium is restored by other articles in the system of revenue, ; no law unjust and oppressive should be made, ; such the duty on salt will be considered, ; fixed at six cents, with a drawback on salted provisions, . _teas_, a discriminating duty in favor of american bottoms proposed, ; a large trade now sprung up with the east, ; policy of the measure doubtful, ; its object is not to add to the revenue, ; long voyages unfriendly to commerce, ; the only advantage is to raise the india commerce, ; large amounts of american produce were exported in this trade, ; it would afford protection against the large companies in europe, ; duty fixed as proposed, . _coal._--coal came from europe as ballast so cheap as to prevent the working of the mines in virginia, ; three cents fixed, . _scale of duties_, motion to reduce as too high, ; the scale will be found not too high, ; certainly too high to be well collected, especially in georgia, ; greater revenue can be obtained from a lower scale, ; high duties produce smuggling, ; high duties now will lead to smuggling, and oppress certain citizens and states for the benefit of others, ; high duties raise a scruple respecting the allowance of a drawback, ; high duties improper, because they are impolitic, ; southern states willing to consent to moderate duties, and give every encouragement possible, but not consent to great oppression, ; are the duties too high or not? ; what are the objects of government--revenue one of the first? ; if the revenue system falls with oppressive weight, it will shake the foundations of the government, ; what we may reasonably expect to collect is the point to be considered, ; the chain of ideas upon which the whole subject is suspended, ; all the money should be drawn from impost which can be, ; rate of the duties, ; if the scale is reduced, the amount of revenue will be insufficient, ; direct taxation and excises are the only other means of resource, ; experience of the old congress and the increase of our importations show the scale to be too high, ; the objects for which the money is needed are most important, ; direct taxes are the alternative of lowering the scale, ; every article stands as well as possible under the information possessed, ; the arguments of the advocates of low duties considered, ; this system compared in amount with that of great britain, ; arguments of the advocates of high duties considered, ; a host of revenue officers required to collect high duties would leave little for the treasury, ; america has vessels well adapted for smuggling, ; effects of high duties on the mercantile interest, ; the impost will be well collected, ; whatever is just and right the people will judge of and comply with, ; if revenue is our primary object and other considerations secondary, we should do nothing to operate against the principle, ; object of the committee is to raise revenue, . _african slaves._--duty on their importation moved, ; not to be hastily considered, ; impost bill on goods not proper to embrace this subject, ; the motion should comprehend the white slave as well as black imported from the jails of europe, ; no right to consider whether the importation is proper or not, as the constitution gives the power, ; the principle of the bill is to raise revenue, the principle of the motion is to correct a moral evil, ; the whole burden falls on two or three states, which bear their full proportion of other taxes, ; imposing a duty on the importation may have the appearance of countenancing it, ; if negroes are goods, they come within the provisions of the bill--if not, the bill would be inconsistent, ; the motion should be brought forward as a distinct proposition, ; now is a proper time and place to consider the motion, ; the object of enumerating persons on paper with goods is to prevent the practice of treating them as such by having them form part of cargoes of goods, ; the tax not partial--in many instances such taxes are laid, ; arguments of the opponents considered, ; no difference whether left among enumerated or non-enumerated articles, ; would a five per cent, _ad valorem_ on goods apply to slaves unless so stated, ; the states were now prevented from continuing their duty on the importation, ; motion withdrawn, . _limitation clause_ as to the time of continuing the impost bill moved, ; propriety doubted, ; difficulty of fixing a suitable time, ; this is an experiment, and should be limited to three or five years, ; if the law is temporary, the people will not object to high duties, ; the object of the bill is the re-establishment of public credit, a motion limiting it strikes at that credit, ; to pass a bill to draw revenue from the people without limitation of time appeared dangerous, ; it was not only to restore credit, but encourage certain people to engage in enterprises for which the public faith seemed to be pledged, ; if made perpetual, the house could not alter it unless the president or a majority of the senate approved, ; the house is constitutionally the originator of money bills, ; impossible to provide for the objects of the bill if it is limited to a few years, ; a future congress may repeal it, ; great care was necessary to preserve the principle of raising money inviolate, ; there are great demands on the treasury, and no documents to show what they are or what the revenue bill will produce, ; danger of making the bill perpetual is the loss of power to originate money bills, and the extending the revenue above the demands of government, ; a temporary limitation would inspire confidence, ; a perpetual one for interest alone would destroy all hope of payment of the principal, and shock credit, ; nothing but a fixed, permanent, system can give security, ; public credit will not admit a temporary act, ; a measure of this kind necessary to reconcile members to different parts of the bill, ; if the law is made perpetual, it will collect money in the public coffers after the debt is paid, ; the senate more likely than the house to misunderstand the public voice--the latter should preserve power of redress, ; examination of reasons for making the law perpetual, ; no law should be passed without a limitation, ; no opportunity to amend errors if the law is made perpetual, ; the system should be permanent if the law is not perpetual, ; no revenue law with a limitation can probably be found on the english statute books, ; motion withdrawn, and another substituted fixing a day for the termination of the act, unless otherwise provided, &c., ; latter part struck out, ; motion passed, ; first day of june, , fixed, . duties as agreed in conference with the senate, ; bill for laying additional duties considered, ; three cents additional on salt opposed as oppressive, ; it is better than a land tax, ; no tax could be so universally unpopular as this, ; rejected, ; other duties considered, ; one and a half cents additional laid on coal, . _manufactured tobacco and refined sugar_, duty on, considered, ; these articles incapable of bearing a burden, ; of the nature of an excise, and the money can be raised either way, ; if the bill is thrown out, then farewell to firm and determined measures, ; objections to an excise, ; the principle of excise is settled, ; reasons in favor of the duty, ; delay urged, ; money needed, ; a considerable deficiency, ; imports reduced by capture of american shipping, ; a general increased import would not effect the object, ; if peace continues, the revenue may be adequate--if war comes, it will be deficient, ; better to postpone the subject, ; motion to reject the bill lost, ; amended so as to confine the duty to manufactured snuff, ; moved to strike out duty on refined sugars, ; now in its infancy, ; state of the trade--objections to the duty considered, ; motion to strike out lost, . _duties on tonnage._--debate in committee of the whole, ; objects of tonnage duties, ; motion to reduce from thirty to twenty cents, ; the objects accomplished, ; southern products cannot bear high duties, ; reasons for the reduction insufficient, ; if we have various, we have not opposite interests, ; no feeling of jealousy or rivalry exists, ; encouragement of navigation indispensably necessary, ; the price of freight will equalize itself, ; regulation in favor of american shipping absolutely necessary to restore equality with foreigners, ; southern states indignant at the power which foreigners have over their commerce, ; they look forward to the day when their navigation will be secured to the eastern states, ; under present circumstances a heavy tonnage duty will be attended with dangerous consequences at the south, ; the principle of preference being fixed, it only remains to ascertain the proper degree, ; a moderate duty should be allowed now, ; but little difference in the capacity of the several states for ship-building, ; this encouragement will diffuse and equalize its operation in every port, ; proposition to lay a duty of fifty cents per ton on all vessels wholly or in parts, owned by subjects of foreign powers, ; motion to reduce to forty until ; then increase it to seventy-five cents, ; state duties are higher, and, if now reduced, will cause distress, ; if sufficient encouragement is given now, our navigation will probably immediately flourish, ; doubtful policy now to reduce and then increase duty at the end of two years, ; ship-building now needs the greatest encouragement, owing to its present low state, ; different course pursued by the members from massachusetts and pennsylvania, ; people of the southern states in debt, and have no shipping, and are unable to sustain any new burdens, ; the difference in views does not arise from the geographical situation of the country, ; the states expect congress to protect their citizens in the property acquired under state legislation, ; forty cents not too low, ; many years must elapse before we have sufficient tonnage to export our commodities, ; the business is now in the hands of foreigners, and a duty will cause a rise of freight by them, ; is fifty cents too high? ; a permanent regulation best, ; british shipping now crowds the ports of virginia, although the tonnage duty is twice as high, ; the question of discrimination has been decided, ; two years will not produce sufficient shipping--it will be improper to raise the duty then, ; a certain tonnage duty best, ; motion to reduce, and then raise in two years, lost, ; regulations as adopted, ; _see address_ of house to president, and page . _duties_, protective, on unwrought steel advocated, . duvall, george, representative from maryland, . e earle, samuel, representative from south carolina, . edwards, john, senator from kentucky, , , . _elections_, contested, ; case of wm. smith, ; do. _note___, . _elections.--see contested elections._ _electors of president._--bill in relation to election of president considered, ; longer time for the choice of electors of president and vice president, ; disagreeable consequences likely to follow a failure of choice, ; moved to strike out thirty days, ; if possible, the electors should meet on the very day they are chosen, ; fourteen days would be a more proper time, ; it was hardly possible to know electors would agree in a choice--in such cases a short time might answer, ; motion negatived, . objections urged to the clause requiring executives to certify the names of electors, ; no person can be called on to discharge any duty for the u. s. who does not receive an appointment from the u. s., ; if congress cannot call upon executives, upon whom can they call? ; provision improper, ; on the contrary, it is neither an undue assumption nor degrading to the executives, ; motion to strike out lost, . ellsworth, oliver, senator from connecticut, , , , , , , , ; ordered to inform the house of a quorum in the senate, &c., ; appointed on committee on rules, in case of conference, first congress--on electing chaplain, ; appointed on judiciary committee, first congress, ; on committee on titles of president and vice president, ; delivered message from the senate to the house, ; report upon the commencement of the term of office of president, &c., ; on answer to president's speech, ; on consideration of resolutions relative to presentation of french flag, ; on resolutions relative to presentation of french flag, , . elmer, jonathan, senator from new jersey, , , . _embargo._--_see great britain_, retaliatory measures upon. _emigration_, proclamation of spanish governor of illinois posts, ; encouragement of, . _estimates of money_ necessary for , . _excise laws_, debate, . see "_duties on imports_" under head of _distilled spirits_; memorial on the, . _excise.--see duties_ on imports, manufactured tobacco, . _executive departments._--resolution respecting, ; debate thereon, ; how many departments shall be established? ; three moved, ; founded upon the constitutional division of these powers, ; home department should be added, ; previous motion withdrawn, ; new motion to establish a department of foreign affairs, one of the treasury, one of war, ; department of foreign affairs agreed to, . _mode of appointing the officer_, ; motion to strike out "by the president with the advice of the senate," as unnecessary, ; no serious reason against their insertion, ; the power of appointing is the gift of the legislature, as the secretary is an inferior officer, ; the words only repeat those in the constitution, ; words struck out by a vote, . _power of removal_ in the president doubted, ; impeachment the only mode, ; what the consequences of such an interpretation, ; absolutely necessary the president should have the power of removal, ; if an officer can be removed only by impeachment, he holds his office during good behavior, ; it does not consist with the nature of things that impeachment should be the only mode of removal, ; the power given to the senate respecting appointments would be almost nugatory if the president had the power of removal, ; if the house had the power of removal by the constitution, they could not give it out of their hands, ; not a proper construction of the constitution to say impeachment is the only mode of removal, ; a legislative construction of this part of the constitution necessary, ; in all cases the party who appointed should judge of the removal, unless otherwise excepted, ; a liberal construction should be given to the constitution, ; the president should be made as responsible as possible for the conduct of his officers, ; how the constitution provides for the appointment of public officers, ; the power which appointed had the right of removal--shall it be given to the president alone? ; the power of removal exists somewhere, and where? ; it is an executive power, and belongs to the president, ; the power declared to be in the president by a large majority, . _department of foreign affairs_, in committee of the whole on the bill to establish a, ; on the words, "to be removable from office by the president of the united states," ; debate, ; the power of appointing and dismissing united in their natures, ; motion to strike out the words, ; the declaration should not be made even if the president has the power, ; no right to deprive the senate of their constitutional prerogative, ; we are declaring a power in the president which may be greatly abused, ; the constitution the only guide; as it is silent, congress should say nothing about it, ; the nature of things; the express objects of the constitution require this power in the president as the most suitable person, and it must be conferred upon him by the constitution as the executive officer of the government, ; safer in the hands of the president than elsewhere, ; if this power is not in the president, it is not vested anywhere, ; this construction preserves to the department the full exercise of its powers, ; the precedent of the individual states, ; may arrive at something near certainty by attending to the leading principles of the constitution, ; examination of the constitution, ; motion to strike out decided in the negative, ; passage of the bill, ; same clause attached to the bill organizing department of war, . _treasury department._--debate, ; shall this important department be in the hands of a single officer or in a board of commissioners? ; duties to be assigned to the secretary, ; a board of treasury would conduct the business of finance with greater security and satisfaction than a single officer, ; experience shows a board of treasury is the worst of all institutions, ; experience with a single individual, ; not so much system, energy, or responsibility in a board as in a single officer, ; with, a single officer there is safety, if the various business of the department is divided and modified, ; with a board more power is given to each individual than is proposed to give to a secretary, ; shall the department be under one or more officers is the question; what does experience show? ; motion in favor of a board lost, . the words in bill to "digest and report plans for the improvement and management of the revenue and the support of public credit," objected to, ; debate thereon, ; to require the secretary to make out and prepare estimates is sufficient-- any thing farther is a dangerous innovation upon the constitutional privilege of the house, ; to report plans will abridge the privileges of the house, ; the bill will be nugatory without this clause, ; it cannot infringe the privileges of the house, ; from the nature of his office, the secretary will be better acquainted than any other person, ; the constitution expressly delegates to us the business of revenue--if we blindly follow an unskilful minister, our constituents have no security, ; the power of originating money bills here is a sacred deposit, ; we may neither violate it nor divest ourselves of it, ; the circumstances of the country are such that the house needs the aid of such an individual, ; too great jealousy for liberty hurtful, ; the clause is unsafe and inconsistent with the constitution, ; the object of the clause is good, viz: to get information, but the secretary should not possess a right to give it, ; what is this officer to be responsible for, to entitle him to such powers? ; difficult to see where the danger lies, ; what is meant by responsibility? ; something of the kind is required in the bill, ; motion to strike out lost, . _home department_ moved, ; duties of it proposed, ; necessity of it not apparent, ; duties may be distributed to other departments, ; they have not been so distributed, ; foreign to the other officers, ; economy forbids it, ; motion to establish lost, . _reception of a letter from the head of department._--motion to refer a message of the president laying before congress a copy of a letter from the secretary of war, &c., ; objected to, as showing too much deference to heads of departments, ; the president had a right to send the communication and the subject of utmost importance, ; it is an executive comment on a legislative proceeding, ; a defence of a measure adopted by the senate condemned by implication another of the house, ; no good reason to reject information because we had not asked for it, ; reference to the constitution, ; such jealousy needless, ; objections unfounded, ; letter of secretary extremely improper and ill-judged, ; former practice, ; passage from the letter, ; the idea of a dangerous precedent at hand, ; report unworthy of the notice of the house, ; the amendment wrong in principle and practice, ; farther consideration of the subject, ; amendment negatived, . f few, william, senator from georgia, , , , , ; on committee of arrangements for reception of president, ; appointed on judiciary committee, st congress, . findlay, william, representative from pennsylvania, , , , , ; on the ratio of representation, ; on the petition of catharine greene, ; on discharging committee in case of st. clair, ; on the reduction of the army, ; further remarks, ; on the official conduct of the secretary of the treasury, ; objects to additional duty on salt, ; on intruders on indian lands, ; on a salary for members of congress, ; on the rights of the house relative to treaties, . fishbourn, benjamin, nomination as naval officer at savannah rejected by the senate, . fitch, john, petition for protection of his rights in applying steam power to purposes of navigation, . fitzsimons, thomas, representative from pennsylvania, , , , , , , ; remarks on duties on imports--offers an amendment fixing certain duties on certain articles, ; on duty on molasses, , , ; on duty on madeira wine, ; on duty on teas, ; on sugar, ; on duty on beer, &c., ; do. on candles, ; advocates do. on unwrought steel, ; on duty on hemp, ; do. on nails, ; motion relative to duty on teas, ; proposes drawback on distilled spirits, ; proposes drawbacks on foreign goods exported, ; opposes low tonnage duties, ; explanation of his remarks relative to duty on molasses, ; on the time for continuing in force the impost bill, ; further remarks, ; on the finances, ; offers resolution for the appointment of commissioners to select site for a seat of government, &c., ; presents the address of friends in pennsylvania, &c., against the african slave trade, _note_, ; on treasury returns, ; against attendance of secretary of war, ; on the reduction of the army, ; on official conduct of secretary of treasury, ; on the pay of soldiers, ; on the french emigrants from st. domingo, ; on the commerce of the united states, ; on the preparations for the algerine war, ; against the embargo laws, ; defends the tax on coal, ; on duty on sugar, ; on an increase of the army, ; amendment relative to the president's speech, , ; on intruders on indian lands, . _french flag._--resolutions relating thereto, considered in the senate, ; moved to postpone consideration, ; it might convey a distrust of the sense of the senate on the republic, ; no difference of feeling in the senate on the subject, but more time was desirable, ; moved to strike out certain words, ; the parts of the president's communication, ; the subject was divided into two parts, ; other points considered, ; the senate should express their own sentiments, ; former practice, ; other cases considered, ; no difference, except in a matter of form, ; further considerations, ; motion carried, ; presentation to the house, ; do. description of, . _flag of the united states._--a bill from the senate to alter the flag of the united states, considered, ; if it is altered from thirteen to fifteen stripes because vermont and kentucky have been added, it may be necessary to alter it for a hundred years, ; very important not to offend the new states, ; the whole idea ridiculous, ; important to inform the rest of the world that two states were added, ; the alteration would cost every vessel in the union sixty dollars, ; bill ordered to third reading, . floyd, william, representative from new york, , , . _foreign intercourse.--see intercourse._ forrest, uriah, representative from maryland, ; on the commerce of the united states, . foster, abiel, representative from new hampshire, , , , . foster, dwight, representative from massachusetts, , ; on the execution of the british treaty, . foster, theodore, senator from rhode island, , , , , . _france, advance of money to._--the report relative to an advance of money requested by the minister of the french republic, considered, ; american citizens have claims for indemnification, why use the money to pay to france before it is due, ; the cause of france and this country inseparably connected, ; they are our old allies, ; the loan in europe was obtained for the defence of this country--it would be imprudence to apply it to any other purpose, ; no ground for a plea of necessity for giving this money, ; no good reason for disposing of this money in this way, ; complaints have arisen of want of money in the treasury since that has been proposed, ; bill amended and passed, . _france._--letter of french king, ; resolutions on courtesies of, . _franking privileges.--see post office bill._ franklin, benjamin, death announced to the house, ; eulogy on, in france, sent to senate, . franklin, jesse, representative from north carolina, . _freedom of conscience._--amendment to the constitution, debate on, . freeman, nathaniel, jr., representative from mass., ; on the answer to the president's speech, . frelinghuysen, frederick, senator from new jersey, , . _french committee_ of public safety, address of, . _french minister's_ address to the president on the presentation of the flag of the french republic, . _french refugees._--the petition of the committee appointed by the legislature of maryland to draw and distribute the money appropriated by that state to the french refugees, considered, ; three thousand fugitives from st. domingo had been at once landed, ; what article of the constitution grants a right to congress to expend on benevolent objects the money of their constituents? ; a dangerous precedent would be established, ; generosity of the english parliament in , ; perhaps some other mode can be devised, ; as much authority for relieving these fugitives as for indemnifying citizens for losses by british pirates, ; the two cases widely different, ; no difficulty in this matter, we are bound by the law of nature and of nations to relieve the citizens of a republic who were our allies, and formerly our benefactors, ; look at our treatment of the indian embassies, ; delay was desirable in this matter, ; its legality is doubtful, ; an appeal to our humanity is out of place, ; petition for the speedy action of congress on the memorial, ; moved to pay $ , and negotiate the matter with the french minister, ; house has a right to, ; passage of the motion warmly urged, ; not to be tied up by the constitution in such a case, ; it should be done as an act of charity, ; motion passed, . _frontiers, protection of._--bill for further and more effectual provision for the protection of the frontiers, considered, ; moved to strike out the section for raising three regiments of infantry and a squadron of dragoons, ; the indian war is unjust and unwise, ; the general treatment of the indians unwise and impolitic, ; _note_, ; peace may be obtained at less expense than is necessary for war, ; the roving disposition of frontier settlers should be checked, ; no hope of success while britain retains possession of the posts, ; should be content to defend the frontier and not invade, ; frontier militia better than regular troops, ; even to secure the objects in view no such increase in the military establishment necessary, ; the troops to be employed should be raised at once, ; information on the report not implicitly reliable, ; frontier militia the best troops, ; the expense a serious matter at this time, ; is not the object of this movement to raise a standing regular military force? ; no one knows for what reason the war has been carried on three years, ; it is said a sum might be appropriated to enable the executive to act as circumstances require, but it is the duty of the house to appropriate money for specific purposes, . we could have had the british posts if an embargo had been laid, ; no man who regards self-preservation can doubt the justice of the war, ; the murders and depredations of years call for redress, ; the whites have seldom committed depredations, ; peace is utterly unattainable by friendly efforts in the present state of affairs, ; frequent attempts at treaties have been made, but in vain, ; indians have rejected our offers and added insults, ; it is too late to inquire into the justice of the war, ; a force must be raised, and the question is what the force shall be, ; the number proposed is not extravagant if the number of the indians is considered, ; every reason to expect a most formidable opposition, ; the objection of increased expense is vain compared with an unsuccessful campaign, ; the experience of virginia and kentucky offers no inducement to the government to follow any other plan than the one proposed, ; militia quickly disband or become insubordinate from slight causes, ; cornplanter's speech referred to, ; galleries cleared and speech confidentially read, ; _note_, cornplanter's speech, ; subject originally referred to the secretary of the treasury, ; consequences of that reference, ; clauses of the bill, ; what reflection arises from a contemplation of this bill, ; motion to strike out, lost, ; bill passed, . _south-western frontier_, to protect more effectually, bill considered, ; when all other schemes have been voted down for raising a military force, it appears in this form, ; regular troops useless in this service, ; this no part of a system, ; indians are fifteen thousand strong, ; a body of militia only is wanted, ; this bill proposes a bounty for raising a particular corps, while the army needs all to fill its deficiencies, ; indians eight thousand strong, ; posts do more mischief than service, ; experience of years, ; amendment lost, . _fugitives from justice._--bill of senate, , ; bill passed senate, ; read in the house, &c., ; passed, ; _note_, . g gale, george, representative from maryland, , ; on duty on beer, &c., . gallatin, albert, senator from pennsylvania, , ; proves citizenship, , , ; representative from pennsylvania, ; on the support of existing establishments, , ; on the call for papers relative to british treaty, ; on rights of the house relative to treaties, ; on the execution of the british treaty, ; on the admission of tennessee, , ; on the military and naval appropriation, , , , . _georgia_, vote for president, , . _general wayne_, resolutions of thanks to, considered, ; bad consequences might ensue from the practice of giving opinions of men, ; abundance of precedents, ; it must be shown that it is improper in any case to pass such a vote, or that this is an improper case, ; the resolution proper and unexceptionable, ; this point considered, ; it is simply a question of mere propriety, ; this propriety considered, ; resolutions adopted, . _general welfare_, clause examined and explained, . gerry, elbridge, representative from massachusetts, , , , , ; appointed on committee of supplies, ; on application to amend the constitution, ; doubts the power of congress to require oaths of state officers, ; reports a bill for the collection of duties, ; on effects of high duties, ; asks further investigations relative to duty on molasses, ; urges limitation of the impost bill, ; further remarks, ; doubts the power of the president to remove heads of departments, ; on organization of treasury department, ; called to order, ; _note_ on, ; on board of treasury, ; on president's power of removal, ; on identity of reporting plans and originating money bills, ; on the finances, ; on the amount of pay of members of congress, , ; on the form of amending the constitution, ; on the terms federalist and anti-federalist, ; on the right and obligation of instruction, , , ; urges delay in fixing seat of government, ; on manner in which secretary of the treasury shall make his report, ; on the report of the secretary of the treasury, ; on the humanity of the quaker memorial, ; upon constitutionality of interference of congress with slave trade, ; on a seat of government, ; further remarks, ; on vacancy in the presidency, ; on interference of excise officers in elections, ; on the commitment of the bill for a bank of the u.s., ; speech on the bank, ; on the ratio of representation, ; further remarks, ; does a resignation produce a vacancy, ; offers a resolution on reports of secretary of treasury, ; on vacancy of presidency, ; on the bill for the encouragement of the cod fisheries, ; on the publication of the debates, ; on attendance of secretary of war, ; on discharging committee on defeat of st. clair, , . gilbert, ezekiel, representative from new york, , , ; on a salary for members of congress, . giles, william b. representative from virginia, , , , , , ; on excise bill, ; on vacancy in the presidency, ; speech on the bank of the u.s., ; on the ratio of representation, ; is a resignation a constitutional vacancy, ; on vacancy of presidency, ; on the bill for the encouragement of the cod fisheries, ; on the stamp of american coin, ; on the apportionment bill, ; against attendance of secretary of war, ; on attendance of secretary of war, ; on discharging committee on defeat of st. clair, , ; on the official conduct of the secretary of treasury, ; further remarks, ; on the flag of the union, ; on the french emigrants from st. domingo, ; on conducting the algerine war, , ; examination of principles relative to the sequestration of british debts, ; against the continuance of the embargo, ; on modifying it, ; urges postponement of indemnity resolutions, ; against increase of the army, ; on the advance of money to france, ; on the bill to raise a force for the protection of the frontier, ; on admitting the delegate south of the ohio, ; on the president's speech, , ; reports a bill on soldier's pay, ; on the resolutions of thanks to gen. wayne, , ; on the investigation of losses by pennsylvania insurgents, ; on an amendment to the naturalization laws, ; on excluding titled foreigners from citizenship, , , , ; on reference of letter of secretary of war, , ; on the reduction of salaries, ; on the frontier settlers, ; on the answer to the president's speech, ; on the attempt at bribery, by robert randall, ; on the resolution relative to bribery, ; on the support of existing establishments, ; on establishing indian trading houses, ; on a salary for members of congress, ; on the pay of the speaker, , ; on rights of the house relative to treaties, ; on the execution of the british treaty, ; on the army establishment, . gillespie, james, representative from north carolina, , ; on the right to indian lands within a state, . gillon, alexander, representative from south carolina, ; in favor of continuing the embargo, ; opposes the tax on salt, ; against duties on tobacco and sugar, ; on the advance of money to france, , ; on force to protect the s. w. frontier, ; deceased, . gilman, nicholas, representative from new hampshire, , , , , , , , ; on a committee to report a bill regulating oaths, . _glass, window and other_, duty fixed, . glenn, henry, representative from new york, , . goodhue, benjamin, representative from massachusetts, , , , , , , , ; on duty on molasses, , ; on duty on salt beef, ; on manufacture of nails, &c., ; on duty on teas, ; on giving preference to american shipping, ; the object to raise revenue, ; opposes deliberation on subject of president's title, ; thinks duties too high for collection, excepting that on molasses, ; on connection of molasses trade with the fisheries, ; on concurrence of the senate in appointments, ; on location of the seat of government, ; further remarks, , , ; on ratio of representation, ; on the bill for the encouragement of the cod fisheries, ; further remarks, ; on the flag of the union, ; on the commerce of the united states, ; on the preparations for the algerine war, ; moves to refer indemnity resolutions to committee of the whole, ; opposed to referring indemnity resolutions to committee on sequestration of british debts, , ; urges delay in laying duties on tobacco and sugar, ; on a salary for members of congress, ; on the pay of the speaker, ; on the execution of the british treaty, . goodrich, chauncey, representative from connecticut, . gordon, james, representative from new york, , , , . grayson, william, representative from virginia, . _great britain, treaty with.--see treaty, &c._ _great britain, retaliatory measures upon.--sequestration of debts due_ to, considered, ; considering the conduct of great britain sequestration, merely, is a great lenity, ; no hope of the restitution of our property plundered on the seas--no possibility of indemnification, ; no other method by which to enforce our claims, ; it would be warrantable to sequester without negotiation, ; with these resolutions, we may have peace--without them we shall have war, ; not for the interest of the united states at this time, ; the proposition is to arrest, not confiscate debts due to british subjects, ; law of nations considered, ; by this measure we make their motives for peace more weighty, and show our amicable disposition, ; various points considered, ; two points involved--the right of one nation to sequester the property of another in any possible case, and the policy of exercising this right at this time, ; these points considered, , , , , , , . _non-intercourse with great britain_, considered, ; moved to prohibit all commercial intercourse between citizens of the united states and subjects of great britain, as respects articles of the growth or manufacture of great britain, ; the line of conduct that should be pursued, ; this measure, a war measure, ; no representation of our injuries has been made, ; how far does cool, temperate reflection direct our conduct? ; constitutional considerations, ; answers to them, ; admitting the constitutionality and the right of the committee to originate the measure, and the aggression of great britain; are these principles sufficient to justify so harsh a measure?. ; resolutions adopted, . _embargo, continuation of_, considered, ; reason for its adoption ceased, ; numerous inconveniences have arisen from the measure, ; british conduct now altered, ; should not be revoked until a change of system by the british government warrants it, ; if it continues, the value of our imports will rise one hundred per cent., ; france will suffer considerably if it is continued, ; the other measures of the system have been laid aside and this should be, ; although the reasons for it have not changed, it should be discontinued, as it will now operate against ourselves and our allies, ; farmers suffer from the present restraints, ; letter from the merchants of charleston, ; various considerations for its continuance, ; the reason for the embargo, ; reason for its continuance, ; resolution for its continuance lost, . _indemnity for spoliations_ considered, ; resolution that the united states indemnify her citizens for property captured and confiscated by great britain, &c., ; moved that the resolution be referred to the committee of the whole, ; moved to amend by referring it to the committee to whom was referred the resolution for the sequestration of british debts, ; objected that the subject was distinct and separate, ; urged that the two subjects ought not to be separated, ; wrong to bring up this motion alone, ; only course of indemnity was by sequestration, ; security and protection should be extended to all interests, and redress for all injuries, ; if present negotiations fail, we owe it to our citizens to obtain redress, ; the reference moved is not fair for various reasons, ; a tax should be laid to effect indemnity to our citizens, ; the subject should be laid aside for the present, ; there are strong reasons for indemnity, and also against connecting it with sequestration, ; amendment agreed to, . green, ashbel, chosen chaplain, . greene, catharine, petition of widow, to obtain an indemnification from united states against certain engagements of general greene, undertaken while commanding officer of u. s. army, ; recommendation of secretary of treasury, ; pressing necessity compelled general greene to become surety, for which indemnity is now claimed, ; the claim is just, ; a resolution moved, ; three alternatives were left to the committee, ; claim should be granted by special law as matter of right, ; circumstances connected with the evacuation of charleston, ; how to distinguish between the articles necessary and the other goods, ; danger of establishing a bad precedent considered, ; the measure not proper or just, ; contract not beneficial to the united states, ; character and circumstances of general greene, ; of the manner of conducting the affairs in south carolina, ; points of contest before the committee, ; those points considered, ; further debate, ; resolution negatived, ; further resolution relative to the report of secretary of the treasury, ; resolutions on indemnity, ; do. passage, ; petition for indemnity against the demands of harris & blatchford considered, ; report of committee, ; resolution referred to committee on claims, ; facts, . greenup, christopher, representative from kentucky, , , ; on the flag of the union, ; on intruders on indian lands, . gregg, andrew, representative from pennsylvania, , , , , ; on the sense of the house relative to the british treaty, . griffin, samuel, representative from virginia, , , , , , , ; on committee for reception of president, . griswold, roger, representative from connecticut, ; on rights of the house relative to treaties, ; on the execution of the british treaty, . grout, jonathan, representative from massachusetts, , , . grove, william barry, representative from north carolina, , , , , . gunn, james, senator from georgia, , , , , , . h hampton, wade, representative from south carolina, . hancock, george, representative from virginia, , , . hancock, john, votes for, as vice president, in , . harper, robert g., representative from south carolina, , ; on difficulties with the indians, ; on the answer to the president's speech, ; on the randall bribery case, ; on a stenographer for the house, ; on establishing indian trading-houses, ; on rights of the house relative to treaties, ; on the sense of the house relative to the british treaty, . harrison, carter b., representative from virginia, , , . harrison, robert h., votes for, as vice president, . hartley, thomas, representative from pennsylvania, , , , , , , ; speech on laying duties on imports, ; on duties of the secretary of the treasury, ; on the form of amending the constitution, ; on the right of instruction, ; on location of the seat of government, ; further remarks, ; on the propriety of naturalization laws, ; urges residence as a condition of naturalization, ; further remarks, ; on the quaker memorial, ; calls up memorial of pennsylvania society, ; further remarks, ; on discrimination among the public creditors, ; moves report on memorial of officers of the navy, ; do. remarks on, ; on a seat of government, ; on the petition of catharine greene, ; on the reduction of the army, ; further remarks, ; on indemnification to sufferers by pennsylvania insurgents, , ; on rights of the house relative to treaties, . hathorn, john, representative from new york, , , , . havens, jonathan n., representative from new york, . hawkins, benjamin, senator from north carolina, , , , , , . heath, john, representative from virginia, , , ; on indemnification to sufferers by pennsylvania insurgents, ; on the execution of the british treaty, . heister, daniel, representative from pennsylvania, , , , , , , ; appointed by the house to make list of votes for president as they are counted in the senate, ; advocates encouragement to growth of hemp by duty, ; appointed on committee to draft bill on tonnage duties, ; moves to select harrisburg for the seat of government, . _hemp_, debate on duty on, , ; do. fixed, . henderson, thomas, representative from new jersey, . henry, john, senator from maryland, , , , , , , . hillhouse, james, representative from connecticut, , , , , ; on the ratio of representation, ; on vacancy of presidency, ; on the reduction of the army, ; on official conduct of secretary of treasury, ; on the advance of money to france, ; on the president's speech, , ; on thanks to general wayne, ; on damages by pennsylvania insurgents, , ; on the admission of foreigners to citizenship, ; on the resolutions relative to intruders on indian lands, ; on the resolution relative to bribery, ; on a salary for members of congress. ; on the pay of the speaker, ; on the rights of the house relative to treaties, ; on the execution of the british treaty, ; on the sense of the house relative to the british treaty, . hindman, william, representative from maryland, , , . holland, john, representative from north carolina, ; on rights of the house relative to treaties, ; on the execution of the british treaty, . holten, samuel, representative from massachusetts, , . _house_, elects frederick a. muhlenberg speaker, ; of representatives, meets in senate chamber to count electoral votes, ; meets senate to count electoral votes, ; proceedings relative to washington's inaugural, ; answer to same, , ; thanks presented to the speaker, ; conference with the senate on the impost bill, ; results of, ; adjournment of, ; journal of, title of, ; answer to president's speech, ; answer to president's address at d session, st congress, ; answer to president's message, ; answer to the president's message, ; answer to the president's address, ; answer of, to president's speech, ; answer to the president's speech, d session, d congress, . huger, daniel, representative from south carolina, , , , , . hunter, john, representative from south carolina, , ; on the relief of the french emigrants, . huntingdon, samuel, votes for, as vice president, . huntington, benjamin, representative from connecticut, , , ; on application to amend the constitution, ; urges limitation of the impost bill, ; on the power of removal, ; on the amendment to the constitution relative to freedom of conscience, ; opposes easy terms of naturalization, ; on memorial of officers of navy, ; on a seat of government, . i _imports.--see duties_ on imports. _indemnity_, for spoliations.--_see great britain._ _indian lands within a state, rights over._--the claim of thomas person to certain lands on the frontier of north carolina, and ceded by the united states commissioners to the indians, considered, ; _note_, ; the conduct of other states, ; the government of the united states has converted property of the citizens of north carolina, and they ask compensation, ; examination of authorities on the rights of the sovereign to take property, ; detail of the circumstances of the present dispute, ; the claim of north carolina to sell the land was wrong, ; the cause of all the disputes with the federal government, ; have the united states taken away any claim which the purchasers of these lands had, ; suitable method to settle the matter, ; indians never occupied the lands, ; on the limits of the states and the right to what was jointly acquired, ; north carolina could grant only the pre-emption right, ; further details respecting the grants in north carolina, ; these lands within the limits guaranteed by the articles of confederation, ; further particulars, ; resolutions reported to the house, ; do. further reported, . _indian lands disposed of by the legislature of georgia_, considered, ; resolutions on the subject, ; they subject persons to martial law, ; amendment proposed, ; also that persons in pursuit of indians should not be liable to the law, ; useless to expend money to protect the frontier if this permission is granted, ; better declare there shall be no frontier, ; no man could be arrested under this amendment, ; amendment carried in committee, ; reported to house, ; reasons for authorizing pursuit of indians, ; importance of the amendment, ; further considerations, ; lost, . _indians, southern_, treaty to be negotiated with, . _indian trading houses_, bill for establishing trading houses for supplying indians considered, ; tends to conciliate an unhappy and distressed people, ; bill of utmost consequence, ; system of arrangements for the frontiers proposed, ; bill to establish trading post considered, ; amendments made, ; the object of the bill unattainable, ; it effects a change in our system, ; influence of the canada traders, ; _note_, ; objects of the measure, ; bill put on its passage, ; principles of the bill considered, ; no opinion of governmental bargains, ; _note_, ; bill passed, . _indian tribes._--message from the president on disputes between the same and some of the states, . _instruction_, right of debate on, . _insurgents of pennsylvania.--see pennsylvania insurgents._ _intercourse foreign_.--on the bill providing means of intercourse with foreign nations, ; moved to strike out thirty and insert forty thousand dollars, ; reasons urged in opposition, ; reasons urged in favor of the motion, ; motion adopted, . _invalid pensions_, bill reported, . irvine, william, representative from pennsylvania, , . izard, ralph, senator from south carolina, , , , , , , ; on committee on future disposition of papers of late secretary of congress, ; added to judiciary committee, ; on committee for conducting reception of president, ; on committee to wait on vice president, . j jackson, geo., representative from virginia, . jackson, james, representative from georgia, , , ; remarks in favor of reducing duties, ; remarks on tonnage duties, ; on power of congress to require oaths of state officers, ; objects to high duties on account of expense of their collection, ; temptation to smuggle, ; considers subject of title for president as trifling, ; urges postponement of consideration of duty on african slaves imported, ; further remarks, ; urges limitation to impost bill, ; on the power of the president to remove officers, ; remarks on citizenship and foreign allegiance, ; opposes discrimination in the pay of senators and representatives, ; further remarks, ; on the form of amending the constitution, ; on the rights of instruction, ; on location of a seat of government, ; on amendments of the senate to house bill on seat of government, ; on subjects embraced in the report of the secretary of the treasury, ; further remarks, , ; on testimonials of behavior and conduct as requisites of naturalization, ; favors a progressive and probational naturalization, ; further remarks, ; a funded debt is an injury, ; further remarks, , , ; opposes a commitment of the quaker memorial, ; on property of master in the slave, ; on discrimination among the public creditors, ; further remarks, ; on memorial of officers of the navy, ; on answer to the president's message, ; further remarks, ; on price of public lands, ; moves to strike out essential part of first clause of bill relating to duties on distilled spirits, ; remarks on, ; further remarks, , , , ; on the commitment of the bill for bank of the united states, ; speech on the bank, ; petition on election and return of anthony wayne, ; senator from georgia, , . jacobs, isaac, representative from pennsylvania, . _jails of the states_, resolutions on, . jay, john, votes for, as vice president in , . jefferson, thomas, desires to return from france as minister, ; votes for, as vice president in , . johns, kinsey, claims a seat as senator from delaware--claim considered, ; rejected, . johnson, wm. s., senator from connecticut, , , ; resigned, ; on committee on future disposition of papers of late secretary of congress, ; on committee of arrangements for reception of president, ; on committee to prepare answer to washington's inaugural, ; on committee on titles of president and vice president, . johnston, samuel, senator from north carolina, , , , . john torrey.--petition of, in committee of the whole on report of secretary of treasury, ; congress promised half-pay to the officers who should continue in service to _the end of the war._--major torrey continued in service till near end of and died, did he continue in service to the end of the war? ; peace concluded april, , ; what was the intention of the parties in this contract? ; when did the war end? ; what does the law of nations say? ; distinction between preliminaries and a definite treaty by the law of nations, ; objections considered, ; the question does not turn on a judicial principle, ; certain established rules have been observed in settling with every officer, ; terms of contract decided by the sovereign power, ; motion for accepting report carried, . _judiciary_, senate committee on, first congress, . k _kentucky_, memorial of a convention in, ; vote for president in , . key, philip, representative from maryland, . king, rufus, senator from new york, , , , , , , , ; on answer to presidents speech, . kitchell, aaron, representative from new jersey, , , , , ; on the ratio of representation, ; on the execution of the british treaty, . kittera, john w., representative from pennsylvania, , , , , ; on reference of letter of secretary of war, ; on the right to indian lands within a state, ; on the execution of the british treaty, . l la fayette, bill relative to the accounts of, ; son of, letter from, . _lands, western_, disposal of, ; report of committee, ; plan of land office, . _see public lands._ langdon, john, senator from new hampshire, , , , , , , , ; elected president of senate, ; on committee of arrangements for reception of president, ; address to vice president on his taking the chair, ; administers the oath to the vice president according to law, ; elected president of senate _pro tem._, in the absence of vice president, and president _pro tem._, ; elected president _pro tem._ of senate, . latimer, henry, representative from delaware, . latimer, hugh, senator from maryland, , . lawrence, john, representative from new york, , , , , ; remarks on laying duties on imports as proposed, ; remarks on duty on distilled spirits, ; favors high duty on beer, ; do. duty on candles, ; advocates duty on salt, , ; on requiring oaths of state officers, ; favors permanent rate of tonnage duties, , ; on the object of duties, ; doubts the propriety of limiting the impost bill, ; on duties of secretary of treasury, ; on the compensation of the president, ; opposes furnishing houses, &c., ; on the form of amending the constitution, ; on the location of the seat of government, ; on the manner of persuading members, ; on the constitutional requirements for a seat of government, ; on the mode and reason for admitting foreigners to citizenship, ; further remarks, ; on the validity of the full amount of the debt, ; on effects of stopping importation of slaves, ; on pennsylvania memorial, ; presents the address of society of friends in new york against the african slave trade, ; on discrimination of public creditors, ; on a seat of government, ; further remarks, ; moves to strike out "potomac," and insert baltimore, ; on price of public lands, ; further remarks, ; on excise bill, ; on vacancy in the presidency, ; on officers, ; on the commitment of the bill for a bank of the united states, ; speech on the bank, ; on claim of john torrey, ; on ratio of representation, ; further remarks, ; on the bill for the encouragement of the cod fishery, ; on attendance of secretary of war, , ; on discharging committee on defeat of st. clair, ; on official conduct of secretary of treasury, ; further remarks, . learned, amasa, representative from connecticut, , , , . lee, richard bland, representative from virginia, , , , , , ; on duty on steel, ; on duty on nails, &c., ; makes report of committee on messages between the two houses, ; favors a limited time for the impost bill to be in force, ; on citizenship during absence, ; favors discrimination in the pay of members of the two houses of congress, ; offers a resolution on the principles which should control the choice of a seat of government, ; further remarks, ; vote, ; further remarks, ; do. on the potomac, , ; in favor of new york for seat of government, ; do. on amendments of the senate to house bill on seat of government, ; on a seat of government, ; on official conduct of secretary of treasury, ; on harmony between the eastern and southern states, . lee, richard henry, senator from virginia, , ; on committee on rules in cases of conference, st congress, ; do. on manner of electing chaplains, ; do. on rules of business, ; appointed on judiciary committee, st congress, ; on committee for conducting reception of president, ; on committee on titles of president and vice president, . leonard, george, representative from massachusetts, , , , , . lewis, ----, counsel for petitioners relative to seat of albert gallatin, ; speech of, , . _liberty street_, new york, name of, . _lighthouses, &c._, bill for the establishment of, passed, . lincoln, benjamin, votes for, as vice president, . linn, william, elected chaplain of the house, . _list of persons_ employed in treasury department reported to the house, ; do. employed in war department, reported to the house, . livermore, samuel, representative from new hampshire, , , , , ; considers motion to lay duty on african slaves improper at that time, ; on the time of extending the impost bill, ; on the executive departments, ; on removals, ; on the power to remove officers, ; on the power of originating bills, ; on a salary for the president, ; on form of amending the constitution, ; motion relative to the amendment of the constitution touching freedom of conscience, ; on the doctrine of instruction, ; further remarks, ; on funding the debts of the states ; do. on the reduction of the debt from its nominal value, ; on discrimination among the public creditors, ; on a seat of government, ; on excise bill, ; on excise officers, ; on vacancy in the presidency, , ; on the bill for the encouragement of the cod fisheries, ; on american coins, ; further remarks, ; against attendance of secretary of war, ; on official conduct of secretary of treasury, ; senator from new hampshire, , , . livingston, edward, representative from new york, ; on salary for members of congress, ; on the treaty with great britain, ; on the rights of the house relative to treaties, . locke, matthew, representative from north carolina, , , . lyman, samuel, representative from massachusetts, ; on rights of the house relative to treaties, ; on the execution of the british treaty, . lyman, william, representative from massachusetts, , , ; on the flag of the union, ; opposes the duties on manufactured tobacco and refined sugar, ; on the president's speech, ; on reference of letter of secretary of war, ; on intruders on indian lands, ; on the reports of the debates, ; on rights of the house relative to treaties, ; on the admission of tennessee, . m mcdowell, joseph, representative from north carolina, , ; against duty on sugar, ; against raising a force for the protection of a s.w. frontier, ; on admitting the delegate south of the ohio, ; on the president's speech, , ; on amending the naturalization laws by requiring foreigners to renounce their slaves, ; on the right to indian lands within a state, ; on difficulties with the indians, . mcintosh, lachlan, nominated as naval officer at savannah, . maclay, william, senator from pennsylvania, , , ; appointed on judiciary committee, first congress, ; on committee on future disposition of papers of late secretary of congress, ; on committee on rules in cases of conference, first congress, ; on manner of electing chaplains, ; on rules of business, . maclay, samuel, representative from pennsylvania, . macon, nathaniel, representative from north carolina, , , , ; on the right to indian lands within a state, ; on the resolution relative to the heirs of count de grasse, ; on establishing indian trading houses, , _note_, ; on the admission of tennessee, . _madeira wine_, proposed duty on, ; duty on, . madison, james, jr., representative from virginia, , , , , , , , ; informs the senate that the house agrees that the notifications of the election of president and vice president be made by the former, ; on a committee to report a bill regulating oaths, ; speech introducing the measure for imposing impost and tonnage duties, ; his manner of proceeding, _note_, ; further speech on laying duties on imports, ; on duty on distilled spirits, ; on duty on molasses, ; on duty on salt beef, ; on duty on beer, ; proposes duty on hemp, , ; on duty on nails, &c., ; on duty on salt, ; opposes duty on teas, ; on drawback on distilled spirits, ; on high duties, ; reports an answer to washington's inaugural, ; on tonnage duties and their equality, ; on tonnage duties, , ; do. discrimination of, ; on the scale of duties proposed, , ; where the burden of duties would operate, ; opposes title for president as hostile to spirit of the government, , ; thinks arguments against duty on molasses inconsistent, &c., ; further remarks, ; remarks on the motion to lay a duty on african slaves imported, , ; moves a limitation clause to the impost bill--respecting the time of its continuance, ; remarks on the same, , ; withdraws his motion to limit impost bill and introduces another, ; on organization of the treasury department, ; moves the organization of three departments, ; on power of president to remove officers, ; further remarks, ; remarks on citizenship, ; on the admission of rhode island, ; on the power of removal of officers, ; on the power to report plans of revenue by the secretary of the treasury, ; on the compensation of the president, ; on the compensation of the vice president, ; thinks discrimination in the pay of senators and representatives necessary, ; moves a discrimination in the pay of members of the two houses, ; on the form of amendment of the constitution, ; on the amendment to the constitution relative to the freedom of conscience, ; further remarks, ; on the right of instruction, ; on the principles which should govern the selection of a seat of government, ; further remarks, , , ; on deliberation in choosing the seat of government, ; on the place for a seat of government, ; further remarks, ; constitutional objection, ; further remarks on amendments of the senate, ; further remarks, ; on census of united states, ; on residence as essential to naturalization, ; on the constitutional privilege to import african slaves, ; further remarks favoring the commitment of the quaker memorial as harmless, ; on propriety of committing pennsylvania memorial, ; moves to discriminate between original creditors and present holders of public debt, ; do. speech thereon, , ; announces the death of dr. franklin, ; on a seat of government, ; further remarks, ; on answer to president's message, ; on excise bill, ; on vacancy in the presidency, ; on the commitment of the bill for a bank of the united states, ; do. speech on the bank, , ; on the bill for the encouragement of the cod fisheries, ; on attendance of the secretary of war to report, , ; on the case of general st. clair, ; further, ; on official conduct of secretary of treasury, ; on the french emigrants from st. domingo, ; on the relief of the french emigrants, ; on the preparations for the algerine war, , , ; speech on the commerce of the united states, , , ; on duties on tobacco and sugar, ; against the bill to increase the army, ; on the delegate south of the ohio, ; on indemnification to sufferers by pennsylvania insurgents, ; on amending naturalization laws, ; on the exclusion of titled foreigners from citizenship, ; on the renunciation of nobility for citizenship, , ; on reference of letter of secretary of war, ; on the randall bribery case, ; moves a resolution on post roads, ; on the pay of the speaker, ; on the call for papers on the british treaty, ; on rights of the house relative to treaties, ; on the resolutions relative to the refusal of the president to furnish papers on the treaty with great britain, ; on the execution of the treaty with great britain, . malbone, francis, representative from rhode island, , , . _malt_, duty on fixed, . marshall, humphrey, senator from kentucky, . martin, alexander, senator from north carolina, , , . _maryland_, offers ten miles square to congress for a seat of government, ; vote for president, , . mason, stevens t., senator from virginia, ; on answer to the president's speech, . _massachusetts._--vote for president, , . matthews, george, representative from georgia, , . matthews, james, elected doorkeeper, . maxwell, cornelius, appointed messenger by the senate, . mebane alexander, representative from north carolina, , . _members_ of the house.--_see representation._ mercer, john francis, representative from maryland, , ; on the protection of the frontiers, ; on the stamp of american coins, ; on the publication of the debates, ; on official conduct of secretary of treasury, ; on the legality of the sequestration of british debts, . _message, &c._, between the two houses--report of house committee, ; from the president, ; of the president, ; from the president, on commerce with england, ; of the president, first session, second congress, , _note_, ; of the president to senate, on fugitives from justice, ; from the president on defeat of st. clair, ; of the president, with a veto of the apportionment bill, ; of the president to second session of second congress, ; from the president, on spanish interference, ; of the president to first session of third congress, ; of the president, on foreign relations, ; of president, relative to south-western frontier, ; from the president, relative to foreign relations, ; of the president, to second session of third congress, ; of president to the house, declining to furnish papers relative to the treaty with great britain, , _note_, ; message, see _address_. milledge, john, representative from georgia, , ; on the reduction of the army, ; on the rights of the house relative to treaties, . milton, john, votes for, as vice president, in , . _mint, establishment of._--bill from the senate to establish a mint considered, ; moved to strike out clause requiring a representation of the head of the president, &c., on the coins, and insert emblems of liberty, &c., ; the practice of monarchs not to be regarded ; the emblems of liberty more acceptable to the people, ; no consequence whether the head of liberty or that of the president is on the coins, ; motion carried, ; disagreement of the senate, ; moved that the house recede, ; no friend of the president could refuse such a tribute to him, ; compared with the other representation, ; tyrants' heads have been stamped on the coin, ; republican cautions not a subject to be treated with levity, ; motion to recede lost, ; facts relative to the coinage of cents, ; committee of examination, &c., appointed, . mitchell, stephen mix, senator from connecticut, , . _molasses_, proposed duty on, ; duty on, ; duty on considered, ; decided, . _see duties on imports._ monroe, james, senator from virginia, , , . montgomery, william, representative from pennsylvania, , ; on indian trading houses, . moore, andrew, representative from virginia, , , , , , , , ; on duty on hemp, , ; opposes duty on salt as unjust, ; opposes discrimination in the pay of members of the two houses, ; on the reduction of the army, ; on the execution of the british treaty, . morris, robert, senator from pennsylvania, , , , , , , . muhlenberg, frederick a., representative from pennsylvania, , , , , , , , ; elected speaker, ; speech on thanks tendered him by the house, ; chosen speaker, ; do. _note_, ; against a duty of two cents on sugar, ; answer to thanks of house, . muhlenberg, peter, representative from pennsylvania, , , , , , , ; on committee for reception of president, ; appointed on a committee to draft a bill relative to the importation of african slaves, . murray, william vans, representative from maryland, , , , , ; does a resignation produce a vacancy, ; on the bill for the encouragement of the cod fisheries, ; further remarks, ; on attendance of secretary of war, ; on discharging committee on defeat of st. clair, ; on the reduction of the army, ; on the relief of the trench emigrants, ; on conducting the algerine war, ; against continuing the embargo, ; on force to protect s. w. frontier, ; on the president's speech, , ; on thanks to gen. wayne, ; on the renunciation of nobility for citizenship, ; for the reference of letter of secretary of war, , ; on the right to indian lands within a state, ; on indian trading houses, ; on intruders on indian lands, ; on the answer to president's speech, ; on the attempt at bribery by robert randall, , ; statement of the case of randall and whitney, ; on establishing indian trading-houses, ; on the support of existing establishments, , ; on the pay of the speaker, ; opposes the resolution calling for papers on british treaty, . n _nails and spikes_, debate on duty on, ; do. fixed, . _naturalization laws._--the bill under consideration, ; motion to strike out "and shall have resided in the u. s. one year," ; it was policy to let aliens come in and take the oath, and hold lands without any residence, ; some security for their fidelity and allegiance was required, ; without a residence the terms are too cheap, ; policy of european nations, ; does not apply here, ; we should be inconsistent by prescribing too long a term for the enjoyment of our privileges, ; foreign merchants could evade additional duties on foreign vessels unless residence was required, ; the reason of admitting foreigners is to encourage emigration and people our large tract of country, ; a long term may restrain emigration, ; cautions necessary to guard against abuses, ; the object is not merely to swell the catalogue of the people, but add to the wealth and strength of the community, ; the admission step by step is a nice question, but residence should be required, ; a sufficient residence should be required for the privilege of electing and being elected, ; many of the states admit aliens step by step, ; doubtful if the constitution authorizes congress to say on what terms aliens may hold land in the respective states, ; congress possesses power only to make a uniform rule of naturalization, ; if the motion prevails, vagrants, paupers, and outcasts of europe will find too easy an admission to citizenship, ; some probation necessary and testimonials of a proper and decent behavior, ; no creditable man can think such terms difficult, ; grand jury or district courts could determine on the character of the man, ; excluding bad men impracticable, ; propriety of residence doubted, ; every person, rich or poor, adds to our wealth and strength, ; citizenship can be made progressive, ; policy of settling the vacant territory by emigration doubtful, ; some probation requisite, ; some classes should be received with encouragement, ; others excluded, ; naturalization progressive in england, ; in some states an act of the legislature is now required--this is sufficiently easy, ; unless some residence is required confusion may arise, ; no person should hold land without a residence and an intention of becoming a citizen, ; story of voting in philadelphia, ; two years inserted in the bill, _note_, ; act to establish a uniform rate of naturalization considered, ; moved to insert the words "attached to a republican form of government," ; or "attached to the constitution of the united states," ; both superfluous, ; word republican very indefinite, ; do. used in the constitution, ; difficult for many citizens to find two reputable witnesses, ; other amendments proposed, ; do. to strike out word "moral" in the words good moral character, ; the word too strict, ; the whole useless, ; moved to exclude from citizenship any emigrant who had borne a title of nobility, ; reasons for the same, ; better be required to renounce every thing contrary to the spirit of the constitution, ; nothing more grateful to a republican than to see them renounce their titles, ; the title is destroyed when the allegiance is broken, ; if we cannot manufacture a commodity at home, it is unlawful to import it from abroad, ; yeas and nays threatened, ; moved to amend by requiring the emigrant to renounce the possession of all slaves, ; not a proper connection with the subject, ; the amendment unnecessary, as slavery was declining fast as possible, ; the amendment a retaliation upon those who call for the yeas and nays, ; both amendments unnecessary, ; what right had the house to say one class of people shall not have that kind of property which others have? ; amendment withdrawn, ; further discussion relative to renouncing titles of nobility, , , , , ; amendment adopted, . _naval establishment_, on a permanent, . _navy, officers of._--report of the committee on the memorial of officers of the navy relative to a difference of pay compared with the officers of the army, ; justice of their claims, ; origin of commutation, ; the grounds of their claims, ; circumstances which led to a distinction, ; no precedent for extending commutation to officers of the navy, ; examination of the grounds of these demands, ; difference between officers of the army and navy, ; claims strictly just, . neville, joseph, representative from virginia, , . new, anthony, representative from virginia, , , . _new hampshire_, vote for president, , . _new jersey_, vote for president, , . _new york city_ corporation, vote of thanks to, . _new york_, vote for president in , . nicholas, john, representative from virginia, , , ; on the french emigrants from st. domingo, ; on the relief of, ; speech on the commerce of the united states, ; on the power of the algerines, , ; on the advance of money to france, ; on the bill to protect the south-western frontiers, ; on the president's speech, , , ; on indemnification to sufferers by the pennsylvania insurgents, , ; on amending the naturalization laws, , ; on exclusion of titled foreigners from citizenship, ; on the reference of a letter of the secretary of war, ; on the reduction of salaries, ; on the right to indian lands within a state, ; on the randall bribery case, ; on the resolution relative to bribery, ; on the support of existing establishments, ; on a stenographer for the house, ; on a salary for members of congress, ; on rights of the house relative to treaties, ; on the execution of the british treaty, ; on the military and naval appropriations, . niles, nathaniel, representative from vermont, , , ; on the electoral college, ; on the flag of the union, . _non-intercourse_ with great britain, _see great britain_. _north carolina_, vote for president in , . o _oaths_, a bill to regulate the time and manner of administering certain, reported, ; administered to vice president and each senator, ; to secretary of senate, ; leave to bring in a bill, in the house--form of, for the members of the house, ; of president--proceedings of the house after its administration, . amendments of the senate to the bill regulating the time and manner of taking oaths, ; whence is derived the power to oblige members of state legislatures to take this oath? ; no doubt respecting the powers of congress on the subject, ; if left to state legislatures, different laws might be passed, and different degrees of obligation required, ; the power appears to be generally conceded; the principle of policy should be examined, ; not a suitable time; it argues a jealousy in the national government, ; the states should comply with an act of congress, ; congress has not the power to carry it into effect, ; congress has such power, ; the policy depends on a variety of circumstances, ; it may be considered an interference with the state governments, ; no reason offered by the senate for concurrence, ; a general provision better than particular ones, ; no other legislature capable to make one, ; it is the duty of the house to detail the general principles laid down by the constitution, and reduce them to practice, . o'brien, richard, petition of, . _officers_, removal of, ; debate on the power of the president, . _see executive departments._ orr, alexander d., representative from kentucky, , . otis, samuel alyne, elected secretary of the senate, . p page, john, representative from virginia, , , , , , , ; presides in committee of whole, , , , , , , , ; on application to amend the constitution, ; on tonnage duties--experience of virginia, ; presides in committee of the whole, , , ; opposed to all titles for the president, , ; on the admission of rhode island, ; remarks on the treasury department, ; further remarks, ; on the compensation of president, &c., ; further remarks, ; do. on vice president, ; on amount of compensation of members, , ; on the right of instruction, ; do. further, ; on the admission of reporters for the press, ; on making easy terms of naturalization, , ; on the public debt, ; urges commitment of pennsylvania memorial, ; on discrimination among the public creditors, ; do. further remarks, ; on a seat of government, ; speech on ratio of representation, ; a bill for the encouragement of the cod fisheries, ; on the head to be stamped on american coins, , ; on discharging committee in case of st. clair, ; on reference to the committee of the whole of the resolutions relative to the official conduct of the secretary of the treasury, ; on the exclusion of titled foreigners from citizenship, ; on reference of letter of secretary of war, ; on the reduction of salaries, ; on the support of existing establishments, ; on the pay of the speaker, ; on the rights of the house relative to treaties, ; on the execution of the british treaty, . paine, elijah, senator from vermont, . paine, wingate, representative from new hampshire, , . _paris._--letter of president of commonalty on death of dr. franklin, . parker, jonathan, representative from virginia, , , , ; appointed by house to make list of votes for president when counted in the senate, ; appointed on committee of supplies, ; appointed of committee of conference on subject of title of president--because it is all repugnant to republicanism, ; moves a duty on importation of african slaves, , ; withdraws motion for duty on african slaves, ; appointed on committee to draft a bill relative to the importation of african slaves, ; on duties on distilled spirits, ; further remarks, . parker, josiah, representative from virginia, , , ; on the reduction of the army, ; further remarks, ; on the commerce of the united states, ; against the embargo laws, ; on the president's speech, ; on resolutions of thanks to general wayne, ; on indian trading houses, ; on the address to the president, , ; on establishing indian trading houses, , . partridge, george, representative from massachusetts, , , ; on duty on molasses, ; on duty on hemp, , . paterson, william, senator from new jersey, , ; appointed on judiciary committee, first congress, ; on committee to prepare answer to washington's inaugural, ; resigns his seat in senate, . patton, john, representative from delaware, , . _pennsylvania._--vote for president, , . _pennsylvania insurgents._--the recommendation of compensation to the sufferers by the pennsylvania insurgents considered, ; proposed to confine it to officers of the government, ; sound policy required indemnification of the sufferers, ; the whole affair but a trifle, not twenty thousand dollars, ; there should be no discrimination, ; it should be confined to persons who had suffered in defence of government, ; a private person more entitled to indemnification than revenue officers who are paid for their services, ; let the sufferers have recourse to the laws, ; government equally bound to make compensation to those who suffered by british soldiers, ; amendment rejected, ; on the bill before the house, immediate indemnity, objected to, ; if you pay the claims you cut off civil process, ; it becomes a precedent, ; the measure will encourage a spirit to suppress insurrections, and it may encourage insurrections, ; resolution is unsound policy, ; the subject should be postponed to another session, ; no civil process will lie in the case, ; the amendment to confine the damages to citizens personally aiding or assisting the officers, considered, ; it becomes the honor and justice of the legislature to indemnify them, ; the point of law considered relative to civil actions, ; the british had practised indemnification to the royalists, ; previous question carried, ; other amendments added, . person, thomas, petition of, _see indian lands_ within states, &c. _petition_, of catharine greene, ; of william dunbar, in behalf of the heir of george galphin, ; of richard o'brien, ; of warner mifflin, on subject of negro slavery, ; to make hudson, n. y., port of entry, ; of conrad laub, respecting the seat of albert gallatin in the senate, ; from the quakers of rhode island, relative to the slave trade, . _philadelphia._--letter from commissioners offering congress the court house, . pickens, andrew, representative from south carolina, , . pinkney, william, resignation of, . _post office._--bill to establish post offices and post roads, ; moved to empower postmasters general to establish certain roads under the direction of the president, ; reasons for opposing a concurrence in this amendment, ; reasons in favor of the amendment, . _franking privilege_ under consideration, ; it is presumed no gentleman will ask a member to frank for him, ; if abuses arise, legislature can correct them, ; to take away privilege of franking would level a deadly stroke at the freedom of the press, ; dangerous to take any measures that may stop the channels of public information, ; franking granted, not as a personal benefit, but for the good of the constituents, ; means of bringing much information to the house, ; some restrictions can be put on it, ; equally as objectionable in the hands of the president, ; so long as it is advantageous to citizens it should not be relinquished, ; motion to withdraw the privilege from members of both houses, ; the security of the people is that their representatives are subject to the same regulations as themselves, ; congress enjoys only such rights as are mentioned in the charter, ; people view this privilege with a jealous eye, ; example of great britain shows to what an enormous height the abuse can be carried, ; the privilege is unequal in its operation, ; the diminution of revenue not a sufficient reason for abolishing the privilege, ; revenue a secondary consideration, ; if this privilege be taken away, the avenues of information cut off, ; various other considerations in favor of retaining the privilege considered, ; bill passed, . _post roads_ from maine to georgia, resolution relative to a survey of, &c., considered, ; the business of the general government to undertake the improvement of roads, ; present roads greatly improved by adopting the resolution, ; not right to apply revenues of post office to this object, ; resolution offered by mr. madison, . potts, richard, senator from maryland, , , , . _presidency, vacancy in._--bill declaring what officer, in case of vacancy in the offices of president and vice president, shall act as president, ; it must be an officer of the united states by the constitution, ; shall he hold for the remainder of the term, or only until a new election? ; secretary of state, ; president of the senate, _pro tem._, moved, ; this last motion repugnant to the constitution, ; the matter is left with the legislature, ; chief justice a suitable officer, ; objections to different officers, ; delay urged, ; unnecessary, ; considerations respecting various officers, ; the contingency might not happen more than once in eight hundred years, ; further objections to secretary of state, ; motion to strike out clause providing the president of the senate, _pro tem._, or the speaker of the house shall act as president, in case of a vacancy, ; subject of not immediate importance, ; objected to as not connected with other parts of the bill, ; necessary the business should be decided, ; bill unconstitutional--neither the president, _pro tem._, nor speaker, nor officers of the government in the sense contemplated, ; speaker no more an officer of the government than any member of the house, ; unconstitutionality further considered, . _president_, vote for, in , ; in , ; compensation of, , ; message on disputes between some of the states and the indian tribes, ; on the rejection by the senate of the nomination of benjamin fishbourn, ; meets the senate in consultation, ; _note_, ; message to senate on hostilities of wabash indians, ; on ratification of treaties with indian tribes, ; message communicating the death of the dauphin of france to the senate, ; on adjournment of congress, ; his reply to the address of the house, ; his power to remove officers, ; declared by vote, ; compensation of, ; debate on, ; salary fixed, ; message to house, ; his reply to address of the senate, ; his term of office, when commenced, ; his message to the senate on the accession of rhode island to the union, ; on conferring a brevet commission on a french officer, ; message from, to the senate, ; _note_, ; question of consultation addressed to the senate, ; message to senate on treaty with indian tribes, ; his reply to address of the house, ; message to senate on surrender of western posts by the british, ; reply to answer of the senate, ; reply to address of house, ; reply to senate's address, ; inaugural address at second election, ; counting votes for, ; answer to address of the senate, ; reply to address of the house, ; reply to senate's address, ; reply to house address, ; message to senate with colors of french republic, ; answer to address of the house, ; reply to address of the house, ; message to the house with the french flag, ; answer to french minister on presentation of french flag, ; message relative to intruders on cherokee lands, . preston, francis, representative from virginia, , , ; on the execution of the british treaty, . _protection_ of american commerce, _see commerce_; do. of frontiers, _see frontiers_. _protective duties_, how far sustained by the debate on the impost bill, _note_, . _protest_, or dissent of any senator--motion to grant right to enter on the journal of the senate--negatived, . provost, samuel, elected chaplain of the senate, . _public lands_, debate on resolutions respecting the disposal of the land in the western territory, ; speedy measures necessary to be taken, ; a land office should be opened to sell the land in small quantities, ; great numbers of people are on the ground waiting to purchase, ; they will move to spanish territory, or take possession of ours without leave, ; other reasons showing the necessity of doing something, ; this business should not be precipitated, ; some early measures necessary, . resolution to establish a land office and fix terms of granting vacant lands in the west, considered, ; character of the emigration, ; adhesion to the union, ; organization of a land office, ; its system of business, ; resolution adopted, ; on a resolution to establish a land office at the seat of government, &c., ; details of the business, ; better to settle general principles, ; perfect liberty in selection by purchasers most for the interest of the government, ; reasons against indiscriminate location, ; bad effects of, ; manner of laying out land by late congress, ; moved that the price thirty cents per acre be struck out, ; various prices proposed, ; motion lost, ; moved--the price be not less than thirty cents per acre, ; the policy of the government is to fix a price so reasonable that any can pay, ; relative value of lands in several states, ; no discretion for determining the price should be left to any one, ; considerations for and against fixing a price, ; practice of some states, . q _question_, the previous--_note_, ; ordered, . _quorum_, at first session of senate when formed, . r ramsey, david, petition to the house on eligibility of wm. smith, . randall, robert, charged with an attempt at bribery, ; arrest of, ; trial before the house, . read, george, senator from delaware, , , , ; resigns his seat in the senate, . read, jacob, senator from south carolina, ; on answer to president's speech, . read, john, representative from massachusetts, ; on the rights of the house relative to treaties, . _reception of president_, senate committee on, ; of president, report of senate committee thereon, ; of committee on conducting the same, ; report of house committee on, ; report of committee appointed for that purpose, . _reduction of salaries_ of executive officers, clerks, &c., and senators and representatives, &c., motion for a committee to bring in a bill, ; a subject of grievous complaint among citizens, ; salaries exorbitant, ; other circumstances considered, ; experience of members of the house, ; the motion unnecessary, ; the question arises from misapprehension, ; the pay of members considered, ; of speakers, ; of senators, ; difference between pay of senators and representatives, , _note_, ; present pay small enough, ; motion negatived, . _report_ of house committee on messages, &c., between the two houses, ; of house committee of elections on proceedings relative to the petition of david ramsey, ; of house committee on title of president, ; of committee on unfinished business of last session, ; of special committee on quaker memorial, ; of committee of the whole house on quaker memorial, ; _note_, ; on memorial of the officers of the navy, ; on mode of examining votes for president, ; on admission of the delegate south of the ohio, ; on proceedings in the randall bribery case, . _reporters_, their admission to the house, ; blunders of, . _representation, ratio of_, moved there be one representative for every thirty thousand inhabitants, and motion to strike out "thirty," considered, ; sense of the states considered, ; one to thirty thousand will not give more than an adequate number, ; objection on account of expense, considered, ; citizens of united states expect this ratio, ; thirty should be struck out, ; difficult to do business if representation too numerous, ; people will be satisfied if ratio is higher, ; it will increase expense and the number of public officers, ; two points to be considered, viz., what is the proper number to constitute a representative body for the united states, and what ratio will leave the fewest fractions in the states, ; thirty-five thousand leave fewest fractions, ; an adequate number was the great object, ; future sessions will be shorter, ; existence of the union may depend on fulness of representation, ; doubtful if a large representation was less liable to corruption than a small one, ; philosophical examination of the principle of representation, ; the opinion advanced for reducing the representative branch is a dangerous error, ; situation of the country calls for great extension of the principle of representation, ; other points considered, ; the will of the people should be regarded, ; expenses, delays, and other objections considered, ; is not congress precluded from exercising any discretion in the matter by the constitution? ; is it expedient to do it? ; objects of state and congressional assemblies, ; leave the restriction of the number of members to the people, or to some future congress, ; congress being the creature of the people should not lessen the importance of the people or exclude them from a full share in their own government, ; one man cannot know the wishes of thirty-five thousand, therefore the people should not be desired to accede to that ratio, ; it is said the president secured the present ratio to the people, and shall we be less solicitous than the president? ; no danger of disorders from a large number, ; if more wisdom is brought into the house by a larger number, is not also more folly, ; the senate, a smaller body, is as competent as the house, ; if we go on theory the representation should be enlarged, ; no propriety in comparing the government to that of great britain, ; no danger of corruption from a large number, ; the constitution secures independence of legislature, ; a numerous representation tends to weaken, if not destroy, the government, ; the proposed amendment to the constitution should be a guide to the house, ; instability of state governments arises from mode of election, ; other objections considered, ; on the resolution that the representation be one to thirty thousand, adopted, . _apportionment bill_, considered, ; the people expect one representative for thirty thousand inhabitants, according to the constitution, ; grounds of this expectation, ; the inequality of representation suggested to result from this ratio is more apparent than real, ; objection that the relative influence of the states should not be resorted to in the apportionment of representatives, considered, ; the inconveniences of the rule in their greatest extent can never be very great, ; the increasing representation considered, with a view to the necessity of establishing in this branch a permanent sympathy with the landed interest, ; organization of a moneyed interest, ; apprehensions from the principles beginning to be developed, ; thirty-three adopted, . _resignation, does it cause a vacancy?_--wm. pinkney resigned as representative from maryland without taking the oath or his seat, john f. mercer was appointed by the governor and council to fill the vacancy under the laws of maryland, report on considered, ; under the constitution a resignation does not cause a vacancy, ; in the british house of commons there can be no resignation, ; under the constitution executives of states are not judges of a vacancy, ; great inconvenience would result from a rejection of the report, ; no analogy between parliament of great britain and this house, ; no part of the constitution prohibits a member from resigning, ; it is uncertain how the practice of the british parliament originated, ; vacancies can happen from various causes, ; difference between a resignation before and after taking a seat, ; great inconvenience of contrary course, ; the constitution contemplates resignations, ; nothing to show resignations may not take place in one house as well as in the other, ; report accepted, . _resolution_ on the consideration of all bills on a second reading in the senate, ; on contested election of wm. smith, ; on executive departments, ; relative to western lands, ; _note_, ; adopted, ; relative to the admission of rhode island, ; relating to western lands, ; adopted, ; on the establishment of a land office, ; for a home department, ; of thanks to the speaker at close first congress, ; on adjournment, ; on location of seat of government, ; on a central location, ; for the appointment of commissioners to fix seat of government on susquehanna, &c., , , ; for commissioners to fix site for a seat of government, ; proviso offered to, ; rejection of, ; adoption of resolution, ; on unfinished business of last session, ; on non-intercourse with rhode island, ; adopted, ; of senate to attend the funeral of thomas bland, ; _note_ on, ; of senate on secret article of treaty with the creek nation, ; of senate relative to a treaty with the cherokee indians, ; of thanks to the corporation of new york city, ; of adjournment, ; of house on chaplain, ; relative to an answer to the president's speech, ; on public credit, ; relative to eulogium on dr. franklin, ; on jails of the states, ; of the senate, relative to open doors, ; on the ratio of representation, ; to refer petition of catharine greene to select committee, ; on the petition of catharine greene, ; lost, ; on the courtesies of france, ; on the petition of catharine greene, ; of senate respecting open doors, ; on the official conduct of the secretary of the treasury, ; of thanks to speaker dayton, ; of senate relative to amendments of the constitution, ; of senate relative to open doors, ; relative to british debts, ; of non-intercourse with great britain, ; on indemnity for spoliation, ; of amendments to the constitution ; on deported slaves of the revolution, ; amendment, ; _note_, ; of thanks to gen. wayne and others, , ; of thanks to the militia of new jersey, pennsylvania, maryland, and virginia, ; respecting losses by pennsylvania insurgents, ; on excluding titled foreigners from citizenship, ; on the right to indian lands within a state, ; relative to the case of thomas person and others, ; relative to the heirs of count de grasse, ; relative to intruders on indian lands, ; relative to indian lands in georgia, ; relative to open doors in the senate, ; _note_, ; in senate on presentation of french flag, ; relative to attempt at bribery, ; on post roads, ; on the treaty with great britain, , ; relative to the refusal of the president to furnish papers relative to the treaty with great britain, ; _note_, ; on the sense of the house relative to the british treaty, . _rhode island, admission of._--resolution desiring rhode island to take the necessary steps for admission into the union, ; propriety of interfering in the matter doubtful, ; why interfere in the concerns of sister states who have not joined the confederacy, ; course of rhode island, ; not proper for this house to expose themselves to have the invitation rejected, ; previous question moved for the first time, ; reasons therefor, ; decided in the negative, ; letter from governor of, to the president, ; proposal of non-intercourse with, ; considered in the senate, ; adopted, ; vote for president in , . robinson, moses, senator from vermont, , , , . ross, james, senator from pennsylvania, , . _rules._--senate, committee on, in case of conference, ; for conducting business, senate committee on, first congress, ; of the senate for open doors, . _rum._--the word changed to distilled spirits, ; duty on, . rutherford, john, senator from new jersey, , , , , . rutherford, robert, representative from virginia, , , ; objects to the duty on salt, ; on the president's speech, ; on the reduction of salaries, ; on the admission of tennessee, . rutledge, john, votes for, as vice president in , . s _salt_, debate on duty on, ; duty fixed, . _salted provisions_, drawback on, fixed, . schureman, james, representative from new jersey, , , ; opposes the motion to lay duty on african slaves as improper at that time, . schuyler, philip, senator from new york, ; draws lots with rufus king for length of term, , , . scott, major general, resolution of thanks to, by the house, . scott, thomas, representative from pennsylvania, , , , ; remarks on the principle of discrimination in laying duties, ; favors duty on hemp, ; opposes duty on salt, ; on western lands, ; on do., encouragement to emigration, ; plan of land-office, ; on selecting a seat of government, ; on a distinction between foreign and domestic creditors, ; further remarks, ; do. on the discrimination and liquidation of the public debt, ; on constitutionality and propriety of pennsylvania memorial for the abolition of slavery, ; on a seat of government, ; on establishment of a land office, ; further remarks, ; moves to strike out thirty cents as the price of land, ; on the pay of soldiers, ; further remarks, ; on the relief of the french emigrants, ; on exclusion of titled foreigners from citizenship, ; on the right to indian lands within a state, ; on intruders on indian lands, . _seat of government._--motion to fix a permanent residence for the general government of the united states, ; a spot on the banks of the susquehanna regarded as most central, although south of the centre of population, ; resolution to locate on east bank of susquehanna offered, ; a great national question, ; a preamble of general principles moved, ; spot on the delaware proposed, do. on the potomac, ; preamble regarded as unnecessary, , ; voted in the negative, ; neither centre of wealth, or population, or locality, should decide, as the future may make great changes, ; the several places should be considered on their merits, ; original motion under consideration, ; advantages of the banks of the susquehanna, ; the whole thing arranged out doors, let its consistency with general principles be shown, ; answer, ; if eastern members have settled the question let them settle the principles of the government, ; the territorial centrality on the susquehanna denied, ; the place proposed comes within the general principles agreed on, ; cannot men consult together who have a common interest, ; the susquehanna south-west of the centre of wealth, &c., ; the potomac regarded as unhealthy, ; banks of the potomac the best place, ; advantages of harrisburg, ; advantages of the potomac, ; advantages of the hudson, ; various considerations on the subject, ; motion to insert harrisburg, lost, ; motion to strike out "east bank of the susquehanna," and insert potomac, ; remarks thereon, ; motion for committee to rise, ; attempts to precipitate a decision, ; a league between the northern states and pennsylvania against the south, ; opposition in new england to the potomac, ; this business should be decided under an equal attention to the rights of the community, ; effects of an uncentral location, ; seat should be the centre of the union, ; potomac the centre, ; facts respecting the susquehanna, ; objections to the potomac considered, ; arguments in favor of the susquehanna, ; motion to strike out susquehanna and insert potomac, lost, ; motion to insert "or potomac" after susquehanna, lost, ; resolution for appointment of commissioners to examine, report to the president, and purchase on east bank of susquehanna, &c., offered, ; the site should be ceded, ; the jurisdiction be exclusive, ; several states offered a cession, ; the reproach of bargaining, ; do. repelled, ; opposition of southern members made to prevent an improper decision, ; motion to insert "north bank of potomac" for east bank of susquehanna, lost, ; do. to insert wilmington, &c., lost, ; do. to insert potomac, susquehanna, or delaware, lost, ; do. to insert "either side of the delaware," &c., lost, ; do. to insert "banks" for east bank, carried, ; do. to insert "or maryland " after pennsylvania, lost, ; do. to insert "wilmington" for city of new york, lost, ; do. to insert "philadelphia" for new york, lost, ; bill to establish a seat of government, considered, ; moved to confine the choice between the mouth of checkiselungo creek and the mouth of the susquehanna, ; moved to strike out all that part of the bill making new york the temporary seat of government, as unconstitutional, ; bill passed, ; do. passed by the senate, with amendments, and returned to the house, ; motion to postpone its consideration, ; house should not be influenced by the senate keeping the appropriation bill as a hostage, ; insinuation wrongful, ; amendment of senate changes the tenor of the bill, ; germantown most proper spot, ; arguments for postponement, ; motion lost, ; motion to concur with senate, ; advantages of germantown, ; a costly location, ; a departure from every principle adopted by the house, ; an amendment moved and carried, ; on committee of the whole on a bill from the senate fixing the temporary and permanent seat of government, debated, ; moved to strike out "potomac" and insert "a district to include the town of baltimore," ; centrality is not an idea which predominates in regard to any other country, ; if the clause is struck out the bill will be lost, ; consideration of the relative interests of the southern, middle, and northern states, ; a central position necessary, ; the merits of the question, ; map of the potomac, ; reasons in favor of baltimore, ; objections to the place proposed, ; philadelphia will become the permanent residence, ; no necessity for moving temporary residence, ; potomac a national location, ; only three states can claim it, ; advantages of the potomac, ; advantages and disadvantages of the two places compared, ; centrality of the potomac, ; not the time to fix the seat of government, ; objections considered, ; new york a temporary seat, ; history of the quakers, ; conduct of new york during the war, ; conduct of her senators on this question, ; baltimore the place on the map, ; character of new york, ; advantages of baltimore, ; principles of the bill, ; no state has a right to the seat of government, ; report of a committee of the late congress, ; baltimore or the potomac too far south, ; baltimore nearest the centre, ; after present ferment has subsided, potomac will be considered the bond of the union, ; improvements on the potomac, ; difficulty of ever removing from philadelphia if made temporary residence, ; proceedings at last session, ; motion lost, ; moved to strike out potomac and insert delaware, ; motion lost, ; do. to strike out potomac and insert germantown, ; do. lost, ; do. to strike out potomac and insert baltimore, ; do. lost, ; do. to adjourn, lost, ; bill passed, ; _note_, . _secretaries_, resolution requiring attendance on the house, . _secretary_, of the senate, elected by ballot, st congress, . _secretary of the treasury_, debate on his duties, ; on communicating information to the house, ; report of, ; manner of making it, . _see treasury._ _secretary of war_, letter from, . _see st. clair._ sedgwick, theodore, representative from massachusetts, , , , , ; on removal of officers, ; on the compensation of the president, ; further remarks on pay of vice president, , ; motion on the pay of members of congress, ; favors discrimination in the pay of members of the two houses, ; opposes a home department, ; on amount of pay of members, ; farther remarks, , ; on the manner of giving instructions to representatives, ; on the location of a seat of government, ; further remarks, ; on the report of the secretary of the treasury, ; opposed to indiscriminate admission of foreigners, ; on the importance of prompt action relative to the public debt, ; on the immediate second reading of the quaker memorial, ; on discrimination of public creditors, ; on memorial of officers of navy, ; on price of public lands, ; further remarks, ; on vacancy in the presidency, ; on excise bill, ; on officers, ; speech on the bank of the united states, ; on resignation of william pinkney, ; on the electoral college, ; on vacancy in the office of president, ; on official conduct of secretary of treasury, , ; on non-intercourse with great britain, ; on merits of indemnity resolution, and on reference, ; on the president's speech, , ; on indemnification sufferers by pennsylvania insurgents, , ; on amending naturalization laws, , , ; on intruders on indian lands, ; on the answer to the president's speech, ; on the support of existing establishments, ; on a stenographer for the house, ; on a salary for members of congress, ; on rights of the house relative to treaties, ; on the admission of tennessee, . seeny, joshua, representative from maryland, , , , ; appointed on committee to draft bill on tonnage duties, ; urges decision relative to duty on molasses, ; presents the offer of ten miles square by maryland for a seat of government of united states, ; on the compensation of vice president, ; opposes discrimination in the pay of members of the two houses, ; approves of the susquehanna region for a seat of government, ; on constitutionality of memorial for the abolition of slavery, ; on discrimination among the public creditors, ; on memorial of officers of navy, ; on a seat of government, ; on answer to president's message, ; on the election of mercer, ; further remarks, . _senate_, members present at first meeting, ; adjournment from day to day for want of a quorum, ; session with closed doors until , _note_, ; no publication of debates of, _note_, ; receives the house on the inauguration of washington, ; resolution of respecting titles of president and vice president, ; do. division in three classes, ; first executive session, ; confirmed the appointment of collectors, naval officers, and surveyors, ; mode of communication with the president, ; report on, ; do. resolution on, ; president consults with, _note_, ; wait upon the president and deliver their answer to the inaugural address, ; on ratification of treaties with indian tribes, &c., report of committee on, ; conference with the house on the impost bill, ; results of, ; and house meet together to receive president's message, ; address of to the president, ; manner of presentation, ; when the term of office of members commenced, ; answer to the president's address, ; notice of letter of french king, ; answer to president's message, ; resolutions respecting public proceedings, ; special session of, ; answer to president's address, ; answer to the president's message, ; answer to president's message, ; executive journal of, ; answer to president's address to st session, th congress, . _sequestration of british debts._--_see great britain._ sevier, john, representative from north carolina, . sherburne, john s., representative from new hampshire, , , ; on a stenographer to the house, . sherburne, upton, representative from maryland, . sherman, roger, representative from connecticut, , , ; views on the proposition to lay duties on madeira wine, ; on oaths of state officers, ; on necessity of impost duties, , ; on committee of conference respecting title of president, ; opposed to embracing african slaves in a bill for duties on goods, &c., ; further remarks, ; on limiting the period of the impost bill, ; further remarks, ; on naturalization of pauper emigrants, ; on admission of rhode island, ; on the removal of officers by a general law, ; on compensation of vice president, ; offers a resolution respecting the form of amendment of the constitution, ; remarks, , ; do. _note_, ; on the amendment to the constitution relative to the freedom of conscience, ; on the right of instruction, ; on the place for a seat of government, , ; on report of secretary of the treasury, ; on committee on pennsylvania memorial, ; on memorial of officers of the navy, ; further remarks, ; on a seat of government, ; further remarks, ; on answer to president's message, ; on vacancy in the presidency, , ; on excise bill, ; further remarks, , ; on the commitment of the bill for a bank of the united states, ; senator from connecticut, , . short, william, proposed to the senate as minister to france, ; his fitness considered, ; appointment to charge during the absence of the minister, confirmed, . sinnickson, thomas, representative from new jersey, , , ; on duty on beer, ; opposes a limit to the impost bill, ; further remarks, ; appointed on a committee to draft a bill relative to the importation of african slaves, . sitgreaves, samuel, representative from pennsylvania, ; on the admission of tennessee, . _slavery and slave trade._--address of the annual assembly of friends in philadelphia, and one of the society of friends in new york, against the continuance of the slave trade, considered, ; motion to refer to a committee, ; contrary to usual proceeding to commit to-day, ; why is its second reading pressed to-day? ; reference urged, ; no apprehension from commitment at once--constitution secures the rights, ; any measures indicative of an intention to interfere may sink the value of this kind of property, ; men have come here to meddle in a business with which they have nothing to do, ; the memorialists are influenced by motives of benignity, ; if the importation was crushed, the value of the slave would be increased instead of diminished, ; if it was abolished through interference of general government, it would evince a disposition to total emancipation, and the property be in jeopardy, ; is the whole morality of the united states confined to quakers? ; the petition desires an unconstitutional act, ; no foundation for apprehension, ; it is proper to commit the petition, ; no importance to the question unless members made it so, ; the memorialists should be dismissed, ; petition laid over, ; memorial of pennsylvania society for abolition of slavery, ; memorial of friends in philadelphia read second time, ; petition of friends contains unconstitutional requests, ; any thing unconstitutional denied, ; it prayed for an unconstitutional measure, and its commitment would sound alarm, ; strictly constitutional, ; no difficulty in committing the memorial--committee would understand their business, ; language of the constitution on the importation of slaves, ; it prays for the abolition of slavery, ; the present is not a time to consider the subject, ; the present a proper time to determine the constitutional limits, ; no power in the house to grant the prayer, and therefore unnecessary to commit, ; jealousy of southern states, ; the states would never have entered the confederacy if their property had not been guaranteed to them, ; the memorialists do not ask total abolition of the slave trade, but that congress will consider if they can exercise justice and mercy, ; no tendency in the commitment to break in on the constitution--the object is worthy of consideration, ; the interference of congress compatible with the constitution, ; nothing in the petition like what was complained of, ; the petitioners pray congress to take measures for abolition of slave trade, ; commitment carried, ; debate on the report upon the memorial of the people called quakers, ; moved to strike out the first paragraph, ; contents of report, ; total prohibition not produce difficulties, ; particulars which took place in the course of the investigation of the business, ; pernicious consequences likely to flow from interference of congress, ; humane treatment of the slaves, ; quakers enemies of freedom, ; warm altercation, ; injustice of the measure of interference, ; powers of congress respecting slavery and slave trade, ; an indecent attack on the character of certain states, ; interference contrary to quaker principles, ; where does the power of manumission reside? ; plans of the friends of emancipation, ; negroes are inferior race, ; slavery is no new thing, ; does slavery weaken the southern states? ; is public opinion against slavery? ; this squeamishness is very extraordinary, ; consequences of emancipation, ; if importation prohibited, will that species become extinct? ; will the abolition strengthen south carolina? ; does toleration of slavery bring reproach on america? ; does slavery vitiate and debase the mind of the owner? ; was south carolina wanting in patriotism? ; the cruel mode of transportation, ; the clause in the constitution was designed to apply expressly to negro slaves, ; now is the time to declare the sense of congress, ; irregularities of the course of the debate, ; paley on slavery, ; the genius of the government in relation to slavery and slave trade, ; characters of the signers of the memorials, ; character of franklin, ; moved to take up report of committee of the whole, ; every principle of policy and concern for the dignity of the house and peace of the country requires it to be dropped, ; reasons for taking it up, ; ordered that report and memorials be inserted in the journal, ; _note_, . _see duties_ on imports, . _abolition petitions._--petition of warner mifflin on negro slavery considered, ; after what has passed, the subject is started again, ; if a stop is not put to such proceedings, the southern states would be compelled to apply to the general government for their interference, ; moved that the paper be returned to the clerk, &c., ; on the general principle every citizen has a right to petition the legislature, ; the subject is not properly before the house, ; every citizen has a right to petition for a redress of grievances, but the present paper is mere rant, and concludes with no specific prayer, ; if favorably received, it would occasion alarm in the southern states, ; motion agreed to, . _to prohibit carrying_ on the slave trade, bill considered, ; amendments proposed, ; ordered to be engrossed, . _to require foreigners_ to renounce their slaves before admission to citizenship--motion, ; debate thereon, ; motion withdrawn, ; do. renewed, ; do. vote on, . _slaves, african._--duty on importation, proposed, ; debated, ; deported, of the revolution, ; importation of, _see duties_ on imports. smilie, john, representative from pennsylvania, , ; on the pay of soldiers, ; on the relief of the french emigrants, ; on the preparations for the algerine war, ; against increase of the army, ; on reference of letter of secretary of war, . smith, isaac, representative from new jersey, ; on the rights of the house relative to treaties, . smith, israel, representative from vermont, , , , , . smith, jeremiah, representative from new hampshire, , , , , ; on election of president, . smith, nathaniel, representative from connecticut, . smith, samuel, representative from maryland, , , ; on the reception of the french emigrants from st. domingo, ; do. on the relief of do., ; on the commerce of the united states, ; on the algerine war, ; on the sequestration of british debts, ; on the renunciation of nobility for citizenship, ; on establishing indian trading houses, ; on the execution of the british treaty, ; on the army establishment, . smith, william, representative from maryland, , , ; opposes high duties, ; appointed on committee of supplies, ; opposes law of tonnage duties, ; on the site for the seat of government, . smith, william, representative from south carolina, , , , , , , , ; his eligibility, ; opposes duty on salt, as it will lead to dissatisfaction, ; opposes present consideration of duty on african slaves, ; favors limiting the period of impost bill, ; on power of president to remove secretary of state, ; remarks on diseligibility, ; on the president's power of removal, ; on the compensation of vice president, ; on the mode of amending the constitution, ; further remarks, ; on the obligation of instructions, ; on the constitutional requirement for a seat of government, ; reports an answer to the president's speech, ; on the propriety of restraints to naturalization, ; further remarks, ; offers resolutions on public credit, ; benefits of a funded debt, ; fund or pay, ; opposes reception of the quaker memorial, ; unnecessary to commit pennsylvania memorial, ; further remarks, , ; discrimination of public creditors, ; on answer to president's message, ; further remarks, , ; on a seat of government, ; offers resolution relative to eulogium of dr. franklin, ; on vacancy in the presidency, , ; on the commitment of the bill for a bank of the united states, ; speech on the bank, ; further, ; is a resignation a constitutional vacancy? ; on emblems on american coins, ; on discharging the committee on defeat of st. clair, ; on reduction of the army, ; reports a bill to regulate the claims of invalid pensions, ; reports mode of examining votes for president, &c., ; on reference to committee of the whole the resolutions relative to the official conduct of the secretary of the treasury, ; on official conduct of the secretary of the treasury, ; on the result of the votes on, ; on the commerce of the united states, ; on the propriety of sequestering the british debts, ; in favor of continuing the embargo, , ; urges duties on manufactured tobacco and refined sugar, , ; on the delegate south of the ohio, ; on the president's speech, ; on thanks to general wayne, , ; on damages by pennsylvania insurgents, ; on the renunciation of titles for citizenship, , ; on reference of the letter of the secretary of war, ; on the reduction of salaries, ; on the right to indian lands within a state, ; on the attempt at bribery by robert randall, ; on the randall bribery case, ; on the resolution relative to bribery, ; on the support of existing establishments, ; on call for papers relative to british treaty, ; on the rights of the house relative to treaties, ; on the admission of tennessee, ; on the military and naval appropriation, , , . _snuff_, duty fixed, . _spirits_, all other, duty on, . sprigg, thomas, representative from maryland, , . _south carolina_, vote for president, , . stanton, joseph, jr., senator from rhode island, , , . _state department_, bill to establish, considered, ; secretary of, called before the senate to give explanations, ; practice now superseded, _note_, . _see_ _executive department_. _state, secretary of_, mode of appointment, ; how removed, debate on, . st. clair, general, defeat of, considered, ; resolution requiring the attendance of the secretary of the treasury and the secretary of war in the house, to furnish information needed for an investigation of the causes of st. clair's defeat, ; moved to strike out so much as requires the attendance of the secretaries, ; resolution improper--the secretaries are not impeached, ; importance of the information they can give, ; the information had better be in writing, ; the measure would introduce a bad precedent, ; a thorough investigation, highly important, ; this mode the best possible, ; not necessary in the present state of the business, ; the information must be had, ; no advantage to arise from adopting the resolution, ; now is not the proper time to call for information, ; remarks on the report, ; importance of the investigation, a million dollars involved, ; peculiar position of the secretaries, ; both implicated in the failure of the expedition, ; resolution lost, ; motion to discharge the committee of the whole, ; the only proper course is to consider the report, ; report perfectly satisfactory, ; what is the situation of those implicated in the failure? ; no disposition to smother inquiry, ; the house can get through the subject in a shorter time than a committee, ; shall the house or a select committee establish the facts, ; effects of finding some of the officers culpable by either, ; uniform practice of the house to recommit, ; secretaries attended only once on the committee, and were anxious to leave, ; in the case of the contested election the house reserved the right of establishing the facts, ; other points considered, ; recommitment agreed to, . _steel, unwrought_, duty on, proposed, ; adopted, . steele, john, representative from north carolina, , ; on ratio of representation, ; on discharging committee in case of st. clair, ; on petition of warner mifflin on negro slavery, ; on the reduction of the army, ; further remarks, , , . sterrett, samuel, representative from maryland, , . _stenographer to the house_, debate on, ; object to find a person who would satisfy the house and the public, ; other considerations urged, , . stone, michael jenifer, representative from maryland, , ; on the compensation of the president, ; further remarks on amount, ; do. vice president, ; opposes discrimination in the pay of members of the two houses, ; on the mode of amending the constitution, ; further remarks, ; opposes the amendment of constitution relative to the right of instruction, ; on the location of a seat of government, ; do. on harrisburg as a seat, ; further remarks, ; on the powers of congress and rights of the states respecting naturalized citizens, ; thinks interference with the importation of african slaves will tend to depreciate their value, ; on discrimination among the public creditors, ; on memorial of officers of navy, ; on a seat of government, ; on price of public lands, ; further remarks, ; on excise bill, ; further remarks, , ; speech on the bank of the united states, . _st. paul's chapel_, service at, upon the inauguration of washington, . strong, caleb, senator from massachusetts, , , , , , , ; on committee on rules of first congress, ; on manner of electing chaplains, ; on rules of business, ; appointed on judiciary committee, first congress, ; on committee to wait on vice president, ; on the resolution relative to the presentation of the french flag, . sturges, jonathan, representative from connecticut, , , , , . _sugars_, duty on, . sumter, thomas, representative from north carolina, , , ; on the location of a seat of government, ; opposition to bill organizing state department, ; on the petition of catharine greene, , . swanwick, john, representative from pennsylvania, ; on establishing indian trading houses, , ; on a stenographer for the house, , ; on rights of the house relative to treaties, ; on the execution of the british treaty, ; on the sense of the house relative to the british treaty, . swift, zephaniah, representative from connecticut, , , ; on conducting the algerine war, ; on the legality of sequestering the british debts, ; on the constitutionality of admitting a territorial delegate, , ; on indemnification to sufferers by pennsylvania insurgents, , , ; on establishing indian trading houses, ; on the pay of the speaker, , ; on the resolutions relative to the refusal of the president to furnish papers on the british treaty, . sylvester, peter, representative from new york, , , , , ; on oaths of state officers, ; favors limitation of impost bill, ; on the impeachment clause of the constitution, ; on pennsylvania memorial, . t talbot, silas, representative from new york, . _tanners of newark, n. j._, petition of, ; referred to committee, ; do. of new york, . tatom, absalom, representative from north carolina, . taylor, john, senator from virginia, ; do. resigned, . tazewell, henry, senator from virginia, , ; on answer to president's speech, ; on resolutions relative to presentation of french flag, . _teas_, duty on, considered, ; proposed duty on, ; debated, ; duty fixed, . telfair, edward, votes for, as vice president, in , . _tennessee_, bill for laying out, before the senate, . _tennessee, admission of_, report relative to territory south of the ohio river considered, ; the people inhabiting any territory of the united states, cannot of their mere will and pleasure, and without the consent of congress, erect themselves into a separate and independent state, ; a law might be passed now to provide for it, ; no reason for objecting to receive those people as a state, ; the state government is already organized and in operation, ; statement of proceeding in tennessee, ; under the ordinance they had a clear right to be admitted, for they had the population required, ; one state preferable to two, ; the government is republican, and the population adequate to admit the state at once, ; course of proceeding which should have been taken, ; terms of the compact considered, ; constructions of the compact, ; right claimed for the people, ; resolution reported by committee adopted, ; moved that some law should be passed by congress recognizing the territory as a state before they were admitted into the union--negatived, . _territories._--_see delegate from territories._ thatcher, george, representative from massachusetts, , , , , , , , ; on duty on molasses, ; do. on salt beef, ; on the flag of the union, ; on the randall bribery case, . thomas, richard, representative from pennsylvania, . thompson, charles, appointed by the senate to notify washington of his election, ; writes to the senate respecting his notification of washington, . thompson, mark, representative from new jersey, . _title of president and vice president_, ; house committee thereon, ; report of same made, ; message from the house thereon, ; committee of conference appointed by senate, ; consideration of original report postponed, ; disagreement of committee of conference, ; resolution of the senate respecting the same, ; report of house committee thereon, ; message from senate on, ; message from senate--debate thereon, ; debate on resolution against a committee of conference with the senate on titles of president and vice president, ; constitution prescribes the power of the house respecting titles, ; a committee of conference should not be appointed because it is a subject which the house has no right to consider, ; the house agreed no title should be conferred, and a joint committee so reported, but the senate resolved upon a title, and ask our concurrence, ; excite alarm among those who fear that the constitution is hostile to popular liberty, ; to countenance such a measure would be an indignity to the house, ; conference unnecessary, ; a respect due to the senate, ; titles harmless, ; add no power, ; they diminish the true dignity and importance of a republic, ; a committee of conference very proper, ; a committee unnecessary, ; umbrage should not be given to the senate, ; no purpose secured by a committee, ; subject better be dropped, ; the proposition of a title is trifling with the dignity of the government, ; a committee of conference could be appointed without seeming to countenance the measure, ; after having adopted the report of the committee it would derogate from their dignity to rescind a unanimous resolution, ; committee appointed, . _tobacco_, manufactured, duty fixed, . _tonnage duties_, proposed, ; debate thereon, , ; fixed, ; method of discussing the subject, _note_, . _see_ _duties_ on tonnage. tracy, uriah, representative from connecticut, , , ; on duties on tobacco and sugar, ; on the president's speech, ; on exclusion of titled foreigners from citizenship, , ; on reference of letter of secretary of war, ; on the rights of the house relative to treaties, . _treasury department._--_see executive departments._ _treasury, report of secretary of._--motion that the secretary of the treasury's report be in writing, ; if he reports in person he can answer inquiries, ; propriety doubted, ; if the report is written it will be better understood, ; the importance and extent of the subject is such it should be in writing, ; motion carried, ; report under consideration, ; postponement moved, ; it embraces two important objects: first, that all idea of discrimination among the public creditors as original holders and transferees, ought to be done away; second, the assumption of the state debts by the general government, ; the states should be consulted, ; a considerable postponement required, ; speculation is rife--if postponed too long fluctuations will be still greater, ; postponed until north carolina enters the union, ; congress possess all the information necessary to act on the measure, ; speculation has existed since the securities were first issued, ; the subject of the state debts should not be decided until the sense of the legislatures is known, ; the postponement should be long enough to enable members to enter on the task with understanding, and the spirit of speculation should be counteracted at the earliest practicable period, ; impossible to suppress speculation, ; the policy of speculation, ; the speculation arisen since the report was denounced, ; objects of the report submitted in the form of independent resolutions, ; assumption of state debts considered, ; doubtful if a permanent funded debt is beneficial or not, ; history of funded debts, ; a precedent that will bring ruin, ; debts of the states unknown, ; the funding will occasion enormous taxes for interest, ; all that can be done is to provide funds for the gradual extinction, ; funding a small debt is beneficial, ; we have a debt already and some funds must be appropriated for payment of interest, ; the foreign and domestic debt carry very material distinctions, ; the domestic securities should be considered in a depreciated state, ; an equivalent was not received for them in hard cash like the foreign debt, ; domestic debt should be liquidated at its real value, ; terms proposed by the secretary, ; the government is in a very different situation with respect to foreign and domestic creditors, ; we are not judges of the claims of our creditors, but parties to the contract, ; if we are parties, what would be the decision before a court of justice, ; the french loans, ; no distinction between foreign and domestic creditors, ; the face of the paper is our guide, the demand is not to be lessened, ; if it is intended to reduce either, the principles on which such a measure is founded should be considered, ; nature of the public contract, ; the same argument might be applied to paying the continental debts at their nominal value, ; the present government should pay the debts of the united states, but as the domestic part has been contracted in depreciated notes, less than six per cent. interest should be paid on it, ; if the government is one party and the individual the other, who is the judge? ; can two parties exist in a well organized government to dispute about property and have no judge? ; is not the want of consideration a good plea? ; we stand in the same condition as the late congress, who are admitted to be parties, ; the government should be at liberty to ascertain the amount of the debts assumed as the motion contemplates, ; discrimination and liquidation the two great points involved, ; manner in which the debt was contracted, ; if the certificates, at the time they were issued, were taken for only a small part of their face, they should not now be raised to the full amount, ; debts of the united states of four kinds, ; their character, ; the subject should be decided at this time, ; a discrimination of some kind necessary, ; three classes of creditors, ; the obligations of each considered, . _to discriminate_ between original creditors and present holders, &c., moved, ; extent and form in which the debt exists, ; the united states owes the value they have received, and which they acknowledge, ; to whom is payment really due? ; four classes of creditors, ; the principles that govern the decision of their respective pretensions considered, , ; motion to amend original proposition, ; the debt is still due, and if the owner has transferred it shall we disown his act? ; the nature of contracts, ; their transferability, ; the property of the certificates is now vested in the transferees, ; if they are now divested by government, it is an _ex post facto_ law, ; the proposed discrimination, ; effects of, ; this doctrine repugnant to the interests and prosperity of the union, ; the states are restrained from passing laws violating contracts, ; public justice requires a performance of contracts, ; the new paper given might be subject to another liquidation on the same principle, ; the proposition is unjust, impolitic, and impracticable, ; strict justice the plain line of conduct, ; other objections, ; the debt is the price of our liberties, and cannot be diminished a farthing, but the measure proposed does diminish it, ; the obligation of the debt is not denied, the difficulty is how it shall be discharged, ; the justice of discrimination, ; the army repudiate discrimination, ; no legislature should interfere with a contract--but it does not appear that the transaction between the original holders and the purchasers of certificates was a fair one, ; other points in favor of the measure, ; justice or legality of the measure--its practicability or policy and consequences, ; the claim of the soldier just, ; state of public opinion, ; seven-eighths of the debt has not been disposed of from necessity, ; inequitability of the measure not shown, ; how far will this measure operate as a precedent? ; a review of the grounds upon which the proposition has been combated, ; the united states cannot pay in full original creditors or assignees, what course is just and expedient? ; all parties understood there would be no discrimination in certificates transferable, ; other objections examined, ; the ability of the government and the claims of assignees, ; motion lost, ; _note_, , . _official conduct of the secretary of the treasury_, considered, ; moved that nine resolutions on the subject be referred to the committee of the whole, ; discussion of them unnecessary and unwarranted, ; much time be wasted on them, ; objections to the first resolution, ; do. second do., ; do. third do. ; the last one objectionable, for the preceding ones determine the guilt and the last directs the president to remove the secretary, ; too short time remaining to consider the resolutions, ; the abstract propositions should be decided first, the others are unwarranted by facts, ; most unheard of course against a party accused, ; no opportunity offered for defence, ; the first resolution of great importance, ; the secretary differs from others in his opinion respecting his powers and the constitutional obligation respecting the acts of appropriation, ; shall the secretary be bound by our acts of appropriation or not? ; the first resolution is no part of the others, but should be determined, ; all referred excepting the first, second, and ninth resolutions, ; the third resolution, charging that the secretary had violated the law by applying a certain portion of the principal borrowed to the payment of interest falling due on the principal, which was not authorized, and by drawing part of the same moneys into the united states without the instructions of the president, considered, ; what regards the right of drawing money into the country, ; the case examined ; the charges of mismanagement so long before the public have now assumed shape, ; change in the tone of the charges since the session commenced, ; no self-interested pecuniary considerations imputed to the secretary, ; the charge consists of two items, ; each examined in detail, . no greatness of character known in the executive departments, ; was the money appropriated to special and distinct purposes, and did the secretary apply the money to other uses than the law directed? ; both points considered, ; if a responsible officer has violated the laws he should be called to account, ; the testimony compared with the facts, ; can any necessity be shown for deviations from positive law? ; attempt to show that the legislature were not ignorant of the drafts of the secretary, ; money borrowed in europe was economically applied to paying interest there, ; the inquiry is, whether a debt was paid out of this or that fund, ; the whole business reviewed, ; even if the secretary made the drafts without the instructions of the president, it is not probably reprehensible, ; the act was not a financial operation to avoid the necessity of drawing and remitting, ; the interest was not paid out of the principal of the loan, ; the president is the principal and the secretary the agent, ; impossible to account for the conduct of the secretary, ; to judge of his conduct we must consider his duties, and whether a necessity existed to justify his drawing, ; if the secretary has paid what was due, what, then, is the complaint, ; no law has been violated, nor any rule of propriety departed from, ; the drafts were made agreeably to the instructions of the president, ; did the authority from the president and his subsequent instructions authorize the secretary to consolidate the loans? if so, he acted legally, ; both charges examined, ; the reports of the committee, ; the questions now are questions of fact, ; these facts are too clearly supported by the reports of the secretary and accompanying documents to be denied or controverted, ; this position investigated, ; can the executive, without special permission, apply the excess of one fund to the deficiency of another? ; the drawing money without the instructions of the president established by the documents, ; both points rest on the most solid proofs, ; on the necessity of sometimes departing from the strictness of legal appropriations, ; the authority of the secretary in the special case of loans must be derived from the president, ; the recent drafts, . no proof to support the charges, ; if there had been, there is nothing criminal in them, ; insufficient reports of the secretary, ; third resolution disagreed to, ; fourth resolution disagreed to, ; fifth resolution disagreed to, ; sixth resolution disagreed to, ; seventh resolution disagreed to, ; eighth resolution disagreed to, ; after such a large vote the secretary cannot be criminated, ; review of the arguments against the secretary, . _treaty with great britain._--ratification of, ; _note_, , ; resolution calling for papers relative to the treaty with great britain, ; reasons for calling for the papers, ; opposed for want of a declared object within cognizance of the house, and because it was the groundwork of the dangerous doctrine that the house had a right to adjudge, adopt, or to reject treaties generally, ; no other source of information, ; constitutional questions likely to arise in course of debate, ; does the general power of making treaties supersede the powers of the house and leave it only an executive and ministerial instrumental agency? ; no propriety in the resolution, and no question of the constitutionality of the treaty, ; house has a right to inquire into the conduct of the officers concerned, ; preceding arguments reviewed, ; is the power of the president and senate as to treaties complete? ; power of control of english house of commons, ; true meaning of the power of appropriation in the constitution, ; a discretion exists in the house, ; legislative power completely vested in congress--to pass laws discretion is implied--the house must judge when it is required to act, ; words of the constitution respecting treaties, ; papers unnecessary, and to call for them is an unconstitutional and improper interference with the executive department, ; the house has a _right_ to ask for the papers, because their co-operation and sanction was necessary to carry the treaty into effect--because they had full discretion to give or refuse that co-operation, and must be guided in the exercise of that discretion by the merits and expediency of the treaty, ; what treaties unconstitutional, ; consequences of the treaty power being unlimited and undefined, ; house has a check on treaty-making power, ; authorities referred to, ; propriety of the resolution, ; what powers has the constitution given, and to what departments have they been distributed? ; view of legislative and treaty-making powers, ; how is the will of the people expressed in the constitution to be understood? ; different constructions of the constitution, ; extent of the treaty-making power in relation to the objects specially and expressly submitted to the legislative power of congress, ; treaty power solely delegated to the president and senate, ; practice of congress, ; there are cases in which the house has not the right of withholding appropriations, ; is there any provision in the constitution by which the house can check the treaty-making power, or question the merits of treaties under any circumstances? ; review of arguments, ; must resort to the constitution to know the extent and limits of our power, ; arguments against the exclusive treaty-making power considered, ; this doctrine is inconsistent with the constitution and the law of nations, ; the state of the question, ; words of the constitution, ; have we a right to exercise our judgment on the treaty? is the question, ; depends on a rational construction of the fundamental principles of government, as drawn from the histories of nations, ; construction of the constitution, ; the treaty is now the law of the land, and no act of congress is or can be necessary to make it so, ; no right to require papers where there is no obligation to obey, ; different kinds of treaties, ; power given to congress to regulate commerce considered, ; if these sentiments prevail, the small states would be deprived of one of their most essential rights, ; when treaties contain stipulations bearing a relation to the specific power vested in the legislature, the house has a right to take cognizance of it, as it is proved by three considerations, ; these examined, ; the express words of the constitution will not support either position without a liberty of construction--what construction is most agreeable to the general principles of the constitution? ; exposition of the constitution and the position of the opposition, ; the right to call for papers sanctioned by the uniform practice of the house, ; practice in cases of former treaties, ; _note_, ; view of the constitutional rights of the house, ; these rights considered in two points of view, ; case of the proclamation of neutrality, ; the construction of the constitution advanced, ; explanation of the original resolution, ; does the treaty operate by way of obligation? ; is it paramount to a law, and can it repeal law, although itself cannot be acted upon by the legislative power? ; this question considered, ; objections to the power of the house considered, ; precedents examined relative to a call for papers, ; objections urged by the advocates of the power of the house considered, , ; authority of the united states examined, ; the house cannot legislate without information, ; what does the constitution say? ; if the doctrines now urged prevail, they will make inroads on the constitution, ; the propriety of calling for papers if the legislature have no part in making treaties, ; points of the subjects reviewed, ; duty to look into every treaty, ; what was the constitution of the united states? ; resolution as offered, ; passed, ; note, . _message of the president declining_ to send papers, ; _note_, ; debate on reference of the answer, , ; answer referred to committee of the whole, ; resolutions introduced relative to the class of treaties over which the house claims a right of judgment, and limits it to those which involve a matter which has been specially granted to congress, ; important occasion when two of the constituted authorities of the government interpret differently the extent of their respective powers? ; message considered, ; it related to two points, the application for the papers and the constitutional rights of congress and of the house of representatives on the subject of treaties, ; these points examined, , , , ; resolutions adopted, ; _note_, . _execution of the treaty_, considered, ; resolution to carry it into effect, ; the proposition must be determined by the fact of whether the treaty was a good one, or whether there were extraneous reasons for putting it in force, ; the merits of the treaty considered as it relates to the execution of the treaty of , as it determines the several points in the law of nations, and as it respects the commerce between the two nations, , , ; extraneous circumstances--the treaty continues two years--consequences of not carrying it into effect, ; principles of the treaty considered, ; merits of the treaty, ; admission to british ports, ; article respecting british debts, ; sequestration of debts, ; articles of a temporary nature considered, ; burke on the commerce of the american colonies, ; points which pressed themselves on the negotiation and demanded provision, , ; the contents of the treaty examined, , , , ; the commercial part of the treaty examined, ; want of reciprocity in the instrument, ; view of the origin of the treaty--party dissensions which then prevailed, ; critical posture of our affairs, &c., considered, , ; objected against the treaty that a claim for negroes and other property taken at new york had been overlooked, ; has not the ownership of the property changed under the law of nations? ; correspondence of the commissioners, , ; consequences if the treaty is rejected, ; treaty is unconstitutional and pernicious, ; if the treaty is executed we admit the ground taken by the executive, ; merits of the treaty, ; prejudice against the treaty in the public mind, ; the permanent and the temporary part of the treaty considered, ; the only question is, whether they would or would not appropriate money to carry the treaty into effect, ; objections to the treaty considered, ; the negotiation was advisable, and the only means of avoiding war, ; consequences of rejecting the treaty, ; three objects embraced in the treaty, ; on the expediency of carrying the treaty into effect, , ; free bottoms make free goods, ; effects of rejecting the treaty, , ; treaty of , ; threats of war if treaty rejected, ; constitutional rights of the house to be looked at with candor, ; will we observe the treaty or break it? is the only question, ; consequences of its rejection, , ; the good and prosperity of the people should be the primary object, ; notwithstanding the objections to the treaty the appropriations ought to be granted, ; resolution carried in committee by vote of the chairman, . resolution offered in the house expressive of its opinion of the treaty, ; debate on its propriety, ; amendment lost--resolutions for executing the treaty passed, ; _note_, . tredwell, thomas, representative from new york, , , , . trumbull, jonathan, representative from connecticut, , , , , , , ; on a committee to report a bill regulating oaths, ; elected speaker, ; speech on taking the chair, ; moves an amendment to the bill on the slave trade, ; senator from connecticut, . tucker, thomas tudor, representative from south carolina, , , , , ; takes part in the debates on laying duties on imports, ; opposes duty on salt beef, ; do. on candles, ; on duty on unwrought steel, ; opposes duty on nails, ; opposes duty on salt as unequal, ; on high duties, ; favors low tonnage duties, ; advocates moderate duties on imports, , ; opposes the appointment of committee of conference in reference to title of president, ; favors reduction of duty on molasses, if those on other articles are reduced, ; repels insinuation of a bargain, ; opposes the motion to lay a duty on african slaves, ; gives reason for his vote on limitation of the impost bill, ; on the treasury department, ; on compensation of president, ; further remarks on same, ; on the difficulty of amending the constitution, ; on the principles which should control the selection of a seat of government, ; further remarks, ; on a short period of residence for naturalization, ; further remarks, , ; favors discrimination among the public creditors, ; urges the dismission of the quaker memorial, ; on the commitment of the bill for a bank of the united states, . turner, george, memorial of, . v van allen, john e., representative from new york, , , . van cortlandt, philip, representative from new york, , , . van gaasbeck, peter, representative from new york, , . van rensselaer, jeremiah, representative from new york, . van rensselaer, stephen, representative from new york, , . varnum, joseph b., representative from massachusetts, ; on the pay of the speaker, . venable, abraham, representative from virginia, , , , ; on the attendance of the secretary of war, , on the president's speech, ; on the pennsylvania insurgents, ; on amending naturalization laws, ; on the resolutions relative to intruders on indian lands, , ; on the military and naval appropriation, ; on the sense of the house relative to the british treaty, . _vermont_--vote for president in , . _vessels._--registering and clearing bills, on, . _vice president_, ordered to sign the answer to washington's inaugural, in behalf of the senate, ; takes the oath, ; compensation of, , ; fixed, ; his term of office, when commenced, ; letter to the mayor of new york, ; vote for in , ; do. in , . vining, john, representative from delaware, , , , , , , ; proposes the organization of a home department, ; further remarks, ; on the president's power to remove officers, ; moves the organization of a domestic department, ; on the president's power of removal, ; on the compensation of members of congress, &c., ; further remarks, , ; introduces a resolution for a home department, ; remarks on, ; further remarks, ; on the form of amending the constitution, ; on the location of a seat of government, ; on the banks of the delaware for do., ; on a seat of government, ; further remarks, ; on interference of excise officers in elections, ; on the commitment of a bill for a bank of the united states, ; speech on the bank, ; on the ratio of representation, . _virginia._--vote for president in , , ; county lands, report on, . _virginia legislature._--offers ten miles square to united states for a seat of government, . _vote_, on limiting the time for the operation of the impost bill, ; on the president's power of removal, ; on striking out susquehanna and inserting potomac for the seat of government, ; on motion for discrimination among public creditors, ; _note_, on do. ; on quaker memorial, . _votes, electoral._--counted in the presence of senate and house in , ; do. . w wadsworth, jeremiah, representative from connecticut, , , , , , ; appointed on committee to draft bill on tonnage duties, ; urges reduction of duty on molasses, ; on a board of treasury or superintendent of finance, ; on the right of instructions, ; on deliberation in fixing the seat of government, ; further remarks, ; on discrimination among the public creditors, ; on the post office bill, ; on the petition of catharine greene, ; on the reduction of the army, ; further remarks, , ; on the pay of soldiers, , ; against the embargo laws, ; urges increased duty on coal in foreign vessels, ; on duties on manufactured tobacco and refined sugar, ; on the advance of money to france, ; on the rage against nobility, ; on defence of the frontiers, ; on the trial of intruders upon the indians, ; on the protection of settlers, . wadsworth, peleg, representative from massachusetts, , , . walker, francis, representative from virginia, , . walker, john, appointed senator by governor of virginia, . walton, george, senator from georgia, . ward, artemas, representative from massachusetts, , , , . _war department.--see executive departments._ washington, george, elected president in , ; votes for as president in , ; do. , ; proceedings at his inauguration, ; do. inaugural address, ; reply to the answer of the senate to the inaugural address, ; day of his inauguration, _note_, ; resolution for an equestrian statue, ; birthday--motion to adjourn, ; considered, ; motion lost, . watts, john, representative from new york, , . wayne, anthony, representative from georgia, ; on the petition of catharine greene, ; further remarks, . _ways and means_, proposition to appoint a committee, . _western lands.--see public lands_. wheaton, joseph, appointed sergeant-at-arms, . white, alexander, representative from virginia, , , , , ; on committee to report a bill regulating oaths, ; advocates delay in fixing scale of duties on imports, ; further remarks, ; on duty on hemp, ; opposes duty on salt, ; report from committee of elections, ; presents resolution of virginia legislature, offering ten miles square to united states for seat of government, ; thinks appropriation bills are limited by the constitution, ; further remarks, ; sustains the power of the president to remove certain officers, ; on the power of the president to remove secretary of state, ; further remarks, ; opposes discrimination in the pay of members of the two houses, ; on compensation of president, ; further remarks, ; on compensation of vice president, ; on a home department, ; on amendments of the senate to house bill on seat of government, ; on admission of reporters of the press, ; on the constitutional power of congress respecting naturalization, ; on discrimination among the public creditors, ; on report of committee on quaker memorial, ; on a seat of government, ; further remarks, ; on vacancy in the presidency, ; on the meeting of the electoral college, ; moves to strike out of bill all relative to vacancy of president, ; on the bill for the encouragement of the cod fisheries, . white, rev. bishop, elected chaplain of the senate, . white, james, delegate from territory south of ohio river, . whitney, charles, arrested with robert randall, ; examination of, . _widows and orphans_, a bill making compensation to certain, considered, . williams, benjamin, representative from north carolina, , ; on a salary for members of congress, ; on post-roads, ; on the rights of the house relative to treaties, ; on the execution of the british treaty, ; on the army establishment, . williams, john, representative from new york, . williamson, hugh, representative from north carolina, , , ; on answer to president's message, ; further remarks, ; on selection of land by settlers, ; on vacancy in the presidency, ; on the commitment of the bill for a bank of the united states, ; on resignation of william pinkney, ; on the bill for the encouragement of the cod fisheries, ; on the emblems on american coins, ; on the resolution that the secretary of the treasury and at war attend the house, and report relative to defeat of st. clair, ; against attendance of secretary of war, ; on discharging committee on defeat of st. clair, ; on protection of american commerce, ; on reduction of the army, ; further remarks, . willis, francis, representative from georgia, , . _wines_, all other, discrimination opposed, ; duty on, . wingate, paine, senator from new hampshire, , , , , . winn, richard, representative from south carolina, , , . winston, joseph, representative from north carolina, , . _wool cards_, duty on, ; state of manufacture, . wynkoop, henry, representative from pennsylvania, , , . y _yeas and nays_ on contested election of wm. smith, ; on the bill organizing the state department, ; on embracing all the proposed amendments of the constitution in one report, ; on fixing the seat of government on the potomac, ; on wilmington for the seat of government, ; on potomac, susquehanna, or delaware, instead of east bank of susquehanna, ; delaware instead of do., ; banks instead of east bank, ; on inserting, or maryland, after "pennsylvania," ; on wilmington, instead of "city of new york," ; on "philadelphia," instead of "new york," ; on proviso of mr. gale, ; on resolution for the appointment of commissioners to fix the site for a seat of government, ; on the bill to establish a seat of government, ; on postponing consideration of amended bill relative to seat of government, ; on the proviso of mr. madison relative to a seat of government, ; in senate on resolution relative to unfinished business, ; in senate, on bill for non-intercourse with rhode island, ; on commitment of pennsylvania memorial, ; on quaker memorial, ; on motion to strike out "potomac," and insert delaware for seat of government, ; on motion to strike out "potomac," and insert germantown, ; to strike out "potomac," and insert baltimore, ; on the passage of the bill fixing a seat of government, ; on motion to strike out a clause of excise bill, ; on its passage, ; on the bill for a bank of the united states, ; on the resolution respecting ratio of representation, ; on motion to amend by striking out second section of bill for the protection of the frontiers, ; on the bill for the encouragement of the cod fisheries, &c., ; on the resolutions relative to the courtesies of france, ; on receding from the amendment relative to the stamp of american coins, ; on the apportionment bill after it was vetoed, ; on its subsequent passage, ; on motion to strike out clause of the army reduction bill, ; on agreement of the house in said motion, ; on the passage of the bill relative to fugitives from justice, ; on the third resolution relative to the official conduct of the secretary of the treasury, ; on the fourth resolution, &c., ; on the fifth resolution, &c., ; on the sixth resolution, &c., ; on the seventh resolution, ; on the question relating to, &c., ; on amendment of constitution in the senate, excluding bank officers from congress, ; relative to the interest of the united states in the bank, ; on senate resolution relative to open doors, ; on the eligibility of albert gallatin, ; on postponing consideration of the commerce of the united states, ; on the bill making preparations for the algerine war, ; on the resolutions of non-intercourse with great britain, ; on continuing the embargo, ; on the reference of the indemnity resolutions to the committee on sequestration of british debts, ; on motion to reject the bill laying duties on tobacco and sugar, ; on the bill to augment the army, ; on amendment to raise a force for protection of south-west frontiers, ; on striking out certain words in the answer to the president's speech, ; on the indemnification of the sufferers by the pennsylvania insurgents, ; on the resolution relative to indian lands in north carolina, ; on resolutions relative to intruders on indian lands, ; in senate on agreeing to answer of president's speech, ; in senate on resolutions relative to french flag, ; in senate, relative to the admission of tennessee, , ; on the resolution relative to the treaty with great britain, ; on the resolutions relative to the refusal of the president to furnish papers on the british treaty, ; on the resolution expressive of the sense of the house on the british treaty, ; on the resolution of the house relative to the execution of the british treaty, ; _note_, ; on the resolution that some law should be passed by congress recognizing tennessee as a state before its admission, ; on the claim of catharine greene, . end of vol. i. footnotes: [ ] of this talent, mr. gales has lately given a most remarkable instance, in drawing out from notes which had remained as lost for near forty years, a most important speech of mr. randolph, delivered shortly before the late war with great britain, and in relation to the then condition of public affairs, both with great britain and the emperor napoleon the first. mr. gales had taken down the speech: the notes of it got into the bottom of a trunk, and lay there till a year ago, when mr. gales, searching high and low for matter for the annals, chanced to find them; and immediately drew out the full speech with the freshness and vigor of a morning report of a previous day's debate. [ ] in the first five years of the existence of the federal government, there was no publication of debates in the senate, that body having sat with closed doors, in its legislative as well as in its executive capacity, until the th of february, . until that time there will be no senate debates to be abridged; but the proceedings of the body were fully kept in journals, and selections from these proceedings will afford much curious and instructive information to the student of american political history, as showing the manner in which the founders of the government put it into operation, their views in relation to important points, and the changes which the constitution of the senate has undergone. [ ] a list of the senators and representatives who composed the first congress is inserted at page . [ ] his address being in the nature of an inaugural, and confined to general recommendations, only the beginning and the ending, so characteristic of the father of his country, have been given. [ ] these entries in relation to the secretary of foreign affairs show the early method of communicating with the secretaries, being called before the senate to give explanations and bring papers--a method now superseded by reports. the early senators lamented the change, believing the old way to be the best for getting the information that was wanted, and also the best security against the appointment of incompetent secretaries. [ ] another instance of the early practice of the government. the president consults the senate beforehand upon the negotiation of indian treaties, and sends the secretary at war in person to give the necessary explanations: this mode of consulting the senate since so far departed from that that body has no knowledge of the treaty until sent in for ratification. [ ] this message of president washington is a strong instance of his deference for the senate, thus giving up upon its objection the nomination of a citizen which he knew to be fit and meritorious. it was also a strong instance of the deference of the senate to the senators of the state interested in the nomination, col. fishbourn having been rejected simply because the georgia senators preferred another. [ ] these proceedings of president washington and the senate, in fixing on the mode of communication between them when treaties were to be formed, or appointments to be made, was their interpretation of the clause in the constitution which requires the advice and consent of the senate on such occasions. their interpretation was (according to the obvious meaning of language) that the advice and consent should be obtained beforehand; and the practice was in conformity to that interpretation, as will be seen in the proceedings of the next day, when the president and secretary at war attended the senate, and the president gave in a statement of facts, which, in his opinion, rendered treaties with the southern indian tribes necessary, and asked the advice and consent of the senate upon their formation. these proceedings will be read with interest by all who study the working of our government, and observe the changes which its practice has undergone. the change has been great in the mode of obtaining this advice and consent, and greatly to the prejudice of the free and independent action of the senate in such cases. instead of consultation and concurrence beforehand, as the words of the constitution imply, and as the practice under washington required (even to the minute provisions of an indian treaty), the most important, and even unusual and extraordinary treaties, and with foreign powers, have come to be negotiated (oftentimes) without even the knowledge of the senate, concealed from it until concluded, and then laid before the body for ratification, as an administration measure--the ratification to be pressed under all the influences of an executive measure, and upon all the considerations of inconvenience and danger to attend the rejection of a measure executively concluded with a foreign power. under such circumstances treaties are often ratified, and appointments often confirmed, under a moral duress of the senate, the weight of the executive and the inconveniences of rejection leaving no chance for the free action of the body. president polk revived the washingtonian mode of consulting the senate, in the formation of the oregon treaty in , asking the advice of the senate beforehand on the point of establishing the boundary line with great britain on the parallel of degrees; whereof the secret as well as the public history may be seen in the "thirty years' view," under the proper year. the personal attendance of the president and secretaries being found to be inconvenient, that part of the mode of communication was dispensed with in washington's time. [ ] the question in relation to north carolina arose out of the circumstance that she had not then accepted the federal constitution, and was not at that time a member of the union. [ ] north carolina was not represented in the _first_ session of this congress, not having at that time accepted the constitution. [ ] rhode island, for the same cause, did not appear till the _third_ session. [ ] mr. bland deceased during the second recess of congress, and was succeeded at the third session by william b. giles. [ ] see notes to list of senators. [ ] ibid. [ ] for a list of the representatives in the first congress, see p. . [ ] for this list see the senate journal. [ ] this scale of duties, thus offered by the continental congress of , and agreed to by the states, after proposing small specific duties on a few enumerated articles, (wines, spirits, teas, coffee, cocoa, molasses, sugars and pepper,) proposed an _ad valorem_ duty of five per centum upon all other goods, computed on the value of the article at the time and place of importation. [ ] in bringing forward the measure for imposing impost and tonnage duties, mr. madison proceeded in the approved parliamentary form, of first discussing and agreeing upon the provisions of the measure, and then appointing a committee to bring in a bill according to what had been agreed upon. long experience had proved that to be the safest mode of legislation, giving full scope to the whole intelligence of the house, before the measure had taken a form which it might be difficult to alter, as is always the case when a committee brings in a detailed bill, (without previous instructions from the house,) and which, as an act of a committee, and as a matured plan, (though done by a few,) has an authority which resists alteration, and renders amendments, at the instance of a member, most difficult to obtain. this wise and safe practice, of settling the provisions of a bill beforehand, has been nearly abandoned by our congress--to the great prejudice of beneficial legislation. [ ] not additional. the enumerated articles were not to be subject to the _ad valorem_ duty of five per centum. [ ] the delegates from that state were gone to meet the vice-president, who was expected in town this day. [ ] the members of the two houses of congress began to assemble on the th day of march, but a quorum did not appear in the house of representatives until the st of april, nor in the senate until the th of that month. the organization of the two houses necessarily preceded the inauguration of the president, which took place on the th of april. some of the ceremonies observed on that occasion, and for some time afterwards, have since been discontinued: as, the proclamation for the long life of the president--his repairing to church to attend divine service, accompanied by the two houses--his re-conducting to his own house by a committee of the two houses--the answer to the inaugural address by each house. [ ] in this measure of the tonnage duties the house, as in the case of the impost duties, (and in fact in all other cases in which a law was wanted,) first settled the provisions of the bill in discussing the propositions on which it was to be founded, and then directed a committee to bring in a bill accordingly: but the bill, when brought in, still open to debate and amendment. this was the safe mode of legislation, approved by long experience in the british parliament, and still more commended by the evils which have grown out of its abandonment in our congress. [ ] the legislative and diplomatic history of the united states affords abundant evidence of the wisdom of the objection taken in this debate against the indefinite duration of public acts. to repeal such laws, or to terminate such treaties, is almost impossible. besides the difficulty of getting the three legislative branches to agree at the same time upon the repeal, or the termination, an interest grows up under the measure which becomes identified with its existence, and works for its perpetuity; and when it has been continued for some years, and the temporary circumstances in which it originated have been forgotten, it becomes invested with the sanctity of age, and finds protection in the spirit which dreads change as innovation. of this character, two acts of congress, and two conventions with foreign powers, may be mentioned as samples of many in our history, to wit: . the factory system of supplying the indians with cheap goods through government agents, established as a temporary experimental measure for three years, &c., under washington, and which was soon found to be working badly both for the indians and for the government, and yet which could not be got rid of for thirty years! nor until after the whole capital had disappeared. . the salt tax, and the fishing bounties and allowances founded upon it, revived as a temporary war-tax during the late war with great britain in , and now continued forty years after the war has been finished! successfully resisting all attempts at repeal, while burthening the people with an odious tax, and enabling the fishing interest to take some $ , annually (near five millions up to this time) out of the public treasury, most of it unduly. of treaties may be considered as instances the convention with great britain for the joint occupation of the columbia, where the stipulated right of each party to terminate it at pleasure upon a year's notice, could not be exercised for twenty years! and then, with alarms of war and great disturbance to the country. and also the convention of , with the same power for keeping up each a squadron on the coast of africa, (for the suppression of the slave trade,) for five years; and until either party should give notice for its abrogation. the five years have been out three times over! yet the notice cannot be given; and a temporary measure becomes permanent through an illusory limitation. [ ] the preamble to this act, and the speeches in favor of it, have been greatly relied upon in support of a protective tariff, but without reason, as the speeches themselves, and the rate of duties established, fully show. every speech showed revenue to be the object of every proposed duty--protection to domestic industry being an incident to result from the accomplishment of that object, and from such moderate duties as were then imposed--the _ad valorems_ being five per centum, - / and - / ; and only a single class going as high as fifteen per centum, and that class confined to an article of luxury, to wit: imported pleasure carriages. the specific duties were on the like moderate scale; yet these moderate duties, thus laid for revenue, gave all the protection which was then asked, and to the satisfaction of every part of the union, and cannot be quoted as any argument for the protective system which so much disturbed the country. [ ] this call to order, and enforcement of it, for so slight a deviation from the point in debate, is a striking illustration of the business habits of our early congresses, and accounts for the reason (_inter alia_) why the debates of that early time were so pithy, pointed, sententious, instructive and beautiful. [ ] it is presumable he alluded to mr. gerry, a member of a committee of congress, appointed to superintend the treasury. [ ] the questions of contested elections, generally depending upon personal and temporary circumstances, are usually omitted in this abridgment; but where they rise higher and reach the principles of government, or connect themselves with the national history, then they become questions of general and permanent interest, adding to the stock of political knowledge; and as such are entitled to historical commemoration. upon this view of such questions the debate on the contested election of william smith, of south carolina, is here given; and that on the contested election of albert gallatin, and some others, will be given hereafter. [ ] this remark of mr. madison shows the true reason for instituting the previous question, which was to prevent debate in cases in which there ought not to be any; cases in which it was necessary to guard the house against improper discussion. what a departure from that reason has since taken place in the house of representatives! for the senate has, thus far, been shielded from the introduction of that question and its consequent abuse. [ ] it was afterwards renewed and carried, and in that form the amendments were made, twelve in number, and form additional articles to the constitution, leaving the text of that instrument unaltered, but controlled by the amendment where they differ, as in the twelfth amendment. [ ] by taking the hour of o'clock for the funeral, the adjournment of the two houses, and the loss of a day was obviated, while becoming respect was shown to the memory of the deceased member. [ ] having found a personal attendance on such occasions inconvenient, president washington adopted the form of a written message in asking the advice and consent of the senate to the formation of the treaties which he judged to be necessary. mr. polk followed this form in consulting the senate on the oregon treaty of . [ ] the galleries were unusually crowded. [ ] the committee reported in favor of a residence of two years, and with that provision the bill was passed. [ ] estimated at twenty-one millions of dollars, and distributed among the states thus: new hampshire, $ , massachusetts, , , rhode island, , connecticut, , , new york, , , new jersey, , pennsylvania, , , delaware, , maryland, , virginia, , , north carolina, , , south carolina, , , georgia, , ----------- $ , , [ ] the motion of mr. madison was lost, and with it the largest door was opened to the pillage of original creditors, the plunder of the public treasury and the corruption of congress which the history of any government has ever seen. the immediate mischief was some thirty millions: it was only the beginning. assignees of claims have since been the great suitors to congress--purchasing for a trifle, and upon speculation--pursuing the recovery by indirect means--taking no denial--and gaining in the end what was scouted at the start. it has given rise to a new profession--a new industrial pursuit, still more industrious by night than by day--hunting up claims, pressing them upon congress; and by organization, skill, perseverance, appliances, and seductions carrying through the most unfounded demands. by the common law a _chose in action_ (an executory contract) was not assignable; and the whole experience of our government from the assumption of the state debts, and funding of the revolutionary certificates in down to the present day, shows that the interest of the original creditor, the safety of the treasury, and the purity of congress require this wise common law principle to be applied to all claims upon the government. [ ] these proceedings put an end to abolition petitions in congress. the society of which dr. franklin was president was purely philanthropic in its character, and having got the answer to their petition, "that congress had no right to interfere in the emancipation of slaves, or their treatment in any of the states," acquiesced in the decision and did not repeat their application. [ ] this measure became combined with the assumption bill. each had failed by small majorities: both were afterwards passed. there was a strong sectional party for each, but not a majority. the eastern and middle states were for the assumption--the southern states against it: these latter were for the potomac for the seat of government--the former for the susquehannah. the discontent was extreme on each side at losing its favorite measure. at last the two measures were combined. two members from the potomac who had voted against the assumption, agreed to change their votes: a few from the eastern and middle states who had voted against the potomac, agreed to change in its favor; and so the two measures were passed. mr. jefferson gives this account of it, omitting his strictures: "this measure (the assumption) produced the most bitter and angry contest ever known in congress, before or since the union of the states. i arrived in the midst of it: but a stranger to the ground, a stranger to the actors in it, so long absent as to have lost all familiarity with the subject, and as yet unaware of its object, i took no concern in it. the great and trying question, however, was lost in the house of representatives. so high were the feuds excited on this subject that, on its rejection, business was suspended. congress met and adjourned from day to day without doing any thing, the parties being too much out of temper to do business together. the eastern members threatened secession and dissolution. hamilton was in despair. as i was going to the president's one day, i met him in the street. he walked me backwards and forwards before the president's door for half an hour. he painted pathetically the temper into which the legislature had been wrought--the disgust of those who were called the creditor states--the danger of the secession of their members, and of the separation of the states. he observed that the members of the administration ought to act in concert--that though this question was not of my department, yet a common duty should make it a common concern--that the president was the centre on which all administrative questions ultimately rested, and that all of us should rally around him, and support, with joint efforts, measures approved by him; and that the question having been lost by a small majority only, it was probable that an appeal from me to the judgment and discretion of some of my friends, might effect change in the vote, and the machine of government, now suspended, might be again set in motion. i told him that i was really a stranger to the whole subject; that not having yet informed myself of the system of finances adopted, i knew not how far this was a necessary sequence; that undoubtedly, if its rejection endangered a dissolution of our union at this incipient stage, i should deem that the most unfortunate of all consequences, to avert which all partial and temporary evils should be yielded. i proposed to him, however, to dine with me the next day, and i would invite another friend or two, bring them into conference together, and i thought it impossible that reasonable men, consulting together coolly, could fail, by some mutual sacrifices of opinion, to form a compromise which would save the union. the discussion took place. i could take no part in it but an exhortatory one, because i was a stranger to the circumstances which should govern it. but it was finally agreed, that whatever importance had been attached to the rejection of this proposition, the preservation of the union, and of concord among the states, was more important, and that therefore it would be better that the vote of rejection should be rescinded--to effect which some members should change their votes. but it was observed that this pill would be peculiarly bitter to the southern states, and that some concomitant measure should be adopted to sweeten it a little to them. there had before been propositions to fix the seat of government either at philadelphia, or at georgetown on the potomac; and it was thought that by giving it to philadelphia for ten years, and to georgetown permanently afterwards, this might, as an anodyne, calm in some degree the ferment which might be excited by the other measure alone: so two of the potomac members (white and lee, but the former with a revulsion of stomach almost convulsive) agreed to change their votes; and hamilton undertook to carry the other point." [ ] could the extent to which the evil has since been carried, have been foreseen at the time, the state of the vote might have been very different. [ ] topics of temporary interest omitted. [ ] at this commencement of the second congress, being in the third year of washington's administration, and when the finances had been brought to order and system by general hamilton, and the machinery of government put into fair and full operation, a proper point presents itself to look at the expenses of the new government, both as a fact at the time, and as a point of comparison in the future. in the annual speech which the president delivered to the two houses, he congratulated congress on the adequacy of the revenues which had been provided, and on the prospect that no new burthens would be required to be laid upon the people. this was a gratifying announcement, and makes it desirable to see what was the revenue at that time, and to what objects applied. the first inquiry is answered by a recurrence to the two tariff acts which had been passed--one at the first, the other at the second session of the first congress. the first act had produced near two millions of dollars, which, though five times beyond what was necessary for the support of the government, was not sufficient for the demands of the public debt and the indian war raging in the north-west. an augmentation of the duties became necessary, and was accomplished in the second act, but still on a scale of moderation. the _ad valorems_ were per centum, - / , , - / , ; but in counting their product, only the two first may be considered, as the mass of the importations fell under those rates; to wit, above millions under the two first, and less than one million under the three last; so that the and the - / _ad valorems_ may be considered as the effective duties, and the actual levy upon the imports. the list of specific duties was enlarged in the second bill, (the secretary of the treasury wisely saying that the experience of the world showed that duties upon quantities, ascertainable by weight and measure, were the only ones capable of safe and cheap collection, and therefore to be preferred as far as possible.) and their rate increased, but still in moderate proportion. the produce of the whole was about - / millions, which was nearly nine times as much as the support of the government required, leaving nearly eight parts out of nine to go to the public debt, the indian war, and other extraordinary objects. this important statement requires to be verified, which is done by referring to general hamilton's estimate of appropriations at the commencement of this first session of the second congress; to wit, civil list, comprehending compensation to the president and vice president--the departments of state, treasury and war--the board of commissioners--the government of the north-western territory--the judiciary--the two houses of congress--contingencies incident to the civil list: in all $ , . ; to which was afterwards added $ , for diplomatic intercourse, increasing the amount of the annual estimate to $ , . the public debt, the indian war, and other extraordinaries took all the rest, amounting to about three millions; so that this small revenue, produced by such moderate duties upon the small importation of that day, sufficed for the support of the government, for carrying on an indian war as far off, (the distance measured by time and cost of march and transportation,) and with indians far more formidable than any now in the world; and also for the interest of the public debt. this is a result for statesmen to consider, and to bring into comparison with the present state of things; and the reflection may be, that with the same spirit of economy which, then prevailed, the same knowledge of the objects for which the federal government was created, and the same determination to confine its action to those objects, the same moderate rate of duties on the large importations of this day would be entirely sufficient, both for the support of the government and for all extraordinary objects. the cost of collecting the revenue in that early period also presents a point for retrospect and comparison; it was then about and / per cent., and according to the principle of such collections, should become less in proportion to the larger amount collected. on the contrary, the increase has been inordinate! and is, perhaps, now hardly ascertainable, but cutting deep into the national income. [ ] the case of pennsylvania goes far to sustain this view. the policy of william penn was that of justice and humanity to the indians, and his colony was long exempt from its calamity of savage hostility. it had been settled seventy years--from to --before an indian killed one of its inhabitants, and then in consequence of a disturbance in a neighboring province. such an exemption, for so long a time, and while all the other colonies were involved in indian wars from their early settlement, while so honorable to penn's government and to the inoffensive manners of the inhabitants, goes far to show that the indians were manageable by good treatment, and that, although savage, their savageism was not of a kind to resist the effects of justice and kindness. [ ] this speech, of cornplanter, the famous chief of the seneca tribe, (one of the six nations,) does not appear in the debates, having been confidentially read to the house; but it is found in the state papers of the time, and is, as the allusions to it implied, a plea in behalf of the indians against the wrongs of the whites. intrusion upon their lands, fraudulent purchases, and killing unoffending indians, are the subjects of complaint. the speech opens with a characteristic appeal to washington. "father: the voice of the seneca nation speaks to you, the great councillor in whose heart the wise men of all the thirteen fires (thirteen united states) have placed their wisdom. it may be very small in your ears, and we therefore entreat you to hearken with attention: for we are about to speak of things which are to us very great. when your army entered the country of the six nations, we called you the town destroyer; and to this day, when that name is heard, our women look behind them and turn pale, and our children cling close to the necks of their mothers. our councillors and warriors are men, and cannot be afraid; but their hearts are grieved with the fears of our women and children, and desire it to be buried so deep as to be heard no more. when you gave us peace, we called you father, because you promised to secure us in the possession of our lands. do this, and, so long as the lands shall remain, that beloved name will live in the heart of every seneca." then followed a complaint for wrongs done them in their lands; to which washington replied that that wrong was done before the new government was established and the management of indian affairs given up to it; but that they would now be protected. this reply fell short of his expectations, and the cornplanter rejoined: "father: your speech written on the great paper, is to us like the first light of the morning to a sick man, whose pulse beats too strongly in his temples, and prevents him from sleep. he sees it and rejoices, but is not cured." of killing and robbing their people he said: "three men and one woman have been killed at big beaver creek, and they were good people, and some of the white people will testify this. twenty-seven men came from another state, and murdered these men in the quaker state where they had come to trade, and took away all the horses, and all the goods they had purchased from the traders." the president answers to this complaint that he is very angry to hear of this murder and robbery--that he will have it inquired into, and will comfort the friends and relations of the persons who were killed, and make them compensation for the horses and property taken; and do all in his power to bring the murderers to justice, and that he will consider the crime as bad, exactly, as if committed against so many white people, and will use the same endeavors to bring them to punishment. satisfied with the assurances which the president gave them, the cornplanter, and the other chiefs with him, took a formal and affectionate leave in writing; in which they say: "father: no seneca ever goes from the fire of his friend until he has said to him 'i am going.' we therefore now tell you, that we are setting out for our own country. father: we thank you from our hearts, that we now know there is a country we may call our own, and on which we may lie down in peace. we see that there will be peace between your children and our children, and our hearts are very glad." on arriving at pittsburg on their way home, for these interviews with washington took place in philadelphia, these children of the forest with a native sentiment of graceful politeness, wrote back to him to let him know how they were getting along, the whole expressed in two brief sentences. "through the whole quaker state, as we came up the road, we were treated well, and they took good care of us until we came here. one misfortune happened only, that one of our wagons is not yet arrived here, the one we first engaged, and with the goods you presented to us." they always speak affectionately of the quaker state, and in one of the speeches to president washington, having occasion to mention a promise made to them by the state, said: "the quaker state will do what it promises." [ ] mr. jefferson, secretary of state, in his report on the fisheries. [ ] letters of the secretary of war and quartermaster general. [ ] for an authorized establishment of , men, of all arms, the actual establishment being about , . it would be curious to compare the army expenses of that day with those of this day, and the comparative care with which congress looked into these expenses at the two different periods. the united states were engaged in indian wars then as now, and upon a theatre (time and cost of getting to it considered) as far off as our indian wars are at present; for, the distance estimated in that way, is less now to california than it was then to the miami of the lakes: yet a cost of something like $ a head was considered extravagant, and such as to call upon congress for an inquiry. [ ] the bill came down from the senate where debates were not published, and seems to have passed the house without debate, and almost without division, there being but seven votes against it, and two of these (messrs. mercer and parker) from slave states. nor does it appear to what part of the bill they objected, whether to the part in relation to fugitives from justice, or to those who fled from service, for both classes of fugitives were comprehended in the same bill. it was passed on a message from president washington, founded on a communication from the governor of pennsylvania in relation to a fugitive from justice who had taken refuge in virginia, and because it was necessary to have an act of congress to give effect to the rendition clause in the constitution. there was but little necessity in those times, nor for long after, for an act of congress to authorize the recovery of fugitive slaves. the laws of the free states, and still more the force of public opinion, were the owners' best safeguards. public opinion was against the abduction of slaves; and if any one was seduced from his owner, it was done furtively and secretly, without show or force, and as any other moral offence would be committed. state laws favored the owner, and to a greater extent than the act of congress did, or could. in pennsylvania there was an act (it was passed in , and only repealed in ) discriminating between the traveller and sojourner, and the permanent resident, allowing the former to remain six months in the state before his slaves would become subject to the emancipation laws; and, in the case of a federal government officer, allowing as much more time as his duties required him to remain. new york had the same act, only varying in time, which was nine months. while these two acts were in force, and supported by public opinion, the traveller and sojourner was safe with his slaves in those states, and the same in the other free states. there was no trouble about fugitive slaves in those times. this act of did not grow out of any such trouble, but out of the case of a fugitive from justice. it was that case which brought the subject before congress; and, in the act that was passed, the case of fugitives from justice was first provided for, the first and second sections of the act being given to that branch of the subject, and the third and fourth to the other--all brief and plain, and executable without expense or fuss. in the case of a slave the owner was allowed to seize him wherever he saw him, by day or by night, sundays or week-days, just as if he was in his own state, and a penalty of $ attached to any person who resisted or obstructed him in this seizure. the only authority he wanted was after the seizure, and to justify the carrying back, and for that purpose, the affidavit of the owner, or his agent was sufficient. this act was perfect, except in relying upon state officers, as well as federal officers to execute it, these state officers not being subject to the federal law, and being forbid to act after slavery became a subject of political agitation. [ ] this was a party election, and as such conducted on both sides. marshall, in his life of washington, says of it: "by each party a candidate for the chair was brought forward; and mr. muhlenberg, who was supported by the opposition, was elected by a majority of ten votes against mr. sedgwick whom the federalists supported." [ ] the debate on this subject was one of the most elaborate, and most replete with knowledge of commercial principles and statistics, which our congress has furnished. it grew out of the clause in the constitution which gave congress power to regulate commerce with foreign nations, and gives the interpretation of that clause by its authors, which was wholly different in its nature, as well as distinct in its grant, from the power to lay and collect duties on imports. the latter was to raise revenue: the former to coerce nations into reciprocity of liberal trade with us by making a discrimination in the trade of nations to the disadvantage of the nations which refused to come into reciprocal arrangements with us. the discrimination proposed by mr. madison was per centum, and was levelled against britain, and was only defeated by five votes. in this great debate, as in that upon the bank of the united states, the genius of hamilton and jefferson were pitted against each other, each having made opposite reports on each question, which were the magazines from which the opposing speakers in congress chiefly armed themselves--mr. madison being the chief exponent of the jeffersonian side, and mr. william smith, of south carolina, that of general hamilton. it is curious that while this power to regulate foreign commerce by congress, was one of the chief causes for forming the federal government, yet it has never been exercised by congress, and seems to be a power overlooked, or confounded with that to lay duties and imposts for revenue. though not yet exercised, it is a power which has found need for its exercise, and will find it again. our immense commerce, if all articles are taxed even moderately, will produce far more revenue than the economical and fair administration of the government would require: a large part of it would be left free, as after the payment of the public debt in president jackson's time; and as may be again after the extinction of the public debt, and the introduction of economy into the expenditures. a moderate duty on two-thirds of the importations may then be sufficient for the expenditures of the government, leaving (say) one-third to go upon the free list. now the nations which receive the chief benefit of that large free importation ought to reciprocate the favor by taking something free, or at a moderate duty, from us. "_free commerce is not to be given in exchange for burthens and impositions_;" and that was the principle of mr. madison's resolutions, which were barely defeated, and that by the influence of the mercantile class engaged in commerce with great britain. a full view of this subject is given in the first volume of the thirty years' view, in giving an account of the effort of the author to revive mr. madison's plan. [ ] it is grateful to behold the immense progress which the humanity of nations has made. great britain is no longer subject to the imputation of exciting pirates and savages against us. she has long since ceased to instigate indian hostilities, and long ago joined us in humbling algiers. far from stimulating barbarian war, she even interposes to save us from civilized war with great nations--witness the proffered mediation of william the fourth to settle the difficulty between france and the united states, in general jackson's time: a beautiful instance of old animosity extinct under time, and former evil deeds succeeded by works of kindness and respect. [ ] this seventh, article stipulated indemnity to the owners of the deported slaves. [ ] mr. jefferson resigned his place of secretary of state at the end of this session, and was succeeded by mr. edmund randolph, of virginia. of the resignation and character of mr. jefferson, marshall thus speaks: "this gentleman withdrew from political station at a moment when he stood particularly high in the esteem of his countrymen. his fixed opposition to the financial schemes which had been proposed by the secretary of the treasury, and approved by the legislative and executive departments of the government; his ardent and undisguised attachment to the revolutionary party in france; the dispositions which he was declared to possess in regard to great britain; and the popularity of his opinions respecting the constitution of the united states; had devoted to him that immense party whose sentiments were supposed to comport with his on most or all of these interesting subjects. to the opposite party he had, of course, become particularly unacceptable. but the publication of his correspondence with the french minister, _genet_, dissipated much of the prejudice which had been excited against him. he had, in that correspondence, maintained, with great ability, the opinions embraced by the federalists on those points of difference which had arisen between the two republics, and which, having become universally the subjects of discussion, had in some measure dissipated those topics on which parties had previously divided." [ ] the ratification of the treaty, with the exception of the th article, was by the following vote: yeas--_messrs._ bingham, bradford, cabot, ellsworth, foster, frelinghuysen, gunn, henry, king, latimer, livermore, marshall, paine, potts, read, ross, rutherford, strong, trumbull, and vining-- . nays--_messrs._ bloodworth, brown, burr, butler, jackson, langdon, martin, mason, robinson, and tazewell-- . this excepted article related to the direct trade with the british west indies; and the recommendation added to the clause of ratification was with a view to obtain the full enjoyment of that trade. this was in the year , and the object of the recommendation was not obtained until above thirty years thereafter, and under the administration of general jackson. [ ] this recommendation to treat further for obtaining indemnity for the slaves carried off by the british during the revolution, remained without effect, and all claim to that indemnification was relinquished by the treaty of . but the same deportation of slaves took place in the war of , followed by the same stipulation for indemnity in the treaty which closed that war, which was contained in the treaty which closed the war of the revolution; and attended by the same refusal to comply with it. it was not until after twelve years of further negotiation, and under the administration of mr. john quincy adams, and under the arbitrament of the emperor alexander, of russia, that indemnity for these deported slaves of was received. [ ] this was the first instance of any heated debate in answering an address from washington. it became a party discussion on some points, especially in relation to what was said of the democratic societies. marshall says of it: "a very eloquent and animated debate ensued, which terminated in the committee of the whole by striking out the words, "self-created societies"-- voting for, and against expunging them." the question was renewed in the house; and the chairman of the committee being opposed in sentiment to the speaker, who was now placed in the chair, the majority was precisely changed, and the words were reinstated. this was a victory for the administration, but soon lost, the next being in favor of the opposition. [ ] he resigned accordingly, no further investigation being moved with respect to him. recording the event, marshall says: "seldom has any minister excited in a higher, or more extensive degree than general hamilton, the opposite passions of love and hate. his talents were of a grade too exalted not to receive from all the tribute of profound respect; and his integrity and honor as a man, not less than his official rectitude, though slandered at a distance, were admitted to be superior to reproach by those enemies who knew him." [ ] a celebrated painter who died in . speaking of this artist, henry the eighth once said, "out of seven ploughmen i can make seven lords, but out of seven lords i cannot make even one holbein." [ ] col. timothy pickering, in place of gen. knox, resigned. [ ] the distinction was invidious, and soon fell under the ban of public opinion; but the mode of making it was commendable, and freed the senators voting for the increase from the imputation of a personal motive. [ ] this was nominally a private petition, but in reality a question between the state of north carolina and the federal government in relation to their relative rights over indian lands within the chartered limits of the state. [ ] this was the first discussion with open doors, except on the contested election of mr. gallatin. [ ] this was the first formal opposition to the mode of answering the president's speech at the opening of the sessions of congress, though many members had from the first been repugnant to it as being too close an imitation of the british mode of opening the sessions of parliament by an address from the sovereign in person, an answer to it, and the presentation of the answer by the house in a body. [ ] description of the flag.--it is tricolor, made of the richest silk, and highly ornamented with allegorical paintings. in the middle, a cock is represented, the emblem of france, standing on a thunderbolt. at two corners, diagonally opposite, are represented two bombshells bursting; at the other two corners, other military emblems. round the whole is a rich border of oak leaves, alternately yellow and green; the first shaded with brown and heightened with gold; the latter shaded with black and relieved with silver; in this border are entwined warlike musical instruments. the edge is ornamented with a rich gold fringe. the staff is covered with black velvet, crowned with a golden pike, and enriched with the tricolor cravatte and a pair of tassels worked in gold, and the three national colors. the flag is to be deposited in the archives of the united states. [ ] counsel for the prisoner. [ ] of all the members who opposed this trading establishment from the commencement, mr. macon was the only one that remained in congress until it was abolished in . [ ] this motion, going to the destruction of the mint itself, brought up an incidental debate on the right of congress to withhold appropriations for the support of existing establishments--which is the only part of the debate on the bill which retains a surviving interest. [ ] this being the last year of washington's administration, it presents a proper occasion for seeing what the support of the government then cost, both as an inquiry pertinent in itself, and as furnishing a point of comparison for the future. this is shown in the introductory clause to the appropriations, stating, "that for defraying the expenditure of the civil list of the united states for the year , together with the incidental and contingent expenses of the several departments and officers thereof, there be appropriated a sum not exceeding $ , cents." the objects to which this expenditure went, were, . salary to president and vice president. . compensation to the members of congress, with all the incidental expenses of that body. . the federal judiciary, with all its contingent expenses. . the executive departments, with all their subordinate offices and expenses of every kind. . the mint establishment. . the light-house establishment. . north-western and south-western territorial governments; with a few other small objects. for each of these items a specific sum was appropriated, of which, the appropriations for congress were, for the pay of the members and all the officers and attendants, (estimated for a session of six months,) $ , ; and the expenses, fuel, stationery, printing, and all other contingencies of the two houses, were $ , . for diplomatic intercourse, $ , . [ ] and proved to be so in this case, though it required thirty years' experience to show it. when the system was brought to a close in , it was found that the whole capital was gone. [ ] this was the first attempt to pay members of congress as salaried officers. [ ] this resolution would seem to embody mr. madison's interpretation of the clause in the constitution which authorizes congress to establish post roads. [ ] this explanatory note was written by mr. gales, editor of the annals of congress, who has rendered a valuable service to the student of political history in bringing these two great debates, each by itself, into a single and connected form. they are the groundwork of high constitutional knowledge; and, whether for the intrinsic importance of their matter, the close acquaintance of the speakers with their subject, or as fine specimens of parliamentary debating, they stand forth as debates of the first class which our congressional history has afforded. marshall, in his history, says of them: "never had a greater display been made of argument, of eloquence, and of passion; and never had a subject been discussed in which all classes of their fellow-citizens took a deeper interest." the first debate related to the treaty-making power, and how far the house of representatives had the right to refuse assent to a treaty which required an appropriation of money, or which regulated commerce, or which required the exercise of any other power specifically granted to congress. the second applied to the execution of the commercial treaty of , with great britain; one party contending that the congress was bound to make the appropriation to carry it into effect--the other denying the obligation and claiming the right of a discretionary power. the two debates were upon kindred subjects, and before the house at the same time, yet kept distinct, in the discussion, neither sliding into the other, and one finished before the other began; such was the closeness with which members then adhered to the subject, even in committee of the whole, and which gave to these early debates of our congress so much point and power, and so much attraction to the hearer then and to the reader now. an abridgment can only present a part of these great debates, which cover above pages of the annals of congress; but the whole argument will be seen on both sides, as the pith and marrow of each main speech will be given. [ ] this course was long followed, no indian treaty being held except authorized by an act of congress, which was the legislative consent to the grants of money which such treaties usually contain, and for the payment of which an act of congress would be necessary. and in the two great cases of acquiring foreign territory, (louisiana and florida,) under presidents contemporary with the formation of the constitution, and which required large appropriations to carry them into effect, the consent of the legislative branch of the government was sought and obtained before the executive began to act--the law in both cases originating in the house of representatives as the proper initiatory branch when money was to be paid which the people would have to raise. [ ] thus the house, by a majority of , passed the call upon the president for the papers, and upon the declared ground of a _right_ to judge the treaty, as it contained a regulation of commerce, and also required an appropriation of money. president washington received the call in the sense in which it was made, and although he had no objection to furnishing the papers, and had laid them before the senate, (whence they became public,) yet he deemed it his duty to resist the claim of right asserted by the house, and therefore to refuse the papers--which he did in a closely reasoned message, an epitome of the arguments used in the house on that side. [ ] it is seen in this answer of president washington, that he holds the assent of the house to be unnecessary to the validity of any treaty whatever, which, of course, includes the class contended for by the house, but makes the question broader than the one presented by its limited claim. [ ] in this resolution the house specifies the class of treaties over which it claims a right of judgment, and limits it to those which involve a matter which has been specially granted to congress--as an appropriation of money, or the regulation of commerce. [ ] and thus the president and the house were completely at issue--the house having expressly asserted, by a majority of , a right to judge, not every treaty, or treaties generally, but those which involved the exercise of any power granted by the constitution to itself. trained in the school of this majority, the author of this abridgment, as often as the occasion required, has maintained the same right for the house; and especially in the case of the territorial purchase from mexico in . [ ] mr. hillhouse had submitted a resolution in favor of carrying the treaty into effect, and afterwards mr. maclay submitted one, declaring the contrary; and the question was, which should be taken up? mr. madison, as a skilful parliamentary tactician, preferred that of mr. hillhouse, as putting the burden of the affirmative upon the adversary, always an advantage in the debate, and, in an even vote, always decisive for the negative side. [ ] the following is the letter received by the committee appointed to inquire into the situation of the son of general lafayette: [translation.] "ramapagh, (new jersey,) march , . "sir: i have just received the honorable resolution which the merits of my father have procured for me. deign to express to the representatives of the people of america his gratitude--my youth forbids me yet to speak of mine. every day recalls to me what he taught me, at every period of his life, so full of vicissitudes, and what he has repeated in a letter, written from the depth of his prison. 'i am convinced (he says) that the goodness of the united states and the tenderness of my paternal friend will need nothing to excite them. "arrived in america some months since, i live in the country, in new jersey, occupied in the pursuits of my education. i have no wants; if i had felt any, i should have answered to the paternal solicitude of the president of the united states, either by confiding them to him, or by accepting his offers. i shall hereafter consider it a duty, to impart them to the house of representatives, which deigns to inquire into my situation. "i am as happy as a continual inquietude relative to the object of my first affections will permit. i have found benevolence wherever i have been known, and have often had the satisfaction of hearing those, who were ignorant of my connections, speak of their interest in the fate of my father, express their admiration of, and partake the gratitude i feel, for the generous dr. bollman, who has done so much to break his chains. "it is amid all these motives of emulation, that i shall continue my studies. every day more convinced of the duties which are imposed by the goodness of congress, and the names i have the honor to bear. "geo. washington motier lafayette. the hon. edward livingston, chairman," &c. [ ] this vote of the house to carry the treaty into effect, was no abandonment of the right it had asserted to judge its merits, and to grant or withhold the appropriation according to its discretion. the discussion sufficiently shows this, and that many members took care to save their votes from any misconstruction on this head. a sense of expediency, and not the force of obligation, carried the vote; and certainly the inducements to let the treaty stand were very great. marshall sums them up thus: "if congress refused to perform the treaty on the part of the united states, a compliance on the part of great britain could not be expected. the posts on the great lakes would still be occupied by british garrisons: no compensation would be made for american vessels illegally captured: the hostile dispositions which had been excited, would be restored with increased aggravation: and that these dispositions must infallibly lead to war, was implicitly believed." the amount to be appropriated was only $ , , a sum entirely insignificant, and only to be contested on account of the principle its appropriation would involve. yet the insignificance of the sum, and with all the inducements to let the treaty stand, and under such a president as washington, barely saved it from defeat! so jealous was the democratic party of that day of the rights of congress, and so determined was the house to remain master of the public purse. ninety thousand dollars was all the money at stake; but what has since been seen? an executive offering fifty millions for a slip of territory! and one hundred millions, and afterwards two hundred, for an island! actually negotiating a treaty of twenty millions, which the senate reduced to ten! and all, not only without the sanction, but without the knowledge of the legislative power. to admit that congress would be bound to appropriate such sums if the offers had ripened into treaty stipulations, would be to admit that the president, senate, and a foreign potentate were masters of the appropriating power; and, of course, of the taxing and borrowing power, and of all the means by which money was to be raised. even a discretionary power over the appropriation, after the treaty has been made, is but a slight defence for the treasury, there being always in congress, as in all public bodies, men to yield to circumstances,--good easy men to be persuaded; timid men to be scared; venal men to be purchased. and out of these classes enough are usually found to turn the scale, when upright men divide upon a large measure. the only safe way is that of consultation beforehand, as practised by washington in the early part of his administration, and by the presidents under whom louisiana, florida, and california were acquired. [ ] the claim was renewed continually, and fruitlessly, until the year , when it was allowed, and the horse paid for according to his certificated specie value at the time he was taken in the year --$ , . [ ] up to this time and afterwards, until the year , there was no naval department, or secretary of the navy, and the marine, as well as the land force, was under the charge of the secretary of war--which accounts for the appropriations of the two branches of the service appearing in the same bill. [ ] the whole sum appropriated for the military and naval establishments of the year, was, $ , , --the strength of the army being men, and the debate is given as an instance of the closeness with which appropriations were scrutinized in the early ages of the government, and also as showing the expense of maintaining troops in the north-west--then as far off (time and cost considered) as our pacific possessions now are. our legal heritage king aethelbert - king george iii a.d. - by s. a. reilly, attorney e. delaware place chicago, illinois - s.a.reilly@att.net th edition copyright (c) preface this was written to appreciate what laws have been in existence for a long time and therefore have proven their success in maintaining a stable society. its purpose is also to see the historical context in which our legal doctrines developed. it includes the inception of the common law system, which was praised because it made law which was not handed down by an absolutist king; the origin of the jury system; the meaning of the magna carta provisions in their historical context; and the emergence of attorneys. this book is a primer. one may read it without prior knowledge of history or law, although it will be more meaningful to attorneys than to others. it can serve as an introduction on which to base further reading in english legal history. it defines terms unique to english legal history. however, the meaning of some terms in king aethelbert's code in chapter are unknown or inexact. in the table of contents, the title of each chapter denotes an important legal development in the given time period for that chapter. each chapter is divided into three sections: the times, the law, and judicial procedure. the times section sets a background and context in which to better understand the law of that period. the usual subject matter of history such as battles, wars, royal intrigues, periods of corruption, and international relations are omitted as not helping to understand the process of civilization and development of the law. standard practices are described, but there are often variations with locality. also, change did not come abruptly, but with vacillations, e.g. the change from pagan to christian belief and the change to allowance of loans for interest. the scientific revolution was accepted only slowly. there were often many attempts made for change before it actually occurred, e.g. gaining parliamentary power over the king's privileges, such as taxation. the law section describes the law governing the behavior and conduct of the populace. it includes law of that time which is the same, similar, or a building block to the law of today. in earlier times this is both statutory law and the common law of the courts. the magna carta, which is quoted in chapter , is the first statute of england and is listed first in the "statutes of the realm" and the "statutes at large". the law sections of chapters - mainly quote or paraphrase most of these statutes. excluded are statutes which do not help us understand the development of our law, such as statutes governing wales after its conquest and statutes on succession rights to the throne. the judicial procedure section describes the process of applying the law and trying cases, and jurisdictions. it also contains some examples of cases. for easy comparison, amounts of money expressed in pounds or marks [danish denomination] have often been converted to the smaller denominations of shillings and pence. there are twenty shillings in a pound. a mark in silver is two-thirds of a pound. shillings are abbreviated: "s." there are twelve pennies or pence in a norman shilling. pence are abbreviated "d." six shillings and two pence is denoted s. d. a scaett was a coin of silver and copper of lesser denomination than a shilling. the sources and reference books from which information was obtained are listed in a bibliography instead of being contained in tedious footnotes. there is no index to pages because the electronic text will print out its pages differently on different computers with different computer settings. instead, a word search may be done on the electronic text. dedication and acknowledgements a vassar college faculty member once dedicated her book to her students, but for whom it would have been written much earlier. this book "our legal heritage" is dedicated to the faculty of vassar college, without whom it would never have been written. much appreciation goes to professor lacey baldwin smith of northwestern university's history department and to professor james curtin of loyola law school for their review and comments on this book: the tudor and stuart periods: chapters - , and the medieval period: chapters - , respectively. table of contents chapters: . tort law as the first written law: to . oaths and perjury: - . marriage law: - . martial "law": - . criminal law and prosecution: - . common law for all freemen: - . magna carta: the first statute: - . land law: - . legislating the economy: - . equity from chancery court: - . use-trust of land: - . wills and testaments of lands and goods: - . . consideration and contract law: - . welfare for the poor: - . independence of the courts: - . freedom of religion: - . habeas corpus: - . service of process instead of arrest: - . epilogue: - appendix: sovereigns of england bibliography - - - chapter - - - - the times: before a.d. - the settlement of england goes back thousands of years. at first, people hunted and gathered their food. they wore animal skins over their bodies for warmth and around their feet for protection when walking. these skins were sewn together with bone needles and threads made from animal sinews. they carried small items by hooking them onto their belts. they used bone and stone tools, e.g. for preparing skins. their uncombed hair was held by thistlethorns, animal spines, or straight bone hair pins. they wore conical hats of bound rush and lived in rush shelters. early clans, headed by kings, lived in huts on top of hills or other high places and fortified by circular or contour earth ditches and banks behind which they could gather for protection. they were probably dug with antler picks and wood spades. the people lived in rectangular huts with four wood posts supporting a roof. the walls were made of saplings, and a mixture of mud and straw. cooking was in a clay oven inside or over an open fire on the outside. water was carried in animal skins or leather pouches from springs lower on the hill up to the settlement. forests abounded with wolves, bears, deer, wild boars, and wild cattle. they could more easily be seen from the hill tops. pathways extended through this camp of huts and for many miles beyond. for wives, men married women of their clan or bought or captured other women, perhaps with the help of a best man. they carried their unwilling wives over the thresholds of their huts, which were sometimes in places kept secret from her family. the first month of marriage was called the honeymoon because the couple was given mead, a drink with fermented honey and herbs, for the first month of their marriage. a wife wore a gold wedding band on the ring finger of her left hand to show that she was married. women usually stayed at home caring for children, preparing meals, and making baskets. they also made wool felt and spun and wove wool into a coarse cloth. flax was grown and woven into a coarse linen cloth. spinning the strands into one continuous thread was done on a stick, which the woman could carry about and spin at anytime when her hands were free. the weaving was done on an upright or warp-weighted loom. people of means draped the cloth around their bodies and fastened it with a metal brooch inlayed with gold, gems, and shell, which were glued on with glue that was obtained from melting animal hooves. people drank from hollowed- out animal horns, which they could carry from belts. they could tie things with rawhide strips or rope braids they made. kings drank from animal horns decorated with gold or from cups of amber, shale, or pure gold. men and women wore pendants and necklaces of colorful stones, shells, amber beads, bones, and deer teeth. they skinned and cut animals with hand-axes and knives made of flint dug up from pits and formed by hitting flakes off. the speared fish with barbed bone prongs or wrapped bait around a flint, bone, or shell fish hook. on the coast, they made bone harpoons for deep-sea fish. the flint axe was used to shape wood and bone and was just strong enough to fell a tree, although the process was very slow. the king, who was tall and strong, led his men in hunting groups to kill deer and other wild animals in the forests and to fish in the streams. some men brought their hunting dogs on leashes to follow scent trails to the animal. the men threw stones and spears with flint points at the animals. they used wood clubs to beat them, at the same time using wood shields to protect their bodies. they watched the phases of the moon and learned to predict when it would be full and give the most light for night hunting. this began the concept of a month. circles of stone like stonehenge were built with alignments to paths of the moon. if hunting groups from two clans tried to follow the same deer, there might be a fight between the clans or a blood feud. after the battle, the clan would bring back its dead and wounded. a priest officiated over a funeral for a dead man. his wife would often also go on the funeral pyre with him. the priest also officiated over sacrifices of humans, who were usually offenders found guilty of transgressions. sacrifices were usually made in time of war or pestilence, and usually before the winter made food scarce. the clan ate deer that had been cooked on a spit over a fire, and fruits and vegetables which had been gathered by the women. they drank water from springs. in the spring, food was plentiful. there were eggs of different colors in nests and many hare to eat. the goddess easter was celebrated at this time. after this hunting and gathering era, there was farming and domestication of animals such as horses, pigs, sheep, goats, chicken, and cattle. of these, the pig was the most important meat supply, being killed and salted for winter use. next in importance were the cattle. sheep were kept primarily for their wool. flocks and herds were taken to pastures. the male cattle, with wood yokes, pulled ploughs in the fields of barley and wheat. the female goat and cow provided milk, butter, and cheese. the chickens provided eggs. the hoe, spade, and grinding stone were used. thread was spun with a hand-held spindle which one hand held while the other hand alternately formed the thread from a mass and then wound it around the spindle. a coarse cloth was woven and worn as a tunic which had been cut from the cloth. kings wore tunics decorated with sheet gold. decorated pottery was made from clay and used to hold liquids and for food preparation and consumption. during the period of "lent" [from the word "lencten", which means spring], it was forbidden to eat any meat or fish. this was the season in which many animals were born and grew to maturity. wood carts with four wheels were used to transport produce and manure. horses were used for transportation of people or goods. wood dug-out boats and paddles were used to fish on rivers or on the seacoast. clans had settlements near rivers. each settlement had a meadow, for the mowing of hay, and a simple mill, with round timber huts, covered with branches or thatch or turf supported by a ring of posts. inside was a hearth with smoke going up through a hole in the roof, and a cauldron for cooking food. there was an upright loom in the darkness. the floor was swept clean. at the door were spears or bags of slingstones ready for immediate use. the king lived in the largest hut. gullies outside carried off excess water. each hut had a garden for fruit and vegetables. a goat or cow might be tied out of reach of the garden. there was a fence or hedge surrounding and protecting the garden area and dwelling. buckets and cauldrons which had originated from the mediterranean were used. querns with the top circular stone turned by hand over the bottom stone were used for grinding grain. there were ovens to dry and roast grain. grain was first eaten as a porridge or cereal. there were square wood graneries on stilts and wood racks on which to dry hay. grain was stored in concealed pits in the earth which were lined with drystone or basketwork or clay and made airtight by sealing with clay or dung. old pits were converted into waste dumps, burials, or latrines. outside the fence were an acre or two of fields of wheat and barley, and sometimes oats and rye. wheat and rye were sown in the fall, and oats and barley in the spring. sowing was by men or two oxen drawing a simple scratch plow. the crops were all harvested in the summer. in this two-field system, land was held by peasants in units designed to support a single extended family. these fields were usually enclosed with a hedge to keep animals from eating the crop and to define the territory of the settlement from that of its neighbors. flax was grown and made into linen cloth. beyond the fields were pastures for cattle and sheep grazing. there was often an area for beehives. this was subsistence level farming. pottery was given symmetry when formed with use of a wheel and heated in increasingly hot kilns. from kilns used for pottery, it was noticed that lumps of gold or copper ore within would melt and assume the shape of what they had been resting on. these were the first metals, and could be beaten into various shapes, such as ornaments. then the liquid ore was poured into moulds carved out of stones to make axes and daggers, which were reheated and hammered to become strong. copper-tipped drills, chisels, punches and awls were also made. the bodies of deceased were buried far away from any village in wood coffins, except for kings, who were placed in large stone coffins after being wrapped in linen. buried with them were a few personal items, such as copper daggers, flat copper axes, and awls [small pointed tool for piercing holes in leather, wood, or other soft materials.]. the deceased was buried in a coffin with a stone on top deep in the earth to keep the spirit of the dead from coming out to haunt the living. it was learned that tin added to the copper made a stronger metal: bronze. stone hammers, and bronze and iron tools, were used to make cooking pots, weapons, breast plates, and horse bits, which were formed from moulds and/or forged by bronze smiths and blacksmiths from iron extracted from iron ore heated in bowl- shaped hearths. typically one man operated the bellows to keep the fire hot while another did the hammering. bronze was made into sickles for harvesting, razors for shaving, tweezers, straight hair pins, safety pins for clothes, armlets, neck-rings, and mirrors. weapons included bows and arrows, flint and copper daggers, bronze swords and spears, stone axes, and shields of wood with bronze mountings. the bows and arrows probably evolved from spear throwing rods. kings in body armor fought with chariots drawn by two horses. the horse harnesses had bronze fittings. the chariots had wood wheels, later with iron rims. when bronze came into use, there was a demand for its constituent parts: copper and tin, which were traded by rafts on waterways and the sea. when iron came into use, there were wrought iron axes, saws, adzes [ax with curved blade used to dress wood], files, ploughshares, harrows [set of spikes to break clods of earth on plowed land and also to cover seed when sewn], scythes, billhooks [thick knife with hooked point used to prune shrubs], and spits for hearths. lead was mined. there was some glassmaking of beads. wrought iron bars were used as currency. hillforts now had wooden palisades on top of their banks to protect the enclosed farmsteads and villages from stock wandering off or being taken by rustlers, and from attacks by wild animals or other people. later a rampart was added from which sentries could patrol. these were supported by timber and/or stone structures. timbers were probably transported by carts or dragged by oxen. at the entrances were several openings only one of which really allowed entry. the others went between banks into dead ends and served as traps in which to kill the enemy from above. gates were of wood, some hung from hinges on posts which could be locked. later guard chambers were added, some with space for hearths and beds. sometimes further concentric circles of banks and ditches, and perhaps a second rampart, were added around these forts. they could reach to acres. the ramparts are sufficiently widely spaced to make sling-shotting out from them highly effective, but to minimize the dangers from sling-shotting from without. the additional banks and ditches could be used to create cattle corridors or to protect against spear-thrown firebrands. however, few forts had springs of water within them, indicating that attacks on them were probably expected to be short. attacks usually began with warriors bristling with weapons and blowing war trumpets shouting insults to the foe, while their kings dashed about in chariots. sometimes champions from each side fought in single combat. the celts took the heads of those they killed to hang from their belts or place on wood spikes at the gates. prisoners, including women and children, might become slaves. kings sometimes lived in separate palisades where they kept their horses and chariots. circles of big stones like stonehenge were rebuilt so that the sun's position with respect to the stones would indicate the day of longest sunlight and the day of shortest sunlight. between these days there was an optimum time to harvest the crops before fall, when plants dried up and leaves fell from the trees. the winter solstice, when the days began to get longer was cause for celebration. in the next season, there was an optimum time to plant seeds so they could spring up from the ground as new growth. so farming gave rise to the concept of a year. certain changes of the year were celebrated, such as easter, named for the goddess of the dawn, which occurred in the east (after lent); may day celebrating the revival of life; lammas around july, when the wheat crop was ready for harvesting; and on october the celtic eve of samhain, when the spirits of the dead came back to visit homes and demand food or else cast an evil spell on the refusing homes; and at which masked and costumed inhabitants representing the souls of the dead paraded to the outskirts of the settlements to lead the ghosts away from their homes; and at which animals and humans, who might be deemed to be possessed by spirits, were sacrificed or killed perhaps as examples, in huge bonfires [bonefires] as those assembled looked out for spirits and evil beings. there was an agricultural revolution from the two-field to the three-field system, in which there were three large fields for the heavy and fertile land. each field was divided into long and narrow strips. each strip represented a day's work with the plough. one field had wheat, or perhaps rye, another had barley, oats, beans, or peas, and the third was fallow. these were rotated yearly. there was a newly invented plough that was heavy and made of wood and later had an attached iron blade. the plough had a mould-board which caught the soil stirred by the plough blade and threw it into a ridge alongside the furrow dug by the plough blade. this plough was too heavy for two oxen and was pulled by a team of about eight to ten oxen. each ox was owned by a different man as was the plough, because no one peasant could afford the complete set. each freeman was allotted certain strips in each field to bear crops. his strips were far from each other, which insured some very fertile and some only fair soil, and some land near his village dwelling and some far away. these strips he cultivated, sowed with seed, and harvested for himself and his family. after the harvest, they reverted to common ownership for grazing by pigs, sheep, and geese. as soon as haymaking was over, the meadows became common grazingland for horses, cows, and oxen. not just any inhabitant, but usually only those who owned a piece of land in the parish were entitled to graze their animals on the common land, and each owner had this right of pasture for a definite number of animals. the faster horse replaced the ox as the primary work animal. other farm implements were: coulters, which gave free passage to the plough by cutting weeds and turf, picks, spades and shovels, reaping hooks and scythes, and sledge hammers and anvils. strips of land for agriculture were added from waste land as the community grew. waste lands were moors bristling with brushwood, or gorse, heather and wanton weeds, reed-coated marshes, quaking peat-bogs, or woods grown haphazard on sand or rock. with iron axes, forests could be cleared to provide more arable land. some villages had a smith, a wheelwright, and a cooper. there were villages which had one or two market days in each week. cattle, sheep, pigs, poultry, calves, and hare were sold there. london was a town on the thames river under the protection of the celtic river god lud: lud's town. it's huts were probably built over the water, as was celtic custom. it was a port for foreign trade. near the town was ludhill. flint workers mined with deer antler picks and ox shoulder blade shovels for flint to grind into axes, spearheads, and arrowheads. mine shafts were up to thirty feet deep and necessitated the use of chalk lamps fuelled by animal fat with wicks of moss. the flint was hauled up in baskets. common men and women were now buried in tombs within memorial burial mounds of earth with stone entrances and interior chambers. a man's weapons and shield were buried with him and a woman's spindle and weaving baton, and perhaps beads or pottery with her. at times, mounds of earth would simply be covered over piles of corpses and ashes in urns. in these mass graves, some corpses had spear holes or sword cuts, indicating death by violence. the druid priests, the learned class of the celts, taught the celts to believe in reincarnation of the soul after death of one body into another body. they also threw prized possessions into lakes and rivers as sacrifices to water gods. they placed images of gods and goddesses in shrines, which were sometimes large enough to be temples. with the ability to grow food and the acquisition of land by conquest by invading groups, the population grew. there were different classes of men. the freemen were eorls [noble freemen] or ceorls [ordinary free farmers]. slaves were not free. freemen had long hair and beards. slaves' hair was shorn from their heads so that they were bald. slaves were chained and often traded. prisoners taken in battle, especially native britons taken by invading groups, became slaves. a slave who was captured or purchased was a "theow". an "esne" was a slave who worked for hire. a "weallas" was a welsh slave. criminals became slaves of the person wronged or of the king. sometimes a father pressed by need sold his children or his wife into bondage. debtors, who increased in number during famine, which occurred regularly, became slaves by giving up the freeman's sword and spear, picking up a slave's mattock [pick ax for the soils], and placing their head within a lord's or lady's hands. they were called wite- theows. the original meaning of the word lord was "loaf-giver". children with a slave parent were slaves. the slaves lived in huts around the homes of big landholders, which were made of logs and consisted on one large room or hall. an open hearth was in the middle of the earthen floor of the hall, which was strewn with rushes. there was a hole in the roof to let out the smoke. here the landholder and his men would eat meat, bread, salt, hot spiced ale, and mead while listening to minstrels sing about the heroic deeds of their ancestors. richer men drank wine. there were festivals which lasted several days, in which warriors feasted, drank, gambled, boasted, and slept where they fell. physical strength and endurance in adversity were admired traits. slaves often were used as grain grinders, ploughmen, sowers, haywards, woodwards, shepherds, goatherds, swineherds, oxherds, cowherds, dairymaids, and barnmen. slaves had no legal rights. a lord could kill his slave at will. a wrong done to a slave was regarded as done to his owner. if a person killed another man's slave, he had to compensate him with the slave's purchase price. the slave owner had to answer for the offences of his slaves against others, as for the mischief done by his cattle. since a slave had no property, he could not be fined for crimes, but was whipped, mutilated, or killed. during famine, acorns, beans, peas, and even bark were ground down to supplement flour when grain stocks grew low. people scoured the hedgerows for herbs, roots, nettles, and wild grasses, which were usually left for the pigs. sometimes people were driven to infanticide or group suicide by jumping together off a cliff or into the water. several large kingdoms came to replace the many small ones. the people were worshipping pagan gods when st. augustine came to england in a.d. to christianize them. king aethelbert of kent [much later a county] and his wife, who had been raised christian on the continent, met him when he arrived. the king gave him land where there were ruins of an old city. augustine used stones from the ruins to build a church which was later called canterbury. he also built the first st. paul's church in london. aethelbert and his men who fought with him and ate and lived in his household [gesiths] became christian. a succession of princesses went out from kent to marry other saxon kings and convert them to christianity. augustine knew how to write, but king aethelbert did not. the king announced his laws at meetings of his people and his eorls would decide the punishments. there was a fine of s. for disregarding a command of the king. he and augustine decided to write down some of these laws, which now included the king's new law concerning the church. these laws concern personal injury, killing, theft, burglary, marriage, adultery, and inheritance. the blood feud's private revenge for killing had been replaced by payment of compensation to the dead man's kindred. one paid a man's "wergeld" [worth] to his kindred for causing his wrongful death. the wergeld [wer] of a king was an unpayable amount of about s., of an aetheling [a king-worthy man of the extended royal family] was s., of an eorl, s., of a ceorl, s., of a laet [agricultural worker in kent, which class was between free and slave], - s., and of a slave nothing. at this time a shilling could buy a cow in kent or a sheep elsewhere. if a ceorl killed an eorl, he paid three times as much as an eorl would have paid as murderer. the penalty for slander was tearing out of the tongue. if an aetheling was guilty of this offense, his tongue was worth five times that of a coerl, so he had to pay proportionately more to ransom it. the crimes of murder, treachery to one's own lord, arson, house breaking, and open theft, were punishable by death and forfeiture of all property. - the law - "these are the dooms [decrees] which king aethelberht established in the days of augustine . [theft of] the property of god and of the church [shall be compensated], twelve fold; a bishop's property, eleven fold; a priest's property, nine fold; a deacon's property, six fold; a cleric's property, three fold; church frith [breach of the peace of the church; right of sanctuary and protection given to those within its precincts], two fold [that of ordinary breach of the public peace]; m....frith [breach of the peace of a meeting place], two fold. . if the king calls his leod [his people] to him, and any one there do them evil, [let him compensate with] a two-fold bot [damages for the injury], and shillings to the king. . if the king drink at any one's home, and any one there do any lyswe [evil deed], let him make two-fold bot. . if a freeman steal from the king, let him repay nine fold. . if a man slay another in the king's tun [enclosed dwelling premises], let him make bot with shillings. . if any one slay a freeman, shillings to the king, as drihtin beah [payment to a lord in compensaton for killing his freeman]. . if the king's ambiht smith [smith or carpenter] or laad rine [man who walks before the king or guide or escort], slay a man, let him pay a half leod geld. . [offenses against anyone or anyplace under] the king's mund byrd [protection or patronage], shillings. . if a freeman steal from a freeman, let him make threefold bot; and let the king have the wite [fine] and all the chattels [necessary to pay the fine]. (chattels was a variant of "cattle".) . if a man lie with the king's maiden [female servant], let him pay a bot of shillings. . if she be a grinding slave, let him pay a bot of shillings. the third [class of servant] shillings. . let the king's fed esl [woman who serves him food or nurse] be paid for with shillings. . if a man slay another in an eorl's tun [premises], let [him] make bot with shillings. . if a man lie with an eorl's birele [female cupbearer], let him make bot with shillings. . [offenses against a person or place under] a ceorl's mund byrd [protection], shillings. . if a man lie with a ceorl's birele [female cupbearer], let him make bot with shillings; with a slave of the second [class], scaetts; with one of the third, scaetts. . if any one be the first to invade a man's tun [premises], let him make bot with shillings; let him who follows, with shillings; after, each, a shilling. . if a man furnish weapons to another where there is a quarrel, though no injury results, let him make bot with shillings. . if a weg reaf [highway robbery] be done [with weapons furnished by another], let him [the man who provided the weapons] make bot with shillings. . if the man be slain, let him [the man who provided the weapons] make bot with shillings. . if a [free] man slay another, let him make bot with a half leod geld [wergeld for manslaughter] of shillings. . if a man slay another, at the open grave let him pay shillings, and pay the whole leod within days. . if the slayer departs from the land, let his kindred pay a half leod. . if any one bind a freeman, let him make bot with shillings. . if any one slay a ceorl's hlaf aeta [loaf or bread eater; domestic or menial servant], let him make bot with shillings. . if [anyone] slay a laet of the highest class, let him pay shillings; of the second class, let him pay shillings; of the third class, let him pay shillings. . if a freeman commit edor breach [breaking through the fenced enclosure and forcibly entering a ceorl's dwelling], let him make bot with shillings. . if any one take property from a dwelling, let him pay a three- fold bot. . if a freeman goes with hostile intent through an edor [the fence enclosing a dwelling], let him make bot with shillings. . if [in so doing] a man slay another, let him pay with his own money, and with any sound property whatever. . if a freeman lie with a freeman's wife, let him pay for it with his wer geld, and obtain another wife with his own money, and bring her to the other [man's dwelling]. . if any one thrusts through the riht ham scyld [legal means of protecting one's home], let him adequately compensate. . if there be feax fang [seizing someone by the hair], let there be sceatts for bot. . if there be an exposure of the bone, let bot be made with shillings. . if there be an injury to the bone, let bot be made with shillings. . if the outer hion [outer membrane covering the brain] be broken, let bot be made with shillings. . if it be both [outer and inner membranes covering the brain], let bot be made with shillings. . if a shoulder be lamed, let bot be made with shillings. . if an ear be struck off, let bot be made with shillings. . if the other ear hear not, let bot be made with shillings. . if an ear be pierced, let bot be made with shillings. . if an ear be mutilated, let bot be made with shillings. . if an eye be [struck] out, let bot be made with shillings. . if the mouth or an eye be injured, let bot be made with shillings. . if the nose be pierced, let bot be made with shillings. . if it be one ala, let bot be made with shillings. . if both be pierced, let bot be made with shillings. . if the nose be otherwise mutilated, for each [cut, let] bot be made with shillings. . if it be pierced, let bot be made with shillings. . let him who breaks the jaw bone pay for it with shillings. . for each of the four front teeth, shillings; for the tooth which stands next to them shillings; for that which stands next to that, shillings; and then afterwards, for each a shilling. . if the speech be injured, shillings. if the collar bone be broken, let bot be made with shillings. . let him who stabs [another] through an arm, make bot with shillings. if an arm be broken, let him make bot with shillings. . if a thumb be struck off, shillings. if a thumb nail be off, let bot be made with shillings. if the shooting [fore] finger be struck off, let bot be made with shillings. if the middle finger be struck off, let bot be made with shillings. if the gold [ring]finger be struck off, let bot be made with shillings. if the little finger be struck off, let bot be made with shillings. . for every nail, a shilling. . for the smallest disfigurement of the face, shillings; and for the greater, shillings. . if any one strike another with his fist on the nose, shillings. . if there be a bruise [on the nose], a shilling; if he receive a right hand bruise [from protecting his face with his arm], let him [the striker] pay a shilling. . if the bruise [on the arm] be black in a part not covered by the clothes, let bot be made with scaetts. . if it be covered by the clothes, let bot for each be made with scaetts. . if the belly be wounded, let bot be made with shillings; if it be pierced through, let bot be made with shillings. . if any one be gegemed [pregnant], let bot be made with shillings. . if any one be cear wund [badly wounded], let bot be made with shillings. . if any one destroy [another's] organ of generation [penis], let him pay him with leod gelds: if he pierce it through, let him make bot with shillings; if it be pierced within, let him make bot with shillings. . if a thigh be broken, let bot be made with shillings; if the man become halt [lame], then friends must arbitrate. . if a rib be broken, let bot be made with shillings. . if [the skin of] a thigh be pierced through, for each stab shillings; if [the wound be] above an inch [deep], a shilling; for two inches, ; above three, shillings. . if a sinew be wounded, let bot be made with shillings. . if a foot be cut off, let shillings be paid. . if a great toe be cut off, let shillings be paid. . for each of the other toes, let one half that for the corresponding finger be paid. . if the nail of a great toe be cut off, scaetts for bot; for each of the others, make bot with scaetts. . if a freewoman loc bore [with long hair] commit any leswe [evil deed], let her make a bot of shillings. . let maiden bot [compensation for injury to an unmarried woman] be as that of a freeman. . for [breach of] the mund [protection] of a widow of the best class, of an eorl's degree, let the bot be shillings; of the second, shillings; of the third, shillings; of the fourth, shillings. . if a man carry off a widow not under his own protection by right, let the mund be twofold. . if a man buy a maiden with cattle, let the bargain stand, if it be without fraud; but if there be fraud, let him bring her home again, and let his property be restored to him. . if she bear a live child, she shall have half the property, if the husband die first. . if she wish to go away with her children, she shall have half the property. . if the husband wish to keep them [the children], [she shall have the same portion] as one child. . if she bear no child, her paternal kindred shall have the fioh [her money and chattels] and the morgen gyfe [morning gift: a gift made to the bride by her husband on the morning following the consummation of the marriage]. . if a man carry off a maiden by force, let him pay shillings to the owner, and afterwards buy [the object of] his will from the owner. . if she be betrothed to another man in money [at a bride price], let him [who carried her off] make bot with shillings. . if she become gaengang [pregnant], shillings; and shillings to the king. . if a man lie with an esne's wife, her husband still living, let him make twofold bot. . if one esne slay another unoffending, let him pay for him at his full worth. . if an esne's eye and foot be struck out or off, let him be paid for at his full worth. . if any one bind another man's esne, let him make bot with shillings. . let [compensation for] weg reaf [highway robbery] of a theow [slave] be shillings. . if a theow steal, let him make twofold bot [twice the value of the stolen goods]." - judicial procedure - the king and his freemen would hear and decide cases of wrongful behavior such as breach of the peace. punishment would be given to the offender by the community. there were occasional meetings of "hundreds", which were households, to settle wide-spread disputes. the chief officer was "hundreder" or "constable". he was responsible for keeping the peace of the hundred. the druid priests decided all disputes of the celts. - - - chapter - - - - the times: - - the country was inhabited by anglo-saxons. the french called it "angleterre", which means the angle or end of the earth. it was called "angle land", which later became "england". a community was usually an extended family. its members lived a village in which a stone church was the most prominent building. they lived in one-room huts with walls and roofs made of wood, mud, and straw. hangings covered the cracks in the walls to keep the wind out. smoke from a fire in the middle of the room filtered out of cracks in the roof. grain was ground at home by rotating by hand one stone disk on another stone disk. some villages had a mill powered by the flow of water or by horses. all freeholders had the duty of watch [at night] and ward [during the day], of following the hue and cry to chase an offender, and of taking the oath of peace. these three duties were constant until . farmland surrounded the villages and was farmed by the community as a whole under the direction of a lord. there was silver, copper, iron, tin, gold, and various types of stones from remote lead mines and quarries in the nation. silver pennies replaced the smaller scaetts. freemen paid "scot" and bore "lot" according to their means for local purposes. everyone in the village went to church on sunday and brought gifts such as grain to the priest. later, contributions in the form of money became customary, and then expected. they were called "tithes" and were spent for church repair, the clergy, and poor and needy laborers. local custom determined the amount. there was also church-scot: a payment to the clergy in lieu of the first fruits of the land. the priest was the chaplain of a landlord and his parish was coextensive with that landlord's holding and could include one to several villages. the priest and other men who helped him, lived in the church building. some churches had lead roofs and iron hinges, latches, and locks on their doors. the land underneath had been given to the church by former kings and persons who wanted the church to say prayers to help their souls go from purgatory to heaven and who also selected the first priest. the priest conducted christianized easter ceremonies in the spring and (christ's mass) ceremonies in winter in place of the pagan yuletide festivities. burning incense took the place of pagan burnt animal offerings, which were accompanied by incense to disguise the odor of burning flesh. holy water replaced haunted wells and streams. christian incantations replaced sorcerer's spells. nuns assisted priests in celebrating mass and administering the sacraments. they alone consecrated new nuns. vestry meetings were community meetings held for church purposes. the people said their prayers in english, and the priest conducted the services in english. a person joined his hands in prayer as if to offer them for binding together in submission. the church baptized babies and officiated or gave blessings at marriage ceremonies. it also said prayers for the dying, gave them funerals, and buried them. there were burial service fees, candle dues, and plough alms. a piece of stone with the dead person's name marked his grave. it was thought that putting the name on the grave would assist identification of that person for being taken to heaven. the church heard the last wish or will of the person dying concerning who he wanted to have his property. the church taught that it was not necessary to bury possessions with the deceased. the church taught boys and girls. every man carried a horn slung on his shoulder as he went about his work so that he could at once send out a warning to his fellow villagers or call them in chasing a thief or other offender. the forests were full of outlaws, so strangers who did not blow a horn to announce themselves were presumed to be fugitive offenders who could be shot on sight. an eorl could call upon the ceorl farmers for about forty days to fight off an invading group. there were several kingdoms, whose boundaries kept changing due to warfare, which was a sin according to the church. they were each governed by a king and witan of wise men who met at a witanegemot, which was usually held three times a year, mostly on great church festivals and at the end of the harvest. the king and witan chose the witan's members of bishops, eorldormen, and thegns [landholding farmers]. the king and hereditary claims played a major part in the selection of the eorldormen, who were the highest military leaders and often of the royal family. they were also chief magistrates of large jurisdictional areas of land. the witan included officers of the king's household and perhaps other of his retinue. there was little distinction then between his gesith, fighting men, guards, household companions, dependents, and servants. the king was sometimes accompanied by his wife and sons at the witanagemot. a king was selected by the witan according to his worthiness, usually from among the royal family, and could be deposed by it. the witan and king decided on laws, taxes, and transfers of land. they made determinations of war and peace and directed the army and the fleet. the king wore a crown or royal helmet. he extended certain protections by the king's peace. he could erect castles and bridges and could provide a special protection to strangers. a king had not only a wergeld to be paid to his family if he were killed, but a "cynebot" of equal amount that would be paid to his kingdom's people. a king's household had a chamberlain for the royal bedchamber, a marshall to oversee the horses and military equipment, a steward as head of household, and a cupbearer. the king had income from fines for breach of his peace; fines and forfeitures from courts dealing with criminal and civil cases; salvage from ship wrecks; treasure trove [assets hidden or buried in times of war]; treasures of the earht such as gold and silver; mines; saltworks; tolls and other dues of markets, ports, and the routes by land and by river generally; heriot from heirs of his special dependents for possession of land (usually in kind, principally in horses and weapons). he also had rights of purveyance [hospitality and maintenance when traveling]. the king had private lands, which he could dispose of by his will. he also had crown lands, which belonged to his office and could not be alienated without consent of the witan. crown lands often included palaces and their appendant farms, and burhs. it was a queen's duty to run the royal estate. also, a queen could possess, manage, and dispose of lands in her name. violent queens waged wars. kingdoms were often allied by marriage between their royal families. there were also royal marriages to royalty on the continent. the houses of the wealthy had ornamented silk hangings on the walls. some had fine white ox horn shaved so thin they were transparent for windows. brightly colored drapery, often purple, and fly nets surrounded their beds, which were covered with the fur of animals. they slept in bed clothes on pillows stuffed with straw. tables plated with silver and gems held silver candlesticks, gold and silver goblets and cups, and lamps of gold, silver, or glass. they used silver mirrors and silver writing pens. there were covered seats, benches, and footstools with the head and feet of animals at their extremities. they ate from a table covered with a cloth. servants brought in food on spits, from which they ate. food was boiled, broiled, or baked. the wealthy ate wheat bread and others ate barley bread. ale made from barley was passed around in a cup. mead made from honey was also drunk. men wore long-sleeved wool and linen garments reaching almost to the knee, around which they wore a belt tied in a knot. men often wore a gold ring on the fourth finger of the right hand. leather shoes were fastened with leather thongs around the ankle. their hair was parted in the middle and combed down each side in waving ringlets. the beard was parted in the middle of the chin, so that it ended in two points. the clergy did not wear beards. great men wore gold-embroidered clothes, gilt buckles and brooches, and drank from drinking horns mounted in silver gilt or in gold. well- to-do women wore brightly colored robes with waist bands, headbands, necklaces, gem bracelets, and rings. their long hair was in ringlets and they put rouge on their cheeks. they had beads, pins, needles, tweezers of bronze, and workboxes of bronze, some highly ornamented. they were often doing needlework. silk was affordable only by the wealthy. most families kept a pig and pork was the primary meat. there were also sheep, goats, cows, deer, hare, and fowl. fowl was obtained by fowlers who trapped them. the inland waters yielded eels, salmon, and trout. in the fall, meat was salted to preserve it for winter meals. there were orchards growing figs, nuts, grapes, almonds, pears, and apples. also produced were beans, lentils, onions, eggs, cheese, and butter. pepper and cinnamon were imported. fishing from the sea yielded herrings, sturgeon, porpoise, oysters, crabs, and other fish. sometimes a whale was driven into an inlet by a group of boats. whale skins were used to make ropes. the roads were not much more than trails. they were often so narrow that two pack horses could hardly pass each other. the pack horses each carried two bales or two baskets slung over their backs, which balanced each other. the soft soil was compacted into a deep ditch which rains, floods, and tides, if near the sea, soon turned into a river. traveling a far distance was unsafe as there were robbers on the roads. traveling strangers were distrusted. it was usual to wash one's feet in a hot tub after traveling and to dry them with a rough wool cloth. there were superstitions about the content of dreams, the events of the moon, and the flights and voices of birds were often seen as signs or omens of future events. herbal mixtures were drunk for sickness and maladies. from the witch hazel plant was made a mild alcoholic astringent, which was probably used to clean cuts and sooth abraisons. in the peaceful latter part of the s, theodore, who had been a monk in rome, was appointed archbishop and visited all the island speaking about the right rule of life and ordaining bishops to oversee the priests. each kingdom was split up into dioceses each with one bishop. thereafter, bishops were selected by the king and his witan, usually after consulting the clergy and even the people of the diocese. the bishops came to be the most permanent element of society. they had their sees in villages or rural monasteries. the bishops came to have the same wergeld as an eorldorman: s., which was the price of about oxen. a priest had the wergeld as a landholding farmer [thegn], or s. the bishops spoke latin, but the priests of the local parishes spoke english. theodore was the first archbishop whom all the english church obeyed. he taught sacred and secular literature, the books of holy writ, ecclesiastical poetry, astronomy, arithmetic, and sacred music. theodore discouraged slavery by denying christian burial to the kidnapper and forbidding the sale of children over the age of seven. a slave became entitled to two loaves a day and to his holydays. a slave was allowed to buy his or his children's freedom. in , theodore started annual national ecclesiastical assemblies, for instance for the witnessing of important actions. the bishops, some abbots, the king, and the eorldormen were usually present. from them the people learned the benefit of common national action. there were two archbishops: one of canterbury in the south and one of york in the north. they governed the bishops and could meet with them to issue canons that would be equally valid all over the land. a bishop's house contained some clerks, priests, monks, and nun and was a retreat for the weary missionary and a school for the young. the bishop had a deacon who acted as a secretary and companion in travel, and sometimes as an interpreter. ink was made from the outer husks of walnuts steeped in vinegar. the learned ecclesiastical life flourished in monastic communities, in which both monks and nuns lived. hilda, a noble's daughter, became the first nun in northumbria and abbess of one of its monasteries. there she taught justice, piety, chastity, peace, and charity. several monks taught there later became bishops. kings and princes often asked her advice. many abbesses came to run monastic communities; they were from royal families. women, especially from royal families, fled to monasteries to obtain shelter from unwanted marriage or to avoid their husbands. kings and eorldormen retired to them. danish vikings made several invasions in the s for which a danegeld tax on land was assessed on everyone every ten to twenty years. the amount was determined by the witan and was typically s. per hide of land. (a hide was probably the amount of land which could support a family or household for a year or as much land as could be tilled annually by a single plow.) it was stored in a strong box under the king's bed. king alfred the great, who had lived for awhile in rome, unified the country to defeat the invaders. he established fortifications called "burhs", usually on hill tops or other strategic locations on the borders to control the main road and river routes into his realm. the burhs were seminal towns. they were typically walled enclosures with towers and an outer ditch and mound, instead of the hedge or fence enclosure of a tun. inside were several wooden thatched huts and a couple of churches, which were lit by earthen oil lamps. the populace met at burh-gemots. the land area protected by each burh became known as a "shire", which means a share of a larger whole. the shire or local landowners were responsible for repairing the burh fortifications. there were about thirty shires. alfred gathered together fighting men who were at his disposal, which included eorldormen with their hearthbands (retinues of men each of whom had chosen to swear to fight to the death for their eorldorman, and some of whom were of high rank), the king's thegns, shire thegns (local landholding farmers, who were required to bring fighting equipment such as swords, helmets, chainmail, and horses), and ordinary freemen, i.e. ceorls (who carried food, dug fortifications, and sometimes fought). since the king was compelled to call out the whole population to arms, the distinction between the king's thegns from other landholders disappeared. some great lords organized men under them, whom they provisioned. these vassals took a personal oath to their lord "on condition that he keep me as i am willing to deserve, and fulfill all that was agreed on when i became his man, and chose his will as mine." alfred had a small navy of longships with oars to fight the viking longships. alfred divided his army into two parts so that one half of the men were fighting while the other half was at home sowing and harvesting for those fighting. thus, any small-scale independent farming was supplanted by the open-field system, cultivation of common land, more large private estates headed by a lord, and a more stratified society in which the king and important families more powerful and the peasants more curtailed. the witan became mere witnesses. many free coerls of the older days became bonded. the village community tended to become a large private estate headed by a lord. but the lord does not have the power to encroach upon the rights of common that exist within the community. in , a treaty between alfred and the vikings divided the country along the war front and made the wergeld of every free farmer, whether english or viking, s. men of higher rank were given a wergeld of / marks of pure gold. a mark was probably a viking denomination and a mark of gold was equal to nine marks of silver in later times and probably in this time. the word "earl" replaced the word "eorldormen" and the word "thegn" replaced the word "aetheling" after the danish settlement. the ironed pleats of viking clothing indicated a high status of the wearer. the vikings brought combs and the practice of regular hair-combing to england. king alfred gave land with jurisdictional powers within its boundaries such as the following: "this is the bequest which king alfred make unequivocally to shaftesbury, to the praise of god and st. mary and all the saints of god, for the benefit of my soul, namely a hundred hides as they stand with their produce and their men, and my daughter aethelgifu to the convent along with the inheritance, since she took the veil on account of bad health; and the jurisdiction to the convent, which i myself possessed, namely obstruction and attacks on a man's house and breach of protection. and the estates which i have granted to the foundation are hides at donhead and compton, hides at handley and gussage hides at tarrant, hides at iwerve and hides at fontmell. the witnesses of this are edward my son and archbishop aethelred and bishop ealhferth and bishop aethelhead and earl wulfhere and earl eadwulf and earl cuthred and abbot tunberht and milred my thegn and aethelwulf and osric and brihtulf and cyma. if anyone alters this, he shall have the curse of god and st. mary and all the saints of god forever to all eternity. amen." sons usually succeeded their fathers on the same land as shown by this lifetime lease: "bishop denewulf and the community at winchester lease to alfred for his lifetime hides of land at alresford, in accordance with the lease which bishop tunbriht had granted to his parents and which had run out, on condition that he renders every year at the autumnal equinox three pounds as rent, and church dues, and the work connected with church dues; and when the need arises, his men shall be ready both for harvesting and hunting; and after his death the property shall pass undisputed to st. peter's. these are the signatures of the councilors and of the members of the community who gave their consent, namely ..." alfred invented a graduated candle with spaces indicating one hour of burning, which could be used as a clock. he used a ventilated cow's horn to put around the top of the candle to prevent its blowing out, and then devised a wooden lantern with a horn window. he described the world as like a yolk in the middle of an egg whose shell moves around it. this agreed with the position of ptolemy claudius of alexandria, who showed the curvature of the earth from north to south by observing that the polar star was higher in the north and lower in the south. that it was curved from east to west followed from the observation that two clocks placed one west and one east would record a different time for the same eclipse of the moon. alfred wrote poems on the worthiness of wisdom and knowledge in preference to material pleasures, pride, and fame, in dealing with life's sorrow and strife. his observations on human nature and his proverbs include: . as one sows, so will he mow. . every man's doom [judgment] returns to his door. . he who will not learn while young, will repent of it when old. . weal [prosperity] without wisdom is worthless. . though a man had acres sown with red gold, and the gold grew like grass, yet he is not a whit the worthier unless he gain friends for himself. . gold is but a stone unless a wise man has it. . it's hard to row against the sea flood; so it is against misfortune. . he who toils in his youth to win wealth, so that he may enjoy ease in his old age, has well bestowed his toil. . many a man loses his soul through silver. . wealth may pass away, but wisdom will remain, and no man may perish who has it for his comrade. . don't choose a wife for her beauty nor for wealth, but study her disposition. . many an apple is bright without and bitter within. . don't believe the man of many words. . with a few words a wise man can compass much. . make friends at market, and at church, with poor and with rich. . though one man wielded all the world, and all the joy that dwells therein, he could not therewith keep his life. . don't chide with a fool. . a fool's bolt is soon shot. . if you have a child, teach it men's manners while it is little. if you let him have his own will, he will cause you much sorrow when he comes of age. . he who spares the rod and lets a young child rule, shall rue it when the child grows old. . either drinking or not drinking is, with wisdom, good. . be not so mad as to tell your friend all your thoughts. . relatives often quarrel together. . the barkless dog bites ill. . be wise of word and wary of speech, then all shall love you. . we may outride, but not outwit, the old man. . if you and your friend fall out, then your enemy will know what your friend knew before. . don't choose a deceitful man as a friend, for he will do you harm. . the false one will betray you when you least expect it. . don't choose a scornful false friend, for he will steal your goods and deny the theft. . take to yourself a steadfast man who is wise in word and deed; he will prove a true friend in need. to restore education and religion, alfred disseminated the anglo- saxon chronicles; the venerable bede's ecclesiastical history of the english nation; the "consolidation of philosophy" by roman philosopher boethius, which related the use of adversity to develop the soul, and described the goodness of god and how the highest happiness comes from spiritual values and the soul, which are eternal, rather than from material or earthly pursuits, which are temporal; and pope gregory's pastoral care, which he had translated into english and was the fundamental book on the duty of a bishop, which included a duty to teach laymen; and orosius' history of the world, which he had translated into english. alfred's advice to pastors was to live as they had been taught from books and to teach this manner of life to others. to be avoided was pride, the mind's deception of seeking glory in the name of doing good works, and the corruption of high office. bede was england's first scholar, first theologian, and first historian. he wrote poetry, theological books, homilies, and textbooks on grammar, rhetoric [public speaking and debating], arithmetic, and astronomy. he adhered to the doctrine that death entered the world by the sin of adam, the first man. he began the practice of dating years from the birth of christ and believed that the earth was round. over the earth was a fiery spherical firmament. above this were the waters of the heavens. above this were the upper heavens, which contained the angels and was tempered with ice. he declared that comets portend downfalls of kingdoms, pestilence, war, winds, or heat. this reflected the church's view that a comet was a ball of fire flung from the right hand of an angry god as a warning to mankind, usually for disbelief. storms were begun by the devil. a famous poem, the oral legend of beowulf, a hero who led his men into adventures and performed great feats and fought monsters and dragons, was put into writing with a christian theme. in it, loyalty to one's lord is a paramount virtue. also available in writing was the story of king arthur's twelve victorious battles against the pagan saxons, authored by nennius. there were professional story tellers attached to great men. others wandered from court to court, receiving gifts for their story telling. men usually told oral legends of their own feats and those of their ancestors after supper. alfred had monasteries rebuilt with learned and moral men heading them. he built a nunnery which was headed by his daughter as prioress. he built a strong wall with four gates around london, which he had taken into his control. he appointed his son-in-law, who was one of his eorldormen, to be alderman [older man] to govern london and to be the shire's earl. a later king built a palace in london, although winchester was still the royal capital town. when the king traveled, he and his retinue were fed by the local people at their expense. after alfred's death, his daughter aethelflared ruled the country for seven years. she had more fortified burhs built and led soldiers to victories. under the royalty were the nobles. an earl headed each shire as representative of the king. the term "earl" came to denote an office instead of a nobleman. he led the array of his shire to do battle if the shire was attacked. he executed all royal commands. an earl received grants of land and could claim hospitality and maintenance for himself, his officers, and his servants. he presided over the shire court. he received one-third of the fines from the profits of justice and collected as well a third of the revenues derived from tolls and duties levied in the boroughs of his shire. the office tended to be hereditary. royal representatives called "reeves" started to assist them. the reeve took security from every person for the maintenance of the public peace. he also tracked cattle thieves, brought suspects to court, gave judgments according to the doom books, and delivered offenders to punishment. under the earls were the thegns. by service to the king, it was possible for a coerl to rise to become a thegn and to be given land by the king. other thegns performed functions of magistrates. a thegn was later identified as a person with five hides of land, a kitchen, a church, a bell house, a judicial place at the burh- gemot [a right of magistracy], and an appointment in the king's hall. he was bound to to service in war by virtue of his landholding instead of by his relationship to the king. nobility was now a territorial attribute, rather than one of birth. the wergeld of a thegn was s. when that of a ceorl or ordinary freeman was s. the wergeld of an earl or bishop was four times that of a thegn: s. the wergeld of a king or archbishop was six times that of a thegn: s. the higher a man's wergeld, the higher was his legal status in the scale of punishment, giving credible evidence, and participation in legal proceedings. the sokemen were freemen who had inherited their own land, chose their own lord, and attended and were subject to their lord's court. that is, their lord has soke [soc] jurisdiction over them. a ceorl typically had a single hide of land. a smallholder rented land of about acres from a landlord, which he paid by doing work on the lord's demesne [household or messuage] land, paying money rent, or paying a food rent such as in eggs or chickens. smallholders made up about two fifths of the population. a cottager had one to five acres of land and depended on others for his living. among these were shepherds, ploughmen, swineherds, and blacksmiths. they also participated in the agricultural work, especially at harvest time. it was possible for a thegn to become an earl, probably by the possession of forty hides. he might even acquire enough land to qualify him for the witan. women could be present at the witenagemot and shire-gemot [meeting of the people of the shire]. they could sue and be sued in the courts. they could independently inherit, possess, and dispose of property. a wife's inheritance was her own and under no control of her husband. marriage required the consent of the lady and her friends. the man also had to arrange for the foster lean, that is, remuneration for rearing and support of expected children. he also declared the amount of money or land he would give the lady for her consent, that is, the morgengift, and what he would bequeath her in case of his death. it was given to her on the morning after the wedding night. the family of the bride was paid a "mund" for transferring the rightful protection they possessed over her to the family of the husband. if the husband died and his kindred did not accept the terms sanctioned by law, her kindred could repurchase the rightful protection. if she remarried within a year of his death, she had to forfeit the morgengift and his nearest kin received the lands and possessions she had. the word for man was "waepnedmenn" or weaponed person. a woman was "wifmenn" or wife person, with "wif" being derived from the word for weaving. great men and monasteries had millers, smiths, carpenters, architects, agriculturists, fishermen, weavers, embroiders, dyers, and illuminators. for entertainment, minstrels sang ballads about heroes or bible stories, harpers played, jesters joked, and tumblers threw and caught balls and knives. there was gambling, dice games, and chasing deer with hounds. fraternal guilds were established for mutual advantage and protection. a guild imposed fines for any injury of one member by another member. it assisted in paying any murder fine imposed on a member. it avenged the murder of a member and abided by the consequences. it buried its members and purchased masses for his soul. mercantile guilds in seaports carried out commercial speculations not possible by the capital of only one person. there were some ale houses, probably part of certain dwellings. - the law - alfred issued a set of laws to cover the whole country, which were drawn from the best laws of each region. there was no real distinction between the concepts of law, morals, and religion. the importance of telling the truth and keeping one's word are expressed by this law: " . at the first we teach that it is most needful that every man warily keep his oath and his wed. if any one be constrained to either of these wrongfully, either to treason against his lord, or to any unlawful aid; then it is juster to belie than to fulfil. but if he pledge himself to that which is lawful to fulfil, and in that belie himself, let him submissively deliver up his weapon and his goods to the keeping of his friends, and be in prison forty days in a king's tun: let him there suffer whatever the bishop may prescribe to him " let his kinsmen feed him, if he has no food. if he escapes, let him be held a fugitive and be excommunicate of the church. the word of a bishop and of the king were incontrovertible without an oath. the ten commandments were written down as this law: "the lord spake these words to moses, and thus said: i am the lord thy god. i led thee out of the land of the egyptians, and of their bondage. . love thou not other strange gods above me. . utter thou not my name idly, for thou shalt not be guiltless towards me if thou utter my name idly. . remember that thou hallow the rest day. work for yourselves six days, and on the seventh rest. for in six days, christ wrought the heavens and the earth, the seas, and all creatures that are in them, and rested on the seventh day: and therefore the lord hallowed it. . honor thy father and thy mother whom the lord hath given thee, that thou mayst be the longer living on earth. . slay thou not. . commit thou not adultery. . steal thou not. . say thou not false witness. . covet thou not thy neighbor's goods unjustly. . make thou not to thyself golden or silver gods." if any one fights in the king's hall, or draws his weapon, and he be taken; be it in the king's doom, either death, or life, as he may be willing to grant him. if he escape, and be taken again, let him pay for himself according to his wergeld, and make bot for the offence, as well wer as wite, according as he may have wrought. if a man fights before a king's ealdorman in the gemot, let him make bot with wer and wite as it may be right; and before this s. to the ealdorman as wite. if he disturbs the folkmote by drawing his weapon, s. to the ealdorman as wite. if any of this happens before a king's ealdorman's junior, or a king's priest, s. as wite. if any one fights in a ceorlish man's dwelling, let him make bot of s.to the ceorl. if he draws his weapon but doesn't fight, let it be half of that. if, however, either of these happens to a man with a wergeld of s., let it increase threefold of the ceorlish bot; and if to a man with a wergeld of s., let it increase twofold of the bot of the man with a wergeld of s. breach of the king's dwelling [breaking and entering] shall be s.; an archbishop's, s.; any other bishop's, and an ealdorman's, s.;. a s. wergeld man's, s.; a s. wergeld man's, s.; and a ceorl's s. if any one plot against the king's life, of himself, or by harbouring of exiles, or of his men; let him be liable with his life and in all that he has; or let him prove himself according to his lord's wer. if any one with a band or gang of men slays an unoffending man, let him who acknowledges the death-blow pay wer and wite. if the slain man had a wergeld of s, let every one who was of the gang pay s. as gang-bot. if he had a wergeld of s., let every one pay s. as gang-bot. if he had a wergeld of s., let every one pay s. if a gang does this, and afterwards denies it on oath, let them all be accused, and let them then all pay the wer in common; and all, one wite, such as shall belong to the wer. if any one lends his weapon to another so he may kill some one with it, they may join together if they will in the wer. if they will not join together, let him who lent the weapon pay of the wer a third part, and of the wite a third part. with his lord a man may fight free of liability for homicide, if any one attack the lord: thus may the lord fight for his man. likewise, a man may fight with his born kinsman, if a man attack him wrongfully, except against his lord. and a man may fight free of liability for homicide, if he finds another with his lawful wife, within closed doors, or under one covering, or with his lawfully-born daughter, or with his lawfully-born sister, or with his mother, who was given to his father as his lawful wife. if a man knows his foe is sitting at his home, he may not fight with him before he demands justice of him. if he has such power that he can beset his foe, and besiege him within, let him keep him within for seven days, and not attack him if he will remains within. and, then, after seven days, if he surrenders, and gives up his weapons, let him be kept safe for thirty days, and let notice of him be given to his kinsmen and his friends. but if he does not have sufficient power to besiege him within, let him ride to the ealdorman, and beg aid of him. if he will not aid him, let him ride to the king before he fights. in like manner also, if a man come upon his foe, and he did not know beforehand that he was staying at his home; if he is willing to give up his weapons, let him be kept for thirty days, and let notice of him be given to his friends; if he will not give up his weapons, then he may attack him. if he is willing to surrender, and to give up his weapons, and any one after that attack him, let him pay as well wer as wound, as he may do, and wite, and let him have forfeited his compensation to his kin. every church shall have this peace: if a fugitive flee to one for sanctuary, no one may drag him out for seven days. if he is willing to give up his weapons to his foes, let him stay thirty days, and then let notice of him be given to his kinsmen. if any man confess in church any offences which had not been before revealed, let him be half forgiven. if a man from one holdgetael wishs to seek a lord in another holdgetael, let him do it with the knowledge of the ealdorman whom he before followed in his shire. if he does it without his knowledge, let him who treats him as his man pay s. as wite, one-half to the king in the shire where he before followed and one-half in that into which he comes. if he has done anything wrong where he was before, let him make bot for it who has there received him as his man; and to the king s. as wite. "if any one steals so that his wife and children don't know it, he shall pay shillings as wite. but if he steals with the knowledge of all his household, they shall all go into slavery. a boy of ten years may be privy to a theft." "if one who takes a thief, or holds him for the person who took him, lets the thief go, or conceals the theft, he shall pay for the thief according to his wer. if he is an eorldormen, he shall forfeit his shire, unless the king is willing to be merciful to him." if any one steal in a church, let him pay the lawful penalty and the wite, and let the hand be struck off with which he did it. if he will redeem the hand, and that be allowed him, let him pay as may belong to his wer. if a man slanders another, the penalty is no lighter thing than that his tongue be cut out; which must not be redeemed at any cheaper rate than it is estimated at according to his wer. if one deceives an unbetrothed woman and sleep with her, he must pay for her and have her afterwards to wife. but if her father not approve, he should pay money according to her dowry. "if a man seize hold of the breast of a ceorlish woman, let him make bot to her with shillings. if he throw her down and do not lie with her, let him make bot with shillings. if he lie with her, let him make bot with shillings. if another man had before lain with her, then let the bot be half that. ... if this befall a woman more nobly born, let the bot increase according to the wer." "if any one, with libidinous intent, seize a nun either by her raiment or by her breast without her leave, let the bot be twofold, as we have before ordained concerning a laywoman." "if a man commit a rape upon a ceorl's female slave, he must pay bot to the ceorl of shillings and a wite [fine to the king] of shillings. if a male theow rape a female theow, let him make bot with his testicles." for the first dog bite, the owner pays shillings, for the second, shillings, for the third, shillings. an ox which gores someone to death shall be stoned. if one steals or slays another's ox, he must give two oxen for it. the man who has land left to him by his kindred must not give it away from his kindred, if there is a writing or witness that such was forbidden by those men who at first acquired it, and by those who gave it to him; and then let that be declared in the presence of the king and of the bishop, before his kinsmen. - judicial procedure - cases were held at monthly meetings of the hundred court. the king or one of his reeves, conducted the trial by compurgation. in compurgation, the one complaining, called the "plaintiff", and the one defending, called the "defendant", each told their story and put his hand on the bible and swore "by god this oath is clean and true". a slip or a stammer would mean he lost the case. otherwise, community members would stand up to swear on behalf of the plaintiff or the defendant as to their reputation for veracity. the value of a man's oath was commensurate with his value or wergeld. a man's brothers were usually his compurgators. if these "compurgators" were too few, usually twelve in number, or recited poorly, their party lost. if this process was inconclusive, the parties could bring witnesses to declare such knowledge as they had as neighbors. these witnesses, male and female, swore to particular points determined by the court. if the witnesses failed, the defendant was told to go to church and to take the sacrament only if he or she were innocent. if he or she took the sacrament, he or she was tried by the process of "ordeal", which was administered by the church. in the ordeal by cold water, he was given a drink of holy water and then bound hand and foot and thrown into water. if he floated, he was guilty. if he sank, he was innocent. it was not necessary to drown to be deemed innocent. in the ordeal by hot water, he had to pick up a stone from inside a boiling cauldron. if his hand was healing in three days, he was innocent. if it was festering, he was guilty. a similar ordeal was that of hot iron, in which one had to carry in his hands a hot iron for a certain distance. the results of the ordeal were taken to indicate the will of god. presumably a person convicted of murder, i.e. killing by stealth, or robbery [taking from a person's robe, that is, his person or breaking into his home to steal] would be hung and his possessions confiscated. a bishop's oath was incontrovertible. accused archbishops and bishops could clear themselves with an oath that they were guiltless. lesser ranks could clear themselves with the oaths of three compurgators of their rank or, for more serious offenses, undergo the ordeal of the consecrated morsel. for this, one would swallow a morsel; if he choked on it, he was guilty. any inanimate or animate object or personal chattel which was found by a court to be the immediate cause of death was forfeited as "deodand", for instance, a tree from which a man fell to his death, a beast which killed a man, a sword of a third party not the slayer that was used to kill a man. the deodand was to go to the dead man's kin so they could wreak their vengeance on it, which in turn would cause the dead man to lie in peace. this is a lawsuit regarding rights to feed pigs in a certain woodland: "in the year which had passed since the birth of christ, and in the course of the second indiction, and during the reign of beornwulf, king of mercia, a council meeting was held in the famous place called clofesho, and there the said king beornwulf and his bishops and his earls and all the councilors of this nation were assembled. then there was a very noteworthy suit about wood pasture at sinton, towards the west in scirhylte. the reeves in charge of the pigherds wished to extend the pasture farther, and take in more of the wood than the ancient rights permitted. then the bishop and the advisors of the community said that they would not admit liability for more than had been appointed in aethelbald's day, namely mast for swine, and that the bishop and the community should have two thirds of the wood and of the mast. the archbishop wulfred and all the councilors determined that the bishop and the community might declare on oath that it was so appointed in aethelbald's time and that they were not trying to obtain more, and the bishop immediately gave security to earl eadwulf to furnish the oath before all the councilors, and it was produced in days at the bishop's see at worcester. at that time hama was the reeve in charge of the pigherds at sinton, and he rode until he reached worcester, and watched and observed the oath, as earl eadwulf bade him, but did not challenge it. here are the names and designations of those who were assembled at the council meeting ..." - - - chapter - - - - the times: - - there were many large landholders such as the king, earls, and bishops. earls were noblemen by birth, and often relatives of the king. they were his army commanders and the highest civil officials, each responsible for a shire. a breach of the public peace of an earl would occasion a fine. lower in social status were freemen: sokemen, and then, in decreasing order, villani [villeins], bordarii, and cottarii. the servi were the slaves. probably all who were not slaves were freemen. kings typically granted land in exchange for services of military duties, maintaining fortresses, and repairing bridges. less common services required by landlords include equipping a guard ship and guarding the coast, guarding the lord, military watch, maintaining the deer fence at the king's residence, alms giving, and church dues. since this land was granted in return for service, there were limitations on its heritability and often an heir had to pay a heriot to the landlord to obtain the land. a heriot was originally the armor of a man killed, which went to the king. the heriot of a thegn who had soken came to be about s.; of a kings' thegn about four lances, two coats of mail, two swords, and s.; of an earl about eight horses, four saddled and four unsaddled, eight lances, four coats of mail, four swords, and s. there were several thousand thegns, rich and poor, who held land directly of the king. some thegns had soken or jurisdiction over their own lands and others did not. free farmers who had sought protection from thegns in time of war now took them as their lords. a freeman could chose his lord, following him in war and working his land in peace. all able-bodied freemen were liable to military service in the fyrd [national militia], but not in a lord's private wars. in return, the lord would protect him against encroaching neighbors, back him in the courts of law, and feed him in times of famine. but often, lords raided each other's farmers, who fled into the hills or woods for safety. often a lord's fighting men stayed with him at his large house, but later were given land with inhabitants on it, who became his tenants. the lords were the ruling class and the greatest of them sat in the king's council along with bishops, abbots, and officers of the king's household. the lesser lords were local magnates, who officiated at the shire and hundred courts. stag-hunting, fox-hunting, and hawking were reserved for lords who did not work with their hands. every free born person had the right to hunt other game. there was a great expansion of arable land. some land had been specifically allocated to certain individuals. some was common land, held by communities. if a family came to pay the dues and fines on certain common land, it could become personal to that family and was then known as heir-land. most land came to be privately held from community-witnessed allotments or inheritance. book-land was those holdings written down in books. this land was usually land that had been given to the church or monasteries because church clerics could write. so many thegns gave land to the church, usually a hide, that the church held / of the land of the realm. folk-land was that land that was left over after allotments had been made to the freemen and which was not common land. it was public land and a national asset and could be converted to heir-land or book-land only by action of the king and witan. it could also be rented by services to the state via charter. a holder of folk-land might express a wish, e.g. by testamentary action, for a certain disposition of it, such as an estate for life or lives for a certain individual. but a distinct act by the king and witan was necessary for this wish to take effect. small private transactions of land could be done by "livery of seisin" in the presence of neighbors. all estates in land could be let, lent, or leased by its holders, and was then known as "loenland". ploughs and wagons could be drawn by four or more oxen or horses in sets of two behind each other. oxenshoes and horseshoes prevented lameness due to cracked hooves. horse collars especially fitted for horses, replaced oxen yoke that had been used on horses. a free holder's house was wood, perhaps with a stone foundation, and roofed with thatch or tiles. there was a main room or hall, with bed chambers around it. beyond was the kitchen, perhaps outside under a lean-to. these buildings were surrounded by a bank or stiff hedge. simple people lived in huts made from wood and mud, with one door and no windows. they slept around a wood-burning fire in the middle of the earthen floor. they wore shapeless clothes of goat hair and unprocessed wool from their sheep. they ate rough brown bread, vegetable and grain broth, ale from barley, bacon, beans, milk, cabbage, onion, apples, plums, cherries, and honey for sweetening or mead. vegetables grown in the country included onions, leeks, celery, lettuce, radish, carrots, garlic, shallots, parsnip, dill, chevil, marigold, coriander, and poppy. in the summer, they ate boiled or raw veal and wild fowl such as ducks, geese, or pigeons, and game snared in the forest. poultry was a luxury food, but recognized as therapeutic for invalids, especially in broth form [chicken soup]. venison was highly prized. there were still some wild boar, which were hunted with long spears, a greyhound dog, and hunting horns. they sometimes mated with the domestic pigs which roamed the woodlands. in september, the old and infirm pigs were slaughtered and their sides of bacon smoked in the rafters for about a month. their intestines provided skin for sausages. in the fall, cattle were slaughtered and salted for food during the winter because there was no more pasture for them. however, some cows and breed animals were kept through the winter. for their meals, people used wooden platters, sometimes earthenware plates, drinking horns, drinking cups from ash or alderwood turned on a foot-peddled pole lathe, and bottles made of leather. their bowls, pans, and pitchers were made by the potter's wheel. water could be boiled in pots made of iron, brass, lead, or clay. water could be carried in leather bags because leather working preservative techniques improved so that tanning prevented stretching or decaying. at the back of each hut was a hole in the ground used as a latrine, which flies frequented. moss was used for toilet-paper. parasitical worms in the stool were ubiquitous. most of the simple people lived in villages of about homes circling a village green or lining a single winding lane. there were only first names, and these were usually passed down family lines. to grind their grain, the villagers used hand mills with crank and gear, or a communal mill, usually built of oak, driven by power transmitted through a solid oak shaft, banded with iron as reinforcement, to internal gear wheels of elm. almost every village had a watermill. it might be run by water shooting over or flowing under the wheel. clothing for men and women was made from coarse wool, silk, and linen and was usually brown in color. only the wealthy could afford to wear linen or silk. men also wore leather clothing, such as neckpieces, breeches, ankle leathers, shoes, and boots. boots were worn when fighting. they carried knives or axes under metal belts. they could carry items by tying leather pouches onto their belts with their drawstrings. they wore leather gloves for warmth and for heavy working with their hands. people were as tall, strong and healthy as in the late s, not having yet endured the later malnourishment and overcrowding that was its worst in the s and s. their teeth were very healthy. most adults died in their s, after becoming arthritic from hard labor. people in their s were deemed venerable. boys of twelve were considered old enough to swear an oath of allegiance to the king. girls married in their early teens, often to men significantly older. the lands of the large landholding lords were administered by freemen. they had wheat, barley, oats, and rye fields, orchards, vineyards for wine, and bee-keeping areas for honey. on this land lived not only farm laborers, cattle herders, shepherds, goatherds, and pigherds, but craftsmen such as goldsmiths, hawkkeepers, dogkeepers, horsekeepers, huntsmen, foresters, builders, weaponsmiths, embroiders, bronze smiths, blacksmiths, watermill wrights, wheelwrights, wagon wrights, iron nail makers, potters, soap makers, tailors, shoemakers, salters (made salt at the "wyches", which later became towns ending with '-wich'), bakers, cooks, and gardeners. most men did carpentry work. master carpenters worked with ax, hammer, and saw to make houses, doors, bridges, milk buckets, washtubs, and trunks. blacksmiths made gates, huge door hinges, locks, latches, bolts, and horseshoes. the lord loaned these people land on which to live for their life, called a "life estate", in return for their services. the loan could continue to their widows or children who took up the craft. mills were usually powered by water. candles were made from beeswax, which exuded a bright and steady light and pleasant smell, or from mutton fat, which had an unpleasant odor. the wheeled plough and iron-bladed plough made the furrows. one man hald the plough and another walked with the oxen, coaxing them forward with a stick and shouts. seeds were held in an apron for seeding. farm implements included spades, shovels, rakes, hoes, buckets, barrels, flails, and sieves. plants were pruned to direct their growth and to increase their yield. everyone got together for feasts at key stages of the farming, such as the harvest. easter was the biggest feast. when the lord was in the field, his lady held their estate. there were common lands of these estates as well as of communities. any proposed new settler had to be admitted at the court of this estate. the land of some lords included fishing villages along the coasts. from the sea were caught herrings, salmon, porpoises, sturgeon, oysters, crabs, mussels, cockels, winkeles, plaice, flounder, and lobsters. sometimes whales were driven into an inlet by many boats. river fish included eels, pike, minnows, burbo, trout, and lampreys. they were caught by brushwood weirs, net, bait, hooks, and baskets. oysters were so numerous that they were eaten by the poor. the king's peace extended over the waterways. if mills, fisheries, weirs, or other structures were set up to block them, they were to be destroyed and a penalty paid to the king. other lords had land with iron-mining industries. ore was dug from the ground and combined with wood charcoal in a shaft furnace to be smelted into liquid form. wood charcoal was derived from controlled charring of the wood at high temperatures without using oxygen. this burned impurities from it and left a purer carbon, which burned better than wood. the pure iron was extracted from this liquid and formed into bars. to keep the fire hot, the furnaces were frequently placed at windswept crossings of valleys or on the tops of hills. some lords had markets on their land, for which they charged a toll [like a sales tax] for participation. there were about fifty markets in the nation. cattle and slaves (from the word "slav") were the usual medium of exchange. an ox still was worth about d. shaking hands was symbolic of an agreement for a sale, which had to be carried out in front of witnesses at the market for any property worth over d. the higher the value of the property, the more witnesses were required. witnesses were also required for the exchange of property and to vouch for cattle having being born on the property of a person claiming them. people traveled to markets on deep, sunken roads and narrow bridges kept in repair by certain men who did this work as their service to the king. the king's peace extended to a couple of high roads, i.e. highways, running the length of the country and a couple running its width. salt was used throughout the nation to preserve meat over the winter. inland saltworks had an elaborate and specialized organization. the chief one used saltpans and furnaces to extract salt from natural brine springs. they formed little manufacturing enclaves in the midst of agricultural land, and they were considered to be neither large private estates headed by a lord nor appurtenant to such. they belonged jointly to the king and the local earl, who shared, at a proportion of two to one, the proceeds of the tolls upon the sale of salt and methods of carriage on the ancient salt ways according to cartload, horse load, or man load. sometimes there were investors in a portion of the works who lived quite at distance away. the sales of salt were mostly retail, but some bought to resell. peddlers carried salt to sell from village to village. some smiths traveled for their work, for instance, stonewrights building arches and windows in churches, and lead workers putting lead roofs on churches. an example of a grant of hides of land is: "[god has endowed king edred with england], wherefore he enriches and honors men, both ecclesiastic and lay, who can justly deserve it. the truth of this can be acknowledged by the thegn aelfsige hunlafing through his acquisition of the estate of hides at alwalton for himself and his heirs, free from every burden except the repair of fortifications, the building of bridges and military service; a prudent landowner church dues, burial fees and tithes. [this land] is to be held for all time and granted along with the things both great and small belonging to it." a bishop gave land to a faithful attendant for his life and two other lives as follows: "in a.d., i, bishop werfrith, with the permission and leave of my honorable community in worcester, grant to wulfsige, my reeve, for his loyal efficiency and humble obedience, one hide of land at aston as herred held it, that is, surrounded by a dyke, for three lives and then after three lives the estate shall be given back without any controversy to worcester." at seaports on the coast, goods were loaded onto vessels owned by english merchants to be transported to other english seaports. london was a market town on the north side of the thames river and the primary port and trading center for foreign merchants. streets that probably date from this time include milk, bread, and wood streets, and honey lane. there were open-air markets such as billingsgate. there were wooden quays over much of the riverfront. houses were made of wood, with one sunken floor, or a ground floor with a cellar beneath. some had central stone hearths and earth latrines. there were crude pottery cooking pots, beakers and lamps, wool cloth, a little silk, simple leather shoes, pewter jewelry, looms, and quernstones (for grinding flour). wool, skins, hides, wheat, meal, beer, lead, cheese, salt, and honey were exported. wine (mostly for the church), fish, timber, pitch, pepper, garlic, spices, copper, gems, gold, silk, dyes, oil, brass, sulphur, glass, slaves, and elephant and walrus ivory were imported. goods from the continent were sold at open stalls in certain streets. furs and slaves were traded. there was a royal levy on exports by foreigners merchants. southwark was reachable by a bridge. it contained sleazy docks, prisons, gaming houses, and brothels. guilds in london were first associations of neighbors for the purposes of mutual assistance. they were fraternities of persons by voluntary compact to assist each other in poverty, including their widows or orphans and the portioning of poor maids, and to protect each other from injury. their essential features are and continue to be in the future: ) oath of initiation, ) entrance fee in money or in kind and a common fund, ) annual feast and mass, ) meetings at least three times yearly for guild business, ), obligation to attend all funerals of members, to bear the body if need be from a distance, and to provide masses for the dead, ) the duty of friendly help in cases of sickness, imprisonment, house burning, shipwreck, or robbery, ) rules for decent behavior at meetings, and ) provisions for settling disputes without recourse to the law. both the masses and the feast were attended by the women. frequently the guilds also had a religious ceremonial to affirm their bonds of fidelity. they readily became connected with the exercise of trades and with the training of apprentices. they promoted and took on public purposes such as the repairing of roads and bridges, the relief of pilgrims, the maintenance of schools and almshouses, and the periodic performance of pageants and miracle plays telling scriptural history, which could last for several days. the devil often was prominent in miracle plays. many of these london guilds were known by the name of their founding member. there were also frith guilds (peace guilds) and a knights' guild. the frith guild's main object was to enforce the king's laws, especially the prevalent problem of theft. they were especially established by bishops and reeves. members met monthly and contributed about d. to a common fund, which paid a compensation for items stolen. they each paid s. towards the pursuit of the thief. the members were grouped in tens. members with horses were to track the thief. members without horses worked in the place of the absent horseowners until their return. when caught, the thief was tried and executed. overwhelming force was used if his kindred tried to protect him. his property was used to compensate the victim for his loss and then divided between the thief's wife, if she was innocent, the king, and the guild. owners of slaves paid into a fund to give one half compensation to those who lost slaves by theft or escape, and recaptured slaves were to be stoned to death or hanged. the members of the peace guild also feasted and drank together. when one died, the others each sang a song or paid for the singing of fifty psalms for his soul and gave a loaf. the knights' guild was composed of thirteen military persons to whom king edgar granted certain waste land in the east of london, toward aldgate, and also portsoken, which ran outside the eastern wall of the city to the thames, for prescribed services performed, probably defense of the vulnerable east side of the city. this concession was confirmed by king edward the confessor in a charter at the suit of certain citizens of london, the successors of these knights. edward granted them sac and soke [cause and suit] jurisdiction over their men. edward the confessor made these rules for london: . be it known that within the space of three miles from all parts outside of the city a man ought not to hold or hinder another, and also should not do business with him if he wish to come to the city under its peace. but when he arrives in the city, then let the market be the same to the rich man as to the poor. . be it also known that a man who is from the court of the king or the barons ought not to lodge in the house of any citizen of london for three nights, either by privilege or by custom, except by consent of the host. for if he force the host to lodge him in his house and there be killed by the host, let the host choose six from his relatives and let him as the seventh swear that he killed him for the said cause. and thus he will remain quit of the murder of the deceased towards the king and relatives and lords of the deceased. . and after he has entered the city, let a foreign merchant be lodged wherever it please him. but if he bring dyed cloth, let him see to it that he does not sell his merchandise at retail, but that he sell not less than a dozen pieces at a time. and if he bring pepper, or cumin, or ginger, or alum, or brasil wood, or resin, or incense, let him sell not less than fifteen pounds at a time. but if he bring belts, let him sell not less than a thousand at a time. and if he bring cloths of silk, or wool or linen, let him see that he cut them not, but sell them whole. but if he bring wax, let him sell not less than one quartanum. also a foreign merchant may not buy dyed cloth, nor make the dye in the city, nor do any work which belongs by right to the citizens. . also no foreign merchant with his partner may set up any market within the city for reselling goods in the city, nor may he approach a citizen for making a bargain, nor may he stop longer in the city. every week in london there was a folkmote at st. paul's churchyard, where majority decision was a tradition. by , it had lost much of its power to the husting [household assembly in danish] court. the folkmoot then had responsibility for order and was the sole authority for proclaiming outlaws. it met three times a year at st. paul's churchyard and there acclaimed the sheriff and justiciar, or if the king had chosen his officer, heard who was chosen and listened to his charge. it also yearly arranged the watch and dealt with risks of fire. it was divided into wards, each governed by an alderman who presided over the ward-mote, and represented his ward at the folk-mote. each guild became a ward. the chief alderman was the portreeve. london paid one-eighth of all the taxes of england. later in the towns, merchant guilds grew out of charity associations whose members were bound by oath to each other and got together for a guild feast every month. some traders of these merchant guilds became so prosperous that they became landholders. many market places were dominated by a merchant guild, which had a monopoly of the local trade. in the great mercantile towns all the land and houses would be held by merchants and their dependents, all freeholders were connected with a trade, and everyone who had a claim on public office or magistry would be a member of the guild. the merchant guild could admit into their guild country villeins, who became freemen if unclaimed by their lords for a year and a day. every merchant who had made three long voyages on his own behalf and at his own cost ranked as a thegn. there were also some craft guilds composed of handicraftsmen or artisans. escaped bonded agricultural workers, poor people, and traders without land migrated to towns to live, but were not citizens. towns were largely self-sufficient, but salt and iron came from a distance. the king's established in every shire at least one town with a market place where purchases would be witnessed and a mint where reliable money was coined by a moneyer. there were eight moneyers in london. coins were issued to be of value for only a couple of years. then one had to exchange them for newly issued ones at a rate of about old for or new. the difference constituted a tax. roughly % of the people lived in towns. some took surnames such as tanner, weaver, or carpenter. some had affectionate or derisive nicknames such as clear-hand, fresh friend, soft bread, foul beard, money taker, or penny purse. craftsmen in the s included goldsmiths, embroiderers, illuminators of manuscripts, and armorers. edward the confessor, named such for his piety, was a king of years who was widely respected for his intelligence, resourcefulness, good judgment, and wisdom. his educated queen edith, whom he relied on for advice and cheerful courage, was a stabilizing influence on him. they were served by a number of thegns, who had duties in the household, which was composed of the hall, the courtyard, and the bedchamber. they were important men - thegns by rank. they were landholders, often in several areas, and held leading positions in the shires. they were also priests and clerics, who maintained the religious services and performed tasks for which literacy was necessary. edward was the first king to have a "chancellor". he kept a royal seal and was the chief royal chaplain. he did all the secretarial work of the household and court, drew up and sealed the royal writs, conducted the king's correspondence, and kept all the royal accounts. the word "chancellor" signified a screen behind which the secretarial work of the household was done. he had the special duty of securing and administering the royal revenue from vacant benefices. the most important royal officers were the chamberlains, who took care of the royal bedchamber and adjoining wardrobe used for dressing and storage of valuables, and the priests. these royal officers had at first been responsible only for domestic duties, but gradually came to assume public administrative tasks. edward wanted to avoid the pressures and dangers of living in the rich and powerful city of london. so he rebuilt a monastic church, an abbey, and a palace at westminster about two miles upstream. he started the growth of westminster as a center of royal and political power; kings' councils met there. royal coronations took place at the abbey. since edward traveled a lot, he established a storehouse-treasury at winchester to supplement his traveling wardrobe. at this time, spanish stallions were imported to improve english horses. london came to have the largest and best-trained army in england. the court invited many of the greatest magnates and prelates [highest ecclesiastical officials, such as bishops] of the land to the great ecclesiastical festivals, when the king held more solemn courts and feasted with his vassals for several days. these included all the great earls, the majority of bishops, some abbots, and a number of thegns and clerics. edward had a witan of wise men to advise him, but sometimes the king would speak in the hall after dinner and listen to what comments were made from the mead-benches. as the court moved about the country, many men came to pay their respects and attend to local business. edward started the practice of king's touching people to cure them of scrofula, a disease which affected the glands, especially in the head and neck. it was done in the context of a religious ceremony. the main governmental activities were: war, collection of revenue, religious education, and administration of justice. for war, the shires had to provide a certain number of men and the ports quotas of ships with crews. the king was the patron of the english church. he gave the church peace and protection. he presided over church councils and appointed bishops. as for the administration of justice, the public courts were almost all under members of edward's court, bishops, earls, and reeves. edward's mind was often troubled and disturbed by the threat that law and justice would be overthrown, by the pervasiveness of disputes and discord, by the raging of wicked presumption, by money interfering with right and justice, and by avarice kindling all of these. he saw it as his duty to courageously oppose the wicked by taking good men as models, by enriching the churches of god, by relieving those oppressed by wicked judges, and by judging equitably between the powerful and the humble. he was so greatly revered that a comet was thought to accompany his death. the king established the office of the chancery to draft documents and keep records. it created the writ, which was a small piece of parchment addressed to a royal official or dependent commanding him to perform some task for the king. by the s a.d., the writ contained a seal: a lump of wax with the impress of the great seal of england which hung from the bottom of the document. writing was done with a sharpened goose-wing quill. ink was obtained from mixing fluid from the galls made by wasps for their eggs on oak trees, rainwater or vinegar, gum arabic, and iron salts for color. a king's grant of land entailed two documents: a charter giving boundaries and conditions and a writ, usually addressed to the shire court, listing the judicial and financial privileges conveyed with the land. these were usually sac and soke [possession of jurisdiction of a private court of a noble or institution to execute the laws and administer justice over inhabitants and tenants of the estate], toll [right to have a market and to collect a payment on the sale of cattle and other property on the estate] and team [probably the right to hold a court to determine the honesty of a man accused of illegal possession of cattle or of buying stolen cattle by inquiring of the alleged seller or a warrantor, even if an outsider], and infangenetheof [the authority to hang and take the chattels of a thief caught on the estate]. the town of coventry consisted of a large monastery estate and a large private estate headed by a lord. the monastery was granted by edward the confessor full freedom and these jurisdictions: sac and soke, toll and team, hamsocne [the authority to fine a person for breaking into and making entry by force into the dwelling of another], forestall [the authority to fine a person for robbing others on the road], bloodwite [the authority to impose a forfeiture for assault involving bloodshed], fightwite [the authority to fine for fighting], weordwite [the authority to fine for manslaughter, but not for willful murder], and mundbryce [the authority to fine for any breach of the peace, such as trespass on lands]. every man was expected to have a lord to whom he gave fealty. he swore by this fealty oath: "by the lord, before whom this relic is holy, i will be to ------ faithful and true, and love all that he loves, and shun all that he shuns, according to god's law, and according to the world's principle, and never, by will nor by force, by word nor by work, do ought of what is loathful to him; on condition that he keep me as i am willing to deserve, and all that fulfill that our agreement was, when i to him submitted and chose his will." if a man was homeless or lordless, his brothers were expected to find him such, e.g. in the folkmote. otherwise, he as to be treated as a fugitive, and could be slain as for a thief, and anyone who had harbored him would pay a penalty. brothers were also expected to protect their minor kinsmen. marriages were determined by men asking women to marry them. if a woman said yes, he paid a sum to her kin for her "mund" [jurisdiction or protection over her] and gave his oath to them to maintain and support the woman and any children born. as security for this oath, he gave a valuable object or "wed". the couple were then betrothed. marriage ceremonies were performed by priests in churches. the groom had to bring friends to his wedding as sureties to guarantee his oath to maintain and support his wife and children. those who swore to take care of the children were called their "godfathers". the marriage was written into church records. after witnessing the wedding, friends ate the great loaf, or first bread made by the bride. this was the forerunner of the wedding cake. they drank special ale, the "bride ale" (from hence the work "bridal"), to the health of the couple. women could own land, houses, and furniture and other property. they could even make wills that disinherited their sons. this marriage agreement with an archbishop's sister provides her with land, money, and horsemen: "here in this document is stated the agreement which wulfric and the archbishop made when he obtained the archbishop's sister as his wife, namely he promised her the estates at orleton and ribbesford for her lifetime, and promised her that he would obtain the estate at knightwick for her for three lives from the community at winchcombe, and gave her the estate at alton to grant and bestow upon whomsoever she pleased during her lifetime or at her death, as she preferred, and promised her mancuses of gold and men and horses. the witnesses that this agreement was made as stated were archbishop wulfstan and earl leofwine and bishop aethelstan and abbot aelfweard and the monk brihtheah and many good men in addition to them, both ecclesiastics and laymen. there are two copies of this agreement, one in the possession of the archbishop at worcester and the other in the possession of bishop aethelstan at hereford." this marriage agreement provided the wife with money, land, farm animals and farm laborers; it also names sureties, the survivor of whom would receive all this property: "here is declared in this document the agreement which godwine made with brihtric when he wooed his daughter. in the first place he gave her a pound's weight of gold, to induce her to accept his suit, and he granted her the estate at street with all that belongs to it, and acres at burmarsh and in addition oxen and cows and horses and slaves. this agreement was made at kingston before king cnut, with the cognizance of archbishop lyfing and the community at christchurch, and abbot aelfmaer and the community at st. augustine's, and the sheriff aethelwine and sired the old and godwine, wulfheah's son, and aelfsige cild and eadmaer of burham and godwine, wulfstan's son, and carl, the king's cniht. and when the maiden was brought from brightling aelfgar, sired's son, and frerth, the priest of forlstone, and the priests leofwine and wulfsige from dover, and edred, eadhelm's son, and leofwine, waerhelm's son, and cenwold rust and leofwine, son of godwine of horton, and leofwine the red and godwine, eadgifu's son, and leofsunu his brother acted as security for all this. and whichever of them lives the longer shall succeed to all the property both in land and everything else which i have given them. every trustworthy man in kent and sussex, whether thegn or commoner, is cognizant of these terms. there are three of these documents; one is at christchurch, another at st. augustine's, and brihtric himself has the third." nuns and monks lived in segregated nunneries and monasteries on church land and grew their own food. the local bishop usually was also an abbot of a monastery. the priests and nuns wore long robes with loose belts and did not carry weapons. their life was ordered by the ringing of the bell to start certain activities, such as prayer; meals; meetings; work in the fields, gardens, or workshops; and copying and illuminating books. they chanted to pay homage and to communicate with god or his saints. they taught justice, piety, chastity, peace, and charity; and cared for the sick. caring for the sick entailed mostly praying to god as it was thought that only god could cure. they bathed a few times a year. they got their drinking water from upstream of where they had located their latrines over running water. the large monasteries had libraries, dormitories, guesthouses, kitchens, butteries to store wine, bakehouses, breweries, dairies, granaries, barns, fishponds, orchards, vineyards, gardens, workshops, laundries, lavatories with long stone or marble washing troughs, and towels. slavery was diminished by the church by excommunication for the sale of a child over seven. the clergy taught that manumission of slaves was good for the soul of the dead, so it became frequent in wills. the clergy were to abstain from red meat and wine and were to be celibate. but there were periods of laxity. punishment was by the cane or scourge. the archbishop of canterbury began anointing new kings at the time of coronation to emphasize that the king was ruler by the grace of god. as god's minister, the king could only do right. from , the new king swore to protect the christian church, to prevent inequities to all subjects, and to render good justice, which became a standard oath. there was a celestial hierarchy, with heavenly hosts in specific places. god intervened in daily life, especially if worshipped. saints such as bede and hilda performed miracles, especially ones of curing. their spirits could be contacted through their relics, which rested at the altars of churches. when someone was said to have the devil in him, people took it quite literally. a real jack frost nipped noses and fingers and made the ground too hard to work. little people, elves, trolls, and fairies inhabited the fears and imaginings of people. the forest was the mysterious home of spirits. people prayed to god to help them in their troubles and from the work of the devil. since natural causes of events were unknown, people attributed events to wills like their own. illness was thought to be caused by demons. people hung charms around their neck for cure and treatments of magic and herbs were given. some had hallucinogenic effects, which were probably useful for pain. for instance, the remedy for "mental vacancy and folly" was a drink of "fennel, agrimony, cockle, and marche". blood- letting by leeches and cautery were used for most maladies, which were thought to be caused by imbalance of the four bodily humors: sanguine, phlegmatic, choleric, and melancholic. these four humors reflected the four basic elements of the world articulated by aristotle: air, water, fire, and earth. blood was hot and moist like air; phlegm was cold and moist like water; choler or yellow bile was hot and dry like fire; and melancholy or black bile was cold and dry like earth. bede had explained that when blood predominates, it makes people joyful and glad, sociable, laughing, and talking a great deal. phlegm renders them slow, sleepy, and forgetful. red cholic makes them thin, though eating much, swift, bold, wrathful, and agile. black cholic makes them serious of settled disposition, even sad. to relieve brain pressure and/or maybe to exorcise evil spirits, holes were drilled into skulls by a drill with a metal tip that was caused to turn back and forth by a strap wrapped around a wooden handle. a king's daughter edith inspired a cult of holy wells, whose waters were thought to alleviate eye conditions. warmth and rest were also used for illness. agrimony boiled in milk was thought to relieve impotence in men. it was known that the liver casted out impurities in the blood. the stages of fetal growth were known. the soul was not thought to enter a fetus until after the third month, so presumably abortions within three months were allowable. the days of the week were sun day, moon day, tiw's day (viking god of war), woden's day (viking god of victory, master magician, calmer of storms, and raiser of the dead), thor's day (viking god of thunder), frig's day (viking goddess of fertility and growing things), and saturn's day (roman god). special days of the year were celebrated: christmas, the birthday of jesus christ; the twelve days of yuletide (a viking tradition) when candles were lit and houses decorated with evergreen and there were festivities around the burning of the biggest log available; plough monday for resumption of work after yuletide; february th with a feast celebrating saint valentinus, a roman bishop martyr who had married young lovers in secret when marriage was forbidden to encourage men to fight in war; new year's day on march th when seed was sown and people banged on drums and blew horns to banish spirits who destroy crops with disease; easter, the day of the resurrection of jesus christ; whitsunday, celebrating the descent of the holy spirit on the apostles of jesus and named for the white worn by baptismal candidates; may day when flowers and greenery was gathered from the woods to decorate houses and churches, morris dancers leapt through their villages with bells, hobby horses, and waving scarves, and people danced around a may pole holding colorful ribbons tied at the top so they became entwined around the pole; lammas on august st, when the first bread baked from the wheat harvest was consecrated; harvest home when the last harvest load was brought home while an effigy of a goddess was carried with reapers singing and piping behind, and october st, the eve of the christian designated all hallow day, which then became known as all hallow even, or halloween. people dressed as demons, hobgoblins, and witches to keep spirits away from possessing them. trick or treating began with christian beggars asking for "soul cake" biscuits in return for praying for dead relatives. ticktacktoe and backgammon were played. there were riddles such as: i am a strange creature, for i satisfy women ... i grow very tall, erect in a bed. i'm hairy underneath. from time to time a beautiful girl, the brave daughter of some fellow dares to hold me grips my reddish skin, robs me of my head and puts me in the pantry. at once that girl with plaited hair who has confined me remembers our meeting. her eye moistens. what am i? an onion. a man came walking where he knew she stood in a corner, stepped forwards; the bold fellow plucked up his own skirt by hand, stuck something stiff beneath her belt as she stood, worked his will. they both wiggled. the man hurried; his trusty helper plied a handy task, but tired at length, less strong than she, weary of the work. thick beneath her belt swelled the thing good men praise with their hearts and purses. what am i? a milk churn. the languages of invaders had produced a hybrid language that was roughly understood throughout the country. the existence of europe, africa, asia, and india were known. jerusalem was thought to be at the center of the world. there was an annual tax of a penny on every hearth, peter's pence, to be collected and sent to the pope in rome. ecclesiastical benefices were to pay church- scot, a payment in lieu of first fruits of the land, to the pope. - the law - the king and witan deliberated on the making of new laws, both secular and spiritual, at the regularly held witanagemot. there was a standard legal requirement of holding every man accountable, though expressed in different ways, such as the following three: every freeman who does not hold land must find a lord to answer for him. the act of homage was symbolized by holding his hands together between those of his lord. every lord shall be personally responsible as surety for the men of his household. [this included female lords.] (king athelstan) "and every man shall see that he has a surety, and this surety shall bring and keep him to [the performance of] every lawful duty. . and if anyone does wrong and escapes, his surety shall incur what the other should have incurred. . if the case be that of a thief and his surety can lay hold of him within twelve months, he shall deliver him up to justice, and what he has paid shall be returned to him." (king edgar) every freeman who holds land, except lords with considerable landed property, must be in a local tithing, usually ten to twelve men, in which they serve as personal sureties for each other's peaceful behavior. if one of the ten landholders in a tithing is accused of an offense, the others have to produce him in court or pay a fine plus pay the injured party for the offense, unless they could prove that they had no complicity in it. if the man is found guilty but can not pay, his tithing must pay his fine. the chief officer is the "tithing man" or "capital pledge". there were probably ten tithings in a hundred. (king edward the confessor). everyone was to take an oath not to steal, which one's surety would compel one to keep. no one may receive another lord's man without the permission of this lord and only if the man is blameless towards every hand. the penalty is the bot for disobedience. no lord was to dismiss any of his men who had been accused, until he had made compensation and done right. "no woman or maiden shall be forced to marry a man she dislikes or given for money." "violence to a widow or maiden is punishable by payment of one's wergeld." no man may have more wives than one. no man may marry among his own kin within six degrees of relationship or with the widow of a man as nearly related to him as that, or with a near relative of his first wife's, or his god- mother, or a divorced woman. incest is punishable by payment of one's wergeld or a fine or forfeiture of all his possessions. grounds for divorce were mutual consent or adultery or desertion. adultery was prohibited for men as well as for women. the penalty was payment of a bot or denial of burial in consecrated ground. a law of canute provided that if a wife was guilty of adultery, she forfeited all her property to her husband and her nose and ears, but this law did not survive him. laymen may marry a second time, and a young widow may again take a husband, but they will not receive a blessing and must do penance for their incontinence. prostitutes were to be driven out of the land or destroyed in the land, unless they cease from their wickedness and make amends to the utmost of their ability. neither husband nor wife could sell family property without the other's consent. if there was a marriage agreement, it determined the wife's "dower", which would be hers upon his death. otherwise, if a man who held his land in socage [owned it freely and not subject to a larger landholder] died before his wife, she got half this property. if there were minor children, she received all this property. inheritance of land to adult children was by the custom of the land held. in some places, the custom was for the oldest son to take it and in other places, the custom was for the youngest son to take it. usually, the sons each took an equal portion by partition, but the eldest son had the right to buy out the others as to the chief messuage [manor; dwelling and supporting land and buildings] as long as he compensated them with property of equal value. if there were no legitimate sons, then each daughter took an equal share when she married. in london, one-third of the personal property of a decedent went to his wife, one-third went to his children in equal shares, and one-third he could bequeath as he wished. "if a man dies intestate [without a will], his lord shall have heriot [horses, weapons, shields, and helmets] of his property according to the deceased's rank and [the rest of] the property shall be divided among his wife, children, and near kinsmen." a man could justifiably kill an adulterer in the act with the man's wife, daughter, sister, or mother. in kent, a lord could fine any bondswoman of his who had become pregnant without his permission [childwyte]. a man could kill in defense of his own life, the life of his kinsmen, his lord, or a man whose lord he was. the offender was "caught red-handed" if the blood of his victim was still on him. self-help was available for hamsocne [breaking into a man's house to assault him]. murder is punished by death as follows: "if any man break the king's peace given by hand or seal, so that he slay the man to whom the peace was given, both his life and lands shall be in the king's power if he be taken, and if he cannot be taken he shall be held an outlaw by all, and if anyone shall be able to slay him he shall have his spoils by law." the king's peace usually extended to important designated individuals, churches, assemblies, those traveling to courts or assemblies, and particular times and places. often a king would extend his peace to fugitives from violent feuds if they asked the king, earls, and bishops for time to pay compensation for their misdeeds. from this came the practice of giving a portion of the "profits of justice" to such men who tried the fugitive. the king's peace came to be extended to those most vulnerable to violence: foreigners, strangers, and kinless persons. "if anyone by force break or enter any man's court or house to slay or wound or assault a man, he shall pay s. to the king as fine." "if anyone slay a man within his court or his house, himself and all his substance are at the king's will, save the dower of his wife if he have endowed her." if a person fights and wounds anyone, he is liable for his wer. if he fells a man to death, he is then an outlaw and is to be seized by raising the hue and cry. and if anyone kills him for resisting god's law or the king's, there will be no compensation for his death. a man could kill a thief over twelve years in the act of carrying off his property over d., e.g. the thief hand-habbende [a thief found with the stolen goods in his hand] or the thief back-berend [a thief found carrying stolen goods on his back]. cattle theft could be dealt with only by speedy pursuit. a person who had involuntarily lost possession of cattle is to at once raise the hue and cry. he was to inform the hundred-man, who then called the tithing-men. all these neighbors had to then follow the trail of the cow to its taker, or pay d. to the hundred for the first offense, and d. for the second offense, half to the hundred and half to the lord, and half a pound [ s.] for the third offense, and forfeiture of all his property and declared outlaw for the fourth offense. if the hundred pursued a track into another hundred, notice was to be given to that hundred-man. if he did not go with them, he had to pay s. to the king. if a thief was brought into prison, he was to be released after days if he paid his fine of s. his kindred could become his sureties, to pay according to his wer if he stole again. if a thief forfeited his freedom and gave himself up, but his kindred forsook him, and he does not know of anyone who will make bot for him; let him then do theow-work, and let the wer abate for the kindred. measures and weights of goods for sale shall be correct. every man shall have a warrantor to his market transactions and no one shall buy and sell except in a market town; but he shall have the witness of the portreeve or of other men of credit, who can be trusted. moneyers accused of minting money outside a designated market were to go to the ordeal of the hot iron with the hand that was accused of doing the fraud. if he was found guilty, his hand that did the offense was to be struck off and be set up on the money- smithy. no marketing, business, or hunting may be done on sundays. no one may bind a freeman, shave his head in derision, or shave off his beard. shaving was a sign of enslavement, which could be incurred by not paying one's fines for offenses committed. no clergy may gamble or participate in games of chance. the laws for london were: " . the gates called aldersgate and cripplegate were in charge of guards. . if a small ship came to billingsgate, one half-penny was paid as toll; if a larger ship with sails, one penny was paid. ) if a hulk or merchantman arrives and lies there, four pence is paid as toll. ) from a ship with a cargo of planks, one plank is given as toll. ) on three days of the week toll for cloth [is paid] on sunday and tuesday and thursday. ) a merchant who came to the bridge with a boat containing fish paid one half-penny as toll, and for a larger ship one penny." - ) foreigners with wine or blubber fish or other goods and their tolls. foreigners were allowed to buy wool, melted sheep fat [tallow], and three live pigs for their ships. " . if the town-reeve or the village reeve or any other official accuses anyone of having withheld toll, and the man replies that he has kept back no toll which it was his legal duty to pay, he shall swear to this with six others and shall be quit of the charge. ) if he declares that he has paid toll, he shall produce the man to whom he paid it, and shall be quit of the charge. ) if, however, he cannot produce the man to whom he paid it, he shall pay the actual toll and as much again and five pounds to the king. ) if he vouches the tax-gatherer to warranty [asserting] that he paid toll to him, and the latter denies it, he shall clear himself by the ordeal and by no other means of proof. . and we [the king and his counselors] have decreed that a man who, within the town, makes forcible entry into another man's house without permission and commits a breach of the peace of the worst kind ... and he who assaults an innocent person on the king's highway, if he is slain, shall lie in an unhonored grave. ) if, before demanding justice, he has recourse to violence, but does not lose his life thereby, he shall pay five pounds for breach of the king's peace. ) if he values the good-will of the town itself, he shall pay us thirty shillings as compensation, if the king will grant us this concession." . no base coin or coin defective in quality or weight, foreign or english, may be used by a foreigner or an englishman. (in , a person found guilty of illicit coining was punished by loss of a hand.) - judicial procedure - there were courts for different geographical communities. the arrangement of the whole kingdom into shires was completed by after being united under king edgar. a shire was a larger area of land, headed by an earl. a shire reeve or "sheriff" represented the royal interests in the shires and in the shire courts. this officer came to be selected by the king and earl of the shire to be a judicial and financial deputy of the earl and to execute the law. the office of sheriff, which was not hereditary, was also responsible for the administration of royal lands and royal accounts. the sheriff summoned the freemen holding land in the shire, four men selected by each community or township, and all public officers to meet twice a year at their "shire-mote". actually only the great lords - the bishops, earls, and thegns - attended. the shire court was primarily concerned with issues of the larger landholders. here the freemen interpreted the customary law of the locality. the earl declared the secular law and the bishop declared the spiritual law. they also declared the sentence of the judges. the earl usually took a third of the profits, such as fines and forfeits, of the shire court, and the bishop took a share. in time, the earls each came to supervise several shires and the sheriff became head of the shire and assumed the earl's duties there, such as heading the county fyrd. the shire court also heard cases which had been refused justice at the hundred-mote and cases of keeping the peace of the shire. the hundred was a division of the shire, having come to refer to a geographical area rather than a number of households. the monthly hundred-mote could be attended by any freeman holding land (or a lord's steward), but was usually attended only by reeve, thegns, parish priest, and four representatives selected by each agrarian community or village - usually villeins. here transfers of land were witnessed. a reeve, sometimes the sheriff, presided over local criminal and peace and order issues ["leet jurisdiction", which derived from sac and soc jurisdiction] and civil cases at the hundred court. all residents were expected to attend the leet court. the sheriff usually held each hundred court in turn. the suitors to these courts were the same as those of the shire courts. they were the judges who declared the law and ordered the form of proof, such as compurgatory oath and ordeal. they were customarily thegns, often twelve in number. they, as well as the king and the earl, received part of the profits of justice. summary procedure was followed when a criminal was caught in the act or seized after a hue and cry. every freeman over age twelve had to be in a hundred and had to follow the hue and cry. "no one shall make distraint [seizure of personal property out of the possession of an alleged wrong-doer into the custody of the party injured, to procure a satisfaction for a wrong committed] of property until he has appealed for justice in the hundred court and shire court". in , king ethelred in a law code ordered the sheriff and twelve leading magnates of each shire to swear to accuse no innocent man, nor conceal any guilty one. this was the germ of the later assize, and later still the jury. the integrity of the judicial system was protected by certain penalties: for swearing a false oath, bot as determined by a cleric who has heard his confession, or, if he has not confessed, denial of burial in consecrated ground. also a perjurer lost his oath-worthiness. swearing a false oath or perjury was also punishable by loss of one's hand or half one's wergeld. a lord denying justice, as by upholding an evil-doing thegn of his, had to pay s. to the king for his disobedience. furthermore, if a lord protected a theow of his who had stolen, he had to forfeit the theow and pay his wer, for the first offense, and he was liable for all he property, for subsequent offenses. there was a bot for anyone harboring a convicted offender. if anyone failed to attend the gemot thrice after being summoned, he was to pay the king a fine for his disobedience. if he did not pay this fine or do right, the chief men of the burh were to ride to him, and take all his property to put into surety. if he did not know of a person who would be his surety, he was to be imprisoned. failing that, he was to be killed. but if he escaped, anyone who harbored him, knowing him to be a fugitive, would be liable pay his wer. anyone who avenged a thief without wounding anyone, had to pay the king s. as wite for the assault. "and if anyone is so rich or belongs to so powerful a kindred, that he cannot be restrained from crime or from protecting and harboring criminals, he shall be led out of his native district with his wife and children, and all his goods, to any part of the kingdom which the king chooses, be he noble or commoner, whoever he may be - with the provision that he shall never return to his native district. and henceforth, let him never be encountered by anyone in that district; otherwise he shall be treated as a thief caught in the act." this lawsuit between a son and his mother over land was heard at a shire-meeting: "here it is declared in this document that a shire- meeting sat at aylton in king cnut's time. there were present bishop aethelstan and earl ranig and edwin, the earl's son, and leofwine, wulfsige's son, and thurkil the white; and tofi the proud came there on the king's business, and bryning the sheriff was present, and aethelweard of frome and leofwine of frome and godric of stoke and all the thegns of herefordshire. then edwin, enneawnes son, came traveling to the meeting and sued his own mother for a certain piece of land, namely wellington and cradley. then the bishop asked whose business it was to answer for his mother, and thurkil the white replied that it was his business to do so, if he knew the claim. as he did not know the claim, three thegns were chosen from the meeting [to ride] to the place where she was, namely at fawley, and these were leofwine of frome and aethelsige the red and winsige the seaman, and when they came to her they asked her what claim she had to the lands for which her son was suing her. then she said that she had no land that in any way belonged to him, and was strongly incensed against her son, and summoned to her kinswoman, leofflaed, thurkil's wife, and in front of them said to her as follows: 'here sits leofflaed, my kinswoman, to whom, after my death, i grant my land and my gold, my clothing and my raiment and all that i possess.' and then she said to the thegns: 'act like thegns, and duly announce my message to the meeting before all the worthy men, and tell them to whom i have granted my land and all my property, and not a thing to my own son, and ask them to be witnesses of this.' and they did so; they rode to the meeting and informed all the worthy men of the charge that she had laid upon them. then thurkil the white stood up in the meeting and asked all the thegns to give his wife the lands unreservedly which her kinswoman had granted her, and they did so. then thurkil rode to st. aethelbert's minister, with the consent and cognizance of the whole assembly, and had it recorded in a gospel book." courts controlled by lords of large private estates had various kinds of jurisdiction recognized by the king: sac and soke [possession of legal powers of execution and profits of justice held by a noble or institution over inhabitants and tenants of the estate, exercised through a private court], toll [right to collect a payment on the sale of cattle and property] and team [right to hold a court to determine the honesty of a man accused of illegal possession of cattle], infangenetheof [the authority to judge and to hang and take the chattels of a thief caught on the property], and utfangenetheof [the authority to judge and to hand and take the chattels of a thief dwelling out of his liberty, and committing theft without the same, if he were caught within the lord's property]. some lords were even given jurisdiction over breach of the royal peace, ambush and treacherous manslaughter, harboring of outlaws, forced entry into a residence, and failure to answer a military summons. often this court's jurisdiction overlapped that of the hundred court and sometimes a whole hundred had passed under the jurisdiction of an abbot, bishop, or earl. a lord and his noble lady, or his steward, presided at this court. the law was administered here on the same principles as at the hundred court. judges of the leet of the court of a large private estate were chosen from the constables and four representatives selected from each community, village, or town. before a dispute went to the hundred court, it might be taken care of by the head tithing man, e;.g. cases between vills, between neighbors, and some compensations and settlements, namely concerning pastures, meadows, harvests, and contests between neighbors. the vill [similar to village] was the smallest community for judicial purposes. there were several vills in a hundred. in london, the hustings court met weekly and decided such issues as wills and bequests and commerce matters. the folk-mote of all citizens met three times a year. each ward had a leet court [for minor criminal matters]. the king and his witan decided the complaints and issues of the nobility and those cases which had not received justice in the hundred or shire court. the witan had a criminal jurisdiction and could imprison or outlaw a person. the witan could even compel the king to return any land he might have unjustly taken. specially punishable by the king was "oferhyrnesse": contempt of the king's law. it covered refusal of justice, neglect of summons to gemot or pursuit of thieves, disobedience to the king's offiers, sounding the king's coin, accepting another man's dependent without his leave, buying outside markets, and refusing to pay peter's pence. the forests were peculiarly subject to the absolute will of the king. they were outside the common law. their unique customs and laws protected the peace of the animals rather than the king's subjects. only special officials on special commissions heard their cases. the form of oaths for compurgation were specified for theft of cattle, unsoundness of property bought, and money owed for a sale. the defendant denied the accusation by sweating that "by the lord, i am guiltless, both in deed and counsel, and of the charge of which accuses me." a compurgator swore that "by the lord, the oath is clean and unperjured which has sworn.". a witness swore that "in the name of almighty god, as i here for in true witness stand, unbidden and unbought, so i with my eyes over-saw, and with my ears over-heard, that which i with him say." if a theow man was guilty at the ordeal, he was not only to give compensation, but was to be scourged thrice, or a second geld be given; and be the wite of half value for theows. - - - chapter - - - - the times: - - william came from normandy to conquer england. he claimed that the former king, edward, the confessor, had promised the throne to him when they were growing up together in normandy, if edward became king of england and had no children. the conquerer's men and horses came in boats powered by oars and sails. the conquest did not take long because of the superiority of his military expertise to that of the english. he organized his army into three groups: archers with bows and arrows, horsemen with swords and stirrups, and footmen with hand weapons. each group played a specific role in a strategy planned in advance. the english army was only composed of footmen with hand weapons such as spears and shields. they fought in a line holding up their shields to overlap each other ane form a shieldwall. the defeat of the english was thought to have been presaged by a comet. at westminster, he made an oath to defend god's holy churches and their rulers, to rule the whole people subject to him with righteousness and royal providence, to enact and hold fast right law, and to utterly forbid rapine and unrighteous judgments. this was in keeping with the traditional oath of a new king. declaring the english who fought against him to be traitors, the conquerer declared their land confiscated. but he allowed those who were willing to acknowledge him to redeem their land by a payment of money. as william conquered the land of the realm, he parceled it out among the barons who fought with him so that each baron was given the holdings of an anglo-saxon predecessor, scattered though they were. the barons again made oaths of personal loyalty to him [fealty]. they agreed to hold the land as his vassals with future military services to him and receipt of his protection. they gave him homage by placing their hands within his and saying "i become your man for the tenement i hold of you, and i will bear you faith in life and member [limb] and earthly honor against all men". they held their land "of their lord", the king, by knight's service. the king had "enfeoffed" them [given them a fief: a source of income] with land. the theory that by right all land was the king's and that land was held by others only at his gift and in return for specified service was new to english thought. the original duration of a knight's fee until about was for his life; thereafter it was heritable. the word "knight" came to replace the word "thegn" as a person who received his position and land by fighting for the king. the exact obligation of knight's service was to furnish a fully-armed horseman to serve at his own expense for forty days in the year. this service was not limited to defense of the country, but included fighting abroad. the baron led his own knights under his banner. the foot soldiers were from the fyrd or were mercenaries. every free man was sworn to join in the defense of the king, his lands and his honor, within england and without. the saxon governing class was destroyed. the independent power of earls, who had been drawn from three great family houses, was curtailed. most died or fled the country. some men were allowed to redeem their land by money payment if they showed loyalty to the conquerer. well-born women crowded into nunneries to escape norman violence. the people were deprived of their most popular leaders, who were excluded from all positions of trust and profit, especially all the clergy. the earldoms became fiefs instead of magistracies. the conquerer was a stern and fierce man and ruled as an autocrat by terror. whenever the people revolted or resisted his mandates, he seized their lands or destroyed the crops and laid waste the countryside and so that they starved to death. his rule was strong, resolute, wise, and wary because he had learned to command himself as well as other men. he was not arbitrary or oppressive. the conquerer had a strict system of policing the nation. instead of the anglo-saxon self-government throughout the districts and hundreds of resident authorities in local courts, he aimed at substituting for it the absolute rule of the barons under military rule so favorable to the centralizing power of the crown. he used secret police and spies and the terrorism this system involved. this especially curbed the minor barons and preserved the public peace. the english people, who outnumbered the normans by to , were disarmed. curfew bells were rung at : pm when everyone had to remain in their own dwellings on pain of death and all fires and candles were to be put out. this prevented any nightly gatherings, assassinations, or seditions. order was brought to the kingdom so that no man dare kill another, no matter how great the injury he had received. the conquerer extended the king's peace on the highways, i.e. roads on high ground, to include the whole nation. any individual of any rank could travel from end to end of the land unharmed. before, prudent travelers would travel only in groups of twenty. the barons subjugated the english who were on their newly acquired land. there began a hierarchy of seisin [rightful occupation] of land so that there could be no land without its lord. also, every lord had a superior lord with the king as the overlord or supreme landlord. one piece of land may be held by several tenures. for instance, a, holding by barons's service of the king, may enfeoff b, a church, to hold of him on the terms of praying for the souls of his ancestors, and b may enfeoff a freeman c to hold of the church by giving it a certain percentage of his crops every year. there were about barons who held land directly of the king. other fighting men were the knights, who were tenants or subtenants of a baron. knighthood began as a reward for valor on the field of battle by the king or a noble. the value of a knight's fee was s. [ pounds] per year. altogether there were about fighting men holding land. the essence of norman feudalism was that the land remained under the lord, whatever the vassal might do. the lord had the duty to defend the vassals on his land. the vassal owed military service to the lord and also the service of attending the courts of the hundred and the county [formerly "shire"], which were courts of the king, administering old customary law. they were the king's courts on the principle that a crime anywhere was a breach of the king's peace. the king's peace that had covered his residence and household had extended to places where he might travel, such as highways, rivers, bridges, churches, monasteries, markets, and towns, and then encompassed every place, replacing the general public peace. infraction of the king's peace incurred fines to the king. this feudal bond based on occupancy of land rather than on personal ties was uniform throughout the realm. no longer could a man choose his lord and transfer his land with him to a new lord. he held his land at the will of his lord, to be terminated anytime the lord decided to do so. a tenant could not alienate his land without permission of his lord. in later eras, tenancies would be held for the life of the tenant, and even later, for his life and those of his heirs. this uniformity of land organization plus the new requirement that every freeman take an oath of loyalty directly to the king to assist him in preserving his lands and honor and defending him against his enemies, which oath would supersede any oath to any other man, gave the nation a new unity. the king could call men directly to the fyrd, summon them to his court, and tax them without intervention of their lords. and the people learned to look to the king for protection from abuse by their lords. english villani, bordarii, cottarii, and servi on the land of the barons were subjugated into a condition of "villeinage" servitude and became "tied to the land" so that they could not leave the land without their lord's permission, except to go on a pilgrimage. the villeins formed a new bottom class as the population's percentage of slaves declined dramatically. they held their land of their lord, the baron. to guard against uprisings of the conquered people, the barons used villein labor to build about a hundred great stone castles, with moats and walls with towers around them, at easily defensible positions such as hilltops all over the nation. a castle could be built only with permission of the king. a typical castle had a stone building of about four floors [a keep] on a small, steep hill. later it also had an open area surrounded by a stone curtain-wall with towers at the corners. around the outside of the wall were ditches and banks and perhaps a moat. one traveled over these via a drawbridge let down at the gatehouse of the enclosing wall. on either side of the gatehouse were chambers for the guards. arrows could be shot through slits in the enclosing walls. inside the enclosed area might be stables, a granary, barracks for the soldiers, and workshops. the only winter feed was hay, for which the horses, breeding animals, milk-cow, and work-oxen had a priority over other animals. the bulk of the cattle were usually slaughtered and salted. the castle building typically was entered by an outer wood staircase to the guard room on the second floor. the first [ground] floor had a well and was used as a storehouse and/or dungeons for prisoners. the second floor had a two-storied great hall, with small rooms and aisles around it within the thick walls. there was also a chapel area on the second floor. there were small areas of the third floor which could be used for sleeping. the floors were wood and were reached by a spiral stone staircase in one corner of the building. sometimes there was a reservoir of water on an upper level with pipes carrying the water to floors below. each floor had a fireplace with a slanted flue going through the wall to the outside. there were latrines in the corner walls with a pit or shaft down the exterior of the wall, sometimes to the moat. furs and wool clothes were hung on the walls there in the summer to deter the moths. the first floor had only arrow slits in the walls, but the higher floors had small windows. some curtain-wall castles did not have a central building. in these, the hall was built along the inside of the walls, as were other continuous buildings. the kitchens and chapels were in the towers. lodgings were in buildings along the curtain-walls, or on several floors of the towers. the great hall was the main room of the castle. the hall was used for meals and meetings at which the lord received homages, recovered fees, and held the view of frankpledge [free pledge in latin], in which freemen agreed to be sureties for each other. at the main table, the lord and his lady sat on benches with backs or chairs. the table was covered first with a wool cloth that reached to the floor, and then by a smaller white linen cloth. everyone else sat on benches at trestle tables, which could be folded up, e.g. at night. over the main door were the family arms. on the upper parts of the walls could be foxskins and perhaps a polecat skin, and keepers' and huntsmen's poles. there were often hawk perches overhead. at the midday dinner, courses were ceremonially brought in to music, and ritual bows were made to the lord. the food at the head table was often tasted first by a servant as a precaution against poison. hounds, spaniels, and terriers lay near the hearth and cats, often with litters, nestled nearby. they might share in dinner, but the lord may keep a short stick near him to defend morsels he meant for himself. hunting, dove cotes, and carp pools provided fresh meat. fish was compulsory eating on fridays, on fast days, and during lent. cooking was done outside on an open fire, roasting on spits and boiling in pots. some spits were mechanized with a cogged wheel and a weight at the end of a string. other spits were turned by a small boy shielded from the heat by a wet blanket, or by dogs on a treadmill, or by a long handle. underneath the spit was a dripping pan to hold the falling juices and fat. mutton fat was used for candles. bread, pies, and pastry dishes were baked in an oven: a hole in a fireproof stone wall fitted with an iron door, in which wood was first burnt to heat the oven walls. it could also be used for drying fruit or melting tallow. fruits were also preserved in honey. salt was stored in a niche in the wall near the hearth and put on the table in a salt cellar which became more elaborate over the years. salt was very valuable and gave rise to the praise of a man as the salt of the earth. costly imported spices such as cinnamon, cloves, nutmeg, ginger, pepper, and a small quantity of sugar were kept in chests. pepper was always on the table to disguise the taste of tainted meat. drinks included wine, ale, cider from apples, perry from pears, and mead. people carried and used their own knives. there were no forks. spoons were of silver or wood. people also ate with their fingers and washed their hands before and after meals. it was impolite to dig into the salt bowl with a knife not previously wiped on bread or napkin, which was linen. it was unmannerly to wipe one's knife or one's greasy fingers on the tablecloth or, to use the tablecloth to blow one's nose. feasts were stately occasions with costly tables and splendid apparel. there were practical jokes, innocent frolics, and witty verbal debating with repartee. they played chess, checkers, and various games with cards and dice. most people could sing and some could play the lute. lighting of the hall at night was by oil lamps or candles on stands or on wall fixtures. for outside activities, a lantern [a candle shielded by a metal cage with panels of finely shaved horn: lant horn] was used. the residence of the lord's family and guests was at a screened off area at the extreme end of the hall or on a higher floor. chests stored garments and jewels. iron keys and locks were used for chests and doors. the great bed had a wooden frame and springs made of interlaced rope or strips of leather. it was covered with a feather mattress, sheets, quilts, fur covers, and pillows. drapery around the bed kept out cold drafts and provided privacy. there was a water bowl for washing in the morning. a chamber pot was kept under the bed for nighttime use. hay was used as toilet-paper. the lord's personal servants slept nearby on benches or trundle beds. most of the gentlemen servants slept communially in a "knight's chamber". the floor of the hall was strewn with straw, on which common folk could sleep at night. there were stools on which to sit. cup boards (boards on which to store cups) and chests stored spices and plate. one-piece iron shears were available to cut cloth. hand-held spindles were used for weaving; one hand held the spindle [a small stick weighted at one end] while the other hand alternately formed the thread and wound it around the spindle. on the roofs there were rampart walks for sentry patrols and parapets from which to shoot arrows or throw things at besiegers. each tenant of the demesne of the king where he had a castle had to perform a certain amount of castle- guard duty for its continuing defense. these knights performing castle-guard duty slept at their posts. bathing was done in a wooden tub located in the garden in the summer and indoors near the fire in winter. the great bed and tub for bathing were taken on trips with the lord. the entire household was of men, except for the lord's lady with a few lady companions; otherwise the entire household was of men. the ladies rode pillion [on a cushion behind the saddle] or in litters suspended between two horses. markets grew up outside castle walls. any trade on a lord's land was subject to "passage", a payment on goods passing through, "stallage", a payment for setting up a stall or booth in a market, and "pontage", a payment for taking goods across a bridge. the norman man was clean-shaven on his face and around his ears and at the nape of the neck. his hair was short. he wore a long- sleeved under-tunic of linen or wool that reached to his ankles. over this the norman noble wore a tunic without sleeves, open at the sides, and fastened with a belt. over one shoulder was his cloak, which was fastened on the opposite shoulder by being drawn through a ring brooch and knotted. he wore tight thick cloth stockings to protect him from the mud and leather shoes. common men wore durable, but drab, wool tunics to the knee so as not to impede them in their work. they could roll up their stockings when working in the fields. a lady also wore a high-necked, long- sleeved linen or wool tunic fitted at the waist and laced at the side, but full in the skirt, which reached to her toes. she wore a jeweled belt, passed twice around her waist and knotted in front. her hair was often in two long braids, and her head and ears covered with a white round cloth held in place by a metal circlet like a small crown. its ends were wound around her neck. in winter, she wore over her tunic a cloak edged or lined with fur and fastened at the front with a cord. clothes of both men and ladies were brightly colored by dyes or embroidery. the norman knight wore an over-tunic of leather or heavy linen on which were sewn flat rings of iron and a conical iron helmet with nose cover. he wore a sword at his waist and a metal shield on his back, or he wore his sword and his accompanying retainers carried spear and shield. norman customs were adopted by the nation. as a whole, anglo-saxon men shaved their beards and whiskers from their faces, but they kept their custom of long hair flowing from their heads. but a few kept their whiskers and beards in protest of the normans. everyone had a permanent surname indicating parentage, place of birth, or residence, such as field, pitt, lane, bridge, ford, stone, burn, church, hill, brook, green. other names came from occupations such as shepherd, carter, parker, fowler, hunter, forester, smith. still other came from personal characteristics such as black, brown, and white, short, round, and long. some took their names from animals such as wolf, fox, lamb, bull, hogg, sparrow, crow, and swan. others were called after the men they served, such as king, bishop, abbot, prior, knight. a man's surname was passed on to his son. those few coerls whose land was not taken by a baron remained free and held their land "in socage" and became known as sokemen. they were not fighting men, and did not give homage, but might give fealty, i.e. fidelity. many free sokemen were caught up in the subjugation by baron landlords and were reduced almost to the condition of the unfree villein. the services they performed for their lords were often indistinguishable. they might also hold their land by villein tenure, although free as a person with the legal rights of a freeman. the freeman still had a place in court proceedings which the unfree villein did not. great stone cathedrals were built in fortified towns for the conquerer's norman bishops, who replaced the english bishops. most of the existing and new monasteries functioned as training grounds for scholars, bishops, and statesmen rather than as retreats from the world's problems to the security of religious observance. the number of monks grew as the best minds were recruited into the monasteries. the conquerer made the church subordinate to him. bishops were elected only subject to the king's consent. the bishops had to accept the status of barons. homage was exacted from them before they were consecrated, and fealty and an oath afterward. the conquerer imposed knight's service on bishoprics, abbeys, and monasteries, which was usually commuted to a monetary amount. bishops had to attend the king's court. bishops could not leave the realm without the king's consent. no royal tenant or royal servant could be excommunicated, nor his lands be placed under interdict, without the king's consent. interdict could demand, for instance, that the church be closed and the dead buried in unconsecrated ground. no church rules could be made without his agreement to their terms. no letters from the pope could be received without the king's permission. the archbishop of canterbury was still recognized as a primary advisor to the king. over the years, the selection for this office frequently became a source of contention among king, pope, and clergy. men continued to give land to the church for their souls, such as this grant which started the town of sandwich: "william, king of the english, to lanfranc the archbishop and hugoni de montfort and richard son of earl gilbert and haimo the sheriff and all the thegns of kent, french and english, greeting. know ye that the bishop of bayeux my brother for the love of god and for the salvation of my soul and his own, has given to st. trinity all houses with their appurtenances which he has at sandwich and that he has given what he has given by my license." many private owners of churches gave them to cathedrals or monastic communities, partly to ensure their long-term survival, and partly because of church pressure. when the land was all divided out, the barons had about / of it and the church about / . most of the barons had been royal servants. the king retained about / , including forests for hunting, for himself and his family and household, on which he built many royal castles and hundreds of manor [large private estate headed by a lord] houses throughout the nation. he built the massive white tower in london. it was tall with four turrets on top, and commanded a view of the river and bridge, the city and the surrounding countryside. the only windows were slits from which arrows could be shot. on the fourth and top floor was the council chamber and the gallery of the chapel. on the third floor was the banqueting hall, the sword room, and the chapel. the king and his household slept in apartments on these upper floors. stairs went up to the gateway entrance on the second floor, which were hidden by a wall. the garrison's barracks were on the first floor (ground floor). any prisoners were kept in cells at a level below the first floor. the other castles were often built at the old fortification burhs of alfred. each had a constable in charge, who was a baron. barons and earls had castle-guard duty in the king's castles. the conquerer was constantly moving about the land among his and his barons' castles, where he met with his magnates and conducted public business, such as deciding disputes about holding of land. near his own castles and other of his property, he designated many areas as royal hunting forests. anyone who killed a deer in these forests was mutilated, for instance by blinding. people living within the boundaries of the designated forestland could no longer go into nearby woods to get meat or honey, dead wood for firing, or live wood for building. swineherds could no longer drive pigs into these woods to eat acorns they beat down from oak trees. making clearings and grazing livestock in the designated forestland were prohibited. most of the nation was either wooded or bog at this time. london was a walled town of one and two story houses made of mud, twigs, and straw, with thatched roofs. it included a bundle of communities, townships, parishes, and lordships. there were churches, a goods market, a fish market, quays on the river, and a bridge over the river. streets probably named by this time include bread street, milk street, honey lane, wood street, and ironmonger lane. fairs and games were held outside the town walls in a field called "smithfield". the great citizens had the land qualifications of knights and ranked as barons on the conquerer's council. the freemen were a small percentage of london's population. there was a butchers' guild, a pepperers' guild, a goldsmiths' guild, the guild of st. lazarus, which was probably a leper charity (of which there were many in the s and s), the pilgrims' guild, which helped people going on pilgrimages, and four bridge guilds, probably for keeping the wooden london bridge in repair. men told the time by sundials, some of which were portable and could be carried in one's pocket. london could defend itself, and a ringing of the bell of st. paul's church could shut every shop and fill the streets with armed horsemen and soldiers led by a soldier portreeve. across the thames from london on its south side was southwark, a small trading and fishing settlement. the conquerer did not interfere with landholding in london, but recognized its independence as a borough in this writ: "william the king greets william, bishop of london, and gosfrith the portreeve, and all the burgesses [citizens] of london friendly. know that i will that you be worthy of all the laws you were worthy of in the time of king edward. and i will that every child shall be his father's heir after his father's day. and i will not suffer any man to do you wrong. god preserve you." the norman word "mayor" replaced "portreeve". so london was not subjected to the norman feudal system. it had neither villeins nor slaves. whenever kings asserted authority over it, the citizens reacted until the king "granted" a charter reaffirming the freedoms of the city and its independence. under pressure from the ecclesiastical judges, the conquerer replaced the death penalty by that of the mutilation of blinding, chopping off hands, and castrating offenders. castration was the punishment for rape. but these mutilations usually led to a slow death by gangrene. the normans used the anglo-saxon concepts of jurisdictional powers. thus when the conquerer confirmed "customs" to the abbot of ely, these were understood to include the following: ) sac and soke - the right to hold a court of private jurisdiction and enjoy its profits, ) toll - a payment in towns, markets, and fairs for goods and chattel bought and sold, ) team - persons might be vouched to warranty in the court, the grant of which made a court capable of hearing suits arising from the transfer of land, ) infangenthef - right of trying and executing thieves on one's land, ) hamsocne, ) grithbrice - violation of the grantees' special peace, for instance that of the sheriff, ) fightwite - fine for a general breach of the peace, ) fyrdwite - fine for failure to appear in the fyrd. every shire, now called "county", had at least one burh, or defensible town. kings had appointed a royal moneyer in each to mint silver coins such as pennies for local use. on one side was the king's head in profile and on the other side was the name of the moneyer. when a new coinage was issued, all moneyers had to go to london to get the new dies. the conquerer's head faced frontally on his dies, instead of the usual profile used by former kings. the conquerer held and presided over his council three times a year, as was the custom, at easter, christmas, and whitsuntide, which coincided with the great christian festivals. this was an advisory council and consisted of the conquerer's wife and sons, earls, barons, knights, officers of the king's household, archbishops, and bishops. it replaced the witen of wise men. it dealt with fundamental matters of law, state, war, and church. its functions were largely ceremonial. earldoms and knighthoods were conferred and homages to the king were witnessed. bishops were nominated. attendance at the council, like attendance at courts, was regarded as a burden rather than a privilege. the conquerer's will was the motive force which under lay all the council's action. when it was administering royal justice, it was called the royal court.. the justiciar was the head of all legal matters and he or the conquerer's wife represented the king at the royal court in his absence from the realm. the chamberlain was a financial officer of the household; his work was rather that of auditor or accountant. the chancellor headed the chancery and the chapel. other household offices were steward, butler, constable, and marshall. the treasurer was responsible for the collection and distribution of revenue and was the keeper of the royal treasure at the palace at winchester. he was also an important member of the household and sat in the exchequer at westminster, where he received the accounts of the sheriffs. the exchequer was composed of the justiciar as head, the chancellor, the constable, two chamberlains, the marshall and other experienced councilors. the word "exchequer" came from the chequered cloth on the table used to calculate in roman numerals the amount due and the amount paid. the word "calculate" derives from the word "calculi", meaning peebles. it was a kind of abacus. the exchequer received yearly from the sheriffs of the counties taxes, fines, treasure trove, goods from wrecks, deodands, and movable property of felons, of persons executed, of fugitives, and of outlaws due to the crown. the conqueror presided yearly over feasts involving several thousand guests at westminster hall, which was feet by feet with a high ceiling, the largest hall in england. the conquerer's reign was a time of tentative expedients and simple solutions. he administered by issuing writs with commands or prohibitions. these were read aloud by the sheriffs in the county courts and other locations. administration was by the personal servants of his royal household, such as the chancellor, chamberlain, constable, marshalls, steward, and butler. the language of government changed to latin. the chancellor was from the clergy and supervised the writers and clerks, who were literate, and appended the great seal before witnesses to documents. he also headed the staff of the royal chapel. the chamberlain was a financial officer who audited and accounted. the constable was responsible for supplies for the knights of the royal household. he also supervised the care of horses, hounds, hawks, and huntsmen, houndsmen, and foresters. the marshalls came from less important families than the constable and they preserved order in the king's hall and recorded expenditures of the household officers on tallies. the steward was a great baron whose duties were chiefly ceremonial, such as placing the dishes before the king at banquets. sheriffs became powerful figures as the primary agents for enforcing royal edicts. there was no longer supervision of them by earls nor influence on them by bishops. they were customarily prominent barons. they collected the royal taxes, executed royal justice, and presided over and controlled the hundred and county courts. they were responsible for remitting a certain sum annually. if a sheriff received more than necessary, he retained the difference as his lawful profit of office. if he received less than necessary, he had to make up the difference from his own pocket. before rendering theis account, he paid the royal benefactions to religious houses, provided for the maintenance of stock on crown lands, paid for the costs of provisions supplied to the court, and paid for travelling expenses of the king and his visitors. the payments were initially paid in kind: e.g. grain, cattle, horses, hounds, and hawks. sheriffs also took part in the keeping of castles and often managed the estates of the king. most royal writs were addressed to the sheriff and county courts. they also led the county militia in time of war or rebellion. at times, a sheriff usurped royal rights, used royal estates for his own purposes, encroached on private land and rights, extorted money, and collected revenues only for his own pockets. over the centuries, there was much competition for the authority to select the king, e.g. by the king, the county court, the barons, and the exchequer. there was also much pressure to limit his term to one year. also, the powers of the sheriffs slowly declined. royal income came from customary dues, profits of coinage and of justice, and revenues from the king's own estates. for war, there was no change in the custom that a man with five hides of land was required to furnish one heavy-armed horseman for forty days service in a year. the fyrd was retained. a threat of a viking invasion caused the conquerer to reinstate the danegeld tax at s. per hide, which was three times its old rate. (the price of an ox was still about d.) to impose this tax uniformly, he sent commissioners to conduct surveys by sworn verdicts of appointed groups of local men. a detailed survey of land holdings and the productive worth of each was made in . the english called it the "doomsday book" because there was no appeal from it. the survey revealed, for instance, that one estate had "on the home farm five plough teams: there are also villeins and cotters with teams among them. there is a mill worth s. a year and one fishery, a church and four acres of meadow, wood for pigs and two stone quarries, each worth s. a year, and two nests of hawks in the wood and slaves." this estate was deemed to be worth s. a year. laxton "had carucates of land [assessed] to the geld. [there is] land for ploughs. there walter, a man of [the lord] geoffrey alselin's has plough and villeins and bordars [a bordar had a cottage and a small amount land in return for supplying small provisions to his lord] having ploughs and serfs and female serf and acres of meadow. wood [land] for pannage [foraging by pigs] league in length and half a league in breadth. in king edward's time it was worth pounds; now [it is worth] pounds." ilbert de laci has now this land, where he has twelve ploughs in the demesne; and forty-eight villani, and twelve bordars with fifteen ploughs, and three churches and three priests, and three mills of ten shillings. wood pastures two miles long, and one broad. the whole manor five miles long and two broad. value in king edward's time sixteen pounds, the same now. that manor of the town of coventry which was individually held was that of the countess of coventry, who was the wife of the earl of mercia. "the countess held in coventry. there are hides. the arable land employs ploughs. in the demesne lands there are ploughs and bondmen. there are villeins and bordars with ploughs. the mill there pay[s] shillings. the woodlands are miles long and the same broad. in king edward's time and afterwards, it was worth pounds [ s.], now only pounds by weight. these lands of the countess godiva nicholas holds to farm of the king." the survey shows a few manors and monasteries owned a salt-house or salt-pit in the local saltworks, from which they were entitled to obtain salt. in total there were about , villani [former coerls regarded as customary, irremovable cultivator tenants]; , bordarii; , cotarii and cotseti [held land by service of labor or rent paid in produce], and , servi [landless laborers]. there are no more theows. in the nation, there was a total of about , servi [landless laborers], over , borderii, nearly , coatarii and cotseti [held land or houses by service of labor or rent paid in produce], and nearly , villani. this survey resulted in the first national tax system of about s. per hide of land. the survey also provided the conquerer with a summary of customs of areas. for instance, in oxfordshire, "anyone breaking the king's peace given under his hand and seal to the extent of committing homicide shall be at the king's mercy in respect of his life and members. that is if he be captured. and if he cannot be captured, he shall be considered as an outlaw, and anyone who kills him shall have all his possessions. the king shall take the possessions of any stranger who has elected to live in oxford and who dies in possession of a house in that town, and without any kinfolk. the king shall be entitled to the body and the possessions of any man who kills another within his own court or house excepting always the dower of his wife, if he has a wife who has received dower. the courts of the king and barons became schools of chivalry wherein seven year old noble boys became as pages or valets, wore a dagger and waited upon the ladies of the household. at age fourteen, they were advanced to squires and admitted into more familiar association with the knights and ladies of the court. they perfected their skills in dancing, riding, fencing, hawking, hunting, jousting, and engaged in team sports in which the goal was to put the other side to rout. they learned the knightly art of war. enemy fighters were to be taken and held for ransom rather than killed. those engaging in rebellion were to be pardoned and restored to some or all of their lands and titles. lords' sons could be mutually exchanged with an enemy's as security for peace. after achieving knighthood, a man usually selected a wife from the court at which he grew up. parents tried to send their daughters to a household superior in social status not only to learn manners, but to make a good marriage. a girl who did not marry was often sent to a nunnery; a dowry was necessary before her acceptance. the following incidents of land tenure began (but were not firmly established until the reign of henry ii). each tenant, whether baron or subtenant, was to pay an "aid" in money for ransom if his lord was captured in war, for the knighthood of his lord's eldest son, and for the marriage of his lord's eldest daughter. the aid was theoretically voluntary. land could be held by an heir only if he could fight. the eldest son began to succeed to the whole of the lands in all military tenures. younger sons of great houses became bishops. an heir of a tenant had to pay a heavy "relief" on succession to his estate. the relief replaced the heriot. if there was a delay in proving heirship or paying relief, the lord would hold the land and receive its income in the meantime, often a year. if an heir was still a minor or female, he or she passed into his lord's wardship, in which the lord had guardianship of the heir and possession of the estate, with all its profits. the mother was not made a minor's guardian. no longer was the estate protected by the minor's kin as his birthright. a female heir was expected to marry a man acceptable to the lord. the estate of an heiress and her land was generally sold to the highest bidder. if there were no heirs, the land escheated to the lord. if a tenant committed felony, his land escheated to his lord. the word "felony" came from the latin word meaning "to deceive" and referred to the feudal crime of betraying or committing treachery against one's lord. astrologers resided with the families of the barons. people went to fortune tellers' shops. there was horse racing, steeple races, and chess for recreation. girls had dolls; boys had toy soldiers, spinning tops, toy horses, ships, and wooden models. the state of medicine is indicated by this medical advice brought to the nation by william's son after treatment on the continent: "if thou would have health and vigor shun cares and avoid anger. be temperate in eating and in the use of wine. after a heavy meal rise and take the air sleep not with an overloaded stomach and above all thou must respond to nature when she calls." the conquerer allowed jewish traders to follow him from normandy and settle in separate sections of the main towns. then engaged in long-distance trade, money-changing, and money-lending. they loaned money for interest for the building of castles and cathedrals. christians were not allowed by the church to engage in this usury. the jews could not become citizens nor could they have standing in the local courts. instead, a royal justiciar secured justice for them. they could practice their own religion. william the conquerer was succeeded as king by his son william ii (rufus), who transgressed many of the customs of the nation to get more money for himself. he was killed by an arrow of a fellow hunter while they and william's younger brother henry were hunting together in a crown forest. henry then became king. - the law - the norman conquerors brought no written law, but affirmed the laws of the nation. two they especially enforced were: anyone caught in the act of digging up the king's road, felling a tree across it, or attacking someone so that his blood spilled on it shall pay a fine to the king. all freemen shall have a surety who would hand him over to justice for his offenses or pay the damages or fines due. if an accused man fled, his surety would have a year to find him to obtain reimbursement. the conquerer proclaimed that: no cattle shall be sold except in towns and before three witnesses. for the sale of ancient chattels, there must be a surety and a warrantor. no man shall be sold over the sea. (this ended the slave trade at the port of bristol.) the death penalty for persons tried by court is abolished. - judicial procedure - "ecclesiastical" courts were created for bishops to preside over cases concerning the cure of souls and criminal cases, in which the ordeal was used. when the conquerer did not preside over this court, an appeal could be made to him. the hundred and county courts now sat without clergy and handled only "civil" cases. they were conducted by the king's own appointed sheriff. only freemen and not bound villeins had standing in this court. they continued to transact their business in the english language. the local jurisdictions of thegns who had grants of sac and soke or who exercised judicial functions among their free neighbors were now called "manors" under their new owners, who conducted a manor court. the conquerer's royal court was called the "curia regis". when the conquerer wished to determine the national laws, he summoned twelve elected representatives of each county to declare on oath the ancient lawful customs and law as they existed in the time of the popular king edward the confessor. the recording of this law was begun. a person could spend months trying to catch up with the royal court to present a case. sometimes the conquerer sent the justiciar or commissioners to hold his royal court in the various districts. the commissioner appointed groups of local men to give a collective verdict upon oath for each trial he conducted. the conquerer allowed, on an ad hoc basis, certain high-level people such as bishops and abbots and those who made a large payment, to have land disputes decided by an inquiry of recognitors. besides royal issues, the curia regis heard appeals from lower court decisions. it used english, norman, feudal, roman, and canon law legal principles to reach a decision, and was flexible and expeditious. a dispute between a norman and an english man over land or a criminal act could be decided by trial by combat [battle]. each combatant first swore to the truth of his cause and undertook to prove by his body the truth of his cause by making the other surrender by crying "craven" [craving forgiveness]. the combatants used weapons like pick-axes and shields. presumably the man in the wrong would not fight as well because he was burdened with a guilty conscience. although this trial was thought to reflect god's will, it favored the physically fit and adept person. after losing the trial by combat, the guilty person would be punished appropriately. london had its own traditions. all london citizens met at its folkmoot, which was held three times a year to determine its public officers, to raise matters of public concern, and to make ordinances. its criminal court had the power of outlawry as did the county courts. trade, land, and other civil issues were dealt with by the hustings court, which met every monday in the guildhall. the city was divided into wards, each of which was under the charge of an elected alderman [elder man]. (the election was by a small governing body and the most wealthy and reputable men and not a popular election.) the aldermen had special knowledge of the law and a duty to declare it at the hustings court. each alderman also conducted wardmoots in his ward and decided criminal and civil issues between its residents. within the wards were the guilds of the city. the normans, as foreigners, were protected by the king's peace. the entire hundred was the ultimate surety for murder and would have to pay a "murdrum" fine of pounds [ marks] for the murder of any norman, if the murderer was not apprehended by his lord within a few days. the reaction to this was that the murderer mutilated the corpse to make identification of ethnicity impossible. so the conquerer ordered that every murder victim was assumed to be norman unless proven english. this began a court custom in murder cases of first proving the victim to be english. the royal court decided this case: "at length both parties were summoned before the king's court, in which there sat many of the nobles of the land of whom geoffrey, bishop of coutances, was delegated by the king's authority as judge of the dispute, with ranulf the vicomte, neel, son of neel, robert de usepont, and many other capable judges who diligently and fully examined the origin of the dispute, and delivered judgment that the mill ought to belong to st. michael and his monks forever. the most victorious king william approved and confirmed this decision." - - - chapter - - - - the times: - - king henry i, son of william the conquerer, furthered peace between the normans and native english by his marriage to a niece of king edward the confessor called matilda. she married him on condition that he grant a charter of rights undoing some practices of the past reigns of william i and william ii. peace was also furthered by the fact that henry i had been born in england and english was his native tongue. the private wars of lords were now replaced by less serious mock battles. henry was a shrewd judge of character and of the course of events, cautious before taking action, but decisive in carrying out his plans. he was faithful and generous to his friends. he showed a strong practical element of calculation and foresight. although illiterate, he was intelligent and a good administrator. he had an efficient intelligence gathering network and an uncanny knack of detecting hidden plans before they became conspiratorial action. he made many able men of inferior social position nobles, thus creating a class of career judges and administrators in opposition to the extant hereditary aristocracy. he loved books and built a palace at oxford to which he invited scholars for lively discussion. queen matilda served as regent of the kingdom in henry's absence, as william's queen had for him. both queens received special coronation apart from their husbands; they held considerable estates which they administered through their own officers, and were frequently composed of escheated honors. matilda was learned and a literary patron. she founded an important literary and scholastic center. her compassion was great and her charities extensive. in london she founded several almshouses and a care- giving infirmary for lepers. these were next to small monastic communities. she also had new roads and bridges built. henry issued charters restoring customs which had been subordinated to royal impositions by previous kings, which set a precedent for later kings. his coronation charter describes certain property rights he restored after the oppressive reign of his brother. "henry, king of the english, to samson the bishop, and urse of abbetot, and to all his barons and faithful vassals, both french and english, in worcestershire, greeting. [ .] know that by the mercy of god and by the common counsel of the barons of the whole kingdom of england i have been crowned king of this realm. and because the kingdom has been oppressed by unjust exactions, i now, being moved by reverence towards god and by the love i bear you all, make free the church of god; so that i will neither sell nor lease its property; nor on the death of an archbishop or a bishop or an abbot will i take anything from the demesne of the church or from its vassals during the period which elapses before a successor is installed. i abolish all the evil customs by which the kingdom of england has been unjustly oppressed. some of those evil customs are here set forth. [ .] if any of my barons or of my earls or of any other of my tenants shall die his heir shall not redeem his land as he was wont to do in the time of my brother [william ii (rufus)], but he shall henceforth redeem it by means of a just and lawful 'relief`. similarly the men of my barons shall redeem their lands from their lords by means of a just and lawful 'relief`. [ .] if any of my barons or of my tenants shall wish to give in marriage his daughter or his sister or his niece or his cousin, he shall consult me about the matter; but i will neither seek payment for my consent, nor will i refuse my permission, unless he wishes to give her in marriage to one of my enemies. and if, on the death of one of my barons or of one of my tenants, a daughter should be his heir, i will dispose of her in marriage and of her lands according to the counsel given me by my barons. and if the wife of one of my tenants shall survive her husband and be without children, she shall have her dower and her marriage portion [that given to her by her father], and i will not give her in marriage unless she herself consents. [ .] if a widow survives with children under age, she shall have her dower and her marriage portion, so long as she keeps her body chaste; and i will not give her in marriage except with her consent. and the guardian of the land, and of the children, shall be either the widow or another of their relations, as may seem more proper. and i order that my barons shall act likewise towards the sons and daughters and widows of their men. [ .] i utterly forbid that the common mintage [a forced levy to prevent loss to the king from depreciation of the coinage], which has been taken from the towns and counties, shall henceforth be levied, since it was not so levied in the time of king edward [the confessor]. if any moneyer or other person be taken with false money in his possession, let true justice be visited upon him. [ .] i forgive all pleas and all debts which were owing to my brother [william ii], except my own proper dues, and except those things which were agreed to belong to the inheritance of others, or to concern the property which justly belonged to others. and if anyone had promised anything for his heritage, i remit it, and i also remit all 'reliefs' which were promised for direct inheritance. [ .] if any of my barons or of my men, being ill, shall give away or bequeath his movable property, i will allow that it shall be bestowed according to his desires. but if, prevented either by violence or through sickness, he shall die intestate as far as concerns his movable property, his widow or his children, or his relatives or one his true men shall make such division for the sake of his soul, as may seem best to them. [ .] if any of my barons or of my men shall incur a forfeit, he shall not be compelled to pledge his movable property to an unlimited amount, as was done in the time of my father [william i] and my brother; but he shall only make payment according to the extent of his legal forfeiture, as was done before the time of my father and in the time of my earlier predecessors. nevertheless, if he be convicted of breach of faith or of crime, he shall suffer such penalty as is just. [ .] i remit all murder-fines which were incurred before the day on which i was crowned king; and such murder-fines as shall now be incurred shall be paid justly according to the law of king edward [by sureties]. [ .] by the common counsel of my barons i have retained the forests in my own hands as my father did before me. [ .] the knights, who in return for their estates perform military service equipped with a hauberk [long coat] of mail, shall hold their demesne lands quit of all gelds [money payments] and all work; i make this concession as my own free gift in order that, being thus relieved of so great a burden, they may furnish themselves so well with horses and arms that they may be properly equipped to discharge my service and to defend my kingdom. [ .] i establish a firm peace in all my kingdom, and i order that this peace shall henceforth be kept. [ .] i restore to you the law of king edward together with such emendations to it as my father [william i] made with the counsel of his barons. [ .] if since the death of my brother, king william [ii], anyone shall have seized any of my property, or the property of any other man, let him speedily return the whole of it. if he does this no penalty will be exacted, but if he retains any part of it he shall, when discovered, pay a heavy penalty to me. witness: maurice, bishop of london; william, bishop-elect of winchester; gerard, bishop of herefore; henry the earl; simon the earl; walter giffard; robert of montfort-sur-risle; roger bigot; eudo the steward; robert, son of haimo; and robert malet. at london when i was crowned. farewell." henry took these promises seriously, which resulted in peace and justice. royal justice became a force to be reckoned with by the multiplication of justices. henry had a great respect for legality and the forms of judicial action. he became known as the "lion of justice". the payment of queen's gold, that is of a mark of gold to the queen out of every hundred marks of silver paid, in the way of fine or other feudal incident, to the king, probably dates from henry i's reign. a woman could inherit a fief if she married. the primary way for a man to acquire control of land was to marry an heiress. if a man were in a lower station than she was, he had to pay for his new social status as well as have royal permission. a man could also be awarded land which had escheated to the king. if a noble woman wanted to hold land in her own right, she had to make a payment to the king. many widows bought their freedom from guardianship or remarriage from the king. women whose husbands were at war also ran the land of their husbands. barons were lords of large holdings of farmland called "manors". many of the lesser barons left their dark castles to live in semi- fortified stone houses, which usually were of two rooms with rug hangings for drafts, as well as the sparse furniture that had been common to the castle. there were shuttered windows to allow in light, but which also let in the wind and rain when open. the roof was of thatch or narrow overlapping wood shingles. the stone floor was strewn with hay and there was a hearth near the center of the floor, with a louvered smoke hole in the timber roof for escape of smoke. there were barns for grain and animals. beyond this area was a garden, orchard, and sometimes a vineyard. the area was circumscribed by a moat over which there was a drawbridge to a gatehouse. the smaller room was the lord and lady's bedroom. it had a canopied bed, chests for clothing, and wood frames on which clothes could be hung. life on the manor revolved around the larger room, or hall, where the public life of the household was passed. there, meals were served. the daily diet typically consisted of milk, soup, porridge, fish, vegetables, and bread. open hospitality accompanied this communal living. there was little privacy. manor household villeins carried the lord's sheaves of grain to the manor barn, shore his sheep, malted his grain, and chopped wood for his fire. at night some slept on the floor of the hall. others, who were cottars and bordars, had their own dwellings nearby. the manor house of lesser lords or knights was still built of wood, although it often had a stone foundation. about % of the land was arable land, about % was common pasture land (for grazing only) or meadow land (near a stream or river and used for hay or grazing), and about % was woodland. there were these types of land and wasteland on each manor. the arable land was allotted to the villeins in strips to equalize the best and worst land and their distance from the village where the villeins lived. there was three-way rotation of wheat or rye, oats or barley, and fallow land. cows, pigs, sheep, and fowl were kept. the meadow was allocated for hay for the lord's household and each villein's. the villeins held land of their lord for various services such as agricultural labor or raising domestic animals. the villeins worked about half of their time on their lord's fields [his demesne land], which was about a third of the farmland. this work was primarily to gather the harvest and to plough with oxen, using a yoke over their shoulders, and to sow in autumn and lent. they threshed grain on barn floors with flails cut from holly or thorn, and removed the kernels from the shafts by hand. work lasted from sunrise to sunset and included women and children. the older children could herd geese and pigs, and set snares for rabbits. the young children could gather nuts and berries in season and other wild edibles, and could pick up little tufts of wool shed by sheep. the old could stay in the hut and mind the children, keep the fire going and the black pot boiling, sew, spin, patch clothes, and cobble shoes. the old often suffered from rheumatism. many people had bronchitis. many children died of croup [inflammation of the respiratory passages]. life expectancy was probably below thirty-five. the villein retained his customary rights, his house and land and rights of wood and hay, and his right in the common land of his township. customary ways were maintained. the villeins of a manor elected a reeve to communicate their interests to their lord, usually through a bailiff, who directed the labor. sometimes there was a steward in charge of several of a lord's manors, who also held the manorial court for the lord. the steward held his land of the lord by serjeanty, which was a specific service to the lord. other serjeanty services were carrying the lord's shield and arms, finding attendants and esquires for knights, helping in the lord's hunting expeditions, looking after his hounds, bringing fuel, doing carpentry, and forging irons for ploughs. the woodward preserved the timber. the messer supervised the harvesting. the hayward removed any fences from the fields after harvest to allow grazing by cattle and sheep. the coward, bullard, and calvert tended the cows, bulls, and calves; the shepherd, the sheep; and the swineherds the pigs. the ponder impounded stray stock. there were varieties of horses: war horses, riding horses, courier horses, pack horses, and plough horses. the majority of manors were co-extensive with a single village. the villeins lived in the village in one-room huts enclosed by a wood fence, hedge, or stone wall. in this yard was a garden of onions, leeks, mustard, peas, beans, parsley, garlic, herbs, and cabbage and apple, pear, cherry, quince, and plum trees, and bee- hives. the hut had a high-pitched roof thatched with reeds or straw and low eaves reaching almost to the ground. the walls are built of wood-framing overlaid with mud or plaster. narrow slits in the walls serve as windows, which have shutters and are sometimes covered with coarse cloth. the floor is dirt and may be covered with straw or rushes for warmth, but usually no hearth. in the middle is a wood fire burning on a hearthstone, which was lit by making a spark by striking flint and iron together. the smoke rose through a hole in the roof. at one end of the hut was the family living area, where the family ate on a collapsible trestle table with stools or benches. their usual food was beans and peas, oatmeal gruel, butter, cheese, vegetables, honey, rough bread made from a mixture of wheat, barley, and rye flour, herrings or other salt fish, and some salted or smoked bacon. butter had first been used for cooking and as a medicine to cure constipation and for puny children it could be salted down for the winter. the bread had been roasted on the stones of the fire; later there were communal ovens set up in villages. cooking was done over the fire by boiling in iron pots hung from an iron tripod, or sitting on the hot stones of the fire. they ate from wood bowls using a wood spoon. when they had fresh meat, it could be roasted on a spit. liquids were heated in a kettle. with drinking horns, they drank water, milk, buttermilk, apple cider, mead, ale made from barley malt, and bean and vegetable broth. they used jars and other earthenware, e.g. for storage of salt. they slept on straw mattresses or sacks on the floor or on benches. the villein regarded his bed area as the safest place in the house, as did people of all ranks, and kept his treasures there, which included his farm implements, as well as hens on the beams, roaming pigs, and stalled oxen, cattle, and horses, which were at the other end of the hut. fires were put out at night to guard against fire burning down the huts. the warmth of the animals then helped make the hut warm. around the room are a couple of chests to store salt, meal, flour, a broom made of birch twigs, some woven baskets, the distaff and spindle for spinning, and a simple loom for weaving. all clothes were homemade. they were often coarse, greasy wool and leather made from their own animals. the man wore a tunic of coarse linen embroidered on the sleeves and breast, around with he wore a girdle of rope, leather, or folded cloth. sometimes he also wore breeches reaching below the knee. the woman wore a loose short-sleeved gown, under which was a tight fitting garment with long loose sleeves, and which was short enough to be clear of the mud. if they wore shoes, they were clumsy and patched. some wore a hood-like cap. for really bad weather, a man wore on his head a hood with a very elongated point which could be wrapped around his neck. sometimes a short cape over the shoulders was attached. linen was too expensive for commoners. the absence of fresh food during the winter made scurvy prevalent; in the spring, people eagerly sought "scurvy grass" to eat. occasionally there would be an outbreak of a nervous disorder due to the ergot fungus growing in the rye used for bread. this manifested itself in apparent madness, frightening hallucinations, incoherent shouting, hysterical laughing, and constant scratching of itching and burning sensations. the villein and his wife and children worked from daybreak to dusk in the fields, except for sundays and holydays. he had certain land to farm for his own family, but had to have his grain milled at his lord's mill at the lord's price. he had to retrieve his wandering cattle from his lord's pound at the lord's price. he was expected to give a certain portion of his own produce, whether grain or livestock, to his lord. however, if he fell short, he was not put off his land. the villein, who worked the farm land as his ancestor ceorl had, now was so bound to the land that he could not leave or marry or sell an ox without his lord's consent. if the manor was sold, the villein was sold as a part of the manor. when his daughter or son married, he had to pay a "merchet" to his lord. he could not have a son educated without the lord's permission, and this usually involved a fee to the lord. his best beast at his death, or "heriot", went to his lord. if he wanted permission to live outside the manor, he paid "chevage" yearly. woodpenny was a yearly payment for gathering dead wood. sometimes a "tallage" payment was taken at the lord's will. the villein's oldest son usually took his place on his land and followed the same customs with respect to the lord. for an heir to take his dead ancestor's land, the lord demanded payment of a "relief", which was usually the amount of a year's income but sometimes as much as the heir was willing to pay to have the land. the usual aids were also expected to be paid. a large village also had a smith, a wheelwright, a millwright, a tiler and thatcher, a shoemaker and tanner, a carpenter wainwright and carter. markets were about twenty miles apart because a farmer from the outlying area could then carry his produce to the nearest town and walk back again in the daylight hours of one day. in this local market he could buy foodstuffs, livestock, household goods, fuels, skins, and certain varieties of cloth. the cloth was crafted by local weavers, dyers, and fullers. the weaver lived in a cottage with few and narrow windows with little furniture. he worked in the main, and sometimes the only, room. first the raw wool was washed with water at the front door to remove the grease. then its fibers were disentangled and made fine with hand cards with thistle teeth, usually by the children. then it was spun by a spinning wheel into thread, usually by the wife. the threads forming the warp of the fabric were fastened parallel on a double frame, of which the two ends rose and fell alternately and were worked by two pedals. to make the weft, the weaver threw a shuttle between them, from one hand to the other. since one loom could provide work for about six spinners, he had his wool spun by other spinners in their cottages. sometimes the master weaver had an apprentice or workman working and living with him, who had free board and lodging and an annual wage. then a fuller made the cloth thick and dense by washing, soaping, beating, and agitating it, with the use of a community watermill which could be used by anyone for a fixed payment. the cloth dried through the night on a rack outside the cottage. the weaver then took his cloth, usually only one piece, to the weekly market to sell. the weavers stood at the market holding up their cloth. the cloth merchant who bought the cloth then had it dyed or dressed according to his requirements. its surface could be raised with teazleheads and cropped or sheared to make a nap. some cloth was sold to tailors to make into clothes. often a weaver had a horse for travel, a cow for milk, chickens for eggs, perhaps a few cattle, and some grazing land. butchers bought, slaughtered, and cut up animals to sell as meat. some was sold to cooks, who sold prepared foods. the hide was bought by the tanner to make into leather. the leather was sold to shoemakers and glovemakers. millers bought harvested grain to make into flour. flour was sold to bakers to make into breads. wood was bought by carpenters and by coopers, who made barrels, buckets, tubs, and pails. tilers, oil-makers and rope- makers also bought raw material to make into finished goods for sale. wheelwrights made ploughs, harrows, carts, and later wagons. smiths and locksmiths worked over their hot fires. games with dice were sometimes played. in winter, youths ice- skated with bones fastened to their shoes. they propelled themselves by striking the ice with staves shod with iron. on summer holydays, they exercised in leaping, shooting with the bow, wrestling, throwing stones, and darting a thrown spear. the maidens danced with timbrels. since at least , children's toys included dolls, drums, hobby horses, pop guns, trumpets, and kites. the cold, indoors as well as outdoors, necessitated that people wear ample and warm garments. men and women of position dressed in long full cloaks reaching to their feet, sometimes having short full sleeves. the cloak generally had a hood and was fastened at the neck with a brooch. underneath the cloak was a simple gown with sleeves tight at the wrist but full at the arm-hole, as if cut from the same piece of cloth. a girdle or belt was worn at the waist. when the men were hunting or working, they wore gown and cloak of knee length. men wore stockings to the knee and shoes. the fashion of long hair on men returned. the nation grew with the increase of population, the development of towns, and the growing mechanization of craft industries. there were watermills for crafts and for supplying and draining water in all parts of the nation. in flat areas, slow rivers could be supplemented by creating artifical waterfalls, for which water was raised to the level of reservoirs. there were also some iron- smelting furnaces. coal mining underground began as a family enterprise. stone bridges over rivers could accommodate one person traveling by foot or by horseback and were steep and narrow. the wheelbarrow came into use to cart materials for building castles and cathedrals. merchants, who had come from the low end of the knightly class or high end of the villein class, settled around the open market areas, where main roads joined. they had plots narrow in frontage along the road and deep. their shops faced the road, with living space behind or above their stores. town buildings were typically part stone and part timber as a compromise between fire precautions and expense. towns, as distinct from villages, had permanent markets. as towns grew, they paid a fee to obtain a charter for self-government from the king giving the town judicial and commercial freedom. they were literate enough to do accounts. so they did their own valuation of the sum due to the crown so as not to pay the sheriff any more than that. these various rights were typically expanded in future times, and the towns received authority to collect the sum due to the crown rather than the sheriff. this they did by obtaining a charter renting the town to the burghers at a fee farm rent equal to the sum thus deducted from the amount due from the county. such a town was called a "borough" and its citizens or landholding freemen "burgesses". to be free of something meant to have exclusive rights and privileges with respect to it. selling wholesale could take place only in a borough. burgesses were free to marry. they were not subject to defense except of the borough. they were exempt from attendance at county and hundred courts. the king assessed a tallage [ad hoc tax] usually at ten per cent of property or income. in the boroughs, merchant and manufacturing guilds controlled prices and assured quality. the head officer of the guild usually controlled the borough, which excluded rival merchant guilds. a man might belong to more than one guild, e.g. one for his trade and another for religion. craft guilds grew up in the towns, such as the tanners at oxford, which later merged with the shoemakers into a cordwainers' guild. there were weavers' guilds in several towns, including london, which were given royal sanction and protection for annual payments (twelve pounds of silver for london. they paid an annual tribute and were given a monopoly of weaving cloth within a radius of several miles. guild rules covered attendance of the members at church services, the promotion of pilgrimages, celebration of masses for the dead, common meals, relief of poor brethren and sisters, the hours of labor, the process of manufacture, the wages of workmen, and technical education. henry standardized the yard as the length of his own arm. trades and crafts, each of which had to be licensed, grouped together by specialty in the town. cloth-makers, dyers, tanners, and fullers were near an accessible supply of running water, upon which their trade depended. streets were often named by the trade located there, such as butcher row, pot row, cordwainer row, ironmonger row, wheeler row, and fish row. hirers of labor and sellers of wheat, hay, livestock, dairy products, apples and wine, meat, poultry, fish and pies, timber and cloth all had a distinct location. some young men were apprenticed to craftsmen to assist them and learn their craft. london had at least twenty wards, each governed by its own alderman. most of them were named after people. london was ruled by sixteen families linked by business and marriage ties. these businesses supplied luxury goods to the rich and included the goldsmiths [sold cups, dishes, girdles, mirrors, purses knives, and metal wine containers with handle and spout], vintners [wine merchants], mercers [sold textiles, haberdashery, combs, mirrors, knives, toys, spices, ointments, and potions], drapers, and pepperers, which later merged with the spicers to become the "grocers", skinners, tanners, shoemakers, woolmen, weavers, fishmongers, armorers, and swordsmiths. there were bakehouses at which one could leave raw joints of meat to be cooked and picked up later. these businesses had in common four fears: royal interference, foreign competition, displacement by new crafts, and violence by the poor and escaped villeins who found their way to the city. when a non-freeholder stayed in london he had to find for frankpledge, three sureties for good behavior. failure to do so was a felony and the ward would eject him to avoid the charge of harboring him with its heavy fine. the arrival of ships with cargoes from continental ports and their departure with english exports was the regular waterside life below london bridge. many foreign merchants lived in london. imports included timber, hemp, fish, and furs. there was a fraternal organization of citizens who had possessed their own lands with sac and soke and other customs in the days of king edward. there were public bath-houses, but they were disreputable. a lady would take an occasional bath in a half cask in her home. the church warned of evils of exposing the flesh, even to bathe. middlesex county was london's territory for hunting and farming. all london craft work was suspended for one month at harvest time. london received this charter for self-government and freedom from the financial and judicial organization of the county: "henry, by the grace of god, king of england, to the archbishop of canterbury and the bishops, abbots, earls, barons, justiciars, sheriffs and all his loyal subjects, both french and english, throughout the whole of england - greeting. . be it known to you that i have granted middlesex to my citizens of london to be held on lease by them and their heirs of me and my heirs for pounds paid by tale [yearly], upon these terms: that the citizens themselves [may] appoint a sheriff, such as they desire, from among themselves, and a justiciar, such as they desire, from among themselves, to safeguard the pleas of my crown [criminal cases] and to conduct such pleas. and there shall be no other justiciar over the men of london. . and the citizens shall not take part in any [civil] case whatsoever outside the city walls. ) and they shall be exempt from the payment of scot and danegeld and the murder fine. ) and none of them shall take part in trial by combat. ) and if any of the citizens has become involved in a plea of the crown, he shall clear himself, as a citizen of london, by an oath which has been decreed in the city. ) and no one shall be billeted [lodged in a person's house by order of the king] within the walls of the city nor shall hospitality be forcibly exacted for anyone belonging to my household or to any other. ) and all the citizens of london and all their effects [goods] shall be exempt and free, both throughout england and in the seaports, from toll and fees for transit and market fees and all other dues. ) and the churches and barons and citizens shall have and hold in peace and security their rights of jurisdiction [in civil and criminal matters] along with all their dues, in such a way that lessees who occupy property in districts under private jurisdiction shall pay dues to no one except the man to whom the jurisdiction belongs, or to the official whom he has placed there. ) and a citizen of london shall not be amerced [fined by a court when the penalty for an offense is not designated by statute] to forfeiture of a sum greater than his wergeld, [hereby assessed as] shillings, in a case involving money. ) and further there shall be no miskenning [false plea causing a person to be summoned to court] in a husting [weekly court] or in a folkmoot [meeting of the community], or in any other court within the city. ) and the hustings [court] shall sit once a week on monday. ) and i assure to my citizens their lands and the property mortgaged to them and the debts due to them both within the city and without. ) and with regard to lands about which they have pled in suit before me, i shall maintain justice on their behalf, according to the law of the city. ) and if anyone has exacted toll or tax from citizens of london, the citizens of london within the city shall [have the right to] seize [by process of law] from the town or village where the toll or tax was exacted a sum equivalent to that which the citizen of london gave as toll and hence sustained as loss. ) and all those who owe debts to citizens shall pay them or shall clear themselves in london from the charge of being in debt to them. ) but if they have refused to pay or to come to clear themselves, then the citizens to whom they are in debt shall [have the right to] seize [by process of law] their goods [including those in the hands of a third party, and bring them] into the city from the [town, village or] county in which the debtor lives [as pledges to compel appearance in court]. ) and the citizens shall enjoy as good and full hunting rights as their ancestors ever did, namely, in the chilterns, in middlesex, and in surrey. witnessed at westminster." the above right not to take part in any case outside the city relieved london citizens from the burden of traveling to wherever the king's court happened to be, the disadvantage of not knowing local customs, and the difficulty of speaking in the language of the king's court rather than in english. the right of redress for tolls exacted was new because the state of the law was that the property of the inhabitants was liable to the king or superior lord for the common debt. newcastle-on-tyne was recognized by the king as having certain customs, so the following was not called a grant: "these are the laws and customs which the burgesses of newcastle upon tyne had in the time of henry king of england and ought to have. [ ] burgesses can distrain [take property of another until the other performs his obligation] upon foreigners within, or without their own market, within or without their own houses, and within or without their own borough without the leave of the reeve, unless the county court is being held in the borough, and unless [the foreigners are] on military service or guarding the castle. [ ] a burgess cannot distrain upon a burgess without the leave of the reeve. [ ] if a burgess have lent anything of his to a foreigner, let the debtor restore it in the borough if he admits the debt, if he denies it, let him justify himself in the borough. [ ] pleas which arise in the borough shall be held and concluded there, except pleas of the crown. [ ] if any burgess be appealed [sued] of any plaint, he shall not plead without the borough, unless for default of [the borough] court. [ ] nor ought he to answer without day and term, unless he have fallen into 'miskenning'[error in pleading], except in matters which pertain to the crown. [ ] if a ship have put in at tynemouth and wishes to depart, the burgesses may buy what they will [from it]. [ ] if a plea arise between a burgess and a merchant, it shall be concluded before the third ebb of the tide. [ ] whatever merchandise a ship has brought by sea must be landed, except salt; and herring ought to be sold in the ship. [ ] if any man have held land in burgage for a year and a day, lawfully and without claim, he shall not answer a claimant, unless the claimant have been without the realm of england, or a child not of age to plead. [ ] if a burgess have a son, he shall be included in his father's freedom if he be with his father. [ ] if a villein come to dwell in the borough, and dwell there a year and a day as a burgess, he shall abide altogether, unless notice has been given by him or by his master that he is dwelling for a term. [ ] if any man appeal [sue] a burgess of any thing, he cannot do [trial by] battle with the burgess, but the burgess shall defend himself by his law, unless it be of treason, whereof he is bound to defend himself by [trial by] battle. [ ] neither can a burgess do [trial by] battle against a foreigner, unless he first go out of the borough. [ ] no merchant, unless he be a burgess, may buy [outside] the town either wool or leather or other merchandise, nor within the borough except [from] burgesses. [ ] if a burgess incur forfeit, he shall give six ounces [ s.] to the reeve. [ ] in the borough there is no merchet [payment for marrying off a daughter] nor heriot nor bloodwite [fine for drawing blood] nor stengesdint [fine for striking with a stick]. [ ] every burgess may have his own oven and hand-mill if he will, saving the right of the king's oven. [ ] if a woman be in forfeit for bread or beer, no one ought to interfere but the reeve. if she forfeit twice, she shall be chastised by her forfeit. if three times, let justice be done on her. [ ] no one but a burgess may buy webs [woven fabrics just taken off the loom] to dye, nor make nor cut them. [ ] a burgess may give and sell his land and go whither he will freely and quietly unless there be a claim against him." the nation produced sufficient iron, but a primitive steel [iron with carbon added] was imported. it was scarce and expensive. steel was used for tools, instruments, weapons and armor. ships could carry about people. navigation was by simple charts that included wind direction for different seasons and the direction of north. the direction of the ship could be generally determined when the sky was clear by the position of the sun during the day or the north star during the night. plays about miracles wrought by holy men or saints or the sufferings and fortitude of martyrs were performed, usually at the great church festivals. most nobles could read, though writing was still a specialized craft. there were books on animals, plants, and stones. the lives of the saints as told in the book "the golden legend" were popular. the story of the early king arthur was told in the book "the history of the kings of england". the story at this time stressed arthur as a hero and went as follows: arthur became king at age . he had an inborn goodness and generosity as well as courage. he and his knights won battles against foreign settlers and neighboring clans. once, he and his men surrounded a camp of foreigners until they gave up their gold and silver rather than starve. arthur married guenevere and established a court and retinue. leaving britain in the charge of his nephew modred, he fought battles on the continent for land to give to his noblemen who did him service in his household and fought with him. when arthur returned to britain, he made battle with his nephew modred who had crowned himself king. arthur's knight gawain, the son of his sister, and the enemy modred were killed and arthur was severely wounded. arthur told his kinsman constantine to rule britain as king in his place. the intellectual world included art, secular literature, law, and medicine. there were about physicians. the center of government was a collection of tenants-in-chief, whose feudal duty included attendance when summoned, and certain selected household servants of the king. the exchequer became a separate body. the payments in kind, such as grain or manual services, from the royal demesnes had been turned into money payments. the great barons made their payments directly to the exchequer. the income from royal estates was received by the exchequer and then commingled with the other funds. each payment was indicated by notches on a stick, which was then split so that the payer and the receiver each had a half showing the notches. the exchequer was the great school for training statesmen, justices, and bishops. the chancellor managed the domestic matters of the crown's castles and lands. the great offices of state were sold for thousands of pounds, which caused their holders to be on their best behavior for fear of losing their money by being discharged from office. one chancellor paid henry about pounds for the office. henry brought sheriffs under his strict control, free from influence by the barons. he maintained order with a strong hand, but was no more severe than his security demanded. forests were still retained by kings for their hunting of boars and stags. a master-forester maintained them. the boundaries of the royal forests were enlarged. they comprised almost one-third of the kingdom. certain inhabitants thereof supplied the royal foresters with meat and drink and received certain easements and rights of common therein. the forest law reached the extreme of severity and cruelty under henry i. punishments given included blinding, emasculation, and execution. offenders were rarely allowed to substitute a money payment. when fines were imposed they were heavy. a substantial number of barons and monasteries were heavily in debt to the jews. the interest rate was % ( d. per pound per week). the king taxed the jews at will. - the law - henry restored the death penalty (by hanging) for theft and robbery, but maintained william i's punishment of mutilation by blinding and severing of limbs for other offenses, for example, bad money. he decreed in that false and bad money should be amended, so that he who was caught passing bad denarii should not escape by redeeming himself but should lose his eyes and members. and since denarii were often picked out, bent, broken, and refused, he decreed that no denarius or obol, which he said were to be round, or even a quadrans, if it were whole, should be refused. (money then reached a higher level of perfection, which was maintained for the next century.) the forest law stated that: "he that doth hunt a wild beast and doth make him pant, shall pay shillings: if he be a freeman, then he shall pay double. if he be a bound man, he shall lose his skin." a "verderer" was responsible for enforcing this law, which also stated that: "if anyone does offer force to a verderer, if he be a freeman, he shall lose his freedom, and all that he hath. and if he be a villein, he shall lose his right hand." further, "if such an offender does offend so again, he shall lose his life." a wife's dower is one-third of all her husband's freehold land, unless his endowment of her at their marriage was less than one- third. counterfeiting law required that "if any one be caught carrying false coin, the reeve shall give the bad money to the king however much there is, and it shall be charged in the render of his farm [payment] as good, and the body of the offender shall be handed over to the king for judgment, and the serjeants who took him shall have his clothes." debts to townsmen were recoverable by this law: "if a burgess has a gage [a valuable object held as security for carrying out an agreement] for money lent and holds this for a whole year and a day, and the debtor will not deny the debt or deliver the gage, and this is proved, the burgess may sell the gage before good witnesses for as much as he can, and deduct his money from the sum. if any money is over he shall return it to the debtor. but if there is not enough to pay him, he shall take distress again for the amount that is lacking." past due rent in a borough was punishable by payment of s. as fine. judicial activity encouraged the recording of royal legislation in writing which both looked to the past and attempted to set down law current in henry's own day. the "liberi quadripartitus" aimed to include all english law of the time. this showed an awareness of the ideal of written law as a statement of judicial principles as well as of the practice of kingship. in this way, concepts of roman law used by the normans found their way into english law. church law provided that only consent between a man and woman was necessary for marriage. there needn't be witnesses, ceremony, nor consummation. consent could not be coerced. penalties in marriage agreements for not going through with the marriage were deemed invalid. villeins and slaves could marry without their lords' or owners' permission. a couple living together could be deemed married. persons related by blood within certain degrees, which changed over time, of consanguinity were forbidden to marry. this was the only ground for annulment of a marriage. a legal separation could be given for adultery, cruelty, or heresy. annulment, but not separation, could result in remarriage. fathers were usually ordered to provide some sustenance and support for their illegitimate children. the court punished infanticide and abortion. counterfeiters of money, arsonists, and robbers of pilgrims and merchants were to be excommunicated. church sanctuary was to be given to fugitives of violent feuds until they could be given a fair trial. - judicial procedure - courts extant now are the royal court, the king's court of the exchequer, county courts, and hundred courts, which were under the control of the king. his appointed justices administered justice in these courts on regular circuits. the sheriff now only produced the proper people and preserved order at the county courts and presided over the nonroyal pleas and hundred courts. he empaneled recognitors, made arrests, and enforced the decisions of the royal courts. also there are manor courts, borough courts, and ecclesiastical courts. in the manor courts, the lord's reeve generally presided. the court consisted of the lord's vassals and declared the customs and law concerning such offenses as failure to perform services and trespass on manorial woods, meadow, and pasture. the king's royal court heard issues concerning the crown and breaches of the king's peace, which included almost all criminal matters. the most serious offenses: murder, robbery, rape, abduction, arson, treason, and breach of fealty, were now called felonies. other offenses were: housebreaking, ambush, certain kinds of theft, premeditated assault, and harboring outlaws or excommunicants. henry personally presided over hearings of important legal cases. he punished crime severely. offenders were brought to justice not only by the complaint of an individual or local community action, but by official prosecutors. a prosecutor was now at trials as well as a justice. trial is still by compurgation. trial by combat was relatively common. these offenses against the king placed merely personal property and sometimes land at the king's mercy. thus the crown increased the range of offenses subject to its jurisdiction and arrogated to itself profits from the penalties imposed. a murderer could be given royal pardon from the death penalty so that he could pay compensation to the relatives. the royal court also heard these offenses against the king: fighting in his dwelling, contempt of his writs or commands, encompassing the death or injury of his servants, contempt or slander of the king, and violation of his protection or his law. it heard these offenses against royal authority: complaints of default of justice or unjust judgment, pleas of shipwrecks, coinage, treasure-trove [money buried when danger approached], forest prerogatives, and control of castle building. slander of the king, the government, or high officials was punishable as treason, felony, misprison of treason, or contempt, depending on the rank and office of the person slandered and the degree of guilt. henry began the use of writs to intervene in civil matters, such as inquiry by oath and recogniton of rights as to land, the obligations of tenure, the legitimacy of heirs, and the enforcement of local justice. the crown used its superior coercive power to enforce the legal decisions of other courts. these writs allowed people to come to the royal court on certain issues. there was a vigorous interventionism in the land law subsequent to appeals to the king in landlord-tenant relations, brought by a lord or by an undertenant. assizes [those who sit together] of local people who knew relevant facts were put together to assist the court. henry appointed some locally based justices, called justiciars. also, he sent justices out on eyres [journeys] to hold assizes. this was done at special sessions of the county courts, hundred courts, and manor courts. records of the verdicts of the royal court were sent with these itinerant justices for use as precedent in these courts. thus royal authority was brought into the localities and served to check baronial power over the common people. these itinerant justices also transacted the local business of the exchequer in each county. henry created the office of chief justiciar, which carried out judicial and administrative functions. the royal court retained cases of gaol delivery [arrested person who had been held in gaol was delivered to the court] and amercements. it also decided cases in which the powers of the popular courts had been exhausted or had failed to do justice. the royal court also decided land disputes between barons who were too strong to submit to the county courts. the king's court of the exchequer reviewed the accounts of sheriffs, including receipts and expenditures on the crown's behalf as well as sums due to the treasury, located still at winchester. these sums included rent from royal estates, the danegeld land tax, the fines from local courts, and aid from baronial estates. its records were the "pipe rolls", so named because sheets of parchment were fastened at the top, each of which dropped into a roll at the bottom and so assumed the shape of a pipe. the county and hundred courts assessed the personal property of individuals and their taxes due to the king. the county court decided land disputes between people who had different barons as their respective lords. the free landholders were expected to attend county, hundred, and manor courts. they owed "suit" to it. the suitors found the dooms [laws] by which the presiding officer pronounced the sentence. the county courts heard cases of theft, brawling, beating, and wounding, for which the penalties could be exposure in the pillory or stocks. the pillory held an offender's head and hands in holes in boards, and the stocks held one's hands and feet. here the public could scorn and hit the offender or throw fruit, mud, and dead cats at him. for sex offenders and informers, stones were usually thrown. sometimes a person was stoned to death. the county courts met twice yearly. if an accused failed to appear after four successive county courts, he was declared outlaw at the fifth and forfeited his civil rights and all his property. he could be slain by anyone at will. the hundred court met once a month to hear neighborhood disputes, for instance concerning pastures, meadows and harvests. usually present was a priest, the reeve, four representative men, and sometimes the lord or his steward in his place. sometimes the chief pledges were present to represent all the men in their respective frankpledges. the bailiff presided over all these sessions except two, in which the sheriff presided over the full hundred court to take the view of frankpledge, which was required for those who did not have a lord to answer for him. the barons held court on their manors at a "hall-mote" for issues arising between people living on the manor, such as bad ploughing on the lord's land or letting a cow get loose on the lord's land, and land disputes. this court also made the decision of whether a certain person was a villein or freeman. the manor court took over issues which had once been heard in the vill or hundred court. the baron charged a fee for hearing a case and received any fines he imposed, which amounted to significant "profits of justice". boroughs held court on trading and marketing issues in their towns such as measures and weights, as well as issues between people who lived in the borough. the borough court was presided over by a reeve who was a burgess as well as a royal official. wealthy men could employ professional pleader-attorneys to advise them and to speak for them in a court. the ecclesiastical courts dealt, until the time of henry viii, with family matters such as marriage, annulments, marriage portions, legitimacy, undue wife-beating, child abuse, orphans, bigamy, adultery, incest, fornication, personal possessions, defamation, slander which did not cause material loss (and therefore had no remedy in the temporal courts), libel, perjury, usury, mortuaries, sacrilege, blasphemy, heresy, tithe payments, church fees, certain offences on consecrated ground, and breaches of promises under oath, e.g. to pay a debt, provide services, or deliver goods. they decided inheritance and will issues which did not concern land, but only personal property. this developed from the practice of a priest usually hearing a dying person's will as to the disposition of his goods and chattel when he made his last confession. it provided guardianship of infants during probate of their personal property. trial was basically by compurgation, with oath-helpers swearing to or against the veracity of the alleged offender's oath. an alleged offender could be required to answer questions under oath, thus giving evidence against himself. the ecclesiastical court's penalties were intended to reform and determined on a case-by-case basis. the canon law of christendom was followed, without much change by the english church or nation. penalties could include confession and public repentance of the sin before the parish, making apologies and reparation to persons affected, public embarrassment such as being dunked in water (e.g. for women scolds), walking a route barefoot and clad only in one's underwear, whippings, extra work, fines, and imprisonment in a "penitentiary" to do penance. the ultimate punishment was excommunication with social ostracism. then no one could give the person drink, food, or shelter and he could speak only to his spouse and servants. excommunication included denial of the sacraments of baptism, penance, mass, and extreme unction [prayers for spiritual healing] at death; which were necessary for salvation of the soul; and the sacrament of confirmation of one's belief in the tenets of christianity. a person could also be denied a christian burial in consecrated ground. however, the person could still marry and make a will. the king's court could order a recalcitrant excommunicant imprisoned until he satisfied the claims of the church. excommunication was usually imposed for failure to obey an order or showing contempt of the law or of the courts. it required a hearing and a written reason. if this measure failed, it was possible to turn the offender over to the state for punishment, e.g. for blasphemy or heresy. blasphemy [speaking ill of god] was thought to cause god's wrath expressed in famine, pestilence, and earthquake and was usually punished by a fine or corporal punishment, e.g. perforation or amputation of the tongue. it was tacitly understood that the punishment for heresy was death by burning. there were no heresy cases up to and few after that. the state usually assured itself the sentence was just before imposing it. the court of the rural dean was the ecclesiastical parallel of the hundred court of secular jurisdiction and usually had the same land boundaries. the archdeacons, who had been ministers of the bishop in all parts of his diocese alike, were now each assigned to one district, which usually had the same boundaries as the county. henry acknowledged occasional appellate authority of the pope, but expected his clergy to elect bishops of his choice. there was a separate judicial system for the laws of the forest. there were itinerant justices of the forests and four verderers of each forest county, who were elected by the votes of the full county court, twelve knights appointed to keep vert [everything bearing green leaves] and venison, and foresters of the king and of the lords who had lands within the limits of the forests. every three years, the officers visited the forests in preparation for the courts of the forest held by the itinerant justices. the inferior courts were the wood-mote, held every forty days, and the swein [freeman or freeholder within the forest]-mote, held three times yearly before the verderers as justices, in which all who were obliged to attend as suitors of the county court to serve on juries and inquests were to be present. - - - chapter - - - - the times: - - king henry ii and queen eleanor, who was twelve years older, were both intelligent, educated, energetic, well-traveled, and experienced in affairs of state. henry was the first norman king to be fully literate and he learned latin. he had many books and maintained a school. eleanor often served as regent during henry's reign and the reigns of their two sons: richard i, the lion- hearted, and john. she herself headed armies. henry ii was a modest, courteous, and patient man with an astonishing memory and strong personality. he was indifferent to rank and impatient of pomp to the point of being careless about his appearance. he usually dressed in riding clothes and was often unkempt. he was thrifty, but generous to the poor. he was an outstanding legislator and administrator. henry ii took the same coronation oath as edward the confessor regarding the church, laws, and justice. not only did he confirm the charter of his grandfather henry i, but he revived and augmented the laws and institutions of his grandfather and developed them to a new perfection. almost all legal and fiscal institutions appear in their first effective form during his reign. for instance, he institutionalized the assize for a specific function in judicial proceedings, whereas before it had been an ad hoc body used for various purposes. the term "assize" here means the sitting of a court or council. it came to denote the decisions, enactments, or instructions made at such. henry's government practiced a strict economy and he never exploited the growing wealth of the nation. he abhorred bloodshed and the sacrifice of men's lives. so he strove diligently to keep the peace, when possible by gifts of money, but otherwise with armed force. robbers were hanged and any man who raped a woman was castrated. foreign merchants with precious goods could journey safely through the land from fair to fair. these fairs were usually held in the early fall, after sheep-shearing and harvesting. foreign merchants bought wool cloth and hides. frankpledge was revived, now applying to the unfree and villeins. no stranger could stay overnight (except for one night in a borough), unless sureties were given for his good behavior. a list of such strangers was to be given to itinerant justices. henry had character and the foresight to build up a centralized system of government that would survive him. he learned about the counties' and villages' varying laws and customs. then, using the model of roman law, he gave to english institutions that unity and system which in their casual patch-work development had been lacking. henry's government and courts forged permanent direct links between the king and his subjects which cut through the feudal structure of lords and vassals. he developed the methods and structure of government so that there was a great increase in the scope of administrative activity without a concurrent increase of personal power of the officials who discharged it. the government was self-regulating, with methods of accounting and control which meant that no official, however exalted, could entirely escape the surveillance of his colleagues and the king. at the same time, administrative and judicial procedures were perfected so that much which had previously required the king's personal attention was reduced to routine. the royal household translated the royal will into action. in the early s, there had been very little machinery of central government that was not closely associated with the royal household. there was a chief justiciar for legal matters and a treasurer. royal government was largely built upon what had once been purely domestic offices. kings had called upon their chaplains to pen letters for them. by henry ii's reign, the chancery was a highly efficient writing office through which the king's will was expressed in a flow of writs, and the chancellor an important and highly rewarded official, but he was still responsible for organizing the services in the royal chapel. similarly, the chamberlains ran the household's financial departments. they arranged to have money brought in from a convenient castle treasury, collected money from sheriffs or the king's debtors, arranged loans with the usurers, and supervised the spending of it. it was spent for daily domestic needs, the king's alms-giving, and the mounting of a military campaign. but they were still responsible for personal attendance upon the king in his privy chamber, taking care of his valuable furs, jewels, and documents, and changing his bedlinens. there were four other departments of the household. the steward presided over the hall and kitchens and was responsible for supplying the household and guests with food supplies. the butler had duties in the hall and cellars and was responsible for the supply of wine and ale. the marshall arranged lodgings for the king's court as it moved about from palaces to hunting lodges, arranged the pay of the household servants, and supervised the work of ushers, watchmen, fire tenders, messengers and huntsmen. the constable organized the bodyguard and escorts, arranged for the supply of castles, and mustered the royal army. the offices of steward, constable, chamberlain, butler were becoming confined to the household and hereditary. the justiciar, chancellor, and treasurer are becoming purely state offices and are simply sold or rented, until public pressure resulted in a requirement of ability. henry's council included all his tenants-in-chief, which included archbishops, bishops, abbots, priors, earls, barons, knights and socage tenants of the crown, whether they made payments directly to him or through a sheriff. the higher ones were served with a writ addressed to them personally. knights and below were summoned by a general writ to the sheriff. henry brought order and unity by making the king's royal court the common court of the land. its purpose was to guard the king's peace by protecting all people of free status throughout the nation and correct the disparity in punishments given by local courts. heretofore, the scope of the king's peace had varied to cover as little as the king's presence, his land, and his highway. the royal demesne had shrunk to about % of the land. the common law for all the nation was established by example of the king's royal court. henry erected a basic, rational framework for legal processes which drew from tradition but lent itself to continuous expansion and adaptation. a system of writs originated well-defined actions in the royal courts. each court writ had to satisfy specific conditions for this court to have jurisdiction over an action or event. this system determined the royal court's jurisdiction over the church, lords, and sheriffs. it limited the jurisdiction of all other courts and subordinated them to the royal court. inquests into any misdeeds of sheriffs were held, which could result in their dismissal. henry and eleanor spoke many languages and liked discussing law, philosophy, and history. so they gathered wise and learned men about them, who became known as courtiers, rather than people of social rank. they lived in the great and strong tower of london, which had been extended beyond the original white tower, as had other castles, so that the whole castle and grounds were defended instead of just the main building. the tower of london was in the custody of one of the two justiciars. on the west were two strongly fortified castles surrounded by a high and deeply entrenched wall, which had seven double gates. towers were spaced along the north wall and the thames river flowed below the south wall. to the west was the city, where royal friends had residences with adjoining gardens near the royal palace at westminster. the court was a center of culture as well as of government. the game of backgammon was played. people wore belts with buckles, usually brass, instead of knotting their belts. london extended about a mile along the thames and about half a mile inland. it had narrow twisting lanes, some with a ditch down the middle for water runoff. most of its houses were two stories, the ground floor having booths and workshops, and the upper floor living space. most of the houses were wooden structures. the richer merchants' and knights' houses were built of stone. walls between houses had to be stone to a height of feet and thatched roofs were banned because there had been many fires. there was poor compliance, but some roofs were tiled with red-brick tiles. the population was about , . there were over churches for public worship, thirteen monasteries (including nunneries), and st. paul's cathedral. all were built of stone. the churches gave a place of worship for every inhabitants and celebrated feast days, gave alms and hospitality to strangers, confirmed betrothals or agreements of marriage, celebrated weddings, conducted funerals, and buried the dead. the synod of westminster of prescribed that all marriages were to be performed by the church. church law required a warning prior to suspension or excommunication. monastic, cathedral, and parish schools taught young boys grammar so they could sing and read in church services. nuns taught girls. fish but no meat was eaten on fridays. there was dark rye bread and expensive white wheat bread. vegetables included onions, leeks, and cabbage. fruits included apples, pears, plums, cherries, and strawberries. water was obtained from streams running through the town to the thames and from springs. only the rich, palaces, and churches could afford beeswax candles; others had home-made tallow [cow or sheep fat] candles which smelled and gave off smoke. most people washed their bodies. even the poor had beds and bed clothes. few babies survived childhood. if a man reached , he could expect to live until age . thousands of londoners died during a hot summer from fevers, plague and the like. in london, bells heralded the start and finish of all organized business. the sellers of merchandise and hirers of labor were distributed every morning into their several localities according to their trade. vendors, craftsmen, and laborers had their customary places. some vendors walked the streets announcing their wares for sale. there were craft guilds of bakers, butchers, clothworkers, and saddlers, as well as of weavers. vendors on the thames river bank sold cooked fish caught from the river and wine from ships and wine cellars. cook shops sold roasted meats covered with hotly spiced sauces. london bridge was built of stone for the first time. it was supported by a series of stone arches standing on small man-made islands. it had such a width that a row of wood houses and a chapel was built on top of it. in the spring it was impassable by ships because the flow of water under it varied in height on either side of the bridge by several feet at half tide. the bridge had the effect of slowing down the flow upstream, which invited wherries and rowboats and stately barges of the nobility. in winters in which it froze over, there was ice skating, ice boating, and fishing through holes in the ice. outside each city gate were clusters of ragged buildings, small monasteries and hostelries, groups of huntsmen's kennels, and fencing schools. outside one of the gates, a horse market was held every week. horses wore horseshoes made of iron or of a crude steel. from the southwest gate of the city along the north river bank toward westminster, there was a gradually extending line of rich men's mansions and bishops' palaces. on the southern bank of the thames river was growing the disorderly suburb of southwark, with fishermen's and boatmens' hovels, and taverns and brothels that were frequented by drunkards, rakes, and whores. on the north side of the city was a great forest with fields and wells where students and other young men from the city took walks in the fresh evening air. in some fields, countryfolk sold pigs, cows, oxen and sheep. mill wheels turned at various streams. near london in the country was a glass factory. at sunset, the gates of london were closed for the night. all taverns had to be closed, all lights put out, and all fires banked or covered when the bell of the church of st. martin le grand rang at : pm. anyone found on the streets after this curfew could be arrested. gangs of young nobles or gangs of thieves, cutpurses, and looters roamed the streets after dark and sometimes rioted. offenders were often beheaded and their heads placed on spikes on london bridge. men in london had begun weaving cloth, which formerly had been done by women. some of the cloth was exported. the weavers guild of london received a charter by the king in , the first granted to any london craft: "know that i have conceded to the weavers of london to hold their guild in london with all the liberties and customs which they had in the time of king henry [i], my grandfather; and that none may intermeddle with the craft within the city, nor in southwark, nor in other places pertaining to london except through them and except he be in their guild, otherwise than was accustomed to be done in the time of king henry, my grandfather ...so that each year they render thence to me two marks [ s. d.] of gold at the feast of st. michael. and i forbid that any shall do injury or contumely to them on this account under penalty of pounds [ s.]. witness t[homas], chancellor, and warinus, son of gerard, chamberlain, at winchester." the liberties obtained were: ) the weavers may elect bailiffs to supervise the work of the craft, to punish defaulters, and to collect the ferm [amount owed to the king]. the bailiffs were chosen from year to year and swore before the mayor of london to do and keep their office well and truly. ) the bailiffs may hold court from week to week on pleas of debt, agreements, covenants [promises for certain performance], and minor trespasses. ) if any of the guild members are sued in any other court on any of the above pleas, the guild may challenge that plea to bring it to the guild court. ) if any member is behind in his share of the payment to the king, the bailiffs may distrain his loom until he has paid this. paying an annual payment freed the weavers from liability to inconsequent royal fines. failure to make this payment promptly might have led to loss of the right, hence the rigorous penalty of distraint upon the looms of individual weavers who fell into arrears. the weavers' guild punished members who used bad thread in their weaving or did defective weaving by showing the default to the mayor, with opportunity for the workman to make entreaty, and the mayor and twelve members of the guild then made a verdict of amercement of / mark [ s. d.] and the workman of the cloth was also punished by the guild bailiffs according to guild custom. the weavers' guild tradition of brotherliness among members meant that injury to a fellow weaver incurred a severe penalty. if a weaver stole or eloigned [removed them to a distance where they were unreachable] any other weaver's goods falsely and maliciously, then he was dismissed from the guild and his loom was taken by the guild to fulfill his portion of the annual payment to the king. the weavers were allowed to buy and to sell in london freely and quietly. they had all the rights of other freemen of the city. thus from the middle of the s, the weavers enjoyed the monopoly of their craft, rights of supervision which ensured a high standard of workmanship, power to punish infractions of their privileges, and full control of their members. in this they stand as the prototype of english medieval guilds. these rights represented the standard which all bodies of craftsmen desired to attain. the right of independent jurisdiction was exceptional. in henry ii's charter to london, london did not retain its right to appoint its own sheriff and justice given by henry i. london's chief magistrate was the mayor, who was appointed by the king, until . then the mayor was elected yearly by the aldermen of the city wards and approved by the king. he was typically a rich prince chosen by the barons and chief merchants of london. the commoners had no voice in his selection, but they could still approve or disapprove of the actions of the city government at ward and folk motes. at certain periods, a king asserted royal power over the selection of mayor and governance of the city. there were three ways to become a citizen of london: being the son of a citizen, apprenticeship in a craft for seven years, and purchase of citizenship. london and westminster growth led to their replacing winchester as the capital. st. barthomew infirmary was established in london for the care of sick pilgrims traveling to the shrine of becket in canterbury. it had been inspired by a monk who saw a vision of st. barthomew telling him to build a church and an infirmary. trading was facilitated by the stabilization of the amount of silver metallic content of the english coinage, which was called "sterling" [strong] silver. the compass, a magnetic lodestone [leading stone] needle mounted on a cork and floated in a bowl of water, assisted the navigation of ships. with it, one could tell the general direction of a ship when the skies were cloudy as well as clear. and one could generally track one's route by using the direction and speed of travel to calculate one's new position. london became a major trading center for foreign goods from many lands. about % of the knights were literate. wealthy men sent their sons to school in monasteries to prepare them for a livelihood in a profession or in trade or to the town of oxford, whose individual scholars had migrated from paris and had attracted disciples for a long time. these schools grew up around st. mary's church, but had not been started by the church as there was no cathedral school in oxford. oxford had started as a burh and had a royal residence and many tradesmen. it was given its basic charter in by the king. this confirmed to it all the customs, laws and liberties [rights] as those enjoyed by london. it became a model charter for other towns. bachelors at oxford studied the arts of grammar, rhetoric, and logic, and then music, arithmetic, geometry, and astronomy, until they mastered their discipline and therefore were authorized to teach it. teaching would then provide an income sufficient to support a wife. the master of arts was analogous to the master craftsman of a guild. from , the civil law was studied, and shortly thereafter, canon law. later came the study of medicine. the use of paper supplemented the use of parchment for writing. irregular edged paper was made from linen, cotton, straw, and/or wood beaten to a pulp and then spread out over a wire mesh to dry. theologicians taught that the universe was made for the sake and service of man, so man was placed at the center of the universe. man was made for the sake and service of god. every freeman holding land of a lord gave homage and fealty to him, swearing to bear him faith of the tenement held and to preserve his earthly honor in all things, saving the faith owed to the king. homage was done for lands, for free tenements, for services, and for rents precisely fixed in money or in kind. homage could be done to any free person, male or female, adult or minor, cleric or layman. a man could do several homages to different lords for different fees, but there had to be a chief homage to that lord of whom he held his chief tenement. homage was not due for dower, from the husband of a woman to whom a tenement was given as a marriage portion, for a fee given in free alms, or until the third heir, either for free mariatagium [a marriage portion which is given with a daughter in marriage, that is not bound to service] or for the fee of younger sisters holding of the eldest. all fiefs to be inherited by the eldest son had to be intact. every lord could exact fealty from his servants. in this era, the english national race and character was formed. only a few barons still had lands in normandy. stories of good king arthur were popular and set ideals for behavior and justice in an otherwise barbaric age where force was supreme. his last battle in which he lay wounded and told a kinsman to rule in his place and uphold his laws was written in poem ("layamon's brut"). romantic stories were written and read in english. the custom of "bundling" was started by ladies with their knights, who would lie together in bed without undressing and with one in a sack the top of which was tied around his neck, as part of a romantic courtship. wealthy men often gave their daughters dowries in case they were widowed. this might be matched by a marriage settlement by a prospective husband. intermarriage had destroyed any distinction of normans by look or speech alone, except for the anglo-saxon manor villeins, who worked the farm land and composed about two-thirds of the population. villeins were bound to the land and could, on flight, be brought back to it. they could not give homage, but could give fealty. a villein had the equipment to farm, fish, make cheese, keep poultry, brew beer, hedge, and cut wood. although the villeins could not buy their freedom or be freed by their lord, they became less numerous because of the preference of landholders for tenants motivated to perform work by potential loss of tenure. also, the crown's protection of all its subjects in criminal matters blurred the distinction between free and unfree men. the boroughs were dominated by lords of local manors, who usually had a house in the borough. similarly, burgesses usually had farmland outside the borough. many boroughs were granted, by the king or manor lord, the right to have a common seal for the common business of the town. some boroughs were given the authority to confer freedom on the villein by enrolling him in their guild or allowing him to stay in the borough for a year and a day. the guilds met frequently in their drinking halls and drew up regulations for the management of their trade. each borough was represented by twelve reputable burgesses. each vill was represented by a reeve and four reputable men. certain towns sponsored great seasonal fairs for special goods, such as cloth. about % of the population lived in towns. in the early s, the horizontal-axle windmill was invented, probably in eastern england, on the analogy of the horizontal-axle watermill. it was very useful in flat areas where streams were too slow for a watermill unless a dam were built. but a dam often flooded agricultural land. london guilds of craftsmen such as weavers, fullers, bakers, loriners (makers of bits, spurs, and metal mountings of bridles and saddles), cordwainers (makers of leather goods such as shoes), pepperers, and goldsmiths were licensed by the king, for which they paid him a yearly fee. there were also five bridge guilds (probably raising money for the future construction of london bridge in stone) and st. lazarus' guild. the wealthy guilds, which included the goldsmiths, the pepperers, and three bridge guilds had landholding members who had been thegns or knights and now became a class of royal officials: the king's minters, his chamberlain, his takers of wines, his collectors of taxes. the weavers of oxford paid s.[two marks] to hav ea guild. the shoemakers paid s.[five marks]. in , master carpenters, masons, and tilers made d. per day, their servers (the journeymen of a later time) made / d., free- stone carvers / d., plasterers and daubers, diggers and sievers less. all received food in addition or / d. in its stead. sandwich was confirmed in its port rights by this charter: "henry ii to his sheriff and bailiffs of kent, greeting. i will and order that the monks of the holy trinity of canterbury shall have fully all those liberties and customs in sandwich which they had in the time of king henry my grandfather, as it was adjudged in pursuance of his command by the oath of twelve men of dover and twelve men of sandwich, to wit, that the aforesaid monks ought to have the port and the toll and all maritime customs in the same port, on either side of the water from eadburge-gate as far as markesfliete and a ferry-boat for passage. and no man has there any right except they and their ministers. wherefore i will and firmly command you and the men of sandwich that ye cause the aforesaid monks to have all their customs both in the port and in the town of sandwich, and i forbid any from vexing them on this account." "and they shall have my firm peace." henry gave this charter to the town of bristol in : "know ye, that i have granted to my burgesses of bristol, that they shall be quit both of toll [a reasonable sum of money or portion of the thing sold, due to the owner of the fair or market on the sale of things tollable therein. it was claimed by the lord of the fee where the fair or market was held, by virtue of a grant from the crown either ostensible or presumed] and passage [money paid for crossing a river or for crossing the sea as might be due to the crown] and all custom [customary payments] throughout my whole land of england, normandy, and wales, wherever they shall come, they and their goods. wherefore i will and strictly command, that they shall have all their liberties and acquittances and free customs fully and honorable, as my free and faithful men, and that they shall be quit of toll and passage and of every other customs: and i forbid any one to disturb them on this account contrary to this my charter, on forfeiture of ten pounds [ s.]." john, when he was an earl and before he became king, granted these liberties to bristol about : ) no burgess may sue or be sued out of bristol. ) the burgesses are excused from the murder fine (imposed by the king or lord from the hundred or town where the murder was committed when the murderer had not been apprehended). ) no burgess may wage duel [trial by combat], unless sued for death of a stranger. ) no one may take possession of a lodging house by assignment or by livery of the marshall of the earl of gloucester against the will of the burgesses (so that the town would not be responsible for the good behavior of a stranger lodging in the town without first accepting the possessor of the lodging house). ) no one shall be condemned in a matter of money, unless according to the law of the hundred, that is, forfeiture of s. ) the hundred court shall be held only once a week. ) no one in any plea may argue his cause in miskenning. ) they may lawfully have their lands and tenures and mortgages and debts throughout my whole land, [from] whoever owes them [anything]. ) with regard to debts which have been lent in bristol, and mortgages there made, pleas shall be held in the town according to the custom of the town. ) if any one in any other place in my land shall take toll of the men of bristol, if he does not restore it after he is required to, the prepositor of bristol may take from him a distress at bristol, and force him to restore it. ) no stranger-tradesman may buy within the town from a man who is a stranger, leather, grain, or wool, but only from a burgess. ) no stranger may have a shop, including one for selling wine, unless in a ship, nor shall sell cloth for cutting except at the fair. ) no stranger may remain in the town with his goods for the purpose of selling his goods, but for forty days. ) no burgess may be confined or distrained any where else within my land or power for any debt, unless he is a debtor or surety (to avoid a person owed a debt from distraining another person of the town of the debtor). ) they shall be able to marry themselves, their sons, their daughters and their widows, without the license of their lords. (a lord had the right of preventing his tenants and their families from marrying without his consent.) ) no one of their lords shall have the wardship or the disposal of their sons or daughters on account of their lands out of the town, but only the wardship of their tenements which belong to their own fee, until they become of age. ) there shall be no recognition [acknowledgement that something done by another person in one's name had one's authority] in the town. ) no one shall take tyne [wooden barrel with a certain quantity of ale, payable by the townsmen to the constable for the use of the castle] unless for the use of the lord earl, and that according to the custom of the town. ) they may grind their grain wherever they may choose. ) they may have their reasonable guilds, as well or better than they had them in the time of robert and his son william [john's wife's grandfather and father, who were earls of gloucester when the town and castle of bristol were part of the honor of gloucester]. ) no burgess may be compelled to bail any man, unless he himself chooses it, although he may be dwelling on his land. we have also granted to them all their tenures, messuages [dwelling house with adjoining land and adjacent buildings], in copses [thicket from which wood was cut], in buildings on the water or elsewhere to be held in free burgage [tenant to pay only certain fixed services or payments to his lord, but not military service (like free socage)]. we have granted also that any of them may make improvements as much as he can in erecting buildings anywhere on the bank and elsewhere, as long as the borough and town are not damaged thereby. also, they shall have and possess all waste land and void grounds and places, to be built on at their pleasure. newcastle-on-tyne's taxes were simplified in as follows: "know ye that i have granted and by this present charter have confirmed to my burgesses of newcastle upon tyne, and to all their things which they can assure to be their own, acquittance from toll and passage and pontage and from the hanse and from all other customs throughout all my land. and i prohibit all persons from vexing or disturbing them therein upon forfeiture to me." we grant to our upright men on newcastle-on-tyne and their heirs our town of newcastle-on-tyne with all its appurtenances at fee farm for pounds to be rendered yearly to us and our heirs at our exchequer by their own hand at the two terms, to wit, at easter pounds and at michaelmas pounds, saving to us our rents and prizes and assizes in the port of the same town. ranulph, earl of chester, made grants to his burgesses of coventry by this charter: "that the aforesaid burgesses and their heirs may well and honorably quietly and in free burgage hold of me and my heirs as ever in the time of my father and others of my ancestors they have held better more firmly and freer. in the second place i grant to them all the free and good laws which the burgesses of lincoln have better and freer. i prohibit and forbid my constables to draw them into the castle to plead for any cause, but they may freely have their portimoot [leet court] in which all pleas belonging to me and them may be justly treated of. moreover they may choose from themselves one to act for me whom i approve, who a justice under me and over them may know the laws and customs, and keep them to my counsel in all things reasonable, every excuse put away, and may faithfully perform to me my rights. if any one happen to fall into my amercement he may be reasonably fined by my bailiff and the faithful burgesses of the court. furthermore, whatever merchants they have brought with them for the improvement of the town, i command that they have peace, and that none do them injury or unjustly send them into court. but if any foreign merchant shall have done anything improper in the town that same may be regulated in the portimoot before the aforesaid justice without a suit at law." henry confirmed this charter of the earl's by as follows: i have confirmed all the liberties and free customs the earl of chester granted to them, namely, that the same burgesses may well and honorably hold in free burgage, as ever in the time of the father of the beforesaid earl, or other of his ancestors, they may have better or more firmly held; and they may have all the laws and customs which the citizens of lincoln have better and freer [e.g. their merchant guilds; all men brought to trade may be subject to the guild customs and assize of the town; those who lawfully hold land in the town for a year and a day without question and are able to prove that an accuser has been in the kingdom within the year without finding fault with them, from thence may hold the land well and in peace without pleading; those who have remained in the town a year and a day without question, and have submitted to the customs of the town and the citizens of the town are able to show through the laws and customs of the town that the accuser stood forth in the kingdom, and not a fault is found of them, then they may remain in peace in the town without question]; and that the constable of the aforesaid earl shall not bring them into the castle to plead in any case. but they may freely have their own portmanmoot in which all pleas appertaining to the earl and to them may be justly treated of. moreover they may choose one from themselves to act for the earl, whom i approve, who may be a justice under the earl and over them, and who to the earl may faithfully perform his rights, and if anyone happen to fall into the earl's forfeiture he shall be acquit for pence. if by the testimony of his neighbors he cannot pay pence coins, by their advice it shall be so settled as he is able to pay, and besides, with other acquittances, that the burgesses shall not provide anything in corrody [allowance in food] or otherwise whether for the said earl or his men, unless upon condition that their chattels shall be safe, and so rendered to them. furthermore, whatever merchants they have brought with them for the improvement of the town they may have peace, and none shall do them injury or unjustly send them into suit at law. but if any foreign merchant has done anything improper in the town that shall be amended [or tried] in the portmanmoot before the aforesaid justice without a suit. and they who may be newcomers into the town, from the day on which they began to build in the town for the space of two years shall be acquit of all charges. mercantile privileges were granted to the shoemakers in oxford thus: "know ye that i have granted and confirmed to the corvesars of oxford all the liberties and customs which they had in the time of king henry my grandfather, and that they have their guild, so that none carry on their trade in the town of oxford, except he be of that guild. i grant also that the cordwainers who afterwards may come into the town of oxford shall be of the same guild and shall have the same liberties and customs which the corvesars have and ought to have. for this grant and confirmation, however, the corvesars and cordwainers ought to pay me every year an ounce of gold." a guild merchant for wool dominated and regulated the wool trade in many boroughs. in leicester, only guildsmen were permitted to buy and sell wool wholesale to whom they pleased or to wash their fells in borough waters. certain properties, such as those near running water, essential to the manufacture of wool were maintained for the use of guild members. the waterwheel was a technological advance replacing human labor whereby the cloth was fulled. the waterwheel turned a shaft which lifted hammers to pound the wet cloth in a trough. wool packers and washers could work only for guild members. the guild fixed wages, for instance to wool wrappers and flock pullers. strangers who brought wool to the town for sale could sell only to guild members. a guildsman could not sell wool retail to strangers nor go into partnership with a man outside the guild. each guild member had to swear the guildsman's oath, pay an entrance fee, and subject himself to the judgment of the guild in the guild court, which could fine or suspend a man from practicing his trade for a year. the advantages of guild membership extended beyond profit in the wool trade. members were free from the tolls that strangers paid. they alone were free to sell certain goods retail. they had the right to share in any bargain made in the presence of a guildsman, whether the transaction took place in leicester or in a distant market. in the general interest, the guild forbade the use of false weights and measures and the production of shoddy goods. it maintained a wool-beam for weighing wool. it also forbade middlemen from profiting at the expense of the public. for instance, butchers' wives were forbidden from buying meat to sell again in the same market unless they cooked it. the moneys due to the king from the guilds of a town were collected by the town reeve. when the king wanted to raise an army, he summoned his major baron tenants-in-chief, who commanded their own armed dependent vassals, and he directed the sheriffs to command the minor tenants-in-chief and supply them with equipment. a baron could assemble an army in a day, but might use it to resist any perceived misgovernment by a king. armed conflict did not interfere much with daily life because the national wealth was still composed mostly of flocks and herds and simple buildings. machinery, furniture, and the stock of shops were still sparse. life would be back to normal within a week. henry wanted to check this power of the barons. so he took over or demolished their adulterine castles and restored the older obligation of every freeman to serve in defense of the realm, the fyrd, which was a military draft. at the king's call, barons were to appear in mail suit and helmet with sword and horse, knights and freeholders with s.[ marks] of rent or chattels in coat of mail with shield and lance, freeholders of s.[ marks] with lance and hauberk [coat of armor] and iron headpiece, burgesses and poorer freemen with lance and headpiece and wambais, and such as millers with pike and leather shirt. the spiritual and other baronies paid a commutation for personal service, called "scutage", at the rate of s. per knight's fee. barons and knights paid according to their knight's fee a scutage ranging from s. to s. as of , the military obligations of villeins were defined. the master of a household was responsible for every villein in his household. others had to form groups of ten and swear obedience to the chief of the group. the sheriff was responsible for maintaining lists of men liable for military service and procuring supplies. this national militia could be used to maintain the peace. the sheriff could call upon the military array of the county as a posse comitatus to take a band of thieves into custody or to quell disorder. for foreign wars, henry decided to use a mercenary army and a mercenary fleet. however, the nobility who were on the borders of the realm had to maintain their private armies for frequent border clashes. the other nobility now tended towards tournaments with mock foot battles between two sides. although subject to knightly rules, serious injury and death often resulted. for this reason, the church opposed them, but unsuccessfully. new taxes replaced the danegeld tax. freeholders of land paid taxes according to their plowable land ("hidage", by the hide, and later "carucage", by the smaller norman carucate). the smaller measure curtailed estates and increased taxation. it was assessed from - s. per carcuate [ acres] and collected for the king by knights with little or no remuneration, and later by inquest of neighbors. the towns and demesne lands of the crown paid a tax based on their produce that was collected by the itinerant justices. merchants were taxed on their personal property, which was determined by an inquest of neighbors. clergy were also taxed. this new system of taxation increased the royal income about threefold. there was a standard for reliefs paid of s. [ pounds] for a knight's fee and , s. [ pounds] for a barony. at the end of henry's reign, his treasure was over , pounds. every hide of land paid the sheriff s. annually for his services in the administration and defense of the county. this was probably the old danegeld. barons and their tenants and sub-tenants were offered an alternative of paying shield money ["scutage"] of s. d. per fee in commutation for and instead of military service for their fiefs. this enabled henry to hire soldiers who would be more directly under his own control and to organize a more efficient army. henry ii restored the silver coinage to its standard of purity. the first great inflation in england occurred between and . most goods and services increased threefold over these forty years. great households, whether of baron, prelate, monastery, or college gave their officers and servants allowances of provisions and clothing called "liveries". the officer of such departments as the buttery [cellar storing butts of wine], the kitchen, the napery [for linen cloth], and the chandlery had his fixed allowances for every day and his livery of clothing at fixed times of the year or intervals of years. the administration of a great estate is indicated by the pipe roll of the bishopric of winchester, - , as follows: "downton: william fitzgilbert, and joselyn the reeve, and aylward the cellarer render account of pounds s. d. for arrears of the previous year. they paid and are quit. and of pounds s. d. for landgafol. and of d. by increment of tax for a park which william of witherington held for nothing. and of s. d. by increment of tax for half a virgate of land which james oisel held without service. and of s. for assize pleas in the new market. and of s. by increment of tax for other assize pleas in the market this year. sum of the whole tax pounds s. d. in quittance of one reeve, s. in quittance for repairing the bridge, s.; of one forester, s.; of two haywards from downton and wick, s.; of one hayward from witherington, d.; of fourteen drivers from downton, wick, and nunton, for the year, s.; of two drivers from witherington for the year, s. d.; of two drivers for half the year, s.; of one swineherd, of one neaterd, of one cowherd, for the year, s.; of three shepherds from wick, barford, and nunton, for the year, s.; of one shepherd from witherington, for the year, d.; of four customary tenants, for the year, s. sum of the quittances, s. d. remainder pounds. livery: for livery to john the dean, for christmas tax, pounds s. by one tally. to the same for easter tax, pounds by one tally. to the same for st. john's tax, pounds by one tally. to the same for st. michael's tax, pounds s. by one tally. to the same for corn [grain] sold in the field pounds by two tallies. to the same for standing corn [growing crops of grain], purchases, and cheeses, pounds s. d. to the same for wool, pounds s. d. by one tally. to the same for tallage pounds by one tally. sum: pounds s. d. expenses: for ironwork of carts for year and one cart for half the year, s. d. for shoeing of plough-horses for the year, s. d. for wheels for carts, s. d. for carts made over, d. before the arrival of the carpenter. for wages of the smith for the year, s. d. for one cart bound in iron bought new, s. d. for wheels purchased for one cart to haul dung, d. for leather harness and trappings, iron links, plates, halters, d. for purchase of ropes, d. for purchase of sacks, d. for purchase of locks for the granary, d. for making gates for the sheepfold, s. for one gate for the farm yard, d. for an axe and tallow purchased and for repairing the spindles of the mill for the year, s. d. for one millstone purchased for the mill s. for making one gate near the mill, d. for meat prepared in the larder, s. for beer bought for cleaning carcasses, s. d. for digging perches of land around the pasture in the marsh, s. d.; for each perch d. ob. for the dovecote newly made, s. d. ob. for cutting thick planks for flooring both dispensary and butlery, s. d. for nails or pegs bought for planking beyond the cellar, d. for enclosing the garden by making gates, s. d. ob. for digging in the gardens, s. d. for the winter work of carts, s. d. for the lent work of carts, s. d. for spreading acres with dung, d. for threshing quarters of wheat at mardon for seed, s. for winnowing the same, d. for winnowing quarters of grain for seed, s. d. for threshing quarters of grain s.; for each quarter d. for threshing quarters of mixed corn [grain], s. d. for threshing quarters of barley, s. d. for threshing quarters of oats, s. d. ob. for hauling gravel to the bridge and causeway, d. for cost of dairy, viz., tines of salt, cloth, and pots, s. d. for purchase of oxen, pounds s. for hoeing acres, s. d. for wages of two carters, one neatherd, for the year, s. for wages of one carpenter for the year, s. d. for wages of one dairy woman, s. d. for payment of mowers of the meadow at nunton, d. for sheep purchased, s. for wages of one neatherd from nunton, d. for carrying casks of wine by walter locard, in the time of martinmas, s. d. for the carrying of casks of wine from southampton to downton by the seneschal, s. d. at the feast of st. lawrence. for digging perches in the farmyard, s. d.; for each perch d. ob. for allowance of food of robert of lurdon, who was sick for days, with his man, s. d. for allowance of food to sewal who was caring for horses of the lord bishop for weeks, d. for allowance of food for roger walselin, for the two times he made gifts to the lord king at clarendon, s. d. by two tallies. for allowance of food of master robert basset, for journeys, s. d. ob. for livery of william fitzgilbert, s. d. for ells of canvas purchased for laying over the wool, and cushions prepared for the court, s. for sheep purchased, with lambs, s. sum: pounds. d. sum of livery and expenses: pounds s. d. and there is owing: pounds s. d. ob. produce of granary: the same render account of and a half quarters and strike from all the produce of grain; and of quarters brought from mardon. sum: and a half quarters and strike. for sowing acres, quarters. for bread for the lord bishop, and a half quarters delivered to john de dispensa by three tallies. for the balance sold, quarters and strike. the same render account of and a half quarters from all the produce of small corn [grain]. for the balance sold, all. the same render account of quarters and strike from all the produce of mixed corn [grain]. for seeding acres, quarters and strike. for bread for autumnal works, quarters. for the balance sold, quarters. the same render account of and a half quarters from all the produce of barley. for sowing and a half acres, and a half quarters. for payment for carts, quarter. for payment for hauling dung, quarters. for allowance of food of two carters, one carpenter, one neatherd, one dairy woman, for the year, and a half quarters. for feeding hogs in the winter, quarters. for the balance sold, and a half quarters. it is quit. the same render account of quarters and bushels from all the produce of oats. in sowing and a half acres, and a half quarters. for prebends of the lord bishop and lord king, on many occasions, and a half quarters and bushels, by five tallies. for prebends of roger wakelin, and a half quarters and bushels. for prebends of master robert basset, and a half quarters and bushel. for provender of horses of the lord bishop and horse of richard marsh, for weeks, and a half quarters and bushels. for provender of horses of the lord bishop who stayed nights at downton, quarters. for that sent to knoyle, quarters. for provender of horse of robert of lurdon for weeks, and a half quarters. for prebends of two carters quarters and bushels. for the balance sold, quarters. and there remains quarters and strike. the same render account of and a half quarters from the whole produce of beans. for planting in the garden half a quarter. for the balance sold, quarters. it is quit. the same render account of quarters and strike from all the produce of peas. for sowing acres, and a half quarters. for the balance sold and a half quarters and strike. it is quit. the same render account of quarters from all the produce of vetches [pea plants used for animal fodder]. for feeding pigs in the winter, all. it is quit. beasts of burden: the same render account of oxen remaining from the previous year. and of yoked from useless animals. and of from the will of robert copp. and of purchased. sum: . of living ones sold, . of dead, . sum: . and there remain oxen. the same render account of goats remaining from the previous year. all remain. the same render account of cows remaining from the previous year. and of yoked from useless animals, and of found. sum: . by death, . by killing, brought for the need of the lord bishop at cranbourne, . sum: . and there remain cows. the same render account of heifers and steers remaining from the previous year. in yoked cows, heifers. in yoked oxen, bulls. sum: . the same render account of yearlings remaining from the previous year. by death, . there remain , of which are female, male. the same render account of calves born this year from cows, because the rest were sterile. in tithes, . there remain . the same render account of sheep remaining from the previous year. and of sheep for the payment of herbage, after birth, and before clipping. and of bought before birth. and of young ewes mixed with two-year-olds. sum: . in live ones sold at the time of martinmas, . in those dead before birth, . in those dead after birth and before shearing, . sum: . and there remain sheep. the same render account of wethers [castrated rams] remaining from the previous year. and of wethers mixed with two-year- olds. and of rams from lindsey, which came by brother walter before shearing. sum: . in living ones sold at the time of martinmas, wethers, rams. paid to the men of bishopton before shearing by writ of the seneschal, . by death, before shearing, . sum: . and there remain sheep. the same render account of old sheep remaining, with lambs from the previous year. by death before shearing, . and there remain ; whence are young ewes, mixed with sheep, and males, mixed with wethers. the same render account of lambs born from sheep this year because were sterile, and aborted. in payment of the smith, ; of shepherds, . in tithes, . in those dead before shearing, . sum: . and there remain lambs. the same render account of large sheep-skins whence were from the rams of lindsey. in tithes, . in payment of three shepherds, . in the balance sold skins with skins from lindsey which made pondera. the same render account of lamb skins. in the balance sold, all, which made and a half pondera. the same render account of cheeses from arrears of the previous year. and of small cheeses. and of larger ones from the arrears of the previous year. and of cheeses which were begun the th of april and finished on the feast of st. michael, both days being counted. and they made cheeses two by two for days, viz. from the th april to the vigil of the feast of st. peter in chains, both days being counted. sum: cheeses. in tithes . in payment of a shepherd, and mowers of the meadow from nunton, . in duty of a carter, . in autumnal work, . in expenses of the bishop in the kitchen, by one tally. in the balance sold, cheeses, which made heads, from arrears of the previous year. in the balance sold, cheeses, which made heads in this year. in expenses of the lord king and lord bishop on the feasts of st. leonard and st. martin, small cheeses, and larger ones from the arrears of the previous year. and there remain small cheeses which make one head. the same render account of hogs remaining from the previous year. and of that were born of sows. sum: pigs. in tithes, . by death, . in those killed for the larder, . sum: pigs. and there remain pigs. also suckling pigs. sum of the whole: pigs. the same render account of chickens from arrears of the previous year. and of chickens for cheriset. sum: . in expenses of the lord bishop on the feast of st. martin, by one tally. in expenses of the same on the feast of st. leonard, , by one tally. in expenses of the lord king and bishop on the feast of the apostles peter and paul, chickens, by two tallies. in allowance for food for roger wakelin, . in allowance of food for master robert basset, . by death, . sum: chickens. it is quit. the same render account of chickens, sticae of eels, suckling pigs, freed for the expenses of the lord king and bishop. from the larder: the same freed for the expenses of the lord bishop meat of cows taken to cranbourne. the same render account of sides of bacon, arrears of the previous year. and of oxen and quarter of old beef from arrears of the previous year. and of hogs from downton. and of hogs from mardon. and of hogs from overton. and of hogs from high-clere. and of hogs from harwell. and of hogs from knoyle. sum: hogs, and meat of oxen and one quarter. in expenses of the lord bishop at the feast of st. martin, sides of bacon. in expenses of the same at the feast of st. leonard, sides of bacon, the meat of oxen, and quarter of an ox. in expenses of the same on the morrow of the feast of the holy cross, delivered to nicolas the cook, sides of bacon. in expenses of the lord bishop delivered to the same cook at knoyle on the saturday before the feast of st. michael, sides of bacon. in expenses of the same and of the lord king on the feast of the apostles peter and paul, sides of bacon. in allowance of food to master robert basset on the feast of all saints, half a side of bacon. in allowance of food to the same on wednesday and thursday before pentecost, side of bacon. in those sent to knoyle for autumnal work, sides of bacon. in three autumnal festivals at downton, and a half sides of bacon. sum: sides of bacon. and there remain sides of bacon. the same render account of skins, sausages, and offal of the said hogs. in expenses of the lord king and lord bishop at the feast of st. leonard, all. nothing remains." king richard the lion-hearted, unlike his father, was interested in warfare. he spent most of his term on crusade to recover jerusalem. for his expenses, he imposed a tax of one-tenth of rents and income from moveable goods. he also sold town charters, heiresses and heirs, widows, sheriffdoms, justiceships, earldoms, and licenses for tournaments. the crusades' contact with arabs brought to england arabic numerals, which greatly facilitated arithmetic, arab horses, and an expansion of trade. the church decreed that those who went on these crusades would be remitted of his sins. at the end of this period was the reign of king john, a short man. after his mother eleanor's death in , john ruled without her influence. he had no conscience and his oaths were no good. he trusted and was trusted by no one. he had a huge appetite for money. he imposed , pounds [ , marks] on london for confirmation of its charter. he imposed levies on the capital value of all personal and moveable goods. it began the occasional subsidies called "tenths and fifteenths" from all people on incomes from movables: one-tenth from boroughs and royal demesne land, and one-fifteenth elsewhere. he sold the wardships of minors and the marriages of heiresses to the highest bidder, no matter how base. he appointed unprincipled men to be both sheriff and justice, enabling them to blackmail property holders with vexatious writs and false accusations. writs were withheld or sold at exorbitant prices. crushing penalties were imposed to increase the profits of justice. he asserted over fowls of the air the same exclusive right as over beasts of the forest. the story of robin hood portrays john's attempt to gain the crown prematurely while richard was on the crusades to recover jerusalem for christendom. (in , the bishop barons had refused to pay for a campaign of richard's war in normandy arguing that military service was only due within the kingdom of england. when richard was captured, every person in the realm was required to pay a part of his ransom of , pounds, which was double the whole revenue of the crown. aids, tallages, and carucage were imposed. the heaviest impost was one-fourth of revenue or of goods from every person.) in , strong northern barons refused a royal demand for service in france or scutage, arguing that the amount was not within custom or otherwise justified. john had private and public enemies. no one trusted him and he trusted no one. his heavy- handed and arbitrary rule quickly alienated all sectors of the population: other barons, bishops, london, and the commons. they joined the barons to pressure him to sign the magna carta correcting his abuses. for instance, since john had extracted many heavy fines from barons by personally adjudging them blameworthy in disputes with others, the barons wanted judgment by their peers under the established law of the courts. in arms, the barons forced john to sign the magna carta correcting his abuses. - the law - no one, including the lord of a manor, may take land from anyone else, for instance, by the customary process of distress, without a judgment from the royal court. this did not apply to london, where a landlord leasing or renting land could take distress in his fee. no one, including the lord of a manor, shall deprive an heir of the land possessed by his father, i.e. his birthright. a tenant may marry off a daughter unless his lord shows some just cause for refusing to consent to the marriage. a tenant had to pay an "aid" to his lord when the lord's daughter married, when the lord's son was knighted, or when the lord's person was ransomed. a man [or woman] may not will away his land, but he may sell it during his lifetime. the land of a knight or other tenant of a military fee is inherited by his eldest son. the socage land of a free sokeman goes by its ancient custom before the norman conquest. if a man purchased land after his marriage, his wife's dower is still one-third of the land he had when they married, or less if he had endowed her with less. but he could then enlarge her dower to one-third of all of his lands. the same rule applied if the man had no land, but endowed his wife with chattel or money instead. dower law prevented a woman from selling her dower during the life of her husband. but he could sell it or give it away. on his death, its possessor had to give the widow the equivalent worth of the property. a widower had all his wife's lands by curtesy of the nation for his lifetime to the exclusion of her heirs. the capital messuage [chief manor] could not be given in dower or divided, but went in its entirety to its heir. heirs were firstly sons, then daughters, then grandsons per stirpes, then granddaughters per stirpes, then brothers, and then sisters of the decedent. [by taking "per stirpes" instead of "per capita", a person's share goes to that person's heirs if that person predeceases the ancestor-decedent.] male heirs of land held by military service or sons of knights who were under the age of twenty-one were considered to be in custody of their lords. the lord had wardship over the heir's land, excluding the third that was the widow's dower for her life. he had to maintain the heir in a manner suitable to his dignity and restore to him when he came of age his inheritance in good condition discharged from debts. male heirs of sokemen who were under the age of fifteen were in the custody of their nearest kindred. the son of a burgess came of age when he could count money, measure cloth, and manage his father's concerns. female heirs remained in the custody of their lords until they married. the lord was bound to find a marriage for his ward when she became fourteen years of age and then deliver her inheritance to her. she could not marry without her lord's consent, because her husband was expected to be the lord's ally and to do homage to him. but if a female heir lost her virginity, her inheritance escheated to her lord. a woman with property could not do homage because she could not perform military service, but she generally swore fealty. she could receive homage from men. bastards were not heirs, even if their father married their mother after birth. any adult inheriting land had to pay a "relief" to the lord of the land. for a knight's fee, this was s. for socage land, this was one year's value. the amount for a barony depended upon the king's pleasure. heirs (but not widows) were bound to pay the debts of their fathers and ancestors. a man who married a woman who had inherited land could not sell this land without the consent of its heirs. when a man dies, his wife shall take one-third and his heirs shall take one-third of his chattels [movables or personal property]. the other third he may dispose of by will. if he had no heirs and no will [intestate], all his chattels would escheat to his lord. any distribution of chattels would take place after all the decedent's debts were paid from the property. a will required two witnesses. the testator could name an executor, but if he did not, the next of kin was the executor. a will could not be made by a man on his death bed because he may well have lost his memory and reason. also, he could not give to a younger son if in so doing, he would deprive his lawful heir. but he could give a marriage gift to a daughter regardless of the lawful heir. usury was receiving back more than what was lent, such as interest on a loan of money. when a usurer died, all his movables went to the king. a villein may not buy his own freedom (because all that he has is his lord's), but may be set free by his lord or by someone else who buys his freedom for him. he shall also be freed if the lord seduced his wife, drew his blood, or refused to bail him either in a civil or criminal action in which he was afterwards cleared. but a freed villein did not have status to plead in court, even if he had been knighted. if his free status were tried in court, only a freeman who was a witness to his being set free could avail himself of trial by combat to decide the issue. however, if the villein remained peacefully in a privileged town a year and a day and was received into its guild as a citizen, then he was freed from villeinage in every way. a freeman who married a villein lost his freedom. if any parent of a child was a villein, then the child was also a villein. all shipwrecked persons shall be treated with kindness and none of their goods or merchandise shall be taken from them. if one kills another on a vessel, he shall be fastened to the dead body and thrown with it into the sea. if one steals from another on a vessel, he shall be shaven, tarred and feathered, and turned ashore at the first land. passage on the thames river may not be obstructed by damming up the river on each side leaving a narrow outlet to net fish. all such weirs shall be removed. - judicial procedure - henry ii wanted all freemen to be equally protected by one system of law and government. so he opened his court, the royal court, to all people of free tenure. a court of five justices professionally expert in the law, traveled with the king, and on points of difficulty consulted with him. justices began to be more than presiding officers; they, instead of those attending, rendered the judgments. the chief court was in westminster, where the weightiest decisions were made. other professional itinerant justices appeared periodically in all counties of the nation to hear certain criminal and civil cases and to hear citizens' private civil suits [common pleas]. they came to perform many other tasks, including promulgating and enforcing new legislation, seeking out encroachments on royal rights, reviewing the local communities' and officials' performance of their public duties, imposing penalties for failure to do them or for corruption, gathering information about outlaws and non-performance of homage, and assessing feudal escheats to the crown, wardships to which the king was entitled, royal advowsons, feudal aids owed to the king, tallages of the burgesses, and debts owed to the jews. the decision-making of itinerant justices on circuits begins the process which makes the custom of the royal court the common law of the nation. the county courts, where the travelling justices heard all manner of business in the counties, adopted the doctrines of the royal court, which then acquired an appellate jurisdiction. the itinerant justices came from the same small group of royal justices who were on the royal court and the exchequer, which was headed by the justiciar. difficult cases were decided by the king and wise men of his council. tenants of manors and of escheats in royal hands, who had been excused from the monthly county court, were required to appear. side by side with the reeve and four men of the rural townships appeared the twelve legal men of each of the chartered boroughs which owed no suit to the ordinary county court. in the formation of the jury of presentment for criminal cases, each hundred sent twelve legal men and each township four to make report to the justices. women did not serve on juries. compurgation was not used; accused persons were sent directly to the ordeal. in , twelve knights or legal men from each hundred answer before any itinerant justice for their hundred in all criminal, civil, and fiscal cases. all who are bound to attend before the itinerant justices are, in the forest counties, compelled to attend the forest courts. the royal court was chiefly concerned with ) the due regulation and supervision of the conduct of local government, ) the ownership and possession of land held by free tenure ("free tenement" was decided by justices to be one held for life or one held heritably [a fee]), ) the repression of serious crime, and ) the relations between the lay and the ecclesiastical courts. the doctrine of tenure applied universally to the land law formed the basis for judicial procedure in determining land rights. those who held lands "in fee" from the king in turn subinfeudated their land to men of lesser rank. the concept of tenure covered the earl, the knight (knight's service), the church (frank-almoin [free alms]), the tenant who performed labor services, and the tenant who paid a rent (socage). other tenures were: serjeanty [providing an implement of war or performing a nonmilitary office] and burgage. all hold the land of some lord and ultimately of the king. henry was determined to protect lawful seisin of land and issued assizes giving the royal court authority to decide land law issues which had not been given justice in the county or lord's court. but he did not ordain that all litigation respecting free tenements, e.g. right of seisin, should take place in the king's court. rather he gave protection to mere possession of land, which could be justified because possession was intimately associated with the maintenance of the king's peace. these assizes included issues of novel disseisin [recent ejectment] of a person's free tenement or of his common of pasture which belonged to his freehold. though the petty assize of disseisin only provided a swift preliminary action to protect possession pending the lengthy and involved grand assize on the issue of which party had the more just claim or ultimate right of seisin, the latter action was only infrequently invoked. the temptation of a strong man to seize a neighbor's land to reap its profits for a long time until the neighbor could prove and enforce his right was deterred. any such claim of recent dispossession [novel disseisin] had to be made within three years of the disseisin. an example of a writ of novel disseisin is: the king to the sheriff, greeting. n has complained to me that r unjustly and without a judgment has disseised him of his free tenement in [houndsditch] since my last voyage to normandy. therefore i command you that, if n gives you security for prosecuting his claim, you are to see that the chattels which were taken from the tenement are restored to it, and that the tenement and the chattels remain in peace until sunday after easter. and meanwhile you are to see that the tenement is viewed by twelve free and lawfulmen of the neighborhood, and their names endorsed on this writ. and summon them by good summoners to be before me or my justices on the sunday after easter, ready to make the recognition. and summon r. or his bailiff if he himself cannot be found, on the security of gage and reliable securities to be there then to hear the recognition. and have there the summoners, and this writ and the names of the sureties. witness etc. then an assize panel of recognition summoned concurrently with the defendant and before he had pleaded, viewed the land in question and answered, from their knowledge, these questions of fact: ) was the plaintiff disseised of the freehold in question, unjustly and without judgment? ) did the defendant commit the disseisin? testimony of a warrantor (or an attorney sent by him in his place) or a charter of warranty served to prove seisin by gift, sale, or exchange. no pleadings were necessary and the action could proceed and judgment given even without the presence of the defendant. the justices amerced the losing party with a monetary penalty. a successful plaintiff might be awarded damages to compensate for the loss of revenue. there was also a writ for issues of inheritance of land called "mort d'ancestor". by law the tenure of a person who died seised of a tenure in a lord's demesne which was hereditary [seisin of fee] returned to the lord, who had to give it to the heir of the decedent. if the lord refused and kept it for himself or gave it to someone else, the heir could sue in the royal court, which used an similar assize panel of twelve men to decide whether the ancestor was seised as of fee in his demesne, if the plaintiff was the nearest heir, and whether the ancestor had died, gone on a crusade but not returned, or had become a monk. then it could give possession to the heir. since about , heiresses divided the land of their father if there was no son. the widow, of course, retained her dower rights. as of , the widow held her dower from the heir instead of from the husband's lord. if the heir was a minor, the guardian lord would be in actual control of the land. a national policy was implemented that in the case of the death of a freeholder, the rights of the family, his will, and his debts were to be provided for before relief was paid to his lord. eventually royal justices acquired authority to decide the ultimate question of right to land using the grand assize as an alternative to the traditional procedures which ended in trial by combat. issues of the ultimate right of seisin were brought to the royal court by a contestant in a local court who "put himself [or herself] upon the king's grand assize". the assize consisted of twelve knights from the county or neighborhood who were elected by four knights of the same county or neighborhood (selected by the sheriff or the suitors) and who were known as truthful men and were likely to possess knowledge of the facts, either from personal seeing or hearing, or from statements which their fathers had made to them from their personal knowledge. the avenue by which a person who felt he had not had justice in the manor court on his claim for certain freehold land appealed to the king was by writ of right after the manor court's decision or by a writ praecipe during the manor court's proceeding. an example of a writ praecipe is: "the king to the sheriff greeting. command [praecipe] n. to render to r. justly and without delay one hide of land in a certain vill, which the said r. complains that the aforesaid n. is withholding from him. if he does not do so, summon him by good summoners to be before me or my justices on the day after the octaves of easter, to show why he has not done so. and have the summoners and this writ. witness." when the parties appeared in court, the claimant states his suit such as: "i claim against this n. the fee of half a knight and two carucates of land in a certain vill as my right and my inheritance, of which my father (or grandfather) was seized in his demesne as of fee in the time of king henry the first, and from which he took the profits to the value of five shillings at least, in grain and hay and other profits; and this i am ready to prove by this freeman of mine, h., and if any evil befalls him them by this other man or by this third man, who saw and heard it". then the defendant chose to deny the claim word for word with proof by combat or to put himself upon the grand assize of the king. if he chose trial by combat, the parties or their champions fought. the party losing, usually by crying craven, had to pay a fine of s. if the grand assize was chosen, the action was removed to the royal court. a writ of grand assize was issued as follows: "the king to the sheriff, greeting. summon by good summoners the following twelve, namely, a. b. ..., to be before me or my justices at a certain place on a certain day, ready to declare on oath whether n. or r. has the greater right in one hide of land (or other things claimed) which the aforesaid r. claims against the aforesaid n., who is tenant, and in respect of which the aforesaid n., who is tenant, has put himself upon my assize and has sought a recogniton to determine which of them has the greater right in the things claimed. and meanwhile the twelve shall view the land (or tenements from which the services are demanded). and summon by good summoners n., who is tenant, to be there to hear the recogniton. witness..." the claimant could object to any of the twelve knights for just cause as determined by the court. each of the twelve gave an oath as to whether the plaintiff's or the defendant's position was correct. this oath was not to speak falsehood nor conceal truth according to knowledge gained by eye-witness or "by the words of their fathers and by such words as they are bound to have such confidence in as if they were their own". if any did not know the truth of the matter, others were found until twelve agreed [the recognitors] on which party had the greater right. perjury was punished by forfeiture of all one's goods and chattels to the king and at least one year's imprisonment. if the tenant in court vouched another to warranty, such as the lord to whom he paid homage, that warrantor would stand in his place in the proceedings. if the warrantor lost, he would have to give to his vassal equivalent land in exchange. burgage tenure was not usually decided by assize. also, if the parties were relatives, neither the assize nor the combat was available to them, but the matter had to be decided by the law of inheritance. itinerant justices could conduct these assizes: petty and grand. in , the hundred is empowered to act on all the business of the session, including all recognitions and petty assizes ordered by the king's writ, where the property in dispute was worth no more than s. [ten pounds] a year. the four knights came to be selected by the suitors of the county court rather than by the sheriff. this assize procedure extended in time to all other types of civil actions. also removable to the royal court from the county courts were issues of a lord's claim to a person as his villein (combat not available), service or relief due to a lord, dower rights, a creditor's refusal to restore a gage [something given as security] to a debtor who offered payment or a deposit, money due to a lender, a seller, or a person to whom one had an obligation under a charter, fish or harvest or cattle taken from lands unjustly occupied, cattle taken from pasture, rights to enjoy a common, to stop troubling someone's transport, to make restitution of land wrongfully occupied, to make a lord's bailiff account to him for the profits of the manor. the royal court also decided disputes regarding baronies, nuisance or encroachments on royal land or public ways or public waterways, such as diverting waters from their right course and issues of nuisance by the making or destroying of a ditch or the destruction of a pond by a mill to the injury of a person's freehold. other pleas of the crown were: insult to the royal dignity, treason, breaches of safe-conducts, and injury to the king's servants. henry involved the royal court in many criminal issues, using the agencies of the county and hundred courts. to detect crimes, he required royal justices to routinely ask selected representatives: knights or other landholders, of every neighborhood if any person were suspected of any murder, robbery, theft, etc. a traveling royal justice or a sheriff would then hold an inquest, in which the representatives answered by oath what people were reputed to have done certain crimes. they made such inquiries through assizes of presentment, usually composed of twelve men from each hundred and the four best men of each township. (these later evolved into grand juries). these assizes were an ancient institution in many parts of the country. they consisted of representatives of the hundreds, usually knights, and villages who testified under oath to all crimes committed in their neighborhood, and indicted those they suspected as responsible and those harboring them. what henry's assize did was to insist upon the adoption of a standard procedure everywhere systematically. the procedure was made more regular instead of depending on crime waves. if indicted, the suspected persons were then sent to the ordeal. there was no trial by compurgation in the royal courts, which was abolished by henry. if determined guilty, he forfeited his chattels to the king and his land reverted to his landlord. if he passed the ordeal but was ill-famed in the community, he could be banished from the community. the ordeal was abolished by the lateran council of . as before, a person could also be brought to trial by the accusation of the person wronged. if the accused still denied the charge after the accuser testified and the matter investigated by inquiries and interrogation and then analyzed, trial by combat was held, unless the accuser was over the age of sixty or maimed, in which case the accused went to the ordeal. if a man failed at the ordeal, the penalty prescribed by the assize of clarendon of was loss of a foot and abjuring the realm. the assize of northhampton of added loss of the right hand. under the former assize, a man who had a bad reputation had to abjure the realm even if he had successfully undergone the ordeal. criminal matters such as killing the king or sedition or betraying the nation or the army, fraudulent concealment of treasure trove [finding a hoard of coins which had been buried when danger approached], breach of the king's peace, homicide, murder (homicide for which there were no eye-witnesses), burning (a town, house, men, animals or other chattel for hatred or revenge), robbery, rape and falsifying (e.g. false charters or false measures or false money) were punishable by death or loss of limb. all murders were now punished alike because the applicability of the murdrum couldn't be determined since it was impossible to prove that the slain man had been english. trespass was a serious and forcible breach of the peace onto land that developed from the criminal law of felony. one found guilty of it could be fined and imprisoned as well as amerced. house-breaking, harboring outlaws, and interference with the royal perquisites of shipwreck and the beasts of the sea which were stranded on the coast [such as whales and sturgeon] were also punishable in the royal court. the royal court had grown substantially and was not always presided over by the king. to avoid court agents from having too much discretionary power, there was a systematic procedure for bringing cases to the royal court. first, a plaintiff had to apply to the king's chancery for a standardized writ into which the cause had to fit. the plaintiff had to pay a fee and provide a surety that the plea was brought in good faith. the progress of the suit was controlled at crucial points by precisely formulated writs to the sheriff, instructing him for instance, to put the disputed property under royal protection pending a decision, to impanel an assize and have it view the property in advance of the justices' arrival, to ascertain a point of fact material to the plea, or to summon a 'warrantor' to support a claim by the defendant. the royal court kept a record on its cases on parchment kept rolled up: its "rolls". the oldest roll of is almost completely comprised of land cases. anyone could appoint an agent, an "attorney", to appear in court on his behalf, it being assumed that the principal could not be present and royal authorization given. a wife could represent her husband. the principal was then bound by the actions of his agent. gradually men appeared who made a business of representing whoever would employ them. the common law system became committed to the "adversary system" with the parties struggling judicially against each other. the royal court took jurisdiction over issues of whether certain land was civil or ecclesiastical [assize utrum], and therefore whether the land owed services or payment to the crown or not. it also heard issues of disturbance of advowson, a complex of rights to income from a church and to the selection of a parson for the church [assize of darrein [last] presentment]. many churches had been built by a lord on his manor for his villeins. the lord had then appointed a parson and provided for his upkeep out of the income of the church. in later times, the lord's chosen parson was formally appointed by the bishop. by the s, many lords had given their advowsons to abbeys. this procedure used twelve recognitors selected by the sheriff. as before, the land of any person who had been outlawed or convicted of a felony escheated to his lord. his moveable goods and chattels became the king's. if he was executed, his heirs received nothing because they were of the same blood as the felon, which was corrupt: "corruption of the blood". the loss of civil rights and capacities after a sentence of death for felony or treason, which resulted in forfeiture of property and corruption of the blood, was called "attainder". the manor court heard cases arising out of the unfree tenures of the lord's vassals. it also heard distraint, also called "distress", issues. distraint was a landlord's method of forcing a tenant to perform the services of his fief. to distrain by the fief, a lord first obtained a judgment of his court. otherwise, he distrained only by goods and chattels without judgment of his court. a distraint was merely a security to secure a person's services, if he agreed he owed them, or his attendance in court, if he did not agree that he owed them. law and custom restricted the type of goods and chattels distrainable, and the time and manner of distraint. for instance, neither clothes, household utensils, nor a riding horse was distrainable. the lord could not use the chattels taken while they were in his custody. if cattle in custody were not accessible to the tenant, the lord had to feed them at his expense. the lord, if he were not the king, could not sell the chattel. this court also determined inheritance and dower issues. the court of the vill enforced the village ordinances. the hundred court met twice a month and dealt with the petty crimes of lowly men in the neighborhood of a few vills. the county and borough courts heard cases of felonies, accusations against freemen, tort, and debts. the knights make the county courts work as legal and administrative agencies of the crown. the peace of the sheriff still exists for his county. the king's peace may still be specially given, but it will cease upon the death of the king. law required every good and lawful man to be bound to follow the hue and cry when it was raised against an offender who was fleeing. the village reeve was expected to lead the chase to the boundary of the next jurisdiction, which would then take the responsibility to catch the man. admiralty issues (since no assize could be summoned on the high seas), and tenement issues of land held in frankalmoin ["free alms" for the poor to relieve the king of this burden], where the tenant was a cleric were heard in the ecclesiastical courts. before henry's reign, the church, with the pope's backing, had become more powerful and asserted more authority. henry tried to return to the concept of the king being appointed by god and as the head of the church as well as of the state, as in henry i's time, and to include the church in his reform of the legal system, which would make the spiritual jurisdiction and temporal jurisdiction conform to a common justice. toward this end, he published the constitutions of clarendon. but the archbishop of canterbury, thomas becket, refused to agree to them, although as chancellor he had seen the beneficial effects on the kingdom of henry's legal measures. the disagreement came to a head in henry's attempt to establish the principle of "one law to all" by having church clerics punished by the civil courts as before, instead of having "benefit of clergy" to be tried and punished only in ecclesiastical courts, even for secular crimes. clerics composed about one-sixth the population. the church courts had characteristically punished with spiritual penalties of a fine or a penance, and at most defrocking. it could not impose a death penalty, even for murder. when archbishop becket was murdered and became a martyr, "benefit of clergy" became a standard right, except for offenses in the king's forests. appeals could be made to the pope without the king's permission. the king could take a criminal cleric's chattels, but not his life. however, though theoretically bishops were elected by the body of bishops with the approval of the king, as a practical matter, the king chose the bishops and the abbots. it was a constant matter of dispute, in which the pope would sometimes involve himself. selection of archbishops was also a frequent matter of contention between king and pope. the church copied the assize procedure developed by the royal court to detect ecclesiastical offenses. trial was still by compurgation. bishops could request the chancery to imprison an offender who had remained excommunicant for forty days, until he made amends. chancery complied as a matter of course. this went on for six centuries. the delineations of jurisdiction among these courts were confused and there was much competing and overlapping of jurisdictions. however, the court could appoint arbitrators or suggest to the parties to compromise to avoid the harshness of a decisive judgment which might drive the losing party to violent self-help. the office of coroner was established about to supplement the judicial investigations of crimes with local officers prior to the arrival of the itinerant justices. four knights who were residents of the county and possessed sufficient land were elected by the county court for life. sometimes they had county and royal connections instead. they received no pay. they determined if sudden deaths were accidental or due to murder and the cause of death of prisoners. they also held inquests on other crime such as bodily injury, rape, and prison break. they attached [arrested] the accused and evaluated and guarded his chattels until after the trial. if the accused was found guilty, his possessions went to the king. the coroner sat with the sheriff at every county court and went with him on his turns. this office and the forbidding of sheriffs to act as justices in their own counties reduced the power of the sheriffs. the responsibility of receiving the oath of the peace is changed from the sheriff to knights, the duty of the sheriffs being only to receive and keep the criminals taken by these knights until the justices came to try them. also, at this time, the constitution of the grand jury of the county was defined. first, four knights were to be chosen in the county court. these were to select on oath two knights from each hundred. these two, also on oath, are to add by co-optation ten more for the jury of the hundred. in london, if one of two witnesses for the defence died while an action was pending, the survivor, after offering his oath, could proceed to the grave of the dead witness, and there offer oath as to what the dead man would have sworn if he had been alive. if a foreigner was bound to make oath for debt or any misdeed, he could make it with six others, his own oath being the seventh; but if could not find six supporters, he alone could make the oath and take it in the six nearest churches. in london, the method of capital punishment was being confined to hanging, instead of also being in the form of beheading, burning, drowning, stoning, or hurling from a rock. in cases of drowning, the offender was first sewn up in a sack with a snake, a dog, an ape, and a cock. chief justiciar ranulph glanvill wrote a treatise on the writs which could be brought in the royal court and the way they could be used. it was a practical manual of procedure and of the law administered in the royal court. there are personal actions such as "debt" for specific chattel or specific sum of money. this splits into two actions. the detinue award is for the specific chattel or its value. the action of "replevin" is available to the tenant to recover personal property which had been wrongly distrained, usually cattle; the goods are "repledged" pending action. also, but rarely used, are "covenant" to protect termors for leases of land for terms of years, and "trepass": a semi-criminal action brought by a private party for an offense punishable by death (or in the s by mutilation) such as murder, rape, robbery, or mayhem, that is done with force of arms and against the peace of the king. the use of trespass grew as private actions for felony were supplanted by public indictment. it occasioned outlawry in default of appearance. these personal actions were initiated in common law courts by their respective writs. these are some of the cases of novel disseisin brought to the king's court: woodbridge v. bardolf ( , king's court): ralf of woodbridge seeks before the justices his free tenement in hebston by the assize of novel disseisin against hugh bardolf. against which assize hugh said that he had that seisin by judgment of his court for the default of the same ralf. and the court has recorded the summons and distraints reasonably made on the same ralf. and ralf himself has acknowledged the summons and distraints and said that he ought not hold anything from him in that land; rather, it is of another's fee. and because neither he nor anyone for him has complained to the justices that hugh unjustly drew him into a plea concerning a tenement which ralf himself held of the fee of another lord, it is considered that hugh hold in peace. and let ralf plead by writ of right if he want and be in mercy for his false claim. turroc v. fitz walter ( , king's court): the assize came to recognize if clement son of walter unjustly and without judgment disseised matilda of turroc of her free tenement within the assize. clement comes and says that he disseised her by judgment of his court. the court is present and records that she occupied more of her lord's land than she had in dower by the sheriff and by order of the lord king, so that she was summoned and distrained to come in to court, and she so responded that she remained in mercy of s. by judgment, so that for that amercement and for other complaints she made fine with her lord for / mark [ s.] and put her land in pledge in his court and did not want to render the / mark [ s.]. and therefore by judgment of his court he seised it. matilda denies all word for word. and the same clement only produces two men from his court; and it is considered that it was no court. judgment: let matilda have her seisin and let clement be in mercy for disseisin. fitz hereward v. prior of lecton ( , king's court): the assize came to recognize if the prior of lecton unjustly and without judgment disseised reginald son of hereward and essolda his wife of his free tenement in clapston after the first coronation of the lord king. the prior says that the assize ought not be taken thereof, because he seised that land by judgment of his court for default of his service and his rent, whereof he has his court present, which asserts the same thing. it is considered that the prior replevy [give back] to them their land and give them a day in his court concerning the arrears of rents and services. and let him treat them justly by judgment of his court. stanfeld v. brewes ( , king's court): the assize comes to recognize if simon of brewes and luke cleric and peter of brewes unjustly and without a judgment disseised odo of stanfeld and juliana his wife of her free tenement in michehey within the assize. simon says that the assize ought not be taken thereof, because he took that land into his hand by judgment of his court -- which he produced and which attests to this -- for default of his service. and it was testified that odo holds that land from the same simon. simon was ordered to replevy that land to odo as well as the chattels and to treat him rightfully in his court. fitz william v. amice et al. ( , king's court): the assize comes to recognize if amice who was the wife of richard earl of clare and hugh of ceriton, john of cornherd, william of wattevill, alexander son of gilbert, alexander son of matthew, bartholomew son of alexander, robert of cornherd, and geoffrey son of leveric unjustly and without judgment disseised richard son of william of sudbury of his free tenement in sudbury after the feast of st michael next before the coronation of the lord king. the countess says that, when she was separated by papal order from the earl of clare her husband by reason of consanguinity, to which husband the vill of sudbury had been given with her as marriage portion, she came to sudbury and convoked her court and made the same richard to be summoned to come to show by what warrant he held her land. he willingly entered into the plea and vouched the earl of clare her former husband to warrant and at the day given him to have [his warrantor] he did not have him. and thus by consideration of her court she seised her land and holds it. which court she produced and which attests this. richard comes and denies that he was ever summoned or came into her court by summons or vouched to warranty or so lost seisin by consideration of the court of the countess. and this he offers [to prove]. it is considered that he defend himself -handed that he did not willingly enter into the plea and vouch to warranty. let him wage his law [prove by the -handed oath, thus, by compurgation]. pledges of the law: hugh son of hugh, wido of sudbury. day is given them at the quindene of st. john. this is the suit of richard of sudbury: [there follow the names, but only of men] against the countess amice who was the countess of clare, concerning whom he had complained concerning a novel disseisin of his free tenement in sudbury. she said that by judgment of her court for default of warranty which he had vouched did she make the [dis]seisin and thereof did she produce suit. and he denied against her and against the suit, and law was adjudged. and he comes with his law and makes it with the abovesaid suit. therefore it is considered that he recover thereof his seisin; let the countess be in mercy for unjust disseisin and also her men, of whom the same richard has complained. and let the same countess return to him the damages done thereof by a jury of law-worthy men of the vicinity. the names of the men of the countess are in the writ. a sample of crown pleas in several hundreds or wapentakes [danish name for a hundred] from to are: . denise, who was wife to anthony, appeals nicholas kam of the death of anthony, her husband, for that he wickedly slew her husband; and this she offers to prove against him under award of the court. and nicholas defends all of it. it is considered that denise's appeal is null, for in it she does not say that she saw the deed. the jurors being asked, say that they suspect him of it; the whole county likewise suspects him. let him purge himself by water [ordeal] under the assize. he has waged his law. . william de ros appeals ailward bere, roger bald, robert merchant, and nicholas parmenter, for that they came to his house and wickedly in the king's peace took away from him a certain villein of his whom he kept in chains because he wished to run away, and led him off, and in robbery carried away his wife's coffer with one mark of silver and other chattels; and this he offers to prove by his son, robert de ros, who saw it. and ailward and the others have come and defended the felony, robbery, and breach of the king's peace, and say that (as the custom is in cornwall) roger of prideaux, by the sheriff's orders, caused twelve men to come together and make oath about the said villein, whether he was the king's villein or william's and it was found that he was the king's villein, so the said roger the serjeant demanded that [william] should surrender him, and he refused, so [roger] sent to the sheriff, who then sent to deliver [the villein], who, however, had escaped and was not to be found, and william makes this appeal because he wishes to keep the chattels of thomas [the villein], to wit, two oxen, one cow, one mare, two pigs, nine sheep, eleven goats. and that this is so the jurors testify. judgment: william and robert in mercy for the false claim. william's amercement, a half-mark. robert's amercement, a half-mark. pledge for the mark, warin, robert's son. let the king have his chattels from william. pledge for the chattels, richard, hervey's son. . serlo of ennis-caven appeals osbert of dimiliock and jordan, walter's son, for that they in the king's peace wickedly assaulted, beat and seriously wounded him, so that by reason of the beating three bones were extracted from his head; and this he offers to prove against him under the court's award as a man maimed by that mayhem. and it is testified by the coroners that the wounds when fresh were shown in the county [court], and that [the bones were broken] as aforesaid. and osbert and jordan come and defend word by word. it is considered that osbert do purge himself by ordeal of iron on account of the appeal, for serlo betook himself against osbert in the first instance. and let jordan be in custody until it be known how osbert shall fare. and the other persons who are appealed as accessories are to be under pledge until [osbert's fate] be known. . the jurors say that they suspect william fisman of the death of agnes of chilleu, for the day before he had threatened her body and goods. and the four neighboring townships being sworn, suspect him of it. it is considered that he purge himself by water under the assize. . william burnell and luke of the well are suspected of the burglary at the house of richard palmer by the jurors of the hundred, and by the four neighboring townships, which are sworn. let them purge themselves by water under the assize. . malot crawe appeals robert, godfrey's son, of rape. he comes and defends. it is testified that he thus raped her and that she was seen bleeding. by leave of the justices they made concord on the terms of his espousing her. . walter wifin was burgled, and of his chattels taken from his house in the burglary certain boots were found in the house of lefchild of ranam, and the said walter pursues those boots as his. and lefchild said that he bought them in bodmin market for / pence, but he knows not from whom. and besides walter says that eleven ells of linen cloth, part of the stolen goods, were sold in lefchild's house, and all the other proceeds of the burglary, and that lefchild was the receiver of the burglars, namely, robert of hideford and alan the foresters, whom he [walter] had appealed of the crime. and lefchild defends. the jurors on being asked, say that they suspect lefchild of the said receipt. so let him purge himself by water under the assize. . eadmer of penwithen appeals martin, robert and thomas of penwithen, for that robert wounded him in the head so that twenty- eight pieces of bone were extracted, and meanwhile martin and thomas held him; and this he offers to deraign against the said robert as a man thereby maimed, under the court's award. and robert comes and defends all of it word by word. it is considered that he purge himself by ordeal of iron. let the others be in custody until it be known how robert shall fare. afterwards eadmer came and withdrew himself, and submitted to an amercement of one mark. pledges, reinfrid, gill's son, and philip his brother. let the other appellees go quit. . reginald le teinus accused of the receipt and fellowship of robert the outlaw comes and defends. the jurors say that they suspect him, and the four neighboring townships say that they suspect him of it. so let him purge himself by water under the assize. and there must be inquiry as to richard revel, who was sheriff when the said robert escaped from his custody. . osbert of reterth appeals odo hay, for that he assaulted him as he was returning from bodmin market, and in the king's peace and wickedly struck him on the hand with a stick, and afterwards struck him on the arm with his sword so that he is maimed; and this he offers to prove as a maimed man. and odo defends it all. and that [osbert] is maimed is testified by knights sent to see him. judgment: let [odo] purge himself by ordeal of iron because of this appeal. . wulward of wadebridge was burgled. and odo hay, lawrence smith, osbert mediciner, and benet his son, william miller, robert of frokemere, and maud his sister, are suspected of the burglary by the jurors of the hundred and by the four nearest townships, which are sworn. let the males purge themselves by water under the assize, and maud by ordeal of iron. roger morand fled for that burglary, and he was living in bodmin, [which town is] therefore in mercy. . robert, godfrey's son, appeals philip, william's son, for that he came on the land of [robert's] lord richard fortescue, and wickedly and in the king's peace and in robbery took eight oxen and a mantle, cape, and sword, and carried them off; and this he offers to prove against him by his body under award of the court. and philip comes and defends all of it word by word. it is considered that the appeal is null, for the oxen were not robert's, but richard's. the jurors being asked, say that [philip] did no robbery to [richard]. so richard fortescue is in mercy for a false appeal, and let philip be quit. . peter burel appeals anketil of wingely, for that he wickedly in the king's peace assaulted him in the field where he was pasturing his oxen, and beat him, and gave him four wounds in the head, and in robbery took from him an axe and a sword; and this he offers to prove against him; but he shows no wound. and anketil defends. and the county records that [peter] first appealed roger of tregadec of the same robbery and of the same wounds. therefore it is considered that the appeal is null, and let peter be in mercy for a false appeal. his amercement, a half-mark; pledge for it, ralph giffard. . the jurors are in mercy for a silly presentment, for they presented an appeal which was made in the hundred [court] and which was not presented in the county [court]. . lucy of morwinstow appeals robert de scaccis and roland of kellio and peter of lancarf of robbing her of twenty shillings and eight pence, and of a cloak, price a half-mark. and it is testified by the jurors that they did not rob her, and that she is a hireling, and that a man lay with her in a garden, and the boys hooted her, so that she left her cloak, and the boys took it and pawned it for two gallons of wine. it is considered that robert do give her three pence in respect of the wine and do go quit. and roland and peter neither come nor essoin [present an excuse for nonappearance] themselves. and their pledges were nicholas brother of alfred of bodmin and herbert reeve of bodmin, who are therefore in mercy. . osbert church accused of the death of roland, son of reginald of kennel, on the appeal of the said reginald, was detained in gaol and defends word by word. and reginald offers proof by the body of a certain freeman, arkald, who has his [reginald's] daughter to wife, who is to prove in his stead, since he has passed the age of sixty. osbert church defends all of it. the knights of the hundred of penwith say that they suspect him of the said death. the knights of kerrier [hundred] say the same. the knights of penwith [hundred] say the same. the knights of pyder [hundred] say the same. judgment: let him purge himself by water, and reginald is in mercy, for he does not allege sight and hearing, and because he has withdrawn himself, and put another in his place, who neither saw nor heard and yet offered to prove it, and so let both reginald and arkald be in mercy. osbert is purged by the water. osbert's pledges: henry little, henry of penant, ossulf black, roger of trevithow, john of glin, ralph of trelew. . roger of wick [was] appealed of the death of brictmer by the appeal of hawise, brictmer's wife, and was captured in flight, as say john of winielton and ralph of mertherin, but the flight is not testified by the hundred. kerier [hundred] says the same. penwith [hundred] says the same. so is considered that he purge himself by water. he is purged. roger's pledges: ralph of trelew, ogier of kurnick, richard, simon's son, alfred malvoisin, everwin of lande, john of kewerion, warin of tiwardeni, baldwin tirel, roger of trevithow, john of glin, william of dunham, thomas, osbert's son. . richard, william's son, appealed luke, richard's son, and william, the servant of alan clerk, of robbery and of binding him. the appellees have not come nor essoined themselves. the county together with the wapentake says that they were appealed, not of the king's peace, but of the sheriff's peace, so that the suit was and is in the county [court], and therefore they were not attached to come before the justices. therefore the jurors are in mercy for presenting what they ought not to have presented. . william, hawise's son, appeals richard, son of robert of somercotes, for that he came in the king's peace to his house at somercotes, and broke his house and robbed him of...[an abrasion] shillings, and a cape and surcoat, and twenty-five fowls, and twenty shillings worth of corn [grain], and wounded him in the head with the wound that he shows; and this he offers to prove against him as the court shall consider etc. and richard comes and defends the breach of the king's peace and the house-breaking, wounding and robbery, but confesses that he came to a certain house, which william asserts to be his [william's], as to his [richard's] own proper house, which escheated into his hand on the death of roger his villein, and there he took certain chattels which were his villein's and which on his villein's death were his [richard's] own: to wit, five thraves of oats, thirteen sheaves of barley, and twenty-five fowls; and he offers the king twenty shillings for an inquest [to find] whether this be so or no. and william says that richard says this unjustly, for the said roger never had that house nor dwelt therein, nor were those chattels roger's, but he [william] held that house as his own, and the chattels there seized were his. the jurors being questioned whether roger did thus hold the house of richard in villeinage, say, yes. also the coroners and the whole county testify that [william] never showed any wound until now; and the wound that he now shows is of recent date. therefore it is considered that the appeal is null, and let richard go quit, and william be in mercy for his false claim. pledges for the amercement, gilbert, robert's son, and richard, haldeng's son. . astin of wispington appeals simon of edlington, for that he wickedly and in the king's peace assaulted him in his meadows and put out his eye, so that he is maimed of that eye; and this he offers to prove etc. simon comes and defends all of it word by word. and the coroners and the county testify that hitherto the appeal has been duly sued, at first by [astin's] wife, and then by [astin himself]. judgment: let law be made, and let it be in the election of the appellee whether he or astin shall carry the iron. he has chosen that astin shall carry it. astin has waged the law. simon's pledges, william of land and his frankpledge and ralph of stures. astin's pledges, roger thorpe, osgot of wispington, and william, joel's brother. afterwards came [the appellor and appellee] and both put themselves in mercy. . gilbert of willingham appeals gilbert, geoffrey's son, for that he in the king's peace and wickedly set fire to his house and burned it, so that after the setting fire [the appellor] went forth and raised hue and cry so that his neighbors and the township of willingham came thither, and he showed them [the appellee] in flight and therefore they pursued him with the cry; and this he offers etc. and the appellee defends all of it word by word etc. and the neighbors and the township of willingham being questioned, say that they never saw him in flight, and that [the appellor] never showed him to them. likewise the jurors say that in their belief he appeals him out of spite rather than for just cause. therefore it is considered that the appeal is null, and the appellee is in mercy for a half-mark [ s.]. pledge for the amercement, robert walo. . william burel appeals walter morcock, for that he in the king's peace so struck and beat margery, [william's] wife, that he killed the child in her womb, and besides this beat her and drew blood. and william of manby, the beadle, testifies that he saw the wound while fresh and the blood in the wapentake [court]. and the serjeant of the riding and the coroners and the twelve knights testify that they never saw wound nor blood. and so it is considered that the appeal is null, for one part of the appeal being quashed, it is quashed altogether, and william burel is in mercy. let him be in custody. and william manby is in mercy for false testimony. pledges for william's amercement, richard of bilsby, elias of welton. . william marshall fled for the death of sigerid, denis' mother, whereof denis appeals him; and he was in the prior of sixhills' frank-pledge of sixhills, which is in mercy, and his chattels were two cows and one bullock. afterwards came the prior of sixhills and undertook to have william to right before the justices. and he came, and then denis, sigerid's son, came and appealed him of his mother's death. and it was testified that [denis] had an elder brother, and that nine years are past since [sigerid] died, and that she lived almost a year after she was wounded, and that denis never appealed [william] before now. therefore it is considered that the appeal is null and that denis be in mercy. pledge for the amercement, his father, ralph, son of denis. . alice, wife of geoffrey of carlby, appealed william, roger's son, and william his son and roger his son of the death of william her brother. and alice does not prosecute. therefore let her be in mercy and let her be arrested. to judgment against the sheriff who did not imprison the said persons who were attached, whereas they are appealed of homicide, and to judgment also as to a writ which he ought to produce. . hawise, thurstan's daughter, appeals walter of croxby and william miller of the death of her father and of a wound given to herself. and she has a husband, robert franchenay, who will not stir in the matter. therefore it is considered that the appeal is null, for a woman has no appeal against anyone save for the death of her husband or for rape. and let robert be in mercy on his wife's account, for a half-mark [ s.], and let the appellees be quit. pledge for robert's amercement, richard dean of mareham, who has lay property. wapentake of aswardhurn. . juliana of creeton appeals adam of merle of battery and robbery. and adam does not come, but essoins himself as being in the king's service beyond seas. and for that it is not allowed to anyone appealed of the king's peace to leave the land without a warrant before he has been before justices learned in the law, his pledges are in mercy: to wit, segar of arceles, alan of renington, and robert of searby. adam himself is excused from the plea by the essoin that he has cast. . thomas, leofwin's son, appeals alan harvester, for that he in the king's peace assaulted him as he went on the highway, and with his force carried him into alan's house, and struck him on the arm so that he broke a small bone of his arm, whereby he is maimed, and robbed him of his cape and his knife, and held him while eimma, [alan's] wife, cut off one of his testicles and ralph pilate the other, and when he was thus dismembered and ill- treated, the said alan with his force carried him back into the road, whereupon as soon as might be he raised the cry, and the neighbors came to the cry, and saw him thus ill-treated, and then at once he sent to the king's serjeant, who came and found, so [thomas] says, the robbed things in alan's house and then as soon as might be [thomas] went to the wapentake [court] and to the county [court] and showed all this. so inquiry is made of the king's sergeant, who testifies that he came to alan's house and there found the knife and the testicles in a little cup, but found not the cape. also the whole county testifies that [thomas] never before now appealed alan of breaking a bone. and so it is considered that the appeal is null, and that [thomas] be in mercy, and that the other appellees be quit. thomas also appeals emma, alan's wife, for that she in the peace aforesaid after he was placed in her lord's house cut off one of his testicles. he also appeals ralph pilate, for that he cut off the other of his testicles. . the twelve jurors presented in their verdict that austin, rumfar's son, appealed ralph gille of the death of his brother, so that [ralph] fled, and that william, rumfar's son, appealed benet carter of the same death, and ranulf, ralph's son, appealed hugh of hyckham of the same death and baldwin of elsham and ralph hoth and colegrim as accessories. and the coroners by their rolls testify this also. but the county records otherwise, namely, that the said ralph gille, benet, hugh, baldwin, ralph [hoth] and gocegrim were all appealed by ranulf, ralph's son, and by no one else, so that four of them, to wit, ralph gille, hugh, benet and colegrim, were outlawed at the suit of the said ranulf, and that the said persons were not appealed by anyone other than the said ranulf. and for that the county could not [be heard to] contradict the coroners and the said jurors who have said their say upon oath, it is considered etc. thereupon the county forestalled the judgment and before judgment was pronounced made fine with pounds [ , s.][to be collected throughout the county], franchises excepted. . hereward, william's son, appeals walter, hugh's son, for that he in the king's peace assaulted him and wounded him in the arm with an iron fork and gave him another wound in the head; and this he offers to prove by his body as the court shall consider. and walter defends all of it by his body. and it is testified by the coroners and by the whole county that hereward showed his wounds at the proper time and has made sufficient suit. therefore it is considered that there be battle. walter's pledges, peter of gosberton church, and richard hereward's son. hereward's pledges, william his father and the prior of pinchbeck. let them come armed in the quindene of st. swithin at leicester. . william gering appeals william cook of imprisonment, to wit, that he with his force in the king's peace and wickedly, while [gering] was in the service of his lord guy at the forge, took him and led him to freiston to the house of william longchamp, and there kept him in prison so that his lord could not get him replevied; and this he offers to prove as the court shall consider. and william cook comes and defends the felony and imprisonment, but confesses that whereas he had sent his lord's servants to seize the beasts of the said guy on account of a certain amercement which [guy] had incurred in the court of [cook's] lord [longchamp], and which though often summoned he had refused to pay, [gering] came and rescued the beasts that had been seized and wounded a servant of [cook's] lord, who had been sent to seize them, whereupon [cook] arrested [gering] until he should find pledges to stand to right touching both the wounding and the rescue, and when [gering's] lord [guy] came for him, [cook] offered to let him be replevied, but this [guy] refused, and afterwards he repeated the offer before the king's serjeant, but even then it was refused, and then [cook] let [gering] go without taking security. and guy says that he puts himself upon the wapentake, whether the imprisonment took place in manner aforesaid, and whether he [guy] at once showed the matter to the king's serjeant, or no. and william cook does the same. and the wapentake says that the alleged [imprisonment] took place in lent, and guy did not show the matter to the wapentake until a fortnight before st. botulph's day. and the county together with the coroners says that they never heard the suit in their court. therefore it is considered that the appeal is null, and guy is in mercy. and let william and those who are appealed as accessories go quit. . the jurors say that andrew, sureman's son, appealed peter, leofwin's son, thomas squire and william oildene of robbery. and he does not prosecute. so he and stephen despine and baldwin long are in mercy, and the appellees go without day. afterwards comes andrew and says that [the appellees] imprisoned him by the order of william malesoures in the said william's house, so that he sent to the sheriff that the sheriff might deliver him, whereupon the sheriff sent his serjeant and others thither, who on coming there found him imprisoned and delivered him and he produces witnesses, to wit, nicholas portehors and hugh, thurkill's son, who testify that they found him imprisoned, and he vouches the sheriff to warrant this. and the sheriff, on being questioned, says that in truth he sent thither four lawful men with the serjeant on a complaint made by nicholas portehors on andrew's behalf. and those who were sent thither by the sheriff testify that they found him at liberty and disporting himself in william's house. therefore it is considered that the appeal is null [and andrew is in mercy] for his false complaint and nicholas portehors and hugh, thurkill's son, are in mercy for false testimony. andrew and hugh are to be in custody until they have found pledges [for their amercement]. . the jurors say that geoffrey cardun has levied new customs other than he ought and other than have been usual, to wit, in taking from every cart crossing his land at winwick with eels, one stick of eels, and from a cart with greenfish, one greenfish, and from a cart with salmon, half a salmon, and from a cart with herrings, five herrings, whereas he ought to take no custom for anything save for salt crossing his land, to wit, for a cart-load, one bole of salt, and in that case the salter ought to have a loaf in return for the salt, and also if the salter's cart breaks down, the salter's horses ought to have pasture on geoffrey's land without challenge while he repairs his cart. and geoffrey comes and confesses that he takes the said customs, and ought to take them, for he and his ancestors have taken them from the conquest of england, and he puts himself on the grand assize of our lord the king, and craves that a recognition be made whether he ought to take those customs or no. and afterwards he offers the king twenty shillings that this action may be put before sir geoffrey fitzpeter [the justiciar]. pledge for the twenty shillings, richard of hinton. . the jurors say that hugh, son of walter priest, was outlawed for the death of roger rombald at the suit of robert rombald, and afterwards returned under the [protection of the] king's writ, and afterwards was outlawed for the same death on the appeal of geoffrey, thurstan's son. the county therefore is asked by what warrant they outlawed the same man twice for the same death, and says that of a truth in king richard's time the said hugh was outlawed at the suit of one lucy, sister of the said roger, so that for a long time afterwards he hid himself; and at length he came into the county [court] and produced letters of sir geoffrey fitzpeter in the form following: "g. fitzpeter etc. to the sheriff of northamptonshire, greeting, know thou that the king hath pardoned to hugh, son of the priest of grafton, his flight and the outlawry adjudged to him for the death of a certain slain man, and hath signified to us by his letters that we be aiding to the said hugh in re-establishing the peace between him and the kinsfolk of the slain; wherefore we command thee that thou be aiding to the said hugh in making the peace aforesaid, and do us to wit by thy letters under seal what thou hast done in this matter, since we are bound to signify the same to the king. in witness etc. by the king's writ from beyond seas." and the said letters being read in full county [court] the county told the said hugh that he must find pledges that he would be in the king's peace, and he went away to find pledges, and afterwards did not appear. but the kinsfolk of the slain, having heard that hugh had returned after his outlawry, came to the next county [court] and robert rombald produced geoffrey, thurstan's son, who said that if he saw the said hugh he would sue against him the death of the said roger, who was [his kinsman]. and the county showed him how hugh had brought the justiciar's letters pardoning him the flight and outlawry, and that he was to find pledges to stand to the king's peace, but had not returned. whereupon the king's serjeant was ordered to seek hugh and bring him to a later county [court]. and at a later county [court] geoffrey offered himself against hugh, and hugh did not appear; whereupon the king's serjeant being questioned said that he had not found him, and the county advised [geoffrey] to come to another county [court], because if in the meantime hugh could be found, he would be brought to the county [court]. then at the third county [court] the said geoffrey offered himself, and it was testified by the serjeant that hugh had not yet been found, wherefore the county said that as hugh would not appear to the king's peace, he must bear the wolf's head as he had done before. to judgment against the coroners and the twelve jurors. . robert of herthale, arrested for having in self-defense slain roger, swein's son, who had slain five men in a fit of madness, is committed to the sheriff that he may be in custody as before, for the king must be consulted about this matter. the chattels of him who killed the five men were worth two shillings, for which richard [the sheriff must account]. . sibil, engelard's daughter, appeals ralph of sandford, for that he in the king's peace and wickedly and in breach of the peace given to her in the county [court] by the sheriff, came to the house of her lord [or husband] and broke her chests and carried off the chattels, and so treated her that he slew the child that was living in her womb. afterwards she came and said that they had made a compromise and she withdrew herself, for they have agreed that ralph shall satisfy her for the loss of the chattels upon the view and by the appraisement of lawful men; and ralph has assented to this. . william pipin slew william [or john] guldeneman and fled. he had no chattels. let him be exacted. and hugh fuller was taken for this death and put in gaol because the said john [or william] was slain in his house. and hugh gives to the king his chattels which were taken with him, that he may have an inquest [to find] whether he be guilty thereof or no. the jurors say that he is not guilty, and so let him go quit thereof. and william picot is in mercy for having sold hugh's chattels before he was convicted of the death, and for having sold them at an undervalue, for he sold them, as he says, for three shillings, and the jurors say that they were worth seventeen shillings, for which william picot and those who were his fellows ought to account. and william says that the chattels were sold by the advice of his fellows, and his fellows deny this. . robert white slew walter of hugeford and fled. the jurors say that he was outlawed for the death, and the county and the coroners say that he was not outlawed, because no one sued against him. and because the jurors cannot [be heard to] contradict the county and the coroners, therefore they are in mercy, and let robert be exacted. his chattels were [worth] fifteen shillings, for which r. of ambresleigh, the sheriff, must account. . elyas of lilleshall fled to church for the death of a woman slain at lilleshall. he had no chattels. he confessed the death and abjured the realm. alice crithecreche and eva of lilleshall and aldith and mabel, geoffrey and robert of lilleshall, and peter of hopton were taken for the death of the said woman slain at lilleshall. and alice, at once after the death, fled to the county of stafford with some of the chattels of the slain, so it is said, and was taken in that county and brought back into shropshire and there, as the king's serjeant and many knights and lawful men of the county testify, in their presence she said, that at night she heard a tumult in the house of the slain; whereupon she came to the door and looked in, and saw through the middle of the doorway four men in the house, and they came out and caught her, and threatened to kill her unless she would conceal them; and so they gave her the pelf [booty] that she had. and when she came before the [itinerant] justices she denied all this. therefore she has deserved death, but by way of dispensation [the sentence is mitigated, so] let her eyes be torn out. the others are not suspected, therefore let them be under pledges. . william, john's son, appeals walter, son of ralph hose, for that when [william's] lord guy of shawbury and [william] had come from attending the pleas of our lord the king in the county court of shropshire, there came five men in the forest of haughmond and there in the king's peace and wickedly assaulted his lord guy, and so that [walter], who was the fourth among those five, wounded guy and was accessory with the others in force as aid so that guy his lord was killed, and after having wounded his lord he [walter] came to william and held him so that he could not aid his lord; and this he offers to deraign [determine by personal combat] against him as the court shall consider. and walter comes and defends all of it word by word as the court etc. it is considered that there be battle [combat] between them. the battle [combat] is waged. day is given them, at oxford on the morrow of the octave of all saints, and then let them come armed. and ralph [walter's father] gives the king a half-mark that he may have the custody of his son, [for which sum] the pledges are john of knighton and reiner of acton, and he is committed to the custody of ralph hose, reiner of acton, john of knighton, reginald of leigh, adam of mcuklestone, william of bromley, stephen of ackleton, eudo of mark. . robert, son of robert of ferrers, appeals ranulf of tattesworth, for that he came into robert's garden and wickedly and in the king's peace assaulted robert's man roger, and beat and wounded him so that his life was despaired of, and robbed him [roger?] of a cloak, a sword, a bow and arrows: and the said roger offers to prove this by his body as the court shall consider. and ranulf comes and defends the whole of it, word by word, and offers the king one mark of silver that he may have an inquest of lawful knights [to say] whether he be guilty thereof or no. also he says that roger has never until now appealed him of this, and prays that this be allowed in his favor. [ranulf's] offering is accepted. the jurors say that in truth there was some quarrel between robert's gardener, osmund, and some foot-boys, but ranulf was not there, and they do not suspect him of any robbery or any tort done to robert or to osmund. also the county records that the knights who on robert's complaint were sent to view osmund's wounds found him unwounded and found no one else complaining, and that robert in his plaint spoke of osmund his gardener and never of roger, and that roger never came to the county [court] to make this appeal. therefore it is considered that ranulf be quit, and robert and roger in mercy. pledge for ranulf's mark, philip of draycot. pledges for the amercement, henry of hungerhill, and richard meverell. pledge for roger, the said robert. . one l. is suspected by the jurors of being present when reinild of hemchurch was slain, and of having aided and counseled her death. and she defends. therefore let her purge herself by the ordeal of iron; but as she is ill, the ordeal is respited until her recovery. . andrew of burwarton is suspected by the jurors of the death of one hervey, for that he concealed himself because of that death. therefore let him purge himself by ordeal of water. . godith, formerly wife of walter palmer, appeals richard of stonall, for that he in the king's peace wickedly and by night with his force came to her house and bound her and her husband, and afterwards slew the said walter her husband; and this she offers to prove against him as wife of the slain as the court shall consider. and he defends all of it. and the jurors and the whole neighborhood suspect him of that death. and so it is considered that he purge himself by ordeal of iron for he has elected to bear the iron. . the jurors of oflow hundred say that the bailiffs of tamworth have unjustly taken toll from the knights of staffordshire, to wit, for their oxen and other beasts. and the men of lichfield complain that likewise they have taken toll from them, more especially in staffordshire. and the bailiffs deny that they take anything from the knights in staffordshire. and for that they cannot [be heard to] contradict the jurors, the bailiffs are in mercy. as to the men of lichfield, [the tamworth bailiffs] say that they ought to have, and in king henry's time had, toll of them, more especially of the merchants, as well in staffordshire as in warwickshire. and the burgesses of lichfield offer the king a half-mark for an inquest by the county. and the county records that in king henry's time the men of lichfield did not pay toll in staffordshire. therefore the bailiffs are in mercy. - - - chapter - - - - the times - - baron landholders' semi-fortified stone manor houses were improved and extended. many had been licensed to be embattled or crenellated [wall indented at top with shooting spaces]. they were usually quadrangular around a central courtyard. the central and largest room was the hall, where people ate and slept. if the hall was on the first floor, the fire might be at a hearth in the middle of the floor. sometimes the lord had his own chamber, with a sleeping loft above it. having a second floor necessitated a fireplace in the wall so the smoke could go up two floors to the roof. other rooms each had a fireplace. often the hall was on the second floor and took up two stories. there was a fireplace on one wall of the bottom story. there were small windows around the top story and on the inside of the courtyard. windows of large houses were of opaque glass supplied by a glass-making craft. the glass was thick, uneven, distorted, and greenish in color. the walls were plastered. the floor was wood with some carpets. roofs were timbered with horizontal beams. many roofs had tiles supplied by the tile craft, which baked the tiles in kilns or over an open fire. because of the hazard of fire, the kitchen was often a separate building, with a covered way connecting it to the hall. it had one or two open fires in fireplaces, and ovens. sometimes there was a separate room for a dairy. furniture included heavy wood armchairs for the lord and lady, stools, benches, trestle tables, chests, and cupboards. outside was an enclosed garden with cabbages, peas, beans, beetroots, onions, garlic, leeks, lettuce, watercress, hops, herbs, nut trees for oil, some flowers, and a fish pond and well. bees were kept for their honey. nobles, doctors, and attorneys wore tunics to the ankle and an over-tunic almost as long, which was lined with fur and had long sleeves. a hood was attached to it. a man's hair was short and curled, with bangs on the forehead. the tunic of merchants and middle class men reached to the calf. the laborer wore a tunic that reached to the knee, cloth stockings, and shoes of heavy felt, cloth, or perhaps leather. ladies wore a full-length tunic with moderate fullness in the skirt, and a low belt, and tight sleeves. a lady's hair was concealed by a round hat tied on the top of her head. over her tunic, she wore a cloak. monks and nuns wore long black robes with hoods. the barons now managed and developed their estates to be as productive as possible, often using the successful management techniques of church estates. they kept records of their fields, tenants, and services owed by each tenant, and duties of the manor officers, such as supervision of the ploughing and harrowing. annually, the manor's profit or loss for the year was calculated. most manors were self-supporting except that iron for tools and horseshoes and salt for curing usually had to be obtained elsewhere. wine, tar, canvas and millstones were imports from other countries and bought at fairs, as was fish, furs, spices, and silks. sheep were kept in such large numbers that they were susceptible to a new disease "scab". every great household was bound to give alms. as feudalism became less military and less rough, daughters were permitted to inherit fiefs. it became customary to divide the property of a deceased man without a son equally among his daughters. lords were receiving homage from all the daughters and thereby acquiring marriage rights over all of them. also, if a son predeceased his father but left a child, that child would succeed to the father's land in the same way that the deceased would have. manors averaged about ten miles distance between each other, the land in between being unused and called "wasteland". statutes after a period of civil war proscribing the retaking of land discouraged the enclosure of waste land. some villeins bought out their servitude by paying a substitute to do his service or paying his lord a firm (from hence, the words farm and farmer) sum to hire an agricultural laborer in his place. this made it possible for a farm laborer to till one continuous piece of land instead of scattered strips. looms were now mounted with two bars. women did embroidery. the clothing of most people was made at home, even sandals. the village tanner and bootmaker supplied long pieces of soft leather for more protection than sandals. tanning mills replaced some hand labor. the professional hunter of wolves, lynx, or otters supplied head coverings. every village had a smith and possibly a carpenter for construction of ploughs and carts. the smith obtained coal from coal fields for heating the metal he worked. horse harnesses were home-made from hair and hemp. there were water mills and/or wind mills for grinding grain, for malt, and/or for fulling cloth. the position of the sails of the wind mills was changed by manual labor when the direction of the wind changed. most men wore a knife because of the prevalence of murder and robbery. it was an every day event for a murderer to flee to sanctuary in a church, which would then be surrounded by his pursuers while the coroner was summoned. usually, the fugitive would confess, pay compensation, and agree to leave the nation permanently. it had been long customary for the groom to endow his bride in public at the church door. this was to keep her and her children if he died first. if dower was not specified, it was understood to be one-third of all lands and tenements. from , priests taught that betrothal and consummation constituted irrevocable marriage. county courts were the center of decision-making regarding judicial, fiscal, military, and general administrative matters. the writs for the conservation of the peace, directing the taking of the oath, the pursuit of malefactors, and the observance of watch and ward, were proclaimed in full county court; attachments were made in obedience to them in the county court. the county offices were: sheriff, coroner, escheator, and constable or bailiff. there were sheriffs for counties. the sheriff was usually a substantial landholder and a knight who had been prominent in the local court. he usually had a castle in which he kept persons he arrested. he no longer bought his office and collected certain rents for himself, but was a salaried political appointee of the king. he employed a deputy or undersheriff, who was an attorney, and clerks. if there was civil commotion or contempt of royal authority, the sheriff had power to raise a posse of armed men to restore order [posse comitatus: power of the county]. the coroner watched the interests of the crown and had duties in sudden deaths, treasure trove, and shipwreck cases. there were about five coroners per county and they served for a number of years. they were chosen by the county court. the escheator was appointed annually by the treasurer to administer the crown's rights in feudal land, which until had been the responsibility of the sheriff. he was usually chosen from the local gentry. the constable and bailiff operated at the hundred and parish level to detect crime and keep the peace. they assisted sheriffs and justices of the peace, organized watches for criminals and vagrants at the village level, and raised the hue and cry along the highway and from village to village in pursuit of offenders who had committed felony or robbery. the constables also kept the royal castles; they recruited, fed, and commanded the castle garrison. county knights served sheriffs, coroners, escheators, and justices on special royal commissions of gaol-delivery. they sat in judgment in the county court at its monthly meetings, attended the two great annual assemblies when the lord, knights and freeholders of the county gathered to meet the itinerant justices who came escorted by the sheriff and weapon bearers. they served on the committees which reviewed the presentments of the hundreds and village, and carried the record of the county court to westminster when summoned there by the kings' justices. they served on the grand assize. as elected representatives of their fellow knights of the county, they assessed any taxes due from each hundred. election might be by nomination by the sheriff from a fixed list, by choice, or in rotation. they investigated and reported on local abuses and grievances. the king's justices and council often called on them to answer questions put to them on oath. in the villages, humbler freeholders and sokemen were elected to assess the village taxes. six villeins answered for the village's offenses before the royal itinerant justice. reading and writing in the english language was taught. the use of english ceased to be a mark of vulgarity. in the first governmental document was issued in english as well as in latin and french. latin started falling into disuse. boys of noblemen were taught reading, writing, latin, a musical instrument, athletics, riding, and gentlemanly conduct. girls were taught reading, writing, music, dancing, and perhaps household nursing and first aid, spinning, embroidery, and gardening. girls of high social position were also taught riding and hawking. grammar schools taught, in latin, grammar, dialectic (ascertaining word meaning by looking at its origin, its sound (e.g. soft or harsh), its power (e.g. robust and strong sound), its inflection, and its order; and avoiding obscurity and ambiguity in statements), and rhetoric [art of public speaking, oratory, and debate]. the teacher possessed the only complete copy of the latin text, and most of the school work was done orally. though books were few and precious, the students read several latin works. girls and boys of high social position usually had private teachers for grammar school, while boys of lower classes were sponsored at grammar schools such as those at oxford. discipline was maintained by the birch or rod. there was no examination for admission as an undergraduate to oxford, but a knowledge of latin with some skill in speaking latin was a necessary background. the students came from all backgrounds. some had their expenses paid by their parents, while others had the patronage of a churchman, a religious house, or a wealthy layman. they studied the "liberal arts", which derived its name from "liber" or free, because they were for the free men of rome rather than for the economic purposes of those who had to work. the works of greek authors such as aristotle were now available; the european monk thomas aquinas had edited aristotle's works to reconcile them to church doctrine. he opined that man's intellectual use of reason did not conflict with the religious belief that revelation came only from god, because reason was given to man by god. he shared aristotle's belief that the earth was a sphere, and that the celestial bodies moved around it in perfect circles. latin learning had already been absorbed without detriment to the church. a student at oxford would become a master after graduating from a seven year course of study of the seven liberal arts: [grammar, rhetoric (the source of law), aristotelian logic (which differentiates the true from the false), arithmetic, including fractions and ratios, (the foundation of order), geometry, including methods of finding the length of lines, the area of surfaces, and the volume of solids, (the science of measurement), astronomy (the most noble of the sciences because it is connected with divinity and theology), music and also aristotle's philosophy of physics, metaphysics, and ethics; and then lecturing and leading disputations for two years. he also had to write a thesis on some chosen subject and defend it against the faculty. a master's degree gave one the right to teach. further study for four years led to a doctorate in one of the professions: theology and canon or civil law. there were about , students in oxford. they drank, played dice, quarreled a lot and begged at street corners. there were mob fights between students from the north and students from the south and between students and townsmen. but when the mayor of oxford hanged two students accused of being involved in the killing of a townswoman, many masters and students left for cambridge. in , a charter created the office of chancellor of the university at oxford. he was responsible for law and order and, through his court, could fine, imprison, and excommunicate offenders and expel undesirables such as prostitutes from the town. he had authority over all crimes involving scholars, except murder and mayhem. the chancellor summoned and presided over meetings of the masters and came to be elected by indirect vote by the masters who had schools, usually no more than a room or hall with a central hearth which was hired for lectures. students paid for meals there. corners of the room were often partitioned off for private study. at night, some students slept on the straw on the floor. six hours of sleep were considered sufficient. in , the king ordered that every student must have his name on the roll of a master and the masters had to keep a list of those attending his lectures. in the friars established their chief school at oxford. they were bound by oaths of poverty, obedience, and chastity, but were not confined within the walls of a monastery. they walked barefoot from place to lace preaching. they begged for their food and lodgings. they replaced monks, who had become self-indulgent, as the most vital spiritual force among the people. the first college was founded in by walter de merton, former chancellor to the king, at oxford. a college had the living arrangements of a hall, with the addition of monastic-type rules. a warden and about scholars lived and ate meals together in the college buildings. merton college's founding documents provided that: "the house shall be called the house of the scholars of merton, and it shall be the residence of the scholars forever. . . there shall be a constant succession of scholars devoted to the study of letters, who shall be bound to employ themselves in the study of arts or philosophy, the canons or theology. let there also be one member of the collegiate body, who shall be a grammarian, and must entirely devote himself to the study of grammar; let him have the care of the students in grammar, and to him also let the more advanced have recourse without a blush, when doubts arise in their faculty. . . there is to be one person in every chamber, where scholars are resident, of more mature age than the others, who is to make his report of their morals and advancement in learning to the warden. . . the scholars who are appointed to the duty of studying in the house are to have a common table, and a dress as nearly alike as possible. . . the members of the college must all be present together, as far as their leisure serves, at the canonical hours and celebration of masses on holy and other days. . . the scholars are to have a reader at meals, and in eating together they are to observe silence, and to listen to what is read. in their chambers, they must abstain from noise and interruption of their fellows; and when they speak they must use the latin language. . . a scrutiny shall be held in the house by the warden and the seniors, and all the scholars there present, three times a year; a diligent enquiry is to be instituted into the life, conduct, morals, and progress in learning, of each and all; and what requires correction then is to be corrected, and excesses are to be visited with condign punishment. . ." educated men (and those of the s through the s), believed that the earth was the center of the universe and that it was surrounded by a giant spherical dome on which the stars were placed. the sun and moon and planets were each on a sphere around the earth that was responsible for their movements. the origin of the word "planet" meant "wanderer" because the motion of the planets were variable in direction and speed. astrology explained how the position of the stars and planets influenced man and other earthly things. for instance, the position of the stars at a person's birth determined his character. the angle and therefore potency of the sun's rays influenced climate, temperament, and changes of mortal life such as disease and revolutions. unusual events such as the proximity of two planets, a comet, an eclipse, a meteor, or a nova were of great significance. a star often was thought to presage the birth of a great man or a hero. there was a propitious time to have a marriage, go on a journey, make war, and take herbal medicine or be bled by leeches, the latter of which was accompanied by religious ceremony. cure was by god, with medical practitioners only relieving suffering. but there were medical interventions such as pressure and binding were applied to bleeding. arrow and sword wounds to the skin or to any protruding intestine were washed with warm water and sewn up with needle and silk thread. ribs were spread apart by a wedge to remove arrow heads. fractured bones were splinted or encased in plaster. dislocations were remedied. hernias were trussed. bladder stones blocking urination were pushed back into the bladder or removed through an artificial opening in the bladder. surgery was performed by butchers, blacksmiths, and barbers. roger bacon, an oxford master, began the science of physics. he read arab writers and studied the radiation of light and heat. he studied angles of reflection in plane, spherical, cylindrical, and conical mirrors, in both their concave and convex aspects. he did experiments in refraction in different media, e.g. air, water, and glass, and knew that the human cornea refracted light and that the human eye lens was doubly convex. he comprehended the magnifying power of convex lenses and conceptualized the combination of lenses which would increase the power of vision by magnification. he realized that rays of light pass so much faster than those of sound or smell that the time is imperceptible to humans. he knew that rays of heat and sound penetrate all matter without our awareness and that opaque bodies offered resistance to passage of light rays. he knew the power of parabolic concave mirrors to cause parallel rays to converge after reflection to a focus and knew that a mirror could be produced that would induce combustion at a fixed distance. these insights made it possible for jewellers and weavers to use lenses to view their work instead of glass globes full of water, which distorted all but the center of the image: "spherical aberration". the lens, whose opposite surfaces were sections of spheres, took the place of the the central parts of the globe over the image. he knew about magnetic poles attracting if different and repelling if the same and the relation of magnets' poles to those of the heavens and earth. he calculated the circumference of the world and the latitude and longitude of terrestrial positions. he foresaw sailing around the world. bacon began the science of chemistry when he took the empirical knowledge as to a few metals and their oxides and some of the principal alkalis, acids, and salts to the abstract level of metals as compound bodies the elements of which might be separated and recomposed and changed among the states of solid, liquid, and gas. when he studied man's physical nature, health, and disease, he opined that the usefulness of a talisman was not to bring about a physical change, but to bring the patient into a frame of mind more conducive to physical healing. he urged that there be experiments in chemistry to develop medicinal drugs. he studied different kinds of plants and the differences between arable land, forest land, pasture land, and garden land. he studied the planetary motions and astronomical tables to forecast future events. he did calculations on days in a month and days in a year which later contributed to the legal definition of a leap year. bacon was an extreme proponent of the inductive method of finding truths, e.g. by categorizing all available facts on a certain subject to ascertain the natural laws governing it. his contribution to the development of science was abstracting the method of experiment from the concrete problem to see its bearing and importance as a universal method of research. he advocated changing education to include studies of the natural world using observation, exact measurement, and experiments. his explanation of a rainbow as a result of natural laws was contrary to theological opinion that a rainbow was placed in the heavens to assure mankind that there was not to be another universal deluge. the making and selling of goods diverged e.g. as the cloth merchant severed from the tailor and the leather merchant severed from the butcher. these craftsmen formed themselves into guilds, which sought charters to require all craftsmen to belong to the guild of their craft, to have legal control of the craft work, and be able to expel any craftsman for disobedience. these guilds were composed of master craftsmen, their journeymen, and apprentices. these guilds determined the wages and working conditions of the craftsmen and petitioned the borough authorities for ordinances restraining trade, for instance by controlling the admission of outsiders to the craft, preventing foreigners from selling in the town except at fairs, limiting purchases of raw materials to suppliers within the town, forbidding night work, restricting the number of apprentices to each master craftsmen, and requiring a minimum number of years for apprenticeships. in return, these guilds assured quality control. in some boroughs, they did work for the town, such as maintaining certain defensive towers or walls of the town near their respective wards. in some boroughs, fines for infractions of these regulations were split between the guild and the government. in some towns, the merchant guilds attempted to directly regulate the craft guilds. crafts fought each other. there was a street battle with much bloodshed between the goldsmiths and the parmenters and between the tailors and the cordwainers in in london. there was also a major fight between the goldsmiths and the tailors in . the parish clerks' company was chartered in . the citizens of london had a common seal for the city. london merchants traveled throughout the nation with goods to sell exempt from tolls. most of the london aldermen were woolmongers, vintners, skinners, and grocers by turns or carried on all these branches of commerce at once. jews were allowed to make loans with interest up to d. a week for s. lent. there are three inns in london. inns typically had narrow facades, large courtyards, lodging and refreshment for the well-off, warehousing and marketing facilities for merchants, and stabling and repairs for wagons. care-giving infirmaries such as "bethlehem hospital" were established in london. one was a lunatic infirmary founded by the sheriff of london. only tiles were used for roofing in london, because wood shingles were fire hazards and fires in london had been frequent. some areas near london are disclaimed by the king to be royal forest land, so all citizens could hunt there and till their land there without interference by the royal foresters. the sheriff's court in london lost its old importance and handled mainly trespass and debt cases, while important cases went to the hustings, which was presided over by the mayor with the sheriffs and aldermen in attendance. from the early s, the mayor's court took on the work which the weekly husting could not manage. this consisted mostly of assault and robbery cases. murder and manslaughter cases were left to the royal courts. london aldermen were elected by the citizens of their respective wards in ward moots, in which was also arranged the watch, protection against fire, and probably also assessment of the taxes within the ward. there was much effort by the commoners to influence the governance of the city. in they forced their way into the town-moot and by this brute show of strength, which threatened riot, they made their own candidate mayor. subsequent elections were tumultuous. the tower of london now had outer walls of fortress buildings surrounded by a wide and deep moat, over which was one stone causeway and wooden drawbridge. within this was an inner curtain wall with twelve towers and an inner moat. the palace within was a principal residence of english monarchs, whose retinue was extensive, including the chief officers of state: lord high steward, lord high chancellor, lord high treasurer, lord great chamberlain, lord high constable, keeper of the seals, and the king's marshall; lesser officials such as the chamberlain of the candles, keeper of the tents, master steward of the larder, usher of the spithouse, marshall of the trumpets, keeper of the books, keeper of the dishes and of the cups, and steward of the buttery; and numbers of cat hunters, wolf catchers, clerks and limners, carters, water carriers, washerwomen and laundresses, chaplains, lawyers, archers, huntsmen, hornblowers, barbers, minstrels, guards and servitors, and bakers and confectioners. the fortress also contained a garrison, armory, chapels, stables, forge, wardrobe for a tailor's workroom and secure storage of valuable clothes, silver plate, and expensive imports such as sugar, rice, almonds, dried fruits, cinnamon, saffron, ginger, galingale, zedoary, pepper, nutmeg, and mace. there was a kitchen with courtyard for cattle, poultry, and pigs; dairy, pigeon loft, brewery, beehives, fruit stores, gardens for vegetables and herbs; and sheds for gardeners. there was also a mint, which minted a gold penny worth s. of silver, a jewel house, and a menagerie (with leopards, lions, a bear, and an elephant). the fortress also served as a state prison. most prisoners there had opposed the royal will; they were usually permitted to live in quarters in the same style they were used to, including servants and visits by family and friends. but occasionally prisoners were confined in irons in dark and damp dungeons. the king's family, immediate circle, and most distinguished guests dined elegantly in the great hall at mid-day. they would first wash their hands in hot water poured by servants over bowls. the table had silver plate, silver spoons, and cups of horn, crystal, maple wood, or silver laid on a white cloth. each guest brought his own knife in a leather sheath attached to a belt or girdle. a procession of servitors brought the many dishes to which the gentlemen helped the ladies and the young their seniors by placing the food in scooped-out half loaves of bread that were afterwards distributed to the poor. a wine cup was handed around the table. in the winter after dinner, there would often be games of chess or dice or songs of minstrels, and sometimes dancing, juggler or acrobat displays, or story-telling by a minstrel. in the summer there were outdoor games and tournaments. hunting with hounds or hawks was popular with both ladies and gentlemen. the king would go to bed on a feather mattress with fur coverlet that was surrounded by linen hangings. his grooms would sleep on trundle beds in the same room. the queen likewise shared her bedchamber with several of her ladies sleeping on trundle beds. breakfast was comprised of a piece of bread and a cup of wine taken after the daily morning mass in one of the chapels. sometimes a round and deep tub was brought into the bedchamber by servants who poured hot water onto the bather in the tub. baths were often taken in the times of henry iii, who believed in cleanliness and sanitation. henry iii was also noted for his luxurious tastes. he had a linen table cloth, goblets of mounted cocoa-nut, a glass cup set in crystal, and silk and velvet mattresses, cushions, and bolster. he had many rooms painted with gold stars, green and red lions, and painted flowers. to his sister on her marriage, he gave goldsmith's work, a chess table, chessmen in an ivory box, silver pans and cooking vessels, robes of cloth of gold, embroidered robes, robes of scarlet, blue, and green fine linen, genoese cloth of gold, two napkins, and thirteen towels. in the king's grant to oxford, the mayor and good men were authorized to take weekly for three years / d. on every cart entering the town loaded with goods, if it was from the county, or d. if it came from outside the county; / d. for every horse load, except for brushwood; / d. on every horse, mare, ox, or cow brought to sell; and / d. for every five sheep, goats, or pigs. english ships had one mast with a square sail. the hulls were made of planks overlapping each other. there was a high fore castle [tower] on the bow, a top castle on the mast, and a high stern castle from which to shoot arrows down on other ships. there were no rowing oars, but steering was still by an oar on the starboard side of the ship. the usual carrying capacity was tuns [big casks of wine each with about gallons]. on the coasts there were lights and beacons. harbors at river mouths were kept from silting up. ships were loaded from piers. the construction of london bridge had just been finished. bricks began to be imported for building. about % of the population lived in towns. churches had stained glass windows. newcastle-on-tyne received these new rights: . and that they shall justly have their lands and tenures and mortgages and debts, whoever owes them to them. . concerning their lands and tenures within the town, right shall be done to them according to the custom of the city winton. . and of all their debts which are lent in newcastle-on-tyne and of mortgages there made, pleas shall be held at newcastle-on-tyne. . none of them shall plead outside the walls of the city of newcastle-on-tyne on any plea, except pleas of tenures outside the city and except the minters and my ministers. . that none of them be distrained by any without the said city for the repayment of any debt to any person for which he is not capital debtor or surety. . that the burgesses shall be quit of toll and lastage [duty on a ship's cargo] and pontage [tax for repairing bridges] and have passage back and forth. . moreover, for the improvement of the city, i have granted them that they shall be quit of year's gift and of scotale [pressure to buy ale at the sheriff's tavern], so that my sheriff of newcastle- on-tyne or any other minister shall not make a scotale. . and whosoever shall seek that city with his merchandise, whether foreigners or others, of whatever place they may be, they may come sojourn and depart in my safe peace, on paying the due customs and debts, and any impediment to these rights is prohibited. . we have granted them also a merchant guild. . and that none of them [in the merchant guild] shall fight by combat. the king no longer lives on his own from income from his own lands, but takes money from the treasury. a tax of a percentage of / th of personal property was levied in for a war, in return for which the king signed the magna carta. it was to be paid by all tenants-in-chief, men of the royal domain, burgesses of the boroughs and cities, clerical tenants-in-chief, and religious houses. the percentage tax came to be used frequently and ranged from about / th to / th. in , this tax was bifurcated into one percentage amount for the rural districts and a higher one for urban districts, because the burgesses had greater wealth and much of it was hard to uncover because it was in the possession of customers and debtors. it was usually / th for towns and royal domains and / th in the country. this amount of money collected by this tax increased with the wealth of the country. the king takes custody of lands of lunatics and idiots, as well as escheats of land falling by descent to aliens. henry iii took s. from his tenants-in-chief for the marriage of his daughter, and two pounds for the knighting of his son. by , the king was hiring soldiers at s. per day for knights, and d. a day for less heavily armed soldiers, and d. a day for cross-bowmen. some castle-guard was done by watchmen hired at d. a day. ships were impressed when needed. sometimes private ships were authorized to ravage the french coasts and take what spoil they could. while king henry iii was underage, there was much controversy as to who should be his ministers of state, such as justiciar, chancellor, and treasurer. this led to the concept that they should not be chosen by the king alone. after he came of age, elected men from the baronage fought to have meetings and his small council in several conferences called great councils or parliaments (from french "to speak the mind") to discuss the levying of taxes and the solution of difficult legal cases, the implementation of the magna carta, the appointment of the king's ministers and sheriffs, and the receipt and consideration of petitions. the barons paid / th tax on their moveable property to have three barons of their choice added to the council. statutes were enacted. landholders were given the duty of electing four of their members in every county to ensure that the sheriff observed the law and to report his misdemeanors to the justiciar. they were also given the duty of electing four men from the county from whom the exchequer was to choose the sheriff of the year. earl montfort and certain barons forced king henry iii to summon a great council or parliament in in which the common people were represented officially by two knights from every county, two burgesses from every borough, and two representatives from each major port. so the king's permanent small council became a separate body from parliament and its members took a specific councilor's oath in to give faithful counsel, to keep secrecy, to prevent alienation of ancient demesne, to procure justice for the rich and poor, to allow justice to be done on themselves and their friends, to abstain from gifts and misuse of patronage and influence, and to be faithful to the queen and to the heir. - the law - the barons forced successive kings to sign the magna carta until it became the law of the land. it became the first statute of the official statute book. its provisions express the principle that a king is bound by the law and is not above it. however, there is no redress if the king breaches the law. the magna carta was issued by john in . a revised version was issued by henry iii in with the forest clauses separated out into a forest charter. the two versions are replicated together, with the formatting of each indicated in the titles below. {magna carta - } magna carta - & magna carta - {john, by the grace of god, king of england, lord of ireland, duke of normandy and aquitaine, and count of anjou: to the archbishops, bishops, abbots, earls, barons, justiciaries, foresters, sheriffs, reeves, ministers, and all bailiffs and others, his faithful subjects, greeting. know ye that in the presence of god, and for the health of our soul, and the souls of our ancestors and heirs, to the honor of god, and the exaltation of holy church, and amendment of our realm, by the advice of our reverend fathers, stephen, archbishop of canterbury, primate of all england, and cardinal of the holy roman church; henry, archbishop of dublin; william of london, peter of winchester, jocelin of bath and glastonbury, hugh of lincoln, walter of worcester, william of coventry, and benedict of rochester, bishops; master pandulph, the pope's subdeacon and familiar; brother aymeric, master of the knights of the temple in england; and the noble persons, william marshall, earl of pembroke; william, earl of salisbury; william, earl of warren; william, earl of arundel; alan de galloway, constable of scotland; warin fitz-gerald, peter fitz-herbert, hubert de burgh, seneshal of poitou, hugh de neville, matthew fitz-herbert, thomas basset, alan basset, philip daubeny, robert de roppelay, john marshall, john fitz-hugh, and others, our liegemen:} henry by the grace of god, king of england, lord of ireland, duke of normandy and guyan and earl of anjou, to all archbishops, bishops, abbots, priors, earls, barons, sheriffs, provosts, officers and to all bailiffs and other our faithful subjects which shall see this present charter, greeting. know ye that we, unto the honor of almighty god, and for the salvation of the souls of our progenitors and successors kings of england, to the advancement of holy church and amendment of our realm, of our mere and free will, have given and granted to all archbishops, bishops, abbots, priors, earls, barons, and to all free men of this our realm, these liberties following, to be kept in our kingdom of england forever. [i. a confirmation of liberties] first, we have granted to god, and by this our present charter confirmed, for us and our heirs forever, that the english church shall be free and enjoy her whole rights and her liberties inviolable. {and that we will this so to be observed appears from the fact that we of our own free will, before the outbreak of the dissensions between us and our barons, granted, confirmed, and procured to be confirmed by pope innocent iii the freedom of elections, which is considered most important and necessary to the english church, which charter we will both keep ourself and will it to be kept with good faith by our heirs forever.} we have also granted to all the free men of our realm, for us and our heirs forever, all the liberties underwritten, to have and to hold to them and their heirs of us and our heirs. [ii. the relief of the king's tenant of full age] if any of our earls, barons, or others who hold of us in chief by knight's service dies, and at the time of his death his heir is of full age and owes to us a relief, he shall have his inheritance on payment of [no more than] the old relief; to wit, the heir or heirs of an earl, for an entire earldom, pounds [ , s.]; the heir or heirs of a baron of an entire barony, { pounds} marks [ pounds or s.]; the heir or heirs of an entire knight's fee, s. at the most [about / of a knight's annual income]; and he who owes less shall give less, according to the old custom of fees. [iii. the wardship of an heir within age. the heir a knight] but if the heir of such be under age, his lord shall not have the ward of him, nor of his land, before that he has taken of him homage. if, however, any such heir is under age and in ward, he shall have his inheritance without relief or fine when he comes of age, that is, twenty-one years of age. so that if such an heir not of age is made a knight, yet nevertheless his land shall remain in the keeping of his lord unto the aforesaid term. [iv. no waste shall be made by a guardian in ward's lands] the guardian of the land of any heir thus under age shall take therefrom only reasonable issues, customs, and services, without destruction or waste of men or goods. and if we commit the custody of any such land to the sheriff or any other person answerable to us for the issues of the same land, and he commits destruction or waste, we will take an amends from him and recompense therefore. and the land shall be committed to two lawful and discreet men of that fee, who shall be answerable for the issues of the same land to us or to whomsoever we shall have assigned them. and if we give or sell the custody of any such land to any man, and he commits destruction or waste, he shall lose the custody, which shall be committed to two lawful and discreet men of that fee, who shall, in like manner, be answerable to us as has been aforesaid. [v. guardians shall maintain the inheritance of their wards and of bishopricks, etc.] the guardian, so long as he shall have the custody of the land, shall keep up and maintain the houses, parks, fishponds, pools, mills, and other things pertaining thereto, out of the issues of the same, and shall restore to the heir when he comes of age, all his land stocked with {ploughs and tillage, according as the season may require and the issues of the land can reasonably bear} ploughs and all other things, at the least as he received it. all these things shall be observed in the custodies of vacant archbishopricks, bishopricks, abbeys, priories, churches, and dignities, which appertain to us; except this, that such custody shall not be sold. [vi. heirs shall be married without disparagement] heirs shall be married without loss of station. {and the marriage shall be made known to the heir's nearest of kin before it is agreed.} [vii. a widow shall have her marriage, inheritance, and querentine. the king's widow, etc.] a widow, after the death of her husband, shall immediately and without difficulty have her marriage portion [property given to her by her father] and inheritance. she shall not give anything for her marriage portion, dower, or inheritance which she and her husband held on the day of his death, and she may remain in her husband's house for forty days after his death, within which time her dower shall be assigned to her. if that house is a castle and she leaves the castle, then a competent house shall forthwith be provided for her, in which she may honestly dwell until her dower is assigned to her as aforesaid; and in the meantime her reasonable estovers of the common [necessaries or supplies such as wood], etc. no widow shall be compelled [by penalty of fine] to marry so long as she has a mind to live without a husband, provided, however, that she gives security that she will not marry without our assent, if she holds of us, or that of the lord of whom she holds, if she holds of another. [viii. how sureties shall be charged to the king] neither we nor our bailiffs shall seize any land or rent for any debt as long as the debtor's goods and chattels suffice to pay the debt and the debtor himself is ready to satisfy therefore. nor shall the debtor's sureties be distrained as long as the debtor is able to pay the debt. if the debtor fails to pay, not having the means to pay, or will not pay although able to pay, then the sureties shall answer the debt. and, if they desire, they shall hold the debtor's lands and rents until they have received satisfaction of that which they had paid for him, unless the debtor can show that he has discharged his obligation to them. {if anyone who has borrowed from the jews any sum of money, great or small, dies before the debt has been paid, the heir shall pay no interest on the debt as long as he remains under age, of whomsoever he may hold. if the debt falls into our hands, we will take only the principal sum named in the bond.} {and if any man dies indebted to the jews, his wife shall have her dower and pay nothing of that debt; if the deceased leaves children under age, they shall have necessaries provided for them in keeping with the estate of the deceased, and the debt shall be paid out of the residue, saving the service due to the deceased's feudal lords. so shall it be done with regard to debts owed persons other than jews.} [ix. the liberties of london and other cities and towns confirmed] the city of london shall have all her old liberties and free customs, both by land and water. moreover, we will and grant that all other cities, boroughs, towns, and ports shall have all their liberties and free customs. {no scutage or aid shall be imposed in our realm unless by common counsel thereof, except to ransom our person, make our eldest son a knight, and once to marry our eldest daughter, and for these only a reasonable aid shall be levied. so shall it be with regard to aids from the city of london.} {to obtain the common counsel of the realm concerning the assessment of aids (other than in the three aforesaid cases) or of scutage, we will have the archbishops, bishops, abbots, earls, and great barons individually summoned by our letters; we will also have our sheriffs and bailiffs summon generally all those who hold lands directly of us, to meet on a fixed day, but with at least forty days' notice, and at a fixed place. in all such letters of summons, we will explain the reason therefor. after summons has thus been made, the business shall proceed on the day appointed, according to the advice of those who are present, even though not all the persons summoned have come.} {we will not in the future grant permission to any man to levy an aid upon his free men, except to ransom his person, make his eldest son a knight, and once to marry his eldest daughter, and on each of these occasions only a reasonable aid shall be levied.} [x. none shall distrain for more service than is due.] no man shall be compelled to perform more service for a knight's fee nor any freehold than is due therefrom. [xi. common pleas shall not follow the king's court] people who have common pleas shall not follow our court traveling about the realm, but shall be heard in some certain place. [xii. where and before whom assizes shall be taken. adjournment for difficulty] {land assizes of novel disseisin, mort d'ancestor and darrein presentment shall be heard only in the county where the property is situated, and in this manner: we or, if we are not in the realm, our chief justiciary, shall send two justiciaries through each county four times a year [to clear and prevent backlog], and they, together with four knights elected out of each county by the people thereof, shall hold the said assizes in the county court, on the day and in the place where that court meets.} assizes of novel disseisin, mort d'ancestor shall be heard only in the county where the property is situated, and in this manner: we, or if we are not in the realm, our chief justiciary, shall send justiciaries through each county once a year, and they together with knights of that county shall hold the said assizes in the county. {if the said assizes cannot be held on the day appointed, so many of the knights and freeholders as were present on that day shall remain as will be sufficient for the administration of justice, according to the amount of business to be done.} and those things that at the coming of our foresaid justiciaries, being sent to take those assizes in the counties, cannot be determined, shall be ended by them in some other place in their circuit; and those things which for difficulty of some articles cannot be determined by them, shall be referred to our justices of the bench and there shall be ended. [xiii. assizes of darrein presentment] assizes of darrein presentment shall always be taken before our justices of the bench and there shall be determined. [xiv. how men of all sorts shall be amerced and by whom] a freeman shall be amerced [made to pay a fine to the king] for a small offence only according to the degree thereof, and for a serious offence according to its magnitude, saving his position and livelihood; and in like manner a merchant, saving his trade and merchandise, and a villein saving his tillage, if they should fall under our mercy. none of these amercements shall be imposed except by the oath of honest men of the neighborhood. earls and barons shall be amerced only by their peers, and only in accordance with the seriousness of the offense. {no amercement shall be imposed upon a cleric's lay tenement, except in the manner of the other persons aforesaid, and without regard to the value of his ecclesiastical benefice.} no man of the church shall be amerced except in accordance with the seriousness of the offence and after his lay tenement, but not after the quantity of his spiritual benefice. [xv. making of bridges and banks] no town or freeman shall be compelled to build bridges over rivers or banks except those bound by old custom and law to do so. [xvi. defending of banks] no banks [land near a river] shall be defended [used by the king alone, e.g. for hunting], from henceforth, but such as were in defence in the time of king henry [ii] our grandfather, by the same places and in the same bounds as in his time. [xvii. holding pleas of the crown] no sheriff, constable, coroners, or other of our bailiffs shall hold pleas of our crown [but only justiciars, to prevent disparity of punishments and corruption]. {all counties, hundreds, wapentakes, and tithings (except our demesne manors) shall remain at the old rents, without any increase.} [xviii. the king's debtor dying, the king shall be first paid] if anyone holding a lay fee of us dies, and our sheriff or our bailiff show our letters patent [public letter from a sovereign or one in authority] of summons for a debt due to us from the deceased, it shall be lawful for such sheriff or bailiff to attach and list the goods and chattels of the deceased found in the lay fee to the value of that debt, by the sight and testimony of lawful men [to prevent taking too much], so that nothing thereof shall be removed therefrom until our whole debt is paid; then the residue shall be given up to the executors to carry out the will of the deceased. if there is no debt due from him to us, all his chattels shall remain the property of the deceased, saving to his wife and children their reasonable shares. {if any freeman dies intestate, his chattels shall be distributed by his nearest kinfolk and friends, under supervision of the church, saving to each creditor the debts owed him by the deceased.} [xix. purveyance for a castle] no constable or other of our bailiffs shall take grain or other chattels of any man without immediate payment, unless the seller voluntarily consents to postponement of payment. this applies if the man is not of the town where the castle is. but if the man is of the same town as where the castle is, the price shall be paid to him within days. [xx. doing of castle-guard] no constable shall compel any knight to give money for keeping of his castle in lieu of castle-guard when the knight is willing to perform it in person or, if reasonable cause prevents him from performing it himself, by some other fit man. further, if we lead or send him into military service, he shall be excused from castle-guard for the time he remains in service by our command. [xxi. taking of horses, carts, and wood] no sheriff or bailiff of ours, or any other man, shall take horses or carts of any freeman for carriage without the owner's consent. he shall pay the old price, that is, for carriage with two horses, d. a day; for three horses, d. a day. no demesne cart of any spiritual person or knight or any lord shall be taken by our bailiffs. neither we nor our bailiffs will take another man's wood for our castles or for other of our necessaries without the owner's consent. [xxii. how long felons' lands shall be held by the king] we will hold the lands of persons convicted of felony for only a year and a day [to remove the chattels and movables], after which they shall be restored to the lords of the fees. [xxiii. in what place weirs shall be removed] all fishweirs [obstructing navigation] shall be entirely removed by the thames and medway rivers, and throughout england, except upon the seacoast. [xxiv. in what case a praecipe in capite is not grantable] the [royal] writ called "praecipe in capite" [for tenements held in chief of the crown] shall not in the future be granted to anyone respecting any freehold if thereby a freeman [who has a mesne lord] may not be tried in his lord's court. [xxv. there shall be but one measure throughout the realm] there shall be one measure of wine throughout our realm, one measure of ale, and one measure of grain, to wit, the london quarter, and one breadth of dyed cloth, russets, and haberjets, to wit, two {ells} yards within the selvages. as with measures so shall it also be with weights. [xxvi. inquisition of life and limb] henceforth nothing shall be given or taken for a writ of inquisition upon life or limb, but it shall be granted freely and not denied. [xxvii. tenure of the king in socage and of another by knight's service. petit serjeanty.] if anyone holds of us by fee farm, socage, or burgage, and also holds land of another by knight's service, we will not by reason of that fee farm, socage, or burgage have the wardship of his heir, or the land which belongs to another man's fee. nor will we have the custody of such fee farm, socage, or burgage unless such fee farm owe knight's service. we will not have the wardship of any man's heir, or the land which he holds of another by knight's service, by reason of any petty serjeanty which he holds of us by service of rendering us knives, arrows, or the like. [xxviii. wages of law shall not be without witness] in the future no [royal] bailiff shall upon his own unsupported accusation put any man to trial or oath without producing credible witnesses to the truth of the accusation. [xxix. none shall be condemned without trial. justice shall not be sold or delayed.] no freeman shall be taken, imprisoned, disseised of his freehold or liberties or free customs, or be outlawed, banished, or in any way ruined, nor will we prosecute or condemn him, except by the lawful judgment of his peers or by the law of the land. to no one will we sell [by bribery], to none will we deny or delay, right or justice. [xxx. merchant strangers coming into this realm shall be well used] all merchants shall have safe conduct to go and come out of and into england, and to stay in and travel through england by land and water, to buy and sell, without evil tolls, in accordance with old and just customs, except, in time of war, such merchants as are of a country at war with us. if any such be found in our realm at the outbreak of war, they shall be detained, without harm to their bodies or goods, until it be known to us or our chief justiciary how our merchants are being treated in the country at war with us. and if our merchants are safe there, then theirs shall be safe with us. {henceforth anyone, saving his allegiance due to us, may leave our realm and return safely and securely by land and water, except for a short period in time of war, for the common benefit of the realm.} [xxxi. tenure of a barony coming into the king's hands by escheat] if anyone dies holding of any escheat, such as the honor of wallingford, nottingham, boulogne, {lancaster,} or other escheats which are in our hands and are baronies, his heir shall not give any relief or do any service to us other than he would owe to the baron, if such barony had been in the baron's hands. and we will hold the escheat in the same manner in which the baron held it. nor shall we have, by occasion of any barony or escheat, any escheat or keeping of any of our men, unless he who held the barony or escheat elsewhere held of us in chief. persons dwelling outside the forest [in the county] need not in the future come before our justiciaries of the forest in answer to a general summons unless they are impleaded or are sureties for any person or persons attached for breach of forest laws. [xxxii. lands shall not be aliened to the prejudice of the lord's service] no freeman from henceforth shall give or sell any more of his land, but so that of the residue of the lands the lord of the fee may have the service due to him which belongs to the fee. {we will appoint as justiciaries, constables, sheriffs, or bailiffs only such men as know the law of the land and will keep it well.} [xxxiii. patrons of abbeys shall have the custody of them when vacant] all barons who had founded abbeys of which they have charters of english kings or old tenure, shall have the custody of the same when vacant, as is their due. all forests which have been created in our time shall forthwith be disafforested. {so shall it be done with regard to river banks which have been enclosed by fences in our time.} {all evil customs concerning forests and warrens [livestock grounds in forests], foresters and warreners, sheriffs and their officers, or riverbanks and their conservators shall be immediately investigated in each county by twelve sworn knights of such county, who are chosen by honest men of that county, and shall within forty days after this inquest be completely and irrevocably abolished, provided always that the matter has first been brought to our knowledge, or that of our justiciars, if we are not in england.} {we will immediately return all hostages and charters delivered to us by englishmen as security for the peace or for the performance of loyal service.} {we will entirely remove from their offices the kinsmen of gerald de athyes, so that henceforth they shall hold no office in england: engelard de cigogne, peter, guy, and andrew de chanceaux, guy de cigogne, geoffrey de martigny and his brothers, philip mark and his brothers, and geoffrey his nephew, and all their followers.} {as soon as peace is restored, we will banish from our realm all foreign knights, crossbowmen, sergeants, and mercenaries, who have come with horses and arms, to the hurt of the realm.} {if anyone has been disseised or deprived by us, without the legal judgment of his peers, of lands, castles, liberties, or rights, we will immediately restore the same, and if any disagreement arises on this, the matter shall be decided by judgment of the twenty- five barons mentioned below in the clause for securing the peace. with regard to all those things, however, of which any man was disseised or deprived, without the legal judgment of his peers, by king henry [ii] our father or our brother king richard, and which remain in our hands or are held by others under our warranty, we shall have respite during the term commonly allowed to the crusaders, excepting those cases in which a plea was begun or inquest made on our order before we took the cross; when, however, we return from our pilgrimage, or if perhaps we do not undertake it, we will at once do full justice in these matters.} {likewise, we shall have the same respite in rendering justice with respect to the disafforestation or retention of those forests which henry [ii] our father or richard our brother afforested, and concerning custodies of lands which are of the fee of another, which we hitherto have held by reason of the fee which some person has held of us by knight's service, and to abbeys founded on fees other than our own, in which the lord of that fee asserts his right. when we return from our pilgrimage, or if we do not undertake it, we will forthwith do full justice to the complainants in these matters.} [xxxiv. in what only case a woman shall have an appeal of death] no one shall be arrested or imprisoned upon a woman's appeal for the death of any person other than her husband [since no woman was expected to personally engage in trial by combat]. [xxxv. at what time shall be kept a county court, sheriff's turn and a leet court (court of criminal jurisdiction excepting felonies)] no county court from henceforth shall be held, but from month to month; and where greater time has been used, there shall be greater. nor shall any sheriff, or his bailiff, keep his turn in the hundred but twice in the year; and no where but in due place and accustomed time, that is, once after easter, and again after the feast of saint michael. and the view of frankpledge [the right of assembling the whole male population over years except clergy, earls, barons, knights, and the infirm, at the leet or soke court for the capital frankpledges to give account of the peace kept by individuals in their respective tithings] shall be likewise at the feast of saint michael without occasion, so that every man may have his liberties which he had, or used to have, in the time of king henry [ii] our grandfather, or which he has since purchased. the view of frankpledge shall be so done, that our peace may be kept; and that the tything be wholly kept as it has been accustomed; and that the sheriff seek no occasions, and that he be content with so much as the sheriff was wont to have for his view-making in the time of king henry our grandfather. [xxxvi. no land shall be given in mortmain] it shall not be lawful from henceforth to any to give his land to any religious house, and to take the same land again to hold of the same house [thereby extinguishing the feudal rights of the temporal lord]. nor shall it be lawful to any house of religion to take the lands of any, and to lease the same to him of whom he received it. if any from henceforth give his lands to any religious house, and thereupon be convicted, the gift shall be utterly void, and the land shall accrue to the lord of the fee. {all fines unjustly and unlawfully given to us, and all amercements levied unjustly and against the law of the land, shall be entirely remitted or the matter decided by judgment of the twenty-five barons mentioned below in the clause for securing the peace, or the majority of them, together with the aforesaid stephen, archbishop of canterbury, if he himself can be present, and any others whom he may wish to bring with him for the purpose; if he cannot be present, the business shall nevertheless proceed without him. if any one or more of the said twenty-five barons has an interest in a suit of this kind, he or they shall step down for this particular judgment, and be replaced by another or others, elected and sworn by the rest of the said barons, for this occasion only.} {if we have disseised or deprived the welsh of lands, liberties, or other things, without legal judgment of their peers, in england or wales, they shall immediately be restored to them, and if a disagreement arises thereon, the question shall be determined in the marches by judgment of their peers according to the law of england as to english tenements, the law of wales as to welsh tenements, the law of the marches as to tenements in the marches. the same shall the welsh do to us and ours.} {but with regard to all those things of which any welshman was disseised or deprived, without legal judgment of his peers, by king henry [ii] our father or our brother king richard, and which we hold in our hands or others hold under our warranty, we shall have respite during the term commonly allowed to the crusaders, except as to those matters whereon a suit had arisen or an inquisition had been taken by our command prior to our taking the cross. immediately after our return from our pilgrimage, or if by chance we do not undertake it, we will do full justice according to the laws of the welsh and the aforesaid regions.} {we will immediately return the son of llywelyn, all the welsh hostages, and the charters which were delivered to us as security for the peace.} {with regard to the return of the sisters and hostages of alexander, king of the scots, and of his liberties and rights, we will do the same as we would with regard to our other barons of england, unless it appears by the charters which we hold of william his father, late king of the scots, that it ought to be otherwise; this shall be determined by judgment of his peers in our court.} [xxxvii. subsidy in respect of this charter, and the charter of the forest, granted to the king.] escuage [shield military service] from henceforth shall be taken as it was wont to be in the time of king henry [ii] our grandfather; reserving to all archbishops, bishops, abbots, priors, templers, hospitallers, earls, barons, and all persons as well spiritual as temporal; all their free liberties and free customs, which they have had in time passed. and all these customs and liberties aforesaid, which we have granted to be held within this our realm, as much as pertains to us and our heirs, we shall observe. {all the customs and liberties aforesaid, which we have granted to be enjoyed, as far as it pertains to us towards our people throughout our realm, let all our subjects, whether clerics or laymen, observe, as far as it pertains toward their dependents.} and all men of this our realm, as well spiritual as temporal (as much as in them is) shall observe the same against all persons in like wise. and for this our gift and grant of these liberties, and of other constrained in our charter of liberties of our forest, the archbishops, bishops, abbots, priors, earls, barons, knights, freeholders, and our other subjects, have given unto us the fifteenth part of all their moveables. and we have granted unto them on the other part, that neither we, nor our heirs, shall procure or do any thing whereby the liberties in this charter contained shall be infringed or broken. and if any thing be procured by any person contrary to the premises, it shall be had of no force nor effect. [enforcement] {whereas we, for the honor of god and the reform of our realm, and in order the better to allay the discord arisen between us and our barons, have granted all these things aforesaid. we, willing that they be forever enjoyed wholly and in lasting strength, do give and grant to our subjects the following security, to wit, that the barons shall elect any twenty-five barons of the realm they wish, who shall, with their utmost power, keep, hold, and cause to be kept the peace and liberties which we have granted unto them and by this our present charter have confirmed, so that if we, our justiciary, bailiffs, or any of our ministers offends in any respect against any man, or transgresses any of these articles of peace or security, and the offense is brought before four of the said twenty-five barons, those four barons shall come before us, or our chief justiciary if we are out of the realm, declaring the offense, and shall demand speedy amends for the same. if we or, in case of our being out of the realm, our chief justiciary fails to afford redress within forty days from the time the case was brought before us or, in the event of our having been out of the realm, our chief justiciary, the aforesaid four barons shall refer the matter to the rest of the twenty-five barons, who, together with the commonalty of the whole country, shall distrain and distress us to the utmost of their power, to wit, by capture of our castles, lands, and possessions and by all other possible means, until compensation is made according to their decision, saving our person and that of our queen and children; as soon as redress has been had, they shall return to their former allegiance. anyone in the realm may take oath that, for the accomplishment of all the aforesaid matters, he will obey the orders of the said twenty-five barons and distress us to the utmost of his power; and we give public and free leave to everyone wishing to take oath to do so, and to none will we deny the same. moreover, all such of our subjects who do not of their own free will and accord agree to swear to the said twenty-five barons, to distrain and distress us together with them, we will compel to do so by our command in the aforesaid manner. if any one of the twenty-five barons dies or leaves the country or is in any way hindered from executing the said office, the rest of the said twenty-five barons shall choose another in his stead, at their discretion, who shall be sworn in like manner as the others. in all cases which are referred to the said twenty-five barons to execute, and in which a difference arises among them, supposing them all to be present, or in which not all who have been summoned are willing or able to appear, the verdict of the majority shall be considered as firm and binding as if the whole number had been of one mind. the aforesaid twenty-five shall swear to keep faithfully all the aforesaid articles and, to the best of their power, to cause them to be kept by others. we will not procure, either by ourself or any other, anything from any man whereby any of these concessions or liberties may be revoked or abated. if any such procurement is made, let it be null and void; it shall never be made use of either by us or by any other.} [amnesty] {we have also fully forgiven and pardoned all ill-will, wrath, and malice which has arisen between us and our subjects, both clergy and laymen, during the disputes, to and with all men. moreover, we have fully forgiven and, as far as it pertains to us, wholly pardoned to and with all, clergy and laymen, all offences made in consequence of the said disputes from easter in the sixteenth year of our reign until the restoration of peace. over and above this, we have caused letters patent to be made for stephen, archbishop of canterbury, henry, archbishop of dublin, the above-mentioned bishops, and master pandulph, for the aforesaid security and concessions.} {wherefore we will that, and firmly command that, the english church shall be free and all men in our realm shall have and hold all the aforesaid liberties, rights, and concessions, well and peaceably, freely, quietly, fully, and wholly, to them and their heirs, of us and our heirs, in all things and places forever, as is aforesaid. it is moreover sworn, as will on our part as on the part of the barons, that all these matters aforesaid shall be kept in good faith and without deceit. witness the above-named and many others. given by our hand in the meadow which is called runnymede, between windsor and staines, on the fifteenth day of june in the seventeenth year of our reign.} these being witnesses: lord s. archbishop of canterbury, e. bishop of london, f. bishop of bathe, g. of wincester, h. of lincoln, r. of salisbury, w. of rochester, x. of worcester, f. of ely, h. of hereford, r. of chichester, w. of exeter, bishops; the abbot of st. edmonds, the abbot of st. albans, the abbot of bello, the abbot of st. augustines in canterbury, the abbot of evesham, the abbot of westminster, the abbot of bourgh st. peter, the abbot of reding, the abbot of abindon, the abbot of malmbury, the abbot of winchcomb, the abbot of hyde, the abbot of certesey, the abbot of sherburn, the abbot of cerne, the abbot of abborebir, the abbot of middleton, the abbot of seleby, the abbot of cirencester, h. de burgh justice, h. earl of chester and lincoln, w. earl of salisbury, w. earl of warren, g. de clare earl of gloucester and hereford, w. de ferrars earl of derby, w. de mandeville earl of essex, h. de bygod earl of norfolk, w. earl of albemarle, h. earl of hereford, f. constable of chester, g. de tos, h. fitzwalter, r. de byponte, w. de bruer, r. de montefichet, p. fitzherbert, w. de aubenie, f. gresly, f. de breus, f. de monemue, f. fitzallen, h. de mortimer, w. de beuchamp, w. de st. john, p. de mauli, brian de lisle, thomas de multon, r. de argenteyn, g. de nevil, w. de mauduit, f. de balun, and others. given at westminster the th day of february the th year of our reign. we, ratifying and approving these gifts and grants aforesaid, confirm and make strong all the same for us and our heirs perpetually, and by the tenour of these presents, do renew the same; willing and granting for us and our heirs, that this charter, and all singular his articles, forever shall be stedfastly, firmly, and inviolably observed; and if any article in the same charter contained, yet hitherto peradventure has not been kept, we will, and by royal authority, command, from henceforth firmly they be observed. statutes which were enacted after the magna carta follow: nuisance is recognized by this statute: "every freeman, without danger, shall make in his own wood, or in his land, or in his water, which he has within our forest, mills, springs, pools, clay pits, dikes, or arable ground, so that it does not annoy any of his neighbors." anyone taking a widow's dower after her husband's death must not only return the dower, but pay damages in the amount of the value of the dower from the time of death of the husband until her recovery of seisin. widows may bequeath the crop of their ground as well of their dowers as of their other lands and tenements. freeholders of tenements on manors shall have sufficient ingress and egress from their tenements to the common pasture and as much pasture as suffices for their tenements. "grain shall not be taken under the pretense of borrowing or the promise of after-payment without the permission of the owner." "a parent or other who forcefully leads away and withholds, or marries off, an heir who is a minor (under ), shall yield the value of the marriage and be imprisoned until he has satisfied the king for the trespass. if an heir years or older marries without his lord's permission to defraud him of the marriage and the lord offers him reasonable and convenient marriage, without disparagement, then the lord shall hold his land beyond the term of his age, that, of twenty one years, so long that he may receive double the value of the marriage as estimated by lawful men, or after as it has been offered before without fraud or collusion, and after as it may be proved in the king's court. any lord who marries off a ward of his who is a minor and cannot consent to marriage, to a villain or other, such as a burgess, whereby the ward is disparaged, shall lose the wardship and all its profits if the ward's friends complain of the lord. the wardship and profit shall be converted to the use of the heir, for the shame done to him, after the disposition and provision of his friends." (the "marriage" could be annulled by the church.) "if an heir of whatever age will not marry at the request of his lord, he shall not be compelled thereunto; but when he comes of age, he shall pay to his lord the value of the marriage before receiving his land, whether or not he himself marries." "interest shall not run against any minor, from the time of death of his ancestor until his lawful age; so nevertheless, that the payment of the principal debt, with the interest that was before the death of his ancestor shall not remain." the value of debts to be repaid to the king or to any man shall be reasonably determined by the debtor's neighbors and not by strangers. a debtors' plough cattle or sheep cannot be taken to satisfy a debt. the wards and escheats of the king shall be surveyed yearly by three people assigned by the king. the sheriffs, by their counsel, shall approve and let to farm such wards and escheats as they think most profitable for the king. the sheriffs shall be answerable for the issues thereof in the exchequer at designated times. the collectors of the customs on wool exports shall pay this money at the two designated times and shall make yearly accounts of all parcels in ports and all ships. by statute leap year was standardized throughout the nation, "the day increasing in the leap year shall be accounted in that year", "but it shall be taken and reckoned in the same month wherein it grew and that day and the preceding day shall be counted as one day." "an english penny, called a sterling, round and without any clipping, shall weigh wheat grains dry in the middle of the ear." measurements of distance were standardized to twelve inches to a foot, three feet to a yard, and so forth up to an acre of land. goods which could only be sold by the standard weights and measures (such as ounces, pounds, gallons, bushels) included sacks of wool, leather, skins, ropes, glass, iron, lead, canvas, linen cloth, tallow, spices, confections cheese, herrings, sugar, pepper, cinnamon, nutmeg, wheat, barley, oats, bread, and ale. the prices required for bread and ale were based on the market price for the wheat, barley, and oats from which they were made. the punishment for repeated violations of required measures, weights, or prices of bread and ale by a baker or brewer; selling of spoiled or unwholesome wine, meat, fish by brewers, butchers, or cooks; or a steward or bailiff receiving a bribe was reduced to placement in a pillory with a shaven head so that these men would still be fit for military service and not overcrowd the gaols. forest penalties were changed so that "no man shall lose either life or member [limb] for killing of our deer. but if any man be taken and convicted for taking our venison, he shall make a grievous fine, if he has anything. and if he has nothing to lose, he shall be imprisoned for a year and a day. and after that, if he can find sufficient sureties, he shall be delivered, and, if not, he shall abjure the realm of england." the forest charter provided that: every freeman may allow his pigs to eat in his own wood in the king's forest. he may also drive his pigs through the king's forest and tarry one night within the forest without losing any of his pigs. but people having greyhounds must keep them out of the forest so they don't maim the deer. the forest charter also allowed magnates traveling through the king's forest on the king's command to come to him, to kill one or two deer as long as it was in view of the forester if he was present, or while having a horn blown, so it did not seem to be theft. after a period of civil war, the following statutes were enacted: "all persons, as well of high as of low estate, shall receive justice in the king's court; and none shall take any such revenge or distress by his own authority, without award of our court, although he is damaged or injured, whereby he would have amends of his neighbor either higher or lower." the penalty is a fine according to the trespass. a fraudulent conveyance to a minor or lease for a term of years made to defraud a lord of a wardship shall be void. a lord who maliciously and wrongfully alleges this to a court shall pay damages and costs. if a lord will not render unto an heir his land when he comes of age or takes possession away from an heir of age or removes anything from the land, he shall pay damages. (the king retained the right to take possession of an heir's land for a year or, in lieu of this, to take one year's profit from the land in addition to the relief.) kinsmen of a minor heir who have custody of his land held in socage shall make no waste, sale, nor destruction of the inheritance and shall answer to the heir when he comes of age for the issues of the land, except for the reasonable costs of these guardians. no lord may distrain any of his tenants. no one may drive animals taken by distraint out of the county where they have been taken. "farmers during their terms, shall not make waste, sale, nor exile of house, woods, and men, nor of any thing else belonging to the tenements which they have to farm". church law required that planned marriages be publically announced by the priest so that any impediment could be made known. if a marriage was clandestine or both parties knew of an impediment, or it was within the prohibited degrees of consanguinity, the children would be illegitimate. according to church rules, a man could bequeath his personal property subject to certain family rights. these were that if only the wife survived, she received half the property. similarly, if children survived, but no wife, they received half the property. when the wife and children survived, each party received one third. the church hoped that the remaining fraction would go to the church as a reward for praying for the deceased's soul. it taught that dying without a will was sinful. adults were to confess their sins at least yearly to their parish priest, which confession would be confidential. henry de bracton, a royal justice and the last great ecclesiastical attorney, wrote an unfinished treatise: a tract on the laws and customs of england, systematizing and organizing the law of the court rolls with definitions and general concepts and describing court practice and procedure. it was influenced by his knowledge of roman legal concepts, such as res judicata, and by his own opinions, such as that the law should go from precedent to precedent. he also argued that the will and intent to injure was the essence of murder, so that neither an infant nor a madman should be held liable for such and that degrees of punishment should vary with the level of moral guilt in a killing. he thought the deodand to be unreasonable. bracton defines the requirements of a valid and effective gift as: "it must be complete and absolute, free and uncoerced, extorted neither by fear nor through force. let money or service play no part, lest it fall into the category of purchase and sale, for if money is involved there will then be a sale, and if service, the remuneration for it. if a gift is to be valid the donor must be of full age, for if a minor makes a gift it will be ineffective since (if he so wishes) it shall be returned to him in its entirety when he reaches full age. also let the donor hold in his own name and not another's, otherwise his gift may be revoked. and let him, at the least, be of sound mind and good memory, though an invalid, ill and on his death bed, for a gift make under such conditions will be good if all the other [requirements] of a valid gift are met. for no one, provided he is of good memory, ought to be kept from the administration or disposition of his own property when affected by infirmity, since it is only then that he must make provision for his family, his household and relations, given stipends and settle his bequests; otherwise such persons might suffer damage without fault. but since charters are sometimes fraudulently drawn and gifts falsely taken to be made when they are not, recourse must therefore be had to the country and the neighborhood so that the truth may be declared." in bracton's view, a villein could buy his own freedom and the child of a mixed marriage was free unless he was born in the tenement of his villein parent. - judicial procedure - the royal court split up into several courts with different specialties and became more like departments of state than offices of the king's household. the justices were career civil servants knowledgeable in the civil and canon law. the court of the king's bench (a marble slab in westminster upon which the throne was placed) traveled with the king and heard criminal cases and pleas of the crown. any use of force, however trivial, was interpreted as breach of the royal peace and could be brought before the king's bench. its records were the coram rege rolls. the title of the chief justiciar of england changed to the chief justice of england. the court of common pleas heard civil cases brought by one subject against another. pursuant to the magna carta, it sat only at one place, the great hall in westminster. it had concurrent jurisdiction with the king's bench over trespass cases. its records were the de banco rolls. the court of the exchequer with its subsidiary department of the treasury was in almost permanent session at westminster, collecting the crown's revenue and enforcing the crown's rights. appeals from these courts could be made to the king and/or his small council, which was the curia regis and could hear any plea of the land. in , the justiciar as the principal royal executive officers and chief presiding officer over the curia regis ended. in , a chief justiciar was appointed the hold pleas before the king. henceforth, a justiciar was a royal officer who dealt only with judicial work. about the same time the presiding justice of the court of common pleas also came to be styled justiciar or chief justice. justices were no longer statesmen or politicians, but simply men learned in the law. membership in or attendance at the great council or parliament no longer rested upon feudal tenure, but upon a writ of summons which was, to a degree, dependent on the royal will. crown pleas included issues of the king's property, fines due to him, murder (a body found with no witnesses to a killing), homicide (a killing for which there were witnesses), rape, wounding, mayhem, consorting, larceny, robbery, burglary, arson, poaching, unjust imprisonment, selling cloth by non-standard widths, selling wine by non-standard weights. crown causes were pled by the king's serjeants or servants at law, who were not clerics. apprentices at law learned pleading from them. between the proprietary action and the possessory assizes there is growing use in the king's courts of writs of entry, by which a tenant may be ordered to give up land, e.g. by a recent flaw in a tenant's title, for a term which has expired, by a widow for her late husband's land, or by an heir who has become of full age from his guardian. for instance: " ...command tertius that ... he render to claimant, who is of full age, as it is said, ten acres ...which he claims to be his right and inheritance and into which the said tertius has no entry save by secundus, to whom primus demised [gaged] them, who had only the wardship thereof while the aforesaid claimant was under age, as he says...". but most litigation about land is still through the writ of right for proprietary issues and the assizes of novel disseisin and mort d'ancestor for possessory issues. royal itinerant justices traveled to the counties every seven years. there, they gave interrogatories to local assizes of twelve men to determine what had happened there since the last eyre. all boroughs had to send twelve burgesses who were to indict any burgesses suspected of breaking the royal law. every crime, every invasion of royal rights, and every neglect of police duties was to be presented and tried. suspects were held in gaol until their cases could be heard and gaol breaks were common. punishment after trial was prison for serious crimes, expulsion from the realm for less serious crimes, and pledges for good behavior for lesser crimes. the visitation of these justices was anticipated with trepidation. in , the residents of cornwall hid in the woods rather than face the itinerant justices. royal coroners held inquests on all sudden deaths to determine whether they were accidental or not. if not, royal justices held trial. they also had duties in treasure trove and shipwreck cases. justices of assize, justices of the peace, and itinerant justices operated at the county level. the traditional county courts had lost much jurisdiction to the royal courts and were now limited to personal actions in causes involving usually no more than s. there were pleas of trespass and debt, unjust seizure and detention of beasts, rent collection, claims of fugitive villeins and their goods, nuisances, and encroachments. the sheriff still constitutes and conducts the court. the county court met every three or four weeks, usually in the sheriff's castle located in the chief borough of the county, but some met in the open air. twice a year the sheriff visited each hundred in the county to hold a turn [court for small offenses, such as encroachment of public land, brewing and baking contrary to government regulations, and use of dishonest weights and measures.]. everyone who held freehold land in the hundred except the greater magnates had to attend or be fined for absence. the sheriff annually viewed frankpledge, in which every layman without land that could be forfeited for felony, including villeins, were checked for being in a tithing, a group of neighbors responsible for each other's good conduct. this applied to every boy who had reached the age of twelve. he had to swear on the bible "i will be a lawful man and bear loyalty to our lord the king and his heirs, and i will be justicable to my chief tithing man, so help me god and the saints." each tithing man paid a penny to the sheriff. the hundred court decided cases of theft, viewing of boundaries of land, claims for tenurial services, claims for homage, relief, and for wardship; enfeoffments made, battery and brawls not amounting to felony, wounding and maiming of beasts, collection of debts, trespass, detinue [detention of personal property which originally was rightfully acquired] and covenant, which now requires a sealed writing; defamation, and enquiries and presentments arising from the assizes of bread and ale and measures. a paid bailiff had responsibility for the hundred court, which met every three weeks. still in existence is the old self-help law of hamsocne, the thief hand-habbende, the thief back-berend, the old summary procedure where the thief is caught in the act, aethelstan's laws, edward the confessor's laws, and kent's childwyte [fine for begetting a bastard on a lord's female bond slave]. under the name of "actio furti" [appeal of larceny] is the old process by which a thief can be pursued and goods vindicated. as before and for centuries later, deodands were forfeited to the king to appease god's wrath. these chattel which caused the death of a person were usually carts, cart teams, horses, boats, or mill-wheels. then they were forfeited to the community, which paid the king their worth. sometimes the justices named the charitable purpose for which the deodand was to be spent, such as the price of a boat to go to the repair of a bridge. five cases with short summaries are: case: "john croc was drowned from his horse and cart in the water of bickney. judgment: misadventur. the price of the horse and cart is s. d. s. d. deodand." case: "willam ruffus was crushed to death by a certain trunk. the price of the trunk is d., for which the sheriff is to answer. d. deodand." case: "william le hauck killed edric le poter and fled, so he is to be exacted and outlawed. he was in the tithing of reynold horloc in clandon of the abbot of chertsey (west clandon), so it is in mercy. his chattels were s., for which the bailiff of the abbot of chertsey is to answer." case: "richard de bregsells, accused of larceny, comes and denies the whole and puts himself on the country for good or ill. the twelve jurors and four vills say that he is not guilty, so he is quit." case: william le wimpler and william vintner sold wine contrary to the statute, so they are in mercy. other cases dealt with issues of entry, e.g. whether land was conveyed or just rented; issues of whether a man was free, for which his lineage was examined; issues of to which lord a villein belonged; issues of nuisance such as making or destroying a bank, ditch, or hedge; diverting a watercourse or damming it to make a pool; obstructing a road, and issues of what grazing rights were conveyed in pasture land, waste, woods, or arable fields between harvest and sowing. grazing right disputes usually arose from the ambiguous language in the grant of land "with appurtenances". courts awarded specific relief as well as money damages. if a landlord broke his covenant to lease land for a term of years, the court restored possession to the lessee. if a lord did not perform the services due to his superior lord, the court ordered him to perform the services. the courts also ordered repair by a lessee. debts of country knights and freeholders were heard in the local courts; debts of merchants and burgesses were heard in the courts of the fairs and boroughs; debts due under wills and testaments were heard in the ecclesiastical courts. the ecclesiastical courts deemed marriage to legitimize bastard children whose parents married, so they inherited personal property and money of their parents. proof was by compurgation. church law required excommunication to be in writing with the reasons therefore, and a copy given to the excommunicant. a church judge was required to employ a notary or two men to write down all acts of the judge and to give a copy to the parties to protect against unjust judges. no cleric was allowed to pronounce or execute a sentence of death or to take part in judicial tests or ordeals. anyone knowingly accepting a stolen article was required to restore it to its owner. heretics were to be excommunicated. trial by combat is still available, although it is extremely rare for it to actually take place. the manor court imposed penalties on those who did not perform their services to the manor and the lord wrote down the customs of the manor for future use in other courts. by statute, no fines could be taken of any man for fair pleading in the circuit of justiciars, county, hundred, or manor courts. various statutes relaxed the requirements for attendance at court of those who were not involved in a case as long as there were enough to make the inquests fully. and "every freeman who owes suit to the county, tything, hundred, and wapentake, or to the court of his lord, may freely make his attorney attend for him." all above the rank of knight were exempted from attendance on the sheriff's turn, unless specifically summoned. prelates and barons were generally excepted from the county courts by the charters of their estates. charters of boroughs often excepted their representatives at the county court when there were no justices. some barons and knights paid the sheriff to be excused. the king often relieved the simple knights by special license. there was frequently a problem of not having enough knights to hold the assizes. henry iii excused the attendance at hundred courts of all but those who were bound to special service, or who were concerned in suits. trespass has become a writ of course in the common law. it still involves violence, but its element of breach of the peace extends to those breaches which do not amount to felony. it can include assault and battery, physical force to land, and physical force to chattels, e.g. assaulting and beating the plaintiff, breaking into his close, or carrying off his goods. one found guilty is fined and imprisoned. as in criminal matters, if a defendant does not appear at court, his body can be seized and imprisoned, and if he cannot be found, he may be outlawed. trespass to goods results in damages, rather than the return of the goods, for goods carried off from the plaintiff's possession and can be brought by bailees. in chancery, the court of the chancellor, if there is a case with no remedy specified in the law, that is similar to a situation for which there is a writ, then a new writ may be made for that case. (by this will later be expanded the action of trespass called "trespass on the case".) various cases from the manors of the abbey of bec in - are: . ragenilda of bec gives s. for having married without licence. pledge, william of pinner. the same ragenilda demands against roger loft and juliana his wife a certain messuage which belonged to robert le beck, and a jury of twelve lawful men is granted her in consideration of the said fine, and if she recovers seisin she will give in all s. and twelve jurors are elected, to wit, john of hulle, william maureward, robert hale walter but, walter sigar, william brihtwin, richard horseman, richard leofred, william john's son, hugh cross, richard pontfret and robert croyser, john bisuthe and gilbert bisuthe who are sworn. and they say that the said ragenilda has the greater right. therefore let her have seisin. ruislip [middlesex]. saturday after the purification of the blessed virgin. . richard guest gives d. and if he recovers will give s. to have a jury of twelve lawful men as to whether he has the greater right in a certain headland at eastcot which ragenilda widow of william andrews holds, or the said ragenilda. pledges for the fine, john brook and richard of pinner. and the said ragenilda comes and says that she has no power to bring that land into judgment because she has no right in it save by reason of the wardship of the son and heir of her husband, who is under age. and richard is not able to deny this. therefore let him await [the heir's] full age. . walter hulle gives s. d. for licence to dwell on the land of the prior of harmondsworth so long as he shall live and as a condition finds pledges, to wit, william slipper, john bisuthe, gilbert bisuthe, hugh tree, william john's son, john hulle, who undertake that the said walter shall do to the lord all the services and customs which he would do if he dwelt on the lord's land and that his heriot shall be secured to the lord in case he dies there [i.e. at harmondsworth]. . geoffrey sweyn demands the moiety of one virgate of land which john crisp and alina hele hold, and he gives s. to have a jury, and if he recovers will give s. and the said jurors come and say upon their oath that the said geoffrey has no right in the said land. therefore let the said tenants go thence without day and let the said geoffrey pay s. pledges, hugh bussel and godfrey francis. . juliana saer's daughter demands as her right the moiety of one messuage with a croft, which messuage william snell and goda his wife, sister of the said juliana hold. and they have made accord by leave [of the court] to the effect that the said william and goda give to the said juliana a barn and the curtilage nearest the green and two selions [a ridge of land between two furrows] in the western part of the said croft [a small enclosed field]. and the said william put himself in mercy. fine, d. . hugh of stanbridge complains of gilbert vicar's son and william of stanbridge that the wife of the said gilbert who is of [gilbert's] mainpast and the said william unjustly etc. beat and unlawfully struck him and dragged him by his hair out of his own proper house, to his damage s. and to his dishonour s., and [of this] he produces suit. and gilbert and william come and defend all of it fully. therefore let each of them go to his law six-handed. afterwards they make accord to this effect that in case the said hugh shall hereafter in any manner offend against [gilbert and william] and thereof shall be convicted he will give the lord s. d. by way of penalty and will make amends to [gilbert and william] according to the judgment of six lawful men, and the others on their part will do the like by him. and hugh put himself in mercy. fine, s. pledges, john tailor and walter brother. . breakers of the assize [of beer:] william idle (fined d.), maud carter's widow ( d.), walter carter. . john witriche in mercy for carrying off thorns. fine, d. . robert dochi in mercy (fine, d.) for divers trespasses. pledges, gilbert priest's son, ralph winbold and walter green. . ailwin crisp in mercy for his cow caught in the lord's pasture when ward had been made. fine, d. . john bernard in mercy for his beasts caught by night in the lord's meadow. fine, s. . richard love gives d. to have a jury of twelve touching a rod of land which robert of brockhole and juliana his wife hold. this action is respited to the next court [when the jurors are to come] without further delay. afterwards the jurors come and say upon their oath that the said richard has the greater right in the said land. therefore let him have seisin. . william blackbeard in mercy for not coming with his law as he was bound to do. pledges, geoffrey of wick and geoffrey payn. fine, d. . it was presented that stephen shepherd by night struck his sister with a knife and grievously wounded her. therefore let him be committed to prison. afterwards he made fine with s. pledge, geoffrey of wick. . it was presented that robert carter's son by night invaded the house of peter burgess and in felony threw stones at his door so that the said peter raised the hue. therefore let the said robert be committed to prison. afterwards he made fine with s. . nicholas drye, henry le notte (fine, d.) and thomas hogue (fine, d.) were convicted for that they by night invaded the house of sir thomas the chaplain and forcibly expelled thence a man and woman who had been taken in there as guests. therefore they are in mercy. pledges of the said thomas, richard of lortemere and jordan of paris. pledges of the said henry, richard pen... and richard butry. . adam moses gives half a sextary of wine to have an inquest as to whether henry ayulf accused him of the crime of larceny and used opprobrious and contumelious words of him. afterwards they made accord and henry finds security for an amercement. fine, d. . isabella sywards in mercy for having sold to richard bodenham land that she could not warrant him. . all the ploughmen of great ogbourne are convicted by the oath of twelve men...because by reason of their default [the land] of the lord was ill ploughed whereby the lord is damaged to the amount of s.... and walter reaper is in mercy for concealing [i.e. not giving information as to] the said bad ploughing. afterwards he made fine with the lord with mark. . from ralph joce s. d. for his son, because he [the son] unlawfully carried off grain from the lord's court. pledge, geoffrey joce. . from henry pink d. for a trespass by waylaying. . from eve corner d. for a trespass of her pigs. . from ralph scales d. for timber carried off. . from william cooper d. for ploughing his own land with the lord's plough without licence. . from hugh newman d. for trespass in the wood. . from richard penant d. for the same. . from helen widow of little ogbourne d. for the same. . from nicholas siward d. for a false complaint against william pafey. . from william pafey d. for fighting with the said nicholas. . from the widow of ralph shepherd d. for a trespass in pencombe. . richard blund gives a half-mark and if he recovers will give two marks and a half to have a jury of the whole court, to inquire whether he has the greater right in a virgate of land which hugh frith holds in wardship with cristiana daughter of simon white, or the said cristiana. pledges for the fine, richard dene, william hulle, john of senholt, hugh smith, and william ketelburn. and the whole court say upon their oath that the said richard has greater right in the said land than anyone else. therefore let him recover his seisin. ....miller gives d. [the latin translates as s.] for a trespass against the assize of beer and because the lord's grain has been ill kept at the mill. pledges, john orped and joce serjeant. . noah gives s. in the same way for an inquest as to one acre. afterwards they submit themselves to arbitrators, who adjudge that the said robert shall pay s. to the said roger and s. to the said gilbert and s. to the said noah, and that he will do so [robert] finds pledges. . ralph bar in mercy for having beaten one of the lord's men. pledges, herbert rede and ralph brunild. . for the common fine of the township, a half-mark. . john boneffiant found pledges, to wit, william smith and william of bledlow, that he will not eloign himself from the lord's land and that he will be prompt to obey the lord's summons. - - - chapter - - - - the times: - - king edward i was respected by the people for his good government, practical wisdom, and genuine concern for justice for everyone. he loved his people and wanted them to love him. he came to the throne with twenty years experience governing lesser lands on the continent which were given to him by his father henry iii. he spoke latin, english, and french. he gained a reputation as a lawgiver and as a peacemaker in disputes on the continent. his reputation was so high and agreement on him as the next king so strong that england was peaceful in the almost two years that it took him to arrive there from continental business. he was truthful, law-abiding, and kept his word. he had close and solid family relationships, especially with his father and with his wife eleanor, to whom he was faithful. he was loyal to his close circle of good friends. he valued honor and adhered reasonably well to the terms of the treaties he made. he was generous in carrying out the royal custom of subsidizing the feeding of paupers. he visited the sick. he was frugal and dressed in plain, ordinary clothes rather than extravagant or ostentatious ones. he disliked ceremony and display. at his accession, there was a firm foundation of a national law administered by a centralized judicial system, a centralized executive, and an organized system of local government in close touch with both the judicial and the executive system. to gain knowledge of his nation, he sent royal commissioners into every county to ask about any encroachments on the king's rights and about misdeeds by any of the king's officials: sheriffs, bailiffs, or coroners. the results were compiled as the "hundred rolls". they were the basis of reforms which improved justice at the local as well as the national level. they also rationalized the array of jurisdictions that had grown up with feudal government. statutes were passed by a parliament of two houses, that of peers (lords) and that of an elected [rather than appointed] commons, and the final form of the constitution was fixed. wardships of children and widows were sought because they were very profitable. a guardian could get one tenth of the income of the property during the wardship and a substantial marriage amount when the ward married. parents often made contracts to marry for their young children. this avoided a forced marriage by a ward should the parents die. most earldoms and many baronages came into the royal house by escheat or marriage. the royal house employed many people. the barons developed a class consciousness of aristocracy and became leaders of society. many men, no matter of whom they held land, sought knighthood. the king granted knighthood by placing his sword on the head of able-bodied and moral candidates who swore an oath of loyalty to the king and to defend "all ladies, gentlewomen, widows and orphans" and to "shun no adventure of your person in any war wherein you should happen to be". a code of knightly chivalry became recognized, such as telling the truth and setting wrongs right. about half of the knights were literate. in , the king issued a writ ordering all free-holders who held land of the value of at least s. to receive knighthood at the king's hands. at the royal house and other great houses gentlemanly jousting competitions, with well-refined and specific rules, took the place of violent tournaments with general rules. edward forbade tournaments at which there was danger of a "melee". at these knights competed for the affection of ladies by jousting with each other while the ladies watched. courtly romances were common. if a man convinced a lady to marry him, the marriage ceremony took place in church, with feasting and dancing afterwards. romantic stories were at the height of their popularity. a usual theme was the lonely quest of a knight engaged in adventures which would impress his lady. riddles include: . i will make you a cross, and a thing will not touch you, and you will not be able to leave the house without breaking that cross. answer: stand before a post in your house, with your arms extended. . what you do not know, and i do not know, and no one can know after i have told you. answer: i will take a straw from the floor of the room, measure its inches, tell you the length, and break the straw. . a pear tree bears all the fruit a pear tree can bear and did not bear pears. answer: it bore only one pear. the dress of the higher classes was very changeable and subject to fashion as well as function. ladies no longer braided their hair in long tails, but rolled it up in a net under a veil, often topped with an elaborate and fanciful headdress. they wore non- functional long trains on their tunics and dainty shoes. men wore a long gown, sometimes clasped around the waist. overtunics were often lined or trimmed with native fur such as squirrel. people often wore solid red, blue, or green clothes. only monks and friars wore brown. the introduction of buttons and buttonholes to replace pins and laces made clothing warmer, and it could be made tighter. after edward i established the standard inch as three continuous dried barleycorns, shoes came in standard sizes and with a right one different from a left one. the spinning wheel came into existence to replace the hand-held spindle. now one hand could be used to form the thread while the other hand turned a large upright wheel that caused the thread to wind around the spindle, which did not have to be held by hand. this resulted in an uninterrupted spinning motion which was not interrupted by alternately forming the thread and winding it on the spindle. lords surrounded themselves with people of the next lower rank, usually from nearby families, and had large households. for instance, the king had a circle of noblemen and ladies about him. a peer or great prelate had a household of about - people, among which were his inner circle, companions, administrators, secretaries, bodyguards and armed escort, chaplain, singing priests and choirboys, and servants. all officers of the household were gentlemen. the secretary was usually a clerk, who was literate because he had taken minor clerical orders. since the feudal obligation of the tenants was disappearing, a lord sometimes hired retainers to supplement his escort of fighting men. they proudly wore his livery of cloth or hat, which was in the nature of a uniform or badge of service. a nobleman and his lady had a circle of knights and gentlemen and their ladies. a knight had a circle of gentlemen and their ladies. the great barons lived in houses built within the walls of their castles. lesser barons lived in semi-fortified manors, many of which had been licensed to be embattled or crenellated. their halls were two stories high, and usually built on the first rather than on the second floor. windows came down almost to the floor. the hall had a raised floor at one end where the lord and lady and a few others sat at a high table. the hearth was in the middle of the room or on a wall. sometimes a cat was used to open and shut the louvers of the smoke outlet in the roof. the lord's bedroom was next to the hall on the second floor and could have windows into the hall and a spiral staircase connecting the two rooms. there was a chapel, in which the lord attended mass every morning. the many knights usually lived in unfortified houses with two rooms. in the great houses, there were more wall hangings, and ornaments for the tables. the tables were lit with candles or torches made of wax. plates were gold and silver. the lord, his lady, and their family and guests sat at the head table, which was raised on a dais. on this high table was a large and elaborate salt cellar. one's place in relationship to the salt cellar indicated one's status: above or below the salt. also, those of higher status at the table ate a superior bread. the almoner [alms giver] said grace. gentlemen poured the lord's drink [cupbearer], served his meat [carver], and supervised the serving of the food [sewer]. a yeoman ewery washed the hands of the lord and his guests and supplied the napkins, ewers [pitchers], and basins. a yeoman cellarer or butler served the wine and beer. the yeoman of the pantry served the bread, salt, and cutlery. the steward presided over the table of household officers of gentle birth. the marshall of the hall, clerk of the kitchen, or other yeomen officers supervised other tables. salt and spices were available at all tables. most people ate with their fingers, although there were knives and some spoons. drinking vessels were usually metal, horn, or wood. a marshall and ushers kept order. minstrels played musical instruments or recited histories of noble deeds or amusing anecdotes. reading aloud was a favorite pastime. the almoner collected the left-overs to distribute to the poor. in lesser houses people ate off trenchers [a four day old slab of coarse bread or a piece of wood with the middle scooped out like a bowl], or plates of wood or pewter [made from tin, copper, and lead]. they often shared plates and drinking vessels at the table. queen eleanor, a cultivated, intelligent, and educated lady from the continent, fostered culture and rewarded individual literary efforts, such as translations from latin, with grants of her own money. she patronized oxford and cambridge universities and left bequests to poor scholars there. she herself had read aristotle and commentaries thereon, and she especially patronized literature which would give cross-cultural perspectives on subjects. she was kind and thoughtful towards those about her and was also sympathetic to the afflicted and generous to the poor. she shared edward's career to a remarkable extent, even accompanying him on a crusade. she had an intimate knowledge of the people in edward's official circle and relied on the advice of two of them in managing her lands. she mediated disputes between earls and other nobility, as well as softened her husband's temper towards people. edward granted her many wardships and marriages and she arranged marriages with political advantages. she dealt with envoys coming to the court. her intellectual vitality and organized mentality allowed her to deal with arising situations well. edward held her in great esteem. she introduced to england the merino sheep, which, when bred with the english sheep, gave them a better quality of wool. she and edward often played games of chess and backgammon. farm efficiency was increased by the use of windmills in the fields to pump water and by allowing villeins their freedom and hiring them as laborers only when needed. customary service was virtually extinct. a man could earn d. for reaping, binding, and shocking into a pile, an acre of wheat. a strong man with a wife to do the binding could do this in a long harvest day. harvests were usually plentiful, with the exception of two periods of famine over the country due to weather conditions. then the price of wheat went way up and drove up the prices of all other goods correspondingly. the story of outlaw robin hood, who made a living by robbing, was passed around. this robin hood did not give to the poor. but generally, there was enough grain to store so that the population was no longer periodically devastated by famine. the population grew and all arable land in the nation came under the plough. the acre was standardized. about , the price of an ox was s., a heifer or cow s., a hide s. d., a cart horse or pounds. farm women went to nearby towns to sell eggs and dairy products, usually to town women. although manors needed the ploughmen, the carters and drivers, the herdsmen, and the dairymaid on a full-time basis, other tenants spent increasing time in crafts and became village carpenters, smiths, weavers or millers' assistants. trade and the towns grew. smiths used coal in their furnaces. money rents often replaced service due to a lord, such as fish silver, malt silver, or barley silver. the lord's rights are being limited to the rights declared on the extents [records showing service due from each tenant] and the rolls of the manor. sometimes land is granted to strangers because none of the kindred of the deceased will take it. often a manor court limited a fee in land to certain issue instead of being inheritable by all heirs. surveyors' poles marked boundaries declared by court in boundary disputes. this resulted in survey maps showing villages and cow pastures. the revival of trade and the appearance of a money economy was undermining the long-established relationship between the lord of the manor and his villeins. as a result, money payments were supplementing or replacing payments in service and produce as in martham, where thomas knight held twelve acres in villeinage, paid d. for it and d. in special aids. "he shall do sixteen working days in august and for every day he shall have one repast - viz. bread and fish. he shall hoe ten days without the lord's food - price of a day / d. he shall cart to norwich six cartings or shall give d., and he shall have for every carting one leaf and one lagena - or gallon - of ale. also for ditching d. he shall make malt / seams of barley or shall give d. also he shall flail for twelve days or give d. he shall plough if he has his own plough, and for every ploughing he shall have three loaves and nine herrings ... for carting manure he shall give ." another example is this manor's holdings, when d. would buy food for a day: "extent of the manor of bernehorne, made on wednesday following the feast of st. gregory the pope, in the thirty-fifth year of the reign of king edward, in the presence of brother thomas, keeper of marley, john de la more, and adam de thruhlegh, clerks, on the oath of william de gocecoumbe, walter le parker, richard le knyst, richard the son of the latter, andrew of estone, stephen morsprich, thomas brembel, william of swynham, john pollard, roger le glide, john syward, and john de lillingewist, who say that there are all the following holdings:... john pollard holds a half acre in aldithewisse and owes d. at the four terms, and owes for it relief and heriot. john suthinton holds a house and acres of land and owes s. d. at easter and michaelmas. william of swynham holds one acre of meadow in the thicket of swynham and owes d. at the feast of michaelmas. ralph of leybourne holds a cottage and one acre of land in pinden and owes s. at easter and michaelmas, and attendance at the court in the manor every three weeks, also relief and heriot. richard knyst of swynham holds two acres and a half of land and owes yearly s. william of knelle holds two acres of land in aldithewisse and owes yearly s. roger le glede holds a cottage and three roods of land and owes s. d. easter and michaelmas. alexander hamound holds a little piece of land near aldewisse and owes one goose of the value of d. the sum of the whole rent of the free tenants, with the value of the goose, is s. d. they say, moreover, that john of cayworth holds a house and acres of land, and owes yearly s. at easter and michaelmas; and he owes a cock and two hens at christmas of the value of d. and he ought to harrow for two days at the lenten sowing with one man and his own horse and his own harrow, the value of the work being d.; and he is to receive from the lord on each day three meals, of the value of d., and then the lord will be at a loss of d. thus his harrowing is of no value to the service of the lord. and he ought to carry the manure of the lord for two days with one cart, with his own two oxen, the value of the work being d.; and he is to receive from the lord each day three meals at the value as above. and thus the service is worth d. clear. and he shall find one man for two days, for mowing the meadow of the lord, who can mow, by estimation, one acre and a half, the value of the mowing of an acre being d.: the sum is therefore d. and he is to receive each day three meals of the value given above. and thus that mowing is worth d. clear. and he ought to gather and carry that same hay which he has cut, the price of the work being d. and he shall have from the lord two meals for one man, of the value of / d. thus the work will be worth / d. clear. and he ought to carry the hay of the lord for one day with a cart and three animals of his own, the price of the work being d. and he shall have from the lord three meals of the value of / d. and thus the work is worth / d. clear. and he ought to carry in autumn beans or oats for two days with a cart and three animals of his own, the value of the work being d. and he shall receive from the lord each day three meals of the value given above. and thus the work is worth d. clear. and he ought to carry wood from the woods of the lord as far as the manor, for two days in summer, with a cart and three animals of his own, the value of the work being d. and he shall receive from the lord each day three meals of the price given above. and thus the work is worth d. clear. and he ought to find one man for two days to cut heath, the value of the work being d., and he shall have three meals each day of the value given above: and thus the lord will lose, if he receives the service, d. thus that mowing is worth nothing to the service of the lord. and he ought to carry the heath which he has cut, the value of the work being d. and he shall receive from the lord three meals at the price of / d. and thus the work will be worth / d. clear. and he ought to carry to battle, twice in the summer season, each time half a load of grain, the value of the service being d. and he shall receive in the manor each time one meal of the value of d. and thus the work is worth d. clear. the totals of the rents, with the value of the hens, is s. d. the total of the value of the works is s. / d., being owed from the said john yearly. william of cayworth holds a house and acres of land and owes at easter and michaelmas s. rent. and he shall do all customs just as the aforesaid john of cayworth. william atte grene holds a house and acres of land and owes in all things the same as the said john. alan atte felde holds a house and acres of land (for which the sergeant pays to the court of bixley s.), and he owes at easter and michaelmas s., attendance at the manor court, relief, and heriot. john lyllingwyst holds a house and four acres of land and owes at the two terms s., attendance at the manor court, relief, and heriot. the same john holds one acre of land in the fields of hoo and owes at the two periods s., attendance, relief, and heriot. reginald atte denne holds a house and acres of land and owes at the said periods d., attendance, relief, and heriot. robert of northehou holds three acres of land at saltcote and owes at the said periods attendance, relief, and heriot. total of the rents of the villeins, with the value of the hens, s. total of all the works of these villeins, s. / d. and it is to be noted that none of the above-mentioned villeins can give their daughters in marriage, nor cause their sons to be tonsured, nor can they cut down timber growing on the lands they hold, without licence of the bailiff or sergeant of the lord, and then for building purposes and not otherwise. and after the death of any one of the aforesaid villeins, the lord shall have as a heriot his best animal, if he had any; if, however, he have no living beast, the lord shall have no heriot, as they say. the sons or daughters of the aforesaid villeins shall give, for entrance into the holding after the death of their predecessors, as much as they give of rent per year. sylvester, the priest, holds one acre of meadow adjacent to his house and owes yearly s. total of the rent of tenants for life, s. petronilla atte holme holds a cottage and a piece of land and owes at easter and michaelmas - ; also, attendance, relief, and heriot. walter herying holds a cottage and a piece of land and owes at easter and michaelmas d., attendance, relief, and heriot. isabella mariner holds a cottage and owes at the feast of st. michael d., attendance, relief, and heriot. jordan atte melle holds a cottage and / acres of land and owes at easter and michaelmas s., attendance, relief, and heriot. william of batelesmere holds one acre of land with a cottage and owes at the feast of st. michael d., and one cock and one hen at christmas of the value of d., attendance, relief, and heriot. john le man holds half an acre of land with a cottage and owes at the feast of st. michael s., attendance, relief, and heriot. hohn werthe holds one rood of land with a cottage and owes at the said term d., attendance, relief, and heriot. geoffrey caumbreis holds half an acre and a cottage and owes at the said term d., attendance, relief, and heriot. william hassok holds one rood of land and a cottage and owes at the said term d., attendance, relief, and heriot. the same man holds / acres of land and owes yearly at the feast of st. michael s. for all. roger doget holds half an acre of land and a cottage, which were those of r. the miller, and owes at the feast of st. michael d., attendance, relief, and heriot. thomas le brod holds one acre and a cottage and owes at the said term s., attendance, relief, and heriot. agnes of cayworth holds half an acre and a cottage and owes at the said term d., attendance, relief, and heriot. total of the rents of the said cottagers, with the value of the hens, s. d. and it is to be noted that all the said cottagers shall do as regards giving their daughters in marriage, having their sons tonsured, cutting down timber, paying heriot, and giving fines for entrance, just as john of cayworth and the rest of the villeins above mentioned." the above fines and penalties, with heriots and reliefs, are worth s. yearly. often one village was divided up among two or more manors, so different manorial customs made living conditions different among the villagers. villages usually had carpenters, smiths, saddlers, thatchers, carters, fullers, dyers, soapmakers, tanners, needlers, and brassworkers. each villein had his own garden in which to grow fruit and vegetables next to his house, a pig (which fattened more quickly than other animals), strips in the common field, and sometimes an assart [a few acres of his own to cultivate as he pleased on originally rough uncultivated waste land beyond the common fields and the enclosed common pastures and meadows]. most villeins did not venture beyond their village except for about ten miles to a local shrine or great fair a couple times a year. at the fair might be fish, honey, spices, salt, garlic, oil, furs, silks, canvas, soap, pans, pots, grindstones, coal, nails, tar, iron, shovels, brushes, pails, horses, and pack-saddles. early apothecaries might sell potions there. men and women looking for other employment might attend to indicate their availability. under edward i, villages were required to mount watches to protect life and property and were called upon to provide one man for the army and to pay his wages. people told time by counting the number of rings of the church bell, which rang on the hour. every sunday, the villagers went to church, which was typically the most elaborate and centrally located building in the village. the parishioners elected churchwardens, who might be women. this religion brought comfort and hope of going to heaven after judgment by god at death if sin was avoided. on festival days, bible stories, legends, and lives of saints were read or performed as miracle dramas. they learned to avoid the devil, who was influential in lonely places like forests and high mountains. at death, the corpse was washed, shrouded, and put into a rectangular coffin with a cross on its lid. priests sang prayers amid burning incense for the deliverance of the soul to god while interring the coffin into the ground. men who did not make a will risked the danger of an intestate and unconfessed death. the personal property of a man dying intestate now went to the church as a trust for the dead man's immperiled soul instead of to the man's lord. unqualified persons entered holy orders thereby obtaining "benefit of clergy", and then returned to secular employments retaining this protection. a villein could be forever set free from servitude by his lord as in this example: "to all the faithful of christ to whom the present writing shall come, richard, by the divine permission, abbot of peterborough and of the convent of the same place, eternal greeting in the lord: let all know that we have manumitted and liberated from all yoke of servitude william, the son of richard of wythington, whom previously we have held as our born bondman, with his whole progeny and all his chattels, so that neither we nor our successors shall be able to require or exact any right or claim in the said william, his progeny, or his chattels. but the same william, with his whole progeny and all his chattels, shall remain free and quit and without disturbance, exaction, or any claim on the part of us or our successors by reason of any servitude forever. we will, moreover, and concede that he and his heirs shall hold the messuages, land, rents, and meadows in wythington which his ancestors held from us and our predecessors, by giving and performing the fine which is called merchet for giving his daughter in marriage, and tallage from year to year according to our will, - that he shall have and hold these for the future from us and our successors freely, quietly, peacefully, and hereditarily, by paying to us and our successors yearly s. sterling, at the four terms of the year, namely: at st. john the baptist's day s., at michaelmas s., at christmas s., and at easter s., for all service, exaction, custom, and secular demand; saving to us, nevertheless, attendance at our court of castre every three weeks, wardship, and relief, and outside service of our lord the king, when they shall happen. and if it shall happen that the said william or his heirs shall die at any time without an heir, the said messuage, land rents, and meadows with their appurtenances shall return fully and completely to us and our successors. nor will it be allowed to the said william or his heirs to give, sell, alienate, mortgage, or encumber in any way, the said messuage, land, rents, and meadows, or any part of them, by which the said messuage, land, rents, and meadows should not return to us and our successors in the form declared above. and if this should occur later, their deed shall be declared null, and what is thus alienated shall come to us and our successors... given at borough, for the love of lord robert of good memory, once abbot, our predecessor and maternal uncle of the said william, and at the instance of the good man, brother hugh of mutton, relative of the said abbot robert, a.d. , on the eve of pentecost." villeins who were released from the manorial organization by commutation of their service for a money payment took the name of their craft as part of their name, such as, for the manufacture of textiles, weaver, draper, comber, fuller, napper, cissor, tailor, textor; for metal-work, faber, ironmonger; for leatherwork, tanner; for woodwork, building and carpentry, carpenter, cooper, mason, pictor; for food-production, baker, pistor. iron, tin, lead, salt, and even coal were providing increasing numbers of people with a livelihood. many new boroughs were founded as grants of market rights by the king grew in number. these grants implied the advantage of the king's protection. in fact, one flooded town was replaced with a new town planned with square blocks. it was the charter which distinguished the borough community from the other communities existing in the country. it invested each borough with a distinct character. the privileges which the charter conferred were different in different places. it might give trading privileges: freedom from toll, a guild merchant, a right to hold a fair. it might give jurisdictional privileges: a right to hold court with greater or less franchises. it might give governmental privileges: freedom from the burden of attending the hundred and county courts, the return of writs, which meant the right to exclude the royal officials, the right to take the profits of the borough, paying for them a fixed sum to the crown or other lord of the borough, the right to elect their own officials rather than them being appointed by the king or a lord, and the right to provide for the government of the borough. it might give tenurial privileges: the power to make a will of lands, or freedom from the right of a lord to control his tenants' marriages. it might give procedural privileges: trial by combat is excluded, and trial by compurgation is secured and regulated. these medieval borough charters are very varied, and represent all stages of development and all grades of franchise. boroughs bought increasing rights and freedoms from their lord, who was usually the king. in the larger towns, where cathedrals and public building were built, there arose a system for teaching these technical skills and elaborate handicraft, wood, metal, stained glass, and stone work. a boy from the town would be bound over in apprenticeship to a particular craftsman, who supplied him with board and clothing. the craftsman might also employ men for just a day. these journeymen were not part of the craftsman's household as was the apprentice. after a few years of an apprenticeship, one became a journeyman and perfected his knowledge of his craft and its standards by seeing different methods and results in various towns. he was admitted as a master of his trade to a guild upon presenting an article of his work worthy of that guild's standard of workmanship: his "masterpiece". women, usually wives of brethren only, could be admitted. the tailors' guild and the skinners' guild are extant now. when guilds performed morality plays based on bible stories at town festivals, there was usually a tie between the bible story and the guild's craft. for instance, the story of the loaves and fishes would be performed by the bakers' or fishmongers' guild. the theme of the morality play was the fight of the seven cardinal virtues against the seven deadly sins for the human soul, a life- long battle. the number seven was thought to have sacred power; there were seven sacraments, seven churches in the biblical apocalypse, seven liberal arts and seven devilish arts. the seven sacraments were: baptism, confirmation, lord's supper, penance, orders, matrimony, and extreme unction. a borough was run by a mayor elected usually for life. by being members of a guild, merchant-traders and craftsmen acquired the legal status of burgesses and had the freedom of the borough. each guild occupied a certain ward of the town headed by an alderman. the town aldermen, who were unpaid, made up the town council, which advised the mayor. the mayor of london received pounds for hospitality, but in small towns, s. sufficed. often there were town police, bailiffs, beadles [messengers], a town crier, and a town clerk. london offices included recorder, prosecutor, common sergeant, and attorneys. in the center of town were the fine stone houses, a guildhall with a belfry-tower, and the marketplace - a square or broad street, where the town crier made public announcements with bell or horn. here too was the ducking stool for scandalmongers and the stocks which held offenders by their legs and perhaps their hands to be scorned and pelted by bystanders with, for instance, rotten fruit and filth. no longer were towns dominated by the local landholders. in london there were royal princes, great earls, barons, knights, and female representatives of the peerage (counted in ). there was a wall with four towers surrounding the white tower, and this castle was known as the tower of london. another wall and a moat were built around it and it has reached its final form. hovels, shops, and waste patches alternated with high walls and imposing gateways protecting mansions. the mansions had orchards, gardens, stables, brewhouses, bakeries, guardrooms, and chapels. london streets were paved with cobbles and sand. each citizen was to keep the street in front of his tenement in good repair. later, each alderman appointed four reputable men to repair and clean the streets for wages. the repair of bishopsgate was the responsibility of the bishop because he received one stick from every cart of firewood passing through it. rules as to tiled roofs were enforced. a ordinance required all taverns to close at curfew, an hour that fluctuated. prostitutes were expelled from the city because the street with their bawdy houses had become very noisy. women huckster-retailers, nurses, servants, and loose women were limited to wearing hoods furred with lambskin or rabbitskin and forbidden to wear hoods furred with vair or miniver [grey or white squirrel] in the guise of good ladies. an infirmary for the blind was founded by a mercer, who became its first prior. the london mayoral elections were hotly fought over until in , when the aldermen began to act with the aid of an elected council in each of the twenty-four wards, which decentralized the government of the city. each ward chose certain of its inhabitants to be councilors to the aldermen. this council was to be consulted by him and its advice to be followed. in , the aldermen for the first time included a fishmonger. the fishmongers were the only guild at this time, besides the weavers, which had acquired independent jurisdiction by the transfer of control of their weekly hall-mote from a public official to themselves. craftsmen began to take other public offices too. by the reign of edward ii, all the citizens were obliged to be enrolled among the trade- guilds. a great quarrel between the weaver's guild and the magistracy began the control of the city by the craft guilds or city companies. admission to freedom of the city [citizenship] was controlled by the citizens, who decided that no man of english birth, and especially no english merchant, who followed any specific mistery [french word for a calling or trade] or craft, was to be admitted to the freedom of the city except on the security of six reputable men of that mistery or craft. no longer could one simply purchase citizenship. apprentices had to finish their terms before such admission, and often could not afford the citizenship fee imposed on them. only freemen could sell wares in the city, a custom of at least two hundred years. as economic activity in london became more complex and on a larger scale in the s, some craftsmen were brought under the control of other crafts or merchants. the bakers fell under the control of the wholesale grain dealers; the weavers became pieceworkers for rich cloth merchants; the blade-makers and shearers were employed by cutlers; coppersmiths were controlled by girdlers; fullers were controlled by entrepreneurial dyers; and the painters, joiners, and lorimers were controlled by the saddlers. guilds moved their meeting places from churches, which were now too small, to guild halls. the controlling officers of the large guilds met at the guildhall, which became the seat of mayoral authority. london streets in existence by this time include cordwainer, silver, cannon (candlewick), and roper. lanes included ironmonger, soper, spurrier, lad (ladles), distaff, needles, mede, limeburner, and hosier. fighting among groups was common in london. there was a street fight on a large scale in between the saddlers and a coalition of joiners, painters, and lorimers (makers of metal work of saddles). much blood was shed in the street battle between the skinners and the fishmongers in . there was a city ordinance that no one except royal attendants, baronial valets, and city officials were to go about armed. disputes among neighbors that were brought to court included the use and upkeep of party walls, blocked and overflowing gutters, cesspits too close to a neighbor's property, noisy tenants, loss of light, and dangerous or overhanging structures. in , a goldsmith was chief assay-master of the king's mint and keeper of the exchange at london. the king gave the goldsmiths' company the right of assay [determination of the quantity of gold or silver in an object] and required that no vessels of gold or silver should leave the maker's hands until they had been tested by the wardens and stamped appropriately. in , goldsmith william farrington bought the soke of the ward containing the goldsmiths' shops. it remained in his family for years. a patent of empowered the guild to elect a properly qualified governing body to superintend its affairs, and reform subjects of just complaint. it also prescribed, as a safeguard against a prevailing fraud and abuse, that all members of the trade should have their standing in cheapside or in the king's exchange, and that no gold or silver should be manufactured for export, except that which had been bought at the exchange or of the trade openly. some prices in london were: large wooden bedstead s., a small bedstead s., a large chest for household items s., feather beds - s., a table s., a chair - d., cloth gown lined with fur - s., plain coats and overcoats - s., caps - d., a pair of pen- cases with inkhorn d., a skin of parchment d., sheets of paper d, a carcass of beef s., a pig s., a swan s., and a pheasant s. there was a problem with malefactors committing offenses in london and avoiding its jurisdiction by escaping to southwark across the thames. so southwark was given a royal charter which put it under the jurisdiction of london for peace and order matters and allowed london to appoint its tax collector. london forbade games being played because they had replaced practice in archery, which was necessary for defense. a royal inquiry into the state of the currency indicated much falsification and coin-clipping by the jews and others. about jews and many englishmen were found guilty and hanged. the rest of the jews, about , , were expelled in . this was popular with the public because of the abuses of usury. there had been outbreaks of violence directed at the jews since about . the king used italian bankers instead because he thought them more equitable in their dealings. the lepers were driven out of london in . exports and imports were no longer a tiny margin in an economy just above the subsistence level. exports were primarily raw wool and cloth, but also grain, butter, eggs, herring, hides, leather goods such as bottles and boots, embroideries, metalware, horseshoes, daggers, tin, coal, and lead. imported were wine, silk, timber, furs, rubies, emeralds, fruits, raisins, currents, pepper, ginger, cloves, rice, cordovan leather, pitch, hemp, spars, fine iron, short rods of steel, bow-staves of yew, tar, oil, salt, cotton (for candle-wicks), and alum (makes dyes hold). ships which transported them had one or two masts upon which sails could be furled, the recently invented rudder, and a carrying capacity of up to tuns [about one ton]. many duties of sheriffs and coroners were transferred to county landholders by commissions. in coastal counties, there were such commissions for supervising coastal defense and maintaining the beacons. each maritime county maintained a coast guard, which was under the command of a knight. ports had well-maintained harbors, quays, and streets. by there was an office of admiral of the fleet of the ships of the southern ports. women could inherit land in certain circumstances. some tenants holding land in chief of the king were women. regulation of trade became national instead of local. trade was relatively free; almost the only internal transportation tolls were petty portages and viages levied to recoup the expense of a bridge or road which had been built by private enterprise. responsibility for the coinage was transferred from the individual moneyers working in different boroughs to a central official who was to become master of the mint. the round half penny and farthing [ / penny] were created so that the penny needn't be cut into halves and quarters anymore. edward i called meetings of representatives from all social and geographic sectors of the nation at one parliament to determine taxes due to the crown. he declared that "what touches all, should be approved by all". he wanted taxes from the burgesses in the towns and the clergy's ecclesiastical property as well as from landholders. he argued to the clergy that if barons had to both fight and pay, they who could do no fighting must at least pay. when the clergy refused to pay, he put them outside the royal protection and threatened outlawry and confiscation of their lands. then they agreed to pay and to renounce all papal orders contrary to the king's authority. the model parliament of was composed of the three communities. the first were the lords, which included seven earls and forty-one barons. because of the increase of lesser barons due to a long national peace and prosperity, the lords attending were reduced in numbers and peerage became dependent not on land tenure, but on royal writ of summons. the great barons were chosen by the king and received a special summons in their own names to the council or parliament. others were called by a general summons. the second community was the clergy, represented by the two archbishops, bishops from each of eighteen dioceses, and sixty-seven abbots. the third community was the commons. it was composed of two knights elected by the suitors who were then present at the county court, two burgesses elected by principal burgesses of each borough, and two representatives from each city. the country knights had a natural affinity with the towns in part because their younger sons sought their occupation, wife, and estate there. also, great lords recruited younger brothers of yeoman families for servants and fighting men, who ultimately settled down as tradesmen in the towns. the country people and the town people also had a community of interest by both being encompassed by the county courts. the peasants were not represented in the county courts nor in parliament. one had to have land to be entitled to vote because the landowner had a stake in the country, a material security for his good behavior. parliaments without knights and burgesses still met with the king. but it was understood that no extraordinary tax could be levied without the knights and burgesses present. ordinary taxes could be arranged with individuals, estates, or communities. the lower clergy ceased to attend parliament and instead considered taxes to pay to the king during their national church convocations, which were held at the same time as parliament. for collection purposes, their diocesan synod was analogous to the count court. the higher clergy remained in parliament because they were feudal vassals of the king. edward's council was the highest tribunal. it comprised the chancellor, treasurer and other great officers of state, the justices of the three courts, the master or chief clerks of the chancery, and certain selected prelates and barons. the council assisted the king in considering petitions. most petitions to the king were private grievances of individuals, including people of no social rank, such as prisoners. other petitions were from communities and groups, such as religious houses, the two universities, boroughs, and counties. these groups sometimes formed alliances in a common cause. women sometimes petitioned. from , the petitions were placed in four stacks for examination by the king and council, by the chancery, by the exchequer, or by the justices. many hours were spent hearing and answering petitions. from , the petitions were presented to the king in full parliament. the king still exercised the power of legislation without a full parliament. he might in his council issue proclamations. the chief justices still had, as members of the king's council, a real voice in the making of laws. the king and his justices might, after a statute has been made, put an authoritative interpretation upon it. royal proclamations had the same force as statutes while the king lived; sometimes there were demands that certain proclamations be made perpetual by being embodied in statutes, e.g. fixing wages. there was no convention that agreement or even the presence of representatives was required for legislation. the idea that the present can bind the absent and that the majority of those present may outvote the minority was beginning to take hold. edward i's councilors and justices took an oath to give, expedite, and execute faithful counsel; to maintain, recover, increase, and prevent the diminution of, royal rights; to do justice, honestly and unsparingly; to join in no engagements which may present the councilor from fulfilling his promise; and to take no gifts in the administration of justice, save meat and drink for the day. these were in addition to other matters sworn to by the councilors. parliament soon was required to meet at least once a year at the great hall at westminster beside the royal palace. london paid its representatives s. per day for their attendance at parliament. from the time of edward ii, the counties paid their knight- representatives s. daily, and the boroughs paid their burgess- representatives s. daily. when it convened, the chancellor sat on the left and the archbishop of canterbury on the right of the king. just below and in front of the king his council sits on wool sacks brought in for their comfort from wool stored nearby. it answers questions. behind them on the wool sacks sit the justices, who may be called upon to give legal advice, e.g. in framing statutes. then come the spiritual and lay barons, then the knights, and lastly the elected burgesses and citizens. lawmaking is now a function of parliament, of which the king's council is a part, instead of a function of the king with his council and justices. the common people now had a voice in law-making, though legislation could be passed without their consent. the first legislation proposed by the commons was alteration of the forest laws governing the royal pleasure parks. such a statute was passed in a bargain for taxes of a percentage of all movables, which were mostly foodstuffs and animals. the king offered to give up the royal right to tax merchandise for a new tax: customs on exports. the barons and knights of the county agreed to pay an th, the burgesses, a th, and the clergy a th on their other movables. in time, several boroughs sought to be included in the county representation so they could pay the lower rate. this new system of taxation began the decline of the imposition of feudal aids, knights' fees, scutages, carucage, and tallage, which had been negotiated by the exchequer with the reeves of each town, the sheriff and county courts of each county, and the bishops of each diocese. the staple [depot or mart, from the french "estaple"] system began when the export of wool had increased and parliament initiated customs duties of s. d. on every sack of wool, woolfells [sheepskin with wool still on it], or skins exported in . these goods had to be assessed and collected at certain designated ports. certain large wool merchants, the merchants of the staple, were allowed to have a monopoly on the purchase and export of wool. imports of wine were taxed as tunnage as before, that is there was a royal right to take from each wine ship one cask for every ten at the price of s. per cask. in , edward i confirmed the magna carta and other items. judgments contrary to magna carta were nullified. the documents were to be read in cathedral churches as grants of edward and all violators were to be excommunicated. he also agreed not to impose taxes without the consent of parliament after baronial pressure had forced him to retreat from trying to increase, for a war in france, the customs tax on every exported sack of wool to s. from the s. d. per sack it had been since . the customs tax was finally fixed at s. for every sack of wool, s. for each tun [casket] of wine, and d. for every pound's worth of other goods. the "tenths and fifteenths" tax levied on income from movables or chattels became regular every year. edward also confirmed the forest charter, which called for its earlier boundaries. and he agreed not to impound any grain or wool or and like against the will of the owners, as had been done before to collect taxes. also, the special prises or requisitions of goods for national emergency were not to be a precedent. lastly, he agreed not to impose penalties on two earls and their supporters for refusing to serve in the war in france when the king did not go. from , statutes were recorded in a statute roll as they were enacted. by the end of the s, the king's wardrobe, where confidential matters such as military affairs were discussed in his bedroom, became a department of state with the king's privy seal. the keeper of the privy seal was established as a new office by edward i in . the wardrobe paid and provisioned the knights, squires, and sergeants of the king and was composed mostly of civil servants. it traveled with the king. the crown's treasure, plate, tents, hangings, beds, cooking-utensils, wine, and legal and financial rolls were carried on pack horses or in two-wheeled carts drawn by oxen, donkeys, or dogs. the people in the entourage rode horses or walked. the other two specialized administrative bodies were the exchequer, which received most of the royal revenue and kept accounts at westminster, and the chancery, which wrote royal writs, charters, and letters, and kept records. the chief functions of administration in the s were performed by the council, chancery, wardrobe, chamber [room off wardrobe for dressing and for storage], and exchequer. many of the chancellors had come from the wardrobe and chamber. in time, the chancellor ceased to be a part of the king's personal retinue and to follow the court. the chancery became primarily a department of central administration rather than a secretarieat and record-keeping part of the royal household. the king used a privy seal to issue directives to the chancery. edward iii made some merchants earls and appointed them to be his ministers. he did not summon anyone to his council who did not have the confidence of the magnates [barons, earls, bishops, and abbots]. there was a recoinage due to debasement of the old coinage. this increased the number of coins in circulation. the price of wheat went from about s. in to about s. per quarter in . also the price of an ox went from s. to s. then there were broad movements of prices, within which there were wide fluctuations, largely due to the state of the harvest. from to , there was runaway inflation. in some places, both grain and livestock prices almost doubled between and . wheat prices peaked at s. d. a quarter in the famine year of . in , prices dropped and remained low for twenty years. the poor were hurt by high prices and the lords of the manors were hurt by low prices. as before, inadequate care and ignorance of nutrition caused many infant deaths. accidents and disease were so prevalent that death was always near and life insecure. many women died in childbirth. in the s, there were extremes of fashion in men's and women's clothing including tight garments, pendant sleeves down to the ground, coats so short they didn't reach the hips or so long they reached the heels, hoods so small they couldn't cover the head, and shoes with long curved peaks like claws at the toes. both men and women wore belts low on the hips. the skirt of a lady's tunic was fuller and the bodice more closely fitted than before. her hair was usually elaborately done up, e.g. with long curls or curled braids on either side of the face. a jeweled circlet was often worn around her head. ladies wore on their arms or belts, cloth handbags, which usually contained toiletries, such as combs made of ivory, horn, bone, or wood, and perhaps a little book of devotions. a man wore a knife and a bag on his belt. some women painted their faces and/or colored their hair. there were hand- held glass mirrors. some people kept dogs purely as pets. there was a great development of heraldic splendor with for instance, crests, coat-armor, badges, pennons [long, triangular flag], and helmets. they descended through families. not only was it a mark of service to wear the badge of a lord, but lords wore each other's badges by way of compliment. edward i always sought the agreement of parliament before assembling an army or taking actions of war, and parliamentary consent came to be expected for such. he completed the conquest and annexation of wales in . the feudal army was summoned for the last time in the year war with france, which began in . in it the english longbow was used to pierce french knights' armor. there had been much competition between the strength of arrows to pierce and the heaviness of armor to resist. guns and cannon with gunpowder were introduced in . a system to raise an army by contract was developed. contracts were made with nobles, knights, or esquires who undertook to enlist an agreed number of armored men-at-arms and archers, who were paid wages. the king provided transport for each contractor and his retinue, baggage, and horses. the title of "knight" now resumed its military character as well as being a social rank. after edward i died in , there was a period of general lawlessness and contests for power between earls and barons and the irresponsible king edward ii, who was not a warrior king. he eventually was assassinated. also in , parliament required the king to obtain its consent for any exchange or alteration of the currency. by , the guilds of london had become so powerful that they extracted a charter from the king that to be a citizen of london one had to be a member of a guild. by , scholars, the nobility, and the clergy had reading eyeglasses, which had been invented in italy, probably by the glass blowers. italy was famous for its glasswork. the first eyeglasses were fabricated by pouring molten glass into curved molds. the actual shape was difficult to control because thermal expansion and contraction resulted in bubbles and other optical imperfections. as of , importing foreign cloth or fur, except for use by the king's family, was prohibited, as was the export of unwoven wool. later, this was relaxed and a customs tax of % was imposed on wool exported. foreign cloth-workers were allowed by statute to come to live in the nation, be granted franchises, and be in the king's protection. but no cloth was to be exported until it was fulled. during the reign of edward iii, flanders weavers were encouraged to come to england to teach the english how to weave and finish fine cloth. a cloth industry grew with all the manufacturing processes under the supervision of one capitalist manufacturer, who set up his enterprise in the country to avoid the regulations of the towns. the best places were hilly areas where there were many streams and good pasture for flocks of sheep. he hired shearers to cut the nap as short as possible to give a smooth surface, then spinsters to card and spin the wool in their country cottages, then weavers, and then fullers and dyers to come to fulling mills established near streams for their waterpower. fulling became mechanized as heavy wooden hammers run by water- power replaced feet trampling the cloth covered with soap or fuller's clay. the shaft loom was a technological advance in weaving. this loom was horizontal and its frames, which controlled the lifting of the warp threads, could each be raised by a foot treadle. this left both hands free to throw and catch the shuttle attached to the weft thread from side to side through the warp. also many more weaving patterns became possible through the use of different thread configurations on the frames. in , the commons forced king edward iii and council to approve their petition when parliament was still in session so that they would draft the legislation in true accordance with the petition. this had not been done when drafting had been done after parliament ended, when the phrase "saving the prerogatives of the king" was often added. also the lords and commons consulted each other and joined in petitions. but they usually stated their conclusions to the king separately. it was considered a burden rather than a privilege to attend parliament and elections for such were not often contested. they were conducted according to local custom until . in , the commons voted a tax of / th on moveables for three years with the proviso that it be spent only on the war against scotland. this began the practice of appropriation of funds. in , began the practice of appointing treasurers of the subsidies to account to parliament for both receipts and disbursements. alien merchants wree under the king's special protection. in return for paying extra import and export duties, edward iii gave alien merchants full rights of trade, travel, and residence in england free of all local tolls and restrictions, and guaranteed a fair hearing of their commercial and criminal cases in special pie powder (after french "pie poudrous" or dusty feet) courts at fairs. - the law - edward i remodeled the law in response to grievances and to problems which came up in the courts. the changes improved the efficiency of justice and served to accommodate it to the changing circumstances of the social system. these statutes were: "no man by force of arms, malice or menacing shall disturb anyone in making free election [of sheriffs, coroners, conservators of the peace by freeholders of the county]." "no city, borough, town, nor man shall be amerced without reasonable cause and according to the severity of his trespass. that is, every freeman saving his freehold, a merchant saving his merchandise, a villein saving his waynage [implements of agriculture], and that by his peers." no distress shall be taken of ploughing-cattle or sheep. young salmon shall not be taken from waters in the spring. no loan shall be made for interest. if an heir who is a minor is married off without the consent of the guardian, the value of the marriage will be lost and the wrongdoer imprisoned. if anyone marries off an heir over years of age without the consent of the guardian, the guardian shall have double the value of the marriage. moreover, anyone who has withdrawn a marriage shall pay the full value thereof to the guardian for the trespass and make amends to the king. and if a lord refuses to marry off a female heir of full age and keep her unmarried because he covets the land, then he shall not have her lands more than two years after she reaches full age, at which time she can recover her inheritance without giving anything for the wardship or her marriage. however, if she maliciously refuses to be married by her lord, he may hold her land and inheritance until she is the age of a male heir, that is, years old and further until he has taken the value of the marriage. aid to make one's son a knight or marry off his daughter of a whole knight's fee shall be taken s., and s.[yearly income from] land held in socage s. [ %], and of more, more; and of less, less; after the rate. and none shall levy such aid to make his son a knight until his son is years old, nor to marry his daughter until she is seven year old. a conveyance of land which is the inheritance of a minor child by his guardian or lord to another is void. dower shall not abate because the widow has received dower of another man unless part of the first dower received was of the same tenant and in the same town. but a woman who leaves her husband for another man is barred from dower. a tenant for a term of years who has let land from a landlord shall not let it lie waste, nor shall a landlord attempt to oust a tenant for a term of years by fictitious recoveries. when two or more hold wood, turfland, or fishing or other such thing in common, wherein none knows his several, and one does waste against the minds of the others, he may be sued. lands which are given to a man and his wife upon condition that if they die without heirs, the land shall revert to the donor or his heir, may not be alienated to defeat this condition. if a man takes land in marriage with a wife, and she dies before him, the land will revert to the donor or his heir, unless the couple has a child, in which case the husband will have the land by the courtesy of the nation for his life before it reverts to the donor or his heir. the ecclesiastical law had a doctrine for women-covert, i.e. women under the protection or coverture of a husband. it held that chattels of a woman who married vested in her husband, but he could not dispose of them by will. her jewelry, but not her apparel, could go to his creditors if his assets didn't cover his debts. if she was a merchant when she married, she could still sell her goods in the open market. the husband also had the right to the rents and profits from his wife's real estate, but not the real estate itself, unless by the birth of a child he became tenant for life by courtesy. only the father, but not the mother had authority over their children. a father had a right to his child's services, and could sue a third party for abducting, enticing away, or injuring the child, just as he could for his servants. a husband was liable for the debts of his wife, even if incurred before the marriage. he was answerable for her torts and trespasses, except for battery. for this reason, he was allowed to chastise her, restrain her liberty for gross misbehavior, and punish her by beating for some misdemeanors. but the courts would protect her from death, serious bodily harm, or his failure to supply her the necessities of life. promises under oath were not recognized for married women. a conveyance or agreement of a married woman was void. these principles held only if she was under the protection of her husband, i.e. a woman-covert, and not if they lived separately, for instance if he went to sea. if separated, she had a right to alimony from him to maintain herself. a free tenant may alienate his land freely, but if the alienation was for an estate in fee simple [to a man and his heirs], the person acquiring the land would hold of the land's lord and not of the person alienating the land. (this halted the growth of subinfeudation and caused services as well as incidents of aids, relief, escheat, wardship, and marriage to go directly to the chief lord. it also advantaged the crown as overlord, which then acquired more direct tenants.) one may create an estate which will descend in unbroken succession down the line of inheritance prescribed in the original gift as long as that line should last, instead of descending to all heirs. this was called a fee simple conditional holding of land. the successive occupants might draw the rents and cut the wood, but on the death of each, his heir would take possession of an unencumbered interest, unfettered by any liability for the debt of his ancestor or by any disposition made by him during his lifetime e.g. a wife's estate in dower or a husband's estate in courtesy. if there was no issue, it reverted to the original donor. (this curtailed the advantage of tenants of the greater barons who profited by increased wardships and reliefs from subinfeudation from subdivision and better cultivation of their land while still paying the greater barons fixed sums. this statute that protected reversionary estates incidentally established a system of entails. this new manner of holding land: "fee tail", is in addition to the concepts of land held in fee simple (i.e. with no subdivisions) and land held for life. no grantee or his heirs could alienate the land held in fee tail. the donor could give directions that the land could remain to another person rather than reverting to himself. (interests in remainder or reversion of estates in land replace the lord's tenurial right to succeed to land by escheat if his tenant dies without heirs.) in kent, all men are free and may give or sell their lands without permission of their lords, as before the conquest. (since kent was nearest the continent, money flowed between england and the continent through kent. so kent never developed a manorial system of land holding, but evolved from a system of clans and independent villages directly into a commercial system. anyone disseising another whereby he also robs him or uses force and arms in the disseisin shall be imprisoned and fined. the plaintiff shall recover seisin and damages. "all must be ready at the command and summons of sheriffs, and at the cry of the country, to sue and arrest felons as necessary as well within franchise as without." otherwise, he shall be fined. a lord defaulting shall lose his franchise to the king. a bailiff defaulting shall be imprisoned a year as well as fined, or be imprisoned two years if he cannot pay the fine. a sheriff, coroner, or any other bailiff who conceals a felony will be imprisoned for a year and pay a fine, or be imprisoned for three years if he cannot pay the fine. villeins must report felons, pursue felons, serve in the watch, and clear growth of concealing underwood from roads. they must join the military to fight on the borders when called. desertion from the army is punishable. accessories to a crime shall not be declared outlaw before the principal is proven guilty. (this made uniform the practice of the various counties.) only those imprisoned for the smaller offenses of a single incidence of petty larceny, receipt of felons, or accessory to a felony, or some other trespass not punishable by life or limb shall be let out by sufficient surety. prisoners who were outlawed or escaped from prison or are notorious thieves or were imprisoned for felonious house burning, passing false money, counterfeiting the king's seal, treason touching the king himself, or other major offenses or have been excommunicated by the church may not be released. killing in self-defense and by mischance shall be pardoned from the king's indictment. killing by a child or a person of unsound mind shall be pardoned from the king's indictment. (but a private accuser can still sue.) any man who ravishes [abducts] any woman without her consent or by force shall have the criminal penalty of loss of life or limb. (the criminal penalty used to be just two years in prison.) trespasses in parks or ponds shall be punished by imprisonment for three years and a fine as well as paying damages to the wronged person. after his imprisonment, he shall find a surety or leave the nation. "forasmuch as there have been often times found in the country devisors of tales, where discord, or occasion of discord, has many times arisen between the king and his people, or great men of this realm; for the damage that has and may thereof ensue, it is commanded, that from henceforth none be so hardy to tell or publish any false news or tales, whereby discord or occasion of discord or slander may grow between the king and his people, or the great men of the realm." anyone doing so shall be imprisoned until he brings into the court the first author of the tale. a system of registration and enforcement of commercial agreements was established by statute. merchants could obtain a writing of a debt sealed by the debtor and authenticated by royal seal or a seal of a mayor of certain towns, and kept by the creditor. failure to pay a such a debt was punishable by imprisonment and, after three months, the selling of borough tenements and chattels and of county lands. during the three months, the merchant held this property in a new tenure of "statute merchant". (prior to this, it was difficult for a foreign merchant to collect a debt because he could not appear in court which did not recognize him as one of its proper "suitors" or constituents, so he had to trust a local attorney. also, the remedy was inadequate because the history of the law of debt was based on debt as a substitute for the blood feud, so that failure to pay meant slavery or death. also a debtor's land was protected by feudal custom, which was contrary to the idea of imposing a new tenant on a lord.) "in no city, borough, town, market, or fair shall a person of the realm be distrained for a debt for which he is not the debtor or pledge." anyone making those passing with goods through their jurisdiction answer to them in excess of their jurisdiction shall be grievously amerced to the king. no market town shall take an outrageous toll contrary to the common custom of the nation. since good sterling money has been counterfeited with base and false metal outside the nation and then brought in, foreigners found in the nation's ports with this false money shall forfeit their lives. anyone bringing money into the nation must have it examined at his port of entry. payments of money shall be made only by coin of the appropriate weight delivered by the warden of the exchange and marked with the king's mark. (a currency exchange was established at dover for the exchange of foreign currency for english sterling.) the silver in craftwork must be sterling and marked with the leopard's head. the gold in craftwork must meet the standard of the touch of paris. the assize of bread and ale had been and was enforced locally by local inspectors. now, the crown appointed royal officers for the gauge of wines and measurement of cloths. edicts disallowed middlemen from raising prices against consumers by such practices as forestalling [intercepting goods before they reached the market and then reselling them] or engrossing [buying a large supply of a commodity to drive up the price] and price regulation was attempted. for instance, prices were set for poultry and lamb, in a period of plenty. maximum prices were set for cattle, pigs, sheep, poultry, and eggs in , but these prices were hard to enforce. in london examples of prices set are: best hen d. q., best wild goose d., best hare d., best kid d., best lamb d., best fresh herrings for d., best pickled herrings for d., best haddock d., best fresh salmon s. freemen may drive their swine through the king's demesne forest to feed in their own woods or elsewhere. no man shall lose his life or limb for killing deer in the forest, but instead shall be grievously fined or imprisoned for a year. the forest charter allowed a man to cut down and take wood from his own woods in the king's forest to repair his house, fences, and hedges. he may also enclose his woods in the king's forest with fences and hedges to grow new trees and keep cattle and beasts therefrom. after seven years growth of these new trees, he may cut them down for sale with the king's permission. each borough has its own civil and criminal ordinances and police jurisdiction. borough courts tended to deal with more laws than other local courts because of the borough's denser populations, which were composed of merchants, manufacturers, and traders, as well as those engaged in agriculture. only borough courts have jurisdiction over fairs. in some boroughs the villein who resides for a year and a day becomes free. there are special ordinances relating to apprentices. there are sometimes ordinances against enticing away servants bound by agreement to serve another. the wife who is a trader is regarded in many places as a feme sole [single woman rather than a feme covert [woman-covert], who was under the protection of a husband]. there may be special ordinances as to the liability of masters for the acts of their apprentices and agents, or as to brokers, debt, or earnest money binding a bargain. the criminal and police jurisdiction in the borough was organized upon the same model as in the country at large, and was controlled by the king's courts upon similar principles, though there are some survivals of old rules, such as mention of the bot and the wer. the crimes committed are similar to those of the country, such as violence, breaches of the assize of bread and beer, stirring up suits before the ecclesiastical courts, digging up or obstructing the highway, not being enrolled in a tithing, encroachments upon or obstructions of rights of common. the most striking difference with the country at large are the ordinances on the repair or demolition of buildings, encroachments on another's building, fires, and nuisances. specimens of other characteristic urban disputes are: selling bad food, using bad materials, unskillful or careless workmanship, fraudulent weights and measures, fraud in buying and selling, forestalling or regrating [buying in one market to resell in another market], acting in a way likely to endanger the liberties of the borough, usury, trading without being a citizen, assisting other unlicensed persons to trade, unlawfully forming a guild, complaints against various guilds in which trade might be organized. since the ordinances were always liable to be called in question before the king's courts, they tended to become uniform and in harmony with the principles of the common law. also, trading between boroughs kept them knowledgeable about each other's customs and conditions for trade, which then tended to standardize. boroughs often had seals to prove communal consent and tended to act as a corporate body. borough ordinances often include arson such as this one: "and if a street be set on fire by any one, his body shall be attached and cast into the midst of the fire." robbery by the miller was specially treated by an ordinance that "and if the miller be attainted [found guilty] of robbery of the grain or of the flour to the amount of d., he shall be hanged from the beam in his mill." in london, an ordinance prescribed for bakers for the first offense of making false bread a forfeiture of that bread. for the second offense was prescribed imprisonment, and for the third offense placement in the pillory. a london ordinance for millers who caused bread to be false prescribed for them to be carried in a tumbrel cart through certain streets, exposed to the derision of the people. by statute, no one may make a gift or alienation of land to the church. an attempt to do so will cause the land to escheat to the lord, or in his default, to the king. religious houses may not alienate land given to them by the king or other patrons because such gifts were for the sake of someone's soul. an attempt to do so will cause the land to revert to the donor or his heir. if the church did not say the prayers or do the other actions for which land was given to it, the land will revert to the donor or his heir. land may not be alienated to religious bodies in such a way that it would cease to render its due service to the king. (the church never died, never married, and never had children.) the church shall send no money out of the nation. (this statute of mortmain was neutralized by collusive lawsuits in which the intended grantor would sue the intended grantee claiming superior title and then would default, surrendering the land to the intended grantee by court judgment.) "concerning wrecks of the sea, where a man, a dog, or a cat escape alive out of the ship, that such ship nor barge nor anything within them shall be deemed wreck, but the goods shall be saved and kept by view of the sheriff, coroner, or the king's bailiff". if anyone proves the goods were his within a year and a day, they shall be restored to him without delay. otherwise, they shall be kept by the king. "and where wreck belongs to one other than the king, he shall have it in like manner". if he does otherwise, he shall be imprisoned and pay damages and fine. some statutes applied only to kent county, which had a unique position between london and the continent. one could sell or give away his land without the consent of one's lord. the services of the land, however, could only be sold to the chief lord. inheritance of land was to all sons by equal portions, and if there were no sons, then to all daughters in equal portions. the eldest brother has his choice of portion, then the next oldest, etc. the goods of a deceased person were divided into three parts after his funeral expenses and debts were paid. one third went to the surviving spouse. one third went to the deceased's sons and daughters. one third could be disposed by will of the decedent. if there were no children, one half went to the spouse and one half went according to will. if an heir was under years old, his next of kin to whom inheritance could not descend was to be his guardian. a wife who remarried or bore a child lost her dower land. a husband lost his dower if he remarried. if a tenant withheld rent or services, his lord could seek award of court to find distress on his tenement and if he could find none, he could take the tenement for a year and a day in his hands without manuring it. it the tenant paid up in this time, he got the tenement back. if he didn't within a year and a day, however, the lord could manure the land. a felon forfeited his life and his goods, but not his lands or tenements. a wife of a felon had the dower of one half or her husband's lands and tenements. the common law recognized the tort of false imprisonment if a man arrested as a felon, a person who was not a felon. - judicial procedure - the writ of quo warranto [by what right] is created, by which all landholders exercising jurisdictions must bring their ancestors' charters before a traveling justice for the common pleas for examination and interpretation as to whether they were going beyond their charters and infringing upon the jurisdiction of the royal court. as a result, many manor courts were confined to manorial matters and could no longer view frankpledge or hear criminal cases, which were reserved for the royal courts. in the manor courts which retained criminal jurisdiction, there was a reassertion of the obligation to have present a royal coroner, whose duty it was to see that royal rights were not infringed and that the goods of felons were given to the crown and not kept by the lords. the supreme court was the king and his council in parliament. it heard the most important causes, important because they concern the king, or because they concern very great men (e.g.treason), or because they involve grave questions of public law, or because they are unprecedented. it has large, indefinite powers and provides new remedies for new wrongs. the office of great justiciar disappears and the chancellor becomes the head of the council. after the council were the royal courts of the king's bench, common pleas, and the exchequer, which had become separate, each with its own justices and records. the court of common pleas had its own chief justice and usually met at westminster. this disadvantaged the small farmer, who would have to travel to westminster to present a case. the king's council maintained a close connection with the court of the king's bench, which heard criminal cases and appeals from the court of common pleas. it traveled with the king. there were many trespass cases so heard by it in the reign of edward i. the king's council did a great deal of justice, for the more part criminal justice. it was supported by the populace because it dealt promptly and summarily with rebellion or some scandalous acquittal of a notorious criminal by bribed or partial jurors, and thereby prevented anarchy. its procedure was to send for the accused and compel him to answer upon oath written interrogatories. affidavits were then sworn upon both sides. with written depositions before them, the lords of the council, without any jury, acquit or convict. fines and imprisonments were meted out to rioters, conspirators, bribers, and perjured jurors. no loss of life or limb occurred because there had been no jury. in criminal cases, witnesses acquainted with particular facts were added to the general assize of twelve men from each hundred and four men from each town. the assize then bifurcated into the grand jury of twelve to twenty-four men and the petty jury or jury of verdict of twelve men, which replaced ordeal, compurgation, and trial by combat as the method of finding the truth. the men of the petty jury as well as those of the grand jury were expected to know or to acquaint themselves with the facts of the cases. the men of the petty jury tended to be the same men who were on the grand jury. felony included such crimes as homicide, arson, rape, robbery, burglary, and larceny. murder still meant secret homicide. burglary was an offense committed in times of peace and consisted of breaking into churches, houses, and into the walls and gates of villages and boroughs. these six offenses could be prosecuted by indictment or private accusation by an individual. the penalties involved loss of life or limb or outlawry; a felon's goods were confiscated by the crown and his land was forfeited to the crown for a year and a day, after which it escheated to the felon's lord. the peace of the king now did not die with the king, but renewed automatically without an interval before the inauguration of a new king. notorious felons who would not consent or put themselves on inquests for felonies with which they were charged at royal courts were put in strong and hard imprisonment to persuade them to accept trial by assize. this inducement progressed into being loaded with heavy chains and placed on the ground in the worst part of the prison and being fed a only little water one day and a little bread the next. sometimes pieces of iron or stones were placed one another onto their prone bodies to persuade them to plead. this then developed into being loaded with as much iron as could be borne, and finally into being pressed to death ["peine forte et dure"]. many of these men chose to die by this pressing so that their families could inherit their property, which would have been forfeited if they had been convicted of serious crimes. the most common cases in the court of common pleas were "detinue" [wrongful detention of a good or chattel which had been loaned, rented, or left for safe-keeping with a "bailee", but belonged to the plaintiff], "debt" [for money due from a sale, for money loaned, for rent upon a lease for years, from a surety, promised in a sealed document, or due to arbitrators to whom a dispute had been submitted] and "account" [e.g. against bailiffs of manors, a guardian in socage, and partners]. it also heard estovers of wood, profit by gathering nuts, acorns, and other fruits in wood, corody [allowance of food], yearly delivery of grain, toll, tunnage, passage, keeping of parks, woods, forests, chases, warrens, gates, and other bailiwicks, and offices in fee. the itinerant justices gradually ceased to perform administrative duties on their journeys because landed society had objected to their intrusiveness. edward i substituted regular visitations of justices of assize for the irregular journeys of the itinerant justices. each one of four circuits had two justices of assize. from about , these justices of assize heard cases of gaol delivery. their jurisdiction expanded to include serious criminal cases and breach of the king's peace. breaches of the forest charter laws were determined by justices of the king's forest, parks, and chases, along with men of assize. coroners' inquest procedures were delineated by statute and included describing in detail in the coroner's rolls every wound of a dead body, how many may be culpable, and people claiming to have found treasure who might be suspects. the precedent for punishment for treason was established by the conviction of a knight, david ab gruffydd, who had turned traitor to the welsh enemy, after fighting with edward and being rewarded with land, during the conquest of wales. he had plotted to kill the king. he was found guilty of treason by parliament and condemned to be dragged at the heels of horses for being a traitor to his knightly vows, hanged by the neck for his murders, cut down before consciousness left him to have his entrails cut out for committing his crimes during the holy week of easter, and his head cut off and his body divided into four parts for plotting against the king's life. the head was placed on the tower of london and his body sections were placed in public view at various other locations in england. this came to be known as "hanging, drawing, and quartering". prior to this the penalty had been imprisonment, usually followed by ransom. trial by combat is now limited to certain claims of enfeoffment of large land holding and is barred for land held in socage, burgage, or by marriage. assize is the usual manner of trial, but compurgation remains in the borough court long after it becomes obsolete in the royal courts. defendants no longer request assizes but are automatically put to them. numerous statutes protect the integrity of the courts and king's offices by double and treble damages and imprisonment for offenses such as bribery, false informers, conspiracy to falsely move or maintain pleas, champerty [covenant between a litigant and another for the other to have a part or profit in the award in return for maintaining the suit], conflict of interest by court officers taking part in a quarrel pending in court or working any fraud whereby common right may be delayed or disturbed. there had been many abuses, the most common of which was extortion by sheriffs, who gaoled people without cause to make them pay to be released. the prohibition of maintenance of a quarrel of a party in court by a non-party was extended in to all persons, including the king's councilors and ministers, and great men, e.g. by sending letters. in , this prohibition specifically included prelates, earls, barons taking in hand quarrels other than their own, or maintaining them for gift, promise, amity, favor, doubt, or fear, in disturbance of law and hindrance of right. the reason given was that there had been persons disinherited, delayed or disturbed in their rights, and not guilty persons convicted or otherwise oppressed. all great men were required to put out of their service all maintainers who had been retained, and void their fees and robes, without giving them aid, favor, or comfort. this law was not obeyed. the king reserved to himself and his council in its judicial capacity the correction of all breaches of the law which the lower courts had failed to remedy, whether from weakness, partiality, corruption, or jury timidity, and especially when the powerful barons defied the courts. the chancery also sought to address causes which were impeded in their regular course, which often involved assaults, batteries, and forcible dispossessions. disputes within the royal household were administered by the king's steward. he received and determined complaints about acts or breaches of the peace within twelve miles around the king's person or "verge". he was assisted by the marshall in the "court of the hall" and by the clerk of the market when imposing fines for trading regulation violations in the "court of the market". ecclesiastical courts were successful in their competition with the secular courts for jurisdiction over testamentary matters [concerning wills] and succession [no will] to chattels. there were local courts of the vill, borough, manor, hundred, county, sheriff, escheator, and royal bailiff, with overlapping jurisdictions. the county court in its full session, that is, as it attended the itinerant justices on their visitation, contained the archbishops, bishops, priors, earls, barons, knights, and freeholders, and from each township four men and the reeve, and from each borough twelve burgesses. it was still the folkmote, the general assembly of the people. in , suitors who could not spend s. a year within their county were not required to attend their county court. the most common plea in the hundred court was trespass. it also heard issues concerning services arising out of land, detention of chattels, small debts, wounding or maiming of animals, and personal assaults and brawls not amounting to felony. it met every three weeks. the sheriff held his turn twice a year and viewed frankpledge once a year. when edward i came to the throne, over half of the approximately hundred courts had gone under the jurisdiction of a private lord owing to royal charter, prescriptive right, and usurpation. the sheriff's powers in these hundreds varied. in some, the sheriff had no right of entry. in the manor courts, actions of debt, detinue, and covenant were frequent. sometimes there are questions of a breach of warranty of title in agreements of sale of land. accusations of defamation were frequent; this offense could not be taken to the king's court, but it had been recognized as an offense in the anglo-saxon laws. in some cases, the damages caused are specifically stated. for instance, defamation of a lord's grain would cause other purchasers to forbear buying it. there are frequent cases of ordinary thefts, trespasses, and assaults. the courts did rough but substantial justice without distinction between concepts such as tort and contract. in fact, the action of covenant was the only form of agreement enforceable at common law. it required a writing under seal and awarded damages. their law was not technical, but elastic, and remedies could include injunctions, salary attachment, and performance of acts. the steward holding the manor court was often a lawyer. some pleas in the manors of the abbey of bec were: . hugh le pee in mercy (fine, d.) for concealing a sheep for half a year. pledges, simon of newmere, john of senholt . william ketelburn in mercy (fine, s. d.) for divers trespasses. pledge, henry ketelburn. . hugh derwin for pasture, d. richard hulle for divers trespasses, d. henry stanhard for pasture, d. . william derwin for a trespass, d.; pledge, william sperling. . hugh hall gives the lord d. that he may have the judgment of the court as to a tenement and two acres of land, which he demands as of right, so he says. and it being asserted that the said land is not free[hold] let the court say its say. and the court says that the tenement and one of the two acres are of servile condition and that the other acre is of free condition. the case is reserved for the lord's presence. pledge, john brian. . john palmer is put in seisin of his father's tenement and gives the lord s. d. as entry money. . william ketelburn gives the lord s. d. that he may be removed from the office of reeve. pledge, robert serjeant. . william frith for subtraction of work, d. john reginald for the same, d. john of senholt, d. william ketelburn, d. . for the common fine to be paid on s. andrew's day, s. . it is presented by the chief pledges that godfrey serjeant has made default; also that john le pee has unlawfully thrown up a bank; therefore let it be set to rights. . robert smith is put in seisin of his father's tenement and gives the lord four pounds for entry money. pledge, robert serjeant. . william ketelburn for a trespass, s. d. . william fleming gives four pounds for leave to contract [marriage] with widow susan. pledge, richard serjeant. . john mabely gives the lord s. to have the judgment of twelve men as to certain land whereof noah deforces him; pledges, richard smith, ralph bernard. the said jurors say that noah the fat has right; therefore etc. . agnes stampelove gives the lord s. for leave to come and go in the vill but to dwell outside the lord's land. pledge, richard smith. . godfrey tailor the younger for a trespass, s. . whereas godfrey tailor the younger has demanded against noah a farthing land, now the action is compromised in manner following:- -godfrey for himself and his heirs remises to the said noah and his heirs all right and claim which he has or can have in the said farthing land by reason of the gift made by his grandfather john tailor. . agnes mabely is put in seisin of a farthing land which her mother held, and gives the lord s. d. for entry money. pledges, noah, william askil. . the full court declares that in case any woman shall have altogether quitted the lord's domain and shall marry a freeman, she may return and recover whatever right and claim she has in any land; but if she shall be joined to a serf, then she cannot do this during the serf's lifetime, but after his death she may. . william alice's son is put in seisin of a bakehouse in the king's street, and shall keep up the house at his own cost and gives d. for entry money, and s. annual rent payable at three terms, viz. s. d. at martinmas, s. d. at lady day, s. d. at christmas. pledges, adam clerk, john deboneir. . john son of alma demands a cottage which henry fleming holds and gives the lord d. for the oath and recognition of men; pledge, richard jordan. the jurors say that henry fleming has the better right. . baldwin cobbler's son finds [as pledges] walter cobbler, roger of broadwater, robert linene, william frances, that notwithstanding his stay in london he will always make suit with his tithing and will at no time claim any liberty contrary to the lord's will and will come to the lord whenever the lord wills. . simon patrick gives the lord d. to have the judgment of the court as to a cottage of which the widow of geoffrey dogers deforces him; pledge, simon of strode. the said jurors say that the said simon has the better right. and the said simon remises and quit-claims all his right to his sister maud and her husband john horin, [who] gives the lord s. for entry money; pledges, simon patrick, john talk. . hugh wiking for not making suit at the lord's mill, d. . it was presented that william derwin and john derwin (fine, d.) committed a trespass against agnes dene, and the cry was raised, therefore etc. . hugh churchyard contracted [marriage] without the lord's leave; [fine] d. . let juliana forester be distrained for her default, also william moor. . john kulbel in mercy (fine, d.) for not producing gregory miller, and he is commanded to produce him at the next court. . hugh andrew's son gives the lord s. for leave to marry; pledge, robert serjeant. . juliana forester gives the lord d. in order that for the future no occasion may be taken against her for neglect of suit of court. . john franklain is put in seisin of his father's tenement and gives the lord s. for entry; pledge, robert serjeant. . henry cross gives the lord s. for license to marry; pledge, robert serjeant. . isabella warin gives the lord s. for leave to give her daughter mary in marriage; pledge, john serjeant. . it is presented by the whole township that ralph le war has disseised the lord of a moiety of a hedge, whereas it had often been adjudged by award of the court that the said hedge belongs as to one moiety to the lord and as to the other to ralph, and the said ralph claims and takes to his use the whole to the lord's damage etc. also they say that the said ralph holds overcolkescroft, which land by right is the lord's. . it is presented by unanimous verdict of the whole court that if anyone marries a woman who has right in any land according to the custom of the manor and is seised thereof by the will of the lord, and the said woman surrenders her right and her seisin into the hands of the lord and her husband receives that right and seisin from the hands of the lord, in such case the heirs of the woman are for ever barred from the said land and the said right remains to the husband and his heirs. therefore let william wood, whose case falls under this rule, hold his land in manner aforesaid. and for the making of this inquest the said william gives the lord s. d. . the tenements of lucy mill are to be seized into the lord's hands because of the adultery which she has committed and the bailiff is to answer for them. the chief pledges present that cristina daughter of richard maleville has married at london without the lord's licence; therefore let the said richard be distrained. he has made fine with d. also that alice berde has done the same; therefore let her be distrained. also that robert fountain has committed a trespass against william gery; therefore the said robert is in mercy; pledge, humfrey; fine, d. also that richard maleville has drawn blood from stephen gust; therefore he is in mercy; fine, s. . geoffrey coterel in mercy for a battery; fine, d.; pledge, adam serjeant. . geoffrey coterel for trespass in the hay; fine, d.; pledge, alan reaper. . hugh of senholt in mercy for trespass in the green wood; fine, d. . hugh wiking in mercy for delay in doing his works; fine, d. hugh churchyard for trespass in [cutting] thorns; fine, d. thomas gold in mercy for trespass in the wood; fine, d.; pledge, robert grinder. . william dun in mercy for subtraction of his works due in autumn; fine, s. avice isaac for the same, d.; hugh wiking for the same, d.; agnes rede in mercy for her daughter's trespass in the corn [grain], d. . walter ash in mercy for not making suit to the lord's mill; fine, d. hugh pinel in mercy for diverting a watercourse to the nuisance of the neighbours; fine, d.; pledge, robert fresel. . john dun in mercy for carrying off corn [grain] in the autumn; pledge, adam white. alan reaper gives the lord d. on account of a sheep which was lost while in his custody. . adam white in mercy for bad mowing; fine, d. hugh harding in mercy for the same; fine, d. . the chief pledges present that henry blackstone (fine, d.), hugh churchyard (fine, d.), walter ash (fine, d.), henry of locksbarow (fine, d.), avice isaac (fine, d.), richard matthew (fine, d.), hugh wiking (fine,--), ralph dene (fine, d.), john palmer (fine, d.), john coterel (fine, d.), john moor (fine, d.), john cubbel (fine, d.), hugh andrew (fine, d.), philip chapman (fine, d.), john fellow (fine, d.), robert bailiff (fine, d.), alice squire (fine, d.), john grately (fine,--), richard hull (fine, d.), osbert reaper (fine, d.), and robert cross (fine, d.), have broken the assize of beer. also that henry of senholt, henry brown, hugh hayward, richard moor, juliana woodward, alice harding, peronel street, eleanor mead make default. also that walter ash (fine,--), john wiking (fine,--), john smart (fine,--), and henry coterel have married themselves without the lord's licence; therefore let them be distrained to do the will of the lord. . alan reaper for the trespass of his foal; fine, d. . philip chapman in mercy for refusing his gage to the lord's bailiff; fine, d. . william ash in mercy for trespass in the growing crop; fine, d. . john iremonger in mercy for contempt; fine, d. . the chief pledges present that william of ripley (fine, d.), walter smith (no goods), maud of pasmere (fine, d.), have received [strangers] contrary to the assize; therefore they are in mercy. . maud widow of reginald of challow has sufficiently proved that a certain sheep valued at d. is hers, and binds herself to restore it or its price in case it shall be demanded from her within year and day; pledges, john iremonger and john robertd; and she gives the lord d. for [his] custody [of it]. the court of hustings in london is empowered to award landlords their tenements for which rent or services are in arrears if the landlord could not distrain enough tenant possessions to cover the arrearages. wills are proven in the court of husting, the oldest court in london, which went back to the times of edward the confessor. one such proven will is: "tour (john de la) - to robert his eldest son his capital messuage and wharf in the parish of berchingechurch near the land called 'berewardesland`. to agnes his wife his house called 'wyvelattestone', together with rents, reversions, etc. in the parish of s. dunstan towards the tower, for life; remainder to stephen his son. to peter and edmund his sons lands and rents in the parish of all hallows de berhyngechurch; remainders over in default of heirs. to agnes, wife of john le keu, fishmonger, a house situate in the same parish of berhyng, at a peppercorn [nominal] rent." the court of the mayor of london heard diverse cases, including disputes over goods, faulty or substandard goods, adulteration, selling food unfit for human consumption, enhancing the price of goods, using unlawful weighing beams, debts, theft, distraints, forgery, tavern brawling, bullying, and gambling. insulting or assaulting a city dignitary was a very serious crime; an attack on the mayor was once capitally punished. sacrilege, rape, and burglary were punished by death. apart from the death penalty, the punishment meted out the most was public exposure in the pillory, with some mark of ignominy slung round the neck. if the crime was selling bad food, it was burnt under the offender's nose. if it was sour wine, the offender was drenched in it. standing in the pillory for even one hour was very humiliating, and by the end of the day, it was known throughout the city. the offender's reputation was ruined. some men died in the pillory of shame and distress. a variation of the pillory was being dragged through the streets on a hurdle. prostitutes were carted through the streets in coarse rough cloth hoods, with penitential crosses in their hands. scolds were exposed in a "thewe" for women. in more serious cases, imprisonment for up to a year was added to the pillory. mutilation was rare, but there are cases of men losing their right hands for rescuing prisoners. the death penalty was usually by hanging. the following four london cases pertain to customs, bad grain, surgery, and apprenticeship, respectively. "john le paumer was summoned to answer richer de refham, sheriff, in a plea that, whereas the defendant and his society of bermen [carriers] in the city were sworn not to carry any wine, by land or water, for the use of citizens or others, without the sheriff's mark, nor lead nor cause it to be led, whereby the sheriff might be defrauded of his customs, nevertheless he caused four casks of wine belonging to ralph le mazun of westminster to be carried from the city of westminster without the sheriff's mark, thus defrauding the latter of his customs in contempt of the king etc. the defendant acknowledged the trespass. judgment that he remain in the custody of the sheriff till he satisfy the king and the court for offense." "walter atte belhaus, william atte belhous, robert le barber dwelling at ewelleshalle, john de lewes, gilbert le gras, john his son, roger le mortimer, william ballard atte hole, peter de sheperton, john brun and the wife of thomas the pelterer, stephen de haddeham, william de goryngg, margery de frydaiestrate, mariot, who dwells in the house of william de harwe, and william de hendone were attached to answer for forestalling all kinds of grain and exposing it, together with putrid grain, on the pavement, for sale by the bushel, through their men and women servants; and for buying their own grain from their own servants in deception of the people. the defendants denied that they were guilty and put themselves on their country. a jury of richard de hockeleye and others brought in a verdict of guilty, and the defendants were committed to prison til the next parliament." "peter the surgeon acknowledged himself bound to ralph de mortimer, by richard atte hill his attorney, in the sum of s., payable at certain terms, the said ralph undertaking to give peter a letter of acquittance [release from a debt]. this recognizance arose out of a covenant between them with regard to the effecting of a cure. both were amerced for coming to an agreement out of court. a precept was issued to summon all the surgeons of the city for friday, that an enquiry might be made as to whether the above peter was fitted to enjoy the profession of a surgeon." "thomas de kydemenstre, shoemaker, was summoned to answer william de beverlee, because he did not clothe, feed and instruct his apprentice thomas, william's son, but drove him away. the defendant said that the apprentice lent his master's goods to others and promised to restore them or their value, but went away against his wish; and he demanded a jury. subsequently, a jury of william de upton and others said the apprentice lent two pairs of shoes belonging to his master and was told to restore them, but, frightened by the beating which he received, ran away; further that the master did not feed and clothe his apprentice as he ought, being unable to do so, to the apprentice's damage d., but that he was now in a position to look after his apprentice. thereupon thomas de kydemenstre said he was willing to have the apprentice back and provide for him, and the father agreed. judgment that the master take back the apprentice and feed and instruct him, or that he repay to the father, the money paid to the latter, and that he pay the father the d. and be in mercy." a professional class of temporal attorneys whose business it is to appear on behalf of litigants is prominent in the nation. attorneys are now drawn from the knightly class of landed gentlemen, instead of ecclesiastical orders. since it was forbidden for ecclesiastics to act as advocates in the secular courts, those who left the clergy to become advocates adopted a close-fitting cap to hide their tonsures, which came to be called a "coif". the great litigation of the nation is conducted by a small group of men, as is indicated by the earliest year books of case decisions. they sit in court and will sometimes intervene as amicus curiae [friends of the court]. parliament refers difficult points of law to them as well as to the justices. these reports became so authoritative that they could be cited in the courts as precedent. groups of attorneys from the countryside who are appearing in london courts during term-time and living in temporary lodgings start to form guild-like fellowships and buy property where they dine and reside together, called the inns of court. they begin to think of themselves as belonging to a profession, with a feeling of responsibility for training the novices who sat in court to learn court procedures and attorney techniques. they invited these students to supper at the inns of court for the purpose of arguing about the day's cases. the inns of court evolved a scheme of legal education, which was oral and used disputations. thus they became educational institutions as well as clubs for practicing attorneys. the call to the bar of an inn was in effect a degree. to be an attorney one had to be educated and certified at the inns of court. they practice law full time. some are employed by the king. justices come to be recruited from among those who had passed their lives practicing law in court, instead of from the ecclesiastical orders. all attorneys were brought under the control of the justices. there are two types of attorney: one attorney appears in the place of his principal, who does not appear. the appointment of this attorney is an unusual and a solemn thing, only to be allowed on special grounds and with the proper formalities. for instance, a poor person may not be able to afford to travel to attend the royal court in person. the other one is the pleader-attorney, who accompanies his client to court and advocates his position with his knowledge of the law and his persuasiveness. in , the city of london made regulations for the admission of both types of attorneys to practice before the civic courts, and for their due control. in the king directed the justices to provide a certain number of attorneys and apprentices to follow the court, who should have the exclusive right of practicing before it. this begins the process which will make the attorney for legal business an "officer of the court" which has appointed him. - - - chapter - - - - the times: - - waves of the black death, named for the black spots on the body, swept over the nation. the black blotches were caused by extensive internal bleeding. the plague was carried in the blood of black rats and transmitted to humans by the bite of the rat flea, but this cause was unknown. the first wave of this plague, in , lasted for three years and desolated the nation by about one half the population in the towns and one third in the country. people tried to avoid the plague by flight. the agony and death of so many good people caused some to question their belief in god. also, it was hard to understand why priests who fled were less likely to die than priests who stayed with the dying to give them the last rites. legal and judicial, as well as other public business, ceased for two years, interrupted by the plague. thus begins a long period of disorganization, unrest, and social instability. customary ways were so upset that authority and tradition were no longer automatically accepted. fields lay waste and sheep and cattle wandered over the countryside. local courts could seldom be held. some monasteries in need of cash sold annuities to be paid in the form of food, drink, clothing, and lodging during the annuitant's life, and sometimes that of his widow also. guilds and rich men made contributions to the poor and ships with provisions were sent to various parts of the country for the relief of starving people. in london, many tradesmen and artisans formed parish fraternities which united people of all social levels and women on almost equal terms with men, in communal devotion and mutual support, such as help in resolving disputes, moral guidance, money when needed, and burial and masses. farm workers were so rare that they were able to demand wages at double or triple the pre-plague rate. the pre-plague had been d.- d. daily for masons, carpenters, plasterers, and tilers and d. for their laborers. these laborers could buy cheap loaves, gallons of ale, and a gallon of cheap wine or half a pair of shoes. prices did not go up nearly as much as wages. villeins relinquish their tenements, and deserted their manors, to get better wages elsewhere. they became nomadic, roaming from place to place, seeking day work for good wages where they could get it, and resorting to thievery on the highways or beggary where they could not. the robin hood legends were popular among them. in them, robin hood is pure outlaw and does not contribute money to the poor. nor does he court maid marion. they spread political songs among each other, such as: "to seek silver to the king, i my seed sold; wherefore my land lieth fallow and learneth to sleep. since they fetched my fair cattle in my fold; when i think of my old wealth, well nigh i weep. thus breedeth many beggars bold; and there wakeneth in the world dismay and woe, for as good is death anon as so for to toil." groups of armed men took lands, manors, goods, and women by force. the villeins agreed to assist each other in resisting by force their lords' efforts to return them to servitude. a statute of laborers passed in for wages to be set at the pre-plague rates was ineffectual. justices became afraid to administer the law. villeins, free peasants, and craftsmen joined together and learned to use the tactics of association and strikes against their employers. the office of justice of the peace was created for every county to deal with rioting and vagrants. cooperation by officials of other counties was mandated to deal with fugitives from its justice. the black death visited again in and in . the black death reduced the population from about million to about / million. it was to rise to about million by . when there were attempts to enforce the legal servitude of the villeins, they spread rhymes of their condition and need to revolt. a secret league, called the "great society" linked the centers of intrigue. a high poll tax, graduated from s. to d., that was to be raised for a war with france, touched off a spontaneous riot all over the nation in . this tax included people not taxed before, such as laborers, the village smith, and the village tiler. each area had its own specific grievances. there was no common political motive, except maladministration in general. in this peasants' revolt, mobs overran the counties around london. the upper classes fled to the woods. written records of the servitude of villeins were burned in their halls, which were also looted. title deeds of landlords were burned. rate rolls of general taxation were destroyed. prisoners were released from gaols. men connected with tax collection, law enforcement, attorneys, and alien merchants were beheaded. the chief justice was murdered while fleeing. the archbishop, who was a notoriously exploitive landlord, the chancellor, and the treasurer were murdered. severed heads were posted on london bridge. a mob took control of the king's empty bedchamber in the tower. the villeins demanded that service to a lord be by agreement instead of by servitude, a commutation of villein service for rents of a maximum of d. per acre yearly, abolition of a lord's right for their work on demand (e.g. just before a hail storm so only his crops were saved), and the right to hunt and fish. the sokemen protested having to use the lord's mill and having to attend his court. the revolt was suppressed and its leaders punished. the king issued proclamations forbidding unauthorized gatherings and ordering tenants of land to perform their customary services. the poll tax was dropped. for the future, the duty to deal with rioting and vagrants was given to royal justices, sheriffs, mayors, bailiffs, and constables as well as the justices of the peace. there was a high peace in each hundred and a petty constable in each parish. justices of the peace could swear in neighbors as unpaid special constables when disorder broke out. the sheriff was responsible for seeing that men of the lower classes were organized into groups of ten for police and surety purposes, and for holding of hundred and county courts, arresting suspects, guarding prisoners awaiting trial, carrying out the penalties adjudged by the courts, and collecting crown revenue through his bailiffs. royal writs were addressed to the sheriff. because many sheriffs had taken fines and ransoms for their own use, a term limit of one year was imposed. sheriffs, hundreders, and bailiffs had to have lands in the same counties or bailiwicks [so they could be held answerable to the king]. efforts were made to keep laborers at the plough and cart rather than learn a craft or entering and being educated by the church. the new colleges at the universities ceased to accept villeins as students. due to the shortage of labor, landlords' returns had decreased from about % to about %. but some found new methods of using land that were more profitable than the customary services of villeins who had holdings of land or the paid labor of practically free men who paid a money rent for land holdings. one method was to turn the land to sheep breeding. others leased their demesne land, which transferred the burden of getting laborers from the landlord to the lessee-tenant. the payment was called a "farm" and the tenant a "farmer". first, there were stock-and-land leases, in which both the land and everything required to cultivate it were let together. after years, when the farmers had acquired assets, there were pure land leases. landlords preferred to lease their land at will instead of for a term of years to prevent the tenant from depleting the soil with a few richer crops during the last years of his tenancy. the commutation of labor services into a money payment developed into a general commutation of virtually all services. lords in need of money gladly sold manumissions to their villeins. the lord and lady of some manors now ate with their family and entertained guests in a private parlor [from french word 'to speak"] or great chamber, where they could converse and which had its own fireplace. the great chamber was usually at the dais end of tahe great hall. the great hall had been too noisy for conversation and now was little used. there were also separate chambers or bed-sitting rooms for guests or members the family or household, in which one slept, received visitors, played games, and occasionally ate. some farmers achieved enough wealth to employ others as laborers on their farms. the laborers lived with their employer in his barn, sleeping on hay in the loft, or in mud huts outside the barn. the farmer's family lived at one end of the barn around an open fire. their possessions typically were: livestock, a chest, a trestle table, benches, stools, an iron or bronze cauldron and pots, brooms, wooden platters, wooden bowls, spoons, knives, wooden or leather jugs, a salt box, straw mattresses, wool blankets, linen towels, iron tools, and rush candles [used the pith of a rush reed for the wick]. those who could not afford rush candles could get a dim light by using a little grease in a shallow container, with a few twisted strands of linen thread afloat in it. the peasants ate dark bread and beans and drank water from springs. milk and cheese were a luxury for them. those who could not afford bread instead ate oat cakes made of pounded beans and bran, cheese, and cabbage. they also had leeks, onions, and peas as vegetables. some farmers could afford to have a wooden four-posted bedstead, hens, geese, pigs, a couple of cows, a couple of sheep, or two plow oxen. july was the month when the divide between rich and poor became most apparent. the rich could survive on the contents of their barns, but the poor tried to survive by grinding up the coarsest of wheat bran and shrivelled peans and beans to make some sort of bread. grain and bread prices soared during july. farming still occupied the vast majority of the population. town inhabitants and university students went into the fields to help with the harvest in the summer. parliament was suspended during the harvest. town people had more wealth than country people. most townspeople slept in nightgowns and nightcaps in beds with mattresses, blankets, linen sheets, and pillows. beds were made every morning. bathing was by sponging hot water from a basin over the body, sometimes with herbs in it, rinsing with a splash of warm water, and drying off with a towel. tubs used only for baths came into use. there were drapery rugs hung around beds, hand-held mirrors of glass, and salt cellars. the first meal of the day was a light breakfast, which broke the fast that had lasted the night. meals were often prepared according to recipes from cook books which involved several preparation procedures using flour, eggs, sugar, cheese, and grated bread, rather than just simple seasoning. menus were put together with foods that tasted well together and served on plates in several courses. sheffield cutlery was world famous. table manners included not making sounds when eating, not playing with one's spoon or knife, not placing one's elbows on the table, keeping one's mouth clean with a napkin, and not being boisterous. there were courtesies such as saying "good morning" when meeting someone and not pointing one's finger at another person. king richard ii invented the handkerchief for sneezing and blowing one's nose. there were books on etiquette. cats were the object of superstition, but there was an ancient and honorable order of the men who stroke cats. new burgesses were recruited locally, usually from within a mile radius of town. most of the freemen of the larger boroughs, like canterbury and london, came from smaller boroughs. an incoming burgess was required to buy his right to trade either by way of a seven year apprenticeship or by payment of an entry fee. to qualify, he needed both a skill and social respectability. towns started acquiring from the king the right to vacant sites and other waste places, which previously was the lord's right. the perpetuality of towns was recognized by statutes of , which compared town-held property to church-held property. the right of london to pass ordinances was confirmed by charter. some towns had a town clerk, who was chief of full-time salaried officers. there was a guildhall to maintain, a weigh-house, prison, and other public buildings, municipal water supplies, wharves, cranes, quays, wash-houses, and public lavatories. after the experience of the black death, some sanitary measures were taken. the notorious offenders in matters of public hygiene in the towns, such as the butchers, the fishmongers, and the leather tanners were assigned specific localities where their trades would do least harm. the smiths and potters were excluded from the more densely populated areas because they were fire risks. in the town of salisbury, there was butcher row, ox row, fish row, ironmongers' row, wheelwrights' row, smiths' row, pot row, silver street, cheese market, and wool market. fresh water was brought into towns by pipe or open conduit as a public facility, in addition to having public wells. in london, a conduit piped water underground to a lead tank, from which it was delivered to the public by means of pipes and brass taps in the stone framework. this was london's chief water supply. water carriers carried water in wooden devices on their backs to houses. the paving and proper drainage of the streets became a town concern. building contracts began specifying the provision of adequate cesspits for the privies at town houses, whether the latrines were built into the house or as an outhouse. also, in the better houses, there grew a practice of carting human and animal fecal matter at night to dung heaps outside the city walls. there was one public latrine in each ward and about twelve dung-carts for the whole city. country manor houses had latrines on the ground floor and/or the basement level. stairwells between floors had narrow and winding steps. in london, the goldsmiths, merchant taylors [tailors], skinners, and girdlers bought royal charters, which recognized their power of self-government as a company and their power to enforce their standards, perhaps throughout the country. the goldsmiths, the mercers, and the saddlers became the first guilds to receive, in - , charters of incorporation, which gave them perpetual existence. as such they could hold land in "mortmain" [dead hand], thus depriving the king of rights that came to him on the death of a tenant-in-chief. they were authorized to bestow livery on their members and were called livery companies. the liverymen [freemen] of the trading companies elected london's representatives to parliament. in all towns, the organization of craft associations spread rapidly downwards through the trades and sought self-government. craft guilds were gaining much power relative to the old merchant guilds in governing the towns. the greater crafts such as the fishmongers, skinners, and the corders (made rope, canvas, and pitch) organized and ultimately were recognized by town authorities as self-governing craft guilds. the building trade guilds such as the tilers, carpenters, masons, and joiners, became important. masons were still itinerant, going to sites of churches, public buildings, or commanded by the king to work on castles. the guild was not necessarily associated with a specific product. for instance, a saddle and bridle were the result of work of four crafts: joiner (woodworker), painter, saddler (leather), and lorimer (metal trappings). in london in craft guilds included: baker, fishmonger (cut up and sold fish), fruiterer, brewer, butcher, bird dealer, cook, apothecary (sold potions he had ground up), cutler (made knives and spoons), barber, tailor, shoemaker, glover (made gloves), skinner (sold furs), girdler (made girdles of cloth to wear around one's waist), pouchmaker, armorer, sheathmaker, weaver, fuller, painter, carpenter, joiner (woodworker who finished interior woodwork such as doors and made furniture), tiler, mason (cut stone for buildings), smith (made metal tools for stonemasons and builders), tallow chandler (made candles and sometimes soap from the fat and grease the housewife supplied), wax chandler (made candles), stirrup maker, spurrier (made spurs), and hosteler (innkeeper). however, the merchant guilds of the goldsmiths, vintners (sold wine), mercers (sold cloth), grocers, and drapers (finished and sold english cloth) were still strong. it was a long custom in london that freemen in one company could practice the trade of another company. there were paint mills and saw mills replacing human labor. there were apothecary shops and women surgeons. women who earned their own living by spinning were called "spinsters". some prices in london were: a hen pastry d., a capon pastry d., a roast pheasant d., a roast heron d., roast goose d., a hen d., a capon d., three roast thrushes d., ten larks d., ten finches d, and ten cooked eggs d. many of the guilds bought sites on which they built a chapel, which was later used as a secular meeting place. the guild officers commonly included an alderman, stewards, a dean, and a clerk, who were elected. the guild officers sat as a guild court to determine discipline for offences such as false weights or measures or false workmanship or work and decided trade disputes. the brethren in guild fraternity were classified as masters, journeymen, or apprentices. they were expected to contribute to the support of the sick and impoverished in their fellowship. their code required social action such as ostracizing a man of the craft who was living in adultery until he mended his ways. the rules of the company of glovers were: . none but a freeman of the city shall make or sell gloves. . no glover may be admitted to the freedom of the city unless with the assent of the wardens of the trade. . no one shall entice away the servant of another. . if a servant in the trade makes away with his master's chattels to the value of d., the wardens shall make good the loss; and if the servant refuses to be judged by the wardens, he shall be taken before the mayor and aldermen. . no one may sell his goods by candle-light. . any false work found shall be taken before the mayor and aldermen by the wardens. . all things touching the trade within the city between those who are not freemen shall be forfeited. . journeymen shall be paid their present rate of wages. . persons who entice away journeymen glovers to make gloves in their own houses shall be brought before the mayor and aldermen. . any one of the trade who refuses to obey these regulations shall be brought before the mayor and aldermen. cordwainers [workers in soft cordovan leather from spain, especially shoes] of good repute petitioned the city of london in for ordinances on their trade as follows: "to the mayor and aldermen of the city of london pray the good folks of the trade of cordwainers of the same city, that it may please you to grant unto them the articles that follow, for the profit of the common people; that so, what is good and right may be done unto all manner of folks, for saving the honor of the city and lawfully governing the said trade. in the first place - that if any one of the trade shall sell to any person shoes of bazen [sheep-skin tanned in oak or larch-bark] as being cordwain, or of calf-leather for ox-leather, in deceit of the common people, and to the scandal of the trade, he shall pay to the chamber of the guildhall, the first time that he shall be convicted thereof, forty pence; the second time, s. half a mark; and the third time the same, and further, at the discretion of the mayor and aldermen. also - that no one of the trade shall keep house within the franchise if he be not free [invested with the rights or privileges] of the city and one knowing his trade, and that no one shall be admitted to the freedom without the presence of the wardens of the trade bearing witness to his standing, on the pain aforesaid. also - if any one of the trade shall be found offending touching the trade, or rebellious against the wardens thereof, such person shall not make complaint to any one of another trade, by reason of the discord or dissension that may have arisen between them; but he shall be ruled by the good folks of his own trade. and if he shall differ from them as acting against right, then let the offense be adjudged upon before the mayor and aldermen; and if he be found rebellious against the ordinance, let him pay to the chamber the sum above mentioned. also - that no one of the trade shall entice or purloin the servant of another from the service of his master by paying him more than is ordained by the trade, on the pain aforesaid. also - that no one shall carry out of his house any wares connected with his trade for sale in market or elsewhere except only at a certain place situated between soperesland and the conduit; and that at a certain time of the day, that is to say, between prime [the first hour of the day] and noon. and that no shoes shall exceed the measure of seven inches, so that the wares may be surveyed by the good folks of the trade, because of the deceit upon the common people that might ensue and the scandal of the trade, on the pain aforesaid. also - that no one shall expose his wares openly for sale in market on sundays at any place, but only within his own dwelling to serve the common people, on the pain aforesaid. also - that if any one sells old shoes, he shall not mix new shoes among the old in deceit of the common people and to the scandal of the trade, on the pain aforesaid." smithfield was a field outside the city gates at which horses were sold and raced. in , the horsedealers and drovers petitioned for a tax on animals sold there to pay for cleaning the field. the city ordinance reads as follows: "on wednesday next after the feast of st. margaret the virgin came reputable men, the horsedealers and drovers, and delivered unto the mayor and aldermen a certain petition in these words: 'to the mayor, recorder, and aldermen show the dealers of smithfield, that is to say, the coursers and drovers, that for the amendment of the said field they have granted and assented among them that for the term of three years next ensuing after the date of this petition for every horse sold in the said field there shall be paid one penny, for every ox and cow one half-penny, for every eight sheep one penny, and for every swine one penny by the seller and the same by the purchaser who buys the same for resale.` afterwards, on the eleventh day of august in the same year, adam fernham, keeper of the gaol at newgate, hugh, averelle, bailiff of smithfield, and william godhewe, weaver, were chosen and sworn faithfully to collect and receive the said pennies in form aforesaid and to clean the field of smithfield from time to time during such term of three years when necessary." many london houses were being made from stone and timber and even brick and timber, instead of just timber and mud. however, chimneys were still a luxury of the rich. they were made of stone, tile, or plaster. there were windows of glass and a guild of glaziers was chartered by the king. a typical merchant's house had a cellar; a ground floor with a shop and storage space; a first floor with a parlor to receive guests, a spacious hall for dining, and perhaps a kitchen; and at the top, a large family bedroom and a servant's room. many single-roomed houses added a second-floor room for sleeping, which was approached by a wooden or stone staircase from the outside. their goods were displayed on a booth outside the door of the house or hung in the windows. they were stored at night in the cellar. over the booths swung huge signs, which had to be nine feet above street level to allow a man on horseback to ride underneath. there were no sidewalks. street repair work for wages was supervised by a stone master. the streets sloped down from the middle so that the filth of the streets would run down the sides of the road. there were many wood chips in the streets due to cutting up of firewood before taking it indoors. people often threw the rubbish from their houses onto the street although they were supposed to cart it outside the city walls and to clean the frontage of their houses once a week. dustmen scavenged through the rubbish on the streets. pigs and geese were not longer allowed to run at large in the streets, but had to be fed at home. there were other city rules on building, public order, the use of fountains, precautions against fire, trading rights in various districts, closing time of taverns, and when refuse could be thrown into the streets, e.g. nighttime. aldermen were constantly making rounds to test measures and weights, wine cups, the height of tavern signs, and the mesh of the fishing nets, which had to be at least two inches wide. they saw that the taverns were shut when curfew was rung and arrested anyone on the street after curfew who had a weapon, for no one with a sword was allowed on the streets unless he was some great lord or other substantial person of good reputation. wards provided citizens to guard the gates in their respective neighborhood and keep its key. the city was so dense that nuisance was a common action brought in court, for instance, vegetable vendors near a church obstructing passageway on the street or plumbers melting their solder with a lower than usual shaft of the furnace so smoke was inhaled by people nearby. crime in london was rare. murder, burglary, highway robbery, and gross theft were punishable by hanging. forgery, fraud, was punishable by the placement in the pillory or stocks or by imprisonment. perjury was punished by confession from a high stool for the first offense, and the pillory for the second. slander and telling lies were punished by the pillory and wearing a whetstone around one's neck. there was an ordinance passed against prostitutes in . london as well as other port towns had not only prostitutes, but syphillus. prominent londoners sought to elevate their social position by having their family marry into rural landholders of position. for poor boys with talent, the main routes for advancement were the church, the law, and positions in great households. many master freemasons, who carved freestone or finely grained sandstone and limestone artistically with mallet and chisel, left the country for better wages after their wages were fixed by statute. the curvilinear gothic style of architecture was replaced by the perpendicular style, which was simpler and cheaper to build. church steeples now had clocks on them with dials and hands to supplement the church bell ringing on the hour. alabaster was often used for sepulchral monuments instead of metal or stone. with it, closer portraiture could be achieved. in the s and s the london population suffered from tuberculosis, typhus, influenza, leprosy, dysentery, smallpox, diphtheria, measles, heart disease, fevers, coughs, cramps, catarrhs and cataracts, scabs, boils, tumors, and "burning agues". there were also many deaths by fires, burning by candles near straw beds when drunk, falling downstairs when drunk, and drowning in the river or wells. children were often crushed by carts, trampled by horses, or mauled by pigs. towns recognized surgery as a livelihood subject to admission and oath to serve the social good. master surgeons were admitted to practice in in london in full husting before the mayor and the aldermen and swore to: faithfully serve the people in undertaking their cures, take reasonably from them, faithfully follow their calling, present to the said mayor and aldermen the defaults of others undertaking, so often as should be necessary; to be ready, at all times when they should be warned, to attend the maimed or wounded and others, to give truthful information to the officers of the city as to such maimed, wounded, or others whether they be in peril of death or not, and to faithfully do all other things touching their calling. some young girls of good families were boarded at nunneries to be taught there. some upper class widows retired there. only women were allowed to be present at a birth, at which they spread the knowledge of midwifery. as usual, many women died giving birth. various ways to prevent pregnancy were tried. it was believed that a baby grew from a seed of the father planted in the woman's body. infant mortality was especially high in boroughs and burgess family lines usually died out. a three-generation family span was exceptional in the towns, despite family wealth. children's sweets included gingerbread and peppermint drops. after the plague, gentlemen no longer had their children learn to speak norman. the grammar schools taught in english instead of norman as of . bishops began to preach in english. english became the official language of parliament, in , and the courts, replacing norman and latin. a will in in which a wealthy citizen arranges for one son to become a attorney and the other a merchant: "will of william de tonge, citizen of london: one hundred marks [ , s.] each to my two sons. and i will that my said two sons shall live upon the profits of the money bequeathed to them above until the age of twenty years. and if my said two sons be well learned in grammar and adorned with good manners, which shall be known at the end of twenty years, and the elder son wish to practice common law, and if it is known that he would spend his time well in that faculty, i will that over and above the profit of the said one hundred marks he shall have yearly from my rents for the term of seven years five marks [ s.]. and if he should waste his time aforesaid, or if he should marry foolishly and unsuitably, i will that he receive nothing more of the said five marks. and if younger son wishes to attend the university of oxford or to establish himself well in the mystery of a merchant after the age of twenty years, and [if] there be knowledge of his praiseworthy progress in his faculty or his carefulness in trading ... i will that he shall receive five marks yearly in the manner described above for his maintenance, over and above the profit of the said one hundred marks to him bequeathed, for the space of seven years; and if he behave himself otherwise, i will that thereupon he be excluded from the said five marks. and in case the said bequest of marks [ , s.] to him and his brother shall be annulled so that he shall have nothing therefrom ... then the said marks shall be spent upon all the yearly chaplains who can be had to celebrate divine service in the church of all hallows for my soul." england was still an agricultural rather than a manufacturing country. imported were cloth, silks, linen, velvets, furs, glass, wines, candles, millstones, amber, iron, and mercury. exported were wool, leather, lead, tin, and alabaster for sculpturing. merchant adventurers came to manufacture cloth good enough for export and began to buy up raw wool in such quantity that its export declined. they took their cloth abroad to sell, personally or by agents. an oxford theologian and preacher, john wyclif, voiced the popular resentment of the materialism of the church, benefit of clergy, immorality of priests, and the selling of indulgences and pardons. encouraged by the king, he argued against the supremacy of the papal law over the king's courts and against payments to the papacy. he opined that the church had no power to excommunicate. the friars had become mere beggars and the church was still wealthy. he proposed that all goods should be held in common by the righteous and that the church should hold no property but be entirely spiritual. he believed that people should rely on their individual consciences. he thought that the bible should be available to people who could read english so that the people could have a direct access to god without priests or the pope. towards this end, he translated it from latin into english in . his preachers spread his views throughout the country. the church then possessed about one-third of the land of the nation. william of ockham, an englishman educated at oxford and teaching theology in paris, taught that the primary form of knowledge came from experience gained through the senses and that god might cause a person to think that he has intuitive knowledge of an existent object when there is in fact no such object. most great lords were literate. many stories described good men, who set an example to be followed, and bad men, whose habits were to be avoided. stories were written about pilgrimage vacations of ordinary people to religious sites in england. will langland's poem "the vision of william concerning piers plowman" portrays a pilgrimage of common people to the shrine of truth led by a virtuous laborer. mystics wrote practical advice with transcendental teaching, for instance "scale of perfection" attributed to walter hilton and "cloud of unknowing". richard rolle wrote about spiritual matters, probably the "prick of conscience". richard de bury wrote "philobiblon" about book lovers. jean froissart wrote the "chronicles" on knights. courtly ideals were expressed in "sir gawaine and the grene knyght", wherein the adventures of the hero, an arthur knight, are allegorical in the struggle against the world, the flesh, and the devil ( ). "pearl" eulogized all that is pure and innocent on the event of the death of a two year old child. geoffrey chaucer was a squire and diplomat of the king. his "tales of the canterbury pilgrims" portrayed characters of every social class, including the knight with his squire, abbot, prioress, nun, priest, monk, friar, poor parson of the country, summoner (who enforced the jurisdiction and levied the dues of the church courts), pardoner (sold pardons from the pope), scholar, attorney, doctor, merchant, sailor, franklin, yeoman, haberdasher, tapestry- maker, ploughman, cook, weaver, dyer, upholsterer, miller, reeve, carpenter. there were chaucer stories about a beautiful and virtuous wife disliked by her mother-in-law, the difficulty of marriage between people of different religions, the hatred of a poor person by his brother and his neighbor, rich merchants who visited other kingdoms, the importance of a man himself following the rules he sets for other people's behavior, the spite of a man for a woman who rejected him, the relative lack of enthusiasm of a wife for sex as compared to her husband, a mother giving up her own comfort for that of her child, the revenge killing of a murderer by the dead man's friends, the joy of seeing a loved one after years of separation, that life is more sad than happy, that lost money can be retrieved, but time lost is lost forever. other stories in the canterbury tales were about two men who did not remain friends after they fell in love with the same woman, about a child who preferred to learn from an older child than from his school-teacher, about a wife who convinced her husband not to avenge her beating for the sake of peace, about a man who woke up from bad dreams full of fear, about a man wanting to marry a beautiful woman but later realizing a plain wife would not be pursued by other men, about a man who drank so much wine that he lost his mental and physical powers, about a woman who married for money instead of love, about a man who said something in frustration which he didn't mean, about a person brought up in poverty who endured adversity better than one brought up in wealth, about a wife who was loving and wise, about a good marriage being more valuable than money, about a virgin who committed suicide rather than be raped, about a wife persuaded to adultery by a man who said he would otherwise kill himself, about three men who found a pile of gold and murdered each other to take it all, about an angry man who wanted to kill, about a malicious man who had joy in seeing other men in trouble and misfortune, about a man whose face turned red in shame, about a wife expecting to have half of what her husband owned. paper supplemented parchment, so there were more books. political songs and poems were written about the evil times of king edward ii, the military triumphs of king edward iii, and the complaints of the poor against their oppressors, such as "song of the husbandman". john gower wrote moralizing poems on the villein's revolt, the sins of the clergy and attorneys, and the bad rule of king richard ii, who in succeeded edward iii. robin hood ballads were popular. the minstrel, who was a honorable person, replaced the troubadour of older times. there were many colleges at oxford and cambridge due to the prohibition of gifts to the church. laymen instead of ecclesiastics were appointed as chancellor. the masters at oxford got rid of ecclesiastical supervision by a bishop and archdeacon by . one could be admitted as a student at age thirteen. the rate of maintenance for a student was d. weekly. a bachelor of arts degree was granted after four years of study and an oral exam. required reading in for the bachelor's degree was the new logic of aristotle ("prior and posterior analytics" e.g. on syllogistic logic and deduction, the "topics", or the "sophistical refutations", e.g. logical fallacies such as from 'all a are b' to 'all b are a'), and a selection from these aristotle works on physics: "of heaven and earth", "on the soul", "of meteors", "of birth and decay", or "of feeling and what is felt" with "of memory and recollection" and "of sleep and waking", or "of the movement of animals" with "of minor points in natural history". a master of arts degree could be awarded after three more years of study and teaching. a doctorate degrees in theology required ten more years of study. a doctorate in civil or canon law required eight more years. a man with a degree in canon law who wanted to practice in a certain bishop's court had to first satisfy this bishop of his competence. another source of legal learning was in london, where the guilds gave rise to the inns of court. they used the register of writs, the case law of the year books, and disputation to teach their students. for a doctorate in medicine from oxford or cambridge, five more years plus two years of practice were required. surgery was not taught because it was considered manual labor, and there was some feeling that it was a sacrilege and dishonorable. urinalysis and pulse beat were used for diagnosis. epilepsy and apoplexy were understood as spasms inside the head. it was known what substances served as laxatives and diuretics. teeth were extracted, eye cataracts were removed with a silver needle, and skin from the arm was grafted onto a mutilated face. englishmen who had collected books on philosophy, medicine, astronomy, and history and literature books from the continent gave their collections to the universities, which started their libraries. marco polo's discoveries on his journey to china were known. the requirements of elementary and higher studies were adjusted in and began the public school system. william of wykeham's school, st. mary college of winchester in oxford was the prototype. the curriculum was civil law, canon law, medicine, with astronomical instruments that students made, theology, and the arts. the arts textbooks were still grammar, logic, donatus, and aristotle. many laymen were literate, for instance country gentry, merchants, and craftsmen. laymen instead of clerics were now appointed to the great offices of state. parliament met about twice a year and lasted from two weeks to several months. there was a well-defined group of about fifty barons and a few spiritual peers who were always summoned to parliament and who composed a house of lords. "peer" now meant a member of the house of lords. all peers had the right to approach the king with advice. the baron peers reasoned that the custom of regular attendance was a right that should be inherited by the eldest son, or by a female heir, if there were no male heirs. however, the theory of nobility by blood as conveying political privilege had no legal recognition. no female could attend parliament; the husband of a baronness attended parliament in her stead. edward iii and richard ii created new peers with various titles of dignity, such as duke and marquess, which were above barons and earls. the dukes and marquesses were identified with a territorial designation such as an english county or county town. whenever a parliament was assembled the commons were present. the commons was composed of representatives from boroughs and counties. each new parliament required an election of representatives. the members of the commons were generally the most prominent and powerful economic and political figures of the county and were repeatedly re-elected. the electors were usually influenced by the sheriff or a powerful lord who suggested suitable men. the wealthy merchants typically represented the boroughs and paid much of the taxes. under edward iii, the commons took a leading part in the granting of taxes and the presentation of petitions and became a permanent and distinct body, the house of commons, with a spokesman or "speaker", chosen by the crown, and a clerk. the speaker came to be an intermediary between the commons and the king and between the commons and the lords. a clerk of parliament registered its acts and sat with the lords. a clerk of the crown superintended the issue of writs and the receipt of the returns and attested the signature of the king on statutes. it became a regular practice for the chancellor to open parliament with an opportunity to present petitions after his opening speech. the king then referred them to certain peers and justices, who decided to which court, or parliament, they should be sent. during the s, the number of barons going to parliament gradually decreased. at the parliament, ("the good parliament") the commons, which formerly had only consented to taxes, took political action by complaining that the king's councilors had grown rich by war profiteering at the cost of impoverishing the nation and the people were too poor to endure any more taxation for the war and held a hearing on financial malfeasance and dishonesty of two ministers. the chamberlain had extorted enormous sums, had intercepted fines meant for the king's treasury, and had sold a castle to the enemy. the steward had bought debts of the king's. the house of lords, the high court of parliament, found the charges proved and dismissed them permanently from office. this established the constitutional means for impeachment and prosecution by the commons and removal by the house of lords of ministers. by this process, there could be no royal intimidation, as there could be in the ordinary courts. the commons demanded that its members be elected by county citizens rather than appointed by the sheriff. the roles of parliament and the king's council are starting to differentiate into legislative and executive, respectively. the legislative function is law-making and the executive is regulation-making that refines and effectuates the laws of parliament. but the legislative, executive, and judicial authorities have not as yet become so completely separated that they cannot on occasion work together. sheriffs dealt directly with the king instead of through an earl. from to , resistance was an ordinary remedy for political disagreements. if a popular leader raised his standard in a popular cause, an irregular army could be assembled in a day. (there was no regular army, since england was protected by the sea from invasion.) so misgovernment by a king would be quickly restrained. society recovered quickly from conflict and civil war because the national wealth consisted chiefly in flocks and herds and in the simple buildings inhabited by the people. in a week after armed resistance, the agricultural worker was driving his team. there was little furniture, stock of shops, manufactured goods, or machinery that could be destroyed. to support a war with france in , the staple was reinstated by statute of after an experiment without it in which profits of a staple went to staples outside the nation. wool exports were inspected for quality and taxed through his officials only at the designated staple ports. these officials included collectors, controllers, searchers [inspectors], surveyors, clerks, weighers, and crane-keepers. wool, woolfells, leather, and lead sold for export had to go through the staple town. the penalty was forfeiture of lands, tenements, goods, and chattel. (the staple statute remained basically unchanged for the next years.) the mayor and constables of the staple were elected annually by the native and foreign merchants of the place. the mayor gave validity to contracts for a set fee, by seal of his office. he and the constables had jurisdiction over all persons and things touching the staple, which was regulated by the law merchant in all matters of contract, covenant, debt, and felonies against foreign merchants. a hue and cry was required to be raised and followed for anyone taking a cart of merchandise or slaying a merchant, denizen [resident alien] or alien, or the town would answer for the robbery and damage done. in , calais, a continental town held by the english, became the staple town for lead, tin, cloth, and wool and was placed under a group of london capitalists: the merchants of the staple. all exports of these had to pass through calais, where customs tax was collected. guns and cannon were common by . in the s and s, the king relied on mercenaries hired directly or by contract with his great nobles for foreign wars. the king reimbursed the contractors with the profits of war, such as the ransoms paid by the families of rich prisoners. the fighting men supplemented their pay by plunder. featherbeds and blooded horses were favorite spoils of war brought back to england from the continent. as new techniques with footmen came into being, the footmen became the core of the army and the knightly abilities of the feudal tenants-in-chief became less valuable. many lords got men to fight with them by livery and maintenance employment agreements such as this one of : "bordeaux, february . this indenture, made between our lord king john [of gaunt, of castile, etc.] of the one part and symkyn molyneux, esquire, of the other part, witnesses that the said symkyn is retained and will remain with our said lord for peace and for war for the term of his life, as follows: that is to say, the said symkyn shall be bound to serve our said lord as well in time of peace as of war in whatsoever parts it shall please our said lord, well and fitly arrayed. and he shall be boarded as well in time of peace as of war. and he shall take for his fees by the year, as well in time of peace as of war, ten marks sterling [ s.] from the issues of the duchy of lancaster by the hands of the receiver there who now is or shall be in time to come, at the terms of easter and michaelmas by even portions yearly for the whole of his life. and, moreover, our lord has granted to him by the year in time of war five marks sterling [ s.] by the hands of the treasurer of war for the time being. and his year of war shall begin the day when he shall move from his inn towards our said lord by letters which shall be sent to him thereof, and thenceforward he shall take wages coming and returning by reasonable daily [payments] and he shall have fitting freightage for him, his men, horses, and other harness within reason, and in respect of his war horses taken and lost in the service of our said lord, and also in respect to prisoners and other profits of war taken or gained by him or any of his men, the said our lord will do to him as to other squires of his rank." forecastles and stern castles on ships were lower and broader. underneath them were cabins. the english ship was still single masted with a single square sail. a fleet was formed with over ships selected by the english admirals acting for the king at the ports. men were seized and pressed into service and criminals were pardoned from crimes to become sailors in the fleet, which was led by the king's ship. they used the superior longbow against the french sailor's crossbow. in , the tower of london had four mounted fortress cannon and the port of dover had six. the war's disruption of shipping caused trade to decline. but the better policing of the narrow seas made piracy almost disappear. english merchants may carry their merchandise in foreign ships if there are no english ships available. anyone may ship or carry grain out of the nation, except to enemies, after paying duties. but the council may restrain this passage when necessary for the good of the nation. any merchant, privy or stranger, who was robbed of goods on the sea or lost his ship by tempest or other misfortune on the sea banks, his goods coming to shore could not be declared wreck, but were to be delivered to the merchant after he proves ownership in court by his marks on the goods or by good and lawful merchants. all stakes and obstacles set up in rivers impeding the passage of boats shall be removed. waterpower was replacing foot power in driving the mills where cloth was cleaned and fulled. a boundary dispute between two barons resulted in the first true survey map. nine cow pastures were divided by a boundary marked by a shield on a pole which the commission of true and sworn men had set up. king richard ii, an irresponsible sovereign, asserted an absolute supremacy of the king over parliament and declared certain statutes which he claimed to have been forced on him to be revoked. he interfered with county elections of knights to parliament by directing sheriffs to return certain named persons. he wanted to dispense altogether with parliament and instead have a committee of representatives. he claimed that the goods of his subjects were his own and illegally taxed the counties. there were many disputes as to who should be his ministers. high treason was extended to include making a riot and rumor, compassing or purposing to depose the king, revoking one's homage or liege to the king, or attempting to repeal a statute. when henry bolingbroke reported to parliament that another lord had cast doubt on the king's trustworthiness, a duel between them was arranged. but richard, probably fearing the gain of power of the lord who won, instead exiled the two lords. he took possession of the lancaster estates to which henry was heir and forbade this inheritance. this made all propertied men anxious and they united behind bolingbroke in taking up arms against richard. richard was not a warrior king and offered to resign the crown. the "merciless parliament" of swept out richard's friends. parliament deposed and imprisoned richard. it revoked the extensions to the definition of high treason. it elected bolingbroke, who claimed to be a descendant of henry iii, to be king henry iv. this action established clearly that royal decrees were subordinate to parliamentary statutes, that parliament was the ultimate legal arbiter of the realm, and that the consent of parliament was necessary in determining kingship. the house of commons became very powerful. it was responsible for the major part of legislation. it's members began to assert the privilege of free speech. that is, they wanted to discuss other matters than what was on the king's agenda and they opposed punishment for what they said unless it was treasonable. henry iv agreed to their request not to consider reports of proceedings unless they came to him through official channels. - the law - after the black death of these statutes were enacted: high treason was defined by statute in as levying war against the king, aiding the king's enemies, compassing or imagining the death of the king, queen, or their eldest son and heir, or violating the queen or the eldest unmarried daughter or the wife of the king's eldest son and heir; making or knowingly using counterfeits of the king's great or privy seal or coinage; or slaying the chancellor, treasurer, or any justice in the exercise of their duty. the penalty was forfeit of life and lands. petit treason was defined by statute and included a servant slaying his master, a wife her husband, or a man his lord, to whom was owed faith and obedience. no one shall tell false news or lies about prelates, dukes, earls, barons, and other nobles and great men or the chancellor, treasurer, a justice, clerk of the privy seal, steward of the king's house whereby debates and discords might arise between these lords or between the lords and the commons. cases shall be tried by the king's council, which included the chancellor, treasurer, and chief justices. preachers drawing crowds by ingenious sermons and inciting them to riot shall be arrested by sheriffs and tried by the ecclesiastical court. any stranger passing at night of whom any have suspicion shall be arrested and taken to the sheriff. no man shall ride with a spear, upon pain of forfeiting it. no servant of agriculture or laborer shall carry any sword or dagger, or forfeit it, except in time of war in defense of the nation. he may carry bow and arrow [for practice] on sundays and holy days, when he should not play games such as tennis, football, or dice. no one may enter another's land and tenements by strong hand nor with a mob, upon pain of imprisonment and ransom at the king's will. charters, releases, obligations, [quit-claim deeds] and other deeds burnt or destroyed in uprisings shall be reissued without fee, after trial by the king and his council. manumissions, obligations, releases and other bonds and feoffments in land made by force, coercion or duress during mob uprisings are void. men who rape and women consenting after a rape shall lose their inheritance and dower and joint feoffments. the husbands, or father or next of kin of such women may sue the rapist by inquisition, but not by trial by combat. the penalty is loss of life and member. the statute of laborers of required all workers, from tailors to ploughmen, to work only at pre-plague wage rates and forced the vagrant peasant to work for anyone who claimed him or her. it also encouraged longer terms of employment as in the past rather than for a day at a time. statutory price controls on food limited profits to reasonable ones according to the distance of the supply. later, wages were determined in each county by justices of the peace according to the dearth of victuals while allowing a victualler a reasonable profit and a penalty was specified as paying the value of the excess wages given or received for the first offense, double this for the second offense, and treble this or forty days imprisonment for the third offense. a fugitive laborer will be outlawed, and when found, shall be burnt in the forehead with the letter "f" for falsity. children who labored at the plough and cart or other agriculture shall continue in that labor and may not go into a craft. a statute of designed to stop hoarding various types of merchandise until a type became scarce so to sell it at high prices, required merchants to deal in only one type of merchandise. it also required craftsmen to work in only one craft as before (except women who traditionally did several types of handiwork). this was repealed a year later. where scarcity has made the price of poultry high, it shall be lowered to d. for a young capon, d. for an old capon or a goose, d. for a hen, and d. for a pullet. the fares for passage on boats on fresh waters and from dover to the continent shall remain at their old rate. any merchant selling at a fair after it has ended will forfeit to the king twice the value of that sold. anyone finding and proving cloth contrary to the assize of cloth shall have one-third of it for his labor. no shoemaker nor cordwainer shall tan their leather and no tanner shall make shoes, in order that tanning not be false or poorly done. all denizen [foreigner permitted to reside in the realm with certain rights and privileges] and alien merchants may buy and sell goods and merchandise, in gross, in any part of the country, despite town charters or franchises, to anyone except an enemy of the king. they may also sell small wares: victuals, fur, silk, coverchiefs [an item of woman's apparel], silver wire, and gold wire in retail, but not cloth or wine. they must sell their goods within three months of arrival. any alien bringing goods to the nation to sell must buy goods of the nation to the value of at least one-half that of his merchandise sold. these merchants must engage in no collusion to lower the price of merchandise bought, take merchandise bought to the staple, and promise to hold no staple beyond the sea for the same merchandise. an amendment disallowed denizens from taking wools, leather, woolfells, or lead for export, but only strangers. towns failing to bring disturbers of this right to justice shall forfeit their franchise to the king and pay double damages to the merchant. the disturber shall be imprisoned for a year. cloth may not be tacked nor folded for sale to merchants unless they are opened to the buyers for inspection, for instance for concealed inferior wool. workers, weavers, and fullers shall put their seals to every cloth. and anyone could bring his own wools, woolfells, leather, and lead to the staple to sell without being compelled to sell them in the country. special streets or warehouses were appointed with warehouse rent fixed by the mayor and constables with four of the principal inhabitants. customs duties were regulated and machinery provided for their collection. no one was to forestall or regrate, that is, buy at one price and sell at a higher price in the same locale. forestallers were those who bought raw material on its way to market. regrators were those who tried to create a "corner" in the article in the market itself. imported cloth shall be inspected by the king's officials for non- standard measurements or defects [despite town franchises]. no one shall leave the nation except at designated ports, on pain of one year's imprisonment. social distinctions by attire were mandated by statute of . a servant, his wife, son, or daughter, shall only wear cloth worth no more than s. and shall not have more than one dish of meat or fish a day. carters, ploughmen, drivers of the plough, oxherds, cowherds, shepherds, and all other people owning less than s. of goods and chattels shall only wear blanket and russet worth no more than d. and girdles of linen according to their estate. craftsmen and free peasants shall only wear cloth worth no more than s. esquires and gentlemen below the rank of knight with no land nor rent over , s. a year shall only wear cloth worth no more than s., no gold, silver, stone, fur, or the color purple. esquires with land up to , s. per year may wear s. cloth, cloth of silk and silver, miniver [grey squirrel] fur and stones, except stones on the head. merchants, citizens, burgesses, artificers, and people of handicraft having goods and chattels worth , s. shall wear cloth the same value as that worn by esquires and gentlemen with land or rent within , s. per year. the same merchants and burgesses with goods and chattels worth , s. and esquires and gentlemen with land or rent within s. per year may not wear gold cloth, miniver fur, ermine [white] fur, or embroidered stones. a knight with land or rents within , s. yearly are limited to cloth of s., but his wife may wear a stone on her head. knights and ladies with land or rents within , s. to , s. yearly may not wear fur of ermine or of letuse, but may wear gold, and such ladies may wear pearls as well as stones on their heads. the penalty is forfeiture of such apparel. this statute is necessary because of "outrageous and excessive apparel of diverse persons against their estate and degree, to the great destruction and impoverishment of all the land". if anyone finds a hawk [used to hunt birds, ducks, and pheasant] that a lord has lost, he must take it to the sheriff for keeping for the lord to claim. if there is no claim after four months, the finder may have it only if he is a gentleman. if one steals a hawk from a lord or conceals from him the fact that it has been found, he shall pay the price of the hawk and be imprisoned for two years. no laborer or any other man who does not have lands and tenements of the value of s. per year shall keep a greyhound [or other hound or dog] to hunt, nor shall they use nets or cords or other devices to take [deer, hare, rabbits, nor other gentlemen's game], upon pain of one year imprisonment. (the rabbit had been introduced by the normans.) this law was primarily intended to stop the meetings of laborers and artificers. no man shall eat more than two courses of meat or fish in his house or elsewhere, except at festivals, when three are allowed [because great men ate costly meats to excess and the lesser people were thereby impoverished]. no one may export silver, whether bullion or coinage, or wine except foreign merchants may carry back the portion of their money not used to buy english commodities. the penalty for bringing false or counterfeit money into the nation is loss of life and member. an assigned searcher [inspector] for coinage of the nation on the sea passing out of the nation or bad money in the nation shall have one third of it. no foreign money may be used in the nation. each goldsmith shall have an identifying mark, which shall be placed on his vessel or work only after inspection by the king's surveyor. no one shall give anything to a beggar who is capable of working. vagrants begging in london were banned by this ordinance: "forasmuch as many men and women, and others, of divers counties, who might work, to the help of the common people, have betaken themselves from out of their own country to the city of london and do go about begging there so as to have their own ease and repose, not wishing to labor or work for their sustenance, to the great damage of the common people; and also do waste divers alms which would otherwise be given to many poor folks, such as lepers, blind, halt, and persons oppressed with old age and divers other maladies, to the destruction of the support of the same - we do command on behalf of our lord the king, whom may god preserve and bless, that all those who go about begging in the said city and who are able to labor and work for the profit of the common people shall quit the said city between now and monday next ensuing. and if any such shall be found begging after the day aforesaid, the same shall be taken and put in the stocks on cornhill for half a day the first time, and the second time he shall remain in the stocks one whole day, and the third time he shall be taken and shall remain in prison for forty days and shall then forswear the said city forever. and every constable and the beadle of every ward of the said city shall be empowered to arrest such manner of folks and to put them in the stocks in manner aforesaid." the hundred year cry to "let the king live on his own" found fruition in a statute requiring consent of the parliament before any commission of array for militia could be taken and a statute requiring purchases of goods and means of conveyance for the king and his household to be made only by agreement with the seller and with payment to him before the king traveled on, instead of at the low prices determined unilaterally by the king's purveyor. every man who has wood within the forest may take houseboot [right to take wood for reapir of one's house] and heyboot [right to take material for the maintenance of hedges and fences, and the making of farming utensils] in his wood without being arrested so long as it take such within the view of the foresters. no fecal matter, dung, garbage, or entrails of animals killed shall be put into ditches or rivers or other waters, so that maladies and diseases will not be caused by corrupted and infected air. the penalty is s. to the king after trial by the chancellor. gifts or alienation of land to guilds, fraternities, or towns are forbidden. instead, it escheats to its lord, or in his default, to the king. no man will be charged to go out of his county to do military service except in case of an enemy invasion of the nation. men who chose to go into the king's service outside the nation shall be paid wages by the king until their return. admiralty law came into being when ancient naval manners and customs were written down as the "black book of the admiralty". this included the organization of the fleet under the admiral, sea-maneuver rules such as not laying anchor until the admiral's ship had, engagement rules, and the distribution of captured goods: one-fourth to the vessel owner, one-fourth to the king if the seamen were paid by the king's wages, and the rest divided among the crew and admiral. stealing a boat or an anchor holding a boat was punishable by hanging. stealing an oar or an anchor was punishable by forty days imprisonment for the first offense, six months imprisonment for the second, and hanging for the third. desertion was punishable by loss of double the amount of wages earned and imprisonment for one year. cases were tried by jury in the admiral's court. wines, vinegar, oil and honey imported shall be gauged by the king's appointees. - judicial procedure - the office of justice of the peace was developed and filled by knights, esquires and gentlemen who were closely associated with the magnates. there was no salary nor any requirement of knowledge of the law. they were to pursue, restrain, arrest, imprison, try, and duly punish felons, trespassers, and rioters according to the law. they were expected to arrest vagrants who would not work and imprison them until sureties for good behavior was found for them. they also were empowered to inspect weights and measures. trespass included forcible offenses of breaking of a fence enclosing private property, assault and battery, false imprisonment, and taking away goods and chattels. the action of trespass was replacing private suits for murder and for personal injury. pardons may be given only for slaying another in one's own defense or by misfortune [accident], and not for slaying by lying in wait, assault, or malice aforethought. justices of assize, sheriffs, and justices of the peace and mayors shall have power to inquire of all vagabonds and compel them to find surety of their good bearing or be imprisoned. a reversioner shall be received in court to defend his right when a tenant for a term of life, tenant in dower, or by the law of england, or in tail after possibility of issue extinct are sued in court for the land, so as to prevent collusion by the demandants. a person in debt may not avoid his creditors by giving his tenements or chattels to his friends in collusion to have the profits at their will. where there was a garnishment given touching a plea of land, a writ of deceit is also maintainable. actions of debt will be heard only in the county where the contract was made. the action of debt includes enforcement of contracts executed or under seal, e.g. rent due on a lease, hire of an archer, contract of sale or repair of an item. thus there is a growing connection between the actions of debt and contract. executors have an action for trespass to their testators' goods and chattels in like manner as did the testator when alive. if a man dies intestate, his goods shall be administered by his next and most lawful friends appointed. such administrators shall have the same powers and duties as executors and be accountable as are executors to the ecclesiastical court. children born to english parents in parts beyond the sea may inherit from their ancestors in the same manner as those born in the nation. a person grieved by a false oath in a town court proceeding may appeal to the king's bench or common pleas, regardless of any town franchise. the court of the king's bench worked independently of the king. it was exceptional to find the king sitting on his bench. it became confined to the established common law. decisions of the common law courts are appealable to the house of lords. the king's council members who are not peers, in particular the justices and the masters of the chancery, are summoned by the house of lords only as mere assistants. parliament can change the common law by statute. the right of a peer to be tried for capital crimes by a court composed of his peers was established. there is a widespread belief that all the peers are by right the king's councilors. no attorney may practice law and also be a justice of assize. no justice may take any gift except from the king nor give counsel to any litigant before him. in , there was another statute against maintainers, instigators, barretors, procurers, and embracers of quarrels and inquests because of great and outrageous oppressions of parties in court. because this encouraged maintenance by the retinue of lords with fees, robes, and other liveries, such maintainers were to be put out of their lords' service, and could not be retained by another lord. no one was to give livery to anyone else, except household members and those retained for life for peace or for war. justices of the peace were authorized to inquire about yeomen, or other of lower estate than squire, bearing livery of any lord. whereas it is contained in the magna carta that none shall be imprisoned nor put out of his freehold, nor of his franchises nor free custom, unless it be by the law of the land; it is established that from henceforth none shall be taken by petition or suggestion made to the king unless by indictment of good and lawful people of the same neighborhood where such deeds be done, in due manner, or by process made by writ original at the common law; nor that none be out of his franchise, nor of his freeholds, unless he be duly brought into answer and before judges of the same by the course of law. the chancery came to have a separate and independent equitable jurisdiction. it heard petitions of misconduct of government officials or of powerful oppressors, fraud, accident, abuse of trust, wardship of infants, dower, and rent charges. because the common law and its procedures had become technical and rigid, the chancery was given equity jurisdiction by statute in . king edward iii proclaimed that petitions for remedies that the common law didn't cover be addressed to the chancellor, who was not bound by established law, but could do equity. in chancery, if there is a case that is similar to a case for which there is a writ, but is not in technical conformity with the requirements of the common law for a remedy, then a new writ may be made for that case by the chancellor. these were called "actions on the case". also, parliament may create new remedies. there were so many cases that were similar to a case with no remedy specified in the common law, that litigants were flowing into the chancery. the chancellor gave swift and equitable relief, which was summary. with the backing of the council, the chancellor made decisions implementing the policy of the statute of laborers. most of these concerned occupational competency, for instance negligent activity of carriers, builders, shepherds, doctors, clothworkers, smiths, innkeepers, and gaolers. for instance, the common law action of detinue could force return of cloth bailed for fulling or sheep bailed for pasturing, but could not address damages due to faulty work. the chancellor addressed issues of loss of wool, dead lambs, and damaged sheep, as well as dead sheep. he imposed a legal duty on innkeepers to prevent injury or damage to a patron or his goods from third parties. a dog bite or other damage by a dog known by its owner to be vicious was made a more serious offense than general damage by any dog. a person starting a fire was given a duty to prevent the fire from damaging property of others. the king will fine instead of seize the land of his tenants who sell or alienate their land, such fine to be determined by the chancellor by due process. only barons who were peers of the house of lords were entitled to trial in the house of lords. in practice, however, this pertained only to major crimes. treason was tried by the lords in parliament, by bill of "attainder". it was often used for political purposes. most attainders were reversed as a term of peace made between competing factions. the king's coroner and a murderer who had taken sanctuary in a church often agreed to the penalty of confession and perpetual banishment from the nation as follows: "memorandum that on july , [ ], henry de roseye abjured the realm of england before john bernard, the king's coroner, at the church of tendale in the county of kent in form following: 'hear this, o lord the coroner, that i, henry de roseye, have stolen an ox and a cow of the widow of john welsshe of retherfeld; and i have stolen eighteen beasts from divers men in the said county. and i acknowledge that i have feloniously killed roger le swan in the town of strete in the hundred of strete in the rape [a division of a county] of lewes and that i am a felon of the lord king of england. and because i have committed many ill deeds and thefts in his land, i abjure the land of the lord edward king of england, and [i acknowledge] that i ought to hasten to the port of hastings, which thou hast given me, and that i ought not to depart from the way, and if i do so i am willing to be taken as a thief and felon of the lord king, and that at hastings i will diligently seek passage, and that i will not wait there save for the flood and one ebb if i can have passage; and if i cannot have passage within that period, i will go up to the knees into the sea every day, endeavoring to cross; and unless i can do so within forty days, i will return at once to the church, as a thief and a felon of the lord king, so help me god." property damage by a tenant of a london building was assessed in a case: "john parker, butcher, was summoned to answer clement spray in a plea of trespass, wherein the latter complained that the said john, who had hired a tavern at the corner of st. martin- le-grand from him for fifteen months, had committed waste and damage therein, although by the custom of the city no tenant for a term of years was entitled to destroy any portion of the buildings or fixtures let to him. he alleged that the defendant had taken down the door post of the tavern and also of the shop, the boarded door of a partition of the tavern, a seat in the tavern, a plastered partition wall, the stone flooring in the chamber, the hearth of the kitchen, and the mantelpiece above it, a partition in the kitchen, two doors and other partitions, of a total value of s. four pounds, s. d., and to his damage, s. [ pounds]. the defendant denied the trespass and put himself on the country. afterwards a jury [panel]... found the defendant guilty of the aforesaid trespass to the plaintiff's damage, d. judgment was given for that amount and a fine of s. to the king, which the defendant paid immediately in court." the innkeeper's duty to safeguard the person and property of his lodgers was applied in this case: "john trentedeus of southwark was summoned to answer william latymer touching a plea why, whereas according to the law and custom of the realm of england, innkeepers who keep a common inn are bound to keep safely by day and by night without reduction or loss men who are passing through the parts where such inns are and lodging their goods within those inns, so that, by default of the innkeepers or their servants, no damage should in any way happen to such their guests ... on monday after the feast of the purification of the virgin mary in the fourth year of the now king by default of the said john, certain malefactors took and carried away two small portable chests with s. and also with charters and writings, to wit two writings obligatory, in the one of which is contained that a certain robert bour is bound to the said william in , s. and in the other that a certain john pusele is bound to the same william in s. pounds ... and with other muniments [writings defending claims or rights] of the same william, to wit his return of all the writs of the lord king for the counties of somerset and dorset, whereof the same william was then sheriff, for the morrow of the purification of the blessed mary the virgin in the year aforesaid, as well before the same lord the king in his chancery and in his bench as before the justices of the king's common bench and his barons of his exchequer, returnable at westminster on the said morrow, and likewise the rolls of the court of cranestock for all the courts held there from the first year of the reign of the said lord the king until the said monday, contained in the same chests being lodged within the inn of the same john at southwark and the said john ... says that on the said monday about the second hour after noon the said william entered his inn to be lodged there, and at once when he entered, the same john assigned to the said william a certain chamber being in that inn, fitting for his rank, with a door and a lock affixed to the same door with sufficient nails, so that he should lie there and put and keep his things there, and delivered to the said william the key to the door of the said chamber, which chamber the said william accepted... william says that ... when the said john had delivered to him the said chamber and key as above, the same william, being occupied about divers businesses to be done in the city of london, went out from the said inn into the city to expedite the said businesses and handed over the key of the door to a certain servant of the said william to take care of in meantime, ordering the servant to remain in the inn meanwhile and to take care of his horses there; and afterwards, when night was falling, the same william being in the city and the key still in the keeping of the said servant, the wife of the said john called unto her into her hall the said servant who had the key, giving him food and drink with a merry countenance and asking him divers questions and occupying him thus for a long time, until the staple of the lock of the door aforesaid was thrust on one side out of its right place and the door of the chamber was thereby opened and his goods, being in the inn of the said john, were taken and carried off by the said malefactors ... the said john says ...[that his wife did not call the servant into the hall, but that] when the said servant came into the said hall and asked his wife for bread and ale and other necessaries to be brought to the said chamber of his master, his wife immediately and without delay delivered to the same servant the things for which he asked ... protesting that no goods of the same william in the said inn were carried away by the said john his servant or any strange malefactors other than the persons of the household of the said william." on the coram rege roll of is a case on the issue of whether a court-crier can be seized by officers of a staple: "edmund hikelyng, 'criour', sues william baddele and wife maud, john olney, and william knyghtbrugge for assault and imprisonment at westminster, attacking him with a stick and imprisoning him for one hour on wednesday before st. martin, richard ii. baddele says mark faire of winchester was prosecuting a bill of debt for s. against edmund and john more before william brampton, mayor of the staple of westminster, and thomas alby and william askham, constables of the said staple, and on that day the mayor and the constables issued a writ of capias against edmund and john to answer mark and be before the mayor and the constables at the next court. this writ was delivered to baddele as sergeant of the staple, and by virtue of it he took and imprisoned edmund in the staple. maud and the others say they aided baddele by virtue of the said writ. edmund does not acknowledge baddele to be sergeant of the staple or mark a merchant of the staple or that he was taken in the staple. he is minister of the king's court of his bench and is crier under thomas thorne, the chief crier, his master. every servant of the court is under special protection while doing his duty or on his way to do it. on the day in question, he was at westminster carrying his master's staff of office before hugh huls, one of the king's justices, and william took him in the presence of the said justice and imprisoned him. the case is adjourned for consideration from hilary to easter." a law of equity began to be developed from decisions by the chancellor in his court of conscience from around . one such case was that of godwyne v. profyt sometime after . this petition was made to the chancellor: to the most reverend father in god, and most gracious lord, the bishop of exeter, chancellor of england. thomas godwyne and joan his wife, late wife of peter at more of southwerk, most humbly beseech that, whereas at michaelmas in the th year of our most excellent lord king richard who now is, the said peter at more in his lifetime enfeoffed thomas profyt parson of st. george's church southwerk, richard saundre, and john denewey, in a tenement with the appurtenances situated in southwerk and acres of land acres of meadow in the said parish of st. george and in the parish of our lady of newington, on the conditions following, to wit, that the said three feoffees should, immediately after the death of the said peter, enfeoff the said joan in all the said lands and tenements with all their appurtenances for the life of the said joan, with remainder after her decease to one nicholas at more, brother of the said peter, to hold to him and the heirs of his body begotten, and for default of issue, then to be sold by four worthy people of the said parish, and the money to be received for the same to be given to holy church for his soul; whereupon the said peter died. and after his death two of the said feoffees, richard and john, by the procurement of one john solas, released all their estate in the said lands and tenements to the said thomas profyt, on the said conditions, out of the great trust that they had in the said thomas profyt, who was their confessor, that he would perform the will of the said peter [at more] in the form aforesaid; and this well and lawfully to do the said thomas profyt swore on his verbum dei and to perform the said conditions on all points. and since the release was so made, the said thomas profyt, through the scheming and false covin of the said john solas, has sold all the lands and tenements aforesaid to the same john solas for ever. and the said john solas is bound to the said thomas profyt in pounds by a bond to make defence of the said lands and tenements by the bribery (?) and maintenance against every one; and so by their false interpretation and conspiracy the said joan, nicholas, and holy church are like to be disinherited and put out of their estate and right, as is abovesaid, for ever, tortiously, against the said conditions, and contrary to the will of the said peter [at more]. may it please your most righteous lordship to command the said thomas profyt, richard saundre, and john denewy to come before you, and to examine them to tell the truth of all the said matter, so that the said joan, who has not the wherewithal to live, may have her right in the said lands and tenements, as by the examination before you, most gracious lord, shall be found and proved; for god and in way of holy charity. - - - chapter - - - - the times: - - this period, which begins with the reign of the usurper king, henry iv, is dominated by war: the last half of the year war with france, which, with the help of joan of arc, took all english land on the continent except the port of calais, and the war of the roses over the throne in england. the ongoing border fights with wales and scotland were fought by england's feudal army. but for fighting in france, the king paid barons and earls to raise their own fighting forces. when they returned to england, they fought to put their candidate on its throne, which had been unsteady since its usurpation by henry iv. all the great houses kept bands of armed retainers. these retainers were given land or pay or both as well as liveries [uniforms or badges] bearing the family crest. in the system of "livery and maintenance", if the retainer was harassed by the law or by enemies, the lord protected him. the liveries became the badges of the factions engaged in the war of the roses. and the white rose was worn by the supporters of the house of york, and the red rose by supporters of the house of lancaster for the crown. great lords fought each other for property and made forcible entries usurping private property. shakespeare's histories deal with this era. in both wars, the musket was used as well as the longbow. to use it, powder was put into the barrel, then a ball rammed down the barrel with a rod, and then the powder lit by a hot rod held with one hand while the other hand was used to aim the musket. cannon were used to besiege castles and destroy their walls, so many castles were allowed to deteriorate. the existence of cannon also limited the usefulness of town walls for defense. but townspeople did not take part in the fighting. since the power of the throne changed from one faction to another, political and personal vindictiveness gave rise to many bills of attainder that resulted in lords being beheaded and losing their lands to the king. however, these were done by the form of law; there were no secret executions in england. families engaged in blood feuds. roving bands ravaged the country, plundering the people, holding the forests, and robbing collectors of crown revenue. some men made a living by fighting for others in quarrels. individual life and property were insecure. whole districts were in a permanent alarm of riot and robbery. the roads were not safe. nobles employed men who had returned from fighting in war to use their fighting skill in local defense. there was fighting between lords and gangs of ruffians holding the roads, breaking into and seizing manor houses, and openly committing murders. peace was never well-kept nor was law ever well-executed, though fighting was suspended by agreement during the harvest. local administration was paralyzed by party faction or lodged in some great lord or some clique of courtiers. the elections of members to parliament was interfered with and parliament was rarely held. barons and earls fought their disputes in the field rather than in the royal courts. litigation was expensive, so men relied increasingly on the protection of the great men of their neighborhood and less on the king's courts for the safety of their lives and land. local men involved in court functions usually owed allegiance to a lord which compromised the exercise of justice. men serving in an assize often lied to please their lord instead of telling the truth. lords maintained, supported, or promoted litigation with money or aid supplied to one party to the detriment of justice. it was not unusual for lords to attend court with a great force of retainers behind them. many justices of the peace wore liveries of magnates and accepted money from them. royal justices were flouted or bribed. the king's writ was denied or perverted. for - s., a lord could have the king instruct his sheriff to impanel a jury which would find in his favor. a statute against riots, forcible entries, and, excepting the king, magnates' liveries of uniform, food, and badges to their retainers, except in war outside the nation, was passed, but was difficult to enforce because the offenders were lords, who dominated the parliament and the council. with men so often gone to fight, their wives managed the household alone. the typical wife had maidens of equal class to whom she taught household management, spinning, weaving, carding wool with iron wool-combs, heckling flax, embroidery, and making garments. there were foot-treadles for spinning wheels. she taught the children. each day she scheduled the activities of the household including music, conversation, dancing, chess, reading, playing ball, and gathering flowers. she organized picnics, rode horseback and went hunting, hawking to get birds, and hare-ferreting. she was nurse to all around her. if her husband died, she usually continued in this role because most men named their wife as executor of their will with full power to act as she thought best. the wives of barons shared their right of immunity from arrest by the processes of common law and to be tried by their peers. for ladies, close-fitting jackets came to be worn over close- fitting long gowns with low, square-cut necklines and flowing sleeves, under which was worn a girdle or corset of stout linen reinforced by stiff leather or even iron. her skirt was provocatively slit from knee to ankle. all her hair was confined by a hair net. headdresses were very elaborate and heavy, trailing streamers of linen. some were in the shape of hearts, butterflies, crescents, double horns, steeples, or long cones. men also wore hats rather than hoods. they wore huge hats of velvet, fur, or leather. their hair was cut into a cap-like shape on their heads, and later was shoulder-length. they wore doublets with thick padding over the shoulders or short tunics over the trucks of their bodies and tightened at the waist to emphasize the shoulders. their collars were high. their sleeves were long concoctions of velvet, damask, and satin, sometimes worn wrapped around their arms in layers. their legs were covered with hosen, often in different colors. codpieces worn between the legs emphasized the sensuality of the age as did ladies' tight and low- cut gowns. men's shoes were pointed with upward pikes at the toes that impeded walking. at another time, their shoes were broad with blunt toes. both men and women wore much jewelry and ornamentation. but, despite the fancy dress, the overall mood was a macabre preoccupation with mortality, despair, and a lack of confidence in the future. cannon and mercenaries had reduced the military significance of knighthood, so its chivalric code deteriorated into surface politeness, ostentation, and extravagance. master and servants ceased to eat together in the same hall, except for great occasions, on feast days, and for plays. the lord, and his lady, family, and guests took their meals in a great chamber, usually up beneath the roof next to the upper floor of the great hall. the chimney-pieces and windows were often richly decorated with panelled stonework, tracery and carving. there was often a bay or oriel window with still expensive glass. tapestries, damask, and table-cloths covered the tables. there was much formality and ceremonial ritual, more elaborate than before, during dinners at manorial households, including processions bringing and serving courses, and bowing, kneeling, and curtseying. there were many courses of a variety of meats, fish, stews, and soups, with a variety of spices and elaborately cooked. barons, knights, and their ladies sat to the right of the lord above the salt and were served by the lord's sewer and carver and gentlemen waiters; their social inferiors such as "gentlemen of worship" sat below the salt and were served by another sewer and yeomen. the lord's cupbearer looked after the lord alone. a knights table was waited on by yeomen. the gentlemen officers, gentlemen servants and yeomen officers were waited on by their own servants. the amount of food dished out to each person varied according to his rank. the almoner said grace and distributed the left-overs to the poor gathered at the gate. the superior people's hands were washed by their inferiors. lastly, the trestle tables were removed while sweet wine and spices were consumed standing. then the musicians were called into the hall and dancing began. the lord usually slept in a great bed in this room. the standard number of meals was three: breakfast, dinner, and supper. the diet of an ordinary family such as that of a small shopholder or yeoman farmer included beef, mutton, pork, a variety of fish, both fresh and salted, venison, nuts, peas, oatmeal, honey, grapes, apples, pears, and fresh vegetables. cattle and sheep were driven from wales to english markets. this droving lasted for five centuries. many types of people besides the nobility and knights now had property and thus were considered gentry: female lines of the nobility, merchants and their sons, attorneys, auditors, squires, and peasant-yeomen. the burgess grew rich as the knight dropped lower. the great merchants lived in mansions which could occupy whole blocks. typically, there would be an oak-paneled great hall, with adjoining kitchen, pantry, and buttery on one end and a great parlor to receive guests, bedrooms, wardrobes, servants' rooms, and a chapel on the other end or on a second floor. the beds were surrounded by heavy draperies to keep out cold drafts. in towns these mansions were entered through a gate through a row of shops on the street. a lesser dwelling would have these rooms on three floors over a shop on the first floor. an average londoner would have a shop, a storeroom, a hall, a kitchen, and a buttery on the first floor, and three bedrooms on the second floor. artisans and shopkeepers of more modest means lived in rows of dwellings, each with a shop and small storage room on the first floor, and a combination parlor-bedroom on the second floor. the humblest residents crowded their shop and family into one by foot room for rent of a few shillings a year. all except the last would also have a small garden. the best gardens had a fruit tree, herbs, flowers, a well, and a latrine area. there were common and public privies for those without their own. kitchen slops and casual refuse continued to be thrown into the street. floors of stone or planks were strewn with rushes. there was some tile flooring. most dwellings had glass windows. candles were used for lighting at night. torches and oil-burning lanterns were portable lights. furnishings were still sparse. men sat on benches or joint stools and women sat on cushions on the floor. hall and parlor had a table and benches and perhaps one chair. bedrooms had a curtained feather bed with pillows, blankets, and sheets. clothes were stored in a chest, sometimes with sweet-smelling herbs such as lavender, rosemary, and southernwood. better homes had wall hanging and cupboards displaying plate. laundresses washed clothes in the streams, rivers, and public conduits. country peasants still lived in wood, straw, and mud huts with earth floors and a smoky hearth in the center or a kitchen area under the eaves of the hut. in , bricks began to be manufactured in the nation and so there was more use of bricks in buildings. chimneys were introduced into manor houses where stone had been too expensive. this was necessary if a second floor was added, so the smoke would not damage the floor above it and would eventually go out of the house. nobles and their retinue moved from manor to manor, as they had for centuries, to keep watch upon their lands and to consume the produce thereof; it was easier to bring the household to the estate than to transport the yield of the estate to the household. also, at regular intervals sewage had to be removed from the cellar pits. often a footman walked or ran on foot next to his master or mistress when they rode out on horseback or in a carriage. he was there primarily for prestige. jousting tournaments were held for entertainment purposes only and were followed by banquets of several courses of food served on dishes of gold, silver, pewter, or wood on a linen cloth covering the table. hands were washed before and after the meal. people washed their faces every morning after getting up. teeth were cleaned with powders. fragrant leaves were chewed for bad breath. garlic was used for indigestion and other ailments. feet were rubbed with salt and vinegar to remove calluses. good manners included not slumping against a post, fidgeting, sticking one's finger into one's nose, putting one's hands into one's hose to scratch the privy parts, spitting over the table or too far, licking one's plate, picking one's teeth, breathing stinking breath into the face of the lord, blowing on one's food, stuffing masses of bread into one's mouth, scratching one's head, loosening one's girdle to belch, and probing one's teeth with a knife. fishing and hunting were reserved for the nobility rather than just the king. as many lords became less wealthy because of the cost of war, some peasants, villein and free, became prosperous, especially those who also worked at a craft, e.g. butchers, bakers, smiths, shoemakers, tailors, carpenters, and clothworkers. an agricultural slump caused poorer soils to fall back into waste. the better soils were leased by peasants, who, with their families, were in a better position to farm it than a great lord, who found it hard to hire laborers at a reasonable cost. further, peasants' sheep, hens, pigs, ducks, goats, cattle, bees, and crop made them almost self-sufficient in foodstuffs. they lived in a huddle of cottages, pastured their animals on common land, and used common meadows for hay-making. they subsisted mainly on boiled bacon, an occasional chicken, worts and beans grown in the cottage garden, and cereals. they wore fine wool cloth in all their apparel. brimless hats were replacing hoods. they had an abundance of bed coverings in their houses. and they had more free time. village entertainment included traveling jesters, acrobats, musicians, and bear-baiters. playing games and gambling were popular pastimes. most villeins were now being called "customary tenants" or "copy- holders" of land because they held their acres by a copy of the court-roll of the manor, which listed the number of teams, the fines, the reliefs, and the services due to the lord for each landholder. the chancery court interpreted many of these documents to include rights of inheritance. the common law courts followed the lead of the chancery and held that copyhold land could be inherited as was land at common law. evictions by lords decreased. the difference between villein and freeman lessened but landlords usually still had profits of villein bondage, such as heriot, merchet, and chevage. a class of laborers was arising who depended entirely on the wages of industry for their subsistence. the cloth workers in rural areas were isolated and weak and often at the mercy of middle-men for employment and the amount of their wages. when rural laborers went to towns to seek employment in the new industries, they would work at first for any rate. this deepened the cleavage of the classes in the towns. the artificers in the town and the cottagers and laborers in the country lived from hand to mouth, on the edge of survival, but better off than the old, the diseased, the widows, and the orphans. however, the s were the most prosperous time for laborers considering their wages and the prices of food. meat and poultry were plentiful and grain prices low. social mobility was most possible in the towns, where distinctions were usually only of wealth. so a poor apprentice could aspire to become a master, a member of the livery of his company, a member of the council, an alderman, a mayor, and then an esquire for life. the distance between baron and a country knight and between a yeoman and knight was wider. manor custom was strong. but a yeoman could give his sons a chance to become gentlemen by entering them in a trade in a town, sending them to university, or to war. every freeman was to some extent a soldier, and to some extent a lawyer, serving in the county or borough courts. a burgess, with his workshop or warehouse, was trained in warlike exercises, and he could keep his own accounts, and make his own will and other legal documents, with the aid of a scrivener or a chaplain, who could supply an outline of form. but law was growing as a profession. old-established london families began to choose the law as a profession for their sons, in preference to an apprenticeship in trade. many borough burgesses in parliament were attorneys. in london, shopkeepers appealed to passers-by to buy their goods, sometimes even seizing people by the sleeve. the drapers had several roomy shops containing shelves piled with cloths of all colors and grades, tapestries, pillows, blankets, bed draperies, and 'bankers and dorsers' to soften hard wooden benches. a rear storeroom held more cloth for import or export. many shops of skinners were on fur row. there were shops of leather-sellers, hosiers, gold and silver cups, and silks. at the stocks market were fishmongers, butchers, and poulterers. london grocers imported spices, canvas, ropery, potions, unguents, soap, confections, garlic, cabbages, onions, apples, oranges, almonds, figs, dates, raisins, dye-stuffs, woad, madder (plant for medicine and dye), scarlet grains, saffron, iron, and steel. they were retailers as well as wholesalers and had shops selling honey, licorice, salt, vinegar, rice, sugar loaves, syrups, spices, garden seeds, dyes, alum, soap, brimstone, paper, varnish, canvas, rope, musk, incense, treacle of genoa, and mercury. the grocers did some money-lending, usually at % interest. the guilds did not restrict themselves to dealing in the goods for which they had a right of inspection, and so many dealt in wine that it was a medium of exchange. there was no sharp distinction between retail and wholesale trading. in london, grocers sold herbs for medicinal as well as eating purposes. breadcarts sold penny wheat loaves. foreigners set up stalls on certain days of the week to sell meat, canvas, linen, cloth, ironmongery, and lead. there were great houses, churches, monasteries, inns, guildhalls, warehouses, and the king's beam for weighing wool to be exported. in , the guildhall of london was built through contributions, proceeds of fines, and lastly, to finish it, special fees imposed on apprenticeships, deeds, wills, and letters-patent. the mercers and goldsmiths were in the prosperous part of town. the goldsmiths' shops sold gold and silver plate, jewels, rings, water pitchers, drinking goblets, basins to hold water for the hands, and covered saltcellars. the grain market was on cornhill. halfway up the street, there was a supply of water which had been brought up in pipes. on the top of the hill was a cage where riotous folk had been incarcerated by the night watch and the stocks and pillory, where fraudulent schemers were exposed to ridicule. no work was to be done on sundays, but some did work surreptitiously. the barbers kept their shops open in defiance of the church. outside the london city walls were tenements, the smithfield cattle market, westminster hall, green fields of crops, and some marsh land. on the thames river to london were large ships with cargoes; small boats rowed by tough boatmen offering passage for a penny; small private barges of great men with carved wood, gay banners, and oarsmen with velvet gowns; the banks covered with masts and tackle; the nineteen arch london bridge supporting a street of shops and houses and a drawbridge in the middle; quays; warehouses, and great cranes lifting bales from ship to wharf. merchant guilds which imported or exported each had their own wharves and warehouses. downstream, pirates hung on gallows at the low-water mark to remain until three tides had overflowed their bodies. a climate change of about / degree celcius lower caused the thames to regularly freeze over in winter. the large scale of london trade promoted the specialization of the manufacturer versus the merchant versus the shipper. merchants had enough wealth to make loans to the government or for new commercial enterprises. local reputation on general, depended upon a combination of wealth, trustworthiness of character, and public spirit; it rose and fell with business success. some london merchants were knighted by the king. many bought country estates and turned themselves into gentry. the king granted london all common soils, improvements, wastes, streets, and ways in london and in the adjacent waters of the thames river and all the profits and rents to be derived therefrom. later the king granted london the liberty to purchase lands and tenements worth up to , s. yearly. with this power, london had obtained all the essential features of a corporation: a seal, the right to make by-laws, the power to purchase lands and hold them "to them and their successors" (not simply their heirs, which is an individual and hereditary succession only), the power to sue and be sued in its own name, and the perpetual succession implied in the power of filling up vacancies by election. since these powers were not granted by charters, london is a corporation by prescription. in , the liverymen obtained the right with the council to elect the mayor, the sheriff, and certain other corporate officers. many boroughs sought and obtained formal incorporation with the same essential features as london. this tied up the loose language of their early charters of liberties. often, a borough would have its own resident justice of the peace. each incorporation involved a review by a justice of the peace to make sure the charter of incorporation rule didn't conflict with the law of the nation. a borough typically had a mayor accompanied by his personal sword- bearer and serjeants-at-mace bearing the borough regalia, bailiffs, a sheriff, and chamberlains or a steward for financial assistance. at many boroughs, aldermen, assisted by their constables, kept the peace in their separate wards. there might be coroners, a recorder, and a town clerk, with a host of lesser officials including beadles, aletasters, sealers, searchers [inspectors], weighers and keepers of the market, ferrymen and porters, clock-keepers and criers, paviors [maintained the roads], scavengers and other street cleaners, gatekeepers and watchmen of several ranks and kinds. a wealthy borough would have a chaplain and two or three minstrels. the mayor replaced the bailiffs as the chief magistracy. in all towns, the wealthiest and most influential guilds were the merchant traders of mercers, drapers, grocers, and goldsmiths. from their ranks came most of the mayors, and many began to intermarry with the country knights and gentry. next came the shopholders of skinners, tailors, ironmongers, and corvisors [shoemakers]. thirdly came the humbler artisans, the sellers of victuals, small shopkeepers, apprentices, and journeymen on the rise. lastly came unskilled laborers, who lived in crowded tenements and hired themselves out. the first three groups were the free men who voted, paid scot and bore lot, and belonged to guilds. scot was a rateable proportion in the payments levied from the town for local or national purposes. merchant guilds in some towns merged their existence into the town corporation, and their guild halls became the common halls of the town, and their property became town property. in london, the cutlers' company was chartered in , the haberdashers' company in , the grocers' company in , the drapers' and cordwainers' companies in , the vintners' and brewers' companies in , the leathersellers' company in , the girdlers' company in , the armourers' and brassiers' companies in , the barbers' company in , the tallow chandlers' company in , the ironmongers' company in , the dyers' company in , the musicians' company in , the carpenters' company in , the cooks' company in , and the waxchandlers' company in . the fishmongers, which had been chartered in , were incorporated in , the cordwainers in , and the pewterers in . there were craft guilds in the towns, at least in london. in fact, every london trade of twenty men had its own guild. the guild secured good work for its members and the members maintained the reputation of the work standards of the guild. bad work was punished and night work prohibited as leading to bad work. the guild exercised moral control over its members and provided sickness and death benefits for them. there was much overlapping in the two forms of association: the craft guild and the religious fraternity. apprentices were taken in to assure an adequate supply of competent workers for the future. the standard indenture of an apprentice bound him to live in his master's house, to serve him diligently, obey reasonable commands, keep his master's secrets, protect him from injury, abstain from dice, cards and haunting of taverns, not marry, commit no fornication, nor absent himself without permission. in return the master undertook to provide the boy or girl with bed, board, and lodging and to instruct him or her in the trade, craft, or mystery. when these apprentices had enough training they were made journeymen with a higher rate of pay. journeymen traveled to see the work of their craft in other towns. those journeymen rising to master had the highest pay rate. occupations free of guild restrictions included horse-dealers, marbelers, bookbinders, jewelers, organ makers, feathermongers, pie makers, basket makers, mirrorers, quilters, and parchment makers. non-citizens of london could not be prevented from selling leather, metalwares, hay, meat, fruit, vegetables, butter, cheese, poultry, and fish from their boats, though they had to sell in the morning and sell all their goods before the market closed. in the towns, many married women had independent businesses and wives also played an active part in the businesses of their husbands. wives of well-to-do london merchants embroidered, sewed jewelry onto clothes, and made silk garments. widows often continued in their husband's businesses, such as managing a large import-export trade, tailoring, brewing, and metal shop. socially lower women often ran their own breweries, bakeries, and taverns. it was possible for wives to be free burgesses in their own right in some towns. some ladies were patrons of writers. some women were active in prison reform in matters of reviews to insure that no man was in gaol without due cause, overcharges for bed and board, brutality, and regulation of prisoners being placed in irons. many men and women left money in their wills for food and clothing for prisoners, especially debtors. wills often left one-third of the wealth to the church, the poor, prisoners, infirmaries, young girls' education; road, wall, and bridge repair; water supply, markets and almshouses. some infirmaries were for the insane, who were generally thought to be possessed by the devil or demons. their treatment was usually by scourging the demons out of their body by flogging. if this didn't work, torture could be used to drive the demons from the body. the guilds were being replaced by associations for the investment of capital. in associations, journeymen were losing their chance of rising to be a master. competition among associations was starting to supplant custom as the mainspring of trade. the cloth exporters, who were mostly mercers, were unregulated and banded together for mutual support and protection under the name of merchant adventurers of london. the merchant adventurers was chartered in . it was the first and a prototype of regulated companies. that is the company regulated the trade. each merchant could ship on his own a certain number of cloths each year (the number depending on the length of his membership in the company) and sell them himself or by his factor at the place where the company had privileges of market. strict rules governed the conduct of each member. he was to make sales only at certain hours on specified days. all disagreements were to be settled by the company's governor, or his deputy in residence, and those officials dealt with such disputes as arose between members of the company and continental officials and buyers. a share in the ownership of one of their vessels was a common form of investment by prosperous merchants. by , the merchant adventurers were dealing in linen cloths, buckrams [a stiffened, coarse cloth], fustians [coarse cloth made of cotton threads going in one direction and linen threads the other], satins, jewels, fine woolen and linen wares, threads, potions, wood, oil, wine, salt, copper, and iron. they began to replace trade by alien traders. the history of the "merchant adventurers" was associated with the growth of the mercantile system for more than years. it eventually replaced the staples system. paved roads in towns were usually gravel and sometimes cobble. they were frequently muddy because of rain and spillage of water being carried. iron-shod wheels and overloaded carts made them very uneven. london was the first town with paviors. they cleaned and repaired the streets, filling up pot-holes with wood chips and compacting them with hand rams. the paviors were organized as a city company in . about , towns besides london began appointing salaried road paviors to repair roads and collect their expenses from the householders because the policy of placing the burden on individual householders didn't work well. london streets were lighted at night by public lanterns, under the direction of the mayor. the residents were to light these candle lanterns in winter from dusk to the pm curfew. there were fire-engines composed of a circular cistern with a pump and six feet of inflexible hose on wheels pulled by two men on one end and pushed by two men on the other end. in the city walls were rebuilt with a weekly tax of d. per head. in schools, there was a renaissance of learning from original sources of knowledge written in greek and rebirth of the greek pursuit of the truth and scientific spirit of inquiry. there was a striking increase in the number of schools founded by wealthy merchants or town guilds. every cathedral, monastery, and college had a grammar school. merchants tended to send their sons to private boarding schools, instead of having them tutored at home as did the nobility. well-to-do parents still sent sons to live in the house of some noble to serve them as pages in return for being educated with the noble's son by the household priest. they often wore their master's coat of arms and became their squires as part of their knightly education. sometimes girls were sent to live in another house to take advantage to receive education from a tutor there under the supervision of the lady of the house. every man, free or villein, could send his sons and daughters to school. in every village, there were some who could read and write. in , lincoln's inn required barristers normally resident in london and the county of middlesex to remain in residence and pay commons during the periods between sessions of court and during vacations, so that the formal education of students would be continuous. in , a similar requirement was extended to all members. the book "sir gawain and the green knight" was written about an incident in the court of king arthur and queen guenevere in which a green knight challenges arthur's knights to live up to their reputation for valor and awesome deeds. the knight gawain answers the challenge, but is shown that he could be false and cowardly when death seemed to be imminent. thereafter, he wears a green girdle around his waist to remind him not to be proud. other literature read included "london lickpenny", a satire on london and its expensive services and products, "fall of princes" by john lydgate, social history by thomas hoccleve, "the cuckoo and the nightengale", and "the flower and leaf" on morality as secular common sense. king james i of scotland wrote a book about how he fell in love. chaucer, cicero, ovid, and aesops's fables were widely read. malory's new version of the arthurian stories was popular. margery kempe wrote the first true autobiography. she was a woman who had a normal married life with children, but one day had visions and voices which led her to leave her husband to take up a life of wandering and praying in holy possession. there were religious folk ballads such as "the cherry tree carol", about the command of jesus from mary's womb for a cherry tree to bend down so that mary could have some cherries from it. the common people developed ballads, e.g. about their love of the forest, their wish to hunt, and their hatred of the forest laws. about % of londoners could read english. books were bought in london in such quantities by that the craft organizations of text-letter writers, illuminators, book-binders, and book sellers was sanctioned by ordinance. "unto the honorable lords, and wise, the mayor and aldermen of the city of london, pray very humbly all the good folks, freemen of the said city, of the trades of writers of text-letter, limners [illuminator of books], and other folks of london who are wont to bind and to sell books, that it may please your great sagenesses to grant unto them that they may elect yearly two reputable men, the one a limner, the other a text- writer, to be wardens of the said trades, and that the names of the wardens so elected may be presented each year before the mayor for the time being, and they be there sworn well and diligently to oversee that good rule and governance is had and exercised by all folks of the same trades in all works unto the said trades pertaining, to the praise and good fame of the loyal good men of the said trades and to the shame and blame of the bad and disloyal men of the same. and that the same wardens may call together all the men of the said trades honorably and peacefully when need shall be, as well for the good rule and governance of the said city as of the trades aforesaid. and that the same wardens, in performing their due office, may present from time to time all the defaults of the said bad and disloyal men to the chamberlain at the guildhall for the time being, to the end that the same may there, according to the wise and prudent discretion of the governors of the said city, be corrected, punished, and duly redressed. and that all who are rebellious against the said wardens as to the survey and good rule of the same trades may be punished according to the general ordinance made as to rebellious persons in trades of the said city [fines and imprisonment]. and that it may please you to command that this petition, by your sagenesses granted, may be entered of record for time to come, for the love of god and as a work of charity." gutenberg's printing press, which used movable type of small blocks with letters on them, was brought to london in by a mercer: william caxton. it supplemented the text-writer and monastic copyist. it was a wood and iron frame with a mounted platform on which were placed small metal frames into which words with small letters of lead had been set up. each line of text had to be carried from the type case to the press. beside the press were pots filled with ink and inking balls. when enough lines of type to make a page had been assembled on the press, the balls would be dipped in ink and drawn over the type. then a sheet of paper would be placed on the form and a lever pulled to press the paper against the type. linen usually replaced the more expensive parchment for the book pages. the printing press made books more accessible to all literate people. caxton printed major english texts and some translations from french and latin. he commended different books to various kinds of readers, for instance, for gentlemen who understand gentleness and science, or for ladies and gentlewomen, or to all good folk. there were many cook books in use. there were convex eyeglasses for reading and concave ones for distance to correct near-sightedness. the first public library in london was established from a bequest in a will in . many carols were sung at the christian festival of christmas. ballads were sung on many features of social life of this age of disorder, hatred of sheriffs, but faith in the king. the legend of robin hood was popular. town miracle plays on leading incidents of the bible and morality plays were popular. vintners portrayed the miracle of cana where water was turned into wine and goldsmiths ornately dressed the three kings coming from the east. in york, the building of noah's ark was performed by the shipwrights and the flood performed by the fishery and mariners. short pantomimes and disguising, forerunners of costume parties, were good recreation. games of cards became popular as soon as cards were introduced. the king, queen, and jack were dressed in contemporary clothes. men bowled, kicked footballs, and played tennis. in london, christmas was celebrated with masques and mummings. there was a great tree in the main market place and evergreen decorations in churches, houses, and streets. there were also games, dances, street bonfires in front of building doors, and general relaxation of social controls. sometimes there was drunken licentiousness and revelry, with peasants gathering together to make demands of lords for the best of his goods. may day was celebrated with crowns and garlands of spring flowers. the village may day pageant was often presided over by robin hood and maid marion. people turned to mysticism to escape from the everyday violent world. they read works of mystics, such as "scale of perfection" and "cloud of unknowing", the latter describing how one may better know god. they believed in magic and sorcery, but had no religious enthusiasm because the church was engendering more disrespect. monks and nuns had long ago resigned spiritual leadership to the friars; now the friars too lost much of their good reputation. the monks became used to life with many servants such as cooks, butlers, bakers, brewers, barbers, laundresses, tailors, carpenters, and farm hands. the austerity of their diet had vanished. the schedule of divine services was no longer followed by many and the fostering of learning was abandoned. into monasteries drifted the lazy and miserable. nunneries had become aristocratic boarding houses. the practice of taking sanctuary was abused; criminals and debtors sought it and were allowed to overstay the -day restriction and to leave at night to commit robberies. there were numerous chaplains, who were ordained because they received pay from private persons for saying masses for the dead; having to forego wife and family, they had much leisure time for mischief. church courts became corrupt, but jealously guarded their jurisdiction from temporal court encroachment. peter's pence was no longer paid by the people, so the burden of papal exaction fell wholly on the clergy. but the church was rich and powerful, paying almost a third of the whole taxation of the nation and forming a majority in the house of lords. many families had kinsmen in the clergy. even the lowest cleric or clerk could read and write in latin. people relied on saint's days as reference points in the year, because they did not know dates of the year. but townspeople knew the hour and minute of each day, because mechanical clocks were in all towns and in the halls of the well-to-do. this increased the sense of punctuality and highered standards of efficiency. a linguistic unity and national pride was developing. london english became the norm and predominated over rural dialects. important news was announced and spread by word of mouth in market squares and sometimes in churches. as usual, traders provided one of the best sources of news; they maintained an informal network of speedy messengers and accurate reports because political changes so affected their ventures. news also came from pedlars, who visited villages and farms to sell items that could not be bought in the local village. these often included scissors, eyeglasses, colored handkerchiefs, calendars, fancy leather goods, watches, and clocks. peddling was fairly profitable because of the lack of competition. but pedlars were often viewed as tramps and suspected of engaging in robbery as well as peddling. a royal post service was established by relays of mounted messengers. the first route was between london and the scottish border, where there were frequent battles for land between the scotch and english. the inland roads from town to town were still rough and without signs. a horseman could make up to miles a day. common carriers took passengers and parcels from various towns to london on scheduled journeys. now the common yeoman could order goods from the london market, communicate readily with friends in london, and receive news of the world frequently. trade with london was so great and the common carrier so efficient in transporting goods that the medieval fair began to decline. first the grocers and then the mercers refused to allow their members to sell goods at fairs. there was much highway robbery. most goods were still transported by boats along the coasts, with trading at the ports. embroidery was exported. imported were timber, pitch, tar, potash [for cloth-dying], furs, silk, satin, gold cloth, damask cloth, furred gowns, gems, fruit, spices, and sugar. imports were restricted by national policy for the purpose of protecting native industries. english single-masted ships began to be replaced by two or three masted ships with high pointed bows to resist waves and sails enabling the ship to sail closer to the wind. tuns was the usual carrying capacity. the increase in trade made piracy, even by merchants, profitable and frequent until merchant vessels began sailing in groups for their mutual protection. the astrolabe was used for navigation by the stars. consuls were appointed to assist english traders abroad. henry iv appointed the first admiral of the entire nation and resolved to create a national fleet of warships instead of using merchant ships. in , the war navy had ships. in , portsmouth was fortified as a naval base. henry v issued the orders that formed the basic law of english admiralty and appointed surgeons to the navy and army. he was the last true warrior king. for defense of the nation, especially the safeguard of the seas, parliament allotted the king for life, s. for every tun of wine imported and an additional s. for every tun of sweet wine imported. from about , tunnage on wine and poundage on merchandise were duties on goods of merchants which were regularly granted by parliament to the king for life for upkeep of the navy. before this time, such duties had been sporadic and temporary. the most common ailments were eye problems, aching teeth, festering ears, joint swelling and sudden paralysis of the bowels. epidemics broke out occasionally in the towns in the summers. the plague swept london in and the nation in , , and . leprosy disappeared. infirmaries were supported by a tax of the king levied on nearby counties. the walls, ditches, gutters, sewers, and bridges on waterways and the coast were kept in repair by laborers hired by commissions appointed by the chancellor. those who benefited from these waterways were taxed for the repairs in proportion to their use thereof. alabaster was sculptured into tombs surmounted with a recumbent effigy of the deceased, and effigies of mourners on the sides. few townsmen choose to face death alone and planned memorial masses to be sung to lift his soul beyond purgatory. chantries were built by wealthy men for this purpose. chemical experimentation was still thought to be akin to sorcery, so was forbidden by king henry iv in . gold was minted into coins: noble, half noble, and farthing. king henry iv lost power to the commons and the lords because he needed revenue from taxes and as a usurper king, he did not carry the natural authority of a king. the commons acquired the right to elect its own speaker. the lords who helped the usurpation felt they should share the natural power of the kingship. the council became the instrument of the lords. also, the commons gained power compared to the nobility because many nobles had died in war. the consent of the commons to legislation became so usual that the justices declared that it was necessary. the commons began to see itself as representative of the entire commons of the realm instead of just their own counties. its members had the freedom to consider and debate every matter of public interest, foreign or domestic, except for church matters. the commons, the poorest of the three estates, established an exclusive right to originate all money grants to the king in . the speaker of the commons announced its money grant to the king only on the last day of the parliamentary session, after the answers to its petitions had been declared, and after the lords had agreed to the money grant. it tied its grants by rule rather than just practice to certain appropriations. for instance, tunnage and poundage were appropriated for naval defenses. wool customs went to the maintenance of calais, a port on the continent, and defense of the nation. it also put the petitions in statutory form, called "bills", to be enacted after consideration and amendment by all without alteration. each house had a right to deliberate in privacy. in the commons, members spoke in the order in which they stood up bareheaded. any member of parliament or either house or the king could initiate a bill. both houses had the power to amend or reject a bill. there were conferences between select committees of both houses to settle their differences. the commons required the appointment of auditors to audit the king's accounts to ensure past grants had been spent according to their purpose. it forced the king's council appointees to be approved by parliament and to be paid salaries. about , kings' councilors were required to take an oath not to accept gifts of land, not to maintain private suits, not to reveal secrets, and not to neglect the kings' business. a quorum was fixed and rules made for removal from the council. for the next fifty years, the council was responsible both to the king and to parliament. this was the first encroachment on the king's right to summon, prorogue, or dismiss a parliament at his pleasure, determine an agenda of parliament, veto or amend its bills, exercise his discretion as to which lords he summoned to parliament, and create new peers by letters patent [official public letters]. parliament was affected by the factionalism of the times. the speaker of the commons was often an officer of some great lord. in , the retainers of the barons in parliament were forbidden to bear arms, so they appeared with clubs on their shoulders. when the clubs were forbidden, they came with stones concealed in their clothing. kings created dukes and marquesses to be peers. a duke was given creation money or allowance of pounds a year. a marquess was given pounds. these new positions could not descend to an heiress, unlike a barony or earldom. an earl was given pounds, which probably took the place of his one-third from the county. king henry vi gave the title of viscount to several people; it had an allowance of . pounds and was above baron. it allowed them to be peers. there were about peers. in king edward iv's reign, the king's retinue had about knights, squires, yeomen, clerks, grooms, and stablemen. the suitable annual expense of the household of the king was , pounds for his retinue of about people, a duke , pounds for about people, a marquess , pounds for about people, an earl , pounds for about people, a viscount , pounds for about people, a baron pounds for about people, a banneret [a knight made in the field, who had a banner] pounds for about people, a knight bachelor pounds for about people, and a squire pounds for about people. of a squire's pounds, about pounds were spent in food, repairs and furniture , on horses, hay, and carriage , on clothes, alms and oblations , wages , livery of dress , and the rest on hounds and the charges of harvest and hay-time. many servants of the household of the country gentleman were poor relations. they might by education and accomplishment rise into the service of a baron who could take him to court and make his fortune. barons' households also included steward, chaplains, treasurer, accountants, chamberlain, carvers, servers, cupbearers, pages, and even chancellor. they were given wages and clothing allowances and had meals in the hall at tables according to their degree. the authority of the king's privy seal had become a great office of state which transmitted the king's wishes to the chancery and exchequer, rather than the king's personal instrument for sealing documents. now the king used a signet kept by his secretary as his personal seal. edward iv made the household office of secretary, who had custody the king's signet seal, a public office. the secretary was generally a member of the council. edward iv invented the benevolence, a gift wrung from wealthy subjects. king edward iv introduced an elaborate spy system, the use of the rack to torture people to give information, and other interferences with justice, all of which the tudor sovereigns later used. torture was used to discover facts, especially about co-conspirators, rather than to elicit a confession, as on the continent. it was only used on prisoners held in the tower of london involved in state trials and could only be authorized by the king's closest councilors in virtue of the royal prerogative. the rack stretched the supine body by the wrists and legs with increasing agony at the joints until the limbs were dislocated. some victims were permanently crippled by it; others died on it. most told what they knew, often at the very sight of the rack. torture was forbidden in the common law, which favored an accusatorial system, in which the accuser had to prove guilt, rather than an inquisitional system, in which the accused had to prove innocence. edward iv applied martial law to ordinary cases of high treason by extending the jurisdiction of the politically- appointed high constable of england to these cases, thus depriving the accused of trial by jury. he executed many for treason and never restored their forfeited land to their families, as had been the usual practice. king richard iii prohibited the seizure of goods before conviction of felony. he also liberated the unfree villeins on royal estates. it was declared under parliamentary authority that there was a preference for the crown to pass to a king's eldest son, and to his male issue after him. formerly, a man could ascend to the throne through his female ancestry as well. - the law - the forcible entry statute is expanded to include peaceful entry with forcible holding after the justices arrived and to forcible holding with departure before the justices arrived. penalties are triple damages, fine, and ransom to the king. a forceful possession lasting three years is exempt. by common law, a tenant could not take away buildings or fixtures he built on land because it would be wasteful. this applied to agricultural fixtures, but not to other trade fixtures. also at common law, if a person had enjoyed light next to his property for at least years, no one could build up the adjacent land so that the light would be blocked. women of age fourteen or over shall have livery of their lands and tenements by inheritance without question or difficulty. purposely cutting out another's tongue or putting out another's eyes is a felony [penalty of loss of all property]. no one may keep swans unless he has lands and tenements of the estate of freehold to a yearly value of s., because swans of the king, lords, knights, and esquires have been stolen by yeomen and husbandmen. the wage ceiling for servants is: bailiff of agriculture s. d. per year, and clothing up to s., with meat and drink; chief peasant, a carter, chief shepherd s. and clothing up to s., with meat and drink; common servant of agriculture s., and clothing up to s. d.; woman servant s., and clothing up to s., with meat and drink; infant under fourteen years s., and clothing up to s., with meat and drink. such as deserve less or where there is a custom of less, that lesser amount shall be given. for laborers at harvest time: mower d. with meat and drink or d. without; reaper or carter: d. with or d. without; woman laborer and other laborers: d with and d. without. the ceiling wage rate for craftsmen per day is: free mason or master carpenter d. with meat & drink or d. without; master tiler or slater, rough mason, and mesne [intermediary] carpenter and other artificiers in building d. with meat and drink or d. without; every other laborer d. with meat and drink or d. without. in winter the respective wages were less: mason category: d. with or d. without; master tiler category: d. with or d. without; others: d. with or d. without meat and drink. any servant of agriculture who is serving a term with a master and covenants to serve another man at the end of this term and that other man shall notify the master by the middle of his term so he can get a replacement worker. otherwise, the servant shall continue to serve the first master. no man or woman may put their son or daughter to serve as an apprentice in a craft within any borough, but may send the child to school, unless he or she has land or rent to the value of s. per year. [because of scarcity of laborers and other servants of agriculture] no laborer may be hired by the week. masons may no longer congregate yearly, because it has led to violation of the statute of laborers. no games may be played by laborers because they lead to [gambling and] murders and robberies. apparel worn must be appropriate to one's status to preserve the industry of agriculture. the following list of classes shows the lowest class, which could wear certain apparel: . lords - gold cloth, gold corses, sable fur, purple silk . knights - velvet, branched satin, ermine fur . esquires and gentlemen with possessions to the value of s. per year, daughters of a person who has possessions to the value of , s. a year - damask, silk, kerchiefs up to s. in value. . esquires and gentlemen with possessions to the yearly value of s. pounds - fur of martron or letuse, gold or silver girdles, silk corse not made in the nation, kerchief up to s. d in value . men with possessions of the yearly value of s. excluding the above three classes - fustian, bustian, scarlet cloth in grain . men with possessions under the yearly value of s. excluding the first three classes - black or white lamb fur, stuffing of wool, cotton, or cadas. . yeomen - cloth up to the value of s., hose up to the value of s., a girdle with silver, kerchief up to d. . servants of agriculture, laborer, servant, country craftsman - none of the above clothes gowns and jackets must cover the entire trunk of the body, including the private parts. shoes may not have pikes over two inches. every town shall have at its cost a common balance with weights according to the standard of the exchequer. all citizens may weigh goods for free. all cloth to be sold shall be sealed according to this measure. there is a standard bushel of grain throughout the nation. there are standard measures for plain tile, roof tile, and gutter tile throughout the nation. no gold or silver may be taken out of the nation. the price of silver is fixed at s. for a pound, to increase the value of silver coinage, which has become scarce due to its higher value when in plate or masse. a designee of the king will inspect and seal cloth with lead to prevent deceit. cloth may not be tacked together before inspection. no cloth may be sold until sealed. heads of arrows shall be hardened at the points with steel and marked with the mark of the arrowsmith who made it, so they are not faulty. shoemakers and cordwainers may tan their leather, but all leather must be inspected and marked by a town official before it is sold. cordwainers shall not tan leather [to prevent deceitful tanning]. tanners who make a notorious default in leather which is found by a cordwainer shall make a forfeiture. defective embroidery for sale shall be forfeited. no fishing net may be fastened or tacked to posts, boats, or anchors, but may be used by hand, so that fish are preserved and vessels may pass. no one may import any articles which could be made in the nation, including silks, bows, woolen cloths, iron and hardware goods, harness and saddlery, except printed books. the following merchandise shall not be brought into the nation already wrought: woolen cloth or caps, silk laces, ribbons, fringes, and embroidery, gold laces, saddles, stirrups, harnesses, spurs, bridles, gridirons, locks, hammers, fire tongs, dripping pans, dice, tennis balls, points, purses, gloves, girdles, harness for girdles of iron steel or of tin, any thing wrought of any treated leather, towed furs, shoes, galoshes, corks, knives, daggers, woodknives, thick blunt needles, sheers for tailors, scissors, razors, sheaths, playing cards, pins, pattens [wooden shoes on iron supports worn in wet weather], pack needles, painted ware, forcers, caskets, rings of copper or of gilt sheet metal, chaffing dishes, hanging candlesticks, chaffing balls, mass bells, rings for curtains, ladles, skimmers, counterfeit felt hat moulds, water pitchers with wide spouts, hats, brushes, cards for wool, white iron wire, upon pain of their forfeiture. one half this forfeiture goes to the king and the other half to the person seizing the wares. no sheep may be exported, because being shorn elsewhere would deprive the king of customs. no wheat, rye, or barley may be imported unless the prices are such that national agriculture is not hurt. clothmakers must pay their laborers, such as carders and spinsters, in current coin and not in pins and girdles and the like. the term "freemen" in the magna carta includes women. the election of a knight from a county to go to parliament shall be proclaimed by the sheriff in the full county so all may attend and none shall be commanded to do something else at that time. election is to be by majority of the votes and its results will be sealed and sent to parliament. electors and electees to parliament must reside in the county or be citizens or burgesses of a borough. to be an elector to parliament, a knight must reside in the county and have a freehold of land or tenements there of the value of at least s. per year, because participation in elections of too many people of little substance or worth had led to homicides, assaults, and feuds. (these "yeomen" were about one sixth of the population. most former electors and every leaseholder and every copyholder were now excluded. those elected for parliament were still gentry chosen by substantial freeholders.) london ordinances forbade placing rubbish or dung in the thames river or any town ditch or casting water or anything else out of a window. the roads were maintained with tolls on carts and horses bringing victuals or grains into the city and on merchandise unloaded from ships at the port. no carter shall drive his cart more quickly when it is unloaded than when it is loaded. no pie bakers shall sell beef pies as venison pies, or make any meat pie with entrails. to assist the poor, bread and ale shall be sold by the farthing. desertion by a soldier is penalized by forfeiture of all land and property. the common law held that a bailee is entitled to possession against all persons except the owner of the bailed property. former justice sir thomas littleton wrote a legal textbook describing tenancies in dower; the tenures of socage, knight's service, serjeanty, and burgage; estates in fee simple, fee tail, and fee conditional; inheritance and alienation of land. for instance, "also, if feoffment be made upon such condition, that if the feoffor pay to the feofee at a certain day, etc., s. forty pounds of money, that then the feoffor may re-enter, etc., in this case the feoffee is called tenant in mortgage, ... and if he doth not pay, then the land which he puts in pledge upon condition for the payment of the money is gone from him for ever, and so dead as to the tenant, etc." joint tenants are distinguished from tenants in common by littleton thus: "joint-tenants are, as if a man be seised of certain lands or tenements, etc., and thereof enfeoffeth two, or three, or four, or more, to have and to hold to them (and to their heirs, or letteth to them) for term of their lives, or for term of another's life; by force of which feoffment or lease they are seised, such are joint-tenants. ... and it is to be understood, that the nature of joint-tenancy is, that he that surviveth shall have solely the entire tenancy, according to such estate as he hath, ..." "tenants in common are they that have lands or tenements in fee-simple, fee-tail, or for term of life, etc., the which have such lands and tenements by several title, and not by joint title, and neither of them knoweth thereof his severalty, but they ought by the law to occupy such lands or tenements in common pro indiviso [undivided], to take the profits in common. ...as if a man enfeoff two joint-tenants in fee, and the one of them alien that which to him belongeth to another in fee, now the other joint-tenant and the alienee are tenants in common, because they are in such tenements by several titles, ..." there are legal maxims and customs of ancient origin which have become well established and known though not written down as statutes. some delineated by christopher st. germain in "doctor and student" in are: . the spouse of a deceased person takes all personal and real chattels of the deceased. . for inheritance of land, if there are no descendant children, the brothers and sisters take alike, and if there are none, the next blood kin of the whole blood take, and if none, the land escheats to the lord. land may never ascend from a son to his father or mother. . a child born before espousals is a bastard and may not inherit, even if his father is the husband. . if a middle brother purchases lands in fee and dies without heirs of his body, his eldest brother takes his lands and not the younger brother. the next possible heir in line is the younger brother, and the next after him, the father's brother. . for lands held in socage, if the heir is under , the next friend to the heir, to whom inheritance may not descend, shall have the ward of his body and lands until the heir is , at which time the heir may enter. . for lands held by knight's service, if the heir is under , then the lord shall have the ward and marriage of the heir until the heir is , if male, or (changed to in ), if female. when of age, the heir shall pay relief. . a lease for a term of years is a real chattel rather than a free tenement, and may pass without livery of seisin. . he who has possession of land, though it is by disseisin, has right against all men but against him who has right. . if a tenant is past due his rent, the lord may distrain his beasts which are on the land. . all birds, fowls, and wild beasts of the forest and warren are excepted out of the law and custom of property. no property may be had of them unless they are tame. however, the eggs of hawks and herons and the like belong to the man whose land they are on. . if a man steals goods to the value of d., or above, it is felony, and he shall die for it. if it is under the value of d., then it is but petit larceny, and he shall not die for it, but shall be punished at the discretion of the judges. this not apply to goods taken from the person, which is robbery, a felony punishable by death. . if the son is attainted [convicted of treason or felony with the death penalty and forfeiture of all lands and goods] in the life of the father, and after he purchases his charter of pardon of the king, and after the father dies; in this case the land shall escheat to the lord of the fee, insomuch that though he has a younger brother, yet the land shall not descend to him: for by the attainder of the elder brother the blood is corrupt, and the father in the law died without heir. . a man declared outlaw forfeits his profits from land and his goods to the king. . he who is arraigned upon an indictment of felony shall be admitted, in favor of life, to challenge thirty-five inquirers (three whole inquests would have thirty-six) peremptorily. with cause, he may challenge as many as he has cause to challenge if he can prove it. such peremptory challenge shall not be admitted in a private suit. . an accessory shall not be put to answer before the principal. . if a man commands another to commit a trespass, and he does it, the one who made the command is a trespasser. . the land of every man is in the law enclosed from other, though it lies in the open field, and a trespasser in it may be brought to court. . every man is bound to make recompense for such hurt as his beasts do in the growing grain or grass of his neighbor, though he didn't know that they were there. . if two titles are concurrent together, the oldest title shall be preferred. . he who recovers debt or damages in the king's court when the person charged is not in custody, may within a year after the judgment take the body of the defendant, and commit him to prison until he has paid the debt and damages. . if the demandant or plaintiff, hanging his writ (writ pending in court), will enter into the thing demanded, his writ shall abate. . by the alienation of the tenant, hanging the writ, or his entry into religion, or if he is made a knight, or she is a woman and takes a husband hanging the writ, the writ shall not abate. . the king may disseise no man and no man may disseise the king, nor pull any reversion or remainder out of him. - judicial procedure - the prohibition against maintenance was given penalties in of s. per person for a knight or lower giving livery of cloth or hats, and of s. for the receiver of such. a person who brought such suit to court was to be given half the penalty. the justices of assize and king's bench were authorized to inquire about such practices. the statute explicitly included ladies and any writing, oath, or promise as well as indenture. excepted were guilds, fraternities, and craftsmen of cities and boroughs which were founded on a good purpose, universities, the mayor and sheriffs of london, and also lords, knights, and esquires in time of war. a penalty of one year in prison without bail was given. in , there was a penalty of s. per livery to the giver of such, s. per month to the retainer or taker of such, and s. per month to the person retained. still this law was seldom obeyed. people took grievances outside the confines of the rigid common law to the chancellor, who could give equitable remedies under authority of a statute of (described in chapter ). the chancery heard many cases of breach of faith in the "use", a form of trust in which three parties were involved: the holder of land, feofees to whom the holder had made it over by conveyance or "bargain and sale", and the beneficiary or receiver of the profits of the land, who was often the holder, his children, relatives, friends, an institution, or a corporation. this system of using land had been created by the friars to get around the prohibition against holding property. lords and gentry quickly adopted it. the advantages of the use were that ) there was no legal restriction to will away the beneficial interest of the use although the land itself could not be conveyed by will; ) it was hard for the king to collect feudal incidents because the feoffees were often unknown ) the original holder was protected from forfeiture of his land in case of conviction of treason if the crown went to someone he had not supported. chancery gave a remedy for dishonest or defaulting feofees. chancery also provided the equitable relief of specific performance in disputes over agreements, for instance, conveyance of certain land, whereas the common law courts awarded only monetary damages by the writ of covenant. chancery ordered accounts to be made in matters of foreign trade because the common law courts were limited to accounts pursuant to transactions made within the nation. it also involved itself in the administration of assets and accounting of partners to each other. the chancellor took jurisdiction of cases of debt, detinue, and account which had been decided in other courts with oath-helping by the defendant. he did not trust the reliance on friends of the defendant swearing that his statement made in his defense was true. an important evidentiary difference between procedures of the chancery and the common law courts was that the chancellor could orally question the plaintiff and the defendant under oath. he also could order persons to appear at his court by subpoena [under pain of punishment, such as a heavy fine]. whereas the characteristic award of the common law courts was seisin of land or monetary damages, chancery often enjoined certain action. because malicious suits were a problem, the chancery identified such suits and issued injunctions against taking them to any court. the chancery was given jurisdiction by statute over men of great power taking by force women who had lands and tenements or goods and not setting them free unless they bound themselves to pay great sums to the offenders or to marry them. a statute also gave chancery jurisdiction over servants taking their masters' goods at his death. justices of the peace, appointed by the crown, investigated all riots and arrested rioters, by authority of statute. if they had departed, the justices certified the case to the king. the case was then set for trial first before the king and his council and then at the king's bench. if the suspected rioters did not appear at either trial, they could be convicted for default of appearance. if a riot was not investigated and the rioters sought, the justice of the peace nearest forfeited , s. justices of the peace were not paid. for complex cases and criminal cases with defendants of high social status, they deferred to the justices of assize, who rode on circuit once or twice a year. since there was no requirement of legal knowledge for a justice of the peace, many referred to the "boke of the justice of the peas" compiled about for them to use. manor courts still formally admitted new tenants, registered titles, sales of land and exchanges of land, and commutation of services, enrolled leases and rules of succession, settled boundary disputes, and regulated the village agriculture. all attorneys shall be examined by the royal justices for their learnedness in the law and, at their discretion, those that are good and virtuous shall be received to make any suit in any royal court. these attorneys shall be sworn to serve well and truly in their offices. attorneys may plead on behalf of parties in the hundred courts. a qualification for jurors was to have an estate to one's own use or one of whom other persons had estates of fee simple, fee tail, or freehold in lands and tenements, which were at least s. per year in value. in a plea of land worth at least s. yearly or a personal plea with relief sought at least s., jurors had to have land in the bailiwick to the value of at least s., because perjury was considered less likely in the more sufficient men. in criminal cases, there were many complaints made that the same men being on the grand assize and petty assize was unfair because prejudicial. so it became possible for a defendant to challenge an indictor for cause before the indictor was put on the petty assize. then the petty assize came to be drawn from the country at large and was a true petty or trial jury. jurors were separated from witnesses. justices of the peace were to have lands worth s. yearly, because those with less had used the office for extortion and lost the respect and obedience of the people. a sheriff was not to arrest, but to transfer indictments to the justices of the peace of the county. he had to reside in his bailiwick. the sheriff could be sued for misfeasance such as bribery in the king's court. impeachment was replaced with bill of attainder during the swift succession of parliaments during the civil war. this was a more rapid and efficient technique of bringing down unpopular ministers or political foes. there was no introduction of evidence, nor opportunity for the person accused to defend himself, nor any court procedure, as there was with impeachment. an example of a case of common law decided by court of king's bench is russell's case ( ) as follows: in the king's bench one thomas russell and alice his wife brought a writ of trespass for goods taken from alice while she was single. the defendant appeared and pleaded not guilty but was found guilty by a jury at nisi prius, which assessed the damages at pounds. before the case was next to be heard in the king's court an injunction issued out of the chancery to the plaintiffs not to proceed to judgment, on pain of pounds, and for a long time judgment was not asked for. then hussey cjkb. asked spelman and fincham, who appeared for the plaintiff if they wanted to ask for judgment according to the verdict. fincham [p]: we would ask for judgment, except for fear of the penalty provided for in the injunction, for fear that our client will be imprisoned by the chancellor if he disobeys. fairfax, jkb: he can ask for judgment in spite of the injunction, for if it is addressed to the plaintiff his attorney can ask for judgment, and vice versa. hussey, cjkb: we have consulted together on this matter among ourselves and we see no harm which can come to the plaintiff if he proceeds to judgment. the law will not make him pay the penalty provided in the injunction. if the chancellor wants to imprison him he must send him to the fleet prison, and, as soon as you are there you will inform us and we shall issuea habeas corpus returnable before us, and when you appear before us we shall discharge you, so you will not come to much harm, and we shall do all we can for you. nevertheless, fairfax said he would go to the chancellor and ask him if he would discharge the injunction. and they asked for judgment and it was held that they should recover their damages as assessed by the jury, but they would not give judgment for damages caused by the vexation the plaintiff suffered through the chancery injunction. and they said that if the chancellor would not discharge the injunction, they would give judgment if the plaintiff would ask for it. an example of a petition to chancery in the th century is hulkere v. alcote, as follows: to the right reverend father in god and gracious lord bishop of bath, chancellor of england, your poor and continual bedwoman lucy hulkere, widow of westminster, most meekly and piteously beseeches: that whereas she has sued for many years in the king's bench and in the common pleas for withholding diverse charters and evidences of land, leaving and delaying her dower of the manor of manthorpe in lincolnshire and also of the manor of gildenburton in northamptonshire, together with the withdrawing of her true goods which her husband gave her on his deathbed to the value of pounds and more, under record of notary, sued against harry alcote and elizabeth of the foresaid gildenburton within the same county of northampton. and by collusion and fickle counsel of the foresaid harry and elizabeth his mother there was led and shown for him within the common pleas a false release, sealed, to void and exclude all her true suit by record of true clerks and attorneys of the aforesaid common pleas. of the which false release proved she has a copy to show. [all this is] to her great hindrance and perpetual destruction unless she have help and remedy by your righteous and gracious lordship in this matter at this time. that it please your noble grace and pity graciously to grant a writ subpena to command the foresaid henry alcote and elizabeth alcote to come before your presence by a certain day by you limited in all haste that they may come to westminster to answer to this matter abovesaid, for love of god and adeed of charity, considering graciously that the foresaid harry alcote, with another fellow of his affinity who is not lately hanged for a thief in franceled her into a garden at gildenburton and put her down on the ground, laying upon her body a board and a summer saddle and great stones upon the board, the foresaid harry alcote sitting across her feet and the other at her head for to have slain her and murdered her, and by grace of our lady her mother- in-law out walking heard a piteous voice crying and by her goodness she was saved and delivered, and otherwise would be dead. pledges to prosecute: john devenshire of berdevyle in essex and james kelom of london. returnable in michaelmas term. - - - chapter - - - - the times: - - henry tudor and other exiles defeated and killed richard iii on bosworth field, which ends the civil war of the roses between the lancaster and york factions. as king, henry vii restored order to the nation. he was readily accepted as king because he was descended from the lancaster royal line and he married a woman from the york royal line. henry was intelligent and sensitive. he weighed alternatives and possible consequences before taking action. he was convinced by reason on what plans to make. his primary strategy was enacting and enforcing statutes to shore up the undermined legal system, which includes the establishment of a new court: the court of the star chamber, to obtain punishment of persons whom juries were afraid to convict. it had no jury and no grand jury indictment. for speed and certainty, it tried people "ex officio": by virtue of its office. suspects were required to take an oath ex officio, by which they swore to truthfully answer all questions put to them. a man could not refuse to answer on the grounds of self-incrimination. the star chamber was the room in which the king's council had met since the s. in his reign of years, henry applied himself diligently to the details of the work of government to make it work well. he strengthened the monarchy, shored up the legal system to work again, and provided a peace in the land in which a renaissance of the arts and sciences, culture, and the intellectual life could flourish. the most prevalent problems were: murder, robbery, rape or forced marriage of wealthy women, counterfeiting of coin, extortion, misdemeanors by sheriffs and escheators, bribing of sheriffs and jurors, perjury, livery and maintenance agreements, idleness, unlawful plays, and riots. interference with the course of justice was not committed only by lords on behalf of their retainers; men of humbler station were equally prone to help their friends in court or to give assistance in return for payment. rural juries were intimidated by the old baronage and their armed retinues. juries in municipal courts were subverted by gangs of townsmen. justices of the peace didn't enforce the laws. the agricultural work of the nation had been adversely affected. henry made policy with the advice of his council and had parliament enact it into legislation. he dominated parliament by having selected most of its members. many of his council were sons of burgesses and had been trained in universities. he chose competent and especially trusted men for his officers and commanders of castles and garrison. the fact that only the king had artillery deterred barons from revolting. also, the baronial forces were depleted due to civil war of the roses. if henry thought a magnate was exercising his territorial power to the king's detriment, he confronted him with an army and forced him to bind his whole family in recognizances for large sums of money to ensure future good conduct. since the king had the authority to interpret these pledges, they were a formidable check on any activity which could be considered to be disloyal. the earl of kent, whose debts put him entirely at the king's mercy, was bound to "be seen daily once in the day within the king's house". henry also required recognizances from men of all classes, including clergy, captains of royal castles, and receivers of land. the higher nobility now consisted of about twenty families. the heavy fines by the star court put an end to conspiracies to defraud, champerty [an agreement with a litigant to pay costs of litigation for a share in the damages awarded], livery, and maintenance. the ties between the nobility and the justices of the peace had encouraged corruption of justice. so henry appointed many of the lesser gentry and attorneys as justices of the peace. also he appointed a few of his councilors as non-resident justices of the peace. there were a total of about thirty justices of the peace per county. their appointments were indefinite and most remained until retirement or death. henry instituted the yeomen of the guard to be his personal bodyguards night and day. many bills of attainder caused lords to lose their land to the king. most of these lords had been chronic disturbers of the peace. henry required retainers to be licensed, which system lasted until about . henry was also known to exhaust the resources of barons he suspected of disloyalty by accepting their hospitality for himself and his household for an extended period of time. henry built up royal funds by using every available procedure of government to get money, by maximizing income from royal estates by transferring authority over them from the exchequer to knowledgeable receivers, and from forfeitures of land and property due to attainders of treason. he also personally reviewed all accounts and initialed every page, making sure that all payments were made. he regularly ordered all men with an income of s. [ pounds] yearly from lands or revenue in hand to receive knighthoods, which were avoided by those who did not want to fight, or pay a high fee. as a result, the crown became rich and therefore powerful. henry's queen, elizabeth, was a good influence on his character. her active beneficence was a counteracting influence to his avaricious predisposition. when henry and his queen traveled through the nation, they often stopped to talk to the common people. they sometimes gave away money, such as to a man who had lost his hand. henry paid for an intelligent boy he met to go to school. henry had the first paper mill erected in the nation. he fostered the reading of books and the study of roman law, the classics, and the bible. he had his own library and gave books to other libraries. the age of entry to university was between and . it took four years' study of grammar, logic, and rhetoric to achieve the bachelor of arts degree and another five before a master could begin a specialized study of the civil law, canon law, theology, or medicine. arabic numbers replaced roman numerals, making multiplication and division possible. humanist studies were espoused by individual scholars at the three centers of higher learning: oxford university, cambridge university, and the inns of court in london. the inns of court attracted the sons of gentry and merchants pursuing practical and social accomplishments. the text of 'readings' to members of the inns survive from this time. in the legalistic climate of these times, attorneys were prosperous. the enclosure of land by hedges for sheep farming continued, especially by rich merchants who bought country land for this purpose. often this was land that had been under the plough. any villeins were given their freedom and they and the tenants at will were thrown off it immediately. that land held by copyholders of land who had only a life estate, was withheld from their sons. only freeholders and copyholders with the custom of the manor in their favor were secure against eviction. but they could be pressured to sell by tactics such as breeding rabbits or keeping geese on adjoining land to the detriment of their crops, or preventing them from taking their traditional short cuts across the now enclosed land to their fields. the real line of distinction between rural people was one of material means instead of legal status: free or unfree. on one extreme was the well-to-do yeoman farmer farming his own land. on the other extreme was the agricultural laborer working for wages. henry made several proclamations ordering certain enclosures to be destroyed and tillage to be restored. other land put to use for sheep breeding was waste land. there were three sheep to every person. the nearby woodlands no longer had wolves or lynx who could kill the sheep. bears and elk are also gone. there were still deer, wild boar, wildcats and wild cattle in vast forests for the lords to hunt. wood was used for houses, arms, carts, bridges, and ships. the villages were still isolated from each other, so that a visitor from miles away was treated as warily as a foreigner. most people lived and died where they had been born. a person's dialect indicated his place of origin. the life of the village still revolved around the church. in some parishes, its activities were highly organized, with different groups performing different functions. for example, the matrons looked after a certain altar; the maidens raised money for a chapel or saw to the gilding of the images; the older men collected money for church repair; and the younger men organized the church ales and the church plays. wills often left property or rents from leased land to the church. cows and sheep given could be leased out to villagers. buildings given could be leased out, turned over to the poor, used to brew ale or bake bread for church ales, or used in general as a place for church activities. church ales would usually a good source of income; alehouses would be closed during the ceremonies and parishioners would contribute malt for the ale and grain, eggs, butter, cheese, and fruits. the largest town, london, had a population of about , . other towns had a population less than , . the population was increasing, but did not reach the level of the period just before the black death. in most large towns, there were groups of tailors and hatmakers, glovers, and other leatherworkers. some towns had a specialization due to their proximity to the sources of raw materials, such as nails, cutlery, and effigies and altars. despite the spread of wool manufacturing to the countryside, there was a marked increase of industry and prosperity in the towns. the principal streets of the larger towns were paved with gravel. guild halls became important and imposing architecturally. a large area of london was taken up by walled gardens of the monasteries and large mansions. there were some houses of stone and timber and some mansions of brick and timber clustered around palaces. in these, bedrooms increased in number, with rich bed hangings, linen sheets, and bolsters. bedspreads were introduced. nightgowns were worn. fireplaces became usual in all the rooms. tapestries covered the walls. carpets were used in the private rooms. some of the great halls had tiled floors. the old trestle tables were replaced by tables with legs. benches and stools had backs to lean on. women and men wore elaborate headdresses. there are guilds of ironmongers, salters, and haberdashers [hats and caps]. on the outer periphery are mud and straw taverns and brothels. houses are beginning to be built outside the walls along the thames because the collapse of the power of the great feudal lords decreased the fear of an armed attack on london. the merchants introduced this idea of living at a distance from the place of work so that they could escape living in the narrow, damp, and dark lanes of the city and have more light and space. indeed no baronial army ever threatened the king again. east of london were cattle pastures, flour mills, bakers, cloth-fulling mills, lime burners, brick and tile makers, bell-founders, and ship repairing. there was a drawbridge on the south part of london bridge for defense and to let ships through. water sports were played on the thames such as tilting at each other with lances from different boats. the tailors' and linen armorers' guild received a charter in from the king as the "merchant tailors" to use all wares and merchandise, especially wool cloth, as well wholesale as retail, throughout the nation. some schooling was now being made compulsory in certain trades; the goldsmiths' company made a rule that all apprentices had to be able to read and write. a yeoman was the second-rank person of some importance, below a knight, below a gentleman, below a full member of a guild. in london, it meant the journeyman or second adult in a small workshop. these yeomen had their own fraternities and were often on strike. some yeomen in the large london industries, e.g. goldsmiths, tailors, clothworkers, who had served an apprenticeship started their own businesses in london suburbs outside the jurisdiction of their craft to search them. the merchant adventurers created a london fellowship confederacy to make membership of their society and compliance with its regulations binding on all cloth traders and to deal with common interests and difficulties such as taxation, relations with rulers, and dangers at sea. they made and enforced trading rules, chartered fleets, and organized armed convoys when the seas were unsafe and coordinated policies with henry vii. membership could be bought for a large fee or gained by apprenticeship or by being the son of a member. foreign trade was revived because it was a period of comparative peace. the nation sought to sell as much as possible to foreign nations and to buy at little as possible and thereby increase its wealth in gold and silver, which could be used for currency. ships weighed tons and had twice the cargo space they had previously. their bows were more pointed and their high prows made them better able to withstand gales. the mariners' compass with a pivoting needle and circular dial with a scale was introduced. the scale gave precision to directions. ships had three masts. on the first was a square sail. on the second was a square sail with a small rectangular sail above it. on the third was a three cornered lateen sail. these sails make it possible to sail in almost any direction. this opened the seas of the world to navigation. at this time navigators kept their knowledge and expertise secret from others. adventurous seamen went on voyages of discovery, such as john cabot to north america in , following italian christopher columbus' discovery of the new world in . ferdinand magellan of portugal circumnavigated the world in , proving uncontrovertedly that the earth was spherical rather than flat. sailors overcame their fear of tumbling into one of the openings into hell that they believed were far out into the atlantic ocean and ceased to believe that a red sunset in the morning was due to a reflection from hell. seamen could venture forth into the darkness of the broad atlantic ocean with a fair expectation of finding their way home again. they gradually learned that there were no sea serpents or monsters that would devour foolhardy mariners. they learned to endure months at sea on a diet of salt beef, beans, biscuits, and stale water and the bare deck for a bed. but there were still mutinies and disobedient pilots. mortality rates among seamen were high. theologians had to admit that jerusalem was not the center of the world. there are more navy ships, and they have some cannon. the blast furnace was introduced in the iron industry. a blast of hot air was constantly forced from a stove into the lower part of the furnace which was heating at high temperature a mixture of the iron ore and a reducing agent that combined with the oxygen released. after the iron was extracted, it was allowed to harden and then reheated and hammered on an anvil to shape it and to force out the hard, brittle impurities. blast furnace heat was maintained by bellows worked by water wheels. alchemists sought to make gold from the baser metals and to make a substance that would give them immortality. there was some thought that suffocation in mines, caverns, wells, and cellars was not due to evil spirits, but to bad air such as caused by "exhalation of metals". there were morality plays in which the seven deadly sins: pride, covetousness, lust, anger, gluttony, envy, and sloth, fought the seven cardinal virtues: faith, hope, charity, prudence, temperance, justice, and strength, respectively, for the human soul. the play "everyman" demonstrates that every man can get to heaven only by being virtuous and doing good deeds in his lifetime. it emphasizes that death may come anytime to every man, when his deeds will be judged as to their goodness or sinfulness. card games were introduced. the legend of robin hood was written down. the commons gained the stature of the lords and statutes were regularly enacted by the "assent of the lords spiritual and temporal and the commons", instead of at the request of the commons. - the law - royal proclamations clarifying, refining or amplifying the law had the force of parliamentary statutes. in , he proclaimed that "forasmuch as many of the king our sovereign lord's subjects [have] been disposed daily to hear feigned, contrived, and forged tidings and tales, and the same tidings and tales, neither dreading god nor his highness, utter and tell again as though they were true, to the great hurt of divers of his subjects and to his grievous displeasure: therefore, in eschewing of such untrue and forged tidings and tales, the king our said sovereign lord straitly chargeth and commandeth that no manner person, whatsoever he be, utter nor tell any such tidings or tales but he bring forth the same person the which was author and teller of the said tidings or tales, upon pain to be set on the pillory, there to stand as long as it shall be thought convenient to the mayor, bailiff, or other official of any city, borough, or town where it shall happen any such person to be taken and accused for any such telling or reporting of any such tidings or tales. furthermore the same our sovereign lord straitly chargeth and commandeth that all mayors, bailiffs, and other officers diligently search and inquire of all such persons tellers of such tidings and tales not bringing forth the author of the same, and them set on the pillory as it is above said." he also proclaimed in that no one, except peace offiers, may carry a weapon, e.g. bows, arrows, or swords, in any town or city unless on a journey. he proclaimed in that no one may refuse to receive silver pennies or other lawful coin as payment regardless of their condition as clipped, worn, thin, or old, on pain of imprisonment and further punishment. statutes included: lords holding castles, manors, lands and tenements by knight's service of the king shall have a writ of right for wardship of the body as well as of the land of any minor heir of a deceased person who had the use [beneficial enjoyment] of the land for himself and his heirs as if the land had been in the possession of the deceased person. and if such an heir is of age, he shall pay relief to the lord as if he had inherited possession of the land. an heir in ward shall have an action of waste against his lord as if his ancestor had died seised of the land. that is, lands of "those who use" shall be liable for execution of his debt and to the chief lord for his relief and heriot, and if he is a bondsman, they may be seized by the lord. the king tried to retain the benefits of feudal incidents on land by this statute of uses, but attorneys sought to circumvent it by drafting elaborate and technical instruments to convey land free of feudal burdens. any woman who has an estate in dower, or for a term of life, or in tail, jointly with her husband, or only to herself, or to her use, in any manors, lands, tenements, or other hereditaments of the inheritance or purchase of her husband, or given to the said husband and wife in tail, or for term of life, by any of the ancestors of the said husband, or by any other person seised to the use of the said husband, or of his ancestors, who, by herself or with any after taken husband; discontinue, alienate, release, confirm with warranty or, by collusion, allow any recovery of the same against them or any other seised to their use, such action shall be void. then, the person to whom the interest, title, or inheritance would go after the death of such woman may enter and possess such premises. this does not affect the common law that a woman who is single or remarried may give, sell, or make discontinuance of any lands for the term of her life only. all deeds of gift of goods and chattels made of trust, to the use of the giver [grantor and beneficiary of trust], to defraud creditors are void. it is a felony to carry off against her will, a woman with lands and tenements or movable goods, or who is heir-apparent to an ancestor. this includes taking, procuring, abetting, or knowingly receiving a woman taken against her will. a vagabond, idle, or suspected person shall be put in the stocks for three days with only bread and water, and then be put out of the town. if he returns, he shall spend six days in the stocks. (a few years later this was changed to one and three days, respectively.) every beggar who is not able to work, shall return to the hundred where he last dwelled, is best known, or was born and stay there. no one may take pheasants or partridges by net snares or other devices from his own warren [breeding ground], upon the freehold of any other person, or forfeit s., one half to the owner of the land and the other half to the suer. no one may take eggs of any falcon, hawk, or swan out of their nest, whether it is on his land or any other man's land, on pain of imprisonment for one year and fine at the king's will, one half to the king, and the other half to the holder of the land, or owner of the swan. no man shall bear any english hawk, but shall have a certificate for any hawk imported, on pain for forfeiture of such. no one shall drive falcons or hawks from their customary breeding place to another place to breed or slay any for hurting him, or pay s. after examination by a justice of the peace, one half going to the king and one half to the suer. any person without a forest of his own who has a net device with which to catch deer shall pay s. for each month of possession. anyone stalking a deer with beasts anywhere not in his own forest shall forfeit s. anyone taking any heron by device other than a hawk or long bow shall forfeit s. d. no one shall take a young heron from its nest or pay s. for each such heron. two justices may decide such an issue, and one tenth of the fine shall go to them. no man shall shoot a cross-bow except in defense of his house, other than a lord or one having , s. of land because their use had resulted in too many deer being killed. (the long-bow was not forbidden.) no beasts may be slaughtered or cut up by butchers within the walls of a town, or pay d. for every ox and d. for every cow or other beast, so that people will not be annoyed and distempered by foul air, which may cause them sickness. no tanner may be a currier [dressed, dyed, and finished tanned leather] and no currier may be a tanner. no shoemaker [cordwainer] may be a currier and no currier may be a shoemaker. no currier shall curry hides which have not been tanned. no tanner shall sell other than red leather. no tanner may sell a hide before it is dried. no tanner may tan sheepskins. no long bow shall be sold over the price of s. d. good wood for making bows may be imported without paying customs. no grained cloth of the finest making shall be sold for more than s., nor any other colored cloth for more than s. per yard, or forfeit s. for every yard so sold. no hat shall be sold for more than d. and no cap shall be sold for more than s. d., or forfeit s. for each so sold. silver may not be sold or used for any use but goldsmithery or amending of plate to make it good as sterling, so that there will be enough silver with which to make coinage. each feather bed, bolster, or pillow for sale shall be stuffed with one type of stuffing, that is, dry pulled feathers or with clean down alone, and with no sealed feathers nor marsh grass, nor any other corrupt stuffings. each quilt, mattress, or cushion for sale shall be stuffed with one type of stuffing, that is, clean wool, or clean flocks alone, and with no horsehair, marsh grass, neatshair, deershair, or goatshair, which is wrought in lime-fats and gives off an abominable and contagious odor when heated by a man's body, on pain of forfeiture of such. salmon shall be sold by standard volume butts and barrels. large salmon shall be sold without any small fish or broken-bellied salmon and the small fish shall be packed by themselves only, or forfeit s. d. herring shall be sold at standard volumes. the herring shall be as good in the middle and in every part of the package as at the ends of the package, or forfeit s. d. eels shall be sold at standard volumes, and good eels shall not be mixed with lesser quality eels, or forfeit s. the fish shall be packed in the manner prescribed or forfeit for each vessel s. d. fustians shall always be shorn with the long shear, so that it can be worn for at least two years. if an iron or anything else used to dress such injures the cloth so that it wears out after four months, s. shall be forfeited for each default, one half to the king and the other half to the suer. pewter and brass ware for sale shall be of the quality of that of london and marked by its maker, on pain of forfeiture of such, and may be sold only at open fairs and markets or in the seller's home, or forfeit s. if such false ware is sold, its maker shall forfeit its value, one half to the king and one half to the searchers. anyone using false weights of such wares shall forfeit s., one half to the king and one half to the suer, or if he cannot pay this fine, to be put in the stocks until market day and then be put in the pillory all the market time. no alien nor denizen [foreigner allowed to reside in the nation with certain rights and privileges] may carry out of the nation any raw wool or any woolen cloth which has not been barbed, rowed, and shorn. silk ribbons, laces, and girdles of silk may not be imported, since they can be made in the nation. no one shall import wine into the nation, but on english ships, or forfeit the wine, one half to the king and one half to the seizer of the wine. no one may take out of the nation any [male] horse or any mare worth more than s. s. or under the age of three years, upon pain of forfeiture of such. however, a denizen may take a horse for his own use and not to sell. this is to stop losing horses needed for defense of the nation and to stop the price of a horse from going up. freemen of london may go to fairs and markets with wares to sell, despite the london ordinance to the contrary. merchants residing in the nation but outside london shall have free access to foreign markets without exaction taken of more than s. sterling by the confederacy of london merchants, which have increased their fee so much, s., that merchants not in the confederacy have been driven to sell their goods in london for less than they would get at a foreign market. exacting more is punishable by a fine of s. and damages to the grieved party of ten times the excess amount taken. for the privilege of selling merchandise, a duty of scavage shall be taken of merchant aliens, but not of denizens. any town official who allows disturbing of a person trying to sell his merchandise because he has not paid scavage, shall pay a fine of s. coin clipped or diminished shall not be current in payment, but may be converted at the king's mint into plate or bullion. anyone refusing to take coins with only normal wear may be imprisoned by the mayor, sheriff, bailiff, constable or other chief officer. new coins, which have a circle or inscription around the outer edge, will be deemed clipped if this circle or inscription is interfered with. the penalty for usury is placement in the pillory, imprisonment for half a year, and a fine of s. (the penalty was later changed to one half thereof.) lawbooks in use at the inns of court included "the books of magna carta with diverse old statutes", "doctor and student" by st. germain, "grand abridgment" by fitzherbert, and "new natura brevium" by lombard. - judicial procedure - these changes in the judicial process were made by statute: the chancellor, treasurer, keeper of the king's privy seal, or two of them, with a bishop selected by them, and a temporal lord of the king's council selected by them, and the two chief justices of the king's bench shall constitute the court of the star chamber. it shall have the authority to call before it by writ or by privy seal anyone accused of "unlawful maintenances, giving of liveries, signs and tokens, and retainers by indentures, promises, oaths, writings, or otherwise embraceries of his subjects" and witnesses, and impose punishment as if convicted under due process of law. these laws shall now be enforced: if a town does not punish the murderer of a man murdered in the town, the town shall be punished. a town shall hold any man who wounds another in peril of death, until there is perfect knowledge whether the man hurt should live or die. upon viewing a dead body, the coroner should inquire of the killers, their abettors, and anyone present at the killing and certify these names. in addition, the murderer and accessories indicted shall be tried at the king's suit within a year of the murder, which trial will not be delayed until a private suit is taken. if acquitted at the king's suit, he shall go back to prison or let out with bail for the remainder of the year, in which time the slain man's wife or next of kin may sue. for every inquiry made upon viewing a slain body coroners shall be paid s. d. out of the goods of the slayer or from a town not taking a murderer, but letting him escape. if the coroner does not make inquiry upon viewing a dead body, he shall be fined s. to the king. if a party fails to appear for trial after a justice has taken bail from him, a record of such shall be sent to the king. up to , the star chamber heard many cases of forgery, perjury, riot, maintenance, fraud, libel, and conspiracy. it could mete out any punishment, except death or any dismemberment. this included life imprisonment, fines, pillory, whipping, branding, and mutilation. henry vii sat on it. if a justice of the peace does not act on any person's complaint, that person may take that complaint to another justice of the peace, and if there is no remedy then, he may take his complaint to a justice of assize, and if there is not remedy then, he may take his complaint to the king or the chancellor. there shall then be inquiry into why the other justices did not remedy the situation. if it is found that they were in default in executing the laws, they shall forfeit their commissions and be punished according to their demerits. justices of the peace shall make inquiry of all offenses in unlawful retaining, examine all suspects, and certify them to the king's bench for trial there or in the king's council, and the latter might also proceed against suspects on its own initiative on information given. perjury committed by unlawful maintenance, embracing, or corruption of officers, or in the chancery, or before the king's council, shall be punished in the discretion of the chancellor, treasurer, both the chief justices, and the clerk of the rolls. the star chamber, chancellor, king's bench and king and council have the power to examine all defendants, by oath or otherwise, to adjudge them convicted or attainted. they can also be found guilty by confession, examination, or otherwise. if a defendant denied doing the acts of which he is convicted, he was subject to an additional fine to the king and imprisonment. violations of statutes may be heard by the justices of assize or the justices of the peace, except treason, murder, and other felony. actions on the case shall be treated as expeditiously in the courts of the king's bench and common pleas as actions of trespass or debt. proclamation at four court terms of a levy of a fine shall be a final end to an issue of land, tenements, or other hereditaments and the decision shall bind persons and their heirs, whether they have knowledge or not of the decision, except for women-covert who were not parties, persons under the age of twenty-one, in prison, out of the nation, or not of whole mind, who are not parties. these may sue within five years of losing such condition. also, anyone not a party may claim a right, title, claim, or interest in the said lands, tenements, or other hereditaments at the time of such fine recorded, within five years after proclamations of the fine. a defendant who appeals a decision for the purpose of delaying execution of such shall pay costs and damages to the plaintiff for the delay. no sheriff, undersheriff, or county clerk shall enter any complaints in their books unless the complaining party is present. and no more complaints than the complaining party knows about shall be entered. the penalty is s. for each such false complaint, one half to the king and the other half to the suer after examination by a justice of the peace. this is to prevent extortion of defendants by false complaints. the justice shall certify this examination to the king, on pain of a fine of s. a bailiff of a hundred who does not do his duty to summon defendants shall pay a fine of s. for each such default, after examination by a justice of the peace. sheriffs' records of fines imposed and bailiffs' records of fines collected may be reviewed by a justice of the peace to examine for deceit. any sheriff allowing a prisoner to escape, whether from negligence or for a bribe, shall be fined, if the prisoner was indicted of high treason, at least , s. for each escape. however, if the prisoner was in their keeping because of a suspicion of high treason, the fine shall be at least s.; and if indicted of murder or petite treason, at least s.; and if suspected of murder or petite treason, s.; and if suspected of other felonies, s. petite treason was that by a wife to her husband or a man to his lord. any person not responding to a summons for jury service shall be fined d. for the first default, and s. for the second, and double for each subsequent default. a pauper may sue in any court and be assigned a attorney at no cost to him. a justice of the peace to whom has been reported hunting by persons disguised with painted faces or visors or otherwise, may issue a warrant for the sheriff or other county officer to arrest such persons and bring them before the justice. such hunting in disguise or hunting at night or disobeying such warrant is a felony. this is to stop large mobs of disguised people from hunting together and then causing riots, robberies, and murders. benefit of clergy may be used only once, since this privilege has made clerics more bold in committing murder, rape, robbery, and theft. however, there will be no benefit of clergy in the case of murder of one's immediate lord, master, or sovereign. (this begins the gradual restriction of benefit of clergy until it disappears. also, benefit of clergy was often disregarded in unpeaceful times.) for an issue of riot or unlawful assembly, the sheriff shall call jurors, each of lands and tenements at least s. of charter land or freehold or s. d. of copyhold or of both. for each default of the sheriff, he shall pay s. and if the jury acquits, then the justice, sheriff, and under-sheriff shall certify the names of any jurors maintained or embraced and their misdemeanors, or forfeit s. any person proved to be a maintainer or embracer shall forfeit s. to the king and be committed to ward. the principal leaders of any riot or unlawful assembly shall be imprisoned and fined and be bound to the peace with sureties at a sum determined by the justices of the peace. if the riot is by forty people or heinous, the justices of peace shall certify such and send the record of conviction to the king. the king's steward, treasurer, and comptroller have authority to question by twelve discreet persons any servant of the king about making any confederacies, compassings, conspiracies, or imaginations with any other person to destroy or murder the king or one of his council or a lord. trial shall be by twelve men of the king's household and punishment as by felony in the common law. when a land holder enfeoffs his land and tenements to people unknown to the remainderman in tail, so that he does not know who to sue, he may sue the receiver of the profits of the land and tenements for a remedy. and the receivers shall have the same advantages and defenses as the feoffees or as if they were tenants. and if any deceased person had the use for himself and his heirs, then any of his heirs shall have the same advantages and defenses as if his ancestor had died seised of the land and tenements. and all recoveries shall be good against all receivers and their heirs, and the feofees and their heirs, and the co- feoffees of the receivers and their heirs, as though the receivers were tenants indeed, or feofees to their use, or their heirs of the freehold of the land and tenements. if a person feoffs his land to other persons while retaining the use thereof for himself, it shall be treated as if he were still seised of the land. thus, relief and heriot will still be paid for land in socage. and debts and executions of judgments may be had upon the land and tenements. the penalty for not paying customs is double the value of the goods. the town of london shall have jurisdiction over flooding and unlawful fishing nets in that part of the thames river that flows next to it. the city of london shall have jurisdiction to enforce free passage of boats on the thames river in the city, interruption of which carries a fine of s., two-thirds to the king and one third to the suer. jurors impaneled in london shall be of lands, tenements, or goods and chattels, to the value of s. and if the case concerns debt or damages at least s, the jurors shall have lands, tenements, goods, or chattels, to the value of s. this is to curtail the perjury that has gone on with jurors of little substance, discretion, and reputation. a party grieved by a false verdict of any court in london may appeal to the hustings court of london, which hears common pleas before the mayor and aldermen. each of the twelve alderman shall pick from his ward four jurors of the substance of at least , s. to be impaneled. if twenty-four of them find that the jurors of the petty jury has given an untrue verdict, each such juror shall pay a fine of at least s. and imprisonment not more than six months without release on bail or surety. however, if it is found that the verdict was true, then the grand jury may inquire if any juror was bribed. if so, such juror bribed and the defendant who bribed him shall each pay ten times the amount of the bribe to the plaintiff and be imprisoned not more than six months without release on bail or surety. other changes in the judicial process were made by court decision. for instance, the royal justices decided that only the king could grant sanctuary for treason and not the church. after this, the church withdrew the right of sanctuary from second time offenders. the king's council has practically limited itself to cases in which the state has an interest, especially the maintenance of public order. chancery became an independent court rather than the arm of the king and his council. in chancery and the king's bench, the intellectual revival brought by humanism inspires novel procedures to be devised to meet current problems in disputed titles to land, inheritance, debt, breach of contract, promises to perform acts or services, deceit, nuisance, defamation, and the sale of goods. a new remedy is specific performance, that is, performance of an act rather than money damages. evidence is now taken from witnesses. various courts had overlapping jurisdiction. for instance, trespass could be brought in the court of common pleas because it was a civil action between two private persons. it could also be brought in the court of the king's bench because it broke the king's peace. it was advantageous for a party to sue for trespass in the king's court because there a defendant could be made to pay a fine to the king or be imprisoned, or declared outlaw if he did not appear at court. a wrongful step on the defendant's land, a wrongful touch to his person or chattels could be held to constitute sufficient force and an adequate breach of the king's peace to sustain a trespass action. a new form of action is trespass on the case, which did not require the element of force or of breach of the peace that the trespass offense requires. trespass on the case [or "case" for short] expands in usage to cover many types of situations. stemming from it is "assumpsit", which provided damages for breach of an oral agreement and a written agreement without a seal. parliament's supremacy over all regular courts of law was firmly established and it was called "the high court of parliament", paradoxically, since it came to rarely function as a law court. the humanist intellectual revival also caused the church courts to try to eliminate contradictions with state law, for instance in debt, restitution, illegitimacy, and the age of legal majority. the bishop's court in london had nine offenders a week by . half of these cases were for adultery and sexual offenses, and the rest were for slander, blasphemy, missing church services, and breach of faith. punishment was penance by walking barefoot before the cross in the sunday procession dressed in a sheet and holding a candle. - - - chapter - - - - the times: - - renaissance humanism came into being in the nation. in this development, scholars in london, oxford, and cambridge emphasized the value of classical learning, especially platonism and the study of greek literature as the means of better understanding and writing. they studied the original greek texts and became disillusioned with the filtered interpretations of the church, for example of the bible and aristotle. there had long been displeasure with the priests of the church. they were supposed to preach four times yearly, visit the sick, say the daily liturgies, and hear confessions at least yearly. but there were many lapses. many were not celibate, and some openly lived with a woman and had children. complaints about them included not residing within their parish community, doing other work such as raising crops, and taking too much in probate, mortuary fees, and marriage fees. probate fees had risen from at most s. to s. in the last hundred years. mortuary fees ranged from / to / of a deceased person's goods. sanctuary was abused. people objected to the right of arrest by ecclesiastical authorities. also, most parish priests did not have a theology degree or even a bachelor's degree, as did many laymen. in fact, many laymen were better educated than the parish priests. no one other than a laborer was illiterate in the towns. humanist grammar [secondary] schools were established in london by merchants and guilds. in , the founder and dean of st. paul's school placed its management in the hands of london "citizens of established reputation" because he had lost confidence in the good faith of priests and noblemen. the sons of the nobility, attorneys, and merchants were starting to go to grammar school now instead of being taught at home by a tutor. at school, they mingled with sons of yeomen, farmers, and tradesmen, who were usually poor. the usual age of entry was six or seven. classical latin and greek were taught and the literature of the best classical authors was read. secondary education teachers were expected to know latin and have studied the ancient philosophers, history, and geography. the method of teaching was for the teacher to read textbooks to the class from a prepared curriculum. the students were taught in latin and expected not to speak english in school. they learned how to read and to write latin, to develop and amplify a theme by logical analysis, and to essay on the same subject in the narrative, persuasive, argumentative, commending, consoling, and inciting styles. they had horn books with the alphabet and perhaps a biblical verse on them. this was a piece of wood with a paper on it held down by a sheet of transparent horn. they also learned arithmetic (solving arithmetical problems and casting accounts). disobedience incurred flogging by teacher as well as by parents. spare the rod and spoil the child was the philosophy. schools now guarded the morals and behavior of students. there were two week vacations at christmas and at easter. royal grammar books for english and latin were proclaimed by henry in to be the only grammar book authorized for students. in , he proclaimed a certain primer of prayers in english to be the only one to be used by students. the first school of humanist studies arose in oxford with the foundation of corpus christi college in by bishop richard fox. it had the first permanent reader or professor in greek. the professor of humanity was to extirpate all barbarisms by the study of cicero, sallust, valerius maximus, and quintilian. the third reader of theology was to read texts of the holy fathers but not those of their commentators. oxford university was granted a charter which put the greater part of the town under control of the chancellor and scholars. the mayor of oxford was required to take an oath at his election to maintain the privileges and customs of the university. roman law and other regius professorships were founded by the king at oxford and cambridge. teaching of undergraduates was the responsibility of the university rather than of the colleges, though some colleges had live-in teachers as students. most colleges were exclusively for graduate fellows, though this was beginning to change. the university took responsibility for the student's morals and behavior and tutors sometimes whipped the undergraduates. for young noblemen, a more important part of their education than going to university was travel on the continent with a tutor. this exposure to foreign fields was no longer readily available through war or pilgrimage. the purpose was practical - to learn about foreign people and their languages, countries, and courts. knowledge of the terrain, resources, prosperity, and stability of their countries was particularly useful to a future diplomatic or political career. the physicians of london were incorporated to oversee and govern the practice of medicine. a faculty of physicians was established at oxford and cambridge. a royal college of physicians was founded in london in by the king's physician. the college of physicians taught more practical medicine and anatomy than the universities. only graduates of the college of physicians or of oxford or cambridge were allowed to practice medicine or surgery. medical texts were hippocrates and galen. these viewed disease as only part of the process of nature without anything divine. they stressed empiricism, experience, collections of facts, evidences of the senses, and avoidance of philosophical speculations. hippocrates had asserted that madness was simply a disease of the brain and then galen had agreed and advocated merciful treatment of the insane. galen's great remedies were proper diet, exercise, massage, and bathing. he taught the importance of a good water supply and good drainage. greek medicinal doctrines were assumed, such as that preservation of the health of the body was dependant on air, food, drink, movement and repose, sleeping and waking, excretion and retention, and the passions. it was widely known that sleep was restorative and that bad news or worry could spoil one's digestion. an italian book of showed that post-mortem examinations could show cause of death by gallstones, heart disease, thrombosis of the veins, or abscesses. in began the practice of giving bodies of hanged felons to surgeons to dissect. this was to deter the commission of felony. there was some feeling that dissection was a sacrilege, that the practice of medicine was a form of sorcery, and that illness and disease should be dealt with by prayer and/or atonement because caused by sin, the wrath of god, or by the devil. in , flemish physician andreas vesalius, who had secretly dissected human corpses, published the first finely detailed description of human anatomy. in it, there was no missing rib on one side of man, and this challenged the theory of the woman eve having been made from a rib of the man adam. food that was digested was thought to turn into a vapor which passed along the veins and was concreted as blood, flesh, and fat. after there was a book listing hundreds of drugs and explaining how to prepare them, but their use was by trial and error. students were beginning to read for the bar by their own study of the newly available printed texts, treatises, and collections of statute law and of cases, instead of listening in court and talking with attorneys. in , anthony fitzherbert wrote "boke of husbandry", which set forth the most current methods of arable farming, giving details of tools and equipment, advice on capital outlay, methods of manuring, draining, ploughing, and rick-building. it was used by many constantly, and was often carried around in the pocket. this began a new way to disseminate new methods in agriculture. he also wrote a "boke of surveying", which relied on the perch rod and compass dial, and gave instruction on how to set down the results of a survey. in , gemma frisius laid down the principles of topographical survey by triangulation. this improved the quality of surveys and produced accurate plots. geoffrey chaucer's "canterbury tales" was a popular book. through chaucer, london english became a national standard and the notion of "correct pronunciation" came into being. the discoveries and adventures of amerigo vespucci, a portuguese explorer, were widely read. the north and south american continents were named for him. london merchant guilds began to be identified mainly with hospitality and benevolence instead of being trading organizations. twelve great companies dominated city politics and effectively chose the mayor and aldermen. they were, in order of precedence, mercers, grocers, drapers, fishmongers, goldsmiths, skinners, tailors, haberdashers, ironmongers, salters, vintners, and the clothworkers (composed from leading fullers and shearmen). the leading men of these guilds were generally aldermen and the guilds acted like municipal committees of trade and manufactures. then they superintended the trade and manufactures of london much like a government department. they were called livery companies and categorized their memberships in three grades: mere membership, livery membership, and placement on the governing body. livery members were distinguished by having the clothing of the brotherhood [its livery] and all privileges, and proprietary and municipal rights, in the fullest degree. they generally had a right to a place at the company banquets. they were invited by the governing body, as a matter of favor, to other entertainments. these liverymen were usually those who had bought membership and paid higher fees because they were richer. their pensions were larger than those of mere members. those with mere membership were freemen who had only the simple freedom of the trade. the masters were usually householders. the journeymen, yeomanry, bachelors were simple freemen. most of these companies had almshouses attached to their halls for the impoverished, disabled, and elderly members and their widows and children. for instance, many members of the goldsmiths had been blinded by the fire and smoke of quicksilver and some members had been rendered crazed and infirm by working in that trade. the freedom and rights of citizenship of the city could only be obtained through membership in a livery company. a lesser guild, the leathersellers, absorbed the glovers, pursers, and pouchmakers. these craftsmen then became wage earners of the leathersellers, but others of these craftsmen remained independent. before, the whittawyers, who treated horse, deer, and sheep hides with alum and oil, had become wage earners for the skinners. londoners went to the fields outside the city for recreation and games. when farmers enclosed some suburban common fields in , a crowd of young men marched out to them and, crying "shovels and spades", uprooted the hedges and filled in the ditches, thus reclaiming the land for their traditional games. the last major riot in london was aroused by a speaker on may day in when a thousand disorderly young men, mostly apprentices, defied the curfew and looted shops and houses of aliens. a duke with two thousand soldiers put it down in mid-afternoon, after which the king executed fifteen of the rioters. many english migrated to london. there were ambitious young men and women hopeful of betterment through employment, apprenticeship, higher wages, or successful marriage. on the other hand, there were subsistence migrants forced to leave their homes for food, work, or somewhere to live. there was much social mobility. for instance, between and , of persons admitted as freemen of london, were the sons of gentlemen, the sons of yeomen, and the sons of farm workers. london grew in population about twice as fast as the nation. the fortunes of landowners varied; some went into aristocratic debt by ostentatiously spending on building, clothes, food, and drink, and some became indebted by inefficient management. some had to sell their manors and dismiss their servants. there are wards of london as of . this is the number for the next four centuries. each ward has an alderman, a clerk, and a chief constable. there are also in each ward about to elected officials including prickers, benchers, blackbootmen, fewellers [keepers of greyhounds], scribes, a halter-cutter, introducers, upperspeakers, under speakers, butlers, porters, inquestmen, scavengers, constables, watchmen, a beadle, jurymen, and common councilmen. the wardmoot had inquest jurisdiction over immorality or bad behavior such as vagrancy, delinquency, illegitimacy, and disputes. this contributed greatly to social stability. in , henry ordered the london brothels closed. a small gaol was established in the clink district of southwark, giving the name "clink" to any small gaol. london ordinances required journeymen to work from am to pm in winter, with a total of minutes breaks for breakfast, dinner, and an afternoon drink, for d. in the summer they had to work for two hours longer for d. at its peak in the s the court employed about gentlemen, which was about half the peerage and one-fifth of the greater gentry. henry issued a proclamation ordering noblemen and gentlemen in london not employed by the court to return to their country homes to perform their service to the king. though there was much agreement on the faults of the church and the need to reform it, there were many disagreements on what philosophy of life should take the place of church teachings. the humanist thomas more was a university trained intellectual. his book "utopia", idealized an imaginary society living according to the principles of natural virtue. in it, everything is owned in common and there is no need for money. all believe that there is a god who created the world and all good things and who guides men, and that the soul is immortal. but otherwise people choose their religious beliefs and their priests. from this perspective, the practices of current christians, scholastic theologians, priests and monks, superstition, and ritual look absurd. he encouraged a religious revival. aristotle's position that virtuous men would rule best is successfully debated against plato's position that intellectuals and philosophers would be the ideal rulers. more believed the new humanistic studies should be brought to women as well as to men. he had tutors teach all his children latin, greek, logic, theology, philosophy, mathematics, and astronomy from an early age. his eldest daughter margaret became a recognized scholar and translated his treatise on the lord's prayer. other high class women became highly educated. they voiced their opinions on religious matters. in the s, the duchess of suffolk spoke out for reform of the clergy and against images, relics, shrines, pilgrimmages, and services in latin. she and the countess of sussex supported ministers and established seminaries for the spread of the reformed faith. more pled for proportion between punishment and crime. he urged that theft no longer be punished by death because this only encouraged the thief to murder his victim to eliminate evidence of the theft. he opined that the purpose of punishment was to reform offenders. he advocated justice for the poor to the standard of justice received by the rich. erasmus, a former monk, visited the nation for a couple of years and argued that reason should prevail over religious belief. he wrote the book "in praise of folly", which noted man's elaborate pains in misdirected efforts to gain the wrong thing. for instance, it questioned what man would stick his head into the halter of marriage if he first weighed the inconveniences of that life? or what woman would ever embrace her husband if she foresaw or considered the dangers of childbirth and the drudgery of motherhood? childhood and senility are the most pleasant stages of life because ignorance is bliss. old age forgetfulness washes away the cares of the mind. a foolish and doting old man is freed from the miseries that torment the wise and has the chief joy of life: garrulousness. the seekers of wisdom are the farthest from happiness; they forget the human station to which they were born and use their arts as engines with which to attack nature. the least unhappy are those who approximate the naiveness of the beasts and who never attempt what is beyond men. as an example, is anyone happier than a moron or fool? their cheerful confusion of the mind frees the spirit from care and gives it many-sided delights. fools are free from the fear of death and from the pangs of conscience. they are not filled with vain worries and hopes. they are not troubled by the thousand cares to which this life is subject. they experience no shame, fear, ambition, envy, or love. in a world where men are mostly at odds, all agree in their attitude towards these innocents. they are sought after and sheltered; everyone permits them to do and say what they wish with impunity. however, the usual opinion is that nothing is more lamentable than madness. the christian religion has some kinship with folly, while it has none at all with wisdom. for proof of this, notice that children, old people, women, and fools take more delight than anyone else in holy and religious things, led no doubt solely by instinct. next, notice that the founders of religion have prized simplicity and have been the bitterest foes of learning. finally, no people act more foolishly than those who have been truly possessed with christian piety. they give away whatever is theirs; they overlook injuries, allow themselves to be cheated, make no distinction between friends and enemies, shun pleasure, and feast on hunger, vigils, tears, labors, and scorn. they disdain life, and utterly prefer death. in short, they have become altogether indifferent to ordinary interests, as if their souls lived elsewhere and not in their bodies. what is this, if not to be mad? the life of christians is run over with nonsense. they make elaborate funeral arrangements, with candles, mourners, singers, and pallbearers. they must think that their sight will be returned to them after they are dead, or that their corpses will fall ashamed at not being buried grandly. christian theologians, in order to prove a point, will pluck four or five words out from different places, even falsifying the sense of them if necessary, and disregard the fact that their context was relevant or even contradicted their points. they do this with such brazen skill that our attorneys are often jealous of them. attorney christopher st. german wrote the legal treatise "doctor and student", in which he deems the law of natural reason to be supreme and eternal. the law of god and the law of man, as enunciated by the church and royalty, merely supplement the law of natural reason and may change from time to time. examples of the law of reason are: it is good to be loved. evil is to be avoided. do onto others as you would have them do unto you. do nothing against the truth. live peacefully with others. justice is to be done to every man. no one is to wrong another. a trespasser should be punished. from these is deduced that a man should love his benefactor. it is lawful to put away force with force. it is lawful for every man to defend himself and his goods against an unlawful power. like his father, henry viii dominated parliament. he used this power to reform the church of england in the 's. the protestant reformation cause, started in germany in by martin luther posting his thesis, had become identified with henry's efforts to have his marriage of eighteen years to the virtuous catherine annulled so he could marry a much younger woman: anne. his purported reason was to have a son. the end of his six successive wives was: annuled, beheaded, died; annuled, beheaded, survived. henry viii was egotistical, arrogant, and self- indulgent. this nature allowed him to declare himself the head of the church of england instead of the pope. henry used and then discarded officers of state e.g. by executing them for supposed treason. one such was thomas wolsey, the son of a town grazier and butcher, who was another supporter of classical learning. he rose through the church, the gateway to advancement in a diversity of occupations of clergy such as secretary, librarian, teacher, attorney, doctor, author, civil servant, diplomat, and statesman. he was a court priest when he aligned himself with henry, both of whom wanted power and glory and dressed extravagantly. but he was brilliant and more of a strategist than henry. wolsey called himself a reformer and started a purge of criminals, vagrants and prostitutes within london, bringing many before the council. but most of his reforming plans were not brought to fruition, but ended after his campaign resulted in more power for himself. wolsey rose to be chancellor to the king and archbishop of york. as the representative of the pope for england, he exercised almost full papal authority there. but he controlled the church in england in the king's interest. he was second only to the king and he strengthened the crown by consolidating power and income that had been scattered among nobles and officeholders. he also came to control the many courts. wolsey centralized the church in england and dissolved the smaller monasteries, the proceeds of which he used to build colleges at oxford and his home town. he was an impartial and respected justice. when wolsey was not able to convince the pope to give henry an annulment of his marriage, henry dismissed him and took his property, shortly after which wolsey died. the king replaced wolsey as chancellor with thomas more, after whom he made thomas cromwell chancellor. cromwell, the son of a clothworker/blacksmith/brewer/innkeeper, was a self-taught attorney, arbitrator, merchant, and accountant. like wolsey, he was a natural orator. he drafted and had passed legislation that created a new church of england. he had all men swear an oath to the terms of the succession statute. thomas more was known for his honesty and was a highly respected man. more did not yield to henry's bullying for support for his statute declaring the succession to be vested in the children of his second marriage, and his statute declaring himself the supreme head of the church of england, instead of the pope. he did not expressly deny this supremacy statute, so was not guilty of treason under its terms. but silence did not save him. he was attainted for treason on specious grounds and beheaded. his conviction rested on the testimony of one perjured witness, who misquoted more as saying that parliament did not have the power to require assent to the supremacy statute because it was repugnant to the common law of christendom. henry ruled with an iron fist. in , he issued a proclamation that "any rioters or those in an unlawful assembly shall return to their houses" or "we will proceed against them with all our royal force and destroy them and their wives and children." in , he proclaimed that anyone hurting or maiming an officer while trying to make an arrest "shall lose and forfeit all their lands, goods, and chattel" and shall suffer perpetual imprisonment. moreover, if one murdered such an officer, he would suffer death without privilege of sanctuary or of clergy. in , he proclaimed that there would be no shooting by handgun except on a shooting range. henry had parliament pass bills of attainder against many people. for the first time, harsh treatment of prisoners in the tower, such as placement in dungeons with little food, no bed, and no change of clothes, became almost a matter of policy. through his host of spies, cromwell heard what men said to their closest friends. words idly spoken were distorted into treasonable utterances. fear spread through the people. silence was a person's only possibility of safety. cromwell developed a technique for the management of the house of commons which lasted for generations. he promulgated books in defense of royal spiritual authority, which argued that canon law was not divine but merely human and that clerical authority had no foundation in the bible. a reformed english bible was put in all parish churches. reformers were licensed to preach. cromwell ordered sermons to be said which proclaimed the supremacy of the king. he instituted registers to record baptisms, marriages, and burials in every county, for the purpose of reducing disputes over descent and inheritance. he dissolved all the lesser monasteries. when cromwell procured a foreign wife for henry whom henry found unattractive, he was attainted and executed. henry now reconstructed his council to have a fixed membership, an official hierarchy based on rank, a secretariat, an official record, and formal powers to summon individuals before it by legal process. because it met in the king's privy lodgings, it was called the "privy council". it met daily instead of just during the terms of the westminster courts from late autumn to early summer. it communicated with the king through intermediaries, of whom the most important was the king's secretary. because it was a court council, part of it traveled with the king, while the other part conducted london business. when henry went to war in france, part of the council went with him, and part of it stayed to attend the queen regent. thomas cranmer, archbishop of canterbury, wrote the first english common book of prayer. with its use beginning in , church services were to be held in english instead of latin. the celebration of the lord's supper was a communion among the parishoners and minister all sharing the wine and bread. it replaced the mass, in which the priests were thought to perform a miraculous change of the substance of bread and wine into the body and blood of christ, which the priest then offered as a sacrifice for remission of pain or guilt. this reflected the blood sacrifice of christ dying on the cross. in the mass, only the priests drank the wine. the mass, miracles, the worship of saints, prayers for souls in purgatory, and pilgrimages to shrines such as that of thomas becket, were all to be discontinued. imprisonment or exile rather than death was made the penalty for heresy and blasphemy, and also for adultery. after the king dissolved the greater monasteries, he took and sold their ornaments, silver plate and jewelry, lead from roofs of their buildings, and finally much of the land itself. three monasteries were converted into the first three treating hospitals in london, one for the diseased, one for the poor, and one, bethlehem (or "bedlam" for short), for the mentally ill. but there were still many poor, sick, blind, aged, and impotent people in the streets since the closure of the monasteries. in , there were , people in need of relief, including orphans, sick or aged, poor men overburdened with their children, decayed householders, and idle vagabonds. london then set up a poor relief scheme. the bridewell was established to set to work the idle in making feather bed ticks and wool-cards, drawing of wire, carding, knitting, and winding of silk. parishes were required to give money for the poor in . other towns followed london's lead in levying a poor rate. henry used the proceeds from the sale of the monasteries for building many new palaces and wood ships for his navy. in war, these navy ships had heavy guns which could sink other ships. in peace time, these ships were hired out to traders. large ships were constructed in docks, made partly by digging and partly by building walls. in , henry issued a proclamation ordering all vagabonds, ruffians, masterless men, and evil-disposed persons to serve him in his navy. the former land of the monasteries, about % of the country's land, was sold and resold, usually to great landowners, or leased. title deeds became important as attorneys sought the security that title could give. some land went to entrepreneurial cloth manufacturers, who converted the buildings for the manufacture of cloth. they bought the raw wool and hired craftsmen for every step of the manufacturing process to be done in one continuous process. this was faster than buying and selling the wool material between craftsmen who lived in different areas. also, it was more efficient because the amount of raw wool bought could be adjusted to the demand for cloth. many landowners now could live in towns exclusively off the rents of their rural land. rents were increased so much that tenants could not pay and were evicted. they usually became beggars or thieves. much of their former land was converted from crop raising to pasture for large herds of sheep. arable farming required many workers, whereas sheep farming required only one shepherd and herdsman. there were exceptional profits made from the export of wool cloth. but much raw wool was still exported. its price went up from s. d. per tod [about pounds] in to s. d. in . villeinage was now virtually extinct. a lord could usually claim a small money-rent from the freeholder, sometimes a relief when his land was sold or passed at death, and occasionally a heriot from his heir. there was steady inflation. landlords made their leases short term so that they could raise rents as prices rose. copyholders gradually acquired a valuable right in their holdings; their rent became light - less that a shilling an acre. at least % of the population still lived in the country. rich traders built town or country houses in which the emphasis was on comfort and privacy. there was more furniture, bigger windows filled with glass, thick wallpaper, and formal gardens. use of thick, insulating wallpaper rose with the rise of paper mills. it was stenciled, hand-painted, or printed. some floors were tiled instead of stone or wood. they were still strewn with straw. the owners ate in a private dining room and slept in their own rooms with down quilts. their soap was white. they had clothing of white linen and white wool, leather slippers, and felt hats. men wore long tunics open at the neck and filled in with pleated linen and enormous puffed sleeves. henry made proclamations reminding people of the apparel laws, but they were difficult to enforce. henry also made a proclamation limiting the consumption of certain meat according to status. seven dishes were allowed to bishops, dukes, marquises, and earls; six to other temporal lords; five to justices, the king's council, sheriffs, and persons with an income of at least pounds yearly or goods worth pounds; four to persons with an income of at least pounds or goods worth pounds; and three dishes to persons with an income of at least pounds or goods worth pounds. there were limits on types of meat served, such as a maximum of one dish of great fowl such as crane, swan, and peacock; eight quail per dish; and twelve larks in a dish. people used tin or pewter dishes, platters, goblets, saucers, spoons, saltcellars, pots, and basins. they used soap to wash themselves, their clothes, and their dishes. a solid, waxy soap was from evaporating a mixture of goat fat, water, and ash high in potassium carbonate. they had bedcovers on their beds. cloth bore the mark of its weaver and came in many colors. cloth could be held together with pins that had a shank with a hook by which they were closed. people went to barbers to cut their hair and to extract teeth. they went to people experienced with herbs, roots, and waters for treatment of skin conditions such as sores, cuts, burns, swellings, irritated eyes or scaly faces. for more complicated ailments, they went to physicians, who prescribed potions and medicines. they bought potions and medicines from apothecaries and pharmacists. they burned wood logs in the fireplaces in their houses. so much wood was used that young trees were required by statute to be given enough lateral space to spread their limbs and were not cut down until mature. the king, earls, who ruled counties, and barons, who had land and a place in the house of lords, still lived in the most comfort. the king's house had courtyards, gardens, orchards, wood-yards, tennis courts, and bowling alleys. the walls of the towns were manned by the citizens themselves, with police and watchmen at their disposal. in inns, travelers slept ten to a bed and there were many fleas and an occasional rat or mouse running through the rushes strewn on the floor. the inn provided a bed and ale, but travelers brought their own food. each slept with his purse under his pillow. in markets, sellers set up booths for their wares. they sold grain for making oatmeal or for sowing one's own ground. wine, butter, cheese, fish, chicken, and candles could also be bought. butchers bought killed sheep, lambs, calves, and pigs to cut up for selling. tanned leather was sold to girdle-makers and shoemakers. goods bought in markets were presumed not to be stolen, so that a purchaser could not be dispossessed of goods bought unless he had knowledge that they were stolen. the ruling group of the towns came to be composed mostly of merchants, manufacturers, attorneys, and physicians. some townswomen were independent traders. the governed class contained small master craftsmen and journeyman artisans, small traders, and dependent servants. the major streets of london were paved with stone, with a channel in the middle. more water conduits from hills, heaths, and springs were built to provide the citizens of london with more water. the sewers carried only surface water away. households were forbidden to use the sewers. privies emptied into cesspools. the merchant adventurers' fellowship brought virtually all adventurers under its control and organized and regulated the national cloth trade. it had a general court of the adventurers sitting in the london mercers' hall. various companies were granted monopolies for trade in certain areas of the world such as turkey, spain, france, venice, the baltic, and africa. these were regulated companies. that is they obtained complete control of a particular foreign market, but any merchant who cared to join the company, pay its dues, and obey its regulations, might share in the benefits of its monopoly. the companies generally confined trade to men who were primarily merchants and not shopkeepers. in explorer sebastian cabot formed the muscovy company, which was granted a monopoly in its charter for trade with russia. it was oriented primarily to export english woolen cloth. it was the first company trading on a joint stock, which was arranged as a matter of convenience and safety. the risks were too great for any few individuals. it hired ships and assigned space to each member to ship his goods at his own risk. the dividend was return to the subscribers of the capital put in plus an appropriate share of any profits made on the voyage. i.e. the money was divided up. the members began leaving their money with the company for the next voyage. a general stock grew up. in were the first industrial companies: mines royal, and mineral and battery works. the cloth, mining, iron, and woodcraft industries employed full-time workers on wages. in the ironworks and foundries, the furnace blowing engines were worked by water wheels or by a gear attached to donkeys or horses. the forge hammers were worked at first by levers and later by water wheels. the day and night hammering filled the neighborhood with their noise. land held in common was partitioned. there were leases of mansion houses, smaller dwelling houses, houses with a wharf having a crane, houses with a timber yard, houses with a garden, houses with a shed, shops, warehouses, cellars, and stables. lands with a dye-house or a brew-house were devised by will along with their dying or brewing implements. there were dairies making butter and cheese. the knights had % of the land, the nobles %, the church %, and king %. citizens paid taxes to the king amounting to one tenth of their annual income from land or wages. merchants paid "forced loans" and benevolences. the national government was much centralized and had full-time workers on wages. a national commission of sewers continually surveyed walls, ditches, banks, gutters, sewers, ponds, bridges, rivers, streams, mills, locks, trenches, fish- breeding ponds, and flood gates. when low places were threatened with flooding, it hired laborers, bought timber, and hired carts with horses or oxen for necessary work. mayors of cities repaired water conduits and pipes under their cities' ground. the organ and the harp, precursor to the piano, were played. all people generally had enough food because of the commercialization of agriculture. even the standard meal of the peasant was bread, bacon, cheese, and beer or cidar, with beef about twice a week. also, roads were good enough for the transport of foodstuffs thereon. four-wheeled wagons for carrying people as well as goods. goods were also transported by the pulling of barges on the rivers from paths along the river. a plough with wheels was used as well as those without. the matchlock musket came into use, but did not replace the bow because its matchcord didn't remain lit in rainy weather. the matchlock was an improvement over the former musket because both hands could be used to hold and aim the matchlock musket because the powder was ignited by a device that touched a slow-burning cord to the powder when a trigger was pulled with one finger. after the break with rome, cooperation among villagers in church activities largely ceased. the altars and images previously taken care of by them disappeared and the paintings on the walls were covered with white or erased, and scripture texts put in their place. people now read the new bible, the "paraphrases" of erasmus, foxe's "book of martyrs", and the works of bishop jewel. the book of martyrs taught the duty and splendor of rising above all physical danger or suffering. the canon law of the church was abolished and its study prohibited. professorships of the civil law were founded at the two universities. the inns of court grew. attorneys had more work with the new laws passed to replace the church canons of the church. they played an important role in town government and many became wealthy. they acquired town houses in addition to their rural estates. church reforms included abolishing church sanctuaries. benefit of clergy was restricted. parsons were allowed to marry. archbishops were selected by the king without involvement by the pope. decisions by archbishops in testamentary, matrimonial, and marriage annulment matters were appealable to the court of chancery instead of to the pope. the clergy's canons were subject to the king's approval. the control of the church added to the powers of the crown to summon and dissolve parliament, coin money, create peers [members of the house of lords who received individual writs of summons to parliament], pardon criminals, order the arrest of dangerous persons without customary process of law in times of likely insurrection, tax and call men to arms without the consent of parliament if the country were threatened with invasion. about there began indictments and executions for witchcraftery which lasted for about a century. one of the reasons for suspecting a woman to be a witch was that she lived alone, which was very unusual. henry ordered all alien anabaptists, who denied the validity of infant baptism, to leave the realm. in switzerland, theophrastus paracelsus, an astrologer and alchemist who later became a physician, did not believe that humor imbalance caused disease nor in treatment by blood-letting or purging. he believed that there were external causes of disease, e.g. toxic matter in food, contagion, defective physical or mental constitution, cosmic influences differing with climate and country, or affliction sent providence. he urged that wounds be kept clean rather than given poultices. he started clinical diagnosis and treatment by highly specific medicines, instead of cure-alls. for instance, he used alkalies to treat disease, such as gout, indicated by certain substances in the urine, which also started urinalysis. he perceived that syphillis was caused by contagion and used mercury to cure it. he found curative powers also in opium, sulphur, iron, and arsenic. opium was made by drying and cooking the capsule of the poppy and was one of the few really effective early drugs. paracelsus urged alchemists to try to prepare drugs from minerals for the relief of suffering. he claimed to acquire knowledge of cures through spiritual contacts to occult wisdom. he believed that a human being has an invisible body as well as a visible one and that it is closely attuned to imagination and the spiritual aspect of an individual. he noticed that one's attitudes and emotions, such as anger, could affect one's health. he sometimes used suggestion and signs to help a patient form mental images, which translated into cures. he saw insanity as illness instead of possession by evil spirits. understanding of the celestial world began to change. contemporary thought was that the nature of all things was to remain at rest, so that movement and motion had to be explained by causes. the earth was stationary and the heavens were spherical and revolved around the earth every twenty-four hours. the universe was finite. the firmament extended outward in a series of rotating, crystalline, ethereal spheres to which were attached the various points of celestial geography. first came the circle of the moon. the sun orbited the earth. the fixed stars rotated on an outer firmament. finally, there was the abode of god and his heavenly hosts. different principles ruled the celestial world; it was orderly, stable, ageless, and enduring. but the world of man changed constantly due to its mixed four elements of air, earth, fire, and water each trying to disentangle itself from the others and seeking to find its natural location. the heavenly spheres could affect the destinies of men, such as through fate, fortune, intelligence, cherubim, seraphim, angels, and archangels. astrologers read the celestial signs and messages. then a seed of doubt was cast on this theory by nicholaus copernicus, a timid monk in poland, who found inconsistencies in ptolemy's work, but saw similarity in the movements of the earth and other planets. he inferred from planetary movements that their motion could be explained simply if they were revolving in circular paths around the sun, rather than around the earth. in his book of , he also expressed his belief that the earth also revolved around the sun. this idea so shocked the world that the word "revolution" became associated with radical change. he regarded it as more likely that the earth rotated than that the stars moved with great speed in their large orbits. he proposed that the earth spins on its own axis about once every twenty-four hours, with a spin axis at about a / degree tilt from the orbital axis, thus explaining a slow change in the overall appearances of the fixed stars which had been observed since the time of ptolemy. he deduced from astronomical measurements that the correct order of the planets from the sun was: mercury, venus, earth, mars, jupiter, and saturn. the church considered his ideas heretical because contradictory to its dogma that man and the earth were the center of the universe. a central sun evoked images of pagan practices of sun worship. - the law - a person having land in socage or fee simple may will and devise his land by will or testament in writing. a person holding land by knight's service may will and devise by his last will and testament in writing part of his land to his wife and other parts of his land to his children, as long as / of entailed land is left to the king. anyone serving the king in war may alienate his lands for the performance of his will, and if he dies, his feoffees or executors shall have the wardship of his heir and land. a person who leases land for a term of years, even if by indenture or without a writing, may have a court remedy as do tenants of freehold for any expulsion by the lessor which is contrary to the lease, covenant, or agreement. these termers, their executors and assigns, shall hold and enjoy their terms against the lessors, their heirs and assigns. the lessor shall have a remedy for rents due or waste by a termer after recovering the land as well as if he had not recovered the land. a lord may distrain land within his fee for rents, customs, or services due without naming the tenant, because of the existence of secret feoffments and leases made by their tenants to unknown persons. anyone seised of land to the use or trust of other persons by reason of a will or conveyance shall be held to have lawful seisin and possession of the land, because by common law, land is not devisable by will or testament, yet land has been so conveyed, which has deprived married men of their courtesy, women of their dower, the king of the lands of persons attainted, the king of a year's profits from felons' lands, and lords of their escheats. (this was difficult to enforce.) a woman may not have both a jointure [promise of husband to wife of property or income for life after his death] and dower of her husband's land. (persons had purchased land to hold jointly with their wives) a sale of land must be in writing, sealed, and registered in its county with the clerk of that county. if the land is worth less than s. per year, the clerk is paid d. if the land exceeds s. yearly, the clerk is paid s. d. an adult may lease his lands or tenements only by a writing under his seal for a term of years or a term of life, because many people who had taken leases of lands and tenements for a term of years or a term of lives had to spend a lot for repair and were then evicted by heirs of their lessors. a husband may not lease out his wife's land. no woman-covert, child, idiot, or person of insane memory may devise land by will or testament. the land of tenants-in-common may be partitioned by them so that each holds a certain part. no bishop or other official having authority to take probate of testaments may take a fee for probating a testament where the goods of the testator are under s., except that the scribe writing the probate of the testament may take d., and for the commission of administration of the goods of any man dying intestate, being up to s, may be charged d. where the goods are over s. but up to s. sterling, probate fees may be s. d. at most, whereof the official may take s. d. at most, with d. residue to the scribe for registering the testament. where the goods are over s. sterling, probate fees may be s. at most, whereof the official may take s. d. at most, with s. d. residue to the scribe, or the scribe may choose to take d. per lines of writing of the testament. if the deceased had willed by his testament any land to be sold, the money thereof coming nor the profits of the land shall not be counted as the goods or chattel of the deceased. where probate fees have customarily been less, they shall remain the same. the official shall approve and seal the testament without delay and deliver it to the executors named in such testaments for the said sum. if a person dies intestate or executors refuse to prove the testament, then the official shall grant the administration of the goods to the widow of the deceased person, or to the next of kin, or to both, in the discretion of the official, taking surety of them for the true administration of the goods, chattels, and debts. where kin of unequal degree request the administration, it shall be given to the wife and, at his discretion, other requestors. the executors or administrators, along with at least two persons to whom the deceased was indebted, or to whom legacies were made, or, upon their refusal or absence, two honest kinsmen, shall make an inventory of the deceased's goods, chattels, ware, merchandise, as well moveable as not moveable, and take it upon their oaths to the official. no parish clergyman or other spiritual person shall take a mortuary fee or money from a deceased person with movable goods under the value of s., a deceased woman-covert, a child, a person keeping no house, or a traveler. only one mortuary fee may be taken of each deceased and that in the place where he most dwelled and lived. where the deceased's moveable goods are to the value of s. or more, above his debts paid, and under s., a mortuary up to s. d. may be taken. where such goods are s. or more and under s., mortuary up to s. d. may be taken. where such goods are s. or above, mortuary up to s. may be taken. but where mortuaries have customarily been less, they shall remain the same. executors of a will declaring land to be sold for the payment of debts, performance of legacies to wife and children, and charitable deeds for the health of souls, may sell the land despite the refusal of other executors to agree to such sale. a man may not marry his mother, stepmother, sister, niece, aunt, or daughter. any clergy preaching contrary to the king's religious doctrine shall recant for the first offence. he shall abjure and bear a faggot (a badge resembling a faggot of wood which would have been used for burning him as a heretic) for the second offence. if he refuses to abjure or bear a faggot or offends a third time, he shall be burned and lose all his goods. if a layperson teaches, defends, or maintains a religious doctrine other than the king's, he shall recant and be imprisoned for twenty days for the first offence. he shall abjure and bear a faggot if he does not recant or offends a second time. he shall forfeit his goods and suffer perpetual imprisonment if he does not abjure or bear a faggot or offends a third time. the entry of an apprentice into a craft shall not cost more than s. d. after his term, his entry shall not be more than s. d. this replaced the various fees ranging from this to s. no master of a craft may require his apprentice to make an oath not to compete with him by setting up a shop after the term of his apprenticeship. no alien may take up a craft or occupation in the nation. no brewer of ale or beer to sell shall make wood vessels or barrels, and coopers shall use only good and seasonable wood to make barrels and shall put their mark thereon. every ale or beer barrel shall contain of the king's standard gallons. the price of beer barrels sold to ale or beer brewers or others shall be d. an ale-brewer may employ in his service one cooper only to bind, hoop and pin, but not to make, his master's ale vessels. no butcher may keep a tanning-house. tanned leather shall be sold only in open fairs and markets and after it is inspected and sealed. only people living in designated towns may make cloth to sell, to prevent the ruin of these towns by people taking up both agriculture and cloth-making outside these towns. no one making cloth for sale may have more than one woolen loom or forfeit s. this to protect the weavers' ability to maintain themselves and their families from rich clothiers who keep many looms and employ journeymen and unskillful persons at low wages. no one owning a fulling mill may own a weaving loom. no weaver may own a fulling mill. no one shall shoot in or keep in his house any hand-gun or cross- bow unless he has , s. yearly. no one may hunt or kill hare in the snow since their killing in great numbers by men other than the king and noblemen has depleted them. no one shall take an egg or bird of any falcon or hawk out of its nest on the king's land. no one may disguise himself with hidden or painted face to enter a forest or park enclosed with a wall for keeping deer to steal any deer or hare. ducks and geese shall not be taken with any net or device during the summer, when they haven't enough feathers to fly. but a freeholder of s. yearly may hunt and take such with long bow and spaniels. no one may sell or buy any pheasant except the king's officers may buy such for the king. no butcher may kill any calf born in the spring. no grain, beef, mutton, veal, or pork may be sold outside the nation. every person with acres of agricultural land, shall sow one quarter acre with flax or hemp-feed. all persons shall kill crows on their land to prevent them from eating so much grain at sowing and ripening time and destroying hay stacks and the thatched roofs of houses and barns. they shall assemble yearly to survey all the land to decide how best to destroy all the young breed of crows for that year. every village and town with at least ten households shall put up and maintain crow nets for the destruction of crows. no land used for raising crops may be converted to pasture. no woods may be converted to agriculture or pasture. the efforts to enforce these proved these prohibitions were not successful. no one shall cut down or break up dikes holding salt water and fresh water from flooding houses and pastures. no one shall dump tin-mining debris, dung, or rubbish into rivers flowing into ports or take any wood from the walls of the port, so that ships may always enter at low tide. a person may lay out a new highway on his land where the old one has been so damaged by waterways that horses with carriages cannot pass, with the consent of local officials. only poor, aged, and disabled persons may beg. begging without a license is punishable by whipping or setting in the stocks days with only bread and water. alien palm readers shall no longer be allowed into the nation, because they have been committing felonies and robberies. butchers may not sell beef, pork, mutton, or veal from carcasses for more than / penny and / farthing [ / penny] per pound. french wines may not sell at retail for more than d. per gallon. a barrel maker or cooper may sell a beer barrel for d. no longer may aliens bring books into the nation to sell because now there are sufficient printers and book-binders in the nation. no one may buy fresh fish other than sturgeon, porpoise, or seal from an alien to put to sale in the nation. every person with an enclosed park where there are deer, shall keep two tall and strong mares in such park and shall not allow them to be mounted by any short horse, because the breeding of good, swift, and strong horses has diminished. a man may have only as many trotting horses for the saddle as are appropriate to his degree. no one may maintain for a living a house for unlawful games such as bowling, tennis, dice, or cards. no artificer, craftsman, husbandman, apprentice, laborer, journeyman, mariner, fisherman may play these games except at christmas under his master's supervision. noblemen and others with a yearly income of at least , s. may allow his servants to play these games at his house. hemp of flax may not be watered in any river or stream where animals are watered. no one shall sell merchandise to another and then buy back the same merchandise within three months at a lower price. no one shall sell merchandise to be paid for in a year above the sum of s. per s. worth of merchandise. no one shall sell or mortgage any land upon condition of payment of a sum of money before a certain date above the sum of s. per s. per year. no one shall commit forgery by counterfeiting a letter made in another person's name to steal any money, goods, or jewels. no one shall libel by accusing another of treason in writing and leaving it in an open place without subscribing his own name to it. if any servant converts to his own use more than s. worth of jewels, money, or goods from caskets entrusted to him for safekeeping by a nobleman or other master or mistress, it shall be a felony. if a person breaks into a dwelling house by night to commit burglary or murder, is killed by anyone in that house, or a person is killed in self-defense, the killer shall not forfeit any lands or goods for the killing. killing by poisoning shall be deemed murder and is punishable by death. a person who has committed a murder, robbery, or other felony he has committed shall be imprisoned for his natural life and be burned on the hand, because those who have been exiled have disclosed their knowledge of the commodities and secrets of this nation and gathered together to practice archery for the benefit of the foreign realm. if he escapes such imprisonment, he shall forfeit his life. a person convicted or outlawed shall be penalized by loss of life, but not loss of lands or goods, which shall go to his wife as dower and his heirs. buggery may not be committed on any person or beast. no one shall slander or libel the king by speeches or writing or printing or painting. no one shall steal fish from a pond on another's land by using nets or hooks with bait or by drying up the pond. the mayor of london shall appoint householders to supervise watermen rowing people across the thames river because so many people have been robbed and drowned by these rowers. all such boats must be at least feet long and feet wide. no man shall take away or marry any maiden under years of age with an inheritance against the will of her father. any marriage solemnized in church and consummated shall be valid regardless of any prior agreement for marriage. sheriffs shall not lose their office because they have not collected enough money for the exchequer, but shall have allowances sufficient to perform their duties. butchers, brewers, and bakers shall not conspire together to sell their victuals only at certain prices. artificers, workmen and laborers shall not conspire to work only at a certain rate or only at certain hours of the day. no one shall sell any woolen cloth that shrinks when it is wet. only artificers using the cutting of leather, may buy and sell tanned leather and only for the purpose of converting it into made wares. a beggar's child above five years may be taken into service by anyone that will. cattle may be bought only in the open fair or market and only by a butcher or for a household, team, or dairy, but not for resale live. butter and cheese shall not be bought to be sold again except at retail in open shop, fair, or market. no man may enter a craft of cloth-making until he has been an apprentice for seven years or has married a clothiers' wife and practicing the trade for years with her and her servants sorting the wool. no country person shall sell wares such as linen drapery, wool drapery, hats, or groceries by retail in any incorporated town, but only in open fairs. for every sheep there shall be kept one milk cow because of the scarcity of cattle. no clothier may keep more than one wool loom in his house, because many weavers do not have enough work to support their families. no weaver may have more than two wool looms. no cloth-maker, fuller, shearman, weaver, tailor, or shoemaker shall retain a journeyman to work by the piece for less than a three month period. every craftsman who has three apprentices shall have one journeyman. servants in agriculture and bargemen shall serve by the whole year and not by day wages. there shall be a sales tax of d. per pound of wool cloth goods for the crown. all people shall attend church on sundays to remember god's benefits and goodness to all and to give thanks for these with prayers and to pray to be given daily necessities. anyone fighting in church shall be excluded from the fellowship of the parish community. no one shall use a rope or device to stretch cloth for sale so to make it appear as more in quantity than it is. no one may sell cloth at retail unless the town where it was dressed, dyed, and pressed has placed its seal on the cloth. cloth may not be pressed with a hot press, but only with a cold press. offices may not be bought and sold, but only granted by justices of the royal courts. no one going from house to house to repair metal goods or sell small goods he is carrying may do this trade outside the town where he lives. no one may sell ale or beer without a license, because there have been too many disorders in common alehouses. offenders may be put in the town or county gaol for three days. only persons with yearly incomes of , s. or owning goods worth , s. may store wine in his house and only for the use of his household. no one may sell forged iron, calling it steel, because the edged tools and weapons made from it are useless. parish communities shall repair the highways for four days each year using oxen, cart, plough, shovels, and spades. the children of priests are declared legitimate so they may inherit their ancestor's lands. the priests may be tenants by courtesy after the death of their wives of such land and tenements that their wives happened to be seized of in fee simple or in fee tail, during the spousals. the king's proclamations shall be observed and kept as though they were acts of parliament. the penalty shall not be more than that stated in the proclamation, except for heresy. the year books ceased in . - judicial procedure - by royal proclamation of , only those admitted by the chancellor and two chief justices may practice as counsel or in legal pleading in any of the king's courts. also, such a person must be serjeant-at-law, reader, utter barrister, or an eight-year fellow of one of the four houses of court, except in the court of common pleas. doctors of the civil law may practice in the church or chancery courts. justices shall tax inhabitants of the county for building gaols throughout the nation, for imprisonment of felons, to be kept by the sheriffs and repaired out of the exchequer. piracy at sea or in river or creek or port are adjudicated in counties because of the difficulty of obtaining witnesses from the ship, who might be murdered or who are on other voyages on the sea, for adjudication by the admiral. piracy and murder on ships is punishable by death only after confession or proof by disinterested witnesses. land held by tenants in common may be partitioned by court order, because some of these tenants have cut down all the trees to take the wood and pulled down the houses to convert the material to their own use. persons worth s. a year in goods shall be admitted in trials of felons in corporate towns although they have no freehold of land. each justice of the high courts may employ one chaplain. the privy council took the authority of the star chamber court, which organized itself as a specialty court. also, a specific group of full-time councilors heard pleas of private suitors. the bishops, nobility, and justices of the peace were commanded to imprison clergy who taught papal authority. justices of the peace and sheriffs were to watch over the bishops. the justices of assize were to assess the effectiveness of the justices of the peace as well as enforce the treason statute on circuit. the criminal court went outside the common law to prosecute political enemies, e.g. by dispensing with a jury. since the nation was now peaceful, expediency was no longer needed, so judicial procedures again became lengthy and formal with records. the chancery court enforced the obligations known as trusts, in the name of equity and good conscience. it adopted every analogy that the common law presented. its procedure was to force the defendant to answer on oath the charges that were brought against him. all pleadings and usually testimony was put into writing. much evidence consisted of written affidavits. there was no jury. the chancery court did not record its decisions apparently because it did not see itself s bound by precedents. witnesses could be sworn in to state pertinent facts necessary for full understanding and adjudication of cases, because they are reliable now that there is no unlicensed livery and maintenance and because jurors no longer necessarily know all the relevant facts. when acting as the highest court, the house of lords was presided over by the chancellor, who sat on his prescribed place on the wool sacks. it had the following jurisdiction: trial of peers for high treason and serious felony, appeals on writs of error from courts of the common law, and impeachment. the house of lords served as judge of impeachment cases, whereas the house of commons served as fact finders. the leet court and sheriff's turn court have much less jurisdiction. they may dispose of presentments of trespasses and nuisances, but not felony or question of freehold. such presentments are made by a set of at least twelve men, and the presented person is amerced there and then. - - - chapter - - - - the times: - - queen elizabeth i was intelligent, educated, and wise about human nature. when young, she was a brilliant student and studied the bible, and greek and roman history, philosophy, literature, and oratory. she wrote in english, latin, french, and italian. she read greek, including the greek testament, greek orators, and greek dramatists at age seven, when the first professorship of greek was founded at cambridge university. learning from books was one of her highest values throughout her life. she was so influenced by her reading of cicero that she acquired his style of writing. her chief secretary william cecil was so guided by cicero's "offices" that he carried a copy in his pocket. cicero opined that government officials' duty was to make the safety and interest of citizens its greatest aim and to design all their thoughts and endeavors without ever considering personal advantage. government was not to serve the interest of any one group to the prejudice or neglect of the rest, for then discord and sedition would occur. furthermore, a ruler should try to become loved and not feared, because men hated those whom they feared, and wished dead those whom they hated. therefore obedience proceeding from fear could not last, whereas that which was the effect of love would last forever. an oppressor ruling by terror will be resented by the citizens, who in secret will choose a worthier person. then liberty, having been chained up, would be unleashed more fiercely than otherwise. to obtain the peoples' love, a ruler should be kind and bountiful. to obtain the peoples' trust, a ruler should be just, wise, and faithful. to demonstrate this, a ruler should be eloquent in showing the people an understanding better than theirs, the wisdom to anticipate events, and the ability to deal with adverse events. and this demonstration should be done with modesty. one cannot get the peoples' trust by vain shows, hypocritical pretenses, composed countenances, and studied forms of words. the first goal of a ruler is to take care that each individual is secured in the quiet enjoyment of his own property. the second goal is to impose taxes that are not burdensome. the third goal is to furnish the people with necessaries. the law should be enforced keeping in mind that its fundamental purpose is to keep up agreement and union among citizens. elizabeth cared deeply for the welfare of all citizens of whatever class. she was sensitive to public opinion and was loved by her people. she respected truth and was sincere, avoiding guile or fraud. she claimed that she had never dishonored her tongue with a falsehood to anyone. she expected that any covert manipulations by monarchs would be found out and therefore would damage their credibility. "it becometh therefor all of our rank to deal sincerely; lest if we use it not, when we do it we be hardly believed." she was frugal and diplomatically avoided unnecessary wars, saying that her purse was the pockets of her people. england was a small protestant nation threatened by the larger catholic nations of france and spain. when elizabeth flirted and talked of marriage with foreign princes, they laid aside any thoughts of conquering england by war, hoping to obtain it my marriage. not only did she not seek to conquer other lands, but she turned down an invitation to rule the netherlands. her credit reputation was so good that she could always get loans at small rates of interest from other countries. tudor government was paternalistic, curtailing cutthroat competition, fixing prices and wages, and licensing production under grants of monopoly to achieve a stable and contented society and a fair living for all. elizabeth prayed for divine guidance as in this prayer: "almighty god and king of all kings, lord of heaven and earth, by whose leave earthly princes rule over mortals, when the most prudent of kings who administered a kingdom, solomon, frankly confessed that he was not capable enough unless thou broughtst him power and help, how much less am i, thy handmaid, in my unwarlike sex and feminine nature, adequate to administer these thy kingdoms of england and of ireland, and to govern an innumerable and warlike people, or able to bear the immense magnitude of such a burden, if thou, most merciful father didst not provide for me (undeserving of a kingdom) freely and against the opinion of many men. instruct me from heaven, and give help so that i reign by thy grace, without which even the wisest among the sons of men can think nothing rightly. send therefore, o inexhaustible fount of all wisdom, from thy holy heaven and the most high throne of thy majesty, thy wisdom to be ever with me, that it may keep watch with me in governing the commonwealth, and that it may take pains, that it may teach me, thy handmaid, and may train me that i may be able to distinguish between good and evil, equity and iniquity, so as rightly to judge thy people, justly to impose deserved punishments on those who do harm, mercifully to protect the innocent, freely to encourage those who are industrious and useful to the commonwealth. and besides, that i may know what is acceptable to thee alone, vouchsafe that i wish, dare, and can perform it without paying respect to any earthly persons or things. so that when thou thyself, the just judge, who askest many and great things from those to whom many and great things are entrusted, when thou requirest an exact accounting, charge me not with badly administering my commonwealth and kingdom. but if by human thoughtlessness or infirmity thy handmaid strays from the right in some thing, absolve me of it by thy mercy, most high king and most mild father, for the sake of thy son jesus christ; and at the same time grant that after this worldly kingdom has been exacted of me, i may enjoy with thee an eternity in thy heavenly and unending kingdom, through the same jesus christ, thy son and the assessor of thy kingdom, our lord and mediator. to whom with thee and with the holy spirit, one everlasting king, immortal, invisible, only-wise god, be all honor and glory forever and ever, amen. elizabeth promoted commercial speculations, which diffused a vast increase of wealth among her people. the elizabethan era was one of general prosperity. her good spirits and gayness created a happy mood in the nation. she loved dancing and madrigal music was popular. she came to dress elaborately and fancifully. her dresses were fitted not only at the waist, but along the torso by a long and pointed bodice stiffened with wood, steel, or whalebone. her skirt was held out with a petticoat with progressively larger hoops. there were two layers of skirt with the top one parted to show the bottom one. the materials used were silks, satins, velvets, and brocades. on her dress were quiltings, slashings, and embroidery. it was covered with gold ornaments, pearls, gems, and unusual stones from america. she wore decorated gloves. ladies copied her and discarded their simple over-tunics for elaborate dresses. the under-tunic was now becoming a petticoat and the over-tunic a dress. their under-tunics became petticoats. often they also wore a fan with a mirror, a ball of scent, a miniature portrait of someone dear to them, and sometimes a watch. single ladies did not wear hats, but had long, flowing hair and low cut dresses showing their bosoms. married ladies curled their hair and wore it in high masses on their heads with jewels interwoven into it. both gentlemen and ladies wore hats both indoors and outside and large, pleated collars around their necks (with the newly discovered starch), perfume, rings with stones or pearls, and high-heeled shoes. gentlemen's' tight sleeves, stiffened and fitted doublet with short skirt, and short cloak were ornamented and their silk or velvet hats flamboyant, with feathers. at their leather belts they hung pouches and perhaps a watch. they wore both rapiers [swords with cutting edges] and daggers daily as there were many quarrels. there were various artistic beard cuts and various lengths of hair, which was often curled and worn in ringlets. barbers sought to give a man a haircut that would favor his appearance, for instance a long slender beard for a round face to make it seem narrower and a broad and large cut for a lean and straight face. men now wore stuffed breeches and stockings instead of long hosen. some wore a jewelled and embroidered codpiece between their legs to emphasize their virility. both gentlemen and ladies wore silk stockings and socks over them and then boots. coats dipped in boiled linseed oil with resin served as raincoats. both men and women wore velvet or wool full length nightgowns with long sleeves and fur lining and trimming to bed, which was the custom for the next years. fashions changed every year due to the introduction of cheaper, lighter, and less durable cloths by immigrant craftsmen. when elizabeth became old, she had a wig made to match her youthful long red hair. other ladies then began wearing wigs. every few years, elizabeth issued a proclamation reminding people of the apparel laws and reiterating certain provisions which had been disregarded. for instance, only the royal family and dukes and marquises in mantles of the garter could wear the color purple. one had to be at least an earl to wear gold or silver or sable. only dukes, marquises, earls and their children, barons, and knights of the order could wear imported wool, velvet, crimson, scarlet, or blue, or certain furs. except that barons' sons, knights, or men that could dispend at least pounds yearly could wear velvet in gowns or coats, embroidery, and furs of leopards. spurs, swords, rapiers, daggers, and woodknives were restricted to knights and barons' sons or higher. a man who could dispend at least pounds per year could wear taffeta, satin, damask, or cloth made of camels' hair and silk, in his outer garments. one had to be the son and heir or the daughter of a knight or wife of said son or a man who could dispend pounds yearly or had pounds worth in goods to wear silk in one's hat, bonnet, nightcap, girdle, scabbard, or hose. yeomen, husbandmen, serving men, and craftsmen were very restricted in what they could wear. poor men wore skirted fustian tunics, loose breeches, and coarse stockings or canvas leggings. women spent much of their time doing needlework and embroidery. since so many of the women who spent their days spinning were single, unmarried women became known as "spinsters". children wore the same type of apparel as their elders. they were given milk at meals for good growth. it was recognized that sickness could be influenced by diet and herbs. sickness was still viewed as an imperfect balance of the four humors. there were many lifestyle possibilities in the nation: gentleman, that is one who owned land or was in a profession such as a attorney, physician, priest or who was a university graduate, government official, or a military officer; employment in agriculture, arts, sciences; employment in households and offices of noblemen and gentlemen; self-sufficient farmers with their own farm; fisherman or mariner on the sea or apprentice of such; employment by carriers of grain into cities, by market towns, or for digging, seeking, finding, getting, melting, fining, working, trying, making of any silver, tin, lead, iron, copper, stone, coal; glassmaker. typical wages in the country were: fieldworkers - d. a day, ploughmen s. a week with board, shepherd d. a week and board, his boy / d., hedgers d. a day, threshers - d. depending on the grain, thatching for five days d., master mason or carpenter or joiner d. a day and food or d. without food, a smith d. a day with food, a bricklayer / d. a day with food, a shoemaker d. a day with food. these people lived primarily on food from his own ground. there was typical work for each month of the year in the country: january - ditching and hedging after the frost broke, february - catch moles in the meadows, march - protect the sheep from prowling dogs, april - put up hop poles, sell bark to the tanner before the timber is felled, fell elm and ash for carts and ploughs, fell hazel for forks, fell sallow for rakes, fell horn for flails, may - weed and hire children to pick up stones from the fallow land, june - wash and shear the sheep, july - hay harvest, august - wheat harvest, september and october - gather the fruit, sell the wool from the summer shearing, stack logs for winter, buy salt fish for lent in the town and lay it up to dry, november - have the chimneys swept before winter, thresh grain in the barn, december - grind tools, repair yokes, forks, and farm implements, cover strawberry and flower beds with straw to protect them from the cold, split kindling wood with beetle and wedge, tan their leather, make leather jugs, make baskets for catching fish, and carve wood spoons, plates, and bowls. there was a wave of building and renovation activity in town and country. housing is now, for the first time, purely for dwelling and not for defense. houses were designed symmetrically with decorative features instead of a haphazard addition of rooms. windows were large and put on the outer walls instead of just inside the courtyard. a scarcity of timber caused proportionally more stone to be used for dwelling houses and proportionately more brick to be used for royal palaces and mansions. the rest of the house was plaster painted white interspersed with vertical, horizontal, and sloping timber, usually oak, painted black. there were locks and bolts for protection from intruders. the hall was still the main room, and usually extended up to the roof. richly carved screens separated the hall from the kitchen. the floors were stone or wood, and sometimes tile. they were often covered with rushes or plaited rush mats, on which incomers could remove the mud from their boots. some private rooms may have carpets on the floor. walls were smoothly plastered or had carved wood paneling to control drafts. painted cloths replaced tapestries on walls. iron stands with candles were hung from the ceiling and used on tables. plastered ceilings and a lavish use of glass made rooms lighter and cozy. broad and gracious open stairways with carved wood banisters, which replaced the narrow winding stone steps of a circular stairwell. most houses had several ornamented brick chimneys and clear, but uneven, glass in the windows. there were fireplaces in living rooms, dining rooms, kitchen, and bedrooms, as well as in the hall and great chamber. parlors were used for eating and sitting only, but not for sleeping. closets were rooms off bedrooms in which one could read and write on a writing table, and store one's books, papers, maps, calendar, medals, collections, rarities, and oddities. sometimes there was a study room or breakfast room as well. a gentleman used his study not only to read and to write, but to hold collections of early chronicles, charters, deeds, copied manuscripts, and coins that reflected the budding interest in antiquarianism; and to study his family genealogy, for which he had hired someone to make an elaborate diagram. he was inclined to have a few classical, religious, medical, legal, and political books there. rooms were more spacious than before and contained oak furniture such as enclosed cupboards, cabinets, buffets from which food could be served, tables, chairs and benches with backs and cushions, sometimes with arms, lidded chests for storing clothes and linens, and occasionally chests of drawers or wardrobes, either hanging or with shelves, for clothes. chests of drawers developed from a drawer at the bottom of a wardrobe. carpeting covered tables, chests, and beds. family portraits decorated some walls, usually in the dining room. great houses had a wardrobe chamber with a fireplace in front of which the yeoman of the wardrobe and his assistants could repair clothes and hangings. separate bedchambers replaced bed-sitting rooms. bedrooms all led out of each other. the lady's chamber was next to her lord's chamber, and her ladies' chambers were close to her chamber. but curtains on the four poster beds with tops provided privacy and warmth. beds had elaborately carved bedsteads, sheets, and a feather cover as well as a feather mattress. often family members, servants, and friends shared the same bed for warmth or convenience. each bedroom typically had a cabinet with a mirror, e.g. of burnished metal or crystal, and comb on top. one brushed his teeth with tooth soap and a linen cloth, as physicians advised. each bedroom had a pitcher and water bowl, usually silver or pewter, for washing in the morning, and a chamber pot or a stool with a hole over a bucket for nighttime use, and also fragrant flowers to override the unpleasant odors. the chamber pots and buckets were emptied into cesspits. a large set of lodgings had attached to it latrines consisting of a small cell in which a seat with a hole was placed over a shaft which connected to a pit or a drain. the servants slept in turrets or attics. elizabeth had a room just for her bath. more than medieval castles and manor houses, mansions were designed with privacy in mind. breakfast was substantial, with meat, and usually eaten in one's bedroom. the great hall, often hung around with bows, pikes, swords, and guns, was not abandoned, but the family took meals there only on rare occasions. instead they withdrew to a parlor, for domestic use, or the great chamber, for entertaining. parlors were situated on the ground floor: the family lived and relaxed there, and had informal meals in a dining parlor. the formal or "state" rooms were on the first floor above the ground floor, usually comprising a great chamber, a withdrawing chamber, one or more bedchambers, and a long gallery. each room had carved chairs and cabinets. taking a meal in the great chamber involved the same ceremonial ritual as in the manorial great chamber dating from the s. the table was covered with a linen cloth. some sat above the fancy silver salt cellar and pepper, and some sat below. grace was said before the meal. noon dinner and supper were served by sewer, carver, cupbearer, and assistants. the lady of the house sat in a chair at the upper end of the table and was served first. fine clear italian glass drinking vessels replaced even gold and silver goblets. they ate from silver dishes with silver spoons. some gentry used two-pronged forks. there was great plenty and variety of meats to all but the poorer classes: beef, mutton, veal, lamb, kid, pork, hare, capon, red deer, fish and wild fowl as well as the traditional venison and brawn [boar]. kitchen gardens and orchards supplied apricots, almonds, gooseberries, raspberries, melons, currants, oranges, and lemons as well as the traditional apples, pears, plums, mulberries, quinces, pomegranates, figs, cherries, walnuts, chestnuts, hazel nuts, filberts, almonds, strawberries, blackberries, dewberries, blueberries, and peaches. also grown were sweet potatoes, artichokes, cabbages, turnips, broad beans, peas, pumpkins, cucumbers, radishes, carrots, celery, parsnips, onions, garlic, leeks, endive, capers, spinach, sorrel, lettuce, parsley, mustard, cress, sage, tarragon, fennel, thyme, mint, savory, rhubarb, and medicinal herbs. the well-to-do started to grow apricots, peaches, and oranges under glass. sugar was used to make sweet dishes. toothpicks made of brass or silver or merely a stiff quill were used. after the meal, some men and women were invited for conversation in a withdrawing or drawing chamber. some might take a walk in the gardens. after the upper table was served, the food was sent to the great hall to the steward and high household officers at the high table and other servants: serving men and women, bakers, brewers, cooks, pot cleaners, laundresses, shepherds, hogherds, dairy maids, falconers, huntsmen, and stable men. what was left was given to the poor at the gates of the house. great chambers were used primarily for meals, but also for music; dancing; plays; masques; playing cards, dice, backgammon, or chess; and daily prayers if there was no chapel. the idea of a long gallery was copied from henry vii and was used for exercise, recreation such as music and dancing, and private conversations. without the necessity of fortifications, the estate of a noble or gentleman could spread out to include not only a garden for the kitchen, but extensive orchards and beautiful formal gardens of flowers and scrubs, sometimes with fountains and maybe a maze of hedges. trees were planted, pruned, and grafted onto each other. householders had the responsibility to teach their family and servants religion and morals, and often read from the bible to them. many thought that the writers of the bible wrote down the exact words of god, so the passages of the bible should be taken literally. a noble lord made written rules with penalties for his country household, which numbered about a hundred, including family, retainers, and servants. he enforced them by fines, flogging, and threats of dismissal. the lady of the house saw that the household, held together as an economic and social unit. the noble's family, retainers, guests, and the head servants, such as chaplain and children's tutor, and possibly a musician, dined together at one table. the family included step children and married sons and daughters with their spouses. young couples often lived with the parents of one of them. chandeliers of candles lit rooms. there were sandglass clocks. popular home activities included reading, conversation, gardening, and music-making. smoking tobacco from a clay pipe and taking snuff became popular with men. for amusement, one of the lord's household would take his place in managing the estate for twelve days. he was called the "lord of misrule", and mimicked his lord, and issued comic orders. clothes were washed in rivers and wells. at spring cleanings, windows were opened, every washable surface washed, and feather beds and pillows exposed to the sun. most dwellings were of brick and stone. only a few were of wood or mud and straw. the average house was now four rooms instead of three. yeomen might have six rooms. a weaver's house had a hall, two bedrooms, and a kitchen besides the shop. farmers might have two instead of one room. a joiner had a one-room house with a feather bed and bolster. even craftsmen, artificers and simple farmers slept on feather beds on bed frames with pillows, sheets, blankets, and coverlets. loom tapestry and painted cloth was hung to keep out the cold in their single story homes. they also had pewter spoons and plates, instead of just wood or earthenware ones. even the poorer class had glass drinking vessels, though of a coarse grade. the poor still used wooden plates and spoons. laborers had canvas sheets. richer farmers would build a chamber above the hall, replacing the open hearth with a fireplace and chimney at a wall. poorer people favored ground floor extensions, adding a kitchen or second bedchamber to their cottages. kitchens were often separate buildings to reduce the risk of fire. roasting was done on a spit and baking in irons boxes placed in the fire or in a brick oven at the side of the fireplace. sometimes dogs were used to turn a spit by continual running in a treadmill. some people lived in hovels due to the custom in many places that a person could live in a home he built on village waste land if he could build it in one night. yeomen farmers still worked from dawn to dusk. mixed farming began. in this, some of the arable land produced food for man and the rest produced food for sheep, cattle, pigs, and poultry. this was made possible by the introduction of clover, artificial grasses, and turnip and other root crops for the animals. since the sheep ate these crops in the field, they provided manure to maintain the fertility of the soil. this meant that many animals could be maintained throughout the winter instead of being slaughtered and salted. farmers' wives used looms as well as spinning wheels with foot treadles. since animals could now be kept through the winter, salted meat and salted fish were no longer the staple food of the poorer people during the winter. farm laborers ate soup, porridge, milk, cheese, bacon, and beer or mead (depending on the district), and dark barley or rye bread, which often served as his plate. gentlemen ate wheat bread. there was a scarcity of fruits and vegetables that adversely affected the health of the affluent as well as of the poor due to the overall decline in farming. during winter, there were many red noses and coughing. the value of grain and meat rose compared to wool. grain became six times its value in the previous reign. wool fell from s. d. per tod to s. so sheep-farming, which had taken about % of the arable land, was supplanted somewhat by crop-raising and the rural population could be employed for agriculture. in some places, the threefold system of rotation was replaced by alternating land used for crops with that used for pasture. the necessity of manuring and the rotation of crops and grasses such as clover for enrichment of the soil were recognized. wheat, rye, barley, peas, and beans were raised. there was much appropriation of common land by individual owners by sale or force. many farms were enclosed by fences or hedges so that each holder could be independent of his neighbors. red and black currants, rhubarb, apricots, and oranges were now grown. these independent farmers could sell wool to clothiers, and butter, cheese, and meat to the towns. they also often did smithwork and ironwork, making nails, horseshoes, keys, locks, and agricultural implements to sell. a laborer could earn d. a day in winter and d. a day in summer. unfree villeinage ceased on the royal estates. but most land was still farmed in common and worked in strips without enclosure. elizabeth made several proclamations ordering the enclosure of certain enclosed land to be destroyed and the land returned to tillage. windmills now had vanes replacing manual labor to change the position of the sails when the wind direction changed. prosperous traders and farmers who owned their own land assumed local offices as established members of the community. the population of the nation was about five million. population expansion had allowed landlords to insist on shorter leases and higher rents, instead of having to choose between accepting a long lease and good rent or allowing their estates to pass out of cultivation. over % of the population were on the margin of subsistence. % of the population lived in the countryside and % in the london and % in the other towns. life expectancy was about years of age. over % was under the age of , while only about % were over . fluctuations in rates of population growth were traceable back to bad harvests and to epidemics and the two were still closely related to each other: "first dirth and then plague". most of london was confined within the city wall. there were orchards and gardens both inside and outside the walls, and fields outside. flower gardens and nurseries came into existence. no part of the city was more than a ten minute walk to the fields. some wealthy merchants had four story mansions or country houses outside the city walls. the suburbs of the city of london grew in a long line along the river; on the west side were noblemen's houses on both sides of the strand. east of the tower was a seafaring and industrial population. goldsmiths' row was replete with four story houses. a few wealthy merchants became money- lenders for interest, despite the law against usury. the mayor of london was typically a rich merchant prince. each trade occupied its own section of the town and every shop had its own signboard, for instance, hat and cap sellers, cloth sellers, grocers, butchers, cooks, taverns, and book-sellers. many of the london wards were associated with a craft, such as candlewick ward, bread st. ward, vintry ward, and cordwainer ward. some wards were associated with their location in the city, such as bridge ward, tower ward, aldgate ward, queenhithe ward, and billingsgate ward. people lived at the back or on the second floor of their shops. in the back yard, they grew vegetables such as melons, carrots, turnips, cabbages, pumpkins, parsnips, and cucumbers; herbs; and kept a pig. the pigs could still wander through the streets. hyde park was the queen's hunting ground. london had a small zoo of ten animals, including a lion, tiger, lynx, and wolf. london was england's greatest manufacturing city. by the greatest trading companies in london ceased to be associated only with their traditional goods and were dominated by merchants whose main interest was in the cloth trade. ambitious merchants joined a livery company to become freemen of the city and for the status and social benefits of membership. the companies still made charitable endowments, had funeral feasts, cared for the welfare of guild members, and made lavish displays of pageantry. they were intimately involved with the government of the city. they supplied members for the court of aldermen, which relied on the companies to maintain the city's emergency grain stores, to assess and collect taxes, to provide loans to the crown, to control prices and markets, to provide armed men when trouble was expected, and to raise armies for the crown at times of rebellion, war, or visits from foreign monarchs. from about to , there were % involved in cloth or clothing industries such as weavers, tailors, hosiers, haberdashers, and cappers. % were leatherworkers such as skinners; tanners; those in the heavy leather crafts such as shoemakers, saddlers, and cobblers; and those in the light leather crafts such as glovers and pursers. another % worked in metals, such as the armorers, smiths, cutlers, locksmiths, and coppersmiths. % worked in the building trades. the victualling trades, such as bakers, brewers, butchers, costermongers [sold fruit and vegetables from a cart or street stand], millers, fishmongers, oystermen, and tapsters [bartender], grew from % before to % by . of london's workforce, % were involved in production; % were merchants before ; % were merchants by ; % were transport workers such as watermen, sailors, porters, coachmen, and shipwrights; and - % were professionals and officials (this number declining). life in london was lived in the open air in the streets. the merchant transacted business agreements and the attorney saw his clients in the street or at certain pillars at st. paul's church, where there was a market for all kinds of goods and services, including gentlemen's valets, groceries, spirits, books, and loans, which continued even during the daily service. some gentlemen had offices distant from their dwelling houses such as attorneys, who had a good income from trade disputes and claims to land, which often changed hands. plays and recreation also occurred in the streets, such as performances by dancers, musicians, jugglers, clowns, tumblers, magicians, and men who swallowed fire. the churches were continuously open and used by trades and peddlers, including tailors and letter-writers. water carriers carried water in wood vessels on a shoulder from the thames river or its conduits to the inhabitants three gallons at a time. a gentleman concocted an engine to convey thames water by lead pipes up into men's houses in a certain section of the city. soldiers, adventurers, physicians, apprentices, prostitutes, and cooks were all distinguishable by their appearances. an ordinance required apprentices to wear long blue gowns and white breeches with stockings, with no ornamentation of silk, lace, gold or silver and no jewelry. they could wear a meat knife, but not a sword or dagger. apprentices lived with their masters and worked from or a.m. to p.m. some people knitted wool caps as they walked to sell when finished. there were sections of town for booksellers, butchers, brewers, hosiers, shoemakers, curriers, cooks, poulters, bow makers, textwriters, pattenmakers, and horse and oxen sellers. large merchant companies had great halls for trade, such as the mercers, grocers, drapers, fishmongers, and goldsmiths. the other great guilds were the skinners, merchant tailers, haberdashers, salters, ironmongers, vintners, and clothworkers. smaller guilds were those of the bakers, weavers, fruiterers, dyers, thames watermen and lightermen, carpenters, joiners, turners, and parish clerks. the guilds insured quality by inspecting goods for a fee. about , mercer and merchant adventurer thomas gresham established the royal exchange as a place for merchants and brokers to meet for business purposes. it became the center of london's business life. its great bell rang at midday and at p.m. its courtyard was lined with shops that rented at s. yearly and became a popular social and recreational area. gresham formulated his law that when two kinds of money of equal denomination but unequal intrinsic value are in circulation at the same time, the one of greater value will tend to be hoarded or exported, i.e. bad money will drive good money out of circulation. the work-saving knitting frame was invented in by minister william lee; it knit crosswise loops using one continuous yarn and was operated by hand. the stocking knitters, who knitted by hand, put up a bitter struggle against its use and chased lee out of the country. but it did come into use. some frame-work stocking knitters paid frame rent for the use of their knitting frames. frame knitting became a scattered industry. by basement services were frequently found in town houses built on restricted sites in london. lastly, provision of water supplies and improved sanitary arrangements reflected concern with private and public health. there was virtually no drainage. in the case of town houses, some owners would go to considerable effort to solve drainage problems, often paying cash to the civic authorities, but sometimes performing some service for the town at court or at westminster, in return for unlimited water or some drainage. most affluent households, including the queen's moved from house to house, so their cesspits could be cleaned out and the vacated buildings aired after use. a few cesspits were made air tight. otherwise, there was extensive burning of incense. refuse was emptied out of front doors and shoveled into heaps on street corners. it was then dumped into the thames or along the highways leading out of town. people put on perfume to avoid the stench. by , the first toilet and water closet, where water flushed away the waste, was built. this provided a clean toilet area all year round. but these toilets were not much used because of sewer smells coming from them. the sky above london was darkened somewhat by the burning of coal in houses. taverns served meals as well as ale. they were popular meeting places for both men and women of all backgrounds to met their friends. men went to taverns for camaraderie and to conduct business. women usually went to taverns with each other. two taverns in particular were popular with the intelligentsia. music was usually played in the background and games were sometimes played. beer made with hops and malt was introduced and soon there were beer drinking contests. drunkenness became a problem. at night, the gates of the city were closed and citizens were expected to hang out lanterns. the constable and his watchmen carried lanterns and patrolled the streets asking anyone they saw why they were out so late at night. crime was rampant in the streets and criminals were executed near to the crime scene. there were a few horse-drawn coaches with leather flaps or curtains in the unglazed windows to keep out the weather. the main thoroughfare in london was still the thames river. nobles, peers, and dignitaries living on the thames had their own boats and landings. also at the banks, merchants of all nations had landing places where ships unloaded, warehouses, and cellars for goods and merchandise. swans swam in the clear bright water. watermen rowed people across the thames for a fee. in southwark were theaters, outlaws, cutpurses, prostitutes, and prisons. in southwark became the th and last ward of the city. in the summer, people ate supper outside in public. as of old times, brokers approved by the mayor and aldermen made contracts with merchants concerning their wares. some contracts included holding wares as security. some craftsmen and manual workers extended this idea to used garments and household articles, which they took as pawns, or security for money loaned. this began pawn brokerage, which was lucrative. the problem was that many of the items pawned had been stolen. elizabeth had good judgment in selecting her ministers and advisors for her privy council, which was organized like henry viii's privy council. the queen's privy council of about twelve ministers handled foreign affairs, drafted official communiques, issued proclamations, supervised the county offices: the justices of the peace, chief constables, sheriffs, lord lieutenants, and the county militias. it fixed wages and prices in london, advised justices of the peace on wages elsewhere, and controlled exports of grain to keep prices down and supplies ample. it banned the eating of meat two days a week so that the fishing industry and port towns would prosper. when grain was scarce in , elizabeth made a proclamation against those ingrossers, forestallers, and ingraters of grain who increased its price by spreading false rumors that it was scarce because much of it was being exported, which was forbidden. there were labor strikes in some towns for higher wages after periods of inflation. in , london authorities rounded up the sturdy vagabonds and set them to work cleaning out the city ditches for d. per day. elizabeth did not allow any gentleman to live in london purely for pleasure, but sent those not employed by the court back to their country manors to take care of and feed the poor of their parishes. her proclamation stated that "sundry persons of ability that had intended to save their charges by living privately in london or towns corporate, thereby leaving their hospitality and the relief of their poor neighbors, are charged not to break up their households; and all others that have of late time broken up their households to return to their houses again without delay." she never issued a license for more than retainers. she was partially successful in stopping justices of the peace and sheriffs from wearing the liveries of great men. she continued the policy of henry vii to replace the rule of force by the rule of law. service of the crown and influence at court became a better route to power and fortune than individual factions based on local power structures. at the lowest level, bribery became more effective than bullying. the qualities of the courtier, such as wit, and the lawyer became more fashionable than the qualities of the soldier. most of the men in elizabeth's court had attended a university, such as francis bacon, son of the lord keeper, who became a writer, attorney, member of the commons, and experimental philosopher, and walter ralegh, the sea-fighter and writer, who had a humble origin. many wives and daughters of privy councilors attended the queen in her privy chamber. most of the knights or gentlemen of the royal household were also members of parliament or justices of the peace for certain districts in the counties. instead of the office of chancellor, which was the highest legal office, elizabeth appointed a man of common birth to be lord keeper of the great seal; she never made a lord keeper a peer. elizabeth encouraged her lords to frankly make known their views to her, in public or in private, before she decided on a course of action. she had affectionate nicknames for her closest courtiers, and liked to make puns. the rooms of the queen were arranged as they had been under henry viii: the great hall was the main dining room where the servants ate and which elizabeth attended on high days and holidays; the great chamber was the main reception room, where her gentlemen and yeomen of the guard waited; the presence chamber was where she received important visitors; beyond lay her privy chamber and her bedchamber. she ate her meals in the privy chamber attended only by her ladies. she believed that a light supper was conducive to good health. the lord chamberlain attended the queen's person and managed her privy chamber and her well-born grooms and yeomen and ladies-in-waiting. the lord steward managed the domestic servants below the stairs, from the lord treasurer to the cooks and grooms of the stable. the court did not travel as much as in the past, but became associated with london. elizabeth took her entire court on summer visits to the country houses of leading nobility and gentry. courtiers adopted symbolic "devices" as statements of their reaction to life or events, e.g. a cupid firing arrows at a unicorn signified chastity under attack by sexual desire. they carried them enamelled on jewels, had them painted in the background of their portraits, and sometimes had them expressed on furniture, plate, buildings, or food. the authority of the queen was the authority of the state. elizabeth's experience led her to believe that it was most important for a monarch to have justice, temperance, magnanimity, and judgment. she claimed that she never set one person before another, but upon just cause, and had never preferred anyone to office for the preferrer's sake, but only when she believed the person worthy and fit for the office. she never blamed those who did their best and never discharged anyone form office except for cause. further, she had never been partial or prejudiced nor had listened to any person contrary to law to pervert her verdicts. she never credited a tale that was first told to her and never corrupted her judgment with a censure before she had heard the cause. she did not think that the glory of the title of monarch made all she did lawful. to her, clemency was as eminent in supreme authority as justice and severity. secular education and especially the profession of law was now the route for an able but poor person to rise to power, rather than as formerly through military service or through the church. the first stage of education was primary education, which was devoted to learning to read and write in english. this was carried out at endowed schools or at home by one's mother or a tutor. the children of the gentry were usually taught in their homes by private teachers of small classes. many of the poor became literate enough to read the bible and to write letters. however, most agricultural workers and laborers remained illiterate. they signed with an "x", which represented the christian cross and signified its solemnity. children of the poor were expected to work from the age of or . the next stage of education was grammar [secondary] school or a private tutor. a student was taught rhetoric (e.g. poetry, history, precepts of rhetoric, and classical oratory), some logic, and latin and greek grammar. english grammar was learned through latin grammar and english style through translation from latin. as a result, they wrote english in a latin style. literary criticism was learned through rhetoric. there were disputations on philosophical questions such as how many angels could sit on a pin's point, and at some schools, orations. the students sat in groups around the hall for their lessons. the boys and some girls were also taught hawking, hunting and archery. there were no playgrounds. the grammar student and the undergraduate were tested for proficiency by written themes and oral disputations, both in latin. the middle classes from the squire to the petty tradesman were brought into contact with the works of the best greek and roman writers. the best schools and many others had the students read cicero, the "de officiis", the epistles and orations, and some of ovid, terence, sallust, virgil, some medieval latin works, the "distichs" of cato, and sometimes erasmus and sir thomas more. the students also had to repeat prayers, recite the lord's prayer and the ten commandments, and to memorize catechisms. because the students came from the various social classes such as gentlemen, parsons, yeomen, mercers, and masons, they learned to be on friendly and natural terms with other classes. a typical schoolday lasted from : am to : pm. there were so many grammar schools founded and financed by merchants and guilds such as the mercers and fishmongers that every incorporated town had at least one. grammar schools were headed by schoolmasters, who were licensed by the bishop and paid by the town. flogging with a birch rod was used for discipline. many grammar schools had preparatory classes called "petties" for boys and girls who could not read and write to learn to do so. the girls did not usually stay beyond the age of nine. this was done by a schoolmaster's assistant, a parish clerk, or some older boys. however, the grammar schools did not become the breeding grounds for humanist ideas because the sovereigns were faced with religious atomism and political unrest, so used the grammar schools to maintain public order and achieve political and religious conformity. some founders of grammar schools linked their schools with particular colleges in the universities following the example of winchester being associated with new college, oxford, and eton with king's college, cambridge. the new charter of westminster ( ) associated the school with christ church, oxford and trinity college, cambridge. the government of oxford university, which had been catholic, was taken from the resident teachers and put into the hands of the vice-chancellor, doctors, heads of colleges, and proctors. cambridge already had a strong reformed element from erasmus' influence. oxford university and cambridge university were incorporated to have a perpetual existence for the virtuous education of youth and maintenance of good literature. the chancellors, masters, and scholars had a common seal. oxford was authorized to and did acquire its own printing press. undergraduate students entered about age and resided in rooms in colleges rather than in scattered lodgings. the graduate fellows of the college who were m.a.s of under three years standing had the responsibility, instead of the university, for teaching the undergraduates. this led many to regard their fellowship as a position for life rather than until they completed their post-graduate studies. but they were still required to resign on marrying or taking up an ecclesiastical benefice. the undergraduates were poor scholars or fee-paying members of the college. some of the fee-paying members or gentlemen-commoners or fellow-commoners were the sons of the nobility and gentry and even shared the fellows' table. the undergraduate students were required to have a particular tutors, who were responsible for their moral behavior as well as their academic studies. it was through the tutors that modern studies fit for the education of a renaissance gentleman became the norm. those students not seeking a degree could devise his own course of study with his tutor's permission. less than about % stayed long enough to get a degree. many students who were working on the seven year program for a master's degree went out of residence at college after the four year's "bachelor" course. students had text books to read rather than simply listening to a teacher read books to them. in addition to the lecturing of the m.a.s and the endowed university lectureships, the university held exercises every monday, wednesday, and friday in which the student was meant through disputation, to apply the formal precepts in logic and rhetoric to the practical business of public speaking and debate. final examinations were still by disputation. the students came to learn to read latin easily. students acted in latin plays. if a student went to a tavern, he could be flogged. for too elaborate clothing, he could be fined. fines for absence from class were imposed. however, from this time until , a young man's university days were regarded as a period for the "sowing of wild oats". all students had to reside in a college or hall, subscribe to the articles of the university, the queen's supremacy, and the prayer book. meals were taken together in the college halls. the universities were divided into three tables: a fellows' table of earls, barons, gentlemen, and doctors; a second table of masters of arts, bachelors, and eminent citizens, and a third table of people of low condition. professors, doctors, masters of arts and students were all distinguishable by their gowns. undergraduate education was considered to be for the purpose of good living as well as good learning. it was to affect the body, mind, manners, sentiment, and business, instead of just leading to becoming a better disputant. the emphasis on manners came mostly from an italian influence. the university curriculum included latin and greek languages and was for four years. the student spent at least one year on logic (syllogizing, induction, deduction, fallacies, and the application of logic to other studies), at least one year on rhetoric, and at least one year on philosophy. the latter included physics, metaphysics, history, law, moral and political philosophy, modern languages, and ethics (domestic principles of government, military history, diplomatic history, and public principles of government), and mathematics (arithmetic, geometry, algebra, music, optics, astronomy). the astronomy taught was that of ptolemy, whose view was that the celestial bodies revolved around a spherical earth, on which he had laid out lines of longitude and latitude. there were lectures on greek and latin literature, including aristotle, plato, and cicero. there were no courses on english history in the universities. about , the curriculum was changed to two terms of grammar, four terms of rhetoric, five terms of dialectic (examining ideas and opinions logically, e.g. ascertaining truth by analyzing words in their context and equivocations), three terms of arithmetic, and two terms of music. there were now negative numbers, irrational numbers such as square roots, and imaginary numbers such as square roots of negative numbers. the circumference and area of a circle could be computed from its radius, and the pythagorean theorem related the three sides of a right triangle. also available were astrology, alchemy (making various substances such as acids and alcohols), cultivation of gardens, and breeding of stock, especially dogs and horses. astronomy, geometry, natural and moral philosophy, and metaphysics were necessary for a master's degree. the university libraries of theological manuscripts in latin were supplemented with many non-religious books. there were graduate studies in theology, medicine, music, and law, which was a merging of civil and canon law together with preparatory work for studying common law at the inns of court in london. in london, legal training was given at the four inns of court. students were called to dinner by a horn. only young gentry were admitted there. a year's residence there after university gave a gentleman's son enough law to decide disputes of tenants on family estates or to act as justice of the peace in his home county. a full legal education gave him the ability to handle all family legal matters, including property matters. many later became justices of the peace or members of parliament. students spent two years in the clerks' commons, and two in the masters' commons. besides reading textbooks in latin, the students observed at court and did work for practicing attorneys. after about four more years' apprenticeship, a student could be called to the outer barre. there was a real bar of iron or wood separating the justices from the attorneys and litigants. as "utter barrister" or attorney, he would swear to "do no falsehood in the court, increase no fees but be contented with the old fees accustomed, delay no man for lucre or malice, but use myself in the office of an attorney within the court according to my learning and discretion, so help me god, amen". students often also studied and attended lectures on astronomy, geography, history, mathematics, theology, music, navigation, foreign languages, and lectures on anatomy and medicine sponsored by the college of physicians. a tour of the continent became a part of every gentleman's education. after about eight years' experience, attorneys could become readers and benchers, the latter of whom made the rules. readers gave lectures. benchers, who were elected by other benchers, were entrusted with the government of their inn of court, and usually were king's counsel. five to ten years later, a few of these were picked by the queen for serjeant at law, and therefore eligible to plead at the bar of common pleas. justices were chosen from the serjeants at law. gresham left the royal exchange to the city and the mercer's company on condition that they use some of its profits to appoint and pay seven lecturers in law, rhetoric, divinity, music, physics, geometry, and astronomy to teach at his mansion, which was called gresham college. they were installed in according to his will. their lectures were free, open to all, and often in english. they embraced mathematics and new scientific ideas and emphasized their practical applications. a tradition of research and teaching was established in mathematics and astronomy. many people kept diaries. letter writing was frequent at court. all forms of english literature were now in print, except for plays. many ladies read aloud to each other in reading circles and to their households. some wrote poetry and did translations. correctness of spelling was beginning to be developed. printers tended to standardize it. there was much reading of romances, jest books, histories, plays, prayer collections, and encyclopedias, as well as the bible. in schools and gentry households, favorite reading was edmund spenser's "faerie queen" about moral virtues and the faults and errors which beset them, erasmus' new testament, "paraphrases", "colloquies", and "adages", sir thomas north's edition of plutarch's "lives of the noble grecians and romans", elyot's "the book named the governor", and hoby's translation of "the courtier". gentlemen read books on the ideals of gentlemanly conduct, such as "institucion of a gentleman" ( ), and laurence humphrey's "the nobles: or of nobilites". francis bacon's "essays or counsels civil and moral" were popular for their wisdom. in them he commented on many subjects from marriage to faction. he cautioned against unworthy authority, mass opinion, custom, and ostentation of apparent wisdom. he urged the use of words with their correct meaning. at a more popular level were caxton's "the golden legend", baldwin's "mirror for magistrates", foxe's "book of martyrs" about english protestant who suffered at the stake, sensational stories and pamphlets, printed sermons (including those of switzerland's calvin), chronicles, travel books, almanacs, herbals, and medical works. english fiction began and was read. there were some books for children. books were copyrighted, although non-gentlemen writers needed a patron. at the lowest level of literacy were ballads. next to sermons, the printing press was kept busiest with rhymed ballads about current events. printed broadsheets on political issues could be distributed quickly. in london, news was brought to the governor of the news staple, who classified it as authentic, apocryphal, barber's news, tailor's news, etc. and stamped it. books were also censored for matter against the state church. this was carried out through the stationers' company. this company was now, by charter, the official authority over the entire book trade, with almost sole rights of printing (e.g. excluding schools). it could burn other books and imprison their printers. there were language schools teaching french, italian, and spanish to the aspiring merchant and to gentlemen's sons and daughters. italian business techniques were set forth in textbooks for merchants, using italian terms of business: debit (debito), credit (credito), inventory (inventorio), journal (giornal), and cash (cassa). the arithmetic of accounting operations, including multiplication, was described in "an introduction for to lerne to reckonwith the penne or counters" in . accounting advice was extended to farmers as well as merchants in the "the pathway to perfectness in the accomptes of debitor and creditor" by james peele, a salter of london. it repeated the age-old maxim: ...receive before you write, and write before you pay, so shall no part of your accompt in any wise decay. the "marchants avizo" by johne browne, merchant of bristol, gave information on foreign currencies and keeping of accounts, and included specimens of various business documents such as insurance policies, and bills of exchange. it also advised: take heed of using a false balance or measure...covet not over familiarity amongst men it maketh thee spend much loss of time. be not hasty in giving credit to every man, but take heed to a man that is full of words, that hath red eyes, that goeth much to law, and that is suspected to live unchaste ... when thou promiseth anything be not stuck to perform it, for he that giveth quickly giveth double ... fear god...know thy prince...love thy parents ...give reverence to thy betters ...be courteous and lowly to all men... be not wise in thine own conceit. the old prohibitions of the now declining canon law were still observed. that is one should not seek wealth for its own sake or beyond what was requisite for a livelihood in one's station, exploit a customer's difficulties to extract an extravagant price, charge excessive interest, or engross to "corner the market". the printing press had made possible the methodizing of knowledge and its dissemination to a lay public. knowledge associated with the various professions, occupations, and trades was no longer secret or guarded as a mystery, to be passed on only to a chosen few. the sharing of knowledge was to benefit the community at large. reading became an out-of-school activity, for instruction as well as for pleasure. in , graphite was discovered in england, and gave rise to the pencil. surveying accuracy was improved with the new theodolite, which determined directions and measured angles and used a telescope that pivoted horizontally and vertically. scientists had the use of an air thermometer, in which a column of air in a glass tube sitting in a dish of water contracted or expanded with changes in the temperature, causing the water to move up or down the tube. william shakespeare, a glove-maker's son, wrote plays about historical events and plays which portrayed various human personalities and their interactions with each other. they were enjoyed by all classes of people. his histories were especially popular. the queen and various earls each employed players and actors, who went on tour as a troupe and performed on a round open-air stage, with people standing around to watch. in london, theaters such as the globe were built specifically for the performance of plays, which before had been performed at inns. the audience applauded and hissed. there were costumes, but no sets. ordinary admission was d. before being performed, a play had to be licensed by the master of the revels to make sure that there was nothing detrimental to the peace and public order. elizabeth issued a proclamation forbidding unlicensed interludes or plays, especially concerning religion or government policy on pain of imprisonment for at least fourteen days. the common people still went to morality plays, but also to plays in which historical personages were portrayed, such as richard ii, henry iv, and henry v. some plays were on contemporary issues. musicians played together as orchestras. music and singing was a popular pastime after supper; everyone was expected to participate. dancing was popular with all classes. gentlemen played cards, dice, chess, billiards, tennis, and fenced and had games on horseback. their deer-hunting diminished as forests were cut down for agriculture and the deer was viewed as an enemy eating crops. falconry diminished as hedges and enclosures displaced the broad expanses of land. country people enjoyed music, dancing, pantomime shows with masks of mythological or symbolic characters, riddles, wrestling, hurling, running, swimming, leap frog, blind man's buff, shovelboard played with the hands, and football between villages with the goal to get the ball into one's own village. football and shin-kicking matches often resulted in injuries. the bought ballads from traveling pedlars. early morning dew gathered in may and early june was thought to have special curative powers. there were many tales involving fairies, witches, devils, ghosts, evil spirits, angels, and monsters enjoyed by adults as well as children. many people still believed in charms, curses, divination, omens, fate, and advice from astrologers. the ghosts of the earth walked the earth, usually because of some foul play to be disclosed, wrong to be set right, to warn those dear to them of peril, or to watch over hidden treasure. fairies blessed homes, rewarded minor virtues, and punished mild wrongdoing. when fairies were unhappy, the weather was bad. there were parties for children. the merry guild-feast was no longer a feature of village life. there were fewer holydays and festivals. the most prosperous period of the laborer was closing. an agricultural laborer's yearly wage was about s., but his cost of living, which now included house rent, was about s. a year. in , daily wages in the summer for an agricultural laborer were about d. and for an artisan d. in in the county of rutland, daily wages for laborers were d. in summer and d. in winter; and for artisans were d. in summer and d. in winter. unemployment was widespread. there were endowed hospitals in london for the sick and infirm. there were others for orphans, for derelict children, and for the destitute. they worked at jobs in the hospital according to their abilities. there was also a house of correction for discipline of the idle and vicious by productive work. elizabeth continued the practice of touching people to cure scrofula, although she could not bring herself to fully believe in the reality of such cures, contrary to her chaplain and her physician. in the towns, shop shutters were let down to form a counter. behide this the goods were made and/or stored. the towns held a market once a week. fairs occurred once or twice a year. at given times in the towns, everyone was to throw buckets of water onto the street to cleanse it. during epidemics in towns, there was quarantine of those affected to stay in their houses unless going out on business. their houses were marked and they had to carry a white rod when outside. the quarantine of a person lasted for forty days. the straw in his house was burned and his clothes treated. people who died had to be buried under six feet of ground. there was an outbreak of plague in london roughly every ten years. there was a pity for the distressed that resulted in towns voting money for a people of a village that had burned down or been decimated by the plague. communities were taxed for the upkeep and relief of the prisoners in the gaols in their communities. queen elizabeth was puzzling over the proper relationship between the crown and the church when richard hooker, a humble scholar, theologian, and clergyman, attempted to find a justification in reason for the establishment of the church of england as an official part of the governing apparatus of the nation. his thinking was a turning point from the medieval notion that god ordered society, including the designation of its monarch and its natural laws. the belief in a divine structure with a great chain of being, beginning with god and working down through the hierarchy of angels and saints to men, beasts, and vegetables, did foster order in society. hooker restated the concept of aristotle that the purpose of society is to enable men to live well. he wrote that although the monarch was head of state and head of religion, the highest authority in civil affairs was parliament, and in religion, the convocation. the monarch had to maintain divine law, but could not make it. from this came the idea that the state derives its authority from the will of the people and the consent of the governed. protestant women had more freedom in marriage and were allowed to participate in more church activities compared to catholic women, but they were not generally allowed to become pastors. due to sensitivities on the part of both catholics and protestants about a female being the head of the church, elizabeth was given the title of "supreme governor" of the church instead of "supreme head". elizabeth was not doctrinaire in religious matters, but pragmatic. she always looked for ways to accommodate all views on what religious aspects to adopt or decline. images, relics, pilgrimmages, and rosaries were discouraged. but the catholic practice of kneeling at prayer, and bowing and doffing caps at the name of jesus were retained. also retained was the place of the altar or communion table at the east end of churches, special communion wafers instead of common bread, and elaborate clergy vestments. the communion prayer contained words expressing both the catholic view that the wafer and wine contained the real presence of the body and blood of christ, and the protestant view that they were commemorative only. communion was celebrated only at easter and other great festivals. church services included a sermon and were in accordance with a reformed prayer book and in english, as was the bible. care was even taken not to use words that would offend the scots, lutherans, calvinists, or huguenots. people could hold what religious beliefs they would, even atheism, as long as they maintained an outward conformity. attendance at state church services on sunday mornings and evenings and holydays was enforced by a fine of d. imposed by the church wardens. babies were to be baptized before they were one month old or the parents would be punished. still, the new religion had to be protected. members of the house of commons, lawyers, schoolmasters were to take the oath of supremacy or be imprisoned and make a forfeiture; a second refusal brought death. when numerous anabaptists came from the continent to live in the port towns, the queen issued a proclamation ordering them to leave the realm because their pernicious opinions could corrupt the church. the new church still accepted the theory of the devil causing storms, but opposed ringing the holy church bells to attempt to drive him away. the sins of people were also thought to cause storms, and also plagues. in , the church of england wrote down its christian protestant beliefs in thirty-nine articles of religion, which specifically excluded certain catholic beliefs. they were incorporated into statute in establishing them as the tenets of the official religion of england. the first eighteen endorsed the ideas of one god, christ as the son of god who was sacrificed for all the sins of men, the resurrection of christ from the dead and ascension into heaven, the holy ghost proceeding from the father and the son, the books of the bible, the original sin of adam and his offspring, justification of man by faith in christ rather than by good works, goods works as the inspired fruit and proof of faith in christ, christ in the flesh as like man except for the absence of sin, the chance for sinners who have been baptised to be forgiven if they truly repent and amend their lives, the predestination of some to be brought by christ to eternal salvation and their minds to be drawn up to high and heavenly things, and salvation only by the name of christ and not by a sect. other tenets described the proper functions of the church, distinguishing them from roman catholic practice. specifically, the church was not to expound one place of scripture so that it was inconsistent with another place of scripture. because man can err, the church was not to ordain or enforce anything to be believed for necessity of salvation. explicitly renounced were the romish doctrine concerning purgatory, pardons, worshipping, adoration of images or reliques, invocation of saints, and the use in church of any language, such as latin, not understood by the people. only the sacraments of baptism and the lord's supper were recognized. the lord's supper was to be a sign of the love that christians ought to have among themselves and a sacrament of redemption by christ's death. the wine in the cup of blessing as well as the bread of the lord's supper was to be taken by lay- people and to be a partaking of christ; there was no romish mass. excommunication was limited to those who openly denounced the church. anyone openly breaking the traditions or ceremonies of the church which were approved by common authority were to be rebuked. elizabeth told the bishops that she wished certain homilies to be read in church, which encouraged good works such as fasting, prayer, alms-giving, christian behavior, repentance, and against idolatry, gluttony, drunkenness, excess of apparel, idleness, and rebellion. these she considered more instructive and learned that ministers' sermons, which were often influenced by various gentlemen and were inconsistent with each other. consecration of bishops and ministers was regulated; and they were allowed to marry. the standard prayer was: "our father who art in heaven, hallowed be thy name. thy kingdom come. thy will be done, on earth as it is in heaven. give us this day our daily bread, and forgive us our offenses as we forgive those who have offended against us. and lead us not into temptation, but deliver us from evil. for thine is the kingdom, the power, and the glory forever and ever, amen." there was difficulty persuading educated and moral men to be church ministers, even though elizabeth expressed to the bishops her preference for ministers who were honest and wise instead of learned in religious matters. the bible was read at home and familiar to everyone. this led to the growth of the puritan movement. the puritans believed in the right of the individual christian to interpret the scriptures for himself by spiritual illumination. they opposed the mystical interpretation of the communion service. the puritans complained that the church exerted insufficient control over the morals of the congregation. their ideas of morality were very strict and even plays were thought to be immoral. the independent puritans were those protestants who had fled from mary's catholic reign to the continent, where they were persuaded to the ideas of john calvin of geneva. he stressed the old idea of predestination in the salvation of souls, which had in the past been accepted by nearly all english christian leaders, thinkers, and teachers, but not stressed. the act of conversion was a common experience among the early puritans. the concomitant hatred of past sins and love of god which was felt in thankfulness for mercy were proof of selection for salvation. the good works that followed were merely an obligation showing that one's faith was real, but not a way to salvation. but the puritans also accepted calvin's idea of independent church government. they therefore thought that ministers and lay elders of each parish should regulate religious affairs and that the bishops, who were "petty popes", should be reduced to an equality with the rest of the clergy, since they did not rule by divine right. the office of archbishop should be eliminated and the head of state should not necessarily be governor of the church. these ideas were widely disseminated in books and pamphletts. the puritans disrupted the established church's sunday services, tearing the surplice off the minister's back and the wafers and wine from the altar rail. the puritans arranged "lectures" on sunday afternoons and on weekdays. these were given gratuitously or funded by boroughs. they were strict about not working on the sabbath, which day they gave to spiritual exercises, meditations, and works of mercy. the only work allowed was preparing meals for themselves, caring for their animals, and milking the cows. they enforced a strict moral discipline on themselves. the puritan movement included william brewster, an assistant to a court official who was disciplined for delivering, upon pressure from the council, the queen's signed execution order for mary of scotland after the queen had told him to hold it until she directed otherwise. the puritans formed a party in the house of commons. the debased coinage was replaced by a recoinage of newly minted coins with a true silver weight. goldsmiths, who also worked silver, often acted as guardians of clients' wealth. they began to borrow at interest at one rate in order to lend out to traders at a higher rate. this began banking. patents were begun to encourage the new merchant lords to develop local manufactures or to expand import and export trade. patents were for a new manufacture or an improved older one and determined the wages of its trades. there was chartering of merchant companies and granting of exclusive rights to new industries as monopolies. some monopolies or licenses were patents or copyrights of inventors. others established trading companies for trade to certain foreign lands and supporting consular services. people holding monopolies were accountable to the government. there were monopolies on certain smoked fish, fish oil, seal oil, oil of blubber, vinegar, salt, currants, aniseed, juniper berry liquor, bottles, glasses, brushes, pots, bags, cloth, starch, steel, tin, iron, cards, horn, ox shinbones, ashes, shreds of gloves, earth coal, calamite stone, powder, saltpeter, lead manufacturing by- products, and transportation of leather. for far-flung enterprises and those where special arrangements with foreign countries was required, there was sharing of stock of companies, usually by merchants of the same type of goods. in joint-stock companies each member took a certain number of shares and all the selling of the goods of each merchant was carried on by the officials of the company. the device of joint stock might take the form of a fully incorporated body or of a less formal and unincorporated syndicate. the greatest joint-stock company was east india company, chartered in to trade there in competition with the dutch east india company. it was given a fifteen year monopoly on trade east of the southern tip of africa. unlike the muscovy company, and merchants of the staple, individual members could not trade on their own account, but only through the corporate body on its voyages. it was regulated as to each particular voyage and helped with problems by the crown and privy council, for instance when further subscriptions were needed, or when carpenters were needed to be pressed into service for fitting out ships, or to deal with an unsuccessful captain. its charter retained many of the aspects of the medieval trade guild: power to purchase lands, to sue and be sued, to make by- laws, and to punish offenders against them by fine or imprisonment. admission was by purchase of a share in a voyage, redemption, presentation, patrimony (sons of members who were twenty-one), and apprenticeship. purchase of a share in a voyage was the most common method. a share for the first ship cost pounds. when share purchase did not suffice, redemption for such cash payments as could be obtained was resorted to. occasionally presentation or a faculty "for the making of a freeman" was granted to some nobleman or powerful member. members' liability was limited to their individual subscriptions. each voyage had ) a royal commission authorizing the company to undertake the expedition and vesting in its commanders powers for punishing offences during the voyage, and quenching any mutiny, quarrels, or dissension that might arise; ) a code of instructions from the company to the admiral and to commanders of ships setting forth in great detail the scope and objects of the voyage together with minute regulations for its conduct and trade; ) authorization for coinage of money or export of specie (gold or silver); and ) letters missive from the sovereign to foreign rulers at whose ports the ships were to trade. the first voyage brought back spices that were sold at auction in london for ten times their price in the indies and brought to shareholders a profit equivalent to / % yearly for the ten years when the going interest rate was % a year. town government was often controlled by a few merchant wholesalers. the entire trade of a town might be controlled by its drapers or by a company of the merchant adventurers of london. the charter of the latter as of allowed a common seal, perpetual existence, liberty to purchase lands, and liberty to exercise their government in any part of the nation. it was controlled by a group of rich londoners, no more than , who owned the bulk of the cloth exported. there were policies of insurance given by groups of people for losses of ships and their goods. marine insurance was regulated. new companies were incorporated for many trades. they were associations of employers rather than the old guilds which were associations of actual workers. the ostensible reason was the supervision of the quality of the wares produced in that trade. (shoemakers, haberdashers, saddlers, and curriers exercised close supervision over these wares.) they paid heavily for their patents or charters. there was no sharp line between craftsman and shopkeeper or between shopkeeper and wholesale merchant. in london, an enterprising citizen could pass freely from one occupation to another. borrowing money for a new enterprise was common. industrial suburbs grew up around london and some towns became known as specialists in certain industries. the building crafts in the towns often joined together into one company, e.g. wrights, carpenters, slaters, and sawyers, or joiners, turners, carvers, bricklayers, tilers, wallers, plasterers, and paviors. these companies included small contractors, independent masters, and journeymen. the master craftsman often was a tradesman as well, who supplied timber, bricks, or lime for the building being constructed. the company of painters was chartered with a provision prohibiting painting by persons not apprenticed for seven years. the prosperous merchants began to form a capitalistic class as capitalism grew. competition for renting farm land, previously unknown, caused these rents to rise. the price of wheat rose to an average of s. per quarter, thereby encouraging tillage once more. there was steady inflation. with enclosure of agricultural land there could be more innovation and more efficiency, e.g. the time for sowing could be chosen. it was easier to prevent over-grazing and half-starved animals as a result. the complications of the open system with its endless quarrels and lawsuits were avoided. now noblemen talked about manure and drainage, rotation of crops, clover, and turnips instead of hunting, horses, and dogs. the breed of horses and cattle was improved. there were specializations such as the hunting horse and the coach horse. by royal proclamation of , there were requirements for the keeping of certain horses. for instance, everyone with lands of at least , pounds had to keep six horses or geldings able for demilances [rider bearing a light lance] and ten horses or geldings for light horsemen [rode to battle, but fought on foot]. one with under pounds but over marks yearly had to keep one gelding for a light horseman. dogs had been bred into various types of hounds for hunting, water and land spaniels for falconry, and other dogs as house dogs or toy dogs. there were no longer any wild boar or wild cattle. the turkey joined the cocks, hens, geese, ducks, pigeons, and peacocks in the farmyard. manure and dressings were used to fertilize the soil. hay became a major crop because it could be grown on grazing lands and required little care. there are new and bigger industries such as glassware, iron, brasswares, alum and coppers, gunpowder, paper, coal, and sugar. the coal trade was given a monopoly. coal was used for fuel as well as wood, which was becoming scarce. iron smelters increasingly used coal instead of charcoal, which was limited. iron was used for fire-backs, pots, and boilers. good quality steel was first produced in with the help of german craftsmen, and a slitting mill was opened in . small metal goods, especially cutlery, was made, as well as nails, bolts, hinges, locks, ploughing and harrowing equipment, rakes, pitch forks, shovels, spades, and sickles. lead was used for windows and roofs. copper and brass were used to make pots and pans. pewter was used for plates, drinking vessels, and candlesticks. competition was the mainspring of trade and therefore of town life. the mode of travel of the gentry was riding horses, but most people traveled by walking. people carried passes for travel that certified they were of good conduct and not a vagrant or sturdy rogue. bands of roving vagabonds terrorized the countryside. after a land survey completed in there arose travel books with maps, itineraries, and mileage between towns in england and wales. also, the queen sent her official mail by four royal postal routes along high roads from london to various corners of the nation. horses are posted along the way for the mail-deliverer's use. however, private mail still goes by packman or common carrier. the nation's inland trade developed a lot. there were many more wayfaring traders operating from town inns. in , the first canal was built with locks at exeter. more locks and canals facilitated river travel. at london bridge, water-wheels and pumps are installed. new sea navigation techniques improved voyages. seamen learned to fix their positions, using an astrolabe or quadrant to take the altitude of the sun and stars and to reckon by the north star. they used a nocturnal, read by touch, to help keep time at night by taking the altitude of the stars. they calculated tides. to measure distances, they invented the traverse board, which was bored with holes upon lines, showing the points of the compass; by means of pegs, the steersman kept an account of the course steered. a log tied to a rope with knots at equal intervals was used to measure speed. there were compasses with a bearing dial on a circular plate with degrees up to noted thereon. seamen had access to compilations of arab mathematicians and astronomers and to navigational manuals and technical works on the science of navigation and the instruments necessary for precision sailing. for merchants there were maps, books about maps, cosmographical surveys, and books on the newly-discovered lands. in john mercator produced a map taking into account the converging of the meridians towards the pole. on this chart, a straight line course would correspond to a mariner's actual course through the water on the earth's sphere, instead of having the inaccuracies of a straight line on a map which suggested that the world was flat. it was in use by . christmas was an especially festive time of good fellowship. people greeted each other with "good cheer", "god be with you", or "against the new year". carols were often sung and musicians played many tunes. there was dancing and gambling. there were big dinners with many kinds of meat and drink. a hearty fire heated all the house. many alms were given to beggars. parliament enacted laws and voted taxes. the queen, house of lords, and house of commons cooperated together. there was relatively little dissension or debating. bills were read, voted on, discussed, and passed with the lords, peers, bishops, and justices sitting in their places according to their degree. the justices sat on the wool sacks. a bar separated this area from the rest of the room, where the members of the commons stood. there were many bills concerning personal, local, or sectional interests, but priority consideration was given to public measures. the house of lords still had members. the queen appointed and paid the speaker, clerk, and sergeant at arms of the commons. the knights in the commons were almost invariably from the county's leading families and chosen by consensus of knights with free land of at least s. in the county court. in the towns, the electors might be the town corporation, holders of certain properties, all the freemen, all the ratepayers, or all the male inhabitants. disputed elections were not usually concerned with political issues, but were rivalries for power. the commons gradually won for its members freedom from arrest without its permission and the right of punishing and expelling members for crimes committed. tax on land remained at % of its estimated yearly income. the queen deferred to the church convocation to define christian faith and religion, thus separating church and state functions. the treasury sought to keep a balanced budget by selling royal land and keeping crown expenditures down. the crown carried a slight debt incurred before the queen's accession. theft and robbery were so usual that there were names for various techniques used. a ruffler went with a weapon to seek service, saying that he was a servitor in the wars, but his chief "trade" was to rob poor wayfaring men and market women. a prigman went with a stick in his hand like an idle person, but stole clothes off hedges. a whipjack begged like a mariner, but with a counterfeit license (called a "gibe"); he mostly robbed booths in fairs or pilfered ware from stalls, which was called "heaving of the booth". a frater had a counterfeit license to beg for some hospital, but preyed upon poor women coming and going to market. a quire bird was a person recently let out of prison, and was commonly a horse stealer. an upright man carried a truncheon of a staff and called others to account to him and give him a share or "snap" of all that they had gained in one month, and he often beat them. he took the chief place at any market walk and other assemblies. workers at inns often teamed up with robbers, telling them of wares or money travelers were carrying so the robber could profitably rob them after they left the inn. violence was still a part of the texture of everyday life. private armories and armed gangs were not uncommon. agricultural laborers kept sword and bow in a corner of their fields in the first part of elizabeth's reign. non-political brutal crime and homicides were commonplace. there were frequent local riots and disturbances, in the country and in the towns. occasionally there were large-scale rebellions. but the rebellion of the earl of essex in had no aftermath in violence. in , the queen issued a proclamation enforcing curfew for london apprentices, who had been misruly. the queen issued proclamations to certain counties to place vagrant soldiers or vagrants under martial law because of numerous robberies. she ordered the deportation of vagrant irishmen in . after exhausting every other alternative, the queen reluctantly agreed with her privy council on the execution in of mary, queen of scots, who had been involved in a plot to assassinate her and claim the throne of england. her council had persuaded her that it was impossible for her to live in safety otherwise. francis drake sailed around the world from to . walter ralegh made an expedition to north america in with the queen's authority to "discover barbarous countries, not actually possessed of any christian prince and inhabited by christian people, to occupy and enjoy". he found and named the land of virginia in honor of the queen, who was a virgin, and started a colony on roanoke island there. drake and ralegh plundered spanish ships for cargo such as american gold and silver, much of which was used to pay for the war with spain and much going to investors. there experience fighting spanish ships led to improvements in ship design; building ships was no longer merely by copying another ship or a small model. in , the spanish armada came to invade england, and was for the most part destroyed. in that battle, drake and other experienced sea- fighters led two hundred english ships, of which about were built to sink other ships rather than to board and capture them. these new english ships were longer and narrower and did away with the towering superstructures at bow and stern. this made them more maneuverable and easier to sail. also, the english guns were lighter, more numerous, and outranged the spanish guns. so the smaller english ships were able to get close enough to fire broadside after broadside against the big spanish troop-transport galleons, without being fired upon. the direction of the wind forced the spanish galleons northward, where most of them were destroyed by storms. the english seamen had been arbitrarily pressed into this service. a royal proclamation of offered a reward of pounds for information on libels against the queen. there had been mounting demonstrations against her monopolies, which mostly affected household items. there had been abuses of monopolies, such as the steel monopoly had been sold for pounds s., but steel was then sold at d. per pound instead of the former / d. per pound. further the steel was mixed and of a lesser quality. this so damaged the knife and sword industry that about workers lost their jobs from it and became beggars. monopoly was a severe burden to the middle and poorer classes. also, the power of patent holders to arrest and imprison persons charged with infringing upon their rights was extended to any disliked person. when the house of commons protested against monopolies in , elizabeth reduced them. she addressed her council and the commons saying that "mr. speaker, you give me thanks, but i doubt me that i have more cause to thank you all than you me; and i charge you to thank them of the lower house from me. for had i not received a knowledge from you, i might have fallen into the lapse of an error only for lack of true information. since i was queen yet did i never put my pen to any grant but that upon pretext and semblance made unto me, it was both good and beneficial to the subject in general, though a private profit to some of my ancient servants who had deserved well. but the contrary being found by experience, i am exceedingly beholding to such subjects as would move the same at the first. and i am not so simple to suppose but that there be some of the lower house whom these grievances never touched; and for them i think they speak out of zeal to their countries and not out of spleen or malevolent affection, as being parties grieved. and i take it exceedingly gratefully from them, because it gives us to know that no respects or interests had moved them other than the minds they bear to suffer no diminution of our honor and our subjects' love unto us, the zeal of which affection tending to ease my people and knit their hearts unto me, i embrace with a princely care. for above all earthly treasures i esteem my people's love, more than which i desire not to merit. that my grants should be grievous unto my people and oppressions to be privileged under color of our patents, our kingly dignity shall not suffer it. yea, when i heard it i could give no rest unto my thoughts until i had reformed it. shall they (think you) escape unpunished that have thus oppressed you, and i have been respectless of their duty and regardless of our honor? no, no, mr. speaker, i assure you, were it not more for conscience' sake than for any glory or increase of love that i desire, these errors, troubles, vexations, and oppressions done by these varlets and low persons (not worthy the name of subjects) should not escape without condign punishment. but i perceive they dealt with me like physicians who, ministering a drug, make it more acceptable by giving it a good aromatical savor; or when they give pills, do gild them all over. i have ever used to set the last judgment day before my eyes and so to rule as i shall be judged, to answer before a higher judge. to whose judgment seat i do appeal that never thought was cherished in my heart that tended not unto my people's good. and now if my kingly bounties have been abused and my grants turned to the hurts of my people, contrary to my will and meaning, or if any in authority under me have neglected or perverted what i have commited to them, i hope good will not lay their culps [sins] and offenses to my charge. who, though there were danger in repealing our grants, yet what danger would i not rather incur for your good than i would suffer them still to continue? i know the title of a king is a glorious title, but assure yourself that the shining glory of princely authority hath not so dazzled the eyes of our understanding but that we well know and remember that we also are to yield an account of our actions before the great judge. to be a king and wear a crown is a thing more glorious to them that see it than it is pleasant to them that bear it. for myself, i was never so much enticed with the glorious name of a king or royal authority of a queen as delighted that god hath made me his instrument to maintain his truth and glory, and to defend this kingdom from peril, dishonor, tyranny, and oppression. there will never queen sit in my seat with more zeal to my country, care to my subjects, and that will sooner with willingness venture her life for your good and safety, than myself. for it is not my desire to live or reign longer than my life and reign shall be for your good. and though you have had and may have many princes more mighty and wise sitting in this seat, yet you never had or shall have any that will be more careful and loving." about , richard hakluyt, a bristol clergyman, wrote "a particular discourse concerning western discoveries". this was to become the classic statement of the case for english colonization. it held out hope that the english would find needed timber for masts, pitch, tar, and ashes for soap. in rome in , giordano bruno, an italian monk and priest, was burned alive at the stake by a court of the inquisition for not recanting, although tortured, his heretical and blasphemous philosophy. he had opined that christianity was irrational and had no scientific basis, that christ was only a skillful magician, that the bible could not be taken literally, that god and nature were not separate as taught by genesis, that the catholic church encouraged ignorance from the instinct of self-preservation, and that the earth and planets revolved around the sun, as did other planets around other suns. the jesuits, a new catholic order brimming with zeal, sent missionaries to england to secretly convert people to catholicism. the practice of catholicism had gone underground in england, and some catholic house-holders maintained catholic priests in hidden places in their homes. - the law - although estate tails (estates descendible only to the heirs of the body of the original feofee) by law could not be sold or given away, this was circumvented by use of a straw man. in collaboration with the possessor of the property, this straw man sued the possessor asserting that the property had been wrongfully taken from the straw man. the possessor pleaded that the crier of the court who had warranted it should be called to defend the action. he failed to appear until after judgment had been given to the straw man. then the straw man conveyed it to the possessor or his nominee in fee simple. no one shall make false linen by stretching it and adding little pieces of wood, which is so weak that it comes apart after five washings. timber shall not be felled to make logs for fires for the making of iron. no one may take small fish to feed to dogs and pigs. only nets with mesh leaving three inches spaces may be used to catch fish. no attainder shall result in the forfeiture of dower by the offender's wife nor disinheritance of his heirs. the following statute of artificers regulated labor for the next two centuries: no master or mistress may employ a servant for a term less than one year in the crafts of clothiers, woolen cloth weavers, tuckers, fullers, clothworkers, shearmen, dyers, hosiers, tailors, shoemakers, tanners pewterers, bakers, brewers, glove- makers, cutlers, smith, farriers, curriers, saddlers, spurriers, turners, cappers, hatmakers, feltmakers, bow-makers, arrow-makers, arrow-head-makers, butchers, cooks, or millers, so that agriculture will be advanced and idleness diminished. also, every craftsman unmarried or under age who is not working must accept employment by any person needing the craft work. also, any common person between and who is not working must accept employment in agriculture. and, unmarried women between and may be required by town officials to work by the year, the week, or day for wages they determine. all artificers and laborers hired by the day or week shall work from am to pm. all artificers must labor at agriculture at haytime and harvest to avoid the loss of grain or hay. every householder who raises crops may receive as an apprentice a child between and to serve in agriculture until he is age . a householder in a town may receive a child as an apprentice for years, but merchants may only take as apprentices children of parents with s. freehold. (this was designed to inhibit migration to the towns. it excluded three fourths of the rural population.) no one may be a craftsman until he has served seven years as an apprentice. these artificers may have children as apprentices: smith, wheelmaker, ploughmaker, millmaker, miller, carpenter, rough mason, plasterer, a timber sawer, an ore burner, a lime burner, brickmaker, bricklayer, tilemaker, tiler, layer of slate roofs, layer of wood shingle roofs, layer of straw roofs, cooper, earthen potter, linen weaver, housewife who weaves wool for sale or for household use. fish, but no meat, may be eaten on wednesdays so that there will be more fishermen and mariners and repair of ports. (this was done because fishing had declined since the dissolution of the monasteries. eating fish instead of meat in lent in the springtime remained a tradition.) for repairing of highways, the supervisors may take the rubbish or smallest stones of any quarry along the road in their precinct. embezzlement or theft by a servant of his master's goods of s. or more is a felony. no one shall forge a deed of land, charter, sealed writing, court roll or will. no one shall libel or slander so as to cause a rebellion. cut-purses and pick-purses shall not have benefit of clergy. a debtor may not engage in a fraudulent collusion to sell his land and goods in order to avoid his creditors. a person robbing a house of s. by day when no one is there shall not have benefit of clergy, because too many poor persons who cannot hire a servant to look after their house when they go to work have been robbed. when the hue and cry is raised for a robbery in a hundred, and other hundreds have been negligent, faulty, or defective in pursuit of the robber, then they must pay half the damages to the person robbed, while the hundred in which the robbery occurred pays the other half. robbers shall be pursued by horse and by foot. the price of barrels shall be set by mayors of the towns where they are sold. no man under the degree of knight may wear a hat or cap of velvet. caps may not be made of felt, but only knit wool. only hats may be made of felt. this is to assist the craft of making wool caps. every person over years of age shall wear on sundays a wool knitted cap made by the cappers, except for maidens, ladies, gentlewomen, noble persons, and every lord, knight, and gentlemen with , s. of land, since the practice of not wearing caps has damaged the capping industry. this employed cappers and poor people they had employed and the decrepit and lame as carders, spinners, knitters, parters, forsers, thickers, dressers, dyers, battelers, shearers, pressers, edgers, liners, and bandmakers. rugs shall weigh pounds at least and be yards at least in length and at most / yard wide. the incorporated company of ship masters may erect beacons and marks on the seashores and hills above, because certain steeples and other marks used for navigation have fallen down and ships therefore have been lost in the sea. there shall be one sheriff per county, because now there are enough able men to supply one per county. trials of noblemen for treason shall be by their peers. a native or denizen merchant in wholesale or retail goods who leaves the nation to defraud his creditors shall be declared a bankrupt. the chancellor may conduct an investigation to ascertain his land, house, and goods, no matter who may hold them. they shall be appraised and sold to satisfy his debts. loan contracts for money lent may not be for more than s. for each s. yearly. all loans of money or forbearing of money in sales of goods for less than this shall be punishable by forfeit of the interest only. no cattle may be put in any enclosed woods that have been growing less than five years. at the end of five years growth, calves may be put in. at the end of six years growth, cattle may be put in. the mother and reputed father of any bastard who has been left to be kept at the parish where born must pay weekly for the upkeep and relief of such child, so that the true aged and disabled of the parish get their relief and to punish the lewd life. no master at a university may lease any land unless / of it is retained for raising crops to supply the colleges and halls for food for their scholars. persons with s. in goods or s. in lands shall find two able men in their parish community to repair the highways yearly. landowners of oxford shall be taxed for the repair of the highway and bridge there. woods around london shall not be felled to be converted to coals for iron-works because london needs the wood to make buildings and for fireplaces. every melter and maker of wax from honeycombs shall put his mark on every piece of his wax to be sold. wrought wax such as in lights, staff-torches, red wax or sealing wax, book candles, or searing candles shall bear its maker's mark. all barrels of honey shall bear the mark of the honeymaker. wool cloth, cotton cloth, flannel cloth, hose-yarn, hats, and caps shall be dyed black only with dye from the woad plant and not with any false black dye. no one shall take or kill any pheasants with nets or devices at nighttime because such have become scarce. lands, tenements, goods and chattels of accountants teller, or receiver who are in debt may be obtained by court order to satisfy the debt by garnishing the heir of the debtor after the heir has reached and for the years next ensuing. fraudulent and secret conveyances made to retain the use of one's land when one sells the land to a bona fide purchaser for value in fee simple, fee tail, for life, for lives, or for years are void. no new iron mills or furnaces for making or working of any iron or iron metal shall be established in the country around london and the owners of carriages of coals, mines and iron which have impaired or destroyed the highways shall also carry coal ashes, gravel, or stone to repair these highways or else make a payment of s. d. for each cart load not carried. no one shall bribe an elector to vote for a certain person for fellow, scholar, or officer of a college, school, or hall or hospital so that the fittest persons will be elected, though lacking in money or friends, and learning will therefore be advanced. cottage and dwelling houses for workmen or laborers in mineral works, coal mines, or quarries of stone or slate for the making of brick, tile, lime, or coals shall be built only within a mile from such works. dwelling houses beyond this must be supported by four acres of land to be continually occupied and manured as long as the dwelling house is inhabited or forfeit s. per month to the queen. cottages and dwelling houses for sailors or laborers working on ships for the sea shall be built only within a mile of the sea. a cottage may be built in a forest or park for a game keeper of the deer. a cottage may be built for a herd-man or shepherd for the keeping of cattle or sheep of the town. a cottage may be built for a poor, lame, sick, aged, or disabled person on waste or common land. more families than one may not be placed in one cottage or dwelling house. a vagabond or mighty strong beggar [able to work] shall be whipped. any person with land in fee-simple may establish a hospital, abiding place, or house of correction to have continuance forever as a corporation for the sustenance and relief of the maimed, poor, or disabled people as to set the poor to work. the net income shall not exceed , s. yearly. troops of vagabonds with weapons in the highways who pretend to be soldiers or mariners have committed robberies and murders. so all vagabonds shall settle down in some service or labor or trade. pontage [toll for upkeep and repair of bridges] shall be taken at certain bridges: carts d., horse and pack d., a flock of sheep d. crown officials such as treasurers, receivers, accountants, and revenue collectors shall not embezzle crown funds and shall be personally liable for arrears. persons forcibly taking others across county lines to hold them for ransom and those taking or giving blackmail money and those who burn barns or stacks of grain shall be declared felons and shall suffer death, without any benefit of clergy or sanctuary. no bishop may lease land for more than twenty-one years or three lives. no bishop may alienate any possession of their sees to the crown. such are void. stewards of leet and baron courts may no longer receive, in their own names, profits of the court over d. since they have vexed subjects with grievous fines and amercements so that profits of justice have grown much. incorrigible and dangerous rogues shall be branded with an "r" mark on the left shoulder and be put to labor, because banishment did not work as they came back undetected. if one is caught again begging, he shall be deemed a felon. any innkeeper, victualler, or alehouse keeper who allows drinking by persons other than those invited by a traveler who accompanies him during his necessary abode there and other than laborers and handicraftsmen in towns upon the usual working days for one hour at dinner time to take their diet in an alehouse and other than laborers and workmen following their work to any given town to sojourn, lodge, or victual in any inn, alehouse or victualling house shall forfeit s. for each offense. this is because the use of inns, alehouses, and victualling houses was intended for relief and lodgings of travelling people and people not able to provide their own victuals, but not for entertainment and harboring of lewd and idle people who become drunk. if a person marries a second time while the first spouse is still living, it shall be a felony and thus punishable by death. watermen transporting people on the thames river shall have served as apprentice to a waterman for five years or have been the son of a waterman. this is to prevent the loss of lives and goods by inexperienced watermen. no one may make any hat unless he has served as apprentice for at least seven years. this is to prevent false and deceitful hat- making by unskillful persons. spices and potions, including pepper, cloves, mace, nutmeg, cinnamon, ginger, almonds, and dates, which have usually been garbled shall be garbled, cleaned, sorted, and sealed by the garbler before sale. this is to prevent mingled, corrupt, and unclean spices and potions from being sold. plasterers shall cease painting because it has intruded upon the livelihoods of painters who have been apprenticed as such. pawn brokers accepting stolen goods shall forfeit twice their value to the owner from whom stolen. no butcher may cut any hide or any ox, bull, steer, or cow so that it is impaired or may kill any calf under five weeks old. no butcher may be a tanner. no one may be a tanner unless apprenticed as such for seven years or the son or wife of a tanner who has tanned for four years or a son or daughter of a tanner who inherits his tanhouse. tanners may not be shoemakers, curriers, butchers, or leatherworkers. only tanners may buy raw hides. only leatherworkers may buy leather. only sufficiently strong and substantial leather may be used for sole-leather. curriers may not be tanners. curriers may not refuse to curry leather. london searchers shall inspect leather, seal and mark that which is sufficient, and seize any that is insufficiently tanned, curried, wrought, or used. fishermen and their guides may continue to use the coastland for their fishing activities despite the trespass to landowners. since sails for ships in recent years have been made in the realm instead of imported, none shall make such cloth unless he has been apprenticed in such or brought up in the trade for seven years. this is to stop the badness of such cloth. any person killing any pheasant, partridge, dove, pigeon, duck or the like with any gun, crossbow, stonebow, or longbow, or with dogs and nets or snares, or taking the eggs of such from their nests, or tracing or taking hares in the snow shall be imprisoned for three months unless he pays s. per head or, after one month's imprisonment, have two sureties bound for s. this is because the past penalty of payment hasn't deterred offenders, who frequently cannot pay. persons affected by the plague may not leave their houses or be deemed felons and suffer death. this is to avoid further infection. the towns may tax their inhabitants for the relief of infected persons. tonnage [tax per ton] and poundage [tax per pound] on goods exported and imported shall be taken to provide safeguard of the seas for such goods. all persons must go to the established church on sundays and holy days. the penalty was at first forfeiture d. along with church punishment, and later, pounds per month and being bound by two sureties for pounds for good behavior, and if the pounds is not paid, then forfeiture of all goods to be applied to the amount due and two-thirds of one's land. these laws were directed against catholicism, but were laxly enforced as long as worship was not open and no one wore priestly clothes: the writing, preaching, or maintaining of any foreign spiritual jurisdiction shall be punished by forfeiture of goods or, if the goods are not worth pounds, one year imprisonment, for the first offence; forfeiture of goods and lands and the king's protection, for the second offence; and the penalty for high treason for the third offence. any person leading others to the romish [catholic] religion is guilty of high treason. the penalty for saying mass is [ , s.] marks and one year's imprisonment. the penalty for hearing mass is [ , s.] marks and one year's imprisonment. if one is suspected of being a jesuit or priest giving mass, one must answer questions on examination or be imprisoned. papists [those who in conscience refused to take the oath of supremacy of the crown over the church] must stay in their place of abode and not go five miles from it, unless licensed to do so for business, or forfeit one's goods and profits of land for life. if a copyholder, land is forfeited to one's lord. but if the goods are not worth s. or the land is not worth at least s., the realm must be abjured. otherwise, the papist is declared a felon without benefit of clergy. if a child is sent to a foreign land for catholic education, he cannot inherit lands or goods or money, unless he conforms to the established church on his return. there is also a pound penalty for the persons who sent him. devising or speaking seditious rumors are penalized by the pillory and loss of both ears for the first offense; and pounds and six months imprisonment for the second offence. slandering the queen is penalized by the pillory and loss of one ear, or by [ , s.] marks and three months imprisonment, at the choice of the offender. the second offence is a felony. printing, writing, or publishing seditious books is a felony without benefit of clergy. wishing the queen dead, prophesying when she would die, or who would succeed her to the crown is a felony without benefit of clergy. attainders for these felonies shall not work corruption of the blood [heirs may inherit the property of the felon]. because the publication of many books and pamphlets against the government, especially the church, had led to discontents with the established church and to the spreading of sects and schisms, the star chamber in held that the printing trade was to be confined to london, except for one press at oxford and one at cambridge. no book or pamphlet could be printed unless the text was first seen, examined, and allowed by the archbishop of canterbury or the bishop of london. book publishers in violation were to be imprisoned for six months and banned from printing; their equipment was to be destroyed. wardens were authorized to search wherever "they shall have reasonable cause of suspicion", and to seize all such books and pamphlets printed. but printers continued to print unlicensed material. - judicial procedure - jurors shall be selected from those people who have at least s. annual income instead of s. because sheriffs have been taking bribes by the most able and sufficient freeholders to be spared at home and the poorer and simpler people, who are least able to discern the causes in question, and most unable to bear the charges of appearance and attendance in such cases have been the jurors. also there had been inflation. defendants sued or informed against upon penal statutes may appear by attorney so that they may avoid the inconvenience of traveling a long distance to attend and put to bail. no only sheriffs, but their employees who impanel juries or execute process in the courts shall take an oath of office. a hundred shall answer for any robbery therein only if there has been negligence or fault in pursuit of the robber after a hue and cry is made because the past law has been too harsh and required payment for offenses from people unable to pay who have done everything reasonable to catch the robber. the star chamber became the central criminal court after , and punished perjury, corruption, malfeasance throughout the legal system such as jury corruption and judicial bribery, rioting, slander, and libel. its procedure was inquisitory rather than accusative. it heard witnesses in camera [not in the presence of the suspected]. trial was by systematic interrogation of the suspected on oath, with torture if necessary in treason cases. silence could be taken for a confession of guilt. there was no jury. queen elizabeth chose not to sit on this court. punishments were imprisonment, fines, the pillory, ear cropping or tacking, whipping, stigmata on the face, but not death or any dismemberment except for the ears. (the gentry was exempt from whipping.) the ecclesiastical high commission [later called the court of high commission or high court of ecclesiastical causes] took over criminal cases formerly heard by the church courts. it also heard matters of domestic morals. it was led by bishops and privy council members who in were authorized by a statute of parliament to keep order within the church, discipline the clergy, and punish such lay offenses as were included in the ecclesiastical jurisdiction. obstinate heresy is still a capital crime, but practically the bishops have little power of forcing heretics to stand trial. if anyone maintains papal authority, he forfeits his goods; on a third conviction, he is a traitor. the clergyman who adopts a prayer book other that the prescribed one commits a crime. excommunication has imprisonment behind it. elizabeth gave this court the power to fine and imprison, which the former church courts had not had. at first, the chief work was depriving papists of their benefices. suits on titles to land were restricted to the common law courts and no longer to be heard in the star chamber, chancery court, or in the court of requests (equity for poor people). the queen's privy council investigated sedition and treason, security of the regime, major economic offenses, international problems, civil commotion, officials abusing their positions, and persons perverting the course of justice. it frequently issued orders to justices of the peace, for instance to investigate riots and crimes, to enforce the statutes against vagrancy and illegal games, to regulate alehouses, to ensure that butchers, innkeepers, and victuallers did not sell meat on fish days, and to gather information needed from the counties. the justices of the peace decided misdemeanors such as abduction of heiresses, illegal entry, petty thievery, damage to crops, fence-breaking, brawling, personal feuds, drunken pranks, swearing, profanation of the sabbath, alehouse nuisances, drunkenness, perjury, and malfeasance by officials. they held petty and quarter sessions. the justices of the peace had administrative duties in control of vagrancy, upkeep of roads and bridges, and arbitration of lawsuits referred to them by courts. they listed the poor in each parish community, assessed rates for their maintenance, and appointed overseers to administer the welfare system, deploying surplus funds to provide houses of correction for vagrants. raw materials such as wool, flax, hemp, and iron were bought upon which the able-bodied unemployed could be set to work at the parochial level. they determined wages in their districts, with no statutory ceiling on them, for all laborers, weavers, spinsters, workmen and workwomen working by the day, week, month, or year, or taking any work at any person's hand. there were about justices of the peace per county. all were unpaid. they performed these duties for the next years. the justices of assize rode on circuit twice a year to enforce the criminal law and reported their assessment of the work of the justices of the peace back to the privy council. the duty to hear and determine felonies was taken from justices of the peace by . the justices of assize did this work. accused people could wait for years in gaol before their case was heard. felonies included breach of prison, hunting by night with painted faces, taking horses to scotland, stealing of hawks' eggs, stealing cattle, highway robbery, robbing on the sea, robbing houses, letting out of ponds, cutting of purses, deer-stealing at night, conjuring and witchcraft, diminution of coin, counterfeiting of coins, and impenitent roguery and idleness. the penalty was death. many people were hanged for the felony of theft over d. some bold men accused of felony refused to plead so that they could not be tried and found guilty. they died of heavy weights being placed on their bodies. but then their property could go to their heirs. the court of queen's bench and exchequer indirectly expanded their jurisdiction to include suits between citizens, formerly heard only the court of common pleas or chancery. chancery interrogated defendants. chancery often issued injunctions against suits in the common law courts. trial by combat was very rare. benefit of clergy may not be had for stabbing a person who has no weapon drawn, if he dies within six months. pleadings had to be in writing and oral testimony was given by sworn witnesses. case decisions are in books compiled by various reporters who sit in on court hearings rather than in year books. in the common law, trespass has given rise to the offshoot branch of "ejectment", which becomes the common means of recovering possession of land, no matter what kind of title the claimant asserts. trespass on the case has given rise to the offshoot branch of "trover" [finding another's goods and converting them to one's own use]. trover gradually supplants detinue, in which there is compurgation. in the common law courts, the action of assumpsit for enforcing certain promises is used more than the action of debt in those cases where there is a debt based on an agreement. the essential nature of "consideration" in contract is evolving from the procedural requirements for the action of assumpsit. consideration may consist in mutual promises, a precedent debt, or a detriment incurred by one who has simultaneously received a promise related to the detrimental action. consideration must be something, an act, or forbearance of an act that is of value. for instance, forbearance to sue a worthless claim is not consideration. the abstract concept of contract as an agreement between two parties which is supported by consideration is developing as the number of various agreements that are court enforceable expands. for instance the word "consideration" is used in hayward's case in in the court of wards on the construction of a deed. sir rowland hayward was seised in fee of the doddington manor and other lands and tenements, whereof part was in demesne, part in lease for years with rents reserved, and part in copyhold, by indenture, "in consideration of a certain sum of money" paid to him by richard warren and others, to whom he demised, granted, bargained and sold the said manor, lands and tenements, and the reversions and remainders of them, with all the rents reserved upon any demise, to have and to hold to them and their assigns, presently after the decease of sir rowland, for the term of years. it was held that the grantees could elect to take by bargain and sale or by demise, each of which had different consequences. in another case, a delivered s. to b to the use of c, a woman, to be delivered to her on the day of her marriage. before this day, a countermanded it, and called home the money. it was held in the chancery court that c could not recover because "there is no consideration why she should have it". in a case concerning a deed, a sold land to b for s., with confidence, that it would be to the use of a. this bargain "hath a consideration in itself ... and such a consideration is an indenture of bargain and sale". it was held that the transaction was not examinable except for fraud and that a was therefore estopped. a court reporter at the king's bench formulated two principles on consideration of the case of wilkes against leuson as: "the heir is estopped from falsifying the consideration acknowledged in the deed of feoffment of his ancestor. where a tenant in capite made a feoffment without consideration, but falsely alleged one in the deed on an office finding his dying seised, the master of the wards cannot remove the feoffees on examining into the consideration, and retain the land until &c. and though the heir tended, still if he do not prosecute his livery, the queen must admit the feoffees to their traverse, and to have the farm, &c." the court reporter summarized this case as follows: wilkes, who was merchant of the staple, who died in february last past, made a feoffment in the august before his death to one leuson, a knight, and his brother, and another, of the manor of hodnel in the county of warwick; and the deed,(seen) for seven thousand pounds [ , s.] to him paid by the feoffees, of which sum he made acquittance in the same deed (although in fact and in truth not a half-penny was paid), gave, granted, and confirmed &c "habendum eir et hoeredibus suis in perpetuum, ad proprium opus et usum ipsorum a. b. et c. in perpetuum," and not "hoeredum suorum," together with a clause of warranty to them, their heirs and assigns, in forma proedicta: and notwithstanding this feoffment he occupied the land with sheep, and took other profits during his life; and afterwards his death was found on a diem clausit extremum by office, that he died seised of the said manor in fee, and one i. wilkes his brother of full age found his next heir, and a tenure in capite found, and now within the three months the said feoffees sued in the court of wards to be admitted to their traverse, and also to have the amnor in farm until &c. and although the said i. wilkes the brother had tendered a livery, yet he had not hitherto prosecuted it, but for cause had discontinued. and whether now the master of the wards at his discretion could remove the feoffees by injunction out of possession upon examination of the said consideration of the said feoffment which was false, and none such in truth, and retain it in the hands of the queen donec et quousque &c. was a great question. and by the opinion of the learned counsel of that court he cannot do it, but the queen is bound in justice to give livery to him who is found heir by the office, or if he will not proceed with that, to grant to the tenderers the traverse, and to have the farm, &c. the request above mentioned. and this by the statutes ... and note, that no averment can be allowed to the heir, that the said consideration was false against the deed and acknowledgment of his ancestor, for that would be to admit an inconvenience. and note the limitation of the use above, for divers doubted whether the feoffees shall have a fee-simple in the sue, because the use is not expressed, except only "to themselves (by their names) for ever;" but if those words had been wanting, it would have been clear enough that the consideration of seven thousand pounds had been sufficient, &c. for the law intends a sufficient consideration by reason of the said sum; but when the use is expressed otherwise by the party himself, it is otherwise. and also the warranty in the deed was "to them, their heirs, and assigns, in form aforesaid," which is a declaration of the intent of wilkes, that the feoffees shall not have the use in fee simple; and it may be that the use, during their three lives, is worth seven thousand pounds, and more &c. and suppose that the feoffment had been "to have to them and their heirs to the proper use and behoof of them the feoffees for the term of their lives for ever for seven thousand pounds," would they have any other estate than for the term of their lives in the use? i believe not; and so in the other case. a last example of a case concerning consideration is that of assaby and others against lady anne manners and others. the court reporter characterized the principle of the case as: "a. in consideration of his daughter's marriage covenants to stand seised to his own use for life, and that at his death she and her husband shall have the land in tail, and that all persons should stand seised to those uses, and also for further assurance. after the marriage he bargains and sell with fine and recovery to one with full notice of the covenants and use; this is of no avail, but on the death of a. the daughter and her husband may enter." the court reporter summarized this case as follows: a. was seised of land in fee, and in consideration of a marriage to be had between his daughter and heir apparent, and b. son and heir apparent of c. he covenanted and agreed by indenture with c. that he himself would have, hold, and retain the land to himself, and the profits of during his life, and that after his decease the said son and daughter should have the land to them and to the heirs of their two bodies lawfully begotten, and that all persons then or afterwards seised of the land should stand and be seised immediately after the marriage solemnized to the use of the said a. for the term of his life, and after his death to the use of the said son and daughter in tail as above, and covenanted further to make an assurance of the land before a certain day accordingly &c. and then the marriage took effect; and afterwards a. bargained and sold the land for two hundred marks [ , s.](of which not a penny is paid) to a stranger, who had notice of the first agreements, covenants, and use, and enfeoffed divers persons to this last use, against whom a common recovery was had to his last use; and also a. levied a fine to the recoverers before any execution had, and notwithstanding all these things a. continued possession in taking the profits during his life; and afterwards died; and the son and daughter entered, and made a feoffment to their first use. and all this matter was found in assize by assaby and others against lady anne manners and others. and judgment was given that the entry and feoffment were good and lawful, and the use changed by the first indenture and agreement. yet error was alleged. the judgment in the assize is affirmed. the famous shelley's case stands for the principle that where in any instrument an estate for life is given to the ancestor, and afterwards by the same instrument, the inheritance is limited whether mediately, or immediately, to his heirs, or heirs of his body, as a class to take in succession as heirs to him, the word "heirs" is a word of limitation, and the ancestor takes the whole estate. for example, where property goes to a for life and the remainder goes to a's heirs, a's life estate and the remainder merge into a fee in a. a can sell or devise this interest. edward shelley was a tenant in tail general. he had two sons. the older son predeceased his father, leaving a daughter and his wife pregnant with a son. edward had a common recovery (the premises being in lease for years) to the use of himself for term of his life, after his decease to the use of the male heirs of his body, and of the male heirs of the body of such heirs, remainder over. after judgment and the awarding of the writ of seisin, but before its execution, edward died. after his death, and before the birth of his older son's son, the writ of seisin was executed. the younger son entered the land and leased it to a third party. afterwards, the son of the older son was born. he entered the land and ejected the third party. it was held that the younger son had taken quasi by descent until the birth of the older son's son. the entry by the older son's son was lawful. the third party was lawfully ejected. (shelley's case, king's bench, , english reports - full reprint, vol. , page .) - - - chapter - - - - the times: - - due in part to increasing population, the prices of foodstuffs had risen sixfold from the later s, during which it had been stable. this inflation gradually impoverished those living on fixed wages. landlords could insist on even shorter leases and higher rents. london quadrupled in population. many lands that were in scattered strips, pasture lands, waste lands, and lands gained from drainage and disafforestation were enclosed for the introduction of convertible agriculture (e.g. market-oriented specialization) and only sometimes for sheep. the accompanying extinguishment of common rights was devastating to small tenants and cottagers. gentry and yeomen benefited greatly. there was a gradual consolidation of the land into fewer hands and demise of the small family farm. in towns, the mass of poor, unskilled workers with irregular work grew. prices finally flattened out in the s. society became polarized with a wealthy few growing wealthier and a mass of poor growing poorer. this social stratification became a permanent fixture of english society. poverty was no longer due to death of a spouse or parent, sickness or injury, or a phase in the life cycle such as youth or old age. many full-time wage earners were in constant danger of destitution. more subdivided land holdings in the country made holdings of cottagers miniscule. but these were eligible for parish relief under the poor laws. beside them were substantial numbers of rogues and vagabonds wandering the roads. these vagrants were usually young unmarried men. there were no more licensed liveries of lords. during the time to , there were distinct social classes in england which determined dress, convention in comportment which determined face-to-face contacts between superiors and inferiors, order of seating in church, place arrangement at tables, and rank order in public processions. it was influenced by power, wealth, life-style, educational level, and birth. these classes lived in separate worlds; their paths did not cross each other. people moved only within their own class. each class had a separate existence as well as a different life style from the other classes. so each class developed a wariness of other classes. however, there was much social mobility between adjacent classes. at the top were the gentry, about % of the population. their's was a landed wealth with large estate mansions. they employed many servants and could live a life of leisure. their lady wives often managed the household with many servants and freely visited friends and went out shopping, riding, or walking. they conversed with neighbors and made merry with them at childbirths, christenings, churchings, and funerals. gentlemen usually had positions of responsibility such as lords of manors and leaders in their parishes. these families often sent the oldest son to university to become a justice of the peace and then a member of parliament. they also served as justices and as county officers such as high constable of their hundred and grand jury member. their social, economic, and family ties were at least county-wide. they composed about gentle families, including the peers, who had even more landed wealth, which was geographically dispersed. after the peers were: baronets (created in ), knights, esquires, and then ordinary gentlemen. these titles were acquired by being the son of such or purchase. most gentry had a house in london, where they spent most of their time, as well as country mansions. about / of the land was in the hands of , of the nobility and landed gentry due in part to entails constructed by attorneys to favor hereditary interests. the gentry had also profited by commerce and colonial possessions. the country life of a country squire or gentleman dealt with all the daily affairs of a farm. he had men plough, sow, and reap. he takes part in the haying and getting cut grass under cover when a rain came. his sow farrows, his horse is gelded, a first lamb is born. he drags his pond and takes out great carps. his horses stray and he finds them in the pound. boys are bound to him for service. he hires servants, and some work out their time and some run away. his hog is stabbed. knaves steal his sheep. he and a neighbor argue about the setting up of a cottage. he borrows money for a daughter's dowry. he holds a leet court. he attends church on sunday and reads the lesson when called upon. he visits the local tavern to hear from his neighbors. country folk brawl. wenches get pregnant. men commit suicide, usually by hanging. many gentlemen spent their fortunes and died poor. new gentlemen from the lower classes took their place. the second class included the wealthier merchants and professional men of the towns. these men were prominent in town government. they usually had close family ties with the gentry, especially as sons. when wealthy enough, they often bought a country estate. the professional men included military officers, civil service officials, attorneys, some physicians, and a few clergymen. the instabilities of trade, high mortality rates in the towns, and high turnover rate among the leading urban families prevented any separate urban interest group arising that would be opposed to the landed gentry. also included in this second group were the most prosperous yeomanry of the countryside. the third class was the yeomanry at large, which included many more than the initial group who possessed land in freehold of at least s., partly due to inflation. freehold was the superior form of holding land because one was free to sell, exchange, or devise the land and had a political right to vote in parliamentary elections. other yeomen were those who possessed enough land, as copyholder or leaseholder, to be protected from fluctuations in the amount of the annual harvest, that is, at least acres. a copyholder rented land from a lord for a period of years or lives, usually three lives including that of the widow, and paid a substantial amount whenever the copyhold came up for renewal. the copyholder and leaseholder were distinguished from the mere tenant-at-will, whose only right was to gather his growing crop when his landlord decided to terminate his tenancy. the average yeoman had a one and a half story house, with a milkhouse, a malthouse, and other small buildings attached to the dwelling. the house would contain a main living room, a parlor, where there would be one or more beds, and several other rooms with beds. no longer was there a central great hall. cooking was done in a kitchen or over the open fire in the fireplace of the main room. furniture included large oak tables, stools, settes or forms, chests, cupboards, and a few hard-backed simple chairs. dishware was wood or pewter. the yeomen were among those who governed the nation. they often became sureties for recognizances, witnesses to wills, parish managers, churchwardens, vestrymen, the chief civil officers of parishes and towns, overseers of the poor, surveyors of bridges and highways, jurymen and constables for the justices of the peace, and sheriffs' bailiffs. the families and servants of these yeomen ate meat, fish, wheaten bread, beer, cheese, milk, butter, and fruit. their wives were responsible for the dairy, poultry, orchard, garden, and perhaps pigs. they smoked and cured hams and bacon, salted fish, dried herbs for the kitchen or of lavender and pot-pourri for sweetening the linen, and arranged apples and roots in lofts or long garrets under the roof to last the winter. they preserved fruits candied or in syrup. they preserved wines; made perfumes, washes for preserving the hair and complexion, rosemary to cleanse the hair, and elder-flower water for sunburn; distilled beverages; ordered wool hemp, and flax to spin for cloth (the weaving was usually done in the village); fashioned and sewed clothes and house linens; embroidered; dyed; malted oats; brewed; baked; and extracted oils. many prepared herb medicines and treated injuries, such as dressing wounds, binding arteries, and setting broken bones. wives also ploughed and sowed, weeded the crops, and sheared sheep. they sometimes cared for the poor and sold produce at the market. some yeomen were also tanners, painters, carpenters, or blacksmiths; and as such they were frequently brought before the justices of the peace for exercising a craft without having served an apprenticeship. the third class also included the freemen of the towns, who could engage independently in trade and had political rights. these were about one-third of the male population of the town. the fourth class included the ordinary farmer leasing by copyhold, for usually years, five to fifty acres. from this class were drawn sidesmen [assistants to churchwardens] and constables. they had neither voice nor authority in government. their daily diet was bacon, beer, bread, and cheese. also in this class were the independent urban craftsmen who were not town freemen. their only voice in government was at the parish level. the fifth and lowest class included the laborers and cottagers, who were usually tenants at will. they were dependent on day labor. they started work at dawn, had breakfast for half an hour at six, worked until dinner, and then until supper at about six; in the summer they would then do chores around the barns until eight or nine. some were hedgers, ditchers, ploughmen, reapers, shepherds, and herdsmen. the cottagers' typical earnings of about s. a day amounted to about shillings a year, which was almost subsistence level. accordingly they also farmed a little on their four acres of land with garden. some also had a few animals. they lived in a one or two room cottage of clay and branches of trees or wood, sometimes with a brick fireplace and chimney, and few windows. they ate bread, cheese, lard, soup, and greens. if a laborer was unmarried, he lived with the farmer. theirs was a constant battle for survival. they often moved because of deprivation to seek opportunity elsewhere. the town wage-earning laborers ranged from journeymen craftsmen to poor casual laborers. the mass of workers in london were not members of guilds, and the crime rate was high. the last three classes also contained rural craftsmen and tradesmen, who also farmed. the variety of trades became very large, e.g. tinsmiths, chain smiths, pewterers, violin makers, and glass painters. the curriers, who prepared hides for shoemakers, coachmakers, saddlers, and bookbinders, were incorporated. the fourth and fifth classes comprised about three fourths of the population. then there were the maritime groups: traders, shipowners, master and seamen, and the fishers. over one fourth of all households had servants. they were the social equals of day laborers, but materially better off with food and clothing plus an allowance of money of two pounds [ s.] a year. those who sewed got additional pay for this work. there was no great chasm between the family and the servants. they did not segregate into a parlor class and a kitchen class. the top servants were as educated as their masters and ate at the same table. great households had a chaplain and a steward to oversee the other servants. there was usually a cook. lower servants ate together. servants were disciplined by cuffs and slaps and by the rod by master or mistress. maids wore short gowns, a large apron, and a gypsy hat tied down over a cap. chamber maids helped to dress their mistresses. servants might sleep on trundle beds stored under their master's or mistress's bed, in a separate room, or on the straw loft over the stables. a footman wore a blue tunic or skirted coat with corded loop fasteners, knee-britches, and white stockings. he walked or ran on foot by the side of his master or mistress when they rode out on horseback or in a carriage and ran errands for him, such as leading a lame horse home or running messages. a good footman is described in this letter: "sir, - you wrote me lately for a footman, and i think this bearer will fit you: i know he can run well, for he has run away twice from me, but he knew the way back again: yet, though he has a running head as well as running heels (and who will expect a footman to be a stayed man) i would not part with him were i not to go post to the north. there be some things in him that answer for his waggeries: he will come when you call him, go when you bid him, and shut the door after him; he is faithful and stout, and a lover of his master. he is a great enemy to all dogs, if they bark at him in his running; for i have seen him confront a huge mastiff, and knock him down. when you go a country journey, or have him run with you a-hunting, you must spirit him with liquor; you must allow him also something extraordinary for socks, else you must not have him wait at your table; when his grease melts in running hard, it is subject to fall into his toes. i send him to you but for trial, if he be not for your turn, turn him over to me again when i come back..." dress was not as elaborate as in elizabethan times. for instance, fewer jewels were worn. ladies typically wore a brooch, earrings, and pearl necklaces. men also wore earrings. watches with elaborate cases were common. women's dresses were of satin, taffeta, and velvet, and were made by dressmakers. pockets were carried in the hand, fastened to the waist by a ribbon, or sewn in petticoats and accessible by a placket opening. the corset was greatly reduced. women's hair was in little natural-looking curls, a few small tendrils on the forehead with soft ringlets behind the ears, and the back coiled into a simple knot. men also wore their hair in ringlets. they had pockets in their trousers, first as a cloth pouch inserted into an opening in the side seam, and later sewn into the side seam. the bereaved wore black, and widows wore a black veil over their head until they remarried or died. rouge was worn by lower class women. the law dictating what clases could wear what clothes was difficult to enforce and the last one was in . cotton chintzes, calicoes, taffetas, muslins, and ginghams from india were fashionable as dress fabrics. simple cotton replaced linen as the norm for napkins, tablecloths, bed sheets, and underwear. then it became the fashion to use calicoes for curtains, cushions, chairs, and beds. its inexpensiveness made these items affordable for many. there was a cotton-weaving industry in england from about , established by cotton workmen who fled to england in from antwerp, which had been captured. by , there were automatic weaving looms in london which could be operated by a novice. toothbrushes, made with horsehair, were a new and costly luxury. even large houses now tended to do without a courtyard and became compacted into one soaring and stately whole. a typical country house had deep-set windows of glass looking into a walled green court with a sundial in it and fringed around with small trees. the gables roofs are steep and full of crooks and angles, and covered with rough slate if there was a source for such nearby. there was an extensive use of red tile, either rectangular or other shapes and with design such as fishscales. the rooms are broad and spacious and include hall, great parlor, little parlor, matted chamber, and study. in the hall was still the great, heavy table. dining tables were covered with cloth, carpet, or printed leather. meals were increasingly eaten in a parlor. noble men preferred to be waited upon by pages and grooms instead of by their social equals. after dinner, they deserted the parlor to retire into drawing rooms for conversation and desserts of sweet wine and spiced delicacies supplemented by fruit. afterward, there might be dancing and then supper. in smaller parlors, there was increasing use of oval oak tables with folding leaves. chests of drawers richly carved or inlaid and with brass handles were coming in. walls were wainscotted and had pictures or were hung with tapestry. carpets, rugs, and curtains kept people warm. there were many stools to sit on, and some arm chairs. wide and handsome open staircases separated the floors, instead of the circular stone closed stairwells. upstairs, the sitting and bedrooms open into each other with broad, heavy doors. bedrooms had four-post beds and wardrobes with shelves and pegs. under the roof are garrets, apple-lofts, and root-chambers. underneath is a cellar. outside is a farmyard with outbuildings such as bake house, dairy, cheese- press house, brewery, stilling house, malt house, wood house, fowl house, dove cot, pig stye, slaughter-house, barns, stable, and sometimes a mill. there were stew-ponds for fish and a park with a decoy for wild fowl. there was also a laundry, carpenter's bench, blacksmith's forge, and pots and equipment of a house painter. in the s, towns were fortified by walled ditch instead of relying on castles, which couldn't contain enough men to protect the townspeople. also in towns, water was supplied by local pumps and wells. also, floors were of polished wood or stone and strewn with rushes in the country. a ladies' attendant might sleep the same bedroom on a bed which slid under the ladies' bed. apprentices and shop boys had to sleep under the counter. country laborers slept in a loft on straw. bread was made in each household. there were bedroom chairs with enclosed chamber pots. wood fires were the usual type. coal was coming in to use in the towns and near coal mines. charcoal was also used. food was roasted on a spit over a fire, baked, or broiled. people still licked their fingers at meals. the well-to-do had wax candles. tallow dips were used by the poor and for the kitchen. people drank cordials and home-made wines made with grapes, currants, oranges, or ginger. some mead was also drunk. tobacco, potatoes, tea, asparagus, kidney beans, scarlet runners, cardoons (similar to artichokes), horse-radish, sugar-cane, and turkeys for christmas, were introduced from the new world, china, and india. tea was a rare and expensive luxury. coffee was a new drink. with the cane sugar was made sweetened puddings, pies, and drinks. the potato caused the advent of distillation of alcohol from fermented potato mashes. there was a distiller's company by . distilleries' drinks had higher alcoholic content than wine or beer. the merchant adventurers sold in town stores silks, satins, diamonds, pearls, silver, and gold. there were women peddlers selling hats and hosiery from door to door and women shopkeepers, booksellers, alehouse keepers, linen drapers, brewers, and ale- wives. london had polluted air and water, industrial noise, and traffic congestion. work on farms was still year-round. in january and february, fields were plowed and harrowed and the manure spread. also, trees and hedges were set, fruit trees pruned, and timber lopped. in march and april, the fields were stirred again and the wheat and rye sown. in may gardens were planted, hop vines trained to poles, ditches scoured, lambs weaned, and sheep watched for "rot". in june sheep were washed and sheared, and fields were spread with lime and clay, and manured. in july hay was cut, dried, and stacked. in august crops were harvested, which called for extra help from neighbors and townsmen who took holidays at harvesting. then there was threshing, and the sowing of winter wheat and rye. in the autumn, cider from apples and perry from pears may be made. by november the fall planting was finished and the time had come for the killing of cattle and hanging up their salted carcasses for winter meat. straw would be laid down with dung, to be spread next spring on the fields. stock that could not live outdoors in winter were brought into barns. government regulated the economy. in times of dearth, it ordered justices of the peace to buy grain and sell it below cost. it forbade employers to lay off workers whose products they could not sell. it used the star chamber court to enforce economic regulations. there were food riots usually during years of harvest failure, in which organized groups seized foodstuffs being transported or in markets, and enclosure riots, in which organized groups destroyed hedges and fences erected in agrarian reorganization to restrict access to or to subdivide former common pasture land. these self- help riots were last resorts to appeals and were orderly. the rioters were seldom punished more than a fining or whipping of the leaders and action was taken to satisfy the legitimate grievances of the rioters. the poor came to resent the rich and there was a rise in crime among the poor. penal laws were frequently updated in an effort to bring more order. enclosures of land were made to carry on improved methods of tillage, which yielded more grain and more sheep fleece. drainage of extensive marsh land created more land for agriculture. waste land was used to breed game and "fowling" contributed to farmers' and laborers' livelihoods. killing game was not the exclusive right of landowners, but was a common privilege. the agricultural laborer, who worked for wages and composed most of the wage- earning population, found it hard to make ends meet. in , weekly wages for a mason were s. or s., for a laborer were s. or s., for a carpenter s. or s. an unskilled laborer received s. a day. there were conventions of paternalism and deference between neighbors of unequal social status. a social superior often protected his lessers from impoverishment for instance, the landlord lessened rents in times of harvest failure. a social superior would help find employment for a lesser person or his children, stand surety for a recognizance, intervene in a court case, or have his wife tend a sick member of his lesser's family. a social obligation was felt by most of the rich, the landlords, the yeomen farmers, and the clergy. this system of paternalism and social deference was expressed and reinforced at commonly attended village sports and games, dances, wakes and "ales" (the proceeds of which went to the relief of a certain person in distress), "rush-bearings", parish feasts, weddings, christenings, "churchings" to give thanks for births, and funerals. even the poor were buried in coffins. also there was social interaction at the local alehouse, where neighbors drank, talked, sung, and played at bowls or "shove goat" together. quarrelling was commonplace. for instance, borough authorities would squabble over the choice of a schoolmaster; the parson would carry on a long fight with parishioners over tithe hens and pigs; two country gentlemen would continue a vendetta started by their great-grandfathers over a ditch or hunting rights; the parishioners would wrangle with the churchwardens over the allocation of pews. the position of one's pew reflected social position. men tried to keep the pews of their ancestors and the newly prosperous wanted the recognition in the better pews, for which they had to pay a higher amount. but, on the other hand, farmers were full of good will toward their neighbors. they lent farm and kitchen equipment, helped raise timbers for a neighbor's new barn, sent food and cooked dishes to those providing a funeral feast and to the sick and incurable. village standards of behavior required that a person not to drink to excess, quarrel, argue, profane, gossip, cause a nuisance, abuse wife or children, or harbor suspicious strangers, and to pay scot and bear lot as he was asked. neighbors generally got along well and frequently borrowed and loaned small sums of money to each other without interest for needs that suddenly arose. bad behavior was addressed by mediation and, if this failed, by exclusion from holy communion. there was also whipping and the stocks. marital sex was thought to be good for the health and happiness of the husband and enjoyable by wives. the possibility of female orgasm was encouraged. both women and men were thought to have "seed" and drank certain potions to cause pregnancy or to prevent birth. some argued that orgasm of both partners was necessary for the "seed" of the male and female to mix to produce pregnancy. most women were in a virtual state of perpetual pregnancy. both catholics and protestants thought that god wanted them to multiply and cover the earth. catholics thought that the only goal of sex was procreation. men were considered ready for marriage only when they could support a family, which was usually at about age . brides were normally virgins, but there was bridal pregnancy of about %. women usually married at about age . marriages were usually within one's own class and religion. the aristocracy often initiated matches of their children for the sake of continuity in the family estates and tried to obtain the consent of their children for the match in mind. the age of consent to marry was for boys and for girls. girls in arranged marriages often married at , and boys before they went to university. but the girls usually stayed with their parents for a couple of years before living with their husbands. if married before puberty, consummation of the marriage waited for such time. in other classes, the initiative was usually taken by the child. dowries and marriage portions usually were given by the parents of the bride. wet-nurses frequently were used, even by puritans. there were no baby bottles. many babies died, causing their parents much grief. about / of women's deaths occurred during childbirth. a child was deemed to be the husband's if he was within the four seas, i.e. not in foreign lands, for an agreed length of time. illegitimacy was infrequent, and punished by church-mandated public penance by the mother and lesser penance and maintenance by the father. adultery was subject to church court sanctions as was defamation for improper sexual conduct. the established church still taught that the husband was to be the authority in marriage and had the duty to provide for, protect, and maintain his wife. wives were to obey their husbands, but could also admonish and advise their husbands without reproach. in literature, women were portrayed as inferior to men intellectually and morally as well as physically. in reality wives did not fit the image of women portrayed by the church and literature. quarrels were not uncommon and were not stopped by a husband's assertion of authority. wives were very active in the harvesting and did casual labor of washing, weeding, and stone-picking. farmers' and tradesmen's wives kept accounts, looked after the garden, orchard, pigs, and poultry; brewed beer; spun wool and flax; and acted as agents in business affairs. wives of craftsmen and tradesmen participated actively in their husbands' shops. wives of weavers spun for their husband's employers. wives of the gentry ran their households with their husbands. the lady of a large mansion superintended the household, ordering and looking after the servants, and seeing to the education of her children. mothers handed down their recipes to their daughters. women still did much needlework and embroidering for clothing and house, such as cushions, screens, bed curtains, window curtains, hangings, footstools, book covers, and small chests of drawers for valuables. liking simplicity, puritan women did less of this work. naming one's wife as executor of one's will was the norm. jointures were negotiated at the betrothal of ladies. widows of manorial tenants were guaranteed by law one-third of family real property, despite creditors. but most testators went beyond this and gave a life interest in the farm or family house. so it was customary for a widow to remain in occupation of the land until her death or remarriage. few widow or widowers lived with one of their children. widows usually had their husband's guild rights and privileges conferred upon them, e.g. to receive apprentices. in london, custom gave / of a deceased husband's estate to his wife on his death, but / if there were no children. the other part went according to his will. if a widows did not remarry in memory of her husband, she was esteemed. but remarriage was common because the life expectancy after birth was about years. sons of the well-to-do went into law, the church, the army, or the navy. if not fit for such, they usually went into a trade, apprenticing, for instance, with a draper, silk-merchant, or goldsmith. sometimes a son was sent to the house of a great man as a page or esquire to learn the ways of courtiers and perhaps become a diplomat. the guild with its master and their employees was being replaced by a company of masters. about % of the population was catholic, although it was against the law to practice this religion. indeed it long been the practice to sequester their lands, punish them for going to mass, fine them for not attending the established church, banish their priests, and imprison those who aided priests. there was a catholic plot in to blow up parliament and the king with gunpowder and to restore catholicism as the state religion with a catholic king. it was discovered and the conspirators were executed. then there was a crack-down on catholics, with houses being searched for hiding places for priests. also, legislation was passed barring catholics from many offices. james i ruled over both england and scotland. he had come from scotland, so was unfamiliar with english love of their rights and passion for liberty and justice. when he came to the throne, he had a conference with a group of puritans who asked for certain reforms: ceremonies such as the cross in baptism and the ring in marriage should not be used, only educated men competent to preach should be made ministers, bishops should not be allowed to hold benefices that they did not administer, and minor officials should not excommunicate for trifles and twelve-penny matters. he not only denied their requests, but had the english bible revised into the king james version, which was published in . this was to replace the popular geneva bible written by english protestant refugees from catholic queen mary's reign, which he did not like because some of its commentary was not highly favorable to kings. religion was much discussed by all and scripture was frequently quoted. james didn't believe a king had to live by the law; he hadn't as king of scotland. he tried to imbue into england the idea of a divine right of kings to rule that he had held in scotland. the established church quickly endorsed and preached this idea. the selection of the clergy of the parish churches was now often in the hands of the parishioners, having been sold to them by the patron lord of the manor. some patrons sold the right of selection to a tradesman or yeoman who wished to put in his son or a relative. some rights of selection were in the hands of bishops, the colleges, and the crown. the parish clergyman was appointed for life and removed only for grave cause. most parishoners wanted a sermon created by their minister instead of repetitious homilies and constant prayer. they thought that the object of worship in church was to rouse men to think and act about the problems of the world. in , the king mandated that clergymen quote scripture only in context of the book of articles of religion of or the two books of homilies and not preach any sermon on sunday afternoon except on some part of the catechism or some text out of the creed, ten commandments, or the lord's prayer. the puritan movement grew. about % of the protestants were puritans. these included country gentlemen and wealthier traders. they dressed simply in gray or other drab colors and wore their hair short to protest the fashion of long curls. they lived simply and disapproved of dancing because it induced lasciviousness and of theater because of its lewdness. theaters and brothels still shared the same neighborhoods, the same customers, and sometimes the same employees. prostitutes went to plays to find customers; men shouldered and shoved each other in competing to sit next to attractive women to get to know them. the puritans also disapproved of cock fights because they led to gambling and disorder, and maypole celebrations because of their paganism. there was less humor. many became stoics. the puritan church ceremonies were plain, with no ornamentation. puritans prayed several times a day and read the bible to each other in family groups to look for guidance in their conduct and life. they asked for god to intervene in personal matters and looked for signs of his pleasure or displeasure in happenings such as a tree falling close but not touching him, or his horse throwing him without injury to him. when there was an illness in the family or misfortune, they examined their past life for sins and tried to correct shortcomings. they circulated records of puritan lives including spiritual diaries. they believed in the equality of men and that a good man was better than a bad peer, bishop, or king. puritan influence made families closer and not merely dependent on the will of the husband or father. there was a sense of spiritual fellowship among family members as individuals. they emphasized the real need of a lasting love relationship between husband and wife, so a mutual liking that could develop into love between a young couple in an arranged match was essential. most puritans felt that the bishops were as tyrannical as the pope had been and that more reform was needed. they favored the presbyterian form of church government developed by john calvin in switzerland. the presbyter was the position below bishop. parishes were governed by boards consisting of a minister and lay elders elected by the parishioners. these boards sent elected representatives to councils. all lay elders and ministers had equal rank with each other. the calvinist god preordained salvation only for the elect and damnation and everlasting punishment for the rest of humanity, but the puritans had an optimism about avoiding this damnation. they believed that at his conversion a person received grace and became predestined for salvation. they rejected all ecclesiastical institutions except as established by each parish over its own elected pastor and members. they rejected the established church's control from the top by bishops. they believed in negotiating directly with god for the welfare of the soul without the priest or church organization. the fear of witchcraft grew with puritanism. poor decrepit old defenseless women, often deformed and feeble-minded, were thought to be witches. their warts and tumors were thought to be teats for the devil to suck or the devil's mark. cursing or ill-tempers (probably from old age pains) or having cats were further indications of witchery. when the king learned in that the puritans had prevented certain recreations after the sunday service, he proclaimed that the people should not be restrained from lawful recreations and exercise such as dancing, archery for men, leaping, vaulting, may- games, whitsunales, morris-dances, and may-pole sports. also women could carry rushes to decorate the church as they had done in the past. (still unlawful on sunday was bear and bull baitings and bowlings.) his stated purpose was to prevent people such as catholics from being deterred from conversion, to promote physical fitness for war, and to keep people from drinking and making discontented speeches in their ale houses. besides the puritans, there were other independent sects, such as the congregationalists, whose churches gathered together by the inspiration of jesus. this sect was started by english merchants residing in holland who set up congregations of englishmen under their patronage there; they kept minister and elders well under their control. the baptists emerged out of the independents. they believed that only adults, who were capable of full belief, and not children, could be baptized. they also believed that it was the right of any man to seek god's truth for himself in the scriptures and that obedience to the state should not extend beyond personal conscience. one fourth of all children born did not live to the age of ten, most dying in their first year. babies had close caps over their head, a rattle, and slept in a sturdy wood cradle that rocked on the floor, usually near the hearth. babies of wealthier families had nurses. the babies of ladies were suckled by wet nurses. parents raised children with affection and tried to prepare them to become independent self-sustaining adults. there was less severity than in tudor times, although the maxim "spare the rod and spoil the child" was generally believed, especially by puritans, and applied to even very young children. in disciplining a child, an admonition was first used, and the rod as a last resort, with an explanation of the reasons for its use. there were nursery rhymes and stories such as "little bo-peep", "jack and the beanstalk", "tom thumb", "chicken little", and robin hood and king arthur tales, and probably also "puss in boots", "red ridinghood", "cinderella", "beauty and the beast", "bluebeard" and aesop's fables. "little jack horner" who sat in a corner was a satire on the puritan aversion to christmas pudding and sense of conscious virtue. toys included dolls, balls, drums, and hobby horses. children played "hide and seek", "here we go around the mulberry bush", and other group games. school children were taught by "horn books". this was a piece of paper with the alphabet and perhaps a religious verse, such as the paternoster prayer, that was mounted on wood and covered with thin horn to prevent tearing. little girls cross-stitched the alphabet and numerals on samplers. block alphabets were just coming in. most market towns had a grammar school which would qualify a student for university. they were attended by sons of noblemen, country squires [poor gentlemen], merchants, and substantial yeomen, and in some free schools, the poor. school hours were from : a.m. to noon or later. multiplication was taught. if affordable, families had their children involved in education after they were small until they left home at about fifteen for apprenticeship or service. otherwise, children worked with their families from the age of seven, e.g. carding and spinning wool, until leaving home at about fifteen. there were boarding schools such as winchester, eton, westminster, st. paul's, and merchant taylors'. there, senior boys selected for conduct and ability supervised younger boys. they thereby got experience for a future in public life. the system was also a check on bullying of the weak by the strong. the curriculum included lilly's "grammar", aesop, terence's roman comic plays, virgil's "aeneid", the national epic of rome, cicero's "letters" reflecting roman life, sallust's histories showing people and their motives, caesar's "commentaries" on the gallic and civil wars, horace's "epistles" about life and poetry, poet ovid's "metamorphoses" on adventures and love affairs of deities and heros, or "fasti" on roman religious festivals and customs, donatus' grammar book, and other ancient latin authors. football, with hog bladders, and tennis were played. these schools were self-supporting and did their own farming. private schools for girls were founded in and around london. they were attended by daughters of the well-to-do merchant class, nobility, and gentry. they were taught singing, playing of instruments, dancing, french, fine sewing, embroidery, and sometimes arithmetic. fewer served in the house of some noble lady as before. most commonly, the sons and daughters of gentlemen and nobles were taught by private tutors. a tutor in the house educated the girls to the same extent as the boys. there were not many girls' boarding schools. frequently, the mother educated her daughters. a considerable number of girls of other backgrounds such as the yeomanry and the town citizenry somehow learned to read and write. boys began at university usually from age to , but sometimes as young as . the universities provided a broad-based education in the classics, logic and rhetoric, history, theology, and modern languages for gentlemen and gave a homogenous national culture to the ruling class. there was a humanist ideal of a gentleman scholar. the method of study based largely on lectures and disputations. each fellow had about five students to tutor. in many cases, he took charge of the finances of his students, paying his bills to tradesmen and the college. his reimbursement by the students' fathers put them into friendly contact with the family. the students slept in trundle beds around his bed and had an adjacent room for study. scholasticism was only starting to give way to modern studies. aristotle, whose authority was paramount, remained the lynch pin of university studies, especially for logic and dialectic. the study of rhetoric was based on quintilian, the latin writer, and the greek treatise of hermogenes of tarsus. also studyed was cicero's orations as models of style. examination for degrees was by disputation over a thesis of the student. the b.a. degree was given after four years of study, and the m.a. after three more. there were advanced degrees in civil law (after seven more years of study), medicine (after seven years), divinity (required more than seven years), and music. many of the men who continued for advanced degrees became fellows and took part in the teaching. most fellowships were restricted to clerics. oxford and cambridge universities operated under a tutorial system. access to grammar schools and universities was closed to girls of whatever class. oxford university now had the bodleian library. in the universities, there were three types of students: poor scholars, who received scholarships and also performed various kinds of service such as kitchen work and did errands for fellows such as carrying water and waiting on tables; commoners, who paid low fees and were often the sons of economical gentlemen or businessmen; and the fellow commoners (a privileged and well-to-do minority, usually sons of noblemen or great country gentlemen). the fellow commoners paid high fees, had large rooms, sometimes had a personal tutor or servant, and had the right to eat with the fellows at high table. here, gentlemen made friends with their social equals from all over the country. students wore new- fashioned gowns of any colors and colored stockings. they put on stage plays in latin and english. the students played at running, jumping, and pitching the bar, and at the forbidden swimming and football. they were not to have irreligious books or dogs. cards and dice could be played only at christmas time. students still drank, swore, and rioted, but they were disallowed from going into town without special permission. those below a b.a. had to be accompanied by a tutor or an m.a. they were forbidden from taverns, boxing matches, dances, cock fights, and loitering in the street or market. sometimes a disputation between two colleges turned into a street brawl. punishment was by flogging. each university had a chancellor, usually a great nobleman or statesman, who represented the university in dealings with the government and initiated policies. the vice-chancellor was appointed for a year from the group of heads of college. he looked out for the government of halls, enforced the rules of the university, kept its courts, licensed wineshops, and shared control of the town with the mayor. tutors were common. they resided at the boy's house or took boys to board with them at their houses in england or on the continent. the tutor sometimes accompanied his student to grammar school or university. puritans frequently sent their sons to board in the house of some frenchman or swiss protestant to learn the calvinist doctrines or on tour with a tutor. certain halls in the universities were predominately puritan. catholics were required to have their children taught in a home of a protestant, a relative if possible. the inns of court were known as "the third university". it served the profession of law, and was a training ground for the sons of nobility and the gentry and for those entering the service of the commonwealth. some american colonists sent their sons there. the inns were self-governing and ruled by custom. students were supposed to live within the inn, two to a room, but often there were not enough rooms, so some students lived outside the quadrangles. every student was supposed to partake of commons or meals for a certain fraction of the year - from eight weeks to three months and there to argue issues in cases brought up by their seniors. in hall the students were not allowed to wear hats, though caps were permitted, nor were they to appear booted or spurred or carrying swords. for the first two years, they would read and talk much of the law, and were called clerks commoners. after two years they became mootmen or inner barristers. in five or six years they might be selected to be called to the bar as utter barristers, whose number was fixed. there was no formal examination. the utter barrister spent at least three more years performing exercises and assisting in directing the studies of the younger men. after this time, he could plead in the general courts at westminster, but usually carried on law work in the offices of other men and prepared cases for them. participating in moots (practice courts) was an important part of their education. lectures on statutes and their histories were given by readers physicians were licensed by universities, by the local bishop, or in london, by the college of physicians and surgeons. most were university graduates, and because of the expense of the education, from well-to-do families. for the b.a., they emphasized greek. for the m.a., they studied the works of greek physicians claudius galen and hippocrates, and perhaps some medieval authorities. after the m.a., they listened to lectures by the regius professor of medicine and saw a few dissections. three years of study gave them a m.b., and four more years beyond this the m.d. degree. a physician's examination of a patient cost s. and included asking him about his symptoms and feelings of pain, looking at this eyes, looking at his body for spots indicative of certain diseases, guessing whether he had a fever, feeling his pulse, and examining urine and stools, though there were no laboratory tests. smallpox was quickly recognized. it was treated by red cloth being wrapped around the person and put up to cover the windows; this promoted healing without scarring. gout was frequent. syphilis was common in london and other large centers, especially in court circles. it was ameliorated by mercury. an imbalance of the four humors: blood, phlegm, choler, bile was redressed by blood-letting, searing, draining, and/or purging. heart trouble was not easily diagnosed and cancer was not recognized as a life-threatening disease. childbirth was attended by physicians if the patient was well-to-do or the case was serious. otherwise women were attended only by midwives. they often died in childbirth, many in their twenties. the theory of nutrition was still based on the four humors and deficiency diseases were not understood as such. physician william harvey, son of a yeoman, discovered the circulation of the blood from heart to lungs to heart to body about . he had studied anatomy at padua on the continent and received an m.d. there and later at cambridge. then he accepted a position at the hospital of st. bartholomew to treat the poor who came there at least once a week for a year. he agreed to give the poor full benefit of his knowledge, to prescribe only such medicines as should do the poor good without regard to the pecuniary interest of the apothecary accompanying him, to take no reward from patients, and to render account for any negligence on his part. he also dissected animals. then he ascertained that the heart was a pump and that the valves in the veins prevented backflow and he followed the course of the circulation. the language of medicine became that of physics and mechanics, e.g. wheels and pulleys, wedges, levers, screws, cords, canals, cisterns, sieves and strainers. this diminished the religious concept that the heart was the seat of the soul and that blood had a spiritual significance and was sacred. a visit by a physician cost s. d. melancholia, which made one always fearful and full of dread, and mania, which made one think he could do supernatural things, were considered to be types of madness different from infirmities of the body. despite a belief held by some that anatomical investigation of the human body was a sin against the holy ghost, physicians were allowed to dissect corpses. so there were anatomy textbooks and anatomy was related to surgery. barber-surgeons extracted teeth and performed surgery. the physicians turned surgery over to the surgeons, who received a charter in by which barbers were excluded from all surgical work except blood-letting and the drawing of teeth. surgeons dealt with skin disease, ulcers, hernia, bladder stones, and broken bones, which they had some skill in setting. they performed amputations, which were without antiseptics or anesthesia. internal operations usually resulted in death. caesarian section was attempted, but did not save the life of the mother. apprenticeship was the route to becoming a surgeon. a college of surgeons was founded. students learned anatomy, for which they received the corpses of four executed felons a year. the apothecaries and grocers received a charter in , but in , the apothecaries were given the sole right to purchase and sell potions, and to search the shops of grocers and stop the sale by them of any potions. in london, the apothecaries were looked over by the college of physicians to see that they were not selling evil potions or poisons. in was the first pharmacy book. there were three hospitals in london, two for the poor, and bedlam [bethlehem] hospital for the insane. others were treated at home or in the physician's home. theaters were shut down in times of plague to prevent spread of disease there. towndwellers who could afford it left to live in the country. shakespeare wrote most of his plays. most popular reading was still bibles, prayer books, psalm books, and devotional works. also popular were almanacs, which started with a single sheet of paper. an almanac usually had a calendar; information on fairs, roads, and posts; farming hints; popularized scientific knowledge; historical information; sensational news; astrological predictions; and later, social, political, and religious comment. many households had an almanac. books tried to reconcile religion and science and religion and passion or sensuality. walter ralegh's "history of the world", written while he was in prison, was popular. ben johnson wrote poetry and satiric comedies. gentlemen read books of manners such as james cleland's "institution of a young noble man ( ). in , the first regular weekly newspaper was started. although there was a large advance in the quality of boys' education and in literacy, the great majority of the people were unable to read fluently. since writing was taught after one could read fluently, literacy was indicated by the ability to sign one's name. almost all gentlemen and professional men were literate. about half the yeomen and tradesmen and craftsmen were. only about % of husbandmen, laborers, servants, and women were literate. the royal postal system carried private as well as royal letters, to increase income to the crown. postmasters got regular pay for handling without charge the mail of letters that came from or went to the letter office in london. the postmaster kept horses which he let, with horn and guide, to persons riding "in post" at d. per mile. the post was to travel mph in summer and mph in winter and sound his horn four times in every mile or whenever he met travelers. wool and animals for butchering were sold in london with the sellers' agent in london taking the proceeds and paying out to their order, the origin of check writing. scriveners drew up legal documents, arranged mortgages, handled property transactions, and put borrowers in touch with lenders. they and the goldsmiths and merchants developed promissory notes, checks, and private paper money. the influx of silver from the new world was a major factor in the second great inflation in england and in the devaluation of money to about one third of what it had been. also contributing to the inflation was an outracing of demand over supply, and a debasement of the coinage. this inflation benefited tenants to the detriment of their lords because their rents could not be adjusted upward. there was an increase in bankruptcies. the elizabethan love of madrigal playing gradually gave way to a taste for instrumental music, including organs and flutes. the violin was introduced and popular with all classes. ballads were sung, such as "barbary allen", about a young man who died for love of her, after which she died of sorrow. when they were buried next to each other, a rose from his grave grew around a briar from her grave. the ballad "geordie" relates a story of a man hanged for stealing and selling sixteen of the king's royal deer. the ballad "matty groves" is about a great lord's fair young bride seducing a lad, who was then killed by the lord. in the ballad "henry martin", the youngest man of three brothers is chosen by lot to turn pirate to support his brothers. when his pirate ship tries to take a merchant ship, there is sea fight in which the merchant ship sinks and her men drown. the ballad "the trees they do grow high" tells of an arranged marriage between a year old woman and the year old son of a great lord. she tied blue ribbons on his head when he went to college to let the maidens know that he was married. but he died at age , after having sired a son. may day was a holiday with dancing around a maypole and people dressed up as characters such as queen of the may, robin hood, little john, friar tuck, maid marion, the fool, and the piper. new year's day was changed to january st. golf was played in scotland, and james introduced it into england. james i was the last monarch to engage in falconry. francis bacon wrote the "advancement of learning" and "novum organum" (new learning) in which he encouraged the use of the inductive method to find out scientific truths and also truths in general, that is reasoning from a sample to the whole. according to him, the only way to arrive at the truth was to observe and determine the correlations of facts. he advocated a process of elimination of ideas. his "new learning" showed the way out of the scholastic method and reverence for dogma into the experimental method. he wrote "natural and experimental history". he also studied the effect of cold in preventing animal putrefaction. galileo galilei, professor of mathematics at the university of padua in italy, conducted experiments, e.g. throwing objects off the tower of pisa in to show that all, whether light or heavy, fall at the same rate. this disproved the widely held theory that heavier objects fall faster than light objects. he proved that the force of gravity has the same effect on all objects regardless of their size or weight. his law stated that the speed of their descent increases uniformly with the time of the fall, i.e. speed = gravity times time. galileo determined that a pendulum, such as a hanging lamp, swings back and forth in equal intervals of time. for this he measured time with water running out of a vessel. also, the rate of oscillation varies inversely as the square of their cord length, regardless of material or weight. from his observation that an object sliding along a plane slows down at a decreasing rate and travels increasingly farther as the surfaces become smoother and more lubricated, he opined that the natural state of a body in motion is to stay in motion, and that it is slowed down by a force: friction. he conceived of the air offering a resistant force to an object in motion. he expanded on aristotle's idea of an object in a state of rest or of uniform motion in a straight line, so that the former is just a special case of the latter. he opined that bodies at rest stay at rest and bodies in motion stay in uniform motion, unless and until acted upon by some force. so motion need not be explained by the continuing force of a prime mover. he drew a graph of distance versus time for the rolling ball, which indicated that the distance traveled was a square of the time elapsed. he realized that the movement of a projectile involved a horizontal and a vertical component and guessed that the effects of falling were independent of the horizontal motion. he demonstrated that a projectile follows a path of a parabola, instead of a straight line, and that it too descends a distance which is the square of the time taken to fall. that is, a thrown object will strike the ground in the same amount of time as an object simply dropped from the same height. the telescope was invented in . the next year, galileo built a greatly improved telescope using a lens to look at the skies. he observed that the surface of the moon had mountains, valleys, and craters much like the earth, and was illuminated by reflected light. he noticed that the planet jupiter has moons orbiting it. he noted that the planet venus progresses through phases similar to those of the moon orbiting the earth and that it was very large with a crescent shape or very small with a round shape. this apparent change in size could only be explained if venus revolved around the sun, rather than around the earth. thus more credence was given to the copernican theory that the earth and all planets revolve around the sun, so galileo was denounced by the church. he argued against a literal interpretation of the bible. his observation that certain sun spots were on certain locations of the sun but changed over time suggested that the sun might be rotating. he observed that when air was withdrawn by a suction pump from the top of a long glass tube whose lower open end was submerged in a pan of water, the water rose to a height of feet and no higher. he had demonstrated that there was such a thing as a vacuum, which was above the level of the water. about , galileo invented the first thermometer by heating air at the top of a tube whose open end was in a bowl of water; as the top end cooled, the air contracted and water rose partway up the tube; the column of water rose or fell with every change of temperature. galileo invented the compound refracting microscope, which used more than one lens, about . galileo's book on the arguments for and against the copernican theory was unexpectedly popular when published in . the general public was so persuaded by the arguments that the earth revolved around the sun that papal authority felt threatened. so galileo was tried and convicted of heresy and sentenced to prison as an example to others who might question church doctrine, even though the seventy year old galileo recanted and some of the inquisition judges who convicted him believed the copernican theory and their decision did not assert the contrary. john napier, a large calvinist landholder in scotland who had built his own castle, did mathematics in his older years. he explored imaginary numbers such as the square roots of negative numbers. by , he had started and developed the theory of logarithms: the relationships among positive and negative exponents of numbers. this simplified calculations because the multiplication and division of numbers would be equivalent to addition and subtraction of their exponents. his table of logarithms, which took him twenty years to compile, was used in trigonometry, navigation, and astronomy. it reduced the enormous labor involved in trigonometric calculations. johannes kepler was a mathematician from germany who made his living as an astrologer. he was in contact with galileo by letter, as most scientists of europe were with each other. kepler was fascinated with perfect geometric shapes, which he tried to relate to celestial phenomenon. he discerned that the orbit of mars was not perfectly circular. he knew that the apparent path of the sun with respect to the constellation of fixed stars differed in speed at different times of the year. he opined that this showed that the speed of the earth revolving around the sun varied according to the time of year. then he measured the angles between the earth and the sun and the earth and mars as they changed through the martian year. he noted when the earth, mars, and the sun were on the same straight line. then he deduced the earth's true orbit, and from this the true orbits of the other planets. then by trial and error, he attempted to match this empirical data with regular mathematically defined shapes, until he discovered in that these paths were elliptical. also, the planets each move faster when they are nearer the sun and more slowly when they are farther from the sun so that in equal time intervals, a line from the planet to the sun will sweep out equal areas. this observation led him to opine that there is a force between the sun and each planet, and that this force is the same as that which keeps the moon in its orbit around the earth. thirdly, in , he found that the square of the time for each planet's orbit about the sun is proportional to the cube of that planet's mean distance from the sun, so that the farther planets orbit at a slower speed. he connected the earth's tides with the gravitational pull of the moon. kepler also confirmed that the paths of comets were governed by a law and were farther from the earth from the moon. this contradicted the church's explanation that what lies within the moon's orbit pertains to the earth and is essentially transitory and evil, while what lies beyond belongs to the heavens and is permanent and pure. in , renee descartes, a philosopher, mathematician, and scientist from france, invented analytic [cartesian] geometry, in which lines and geometric shapes can be described by algebraic equations and vice-versa. an algebraic equation with two unknowns, or variables, could be represented as a shape on a coordinate system in which each point is represented by a pair of numbers representing distances from the two axis lines. he started the convention of representing unknown quantities by x, y, and z and known quantities by a, b, and c. so, for instance, a circle with center at point , and a radius of was represented by the equation: (x- ) squared + (y- ) squared = . all conic sections, e.g. ellipses, parabolas, and hyperbolas, could be represented by equations. analytic geometry aided in making good lenses for eyeglasses. the glass was first manufactured with attention to quality. then, after it cooled and solidified, the clearest pieces were picked and their surfaces ground into the proper curvature. descartes pioneered the standard exponential notation for cubes and higher powers of numbers. he formulated the sine-law of refraction, which determines in general the way a light ray is deflected, according to the density of the media through which it passes. this explained why a rainbow is circular. in , he described the universe in terms of matter and motion and suggested that there were universal laws and an evolutionary explanation for such. he opined that all effects in nature could be explained by spatial extension and motion laws that ) each part of matter retains the shape, size, motion, or rest unless collision with another part occurs; ) one part of matter can only gain as much motion through collision as is lost by the part colliding with it; and ) motion tends to be rectilinear. these ideas did not correlate with the biblical notion of the creation of the universe by god in seven days, so descartes feared persecution by the church. descartes believed in a good and perfect god, and thought of the world as divided into matter and spirit. the human mind was spirit and could exist outside the human body. the human mind had knowledge without sense experience, e.g. the truths of mathematics and physics. ideas and imagination were innate. his observation that sensory appearances are often misleading, such as in dreams or hallucinations, led him to the conclusion that he could only conclude that: "i think, therefore i am." he rejected the doctrine that things had a proper behavior according to their natures, e.g. the nature of acorns is to develop into oak trees. as an example of erroneous forming of conceptions of substance with our senses alone, he pointed out that honeycomb has a certain taste, scent, and texture, but if exposed to fire, it loses all these forms and assumes others. he expressed that it was error to believe that there are no bodies around us except those perceivable by our senses. he was a strong proponent of the deductive method of finding truths, e.g. arguing logically from a very few self- evident principles, known by intuition, to determine the nature of the universe. christian huygens, a dutch physicist, used the melting and the boiling point of water as fixed points in a scale of measurements, which first gave definiteness to thermometric tests. in william gilbert, son of a gentleman, and physician to queen elizabeth, wrote a book on terrestrial magnetism which founded the science of electricity. he cultivated the method of experiment and of inductive reasoning from observation and insisted on the need for a search for knowledge not in books but in things themselves. he showed that the earth was a great magnet with a north pole and a south pole, by comparing it to loadstones made into spheres in which a north and south pole could be found by intersecting lines of magnetism indicated by a needle on the stone. the vertical dip of the needle was explained by the magnetic attraction of the north pole. he showed how a loadstone's declination could be used to determine latitude at sea. he showed how the charge of a body could be retained some time by covering the body with some non-conducting substance, such as silk. he distinguished magnetism from electricity, giving the latter its name. he discovered that atmospheric conditions affected the production of electricity, dryness decreasing it, and moisture increasing it. he expounded the idea of copernicus that the earth revolves around the sun in a solar system. however, the prevailing belief was still that the earth was at the center of the universe. there was much mining of coal, tin, copper, lead, and iron in the s. coal was transported from the coal pits down to the rivers to be loaded onto ships on coal wagons riding on wooden rails. the full coal cars could then be sent down by gravity and the empty wagons pulled up by horses. sheet metal, e.g. lead, was used for roofing. coal was much used for heating houses, and for laundry, cooking, and industrial use, such as extraction of salt, soap boilers, and manufacture of glass, bricks and tiles for buildings, anchors for ships, and tobacco pipes. it was used in the trades: bakers, confectioners, brewers, dyers, sugar refiners, coopers, starch makers, copper workers, alum makers, and iron workers. in the haberdashers, who sold imported felt for hats, got a charter of incorporation. a tapestry factory was established in . flax-working machines came into existence. as attorney general, edward coke was impassioned and melodramatic. he once described the parts of the penalty of treason as follows: being drawn to the place of execution reflected the person's not being worthy any more to tread upon the face of the earth; being drawn backward at a horse tail was due to his retrograde nature; being drawn head downward on the ground indicated that he was unfit to breathe the common air; being hanged by the neck between heaven and earth indicated that he was unworthy of either; being cut down alive and his privy parts cut off and burnt before his face indicated he was unworthily begotten and unfit to leave any generation after him; having his bowels and inners taken out and burnt indicated he had inwardly conceived and harbored such horrible treason; his head cut off, which had imagined the treason, and his body to be quartered and the quarters set up to the view and detestation of men a prey for the fowls of the air. coke was subsequently elevated to the position of chief of common pleas and then to chief of the king's bench. but there coke propounded a doctrine of the supremacy of the law over the king as well as over parliament. for instance, coke would not agree to stay any case in which the king had a concern in power or profit, to consult with him. but the other eleven justices did agree. since james i believed in the divine right of kings, he therefore dismissed coke from his position as chief justice of the king's bench. james even believed that he could suspend any law for reasons known only to him and issue proclamations that were not limited to the reinforcement of old laws, but made new offenses with punishment of fine and/or imprisonment. coke then became a member of parliament and led the commons, where he exalted the authority of parliament vis a vis the king; that is, the king could not make any changes in law, religion, or taxation without consent of parliament. james arrested coke and two other members of the commons and put its leader john pym under house arrest for their outspoken opinions against the king's intended alliance with catholic spain and intended taking of a spanish wife. because of the deadlock that developed between the king and parliament, certain matters could not be addressed by legislation and were left to be decided judicially. this made judicial review important. james vastly increased the number of peerages, selling many, for example for , pounds. since there was a tacit understanding that members of parliament would not accept remuneration, this restricted eligibility for membership to the rich. the house of commons was composed mostly of attorneys, merchants from the large towns, and country gentlemen. the gentry members had pounds [ , s] annual income from land and the burgess members had pounds [ , s.] in addition to the two knights from every county (elected by men holding at least forty-shilling freeholds), four representatives from london, and one or two from every other borough (generally elected by the top business families), there was a representative from each of the two universities. for speaker, they always chose someone suggested to them by the crown. he decided who would talk and could hasten or delay bills, usually for the benefit of the crown. the clerk, a lifetime appointment of the crown, wrote out the bills and their amendments and kept track of proceedings. many in the commons were puritan in sympathy. in , the house of commons developed a committee system to avoid being presided over by the royally designated speaker. a committee could consist of all the members of the house of commons with an elected chairman. an increasing number of issues were discussed in committee before coming to the commons and the commons came to ratify readily what had been done in committee. by , there had developed in the house of commons an opposition to feudal tenures, purveyance, wardships, and impositions (special import and export duties on aliens set by the king without the consent of parliament that were supposed to be for the purpose of regulating trade instead of for revenue). there was also a call for free speech and an end to the king's habit at the end of parliament of imprisoning for a time those who had been too outspoken. the commons also asserted itself into foreign affairs by expressing an opinion against a treaty proposed by the king on which war could ensue. the treaty was abandoned. in london, organized groups such as the apothecaries, the skinners, and the grocers, were circulating printed statements of their cases to members of committees of the house of commons rather than just seeking out a friendly privy council member. in , the protests made to committeemen about monopolies sold by james frightened him into canceling many of them. he had made many grants against competition in violation of law. the right of the commons to expel a member was asserted by the expulsion of a monopolist. by , the speeches of prominent members and the course of proceedings were copied by stationers and sold in a weekly news report. the king's privy council dealt constantly with foreign affairs, and also with the great companies, and problems arising such as gold leaving the country, the dutch ships increased efficiency in transporting goods, the declining market for english cloth, strikes in the mining industry, decaying harbor works, the quality of food and drink, the wrongs done to the poor, and above all, the general peace and order. they formed commissions to study situations and sent orders to justices of the peace on methods to address certain problems and to sheriffs to carry out certain acts. about , a group within the privy council began to concentrate on foreign affairs, especially "cabinet counsels", that is, with secret matters. james sold high offices of state to supplement his income. his income from customs had increased so much that it was now three times that from crown lands. the sheriff looked after crown lands and revenues in his county. he gathered the rents, the annuities, the stray animals, the deodands, the fees due to the king, the goods of felons and traitors. he was still a means of communication between the privy council and the county. he announced new statutes of parliament and proclamations by the king at the county courts and in the markets. he used posse comitatus to disperse riots. he was the functionary of the assize court, impaneling its juries, bringing accused men before it, and carrying out its penalties. he carried out elections of members of the house of commons. there were two high constables for each hundred. they were chosen by the justices of the peace at quarter sessions, and were usually small gentry or well-to-do yeomen. they were the intermediaries between the justices and the petty constables. the petty constable was the executive official of the village. he was usually elected by the suitors to the leet court of the manor for a year. he might be a farmer, an artisan, a carpenter, a shoemaker, or many times a tradesman, a butcher, or baker. he often visited the alehouse to learn of any trouble in the making. he would intervene in quarrels and riots and tell the participants to desist in the king's name. if they didn't, he could call on all bystanders to help him "force a quiet". he had to lead the rioters and causers of injuries to others, hold them there until he could bring him before the nearest justice. he would inform the justice of plots to trespass or forcibly enter land to take possession. he saw to it that no new cottages were built in the villages without due authority. he supervised markets and inns. he reported lapses of care for apprentices by their masters to the justice. at harvest time, he called upon all able bodied persons to assist and punished those who didn't respond by putting them in the stocks or fining them forty shillings. he arrested and whipped vagrants and sturdy rogues and sent them back to their place of birth through constables on the way. if a horse was stolen, he raised the hue and cry to all neighboring constables. he made inquiry into the paternity of the coming child of an unmarried pregnant girl to make him take responsibility for the child and pay her d. a week lest it fall into the responsibility of the village. in a town, he might have watchmen to help him see that the streets were peaceful at night. the constable assisted the justice of the peace, the high constable, and the sheriff. he pressed men into military service. he collected taxes for the sheriff and collected the money for purveyance, the money for the poor, maimed soldiers, and various kinds of prisoners, which the parish had to pay. he was often the spokesman for the village in village concerns, such as too many alehouses, brought to the attention of justices at quarter sessions. the constable and churchwardens together collected money for the parish, looked after the needy, and kept in close touch with the overseers of the poor, who cared for the sick and old, found work for the idle, took charge of bastards, apprenticed orphan children, and provided supplies for the workhouse. in the east india company was given a monopoly by the crown that was indefinitely long as long as it was profitable to the realm in the king's opinion. interlopers were to forfeit their ships and goods, one-half to the company and one-half to the crown. monopoly status made the company competitive with the dutch and portuguese monopoly companies. the crown received a gift or a loan from the company in return. at first, the company raised capital for each separate voyage. but voyages tried to undercut each other and rival factions squabbled over cargoes. so the company then raised a "terminable joint-stock" for a period of years. the first of these was issued in - and financed a fleet every year for four years. subscriptions were called in by yearly installments and dividends paid out yearly. the voyage of brought shareholders a profit equivalent to about % a year. by , the company operated thirty to forty "tall ships", many built in its own dockyards. these dockyards were so technologically advanced that they were daily viewed by visitors and ambassadors. here, besides wet and dry docks, there were timber yards, a foundry and cordage works for supplying the ships' hardware and a bakery and saltings for their provisioning. more than craftsmen were directly employed in the yard. overall the company was one of london' largest employers. in , the first charter of the virginia company was issued for trading purposes. it gave the settlers "all liberties, franchises, and immunities" they had in england. to oversee this colony, the crown appointed a council. virginia established the episcopal church by law. it became a joint-stock company in . but exports were few (timber, soap ashes, pitch, tar, and dyes) for several years, and then tobacco emerged as a source of profit. king james imposed a heavy duties on imported tobacco because it corrupted man's breath with a stinking smoke. in , the muscovy company, hired henry hudson to find a northwest passage through north america to the pacific ocean. life was difficult for puritan separatists, who wanted to separate from the established church. they were imprisoned and their houses were watched day and night for illegal meetings. in , after trying holland and when there was a depression in england, a few puritan separatists, along with other pilgrims, left for virginia in the mayflower, but landed in new england and founded plymouth colony. they were led by william bradford and william brewster, their spiritual leader. they planted fields and made friends with the indians. in , they secured a patent to the merchants and planters together for a voluntary joint-stock company in new england. later, it became the self-governing massachusetts bay colony. the canons of the church of provided for excommunication for anyone who propounded that the king did not have the same authority in ecclesiastical matters as the godly kings among the jews and christian emperors in the primitive church, that the church of england was not a true and apostolic church, that worship according the book of common prayer and administration of sacraments was corrupt or superstitious, or that other methods of the church were wicked, unchristian, or superstitious. church sanctuary was abolished for those accused of criminal offenses because it had been abused by thieves paying their rent by thieving at night. it remained available to those accused of civil offenses. - the law - churchwardens of every parish shall oversee the poor in their parish. they shall, with consent of the justices of the peace, set to work children whose parents cannot maintain them and also set to work married or unmarried persons who have no trade and no means to maintain themselves. churchwardens shall tax every inhabitant, including parson and vicar and every occupier of land and houses as they shall think fit. there will be a convenient stock of flax, hemp, wool, thread, iron and other necessary ware and stuff to set the poor on work. there will be competent sums of money for the relief of the lame, impotent, old, blind, and others not able to work, and also for the putting out of children to be apprentices. child apprentices may be bound until years of age or until time of marriage. they shall account to the justices of the peace for all money received and paid. the penalty for absence or neglect is s. if any parish cannot raise sufficient funds, the justices of the peace may tax other nearby parishes to pay, and then the hundred, and then the county. grandparents, parents, and children of every poor, old, blind, lame, or impotent person not able to work, being of sufficient ability, shall at their own charge, relieve and maintain every such poor person in that manner and according to that rate as justices of the peace of that county determine, or forfeit s. per month. two justices of the peace may commit to gaol or house of correction persons refusing to work and disobedient churchwardens and overseers. the overseers may, with the consent of the lord of the manor, build houses on common or waste land for the poor at the expense of the parish, in which they may place more than one family in each houses. every parish shall pay weekly - d. toward the relief of sick, hurt, and maimed soldiers and mariners. counties with more than fifty parishes need pay only - d. the county treasurer shall keep registers and accounts. soldiers begging shall lose their pension and shall be adjudged a common rogue or vagabond subject to imprisonment and punishment. sheriffs summoning defendants without a writ shall pay s. and damages to the defendant, and s. to the king. persons stealing crops from lands or fruit from trees shall be whipped. since administrators of goods of people dying intestate who fail to pay the creditors of the deceased often can't pay the debts from their own money, the people (who are not creditors) receiving the goods shall pay the creditors. every person shall receive the holy communion in church at least once a year or forfeit pounds for the first year and pounds for the second year, and threescore pounds for every year after until he takes the said sacrament. no person convicted of catholicism may practice the common law as a counsellor, clerk, attorney, or solicitor, nor may practice civil law as advocate, or proctor, nor shall be justice, minister, clerk, or steward in any court, nor practice medicine, nor perform as apothecary, nor be officer in a town, in the army, or navy, or forfeit pounds. nor may they be administrators of estates, or have custody of any child as guardian. nor may they possess any armor, gunpowder, or arms. nor may anyone print or import popish books rosaries, or forfeit s. no merchant may dress black rabbit skins, nor export them, unless dressed by skinners and bought from them because the skinners have been thus deprived of their livelihoods to their impoverishment throughout the realm. beer may be exported when malt is at s. per quarter because exporting beer instead of barley and malt will ( ) increase the export tax to the king, ( ) increase income for coopers and brewers, and ( ) provide more jobs in transporting beer, which is more voluminous, to the great comfort of the port towns. spawning and growing fish in harbors may not be taken by any nets or weirs because this practice has hurt fishermen and the realm. london may make a trench to bring water to the north part of the city and shall compensate the owners of lands by agreement with them of an amount or an amount determined by commissioners. actors profaning god, jesus, or the holy ghost on stage are to be penalized s. no one shall sell beer or ale to an unlicensed alehousekeeper because abuses there have become intolerable. every person convicted of drunkenness shall be penalized s. or else placed in the stocks for six hours, because the loathsome and odious sin of drunkenness has grown into common use lately and it is the root of many other sins, such as bloodshed, stabbings, murder, swearing, fornication, and adultery, and is detrimental to the arts and manual trades and diverse workmen, who become impoverished. offenders convicted a second time shall be bound with two sureties to the sum of s. no person at least years of age may be naturalized or restored in blood after being attainted unless he takes the sacrament and the oath of supremacy [of the king over the church of england], and oath of allegiance [to the king]. money given by will for the apprenticeship of poor children shall be managed by incorporated towns and unincorporated parishes. masters receiving such apprentices shall become bound with sufficient sureties. houses of correction shall be built in every county. lewd women, having bastards, chargeable to the parish, shall be committed to the house of correction to be punished and set to work for one year. persons deserting their families shall be deemed incorrigible rogues and punished as such. persons such as sorters who purloin or embezzle wool or yarn delivered to them by clothiers and the receivers thereof, knowing the same, shall recompense the party grieved or else be whipped and set in the stocks. all hospitals and abiding places for the poor, lame, maimed, and impotent persons or for houses of correction founded according to the statute of elizabeth shall be incorporated and have perpetual succession. only lands and hereditaments paying rents to the crown within the last sixty years shall be claimed by the crown; the title of all persons and corporation who have enjoyed uninterruptedly against the crown for the last sixty years are confirmed against the crown. a seminal patent-protection law was passed in . it stated that all monopolies to any person or persons, bodies politic or corporate for the sole buying, selling, making, working, or using of anything within the realm are void. this does not include london or towns. parties aggrieved by such may recover treble damages in the superior courts, with double costs. excepted are existing patents, for years or less, for new inventions and for future patents for years or less. excepted also are patents for printing or making saltpeter, gunpowder, shot or ordinance, etc.; patents concerning allum mines or newcastle coal or glass making or export of calves' skins or making smalts [deep-blue pigment or glass] or melting iron ore; grants of office; and licenses for taverns. because benefit of clergy is not allowed to women convicted of felony by reason whereof many women suffer death for small causes, any woman convicted for the felonious taking of any money, goods or chattels greater than d. and less than s. other than burglary or robbery on the highway or from the person of any man or woman without their knowledge, shall be branded and marked in the hand upon the brawne of the left thumb with a "t" and imprisonment, whipping, stocking, or sending to the house of correction for a year or less. no one may take more than % interest on loans because % has caused many, including gentry, merchant, farmer, and tradesman, to sell their land and forsake their trade to pay their debts. mothers concealing the death of a bastard baby shall suffer as for murder, unless one witness proves the child was born dead. papists running a school must forfeit s. a day for such. anyone conveying a child beyond the seas to be educated in popery may not sue in the courts, may not hold any office, and shall forfeit pounds and all lands. but the child returning may have his family lands restored to him if he receives the sacrament of the lord's supper in the established church after reaching years of age. in it was decided that it was not necessary to prove witchcraft caused the death of a person for there to be punishment for it. all that was necessary now was the practice of witchcraft. the punishment was death by hanging. also, consulting or feeding an evil spirit was felony. as attorney general, coke introduced the crime of "seditious libel" in a case before the star chamber in . these written slanders or libels were viewed as incitements to disorder and private vengeance. because the tendency to cause quarrels was the essence of the crime, the truth of the libel was not a defense, but might be an aggravation of criminality. edward coke, former chief justice of both the court of common pleas and court of the queen's bench, wrote his reports on court cases of all kinds through forty years and his institutes on the law, in which he explained and systemized the common law and which was suitable for students. this included a commentary and update of littleton, published in ; old and current statutes; a description of the criminal law; and lastly an explanation of the court system, the last two published in . coke declared that "a man's house is his castle". coke waged a long battle with his wife over her extensive property and the selection of a husband for their daughter. in his institutes, he described the doctrine of coverture as "with respect to such part of the wife's personality as is not in her possession, as money owing or bequeathed to her, or accrued to her in case of intestacy, or contingent interests, these are a qualified gift by law to the husband, on condition that he reduce them into possession during the coverture, for if he happen to die, in the lifetime of his wife, without reducing such property into possession, she and not his representative will be entitled to it. his disposing of it to another is the same as reducing it into his own possession." he further states that "the interest of the husband in, and his authority over, the personal estate of the wife, is, however, considerably modified by equity, in some particular circumstances. a settlement made upon the wife in contemplation of marriage, and in consideration of her fortune, will entitle the representatives of the husband, though he die before his wife, to the whole of her goods and chattels, whether reduced into possession or not during the coverture. ... a settlement made after marriage will entitle the representative of the husband to such as estate in preference to the wife. ... a court of equity will not interfere with the husband's right to receive the income during the coverture, though the wife resist the application." - judicial procedure - defendants may not petition to remove a case to the westminster courts after a jury is selected because such has resulted in unnecessary expense to plaintiffs and delay for defendants in which they suborn perjury by obtaining witnesses to perjure themselves. in , by the writ of quo warranto, a government office or official could be made to explain by what right he performed certain acts. james i asserted an authority to determine the jurisdiction between the various courts. the court of high commission heard mostly matrimonial cases, but also moral offences both of clergy and laity, and simony, plurality, drunkenness, and other clerical irregularities. the star chamber court still was primarily directed against force and fraud and defended the common people from over-mighty lords and over-pliable justices of the peace, for instance by deterring enclosure. it also enforced monopolies. however, there was a growing tendency for king james, who sat on it, to abuse its power with high fines. a lord accused with foul language by a huntsman of following hounds of a chase too closely threatened to use his horse whip on the huntsman's master when the huntsman threatened to complain to his master. the lord was fined , pounds. james' council used torture to obtain information from accused felons about possible conspiracies against him. the ordinary administrative court of first instance is formed by the single justices of the peace, who issue orders regarding public safety, order, public morals, health, the poor, highways, water, fields, forests, fisheries, trade, building, and fire, and particularly begging and vagrancy as well as regulations of wages, servants, apprentices, and day laborers. for more important resolutions, the special sessions of the justices of the peace of a hundred for a court of intermediate instance and appointed overseers of the poor. all justices of the peace were present at the quarter sessions, which were held at least four times a year, and are primarily a court of appeal from penal sentences, but also make the county rate, appoint county treasurers and county prison and house of correction governors, regulate prices and wages, settle fees of county officials, grant licenses for powder mills, and register dissenting chapels. it heard appeals expressly allowed by statute. the central courts also heard appeals by writ of certiorari as to whether an administrative act was in accordance with existing law, whether the court is competent, and whether the administrative law has been rightly interpreted. this writ of certiorari ceased in the s. justices of the peace who have the power to give restitution of possession to tenants of any freehold estate of their lands or tenements which have been forcibly entered and withheld, shall have like power for tenants for term of years, tenants by copy of court roll, guardians by knight service, tenant by elegit statute merchant and staple of lands or tenements. the justices of the peace were chosen by the crown, usually by the chancellor. the qualifications were residence in the county, suitability of moral character, religious uniformity, and the possession of lands or tenements with twenty pounds a year. they were almost exclusively country gentlemen, except in the towns. in the corporate towns, the mayor, bailiff, recorder, and senior aldermen were ex officio [by virtue of the office] justices of the peace. their main duty was to keep the peace. if a justice heard of a riot in the making, he could compel individuals at the place to give bonds of good-a-bearing and cause a proclamation to be made in the king's name for them to disperse. two justices or more had the authority to arrest the rioters and send a record of it to the assizes and to the privy council. if the riot had taken place before their arrival, they could make an inquiry by a jury and certify the results to the king and his council. the justices had men brought before them on many kinds of charges, on their own summons, or on initiative of the petty constable. they tried to draw these men into confession by questioning. after indictment, a person had the choice of a petty jury trial or paying a fine. the justices of the peace could insist upon presentment juries or surveys of offenses by local officers, but, without the institution of policemen, not many crimes were prosecuted because victims were unwilling or could not afford to initiate judicial action. their unwillingness was partly due to the severity of penalties, e.g. death for the theft of over s. and whippings and fines for misdemeanors. further, the offender was frequently a neighbor with whom one would have to live. mediation by the local constable often took place. when there an outbreak of lawlessness in an area, a commission might be set up especially for that area to enforce the law. assault cases were common in courts of assize and courts of quarter sessions. the quarter sessions were those of a number of justices of the peace held for a couple of days four times a year for the more important cases in the jurisdiction of the justices of the peace. assault was violence or threat of imminent violence. fines were graduated according to the means of the offender, who was usually bound over to keep the peace. most involved offenders and victims who were neighbors and included people of substantial standing in the village. also, a sizable minority were directed against local officers such as constables, bailiffs, or tax- collectors. three-fourths of all assize indictments and many quarter-sessions indictments were for various types of theft, including petty larceny, grand larceny, housebreaking, burglary, sheep stealing, and robbery. these offenses were mostly opportunistic rather than planned, except for london's underworld of professional thieves and the cutpurses of country markets and highway robbers on lonely roads. there were substantial peaks in theft in periods of harvest failure and industrial depression, especially by vagrants. but most of the poor never stole. the justices of the peace usually deferred to the learned justices of assize for cases of felony, murder, rape, highway robbery, and witchcraft. most homicides were the result of an impassioned argument leading to blows inflicted by nearby commonplace items picked up and used as weapons. only % of homicides were within the family. men were still declared outlaw if they failed to come to court after repeated summons. the lord keeper regularly advised the assize justices, before each circuit departure, to relieve the poor, supply the markets, maintain the roads (which were frequently impassable in winter for wagons or coaches), enforce church attendance, suppress superfluous and disorderly alehouses, and put down riots, robberies, and vagrancy, and in times of dearth, to suppress speculation in foodstuffs, prevent famine, and preserve order. in fact, the justices were most attentive to offenses which affected them as rate payers for the poor. these were offenses against cottaging laws (e.g. erection of cottages which lacked the statutory four acres of land), harboring of "inmates", disputes of settlement of paupers, bastardy, vagrancy, church nonattendance, and above all, disorderly alehouses. alehousing had been a well- established means of poor employment since the s, so it was hard to enforce licensing laws. further, alehouses were the centers of social life for the common people; both women and men met their friends there. if an attorney or solicitor delays his client's suits to work his own gain or over charges his client, the client can recover his costs and treble damages and the attorney and solicitor shall be disbarred. none may be admitted to any court of the king but such as have been brought up in the same court or is otherwise well-practiced in soliciting of causes and has been found by their dealings to be skillful and honest. an attorney who allows another to use his name shall forfeit shillings and be disbarred. offenders shall pay the charge of their own conveyance to gaol or the sum shall be levied by sale of their goods so that the king's subjects will no longer be burdened thereby. plaintiffs' costs shall be paid by the defendants where there is a judgment against the defendant in all actions in which the plaintiff is entitled to costs on judgment for him, to discourage frivolous and unjust suits. by , chancery could order injunctions to stop activities. in slade's case of , the court of the queen's bench held that assumpsit may be brought in place of the action of debt. so assumpsit supplants debt for recovering liquidated sums and is then called "indebitatus assumpsit". a statute of gave rights for adverse possession. it provided that all writs of formedon [right to land by gift of a tail] in descender, formedon in remainder, and formedon in reverter for any manors, lands, tenements, or hereditaments shall be sued within twenty years, for the quieting of men's estates and avoiding of suits. in default thereof they shall be excluded from such entry except children under years, women-covert, non compos mentis, imprisoned or overseas shall have an additional years after their disability ceases if the years have expired. the limitation for bringing actions on the case (except slander), account, trespass, replevin, debt, detinue for goods and chattels and the action of trespass, quare clausum fregit [damages for unlawful entry on land], is within years; for trespass of assault, battery, wounding, imprisonment is within years; and for actions upon the case for words is within years. the trial of sir walter ralegh in began a call for a right to confront and question one's accusers. before trial, privy counselors who in theory sat as impartial justices, cross-examined ralegh in prison. with a carefully selected jury present, the trial began with reading of the indictment, which ralegh had not yet seen. he was charged with treason in plotting with catholic spain to put arabella stuart on the throne. arabella was to write to spain promising peace, toleration of catholics in england, and direction by spain in her marriage choice. he pled not guilty and took no exception to any jurors, stating that he knew them all to be honest men. next, attorney general edward coke, his enemy and rival, and he engaged in a debate about who was right, with coke outright bullying him. coke then produced a signed confession by lord cobham that implicated him in the alleged conspiracy and accepting , crowns for his part. ralegh was given permission to speak. he said that cobham had retracted his confession. he ridiculed the idea that he would betray england to spain for gold after fighting against spain, including risking his life three times, and spending , pounds for the defeat of spain. he pointed to a treatise he had written to the king on the present state of spain and reasons against peace. then there was a discussion on the validity of cobham's confession. cecil gave an oration of ralegh. coke gave a speech. ralegh asked to have his accuser brought before him face to face. he cited law that two witnesses were necessary for a conviction for treason. chief justice popham replied that only one witness was necessary under common law, which applied to his case, and that the trial was properly by examination of the defendant. coke added that it would be improper to call cobham because he was a party. then coke surprised ralegh with a letter from cobham stating that ralegh had asked cobham to procure him an annual pension of pounds from spain for disclosing intelligence. ralegh acknowledged that a pension was offered, but denied that he had ever intended to accept it. he admitted that it was a fault not to inform authorities of this offer. the jury deliberated for fifteen minutes and returned with a verdict of guilty. the chief justice delivered the sentence for treason: drawing, hanging, disembowelling, beheading, and quartering. the whole trial was not so much to access guilt, but to show the general public that the person was guilty. church courts were revived after a period of disuse. they could annul an unconsummated or legally invalid marriage (e.g. consanguinity, impotence, a witnessed precontract to marry) and order judicial separations in case of adultery, cruelty, or apostasy. annuled marriages made a person's children illegitimate. an action at common law for "criminal conversation" [adultery] with the plaintiff's spouse or for assault and battery could result in an order for separation. but only a private statute of parliament could grant a divorce, which allowed remarrige. it was granted in only a few cases and only to the very wealthy. church officials spied upon people's conduct to draw them into their courts and gain more money from the profits of justice. in , edward coke, chief justice of the court of common pleas, decided that the statute giving the royal college of physicians power to imprison and fine those practicing without a license was invalid and unenforceable because it gave the college half of each fine awarded, which was a conflict of interest with its role as an adjudicator. coke said that a maxim of the common law was that no man ought to be judge in his own cause. by this decision, he asserted a court supremacy over parliament with respect to the validity of statutes. he opined that the courts should not only be independent of the crown, but should act as arbiter of the constitution to decide all disputed questions. in his words, "when an act of parliament is against common right and reason, the common law will control it and adjudge such act to be void." justices still explained and in some degree interpreted legislative acts of parliament as they had since the s, but their right to do so was coming into question and was slowly lost. female scolds were still dunked into water as punishment. only barristers, who were called to the bar after being in long residence in one of the inns of court, could practice before the king's court. attorneys and solicitors prepared cases for barristers and practiced before minor courts. the king appointed the justices, with the advice of the chancellor. james i often intimidated the justices to see things his way. the oath of a justice was: "well and and truly ye shall serve the king and his people. and ye shall take no fee or livery of none but the king, nor gift or reward of none that hath a do before you except it shall be meat or drink of small value, as long as the plea hangs before you. and ye shall do equal law and execution of right to all the king's subjects rich and poor, without regard to any person. ye shall counsel our sovereign lord the king in his need. and ye shall not delay any person of common right for the letters of the king or of any person or for any other cause ... so help you god." the courts of king's bench and common pleas, and the chancery all met simultaneously in westminster hall. throngs passed up and down the middle aisles between the courts, including booksellers, stationers, scriveners, and vendors of bread and hot meat. the hall was so cold that people kept on their coats and hats. the last court case concerning villeinage was in . - - - chapter - - - - the times: - - the entourage of charles i came to be called "cavaliers". they were named by their opponents for the spanish caballero who was a catholic who prosecuted protestants. their hair had long, curled, and flowing locks. they wore a broad-rimmed decorated hat. their fancy jackets and breeches were loose. boots were wide and folded over at the top. young men wore earrings and painted their faces. a lady wore her hair in ringlets on each side of her face. her dress was fitted at the waist, with a peaked bodice. it was low at the shoulders with a scoop neckline in front. she often wore much lace, especially at the neck down to the bust line. her outer dress and under-skirt that was revealed in front were full and made of satin and stiff silk or velvet. only hose of silk was worn at court. a majority of prosperous industrial towns and fee farmers, led sometimes by lords or old landed gentry were puritans. they dressed plainly and in somber colors such as black, grey, and buff, with no ornamentation except plain white collars and cuffs of linen rather than of lace. wool replaced silk and velvet. no jewelry was worn. the puritan women also wore long white aprons. the puritan men for a time had short-cut hair. the puritan- parliamentarians were given the name "roundheads" after the crop- headed london apprentices whose rioting had marked every stage of the conflict between king and parliament. the puritan women smoothed their hair back into little knobs and covered their hair and head with a white covering. both puritan men and women wore broad-rimed hats and plain shoes. the ordinary country man wore a felt hat, broadcloth coat, woolen trousers, hand-knitted worsted stockings, and plain, strong shoes. nine-tenths of the people were protestant. religion was a favorite and serious topic of discussion, even among the illiterate. on the whole, they were more inclined to salvation by grace than to salvation by good works. popular reading included guides for good manners such as "the rich cabinet" by thomas gainsford, and "youths behavior" translated from the french by francis hawkins. it advised not to sit with one leg on the other, but with the feet even; not to spit on one's fingers; and not to sniffle in the sight of others. books for ladies such as "delights for ladies" by hugh platt told them how to adorn themselves, tables, closets, and distillatories with beauties, banquets, perfumes, and waters. it taught preserving and comfit making, cooking, and housewifery. gervase markham wrote advice for men in "hobsons horse-load of letters", which addressed serious negotiations, private businesses, amorous accomplishment, wanton merriment, and the defense of honor and reputation. "a helpe to discourse" by w.b. and e.p. primed a man to meet company with suggested questions and answers, epigrams, riddles, and jests. in henry peacham's "the compleat gentleman" ( ), the model cavalier is portrayed in terms of horsemanship, tilting, sports, choice of companions, reserved and dignified conduct, good scholarship, and responsibility. this popular book was a guide to university, where there was a seven year course of classroom lectures. it advised conversation with men of the soundest reputation for religion, life, and learning, but recreation with those of the same rank and quality. first place was to be given to religion, so that the foundation of all studies would be the service of god. following in importance were: speaking and writing in english or latin (grammar, syntax, and rhetoric), astronomy, astrology, geography (whose authorities were pliny, strabo, and the pagan writers of the first century), chorography, mathematics, including arithmetic and geometry, poetry (reading, writing, and criticizing), music, including part-music, drawing, limning, painting, art history, exercise (riding, running, leaping, tilting, throwing, wrestling, swimming, shooting, and falconry), logic and disputation if related to one's intended profession such as the law, philosophy (plato and aristotle), and some medicine and botany. the flemish johann baptista van helmont demonstrated that metals dissolved in acid can be recovered through chemical means and enunciated the doctrine that each thing in nature has its own specific organization. richard brathwaite's "the english gentleman" portrays the sombre puritan who accepts the gospel of work. he is a staid and serious businessman. "matrimonial honour" by daniel rogers opined that for success, a marriage must be godly, with the parties equally religious, worshipping together in private and in public. a hasty or worldly marriage would bring repentance. the spouses should agree, but keep to their spheres. children should not be spoiled. large households were more or less self-supporting and were managed by their ladies. work included ordering wool, hemp, and flax; making cloth and dying it; dairy work; brewing; malting; baking; preserving wines; extracting oils; distilling perfume; and putting on banquets. couches were coming into use in parlors. the king and his court entourage settled for most of the year in whitehall instead of travelling around the country. the king let the public into hyde park for recreation. the city of london and westminster were still separate, but a mass of hovels was springing up in between them. the water carrier was still active and the night transport of sewage necessary. in certain areas there lived in crowded houses, those wanted for minor offenses, small thefts, and debt. bailiffs did not dare venture into them because the inhabitants hid and defended each other unless the offense was a major one. the penalty for stealing even small sums was still death. indigo jones was the first architect of consequence. he had studied in italy and designed and built the banqueting house at whitehall in london in . it had classical proportions and nice shaping and dressing in stone. he was now an arbiter of taste for the king charles and his queen and built many structures for them, including the queen's chapel at st. james palace and her bedroom in the queen's hose in greenwich. all over london and the country he and his pupils built many classical buildings, including houses, churches, stables, lodgings, out-buildings, staircases, galleries, watergates, and archways. they stood in stark contrast to the tudor buildings around them. in the , jones started town-planning in london with covent garden fruit and vegetable market with terraced houses around a central piazza surrounded by open arcades with a tuscan church at one end. in , a man from the suburb of hackney introduced a line of coaches rented at s. per hour. they soon became very popular. a large part of england was rebuilt as yeomen expanded their houses and others lower in rank replaced mud and wood hovels with brick and stone cottages. a separate kitchen appeared. the ground floors are boarded over to create bedrooms. permanent stairs replace ladders. glass appears in windows. glass and crockery replace wood and pewter, chairs replace benches. knives and forks become common. about began travel between towns by covered wagons called stage coaches. they carried passengers and goods and stopped at inns for stabling and repairs. work was begun in to make canals that would make waters run to the sea. barges on canals were the most efficient mode of transportation. a barge could carry tons on a canal and only on a river. a single horse could haul a wagon on iron rails with tons, on a soft road with tons, and on his back / of a ton. real wages, which had been falling, reached their low point and the gap between the poor and others widened. there were depressions from - and from to about , which called for royal proclamations for the relief and distress, especially among the poor. the book of orders, for the relief of distress in earlier reigns, was to be reissued. the assize of beer and bread maintaining quality, prices, weights, and measures, was to be duly kept. hoarding of foodstuffs was to be punished. fish days and lent were to be observed to maintain the fishers. abstaining from suppers on fridays and on the eves of feasts was ordered in all taverns and commended to private families. city corporations were to give up their usual feasts and half the charge given to the poor. foreign ships were not to be victualled for long voyages. the revised book of orders also covered the regulation of beggary, the binding of apprentices, and the general relief of the poor. all magistrates were to enforce the rules and raise special rates from all the parishes, the richer of these to help the poorer. a new trend of spring-sown crops led to better crop balance and reduced the risks of scarcity in a bad year. but the economy was still volatile. there were riots in london in - from a complete breakdown in political consensus, the factions being the royalist city elite versus the middling and lesser merchants and craftsmen. in , the clock makers broke away from the control of the blacksmiths. the gunmakers also broke away from the blacksmiths. the tinplate workers broke away from the ironmongers. "searching" for bad cloth became more difficult as the industry became more diversified. for instance, a new machine called a gig- mill did the work of many hand finishers. in , charles issued a commission for the reformation of the cloth industry with minute directions for the manufacture of cloth. but there were many disagreements over the details of manufacture and reform was difficult to enforce. by the s, many parishes had a resident intellectual for the first time. the parish priests came from gentry, upper yeomanry, urban tradesmen and clerical families. they were educated and highly learned. they had libraries and were in touch with contemporary religious debates. they saw their role primarily as pastoral care. many wanted to improve the religious knowledge and moral conduct of their parishioners. puritan influence deepened as they forbade dancing, games, minstrels, and festivals. they punished superstitious conduct. they initiated prosecutions in church courts for sexual lapses and drunkenness. the church court had little coercive power and its punishments were restricted to penance or excommunication. many puritan sects espoused equality for women. by the s women were preachers, e.g. in the baptist and anabaptist religions and, until , prophetesses. these sects were mostly composed of the lower echelons of society. the poor people did not respond to sermons as did the well-to-do. nor were they as involved in church activity, attending church only for marriages, baptisms, and funerals. charles i not only believed in the divine right of kings and was authoritarian; he was the ultimate autocrat. he had an unalterable conviction that he was superior to other men, who were insignificant and privileged to revolve around him. he issued directives to reverse jury verdicts. parliamentarians oliver cromwell and other educated men opposed this view. the commons voted not to grant charles the usual custom-dues for life, making it instead renewable each year, conditioned on the king's behavior. charles dissolved parliament before this passed. he continued to take tonnage and poundage. he wanted money for war so he imposed many taxes, but without the consent of parliament. they included many of which had fallen into disuse. he imposed a compulsory "loan" on private individuals, which the courts held was illegal, and imprisoned, those who refused. bail was denied to these men. simpler people who refused were threatened with impressment into the navy, which included being landed on shore to fight as marines and soldiers. they sought to revive the old writ of habeas corpus [produce the body] to get released, but to no avail. the old writ had been just to bring to court those persons needed for proceedings, but coke in had cited the writ with a new meaning "to have the body together with the cause of detention". charles billeted unpaid and unruly soldiers in private homes, which they plundered. it was customary to quarter them in inns and public houses at royal expense. martial law was declared and soldiers were executed. but the citizens did not want martial law either. the magna carta got attention as a protector of basic liberties. both attorneys and laymen read "the pastyme of people" written by john rastell in , which described the history of the magna carta from to . also read was the "great abridgment" of the english law written by rastell in , and coke's volume of his institutes which dealt with the magna carta, which the crown took to prevent being published until , when parliament allowed it. broad-scale pamphleteering turned england into a school of political discussion. oxford university favored the established church and cambridge university was puritan. the estates of the members of the house of commons were three times the extent of the members' of the house of lords. bishops' estates had diminished considerably because of secularization. the members of the house of commons were elected by the people. for these reasons, the house of commons asserted a preeminence to the house of lords. the house of commons drew up a petition of right in , which expanded upon the principles of magna carta and sought to fix definite bounds between royal power and the power of the law. it protested the loans compelled under pain of imprisonment and stated that no tax or the like should be exacted without the common consent of parliament. it quoted previous law that "...no freeman may be taken or imprisoned, or be disseised of his freeholds or liberties, or his free customs, or be outlawed or exiled; or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land" and that "...no man of what estate or condition that he be, should be put out of his land or tenements, nor taken, nor imprisoned nor disinherited, nor put to death without being brought to answer by due process of law". it continued that "... divers of your subjects have of late been imprisoned without any cause showed; and when for their deliverance they were brought before your justices by your majesty's writs of habeas corpus, there to undergo and receive as the court should order, and their keepers commanded to certify the causes of their detainer, no cause was certified, but that they were detained by your majesty's special command, signified by the lords of your privy council, and yet were returned back to several prisons, without being charged with anything to which they might make answer according to the law." it also protested the billeting of soldiers in private houses and martial law trying soldiers and sailors. if these terms were agreed to by the king, he was to be given a good sum of money. since he needed the money, he yielded. he expected tonnage and poundage for the navy for life, as was the custom. but he got it only for one year, to be renewable yearly. the king agreed to the petition, quietly putting his narrow interpretation on it, and it was put into the statute book. in parliament distinguished between treason to the king and treason to the commonwealth. the chief justice held in that acts of parliament to take away the king's royal power in the defense of his kingdom were void; the king may command his subjects, their persons, their goods, and their money and acts of parliament make no difference. but the people refused to pay these taxes. charles thought of more ways to obtain money and disregarded his agreement to the petition of right. without the consent of parliament, he extended ship money to all the kingdom instead of just the ports. it was used to outfit ships for the protection of the coasts. hampden refused to pay it on principle and the courts ruled against him in the case of king v. john hampden and he was sent to prison. when distraints were tried, the common people used violence to prevent them. the bailiffs were pelted with rocks when they came to distrain. one man used his pitchfork to take back his steer being taken by the bailiff. if distraint were successful, people would refuse to buy the distrained property of their neighbors. charles revived the right of the crown to force knighthood on the landed gentry for a fee. charles sold monopolies in such goods as soap, leather, salt, wine, coal, and linen rags although they had been abolished in the last parliament of james. this made employment uncertain for workers and prices high for the public, and put masters in danger of loss of capital. fines were levied on people for the redress of defects in their title deeds. crown forest boundaries were arbitrarily extended and landowners near crown forests were heavily fined for their encroachments on them. money was extorted from london by an illegal proclamation by which every house had to pay three years' rental to the crown to save itself from demolition. but what incensed the people more than the money issue were the changes in the established church. high churchmen, called ritualists, enforced ceremonies offensive to puritan feeling in every parish. the centrally placed communion tables were to be placed at the east end within railings and called "altars", or "mercy seats" as if for mass. they were to be ornamented with crucifixes, images, conceits, books, candles and rich tapestries. bowing was to be done when approaching them. clergymen were to be called "priests" and their authority treated as divine. worship was to be done in prescribed forms and ritual with pomp and ceremony, including kneeling for communion. it was to be done in accordance with the romish breviars, rituals, and mass-books. rings were to be used in marriages and crosses used in baptisms. churches, fonts, tables, pulpits, chalices and the like were to be consecrated, thereby putting holiness in them. churches that did not do this but used unconsecrated or "polluted" articles were closed by interdiction. regard was to be had with regard to days, postures, meats, and vestments. the clergy was to wear supplices [white linen vestments flowing to the foot with lawn sleeves] and embroidered copes [vestment over the head]. a bishop wore a four- cornered cap, cope and surplice with lawn-sleeves, tippet (long, black scarf), hood, and canonical coat. churchwardens were to take oaths to inform against any who disobeyed. the law still required that all attend sunday sermons. but parishes had some control over who was their preacher, even though a minister could be put upon a parish by the bishops without the consent of the patron or people. by increasing the meager pay of a parish clergyman, they could chose one with a compatible theology or employ a lecturer from outside. the ritualists scolded clergymen for "gospel preaching" and suppressed puritan preaching in public meetings. preaching or printing matter concerning the controversy of free will versus predestination was forbidden. geneva bibles, which were popular among laymen, were prohibited from being imported. many were excommunicated for sitting instead of kneeling at communion. the clergy prohibited marriage if they liked by withholding their license, and they licensed marriages without banns. the ritualists encouraged certain sports to be played after church on sunday. the puritans protested vehemently to this because they wanted to strictly observe the sabbath. the puritans saw the high churchmen as wanting to return to the doctrine and customs they thought to be papist. the ritualists were absolutists in their political views and accepted the king's intervention in church matters. the ecclesiastical court of high commission enforced the edicts of the church, excommunicating those who did not conform and expelling clergymen who, for instance, did not bow at the name of jesus or wear the surplice. it was used against the puritans and imposed high fines and imprisonment for religious eccentricity and puritan preaching. charles supported the established church in this endeavor because it agreed that he had a divine right to rule. the universities and high churchmen were beginning to adopt the doctrine of free will over predestination. parliamentarian and puritan oliver cromwell and others feared this presaged a return to justification by works and the popish faith. in parliament, he spoke out against the tyranny of the bishops, whose offices he wanted abolished, and the elaborateness of church services. to avoid persecution, many puritans emigrated to virginia and new england. they were led by magistrates, country gentlemen, prominent businessmen, attorneys, and other professionals. in , the massachusetts bay colony was chartered at the instigation of john winthrop as a puritan refuge. its leaders led a migration of puritans organized to include five each of armorers, bakers, blacksmiths, carpenters, shoemakers, merchants; three each of clothiers, chandlers, coopers, military officers, physicians, and tailors; two each of fishermen, herdsmen, and masons; on tanner, and one weaver. the fare was five pounds and an applicant was interviewed to make sure he was a puritan. he got acres, or more for a larger family. but if he paid pounds into the common stock he received acres of land, plus more for each dependent. maryland was founded in as a haven for catholics, but its charter precluded a government-established religion. it was granted to lord baltimore to hold in free socage and was named after king james ii's queen, who was overtly catholic. catholics in england could practice their religion only in their homes and could not carry arms. as hostility grew, censorship of books and plays accelerated and the number of authorized printers was reduced in by decree of the star chamber. in s effective government control of the press collapsed. then there were many pamphlets and newspapers with all variety of interpretation of the bible and all sorts of political opinion, such as on taxation, law and the liberties of the subject, religion, land and trade, and authority and property. twenty-two pamphlets were published in and , in . in the canons of the church included a requirement for parsons to exclaim divine right of kings every year. the commons soon resolved that this was contrary to the fundamental laws and liberties of the realm. the short parliament of was dissolved soon because the commons demanded redress of its grievances. the long parliament of - requested by the house of lords was agreed to by charles because he still wanted money. in election of members to the long parliament, voters wanted to know where contenders stood on certain political issues. in this parliament, the commons ceased to agree on all issues and started to rely on majority rule. the house of commons was led by john pym, a middle class landholder with extensive commercial interests. the commons treated the king's refusal to act with them as a relinquishment of his power to parliament. when it met at the long parliament, pym expressed the grievances of the king's actions against the privileges of parliament, against religion, and against the liberties of the subjects. specifically, he decried the disregard of free speech and of freedom from prosecution afterward, and the arbitrary dissolution of parliament. secondly, he alleged popery had been encouraged and the ecclesiastical jurisdiction enlarged. thirdly, he protested the patent monopolies given to favorites to the detriment of the buying public, the imposition of ship money levies beyond the need of national defense and without the consent of parliament, the revival of the feudal practice of imposing a fine for refusal to accept a knighthood with its attendant obligations, the enlargement of the king's forests and driving out from hence tenants with lucrative holdings, extra judicial declarations of justices without hearing of counsel or argument in many criminal matters, and the abuses of the prerogative courts in defending monopolies. parliament's assertion into religious matters and foreign affairs was unprecedented, those areas having been exclusively in the power of the king. the long parliament begun in removed many of the king's ministers and forbade clergy from sitting in parliament or exercising any temporal authority. it passed measures which were not agreed to by the king. it undid the lawless acts of the king and the court decision in the case of king v. hampden. ship money was declared illegal. the new concept that the present parliament should not be dissolved but by its own consent was adopted. the star chamber and court of high commission were abolished. the oath ex officio, an oath to answer all questions, was originally meant for facts at issue, but had been extended by these courts to opinions, beliefs, and religion and had led to abuses. the star chamber had been the only court which punished infractions of the kings' edicts, so now his proclamations were unenforceable. protection against self-incrimination was given by the provision that no person be forced "to confess or accuse him or herself of crime, offense, delinquency, or misdemeanor, or any neglect... or thing whereby, or by reason whereof, he or she shall or may be liable or exposed to any censure, pain, penalty, or punishment whatsoever, as had been the practice in the star chamber and the court of high commission. these measures were also adopted: no one may be compelled to take knighthood nor undergo any fine for not so doing. the forest boundaries are returned to their former place. all subjects may now import gunpowder; they may also make and sell gunpowder and import saltpeter. the root and branch petition of complained about pressure on ministers by bishops on threat of dismissal not to preach about predestination, free grace, perseverance, original sin remaining after baptism, the sabbath, doctrine against universal grace, election for faith foreseen, free-will against anti-christ, non- residents, or human inventions in god's worship. it also complained about the great increase of idle, lewd, and dissolute, ignorant and erroneous men in the ministry who wanted only to wear a canonical coat, a surplice, and a hood, bow at the name of jesus, and be zealous of superstitious ceremonies. it also complained about the swarming of lascivious, idle, and unprofitable books, pamphlets, play-books, and ballads, such as ovid's "fits of love", "the parliament of women", barn's "poems", and parker's "ballads". further it opposed the restraint of reprinting books formerly licensed without relicensing. it protested the growth of popery and increase of priests and jesuits, the strict observance of saints' days whereby large fines were imposed on people working on them, the increase of whoredoms and adulteries because of the bishops' corrupt administration of justice and taking of bribes, and the practice of excommunicating for trivial matters such as working on a holy day or not paying a fee. it further protested the fining and imprisoning of many people; breaking up men's houses and studies; taking away men's books, letters, and writings; seizing upon their estates; removing them from their callings; and separating them from their wives, to the utter infringement of the laws and of people's liberties. it complained that these practices caused many clothiers, merchants, and others to flee to holland, thus undermining the wool industry. it finally complained of the multitude of monopolies and patents, large increase of customs, and ship-money. many londoners signed this petition. the house of commons decided to forbid bowing at the name of jesus. when the house of lords disagreed with this, the house of commons claimed that it represented all the people and didn't need the concurrence of the house of lords. the house of commons ordered that all communion tables be removed from the east end of churches, that the railings be taken away, and all candles and basins be removed from it. further, all crucifixes, images of the virgin mary, and pictures of any of the trinity were to be demolished, which was done to even those in markets and streets. further, all bowing at the name of jesus or toward the east end of the church or toward the communion table was forbidden. all dancing or other sports on sunday was forbidden. enforcement was to be done by justices of the peace and mayors. but these orders never became statutes. enforcement of the law for not coming to church was not now regularly enforced, so catholics had a respite. rebellion of irish catholics against england and english protestants broke out in ireland in . parliament didn't trust the king with an army that he could use against themselves so it passed the following two measures expanding the navy and calling out the militia and naming certain persons to be lieutenants of each county. the admiral shall impress as many seamen as necessary for the defense of the realm. this includes mariners, sailors, watermen, ship carpenters, but no one over the age of or masters or masters' mates. if one hides, he shall be imprisoned for three months without bail. justices of the peace shall impress as many soldiers as the king may order for war in ireland. this is despite the right of a citizen to be free from being compelled to go out of his county to be a soldier because the danger from ireland is imminent. excluded are clergymen, scholars, students, those rated at a subsidy of land of three pounds or goods of five pounds, esquires or above, the sons of such or their widows, those under eighteen or over sixty years of age, mariners, seamen, and fishermen. the penalty for disobeying is imprisonment, without bail or misprise, and a fine of ten pounds. if an offender can't pay the fine, he shall be imprisoned a year more, without bail or misprise. the right to call out the county militia had been a prerogative of the crown, so the king issued a proclamation ordering the soldiers to ignore this order and obey him. so parliament declared this proclamation void. the king accused five leaders of parliament, including pym, of trying to subvert the government of the kingdom, to deprive the king of his regal power, to alienate the affections of the people toward their king, forcing the parliament to their ends by foul aspersions, and inviting the scots to invade england. in , the king entered parliament with soldiers to arrest these five. they had flown, but parliament was shocked that the king had threatened the liberties of parliament with military force. the citizens of london, in their fear of popery, rose in arms against the king, who left the city. both sides raised big armies. the goal of the parliamentarians was to capture the king alive and force him to concessions. when the parliamentarians took oxford in , they purged its faculty of royalists. - the law - from to these statutes were passed: no one shall engage in sports or any pastimes outside his own parish or bearbaiting, bullbaiting, interludes, plays or other unlawful pastimes inside his parish on sundays because such has led to quarrels and bloodshed and nonattendance at church. the fine is s. d. or if the offender does not have the money or goods to sell to pay, he shall be set in the public stocks for three hours. no carrier with any horse or wagon or cart or drover with cattle may travel on sunday or forfeit s. no butcher may kill or sell any victual on sunday or forfeit s. d. every innkeeper, alehousekeeper, and other victualler permitting a patron who is not an inhabitant of the area to become drunk shall forfeit s. or be place in the stocks for six hours. offenders convicted a second time shall be bound by two sureties to the sum of s. as of , a parent sending a child out of the country to go to a catholic school were to forfeit pounds, one half to the informer and one half to the king. the petition of right herebefore described was passed as a statute in . - judicial procedure - the star chamber decided cases as diverse as a case of subordination of witnesses, cases of counterfeiters of farthing tokens, and cases of apothecaries compounding ill medicines. it tried to keep down the prices of foodstuffs for the benefit of the poor; it repressed extortion and false accusations, and disbarred an attorney for sharp practices; it punished defamation, fraud, riots, forgery of wills; it forbade duels. a special virtue of its position was that it could handle without fear matters in which men of social or local influence might intimidate or overawe juries or even country justices. it punished a lord who caused records to be forged, unlawfully entered lands, and seized tithes. it disciplined a nobleman for drawing a sword on a lord hunting hare. in one of its cases, sir edward bullock, a knight wanting to enclose a common of a thousand acres threatened his neighbor blackhall when he would not sell his lands and rights. the knight hired a man to break down the hedges and open a gate that had been staked up, so that his neighbor's cattle would stray. he sued his neighbor three times for trespass, lost his cases, and threatened revenge on all the witnesses who testified against him. he had the house of one pulled down. the pregnant wife and a naked child were turned out and had to lie in the streets because no one dared to take them in, even when a justice so directed. the witness, his wife, and family took refuge in an unheated outbuilding in the winter. he and his wife and one child died there. the knight had another witness cudgeled so that she was black and blue from the waist up, and could not put on her clothes for a month. the knight threatened to set fire to the house of another witness, and sent his men to pull him out of doors and keep him prisoner for some hours. the star chamber imprisoned the knight and his men. the knight was fined , pounds and the men pounds each. the knight also had to pay one witness pounds in reparation to the surviving children of the family whose house had been pulled down. but the power of the star chamber was abused by king charles i. for instance, one lord was accused by another of calling him a base lord. the evidence was paltry. but he was fined eight thousand pounds, one-half going to the king. a lord who was accused of converting agricultural land to pasture was fined four thousand pounds. the lord was fined ten thousand pounds. a person who exported fuller's earth, contrary to the king's proclamation, was pilloried and fined two thousand pounds. a man who defaced a stained-glass window in a church was fined pounds and ordered to pay for a plain glass replacement. a man who became sheriff of a county and had taken the oath which bound him to remain in the county was elected to parliament and stood in opposition to the king on many matters. he was imprisoned for many years until he made a humble submission and had to pay a heavy fine. a london importer who was alleged to have said "that the merchants are in no part of the world so screwed and wrung as in england; that in turkey they have more encouragement" was fined , pounds for seditious and slanderous words against his majesty's happy government. a scottish minister circulated a book appealing to the parliament to turn out the bishops and to resist its own dissolution by the king. in it he called the bishops men of blood, anti-christian, satanical, ravens, and magpies, preying on the state. he was against kneeling at the sacrament and denounced the queen for her religion. he blamed the state for the death of citizens of a certain town by famine. for as he did "scandalize his majesties sacred person, his religious, wise, and just government, the person of his royal consort the queen, the persons of the lords and peers of this realm, especially the reverend bishops", he was fined , pounds, was to be unfrocked (which was done by the court of high commission), and was whipped, pilloried, one ear nailed to the pillory and cut off, his cheek branded, and his nose slit. then he was imprisoned for life, but only served ten years, being released by a statute of the long parliament. a puritan writer pyrnne wrote a book that included a condemnation of masks and plays, and all who took part, and all who looked on as sinful, pernicious, and unlawful. it opined that nero had attended plays and deserved to be murdered. since charles had attended plays and the queen had taken part in a mask, it was inferred that pyrnne meant them harm. his indictment alleged that "he hath presumed to cast aspersions upon the king, the queen, and the commonwealth, and endeavored to infuse an opinion onto the people that it is lawful to lay violent hands upon princes that are either actors, favorers, or spectators of stage plays". the justices saw in the book an attempt to undermine authority. the chief justice called the book a most wicked, infamous, scandalous, and seditious libel. pyrnne was sentenced to be degraded by oxford and disbarred by lincoln's inn, to be fined , pounds, to be pilloried and to have his ears cut off, and then to be imprisoned for life. three men who wrote attacks on the bishops and ecclesiastical courts, such as alleging that the bishops suppression of fasts and preaching had brought the pestilence upon the people and that the bishops had dishonored god and exercised papal jurisdiction in their own names, were each sentenced to , fine, the pillory, where their ears were cut off, and to life imprisonment. one, who had been convicted for libel before, was branded on both cheeks: "s.l." for seditious libeller. others printed similar material. in vain the star chamber limited the number of london printers to twenty, and made licensing stricter. these prisoners were set free by the long parliament. charles i intimidated justices to obey him in decision-making even more than james i. charles i so abused the power of the star chamber court that it was abolished by the long parliament and with it, the involvement of the king's council in civil and criminal cases. the regular church courts punished people for heresy, non- attendance at church, sexual immorality, working on the sabbath or a holy day, non-payment of tithes, and lending money at interest. the special ecclesiastical court, the court of high commission, was composed of clerics appointed by the king and decided cases of marriage annulment, alimony, adultery, married couples living separately, cruelty of husbands to wives, and habitual drunkenness. but it also took on cases of schismatics and extended its power over them to include staid and solid puritans, who uniformly believed that salvation was the only worthy earthly aim. acting on information attained through secret channels or from visitations, it would summon the accused, who was required to give, under oath, "full, true, and perfect" answers to broad and undetailed charges made by secret informants. refusal to take the oath resulted in commitment for contempt of court. if he denied the charges and fled, the court could hold the hearing without him. many fled out of the country or went into hiding in it. if the accused went to the hearing, he could not take an attorney with him. most of the issues involved clergy refusing to use the litany, to make the sign of the cross in baptism, to wear the surplice, or to publish the book of sports, and insistence on extempore prayer and preaching. other issues were clergy who from the pulpit inveighed against ship-money and unjust taxes, and spoke rudely against the bishops and tyrannical princes. one case is that of samuel ward, the town preacher of a large town, heard in . he neglected bowing or kneeling on coming to his seat in church and preached against the book of sports. he did not read the set prayers from the official book, but said prayers he had himself conceived. to this he replied that a parrot could be taught to repeat forms and an ape to imitate gestures. but his most serious offenses had to do with his utterances from the pulpit derogatory to the tenets and discipline of the church. he was accused of saying that he believed that congregations still had the right of election of all officers, including ministers. also, he allegedly said that in preaching on the christmas holidays he told his people "that in the following days they might do their ordinary business, intending to cross that vulgar superstitious belief, that whoever works on any of those twelve days shall be lousy". he allegedly warned his people to beware of a relapse into popery. ward was convicted of depraving the liturgy, tending toward schism, frightening the people, and encouraging the overthrow of all manner of government. he was removed from his position, deprived of his ministerial function, suspended and silenced during the king's pleasure. he was ordered to make submission and recantation both in court and in his church and to give bond for pounds. when he did not do this, he was sent to prison and lay there nearly four years, and died a few months later. in another case, a mrs. traske was imprisoned for at least eleven years for keeping saturday as her sabbath. many people were excommunicated and books censored for essentially political reasons. in , the king proclaimed that the common law courts could not intervene in ecclesiastical courts. the court of high commission was abolished by the long parliament. justices of the peace had general and quarter sessions, the latter of which were held four times a year with all justices of the peace attending. it was primarily a court of appeal from penal sentences. but it was also an administrative body to determine taxes and make appointments of officials and grant licenses for businesses. in , in distributing a deceased person's estate, the chancery court upheld a trust for an heiress which would not become her husband's property. at the request of parliament, the king had all justices serve during their good behavior instead of serving at the king's will, which had been the practice for ages. this increased the independence of the judiciary. the rack was used for the last time in before the long parliament met. it was used to torture a rioter before hanging. men were still pressed to death for failure to plead, pickpockets still executed for the first offence, and husband murderers still burned. - - - chapter - - - - the times: - - for four years, there was civil war between the king, backed generally by the upper class, the established church, and most of the gentry, against the parliamentarians, backed generally by middle class yeomen, town dwellers, some of the gentry, most of the great corporations, the city of london, the ports, the seamen, and the navy. oxford university was royalist, and cambridge university was puritan in sympathy. archery was not used, having become just sport by . flint-lock pistols, which relied on flint striking steel to ignite the powder, as well as swords were used by horsemen in the civil war. footmen were musketeers using a match lock with a cord boiled in vinegar as the match and dressed in leather doublets and an iron-pot headpiece, or pikemen with long wooden poles with spearheads of iron or steel and short swords, and dressed in armor. this was the last time armor was used. the parliamentarians wore orange scarves to distinguish themselves from their enemy. cromwell, who had a natural aptitude for military matters, selected for his troops, puritan zealots with a puritan code of behavior which included no drinking or swearing. he selected horsemen based on ability rather than social class. he was regarded as one of the leaders of the independents, who wanted total abolition of the monarchy and of the aristocracy. when made a leader of the new model army, cromwell dressed all his foot men in red with only the facings being regimental colors. the new model army had been assembled because there had been disagreement about policy among the members of parliament who held commissions. almost all members gave up their commissions. for their continued support, many wives and also prostitutes put on men's clothing and followed the troops. they nursed the wounded. those many wives who stayed at home pleaded and answered in court; petitioned to the house of commons, e.g. for release of debtors from prison, high taxes, lack of work, and arbitrary government; and made other public appearances. puritan and royalist newspapers printed the news at least once weekly. poet john milton pled for civil and religious freedom, freedom of social life, and freedom of the press. he stated: "give me the liberty to know, to utter, and to argue freely, according to conscience, above all liberties." the mayor and citizens of london were given authority in to fortify all highways leading to the city and levy a tax on inhabitants for this purpose. when london was deprived of coal during the war, trees and flowers again flourished there. officers and seamen in navy ships were authorized in to take one-third of all prize goods captured, the other two-thirds going to the state. parliament approved certain persons to set forth ships at their own expense to defend the realm in . they were allowed to keep any ships, goods, ammunition, or moneys they seized. saltpeter men were appointed by parliament in and later times to search and dig for saltpeter in pigeon houses, stables, and outhouses, but not dwelling, shops, or milkhouses. they had to repair any damage done to the contentment of the owners. complaints were made to parliament that there were scandalous and ill-affected fomenters of the civil war and disobeyers of the ordinaries of parliament and deserters of their ordinary places of residence. these complaints were made by members of the university of cambridge, students, clergy in surrounding counties, and schoolmasters. so a committee was established in to investigate and sequester their lands and goods, excepting one- fifth of the estate for the wife and children. when charles was captured in , the episcopacy of the bishops was abolished. when parliament was about to reinstate charles as king with weakened powers and establish a presbyterian state church, the soldiers, who were religious independents and who still had not been fully paid (the infantry pay was weeks in arrears and the cavalry weeks) despite plans to disband them, spontaneously took the king by force. they demanded liberty of conscience to practice their own religion and their pay. cromwell sided with the army and then became leader of the house of commons. charles dissembled in his negotiations with the army generals. he felt freed from his promises as soon as the pressure was removed. the army could not forgive charles' duplicity and deceitfulness and insisted upon his death as the only way to bring peace. cromwell gave up hope on negotiations with charles when he intercepted a letter by charles to his queen decreeing the final doom of the army adherents in favor of the scottish presbyterians. during protracted negotiations over months between the army and parliament over a new constitution, a renewed support for the king, which was inspired by him, necessitated a second civil war to put down this revolt and subdue its scot supporters. eventually the army took control of parliament by force, only allowing the few members who agreed with them on the trial of the king into parliamentary meetings. so charles was tried in , found guilty of "an unlimited and tyrannical power to rule according to his will, and to overthrow the rights and liberties of the people ... which by the fundamental constitutions of this kingdom were reserved on the peoples' behalf in the right and power of frequent and successive parliaments or national meetings in council", and maintaining a war against his subjects, which amounted to treason. to prevent his adherents from trying to reinstate him, he was condemned to death and beheaded in january . parishes had to give maintenance to maimed soldiers and provision for the livelihood to the wives and children of killed soldiers. masters of apprentices who became soldiers had to take them back as apprentices without loss for their absence in defense of the commonwealth. masters who received considerable loss by the absence of their apprentices received reasonable satisfaction from the public stock. to pay for the civil war, an assessment tax on the yearly value of rents, annuities, and offices was often levied. the main burden of this tax fell on the gentry rather than the merchants and smaller men of property, as previous taxes had. an excise tax, a tax on consumption, was begun on ale and beer and then extended to meat, salt, starch, soap, and paper. it was gradually extended to many goods. the excise taxes were paid, as was the customs tax, by manufacturers on goods made in england and by foreign manufacturers on goods at the ports. from - , royalists were purged from oxford and a group of baconians moved into the university behind parliamentary armies. at the two universities, books were no longer chained to the bookcases. the universities were freed from taxation. after the civil wars, cromwell led the country. he was a military, political, and religious leader. he had become a puritan zealot after a youth of gambling, drinking, debauchery, and rioting. he believed that military success was a reflection of divine favor and he regarded himself as one the few elect preordained for salvation. those in power in the new commonwealth tended to explain their regime in terms of popular consent, and the takeover from charles i as due to his breaking of a contract with the people. most people dressed in puritan fashion. a puritan's favorite readings were the old testament, epistles of st. paul, and switzerland's john calvin. wealth and prosperity steadily increased in spite of the civil wars. during cromwell's tenure, there was a marked revival of economic prosperity. by the mid- s, landlords had been able to shorten their leases so that a lease of twenty-one years was the predominant form of landholding. patent protection was given in to the inventors of a device for salvaging ships' goods and cannons from the seas for seven years. with it they could convert to their own use one half and items retrieved, the other half going to the navy and parliament. patent protection was given in to george manby on his new invention for boiling liquors and making salt with less coal and wood and iron, lead, and copper for fourteen years. patent protection was given in to jeromy buck for melting iron, lead, tin, copper, brass, and other metals with coal without burning charcoal, for fourteen years. dutchman stevinus showed that the pressure at the bottom of a column of liquid is proportional to the height of the column, and not to its bulk, about . he also studied oblique forces, and the balancing of such that could bring about "stable equilibrium". evangelista torricelli, an italian student of galileo, discovered in that any fluid will be supported at a definite height, according to its relative weight, as compared with air. he realized that a mercury column, inches in height, in a long glass tube inverted in a cup of mercury, was being supported by air pressure exerted on the mercury in the cup. when he observed that this height changed with the weather, he had invented the mercury barometer. his creation of a vacuum, above the mercury in the tube, astonished philosophers, who had thought that nature abhored a vacuum and would prevent it. blaise pascal, a french mathematician, physicist, and religious philosopher, constructed a calculator in to assist his father, who was involved in local administration, in tax computations. around , he proved his law that pressure applied to a confined liquid is transmitted undiminished through the liquid in all directions regardless of the area to which the pressure is applied. around , he laid the foundations for the theory of probabilities, including the creation of "pascal's triangle" of coefficients of (a=b) raised to the nth power. jean ray from france concluded from his experiments that every piece of material has a given weight, including air and fire. the merchant adventurers were incorporated again in to have a monopoly. it was required to admit into membership for pounds anyone free of london and bred as a merchant, and for pounds any non-inhabitant of london. the penalty for trading for one who was not free of the corporation was forfeiture of his goods. in , the house of commons abolished the monarchy and in the house of lords. also in it declared that england "should thenceforth be governed as a commonwealth and free state by the supreme authority of this nation, the representatives of the people in parliament." it made a new constitution. john milton defended the commonwealth as superior to the monarchy because it could not deteriorate into tyranny in his books: "first defense of the people of england" in , and "second defense" in . he lauded cromwell as great in war and great in peace, and exemplifying the principle that "nature appoints that wise men should govern fools". thomas hobbes, the son of a clergyman, and tutor to students, wrote "leviathan" in on his theory of sovereignty. hobbes thought that states are formed as the only alternative to anarchy, barbarism, and war, so that supremacy and unity of a sovereign power is essential to a civilized life and the protection of the citizenry. a sovereign may be a man or body of men as long as his or its authority is generally recognized. there must be a social contract among the citizenry to obey a certain sovereign. to avoid religious conflict, there must be a complete subordination of the church to the state and the religion of a state must be dependent upon its secular sovereign. hobbes thought that knowledge of the world came through experience and not reason alone. only matter exists, and everything that happens can be predicted in accordance with exact, scientific laws. he regarded human societies as purely mechanical systems set in motion by human desires. he saw self interest as the mainspring of moral law. conflicting self interests transformed into a lawful system of agreements. hobbes opined that all power really originated in the people and that the end of all power was for the people's good. on the other hand, james harrington, who wrote "the commonwealth of oceana" in , opined that a stable society depended on a direct relationship between the distribution of property and political power; no one with property worth more than , pounds should be allowed to acquire more and property should be divided among children. a senate of mature property owners were to make and debate the laws while an assembly elected by universal suffrage was to vote on them because "a popular assembly without a senate cannot be wise and a senate without a popular assembly will not be honest". a third of the senate would turn over every year. john milton defended the execution of the king in "the tenure of kings and magistrates" in which he maintained that the people may "as often as they shall judge it for the best either to choose him or reject him or depose him, though no tyrant, merely by the liberty and right of freeborn men to be governed as seems to the best". he also wrote in favor of liberty of the press. ordinary speech found its way into prose writing. lands of more than royalists, including church lands, were confiscated and sold or leased by county committees. many royalists put their lands into trusts or turned them over to relatives or sold them outright to prevent confiscation. it was an upheaval comparable to the dissolution of the monasteries. also, specified papists who had taken up arms against the realm lost their lands and goods and money and rents and two-thirds of their personal estates. but allowance was made for the maintenance of their wives and children. the book of common prayer was abolished because of its burdensome ceremonies. it was replaced by a directory for public worship. according to this, the sunday service was to include reading of the scriptures, prayer, and a sermon, ordinarily on some text of scripture which would be explained with reasons therefore and applied to peoples' lives so they could see it they had sinned or not. the ending of episcopal patronage gave some parishes the right to elect their own ministers. all festivals and holy days were abolished, e.g. christmas, easter, whitsuntide. instead, scholars, apprentices, and servants were to have recreation and stores were to be closed every second tuesday of the month. the usual merry-making, music, dancing, and sports after the sunday service were discontinued. a day for fasting: the last wednesday of every month, was declared by statute. this day was to be "kept with the more solemn humiliation, because it may call to remembrance our sins, and the sins of our forefathers, who have turned this feast, pretending the memory of christ into an extreme forgetfulness of him, by giving liberty to carnal and sensual delights, being contrary to the life which christ himself led here upon earth, ...". this statute lasted for only five years from because observance of it was not consistent throughout the country. educational opportunities such as in grammar schools were more widespread and stronger than ever before or since until the s. about % of men in london were literate, and % of men nationwide. about half the women in london were literate by . in , the marshalls of the admiralty and five major ports were ordered to search all ships for stolen children since it had been a problem in london. the elderships of the church were given power in to suspend from the sacrament of the lord's supper all ignorant and scandalous persons. ignorance was lack of knowledge that there is a god and this is the one true god we worship, that this god is one, yet three persons" father, son, and holy ghost, that god created man in his own image, that all have sinned and therefore shall die, that there is one mediator between god and man: jesus christ, who died on the cross to save men from their sins, that he rose from the dead, ascended into heaven, sits at the right hand of god, and intercedes for us, that christ and his benefits are applied only by faith, that the souls of the faithful live with christ in blessedness, that non-believers and non-repenters shall perish eternally, that the sacraments are baptism and communion, and that the is a judgment day on which the righteous will be given life eternal and the wicked shall receive everlasting punishment. scandalous persons are those who blasphemously speak or write anything of god, his holy work or the sacraments; an incestuous person; an adulterer; a fornicator; a drunkard; a profane swearer or cursor; a murderer; a worshipper of images, crosses, crucifixes, relics, saints, or angels; makers of images of the trinity; one who professes not to be in charity with his neighbor; any challenging another to fight or accepting such challenge; on the lord's day, dancing, dicing, cards, masking, wake, shooting, bowling, football, wrestling, plays, interludes, fencing, bullbaiting, bearbaiting, hawking, hunting, coursing, fishing, fowling, selling wares, travel without reasonable cause; brothel-house keeper, one who solicits the chastity of another; one who consents to the marriage of his child to a papist or marries a papist; own who goes for advice to a witch, wizard, fortune-teller; assault his parents, or any magistrate, minister, or elder in the execution of his office; one attainted of barratry, forgery, extortion, or bribery. if such a person persists, he shall be excommunicated. cromwell did not disapprove of activities prohibited because of the recreation they provided, but thought that they had become too central to people's lives. he did not close the taverns or ale houses. in it was required that public preachers be approved by a commission nominated by the lord protector and parliament because there had been too many "weak, scandalous, popish, and ill- affected" ones. in named persons were ejected as scandalous, ignorant and insufficient ministers and schoolmasters. in a corporation was established to teach the gospel of jesus christ in new england to indians. because the poorer parishes of london were having problems supporting their poor, a corporation for the poor of london was established in with authority to erect workhouses and houses of correction. imprisoned debtors who had less than five pounds and less that five pounds worth of trade tools and clothing and bedding for his family were ordered released in . wardship was abolished. military tenures were abolished. feudal tenures were converted into freehold in . in those living in crown forest land were given free socage in that land. the game laws were not enforced, so people could eat deer. enclosures were increasing and parliament was disinclined to protect copyholders against enclosures, favoring those with rights of ownership. enclosure was no longer deterred especially after abolition of the star chamber. the legal device of "strict settlement" evolved to prevent heirs from breaking up estates enabled families to concentrate land and capital into large units. the oldest son inherited the land and the younger sons now received money. clover seed was sold in london by . it revolutionized the cultivation of barren land. england began to export instead of import grain. but vagrancy increased from people dispossessed of land. and the village artisan, when deprived of his field and of this rights of common, could not continue to work at home, but had to accept the wages offered to him in an employer's workshop. employers and entrepreneurs were now free from control by the crown. there were no more attempts to supervise quality of manufactures or to fix prices or regulate wages. there was greater freedom established in relations between employers and workers. the government no longer tried to compel employers to keep employees in times of economic slump. the requirement of seven year apprenticeships and being the son of a freeholder to be an apprentice were not enforced. the economy was still volatile due ostensibly to variable harvests, amount of gold and money in circulation, and balances of trade, and to periods of plague. wages rose steadily. the rise in prices ended about , and prices remained stable until about . there was more mobility of people. taxation became regular and it was controlled by representatives of the taxpayers. population growth gradually stabilized. capitalism was coming into being. for instance, the clothier was now a manufacturer. he had become a contractor, taking wool to the specialist spinner, the yarn to the specialist weaver, the rough cloth to be washed and stretched, and finally to the dyer. this cloth was sold at retail by the drapers. tin on the surface was exhausted, so capital was used to drive deep shafts in tin mines. no longer did a single man with a single ship sail around until he found a market, but company trading overseas had their ships, wharves, and depots furnished by men's savings put into a common stock. the first major capitalist industries were coal mining, iron mining, and foreign trade because they all needed large investments, and thus joint-stock company organization. cromwell reconstituted the east india company on a wider and more permanent basis. he gave it a new charter in which included authority to make stock permanent, thus ensuring a continuity of capital. this solved the problem of the competition of overlapping voyages which still occurred despite their terms of several years. the company became one of the first permanent joint-stock companies. now the stock was never wound up. the company had permanent capital which could grow. the absence of competition among voyages made the company stronger in the face of a common enemy, such as a rival trading county or indian groups. the charter also authorized the company to fortify and colonize any of its establishments and to transport to them settlers, stores, and ammunition. later in , the company threw open the freedom of the company to the public for a nominal sum of five pounds. now the merchant adventurers and private traders could participate. it provided that dividends were to be paid only in cash and not in kind (goods). it also provided for appraisals of the company's property to be made every three years, so any shareholders could redeem their shares proportionately. his shares would then be resold. people began to buy and sell their shares among each other. the company made the minimum subscription pounds. each person holding pounds worth of shares had one vote. holding , pounds worth of shares qualified one for election to the committee of twenty-four. the seats of the members of this committee and of the governor and deputy governor could no longer be permanent, but had limited and staggered terms. the continuity of capital took the place of the permanence of the governing body in providing stability. there was a regular scale of salaries for employees, and rules of conduct such as the one disallowing any clerk of the india house from going to play houses, dancing schools, or taverns. the company established almshouses for its widows and orphans. in the muscovy company, renewed its charter for trade in russia and established a new general stock. if a man bought a share, he bought freedom of the company. an annual dividend was declared from the annual profits. commercial men regularly kept accounts with bankers. merchants used division to apportion profits or losses to the parties whose capital was involved. simple and compound interest were used. the concept of contract became a familiar one. regular private bankers of london emerged from the goldsmiths from to . they issued bank notes and paid checks. cromwell increased trade by seizing territories, establishing colonies, and warring with competitors for master of the seas and trade. in it was provided that no one who paid his assessment for soldiers' pay would have to quarter any of them. authority was given in to impress seamen: mariners, sailors, watermen, surgeons, gunners, ship carpenters, caukers, coopers, whoymen, and carmen for carriage of victuals. english ships were embellished with decoration. their sail area was increased by triangular fore and aft sails. the navy increased from to vessels. after serving in foreign wars, ex-soldiers were allowed in to practice any trade without serving a seven year apprenticeship. colonies new hampshire and maine were established in , connecticut in , and rhode island in , as offshoots from other colonies. about , steel was hardened by repeated quenchings and temperings when the steel had reached certain colors. brass was made from copper and zinc alloyed together. there were power-driven rolls for the coinage from . strips of silver were passed between engraved rolls. then coins were punched out and their edges serrated. in the s, huygens invented the pendulum clock, which increased the accuracy of time-keeping tenfold. there was a thermometer which used liquid such as water or alcohol in a glass tube instead of air. dutchman stevinus showed that the pressure at the bottom of a column of liquid is proportional to the height of the column, and not to its bulk, about . he also studied oblique forces, and the balancing of such that could bring about "stable equilibrium". at a time when mathematics was only a business of traders, merchants, seamen, carpenters, and surveyors, mathematician john wallis, the son of a minister, studied sections of cones as curves of the second algebraic degree. he worked with negative and fractional exponents. around he invented the infinite arithmetic and introduced the symbol for infinity. he determined that the area under any curve defined by the equation y = (x to the nth power), was x to the (n+ )th power divided by n+ . , blaise pascal, a french mathematician, physicist, and religious philosopher, constructed a calculator in to assist his father, who was involved in local administration, in tax computations. around , he proved his law that pressure applied to a confined liquid is transmitted undiminished through the liquid in all directions regardless of the area to which the pressure is applied. around , he laid the foundations for the theory of probabilities, including the creation of "pascal's triangle" of coefficients of (a=b) raised to the nth power. he and lawyer and mathematician pierre fermat invented the theory of probabilities. fermat also proved that the law for refraction (bending) of light results from light's following the path that takes the shortest time. he founded number theory. fermat formulated the notion of a line tangent to a curve and started the development of differential calculus, in which a rate of change is expressed as a function of time in equation form and also as a tangent to the curve associated with that equation.. this work helped lay the foundation for analysis. he and german gottfried leibniz formulated the principle that an equation with two unknown quantities can represent a curve. leibnitz believed that man's mind can arrive at truths about entities by pure thought. since the puritans forbade music in churches, but enjoyed it in domestic circumstances, much secular music was composed, published, and played. there were many musical clubs. the violin became very popular. solo songs were much sung. the first english opera: "the siege of rhodes" was written and performed with women on stage. writers of the time included john milton, political philosopher james harrington, poet edmund waller, thomas fuller, poet abraham cowley, and biographer issak walton. john aubrey wrote anecdotes about famous men. jeremy taylor, chaplain to charles i, wrote on theology. people still read french romances translated into english. dancing was still popular. coffee houses came into prominence as places of social discourse. the first coffee house was established in london in ; ten years later, there were coffee houses in the city. there were elegant pleasure gardens, with a fee for access. they were used for promenades and picnics. ladies and their gallants rendezvoused there. cromwell introduced the habit of port drinking to england. in , one general post offices was established with one postmaster general for all of england. no other person could have the horsing of the through-posts. it cost d. for a letter to or from miles of london and d. for one outside miles of london. there was continual problem with catholics. where papists or others had caused rebellion and insurrection and plundered, robbed, pillaged, murdered and raped, mayor, justices and capital burgesses of such towns were given the power in to call, assemble, train, and arm soldiers for defense. the committee of the militia of london was given authority in to search all houses and places for papists and to search for and seize any arms, ammunition, and war materials in custody of such persons. in , all papists and soldiers of fortune who had borne arms against parliament were ordered to depart from within twenty miles of london and westminster or be imprisoned as traitors. in convicted papists and people marrying convicted papists were required to take an oath renouncing the pope and catholic church or lose two-thirds of their lands and estate, retaining their house on the remaining one-third. if one went to mass in an ambassador's house, the fine was pounds and imprisonment for six months, one half going to the informer. in all householders in london and westminster had to give a list of persons lodging in their house, and the horses and arms there. but the laws against catholics practicing their religion were not rigorously enforced, nor were those against adherents of the formerly established church of england. the society of friends was founded by the son of a weaver. they greeted everyone as "friend" and did not bow, remove their hat (as was the custom when before the king or an earl), or otherwise show any reverence to anyone. from , they were called quakers because they trembled when religiously stirred. they reverted to the ancient "thou" and "thee" appellations. their dress was particularly simple, with no buttons, lace, ruffles, or embroidery. they hated ritual so much that they rejected baptism and communion. they did not observe the sabbath as a special day different from other days. they derided the holiness of churches. no clergy were admitted into their sect. when they met for divine worship, each rose to deliver extemporaneous inspirations of the holy ghost. women were admitted to teach the brethren and were considered proper vehicles to convey the dictates of the spirit. quakers believed that every man, in his own life, could be fully victorious over sin. the denied any clerical authority and all texts. they believed in the separation of church and state. they refused to swear to any oath, e.g. in court, or to participate in war. they refused to take off their hats to anyone but god. it was their practice to turn the other cheek when one cheek had been struck. if asked for his cloak, a quaker would give it. he never asked more for his wares than the precise sum which he was determined to accept. the quakers developed a value of making provision for children from a first spouse when remarrying. they carefully selected masters and mistresses who wanted to take on child apprentices for their suitability for such responsibility. the education of quaker women did not decline, as it did for other women. from the fervor of their zeal, the quakers broke into churches, disturbed public worship, and harassed the clergyman and audience with railing and reproaches. when brought before a magistrate, they show no reverence but treated him as an equal. sometimes they were thrown into mad house or prisons and sometimes whipped or pilloried. they endured stoically under this suffering. mary fisher from yorkshire introduced quakerism to new england. in there were separation agreements between spouses as to property, e.g. support and maintenance. cromwell had bad experiences with parliaments. the rump parliament was a remnant of the long parliament. the army and then cromwell, although a member, came to believe that its members were self- interested, preoccupied with perpetuating themselves in seats of power, and corrupt. they thought that their own hopes of reform in the law, in the church, and in public finances were being deliberately frustrated. cromwell came to doubt that it would ever give the people adequate government and protection. he started to believe that one man as chief executive could do this better. cromwell dismissed the rump parliament in . a new constitution created a puritan "parliament of saints". these men were nominated in various ways, such as by church parishes, and selected by cromwell. this one-house parliament of saints in made cromwell lord protector for life with executive power of the state, with responsibility for making peace and establishing order after a decade of civil strife and political chaos. he was to administer the government and be the chief magistrate. it also provided for triennial parliaments (consisting of one house), and religious freedom for all except roman catholics and adherents of the formerly established church of england. cromwell did not tolerate the ritual of the formerly established english church nor allow any of its adherents to have any office under him. his was a purely puritan government. he did not sell offices. the parliament of saints challenged many vested interests in property such as sales of delinquents' and papists' lands. it clashed severely over the continuation of tithes to the church. it became disorderly when some declared the parliament dissolved and left. others remained in their seats. to avoid a parliamentary crisis, cromwell had soldiers close the parliament of saints and lock its doors. the people supported this action because they were dissatisfied with the state of public affairs. the next parliament that was tried was elected on a new constitutional basis of men with pounds, but these men voted to make parliament sovereign without a chief executive, thereby abolishing the protectorate. cromwell was distressed that this parliament had also voted themselves to be the sole determinors of atheism and blasphemy instead of advancing liberty of religious conscience and religious toleration as cromwell had advocated. dissolved this parliament, declaring that it was not acting for the public good. a last parliament was also dissolved by cromwell for tending to loosen the bonds of government and thereby threatening the peace of the nation. cromwell had first ruled as a democratic leader who did not believe in force, but preferred to persuade with reason. he initially believed that people would do the right thing according to their consciences, but was disillusioned and then became autocratic. he came to rule as a military dictator. payment of taxes was enforced by distraint. after , he issued about proclamations covering public amusements, roads, finances, the condition of prisons, the imprisonment of debtors, banning of dueling and cockfighting, law reform, control of religion and education, and reorganization of the army. the singing of ballads was banned. the court of chancery was reformed by proclamation. the established church was reformed and the power to interfere with different faiths was denied to it. each parish could choose its form of service, whether presbyterian, congregational, baptist, or any other seen as fundamental by the puritans. no one was compelled to attend any particular church or to accept the discipline of any particular minister. but the book of common prayer was forbidden. there was freedom of worship for presbyterians, independents, baptists, quakers, catholics, and jews (who had secretly migrated to england to avoid persecution on the continent), but not prelatists (those favoring government of the church by bishops). in , cromwell placed major generals in charge of eleven newly- established provinces. as their governors, they had authority to levy troops, exact taxes imposed by the protector, disarm royalists and catholics, examine into the conduct of the clergy and schoolmasters, arrest dangerous and suspicious persons, and prevent unlawful assemblies, and to enforce the existing laws against immorality and blasphemy. the only appeal was to the protector. since they were puritans, they ordered public ale houses to close as dusk, banned idlers, minstrels, and actors, forbade exercising of horses on sunday and the holding of markets on saturday as well as sunday, censored the press, and proscribed newspapers. horse races, which meetings were used for seditious purposes, were closed. theaters were closed. dancing was discontinued. organs and choirs in churches prohibited. court masks continued because they provided soothing music. after a year, cromwell withdrew the major-generals. from this time, men of property hated the idea of a standing army. in , the officers of a new parliament modified the constitution and cromwell approved it, to secure liberties of the people as they never before had. under the modified constitution, there were again two houses. the commons regained its old right of exclusively deciding on the qualification of its members. parliamentary restrictions were imposed on the choice of members of the council, officers of state, and officers of the army. a fixed revenue was voted to the protector. no moneys were to be raised except by consent of parliament. liberty of worship was guaranteed to all except papists, prelatists, socinians (who denied the divinity of jesus), for those who denied the inspiration of the scriptures. liberty of conscience was secured for all. in , cromwell tried another parliament, but dissolved it because it wrangled without resolution. after cromwell died, the people demanded the return of a genuine and free parliament. the old constitution was restored and a new house of commons was elected. it called charles ii to return to be king if he promised religious freedom and backpay to the army, which had not recently been paid. when cromwell's puritan soldiers were disbanded, they did not drift into thievery as royalists soldiers had before, but took up honest work such as baker, mason, brewer, baker, or haberdasher. puritanism now made itself felt not by the sword, but in literature and politics. it affected the character of the english, who tend to be stoics, and imbued capitalists with a hard-working attitude. - the law - after the civil wars, the law against enclosure was not enforced. what was passed in parliament in cromwell's time were called statutes, but after cromwell's time, these statutes were not recognized as legitimate. "whereas public sports do not well agree with public calamities, not public stage-plays with the seasons of humiliation, this being an exercise of sad and pious solemnity, and the other being spectacles of pleasure, too commonly expressing lascivious mirth and levity ... public stage plays shall cease, and be forborne instead of which are recommended to the people of this land the profitable and seasonable considerations of repentance, reconciliation, and peace with god, ..." no book or pamphlet may be printed, bound, stitched, or sold or imported unless licensed and entered into the register book of the company of stationers. officials of this company and of parliament may search all places which they shall think meet for all unlicensed printing presses and all suspected printing houses, warehouses, and shops and other places for unlicensed books and pamphlets and papers and seize them and apprehend all authors, printers, and other involved people and bring them before parliament or the committee on examinations for punishment. justices of the peace and other officers may order doors and locks broken for this purpose. the fine is ten pounds for authors, five pounds for printers, two pounds for booksellers, and one pound for buyers who conceal a book bought. one half of each fine shall go to the person who discovers and prosecutes the offender, and the other half shall go to the poor. this law suppressed royalist newspapers but was enforced only with great difficulty. all shall observe sunday and days of thanksgiving in their "duties of piety and true religion publicly and privately" and none may sell wares or goods, including fruit or herbs upon pain of forfeiture of such. none may, without reasonable cause, travel, carry burdens, or do any worldly labors or work whatsoever or pay a fine of s. this work shall include grinding grain, fulling in mills, burning turf or earth, gathering taxes, melting wax for candles, brewing, baking, butchering cattle, tailors fitting or carrying clothes, barbers trimming hair, being present at fairs or markets, or washing, whiting, or drying clothes. nor may any one maintain or be present at wrestlings, shooting, bowling, ringing of bells for pleasure or pastime, masks, wake, church-ale, dancing, games, sport or, for those over , forfeit s., and for those having care or education of a child under , d. maypoles, a "heathenish vanity, generally abused to superstition and wickedness", shall be taken down by officers or forfeit s. per week. if any offender can't pay his fine, he shall be put in the stocks for three hours. however meat maybe dressed in private families, and victual sold in inns and victualling houses in a moderate way, and milk sold before a.m. or after p.m. persons of the trinity, angels, or saints shall be demolished. altar and communion tables must not be raised but leveled. there may be no copes, surplices, superstitious vestments, or holy water fonts. there may be no crosses, crucifixes, pictures of the trinity, angels or saints on plates. all organs must be taken away. the fine for using the book of common prayer is five pounds for the first offense, ten pounds for the second offense, and one year imprisonment without bail for the third offense. the penalty for writing or preaching against the directory for public worship is five to fifty pounds. blasphemies and heresies such as teaching or writing or printing that there is no god, that god is not almighty, that jesus was not divine, that the resurrection of jesus did not occur, that the bible is not the word of god, or that there is no judgment day after death, are felony without benefit of clergy. if such an offender recants, he shall stay in gaol until he obtains two sureties. if he offends again after recantation, it is felony without benefit of clergy. in adultery was declared to be a felony, except if the husband had been beyond the seas for three years or had been reputed to be dead. incest was also declared to be a felony. it was defined as marrying or having carnal knowledge of one's grandparent, parent, sibling, mother's brother or sister, father's wife, mother's husband, son's wife, daughter's husband, wife's mother or daughter, or husband's father or son. fornication was given a punishment of three months imprisonment and until security was obtained for one year for good behavior. it was defined as carnal knowledge of a virgin, unmarried woman, or widow. a common bawd or one keeping a brothel or bawdy house was to be whipped, set in the pillory, marked in the forehead by a hot iron with the letter: b, and then imprisoned for three years without bail and until there were sureties for good behavior for life. the second offense was felony without benefit of clergy. there was to be no corruption of the blood. however, juries were reluctant to convict for adultery and incest. there shall be no profane swearing or cursing of forfeit by a lord s., a baronet or knight s., an esquire s., a gentleman s. d., and all others s. d.there is a double fine for the second offense. for the tenth offense, the offender shall be bound by sureties for good behavior for three years. a person equating himself or another with god or not believing in god shall be imprisoned for six months without bail. for the second offense, he shall be banished from the nation. no longer shall people be punished for nonattendance at church on sunday or days of thanksgiving, but may be at some other place of prayer, preaching, reading, or the scriptures. hawkers and ballad singers have been libelous, so are to be whipped as common rogues and then dismissed. also, their ballads and pamphlets are to be confiscated. vagrant, idle, loose, dissolute and disorderly persons and fiddlers in inns, alehouses, and taverns are to be punished as rogues, vagabonds, and sturdy beggars, that is, whipped. in , treason against parliament was defined as writing, printing, or declaring that the government is tyrannical, usurped, or unlawful or that parliament is not the supreme authority or the nation, or plot, contrive, or endeavor to stir up or raise force against the government. attainder for such would not work corruption of the blood. treason to the protector was defined the same as it was to the king. army deserters are to be corporally punished or executed. fellable wood and underwood, but no timber trees, may be cut within miles of london because fuel is needed, especially by the poor. this will be supervised by overseers appointed by parliament. no one may import foreign hats or hatbands to relieve that industry in england. as of , certain food could not be exported when the prices of such exceeded a stated amount. for instance, pounds for a gallon barrel of beef, d. for a pound of bacon, pounds and s. for a gallon barrel of butter, and s. for pounds of rye, pease, or beans. the customs for such items was more for foreigners than for natives, for instance s. for natives and s. for foreigners for a barrel of beef. butter for sale must not be corrupt and be properly weighed. one must obtain a license to buy wheat or other grain and put it to sale in meal or flour or forfeit three times the value. all books of the law, writs, pleadings, and patents shall be in english or forfeit pounds. no deer may be killed or forfeit pounds, half to the informer and half to the poor. interest may not exceed pounds for a loan of pounds yearly as of . no goods are to be imported from america, asia, or africa except in english ships or forfeit all goods and the ship, one half of which goes to the one who seizes the goods and prosecutes. none may be imported from europe except in english ships or ships from the country of origin of the goods. no salt fish may be imported or exported but in english vessels. there is a pound reward for discovery of highwaymen and burglars or persons who break and enter into houses and there use violence. no cart or wagon or carriage on the road may be drawn by more than five horses or six oxen and a horse except for military vehicles. notice of intended marriages shall be published once a week for three weeks in a public meeting place called church or a public market place next to church. exceptions to the marriage shall be noted by the register and considered by the justice of the peace before the marriage is performed. the words used shall be: "...promise to be unto thee a loving and faithful husband..." and "promise to be unto thee a loving, faithful, and obedient wife...". there shall be no cock-fighting because it disturbs the peace and usually is accompanied by gaming, drinking, swearing, and quarreling. anyone challenging or accepting a challenge to duel shall be imprisoned for six months without bail, and must acquire two sureties for a year. anyone fighting a duel in which death ensues, shall be banished for life. horse races were forbidden in for six months to discourage mischievous plots and designs by enemies of the state. the penalty was forfeiting the horse. attendees were to be brought to justice. as of , a house or building built within ten miles of the walls of the city of london not having at least four acres had to pay a fine of one year's rent. all houses within london or westminster or the suburbs must be brick or stone, and built straight up without protruding into the street or forfeit pounds. as of persons living extravagantly without visible estate or calling may be made by justices of the peace to acquire sureties for good behavior or go to gaol. they would also be sent to the house of correction to work for three months for the first offense and for a time specified by the justice of the peace for the second offense. anyone winning at betting or playing at cards, dice, tennis, and horse races shall forfeit double his winnings. excluded from pardon were buggery with man [sodomy] or animal [bestiality], carnal ravishment of women, and bigamy. drunkenness was much punished. husbands were responsible for their wives' oaths and fathers for their daughters'. - judicial procedure - the protector is the supreme magistrate of the commonwealth, with power to pardon all crimes, except murder and treason. parliament was no longer a court. use of the torture was proscribed in . in , the justices were given a salary of , pounds and forbidden to take fees or rewards. they also got tenure, thus freeing them from government pressure. now civil justice was honestly dispensed and justices were learned and honest. the jurisdiction of admiralty court was defined to include: ships and vessels with tackle, apparel and furniture thereof; repairing, victualling, and furnishing provisions of ships and vessels for sea; all cases of bottomry [ship-owner indemnified if the vessel were lost, but paid over a substantial share of the profits if it reached its destination safely], contracts beyond the seas concerning shipping or navigation; charter, parties, contracts for freight; bills of lading; mariners wages; damage of goods on board ships; and damage by one ship to another including by anchors or want of laying buoys. it did not include contracts between merchants. - - - chapter - - - - times: - - the monarchy was restored and charles ii came to the throne. the episcopacy of the bishops and the book of common prayer were restored. this book retained all its ceremonies, despite opposition by the presbyterians. the confiscated royalist, church, and crown lands were ordered to be restored, and most were. charles ii was presented with the traditional rights of choosing his own privy council, ministers of state, and justices; making foreign policy; controlling the armed forces; and approving statutes. he was also presented with the power to call and dismiss parliament, but later, in , a statute required that parliament be held at least once every three years, to avoid royal schemes of non-parliamentary government. the house of lords was reestablished and there were again bishops in it, though fewer than before (about / instead of about / ). there were peers for the next century. the house of commons was elected in the usual way, but without a king's writ. the commons was composed mostly of royalist established church members. its leaders were important members of the king's privy council. the feudal tenures of the crown, such as knights' service, were converted into free socage. they were discharged of homage, reliefs, escuage, and aids. charles relinquished purveyance, wardships, and forfeitures of marriage. in return, parliament granted him a fixed yearly income of , pounds from excise tax on beer, cider, and tea. several hundreds of dissenter ministers and school teachers were ejected, but later those who were not baptists were returned by statute of parliament. (baptists did not believe in an established church.) charles ii was an easygoing and kindly man and hard to ruffle. he had a weariness in the folly of men and a cynical disbelief in human virtue. his wit and great sense of humor softened many a potentially tense situation. his restoration to the throne brought in a time of enjoyment of life in reaction to the puritanism of before. at his succession, the elected parliament was oriented toward royalty and the established church. he was voted an income of , , pounds a year. he also sold many of the last crown lands. but he always had great debts, which he described as a "desperate but not serious" situation. this was in part due to his generous maintenance of several successive mistresses and more than about a dozen illegitimate children. his entourage also included physicians, surgeons, a librarian, a poet laureate, chaplains, painters, an historiographer, musicians, a royal composer, and an astronomer. charles even joked on his deathbed that "i am sorry gentlemen, for being such an unconscionable time a-dying." the day of charles ii's restoration and birthday was designated as a day of thanksgiving when all were to participate in prayers and the singing of psalms at some church or other suitable public place. charles initiated the return of sunday afternoon wrestling, archery, music, and dancing. theaters reopened with actresses playing women's parts, an audience only in front of the stage instead of around it, a drop curtain, and painted two-dimensional scenery. actresses were allowed pursuant to royal proclamation so that plays should become "useful and instructive representations of human life" rather than "harmless delights". charles went to plays regularly. actresses were assumed to be mistresses of patrons in return for their jobs, but one fourth were actually chaste women married to actors. comedies were the preferred plays. courtesans were sympathetically and even admirably treated in plays, which mocked all restraints and glorified immorality with the exception of pornography, which was banned. bad actors were hissed off the stage. henry purcell wrote religious music for churches, ceremonial music for the english court, and theater music for english opera. opera made music a vehicle for human emotions. the gentry sang to the lute and danced to string instruments. many owned and played musical instruments. humble people had folksongs and instruments like the pipe and tabor for dancing. singing in parts was popular in town and country. in john banister started the first regular series of public concerts in his house. there were lovely formal gardens in which to walk, to see fireworks, and to buy the new ice cream. charles did much garden and park planning and let the public enjoy the royal st. james park. he loved hunting too and had the royal forests replenished with deer after poaching during the cromwell era had greatly reduced their numbers. charles ii introduced sailing and yacht racing for pleasure. he also participated in and promoted horse racing. the breeding of thoroughbred horses began with breeding to arab mares. gelding horses were now preferred over stallions. there were trotters, cart horses, and some "fast" race horses. boxing (with no gloves nor ring) was a national sport. ice skating with iron blades was popular. valentine's day was celebrated. italian puppet shows played in london. dress returned to elaborateness. gentlemen wore cavalier-style long wigs with curls, despite the church's dislike of wigs. this could hide the short hair of a former puritan roundhead. in , charles introduced a new mode of inexpensive court dress which was made entirely from english textiles. this gave rise to gentlemen's weskits to below the knee with a coat of the same length and full sleeves. stockings and shoes replaced the long fitted boots. charles set a court tradition of men wearing a scarf tied around the neck. ladies often wore their hair in masses of ringlets with little corkscrew curls on each side of their heads, and later piled their hair up elaborately on their heads. they wore satin or silk dresses fitted at the waist with a pointed bodice, and full skirt. the shoulder line was low and the sleeves full and open at the front with fastenings of jeweled clasps. the only fast colors were reds, blues, purple, and yellow, but not green. they kept their hands warm in muffs. women wore perfume, rouge, and face patches. some women put on a lot of make-up. many men dressed effeminately with rouge, face patches, heavily scented clothing, muffs, and many ribbons of many colors. the facial beauty patches were in shapes such as stars, crescent moons, and hearts; they diverted attention from the common smallpox scars. there were oxford shoes, which laced up the front through eyelets. the members of the house of commons dressed like the gentry and assumed their manners. there was exaggeration in all complimentary and ceremonial language. the gentry were beginning to be thought of as a "squirearchy". they owned about half the land of the country. the population according to class was as follows: number of social ranks, household household households degrees, titles size yearly income in pounds temporal lords , spiritual lords , baronets knights , esquires , gentlemen , persons in greater offices and places , persons in lesser offices and places , eminent merchants and traders by sea , lesser merchants and traders by sea , persons in the law , eminent clergymen , lesser clergymen , freeholders of the better sort , freeholders of the lesser sort . , farmers . , persons in liberal arts and sciences , shopkeepers and tradesmen . , artisans and handicrafts , naval officers , military officers , common seamen , laboring people and out-servants . , cottagers and paupers . . , common soldiers , vagrants, as gypsies, thieves, beggars as can be seen, agriculture is still the most common occupation. great houses now had a central dining chamber [saloon] for dining, with sets of lodgings [suites], usually for couples, around it. each lodging had an ante-chamber and/or drawing room, and then a bedchamber, off of which there was a servant's room and a closet [cabinet]. no longer did personal servants bed down in the drawing room or outside their master's door or in a trunkle bed at his feet. the servant's room was connected to a back staircase for use by servants. secret guests also used it. the closet room was the innermost sanctum for privacy and gave its name to the later cabinet of the government. there were fewer servants and they were of a lower social status than before. they were often sons of merchants, clergymen, and army officers. gentlemen no longer advanced by service to a great man, but instead through grammar school and university education, commerce, the law, or the armed services. this change came about because the state now maintained reasonable law and order. there were more female servants, who were paid less to cook and to clean as well as doing laundry and nursing. servants were kept more in the background, preferably out of sight. the elaborate ceremonial ritual with sewer, carver, and cupbearer was gone. a butler replaced the yeomen of the buttery, ewery, and pantry, and footmen began to wait on the table at which the lord, his lady, and other couples sat. servants no longer had meals in the hall, which now had a grand staircase up to the dining chamber. the highest servants, the officers: clerk of the kitchen, clerk of the check [comptroller], head cook, butler, and groom of the chambers, and female housekeeper ate in the gentleman-of the-horse's room, although at a separate table. the kitchen staff ate in the kitchen. the footmen, underbutler, porters, coachmen, grooms, stable-boys, gardeners, maids ate in a servant's room. the steward was no longer the chief household officer, but had a room near the kitchen. the bulk of the servants slept in the basement or subordinate wings of the house. great houses of nobles had more rooms, such as a chapel, library, parlors, dressings rooms, and galleries; there was a variety of architectural floor plans. the structure of a noble household of an earl was as follows: the chief official was the receiver general. he had financial responsibility for the household and prepared accounts for the household and for the tenants' estates. these were checked by an auditor. the receiver general was often the son of a country gentleman and had a salary of pounds raised to pounds with longevity. he had a servant and an assistant. if married, he had a house on the property. there was perhaps an attorney on retainer [paid for a certain number of hours per week or month}. the gentleman of the chamber [privy purse] kept the accounts of the family and bought them apparel and toiletries. he was in close personal attendance upon the earl. his salary was pounds a year. besides the receiver general and the gentleman of the chamber, the tutor and chaplain had the closest personal contact with the family. the lady had a gentlewoman with a maid servant. the receiver general supervised most of the staff. there was a steward of pounds a year. he supervised a clerk of the kitchen and a house bailiff of pounds a year. the bailiff had responsibility for the produce of the estate, e.g. the gardens, the deer park, and the fish ponds. under the clerk of the kitchen was the cook man and kitchen boys, the latter of whom were clothed and fed but not paid. the steward also supervised the pound yearly porters, who kept the gates; the watchmen outside; and the head housekeeper, usually a woman of to pounds yearly. she supervised the laundry maid and general maids, who spent much of their time sewing. the steward was also responsible for the wine cellar. a dozen footmen belonged partly to the house and partly to the stables and received to pounds yearly. they waited on the lord and lady in the house and accompanied them in travels and did errands for them. the gentleman of the horse supervised the stables, coach, dogs, kennels, and pound yearly huntsman. boy pages also worked partly in the house and partly in the stables. they were clothed and fed, but not paid. the head gardener received pounds for tending the flowers, vegetables, and fruit trees. he had casual workers as needed to assist him. the steward was also responsible for the london house. here there was a housekeeper, a watchman, and a pound a year gardener, all there permanently. when the lord was there, bargemen were employed for his barge. the salaries for the family estate totaled about pounds a year. sometimes married sons' or daughters' families stayed for months at the family estate; then they would pay for their part of the food. well-to-do people drank imported tea and coffee, sometimes from porcelain ware, and usually after dinner or supper. most tea leaves were brewed first for the family and guests and a second time for the servants; then they were given to the servants' relatives or friends. queen mary encouraged the fashion of collecting chinese porcelain. the rich had red or black and gilt lacquered cabinets and cupboards. oak gave way to walnut, with its variegated surfaces. there were grandfather clocks. some fireplaces now had cast-iron firebacks. stuffing began to be upholstered to woodwork benches. chairs were taller in the back. ladies did needlework to cover them and also made patchwork quilts. cane seats came into fashion. from the spring of to the end of there was a great plague, mostly in london. it was the last and worst plague since the black death of . it lasted over a year and about one-third died from it. households with a plague victim were walled up with its residents inside to reduce contagion, and then marked with a red cross. church bells tolling their requiems clanged in ceaseless discord. the mournful cry "bring out your dead" echoed in deserted streets. at night groups of people shoveled the corpses into open graves. to prepare for this revolting task, they often first became drunk out of their senses. people took wild beliefs in hope of avoiding the plague. for instance, at one time it was thought that syphilis would prevent it, so maddened hordes stormed the brothels. at another time, it was rumored that the plague could be burned out of the air, and all one day bonfires blazed outside every door and people sweltered in the heat. other localities posted sentries on the road to keep londoners out of their areas to prevent the plague from spreading there. since sneezing was thought to be the first sign of a person getting the plague, it became common to ask god to bless a person who sneezed. in london, statistics were collected on the number of plague victims and their places of death to try to determine the cause of the plague. in a fire destroyed three-fourths of the city of london. the blazing buildings were so hot that people with leather buckets of water, hand squirts, and manually operated water-pumping machines could not get near them. there was a lot of noise from falling buildings. panic and desperation were widespread. there was a lot of crying out and running about distractedly. people saved some of their possessions by burying them or removing them from the fire's path as they moved to different lodgings. the streets were full of carts piled high with furniture and merchandise. the thames river was thick with heavily laden barges. melting lead from st. paul's church ran down the streets in a stream. the tower of london, upwind of the fire, was saved by blowing up surrounding buildings. eventually the wind abated and the fire was put out. a fire court with royal justices was created to offer settlements that were free, fair, fast, and final. army tents and supplies, and soup kitchens sustained the citizens in the fields. after the fire, buildings had to be brick or stone rather than wood, except for doors and windows. also, more plaster and tile was used. all roofs had to be of tile or slate, rather than thatch. there was a general use of tile for roofing. about , came slate for roofings. all buildings had to be at least two stories high, with flat facades rather than overhanging upper floors. they had to have wide brick walls around them to avoid the spread of fires. many streets, squares, and alleys were professionally planned, after the example of indigo jones who had continued his town planning with lincoln's inn field's open square surrounded by houses with iron balconies and leiscester square. main streets had to be wide enough to stop a fire. the street selling that had caused so much congestion was removed to new market places. the massive rebuilding of london ended the monopoly of the building trade claimed by the mason's company. astronomer and geometrician christopher wren designed and built a new st. paul's cathedral and many churches in london, becoming england's first architect. he worked up from a square base through all sorts of shapes to a circular double dome on top. the fire put an end to whitehall as a royal residence and st. james palace was used instead. but at least one fire hazard remained. that was the practice of lighting new fires by taking buckets of hot coals from one room or house to another. this was faster than the several minutes it took to use a tinder box to start a flame, i.e. striking a piece of flint upon a piece of steel making a spark which was dropped onto tinder and then blown upon. matches were invented in this period, but expensive and unsafe. nicholas barbon began fire insurance in the s. if fire broke out on an insured premises, the insurance company's firemen would come with leather buckets and grappling irons, and later small hand pumps. barbon also redeveloped many districts in london, tearing down old buildings without hesitation. he started the system of selling off leases to individual builders, who hoped to recover their building costs by selling their houses before they were completed and before substantial payments on the lease became due. entrepreneurial master-builders subcontracted work to craftsmen and took a large profit or a large loss and debt. aristocrats bought large parcels of land on which they built their own mansions surrounded by lots to be rented to building contractors and speculators like barbon. the houses built on these lots were sold and the underlying land rented. these rentals of land made the mansions self-supporting. barbon built rows of identical townhouses. sometimes houses were built on all the lots around a square, which had gardens reserved for the use of those who lived on the square. most of the new building was beyond the old city walls. marine insurance for storms, shipwreck, piracy, mutiny, and enemy action was also initiated. before the fire, e.g. in tudor times, the writing of risks had been carried on as a sideline by merchants, bankers, and even money-lenders in their private offices and was a private transaction between individuals. london was residential and commercial. around the outside were tenements of the poor. from to , london's population had risen tenfold, while the nation's had only doubled. london went from % to % of the nation's population. in , london's population was about half a million. after , london's population grew at the same rate as the nation's. the first directory of addresses in london was published in . business began to follow the clock more strictly and many people thought of their watches as a necessity. london coffee houses, which also sold wine, liquors, and meals, became specialty meeting places. they were quieter and cheaper than taverns; for a penny, one could sip a cup of coffee by the fire, read the newspapers, and engage in conversation. merchants, stock jobbers, politician groups, soldiers, doctors and clergymen, scholars, and literary men all had special coffee house meeting places. notices and letters of general interest were posted therein. many merchants, brokers, and underwriters, especially those whose houses had been burned in the fire, conducted their business at their coffee house and used it as their business address. men in marine insurance and shipping met at lloyd's coffeehouse, which was run by edward lloyd who established it for this purpose in . lloyd provided reliable shipping news with a network of correspondents in the principal ports at home and on the continent and circulated a handwritten sheet of lists of vessels and their latest movements at his coffeehouse. the patrons cheered safe arrivals and shared their grief over ships lost. they insured their own risks at one moment and underwrote those of their friends the next. auctions of goods and of ships and ship materials which had been advertised in the newspapers were conducted from a pulpit in the coffeehouse. french wine was consumed less because of heavy taxation and spirits and beer were consumed more. the streets were alive with taverns, coffee houses, eating houses, and hackney coaches past p.m. at night. coffee houses were suppressed by royal proclamation in because "malicious and scandalous reports" defaming his majesty's government were spread there, which disturbed the peace and quiet of the realm. but this provoked such an uproar that it was reduced to a responsibility of the owner to prevent scandalous papers and libels from being read and hindering any declarations any false and scandalous reports against the government or its ministers. london air was filthy with smoke from coal burning. in the streets were lit with improved lights which combined oil lamps with lenses and reflectors. groups of householders combined to hire lighting contractors to fulfill their statutory responsibility to hang candles or lights in some part of their houses near the street to light it for passengers until : p.m., and later to midnight. in a monopoly was sold to one lighting company. in a body of paid watchmen was established in london. an office of magistrate was created and filled with tradesmen and craftsmen, who could make a living from the fines and fees. this was to supplement the unpaid justices of the peace. the public was encouraged to assist in crime prevention, such as being witnesses, but most policing was left to the parishes. crowds punished those who transgressed community moral standards, threatened their economic or social interests, or offended their religious or patriotic beliefs. often a crowd would react before the call of "stop thief" or the hue and cry from the local constable. pickpockets would be drenched under a pump. cheats would be beaten up. dishonest shops and brothels would be ransacked or destroyed. the most common targets were promiscuous women and pregnant servants. there were many highway robberies and mob actions in london. mobs in the thousands would turn out against the catholics, especially at times of unemployment and trade depression. working people still saw demonstrations and violence as the best way to achieve their economic goals, since strikes didn't work. for example, the silk workers used street violence to get protective legislation against imports and mechanization in . the manufacture of silk material had been brought to england by french workers driven from france. in , three thousand london silk weavers demonstrated outside the commons and east india house against the importation of raw silks by the east india co., and a couple months later, they attacked a house in the city owned by a gentleman of the company. in , heavy duties were imposed on the import of indian silks and wearing of indian silks was prohibited by statute. sometimes mobs would break open the prisons to release fellow rioters or take action against strike breakers or informers. parish constables elected by their neighbors could not control the mobs and stayed within their parishes. dueling was still prevalent, even though against the law. in london and westminster, it was hard to enforce the requirement that inhabitants keep the street in front of their house clean and store the filth until the daily raker or scavenger came with cart and dung pot. so a commission was made responsible for paving and keeping clean the streets, making and repairing vaults, sewers, drains, and gutters, and removing encroachments. it compensated those with encroachments of over years. it assessed inhabitants of such streets d. per square yard from the front of their building to the center of the street. women continued to empty their pails and pans outside their doors and did their washing on stools in the streets. there was a penalty of d. for throwing filth in front of one's house, and d. for throwing it elsewhere in the streets. scavengers and rakers could lodge their coal ashes, dust, dirt, and other filth in such vacant public places as the commission deemed convenient for accommodating country carts returning otherwise empty after their loads were sold. however, this system did not work because people would not pay their assessments. so there was a return to the former system of requiring citizens to sweep and clean the streets in front of their buildings twice a week and keep the filth until a scavenger or raker came. the penalty for not doing so was s. d., later raised to s. any one throwing coal ashes, dust, dirt, rubbish, or dung onto the streets or lanes incurred a fine of s. there was a fine of s. for hooping or washing any pipes or barrels in any lane or open passage or repairing coaches, sawing wood, or chiseling stones in the streets. pigs kept in or about one's house had to be forfeited. one way that people traveled was to be carried in sedan chairs held up by two horizontal poles with one man at the front ends and another man in back. there were so many sedan chairs and coaches for hire in london that the watermen lost business. all hackney coaches in london or westminster were required to be licensed and marked with their owner's distinctive mark so that complaints could be made. their maximum rate was s. for a hour day, and d. for the first hour and d. for every hour thereafter. licensed coachmen were not allowed to practice any other trade. the coaches paid the commission pounds yearly. hay sold along the road brought d. per load, and straw d. per load, to the commission. there had to by paid d. for every cart load of hay sold at the hay market and d. for every cart of straw, to go towards paving and repairing the hay market street. overall, agriculture improved. fields that would have been left fallow were planted with new crops which restored indispensable chemical elements to the soil. at the same time, they supplied winter food for stock. the size and weight of animals for slaughter grew. there was so much stock breeding that it was more economical for a family to buy meat, milk, and eggs, than to maintain animals itself. there was an explosion in the growing of beans, peas, lettuce, asparagus, artichokes, and clover. the demand for food in london and other urban areas made enclosure for crop cultivation even more profitable than for sheep grazing. the government made no more attempts to curtail the enclosure of farm lands. the number of enclosures grew because copyholders were not successful in obtaining the legal security of tenure. but most land was not enclosed. in in essex, the wages for mowing one acre of grass were s. d.; for reaping, shearing, binding one acre of wheat s.; and for threshing a quarter of wheat or rye s. wives participated with their husbands in general agricultural chores and did the dairy work including making cheese. every householder kept chickens because egg production was cheap, their market price being only s. for a hundred. wives also took care of the gardening work and traditionally kept for their own the cash that came in from garden, dairy, and poultry products. a wife made jellies and preserves when the fruit trees, bushes, and vines were bearing. imported sugar enabled fruit to be preserved as jam in jars sealed with a layer of mutton fat to make them airtight. she was likely to concoct medications from her herbs. meat had to be smoked or salted when there was not enough fodder to keep animals alive through the winter. she saw to it that the soap was boiled and the candles molded. she cooked the daily meals, did the washing, produced cloth for the family's use, and sewed the family's clothing. women had less work and lower pay than men. since most cottages had a spinning wheel, spinning work was readily available to wives. in the s, a female weaver or spinner was paid - d. per day. a domestic servant, who was usually female, was paid - s. a year. men in the trades objected to competition from lower-paid women. aristocratic ladies actively managed their family's household and estates. the only work available to a high middle- class woman who was waiting to get married was to be a governess in another household or a lady-in-waiting to a gentlewoman. children often worked; this was recommended so that they were under the direct supervision of their parents rather than getting into mischief in the village. the mother typically mingled severity with gentleness, but the father did not dare to err on the side of leniency. discipline was by whipping. children were treated as little adults. the lack of a conception of childhood innocence even extended to the practice of adults to tell bawdy jokes in their presence or play with their children's genitals. about , the royal society for science was founded by charles ii, who became its patron. it was formed from a discussion group of the new experimental philosophy. it included the baconians formerly at oxford and cambridge, who were ejected at the restoration, and a group of gresham professors of geometry and astronomy. the royal society met at gresham college. its goal was to compare ideas in mathematics and science and identify specific aims of science. charles himself had his own laboratory and dabbled in chemistry and anatomy. similar societies were formed all over the world. theologicians warned that scientific research was dangerous. but it's advances improved agriculture, manufactures, medicine, surgery, navigation, naval architecture, gunnery, and engineering. issac newton was a genius, who in his childhood designed and built model windmills, water wheels, water clocks, and sundials. he came from a family which had risen from the yeomen ranks to the gentry. for a few years after graduating from cambridge university in , he secluded himself in the countryside to study. here, using the work of wallis, he formulated the binomial theorem that expands (a+b) raised to the nth power, where n is an integer, fraction, or negative number. when n was a negative number, the expansion never terminated; instead of a finite sum, there is an infinite series. he then developed the notion of a number being the limit of an infinite converging series of partial sums, such as the limit of +( / )+( / )+( / )...= . by considering the state of motion of a mass-point in an infinitely short time under the influence of an external force, he developed rules for finding areas under algebraic curves [integration], such as the hyperbola, and finding tangents to algebraic curves [differentiation], which he recognized as inverse processes. that is, taking the integral and then the differential of a function results in a return to that function. newton discovered that colors arose from the separation rather than a modification of white light, that is natural sunlight. he did this using a prism to dissect the white light into its spectrum of constituent colors and then using a prism and lens to recombine the colors to reconstitute white light. the spectrum was the same as that of a rainbow. he determined the angle of refraction of each color by beaming white light through a prism, and then through a hole in a board which isolated one color, to another prism. when he discovered that all colors reflect from a mirror at the same angle, he invented and built the reflecting telescope, which used a parabolic concave mirror and a flat mirror instead of a convex lens, thereby eliminating the distortions and rainbow coloring around the edges that resulted from the refraction of different colors at different angles. he deemed a ray of light to consist of a rapidly moving stream of atomic particles, rather than robert hooke's pulses or christian huygens' waves, because shadows showed a sharp boundary between the light and the absence of light. he reasoned that if light was made up of pulses or waves, it could spread around obstacles or corners as sound seemed to do. he approximated the speed of sound. newton opined that an object moves because of external forces on it rather than by forces internal to the object. he connected the concepts of force and acceleration with a new concept: mass. he found that the acceleration of a body by a force is inversely proportional to its mass, and formulated the equation that force equals mass time acceleration. another law was his principle of inertia that any body, in so far as it is able, continues its state either of rest or in uniform, rectilinear motion. his next law was that when a body a exerts a force on a body b, then b also exerts a force on a which is equal in amount but opposite in direction. newton had a radically novel idea that equated instantaneous acceleration to the gravity force which provoked it. he theorized that the same gravity force that pulled an apple down from a tree extended out to the moon hold it in its orbit around the earth. he connected these movements by imagining a cannon on a mountain shooting a series of cannonballs parallel to the earth's surface. the first shot had only a tiny charge of explosive, and the cannonball barely makes it out of the muzzle before falling to the ground. the second shot is propelled by a larger charge, and follows a parabolic arc as it falls, the next shots, fired with increasingly more propellant, eventually disappear over the horizon as they fall. lastly, with enough gunpowder, a speeding cannonball would completely circle the earth without hitting it. he combined the inductive and deductive methods of inquiry, first making observations, and then generalizing them into a theory, and finally deducing consequences from the theory which could be tested by observation. he carried mathematization of data from experiments as far as possible. his universal theory of gravitation is based on the idea of forces between objects rather than from one object to another; e.g. the apple exerts a force toward the earth as well as receiving a force from the earth. his law of gravitation explains how the whole universe is held together. this law holds that every object in the universe attracts every other object with a single gravitational force that is directly proportional to the product of their masses and inversely proportional to the square of the distance between their centers. newton had first believed in the cartesian system of celestial vortices of aether than swirled the planets and comets around their orbits. the gross features of the universe led to his recognition that the attraction between two bodies decreased inversely to the square of the distance between them. then he came to accept hooke's hypothesis that planets are kept in their orbits by the combination of an attractive power of the sun and of motion in a straight line that was tangential to their orbits. from astronomical data, he calculated this centrifugal acceleration of each planet to be the inverse square of its distance from the sun. he also calculated the "centripetal" accelerations necessary to bring the planets into their orbits. his experiments had shown that he centripetal force in a circular orbit was equal to the mass of the body times the square of its velocity, all divided by the radius of the circular path. he used calculus and differential equations to determine centripetal forces of elliptical orbits, where the distance from the sun, the velocity, and the acceleration were variables. he correlated the moon's orbit with the measured acceleration of gravity on the surface of the earth. then he formulated the idea that the ultimate agent of nature was a force acting between bodies rather than a moving body itself. gravity did not act in proportion to the surfaces of bodies, but in proportion to quantity of matter, its penetration to the very center of all bodies without diminution, its propagation to immense distances decreasing in exact proportion to the square of the distance. newton showed that a single gravitational force could account for the way falling objects descend to the ground, the parabolic trajectory of projectiles, the motion of the moon in its orbit around the earth, the course of the tides every twelve hours, the lower densities of the earth's atmosphere at greater heights, the paths of jupiter's satellites, and the ellipitical motions of the planets in their orbits around the sun. it had been thought that invisible angels moved the planets. he proved from his law of gravitation and his three laws of motion the truth of kepler's laws of ellipitical planetary motion. he demonstrated from data collected from the comet of that comets moved according to his law of gravitation. non-periodic comets were observed to follow hyperbolic paths. he used the concept of a common center of gravity as a reference point for other motions. the fact that the center of gravity of the solar system was within the body of the sun verified that the sun was indeed at the center of it. newton's "principia mathematica philosophia naturalis", was published in . the church denounced it as being against the scripture of the bible. newton did not agree with the established church on many points, such as the trinity, and was considered a heretic. he had his own interpretations of the bible and doubted the divinity of jesus. but it was accepted for dissenters like newton to qualify for full civil rights by maintaining an outward conformity and taking the sacrament in the established church once a year. newton was given a royal dispensation from taking holy orders as prescribed by the rules for tenure of fellows of his college at cambridge university. he did believe in a god who created the universe and who had a ubiquitous presence in all space. when catholic king james ii tried to have a catholic monk admitted to the degree of a master of arts at cambridge university without taking the oath of adherence to the established protestant church, in order to participate in the business of the university, newton was active in the opposition that defeated this attempt. when newton's laws were applied to the paths of the moons of jupiter, it was noticed that the moons were a few minutes ahead of time at that time of year when jupiter was nearest to the earth and a few minutes behind time when jupiter was farthest from the earth. olaus roemer, a danish astronomer, postulated that jupiter's eclipses of its moons lasted seconds longer the farther away jupiter was from the earth because it took their light longer to reach the earth. he concluded that light does not travel instantaneously, but at a certain speed, which he calculated in . in , christian huygens formulated the law of conservation of momentum [mass times velocity], which held that when objects collide, they may each change direction, but the sum of all their velocities will remain the same. huygens also recognized the conservation of what was later called "kinetic energy", which is associated with movement. in , he posited the theory that light consists of a series of waves. it states that all points of a wave front of light in a vacuum may be regarded as new sources of wavelets that expand in every direction at a rate depending on their velocities. he thought this a better explanation of bending and interference of light than newton's particle theory. in , robert boyle, called the father of modern chemistry, defined an element as a substance that cannot be further decomposed and distinguished it from a mixture, which is easily separable, and a compound, which is not easily separable. he used a pump he developed and a glass jar to create a confined air space for experiments. he noted that burning objects such as candles and coal, when placed in the receiver of his air pump, went out after a time although air was still present. he opined that animals were dependent upon a fresh supply of air to live. he studied the relationship between the volume, density, and pressure of gases. he proved by experiment that the volume of a gas at a constant temperature varies inversely to the pressure applied to the gas. since gas is compressible, he opined that gases must be composed of discrete particles separated by void, and also that basic physical properties were due to motions of particles, or atoms, which was an ancient greek conjecture. this cast doubt on the theory that everything was composed from the four basic elements: air, water, fire, and earth. boyle's laboratory at oxford was denounced by the oxford clergy as destroying religion. in , the steam pressure cooker was developed. robert hooke, the son of a minister who died when he was thirteen, helped boyle build his air pump. he was a genius with innate mechanical skill. he applied a spiral spring to regulate the balance of watches. a lord financed him as a gresham lecturer for pounds a year. in , he used a pendulum to measure the force of gravity and showed that the center of gravity of the earth and moon is a point describing an ellipse around the sun. in , he explained the scintillation of the stars by irregular atmospheric refractions. he formulated the theory that light is composed of pulses. hooke's law states that the amount an elastic body bends or stretches out of shape is in direct proportion to the force acting on it. he invented the odometer, a wheel to measure distances. he constructed an arithmetical machine. he invented the universal joint, which can move in many angles. at his death, hooke had thousands of pounds stored in an iron chest. wallis wrote a treatise on algebra which was historical as well as practical. in , he postulated the correct theory of impacts of inelastic bodies, based on the principle of conservation of momentum. during this time, he also deciphered enemy messages for royalty and was made a royal chaplain. royal astronomer and genius edmond halley, the son of a soap maker, studied tides, magnetism, and the paths of comets and stars. he went on voyages to study the heavens from different positions, thereby laying the foundations of physical geography. he showed that the stars change in position in relation to each other. with newton's help, he calculated the orbit of a comet he saw in to be elliptical rather than parabolic and then proved it was the same comet that had appeared in and , indicating it's regularity; it was then named "halley's comet". however, the church of england still embraced the idea that comets and eclipses were evidence of god's wrath. greenwich observatory was built in . halley used a barometer to measure the density of the atmosphere and related its readings to elevations into the atmosphere and to weather. he determined that the cause of the tropical trade winds was the sun warming the tropical air at the equator, causing it to rise blow away from the equator to replace cooler air. he illustrated the tropical winds with the first meteorological map. he made a descent in a diving bell, which was used to try to reach wrecked treasure ships. he compiled a table of mortality, which originated the science of life-statistics. he studied fossils and perceived them as remnants of living beings that had died long ago, and imagined a succession of living things. halley surveyed the tides and coasts of the british channel for the king in . in , apothecary nicolas lemery divided substances into mineral, vegetable, and animal. he wrote a dictionary of pharmaceuticals. john ray and francis willughby were friends who traveled together to study plants and animals respectively. john ray started the science of zoology with his edition of francis willoughby's "ornithology" on birds and his own "history of fishes". he also attempted the first scientific classification of animals in his "synopsis of quadrupeds". ray compared anatomies and experimented on movements of plants and the ascent of sap. he knew what fossils were. ray first suggested the concept of species in classification of animals and plants. he opined that the goodness and wisdom of god was shown not only by the usefulness of animals to man's uses as taught by the church, but also by the adaption of animals to their own lives and surroundings. the vast array and dispersal of animals found by world explorers all over the world cast doubt on the biblical story of noah putting two of every kind of animal on an ark. the science of botany began with ray's "history of plants", and the researches of robert morrison, who was charles' physician and keeper of his gardens. the idea from fossils that existing species of animals were modifications of predecessor animals conflicted with the religious belief that noah's ark had preserved all the varieties of animals. the idea that fossils were remnants of dead animals existing before man conflicted with the religious idea that adam's fall began sin and caused death. nicholaus steno, a danish physician, demonstrated in that layers of strata of rock are always deposited with the oldest layers on the bottom and the youngest layers on the top, which began the science of geology. john aubrey described stonehenge, thus founding prehistoric archaeology. he thought it to be a druid temple. the telescope and compound microscope, which has an objective lens and an eyepiece lens for producing a wide range of magnifications, were further developed. nehemia grew, the son of a grammar school master who later became a physician, observed and drew plant anatomy, including leaves, flowers, fruits, seeds, ovules, pollen grains, and stamens. he was the first to observe the existence of sex in plants. italian marcello malpighi, a physician, used the new compound microscope to study human skin, spleen, kidneys, and liver and also compared the livers of several types of animals. dutchman anton van leeuwenhock, a cloth manufacturer who made microscopes to inspect the quality of cloth, turned them to use in understanding the life cycles of mites, lice, and fleas. he correctly described human blood cells. when he found what he described as tiny animals (bacteria, protezoa, and rotifers), he sent clear descriptions of them to the royal society in london as proof against the theory of spontaneous generation, which held that lower forms of life could arise from nonliving matter. this started the science of bacteriology. the cellular basis of life was discovered. human blood vessels were examined. when the egg in the female reproductive system was discovered, the status of women was lifted. physician thomas willis, son of a farmer, dissected brains of men and animals to study the anatomical relations of nerves and arteries. excess urine had been associated with a wasting disease. willis identified diabetes mellitus with excess of urine with sweetness. physician thomas sydenham, son of a gentleman, observed epidemic diseases of london over successive years, thus founding epidemiology. he also furthered clinical medicine by emphasizing detailed observations of patients and maintaining accurate records. he wrote a treatise on gout and identified scarlet fever. he introduced a cooling method of treating smallpox. but he still relied on the big three treatments: blood- letting, purging, and sweating. blood-letting was to draw off bad blood so that it could be replaced by a better fluid. another treatment used was cupping, whereby a vacuum was created by heated glass cups to draw blood to the surface of the skin. john locke performed one of the first successful operations on a kind of abscess of a man's liver. it was common for people who felt ill to take a laxative and rest at home. in , physicians opened the first dispensaries, which gave treatment and medicine together, to take business away from their rivals: the apothecaries. london's apothecaries were released in from jury service and serving as constable, scavenger, or other parish or ward office because it was necessary that they be available to attend the sick at all times. peruvian bark which had quinine as its alkaloid had been introduced as a proven cure for the ague, a fever with chills usually due to malaria, in . the english ceased to believe in holy wells, but went to spas such as bath for treatment for disease. there was more bathing because private homes in towns now had indoor baths. the public baths came into disuse. for childbirth, only rich women were attended by physicians. most physicians used talismen such as the eagle stone at deliveries. caesarian section almost always led to the death of the mother. midwives were licensed by the church and could baptize babies. jane sharp wrote "the midwives book" with anatomical illustrations. women over thirty had fewer children and the last child born was at an earlier age than before. this was in part due to birth control such as coitus-interruptus, long breast-feeding of a current child and/or the taboo against sex if the wife was still breast-feeding. women who were rich often employed wet-nurses. babies seldom thrived, or even survived, without out a regular supply of breast milk. john locke, an oxford don, physician, and son of an attorney, expressed a view that the monarchy was based on a contractual relationship with the people. this idea which was first adopted by revolutionists and then became accepted as orthodoxy. furthermore, he articulated the right of resistance, the supremacy of legislative assemblies, and the responsibility of rulers to answer to their subjects. he theorized that men turn to forming a civil government when there is a need to protect accumulated property. this, along with the protection of life and liberty, was the primary function of government, before royal pleasure, national pride, or foreign conquest. he wrote theories on the interaction of supply, demand, interest rates, rents, coinage, and foreign exchange rates. he believed that interest rates should be the natural ones determined by market forces rather than by the legislature, especially if there was an attempt to lower interest rates underneath their natural rate, which was not only undesirable but easily circumvented. he thought that attempting to legislate contrary to natural economic laws, e.g. prices, was doomed to failure from unexpected consequences. he agreed with most mercantilists that by maintaining a large inflow of precious metals through consistent export of surpluses in foreign trade would lead to low interest rates, increased trade, increased capital stock, high employment, and high prices, and therefore a healthy economy and enrichment of the nation. john locke theorized that propositions have probability rather than certainty. his "thoughts on education" was a great book on the formation of character. locke also wrote about the large field for knowledge in labor-saving and economic inventions. he espoused freedom of thought in "letters on toleration" and wrote "an essay concerning human understanding", which described how the mind functions in learning about the world and which attempted to reconcile science and christianity. he was a great admirer and friend of newton and they shared religious views. he thought that knowledge comes primarily from experience rather than from the mind, so that observation and experimentation are necessary to find truth. immanuel kant from prussia, who became a professor of logic and metaphysics, was also impressed by newton's findings and expressed his philosophy that man has perceptions in space and time and can have some descriptive knowledge of his world by using purely intellectual concepts such as possibility, existence, necessity, and substance. he thought of god as theological perfection, and morality as practical perfection. the british primarily adopted the views of their own hobbes and locke, and bacon before them. at oxford and cambridge universities, there were the most enlightened theologians, classicists, orientalists, philologists, mathematicians, chemists, architects, and musicians. there were professors of anglo-saxon, hebrew, and arabic. john locke's influence caused modern philosophy to supercede traditional scholasticism. there were no more disputations to qualify for degrees. some of the students were the sons of noblemen and sat at meals with the heads, tutors, and fellows of the colleges. most students were the sons of landowners, clergymen, professional men, or prosperous men of business. they were known as the gentlemen commoner students. the few poor students were known as servitors and paid for their education by menial work. corporal punishment ceased. instead there were fines, suspension, and expulsion. fellows of colleges had common rooms for drinking and smoking together as they had done in taverns outside college walls. the king had authority to grant licenses in sell or give land in perpetuity, to encourage founding and augmenting colleges and schools. the two universities were vested with the presentation of benefices that had belonged to papists. english nonconformists such as presbyterians were excluded from oxford and cambridge universities, so they were educated at glasgow in scotland. grammar schools were blamed for the past civil war by educating too many people above their station, so ecclesiastical control now stifled them. a few dissenting schools were established. charity was given to schools for children of the poor for placement as apprentices, but not to educate them above their stations. in the s, about % of males in london were literate. by , illiteracy was a special characteristic of the poor instead of a characteristic of the vast majority of common people as in . fountain pens came into use. many books written tended to be about the author's experiences, for instance samuel pepys' "diary", gilbert burnet's "history of my own times", john evelyn's lifelong diary with vivid descriptions of striking events of the day, and nonconformist celia fiennes' description of her tour of england on horseback. there were many political biographies. historians did not yet study history as a continuous process, but narrated self-contained stories to instruct by example. william fleetwood wrote about economic history in "chronicon preciogum". george hicks put together a "thesaurus" of the northern languages. thomas hyde wrote on ancient persian religion. john spenser compared jewish rites with those of other semitic people, thus starting comparative religion. richard bentley, william's librarian, wrote a "dissertation" on the ancient greeks. he compared the ancient greek life with modern life. he also confuted atheism on the newtonian system. a translated version of "critical history of old testament" by frenchman richard simon identified the old testament as history instead of divine revelation. john milton wrote "paradise lost", which retells the biblical story of the creation and the fall of adam and eve against the backdrop of satan's rebellion and expulsion from heaven and emphasized god's justice in spite of everything. the poem deals with the puritan struggling against evil and the problem of sin and redemption. it has a cold and severe conception of moral virtue and stoical self repression in its characters. there is no sympathy with the human condition. reading this book made the english more serious, earnest, and sober in life and conduct and more firm in the love of freedom. john bunyan wrote "pilgrim's progress" in which a tinker takes a journey to find the everlasting city of heaven and on the way meets people who try to harm him. but he derives strength from his adversities. the journey is a metaphor for the christian soul trying to find salvation. it is puritan in its sympathies and has insights into human nature. john dryden wrote on large social, political, and humanistic issues, often by political satire. william congreve wrote plays such as a comedy on manners. william wycherley wrote cynical satires and portrayed folly, affection, and vice. john vanbrugh wrote plays satirizing london high society and social institutions. john toland wrote "christianity and mysterious" on deism. "puss in boots", "red ridinghood", and "cinderella" became available in print. there were many female poets, bookwriters, and playwrights. anne finch, later vicountess conway, wrote the philosophical book: "principle of the most ancient and modern philosophy" to reconcile the new science with christian belief. in it every creature had a body and a spirit. mrs. aphra behn wrote "oroonoko", one of the first novels. basua makin, governess of the little sister of charles ii wrote an essay to revive the education of women, arguing that women's activity in wartime showed that they were fit to be educated. elizabeth elstob, who studied teutonic languages, was one of the founders of women's education. mary astell proposed a college for women. some women painted portraits. there were rigid censorship acts from to . the first required that no one could print a book without first registering it with the company of stationers of london and having it licensed by appropriate authority: common law books by the lord chancellor or the lord keeper of the great seal, affairs of state and history books by the secretaries of state, heraldry books by the earl marshall or kings of arms garter, university books by the chancellor or vice chancellor of either of the universities, and all others including divinity, physics, and philosophy by the archbishop of canterbury, or bishop of london. books could be imported only into london and not sold until approved by the archbishop of canterbury or bishop of london after being opened and viewed by a scholar appointed by these bishops and a representative of the company of stationers. if heretical, seditious, scandalous, schismatic or otherwise dangerous or offensive, the importer could be punished. no one could print or import copies of any books without consent of the owner with right by letters patent. the penalty for not doing so was to forfeit s. d. for each such book, of which the king would receive one half and the owner one half. printers had to set their own name to the books they printed and also the name of the author or forfeit such book. only freemen of london who were members of the company of stationers could sell books. the company of stationers had the authority accompanied by a constable to search all houses and shops where they knew or had "probable reason" to suspect books were being printed. they could search houses of persons of other trades only by special warrant. they could examine books found to determine if they were licensed and, if not, to seize them. justices could imprison offenders. the first offense by offending printers was to be punished by suspension from printing for three years, the second offense by permanent disallowance from printing, fine, imprisonment, and corporal punishment not extending to life or limb. this statute was enforced by frequent prosecutions, such as of publishers of pornographic books. the only newspapers to appear between and were official government sheets. but in freedom of the press was established by the abolition of the licensing of publications, including newspapers. locke had argued for this freedom, stating "i know not why a man should not have liberty to print whatever he would speak and to be answerable for the one just as he is for the other..."in the first daily newspaper in the world came into existence in england. the stationer's company monopoly of printing also ended in . printing was not regulated and no longer criminal just because it was unauthorized. printing could be done in other places than london, york, oxford, and cambridge. the rich got richer and the poor got poorer. many successful merchants and manufacturers bought landed estates and established a line of country squires or baronets or even peers. the fashion started in the nobility and the richest mercantile families that their wives should become ladies of leisure. for workers though, there was constant underemployment. in periods of economic crisis industrial workers lost their jobs. much work was seasonal. anyone who could work most of the time was fortunate. laboring and out- servants, who comprised one fourth of the population, and cottagers and paupers, who comprised another fourth of the population, had to spend more than they earned. the poor rate collected for the cottagers and paupers was d. per week. there was an agricultural depression that was deepest in the s after the collapse of a boom. it was the only bad depression experienced in peace time. there was famine in . any person receiving relief from any parish and his family members cohabiting with him was required to wear a badge with a "p" which identified his parish. this was to differentiate them from idle, sturdy, and disorderly beggars who were not entitled to relief. there were more poor people and, despite the poor laws, many became rogues or vagabonds or starved to death. many went from parish to parish to build cottages and consumed all the wood there and then went to another parish. so the parishes were allowed by statute to remove any person coming to settle in any tenement under the value of ten pounds who was likely to be chargeable to it. they were then removed to the last parish were they had resided for at least forty days. excepted were people temporarily moving to another parish to work at harvest time. the overall effect was to decrease the mobility of people. but a later statute permitted greater movement of poor people by allowing those who were poor for want of work to go to another parish where labor was wanted. they had to bring a certificate of their present parish membership to the new parish, where they could settle if they rented a tenement worth ten pounds a year or served in a parish office. later, settlement had to be given to inhabitants paying its rates, and unmarried inhabitants hired for one year, and apprentices bound by indenture. but parishes were displeased with the requirement to give settlements to these people because they feared they would become poor and need parish assistance, thereby increasing the rates to be paid. parish poor houses were converted into spinning schools to obtain an income. parishes of large towns were combined to set up large workhouses, where the poor could be set to unskilled manufacture, but the managers lacked the character and education to make them work. because prisoners often died before trial and the poor prisoners became instructed in the practice of thievery in prison, they were set to work on materials provided to them at public expense. no parish was rated at more than d. per week for such. the president and governors of corporations oversaw rogues, vagrants, sturdy beggars, and idle or disorderly persons working in corporations or workhouses. assessments were made for building and repairing gaols in order to maintain the health and safe custody of the prisoners. also, gaol fever, a virulent form of typhus, was so prevalent in the large prisons for criminals and debtors that it frequently spread through the adjacent towns. during some assizes, it killed sheriffs, lawyers, and justices. in , london lands were taxed for the relief of orphans. churchwardens could seize the goods and chattels of putative fathers and mothers deserting bastard children. from to , societies for the reformation of manners prosecuted poor people for moral offenses. all hackney coaches and stage coaches in all the realm became required to be licensed. the turnpike system came into use. tolls were paid for road upkeep and repair by private companies. the local parishes ceased to have this responsibility. john ogilby wrote the first road book based on actual surveys of the roads. stage coaches cost a shilling for every five miles and went - miles a day. the trip from london to oxford was twelve hours. the company of coach and coach harness makers was founded with the consent of the king. the body of a coach hung from the frame by leather braces. one axle pivoted for turns. plate glass was used in the windows. rivers improved so that most places were no more distant from navigable waters than a long day's haul on land. the several post offices were put under the authority of one postmaster general appointed by the king for the purpose of speed and safety of dispatches, which were carried by horseback. one sheet letter going less than miles cost d., and more than miles, d. when the army was disbanded after the restoration, its officers and soldiers were allowed return to their trades and their apprenticeships without serving the usual seven years. parishes were required to provide for poor and maimed officers and soldiers who served charles i or charles ii. the royal hospital founded by charles as a home for veteran soldiers opened in . greenwich palace was converted to a hospital for seamen and their widows and children to encourage men to become seamen: mariner, seaman, waterman, fisherman, lighterman, bargeman, keelman, or seafaring man in the king's navy. also, disabled seamen's children were to be educated at the expense of the hospital. charles retained one regiment from which he started a small standing army, which slowly increased in size ever after. the army was primarily mercenary, as it had been in medieval times, with officers buying their commissions. colonels were the proprietors of their regiments and captains were the proprietors of their companies. the soldiers were ill mannered, swearing and cursing and stealing, sometimes from peoples' homes, and intimidating people with their swords. the bayonet was invented to attach onto a gun, which were muzzle-loading with a match lock. so pikemen with their long spears became obsolete. hand grenades and small explosive bombs came into use about . explosives were also used in mines. there was resort to many devices to fund wars. the land tax was still the primary tax. the customs and excise taxes were often extended to more goods and wares. sometimes there were duties imposed on marriages, births, and deaths. also, hawkers, peddlers, and other trading persons going from town to town to other men's houses on foot or on horse carrying wares had to buy a license. there were also loans from privileged companies such as the bank of england, east india co., and the south sea co. commissioners were appointed to take and state the account of all money in the public revenue. this discouraged the prevalent corruption of government officials and thereby the people were encouraged to pay their taxes. the goldsmiths loaned money to the king and to private persons and to the exchequer. receipts from goldsmiths for storage in strong boxes had become a de facto paper currency. but when the goldsmiths had no more money to lend, the bank of england was founded in under whig auspices to provide money for war. it was the first institution to issue notes in excess of its total deposits. however, it was not allowed to lend money to the crown without the consent of parliament. it was incorporated as the first english joint-stock bank and had about , shareholders. these original subscribers were individuals from london from many walks of life, including well-to-do tradesmen and about % of whom were women: wives, widows, or spinsters. not many corporations were original subscribers. holders of at least pounds could vote, of pounds could be directors, and of pounds could be governor. the bank issued notes payable to bearer and discounted bills, but these were not legal tender. it lent at % to the crown and occasionally to corporations. money was also borrowed by offering annuities on single lives. this was the first time the government borrowed directly from the public on a long- term basis. in there was inflation due to over issue by the bank because of inexperience, pressure from government, and the bank's greed for business. after a dividend of % in , the next year there was no dividend and so the bank stock price fell. in , five pound and ten pound short term bonds were sold to the public. also in that year was the first run on the bank. this occurred two days after clipped money lost currency; people wanted the new recoined money, but the mint had not supplied the bank with sufficient supplies. interest instead of cash was given for notes. cash was short for months. the bank's credit was much shaken. it was then given a monopoly so that its notes would not have competition. thereafter, its dividends were good - about % per year. because of its monopoly, its dividends were about % above the current going rate of interest. about this time, exchequer bills, with interest, were started by the exchequer and circulated by the bank of england. they were frequently endorsed many times by successive holders. the bank simply took over from the goldsmiths its main everyday business of deposit; running cash note [cashier's note, specie note, cash note], which was payable on demand and normally did not bear interest; and drawn note [precursor to the check, but not on special paper]. the bank gradually convinced many of its clients to use its "check" [cheque] paper when drawing. the check paper was unique to the bank and embellished with distinctive scroll work to serve as an obstacle to fraud. over time the running cash note tended to be for round sums of at least twenty pounds and multiples of five pounds. the bank of england had a monopoly on issuing notes in the london area. country banks arose and issued bearer notes payable on demand and interest-bearing notes in their areas. the bank of england gave to its depositors the service of paying annually to a designee without further order. a decision of the common law courts held that bills of exchange (written orders to pay a given a sum on a given date) were transferable to other people by successive endorsements. so long distance payments no longer had to be made in coin, with all the dangers of highway robbery. the financial revolution of the s meant that the merchant elite could invest in government bonds or company bonds at - %, or london leases at %, as opposed to income from landed estates, which was under %. shareholders were no longer personally liable for company losses. interest on loans was no longer considered sinful as long as it was not oppressive. the greater ability to borrow spurred the growth of capitalism. all brokers and stock jobbers in london and westminster of bank stock, bank bills, shares and interests in joint stock must be licensed by the mayor, which shall necessitate their taking an oath to exercise their office without fraud or collusion to the best of his skill and knowledge as of . this is to avoid the collusion of fixing values to their own advantage. the science of statistics made life insurance possible. but it was administered by ad hoc offices rather than companies and was not reliable in making payments. charles instituted a hearth tax of s. per year in , with constables and offiers authorized to verify the number of hearths and stoves in houses. it was repealed in because it could not be enforced except by exposing every man's house to be entered and searched at pleasure by persons unknown to the people, which was oppressive and a badge of slavery. by bribes, charles built up a body of support in parliament which could be relied upon for a majority. they came to be called "tories" by their opponents. "tory" had been a term of abuse for irish catholic bandits. the tory and whig groups were known by their disagreement over the authoritarianism of the crown. the tories were sympathetic to the doctrine of divine right and favored a doctrinally high church. the tories represented landed property and the established church, and usually wore blue in contrast to the purple of royalty. many royalists became tories. the whigs refused to accept the sacrosanct character of the monarchy. the whigs opined that government depended upon consent of the people and that the people had a right of resistance. they subordinated the crown to parliament. the whigs represented the dissenters and the mercantile classes, and often wore red. many former puritans became whigs. "whig" had been a term of abuse for scots presbyterian rebels and horse thieves. the gout and venereal disease were common among political leaders. a primitive condom just introduced to the aristocracy from france helped deter syphillus; it was uncomfortable and unreliable. under charles ii, the treasury as a supreme financial body separated from the exchequer as a depository of revenue. a gold guinea coin was issued. from , government policy was controlled by specific appropriations. money bills had to originate in the commons, and could not be amended by the house of lords. boards became independent of the king's privy council and answerable to the secretary of state. in the s, charles compelled some of the livery companies in london to give up their charters to him and he called in many corporation charters of boroughs whenever some light excuse could be found to justify it. this was done by the use of the writ of quo warranto before a court. in london he had the tory mayor revive an ancient custom of selecting a sheriff by drinking to him at the annual feast. two tory sheriffs were installed into office. all these actions gave the king a voice in selection of the officers of london and boroughs, since royal commissioners would then determine who the officers would be. this was to assure london's representation in parliament by crown loyalists as london had been whig. it also allowed influenced selection of sympathetic jurors. criminal seditious libel was brought into the common law courts in , when benjamin keach was tried for writing a book containing contradictions of the doctrine of the established church. he wrote against infant baptism and asserted that laymen might preach the gospel. the justice intimidated the jury to find him guilty. he was sentenced to be fined, to spend two hours in the pillory in two successive weeks, and his book to be burned before his face. he was to be imprisoned until he found sureties for his good behavior and renunciation of his doctrine and for his future appearance in court. juries were loath to find anyone guilty of seditious libel. james ii succeeded charles ii to the throne and fostered roman catholicism by appointments and by attempting to suspend laws unfavorable to catholics. he commanded all bishops to read in the churches his declaration of indulgence exempting both catholic and protestant dissenters from all penal statutes based on religion. seven bishops refused to obey and jointly petitioned him, stating that his action was illegal according to parliament. he prosecuted them for seditious libel in the petition. the jury found them not guilty. james discharged the two justices of the five who had rejected the seditious libel doctrine which had been created by the star chamber court. this roused the whigs and tories in turn to discharge him by joining in inviting protestants william of orange and mary to take the throne in his place. james was effectively chased out of england by william's advancing army in the glorious revolution of - , which took away the powers of final authority from the king, but without transferring them to any other body. a "bill of rights" stated that . the king may not suspend laws or dispense with them without consent of parliament. . the establishment of a court of commissioners and like bodies for ecclesiastical causes is illegal. . the king may not levy money or extend an authorized levy without consent of parliament. . subjects have a right to petition the king without prosecution. . the king may not raise or keep a standing army within the country in time of peace without the consent of parliament. . protestants may have arms for their defense as allowed by law. . the elections of members of parliament should be free. . the freedom of speech or debates or proceedings in parliament should not be impeached or questioned in any court or place outside of parliament. . excessive bail should not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted (so no more men were whipped to death) . jury selection should not be tampered with, and jurors who try men for high treason should be freeholders. . all grants and promises of fines and forfeiture of particular persons, before conviction, are illegal and void. . parliament should be held frequently for redress of grievances and for the amending, strengthening, and preserving of the laws. . all protestants may freely exercise their religion and the king will maintain the protestant religion and the law and liberty of the realm. the right of the peoples' representatives to select and depose the king and to change the order of succession was established. there was no divine right or hereditary right to the crown. an english monarch was created by an act of parliament. the king still called and dissolved parliaments, except that parliament continued for six months after the death of a king. from , parliament sat every year. freedom of speech for members of parliament was established by a resolution overturning a king's bench felony conviction of sir john elliot. by the act of settlement of , no officer or pensioner of the king could be a member of parliament. all resolutions by the privy council had to be signed by the members consenting to them. no one born outside the realm could be a member of the privy council or of parliament, or could have any civil or military office or place of trust, or any grants of land or tenements from the king. justices served during good behavior instead of at the pleasure of the king. after the glorious revolution, tories tended to accept of the whig principles of limited constitutional monarchy instead of rule by divine right. under william and mary, the ministers were first chosen by them but could be impeached by the commons and then removed by the parliament. the commons removed anyone who disagreed with them as soon as he made a mistake. but the king could pardon anyone convicted by parliamentary bill of attainder. this was inconsistent, so no one was allowed to plead pardon by the king in an impeachment by the commons. thus parliament gained control of who would be ministers. the glorious revolution favored the capitalists and the commercial magnates even though it had been started by the landed families, with whom they now intermarried. there were companies in the fishing, silk, baize [a coarse wool], sugar, rope, paper, iron, hardware, gunpowder, saw milling, and pottery trades. the largest pottery workshops employed about six men. one man shaped the pots, another made the handles and put them on, while the others did the decoration, the glazing, and the firing. new companies could be formed without royal or parliamentary consent. there were no more commercial monopolies. regulated companies declined. the merchant adventurers lost their last monopoly privileges; their entrance fees were abolished. their method of limiting the volume of their exports of english cloth to germany to keep up prices was obsolete. now they tried to capture the market by selling cheap. there were more joint-stock companies and on a larger scale. they also no longer restricted output to keep prices high, but geared to export many inexpensive goods. the stock exchange was incorporated about . the domestic or "putting out" system came into use. in this system, the worker usually owned his own machinery and the capitalist owned the material, which he put out to the worker at home. the merchant manufacturer bought raw wool and had it carded, spun, woven, fulled, and dressed at his own expense. some farmers became spinners in the winter when outside work was impossible. the manufacture of nails was also done by this system. accordingly, the guilds and municipal corporations in towns ceased to control the recruiting, conditions of work, and pay of industries. new industries for the manufacture of silk, paper, and cutlery were organized on capitalist lines rather than being subject to guilds. that is, production was controlled by men with money and the means of manufacture. only a quarter of towns had any organized guilds at all. growing birmingham was not a chartered borough, so never was encumbered with guild regulations. the guild and apprentice regulations were effectively enforced only in agriculture. artisans became known as tradesmen. work was usually irregular, some seasonal. in bad years, when a worker had to borrow money, he used work tools, such as his loom, as security. in this way, work tools often became the property of a merchant. some merchant clothiers also owned a fulling mill and a shop where it was sold. the capitalists first became owners of the materials, then of the implements, and then of the work places. but production was still confined to the known wants of its habitual market. men used to working at home were generally not inclined to go to work in a factory. so there was an assortment of unskilled factory labor, such as country people driven from their villages by the growth of large estates, disbanded soldiers, and paupers. they had to be taught, trained, and above all disciplined. in , vauxhall glass works were opened with workmen brought from venice to blow their fine glass and make mirrors. the capitalist organization of the mining, glass manufacture, salt, soap, wire and other monopolized industries was made possible only by government support. from the mid- s to , coal production increased fourteen times. sir ambrose crowley, an iron maker with coal works, established disability and medical benefits and pensions for his workers. smiths used trip hammers powered by water mills which turned an axle with cams on it. they made iron gates, fences, balconies, and staircases with hammer, anvil, and chisel. cast iron was made by running liquefied metal into molds. this was harder but more brittle than the tough but malleable wrought iron. tinkers went from house to house to repair metal items such as pots and pans. salt and glass manufacture expanded. glass drinking vessels were in common use. mirrors of blown plate glass were manufactured in england. some plate glass by casting was imported. plate glass was a large and strong glass piece, which was formed by the liquid glass being poured on a table. this glass was not distorted, so mirrors could be made perfectly reflective. then plate glass for coaches, mirrors, and windows became manufactured in england; this new industry was organized on capitalist lines. the east india company had about half the trade of the nation. its shares were frequently bought and sold. it responded to anger over its semi-monopoly status by granting liberty to all english subjects below the age of forty to live in its indian settlements and to trade practically everywhere. bombay, india became subject to the east india company. charters gave the east india company the right to coin money, to exercise jurisdiction over english subjects, to levy taxes, to build and command fortresses, to command english and indian troops, to make peace and war, and to enter into alliances with indian rulers. the company always paid high dividends and the market price of its shares generally rose. pound stock was worth pounds in , pounds in , pounds in , and even up to pounds in , and pounds in . in a new charter for the company included loss of monopoly status by resolution of the commons. with this resolution, parliament assumed the right of regulating commerce, now no longer the king's province. thereafter the commons regulated trade with india and determined who could participate in trade there. political issues developed, which initiated corruption at elections by entertainment and bribes to candidates, which was later proscribed. the trade opened up to many more traders and investors. ordinary investors came to include women and quakers. when there was a surplus of grain, it was exported. about , the king set up a board of trade of eight paid members and great officers of state, who nominally belonged to it, and a staff. this was to achieve a favorable balance of trade. for instance, it imposed tariffs to protect internal markets and put restraints on imports of goods producible in the country, e.g. live cattle, dairy products, and woolen goods. it also restricted the export of raw wool. england led the way in protectionist measures. exports included grain, silk, metal wares, foodstuffs, lead, and tin. cloth and manufactures were exported to america. dyeing and dressing of cloth became the norm and undressed cloth exports fell sharply. imports included linen, flax, hemp, timber, iron, silk (raw, thrown, and woven), wine, brandy, fruit, coffee, chocolate, cauliflower, and oil. from america came molasses, sugar, tobacco, and dyes. the east india company imported calico, silk, pepper, spices, china tea, potions, and saltpeter. tonnage of english shipping doubled by . exports and imports increased % by . parliament required an oath of allegiance to the new sovereigns william and mary from all those in public functions, including the clergy. by extending this rule to the clergy, parliament asserted a supremacy of parliament over the church. it also asserted a supremacy over the king by requiring all monarchs to take a coronation oath promising to govern according to the statutes, laws, and customs of parliament, to make judgments with law and justice in mercy, and to maintain the protestant religion established by law. drinking of gin, which had first been made by a flemish physician, became popular under king william, who was dutch. the year of his accession, the gin monopoly ended. england competed with other nations for land in the new world. carolina, named for charles ii, was colonized for commerce in . the episcopal church, an analogue of the church of england, was established there by law. the whole coast became english after war with the netherlands gave new york, named for charles ii's brother the duke of york, and new jersey to england in . presbyterians and baptists fled from religious tests and persecutions in england to colonize new jersey. for free passage to the english colonies, people became indentured servants, agreeing to serve the master of the ship or his assigns with a certain kind of labor for a term of a few years according to a written contract made before departure. also, various statutes made transportation to any part of america to the use of any person who will pay for his transportation, for a term of years, usually seven, a new possible penalty for offenses. in , harvard college was founded in new england to advance literature, arts, and sciences, as well as to train ministers. in , quaker william penn, son of an admiral, founded the colony of pennsylvania for quakers in a "holy experiment" in political and religious freedom. the king had granted proprietary rights to this land to him to discharge a crown debt to his father. when penn refused to take off his hat before king charles and asked why charles took off his own, charles, unruffled, replied that "it's the custom of this place that only one man should remain uncovered at a time". the pennsylvania charter of went beyond magna carta and england's law in guaranteeing right to counsel and giving a right to defendants to summon witnesses in all criminal cases. it gave penn absolute authority and he established liberty of conscience (freedom of religion) and freedom from arbitrary arrest. in , some quakers founded a small hospital in pennsylvania as an asylum for the insane, where they would be treated humanely. proprietary colonies, in which an individual or syndicate held under the crown a sort of feudal overlordship, were founded in america: namely, virginia, maryland, carolina, new york and new jersey in , and pennsylvania and delaware in . new hampshire was made a royal province in to cut off the expansion of massachusetts, which had been avoiding the trade laws. these colonies were distinguished from the corporate colonies of massachusetts, plymouth, connecticut, and rhode island, which made their own arrangements for internal government without a royal executive. charles persuaded the chancery court to declare the charter of massachusetts void; it was given a new charter in which made it a royal province. new york was made a royal province in . maryland's proprietor gave way to a royal governor in . soon all colonies except rhode island, connecticut, pennsylvania were royal provinces, with governors nominated by the crown. this bringing of union to the colonies was done for maintenance of order, to coordinate defense, and to enforce trade laws. in , the hudson's bay company was incorporated to engage in fur trade with indian trappers in the hudson bay and to find a northwest passage to china. in the founding of the "society for the propagation of the gospel in foreign parts" by the church of england created many missionaries in the colonies, where they called their churches "episcopalian". increase mather and his son cotton mather were puritan ministers in boston. increase was for a time the president of harvard college and participated in obtaining the new charter of massachusetts of . he and his son tried to maintain the principles of the puritan founders of massachusetts, which included the theories of diabolical possession and witchcraft. but the thought of presbyterians, anglicans, and baptists became influential also. in in the small town of salem, massachusetts, some hysterical girls showing strange spasms and sounds charged they had been bewitched by certain other residents. victims were deluded, flogged, or tortured into forced confessions and then excommunicated from the church. they were then hanged and their property confiscated. one man endured being pressed to death for refusal to plead so that his property would be inherited by his family rather than confiscated. eventually, some prominent citizens including judges were accused. then the more thoughtful people began to doubt the whole phenomenon and admitted error. the excommunications were revoked. cotton mather came to accept newton's science and advocated inoculation. he encouraged puritanism into a simpler piety and charity. this influenced american protestantism toward a generalized concern with good works, morality, and social leadership. - the law - any sale of land or lease or estate of freehold or copyhold shall be in writing and signed. an interest in land given orally shall have only the force of estates at will. all contracts for sale of goods or merchandise for the price of at least pounds shall be in writing and signed by the parties or shall be accompanied by part payment or partial acceptance of the goods. this is to deter fraud. this statute caused many small freeholders, including yeomen, who paid rent by custom to be dispossessed. mortgagees can hold the land of any mortgagor who borrows money upon security of the land or obtains another mortgage without prior notice to the initial mortgagee. the mortgagor has six months to pay off the mortgage and all interest and charges or vacate the land and lose his equity therein. but a widow's dower will not be affected if she did not join with her husband in the mortgage. if rent is not paid in a reasonable time, the renter's goods and grain may not only be distrained, but sold. one coparcener of a joint tenancy or tenancy in common may have a court partition the property without the presence of other coparceners, because such coparceners are often difficult to find. this is to avoid wasting of land lying uncultivated and unmanured. after the intestate death of a father of any sons or daughters without wives or children of their own in the life time of their mothers, the mother and every brother and sister shall share equally except the customs of london and york shall not be affected. administrators have to make an inventory. they have to account on request by an interested person. they must be bonded by two sureties. executors and administrators of estates of deceased persons must pay the debts of the deceased person rather than waste or convert the goods and chattels to their own use. creditors may recover their debts from heirs or devisees of the will of a debtor. men gone beyond the sea who could not be accounted for were deemed dead after seven years, so their life estates could be terminated. whereas lawful games are not to be used as constant callings for a livelihood, and young people are deceived and debauched and their money taken, anyone "winning" money by deceitful or fraudulent gambling shall forfeit three times his "winnings". when a bill of exchange drawn to at least five pounds is not paid on demand at the time it is made payable, the person who accepted it may make a protest in writing before a notary public, which shall be served on the maker of such bill, who must pay it and all interest and charges from the date of the protest. but if a bill of exchange is lost or miscarried, another shall be given in its place. no one may take more than pounds in interest for a pound loan. persons seeking election to parliament may not give or promise money, meat, drink, entertainment, present or gift to any elector. because the gaols were full of people in debt due to the late unhappy times such as the london fire, all prisoners for debt were to be released upon taking an oath that they had no property over ten pounds nor had disposed or conveyed property to defraud creditors. creditors not wanting them released had to contribute to their maintenance in gaol. the making or selling of fireworks is forbidden or forfeit pounds. firing or throwing such from one's house onto or across the street is a common nuisance with a penalty of s. this is to avoid the loss of life and of eyes. treason to the king is to compass, imagine, or intend death or any bodily harm tending to death, or maiming or wounding, or imprisonment, or restraint as well as trying to depose him or levy war against him. also included is printing, writing, preaching, or malicious speaking. traitors shall suffer death and forfeiture as in high treason. any malicious and willful burning or destroying of stacks of hay, grain, or barns, or killing any horses, sheep, or cattle at nighttime shall be felony and punished by transportation to the american colonies for seven years. any person apprehending a thief or robber on the highway will be rewarded pounds from the local sheriff, to discourage the many robberies and murders which have made travel dangerous. also, executors or persons murdered while trying to apprehend a robber shall have the reward. no more than people may petition the king nor more than people may assemble to present a petition to the king, because more has been tumultuous and disorderly. anyone may without fee set up a hemp business including breaking, hatchelling [separating the coarse part and broken pieces of the stalk from the fine, fibrous parts by drawing the material through long iron teeth set in a board], and dressing it or flax; making and whitening thread, spinning, weaving, making, whitening, or bleaching hemp or flax cloth; making twine or nets for fishing or stoveing of cordage; or tapestry or hanging because the daily importation of such has in effect taken the work from the poor and unemployed of england. retailers of wine may not add to imported wines cider, honey, sugar, molasses, lime, raisin juice, or herbs. butter sold must be of one sort and not contain bad butter mixed in with good butter. butter pots must bear the name or mark of their potter. salt may be sold only by weight, to avoid deceit by retailers and wrong to buyers. no sheep, wool, woolfels, shearlings, yarn, fuller's earth, or fulling clay may be exported as has secretly been done, so that the poor of the realm may have work. fishermen may sell their fish to others than fishmongers at billingsgate fish market because the fishmongers have forestalled the market and set their own prices. the buyers of such fish may resell them in any other london market by retail, except than only fishmongers may sell in shops or houses. no tanned or untanned skin or hide of any ox, steer, bull, cow, or calf may be exported because the price of leather has risen excessively and leather workers can't get enough raw material to carry on their trade and because poor people cannot afford leather items they need. the newly incorporated company of silk throwers (drew the silk off the cocoon) employs many of the poor, but others practice the trade, so an apprenticeship of seven years is required to practice the trade in the realm. winders or doublers who purloin or embezzle and sell silk from the thrower who employs him and the buyer of such silk shall make such recompense as ordered by a justice of the peace or be whipped or set in the stocks for the first offence. the regulation of the silk throwers company restricting the number of spindles to be worked at one time is voided because it has taken livelihoods away and caused foreign thrown silk to be imported. buttons on garments must be made of silk, mohair, gimp, and thread and by needle to keep employed the many throwers, twisters, spinners, winders, and dyers preparing the materials for these buttons. no button may be made of cloth or wood. no tobacco maybe grown in england because the colonies would be discouraged from growing it and the king would not receive customs from it. no goods are to be imported to or exported from america, asia, or africa except in english ships, with masters and / of the mariners englishmen. no manufacture of europe may be imported into any colony or territory except shipped from england in english ships manned by englishmen. as of , if bond is not given for colonial exports of sugar, ginger, tobacco, cotton, indigo, cacao nuts, or fustic [tree that yields a yellow dye] and other dye- woods going to england, a duty must be paid. as of , no colonial goods are to be imported or exported or carried from from one colony to another, except in ships owned and built in england, ireland, or the colonies with the masters and three fourths of the mariners from such places. these navigation acts were strictly enforced. only persons with lands and tenements or estate worth over pounds per year or having a lease of at least years worth pounds per year and owners and keepers of forests or parks may have any guns, bows, greyhounds, hunting dogs such as setting dogs, snares, or other hunting equipment. these persons may kill hare, pheasants, partridges, and other game. gamekeepers authorized by justices of the peace may search houses and outhouses and seize unlawful hunting equipment. if hunting equipment or game is found in a house without good account to the justices of the peace, they shall impose a fine of s. to s., one-half going to the informer and one-half going to the poor of the parish. anyone killing, hurting, or taking away deer from any forest or park or other ground without consent of the owner or custodian shall pay a pound fine. this was later increased to pounds for hunting deer and pounds for wounding or killing deer, with the pillory for one hour on market day and gaol for a year without bail for those who couldn't pay. any person privately and feloniously stealing any goods, including horses, by day or night, in any shop, warehouse, coach stable, or stable, whether there is a break-in or not, and whether or not the owner is present, or anyone assisting or hiring such person may not have benefit of clergy. any person who apprehends and prosecutes such person is discharged from parish and ward offices. an offender being out of prison who informs against two other offenders who are convicted is to be pardoned. any person convicted of theft or larceny and having benefit of clergy is to be burnt in the cheek nearest the nose instead of on the hand. army officers or soldiers who desert or mutiny shall suffer death or such other punishment as decided by a court martial of senior officers rather than the usual form of law, which is too slow. seamen not showing up on board after notice shall serve six months without pay, but shall not suffer as deserters. seamen do not have to perform service in the army. pirates may be punished by death and loss of all lands and chattels. any person aiding, advising, or concealing pirates may be likewise punished. officers and seamen killed or wounded in the defense of a ship or who seize or destroy pirates may be paid by the owners an amount up to pounds per pounds of freight as determined by a group of disinterested merchants and the judge. the amount due to a man killed will be paid to his widow and children. this is to be done when the ship arrives in port. any person who informs of any combinations or confederacies planning to run away with or to destroy a ship shall be rewarded by the commander or master of such pounds for a ship tons or under, and pounds for a ship over tons. the trial may be in england or the american colonies, whose authorities may issue warrants for arrest of alleged pirates. deserters from ships, because they often become pirates, shall forfeit all wages. masters forcing any man fit to travel to stay or shore or willfully leaves him behind shall suffer three months in prison without bail. persons may mine for ores on their own land, but must turn it over to the king who will give compensation for it, including gold, silver, copper ( pounds per tun), lead ( pounds per tun), tin ( s. per tun), and iron ( s. per tun). the fine for having, buying, or selling clipped coins is pounds, one-half going to the informer, and one-half going to the king. the offender shall also be branded in the right cheek with the letter "r". he shall be imprisoned until he pays the pounds. no hammered coins are lawful. anyone except a smith in the king's mint making tools or presses or other machines that can make counterfeit coins or having such which were stolen from the mint shall be guilty of high treason. by statutes of and , when goods have been carried off ships without customs being paid, the chief magistrate of the place where the offense was committed or the adjoining place, or the lord treasurer, or a baron of the exchequer may, upon oath, issue out a warrant to any person to enter, with the assistance of a sheriff, constable or other public official, any house, shop, cellar, warehouse, or room in the day time where the contraband goods are "suspected to be concealed", and in case of resistance, to break open doors, chests, trunks, or other packages and to seize such goods, provided that if the information whereupon any house is searched proves to be false, the injured party shall recover his full damages and costs against the informer by action of trespass. this was extended to the colonies in . the penalty for cursing or swearing by a servant, day laborer, soldier, or seaman is s. for others, it is s. the fine is doubled for the second offense, and tripled for the third offense. if an adult offender can't pay, he shall be put in the stocks for one hour. if a child offender can't pay, he shall be whipped by the constable or by a parent in the presence of the constable. the equity courts are conceding limited proprietary rights to married women by enforcing premarital settlements or trust arrangements that designated certain property as a wife's separate estate and exempted it from control by the husband. such protective devices generally reflected a father's desire to shield his daughter from poverty and benefited only the landed aristocracy in practice. also, husbands are not allowed to punish and beat their wives as before. but the lower rank of men were slow to give this up. a wife could have the security of the peace against her husband. he could restrain her liberty only for gross misbehavior. in , the courts ruled that apprenticeships were necessary only for servants hired by the year, thus exempting most wage laborers. there were many variations in religious practices for statutes to address. the quakers and baptists were opposed to any state church. the independents and presbyterians accepted the idea of a state church. the members of the established church and roman catholics adhered to the state church as it had been for them in the past. atheism had a bad reputation. in , the jews established the first synagogue in london. the privy council recognized their religious status as long as they were peaceful and obeyed the laws. they engaged in pawn-broking as well as money-lending. there were various statutes enacted over the course of time regarding religion, as follows: all ministers, school teachers, mayors and other town officials, including magistrates, were required to take the oaths of allegiance and supremacy [of the king over the church] or be removed from office. a great number of people refused to come to their parish church or other public place where common prayer and sacraments were administered and the word of god was preached according to the established church. the morning and afternoon sunday services with sermons, sometimes by guest preachers, continued. so factions and schisms developed. in response, the king changed the book of common prayer and its prayers were required by statute in to be read by some priest or deacon in all the churches and places of public worship wherever and whenever there was any preaching or lecturing. attendance at one's local parish church was never again required. as of , no nonconformist minister, i.e. one who endeavored any alteration of government either in church or state, was allowed to live or visit within five miles of any corporate town or any place where he had acted as minister or forfeit pounds. persons not frequenting the established church were not allowed to teach in any public or private school or forfeit pounds. by statute of , anyone at least sixteen years old who is present at any assembly, conventile [private meeting of religious dissidents to pray and expound scripture], or meeting under pretence of any exercise of religion in other manner than according to the established church of england at which there are at least five persons present shall be fined s. for the first offense and s. for the second offense. (this does not include members of the same household meeting in their home.) anyone who preaches or teaches at such a meeting shall pay pounds for the first offense, and pounds for further offenses. the householder who permits such a meeting shall pay pounds. a justice or justice of the peace or chief magistrate may break open doors and enter by force any house or other place where they have been informed of any such meeting and take persons there into custody for prosecution. this is to discourage the growing of dangerous seditious persons under pretence of tender consciences. religious nonconformity continued especially among the humble people. the penal statutes caused hundreds of these nonconformists to be put in gaol. from time to time, the king would release them and suspend these laws. sometimes, charles ii allowed dissenters to meet in private for worship if they got a license from him. religious gatherings grew in numbers, size, and geographical extent. dissenters were then allowed by statute to meet behind locked or barred doors. but they had to pay tithes and could be prosecuted in the ecclesiastical courts for not doing so. by statute, all congregations and assemblies for religious worship had to register with the local bishop or archbishop. disturbers of religious worship were required to find two sureties for the amount of pounds. attendance at the established church of england was never again required. nor was preaching or lecturing constrained. instead, a statute was passed in that: every person shall be pious and exercise religion publicly and privately on sunday. no work may be done or goods sold or forfeit s. or the goods respectively. no one may travel or forfeit - s. in a further statute of , because some ease to scrupulous consciences in the exercise of religion may be an effectual means to unite protestant subjects in interest and affection, protestant nonconformists who took the oaths (or declaration in the case of quakers) and a declaration that they were not catholic, did not adore the virgin mary or any saint, and did not go to mass were declared not liable for punishment in any ecclesiastical court by reason of their nonconformity to the church of england, except protestant dissenters meeting behind locked doors. but payment of tithes and performance of parish duties were still obligatory. non-conformist preachers had to subscribe to the tenets of belief listed in the first eighteen articles of religion, but were exempted from the articles on expounding inconsistencies in scripture, the traditions of the church, homilies, and consecration of bishops and ministers of the elizabethan statute and the statute on uniformity of prayers and sacraments of charles ii. quakers were active in the countryside. they were about one tenth of the population and did not believe in a state church. there were some quakers schools and some quaker workhouses to give work to the poor. for the reason that they met together in large numbers to the great endangering of public peace and safety and to the terror of the people, and because they had secret communications and separated themselves from the rest of the people and from the usual places of worship, a statute was passed in , that any quakers who assembled to the number of five or more under the pretense of unauthorized religious worship and any person maintaining that taking an oath before a magistrate was unlawful and contrary to the word of god or refusing to take a required oath was to forfeit pounds for the first offence or be imprisoned for months if he couldn't pay. for the second offence, the penalty was pounds or imprisonment for months with hard labor. the third offence required abjuring the realm or being transported to a plantation of the king beyond the seas. the policy of charles ii was to allow quakers to meet undisturbed, to keep their hats on before magistrates, and to not come to the parish church. but this policy was only partially adopted in the country. from , by statute, the quakers were allowed to affirm or declare instead of making the customary oath. many presbyterians became unitarians, who rejected the trinity of "father, son, and holy ghost" and doubted the divinity of jesus, but accepted revelation. this statute was then passed in : any person having been educated in or having at any time made profession of the christian religion who, by writing, printing, teaching, or advised speaking, denies the holy trinity, asserts that there is more than one god, or that the bible is not of divine authority, shall be disabled for any ecclesiastical, civil, or military office. the penalty for a second offense is being disabled from suing or pleading any action in any court, being guardian of any child, or executor or administrator of any estate, or receiving any legacy or deed of gift and imprisonment for three years without bail or mainprize. catholicism was always disfavored. catholic priests were executed with little evidence. at times, charles commuted the death penalty for them to banishment. sometimes there were effigies of the pope burned in the streets. such burnings were later banned. at times charles allowed catholics to attend mass. by statute of , all civil and military officers and king's officials must take the oaths of supremacy and allegiance and take the sacrament of the established church of england or be incapable of office. they also had to make a declaration that they believed that there is not any transubstantiation in the sacrament of the lord's supper, or in the elements of bread and wine, when they were consecrated. this is to prevent dangers from papists. as of , no one may be a member of parliament if he has refused to take the oaths of allegiance and supremacy and the declaration that they were not catholic, did not adore the virgin mary or any saint, and did not go to mass. papists were made to pay higher taxes. every temporal and spiritual person, corporation, and guild had to pay taxes to subsidize the king in the amount of s. d. for every pound's worth of personal property and money. but papists had to pay s. d. for such. persons and corporations having land worth at least s. yearly, had to pay s. for every pounds' worth. but papists and aliens had to pay s. for such. but charles' sucessor, king james ii was catholic and gave many offices to catholics. this prompted a reaction against papism and more statutes restricting them. after james ii was chased out of england, a statute of required suspected papists in london to make a declaration that they were not catholic, did not adore the virgin mary or any saint, and did not go to mass, or stay ten miles outside of london, excluding tradesmen and manual workers, sho must only register. all papists had to forfeit their arms and any horse worth more than pounds. also, no monarch or spouse of such could be a papist, but must make the declaration as members of parliament, and join in the communion of the established church of england. as of , a person who is serjeant at law, counsellor at law, barrister, advocate, attorney, solicitor, proctor, clerk, or notary must take the oath of supremacy and allegiance. as of , papists who kept a school or tried to educate the young were threatened with perpetual imprisonment. also, popish parents were prohibited from forcing their children inclined towards protestantism to become catholic by refusing them suitable maintenance. as of , a reward of pounds was offered to any person who apprehended a popish bishop, priest, or jesuit saying mass. also, no papist may buy land. - judicial procedure - as of , no man could be held in prison but on a charge or conviction of crime or for debt. every prisoner on a criminal charge could demand as a right from the court of the king's bench the issue of a writ of "habeas corpus" which bound his gaoler to produce the prisoner and the warrant on which he was imprisoned for review as to legality. this forced trials to be speedy, which they had not hitherto been. now it was impossible for the crown to detain a person for political reasons in defiance of both parliament and the courts, as charles i had done. the writ was suspended in times of war and domestic unrest: , , . in , william penn was arrested for sedition for delivering a sermon in london, contrary to the statute that only the church of england could conduct meetings for worship. the jurors would not convict him, so were gaoled and fined by the justices. the jurors filed a writ of habeas corpus in the court of common pleas, which held in their favor. thereafter the english jury had full independence to decide to verdicts. by court decision of , jurors were held not to be responsible to the justice for their verdict. after , hearsay was inadmissible as evidence, which coke had recommended. the old system of original writs was abandoned, and the general concept or a wrong to person or property took its place. a person who was sergeant at law, counselor at law, barrister, advocate, attorney, solicitor, proctor, clerk, or notary in the courts had to take the required oaths of allegiance and supremacy. as of , persons outlawed could appear by attorney as well as in person to argue reversal of such outlawry, except in cases of treason and felony. as of , persons accused of high treason where there might be corruption of the blood or for misprison [concealing knowledge] of such treason had to be taken before a grand jury for indictment within three years of the offense. those indicted or outlawed for such were given a copy of the whole indictment, but not the names of witnesses, at least five days before trial in order to prepare their defense. they could have a copy of the panel of jurors at least two days before trial. they could be represented in their defense by not more than two counsel learned in the law and assigned by the court. their counsel had free access to them at all reasonable hours. they could make proof through lawful witnesses under oath. in a trial of commoners for their lives, a jury of twelve freeholders had to all agree on acquittal or conviction. in a trial of a peer, the others peers in parliament determined the outcome by a majority vote. jurors were required to have at least pounds income from freehold land or rents in fee, fee tail, or for life. this increase in the quality of the jury enabled it to better discern the issues in dispute. jury sympathy was determined by the sheriff who chose the jury. so if a sheriff was popularly elected, as in london, he chose jurors who favored individual and corporate liberty. if the king selected the sheriff, he chose tories, who supported the crown. issues of bastardy or lawfulness of marriage had to be tried by a jury. trespass on the case has now branched into assumpsit, trover, deceit, negligence, and libel and slander. the latter supplements bad words punished by the local courts and defamation punished by the church courts. trover becomes the normal mode of trying the title to moveable goods as the courts oblige the defendant to answer the charge of conversion without permitting him to dispute the loss and finding. this is an example of a writ for trespass on the case: the king to the sheriff &c. as in trespass to show: wherefore (e.g.:___) he fixed piles across the water of plim along which, between the humber and gaunt, there is a common passage for ships and boats, whereby a certain ship, with thirty quarters of malt of him the said a, was sunk under water, and twenty quarters of the malt of the price of one hundred shillings perished; and other wrongs &c. as in trespass. this is an example of a writ for trespass on the case in assumpsit: the king to the sheriff greeting &c. as in trespass to show: wherefore whereas he the said x undertook well and competently to cure the right eye of the said a, which was accidentally injured, for a certain sum of money beforehand received, he the same x so negligently and carelessly applied his cure to the said eye, that the said a by the fault of him the said x totally lost the sight of the said eye, to the damage of him the said a of twenty pounds, as he saith, and have there &c. wherefore whereas he the said x undertook to make and build three carriages for conveying victuals of him the said a to parts beyond the sea for a certain sum of money beforehand received, within a certain term between them agreed; he the said x did not take care to make and build the carriages aforesaid within the term aforesaid, by which he the said a hath wholly lost divers his goods and chattels, to the value of one hundred marks, which ought to have been conveyed in the carriages aforesaid, for want thereof to the great damage of him the said a as it is said: and have there &c. this is an example of a writ for case on indebitatus assumpsit: the king to the sheriff &c. as in trespass to show: for that, whereas the said x heretofore, to wit (date and place) was indebted to the said a in the sum of for divers goods wares and merchandises by the said a before that time sold and delivered to the said x at his special instance and request, and being so indebted, he the said x in consideration thereof afterwards to wit (date and place aforesaid) undertook and faithfully promised the said a to pay him the said sum of money when he the said x should be thereto afterwards requested. yet the said x, not regarding his said promise and undertaking but contriving and fraudulently intending craftily and subtly to deceive and defraud the said a in this behalf, hath not yet paid the said sum of money or any part thereof to the said a (although oftentimes afterwards requested). but the said x to pay the same or any part thereof hath hitherto wholly refused and still refuses, to the damage of the said a of ------ pounds as it is said. and have you there &c. this is an example of a writ for case for trover: the king to the sheriff greeting &c. as in trespass to show: for that, whereas the said a heretofore to wit [date and place] was lawfully possessed as of his own property, of certain goods and chattels to wit, twenty tables and twenty chairs of great value to wit of the value of ___ pounds of lawful money of great britain; and, being so possessed thereof he the said a afterwards, to wit (date and place aforesaid) casually lost the said goods and chattels out of his possession: and the same afterward, to wit (date and place aforesaid) came into the possession of the said x by finding; yet the said x well knowing the said goods and chattels to be the property of the said a and of right to belong and appertain to him, but, contriving and fraudulently intending craftily and subtly to deceive and defraud the said a in this behalf, hath not as yet delivered the said goods and chattels, or any part thereof, to the said a (although often requested so to do) but so to do hath hitherto wholly refused and still refuses; and afterwards to wit (date and place aforesaid) converted and disposed of the said goods and chattels to his the said x's own use, to the damage of the said a of ____ pounds as it is said; and have you there &c. the rigid writs with specific forms of action for common law cases start to fall into disuse. later, trespass on the case bifurcates into misdemeanor and the tort of trespass. persons in prison on suspicion of treason could not be released on bail as of . if one of several defendants of a case was acquitted, all defendants recovered their costs from the plaintiffs. a person found guilty of malicious prosecution recovered his costs from his accuser. mercantile cases were decided in light of mercantile custom rather than according to the strict rules of the common law. merchants and traders could settle their trade disputes by arbitration, which decision could be enforced by court order. after the restoration, all legal decisions of the commonwealth and protectorate were confirmed subject to a right of appeal. the star chamber was not restored, and parliament assumed its control of the press. the king's bench succeeded to most of the star chamber's jurisdiction. no longer could the privy council influence criminal cases and the general supervision of legal processes through the star chamber. the high commission court was not restored, but church courts were, but with depleted powers. they accepted subordination to the common law courts. because the church's administration was inefficient and corrupt and its punishments inadequate, they gradually lost their power to the common law justices and justices of the peace. they had virtually no authority over laymen. they could still punish heresy, but lost jurisdiction over the law of libel and slander, which then were transformed by the civil courts, and over prostitution and scandalous lewdness. local ordinances for suppression of brothels, which were run by madams, were founded on breach of the peace. in , the death sentence was taken away from the church courts. in , church sanctuary was abolished. the county courts faded into insignificance, as the justices of the peace took on more jurisdiction. in , new justices were issued patents with "at pleasure" instead of "during good behavior" describing their tenure. charles ii and james ii frequently dismissed justices not favorably disposed to the crown. in , they were to have fixed salaries instead of the profits of justice. by statute of , justices' commissions were to be made with an established salary determined by parliament and a tenure to last during good behavior. they could be removed only by the address of both houses of parliament. this gave them independence from the king. their tenure lasted for the life of the monarch. the chief justice could empower persons by commission to take affidavits from people in the country for court proceedings in westminster. judgments were docketed so they could easily be found e.g. by heirs, executors, administrators, purchasers, and mortgagees. court judgments and fines could be challenged for error only within twenty years. court decisions were still appealable to the house of lords. in , skinner v. east india company held that the house of lords could not exercise original jurisdiction in civil cases between commoners as it had claimed, but retained its appellate jurisdiction. in , the house of lords acquired the new judicial function of hearing appeals from the chancery court by virtue of the case of shirley vs. fagg. any gaol keeper allowing a prisoner to escape in return for money lost his office forever and had to forfeit pounds. the last burning of the occasional burnings of a woman as a penalty for an offense was in . the last bill of attainder, which condemned a person to death, occurred in . the pillory was still in use. benefit of clergy was taken away from those who stole cloth or woolen manufactures from their drying racks or who embezzled military stores or ammunition worth at least s, or stole goods of over s. value from a dwelling house with a person therein put in fear, a dwelling house in daytime with a person therein, or by day or night a shop or warehouse. a statute of gave jurisdiction to naval courts-martial to decide cases at sea, e.g. insubordination; failure to fight the enemy, a pirate, or rebels; not assisting a friend, mutiny, drunkenness, creating a disturbance to protest the quality of the food, quarreling, sleeping on watch, sodomy, murder, robbery, theft, and misdemeanors. usually the penalty was to be determined by the courts-martial, but sometimes death was decreed. in the american colonies, judges were still appointed by the royal governors and paid by the local legislatures. they still served at the pleasure of the king. - - - chapter - - - - times: - - dress was plainer than before. gentlemen wore white linen shirts; waistcoats fitted at the waist and covering the trunk at least; long lawn ties wound around the throat and tied in front with the tails tucked in, knee-length coats that were wide in the skirts and in the sleeve cuffs and having large gold, silver, or bronze buttons which didn't reach to the buttonholes on the other side of the coat; knee breeches of cloth, knitted wool, thread, and silk; and silk stockings rolled up at the knee. some shoes had metal buckles. gold fobs with watches or seals hung from the breeches pocket. the clothes were made of silk, satin, or velvet and often in colors such as yellow, orange, scarlet, blue, violet, pink, and dull slate, and decorated with gold and silver trimmings. a slender sword was worn on the side. short wigs, often powdered with heavily scented white or gray wheat flour, with rolls over the ears with hair tied at the back, were worn for formal occasions. wigs were made of human, horse, goat, or cow hair, or mohair, worsted, silk, or wire. sometimes feathers and cork were also used. the hat was three-cornered, and usually of beaver or dark felt. there was often a rosette or such to show one's political opinion. there were new colors and cuts of dress for every season. by , wearing a sword was just a symbol of gentility. gentlemen often had valets to help them dress. ladies wore fitted full-length dresses held out by hoops with shoulders hidden, sometimes with a laced bodice with stays, and lace at the neck. the waistline fashion fluctuated high and low and in tightness. the dress could be brocade, satin, velvet, silk, etc. some put jewels in their hair and had high elaborate hats with wide brims tilted forward. hair was in ringlets at the side or dressed close to the head with a small top knot covered with a laced cap. they also wore wigs when dressing up, decorated with ribbons and artificial flowers. hooded cloaks were used outdoors and hoods were used for sun or wind. they carried leather purses with gloves at elbow length. both gentlemen and ladies wore cosmetics and face patches and used tooth powders, breath sweeteners, lip salves, and choice perfume. some had false teeth of bone or ivory wired into place. they both had accessories such as fans, handkerchiefs, head scratchers, and elaborately designed snuff-boxes, patch boxes, and perfume containers. both men and women sniffed tobacco snuff but only men smoked. they walked with tall, elegant canes, and women also carried parasols. hats were made of wool and hair of beaver, rabbit, or camel. straw hats were worn in the summer. there were ready-made clothes and shoes, especially for children. night gowns and night caps were worn to bed. about , umbrellas for rain were introduced. they were made of waxed silk or taffeta. all but the poorest wore silk and lace. a prosperous countryman wore riding clothes consisting of breeches and boots, cut-away coat, and low top hat. the highest class were the peers and peeresses of the house of lords and their spouses and families. they were the nobility and held the high political offices, the high ranks in the army and navy, and owned large estates, usually scattered over the country. some were lawyers or merchants. there was much intermarriage among these families. indeed, many a noble family had salvaged its fortunes by marriage to a london merchant. the richest people in london were international merchants. these high class families lived in mansions with four or five living rooms, two to five acre gardens, and stables. the next class were the gentry. their family heads had land and were often justices of the peace. they were sometimes members of the house of commons. the oldest son took over from his father, while the other had to find a living such as in the church, law, medicine, or trade. they usually lived in mansions. the old yeoman class was disappearing due to their selling their land to larger landowners. farming on a large scale was more productive. the next class were the "middling sort". in this class were merchants, lawyers, substantial tenant farmers, smaller freeholders, millers, innkeepers, in town traders, shopkeepers (who now kept their wares inside and lived on the second floor), middlemen, clothiers, ironmongers, goldsmiths, grocers, linen drapers, apothecaries, school masters, clerks and civil servants, and customs and excise men. the town people lived in town houses of two stories plus an attic. the last class were the manual workers. these were wage earners or independent craftsmen, farriers, rural smiths (who shod horses and made stair rails, window-bars, torch extinguishers, lamp irons, bells, bolts, hinges, locks, and fire-grates), sawyers, carpenters, joiners, wheelwrights, nail makers, brick makers, plumbers (made lead cisterns, kitchen sinks, rain-water heads, drain pipes and lead flats for houses and ornaments), thatchers, spinners (silk, flax, hemp, wool, hair), dyers, wool combers, weavers, shoemakers, hat makers, belt and buckle makers, dressmakers, milliners (hats, caps, bonnets, cloaks, hoods, muffs), feather workers, button makers, lace makers, steel pin makers, brewers, cutlery makers, soap makers, candle makers (made from beeswax, fallow, mutton-fat, or beef-drippings), comb makers, barber/hairdressers (shaved, cut hair, made wigs and braids, and let blood), curriers, leather workers, carpet weavers, paper makers, tin-plate makers, printers, enamel workers, braziers and coppersmiths (made kettles, saucepans, canisters, milk pails, lanterns, candle boxes, candle sticks, and lamp lighters), basket makers, jewelers (made rings, perfumes, match boxes, buckles, and tops of canes), watch and clock makers, type founders, letter cutters, trunk and chest makers, cabinet makers, saddlers, coach body builders, coach carriage makers, shipwrights, rope makers, and sail makers. these workers typically worked in their stone or brick houses in a rural setting, with gardens, a cow, a horse, pigs, and poultry around them on - acres. they now ate wheaten bread instead of rye bread, much meat and cheese, and drank tea. these people also worked in the harvesting of grain. some consolidation of work was starting. for instance, the weaver, who had furnished himself with warp and weft, worked it up, and brought it to market himself was being displaced by weavers who worked under supervision for one merchant in a town on looms the merchant had acquired. many women and children were so employed. it was not unusual for a man to work hours a day for days a week. real wages were higher than at any time since the mid- s. the wage earners were well above the subsistence level as long as trade was good. working men could now afford leather shoes and white bread. but eventually, as the employer came to realize how dependent the weaver had become on him, wages tended to fall. in a gloucester weaver, with his wife to help him, could earn, when work was good, from s. to s. a week. a few years later, he could only earn about s. a woman spinner earned - d. a day in , but - d. in . in the same period, men's wages fell from d. to d. a day. only certain workers, whose special occupation needed greater skill, e.g. the wool-combers, whose wool was longer and of better quality than carded wool, and shearers, were better paid. in , wool combers made s. a week; their wage was about the same all over the country because they traveled form town to town in search of work and always supported each other. also in , newcastle miners earned s. a week, sheffield cutlers s. d. a week, a rotherham blacksmith s. a week, a furnace keeper at horsehay about s. a week, a staffordshire potter from - s., a witney blanket weaver or a wilton carpet weaver s. or more a week, a manchester cotton weaver from - s. a week, and a leeds cloth weaver about s. in this class also were ploughmen, cowmen, dairymaids of the bigger farms. they had cottages of wood, clay, and straw, with clay floors and low ceilings, and a divided ground floor. a few had homes built of stone, covered with slate or thatch. wages of industry were higher than those of agriculture. in , a day laborer earned - s. a week in winter and - s. in summer (without board or lodging). in the short harvest time, he could earn s. a week. lastly were the mass of the population of london: hordes of laborers who depended on casual employment and could be dismissed at will. about half the population had no resources but their labor, which was usually unskilled and lowly paid. in good times they had just enough to feed themselves. the gap between rich and poor became greater. marriage remained a main way to wealth. also, one trained in the law could aspire to have a successful career in high political office, which also brought wealth. but there was less social mobility than in the previous century and many landed families were consolidating their position. they expected their oldest son to take and preserve the family estate. industrialists who had made a fortune for example in steel, cotton, coal mining, porcelain, and merchants who wanted to turn themselves into landed gentlemen found it very difficult to buy such estates. old dissenter families, quakers in particular, who were highly esteemed as businessmen, as industrialists, and as model employers were excluded from the anglican landowning society. rich tradesmen, artists, actors, and writers found it difficult to buy substantial houses in the small market towns and countryside because of an entrenched hierarchical atmosphere there that didn't exist in london. the only gentlemen who were in household service were librarians, tutors, or chaplains. they ate with the family and did not consider themselves servants. servants were kept more at a distance. by the s the servant class was clearly defined. their quarters were moved to the basement of the house and they ate together in the kitchen. but some householders still had special occasions when everyone would eat together in the dining room, with the servants at one end of the table. in about one tenth of the population in london had servants. even bricklayers and milk sellers had a servant. most families had just one servant. most wives employed some other woman or child to help in washing and scouring or in the minding of the children. london had grown beyond the locations of its walls around the city. london stretched ten miles along the thames, and was three miles wide in the center. on the east of the city was the port and industry. the west side ended at hyde park and regent's park and was residential. in it was still possible to shoot woodcock in regent street. in , westminster bridge was opened. in , the city walls were taken down to ease congestion. the typical london house, usually brick, was on a rectangular plan and had a basement to utilize all the space possible. there were pictures on the walls which were now more covered with damask, brocade, silk, and wallpaper hung and plain paint than by wood wainscoting. on the first floor was a front hall or parlor and a back parlor. one of these parlor rooms was the most important room, where the family entertained or spent leisure time. in it were sofas, armchairs, and stools of mahogany or white gilded wood. they were upholstered with damask or needlework. imported mahogany was replacing as a favorite the walnut that was usually used instead of oak. much wood was inlaid with a variety of woods. there was also a carved tripod table, china table, card table, and perhaps bookcases and/or tea-table. furniture with original designs made by the cabinet-maker chippendale was available. his genius was in combining various motifs into one harmonious design. cabinet makers had to keep abreast of his standards and to imitate them to conform with their customers' orders. cabriole legs with claw and ball feet came into fashion with queen anne about . between windows were tall mirrors. there were pictures on the walls. from , glass chandeliers hung from the ceiling to reflect candlelight coming from standing candlesticks or glazed hanging lanterns with brass frames. the fireplace had an elaborate mantel. the fire was kept going all day. it was lit by a tender box, which was unreliable. an iron fire-back was behind the fire. the firewood was placed on andirons. fire grates were used from about . at a corner of the building was added a closet. on the second floor was a dining room, continuation of the closet below, and a drawing room, dressing room, or bedroom, and perhaps a study or music room with harpsichord. the dining room had a fireplace, curtains over the windows looped up at the cornices, one or more mahogany tables, a set of mahogany chairs with leather or hair- cloth seats fixed with brass nails (perhaps with some sort of metal springing), two mahogany sideboards with marble tops, cupboards or shelves or cabinets with displays of china porcelain, a wine-cooler, a dumb-waiter, and a folding leather screen. the china, which was displayed, was mostly imported, but there was some english china. later, there was famous wedgwood stoneware and pottery with bright, unfading glaze, or with dull black and red surfaces, biscuit ware of pale green, blue or purple, upon which white designs stood out like cameos. they came from the pottery factory at staffordshire founded by potter josiah wedgwood in . there were silver and pewter plates and serving pieces, silver candlesticks, and silver knives, spoons, and two and three pronged forks, glass salt-cellars from , and fingerbowls from which one rinsed one's mouth or cleaned one's fingers after dinner which were made of glass from about . on the third floor were bedrooms and a nursery. in the bedrooms, there was a high bed with curtains, canopies, piles of blankets and pillows, and stairs; wardrobe; chairs; a wash hand stand; chests of drawers; writing bureau; dressing table with a couple drawers and a mirror; swing standing mirror; tin rush candle canister; and night commode. children and servants slept on low wooden bedsteads. walls were stucco, a form of cement that could be sculpted, or paneled or hung with silk and printed paper. servants, such as the page and footmen, slept in the attic and perhaps in the kitchen or cellar. there was a wood staircase for the family and a back staircase for the servants. the floors and staircases were protected with carpeting. servants had no right to free time or to holidays. the kitchen was in the basement or in a covered shed in the back. it had an open fire and a tin oven. the cold water tap over the stone sink could supply cold water from a cistern in the basement or hand-pumped to a roof cistern through wooden pipes at very low pressure at stated hours for a fee. there was a wash shed in back. water pumped from the thames into underground pipes was thus distributed to householders three times a week. some water came from a well or spring, rain, and street water sellers. water carriers were still employed at set fees. water was kept in lead cisterns. the wealthy had basement cisterns filled by a commercial company. the free public conduits of water were out of use by . the front door of the house had two strong bolts on the inside and a heavy chain. the windows could be shuttered and barred. there were sash windows with cords and brass pulleys. at the back of the house was a garden and perhaps a coach house or stables. the latrine was usually not in the house, but somewhere in the back garden area. under it was a brick drain leading to a public sewer or to a cesspool. smelly gases arose from it. sometimes people gathered such waste up to sell to farmers returning home in an otherwise empty wagon. in , patented inside toilets began to be used. a watch-maker named alexander cummings patented in the water-closet, which had a stink trap u-bend behind which, after flushing, water resided and prevented the back-flow of noxious sewer gas. its pans and overhead cisterns were made in pottery. they were supported by wood structures. there were better cements for building. chinese porcelain, embroidery, and lacquer-work were popular. landscaping to reproduce an idealized country scene replaced formal gardens. furniture and landscaped gardens were often done in a chinese style. foreign trees were imported. many of the well-to-do now lived in districts without as well as within the city limits. many streets east of the city were named after the governing families whose estates were there. their mansions had interior columns, archways, marble halls and fireplaces, carving, gilding, rich colors, and high ornamented ceilings. they each had a picture gallery, a library, stables with coachmen, grooms, and stableboys, and a still-room for concocting liquors and cordials such as cherry brandy, sloe gin, and elderberry wine. medicine and scents were also developed in the still-room. washing was in done wash bowls held by wooden stands wood and in a built-in bathtub. hot water usually had to carried up to it, but bathtubs with hot and cold running water were known. in these mansions, there were many private parties and balls. the standard for politeness here was high and gentlemen were expected to keep their tempers. this came about because impoliteness could easily lead to a quarrel and then a duel. the pistol was replacing the sword as the weapon of choice for duels. good manners developed for all occasions, with much less swearing and less rudeness. by gentlemen's agreements, men did favors for each other without a monetary price, but with the expectancy of a favor in return. the love of one man for another was recognized as the highest and noblest of human passions. people of high social standing left their country estates to spend the winter season in their townhouses in london with its many recreations such as receptions, routs, levies, masquerades, balls, dinner parties, clubs, pleasure gardens, theaters, shops, shows, taverns, and chocolate and coffee houses. coffee houses provided turkish coffee, west indian sugar and cocoa, chinese tea, virginia tobacco, and newspapers. they were frequented by learned scholars and wits, dandies, politicians, and professional newsmongers. men of fashion often engaged in wagers and gambling at their clubs and coffee houses. there were wagers on such matters as the longevity of friends and prominent people, fertility of female friends, wartime actions, and political matters. carriage by sedan-chair was common. gentlemen often had valets. in , buckingham house was bought as a palace for the royal couple. people from different parts of london differed in ways of thinking, conversation, customs, manners, and interests. for instance there were sections where sailors lived, and where weavers, watchmakers, and cow keepers each lived and worked. there were many specialized craftsmen who worked with their own tools in their own shops or houses, for some superior who had contact with the market and who supervised the final processes of manufacture. these included the goldsmiths, upholsterers, coach makers, saddlers, and watchmakers, all of whom had many dependents. the watchmakers had specialists making wheels, pinions, springs, hands, dials, chains, keys, caps, and studs in their own houses. the type of industrial organization most common in london was that in which work was given out to be done in the homes of the workers: the putting out system. some industries, such as watchmaking, silk weaving, and shoemaking were on both a putting out system and a system of an apprenticeship to journeymen working on piece work. shoes were made to order and ready made. the customer was measured in a shop, the clicker cut out the upper leathers, which were given to the closer to be closed, and then to the maker for the sole and heel to be put on. another class of shoemaker worked alone or with an apprentice in a garret, cellar, or stall, using pieces of leather cut out for him by the currier or leather cutter. london industries included bread, beer, spirits, and vinegar; sugar refining; tobacco refining; snuff; spinning and weaving of woolens and worsteds, silk ribbons, tape, and cloth; printed calico, linens, clothes, laces, tassels, fancy embroidery, stays, stocking weaving, hats, shoes, leather goods (boots, shoes hats, gloves, harnesses, saddles), jewelry, glass, candles, tapestry, musical instruments, cutlery, furniture, paint, varnish, tools, paper, printer's ink and glue, printing, publishing, swords, guns, heavy artillery, ships, sails, rope, carriages, and precious and base metalwares such as brass and pewter ware. surgical instruments made included straight and curved knives and probes, lancets, scissors, spatulas, trepans (for cutting bone), and cupping cases. optical instruments made included eyeglasses, telescopes, and microscopes. in eyeglasses were held in place by frames that went over the ears, which replaced unreliable cords over the ears and leather straps tied behind one's head. also made were nautical instruments, quadrants, sundials, sectors, globes, scales, orrerys [a model solar system], and air pumps. in london, the old distinction between craftsmen and laborers was blurred by the existence of trades which employed workmen under a skilled foreman instead of journeymen who had served an apprenticeship. these trades were, on a large scale, new. among the most important of these trades were the distillers and brewers of liquors, the tobacconists and snuff makers, the sugar refiners and soap boilers, the vinegar makers, and makers of varnish, of glue, of printers' ink, and of colors. the latest chemical theories and the chemical explanation of dying brought about the invention of new colors and new processes in dying cloth. workers in these trades were considered as laborers, but their wages were high and their positions relatively secure. they learned their jobs by doing them. the older trades of a similar character, such as tallow melters and chandlers, wax chandlers, fellmongers, and the tanners, employed journeymen. there were buildings for boiling and distilling turpentine, for casting brass or iron, and for making glass for chemical works for sale. the skilled artisan who works at home and either makes goods for a master or sells to the trade verges into the shop keeping class. on the other hand, the lowest type of shopkeeper, the chandler, the dealer in old iron, the tripe shop, the milk retailer, the keeper of a cook shop or a green cellar belong to the class of unskilled and casual labor. the lowly chimney sweeper, paid d. a day, served an apprenticeship as a boy, and then was his own master. the watermen and lightermen, by virtue of their fellowship and their apprenticeship and often the ownership of a boat, belonged to the class of skilled laborers. craftsmen in the building trades and paviours had their laborers as smiths had their hammermen to do the heavy work at laborers' pay. the street ragpickers, the ballad sellers, and the match sellers belonged to the class of beggars. working women in london in were employed in domestic service: %, nursing and midwifery: %, cleaning and laundry: %, vitualling: %, shopkeeping: %, hawking: %, and textiles: %. those employed in domestic service were mostly young women who later married. some women were schoolteachers, innkeepers, or manufacturers, which were middle-class employments. many women in the realm engaged in a variety of occupations from fanmaking and hairdressing to catering, and, as widows, often carried on their husband's trade, including bookselling, hatmaking, building or ironmongery. although shops still had small frontages of about feet and the windows had small panes of bottle glass which partly obscured the view of the goods, there were magnificent shops with large windows displaying fine goods, bookshops, and print shops with prints of political satire with caricatures. the shops were generally open six days a week from am to pm, and over the years later to pm. in josiah wedgwood opened a showroom in london for his high quality pottery from staffordshire. consumption was on a mass scale, many people buying what they wanted instead of just what they needed. there were circulating libraries, public concert halls, and professional boxing matches. at coffee houses, chocolate houses, and taverns, people played at dice and cards, gambled, talked politics and read daily newspapers, in which there was advertising, reports of marriages and deaths, grain prices, and book reviews. different professions and classes and groups, such as the whigs, the tories, classical scholars, scientists, clergymen, intellectuals, actors, writers, and journeymen of particular crafts, had their favorite meeting places. coffee houses reflected the character of their neighborhoods. they acted as postal centers, lost property offices, business addresses, physicians' consulting rooms, lawyers' and merchants' business transactions, matrimonial agencies, masonic lodges, auction rooms, and gambling dens. some retained a supply of prostitutes. many taverns had a rentable private room for the better-off to drink wine, have meals, meet friends, gamble, do business, and hold meetings of societies and clubs, especially political clubs. from this beginning sprang private clubs such as the blue stocking club in and the literary club in ; lloyd's for sale and insurance of ships in ; and the stock exchange in . the blue stocking club was established by women who organized conversational parties with guests of intellect and wit. there was opera, playhouses, concerts usually with georg handel's oratorios such as the messiah or the foreigners bach and haydn, tea-gardens, fire works, balls, masquerades, wax works, beer shops, and bawdy houses, except on sunday. there were straight plays, comic operas, and melodramas. three-dimensional sets replaced the two- dimensional backdrop. plays containing thinly veiled satires on politicians were becoming popular. some plays had crude and licentious material. theaters still shared a close association with brothels. unlicensed theaters were closed down by a statute of , but most came to acquire patronage to get a license. this shaped the development of drama in london for a century. the beggar's opera depicting an immoral society unable to master its bandits was written by john gay as a powerful attack on a government which most of london hated. with its many ballads it became very popular. one such ballad goes: "through all the employments of life each neighbor abuses his brother; whore and rogue they call husband and wife; all professions be-rogue one another. the priest calls the lawyer a cheat, the lawyer be-knaves the divine; and the statesman, because he's so great, thinks his trade as honest as mine." another is: "a fox may steal your hens, sir, a whore your health and pence, sir, your daughter rob your chest, sir, your wife may steal your rest, sir, a thief your goods and plate. but this is all but picking, with rest, pence, chest and chicken, it ever was decreed, sir, if lawyer's hand is fee'd, sir, he steals your whole estate." the thames was crowded with sailing boats and with a line of boats waiting to unload. foreign and native ships lined the river banks in rows. theft of cargo from docked ships was still a problem and pirates were still executed at low tide on gallows. londoners went to the bridges across the thames to breathe fresh air. london air was so smoky and polluted by coal-burning in kitchens and factories that it gave a cough to newcomers. the river was so polluted by the sewers by that all the swans and most of the fish had disappeared. a mansion house was built for the mayor in . the king's zoo had ten lions, one panther, two tigers, and four leopards. deer hunting in hyde park was now confined to its northwest corner, which was enclosed for the king, who occasionally hunted here. elsewhere in the park were laid out walks and fountains. gardens were now natural instead of formal. the streets were usually crowded with people and traffic. many people traveled by sedan chair. on the streets were barrows with goods such as lace, threads, fruits, and chickens; beggars, ballad singers, musicians, bands, street dancers, apple women, piemen, muffin men, fruit sellers, nut sellers, pudding sellers, milk maids selling milk from buckets, milk sold directly from the cow, vendors of asses' milk, hawkers, newspaper boys, scavengers with carts, postal collectors, lamplighters on their ladders, wenches, chimney sweeps, rat catchers, pick pockets, swaggering bravados, strolling strumpets, brawling watermen, card sharps, overdressed beaux, dancing dogs, and acrobatic monkeys. each trade had it own call. billingsgate open-air market was now exclusively for the sale of fish. small tradesmen such as dairymen, butchers, bakers, fishmongers, and chandlers delivered to regular customers food bought from distributing centers. workers by necessity lived near their place of work because there was no cheap transport and walking through the streets after dark was unpleasant and dangerous. hours of work for most craftsmen was from a.m. to p.m., six days a week. it was common for working class families in london to live in a single room of their house and rent the rest, furnished, to people of different degrees of prosperity and even of different social grades. servants and apprentices slept in the kitchen, the shop, or the garret. the very poor, such as casual laborers and street sellers, silk winders, charwomen, usually lived in damp cellars subject to floods from excessive rain, or in cold and windy garrets. tenancy was usually on a weekly basis because of the general uncertainty of life and trade. conditions were so cramped that cabinet makers made beds which masqueraded in the day time as tables, bureaus, cupboards, or bookcases. the very poor slept in common lodging houses, sleeping uncovered on the floor, twenty to a room. some poor families slept in small hovels made of mud and straw with their pigs, domestic fowl, dogs, and even asses and horses. homeless children slept on the streets. all classes lived so much at coffee houses, alehouses or clubs, which they often used as their addresses, that house room was a secondary consideration. there was an alehouse on almost every street in london to provide cheap food and beer, lodging, employment information, credit, newspapers, tobacco, and meeting places for tradesmen. some alehouses were recognized employment agencies for certain trades, such as the hatters, smiths, carpenters, weavers, boot and shoe makers, metal workers, bakers, tailors, plumbers, painter and glaziers, and bookbinders. they were often run by one of the trade, retired or otherwise. some alehouses catered to criminals and prostitutes. for cheap and simple eating there were chophouses, cookshops, and beef steak houses. there were about , english immigrants a year to london in the s. they were mostly young people. london needed many immigrants because of its high death rate. over twenty london people a week died from starvation alone; they were mostly women. only about one-fourth of london's population had been born in london. especially welcome were sturdy country people for heavy manual labor, the better educated boys from the north for shops and offices, and the honest country people, as contrasted with london's poor, for domestic service. girls mostly looked for domestic service, but were sometimes made the mistress of the house-keeper or steered into prostitution as soon as they entered the city. ambitious young men would seek a job as an apprentice, work hard, flatter his master, and try to marry the master's daughter. it was easier to find a place to live in london than in the villages, though there was much overcrowding. many shopkeepers and workshop owners in london were involved in leasing, purchases, and contracts. queen anne was authorized to build about more churches in london and westminster and their suburbs, to be paid for by a coal tax on imports into the port of london. churches in london were to be rebuilt with money paid by funeral rates, rates for tolling the bells, and rates for the use of palls [altar cloths]. queen anne also appropriated all her revenues from the first fruits and tenths of ecclesiastical benefices, , pounds, to the clerical poor in . there were fewer quarrels among passersby on the london streets; men were less likely to wear their swords. but there were fist fights by common men which gathered crowds and occasioned betting. most crime was petty theft, but mobs and riots were frequent, as there were no police. watchmen and constables were often old and physically incapacitated. the watchmen were householders taking their turn. this duty of householders watching the streets had evolved from the ancient obligation of wards to provide men to guard the walls at night. but few wanted these jobs by which they could offend their neighbors. many citizens paid a rate to be excused from watch and ward duty. constables were often tavern keepers. many riots were started when penal laws against the catholics were repealed. they began with the cries of "no popery", but came to came to target rich men's houses. mobs sacked and pillaged at will, burned houses, and flung open the prisons to increase their numbers. there were political riots between tories and whigs. working men still used violence to protect their livelihoods, such as destroying the lodgings and public houses of cheap immigrant labor such as the irish. another instance was destroying stocking-knitting frames so not too many apprentices could be employed contrary to the regulations of the stocking knitters guild. the use of parish workhouse children also was a cheap supply of labor which forced down the wages of the stocking knitters. in a statute banned wearing of calico after mobs tore calico garments off women. in , thousands marched on parliament and persuaded it to ban foreign silk imports. but when a mob destroyed engine-looms, the army was used against the rioters and two of them were hanged. this was the last major mob action. around the tower, there were still demagogues standing on upturned carts haranguing passing crowds. the tower area was a favorite place for demonstrators, and for unemployed and dissatisfied workmen, particularly coal heavers and underpaid seamen protesting their low pay and poor living conditions. there was more crime, especially at night, now with organized bands of men or gangs of children. bounty hunters made a lot of money catching offenders. in , to deter the frequent robberies, burglaries, and other felonies at night, many glass lamps were set up in places determined by the mayor. they had to burn from sunset to sunrise. in , a lighting rate was imposed by the city to pay for all night lighting all year by hired lamplighters. anyone breaking or damaging the lights of london would forfeit s. for the first offense, s. for the second offense, and pounds for the third offense. the aldermen had to contract to pay for lighting, trimming, snuffing, cleaning, supplying, maintaining, and repairing them. to pay for this system, citizens paid according to the amount of rent their holdings were worth. if they didn't pay, they could not vote. bad areas of thieves and prostitutes and the slums east of the city were gradually being replaced by warehouses and offices. in , london bridge was widened and the houses were cleared off it. there were lanes for carriages in the middle and for pedestrians on each side. its arches were also widened. lights were put on it to be lit all night. and watchmen were put on it for safety and protection of passengers. (this was paid for by tolls of / d. per horse, d. per carriage, and d.- s. for vessels with goods.) about , a body of enterprising citizens secured private acts of parliament which allowed them to levy a house tax in return for providing paving and lighting, which then greatly improved, as did sanitation. sidewalks were raised between the street proper and the buildings, replacing the protective posts which had lined the roads. flat stones were put in place of the pebbles on the roadway. signs hanging in from of stores, which had blocked the sunlight, were placed flat in front of the buildings. this also made the streets more airy. the buildings were given numbered addresses and street names were placed on buildings. loading and unloading could not exceed one hour. nuisances like empty carts could be removed. cranes used in warehouses had to be stored in unobtrusive places. one who drove on the foot pavement had to forfeit s. for the first offense, s. for the second offense, and s. for other offenses. wells were dug and pumps erected for watering the streets. pavements were to be repaired on complaint. dust boxes and dust holes were built and had to be used for refuse awaiting pickup by the raker or forfeit s. in , the system of having every man responsible for cleaning the street in front of his door, which occasioned piles of rubbish in the central troughs of the streets waiting for the next rain to be washed away, was abandoned. but house occupants were required to keep the sidewalk in front of their house clean or forfeit s. if one broke a light, he had to pay damages if it was accidental, and also s. if willful. there were special stands for hackney coaches, which were d. d. for a day of twelve hours. their regulations were extended to sundays. wards were to chose substantial inhabitants to be collectors for a year at a time to collect the rates, which were not to exceed s. d. per pound of rents. if one declined to be a collector, he had to forfeit pounds. in london, the normal system of building was for builders to buy up leases, put up a new building, and sell it before the lease became due. the rules for party walls between buildings were made more stringent: / bricks thick in cellar, bricks thick to the garret floor, and / bricks above the roofs or gutters. they had to be made of brick or stone. in , rain water from roofs had to be carried to the streets in lead or other pipes that were affixed against the side of the building. in , iron, copper, or other pipe or funnel for conveying smoke or steam were not to be near any inside timber, or in front of most any building or next to any public street, square, or court. in the s firefighters had to fill a tank on a wagon by hand with buckets. on top of the bucket was a hose that could spray water high. london parishes were authorized to place upon the water pipes underground stop-blocks of wood with a plug and firecocks to go into such pipe at various distances so that there would be no loss in time in digging down to the pipes to get water to fight fires. parishes were required to keep at known places, ladders and a large engine and a hand engine to throw up water to extinguish fires including one leather hose with socket fitting the plug or firecock, so that buckets would not be needed. the sun insurance company was incorporated for fire insurance in . insurance offices were authorized to employ watermen with poles, hooks, and hatchets to be always ready at a call to extinguish fires. no more than sacks of meal, quarters of malt, bricks, or chalder of coal per load on wagons or carts with wheels bound with [narrow] iron tire are allowed within ten miles of london or westminster, or forfeit one horse. this is to prevent decay of the roads. for every wagon and cart in london, there must be a person on foot to guide it to prevent the maiming, wounding, and killing of people, especially the old and children, when drivers ride on their wagons and carts. later, it was required that carts must display the name of the owner and be registered. still later, there was a penalty of s. for not having a person on foot to guide any cart. later still, in , if a new owner of a cart did not put his name thereon, he had to forfeit s., and the cart and horse could be seized and sold to pay the forfeiture. persons willfully obstructing passage on streets with empty carts or barrels or pipes shall forfeit - s. or do hard labor up to one month. the justices of london assessed rates and made regulations for carriage of goods. certain houses and buildings were bought and pulled down to widen several streets, lanes, and passages. in , persons driving cattle in london, whose negligence or improper treatment of such cattle cause them to do mischief shall forfeit - s. or else go to a house of correction for up to one month or be publicly whipped. the roads around london were neither very attractive nor very safe. along them was land covered with water from drains and refuse and dung heaps. hogs were kept in large numbers on the outskirts and fed on the garbage of the town. smoking brick kilns surrounded a great part of london. in the brickyards vagrants lived and slept, cooking their food at the kilns. queen anne's drinking of tea made it a popular drink, but it was still expensive. this habit improved health because to make tea, the water had to be boiled before drunk. breakfast included tea and bread and butter, and later toast with melted butter. the rich also had coffee and chocolate. the morning newspaper was often read at breakfast. the chief dinner dishes were roast beef, roast mutton, boiled beef or pork, with puddings and vegetables. roast meat was still the basic diet of town and country gentlemen. there were also fowls, tripes, rabbits, hares, pigeons, and venison. many elaborate sauces were made. the national dish was the pudding, a compound of steak, kidney, larks, and oyster. drinks included ginger beer, lemonade, barley water, coffee, chocolate, tea, and foreign wine. port from portugal was introduced about , and rum about . rum, made from sugar, first became popular as a medicine, well-whisked with butter. beer was drunk by the poorer and middle classes. the poor could afford very little meat now, unlike years ago. their standard fare was cheese, bread, and tea, the latter of which was usually from used tea leaves bought from rich houses. households were smaller; a peer had a household of about - . the proportion of women grew to one-third to one-half. dinner guests sat and were served in order of rank, with gentlemen on one side of the table and ladies on the other. later, a fashion came in to sit alternately by sex. dinner was in several courses and lasted a few hours. toasts might be made. it was bad manners to put one's elbows on the table, to sniff the food, to eat too slowly or too quickly, to scratch, spit, or blow one's nose at the table, or to pick one's teeth with a toothpick before the dishes were removed. after dinner, the men drank, smoked, and talked at the table. there was a chamber pot under the sideboard for their use. politics was a popular subject. the women talked together in the drawing room. later, the men joined the women for tea and coffee. the evening often finished with card games, reading newspapers, verse-making, fortune-telling, walks in the garden, impromptu dancing, perhaps gambling, and supper. the nobility and gentry became more mobile and now mixed together at parties. at these afternoon parties, there were a variety of simultaneous activities, instead of everyone participating in the same activities together as a group. guests could choose to engage in conversation, news, cards, tea-drinking, music, dancing, and even go into supper at different times. sometimes a man other than her husband escorted a lady to a party. having lovers outside marriage was socially accepted if discrete. single women were discouraged from thinking of their independent status not as advantageous, but as regrettable. weddings were becoming public in church instead of private. brides wore a white silk or satin dress with a train. over one third of brides who were capable of having children were already pregnant when they got married. in a marriage statute required licenses to marry and the consent of parents or guardians in case of minors, calling of banns [advance announcement so that anyone could point out why the marriage should not take place], and need of four weeks residence in the parish where the license was given by bishop or other authority, because of the kidnapping of heiresses, prostitutes trapping unwary youths after getting them drunk, and priests performing marriages clandestinely and not in church, which required banns. two witnesses to the marriage were required to sign a certificate of marriage, which was then to be registered in the parish books. manufactured goods relieved ladies from baking of bread, brewing, and spinning. so they often visited with friends, wrote letters, embroidered, and supervised the servants. funerals ceremonies started with socializing at the house with refreshments, then going in a procession to the church for burial, and finally returning to the house for more socializing. it was possible for a woman-covert to be seized of land in fee simple or in tail general or special to her separate use, free from control or intermeddling of her husband. houses were warmed in winter by burning coal. furniture was still sparse. moderate homes had tent-beds in use, with which cloth was hung on all four sides of the bed from a light iron framework above the bed. the beds were warmed with a warming pan heated in a fire before use. there were often bed bugs and fleas. everyone wore nightcaps to bed. pewter tableware was used, but the poor used tinware instead. copper, brass, and iron pots and pans were increasingly common. most towns had a regular market once or twice a week. in them, street cleaning was still a responsibility of individual householders. water was still obtained from wells and pumps. there was no municipal government as such. public works were done by special commissions set up for particular purposes, such as lighting, cleaning and paving the streets, night watchmen, traffic regulation, removing nuisances, and improving local amenities. large towns had hospitals for the poor. in the larger manufacturing towns, there were literary and philosophical societies for debates and discussions. these put together libraries for use of their members. also in these large towns, there were booksellers' shops, printing houses, weekly newspapers, playhouses, concerts, and horseracing courses, the latter of which was mostly patronized by gentlemen. some private citizens of various towns followed the example of london and obtained from parliament the right to levy a house rate for paving and lighting. physicians and lawyers lived in two-story brick mansions with attics and sash windows that could be lifted up and down with the help of a pulley. they had rectangular wood panes each with a sheet of glass cut from a circle of blown glass. the old blown glass was not regular, but had a wrinkled appearance. the center of each pane of glass was thicker with a knot in the middle left from the blow pipe. in front of the house were railings which supported two lanterns at the doorway. towns tended to be known for certain specialties, such as seaside holiday resorts, spas like bath, cathedral towns, fashionable shopping for gentry, and towns with certain industries like glass and china manufacture, pin-making, pottery, tanning, manufacture of linen, silk, cotton, and the knitting trade. certain towns were famous for certain varieties of wool cloth. before , a town with more than , inhabitants was considered a large town. shop keeping was supplanting fairs and markets. certain industries were done on a large scale and required workers to be at the same site, e.g. brewing and distilling; building ships; printing fustians; making paper, soap (from animal fat) or candles; coal mining, iron production, mining and smelting of tin and copper, refining of salt, and digging of clay. certain other industries also required some kind of power or team work for their production, e.g. refining sugar; finishing cloth; making bricks; glass-making; manufacture of ropes and sails, and processing of copper and brass into rods and sheets. often the manufacturer's house was surrounded by the many cottages of his workers. there the wife and children usually were busy carding and spinning. putting out work and subcontracting were widespread and created many small-scale capitalists. workers' hours were typically am to pm. as wood charcoal was becoming expensive, coal was increasingly used for brewing and for brick, glass, and china manufacturing. mines for coal became deeper; flooding of them and of tin and copper mines became a problem. drovers bought cattle in the countryside, drove them to big towns, and sold them to fattening graziers or fatted them themselves. then they were driven into town and sold to the wholesale butcher, who sold the carcass to the retail butcher, the hides to the tanner, and the bones to the glue maker. flocks of geese were also driven into towns, after their feet were given a protective covering of tar. there were also middlemen wholesalers for cheese, butter, cloth, and iron. there was a rage of distemper among the cattle so serious that the king was authorized to make regulations for prohibiting the removal or sale and for the burial of distempered cattle later, the king was authorized to prohibit the killing of cow calves. no one may sell any ox, bull, cow, calf, steer, or heifer until he has had possession of such for forty days or forfeit ten pounds, because of distemper. later, the king was authorized to regulate the movement of cattle from one place to another. the main industry of the country was still agriculture. in the countryside, about half the arable land was under the open field system, with land cultivated in common. enclosure of land was still going on. the enclosures were now done by statutory commissions to ensure equitable allotments. agricultural improvements came first to enclosed land, which comprised about half of the agricultural land. in the , jethro tull published a book about his invention of the seed-drill to first pulverize the soil for cultivation without manure and then to deposit seed at a uniform depth in regulated quantities and in rows instead of being thrown haphazardly. also explained was the horse-hoe to stir the soil about the roots of the plants to preserve moisture, promote aeration, admit warmth, and destroy weeds. there were more horses than oxen in use now in the fields. the horse-hoe was first used by large independent farmers on enclosed land. also invented was a threshing machine with a set of sticks to replace hand threshing with flails. under-drainage as well as irrigation was practiced. lord townshend alternated turnips, grasses, and grain in his fields, and thus provided winter food for his cattle. the old forms of crop rotation with fallow periods were often displaced by legume-rotation field-grass agriculture. independent farming gave rise to the improvement of breeds of livestock by selective breeding. enclosed land produced bushels of grain compared to bushels for common field land. it produced pounds of sheep fleece compared to / pounds for common field land. overall, soils were improved by being treated with clay, chalk, or lime. artificial pasture was extended and there was increased use of clover, sainfoin, and rye-grass. grain productivity was four times that of . a fatted ox was pounds compared to the former pounds which it weighed from the s to the s. the fleece of sheep increased fourfold. by statute of , persons having rights of common in certain land may, by the major part in number and in value of each's tenement, enclose such land for planting and growth of timber or underwood. every village had a smith, carpenter, and miller. the larger villages also had a potter, a turner, a malster, a weaver, a tanner, and perhaps a mercer or grocer middleman. wheelwrights made ploughs, harrows, carts, and wagons. ploughs had one, two, or no wheels. poor farming families took up extra work in the villages such as making gloves, knitting stockings, or spinning yarn. craftsmen still helped farmers at harvest time. much of the rural population was now dispersed over the countryside instead of being concentrated in villages because so many small holders had sold out due to enclosures of farm land, especially of common land and waste land. the rural working class lived in two room cottages, with low ceilings, small windows, and an earth floor. patience was required for those willing to wait for an existing cottage in a village to be vacated. most laborers did not marry unless and until they found a cottage. ancient custom that a person could build a home for himself on waste land if he did it in one night was ceasing to be respected. farmers usually preferred employing day-laborers than keeping servants. there were many migrant workers, mainly from ireland, for the busy summer haymaking and harvesting. the children of laborers and of small farmers had little schooling because they were needed for work. they scared the birds, weeded the fields, picked the stones, tended the poultry, set beans, combed the wool, and collected the rushes and dipped them in the tallow [sheep fat]. farm people relied on well water or rain water collected in lead cisterns. a farmhouse fireplace had pots hung from iron rods. saucepans sat on iron stands, which were stored above the mantel when not in use. spits were rotated by pulleys powered by the upward current of hot air or by a mechanical device. bacon was smoked in the chimney accessible by a staircase or upper floor. there still existed customary freeholders, who owned their land subject to certain customary obligations to the lord of a manor. the people displaced by enclosure became laborers dependent on wages or paupers. their discontent was expressed in this poem: "they hang the man and flog the woman that steals a goose from off the common but leave the greater criminal loose that steals the common from the goose." eventually there was some relief given to the poor workers. by statute of , wastes, commons, and fields having several owners with different interests may by three-quarters vote in number and in value of the occupiers cultivate such for up to six years. however, cottagers and those with certain sheep walks, or cattle pasture, may not be excluded from their rights of common. by statute of , the elizabethan statute restricting locations where cottages could be erected and their inhabitants was repealed because the industrious poor were under great difficulties to procure habitations. land could be rented out at ten times the original value. land was typically rented out for , , or years. great fortunes were made by large landowners who built grand country estates. the manufacturers and merchants made much money, but agriculture was still the basis of the national wealth. as the population grew, the number of people in the manufacturing classes was almost that of the agriculturalists, but they had at least twice the income of the agriculturalists. the greatest industry after agriculture was cloth. most of this activity took places in the homes, but families could earn more if each family member was willing to exchange the informality of domestic work for the long hours and harsh discipline of the factory or workshop. more wool was made into cloth in the country. dyed and finished wool cloth and less raw wool and unfinished broadcloth, was exported. bleaching was done by protracted washing and open-air drying in "bleach fields". there were great advances in the technology of making cloth. thomas lombe, the son of a weaver, became a mercer and merchant in london. he went to italy to discover their secret in manufacturing silk so inexpensively. he not only found his way in to see their silk machines, but made some drawings and sent them to england hidden in pieces of silk. he got a patent in and he and his brother set up a mill using water power to twist together the silk fibers from the cocoons into thread [thrown silk] in . his factory was five hundred feet long and about five stories high. one water wheel worked the vast number of parts on the machines. the machines inside were very tall, cylindrical in shape, and rotated on vertical axes. several rows of bobbins, set on the circumference, received the threads, and by a rapid rotary movement gave them the necessary twist. at the top the thrown silk was automatically wound on a winder, all ready to be made into hanks for sale. the workman's chief task was to reknot the threads whenever they broke. each man was in charge of sixty threads. there were three hundred workmen. lombe made a fortune of , pounds and was knighted and made an alderman of london. after his patent expired in , his mill became the prototype for later cotton and wool spinning mills in the later s. there were many woolen manufacture towns. clothiers might employ up to three thousand workers. at these, the spinning was done by unskilled labor, especially women and children in villages and towns. weaving, wool combing, and carding were skilled occupations. in , clockmaker and weaver john kay invented a flying shuttle for weaving. it was fitted with small wheels and set in a kind of wooden groove. on either side there were two wooden hammers hung on horizontal rods to give the shuttle and to and fro action. the two hammers were bound together by two strings attached to a single handle, so that with one hand the shuttle could be driven either way. with a sharp tap by the weaver, first one and then the other hammer moved on its rod. it hit the shuttle, which slid along its groove. at the end of each rod there was a spring to stop the hammer and replace it in position. it doubled the weavers' output. now the broadest cloth could be woven by one man instead of two. this shuttle was used in a machine for cotton. but the manufacturers who used the flying shuttle combined together and refused to pay royalties to kay, who was ruined by legal expenses. now the price of thread rose because of increased demand for it. the weavers, who had to pay the spinners, then found it hard to make a living. but the process of spinning was soon to catch up. in , john wyatt, a ship's carpenter who also invented the harpoon shot from a gun, patented a spinning machine whereby carded wool or cotton was joined together to make a long and narrow mass. one end of this mass was drawn in between a pair of rotating rollers, of which one surface was smooth and the other rough, indented, or covered with leather, cloth, shagg, hair, brushes, or points of metal. from here, the mass went between another set of rollers, which were moving faster than the first pair. this stretched the mass and drew it into any degree of fineness of thread by adjusting the speed of the second pair of rollers. then the thread went by a flier, which twisted it. after this the thread was wound off onto spindles or bobbins, whose rotation was regulated by the faster pair of rollers. or the mass could be drawn by rotating spindles directly from one pair of rollers. this machine was worked by two donkeys and was tended by ten female workers. because of bankruptcy in , the invention was sold to edward cave, the editor of "gentleman's magazine". he set up a workshop with five machines, each fitted with fifty spindles and worked by water wheels. carding was done by cylindrical carding machines invented by lewis paul. in , the plant was bought by carpenter and weaver james hargreaves. his work with it resulted in his invention of the very successful spinning jenny, which was patented about . he conceived the idea by watching a spinning wheel that had been knocked over lying on its side and still revolving for a few seconds, while the thread, held between two fingers, seemed to go on spinning itself. the machine consisted of a rectangular frame on four legs. at one end was a row of vertical spindles. across the frame were two parallel wooden rails, lying close together, which were mounted on a sort of carriage and slid backwards and forwards as desired. the cotton, which had been previously carded, stretched, and twisted passed between the two rails and then was wound on spindles. with one hand the spinner worked the carriage backwards and forwards, and with the other he turned the handle which worked the spindles. in this way, the thread was drawn and twisted at the same time. no longer did it take ten spinners to keep one weaver busy. but manufacturers refused to pay him royalties for his invention. he was offered , pounds for his rights in the jenny, but refused it. the courts held that the model of his jenny had been used in industry before it was patented and any rights he may have had were declared to have lapsed. nevertheless, he made over , pounds. the spinning jenny was used in many homes. richard arkwright, came from a poor family and was taught to read by an uncle. he became a barber and made wigs. although he was not a craftsman of any sort, he patented in a spinning frame worked by water power and erected the first practical cotton mill factory. it produced a much stronger thread than could have been made with a spinning wheel. with capital from two rich hosiers, he set up a workshop next to a swift and powerful river running down a narrow gorge. then he turned his attention to weaving this thread. in , he set up weaving workshops making pure cotton calicoes which were as good as indian calicoes. but there was a statute of , that no one may wear or use printed, painted, stained or dyed calicoes e.g. in apparel, bed, chair, cushion, window curtain, furniture, except those dyed all in blue, or forfeit pounds by a seller, pounds by a wearer, and pounds by other users. this prohibition was to provide wool working jobs to the poor, who had been increasing excessively because of lack of work. a clarification was made in that the statute did not include printed or painted cloth made of an all linen warp (for strength) and a cotton weft (for fineness) manufactured in great britain because such was a branch of the ancient fustian manufacture. there was also a statute of , that any one who willfully and maliciously assaults a person in the public streets or highways with an intent to tear, spoil, cut, burn, or deface the garments or clothes of such person and carries this out is guilty of felony and may be transported for seven years. this was the way the wool weavers had expressed their opposition to imported printed cottons and calicoes. the prohibition against the manufacture and wearing and using of pure cotton fabrics came to an end in on arguments of arkwright made to parliament that his pure cottons would bleach, print, wash and wear better than fustians. this was the first all cotton cloth made in england. in , arkwright added machines to do work prefatory to spinning. raw cotton was first fed by a sloping hose to a feeder that was perpetually revolving. from here it went a carding machine of three rollers of different diameters covered with bent metal teeth. the first, with teeth bent in the direction of its revolution, caught up the cotton fibers. the second, revolving in the same direction but much faster, carded the fibers into the requisite fineness by contact with the third, whose teeth and motion were in the opposite direction. next, a crank and comb detached the carded cotton so that it came off as a continuous ribbon. then the ribbon went into a revolving cone, which twisted it on itself. eventually arkwright became rich from his creation of the modern factory, which was widely imitated. he established discipline in his mills and he made his presence felt everywhere there, watching his men and obtaining from them the steadiest and most careful work. he provided housing and services to attract workers. after cotton, the inventions of the spinning jenny and the water- powered frame were applied to wool. silk and cotton manufacture led the way in using new machinery because they were recently imported industries so not bound down by tradition and legal restraint. yarn production so improved that weavers became very prosperous. cards with metal teeth were challenging the use of wood and horn cards with thistles in carding wool. merchants who traveled all over the world and saw new selling opportunities and therefore kept encouraging the manufacturers to increase their production and improve their methods. factory owners united to present suggestions to parliament. manufacturing broke loose from traditional confines in several ways. to avoid the monopolistic confines of chartered towns, many entrepreneurs set up new industries in birmingham or manchester, which grew enormously. manchester had no municipal corporation and was still under the jurisdiction of a manor court. it sent no representative to the house of commons. all over the country the justices of the peace had largely ceased regulating wages, especially in the newer industries such as cotton, where apprenticeship was optional. apprenticeship lapsed in many industries, excepting the older crafts. several legal decisions had declared seven years practice of a trade as good as an apprenticeship. apprentices still lived in their masters' houses and were still treated as family members. the regulations of the cutlers' company remained in force as its masters used their great manual skill to make cutlery in their own homes with the help of their children and apprentices. trades in some towns which had guild regulations that had the force of law hung on to their customs with difficulty. although there were few large factories in the country under effective management of a capitalist, trade unionism was beginning as two distinct classes of men were being formed in factories. the factory owner was so high above his workmen that he found himself on the same level as other capitalists, the banker, who gave him credit, and the merchant, who gave him customers. journeymen in factories could no longer aspire to become masters of their trade and no longer socialized with their employers. hard and fast rules replaced the freedom of the small workshops. each worker had his allotted place and his strictly defined and invariable duty. everyone had to work, steadily and without stopping, under the vigilant eye of a foreman who secured obedience by means of fines, physical means, or dismissals. work started, meals were eaten, and work stopped at fixed hours, signaled by the ringing of a bell. factory hours were typically fourteen hours or more. organized resistance, as usual, began not with those most ill-treated, but with those men who had some bargaining power through their skills. wool-combers, who worked next to a charcoal stove where they heated the teeth of the comb, were the most skilled of the cloth industry were hard to replace. since they were nomadic, they quickly organized nation-wide. they agreed that if any employer hired a comber not in their organization, none of them would work for him. they also would beat up and destroy the comb-pot of the outsider. in and , the tiverton wool-combers objected to the import of combed wool from ireland by burning irish wool in clothiers' stores and attacking several houses. they had strike funds and went on strike in . their bloody brawls caused the military to intervene. then many of them left town in a body, harming the local industry. the earnings of wool-combers was high, reaching from s. to s. a week in , the highest rate of a weaver. in , the colchester weavers accused their employers of taking on too many apprentices. when the weavers organized and sought to regulate the weaving trade, a statute was passed in making their combinations void. strike offenses such as house-breaking and destruction of goods or personal threats had penalties of transportation for seven years. still in , the gloucester weavers protested against men being employed who had not served their apprenticeship. when the journeymen tailors in and around london organized, a statute made their agreements entering into combinations to advance their wages to unreasonable prices and to lessen their usual hours of work illegal and void, because this has encouraged idleness and increased the number of poor. tailors' wages are not to exceed s. per day and their hours of work are to be a.m. to p.m. for the next three months, and s. d. per day for the rest of the year. a master tailor paying more shall forfeit pounds. a journeyman receiving more shall be sent to the house of correction for months. justices of the peace may still alter these wages and hours depending on local scarcity or plenty. despite this statute, the journeymen tailors complained to parliament of their low wages and lack of work; their masters called them to work only about half the year. there was much seasonal fluctuation in their trade as there was in all trades. the slack period for the tailors was the winter, when the people of fashion retired to their country estates. after their complaint, their wages then rose from s. d. per day in , to s. d.- s. in , to s.- s. d. in , to s. d.- s. d. in , to up to s. / d. in , and to s. in . foremen were excluded from wage control. when they complained of their long hours, which were two hours longer than the a.m. to p.m. of most handicraft trades, their hours were reduced in by one hour to a.m. to p.m. and their pay was set at d. per hour for overtime work at night during periods of general mourning, e.g. court mourning. their work hours were lowered to from a.m to p.m. in . the stocking frame-knitters guild, which had been chartered in , went on strike to protest the use of workhouse children as an abuse of apprenticeship which lowered their wages. they broke many of their frames, which belonged to their employers, to limit their number. in , combinations to advance wages, decrease hours of work, or regulate prices were declared void for journeymen dyers, journeyman hot pressers, all wool workers, brickmakers and tilemakers, journeymen servants, workmen, laborers, felt and hat makers, and silk, linen, cotton, iron, leather, and fur workers in and around london. the penalty was prison or hard labor at a house of correction for three months without bail. in , justices of the peace were to determine the rates of wages of wool workers according to numbers of yards. but this was repealed the next year to prevent combinations of workers. wage agreements between clothiers and weavers were declared binding. clothiers not paying wages within two days of delivery of work shall forfeit s. in the silk weavers in east london drew up a scale of wages, and upon its being rejected, of them broke their tools, destroyed the materials, and left their workshops. a battalion of guards had to take possession of the area. in , the silk weavers marched on westminster to stop the import of french silks. in , the weavers rebelled against a d. per yard reduction in their wages, filling the streets in riotous crowds and pillaging houses. after the garrison of the tower came, the workmen resisted with cudgels and cutlasses, resulting in deaths and woundings. the throwsters [those who pulled the silk fibers from the cocoons of the silk worms and twisted them together to make a thread] and the handkerchief weavers also became discontent. a battle between soldiers and silk weavers at their meeting place resulted in several men on both sides being killed. in , wages and prices for the work of journeymen silk weavers in and around london are to be regulated by the mayor and justices of the peace. foremen were excluded. no silk weaver may have more than two apprentices or forfeit pounds. journeymen weavers entering into combinations shall forfeit s. this statute satisfied the weavers, but they formed a union to ensure that it was carried out. in , , and , there were strikes which stopped the work of the coal industry and harbor at newcastle for weeks. in , the keelmen formed a combination to force their employers to use the official measure fixed by statute for the measurement of loads of coals. the book "consideration upon the east-india trade" dating from advocated free foreign trade. it argued that the import of goods from india not only benefited the consumer but also the nation, because it was a waste of labor to use it in producing goods which could be bought cheap abroad. this labor could be better put to use in new industries, at easily learned plain work. also the low cost of imported goods would motivate the invention of machines in the nation which would be even more efficient in manufacturing these goods. but english manufacturers were still suspicious of free trade. making beer and distilling gin from barley were widespread. the pastimes of gambling and drinking were popular with all classes. in the trades, this was promoted by the uncertainties of life and work and a general sense of instability. many london tradesmen started their day with a breakfast of beer, bread, and cheese, the traditional breakfast of countrymen. gambling and dissipation reduced some london men with good businesses to destitution, the work house, or street begging. drunken gentlemen played pranks such as imitating a woman in distress or throwing a person in a horse trough. some innkeepers had "straw houses" where customers who were so drunk they were unable to walk home could sleep in fresh straw. a person could get drunk for a few pence. gambling with cards was a popular pastime after dinner. cricket matches were played by all classes instead of just by humbler people; there were county cricket matches. gentlemen often took their coachmen with them to public events such as cricket matches. tennis was a sport of the wealthy classes. billiards, chess, and games with cards or dice were played, especially in alehouses. there was horse racing on any open ground to which people brought their horses to race. jockeys tried to unseat each other. hunting of rabbits and then foxes replaced deer hunting. bird and duck hunting was usually with flint lock guns instead of hawks, as the hedges provided cover from hawks. there was fishing with line, hook, and bait. watching the hanging of felons, about a year in london, was popular, as was going to bedlam to watch for a fee the insane being flogged. people went to the tower to try to get a glance at a famous prisoner looking through a window or taking a walk along the battlements. besides the grand pleasure gardens for gentry, there were lesser pleasure gardens in london for working families, which offered fresh air, tea, beer, swimming, fishing, courting, bowling, and cheap entertainment. running, vaulting, and leaping were still popular in the countryside. fairs had amusements such as fire swallowers, ventriloquists, puppet shows, acrobats, jugglers, animal performances, pantomimes, boxing, dwarfs, and albinos, but less trading. in was the first circus. circuses included feats of horsemanship and clowns. there was also eating and drinking competitions, foot races, football, archery, some wrestling, and some bowling on greens or alleys. in winter there was ice skating with blades and sliding. the right of public access to st. james park became entrenched by the s. there was sailing, rowing, swimming, and hopscotch. george iii made sea-bathing popular and it was supposed to be good for one's health. there was steeple chasing as of . horse-racing was given rules. on sunday, there was no singing, music playing, dancing, or games, but the bible was read aloud, prayers were said, and hymns were sung. sabbath-breakers were fined by magistrates. men often spent sunday in a tavern. in general, commodity prices were stable. but when harvests were poor, such as in when there was famine, and between and , bread prices rose. the price of wheat in london, which since had been between s. and s., rose to s. in . then the poor engaged in food riots. these riots were often accompanied by burning; looting of grain mills, shops, and markets; and mob violence. the english economy was so dependent on foreign trade, which had trebled since the s, that the slightest disturbance in the maritime trade threatened the english with starvation. in many localities the men in need of parochial relief were sent around from one farm to another for employment, part of their wages being paid from the poor rates. the poor often went from parish to parish seeking poor relief. settled people tended to fear wandering people. parishes sought to keep down their poor rates by devices such as removing mothers in labor lest the infant be born in the parish. so a statute was passed that a child born to a wandering woman may not have the place of birth as his settlement, but takes the same settlement as his mother. some farmers hired laborers for only fifty one weeks and some apprentices were bound by means other than indenture so that they could not establish settlement in that parish. laborers who came to work in industries were refused settlement and sent back to their original parishes whenever they seemed likely to become dependent on the rates. statutes then provided that a parish must give settlement to apprentices bound for forty days there, not only by indenture, but by deed, writings, or contracts not indented. in , parishes were authorized to purchase houses in which to lodge or employ the poor and to contract with any person for the lodging, keeping, maintaining, and employing of the poor. these persons could take the benefit of the work, labor, and service of these poor, which would be used for the relief of other poor. the poor refusing such lodging could not then get relief. many of the poor starved to death. the propertied classes turned a blind eye to the predicament of the poor, opining that they were idle or could save more and did not need higher earnings. charitable organizations gave to the poor and set up all day sunday schools to set wayward children on a moral path. the sunday schools could accommodate children who worked during the week. punishment of children by parents or others could be by whipping or even sitting in stocks. about half of the people were dependent on poor relief or charities. desertion by a man of his family was a common offense. parishes providing upkeep for the family sent men to find the errant husbands. the parish would ask unmarried mothers who was the father of their child and then force him to marry her or pay for the upkeep of the child. he often made a bargain with the parish to release him of his obligation for a sum of money paid to the parish. but many young parish children died of neglect, and later, parishes were required to list children under four to aid in accounting for them. divorces were still few and expensive, but increasing in number; there were more in this period. it was easier for a man to get a divorce for one act of adultery by his wife, than for a wife to get one for habitual unfaithfulness. vagrants and other offenders could be committed to houses of correction as well as to county gaols, because of the expense of the latter. crime was exacerbated by orgies of liquor drinking by the common people, especially between and , the sale of which did not have to be licensed as did ale. in , it was required that retailers of brandy, rum, and other distilled spirituous liquors be licensed and to pay pounds a year for their license, because excessive use had been detrimental to health, rendering persons unfit for useful labor and business, debauching their morals, and inciting them to vices. only persons keeping public victualling houses, inns, coffee houses, alehouses or brandy shops who exercised no other trade were allowed to obtain a license. this excluded employers who had sold liquors to their journeymen, workmen, servants, and laborers at exorbitant prices. street vendors who sold liquors had to forfeit pounds. a duty of s. per gallon was imposed on the retailers. there were riots in london against this statute and its new duties. there had been a tremendous growth in liquor drinking, which did not stop but went underground after this statute. in , a penalty of pounds or hard labor for two months was made for selling spirituous liquors without a license. also licenses were restricted to people who were certified by four reputable and substantial householders to be of good fame and sober life and conversation. sellers had to maintain good order in their premises or forfeit pounds. about only innkeepers, victuallers, and vendors paying rent of at least shillings could sell gin at retail. the punishment for the second offense was whipping and imprisonment. that for the third offense was transportation. about only innkeepers, victuallers, and vendors paying rent of at least shillings could sell gin at retail. the punishment for the second offense was whipping and imprisonment. that for the third offense was transportation. in , additional duties were placed on spiritual liquors to discourage immoderate drinking going on by people of the meanest and lowest sort to the detriment of the health and morals of the common people. in , these duties were again raised. in , officers were authorized to seize all horses, cattle, and carriages used to transport foreign spirituous liquors for which duties had been evaded. in , the penalty for selling without a license was raised to pounds, which could not be mitigated below pounds. half the forfeiture was to go to the suer. the informer system for enforcing laws had its drawbacks. informers were not trained and were sometimes retaliated against for informing. sometimes this meant being tortured to death. sometimes there were schemes in which a leader of thieves, would take a profit in the stolen goods by posing as a good citizen who tracked down and returned them to the owners for a fee. also he might inform on his companions to get the reward for informing or to punish a troublesome one. sometimes the owner of goods was involved in a fake robbery. an effort in to turn the whole haphazard system of informers, into a specialized organization for the detection and apprehension of criminals had caused a mob to form and make threats; englishmen associated a police force with french tyranny. nevertheless, about , sir john fielding, a bow street magistrate, and his half-brother picked men to police the street under the direct control of the bow street magistrates. this first police district made an impact on the increasing violence of the times. in , a proposal before parliament to have a national census was also defeated by public fear of liberty being curtailed by having to make account of the number and circumstances of one's family and giving out information that could be used by enemies both in the realm and abroad. though grammar schools were endowed for the education of local poor boys, they sought fee-paying sons of gentlemen. they now taught arithmetic as well as reading and writing. translation and reading of latin is still important, e.g. aesop's fables, cicero's letters, caesar's commentaries, ovid, livy, virgil, horace, pliny, juvenal, and plautus. the "eton grammar" book replaced the "royal grammar" as the standard for latin and english grammar. the boys lived in boarding houses superintended by "dames" or older boys. there were usually two boys to a bed. there was bullying and initiation ceremonies such as tossing small boys up from a held blanket or having younger boys run naked in the snow. there were occasional rebellions by the boys and fights with the townspeople. flogging with a birch or caning with a rod until blood was drawn from the bare buttocks was the usual punishment. there were some national boys' boarding schools such as eton, winchester, and westminster. in these schools, boys could mix with sons of rich and powerful people, thus establishing important connections for their adult life. but there was more bulling of small boys by large boys at these schools and the smaller boys became menial servants of their seniors. occasionally there were student riots. however, most grammar schools were not residential. because the grammar schools were limited to boys, many boarding schools for girls were established. tradesmen's daughters were often sent to these to learn to act like ladies. most upper class girls were taught, at home or at school, english, writing, arithmetic, drawing, courtly dancing, needlework, music, and french. dissenting academies were established for those who did not pass the religious tests of the grammar schools. pencils were now in use. sons of gentlemen usually took "the grand tour" of the continent before going to university. these tours lasted for months or years, and always included paris and a protestant french university. the students went in groups with tutors. the chief purpose was now cultural, instead of practical. on these tours there was often misbehavior such as drinking and fighting. in , travelers checks were developed for those on the grand tour. the universities began to teach science. the new professorships at cambridge university were: chemistry, astronomy, experimental philosophy, anatomy, botany, geology, geometry, and arabic. ideas in geology challenged the bible's description of the creation of the world and there was a controversy over the origin and nature of fossils. in , a large pointed weapon of black flint was found in contact with the bones of an elephant in a gravel bed in london. oral and written examinations began to replace disputations. few professors lectured. dissenters were excluded from universities as well as from offices and grammar schools. oxford and cambridge universities were open only to members of the church of england, so other universities were established for dissenters. they taught geography, mathematics, science, physics, astronomy, mechanics, hydrostatics, and anatomy. at oxford and cambridge and harvard universities, students in science were relegated to different instructors, buildings, and degree ceremonies than students in literature, who often looked down on them as socially and intellectually inferior. the inns of court had ceased to provide residence. the period of education at law school at the inns of court was now reduced in from seven to five years for ordinary students and to three years for graduates of oxford or cambridge universities. the textbooks were: "doctor and student" by christopher saint-german ( ) and "institutes of the laws of england" by thomas wood ( ). most landed families tried to ensure that at least one member of the family in each generation was educated at the inns of court after going to oxford or cambridge. in , attorneys formed a "society of gentlemen practitioners in the courts of law and equity". in order to earn a living, most attorneys had to attach themselves to some great patron and serve his interests. so it was hard for an ordinary person to find an impartial attorney or to find any attorney willing to contest a powerful family. the first encyclopedia came into existence in . in was the first public circulating library in london. samuel johnson put together the first dictionary in . it standardized spelling and pronunciation. then came dictionaries for the arts, sciences, and commerce. there were histories with political biases such as the earl of clarendon's "history of the great rebellion". alexander pope wrote witty satire on human faults of the period such as "rape of the lock". daniel defoe wrote "robinson crusoe", "moll flanders", and "the poor man's plea" protesting disparity of judicial treatment of rich and poor, for instance for drunkenness. henry fielding wrote one of the first novels: "tom jones". joseph addison wrote essays on social behavior. jonathan swift wrote the satire on the times "gulliver's travels". samuel richardson wrote some of the first novels, such as "clarissa"; he wrote on values such as religious faith, moral virtue, and family closeness. catherine macaulay started writing her weighty and impressive "history of england". many schoolmistresses wrote textbooks on a variety of subjects. poet and essayist hester chapone wrote "letters on the improvement of the mind". elizabeth carter wrote poetry and translated greek works; her work was published in "the gentleman's magazine". hannah more wrote the play "the inflexible captive". the diaries of caroline girle powys daniel told of her extensive travels in the nation, and the various life styles of polite society she visited. defoe's newspaper was the first great political journal. he claimed that the people have a right to control the proceedings of parliament. essayists like richard steele, who introduced the periodical essay in his newspaper, and joseph addison, in his newspaper, wrote in a conversational style about the social life around them and the thoughts and behavior of common men and women in a light and good-humored way. they separated humor from the old-style farce and gave it taste and gentility. and with this came a moderation, reserve, and urbanity in matters of religion, politics, and society. religious issues even became a matter of indifference. fairies, witches, astrology, and alchemy were no longer taken seriously by educated men. tales of fairies, witches, ghosts, and miracles were deemed appropriate for children. childrens' stories were becoming a distinct literary form. nursery rhymes included "hush-a-bye baby on the tree top" and the five little piggies. "mother goose's melody" was published in . there were picture books for children such as cinderella, red riding hood, and sleeping beauty. craftsmen made small models of their wares, such as dolls' china, dolls' furniture, silver, and flat lead soldiers. babies had rattles and teething rings. in copyrights for books was given for years, renewable for another years. alexander pope's translation of the iliad and odyssey made him financially independent. he collected advance payments from subscribers who would be listed in the book. a new book industry emerged in london with booksellers as master manufacturers who employed writers, authors, copyers, and subwriters. booksellers sold books of sermons, histories, political and literary satires, literary criticism, and dictionaries. there was a growing popularity of novels. books were expensive to buy. regular magazines on the new and strange were published. there were three daily, six weekly, and ten thrice yearly newspapers. newspapers increased in number from founded in to a total of in . by , there were over a million throughout the country. workmen usually began their day by reading a newspaper at a coffee house. authors of books which have been registered at the stationers hall shall have the sole liberty of printing and reprinting such book for years. others who print or sell or publish such shall forfeit the books and pay one penny for each sheet found in their custody, / to the queen and / to the suer. the printer shall give a copy of each book printed to the company of stationers, the royal library, the libraries of the oxford and cambridge universities, and certain other libraries. in , the two universities in england, the four universities in scotland, and the several colleges of eton, westminster, and winchester were given in perpetuity a copyright in books given or bequeathed to them. the british museum was incorporated to hold the collections of robert cotton of manuscripts, books, records, coins, and medals and of hans sloane, which contained rare books, coins, precious stones, pictures, plants, and mathematical instruments and had been left to the public. italian opera was introduced in by georg handel on his visit to england. his music became the standard music of georgian england. the academy of ancient music was founded in . it set the standard of selection and performance. in existence were the violin (including ones made by stadivari), viola, cello, double bass, oboe, trumpet, clarinet, bassoon, trombone, horn, flute, harp, organ, harpsichord, in which the strings were plucked, and piano, in which the strings are struck by little hammers. orchestras had at least thirty members. many hymns were written. painting by artists developed. gentlemen had portraits painted of their horses and dogs as well as of family. joshua reynolds painted the wealth and beauty of england. painters such as gainsborough did landscapes and dramatic history paintings too, but neither of these sold as well as portraits. scenery was painted for the theater. places of business had signs painted which portrayed animals. coaches were painted with mythological creatures and such. gentlemen collected antique statuary and painting, such as by rembrandt and rubens. in an academy of painting was founded, which included women painters. the first public exhibition of paintings was in . the society of artists was formed in and incorporated by royal charter in . this differentiated them from the painter-stainers company of face painters, coach painters, and house painters. the royal academy of london was founded in to merge all private academies and societies into one official body and to recognize the best artistic work. joshua reynolds was its first president. it was at first financed by the king. under george i, sculptors became distinct from masons. they did monuments and portrait busts of the royal family, nobles, and great men. from italian influence, palladian architecture came into vogue. it was typified externally by a panoramic look achieved by horizontal lines, balanced alternatives of plain wall and openings, and portico with a heavy pediment like the front of a roman temple. stucco was often used to plaster housefronts, flute columns, and ornament pediments. architects took students. designers of engraved, etched, and historical prints were given the sole right to print them for years. copiers had to forfeit s. per print. foreigners were now interested in learning about english life, philosophy, and opinion. they learned english to read english literature such as shakespeare. no longer were france and italy the only centers of culture and influence on other nations. by , england was the leading sea power by far. the royal society was still the principal focus of scientific activity. issac newton was its president for several years and drew in more foreigners. its members were mathematicians, chemists, botanists, physicians, engineers, authors, poets, and theologians. papers given there generated much discussion at its meetings. newton opined that particles attract each other by some force in a similar way that large bodies attracted each other. this force in immediate contact was exceedingly strong, at small distances performed chemical interactions, and at greater distances had no effect. also there were local associations and societies. there were learned journals such as "philosophical transactions". in , the mercury thermometer was invented by gabriel fahrenheit of germany; this was more accurate than the alcohol and water thermometer. the hydrometer, which measures air humidity, was also invented. these made possible weather forecasting. in the french chemist etienne geoffroy published a table of affinities among chemical substances. carolus linneaus, a swedish naturalist and botanist, established the scientific method of naming plants and animals by genus and species. when he showed that there was a sexual system in plants, church authorities were so shocked that they suppressed this knowledge as they did other scientific knowledge. in , rev. stephen hales discovered the ways that water that plants lost by evaporation was restored by the roots up the stems. he found that gas could be obtained from plants by dry distillation and invented a way to collect gases by heating certain substances. he made ventilators for ships, prisons, and granaries, using the method of injecting air with bellows. this saved many lives in the prisons. hans sloane, the son of a receiver-general of taxes, who became a physician, had collected hundreds of species of plants in jamacia while physician to its governor. he became physician to george ii and was a benefactor to many hospitals and devised a botanic garden in london for the society of apothecaries. in , george hadley, a london lawyer and philosopher, determined that the cause of the trade winds blowing from the west direction was the rotation of the earth. benjamin franklin in observed that a particularly violent storm was in boston a day after a particularly violent was in philadelphia, and realized that they were the same storm, even though the storm's surface winds were from the northeast. he determined that atlantic coastal storms traveled from the southwest to the northeast. in daniel bernoulli, a swiss university lecturer in physics, mechanics, medicine, and anatomy, showed that as the velocity of horizontal fluid flow increases, its pressure decreases. this followed from his theorem that the total mechanical energy of a flowing liquid, comprising the energy associated with fluid pressure, the gravitational potential energy of elevation, and kinetic energy of fluid motion remains constant; that is it is conserved. he demonstrated that the impact of molecules on a surface would explain pressure, and that assuming the constant random motion of molecules, pressure and motion will increase with temperature. he explained the behavior of gases with changing pressure and temperature. in , scotsman physician joseph black identified carbon dioxide, the first gas recognized as distinct from everyday breathing air. he did this by using a balance to weigh alkalis before and after exposure to heat. they lost weight by losing carbon dioxide. he then ascertained the effects of carbon dioxide on animals and its production by respiration, fermentation, and burning of charcoal. at this time, all flammable materials were thought to contain "phlogiston", which was given off as they burned and was associated with the transfer of heat. plants were thought to remove phlogiston from the air and therefore burned when they were dry. in , joseph priestly, a nonconformist minister, schoolmaster, and tutor, discovered oxygen by heating red oxide of mercury. he got interested in the study of gases by watching the process of fermentation in a brewery next to his house. his gas collection techniques enabled him to work with gases soluble in water. he showed that the processes of combustion, respiration, and putrefaction caused one-fifth of air exposed over water to disappear, and that plants restored air vitiated by these processes. when he isolated oxygen, he noted that it was better than air in supporting respiration and combustion produced by heating certain metallic nitrates. the differences between acids, bases, and salts and their relationship to one another became understood. there was some theoretical as well as empirical knowledge about metals, e.g. in boiling points, intermetallic compounds, and changes in properties. static electricity was being discerned. it had been noticed that shaking a mercury barometer produced a strange glow in its "vacuum". experiments showed that a glass rubbed in vacuo would shine brightly and that an exhausted glass globe rapidly whirled on a spindle and rubbing against the hand produced a brilliant glow. and further, as newton wrote: "if at the same time a piece of white paper or white cloth, or the end of ones finger be held at the distance of about a quarter of an inch or half an inch from that part of the glass where it is most in motion, the electric vapor which is excited by the friction of the glass against the hand, will by dashing against the white paper, cloth, or finger, be put into such an agitation as to emit light, and make the white paper, cloth, or finger, appear lucid like a glowworm". in the study of electricity, conductors and insulators were recognized. there were demonstrations of electrical phenomenon such as seeing brandy ignited by a spark shooting from a man's finger and transferring an electrical impulse among a circle of people by their holding hands. electricity was stored in an early type of capacitor. benjamin franklin "caught" lightning with a sharp pointed wire attached on top of a kite which led down to a key. when a thunder cloud electrified the kite, a charge could be seen coming from the key to an approaching finger. this charge was stored and then reproduced to create the same feeling of electrical transference among hand-holders as a rubbed glass globe, thereby illustrating that it was the same phenomenon as electricity. this countered the theological belief that thunder and lightning were signs of divine displeasure or the work of the devil. he invented the lightening rod, which was then used to protect houses. about ten years later, the first lightening rod on an english church was erected. franklin theorized that there were electric charges everywhere and designated them as positive or negative. he observed that opposite charges attracted each other, but that like charges repelled each other. in , joseph priestly did an experiment suggested by franklin and showed that electrical force follows the same law as gravitational force; that is, that the attraction or repulsion between two electrical charges varies inversely to the square of the distance between them. joseph-louis lagrange from france developed differential equations. natural history museums were established. a group split off from the royal society to show collections of curiosities. in , a self-educated mechanic founded the society for the encouragement of arts, manufactures, and commerce. it had sections on agriculture, manufactures, mechanics, chemistry, liberal arts, and trade and colonies. it sponsored contests at which prizes were given, such as that in for the best invention of a machine that would spin six threads of wool, flax, cotton, or silk at onetime with only one person attending it. machines still mostly relied on human, animal, and water power. abraham darby was a quaker and millwright who made large cooking pots of iron, which cost less than bronze. around , he experimented with various substances to take the place of wood charcoal in iron smelting. coal was a remote possibility. in forging or working metals coal had more or less the same qualities as wood charcoal, but this was not the case in smelting ores, especially iron ore. coal contained sulphur compounds which caused the iron ore to deteriorate. so he controlled the burning of coal to burn out these impurities, which produced coke. his son took over after his death and improved the methods of coking, strengthened the bellows, and added ore limestone and other reagents to the mixture. by , his large blast furnace using both pit coal and wood charcoal was very productive. he made iron goods of such quality as those previously imported. in , richard reynolds replaced the wooden rails connecting a blast furnace to mines with cast iron rails. he had apprenticed as a grocer and then became a partner in a large ironworks of darby, whose daughter he married. after darby died and before darby's sons became of age, reynolds was in charge of the ironworks. he cast cylinders of the early steam engines. in john roebuck, a physician and son of a prosperous manufacturer of sheffield goods, found a cheaper way to manufacture sulphuric acid. he did this by using leaden chambers instead of glass globes to collect the vapor from burning nitre and sulphur over water. this reduced the cost of sulfuric acid to one-fourth of its previous cost, so that sulfuric acid came to be used to bleach linen instead of sour milk. he also made cast iron into malleable iron by smelting iron using coke from pit-coal instead of charcoal. but flooding in his mines and further ventures resulted in his ruin and bankruptcy. thomas newcomen, a baptist ironmonger, blacksmith, and locksmith, supplied iron tools to mine workers. he was aware of the problem of flooding of mines and the awkward system of pumps which were used one above the other and were powered by teams of horses. he made a very valuable contribution to power generation by inventing the atmospheric pressure steam engine around . he did this by connecting theory with experiment, through the use of scientific knowledge, especially the royal society's investigation into atmospheric pressure. first cold water was poured on a cylinder in which a piston could move up and down. this caused steam inside the cylinder to cool and condense into water. the vacuum created inside the cylinder under the piston caused atmospheric pressure on top of the piston to push the piston down. the piston was attached by a rod to the end of a beam which end then swung down from a point on a vertical stand to which it was attached. when the beam swung, its other end, which was attached to a rod connected to a pump, rose, thus working the pump. then steam from water heated in a boiler under and communicating with the cylinder was allowed into the cylinder under the piston. this decreased the atmospheric pressure on the piston from above and allowed the piston to rise by a counterweight on the rod over and connecting to the pump. boys opened and closed the steam valve, which let steam into the cylinder from below, and the water valve, which let cold water pour on the cylinder from above. then the boys were replaced by the valves being connected to the oscillating beam which caused them to open and close at perfectly regular intervals. a story gives the credit for this improvement to an inventive valve boy who wanted to play with his friends. in , the mining industry used this steam engine to pump water out of mine-shafts which had flooded. these engines were also used to supply water to reservoirs locks at canals, and drinking water facilities in towns. one such engine developed power equivalent to fifty horses working at one sixth the cost. it was the first automatic machine since the clock. then james watt invented the steam engine which used steam as a force acting on the piston. watt made his living making scientific instruments for glasgow university. around , he was fixing one of newcomen's engines belonging to the university, when he saw its inefficiencies, such as the loss of heat when the cylinder was cooled. he saved this heat energy by having the steam condensed in another vessel distinct but connected to the cylinder. this condenser was kept constantly cool by cold water. so the condensed steam was pumped back into the boiler and it circulated continuously, thus obviating the need for constant resupply of water. in order to avoid the necessity of using water to keep the piston air-tight, and also to prevent the air from cooling the cylinder during the descent of the piston, he used the expansion of the steam to push the piston instead of atmospheric pressure. then, in order to expand the use of the steam engine beyond that of a pump, he converted the oscillating motion of the beam into rotary motion. he formed a partnership with john roebuck, who had a two-thirds interest. but when roebuck needed money, he sold his interest to matthew boulton. boulton wanted better power that that of his watermill for his workshops that made metal buttons, watch chains, shoebuckles of engraved steel, ornamental bronzes, vases, chandeliers, tripods, silver and plated wares, and imitation gold and tortoiseshell work. in dry weather, about eight horses were needed to aid in driving the machinery. a steam pump could pump water from the bottom of the watermill to the top to be used again. he had built up this factory of five buildings and six hundred workers, with , pounds derived from his marriage to an heiress. by , the partnership had built a model steam engine with rotary power whose design could be sold. the price of the engine was set as the amount of money saved on fuel costs in the first three years of its operation. this machine was a relatively economical user of energy, capable of performing almost any kind of work. about , john wilkinson, the son of a farmer who also oversaw an iron furnace, substituted mineral coal for wood charcoal in the smelting and puddling of iron ore. in he made it possible to transport coal out of mines on rail wagons drawn by horses. as father of the iron industry, he made iron chairs, vats for breweries and distilleries, and iron pipes of all sizes. he provided watt with metal cylinders of perfectly accurate shape, which were necessary for the smooth working of watt's steam engine. in he bought a pumping steam engine from boulton and watt's company for his ironworks. it pumped three times as fast as newcomen's engine. watt's steam engine came to be used for power-loom weaving and then for all sorts of manufactures. it would put england ahead of every manufacturing country in the world. millwrights built, installed, and later designed not only steam engines but the machinery that they drove. these men were essential in setting up the first factories. they were the most imaginative and resourceful craftsmen. they knew how to use a turner's, a carpenter's and a blacksmith's tools and had supervised or done smith work, brick-laying or stone-mason's work in erecting and maintaining windmills with their many gears and bearings. there was a good deal of variety in mills, as well as in the structure and workmanship of them, some being worked by horses, some by wind, and others by water. they had some knowledge of arithmetic and practical mechanics. they could draw out a plan and calculate the speed and power of a wheel. although technically in a branch of carpentry, the millwrights learned to work with metal as well. metal was superior to wood not only because of its strength but because wood parts were irregular in motion and wore out rapidly. so iron and brass parts came to replace wood and leather parts. in , j. paine got a patent for rolling iron instead of hammering it. the iron bars, being heated in a long hot arch or cavern passed between two large metal rollers, which had certain notches or furrows on their surfaces. around , clockmaker and quaker benjamin huntsman was struck with the difficulty of finding finely tempered steel for the springs of his watches and pendulums of his clocks. he experimented for years to find a homogeneous and flawless metal, and finally invented cast steel, which was much harder than ordinary steel. he did this by remelting refined high quality wrought iron bars at very high temperatures in sealed fireclay crucibles, together with small quantities of charcoal and ground glass as reagents. this distributed the carbon evenly in the metal, which hammering could not do. he approached the sheffield cutlers, who finally agreed to try his cast steel for fear of losing their business to some other manufacturers who were approaching huntsman. since huntsman had no patent, he worked at night and employed only men who would keep his secret. his steel was made at night. his factory became prosperous about and the excellence of his steel manufacture was never equalled. steel and wrought iron was scarce and expensive. around , iron founder samuel walker, discovered huntsman's secret by appearing at huntsman's factory disguised as a shivering tramp who asked to warm himself by the furnace fire. he feigned sleep while watching the whole process. when he began to make cast steel, his annual output grew from pounds in to , pounds in and he made a fortune. silver was plated over copper from . white metal from tin and antimony was used from about . the brass industry was beginning to produce brass from copper and zinc that was as good as foreign brass. the secret of plate-glass manufacture came to england in the s. in , a corporation was set up for the manufacture of plate glass. it could raise joint-stock because of the great risk and large expense of the undertaking. in , chemist william cookworthy was given a fourteen year patent for the discovery of certain clay and stone in england from which he made england's first true porcelain, i.e. that which could sustain the most extreme degree of fire without melting, and also had grain as smooth and lustrous, and the transparency and beauty of color, equal in degree to the best chinese or dresden porcelain. the import duties on diamonds, pearls, rubies, emeralds and other precious stones and jewels was dropped to increase the business of cutting and polishing them. the world's first chocolate factory was set up in england in . the fanmakers were incorporated in . a linen company to sell cambricks [a fine white linen] and lawns [a thin and fine linen] was incorporated in . a free market for fish was established in westminster to supplement the free fish market in london to prevent forestalling and monopolizing of the fish industry and to increase the number of fishermen. duties for its maintenance were paid by the fishermen. certain men were given the right to incorporate fisheries of white herring for twenty one years to improve the fisheries and give employment to the poor. they were authorized to sell subscriptions and to build ships provided the fishery employ , in such fishery. there were restrictions on taking fish from rivers during their breeding season. herring fishermen were allowed to land and dry their nets and erect tents and pickle, cure, and reload fish on uncultivated land up to yards beyond the high water mark all any shore, forelands, harbors, and ports, without paying the landholder. later, a bounty of s. per ton was authorized to be given for vessels that were fitted out and used for white herring fishery. anyone wishing to be admitted to the levant (turkey) trading company was to be made free of such on paying pounds, so that this trade may be increased. in the s the first cooking school was established by mrs. elizabeth raffald, a servant. as for health, there were many occupational hazards. these included paralysis by mercury of refiners of silver and gold, paralysis by mercurial fumes of molten lead by plumbers, palsy of glaziers working with melted lead and of watch gilders, lead poisoning of painters, blinding by sawdust of sawyers, and the affects of fumes on pewterers and letter founders. particles of copper were breathed in by copper workers, whose hair and beards then turned green. braziers became deaf. hairdressers, bakers, masons, bricklayers' laborers, coal heavers, chimney sweeps, flax and feather dressers, and workers in leather warehouses suffered pulmonary diseases. chimney sweeps also had warty skin cancer from their bodies being habitually covered with soot and the lethal cancer of the scrotum. working with charcoal fires affected confectioners, chocolate makers, and sail-cloth makers. tanners, catgut makers, and tallow-candle makers became nauseous. heavy work weakened many bodies and caused hernias. bending over work for long hours caused stooped posture and hump backs. the association between dirt and disease was just beginning to be made. the principles of infection and hygiene were not well understood. bathing every couple of months was not unusual. there was some theological feeling that cleanliness betokened pride and filthiness humility. most houses had a bathtub that could be placed beside the fire in a bedroom. about % of the population had been getting smallpox, which blinded, maimed or disfigured many. deaths from smallpox were only occasional in the country, but constant in london, where about % of every generation died from it. making death commonplace, especially in the winter months when thick, dirty clothes were worn day and night, were typhus, which was carried by lice; typhoid, which was spread by flies from horse dung; tuberculosis; and influenza. dysentery and diarrhea made death commonplace especially in the summer when flies transmitted bacteria from filth to food and the water was its most foul. there was great meaning in the prayer "now i lay me down to sleep; i pray the lord my soul to keep; if i should die before i wake, i pray the lord my soul to take." thyphus spread easily in hospitals and gaols where vermin could live in the beds made of wood. colds and toothache were also common. venereal disease was not uncommon among the well-to-do in london. condoms were used to deter disease, but were still crude, coarse, uncomfortable, and unreliable. london had almost double the mortality rate of the nation. the number of baptisms in london were about % of its burials. about % of the deaths in london were among children under two, due to infantile diseases fostered by malnutrition, maternal ignorance such as giving babies adult food, ill-health, bad water, dirty food, poor hygiene, and overcrowding. many children died from diptheria, measles, scarlet fever, and smallpox. ten or twelve children with three or four surviving was a common family pattern. many well-to-do in london kept their children in the country for their better health. no matter what the ailment, physicians regularly bled patients and often gave them enemas with wooden funnels. sometimes a blister or irritant was applied to the skin to draw out the evil humors. cupping was used to provide suction to remove pressure from various parts of the body. also used were poultices, ointments, and herbal treatments, notably quinine. opium was given to deaden pain. there were about drugs in use. charms, spells, astrology, and folk remedies still played a major role in medicine. a physician attended surgeries to give advice. physicians could visit apothecary shops once a year and throw away any drugs falling below an arbitrary standard of excellence. in the house of lords decided a jurisdictional contest between the college of physicians and the society of apothecaries. it permitted the apothecaries to direct the remedies as well as to prepare them, although they could only charge for the drugs they provided. the poor sought advice from apothecaries. there was progress in health. scurvy virtually disappeared as a cause of death due to the eating of more vegetables. and people were cleaner when wearing cotton, which had to be washed. in , free inoculations for smallpox began in england, pioneered by lady mary wortley montague, also a poet and letter writer. she led the way by having herself and her son inoculated. theologicians denounced this practice as a diabolical interference with disease sent by providence for the punishment of sin. in surgeon william cheselden, whose master was specially licensed to perform the operation of removing stones in the hospital, reduced the death rate for removing stones due to hemorrhage, shock, and infection down to % by his invention of a lateral operation. he also published an anatomy book and treated certain kinds of blindness by forming an opening in the eye to serve as an artificial pupil. sarah wallen mapp was a famous bone-setter. nutritional deficiency diseases were beginning to be understood. in , james lind, a surgeon in the navy who noted that more men died of scurvy than in battle, published his work on his controlled experiment on seamen showing that oranges, lemons, limes, green food, and onions cured scurvy. he published his methods of prevention and cure of malarial fevers and his method of disinfecting ships with the smoke of wood and gunpowder. in , he discovered that steam from salt water was fresh, and proposed a method of distillation to supply ships with fresh water. in giovanni morgagni from italy opined that disease resulted from a breakdown of organs and tissues that was viewable on autopsy. he wrote an extensive book showing the anatomy of diseases, e.g. affections of pericardium and aorta, (e.g. aneurysm), valve diseases, ulceration, rupture, dilation, and hypertrophy. he associated clinical observation with anatomy of disease, e.g. attacks on upper part of chest on left side and difficulty breathing and numbness of left arm all ceasing with exertion with dilation of aorta and hardening of arteries, causing delay of blood in the aorta, in the heart, and in the lung vessels. bernoulli showed that the living human body constantly changes so that all its particles are renewed in a certain number of years. frenchman dr. pierre fauchard, the father of dentistry, recommended rubbing one's teeth and gums with a piece of sponge. his book of described methods and instruments. since three out of four babies died shortly after birth, beds in hospitals for pregnant women were established starting in . the next year physicians began to replace midwives. a hospital was established for abandoned foundling children in so they wouldn't die, as they usually did, in the care of parishes or workhouses or be exposed in the streets or left on door steps of the wealthy. it was besieged by women with babies in their arms. in a statute made the principles of the foundling hospital obligatory for all london parish children under six; they were to be sent to nurses outside london who were to be paid at least s. a week by the parish. in , this was extended to all parishes, and nurses who cared for a child well for a year was given a reward of at least s. also, parish children were not allowed to be apprenticed for more than seven years or until age and an apprentice fee of at least pounds, s. was to be paid to the master or mistress by the parish. after , there was a steady growth of population due to improved midwifery. william smellie taught scientific midwifery in london from and wrote a "treatise on midwifery" in , which had a clear explanation of the mechanism of labor. at this time there were several maternity hospitals. forceps existed for difficult deliveries. in , dr. cadogan wrote his book: "an essay on the nursing and management of children, which made a great improvement in the care of young children. for instance, it recommended loose clothing, no tight swaddling clothes, and a simple diet. swaddling clothes were used to retain a baby's evacuations but produced discomfort and serious skin conditions. a hospital was founded for venereal diseases in , another as an asylum for the penitent and orphaned girls who might otherwise be inclined to prostitution, and yet another for prostitutes in . coitus interruptus was widely used for birth control. there were also clandestine abortions and intentional neglect of newborns. melancholy was widespread. suicides were frequent and drugs were sold for this purpose. in , the mentally ill were classified as curable or incurable. there were many private lunatic asylums. a lunatic who was furiously mad and dangerous was required to be safely locked up or chained in his place of settlement. there were frequent and dangerous abuses in madhouses, so in , no one may keep or confine more than one lunatic without a license granted by the royal college of physicians or forfeit pounds. a justice of the peace and a physician inspected all madhouses to observe conditions and care of patients there. if refused admittance, the license was forfeited. in was the last time a monarch touched a person to cure him of a malady such as scrofula. in surgery students began to dissect corpses with their own hands to better learn anatomy. in the company of surgeons was separated out of the company of barber-surgeons. the barbers were proscribed from performing surgery and had to have a separate corporation from the surgeons because of the ignorance and unskillfulness of barbers healing wounds, blows, and hurts e.g. by blood letting and drawing of teeth. there was a surgeon's hall, officers chosen by the surgeons, and bylaws. the surgeons were required to examine candidates for the position of surgeon in the king's army and navy. they were exempted from parish, ward, and leet offices, and juries. in , a statute provided that the corpses of murderers were to be sent to the surgeon's hall to be anatomized, for the purpose of deterring murders. the penalty for rescuing the corpse of a murderer was to suffer death. the first dispensary for the poor was established in to give free medicine and treatment to the infant poor, and then to the infants of the industrious poor. the progress of science was seen to threaten the authority of the church. there was a general belief in god, but not much attention to jesus. feared to come were free thought, rationalism, and atheism. there was still a big gap between local parsons and bishops, who were educated, well-off, and related to the aristocracy. on the whole, preachers talked about morality and christian belief. they stressed good works and benevolence. but many protestant clergy were more concerned with their own livings than with their parishioners. they were indolent and did not set a good example of moral living. from , freemasonry spread and swiftly provided a spiritual haven for those who believed in god and desired ritual and mysticism. about , john wesley became the leader of the methodist religious movement for the mining and industrial laborers. he lead an aesthetic life, eating bread and sleeping on boards. the movement was called methodist because of its methodical regularity of living. it was characterized by an evangelical revival and a promise of individual salvation. the person to be saved from the horrors of eternal damnation in hell was to discipline himself to regular prayer, self-criticism, and hard work and to forsake worldly pleasures such as drinking, overeating, and even frivolous talk. wesley believed in witchcraft and in magic. he opined that bodily diseases and insanity could be caused by devils and some dreams are caused by occult powers of evil. with the methodist movement, there was a concomitant growth of philanthropic activities by the methodists. they gave to the poor, and visited the sick and the imprisoned. wesley preached in the open air where all who wanted to attend could and also could wear whatever clothes they had. though large crowds of poor people were feared because of their mob potential, their meetings were stormed as has been quaker meetings, with the shouts of "the church in danger". the methodists' homes were invaded and their belongings destroyed or taken or their persons beaten with tacit permission of authorities. some justices of the peace drafted preachers into the army or navy as vagabonds. eventually, however, the methodist revival imbued energy and piety into the lethargic clergy of the established church. a new moral enthusiasm and philanthropic energy grabbed the nation. prisons were reformed, penal laws made more wise, slave trade abolished, and popular education given momentum. in the established church, charity gained precedence over theology and comfort over self-examination and guilt. evangelist george whitfield preached calvinism and it split off from methodism. calvinism went into full decline. presbyterianism collapsed into unitarianism and there was a general tendency towards deism. church sanctuary was abolished for those accused of civil offenses. there was much travel by scheduled coaches, which usually carried several passengers and were drawn by four horses. regular service of public vehicles to and from london went four miles an hour; it took two days to go from london to oxford. it was not unusual for a coach to bog down or overturn. sometimes it had to detour around an impassable stretch of road or borrow a couple of oxen from a nearby farm to get out of a quagmire. men and horses drowned in some of the potholes. robbery was endemic and some of the roads were so unsafe from highwaymen that bands of armed horsemen were hired to accompany the coaches. it was not unusual to come across gibbets for hanging at crossroads. at coach headquarters in inns in london, there were casual workers who associated with gangs of thieves specialized in passengers' goods. traveling merchants preferred packhorses to carts because they could cross overland or through watercourses more easily. these pack horses traveled in regular caravans in single file. the leader had a bell around his neck to warn, from a distance, riders or carts coming in the opposite direction. carts traveled about two miles an hour. in the trustee system superseded administration by the justices of the peace of the turnpike system, including tolls and toll booths. the toll booths were frequently attacked by riotous mobs. so anyone pulling down or destroying turnpike gates at which tolls are to be paid shall go to prison or put to hard labor in a house of correction for three months without bail. he shall also be whipped in the market place between : and : . if he offends a second time, he shall be transported for seven years. later the penalty of prison up to three years was added as an alternative. the hundred was to pay the damages up to pounds. the penalty for threatening the toll collector or forcibly passing through was pounds for the first offense, and pounds for the second offense with imprisonment for one year for those who couldn't pay. by , about miles could be made in a day. the turnpike trusts took over most of london's major highways during the s. there was no travel on sundays until . in , shocked by the difficulty caused by bad roads in concentrating the royal army to stop the scottish invasion, the king began systematically to improve all the roads. there was much road and highway widening and repair, and also river bank and pier repair, going on all over the country. marsh lands were drained. harbors were deepened. there were numerous statutes trying to adjust the needs of travel with the condition of the roads. for instance, there must be a pole between the wheel horses or double shafts. carriages, wagons, or carts drawn by more horses, oxen, or animals or with wheels bound iron tires, or with very heavy loads were observed to cause more damage, so they were restricted or had to pay higher tolls. then broad and smooth iron tires were observed to not cause the amount of damage as did narrow or irregular iron tires and their use was encouraged. from , weighing machines were kept at toll gates. by , turnpike roads had to be at least feet wide; hedges and fences thereon had to be taken down by their owners. cartways to markets had to be at least feet wide, and horseways (later ) feet wide. there were ditches, drains, and gutters to carry off water. names and abodes of owners were to be put on carriages, wagons, and carts or forfeit - pounds, except for carriages or coaches of a nobleman or gentleman for his private use or those drawn by only one horse or two oxen, or those with wide wheels and a light load. there were town name signs, direction posts, and milestones. in , the surveyors and the commissioners of turnpikes were given authority to requisition local men, carts and draught animals for compulsory labor, or money instead, in maintaining the roads and making new ditches and drains. they could take any local sand, gravel, chalk, or stone from waste or common land or, if not needed by and satisfaction is made to the owner, from enclosed land. the surveyor was to be chosen locally for a year and could be given an allowance. new roads required the consent of the landowners and a negotiated price. a driver of a carriage, wagon, or cart on the public highway who by negligence or misbehavior causes any hurt or damage to a person or any other carriage or hinders free passage of any other carriage shall forfeit up to s. anyone leaving an empty cart or other obstruction on a public highway shall forfeit up to s. any cart, wagon, or carriage driven without a person on foot or on horseback leading it shall forfeit up to s. any driver of an empty cart, wagon, or carriage who refuses or neglects to make way for any coach or loaded cart, wagon, or carriage shall forfeit up to . any offender may be apprehended by anyone seeing his offense without warrant, who shall then deliver him to a constable or other peace officer. by , the mail service was well-regulated. letter rates within miles of london were d. per piece of paper, then d. per ounce. within miles of new york city in america there were d. per piece of paper, then s. d. per ounce. letters were still carried by post horses. from london to new york, they were s. per piece of paper for the first three pieces, then s. per ounce. in , this rate was extended to all colonial ports. in , canals began to be constructed linking the main rivers. horses or men hauled the barges from the land. now goods of many inland towns cheapened and reached a national instead of just a local market. in an almost illiterate man called james brindley cut the first real canal at worsley for the duke of bridgewater, who owned the coal deposits there. he kept the line of the canal at one level to avoid having to make locks. it crossed one river as a forty foot high aqueduct. he refused to use the beds of small rivers, whose sluggish flow gave no adequate security against silting. coal at the destination point of manchester fell to half its former price. after wedgwood headed a campaign to persuade parliament to construct a certain canal, he bought adjacent land on which he built a great factory. in , the maximum interest rate that could be charged was reduced to % for the advancement of trade and improvement of lands because that rate was the norm in foreign lands. thus the maximum interest rate fell from to to and then to %. when issac newton was master of the mint, he noted that too restricted a currency caused a high interest rate to prevail, which was bad for commerce and the plans to set the poor to work, but that too large a quantity of money in circulation caused interest rates to fall, which encouraged luxury imports and the export of bullion. the bank of england provided a safer deposit and lower interest than goldsmiths or scriveners. it also issued notes for and (since ), and pounds. outside retail trade and wages payments, business was conducted on a credit basis with a paper promise to pay at some future date. check use was still formal and rare. tradesmen typically authorized their apprentices to "write off or draw" from their accounts, bringing their bank books. depositors authorized other people such as certain servants, relatives, cashiers, or company secretaries to make use of their accounts. after , the bank dividend was about % a year. promissory notes are assignable and endorsable and the holder may recover against the signer or any endorser as is the case with bills of exchange. in , no more promissory or other notes, bills of exchange, draughts, or undertakings in writing and being negotiable or transferable may be made for under s., because it was hard for the poorer sort of manufacturer, artificer, laborer and others to comply with them otherwise than by being subject to great extortion and abuse. (cash was to be used instead.) by , government finances had become so chaotic that the chancellor of the exchequer sought to re-establish public credit by means of a chartered commercial company, the shares of which were offered in substitution for government stock. this south sea company was established in with a monopoly to trade in south america. the prospects of hugh profits sent the share prices soaring. there was also an increase in the money supply. these factors led to a speculation bubble in in this stock. also, many stock-jobbers promoted companies of every description, such as one to extract gold from sea-water. there was an insurance boom with about seventy insurance companies in existence, many virtually gambling in life contingencies. there was speculation in insurance for all types of occurrences, such as house-breaking, highway robbery, death by gin-drinking, and horses becoming disabled. the total capital invested in all these enterprises rose to over five times the cash resources of all europe. when the bubble burst, pound south sea stock had gone up to pounds and back down again to . since the government had in effect bought this stock at a low price and paid off its debt with this stock at a high price, this bubble relieved the government of much of its massive debt. it also redistributed wealth. after the bubble burst, investors took refuge in investing in - % government fixed-interest securities. a result of this bubble burst was the chartering of two corporations for marine insurance and prohibition of such by any partnership or firm. private persons could continue to write policies, and they chose lloyd's coffeehouse as their headquarters; it came to dominate the world of marine insurance after the two chartered companies came to concentrate on fire and life insurance. lloyd's list became the foundation for a new newspaper. there were speciality boxes at lloyd's such as on america or the baltic. many ships were reported captured by enemies or pirates, but underwriting insurance was a lucrative business for many. in the gold guinea was assigned a value of s. in , the gold standard was introduced. in , clipped and deficient gold coin was called in to be exchanged for new coin. local taxes were collected for the church, the poor, county courts of justice, borough administration, and highways. national taxes included the income, customs, and excise taxes. when the government tried to levy excise taxes on wine, tobacco, and then on cider, there was a public protest with mobs demonstrating against the power given to excise inspectors to search in people's homes. these excise taxes were no longer levied. duties were placed on items for encouraging industries within the country and to pay the expenses of government. there were more and higher duties to pay for war. at various times there were duties on hides, skins, seal skins, gilt and silver wire, malt, mum (strong beer made from malted wheat), cider, perry, spices, coffee, tea, cocoa nuts, chocolate, cocoa paste, snuff, chinaware, drugs, calicoes, herrings, apples, oysters, raw italian and chinese silk, gum arabic, gum senega, tallow, hogs-lard, grease, beaver skins and wool, imported brandy, raisins, coals and coal dust, coaches for one's own use or for hire (except licensed hackney coaches); silver plate owned by persons, corporations, and bodies politic; leases, bonds, and other deeds; licenses for retailing wine, beer, and ale; % of salaries, fees, and perquisites from office and employments including royal pensions and gratuities over pounds. when the price of wheat was high, as in , when it was s. per bushel, wheat products could not be exported. (at other times, they could not be imported.) duties on imported wheat, barley, rye, oats, beans, rice, indian corn were also dropped. the prohibition of importing salted beef, pork, bacon, and butter was dropped. in , no live cattle, pigs, mutton, pork, beef, either fresh or salted could be exported or forfeit pounds for every such animal or s. per pound of such meat. in , peas, beans, bacon, hams, and cheese could be imported duty free, and in labrador codfish. in , raw goat skins could be imported duty-free to improve the domestic manufacture of red, green, and blue leather. in , there were given costs above which various commodities could not be exported: wheat at s. per quarter, rye, peas, or beans at s., barley and beer at s., oats at s. or forfeit the goods, s. per bushel and the ship or boat in which laden. (there are bushes in a quarter.) a window tax replaced the hearth tax. these duties were s. on dwelling houses, increased by d. per window for houses with - windows, and increased by d. per window for houses with - windows, and increased by s. per window for houses with or more windows, per year to be paid by the occupant. these were increased three more times, until the dwelling house duty was s. and the duty for or more windows was s. another duty for war was that on imported starch, certain imported clothes, cards, dice, soap, vellum, parchment, and paper made in the realm ( d. - s. d. per ream depending on quality) or imported ( s. - s. per ream). for pamphlets and newspapers made in the realm there was a duty of d. per sheet and d. for every advertisement. when the duty was paid, the paper was stamped. the penalty for nonpayment was pounds for sellers and pounds for those writing or printing on the paper. later, there was a penalty for sellers or hawkers of pamphlets or newspapers of imprisonment in a house of correction up to three months, and the apprehender got a reward of s. a parson marrying a couple without publishing banns or license could forfeit pounds. not paying duties was punishable by various forfeitures of money. officers for duties could search warehouses on suspicion of concealment of coffee, tea, chocolate, or cocoa nuts with an intent to avoid duties upon oath before a duty commissioner or justice of the peace setting forth the grounds of such suspicion. a special warrant could be issued authorizing the officer to seize such goods. wars were funded not only by some duties, but by lotteries and short-term funding purchased at % yearly interest from the bank of england and by long-term funding by the sale of annuities. county militias could be raised and called out to march together in order to be better prepared to suppress insurrections or invasions. their horsemen were to be provided with broad sword, a case of pistols with inch barrels, a carabine with belt and bucket, a saddle, and a bit and bridle. the foot soldiers were to be provided with a bayonet, a cartouch-box, and a sword. in the militia act of , there were quotas for each parish, to be chosen by lot from lists of men - years old. after militia service for three years, one could not be called again until by rotation, and, if married, was allowed to practice any trade in which he was able in any town or place. while he was in the militia, his parish had to pay an allowance to his family, if distressed, the usual price of an agricultural laborer, according to the number and ages of the children. quakers could provide a substitute or pay money to defray expenses of a substitute for three years. exempt were peers, commissioned officers in royal army or royal castle, other military personnel, members of either university, clergymen, teachers of any separate congregation, constables and peace officers, and watermen of the thames river. this militia act was due to an invasion scare in because great britain then had no allies on the continent. the old strategy of maintaining a small army of , men and relying on volunteers had really depended on england's allies to tie down france's land forces. the militia act of was designed to reassure squires they would not be used as adjuncts to the army. only those with much property would be officers. enlistees could still carry on their trades and jobs. costs were to be from general taxation rather than by locality. but it was almost impossible to get officers and there were many riots when parish authorities tried to draw up lists of those liable to serve. in the navy prevented french invasion. able-bodied men without a calling, employment, or visible means of maintenance or livelihood may be searched for and conscripted into the army. volunteers who enlist shall be paid s. and may not be taken out of her majesty's service by any process other than for some criminal matter. king george ii was the last king to lead his troops into battle. later, parishes were given s. for every soldier they summoned. also, persons who had a vote for member of parliament were exempted. whipping was the usual punishment for offenses. a soldier who deserted or joined in any mutiny or sedition in the royal army within the realm was to suffer death or any other punishment determined by court martial. in , a soldier (later, or a marine) who slept at his post, left his post before being relieved, communicated with any rebel or enemy, struck or disobeyed any superior officer could suffer death, including those soldiers in america. during war, chief officers of towns quartered and billeted royal army officers and soldiers in inns, livery stables, alehouses, and victualling houses for d. a day, but not in any private house without consent of the owner. from to , the army regiments were split up and scattered among the ale-houses of small towns for maintenance; this was to disperse the army and also to keep a check on its numbers, which might be surreptitiously increased if they were in barracks. the towns protested and town magistrates imposed severe penalties for small offenses by soldiers. their drunkenness and violence were not tolerated as it was for ordinary people. their officers not being with them, the soldiers retaliated with troublesomeness. as of english troops could be quartered in unoccupied houses or barns and supplied with necessities such as bedding, firewood, candles, vinegar, salt, cooking utensils, and beer or cider. the royal hospital gave pensions to maimed and worn out soldiers treated there. sailors had more status than soldiers because they had regular work as seamen in times of peace and they did not remind the people of the idea of a standing army, which they had hated especially since cromwell. justices of the peace, mayors, and other officers could bind boys as apprentices to sea service if they were at least ten and their parents were chargeable to the parish or begged for alms. this indenture to the masters or owners of ships lasted until the boy reached . the parish paid s. for clothing and bedding for such sea service. no such apprentice could be impressed into royal sea service until years of age. master and owners of ships that carry - tuns had to take one such apprentice and one more boy for the next tuns, and one more boy for every tuns over tuns, or forfeit pounds to the parish. boys voluntarily binding themselves to such sea service were exempt from impress for the next three years. this was to increase the number of able and experience mariners and seamen for the royal navy and for the trade and commerce of the nation. no masters or commanders of merchant ships may proceed on a voyage beyond the seas without first agreeing in writing on wages with the seamen, except for apprentices. such agreement must be signed by the seamen. offenders must forfeit pounds per seaman, which will go the use of greenwich hospital. any seaman leaving the ship before being discharged in writing will forfeit one month's pay because too many have left the ship before it was unladen. there were some ships of tons. the steering wheel had been introduced because a sudden heavy sea could wrest a tiller from the hands of the helmsman. triangular head-sails with jib boom and stay-sails on stays between masts were in use so that ships could sail closer into the wind. the length of ships was still determined by the same length of trees that could be grown. sailing ships were still vulnerable to a lee shore. latitude was easy to determine using an octant and later a sextant with mirrors and a small telescope to measure the angle between a celestial body such as the sun or north star and the horizon. but longitude could not be determined with any degree of accuracy. one method relied on accurate predictions of the future position of the moon as observed from a fixed reference point, such as greenwich. by precisely observing the local time of the moon's occultation of a known star at a particular place, and looking up in a table the predicted time of the event at greenwich, one could approximate the time difference of the place from greenwich. there were so many shipwrecks on this account that the government offered a reward to anyone who found a way to measure longitude accurately. in carpenter and clockmaker john harrison made the chronometer to do this with an accuracy of / seconds per month, and received , pounds. he was promised , pounds to explain the principle of his timekeeper and build three more. the chronometer kept time with extreme accuracy and was mounted to remove the effect of the ship's motion. to find a ship's position, a navigator noted the time and measured the positions of certain stars. he compared these positions with tables that showed the stars' positions at greenwich mean time, and then calculated the ship's position. there was a toll on ships entering the port of london to pay for repairs to its walls. officer positions were no longer bought, but were subject to examination for a minimum of knowledge, especially in navigation. in the naval academy was established. boys entered at age to and spent two or three years there. only about % of the crew of navy ships were volunteers. many were gaolbirds, having chosen the navy over more gaol time for debt. press gangs seized men in the port towns and from ships coming into harbor. from % to % of the crew were foreigners, many of these pressed men. about , the marine society was founded for training and placing poor boys in work in naval and merchant ships. this not only supplied men and boys for the navy, but saved boys from a life of vagrancy and crime. these boys usually became reliable and obedient sailors. the life of a sailor was a hard one, requiring much strength. sailors did not know how to swim, so falling overboard usually meant death. flogging was the usual punishment in the navy, even for small offenses. the amount of flogging due for each offense rose over time. if flogging were fatal, there would be an inquiry and occasionally punishment. a sailor's meals were usually hard bread invested with weevils and maggots, dried or salted meat or fish, and small quantities of oatmeal, butter, and cheese. many sailors had scurvy or other deficiency diseases. experiments with lime and lemon juice as remedies for scurvy were made around , but were not used in the navy until about . many more sailors died from these diseases than from battle. rum and water was a daily ration introduced in . the ordinary sailor was paid about one pound a month, a rate established in s and now out of date. this was not in cash, but in a ticket which entitled him to payment in full if he presented it at the pay office in london, but was subject to swinging deductions if he tried to cash it in another port. prize money from conquered ships was substantial. to encourage seamen to enter the navy, parliament provided that it be divided among flag officers, commanders, other officers, seamen, marines, and soldiers on board every ship of war, including private ships commissioned by the admiral, as directed by the king, or as agreed with the owner of a private ship. it included an enemy's ships, and goods and arms on the ships or in fortresses on the land. there was also bounty money for enemy ships taken or destroyed. for retaking or salvaging english goods taken by the enemy, / th their value was to be paid. privateers taking merchant ships by collusion were to forfeit their ships, with / rd going to the person who makes the discovery and prosecutes. later, any able seaman volunteering for the navy is to receive pounds bounty. any seaman volunteering for the navy shall receive a bounty of pounds. if a navy seaman is killed or drowned, his widow is to receive a year's pay as bounty. no seaman in a merchant ship is to receive more than s. per month because of the present war. still later, anyone who has run goods or avoided customs was indemnified if he enlisted in the navy as a common sailor for three years. those under or over were made exempt from impressment into the king's service. the time of service was limited to five years if the serviceman so demanded. worn out and decrepit seamen no longer being treated at the royal hospital for seamen at greenwich are to receive a pension as determined by the hospital. in war, the navy used blockading tactics and attack by fireships grew obsolete. in peace, when not used in convoys to remote lands, many ships of war were used as cruisers to guard the coast and trade and to accompany merchant ships going out and returning home. about , marine forces of the navy were raised and quartered on shore. no war ship may carry goods except gold, silver, and jewels and except the goods of a ship in danger of shipwreck or already shipwrecked. the king was authorized to prohibit the export of gunpowder, saltpeter, ammunition, and arms. when a ship had been forced on shore or stranded on the coast, it had been the practice for people to plunder it and to demand high payment for salvaging its goods. so a statute required that salvage only be done by sheriff, mayors, and other officials. a person who defacing the marks on goods or hindering the saving of the ship had to pay double satisfaction to the person aggrieved and spend months at hard labor in a house of correction. if a person unduly carried off goods, he forfeited treble damages. if he made a hole in the ship or stole the pump from the ship, he was guilty of felony without benefit of clergy. the owner of the island of skerries was allowed to erect a lighthouse and charge passing ships other than navy ships d. per tun. only pilots examined and admitted into the society of pilots and, if no such pilot is readily available, a ship's own owner, master, or mate may pilot ships up the thames river, or forfeit pounds for the first offense, pounds for the second, and pounds thereafter. any pilot losing a ship may no longer be a pilot. there must be at least qualified pilots. the prices of piloting are pounds s. for ships drawing feet of water, and s. more for each additional foot drawn up to pounds s. for ships drawing feet of water. to preserve navigation, ships may not throw any ballast, rubbish, gravel, earth, stone, or filth into rivers or ports where the tide or water flows or runs or forfeit s.- pounds. ships on the thames river may take as ballast to stabilize a ship without cargo: dung, compost, earth, or soil from laystalls in london. many persons insuring ships for large premiums became bankrupt, thus ruining or impoverishing many merchants and traders. so the king was authorized to grant charters to two distinct corporations for the insurance of ships, goods, and merchandise or going to sea or for lending money upon bottomry (money to be repaid upon return of ship). each corporation had to pay , pounds to the exchequer and to have sufficient ready money to pay for losses insured by them. they were to raise capital stock and could make calls of money from their members in proportion to their stocks for any further money required. any owner, master, or mariner who casts away, burns, or otherwise destroys to the prejudice of underwriters of policies of insurance or of any merchants whose goods have been loaded on the ship shall suffer death. the owners of ships are not liable for losses by reason of theft without their knowledge by the master or mariners of goods beyond the value of the ship. this is to prevent the discouragement of owning ships. the insurance of merchant ships must give salvage rights to the insurer. a lender on bottomry shall have benefit of salvage. no insurance may be for a greater amount than the value of one's interest in the ship or in the goods on board. no waterman carrying passengers or goods for hire e.g. by wherryboat, tiltboat, or rowbarge, on the thames river may take an apprentice unless he is a housekeeper or has some known place of abode where he may keep such apprentice or forfeit ten pounds, and if he can't pay, do hard labor at the house of correction for - days. also he may not keep the apprentice bound to him. no apprentice may be entrusted with a vessel until he is if a waterman's son and if is he the son of a landman, and he has had at least two years' experience. none but freemen (i.e. one having served an apprenticeship of seven years) may row or work any vessel for hire or be subject to the same punishment. this is to avoid the mischiefs which happen by entrusting apprentices too weak, unable, and unskillful in the work, with the care of goods and lives of passengers. later amendment required that apprentices be age to and that there be no more than passengers, with the penalty of transportation if there were over and one drowned. no boat on the thames river may be used for selling liquors, tobacco, fruit, or gingerbread to seamen and laborers because such has led to theft of ropes, cables, goods, and stores from the ships. excepted are boats registered at the guilds of trinity and of st. clement, but they must show their owner's name and can only operate in daylight hours. the penalty is forfeiture of the boat. all ships coming from places infected with the plague shall be quarantined and any person leaving a quarantined ship shall return and later forfeit pounds, of which / may go to the informer, the rest to the poor. this was later raised to pounds and six months in prison, and if the person escaped, he was to suffer death. also later, a master of a ship coming from infected places or having infected people on board was guilty of felony and to forfeit pounds. if he did not take his vessel to the quarantine area on notice, he was to forfeit a further pounds (later pounds) and the ship, which could then be burned. the king was authorized to prohibit commerce for one year with any country infected by the plague and to forbid any persons of the realm from going to an infected place. by , there was a clear distinction between a king's private income and the crown's public revenue. from , the king's treasurer as a matter of routine submitted annual budgets to parliament. he was usually also the leader of the house of commons and the chancellor of the exchequer. proclamations by the crown were more restricted to colonial and foreign affairs, to executive orders, and to instructions to officials. the high offices included the chancellor, keeper, president of the council, privy seal, treasurer, and two secretaries of state, who were in charge of all foreign and domestic matters other than taxation, one for the north and one for the south. (wolsey had been the last chancellor to rule england; thereafter the chancellor had become more of a judge and less of a statesman.) other offices were: paymaster general, secretary of war, and treasurer of the navy. starting with the monarch, government positions were given by patronage to friends and relatives, or if none, to the highest bidder. these offices were usually milked for fees and employed deputies, clerks, and scribes who worked for long hours at very modest wages. most people believed that the offices of power and influence in the realm belonged to the nobility and gentry as indubitably as the throne belonged to the king. assaulting, wounding, striking, or trying to kill a member of the privy council engaged in his duties was punishable by death without benefit of clergy. civil and military commissions, patents, grants of any office or employment, including justice of assize, justice of the peace, court writs, court proceedings continued in force for six months after a king's death, unless superceded in the meantime. the king's ministers were those members of his privy council who carried out the work of government. by distributing patronage, the ministers acquired the influence to become leading members of the house of commons or the house of lords. they made policy, secured the king's consent, and then put through the necessary legislation. the king was to act only through his ministers and all public business was to be formally done in privy council with all its decisions signed by its members. the king gradually lost power. the last royal veto of a parliamentary bill was in . by , the privy council ceased making decisions of policy. instead a cabinet not identified with any particular party was chosen by the queen, who presided over their meetings, which were held every sunday. it dealt with parliament. in , the number of peers in the house of lords was fixed, so that the crown could create no more. about , robert walpole, son of a country squire, who came to be first minister of the crown and the leader of the whigs, organized the cabinet so that it was of one view. he led it for twenty years and thus became the first prime minister. he was brilliant at finance and lessened taxation. he restored trust in the government after the south sea bubble scandal. he was successful in preserving the peace with other nations and providing stability in england that led to prosperity. the whigs opposed a standing army and over-reaching influence of the crown. they espoused the liberty of individual subjects. their slogan was "liberty and property". they generally favored foreign wars. members of the parliament felt responsible for the good of the whole country instead of accounting to their electors, but self- interest also played a part. leading commercial magnates of the realm sought to be members of parliament or governors of the bank of england to be able to take up government loans at advantageous rates, snap up contracts to supply government departments at exorbitant prices, and play an important part in deciding what duties should be charged on what goods. about % of the population could vote. voting was open, rather than by secret ballot. seats in parliament could normally be bought either by coming to an arrangement with some landowner who had the right to nominate to a closed seat or by buying enough votes in constituencies where the electorate was larger and the contest more open. factory owners and leading landowners sat together on committees drawing up plans for public works such as canal building, obtained the necessary permits from public authorities and organized the whole enterprise. in , parliament was allowed to last for seven years unless sooner dissolved by the king because of the expense and tumult of elections, which frequently occasioned riots, and sometimes battles in which men were killed and prisoners taken on both sides. politics had become a career. members of parliament could not be arrested while parliament was in session. as of , electees to the commons had to have pounds annual income for knights or pounds annually for burgesses. this did not include the eldest son or heir apparent of any peer or lord of parliament or any person with the above qualifications. the universities were exempted. as of , persons electing a member of the commons must swear or affirm that he has not received any money, office, employment, or reward or promise of such for his vote. if he swears falsely, it is perjury and he must forfeit pounds and may never vote again. later, voters for member of parliament had to have residence for a year. still later, voters were required to have been freemen of the city or town for one year or forfeit pounds, except if entitled to freedom by birth, marriage, or servitude according to the custom of such city or town. voters still were required to have a freehold of land of s. a year income, but holders of estates by copy of court roll were specifically precluded or forfeit pounds. in , since unauthorized persons have intruded into assemblies of citizens of london and presumed to vote therein, the presiding officer shall appoint clerks to take the poll and oath required for elections for parliament, mayor, sheriffs, chamberlains, bridgemasters, and auditors of chamberlains. the oath is that one is a freeman of london, a liveryman of a certain named company, has been so for months, and names his place of abode. the oath for alderman or common council elections is that the voter is a freeman of london and a householder in a named ward paying scot of at least a total of s. and bearing lot. a list of the voters and of persons disallowed is to be given to candidates by the presiding officer. soldiers may not be quartered within miles of a place of election so that the election is kept free. voters in public corporations must have held their stock for six months before voting them to discourage splitting stock and making temporary conveyances thereof to give certain people more of a vote, e.g. in declaring dividends and choosing directors. ambassadors were made immune from arrest, prosecution and imprisonment to preserve their rights and privileges and protection by the queen and the law of nations. the supporters of the bill of rights society was founded and paid agents to give speeches throughout the country and used the press for its goals. james burgh demanded universal suffrage in his book: "political disquisitions". in there was union with scotland, in which their parliaments were combined into one. the country was known as great britain. the last scottish rebellion resulted in attainder of its leaders for levying war against the king. in , they were given the chance to surrender by a certain date, and receive a pardon on condition of transportation. in , anyone impeached by the commons of high treason whereby there may be corruption of the blood or for misprison of such treason may make his defense by up to two counsel learned in the law, who shall be assigned for that purpose on the application of the person impeached. in , counsel may interrogate witnesses in such cases where testimony of witnesses are not reduced to writing. there was a steady flow of emigrants to the american colonies, including transported convicts and indentured servants. delaware became a colony in . in , the king bought carolina from its seven proprietors for , pounds apiece. person having estates, rights, titles, or interest there, except officers, were allowed by parliament to sue the king with the court establishing the value to be paid, but no more than at a rate of , pounds per / of property. georgia was chartered in on request of james oglethorpe, who became its first governor, as a refuge for debtors and the poor and needy. it established the episcopal church by law. in carolina and georgia were allowed to sell rice directly to certain lands instead of to england only. later, sugar was allowed to be carried directly from america to european ports in english ships without first touching some english port. foreigners who had lived in the american colonies for seven years, and later foreigners who served two years in the royal army in america as a soldier or as an engineer, were allowed to become citizens of great britain on taking oaths of loyalty and protestantism. this included quakers and jews. the jews could omit the phrase "upon the true faith of a christian." in , indentured servants in america were allowed to volunteer as soldiers in the british army serving in america. if his proprietor objected, the servant was to be restored to him or reasonable compensation given in proportion to the original purchase price of his service and the time of his service remaining. there was much competition among countries for colonies. quebec and then montreal in in canada were captured from the french. about james cook discovered new zealand and australia; his maps greatly helped future voyages. the english east india company took over india as its mogul empire broke up. manufacturing in the american colonies that would compete with british industry was suppressed by great britain. there were increasing duties on goods imported into the colonies and restrictions on exports. in , parliament imposed duties on foreign imports going to america via britain: to wit, sugar, indigo, coffee, certain wines, wrought silks, calicoes, and cambrick linen. foreign vessels at anchor or hovering on colonial coasts and not departing within hours were made liable to be forfeited with their goods. uncustomed goods into or prohibited goods into or out of the colonies seized by customs officials on the ship or on land and any boats and cattle used to transport them occasioned a forfeiture of treble value, of which / went to the king, / went to the colonial governor, and / went to the suer. any officer making a collusive seizure or other fraud was to forfeit pounds and his office. in , there was imposed a duty on papers in the colonies to defray expenses of their defense. it was thought to be a fair tax because it fell on colonies in proportion to their wealth. the items taxed were to carry a stamp showing that the duty on them had been paid. the duty on every skin, piece of vellum or parchment, and sheet of paper used in any law court was d.- pounds. there were also duties on counselor or solicitor appointments of pounds per sheet. duties extended to licenses for retailing spirituous liquors and wines, bonds for payment of money, warrants for surveying or setting out of any lands, grants and deeds of land, appointments to certain civil public offices, indentures, leases, conveyances, bills of sale, grants and certificates under public seal, insurance policies, mortgages, passports, pamphlets, newspapers (about s. per sheet), advertisements in papers ( s. each), cards, and dice. the colonists saw this as a departure from past duties because it was an "internal tax". all of the original thirteen american colonies had adopted magna carta principles directly or indirectly into their law. the stamp duties seemed to the colonists to violate these principles of liberty. patrick henry asserted that only virginia could impose taxes in virginia. schoolmaster and lawyer john adams in massachusetts asserted that no freeman should be subject to any tax to which he had not assented. in theory, colonists had the same rights as englishmen per their charters, but in fact, they were not represented in parliament and englishmen in parliament made the laws which affected the colonists. they could not be members of the house of lords because they did not have property in england. there were demonstrations and intimidation of stamp agents by the sons of liberty. merchants agreed to buy no more goods from england. the stamp duty was repealed the same year it had been enacted because it had been "attended with many inconveniences and may be productive of consequences greatly detrimental to the commercial interests of these kingdoms". to counter the wide-scale running of goods to avoid the customs tax, the customs office was reorganized in to have commissions resident in the colonies and courts of admiralty established there to expedite cases of smuggling. this angered the colonists, especially boston. boston smuggling had become a common and respectable business. it was the port of entry for molasses from the west indies from which new england rum was made and exported. the entire molasses trade that was essential to the new england economy had been built upon massive customs evasions; royal customs officials had participated in this by taking token customs for the sake of appearance on london and thereby had become rich. in parliament imposed a duty of d. per pound weight on tea and duties on reams of paper, glass, and lead into the colonies. these import duties were presented as external rather than internal taxes to counter the rationale the colonies gave against the stamp tax. but these items were of common use and their duties raised the cost of living. the king's customs officials were authorized to enter any house, warehouse, shop, or cellar to search for and seize prohibited or uncustomed goods by a general writ of assistance. these writs of assistance had been authorized before and had angered bostonians because they had been issued without probable cause. in paxton's case of , the massachusetts superior court had declared legal the issuance of general writs of assistance to customs officers to search any house for specific goods for which customs had not been paid. the authority for this was based on the parliamentary statutes of and authorizing warrants to be given to any person to enter, with the assistance of a public official any house where contraband goods were suspected to be concealed, to search for and seize those goods, using force if necessary. they were called "writs of assistance" because the bearer could command the assistance of a local public official in making entry and seizure. a "general" writ of assistance differed from a "special" writ of assistance in that the latter was issued on a one-time basis. the general writ of assistance in boston was good for six months after the death of the issuing sovereign. authority relied on for such writs was a statute giving customs officers in the colonies the same powers as those in england, a act by the massachusetts provincial legislature giving the superior court of massachusetts the same such power as that of the exchequer, and the massachusetts' governor's direction about to the massachusetts superior court of judicature to perform the function of issuing such warrants. the massachusetts court issued them in the nature of the writs of assistance issued from the exchequer court in england, but had issued them routinely instead of requiring the showing of probable cause based on sworn information that the exchequer court required. few judges in the other american colonies granted the writ. seditious libel trials in england and the colonies were followed closely and their defendants broadly supported. john wilkes, a member of the house of commons, published a criticism of a new minister in . he called king george's speech on a treaty "the most abandoned instance of ministerial effrontery ever attempted to be imposed on mankind". after being found guilty of seditious libel, he again ran for the house of commons, and was repeatedly elected and expelled. he was subsequently elected alderman, sheriff, and mayor of london. in , alexander macdougall was voted guilty of seditious libel by the new york colonial assembly for authoring a handbill which denounced a collusive agreement by which the assembly voted to furnish supplies for the british troops in new york in exchange for the royal governor's signature to a paper-money bill. when he was arrested, the sons of liberty rallied to his support, demanding freedom of the press. benjamin franklin's brother had been imprisoned for a month by the massachusetts assembly for printing in his newspaper criticisms of the assembly. he was forbidden to print the paper. benjamin supported him by publishing extracts from other papers, such as "without freedom of thought, there can be no such thing as wisdom; and no such thing as public liberty without freedom of speech whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech; a thing terrible to public traitors." by statute of , the new york house of representatives was prohibited from meeting or voting until they provisioned the king's troops as required by law. in , harvard college seated its students in class in alphabetical order instead of by social rank according to birth. by , the colonies' boycott of british goods in protest of the new duties cause these imports to decline so much that british merchants protested. so the duties were dropped, except for that on tea, which was retained as a matter of principle to assert the power of the crown to tax the colonies. then in the east india company was allowed to sell tea directly to the colonies to help it avoid bankruptcy. the effect of this was to lower the cost of tea in the colonies because the english middleman, and the american middleman, but also to give the east india company a monopoly. the colonies felt threatened by this power of britain to give monopolies to traders. when the tea ships arrived in boston in late , bostonians held a town meeting and decided not to let the tea be landed. they threw this cargo of tea, worth about , pounds, overboard. this boston tea party was a direct challenge to british authority. in response, parliament closed the port of boston until compensation was made to the east india company. by statute of , no one may enter or exit the port of boston or forfeit goods, arms, stores, and boats carrying goods to ships. every involved wharf keeper shall forfeit treble the value of the goods and any boats, horses, cattle, or carriages used. ships hovering nearby must depart within six hours of an order by a navy ship or customs officer or be forfeited with all goods aboard, except for ships carrying fuel or victuals brought coastwise for necessary use and sustenance of inhabitants after search by customs officers, and with a customs official and armed men for his defense on board. this statute is passed because of dangerous commotions and insurrections in boston to the subversion of the king's government and destruction of the public peace in which valuable cargoes of tea were destroyed. later, the governor was given the right to send colonists or magistrates charged with murder or other capital offenses, such as might be alleged to occur in the suppression of riots or enforcement of the revenue laws, to england or another colony for trial when he opined that an indifferent trial could not be had in massachusetts bay. a later statute that year altered the charter of massachusetts bay province so that the choice of its council was transferred from the people to the crown to serve at his pleasure, and the appointment and removal of judges and appointment of sheriffs was transferred to the governor to be made without the consent of the council. this was due to the open resistance to the execution of the laws in boston. further, no meeting of freeholders or inhabitants of townships may be held without consent of the governor after expressing the special business of such meeting because there had been too many meetings passing dangerous and unwarranted resolutions. also, jurors were to be selected by sheriffs rather than elected by freeholders and inhabitants. the commander of the british troops in north america was made governor. king george thought that the colonists must be reduced to absolute obedience, even if ruthless force was necessary. the people of massachusetts were incensed. they were all familiar with the rights of magna carta since mandatory education taught them all to read and write. (every township of fifty households had to appoint one to teach all children to read and write. every one hundred families had to set up a grammar school.) the example in massachusetts showed other colonies what england was prepared to do to them. also disliked was the policy of restricting settlement west of the allegheny mountains; the take over of indian affairs by royal appointees; the maintenance of a standing army of about , men which was to be quartered, supplied, and transported by the colonists; and expanded restrictions on colonial paper currencies. the virginia house of burgesses set aside the effective date of the port bill as a day of prayer and fasting, and for this was dissolved by its governor. whereupon its members called a convention of delegates from the colonies to consider the "united interests of america". this congress met and decided to actively resist british policy. as opposition to british rule spread in the colonies, a statute was passed that because of the combinations and disorders in massachusetts, new hampshire, and connecticut, and rhode island to the destruction of commerce and violation of laws, these inhabitants should not enjoy the same privileges and benefits of trade as obedient subjects and therefore no goods or wares may be brought from there to any other colony, and exports to and imports from great britain were restricted, on pain of forfeiting the goods and the ship on which they were laden. there was also restriction of their vessels fishing off newfoundland. these conditions were to be in force until the governors were convinced that peace and obedience to laws was restored. later in , these trade restrictions were extended to new jersey, pennsylvania, maryland, virginia, and south carolina. in , because all the thirteen colonies had assembled an armed force and attacked british forces, these trade restrictions were extended to delaware, new york, georgia, and north carolina and expanded to prohibit all trade during the present rebellion to prevent assistance to them. war had started; the new rifle was used instead of the musket. by statute of , anyone harboring of army or marine deserters in the colonies must forfeit pounds, and persuading a soldier or marine to desert drew a forfeiture of pounds or else up to six months in prison without bail and one hour in the pillory on market day. bounties were made available to vessels from and fitted out in great britain for newfoundland fishing. any shipmaster carrying as passengers any fisherman, sailor, or artificer to america shall forfeit pounds because such men have been seduced from british fishing vessels in newfoundland, to the detriment of the fishing industry. the many years of significant achievements of the colonists, such as taming the wilderness and building cities, had given them confidence in their ability to govern themselves. the average colonial family had a better standard of living than the average family in england. many of its top citizenry had reached their positions by hard work applied to opportunities for upward mobility. with the confidence of success, the american colonies in declared their independence from britain, relying on the principles stated by john locke and jean jacques rousseau that man was naturally free and all men equal, and that society was only created with their consent. issac's newtons's unified laws of the universe had contributed to this idea of a natural law of rights of men. thomas jefferson wrote a declaration of independence which listed the colonies' grievances against the crown which reiterated many of the provisions of the petition of right and bill of rights, specifically dispensing with and suspending laws, maintaining a standing army and quartering troops without legislative consent, imposing arbitrary taxation, encouraging illegal prosecutions in strange courts, and corrupting the jury process. it was adopted on july , . - the law - trade and the economy boomed in time of war, buttressed by the increased production in the coal, iron, steel, shipbuilding, and cloth industries. but peace brought depression and much misery, including the imprisonment of many debtors. when many were imprisoned, statutes allowed release on certain conditions. after assets were paid to creditors in proportion to the amounts owed to them, debtors may be discharged from prison if they owe no party more than pounds (later no restriction and still later, pounds, and even later, pounds, and in , pounds, and in , pounds) and take an oath that they have less than ( in ) pounds worth of property (including s. in money in ), because there are so many debtors in prison who were impoverished by war losses and other misfortunes in trades and professions and are totally disabled from paying their creditors and they and their families either starve or are a burden to their parishes and become an occasion of pestilence and other contagious diseases. excepted are those objected to by a creditor who pays for the maintenance of the debtor in prison. prisoners discharged are also discharged from chamber rent and gaolers' fees, but not from their debts to creditors. except that no male prisoner may be discharged during war unless he enlists in the royal army or navy until the end of the war. in , the discoverer of any asset not listed by a debtor was to receive pounds per hundred, and anyone concealing an asset of a debtor was to forfeit pounds and double the value of the asset. a person declared bankrupt shall subsequently be examined from time to time as to their goods, money, or other effects or estate to prevent the frauds frequently committed by bankrupts. a default or willful omission shall be deemed felony without benefit of clergy. a bankrupt or other person concealing goods to the value of at least pounds or his books with intent to defraud is a felony without benefit of clergy. a debtor refusing to come to court for examination or hiding assets of more than pounds is guilty of felony and his goods and estate shall be divided among his creditors. later, a bankrupt coming to an examination was allowed to keep (or / or ) pounds per , up to a maximum of (or or , respectively) pounds if he paid his creditors s. (or s. d. or s. respectively) per pound. his future estate was still liable to creditors (excepting tools of trade, necessary household goods, bedding, furniture, and wearing apparel of the family up to pounds) if it could pay every creditor s. per pound. if he didn't pay this, he could be imprisoned. bankrupts excepted from the benefits of this act are those who lost pounds in any one day or pounds in the preceding year from gambling or wagers. no goods or chattels on lands or tenements which are leased for life or lives or term of years or at will or otherwise "shall be liable to be taken by virtue of any execution on any pretence whatsoever unless the party at whose suit the said execution is sued out shall before the removal of such goods from off the said premises by virtue of such execution or extent pay to the landlord" all money due as rent. if the lessee fraudulently or clandestinely conveys or carries off his goods or chattels with intent to deprive the landlord or lessor from distraining the same for arrears of such rent, the lessor or landlord may, within five days, seize such goods and chattels as a distress for the arrears of rent and may sell them as if actually distrained on the premises. every person under and every woman-covert who is entitled by descent or will to be admitted tenants of any copyhold lands or hereditaments may be ordered to appear by a guardian or attorney to be compelled to be so admitted and to pay such fines as are owing by the lands. if one is so admitted, but does not pay, the lord may enter the lands and receive its rents (but not sell timber) until the fine and costs are satisfied, after which the land is to be given back and may not be forfeited to the lord. tenants holding over any lands after their term expired and after demand for possession was made shall pay double the yearly value of such to the landlord. the landlord may reenter and eject a tenant if rent is in arrears for / year. landlords may distrain within days and sell goods and chattels fraudulently or clandestinely carried off the premises by renters in arrears of rent. this applies to goods sold to others privy to the fraud. they may use force if necessary to break open houses upon giving a justice of the peace reasonable grounds to suspect and to break open other buildings in the presence of a constable. the renter is to forfeit double the value of such. the landlord may distrain the renter's cattle on any common or any growing grain, roots, or fruit. attornments of renters made to strangers who claim title and turn the landlord out of possession are void. chief leases may be renewed without surrendering all the under leases. this is to prevent subtenants from delaying the renewal of the principal lease by refusing to surrender their leases, notwithstanding that they have covenanted to do so. but the rents and duties of the new subleases may not exceed those of their former leases. any person claiming a remainder, reversion, or expectancy in any estate after the death of any person who has cause to believe that that person is dead and the death is being concealed by the person's guardian, trustee, husband, or other person may yearly request an order in chancery for the production of such tenant for life. upon refusal, the tenant for life shall be deemed dead. as of , all devices, legacies, and bequests made by will in great britain or the colonies is void if not in writing and witnessed by three witnesses. no witness may receive under the will. an accessory before or after the fact of felony may be prosecuted and tried not only if the principal accused felon has been convicted, but even if he stood mute or peremptorily challenged over persons to serve on the jury. the accessories shall be punished the same as if the principal had been attainted. buyers and receivers of stolen goods may be prosecuted and punished if they knew the goods to be stolen, even if the principal felon has not been convicted. the punishment will be as for misdemeanor by fine and imprisonment. this is to deter the counselors and contrivers of theft and other felonies and the receivers of stolen goods from taking advantage of the former rule that an accessory could not be convicted or punished unless the principal had first been attainted. and if any captain or mariner or other officer belonging to any ship willfully casts away, burns, or otherwise destroys that ship to the prejudice of its owners or merchants loading goods onto the ship, he shall suffer death as a felon. journeymen shoemakers or employees of such who sell or pawn boots, shoes, slippers, cut leather or other materials for making such goods which are not his proper goods, or exchange for worse good leather which has been entrusted to them, shall for the first offense, recompense the injured person, or if his goods are insufficient for distress, may be whipped. for the second offense, he shall be sent to hard labor in a house of correction for - days. a person who buys or receives or takes in pawn such goods shall suffer the same penalties. justices of the peace may issue warrants to search houses and buildings in the daytime if there is "just cause to suspect" such goods therein based upon information given to him under oath. anyone employed in the working up of woolen, linen, fustian, cotton, or iron manufacture who embezzles or purloins any materials for their work shall forfeit double the value of the damages done and anyone convicted thereof may be put into the house of correction until he pays, or if he can't pay, to be publicly whipped and kept at hard labor for no more than days. persons convicted of buying or receiving such materials shall suffer like penalties and forfeitures as one convicted of embezzling or purloining such materials. laborers employed in such manufacture must be paid in coin and not in cloth, victuals, or commodities in lieu thereof. leatherworkers were added with a penalty of up to double the value. later this statute was amended to include a penalty for the second offense of forfeiture of four times the value, or else hard labor at a house of correction for - months and whipping once or more in the market town. like penalties were given for buyers of such material knowing it to be false. one who neglected finishing and delivering such goods because he was leaving this employment were to be sent to the house of correction for up to one month. the penalty for possessing or offering to sell any hare, pheasant, partridge, moor or heath game or grouse by any carrier, innkeeper, victualler, or alehouse keeper is pounds, / to the informer, and / to the poor of the parish. if unable to pay, the offender shall be placed in the house of correction for three months without bail. unauthorized persons keeping or using greyhounds, setting dogs, or any engine to kill game shall suffer the same penalties. in , anyone killing hare at night or using any gun, dog, or other engine to take or kill or destroy any hare, pleasant, partridge, moor game, heath game, or grouse in the night shall go to gaol or the house of correction for - months without bail and whipped for the first offense and for - months without bail and whipped for any further offense. if such occurs on a sunday, the offender must forfeit - pounds or go to gaol for - months. in , no one may kill or take or possess any heath fowl or any grouse except at a limited period during the year. each manor may have only one gamekeeper allowed to kill game such as hare, pheasant, partridge and only for his household's use. this gamekeeper must be either qualified by law or a servant of the land's lord. other persons possessing game or keeping a greyhound or setting dogs or guns or other devices to kill game must forfeit them and five pounds. anyone killing or attempting to kill by shooting any house dove or pigeon shall forfeit s. or do hard labor for one to three months. excepted are owners of dove cotes or pigeon houses erected for the preservation and breeding of such. a gamekeeper or other officer of a forest or park who kills a deer without consent of the owner must forfeit pounds per deer, to be taken by distress if necessary, and if he can't pay, he is to be imprisoned for three years without bail and set in the pillory for two hours on some market day. a later penalty was transportation for seven years. anyone pulling down walls of any forest or park where deer are kept without the consent of the owner must forfeit pounds and if he can't pay, he is to be imprisoned for one year without bail and spend one hour in the pillory on market day. later, the killing of deer in open fields or forests was given the same penalties instead of only the monetary penalty prescribed by former law (former chapter). the penalty for a second offense was given as transportation for seven years. anyone beating or wounding a gamekeeper with an intent to kill any deer in an open or closed place was to be transported for seven years. anyone who apprehends and prosecutes a person guilty of burglary or felonious breaking and entering any house in the day time shall be rewarded pounds in addition to being discharged from parish and ward offices. anyone who feloniously steals or aids in the stealing of goods, wares, or merchandise over s. from a shop, warehouse, coach house, or stable (by night or by day, whether the owner is present or not, whether there is a break in or not) may not have benefit of clergy. anyone stealing goods of s. worth from a ship on any river or in any port or creek or from any wharf may not have benefit of clergy. anyone receiving or buying goods they know to be stolen or who harbors or conceals any burglars, felons, or thieves knowing them to be such shall be taken as accessory to the felony and shall suffer death as punishment if the principal felon is convicted. a person taking money or reward for helping any other person to stolen goods or chattels is guilty of felony unless he brings the thief to trial. as of , any person convicted of grand or petit larceny or any felonious stealing or taking of money, goods, or chattels, either from the person or from the house of any person who is entitled to benefit of clergy and who is liable only to whipping or burning in the hand may instead be transported to the american colonies to the use of any person who will pay for his transportation for seven years. any person convicted of an offense punishable by death and without benefit of clergy and buyers and receivers of stolen goods may be given mercy by the king on condition of transportation to any part of america to the use of any person who will pay for his transportation, for fourteen years or other term agreed upon. returning before the expiration of the term is punishable by death. anyone assaulting another with an offensive weapon with a design to rob may be transported for seven years. any person armed with swords, fire-arms, or other offensive weapons and having their faces blackened or otherwise being disguised, who appears in any forest, park, or grounds enclosed by a wall or fence wherein deer are kept (including the king's deer) or in any warren or place where hares or conies are kept or in any high road, open heath, common, or down, or who unlawfully hunts, wounds, kills, or steals any deer or steals any hare or rabbit or steals any fish out of any river or pond or who unlawfully and maliciously breaks down the head or mound of any fish pone, causing the loss of fish, or who unlawfully and maliciously kills, maims, or wounds any cattle, or who cuts down any trees planted in any avenue or growing in any garden or orchard for ornament, shelter, or profit, or who sets fire to any house, barn or out house [outer building], hovel, or stack of grain, straw, hay or wood, or who willfully and maliciously shoots any person in any dwelling house or other place, or who sends any letter with no signature or a fictitious signature, demanding money, venison, or other valuable thing, or who forcibly rescues any person lawfully in custody for any of these offenses, or who procures others by gift or promise of money or other reward to join with him in any such unlawful act is guilty of felony and shall suffer death without benefit of clergy. persons abetting them are also guilty of felony and shall suffer death without benefit of clergy. attainder shall not work corruption of the blood, loss of dower, or forfeiture of lands, goods, or chattel. the persons sustaining damages can recover pounds or less from the hundred, with inhabitants paying proportionately, unless one of the offenders is convicted within six months. if other hundreds have not diligently followed the hue and cry, they shall pay half such damages. in , it was required that there be notice to the constable or other officer or tythingman and public notice in the london gazette describing the robbery, offenders, and goods taken before the hundred had to pay damages. also, it did not have to pay damages if one offender was apprehended with days of publication in the london gazette, but did have to pay the apprehender pounds. in was also included letters threatening killing people or burning houses, barns or stacks of grain, hay, or straw, without any demand. also, persons who rescued such offenders from gaol were given the same penalty. later, persons obtaining money or goods by false pretenses with an intent to defraud or cheat or sending a letter without a true signature threatening to accuse any person of a crime with an intent to extort money or goods, are punishable by fine and prison, pillory, or whipping or transportation for seven years. later, no person may recover more than pounds after a hue and cry unless there are at least two witnesses to the robbery. no one may advertise a reward for return of things stolen or lost with no questions asked, because this has resulted in thefts and robberies. justices of the peace may authorize constables and other peace officers to enter any house to search for stolen venison. any person apprehending an offender or causing such to be convicted who is killed or wounded so as to lose an eye or the use of a limb shall receive pounds. any person buying suspect venison or skin of deer shall produce the seller or be punished the same as a deer killer: pounds or, if he couldn't pay, one year in prison without bail and one hour in the pillory on market day. an offender who discloses his accomplices and their occupations and places of abode and discovers where they may be found and they are subsequently convicted, shall be pardoned. anyone stealing sheep or cattle or parts thereof is a felon and shall suffer death without benefit of clergy. persons who steal or aid in stealing any lead, iron bar, iron gate, palisadoe, or iron rail fixed to any house or its outhouses, garden, orchard, or courtyard is guilty of felony and may be transported for seven years. in also included was copper, brass, bell-metal, and solder; buyers and receivers; and mills, warehouses, workshops, wharves, ships, barges, and other vessels. search warrants were authorized in case of suspicion. officers and solicited buyers and receivers were required to take persons who at night were reasonably suspected of having or carrying such items, to an accounting before a justice of the peace. also a notice was put in the newspaper for any owners to claim such. if the person did not give a satisfactory account of the items, he was guilty of a misdemeanor punishable by forfeiture of pounds or prison up to one month for the first offense, pounds or prison for two months for the second offense, and pounds or prison for any subsequent offense (without bail). an officer or solicited buyer or receiver who did not take a suspect to a justice of the peace was punishable by the same penalties except the amounts of forfeiture were pound, pounds, and pounds respectively. a felon who brought two buyers or receivers to justice was to be pardoned. a description of any goods and the appearance of a rogue or vagabond or idle and disorderly person shall be advertised in a public paper for identification by the owner as stolen. pawning goods without consent of the owner is punishable by forfeiture of s. or hard labor for fourteen days with whipping there. maliciously destroying river banks resulting in lands being overflowed or damaged is a felony for which one shall suffer death without benefit of clergy. later, transportation for seven years was made an alternative. all persons pretending to be patent gatherers or collectors for prison gaols or hospitals and all fencers, bearwards, common players of interludes, minstrels, jugglers, and pretended gypsies, and those dressing like egyptians or pretending to have skill in physiognomy, palm-reading, or like crafty science, or pretending to tell fortunes, and beggars, and all persons able in body who run away and leave their wives or children to the parish shall be deemed rogues and vagabonds. apprehenders of such persons bringing them before a justice of the peace may be rewarded s. any constable not apprehending such shall forfeit s. persons wandering outside the place determined by a justice of the peace to be his settlement may be whipped on the back until it is bloody or sent to hard labor at a house of correction. if he was dangerous and incorrigible, for instance as indicated by swearing falsely before a justice of the peace, he could suffer both punishments with the whipping being on three market days. if he escaped from the house of correction, it was felony. if he has been absent for more than two years, he could be put out as an apprentice for seven years in the realm, in the colonies, or in a british factory beyond the seas. included later were performers for gain from outside their parish of any play, tragedy, comedy, opera, farce or other entertainment of the stage, including performances in public places where wine, ale, beer, or other liquors are sold, or forfeit pounds. excluded were performances authorized by the king in westminster. unlicensed places of entertainment are deemed disorderly (like bawdy houses and gaming houses) because they increase idleness, which produces mischief and inconvenience. persons therein may be seized by a constable. persons keeping such a place shall forfeit pounds. no licensed place of entertainment may be opened until : p.m. later there was an award of s. for apprehending a person leaving his wife and children to the parish, living idly, refusing to work at going rates, or going from door or placing themselves in the streets to beg. this includes begging by persons who pretend to be soldiers, mariners, seafaring men, or harvest workers. these rogues and vagabonds shall be sent to hard labor at a house of correction for up to one month. the real soldiers, mariners, seafaring men, and harvest workers shall carry official documents indicating their route and limiting the time of such passage. persons pretending to be lame who beg are to be removed. if he comes back to beg, his back may be whipped until bloody. if a constable neglects this duty, he shall forfeit s. masters of ships bringing in vagabonds or beggars from ireland or the colonies shall forfeit five pounds for each one. this money shall be used for reconveying such people back at a price determined by a justice of the peace. a master of a ship refusing to take such a person shall forfeit five pounds. these vagabonds and beggars may be whipped. anyone who profanely curses or swears shall suffer the following penalties: day laborer, common soldier, common sailor, common seaman - s., anyone else below the degree of gentleman - s., gentlemen and above - s., and for the second offense, a double fine, for further offense, a treble fine. if a person can't pay, he shall be put to hard labor at a house of correction for ten days, or if a common soldier, common sailor, or common seaman, he shall be set in the stocks for - hours. this is to prevent the provocation of divine vengeance. anyone setting up or maintaining lotteries or deceitful games must forfeit pounds, or go to prison up to months. any one who plays at such, such as by drawing lots or using cards or dice, must forfeit pounds. sales of lottery items, such as houses, lands, plate, jewels, or ships, are void and these items will be forfeited to any person who sues. such have caused many families to become impoverished, especially through their children or through the servants of gentlemen, traders, and merchants. backgammon games are exempt. later, people who lost up to ten pounds in deceitful gaming were allowed to sue to recover this money from the winners. also, anyone winning or losing ten pounds at one time or twenty pounds within hours shall be fined five times the value of such. offenders discovering others, who are convicted, are indemnified from all penalties and shall be admitted to give evidence. no one may run more than one horse, mare, or gelding in a horse race. no prize may be under pounds value. this is because a great number of horse races for small prizes have contributed to idleness, to the impoverishment of the meaner sort of people, and has prejudiced the breed of strong and useful horses. wagers and agreements in the nature of puts and refusals relating to prices of stocks or securities are void. those making or executing such agreements must forfeit pounds. those selling stock which one does not possess must forfeit pounds. brokers negotiating such agreements must forfeit pounds. only a person with an interest in the life or death of another may have insurance on this other, to prevent the mischievous kind of gaming that has been introduced. the punishment for forgery or counterfeiting or assisting in such or claiming a counterfeit item is good while knowing that it is not, with an intent to defraud is death without benefit of clergy. the punishment for perjury or subordination of perjury is hard labor in the house of correction for up to seven years or transportation for up to seven years. the punishment for altering numbers on bills of exchange or other payment papers is death. it is high treason to counterfeit the coinage. a person who tenders coin, knowing it to be false, shall spend six months in prison and acquire sureties for good behavior for the next six months. if he offends again, he shall spend two years in prison and acquire sureties for good behavior for the next two years. the third offense is felony without benefit of clergy. in , makers, aiders, or possessors of any frame, mould, or instrument for forging paper notes of the bank of england and putting this identification thereon is felony for which one shall suffer death without benefit of clergy. anyone who forges promissory notes, bills of exchange, or inland bills of the bank of england by engraving or etching on metal or wood "bank of england" or "bank post bill" shall go to gaol for up to six months. anyone selling gold or silver ware, vessel, plate or other item large enough to be marked which has not been marked by its maker shall forfeit pounds or be kept at hard labor up to six months. anyone counterfeiting such mark shall forfeit pounds. later, vendors of these items were required to be licensed and the penalty for counterfeiting was raised to felony for which one shall suffer death without benefit of clergy. later still, transportation for fourteen years was allowed as an alternative. if an item was not all silver, e.g. had metal underneath, pounds was to be forfeited. in , receivers of stolen jewels and gold and silver plate and watches knowing them to be stolen, in cases of burglary and highway robbery, may be transported for years. apples and pears may not be sold by any measure other than a standard water measure, or forfeit s., one-half to the informer, and one-half to the poor, except for measures sealed by the company of fruiterers. this is to decrease the suits between buyers and sellers. there shall be enough silver and gold on silver and gold plated silk thread and wire so that it does not crumble off, thereby wasting the bullion of the nation. this is also to encourage its export by making it competitive in trade with such foreign articles, which may not be imported. malt to be sold or exported must not be fraudulently mixed with unmalted grain to lower duties payable or forfeit s. any one who adulterates coffee with water, grease, butter, and such shall forfeit pounds, / to the king, and / to the suer. walnut tree leaves, hop leaves, sycamore leaves and such may not be made to imitate tobacco leaves for sale or forfeit s. per pound. persons near london may not make unsound, hollow, or improperly heated bricks. makers of narrow woolen cloths must weave or set in the head of every piece his initials or forfeit one pound. this is to prevent frauds and abuses, particularly in stretching and straining the cloth. the fulling mill owner must append his seal of lead with his name and with his measurements. the searcher to be appointed must measure such cloths when wet for conformity to standard measurements and append his seal with his measurements. he may also inspect any places he chooses. in , wool making employees not returning all working tools and implements and wool and all materials with which entrusted back to their employer or who fraudulently steams, damps, or waters such wool or who takes off any mark on any piece of cloth shall go to the house of correction for one month. if he absconds with or sells such or anyone fraudulently buys or receives such from him, a search warrant may be issued to seize any other such tools or material. if found, the person may be brought to account before a justice of the peace, and if the account is not satisfactory, he shall forfeit such. a search warrant may also be issued for houses on "just cause to suspect" by oath of a credible witness. for a second offense, the penalty is up to three months in a house of correction. for a third offense, the penalty is up to six months in a house of correction and public whipping. bakers must mark their bread with w for white, wh for wheaten, and h for household or forfeit s. to the informer. in , a new assize of bread set prices for rye, barley, oats, and beans by the bushel. the prices for the three qualities of wheat, for wheaten (prized and unprized), and for household grain by the bushel were to be determined from within a statutory range by the local mayor or justice of the peace. mayors and justices of the peace were to determine a fair profit for their local bakers for all the types of bread. a miller, mealman, or baker adulterating bread was to forfeit s. pounds, part of which money could be used in publishing his name, abode, and offense in the local newspaper. later, there was a forfeiture of - s. for every ounce underweight. household bread was to be / cheaper than wheaten or forfeit - s. bread inferior to wheaten was not to be sold at a price higher than household or forfeit up to s. if the forfeiture was not paid, it could be levied by distress, or otherwise the offender was to spend one month in gaol or a house of correction. straw to be sold in london must be sound, firmly bound in a truss, and of a given weight or forfeit it and s. if no truss, and s. if in truss but underweight or of mixed quality. handlers must keep registers of sellers, buyers, weights, dates of sale, and prices or forfeit - s. frame-work knitted pieces and stockings shall be marked with the correct number of threads by the master, frame-work knitter, or master hosier, or forfeit the goods and pounds. if a journeyman apprentice, or servant employ does not mark correctly, he shall forfeit the goods and s.- s. sellers of such shall forfeit the goods and pounds per piece. at every fishing season, the quantity of salt, foreign or domestic, used by a proprietor for curing fish for export shall be accounted and sworn to so that it can be compared with the quantity of fish exported by the proprietor to ensure that the salt duties are fully paid, or forfeit pounds. if such salt is sold for other uses than curing fish, the proprietor is to forfeit s. per bushel sold and the users thereof, to forfeit s. per bushel bought, delivered, or used. if one can't pay, he is to be whipped and put to hard labor in a house of correction for up to three months. agreements between coal owners, lightermen, fitters, master or owners of ships, hindering the free sale, loading, and unloading, navigating, or disposing of coals are illegal, null, and void. this is engrossing and has caused the price of coals to go up. no coal trader or dealer may use his own lighters, barges, or other vessels to carry coals on the thames river to and from any ship and to and from any wharf, dock, or creek because this has impaired the business of the watermen and wherrymen, whose vessels must now be registered and display such mark on their hulls. no lightermen nor buyers of coals may act as agent for any master or owner of a ship importing coals into london or forfeit pounds, because this combination has caused the price of coal to go up. selling one sort of coal for another is punishable by forfeiture of pounds. only standard size coal sacks may be used for selling coal and they must be sealed and stamped by an official at the guildhouse before sale. the mayor and aldermen of london may set the price of coals coming into this port. in other areas, justices of the peace set the prices of coals which allowed "a competent profit". if a merchant refused to sell at that price, the justice of the peace could authorize seizure and sale by officers. later, coal measurers must give the coal cart driver a ticket with the name of the sellers and consumers, the quantity and quality of the coal, its price, the date of sale, and the name of the cart driver or forfeit pounds. the cart driver must give this ticket to the consumer or forfeit pounds. if coal is carried by cart without a ticket, the seller forfeits pounds and the driver pounds. anyone who willfully and maliciously set on fire any mine or pit of coal is guilty of felony and shall suffer death without benefit of clergy. anyone who willfully and maliciously floods a coal work, mine pit or who makes underground cavities or passages with intent to destroy or damage such, or obstructs any sough or sewer made for draining such, which has been held in common for years, shall forfeit treble damages. this is to deter these offenses, which have been done to enhance the price of coals and gain a monopoly thereof. if twelve or more people who riotously and tumultuously assemble and disturb the peace, do not disburse within an hour of an order to disburse by a justice or sheriff or mayor, they shall be deemed felons without benefit of clergy. any people pulling down or destroying a church, dwelling house, barn, stable, or other out house; any mill; any engine used for draining water from any coal, lead, tin, or copper mines, or for drawing coals from mines; or bridge, wagon, or fences used in such industry will be deemed felons without benefit of clergy and may be transported for seven years. the cost of repair is to be borne by the hundred or town. owners of timber trees, fruit trees, and others used for shelter, ornament, or profit which are cut down or otherwise destroyed shall be made good by his parish or town, as are hedges and dikes overthrown by persons in the night. in , anyone cutting down or destroying any oak or other timber trees at night shall forfeit up to pounds for the first offense, up to pounds for the second offense, and shall be transported to the colonies for seven years for any further offense. anyone digging up or destroying or carrying away any root, shrub, or plant worth up to s. in a garden, nursery, or other enclosed ground at night shall forfeit up to pounds for the first offense, up to pounds for the second offense, and shall be transported to the colonies for seven years for any further offense. anyone not paying was to be gaoled. aiders and buyers who knew the item was stolen incurred the same penalties. later, many other types of trees, such as beach, ash, elm, cedar, and walnut were included as timber trees, and hollies, thorns, and quicksets included as plants. the previous statute that substituted burning in the cheek for burning in the hand is repealed because this not only did not deter offenders, but on the contrary, made them unfit for honest livelihoods and therefore more desperate. those convicted of theft or larceny shall be burnt in the hand and may be kept at hard labor in a house of correction for - months, without bail. persons using violence to hinder the purchase or transportation of grain, e.g. by beating or wounding a buyer; beating or wounding the driver or horse of a cart loaded with wheat, flour, meal, malt, or other grain, or cutting the harness of or driving away the horse, or cutting or carrying away the sacks of grain is to be put in the common gaol or house of correction with hard labor for - months, and whipped in the market place between : and : . the penalty for a second offense or for destroying a storehouse or granary where grain is kept to be exported or for taking or spoiling such grain, or for throwing such off a ship or vessel is transportation for seven years. the hundreds concerned are to pay damages up to a total of pounds, but only if notice is given to the constable within two days and there is an oath and examination before a justice of the peace within ten days of the owner or his servants. if any offender is convicted within a year, the hundreds are released. anyone who steals at night any cloth or wool or woolen goods set out to dry on racks shall forfeit treble damages, or if he can't pay, be sent to prison for three months without bail. for the second offense, he shall forfeit treble damages and be sent to prison for six months without bail. for the third offense, he shall be transported for seven years. upon complaint, a justice of the peace may authorize a constable or other peace officer to enter and search houses, outhouses, yards, and gardens of a person suspected by the owner. this person shall account to the justice of the peace and may bring a witness to his purchase of the items. if the account is unsatisfactory, he shall be penalized. anyone taking linens, fustians, or cottons set out for whitening, bleaching, or printing up to the value of s. in lands, grounds, or buildings may be transported for seven years. later, this penalty was increased to death without benefit of clergy or transportation for fourteen years. anyone stealing or maliciously pulling up or destroying any turnips on a person's land must pay damages or go to gaol for up to one month. he may be whipped. the penalty for a second offense is three months in a house of correction. this statute of was, in , extended to include potatoes, cabbages, parsnips, peas, and carrots. a penalty up to s. was added. evidence of the owner was to be taken. in , anyone who steals a dog or receives such knowing it to be stolen shall forfeit - pounds for the first offense, and - pounds for the second offense or go to gaol or the house of correction for - months and be publicly whipped there. search warrants may be issued to search for stolen dogs or their skins. one-half of the forfeiture will go to the informer. persons pretending witchcraft, sorcery, enchantment, or conjuration; or telling fortunes; or pretending by occult knowledge to discover the location of stolen goods may be imprisoned for one year without bail and put in the pillory in the market place once in every quarter of such year. anyone stealing goods off shipwrecks, or putting out a false light to bring a ship to danger, or beating or wounding with an intent to kill or otherwise obstructing a person escaping from the ship to save his life shall suffer death without benefit of clergy. except that good of small value taken without violence shall be punished as petit larceny. the houses of suspect people may be searched by warrant. if there are goods found or if people are found offering goods to sell, they may be ordered by a justice to give an account of these goods. if the account is not satisfactory, the punishment is forfeiture of treble their value or six months in prison. a reasonable reward may be given to the discoverer. anyone assaulting a magistrate or officer involved in salvage work shall be transported for seven years. officers of the revenue who collude with importers to return to them goods which have been seized for nonpayment of duties shall forfeit pounds and lose office, unless he discloses his accomplices within two months. the importer shall forfeit treble the value of such goods. armed person to the number of three assembled to assist in illegal exporting or running, landing, or carrying away prohibited or uncustomed goods and any person apprehended by any revenue officer, and anyone with his face blackened or masked who obstructs, assaults, opposes, or resists any revenue officer seizing such goods, or who shoots at or maims or wounds any revenue officer attempting to go on any ship shall suffer death as felons without benefit of clergy or serve as a commons sailor in the navy for at least one year. harborers of such offenders will be transported for seven years. the hundreds shall pay pounds for each revenue officer killed, and up to pounds for each one beaten, wounded, or maimed, and damages up to pounds for goods, unless an offender is caught and convicted in six months. there is a reward of pounds to an apprehender, and pounds for an attempt to apprehend in which one loses a limb or eye or is maimed or wounded, and pounds to his family if he is killed. an offender who brings two of his accomplices to justice will be acquitted and rewarded pounds for each such accomplice. later, an incentive was given to customs officers to have a portion of the proceeds of the sale of such goods seized by them, such as / for wrought silks and calicoes, and / for tea, coffee, foreign brandy, and rum. still later, any person could seize wrought silk, including ribbons, laces, and girdles containing it, from the importer or retailer, and the importer was to forfeit pounds, and any import assistants pounds, and retailers or concealers pounds, with one half going to the suer. also, the goods were to be publicly burnt. still later, the penalty was increased to forfeiture of pounds for all offenders, but not including wearers, and the goods were to be publicly sold for export rather than burnt. then the import of silk stockings, silk mitts, and silk gloves was prohibited for the support of the english silk industry. retailers, sellers, and concealers of such were to forfeit the goods and pounds. search warrants could be issued. in , importers, sellers, and manufacturing users of most foreign wrought silks or velvets were to forfeit the goods and pounds. the goods were sold for export with the proceeds going / to the king, and / to the seizing officer. the wearer was not liable. the burden of proof of the place of manufacture was on the person prosecuted rather than on the prosecutor. persons breaking into houses or shops to destroy any wool or silk being made or tools or racks used shall suffer death as felons, to prevent combinations of workmen. in , bounties were made available to american exporters of raw silk to great britain, whose climate was not conducive to the growing of mulberry trees on which silk worms feed. in , cotton printed, stained, or dyed that has been manufactured in great britain may be worn and used, but must have a mark woven in the warp that it was manufactured in great britain. persons importing other such cloth shall forfeit it and ten pounds per piece. persons selling such with a counterfeit stamp with an intent to defraud shall suffer death without benefit of clergy. the protective measures for english silk manufacture did not work well. any ship not more than tons hovering on the coast with customable or prohibited goods may be boarded by a customs officer, who may demand bond for treble the value of the goods. in , persons contracting with artificers and manufacturers of wool, iron, steel, brass, and other metals, clock-makers, watch- makers to go to a foreign country and there receive greater wages and advantages shall forfeit pounds and spend months in prison for the first offense, and shall forfeit a sum determined by the court and spend months in prison for the second offense. an artificer or manufacturer not returning after warning is given by the ambassador is to forfeit hereditaments, goods, and lands and to be deemed an alien. later, in , cotton and silk were included and the penalty was increased to pounds and months in gaol for the first offense, and pounds and years in prison for the second offense. also, anyone exporting tools of wool or silk manufacture was to forfeit the tools and pounds. this statute was strictly enforced. in , tools of cotton and linen manufacture were included. in , all statutes against engrossing, forestalling, and regrating were repealed because they had prevented free trade and tended to increase prices, e.g. of grain, meal, flour, cattle, and other victuals. anyone assisting a felon (except for petty larceny) to try to escape from gaol, is guilty of felony and shall be transported for seven years. anyone assisting a person who owes or is to pay pounds to try to escape from gaol is guilty of a misdemeanor. in , prison keepers were indemnified from creditors for any escapes of debtors due to conspiracy and break out with weapons and firearms rather than negligence, as had been occurring. any pirate, accessory to piracy, commander or master or other person of any ship or vessel who trades with a pirate or furnishes him with ammunition or provisions of fits out a ship to trade with pirates shall suffer death and loss of lands, goods, and chattels. seamen maimed in fighting pirates may be admitted into greenwich hospital. (this hospital received support from duties paid by vessels of the realm and of the colonies.) masters or seamen not fighting shall forfeit their wages and spend months in prison if the ship is taken. masters shall not advance to any seamen above half his wages since deserting is the chief occasion of their turning into pirates. in london penalties for crimes against property rose so that by , a child could be hanged for stealing a handkerchief worth s. from a person's body. no more than pounds of gunpowder may be kept in any building in london or westminster or suburbs thereof. later, no more than pounds of gunpowder were allowed to be kept therein for more than hours. buildings may be searched on "reasonable cause" shown to a justice of the peace. later, no more than pounds of gunpowder could be kept for more than hours near any town, or more than pounds for more than hours in any place. then no gunpowder could be conveyed by land over barrels or by water over barrels. it was customary for officers to take the oaths of allegiance and supremacy to any new monarch. when george i became king in , all civil and military officers, clergy, schoolmasters, and lawyers, solicitors, clerks, etc. living within miles of london had to take an oath of allegiance and a new oath that the person was not papist and agreed that no foreigners had jurisdiction in the realm, such as to excommunicate someone and thus declaring he could be legitimately killed. soon after, it was required that papists had to register their names and real estates. commissioners were appointed to make inquiries. if a person did not take the oaths or did not register, he was to forfeit / of his land to the king and / to a protestant who sued for such. this was in order to deter future rebellions against the king and efforts to destroy the protestant religion. papists enlisting in the army are liable to corporal punishment, but not death, as determined by a court martial. any mayor, bailiff, or other magistrate who is present at any meeting for public worship other than the church of england will lose office and is barred from any public office or employment. as late as , there was a papist conspiracy to take the tower of london and the king, and make a catholic king. this resulted in the imprisonment of the conspirators and a new statute: persons not taking the oath of allegiance and above oath that they were not papist shall register their lands and yearly rents and pay double the land tax and , pounds. after payment, they are discharged from forfeiting / of their lands' rents for one year. jews may not refuse suitable maintenance to their children who are christian to pressure them to convert back to judaism. in was the last execution for witchcraft. by statute of , witchcraft, sorcery, enchantment, and conjuration were abolished as crimes. black slaves were common for a time in london. this was a result of the voluminous triangle trade of manufactured goods from england, slaves from west africa, and sugar and tobacco from the west indies. slavery was largely abolished by judicial decision of chief justice mansfield in . if a sheriff does not answer for money collected for the exchequer, he shall forfeit treble damages to the aggrieved person, double the sum missing to the aggrieved person, pounds to the king, and pounds to the party who sues. if a sheriff take a fee for levying or collecting money due to the king (except d. for an acquittance) or take a sum for not levying money due, he is guilty of extortion, injustice, and oppression and shall forfeit treble damages and costs to the aggrieved person, and double the sum extorted to the aggrieved person. a sheriff may not levy more than d. for every s. of yearly income of any manor for up to pounds of income, and d. for value over pounds. no one may cut pine trees that are fit for masts of ship in new england without license by the queen or forfeit pounds. later, pine trees on private property were excluded. citizens of great britain may sue colonial debtors by oath before british magistrates and a debtor's colonial lands and houses and negroes may be used to satisfy his debts. anyone pretending to act under a charter and taking subscriptions in great britain or the colonies must forfeit treble damages. no hats, including beaver hats, may be exported from any colony even to another colony because this has hurt british hat manufacture. the penalty is pounds. no one in the colonies except present hatmakers who are householders and journeymen may make hats unless they serve a seven year apprenticeship. no hatmaker in the colonies may have more than two apprentices at once. whaling ships near greenland were prohibited from returning until their hulls were full. vessels built or fitted out in america may engage in whaling. pig iron from the colonies may be imported free, but there may be no mill for slitting or rolling iron and no plateing-forge or other engine to work with a tilt hammer and no furnace for making steel erected or used in the colonies or forfeit pounds. no paper bills of credit may be used in new england because such have depreciated. william blackstone lectured on law at oxford university in . as a result, the first professorship of english law was established. his lectures were published in as the "commentaries on the laws of england". they greatly influenced the american colonists and were the basis of legal education in england and america for years. they were comprehensive and covered real property, crime and punishment, court procedure, contract, corporations, and commercial law. he wrote "the great charter and charter of the forest" in . - judicial procedure - for actions under pounds in a superior court and actions under s. in an inferior court, the offender shall be served with process to appear in court rather than being arrested. for money at issue, an affidavit shall be taken. no more money may be taken for bail than the amount at controversy. this is to prevent frivolous and vexatious arrests. perjurers, forgers, those involved in barratry or suborning perjury, and pretenders practicing as attorneys or solicitors in the courts of law or equity shall be transported for seven years to the american colonies. unqualified people acting as attorneys or solicitors in the county court shall forfeit pounds. no one may practice as an attorney in the courts of king's bench, common pleas, or exchequer until he has been examined by a judge of such court on his fitness and qualifications and has taken the oath to honestly demean himself and practice according to his best knowledge and ability. the same applies to a solicitor in the equity courts. this shall not exclude persons who have been bound to an attorney or solicitor for four years. attorneys and solicitors, with consent of an attorney of another court, may participate in proceedings of such other court. no attorney may have more than two clerks bound to him at one time. attorneys may be admitted as solicitors and vice-versa. there were twelve common law justices of the court of the king's bench, court of common pleas, and court of the exchequer. the chief justices of all of these courts were paid partly from fees paid to the court. the other justices of these courts were paid completely by salary, which in was well over pounds per year. these justices were to continue in office even after a king died and could be removed only for good cause upon the address of both houses of parliament. the officers of these courts were attorneys. there was one justice at doctors' commons. the two chancery justices (since edward i) were the lord chancellor and the master of the rolls. the salary of the eleven masters of the court of chancery in was pounds per year. the officers of this court were solicitors. appeals from the exchequer could be made to a court of the king's bench and common pleas combined. appeals from common pleas could be made to the king's bench. decisions of the king's bench and other common law courts could be appealed to parliament. the common law courts rode circuit twice a year in five circuits and once a year in the north circuit. so an accused person could spend up to a year in gaol waiting for trial. few prisoners were granted bail. in each common law court, the law justices in banc would hear demurrers [contentions that the other party was wrong in the law]. no one with an interest in a suit, including the plaintiff and the defendant, could give evidence. there was no power to amend pleadings, so misspelling of the defendant's name, for instance, could result in dismissal of the suit. in , the pleadings and indictments ceased to be in latin. compurgation still existed for debt and detinue. writs of error at variance from the original record or otherwise defective may be amended to correct the defect by the court where such writ is returnable. no judgment is to be reversed for any defect in any bill or writ, excepting an appeal of felony or murder, or misdemeanor. this is to prevent delays of justice. justices of the peace may correct defects of form on appeals to them. plaintiffs neglecting to go to trial after an issue has been joined may be nonsuited. the qualification for jury service is having land with an income over rents of at least pounds, with leases for years or more, or years, or any term determinable on one or more lives. being a freeholder is not necessary. in london, the qualification is being a householder and having lands to the value of pounds. no sheriff may excuse a qualified person from jury service for money or other reward. selection of jurors for each case is to be done by some indifferent person pulling their names from a box. later, persons refusing jury service could be fined. poor persons may be paid up to d. to give evidence against felons. pirates may not be tried again for the same crime or for a certain crime and high treason. when the marine force was raised, the marines were also given protection from double jeopardy. in chancery, a plaintiff filed a complaint and interrogatories prepared by counsel. only in chancery could there be discovery. the interrogatories were addressed by court officials to witnesses without the presence of the parties or their lawyers. officials wrote down the answers in their own terms. so there was no cross- examination possible. most decrees took many years to be made. the ordinary administrative court of first instance is that of one or two justices of the peace who issue orders in matters of public safety, public order, public morals, health, the poor, highways, water, fields, forests, fisheries, trade, building, fire, begging, and vagrancy. he examined suspicious persons and issued warrants for the removal of persons likely to become a public charge. the justice of the peace also regulates wages, servants, apprentices, and day laborers. in his judicial capacity, he tried all crimes and felonies except treason, though in practice death penalty cases were transferred to the assize justices. the justices of the peace of a hundred hold special sessions such as for appointment of parochial officers, highway disputes, and the grant of wine, beer, and spirit licenses. the appointment of overseers of the poor, authorization of parish rates, and reading of the riot act to mobs to disperse them, required more than one of the justices of the peace of the hundred to participate. all the justices of the peace of the county met four times a year at quarter sessions to hear appeals from penal sentences, to determine the county rate of tax, to appoint treasurers of the county and governors of the county prison and house of correction, to issue regulations on prices of provisions and on wages, to settle fees of the county officials, to grant licenses for powder-mills and other industries, to hear nuisance complaints such as those against parishes for failing to keep their roads in repair, to make regulations for the holding of markets, to hear complaints concerning local government, and to register dissenting chapels. in more and more matters specified by statute, the quarter sessions heard appeals from the orders of the individual justices of the peace instead of common law courts hearing them by writ of certiorari. the writ of certiorari allows administrative decisions to be reviewed by the common law courts for compliance with law, competency of the court, and interpretation of the administrative law. the writ of habeas corpus appealed administrative decisions to imprison not only after arrest for criminal proceedings, but any coercive measure for enforcing an administrative order. the writ of mandamus was available for enforcing the injunctions of administrative law against towns, corporations, and all other authorities and private persons, where the ordinary punishments were insufficient. justices of the peace in rural areas were squires and in towns aldermen. in , justices of the peace were authorized to decide issues between masters and mistresses and their employees who were hired for at least one year. if a servant misbehaved, they could authorize reduction of wage, discharge, and hard labor at a house of correction up to one month. if a servant was not paid, he could authorize payment of wages up to pounds for an agricultural servant, and up to pounds for an artificer, handicraftsman, miner, collier, keelman, pitman, glassman, potter, or ordinary laborer. later, tinners and miners were added to the last category. in , employees of less than a year were included. in , justices of the peace were authorized to administer any oath for the purpose of levying penalties. to be a justice of the peace, one must have income of pounds a year from a freehold, copyhold, or customary estate that is for life or for a term of at least years, or be entitled to a reversion of lands leased for or or lives, or for any term of years determinable on the death of or or lives. excepted were peers, justices, and heads of colleges or vice chancellors at the universities. the justices of the peace were selected by the superintending sheriffs and lords lieutenant, the latter of whom were usually peer with a ministers' office or a high court official. no attorney or solicitor or proctor could be a justice of the peace unless the locality had justices of the peace by charter. a request for certiorari for removal of convictions, judgments, orders made by justices of the peace must be made within six months and after notice to the justice of the peace who may argue cause against granting certiorari. in the common law courts, trespass in ejectment served the purposes of most of the actions involving land. assumpsit covered the whole province of debt, and much more. trover more than covered the old province of detinue. trespass still served for all cases in which the defendant had been guilty of directly applying force to the plaintiff's body, goods or chattels. trespass on the case covered miscellaneous torts. replevin was still used. covenant remained in use for the enforcement of promises under seal. account gradually came under the equity jurisdiction of chancery. common law writs of dower are largely superseded by the relief given to the doweress in the courts of equity, where new and valuable rights were given to her and to her personal representatives against the heir and his representatives. the actions of indebitatus assumpsit is being extended to actions upon quasi-contract, in which the element of contract is not required e.g. quantum meruit, where a contract is implied from the facts of the case. mercantile law was developed by the common law courts, especially the king's bench. the king was to appoint the marshal of the king's bench. the marshal was to select his inferior officers to hold office as long as they "behave themselves well within". these offices had been sold by james i to a certain person, his heirs, and assigns. the marshal was to keep the prison of this court in good repair from his fees and profits of office. the office of sheriff was now an accessory department of the common law courts for summons, executions, summoning the jury, and carrying out the sentence of the law. summons for excise offenses may be left at a person's abode, workhouse, or shop as well as on his person. the coroner's office now investigated unusual deaths with a jury from the neighborhood elected by county freeholders. the last beheading was of a scottish lord in ; he had been involved in an attempt to restore the stuarts to the throne. so many people came that some overcrowded bleachers fell down and crushed about spectators. henceforth, every sentence of death was by hanging, even for peers. in , the process of pressing a man to death, if he refused to plead to an indictment was abolished. in , persons accused or indicted, in great britain or america, of felony or piracy who stand mute shall be convicted of such charge. property of a felon was still forfeited to the crown. from on were established special procedures for speedy decisions in local courts in some areas for debts or damages under s. and imprisonment for such was limited for up to three months. otherwise, sentences were longer, and debts grew during the time in prison. when prisons were overcrowded, parliament let the inmates out if they gave up their possessions. they could go to georgia. in , the homes of john wilkes and others were searched for a seditious and treasonous published paper and all related papers because they had been rumored to have some relationship to the conception, writing, publication, or distribution of the paper. wilkes had such papers and was convicted of libel. he countersued for damages due to criminal trespass. the court held that general search warrants were subversive of the liberty of the subject of the search in violation of the british constitution, declared the statute void, and found for wilkes. the court of common pleas agreed on appeal and put the burden of proof on the persons searching to justify the search warrant. his decision gave support to william pitt's assertion that "every man's home is his castle". there were felons' prisons and debtors' prisons. sometimes they were one and the same. there was much fighting among inmates. the inmates slept on hay if lucky. there were no washing facilities and little light. counties or friends paid for their bread. they were also sold beer, which made them drunk and riotous. the sale of beer was a recognized and legitimate source of profit to the keeper. this was remedied by statute of that no sheriff or other officer may take an arrested person to a tavern or other public house or charge him for any wine, beer, ale, victuals, tobacco or other liquor without his consent and shall allow prisoners to be brought beer, ale, victuals, bedding, and linen as the prisoner sees fit. sheriffs often kept people imprisoned unless and until they paid all their fees due to the sheriff. in was founded the society for the discharge and relief of persons imprisoned for small debts for those inmates unfortunate instead of fraudulent or extravagant. legacies were often made to debtors. there was much gaol distemper fever with fatal consequences. when john howard, a grocer who had inherited wealth, but poor health, became a sheriff, he visited many gaols. when he saw the squalid conditions there, he advocated hygenic practices. in , justices of the peace were authorized to order walls and ceilings of gaols to be scraped and washed, ventilators for supplies of fresh air, a separate room for the sick prisoners, commodious bathing tubs, provision of clothes for prisoners, keeping of prisoners not below the ground, and apothecaries at a stated salary to attend and to report the state of health of prisoners. in , clergymen were employed in gaols to alleviate the distress of prisoners and to contribute to morality and religion. also, no longer may any fees be taken by gaol keepers or sheriffs because persons not indicted or found not guilty have been kept in prison pending payment of such fees. instead, the counties shall pay to gaol keepers up to s. d. per prisoner so discharged. there was much gaol distemper fever with fatal consequences, so in , justices of the peace were authorized to order walls and ceilings of gaols to be scraped and washed, ventilators for supplies of fresh air, a separate room for the sick prisoners, commodious bathing tubs, provision of clothes for prisoners, keeping of prisoners not below the ground, and apothecaries at a stated salary to attend and to report the state of health of prisoners. colonials acts which infringed upon the english common or statutory law, or were against the interests of other american colonies were submitted to the privy council, which allowed or disallowed them. appeals from the colonial courts came to the privy council. judges in the colonies were appointed by royal governors and paid by colonial legislatures. they served at the pleasure of the king. colonial courts included superior courts of judicature, courts of assize, general gaol delivery, general sessions of the peace, inferior court of common pleas, and commissions of oyer and terminer. there were also justices of the peace, marshals, provosts, and attorney generals. there were few cases of vagrancy, theft, or homicide. this may have been because the people were few and dependent on each other, and economic opportunities were great. in john peter zenger, printer of the new york weekly journal, was tried for seditious libel for its criticisms and satire of the new york governor, who exceeded his powers, such as by demanding that bills from the assembly be presented to him before the council, and by arbitrarily displacing judges. seditious libel was defined as "false, scandalous, and seditious" writings. traditionally, this word "false" could mean "disloyal". the prosecution argued that truth of such criticism was an aggravation of the crime because it was more provoking of sedition, as found by star chamber cases. the defense argued for a right publically to remonstrate abuses of power by public officials to guard against violence and destruction of liberties by men in authority. the american jurors, who were supposed to be familiar with the facts pertinent to the case, knew the truth of the paper's criticisms. they agreed with the defense that the word "false" in the definition: "false, scandalous, and seditious" writings, to mean "untrue" instead of "disloyal". so truth became a defense to seditious libel. pamphletts describing the zenger trial and acquittal were published and republished in london and the colonies. benefit of clergy was available in the american colonies to all who could read and write. it could be used in trials for manslaughter. - - - chapter : epilogue - - - in the time period after , there developed the fuel-saving kitchen range with closed-in-fire between oven and hot-water tank, hot and cold running water, the use of flushing toilets, edmund cartwright's power weaving machine, samuel crompton's mule for spinning many threads by waterpower in , james watt's steam engine with steam pushing the piston both ways as well as rotary motion and used in many kinds of factories instead of water power, henry bessimer's inexpensive low carbon steel in , iron and steel bridges and ships, drilling and use of oil and natural gas as fuel, adam smith's "wealth of nations" opining that competition of the market could distribute resources best, thomas paine's "rights of man", free trade, democracy, popular elections, secret ballots, universal suffrage, civil service without patronage, mary wollstonecraft's "vindication of the rights of women", university education for women (university of london), policemen (in london in ), clipper ships (the final development of sailing before steam), percussion caps on guns, periodic chart of chemical elements, college degrees in biology, chemistry, and physics, geology, maxwell's theory of electromagnetism, albert einstein's theory of relativity, quantum theory, laws of thermodynamics that the energy of the universe is a constant amount but entropy always increases, computers, decoding of the dna sequence, charles darwin's evolution, joseph lister's disinfectant in , edward jenner's smallpox vaccine, louis pasteur's germ theory of disease, anesthetics, aspirin, insulin, penicillin, antibiotics, surgery to replace body parts, tampon, contraceptive pill, discovery of planet uranus by observation and thence of neptune and pluto by calculation from discrepancies in uranus' orbit, hubble space telescope, big bang theory, buses (horse-drawn from with passengers), subways, trains ( ), public railway ( , goods drawn by engine and passengers by horse), steam ships, steel ships, aircraft carriers, submarines, tanks, friction matches, chewing gum, pajamas, gas street lamps, traffic lights and signs, ambulances, concrete and asphalt highways, census in , children's playgrounds, knee length dresses, chemical artificial fertilizers, substitution of steel for iron, trade unions, digital watches, wrist watches, compact disks, intelligence tests, personality tests, wool-combing machine, statistical analysis, bell curves, standard deviations, united nations, carpet sweeper, vacuum cleaner, central heating, apartment high rises, business skyscrapers, electricity, electric lights, sewing machines, water closets in richer houses (after ), cholera epidemics, sewers for waste disposal, industrial revolution factories, labor strikes, cars, tractors, charles dickens, ice boxes and refrigerators, telephones, central heating with radiators, hot water heaters by gas, gas ovens, humidifiers, canned food, four- pronged forks, suits of matching jackets and trousers, zippers, velcro, wall-to-wall carpeting, popular elections, airplanes, photography, record players, frozen food; cast iron kitchen range for cooking, baking, and boiling; radio, television, plastics, submarines, economics, multinational corporations, weather forecasting, braille, airplanes, space ship to moon, factory assembly lines, washing machines, dishwashers, sewing machine, microwave ovens, copier machines, dna evidence, nuclear bomb and nuclear energy, guided missiles, quartz watches, bicycles, artificial insemination and invitro fertilization, investment advice, retirement planning, amusement parks, catalogue buying, labor contracts, childrens' summer camps, teenage culture, synthetic materials, typewriters, cardboard boxes, marketing studies, factory assembly line, gene-mapping, animal cloning, internet, hiking and camping trips, world travel vacations, telegraph, word processing, gas, oil, research, credit cards, dental floss, camcorders, mass production, nursing homes, cameras, copy machines, wheelchairs, hospital operations, artificial limbs, organ transplants, pharmacies, public circulating libraries, children's playgrounds, cosmetic surgery, physical exercising equipment, vitamin pills, sports clubs, condominiums, molecules, chromosomes, observatories, radar, sonar, nutrition, supermarkets, disability insurance, liability insurance, chemical fertilizers, ddt, record players, video tape recorders, retirement homes, movies;, planned obsolescence, box-spring mattresses, brain scans, x-rays, organized professional sports, dry cleaners, foreign embassies, psychiatry, veterinarians, drug abuse, wage garnishment, tractors, lawnmowers, breeding zoos, world wars, nuclear deterrence, fingerprinting, forensic evidence, toxic waste, acid rain, elevators, picture windows, sewing machines, automation, cybernetics, pizza delivery, health insurance, walt disney, satellite transmission, radiocarbon dating, ice cream, air conditioning, ball point pens, school blackboards, bullets in s, electronic mail, first law of thermodynamics: the conservation of energy, the second law of thermodynamics: potential energy turns into high-temperature thermal energy and finally into low-temperature thermal energy, but these processes are not reversible. the science of philology, on the meaning and history of words began the concept of a natural development of languages which conflicted with the theological view that god had created all the different languages when he punished man for trying to build an edifice to heaven by destroying the tower of babel and dispersing the people into all parts of the world with different languages derived from the original: hebrew, so that they could not communicate with each other. the science of geology developed the concept of tremendous changes in the earth's surface which altered horizontal layers of deposits, in which there were fossils, which challenged the biblical notion of a world and all its animals created in a week. in , lord henry cavendish proved that the sole result of mixing hydrogen with oxygen was water, thus disproving the theory of the four elements of air, earth, fire, and water. in the united states, there was no king, a separation of the executive, the legislative, and the judicial; a separation of church and state, and no aristocratic titles. in this time period the development of law includes abandonment of common law crimes such as seditious libel in the united states, negligence and duty of due care in the united states replacing the english strict liability for torts, substitution of the caveat emptor doctrine for the english sound price doctrine in contract law in the united states, truth as a defense to charge of libel in the united states, repeal in england of seven year requirement for apprentices in , married women's property acts beginning : ( . right to sue and be sued, . right to her own earnings, . right to own real and personal property, . right to make contracts . right to stay in family homestead with children, right to custody of children if husband abandons her), divorce in england by courts in , in united states extension of grounds for divorce beyond adultery, bigamy, and desertion to cruel treatment, habitual drunkenness, and conviction of a felony and finally no-fault divorce, decline of father's paramount claim to the custody of his minor children in the absence of a strong showing of misconduct or unfitness, tender years doctrine (in england in mother to have custody of child under seven and to have access over seven) and then best interests of child doctrine in custody disputes, legal obligation for parents to support their minor children, adoption about the s; in england allowance of women attorneys in , women to vote in , adultery by a husband to be adjudged as culpable as adultery by a wife in , the rights of a mother over her child to be equal to those of a father in , and the rights of a woman to property to be the same as those of a man in ; child labor laws, full religious freedom with admission of nonconformists to the two universities in england in , probable cause instead of suspicion for search and seizure, mandamus, rule against perpetuities, mandatory secondary education, kidnapping, false impersonation, liens, obscenity, estoppel for detrimental reliance on a promise, unjust enrichment, pensions, trademarks and unfair competition, antitrust, privacy, freedom of thought, freedom of speech, freedom of the press, bankruptcy, civil rights, union organizing laws, laws on discrimination due to race, sex, ethnic or national origin, disability, age, and sexual preference; sexual harassment and stalking laws, product liability, international law, environmental laws protecting air and water quality, workers compensation, unemployment compensation, controlled substances, intellectual property law; and contingency fees only in the united states, in england, there was an end of trial by combat in , of compurgation in , and of benefit of clergy. in , there were offences in england with the death penalty, including stealing from a dwelling house to the value of s., stealing from a shop to a value of s., and stealing anything privily from the person. the penalty for treason was still drawing and quartering. it was a privilege of the peerage to be immune from any punishment upon a first conviction of felony. as of , church courts could no longer decide cases of perjury; as of , no cases of defamation, but only church matters. hearsay rules and exceptions were developed in the s. in , jurors were to have no knowledge except the evidence accepted at court. in , counsel for a person indicted for high treason could examine and cross- examine witnesses. in , a defendant could see the written record of evidence against him. in , the accused was allowed to give evidence. pleaders do not have to specify the form of action relied on, but rather give facts which give rise to a cause of action. judicial procedure includes grand juries, which hear evidence, court transcript by court stenographers, discovery, depositions, and presumption of innocence (after salem witch trials in the united states). the united states changed judicial procedure in several respects: parties were allowed to testify, writ pleading was abandoned, and prisons were used for reforming prisoners. debtors prisons were abolished. also, the law was seen not as divinely inspired eternal law to be found by judges, but law made by man to suit the times. state judges served for life during good behavior; they could be removed by the procedure of impeachment. in some states, judges were elected. there were privileges on testimony such as attorney-client, priest-confessor, and husband- wife. - - - appendix: sovereigns of england - - - accession - name - alfred the great edward the elder son of alfred aethelstan son of edward the elder edmund son of edward the elder eadred son of edward the elder eadwig son of edmund edgar son of edmund edward the martyr son of edgar aethelred the unready son of edgar edmund ironside son of aethelred the unready canute harold i harefoot son of canute hardicanute son of canute edward the confessor son of aethelred the unready harold ii william i, the conquerer william ii son of william i henry i (and matilda) son of william i stephen henry ii (and eleanor) grandson of henry i richard i, the lion-hearted son of henry ii john son of henry ii henry iii son of john edward i (and eleanor) son of henry iii edward ii son of edward i edward iii son of edward ii richard ii grandson of edward iii henry iv henry v son of henry iv henry vi son of henry v edward iv edward v son of edward iv richard iii henry vii (and elizabeth) henry viii son of henry vii edward vi son of henry viii mary daughter of henry viii elizabeth i daughter of henry viii james i charles i son of james i oliver cromwell charles ii son of charles i james ii son of charles i william and mary william iii anne granddaughter of james ii george i george ii son of george i george iii son of george ii - - - bibliography - - - . ancient laws and institutes of england, printed by command of his late majesty king william iv under the direction of the commissioners of the public records of the kingdom, vol ; . . the laws of the kings of england from edmund to henry i, a.j. robertson, . . the statutes of the realm . statutes at large . a treatise of the lawes of the forest, john manwood, . history of english law; william holdsworth . history of english law, pollack and maitland, . anglo-saxon charters, a. j. robertson, . franchises of the city of london, george norton, . borough customs vol. , selden society, . royal writs in england from the conquest to glanvill, selden society, . lawsuits in time of wm i, selden society . treatise on the laws and customs of the realm of england, ranulph d. glanvill, . calendar of wills, court of husting, london; ed. reginald r. sharpe . calendar of early mayor's court rolls of the city of london, ad - , ed. a. h. thomas . legislation of edward i, t.f.t. plunkett, . english historical documents, ed. david douglas . bracton on the laws and customs of england, henry of bratton, . chaucer's world, edith richert, . john, king of england, john t. appleby, . a collection of eighteen rare and curious historical tracts and pamphletts, edinburgh, priv. print. . doctor and student, christopher st. germain, . readings in western civilization, george kuoles, . social england, ed.: h.d. traill, st. john's college, oxford; vol. and , . . augustine of canterbury, margaret deanesly, . the venerable bede, ecclesiastical history of the english nation . political history of england; t. hodgkin . alfred the great, helm, . domesday, a search for the roots of england, m. wood, . the english church - ; f. barlow, . life on the english manor; h.s. bennet; . the english medieval town; colin platt; . london weavers' company, francis consitt, . the gild merchant, charles gross, . life and times of roger bacon . oxford book of oxford, jan morris, . a history of oxford university, vivian green, . lives of the lord chancellors, campbell, . gilds and companies of london, george unwin, . a history of technology, charles singer, - . edward i, michael prestwich, . franchises of the city of london, george norton, . the works of alfred . salisbury plain, r. whitlock, . william the conqueror, f.m. stenton, . life of william the conqueror, t. roscoe, . elizabeth i, anne somerset, . queen elizabeth, katherine anthony, . industry in england, h.deb. gibbons, . henry ii, w. l. warren, . edward i, l.f. salzman, . the yorkist age, paul kendall, . edward the confessor, frank barlow, . the livery companies of the city of london, w. carew hazlitt, . parliamentary representation of the city of coventry, thomas whitley, . the government of england under henry i, judith green, . lives of the queens of england, agnes strickland, . the oldest version of the customs of newcastle, c. johnson, . charter of henry ii to the burgesses of newcastle, a. m. oliver, . the charters and letters patent granted by the kings and queens of england to bristol, samuel seyer, . magna carta, legend and legacy, william swindler, . chronicles and memorials of great britain and ireland during the middle ages: letters and papers of richard iii and henry vii . sons of the conqueror, g. slocombe, . the spirit of the classical canon law, richard helmholz, . open fields, charles orwin, . the medieval foundation of england, arthur bryant, . from alfred to henry iii, - , christopher brooks, . the anglo-norman nobility in the reign of henry i: the second generation, charlotte newman, . the birth of britain vol. , winston s. churchill, . medieval london, gordon hoime, . a history of london, stephen inwood, . tudor england, john guy, . reign of henry vii, r. storey, . elizabethan life in town and country, m. st. claire byrne, . the elizabethan world, edited by norman kotner, . the evolution of modern medicine, william osler, . shakespeare's england, oxford university press, . the lion and the throne, catherine bowen, . johnson's england, ed. a.s. turberville, . education in renaissance england, kenneth charlton, . the scholastic curriculum of early seventeenth-century cambridge, william costello, . . english people on the eve of colonization - , wallace notestein, . sir walter ralegh, willard wallace, . sir walter ralegh, robert lacey, . constitutional documents of the reign of james i, j.r. tanner, . history of the english people, volumes iii and iv, green . hume's history of england, volumes v and vi, david hume . english society - , keith wrightson, . the century of revolution - , christopher hill, . charles i and the puritan upheaval, allen french, . charles i, christopher hibbert, . constitutional documents of the puritan revolution - , samuel gardiner, . life and work of the people of england in the th century, dorothy hartley et al, . home life under the stuarts, elizabeth godfrey, . cromwell the lord protector, antonia fraser, . the greatness of oliver cromwell, maurice ashley, . acts and ordinances of the interregnum - , c.h.firth & r.s.rait, . history of the english people, john r. green, . . a social and industrial history of england, f.w. tickner, . a history of everyday things in england, marjorie and chb quennell, . the english, norman f. cantor, . a concise economic history of britain, john clapham, . world book encyclopedia . encyclopedia britannica . history of the english constitution, rudolph gneist, . the life of the law, alfred knight, . norton anthology of english literature, ed. m.h.abrams, . the bank of england, john clapham, . the honorable company, a history of the east india company, john keay, . a history of british india, w.w. hunter, . the bank of england, john clapham, . early speculative bubbles and increase in the supply of money, m.a. thesis, douglas e. french, . royal charles, antonia fraser, . charles ii, ronald hutton, . the life and times of charles ii, christopher falkus, . life in a noble household - , gladys thomson, . the weaker vessel, antonia fraser, . a constitutional and legal history of medieval england, bryce lyon, . the laws respecting women, j. johnson, . mediaeval england, mary bateson, . elizabeth: the struggle for the throne, david starkey, . a social history of england, asa briggs, . the year , robert lacey, . a history of chemistry, charles-albert reichen, . john locke, economist and social scientist, karen vaughn, . becoming visible, women in european history, ed. bridenthal & koonz, . wonder book of the world's progress; inventions and customs, henry williams, . industrial revolution in the eighteenth century, paul mantoux, . eighteenth century england, dorothy marshall, . georgian england, a.e. richardson, . the pageant of georgian england, elizabeth burton, . the georgian gentleman, michael brander, . england in the eighteenth century, j.h. plumb, . london life in the eighteenth century, m. dorothy george, . law and jurisprudence in american history, stephen presser & jamil zainaldin, . england in the age of hogarth, derek jarrett, . the first four georges, j.h. plumb, . the review of american colonial legislation by the king in council, elmer russell, . select pleas of the crown, f.w. maitland, . select pleas in manorial and other seignorial courts, f.w. maitland, . the forms of action at common law, f.w. maitland, . equity, f.w. maitland . the story of the declaration of independence, ira g. corn, jr., . internet medieval sourcebook . out of the fiery furnace video, robert raymond . a history of chemistry, charles reichen, . seven ideas that shook the universe, nathan spielberg, . a history of the warfare of science with theology in christendom, andrew white, . american political and social history, harold faulkner, . essays in science, albert einstein, . the character of physical law, richard feynman, . dictionary of national biography, george smith, . elizabeth i: collected works, ed. leah marcus et al, . the crime of galileo, giorgio de santillana, . from copernicus to einstein, hans reichenbach, . the horizon book of the elizabethan world, ed. richard ketchum, . tower of london, christopher hibbert, . tudor royal proclamations, ed. p.l. hughes & j.f. larkin, . selected historical essays of f.w.maitland, ed. helen cam, . lloyd's of london, raymond flower & michael jones, . weather, philip thompson etc., . constitutional history of england, william stubbs, . hillforts of england and wales, james dyer, . the last two million years, reader's digest association, . london: the civic spirit, robert goldston, . domestic life in england, norah lofts, . descartes, tom sorell, . life in the english country house, mark girouard, . extraordinary origins of everyday things, charles panati, . god's peace and king's peace: the laws of edward the confessor, bruce o'brien, . the bill of rights, irving brant, . issac newton, adventurer in thought; a. rupert hall, . the life of issac newton, richard s. westfall, . a history of the circle, ernest zebrowski, . pelican history of england: . roman britain, i.a. richmond, . the beginnings of english society, dorothy whitelock, . english society in the early middle ages, doris stenton, . england in the late middle ages, a.r. myers, . tudor england, s.t. bindoff, . england in the seventeenth century, maurice ashley, the end index abbey; abbot, abbess; abduction; accessory; account; administrator; admiralty; adultery; adverse possession; adulterated; advowson; aethelbert; aethelred; affidavit; agreement; agriculture; augustine. st.; aids; alderman; ale; alehouses; alfred; alienate; aliens; allegiance; alms; amerce; america; anabaptist; ancient; anglo-saxons; anglo-saxon chronicles; annulment; apothecaries; apparel laws; appeal; appellate; apprentices; appurtance; archbishop; architect; aristotle; arkwright, richard; arraign; arson; arthur; articles of religion; artificer; artisan; assault; assay; assign; assize; assizes; assumpsit; astrology; at pleasure; atheism; attainder; attaint; attorneys; babies; bachelor; bachelor of arts; back-berend; bacon, francis; bacon, roger; bacteriology; bail; bailiff; baker; ballads; bank of england; bankruptcy; baptist; bar; barber; barber-surgeon; bargain and sale; barons; baron court; barristers; bastard; bath; battery; beadle; beating; becket; beer; beggar; benefit of clergy; benevolence; beowulf; bequeath, bequest; bible; bigamy; bill; bill of attainder; bill of exchange; bill of rights; billet; birmingham; bishops; black death; blackstone, william; blinding; blodwite; blood-letting; book of common prayer; bordars; borough; boston; bot; boyle, robert; bracton, henry de; brass; brawling; breach; breach of the peace; bread; brewster; bribery; brick; bridge; bristol; brokers; bullock, case of; burgess; burglary; burh; burial; burning; butcher; butler; calais; calvin; cambridge university; canals; cannon; capitalism; carbon dioxide; carpenter; carriages; carucage; carver; castle; castle-guard; cathedral; catholics; cattle; cavaliers; cecil, william; censorship; ceorl; certiorari; challenge; champerty; chancellor; chancery; chancery court; charter; chattel; chaucer, geoffrey; chemistry; chevage; chief justice; chief justiciars; child; child abuse; children; childwyte; christian; chivalry; christmas; church; church of england; church sanctuary; cicero; circuit; citizen; city; civil; civil courts; civil war; claim; clans; class; clergy; clerics; cloth-maker; coaches; coal; coffee houses; coin; coke, edward; college of physicians and surgeons; colonies; commission; common land; common law; commons, house of; commonwealth; compurgation; compurgator; confession; congregationalists; conqueror; consideration; constable; constitution; contract; conventile; conveyance; conviction; cooper; copernicus; copper; copyhold; copyrights; cordwainer; coronation charter; coroner; corporation; corruption of the blood; council; counterfeit; county; county courts; courtesy; court of common pleas; court of high commission; court of king's bench; courtesy; court martial; covenant; coverture; coventry; craft; craft guild; cranmer, thomas; creditor; crime; criminal; cromwell, oliver; cromwell, thomas; crown; cupbearer; curfew; currier; custody; customary tenant; customs; damages; danegeld; danes; darrein presentment; daughter; death; death penalty; debt, debtors; deceased; decree; deed; deer; defamation; defendant; demesne; denizen; deodand; descendant; descartes, renee; desertion; detinue; devise; dispensary; disseisin; dissenter; distraint; distress; divorce; doctorate; dog; doomsday book; doublet; dower; dowery; drake, francis; drover; drunkenness; duel; during good behavior; duties; dwelling; dyers; earl; east india company; easter; ecclesiastic; edith; education; eleanor, wife of edward i; eleanor, wife of henry ii; election; electricity; elizabeth, wife of henry vii; embroiderer; enclosure; english; engrose; episcopal church; equity; equity court; erasmus; escape from gaol; escheat, escheator; escuage; esquire; established church; estate; estate administration; estate tail; exchequer; excommunication; excise tax; executor; export; extent; eyre; factory; fair; father; fealty; fee; fee simple; fee tail; felony; feme covert; feme sole; feoff; feudal; feudal tenures; fihtwite; fine; fire; fire-fighters; fishermen, fishmonger; flint; flogging; flying shuttle; folkmoot; food riots; footmen; forced loans; forced marriage; forestall; forest charter; forestall; forests; forfeit; forgery; forms of action; fornication; fortifications; foster-lean; france; frank-almoin; franklin, benjamin; frankpledge; fraternity; fraud; freedom of speech; freehold, freeholder; freeman; freemason; freewoman; friar; frith guild; fuller; fustian; fyrd; fyrdwite; gage; galilei, galileo; gambling; games; gaols; gaol distemper; gawaine; gentleman; gentry; geology; georgia; german, christopher st., gift; gilbert, william; guildhall; guilds; gin; glanvill; glass; glorious revolution; gloves; god; godfather; gold; goldsmiths; good parliament; goods; government; grain; grammar schools; grand assize; grand jury; grand tour; grants; grave; gravitation; greek; gresham, thomas; grithbrice; guardian, guardianship; guenevere; hair; hall; halley, edmond; hamsocne; hand-habbende; harboring; harrington, james; harvard college; health; heir; heresy; heriot; hidage; hide; high commission court; hilda; hillforts; hobbes, thomas; holidays, holydays; homage; homicide; hooke, robert; horse; horse racing; hospitals; house-breaking; house-holder; house of commons; house of lords; houses; houses of correction; hue and cry; humanism, humors; hundred rolls; huygens, christian; hundred; hundred courts; hunt; husband; hustings court; hut; illegitimacy; illness; illuminators; impeach; import; imprisonment; incest; income tax; independents; indenture; indictment; industry; infangthef; inflation; inheritance; innkeeper; inns of court; inoculation; inquest; insurance; interest; interrogatory; intestate; iron; itinerant; jail; jesus; jews; joan of arc; joint tenants; joint-stock companies; jointure; jones, indigo; journeyman; judge; jurisdiction; jurors; jury; justice; justices in eyre; justices of assize; justices of the peace; justiciar; kent county; keplar, johannes; kill; kin, kindred; king; king alfred the great; king charles i; king charles ii; king edward i; king edward the confessor; king george iii; king henry i; king henry ii; king henry vii; king henry viii; king james i; king james ii; king john; king richard the lion-hearted; king william and mary; king william i, the conqueror; king's peace; knight; knight's fee; knights' guild; knitting; laborer; ladies; land; landlord; land-owner; larceny; lastage; latin; law merchant; lawsuit; lawyer; laxton; lay; leap year; lease; leather; leet court; legacy; legislation; legitimacy; leicester; letters; libel; liberi quadripartitus; library; license; life; life-estate; lighthouse; limb; linen; lion of justice; literacy; literature; littleton, thomas; livery; lloyds; locke, john; london; long parliament; longitude; lord; lords, house of; loriner; lottery; loyalty; machine; magistrates; magna carta; magnate; maiden; mail; majic; malicious prosecution; maintenance; manchester; manor; manor courts; manufacturing; manumission; marco polo; market; marriage; marriage agreement; marriage portion; marshall; marquise; massachusetts; master of arts; masters; matilda; mayflower; mayor; maypole; mead; measures; meat; medicine; melee; member; merchandise; merchant; merchant adventurers; merchant guilds; merchet; merciless parliament; mercy; merton; mesne; methodists; microscope; middlesex; midwives; military service; militia; miller; minister; minor; minstrels; miskenning; moat; model parliament; monarchy; monasteries; money; moneyer; monks; monopoly; moot; more, thomas; morgen-gift; morning gift; mort d'ancestor; mortgage; mortmain; mother; murder; mutilation; napier, john; navy; newcastle- on-tyne; new england; new model army; newspapers; newton, issac; new world; nobility; noblemen, nobles; nonconformists; normans; novel disseisin; nuisance; nun; oakham, william; oaths; offender; oil; one hundred year war; open field system; ordeal; ordinance; orphans; outlaw; oxford university; oxygen; papists; parent; parishes; parliament; parliament of saints; partition; party; pascal, blaise; passport; patents; pauper; pawn; peasant's revolt; peers; peine forte et dure; penalty; penitentiary; penn, william; pennsylvania; penny; per stirpes; perjury; personal injury; personal property; petit serjeanty; petition; petition of right; physicians; piers plowman; pigherds; pilgrim; pillory; pipe rolls; piracy; pirate; plague; plaintiff; plato; plays; pleading; pleas; police; pontage; poor; pope; popery; population; port; portreeve; portsoken ward; posse; possess; postal system; post mortem; pottery; praecipe in capite; pressing; presbyterians; prescription; presentment; priest; printing; prison; privy council; privy seal; probable cause; probate; proclamation; promise under seal; promissory note; property; prosecutor; prostitutes; protectorate; protestants; puritans; purveyance; putting out system; quakers; quaranteen, quarter sessions; queen; queen elizabeth i; queen mary; queen's bench; quo warranto; rack; ralegh, walter; rape; ray, john; real action; recognition; reeve; reformation; regrate; release; relief; religion; remainder; renaissance; rent; replevin; residence; restoration; reversion; revolt; reward; rights; riot; riot act; roads; robbery; robin hood; roman law; root and branch petition; roundheads; royal court; royal navy; royal society; royalists; rump parliament; russia; sacrament; sacrifice; sailor; sake and soke; sale; salt; saltworks; sanctuary; sandwich; saxon; scaetts; scavage; scholar; school; science; scolds; scot; scrofula; scutage; seal; seamen; searchers; search warrant; sedition, seditious; seisin; self- defense; self-help; separatists; serf; serjeanty; servant; service; servitude; settlement; sewer; shakespeare, william; shaving; sheep; shelley's case; sheriff; sheriff's turn; shillings; ships; shipwreck; shire; shire courts; shire-gemot; shoemaker; short parliament; shrine; sickness; silver; slade's case; slander; slave; slingshot; smallpox; smith; smithfield; socage; sokemen; soldiers; solicitor; son; spanish armada; speedy pursuit; spinning; spinning jenny; spinning wheel; spinsters; spouse; st. augustine; st. germain; st. lazarus; st. paul's church; statute of laborers; squire; staple; star chamber court; strangers; steam; steel; stengesdint; steward; stock-and-land lease; stocking-frame knitters; stocks; stolen goods; stone; stonehenge; straw; streets; subtenants; successor; sue; suit; summary; summon; sunday; supporters of the bill of rights society; surety; surgery; surname; swearing; swords; tale; tallage; tanner; tavern; tax; tea; team; ten commandments; tenancies; tenancy, tenant; tenants in common; tenement; tenure; term; testament; thames, river; theft; thegn; theodore; theology; theow; thermometer; thirty years' war; tile; tiler; tin; title; tolls; tories; tort; torture; tournament; tower hill; tower of london; town; town-reeve; trades, tradesmen; transportation; treason, high and petit; treasure trove; treasury; trespass; trespass on the case; trial by combat (battle); trover; turnpike; twelve; tyne; umbrella, unitarians; university; usury; use-trust; vagrants, vagrancy; vassal; verderer; verdict; vessels; vikings; vill; villages; villeinage; villeins; vintner; virginia; wall; wallis, john; war of the roses; ward, wardship; wardmoot; wardrobe; warrantor, warranty; waste; water; watermen; watermill; waterwheel; watt, james; wealthy; weapon; weaving, weavers; webs; wed; wedding; weights; weir; well; wer, wergeld; wesley, john; westminster; whigs; whipping; white tower; whitsuntide; widows; wife; wife-beating; wills; winchester; wind mills; window tax; wine; witch; witchcraft; wite; witen; witenagemot; witnesses; wives; wolsey, thomas; wyclif, john; woman-covert; women; wool; wounding; writs; writs of assistance; writs of error; year books; yeomanry, yeomen (this file was produced from scans of public domain works at the university of michigan's making of america collection.) abridgment of the debates of congress, from to . from gales and seaton's annals of congress; from their register of debates; and from the official reported debates, by john c. rives. by the author of the thirty years' view. vol ii. new york: d. appleton and company, and broadway. london: little britain. . entered according to act of congress, in the year , by d. appleton and company, in the clerk's office of the district court for the southern district of new york. fourth congress.--second session. begun at the city of philadelphia, december , . proceedings in the senate. monday, december , . present: john adams, vice president of the united states, and president of the senate. john langdon and samuel livermore, from new hampshire. benjamin goodhue, from massachusetts. william bradford, from rhode island. james hillhouse and uriah tracy, from connecticut. elijah paine, and isaac tichenor, from vermont. john rutherford and richard stockton, from new jersey. william bingham, from pennsylvania. henry latimer, from delaware. humphrey marshall, from kentucky. william cocke, from tennessee. jacob read, from south carolina. james gunn, from georgia. the number of senators present not being sufficient to constitute a quorum, they adjourned to o'clock to-morrow morning. tuesday, december . alexander martin, from the state of north carolina, and william blount, from the state of tennessee, severally attended. the vice president communicated a letter from pierce butler, notifying the resignation of his seat in the senate, which was read. the credentials of the after-named senators were severally read:--of benjamin goodhue, appointed a senator by the state of massachusetts, in place of george cabot, resigned; of isaac tichenor, appointed a senator by the state of vermont, in place of moses robinson, resigned; of james hillhouse, appointed a senator by the state of connecticut in place of oliver ellsworth, whose seat is become vacant; of uriah tracy, appointed a senator by the state of connecticut, in place of jonathan trumbull, resigned; of john laurance, appointed a senator by the state of new york, in place of rufus king, whose seat is become vacant; of richard stockton, appointed a senator by the state of new jersey, in place of frederick frelinghuysen, resigned; also, of william blount and william cocke, appointed senators by the state of tennessee;--and, the oath required by law being respectively administered to them, they took their seats in the senate. a message from the house of representatives informed the senate that a quorum of the house of representatives is assembled, and ready to proceed to business. _ordered_, that the secretary wait on the president of the united states, and acquaint him that a quorum of the senate is assembled. _ordered_, that the secretary acquaint the house of representatives that a quorum of the senate is assembled, and ready to proceed to business. a message from the house of representatives informed the senate that they have appointed a joint committee, on their part, together with such committee as the senate may appoint, to wait on the president of the united states, and notify him that a quorum of the two houses is assembled, and ready to receive any communications that he may be pleased to make to them. _resolved_, that the senate concur in the above resolution, and that messrs. read and livermore be the joint committee on the part of the senate. _ordered_, that the secretary acquaint the house of representatives therewith. mr. read reported, from the joint committee appointed for that purpose, that they had waited on the president of the united states, and had notified him that a quorum of the two houses of congress are assembled, and that the president of the united states acquainted the committee that he would meet the two houses in the representatives' chamber, at twelve o'clock to-morrow. wednesday, december . john henry, from the state of maryland, attended. a message from the house of representatives informed the senate that they are now ready to meet the senate in the chamber of that house, to receive such communications as the president of the united states shall be pleased to make to them. whereupon, the senate repaired to the chamber of the house of representatives, for the purpose above expressed. the senate returned to their own chamber, and a copy of the speech of the president of the united states, this day addressed to both houses of congress, was read. [for which, see the proceedings in the house of representatives of december , _post._] _ordered_, that messrs. read, tracy, and bingham, be a committee to report the draft of an address to the president of the united states, in answer to his speech this day to both houses of congress. it was further ordered that the speech of the president of the united states, this day communicated to both houses, be printed for the use of the senate. _resolved_, that each senator be supplied, during the present session, with copies of three such newspapers printed in any of the states as he may choose, provided that the same are furnished at the rate of the usual annual charge for such papers. thursday, december . john laurance, from the state of new york, attended, and, the oath required by law being administered to him, he took his seat in the senate. _ordered_, that messrs. stockton, read, and bingham, be a committee to inquire whether any, and what, regulations are proper to be made, on the subject of the resignation of a senator of the united states. friday, december . timothy bloodworth, from the state of north carolina, attended. a message from the house of representatives informed the senate that they have resolved that two chaplains be appointed to congress for the present session--one by each house--who shall interchange weekly; in which they desire the concurrence of the senate. whereupon, the senate _resolved_, that they do concur therein, and that the right reverend bishop white be chaplain on the part of the senate. mr. read, from the committee appointed for the purpose, reported the draft of an address to the president of the united states, in answer to his speech to both houses of congress, at the opening of the session; which was read. on motion that it be printed for the use of the senate, it passed in the negative. on motion, it was agreed to consider the report in paragraphs; and, after debate, a motion was made for recommitment, which passed in the negative; and, having agreed to amend the report, the further consideration thereof was postponed. saturday, december . _address to the president._ the senate resumed the consideration of the report of the committee in answer to the address of the president of the united states to both houses of congress; and, after further amendments, it was unanimously adopted, as follows: we thank you, sir, for your faithful and detailed exposure of the existing situation of our country; and we sincerely join in sentiments of gratitude to an overruling providence for the distinguished share of public prosperity and private happiness which the people of the united states so peculiarly enjoy. we are fully sensible of the advantages that have resulted from the adoption of measures (which you have successfully carried into effect) to preserve peace, cultivate friendship, and promote civilization, amongst the indian tribes on the western frontiers; feelings of humanity, and the most solid political interests, equally encourage the continuance of this system. we observe, with pleasure, that the delivery of the military posts, lately occupied by the british forces, within the territory of the united states, was made with cordiality and promptitude, as soon as circumstances would admit; and that the other provisions of our treaties with great britain and spain, that were objects of eventual arrangement, are about being carried into effect, with entire harmony and good faith. the unfortunate but unavoidable difficulties that opposed a timely compliance with the terms of the algerine treaty, are much to be lamented; as they may occasion a temporary suspension of the advantages to be derived from a solid peace with that power, and a perfect security from its predatory warfare; at the same time, the lively impressions that affected the public mind on the redemption of our captive fellow-citizens, afford the most laudable incentive to our exertions to remove the remaining obstacles. we perfectly coincide with you in opinion, that the importance of our commerce demands a naval force for its protection against foreign insult and depredation, and our solicitude to attain that object will be always proportionate to its magnitude. the necessity of accelerating the establishment of certain useful manufactures, by the intervention of the legislative aid and protection, and the encouragement due to agriculture by the creation of boards, (composed of intelligent individuals,) to patronize this primary pursuit of society, are subjects which will readily engage our most serious attention. a national university may be converted to the most useful purposes; the science of legislation being so essentially dependent on the endowments of the mind, the public interests must receive effectual aid from the general diffusion of knowledge; and the united states will assume a more dignified station among the nations of the earth, by the successful cultivation of the higher branches of literature. a military academy may be likewise rendered equally important. to aid and direct the physical force of the nation, by cherishing a military spirit, enforcing a proper sense of discipline, and inculcating a scientific system of tactics, is consonant to the soundest maxims of public policy. connected with, and supported by such an establishment, a well regulated militia, constituting the natural defence of the country, would prove the most effectual, as well as economical, preservative of peace. we cannot but consider, with serious apprehensions, the inadequate compensations of the public officers, especially of those in the more important stations. it is not only a violation of the spirit of a public contract, but is an evil so extensive in its operation, and so destructive in its consequences, that we trust it will receive the most pointed legislative attention. we sincerely lament that, whilst the conduct of the united sates has been uniformly impressed with the character of equity, moderation, and love of peace, in the maintenance of all their foreign relationships, our trade should be so harassed by the cruisers and agents of the republic of france, throughout the extensive departments of the west indies. whilst we are confident that no cause of complaint exists that could authorize an interruption of our tranquillity or disengage that republic from the bonds of amity, cemented by the faith of treaties, we cannot but express our deepest regrets that official communications have been made to you, indicating a more serious disturbance of our commerce. although we cherish the expectation that a sense of justice, and a consideration of our mutual interests, will moderate their councils, we are not unmindful of the situation in which events may place us, nor unprepared to adopt that system of conduct, which, compatible with the dignity of a respectable nation, necessity may compel us to pursue. we cordially acquiesce in the reflection, that the united states, under the operation of the federal government, have experienced a most rapid aggrandizement and prosperity, as well political as commercial. whilst contemplating the causes that produce this auspicious result, we must acknowledge the excellence of the constitutional system, and the wisdom of the legislative provisions; but we should be deficient in gratitude and justice did we not attribute a great portion of these advantages to the virtue, firmness, and talents of your administration--which have been conspicuously displayed in the most trying times, and on the most critical occasions. it is, therefore, with the sincerest regret that we now receive an official notification of your intentions to retire from the public employment of your country. when we review the various scenes of your public life, so long and so successfully devoted to the most arduous services, civil and military, as well during the struggles of the american revolution, as the convulsive periods of a recent date; we cannot look forward to your retirement without our warmest affections and most anxious regards accompanying you, and without mingling with our fellow-citizens at large in the sincerest wishes for your personal happiness that sensibility and attachment can express. the most effectual consolation that can offer for the loss we are about to sustain, arises from the animating reflection, that the influence of your example will extend to your successors, and the united states thus continue to enjoy an able, upright, and energetic administration. john adams, _vice president of the united states, and president of the senate._ _ordered_, that the committee who prepared the address, wait on the president of the united states, and desire him to acquaint the senate at what time and place it will be most convenient for him that it should be presented. mr. read reported from the committee, that they had waited on the president of the united states, and that he would receive the address of the senate on monday next, at twelve o'clock, at his own house. whereupon, _resolved_, that the senate will, on monday next, at twelve o'clock, wait on the president of the united states accordingly. monday, december . theodore foster, from the state of rhode island; john brown, from the state of kentucky; and henry tazewell, from the state of virginia, severally attended. _address to the president._ agreeably to the resolution of the th instant, the senate waited on the president of the united states, and the vice president, in their name, presented the address then agreed to. to which the president made the following reply: gentlemen: it affords me great satisfaction to find in your address a concurrence in sentiment with me on the various topics which i presented for your information and deliberation; and that the latter will receive from you an attention proportioned to their respective importance. for the notice you take of my public services, civil and military, and your kind wishes for my personal happiness, i beg you to accept my cordial thanks. those services, and greater, had i possessed ability to render them, were due to the unanimous calls of my country, and its approbation is my abundant reward. when contemplating the period of my retirement, i saw virtuous and enlightened men, among whom i relied on the discernment and patriotism of my fellow-citizens to make the proper choice of a successor; men who would require no influential example to ensure to the united states "an able, upright, and energetic administration." to such men i shall cheerfully yield the palm of genius and talents to serve our common country; but, at the same time, i hope i may be indulged in expressing the consoling reflection, (which consciousness suggests,) and to bear it with me to my grave, that none can serve it with purer intentions than i have done, or with a more disinterested zeal. g. washington. the senate returned to their own chamber, and then adjourned. wednesday, december . theodore sedgwick, appointed a senator by the state of massachusetts, in place of caleb strong, resigned, attended, produced his credentials, and the oath required by law being administered to him, he took his seat in the senate. tuesday, december . john eager howard, appointed a senator by the state of maryland, in place of richard potts, resigned, produced his credentials, and the oath required by law being administered, he took his seat in the senate. josiah tattnall, from the state of georgia, attended. wednesday, december . james ross, from the state of pennsylvania, attended. wednesday, january , . john vining, from the state of delaware, attended. thursday, january . aaron burr, from the state of new york, and stevens thomson mason, from the state of virginia, attended. friday, january . john hunter, appointed a senator by the state of south carolina, in place of pierce butler, resigned, attended, produced his credentials, and the oath required by law, being administered to him, he took his seat in the senate. thursday, february . mr. sedgwick reported, from the joint committee appointed on the part of the senate, on the subject of the election of president and vice president, that, in their opinion, the following resolution ought to be adopted, viz: "that the two houses shall assemble in the chamber of the house of representatives on wednesday next, at twelve o'clock; that one person be appointed a teller on the part of the senate, to make a list of the votes as they shall be declared: that the result shall be delivered to the president of the senate, who shall announce the state of the vote and the persons elected, to the two houses assembled as aforesaid; which shall be deemed a declaration of the persons elected president and vice president, and, together with a list of votes, be entered on the journals of the two houses." wednesday, february . a message from the house of representatives informed the senate that they are ready to meet the senate in the chamber of that house, agreeably to the report of the joint committee, to attend the opening and examining the votes of the electors for president and vice president of the united states, as the constitution provides. the two houses of congress accordingly assembled in the representatives' chamber, and the certificates of the electors of sixteen states were, by the vice president, opened and delivered to the tellers, appointed for the purpose, who, having examined and ascertained the number of votes, presented a list thereof to the vice president, which was read as follows: for john adams, votes; for thomas jefferson, ; for thomas pinckney, ; for aaron burr, ; for samuel adams, ; for oliver ellsworth, ; for george clinton, ; for john jay, ; for james iredell ; for george washington, ; for john henry, ; for samuel johnson, ; for charles cotesworth pinckney, ; whereupon the vice president addressed the two houses of congress as follows: in obedience to the constitution and law of the united states, and to the commands of both houses of congress, expressed in their resolution passed in the present session, i now declare that john adams is elected president of the united states, for four years, to commence with the fourth day of march next; and that thomas jefferson is elected vice president of the united states, for four years, to commence with the fourth day of march next. and may the sovereign of the universe, the ordainer of civil government on earth, for the preservation of liberty, justice, and peace among men, enable both to discharge the duties of these offices conformably to the constitution of the united states, with conscientious diligence, punctuality, and perseverance. the vice president then delivered the votes of the electors to the secretary of the senate, the two houses of congress separated, and the senate returned to their own chamber, and soon after adjourned. thursday, february . the vice president laid before the senate the following communication: _gentlemen of the senate_: in consequence of the declaration made yesterday in the chamber of the house of representatives of the election of a president and vice president of the united states, the record of which has just now been read from your journal by your secretary, i have judged it proper to give notice that, on the th of march next at o'clock i propose, to attend again in the chamber of the house of representatives, in order to take the oath prescribed by the constitution of the united states to be taken by the president, to be administered by the chief justice or such other judge of the supreme court of the united states as can most conveniently attend; and, in case none of those judges can attend, by the judge of the district of pennsylvania, before such senators and representatives of the united states as may find it convenient to honor the transaction with their presence. _ordered_, that the secretary carry an attested copy of this communication to the house of representatives. _ordered_, that messrs. sedgwick, tazewell, and read, be a joint committee, with such committee as may be appointed on the part of the house of representatives, to consider whether any, and if any, what measures ought to be adopted for the further accommodation of the president of the united states, for the term commencing on the th day of march next. _ordered_, that the secretary desire the concurrence of the house of representatives in the appointment of a joint committee on their part. a message from the house of representatives informed the senate that they have agreed to the report of the joint committee appointed to ascertain and report a mode of examining the votes for president and vice president of the united states, and of notifying the persons elected of their election. mr. sedgwick, from the joint committee to whom it was referred to join such committee as might be appointed by the house of representatives to ascertain and report a mode of examining the votes for president and vice president of the united states, and of notifying the persons elected of their election, reported that, having further concurred with the committee appointed by the house of representatives, that, in their opinion, the following resolution ought to be adopted by the senate: "_resolved_, that the secretary of the senate be directed to give, by letter, to the vice president elect, a notification of his election." on motion, it was agreed to insert the president of the senate instead of the secretary; and, on motion, it was agreed to reconsider the resolution, and to recommit the report from the joint committee. mr. sedgwick reported, from the joint committee last mentioned, that the committee on the part of the house of representatives considered themselves discharged from their commission. _resolved_, that the senate disagree to the report of the joint committee on the mode of notifying the vice president elect of his election; and that a committee be appointed on the part of the senate, to confer with such committee as may be appointed on the part of the house of representatives, on the report of the joint committee above mentioned; and that messrs. sedgwick, laurance and read, be the managers at the conference on the part of the senate. _ordered_, that the secretary acquaint the house of representatives therewith. on motion, that it be "_resolved_, that the secretary of the senate be directed, and he is hereby directed, to lay before the president of the united states a copy of the journal of yesterday, relative to the opening and counting of votes for president and vice president of the united states, and the declaration of the president of the senate thereon; and, also, to present to the president of the united states a copy of the notification given by the president elect of the time, place, and manner, of qualifying to execute the duties of his office." _ordered_, that the motion lie until to-morrow for consideration. friday, february . the senate resumed the consideration of the motion made yesterday, that the secretary of the senate wait on the president of the united states, and notify him of the election of president and vice president of the united states, to commence with the th day of march next. on motion, to insert "a committee" in place of "the secretary," it passed in the negative. and the motion being amended, was adopted as follows: _ordered_, that the secretary of the senate lay before the president of the united states a copy of the journal of the th instant, relative to the opening and counting the votes for president and vice president of the united states, and the declaration of the president of the senate consequent thereon; and, also a copy of the notification given by the president elect of the time, place, and manner of qualifying to execute the duties of his office. a message from the house of representatives informed the senate that they agree to the report of the joint committee appointed by the two houses to confer on a proper mode of notifying the vice president elect of his election. mr. sedgwick, from the committee of conference above mentioned, reported that the following resolution should be adopted by the house of representatives: "_resolved_, that the notification of the election of the vice president elect be made by such person and in such manner as the senate may direct." on motion, that it be "_resolved_, that the president of the united states be requested to communicate (in such manner as he shall judge most proper) to the person elected vice president of the united states, for the term of four years, to commence th day of march next, information of his said election:" it passed in the negative. _ordered_, that the resolution this day agreed to by the house of representatives, relative to the notification of the election of the vice president elect, be referred to messrs. mason, hillhouse, and sedgwick, to consider and report thereon to the senate. mr. mason reported, from the committee last appointed; and, the report being read, was amended and adopted as follows: _resolved_, that the president of the united states be requested to cause to be transmitted to thomas jefferson, esq., of virginia, vice president elect of the united states, notification of his election to that office; and that the president of the senate do make out and sign a certificate in the words following: be it known, that the senate and house of representatives of the united states of america, being convened in the city of philadelphia, on the second wednesday in february, in the year of our lord one thousand seven hundred and ninety-seven, the underwritten vice president of the united states and president of the senate did, in the presence of the said senate and house of representatives, open all the certificates and count all the votes of the electors for a president and for a vice president; by which it appears that thomas jefferson, esquire, was duly elected, agreeably to the constitution, vice president of the united states of america. "in witness whereof, i have hereunto set my hand and seal, this th day of february, ." _ordered_, that the secretary lay this resolution before the president of the united states. monday, february . on request, the vice president was excused from further attendance in the senate after wednesday next. wednesday, february . _withdrawal of the vice-president, (now president elect of the united states,) and his valedictory to the senate._ after the consideration of the executive business, a motion was made that the senate now adjourn; when the vice-president addressed them as follows: _gentlemen of the senate_: if, in the general apprehension of an intention to retire in that most eminent citizen, to whom all eyes had been directed, and all hearts attracted, as the centre of our union, for so long a period, the public opinion had exhibited any clear indication of another, in whom our fellow-citizens could have generally united, as soon as i read that excellent address, which announced the necessity of deliberation in the choice of a president, i should have imitated the example of a character with which i have co-operated, though in less conspicuous and important stations, and maintained an uninterrupted friendship for two and twenty years. but, as a number of characters appeared to stand in the general estimation so nearly on a level, as to render it difficult to conjecture on which the majority would fall; considering the relation in which i stood to the people of america, i thought it most respectful to them, and most conducive to the tranquillity of the public mind, to resign myself, with others, a silent spectator of the general deliberation, and a passive subject of public discussions. deeply penetrated with gratitude to my countrymen in general, for their long continued kindness to me, and for that steady and affecting confidence, with which those who have most intimately known me, from early life, have, on so many great occasions, intrusted to me the care of their dearest interests; since a majority of their electors, though a very small one, have declared in my favor, and since, in a republican government, the majority, though ever so small, must of necessity decide, i have determined, at every hazard of a high but just responsibility, though with much anxiety and diffidence, once more to engage in their service. their confidence, which has been the chief consolation of my life, is too precious and sacred a deposit ever to be considered lightly; as it has been founded only on the qualities of the heart, it never has been, it never can be, deceived, betrayed, or forfeited by me. it is with reluctance, and with all those emotions of gratitude and affection, which a long experience of your goodness ought to inspire, that i now retire from my seat in this house, and take my leave of the members of the senate. i ought not to declare, for the last time, your adjournment, before i have presented to every senator present, and to every citizen who has ever been a senator of the united states, my thanks, for the candor and favor invariably received from them all. it is a recollection of which nothing can ever deprive me, and it will be a source of comfort to me, through the remainder of my life, that as, on the one hand, in a government constituted like ours, i have for eight years held the second situation under the constitution of the united states, in perfect and uninterrupted harmony with the first, without envy in one, or jealousy in the other; so, on the other hand, i have never had the smallest misunderstanding with any member of the senate. in all the abstruse questions, difficult conjectures, dangerous emergencies, and animated debates, upon the great interests of our country, which have so often and so deeply impressed all our minds, and interested the strongest feelings of the heart, i have experienced a uniform politeness and respect from every quarter of the house. when questions of no less importance than difficulty have produced a difference of sentiment, (and difference of opinion will always be found in free assemblies of men, and probably the greatest diversities upon the greatest questions,) when the senators have been equally divided, and my opinion has been demanded according to the constitution, i have constantly found, in that moiety of the senators from whose judgment i have been obliged to dissent, a disposition to allow me the same freedom of deliberation, and independence of judgment, which they asserted for themselves. within these walls, for a course of years, i have been an admiring witness of a succession of information, eloquence, patriotism, and independence, which, as they would have done honor to any senate in any age, afford a consolatory hope, (if the legislatures of the states are equally careful in their future selections, which there is no reason to distrust,) that no council more permanent than this, as a branch of the legislature, will be necessary, to defend the rights, liberties, and properties of the people, and to protect the constitution of the united states, as well as the constitutions and rights of the individual states, against errors of judgment, irregularities of the passions, or other encroachments of human infirmity, or more reprehensible enterprise, in the executive on one hand, or the more immediate representatives of the people on the other. these considerations will all conspire to animate me in my future course, with a confident reliance, that as far as my conduct shall be uniformly measured by the constitution of the united states, and faithfully directed to the public good, i shall be supported by the senate, as well as by the house of representatives, and the people at large; and on no other conditions ought any support at all to be expected or desired. with cordial wishes for your honor, health, and happiness, and fervent prayers for a continuation of the virtues, liberties, prosperity, and peace, of our beloved country, i avail myself of your leave of absence for the remainder of the session. thursday, february . the vice-president being absent, the senate proceeded to the choice of a president _pro tempore_, as the constitution provides, and the honorable william bingham was duly elected. _ordered_, that the secretary wait on the president of the united states, and notify him of the election of the honorable william bingham, to be president of the senate _pro tempore_. _ordered_, that the secretary notify the house of representatives of this election. on motion, _ordered_, that messrs. sedgwick, burr, and tracy, be a committee to prepare and report the draft of an answer to the address delivered yesterday to the senate, by the vice president of the united states. tuesday, february . the bill to accommodate the president was read the third time; and, being further amended, on motion that it be _resolved_, that this bill pass, it was decided in the affirmative--yeas , nays , as follows: yeas.--messrs. bingham, bloodworth, blount, bradford, brown, foster, goodhue, gunn, henry, hillhouse, howard, langdon, latimer, laurance, livermore, marshall, martin, pain, read, ross, rutherford, sedgwick, stockton, tattnall, tazewell, tichenor, tracy, and vining. nays.--messrs. cocke, hunter, and mason. so it was _resolved_, that this bill pass; that it be engrossed; and that the title thereof be, "an act to accommodate the president." mr. sedgwick reported from the committee appointed for the purpose, the draft of an answer to the address of the vice president of the united states, on his retiring from the senate; which was read. on motion, that it be printed for the use of the senate, it was disagreed to. _ordered_, that the report lie for consideration. wednesday, february . the senate took into consideration the report of the committee, in answer to the address of the vice president of the united states, on his retiring from the senate. on motion to recommit the report, it passed in the negative: and the report being amended, was adopted, as follows: sir: the senate of the united states would be unjust to their own feelings, and deficient in the performance of a duty their relation to the government of their country imposes, should they fail to express their regard for your person, and their respect for your character, in answer to the address you presented to them, on your leaving a station which you have so long and so honorably filled as their president. the motives you have been pleased to disclose which induced you not to withdraw from the public service, at a time when your experience, talents, and virtues, were peculiarly desirable, are as honorable for yourself, as, from our confidence in you, sir, we trust the result will be beneficial to our beloved country. when you retired from your dignified seat in this house, and took your leave of the members of the senate, we felt all those emotions of gratitude and affection, which our knowledge and experience of your abilities and undeviating impartiality ought to inspire; and we should, with painful reluctance, endure the separation, but for the consoling reflection, that the same qualities which have rendered you useful, as the president of this branch of the legislature, will enable you to be still more so, in the exalted station to which you have been called. from you, sir, in whom your country have for a long period placed a steady confidence, which has never been betrayed or forfeited, and to whom they have on so many occasions intrusted the care of their dearest interests, which have never been abused; from you, who, holding the second situation under the constitution of the united states, have lived in uninterrupted harmony with him who has held the first; from you we receive, with much satisfaction, the declaration which you are pleased to make of the opinion you entertain of the character of the present senators, and of that of those citizens who have been heretofore senators. this declaration, were other motives wanting, would afford them an incentive to a virtuous perseverance in the line of conduct which has been honored with your approbation. in your future course, we entertain no doubt that your official conduct will be measured by the constitution, and directed to the public good; you have, therefore, a right to entertain a confident reliance, that you will be supported, as well by the people at large as by their constituted authorities. we cordially reciprocate the wishes which you express for our honor, health, and happiness; we join with yours our fervent prayers for the continuation of the virtues and liberties of our fellow-citizens, for the public prosperity and peace; and for you we implore the best reward of virtuous deeds--the grateful approbation of your constituents, and the smiles of heaven. william bingham, _president of the senate pro tempore_. _ordered_, that the committee who drafted the address wait on the vice president, with the answer of the senate. thursday, february . mr. sedgwick reported, from the committee, that, agreeably to order, they had waited on the vice president of the united states, with the answer to his address, on retiring from the senate--to which the vice president was pleased to make the following reply: an address so respectful and affectionate as this, from gentlemen of such experience and established character in public affairs, high stations in the government of their country, and great consideration, in their several states, as senators of the united states, will do me great honor, and afford me a firm support, wherever it shall be known, both at home and abroad. their generous approbation of my conduct, in general, and liberal testimony to the undeviating impartiality of it, in my peculiar relation to their body, a character which, in every scene and employment of life, i should wish above all others to cultivate and merit, has a tendency to soften asperities, and conciliate animosities, wherever such may unhappily exist; an effect at all times to be desired, and in the present situation of our country, ardently to be promoted by all good citizens. i pray the senate to accept my sincere thanks. john adams. wednesday, march . _executive veto on the army bill._ the president of the united states having stated his objections to the bill, entitled "an act to alter and amend an act, entitled 'an act to ascertain and fix the military establishment of the united states,'" the house of representatives proceeded to consider the objections to the said bill, and have resolved that it do not pass. special session saturday, march . _installation of thomas jefferson as vice president of the united states and president of the senate, and inauguration of john adams as president of the united states._ _to the vice president and senators of the united states respectively_: sir: it appearing to be proper that the senate of the united states should be convened on saturday, the fourth of march instant, you are desired to attend in the chamber of the senate, on that day at ten o'clock in the forenoon, to receive any communications which the president of the united states may then lay before you touching their interests. g. washington. march , . in conformity with the summons from the president of the united states, above recited, the senate accordingly assembled in their chamber. present: thomas jefferson, vice president of the united states and president of the senate. john langdon and samuel livermore, from new hampshire. theodore sedgwick and benjamin goodhue, from massachusetts. theodore foster, from rhode island. james hillhouse and uriah tracy, from connecticut. elijah payne and isaac tichenor, from vermont. john laurance, from new york. richard stockton, from new jersey. james ross and william bingham, from pennsylvania. john vining and henry latimer, from delaware. john henry and john e. howard, from maryland. henry tazewell and stevens t. mason, from virginia. john brown and humphrey marshall, from kentucky. alexander martin and timothy bloodworth, from north carolina. william blount, from tennessee. jacob read, from south carolina. james gunn and josiah tattnall, from georgia. mr. bingham administered the oath of office to the vice president, who took the chair, and the credentials of the following members were read. of mr. foster, mr. goodhue, mr. hillhouse, mr. howard, mr. latimer, mr. mason, mr. ross, and mr. tichenor. and the oath of office being severally administered to them by the vice president, they took their seats in the senate. the vice president then addressed the senate as follows: _gentlemen of the senate_: entering on the duties of the office to which i am called, i feel it incumbent on me to apologize to this honorable house for the insufficient manner in which i fear they may be discharged. at an earlier period of my life, and through some considerable portion of it, i have been a member of legislative bodies, and not altogether inattentive to the forms of their proceedings; but much time has elapsed since that; other duties have occupied my mind, and, in a great degree, it has lost its familiarity with this subject. i fear that the house will have but too frequent occasion to perceive the truth of this acknowledgment. if a diligent attention, however, will enable me to fulfil the functions now assigned me, i may promise that diligence and attention shall be sedulously employed. for one portion of my duty, i shall engage with more confidence, because it will depend on my will and not my capacity. the rules which are to govern the proceedings of this house, so far as they shall depend on me for their application, shall be applied with the most rigorous and inflexible impartiality, regarding neither persons, their views, nor principles, and seeing only the abstract proposition subject to my decision. if, in forming that decision, i concur with some and differ from others, as must of necessity happen, i shall rely on the liberality and candor of those from whom i differ, to believe, that i do it on pure motives. i might here proceed, and with the greatest truth, to declare my zealous attachment to the constitution of the united states, that i consider the union of these states as the first of blessings and as the first of duties the preservation of that constitution which secures it; but i suppose these declarations not pertinent to the occasion of entering into an office whose primary business is merely to preside over the forms of this house, and no one more sincerely prays that no accident may call me to the higher and more important functions which the constitution eventually devolves on this office. these have been justly confided to the eminent character which has preceded me here, whose talents and integrity have been known and revered by me through a long course of years, have been the foundation of a cordial and uninterrupted friendship between us, and i devoutly pray he may be long preserved for the government, the happiness, and prosperity, of our common country.[ ] on motion, it was agreed to repair to the chamber of the house of representatives to attend the administration of the oath of office to john adams, president of the united states; which the senate accordingly did; and, being seated, the president of the united states (attended by the heads of departments, the marshal of the district and his officers) came into the chamber of the house of representatives and took his seat in the chair usually occupied by the speaker. the vice president and secretary of the senate were seated in advance, inclining to the right of the president, the late speaker of the house of representatives and clerk on the left, and the justices of the supreme court were seated round a table in front of the president of the united states. the late president of the united states, the great and good washington,[ ] took a seat, as a private citizen, a little in front of the seats assigned for the senate, which were on the south side of the house, the foreign ministers and members of the house of representatives took their usual seats--a great concourse of both sexes being present. after a short pause, the president of the united states arose, and communicated the following address: "when it was first perceived, in early times, that no middle course for america remained, between unlimited submission to a foreign legislature, and a total independence of its claims, men of reflection were less apprehensive of danger, from the formidable power of fleets and armies they must determine to resist, than from those contests and dissensions, which would certainly arise concerning the forms of government to be instituted over the whole and over the parts of this extensive country. relying, however, on the purity of their intentions, the justice of their cause, and the integrity and intelligence of the people, under an overruling providence, which had so signally protected this country from the first, the representatives of this nation, then consisting of little more than half its present number, not only broke to pieces the chains which were forging, and the rod of iron that was lifted up, but frankly cut asunder the ties which had bound them, and launched into an ocean of uncertainty. "the zeal and ardor of the people, during the revolutionary war, supplying the place of government, commanded a degree of order, sufficient at least for the preservation of society. the confederation, which was early felt to be necessary, was prepared from the models of the batavian and helvetic confederacies, the only examples which remain, with any detail and precision, in history, and certainly the only ones which the people at large had ever considered. but, reflecting on the striking difference, in many particulars, between this country and those where a courier may go from the seat of government to the frontier in a single day, it was then certainly foreseen by some who assisted in congress at the formation of it, that it could not be durable. "negligence of its regulations, inattention to its recommendations, if not disobedience to its authority, not only in individuals but in states, soon appeared, with their melancholy consequences: universal languor; jealousies and rivalries of states; decline of navigation and commerce; discouragement of necessary manufactures; universal fall in the value of lands and their produce; contempt of public and private faith; loss of consideration and credit with foreign nations; and, at length, in discontents, animosities, combinations, partial conventions, and insurrection, threatening some great national calamity. "in this dangerous crisis, the people of america were not abandoned by their usual good sense, presence of mind, resolution, or integrity. measures were pursued to concert a plan, to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty. the public disquisitions, discussions, and deliberations, issued in the present happy constitution of government. "employed in the service of my country abroad, during the whole course of these transactions, i first saw the constitution of the united states in a foreign country. irritated by no literary altercation, animated by no public debate, heated by no party animosity, i read it with great satisfaction, as a result of good heads, prompted by good hearts; as an experiment, better adapted to the genius, character, situation, and relations, of this nation and country, than any which had ever been proposed or suggested. in its general principles and great outlines, it was conformable to such a system of government as i had ever most esteemed, and in some states, my own native state in particular, had contributed to establish. claiming a right of suffrage, in common with my fellow-citizens, in the adoption or rejection of a constitution which was to rule me and my posterity, as well as them and theirs, i did not hesitate to express my approbation of it, on all occasions, in public and in private. it was not then, nor has been since, any objection to it, in my mind, that the executive and senate were not more permanent. nor have i ever entertained a thought of promoting any alteration in it, but such as the people themselves, in the course of their experience, should see and feel to be necessary or expedient, and by their representatives in congress and the state legislatures, according to the constitution itself, adopt and ordain. "returning to the bosom of my country, after a painful separation from it, for ten years, i had the honor to be elected to a station under the new order of things, and i have repeatedly laid myself under the most serious obligations to support the constitution. the operation of it has equalled the most sanguine expectations of its friends, and from an habitual attention to it, satisfaction in its administration and delight in its effects upon the peace, order, prosperity, and happiness of the nation, i have acquired an habitual attachment to it, and veneration for it. "what other form of government, indeed, can so well deserve our esteem and love? "there may be little solidity in an ancient idea that congregations of men into cities and nations are the most pleasing objects in the sight of superior intelligences: but this is very certain, that, to a benevolent human mind, there can be no spectacle presented by any nation more pleasing, more noble, majestic, or august, than an assembly like that which has so often been seen in this and the other chamber of congress, of a government, in which the executive authority, as well as that of all the branches of the legislature, are exercised by citizens selected, at regular periods, by their neighbors, to make and execute laws for the general good. can any thing essential, any thing more than mere ornament and decoration, be added to this by robes and diamonds? can authority be more amiable and respectable, when it descends from accidents, or institutions established in remote antiquity, than when it springs fresh from the hearts and judgments of an honest and enlightened people? for, it is the people only that are represented: it is their power and majesty that are reflected, and only for their good, in every legitimate government, under whatever form it may appear. the existence of such a government as ours, for any length of time, is a full proof of a general dissemination of knowledge and virtue throughout the whole body of the people. and what object or consideration more pleasing than this can be presented to the human mind? if national pride is ever justifiable or excusable, it is when it springs, not from power or riches, grandeur or glory, but from conviction of national innocence, information, and benevolence. "in the midst of these pleasing ideas, we should be unfaithful to ourselves, if we should ever lose sight of the danger to our liberties, if any thing partial or extraneous should infect the purity of our free, fair, virtuous, and independent elections. if an election is to be determined by a majority of a single vote, and that can be procured by a party, through artifice or corruption, the government may be the choice of a party, for its own ends, not of the nation for the national good. if that solitary suffrage can be obtained by foreign nations, by flattery or menaces, by fraud or violence by terror, intrigue, or venality, the government may not be the choice of the american people, but of foreign nations. it may be foreign nations who govern us, and not we the people who govern ourselves. and candid men will acknowledge, that, in such cases, choice would have little advantage to boast of, over lot or chance. "such is the amiable and interesting system of government (and such are some of the abuses to which it may be exposed) which the people of america have exhibited to the admiration and anxiety of the wise and virtuous of all nations, for eight years, under the administration of a citizen, who, by a long course of great actions, regulated by prudence, justice, temperance, and fortitude, conducting a people, inspired with the same virtues, and animated with the same ardent patriotism and love of liberty, to independence and peace, to increasing wealth and unexampled prosperity, has merited the gratitude of his fellow-citizens, commanded the highest praises of foreign nations, and secured immortal glory with posterity. "in that retirement which is his voluntary choice, may he long live to enjoy the delicious recollection of his services, the gratitude of mankind, the happy fruits of them to himself and the world, which are daily increasing, and that splendid prospect of the future fortunes of this country, which is opening from year to year. his name may be still a rampart, and the knowledge that he still lives a bulwark, against all open or secret enemies of his country's peace. his example has been recommended to the imitation of his successors, by both houses of congress, and by the voice of the legislatures and the people throughout the nation. "on this subject it might become me better to be silent, or to speak with diffidence; but as something may be expected, the occasion, i hope, will be admitted as an apology, if i venture to say, that if a preference upon principle, of a free republican government, formed upon long and serious reflection, after a diligent and impartial inquiry after truth; if an attachment to the constitution of the united states, and a conscientious determination to support it, until it shall be altered by the judgments and wishes of the people, expressed in the mode prescribed in it; if a respectful attention to the constitutions of the individual states, and a constant caution and delicacy towards the state government; if an equal and impartial regard to the rights, interest, honor, and happiness, of all the states in the union, without preference or regard to a northern or southern, an eastern or western position, their various political opinions on unessential points, or their personal attachments; if a love of virtuous men of all parties and denominations; if a love of science and letters, and a wish to patronize every rational effort to encourage schools, colleges, universities, academies, and every institution for propagating knowledge, virtue, and religion, among all classes of the people, not only for their benign influence on the happiness of life in all its stages and classes, and of society in all its forms, but as the only means of preserving our constitution from its natural enemies, the spirit of sophistry, the spirit of party, the spirit of intrigue, the profligacy of corruption, and the pestilence of foreign influence, which is the angel of destruction to elective governments; if a love of equal laws, of justice, and humanity, in the interior administration; if an inclination to improve agriculture, commerce, and manufactures, for necessity, convenience, and defence; if a spirit of equity and humanity towards the aboriginal nations of america, and a disposition to meliorate their condition, by inclining them to be more friendly to us, and our citizens to be more friendly to them; if an inflexible determination to maintain peace and inviolable faith with all nations, and that system of neutrality and impartiality among the belligerent powers of europe, which has been adopted by this government, and so solemnly sanctioned by both houses of congress, and applauded by the legislatures of the states and the public opinion, until it shall be otherwise ordained by congress; if a personal esteem for the french nation, formed in a residence of seven years, chiefly among them, and a sincere desire to preserve the friendship which has been so much for the honor and interest of both nations; if, while the conscious honor and integrity of the people of america, and the internal sentiment of their own power and energies must be preserved, an earnest endeavor to investigate every just cause, and remove every colorable pretence of complaint; if an intention to pursue, by amicable negotiation, a reparation for the injuries that have been committed on the commerce of our fellow-citizens by whatever nation, and, if success cannot be obtained, to lay the facts before the legislature, that they may consider what further measures the honor and interest of the government and its constituents demand; if a resolution to do justice, as far as may depend upon me, at all times and to all nations, and maintain peace, friendship, and benevolence, with all the world; if an unshaken confidence in the honor, spirit, and resources of the american people, on which i have so often hazarded my all, and never been deceived; if elevated ideas of the high destinies of this country, and of my own duties towards it, founded on a knowledge of the moral principles and intellectual improvements of the people, deeply engraven on my mind in early life, and not obscured, but exalted by experience and age; and with humble reverence, i feel it to be my duty to add, if a veneration for the religion of a people who profess and call themselves christians, and a fixed resolution to consider a decent respect for christianity among the best recommendations for the public service, can enable me, in any degree, to comply with your wishes, it shall be my strenuous endeavor, that this sagacious injunction of the two houses shall not be without effect. "with this great example before me, with the sense and spirit, the faith and honor, the duty and interest, of the same american people, pledged to support the constitution of the united states, i entertain no doubt of its continuance in all its energy, and my mind is prepared, without hesitation, to lay myself under the most solemn obligations to support it to the utmost of my power. "and may that being who is supreme over all, the patron of order, the fountain of justice, and the protector, in all ages of the world, of virtuous liberty, continue his blessing upon this nation and its government, and give it all possible success and duration, consistent with the ends of his providence." the oath of office was then administered to him by the chief justice of the supreme court of the united states, the associate justices attending. after which, the president of the united states retired, and the senate repaired to their own chamber. on motion, _ordered_, that messrs. langdon and sedgwick be a committee to wait on the president of the united states, and notify him that the senate is assembled, and ready to adjourn unless he may have any communications to make to them. mr. langdon reported, from the committee, that they had waited on the president of the united states, who replied, that he had no communication to make to the senate, except his good wishes for their health and prosperity, and a happy meeting with their families and friends. the senate then adjourned without day. fourth congress.--second session. proceedings and debates in the house of representatives. monday, december , . this being the day appointed by the constitution for the annual meeting of congress, in the house of representatives, the following named members appeared and took their seats, viz: _from new hampshire._--abiel foster, nicholas gilman, john s. sherburne, and jeremiah smith. _from massachusetts._--fisher ames, theophilus bradbury, henry dearborn, dwight foster, nathaniel freeman, jr., samuel lyman, william lyman, john read, george thatcher, joseph b. varnum, and peleg wadsworth. _from rhode island._--francis malbone. _from connecticut._--joshua coit, chauncey goodrich, roger griswold, nathaniel smith, and zephaniah swift. _from new york._--theodorus bailey, william cooper, ezekiel gilbert, henry glenn, jonathan n. havens, john e. van allen, philip van cortlandt, and john williams. _from new jersey._--jonathan dayton, aaron kitchell, and isaac smith. _from pennsylvania._--albert gallatin, samuel maclay, frederick augustus muhlenberg, john richards, samuel sitgreaves, and john swanwick. _from delaware._--john patton. _from maryland._--george dent, william hindman, and richard sprigg, jr. _from virginia._--john clopton, isaac coles, george jackson, james madison, anthony new, and robert rutherford. _from kentucky._--christopher greenup. _from north carolina._--thomas blount and matthew locke. _from south carolina._--william smith. _from georgia._--abraham baldwin. the following new members appeared, produced their credentials, were qualified, and took their seats, viz: _from tennessee._--andrew jackson. _from maryland._--william craik, in place of jeremiah crabb, resigned. _from connecticut._--james davenport, in place of james hillhouse, appointed a senator of the united states. the speaker laid before the house a letter from the governor of pennsylvania, with the return of the election of george ege, to serve as a member of the house in place of daniel heister, resigned. a quorum, consisting of a majority of the whole number, being present, it was ordered that the clerk wait on the senate, to inform them that this house was ready to proceed to business; but it appeared that the senate had not been able to form a quorum by one member, and had adjourned. mr. william smith presented a petition from thomas lloyd, proposing to take, in short-hand, and publish the debates of congress at $ , per session salary. the expense of printing, &c. he estimated at $ , for which he would furnish the house with five hundred copies of that work; engaging to use every possible precaution, and pay prompt attention. mr. s. referred to the unfavorable reception of a proposal of this nature at the last session, and supposed this would not be more successful; however, he moved that it be referred to a committee. the motion was agreed to, and mr. w. smith, mr. gallatin, and mr. swift, were appointed to examine the petition, and report thereon to the house. tuesday, december . several other members, to wit: from vermont, israel smith; from new jersey, mark thompson; from pennsylvania, richard thomas; from virginia, carter b. harrison, john heath, and abraham venable; and from north carolina, jesse franklin, william barry grove, james holland, and nathaniel macon, appeared, and took their seats in the house. the speaker observed, that, as there were several returns of new elections of members to serve in this session, it was proper that, pursuant to a rule of the house, a committee of elections be appointed. a committee was accordingly appointed, of mr. venable, mr. swift, mr. dent, mr. dearborn, mr. blount, mr. muhlenberg, and mr. a. foster. mr. macon moved that a committee of revisal and unfinished business of last session be appointed, pursuant to the standing rules and orders of the house, observing that, as the session would be but short, it would be necessary to be early in the appointment of committees. whereon mr. gilman, mr. r. sprigg, jr., and mr. macon were appointed. notice was received that a quorum of the senate was formed. on motion, it was, therefore, resolved, that a committee of three members be appointed to wait on the president of the united states, in conjunction with a committee from the senate, to inform him that a quorum of both houses was assembled, and ready to receive any communications that he may please to make. mr. ames, mr. madison, and mr. sitgreaves, were accordingly appointed. a message was received from the senate informing the house that they had formed a quorum: whereupon the clerk went to the senate with the resolution of this house. the secretary soon after returned, informing the house that the senate had concurred in the resolution, and formed a committee for that purpose. mr. ames, from the committee appointed for that purpose, reported that the committee had waited on the president, who was pleased to signify to them that he would make a communication to both houses of congress to-morrow, at o'clock, in the representatives' chamber. wednesday, december . another member, to wit, samuel sewall, from massachusetts, in place of benjamin goodhue, appointed a senator of the united states, appeared, produced his credentials, was qualified, and took his seat. a message was sent to the senate, informing them that this house was ready, agreeably to appointment, to receive communications from the president; whereon the senate attended, and took their seats. at o'clock the president attended, and, after taking his seat, rose and delivered the following address: _gentlemen of the senate, and of the house of representatives_: in recurring to the internal situation of our country, since i had last the pleasure to address you, i find ample reason for a renewed expression of that gratitude to the ruler of the universe, which a continued series of prosperity, has so often and so justly called forth. to an active external commerce, the protection of a naval force is indispensable: this is manifest with regard to wars in which a state is itself a party. but besides this, it is in our own experience, that the most sincere neutrality is not a sufficient guard against the depredations of nations at war. to secure respect to a neutral flag, requires a naval force, organized and ready to vindicate it from insult or aggression. this may even prevent the necessity of going to war, by discouraging belligerent powers from committing such violations of the rights of the neutral party as may, first or last, leave no other option. from the best information i have been able to obtain, it would seem as if our trade to the mediterranean, without a protecting force, will always be insecure, and our citizens exposed to the calamities from which numbers of them have but just been relieved. these considerations invite the united states to look to the means, and to set about the gradual creation of a navy. the increasing progress of their navigation promises them, at no distant period, the requisite supply of seamen; and their means in other respects favor the undertaking. it is an encouragement likewise that their particular situation will give weight and influence to a moderate naval force in their hands. will it not, then, be advisable to begin, without delay, to provide and lay up the materials for the building and equipping of ships of war, and to proceed in the work by degrees, in proportion as our resources shall render it practicable without inconvenience; so that a future war of europe may not find our commerce in the same unprotected state in which it was found by the present? congress have repeatedly, and not without success, directed their attention to the encouragement of manufactures. the object is of too much consequence not to ensure a continuance of their efforts in every way which shall appear eligible. as a general rule, manufactures on public account are inexpedient. but where the state of things in a country leaves but little hope that certain branches of manufacture will for a great length of time obtain, when these are of a nature essential to the furnishing and equipping of the public force in time of war; are not establishments for procuring them on public account, _to the extent of the ordinary demand for the public service_, recommended by strong considerations of national policy, as an exception to the general rule? ought our country to remain in such cases dependent on foreign supply, precarious, because liable to be interrupted? if the necessary articles should in this mode cost more in time of peace, will not the security and independence thence arising form an ample compensation? establishments of this sort, commensurate only with the calls of the public service in time of peace, will, in time of war, easily be extended in proportion to the exigencies of the government, and may even, perhaps, be made to yield a surplus for the supply of our citizens at large, so as to mitigate the privations from the interruption of their trade. if adopted, the plan ought to exclude all those branches which are already, or likely soon to be established in the country, in order that there may be no danger of interference with pursuits of individual industry. it will not be doubted that with reference either to individual or national welfare, agriculture is of primary importance. in proportion as nations advance in population, and other circumstances of maturity, this truth becomes more apparent, and renders the cultivation of the soil more and more an object of public patronage. institutions for promoting it grow up, supported by the public purse; and to what object can it be dedicated with greater propriety? among the means which have been employed to this end, none have been attended with greater success than the establishment of boards, composed of proper characters, charged with collecting and diffusing information, and enabled by premiums, and small pecuniary aids, to encourage and assist a spirit of discovery and improvement. this species of establishment contributes doubly to the increase of improvement, by stimulating to enterprise and experiment, and by drawing to a common centre the results every where of individual skill and observation, and spreading them thence over the whole nation. experience accordingly has shown that they are very cheap instruments of immense national benefits. i have heretofore proposed to the consideration of congress the expediency of establishing a national university, and also a military academy. the desirableness of both these institutions has so constantly increased with every new view i have taken of the subject, that i cannot omit the opportunity of once for all recalling your attention to them. the assembly to which i address myself is too enlightened not to be fully sensible how much a flourishing state of the arts and sciences contributes to national prosperity and reputation. true it is that our country, much to its honor, contains many seminaries of learning highly respectable and useful; but the funds upon which they rest are too narrow to command the ablest professors in the different departments of liberal knowledge for the institution contemplated, though they would be excellent auxiliaries. amongst the motives to such an institution the assimilation of the principles, opinions, and manners of our countrymen, by the common education of a portion of our youth from every quarter, well deserves attention. the more homogeneous our citizens can be made in these particulars, the greater will be our prospect of permanent union; and a primary object of such a national institution should be the education of our youth in the science of government. in a republic, what species of knowledge can be equally important? and what duty more pressing on its legislature, than to patronize a plan for communicating it to those who are to be the future guardians of the liberties of the country? the institution of a military academy is also recommended by cogent reasons. however pacific the general policy of a nation may be, it ought never to be without an adequate stock of military knowledge for emergencies. the first would impair the energy of its character, and both would hazard its safety, or expose it to greater evils when war could not be avoided: besides, that war might often not depend upon its own choice. in proportion as the observance of pacific maxims might exempt a nation from the necessity of practising the rules of the military art, ought to be its care in preserving and transmitting by proper establishments the knowledge of that art. whatever argument may be drawn from particular examples, superficially viewed, a thorough examination of the subject will evince that the art of war is at once comprehensive and complicated; that it demands much previous study; and that the possession of it, in its most improved and perfect state, is always of great moment to the security of a nation. this, therefore, ought to be a serious care of every government; and for this purpose an academy, where a regular course of instruction is given, is an obvious expedient, which different nations have successfully employed. the compensations to the officers of the united states in various instances, and in none more than in respect to the most important stations, appear to call for legislative revision. the consequences of a defective provision are of serious import to the government. if private wealth is to supply the defect of public retribution, it will greatly contract the sphere within which the selection of character for office is to be made, and will proportionally diminish the probability of a choice of men, able, as well as upright. besides, that it would be repugnant to the vital principles of our government virtually to exclude from public trusts, talents, and virtue, unless accompanied by wealth. while in our external relations some serious inconveniences and embarrassments have been overcome, and others lessened, it is with much pain and deep regret i mention that circumstances of a very unwelcome nature have lately occurred. our trade has suffered, and is suffering, extensive injuries in the west indies, from the cruisers and agents of the french republic; and communications have been received from its minister here which indicate the danger of a further disturbance of our commerce, by its authority, and which are, in other respects, far from agreeable. it has been my constant, sincere, and ardent wish, in conformity with that of our nation, to maintain cordial harmony and a perfectly friendly understanding with that republic. this wish remains unabated; and i shall persevere in the endeavor to fulfil it to the utmost extent of what shall be consistent with a just and indispensable regard to the rights and honor of our country; nor will i easily cease to cherish the expectation that a spirit of justice, candor, and friendship on the part of the republic will eventually ensure success. my solicitude to see the militia of the united states placed on an efficient establishment has been so often and so ardently expressed that i shall but barely recall the subject to your view on the present occasion; at the same time that i shall submit to your inquiry, whether our harbors are yet sufficiently secured. the situation in which i now stand, for the last time, in the midst of the representatives of the people of the united states, naturally recalls the period when the administration of the present form of government commenced; and i cannot omit the occasion to congratulate you and my country on the success of the experiment; nor to repeat my fervent supplications to the supreme ruler of the universe and sovereign arbiter of nations, that his providential care may still be extended to the united states; that the virtue and happiness of the people may be preserved; and that the government which they have instituted for the protection of their liberties may be perpetual. g. washington. united states, _december , _. when the president had concluded his address, he presented copies of it to the president of the senate and the speaker of the house of representatives. the president and the senate then withdrew, and the speaker took the chair. the address was again read by the clerk, and on motion, committed to a committee of the whole house to-morrow. thursday, december . james gillespie, from north carolina, appeared, and took his seat in the house. a new member, to wit, george ege, from pennsylvania, in place of daniel heister, resigned, appeared, produced his credentials, was qualified, and took his seat. _address to the president._ on the motion of mr. w. smith, the house went into a committee of the whole on the president's address, according to the order of the day. the speech was read by the clerk. mr. d. foster moved the following resolution: | "_resolved_, that it is the opinion of this committee, that a respectful address ought to be presented from the house of representatives, to the president of the united states, in answer to his speech to both houses of congress, at the commencement of the session, containing assurances that this house will take into consideration the many important matters recommended to their attention." which was unanimously agreed to, and mr. ames, mr. baldwin, mr. madison, mr. sitgreaves, and mr. w. smith were appointed a committee to draw up the address. the committee rose, and the resolution was adopted by the house. friday, december . david bard, from pennsylvania, josiah parker, from virginia, and nathan bryan, from north carolina, appeared and took their seats in the house. _address to the president._ the speaker said, that it had been usual for the house to come to some order on the president's address, which was to refer it to a committee of the whole on the state of the union. on which mr. williams moved, that it be committed to a committee of the whole on the state of the union, which was done accordingly. mr. bayley moved, that a committee of commerce and manufactures be appointed, when mr. william smith, mr. sewall, mr. coit, mr. parker, mr. blount, and mr. dent, were named for that committee. mr. bayley then moved, that when this house adjourn, it adjourn till monday at eleven o'clock. [the reason stated during the last session for the house not meeting to do business on saturdays was, that the standing committees were numerous, besides many special committees for different purposes, whose business was frequently very important and troublesome, it was therefore necessary that saturday be allowed for the committees to sit, else business would be much protracted, and become too burdensome on gentlemen in committees.] monday, december . several other members, to wit: from new york, edward livingston; from pennsylvania, andrew gregg; from maryland, gabriel christie; from virginia, william b. giles, andrew moore, and john nicholas; and from south carolina, robert goodloe harper, appeared, and took their seats in the house. tuesday, december . two other members, to wit, thomas claiborne and john page, from virginia, appeared and took their seats in the house. a new member, viz: william strudwick, from north carolina, in place of absalom tatom resigned, appeared, produced his credentials, was qualified, and took his seat. _address to the president._ mr. w. smith then moved for the order of the day on the report of the committee in answer to the president's address. mr. giles said, that as the printed copy of the answer was but just laid before the house, he hoped the gentleman would not insist on his motion, as he declared he had not had time to read it; he would therefore move that it be deferred till to-morrow. mr. parker seconded the motion. he said he was not able to judge whether the answer would meet his approbation or not; he wished time to be given for the consideration of it. mr. w. smith said he knew no instance in which the answer to the president's address had been laid over, and he thought it ought to be despatched with all possible speed. mr. heath said, he hoped his colleague would not insist on his motion for letting it lie over till to-morrow; he thought it could as well be acted on to-day. mr. ames observed, that it would look very awkward to let it lie over till to-morrow, as it was very unusual, if not unprecedented, so to do; he thought gentlemen might make up their minds about it if laid on the table about an hour; they could, in the mean time, despatch other business, which would come before them. mr. giles said, he had experienced extreme inconvenience from gentlemen pressing for a subject before it had been matured in the minds of members; he thought it would be extremely improper and unusual, and in its consequences disagreeable, to go into the subject before gentlemen had time to reflect on it. mr. sitgreaves said, that the more expeditious the house were on the answer to the president's address the greater the effect of it would be. he hoped, therefore, that there would be no delay. he had in recollection a message which was received from the president respecting the colors of the french republic, at the last session. those very gentlemen who now wished a delay, then thought that, to let the subject lie over, would lose its principal effect, although several of the members wished it to lie over, and but for one day. surely we have as much respect for the president as we have for the french republic. he really hoped the business would not lie over. mr. w. lyman hoped gentlemen did not look upon this answer to the president's address as merely complimentary. he declared he took it up in a very different light; he viewed it as of the most extensive consequence; it related to the subjects recommended to the notice of the house by the president, which might relate to the alteration of the laws, and, perhaps, to the forming new laws; and could gentlemen have time to form their minds on such an important part of their business? he had only seen the report this morning, and hoped he should have time to consider it before it passed through the house. the speaker said, that the subject before the house now was, whether the unfinished business should be postponed in order to make room for a committee of the whole to sit on the report of the committee on the answer? mr. parker observed, that he could not say whether he approved or disapproved of the answer before the house. he had not read the report; he therefore hoped that the unfinished business would be taken up and this postponed: he thought it was too important to be hastened. he wished gentlemen to be very careful how they committed themselves at a juncture so critical, and on business so momentous. we had just been told by the president that we did not stand well with the french nation; and the senate, in their answer, had accorded with his observations on that subject. [mr. p. was here informed that the business of the senate ought not to be introduced here.[ ]] he therefore hoped a day might be allowed to take the subject into consideration. mr. williams said, he had searched and could find no precedent in the journal to encourage a delay of this business. he found that when a report was made by the committee on such an occasion, it was usual to be taken up by a committee of the whole house; and if gentlemen disagreed on the subject, it should be recommitted to the same committee who formed it, to make such alterations whereby it may meet more general approbation, or be amended by the house and passed. he hoped no new precedent would be made. the speaker again observed, that the question was on postponing the unfinished business to take up this report. mr. w. smith said, that if this business was delayed, it ought to be for substantial reasons. the principal reason gentlemen had urged was, that they had not had time to acquaint themselves with the answer. how, then, he asked, could they make their observations on it as they had done? the committee had, he thought, drafted it in such general terms that it could not be generally disapproved. there are but two parts in which he thought there would be differences of opinion, viz: that which related to the french republic, and that which complimented the president for his services. as to the first, he thought it so expressed as to need no delay in the answer. with respect to the latter, he hoped no gentleman would refuse to pay a due regard to the president's services. the speaker again informed the house what was the question. mr. w. smith said, we ought not now to reflect on any thing we may judge has not been done as we could wish. could we refuse a tribute of respect to a man who had served his country so much? he thought a delay at present would have a very unpleasant appearance. he hoped we should go into this business immediately, agreeably to the former practice of the house on similar occasions. the unfinished business was yesterday postponed for want of proper information, and he thought the same reason was yet in force with respect to it. he hoped nothing would impede this business, lest it should appear like a want of respect in us. he hoped to see a unanimous vote in favor of a respectful answer to the chief magistrate, whose services we ought zealously to acknowledge. mr. gilbert saw no reason to depart from a practice which had been usual; he therefore hoped the report might come under consideration to-day. he thought if it laid on the table an hour or an hour and a half, gentlemen could then be prepared to consider it. the speaker again put the house in mind of the question. mr. nicholas said, if the business was pressed too precipitately, gentlemen may be sensible of their error when it was too late. many bad consequences might attend hastening the subject before it was well matured. he could see no reason why the business should be precipitated upon the house--a proper delay would not show any want of respect to the president, as some gentlemen think. would it be more respectful that an answer should be sent by this house, which, for want of time, had not been sufficiently considered? certainly not. far more so will it appear that after mature deliberation the members are unanimous in their answer. i therefore think the object of respect which the gentleman from north carolina has in view will be completely answered by the delay. gentlemen talk about precedent. i am ashamed to hear them. there may be no precedent on the subject. but are we always to act by precedent? there is scarcely a circumstance occurs in this house but what is different from any that was before it. the president's addresses to this house are always different. they relate to the circumstances of things that are, have been, and may be. then, to talk of precedents where things cannot be alike, is to trammel men down by rules which would be injurious in the issue. the message of the president respecting the french colors had been referred to. if gentlemen were then wrong, is that a reason why they should continue to act wrong? but this circumstance materially differs from that. that was merely an expression of sentiment, which could at once be determined, but this of sentiment, accompanied with deep and solemn reflection--it is so interwoven with the politics of the country as to require great circumspection. i hope gentlemen will not go into it until they are properly prepared. i wish to pay all possible respect to the chief magistrate, and cannot prove it better than by a sincere desire for an unanimous vote to the answer, which is only to be obtained by proper deliberation; and thus let him depart from his office with credit, and the enjoyment of our best wishes in his retirement. the question for postponing the unfinished business to take up this report was then put and negatived-- to . wednesday, december . thomas henderson, from new jersey, and thomas hartley, from pennsylvania, appeared and took their seats in the house. _reporting of the debates._ mr. w. smith moved for the order of the day on the petitions of thomas lloyd and thomas carpenter, whereupon the house resolved itself into a committee of the whole, when, having read the report of the committee to whom it was referred, mr. macon wished some gentleman who was in that committee, would be so good as to inform the house what would be the probable expense, and for what reason the house should go into the business. he thought the expense altogether unnecessary, whatever it may be. if the debates of this house were to be printed, and four or five copies given to each member, they would employ all the mails of the united states. he also adverted to the attempt at the last session to introduce a stenographer into the house, which failed. mr. smith informed the gentleman that mr. lloyd's estimate of the expenses is, that he will supply the house with his reports at the rate of three cents per half sheet. his calculation is that he can supply the members at the expense of about $ , for the session. with respect to the gentleman's reference to last session, this was materially different from that: that motion was to make the person an officer of this house, and at an expense much greater. he thought this attempt would be of great use to the house. regular and accurate information of the debates in the house would be a very desirable thing; he therefore hoped the resolution would prove agreeable to the house. mr. williams said, that the house need not go into unnecessary expense: the members were now furnished, morning and evening, with newspapers, which contained the debates; then why should the house wish for more? if one person in particular has the sale of his debates to this house, will it not destroy the advantages any other can derive from it? we ought not to encourage an undertaking of this kind, but let us encourage any gentleman to come here and take down the debates. last year they were taken down very accurately and dispersed throughout the union. by passing this resolution you will destroy the use of the privilege to any other than the person favored by this house. why give one a privilege more than another? he observed, it had been common to give gentlemen the privilege to come into the house and take down the debates, which had been, last year, delivered time enough to give satisfaction to the members. mr. thatcher said, he should wish for information from the committee how many persons there were to publish debates, as he understood there were several, and the members were to supply themselves from whom they pleased. he should likewise wish for information, how many each member was to have to amount to the value of $ , . mr. w. smith said, there had been petitions received from only two persons--thomas lloyd and thomas carpenter. they intended, each of them, to publish the debates. there might be others; he knew not. there was no intention of giving any one a preference--gentlemen could subscribe for that they approved of most. at the calculation of mr. lloyd the members would have five copies each for the $ , . mr. w. lyman said, the question was, whether the house would incur the expense of $ , to supply the members with copies or not? he thought there was no need of the expense. if the house do not think proper to furnish the members, they can supply themselves. a publication of them is going on at present, and many gentlemen had subscribed to it already. mr. dearborn did not think that $ , thus laid out would be expended to the best possible advantage. from the number of persons which we see here daily taking down debates, he thought we might expect to see a good report of the occurrences in the house. there was a book going about for subscriptions, which appeared to be well encouraged; he saw many of the members' names in it. he thought that, by a plan like that, the reports may be as accurately taken as we may have any reason to expect if the house incurs this expense. mr. nicholas observed, that members were now served with three newspapers. he thought to vote for this resolution on account of obtaining a more full and complete report than was to be had in the newspapers; thus it would supersede the necessity of taking so many papers. he thought this plan more useful to the members, and generally of more advantage to their constituents, as they could disperse those debates where otherwise they would not be seen. mr. thatcher said, if the object of the motion was to supersede the receiving of newspapers, he certainly should vote against it. he did not consider the main reason why members were served with the newspapers was, that they may obtain the debates. no. he thought it more important, in their stations, that they should know the occurrences of the day from the various parts of the united states as well as from foreign nations. though he might favor an undertaking of this kind, yet he would give preference to a newspaper, if they were to have the one without the other. mr. heath did not wish that the members, being furnished with debates agreeably to the motion, should supersede the receiving of newspapers, yet he should vote for it. gentlemen had said the debates were taken more correctly last session than before, yet he had heard a whisper which was going from north to south, that our debates are not represented impartially. he wished the house and the people to be furnished with a true report; such a thing would be very useful: however, he did not wish to encourage a monopoly to those two persons. no. he would wish to give an equal chance to all who choose to come and take them. shall we repress truth? i hope not; but disseminate it as much as possible. last session, when i was, under the act of god's providence, prevented from attending the house, a member sent for a gentleman from virginia, who was to act as stenographer, with whom the house and a printer in this city were to combine. warm debates ensued on the propriety of the measure, and the gentleman returned home after the motion was negatived. i hope gentlemen will not grudge , dollars towards the support of truth. what we see now in the newspapers is taken from the memory, and not by a stenographer. the people will thank you that you have taken means to investigate truth. if any gentleman can point out a better mode to obtain this object, i hope he will do it that it may be adopted; till then i shall support the resolution. mr. sherburne did not think, with the gentleman last up, that the interest of the country was concerned; the only thing they were concerned in was the payment of the money. the printing of this work did not depend on the motion of this house. whether the house adopt it or not, the book will be published. it is a matter of private interest; a speculation in the adventurer, like other publications. the question, he conceived, meant only this: should the members be supplied with these pamphlets at the expense of the public, or should they put their hands in their own pockets and pay for them individually? he thought the house had no greater reasons to supply the members with this work than other publications; they might as well be furnished with the works of _peter porcupine_, or the _rights of man_, at the public expense. mr. w. smith said, the gentleman was mistaken with respect to the work going on, whether supported by the house or not. it was true as it respected the work proposed by mr. carpenter; but, with respect to mr. lloyd, he declared he could not undertake it, except the house would subscribe for five copies for each member. mr. swanwick considered the question to be to this effect: whether the debates be under the sanction of the house or not? a gentleman had said, it will be a great service to the public to have a correct statement of the debates. i think the most likely way to obtain it correctly is to let it rest on the footing of private industry. we have a work, entitled _the senator_, in circulation. i have no doubt but the publisher will find good account in the undertaking. why should the house trouble itself to sanction any particular work? gentlemen would then have enough to do every morning in putting the debates to rights before they were published, as they would be pledged to the accuracy of the reports. i never heard that, in the british house of commons or lords, such a motion was ever made, nor have i ever heard of such in any other country; then why should we give our sanction and incur a responsibility for the accuracy of it. he said he should vote against the motion, but would encourage such a work while it rested on the footing of private adventure. mr. thatcher said, he differed much from the gentleman last up, as it respected the responsibility of the house on such a publication. he thought it might as well be said, that because there had been a resolution for the clerk to furnish the members of this house with three newspapers, the house was responsible for the truth of what those newspapers contained; if it was so, he should erase his name from his supply of them, as he thought, in general, they contained more lies than truth. two considerations might recommend the resolution. it would encourage the undertaking, and also add to the stock of public information: on either of these, he would give it his assent. soon after he came into the city, a paper was handed him with proposals for a publication of this kind (_the senator_). he, with pleasure, subscribed to its support; as to general information, that was given already by newspapers, and though each member was to be supplied with five copies, yet very few would fall into hands where the newspapers did not reach. the work would go forward at any rate. if he thought the work depended on the motion, he should rejoice to give his vote toward its aid. on the question being put, only nineteen gentlemen voted in favor of the resolution; it was therefore negatived. the committee then rose, and the house took up the resolution. mr. thatcher observed, the question was put while he was inattentive: he wished it to lie over till to-morrow. mr. giles wished to indulge the gentleman in his desire. mr. thatcher then moved for the vote of the house, whether the report of the committee of the whole be postponed. twenty-four members only appearing for the postponement, it was negatived. the question was then put, whether the house agreed to the report of the committee of the whole and disagreed with the report of the select committee; which appeared in the affirmative. the motion was therefore lost. _address to the president._ the house again resolved itself into a committee of the whole on the answer to the president's address; when the answer reported by the select committee was read by the clerk, and then in paragraphs by the chairman, which is as follows: sir: the house of representatives have attended to your communication respecting the state of our country, with all the sensibility that the contemplation of the subject and a sense of duty can inspire. we are gratified by the information that measures calculated to ensure a continuance of the friendship of the indians, and to maintain the tranquillity of the _interior_ frontier, have been adopted; and we indulge the hope that these, by impressing the indian tribes with more correct conceptions of the justice, as well as power of the united states, will be attended with success. while we notice, with satisfaction, the steps that you have taken in pursuance of the late treaties with several foreign nations, the liberation of our citizens who were prisoners at algiers is a subject of peculiar felicitation. we shall cheerfully co-operate in any further measures that shall appear, on consideration, to be requisite. we have ever concurred with you in the most sincere and uniform disposition to preserve our neutral relations inviolate; and it is, of course, with anxiety and deep regret we hear that any interruption of our harmony with the french republic has occurred; for we feel with you and with our constituents the cordial and unabated wish to maintain a perfectly friendly understanding with that nation. your endeavors to fulfil that wish, (_and by all honorable means to preserve peace, and to restore that harmony and affection which have heretofore so happily subsisted between the french republic and the united states_,) cannot fail, therefore, to interest our attention. and while we participate in the full reliance you have expressed on the patriotism, self-respect, and fortitude of our countrymen, we cherish the pleasing hope that a _mutual_ spirit of justice and moderation _on the part of the republic_ will ensure the success of your perseverance. the various subjects of your communication will, respectively, meet with the attention that is due to their importance. when we advert to the internal situation of the united states, we deem it equally natural and becoming to compare the tranquil prosperity of the citizens with the period immediately antecedent to the operation of the government, and to contrast it with the calamities in which the state of war still involves several of the european nations, as the reflections deduced from both tend to justify, as well as to excite, a warmer admiration of our free constitution, and to exalt our minds to a more fervent and grateful sense of piety towards almighty god for the beneficence of his providence, by which its administration has been hitherto so remarkably distinguished. and while we entertain a grateful conviction that your wise, firm, and patriotic administration has been signally conducive to the success of the present form of government, we cannot forbear to express the deep sensations of regret with which we contemplate your intended retirement from office. as no other suitable occasion may occur, we cannot suffer the present to pass without attempting to disclose some of the emotions which it cannot fail to awaken. the gratitude and admiration of your countrymen are still drawn to the recollection of those resplendent virtues and talents which were so eminently instrumental to the achievement of the revolution, and of which that glorious event will ever be the memorial. your obedience to the voice of duty and your country, when you quitted reluctantly a second time the retreat you had chosen, and first accepted the presidency, afforded a new proof of the devotedness of your zeal in its service, and an earnest of the patriotism and success which have characterized your administration. as the grateful confidence of the citizens in the virtues of their chief magistrate has essentially contributed to that success, we persuade ourselves that the millions whom we represent participate with us in the anxious solicitude of the present occasion. yet we cannot be unmindful that your moderation and magnanimity, twice displayed by retiring from your exalted stations, afford examples no less rare and instructive to mankind than valuable to a republic. although we are sensible that this event, of itself, completes the lustre of a character already conspicuously unrivalled by the coincidence of virtue, talents, success, and public estimation, yet we conceive that we owe it to you, sir, and still more emphatically to ourselves and to our nation (of the language of whose hearts we presume to think ourselves at this moment the faithful interpreters) to express the sentiments with which it is contemplated. the spectacle of a whole nation, the freest and most enlightened in the world, offering by its representatives the tribute of unfeigned approbation to its first citizen, however novel and interesting it may be, derives all its lustre--a lustre which accident or enthusiasm could not bestow, and which adulation would tarnish--from the transcendent merit of which it is the voluntary testimony. may you long enjoy that liberty which is so dear to you, and to which your name will ever be so dear. may your own virtues and a nation's prayers obtain the happiest sunshine for the decline of your days and the choicest of future blessings. for your country's sake--for the sake of republican liberty--it is our earnest wish that your example may be the guide of your successors; and thus, after being the ornament and safeguard of the present age, become the patrimony of our descendants. mr. venable observed, on a paragraph wherein it speaks of the "tranquillity of the interior frontier," he did not know what was the meaning of the expression: he moved to insert "western frontier" in its stead. mr. ames observed that the words of the report are in the president's speech; however, he thought the amendment a good one. it then passed. in the fourth paragraph are these words: "your endeavors to fulfil that wish cannot fail, therefore, to interest our attention." at the word "wish," mr. giles proposed to insert these words: "and by all honorable means to preserve peace, and restore that harmony and affection which have heretofore so happily subsisted between the french republic and this country;" and strike out the words that follow "wish" in that paragraph. he said, his reasons for moving this amendment were to avoid its consequences. he really wished the report entirely recommitted, as there were many objectionable parts in it. he had been very seriously impressed with the consequences that would result from a war with the french republic. when i reflect, said mr. g., on the calamities of war in general, i shudder at the thought; but, to conceive of the danger of a french war in particular, it cuts me still closer. when i think what many gentlemen in mercantile situations now feel, and the dreadful stop put to commerce, i feel the most sincere desire to cultivate harmony and good understanding. i see redoubled motives to show the world that we are in favor of a preservation of peace and harmony. mr. w. smith said, he should not object to the amendment; but he thought it only an amplification of a sentiment just before expressed. he did not see any advantage in the sentiment as dilated, nor could he see any injury which could accrue from it. he hoped every gentleman in the house wished as sincerely for the preservation of peace as that gentleman did. mr. ames wished to know of the gentleman from virginia, whether he meant to strike out the latter part of this paragraph; if he did, he would object to it. mr. giles said, he did not mean to strike out any more of this paragraph. mr. ames wished it not to be struck out. by the amendment to strike out, we show the dependence we place on the power and protection of the french. while we declare ourselves weak by the act, we lose the recourse to our own patriotism, and fly, acknowledging an offence never committed, to the french for peace. he hoped the gentleman would be candid upon this occasion. mr. giles said, he only wished this house to express their most sincere and unequivocal desire in favor of peace, and not merely to leave it to the president. he said, he had spoken upon this occasion as he always had done on this floor. he always had, and he hoped always should state his opinions upon every subject with plainness and candor. the amendment passed unanimously. mr. giles then proposed an amendment to the latter part of the same paragraph which would make it read thus: "we cherish the pleasing hope that a spirit of mutual justice and moderation will ensure the success of your perseverance." the amendment was to insert the word "mutual." he thought we ought to display a spirit of justice and moderation as well as the french. this amendment, he thought, would soften the expression, and, acting with that spirit of justice and moderation, accomplish a reconciliation. the amendment was adopted. on the chairman's reading the last paragraph except one in the report, which reads thus: "the spectacle of a whole nation, the _freest and most enlightened in the world_," mr. parker moved to strike out the words in italic. although, said he, i wish to believe that we are the freest people, and the most enlightened people in the world, it is enough that we think ourselves so; it is not becoming in us to make the declaration to the world; and if we are not so, it is still worse for us to suppose ourselves what we are not. mr. harper said he had a motion of amendment in his hand which would supersede the necessity of the last made, which, if in order, he would propose: it was to insert words more simple. he thought the more simple, the more agreeable to the public ear. his amendment, he thought, would add to the elegance and conciseness of the expression. he did not disapprove of the address as it now stood, but he thought it might be amended. this, he said, would add to the dignity, as well as to the simplicity of the expression. he thought it would be improper to give too much scope to feeling: amplitude of expression frequently weakens an idea. mr. giles said he saw many objectionable parts in the amendments proposed by the gentleman just sat down. he wished to strike out two paragraphs more than mr. harper had proposed; indeed, he wished the whole to be recommitted, that it might be formed more congenial to the wishes of the house in general, and not less agreeable to the person to be addressed. mr. smith observed, that as the answer had been read by paragraphs nearly to the close, he thought it very much out of order to return to parts so distant. the chairman said that no paragraph on which an amendment had been made could be returned to; but where no amendment had been made, it was quite consistent with order to propose any one gentlemen may think proper. mr. w. smith opposed striking out any paragraph. it was, he said, the last occasion we should have to address that great man, who had done so much service to his country. the warmth of expression in the answer was only an evidence of the gratitude of this house for his character. when we reflect on the glowing language used at the time when he accepted of the office of president, and at his re-election to that office, why, asked he, ought not the language of this house to be as full of respect and gratitude now as then? particularly when we consider the addresses now flowing in from all parts of the country. i object to the manner of gentlemen's amendments as proposed, to strike out all in a mass. if the sentiments were agreeable to the minds of the house, why waste our time to alter mere expressions while the sentiment is preserved? no doubt every gentleman's manner of expression differed, while their general ideas might be the same. he hoped mere form of expression would not cause its recommitment. mr. giles did not object to a respectful and complimentary address being sent to the president, yet he thought we ought not to carry our expressions out of the bounds of moderation; he hoped we should adhere to truth. he objected to some of the expressions in those paragraphs, for which reason he moved to have the paragraphs struck out, in order to be amended by the committee. he wished to act as respectful to the president as any gentleman, but he observed many parts of the address which were objectionable. it is unnatural and unbecoming in us to exult in our superior happiness, light, or wisdom. it is not at all necessary that we should exult in our advantages, and thus reflect on the unhappy situation of nations in their troubles; it is insulting to them. if we are thus happy it is well for us; it is necessary that we should enjoy our happiness, but not boast of it to all the world, and insult their unhappy situation. as to those parts of the address which speak of the wisdom and firmness of the president, he must object to them. on reflection, he could see a want of wisdom and firmness in the administration for the last six years. i may be singular in my ideas, said he, but i believe our administration has been neither wise nor firm. i believe, sir, a want of wisdom and firmness has brought this country into the present alarming situation. if after such a view of the administration, i was to come into this house and show the contrary by a quiet acquiescence, gentlemen would think me a very inconsistent character. if we take a view of our foreign relations, we shall see no reason to exult in the wisdom or firmness of our administration. he thought nothing so much as a want of that wisdom and firmness had brought us to the critical situation in which we now stand. if it had been the will of gentlemen to have been satisfied with placing the president in the highest possible point of respect amongst men, the vote of the house would have been unanimous, but the proposal of such adulation could never expect success. if we take a view into our internal situation, and behold the ruined state of public and private credit, less now than perhaps at any former period however, he never could recollect it so deranged. if we survey this city, what a shameful scene it alone exhibits, owing, as he supposed, to the immense quantity of paper issued. surely this could afford no ground for admiration of the administration that caused it. i must acknowledge, said mr. giles, that i am one of those who do not think so much of the president as some others do. when the president retires from his present station, i wish him to enjoy all possible happiness. i wish him to retire, and that this was the moment of his retirement. he thought the government of the united states could go on very well without him; and he thought he would enjoy more happiness in his retirement than he possibly could in his present situation. what calamities would attend the united states, and how short the duration of its independence, if one man alone can be found to fill that capacity! he thought there were thousands of citizens in the united states able to fill that high office, and he doubted not that many may be found whose talents would enable them to fill it with credit and advantage. although much had been said, and that by many people, about his intended retirement, yet he must acknowledge he felt no uncomfortable sensations about it; he must express his own feelings, he was perfectly easy in prospect of the event. he wished the president as much happiness as any man. he declared he did not regret his retreat; he wished him quietly at his seat at mount vernon; he thought he would enjoy more happiness there than in public life. it will be very extraordinary if gentlemen, whose names in the yeas and nays are found in opposition to certain prominent measures of the administration, should come forward and approve those measures: this we could not expect. he retained an opinion he had always seen reason to support, and no influence under heaven should prevent him expressing his established sentiments; and he thought the same opinions would soon meet general concurrence. he hoped gentlemen would compliment the president privately, as individuals; at the same time, he hoped such adulation would never pervade that house. i must make some observation, said mr. g., on the last paragraph but one, where we call ourselves "the freest and most enlightened nation in the world:" indeed, the whole of that paragraph is objectionable; i disapprove the whole of it. if i am free, if i am happy, if i am enlightened more than others, i wish not to proclaim it on the house top; if we are free, it is not prudent to declare it; if enlightened, it is not our duty in this house to trumpet it to the world; it is no legislative concern. if gentlemen will examine the paragraph, [referring to that contained in the parenthesis,] it seems to prove that the gentleman who drew it up was going into the field of adulation; which would tarnish a private character. i do think this kind of affection the president gains nothing from. the many long addresses we hear of, add nothing to the lustre of his character. in the honor we may attempt to give to others we may hurt ourselves. this may prove a self-destroyer; by relying too much on administration, we may rely too little on our own strength. mr. sitgreaves said, that whatever division of the question gentlemen would propose, was indifferent to him; the words of the answer were perfectly congenial with his wishes, and he was prepared to give his opposition to any of the amendments proposed. on mature deliberation, there was not a sentiment in the report but he highly approved. he could not see any thing unnatural or unbecoming in drawing just comparisons of our situation with that of our neighbors; this is the only way we can form a just view of our own happiness. it is a very necessary way to come to a right knowledge of our own situation by comparing it with that of other nations. he would not reproach another people because they are not so happy as we are; but he thought drawing simple comparisons in the way of the report was no reproach. he was not against bringing the comparison down to private life, as the gentleman from virginia had done; he should think it wrong in a man to exult over his neighbor who was distressed or ignorant, because himself was wealthy or wise. yet he saw no impropriety in his own family of speaking of their happiness and advantages, compared with that of others; it would awaken in them a grateful sense of their superior enjoyments, while it pointed out the faults and follies of others, only in order that those he had the care of may learn to avoid them: thus while our happiness is pointed out, the miseries of nations involved in distress are delineated to serve as beacons for the united states to steer clear of. he did not, with the gentleman from virginia, in any degree, doubt of the wisdom or firmness of the administration of america. in the language of the address, he entertained a very high opinion of it, "a grateful conviction that the wise, firm, and patriotic administration of the president had been signally conducive to the success of the present form of government." such language as this is the only reward which can be given by a grateful people for labors so eminently useful as those of the president had been. this was not his sentiment merely, it was the sentiment of the people of america. every public body were conveying their sentiments of gratitude throughout the whole extent of the union. why then should this house affect a singularity, when our silence on these points would only convey reproach instead of respect. if these sentiments were true, why not express them? but if, on the contrary, what the gentleman asserted, that the administration of the president had been neither wise, firm, nor patriotic, then he would concur with the motion for striking out; but he was not convinced of the truth of this assertion; and while this is not proved, he should vote against the motion. mr. sitgreaves said, he could not agree with the motion of the gentleman from south carolina, (mr. harper,) because his motion was for substituting other words in the place of those in the report, without any reason whatever. if the gentleman, by altering the phraseology, can make the sentiment any better, by all means let it be done: but if the sentiment is not to be changed, why alter it merely to substitute other words? on the whole, mr. s. observed, that he did not see the answer could in any degree be reproached. there are no sentiments in it but what are justifiable on the ground of truth; they are free from adulation. it is such an expression of national regret and gratitude as the circumstance calls for; a regret at the retirement of a faithful and patriotic chief magistrate from office. a regret and gratitude which he believed to be the sentiment of americans. mr. swanwick began by observing that there were points in the address in which all gentlemen seemed to agree, while on other parts they cannot agree. we all agree in our desire to pay the president every possible mark of respect; but we very materially disagree wherein a comparison is drawn between this and foreign nations. if we are happy and other nations are not so, it is but well for us; but he thought it would be much more prudent in us to let other nations discover it, and not make a boast of it ourselves. it is very likely that those nations whom we commiserate may think themselves as happy as we are: they may feel offended to hear of our comparisons. if we refer to the british chancellor of the exchequer in his speeches, he would tell us that is the happiest and most prosperous nation upon earth. how then can we commiserate with it as an unfortunate country? if, again, we look to france, that country which we have pointed out as full of wretchedness and distress, yet we hear them boast of their superiority of light and freedom, and we have reason to believe not without foundation. a gentleman had talked about the flourishing state of our agriculture, and asserted that our late commercial calamities were not proofs of our want of prosperity, which the gentleman compared to specks in the sun. that gentleman speaks as though he lived at a distance. has he heard of no commercial distresses, when violations so unprecedented have of late occurred? one merchant has to look for his property at halifax, another at bermuda, another at cape françoise, another at gonaives, &c.; all agree that they have suffered, and that by the war. these are distresses gentlemen would not like to feel themselves. mr. s. said he had felt for these occurrences. we are not exempt from troubles: probably we may have suffered as much as other nations who are involved in the war. it is a question whether france has been distressed at all by the war. she has collected gold and silver in immense quantities by her conquests, together with the most valuable stores of the productions of the arts; as statues, paintings, and manuscripts of inestimable worth; and at sea has taken far more in value than she has lost: besides, her armies are subsisting on the requisitions her victories obtain. and has england gained nothing by the war? if we hearken to mr. pitt, we may believe they are very great gainers. surely the islands in the west and east indies, ceylon, and the cape of good hope, the key to the east indies, are advantages gained; besides the quantity of shipping taken from our merchants. mr. s. thought if we were to compare, we should find those nations had gained by the war, while we had lost; and of course there was no reason for us to boast of our advantages. mr. w. smith next rose, and observed that gentlemen wished to compliment the president, but took away every point on which encomium could be grounded. one denies the prosperity of the country, another the free and enlightened state of the country, and another refuses the president the epithet of wise and patriotic. mr. giles here rose to explain. if he was meant, he must think the gentleman was wrong in his application. he said he had never harbored a suspicion of the good intentions of the president, nor did he deny his patriotism; but the wisdom and firmness of his administration he had doubted. he thought him a good meaning man, but often misled. mr. smith again rose, and said, he must confess himself at a loss for that refinement to discover between the wisdom and patriotism of the president, and that of his administration. it was moved to strike out this acknowledgment of wisdom and firmness. what were we to substitute as complimentary to him in its place? the first paragraph proposed to be struck out related to our speaking of the tranquillity of this country, compared to nations involved in war. could this give offence, because we feel pleasure in being at peace? it was only congratulating our own constituents on the happiness we enjoy. to appreciate the value of peace, it was necessary to compare it with a state of war. it was the wisdom of this country to keep from war, and other nations hold it up as exemplary in us. the gentleman himself has declared his wish for the preservation of peace; and though he admires it, and nations admire it in us, yet we are not to compare our state with nations involved in the calamities of war, in order to estimate our enjoyments. the words of this address are not a communication to a foreign minister, it is a congratulation to our own chief magistrate of the blessings he, in common with us, enjoys. mr. s. hoped the words would not be struck out. mr. dayton (the speaker), said, that he did not rise to accept the challenge given by the gentleman who spoke last from south carolina, and to point out a nation more free and enlightened than ours; nor did he mean to contest the fact of ours being the freest and most enlightened in the world, as declared in the reported address, but he was nevertheless of opinion that it did not become them to make that declaration, and thus to extol themselves by a comparison with, and at the expense of all others. although those words were in his view objectionable, he was far from assenting to the motion for striking out the seven or eight last clauses of the address. the question of order having been decided, mr. d. said he would remind the committee, that if they wished to retain, or even to amend, any section or sentence of all that was proposed to be struck out, they ought to give their negatives to this motion, as the only means of accomplishing their purpose. it was sufficient, therefore, for those who were opposed to the question for striking out the whole, to show that any part included within it ought to be preserved. not unnecessarily to waste time, by lengthening the debate, he would take the clause first in order, and confine his remarks to that alone. this part of the address had certainly not been read, or had been misunderstood and misrepresented by the member from pennsylvania. mr. ames said, if gentlemen meant to agree to strike out the whole as proposed, in order to adopt those words substituted by the gentleman from south carolina (mr. harper), he must observe that he thought this would be as far from giving satisfaction to others, who, it appeared, wanted no substitute. he, therefore, hoped that kind of influence would not prevail on this occasion. the gentleman who made the motion did it to accommodate matters, and not because he himself objected to the answer reported. it is well known that a committee of five members, opposite in sentiment, was appointed to prepare a respectful address in answer to the president's speech. [here the original instructions were read.] as it was the duty of the committee to prepare a respectful address, it cannot be matter of surprise, although it may of disapprobation with some, that the committee did their duty, and have taken notice of the several matters recommended to the house in that speech. respecting the particular notice they have taken, it might have been thought that some difficulty would occur. he said he need not observe, that the committee had reason to imagine that the form of the report would be agreeable to the house, as they were unanimous; although there had been in the wording some little difference of opinion, yet all agreed substantially in the address, from a conviction of the delicacy of the subject. for that reason, if that only, unless the sentiments in the report of the address should be found inconsistent with truth, he hoped no substitute of a form of words merely would prevail, as it would no longer be that agreed to in the committee, nor could come under their consideration equal to the printed report. he therefore trusted that when the committee came to the question, whether to strike out or not, gentlemen would be guided by no other motive to vote for striking out, than an impropriety in the sentiments through an evident want of truth in them; and if such cannot be discovered, why strike out the expressions? it had been observed by some gentleman, that the cry of foreign influence is in the country. he did not see such a thing exist. he would not be rudely explicit as to the foundation there was for such a cry; but when it was once raised, the people would judge whether it was fact or not. he could not tell how this influence was produced, but the world would draw a view how far we were under foreign influence. mr. a. here alluded to the influence which foreign agents wished to have over the minds of the people of this country, in order to support a factious spirit, probably to the appeal lately made to the people. he also alluded to a circumstance when the imperial envoy, m. palm, in , at london, published a rescript, complaining of the conduct of that court; the spirit of the nation rose, and discord was sown. in consequence of which the parliament petitioned the king to send the envoy out of the country for meddling with the concerns of their nation. that is the nation which we call corrupted. yet a similar affair has occurred here, and it is not to be reprobated; we are not to complain of it, nor even hear it, according to this doctrine. independence is afraid of injuries, and almost of insults. we must forbear to exult in our peace, our light, our freedom, lest we should give offence to other nations who are not so. this may be the high tone of independence in the views of some people, but i must confess it is not so in mine; but it is probable those people may be wiser than i am, and their views extend farther. foreign influence exists, and is disgraceful indeed, when we dare admire our own constitution, nor adore god for giving us to feel its happy effects. he thought, respecting the recent complaints of the french minister, that there was not even a pretext for the accusation. it had been observed by a gentleman, that the president, no doubt, is a very honest man, and a patriot, but he did not think him a wise man. mr. giles here rose to explain. he said that, in his assertions, he meant not to reflect on his private character. he referred to his administration. no doubt but the gentleman possessed both. mr. ames said, he considered well what the gentleman had said. as a private man, his integrity and goodness cannot be doubted; but in his administration--here we are to stop short; not a word about that; it won't bear looking into; it has been neither firm nor wise. if the house, in their address to him, were to say, we think you a very honest, well-designing man, but you have been led astray, sometimes to act treacherously, and even dishonest in your administration--we think you a peaceful man, and though much iniquity may have been practised in your government, yet we think you are not in fault; on the whole, sir, we wish you snugly in virginia. such sentiments as these i do not like. is this an address or an insult? is this the mark of respect we ought to show to the first man in the nation? mr. a. observed, that he did not agree with the gentleman from south carolina (mr. smith), who said, that the president would carry daggers in his heart with him into his retreat from public life, if we refuse him our testimony of gratitude. no, he bears in his breast a testimony of his purity of motive; a conscious rectitude, while in public life, which daggers could not pierce. he would retire with a good conscience; perhaps it would be said this was adulation, but let it be remembered this was truth; this was not flattery; let gentlemen deny this; let them prove that this is not the will of their constituents. the country would judge our opinions when we come to give our yeas or nays; then the real friends of that man would be known. the gentleman wishes him back to virginia, was glad he designed to go; he did not regret his resignation. his name will appear in that opinion. the whole of the president's life would stamp his character. his country, and the admiring world knew it; and history keeps his fame, and will continue to keep it. we may be singular in our opinions of him, but that will not make his character with the world the less illustrious. we now are to accept of his resignation without a tribute of respect. we are not to speak of him as either wise or firm. we can only say he is an honest man: this would scarcely be singular; many a man is honest without any other good qualifications. what circle would gentlemen fix the committee in to amend this address, if they are not to give scope to these sentiments? better appoint no committee at all. if we address the president at all, i hope it will be respectfully, for loth respect is insult in disguise. i hope we shall not alter the original draft of the address, but agree according to our former intentions to present a respectful and cordial address. mr. swanwick rose to explain to those parts of the observations of some gentlemen who had lately spoken (mr. dayton and mr. ames) on that part of the paragraph, which speaks of our gratitude to providence. he should be sorry if such an idea was entertained from any thing he had observed. it was not that part of the paragraph, but the part where we are contrasted with other nations, that he objected to principally. although, he must observe, it was not spoken in a style common to devotion, to tell providence how wise and enlightened we were. it does not boast of our philanthropy, to say how much wiser and better we are than other nations. he thought the gentleman's reference to a clergyman very curious. it would not be right in us to say to god, we thank thee, we are wiser or more enlightened than others! if we are so, let us rejoice in it, and not offend others by our boasting. gentlemen say, we are happier than though we were at war; are we at peace? no: we are involved in the worst of wars. witness our spoliations from algerine, english, and french cruisers, from some of which he himself had suffered materially. the president does not think we are at peace: he recommends a navy as the only efficient security to our commerce. how could that little island (england) command such influence in foreign dominions? it is by her navy. we cannot boast of such power. while we think ourselves much happier and stronger than others, others think us more diminutive; let us not boast. he feared that the revenues of this country would suffer materially through the great stagnation of commerce. he did not think they would be as productive as formerly. he feared it was too generally known, that this was not a time of very great prosperity. as he did not, for one, feel the prosperous situation of the country, he could not consent to violate his feelings by speaking contrary to them. the gentleman from massachusetts (mr. ames) last session, spoke with great eloquence and at great length of the horror of war; which he considered as inevitable if the british treaty (then the subject of debate) was not carried into effect. mr. christie moved for the committee to rise. the house divided on the motion; members appeared against it, only in favor of it. it was lost. mr. giles rose and observed that he should not have troubled the committee with any further observations, but his ideas had been misrepresented; although he endeavored to prevent a possibility of misconstruction, yet it seems he had not been able to accomplish his wish. it was not wonderful, he said, that the president's popularity should be introduced into the debate when it had been so long in question. it had been too commonly done, he thought, but he hoped the influence of it would not be very great. as to the unanimity of the committee who drew up the address, he cared very little about it; he should be extremely sorry to see it have any influence on the members of that house. gentlemen have said, that if we take out the expressions of our sense of the wisdom and firmness of the administration of the president, they cannot find any ground on which to compliment him; if so, he for one would not be willing to present an address at all. but his views were quite different; he thought it could be effectually done without adulation. he could not consent to acknowledge the wisdom and firmness of his administration. gentlemen had inquired for instances in evidence of this assertion. he said, that without seeking for more instances, that of the british treaty was a standing proof in support of the assertion. though many gentlemen believe nothing has been done injurious to the united states through that treaty, yet i acknowledge i see very great danger; we are not now in that state of security which could be wished. it is well known that the operation of the british treaty is the groundwork of all the recent complaints of the french government. it may be said that many of the complaints of the french minister originated from actions previous to the british treaty. it may be so, but that was the means of calling forth complaints which, perhaps, would otherwise never have been made; else why did not this calamity befall us before? it certainly may be ascribed to that instrument. gentlemen may talk as they please about the law of nations; but the law of nations is, that a neutral nation shall not do any thing to benefit one belligerent power to the injury of another. mr. g. said, he thought matters carried a serious aspect, and he very much disapproved of the declaration of a gentleman (mr. ames) who says, now is the time of danger; we are on the eve of a war with france, now let us boldly assert our rights. at the time the british treaty was debating on, that gentleman was overcome with the prospect of a war; he then depicted it in horrible forms; but now how different his language! he now seems not afraid to embrace all its horrors, and was zealously calling out for the nation to support the administration. why did we not hear this when the british spoliated on our commerce! if we are upon the eve of a war with france, as the gentleman supposes, it will be disastrous to this country; we have reason to deplore it; it will be calamitous indeed. france has more power to injure this country than any nation besides, and none we can injure less. what an influence can she command over our commerce? she can exclude us from our own ports; spoil our trade with great britain, and from her own extensive country; she can shut us out from the east indies, as well as the west indies; ruin our trade in the mediterranean, which, owing to the late conquests of the french, may be rendered very flourishing and important to us; and by her alliance, offensive and defensive, with spain, we not only have another enemy, but lose our late advantages in the navigation of the mississippi. suppose, by the influence of her politics, the doctrine of liberty and equality were to be preached on the other side of the alleghany mountains, what numerous enemies may they breed in our own country? france can wound us most, and we have the least reason to provoke her. it would be policy in her to go to war with us; by ruining our trade with england, she could give a violent wound to her enemy; yet that gentleman says, now is the time to assert our rights, now we are in danger. the war-whoop and the hatchet, of which the gentleman spoke so feelingly last session, is no longer in his thoughts. if this was the only reason he had, it would be enough to influence his vote against an acknowledgment of the wisdom and firmness that has dictated our administration. mr. williams rose and said, he was sorry to trouble the committee at such a late hour, but he could not be satisfied with giving a silent vote on an occasion when the president's popularity was doubted. he thought members ought to speak the will of the people they represent. he could assert that it was not merely his own opinion he spoke, but that of his constituents, when he voted for the address as reported. he was sorry to hear the gentleman last up speak in the style he had done, although he owned it was not altogether new to him. the gentleman wished the first clause to be struck out. mr. w. thought it was the duty of every pious man to thank god for the benefits he enjoys. and shall not we, as a nation, thank him for keeping us from a state of war? gentlemen's ideas were to strike the whole out in a mass; but he hoped they would not be gratified. mr. w. said, he was very sorry to hear the gentleman speak against the wisdom and firmness of the president, which assertion seemed to have its foundation in the treaty concluded with great britain. he would ask the gentleman whether that act of ours should have any influence on our situation with france? wherein have we differed from the compact made with france by our treaty made with that country? we surely had a right to treat with great britain, else we could not be an independent nation; and france will not deny this. in , the ambassador of france informed the british court that his nation had entered into a treaty with the united states, and at the same time informed them that great attention had been paid by the contracting parties not to stipulate any exclusive advantage in favor of the french nation, and that there was reserved, on the part of the united states, the liberty of treating with any nation whatsoever upon the same footing of equality and reciprocity. but the gentleman (mr. giles) says, we ought not to give an advantage to an enemy. mr. w. said, that no advantage was given to britain, but, on the contrary, the article complained of must be of advantage to france; it is an encouragement for american vessels to go to their ports; it insures them against loss, if they are interrupted in their voyage. it had been said that it would be to the interest of france to go to war with us; if they consider it so, all that gentleman can say will not prevent it. when we reflect on a treaty entered into on this principle with great britain, should france complain? thursday, december . _address to the president._ the house, according to the order of the day, resolved itself into a committee of the whole on the answer to the president's address, mr. muhlenberg in the chair. the question before the committee was mr. giles' motion for striking out. mr. nicholas said, he sincerely wished that such an answer might be agreed to, as would give a general satisfaction. he hoped some mode would be adopted to unite the wishes of every gentleman; his disposition, he said, led him to vote for the paragraph; he thought himself at liberty so to do, as he was satisfied the administration had been, in many instances, wise and firm. he thought it improper that such debate should take place at the present time. he could see no inconvenience that could arise from voting for the address. the words on which most stress had been laid, were those expressive of the wisdom and firmness of the president's administration. he declared he thought it had much contributed to the success of this country; and if success had attended his measures, there could be nothing inconsistent in their acknowledging it; which was all the compliment necessary to give satisfaction. mr. rutherford.--my colleague has in a great measure anticipated my sentiments on this occasion. i am sorry for the mistaken zeal the gentlemen of the committee should have shown for the president, by introducing expressions into the address so exceptionable, and which should be subject to such an uncomfortable exposure of that character. i was able yesterday only to attend a part of the debate, through indisposition, but what i did stay to hear, hurt me very much. i heard gentlemen speak ill of the common parent of our country, whom we all revere; and was a slip, but one criminal slip, to rob the president of his good name? we have seen the goodness of the heart of that man, and with satisfaction. we have seen him wrestling with his own feelings to continue in the important and weighty business of government; we have seen him contending with two great rival nations, and yet preserved peace. when he had made a slip, the people of america have stepped forward to assist him, and dropped the generous tear, sensible that to err is human, and that we are all liable to do wrong. i am sure that my colleagues and every one in the house hold the character and virtue of that man in high esteem. i am sorry to see that division of sentiment which has taken place; it would make the world believe that we wish to rob him of those qualifications. it is the justice and duty of this house to do that man, that patriot, all the honor they can, whilst it is the interest of this nation to hold in view those great points with generous satisfaction, and good wishes to the man who has stepped forward, and not in vain, to the support of our republic in the war, and under divine assistance was made our deliverer. and now for gentlemen to come here and speak of the troubles of the country, ascribing all our adversity to him, it is like applying cold water where the strongest energy is necessary. again i would repeat, that if that man, our common parent, has committed errors, it is no more than we all may do--it is the general lot of all. if there have been faults in the administration, i do not think they lie at his door, but at his counsellors'; he has had bad counsellors; his advisers are to blame, and not him. i never saw how he could have done otherwise than he did. and now, sir, said mr. r., it is our duty to bear those great actions and generous sentiments in our view, that, on his retirement from his public station, we may render him all the respect due to his character. nor would i less remember our situation with france, that great and generous republic, under whom we owe our liberty. let us not give offence to her, but by every mark of gratitude and respect, act a part consistent with a just sense of our peaceable intention. let us act with the greatest circumspection and deliberation. mr. livingston was sorry the answer was not drafted so as to avoid this debate. he said it was his sincere desire and hope that the candor of gentlemen who advocated the address in its present form, and those who wished it amended, would so combine as to make it agreeable to all. he said he intended to oppose the amendments which had been proposed, although he did not see the address every way right; with a view to reconcile parties, when the present motion was disposed of, he should move to strike out some words, in order to insert others. he could not, like some gentlemen, draw consolation from the misfortunes of other nations; their distresses were rather matter of regret; nor did he see a propriety, as another gentleman had done, of likening our affairs with those of the members of a family; but, even if it would bear, he could not see that tranquillity in this family as was expressed. his only objection, he said, to the paragraph in question, was the words "tranquil prosperity." he believed the united states did not enjoy that tranquil prosperity; on the contrary, he thought this was a time of great calamity in the country, and he thought that it was owing, principally, to the measures of the government. there were other clauses in the address, he said, he should, when they came to be considered, make objections to, and he thought they could be all easily removed by motions suitable; however, he said there were many sentiments in the address in which he heartily concurred. he should vote against the striking out the eight clauses in question, as he thought such amendments could be proposed as would make the address meet his hearty concurrence, and he believed give general satisfaction. mr. giles' motion was then put, to strike out those clauses, and negatived. mr. parker renewed the motion he made yesterday, to strike out the words "freest and most enlightened in the world." mr. ames hoped that the motion to strike out would not prevail; for, without being over tenacious on the subject, he must give a preference to the copy of the report which was printed; the members had the advantage of weighing it in their minds, which they would lose by adopting the substitute; besides, he thought the ideas were so crowded in that proposed, as to render it heavy; he hoped the reported address would be agreed to. mr. harper's motion was then put and negatived. twenty-five members only voting for the motion. mr. parker again moved to strike out "freest and most enlightened," &c. mr. w. smith said yesterday, in the discussion on the subject, gentlemen had assigned for their reason to strike out those words that other nations would be offended at us. it was usual, he said, for nations to applaud themselves, and he thought it could give no offence to any. he did not hear gentlemen mention what nation was meant. he presumed the only nation that could be alluded to was the french republic. if, however, it can be proved that they have used similar language, he supposed it would give gentlemen some ease as to this particular. in looking over some papers, he had seen several bombastical expressions in a note of barthelemy, a report to the convention of laviere, and of cambaceres, in the name of the three committees. in one are these words, "a government so powerful as the french." in another, he calls it "the most enlightened in the civilized world." in another, "the first in the universe." he hoped that while that nation could use expressions like these, the gentlemen of this house would not think the expressions referred to would give offence to that or any other nation. mr. parker said, when he made the motion he did not refer to any particular nation; he had neither france nor england in view; he did not wish to see us contrast our political situation with that of any other country. his objections to the words, he said, arose from our making the declaration ourselves. our government, he acknowledged, was free; it was the best, in his opinion, any where. he wished to believe the people as enlightened as any other; he believed they were, and if they were not, they had only themselves to blame; but however enlightened or free we were, in his opinion, we were not the proper organs to declare it; however enlightened we might be, he thought the last four years administration had convinced many, as well as himself, that the administration was not the most enlightened; if they had, they would not have suffered such shameful spoliations on our commerce, and shameful acts of cruelty to our seamen. he said the two little monarchies of denmark and sweden, neither of which, in point of extent, can be compared with the united states, more (to use the comparison of the gentleman from pennsylvania yesterday) than a speck is to the sun; nor are they either of them in population nearly equal to the united states; and although they are surrounded by the greatest warlike powers in a belligerent state, yet they have preserved their neutrality inviolate; their ships have not been wantonly seized, nor have their seamen been torn from their ships, or whipped at the gang-way of british ships-of-war, or been shot by their press-gangs. to mention the instances of british cruelty towards our seamen in every instance that could be adduced, would take up time unnecessarily; one alone, that recently happened, i shall relate: the brother of a member of this house (mr. franklin, of n. c.) was impressed on board a british ship-of-war in the west indies; he was unacquainted with seamanship, having only made a passage from north carolina to the islands; being awkward and not being a seaman, he was discharged. the same evening, a press-gang of the same ship fell in with him and made him a prisoner; in attempting to make his escape, he was shot at. the ball was aimed at his body; it was not winged with death, but the young man was wounded in the hand. mr. ames said, if any man were to call himself more free and enlightened than his fellows, it would be considered as arrogant self-praise. his very declaration would prove that he wanted sense as well as modesty, but a nation might be called so, by a citizen of that nation, without impropriety; because, in doing so, he bestows no praise of superiority on himself; he may be in fact, and may be sensible that he is less enlightened than the wise of other nations. this sort of national eulogium may, no doubt, be fostered by vanity, and grounded in mistake; it is sometimes just, it is certainly common, and not always either ridiculous or offensive. it did not say that france or england had not been remarkable for enlightened men; their literati are more numerous and distinguished than our own. the character, with respect to this country, he said, was strictly true. our countrymen, almost universally, possess some property and some pretensions of learning--two distinctions so remarkably in their favor, as to vindicate the expression objected to. but go through france, germany, and most countries of europe, and it will be found that, out of fifty millions of people, not more than two or three had any pretensions to knowledge, the rest being, comparatively with americans, ignorant. in france, which contains twenty-five millions of people, only one was calculated to be in any respect enlightened, and, perhaps, under the old system, there was not a greater proportion possessed property; whilst in america, out of four millions of people, scarcely any part of them could be classed upon the same ground with the rabble of europe. that class called vulgar, canaille, rabble, so numerous there, does not exist here as a class, though our towns have many individuals of it. look at the lazzaroni of naples; there are twenty thousand or more houseless people, wretched, and in want! he asked whether, where men wanted every thing, and were in proportion of to , it was possible they could be trusted with power? wanting wisdom and morals, how would they use it? it was, therefore, that the iron-hand of despotism was called in by the few who had any thing, to preserve any kind of control over the many. this evil, as it truly was, and which he did not propose to commend, rendered true liberty hopeless. in america, out of four millions of people, the proportion which cannot read and write, and who, having nothing, are interested in plunder and confusion, and disposed for both, is small. in the southern states, he knew there were people well-informed; he disclaimed all design of invidious comparison; the members from the south would be more capable of doing justice to their constituents, but in the eastern states he was more particularly conversant, and knew the people in them could generally read and write, and were well-informed as to public affairs. in such a country, liberty is likely to be permanent. they are enlightened enough to be free. it is possible to plant it in such a soil, and reasonable to hope that it will take root and flourish long, as we see it does. but can liberty, such as we understand and enjoy, exist in societies where the few only have property, and the many are both ignorant and licentious? mr. christie wished to make an amendment to the paragraph, which he thought would answer the end equally as well as striking it out; if agreeable to the gentleman from virginia, (mr. parker,) he would move to put the word "among" after the word "freest," which would read "the freest and _among_ the most enlightened." he could not say we were the most enlightened, but he did think us the most free; not that he was afraid of offending any nation, but he thought this a more consistent declaration. mr. swanwick said, nobody doubted but we were free and enlightened, but he thought their declaration was no evidence of the truth of it. he thought the last amendment very good, but it would be still better if the gentleman would put the word "among" a little further back, so as to read "among the freest and most enlightened." a pacific disposition could not be proved by any thing so well as treating others with respect as well as ourselves; we may not be exclusively free or enlightened. he hoped it would be thus altered. mr. christie thought we were the freest people in the world; he, therefore, could not agree to the amendment last proposed. mr. coit could not say with the gentleman last up, that we were the freest, but he was very willing to agree with the amendment of a gentleman, that we were among the freest and most enlightened; he thought the first amendment much improved by this; he said it removed great part of the difficulty from the minds of many gentlemen; however, he hoped no unnecessary time would be taken up with such trifles. mr. dayton (the speaker) said, that some of the observations which had been brought into the present debate, were of too delicate a nature to be commented upon or even repeated; he should not, therefore, follow the gentleman who spoke last, in his inquiry, how far this country was exposed to be annoyed by france in the possible, though happily not probable, event of a rupture with france? as to the words "freest and most enlightened," which were more immediately the subject of discussion, he did not object against them on the ground of fact, but he considered the expression as resolving itself into a question of decorum and delicacy, the rules of which appeared to him to be violated, in their ascribing to themselves such a superlative preference, however true, in a comparison with every other people. the amendment of the gentleman from maryland (mr. christie) very much softened the terms and rendered them more palatable. mr. kitchell thought we had given a very good proof that we are not the most enlightened people in the world, by this discussion; and if we declare to the world that we are, that declaration will be a still more glaring proof. it appeared to him quite unnecessary; he thought it spending a great deal of time to no purpose; it was not important enough for that waste of time, when the session was to be so short; he therefore wished the question to be put. mr. sitgreaves agreed that a very useless and improper latitude had been assumed in the discussion, and he thought that a few moments would not be misspent in recalling the attention of the committee to the real question before them. the assertion that we are the freest and most enlightened nation in the world was found fault with, and while some gentlemen moved to strike it out altogether, others proposed to qualify it in different ways. mr. s. believed that, in any modification of the expression, the criticism was, in itself, extremely unimportant; and if, as some gentlemen had treated it, it was a mere question of decorum, he should feel perfectly indifferent whether it was rejected or retained. but when he heard one member deny that we are the most free, and another that we are enlightened; and most especially when he heard that the expression was contended to be improper in relation to the acts and the administration of the government, he confessed it did appear to him to be of some consequence not to part with the expression, lest, by doing so, the house should give countenance to these objections. for his own part, he believed the proposition to be true; he conceived the word "enlightened," as applicable to political illumination; and not to our rank in arts, sciences, or literature; and he considered the sentence as equivalent to an assertion that we enjoy the most enlightened system of political freedom extant. in this view of it, he thought it literally true; and, if true, he could not discern the indecorum of declaring so on the present occasion. he was strongly impressed with the propriety of the idea which he had suggested yesterday, that this should be considered as an act of intercourse purely domestic, an expression of self-gratulation on our superior happiness, which, by the forms of society, ought not to be noticed by any other nation. we may be deemed, without too bold a figure, to be speaking in soliloquy; and to listen to what we say would be no better than eavesdropping: the indecorum would rest with those who overhear us, and not with ourselves. it could not be denied that such a belief of the superiority of our political situation ought to be cherished among us. if we did not believe it, we should take shame to ourselves, because our government is the work of our own hands. if the belief that we are free and enlightened is valuable, the expression of it is also valuable, because it tends to preserve us so; it is a sentiment which we cannot dwell upon too much. but, he contended, the propriety of this or any other expression could not be justly estimated by considering it in the abstract--it ought to be viewed in its application and use. we are about to lose the services of the president, who is admitted on all hands to have been a useful and patriotic officer. the house of representatives are desirous that he should take with him to his honorable retirement the only reward which the nature and spirit of our political institutions admit of--the approbation of his country. it will surely be admitted that we ought to give to the expression of this approbation all the value of which it is susceptible; and it is obvious, from the slightest perusal of this paragraph in the address, that the words in question give to it all its force and energy, and that without them, it would be an unmeaning compliment. the spectacle of a nation, neither free nor enlightened, offering to its first magistrate the tribute of approbation and applause, would neither be "novel nor interesting," since the days of history are stained with numberless instances of prostituted praise and courtly adulation; but when it is the voluntary homage of a free and enlightened people, offered with sincerity to an illustrious fellow-citizen, it is truly a precious reward for patriotic labors. those who object to this expression, therefore, ought to move to strike out the whole paragraph. to reject the words would totally defeat the intended compliment; to qualify them would spoil it. mr. s., therefore, wished to retain them as they were reported. mr. thatcher said, he did not think the object of the present question of much consequence, nor did he care much about it; however, he would wish to see the members more unanimous on the subject; he would, therefore, propose an amendment, which he thought would have some tendency towards it, which was to leave out the superlative, and let the passage read, "the spectacle of a free and enlightened nation." mr. henderson commended the ingenuity of the last motion, as he thought it would more concentrate the ideas of the members. he would vote for it. mr. christie's motion was then put, and negatived. mr. thatcher's motion was put, and passed in the affirmative. mr. livingston then moved to strike out the words from the next paragraph, "wise, firm, and patriotic administration," and insert in their place, "your wisdom, firmness, and patriotism has been." he could not say that all the acts of the administration had been wise and firm; but he would say, that he believed the wisdom, firmness, and patriotism of the president had been signally conducive to the success of the present form of government. he was willing to give him every mark of respect possible, but he believed some of his public acts of late rendered the present motion necessary. mr. w. smith opposed the amendment, as he thought the gentleman who proposed it conceived the words to imply more than was meant by them--they are not meant to include every act of the executive. he thought that the administration in general had been wise, firm, and patriotic; that the wisdom and firmness of the president had been conducive to the success of the present form of government. had not the words been put in the reported address, he thought it would not have been of consequence whether they were ever inserted; but the difference is very great. now they are inserted, they are made public, and, to erase them now, and substitute words in any manner deficient in sentiment to them, would be to carry censure and not respect. that the administration of that valuable man had been wise and conducive to the good of this country, will not admit of a doubt; and for us to rob him of that honor which is his due, would be insult. and any thing short of the words in the address he thought would not carry a proper mark of respect. mr. giles observed, that he thought the administration had been very deficient in wisdom. many gentlemen, he said, were very particularly opposed to the british treaty and to the great emission of transferable paper. could it then be supposed these gentlemen could, in this instance, so change their opinion? the gentleman last up had said, that because the words were in the reported address they ought not to be struck out. he thought that the house had now as much power to act as though the committee had made no report. he thought they ought not in any way to be influenced by the report of the select committee, but act as though they had to form the address themselves. he believed that the president possessed both wisdom and firmness. he was willing to compliment the president as much as possible in his personal character, but he could not think it applicable to his administration. he thought the amendment proposed would meet his concurrence, and he hoped it would be agreed to. mr. gilbert hoped and presumed that the motion of his colleague would not obtain. he understood that the house addressed the president in answer to his speech, always as a public man, and not in his private capacity. how extraordinary, then, will it appear in this house to refer only to his private conduct! it is, in substance, complimenting him as a private man, while the very words reprobate him in his public station. we are now to address him as president of the united states. we may tell him of his wisdom and his firmness, but what of all that unless we connect it with his administration? mr. isaac smith.--the sin of ingratitude is worse than the sin of witchcraft; and we shall damn ourselves to everlasting fame if we withhold the mighty tribute due to the excellent man whom we pretend to address. posterity, throughout all future generations, will cry out shame on us. our sons will blush that their fathers were his foes. if excess were possible on this occasion, it would be a glorious fault, and worth a dozen of little, sneaking, frigid virtues. i abhor a grudging bankrupt payment, where the debtor is much more benefited than the creditor. the gentleman from virginia misrepresents his own constituents--i am sure he does all the rest of the union. on the present occasion we ought not to consult our own little feelings and sensibilities. we should speak with the heart and in the voice of millions, and then we should speak warm and loud. what! "damn with faint praise:" and suppress or freeze the warm, energetic, grateful sensations of almost every honest heart from maine to tennessee! i will not do it! every line shall burn! this is a left-handed way of adoring the people. mr. dayton (the speaker) said, the motion then before them was of great importance, and every man who thought favorably of the president's administration should there make a stand. for, if the words were struck out, it would convey an idea to the world that it was the opinion of that house that the administration of the president had neither been wise nor patriotic. gentlemen might very well concur in the address in its present form, who did not think that every single act of the president had been wise and firm, since it was his administration in general which was referred to, and not each individual act. he hoped, therefore, the amendment offered would be decidedly opposed, and that the words proposed to be struck out would be retained. mr. gallatin thought the words objected to were conceived to mean more than they really did mean by gentlemen who supported the present motion; nor could he conceive how the words "firmness and patriotism," proposed to be inserted, could apply to any thing but the public character of the president. on the first view of the address, mr. g. said, he thought with the gentlemen from new york and virginia, and it was not without considerable hesitation that he brought himself to agree to this part of the address. he found, however, on further examination, that they did not go so far as he at first thought they did. had they approved of every measure of the president of the united states, he should have voted against them. but, in the first place, he would observe, that his administration did not include legislative acts; so that whatever evils had arisen from the funding or banking systems were not to be charged to the president. they did not mean to pay compliments to themselves but to the president: therefore, the words in question related only to the administration of the president alone, and not to those officers of state which had been supposed by some gentlemen. the first question was, then, whether that administration had been marked with wisdom, firmness, and patriotism? and, he would briefly say, so far as related to the internal situation of the country, it had borne these marks. he did not recollect any instance where he could say here was any want of wisdom, or there of firmness or patriotism. if they proceeded to foreign affairs, a great number of members were found (he for one) who wished that certain acts had not taken place; and, if he thought, in giving approbation to this address, he was approving of these measures, he would certainly vote against it. but, as the gentlemen from south carolina and new jersey (mr. smith and the speaker) had observed, as the approbation went to the administration in toto, it had respect to no particular act. nor did he believe the literal sense of the words would apply to the business of the late treaty. [he read the words.] the most clear meaning of these words related to the present government and constitution; and the word "success" could apply to those parts of the administration only which had had time to be matured. he did not believe that at the present period it could be said that the treaty with great britain had been successful, and, therefore, could not be included within the meaning of the expression. not meaning to pledge an approbation of that act, and not conceiving that the sentence could have such a meaning, he would vote against the proposed amendment, and for the original. the question was put on the amendment and negatived. the committee then rose, reported the address with the amendments, when the house took them up, and having gone through them-- on the question being about to be put on the answer as amended, mr. blount wished the yeas and nays might be taken, that posterity might see that he did not consent to the address. the main question being put, it was resolved in the affirmative--yeas , nays , as follows: yeas.--fisher ames, theodorus bailey, abraham baldwin, david bard, theophilus bradbury, nathan bryan, gabriel christie, thomas claiborne, john clopton, joshua coit, william cooper, william craik, james davenport, henry dearborn, george dent, george ege, abiel foster, dwight foster, jesse franklin, nathaniel freeman, jr., albert gallatin, ezekiel gilbert, james gillespie, nicholas gilman, henry glenn, chauncey goodrich, andrew gregg, roger griswold, william b. grove, robert goodloe harper, carter b. harrison, thomas hartley, jonathan n. havens, john heath, thomas henderson, william hindman, george jackson, aaron kitchell, samuel lyman, james madison, francis malbone, andrew moore, frederick a. muhlenberg, john nicholas, john page, josiah parker, john patton, john read, john richards, samuel sewall, john s. sherburne, samuel sitgreaves, nathaniel smith, israel smith, isaac smith, william smith, richard sprigg, jr., william strudwick, john swanwick, zephaniah swift, george thatcher, mark thompson, john e. van allen, philip van cortlandt, joseph b. varnum, peleg wadsworth, and john williams. nays.--thomas blount, isaac coles, william b. giles, christopher greenup, james holland, andrew jackson, edward livingston, matthew locke, william lyman, samuel maclay, nathaniel macon, and abraham venable. _resolved_, that the speaker, attended by the house, do present the said address; and that mr. ames, mr. madison, and mr. sitgreaves, be a committee to wait on the president to know when and where it will be convenient for him to receive the same. friday, december . mr. ames, from the committee appointed to wait on the president to know when and where he would receive the answer of this house to his address, reported that he had appointed to receive it at his house this day at two o'clock. _address to the president._ the speaker informed the house that the hour was nearly at hand, which the president had appointed for receiving the address of the house, in answer to his speech. the members, in a body, accordingly waited upon the president, at his house; and the speaker pronounced the following address: "sir: the house of representatives have attended to your communication respecting the state of our country, with all the sensibility that the contemplation of the subject and a sense of duty can inspire. "we are gratified by the information, that measures calculated to ensure a continuance of the friendship of the indians, and to maintain the tranquillity of the western frontier, have been adopted; and we indulge the hope that these, by impressing the indian tribes with more correct conceptions of the justice, as well as power of the united states, will be attended with success. "while we notice, with satisfaction, the steps that you have taken, in pursuance of the late treaties with several foreign nations, the liberation of our citizens, who were prisoners at algiers, is a subject of peculiar felicitation. we shall cheerfully co-operate in any further measures that shall appear, on consideration, to be requisite. "we have ever concurred with you in the most sincere and uniform disposition to preserve our neutral relations inviolate; and it is, of course, with anxiety and deep regret we hear that any interruption of our harmony with the french republic has occurred; for we feel with you, and with our constituents, the cordial and unabated wish to maintain a perfectly friendly understanding with that nation. your endeavors to fulfil that wish, and by all honorable means to preserve peace and to restore that harmony and affection, which have heretofore so happily subsisted between the french republic and the united states, cannot fail, therefore, to interest our attention. and while we participate in the full reliance you have expressed on the patriotism, self-respect, and fortitude of our countrymen, we cherish the pleasing hope that a mutual spirit of justice and moderation will ensure the success of your perseverance. "the various subjects of your communication will, respectively, meet with the attention that is due to their importance. "when we advert to the internal situation of the united states, we deem it equally natural and becoming to compare the present period with that immediately antecedent to the operation of the government, and to contrast it with the calamities in which the state of war still involves several of the european nations, as the reflections deduced from both tend to justify as well as to excite a warmer admiration of our free constitution, and to exalt our minds to a more fervent and grateful sense of piety towards almighty god for the beneficence of his providence, by which its administration has been hitherto so remarkably distinguished. "and while we entertain a grateful conviction that your wise, firm, and patriotic administration has been signally conducive to the success of the present form of government, we cannot forbear to express the deep sensations of regret with which we contemplate your intended retirement from office. "as no other suitable occasion may occur, we cannot suffer the present to pass without attempting to disclose some of the emotions which it cannot fail to awaken. "the gratitude and admiration of your countrymen are still drawn to the recollection of those resplendent virtues and talents which were so eminently instrumental to the achievement of the revolution, and of which that glorious event will ever be the memorial. your obedience to the voice of duty and your country, when you quitted reluctantly, a second time, the retreat you had chosen, and first accepted the presidency, afforded a new proof of the devotedness of your zeal in its service, and an earnest of the patriotism and success which have characterized your administration. as the grateful confidence of the citizens in the virtues of their chief magistrate has essentially contributed to that success, we persuade ourselves that the millions whom we represent, participate with us in the anxious solicitude of the present occasion. "yet we cannot be unmindful that your moderation and magnanimity, twice displayed by retiring from your exalted stations, afford examples no less rare and instructive to mankind, than valuable to a republic. "although we are sensible that this event, of itself, completes the lustre of a character already conspicuously unrivalled by the coincidence of virtue, talents, success, and public estimation; yet we conceive we owe it to you, sir, and still more emphatically to ourselves and to our nation, (of the language of whose hearts we presume to think ourselves at this moment the faithful interpreters,) to express the sentiments with which it is contemplated. "the spectacle of a free and enlightened nation offering, by its representatives, the tribute of unfeigned approbation to its first citizen, however novel and interesting it may be, derives all its lustre (a lustre which accident or enthusiasm could not bestow, and which adulation would tarnish) from the transcendent merit of which it is the voluntary testimony. "may you long enjoy that liberty which is so dear to you, and to which your name will ever be so dear; may your own virtues and a nation's prayers obtain the happiest sunshine for the decline of your days and the choicest of future blessings. for our country's sake, for the sake of republican liberty, it is our earnest wish that your example may be the guide of your successors; and thus, after being the ornament and safeguard of the present age, become the patrimony of our descendants." to which the president made the following reply: "gentlemen: to a citizen whose views were unambitious, who preferred the shade and tranquillity of private life, to the splendor and solicitude of elevated stations, and whom the voice of duty and his country could alone have drawn from his chosen retreat, no reward for his public services can be so grateful as public approbation, accompanied by a consciousness that to render those services useful to that country has been his single aim: and when this approbation is expressed by the representatives of a free and enlighted nation, the reward will admit of no addition. receive, gentlemen, my sincere and affectionate thanks for this signal testimony that my services have been acceptable and useful to my country. the strong confidence of my fellow-citizens, while it animated all my actions, ensured their zealous co-operation, which rendered those services successful. the virtue and wisdom of my successors, joined with the patriotism and intelligence of the citizens who compose the other branches of government, i firmly trust, will lead them to the adoption of measures which, by the beneficence of providence, will give stability to our system of government, add to its success, and secure to ourselves and to posterity that liberty which is to all of us so dear. "while i acknowledge, with pleasure, the sincere and uniform disposition of the house of representatives to preserve our neutral relations inviolate, and, with them, deeply regret any degree of interruption of our good understanding with the french republic, i beg you, gentlemen, to rest assured that my endeavors will be earnest and unceasing, by all honorable means, to preserve peace, and to restore that harmony and affection which have heretofore so happily subsisted between our two nations; and with you, i cherish the pleasing hope that a mutual spirit of justice and moderation will crown those endeavors with success. "i shall cheerfully concur in the beneficial measures which your deliberations shall mature on the various subjects demanding your attention. and while directing your labors to advance the real interests of our country, you receive its blessings; with perfect sincerity my individual wishes will be offered for your present and future felicity. "g. washington." the members then returned to the house, and having resumed their places, the speaker presented a copy of the president's answer to the clerk; which he read. monday, december . john hathorn, from new york, and john milledge, from georgia, appeared and took their seats. a new member, to wit, elisha r. potter, from rhode island, in the place of benjamin bourne, resigned, appeared, produced his credentials, was qualified, and took his seat in the house. monday, december . _national university._ mr. harper moved the order of the day, for the house to go into a committee on the establishment of a national university. the house accordingly formed itself into a committee--mr. coit in the chair. when the report was read, mr. macon said there was the word "appropriation" in the report. he did not recollect any having been made for that purpose. he wished to know what was meant? mr. craik said, authority was given for the president to appropriate about twenty acres of land for the erection of this building; this he supposed to be what was meant. mr. nicholas said, that some time or other the institution of a seminary in this district may be of use, but at present, and in the manner contemplated in this report, it would not do. if carried into effect thus, it will sometime need an appropriation. we are now, said mr. n., going into the subject, but we know not to what lengths it may carry us; we do not know where it will end. he did not think the time had arrived to incorporate a company for building a national university. it would be taking money from those districts of country which can do for themselves, and would receive no benefit from this institution. it would be inconvenient and inconsistent for people living at a considerable distance to send their children to this university; besides, he thought, the further children are from home, by being less under the eye of their parents, the more their morals would be injured. if it be a national university, it must be for the use of the nation. it will then be necessary to open funds for the purpose of its support. it is recommended by the president, it is true; but this is no argument why we should precipitate the business: it is the last time he will have an opportunity to address this house, and it being an object he should like to see encouraged when it was practicable, he took that opportunity to express it. we are not now in a situation to forward its establishment. it may be done at some time, but mr. n. thought it would be many years first. that district of country would be many years before it could encourage the hope of such a plan prospering. he thought gentlemen from other parts of the union would not say they wanted it for their youth. he thought if the house once entered into the subject, the responsibility would fall on it to keep up the institution. mr. harper said, it did not appear to him that the gentleman last up had attended sufficiently to this report, for he seemed to be much mistaken as to its principle. there was nothing in it that contemplated pledging the united states to find funds for its support; nor was it the object of the report to establish a national university. he agreed with the gentleman, that we were not arrived at a period for such an institution. but gentlemen would see that the object of the commissioners was not to establish a national university or obtain money from the united states, but their direct object was, to be incorporated, so as to be enabled to receive such legacies and donations as may be presented to the institution, and hold it in trust for that purpose. the president had already given nineteen acres of land, and signified his intention to give fifty shares in the potomac canal whenever there was proper authority to receive endowments. it appears that there is no authority at present. the memorial goes no further than to authorize them to receive such benefactions as may be made, and hold them in trust. how far, then, this went towards involving this house in its support, he should leave the good sense of gentlemen to judge. mr. h. thought the amount of this memorial could not have any evil tendency, but it may have a good one; for which reason he hoped it would be agreed to. mr. baldwin did not know any thing, according to his present views, which could be injurious in the report. at present it seemed favorable to him. he had two principal ideas in his mind, which made it appear so; if neither of which was cleared up otherwise, he should vote for it. the first thing he should ask was, is such a thing desirable? and then, is there a seminary so near the spot contemplated, as to make it hostile in this house to encourage this university? he believed there was none that this will injure, but that an establishment like this would be very agreeable in that district. if it was desirable, who could undertake it, who encourage it, like this house? they could not do it themselves. if, then, the step is a proper one, it can never be too soon to commence it, although it may be many years before it may be wanted. the objection may be, that it would be wrong to incorporate a literary society; but we have frequent instances of incorporation, and nothing can prove it improper, since no pecuniary aid is required, no grant of money is asked. if it was, i should, like the gentleman before me, (mr. nicholas,) disapprove of it, but not now seeing reason to object, i shall vote for the report. mr. craik.--after the caution the committee had observed in forming their report, to prevent objections, i am sorry they should be charged with things they do not in the least merit. if the report contemplated the raising a fund for the support of this institution from the united states, there might have been some ground for gentlemen's objections; but, as there is not the most distant view of such a thing, i am surprised to hear it objected to. i did not expect it from that gentleman, (mr. nicholas.) i did not expect to hear him say, that institutions of this kind were not wanted there; it might have come better from gentlemen residing in more distant parts of the united states. if this subject was now before the house, sir, i should not be against proving, at this time, that it is the duty of the united states to establish a university, and that the sooner it was done the better. but, as this is not the case, as we are only asked to permit its encouragement, by allowing these people to receive benefactions, how can we refuse? shall we shut the door against individual benevolence? there are appropriations already made to this institution. there is a fund now of fifty shares in the canal, which is now valuable and increasing in value daily. i think the situation for this purpose very good; and the probable increase of the city of washington will induce many persons to benevolence for this purpose. i know of no situation more central, and believe there is no place of the kind in its neighborhood; and from an established knowledge it would be a very useful and desirable institution, shall vote for it. mr. w. lyman.--as far as i can understand, the land which is now to be appropriated for this university is the property of the united states. does not this look as though the united states are to patronize and support the establishment? if we take this step, i shall very much wonder if our next is not to be called upon to produce money. i do not expect much from the liberality of individuals; and can it be expected that people from the remote parts of the united states will send their children to this seminary? surely not; and consequently their money will be lost. it will be a natural source of discontent to them to pay their money merely for others to obtain the advantage. it may be very good for people thereabout, but remote parts cannot derive the least advantage from the institution. we are going quite too fast into this business, without attending to probable consequences. i think it would have been more proper, if these people had only wanted this power, for them to have applied to the state legislature of maryland; it would be more to their interest and duty to encourage a seminary if one is wanted in that place. they have sufficient power vested in them to encourage all such laudable undertakings. for us to encourage this would be to do injury, instead of having a number of schools planted in various parts, they are now all to centre in one; and the people are to neglect all to support this one; as others would become very weak. i flatter myself to have as liberal sentiments on such institutions as other gentlemen, but i do sincerely think small academies are as useful as this institution for a university. the large institutions are generally out of the reach of people in general, and of the middling class in particular. these small academies have produced many eminent literary characters in the country. if it should be necessary at any time to form a seminary for the use of that district, congress would not refuse its encouragement; but to draw money for a national university i hope they never will agree. but gentlemen say this is not asked; true it is not at this time, but there is that in the principle that will most certainly lead to it. mr. dayton (the speaker) said, if it should ever be the policy of the united states to establish a national university, he was of opinion this was an improper time for making the decision. he did not believe the committee who made the report meant to do more than had been stated; but the effect, he said, would be what he predicted; this measure would be looked upon as an entering wedge, and they should hereafter be told they must go through with it. if gentlemen were prepared to sanction an institution of this kind they would of course do it; he was not prepared to vote for the measure, but should give it his negative. mr. nicholas said he had not been convinced by the observations of gentlemen who had spoken in favor of this report that all the mischiefs would not follow this measure which he before predicted. he inquired into the purpose of establishing a national university. the president had said (and the commissioners after him) it was to establish a uniformity of principles and manners throughout the union. this, he believed, could not be effected by any institution. if, said he, you incorporate men to build a university, are you not pledging yourselves to make up any deficiency? and, as the building must be commensurate with the object, they would have an enormous empty house continually calling upon them for contributions to its support. whatever moderation had been observed in framing this report, mr. n. said it was like many others which came before them: it was so covered as not to show half the mischiefs which would attend it. if a plan of education was wanted for that district, let members from that part of the country say so, and he would be ready to afford them every necessary assistance; but he would not think of going into the scheme of a national university. the district of country from whence it came might stand in great need of seminaries of learning, as had been hinted by the gentleman from maryland, (mr. craik,) but their ignorance must continue until they were sensible of their want of instruction. he believed there was no federal quality in knowledge, and no federal aid was necessary to the spreading of it. every district of country was competent to provide for the education of its own citizens, and he should not give his countenance to the national plan proposed, because the expense would be enormous, and because he did not think it would be attended with any good effect, but with much evil. if a university is wanted for the use of that district, or any other part, mr. n. said he would give it all the encouragement possible, but he could not agree to go to such great lengths--lengths which were not yet explored. mr. r. sprigg considered the report before them as of a very harmless nature. the president, he said, had appropriated land upon which to erect the university in question. they were not called upon to sanction that appropriation. his power to give it was full and ample. the thing was done, and he had promised a future donation. the apprehensions of the gentleman from virginia (mr. nicholas) seemed to arise from his conceiving they were about to sanction a national university, such as had been recommended by the president. if this were the case, although the representative of that district, he should not give his vote in support of the measure. on the contrary, he said, they were called upon merely to authorize proper persons to receive donations for a university. what sort of institution this should be, would be for the future consideration of congress. mr. s. said he should always be ready to give his support to every measure which had a tendency to spread knowledge throughout the united states, as he believed the progress of knowledge and liberty would accompany each other. the gentleman from virginia seemed to think this institution would only benefit a small circle. he did not think the state of maryland would be much benefited by it, as they had already two good universities; but he thought it doing no more than justice to the owners of property in the federal city that this institution should be encouraged. what was asked of them would not commit them at all for any thing further, and it would be a mean of turning the attention of the people to the support of an institution of this kind. for these reasons, he hoped the house would agree to the report. mr. livingston said he had thought, like the gentleman last up, that there was nothing in it but what was perfectly harmless, until, recurring to the law for establishing the permanent seat of government, that something more might be intended than the eye could at first discover. mr. l. said, he turned the thing a variety of ways in his mind, and could not account for some of its obscurities. if nothing was intended but a mere incorporation, why not apply to the state that could incorporate such a body? something further seemed to be intended: public patronage was wanted to support this institution. they were called upon, at a moment's notice, to give their encouragement to this national institution. it is true, they were called upon from very respectable authority. they were not called upon to appropriate the public funds to this purpose; but how far the commissioners are justifiable in laying out public lands for that purpose, he knew not. he had not the law itself at hand, but he was doubtful about the just disposal of it, if in this manner. this land was for public use. the use of this land was to erect buildings on for the benefit of congress; and if these commissioners had power to appropriate it for building a national university on, they had the same power to give it or make use of it for any other purpose. such institutions are not public, but private concerns. this, said mr. l., i view as the effects of the resolution, were it to be adopted; but i would not be thought as in the least reflecting on the motives of the gentleman who brought it forward. i believe it will operate (as a gentleman has justly said) as an "entering-wedge;" and at some future time we shall be told, we must go on--now we have encouraged its institution, we must support it. we shall hear more about it at a future day. gentlemen tell you, sir, that nothing is intended, but merely to permit its institution. why cannot they obtain this power which is asked of us of the state where it is wanted? the laws there will permit it, and, most likely, it could be obtained. if this report is agreed to, the time will arrive when this institution will pretend to a just claim on this house for its support; and the reasons they will then urge will have a force which will not be easily repelled. mr. madison said he was very far from considering, with some gentlemen, that this is a question of right or policy. these ideas are not comprehended in the present question. it is not whether congress ought to interpose in behalf of this institution or not; it is whether congress will encourage an establishment which is to be supported entirely independent of them. he did not consider it would ask a single farthing from us, nor that it would pledge congress to endow the establishment with any support. the state of virginia thought proper, during the war, to present the president with fifty shares in the potomac canal, in consideration of his services, which he refused accepting for his own use. he has now offered to give it to this seminary.[ ] some other individuals have likewise destined part of their land for its support, and other benefactions may be expected. the amount of this motion before the committee is whether we will grant power and security to persons to receive such donations in trust for the institution? he conceived it only in this simple point of view, and he thought if it was worthy of patronage, it ought to be from the united states. the gentleman from new york (mr. livingston) seems to say it is not necessary for congress to interpose, as the laws of maryland allow that legislature power to do it, and they are the most proper. congress has the sole jurisdiction over that district: it is not with the power of that legislature. their power in that district could only operate by virtue of a grant from the united states; although it is necessary, until that district becomes the permanent seat of government, the laws of maryland should be in force there. this being the situation, the commissioners applied to congress to give them the power to receive benefactions. another thing which gentlemen had objected to, is its being called a national university. the report does not call it so; it calls it "a university in the district of columbia;" which, he thought, was materially different. congress may form regulations for institutions which may be very good, and yet, not be viewed as national institutions. it was in this qualified light (for he wished not to consider it a burden on the nation) he meant to vote for the report. mr. spriggs said it had been inquired why the legislature of maryland could not have granted the commissioners what they now pray for? he answered that they could make no law for that district which should extend beyond the time at which the seat of government was to be removed there. he mentioned some instances that had taken place while he was a member of that legislature. this, he said, accounted for the application of the commissioners to congress. on motion, the committee rose, and had leave to sit again. tuesday, december . dempsey burges, from north carolina, appeared, and took his seat. _national university._ the order of the day was called for on the report of the committee to whom was referred the memorial of the commissioners of the federal city, and that part of the president's speech, which referred to the establishment of a national university. the house accordingly resolved itself into a committee of the whole on that subject, when the resolution, reported by the select committee, having been read, no gentleman rising on the subject, the chairman inquired if the committee were ready for the question, and on being answered in the affirmative, the question was put and negatived by a great majority. the committee rose, and the chairman reported their disagreement with the select committee. the house then took up the subject. mr. murray rose, expressing his great surprise at the unexpected decision on the question in the committee. he was very much surprised to see the committee so changed, no opposition, and yet the report so quickly negatived; surely gentlemen must have mistaken the question. it is matter of regret such an important subject should have so little consideration. the language of the report is perfectly moderate and just. the gentleman from virginia, yesterday, gave us to understand that this institution was to draw its support from the national treasury; but on examining the report i can find no such idea held out or intended; and also he told us this was a national university. the gentleman's observations are grounded in mistake, or it was effected by an imagination of evils, of which there could not be the most distant apprehension. if we refer to the memorial of the commissioners we shall see they ask no money from congress; they only ask you to erect a number of gentlemen into a corporate capacity to enable them to receive donations from those who are well disposed towards instituting a useful seminary in that district; this is no more than they have a right to expect from congress, and is the duty of congress to grant. yet the determination of the committee of the whole house has been carried against this very desirable and reasonable request. i would again repeat that the language of the memorial is only to enable them to support a seminary of learning in that place, and not a single shilling is asked from the nation. they only want a medium to act upon--an act of incorporation. the president has generously signified his intention to make a valuable benefaction, not less than £ sterling, and the wise and good in all parts of the united states would probably follow his example, particularly in that neighborhood, if congress would put them in a way to receive it; a building would then be begun and some advances made towards the execution of the institution, in proportion to the fund. instead of allowing this to be the case, every possible view has been given unfavorable to the plan, and every possible supposition formed, though without grounds, which could tend to blast it. the ideas of gentlemen have been inferred that a large empty house would arise;--that it would draw from the united states funds for its support. it may be possible, but it is no way probable. is it not more probable that these gentlemen, knowing they cannot expect national support, will keep themselves within the bounds of their funds, if they mean to carry on the institution? certainly this seems most consistent with the wisdom and prudence of men in that capacity. nothing is asked of the public in the report of the select committee:--nothing they have a right to ask. i therefore hope, as the request is perfectly reasonable, gentlemen will not be too hasty to oppose such a measure without due consideration. mr. craik.--i must confess i feel as much surprised as my colleague on the decision which has just been given in the committee of the whole. some gentlemen who opposed the report yesterday conceived there was some secret poison lurking within it--some dangerous principle not to be discovered on its face, which would some time produce baneful influences--this has been insinuated though not directly said. if so it must come there by accident, or of itself, which those gentlemen must allow if they will give themselves the trouble to examine the true principle of it, and give it a just decision. when we examine the materials of which this report has been formed, viz: the president's communication on this subject in his speech, and the memorial of the commissioners;--we should be led by those gentlemen to believe, that this, which is the groundwork of the report, is connected to convey something which may extend further than it seems to carry its object; this perhaps is the secret poison hinted at. were i in the situation of the president, i am free to confess, had i studied my own feelings and the great use of the institution, i should have recommended it. it has been justly said, that the president, from the impulsive importance of it, has taken this opportunity--this last opportunity to recommend it. he has recommended it with earnestness; which gives an additional proof of his sincere regard for the welfare of his country. i hope this will not be conceived in favor of the idea suggested. the commissioners seemed to have anticipated the objections which have been made to a national university, and have purposely avoided inserting it in their memorial. they have cherished similar ideas which i have, of the eligibility of such an institution, but foreseeing that plan would not be approved, they have relinquished that, and only requested incorporation to enable them to act in trust for the institution. they do not call upon this house to put their hand into the public treasury; they seem to have possessed somewhat of the prophetic, to see the necessity of forming their memorial so little objectionable; and yet there is supposed to be danger in this simple request. gentlemen have supposed a responsibility, a peculiar obligation to support it, would be attached to the united states, were they to give this privilege. as well might it be said that congress, by allowing a bridge to be built, or a road to be cut, would incur the expense, or if it could not otherwise be done for want of money in the applicants, would be engaged to do it for them at the national expense. if there are objections of force in one instance they will apply to the other. if this is denied it proves that district to be wretched outcasts, being denied a request the most reasonable, natural, and just that can be contemplated. many of the objections urged, indeed most of them, against the admission of this report, do not go so much to the exclusion of the measure, as to the danger of legislative interference. gentlemen say, if we move in it--if we put our hands at all to it, we pledge ourselves to effect it. if this is the situation with the people of columbia, the year will be a woful year to them; this is an unhappy presage of the jurisdiction to be exercised on that country. if it is inexpedient for that district to have a seminary of learning, let gentlemen who could state it with truth, come forward and say so. if the objections of gentlemen are not grounded on the danger of this house pledging itself to support the institution nor on the inexpediency of such a thing in that district, i am at a loss, for my soul, to conceive on what ground their objections are formed. i was surprised yesterday to hear the opposition come from the quarter it did; and am equally surprised to find such an opposition now. in my view there is a very great want of seminaries of learning in that district. if we take a view on the south side of the potomac, for a considerable extent of country, there is no institution to answer any desirable purpose. there is the greatest probability of a rapid increase in the population. is it not reasonable, then, that an institution of this kind should be established in that place? and if reasonable at all, are we to wait till the period arrives when the country is thickly inhabited before we commence a building and project the plan? i have long thought that in this young country such a thing was necessary. it should be now begun, to grow up with its growth and strengthen with its strength. we should now lay the corner-stone--the foundation to build upon. though such a seminary cannot be established now, it may fifty years hence; and it can never be too soon to commence a good institution. we are not called upon to travel into the fields of speculation for the purpose of finding funds to support this plan; there are funds which present themselves to view. we only want a grant to secure the benefactions in prospect. the president has employed a handsome benefaction for this purpose; and i much wonder that gentlemen from that part of the union should oppose measures that would only encourage its reception. when i take a view of the extent of country which lies much in want of a seminary, i feel surprised that such measures towards its growth should be denied. if there are any gentlemen here who oppose the advancement and growth of that district which they have taken under their wing, they should come forward and declare it; we then should have ground to account for their conduct. if we are determined to deny these people common justice, we dispirit them. there is no circumstance which can occur that will tend so much to discourage the growth of that state; if we forbear to do them this justice, we exclude them looking up for those common rights which could be enjoyed in any other territory of the united states. i hope this house will never deny to that people, rising into existence, this small privilege. is it a strange thing, i would ask gentlemen, for a state to grant charters? i answer, no. and for this state to be denied this privilege only to secure a fund for such an excellent institution, i believe is quite a novel idea. i hope if there are any doubts on this subject, they will lie over for future consideration; and i hope we shall be careful not to damp the attempts of that people by a conduct which could not be refused by any state in the union; and that congress should refuse it without assigning a sufficient reason is unprecedented. i hope it will lie over for future consideration, and not be refused so quickly. it was moved that the subject should lie over until the second monday in january. the question for postponement was put and carried--ayes , noes . wednesday, december . _relief to savannah._ mr. w. smith wished the house to resolve itself into a committee of the whole on the resolution, which he had the other day laid upon the table, proposing to afford some relief to the sufferers by the late fire at savannah. for his part, he said, he could see no reasonable objection which could be made to so benevolent a proposition. a gentleman in the house had got a plan of the ruins of the city; it was, indeed, a most distressful scene. there had never occurred so calamitous an event of the kind in the united states, or which had so strong a claim upon the general government for relief. he said they had granted assistance to the sufferers by fire at st. domingo; and surely if it were justifiable to grant relief to foreigners in distress, it was at least equally so when the objects were our own citizens. if gentlemen had objections to the measure, he wished they would state them. the sum with which he should think of filling up the blank would not be such as to materially affect our finances. mr. milledge said, if the unfortunate had any claim upon the government for relief, none could have greater than the citizens of savannah. few houses, he said, were remaining of that city, and those few were the least valuable. not a public building, not a place of public worship, or of public justice--all was a wide waste of ruin and desolation, such as scarcely could be conceived, and as it were impossible to describe. he hoped some relief would be afforded to distress so unexampled. mr. cooper said, it was a very unpleasant thing to come forward to oppose a measure of this sort; but, when they looked into different parts of the union, and saw the losses which had been sustained at new york, charleston, &c., it would appear only reasonable that, if relief was afforded in one case, it ought to be extended to another; and, if this resolution were agreed to, he should certainly move to have some relief afforded to new york. he hoped, however, the business would not be proceeded with. if the principle were a good one, it would bear going through with; but it would be seen this would, on the contrary, prove a dangerous one. what they did to-day, he said, should bear repeating to-morrow. if they were to make good losses by fire, there would be no occasion for insurance companies, nor any inducement to build with brick in preference to wood. he felt as much as others for the distresses of the people of savannah, but was of opinion it was not a proper business for the interference of that house. mr. w. smith agreed with the gentleman last up that this would be considered as a precedent; he agreed that they ought not to do that to-day which ought not to be done to-morrow. it might be brought forward as a principle upon which we should be bound to relieve new york or charleston; but the question is, whether this is not a distinct case? this is a case awfully distinguishable from all others; and if a case like the present will not be often found, this house are certainly not bound to grant relief in others, though in this. he trusted such a case would not be again found to solicit relief. charleston, he said, had experienced a great calamity by fire, but had not asked relief of that house; and it was probable if it had it would not have been granted, because its distresses are not so great. in a distressing situation like that now before us aid can be afforded by the many towards alleviating the distresses of the few. hence arises the advantages from public contributions; and would that house, he asked, refuse their assistance? it would not be felt by the public purse. it has been said, to adopt this resolution would have a dangerous tendency, inasmuch as it would encourage a neglect of insurance. but the evil has come; the unfortunate circumstance has occurred; four-fifths of that unfortunate city has been destroyed, and their distress is great. such a circumstance may not again happen for a century. the amazing value of £ , sterling damages is done; and shall we refuse to give a trifle to assist, with others, towards removing the present distressed situation of some of the unfortunate inhabitants? i trust not. it is not asked of the house to indemnify the loss of these sufferers. no, sir; it is only asked that the general government should give the trifling sum of fifteen or twenty thousand dollars to afford these people some relief. the question was then put for the house to resolve itself into a committee of the whole on the subject, and lost--yeas , nays . it was then moved that the committee be discharged from the further consideration of the subject. mr. w. lyman hoped the business would not be disposed of without going into a committee of the whole. he thought more respect was due to the feelings of the sufferers than to dispose of the subject without discussion. he hoped the committee would not, therefore, be discharged. mr. hartley trusted the committee would not be discharged. he believed the destruction of lisbon by an earthquake did not occasion greater mischiefs than the late fire had done to savannah. the legislature of pennsylvania, which had no greater power than the general government to afford relief to these sufferers, had given $ , . indeed, he thought it more the province of the general government than of state governments to afford relief in such cases. shall we, said he, treat the citizens of savannah with more disrespect than the people of st. domingo? this house then gave $ , or more for the relief of those people, and shall we not now have liberty to discuss the subject, whether to give or not to our own citizens? although, he said, he would not wish to draw a precedent from english transactions, yet he would observe that their generous benevolence to the unfortunate sufferers by the earthquake at lisbon, though only commercially acquainted was worth imitation, to whom they gave £ , . mr. h. was sorry gentlemen should endeavor to prevent this by bringing in the calamities in new york and charleston. those were only personal losses; this was a general conflagration, a catastrophe unprecedented; and he hoped, for the sake of humanity and national honor, this house would never withhold relief. mr. sprigg hoped the committee would not be discharged, but that they would go into the business at an early day. he said, he had not made up his mind how far they had power to afford relief in a case like the present. there was an instance in the relief afforded to the daughters of the count de grasse, as well as that given to the sufferers at st. domingo. he wished for further time to make inquiry on the subject. if there were not insuperable objections to the measure, he hoped relief would be afforded. mr. harper acknowledged that it was sound policy in government to keep a strict eye over its treasury; but this watchfulness ought not to go to the rejection of all claims, however just and proper. he thought the tenaciousness of approaching the treasury was carried too far in the present instance. he would ask, what was the use of society if it were not to lessen the evils of such calamities as the present, by spreading them over the whole community, instead of suffering them to fall upon the heads of a few individuals? he thought it the duty of government to alleviate such peculiar distress as the present. it was said this would prove a dangerous precedent, and prevent necessary provisions against fire. if they were about to make good the whole of the £ , destroyed, there might be some ground for the alarm; but when fifteen or twenty thousand dollars only were contemplated to be given, no great danger could surely be apprehended. the fires at new york, baltimore, and charleston, had been mentioned; but what were the means of savannah when compared with new york? not as one to twenty. new york was rich enough to bear her loss, but this could not be said of savannah, all the inhabitants of which were reduced to poverty and distress. they could not, therefore, get relief from their fellow-citizens; and to whom could they look for protection and relief with so much propriety as to the general government? when compared to charleston, the loss of savannah was of ten times the magnitude as that experienced by it. the loss of charleston was alleviated by a subscription of $ , from its own citizens, besides the handsome contributions which were made in other parts of the union; but there was no property left in georgia to afford relief to the sufferers. suppose, said mr. h., we were to give thirty thousand dollars towards this loss, what would it be when divided among the whole union? and yet it would be enough to draw down countless blessings upon us from these objects of distress. he hoped, therefore, the committee would not be discharged. it was a case of peculiar and almost unprecedented affliction, such as he hoped would not again occur; and a decision in their favor would be applauded by every man, woman, and child in the union. the question was then taken for going into a committee of the whole on the subject, and carried by a considerable majority, there being votes for it. the house accordingly resolved itself into a committee of the whole, when mr. w. smith said, he did not propose to fill up the blank at that time. if the resolution was agreed to, the sum could be put in when the bill came into the house. he himself should not think of proposing to fill the blank with more than , dollars. this, it was true, was but a small sum, but it would afford relief to the poorer class of sufferers, and others could not expect to receive the amount of their losses. he should move that the committee might rise and report the resolution. mr. hartley called for the reading of the act allowing relief to the sufferers by fire at st. domingo. [it was read. it allowed , dollars for their relief, which sum was to be charged to the french republic, and if not allowed in six months, the relief was to be stopped after that time.] mr. macon wished the act allowing a sum of money to the daughters of count de grasse to be read also. he did not think either of them in point. the sufferings of the people of savannah were doubtless very great; no one could help feeling for them. but he wished gentlemen to put their finger upon that part of the constitution which gave that house power to afford them relief. many other towns had suffered very considerably by fire. he believed he knew one that had suffered more than savannah in proportion to its size: he alluded to lexington in virginia, as every house in the place was burnt. if the united states were to become underwriters to the whole union, where must the line be drawn when their assistance might be claimed? was it when three-fourths or four-fifths of a town was destroyed, or what other proportion? insurance offices were the proper securities against fire. if the government were to come forward in one instance, it must come forward in all, since every sufferer's claim stood upon the same footing. the sum which had been given to the sufferers at st. domingo was to be charged to the french republic, and that given to count de grasse's daughters was in consideration of their father's services. but new york had as great right to come forward and expect relief as savannah. he felt for the sufferers in all these cases, but he felt as tenderly for the constitution; he had examined it, and it did not authorize any such grant. he should, therefore, be very unwilling to act contrary to it. mr. rutherford said, he felt a great deal of force on what gentlemen had said. there were two circumstances which were perfectly conclusive in his mind. he saw it our duty to grant relief from humanity and from policy. savannah was a city of a minor, helpless state; it was a very young state, yet it was a part of the union, and as such, was as much entitled to protection as any state under such a direct misfortune; and it became congress to alleviate their great distress. they have lost much; they have, many of them, lost their all. to say we will not assist to relieve, when almost every state in the union is putting their shoulders to support these people's burden, is wrong. the state of pennsylvania has done itself immortal honor in the relief it has afforded, and shall we not help to support this part of the family in their distress? this state is a branch of the great family of the union; it would be, in my idea, extremely inconsistent to neglect them. he hoped the motion would be adopted, and he hoped it would never be said that the general government refused to provide help in such a poignant distress occurring in one of its principal towns. mr. hartley said, that the gentleman from north carolina (mr. macon) had voted against both of the bills which had been referred to. he knew no difference between the constitution of the united states and that of pennsylvania, yet a vote in their house had been carried unanimously. he thought the law for the relief of the sufferers of st. domingo perfectly in point; for, notwithstanding what was said about negotiation, the distress of those people had consumed all the money before the six months were expired. if ever there was a case in which they could grant relief, this was one. the losses at new york and charleston would bear no comparison with that of savannah; they were rich and flourishing places, whilst savannah was a small city of a new state, and the sufferers generally poor. he hoped, therefore, the resolution would be agreed to. mr. moore said, the laws which had been adduced as precedents were not in point; for the one sum we were to have credit with the french republic, and the other was in consideration of past services. the distress of the people of savannah was not an object of legislation; every individual citizen could, if he pleased, show his individual humanity by subscribing to their relief; but it was not constitutional for them to afford relief from the treasury. if, however, the principle was adopted, it should be general. every sufferer had an equal claim. lexington, in virginia, contained only one hundred houses, and all except two had been destroyed by fire. he should therefore move to add lexington to savannah in the resolution before them; though he would observe, as he did not approve of the principle, he should vote against them both. mr. venable did not see the difference between the two cases which was so distinguishable to the gentleman last up. because savannah was a commercial city, its distress, according to that gentleman, was indescribable, but when a like scene was exhibited in a small town, it was no longer an object which touched his feelings. his humanity went no where but where commerce was to be found. he asked whether the united states might not as well lose revenue in the first instance, as put money into the people's pockets to pay it with? humanity was the same every where. a person who lost his all in a village, felt the misfortune as heavily as he who had a like loss in a city, and perhaps more so, since the citizen would have a better opportunity by means of commerce of retrieving his loss. he was against the general principle, as he believed, if acted upon, it would bring such claims upon the treasury as it would not be able to answer. mr. murray thought the gentleman from virginia (mr. venable) carried his idea of relief too far. he had no idea that that house, or any legislature, could undertake to make good individual misfortunes. he was of opinion that the lines which separated individual from national cases, were very observable; the one was happening every day, the other seldom occurred. when a large town is burnt down, and that town is an important southern frontier town, it is surely a national calamity, and has a claim upon the humanity of the country. it was true, the claim was not of such a nature as to be brought into a court of justice, but it was a calamity in which the whole nation sympathized. it was not only a claim upon the humanity of the nation, but also upon its policy, as, by restoring it to its former situation, it would be able to bear its wonted part in contributing to the revenue of the country, and would continue to carry population, arts, and wealth to that distant part of the union. in case of war, savannah was a most important place. it was necessary the union should have a town in that situation, and he could not consider any money which might now be advanced as given away, but as lent to that town, which might enable it, in a few years, to resume its former situation, whilst the withholding of it might prevent its ever rising from its present ruins. mr. kitchell was opposed to the amendment and to the resolution itself. he had doubts if even they were to give the citizens , dollars, as was proposed by the gentleman from south carolina, whether they should not, instead of service, be doing them an injury; because, if the general government were only to give this sum, the state legislatures would proportion their donations accordingly, and probably give much less than they would otherwise have done, if they had not had this example before them. he had doubts as to the constitutionality of the measure; he thought the constitution did not authorize them to make such use of public money; however, he thought it might be a very flexible instrument; it would bend to every situation, and every situation to that. he thought, in this instance, if we grant money, while we attempt to serve, we shall eventually injure. as to what the gentleman from virginia says of lexington, mr. k. thought it had been fully relieved; however he should vote against both propositions. mr. page said, that he was sorry that his colleague had made this amendment, as he had done it with a view to defeat the original resolution. if humanity alone were to direct his vote upon this question, and if the amendment had been proposed more early and singly, he might have voted for it. but that not being the case, it, as well as motives of general policy, influenced him in favor of the original motion. he had reasons which could not apply to the amendment. he should vote against it. he was bound by order to confine himself to the single question before the committee. this is, shall the amendment be received or not? he declared it as his opinion that the case of lexington ought not to be connected with that of savannah, which had been, as stated by the member from south carolina, materially different. he was restrained by order from entering into the merits of the original resolution, but he thought that he had a right to hint at the motive of policy which would apply to the resolution, and not to the amendment. this was, that savannah being an important place, it would be wise and politic to prevent its revival from being owing to any other aid than that of the general government of the united states. it ought not to be under obligations to individuals, or single states, and much less to a foreign power. mr. hartley hoped the amendment would not prevail. if the loss of the people at lexington had been greater than they could support, they would doubtless have applied to the legislature of virginia, but he had not heard of any such application having been made. he agreed with the gentleman last up, that the general government ought to relieve distresses of this kind. mr. murray inquired when the fire happened at lexington? mr. moore answered, about nine months ago. he thought it was the duty of the united states first to pay the claims which were made upon them by distressed soldiers and others for past services, who were denied justice because they had passed an act of limitation. if they were to act from generosity, he said that generosity ought to be extended universally. it was a new doctrine that because a sufferer by fire did not live in a commercial city he was not equally entitled to relief with the inhabitants of a city, and that though such persons were called upon to contribute to the losses of others, they could have no redress for their own. this seemed as if favorite spots were to be selected upon which special favor was to be shown. he was opposed to all such humanity. mr. claiborne was against the amendment, but he hoped the resolution would be agreed to. he was sorry any gentleman should propose an amendment like this, purposely to defeat a motion which would tend to relieve such sufferers as those of georgia must be. he was not certain whether he could vote upon constitutional grounds or not. it was a sharp conflict between humanity to that suffering country and the constitution. if any case could be admissible, he thought this could; it ought to be remembered, that that part of the union has suffered much. georgia was a slaughter-pen during the war, besides being continually harassed by the hostile indians. he thought , dollars would not be ill-spent, as from motives of policy it would be of more advantage to the united states from the quick return the revenue would gain. indeed, if constitutional, he hoped the sum would be made more than proposed. these are your fellow-citizens who are suffering, and if not speedily relieved, the whole interest will be involved. if in order, he would vote that the committee rise, to enable him and, perhaps, many others, to consult whether relief could be constitutionally granted? he said he felt a great propensity to do it. the question was put on the amendment and negatived--there being only in favor of it. mr. baldwin said, he had doubted whether to make any observations on this motion; not that he was insensible to the calamitous situation which had been the cause of it, but from an apprehension that it might be thought he was too strongly affected by it. though it might be disagreeable to one to give his judgment and urge his opinions, when his own relation to the question was different from that of others, yet some of the reflections might not be useless to those who were to determine it. he was sure it was not a want of disposition to relieve the unhappy sufferers that had or would draw forth an observation on this occasion, but merely doubts as to the powers of the federal government in money matters. the use of a written constitution, and of that provision in it which declared that no money should be drawn from the treasury but under appropriations made by law, was very manifest from the caution which it gave in the expenditure of public money and in laying burdens on the people; yet he believed it impossible to obtain absolute directions from it in every case. the objection is, that congress is empowered to raise money only to pay the debts and to provide for the common defence, and the other purposes, exactly as specified in the th section. the objection has often been made, but many laws have passed not exactly specified in that section. he mentioned the private acts before alluded to, the law for establishing light-houses, to aid navigation in the improvement of harbors, beacons, buoys, and public piers, establishing trading-houses with the indians, and some others, to show that though the constitution was very useful in giving general directions, yet it was not capable of being administered under so rigorous and mechanical a construction as had been sometimes contended for. mr. giles said, if the present resolution passed it would make them answerable for all future losses by fire. the small sum of $ , was not of any consequence when compared with the establishment of a principle of that house acting upon generosity. he believed that neither the money nor humanity, but the establishment of the principle, was the thing aimed at. the unanimity with which a resolution had passed the pennsylvania legislature, was a proof that they believed they had the power to pass such a law. it was said the general government possessed the authority. the gentleman from georgia had said that "affairs of men" made it necessary to depart from the strict constitutional power. for his part, he did not think they ought to attend to what "the affairs of men" or what generosity and humanity required, but what the constitution and their duty required. the authority of that house, he said, was specified, beyond which they ought not to go. this was a principle not within the constitution, but opposed to it. there had, he said, been several cases introduced. that of the sufferers of st. domingo was not a case in point. they looked for a reimbursement of the money. he believed it had been repaid. and when the daughters of the count de grasse had $ , given them, it was thought to be necessary to introduce their father's services as a consideration. his feelings, he said, were not less alive to the calls of humanity than those of other gentlemen; but, by granting the money required, they should go beyond their powers, and do more real injury than good. mr. claiborne said, the more he heard, the more he found himself in favor of the resolution. by the discussion it had undergone, he was inclined to think it was, perhaps, reconcilable with the constitution; perhaps it was, he said, for he was not certain. the annual revenue, he said, of that place, was seventy thousand dollars to the united states, besides the great consideration of it as a frontier town. he had compared the advantages and disadvantages with respect to its relief in his own mind, and thought it would be highly consistent with policy to grant relief. it was a place which had been in great distress, and had great struggles with enemies in times past. can it be possible to suppose that we have not power to assist in erecting that place again, and putting it upon a footing to do good to the united states by a return of her revenue? certainly not. would the committee be willing that savannah should be erased from the revenue? are they willing to let it rest, and lose it? this is impossible. then, surely, it becomes policy to give aid towards its re-erection. unless the people do receive some aid, it will be a long time before seventy thousand dollars will be again produced from the revenue of that place. the committee then rose and reported their disagreement, when the house took it up. the question was then taken, and the yeas and nays demanded, "that the house do agree with the committee of the whole house in their disagreement to the motion," and resolved in the affirmative--yeas , nays , as follows: yeas.--theodorus bailey, david bard, thomas blount, theophilus bradbury, richard brent, samuel j. cabell, gabriel christie, john clopton, joshua coit, isaac coles, james davenport, george dent, abiel foster, jesse franklin, nathaniel freeman, jr., ezekiel gilbert, william b. giles, james gillespie, nicholas gilman, chauncey goodrich, christopher greenup, roger griswold, william b. grove, carter b. harrison, john hathorn, jonathan n. havens, james holland, andrew jackson, george jackson, aaron kitchell, john wilkes kittera, edward livingston, samuel lyman, william lyman, samuel maclay, nathaniel macon, andrew moore, anthony new, john nicholas, josiah parker, francis preston, john read, samuel sewall, nathaniel smith, israel smith, richard sprigg, jr., william strudwick, john swanwick, zephaniah swift, richard thomas, philip van cortlandt, joseph b. varnum, abraham venable, peleg wadsworth, and john williams. nays.--abraham baldwin, dempsey burges, thomas claiborne, william craik, george ege, dwight foster, henry glenn, andrew gregg, robert goodloe harper, thomas hartley, william hindman, francis malbone, john milledge, frederick a. muhlenberg, william vans murray, john page, elisha r. potter, john richards, robert rutherford, john s. sherburne, samuel sitgreaves, jeremiah smith, isaac smith, and william smith. thursday, december . george hancock, from virginia, appeared, and took his seat. _canadian refugees._ mr. williams moved for the order of the day, that the house resolve itself into a committee on the reports of committees to whom were referred the petitions of sundry refugees from canada and nova scotia. the first resolution read from the last report of the select committee on this subject, was in these words: "_resolved_, that the prayer of the petitioners, joseph green and others, from canada, praying a bounty in lands and other pay, for services rendered in the late war with great britain, ought not to be granted." this resolution was agreed to. the second was thus: "_resolved_, that a tract of land, not exceeding ---- acres, be laid off north-west of the ohio river, beginning at the mouth of the great miami, and extending down the ohio, not exceeding three times the breadth in length, be immediately appropriated to compensate the refugees from the british provinces of canada and nova scotia, pursuant to the resolves of congress of the d of april, , and the th april, ." mr. williams hoped the situation of the land would not be mentioned in the resolution; there were many circumstances that would render it unnecessary and improper. mr. hartley wished to know where the land was to be, because the value of the land in different places was various; he thought they ought to have land: he would not be thought to object to the resolution. mr. venable did not think it necessary to mention at this time what land should be appropriated for this purpose. a bill would be introduced in a few days, it could then be determined. if there were objections to appropriate the land mentioned, he hoped gentlemen would then propose a spot that would suit every conveniency better. these people, he said, ought to be satisfied: it was time they were. mr. dayton said, that the chairman of the committee said there was no land near lake erie of that description belonging to the united states; he wished to know what foundation the assertion had? mr. greenup said, the committee had made what inquiry they could on the subject, of persons well informed, who told them there was no land belonging to the united states of that description. mr. sitgreaves would vote for striking out the clause as it stood, not from any knowledge he had on the justice of the claims, but, if just, satisfaction should be given. the committee had not reported as to the value of land necessary to be given; the value of land was proportioned to its different qualities and location; he thought it would be as well for these people, to give them military land warrants, and let them locate by lot: this had heretofore been the method, and he thought it would be as advantageous to them as any, and avoid many difficulties with respect to the grant. mr. macon hoped the question would be divided; he liked the proposition of the gentleman last up, to strike out, and insert the words proposed; he therefore would wish the committee to rise, and report progress; or, if the house do not adopt the substitute, he hoped it would be recommitted. mr. dayton moved to strike out the words relative to location, and substitute the following resolution: "_resolved_, that provision ought to be made by law for granting donations of land to canadian and nova scotia refugees, in conformity to the resolves of congress of the d of april, , and the th of april, ." this resolution was adopted. the third was-- "_resolved_, that five hundred acres of land be granted to each refugee from canada and nova scotia." this resolution was attended with three explanatory restrictions. it passed, and the chairman read the first of these rules, which was, "that the applicant shall make proof, before some court of record, of his actual residence in one of the provinces aforesaid, previous to the ---- day of ----." mr. greenup supposed this was meant merely as the outlines of a plan to be completed when the bill was brought in; at this time it was necessary that instruction should be given to the committee that they may bring in a bill consistent with the will of the house. mr. dayton objected to this, and the two following clauses. he objected also to the resolution for an indiscriminate grant of five hundred acres of land to each refugee. some of these people would be found to deserve more and some less, in proportion to their exertion and sufferings. some might have lost large property, or have had large families. if mr. dayton had observed what the committee were doing, he would have objected to the passing of that clause. he likewise opposed the present one. this clause and the remaining two were negatived. the committee of the whole then rose. the chairman reported progress. the house took up the report. the first resolution and the second, as altered in the committee, were agreed to. the question on the third resolution was then put. mr. macon thought that it would be exceedingly improper to grant an equal quantity to each; it ought to be entirely circumstantial. mr. greenup was of the same opinion; he said some of these people had suffered more than others. the circumstances of some were such that they were in irons, in close confinement twelve or fourteen months, many of them had the warrant signed for their execution, and a variety of cruelties were exercised: these distresses required consideration. mr. baldwin hoped it would be struck out; the house should not go into particulars of the quantity to be given, or the circumstances of the persons; he had seen great difficulty attending these specifications. he did not like this loose way of doing business; they need not open land offices for that purpose; some way would be found out to give the people satisfaction. mr. williams hoped the committee would not be restricted. the question on the third resolution was then put, and lost. a committee was then appointed of messrs. gilman, williams, and greenup, with instructions to bring in a bill pursuant to the resolutions as amended. _kidnapping negroes._ mr. swanwick called the order of the day on a report of the committee of commerce and manufactures, made the last session, on a memorial from the state of delaware, respecting the kidnapping of negroes and mulattoes. the house accordingly resolved itself into a committee of the whole on the subject. mr. swanwick said, that there was a mischievous practice in use of carrying these people away from the place of their residence, by masters of vessels, and selling them in other parts. the plan of the committee was to get instructions from the house to bring in a bill making it necessary for every master of a vessel to have a certificate of the number and situation of any negroes or mulattoes he may have on board. he hoped the measure would not at all be opposed, as it only prevented thefts in this case. mr. coit wished to know whether it was necessary for the united states to intermeddle with this? he wished the report had been more satisfactory, and stated the principles upon which it was formed with more precision. the evil, he doubted not, existed, but the law might create a greater evil than that it was intended to cure. it appeared to him that the laws in the several states were fully adequate to the subject without further provision; he was not ready to give a vote on it either way at present. mr. swanwick said, the report was grounded on an application from the legislature of delaware. [mr. s. here read the memorial from that state to congress.] the practice, he said, was very injurious and dangerous to that state, and he hoped a remedy would be attempted, as it was in the power of congress to provide one by this method; some of the states had made an attempt to remedy this evil, but their laws were broken with impunity. if the resolution of the committee passed, he should move that the committee bring in a bill in pursuance thereto. mr. swanwick said, the laws of the different states forbade the stealing of negroes; but they had no remedy that would take effect out of their own state: and although each had effect in their own state, yet they had no power on the water. the intention of the present measure was to oblige masters of vessels, when they cleared out of any ports in the delaware, when they took any negro or mulatto on board, to have a certificate of their being free. the situation of the state of delaware, communicating with both the delaware and chesapeake, was, in this respect, particularly exposed to insult and injury; but this remedy, he thought, would be effectual. the gentleman last up wished the committee to rise, in order to recommit it: he should vote for it if the gentleman was willing to add, "to bring in a bill." the gentleman was in the committee, if he had stated his objections there, it might have saved time. mr. murray wished to know what was fully meant by the idea of preventing kidnapping. he confessed he did not rightly understand the meaning of the word. was the intention of the committee to have reference to the taking of free negroes and selling them as slaves, or the taking slaves to make them free? mr. swanwick said it was intended to prevent both evils. it was intended to prevent their being stolen from their masters; and, also, to prevent the power of the master taking them to the other states to sell them. this measure, he thought, would prevent both. the state of maryland had taken measures to prevent it themselves; they had made it a heavy penalty to take a negro out of the state; but that is not effectual to prevent the evil now complained of. this was meant to prevent the practice of examining ships before they sailed and when they arrived. mr. w. smith wished the committee to rise; not with a view of recommitting the report, but to get rid of the business altogether. the subject, he said, involved many serious questions; it required very serious consideration, and he wished it had never come up. it was a question with him how far congress had a right to meddle with it at all. he felt alarmed on the subject as brought from that state. he considered it as a kind of entering-wedge, as a gentleman had lately said, on another occasion. it was altogether a municipal regulation, and not at all connected with trade or commerce, and therefore ought to be left to the state legislatures to settle. he did not think the constitution allowed that house to act in it. gentlemen had said, that the laws of the states took no effect on the waters. this, he thought, was founded on a mistake. the laws of the states could prevent robbery on water as well as on land, if within the jurisdiction of the united states. he hoped the committee would rise, and dismiss the subject. mr. isaac smith thought the gentleman knew not the proper meaning of the report. it was not to make a law against stealing merely, but against its being done successfully; many instances, he said, had occurred, where they had been hid many days on board the ships and taken away in the night to the west indies, and other parts of the world to sell them. it was impossible that the existing laws of the states should prevent this fraudulent practice: the intent of this law was to prevent this practice; by being examined, and forced to take certificates along with them, it could not be easily done. the particulars of the remedy would be more readily seen when the bill was brought in; it would explain itself; it then might be modified, altered, or rejected altogether. he thought it could give no offence or cause of alarm to any gentleman; and he was sure it was no way contrary to the constitution. mr. macon wished the committee to rise, and not have leave to sit again. he began to see more of the impropriety of the measure than before, and for the same reasons as the gentleman from south carolina, (mr. smith.) mr. swanwick said, this house had ascertained a certain proof, by which our seamen are known, by giving them a certificate of their citizenship, specifying their person and freedom, which had operated against impressment: and was it not equally necessary, and would it not be equally competent, to protect a man from injuries to which his color has exposed him? our unfortunate negroes and mulattoes are exposed by their color to much insult. in some places, he said, they were so exposed, that color alone was evidence of slavery. he would not enter into the question, whether all ought to be free, because it was not immediately before the house; but if these people were black or white, if free, they ought to be protected in the enjoyment of their freedom, not only by state legislatures but by the general government. mr. murray did not expect to have raised the sensibility of the gentleman last up. it really arose from his ignorance, he said. he wished to know the origin of the matter; he did not know whether it had originated in a memorial, or whether it came from the humanity of some patriotic member, unsolicited. great and manifold evils did exist in this point; he meant to make a motion on the subject, as maryland felt heavily from the practice. he confessed he was not sufficiently acquainted with the english language to know the proper meaning of the word _kidnapping_; he therefore wished to know if it extended to the object he had in view. he declared he did not wish to encourage the harboring of negroes; far from it; he wished to prevent it. he did not think the law extended far enough on that point; at present, negroes, through the influence of their own minds, or the insinuations of others, or both, frequently leave their masters, and are harbored by other persons. the law takes no notice of this, except it can be proved that the negro is some person's property, and has absconded: this is very difficult to prove; therefore great evils attend its lenity. 'tis true, if it can be proved that the negro has absconded and was harbored, there was a very heavy penalty inflicted; but, he said, this was difficult to prove. this, he owned, was his _insinuation_, as the gentleman termed it; and upon this subject he meant to claim the attention of the house. this evil, he said, might arise from the false philosophy and misplaced philanthropy of the advocates of emancipation. he was ever willing to give the question a fair trial, and thought himself bound to thank the gentleman for his extreme benevolence in advocating it. mr. swanwick, to satisfy the gentleman from maryland, told him, that the subject came before the house from the state of delaware. mr. w. smith said, he did not know how far the committee should go, he should not vote for the matter to go into the committee. he said, it was that kind of business which, by the constitution, was to be left to the different states, he could not agree to the subject going any further. the observations of the gentleman from pennsylvania had convinced him that that house ought not to interfere with the individual states on the subject; the interests and policy of the different states were so various, that it would be a dangerous thing to meddle with. he thought it an improper question for discussion; he conceived it would be sound policy not to touch it in that house. the gentleman had gone too far to make use of the word _emancipation_. he feared lest the use of it should spread an alarm through some of the states. it might imperceptibly lead from step to step till it ends in mischief. mr. nicholas hoped the business would not be dismissed. we, said mr. n., who reside in the southern states, are unfortunately possessed of such a kind of property as has a considerable odium attached to it; but, if we unfortunately hold slaves, we ought not to contribute to the making slaves of free men, but i would wish to establish them in their freedom. if we can give relief as the thing exists, let it be; by all means do it, whether it incur the pleasure or displeasure of some of the slaveholders. he hoped the subject would have full investigation. the question was then put for the committee to rise. fifty-four members rising in the affirmative, it was carried. mr. sitgreaves then moved for the committee of the whole to be discharged from the further consideration of the report; this, he said, was in order to make way for another motion to refer it back to the committee, to report by bill or otherwise. the question was put, and the committee discharged. mr. swanwick moved that the business be recommitted to the committee of commerce and manufactures, to report by bill or otherwise. mr. coit wished the subject to be postponed for further consideration before it was sent to the committee. he had doubts as to the propriety of sending it at all. he thought it had not had that discussion a subject so important required. mr. w. smith said, he believed this was the first time it was considered in the house. it had been tried in a committee but never taken up by the house, and now gentlemen wished to send it back to the committee, with instructions to bring in a bill. the committee of commerce and manufactures was considerably deranged since last session, when this business came before them; many new members were added, and it required more information before it could come to the conclusion prescribed. mr. sitgreaves said, if any one good purpose could be derived to the house or to the gentlemen, he would not oppose it; but he was at a loss to know what good object could be attained by a delay. with respect to what had been said by the gentleman, (mr. smith,) that the committee were forced to bring in a bill, he was surprised that such an idea should be formed. if that committee report a bill, this house is not even pledged to pass it. when the subject is sent to the committee with that instruction, can it be conceived that committee is forced to report a bill? there is no such thing intended nor included in the words, as either this house should be pledged to pass a bill, or that the committee should report one. the object is, that the house, through the medium of the committee, should have a plan prepared for their consideration, and the word "otherwise" leaves the committee to exercise its own discretion as to the report. the gentleman from connecticut, with a prudence and consistency highly becoming, wishes time to think on the subject. but how is that gentleman to have foundation for his reflections until a bill is drawn? mr. s. did not know what were the resources of that gentleman's mind, but for himself, he must own that in all the attitudes in which this subject had presented itself, he could not distinctly see the plan. one gentleman had said there was no remedy the united states could apply but what was incompatible with the laws of the individual states. mr. s. presumed that until he saw the mode to be adopted, he could not say whether it was easy or difficult. on the whole, he thought to postpone the subject could answer no good end, while it might delay the object, and do injury. mr. coit said, very probably the resources of his mind may not be equal to that gentleman's, he therefore wished the subject to be delayed that he might have time to get into the knowledge of the business. mr. coit's motion for postponement was then put and carried--yeas , nays . _hugh lawson white._ mr. blount then called for the order of the day on the report of the secretary of war on the petition of hugh lawson white, a soldier under general sevier, against the indians. the house accordingly resolved itself into a committee of the whole. the following report from the committee of claims was then read: that the claim set forth in the said petition, is intended to establish a principle that will apply to the whole of the militia which were called out under brigadier general sevier, in , to act offensively against certain indians south-west of the ohio. that the expedition against these indians, as appears from the muster-rolls, comprehended a period of above five months, or from the d july to st december, . that it was undertaken without authority derived from the president, under the laws of the united states, and for the avowed purpose of carrying the war into the cherokee country. that the tenor of the instructions from the department of war to the governor of the south-western territory forbade offensive operations. having given these facts, it may be proper to add, that it appears, by a recurrence to official papers, that the indians had greatly perplexed and harassed by thefts and murders, the frontier inhabitants of tennessee; and previous to the service, for which compensation is demanded, had shown themselves in considerable force, and killed at two stations (one of them within seven miles of knoxville) fifteen persons, including women and children: that it must rest with congress to judge how far these aggressions of indians, and such other circumstances as can be adduced to the parties, constitute a case of imminent danger, or the expedition a just and necessary measure. mr. a. jackson[ ] said, by a recurrence to the papers just read, he doubted not it would appear evident, that the measures pursued on the occasion alluded to were both just and necessary. when it was seen that war was waged upon the state, that the knife and the tomahawk were held over the heads of women and children, that peaceable citizens were murdered, it was time to make resistance. some of the assertions of the secretary at war, he said, were not founded in fact; particularly with respect to the expedition being undertaken for the avowed purpose of carrying the war into the cherokee country; indeed they were contradicted by a reference to general smith's letter to the secretary of war. he trusted it would not be presuming too much, when he said, from being an inhabitant of the country, he had some knowledge of this business. from june to the end of october, he said, the militia acted entirely on the defensive, when twelve hundred indians came upon them and carried their station, and threatened to carry the seat of government. in such a state, said mr. j., would the secretary (upon whom the executive power rested, in the absence of the governor) have been justified, had he not adopted the measure he did of pursuing the enemy? he believed he would not; that the expedition was just and necessary, and that, therefore, the claim of mr. white ought to be granted. he therefore proposed a resolution to the following effect: "_resolved_, that general sevier's expedition into the cherokee nation, in the year , was a just and necessary measure, and that provision ought to be made by law for paying the expenses thereof." mr. harper said, this appeared to be a subject of considerable importance; he hoped the resolution would, for the present, lie on the table. he therefore moved that the committee rise and ask leave to sit again. mr. coit said, the report wanted some more preparation before it should have come before the house; he would therefore move that it be referred to the committee of claims; he knew of no reason against this reference, as many reports from heads of departments had been so referred. mr. blount hoped the motion would not prevail. the expedient of referring it to the secretary at war was resorted to, when it first came before the house. he hoped now it would not be deferred, but decided on. he thought the committee of claims, from having once had it before the house, knew as much of the case as they could know, and perhaps all was included in this report. mr. d. foster made the same observations in effect as mr. blount. mr. coit said, gentlemen had not given a shadow of a reason why it should not be referred to that committee. mr. jackson owned he was not very well acquainted with the rules of the house, but from the best idea he could form, it was a very circuitous way of doing business. why now refer it to the committee of claims, when all the facts are stated in this report, he knew not. if this was the usual mode of doing business, he hoped it would not be referred. mr. w. lyman thought, the time it was under consideration before, when referred to the secretary at war, was the time to have thought of referring it to that committee; but now it was too late; now the house had a report before it. it appeared to him a mere formality. it looks like throwing the business out. he had not made up his mind which way he should vote, but he thought one report was sufficient; he, therefore, hoped it would come under consideration. mr. blount said, when he first presented the petition, he moved it to be referred to the committee of claims; it was then rejected, and sent to the secretary at war. the committee rose, and obtained leave to sit again. friday, december . _the chickasaw claims._ alexander d. orr, from kentucky, appeared, and took his seat. mr. andrew jackson presented a petition of george colbert, one of the chiefs and warriors of the chickasaw nation of indians, complaining of a non-performance of stipulations entered into in certain _talks_ held with governor blount and other agents of the united states, in which they agreed in defensive support of each other's rights; that their nation was invaded by the red people, (the creeks,) when they applied, according to treaty, for aid; that their brother, james robertson, said he had no orders to send them any assistance; and that he must first have orders from their father the president of the united states. however, a detachment of volunteers under the command of colonel mansker, came to their aid. he asked compensation for supplies furnished to that detachment during sixty days. he said he had applied to his beloved friend the secretary at war, who told him that congress had set apart no money out of which it could be paid; he, therefore, applied to congress for relief. this petition was referred to the committee of claims. _hugh lawson white._ the house again resolved itself into a committee of the whole on the petition of hugh lawson white. the resolution of mr. andrew jackson having been read, mr. coit called for the reading of the petition upon which the report was founded. it was read. mr. a. jackson said, the rations found for the troops on this expedition had already been paid for by the secretary of war, and he could see no reasonable objection to the payment of the whole expense attending the expedition. as the troops were called out by a superior officer, they had no right to doubt his authority. were a contrary doctrine admitted, it would strike at the very root of subordination. it would be saying to soldiers, "before you obey the command of your superior officer, you have a right to inquire into the legality of the service upon which you are about to be employed, and, until you are satisfied, you may refuse to take the field." this, he believed, was a principle which could not be acted upon. general sevier, mr. j. said, was bound to obey the orders he received to undertake the expedition. the officers under him were also obliged to obey him. they went with full confidence that the united states would pay them, believing that they had appointed such officers as would not call them into the field without proper authority. if even the expedition had been unconstitutional (which he was far from believing), it ought not to affect the soldier, since he had no choice in the business, being obliged to obey his superior. indeed, as the provisions had been paid for, and as the ration and pay-rolls were always considered a check upon each other, he hoped no objection would be made to the resolution which he had moved. mr. coit said, he had called for the reading of the petition, because he could not see the connection between it and the resolution under consideration. the petition prayed for recompense for the services of the petitioner, and the men under his command, and the proper resolution would be that the prayer of it ought or might not be granted; but, instead of this, the resolution before them went to the whole troops employed in general sevier's expedition. mr. a. jackson said, by referring to the report it would be seen that the secretary of war had stated, that to allow the prayer of this petition, would be to establish a principle that would apply to the whole of the militia in that expedition. if this petitioner's claim was a just one therefore, the present decision ought to go to the whole, as it was unnecessary for every soldier employed in that expedition, to apply personally to that house for compensation. mr. rutherford observed, that the gentleman from tennessee had set the matter in so fair a light that it was not necessary to say much more on the subject; but, as he had been acquainted with the frontier from his infancy, he would just give it as his opinion, that the expedition was a necessary one, and that the expense ought immediately to be paid. he hoped, therefore, the resolution would be agreed to unanimously. mr. harper was not prepared to say, without more information than he had on the subject, that the measure was just and necessary, or the contrary. he felt disposed to think favorably of the expedition; but he thought the house should have further information before it came to any resolution on the subject. they had, it was true, a letter from general smith, the then secretary, but he thought this was not sufficient. he thought it would be better to refer the report and other papers to a select committee, with instructions to inquire into the necessity and propriety of the expedition, and report thereon. he hoped, therefore, the present resolution would be disagreed to, and the committee would rise. he would then bring forward a resolution to that effect. the secretary of war, he said, had not gone fully into the subject; he had given them copies of two letters, but not his opinion. he did not think that an expedition of so important a nature, and which must involve in it a very heavy expense, should be decided upon without further information. mr. craik agreed in sentiment with the gentleman from south carolina, (mr. harper.) he said there was great difficulty in forming an opinion from the report itself; though the secretary of war seemed to think the calling out of the militia necessary, there were other expressions in the report which appeared to convey a contrary sentiment. he referred to the letter of general smith, but mentioned that there were other papers. he could not say the expedition was not necessary; but he thought further information was desirable, and the report should be committed to a select committee, for the purpose of gaining that information. mr. w. smith agreed with the two gentlemen last up, that further information was necessary. the question, he said, involved a number of important points. in the first place, a question was involved, whether, if the expeditions was necessary, as it was not authorized by law, the expense ought to be defrayed by the united states? by the report of the secretary of war, it had appeared that congress were well apprised of all the circumstances which rendered the expedition necessary, yet they did not think proper to authorize it. in the letter of the secretary of war to governor blount, on the subject, was this passage: "if those difficulties existed while the congress were in session, and which, it was conceived, they alone were competent to remove, they recur, in the present case, with still greater force; for all the information received at the time congress were in session, was laid before both houses, but no order was taken thereon, nor any authority given to the president of the united states; of consequence his authority remains in the same situation it did on the commencement of the last session. it is, indeed, a serious question to plunge the nation into a war with the southern tribes of indians, supported as it is said they would be." mr. s. also read from the report "that the expedition was undertaken without authority," &c. the secretary afterwards, indeed, stated, in his report, the disagreeable situation of the country at the time, by way of palliative; but, as congress were possessed of these facts, and did not authorize offensive operations, it became a nice point to determine whether the expedition in question was justifiable. he would not say that such a situation of things might not occur as would justify a measure of the kind, but it was of consequence to determine whether this was such a case, which could not be done hastily. neither had the house any information of the magnitude of the expense, whether it would be two or three hundred thousand or half a million of dollars. he should, therefore, hope the committee of the whole would be discharged, and that the subject would be committed to a select committee. mr. madison saw no necessity for referring this subject to a select committee. if it was suggested that the official information which was before them was inaccurate, and that a more full explanation of the situation of things was necessary, there would be some ground of reference; but he did not find that this was the case. the secretary of war stated facts, and referred to documents to prove "that the indians had greatly perplexed and harassed, by thefts and murders, the frontier inhabitants of tennessee, had shown themselves in considerable force, and killed at two stations fifteen persons." if this was a state of facts, and it could not be doubted, the words of the constitution on the subject were clear: "no state shall, without the consent of congress, lay any duty on tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay."[ ] there could be no doubt, therefore, mr. m. said, but this expedition came within the meaning of the constitution. in many cases, he said, it was difficult to determine betwixt offensive and defensive operations, as it was sometimes necessary, when acting on the defensive, to use an offensive measure. he had no doubt on the subject, and thought the expense of the expedition should, by all means, be paid. mr. dayton (the speaker) said, that he was not prepared to adopt the resolution which was moved by the member from tennessee, nor even to decide finally upon it, unless he could be persuaded that the gentleman from virginia (mr. madison) was correct in saying that the report before them contained all the information which it was possible for them to obtain. he was convinced that there were other official papers and documents which would throw additional light upon the subject, and therefore, ought to be in possession of the committee of the whole before they took any decisive step. he alluded to the confidential communications from the president, in december, , which gave rise to lengthy discussion, with closed galleries, upon the measures that ought to be adopted in consequence of the hostile acts and threats of those very south-western indians, who were the objects of the expedition for which they were called upon to pay. the house of representatives then decided that they would neither declare war against those nations of indians, nor authorize the president to carry an offensive expedition into their country, if, in the recess of congress, he should deem it proper, in consequence of their continuance in hostility. as the acts of congress upon this very application would operate in future as a precedent and kind of commentary on that part of the constitution which limited the instances in which a state might levy troops and act offensively, without the previous assent of the general government, they could not, mr. d. said, be too particular in their investigation, nor too strict in their reference to dates and facts. he hoped that the committee of the whole, would be discharged, and the report of the secretary of war referred to a select committee, whose duty it would be to report those facts, with their dates, which gave rise to the claim in question, and which justified, under the provision in the constitution, the raising of troops and carrying on an offensive war, without the previous consent of congress or approbation of the president. mr. nicholas believed, on a reference to dates, it would be seen that these attacks of the indians were subsequent to those which were in the knowledge of congress at the time mentioned, as they took place while governor blount was at philadelphia; and he thought no further information was necessary on the subject than the letter from general smith to the secretary of war, printed with the report, to prove that the expedition was both just and necessary. general sevier's going into the cherokee country was no proof that his operations were offensive. if other information could be obtained by referring the business to a select committee, he should have no objection; but he believed this would not be the case. he wished the letter of general smith to be read. [it was read accordingly.] mr. baldwin was not able to recollect how great a portion of the members present were in the house when this business was brought before congress in the year . his own recollection was fresh upon the subject. it was a period when they were much alarmed for our indian frontier, north and south. the north was fortified, and it was recommended to have a legion on the south. the gentleman from south carolina, he recollected, was opposed to the measure, and thought the executive had determined too soon upon hostility. mr. b. said he had at that time frequent conversations with the then secretary of war, who informed him that he had written to the governor of tennessee that, in case the pressure of the indians was so great as to require it, he must call out the militia. the governor was well known, and sufficient confidence was placed in him that this power would not be abused. he believed the troops on the northern frontier had not proved sufficient, and that they had already paid the expense of troops which were called in to their assistance. at this period, mr. b. said, the danger which threatened the country was great, and it was happy for us it had been so well got over. he believed it was well that the legion for the southern frontier was not equipped, though he at that time thought it necessary. the expense of the expedition in question, he said, would be nothing compared with that which would have taken place had the legion contemplated been equipped. mr. b. said, he had no doubt with respect to the propriety of paying the expense of this expedition. he did not think the number of men was great, or that the charge would be very heavy. mr. dayton (the speaker) said, he was inclined to believe the attacks of the indians, which provoked the expedition of general sevier, were subsequent to those in the knowledge of congress at the time the subject was under discussion. he was one of those, he said, who thought that the hostile dispositions shown by those indians at that time called for force, and he had introduced a resolution, by means of his colleague, to that effect. it was not, therefore, that he did not think the expedition authorized, but because he had a desire to have the facts relative to the subject clearly stated, that he wished the business to be committed to a select committee. mr. rutherford said, they were not particular about the manner of doing the business, provided it was done. he was confident the expense of the expedition ought to be paid. when the indians were upon them, what could the governor do? was he to send forward to the seat of government to be instructed what to do? no; resistance was necessary, and it was not becoming in them now to say, "you did not act perfectly regular--the thing was not exactly as it should have been." it was a critical period, he said, and if the expenses were not paid, it might have a bad effect in future. mr. kitchell was in favor of the committee rising. he remembered the transactions which took place on this business, as mentioned by his colleague, (mr. dayton.) he said, he was one of those who voted against the proposition of using hostile means, because he thought it possible to ward off the evil. it had been warded off; but he believed there was sufficient ground for calling out general sevier, and he doubted not, if the business was referred to a select committee, the result would be satisfactory to those gentlemen who brought forward the business. the committee rose, and leave not being granted to sit again, on motion, the report and papers accompanying it were referred to a select committee of messrs. a. jackson, j. smith, blount, dent, and harper.[ ] friday, january , . _direct taxes._ the house then took up the consideration of the resolution reported yesterday by the committee of the whole, on the subject of further revenue. mr. coit wished for a division of the question, viz: that the proposition for a tax on land and that for slaves should be put separately. mr. swanwick called for the yeas and nays. they were agreed to be taken. mr. nicholas thought the resolution should not be divided, but that the propositions for a tax on land and a tax on slaves should go together, as he should object to vote for the tax on land except that on slaves accompanied it. he thought the gentleman had better try the question, by moving to strike out what respected slaves. mr. madison thought it would be best for the two propositions to go together; but if they did not, he did not think the embarrassments insuperable. if the question was divided, those who thought a tax on slaves necessary must vote for the first part; and if the second was rejected, there would not be wanting an opportunity of voting against the tax on land. it was necessary to observe, that it had been found expedient to associate these two taxes together, in order to do justice, and to conform to the established usage of a very large tract of country, who were entitled to some degree of attention, and to whom a tax on land, without a tax on slaves, would be very objectionable. mr. coit said, he could not gratify the gentleman from virginia by varying his motion, as it would not answer the purpose he had in view. mr. nicholas supposed, if the motion was persisted in, he was at liberty to move to insert _slaves_ in the first part of the resolution. the gentleman certainly knew his own views best; or he thought it was possible to have settled the business he proposed. mr. w. smith saw no difficulty on the subject. gentlemen would vote for the first part of the resolution, in hopes that the second would pass; but if it did not pass, they would have an opportunity of voting on the main question, and thereby defeat the whole. mr. van cortlandt would vote for both together, but not separately. mr. gallatin inquired as to a point of order, whether, if the first part of the resolution was carried, and the second negatived, the question would not then be taken upon the resolution as amended? the speaker answered in the affirmative. mr. williams said, it would save time if the question was taken upon the whole resolution together; for if several gentlemen voted against the first proposition, lest the last should not pass, the whole might in this way be defeated. he thought a vote might be safely taken upon the whole together, as no one would be bound by the vote in favor of the bill, if he should not approve of it. for his own part, he wished to see the plan, though he did not know that he should vote for it. mr. nicholas supposed there was not the difficulty mentioned by the gentleman from new york. gentlemen would not risk the whole by voting against the first part of the resolution; since, if the second was not carried, they could afterwards reject the whole. the question was then put, that the house agree to the first resolution, viz: "_resolved_, that there ought to be appropriated, according to the last census, on the several states, the sum of----, to be raised by the following direct taxes, viz: "a tax ad valorem, under proper regulations and exceptions, on all lands, with their improvements, including town lots, with the buildings thereon." it was resolved in the affirmative--yeas , nays . the second part of the resolution, relative to slaves, was about to be put, when mr. gallatin said, before the question was taken on this division, he would just mention why this species of personal property was brought under view, whilst all other personal property was unnoticed. it was very true, that stock upon a farm in the northern and eastern states paid nearly as great a proportion of the taxes of those states as the negroes did those of the southern states, and therefore it might seem somewhat wrong to introduce negroes in the one case and not cattle in the other. the reason which induced the committee of ways and means to adopt this mode was, that negroes are confined to certain spots of land in the southern states, while horses and cattle extend nearly over a whole country. and a land tax, unaccompanied with a tax on slaves, would be very unpopular in those states, as it would throw too great a burden upon farmers who did not hold slaves, and fall too lightly upon those whose property chiefly consisted of slaves. there was this difference betwixt the two species of property: a farmer in the northern or eastern states would not think himself aggrieved by not paying a tax upon his farming stock; but a farmer in the southern states would think himself aggrieved if his land was taxed, whilst the slaves of the slaveholder were not taxed. it was on this account that this species of property was introduced. mr. murray was not struck with the observations of the gentleman last up, so as to say he would ultimately vote for this species of tax; at present, he should vote for a bill to be brought in; but unless he found the bill could reconcile the principle more, and do greater justice in the case than he at present conceived, he should then oppose it. he said, he considered slaves in the southern states as laborers, and unless gentlemen could show him where laborers were taxed, he should not think it right to vote for that part of the bill. he was decidedly in favor of a land tax, but against the other part of the question. mr. m. said, he merely mentioned this that he might not hereafter be charged with inconsistency, in case he should vote against the bill. he repeated, unless provision be made for taxing labor in other parts of the united states, he must vote against this part of the bill if brought in, because the tax would operate very unequally. mr. harper said, though he was entirely opposed to the tax proposed by the resolution, and should vote against the whole, yet he thought it right that a tax on slaves should be introduced with a tax on land; for, as this direct tax was to be raised by apportionment through the states, whether the southern states paid on slaves, or the northern states on land, made no difference in effect; each paid in its own way; one mode was more convenient for the northern, another for the southern, and another for the eastern--no injury was done by this to any other state. mr. g. jackson said, he was against all species of direct taxation, but particularly on this species; and, if a tax on land was carried, he should bring forward a resolution to lay a tax upon all property vested in public securities. he wished for the yeas and nays on this question. the yeas and nays were agreed to be taken. mr. nicholas wondered to hear the observation of his colleague. he should vote for the question, though he and his constituents would be affected by it; but, in the district which that gentleman represented, there were no slaves; and it was therefore his constituents' interest to have a tax on slaves, in order to lighten that on land. mr. g. jackson said, it was not so much on account of the interest of himself or constituents that he opposed this tax, but he objected to it as a capitation tax. mr. moore said, the situation of the southern states had been truly stated. in the western parts, there were few slaves. he said, in the representation to that house, the labor of the negroes had been considered as five to three, with respect to white persons; therefore, the ability of the state to pay was considered in the same proportion. his colleague from the mountains (mr. g. jackson) should consider that, if the holders of slaves were not to pay a portion of the tax imposed on the state of virginia, it would fall very heavy upon his constituents, and those of his colleague, where few blacks were kept. he hoped, therefore, it would pass. mr. jeremiah smith was aware that a tax on slaves would lighten the tax on land in the southern states, and therefore he did not wonder at the representatives from those states wishing it to take place; but, by so apportioning the tax, would not the landholders in the southern states pay less than the landholders in parts of the union where no slaves were kept? he believed they would. a person, for instance, in new hampshire, holding the value of £ , in land, would pay a larger portion of the tax than a holder of land to the same extent in virginia. he believed this would be unjust, and an objection to this mode of taxing the southern states, as, though the tax would fall more equally on them, it would not be so with respect to other states. mr. goodrich said, this tax was introduced into the system for the accommodation of that part of the union where slaves were numerous. a disposition to render the plan as acceptable, in every part of the country, as it could be made, consistently with the interests of the whole, ought to prevail. but, before a tax on slaves was adopted, its operation on the union, and its effects, as it respected different districts, should be considered. a direct tax ought to fall as equally as possible every where; that on land and houses, with their improvements, which had been agreed to, would be laid by a valuation seldom repeated--perhaps, once in ten or fifteen years. the expense of its assessment and collection would be nearly equal throughout the united states; but, with respect to a tax on slaves, there would be required frequent enumerations--at least an annual enumeration. this would be attended with considerable expense, to be defrayed, not by the particular districts, for whose benefit this species of tax was introduced, but by the united states. there was another objection. a land tax was certain--it might, and undoubtedly would, be made a lien on the real estate on which it was laid. it would, be liable to little, if any, loss. not so with a tax on slaves. such a tax, he apprehended, would be uncertain, exposing the revenue to considerable defalcations. if a provision could not be made to place the loss on the districts where it happened, by retaxing them it would operate unequally. he imagined a retaxation for defalcation, if it could be made, would be considered as unjust, and create discontent among the individuals who were subjected to it; and if that could not be done, the deficiency must fall on the union, and would produce uneasiness from its partial effects. he did not know how the detail would be arranged. he had been of the number who were desirous to see the collection-law, before they decided on the resolution before them, so as to have possessed the whole subject. at present, he saw so many difficulties from incorporating this species of tax into the plan, he could not assent to it. mr. nicholas said, he did not understand the objections of the gentleman from new hampshire, (mr. j. smith.) he did not see how he could produce an equal value in land in every part of the union. the tax, he said, would be apportioned according to the number of persons, and not according to the number of acres in any state. if the gentleman from connecticut (mr. goodrich) would rely upon his information, he might be assured that an annual enumeration of slaves would not cost so much as an assessment of land made once in ten years. with respect to the tax being uncertain, he was totally mistaken. it was the most productive tax in the southern states. if the tax was laid wholly upon land, it would be laid on a great part which would be unsaleable, and when a report came to be made of the collection, there would be found great deficiencies; but, with respect to slaves, there would be no failure, because they were a species of property which would always find a ready sale in the southern market. mr. s. smith said, he had heard much on that floor with respect to equality of taxation. it was impossible, he said, to make taxes fall exactly equal; they will fall, in some cases, heavier than in others. he would state a case. when a tax on carriages was under consideration, they found the gentlemen from connecticut voting without scruple, because that state paid only two or three hundred dollars annually, when maryland paid five thousand dollars a year to that duty. there was no equality in this; yet those gentlemen winked at the disproportion. he hoped they would do so in the present case. mr. potter said, if this part of the resolution was agreed to, it was to apportion a tax on the personal property of the southern states, which, no doubt, they would be glad of; and if gentlemen from those states could point out any way by which the personal property of other states could be come at, he would agree to the present proposition; but he believed this could not be done; and, if not, he saw no reason why the personal property of those states should be made to bear a part of the proposed burden, whilst personal property in other states was suffered to go free. it was a hard case, he said, that a man who possessed three or four hundred dollars in land, should be made to pay a portion of the direct tax, whilst men of affluence, who possessed many thousands in public securities, or loaned on interest, should pay nothing. the speaker reminded the house that the question was very much lost sight of; it was not whether a tax should be laid on carriages or personal property, but whether they would agree to the report of the committee of the whole, viz: "that a tax should be laid on slaves, with certain exceptions." mr. henderson said, he should vote against this proposition, because it was a direct tax, as he should vote against every question of that kind, until every source of indirect taxation was exhausted; and he thought this was not the case at present. mr. claiborne said, he thought, also, that direct taxes should not be resorted to until indirect sources were exhausted; but he believed, they were now exhausted, and that direct taxes were the only means left to them of raising money. as he lived in a country which was unfortunately _cursed_ with negroes, he wished the present motion to pass, for the sake of making the tax bear, in some degree, equally in the southern states; but if he thought with his colleague (mr. jackson) that a tax on slaves bore any affinity to a capitation tax, he should also oppose it; but he had no such idea. mr. gallatin said, he would just notice what had fallen from the gentleman from connecticut (mr. goodrich) which was the only thing like argument which had been used against the present proposition. as to what had been said about the quantum of tax falling on different states, or what had been said by the gentleman from rhode island (mr. potter) with respect to the personal property of the eastern states, he did not see how it applied to the present question. if the proposed tax was certain, and the expense of collection would not be greater than would attend the collection of the tax in other states, he did not see any objection to it. the gentleman from connecticut had said, that the expense of an annual enumeration of slaves would be great, and that it would fall upon the united states. he would inform that gentleman and the house, that when no assessment took place, but merely an enumeration, it would be attended with no expense on the collection of the tax. the distinction which he made was, when a valuation and enumeration were both necessary, and when an enumeration alone was necessary. in the first instance, the value of the property was to be ascertained, and the tax laid accordingly; but where an enumeration was only wanted, (the tax per head, according to age, &c., having been settled,) no expense would be incurred. mr. g. said, he spoke from experience. in pennsylvania there was a certain tax on personal property, the taking an account of which did not increase the expense. every three years there was an assessment of personal property, amongst which was slaves; but the enumeration was managed in this way: the collector called twice upon persons--the first time he gave them notice to pay, and took an account of their property, which, consisting of few articles, and the value being already fixed, he could tell them at the time, the amount to be paid at his next call. as to any degree of uncertainty apprehended from this tax, that might be removed by throwing the deficiency, if there should be any, upon the land. he thought, therefore, the objections which had been urged against this tax would be completely obviated. mr. coit allowed, that nothing was more clear than that the manner in which the southern states paid their apportionment of the proposed burden, could make no difference to the northern and eastern states; but the gentleman from pennsylvania (mr. gallatin) allowed there was some weight in the objections, with respect to the assessment and collection of the tax. if he understood that gentleman, he said that the making an enumeration of slaves would make no difference in the expense. he did not know how this could be. if two objects were to do, viz: to value and assess the land, and to enumerate and value the slave, it was new doctrine to him, if these two things would not cost more than if only one had been done; or, if this business would be done for nothing, it would be one of the first things the united states had had done upon those terms. upon the collection, there would also be an additional expense and a probability of loss; the more detail there was in the business, the greater liability to error and loss to the united states; and in proportion to this loss would these states pay less than others. mr. hartley said, he should at present vote for the proposition; but should feel himself at liberty to vote differently on the bill, if he did not approve it. difficulties arose in his mind as to the propriety of taxing personal property in one state and not in another, by which means a bounty seemed to be given on land in the southern states to the amount of the difference of the taxes between the land in those states, and that in other states, upon which purchasers would naturally calculate. this difficulty might probably be removed from his mind; and, therefore, in order to give the whole of the business a fair chance, he should wish the resolutions to go back to the committee of ways and means, to bring in a bill. mr. page did suppose that gentlemen coming from states which were in the habit of collecting direct taxes, would have endeavored to accommodate the business to the situation and circumstances of different states, so as to make the system the most convenient to each. he did suppose that, whenever it should have been determined to enter upon direct taxation, that sums would have been apportioned to each state, and that they would have been left to themselves to have raised the money in the way which they thought most convenient. insuperable objections, however, it seemed, had been found against this system, as appeared from the report of the secretary of the treasury; but it was unreasonable that the northern states should complain that the southern states would pay the tax with greater facility than them. they might, he said, as well complain against the richness of their soil, or the warmness of their climate. with respect to the tax falling lighter on them than on other states, those who held slaves would find it lighter, but those who had none, would not. but he thought it extraordinary that, whilst they were upbraided with holding a species of property peculiar to their country, they should also be upbraided with wishing to pay a duty upon that property. mr. p. said, he did not see what difference it could make to other states, that they raised a part of the tax required of them from slaves. the secretary of the treasury had recommended this mode, the committee of ways and means had reported accordingly; and they were ready to pay a tax for their slaves, in addition to the expense they were at for them already; for, it should be recollected, persons holding slaves, contribute largely to the duties collected from imposts, by the purchase of flannels and cloth, rum, molasses, &c., necessary for their food and clothing. if a person living in a state where slavery did not exist, paid something more for his land, the difference was certainly not equal to the satisfaction he must enjoy in reflecting, that his state was free from that evil. his land, on that account, would be worth three times as much as land of the same quality in the southern states. why, then, do gentlemen complain? the southern states themselves might have objected to this tax; they might have doubted the constitutionality of it; indeed, he did doubt it, but he had agreed to it; and he believed there was no better way of making the tax go down in those states, than by the present measure. for his own part, mr. p. said, he wished he lived where there was no slavery; and if he could find a climate he liked as well, he would change his situation on that account. mr. brent said, it was a very extraordinary thing that gentlemen who represented states where there were no slaves, should oppose a tax on that species of property, and that the southern states where slavery existed, should be advocating that tax. by the report of the secretary of the treasury, there appeared a deficiency of revenue, and in order to supply that deficiency, they had determined to have recourse to direct taxation; and, after the amount which each state ought to furnish, had been ascertained, he thought it should have been left to the different states to have raised the money from such funds as they judged best, provided they had been secure. this, he thought, would only have been liberal and proper. it had, however, been determined otherwise; but, from a knowledge that, by introducing land and slaves together, as objects of taxation, the tax would be more equally levied in the southern states, if that plan had been adopted. and, surely, he said, it could have given no satisfaction to any other state, that, by laying a tax on land only, it should have operated in a very oppressive manner in some parts of the southern states, and scarcely have been felt at all in other parts of those states; and yet, this would appear to be the opinion of the gentleman from new hampshire; for, he said, if this law passed, a person possessing landed property in new hampshire, of the value of £ , , would pay more than a landholder to that amount in the southern states. and was this, he asked, a subject of regret? if the state of virginia paid the amount required of her in a manner which bore most equally upon the whole of her citizens, ought that to displease the citizens of other states? he thought not. he was of opinion, that it would be a desirable thing that the tax should be found to fall equally on the citizens of every state. another objection, produced by the gentleman from connecticut (mr. goodrich) was that a tax on this species of property would not be so secure as a tax on land. if that gentleman had been acquainted with the situation of the southern states, he would have known that slaves formed the most certain fund of those states; for, whilst their wide and extensive waste lands would not command any price, slaves were always ready sale. hence it arose, that the states were not able to raise a tax on land, whilst a tax on slaves had never failed to be productive. with respect to the inconvenience or expense attending a tax on slaves, in virginia, he said, no expense would be necessary; because it was the custom of that state to take annually, a list of their slaves, which was regularly recorded in the archives of the state. if gentlemen were, therefore, so economical that they would not expend a few of the public pence to get a list of this property, let them recur to the document he had mentioned, which might be done without expense. to those who know the situation of the southern states, the remarks made by the gentleman from pennsylvania (mr. gallatin) must have been irresistibly impressive. almost the whole of the lower part of the country possessed property of this kind, whilst the upper parts had scarcely any. if a tax was, therefore, imposed upon land only, the upper part of the country would be extremely aggravated, and would murmur, and they would murmur with justice. gentlemen from the eastern states called upon the representatives of the southern states to point out a mode by which they might come at the personal property of their states. but, he would ask them, if, independent of land with its improvements, they possessed any other species of property which could not be eluded? he believed they could not point it out; why, then, call upon gentlemen from the southern states to do, what they, who certainly knew best their own resources, were unable to do? the gentlemen from the southern states, he said, had discovered those objects which they thought best able to bear the burden; and if the representatives of the other states were not satisfied with the tax on land, let them come forward and say what other property they have equally secure, upon which a tax may be laid. it was a phenomenon, he would again say, that the representatives of states where slavery existed, should be contending for a tax upon slaves, and that members from states where slavery was not tolerated, were opposing it. he could not help believing that the real object of gentlemen had not been avowed. it was something hidden and unseen.[ ] mr. kittera said, that the opposers of this part of the resolution were the opposers of a direct tax altogether. it was observable that those upon whom the tax would fall, did not complain. it was extraordinary that the complaints should come from another quarter. as to the objections of his colleague (mr. hartley) that part of the tax being laid on slaves in the southern states, would affect the value of land, it would make no difference whether the tax was on land or slaves, as it affected land, its operation would be the same. it was therefore no solid objection against the resolution. on the question, that the house do agree to the last part of the said resolution, in the words following, to wit: "a tax on slaves, with certain exceptions;" it was resolved in the affirmative--yeas , nays , as follows: yeas.--fisher ames, abraham baldwin, thomas blount, theophilus bradbury, richard brent, daniel buck, samuel j. cabell, gabriel christie, thomas claiborne, isaac coles, william cooper, william craik, james davenport, george dent, george ege, william findlay, abiel foster, jesse franklin, albert gallatin, james gillespie, nicholas gilman, henry glenn, christopher greenup, andrew gregg, william b. grove, wade hampton, george hancock, robert goodloe harper, carter b. harrison, thomas hartley, john hathorn, jonathan n. havens, william hindman, james holland, andrew jackson, john wilkes kittera, matthew locke, samuel lyman, samuel maclay, nathaniel macon, james madison, john milledge, andrew moore, frederick a. muhlenberg, william vans murray, anthony new, john nicholas, alexander d. orr, john page, josiah parker, john patton, francis preston, robert rutherford, samuel sewall, samuel sitgreaves, israel smith, isaac smith, samuel smith, william smith, richard sprigg, jr., william strudwick, john swanwick, john e. van allen, philip van cortlandt, abraham venable, peleg wadsworth, john williams, and richard winn. nays.--nathan bryan, dempsey burges, joshua coit, samuel w. dana, henry dearborn, dwight foster, nathaniel freeman, jr., chauncey goodrich, roger griswold, thomas henderson, george jackson, william lyman, francis malbone, elisha r. potter, john read, john s. sherburne, jeremiah smith, nathaniel smith, zephaniah swift, george thatcher, richard thomas, mark thompson, and joseph b. varnum. and then the main question being taken, that the house do agree to the resolution, as reported by the committee of the whole house, it was resolved in the affirmative--yeas , nays . _ordered_, that the committee of ways and means do prepare and bring in a bill or bills, pursuant to the said resolution. monday, january . thompson j. skinner, from massachusetts, in place of theodore sedgwick, appointed a senator of the united states, appeared, produced his credentials, was qualified, and took his seat in the house. friday, january . _appropriations for ._ the house then resolved itself into a committee of the whole, on the subject of appropriations for the year , when the article which relates to the contingent expenses of the two branches of the legislature, amounting to twelve thousand dollars, being read, mr. baldwin said, he had often before made the remark, (and he thought it not unseasonable now to repeat it,) that the house was too apt to be merely formal and superficial in passing on the general estimate for the year. he was sorry to observe that this item had within this year or two been considerably increased; he believed the price of wood, stationery, and other articles purchased for the session, was now much the same as in , though the printer's bill might be higher; yet, as the session would be but three months, he thought the sum allowed for would be sufficient. he had always thought this charge for the contingencies of the two houses, one of the strongest instances of that kind of loose economy which it has been complained, and perhaps with too much justice, pervades all the operations of the federal government--we have often been reminded that, to make an expedition into the woods to an indian town, or to build a frigate, or to coin one hundred tons of copper, costs us a great deal more than it ever did any other government in this country. if this is a strong instance of that style of economy, let us begin the reformation with ourselves, and not be so prodigal this year in our contingent expenses; our circumstances call on us for greater attention to economy. he was sensible the place for correcting these evils was ordinarily on passing the law authorizing the expense, and not on the appropriation for the payment of it; but this item, and many others, depended on no law--changing the sum in the estimate will control the expense. if any one will take the trouble of looking over the vouchers on which these accounts have been settled for past years, he will see that there is room for more economy. one branch of the legislature consists of about thirty members--four thousand dollars is a great sum for the purchase of their wood, quills, and paper, and for furnishing them with copies of business under consideration. is it possible that twelve thousand dollars can be necessary for the two houses? the whole yearly expenses of some of the state governments do not amount to a much greater sum--he hoped this would be struck out, and the sum which was allowed for , and some preceding years, be inserted. mr. smith presumed the estimate was founded upon information received from the secretary of the senate and the clerk of that house. he did not conceive it would make any difference in the expenditure, whether a larger or smaller sum be appropriated; as he did not suppose the senate or that house would print the less because a less sum was appropriated. the gentleman, he said, might, by his speech, give an idea to the public, that this would be a saving of so much money; but it would, in reality, make no difference. after a few observations from other members, the question was put and negatived-- to . the committee then rose, and had leave to sit again. and the house adjourned till monday. monday, january . george leonard, from massachusetts, appeared, and took his seat. _manumitted slaves._ [mr. swanwick presented the petition of jacob nicholson and jupiter nicholson, job albertson and thomas pritchet, dated at philadelphia, stating that they had been the slaves of persons in perquimans county, north carolina, who had manumitted them, and whose surname they took--that afterwards they had been seized by other persons and sold into slavery under a law of the state--that to escape from this bondage they had fled to philadelphia, where they had been seized under the fugitive slave act: and pray relief from congress.] the petition being read-- mr. swanwick said, he hoped it would be referred to a select committee. mr. blount hoped it would not even be received by the house. agreeably to a law of the state of north carolina, he said they were slaves, and could, of course, be seized as such. mr. thatcher thought the petition ought to be referred to the committee on the fugitive law. he conceived the gentleman much mistaken in asserting these petitioners to be absolute slaves. they state that they were slaves, but that their masters manumitted them, and that their manumissions were sanctioned by a law of that state, but that a subsequent law of the same state, subjected them to slavery; and if even there was a law that allowed them to be taken and sold into slavery again, he could not see any propriety in refusing their petition in that house--they certainly (said mr. t.) are free people. it appeared they were taken under the fugitive act, which he thought ought not to affect them; they now came and prayed the house so to model that fugitive act, as to prevent its affecting persons of their description. he therefore saw great propriety in referring their petition to the committee appointed to amend that act in another part; they could as well consider its relation to the present case. he could not see how there would be a propriety in rejecting their petition; they had an undoubted right to petition the house, and to be heard. mr. swanwick was surprised at the gentleman from north carolina (mr. blount) desiring to reject this petition; he could not have thought, nor could he indulge the suspicion now, that the gentleman was so far from acknowledging the rights of man, as to prevent any class of men from petitioning. if men were aggrieved and conceive they have claim to attention, petitioning was their sacred right, and that right should never suffer innovation; whether the house ought to grant, was another question. the subject of their petition had a claim to the attention of the house. they state they were freed from slavery, but that they were much injured under a law of the united states. if a law was ever made that bore hard on any class of people, mr. s. hoped that the door would never be shut to their complaints. if the circumstance respecting these people was as they stated, their case was very hard. he animadverted on the atrocity of that reward of ten dollars offered for one of them if taken alive, but that fifty should be given if found dead, and no questions asked. was not this, he said, encouragement to put a period to that man's existence? horrid reward! could gentlemen hear it and not shudder? mr. blount said, the gentleman last up was mistaken in calling the petitioners free men; the laws of north carolina, as he observed before, did not suffer individuals to emancipate their slaves, and he should wish to know what evidence there was to prove these men free, and except that was proved, the house had no right to attend to the petition. mr. sitgreaves, in answer to the gentleman last up, said he would reverse his question, and ask what evidence he had to prove that these men are not freemen; can he prove they are slaves? they have stated that a law has been made in north carolina with a view to affect their case, and bring them again into a worse slavery than before; they want to know whether they cannot obtain relief by their application to the government of the united states. under these circumstances, mr. s. wished to know why their petitions should not be taken into consideration? was there any thing in these men, he asked, that should prevent every kind of assistance being bestowed on them? had they not an equal right to be heard with other petitioners? he hoped the house would not only give them a hearing, but afford them all the consolation of which their unfortunate case was susceptible. if the house were obliged, through a want of power to extend to the case, to object compliance with the prayers, yet, he hoped it would be done with all due tenderness; before hearing them, he thought it would be exceedingly unjust to decide. these people may produce documents sufficient to obtain favorable attention; therefore, it was impossible before they were heard to conceive whether the house could constitutionally grant relief or not. he could see no impropriety in referring it; the object of referring a case, was to inquire into facts; thus, the committee prepared the way for discussion in the house; and why the house should refuse to deliberate and discuss this case, he knew not. mr. heath was clearly convinced these people were slaves, and therefore hoped their petition would lie on the table. he would remind the gentleman that, if they undertook this business, they would soon have petitions enough of the same kind, and public business would be thereby prevented. it appeared to him to be more within the jurisdiction of the legislature of that state; indeed, the united states had nothing to do with it. mr. madison said, he should be sorry to reject any petition whatever, in which it became the business of the house to attend; but he thought this case had no claim on their attention. yet, if it did not come within the purview of the legislative body, he thought, it might be suffered to lie on the table. he thought it a judicial case, and could obtain its due in a court of appeal in that state. if they are free by the laws of north carolina, they ought to apply to those laws, and have their privilege established. if they are slaves, the constitution gives them no hope of being heard here. a law has been passed to prevent the owners of those slaves emancipating them; it is therefore impossible that any relief can be granted. the petitioners are under the laws of north carolina, and those laws cannot be the interpreters of the laws of the united states. mr. sitgreaves said, he was not prepared to deny that this petition is in the situation the gentleman from virginia (mr. madison) states; nor was he prepared to prove that it came under the power of the general government; but he could see no kind of reason why it should not be sent to a committee who should examine the case and report whether it required legislative interference, or whether it was a subject of judicial authority in the country whence the petitioners came. many petitions, he said, were sent to the house, who referred them for investigation to a committee, and many had been reported as being under judicial power only, and as such been rejected here. if this underwent the same order, and should be found to be of a judicial nature, the committee would report so, and the house would honorably refuse it. this he thought the only just method. mr. rutherford concurred with the gentleman from pennsylvania, that this memorial ought to be referred to a committee who would report whether these people had been emancipated, according to a law of the state of north carolina, or not. the circumstances attending this case, he said, demanded a just and full investigation, and if a law did exist either to emancipate, or send these poor people into slavery, the house would then know. he doubted not, every thing just and proper would be done, but he hoped every due respect would be paid to the petition. in short, he was assured every member in the house would wish to act consistently. this case, from the great hardships represented in the petition, applied closely to the nicest feelings of the heart, and he hoped humanity would dictate a just decision. mr. gilbert hoped the petition would be referred to the committee proposed; he thought it laid claim to the humanity of the house. he thought every just satisfaction should be given, and attention paid, to every class of persons who appeal for decision to the house. mr. w. smith said, the practice of a former time, in a similar case, was, that the petition was sealed up and sent back to the petitioners, not being allowed even to remain on the files of the office. this method, he said, ought to be pursued with respect to the present petition. it was not a matter that claimed the attention of the legislature of the united states. he thought it of such an improper nature, as to be surprised any gentleman would present a petition of the kind. these men are slaves, and, he thought, not entitled to attention from that body; to encourage slaves to petition the house would have a tendency to invite continual applications. indeed it would tend to spread an alarm throughout the southern states; it would act as an "entering-wedge," whose consequences could not be foreseen. this is a kind of property on which the house has no power to legislate. he hoped it would not be committed at all; it was not a proper subject for legislative attention. he was not of the opinion of some gentlemen, that the house were bound to sit on every question recommended to their notice. he thought particular attention ought to be paid to the lateness of the session; if this subject were to be considered, too much time of the house would be devoured which was much wanted on important business. mr. thatcher said, he was in favor of referring this petition. he could see no reason which had been adduced to prove the impropriety of receiving a petition from these people. the gentleman from north carolina (mr. blount) is of the opinion that these people being slaves, the house ought not to pay attention to their prayer. this, he said, was quite new language--a system of conduct which he never saw the house practise, and hoped he never should. that the house should not receive a petition without an evidence to prove it was from a free man. this was a language which opposed the constitutional freedom of every state where the declaration of rights had been made; they all declare that every man is born equally free, and that each has an equal right to petition if aggrieved--this doctrine he never heard objected to. the gentlemen from virginia (mr. madison and mr. heath) had said, it was a judicial and not a legislative question; they say the petition proves it, and that it ought not to be attended to. mr. t. said, he saw no proof whatever of the impropriety of the house receiving it. there might be some judicial question growing out of the case; but that was no reason, because it might possibly undergo a judicial course, that the general government were not to be petitioned. the gentleman from south carolina (mr. smith) had said, "that this was a kind of property on which the house could not legislate;" but he would answer, this was a kind of property on which they were bound to legislate. the fugitive act could prove this authority; if petitions were not to be received they would have to legislate in the dark. it appeared plainly that these men were manumitted by their masters; and because a number of men who called themselves legislators should, after they had the actual enjoyment of their liberty, come forward and say that these men should not remain at liberty, and actually authorize their recaptivity, he thought it exceedingly unjust to deprive them of the right of petitioning to have their injuries redressed. these were a set of men on whom the fugitive law had no power, and he thought they claimed protection under the power of that house, which always ought to lean towards freedom. though they could not give freedom to slaves, yet he hoped gentlemen would never refuse to lend their aid to secure freemen in their rights against tyrannical imposition. mr. christie thought no part of the fugitive act operated against freedom. he thought no good could be derived from sending the petition to a committee; they could not prove whether they were slaves or not. he was much surprised any gentleman in the house should present such a petition. mr. c. said, he was of the same opinion with the gentleman from south carolina (mr. smith) that the petition ought to be sent back again. he hoped the gentleman from pennsylvania (mr. swanwick) would never hand such another petition into the house. mr. holland said, the gentleman from massachusetts (mr. thatcher) said, "the house ought to lean towards freedom." did he mean to set all slaves at liberty, or receive petitions from all? sure he was, that if this was received, it would not be long before the table would be filled with similar complaints, and the house might sit for no other purpose than to hear them. it was a judicial question, and the house ought not to pretend to determine the point; why, then, should they take up time upon it? to put an end to it he hoped, it would be ordered to lie on the table. mr. macon said, he had hearkened very closely to the observations of gentlemen on the subject, and could see no reason to alter his desire that it would not be committed. no man, he said, wished to encourage petitions more than himself, and no man had considered this subject more. these men could not receive any aid from the general government; but by application to the state, justice would be done them. trials of this kind had very frequently been brought on in all the different courts of that state, and had very often ended in the freedom of slaves; the appeal was fair, and justice was done. mr. m. thought it a very delicate subject for the general government to act on; he hoped it would not be committed; but he should not be sorry if the proposition of a gentleman (mr. smith) was to take place, that it was to be sent back again. mr. w. smith observed, that a gentleman (mr. thatcher) had uttered a wish to draw these people from their state of slavery to liberty. mr. s. did not think they were sent there to take up the subject of emancipation. when subjects of this kind are brought up in the house they ought to be deprecated as dangerous. they tended to produce very uncomfortable circumstances. mr. varnum said, the petitioners had received injury under a law of the united states, (the fugitive act) and not merely a law of north carolina, and therefore, he thought, they had an undoubted right to the attention of the general government if that act bore hard on them. they stated themselves to be freemen, and he did not see any opposition of force to convince the house they were not; surely it could not be said that color alone should designate them as slaves. if these people had been free, and yet were taken up under a law of the united states, and put into prison, then it appeared plainly the duty of the house to inquire whether that act had such an unjust tendency, and if it had, proper amendments should be made to it to prevent the like consequences in future. it required nothing more under that act than that the person suspected should be brought before a single magistrate, and evidence given that he is a slave, which evidence the magistrate could not know if distant from the state; the person may be a freeman, for it would not be easy to know whether the evidence was good, at a distance from the state; the poor man is then sent to his state in slavery. mr. v. hoped the house would take all possible care that freemen should not be made slaves; to be deprived of liberty was more important than to be deprived of property. he could not think why gentlemen should be against having the fact examined; if it appears that they are slaves, the petition will of course be dismissed, but if it should appear they are free, and receive injury under the fugitive act, the united states ought to amend it, so that justice should be done. mr. blount said, admitting those persons who had been taken up were sent back to north carolina, they would then have permission to apply to any of the courts in the state for a fair trial of their plea; there are very few courts in which some negroes have not tried this cause, and obtained their liberty. he agreed with the gentleman from massachusetts, on the freedom of these men to procure their rights; it did not appear to him that they were free; true they had been set free, but that manumission was from their masters, who had not a right to set them free without permission of the legislature. mr. kitchell could not see what objection could obtain to prevent these people being heard. the question was not now, whether they are or are not slaves, but it is on a law of the united states. they assert that this law does act injuriously to them; the question is, therefore, whether a committee shall be appointed to inquire on the improper force of this law on the case of these men; if they are freemen, he said, they ought not to be sent back from the most distant part of the united states to north carolina, to have justice done them, but they ought to receive it from the general government who made the law they complain of. mr. k. said, he had not examined the force of the law on the subject, and was not prepared to decide; there could be no evil in referring it for examination; when the committee would report their opinion of the subject and gentlemen be prepared to act on it. on the question for receiving the petition being put, it was negatived--ayes , noes .[ ] tuesday, february . thomas sprigg, from maryland, appeared, and took his seat. _increase of salaries._ a bill was also received from the senate for increasing the compensation of the members of the legislature and certain officers of government; which was read, and, on motion that it be read a second time, it was carried, to . it was accordingly read a second time. the bill contemplates an advance of $ , to the present salary of the president of the united states, and $ , to the vice president, to commence on the th of march next, and continue for four years; and that the members of the senate and house of representatives, the secretary of state, the secretary of the treasury, the secretary of war, attorney general, postmaster general, assistant postmaster general, comptroller of the treasury, auditor, register, commissioner of the revenue, accountant of the war department, the secretary of the senate, the clerk of the house of representatives, and the principal clerks employed by them, the sergeant-at-arms of the house of representatives, the door-keepers and assistant door-keepers of both houses, have an advance of per cent. upon their present compensation. mr. parker moved that the further consideration of this bill be postponed till the first monday in december next. he said they had lately had the subject of augmenting the salaries of all the officers here mentioned, except the president and vice president and themselves, under consideration; and as they had resolved to refuse an advance to others, he trusted they should also refuse it to themselves. he thought the present an improper time to go into the subject. mr. hartley wished the gentleman would consent to some day next week. he could not say he was ready to agree to the whole of the advances proposed, but he wished the subject to be taken into consideration, and perhaps by the time he had mentioned they might have some further information on the subject of our finances. mr. macon said, the most regular way for the gentleman from virginia to obtain his object, would be to move to have the bill committed to a committee of the whole, and made the order of the day for the th of march. mr. parker made that motion. mr. hartley hoped this motion would not be agreed to, as it was a sort of manoeuvre to get rid of the subject, which he did not approve. he would either have the bill negatived at once, made the order of some day in the present session, or postponed till the next. mr. ames said gentlemen had no doubt a right to govern their own votes according to their own notions of propriety. no man had a right to prescribe to another. his conscience was no rule to any other man. but he thought he was authorized to say, they neither had nor claimed a right to do a right thing in a wrong way. to agree to the motion proposed, would be an insincere way of putting a negative upon the bill. he trusted gentlemen who wished this would do it in a more direct way. the compensation of the president and vice president could not be augmented, he said, after they had entered upon their office; and to say they would take up the subject for consideration at a time when their powers would not exist, was an evasive manner, which he approved not. it was an easy thing for gentlemen to say _no_ on the question, without taking this circuitous way of putting an end to the subject. mr. venable thought the view of his colleague would be answered as well by a postponement to the d of march as to the th, and it would be more orderly. nor did he think this way of disposing of the business called for the censure which the gentleman from massachusetts had thrown upon it. it was a question upon which that house had already decided by a considerable majority. no new light had been thrown upon the subject, and he thought it by no means disrespectful to postpone it. it was well known that the effect of this motion would be a postponement for the present session. this was what he wished; and if his colleague would consent to alter his motion to the d of march, he should not hesitate to vote for it. mr. parker had no objection to the motion standing for the d of march, though he did not consider the motions for the first monday in december or the th of march as unparliamentary. he thought the salaries of the president and vice president high enough. the salaries of some of their public officers might at present be somewhat too low, but the time would soon come when the price of living would become lower, and then they would be fully adequate; and therefore he did not wish to see them advanced at present. mr. buck was opposed to putting off the question till the time contemplated by the present motion. to get rid of the subject in such a way, would be descending from that state of independence which they ought to preserve, and would have the appearance of a slight cast upon another branch of government. if they were prepared to meet the question, they might as well meet it now as then. to agree to the motion proposed, would show a degree of cowardice, and effectually put it out of their power to consider and determine upon the subject. the senate, he said, had found sufficient reason to originate this bill, and he thought, if it were only out of complaisance to them, the subject should not be treated in the way proposed. it was said that this subject had already been decided, but he did not think so. there had been no general proposition for augmenting compensation. they had had the subject under view partially, but he knew there were some members (he knew of one at least) who voted against any partial advance, because they thought it should be general. this was his motive. he thought all the officers of government were upon an equal footing, and therefore he voted against advancing the salary of one and not of another--not because he thought they were already sufficiently compensated; he did not think they were. he wished, therefore, the subject for a general augmentation to come under discussion. if he should be convinced an advance was improper, he should give it up, and should be against putting the subject off to a time when it could not be considered. mr. hartley again urged the propriety of postponing for a shorter period: he mentioned the th instant. mr. macon said he was opposed to the bill _in toto_, and he considered the motion of the gentleman from virginia as meant to try the question. he wished it to stand for the th of march, as at first proposed, because, if it stood for the d, the subject might be called up and acted upon on the last day of the session. he should therefore renew the th of march, because, if there were a majority who wished the bill to be rejected, it was desirable that as little time as possible should be lost upon the subject. the question for postponing till the th of march was put and negatived, to . mr. parker then moved to have it postponed till the d of march. mr. henderson thought it more proper to postpone till the d than till the th. he was ready, he said, to meet the question, either in a direct or indirect way. he had made a calculation, and found that the advances proposed would amount to from $ , to $ , . mr. h. believed our finances were not in a state to admit of this addition to our expenses; besides, he trusted every necessary of life would soon be reduced in price, so as to render any advance of salary to our officers unnecessary. the question was put and negatived, to . on motion of mr. hartley, friday week was proposed and negatived, there being only votes for it. mr. gallatin moved that the subject should be made the order for this day. he said he had voted for postponing it till the th of march, with a view of getting rid of it; but since it must be considered, he wished it to be disposed of as soon as possible. mr. sitgreaves proposed that it be made the order of the day for monday. the sense of the house was first taken for monday and negatived, there being only votes for it. it was then put for this day and carried, there being votes for it. wednesday, february . _election of president._ the speaker informed the house that the hour was come at which they had appointed to meet the senate, for the purpose of counting the votes for, and declaring the election of a president and vice president of the united states, and that the clerk would inform the senate they were ready to receive them. the clerk accordingly waited upon the senate, and the president and members of the senate soon after entered and took their seats, the president on the right hand of the speaker of the house of representatives, and the members of the senate on the same side of the chamber; when the president of the senate (mr. adams) thus addressed the two houses: _gentlemen of the senate and of the house of representatives_: the purpose for which we are assembled is expressed in the following resolutions. [mr. adams here read the resolutions which had been adopted by the two houses relative to the subject.] i have received packets containing the certificates of the votes of the electors for a president and vice president of the united states from all the sixteen states of the union: i have also received duplicates of the returns by post from fifteen of the states. no duplicate from the state of kentucky is yet come to hand. it has been the practice heretofore, on similar occasions, to begin with the returns from the state at one end of the united states, and to proceed to the other; i shall therefore do the same at this time. mr. adams then took up the packet from the state of tennessee, and after having read the superscription, broke the seal, and read the certificate of the election of the electors. he then gave it to the clerk of the senate, requesting him to read the report of the electors, which he accordingly did. all the papers were then handed to the tellers, viz: mr. sedgwick, on the part of the senate, and messrs. sitgreaves and parker on the part of the house of representatives; and when they had noted the contents, the president of the senate proceeded with the other states, in the following order: for john adams. north carolina, virginia, maryland, delaware, pennsylvania, new jersey, new york, connecticut, rhode island, massachusetts, vermont, new hampshire, -- for thomas jefferson. tennessee, kentucky, georgia, south carolina, north carolina, virginia, maryland, pennsylvania, -- for george washington. north carolina, virginia, -- for thomas pinckney. south carolina, north carolina, virginia, maryland, delaware, pennsylvania, new jersey, new york, connecticut, massachusetts, vermont, -- for aaron burr. tennessee, kentucky, north carolina, virginia, maryland, pennsylvania, -- for samuel adams. virginia, for oliver ellsworth. rhode island, massachusetts, new hampshire, -- for samuel johnston. massachusetts, for james iredell. north carolina, for john jay. connecticut, for george clinton. georgia, virginia, -- for charles cotesworth pinckney. north carolina, for john henry. maryland, all the returns having been gone through, mr. sedgwick reported that, according to order, the tellers appointed by the two houses had performed the business assigned them, and reported the result to be as above stated. the president of the senate then thus addressed the two houses: _gentlemen of the senate and of the house of representatives_: by the report which has been made to me by the tellers appointed by the two houses to examine the votes, there are votes for john adams, for thomas jefferson, for thomas pinckney, for aaron burr, for samuel adams, for oliver ellsworth, for george clinton, for john jay, for james iredell, for george washington, for john henry, for samuel johnston, and for charles c. pinckney. the whole number of votes are ; votes, therefore, make a majority; so that the person who has votes, which is the highest number, is elected president, and the person who has votes, which is the next highest number, is elected vice president. the president of the senate then sat down for a moment, and rising again, thus addressed the two houses: in obedience to the constitution and law of the united states, and to the commands of both houses of congress, expressed in their resolution passed in the present session, i declare that john adams is elected president of the united states, for four years, to commence with the fourth day of march next; and that thomas jefferson is elected vice president of the united states, for four years, to commence with the fourth day of march next. and may the sovereign of the universe, the ordainer of civil government on earth, for the preservation of liberty, justice, and peace, among men, enable both to discharge the duties of these offices conformably to the constitution of the united states, with conscientious diligence, punctuality, and perseverance. the president and members of the senate then retired, and the house came to order; when mr. sitgreaves made a report on the business, which was read and ordered to be entered on the journals. thursday, february . _election of president._ mr. sitgreaves, from the joint committee appointed to confer with a committee of the senate on the subject of the election of a president and vice president, made a further report, viz: that they had agreed with the committee of the senate to recommend to the house of representatives the following resolution: "_resolved_, that the clerk of this house be directed to give, by letter, to the vice president elect, a notification of his election." this resolution was agreed to; but some time afterwards, mr. parker (one of the committee) wished it to be rescinded, as he understood, though the committee from the senate had concurred in this mode of notifying the vice president of his election, the senate would not agree to it, but wished to follow the mode adopted on a former occasion, viz: a message was sent from the house of representatives to the senate, directing that the persons elected should be notified in such a manner as they should direct. he wished, therefore, to prevent delay, the resolution might be rescinded and a different one agreed to. this motion occasioned a good deal of conversation. it was observed by the speaker that the resolution was already before the senate, (where it seemed it was not intended to be sent, as it was a distinct resolution of that house, a similar one to which was proposed for the adoption of the senate by the joint committee.) it was at length, however, agreed to be rescinded. immediately after which a message was received from the senate, informing the house that they had disagreed to the resolution, and appointed a committee of conference. the house accordingly took up the message, and also agreed to appoint a committee of conference. _compensation to public officers._ mr. parker then renewed his motion, and the house resolved itself into a committee of the whole on the bill respecting compensations, mr. muhlenberg in the chair; when mr. parker moved to strike out the first clause. he thought it necessary to make some additional allowance to the president, but he would do it in a different way from that proposed. when the present president came into office, he said, he had a quantity of furniture presented him, which might now be nearly worn out, and be of little value. it might be proper, therefore, to purchase new furniture for the gentleman just elected. it would be also during the period of the present presidency that government would remove to the federal city, which would be attended with a good deal of expense to the president. he should wish, therefore, that a provision should be made for defraying that expense, and also for the purchasing of new furniture, but he should be opposed to the making of any addition to the salary at present. mr. hartley spoke in favor of retaining the clause. mr. r. sprigg said he should vote against the proposed advance of salary, and could not consent to any other mode of augmenting the present compensation allowed to the president. he could by no means agree to the plan proposed by the gentleman from virginia; for, if they were to renew the furniture of the president every four or eight years, it would be found a pretty expensive business. that gentleman had also mentioned the removal of the government, as taking place during the next presidency; but, he said, the new election would happen about the time of removing the government, and provision for paying that expense might be made at that time. he thought the salaries were already sufficiently high, and that it would be with difficulty that money was found to pay the present expenses of government. mr. williams was of opinion, on the score of economy, that it would be better to advance the compensation of the president in the way proposed by the present bill, and let him purchase his own furniture, than to purchase new furniture, which, perhaps, when the government was removed, would not be suitable for his house in the federal city. mr. w. said he was one of the committee on the subject of compensation, and they endeavored to ascertain whether the twenty-five thousand dollars allowed to the president were an adequate compensation. it was generally believed it was not. they ought, he said, to enable their first magistrate to live in a style becoming his situation. all their executive officers should receive such salaries as would enable them to see company agreeably to their rank, otherwise the respectability attached to those offices would suffer greatly in the public opinion. he hoped, therefore, the section would not be struck out. mr. buck said, as the motion now made was to try the principle, it would be well to go into an examination of the subject. he said he had never been a champion for raising salaries, or a stickler for lowering them; but, as the subject was brought before them, he should cheerfully declare his sentiments upon it. he conceived the true question to be, whether it was right and just that they should augment the salaries of the officers of government and the members of the legislature, or whether the present compensations were just and adequate to the sacrifices which they made in undertaking the business of government. because he did not believe, with some other gentlemen, that they were to estimate the compensations of their officers in proportion as money was scarce or plentiful in the treasury, nor did he believe there was a real distress in government for want of money; but their difficulties arose from a difference of opinion in that house on the mode of raising money. he believed there were persons who thought government squandered away the public money; that its officers divided the loaves and fishes amongst them; and that the only way in which this profusion of expense could be checked was by pursuing a system of direct taxation, which would make the people feel the amount which they contributed to the support of government. he should not undertake to examine this principle, nor deny that such facts might exist. it would be enough to look at existing circumstances in our country, and see how far they would apply. our government, he said, rested on public sentiment for support, and must always be regulated by it. he was willing, he said, to go all lengths with gentlemen in adopting a system of taxation calculated to raise a permanent revenue. nor was he apprehensive for the result, when dictated by reason and justice. contemptible must be that state of government, said mr. b., where its public officers are starved for want of a proper spirit in the people to support them. is america, said he, arrived at this melancholy state? if she were, god forbid she should ever experience another revolution! is this all our boasted acquisition, in return for the struggle we have made for our country? no; he denied the fact. america was not reduced to that state which will not allow her to pay the expenses of her government, nor is she unwilling to pay them; neither is public sentiment so debased as not to approve of any measure which shall be taken to secure a handsome maintenance for our officers. there was no occasion for hypocrisy in the business; he was willing to state the whole truth plainly to his constituents. he should not think of telling them they were giving too high salaries for their officers, when he knew, that, owing to their insufficiency, they were diminishing their own private fortunes. nor did he wish to intrench on his own property in serving the public; he believed there was no occasion for this. he should, therefore, speak plainly to them. mr. b. said, he would inquire whether the present salaries were a reasonable and just compensation for the services performed? in respect to the president of the united states, it was said that he had already a large salary. he knew that twenty-five thousand dollars had a great sound in the ears of many, but he trusted the people of the united states not only possessed just views of government, but that they also possessed virtue to support the just measures of government, and would not consent that their executive officers should be placed on such a footing as to be looked down by officers from foreign countries who moved in a lower sphere. therefore, when they looked into the reason of the thing, and found their present salaries were unequal to their support, not in the style of splendor observed in foreign courts, but according to the manner of living in philadelphia, would they not be willing to increase them? he believed they would. the present president, he said, was a man of fortune, and never took from the government more than would support his table, either during the war or during his presidency. and what, he asked, did these expenses amount to? to the whole sum allowed him by law. but were they always to expect to have a president who would give his services to his country? or had the president set a bad example, by living in a style of extravagance and splendor? he believed this was not the opinion of americans, or that of foreign countries. if, then, the present president had lived upon his own fortune, and the whole of his compensation had gone to defray the expenses of his table, if this compensation was not advanced, how were future presidents to come forward, to support the same style? they could not do it without infringing on their own fortunes. and do the citizens of the united states, he asked, wish their first magistrate to be placed in this situation? he could not think so. he believed they meant to make ample provision for his support; and if the present provision was found inadequate, they would condemn their representatives; they would say they did not support the dignity of their country, if they neglected to advance it. the same observations, mr. b. said, would apply to the vice president, and to other officers of government. he did not wish the salaries of their officers to be such as should enable them to make fortunes out of them, but he would have them sufficient to afford a handsome living. were they so at present? he believed not. it had been said, the other day, that they could not afford to live in the same style with persons who stood on the same footing with them before they went into office. he could not say whether they were obliged to intrench on their own private fortunes; if it was so, he asked if it were reasonable or just that they should be so placed? it certainly was not; and, therefore, convinced as he was that the people of the united states were willing and able to support the expenses of their government, and that they wished their officers to have a just and reasonable compensation, which should not only enable them to make a respectable appearance in the eyes of their own citizens, but in those of foreigners, he should have no scruples in giving his consent to the advances proposed. as to the compensation allowed to the members of that house, here he had knowledge; he could speak from experience. he could say that he had diminished his income one thousand dollars a year since he had a seat in that house. did his constituents, he asked, wish this? he believed not. they did not wish him to intrench on his private fortune while he was serving them. they did not expect him to squander away their money in profusion, nor did he; he lived in the most economical style; but they wished his reasonable expenses to be paid. besides, said mr. b., were the rates of compensation, when first established, established upon this principle? he thought not. they were then thought to be a just and reasonable compensation; and, if it was not then unreasonable, it could not now be reasonable. was it right, he asked, when every kind of labor was higher by one third or one-half than at that time, that the compensations allowed to persons employed by government should remain stationary? he could not conceive that this was either just or proper, or that the citizens of the united states wished it. if any conclusion might be drawn from the practice of individual states, they would be warranted in making the proposed advance, since many of their legislatures had advanced the pay of their members. indeed, he believed the people were generally convinced of the necessity of advancing the compensations allowed to the officers of government and members of the legislature, under the present circumstances. mr. b. said he was not for making a permanent increase of salaries, except to the president and vice president. he did not conceive that the members of the legislature ought to have more than was sufficient to support them, without obliging them to infringe upon their own fortunes. he wished the advance thereof to operate no longer than until the present existing circumstances were removed; he should move, therefore, to have the duration of this regulation for one year, instead of two, as it was possible in the mean time the price of living might be so reduced as to make the additional allowance no longer necessary. mr. rutherford said, if gentlemen reasoned together for a moment, they would be convinced this measure was altogether improper and unjust. our present president, said he, is looked up to with reverence, as to cincinnatus, as a good republican. when the commissioners from the republic of holland went to treat with spain, they went in a style of such simplicity as to command the greatest respect. they afterwards appointed a stadtholder, a man of great reputation and patriotism doubtless, like our president; but, as soon as they suffered themselves to lose sight of their simplicity and plainness of manners, and got into the policy and splendor of courts, they were enslaved by their stadtholder; for, within these few years, the office of stadtholder has been declared hereditary. what an extravagance is this; that a man should be born a stadtholder or a king! while the roman people maintained their simplicity of manners, while cincinnatus was amongst them, they were a happy people; but when they lost sight of their plainness of manners, they lost sight of their happiness. let us look at our sister rising republic, and observe how they are doing away all pomp and pageantry in their government and country, and aiming at a simplicity of manners; but, said he, i fear we have not lost sight sufficiently of kings, priests, and courts. this was his dread. it was necessary to bound these ideas. patriotism could not be purchased, and should they despair of getting a man to fill the office of president without they increased the salary? must they hire a man for this purpose? no, they should not be obliged to do this; there would always be found men of abilities and patriotism to fill that office, without any view to pecuniary advantage. mr. dent said the question was to make an amendment by striking out the first section. being in favor of that part which contemplated the addition of five thousand dollars to the salary of the president, and opposed to any addition to that of the vice president, he wished the question divided, in order to accommodate his vote. the chairman said the motion was to strike out the whole section, and it could not be divided. the motion for striking out was then put and carried-- members being in favor of it. _election of president._ a message was received from the senate informing the house that the vice president had laid before them the following communication: _gentlemen of the senate_: in consequence of the declaration made yesterday in the chamber of the house of representatives of the election of a president and vice president of the united states, the record of which has just now been read from your journal by your secretary, i have judged it proper to give notice that, on the th of march next, at o'clock, i propose to attend again in the chamber of the house of representatives, in order to take the oath prescribed by the constitution of the united states to be taken by the president, to be administered by the chief justice or such other judge of the supreme court of the united states as can most conveniently attend; and, in case none of those judges can attend, by the judge of the district of pennsylvania, before such senators and representatives of the united states as may find it convenient to honor the transaction with their presence. friday, february . _naval policy: purchase of a site for a navy yard._ the next resolution which came under consideration, was that proposing the purchase of a site for a navy yard. mr. parker doubted, from the spirit which seemed to be shown on this occasion, that this resolution would not pass. mr. w. smith hoped this would be agreed to. whatever gentlemen may now think or determine on, it was probable we should at some time become a naval power; and even with the most distant prospect of that, it would show economy to prepare for it. he said it never could be too soon to begin the business, and the most effectual method of procuring live oak, and preserving it, was to take the earliest means to obtain, and secure it, when obtained, for seasonable use. he read an extract from the secretary of war's report in support of the plan. mr. coit said he was alarmed at the expense of this business. he saw in the report the salaries of two persons already at norfolk and portsmouth, for taking care of the timber, at dollars each, , dollars. if they were to pay at this rate for overlooking the timber for one ship, what might they expect would be the expense of a navy yard? mr. parker said, the persons to whom these salaries were paid, took care of the timber at norfolk and portsmouth. it was necessary that some person should look after it, or it should be disposed of; but, in case the present resolution was agreed to, there would be no occasion in future to pay these persons, as all the timber and other materials would be stored in the navy yard. he said he had received an estimate from the war office of the expense which would be likely to attend the establishment of a navy yard. the expense of acres of land, and all the necessary buildings, was estimated at , dollars. mr. nicholas said, after having squandered so much money in getting timber for these vessels, he thought some change of habit should take place before they embarked largely in this matter. they had given twice or thrice as much as the timber was worth, yet they were now called upon to go on in the same course. it was not a time for going into this business. if such a thing was even proper, two or three years could make but little difference, and there could be little doubt but every thing could then be bought at half price. this, however, was not his principal objection. it was this: he did not want to see any such establishment; a navy would never do any real good to this country, but would increase the unhappiness of it. it would require large sums of money to support it; its benefits were doubtful, and it might be of very mischievous consequence to the nation. mr. swanwick said he entirely agreed with the gentleman from virginia (mr. nicholas) that there was a necessity for some change of habit; they appeared to be getting that change at present, and whatever their habits were at present, he supposed they would come right at last. whatever might be their opinion of the necessity of a naval force, the european nations, he believed, would convince them of the necessity of it, if they only gave them time enough. it was an extraordinary thing to look at the progress of economy in that house with respect to these frigates. in the first place, six frigates were necessary; they were afterwards reduced to three, and because an officer was appointed to take care of the timber left on hand, a gentleman from connecticut wondered that $ should be so employed. a motion had been made to confine the executive to finish the hulls of the ships only. this would have been a strange economy. indeed, such attempts were made at economy on this business as were never introduced upon any other. the gentleman from virginia (mr. nicholas) had observed there was no use for ships at all. if the house were of that opinion, such a resolution had better at once be come to; but the strange sort of hesitating conduct which was adopted, exceeded all that he had heard of in legislation. had gentlemen who declared these vessels to be of no use, contemplated the situation of this country; that it depended wholly upon commerce for revenue; that that commerce was now put in jeopardy, and that no substitute had been found for the revenue thence arising? and would not all this hesitation, whenever the subject of a navy came under consideration, tempt european nations to continue their unjust depredations upon our property at sea? it certainly would. but even gentlemen who wished to confine themselves merely to the finishing of the vessels at present, would not surely think it improper for them to establish a navy yard, and to secure timber for future use. did those gentlemen consider what it was to deprive the country of a rich mine of ship timber? if they hesitated on this subject, they surely did not. what had been said by the gentleman from maryland on the subject of algiers, was very just; and the want of a navy power would have a similar effect upon all our negotiations, as foreign nations would rise or fall in their demands, according to our power at sea. the money thrown away upon algiers to purchase peace, would have been much better employed in building ships; for if we had a few ships, that power would not have committed the depredations upon us which she had done. and whether the money was paid to algiers or expended in building ships, it was in both cases for the same purpose, viz: the protection of commerce. but there was this great difference between the two expenditures. in the one case, the dollars were shipped off to a foreign country, and in the other, they were paid to our own citizens. the iron used was from our own mines; the guns from our own manufactories; the hemp, and every other material, were of our own growth and manufacture, so that the money went into the hands of our artisans, manufacturers, and farmers. and, therefore, though the frigates had cost a great deal of money, it was some modification of the expense to consider that the money was gone into the pockets of our own citizens. but, he asked if the loss we sustained for the want of a naval power could be estimated? he said it could not. we not only lost our property, but our seamen, and they were not only lost to us, but were probably in the service of those countries which were committing depredations upon us. the loss of property might be recovered; but a hardy race of seamen once lost, could not be recovered. what an affecting spectacle had we the other day of sixty of these unfortunate men returning from algerine slavery? they were received into the arms of their country with all the sympathy which the occasion called for; but could gentlemen help feeling, at the same time, for the impotence of our government, when they recollected that the liberty of these men had been purchased at a very high price from a petty despot? and shall we continue to go on thus, and encourage the barbary powers to enslave our seamen by showing so great a reluctance to enter upon any measure which might afford a defence against their depredations? mr. murray believed it would be a very prudent measure to secure the ship-timber in question; for if we did not, it was probable some foreign nation would get possession of it. he did not know whether the laws of georgia would permit foreigners to purchase the land upon which this timber grew; but if they would not, it would be no difficult thing to get possession of it through the medium of an individual. if this country were to become a maritime power, and no one who considered the subject for a moment could doubt it, this was too rich a mine to be neglected. what had been said about adopting the chinese policy, might serve to amuse them; but when they looked at the commerce of the country, it was impossible they should not see the necessity of a naval force to protect that commerce against the depredations of any nation who chose to attack it. indeed, it was come to this, they must either provide for the protection of commerce, or deny the utility of it, and give it up altogether. but the gentleman from virginia (mr. nicholas) was afraid if these frigates were sent out to sea, they would involve us in a war. what! said he, can it be supposed that three frigates would give us that ridiculous kind of spirit which would induce us at any rate to go to war? this would be a species of insanity which he did not think it was probable we should fall into. no: these vessels would serve to protect our coasts, and preserve our commerce from attacks, at least, within a small distance from our own ports. how far they might serve to render us of some importance in the eyes of foreign nations, he could not tell; but he believed that three frigates would have a greater effect in this respect with us, than ten to sweden, denmark, or holland. we lie, said he, near the high road of commerce to the west indies, and these three frigates, backed by national wealth, would show a disposition to become a maritime power, and would have their effect upon european nations. besides, mr. m. said, these vessels would be the foundation of a future navy. he was for shaping our means of defence to the means of offence employed against us by other nations; for until the european nations became wise enough to cease from war, it was necessary to provide means of defence against their attacks. he should, therefore, always give his support to every means of national defence. he wished our nation to stand upon a respectable footing as a nation, since the most magnanimous conduct was no security against the attacks of foreign powers. he should, therefore, be in favor of a naval yard, and of providing ship-timber for future use. mr. harper said, the two resolutions respecting a naval yard and a provision for timber should come under consideration together; because, if no provision was made for purchasing timber, a naval yard would be of no use. this question, he said, was capable of being considered under two points of view: the one whether the measure was proper; the other, if the measure was proper, whether it would not be better postponed for the present. both of these points required a considerable degree of attention. there was a variety of considerations on both sides of the question, and it remained for them to determine for the best. was it proper for this country, he asked, to turn its attention towards marine strength? did not our situation, and the circumstances in which we stand, compel us to turn our attention to this object? he thought they did, and for one or two reasons which he would submit to the consideration of the committee. it appeared to him out of the question that any kind of commerce should be continued without some ships-of-war to protect it. this was the dilemma in which we were placed. it was said by some gentlemen that this dilemma might be avoided, by suffering commerce to go on unprotected, and subject it to all risks; and that even then, there would be sufficient benefit arising from it, to induce its continuance. this he did not believe. if persons engaged in commerce could have no dependence upon the protection of government, a very few years, perhaps a few months more, might convince them that the business could not and ought not to be continued. the present government, he said, had only been in existence eight years, and for nearly four of them commerce had been subject to every kind of depredation. the usual calculation with respect to europe was, that during every ten years, it would be subject to war, and that these wars would have a duration of from six to eight years, in the course of which our property and citizens would be subject to the same violations and injuries which they had for the last four years experienced, if no provision was made, by a naval power, to prevent it. brought to this dilemma, said he, which side will you take? will you give up commerce, or build a navy to protect it? besides, he said, a great part of our citizens who had been trained up in commerce from their infancy, could not be driven from that kind of employment to which they had always been accustomed. they could not be induced, like the chinese, to stay at home; they would be engaged in commerce, their favorite pursuit. if they, then, were compelled to protect commerce, he asked if there was any other way of doing it than by a navy? he believed not. treaties afford a feeble and very inadequate protection; they were broken whenever it suited the interest of a nation to break them. letters of marque might afford some protection; but this would operate as a heavier tax upon the people than even the support of the navy. the money which a merchant expended in this way would eventually come upon the people in the price which they would be obliged to pay for their merchandise, and the means would be very inadequate to protection. in china and the east indies, mr. h. said, the inhabitants could shut themselves up within their own territory, and avoid any intercourse with foreign nations. in countries so far removed from europe, as to prevent any one nation from making a monopoly, of its trade, this policy might exist. but could america lay up her ships, and say she would open her ports to all nations? no; that very instant you give up your trade to that nation which has the greatest power at sea; for she will immediately block up your ports, and oblige you to trade with them only. in order, therefore, to trade with all nations, we must be the carriers of our own produce, for other nations would not leave us at liberty to do so. the strongest power would say to the others, you shall not trade with these people, you shall do so and so, or we will go to war with you. you must, therefore, said he, protect your own trade. will these resolutions, then, said he, if adopted, tend to this point? he believed they would. to provide a dock-yard, and to take care of a supply of timber suitable for the purpose of ship-building, were very essential steps. much expense, he said, would be saved in carrying on the building of several ships together in one yard, instead of having them scattered in different parts of the union. timber might also be laid up to season in this yard, so as always to be ready for use; for, he believed that much of the delay which had attended the building of the ships now on the stocks, had been owing to the difficulty which had attended the procuring of proper timber. besides, mr. h. said, its being known to foreign nations, that you had provided a dock-yard, would have some weight; it would at least have the appearance of an intention of building a navy. with respect to the purchasing of land clothed with live oak timber, he thought it a very desirable measure. it was well known that this timber was confined to a few spots--a few sea islands on the coast of south carolina and georgia, and some small strips along the seashore; and in each of these places there were only a few trees of a sufficient size for building large ships. the land upon which these trees grew, since the cultivation of cotton had been introduced into those parts, was become valuable land for that purpose. this induced the people to cut down the timber and burn it, for the sake of getting the land, and there was no way of arresting this practice, but by securing the land; and being of so good a quality, when the trees were cut down, it would probably sell for a greater price than was originally given for it. mr. gallatin saw no connection between the two resolutions, which the gentleman who had just sat down thought it necessary to connect together. the last resolution proposed the purchase of land clothed with live oak; the present proposed the appropriation of a sum of money for purchasing the site of a naval yard, &c., as a foundation for a navy. the last went only to the securing of timber for the building of a navy, if at any day it should be thought necessary; he believed he should vote for the last, but certainly against the first. they had been told that no commerce could exist without protection, and that that protection must be a navy; from whence it would follow, that if a navy was necessary to protect commerce, it must be a navy competent to vie with the navies of other nations. he would here ask, how gentlemen drew their conclusion, that commerce could not exist without the protection of a navy. he wished they would show from the example of any nation in europe, or from our own example, that commerce and navies had gone hand in hand. there was no nation, except great britain, said he, whose navy had any connection with commerce. no nation, except england and holland, had more to do with commerce than this country, and yet we had no navy; and though for the four last years this commerce had been subject to continual depredations, it was not exceeded by any nation, except the two he had named. and if they looked to europe, they would find there was no connection between navies and commerce. russia and sweden had considerable navies, but little commerce; whilst holland, whose navy was by no means large, ranked next to england with respect to commerce. hamburg, he said, was one of the first commercial states in europe, yet she had no navy. navies, he said, were the instruments of power, more calculated to annoy the trade of other nations than to protect that of the nation to which they belong. but there was another position which he should take in opposition to gentlemen who supported the creation of a navy, viz: that however useful or desirable a navy might be, this country was not equal to the support of one. we might have two or three frigates indeed, but, when he said we could not support a navy, he meant to say we could not support such a navy as should claim respect, in the sense which those gentlemen spoke of it; such as being an object of terror to foreign nations. if they calculated what the three frigates had cost, considered the scanty manner in which this country was peopled, our inability to raise any very large revenue, and the high price of labor, the truth of this assertion would appear evident. again, if such a navy were created, how was it to be manned? he wished gentlemen to point out any mode in which a navy could be manned in this country without having recourse to the abominable practice of impressment. if the nations of europe found it impossible to man their fleets without having recourse to these violent means, he believed it would be impossible, without breaking down those barriers which secured the liberty of every citizen, to man a navy in this country. perhaps he might be asked, if we were, then, to be left without protection? he thought there were means of protection which arose from our peculiar situation, and that we ought not to borrow institutions from other nations for which we were not fit. if our commerce had increased, notwithstanding its want of protection; if we had a greater number of seamen than any other nation, except england, this, he thought, pointed out the way in which commerce ought to be protected. the fact was, that our only mode of warfare against european nations at sea, was by putting our seamen on board privateers, and covering the sea with them; these would annoy their trade, and distress them more than any other mode of defence we could adopt.[ ] monday, february . _purchase of live oak lands._ mr. harper said, that though the house had declined coming to a resolution to authorize the president to purchase certain lands in georgia, clothed with live oak and red cedar timber, as a reserve for future naval purposes, yet there seemed to be a disposition to cause an inquiry to be made on the subject. he therefore proposed a resolution to the house to the following effect: "_resolved_, that the president of the united states be authorized and requested to cause to be made and reported to this house as early as may be after the meeting of the next session of congress, an inspection of lands furnished with live oak and red cedar timber, with the relative advantages of different situations with respect to their fitness for naval purposes, and the rates at which purchases may be made." ordered to lie on the table. _john de neufville._ on motion of mr. madison, the house resolved itself into a committee of the whole on the following report of the committee, to whom was referred the memorial of anna de neufville, widow of john de neufville, deceased. they report-- "that the services and sacrifices of the said john de neufville to the united states, during the war of their revolution, as stated in the said memorial, and vouched by the testimonies herewith reported, constitute a reasonable claim, in behalf of his, at present, very distressed widow and children, on the justice of the united states. that it being impossible, from various and peculiar circumstances incident to the services rendered, to ascertain and liquidate the compensation due into a precise sum, it is necessary for congress to decide on and provide for such allowance as may be deemed equitable and right. that, in the opinion of the committee, the sum of three thousand dollars may be a proper allowance. they therefore propose the following resolution: "_resolved_, that provision ought to be made, by law, for granting to the widow and two children of john de neufville, the sum of three thousand dollars, to be equally divided among them." this report was advocated by messrs. harper, w. smith, swanwick, havens, heath, thatcher, varnum, and rutherford. they stated that the husband of the petitioner, john de neufville, was an eminent merchant at amsterdam; that he was an influential character there, and, at an early period of our revolutionary war, entered with great zeal into the interests of america; that, meeting with mr. william lee, the commissioner of the united states, he endeavored to bring about a treaty between the united netherlands and the united states, which being discovered by the british, that court used its influence with the government of that country to harass and drive him out of the country; that during his residence at amsterdam, his house was a constant asylum for american citizens; that he had made large advances in money for the service of the united states, which obliged him to extend his credit beyond what was warranted by the regular course of trade, and a failure in the payment of which (owing to the embarrassed circumstances of the united states at that time) had greatly injured him, and left him to the mercy of his creditors. the consequence was, he was reduced from affluence to poverty at an advanced period of life. some years ago he arrived at boston with his wife and two children, where he subsisted in a very humble manner upon the bounty of his friends in holland; those friends having, by the reverses occasioned by the revolution, been much injured in their property, could afford him but a scanty pittance; but mr. de neufville being dead, the petitioner was deprived of this assistance; and, to add to her repeated misfortunes, the son of her late husband, from their multiplied sufferings, had been deprived of his reason. under this pressure of grievances, the petitioner was come from boston to lay her case before congress, and pray relief. this peculiarly distressing case was supported with great zeal and feeling by its advocates, particularly by mr. harper. the claim was opposed by messrs. coit, swift, and nicholas. an application, it seems, was made by mr. de neufville, during his life-time, for redress; upon which the then secretary of state (mr. jefferson) reported. this report, after stating all the facts upon which the claim was founded, gave it as his opinion, that the petitioner had no real claim on the united states. this report, it seems, had never been acted upon. the reading of it, as well as of all the documents relative to this claim, was called for, and they were accordingly read. the opposers of this claim acknowledged the distressed situation of the petitioner, but denied the justice of her claim upon the united states; the treaty which mr. de neufville proposed to enter into with mr. lee, they supposed, was a treaty which he believed would prove beneficial to his country, and not to the united states: that there were many claims in our own country from persons who had been injured by the war, the justice of which was less equivocal, and the distress at least equal. mr. nicholas said, a few days ago only, a poor man, whose health had been so much impaired in the war, that he was unable to earn his living, had applied to him to bring his case before congress, yet, as the pension law affords no relief to any person, except he had been wounded, he was obliged to inform him that he could do nothing for him. there were multitudes of such instances, equally distressing with the present, to which no relief could be afforded. mr. thatcher moved to have the three thousand dollars struck out, and five inserted. this was negatived-- to ; but the resolution was agreed to as reported--yeas , nays . thursday, february . _john c. symmes._ mr. gallatin said, a report had been made upon the contract between john c. symmes and his associates, and the united states, which it was of importance to pass into a law this session, as the object was four hundred thousand acres of land, which was worth about eight hundred thousand dollars. the house accordingly resolved itself into a committee of the whole on the subject, when the report, which was very long, having been read, the committee agreed to the resolution reported, which was in the following words: "_resolved_, that a committee be appointed to bring in a bill to authorize the president of the united states to grant, in fee simple, to john c. symmes and his associates, that part of a tract of land, the boundaries whereof are ascertained by a survey executed in conformity to the act of congress, entitled 'an act for ascertaining the bounds of a tract of land purchased by j. c. symmes,' and returned to the treasury department the th of january, , which is not included within the bounds of a grant already made, on september , , to the said j. c. symmes and his associates; excepting and reserving out of the same the lots reserved by the original contract, entered into between the united states and the said symmes and his associates; provided that the said symmes and his associates shall previously, in conformity to the terms of the original contract, make the requisite payment for the tract to be granted to them, and for the , acres, part of the grant already made to them on the th september, , for which they have not yet paid any consideration; and provided, also, that the township reserved for an academy shall have been previously laid off and secured, according to the terms of the contract, and of the resolutions and law of congress relative thereto." friday, february . _increase of duties._ brown sugar. mr. w. smith said, the proposed increase, it was calculated, would raise , dollars, and as the article was not liable to be smuggled, nor its consumption to be decreased, it would be a certain, and he thought, an eligible tax. mr. holland had no doubt but this tax would augment the revenue; but he knew also that it would fall more upon the poor than upon the rich, and he thought they ought not to add to their burdens. he thought there were other articles which would bear some addition, but either brown sugar or salt would be much felt. if they studied that which would be burdensome, here they might fix, but he hoped this was not the principle. by advancing an article so universally used, a rise of labor (already too high) must naturally follow. mr. kitchell believed the rich and opulent would bear their portion of this tax as well as the poor, as it would fall upon fine sugar as well as upon brown. it would therefore be paid in proportion to the sugar used, and would fall as equally as any other tax which could be laid. in this instance, mr. k. said, gentlemen seemed apprehensive of the poor bearing too great a part of the burden; but, if the direct tax on land were to take place, would it not, he asked, fall much heavier upon the poor than a tax on sugar? he believed it would; since the poor who held lands would be called upon to pay their portion of it, whilst the rich who held no lands, would escape it. he, therefore, thought this a far preferable tax. mr. dearborn said, if further revenue was necessary, he could not conceive any article which would bear an advance of duty better than the one proposed. the present duty, he said, was one and a half cent a pound, and could it be supposed that to lay an additional half cent upon it, could make much difference to the consumer, or that it would ever be felt, or that, at the end of a year, it would be discovered whether one and a half or two cents duty had been paid upon a pound of sugar? he should have no objection, instead of half a cent, to lay an additional cent upon this article. in various parts of the country, brown sugar was retailed at from to cents a pound, the price being much increased from the present distressed situation of the west indies. but they would find sugar of the same quality selling in one place for , in another for or cents; therefore, whether the duty was one or two cents, he did not think it would be felt by any body. it was true, that it was an article used by the middling and lower classes of the people; but the tax falling upon fine as well as brown sugar, all parts of the community would bear an equal share in the burden. mr. williams moved to strike out the half cent, and insert a cent. it appeared to him that such an advance could not materially affect the consumer. the people, it was true, might use less; but, if they did so, as it was an article of luxury, every pound of sugar less which was consumed, would be of benefit to the country, by keeping the money which it cost in a foreign market at home. but he did not believe that this would be the case; or that the proposed additional duty would increase the price of labor, as had been suggested. he believed the price of labor would be regulated by the price which the farmer was enabled to get for his produce. whatever the farmer could afford to give his laborer (especially in this country where agriculture is the true interest) would fix the price of all other labor. mr. holland said, perhaps the constituents of the gentleman last up might manufacture their own sugar, and therefore would not be affected by this tax; but the greater part of his constituents were obliged to use and purchase their sugar; and if it were a luxury, it was one he did not wish to deprive them of, but that they might have it upon the same terms as usual. he looked upon it as a necessary of life, already at too high a price, and he should, therefore, oppose any advance of duty upon it. mr. gallatin said, he and his constituents were in the same situation with the gentleman from new york (mr. williams) and his constituents. they manufactured almost the whole of their own sugar; very little imported sugar was used; indeed, they sometimes exported sugar; but though this reason seemed to act pretty powerfully upon the gentleman from new york, it would not have the same effect upon him. whenever a measure operated partially upon other parts of the union, though it might operate in favor of his constituents, he should feel himself in duty bound to oppose it. on the ground of their being representatives of the whole union, as well as on the ground of policy, he did not believe it was right to endeavor to throw a burden upon one part of the union, because the part in which they were most particularly interested, would escape it. he hoped the amendment would be rejected, and after the sense of the committee should have been taken upon it, he also would move an amendment. at present, brown sugar paid one and a half cent a pound duty, and molasses three cents per gallon. he should, therefore, move to have an additional cent laid upon molasses, in order that the two articles might be increased in the same proportion. he was against any increase at present; but if the duty on one article was increased, the other ought also to be increased. mr. williams observed, that he had said the people in the part of the country from whence he came, made their own sugar during the war; if they were to make it now, it would cost them more than double the price at which they might purchase it. he said, when the gentleman from pennsylvania (mr. gallatin) found the land tax was not likely to pass, he wished to defeat every proposition for an indirect tax. he had attempted, therefore, to defeat an additional tax on sugar, by proposing to add molasses to the resolution. he did not think this fair; he wished every proposition to stand upon its own ground. a few days ago that gentleman had insisted upon the necessity of laying a direct tax; but now he came forward, and said no additional revenue was wanting. he wished not to have a compulsory tax, but a tax which persons might pay or not. if they did not like to pay the tax on sugar, they might do without it. mr. cooper said he was against any additional duty on salt or sugar, though he and his constituents (as well as his colleague and his constituents) should bear no part of the burden, as they made not only sufficient for themselves, but for sale. indeed, he said, a duty on salt exported out of the united states, would produce revenue, as a considerable quantity was sent into upper canada. mr. williams denied that his constituents made any salt; they had no salt but what paid duty; nor did his constituents make one-fourth of the sugar they used; nor did he believe his colleague's (mr. cooper's) constituents made one-half of the sugar they used, as he well knew that a large quantity of sugar was sent to that district by way of albany. mr. read hoped the amendment would obtain. although such persons as lived at a distance from market manufactured their own sugar, and consequently would be excused from this duty, yet they labored under many disadvantages in other respects, on account of their remoteness from market, and therefore he had no objection to their being excused from the operation of this tax. he did not believe this tax on sugar would fall upon poor persons. farmers, indeed, used a little brown sugar, but they would rather pay a little more for this article than have their land taxed. mr. claiborne was against the amendment. if an additional duty of one cent was laid upon brown sugar, the different dealers would make it three or four, so that it would be materially felt. mr. gallatin then moved to amend the resolution, by adding an additional cent per gallon upon molasses. at present the duty on brown sugar was one and a half cent per pound, and on molasses three cents per gallon. the advance of per cent. on the present duty would be the same that had been agreed to be laid upon sugar. mr. swanwick seconded the motion. the only way in which the tax on brown sugar could be secured was by advancing the duty on molasses in the same proportion, otherwise molasses would be used in the place of sugar, and the duty would be evaded. but he would have gentlemen consider in what situation they placed the revenue in respect to drawbacks. the person who paid the duty was probably not the same who drew the drawback on exportation; the united states run the risk, therefore, of paying the drawback, without receiving the duty. though he thought the tax on sugar highly objectionable, yet if it were adopted, he thought it right that it should be accompanied by a proportionate tax on molasses as a security to the duty being paid. one cent a pound on sugar, it was said, was a trifle; but it was well known that the price of that article was at present very exorbitant, from the disorders which had taken place in the west indies. mr. nickolas hoped the amendment would be agreed to. his principal objection to a tax on sugar was, because, having been successful in making one addition, it would be an argument for making future ones, but if molasses was added to it, the tax would then fall more equally on the poor of different parts of the union, and be a means of keeping down the tax. mr. buck said, if he thought the advocates of this amendment would vote for the resolution when amended, he might be induced to vote for it; but he believed they did not mean to do so. if an increase of the duty on brown sugar would fall upon the poorer class of the people, an additional duty on molasses would fall much heavier upon them. but he thought gentlemen were mistaken with respect to the operation of the tax on brown sugar; in the country it would not fall upon the poor, though in the cities it might do so; though in increasing the duty on brown sugar, that on fine was also increased. in the country it was the rich who used brown sugar; they had not got to that pitch of refinement which called for the use of fine sugar; they used brown sugar, and the poor used none; they sweetened with molasses. notwithstanding this, if he thought gentlemen meant to vote for the resolution when amended, he would not object to the addition on molasses, as he did not think so small an advance would be materially felt. mr. rutherford hoped they should not agree to lay an additional duty on either of these necessaries of life. he hoped there was sufficient good sense in the house to oppose such a measure. they were used by all classes, from the infant to the stoutest man; particularly by many poor, infirm, aged persons, who looked upon them as nutritious and balmy nourishments. he hoped, therefore, they would not increase the price of those articles; for, if an additional cent was added, the dealers would add two, three, or four cents, which would be more than the poor could afford to pay for them. mr. christie believed the gentleman from pennsylvania meant, by the introduction of this amendment, to defeat the tax on sugar altogether; he should, therefore, vote against this amendment; but if the additional tax on sugar should be carried, and the additional tax on molasses should be introduced alone, he would vote for it, but he would not vote for them together. he did not think the tax on sugar would fall upon the poor, particularly as fine sugar would be taxed equally with the brown. he thought it was a fair object of taxation. he believed they should want revenue, and he did not know an article from which it could be better raised. mr. findlay was at a loss to know how a tax on molasses would operate; but his doubts had been removed by the gentleman from vermont, (mr. buck,) who had informed them it was used by the poor in place of brown sugar. in many parts of pennsylvania molasses was scarcely known, and brown sugar was generally used by the poor; if, therefore, the same class of persons in one part of the country used molasses for the same purpose for which brown sugar was used in other parts, it was only reasonable that both should be taxed in the same proportion. his colleague (mr. gallatin) had mentioned that his constituents would not pay any of this tax, as they made their own sugar. it was so with a part of his constituents, but not with the whole. as it would be unjust to pass one tax without the other, he should be in favor of the amendment. mr. gallatin said, it had been charged against him, that he had introduced his amendment with a view to defeat the tax on sugar. he had already said that he did not wish for any indirect tax during the present session; but, at the same time, he considered it his duty, if a majority should choose to pass the resolution, to make it as good as possible before he voted against it, for this purpose he had introduced his amendment. whenever the duty on sugar was increased, that on molasses should also be increased. with respect to what had been said about the duty on brown sugar not falling upon the poor, it was contradicted by the quantity every year imported into the united states. when they knew that this amounted to twenty-two millions of pounds weight, they must conclude that it was used by the poor as well as the rich; for though the eastern states used a great deal of molasses, it was not the case in the middle, southern, and western states; all classes of citizens in those states used sugar. the voting for the amendment now was the same as voting for it in any other shape. it was doing now what would be done hereafter, if now omitted. there was nothing informal in it. he saw no reason which could be urged for one taking place, which would not equally hold with respect to the other. mr. swanwick thought that those gentlemen who separated the articles of sugar and molasses, would wish to defeat the object; thus it was with the gentleman last up. this was introduced with a view of securing the collection. mr. s. said he had before stated the injury the united states might sustain in case of a failure of pay from the imported, and need not repeat that he objected _in toto_ to the tax. mr. buck asked if, when on the question on the resolution, (if, adopted,) a separate vote could be given? he was answered no. then he would observe to the gentleman that, if it could not be separated, he hoped it would not be introduced, it having been said the duty on sugar would operate on the poor; now, he said, here was an article introduced with it that would operate worse than the other; therefore, he should oppose both, if put together, when, if separated, he should have voted for the tax on molasses alone, as sugar was a great means of sustenance and use. the chairman again remarked (in reference to what had fallen from mr. w. smith) that the amendment was in order, though he did not think it the most fair way of introducing the subject. mr. gallatin conceived that he was the best judge of the fairness of his proceedings; and as the chairman had declared the amendment to be in order, he expected a question would be taken upon it. mr. nicholas begged leave to differ in opinion from the chair in this instance, though he must own much deference was due to it: he thought the proceedings perfectly fair. mr. n. would vote for this, in order to have the two connected; that gentleman could now vote against the addition of molasses, then he would have an opportunity to vote on sugar alone. he should wish it extended to both alike. the gentleman (mr. buck) was mistaken in his application on this subject; it was not taxing the sustenance of the poor in one article more than another, for the sugar would most affect one part, yet molasses would as much affect another; he, therefore, hoped, if gentlemen wished fair and equal taxation, that this association would take place; this equalization would go to prevent any opposition to the tax, which would otherwise be hazarded. mr. buck was satisfied with this explanation; therefore, supposing gentlemen who supported the amendment would vote for both, according to this modification, he should go with them; if not, he should oppose the amendment. mr. dayton (the speaker) said, he did not rise to speak to the point of order; he considered that as already settled by the chairman. every member, he said, against laying an additional tax upon molasses, would, of course, vote against the amendment; and all those who had no objection to the tax, but who did not wish it to be thus introduced, of whom he found there was not a few, might join them, as, after the additional tax on sugar was agreed to, that on molasses might be again introduced. mr. s. smith said, he had some doubt before the last gentleman was up, of the propriety of tacking these two articles together, but now he had none. one part of the union, he supposed, would be for voting out molasses: but his constituents would not like the tax on sugar, except it was accompanied with that on molasses; as a subject of sweetening he thought they should both go together. mr. s. said, he had another article of sweetening, which he wished also to add to the resolution: great quantities of sugar-candy were manufactured in holland and sent all over germany; it was used with tea and coffee, in the place of sugar. this article, he said, was finding its way among the germans in this country. at present it only paid a duty of per cent. _ad valorem_, which was a very inadequate duty, when compared with that paid on sugar. mr. s. said, he was against going into the subject of indirect taxes, but he thought with the gentleman from pennsylvania (mr. gallatin) that it was his duty to make the resolution as good as he could. nothing had been said to prove that we had not revenue enough for the present; but he would, however, move to add nine cents a pound upon sugar-candy imported. mr. s. said, he agreed with the secretary of the treasury, that sugar was amongst the most proper articles upon which to lay an additional impost; but he wished for some permanent source of revenue, and not adopt the trifling modes proposed. gentlemen talked of deceiving the people; he said they could not be deceived; they would know there were two parties in that house, the one for direct, the other for indirect taxes. those gentlemen who were opposed to direct taxes brought forward these articles in place of it. the people need not be told this; they saw it evidently enough. mr. holland said, though he was opposed to direct taxes, he was also on sugar and molasses; he saw all the disadvantages of some other gentlemen on taxing west india produce at this critical juncture; but if it must pass, he should think it his duty to endeavor to make it pass as unexceptionably as possible; however, he should oppose both, and though it affected his constituents differently from those of vermont, yet he should not include them as necessarily connected. mr. h. thought if these were opposed, there might be many articles more proper to lay a tax on; but he thought there was no necessity for any this session. the question for adding one cent per gallon on molasses was then put and carried. mr. s. smith then moved that nine cents per pound be laid on sugar-candy imported, observing that it was much used by the dutch, and there being much sweetening in it, it should bear a proportionate duty. mr. w. smith wished the gentleman to be candid on the motive of his proposition. mr. s. smith answered, that his conduct with respect to the subject had always been fair and unequivocal; he wished the whole proposition to be defeated, which he had before declared, but, to make it equal and consistent, he proposed the addition. it was then put and carried. the question was put on the whole resolution, as amended, and carried--yeas . friday, february _increase of duties._ salt. mr. harper then proposed that an additional duty of five cents per bushel should he laid upon all salt imported in the united states. [mr. h. read the letter of the secretary, wherein he mentions salt as being at a much lower rate of duty than in other countries, and that no tax laid upon it could be evaded, from its necessity and bulk.] mr. h. added, as, in his opinion, satisfactory answers had been given to the objections which had been urged against this tax, it was not necessary to say more on the subject. mr. gallatin said the arguments of the secretary of the treasury were excellent fiscal arguments, and went to say, "provided we can get money, no matter how." he says salt cannot be smuggled; that we know: whether the duty was increased, or remain as it was, the people must consume the same. this was true, and the same arguments might be used for taxing the light or the water. of all the necessaries of life, a duty was most easily collected upon salt; and this was the reason which had induced other countries to tax it so heavily; and yet this was used as an argument for increasing the duty here; but he was not one of those who felt any consolation, upon such an increase of duty, that there were other countries where the duty was yet higher. mr. g. said, as to any satisfactory answers which had been given to the objections to this tax, he had not heard them; he believed they had not been answered at all; except, indeed, sullen silence might be deemed satisfactory answers; if it were, they had indeed been answered satisfactorily. mr. g. here repeated the objections to the tax which he had made on a former occasion, viz: that it would operate as a poll-tax; that it would fall partially on some districts of country, and upon some classes of citizens more than others. he said salt in that part of the country from which he came was already upwards of four dollars a bushel, and that it would be therefore oppressive to increase the evil, by adding fresh duties upon it. mr. nicholas said a tax on salt was equally objectionable, whether it was considered as a poll-tax, or as a tax upon agriculture. as a poll-tax, every one would see the injustice of charging all men alike with a tax, without respect to their ability to pay it; as a tax upon agriculture, he was able to say something from experience. he was willing to give all the authority to the opinion of the secretary of the treasury which he could wish, but he could not yield his opinion to him. he knew that agriculture was at present very much depressed by the high price of salt; he had himself refrained from the use of it, by its dearness, though he believed his cattle had been the worse for it. the poorer class of citizens in the part of the country from which he came were generally owners of cattle, and employed themselves in taking care of them. these men found it at present as much as they could do to make a comfortable living, and any additional tax on salt would be very ill received by them. he was satisfied that it was a tax which would operate with great inequality; it was a tax upon one kind of employment--upon an employment which was generally pursued by the poorer classes, and consequently least able to pay it. it might be said, five cents a bushel was a trifle; but he said he objected to it from the principle of taking money where it could be got, as, if five cents were now to be added, the same argument would hold for adding another and another five on a future day. mr. holland was opposed to the amendment; he said no article which could be mentioned would bear a greater augmentation than salt; indeed the whole revenue of the united states might be raised from it, because it must be used by every person; but that was no reason why the whole burden should be laid on it. in north carolina, mr. h. said, it was four dollars per bushel, which was sufficiently high without adding to the price, and was always a cash article, and difficult to be had for that. it being an article of absolute necessity, the rich would not pay more, if so much, as the poor. mr. rutherford said, he was against this tax for two reasons; the first was on account of its inequality, and the next on account of its odiousness. a tax on salt, he said, was almost like taxing the common air. farmers were obliged to use large quantities of it for their stock; it rendered them docile and easy to be managed. indeed it could not be done without; a person was nothing without salt. the price at present was enormous on the frontier, and this duty would add prodigiously to it; for this reason he should give it his flat opposition. mr. findlay said, because salt was necessary, and because it could not be smuggled, would not surely be sufficient arguments for increasing the duty upon it. the law of reason, he said, was the law of justice. mr. f. gave an account of the progress of this tax. his colleague (mr. gallatin) must have been mistaken as to the price which this article bore in the western country. he had himself lately paid six guineas for six bushels of salt. indeed this was considered as the greatest inconvenience in that part of the country, and they could not at present be relieved from it. providence, who generally bestowed the necessaries of life in a very general manner, had not provided them with salt. and shall we, for this reason, monopolize a revenue upon it? for the same reason would hold good for paying the whole upon it as a part. he trusted they would not be so unjust to the people of that country. mr. harper said, after all the time which had been taken up in discussing this subject, he would not occupy the attention of the committee longer than while he made one or two remarks. the gentleman from pennsylvania (mr. gallatin) had said that no answer had been given to his objections against an additional tax on salt. he should not enter into a dispute with that gentleman upon what might be deemed an answer; but he believed many members of that house would remember that an answer was given, and probably they might also think it a satisfactory one; at least it was so to one person. the objections brought against this tax would be well-founded, if the whole revenue was proposed to be raised from it; or if it were intended as a substitute for a land tax, or any other great object; if two or three millions were wanted from it, then it might be objected to upon good ground; but when one hundred thousand dollars only were proposed to be drawn from this source, he did not think the objections would hold. admitting, said mr. h., that there was some inequality in the operation of this tax, those persons upon whom it fell heaviest were exonerated from many other taxes which other parts of the country had to pay. they had, for instance, just agreed to increase the duty upon a certain species of cotton goods, of which they would not purchase a single yard. the present revenue was six millions four hundred thousand dollars, of which salt pays near three hundred thousand dollars. the people on the frontier, who pay for salt, are in a great measure exempt from other articles taxed; they purchased neither foreign wines nor spirits, high priced dresses nor furniture; all they wanted was corduroys, &c., which was very unfrequent. if five cents per bushel was laid on salt, those persons would have about a dollar a year more to pay, and nine-tenths not half a dollar. what could be more easy? indeed, except the people were told of the duty they would not know it, as its effects would be so trifling. with respect to the price of salt at fort pitt, as a gentleman had observed, it might be high, but was this occasioned by a duty? no, but by the situation of the country. ought they not, then, he asked, to devise some species of tax by which to draw some part of the revenue from the inhabitants of the back country? he thought so far from this being wrong, that justice required it. this subject did not address the understanding, but the sensibility of the house, or perhaps the sensibility of those out of the house. the objections against the tax which had been urged, he thought, ought not to have any weight, since it would operate with the greatest equality upon the whole, and there would be safety, propriety, and justice, in making the augmentation in question. suppose two cents were put, instead of five; this would raise a good sum, and be very easy. mr. s. smith moved that the committee rise; which was negatived--there being only twenty-five in favor of it. mr. w. smith said the question had best be taken on blank cents, then five, four, or any number of cents could afterwards be added. the question was then put, and lost--yeas , nays . saturday, february . _naval appropriation._ the house then resolved itself into a committee of the whole on the bill granting an appropriation for finishing the three frigates, and also upon the bill repealing that part of the act which provided for the officering and manning the frigates, both having been committed to the same committee of the whole. that for repealing a part of the former law came first under consideration. mr. w. smith said he could not abandon the idea of our some time becoming a naval power; he very much disliked the repealing this act; in order, however, to make the bill more palatable, and to remove some of the embarrassments which the senate would otherwise have to encounter, he would move to substitute, instead of the word "repeal," the words "suspend for ---- years." mr. coit thought the very beginning of the frigates a wild notion, and hoped the most distant idea of manning them would not enter gentlemen's minds; he should therefore oppose the motion. mr. venable said, it seemed the gentleman who moved the amendment did not think it necessary the ships should now be manned. the operation of the amendment appeared to put it in the power of one branch of the legislature, at a future day, to man the ships, and send them to sea. he was surprised at the changeableness of the gentleman who moved and favored the equipment. when a naval armament was first proposed, it was objected to, as looking like forming a naval establishment. they then told us it was expressly to repel the encroachments of the algerines; and that, as soon as peace was obtained with that power, the building of them was to stop. now they come forward, and avow a desire to have a navy establishment. thus originate evils which if not stopped early, would spread and become dangerous. the only fair argument they have on the subject is, that a navy is now become necessary. certain it is, that, if they intend to have a naval establishment, to protect our commerce and repel our injuries, three frigates will be very incompetent to the object. he should not object to finishing them, and only because so much had been expended on them already, but should ever oppose fitting them for sea. mr. swanwick asked the gentleman what security there was in a peace with algiers? could he say we were at peace with them now? certainly we are in a worse situation with that power now than then; we are parting with our cash, (which makes it such a scarce article,) and yet we have no benefit. now it is said it is altogether a vision--a fancy or a dream. then gentlemen get up and ask what we are to do with three frigates? he would answer, that so far as they went, they gave stability and protection to our commerce. true, they were not thirty frigates, but he believed, few as they were, they would save more than five times what they cost in only one year. the richest ships we have are now taken and robbed by every picaroon and pirate infesting the seas, because we have no security; and he was surprised it was not worse. he had no doubt but it would be an emolument; it would be a protection to the great revenue we enjoy. that very trade, he said, which was subject to spoliation from such petty robbers, paid into the revenue five or six millions of duty annually. if this was still permitted to be encroached on, it was an error, and it would soon be seen; and this was by a people called "free and enlightened." he had no doubt they would soon be enlightened enough to see they had done wrong. if gentlemen are against finishing these frigates, why do they not come forward and declare it? let us sell them, said he, at public auction. what will be the effect if we have it told at our wharves that we object to man them, because we have peace with algiers? he hoped they would be manned, or else have tacked to the bill, that, when finished, they were to be sold for east indiamen or something. if that were gentlemen's wish, this was the time to come forward and say so, and let it be put in the bill. he would ask, was there any thing in the name of government, if it operated in this manner? it was extraordinary conduct, indeed. gentlemen say they will not vote to finish these frigates, except the repeal for manning is included. when it goes up to the senate, may they not say they will not vote to finish, except it be to man them? but, mr. s. said, he supposed gentlemen depended upon negotiation, if any thing was wrong. what were the consequences of our late negotiation? we have two things before us--treaty or ships. as for treaty, we have seen our money sent across the atlantic, and scattered a thousand ways: this was throwing it into the ocean. he had heard of a doge of venice throwing a ring into the sea to marry it: it seemed this money was gone for the same purpose, and its use would be no better than the doge's ring. he thought the most complete treaty was, power to resist aggression. this business of negotiation is very unprofitable. you may obtain fair promises from foreign ministers, but very poor redress, if any. the question on the amendment was put and lost--ayes , noes . mr. harrison moved for the committee to rise and report the bill without amendments. mr. nicholas said, it seemed that gentlemen were making a new business of this. at the time it was brought forward, gentlemen voted in favor of it, because the law was to be repealed. he voted to separate the bills, because he conceived it would not be right to say to the senate, you shall do two things together, or neither. he hoped the committee would rise, that the house may not have such power over the business as to keep it back. if the other bill pass the senate, said he, we can take up this, and pass it in a short time. mr. parker thought this a most extraordinary procedure, to say we will not pass the appropriation bill till we know the senate have agreed to that for repealing. he thought the senate had as great a right to exercise their discretion as that house. he never expected to have heard such expressions. this was holding out a _dictum_ for their conduct: this he thought neither fair nor proper. mr. venable thought the bills were connected. he wished to vote merely for finishing the frigates. he hoped the committee would not rise, but that it might be so amended as to add the other bill to it. when he voted for the appropriation, he said, he voted for it only in such a manner as should be reconcilable with his judgment. if the gentleman would waive his motion, and the house would so connect it, he should be gratified. mr. harrison said, as the last gentleman's ideas were fully to his purpose, he should withdraw his motion. on motion being made for connecting the bills-- mr. buck hoped it would not prevail. the only reason he saw to object, (and he thought that very forcible,) was, that it discovered a jealousy in that house of another branch of the government, which he thought very unjustifiable. he had voted for the repeal, but should not vote for the appropriation. he thought they ought to act for themselves, without reference to the other branch. any member may vote which way he pleased, but to say he would not vote for one without they go to the other, was unfair. he could see no justice in such a mistrust from this branch of the legislature. suppose, he said, the bills go to the senate separately, they may concur in the appropriation, and reject the appeal. even in that situation, were it to be left, the executive could not man the frigates, unless they could obtain further appropriations--to obstruct which would be preferable, and would put it out of the power of the senate to embarrass the house. mr. venable said his vote was given without any relation whatever to the senate. he thought any act passed by this house could not, when sent up to the senate, be termed disrespectful, for each branch had a right to act for themselves. he was surprised to hear the gentleman last up say he should not vote this appropriation; for he had heard him say, on a former occasion, that he would vote an appropriation for any treaty, law, or whatever should exist to call for it. mr. v. confessed himself to be of a very different opinion; for he always thought the house had a discretionary power to grant it or not, but that gentleman had long said it had none. mr. buck said, as his doctrines had been called in question, he must beg indulgence to explain. he never said that the house had not a right to judge on the propriety of appropriation in an existing law. he conceived a treaty quite another thing. the president and senate have a constitutional power to make a treaty; in that, he said, he did advocate that that house had no right to withhold appropriations; but in laws, where the power of making appropriations rests partly in that house, they had a right to grant or withhold. this, he said, he had always held. mr. nicholas said, this appeared to him a very unreasonable clamor in behalf of the senate. the gentleman last up seemed very careful not to awaken the jealousy of the senate. how could he know what part would awaken that idea of disrespect? he had formed his mind to vote on the subject, and surely every member might do so, without a fear of showing disrespect to another branch. the gentleman had said that this house may refuse to appropriate for a law. now, suppose the senate refuse to repeal without we appropriate, we are then forced to choose one of two evils. very often, mr. n. said, the house were obliged to appropriate for a law, it may be, so far executed that they could not refuse. suppose the president should, after this, appoint officers to enlist men for the frigates, how could the house refuse to pay them? while a law existed to man these ships, it would be difficult to prevent it: it would enable those who were friendly to the measure to carry it into effect. he hoped, therefore, the house would not run the risk by leaving it open to such possible intrusion. mr. s. smith thought this was a very unfair way of doing business, but he had been used to such things. he thought this form of _tacking_ was very improper and unfair. it had been observed that we were the most free and enlightened people, but he thought those who advocated these measures proved the very contrary. mr. swanwick said, it appeared to him a kind of legislative stratagem. the whole intention of the business could be easily discovered. if there was nothing improper, why should they fear to trust the senate with it? having the yeas and nays on both bills, gentlemen could not easily excuse them for voting for the repeal, as it would go out into the country that many had voted contrary to their arguments. thus we are forced to vote against our own opinion, or not have the frigates finished. he could plainly see that gentlemen meant to defeat the object, and, he thought, in a very unfair way. mr. w. lyman spoke much of the impolicy and impropriety of the measures of those gentlemen who supported naval preparations. some time back, he said, those very gentlemen were advising us to cultivate our land, and not regard commerce--it was a broken reed to depend on; but now, they want to put the nation to an enormous expense to protect that commerce they thought so lightly of! the frigates would cost more than double the money which was at first estimated: this would be a disgrace to any nation. the whole process of the business had been bad, and he had no doubt but the estimate now before the house would be found deficient. though he thought a small navy would be useful, yet, until he saw its process conducted more fairly, and with more discretion, he should not vote a shilling to it: for the waste of money which had been discovered in this, had given him a distaste to it. a remark having fallen from mr. l., on the constitutionality of this appropriation-- mr. w. smith said, that, what the gentleman observed, only respected an army. the constitution says, an appropriation for the army shall not be made for more than two years, but it said not a word about restricting a navy; and it is certain that the framers of the constitution had a view to a navy, as in three different parts it makes mention of it. [here mr. s. read those parts from the constitution.] the question was not whether to repeal the law or not, but whether the appropriation bill was to be _tacked_ to the repeal. when before taken up, a majority voted for two bills, and they are accordingly reported, and now the two are to be united. this, said he, is directing the senate to vote a certain way, because this house saw it right. this was a kind of coercion which would oblige them (if they support their independence, which they certainly will) to reject the repeal. this, he said, was a spirit which every gentleman in the house felt. he therefore hoped there would be two bills. mr. gallatin did not conceive this a question on the constitution; it was not on the power of the house as to the subject of appropriation, but merely on connecting the two bills. he conceived it perfectly right and proper to connect them, because the subject of them was the same. it was not novel: appropriation and repeal had before been connected. indeed, he thought it improper to hold the senate in any consideration at all. he should not be guided by any apprehensions of what they would do. the gentleman last up had said, it was unfair to connect them, as it would oblige members who opposed one to vote for both. now, a majority will always decide, and those in the minority will always be affected. that gentleman would rather take a question on each; but mr. g. said he would rather on both together. but both will not be material, more than in a certain degree. he further observed that a decision had been come to to keep the subjects apart. this, mr. g. said, was only in order to give leave to the committee to report one or two bills. but that could not now affect the decision. the house might now do as they pleased. he looked upon the first act of the law as rather explanatory of the other. a law passed last year for the equipment of the frigates. the first law expired as to the manning them. it is therefore only for fear the word "equipment" should be so construed as to mean "manning," that we wish a connection of these bills. he thought it more candid and fair to have both the objects before the senate at one time than to separate them. if they think it an attack upon their privileges they would act consistently therewith. mr. williams could not see where the difference was, whether the bills were apart or not. he was sorry any jealousy should be discovered towards another branch; if the amendment were to go to the senate they had power to reject any part. the next congress would take a view of the subject, and do what they thought right, as the frigates would not be fit to be manned till then. mr. buck again repeated his objections to uniting the bills. mr. n. smith thought there could be no good reasons for uniting the bills. there had not yet been any appropriation made, and the money was nearly expended; he thought the appropriation should be passed immediately, as he had no doubt but both houses would ultimately unite in this object. if, therefore, any money was to be appropriated, let it be done, and then if the house thought proper to agree to the repeal, it could be done, as no delay ought to be made. the gentleman from pennsylvania (mr. gallatin) said the other day, that he would not, under any situation, vote the supply until he knew whether there was any intention to fit them for sea or not. this, mr. s. thought the principal point; but except that gentleman, with others, thought the ships were to remain in the same situation as at present, it certainly was necessary to agree to the appropriations; this was voted on all hands, though some could not agree to go all lengths. he did not believe many could be found in the house who would wish them to remain and rot on the stocks; but for gentlemen to say they would not agree to grant the supply except the other part was repealed, he thought wrong. it was true, they had the power to withhold even appropriations for the president's salary, senate, &c., but if such opposition was supported, government could not long exist. that house had power over the senate, and, _vice versa_, the senate over that house--each had a right to think and do as they pleased, but it would be wrong in one to curtail the privilege of the other by an ill-timed opposition; this was merely to show a spleen which could not but be to the detriment and delay of business. mr. w. smith rose to answer some observations made by mr. gallatin and mr. venable, and proceeded to show the impropriety of tacking the bills; he said it would produce insurmountable difficulties. he never could agree to this _tortus discordans_ being sent up to the senate. mr. venable answered. the question was then put for tacking the two bills, and carried, ayes , noes . the committee then rose, and the house took up the amendments reported by the committee of the whole. whereupon, the first amendment reported by the committee of the whole house, for adding a new section, to be the second section of the said bill, being read, in the words following, to wit: "_and be it further enacted_, that the sum of ---- dollars be, and the same is hereby appropriated for the purpose of finishing the frigates now building, called the united states, constitution, and constellation; and that the same be paid out of the surplus of revenue and income, which may accrue to the end of the year one thousand seven hundred and ninety-seven, after satisfying the objects for which appropriations have been heretofore made." mr. w. smith said, as the question would first be taken on the amendment and then upon the resolution as amended, a member who wished to vote for the finishing of the frigates, but not for the repeal, would not have an opportunity of showing his sentiments by the yeas and nays. in order that members who thought with him might have an opportunity of showing their vote, he called for the previous question upon the proposition. the speaker declaring that this motion was not in order, mr. w. smith called for the yeas and nays upon the amendment. mr. sitgreaves said, rather than not obtain an appropriation for finishing the frigates, he should vote in favor of the amendment, though he was of the same opinion with the gentleman from south carolina (mr. w. smith) as to the unfairness of the proceeding. mr. dent was of the same opinion. mr. muhlenberg said as the amendment stood annexed to the other bill, he should vote against it; though, if the subject had continued in a separate bill, he should have voted in favor of it. the question was then taken on the amendment, and decided in the affirmative, to , as follows: yeas.--theodorus bailey, abraham baldwin, david bard, thomas blount, nathan bryan, dempsey burges, thomas claiborne, john clopton, joshua coit, isaac coles, william cooper, henry dearborn, george dent, william findlay, jesse franklin, nathaniel freeman, jr., albert gallatin, ezekiel gilbert, james gillespie, henry glenn, christopher greenup, andrew gregg, carter b. harrison, john hathorn, jonathan n. havens, james holland, andrew jackson, john wilkes kittera, george leonard, edward livingston, matthew locke, samuel lyman, william lyman, samuel maclay, nathaniel macon, james madison, john milledge, andrew moore, anthony new, john nicholas, alexander d. orr, john page, john patton, john richards, robert rutherford, john s. sherburne, samuel sitgreaves, thompson j. skinner, jeremiah smith, israel smith, isaac smith, richard sprigg, jr., thomas sprigg, zephaniah swift, philip van cortlandt, joseph b. varnum, abraham venable, john williams, and richard winn. nays.--theophilus bradbury, daniel buck, samuel w. dana, james davenport, george ege, abiel foster, dwight foster, chauncey goodrich, roger griswold, robert goodloe harper, thomas hartley, john heath, william hindman, francis malbone, frederick a. muhlenberg, william vans murray, josiah parker, john read, samuel sewall, nathaniel smith, samuel smith, william smith, john swanwick, george thatcher, and peleg wadsworth. the bill was then recommitted to a committee of the whole, in order to have the blank for the sum to be appropriated for finishing the vessels inserted, and was filled with $ , . tuesday, february . _negotiation with the mediterranean powers._ mr. w. smith moved that the house should go into a committee on the business, which would require the galleries to be closed; the speaker accordingly put the question for going into a committee of the whole on the bill to authorize a negotiation with the mediterranean powers, which, being carried, the galleries were cleared accordingly. after the galleries were cleared, the bill was agreed to with amendments, and ordered for a third reading to-morrow. on motion that the house come to the following resolution: "_resolved_, that the injunction of secrecy upon the members of this house, so far as it relates to that part of the communication made by the president, by his message of january , which has been printed, be taken off, and that all future debates and proceedings thereon be had with open doors." a motion was made to insert, after the words "be taken off," "together with the letter of messrs. barlow and donaldson, of april , ." the question on the amendment was taken by yeas and nays, and lost--yeas , nays . the main question was then taken by yeas and nays, and resulted--yeas , nays . reports of the secretary of state, relative to the present situation of affairs with the dey and regency of algiers, accompanying the following confidential message from the president of the united states, received the th of january, : _gentlemen of the senate, and of the house of representatives_: herewith i lay before you, in confidence, reports from the departments of state and the treasury, by which you will see the present situation of our affairs with the dey and regency of algiers. g. washington. united states, january , . _to the president of the united states, the secretary of state respectfully makes the following brief representation of the affairs of the united states, in relation to algiers_: when colonel humphreys left america, in april, , he was accompanied by joseph donaldson, esq., who had been appointed consul for tunis and tripoli; and him colonel humphreys was authorized to employ in negotiating a treaty with algiers, while he should proceed himself to france, for the purpose of obtaining the co-operation of that government in this negotiation. they arrived at gibraltar on the th of may. colonel humphreys concluded that it was expedient for mr. donaldson to go first to alicant, rather than algiers, in order to be near at hand, to ascertain facts and profit of occasions. he gave him instructions accordingly; and having also instructed mr. simpson, our consul at gibraltar, to renew our peace with the emperor of morocco, colonel humphreys sailed from gibraltar the th of may, and arrived at havre de grace on the th of june; from whence he set off immediately for paris. the object of his mission was communicated by our minister, colonel monroe, to the committee of public safety. on the st of july he had received only a verbal answer, that the french government was disposed to interest itself, and to do every thing in its power, to promote the accomplishment of our wishes on the subject in question. on the th, assurances were received that immediate measures should be taken for giving particular instructions to the agents of the republic, to use its influence in co-operating with us. the multiplicity of affairs with which the officers of government were occupied, and the getting from london a sum of money necessary to purchase the usual peace presents, prevented a conclusion of this arrangement at paris until september. it had been judged expedient, by colonel humphreys and colonel monroe, that joel barlow should be employed in the negotiation with the barbary states, and his consent had been obtained. by the th of september, all the writings on the part of colonel humphreys were prepared for mr. barlow, to proceed with the instructions and powers from the government of the french republic to its agents in barbary, in favor of our negotiation. colonel humphreys left paris the th of september, and reached havre the th, where he found the master and mate of the united states brig sophia, both sick with fevers. while waiting there impatiently for their recovery, he received intelligence from our consul at marseilles, that mr. donaldson had concluded a treaty of peace with the dey of algiers; nevertheless, colonel humphreys thought it expedient that mr. barlow should proceed with the presents prepared and preparing at paris; for, if not needed at algiers, they would be wanted in the negotiation with tunis and tripoli. about the th of october, colonel humphreys sailed from havre, and after a stormy passage of more than forty days, arrived at lisbon on the th of november. there he found captain o'brien, who had arrived about the st of october, with the treaty with algiers. on the d of september mr. donaldson arrived at algiers, and on the th the treaty was concluded, and the peace presents immediately given, by a loan. mr. donaldson, knowing that funds had been lodged in london to answer his stipulations, engaged to make the payments in three or four months. colonel humphreys had received advice, under date of the th july, from the messrs. barings, in london, to whom the funds had been remitted, that, having made progress in the sales of the united states' stock, they should hold, at his disposal, the whole of the value of $ , , meaning to furnish, by anticipation, the value of that part which remained unsold, if the service of the united states required it. colonel humphreys, counting on the money as always ready after this period, sent captain o'brien from lisbon to london, in the brig sophia, to receive it. owing to contrary winds, she did not leave lisbon till the th of december. the other details, relative to the pecuniary transactions, appear in the report of the secretary of the treasury. the disappointments in the pecuniary negotiations, put the treaty in jeopardy; the dey threatened to abandon it, and it was with extreme difficulty that it was prevented. mr. barlow did not arrive at alicant until february, , where he proposed to wait the arrival of the funds: but, after a little time, his intelligence from algiers showing that our affairs were in a critical situation, he determined to go thither immediately, with the hope of soothing the dey. he arrived there the th of march; they had before prolonged the time to the th of april for the payment of the stipulated sums. on the d of this month the dey declared what should be his final determination--that in eight days mr. barlow and mr. donaldson should leave algiers; and if, in thirty days after, the money was not paid, the treaty should be at an end, and his cruisers should bring in american vessels. under these circumstances, and as the last hope of saving the treaty, they were induced to offer the present of a frigate--this fortunately succeeded. for the particulars of this transaction, the secretary begs leave to refer to the enclosed letter from messrs. barlow and donaldson. colonel humphreys not deeming himself authorized to confirm this promise of a frigate, referred the matter to the executive of the united states; and for this end despatched captain o'brien, in the brig sophia, to america. there was evidently no alternative; and the promise was confirmed. the frigate is now building in portsmouth, new hampshire, and is expected to be finished in the spring. captain o'brien returned to lisbon, where he arrived on the ---- of july. colonel humphreys had advantageously negotiated bills on london for $ , . this sum was embarked on board the sophia, and, on the d of august, captain o'brien set sail for algiers. he has not since been heard of, and there is room to fear that some misfortune has befallen him. the money was insured at a small premium, against the danger of the seas; against all risks they demanded so high a premium as colonel humphreys judged it inexpedient to give, seeing the sophia was a vessel of the united states, having a special passport from the president, as well as a passport in the turkish language, under the seal of the dey of algiers. such arrangements have been made by mr. barlow and mr. donaldson, at algiers and leghorn, as will doubtless insure the payment of the $ , originally expected from the latter place; and the same house have become engaged to the dey and regency for the residue of the money due as the price of peace, without which he would not agree to the redemption of the captives. the secretary of the treasury estimates these further sums to be provided to fulfil the terms of the treaty $ , for two years' annuities to the dey , to which are to be added the , sequins promised by mr. barlow and mr. donaldson, mentioned in their letter , and the expenses of the captives performing quarantine at marseilles, and transporting them to america, estimated by the consul at marseilles, at about , ------- , on the st ultimo i received a letter from mr. barlow, dated the th of july, informing that the agent, mr. famin, at tunis, who had been recommended to him by the french consul herculias, had concluded, with the bey of that regency, a truce for six months, from the th day of june last, and that without any presents. timothy pickering, _secretary of state._ department of state, january , . wednesday, february . _mediterranean powers._ the bill for making appropriations to defray the expense of negotiations with mediterranean powers, was also read the third time. the provisions of this act, (which has been the subject of the various discussions which have lately taken place with closed galleries) are to the following effect: "that the president of the united states be, and he is hereby authorized to apply a sum not exceeding , dollars and three cents, to the expenses which may have been incurred in any negotiations with mediterranean powers, beyond the sums heretofore appropriated; and that the said sum of , dollars and three cents, be, and the same is hereby appropriated for that purpose; and that a further sum not exceeding , dollars and cents, be, and the same is hereby appropriated for discharging the two first years' annuity to the dey and regency of algiers, pursuant to treaty, in addition to the gum appropriated for that purpose by the act of the sixth of may, ." on the question being put that the bill do pass, mr. greenup said he never liked the bill in any shape whatever; he would therefore express it now. he then called for the yeas and nays, which were taken, and stood ayes , noes , as follow: yeas.--fisher ames, abraham baldwin, theophilus bradbury, nathan bryan, daniel buck, dempsey burges, thomas claiborne, joshua coit, isaac coles, william cooper, james davenport, henry dearborn, george dent, george ege, william findlay, dwight foster, jesse franklin, nathaniel freeman, jr., albert gallatin, ezekiel gilbert, henry glenn, chauncey goodrich, roger griswold, robert goodloe harper, carter b. harrison, thomas hartley, jonathan n. havens, thomas henderson, william hindman, aaron kitchell, john wilkes kittera, george leonard, matthew locke, samuel lyman, james madison, francis malbone, john milledge, andrew moore, frederick a. muhlenberg, john nicholas, alexander d. orr, john page, josiah parker, elisha r. potter, john richards, robert rutherford, john s. sherburne, samuel sitgreaves, thompson j. skinner, jeremiah smith, nathaniel smith, israel smith, isaac smith, richard sprigg, jr., thomas sprigg, zephaniah swift, george thatcher, richard thomas, mark thompson, philip van cortlandt, joseph b. varnum, peleg wadsworth, and john williams. nays.--david bard, thomas blount, samuel j. cabell, gabriel christie, john clopton, james gillespie, christopher greenup, john hathorn, john heath, james holland, andrew jackson, george jackson, william lyman, samuel maclay, nathaniel macon, william strudwick, john swanwick, abraham venable, and richard winn. on motion of mr. gallatin, the title was changed to "a bill to authorize the president of the united states to apply further sums to defray the expenses of the negotiation with the dey and regency of algiers."[ ] _john cleves symmes._ on motion of mr. gallatin, the house took up the bill in addition to an act for granting certain lands to john cleves symmes and his associates; when mr. coit moved to strike out the first section. his object, he said, was to gain information, particularly with respect to the survey. mr. gallatin (who was chairman of the committee which made the report) gave a concise history of the business; which satisfied mr. coit, who withdrew his motion; and the bill was ordered to be read a third time to-morrow. the particulars of this case are as follows: john cleves symmes and his associates entered into a contract with the united states in the year , for a million acres of land in the north-western territory, at a time when the geography of that country was not well understood. the tract was to extend twenty miles up the great miami to the little miami; but when this line came to be measured, it was found that it cut the little miami in several places on land which had been reserved by virginia at the cession of this territory to the united states. mr. symmes was down in the country before he knew the line thus drawn would thus cut into the lands of virginia. the first thing he did was to take possession of the country which is between fort washington and the little miami, and to sell as much as he could of it. general st. clair, the governor of that territory, threatened to drive mr. symmes and the settlers off this territory to which he had no right. the innocent settlers, who had purchased the land of mr. symmes, sent forward representations of their case to the president, which, together with the representations of the governor, produced an act to change the boundary line of the purchase, which was passed april , . this act describes the boundary line of the tract of land to be between the two miamis and the ohio. mr. ludlow was sent to survey it in , when it was found, that instead of there being one million of acres, there were only five hundred and forty-three thousand nine hundred and fifty, which was duly surveyed, and the survey lodged in the treasury office on the th of january, . here arose the first difficulty. the act passed to change the boundary line could not take place without the consent of mr. symmes. in consequence, the law was said to be enacted at the request of mr. symmes. in , mr. s. had not made any request, consequently the law was a nullity. he might at that time have said, he would not have the land upon any other than the original contract, and that it was the business of the united states to make up the deficiency; and, if he had so acted, it is probable congress would have been obliged to have found him one million of acres of land, agreeably to his contract; but, at that time, lands were not raised to so high a price as they were now, and mr. s. did not think it necessary to avail himself of his contract. on the th april, , a petition was presented in his name, stating, that from an advance in the price of certificates, resulted the impossibility of fulfilling his contract, and prayed that an abatement might be made in the price of the land. on the th september, , instead of saying he would not abide by the new boundary, he requests an alteration may be made in the boundary. notwithstanding this request, mr. s. now says, he did not know any thing of the survey, though more than nine months since it was made. at first sight, it would be supposed the contract was void for want of fulfilment; but as he says he never received from the public a counterpart of the contract (though it is generally supposed he had in some way got possession of a copy, but no proof existing of it,) the claim was not forfeited. a circumstance was mentioned which seemed to convey a strong supposition that mr. s. was acquainted with the survey. the day following the request he had made for the new boundary, was issued to him a patent for three hundred thousand acres, referring to that survey. mr. s. now objects to the releasement which was given of his first purchase as not being complete. it was stated that he had taken possession of land to which he was no way entitled. the necessity of the act being immediately passed appeared from an advertisement (which mr. gallatin read from a newspaper of that country) inviting persons to come and purchase, under an assurance that his original purchase would be completed. mr. g. said that he had been offered some part of the land at a dollar an acre; he was informed that it would sell for two to settlers. mr. g. said he knew it to be very capital land; and if the four hundred and fifty thousand acres which remained would sell for nine hundred thousand dollars, while he only gave three hundred thousand for the whole, he would have made a good bargain. thursday, february . _direct and indirect taxes._ income and expenditure. mr. gallatin hoped that the motion would not prevail. he believed he was the only person who had said, that he was not desirous that the bill laying a direct tax should pass this session. for it was true, that, although he was a strong advocate for a direct tax--although he thought a sufficient permanent revenue could not be drawn from any other source, yet he did not wish the law to pass during the present session; and the reason was, because he had not a sufficient reliance upon his own opinion, to wish a subject of this sort to come into being against the opinion of so many members of this house as appeared to be opposed to it. when the united states shall think it necessary to go into the measure, he trusted it would pass with great unanimity. at present, he doubted whether a majority of the country was not against the measure, especially when he not only saw so great a division in that house, but apparently a local division, as he believed only four members east of hudson's river, and but five south of virginia had voted for the measure, by which it appeared to be a mode desired only by the middle states. until, therefore, gentlemen from those parts had returned home and consulted their constituents upon the subject; until he knew that the law could be carried into effect with more unanimity than at this time appeared, he did not wish to press it. he was willing, therefore, to take all the blame which was imputable to this circumstance upon himself. he never wished the powers of congress to be exercised in a way which should not meet with pretty general concurrence. yet, had he thought the situation of the united states had been such, that additional revenue was absolutely necessary to support the public credit, and it could not have been conveniently raised from any other source, every other consideration would have given way to that necessity. but he did not think that any thing which had been said by the gentleman from south carolina showed that there would be any deficiency in the revenue for the present, which would require additional taxes to supply it. he would just observe, that the great argument in favor of direct taxes--an argument which had almost wrought conviction upon the mind of the gentleman from south carolina himself--was the uncertainty of a revenue derived from commerce; and yet, from this circumstance, the friends of indirect taxes wish to extend that plan to the utmost, and raise every thing from it. he should have drawn different conclusions; and from that uncertainty, he should have wished never to have gone beyond those bounds which they knew were safe. as to the receipts of , mr. g. said, we had well ascertained them, because they arose from the importations of , which they knew amounted to , , dollars, and which sum, with the internal duties, would be fully adequate to the expenses of the government for this year. yet some gentlemen thought the calculation too close, and therefore the additional duties before them had been consented to, which he believed every one must acknowledge would be fully equal to any deficiency that could possibly arise. the arguments of the gentleman from south carolina applied to the year . he said we did not know what might be the amount of the importations of the present year; that it might be less than last year, and therefore, that revenue ought to be provided to supply the deficiency, if there should be any. the arguments would be good, if the gentleman's data were true; but he had forgotten that the expenses of would be less than those of the present year by , dollars, including not only the current expenses, but the instalment of the dutch debts, which in that year would only be , dollars. the instalment this year is , , so that in this item there will be a difference of , dollars; in the next place, the , dollars which this year has been agreed to be paid to the dey and regency of algiers, will not occur again; and also, the , dollars appropriated for finishing the frigate, would not be to provide another year. these three items made the , dollars which he had mentioned. in addition he would add, that this year there had been a charge of , dollars for the defence of the frontier in ; but perhaps something might be wanted in that quarter another year, and therefore he would pass over that sum. but he thought there could be no danger of a want of revenue in the year . mr. g. said, he would not pretend to say that it would not be desirable to increase the revenue, in order that they might pay a part of such instalments of the foreign debt as would become due after the year . certainly the sooner our debt could be paid, the better; but he meant only to show that there was no necessity for increasing the revenue for . if it were necessary to raise additional revenue, it would be for two principal objects, the payment of the dutch debt and the eight per cent. deferred stock; but as these did not become due till the year , they were not under the necessity of providing the means for it at present. during the next session, mr. g. said, they should have time to compare the two systems of taxes together, and to discover which offered the best and most permanent sources of revenue. for the reasons he had given, he should be opposed to the motion. mr. w. smith said, he should not adduce many arguments to show the propriety of advancing the duty upon this article any more than that upon any other; but he wished to bring before the committee a true statement of the receipts and expenditures of the united states, in order to show what sum of money would probably be wanted to answer the demands of the united states. as he differed considerably from the gentleman from pennsylvania as to our real wants, he considered it as his duty to lay this statement before the committee. he had investigated the subject with as much accuracy as possible. he had attended to the documents which had been laid before them, to the laws which would probably pass this session, and to the probable increase of revenue. the result of this examination was, that there would be a deficiency of about a million of dollars. to what the additional imposts already agreed to would amount, he could not say, but he believed they would make , dollars, which would leave a deficiency of , dollars. he made the following statement: _expenses of ._ civil list, $ , military and naval establishment and pensions, , , deficiency of , , algerine appropriation, , interest of domestic debt, , , interest on dutch debt, , instalments do do. , , premium remitt. &c. , appropriations for frigate, , --------- , , ========= _revenues of ._ impost, $ , , internal revenues, , post office, , bank stock, , stock redeemed, , sundries, --------- , , additional imposts in , , --------- , , probable deficiency of revenue, , --------- , , ========= it would be observed, mr. s. said, that the gentlemen from pennsylvania and maryland, had calculated the impost at , , dollars, whilst he made it only at , , , which he took from the secretary of the treasury's statement, and he believed this was the safest calculation. he would not go into any very long argument on this subject, because it had frequently been under discussion. mr. gallatin inquired from what document mr. smith took his calculations? mr. w. smith answered, from the report of the secretary of the treasury, which was calculated upon a permanent plan. in calculations on the subject of revenue, the largest amounts should not be taken. it was not policy in gentlemen to adopt that plan; they should make allowances for deficiencies and accidents. the situation of this country at present required it, and it would be safe, prudent, and discreet, to do so. the secretary of the treasury had estimated the internal revenue at , dollars, while those gentlemen made it , . this they stated from the revenue of last year, which it was probable would be considerably more than this. he thought there was as much reason for taking one as the other statement; and the government would be exposed to hazard and danger, unless allowances were made for deficiencies. the deficiency, according to his calculation, was , , dollars, and after deducting from that sum , for the additional duties in the bill before them, there would remain a balance of , dollars. admitting the gentleman's own statement to be true, there would still be a deficiency of , dollars, and this without making any allowance whatever for accidents and occurrences which will always happen, without making any provision for the purchase of the public debt, which might at this time be purchased to great advantage. if there had been money in the treasury for the purpose, instead of paying the debt at par, it might have been bought up at or s. in the pound. and he was of opinion, from the present situation of things, the public debt would remain low, and that a surplus in the treasury might be well employed in purchasing it. so much for the revenue and expenses of the present year. with respect to , there was no necessity to go much into that subject. the gentleman from pennsylvania had estimated the instalment of the dutch debt, payable in this year, at , dollars only; but he asked whether it would be wise to pay only that sum? and whether it had not been in the contemplation of that gentleman, as well as others, to pay as much as they could yearly? he knew they should not be obliged to pay more; but he believed it would be a wise policy to pay an equal sum every year. that gentleman made another deduction of , dollars, which had been granted to the dey and regency of algiers this year; but might they not expect items which they did not contemplate, to this amount? contingencies, he said, occurred, which always swelled the expenses greater than were contemplated. there was always something of an extraordinary nature occurring to call for money; either an indian war, or insurrection, depredations of foreign powers, or attacks by the algerines. there was no guarding with certainty against them. the next deduction was , dollars for the frigates. whether this would be saved or not, was uncertain. the next house might agree to go on with the frigates. upon the whole, mr. s. said, it would be prudent to provide a sufficiency of revenue, and there was no prospect of getting it from any other than the objects contained in the bill before them. a land tax was agreed to be laid aside for the present, as gentlemen from the eastward seemed wholly against it, and those of the middle states seemed to have grown lukewarm upon the subject. the duty on stamps, which would have provided considerable revenue, was also laid aside. they had agreed to lay low duties upon distilled domestic spirits; no increase could therefore be expected from that quarter. they could, then, only resort to such articles of impost as would be likely, from their general demand and other circumstances, to produce additional revenue. as, therefore, no prospect appeared of getting other revenue than by the article before them, he should be compelled to agree, though with reluctance, to the advance of the duty on sugar. with respect to their lands, they had authorized public stock to be received in payment; and, though he thought this a very valuable regulation, both for facilitating the sale of the land, and for paying off the debt, the lands, on this account, would not produce much cash into the treasury. mr. s. smith said, very early in the present session, he read, with some attention, the report of the secretary of the treasury on the subject of direct taxes. he cast his eye upon certain articles which he thought proper subjects upon which to raise further sums from indirect sources, among which were salt, sugar, tea, and the whole of the per cent. class of goods; he communicated his sentiments to other gentlemen, and they had been brought forward. he supposed the house would have gone into a system of direct taxes. this he had always considered as a difficult subject, and he never could, himself, form a plan adequate to effect it; but he was desirous that the subject should have been taken up, that in case of extremity it might be called into operation. he did not think any immediate wants of the revenue required this tax to be put into execution, but he wished to take it into consideration, to see what could be done with it. he had still his doubts whether it could be carried into execution; if it could, it would doubtless form a valuable source of revenue, which could not be injured. he had no doubt, however, of the present revenue being equal to our present wants. the gentleman from south carolina (mr. w. smith) had taken his calculations from the report of the secretary of the treasury; but the secretary went into a permanent calculation for a period of years, in the course of which he calculated the sinking of the whole debt. the trade of , mr. s. said, would give nearly a million of dollars; of course there could be no apprehensions upon the minds of gentlemen that the receipts of would not be equal to the wants of government. the tax upon sugar would produce , dollars. the gentleman from pennsylvania (mr. gallatin) was correct on this subject. the gentleman from south carolina (mr. w. smith) had said, it was not wise to calculate upon the highest returns; but mr. s. smith said it was right to calculate upon a preceding year, and when they knew that there would be received in this year from , dollars to one million, there could be no doubt of the year falling far short of that sum. for he was not one of those who thought the revenue arising from this year would be much inferior to that arising from the last. the gentleman from south carolina (mr. harper) had supposed that the british spoliations had not affected our revenue, but that those of the french would be severely felt. he saw no difference between them, and believed they would be felt alike in proportion to their extent. [mr. harper explained.] he believed the united states would only consume a certain portion of the goods imported; the rest would be re-exported, and the drawback received upon them; and, as he did not believe the consumption of the united states had been lessened, it would follow that it had been the re-exportation which had been diminished, and, of course, that it would not be the duties which would be decreased, but the drawbacks. this being the case, little was to be apprehended from a defalcation of the revenue this year. indeed, he was of opinion, that the revenue arising from the present year, would be equal to any preceding year. the expenses of would be as follows: estimate for the year . instalment due on part of the dutch debt, with interest on the whole debt, together about $ , annual per cent. and per cent. stock, , , annual interest on per cent. do. , ditto on - / per cent. do. , ditto on - / per cent. do. , ditto on supposed unfunded debt, , ditto on bank loans, , ----------- , , internal expenditures (as below) , , ----------- $ , , =========== civil list, mint, and diplomatic, (agreeably to the secretary's report, estimated on the session of six months,) $ , deduct savings arising on the session of four months only, , ----------- , bill for foreign intercourse, , light-houses, , miscellaneous claims, , ----------- $ , =========== military department. pay of four regiments and artillery corps, $ , subsistence, , clothing, , bounties, , hospital department, , ordnance , ----------- , amount brought forward, $ , two instructors, , quartermaster's department, , defensive protection, , indian department, , contingencies of war department, , repairing fortifications, , military pensions, , naval department, , balance due on algerine business, , ---------- internal expenses of , $ , , the expenses of the quartermaster's department would in future be considerably lessened; for, said mr. s., heretofore great expense had been incurred by land carriage, which in future would be avoided, as the forage would all be conveyed by water. indeed it had not been an unusual thing for the horses employed in conveying forage from one post to another, to eat the whole of it in their journey to and from their destination, and some horses had been known to die from want on the road. the conveyance being now by water, a great destruction of horses would be prevented, and he doubted not that one hundred thousand dollars would be saved under this head. friday, february . _amy dardin._ the house proceeded to consider the report of the committee of claims, of the sixth ultimo, to whom was referred the petition of amy dardin, which lay on the table; whereupon, the said report was read at the clerk's table, in the words following, to wit: "that the most important, and all the material facts respecting this claim, are stated in the former report of the committee appointed to consider the said petition. to that report the committee now ask leave to refer. whatever justice there might originally have been in this claim against the united states, it is now, and for many years past has been, as clearly within the statutes of limitation, as a multitude of others, which have been rejected. the committee regret that no relief can, with propriety, be granted to the petitioner, upon her application. so many evils would result from a suspension of the limitation act, for the admission of claims similar to the one under consideration, the committee cannot recommend that measure to be adopted. they are of opinion the prayer of the petition ought not to be granted." the question was taken that the house do agree to the said report, and passed in the negative-- to ; when mr. gallatin moved that a committee be appointed to bring in a bill in favor of the petitioner. this motion occasioned some debate. mr. gallatin said, he rejoiced in the vote which had passed in respect to the report before them, as it was a precedent against the act of limitation. when a claim was clear, it was a denial of justice not to pay the debt. he did not think it was more justifiable in a government to refuse to pay its debts, than it was in individuals to do so. though an act of limitation had been passed, they ought only to consider it, in a modified sense, as a guard against fraud; but, in cases where they were convinced a debt was justly due, he did not see upon good principles they could refuse to pay it. he was sure there was not a member on that floor that would do so in his individual capacity. nor did he believe they needed to be operated on by the fear of a number of these claims being brought: he believed their number was small. but, said he, shall we fear that we shall be called upon to pay a few more just debts? he trusted so unworthy an apprehension would not prevent them from doing what was right. the act of limitation was produced, he said, by an incapacity to pay the claims which were made upon government, and now they took advantage of that capacity, by refusing to pay the just demands which were made upon them. the certificates which had been given, not worth more than one-eighth of their nominal value, had been scattered all over the united states, and the distance from the seat of government had been the reason application had not been made for payment. he spoke from his own knowledge. he had some of them put into his hands. some of them he was fortunate enough to get paid before the act of limitation passed; others were yet unsettled. it was only since the erection of this government, which had given them the ability to pay, that these claims were brought forward; for six or seven years every kind of claim was mustered, and the public debt was considerably swelled by them, but now a contrary extreme was observed, and no claim, however just, had a chance of being satisfied. he had never troubled the house on a subject of this kind before, but he had taken advantage of the fortunate decision of this morning to say a few words on the subject. messrs. heath, macon, williams, and d. foster, were against a committee being appointed to bring in a bill; they hoped no partial regulation would take place, but that if any exception was made, from the operation of the act of limitation, it would be done in a general way, as there was a great number of claims equally well entitled, with mrs. dardin's, to payment. indeed, mr. d. foster, chairman of the committee of claims, (who was not present when the question was taken upon the report,) said, if this claim was granted, it would bring forward a thousand others. the report, petition, and papers, were committed to the whole house on monday. saturday, february . _suability of states._ on motion of mr. harper, the house then resolved itself into a committee of the whole, on the report of the select committee on the resolution sent from the senate, authorizing the president to make inquiry of certain states whether they had adopted the proposed amendment to the constitution with respect to the suability of states. the select committee did not confine themselves to this single amendment, as reported from the senate, but went back to the year , when twelve amendments were proposed by congress; for though they state eleven states out of fourteen had ratified ten of these amendments in the year , yet they were of opinion that a doubt might arise whether eleven states ought to be considered as the three-fourths of fourteen; they therefore wished the president to be requested to make inquiry also from the non-ratifying states on the subject of these ten amendments. mr. nicholas said, the resolution of itself was only exceptionable as it had connection with the statement which went before it, in which it was made a question whether the ten last amendments of the twelve proposed by congress to the states in march, , were ever made part of the constitution. he did not wish a doubt to be expressed on this subject. this doubt, in the opinion of the committee, it seemed, rested on a supposition that eleven were not three-fourths of fourteen. he could not conceive how any doubt could arise on this subject, since it must be acknowledged by every one that eleven was more than three-fourths of fourteen. if the objection arose from fourteen not being divisible in equal fourth parts, it was an objection to the constitution as originally made. it was formed by thirteen states, which was no more divisible into fourths than fourteen. on this ground, an amendment could never have been made to the constitution. he hoped the chairman of the committee would give them some information on the subject. mr. harper said, it was not of much importance whether the committee had doubts, or whether those doubts were well founded. the committee stated they had these doubts. he had them; not whether eleven was three-fourths of fourteen, according to arithmetical calculation--every school boy knew, that, in that view, eleven was more than three-fourths of fourteen; but it was, whether you could make a division of states. he believed it could not be done; he believed there must be twelve ratifying states to be three-fourths, as intended by the constitution, because that number would be three-fourths of sixteen, which was the nearest number to fourteen capable of four equal divisions. whether this doubt was well founded or not, there could be no harm in directing the inquiry to be made; it would be made as soon for thirteen amendments as for one, and if any other state should have ratified the ten amendments in question, all doubt would be removed. mr. h. noticed an error or two which had escaped the committee in their report. mr. gallatin said, the resolution under consideration went to direct the president to apply to all those states, by whom, as far as can be known from the official documents heretofore transmitted, all or any of the amendments at any time proposed by congress still remained to be ratified. there could be no occasion to make the inquiry with respect to all these amendments, unless it were taken for granted that none of them had yet been ratified. he was, therefore, of opinion, with the gentleman from virginia, that such an application would be very improper, as bringing the ten last amendments into doubt, which he believed to be as much a part of the constitution as any other article in it; he also thought them a very valuable part, and not to be trifled with. but, upon what ground, said mr. g., do the advocates of this report prove that is not three-fourths of ? the idea was so novel that he could scarcely understand what principle they adopted in order to create a doubt on their minds on this subject. to him the position that was more than three-fourths of fourteen appeared to be one of those self-evident axioms which hardly admit of a proof. the principle on which the doubt arose must be so very nice, so abstract, that he did not know whether he was capable of comprehending it. anxious as he was to avoid saying any thing which might be construed as misstatement, he would, however, attempt to analyze what he conceived to be the ground of the gentleman from south carolina, (mr. harper.) it appeared to him that that gentleman thought three-fourths in itself was not a fraction of the unit, was not a number conveying to the mind the simple idea of a fraction; but that it was a compound of fractions, and that the only way by which the idea of three-fourths could be conceived was by a decomposition. because the idea of three-fourths was by our numerical arithmetic expressed by the two figures / , that gentleman was unable to conceive what it meant except by decomposition, by dividing the unit into four equal parts and multiplying the result by . and if that idea of three-fourths had happened to be expressed by the fraction nine-twelfths, (which was the same thing as three-fourths,) that gentleman could not have conceived it except by dividing in the first place the unit into twelve parts and then multiplying the result by nine. in fact he denied the existence of any number, part of a unit, except as it consisted of an aggregate of such parts as the unit could exactly be divided into. thus, when speaking of fourteen states, although he (mr. gallatin) could at once understand that three-fourths of fourteen was ten-and-a-half, and, therefore, (admitting, as he did together with that gentleman, that the vote of a state was indivisible) that eleven states were more than three-fourths of fourteen, the gentleman from south carolina proceeded in a different way. the fourth part of fourteen being three-and-a-half, he says that, as a state cannot be divided, you must take four states instead of three-and-a-half for the fourth part of fourteen, and then multiplying these four states by three, in order to get the three-fourths, he concludes that twelve states are three-quarters of fourteen--that the twelve states out of fourteen are necessary to ratify the amendments. he believed the gentleman would allow that he had not misstated his opinion. let us now see, said mr. g., how this doctrine will operate. it would go to prove, in some instances, that three-fourths of a number is greater than the whole. suppose, for instance, the case of five states. one-fourth of five is - / ; but as the vote of a state cannot be divided, you must call it two; or, as the gentleman expressed it, five not being divisible into four equal parts, you must take the nearest number to five capable of such division, that is to say , the fourth part of which is two; two, therefore, must be considered as the fourth part of five states, and as three multiplied by two is six, it follows, according to that gentleman's doctrine, that the three-fourths of five is six! suppose that, in the constitution, instead of the expression three-fourths, it had been said that nine-twelfths were necessary. the number of states when the constitution was framed was thirteen. in that case one-twelfth of thirteen being one and one-twelfth, you must, the vote of a state being indivisible, call it two; so that in that way of reckoning, nine-twelfths (which is the same thing as three-fourths) of is ! consequently, the consent of eighteen states would have been necessary in order to ratify any amendment to the constitution of a nation consisting only of states. let us, said he, examine a little farther. the same part of the constitution which provides for amendments of the constitution, says, that an amendment shall be proposed by two-thirds of both houses of congress; but he supposed the vote of a man was no more divisible than that of a state. he wished to know, therefore, how the gentleman would, on his principle, calculate what were two-thirds of the members present when their whole number was not divisible by three? in making treaties he wished to know what was meant by two-thirds of the members of the senate present? if the number present happened not to be divisible by three, would that gentleman say, that, in that case, the next number above the number present must be taken, which would be divisible by three, and that if two-thirds of that number did not concur in the vote for the treaty, no treaty should be ratified? on that principle, in some instances, a greater proportion of the senate would be necessary to ratify a treaty than had been usually understood, according to the generally received opinion of the sense of the constitution in this respect. upon the whole, he believed it would be best to reject the report, as, besides the objections alluded to, it was confessedly inaccurate in some of its parts, and adopt the resolution sent from the senate, which applied only to the amendment respecting the suability of states. if the house meant to go any further, they might introduce the first and second amendments proposed at the same time with the other ten, but which had not yet been ratified. mr. harper said, he would add a word or two to what he had already offered on this subject. he did not know whether the house thought with him on this subject, that it was a doubtful point whether the ten amendments in question had been ratified according to the sense of the constitution. if they did, they would of course, vote for the report. the gentleman from pennsylvania, he acknowledged, had not only shown his knowledge in arithmetic, but also his wit, which had not until now been brought before them. in the enjoyment of the last he had participated in common with the house. mr. dayton (the speaker) was in favor of rejecting the resolution reported by the select committee, as it embraced too many objects, and held out a kind of invitation for states to come forward and propose amendments to the constitution. he trusted the first of the amendments, proposed in , relative to the proportion of representation, never would be agreed to, as it would have extremely mischievous effects. indeed, if any thing were done with respect to that amendment, he should think it ought to be to request those states which have not adopted it, not to do it, and those who have agreed to it, to revoke their vote in favor of it. the question was then taken on the resolution reported, and negatived, without division. the resolution was as follows: "_resolved_, that the president of the united states be requested to apply, as speedily as may be, to all those states, by which, as far as can be known from the official documents heretofore transmitted, all or any of the amendments, at any time proposed by congress, still remains to be ratified; and to obtain from them authentic information of the proceedings had by them, respectively, on the subject of those amendments, or any of them." the question was then taken on the resolution of the senate, and agreed to. it was as follows: "_resolved by the senate and house of representatives of the united states of america in congress assembled_, that the president be requested to adopt some speedy and effectual means of obtaining information from the states of connecticut, new jersey, pennsylvania, maryland, virginia, kentucky, tennessee, and south carolina, whether they have ratified the amendment proposed by congress to the constitution, concerning the suability of states: if they have, to obtain the proper evidences thereof." _accommodation of the president._ on motion of mr. gallatin, the house resolved itself into a committee of the whole on the bill to accommodate the president of the united states; when mr. henderson said, he wished for information on this subject, as he had not sufficient to convince him of the propriety of granting , dollars, in addition to the furniture now in possession of the president; he therefore moved to strike out the , , for the purpose of inserting , . the bill informed them that this sum, in addition to what might arise from the sale of such of the present furniture as may be decayed, out of repair, or unfit for use, was to be laid out in furnishing the household for the president. it was very lately that they had received a proposition from the senate to advance the salary of the president , dollars; the bill was rejected by that house. it appeared to him that this bill went to effect the same thing in a different way. if the object was merely to furnish the household of the president, he thought a much less sum would be adequate to that purpose. he thought , , with the proceeds of the sale of such of the present furniture as was unfit for service, might be sufficient. he had no doubt that the sum would make the furniture of the president for four years to come equal to what it had been for four years past. mr. nicholas wished the gentleman would leave the sum blank, instead of inserting , . mr. henderson consented. the question was taken, and negatived-- to . the committee then rose, and the house having taken up the subject-- mr. nicholas said, as a majority of the house was against striking out this sum, he wished to have some information why this sum was fixed upon, and for what purpose it was to be applied. no one wished more than he did to place the president in a situation conformable to his station; but according to his information, this sum was more than was given to the present president on his entering upon the office, though there remained the whole of the furniture, most of which was worth as much at this time as it was when first purchased. mr. sitgreaves said, he would give to the gentleman all the information which he had on the subject. in the year or , by a resolution, of the old congress, an household was established for the president of congress. this remained until the present government went into operation in the year . it was then resolved, that mr. osgood should be requested to fit up the house in a proper manner for the reception of the president of the united states. in that year the law passed for compensating the president of the united states, which enacted that a salary of , dollars should be allowed him, together with the use of the furniture then in his possession belonging to the united states. this furniture cost the united states , dollars, cents. during the period from , when the household was first established until , when the president of the united states entered upon his office, the furniture which had been purchased for the president by congress, was so much decayed, that it required nearly , dollars to replenish it. it was the opinion of the joint committee, therefore, that in a lapse of eight years, viz: from to the present time, the furniture then purchased must have experienced equal dilapidation and decay, and that a sum at least as large as was then allowed (particularly when it was considered that the price of goods was very much advanced since that time) should now be allowed for putting the present household upon the same footing of respectability and convenience with that at new york in . mr. s. did not know that he could give any further information on the subject. it was a matter of notoriety that a great part of the goods then purchased were worn out and destroyed; such as the household linen, crockery ware, &c., and that the president had renewed them at his own expense; insomuch that if he were to take out of the house the furniture which he had supplied, there would little remain in it besides tables, chairs, bedsteads, and a few such articles; since all the carpets and ornamental furniture of the house had been purchased by himself. whilst he was up, he would wish to obviate the only objection which had been adduced to this bill. the gentleman from new jersey (mr. henderson) had supposed that this allowance was meant to carry into effect what had been rejected in another way, alluding to the proposed advance of salary. that gentleman might see a very obvious distinction between the two things. if $ , had been added to the salary of the president, he could have disposed of it as he pleased; but the money now proposed to be granted, was to be employed in the purchase of furniture, &c., which would remain the property of the united states, and would devolve upon the next president. mr. s. said, he would add, that in the joint committee there was not a dissenting voice to the proposition, and he hoped there would not be one in the house. the question was put for engrossing the bill for a third reading, and carried, there being fifty votes in favor of it. this day and monday were mentioned for the third reading; the question was carried for the most distant day, to . monday, february . _accommodation of the president._ the bill to accommodate the president was read the third time; when mr. heath moved to have the bill recommitted, for the purpose of striking out $ , to insert $ , . he thought $ , too large a sum to be given to purchase new furniture; $ , he thought would be a sufficiently handsome sum for the purpose. they were apt to be too lavish with the public money on some occasions, and too sparing on others. he had not been satisfied with the reasons which had been given by the chairman of the committee for giving the sum now in the bill. at a time when our treasury was so much in want of money, he did not wish so large a sum to be given for this purpose; nor did he think it necessary, except it were to put our president in the style of a potentate or prince. and this he was sure the president of the united states would not wish, as he believed he was a gentleman of great economy, and would spurn at any thing like tinsel or expense. five thousand dollars had been thought a sufficient sum for this purpose, but he was willing to give $ , . he hoped the bill would therefore be recommitted, and this sum be inserted. mr. macon seconded the motion for recommitting the bill. he was against it altogether. he did not see why they should furnish the house of the president any more than that of any other of their officers. he thought the thing improper at first, and that it was wrong to continue the practice. if the salary was not large enough, it should be made larger, though he thought it sufficiently large. mr. rutherford concurred with his colleague, mr. heath. it was necessary, he said, that republicans should be consistent. if we thus give away the people's money, said he, shall we not be charged with rapaciously putting our hands into their pockets? have we not, he added, refused to redress grievances and injuries, and to do justice to many deserving and distressed citizens, because our treasury is low? and shall we now, when there is no right reason for it, lay hold of the public treasury, and lavish away $ , ? for what? for adding new furniture to the house of the president. no; he was willing to render him all possible respect; he remembered well his letter to our sister republic of holland. he had a pretty good memory. he remembered well his patriotism; but he saw no reason to give him $ , . he would give him $ , , which he thought would be a very pretty compliment; but to give $ , would outrage every idea of that economy and republican simplicity which ought to characterize the american nation. why, said he, shall we, who are a confederacy of the democratic republicans, everlastingly keep our eyes upon the pageantry of eastern courts? let us rather attend to our own character than that of any despotic nation upon earth. he hoped the bill would be recommitted. the question for recommitting was carried-- to . the house accordingly resolved itself into a committee of the whole on the bill, when-- mr. heath moved to strike out $ , and insert $ , . mr. gillespie called for the estimate, which he understood was in possession of the committee. mr. sitgreaves said there was no estimate before the house or committee. all that he had seen was a list of the furniture which had been purchased for the president in . he himself had not had patience to go through it; but if the gentleman wished it, it might be read to the house. mr. hartley hoped there would have been no objection to this appropriation. he thought the chairman of the committee had fully shown the propriety of granting the $ , to the president, who was not merely an officer of the government, but a branch of it. it was not giving the money away, but merely advancing it on account of the united states. he was not in favor of high salaries, but he wished the situation of the president to be made comfortable and respectable. mr. heath said, he believed a great part of the furniture which was purchased in , was at present as good as when laid in; this was particularly the case with respect to the mahogany furniture; and he thought the $ , would be a sufficient sum to replace all articles of a perishable nature, such as carpets, linens, &c. mr. holland was in favor of striking out, because it was only necessary to appropriate as much as might be necessary whilst government remained here, as, when it should be removed, the furniture now used might not be suitable for the house at washington. at that time, he supposed a further sum would be called for, and therefore he thought a less sum than $ , would be sufficient for the present purpose. mr. williams was in favor of the bill as it stood. he had been told that it was the intention of the state of pennsylvania to make an offer to the president of the house which had lately been erected in this city; if so, perhaps the furniture which might be purchased for it would be suitable for the house in the federal city. he had before said that he thought it would have been better to have augmented the salary of the president, and let him purchase his own furniture. but as that had not been agreed to, he wished the committee now to rise and report progress, that information might be gained on the subject; because he thought if he was to have that house, that sum would not be too large. mr. sitgreaves said, he did not know whether the legislature of this state would conclude to make the president the offer which the gentleman last up had mentioned; but of this he was sure, that if they did, he could not afford to accept of it. for, if this bill passed, he was certain that, under such circumstances, he could not remove into that house, because he would not be able to furnish it. mr. s. said, he was surprised the house should so suddenly change their opinion. he thought he had given sufficient information on the subject to have shown the necessity of the grant. [mr. s. here repeated what he had before noticed respecting what had been allowed on a former occasion.] when gentlemen entered minutely into the subject, they seemed to have information which was not very correct. he believed the sum mentioned in the bill not more than sufficient. the decay which had taken place in the president's household would require that sum to make it good. the gentleman from virginia supposed there were many articles, not perishable in their nature, which could not have been injured by their use. he was mistaken. there was nothing but about $ worth of plated ware and the mahogany furniture which could at all come under this description. indeed, any gentleman who was in the habit of paying his respects to the president of the united states must have seen with regret that the appearance of his furniture was so far inferior to that which was to be found in the houses of any of our wealthy citizens, or even of those in moderate circumstances. when this was a notorious fact, what ground, he asked, could gentlemen have for comparing the household of the president to the pomp and splendor of eastern courts? on the contrary, he thought there was a humility of appearance in the house of the president, which he would not say was a disgrace to the country, but which at least proved its rigid economy. mr. nicholas said he voted for going into committee of the whole on this subject from an idea that the sum proposed to be given to the president was larger than was necessary, though he confessed he could not say what that sum ought exactly to be; he was for giving enough and rather too much than too little. indeed, when he considered that the whole sum was not to be expended, except it should be found necessary, and that a certain style was expected to be observed in this station, he was not for stinting the sum to what he thought just enough for purchasing furniture. if the whole of the money granted must of necessity be expended in furniture, he should have had more hesitation on the subject; but as the expenditure would be left to the discretion of the president, he could not suppose, from the well-known habits of economy of that gentleman, it would be improperly disposed of. he therefore felt no difficulty in agreeing to the sum in the bill; for though he thought the sum too large, yet he would not so confine the appropriation as to oblige their officer to go about the streets to look out for cheap purchases of furniture. mr. buck said, previous to these measures being brought forward, they had decided against any advance to the salary of the president. all that time a committee was appointed to inquire into the state of the president's household, and to report whether any, and what, further accommodation was necessary to be afforded. he conceived that it was the wish of that house that the gentleman who was coming into office should have accommodations equal to those which had been given to the gentleman who was leaving it. the committee had examined into facts, made a report, and a bill had been brought in accordingly. the committee had informed them upon what principles they had acted; and it did not appear that they either intended to increase the splendor of the household of the president, nor to add to his salary. if any member could come forward and show that the report of the committee was erroneous, they should have some ground upon which to reject it. he had heard no man say this, and therefore all that had been offered on the subject ought not to weigh against that report. when the bill was before them on saturday, there was a considerable majority in favor of it, and as they had no new information on the matter, he saw no reason for a change of opinion. some members, mr. b. said, had held out an idea that they were about to give this money away, to enable the new president to live in the style of foreign courts. if the inhabitants of this city had adopted this style, then it would be chargeable against the president, but not otherwise, since it was acknowledged he had not kept pace with them in this respect. the appropriating this money would only be converting it into so much public property; for, when his term of office should expire, he could not carry away a single article. it was not, therefore, giving away a farthing, but merely providing for our own convenience to enable the president to fill the office with comfort and reputation; and as they had nothing before them to show the sum too large, he saw no propriety in rejecting it, for the purpose of inserting any other. mr. rutherford said, if the house had committed an error one day, it would be well for them to correct it another. if they were to give $ , away on the present occasion, he thought they would commit a very serious error. the gentleman from pennsylvania (mr. sitgreaves) had said many of the citizens of philadelphia lived in a superior style to the president. if so, he would say they were very bad citizens, since it was proper that the citizens of this rising republic should cultivate a simplicity of living and of manners. mr. macon thought some of the arguments introduced on this occasion were very improper; such as the habits of economy or private fortune of the gentleman who was to succeed to the presidential chair. they were about to settle a permanent principle, which it was proper to do at this time, before a new presidency commenced. he knew nothing of the private property of the person who was to fill the office, nor had it any thing to do with the matter. the question was, whether they were to go over the same ground every four or eight years of furnishing the house of a new president? he did not wish that it should be so; he wished the salary to be the only consideration which the president should receive for his services. if it had not been settling a permanent principle, he should not perhaps have opposed it. it had been said that the old president of congress had a household furnished him, but he received no salary from the united states except his household. he considered this sum as an advance upon the salary paid to the president by the different states, and before any salary was fixed by the united states; but now, as an ample salary was paid to the president, he did not think such a provision should be continued. it was sometimes said that it was no matter what sum was appropriated, as, if it was not wanted, it would not be expended; but, he believed, whatever sum was appropriated would be expended; for he was not one of those who thought that revenue could not be found. he believed if the money was granted, it would be both found and spent. mr. sitgreaves wished to correct the gentleman last up with respect to one fact. he had said the president of the old congress had no salary. it was true that he did not receive any thing under that name, but there was a provision, not merely for the furniture of his house, but for the constant provision of it; and this was so considerable that from to , in one year, eighty-three thousand dollars were paid for that purpose. mr. macon wished to know what sort of money this was; he supposed it was in depreciated paper. mr. sitgreaves was not certain what kind of money was meant. mr. jeremiah smith said, in settling an affair of this kind, it was proper to have respect to the office, and not to the man who was to fill it. he could himself consider the establishment of the president's household in no other light than in the nature of a compensation for his services, in the same way that he considered the privilege of franking, stationery, and newspapers, allowed the members of both houses, to be such; because, if they were not allowed to them, they would have to purchase those articles themselves; and if furniture was not provided by government for the house of the president, he must himself furnish it out of his salary, or from his private purse. to refuse to provide the necessary furniture would therefore be to reduce his salary; for it was true that this plan of presenting furniture to the president was adopted before the salary was fixed, so that it must have been considered as being additional to the salary. and was that salary, he asked, near so valuable now as it was when fixed? certainly not. he trusted, therefore, they should not reduce it. this sum, mr. s. said, was mentioned, from a consideration that four years hence the seat of government would be removed, and that then the furniture would be in a great degree useless. they, therefore, only recommended such a sum as they thought would be sufficient to put the furniture in a proper state for that term. he believed that fourteen thousand dollars would not do more than that. mr. macon said he was always opposed to the privileges allowed to members of franking, &c. gentlemen talked about a statement; he did not know what that might contain, he had not seen it; but he did not know how it could require fourteen thousand dollars to repair furniture which at first cost only thirteen thousand. mr. jeremiah smith said, the gentleman last up was inaccurate in his statement. the thirteen thousand dollars which were allowed for furniture for the late president, was in addition to the furniture which had already been in possession of the president of congress. mr. sherburne said, the question was with respect to the quantum of money to be granted, as every one seemed to allow that a certain sum was necessary. by having recourse to what was done for other officers of the government, they might, perhaps, form an estimate of what would be reasonable on the present occasion. a practice had been established of allowing our ministers to foreign countries a sum as an outfit equal to one year's salary; so that nine thousand dollars were allowed a minister for this purpose, though it might happen that he would not be employed more than a few months in the service. he thought, therefore, that fourteen thousand dollars could not be thought too large a sum for the president of the united states, whose term of service was for four years, and which would go to his successor in office; whereas, the nine thousand dollars allowed to a foreign minister were entirely at his disposal, though he might not be in the service more than a month. mr. ames said, it appeared to him that it would be desirable to proceed according to precedent, as nearly as they could. it was not desirable to innovate or change the established order of things, except strong reasons existed for the change. on inquiring what had been the practice heretofore, they found the president of the old congress, as well as the president now going out of office, had establishments made for their household similar to that now proposed. if they looked forward to that period when the seat of government was to be removed, and considered the furniture which would be necessary for the house in the federal city, it would be seen that there would be a necessity for a new establishment at that time, as it was evident that the present furniture or what might be purchased with the sum now contemplated, would be wholly inadequate to the furnishing of that house. he supposed an additional grant of twelve or fifteen thousand pounds would be necessary for that purpose. we have chosen an elective government, said mr. a., and if it were meant to be kept pure, they must encourage the people to make choice of such men, without respect to fortune, as they think will serve them best, but if instead of providing a suitable household for the president, they left him to provide for himself in this respect, men of large fortune only could engage in this part of the public service. and would this, he asked, be doing honor to the republican government? he thought not. the question for striking out was put and negatived-- to . the committee then rose, and when the question was about to be put in the house-- mr. gallatin said, the provision of the bill left it to the discretion of the president whether he would expend the whole of the money, or not. his opinion was, that the sum was too large; but the question for striking it out having been negatived, the expenditure must be left to the discretion of the president. he did not mean to go into any detail. he did not wish to place the gentleman coming into office in a worse situation than that of him who was going out; and as he felt no objection to leave it to the president to make use of the whole or a part of this money, as his discretion should direct, he should vote for the bill. mr. claiborne said, as provision had been made for furniture for the gentleman now in office, he was inclined to vote for the fourteen thousand dollars proposed now to be granted for the same purpose to the gentleman who was to succeed him. mr. henderson wished to give his reasons for voting against this bill. he wished to place the president coming into office in as comfortable circumstances as he who was going out; but it appeared to him that the sum proposed was larger than necessary for this purpose. indeed, said mr. h., when he read an article of the constitution touching this subject, he had his doubts with respect to the constitutionality of the proceeding. that article said, "that the president should receive a compensation which should neither be increased nor diminished during the period for which he should have been elected; and that he should not receive within that period any other emoluments from the united states, or any of them." mr. sitgreaves believed there could be no doubt as to the constitutionality of the proposed grant of money, as the clause ran, "during the period for which he should have been elected," which would not prevent them from passing any number of acts before he went into office. the question on the passing of the bill was then taken by yeas and nays, and stood to , as follows: yeas.--fisher ames, theodorus bailey, abraham baldwin, theophilus bradbury, daniel buck, dempsey burges, thomas claiborne, joshua coit, william cooper, william craik, samuel w. dana, james davenport, george dent, george ege, abiel foster, dwight foster, nathaniel freeman, junior, albert gallatin, ezekiel gilbert, nicholas gilman, henry glenn, chauncey goodrich, roger griswold, william b. grove, robert goodloe harper, carter b. harrison, thomas hartley, william hindman, john wilkes kittera, george leonard, edward livingston, samuel lyman, william lyman, james madison, francis malbone, andrew moore, frederick a. muhlenberg, william vans murray, john nicholas, john page, josiah parker, john patton, elisha r. potter, john read, john richards, samuel sewall, john s. sherburne, samuel sitgreaves, thompson j. skinner, jeremiah smith, nathaniel smith, isaac smith, israel smith, william smith, richard sprigg, junior, thomas sprigg, john swanwick, zephaniah swift, george thatcher, john e. van allen, philip van cortlandt, peleg wadsworth, and john williams, nays.--thomas blount, nathan bryan, samuel j. cabell, gabriel christie, john clopton, isaac coles, jesse franklin, james gillespie, christopher greenup, andrew gregg, wade hampton, john hathorn, jonathan n. havens, john heath, thomas henderson, james holland, andrew jackson, george jackson, aaron kitchell, matthew locke, nathaniel macon, john milledge, anthony new, alexander d. orr, robert rutherford, william stradwick, and richard winn. _military and naval appropriations._ the house went into a committee of the whole on this subject, when, after some discussion respecting the price of rations, mr. gallatin insisting upon seventeen cents being a sufficiently high calculation, and mr. w. smith abiding by the estimate of the war department at twenty cents; the latter was agreed upon thirty-six to thirty-four, and the pay and subsistence of the army was settled, but which has since undergone an alteration, owing to the two companies of cavalry being added by a new bill. the sum for forage and clothing was also agreed upon, but which afterwards, of course, from the above alteration, underwent an augmentation. the hospital department being under consideration, mr. w. smith moved to fill the blank with thirty thousand dollars. mr. gallatin moved to fill it with ten thousand. he said, they had this year had a statement of the expense of the military establishment, by which they found that the hospital department had cost six thousand nine hundred and five dollars. it had been the uniform practice of the house to appropriate from thirty to forty thousand dollars under this head, though the expense had never exceeded seven thousand; and to apply the surplus to other purposes. he thought it wrong to appropriate four times the sum necessary, and had therefore proposed to fill the blank with ten thousand dollars, which was fifty per cent. more than had ever been expended for the purpose. mr. parker believed than ten thousand dollars would be enough to pay for physic for the army. indeed he believed it was generally expended in wine and luxuries by the officers, and that little of it went to the use of the subordinates. the question for ten thousand dollars was put and carried. the blank for the ordnance department was filled with forty thousand dollars; and that for the fortifications of the ports and harbors of the united states with twenty-four thousand dollars. mr. gallatin moved to fill the blank for the quartermaster's department, the indian department, the defensive protection of the frontiers, bounties, and all the contingent expenses of the war department, with three hundred thousand dollars. mr. venable said, if the sum necessary for each of the above items could be specified, he would rather have it so expressed than have the whole in one sum. mr. w. smith said it would come to the same thing, if the several items were voted in an aggregate sum, as they were all contingent expenses. he should move to have the blank filled with four hundred and forty-six thousand dollars. mr. gallatin observed there were two motions before the committee: one to fill the blank with four hundred and forty-six thousand dollars, the other with three hundred thousand. he would observe that one of the items in this estimate, viz., that for the fortifications of west point, ought not to be included under this head; but, as to the other items, he would mention, in answer to what had fallen from the gentleman from virginia (mr. venable) what was the reason which had induced the committee to put them in one sum, which was to obtain the very object he had in view in wishing to have all the items stated separately. it would be recollected that they had had a letter from the secretary of the treasury, in which he said, "that the appropriations for the military and naval establishments were considered as general grants of money; and, though they were to be accounted for according to law, yet it was the practice of the officers of the treasury not to consider each appropriation as specific, but the whole as a general grant of money." this practice was making the law a mere farce, since the officers of the treasury did not consider themselves as at all bound by the specific sums. he therefore concluded it to be proper to pass the law in such a manner as to confine the expense to the appropriation for the different items. it was said to be impossible to carry the law into execution on this principle. it was said there were a number of contingent expenses which could not be exactly ascertained, and that therefore it was necessary the officers of the treasury should have a certain discretion given them to make use of the surplus of any item for which more than was necessary had been appropriated. he believed the uncertainty here mentioned existed, and therefore it had been concluded to be best to put the contingent articles together in one sum, in order to give bounds to the discretion of the department. having given the reasons which caused the bill to be brought in in this shape, mr. g. said he would mention the items upon which the sum he had proposed to fill up the blank was composed. for defensive protection, sixty thousand dollars; for the quartermaster's department, one hundred and fifty thousand dollars. this latter sum has been estimated at two hundred and fifty thousand dollars, but upon what ground he was at a loss to know. the army would now be fixed in garrison, and would not have to march from post to post. none of the reasons given last year for this expense would now apply; and he thought it unreasonable that the same sum should be allowed for this item which was allowed at the time when they were engaged in an indian war. in , when we had eight hundred men in garrison, the expenses of this department was $ , in , he did not recollect the number of troops, but not more, he believed , in , in (in the height of the indian war) , in , in , in , what would be the expense of , could not be exactly ascertained. it appeared by the statement which they had received that upwards of two hundred and four thousand dollars had been expended. whether there were any further demands unsettled, he could not tell. it appeared, therefore, that the expense of that department had increased from eleven thousand to three hundred thousand dollars. this had been owing to two causes--the increase of the army, and by the indian war. there had also been a great loss of horses from having forage to fetch great distances. mr. dearborn could see no reason for making the appropriation so large as had been proposed by the gentleman from south carolina. it must be recollected that the army was in garrison, where there were barrack-houses convenient for the officers and men, and contracts had been entered into for delivering provisions at the different forts, and there would therefore be a great deduction on account of the transportation, in which seven or eight hundred horses had been used up, and the horses on hand might also be sold. camp equipage was a heavy article of expense, but which would not be wanted whilst the troops were in garrison. these two articles would of themselves make a very considerable part of the whole item. there would also be a saving in the purchase of horses, as the cavalry made more than half the expense. he did not think more than one hundred thousand dollars could be wanted under this head, except it were wanted for making new forts or fortifications. there would now be no necessity for building officers' houses, and huts for the soldiers for winter quarters. all these circumstances considered, he thought the sum he had mentioned would be sufficient. the question for filling the blank with four hundred and forty-six thousand was put and negatived, there being only thirteen votes in favor of it. the sense of the committee was then taken upon three hundred thousand, and carried--there being votes in favor of it. mr. w. smith then moved to add to the bill, "for the repairs of the fortifications of west point, twenty thousand dollars." mr. coit inquired if there was any estimate of this item. mr. gallatin said there was no estimate respecting west point. mr. w. smith said there was an estimate for niagara, oswego, detroit, &c., which might include west point, he proposed therefore to change the motion, and insert "niagara, oswego, detroit, &c.," which would include west point, if necessary. mr. gallatin wished the gentleman from south carolina to say whether he had any information with respect to west point. mr. w. smith said, he had no particular information on the subject, but as it was of importance the works there should be very complete, he thought it prudent to grant something for that object. mr. gallatin hoped the proposition would be rejected. there was no necessity for repairing the fortifications of the posts mentioned more than any other of the forts upon the lakes. they knew nothing of them, but that they were too large for the garrisons in them; but he believed if they once begun to appropriate money for this purpose, it would become a yearly expense, and whilst they had been parsimonious with respect to the ports and harbors of the united states, having only appropriated twenty-four thousand dollars to that purpose, he could see no reason for granting twenty thousand dollars for repairing the forts of niagara, oswego, and detroit, against a few indians; as it was well known that a block-house was as good a fortification against the indians as any other. when the regiment was raised to go and take possession of that country, they built all their forts as they went along, without any expense, except the price of a few tools. he hoped, therefore, they should not by voting for this sum, introduce a new item of expense into their annual appropriations. mr. w. smith agreed with the gentleman last up, that enough had not been appropriated for the defence of the ports and harbors of the united states; but if they had done wrong in one instance, it was no rule why they should continue to do so. he thought it very important that the forts he had mentioned should be so secured at least as that they should not go to ruin. under this item was included west point, which was a fort of great consequence; and he would rather forty thousand dollars were appropriated than twenty thousand for this purpose. mr. dearborn said, as far as the proposition related to niagara, oswego, and detroit, he thought it improper to appropriate money for their defence. he believed it would require a year or two to know what was necessary to be done there. at niagara, the works were large enough for six or seven thousand men, and it would become a question whether they should be reduced, or kept up as they were; at oswego, nothing more could be necessary than a block-house. it was true, there were considerable works there, but until it was decided what they should do with them, it would be improper to appropriate money for their repair. the same thing might be said of detroit. he had no idea that the president could have information from those places of what was necessary. whatever temporary repair might be required there, the troops themselves would be able to effect. as to west point, he did not know any thing about it, except that it was a place of consequence; he also knew that a great deal of money had been laid out upon it. he hoped they should get into a new system with respect to the defence of our ports and harbors; and until that was done, he should be against granting any considerable sum for this purpose. if gentlemen were in possession of any information on the subject, he perhaps might be induced to vote for a small sum: but not until he knew more of the matter. mr. livingston spoke of the importance of the fort at west point, and of the necessity of keeping it in proper repair. mr. coit said, the question seemed to have taken a new turn. he presumed that west point was not in the idea of the secretary of war when he made the estimate upon which this bill was founded. if it had been, it would have been very improper to have begun with oswego, and include west point in the _et cetera_. in june, , , dollars, he said, were appropriated for the repairs of this fort, and they had not been informed that it had been expended. mr. gallatin said, there had been , dollars expended at west point; the other , dollars were not intended for that fort. the present appropriation was doubtless intended for the forts mentioned, and those in the same quarter. if any thing was wanted for west point, a distinct proposition should come before them for that purpose. mr. w. smith observed that the gentleman last up had stated that only , dollars had been expended at west point; that was only the amount which had been expended at the time the estimate was made; but the whole might have been since laid out, as then only , dollars of the appropriation of the military establishment had been expended. mr. gallatin said, that the total expenditure of the estimate alluded to was , , dollars. the question was put and negatived, there being only votes in favor of it. the committee then rose and had leave to sit again. tuesday, february . _algerine captives: ransom._ the secretary of state, to whom was referred the petitions of george smith and john robertson, who prayed for a repayment of the money which they had themselves paid for their ransom from algerine slavery, reported that the ransom of george smith cost $ , , of which colonel humphreys had paid $ , , and george smith the remainder; that by the late return of our citizens from algiers, the expense attending the redemption of each man was ascertained to be $ , , independent of the expense of the general negotiation, and allowing for small inaccuracies on account of some expenses which could not at present be ascertained. he recommends, therefore, that george smith have paid him $ , which, with the sum paid by colonel humphreys, would make about $ , . john robinson paid for his own ransom $ , , the interest upon which came to $ ; the secretary therefore recommends that $ , be paid to him. on motion of mr. swanwick, this report was referred to a select committee, viz: messrs. swanwick, blount, coit, sewall, and parker. _general appropriation bill._ the amendments from the senate to the bill making appropriations for the support of government for the year , were taken up and agreed to, as also those to the bill laying additional duties on sundry articles of impost. the amendments which were agreed to were to add to white cotton goods, "velvets and velverets, whether printed, stained, colored, or otherwise, and all muslins and muslinets, two and a half per cent." and also a new section, enacting that an addition of per cent. should be laid upon these articles when imported in ships or vessels not of the united states. the duties are to take place after the st of december next. _military and naval appropriations._ the house again resolved itself into a committee of the whole on the military and naval appropriations; when, the pay and subsistence of three captains in the naval department being under consideration-- mr. swanwick thought it would be necessary to have a laborer or two employed to take care of the vessels and materials. mr. w. smith said, the estimate for the captains was $ , ; if the sum was made $ , , there would be sufficient for the payment of any laborers which might be necessary. agreed to. the blank for the payment of military pensions was agreed to be filled with $ , . and for making good the deficiencies of the military establishment of , $ , . also, for the payment of the expedition of general sevier into the cherokee nation, $ , . the committee now rose, and had leave to sit again. _executive veto on the army bill._ the following message, in writing, was received from the president of the united states, containing his objections to the bill for fixing the military establishment: _gentlemen of the house of representatives_: having maturely considered the bill to alter and amend an act, entitled "an act to ascertain and fix the military establishment of the united states," which was presented to me on the twenty-second day of this month, i now return it to the house of representatives, in which it originated, with my objections. _first._ if the bill passes into a law, the two companies of light dragoons will be, from that moment, _legally_ out of service, though they will continue afterwards _actually_ in the service; and for their services during this interval, namely, from the time of _legal_ to the time of _actual_ discharge, it will not be lawful to pay them, unless some future provision be made by law. though they may be discharged at the pleasure of congress, in justice they ought to receive their pay, not only to the time of passing the law, but at least to the time of their actual discharge. _secondly._ it will be inconvenient and injurious to the public to dismiss the light dragoons as soon as notice of the law can be conveyed to them, one of the companies having been lately destined to a necessary and important service. _thirdly._ the companies of light dragoons consist of one hundred and twenty-six non-commissioned officers and privates, who are bound to serve as dismounted dragoons when ordered so to do. they have received, in bounties, about two thousand dollars; one of them is completely equipped, and above half of the non-commissioned officers and privates have yet to serve more than one-third of the time of their enlistment; and, besides, there will, in the course of the year, be a considerable deficiency in the complement of infantry intended to be continued. under these circumstances, to discharge the dragoons does not seem to comport with economy. _fourthly._ it is generally agreed that some cavalry, either militia or regular, will be necessary; and, according to the best information i have been able to obtain, it is my opinion that the latter will be less expensive and more useful than the former in preserving peace between the frontier settlers and the indians, and, therefore, a part of the military establishment should consist of cavalry. g. washington. united states, _february_ , . on motion, "_resolved_, that to-morrow be assigned for the reconsideration of the said bill, in the mode prescribed by the constitution of the united states." the question to concur was put and carried-- to . wednesday, march . _military establishment._ mr. gallatin wished the bill for fixing the military establishment, which had been returned by the president of the united states, with his objections, to be taken up. mr. w. smith hoped this subject would be taken up, but before it was entered upon, he wished the committee of the whole to be discharged from the consideration of it, as he found, in a former instance of a similar kind, the business had been settled in the house. the committee was accordingly discharged. the house then proceeded to reconsider the bill, agreeably to the direction of the constitution. the bill was first read, and then the objections of the president. the speaker then read the clause in the constitution which directs the proceedings on such an occasion, and which says, that in case two-thirds of the house wherein it originated shall be in favor of passing the bill, it shall be sent to the other, and if two-thirds of that house be also in favor of it, it shall become a law. the votes of both houses to be determined by yeas and nays. mr. nicholas said, he meant to vote against the bill, but he did not wish to stand charged with refusing to pay the men for the time they were in service. he thought this bill was by no means liable to a charge of this kind; as it could scarcely be supposed that, at the time they were making a voluntary gift of $ to every officer discharged, the legislature meant to defraud the men of their pay. mr. w. smith did not see any necessity for the observations of the gentleman from virginia. there was nothing in the message of the president which charged that house with an intention to defraud the men of their pay. whatever was the design of gentlemen, this was not the charge. but certain it was that this would be the result of the bill, and it would be six weeks or two months before they could be notified that the act was passed. it was the legal opinion of the attorney general, therefore, that they would not be entitled to pay during that time. mr. nicholas was sorry that the gentleman from south carolina and he did not think alike on the subject; he thought the objections he had made were necessary, and he had made them for the purpose stated. he thought the president ought not to have doubted their willingness to have allowed the pay in question. he was of opinion the house had given some extraordinary proofs of their liberality this session; amongst other proofs of this, they had determined to appropriate money for the building of a thirty-six gun frigate, which he had caused to be built without authority. but the pay of these men was so much a point of law, that he believed the men would have been entitled to pay. mr. w. smith said, their having agreed to give each of the officers $ , without mentioning the men, rather went against the gentleman's conclusion; because, if any thing had been intended to have been given to them, they would also have been mentioned. mr. williams was sorry that some things had not been more attended to, when that bill was under consideration; and, although there would be a difficulty respecting the brigadier general and staff, yet he thought the objections well founded, and would vote against the passing of the bill, in order that a new one might be brought in to avoid the objections, from the demands lately made for the protection of the frontiers of georgia and tennessee, which amounted to upwards of $ , ; he fully agreed with the president that it would be less expense to keep up the two companies of dragoons than to employ militia horse. the yeas and nays were then taken, and stood to . the bill being accordingly lost, mr. nicholas moved that a committee be appointed to bring in a new bill, which being agreed to, a new bill was reported (exactly the same as the former, except an omission of the parts objected to by the president.) it was ordered to be engrossed for a third reading, and afterwards passed. _case of hanging maw._ mr. blount called for the order of the day on the report of the committee of claims on the petition of the widow of the late scollacuttaw, or hanging maw. the house accordingly went into a committee thereon, when the report was read, as follows: "that the complaints against the conduct of one john beard, and a number of armed men, who, she states, in the year one thousand seven hundred and ninety-three, contrary to law and the good faith of government, attacked the dwelling-house of the petitioner and husband, killed and wounded a number of well-disposed indians; burnt, and destroyed, and carried away their property, and wounded the petitioner. she now prays that some provision may be made for her. "after examining the statement made by the petitioner, and the facts upon which she rests her present application, the committee have found some difficulty in deciding what measures would be most advisable for the house to adopt. "previous to the attack on the hanging maw, the frontier settlers of tennessee and the indians in that quarter had been guilty of mutual acts of aggression and hostility. a party of the indians had killed some settlers; their trail was discovered, conducting across the tennessee--this circumstance induced a belief in their pursuers that the hanging maw had been concerned in that business, and occasioned his being wounded, and the misfortunes complained of by his widow. the general opinion, however, represents the hanging maw as having been uniformly friendly to the settlers; as vigilant to apprise them of the approach of banditti; and constant in his exertions, on all occasions, to compose difficulties between them and his nation; and, withal, as possessing considerable influence over the indians. the same disposition is also attributed to his widow, the present petitioner; who, instead of exciting her people to acts of retaliation, has abated nothing in her friendship to the white people. "all these circumstances seem to countenance, if not to require for her a pension from the government, or some other relief from the legislature. such a provision might also be considered as extending its influence beyond the particular object; or, as an inciting cause to other indians to pursue a similar line of conduct, under circumstances alike cruel and distressing, should they happen. "but, on the other hand, it is to be considered that there are citizens on the frontiers who have suffered injuries as cruel, and deprivations as severe by the indians; and who have been thereby left in situations of distress that would equally call for assistance from the legislature. questions arise whether both descriptions of sufferers ought not to be provided for? whether the abilities of government would be competent to meet all possible claims of this nature? and whether help can be extended by law to the one, and consistently refused to the other? "it may be said that those who settle on the frontiers voluntarily assume all the risks and dangers attached to that position; and, therefore can have no just claim upon the government for consequences resulting from their choice; whilst, on the contrary, policy requires that the minds of the indians, who may be roused to hostility by acts of the settlers, should be quieted by small pecuniary interpositions. "under these views of the subject, the committee have hesitated what report to make; but, upon the whole, as the authority vested in the executive department is competent to meet this claim; and should the petitioner, from her sufferings and her attachment to the united states, appear to the executive to be entitled to any annual relief, as it may be afforded out of the appropriations for contingent expenses in the indian department, without any interference of the legislature, and as this mode will probably involve the fewest difficulties, the committee think she should apply to that department; and that the prayer of her petition ought not to be granted."[ ] the committee reported their agreement with the resolution reported from the committee of claims. the question was taken, that the house do agree with the committee of the whole house in their agreement to the said report, and resolved in the affirmative. thursday, march . the bill for the relief of american seamen was read the third time and passed. _military appropriations._ on the motion of mr. w. smith, the house went into a committee of the whole on the bill making appropriation for the military establishment, when the following items were agreed to without debate: for the payment of the army, $ , for the subsistence of the officers, , for the subsistence of the non-commissioned officers and privates, , for forage, , for clothing, , mr. w. smith then proposed to insert a new item, in consequence of the bill just passed, "for the purchase of horses and the equipment of the cavalry, $ , ." mr. gallatin said, the items which had been agreed to were upon the ground of an increase of dragoons which was not in the former bill. the item now under consideration went to provide horses and equipments for an additional company of cavalry. it appeared that this company was heretofore without either, so that they must have been employed as dismounted dragoons; and if they now appropriated the sum before them, they would, in fact, add a company of horse to the establishment. he believed it to be the general opinion that they had cavalry sufficient at present; indeed, it was the opinion of a large majority of that house that none were necessary; but if they did appropriate for any, he thought they ought not to go beyond the present establishment. mr. w. smith said, if they refused to make the appropriation under consideration, they declared that one of the two companies of cavalry should act as infantry. by the bill passed yesterday, it was left altogether to the option of the president to employ them either as cavalry or infantry: but if this appropriation was withheld, he would be under the necessity of employing them as infantry only, and this house would now exercise a discretion which only yesterday they had vested in the executive. it would be observed, that, in the message of the president, he had fully stated the reasons why dragoons would be requisite. the business upon which one of the companies was at present employed was to escort the commissioners employed in running the boundary lines betwixt the territory of the united states and the indians; the other was indispensable for the protection of the frontiers. what, mr. s. asked, would be the consequence of refusing this appropriation? one of the companies of dragoons would be obliged to act as infantry, and government would be compelled to employ militia-horse at a great expense. if this was economy, he was mistaken in his ideas of economy. the sum was conformable to the estimate which he had received from the war office. mr. hartley was in favor of the appropriation, that the president might be at full liberty to employ the troops on foot or on horse-back, according as the service might require. mr. nicholas thought, while they were making appropriations, this subject might as well be included. if these men were to be kept, they ought to be properly equipped. he said it was the opinion of the president and the secretary of war that cavalry was necessary, and therefore he had concluded it would be proper, and wished them to be kept up, so as to be called into service whenever necessary. mr. milledge thought there was great need of cavalry; it would be an object of policy, as, by information he had received from the governor of georgia, (which he had in his hand, and which was corroborated by a late governor,) horse were absolutely necessary--he thought three companies--on the frontier. he therefore was in favor of the appropriation. mr. varnum had no doubt but the gentleman from georgia, and every gentleman in the house, would be glad to have horse and infantry too kept up in their state: every part would be glad to have the public money expended upon it. he could not see why a body of cavalry should be kept up in a time of peace. he thought the legislature had as good a right to judge as any person, notwithstanding the authorities produced to sanction the appropriation. mr. v. had no doubt, if this was granted, that application would soon be made again for a similar purpose. he hoped this appropriation would not take place; it would be a small saving, and might as well be made, as there was so much want of it. he could have wished the troops reduced to two regiments, which he thought quite sufficient for a peace establishment. he hoped the president's ideas on the subject would not obtain to govern the decisions of the house, as we have the power, said he, to withhold appropriations; and what gentlemen who were locally concerned should say, he could not be guided by; as soldiers would consume their produce and spend money amongst them, consequently they were interested. mr. craik really lamented that the gentleman had not been in the house yesterday, at the time the subject was more under consideration: he might then have inveighed against the president. the observations might have come with more propriety, if they had been made before the bill passed, and when under discussion; but, after a law has passed the proper authorities--after it has been resolved to have these troops of horse--to say, we will not appropriate money to carry it into effect, is strange conduct. if the determination of the gentleman was to oppose the bill, he should have used every means to that purpose, and if not effectual, at least to suffer others to enjoy their will--especially a majority. for the sake of consistency, he hoped the gentleman would withdraw his opposition, and not in this side-way try to defeat the operation of a bill which has passed. the cavalry were voted because they were supposed to be necessary, and now a gentleman comes forward, endeavoring to excite the jealousy of the house on the executive's meddling with the military establishment. mr. c. said he was pleased that the president had refused it, if it was only to convince some gentlemen that he had power to refuse that or any other bill. [here mr. dent asked the gentleman if he was in order.] mr. craik said he only wished to prove the inconsistency of the member's conduct. he thought the house should not betray a want of consistency. he believed, from the statement of the member from georgia, and the reasons of the president, that horse were necessary, and he therefore should wish the appropriation to be passed. mr. kitchell said, gentlemen seemed to be mistaken; they were continually alluding to the law passed yesterday. there was not a word about two troops of horse yesterday. all we then said, was, that we would not say there should not be two troops of horse; the message of the president did not say that two troops should be mounted, nor do i say, said mr. k., that horse are not necessary; i think some are necessary; but the inquiry seemed to be, now, whether the house were to vote for more. mr. w. smith said, the gentleman's observations were very extraordinary; he surely could not have attended to the subject, to say that the house had not passed the law authorizing two troops of horse. we have a law in force, said he, to ascertain and fix the military establishment, in which we authorize the president to employ the two troops of dragoons, to serve either on horse or foot at his discretion. the bill we sent up yesterday does not repeal that law, and yet gentlemen would now come forward to oppose the appropriation, and determine they shall act on foot. he could not think with what propriety the restriction could be made as the gentleman from massachusetts wishes, nor could he think how the gentleman from jersey had attended. should we now say they should be at our direction, and that we would not grant money without? this would be strange conduct--an assumption of power which he hoped the house would never arrogate. mr. kitchell said his meaning was, that the horse were not established yesterday, but before. mr. hartley said it appeared, from good testimony, that the troops were requisite to save the people on the frontiers from the depredations of the indians; he thought, therefore, that they having been established before, the house were bound to make the appropriation to give effect, or show the great inconsistency. mr. nicholas said it was not his intention to vote for these men at all; but if they must have them, perhaps it would be most economical to equip them. with respect to their power of withholding the appropriation, he had no doubt; and though they had yesterday passed a law establishing two companies of cavalry, it was in the power of that house, of the senate, or of the president, to refuse an appropriation. this was the sense of the constitution. when the bill came before the house, he should give his negative to the additional horse; for, if they were always to keep up the same number of men, whether in war or peace, except two-thirds of both houses were found to oppose the will of the president, they might bid adieu to all restraint upon executive power, and count upon a military government, if ever an executive should be found whose will it should be to make it so. if these were to be kept up, he would still say the house had better go to $ , expense to mount them on horse-back. mr. varnum said it was observed by gentlemen that those troops were not mounted; if so, there must have been a very lavish waste of money. however that might be, gentlemen who state this matter ought to state it fairly. they ought not to say that two companies of cavalry were yesterday voted. no, they were part of the old war establishment. it was true, the house had not the power to repeal the law; but one thing was in their power, and that they ought to do, if they see this part of the standing army necessary. the constitution returns the power to act on it once in every two years to each branch of the legislature. the house, he thought, had good right to exercise their own opinion on the necessity of mounting these men. it was not in the power of one branch to repeal the law which keeps these men, but we ought to consider whether they are to be put in the same situation as in time of war. mr. v. said he discharged his duty in voting against this appropriation. the house had a right to judge, and it was not in the power of the president to act for them. mr. heath said that the subject had been fully discussed, and therefore he should only observe, that, from the authority which had recommended the mounting of these cavalry, he should vote for the appropriation. mr. milledge repeated his arguments on the local situation of the country, and asserted the absolute necessity of the troops. the motion was put and carried--there being in favor of it. _naval appropriations._ mr. w. smith then proposed to add $ , for finishing the frigates united states, constitution, and constellation. mr. nicholas said he should be against appropriating so large a sum for this purpose. it was the sense of the house, on a former occasion, that it would be proper to appropriate such a sum as should put them in such a situation as to secure them from injury, but to stop short of making them fit for sea, that the expense of manning them might be avoided. mr. swanwick said a new view of the subject seemed to be brought forward at present. before, they had determined to finish the frigates; but now, they were not to finish them, lest they should be manned, but to finish them in part only. a gentleman yesterday said, when speaking on the subject of the president's message, that he could not suppose they would have refused to pay the soldiers, though there might be some deficiency in the expression of the act; and might he not suppose, said mr. s., if the frigates were so nearly finished, he might go on to finish them, and trust to the legislature to furnish the money? these frigates, he said, were a very extraordinary concern. it seemed as if it was only when it was to be made a present of to algiers, that a frigate could be finished, and not when it was for the protection of our own commerce. he trusted, however, that there would not be a majority found in that house who would vote against finishing the frigates: as to manning them, that would remain for a future consideration. mr. parker said, it would require all the money which had been named for finishing the frigates, without rigging, though there would be a considerable quantity of materials left on hand. there need be no apprehension of their being manned, whilst seamen's wages remained at the price they were, because men could not be got on the terms stipulated in the law for this purpose. if a smaller sum than was mentioned were to be granted, they might as well give nothing. mr. sitgreaves supposed the blank was now proposed to be filled with the same sum which had been agreed upon on a former occasion. if this were the case, it ought to dissipate the fears of the gentleman from virginia, (mr. nicholas,) as it was well known that the sum was predicated upon a supposition that the frigates were not to be manned. if they were to be manned, a further appropriation would certainly be necessary. mr. nicholas said, it appeared to him that if all gentlemen were agreed that this business should go no further than the building of the frigates, they could have no hesitation to leave undone some of the internal finishing work of the vessels; if they did not wish to put them into such a situation as that they might force them into service upon the spur of an alarm, they could have no objection to their being left in such a situation as to be perfectly secure, but not finished fit for sea. mr. sitgreaves said this subject had heretofore undergone a very full discussion. a motion was then made merely to finish the hulls, which was negatived. it was then said that contracts were made for all the materials, and that except the frigates were finished, the engagements which had been entered into could not be fulfilled. but there was another security against the danger apprehended. they had lately come to a determination to make all appropriations specific and particular. what was the language of the present appropriation? it was for finishing the frigates, not for manning them. if it had been said to be for carrying into effect the law for the naval establishment, there might have been some little ground for apprehension; but, as it now stood, the executive could not proceed to man the vessels. mr. nicholas said, when they voted the sum now asked for finishing the frigates, the expenditure was accompanied by a law to repeal the manning clause of the former act. he had made inquiries respecting contracts, and found the money in hand was equal to the fulfilment of them; if there had been any others, he supposed they should have heard of them. he again said there were many ornamental parts of the vessels which might be as well thrown upon the expense of next year as of this. mr. swanwick said, if government could have had foresight sufficient to have known that there would have been any objections made to the finishing of the frigates, they would certainly not have entered into any contracts to that extent, but they could not possibly do this. he wished, if gentlemen were determined the frigates should not be made use of, that they would say at once they should be sold on the stocks. with respect to manning of them from the money proposed to be appropriated, that was impossible, and he saw no reason for making the business _doubly sure_ by any other precaution. mr. holland said it was, with great propriety, intended by many members in the house to keep the frigates in such a state as to prevent their being manned. if we appropriate to finish them, said he, we shall be exposed to all the difficulties depicted by the gentleman from pennsylvania; for some way would be devised to procure and pay men, if the house put it in the power of the executive to do it: therefore he hoped, to avoid all that trouble and expense, they would not vote to finish them. for what purpose, said he, should they be finished, unless it were intended to man them? to avoid every danger of that kind, he should vote against the sum proposed. mr. hartley said, that last year the six frigates which had been before voted for were reduced to three, with intent to complete them. was it not probable then, he would ask, that the president would proceed to complete those frigates, according to the power given him? was it not to be supposed that contracts were entered into for that purpose? no person could suppose but contracts were made. then certainly the house ought not to expose the executive to the ridiculous situation of receding from his contracts! they would not be finished before next session, and therefore no danger of equipping could be apprehended. it may be necessary to use them, but at any rate it would be running no risk to have them finished, as they could not be manned by this appropriation. mr. gallatin said, there seemed to be involved in the present consideration the question whether or not we should have a navy. as to himself, he should vote against the present appropriation, because if the frigates were completely finished, he should fear they would get to sea. when they had on a former occasion consented to finish them, it was under the condition of the law for manning being repealed; but they now stood upon new ground. mr. g. said he had been charged with inconsistency of opinion, from having before said that he thought the president would not be authorized to proceed in the manning of the vessels under the present law, whilst he was now apprehensive that he might do so. he wished to be on sure ground. he did not know but the president might put a different construction upon the law from him. indeed, from the experience they had had of presidential discretion, they need not be surprised if the vessels were sent to sea, though no appropriation was made for the purpose, should the president suppose there was any plea for doing so. as a proof of this power having been exercised heretofore, mr. g. referred to the western insurrection. in that case, he said, no appropriation was made for the expense; but the law authorizes the president to call out the militia when he shall see occasion to do so; he called them out, and got money from the treasury. indeed, the building of a frigate for algiers, without any authority, and the pledging of the faith of the nation to pay the expense of the law-suits of our citizens in london, were strong proofs of what the executive could do. mr. g. said he did not mean to bring into view any arguments relative to the propriety of establishing a navy in this country. he should vote against the present motion, because he did not wish to see the frigates at sea, and because he conceived a navy to be prejudicial to the true interests of this country. something had been said about contracts, but he did not believe any existed. they had last year been told the same thing. any person reading the statements which had been furnished to them, would perceive that the business was not done by any contract, but that men were employed by government, and regular wages paid to them. the frigate which had been built for algiers had been built by contract, they had an estimate of it at so much a ton, but this was not the case with respect to any other of the frigates. mr. w. smith did not wish to go into a long debate on the subject, when they had so much business before them, in order to show whether it was proper for this country to have a navy or not; the only question now was, whether they ought to appropriate money for finishing the three frigates. if they did not do it, all the money which had been already expended would probably be lost. the only objection to the doing of this seemed to arise from a fear that the vessels would be manned, though when this subject was before them, the other day, the gentleman from pennsylvania (mr. gallatin) moved to postpone the bill relative to the repealing or suspending the law for manning the vessels till next session, from an opinion that, by the present law, the president was not authorized to man them. that gentleman seemed now, however, in contradiction to himself, to fear the president would put a different construction upon the law: if he did not believe the president would violate the law, he could not account for his refusing now to vote the money which was merely necessary to finish the vessels. mr. s. read an extract from the report of the secretary of war, to show the forward state in which the vessels were, and added, that they were bound in duty to finish them, were it only to prevent the loss of the money already expended upon them. mr. dearborn observed, that if he was convinced, from the documents which had been laid before them, that the sum now asked for was necessary merely to finish the frigates, he should not hesitate to vote for it; but it was not a little extraordinary that the gentlemen on that committee (not even the chairman, who seemed to have the business so much at heart) could not say whether this sum was necessary for finishing and rigging, or finishing without rigging, or for finishing, rigging, and manning. the frigate building in this city, the captain had told him, was calculated in point of size to carry guns, instead of ; which was one of the reasons they had cost so much more than they had been estimated at. mr. d. said, he suspected that the sum proposed would not only be sufficient to finish the hulls, but to rig and fit the vessels for sea, and until he had more satisfaction on the subject he could not consent to give his vote for it. mr. kittera observed, that gentlemen first said, that under the present law, the president could not proceed to man and send the vessels to sea, but now they were apprehensive this might be done, though no appropriation was made for the purpose. this, he thought, somewhat inconsistent; but he believed whilst thirty dollars a month was given to seamen by merchants, and their law only authorized eleven to be given, there was not much to be feared on this head. mr. ames said, that gentlemen opposed to the finishing of the frigates, seemed to be also opposed to all ideas of this country ever becoming a naval power; the necessity of this, he was persuaded, would ere long appear. it was not to be supposed that a nation whose commerce was greater than that of any other, except great britain, should go on long without a naval protection; and he believed the more strenuous the opposition shown against this measure, the sooner it would be accomplished; he was not therefore displeased to see the present violent opposition to every thing which looked towards this object. it was not enough, mr. a. said, for gentlemen to discourage the building of ships, they would also discredit the administration of government; and nothing was more natural than that those who thought so ill of it themselves should endeavor to spread those opinions. this was done continually. with respect to the building of the frigates, he thought it was a wise step; and as to the extra expense and delay which had attended the business, he believed, gentlemen might take a share of the blame upon themselves, on account of the versatility which had been shown upon the occasion in this day agreeing upon one thing, and that upon another. it was true, that another cause of extra expense was owing to a resolution which had been taken to make the ships much larger than was contemplated by the house; the vessel building here, he believed, was nearly , tons. he was glad that this alteration of plan had been adopted; not because more money would be expended on this account; not because contrary to the direction of the legislature, but because true wisdom required it; they would now be an overmatch for any frigate, or any vessel which the algerines could send out against them. these, he believed, were the views of the executive in having them built of the size they were. the number of the frigates agreed to be finished had been reduced to three; and these they last session passed a law to finish. but what was now to be done? it was said they should not be finished. who said this? did the people? did the government say it? no; that house alone said it: so that that house were about to usurp the supreme authority. we are the government, we are the people, we are every thing. but, if there be a law which says that these three frigates should be built and equipped for sea, was it not necessary, before it was concluded that they should not be so built and equipped, that this law should be repealed by all the branches of the legislature? no, say gentlemen, we can appropriate or not, according to our sovereign will and pleasure. if they possessed the power to nullify what was enacted by all the three branches of government, it was greatly to be lamented. but if they could appropriate according to their will, they were bound to do it also according to their consciences too. it was not only a weapon, but a shield, which it was their duty to use with great caution, and according to law; for, if they were to use it contrarily, it would be to make that house the supreme power, it would be to usurp the supreme authority. mr. coit believed the only real question before them was, what sum they would appropriate for this object; he wished the mover would consent to leave the item blank. mr. w. smith had no objection to its being left blank. mr. venable said, if this was a mere question of expense, it was very extraordinary that it should have called forth such a philippic from the gentleman from massachusetts, (mr. ames,) who had charged the house with arrogating to itself all the powers of government; as being omnipotent. upon what ground could he found such charges? if it were a question of expense merely, there could certainly be no ground for such charges; but if it were to be considered as a question of power, if they were to be told they dared not to withhold the appropriation in question, here he would intrench himself as a representative of the people; he had a right, as a member of that house, to vote against the expense which he thought improper, and he would exercise that right. every branch of government had the same right, and he wished them to exercise it. and he would not be told, when he was about to exercise this right, that he was arrogating to himself all the powers of government. he was determined to exercise his discretion on every question which came before him for decision, and he would vote against this expense. mr. nicholas said, the gentleman from massachusetts (mr. ames) seldom spoke without casting some denunciation against that house. he had, however, allowed that the president had done, with respect to this fleet, all that any gentleman had charged him with doing; he had even put the case stronger than any other person had put it; for he had said that the executive had determined to build the vessels of a larger size than had been contemplated by the legislature, in order to be an overmatch for any other frigate. all this, said mr. n., may be right, and the approbation he gave this conduct, was a proof the gentleman thought so; all he had to say was, that it was not legal; it might be patriotic, and be done with an intention to serve the country; the president might understand the interests of the country better than they; but it was a conduct which would not meet with the same approbation from him that it met with from the gentleman from massachusetts. that gentleman had also said that a law imposed a duty upon the house to find the means for carrying it into effect. were they not, then, to be called upon for money to man the frigates? he asked those gentlemen whether the president had not a right to man the frigates, and if so, whether they should not be _obliged_ to find the money? the powers of this house to control appropriations, had, however, already been settled. it was, indeed, an absurdity to call a body a legislature, and at the same time deny them a control over the public purse; if this were not so, where would be the use of going through the forms of that house with a money bill? the executive might as well draw upon the treasury at once for whatever sums he might stand in need of. a doctrine like this would be scouted even in despotic countries. and what was all this power that so much alarmed the gentleman from massachusetts? it was merely a negative power to refuse to do what they thought it would be mischievous to do. mr. n. said there was a very fashionable doctrine of throwing all power into the hands of the executive. if there were to be extremes, however, he believed an excess of power would at least be as safe in their hands as in those of the executive; and if this were his opinion, and the ground upon which he acted, the gentleman from massachusetts never failed to take an opposite direction. he never thought any executive power too great. mr. parker remarked, that it had been said the frigates would carry guns; it might have been possible to have made them so, but they were no more than a large sized -gun frigate. they might be a little larger than any other of that number of guns, but not so much. it was true they were not at first contemplated to be so large, but strong reasons were offered for making them of the present size; the expense was not increased by the increase of size, in proportion to their usefulness. he therefore himself approved of what the president had done; and, if he had had the management of the business, he should have done the same. it had been doubted whether the sum proposed to be granted would not only finish, but equip and man the vessels. if the gentleman who had these doubts would refer to the report which had been made on the subject, he would find that $ , would be required for that purpose; the $ , proposed would barely make them ready for sea in other respects. the gentleman from pennsylvania, (mr. gallatin,) who was generally very correct in his statements, had supposed that if the frigates were finished, the president might go on to man them without consulting the legislature upon the occasion; and, to show the possibility of doing this, he had alluded to his having built a frigate for the algerines without the approbation of congress. he lamented the situation in which we stood with that country, but he believed the building of the frigate was necessary. the western insurrection, and the law-suits in london had also been named, which he should not stop to notice. in answer to the gentleman from pennsylvania, he would say, that if the president could man the vessels and send them to sea independent of congress, he might also finish them without their aid; but he did not believe he would place himself in the same situation with respect to them as if he had to do with a foreign nation. in relation to foreign nations, he had great power; but, if he went beyond his power with respect to internal regulations, he would be liable to impeachment, and he would be one of the first to promote an impeachment, were such to be his conduct. mr. ames said, he understood the gentleman from virginia (mr. nicholas) to say, that the conduct of the executive was illegal; but certainly if a frigate was estimated to cost $ , and it cost $ , , the expenditure of the additional $ , was not illegal. mr. nicholas said, he had made use of the gentleman's own words with respect to the change in the plan of building the frigates, which he had called illegal. mr. ames said, as to the size of the vessels, that was executive business. the gentleman from virginia (mr. venable) seemed to take the observation which he had made with a degree of sensibility perfectly natural, because it went to touch the power which he had claimed as a member of that house. the gentleman said, "here i intrench myself behind my privileges." nothing was said about the public good; all was self. and was it to be considered, he asked, that they enjoyed the powers committed to them in their own right, as barons of empire, as sovereign despots? or was the power placed in them to be exercised like other duties, according to justice and propriety? he believed no one would deny that the latter was the truth. how did the matter stand? they had attempted to repeal a law, but another branch of the legislature had refused to accede to the repeal; of course it could not be effected. were they then to act as if the law had been repealed? yes, say gentlemen, we will refuse to appropriate the money since we think the thing unnecessary. he hoped, however, the day would soon come (as melancholy would be the period until it did arrive) when this power of refusing an appropriation to carry an existing law into effect, should no longer be countenanced by a majority of that house. mr. venable was of opinion, that if the gentleman from massachusetts had only the public good in view, which he had spoken of, he could have had no inducement to have gone into the arguments which he had introduced on this occasion. he could assure that gentleman that he felt himself as strongly bound to consider the public good in all his conduct as he could be. he believed no instance could be named in which he had not consulted that interest. as to what was, or was not, calculated for the public good, he must be left at liberty to judge for himself. but the gentleman had not put the business on this ground, but because gentlemen differed in opinion from others, they were charged with assuming absolute authority, with principles of despotism, overturning the government, &c. mr. v. said, it was his opinion, that in all laws which came before that house, every member had a full right to say yea or nay, for which they were not accountable to that gentleman, or to any other. the other branches of government had also the same power. indeed, the other house had exercised this right in negativing the repeal of the law relative to the manning of these vessels. he trusted both houses would always continue to assert their right thus to use their discretion and privilege. mr. ames said, he had not charged that house with usurping power, or breaking down the other branches of government; nor did he say they had not a discretion; but that their discretion ought to be regulated by duty. mr. swanwick said, amidst all the foreign objections which had been urged against this appropriation, he wished the act passed last session to be referred to. [mr. s. read an extract from it.] here, in april last, said he, it is provided that the frigates shall be finished, and yet now gentlemen wished the house to come to a conclusion only to half finish them. what, he asked, would the world think of such a versatility of conduct? mr. kitchell thought, if they meant to get through the business which lay before them, it was time they disposed of this question. he thought the debate upon it had been sufficiently long. mr. brent said, when this subject first came before the committee, he had determined to give the sum necessary to complete them; nor had he ever wavered on the subject, until he heard the ground which had been taken by the gentleman from massachusetts, (mr. ames.) he did most feelingly participate in the sentiments expressed by his colleague (mr. venable) on the occasion. it was really difficult to know what was the amount of his doctrines. in the first instance, he understood the gentleman to rise for two purposes, viz: to justify the executive from certain charges which had been brought against him, and to show the obligation which the house lay under to grant the money. in the first place, the gentleman said the executive had been charged with violating the law; and, when he went into the subject, he understood him to say, as his colleague understood him, that the executive had changed the plan; he understood him to say, that though congress had ordered -gun frigates, he had ordered 's, which remark he concluded by expressing his approbation of the president's conduct. if he admitted that the executive had violated the law, and yet felicitated him upon having done so, he might enjoy his pleasure, he would not participate with him. with respect to the second part of his observations, as to the absolute necessity under which every member lay to vote for the sum required for finishing the frigates, because the building of them was directed by law, this was a most important point. he thought this involved one of the most valuable principles which that house possessed, and which should never be lost sight of, viz: the right of every member to exercise his discretion upon every question, appropriations as well as others, which came before him. did not the gentleman know that the most solemn decision had taken place last session on this subject, by a large majority? indeed, said he, this sentiment was so ingrafted in the constitution that the house could not divest themselves of it; for the gentleman to say they did not possess it, was to make a dead letter of their privileges. there could be no doubt on the subject; and it was a sacred and essential principle which would go further to preserve our liberties than any other which they possessed. he trusted, therefore, they should guard it with special care. mr. gallatin said, he did not mean to follow the gentleman from massachusetts in what he had said on this subject, because he had not felt the force of what he had advanced, nor very well understood what he meant. both his meaning and his motive for bringing this subject before them to-day were to him mysterious. he had brought before them the treaty question anew, and it would be recollected what were the feelings of the house on that occasion; but he could see no relation which it bore to the present question; and though a number of members in that house had asserted that they were bound to appropriate money to carry a treaty into effect, he did not believe they were ready to say the same with respect to laws. the gentleman from massachusetts had said, that if they put a meaning upon the constitution in this respect different from him, that they arrogated the supreme power to themselves. did not he know that the doctrine applied to the senate as well as to that house? and did he not see that that would be a check upon the abuse of it in either house, since it was a weapon which both could use? the gentleman had said they were bound to obey the law. bound to obey what law? the law for authorizing the building of the three frigates? he did not understand how this law was to bind them. this was a mere administrative law, which did not extend to the citizens of the united states, but gave power to the president to do a certain act; therefore, as citizens, they had nothing to do with that law, except they were to obey it by appropriating the money necessary to carry it into effect. yet the gentleman allowed there might be cases in which it would be right to use discretion in the appropriation of money. for his part, he did not understand the being bound and not bound at the same time; to have discretion and no discretion. he wished either that the one or the other opinion might be adopted; and that they might be told that they had, or that they had not, a right to exercise discretion in the appropriation of money. if this exercise were to be allowed in any case, why could it not be allowed in the present? he wondered, therefore, that gentlemen in favor of this motion should have touched upon this ground. he agreed with the gentleman that they had this discretion, and that it ought to be used with caution, and not upon trifling occasions. but he conceived this to be one of those occasions in which it was necessary for those opposed to a naval establishment, to vote against this appropriation. he meant against the appropriation in its extent. it was because he considered a naval establishment as highly injurious to the interests of this country, he should vote against every measure which had a tendency to produce it. that gentleman, and others who thought differently, would vote accordingly. mr. g. moved an amendment, viz: that before the word "frigates," to add "the hulls of." on the question, ayes , noes --the chairman giving his vote against the amendment, it was not carried. it was then put in the original form, to finish the frigates, the sum of ---- dollars, and carried--ayes . the question on the blank being filled with $ , was then put, and carried--ayes . mr. gallatin moved to add an item to pay the bounty of one hundred dollars which they had agreed should be paid to every officer discharged from the military service in consequence of the regulations which had taken place in the establishment. this item was filled up with three thousand dollars. mr. gallatin moved to add the following words: "which several sums shall be solely applied to the objects for which they are respectively appropriated." mr. w. smith wished, as much as the gentleman from pennsylvania, to confine the expenditure to the sums appropriated; but the provision for some objects might fall short, while others might have a surplus, which he thought ought to be made use of to supply deficiencies in cases of emergency. ever since the establishment of the present government, the whole appropriation for the military establishment had been considered as an aggregate fund out of which any of the objects of that establishment might be paid for; but the expense of each object was now to be confined to the specific appropriation. he was afraid, however well this might look in theory, it would be found very mischievous in practice. he wished the gentleman would amend his proposition by adding, "so far as may be consistent with public exigency;" this would restrict the expenditures, except in unforeseen cases of emergency, to provide for which some latitude of discretion ought to be left to the executive. mr. sitgreaves did not see the necessity or propriety of the amendment of his colleague, when the house had distributed the appropriations amongst the different objects; as the amendment, he conceived, meant nothing more than the department should not expend any more than the sum appropriated for the different items, which they had no right to do if there were no amendment. heretofore, when appropriations were made in a mass, the secretary of war did not feel himself bound to govern himself by the estimate which he had given in, but by particularizing the different items, the former evil was corrected. mr. gallatin said, if the fact was exactly as it had been stated by his colleague, his amendment might be unnecessary, but the treasury department had not acted upon the principle which he had stated. they had, notwithstanding the distribution of the appropriation, thought themselves at liberty to take the money from an item where there was a surplus, and apply it to another, where it was wanted. and when this was objected to, as taking from the legislature their appropriating power, they answered that the legislature had entered so much into detail that they could not attend to their directions. they had, last session, made the appropriations more specific than at present, yet the secretary of the treasury, in a letter written to the house during this session, said, "that it was well known to have been a rule since the establishment of the government, that the appropriations for the military establishment were considered as general grants of money, liable to be issued to any of the objects included under that department." therefore, unless this amendment was introduced, it would leave the power as before. in order to make the business more easy, all the contingent expenses were appropriated in one sum. the object of this amendment, said mr. g., was that no part of the pay of the army should go to the quartermaster's department, &c., and that none of them should go to the building or equipping the frigates; but if this were not the case, money might be found to get the frigates to sea from the appropriations for the military department, if the president should think it necessary so to apply it. as to the amendment, it would do away the intention of it altogether. mr. harper was against the amendment. he thought the department ought to be at liberty, in case of an appropriation proving deficient, to have recourse to other funds where there might be a surplus, and as none would be taken, except where there was a surplus, he could see no objection to this being allowed. indeed, for want of such a privilege very serious inconveniences might arise to the service, in case of accident or unforeseen events. mr. gallatin said, the law did not operate in the manner which the gentleman last up supposed. they had lately voted a sum of forty thousand dollars to make good a deficiency of last year, which had been used for some other purpose; in consequence the deficiency fell upon the pay of the army, although that could not increase, because the number of men was never increased; it might be less, as the nominal, not the actual number of men was appropriated for. mr. kittera thought the amendment a bad one. suppose, said he, a boat should be overset with tents in the lake, or a magazine blown up, the losses could not be repaired, because, though there might be surplus sums in the treasury from other items in the establishment, yet, if this amendment prevailed, they could not be touched. he thought this would be the effect; he was against innovations. the amendment was put and carried, there being fifty-four votes in favor of it. the committee then rose, and the house took up the amendments. and then the main question, "to finish the frigates ---- dollars," was taken by yeas and nays, as follows: yeas.--fisher ames, abraham baldwin, theophilus bradbury, richard brent, daniel buck, dempsey burges, joshua coit, william cooper, william craik, samuel w. dana, james davenport, henry dearborn, george dent, george ege, william findlay, abiel foster, dwight foster, nathaniel freeman, jr., ezekiel gilbert, nicholas gilman, henry glenn, chauncey goodrich, roger griswold, william b. grove, robert goodloe harper, carter b. harrison, thomas hartley, john heath, william hindman, john wilkes kittera, edward livingston, samuel lyman, francis malbone, john milledge, frederick a. muhlenberg, william vans murray, john nicholas, alexander d. orr, josiah parker, elisha r. potter, john read, samuel sewall, samuel sitgreaves, jeremiah smith, nathaniel smith, isaac smith, william smith, thomas sprigg, john swanwick, zephaniah swift, george thatcher, richard thomas, mark thompson, john a. van allen, philip van cortlandt, joseph b. varnum, peleg wadsworth, and john williams. nays.--theodorus bailey, david bard, thomas blount, nathan bryan, samuel j. cabell, gabriel christie, thomas claiborne, john clopton, isaac coles, jesse franklin, albert gallatin, james gillespie, christopher greenup, andrew gregg, wade hampton, john hathorn, jonathan n. havens, james holland, andrew jackson, george jackson, matthew locke, william lyman, samuel maclay, nathaniel macon, andrew moore, anthony new, john patton, john richards, israel smith, richard sprigg, jr., william strudwick, and abraham venable. the question to fill the blank with $ , was then put and carried--ayes , noes , and the bill ordered for a third reading to-morrow. friday, march . _call for statements._ mr. gallatin said, he wished to propose to the house three resolutions, calling for statements relative to the war department, which he wished to be laid before the house at the next session. they had heard it said upon that floor, by gentlemen who were considered to be well acquainted with the subject, that many expenses had taken place in that department which ought to have been checked. conceiving a check of this kind to be necessary, and knowing the expense of the military department was increasing from year to year, beyond what the increase in the number of troops would warrant, it was proper to lay the foundation of an inquiry into the subject. indeed, having just passed a pretty severe law relative to the receivers of public money, and understanding that the secretary of the treasury had a long list of delinquents, he was desirous of taking some steps in the business. from these considerations, he offered the following resolutions for acceptance: "_resolved_, that the secretary of the treasury be directed to lay before the house of representatives, within the first week of january next, abstracts of the accounts of all paymasters, quartermasters, contractors, agents for the purchase of supplies, and generally of all the receivers of public moneys, paid from the treasury from the st of january, , to the st of january, , on account of the military establishment, so as to exhibit a detailed statement of the whole amount of moneys thus expended to that period; and whether any of the accounts be not finally settled; and shall lay before the house an estimate of moneys not accounted for. "_resolved_, that the secretary of the treasury be directed to lay, at the same time, before the house of representatives similar abstracts of the accounts of all the receivers of public money expended for the building of the frigates. "_resolved_, that it shall be the duty of the secretary of the treasury to lay before the house of representatives, within the last week of january in each year, a statement of money expended for the military establishment during the next preceding year, distinguishing the sums expended under each head, for which specific appropriations have been made, and an estimate of the probable unsettled demands in relation to each of those heads." the resolutions were severally agreed to. evening session. _military and naval appropriations._ the bill appropriating money for the military and naval establishments, was received from the senate with an amendment, proposing to do away the restriction which had been introduced into the bill to confine the expenditure of money to the specific objects for which each sum is appropriated. mr. dana hoped the house would recede from the amendment. mr. gallatin said that, by the constitution, no money was to be granted but by a law passed in the regular mode. now, said mr. g., this is not by law, if, after a certain sum is granted for one item, it be not used for that purpose, but put to some other object. this was certainly according to the spirit of the constitution, and if you do not strictly abide by that, you may as well set aside the constitution, and say we will appropriate $ , , for the support of government for the present year. if we mean to carry the constitution into effect we must reject the amendment. mr. sitgreaves observed, that his opinion on this point was, that the house had a constitutional power to depart from any identifying of articles to sums granted, and that departure grew out of necessity; for the extreme embarrassment which would attend the practice of a strict adherence, would render it impracticable. but, as he did not mean to stand responsible for the motion, he should be satisfied with calling for the yeas and nays; which were agreed to be taken. mr. nicholas thought, that when gentlemen went on supporting such unlimited measures as had lately taken place, and voting such a waste of money, it would be very dangerous. when we see large sums voted for an army and navy in time of peace, said he, it would justify us in adopting some regulation to prevent it. the difference between the operation of this and the other mode is, that in this you confine your public officers to the identical object for which a sum is appropriated; otherwise they might use what they would call overplus money for any object they might think fit. according to this method, proposed by the senate, any sum may be taken from any certain object, and placed to any other, which mr. n. thought too unbounded a power to be placed in the executive. mr. parker said, he would not pretend to justify the expenditure on the military establishment, but he could not help observing that the casualties to which the forage and clothing, &c., which is transported to our garrisons, are exposed, are very great. though at peace with the indians, it is but a temporary one, and we cannot be sure they will not intercept our stores; besides other accidents to which it is exposed, all which make it necessary that the hands of the executive should not be tied from using the surplusage of some, for the accidental and unforeseen deficiencies of others; without this the army may be exposed to the most poignant distress, owing to a deficiency in the appropriation, while the treasury has money in hand as surplus from other objects. considering the great importance of an appropriation, he hoped gentlemen would not so incline to oppose the bill, especially, said he, when our existence will not, as a legislative body, be more than four hours, and, in that time, it must pass other authorities before it can be put into effect; if it is lost, the effects will be bad. mr. p. said he had as many scruples as any gentleman, and would take every measure to preserve the constitution inviolate, but he should be sorry if, under the fear of offending it, the government should be stopped. mr. heath.--if my existence was to be but for one moment, i would stand here and oppose this resolution; to let it pass, is precluding the freedom of inquiry into the conduct of our public officers. if we were to commence this loose kind of a way of appropriating, we may go on to do this, that, and the other, until we were too far to stop. were we to indulge ourselves to go into the wide fields of accident, we might suppose this and that, but our imaginations would have no end. he lamented the shortness of the time they had to discuss it. mr. gilbert acknowledged this was the age of reason, but he was sorry the house should be inclined to adopt an entire new doctrine of privileges. we should not hazard a new position, when it may be attended with the greatest danger; therefore he hoped they would agree with the senate. mr. harper thought it would not be very difficult to convince gentlemen who oppose it, that the amendment was calculated to secure the very object they wished. it was not a violation of the constitution, as some gentlemen supposed. he would ask, could not an appropriation be made for the use of the military establishment in general terms? yes, he would answer; else how could an appropriation in general terms have been made for the intercourse with foreign nations? certainly it could not be unconstitutional to appropriate the overplus of one article to supply the deficiency of another. one moment's reflection, mr. h. thought, would convince members of the error of a contrary opinion. it might not be safe to do it without law, but here is a law allowing it. the whole must suffer if the war department is deficient, which cannot be avoided if one is not to assist another branch, for it is scarce possible to guard against every contingency. he thought the amendment beneficial in the highest degree, and without it, would stop the war department in its operations. he hoped no delay would take place, as it endangered the bill. mr. varnum said, that notwithstanding all that gentlemen might produce to prove the necessity of giving the executive large powers, yet it was dangerous; he instanced that, if the executive were determined to man and equip the frigates for sea, they would have power to do it from money appropriated, and intended for other purposes; thus it was transferring a power, solely vested in the legislature, into the executive department. he thought it was an infringement on the constitution; it was putting the power where it never was intended to be; although he had great respect for that department, yet he did not wish to see its powers extended too far. a gentleman had intimated he should not wish the bill to be altered, if he was sure there would not be war with the indians. he would answer that there could not be a war until the legislature met again. mr. v. said, that there was one-fifth more money appropriated than could be used before the next meeting of congress, for there would be two months of the present year's appropriation, during any part of which another bill might be passed. mr. swanwick thought there was no danger of the bill being lost; it was necessary to discuss a principle which appeared to admit of danger; it was throwing the whole of the money to the mercy of the treasury department. mr. page said he should vote for the amendment, but he rose to express his disapprobation of it, and he should have been glad if there was time to make another bill. we must either suffer the community to abide under great disadvantages, or ourselves. if they could exist, politically, he said he should be happy to destroy that bill. he must acknowledge that it was crammed down his throat. mr. livingston said, that the reasons urged by the gentleman from massachusetts, instead of the end he proposed, would have a contrary effect. mr. l. believed that this amendment had a tendency to lessen the privileges of the house; believing this, no object of convenience, no view to the general opinion, should ever prevent him voting against it. he believed it pregnant with mischief. the civil and military departments would be too easily connected; if the one wanted assistance, while the treasury had money in hand it would be supplied. he thought the house had voted sufficient to answer every purpose intended, and he believed, whatever specious arguments may be used, the house would not recede. if any evil attended, he was willing to take his part of the blame; but he was not apprehensive of any. mr. w. lyman hoped it would not pass, as it was full of danger and bad principles. mr. w. smith said, the appropriation to the military establishment had always been considered a general grant of money; therefore it would introduce no new principles, but the manner of this bill, passed in this house the day before the close of the session, and sent up to the senate the very day of the adjournment. mr. s. said gentlemen talked about the constitution, but he thought they had wrong ideas of the evils of this business: it was not whether they gave too much power to their officers, but the military establishment could not go on; then the president would be obliged to alarm the whole nation, and incur a vast expense to get the congress together, and all for want of due time and regulations: and now we must cram it down the throats of the senate. surely gentlemen should have some moderation, and not be so hightoned as to prevent any other branch of the legislature from exercising their powers as well as us. on the question being taken to concur with this amendment, the yeas and nays stood, to , as follows: yeas.--theophilus bradbury, daniel buck, dempsey burges, joshua coit, wm. cooper, william craik, samuel w. dana, james davenport, george dent, george ege, abiel foster, dwight foster, ezekiel gilbert, nicholas gilman, chauncey goodrich, roger griswold, robert goodloe harper, thomas hartley, william hindman, john wilkes kittera, george leonard, samuel lyman, francis malbone, john page, josiah parker, samuel sewall, samuel sitgreaves, nathaniel smith, isaac smith, william smith, zephaniah swift, george thatcher, richard thomas, john e. van allen, peleg wadsworth, and john williams. nays.--theodorus bailey, abraham baldwin, david bard, thomas blount, richard brent, nathan bryan, samuel j. cabell, gabriel christie, thomas claiborne, john clopton, isaac coles, henry dearborn, william findlay, jesse franklin, nathaniel freeman, jr., albert gallatin, james gillespie, christopher greenup, andrew gregg, wade hampton, john hathorn, jonathan n. havens, john heath, james holland, andrew jackson, george jackson, edward livingston, matthew locke, william lyman, samuel maclay, nathaniel macon, james madison, john milledge, andrew moore, frederick a. muhlenberg, anthony new, john nicholas, alexander d. orr, john patten, elisha r. potter, john read, john richards, robert rutherford, john s. sherburne, thompson j. skinner, richard sprigg, jr., thomas sprigg, william strudwick, john swanwick, joseph b. varnum, abraham venable, and richard winn. the bill was again sent to the senate, and was soon after returned with the amendment receded from. _general lafayette._ mr. harper moved that a resolution, which he laid on the table yesterday, respecting major general lafayette, should be taken up for consideration. the motion was seconded by mr. w. smith. the resolution was in the following words: "this house, strongly impressed with a just sense of the important and disinterested services rendered to their country during the late war by their fellow-citizen, major general lafayette, and deeply regretting the sufferings to which he is now subjected from a long and rigorous imprisonment, and which have equally excited their sympathy, and the ardent wish of their constituents for his deliverance, do resolve that the president of the united states be informed, that this house will see with the highest satisfaction, any measures which he may deem expedient to adopt towards effecting the restoration of their said fellow-citizen to liberty." the question was taken for the house to take it up, and lost--ayes , noes . mr. livingston said he had some time been wishing to put forward something similar; he really hoped some negotiation would be carried on to effect his liberation. it would be honorable to this country to interpose in behalf of this man, who has a claim on american service. while suffering for us on his part, let gratitude, and every feeling that can affect the heart, be ours. abandoned by his own country, and to increase his sufferings, precluded from almost every enjoyment of life, it would be honorable in us to interest ourselves in his behalf, appropriating some small sum which may enable the president to make some progress towards his releasement. thus, while it is honorable to america, if it has no effect, it may afford some comfort to the unfortunate sufferer, to think he is not forgotten. he then proposed a resolution, not materially varying from that just offered by mr. harper, hoping that the little variation would prevent it suffering a similar fate. mr. parker said, as it was a personal question, he hoped it would lie on the table. mr. coit thought it a delicate question, and one which ought not to be agitated, and therefore moved the previous question. mr. hartley spoke of mr. parker's observing its personality. he answered that the man suffered much for this country, and therefore was entitled to regard. he acknowledged with mr. coit, that there was much delicacy in the business, and therefore hoped it would speedily be discussed; it ought not be postponed; the man is now suffering in a most distressing confinement. if any of the soldiers of were here with whom he was in council, there would not be a dissenting voice to using every exertion. he hoped the house would never forget such brilliant services. mr. swanwick said, there need not be a dissenting voice, but we ought to be cautious how we multiply our negotiations, as this could not be done without entering into a negotiation with the emperor of germany in the regular way. it is not want of respect that should prevent us, but are we provided to go into all the consequences attending a new negotiation? there is a delicacy in it, of which we ought to be careful. there is not the least doubt but the president has as much desire for his release as any gentleman, but he, no doubt, deliberated, and saw the danger of it. mr. s. said he lamented our foreign negotiations _in toto_. there was no good derived from them, and he could not anticipate any from new ones. mr. nicholas said, he felt as much disposition to take measures for his release as any man, but he thought the business undertaken too hastily. suppose you give instructions to the president, and he does not think proper to act on it, so far from being a compliment to lafayette, it would hurt his mind, should he hear it had been agitated. mr. claiborne saw no difficulty attending the resolution. he hoped the house would render this essential service to the unfortunate sufferer, if even in the last hour of the congress. mr. christie said, it was an improper time to take up the resolution, but as they had to sit there two or three hours longer and no business to do, this might as well occupy the attention of the house as not. mr. livingston would be sorry to impose a burden upon the country, but he thought this a duty incumbent on them. he hoped gentlemen would openly come forward and avow their sentiments, and not shelter themselves under the previous question. remember, he came here from the pompous ease of a foreign court; he voluntarily served the cause of america, and bled for her; he, in a great measure, procured the interest which formed the alliance with france in our defence; besides spending a princely fortune in our cause, he asked nothing, nor would accept any compensation for his services: and now he is abandoned to the most dreadful situation possible; some of that compensation, justly due to his services, is refused him as a balm to his former woes by not attempting his release. this is the situation of the man for whom this house is asked only to express their desire for his comfort; this is the man who was met with pleasure in every part of the united states; all the people rejoiced to express their gratitude to him; he was accompanied with testimonials of admiration and thanks from the whole continent: and now we should not say that we will feel with pleasure measures taken towards obtaining his liberty! we can pity him, and regret his situation, but refuse to lend him the least assistance to soothe his distress. we do not call upon the house to vent its infantine sorrow, to show its womanish pity. no. we call on it to express a will, predominant throughout the united states, in the behalf of this unfortunate man. but it is said that we should get the ill will of the nations who persecuted him. unless they bid adieu to all the tender feelings of humanity, they never can take offence. it has been also supposed it would be ineffectual; he had no doubt but the executive would take those measures which would be most effectual and least endangering to the nation; it could not make the situation of the sufferer worse, and if we succeed in procuring his liberty, it would give pleasure to every heart who can sympathize with the distressed, or feel gratitude for high obligations: and if it does not have that happy effect, still we may feel consolation at having done our duty. if these measures were taken, it would illuminate the loathsome horrors of a dungeon the most dreadful; it would sweep away the reproach "that republicans know no gratitude;" that we, who had his best exertions whilst in prosperity, do not forget him in adversity. mr. l. said he really believed that if he had not known the principles of liberty here, and helped us in our struggle for it, he would have never existed in misery in the dungeon at olmutz, and therefore the highest obligations were laid on the united states to exert herself in his behalf. mr. heath hoped, that, although the gentleman had labored to excite the pathetic, yet he would not charge the house with a want of republicanism if the measure was not adopted. mr. h. thought it extremely improper to be introduced in the house. he said the president knew the will of the united states on the subject, and therefore, if he saw proper, he could take it up. he hoped the gentleman would remember this was a complicated case; for, since he had left this country, he had become a citizen of another country. mr. h. said he felt for his unfortunate situation: he had fought under his banner. we are not to be charged with a want of patriotism and feeling for this suffering hero, because we think it imprudent to interest and involve ourselves in his behalf, merely to indulge the flighty fancy of a few individuals. we might go, said he, and address the president to exert himself as far as he saw proper in his behalf, as a body of individuals, but not as a legislature. mr. w. smith could see no kind of impropriety in the measure. it had been said it was a new subject, and, therefore, ought not to be taken up now; but it was not introduced yesterday! did gentlemen want an age to express an opinion which every member feels--which the whole nation feels? the motion only went to express a wish that measures may be taken according to the judgment of the executive: if he had a thought or wish to adopt measures, this would encourage him to carry them into effect. europe might feel a pleasure that we interested ourselves in his behalf. did he not embark his all for this country? it has been well said, said mr. s., that if the motion had been made in or , no previous question would then have been called--no opposition then made. read the journals of the national representation for and : there we find one member from each state was appointed to take leave of him in behalf of the whole. [mr. s. here read the journals of that time, which insert at length the proceeding, address, and answer, attending the transaction.] there, said he, they expressed their zeal for his future welfare, and gratitude for his favors, accompanying it with a letter to the french king, requesting him to bestow his favors upon him. from the frequent respectful mention made of his services on the journals of the house, there appears to have been much attention paid to his services by congress. even the parliament of great britain, he said, had discussed the question of his confinement; and should this house refuse, who are so much obliged by his services? nothing that had been said, in opposition to it, could convince him but that we were called upon, by every tie of gratitude, to adopt the measure. the satisfaction of knowing that his services are not forgotten may render him more comfortable in his dungeon--may follow him into the deserts of siberia, or wherever the cruel hand of oppression may send him. mr. madison did not think there was time to do all the business requisite to render due justice to the motion, and he hoped the house would do more than was intended by the motion. he believed the only regular mode would be to appoint a committee to bring in a bill. he therefore moved that the house go into committee for that purpose. mr. sitgreaves said, according to the motion there was no necessity for this mode, as it was of a nature not to require the aid of another branch of the legislature; it was quite sufficient if the house passed the resolution. he was sorry to hear the previous question called for to get rid of the subject, but he hoped it would not prevail: he thought this motion required early attention. he said attention was due to lafayette; america was highly indebted to him. it is a debt of justice, and ought to be paid; and while this house delays to interpose in his behalf he must remain in confinement. those gentlemen who thought the house ought to interpose should think this is the very time, if any good is intended to be done: he therefore hoped they would not delay. mr. harper said, if the subject was on the sending an ambassador to negotiate for the liberation of this man, it might with more propriety be opposed. he was surprised that any gentleman in the house should be opposed to expressing a wish for measures to be taken which may prove effectual for that purpose. when he had no need of our caresses, the united states resounded with his name: he was then met with tokens of respect and congratulation wherever he went. but now, pining under the cruel hand of despotic vengeance in a loathsome dungeon, weighed down by chains, with a scanty allowance; when we view his present, contrasted with his past, situation--embarking from the magnificent splendor of a french court, displeasing his sovereign--embarking himself, and hazarding every thing that was dear to him, in support of american liberty--is this the man, mr. h. would ask, to whom america said, he should never cease to have her best wishes and endeavors for his good, when, in the most grievous captivity, we refuse to express a desire for a morsel of comfort to his depressed mind! what avail our toasts--our boasted recollections of him, and regret at his fate--if we take not every opportunity to alleviate that distress? but the worst of his misfortunes is not to lie in a dungeon: he is now racked with a fear of being sent into the inhospitable deserts of siberia, whence is no hope ever to expect his return into the civilized world; and, with this unwelcome intelligence, the american legislature refuses to express a wish for his deliverance! who knows but the power in whose custody he is may expect america to interest herself in his favor? and by a pretext like this he might be liberated, or at least his fear of removal dissipated, and his present misery alleviated. mr. h. said he was sure it would be highly gratifying to the citizens of america to hear of the measure; they had long expected it, and, if undertaken, he had the greatest hopes of its success, in a measure. if it should but tend to soften his present distress, it would be a happiness; but if its effects should be to restore to liberty one to whom america is so much indebted, it would amply repay whatsoever trouble is taken towards its accomplishment. mr. w. lyman did not doubt of the services of the marquis lafayette; he was always the subject of adoration and the toast of this country. besides, it has made him liberal grants for his services, and he thought there could be no proof that we were wanting in marks of esteem for him. with respect to the motion, mr. l. asked, to whom was application to be made? does any gentleman on this floor know who confined him, or by order of what government? no court are willing to avow it. britain, france, and prussia disavow it, and he believed the emperor also. until that was clear, the measure would be improper. may not the agitation of such a question in the house awaken a jealousy in some of those powers towards us, which may militate to our injury, and injure the man whom the attempt is meant to serve? gentlemen have depicted his sufferings in very lively colors, said mr. l., and were it in my power, or were it consistently in the power of the house, i should be very happy to afford relief. until some of the difficulties in its way were cleared, he said, he should be forced to put his negative to it. he thought gentlemen who saw the matter so necessary, and the way so clear, had reason to reproach themselves for letting it sleep so long, and for having introduced it at the last hour of the session of the houses. mr. harper and mr. livingston said that nothing but the constant press of public business had prevented their motions sooner, and they thought there was even now time enough, as it only required the expression of a desire of the house for the object. mr. buck said the services and sufferings of the marquis were indelibly written on the hearts of all the citizens of america, and he thought there was no need of that torrent of oratory which had been displayed to affect the feelings of the house. he thought it would prove its weakness to suffer its feelings to predominate. we ought to give a decision only by the force of judgment, after due deliberation; for _feeling_ could not look forward to consequences. were we implicitly to obey it, we should take many bad steps. do we not know, said mr. b., that he is among the persons proscribed by france? and, considering the very brittle situation of our peace with that country at present, we should be induced rather to strengthen than weaken our ties; for the motion goes to authorize the president to take _any_ measures to support lafayette. this being the situation, we know not where the measures may end, and it would be a serious thing to be plunged in a war with france on that account. he hoped the house would not precipitate the business, but give themselves time to examine the consequences. this, mr. b. said, had induced him to oppose the motion. though congenial to his feelings, he therefore should vote for the previous, and against the main question. mr. claiborne was against the previous question. he would hazard any thing for the happiness of a man we owe so much to--who sees, said he, the unfortunate man with his lady and daughter, under all the miseries that despotism and tyranny can inflict, in a wretched dungeon, without even the comforts of life! here he appealed to the feelings of the members in a very forcible manner, and, with the most bitter invective, ardently wished the destruction of his cruel oppressors. he observed on the uneasiness the members of the house were in if public business detained them half an hour after the usual time of their dinners, and applied the case to this unfortunate man in continual confinement, and after all with miserable fare. the previous question was then put, "shall the main question be now put?" and negatived--ayes . mr. livingston then brought forward a similar resolution, which caused very considerable debate, and was at length got rid of by the previous question. the principal objection to the adoption of this motion seemed to be the late period at which it was brought forward. all were agreed as to the merits and the misfortunes of the man, and had the motion been introduced at any other time than on the eve of the rising of the session, there could be little doubt it would have been agreed to by a very large majority.[ ] _thanks to the speaker._ mr. blount said he wished to offer a resolution to the house, which, as he was certain there could be no opposition to it, would occupy little of their time. he should wish the clerk to read it, and take the sense of the house upon it. it was in the following words: "_resolved_, that the thanks of this house be presented to jonathan dayton, in testimony of their approbation of his conduct in discharging the arduous and important duties assigned him while in the chair." the clerk accordingly put the resolution, and it was unanimously carried; when-- the speaker thus addressed the house: "gentlemen: i feel myself deeply impressed with this fresh proof of your approbation of my conduct in the chair. the confidence and support which you have in every instance afforded me, in the station assigned to me, have alone enabled me to discharge the important duty with satisfaction to myself, and with advantage to the public." _adjournment of the session._ a message was received from the senate, informing the house that they had appointed a committee to join a committee of that house, to wait upon the president to inform him they had finished their business, and, except he had any further communications to make, they were ready to adjourn, without day. the house then agreed to appoint a committee to join that of the senate to wait upon the president, and messrs. sitgreaves, parker, and sherburne being named, they accordingly waited upon the president; and-- mr. sitgreaves reported that the president had no further communication to make, except "that he wished them a happy return to their families and friends." the speaker then adjourned the house _sine die_, at about eleven o'clock.[ ] fifth congress.--first session. begun at the city of philadelphia, may , .[ ] president of the united states,--john adams. list of members. senators. _new hampshire._--john langdon, s. livermore. _vermont._--nathaniel chipman, elijah paine. _massachusetts._--benj. goodhue, theodore sedgwick. _rhode island._--theodore foster, ray greene. _connecticut._--james hillhouse, uriah tracy. _new york._--john s. hobart, john laurance. _new jersey._--john rutherford, r. stockton. _pennsylvania._--william bingham, james ross. _delaware._--henry latimer, john vining. _maryland._--john e. howard, james lloyd, _virginia._--stevens t. mason, henry tazewell. _north carolina._--timothy bloodworth, alexander martin. _south carolina._--john hunter, jacob read. _georgia._--james gunn, josiah tattnall. _tennessee._--joseph anderson, andrew jackson. _kentucky._--john brown, humphrey marshall. representatives. _new hampshire._--abiel foster, jonathan freeman, william gordon, peleg sprague. _vermont._--matthew lyon, lewis b. morris. _massachusetts._-bailey bartlett, stephen bullock, dwight foster, nathaniel freeman, samuel lyman, harrison g. otis, john read, samuel sewall, william shepard, thompson j. skinner, george thatcher, joseph b. varnum, p. wadsworth. _rhode island._--c. g. champlin, thomas tillinghast. _connecticut._--john allen, jona. brace, joshua coit, samuel w. dana, james davenport, o. goodrich, roger griswold, nathaniel smith. _new york._--david brooks, john cochran, lucas elmendorph, henry glenn, j. n. havens, hezekiah l. hosmer, e. livingston, john e. van allen, philip van cortlandt, john williams. _new jersey._--jona. dayton, james h. imlay, james schureman, thomas sinnickson, mark thompson. _pennsylvania._--david bard, robert brown, john chapman, william findlay, albert gallatin, andrew gregg, john a. hanna, thomas hartley, joseph heister, john w. kittera, blair mcclenachan, samuel sitgreaves, john swanwick, richard thomas. _delaware._--james a. bayard. _maryland._--george baer, william craik, john dennis, george dent, william hindman, william matthews, samuel smith, richard sprigg. _virginia._--richard brent, samuel j. cabell, thomas claiborne, matthew clay, john clopton, isaac coles, john dawson, thomas evans, carter b. harrison, david holmes, walter jones, james machir, daniel morgan, anthony new, john nicholas, josiah parker, abram trigg, john trigg, a. b. venable. _north carolina._--thomas blount, nathan bryan, dempsey burges, james gillespie, william b. grove, matthew locke, nathaniel macon, joseph mcdowell, richard stanford, robert williams. _south carolina._--lemuel benton, r. g. harper, thomas pinckney, john rutledge, william smith, thomas sumter. _georgia._--a. baldwin, john milledge. _tennessee._--william c. c. claiborne. _kentucky._--thomas t. davis, john fowler. proceedings in the senate. the first session of the fifth congress, under the constitution of government of the united states, commenced at the city of philadelphia, agreeably to the proclamation of the president of the united states, of the twenty-fifth day of march last, and the senate accordingly assembled on this day, being monday, may , . present: thomas jefferson, vice president of the united states, and president of the senate. john langdon and samuel livermore, from new hampshire. benjamin goodhue, from massachusetts. theodore foster and william bradford, from rhode island. james hillhouse and uriah tracy, from connecticut. isaac tichenor, from vermont. john laurance, from new york. william bingham, from pennsylvania. henry latimer, from delaware. john e. howard, from maryland. stevens t. mason, from virginia. alexander martin and timothy bloodworth, from north carolina. john hunter, from south carolina. josiah tattnall, from georgia. the senators whose names are subjoined produced their credentials on the th day of march last, and took their seats in the senate, viz: mr. foster, mr. goodhue, mr. hillhouse, mr. howard, mr. latimer, mr. mason, mr. ross, and mr. tichenor. william cooke, appointed a senator by the state of tennessee, produced his credentials, and the oath required by law being administered, he took his seat in the senate. _ordered_, that the secretary wait on the president of the united states, and acquaint him that a quorum of the senate is assembled. _ordered_, that the secretary acquaint the house of representatives that a quorum of the senate is assembled, and ready to proceed to business. a message from the house of representatives informed the senate, that a quorum of the house is assembled, and have elected jonathan dayton their speaker. a message from the house of representatives informed the senate that the house have appointed a joint committee on their part, together with such committee as the senate may appoint, to wait on the president of the united states, and inform him that a quorum of the two houses is assembled, and ready to receive any communications that he may be pleased to make to them. _resolved_, that the senate do concur in the appointment of a joint committee, and that messrs. livermore and langdon be the joint committee on the part of the senate. mr. livermore reported, from the joint committee, that they had waited on the president of the united states, and had notified him that a quorum of the two houses is assembled; and that the president of the united states acquainted the committee that he would meet the two houses in the representatives' chamber, at o'clock to-morrow. tuesday, may . william blount, from the state of tennessee; theodore sedgwick, from the state of massachusetts; and john vining, from the state of delaware, severally attended. a message from the house of representatives informed the senate that the house are now ready to meet the senate in the chamber of that house, to receive such communications as the president of the united states shall be pleased to make to them. whereupon, the senate repaired to the chamber of the house of representatives, for the purpose above expressed. the senate returned to their own chamber, and a copy of the speech of the president of the united states, this day addressed to both houses of congress, was read. _gentlemen of the senate, and gentlemen of the house of representatives_: the personal inconveniences to the members of the senate, and of the house of representatives, in leaving their families and private affairs, at this season of the year, are so obvious, that i the more regret the extraordinary occasion which has rendered the convention of congress indispensable. it would have afforded me the highest satisfaction to have been able to congratulate you on a restoration of peace to the nations of europe, whose animosities have endangered our tranquillity; but we have still abundant cause of gratitude to the supreme dispenser of national blessings, for general health and promising seasons; for domestic and social happiness; for the rapid progress and ample acquisitions of industry, through extensive territories; for civil, political, and religious liberty. while other states are desolated with foreign war, or convulsed with intestine divisions, the united states present the pleasing prospect of a nation governed by mild and equal laws, generally satisfied with the possession of their rights; neither envying the advantages nor fearing the power of other nations; solicitous only for the maintenance of order and justice, and the preservation of liberty; increasing daily in their attachment to a system of government in proportion to their experience of its utility; yielding a ready and general obedience to laws flowing from the reason, and resting on the only solid foundation--the affections of the people. it is with extreme regret that i shall be obliged to turn your thoughts to other circumstances, which admonish us that some of these felicities may not be lasting; but, if the tide of our prosperity is full, and a reflux commencing, a vigilant circumspection becomes us, that we may meet our reverses with fortitude, and extricate ourselves from their consequences with all the skill we possess, and all the efforts in our power. in giving to congress information of the state of the union, and recommending to their consideration such measures as appear to me to be necessary or expedient, according to my constitutional duty, the causes and the objects of the present extraordinary session will be explained. after the president of the united states received information that the french government had expressed serious discontents at some proceedings of the government of these states, said to affect the interests of france, he thought it expedient to send to that country a new minister, fully instructed to enter on such amicable discussions and to give such candid explanations as might happily remove the discontents and suspicions of the french government and vindicate the conduct of the united states. for this purpose he selected from among his fellow-citizens a character whose integrity, talents, experience, and services, had placed him in the rank of the most esteemed and respected in the nation. the direct object of this mission was expressed in his letter of credence to the french republic, being "to maintain that good understanding which, from the commencement of the alliance, had subsisted between the two nations, and to efface unfavorable impressions; banish suspicions, and restore that cordiality which was at once the evidence and pledge of a friendly union;" and his instructions were to the same effect, "faithfully to represent the disposition of the government and people of the united states (their disposition being one) to remove jealousies and obviate complaints, by showing that they were groundless; to restore that mutual confidence which had been so unfortunately and injuriously impaired, and to explain the relative interests of both countries and the real sentiments of his own." a minister thus specially commissioned, it was expected, would have proved the instrument of restoring mutual confidence between the two republics; the first step of the french government corresponded with that expectation. a few days before his arrival at paris, the french minister of foreign relations informed the american minister, then resident at paris, of the formalities to be observed by himself in taking leave, and by his successor preparatory to his reception. these formalities they observed; and on the ninth of december presented officially to the minister of foreign relations, the one a copy of his letters of recall, the other a copy of his letters of credence. these were laid before the executive directory: two days afterwards, the minister of foreign relations informed the recalled american minister that the executive directory had determined not to receive another minister plenipotentiary from the united states until after the redress of grievances demanded of the american government, and which the french republic had a right to expect from it. the american minister immediately endeavored to ascertain whether, by refusing to receive him, it was intended that he should retire from the territories of the french republic, and verbal answers were given that such was the intention of the directory. for his own justification he desired a written answer; but obtained none until towards the last of january; when receiving notice in writing to quit the territories of the republic, he proceeded to amsterdam, where he proposed to wait for instruction from this government. during his residence at paris, cards of hospitality were refused him, and he was threatened with being subjected to the jurisdiction of the minister of police, but with becoming firmness he insisted on the protection of the law of nations, due to him as the known minister of a foreign power. you will derive further information from his despatches, which will be laid before you. as it is often necessary that nations should treat, for the mutual advantage of their affairs, and especially to accommodate and terminate differences, and as they can treat only by ministers, the right of embassy is well known, and established by the law and usage of nations; the refusal on the part of france to receive our minister is then the denial of a right; but the refusal to hear him, until we have acceded to their demands, without discussion, and without investigation, is to treat us neither as allies, nor as friends, nor as a sovereign state. with this conduct of the french government, it will be proper to take into view the public audience given to the late minister of the united states, on his taking leave of the executive directory. the speech of the president[ ] discloses sentiments more alarming than the refusal of a minister; because more dangerous to our independence and union; and at the same time studiously marked with indignities towards the government of the united states. it evinces a disposition to separate the people of the united states from the government; to persuade them that they have different affections, principles, and interests, from those of their fellow-citizens, whom they themselves have chosen to manage their common concerns; and thus to produce divisions fatal to our peace. such attempts ought to be repelled with a decision which shall convince france, and the world, that we are not a degraded people, humiliated under a colonial spirit of fear and sense of inferiority, fitted to be the miserable instruments of foreign influence; and regardless of national honor, character, and interest. i should have been happy to have thrown a veil over these transactions, if it had been possible to conceal them; but they have passed on the great theatre of the world, in the face of all europe and america, and with such circumstances of publicity and solemnity that they cannot be disguised, and will not soon be forgotten; they have inflicted a wound in the american breast; it is my sincere desire, however, that it may be healed. it is my desire, and in this i presume i concur with you, and with our constituents, to preserve peace and friendship with all nations; and believing that neither the honor nor the interest of the united states absolutely forbid the repetition of advances for securing these desirable objects with france, i shall institute a fresh attempt at negotiation, and shall not fail to promote and accelerate an accommodation, on terms compatible with the rights, duties, interests, and honor of the nation. if we have committed errors, and these can be demonstrated, we shall be willing to correct them. if we have done injuries, we shall be willing, on conviction, to redress them; and equal measures of justice we have a right to expect from france and every other nation. the diplomatic intercourse between the united states and france being at present suspended, the government has no means of obtaining official information from that country; nevertheless, there is reason to believe that the executive directory passed a decree, on the second of march last, contravening, in part, the treaty of amity and commerce, of one thousand seven hundred and seventy-eight, injurious to our lawful commerce, and endangering the lives of our citizens. a copy of this decree will be laid before you. while we are endeavoring to adjust all our differences with france by amicable negotiation, the progress of the war in europe, the depredations on our commerce, the personal injuries to our citizens, and general complexion of affairs, render it my indispensable duty to recommend to your consideration effectual measures of defence. the commerce of the united states has become an interesting object of attention, whether we consider it in relation to the wealth and finances, or the strength and resources of the nation. with a sea-coast of near two thousand miles in extent, opening a wide field for fisheries, navigation, and commerce, a great portion of our citizens naturally apply their industry and enterprise to these objects. any serious and permanent injury to commerce, would not fail to produce the most embarrassing disorders; to prevent it from being undermined and destroyed, it is essential that it receive an adequate protection. the naval establishment must occur to every man who considers the injuries committed on our commerce, the insults offered to our citizens, and the description of vessels by which these abuses have been practised. as the sufferings of our mercantile and seafaring citizens cannot be ascribed to the omission of duties demandable, considering the neutral situation of our country, they are to be attributed to the hope of impunity, arising from a supposed inability on our part to afford protection. to resist the consequences of such impressions on the minds of foreign nations, and to guard against the degradation and servility which they must finally stamp on the american character, is an important duty of government. a naval power, next to the militia, is the natural defence of the united states. the experience of the last war would be sufficient to show, that a moderate naval force, such as would be easily within the present abilities of the union, would have been sufficient to have baffled many formidable transportations of troops from one state to another, which were then practised. our sea-coasts, from their great extent, are more easily annoyed and more easily defended by a naval force than any other. with all the materials our country abounds; in skill, our naval architects and navigators are equal to any; and commanders and seamen will not be wanting. but although the establishment of a permanent system of naval defence appears to be requisite, i am sensible it cannot be formed so speedily and extensively as the present crisis demands. hitherto i have thought proper to prevent the sailing of armed vessels, except on voyages to the east indies, where general usage, and the danger from pirates, appeared to render permission proper; yet the restriction has originated solely from a wish to prevent collusions with the powers at war, contravening the act of congress of june, one thousand seven hundred and ninety-four, and not from any doubt entertained by me of the policy and propriety of permitting our vessels to employ means of defence, while engaged in a lawful foreign commerce. it remains for congress to prescribe such regulations as will enable our seafaring citizens to defend themselves against violations of the law of nations; and, at the same time, restrain them from committing acts of hostility against the powers at war. in addition to this voluntary provision for defence by individual citizens, it appears to me necessary to equip the frigates, and provide other vessels of inferior force to take under convoy such merchant vessels as shall remain unarmed. the greater part of the cruisers whose depredations have been most injurious, have been built, and some of them partially equipped in the united states. although an effectual remedy may be attended with difficulty, yet i have thought it my duty to present the subject generally to your consideration. if a mode can be devised by the wisdom of congress to prevent the resources of the united states from being converted into the means of annoying our trade, a great evil will be prevented. with the same view i think it proper to mention that some of our citizens resident abroad have fitted out privateers, and others have voluntarily taken the command, or entered on board of them, and committed spoliations on the commerce of the united states. such unnatural and iniquitous practices can be restrained only by severe punishments. but besides a protection of commerce on the seas, i think it highly necessary to protect it at home, where it is collected in our most important ports. the distance of the united states from europe, and the well-known promptitude, ardor, and courage of the people, in defence of their country, happily diminish the probability of invasion: nevertheless, to guard against sudden and predatory incursions, the situation of some of our principal seaports demands your consideration; and as our country is vulnerable in other interests besides those of its commerce, you will seriously deliberate whether the means of general defence ought not to be increased by an addition to the regular artillery and cavalry, and by arrangements for forming a provisional army. with the same view, and as a measure, which even in a time of universal peace ought not to be neglected, i recommend to your consideration a revision of the laws for organizing, arming, and disciplining the militia, to render that natural and safe defence of the country efficacious. although it is very true, that we ought not to involve ourselves in the political system of europe, but to keep ourselves always distinct and separate from it if we can, yet to effect this separation, early, punctual, and continual information of the current chain of events, and of the political projects in contemplation, is no less necessary than if we were directly concerned in them. it is necessary in order to the discovery of the efforts made to draw us into the vortex, in season to make preparations against them. however we may consider ourselves, the maritime and commercial powers of the world will consider the united states of america as forming a weight, in that balance of power in europe, which can never be forgotten or neglected. it would not only be against our interest, but it would be doing wrong to one half of europe, at least, if we should voluntarily throw ourselves into either scale. it is a natural policy for a nation that studies to be neutral, to consult with other nations engaged in the same studies and pursuits. at the same time that measures ought to be pursued with this view, our treaties with prussia and sweden, one of which is expired, and the other near expiring, might be renewed. _gentlemen of the house of representatives_: it is particularly your province to consider the state of the public finances; and to adopt such measures respecting them as exigencies shall be found to require. the preservation of public credit, the regular extinguishment of the public debt, and a provision of funds to defray any extraordinary expenses, will of course call for your serious attention. although the imposition of new burdens cannot be in itself agreeable, yet there is no ground to doubt that the american people will expect from you such measures as their actual engagements, their present security, and future interests demand. _gentlemen of the senate, and gentlemen of the house of representatives_: the present situation of our country imposes an obligation on all the departments of government to adopt an explicit and decided conduct. in my situation, an exposition of the principles by which my administration will be governed ought not to be omitted. it is impossible to conceal from ourselves or the world, what has been before observed, that endeavors have been employed to foster and establish a division between the government and people of the united states. to investigate the causes which have encouraged this attempt is not necessary; but to repel by decided and united councils insinuations so derogatory to the honor, and aggressions so dangerous to the constitution, union, and even independence, of the nation, is an indispensable duty. it must not be permitted to be doubted, whether the people of the united states will support the government established by their voluntary consent, and appointed by their free choice, or whether by surrendering themselves to the direction of foreign and domestic factions, in opposition to their own government, they will forfeit the honorable station they have hitherto maintained. for myself, having never been indifferent to what concerned the interests of my country, devoted the best part of my life to obtain and support its independence, and constantly witnessed the patriotism, fidelity, and perseverance of my fellow-citizens, on the most trying occasions, it is not for me to hesitate or abandon a cause in which my heart has been so long engaged. convinced that the conduct of the government has been just and impartial to foreign nations; that those internal regulations, which have been established by law for the preservation of peace, are in their nature proper, and that they have been fairly executed; nothing will ever be done by me to impair the national engagements, to innovate upon principles, which have been so deliberately and uprightly established, or to surrender in any manner the rights of the government. to enable me to maintain this declaration, i rely upon god with entire confidence, on the firm and enlightened support of the national legislature, and upon the virtue and patriotism of my fellow-citizens. john adams. _ordered_, that messrs. tracy, laurance, and livermore be a committee to report the draft of an address to the president of the united states, in answer to his speech this day to both houses of congress. wednesday, may . richard stockton, from the state of new jersey, attended. thursday, may . henry tazewell, from the state of virginia, attended. friday, may . john henry, from the state of maryland, attended. monday, may . john brown, from the state of kentucky, and jacob read, from the state of south carolina, severally attended. john rutherford, appointed a senator from the state of new jersey, produced his credentials, which were read, and the oath required by law being administered to him, he took his seat in the senate. tuesday, may . the senate resumed the consideration of the report of the committee of the draft of an address, in answer to the speech of the president of the united states to both houses of congress, at the opening of the session. on the motion to expunge the following paragraph, to wit: "we are happy, since our sentiments on the subject are in perfect unison with yours, in this public manner to declare, that the conduct of the government has been just and impartial to foreign nations, and that those internal regulations, which have been established for the preservation of peace, are, in their nature, proper, and have been fairly executed." it was determined in the negative--yeas , nays , as follows: yeas--messrs. bloodworth, blount, brown, cocke, henry, hunter, langdon, martin, mason, tazewell, and tattnall. nays--messrs. bingham, bradford, foster, goodhue, hillhouse, howard, laurance, latimer, livermore, read, rutherford, sedgwick, stockton, tichenor, and tracy. and the report being further amended, was adopted, as follows: sir: the senate of the united states request you to accept their acknowledgments for the comprehensive and interesting detail you have given in your speech to both houses of congress, on the existing state of the union. while we regret the necessity of the present meeting of the legislature, we wish to express our entire approbation of your conduct in convening it on this momentous occasion. the superintendence of our national faith, honor, and dignity, being, in a great measure, constitutionally deposited with the executive, we observe, with singular satisfaction, the vigilance, firmness, and promptitude, exhibited by you, in this critical state of our public affairs, and from thence derive an evidence and pledge of the rectitude and integrity of your administration. and we are sensible it is an object of primary importance, that each branch of the government should adopt a language and system of conduct which shall be cool, just, and dispassionate, but firm, explicit, and decided. we are equally desirous, with you, to preserve peace and friendship with all nations, and are happy to be informed, that neither the honor nor interests of the united states forbid advances for securing those desirable objects, by amicable negotiation with the french republic. this method of adjusting national differences is not only the most mild, but the most rational and humane, and with governments disposed to be just, can seldom fail of success, when fairly, candidly, and sincerely used. if we have committed errors, and can be made sensible of them, we agree with you in opinion that we ought to correct them, and compensate the injuries which may have been consequent thereon; and we trust the french republic will be actuated by the same just and benevolent principles of national policy. we do, therefore, most sincerely approve of your determination to promote and accelerate an accommodation of our existing differences with that republic, by negotiation, on terms compatible with the rights, duties, interests, and honor of our nation. and you may rest assured of our most cordial co-operation, so far as it may become necessary, in this pursuit. peace and harmony with all nations is our sincere wish; but, such being the lot of humanity, that nations will not always reciprocate peaceable dispositions, it is our firm belief, that effectual measures of defence will tend to inspire that national self-respect and confidence at _home_, which is the unfailing source of respectability _abroad_, to check aggression, and prevent war. while we are endeavoring to adjust our differences with the french republic, by amicable negotiation, the progress of the war in europe, the depredations on our commerce, the personal injuries to our citizens, and the general complexion of affairs, prove to us your vigilant care, in recommending to our attention effectual measures of defence. those which you recommend, whether they relate to external defence, by permitting our citizens to arm for the purpose of repelling aggressions on their commercial rights, and by providing sea convoys, or to internal defence, by increasing the establishments of artillery and cavalry, by forming a provisional army, by revising the militia laws, and fortifying, more completely, our ports and harbors, will meet our consideration, under the influence of the same just regard for the security, interest, and honor of our country, which dictated your recommendation. practices so unnatural and iniquitous, as those you state, of our own citizens, converting their property and personal exertions into the means of annoying our trade, and injuring their fellow-citizens, deserve legal severity commensurate with their turpitude. although the senate believe that the prosperity and happiness of our country does not depend on general and extensive political connections with european nations, yet we can never lose sight of the propriety as well as necessity of enabling the executive, by sufficient and liberal supplies, to maintain, and even extend, our foreign intercourse, as exigencies may require, reposing full confidence in the executive, in whom the constitution has placed the powers of negotiation. we learn, with sincere concern, that attempts are in operation to alienate the affections of our fellow-citizens from their government. attempts so wicked, wherever they exist, cannot fail to excite our utmost abhorrence. a government chosen by the people for their own safety and happiness, and calculated to secure both, cannot lose their affections, so long as its administration pursues the principle upon which it was erected. and your resolution to observe a conduct just and impartial to all nations, a sacred regard to our national engagements, and not to impair, the rights of our government, contains principles which cannot fail to secure to your administration the support of the national legislature, to render abortive every attempt to excite dangerous jealousies among us, and to convince the world that our government, and your administration of it, cannot be separated from the affectionate support of every good citizen. and the senate cannot suffer the present occasion to pass, without thus publicly and solemnly expressing their attachment to the constitution and government of their country; and as they hold themselves responsible to their constituents, their consciences, and their god, it is their determination, by all their exertions, to repel every attempt to alienate the affections of the people from the government, so highly injurious to the honor, safety, and independence of the united states. we are happy, since our sentiments on the subject are in perfect unison with yours, in this public manner to declare, that we believe the conduct of the government has been just and impartial to foreign nations, and that those internal regulations which have been established for the preservation of peace, are in their nature proper, and have been fairly executed. and we are equally happy in possessing an entire confidence in your abilities and exertions in your station to maintain untarnished the honor, preserve the peace, and support the independence of our country; to acquire and establish which, in connection with your fellow-citizens, has been the virtuous effort of a principal part of your life. to aid you in these arduous and honorable exertions, as it is our duty, so it shall be our faithful endeavor. and we flatter ourselves, sir, that the proceedings of the present session of congress will manifest to the world, that, although the united states love peace, they will be independent. that they are sincere in their declarations to be just to the french, and all other nations, and expect the same in return. if a sense of justice, a love of moderation and peace, shall influence their councils, which we sincerely hope, we shall have just grounds to expect peace and amity between the united states and all nations will be preserved. but if we are so unfortunate as to experience injuries from any foreign power, and the ordinary methods by which differences are amicably adjusted between nations shall be rejected, the determination "not to surrender in any manner the rights of the government" being so inseparably connected with the dignity, interest, and independence of our country, shall by us be steadily and inviolably supported. thomas jefferson, _vice president of the united states, and president of the senate_. _ordered_, that the committee who prepared the address wait on the president of the united states, and desire him to acquaint the senate at what time and place it will be most convenient for him that it should be presented. mr. tracy reported from the committee that they had waited on the president of the united states, and that he would receive the address of the senate to-morrow, at o'clock, at his own house. _resolved_, that the senate will, to-morrow, at o'clock, wait on the president of the united states accordingly. wednesday, may . elijah paine, from the state of vermont, attended. agreeably to the resolution of yesterday, the senate waited on the president of the united states, and the vice president, in their name, presented the address then agreed to. to which the president made the following reply: _mr. vice president, and gentlemen of the senate_: it would be an affectation in me to dissemble the pleasure i feel on receiving this kind address. my long experience of the wisdom, fortitude, and patriotism of the senate of the united states, enhances in my estimation the value of those obliging expressions of your approbation of my conduct, which are a generous reward for the past, and an affecting encouragement to constancy and perseverance in future. our sentiments appear to be so entirely in unison, that i cannot but believe them to be the rational result of the understandings and the natural feelings of the hearts of americans in general, on contemplating the present state of the nation. while such principles and affections prevail, they will form an indissoluble bond of union, and a sure pledge that our country has no essential injury to apprehend from any portentous appearances abroad. in a humble reliance on divine providence, we may rest assured, that, while we reiterate with sincerity our endeavors to accommodate all our differences with france, the independence of our country cannot be diminished, its dignity degraded, or its glory tarnished, by any nation or combination of nations, whether friends or enemies. john adams. the senate returned to their own chamber, and adjourned. friday, may . humphrey marshall, from the state of kentucky, attended. monday, may . james ross, from the state of pennsylvania, attended. saturday, june . the following confidential message was received from the president of the united states: _gentlemen of the senate, and of the house of representatives:_ the dey of algiers has manifested a predilection for american built vessels, and, in consequence, has desired that two vessels might be constructed and equipped, as cruisers, according to the choice and taste of captain o'brien. the cost of two such vessels, built with live oak and cedar, and coppered, with guns and all other equipments complete, is estimated at forty-five thousand dollars. the expense of navigating them to algiers may, perhaps, be compensated by the freight of the stores with which they may be loaded on account of our stipulations by treaty with the dey. a compliance with the dey's request appears to me to be of serious importance. he will repay the whole expense of building and equipping the two vessels; and as he has advanced the price of our peace with tripoli, and become pledged for that of tunis, the united states seem to be under peculiar obligations to provide this accommodation; and i trust that congress will authorize the advance of money necessary for that purpose. john adams. united states, _june_ , . _ordered_, that it lie for consideration. saturday, july . james gunn, from the state of georgia, attended. wednesday, july . the vice president obtained leave of absence for the remainder of the session. thursday, july . the vice president being absent, the senate proceeded to the choice of a president _pro tempore_, as the constitution provides, and the hon. william bradford was duly elected. friday, july . a message from the house of representatives informed the senate that the house have passed a resolution, that the president of the senate, and the speaker of the house of representatives, be authorized to close the present session, by adjourning their respective houses on monday, the th day of this month; in which they desire the concurrence of the senate. monday, july . _ordered_, that mr. tracy and mr. read be a joint committee on the part of the senate, with such as the house of representatives may appoint on their part, to wait on the president of the united states, and notify him that, unless he may have any further communications to make to the two houses of congress, they are ready to adjourn. a message from the house of representatives informed the senate that the house have appointed a joint committee on their part to wait on the president of the united states, and notify him that, unless he may have any further communications to make to the two houses of congress, they are ready to adjourn. mr. tracy reported from the joint committee, that they had waited on the president of the united states, agreeably to order, who replied, that he had no further communication to make to congress, except a respectful and affectionate farewell. the president then adjourned the senate without day. fifth congress.--first session. proceedings and debates in the house of representatives. in pursuance of the authority given by the constitution, the president of the united states, on the th day of march last, caused to be issued the proclamation which follows: by the president of the united states of america: a proclamation. whereas the constitution of the united states of america provides that the president may, on extraordinary occasions, convene both houses of congress; and whereas an extraordinary occasion exists for convening congress, and divers weighty matters claim their consideration, i have therefore thought it necessary to convene, and i do by these presents convene the congress of the united states of america, at the city of philadelphia, in the commonwealth of pennsylvania, on monday the fifteenth day of may next, hereby requiring the senators and representatives in the congress of the united states of america, and every of them, that, laying aside all other matters and cares, they then and there meet and assemble in congress, in order to consult and determine on such measures as in their wisdom shall be deemed meet for the safety and welfare of the said united states. [sidenote: [l. s.]] in testimony whereof, i have caused the seal of the united states of america to be affixed to these presents, and signed the same with my hand. done at the city of philadelphia the twenty-fifth day of march, in the year of our lord one thousand seven hundred and ninety-seven, and of the independence of the united states of america the twenty-first. john adams. by the president: timothy pickering, _secretary of state_. monday, may , . this being the day appointed by the proclamation of the president of the united states, of the th of march last, for the meeting of congress, the following members of the house of representatives appeared, produced their credentials, and took their seats, to wit: _from new hampshire._--abiel foster and jonathan freeman. _from massachusetts._--theophilus bradbury, dwight foster, nathaniel freeman, jr., samuel lyman, harrison gray otis, john read, samuel sewall, william shepard, george thatcher, joseph bradley varnum, and peleg wadsworth. _from rhode island._--christopher g. champlin and elisha r. potter. _from connecticut._--joshua coit, samuel w. dana, james davenport, chauncey goodrich, roger griswold, and nathaniel smith. _from vermont._--matthew lyon. _from new york._--david brooks, james cochran, lucas elmendorph, henry glenn, jonathan n. havens, hezekiah l. hosmer, edward livingston, john e. van allen, philip van cortlandt, and john williams. _from new jersey._--jonathan dayton, james h. imlay, and mark thompson. _from pennsylvania._--david bard, john chapman, george ege, albert gallatin, john andre hanna, thomas hartley, john wilkes kittera, blair m'clenachan, samuel sitgreaves, john swanwick, and richard thomas. _from maryland._--george baer, jr., william craik, john dennis, george dent, william hindman, william matthews, and richard sprigg, jr. _from virginia._--samuel jordan cabell, thomas claiborne, matthew clay, john clopton, john dawson, thomas evans, william b. giles, carter b. harrison, david holmes, walter jones, james machir, daniel morgan, anthony new, john nicholas, abram trigg, and abraham venable. _from north carolina._--thomas blount, nathan bryan, james gillespie, william barry grove, matthew locke, nathaniel macon, richard stanford, and robert williams. _from south carolina._--robert goodloe harper, john rutledge, jr., and william smith, (of charleston district.) _from georgia._--abraham baldwin and john milledge. and a quorum, consisting of a majority of the whole number, being present, the house proceeded, by ballot, to the choice of a speaker; and, upon examining the ballots, a majority of the votes of the whole house was found in favor of jonathan dayton, one of the representatives for the state of new jersey: whereupon, mr. dayton was conducted to the chair, from whence he made his acknowledgments to the house, as follows: "accept, gentlemen, my acknowledgments for the very flattering mark of approbation and confidence exhibited in this second call to the chair, by a vote of this house. "permit me, most earnestly, to request of you a continuance of that assistance and support, which were, upon all occasions, during the two preceding sessions, very liberally afforded to me; and, without which, all my exertions to maintain the order, and expedite the business of the house, must be, in a great degree, unsuccessful." tuesday, may . several other members, to wit: from new jersey, james schureman and thomas sinnickson; from virginia, john trigg; and from south carolina, thomas sumpter, appeared, produced their credentials, were qualified, and took their seats in the house. _president's speech._ it being near twelve o'clock, the speaker observed that it had been usual on similar occasions to the present, to send a message to the senate, to inform them that the house is now ready to attend them in receiving the communication of the president, agreeably to his appointment: such a message was agreed to, and sent accordingly. soon after, the members of the senate entered, and took the seats assigned them; and a little after twelve, the president of the united states entered, and took the chair of the speaker, (which he vacated on the entrance of the senate, the president and clerk of the senate being placed on the right hand of the chair, and the speaker of the house of representatives and the clerk on the left.) after sitting a moment, he rose and delivered the following speech. [see senate proceedings, _ante_.] having concluded his speech, after presenting a copy of it to the president of the senate, and another to the speaker of the house of representatives, the president retired, as did also the members of the senate; and the speaker having resumed his chair, he read the speech: after which, on motion, it was ordered to be committed to a committee of the whole to-morrow. wednesday, may . several other members, to wit: from new hampshire, william gordon and jeremiah smith; from pennsylvania, andrew gregg; appeared, produced their credentials, were qualified, and took their seats. _the president's speech._ the house then went into a committee of the whole, mr. dent in the chair, on the president's speech. it was read by the clerk. mr. craik then moved a resolution, which, he observed, was merely a matter of form, as there had been one to the same effect, on every similar occasion. it was, "that it is the opinion of this committee, that a respectful address should be presented to the president in answer to his speech to both houses of congress, containing assurances, that this house will take into consideration the various and important matters recommended to their consideration." the committee agreed to the resolution. they rose, and it immediately passed the house in the common form. on motion, it was _ordered_, that a committee be appointed to prepare an answer to the speech. mr. venable, mr. kittera, mr. freeman, mr. rutledge, and mr. griswold, were nominated to report the answer. friday, may . richard brent, from virginia, appeared, produced his credentials, was qualified, and took his seat. _documents referred to in the president's speech._ the speaker informed the house that he had received a communication from the department of state, containing sundry documents referred to by the president in his speech to both houses, numbered from to . he proceeded to read no. , viz: . a letter from general pinckney to the secretary of state, dated paris, december , , giving an account of his arrival at bordeaux; of his journey from thence to paris, in which, from the badness of the roads, he broke three wheels of his carriage; of the ill treatment he received from m. delacroix, &c. he remarks, that it is not surprising that the french republic have refused to receive him, since they have dismissed no less than thirteen foreign ministers; and since they have been led to believe by a late emigrant, that the united states was of no greater consequence to them than the republics of genoa or geneva. he also mentions, that it seemed to be the opinion in france, that much depended on the election of the president, as one of the candidates was considered the friend of england, the other as devoted to france. the people of france, he observes, have been greatly deceived, with respect to the united states, by misrepresentation, being led to believe that the people and government have different views; but, adds he, any attempt to divide the people from the government, ought to be to the people of the united states, the signal for rallying. gen. pinckney several times mentions mr. monroe in this letter with great respect; and says that before his arrival the directory had been very cool towards him, but, since that time, they had renewed their civilities to him. . is a report of major general mountflorence to general pinckney, dated december , , on the subject of american vessels brought prizes into the ports of france. . extract of a letter from gen. pinckney to the secretary of state, dated paris, january , , in which he mentions the distressed situation of american citizens, arriving in the ports of france, who were immediately thrown into prison, and could not be released, until an order was got from the american minister, countersigned by the french minister of foreign affairs; and no minister being acknowledged there at present, no relief could be afforded. he, however, applied to m. delacroix on their behalf, by means of the secretary, major rutledge, and got them attended to through the minister of general police. general pinckney gives a further account of conversations which passed between his secretary and m. delacroix, on the subject of his quitting paris, in which he told him he must do so, or be liable to the operation of the police laws; but refused to commit his orders to writing. he mentions barras's answer to monroe's address as a curious production; but says it was not particularly calculated as an answer to what was said by mr. monroe, as he had it prepared, and was unacquainted with what would be said by mr. monroe. . extract of a letter from gen. pinckney to the secretary of state, dated amsterdam, february , informing him, that, having had official notice to quit the french republic, he had gone to amsterdam. . extract of a letter from general pinckney to the secretary of state, dated amsterdam, march , in which he observes, that before he left paris, it was rumored that the dutch were determined to treat american vessels in the same manner as the french had done. he now believes that the french wished them to do so, as he had lately received intelligence that the dutch had objected to do this, alleging that it would be a great injury to them, as they should then lose their trade with this country, and if so, they would be deprived of furnishing that support to the french which they then gave them. france acquiesced because she saw it was her interest; and having , troops in batavia, it was generally known that they could do what they pleased with that country. the general adds, with detestation, that there are american citizens who fit out privateers to cruise against the trade of this country. . extract of a letter from major general mountflorence to general pinckney, dated paris, february , mentioning the capture of a vessel from boston, and another from baltimore, by an american citizen on board a privateer: adding, that american citizens of this class are continually wishing for more rigorous laws against american commerce. . extract of a letter from the same to the same, dated paris, february , giving an account of two more american vessels being brought into l'orient by the same man, and of another vessel taken by a french privateer. . extract of a letter from general pinckney to the secretary of state, dated amsterdam, march , mentioning the capture of several american vessels; he also speaks of the disagreeableness of his situation; and was of opinion that the new third of the french councils would determine whether this country and france were to remain at peace or go to war. though the former was desirable, he wished the measures of our government to be firm. . speech of barras, president of the french directory, on mr. monroe's recall. . the decree of the executive directory of march , relative to the seizure of american vessels. . extract of a letter from john quincy adams, esq., minister resident of the united states, near the batavian republic, to the secretary of state, dated at the hague, november , , giving an account of the disposition of the people of that country towards this, which he states to be friendly; and this he attributes to its being their interest to be so. this country, he remarks, is the only quarter from which they receive regular payments. he adds, however, that they have no will in opposition to the french government. . extract of a letter from the committee of foreign relations of the batavian republic, to the above minister, dated september , , making it appear very desirable that the united states should join them in their common cause against great britain, reminding him of the many services which they had rendered to this country. . extract of a letter from john quincy adams in answer to the above, wherein he says he shall not omit to forward their letter to this country. . extract of a letter from john quincy adams to the secretary of state, dated hague, february , , representing the french republic as paying as little attention to other neutral powers as to the united states. he alludes to their conduct towards hamburg, bremen, copenhagen, &c. . extract of a letter from rufus king, esq., to the secretary of state, dated london, march , , to the same effect. . a letter from the minister of spain, resident in philadelphia, to the secretary of state, dated may , , complaining of the injurious operation of the british treaty against spain, in three respects, viz: as it destroys the doctrine of free ships making free goods; as it makes certain articles contraband of war, which in former treaties were not considered so; and as it gives to great britain a right to navigate the mississippi, which that minister insists belonged not to us to give, as it belonged wholly to spain before it gave the right to the united states, by the late treaty, to navigate that river. he concludes his letter with saying, that the king of spain is desirous of harmony between the two countries, and relies upon the equity of his complaints for satisfaction. . a letter from the secretary of state to the spanish minister, in answer to the above; in which he acknowledges that the treaty lately concluded between the two countries had proved satisfactory to the united states, as it put an end to a dispute which had existed for many years respecting the navigation of the mississippi, and also as it afforded satisfaction to our mercantile citizens for the capture of our ships and cargoes. all these, he allowed, were acts of substantial justice; but all the other stipulations were wholly voluntary, and perfectly reciprocal. with respect to the three articles of complaint respecting the british treaty, he justified the stipulations as being just and consistent, and such as this country had a right to enter into. . a letter from general pinckney to the secretary of state, dated paris, february , stating that the day after the arrival of the news of buonaparte's successes in italy, he received a letter from m. delacroix, directing him to leave paris. general pinckney concludes this letter with observing, that the french seem to speak of this country as if it were indebted to them for independence, and not to any exertions of our own. our treaty with great britain is execrated; they wish us to have no connection with that country; they wish to destroy the trade of great britain, and they look upon us as her best customer. the whole of these documents having been read, on motion, they were committed to the committee of the whole on the state of the union, and copies ordered to be printed. monday, may . james a. bayard, from delaware, appeared, produced his credentials, was qualified, and took his seat. _answer to president's speech._ on motion, the house resolved itself into a committee of the whole, mr. dent in the chair, on the answer reported to the president's speech, which was read by the clerk, as follows: the committee to whom it was referred to prepare an answer to the speech of the president of the united states, communicated to both houses of congress, on tuesday, the th may, , report the following: _to the president of the united states_: sir: the interesting detail of those events which have rendered the convention of congress at this time indispensable, (communicated in your speech to both houses,) has excited in us the strongest emotions. whilst we regret the occasion, we cannot omit to testify our approbation of the measure, and to pledge ourselves that no considerations of private inconvenience shall prevent, on our part, a faithful discharge of the duties to which we are called. we have constantly hoped that the nations of europe, whilst desolated by foreign wars, or convulsed by intestine divisions, would have left the united states to enjoy that peace and tranquillity to which the impartial conduct of our government has entitled us; and it is now with extreme regret we find the measures of the french republic tending to endanger a situation so desirable and interesting to our country. upon this occasion, we feel it our duty to express, in the most explicit manner, the sensations which the present crisis has excited, and to assure you of our zealous co-operation in those measures which may appear necessary for our security or peace. although the first and most ardent wish of our hearts is that peace may be maintained with the french republic and with all the world, yet we can never surrender those rights which belong to us as a nation; and whilst we view with satisfaction the wisdom, dignity, and moderation, which have marked the measures of the supreme executive of our country, in its attempts to remove, by candid explanations, the complaints and jealousies of france, we feel the full force of that indignity which has been offered our country in the rejection of its minister. no attempts to wound our rights as a sovereign state will escape the notice of our constituents: they will be felt with indignation, and repelled with that decision which shall convince the world that we are not a degraded people; that we can never submit to the demands of a foreign power without examination, and without discussion. knowing, as we do, the confidence reposed by the people of the united states in their government, we cannot hesitate in expressing our indignation at the sentiments disclosed by the president of the executive directory of france, in his speech to the minister of the united states. such sentiments serve to discover the imperfect knowledge which france possesses of the real opinions of our constituents. an attempt to separate the people of the united states from their government, is an attempt to separate them from themselves; and although foreigners who know not the genius of our country may have conceived the project, and foreign emissaries may attempt the execution, yet the united efforts of our fellow-citizens will convince the world of its impracticability. happy would it have been, if the transactions disclosed in your communication had never taken place, or that they could have been concealed. sensibly, however, as we feel the wound which has been inflicted, we think with you, that neither the honor nor the interest of the united states forbid the repetition of advances for preserving peace; and we are happy to learn that fresh attempts at negotiation will be commenced; nor can we too strongly express our sincere desires that an accommodation may take place, on terms compatible with the rights, interest, and honor of our nation. fully, however, impressed with the uncertainty of the result, we shall prepare to meet with fortitude any unfavorable events which may occur, and to extricate ourselves from the consequences, with all the skill we possess, and all the efforts in our power. believing with you that the conduct of the government has been just and impartial to foreign nations; that the laws for the preservation of peace have been proper, and that they have been fairly executed, the representatives of the people do not hesitate to declare that they will give their most cordial support to the execution of principles so deliberately and uprightly established. the many interesting subjects which you have recommended to our consideration, and which are so strongly enforced by this momentous occasion, will receive every attention which their importance demands; and we trust, that by the decided and explicit conduct which will govern our deliberations, every insinuation will be repelled which is derogatory to the honor and independence of our country. permit us, in offering this address, to express our satisfaction at your promotion to the first office in the government, and our entire confidence that the pre-eminent talents and patriotism which have placed you in this distinguished situation, will enable you to discharge its various duties with satisfaction to yourself, and advantage to our common country. the clerk having finished reading the answer, the chairman proceeded to read it paragraph by paragraph. the three first paragraphs were read without any thing being said upon them; but, upon the fourth being read-- mr. evans moved, that instead of "will be felt with _indignation_," should be inserted, "will be felt with _sensibility_," as a milder phrase; as he wished to avoid using expressions more harsh than was necessary. mr. nicholas said, if his colleague would give him leave, he believed he had an amendment to offer, which would be proper to be offered before one he had moved, as he believed there was a rule in the house which forbids the striking out a clause after it had been amended; and if the amendment he should propose obtained, it might be necessary to strike out a part of that paragraph. it was his intention to move a new paragraph, to be inserted between the first and second. he believed it would be in order to do so. the chairman wished the proposition to be read. mr. nicholas asked if it was not always in order to insert a new section. the chairman believed it was, provided it was not intended as a substitute for another. mr. nicholas said he should candidly avow it to be his intention to insert several new sections. for the information of the committee, he would, therefore, read the whole, though he meant at present, to move only one. the following are the propositions which mr. n. read in his place; the first of which was under consideration: after the first section insert: "although we are actuated by the utmost solicitude for the maintenance of peace with the french republic, and with all the world, the rejection of our minister and the manner of dismissing him from the territories of france, have excited our warmest sensibility; and, if followed by similar measures, and a refusal of all negotiation on the subject of our mutual complaints, will put an end to every friendly relation between the two countries; but we flatter ourselves that the government of france only intended to suspend the ordinary diplomatic intercourse, and to bring into operation those extraordinary agencies which are in common use between nations, and which are confined in their intention to the great causes of difference. we therefore receive with the utmost satisfaction, your information that a fresh attempt at negotiation will be instituted; and we expect with confidence that a mutual spirit of conciliation, and a disposition on the part of the united states to place france on the footing of other countries, by removing the inequalities which may have arisen in the operation of our respective treaties with them will produce an accommodation compatible with the engagements rights, duties, and honor of the united states. "we will consider the several subjects which you have recommended to our consideration, with the attention which their importance demands, and will zealously co-operate in those measures which shall appear necessary for our own security or peace. "whatever differences of opinion may have existed among the people of the united states, upon national subjects, we cannot believe that any serious expectation can be entertained of withdrawing the support of the people from their constitutional agents, and we should hope that the recollection of the miseries which she herself has suffered from a like interference, would prevent any such attempt by the republic of france; but we explicitly declare for ourselves and our constituents that such an attempt would meet our highest indignation, and we will repel every unjust demand on the united states by foreign countries; that we will ever consider the humiliation of the government as the greatest personal disgrace." mr. thatcher observed, the gentleman from virginia had read three or four paragraphs, in the form of amendments. he presumed he did not mean to add these, without striking out some part of the report. he wished him to say what part he meant to strike out, that they might see how the answer would stand when amended in the way he proposed. if they stood together, they would be inconsistent. mr. giles presumed it was the object of the committee to bring into view a comparison of ideas in some shape or other, and he thought the amendment proposed was calculated to produce this effect. if he understood the answer as reported, it was predicated upon the principle of approving all the measures which had been taken by the executive with respect to france, whilst the amendment avoided giving that approbation. the simple question was, which of the two grounds the house would take? he believed the best way of ascertaining this, would be to move to insert, and if the amendments were carried, to recommit the report, to be made conformable to them. mr. gallatin said, when an amendment was carried which affected other parts of a composition, it was not usual to strike out, but to recommit. the chairman having declared the motion to be in order, mr. nicholas said, the present crisis was, in his mind, the most serious and important which this country had known since the declaration of its independence; and it would depend much, perhaps, upon the answer which they were about to return to the speech of the president, whether we were to witness a similar scene of havoc and distress to that which was not yet forgotten; such as had been passed through upon an important occasion, but such as could be entered upon only as a last resource. the situation in which we stood with respect to france called for the most judicious proceeding; it was his wish to heal the breach, which was already too wide, by temperate, rather than widen it by irritating measures. he hoped, on this occasion, they should get rid of that irritation which injury naturally produced on the mind. he declared he felt for the insult which had been offered to mr. pinckney; and he felt more for him, from the dignity with which he had borne it, which had proved him a proper character for the embassy. he was sorry that it should have been thought necessary by the french republic to refuse to acknowledge him as the minister of this country; but he did not think it right to suffer this first impression to influence their proceedings upon this business. if the insults offered were a sufficient cause for war, let the subject be examined by itself, separate from all others; but, if it be our wish to proceed with negotiation, he thought it wisest and best to adopt a firm but moderate tone. as he before observed, he felt for the situation of the gentleman employed by this country; he thought it was a trying one, and did great honor to himself, and he deserved the thanks of his country for the good temper with which he had sustained it; but mr. n. confessed the subject did not strike him with all the force with which it seemed to have impressed the mind of that respectable character. he did not consider the insult offered to government as going further than the ill-treatment which our minister had received. he believed that the circumstances, which appeared in the papers laid before them, in some degree accounted for the conduct of the french government. it appears that at first the directory were willing to receive mr. pinckney, but when they saw his credentials they refused to acknowledge him. this circumstance, he said, seemed to give a character to the transaction which explained its meaning. it will be recollected, said mr. n., that since the cause, or imagined cause (let it be one or the other) of complaint against this country, that there has been an intercourse between the two governments on this subject. it was to be expected that if there had been any intention in government to have come to an adjustment of the difference between the two countries, our minister would have been clothed with some power of accommodation. mr. n. supposed that when the french directory agreed to receive him, this was their opinion; but upon seeing his letters of credence, they found no such power was given or intended. [he read the object of his mission from the president's speech, viz: "faithfully to represent," &c.] if these, he said, were all the objects expressed in his letters of credence--and if there had been more, the president would doubtless have informed them of it--the matter perfectly justified the character he had given of it. he made these observations, because he thought on an occasion like the present, the truth should be made to appear, and though an insult had been offered to this country, which could not fail to produce irritation, yet that irritation should stop short of the point where it would produce action, as he was certain any steps taken which might hazard the peace of the country, would not conduce to the welfare of its citizens. there was a subject, he said, which seemed to have involved itself with this, and of which he should take some notice, viz: a charge against certain persons with being attached to the french cause. it might, perhaps, be the opinion of some members of that house, more particularly of strangers, that he was improperly influenced by party zeal in favor of the french, a zeal which it had been blazoned forth existed to an immoderate degree in this country. he had frequently heard insinuations of this sort, which he considered so groundless as to be worthy only of contempt; but when charges of this kind were made in the serious manner in which they were now brought forward, it was necessary to call for proof. who, said he, is the man who has this proof? he knew of none. for his own part, he had no intercourse with the french but of the commonest kind. he wished those who possessed proofs of improper conduct of this kind, would come forward and show them--show who are the traitors of whom so much is said. he was not afraid of the impressions any such charges brought against him, might make upon his constituents, or where he was known; indeed, he had not the arrogance to believe the charge was levelled against him, though he believed he was frequently charged with a too great attachment to the french cause. when he first came into that house, he found the french embroiled with all their neighbors, who were endeavoring to tear them to pieces. he knew what had been the situation of this country when engaged in a similar cause, and was anxious for their success. was there not cause for anxiety, when a nation, contending for the right of self-government, was thus attacked? especially when it was well known, that if the powers engaged against france had proved successful, this country would have been their next object. had they not, he asked, the strongest proofs (even the declarations of one of their governors) that it was the intention of england to declare war against america, in case of the successful termination of the war against france? it redounded to the honor of the citizens of this country, he said, that they had never shown a disposition to embark in the present european war. the difference, mr. n. said, between the address reported, and the proposition he had brought forward was this: the former approved all the measures of the executive, and the latter recommended an inquiry relative to the operation of the british treaty. it was this question upon which the committee would decide, and it was of importance, he said, that they should weigh the causes of difference between us and the french republic, and not decide that we are right, without examination, because, if, after being brought to hostility, we are obliged to retract, it would show our former folly and wantonness. mr. n. said he would inquire into the rights of france as they respected three principal subjects, which were more particularly causes of complaint between the two countries. these were, the right of our vessels carrying english goods, the article respecting contraband goods, and that respecting the carrying of provisions. he knew no better way to determine how far we could support those articles of the british treaty, than by extracting the arguments of our own ministerial characters in support of these measures. with respect to the question of free ships making free goods, his impressions were very different from those of the secretary of state. he says, with respect to the regulation of free ships making free goods, it is not changing a right under the law of nations; that it had never been pretended to be a right, and that our having agreed to it in one instance, and not in another, was no just cause of complaint by the french government. he advocates this transaction in his letter to mr. adet last winter. mr. n. said, he knew not what was the origin of the law of nations upon the subject; he knew not how it came into existence; it had never been settled by any convention of nations. perhaps, however, the point now under consideration came as near to a fixed principle, as any other of what are called the laws of nations ever did, as only one nation in europe could be excepted from the general understanding of it. mr. pickering, he thought, seemed not to have given full force to this circumstance, but seemed to have weakened the evidence. [he referred to what mr. pickering had said upon the subject.] it was mr. pickering's idea, that the stipulation of free ships making free goods, was a mere temporary provision; that it was not an article in the law of nations, but a new principle introduced by the contracting parties. in order to prove this was not the case, mr. n. referred to the provisions entered into by the armed neutrality of the north of europe; to a treaty between france and spain; to a note from the court of denmark; and to the declaration of the united states themselves on the subject. with respect to contraband articles, he had little to say. it was asserted that the articles stipulated in the british treaty as contraband, were made so by the law of nations. where the doctrine was found he could not say. it had been quoted from _vattel_; this authority might be correct; but he never found any two writers on this subject agree as to this article. in a late publication on the law of nations (_marten's_) he found it directly asserted that naval stores were not contraband. but he said, if the contrary were the law of nations, they were bound to extend the same privilege to france which they gave to england: they could not have one rule for the one nation, and a different one for the other. the th article of the british treaty, respecting the carrying of provisions, always struck him as a very important one. it had heretofore been contended that this article did not go to any provisions except such as were carrying to besieged or blockaded places; but he believed the british had constantly made it a pretence for seizing provisions going to france. indeed, if he was not mistaken, the british minister had publicly declared in the house of commons, that the provisions on board the vessels intended for the quiberoon expedition had been supplied from what had been captured in american vessels. mr. n. contended that this was the opinion of the executive of this country, as published in all the public papers, and of course known to the government of france. in the letter of mr. jefferson to mr. pinckney in , he declares that there is only one case in which provisions are contraband, and shows the necessity of a neutral nation observing the same rules towards all the powers at war. but, in the present case, the right was ceded during the present war. it was an unfortunate circumstance against the neutrality of this country, to find a doctrine so differently applied at different times. it was a strong proof of the progress of the passions. it might be considered as a fraudulent thing, in one instance, to give up a right for a compensation to ourselves. mr. n. concluded with observing that he had gone over the subject, he feared, not without being considered tedious by the committee; but he felt himself greatly interested in the present decision. he believed any additional irritation in their measures would place peace out of our reach. he believed, therefore, it was their business to avoid it. he believed it would be for the honor and happiness of the country to do so. mr. w. smith said, as the gentleman last up had taken a wide range of argument, he must excuse him if he confined himself, in his reply, to those parts of his observations only which appeared to him essentially to relate to the subject under consideration. he believed the question was, whether they should alter the report in the manner proposed; that is, whether they should strike out words which expressed the sensibility of this house at the unprovoked insults offered by the french republic to our government and country, or adopt the gentleman's amendment, which he read. if they agreed to this amendment, they must necessarily expect from the french republic fresh insult and aggression; for it seemed to admit that hitherto no insult had been intended. the amendment might be divided, mr. s. said, into two parts. the first went to vindicate the french from any intentional insults towards this country: it even held out an idea that the executive ought to offer some concessions to france, and even designated the kind of concession. he should, therefore, without taking notice of what the gentleman had said about the political parties of this country, or what he had said respecting himself personally, confine his observations to the points in question. the first point was, whether the conduct of france was justifiable in rejecting our minister, and sending him from the republic in the manner they had done? he thought the committee had abundant materials before them completely to refute the first proposition; and he was surprised, knowing that these documents were in the hands of every member, that the gentleman from virginia could expect to impress their minds with the idea that no indignity whatever had been offered by the french government to this country in that transaction. mr. s. said, that it appeared most clearly that the french directory intended to treat this government with marked indignity; for though the gentleman from virginia suggested an opinion that their refusal to receive mr. pinckney was owing altogether to his not being invested with extraordinary powers, this was evidently not the case, as the directory had been well informed as to the character in which mr. pinckney came, before they received his letters of credence, as appears by the letter of m. delacroix to mr. monroe, styling mr. pinckney his successor, and by other documents communicated by the president, (which he read.) there was no doubt, then, with respect to the directory being well acquainted with the character in which mr. pinckney went to france, viz: as minister plenipotentiary or ordinary minister; but, after keeping him in suspense near two months, on the day after the news arrived of bonaparte's successes in italy, he was ordered, by a peremptory mandate, in writing, to leave the french republic. this mandate was accompanied by a circumstance which was certainly intended to convey an insult; it was addressed to him as an anglo-american, a term, it is true, they sometimes used to distinguish the inhabitants of the united states from those of the west india islands, but, in his opinion, here evidently designed as a term of reproach, as he believed no other similar instance could be mentioned. upon this circumstance, however, he laid no stress; the other indignities which our minister had received were too great to require any weight to be given to this circumstance. the gentleman from virginia had confined the complaints of the french government to three articles of the british treaty; though, if the committee referred to the letter of mr. delacroix, it would be found that they did not confine them within so narrow a compass. they complain, first, of the inexecution of treaties; there are several points of complaint relative to that head. d. complaints against the decrees of our federal courts. d. against the law of june, ; and, th. against the treaty with great britain. yet the gentleman confines himself altogether to the latter. and really he did not expect at this time of day, after the subject had been fully discussed, and determined, and the objections refuted over and over again, that any gentleman would have endeavored to revive and prove their complaints on this head well founded. the three articles were: st, that free ships did not make free goods; d, the contraband article; and d, the provision article. . the stipulation with respect to neutral vessels not making neutral goods in the british treaty, was not contrary to the law of nations; it only provided that the law of nations was to be carried into effect in the manner most convenient for the united states. but this doctrine, he said, was no new thing. it had been acknowledged most explicitly by mr. jefferson, secretary of state, in july, , and was so declared to the minister of france; yet no objection was made to it until the british treaty was ratified, though long previous thereto french property was captured on board our vessels. mr. jefferson, writing on this subject to the french minister, said: "you have no shadow of complaint;" the thing was so perfectly clear and well understood by the law of nations. this happened as long ago as july or august, . but two years afterwards, when the british treaty was promulgated, the whole country was thrown into a flame by admitting this very same doctrine. france herself had always acted under this law of nations, when not restrained by treaty: in _valin's_ ordinances of france this clearly appears. the armed neutrality was confined to the then existing war; russia herself, the creator of the armed neutrality, entered into a compact with england, in , expressly contravening its principles. the principle was then not established by our treaty with england; but such being the acknowledged law of nations, it was merely stipulated that it should be exercised in the manner least injurious to us. . the next article of complaint was with respect to contraband goods. if gentlemen will consult the law of nations, they will find that the articles mentioned in the british treaty are by the law of nations contraband articles. they will find that in all the treaties with denmark and sweden, great britain had made the same stipulation. indeed, the gentleman had acknowledged that it was so stated by some writers on the law of nations; but he wished to derogate from the authority of those writers, in the same way as mr. genet, in his correspondence with mr. jefferson, had called them "worm-eaten folios and musty aphorisms;" to _vattel_ might be added _valin's_ ordinances, a very respectable work in france. how, then, can the gentleman with truth say that we have deviated from the law of nations? . the last point which the gentleman took notice of was the provision article. there was no doubt that this government would never allow provisions to be deemed contraband, except when going to a besieged or blockaded port. though he made this declaration, yet it was but candid to acknowledge that this was stated by _vattel_ to be the law of nations. [he read an extract from _vattel_.] when this was stated by lord grenville to mr. pinckney, our then minister in london, mr. pinckney acknowledged it to be so stated in _vattel_, but very ingeniously argued that france could not be considered as in the situation mentioned in _vattel_, since provisions were cheaper there than they were in england, and therefore the case did not apply. when our envoy was sent to london, both parties were tenacious on this ground. our minister was unwilling to agree to this construction of the law of nations; but the british minister insisted upon it, and if there had not been some compromise, the negotiation must have been broken off, and a war probably ensued. the result was, therefore, that, without admitting it to be the law of nations, it was agreed that where provisions were contraband by the law of nations, they should be paid for, but not confiscated, as the law of nations (admitting that construction) would have authorized. therefore some advantage was secured to france, for if great britain had confiscated our vessels going to france with provisions, it would certainly have damped the ardor of our citizens employed in that commerce; but under this regulation our merchants were certain of being paid for their cargoes, whether they arrived in france or were carried into england. these were the three grounds of objection which the gentleman from virginia had stated as grounds of complaint by the french against the british treaty. before he went further, he would observe that, admitting (which he did not admit) that there had been solid grounds of objection against the british treaty, before it was ratified, yet they ought now to be closed. it had received a full discussion at the time; it had been carried into effect, was become the law of the land, and was generally approved of by the country. why, then, endeavor to stir up the feelings of the public against it by alleging it to be just cause of complaint? if the committee wanted any proof of the approbation which that instrument had received, he thought it might be gathered from the general approbation which had been given of the administration of the late president on his retirement from office, in doing which the people had doubtless taken into view the whole of his conduct. nor did he think the people had shown any hostility to the treaty in their late election of members to that house. indeed, he believed that the approbation which the treaty received increased in proportion as the subject came to be understood. admitting further, that the treaty had changed the existing state of things between great britain and france, by having granted commercial favors to great britain; by the d article of our treaty with france, the same favors would immediately attach to france, so that she could have no reason to complain on that ground. indeed france had herself new modified the treaty between that country and this, and had taken to herself what she deemed to be the favors granted to great britain. [mr. s. read the decree on this subject of d march last.] mr. s. said, he believed he had examined all the observations of the gentleman from virginia, relative to the treaty, which were essential to the subject under consideration. he did not wish to go much farther on the present occasion, because he agreed with him, that it was proper they should keep themselves as cool and calm as the nature of the case would admit; but he thought whilst so much deference was paid to the feelings of france, some respect ought to be paid to the feelings of america. he hoped the people of america would retain a proper respect and consideration for their national character; and however earnestly he wished that the differences subsisting between the two countries might be amicably settled, yet, he trusted that our national dignity would never be at so low an ebb as to submit to the insults and indignities of any nation whatever. in saying this, he expressed his hearty wish to keep the door of negotiation with france unclosed; but at the same time he strongly recommended to take every necessary step to place us in a situation to defend ourselves, provided she should still persist in her haughty demeanor. mr. s. said, as he knew indecent and harsh language always recoiled upon those who used it, he did not wish to adopt it; but, at the same time, it was due to ourselves to express our feelings with a proper degree of strength and spirit. he was not in the habit of quoting any thing from m. genet, but there was one expression of his which he thought contained good advice, "all this accommodation and humility, all this condescension attains no end." after the gentleman from virginia had dwelt sufficiently upon the danger of irritating the french, he had emphatically called upon us to recollect our "weakness." it might have been as well if he had left that to have been discovered from another quarter. he hoped we had sufficient confidence in the means of defence which we possessed, if driven to the last resort; and he believed if there was any one more certain way of provoking war than another, it was that of proclaiming our own weakness. he hoped such a language would now be spoken as would make known to the french government that the government and people of this country were one, and that they would repel any attempt to gain an influence over our councils and government. the gentleman had said that there did not appear to be any design of this kind, and had endeavored to do away what was stated as the opinion in france, in general pinckney's letter. he did not mean to rest this altogether upon the reports of an emigrant, whom general pinckney mentions as having represented this country divided, and of no greater consequence than genoa or geneva, but he took the whole information into view. [he read the extract relative to this subject.] it was evident, mr. s. said, from this information from france, that an opinion had been industriously circulated there that the government and people of this country were divided; that the executive was corrupt and did not pursue the interests of the people; and that they might, by perseverance, overturn the administration, and introduce a new order of things. was not such an opinion of things, he asked, calculated to induce france to believe that she might make her own terms with us? it was well known what the french wished, and it was time to declare it plainly. his opinion was that they designed to ruin the commerce of great britain through us. this was evident. they talk of the british treaty; but they suffered it to lie dormant for near twelve months, without complaining about it. why were they silent till within a few weeks before the election of our president? why did they commit spoliations upon our commerce long before the british treaty was ever dreamt of? their first decree, directing spoliations of our property, and the capture of our provision ships, was on the th of may, , a month before the provision order of great britain, which was dated june , ; and why have they, from that time to this, been committing spoliations on our commerce? the british treaty was published in paris in august, ; a year after, in july, , they determine to treat us in the same way that we suffer other nations to treat us, and this decree was not made known to our government till the october following, a few weeks before the election of president. but this was not all; the french had pursued similar measures towards all the other neutral powers. sweden, in consequence, had no minister in their country, and was on the eve of a rupture. the intention of the french evidently was, to compel all the neutral powers to destroy the commerce of great britain; but he trusted this country had more spirit than to suffer herself to be thus forced to give up her commerce with great britain; he trusted they would spurn any such idea. mr. s. hoped the observations which he had made would not be construed into a wish to see the united states and france involved in a war. he had no objection to such measures being taken for preserving peace between the two countries as should be consistent with national honor. it was a delicate thing for them to suggest what the executive ought to do. it was out of their province to direct him. the executive had various considerations to take into view. we had injuries to complain of against france, for the spoliations committed upon our commerce. if the executive conceive we have a right to redress, that subject will of course constitute a part of our envoy's instructions. would it then be proper, said he, for this house to interfere with the executive, to obtrude its opinion and say, "you must give up this point; we take upon us (without any authority by the constitution) to give _carte blanche_ to france, without any indemnification or redress." the gentleman says it is the object of the amendment on the table to recommend to the executive to remove any inequalities in the treaties; that was alone sufficient to vote it out. there had been no period since the revolution which had so powerfully called on americans for that fortitude and wisdom which they knew so well how to display in great and solemn emergencies. it was not his intention to offend any one by stating the question in such strong terms; but he was persuaded that when the present situation of our affairs with respect to france was well understood, it would be found that to acquiesce in her present demands was virtually and essentially to surrender our self-government and independence. tuesday, may . two other members, to wit: from north carolina, joseph mcdowell, and from virginia, josiah parker, appeared, produced their credentials, were qualified, and took their seats. _answer to the presidents speech._ the house then went into a committee of the whole, mr. dent in the chair, on the amendment of mr. nicholas to the report of the select committee, in answer to the president's speech. mr. freeman first rose. he observed, that in his observations on the subject before the committee, amid the conflicting opinions of gentlemen whom he respected, he did not mean to express his own either with confidence or with zeal. though one of the committee that had reported the address, he could not approve it _in toto_. he had two principal objections to it. first, to that part which went to an unequivocal approbation of all the measures of the executive respecting our foreign relations; and, secondly, to that part which contained expressions of resentment and indignation towards france. in framing an answer to the president, he conceived the committee should have refrained from expressing an unqualified approbation of all the measures of the executive. to omit it would not imply censure. by introducing it, it forced all those who entertain even doubts of the propriety of any one executive measure to vote against the address. the principal causes of the irritation on the part of france, insisted upon in the answer, were the rejection of our minister, and the sentiments contained in the speech of the president of the directory to our late minister. if gentlemen would look into the documents laid before the house by the president, he was confident they would find the true reason for the refusal to receive our minister. he came only as an ordinary minister, without any power to propose such modifications as might lead to an accommodation, and when the directory discovered this from his credentials they refused him. in answer to this, it had been urged that m. delacroix, minister of foreign affairs, from the first, well knew that mr. pinckney was only the successor to mr. monroe, and that his coming in that quality was not the reason why the french refused to receive him. mr. f. referred to the documents which had been laid before the house on this subject, from which it appeared that the secretary of m. delacroix had suggested a reason for the apparent change of opinion on the subject of receiving mr. pinckney. suppose, the secretary observed, that m. delacroix had made a mistake at first in the intentions of the directory, was that mistake to be binding on the directory? he did not wish to be understood to consider the conduct of the french as perfectly justifiable; but he could not conceive that it was such as to justify, on our part, irritating or violent measures. as to the speech of the president of the directory, he could not say much on it, he did not perfectly understand it. as far as he did, he considered it a childish gasconade, not to be imitated, and below resentment. [he read part of it]. it was certainly arrogant in him to say that we owed our liberty to their exertions. but if the french could derive any satisfaction from such vain boasting he had no objection to their enjoying it. there was another part of the speech that had been considered as much more obnoxious. it was said to breathe a design to separate the people here from their government. the part alluded to was no more than an expression of affection for the people; he could see nothing in this irritating or insulting; it was a mode of expression which they used as to themselves, and by which they wished to convey their affection for the whole nation. the term people, certainly included the government, and could not with propriety, therefore, be said to separate the people from it. an idea had been thrown out by the gentleman from south carolina, that the people generally approved of the british treaty; he inferred it from the fate of the late elections. for his part he could see no great alteration to have been produced by the late elections; and if there had been it would not have been an evidence to his mind that the people approved of the british treaty. he believed, for his part, that the opinions of a great majority of the people had been uniformly averse to it; and those who advocated it were by this time nearly sick of it. it was true a spirit was aroused by the cry of war at the time the subject of appropriation was pending, that produced petitions, not approving however of the stipulations of the treaty, but asking that it might be carried into effect since it had reached so late a stage. another engine, he observed, had been wielded with singular dexterity. much had been effected by the use, or rather abuse, of the terms federalist and anti-federalist, federalism and anti-federalism. when the federal constitution was submitted to the people, to approve it, and endeavor to procure its ratification, it was federalism. afterwards, when the government was organized and in operation, to approve every measure of the executive and support every proposition from the secretary of the treasury, was federalism; and those who entertained even doubts of their propriety, though they had been instrumental in procuring the adoption of the constitution, were called anti-federalists. in to be opposed to madison's propositions, the resolution for the sequestration of the british debts, and the resolution prohibiting all intercourse with great britain, was federalism. in it was federalism to advocate the british treaty; and now he presumed that it would be federalism to support the report of the committee and hightoned measures with respect to france. in he acknowledged that federalism assumed a very different attitude from what it had on the present occasion; it was then the attitude of meekness, of humanity, and supplication. the men who exclusively styled themselves federalists, could only deplore with unavailing sighs the impotence of their country, and throw it upon the benevolence and magnanimity of the british monarch. their perturbed imaginations could even then see our cities sacked and burnt, and our citizens slaughtered. on the frontier they heard the war-hoop, and the groans of helpless women and children, the tortured victims of savage vengeance. now we are at once risen from youth to manhood, and are ready to meet the haughty republic of france animated with enthusiasm and flushed with victory. mr. f. observed, that he rejoiced however that gentlemen adopted a bolder language on this than had been used on the former occasion. he felt his full shame in the national degradation of that moment. he was in favor of firm language; but he would distinguish between the language of manly firmness and that of childish petulance or ridiculous bombast. mr. griswold said, if he understood the state of the business, the question was, whether the committee would agree to the amendment proposed by the gentleman from virginia? if it contained sentiments accordant to the feelings of the committee, it would of course be adopted; if not, it would doubtless be rejected. he supposed it would form an objection to this amendment, if it were found to be inconsistent with the other parts of the report. he believed this to be the case; but he would not make objections to it on this ground. he would examine the paragraph itself, and see whether it contained sentiments in unison with those of the committee. he believed this would not be found to be the case, and that when the committee had taken a view of it, it would be rejected. if he understood the proposition, it contained three distinct principles, viz: . to make a new apology for the conduct of the french government towards this country. . that the house of representatives shall interfere with and dictate to the executive in respect to what concessions ought to be made to the french republic. . it depends upon the spirit of conciliation on the part of france for an adjustment of the differences existing between the two governments. the apology, he said, was a new one, and one which the french had not thought of making for themselves; for they tell us, as it appears from mr. pinckney's letter to the secretary of state, "they will not acknowledge or receive another minister plenipotentiary from the united states, until after the redress of the grievances demanded of the american government, and which the french republic has a right to expect from it." we say (or rather the gentleman from virginia says in his amendment) they rejected our minister because he had not power enough; therefore, for the apology now made for the french government they were indebted to the ingenuity of the mover. now, said mr. g., i do not wish that the house of representatives should undertake to make apologies for the conduct of the french government towards this. it was true they needed apology; but he did not think it was proper for us to make it for them. further, as this apology was not made by themselves, but wholly different from their own assertions, it was not likely that they would fall into it. they say, "permit us to sell our privateers in your ports; annul treaties and repeal laws, and then we will tell you on what terms we will receive mr. pinckney, and peace from you." after this declaration, he did not think it would be proper to attempt any new apology for them. he therefore supposed, that so far as this proposition offered a new apology for the french republic, it could not meet with the approbation of the committee. the next proposition contained in the amendment was, that the house of representatives should interfere with the executive power of this country, and dictate to it what sort of steps should be taken towards reconciling the french government. he asked whether this was consonant to the principles of the constitution? whether the constitution had not delegated the power of making treaties to other branches of the government? he believed it had, and that therefore we had no right to dictate to the executive what should or what should not be done with respect to present disputes with the french government. on this ground, therefore, he considered it as improper. in the next place, the amendment contained another proposition, viz: that we rely upon a spirit of conciliation on the part of france for an accommodation of differences. and, said mr. g., do we really rely upon this? have we such evidence as should incline us to rely upon it? have the french government expressed any inclination to settle the differences subsisting between them and us? the communications which were received from the supreme executive, do not bear this complexion. the communication from the french minister to this executive does not wear it. our proclamations are called _insidious_; our minister is insulted and rejected; and attempts are made to divide the people of this country from their government. is this conciliation? does it not rather appear as if they intended to alienate the affections of the people from their government, in order to effect their own views? he was convinced it did, and that they could not rely upon a spirit of conciliation in them. for his own part, he did not rely upon it; he relied upon this country being able to convince the world that we are not a divided people; that we will not willingly abandon our government. when the french shall be convinced of this, they will not treat us with indignity. therefore, he trusted, as the proposed amendment did not contain such sentiments as were likely to accord with the feelings of the committee, that it would be rejected. mr. giles said the subject under discussion was a very important one. it appeared to him, from various documents, that all the steps taken by the executive had a view to an eventual appeal to arms, which it was his wish (as it was the wish of many in that house) to avoid. it was proper, therefore, that the clashing opinions should be discussed. if the proposition brought forward for this purpose was not sufficiently simple and explicit, he wished it might be made more so. for he believed the question to be, whether the committee be prepared to pass a vote, approving of the whole course of the conduct of the executive, or whether france should be put upon the same ground with the other belligerent powers. that she is at present upon the same footing, no gentleman had attempted to show. gentlemen who wish to get rid of this ground, say this is a thing which should be left to the executive. he thought it was, however, a proper subject for their discussion; for whatever power the executive had with respect to making of treaties, that house had the means of checking that power. suppose, said mr. g., i were on this occasion called upon to tax my land, was it not necessary i should inquire into the subject, and endeavor to avoid a measure which would probably prove a serious drain upon the blood and treasure of the country? he was unwilling to have his land taxed for the purpose of supporting a war on this principle. it was evident that the french took one ground in this dispute, and the united states another, and whilst this continued to be the case, no negotiation would have any effect. indeed, said he, it is war; and if the measure proposed was taken, we make war if we do not declare it. mr. baldwin said, he had taken the liberty to express his concern several years ago, that this custom of answering the president's speech, which was but a mere piece of public ceremony, should call up and demand expressions of opinion on all the important business of the session, while the members were yet standing with their hats in their hands, in the attitude of receiving the communications, and had not yet read or opened the papers which were the ground of their being called together. it applied very strongly in this instance, as this was a new congress, and a greater proportion than common of new members; he thought it an unfavorable attitude in which to be hurried into the very midst of things, and to anticipate business of such vast importance to the country, before they had time to attend to the information which had been submitted to them. he trusted some fit occasion would before long be found to disencumber themselves of a ceremony, new in this country, which tended only to evil and to increasing embarrassments. he observed that it was under the influence of these impressions, he had made it a rule to himself, for many sessions, to vote for those amendments and those propositions in the address which were most delphic and ambiguous, and while they were respectful to the president, left the house unpledged and open to take up the business of the session as it presented itself in its ordinary course. it was on this ground he should vote for the amendment now under consideration. mr. rutledge said, when the report of the committee should be before them, he should have some remarks to make upon it; but at present he should offer only a few observations upon the proposed amendment. he said he had strong objections to the amendment; but one so strong that he need not urge any other: it was, that in agreeing to it they should dictate to the executive, which he believed would be infringing upon the executive power. as it was his peculiar duty to give instructions to ministers, it would be improper in them to say what should be the instructions given to a minister; but if it were not so, he should not vote for those of the gentleman from virginia. in the instructions of a minister, it was usual to comprise a variety of propositions. certain things were first to be proposed; if these could not be obtained, he was instructed to come forward with something else, and if this could not be got, he went on to his ultimatum. but, if the proposition of the gentleman from virginia were to obtain, his instructions would be publicly known. in vain would it be for him to offer this or that, they will say the house of representatives has directed you what to do, and we will not agree to any thing else. this would be contrary to all diplomatic proceedings; for that reason he should be opposed to the house saying what should be his instructions. indeed, if it were usual, he should be against it in this instance, as he believed it would encourage an extravagant demand. what, said he, have they said to our minister--or rather to the person who was formerly our minister, but who then had no power? they told him to go away; they had nothing to say to him: they would receive no more ministers from the united states until their grievances were redressed. this country is charged with countenancing an inequality of treaties. the french have said, redress our grievances in a certain way. but, said mr. r., if we do this, we shall put ourselves under the dominion of a foreign power, and shall have to ask a foreign country what we shall do. this was a situation into which we must not fall without a struggle. mr. sitgreaves said, though he had wished to have taken a little more time before he had troubled the committee with his observations; yet, as there now appeared an interval, he should take the opportunity of occupying it for a few minutes. he should not answer the observations of the gentleman from georgia, with respect to the style of the answer reported; but he believed that those gentlemen who would look at it without a perverted vision, would not discover the faults in it which that gentleman had discovered. he thought it rather remarkable for the simplicity of its style than for a redundancy of epithet. he discovered more of the latter in the amendment than in the original report. it was true that the superlative was used in different places, but he thought it was used where it ought to be. he would not, however, detain the committee with matter so immaterial, but would proceed to what appeared to him of some consequence. a stranger who had come into the house during this debate, and heard what had fallen from the mover of the proposed amendment, and from members who had followed him, would have supposed, that instead of an act of ordinary course being under discussion, they had been debating the question of a declaration of war against france. he would declare, for himself at least, on the subject of war, that he agreed in certain of the sentiments of gentlemen on the other side of the house. a state of war was certainly a curse to any nation; to america it would be peculiarly a curse. it ought to be avoided by all possible means. it was not only impolitic, but madness, to run into war. but he thought there were two sides of the subject. he thought that peace was the greatest of all possible blessings; but he also thought that peace might be purchased too dearly, and war avoided at too great an expense. he thought peace might cost a greater value than money--our independence. this was no new sentiment in this country. it was thought that peace might be bought too dearly in the revolutionary war; they then thought it better to be at war than to submit to the alternative evils. france also shows that she prefers a state of war--a war carried on at an unexampled expense of blood and treasure--to a state of peace with despotism. he thought, therefore, that we should hold a language of a firm and manly tone. to preserve peace by all honorable means, but not by dishonorable means. as he observed last session, on a similar occasion, we should cultivate peace with zeal and sincerity; but whenever our intention of doing so was publicly expressed, it ought to be accompanied with an opposite assertion of a determination, if our endeavors to maintain peace fail, that then every resource of the nation shall be called into existence in support of all that is dear to us. such a declaration, at this time, was extremely proper. at present, he said, all the observations which had been made relative to war, were very premature. they might be brought into consideration, when any measure should be discussed which might lead to a war with france. then would be the time to count the cost and the benefit. at present, he conceived, our only object was, to inquire what were the feelings which the conduct of france had created in our minds, and whether we were prepared to express those feelings. shall we, said he, from a fear of irritating the french republic, in a communication with our own executive, suppress our feelings, or what is worse, suppress the truth? for his own part, he saw nothing in the present business but an expression of feelings naturally excited by the occasion; nothing but a declaration of facts. this being the case, the question was, whether, from fear of irritating the french government, they should suppress these feelings. it would be well to consider what would be the consequence of this condescension. he did not think they were warranted in believing that they should put france in a better humor with us by this means. he was sure that gentlemen who were in the last congress would recollect that the answer to the address was reported in very mild terms, from a spirit of accommodation in the committee who formed it, and that it was afterwards pruned in the house with care, yet there had been no amelioration of the disposition of the french towards this country. instead of inducing them to behave better to us, had it not been with a knowledge of this that they have offered us fresh insult and indignity? indeed, mr. pinckney suggests an idea that this moderation of ours may have been one of the operating causes of sending our minister from their country. besides, gentlemen have not pointed out the particular expressions which they consider as irritating in the report. for his own part, he thought the amendment might be considered as more irritating than the draft of the committee. what was the language of the amendment? [he read it.] he gave it as his opinion, that there was more of war and bullying in it than in the original report. it was true the threat it contained was accompanied by an _if_. now, all the difference between the draft and the amendment was, that in the former, instead of using the _if_, they had at once expressed indignation at the insults offered to this country by the french republic, and given assurances to the executive that they would repel indignity with indignation. but, said he, let us, on this occasion, confine ourselves to the real question now before us. we have been informed, said he, by the president, in his speech to both houses, of the conduct of the french towards this government, and have since received the documents upon which this report was founded. he had not yet heard any gentleman justify the conduct of the french. he had heard, indeed, some attempts to palliate or apologize for it, but none to vindicate it. his ideas of these things were, that the french had not only injured us, but added insult to injury; and while he retained this belief, he could not help feeling indignation and resentment. the question before the house was not, will we resent it? our actions, better than our words, show our desires for peace. it was a desire in which we were too much interested, to be doubted; yet it was proper that this desire should be accompanied with expressions of our feelings on the occasion. what objections could there be to this? if we were sunk so low, if our fears of the french republic are so great, that we dare not express what we feel, our situation was become really deplorable. he hoped this was not, nor ever would be the case. he hoped we should cultivate peace with sincerity, but with firmness. for if the french republic is so terrible to us, that we must crouch and sink before her; if we hold our rights at her nod, let gentlemen say so. and if we are to give up ourselves to her, let it be an act of the government; do not let us conceal under the appearance of spirit, actual submission. nations, it was true, might be brought into such a situation as to be obliged to surrender some of their rights to other nations; but when this is done, it should be done with some degree of character. let it not be done as a confession of guilt. let us, said he, however, surrender any thing, sooner than the fair fame of our country. he was not a military man, nor did he know how he should act upon such an occasion; but he knew what we ought to do. we ought, rather than submit to such indignity, to die in the last ditch. why insinuate that the government had been wrong? was it not enough to submit to injury; shall we not only receive the stripes, but kiss the rod that inflicts them? mr. otis observed, that he was so little accustomed to the mode of conducting a debate in that honorable house, that he hardly knew in what manner to apply his remarks to the subject before the committee. a specific motion had been laid on the table by the gentleman from virginia, which reduced the true question before them to a narrow compass; but the mover, in discussing his own proposition, had enlarged upon subjects dear to his mind, and familiar to his recollection. in this circuit he had been ably followed by the gentleman from south carolina, and others; so that the whole subject of the address to the president, and the reply of the committee, was brought into view, with many considerations that did not belong to it. it was his design to have remained silent until the subject had been exhausted by other gentlemen, and if any remark of an important nature had been omitted, which was not likely to have been the case, he would have suggested such ideas as might have presented themselves to his mind; but a motion having been made for the committee to rise, he would then offer a few observations, not so much for the sake of illustrating the question, which had been done most successfully, but in order to declare his sentiments upon this important occasion. he so far agreed with the gentleman from georgia, that he believed, upon ordinary occasions, an answer to the president's address should be calculated to preserve an harmonious intercourse between the different departments of government, rather than to pledge either branch of the legislature, collaterally, upon subjects that would come regularly under their consideration. but the present was not an ordinary occasion, and the situation of the country required that the answer should not be a spiritless expression of civility, but a new edition of the declaration of independence. he expressed his regret that upon this question gentlemen should have wandered into a review of measures and subjects, so frequently examined, so deliberately settled, and which had a tendency to rekindle party animosity. if they would never acquiesce in the deliberate acts of the government, because their personal sentiments had been adverse to them in the season of their discussion, there could be no end to controversy. for his part he conceived that all party distinctions ought now to cease; and that the house was now called by a warning voice, to destroy the idea of a geographical division of sentiment and interest existing among the people. his constituents and himself were disposed to regard the inhabitants of the southern states as brothers, whose features were cast in the same mould, and who had waded through the same troubled waters to the shore of liberty and independence. he hoped that gentlemen would, in their turn, think the other part of the union entitled to some consideration. the address of the president disclosed, for the contemplation of the committee, a narrative of facts, and of the existing causes of controversy between the french republic and ourselves; the overtures for reconciliation, which were to be repeated by attempts to negotiate, and the measures of defence that might be proper, in case negotiation should fail. the injuries sustained by us were of a high and atrocious nature, consisting in the capture of our vessels, depredations upon the property and persons of our citizens, the indignity offered to our minister; but what was more aggravating than the rest, was, the professed determination not to receive our minister until the complaints of the french should be redressed, without explanation and without exception--until we should violate treaties, repeal laws, and do what the constitution would not authorize, vacate solemn judgments of our courts of law. these injuries should not be concealed. he did not wish, however, to indulge in unnecessary expressions of indignation, but to state in plain and unequivocal terms the remonstrances of injured friendship. if any man doubted of the pernicious effects of the measures of the french nation, and of the actual state of our commerce, let him inquire of the ruined and unfortunate merchant, harassed with persecutions on account of the revenue, which he so long and patiently toiled to support. if any doubted of its effects upon agriculture, let him inquire of the farmer whose produce is falling and will be exposed to perish in his barns. where, said he, are your sailors? listen to the passing gale of the ocean, and you will hear their groans issuing from french prison-ships. such were the injuries, and such the requisitions of the french nation; and he defied the ingenuity of any gentleman to draw a comparison between the directory and the british parliament, in favor of the former; and insisted that the demands of charles delacroix were upon a parallel with those of lord north. he enlarged upon the analogy of the circumstances attending the pretensions of the british government to bind us, when we were colonies, and of the french to subjugate us, now we are free and independent states. he thought it expedient to cultivate the same spirit of union, and to use the same firm and decided language. he regretted that questions should be agitated upon this occasion, which had been formerly the cause of party spirit and dissensions; and did not believe that the immortal men who framed the noted instrument which dissolved the charm of allegiance and shivered the fetters of tyranny, condescended to differ about verbal criticisms and nice expressions, through fear of giving offence; nor that it was incumbent upon the members of the committee to repress the assertion of their rights, or smother a just and dignified expression of their susceptibility of insult, because the french had been once our friends, or because the commencement of their revolution was a struggle for liberty. there was a time when he was animated with enthusiasm in favor of the french revolution, and he cherished it, while civil liberty appeared to be the object; but he now considered that revolution as completely achieved, and that the war was continued, not for liberty, but for conquest and aggrandizement, to which he did not believe it the interest of this country to contribute. wednesday, may . william smith, from pinckney district, south carolina; samuel smith, from maryland; john allen, from connecticut; and william findlay, from pennsylvania, appeared, produced their credentials, were qualified, and took their seats. _answer to president's speech._ the house again went into committee of the whole on the answer to the president's speech, and mr. nicholas' amendment being under consideration, mr. swanwick opened the debate. he lamented the loss of time which was generally experienced at the opening of every session in debating the answer to the speech of the president, when, perhaps, business of the first moment called for immediate attention. it was much to be wished that committees appointed for this purpose would confine themselves to the instructions which were given to them on the occasion, which were in general terms, viz: "to prepare a respectful address, assuring the president that the house will take into their serious consideration the various important matters recommended to their attention." if answers were drawn in general terms, conformably to these instructions, he thought very many of the embarrassments which they now experienced would be avoided, and every member would be left at liberty to pursue such measures as appeared to them right, when they came before him in the ordinary course of business unclogged by any creed which he might have been called to assent to before he had an opportunity of considering the subjects it contained. it also often occasioned much warmth in debate, and served to divide the house into two parties on the very threshold of their business. this could not possibly have any good effect, but the contrary; he should therefore be happy to see the practice simplified or abolished altogether. the effect at present has been, that no sooner had the committee appointed to draft an address made a report, than the gentleman from virginia proposed a substitute, which, according to his idea, was more proper. a warm debate had taken place, and he believed that either might be adopted without effect, as they were merely a form of words leading to no conclusion. suppose a majority of _one_ was obtained on the report, what end would be produced? none; for it might be that the very persons who voted on this general question, might vote against particular subjects when they came under consideration; as every one would recollect the difficulties which had been experienced in getting three frigates built, and this difficulty, he doubted not, would again occur. since, however, these two forms of an answer were before them, and they were called upon to say which they would adopt, it might be proper to go into some consideration of the subject. the difference between the two productions seemed to be, that the one reported seemed to express great indignity on account of the injuries received from the french republic, and a determination to repel them; that produced by the gentleman from virginia was of a more conciliatory tone, recommending to the president to begin his negotiations with placing the french republic on the same ground with the other belligerent powers; so that the difference was simply as it respected a few words. what were the arguments in favor of the warm tone? they were told it would have a great effect on the french republic, because if a spirited answer were given to the president's communication, signifying (as his colleague mr. sitgreaves had strongly expressed it) that we were determined to _die in the last ditch_, it would strike them with terror. if he thought this effect could be really produced, it might be some inducement for him to agree to it. mr. s. remarked, that they were told by mr. pinckney, in his letter to the secretary of state, that it was probable that two events had contributed to his dismissal from the french republic, viz: one, the victories of bonaparte in italy, the other, the addresses of the senate and house of representatives in answer to the speech of the president at the last session. with respect to the answers alluded to, no opinion could be formed from this assertion, because, though that of the house of representatives was tolerably moderate, yet that of the senate was as warm as any thing could be produced. he read extracts from both, and compared them with each other, giving the credit which, in his opinion, was due to the most moderate. the first and most necessary step to be taken was, to put all the belligerent powers upon the same footing, which could not be an offence to any. but it was said that to recommend this measure to the executive, was to dictate to him; that it was carrying humility on the front of the minister who should be employed. what! said mr. s., would it be to carry humility in his front to say, "i come to place you on the same footing with the most favored nation?" it certainly could not; since it was the language of right reason, of justice. as to dictating to the executive, could it be called dictating when we merely express our opinion and advice to him, on points which he has himself laid before us; and, in order to deliberate on which we were thus unusually called together? very low and debasing, indeed, must be the situation of this house, if they were to be muzzled and prevented from laying their sentiments before the chief magistrate of the union! when treaties are made, we are told they are laws over which we have no power. if we dare not speak on the subject before they are made, is this house reduced merely to the odious task of laying taxes, without being allowed to exercise its sense on any other public measures connected with them? why does the president communicate these things to us, if we are not allowed to express any sentiments about them? why do the people elect their representatives all over this widely extended empire, if, when they are convened, they are not allowed the privilege of expressing their opinions on the dearest interests of their constituents? but it is stated that this will create division among the branches of the government, who ought always to act and think alike. were this the case, there was no use to divide the government, as our constitution does, into three branches; they might all have been left in one, and then no accident of this kind would have happened; but the fact is, this very division of the branches was devised in order that they might operate as checks on each other. the people thought it better that a division of this kind should prevent acting at all, than that we should act hastily and unadvisedly. thus when a law, after mature deliberation, passes this house as wise and good, the senate were not obliged on this account to see it in the same light; they judge for themselves, and, if they see cause, reject it, and no complaint takes place on our part because they do so. in another government, indeed that of england, all the branches have been contrived into the most perfect union, kings, lords, and commons, all agree, but has the government been the better for this? happy had it been for that nation, had this not been the case. many an unwise measure they have gone into, might then, fortunately for the nation, have been totally prevented. but it has been said we ought to express the highest indignation at the conduct of france. let us examine for a moment on what this is founded. three grounds have been mentioned; the dismission of our minister, the spoliations on our ships, and the interference with our government, in attempting to divide the people from it. as to the first, the dismission of our minister, said mr. s., nobody can feel more sensibly than i do, this indignity; but it only leads me to regret, as i have often already expressed my regrets, at our sending so many diplomatic gentlemen to europe. wretched will be our case, if we are embroiled whenever these gentlemen shall be refused, or uncivilly treated. all history is full of instances of wars, founded on such points of etiquette as these, and they admonish us against employing embassies, as much as possible, to avoid these dangers from our foreign connections. but it seems, the directory, by mr. pinckney's letter, at the same time sent away thirteen other foreign ministers; yet we do not hear that these nations went to war on this account. one of them was sweden, a very powerful maritime nation, possessed of a considerable fleet; her minister was dismissed; she contented herself with sending away the french minister also, and here the dispute ended. but, surely allowance ought also to be made for the present revolutionary state of france. if all things do not proceed there with the order they ought, it is perhaps because of their present warlike and revolutionary position, which cannot but mend every day, and should induce us to make some allowance for them. mr. livingston said that, having listened to the gentlemen who had preceded him with the most respectful attention, and heard their ardent expressions of patriotism and the lively sense which they entertained of the true dignity of our government, he should not attempt to follow them into a field which had been exhausted, but would leave it to the consideration of the committee and his country to determine upon his sentiments and the measures which he should suggest whether he was not equally disposed with others to promote the peace and honor, the happiness and security of his country and government; he would leave it for his measures to speak for him; he would not be led away by any idle or extraneous vanity from objects so solemn and important; he should speak freely as became an american at a crisis so very pressing. first, then, he should notice the address that was before the committee, and the amendment which had been proposed to be made to it; he was sorry to observe the manner in which they had been discussed. it had been considered, on one side, that to adopt any language in reply to the address but that which has been laid before the committee in the report, would amount to a surrender of all our rights, privileges, and independence, as a nation, to france; on the other, it has been held that the differences between us and france are distorted, and that we should at least not shut up every avenue to negotiation by an obstinate and blind assertion of our own infallibility. if he believed with those of the former opinion, that we should in any shape incur the stigma of degrading ourselves, or if he suspected even that we should sacrifice one right of our country or government by an adoption of the amendment proposed, or he thought we should not endanger our national character and safety by the adoption of the report, he should most certainly reject the amendment and adopt the report; or if he believed, with the gentleman from massachusetts, (mr. otis,) that the demands of france now were any wise analogous to those of great britain on a former occasion, sooner than consent to a dereliction of independence and national character he would not stop short of the language of that report; but as he could not force his judgment to so outrageous a misconstruction, as he saw on the contrary numerous reasons to entertain a very different opinion, he would not consent to incur the perils and the errors in which that report would involve us; he could not consent to so hasty, so precipitate, and inconsiderate a step. the question properly before the house at this time is, whether we shall continue to express so perfect a reliance on all the acts of our own government; whether we shall say obstinately to france that there is no possible case in which our judgment could have been misled or mistaken in our conduct towards her; and, by determining to adhere to our former conduct, preclude every possibility to an amicable adjustment; or leave a reasonable opportunity open for an effectual discussion and adjustment of differences, wherever they may subsist. the scope of the speech of the president to both houses, it must be confessed, goes to bind us to the former conduct; and it is too evident that the report, in strict coincidence with the sentiments of several, but not all its supporters, bears that same dangerous tendency. from which line of conduct are we to expect the most beneficent issue, to treat with a complaining power by a determination to show that its complaints are groundless, or by examining the complaints and the evidence in amicable negotiation and deciding afterwards? let us examine the complaints of france, and then determine whether they are all so frivolous as to excite irritation at the mere mention of them; unless we are so convinced, unless we are thoroughly satisfied that they are so, we cannot vote the answer as it is reported. should we discover in such an examination that some of our measures have been founded at least in mistake, would it then be proper to adopt the language of the address? but should we persist under such a possibility of mistake, what do we risk? an evil much more fatal than the worst that could follow the most sober resolution which we can now adopt; we risk the alternative of abandoning it after a war in which we may be sufferers, and after we may have retarded the increasing prosperity of our country half an age. we have an example before us in a nation that was eager to snatch at a remote pretext for an assumed interference in her government; we have seen that nation, among the most powerful and haughty in europe, the most vain of her dignity, (real or unreal,) the most apt to interfere in the government of others; we have seen her enter into a war, and we have seen her driven to the lowest state of humiliation; we have seen her obliged to pursue the most abject means of solicitation to obtain a peace from that very nation whom she had irritated to a war; and we saw her more humiliated still, by the rejection of those propositions which she had made to obtain peace. have we a better prospect than that nation? are our means equal to hers? are we, indeed, ready to embark in a war--with france, too--and present such a lesson to the world as america at war with france, after france has defeated the efforts of all the world? he again asked, have we the means? let gentlemen who are willing to plunge us into that dilemma make the reply; but let not gentlemen indulge in so hateful a picture. but, although we have no means, he was still against surrendering the honor of our country; fortunately, no such sacrifice is demanded, no such measure is necessary; and were we ten times more destitute even than we are, he should never submit to our national degradation, were there a power so insolent as to expect it. it was, he knew, a very ungracious, and often an unpopular task, to display the errors of our own government; there was a national vanity, a vain and unmeaning pride, which sought to be bolstered up by frippery of words and acts of dissimulation. he knew that this empty and pernicious vanity often assumed the post and place of the true dignity of a country, and blinked contumely on him that was disposed to prefer the plain, frank, open path of integrity and truth. he would choose between these opposite passions of a nation, and preferring his duty to unmerited reproach, he would neither repress the sentiments of his mind, nor foster those which he conceived to be pregnant with ruin; he would glory more in promoting the justice of his country than in conducting her to the most brilliant triumphs in an unjust cause; he would, therefore, calmly examine whether france had just cause of complaint; and whether she had or not a just cause, he would assert that france might, without exciting indignation, think herself injured; that she might, was a sufficient reason with him for preferring the amendment, as it left an opening for rather amicable discussion and accommodation, rather than the report which had the opposite character. thursday, may . mr. giles rose.--he said that he had always been against this form of giving answers, since the time the practice first began; it was derived from the british house of commons, which was a bad source for precedents. in that house, however, the speech and the answer were both known to be the work of the minister, and treated with great freedom. mr. g. thought that it would be better to direct the committee of rules and orders of the house, to make one standing answer, which would serve regularly for all speeches. this would be an improper time for such a regulation, but though we could not now get rid of a bad habit, it was not necessary to vindicate it. he said, that mr. livingston had yesterday taken part of the ground which he intended to take. the question before the house amounted to this: shall we recommend it to the president to place all nations on a level as to commerce, and to remove the inequalities between them? to assist him in deciding this point, he would refer to facts and dates; and, as he did not wish to represent things in false colors, he would be glad to be corrected, if he should happen to go wrong. he would begin at the st of february, , when england dismissed the french minister, and the republic, in consequence, declared war against her. on the d of april following, the president declared this country to be in a state of neutrality, and warned the citizens to observe it. at this time, about the th may, m. genet landed and raised a considerable alarm by commencing an improper correspondence with our citizens. government from that time took a wrong impression, and acted under the idea of a dangerous french influence in this country. all this was a mistake. genet was universally reprobated, unless by a few disorderly people, and government from that trial should have learned to trust us. in consequence of the disturbance that genet made, many societies entered into resolutions to support government. even the pulpit reviled genet. if execration, disappointment, and contempt, could fill up the measure of punishment, he had it. from the arrival of genet to that of fauchet, some sentiments were kept alive, and some phrases that he would review. the _friends of order_ and the _disorganizers_ were two of them. then we had the reign of _moderation_, but of so frantic a kind, for the short time which it lasted, as to exercise the greatest of despotism over opinion. this _order_, _moderation_, and _disorganization_, were all gone and no more said about them. among mr. g.'s constituents, when notice came of the western insurrection, they were all ready to march in support of government; instead of calling themselves the friends of order, they proved that they were so. the country remained from this time in a tranquil state till the arrival of mr. jay's treaty. on the th of december, , a message was received from the president, speaking of france in the most friendly terms. in spite of genet's quarrel there was no misunderstanding with the republic, and mr. g. quoted this circumstance to prove that there was no serious difference till the arrival of mr. jay's treaty. mr. g. said that he would review what was in the mean time passing in europe. during the summer of , britain made no less than six treaties with different nations, and one stipulation in each of them was that the contracting parties should stop all provisions going to france, and force all other nations to do so. the first of these treaties was made with russia, on the th of march, : the second was with spain; the third with prussia; the fourth with the emperor; the fifth with portugal; and the last with the king of the two sicilies. it was said that france preceded britain in the order for stopping provisions; britain did not publicly issue such orders until the th of june, ; but britain had, in reality, adopted the practice long before. the french orders fluctuated; but, at one time, the united states were exempted from stoppage, when others were stopped. he then noticed the stoppage of provisions to the west indies; the orders of the th of november, , and the th of january, . in the very short interval between these two dates, france had gone on so fast that britain found it better to ameliorate the condition of neutral states. during this time, england also made a truce for portugal with algiers, and this truce has cost us fifteen hundred thousand dollars, besides what it may cost hereafter. timber had been promised to be cut for the algerines, of a kind which this country could not furnish in due quality. some of it was to be brought so far as from the north-west branch of the susquehanna. he would pass over lord dorchester's speech to the indians, and the british soldiers and savages joining the tomahawk against our western frontiers. he mentioned these things, merely to keep them in view. there was something, he said, which he could never think of without surprise. this was a conversation between lord grenville and mr. pinckney. it was related in a letter, dated the th of january, , from mr. pinckney. it took notice of lord grenville telling mr. pinckney the desire which the british government had of maintaining harmony with the united states, and their readiness to support the government of this country against a dangerous jacobin faction who wanted to overturn it. mr. g. said, that this betrayed more interference on the part of britain than there ever had been on the part of france. from this time our government had taken a leaning towards britain. french influence was only a sentiment which we felt for the sake of liberty, but which was sometimes conjured up as a chimera to serve certain purposes. the united states had a real interest in cherishing the sentiment, which never could be dangerous. as for british influence, it was a matter much more substantial. that people speak the same language with us, are scattered from one end of the continent to the other, intermarry with us, and have a very great commercial intercourse. lord grenville's proposition had led to mr. jay's treaty. as to france trying to engage us in the war, any other nation in the world would be glad to do so. france had addressed the people of america, and was resisted: britain had addressed our government; and mr. g. feared that the latter had not made so firm a stand. while congress were taking proper measures to check the depredations, mr. jay, to the astonishment of mankind, was named ambassador to england. the treaty was signed on the th of november, . the instructions, mr. g. had never seen, but if we may judge from the treaty itself, they were extremely full. for the making of such a treaty he had never heard a reason, nor had he ever been able to learn one good consequence likely to accrue from it. it had been called an instrument of peace, and its first effect was, that we were summoned to fight with france, spain, and holland. one of the articles was that free ships do not make free goods. this was highly injurious both to france and the united states; it implied a breach of the law of nations, because, before you can search for an enemy's goods you must stop neutral ships. this regulation could only be understood as operating against france. if we could not help the practice going on, we should at least have suffered it to stand as it was, without any countenance. all the principal articles of export from the united states were declared contraband, except tobacco, and, indeed, that might be included under the general title of provisions, as people would sometimes be in want of a chew. he spoke of this provision clause as infamous. he referred to count bernstoff, minister of denmark, who had kept his country in a more honorable situation than perhaps any other in europe had done during the present war. mr. g. read the refusal of count bernstoff to comply with the british requisition to that effect. during the armed neutrality, the united states had owned that free bottoms should make free goods. was there any reason since to alter our opinion? he would be glad to hear gentlemen answer if there was any. he had always said that the provision article was unjust to france, and yet on account of the british treaty we are to plunge into a war before we know whether we are in the right or in the wrong. gentlemen who had promoted the british treaty now came forward to support it, but it would now be more manly to declare at once that we cannot do so. in citizen adet's complaints, many articles were unjust and trifling, but this was always the case in productions of that sort. mr. g. then referred to the speech of barras: he said that britain still went on robbing and impressing american seamen. mr. harper had yesterday said that the impressments were few; but how were we to be certain of that? the men are not allowed to write to us, and mr. pinckney informs us that vast numbers of them are in french jails. he had always wondered at our having so few communications on this head from the executive. a law had passed in this house and in the senate upon this subject, without any information from that quarter. gentlemen had allowed that it would be just enough to grant an equality of privileges to every foreign nation; but, mr. harper had objected, that if this were granted to france, she would still continue to demand. when she makes an unjust claim, said mr. g., we should stop; he would not be for going any further. the french had not acted on vague claims; they take neutral and contraband articles; they take the ships, and when they find our seamen on board of british vessels, they threaten to treat them as pirates, and will not allow them to prove that they were impressed. tuesday, may . john fowler, from kentucky, appeared, produced his credentials, was qualified, and took his seat. _answer to president's speech._ the house again resolved itself into a committee of the whole, on the address reported in answer to the speech of the president of the united states; when mr. coit said he thought that part of the th paragraph which related to the executive directory would be less exceptionable, and equally convey their disapprobation of such sentiments, if it were expressed more generally, and without any allusion to m. barras. he proposed, therefore, to strike out from "at," in the th line of the th paragraph, to "united states," in the th line, and to insert "any sentiments tending to derogate from that confidence; such sentiments, wherever entertained, serve to evince an imperfect knowledge of the real opinion of our constituents." mr. w. smith objected to the amendment of the gentleman from connecticut, (mr. coit,) because it was hypothetical. he wished, as the fact was clearly established, to have a direct reference to the speech of barras, in their indignation at the sentiments. as the matter had appeared of sufficient importance to find a place in the president's speech, he thought it was also worthy of their notice. he insisted upon its being an attempt to divide the people of this country from their government, by speaking insultingly of the latter, and flattering the former. he did not exactly know what was meant by the "suggestion of our former tyrants," but he supposed it meant bribery, and that by "perfidious people," general washington was included. mr. w. smith said, that by the government, the executive only was meant. he was convinced of this from the manner in which he had seen the word used in the french government paper, entitled the _redacteur_. mr. coit believed, that whatever m. barras had said, it was not worth their attention. we might defy france or frenchmen to say worse of us than they themselves said. he did not himself know how far the speech of barras was an act of government; for, said he, when we directed our speaker to reprimand randal and whitney, the words he used upon the occasion were not an act of the house. on another occasion, when the house were about to receive the french flag, they could not call what was said by the speaker on that occasion, an act of the house. mr. williams said, if mr. pinckney's letter was an authentic paper, the speech of barras was likewise so; and if so, it was doubtless an indignity to government. he did not think with the gentleman from massachusetts, (mr. freeman,) that it was "childish gasconade." he believed it was intended as an insult to the government of this country. as to the gratitude which had been said to belong to the french nation, for their assistance in the war, he thought their services were amply repaid by the separation of this country from great britain. besides, he added, the french never came to the assistance of this country until they saw we were likely to be successful in our struggle. mr. gordon said there could be no doubt of the authenticity of barras' speech, since it stood upon the same ground as the rest of the documents. it was a flagrant insult upon government, in his opinion, and warranted all that had been said upon it, as it was doubtless an attempt to separate the people from the government. mr. thatcher said the question was, whether or not any notice should be taken of the insulting speech of barras. when, said he, the french flag was presented to this house, we were told we were not to stop to reason, but to express forthwith our feelings of affection. but now, when the most unexampled insult is offered us, such as one man would not receive from another, we are not to notice it at all, lest it should offend the french republic. he knew of only one reason for passing it over in silence, and that, it was true, had some weight with him. that barras spoke as the organ of the french nation, there could be no doubt; but he had his doubts whether he knew himself what he said. the speech had strong marks of _delirium_, and he could not help believing that, when he delivered it, he was either _drunk_ or _mad_. if the world went on for six thousand years to come, they would never again behold such a production. mr. mcdowell was in favor of the amendment. he did not think himself bound, as had been insinuated by the gentleman from south carolina, to echo all the sentiments in the president's speech. he wished to have an opinion of his own. he agreed that barras' speech was an indignity to the united states. he felt it, and would express it: but he did not think this the proper time. he denied the justness of the construction put upon the speech by the gentleman from south carolina. he supposed by "perfidious persons," was meant the persons in this country, generally called the "british faction." he differed in opinion also with that gentleman on the subject of dividing the people and government, and could not allow that the phrase "good people" was intended as an insult. he allowed it was going too far to say that we owed our liberty to france; but being in some respect true, it took off from the offence. he was sorry to see on one side of the house constant attempts made to excite the resentment of the people of this country against france. it was not necessary at present to raise such feelings. they were not about to unsheath the sword, and to say, "we conquer or die." what gentlemen could not effect by reason, they seemed inclined to effect in a different way. he did not think this fair conduct. mr. venable supported the amendment. he did not think any of the objections made against it had much weight in them. he thought the mode of expressing our sense of the indignity shown to this country by the speech in question, was judiciously chosen by the gentleman from connecticut. it was most consistent with dignity. it was not wise in them to take notice of every harsh expression which might be used against this country in any foreign nation; for, if such were our conduct, foreign nations would have good ground of complaint against us, and on that floor the account would be settled. nor did he think it very becoming or dignified in gentlemen in that house so to express themselves as to excite frequent risibility; nor was it very honorable to that assembly. [alluding to the gentleman from massachusetts.] mr. sitgreaves had no doubt of the speech of barras being an official paper, and that its object was to divide the people from the government. if he proved this, he trusted the language of the report would be preserved. it would be allowed that barras was the mouth of the directory, and that the sentiments which he speaks, are not his own, but what were beforehand agreed upon. it was doubtless, therefore, a solemn official act. with respect to the observation of the gentleman from virginia, that what he said respecting our government was not applicable to the executive, but to the people at large, he believed he was wholly mistaken, as the word government, in the french language, constantly meant executive, as was abundantly clear from the way in which it was used in mr. adet's notes. [he quoted a number of passages to prove his assertion.] it was generally used for the executive in contradistinction to congress, or any other of the constituted authorities. if it were clearly intended to convey an insult upon our executive, (and there could be no doubt of it,) even the mover of the amendment could not think it unbecoming in that house to express themselves in the words of the address. mr. gallatin said, whatever might be the insult intended by the speech of the executive directory, he thought it best to notice it in general terms as it was the sentiment which was objectionable and not the government of france. but as so much had been said about government and people, he would say, that an insult offered to the people could not be less offensive than one offered to the government. he supposed they alluded to the british treaty, which was as much the instrument of congress as of the executive, and of the people as either, since they very generally petitioned in favor of it. he then took notice of the perversions which the gentleman from south carolina had put upon the words of barras, and denied that there was the least ground for them, and said that the _gazette of the united states_ might as well be called a government paper of this country, as the _redacteur_, that of france. if, said mr. g., it be our intention to declare war at once, then there might be some propriety in taking hold of every word which would bear to be construed into an insult, but if we wished for peace, it was unwise to do so. besides, he said, this speech was not communicated in an official manner, nor could it be so communicated. it was sent by mr. pinckney in a newspaper, from which the copy sent to them was translated, but the translation was not even authenticated, as usual. he did not dispute the fact, but it was a thing which they were not bound to notice; indeed, an error with respect to a name appeared on the face of the paper; and being delivered to mr. monroe, who was no longer minister, it could not be officially communicated. he therefore thought it was not worth their notice. mr. otis thought it right to pay respect to what was recommended by the president. the question was whether they should notice the insult generally, or in reference to the directory. he was in favor of the first; but as this was the only opportunity given in the address of expressing their opinion of the conduct of the french government, he wished the address to stand as reported. mr. o. remarked upon barras' speech. he did not know what was meant by granting peace. when parties were at war, one granted the other peace; or sometimes a stronger power suffered a weaker to be at peace. he supposed the french meant it in the latter sense towards this country. on condition that we respect her sovereignty! what was meant here? if it was sovereignty over their own nation, we had nothing to do with it; if it was any other, it must be the sovereignty they had over us. he concluded by remarking, that if there were any members in that house upon whom any imputation could rest of their being unduly attached to the french cause, he thought it a good opportunity to come forward and convince the world that the charges were unjust. mr. livingston took notice of what had fallen from the gentleman last up, and showed the folly of adopting an irritating tone; as, if we charged a foreign government with making use of one disrespectful expression, they would have no difficulty in retorting the complaint, as in the course of that debate, the gentleman from south carolina (mr. harper) had called the king of spain the humble vassal of france, and had not been sparing of his epithets to other powers; and the gentleman from massachusetts (mr. thatcher) had termed barras drunk or mad. he also noticed the constructions put upon the words "granting peace," and "sovereignty," as very extravagant. the speech, he allowed, was bad enough, but he saw no reason for torturing it in this manner. mr. giles said the gentleman from massachusetts had called upon persons who might lie under imputation of being friends to france, to come forward, and show the imputation false. he informed that gentleman that he did not feel his reputation hurt by any imputation which he or any other person might throw upon him. he would rather the gentleman would convince them they were wrong, than call them names. mr. otis explained. he declared he meant only to say that they had been unjustly charged with those imputations, and that such a conduct would show it. mr. w. smith again urged the propriety of retaining the words in the address as reported, as the amendment proposed had no reference to the president's speech, as that referred to an official act; whereas the amendment had no relation to france, but would apply to the people of china, or the people of this country, as well as to those of france. he believed the discussion had been of some use, because it was now on all sides acknowledged that the speech of barras was an insult, which was not allowed at the beginning of the debate. he could only say that gentlemen died hard; to use the expression of his friend from pennsylvania, (mr. sitgreaves,) they seem determined to _die in the last ditch_. the objections to the words of the present address, were like the objections of _thomas paine_ to the writings of moses. he denied that there was any similarity between expressions used in debate in that house, and expressions used by an executive authority. no notice, he said, ought to be taken of what fell from members in that house, whilst they were allowed to be in order; and if foreign ministers attended to hear their debates, and heard things which they did not like, they ought not to take exceptions at it, since they came there uninvited, and it was their duty to say what appeared to them right at the time. the question was put on the amendment, when there appeared votes for it, and against it. the chairman declared it carried in the affirmative. wednesday, may . _answer to the president's speech._ the house again resolved itself into a committee of the whole on the answer to the president's speech, mr. dayton's amendment being under consideration. mr. hartley was persuaded there was but one wish in the house with respect to peace, notwithstanding insinuations to the contrary; but he could not agree with the proposed amendment, as he wished the negotiation to be left wholly to the president. the treaty entered into with france provided for their being placed on the same footing with other nations, and wished that right to be recognized by negotiation, and he doubted not the president would do it; for as he must see that peace was the desire of all, he would take such steps as would be best calculated to lead to it. he was against encroachments on the executive, as, if they once begun, there was no knowing where they could stop. he thought there was no danger of war; it would be a disagreeable thing for men who fought in the revolutionary war, to be obliged to unsheathe their swords against france; but he trusted before they rose, means would be taken for putting the country into a state of defence. the question was then taken on the address as amended, and resolved in the affirmative--yeas , nays , as follows: yeas--john allen, george baer, jr., abraham baldwin, david bard, james a. bayard, theophilus bradbury, david brooks, john chapman, christopher g. champlin, james cochran, joshua coit, william craik, samuel w. dana, james davenport, john dennis, george dent, george ege, thomas evans, abiel foster, dwight foster, jonathan freeman, nathaniel freeman, jr., albert gallatin, henry glenn, chauncey goodrich, william gordon, roger griswold, william b. grove, john a. hanna, robert goodloe harper, carter b. harrison, thomas hartley, william hindman, david holmes, hezekiah l. hosmer, james h. imlay, john wilkes kittera, samuel lyman, james machir, john milledge, daniel morgan, john nicholas, harrison g. otis, elisha r. potter, john read, john rutledge, jr., james schureman, samuel sewall, william shepard, thompson j. skinner, thomas sinnickson, jeremiah smith, nathaniel smith, samuel smith, william smith, (of charleston,) george thatcher, richard thomas, mark thomson, abram trigg, john e. van allen, peleg wadsworth, and john williams. nays--thomas blount, richard brent, nathan bryan, samuel j. cabell, thomas claiborne, matthew clay, john clopton, thomas t. davis, john dawson, lucas elmendorph, william findlay, john fowler, william b. giles, james gillespie, andrew gregg, jonathan n. havens, walter jones, edward livingston, matthew locke, matthew lyon, nathaniel macon, blair m'clenachan, joseph mcdowell, anthony new, josiah parker, samuel sitgreaves, william smith (of pinckney district), richard sprigg, jr., richard stanford, thomas sumter, john swanwick, john trigg, philip van cortlandt, joseph b. varnum, abraham venable, and robert williams. _resolved_, that mr. speaker, attended by the house, do present the said address; and that mr. venable, mr. kittera, and mr. nathaniel freeman, jr., be a committee to wait on the president, to know when and where it will be convenient for him to receive the same. and then the house adjourned. saturday, june . a report was received from the commissioners of the federal city, which was ordered to be printed. _answer to the president's speech._ mr. venable, from the committee appointed to wait on the president of the united states, to know when and where it will be convenient for him to receive the address of this house, in answer to his speech to both houses of congress, reported that the committee had, according to order, waited on the president, who signified to them that it would be convenient to him to receive the said address, at twelve o'clock this day, at his own house. mr. lyon said he yesterday voted against the appointment of a committee to wait upon the president to know when and where he would receive their address, because he believed the president should always be ready to receive important communications. he wished to make a motion, which was, "that such members as do not choose to attend upon the president to present the answer to his speech, shall be excused." he wished to be understood. he thought the motion a reasonable one, because it proposed to leave them at liberty to do as they pleased. and by the rules he saw, he was obliged to attend, except sick, or leave of absence was obtained; now, as he hoped not to be sick, he wished to put himself out of the power of the sergeant-at-arms, if he did not attend. he had been told he might stay behind without being noticed; but this was not enough for him, as he was a timid man, and the house had the law on their side, as he recollected something of a reprimand which had been given to mr. whitney. [the speaker reminded him it was out of order to censure the proceedings of the house on any former occasion.] he said he stood corrected, and proceeded. he had spoken, he said, to both sides of the house (_as they were called_) on the subject. one side dissuaded him from his motion, and laughed at it; the other side did not wish to join him in it, because it would look like disrespect to the person lately elected, who was not a man of their choice; but he trusted our magnanimous president would, with the enlightened yeomanry of america, despise such a boyish piece of business. this, he said, was no new subject with him, he had long heard the folly of the wise made a matter of wonder in this respect. it was said this was not the time to abolish the custom; but this was the cant used against every kind of reform. no better time could ever arrive, he said, than this, which was the threshold of a new presidency, at a time when the man elected to the office was beloved and revered by his fellow-citizens; he was as yet unused to vain adulation; he had spent a great part of his life amongst a people whose love of a plainness of manner forbids all pageantry; he would be glad to see the custom done away. were he acting in his own personal character, he perhaps might conform to the idle usage, but acting as he was for eighty thousand people, every father of a family in his district would condemn him for such an act. mr. blount said he had seconded the motion of the gentleman from vermont, in order to give him an opportunity of stating his reasons for making it, and not from any desire to rescind the rule. mr. dana observed that the house would not wish to do violence to the gentleman's feelings. it was true some of the most respectable men in the united states had waited upon the president in a similar way, yet, if the gentleman thought it would not comport with his own dignity to do it, he hoped he would be excused. the motion was put, and carried unanimously. the speaker informed the house the hour was arrived at which the president had appointed to receive them. mr. macon moved that the house do now adjourn. he should wait upon the president; but it seemed to be understood that members were obliged to go. he thought, however the power of the house might extend to bringing a member into the house, there was no power to carry him out. the motion was negatived without a division. the house then withdrew, and waited upon the president of the united states with the following address: _to the president of the united states_: sir, the interesting detail of those events which have rendered the convention of congress, at this time, indispensable, (communicated in your speech to both houses,) has excited in us the strongest emotions. whilst we regret the occasion, we cannot omit to testify our approbation of the measure, and to pledge ourselves that no considerations of private inconvenience shall prevent, on our part, a faithful discharge of the duties to which we are called. we have constantly hoped that the nations of europe, whilst desolated by foreign wars, or convulsed by intestine divisions, would have left the united states to enjoy that peace and tranquillity to which the impartial conduct of our government has entitled us; and it is now, with extreme regret, we find the measures of the french republic tending to endanger a situation so desirable and interesting to our country. upon this occasion we feel it our duty to express, in the most explicit manner, the sensations which the present crisis has excited, and to assure you of our zealous co-operation in those measures which may appear necessary for our security or peace. although it is the earnest wish of our hearts that peace may be maintained with the french republic, and with all the world, yet we will never surrender those rights which belong to us as a nation; and whilst we view with satisfaction the wisdom, dignity, and moderation, which have marked the measures of the supreme executive of our country, in its attempts to remove, by candid explanations, the complaints and jealousies of france, we feel the full force of that indignity which has been offered our country in the rejection of its minister. no attempts to wound our rights as a sovereign state will escape the notice of our constituents; they will be felt with indignation, and repelled with that decision which shall convince the world that we are not a degraded people, that we can never submit to the demands of a foreign power without examination and without discussion. knowing as we do the confidence reposed by the people of the united states in their government, we cannot hesitate in expressing our indignation at any sentiments tending to derogate from that confidence. such sentiments, wherever entertained, served to evince an imperfect knowledge of the opinions of our constituents. an attempt to separate the people of the united states from their government, is an attempt to separate them from themselves; and although foreigners, who know not the genius of our country, may have conceived the project, and foreign emissaries may attempt the execution, yet the united efforts of our fellow-citizens will convince the world of its impracticability. sensibly as we feel the wound which has been inflicted by the transactions disclosed in your communications, yet we think with you, that neither the honor nor the interest of the united states forbid the repetition of advances for preserving peace. we, therefore, receive with the utmost satisfaction your information that a fresh attempt at negotiation will be instituted; and we cherish the hope that a mutual spirit of conciliation, and a disposition on the part of france to compensate for any injuries which may have been committed upon our neutral rights; and, on the part of the united states, to place france on grounds similar to those of other countries in their relation and connection with us, if any inequalities shall be found to exist, will produce an accommodation compatible with the engagements, rights, duties and honor of the united states. fully, however, impressed with the uncertainty of the result, we shall prepare to meet with fortitude any unfavorable events which may occur, and to extricate ourselves from their consequences with all the skill we possess, and all the efforts in our power. believing with you that the conduct of the government has been just and impartial to foreign nations, that the laws for the preservation of peace have been proper, and that they have been fairly executed, the representatives of the people do not hesitate to declare that they will give their most cordial support to the execution of principles so deliberately and uprightly established. the many interesting subjects which you have recommended to our consideration, and which are so strongly enforced by this momentous occasion, will receive every attention which their importance demands; and we trust that by the decided and explicit conduct which will govern our deliberations, every insinuation will be repelled which is derogatory to the honor and independence of our country. permit us, in offering this address, to express our satisfaction at your promotion to the first office in the government, and our entire confidence that the pre-eminent talents and patriotism which have placed you in this distinguished situation, will enable you to discharge its various duties with satisfaction to yourself and advantage to our common country. to which the president returned the following answer: _mr. speaker, and gentlemen of the house of representatives_: i receive with great satisfaction your candid approbation of the convention of congress; and thank you for your assurances that the interesting subjects recommended to your consideration shall receive the attention which their importance demands; and that your co-operation may be expected in those measures which may appear necessary for our security or peace. the declaration of the representatives of this nation, of their satisfaction at my promotion to the first office in the government, and of their confidence in my sincere endeavors to discharge the various duties of it, with advantage to our common country, have excited my most grateful sensibility. i pray you, gentlemen, to believe, and to communicate such assurance to our constituents, that no event which i can foresee to be attainable by any exertions in the discharge of my duties, can afford me so much cordial satisfaction as to conduct a negotiation with the french republic, to a removal of prejudices, a correction of errors, a dissipation of umbrages, an accommodation of all differences, and a restoration of harmony and affection, to the mutual satisfaction of both nations. and whenever the legitimate organs of intercourse shall be restored, and the real sentiments of the two governments can be candidly communicated to each other, although strongly impressed with the necessity of collecting ourselves into a manly posture of defence, i nevertheless entertain an encouraging confidence that a mutual spirit of conciliation, a disposition to compensate injuries, and accommodate each other in all our relations and connections, will produce an agreement to a treaty consistent with the engagements, rights, duties, and honor of both nations. john adams. united states, june , . monday, june . _defensive measures._ the house then resolved itself into a committee of the whole on the state of the union, and the speech of the president, at the opening of the session, having been read, mr. w. smith said, he wished to lay upon the table a number of resolutions, which it appeared, if it should not be found advisable to carry the whole of them into effect, were at least worthy of discussion. he did not, however, at present, pledge himself to support the whole: they were as follow: " . _resolved_, that further provision ought to be made by law, for fortifying the forts and harbors of the united states. " . _resolved_, that further provision be made by law, for completing and manning the frigates united states, constitution, and constellation. " . _resolved_, that provision be made by law, for procuring by purchase a further naval force, to consist of ---- frigates of ---- guns, and ---- sloops of war of ---- guns. " . _resolved_, that provision be made by law, for empowering the president to employ the naval force of the united states, as convoys to protect the trade thereof. " . _resolved_, that provision be made by law, for regulating the arming of the merchant vessels of the united states. " . _resolved_, that the existing military establishment ought to be augmented by an addition of one regiment or corps of artillerists and engineers, and ---- companies of dragoons. " . _resolved_, that provision be made by law, for empowering the president to raise a provisional army, to consist of ---- regiments of infantry, one regiment of artillery, and one regiment of dragoons, by commissioning the officers, and by volunteers or enlistments, whenever the circumstances of the country shall, in his opinion, render the said army necessary for the protection and defence of the united states: _provided_, that neither the officers nor soldiers shall receive any pay or emoluments until called into actual service. " . _resolved_, that provision be made by law, to authorize the president to borrow, on the credit of the united states, a sum not exceeding ---- dollars, to defray the expense which may arise in providing for the defence and security of the united states. " . _resolved_, that provision be made by law, to raise a revenue adequate to the reimbursement, within ---- years, of such sum as may be borrowed, as aforesaid. " . _resolved_, that provision be made by law, to prohibit, for a limited time, the exportation of arms, ammunition, and military and naval stores." the resolutions having been read from the chair, mr. w. smith moved the first of them. mr. giles wished the gentleman would reverse his propositions, and let the one for raising money come first. he did not know whether they were prepared to meet this expense. he did not mean to oppose the present motion; he supposed it would pass. but he thought they were about to be too precipitous in their measures. at a time when all europe seemed to be tired of war, and about to make peace, we seemed to be disposed to rush into it. he did not believe that much good would be done by this system of fortification. he did not think the united states were more secure now, than before they had a single work of the kind. we have, said he, an extensive sea-coast, and it was not to be expected that an enemy would choose to come to precisely the place where a fortification stands. it was his opinion that the interests of the country would be served, by letting this matter lie over till next session. mr. williams observed, that the sense of the committee should be first taken upon the propriety of going into the measure; if there was a majority in favor of it, (and he could not doubt it,) the matter would be referred to a select committee, who would make their report upon it. mr. s. smith was in favor of going into this measure; for if the war continued in europe, he thought it probable we might be drawn into it. mr. swanwick should not be opposed to the present motion, because he agreed with the gentleman from maryland, that whilst the war continued in europe there was a probability of this country being drawn into the vortex. but he thought there was some weight, also, in the observation of the gentleman from virginia, with respect to the ways and means; because, if, after they should agree to carry into effect certain measures, they should disagree about the means, their time would have been spent to no purpose. the question was put and carried, there being votes in favor of it. _completing and manning the frigates._ mr. gallatin said, if the question was to determine the principle of manning the frigates, the resolution stood right as it was. but if it were not intended, by adopting this resolution, to commit any man, but only to say that they would take the business into consideration, and if found useful and necessary, and funds were attainable, they would carry it into effect, then the amendment of the gentleman from new york (mr. livingston) would be proper. as to the committee's rising, he could see no ground for it, as these propositions were not new--they had had them before them for three weeks in the speech of the president. of course, so far as related to the frigates, gentlemen must have formed an opinion; yet he agreed that it was desirable to see some documents on the subject, before a decided affirmative or negative was given. he was, therefore, in favor of the amendment for a committee to be appointed. he wished all those subjects which were of a doubtful nature to be then determined. on the other hand, those upon which members were ready to decide at once, either by an acceptance or rejection, might be voted upon in the form in which they were introduced. mr. parker read the motion which was entered into last year, and thought it would be a good model for the present. mr. w. smith was of a different opinion. he thought the committee should first decide the abstract principle. he thought it would be wrong to refer to a select committee a business in which every member was so intimately interested, and he doubted not gentlemen were ready to decide upon this abstract question. with regard to expense, he was of opinion that if the situation of the country required it, that should be no object. if gentlemen thought differently, they would of course negative the proposition. any information on the subject could be got before the business was finished. he thought they should first say what were the necessary objects of expense, and then provide the money, which might be done by borrowing or by taxes. if there was a necessity for the expense, there was no doubt the money would be raised. if gentlemen were not prepared to discuss the subject, he had no objection to the committee's rising, and, in the house, the secretary of war might be called upon for information. mr. nicholas thought the question was not fairly presented. it was whether they should man the frigates. but when they were called upon to determine this, they should know when they would be ready to receive the men. the probability was that the frigates would not be ready to receive the men before the next session of congress. mr. dayton (the speaker) was in favor of the original proposition. he wished to provide for manning all the frigates which could be got ready before the next session of congress. he believed if they adopted this plan, unnecessary delay would be prevented. mr. parker was ready to vote for the proposition of the gentleman from south carolina. he believed the frigate in philadelphia might be equipped, rigged, and manned, in three months. the only reason why he varied his motion was, that he might include the next proposition; but he believed it would be better for them to stand separate, as, before he voted for the additional vessels, he should wish to know how the means were to be got, and for what purpose they were to be used. the vessel at boston, he said, would not be ready so soon, but it would be in readiness before the next meeting of congress; that at baltimore would be in readiness to receive her men in four months. mr. s. smith said, the frigate building at baltimore would be launched on the th of july, and the equipments were in greater forwardness than those for the frigate at philadelphia. mr. baldwin was against referring this proposition to a select committee. it would be desirable, indeed, to know what the cost of doing the business would be, but every one knew how little to be relied upon were estimates of this kind. he was ready to vote for manning the frigates; indeed there was no question upon which he was so ready to say aye, as upon this. the question was about to be put on mr. livingston's motion, when mr. varnum said he thought the wording of the resolution improper, as the word "completing" would clash with the act of last session. the question was put and negatived, to . mr. macon wished the frigates to be completed, but not manned, he therefore moved to strike out the words "and manning." the question was put and negatived; there being only twenty-four votes in favor of it. mr. giles moved to strike out the word "completing;" but, after some conversation, the motion was withdrawn, and the original resolution was carried. the third proposition next came under consideration. mr. nicholas hoped the gentleman who introduced this motion, would tell them for what purpose these additional vessels were wanted. he supposed this resolution to be connected with the next, and if so, he thought they should be considered together. what, he asked, were to be the instructions given to the commanders of these vessels? he thought it a very embarrassing business, and one that would certainly lead to war; nay, indeed, the thing seemed to be a war operation in itself. mr. w. smith wished the gentleman had made his inquiries before. they would have come more properly when the frigates were under consideration, as the same objection would be against both; and the next resolution had no more connection with this than with that already agreed to. the gentleman seemed to have let go the opportunity of calling upon him; as, however, he did not wish to evade his call, (though he was not willing to say he would himself vote for the measure,) he would say that it appeared to him, from the present state of the commerce of this country, to be necessary to provide convoys for our vessels. these vessels might not, indeed, be employed as a regular convoy, but partly confined to the coasts and harbors. mr. nicholas expected the gentleman from south carolina would have acknowledged that the two resolutions were connected. indeed he must have intended those vessels to be employed in this way, or such a resolution would not have been introduced. with respect to sweden's treaty for a reciprocal convoy, there was some ground for it, as there was a difference between the northern powers of europe, as to the principle of free ships making free goods; but where there was no difference as to the principle, no such thing could take place. mr. gallatin said the present resolution was certainly in some degree connected with the next. it was understood that the purchasing of frigates and sloops of war, was for the purpose of convoying our trade. under the present circumstances of this country, he should be opposed to this proposition; not that he denied the right of neutral powers to afford convoys to their merchant vessels; but, because under present circumstances it was impolitic to adopt the measure, not only for the reasons urged by the gentleman from virginia, but on account of our situation with respect to france at the present moment. by our treaty with france, enemy's property was to be respected on board of american vessels, and certain articles used in the building of ships were not considered as contraband; the president would, of course, be obliged to give orders to have our vessels protected in this situation, and who could not see that this would be the source of war; and if the convoy were not to be employed to enforce these two privileges, he did not see what use it could be of. he knew that depredations without number had been committed in the west indies; but he was led to believe that this was done by pirates more than by any other vessels. but suppose it were practicable to distinguish between those vessels which were regularly, and those which were piratically taken; yet, he must confess he would not be for running the risk of a rupture, by sending out armed vessels to contest the point, especially when we have reason to believe that these attacks are unauthorized by the french government. mr. g. thought it would only be necessary to extend our navy in case of war, and were this unhappily to be our situation, vessels might easily be purchased without delay; but whilst we were at peace, he did not think the advantages which could be derived from a convoy would be a sufficient inducement to go into the measure. besides he was induced by another motive to give this proposition his negative. he knew the depredations upon our commerce had been great; but he did not look upon this loss as falling only upon merchants. there was not an individual who did not bear a part of it.[ ] for instance, if a merchant paid ten or fifteen per cent. additional upon his cargo, he will put a proportionably high price upon his commodities, which must eventually be paid by the consumer. therefore, so far as an argument might be drawn from this circumstance, it became a question of expediency, and he thought it would be granted, that the loss to individuals would be less in this way than if they had to support a navy to protect our trade. mr. w. smith acknowledged that there was considerable weight in the arguments of the gentleman from pennsylvania, though he did not find sufficient weight in them to change his opinion of the propriety of the measure. the gentleman from virginia had endeavored to show that, as there was no difference of opinion as to principle between france and this country, the regulations entered into with sweden did not apply; whilst the gentleman from pennsylvania had produced arguments to show that we were in that situation. with respect to the treaty articles in dispute, it would be an easy matter for the president to give the commanders of our vessels proper instructions on that head. and would any gentleman say it was not right to defend our vessels against pirates? would not the french say, if they were applied to for redress, "you knew these were pirates; why did you not defend yourselves against them?" the expense, which seems so much to alarm gentlemen, should be put out of the question. the only question, said he, is, if your property is unjustly attacked, will you defend it? but it was said the loss did not fall upon the merchant, but upon the consumer. mr. s. asserted it fell upon the country; and so far from the expense of the proposed armament being equal to the loss sustained by captures, it would not, in his opinion, be a tenth part of the amount, for whatever the plunderers got this country lost. mr. s. said he had made a rough calculation of what would be the expense of three frigates, of guns, and six sloops of war of guns, and found it to be $ , , including the equipment and manning for one year. mr. giles said, the gentleman from south carolina talked of defensive measures, but his plans were offensive. that gentleman had undertaken to doubt the right of france to declare her ports rebel ports. was this defensive? every nation had this right. it was not long since great britain exercised it against us. yet, aided by a convoy, he wished to push our trade to these ports. this would not only be hazarding the peace of the country, but taking the direct road to war. besides, said mr. g., could it be expected that six or ten frigates could convoy all our vessels? no; not a twentieth part of them. they could, therefore, be of little use, but might be the means of producing the greatest evil to the country. mr. baldwin said, in all their determinations with respect to a naval force, however great the emergency, it has always been determined to build, rather than purchase vessels, and he saw no reason for departing from this mode in the present instance. after some objections from mr. w. smith to the building plan, which he said would take three or four years to furnish the proposed vessels, whereas merchant vessels might be immediately purchased, which would answer the purpose of small frigates, the committee rose, reported the two resolutions, which the house took up and agreed to, and committees were appointed to report upon them by bills or otherwise. wednesday, june . _defensive measures._ arming merchant vessels. the th, which was in the following words, having been read, "_resolved_, that provision be made, by law, for regulating the arming of merchant vessels of the united states," mr. swanwick inquired, with what view these vessels were to be provided? against whom they were to be employed? and in what cases they were to defend themselves? the information which he might receive on these inquiries, he said, would have considerable weight in influencing his vote. mr. harper said the detail would be brought forward in the bill; the principle was now only to be determined. he had not thought of all the modifications which might be given to it, though he had thought of many; but it would be best discussed in its general form. the gentleman, if he thought proper, might introduce into the resolution any principle which he might wish to have inserted in it. mr. williams said it was well known that a number of our merchantmen were arming in different ports of the union, and it was, therefore, necessary to regulate this business, to prevent mischief being done. gentlemen might differ in opinion with respect to the marine law or laws of nations on this subject; but all would wish, since vessels were arming, that they should be put under some restraint. when he voted for manning the frigates, he did it with a view to have them employed in the defence of our coasts, and not as a convoy. our situation, he said, was truly critical, and he was undetermined how far it would be proper to arm the merchant vessels of the united states; but to prevent mischief, he wished the resolution might be agreed to, reserving to himself the right of voting ultimately for or against it. it might afterwards undergo such modifications as should be found necessary. mr. livingston said the gentleman from pennsylvania had very properly inquired what was the scope of the present resolution, and he expected some answer would have been given. the gentleman from south carolina had said they must vote for the principle, and the detail would come of course. so that without knowing its object, whether it was defensive or offensive, they were called upon to agree to the principle. this deficiency had been supplied in some degree by the gentleman from new york. he says the merchants have undertaken to arm their vessels. he wished to know whence he derived his information? the only information before them was in the president's speech, where he says he has forbidden such armament, except in the east india trade. he therefore supposed the fact not well founded. what, he asked, was intended to be done with these armed vessels? he said they must argue hypothetically. he supposed they were intended to protect our trade. he did not believe they were meant to operate offensively. but he would ask if this were the case, if it would not lead directly to war? since individuals would be left to determine the laws of nations, and of course the peace of the country would be placed at their disposal, and all precautions, on the part of government, would be in vain, since individuals, who might have an opposite interest to that of the government, might be continually committing acts of hostility. mr. s. smith acknowledged that the present was a very delicate subject; but had not the president forbidden the arming of merchant vessels, he should have been of opinion that the merchant vessels of a neutral power had always a right to arm for their own defence. but he believed it was necessary that something should be done. merchants would arm their vessels from the right given to them by the law of nations, and, if not restrained, might go on to do acts which could not be justified. though he believed merchants possessed the right of arming their vessels, yet, rather than do any thing which would involve the country in war, he believed they would desist from the practice, and bear the losses which they might, for the want of arms, suffer. he moved to strike out the word "regulating," and to insert in the place of it "restricting in certain cases." mr. gallatin said it seemed as if the motion of the gentleman from south carolina was susceptible of any shape, since the amendment now incorporated into it seemed to have a different view from the original. at present he would state his objections to the principle of the resolution itself. the first inquiry was, whether the law of nations permitted the merchant vessels of neutral nations to arm? if they had not a right to permit it, whether they are not bound to prohibit it? he had examined the law of nations on this subject, and found no such authority, nor did the practice of modern times justify the practice. he took a view of the different stages of society, to show that whenever regular governments were established, the public defence was always placed in them, and it was their duty to protect individuals, since they did not give them leave to protect themselves. mr. g. said he knew of no exception but in case of letters of marque and reprisal, and he did not know a single instance within the last century where these had been granted, but war had been the consequence, so repugnant were they to the present state of society. it was true, nations might be in such a state as to find it necessary to grant such a power; as when a nation with which it has to do is unable to support the common relations of intercourse. two instances of this kind presented themselves, viz: the east india trade and the mediterranean trade. in carrying on our trade with the east indies, our vessels were met by those of a number of uncivilized powers, upon whom no restraint could be had, so that no remedy was left to us, but immediate resistance. nearly of the same nature was the situation of the barbary powers in the mediterranean; and, although we enter into a treaty with them, we have not a perfect reliance upon their observing their engagements; our merchant vessels are therefore permitted to trade to those parts armed. he knew it might be said that, at present, the west indies were in a similar situation. he believed, in some respects, they were; and this could be the only plea for adopting a measure like the present. if it were to be understood that there was to be an end of the negotiation with france, or that the privilege of arming would not be abandoned, it might be proper to authorize the arming of merchant vessels; but he believed, if it were considered that such a permission would be almost certain to involve us in war, it would appear to be much more wise to await the event of the negotiation with france; not that he was afraid of offending france by a measure of this kind, but he was afraid of involving our country in a war. mr. s. smith conceived that congress were called together to adopt such measures as were best calculated to preserve the peace of the country, by means of negotiation, and to fix upon such means of defence as would not be injurious to the country. it was his opinion that the president was not authorized by law to prevent the vessels of merchants being armed; but the merchants of the united states would readily submit to any loss rather than go to war. he knew that this was the opinion of the philadelphia merchants: he had seen many of them. nor had he met with one native american who wished to go into this arming plan; they believe it would infringe our neutrality, and throw us into a war. when he came here, his mind was scarcely made up on the subject. he did not like to give up his right to defend his property; but he had found this to be the general opinion, and therefore he brought forward the amendment, which had been well amended by the gentleman from connecticut. the gentleman from south carolina had since added _west indies_, and this brought them to an issue; for it was war or no war. if the latter amendment was agreed to, he should be for striking out the whole, leaving it general; because, with west indies in it, it would be particularly pointed. they had been told of the loss sustained by spoliations, and where it fell. he believed it fell upon the great body of the people of america, and that the fall in the price of produce had been occasioned principally by the british admiral having forbidden the carrying our provisions to hispaniola. the british fleet in the west indies, he said, was supplied with provisions from ireland, whilst the french depended upon this country for supplies; so that they were our best customers there. friday, june . stephen bullock, from massachusetts, appeared, produced his credentials, was qualified, and took his seat. _defensive measures._ naval force. mr. w. smith said, he had waived a consideration of the third and fourth resolutions, in order to pass to the fifth, because he thought it was probable the committee would have determined upon arming our merchant vessels; and if so, it might have influenced the votes of members on those; but, as the committee had just decided against arming merchant vessels, he should propose another resolution to the committee. it was well known that the three frigates which had been agreed to be manned, would not be ready for sea for several months; in the mean time there might be occasion for some armed vessels; he should, therefore, submit to them the following resolution: "_resolved_, that it is the opinion of this committee, that the _president of the united states_ ought to be authorized by law to provide a further naval force, whenever, in his opinion, the circumstances of the country shall require the same; and that ---- dollars be appropriated for that purpose." the chairman said the resolutions of the gentleman from north carolina were first in order. mr. w. smith said he had no objection to the proposition of the gentleman from north carolina, as a part of a plan of defence, but he thought it also necessary to attend to the protection of our commerce. mr. blount said, it was perfectly indifferent to him whether the gentleman from south carolina considered his plan as a part or the whole of a system. that gentleman had accused those who voted against his proposition, with being unwilling to place the country in a posture of defence. now, he had voted against, and should continue to vote against, his proposition--but he was willing, notwithstanding (as he believed all those who voted with him were) to put the country in a state of defence. it was his opinion that internal defence only was necessary. he thought the system which he had proposed would be sufficient. when they had adopted this resolution, it might be considered whether any thing more was necessary. he had no idea of creating a naval force for defence; on the contrary, he believed it would be the means of plunging us into fresh difficulties. for this reason, if the resolution he had proposed were passed into a law, he should go home satisfied, with a belief that he had done all that was necessary. and he was convinced that his constituents would believe that he never wanted a disposition to defend his country when in danger. mr. w. smith did not think these propositions could be of any use at present; they would be very proper in case an invasion was apprehended. he thought the principal object, at this time, was to defend our commerce, and thereby secure the revenue arising from it, either by an effectual naval armament, or by an embargo; and he thought he was correct in saying, in reference to this defence, that the gentleman opposed every thing, and proposed nothing. gentlemen, he said, were very ready to propose things which would cost the public nothing: the militia measure proposed would cost no more than the passing of the law; but, if ever any expense was to be incurred, then all was opposition. the commerce of the country could not be defended, without calling upon the people for revenue; and he thought those gentlemen who stepped forward to advocate such measures as involved expense, and which were consequently in some degree unpopular, deserved the gratitude of their constituents. he had never hesitated to do this, when he thought it necessary. he should not, however, object to the passing of this proposition; he only rose to say, he did not think it immediately necessary. mr. w. smith called for the reading of a similar resolution passed in ; which being read, and a wish expressed that the present might be made conformable to it, mr. blount gave his consent; and, after a few observations from mr. williams in favor of the resolution, though he denied that it could be carried into effect without expense, the resolution was agreed to. saturday, june . a bill was reported forbidding citizens of the united states from entering into the service of any foreign prince or state in a state of war, which was read twice and committed to a committee of the whole on monday. _stamp duties._ mr. w. smith, from the committee of ways and means, reported a bill for laying a stamp duty on vellum, parchment, and paper, viz: for a license to practice as a counsellor, attorney, &c., five dollars. for every grant, or letters patent, four dollars. for every exemplification or certified copy of letters-patent, two dollars. for every receipt or discharge for any legacy of fifty dollars and not more than one hundred dollars, twenty-five cents; above one hundred and not more than five hundred dollars, fifty cents; and for every additional five hundred dollars, one dollar; but not to extend to legacies left to a wife, children, or grand-children. for every policy of insurance of vessels or goods from one district of the united states to another, twenty-five cents. for every such policy of insurance to a foreign port, for a sum not exceeding five hundred dollars, twenty-five cents; if it exceeds five hundred dollars, one dollar. for every exemplification, of what nature soever, fifty cents. for every bond, bill, or note, (except the note of the chartered banks which may be now or hereafter in existence,) not exceeding one hundred dollars, ten cents; above one hundred dollars, and not exceeding five hundred dollars, twenty-five cents; above five hundred dollars, and not exceeding one thousand dollars, fifty-cents; above one thousand dollars, seventy-five cents. (if payable within sixty days, they will be chargeable with only two-fifths of these duties.) for every protest of a note, twenty-five cents. for every letter of attorney, twenty-five cents. for every certificate or debenture, for drawing back any duty on the re-shipping of goods, one dollar. for every note or bill of lading, for goods from one district to another, within the united states, (not in the same state,) ten cents. for ditto to a foreign port, twenty-five cents. for every inventory or catalogue of furniture, goods, or effects, in any case required by law, (except in the case of distraining for rent, or an execution,) fifty cents. for every certificate of a share or shares in the bank of the united states, or other bank, ten cents. the bill was twice read, and ordered to be committed to a committee of the whole on monday. wednesday, june . _expatriation._ the speaker having informed the house that the unfinished business of yesterday, viz: the bill prohibiting citizens of the united states from entering into the military or naval service of any foreign prince or state, had the priority. mr. gallatin moved to have it postponed, in order to take up the bill respecting an additional naval armament. this motion was supported by mr. giles, and opposed by mr. w. smith, and negatived, to . the bill respecting foreign service was then taken up, and, on motion of mr. havens, it was agreed to leave the time for its taking place a blank. mr. coit moved to strike out the sixth section. [it defined the mode in which a citizen of the united states might dissolve the ties of citizenship, and become an alien.] mr. sewall hoped it would be struck out. in every country in the world where civil society was established, the citizens of that society owed a certain duty to their government, which they could not readily get rid of; but they were about to establish a principle to put it in the power of the citizens of the united states, at their will, and without any pretence, to say they would be no longer subject to the government; and this is at a moment of danger, when citizens of other countries might be called home from this country. he thought this would be extremely wrong; it would be giving an opportunity for insult to our courts and country, and he was sure no nation would show us so much complaisance in return. mr. claiborne thought it no more binding for citizens born in the united states to continue citizens of the united states, than it was for a roman catholic or protestant to continue of that opinion, when he arrived at the years of maturity and could judge for himself. he insisted upon it, men had a natural right to choose under what government they would live; and they had no reason to fear our citizens leaving us whilst our government was well executed. he did not wish citizens of the united states to be in the situation of subjects of great britain, who, though they had left the country forty years ago, were liable to be considered as subjects of that government. he trusted the rights of man would not be thus infringed, but that they should allow the right of expatriation unclogged. mr. sewall said, there was a great difference between the two cases which the gentleman had stated. a man born and educated in a country certainly owed it obligations, which were not to be shaken off the moment he chose to do so. the different societies of the world, he said, were like so many families independent of each other; and what family, he asked, would suffer any of its members to leave it and go into another when they pleased? he thought it unreasonable that it should be so. mr. w. smith said, that the doctrine of perpetual allegiance was derived from great britain, and, though it might be good in theory, was not so in practice. they had departed from many doctrines derived from that country, and the time was come, he believed, for departing from this. the idea of a man being compelled to live in this country, contrary to his will, seemed to be repugnant to our ideas of liberty. he thought when a man was so disgusted with a country as to resolve to leave it, for the purpose of becoming a citizen of another country, he should be at liberty to do so on his complying with certain formalities, and should never again be re-admitted. it was upon this principle that this section is founded, and he thought it valuable. mr. s. thought this section essential, as it would be a means of preventing quarrels with foreign countries. for instance, if a citizen of this country took command of a french ship of war, and were to commit hostilities on the property of citizens of the united states, if he were taken he might allege that he was a citizen of the french republic, and that government might claim him as such; but if this bill passed, no man could cover himself under this pretence who had not complied with the requisitions in this act. he mentioned the case of mr. talbot. mr. s. said they held out inducements for persons to come to this country. we did not allow they owed allegiance to any other country after they had become citizens of this. to grant this would be a fatal doctrine to this country. it would be to declare that, in case we were at war with another country, that country might recall persons from this, who formerly came from thence. many persons of that description were amongst us. at present they enjoy all the benefit of our laws and vote at our elections; and yet, if this doctrine were admitted, these persons might be recalled as aliens; and if they were not recalled, they would be considered as qualified aliens, and not as real citizens. this law, mr. s. said, was necessary, as at present there was not sufficient energy in the government to punish persons serving on board foreign ships of war. this bill would cure the evil, and give an opportunity for turbulent, discontented characters to leave the country for ever. he believed it was the general opinion of the citizens of this country that they had the right to expatriate themselves, and he thought it was now a proper time to pass some regulations on this subject. mr. sitgreaves thought this one of the most delicate and important subjects that ever came before congress. he saw a number of difficulties, but he thought they were not of a nature to discourage them from considering the bill. he trusted they should meet them with firmness. the evil, he said, which gave rise to this bill was a great and growing one. in the first war which had taken place in europe since our independence, they found this doctrine of expatriation, as claimed by our citizens, endangering our peace with a foreign nation, and if this principle were admitted he feared we should always be liable to similar embarrassments. mr. s. took notice of the different objections made to this section. he observed there seemed to be much doubt on the subject, which he thought ought to be removed by passing a law of this sort. he wished he could agree in the opinion that no citizen had a right to expatriate himself from this country. he thought it a doctrine essential to the peace of society. he wished it was generally recognized; but he believed the major opinion in this country was different; and, though not directly, it had in a great degree been recognized by the executive and judiciary in the cases of hinfield and talbot. he feared, therefore, it was too late for them to say the right did not exist. it was time, however, for congress to declare an opinion on the subject. if the proposition in the bill was not a proper one, it should be made so. in the state of virginia this doctrine was legalized, and in the constitution of pennsylvania it was strongly indicated, as it said "emigration should not be prohibited." it was a favorite idea of a republican government not to forbid it. he did not agree with the principles of the clause in all its parts. he thought citizens ought not to be allowed to expatriate in time of war, as their assistance would be wanted at home. it was his intention to have moved an amendment allowing expatriation only in the time of peace, and an express provision against it in time of war. he thought the doctrine of the gentleman from maryland, viz: that our citizens ought to go into other countries to learn the art of war, was chimerical. when they had obtained rank and wealth in a foreign country, it would be in vain to call them back; they would not return. he hoped, therefore, the section would not be struck out, but that they should proceed to amend it. mr. n. smith was sorry that the committee who reported this bill had thought it necessary to report the sixth and seventh sections. the doctrine of expatriation on one hand, and perpetual allegiance on the other, were subjects they had all heard much about; but expatriation, under limitation and restraint, was a new business. from its novelty it became doubtful. this being the case, he wished the subject had been deferred to an ordinary session; particularly as it appeared to be no more connected with other parts of the bill than with many other laws now extant. if we were to have a law on this subject, he should wish to have it in a separate bill. for his part, he could not see how the committee could suppose it to be a part of their duty to report these sections. if he had thought it had, he should not have voted for appointing a committee on the occasion. gentlemen advocating these clauses, say they would not allow of expatriation in time of war. he would go further and say he would not allow of it when there was a prospect of war, for it is idle to prohibit it in one case and not in the other. he then asked if this was not the very state in which we now were? if it were, why pass such a bill at this time, when it could not go into operation? he thought this a good reason for rejecting these clauses. there was a mutual obligation, mr. s. said, between a government and all its citizens. the government owed protection to its citizens, and citizens owed obedience to their government. these duties were mutual and co-extensive; and they might as well say that government could abandon its citizens when it pleased as that citizens could desert their government when they pleased. yet he would allow that government might, on certain occasions, legalize expatriation, but not on the ground of a citizen's having a right to expatriate when he pleased. he should have no objection to take up the subject at a time when they could do justice to it, but he thought the present was not that time. the question for striking out the th section was put and carried, to . the committee accordingly rose, and the house took up the amendments. having come to that part for striking out the th and th sections, mr. dent called for the yeas and nays, which were agreed to be taken. mr. venable said, it seemed to be admitted that a right of expatriation existed in our citizens; and if so, he thought there should be some mode of exercising that right. he had no particular objection to the mode marked out in these clauses. it had been said this was not the proper time; but he thought it was, since it was in some degree connected with the present bill. the gentleman from connecticut had stated allegiance and protection to be mutual. he did not think they were so, to the extent which he stated. this government was not bound to protect citizens who went into foreign service, as in doing so they chose the protection of another government. mr. harper asked for an instance in which the executive and judiciary had countenanced the doctrine of expatriation. mr. w. smith, in answer to his colleague, produced the case of talbot, and the opinion given by the secretary of state and the judiciary court, on that occasion, in favor of the right of expatriation. mr. giles thought there could not be a doubt in the minds of americans on the subject of expatriation. indeed, he said, this was the foundation of our revolution; for they were not now to be told they owed allegiance to a foreign country. it had not only been the ground of the revolution, but all their acts had been predicated upon this principle. he referred to the act respecting the rights of naturalization, which makes every new citizen swear to support the constitution of the united states, and to renounce all other allegiance. mr. gallatin was opposed to these sections. with respect to expatriation, having himself exercised the right, he could not be supposed to be opposed to that right. perpetual allegiance was too absurd a doctrine to find many advocates in this country. the question was not whether citizens had a right to expatriate, but whether they should in this law prescribe a mode of doing it. the right seemed to have been recognized by the executive and judiciary. he was against going into this business, because he thought it unnecessary. he believed the determination of who were citizens, and who were not, might be safely left with the judiciary. he had also his doubts whether the united states had a right to regulate this matter, or whether it should not be left to the states, as the constitution spoke of the citizens of the states. it was a doubtful matter, and ought to undergo a full discussion. the emigrants from this country to foreign countries were trifling; but from ten to twelve thousand of our citizens had gone to canada, and upwards of five thousand beyond the mississippi, four thousand of whom would be got back by the running of the lines. a number of these men hold lands in the united states; some have sold their lands and become citizens under another government. this subject would, therefore, require considerable deliberation at a future day. he wished the amendment of the committee of the whole to be adopted. mr. sitgreaves confirmed his former statement, with respect to the question of the right of expatriation having been settled by the judiciary. in order to do this, he read a note from one of the counsel in the cases of henfield and talbot, giving an account of the opinions of the court on the occasion. mr. sewall insisted upon the policy of preventing the renunciation of allegiance, without control. the treaty of peace with great britain, he said, had dissolved our allegiance to that country, and acknowledged our independence. mr. giles believed the evil apprehended from individuals having the right to expatriate themselves when they pleased, was more imaginary than real. only two citizens had taken advantage of that right in the state of virginia, where it was allowed in all its extent, in twelve years. but if there were any citizens so detached from the government as to wish to leave the country, he should wish them gone. to suppose this, would be to suppose a real division between the people and government, which he did not believe had existence. it was said great britain did not allow the doctrine of expatriation; but, he said, she had not any naturalization law. he was in favor of excluding citizens who once expatriated themselves from ever returning to this country. mr. otis said, that when this bill was first reported, these clauses struck him unfavorably; but a little reflection had convinced him of the propriety of retaining them. the passing of this provision, he said, would not affect the constitutional right with respect to expatriation, whatever it might be. this bill did not relate to persons emigrating into the spanish or english territories, but to persons expatriating themselves, and engaging in the service of foreign countries. the question on agreeing to the reports of the committee of the whole to reject the sixth and seventh sections of the bill was taken, and stood--yeas , nays . all the amendments having been gone through, mr. s. smith moved to postpone the further consideration of the bill till the first monday in november. this motion was supported by messrs. varnum, n. smith, baldwin, goodrich, and coit, as involving a question of too delicate and important a nature to be passed over in this hasty manner, and because there was no pressing necessity to go into the measure at present. it was opposed by messrs. otis, williams, w. smith, and craik, on the ground of the provision of the bill being necessary, and that to postpone the business, after so ample a discussion, would be undoing what they had been doing for two or three days. the question for postponement was taken, and decided in the affirmative--yeas , nays . the bill being thus lost, mr. w. smith proposed a resolution to the house for appointing a committee to report a new bill without the two last clauses, which, it was evident, had been the cause of the negative given to the bill. as he supposed no opposition would be made to the bill so reported, it might be got through without loss of time. after some conversation on a point of order, whether or not this resolution could be admitted, the speaker declared it in order, but mr. coit wishing it to lie on the table till to-morrow, it lay accordingly. thursday, june . _expatriation._ mr. w. smith called up the resolution which he yesterday laid upon the table, for appointing a committee to bring in a bill for prohibiting citizens of the united states entering on board foreign ships of war, without the expatriating clauses. this resolution was opposed by messrs. baldwin, giles, and venable, and supported by the mover and mr. harper. it was negatived-- to . _depredations on commerce._ a message was received from the president of the united states, of which the following is a copy, with the titles of the documents accompanying it: _gentlemen of the house of representatives_: immediately after i had received your resolution of the th of june, requesting a report respecting the depredations committed on the commerce of the united states, since the first of october, , specifying the names of the vessels taken, where bound to or from, species of lading, the value, when it can be ascertained, of the vessel and cargo taken, and by what power captured, particularizing those which have been actually condemned, together with the proper documents to ascertain the same, i directed a collection to be made of all such information as should be found in the possession of the government. in consequence of which, the secretary of state has made the report and the collection of documents, which accompany this message, and are now laid before the house of representatives, in compliance with their desire. john adams. united states, _june_ , . report of the secretary of state to the president of the united states, respecting the depredations committed on the commerce of the united states: . abstract of two cases of capture made by the british cruisers of vessels belonging to citizens of the united states since the first of october, , and wherein documents have been received at the department of state; also a copy of a memorandum filed by s. smith, esq., relating to captures made by the british of vessels in the property of which he was concerned. no documents accompany the two cases of capture above mentioned, they having been sent to london, in order that compensation might be obtained for the damages suffered. . a correct copy of the decree of the executive directory of march , . . copies of documents remaining in the department of state, relative to american vessels captured or condemned by the french, since the first of october, . . extracts from communications from the consuls of the united states, relative to depredations committed on the commerce of the united states by the french. . schedule of the names of american vessels captured by the french, and of the circumstances attending them, extracted from the philadelphia gazette, and gazette of the united states, and commencing with july, . . extract of a letter from rufus king, esq., minister, &c., enclosing the protest of william martin, master of the cincinnatus, of baltimore, relative to the torture inflicted on the said martin by a french cruiser. mr. giles moved that the above papers should be referred to a select committee, to print such as would be useful to the house. this question was negatived-- to , and a motion carried for printing the whole. _day of adjournment._ mr. giles called up the motion which had some days ago been laid on the table respecting an adjournment. mr. gallatin wished to modify his motion, by making the proposed day of adjournment the th instead of the th instant. mr. sitgreaves moved for the yeas and nays on the question. mr. macon moved to make the day the th, which was consented to by the mover. mr. dent proposed to make it the th. the question was taken on adjourning on the th, and negatived--there being only votes in favor of it. the question on the resolution for the th was carried--yeas , nays . saturday, june . _protection of trade._ naval armament. the bill for providing for the protection of the commerce of the united states was read a third time, and the blank for filling up the number of men to be employed in the cutters, was filled up with thirty; on the question being about to be put on the passing of the bill, mr. nicholas said some statements had been received from the war department, and ordered to be printed. he had not seen a copy of them, but was informed there were yet wanting $ , to complete the frigates. he wished information on the subject. mr. parker read an extract from the account which had been printed. mr. nicholas wished to know how it happened that in four months so great a mistake could have occurred as to the expense of finishing these vessels. when the last appropriation of $ , was made, they were told that sum would be sufficient to make them fit to receive the men on board, but now they were called upon for $ , more. he thought this matter ought not to pass over without inquiry, as he did not like to be drawn from step to step to do what, if the whole matter had been seen at first, they might not have consented to. he trusted this was not intentionally done, but he owned it looked very suspicious. mr. parker believed the estimate of last session was only to make the vessels ready to receive the guns on board, and did not include the guns. mr. gallatin said, as he meant to vote against the passage of the bill, he would briefly state his reasons for doing so. he knew only of two arguments in favor of the bill; the first, that it was necessary during a time of peace to lay the foundation of a navy; the other was, that, the frigates being built, it would be proper to man them. as to the propriety of having a navy, he did not mean to go generally into the subject, but he would make a few observations as to our situation for engaging in an establishment of this kind. suppose that navies were necessary in european nations, to increase their power or to protect their commerce, these considerations did not apply to our present circumstances. in order to prove this, it was only necessary to take a view of our revenue, and the expense of a fleet. the amount of revenue from the st of april, , to the st of april, , received into the treasury, was $ , , --a sum which by far exceeded that of any former year; and he did not think that the permanent revenue of the united states could be well extended beyond that sum. for instance, he did not think that nine millions could be raised from the people without oppression. indeed, by the best calculations on the quantity of circulating medium in the country, it was not allowed to exceed eight millions: and he did not believe that any nation could raise a larger sum in taxes than was equal to the amount of their circulating specie. [here mr. gallatin produced a detailed statement to show the expense of building the three frigates, to wit: $ , , , and the sum of $ , for the yearly expense of keeping them in service, repairs inclusive.] this statement showed, mr. g. said, that these frigates had cost about £ , sterling a gun, though the common calculation in great britain was only half that sum. if, from building the frigates, they turned to the expense of manning them, the same conclusion would be drawn. they found that the pay of an able-bodied seaman in the british navy had lately been raised from s. d. to s. sterling a month, which was $ - / ; but, by the present law, $ , a month were allowed for the pay of the petty officers, midshipmen, seamen, ordinary seamen, and marines, which averaged from to dollars a man. when he heard gentlemen stating the advantages of the naval strength of denmark and sweden to those countries, he could not agree with them altogether, though he agreed they had some weight; but it was well known that the grand navy of portugal had no weight whatever in the scale of the large navies of europe; it did not even enable her to protect her trade: for, if either france or great britain had the superiority in the mediterranean, she was under their control. he believed denmark and sweden had thirty sail of the line each, and he wished gentlemen to calculate how much it would cost us to have such a navy. a fleet of a few vessels would not then be able to afford protection to our trade; and it was wholly out of our power to have a fleet equal to that of denmark or sweden. mr. swanwick believed the expense of these frigates had been much greater than any future ones would be. when they were told they had cost £ , sterling a gun, it was evident there must have been great extravagance in the expense, as merchant vessels might be built as cheaply in this country as in any other. he supposed the extra expense had been owing to the want of some regular establishment to overlook the business, and because it had been undertaken at a time when other nations were at war, and of course when materials were very high. sixteen thousand dollars worth of hemp had indeed been burnt by accident at boston. as to the terms of seamen, though they might at first be high, when the service was known he doubted not they would fall. mr. j. williams said, he had always opposed the establishment of a navy, and was the question now whether or not we should commence a navy he should certainly be against it; but, as the frigates were so far advanced, he thought they ought to finish them, especially when they considered the present critical situation of our affairs; for, if a general peace did not take place in europe, the war would probably become a maritime war, and we might be involved in it. but he was still of opinion that if we must go into an expensive naval establishment for the protection of our commerce, we had better have none. but, say gentlemen, where will you find revenue? he believed, though we had no armed force, a considerable commerce would still be carried on,[ ] and those who declined it would turn their attention to agriculture and manufactures, from which any deficiency of revenue would readily be supplied. it was true, as had been stated, that they had been called upon from time to time for additional sums to complete these frigates, and he knew not when these calls would end. mr. giles was obliged to the gentleman last up for his speech against the present bill, though he meant to vote for it; he would rather, however, that he had _spoken_ in favor, and _voted_ against the bill. mr. g. said he should vote against the passing of the bill, and for the reasons assigned by that gentleman. he thought a navy would be a great evil for this country. our great interests lay in the soil; and if ever the vitals of the country were to be drawn together for the purpose of protecting our commerce on the sea, he should greatly lament it. he believed the despotism of nations kept pace with the ratio of expense of their governments. he was sorry to say that he was more and more convinced that it was the constant aim of some gentlemen in that house to increase the expenses of our government. the propriety of establishing a navy had scarcely ever been seriously considered; it was first begun under an alarm, and it had been continually carried on by the same means. mr. harper said gentlemen seem to abandon their objections to this bill by admitting that there was no probability it would not pass. but why? because a majority of the house either think the measure is proper in itself, or from the particular circumstances of this country. it was surely a singular instance of modesty in gentlemen, after this concession, to argue against the passing of the bill. mr. h. did not admit that these frigates were commenced from an idea of laying the foundation of a large navy establishment, but from particular circumstances; and, said he, shall we, at a time when we are threatened with danger, abandon them? he trusted not; such conduct would be absurd in the extreme, and imply a character of imbecility which he hoped their councils would never deserve. mr. allen said, he had some objection to the passing of the bill, but his objections were to the amendments which had been introduced into it, yet he did not know but he should vote for it. he thought there was a provision in the bill which went to prostrate this government. he alluded to that part of it which directed the manner in which this force should be used. he considered this as a violation of the constitution, besides carrying upon the face of it an idea that one of the branches of this government could not be trusted with the exercise of its power. was it possible, he asked, for a government to exist, when this confidence was refused to one of its branches? what were the people of the united states, and abroad, to think of this? would not the people of this country think it their duty to destroy a power which could not be trusted; and would not foreigners despise it? it seemed as if this were the intention of gentlemen. mr. a. also objected to the clause limiting the duration of this bill; since this went to say that they not only distrusted the other branches of the government, but themselves. a thing which must in its nature be perpetual, was there limited. he deprecated the idea of expense being an objection to this measure. our emancipation from the chains of great britain, he said, was attended with a great expense; but was it not believed that the liberty and independence of this country were of superior value to money? he trusted they were. he could only suppose, therefore, that men who objected against the expense, must themselves be sordid and avaricious. if these frigates had been provided four years ago, he believed all our present difficulties would have been prevented, and a sum vastly less than that of which we had been robbed would have done the business. mr. a. denied that ships of war could now be built in england for £ , a gun; that was formerly the price, but they now cost £ , per gun. mr. nicholas had always been of opinion, that the expense of these frigates was a useless expense; he did not believe a case could happen, except within our own jurisdiction, where these vessels could be of advantage to us; but notwithstanding this was his opinion, he should vote for the passing of this bill, because he saw the sentiments of that house and the public were strongly in its favor, from a persuasion that the measure was necessary, and that the thing would be a continual topic of dispute until it was carried into effect. he was willing, therefore, to let the vessels go to sea, believing that nothing short of actual experience would convince the supporters of this measure that it was useless, expensive, and injurious; and hoping that by one year's experience of the plaything, finding that money was of greater value than the frigates, all parties would concur in relinquishing it. the question was then taken on the passing of the bill, and decided in the affirmative--yeas , nays , as follows: yeas--john allen, george baer, jr., theophilus bradbury, david brooks, nathan bryan, dempsey burges, christopher g. champlin, james cochran, william craik, samuel w. dana, james davenport, thomas t. davis, john dennis, george dent, george ege, lucas elmendorph, thomas evans, abiel foster, dwight foster, john fowler, jonathan freeman, nathaniel freeman, jr., james gillespie, henry glenn, chauncey goodrich, william gordon, roger griswold, william b. grove, john a. hanna, robert goodloe harper, carter b. harrison, thomas hartley, william hindman, david holmes, hezekiah l. hosmer, james h. imlay, john wilkes kittera, edward livingston, samuel lyman, matthew lyon, james machir, william matthews, john milledge, daniel morgan, john nicholas, harrison g. otis, josiah parker, elisha r. potter, john read, john rutledge, jr., james schureman, samuel sewall, william shepard, thomas sinnickson, samuel sitgreaves, jeremiah smith, nathaniel smith, william smith, of charleston, richard sprigg, jr., john swanwick, george thatcher, richard thomas, mark thomson, abram trigg, john trigg, john e. van allen, philip van cortlandt, peleg wadsworth, john williams, and robert williams. nays--abraham baldwin, david bard, thomas blount, richard brent, thomas claiborne, matthew clay, john clopton, joshua coit, john dawson, albert gallatin, william b. giles, andrew gregg, jonathan n. havens, walter jones, matthew locke, nathaniel macon, blair mcclenachan, joseph mcdowell, anthony new, tompson j. skinner, william smith, (of pinckney district,) richard stanford, thomas sumter, joseph b. varnum, and abraham venable. the title was altered from "an act for the protection of the trade of the united states," to "an act providing a naval armament." monday, june . lewis r. morris, from vermont, and lemuel benton, from south carolina, appeared, produced their credentials, were qualified, and took their seats. _stamp duties_: _naturalization certificates_: _lawyer's licenses_: _conveyances_. the house went into a committee of the whole on the bill for laying duties on stamped vellum, parchment, and paper; when, the first section being under consideration, mr. kittera moved to add, "any certificates of naturalization ---- dollars," as he thought foreigners, who were admitted to all the rights of citizens under this government, could not be against paying a small tax on their admission to this right. mr. macon thought this tax would fall very heavy upon persons who came into this country to live by their labor--many of whom were not able to pay their passage, but were indented by those who brought them for a number of years; and who, if this tax were paid, would have so much longer to serve. mr. brooks did not see this objection, as such persons might labor all their lives without becoming naturalized. mr. gordon said, that by the naturalization act, no foreigner could be admitted to the rights of a citizen until he had been five years in the country, and therefore the objections of the gentleman from north carolina could not have any weight. the amendment was carried. mr. swanwick moved to strike out five dollars, and insert ten, for licenses to practise as a counsellor, attorney, &c. he thought, if these gentlemen were taxed at all, ten dollars would be as low a sum as they could well fix upon for the purpose. mr. varnum thought the tax should be much higher, if imposed at all. he spoke of the high tax laid upon the professors of the law in massachusetts. the amendment was carried, there being in favor of it. mr. cochran wished the tax to extend to lawyers who practised in the state courts, as well as to those who practised in the courts of the united states. mr. nicholas objected to this proposition. the lawyers, in some of the states, were already very highly taxed; besides, he doubted the right of the united states to tax the lawyers of the state courts, as they were necessary in the state governments. mr. swanwick did not expect any objection could have been made to a tax so reasonable, especially when the bill proposed to tax merchants so heavily; they would not be able to turn themselves without a stamp, and surely the lucrative profession of the law could not think much of paying this low tax. it was said, indeed, that the merchant did not ultimately pay the duty, but the consumer; and he doubted not the lawyers would not fail to find out a way of making their clients pay the duty. mr. dennis objected to this tax on the same ground with the gentleman from virginia. if a tax of this kind, he said, were laid upon the lawyers of the state courts, it might be extended to any other officer of the government, and thereby annihilate the state governments. mr. livingston was in favor of the amendment, because he thought the state lawyers a fair object of taxation. he denied that it would be unconstitutional, or that it would operate hardly upon a particular class of men. it was not laid upon any particular class; but upon an instrument which, indeed, to exercise their professions, lawyers would be obliged to have; but it might as well be said that the tax upon rum and sugar would fall heavily upon the sellers of those articles, and that therefore no rum or sugar would be sold. the one tax fell upon the consumer, and the other upon the client. in the state of new york, mr. l. said, the lawyers were not taxed at all. mr. mcdowell said, when he seconded the motion for striking out "five" for the purpose of inserting "ten" he did not intend the tax to be extended to the practisers in state courts; nor did he think the constitution would warrant such an extension of it. mr. sitgreaves was in favor of the amendment; he wished to fix the principle. he thought that the state lawyers were a fair object of taxation, and that the profits of their business would very well bear it. but there was reason for making a distinction between the two cases. he thought there would be a hardship in extending the tax to practisers in county courts, as that would cause it to fall in some places very heavily. for instance, in pennsylvania, there must be a separate admission into every court of every county; so that one man would probably have to pay to the amount of from two to three hundred dollars on account of this tax. he hoped the motion would be postponed for the present, and modified. he would do it himself, if time were given. the motion was withdrawn. mr. sitgreaves said, he understood that deeds for the conveyance of lands would have been amongst the articles taxed. he thought such a tax would be an eligible one, and in order to learn what were the objections to it, he proposed to add to the bill, "any deed for the conveyance of real estate ---- dollars." mr. r. williams said, this proposition had been rejected in the committee of ways and means, on the ground that such a tax would clash with the jurisdiction of the states. he had the same objection to this that he should have to laying a tax upon the state lawyers. to say a deed, which was legal by the laws of a state, could not be received in evidence, except it was stamped, would be tantamount to the repealing of a state law. mr. w. smith said, this subject had been frequently under discussion, both in the committee of ways and means, and in that house. on this occasion, the majority of the committee of ways and means was against laying a tax on deeds. he was in the minority. there was a provision, mr. s. said, which declared that no paper upon which a duty was imposed by this act should be admitted in evidence; but there was afterwards a clause which allowed them to be admitted, on payment of ten dollars over and above the duty thereupon payable. he thought the tax would be a very good and a very profitable one. mr. coit thought this was a tax which should be gone into with great caution, since, if it were carried, it might be the means of losing the whole bill. he thought the bill would be better passed without this provision; and if it were found expedient, it might be added hereafter. mr. giles was opposed to this amendment, as interfering with the governments of the several states. all lands (except such as had been sold by the united states) were held from the states; and if this tax were to be agreed to, he believed the state courts would not refuse to admit a deed in evidence which was not stamped. nothing would give so much alarm to the states as a subject of this sort. mr. sewall did not understand the distinction made between titles to land and titles to money. he thought the objection made to a tax on a deed, might be made with equal propriety to a tax on a bond or note. if they had a right to say these should not be received in evidence in a state court, unless they were stamped, they had a right to say the same with respect to a deed. except it could be shown that the farmer was less able to pay than the merchant, he thought no other objection had any weight. mr. r. williams thought there was a great difference between a note of hand and a deed. the state had nothing to do with the former, but much with the latter; since every state held grants of its lands, and a man must show his title from the original grant, before his title could be said to be a good one. he did not doubt the people being able to pay the tax; it was the principle which he contended against, which, if carried into effect, would cause a clashing of the authorities of the two governments. if the united states could lay a tax of this sort, they might lay a tax upon every commission issued by a state. mr. nicholas did not see the smallest difference between the two cases which had been stated. and when they came to the th section, he should endeavor to prove that to say a piece of paper should not be received in evidence in a court, which was lawful to be received by the laws of the state, would be a violation of state sovereignty. he was not of opinion, with the gentleman from connecticut, that they should take up the subject partially, rather than not pass the bill. he thought it best to consider a tax upon its broadest basis. it was not fair to exclude any thing which stood upon the same ground. he wished the principle to be thus fairly tested. he should, therefore, vote for the tax on deeds. mr. lyon hoped, that if this tax was agreed to, purchases of a small amount would be excluded. mr. swanwick said there would doubtless be a difference made in the duty between large and small purchases. he also disagreed with the gentleman from connecticut. the principle, he said, was either right or not; if it were right, it should be made general: if not, it ought not to be adopted. the question was put, and negatived-- to . on motion, the committee rose, and had leave to sit again. tuesday, june . _stamp duties._ bank notes. the house resolved itself into a committee of the whole on the bill laying duties on stamped vellum, parchment, and paper, when mr. nicholas moved to strike out the clause exempting bank notes from duty, as he could see no reason why notes upon which a profit was made, should be exempted from duty more than others. he trusted all notes would be placed on the same footing. mr. w. smith hoped gentlemen did not mean, by moving to strike out this exemption, to destroy the bill. he thought the observation of the gentleman from connecticut yesterday, against embarrassing the bill by doubtful objects, had weight. on this ground, though he was before of opinion deeds ought to have been inserted, he did not vote for inserting them. he trusted the gentleman had not fully considered the subject, and that when he did so, he would not persist in his motion. mr. nicholas believed if the favorite object of every gentleman were to be exempted, there would be nothing left upon which to lay a tax. if to oppose this, were to defeat the bill, he meant to defeat it; as he wished the tax to go to all objects of the same kind. he had no idea of favoring one interest at the expense of another; he hoped, therefore, his amendment would be agreed to. mr. lyon expected the gentleman from south carolina was about to have given some reasons why bank notes ought not to be taxed as well as others; but he was disappointed. he believed those who issued these notes got a good profit from them, and that it was, therefore, reasonable they should pay their proportion towards the support of government. mr. w. smith thought the tax an improper one. banks were taxed in another part of the bill, on the transfer of their shares. a tax on bank notes, he said, would introduce a vast deal of confusion throughout the country. as for himself he did not care any thing about it; but he believed, if it were agreed to, it would produce so many objections against the bill as to prevent its passing. mr. brooks was against stamping bank notes, as they were not stamped in any country whatever.[ ] indeed they were different from other notes, as they were the representatives of specie; they might, therefore, as well stamp dollars or guineas. in short, the subject was too important and intricate to be gone into at this late period of the session. mr. venable said, in proportion as the tax was general, it would be just. what was the object of the bill? it was to tax that right which an individual possesses in society, of transferring his property, and the evidences of it; it was also to tax him for the right he had of using his credit. though the argument of the gentleman last up might appear specious, that a bank note was the representative of specie, it was not very solid; it was the representative of the credit of the bank, and circulated for its interest. an individual, if he had sufficient credit, might issue notes as well as a corporation; and, in that case, his notes would be charged with the duty, whilst those of a corporation would not. from whence, said mr. v., is this reasoning drawn? it was drawn from the doctrine of favoritism--it was meant to favor the moneyed interest, which was already sufficiently encouraged by their incorporation. there seemed to be no objection to the principle; but merely to the convenience of the thing. if it could be shown that the tax would materially operate upon the circulation of bank notes, so as to injure the operation of money transactions, it might have some weight with him; but it was none, to say this bill must pass, and therefore let us avoid any thing in which there may be any difficulty. such assertions went only to this, where you can tax the property of an individual, do it; but do not meddle with corporations, as this would be attended with some difficulty. he wished, if the bill passed, that it should operate equally. mr. coit wished the gentleman from virginia would withdraw his motion, until he took the sense of the committee upon one which he proposed to make, and which was calculated, if agreed to, to supersede the one he had made. he would state what it was. it was his opinion that small notes should be exempted from duty. he should propose, therefore, that there should be charged on all notes exceeding fifty dollars and not exceeding one hundred dollars, ten cents, and that all of less value should go free. after a few remarks upon this motion, in which it was observed that it would defeat the bill entirely, as it would only be to make so many more notes at fifty dollars, if the sum were larger, mr. coit consented that the fifty should be struck out and left blank; when the question was taken and negatived, there being only twenty-five votes for it. mr. nicholas renewed his motion. mr. sitgreaves hoped it would not prevail. it had been admitted that if it could be proved that the stamping of bank notes would embarrass their circulation, it would be a good objection to the tax. he believed he could easily show that it would not only impede their circulation, but depreciate their value. the tax would not certainly be made to operate upon notes already issued, but upon those issued after the act took place; so that it would be necessary that every citizen throughout the united states should be acquainted with the date of their law, which would do away all confidence in bank paper. the result of this uncertainty would be that the banks would have to call in all their outstanding notes, which would cause an immediate depreciation of their value. he trusted, therefore, that so objectionable a measure would not be entered upon. mr. gallatin said, he had had his doubts with respect to the propriety of stamping bank notes; he was not sure whether it might not have a dangerous effect on their circulation. on a further consideration of the subject, however, all his doubts had vanished. he now thought this amendment essential, just, and right. indeed, when they proposed to lay a stamp duty upon all bills and notes, there appeared to be no good reason why the notes of any incorporation whatever should be excepted. he had heard only one objection; which was, that these notes differed essentially from others, because they were the real representatives of specie kept in the bank from whence they were issued. he could not see the distinction endeavored to be drawn. private notes were always given for some consideration, whether for cash or other property, was of no consequence to them. indeed, if they turned their attention to the nature of bank notes, they would be found to be a very fair object of taxation. where an individual gave his note, it was not likely that he would derive any profit from it; many of such notes were what was called "accommodation notes;" all were acknowledgments of debt, and therefore no proofs of wealth; but bank notes were never issued except to produce a profit to the bank; therefore, to exempt them from duty, would be to exempt those which were best entitled to pay. the only objection would be, any inconvenience which might take place to counterbalance the benefit to be derived from the tax. it had been supposed that a depreciation would take place in the value of the notes in consequence of this tax. in order to show that this was not probable, he supposed the tax would be laid. bank notes were issued and re-issued; but when an individual gave a note, after it was paid, there was an end of it. bank notes might be issued twenty-times, or oftener; it was necessary, therefore, to tax them in a different way from other notes. he supposed the same provision might be adopted here as was adopted in england. they might be allowed to be issued for a certain number of years--say three. this would remedy every kind of inconvenience arising from reissuing. as to notes now in circulation, the way to prevent inconvenience would be to fix the time after which all notes should be renewed by stamped notes. the consequence would be, that all notes would, by degrees, be returned to the bank, and no difficulty would arise from doing so. six or nine months might be allowed for this purpose. this was the way in which all the banks in england, except the bank of england, were subject to the stamp duty; that bank, he believed, had paid a certain sum to be excused from the tax. perhaps the same privilege might be allowed here. mr. nicholas noticed what had fallen from the gentleman from pennsylvania on the subject of depreciation, and showed by the regulations under which the tax would be paid, that it could not take place. mr. rutledge thought bank notes a proper object of taxation, and had not heard one good reason why they should be exempted from the proposed duty. the arguments of his colleague (mr. smith,) that bank notes now in circulation would be affected, and their currency checked, he would answer, by observing that the duty could not operate upon notes now in circulation; it was not proposed to have them called in, but to have those stamped which shall be issued after a certain day. he did not think the weight and importance which generally attach to the observations of the gentleman from pennsylvania (mr. sitgreaves) attach to those now offered by him. with respect to the circulation of bank notes being embarrassed by the necessity there would be for the people at large being acquainted with the date of the law, the objection would apply to private as well as bank notes. the people throughout the country must inform themselves, and the most ignorant will inform themselves of the date of the act; and whenever a bank note or a private note shall be offered to them, they will always inquire if it was issued subsequent or previous to a certain day. the gentleman from new york (mr. brooks) was certainly incorrect in saying that "bank paper was not stamped in any country whatever." in great britain, mr. r. said, the paper of all private banks is stamped; that of the bank of england has been exempted from the stamp duty, by the bank having paid the government a sum, in gross, by way of commutation. although the moneyed interest has always been well and largely represented in england, yet bank notes are taxed there, and the circulation of them has not been embarrassed by this duty; on the contrary, the system of banking has been wonderfully extended throughout that kingdom. in every part of it bank notes are current; every town and village has its banks; they are as universal as their churches. mr. r. asked, where would be the propriety of taxing notes issued by fifty individuals in their individual capacity, and exempting those issued by them when they associated, called themselves a banking company, and issued notes to three times the amount of their capital? the measure seemed to him unwise, and he was sure it would be unpopular. he could not conceive why people who had no other property than stock, which, in many instances, yielded an interest of fifteen per cent., should not contribute to the support of government. mr. swanwick.--the greatest objection which the banks in england seemed to have to the tax, was, that it might ascertain the quantity of notes they had in circulation. in order to prevent this, the bank of england commuted with government for a certain sum; but the notes of all the private banks were stamped. he thought it reasonable that this kind of notes should be stamped as well as others, though he would have the tax low; for he saw no reason why merchants should pay, and bankers be excused from the duty, since great emolument was derived from these notes, by the consent of the community, and the community, in return, had a right to expect assistance from the banks. mr. w. smith believed, if an original proposition had been brought forward to tax bank notes, it would have been thought a very serious thing, and they should have paused before they consented to the proposition. gentlemen who advocated this proposition, allowed it would require many provisions to carry it into effect. what those provisions were he could not pretend to say. he thought bank notes had been too much confounded with notes of individuals, and they were quite different things. those of individuals were mostly larger, the greatest part of bank notes were for five dollars. notes of individuals, if not stamped, could not be received in evidence; but he did not know what must be the penalty on bank notes being issued without stamp. besides, he said, to lay a duty upon the notes issued by the bank of the united states would be a violation of its charter, for, by that charter, it was said, the notes of that bank should be received at the custom-house in payment of duties. it had been said a commutation might be allowed, but that would be equally contrary to the charter; besides, if such a thing were to be done, he did not know who could do it; it would not be the proper business of the president, and that house would have difficulty in saying what would be a proper sum to be paid for the purpose. he again feared the introduction of this principle would destroy the bill. mr. coit did not think it was quite so clear a thing as some gentlemen seemed to think it, that bank notes ought to be stamped. he did not believe the analogy between the bank and private notes was so strong as had been represented. if the facts were as represented, that every bank note was to be considered as producing a profit to the banker, there would be good ground for the tax; but he was of opinion this was not the case. for instance, if the bank gave their note for one hundred dollars, it was equal evidence with the note of an individual, that they had received the value of one hundred dollars. but if they went further, it would be found the analogy did not hold. the note of the individual was at a certain date, but that of the banker was on demand; and they were every day liable to be called upon for the money of which the note was the representative; so that they were obliged to keep the money, or money at least to a great amount, ready to take up their notes whenever presented. banks could not, therefore, be considered as receiving a profit on all the notes they issued; but only upon the difference between the amount of notes issued, and the cash they are obliged to keep by them to answer their demands. the analogy, therefore, did not hold; and, if bank notes were taxed, it must be upon a different principle from that on which the notes of individuals are taxed. mr. potter was in favor of the amendment, and he trusted that gentlemen who were always ready to go into every species of expense, would not flinch when the object was to raise money. he had this morning voted for a bill laying additional tax on licenses, which he believed would be found in some degree oppressive, but he did it because he knew revenue was wanted. he hoped the gentleman from south carolina would, on this occasion, concur in the proposed tax. he doubted not unexceptionable means might be devised for collecting it; if not, it might be given up. mr. harper was against the amendment, not because he was satisfied bank notes were not a proper object of taxation, but because he did not wish to embarrass the bill with a subject which they had not time to consider. mr. swanwick again spoke in favor of the tax. mr. otis was against the amendment; not because he thought such a tax would be improper, but from the difficulties which would attend the carrying it into effect. besides, he said, if the notes were to revert to the bank every two or three years, it would cause a run upon them for cash, instead of renewed notes, which might be very inconvenient. mr. venable did not think the run upon the bank which the gentleman had mentioned could take place, as the notes would have to be renewed three years from the time issued, and all their notes would not be issued on one day. mr. v. again insisted that this tax should be general; and if they had not time to make it so, it ought to be put off till they had. not to include bankers would be to lay a tax upon the people whose complaints of its hardships could not be heard. he deprecated this as unjust. mr. harper could not conceive that the great body of merchants and farmers throughout the united states were people who could not make their complaints heard, if they had them to make. the proprietors of banks, mr. h. said, already paid taxes in a variety of shapes; many of them were merchants, and would, of course, pay the tax imposed on the notes of individuals. mr. brooks was against going into a tax on bank notes at present, but denied that there would be any cause of complaint from the people on account of the taxes imposed by this bill. he wished to make a beginning with a stamp tax at present; it might not be completed these seven years. gentlemen might as well go on and propose a tax on newspapers, which, whatever might be said against it, he believed might be laid without infringing the liberty of the press; but a thing of this kind would require a great deal of detail. mr. claiborne was in favor of including bank notes; not to do this, he said, would be to catch _small fish_, and let the _large ones_ pass. mr. gallatin said that the provisions for laying this tax would be by no means difficult. indeed, three-fourths of the bill was copied from the british statute, and that part respecting bank notes could be as easy copied as any other part. the observations respecting the charter of the bank of the united states, were not deserving of a reply. there was only one of two things which could be done, either to tax bank notes, or to excuse all other notes from the tax. mr. sitgreaves could not submit to hear that it was the intention of those who opposed this motion, to screen the moneyed interest of this country from paying a tax. he had no such views. he had no objection to tax the banks in proportion to the amount of their business; but he could not agree to its being done in this way. if gentlemen would estimate how much the stamp duty of a bank would produce to the united states, he would vote for a sum of this kind by way of commutation. charges could rarely be made against the side of the house with whom he generally acted, for not being willing to vote for revenue; a contrary charge was more frequently made. he trusted the amendment would not be agreed to; but that if the tax were laid, it would be by way of commutation. the question was taken and carried, there being votes in favor of it. the committee rose and had leave to sit again. the resolution respecting an adjournment was received from the senate, and disagreed to. the disagreement being read, mr. giles moved the same resolution filled with monday next; but mr. williams opposed it, and moved to adjourn. thursday, june . _stamp duties._ bank notes. the house went into a committee of the whole on the bill for imposing stamp duties, when the clause of mr. gallatin yesterday proposed to the committee, on the subject of bank notes, being under consideration, mr. otis supposed that at least two-thirds of the whole amount of paper issued by the banks, returned and were re-issued every year, and thus the banks must pay tax upon two-thirds of their capital in the first year after the law passed, and which, according to a rough calculation, relation being had to the different denominations of notes, amount to nearly one per cent. on their capital. the tax ought to be levied upon such new notes only as should be issued hereafter; all that were now in existence were protected by the charter, and any law relating to them would be retrospective; and as one-fifth of the whole number of notes would be renewed every year, a tax upon them would be found to bear as hard as upon other notes and bills, which seldom comprised more than the fifth part of the transactions of an individual. it ought also to be considered, that the paper issued by the bank generally became worn and dirty, and incapable of receiving a stamp, so that in less than two years the whole amount of paper must be re-issued, and the entire tax assessed in the same period. this plan would also be inconsistent with that of a commutation, which had been proposed. mr. dayton (the speaker) did not think that this proposition precluded the provision of a commutation. he was in favor of taxing bank notes, but he wished also to hold out a commutation, and such a one as should induce all the banks to embrace it; for, if this were not the case, they would not be taxed equally, as the notes of banks did not bear a just proportion to the amount of their dividends. this clause would not, therefore, preclude the commutation, but render it proper, and a clause could be brought in excusing such banks from the duty as came into the proposed plan. mr. gallatin said, his ideas corresponded exactly with those of the gentleman who had just spoken. the scheme suggested by the gentleman from massachusetts, of not taxing the notes at present in circulation, would excuse bank notes from all tax, as, according to his own account, only about one-fifth of the notes issued came in in the course of a year, so that it would be five years before a new tax could operate upon all their notes, and it was probable the bill might not pass for more than three or four. that gentleman supposed that bankers' notes ought not to be charged more than others; if this were the case, they might be reckoned to run for four or five years, while those of individuals were at six and twelve months. the note of an individual, for fifty dollars, was to pay ten cents; he calculated a bank note, therefore, for a like sum, which he supposed, upon an average, to run four years, thirty cents. with respect to the notes at present in circulation, mr. g. said, they ought all to be called in before a certain time, and after that day no note should be negotiable which was not stamped. the gentleman from massachusetts was not correct when he said that this tax would amount to one per cent. upon the capital employed in banks. the calculation of the amount of the tax upon a bank which he had made, would amount to $ , a year, whereas one per cent. upon the capital of the bank of the united states would amount to $ , ; but he said (as he had before stated) that the notes issued by a bank were not equal to its capital, or any thing like it. he could not, indeed, say what the amount of the notes of the bank of the united states might be which were received for duty, from one end of the united states to the other; but he knew banks in general, in large cities, did not employ more than two-fifths of their capital in this way. he knew it to be a fact with respect to a bank of the largest property in the united states, except the bank of the united states. he thought of proposing the commutation to be one per cent. upon the amount of the dividend paid by each bank, which he supposed would be deemed a reasonable sum. mr. otis explained. mr. sewall thought the observation of the gentleman from connecticut yesterday, as to the nature of bank notes, had weight. he agreed with him that they were very different from the notes of individuals, as they were always obliged to keep cash in readiness to take up their notes, while individuals, knowing exactly the time when the money for theirs would be wanted, could make use of it in the mean time. therefore, if they taxed bank notes, they ought not to tax them in the same proportion with those of individuals at a certain date. notes of individuals, under twenty dollars, were to be exempt from duty, while every note issued by a bank was proposed to be taxed. every banker's note of fifty dollars was to be charged with thirty cents, while those of individuals, which might run for two or three years, were charged only with ten cents. every three or four years they would have to pay this sum. if a fair commutation were to be made, they should first fix the tax upon just principles. mr. nicholas thought if there was no objection to the commutation, there could not reasonably be any made to the tax, because if the commutation were reasonable they would not choose to pay the tax; but, if they should choose to pay the tax, instead of the commutation, it would be evidence that the tax was too low. mr. w. smith did not see the force of the argument of the gentleman last up. as the commutation was to bear some proportion to the rates of duty, it became necessary to fix the rates upon a fair basis. if the rates were fixed too high, they ought to reduce them. he did not see the propriety of selecting moneyed corporations for the purpose of laying a high duty upon them. he moved to strike out the three cents for every five dollars, and leave it a blank. mr. dayton hoped this proposition would be agreed to, as by a vote upon the question in blank they would fix the principle whether or not bank notes were to be taxed, and the scale could be afterwards fixed. if there was the difference alleged between bank notes and the notes of individuals, it would be sufficiently considered in the commutation. he should not, indeed, be willing to agree to any scale without a commutation, for the reason he had before mentioned. for, said he, take the bank of the united states and the bank of north america, and the notes issued by them bear no sort of proportion to their respective capitals. if the tax were to be laid upon the notes issued, the bank of the united states would pay a much larger sum than the other in duty. mr. gallatin observed that the gentleman from south carolina had said they were about to select moneyed corporations as objects on which to lay a high duty. he had made a calculation to show that this was not the case, but that what was proposed was no more than just and reasonable, and that instead of the tax being one per cent. upon their capital, it was not more than one twentieth or one twenty-fifth part of one per cent. he would state the facts, and beg gentlemen to correct him where he was mistaken. in the first place he would state the capital of all the banks of the united states at $ , , ; the whole amount of bank notes at less than $ , , . he would divide these $ , , , one-half into notes under fifty dollars, and one-half above that sum as follows: $ , , in notes under fifty dollars, which would give about eighty thousand notes, (for though they would be of different sizes they paid in the same proportion,) at thirty cents, $ , $ , , of one hundred dollars and upwards, at fifty cents, , $ , , of three hundred dollars and upwards, , ------- $ , allow for mistakes, , ------- which includes all the notes in circulation in the united states, $ , as to the principle of taxation itself, that bank notes of fifty dollars should pay thirty cents when notes of individuals only pay ten cents, justice requires the difference, on the same principle that notes of sixty days had been charged with only two-fifths of the duty charged upon others. mr. g. stated the following account of a bank in philadelphia, whose capital was $ , , , and to which government owed nothing; which, he said, would apply to every other bank in the same circumstances, with little variation: to the original fund, $ , , to deposits, about , to bank notes, , ---------- total debts, $ , , ---------- by notes discounted, $ , , [ ] by cash in vault, , ---------- total credits, $ , , ---------- as banks were thus able to transact business to the amount of three millions of dollars, though their original fund was only two millions, he accounted for their sharing dividends of nine per cent. on their stock. it would be observed that the two millions capital were not touched for notes, and yet they were charged with selecting these bodies of men upon whom to lay a heavy tax. mr. g. concluded by saying he had no prejudice against banks. he knew they were liable to abuse, but, upon the whole, he believed them to be useful. he believed the scale he had formed was correct, but should withdraw it for the present, in order to give an opportunity of trying the principle. friday, june . _duties on stamps._ the proposition of mr. gallatin for admitting of a composition from the banks in lieu of the tax, came next under consideration--the blank in which was moved to be filled with one per cent.; when mr. w. smith said, if the gentleman from pennsylvania was right in his calculation yesterday, the whole amount of duties arising from the banks would be $ , a year, and therefore they ought not to go farther in fixing the composition, whereas one per cent., according to the same statement, will produce more than double that sum; for, if the whole capital of the banks in the united states be twenty millions, and their average dividend ten per cent., that will produce two millions, which at one per cent. will give $ , . he therefore moved, in order to bring the matter nearer to a fair equivalent, to strike out one per cent. and insert one-half per cent. mr. nicholas said what the duty would produce was uncertain; they could with more correctness say, that one per cent. was a reasonable composition on the dividends, than what might be produced by the duty. he knew of no tax laid upon property that could be made for less than five per cent. to clear the expense of making it. mr. w. smith thought they should first fix the rates to be paid on bank notes before they determined upon the composition. mr. gallatin said, when the rates were before under consideration, the gentleman from south carolina objected to it, because, if fixed too high, he said it would influence the composition. he therefore moved to have it struck out; but now, when a composition was under consideration, he turns round and says it would be better first to fix the rates. he thought one per cent. a reasonable composition, and that it would be best first to fix that. mr. smith denied that he wanted first to fix the composition; it was his wish to strike out the rates, to reduce them, that he moved to leave the sum blank. the question was put and carried, there being votes in favor of it. mr. gallatin then renewed his motion for fixing the scale of duty to be paid on bank notes. it was, on notes not exceeding fifty dollars, three cents for every five dollars; those not exceeding one hundred dollars, fifty cents; those above one hundred dollars, and not exceeding five hundred dollars, one dollar; for all above five hundred dollars, two dollars. mr. dayton said there were many notes under five dollars, for which there was no provision. mr. gallatin thought "the rate of" would have included the small ones; and, to dissipate every doubt on the subject, he moved to replace "three cents for every five dollars," with "three-fifths of a cent for every dollar." carried, to .[ ] monday, july . the bill for laying a stamp duty was read a third time, and the blanks filled up, viz: that for fixing the time of the act taking effect, with the st day of december next; the fine and imprisonment for counterfeiting stamps, &c., with $ , and seven years' imprisonment; and the time for which the duration of the act was limited, with five years. the yeas and nays being taken on the passage of the bill, were--yeas , nays , as follows: yeas.--john allen, james a. bayard, david brooks, james cochran, joshua coit, william craik, samuel w. dana, james davenport, john dennis, geo. dent, thomas evans, abiel foster, dwight foster, jonathan freeman, james gillespie, henry glenn, chauncey goodrich, william gordon, roger griswold, john a. hanna, robert goodloe harper, thomas hartley, william hindman, hezekiah l. hosmer, samuel lyman, james machir, william matthews, daniel morgan, lewis r. morris, harrison g. otis, elisha r. potter, john read, john rutledge, jun., james schureman, samuel sewall, william shepard, thomas sinnickson, samuel sitgreaves, jeremiah smith, nathaniel smith, william smith, (of charleston,) george thatcher, richard thomas, mark thomson, john e. van allen, peleg wadsworth, and john williams. nays.--george baer, jr., abraham baldwin, david bard, lemuel benton, thos. blount, nathan bryan, dempsey burges, samuel j. cabell, christopher g. champlin, thomas claiborne, matthew clay, john clopton, thomas t. davis, john dawson, lucas elmendorph, john fowler, albert gallatin, jonathan n. havens, david holmes, walter jones, edward livingston, matthew locke, matthew lyon, nathaniel macon, blair mcclenachan, joseph mcdowell, john milledge, anthony new, john nicholas, josiah parker, thompson j. skinner, william smith, (of pinckney district,) richard sprigg, jr., richard stanford, thomas sumter, abram trigg, john trigg, philip van cortlandt, joseph b. varnum, abraham venable, and robert williams. tuesday, july . _duty on salt._ mr. allen called up the resolution he yesterday laid upon the table, for laying an additional duty on salt. mr. gallatin moved to postpone the consideration of this resolution until the second monday in november. some debate took place on this question; and, when it came to be taken, the house was equally divided, there being votes for the postponement, and against it. the speaker decided against the postponement, and the resolution was referred to a committee of the whole immediately. the house accordingly resolved itself into a committee of the whole on this resolution; when mr. allen moved the blank cents per bushel be filled with twelve. mr. swanwick wished the sum to be seven. mr. allen consented to make it eight. mr. sitgreaves hoped it would be twelve. the question was first taken upon twelve, and negatived, there being only votes for it. it was next taken upon eight, and carried, to , and then upon the resolution as amended, and carried by the same numbers. the committee rose, and the house took up the resolution. after a few words from mr. lyon against the tax, and from mr. williams in favor of it, mr. w. smith went at considerable length into a defence of the measure, in the course of which, he said, they had already agreed upon appropriations to the amount of $ , or $ , , and were not certain of any revenue to meet the expenditure. the license act, he believed, might produce from $ , to $ , , and the stamp act from $ , to $ , , if they should be passed; but he considered this as doubtful. but if these laws were passed, this tax on salt was necessary to keep up the equilibrium of taxation;[ ] for the stamp act would almost exclusively fall upon commerce and large cities; this would principally be felt by the agricultural part of the union; and, if it were not agreed to, they must have a land tax. mr. shepard said, no tax would operate so equally as a salt tax, as every citizen must make use of it in a smaller or larger quantity. mr. gallatin opposed this tax on the same ground which he heretofore opposed it, as oppressive to certain parts of the union, and no way affecting others, and therefore wholly unequal, and particularly as it bore heavy on the poorer classes of society. he was against it also, because it was not proposed that the amount of this tax should go towards a reduction of the public debt, but merely to encourage expense in the government; for he believed if they filled the treasury with money, means would be found to expend it. indeed, if the treasury had not been at present in rather a low state, he believed they should have gone into most of the expensive measures proposed to them this session. he allowed the tax would be productive, as a tax upon bread, air, or any necessary of life, must be productive. if this tax, however, were to be agreed to, he should wish to make an amendment to the present proposition. at present the drawback allowed to the new england states, on account of salt used in the fisheries, amounted to about $ , a year, though by the statements it appeared there should only have been allowed $ , . to rectify this, he proposed the following proviso to be added to the resolution, viz: _provided_, that the allowance now given upon vessels employed in the fisheries, shall not be increased. this amendment was opposed by messrs. harper, sewall, dana, and kittera, on the ground of its being an unfair way of introducing the proposition, as no one expected it; they were not prepared to meet it; the correctness of the statement was doubted; and, if it were correct, it was said, the proper way of doing the business would not be to pass the present law without a drawback, but to reduce the former drawback and make it less on this occasion. the motion was supported by the mover, and messrs. venable and livingston; but, after some discussion, mr. gallatin withdrew it, in order to give gentlemen time to make themselves acquainted with the fact he had stated; but he expressed his intention of renewing the proposition when the bill came in. the question then returned upon the original resolution; when mr. harper went at length into a defence of the measure, (in the course of which he charged mr. gallatin with being mistaken $ , as to the amount of the drawback allowed,) and insisted that it was a fair and proper tax, and that so small an advance upon the present duty could not operate oppressively upon any part of the community. mr. nicholas followed in opposition. he dwelt considerably on the unjust and unequal manner in which this tax would operate. he said he did not view this question as deciding merely whether an additional tax of eight cents should be laid upon salt; but whether that necessary of life should be called upon for every thing government should want. he was in favor of a direct tax, which should fall equally, though it might, in the origin, be attended with some considerable expense; but, if they went on raising partial sums in this way by indirect means, the expense of instituting a direct tax would always be an obstacle, and indirect taxes would always be had recourse to. he did not believe it to be absolutely necessary to provide a revenue this session, as he believed money might as well be borrowed without as with additional revenue, and at the next session, the subject could be fully gone into. mr. lyon spoke of the discontent which had always been shown in the part of the country from whence he came, which, he said, would be greatly increased by this addition. it was not only a duty of eight cents, every cent would be made four before the salt reached them. there was no kind of tax which his constituents would not sooner bear. it had been said that a land tax would cost twenty-five per cent. to collect it; but what was twenty-five compared with three hundred per cent.? nor did he believe this tax would prevent a land tax. he believed they should go on taxing the people until they would be greatly dissatisfied. he would much rather a tax of eight cents was laid upon tea, which would produce an equal sum. the question was taken by yeas and nays, and decided in the affirmative-- to . wednesday, july . _duty on salt._ the house went into committee of the whole on the bill for laying an additional duty on salt; when mr. gallatin moved to strike out all that related to the allowing of a drawback to vessels employed in the fishing trade, on the ground that he yesterday stated, viz: that the allowance at present made was too large by $ , a year, taking the year for his data; but it appeared that in the year there was a deficiency in that trade, owing principally, it was supposed, to the great demand for seamen in the merchant service. he, therefore, would take the calculation of the gentleman from south carolina, (mr. harper,) made yesterday, and, instead of calling the amount of drawback allowed $ , , he would state it to be $ , ; and even then, he said, the drawback at present allowed would exceed by two thousand dollars the drawback to which they would be entitled, if the present duty took place. he spoke generally against the tax as oppressive to the back country; but if the gentleman from massachusetts, and others, were determined to increase the tax, he should wish their part of the country to pay their share of it. this motion was supported by messrs. venable, nicholas, clay, mcdowell, and macon. it was opposed by messrs. sewall, otis, harper, coit, brooks, kittera, j. williams, and dayton. the calculation of the quantity of salt estimated to be necessary to be used for a quintal of fish, (one bushel,) was said to be stated too low; that the sum allowed was not only meant as a drawback of the duty, but also as a bounty on the fishing trade--as being a nursery for seamen, and serving as a kind of naval militia for the united states. if it should appear, however, that the present allowance was too great, (which, by some gentlemen in favor of this motion, which was in blank, seemed to be acknowledged,) a less allowance might be made in this bill; but they could not consent to the bill passing without a drawback. the question for striking out the clause was taken, and negatived-- to . mr. coit moved to fill the blank with per cent., instead of - / , which was the drawback allowed by the present law. mr. hartley thought this sum too high. mr. williams moved - / per cent. which was carried without a division. mr. nicholas moved a limitation clause, to continue the act in force for two years, and from thence to the end of the next session of congress. this motion was carried-- to . the committee rose, and the house agreed to the amendments. the yeas and nays were called upon the limitation clause, and were taken, and stood--yeas , nays . the bill was ordered to be engrossed for a third reading this day; and before the house rose, it received it, and passed. the yeas and nays on its passage stood to , as follows: yeas.--john allen, james a. bayard, david brooks, stephen bullock, john chapman, christopher g. champlin, joshua coit, william craik, samuel w. dana, james davenport, john dennis, george dent, thomas evans, abiel foster, dwight foster, jonathan freeman, henry glenn, chauncey goodrich, roger griswold, robert goodloe harper, william hindman, hezekiah l. hosmer, james h. imlay, john wilkes kittera, samuel lyman, william matthews, lewis r. morris, harrison g. otis, elisha r. potter, john read, john rutledge, jun., james schureman, samuel sewall, william shepard, thomas sinnickson, samuel sitgreaves, jeremiah smith, nathaniel smith, william smith, (of charleston,) john swanwick, george thatcher, mark thompson, john e. van allen, peleg wadsworth, and john williams. nays.--abraham baldwin, david bard, lemuel benton, thomas blount, richard brent, nathan bryan, dempsey burges, samuel j. cabell, thomas claiborne, matthew clay, john clopton, thomas t. davis, john dawson, lucas elmendorph, john fowler, albert gallatin, james gillespie, wm. b. grove, john a. hanna, jonathan n. havens, david holmes, walter jones, matthew locke, matthew lyon, nathaniel macon, blair mcclenachan, joseph mcdowell, john milledge, daniel morgan, anthony new, john nicholas, thompson j. skinner, william smith, (of pinckney district,) richard sprigg, jun., richard stanford, thomas sumter, abram trigg, john trigg, joseph b. varnum, and robert williams. saturday, july . _laws in the german language._ mr. holmes said that he thought it necessary, in order to enforce a general compliance with the laws of the united states, that they should be printed in the german language, as well as in the english, since there were very many inhabitants in this country who could read no other. he therefore proposed a resolution to the following effect: "_resolved by the senate and house of representatives of the united states_, that a number of copies of the laws of this session, not exceeding eight thousand copies, shall be printed in the german language, and distributed by the secretary of state amongst the executives of the several states, for the information of the german inhabitants of each state respectively." mr. lyon thought it would be proper to pass a resolution of this kind. he did not know what number might be necessary. he also thought that some measures should be taken for a general publication of their laws in the english language; at present, it was merely by chance if the people in his district came to a knowledge of them. he thought all laws of general import should be inserted in every newspaper throughout the union. mr. coit said if they were to promulge their laws in the german language, it would be necessary that they should all become critically acquainted with it, for if they were to authorize any translation, great mischiefs might arise from its not being correct. mr. gallatin said that the weight of the objection urged by the gentleman last up, had always been thought sufficient in the legislature of pennsylvania, in which state there was a greater proportion of germans than in any other. there was also another objection to the measure. if it were to be passed, it must be accompanied with an appropriation law, which the advanced state of the session would not admit. the resolution was put and negatived. monday, july . on motion of mr. dent, a committee was appointed to wait upon the president of the united states, in conjunction with a like committee from the senate, to inform him the two houses were about to adjourn. the committee waited upon the president accordingly, and reported his acquiescence, and his good wishes for the safe arrival of the members at their several homes. on motion of mr. sitgreaves, the resolution entered into some time ago, calling upon the president for an account of the quantity of arms in the possession of the united states, and at what place they were lodged, was suspended. mr. s. said, he wished to make a report upon a subject which would require the galleries to be cleared. he, therefore, moved that they be cleared, and the doors were closed for the remainder of the sitting, at the conclusion of which the house adjourned till the second monday in november next.[ ] fifth congress.--second session. begun at the city of philadelphia, november , . proceedings in the senate. monday, november , . the second session of the fifth congress of the united states commenced this day, at the city of philadelphia, conformably to law; and the senate assembled accordingly in their chamber. present: samuel livermore, from new hampshire. theodore foster, from rhode island. uriah tracy, from connecticut. elijah paine, from vermont. william bingham, from pennsylvania. humphrey marshall, from kentucky. alexander martin and timothy bloodworth, from north carolina. jacob read, from south carolina. the number of members present not being sufficient to constitute a quorum, the senate adjourned to o'clock to-morrow morning. tuesday, november . john laurance, from the state of new york, and henry latimer, from the state of delaware, severally attended. the number of members present not being sufficient to constitute a quorum, the senate adjourned. wednesday, november . benjamin goodhue, from the state of massachusetts, attended. the number of members present not being sufficient to constitute a quorum, the senate adjourned. thursday, november . the senate assembled, and the number of members present not being sufficient to constitute a quorum, the senate adjourned. friday, november . john langdon, from the state of new hampshire, attended. the number of members present not being sufficient to constitute a quorum, the senate adjourned. saturday, november . no quorum being present, the senate adjourned. monday, november . james gunn, from the state of georgia, attended. no quorum being present, adjourned. tuesday, november . ray greene, appointed a senator by the state of rhode island, in the place of william bradford, resigned, produced his credentials. richard stockton, from the state of new jersey, attended. no quorum being present, the senate adjourned. wednesday, november . the vice president being absent, the senate proceeded to the choice of a president _pro tempore_, as the constitution provides; and jacob read was duly elected. joseph anderson, appointed a senator by the state of tennessee, for the remainder of the term which the late senator william blount had drawn, and was entitled to have served, produced his credentials; which were read. nathaniel chipman, appointed a senator by the state of vermont, in the place of isaac tichenor, elected governor, produced his credentials; which were read. the credentials of ray greene were read. andrew jackson, appointed a senator by the state of tennessee, produced his credentials; which were read. the oath required by law was administered by the president, to messrs. anderson, chipman, greene, and jackson, they having severally taken their seats in the senate. a message from the house of representatives informed the senate, that a quorum of the house is assembled, and ready to proceed to business. _ordered_, that the secretary acquaint the house of representatives that a quorum of the senate is assembled, and are ready to proceed to business; and that, in the absence of the vice-president, they have elected jacob read, president of the senate _pro tempore_. _resolved_, that each senator be supplied, during the present session, with copies of three such newspapers, printed in any of the states, as he may choose, provided that the same are furnished at the rate of the usual annual charge for such papers. a message from the house of representatives informed the senate, that the house have appointed a joint committee on their part, together with such committee as the senate may appoint, to wait on the president of the united states, and notify him that a quorum of the two houses is assembled, and ready to receive any communications that he may be pleased to make to them. _resolved_, that the senate do concur in the appointment of a joint committee, and that messrs. bingham and tracy be the committee on the part of the senate. _resolved_, that two chaplains be appointed to congress for the present session, one by each house, who shall interchange weekly; and that the right rev. bishop white be chaplain on the part of the senate. mr. bingham reported, from the joint committee, that they had waited on the president of the united states, and had notified him that a quorum of the two houses is assembled; and that the president of the united states acquainted the committee that he would meet the two houses, in the representatives' chamber, at o'clock to-morrow. thursday, november . a message from the house of representatives informed the senate that the house are now ready to meet the senate in the chamber of that house, to receive such communications as the president of the united states shall please to make them. the senate then repaired to the chamber of the house of representatives for the purpose above expressed. the senate returned to their own chamber, and a copy of the speech of the president of the united states, this day addressed to both houses of congress, was read: _gentlemen of the senate, and gentlemen of the house of representatives_: i was for some time apprehensive that it would be necessary, on account of the contagious sickness which afflicted the city of philadelphia, to convene the national legislature at some other place. this measure it was desirable to avoid, because it would occasion much public inconvenience, and a considerable public expense, and add to the calamities of the inhabitants of this city, whose sufferings must have excited the sympathy of all their fellow-citizens. therefore, after taking measures to ascertain the state and decline of the sickness, i postponed my determination, having hopes, now happily realized, that, without hazard to the lives or health of the members, congress might assemble at this place, where it was next by law to meet. i submit, however, to your consideration, whether a power to postpone the meeting of congress, without passing the time fixed by the constitution, upon such occasions, would not be a useful amendment to the law of one thousand seven hundred and ninety-four. although i cannot yet congratulate you on the re-establishment of peace in europe, and the restoration of security to the persons and properties of our citizens from injustice and violence at sea, we have nevertheless abundant cause of gratitude to the source of benevolence and influence, for interior tranquillity and personal security, for propitious seasons, prosperous agriculture, productive fisheries, and general improvements; and, above all, for a rational spirit of civil and religious liberty, and a calm, but steady determination to support our sovereignty, as well as our moral and religious principles, against all open and secret attacks. our envoys extraordinary to the french republic embarked, one in july, the other early in august, to join their colleague in holland.[ ] i have received intelligence of the arrival of both of them in holland, from whence they all proceeded on their journey to paris, within a few days of the nineteenth of september. whatever may be the result of this mission, i trust that nothing will have been omitted on my part, to conduct the negotiation to a successful conclusion, on such equitable terms as may be compatible with the safety, honor, and interests of the united states. nothing, in the mean time, will contribute so much to the preservation of peace, and the attainment of justice, as a manifestation of that energy and unanimity of which, on many former occasions, the people of the united states have given such memorable proofs, and the exertion of those resources for national defence, which a beneficent providence has kindly placed within their power. it may be confidently asserted, that nothing has occurred since the adjournment of congress, which renders inexpedient those precautionary measures recommended by me to the consideration of the two houses, at the opening of your late extraordinary session. if that system was then prudent, it is more so now, as increasing depredations strengthen the reasons for its adoption. indeed, whatever may be the issue of the negotiation with france, and whether the war in europe is or is not to continue, i hold it most certain that perfect tranquillity and order will not soon be obtained. the state of society has so long been disturbed; the sense of moral and religious obligations so much weakened; public faith and national honor have been so impaired; respect to treaties has been so diminished, and the law of nations has lost so much of its force; while pride, ambition, avarice, and violence, have been so long unrestrained, there remains no reasonable ground on which to raise an expectation, that a commerce, without protection or defence, will not be plundered. the commerce of the united states is essential, if not to their existence, at least to their comfort, their growth, prosperity, and happiness. the genius, character, and habits of the people are highly commercial; their cities have been founded, and exist, upon commerce; our agriculture, fisheries, arts, and manufactures, are connected with and depend upon it; in short, commerce has made this country what it is, and it cannot be destroyed or neglected without involving the people in poverty and distress; great numbers are directly and solely supported by navigation--the faith of society is pledged for the preservation of the rights of commercial, and seafaring, no less than of the other citizens. under this view of our affairs, i should hold myself guilty of a neglect of duty, if i forbore to recommend that we should make every exertion to protect our commerce, and to place our country in a suitable posture of defence, as the only sure means of preserving both. i have entertained an expectation, that it would have been in my power, at the opening of this session, to have communicated to you the agreeable information of the due execution of our treaty with his catholic majesty, respecting the withdrawing of his troops from our territory, and the demarkation of the line of limits; but by the latest authentic intelligence, spanish garrisons were still continued within the limits of our country, and the running of the boundary line had not been commenced. these circumstances are the more to be regretted, as they cannot fail to affect the indians in a manner injurious to the united states; still, however, indulging the hope that the answers which have been given, will remove the objections offered by the spanish officers to the immediate execution of the treaty, i have judged it proper that we should continue in readiness to receive the posts, and to run the line of limits. further information on this subject will be communicated in the course of the session. in connection with the unpleasant state of things on our western frontier, it is proper for me to mention the attempts of foreign agents to alienate the affections of the indian nations, and to excite them to actual hostilities against the united states; great activity has been exerted by these persons, who have insinuated themselves among the indian tribes, residing within the territory of the united states, to influence them, to transfer their affections and force to a foreign nation, to form them into a confederacy, and prepare them for war, against the united states. although measures have been taken to counteract these infractions of our rights, to prevent indian hostilities, and to preserve their attachment to the united states, it is my duty to observe, that, to give a better effect to these measures, and to obviate the consequences of a repetition of such practices, a law, providing adequate punishment for such offences, may be necessary. the commissioners appointed under the fifth article of the treaty of amity, commerce, and navigation, between the united states and great britain, to ascertain the river, which was truly intended, under the name of the st. croix, mentioned in the treaty of peace, met at passamaquoddy bay in october, , and viewed the mouths of the rivers in question, and the adjacent shores and islands; and being of opinion, that actual surveys of both rivers to their sources, were necessary, gave the agents of the two nations instructions for that purpose, and adjourned to meet at boston in august; they met; but the surveys, requiring more time than had been supposed, and not being then completed, the commissioners again adjourned to meet at providence, in the state of rhode island, in june next, when we may expect a final examination and decision. the commissioners appointed in pursuance of the sixth article of the treaty, met at philadelphia in may last, to examine the claims of british subjects, for debts contracted before the peace, and still remaining due to them, from citizens or inhabitants of the united states. various causes have hitherto prevented any determinations; but the business is now resumed, and doubtless will be prosecuted without interruption. several decisions on the claims of the citizens of the united states, for losses, and damages, sustained by reason of irregular and illegal captures, or condemnations, of their vessels or other property, have been made by the commissioners in london, conformably to the seventh article of the treaty; the sums awarded by the commissioners have been paid by the british government; a considerable number of other claims, where costs and damages, and not captured property, were the only objects in question, have been decided by arbitration, and the sums awarded to the citizens of the united states have also been paid. the commissioners appointed agreeably to the st article of our treaty with spain, met at philadelphia in the summer past, to examine and decide on the claims of our citizens for losses they have sustained in consequence of their vessels and cargoes having been taken by the subjects of his catholic majesty, during the late war between spain and france; their sittings have been interrupted, but are now resumed. the united states being obligated to make compensation for the losses and damages sustained by british subjects, upon the award of the commissioners acting under the sixth article of the treaty with great britain, and for the losses and damages sustained by british subjects, by reason of the capture of their vessels and merchandise, taken within the limits and jurisdiction of the united states, and brought into their ports, or taken by vessels originally armed in ports of the united states, upon the awards of the commissioners acting under the seventh article of the same treaty, it is necessary that provision be made for fulfilling these obligations. the numerous captures of american vessels by cruisers of the french republic, and of some by those of spain, have occasioned considerable expenses, in making and supporting the claims of our citizens before their tribunals. the sums required for this purpose have, in divers instances, been disbursed by the consuls of the united states; by means of the same captures, great numbers of our seamen have been thrown ashore in foreign countries, destitute of all means of subsistence, and the sick, in particular, have been exposed to grievous suffering. the consuls have, in these cases also, advanced moneys for their relief; for these advances they reasonably expect reimbursements from the united states. the consular act relative to seamen requires revision and amendment; the provisions for their support in foreign countries, and for their return, are found to be inadequate, and ineffectual. another provision seems necessary to be added to the consular act; some foreign vessels have been discovered sailing under the flag of the united states, and with forged papers. it seldom happens that the consuls can detect this deception, because they have no authority to demand an inspection of the registers and sea letters. _gentlemen of the house of representatives_: it is my duty to recommend to your serious consideration those objects which, by the constitution, are placed particularly within your sphere--the national debt and taxes. since the decay of the feudal system, by which the public defence was provided for, chiefly at the expense of individuals, a system of loans has been introduced. and as no nation can raise, within the year, by taxes, sufficient sums for its defence, and military operations in time of war, the sums loaned and debts contracted have necessarily become the subjects of what have been called funding systems. the consequences arising from the continued accumulation of public debts in other countries, ought to admonish us to be careful to prevent their growth in our own. the national defence must be provided for as well as the support of government; but both should be accomplished, as much as possible, by immediate taxes, and as little as possible by loans. the estimates for the services for the ensuing year will, by my direction, be laid before you. _gentlemen of the senate, and gentlemen of the house of representatives_: we are met together at a most interesting period; the situations of the principal powers of europe are singular and portentous: connected with some by treaties and with all by commerce, no important event there can be indifferent to us; such circumstances call with peculiar importunity, not less for a disposition to unite in all those measures on which the honor, safety, and prosperity of our country depend, than for all the exertions of wisdom and firmness. in all such measures you may rely on my zealous and hearty concurrence. john adams. united states, _november_ , . _ordered_, that messrs. stockton, laurance, and livermore, be a committee to report the draft of an address to the president of the united states, in answer to his speech, this day, to both houses of congress; and that the speech be printed for the use of the senate. friday, november . a message from the house of representatives informed the senate, that the house have agreed to so much of the resolution of the senate, of the d instant, relative to the appointment of chaplains, as is contained in the words following, to wit: "_resolved_, that two chaplains be appointed to congress for the present session, one by each house, who shall interchange weekly." "the house have proceeded, by ballot, to the appointment of a chaplain on their part; and, upon examining the ballots, a majority of the votes of the whole house was found in favor of the rev. ashbel green." saturday, november . mr. stockton, from the committee, reported the draft of an address to the president of the united states, in answer to his speech to both houses of congress, at the opening of the session; which was read. on motion, that a number of copies be printed, under an injunction that no more should be struck off than may be necessary for the use of the senate, it passed in the negative. _ordered_, that the secretary furnish such senators as request it, with copies of this report. monday, november . henry tazewell, from the state of virginia, attended. the senate resumed the consideration of the report of the committee, of the draft of an address in answer to the speech of the president of the united states, to both houses of congress, at the opening of the session; which, being read in paragraphs, and amended, was adopted, as follows: _to the president of the united states_: sir: the communications you thought proper to make in your speech to both houses of congress on the opening of their present session, afford additional proofs of the attention, integrity, and firmness, which have always marked your official character. we cannot but approve of the measures you had taken to ascertain the state and decline of the contagious sickness which has so lately afflicted the city of philadelphia, and the pleasing circumstance that congress is now assembled at that place, without hazard to the health of its members, evinces the propriety of your having postponed a determination to convene the national legislature at another place. we shall take into consideration the law of , on this subject, and will readily concur in any amendment which may be deemed expedient. it would have given us much pleasure to have received your congratulations on the re-establishment of peace in europe, and the restoration of security to the persons and property of our citizens from injustice and violence at sea. but, though these events, so desirable to our country and the world, have not taken place, yet we have abundant cause of gratitude to the great disposer of human events for interior tranquillity and personal security, for propitious seasons, prosperous agriculture, productive fisheries, and general improvement; and, above all, for a rational spirit of civil and religious liberty, and a calm, but steady determination to support our sovereignty against all open and secret attacks. we learn, with satisfaction, that our envoys extraordinary to the french republic had safely arrived in europe, and were proceeding to the scene of negotiation; and, whatever may be the result of the mission, we are perfectly satisfied that nothing on your part has been omitted, which could, in any way, conduce to a successful conclusion of the negotiation, upon terms compatible with the safety, honor, and interest, of the united states; and we are fully convinced that, in the mean time, a manifestation of that unanimity and energy of which the people of the united states have given such memorable proofs, and a proper exertion of those resources of national defence, which we possess, will essentially contribute to the preservation of peace and the attainment of justice. we think, sir, with you, that the commerce of the united states is essential to the growth, comfort, and prosperity of our country; and that the faith of society is pledged for the preservation of the rights of commercial and seafaring, no less than of other citizens. and even if our negotiation with france should terminate favorably, and the war in europe cease, yet the state of society, which unhappily prevails in so great a portion of the world, and the experience of past times, under better circumstances, unite in warning us that a commerce so extensive, and which holds out so many temptations to lawless plunderers, can never be safe without protection; and we hold ourselves obliged, by every tie of duty which binds us to our constituents, to promote and concur in such measures of marine defence, as may convince our merchants and seamen that their rights are not sacrificed, nor their injuries forgotten. we regret, that, notwithstanding the clear and explicit terms of the treaty between the united states and his catholic majesty, the spanish garrisons are not yet withdrawn from our territory, nor the running of the boundary line commenced. the united states have been faithful in the performance of their obligations to spain, and had reason to expect a compliance equally prompt on the part of that power. we still, however, indulge the hope that the convincing answers, which have been given to the objections stated by the spanish officers, to the immediate execution of the treaty, will have their proper effect; and that this treaty, so mutually beneficial to the contracting parties, will be finally observed with good faith. we therefore entirely approve of your determination to continue in readiness to receive the posts, and to run the line of partition between our territory and that of the king of spain. attempts to alienate the affections of the indians; to form them into a confederacy, and to excite them to actual hostility against the united states, whether made by foreign agents, or by others, are so injurious to our citizens at large, and so inhuman with respect to our citizens inhabiting the adjacent territory, as to deserve the most exemplary punishment; and we will cheerfully afford our aid in framing a law, which may prescribe a punishment adequate to the commission of crimes so heinous. the several objects you have pointed out to the attention of the legislature, whether they regard our internal or external relations, shall receive from us that consideration which they merit; and we will readily concur in all such measures as may be necessary, either to enable us to fulfil our engagements at home, or to cause ourselves to be respected abroad. and, at this portentous period, when the powers of europe, with whom we are connected by treaty or commerce, are in so critical a situation, and when the conduct of some of those powers towards the united states is so hostile and menacing, the several branches of the government are, in our opinion, called upon, with peculiar importunity, to unite, and, by union, not only to devise and carry those measures on which the safety and prosperity of our country depend, but also to undeceive those nations who, regarding us as a weak and divided people, have pursued systems of aggression inconsistent with a state of peace between independent nations. and, sir we beg leave to assure you, that we derive a singular consolation from the reflection that, at such a time, the executive part of our government has been committed to your hands, for, in your integrity, talents, and firmness, we place the most entire confidence. jacob read, _president of the senate pro tempore_. _ordered_, that the committee who prepared the address wait on the president of the united states and desire him to acquaint the senate at what time and place it will be most convenient for him that it should be presented. on motion, _ordered_, that messrs. tracy, bingham, and greene, be a committee, to inquire what business remained unfinished at the close of the last session of congress, which, in their opinion, is proper for the senate to take into consideration the present session, and, also, what laws will expire before the next session of congress, and report thereon to the senate. tuesday, november . mr. stockton reported, from the committee, that they had waited on the president of the united states, and that he would receive the address of the senate this day at o'clock, at his own house. the senate accordingly waited on the president of the united states, and the president _pro tempore_, in their name, presented the address agreed to yesterday. to which the president made the following reply: _gentlemen of the senate_: i thank you for this address. when, after the most laborious investigation, and serious reflection, without partial considerations, or personal motives, measures have been adopted or recommended, i can receive no higher testimony of their rectitude, than the approbation of an assembly, so independent, patriotic, and enlightened, as the senate of the united states. nothing has afforded me more entire satisfaction, than the coincidence of your judgment with mine, in the opinion of the essential importance of our commerce, and the absolute necessity of a maritime defence. what is it, that has drawn to europe the superfluous riches of the three other quarters of the globe, but a marine? what is it that has drained the wealth of europe itself into the coffers of two or three of its principal commercial powers, but a marine? the world has furnished no example of a flourishing commerce, without a maritime protection; and a moderate knowledge of man and his history will convince any one, that no such prodigy ever can arise. a mercantile marine and a military marine must grow up together; one cannot long exist without the other. john adams. united states, _november_ , . the senate returned to their own chamber, and adjourned. wednesday, november . the president laid before the senate the memorial and address of the people called quakers, from their yearly meeting, held in philadelphia, in the year , requesting the attention of congress to the oppressed state of the african race, and the general prevalence of vice and immorality; and the same was read and ordered to lie on the table. thursday, november . _ordered_, that the memorial and address of the people called quakers, presented yesterday, be withdrawn. friday, december . james hillhouse, from the state of connecticut, attended. monday, december . theodore sedgwick, from the state of massachusetts, attended. wednesday, december . thomas jefferson, vice president of the united states and president of the senate, attended. friday, december . john e. howard, from the state of maryland, attended. thursday, december . john brown, from the state of kentucky, attended. friday, december . stephens thompson mason, from the state of virginia, attended. monday, january , . james ross, from the state of pennsylvania, attended. thursday, january . james lloyd, appointed a senator by the state of maryland, in the place of john henry, elected governor of said state, produced his credentials; and, the oath required by law being administered, he took his seat in the senate. wednesday, january . the following message was received from the president of the united states: _gentlemen of the senate, and gentlemen of the house of representatives_: the situation of affairs between the united states and the cherokee indians having evinced the expediency of a treaty with that nation, for the promotion of justice to them, as well as of the interests and convenience of our citizens, i have nominated, and, by and with the advice and consent of the senate, appointed commissioners to hold conferences, and conclude a treaty, as early as the season of the year and the convenience of the parties will admit. as we know very well, by experience, such negotiations cannot be carried on without considerable expenses, i recommend to your consideration the propriety of making an appropriation, at this time, for defraying such as may be necessary for holding and concluding a treaty. that you may form your judgments with greater facility, i shall direct the proper officer to lay before you an estimate of such articles and expenses as may be thought indispensable. john adams. united states, _january_ , . monday, january . josiah tattnall, from the state of georgia, attended. friday, february . john sloss hobart, appointed a senator by the state of new york, in the place of philip schuyler, resigned, produced his credentials, and, the oath required by law being administered, he took his seat in the senate. monday, february . _french outrage._ the following message was received from the president of the united states; which was read: _gentlemen of the senate, and gentlemen of the house of representatives_: i have received a letter from his excellency charles pinckney, esq., governor of the state of south carolina, dated the d october, , enclosing a number of depositions and witnesses to several captures and outrages committed within and near the limits of the united states, by a french privateer belonging to cape francois, or monte christo, called the vertitude or fortitude, and commanded by a person of the name of jordan or jourdain, and particularly upon an english merchant ship named the oracabissa, which he first plundered and then burned, with the rest of her cargo, of great value, within the territory of the united states, in the harbor of charleston, on the th of october last. copies of which letter and depositions, and also of several other depositions relative to the same subject, received from the collector of charleston, are herewith communicated. whenever the channel of diplomatical communication between the united states and france shall be opened, i shall demand satisfaction for the insult and reparation for the injury. i have transmitted these papers to congress, not so much for the purpose of communicating an account of so daring a violation of the territory of the united states, as to show the propriety and necessity of enabling the executive authority of government to take measures for protecting the citizens of the united states and such foreigners as have a right to enjoy their peace, and the protection of their laws, within their limits, in that as well as some other harbors which are equally exposed. john adams. united states, _february_ , . _ordered_, that the message and papers referred to lie for consideration. monday, february . joshua clayton, appointed a senator by the legislature of the state of delaware, in the place of john vining, resigned, produced his credentials, which were read, and, the oath required by law being administered, he took his seat in the senate. monday, march . _affairs with france._ the following message was received from the president of the united states: _gentlemen of the senate, and gentlemen of the house of representatives_: the first despatches from our envoys extraordinary, since their arrival at paris, were received at the secretary of state's office at a late hour the last evening. they are all in a character which will require some days to be deciphered, except the last, which is dated the th of january, . the contents of this letter are of so much importance to be immediately made known to congress and to the public, especially to the mercantile part of our fellow-citizens, that i have thought it my duty to communicate them to both houses without loss of time. john adams. united states, _march_ , . the message and paper therein referred to were read, and ordered to lie for consideration. monday, march . the following message was received from the president of the united states: _gentlemen of the senate, and gentlemen of the house of representatives_: the despatches from the envoys extraordinary of the united states to the french republic, which were mentioned in my message to both houses of congress, of the fifth instant, have been examined and maturely considered. while i feel a satisfaction in informing you that their exertions, for the adjustment of the differences between the two nations, have been sincere and unremitted, it is incumbent on me to declare, that i perceive no ground of expectation that the objects of their mission can be accomplished, on terms compatible with the safety, the honor, or the essential interests of the nation. this result cannot, with justice, be attributed to any want of moderation on the part of this government, or to any indisposition to forego secondary interests, for the preservation of peace. knowing it to be my duty, and believing it to be your wish, as well as that of the great body of the people, to avoid, by all reasonable concessions, any participation in the contentions of europe, the powers vested in our envoys were commensurate with a liberal and pacific policy, and that high confidence which might justly be reposed in the abilities, patriotism, and integrity, of the characters to whom the negotiation was committed. after a careful review of the whole subject, with the aid of all the information i have received, i can discern nothing which could have insured or contributed to success, that has been omitted on my part, and nothing further which can be attempted, consistently with maxims for which our country has contended at every hazard, and which constitute the basis of our national sovereignty. under these circumstances, i cannot forbear to reiterate the recommendations which have been formerly made, and to exhort you to adopt, with promptitude, decision, and unanimity, such measures as the ample resources of the country afford, for the protection of our seafaring and commercial citizens; for the defence of any exposed portions of our territory; for replenishing our arsenals, establishing foundries and military manufactures; and to provide such efficient revenue, as will be necessary to defray extraordinary expenses, and supply the deficiencies which may be occasioned by depredations on our commerce. the present state of things is so essentially different from that in which instructions were given to the collectors to restrain vessels of the united states from sailing in an armed condition, that the principle on which those orders were issued has ceased to exist. i therefore deem it proper to inform congress, that i no longer conceive myself justifiable in continuing them, unless in particular cases, where there may be reasonable ground of suspicion that such vessels are intended to be employed contrary to law. in all your proceedings, it will be important to manifest a zeal, a vigor, and concert, in defence of the national rights, proportioned to the danger with which they are threatened. john adams. united states, _march_ , . the message was read and referred to the committee appointed on the th november last, who have under consideration that part of the speech of the president of the united states, at the commencement of the session, which relates to the protection of commerce, to consider and report thereon to the senate. tuesday, april . the following message was received from the president of the united states: _gentlemen of the senate, and gentlemen of the house of representatives_: in compliance with the request of the house of representatives, expressed in their resolution of the second of this month, i transmit to both houses those instructions to, and despatches from, the envoys extraordinary of the united states to the french republic, which were mentioned in my message of the nineteenth of march last, omitting only some names, and a few expressions descriptive of the persons. i request that they may be considered in confidence, until the members of congress are fully possessed of their contents and shall have had opportunity to deliberate on the consequences of their publication; after which time i submit them to your wisdom. john adams. united states, _april_ , . the galleries being cleared, the message and documents were read. _ordered_, that they lie for consideration. monday, april . the vice president communicated a letter from john sloss hobart, resigning his seat in the senate, in consequence of his appointment to be judge of the new york district; which letter was read. _ordered_, that the vice president be requested to notify the executive of the state of new york that john sloss hobart hath accepted the appointment of judge of the new york district, and that his seat in the senate is of course vacated. tuesday, april . the bill authorizing the president of the united states to raise a provisional army was read the second time. wednesday, may . the senate resumed the consideration of the report of the committee authorizing thomas pinckney, late envoy extraordinary to the king of spain, and minister plenipotentiary to the king of great britain, to receive the customary presents to foreign ministers at those courts. on the question to agree to the first resolution reported, to wit: "_be it resolved by the senate and house of representatives of the united states of america in congress assembled_, that congress doth consent that thomas pinckney, esq., who, as envoy extraordinary of the united states, negotiated the treaty of friendship, limits, and navigation between the united states and the king of spain, may receive from the said king such present as it is customary for his catholic majesty to make to such persons as negotiate treaties with him:" it passed in the affirmative--yeas , nays , as follows: yeas.--messrs. anderson, bingham, bloodworth, clayton, foster, goodhue, greene, hillhouse, howard, latimer, laurance, livermore, martin, read, sedgwick, stockton, and tracy. nays.--messrs. brown, langdon, marshall, mason, and tazewell. and the other resolution reported was agreed to, in the words following: _and be it further resolved_, that congress doth consent that the said thomas pinckney, esq., lately minister plenipotentiary from the united states to the king of great britain, may receive from the said king such present as it is customary for his britannic majesty to make to ministers plenipotentiary on taking leave of him. thursday, june . _affairs with france._ the following message was received from the president of the united states: _gentlemen of the senate, and gentlemen of the house of representatives_: while i congratulate you on the arrival of general marshall, one of our late envoys extraordinary to the french republic, at a place of safety, where he is justly held in honor, i think it my duty to communicate to you a letter received by him from mr. gerry, the only one of the three who has not received his _congé_. this letter, together with another, from the minister of foreign relations to him, of the third of april, and his answer of the fourth, will show the situation in which he remains; his intentions and prospects. i presume that, before this time, he has received fresh instructions, (a copy of which accompanies this message,) to consent to no loans, and therefore the negotiation may be considered at an end. i will never send another minister to france without assurances that he will be received, respected, and honored, as the representative of a great, free, powerful, and independent nation. john adams. united states, _june_ , . the message and documents were read. _resolved_, that five hundred copies thereof be printed for the use of the senate. monday, june . the bill to declare the treaties between the united states and the republic of france void and of no effect, was read the third time; and the final passage of the bill was determined in the affirmative--yeas , nays , as follows: yeas.--messrs. bingham, chipman, foster, goodhue, hillhouse, howard, laurance, livermore, lloyd, north, paine, read, sedgwick, and tracy. nays.--messrs. brown, langdon, martin, mason, and tazewell. _resolved_, that this bill pass: that it be engrossed; and that the title thereof be, "an act to declare the treaties between the united states and the republic of france void and of no effect." wednesday, june . the vice president being absent, the senate proceeded to the choice of a president _pro tempore_, as the constitution provides, and theodore sedgwick was duly elected. the bill to define more particularly the crime of treason, and to define and punish the crime of sedition, was read the second time. on motion that this bill be committed, it passed in the affirmative--yeas , nays , as follows: yeas.--messrs. bingham, chipman, foster, goodhue, hillhouse, howard, latimer, laurance, lloyd, north, paine, read, sedgwick, stockton, and tracy. nays.--messrs. anderson, brown, langdon, livermore, martin, and mason. _ordered_, that this bill be referred to messrs. lloyd, tracy, stockton, chipman, and read, to consider and report thereon to the senate. friday, june . the bill to authorize the president to prevent and regulate the landing of french passengers, and other persons who may arrive within the united states from foreign places, was read the third time. on motion, to amend the proviso to the fourth section to read as follows: "_provided_, that nothing in this act shall be construed to prohibit the migration or importation of such persons as any state may think proper by law to admit, nor to such persons whose admission may be prohibited by the respective states:" it was determined in the negative--yeas , nays , as follows: yeas.--messrs. anderson, mason, and tazewell. nays.--messrs. bingham, foster, goodhue, hillhouse, howard, langdon, latimer, laurance, livermore, lloyd, martin, north, paine, read, sedgwick, stockton, and tracy. on motion by mr. mason, to strike out these words from the preamble: "the peculiar circumstances of the united states, in relation to the republic of france, and the citizens thereof, require that, whilst the united states have afforded hospitality and protection to frenchmen who have sought an asylum in this country, they should, on the other hand, guard against the arrival and admission of such evil-disposed persons as by their machinations, may endanger the internal safety and tranquillity of the country;" in order to insert the following words: "it is represented that, on the evacuation of port au prince by the british troops, a number of french white men and negroes were put on board of vessels bound to the united states, some of which have arrived, and others may be shortly expected, and it is deemed dangerous to admit indiscriminately such persons into the united states:" it was agreed to divide the motion, and that the words should be struck out; and, on the question to agree to the substitute, it was determined in the negative--yeas , nays , as follows: yeas.--messrs. anderson, bingham, langdon, laurance, livermore, martin, mason, north, read, and tazewell. nays.--messrs. foster, goodhue, hillhouse, howard, latimer, lloyd, paine, sedgwick, stockton, and tracy. so the amendment was lost. and the bill being further amended, by striking out the remainder of the preamble, _resolved_, that the consideration of this bill be postponed until to-morrow. saturday, june . the senate resumed the third reading of the bill to authorize the president to prevent or regulate the landing of french passengers, and other persons who may arrive within the ports of the united states from foreign places. on motion, by mr. martin, one of the majority in favor of the exception yesterday agreed to, namely, "except children under the age of twelve years, and women, in cases especially authorized by the president," and that it be reconsidered, it was determined in the negative--yeas , nays , as follows: yeas.--messrs. hillhouse, howard, lloyd, martin, and read. nays.--messrs. bingham, brown, chipman, foster, goodhue, langdon, latimer, laurance, livermore, north, paine, sedgwick, stockton, tazewell, and tracy. _resolved_, that this bill pass; that it be engrossed; and that the title thereof be "an act to authorize the president to prevent or regulate the landing of french passengers, and other persons, who may arrive within the ports of the united states from foreign places." the senate resumed the second reading of the bill, sent from the house of representatives, entitled "an act to provide for the valuation of lands and dwelling houses, and the enumeration of slaves, within the united states." on motion, by mr. paine, to agree to the following amendment to the proviso in the eighth section, "and all uncultivated lands, except such as make part or parcel of a farm; and except wood lots, used or reserved for the purposes of fuel, fencing, lumber, or building:" it was determined in the negative--yeas , nays , as follows: yeas.--messrs. bingham, brown, chipman, goodhue, latimer, laurance, livermore, paine, sedgwick, and stockton. nays.--messrs. foster, hillhouse, howard, langdon, lloyd, martin, mason, north, read, tazewell, and tracy. on motion, by one of the majority, to reconsider and restore the following words, struck out from the end of the proviso to the eighth section: "or which, at the time of making the said valuation or enumeration, shall not have been assessed for, nor be then held liable to, taxation under the laws of the state wherein the same is, or may be, situated or possessed, shall be exempted from the aforesaid valuation and enumeration:" it was determined in the negative--yeas , nays , as follows: yeas.--messrs. bingham, foster, howard, latimer, laurance, and north. nays.--messrs. brown, chipman, goodhue, hillhouse, langdon, livermore, lloyd, martin, mason, paine, read, sedgwick, tazewell, and tracy. on motion, by mr. mason, to add the following words to the end of the eighth section: "except such as, from fixed infirmity or bodily disability, may be incapable of labor:" it was determined in the affirmative--yeas , nays , as follows: yeas.--messrs. howard, langdon, latimer, livermore, lloyd, martin, mason, paine, read, sedgwick, and tazewell. nays.--messrs. bingham, brown, foster, goodhue, hillhouse, laurance, north, and tracy. on motion, by mr. brown, to strike out of that part of the eighth section which respects the enumeration of slaves these words "above the age of twelve, and under the age of fifty years:" it was determined in the negative--yeas , nays , as follows: yeas.--messrs. bingham, brown, chipman, goodhue, hillhouse, latimer, laurance, lloyd, north, and sedgwick. nays.--messrs. foster, howard, langdon, livermore, martin, mason, paine, read, stockton, tazewell, and tracy. the report of the committee having been agreed to, and the bill amended accordingly, _resolved_, that it pass to the third reading as amended. monday, july . john rutherford, from the state of new jersey, attended. tuesday, july . the senate resumed the consideration of the report of the committee to whom was referred the bill to define more particularly the crime of treason, and to define and punish the crime of sedition; and having agreed to the report, the bill was amended accordingly; and the question to agree to the third reading of the bill, as amended, was determined in the affirmative--yeas , nays , as follows: yeas.--messrs. bingham, chipman, clayton, foster, greene, hillhouse, howard, latimer, laurance, livermore, martin, north, paine, read, rutherford, sedgwick, stockton, and tracy. nays.--messrs. anderson, brown, langdon, mason, and tazewell. wednesday, july . _treason and sedition._ bill to define. on motion to expunge the following words from the second section reported as an amendment: "or shall, in manner aforesaid, traduce or defame the president of the united states, or any court or judge thereof, by declarations, tending to criminate their motives in any official transaction:" it was determined in the negative--yeas , nays , as follows: yeas.--messrs. anderson, brown, howard, langdon, martin, mason, north, and tazewell. nays.--messrs. chipman, clayton, foster, goodhue, hillhouse, latimer, laurance, livermore, lloyd, paine, read, rutherford, sedgwick, stockton, and tracy. on motion to expunge the whole of the second section reported by the committee, in the words following: "sec. . _and be it further enacted_, that if any person shall, by any libellous or scandalous writing, printing, publishing, or speaking, traduce or defame the legislature of the united states, by seditious or inflammatory declarations or expressions, with intent to create a belief in the citizens thereof, that the said legislature, in enacting any law, was induced thereto by motives hostile to the constitution, or liberties and happiness of the people thereof; or shall, in manner aforesaid, traduce or defame the president of the united states or any court or judge thereof, by declarations tending to criminate their motives, in any official transaction; the person so offending, and thereof convicted, before any court of the united states having jurisdiction thereof, shall be punished by a fine, not exceeding two thousand dollars, and by imprisonment, not exceeding two years:" it was determined in the negative--yeas , nays , as follows: yeas.--messrs. anderson, brown, howard, langdon, mason, and tazewell. nays.--messrs. chipman, clayton, foster, goodhue, greene, hillhouse, latimer, laurance, livermore, lloyd, martin, north, paine, read, rutherford, sedgwick, stockton, and tracy. the question on the final passage of the bill was determined in the affirmative--yeas , nays , as follows: yeas.--messrs. chipman, clayton, foster, goodhue, greene, hillhouse, latimer, laurance, livermore, lloyd, martin, north, paine, read, rutherford, sedgwick, stockton, and tracy. so it was _resolved_, that this bill pass; that it be engrossed; and that the title thereof be "an act in addition to the act, entitled 'an act for the punishment of certain crimes against the united states.'" wednesday, july . the bill for encouraging the capture of french armed vessels, by armed ships or vessels owned by a citizen or citizens of the united states, was read the third time; and the final passage of the bill was determined in the affirmative--yeas , nays , as follows: yeas.--messrs. anderson, bingham, chipman, goodhue, greene, hillhouse, latimer, laurance, livermore, martin, north, paine, read, sedgwick, stockton, and tracy. nays.--messrs. brown, langdon, mason, and tazewell. so it was _resolved_, that this bill pass; that it be engrossed; and that the title thereof be "an act for encouraging the capture of french armed vessels, by armed ships or vessels owned by a citizen or citizens of the united states." thursday, july . the senate resumed the third reading of the bill, entitled "an act making further appropriations for the additional naval armament;" and the question on the final passage of the bill, as amended, was determined in the affirmative--yeas , nays , as follows: yeas.--messrs. bingham, chipman, clayton, foster, goodhue, greene, hillhouse, latimer, laurance, livermore, martin, north, paine, read, rutherford, sedgwick, stockton, and tracy. nays.--messrs. anderson, mason, and tazewell. so it was _resolved_, that this bill do pass as amended. friday, july . mr. read, from the committee to whom was referred the bill, sent from the house of representatives, entitled "an act providing for the enumeration of the inhabitants of the united states," reported the bill without amendment. on motion, by mr. livermore, to postpone the further consideration of this bill to the next session of congress, it was determined in the affirmative--yeas , nays . the following message was received from the president of the united states: _gentlemen of the senate_: a resolution of both houses of congress, authorizing an adjournment on monday, the th of this month, has been laid before me. sensible of the severity of the service in so long a session, it is with great reluctance that i find myself obliged to offer any consideration which may operate against the inclination of the members; but certain measures of executive authority which will require the consideration of the senate, and which cannot be matured, in all probability, before monday or tuesday, oblige me to request of the senate that they would continue their session until wednesday or thursday. john adams. united states, _july , _. the message was read, and ordered to lie for consideration. monday, july . the senate took into consideration the report of the committee to whom was referred the message of the president of the united states of the th instant, and which is as follows: "that as, in the opinion of the president, certain measures of executive authority will acquire the consideration of the senate, and which could not be matured before monday or tuesday, it is the opinion of the committee, that the senate should adjourn in their executive capacity to meet to-morrow at the senate chamber, at ten o'clock in the forenoon, on executive business." and the report was adopted. a message from the house of representatives informed the senate, that the house have appointed a joint committee on their part to wait on the president of the united states, and notify him, that, unless he may have any further communications to make to the two houses of congress, they are ready to adjourn; and desire the appointment of a committee on the part of the senate. the senate took into consideration this resolution of the house of representatives. _resolved_, that they do concur therein, and that messrs. chipman and greene be the committee on the part of the senate. mr. chipman reported, from the joint committee, that they had waited on the president of the united states, who informed them that he had nothing further to communicate to congress, except what might result from the last enrolled bill now under his consideration. _ordered_, that the secretary acquaint the house of representatives therewith; and that the senate, having finished the legislative business before them, are about to adjourn. a message from the house of representatives informed the senate, that the house having finished the business before them, are about to adjourn to the first monday in december next. the senate then went into the consideration of executive business--after which, the president declared the senate, so far as respects its legislative functions, adjourned to the time by the constitution prescribed; and, in its executive capacity, until to-morrow morning at ten o'clock. tuesday, july , . agreeably to the adjournment of yesterday, as stated at large in the legislative proceedings, the senate assembled. present: theodore sedgwick, president _pro tempore_, from the state of massachusetts. benjamin goodhue, from massachusetts. nathaniel chipman, from vermont. james hillary and uriah tracy, from connecticut. theodore foster and ray greene, from rhode island. john laurance and william north, from new york. john rutherford, from new jersey. william bingham, from pennsylvania. henry latimer, from delaware. john e. howard, from maryland. henry tazewell, from virginia. john brown, from kentucky. joseph anderson, from tennessee. alexander martin, from north carolina. jacob read, from south carolina. _ordered_, that the following summons, directed to the senators of the united states, respectively, be entered on the journals: _the president of the united states to ----, senator for the state of ----._ certain matters touching the public good, requiring that the session of the senate, for executive business, should be continued, and that the members thereof should convene on tuesday, the th day of july, inst., you are desired to attend at the senate chamber, in philadelphia, on that day, at ten o'clock in the forenoon, then and there to receive and deliberate on such communications as shall be made to you on my part. john adams. united states, _july , _. wednesday, july . the following message was received from the president of the united states: _gentlemen of the senate_: believing that the letter received this morning from general washington, will give high satisfaction to the senate, i transmit them a copy of it, and congratulate them and the public on this great event--the general's acceptance of his appointment as lieutenant general and commander-in-chief of the army. john adams. united states, _july , _. mount vernon, _july , _. dear sir: i had the honor, on the evening of the th instant, to receive from the hands of the secretary of war, your favor of the th, announcing that you had, with the advice and consent of the senate, appointed me lieutenant general and commander-in-chief of all the armies raised or to be raised for the service of the united states. i cannot express how greatly affected i am at this new proof of public confidence, and the highly flattering manner in which you have been pleased to make the communication; at the same time i must not conceal from you my earnest wish that the choice had fallen upon a man less declined in years, and better qualified to encounter the usual vicissitudes of war. you know, sir, what calculation i had made relative to the probable course of events on my retiring from office, and the determination i had consoled myself with, of closing the remnant of my days in my present peaceful abode; you will, therefore, be at no loss to conceive and appreciate the sensations i must have experienced to bring my mind to any conclusion that would pledge me, at so late a period of life, to leave scenes i sincerely love, to enter upon the boundless field of public action, incessant trouble, and high responsibility. it was not possible for me to remain ignorant of, or indifferent to, recent transactions. the conduct of the directory of france towards our country; their insidious hostility to its government; their various practices to withdraw the affections of the people from it; the evident tendency of their acts and those of their agents to countenance and invigorate opposition; their disregard of solemn treaties and the laws of nations; their war upon our defenceless commerce; their treatment of our ministers of peace; and their demands, amounting to tribute; could not fail to excite in me corresponding sentiments with those my countrymen have so generally expressed in their affectionate addresses to you. believe me, sir, no one can more cordially approve of the wise and prudent measures of your administration. they ought to inspire universal confidence; and will, no doubt, combined with the state of things, call from congress such laws and means as will enable you to meet the full force and extent of the crisis. satisfied, therefore, that you have sincerely wished and endeavored to avert war, and exhausted, to the last drop, the cup of reconciliation, we can with pure hearts appeal to heaven for the justice of our cause, and may confidently trust the final result to that kind providence who has heretofore, and so often, signally favored the people of these united states. thinking in this manner, and feeling how incumbent it is upon every person, of every description, to contribute at all times to his country's welfare, and especially in a moment like the present, when every thing we hold dear and sacred is so seriously threatened, i have finally determined to accept the commission of commander-in-chief of the armies of the united states; with the reserve only that i shall not be called into the field until the army is in a situation to require my presence, or it becomes indispensable by the urgency of circumstances. in making this reservation, i beg it to be understood, that i do not mean to withhold any assistance to arrange and organize the army, which you may think i can afford. i take the liberty also to mention, that i must decline having my acceptance considered as drawing after it any immediate charge upon the public, or that i can receive any emoluments annexed to the appointment, before entering into a situation to incur expense. the secretary of war being anxious to return to the seat of government, i have detained him no longer than was necessary to a full communication upon the several points he had in charge. with very great respect and consideration, i have the honor to be, dear sir, your most obedient and humble servant, g. washington. john adams, _president of the united states_. the message and letter were read, and five hundred copies thereof ordered to be printed for the use of the senate. the following message was received from the president of the united states: _gentlemen of the senate_: i nominate alexander hamilton, of new york, to be inspector general of the army, with the rank of major general. charles cotesworth pinckney, of south carolina, to be a major general. henry knox, of massachusetts, to be a major general. henry lee, of virginia, to be a major general of the provisional army. edward hand, of pennsylvania, to be a major general of the provisional army. john brooks, of massachusetts, to be a brigadier general. william washington, of south carolina, to be a brigadier general. jonathan dayton, of new jersey, to be a brigadier general. william stevens smith, of new york, to be adjutant general, with the rank of brigadier general. ebenezer huntington, of connecticut, to be a brigadier general of the provisional army. anthony walton white, to be a brigadier general of the provisional army. william richardson davie, of north carolina, to be a brigadier general of the provisional army. john sevier, of tennessee, to be a brigadier general of the provisional army. james craik, of virginia, to be physician general of the army. john adams. july , . the message was read, and ordered to lie for consideration. the following message was received from the president of the united states: _gentlemen of the senate_: i nominate william winder, of maryland, to be accountant of the navy. john adams. july , . thursday, july . the senate took into consideration the message of the president of the united states, of the th instant, and the nomination contained therein, of william winder, to office. whereupon, _resolved_, that they do advise and consent to the appointment agreeably to the nomination. _ordered_, that the secretary lay this resolution before the president of the united states. the senate took into consideration the message of the president of the united states, of the th instant, and the nominations contained therein, of alexander hamilton, and others, to military appointment. whereupon, _resolved_, that they do advise and consent to the appointments, agreeably to the nominations, respectively; except to that of william stevens smith, of new york, to be adjutant general, with the rank of brigadier general, to which they do not advise and consent. _ordered_, that the secretary lay this resolution before the president of the united states. _ordered_, that mr. bingham and mr. laurance be a committee to wait on the president of the united states, and notify him, that having finished the executive business before them, they are ready to adjourn, unless he may have any further matters for their consideration. mr. bingham reported, from the committee last mentioned, that the president of the united states informed them that he had a further communication to make to the senate. the following message was received from the president of the united states: _gentlemen of the senate_: i nominate william north, of new york, to be adjutant general of the army, with the rank of brigadier general. john adams. united states, _july , _. the message was read. on motion, it was agreed, by unanimous consent, to dispense with the rule, and that the said nomination be now considered. whereupon, _resolved_, that they do advise and consent to the appointment, agreeably to the nomination. _ordered_, that the secretary lay this resolution before the president of the united states. whereupon, the president adjourned the senate to the first monday in december next, to meet in this place. fifth congress.--second session. proceedings and debates in the house of representatives. monday, november , . this being the day appointed by law for the meeting of congress, the house of representatives assembled in their chamber, and the following members answered to their names, to wit: _from new hampshire._--abiel foster. _from massachusetts._--stephen bullock, samuel lyman, john read, william shepard, george thatcher, joseph b. varnum, and peleg wadsworth. _from connecticut._--john allen, joshua coit, roger griswold, and nathaniel smith. _from new york._--lucas elmendorph, henry glenn, jonathan n. havens, hezekiah l. hosmer, john e. van allen, and john williams. _from new jersey._--jonathan dayton, (speaker,) and thomas sinnickson. _from pennsylvania._--john chapman, albert gallatin, thomas hartley, and john swanwick. _from maryland._--george baer, junior, william craik, george dent, and richard sprigg, junior. _from virginia._--john dawson, d. holmes, james machir, daniel morgan, and anthony new. _north carolina._--matthew locke, nathaniel macon, and richard stanford. _south carolina._--robert goodloe harper, and john rutledge, junior. several new members, to wit: isaac parker, from massachusetts; thomas tillinghast, returned to serve as a member of this house, for the state of rhode island, in the room of elisha r. potter, who has resigned his seat; and william edmond, returned to serve in this house, as a member for connecticut, in the room of james davenport, deceased, appeared, produced their credentials, and took their seats in the house. but a quorum of the whole number not being present, the house adjourned until to-morrow morning, eleven o'clock. tuesday, november . several other members, to wit: from massachusetts, harrison g. otis; from rhode island, christopher g. champlin; from connecticut, samuel w. dana and chauncey goodrich; from vermont, matthew lyon; from pennsylvania, blair mcclenachan and richard thomas; from delaware, james a. bayard; from virginia, richard brent; from north carolina, robert williams; from south carolina, william smith; and from georgia, abraham baldwin, appeared, and took their seats in the house. but a quorum of the whole number not being present, the house adjourned until to-morrow morning, eleven o'clock. wednesday, november . several other members, to wit: from new jersey, james h. imlay; from pennsylvania, william findlay; and from maryland, william hindman, appeared, and took their seats in the house. and a quorum, consisting of a majority of the whole number, being present, the oath to support the constitution of the united states was administered, by mr. speaker, to the following new members, to wit: isaac parker, thomas tillinghast, and william edmond, who took their seats in the house on monday last. a message was then sent to the senate, to inform them that a quorum of the house is assembled, and were ready to proceed to business. thursday, november . several other members, to wit: from vermont, lewis r. morris; from new york, james cochran, and edward livingston; from virginia, matthew clay, thomas evans, walter jones, abram trigg, and john trigg; and from north carolina, william barry grove, appeared, and took their seats in the house. and then the house adjourned until to-morrow morning, eleven o'clock. friday, november . two other members, to wit: from new jersey, mark thomson; and from pennsylvania, john a. hanna, appeared, and took their seats in the house. monday, november . several other members, to wit: from new hampshire, jonathan freeman and william gordon; from new jersey, james schureman; from maryland, william matthews; and from virginia, abraham venable, appeared, and took their seats in the house. tuesday, november . several other members, to wit: from massachusetts, dwight foster; from new york, philip van cortlandt; and from virginia, carter b. harrison, appeared, and took their seats in the house. wednesday, november . two other members, to wit: from pennsylvania, david bard, and samuel sitgreaves, appeared and took their seats. thursday, november . two new members, to wit: william c. c. claiborne, from the state of tennessee; and thomas pinckney, returned to serve as a member of this house for the state of south carolina, in the room of william smith, appointed minister plenipotentiary of the united states to the court of lisbon, appeared, produced their credentials, and took their seats in the house; the oath to support the constitution of the united states being first administered to them by mr. speaker, according to law. two other members, to wit: from virginia, thomas claiborne and john clopton, appeared, and took their seats in the house. _president's speech._ the hour of twelve being near at hand, the speaker announced it, and a message was sent to the senate to inform them that they were met, and ready to receive the communications of the president of the united states, agreeably to his appointment. the members of the senate attended accordingly, and about a quarter after twelve the president of the united states (after visiting the senate chamber) entered the house, accompanied by his secretary and the heads of departments, and being seated, rose and delivered the following address. (see senate proceedings, _ante_.) having concluded his speech, and delivered copies of it to the president _pro tem._ of the senate, and to the speaker of the house of representatives, the president retired, the speaker resumed the chair, and the house being come to order, he, as usual, read the speech from the chair. this being done, on motion, it was referred to a committee of the whole house, and made the order for to-morrow. it was ordered also to be printed. monday, november . a new member, to wit: bailey bartlett, returned to serve in this house as a member for massachusetts, in the place of theophilus bradbury, who has resigned his seat, appeared, produced his credentials, and took his seat in the house; the oath to support the constitution of the united states being first administered to him by mr. speaker, according to law. several other members, to wit: from massachusetts, samuel sewall; from new york, david brooks; from maryland, john dennis; from virginia, john nicholas and josiah parker; and from north carolina, thomas blount, appeared and took their seats in the house. _address to the president._ mr. otis, from the committee appointed to draft an address in answer to the speech of the president of the united states, reported the following, which was twice read, and referred to a committee of the whole for to-morrow: sir: while our sympathy is excited by the recent sufferings of the citizens of philadelphia, we participate in the satisfaction which you are pleased to express, that the duration of the late calamity was so limited, as to render unnecessary the expense and inconvenience that would have been incident to the convention of congress in another place: and we shall readily attend to every useful amendment of the law which contemplates the event of contagious sickness at the seat of government. in lamenting the increase of the injuries offered to the persons and property of our citizens at sea, we gratefully acknowledge the continuance of interior tranquillity, and the attendant blessings of which you remind us, as alleviations of these fatal effects of injustice and violence. whatever may be the result of the mission to the french republic, your early and uniform attachment to the interest of our country; your important services in the struggle for its independence, and your unceasing exertions for its welfare, afford no room to doubt of the sincerity of your efforts to conduct the negotiation to a successful conclusion, on such terms as may be compatible with the safety, honor, and interest of the united states. we have also a firm reliance upon the energy and unanimity of the people of these states, in the assertion of their rights, and on their determination to exert, upon all proper occasions, their ample resources in providing for the national defence. the importance of commerce, and its beneficial influence upon agriculture, arts, and manufactures, have been verified in the growth and prosperity of our country. it is essentially connected with the other great interests of the community. they must flourish and decline together; and while the extension of our navigation and trade naturally excites the jealousy, and tempts the avarice of other nations, we are firmly persuaded, that the numerous and deserving class of citizens engaged in these pursuits, and dependent on them for their subsistence, has a strong and indisputable claim to our support and protection. the delay of the spanish officers to fulfil the treaty existing with his catholic majesty is a source of deep regret. we learn, however, with satisfaction, that you still indulge hopes of removing the objections which have been made to its execution, and that you have continued in readiness to receive the posts. disposed to perform, with fidelity, our national engagements, we shall insist upon the same justice from others which we exercise towards them. our abhorrence cannot be too strongly expressed of the intrigues of foreign agents to alienate the affections of the indian nations, and to rouse them to acts of hostility against the united states. no means in our power should be omitted of providing for the suppression of such cruel practices, and for the adequate punishment of their atrocious authors. upon the other interesting subjects noticed in your address, we shall bestow the requisite attention. to preserve inviolate the public faith, by providing for the due execution of our treaties; to indemnify those who may have just claims to retribution upon the united states for expenses incurred in defending the property and relieving the necessities of our unfortunate fellow-citizens; to guard against evasions of the laws intended to secure advantages to the navigation of our own vessels; and especially, to prevent, by all possible means, an unnecessary accumulation of the public debt, are duties which we shall endeavor to keep in view, and discharge with assiduity. we regard, with great anxiety, the singular and portentous situation of the principal powers of europe. it was to be devoutly wished that the united states, remote from this seat of war and discord; unambitious of conquest; respecting the rights of other nations; and desirous, merely, to avail themselves of their natural resources, might be permitted to behold the scenes which desolate that quarter of the globe with only those sympathetic emotions which are natural to the lovers of peace and friends of the human race. but we are led by events to associate with these feelings a sense of the dangers which menace our security and peace. we rely upon your assurances of a zealous and hearty concurrence in such measures as may be necessary to avert these dangers; and nothing on our part shall be wanting to repel them, which the honor, safety, and prosperity of our country may require. tuesday, november . samuel smith, from maryland, appeared and took his seat. _address to the president._ mr. coit moved for the order of the day on the reported answer to the president's speech. the motion being agreed to, the house accordingly resolved itself into a committee of the whole upon that subject, and the address having been read through by the chairman, it was again read by paragraphs. the first four were read, without any objection being offered to them. the fifth being gone through, mr. pinckney said, he had to propose a small alteration to this clause: he wished to make the latter part of it a little less harsh. instead of saying, "we shall insist upon the same justice from others," &c., he thought it would have the same effect, and the terms would be less objectionable, if the passage ran thus: "nothing shall be wanting on our part to obtain the same justice from others," &c. the expression used, he said, might be perfectly justifiable, but, if we could obtain what we wished without the possibility of giving offence, he thought that mode ought to be preferred. it was on this account that he wished the phraseology to be changed. mr. rutledge said, as a member of the committee who reported the address, he did not feel tenacious as to the wording of it. at first, he thought with his colleague, who proposed the amendment, that the word _insist_ was rather harsh; but, upon a little reflection, his objections to the phrase were removed. indeed, he thought the proposed amendment would make the passage stronger than it was in the original. they might insist, he said, in argument; looking upon the treaty as a good one, they might insist upon its execution; but if it were not to be effected without going to war, they might afterwards relinquish it. the amendment he thought more forcible. it said "nothing shall be wanting to obtain," &c.; which would be to say, we look upon the treaty as a good one, and nothing shall be wanting on our part to obtain its fulfilment. the words might even be considered to say, that we are determined to have the treaty carried into effect, though war should be the price of the determination. mr. dayton (the speaker) approved of the amendment of the gentleman from south carolina, but not from the reasons which that gentleman had urged in support of it, but for those which his colleague had produced against it; not because it was more smooth, but because it contained more of decision and firmness. he thought, in this respect, this country had been trifled with, and any opinion expressed by them upon this subject ought to be done with a firmness of tone. the question on mr. pinckney's amendment was put and carried, there being sixty-two members in the affirmative. the remainder of the address was then gone through, without further observation. mr. otis, from the committee appointed to wait upon the president, to know when and where it would be convenient for him to receive the address in answer to his speech, reported that they had attended to that service, and that it would be convenient for him to receive it at his house to-morrow at twelve o'clock. wednesday, november . _address to the president._ mr. lyon said, when the motion was proposed yesterday on the subject of waiting upon the president, he should have opposed it, only that he did not wish to deprive some gentlemen of the gratification of attending the ceremony; and now he hoped those gentlemen would consent to gratify him by agreeing to a similar resolution to that of last session, excusing him from an attendance upon the occasion. mr. macon observed, that whether the resolution was agreed to or not, the gentleman might doubtless remain behind if he chose, as he had no idea that the house could compel members to go about parading the streets of philadelphia. the gentleman might have conscientious scruples, and if the ceremony were meant to be respectful to the president, members should attend it freely, or not at all. he should wish, therefore, that gentlemen disinclined to do the service, would not join it. mr. otis hoped the motion would not prevail. he presumed no gentleman there was particularly anxious for the society of the gentleman from vermont on this occasion. no doubt he would grace the procession, but it would be sufficiently long without him, and if he chose to remain behind, he need be under no apprehensions of being called to account for his conduct. it was not becoming the dignity of the house to pass the resolution in question. it appeared to him that the gentleman was in full health and spirits, and every way fit for business; and as the house had resolved the thing should be done, he had no idea of admitting the protest of an individual upon their journals against the measure. mr. gallatin said he should be in favor of the previous question, but not for the reasons assigned by the mover of it, but for those offered by the gentleman from north carolina, (mr. macon,) viz: because he did not believe there existed any power in that house to compel any member to wait upon the president with the address; therefore it would be improper to grant an indulgence to a member from doing what there was no obligation upon him to do. he did not recollect the words of the resolution which had been agreed to. [the speaker repeated them. they were, "that the speaker, attended by the house of representatives, shall wait upon the president, &c."] this, mr. g. said, must be understood in a qualified sense, as the house of representatives had no existence out of those walls. when the speaker presented the address, the house was not present; they could not debate nor do any act as a house. the address was, therefore, strictly speaking, presented by the speaker, followed by the members of the house of representatives--as he did not conceive the house had any power without the walls of the house. they could, indeed, appoint committees to do business out of doors, but could not call out the members as a body. upon this ground he was, therefore, in favor of the previous question. mr. lyon said, understanding the matter in the light in which it had been placed by the gentleman from pennsylvania, he would withdraw his motion. the speaker announced the arrival of the hour which the president of the united states had appointed to receive the address of the house in answer to his speech; and the speaker, attended by the members, accordingly waited upon the president, at his house, and presented to him the address: to which the president made the following reply: _gentlemen of the house of representatives_: i receive this address from the house of representatives of the united states with peculiar interest. your approbation of the meeting of congress in this city, and of those other measures of the executive authority of government communicated in my address to both houses, at the opening of the session, afford me great satisfaction, as the strongest desire of my heart is to give satisfaction to the people and their representatives by a faithful discharge of my duty. the confidence you express in the sincerity of my endeavors, and the unanimity of the people, does me much honor, and gives me great joy. i rejoice in that harmony which appears in the sentiments of all the branches of the government, on the importance of our commerce and our obligations to defend it, as well as in all other subjects recommended to your consideration, and sincerely congratulate you and our fellow-citizens at large on this appearance, so auspicious to the honor, interest, and happiness of the nation. john adams. united states, _november , _. the speaker and members then returned to the house, and order being obtained, the speaker, as usual, read the answer of the president from the chair. thursday, november . thompson j. skinner, from massachusetts, appeared, and took his seat. _memorial of quakers._ mr. gallatin presented the following memorial of certain citizens, called quakers, in the name of the annual meeting of that body, lately held in philadelphia. _to the senate and house of representatives of the united states in congress assembled_: the memorial and address of the people called quakers, from their yearly meeting held in philadelphia, by adjournments from the th of the th month, to the th of the same, inclusive, , respectfully showeth: that, being convened, at this our annual solemnity, for the promotion of the cause of truth and righteousness, we have been favored to experience religious weight to attend our minds, and an anxious desire to follow after those things which make for peace; among other investigations the oppressed state of our brethren of the african race has been brought into view, and particularly the circumstances of one hundred and thirty-four in north carolina, and many others whose cases have not so fully come to our knowledge, who were set free by members of our religious society, and again reduced into cruel bondage, under the authority of existing or retrospective laws; husbands and wives, and children, separated, one from another; which, we apprehend to be an abominable tragedy, and with other acts, of a similar nature, practised in other states, has a tendency to bring down the judgments of a righteous god upon our land. this city and neighborhood, and some other parts, have been visited with an awful calamity, which ought to excite an inquiry in the cause and endeavors to do away those things which occasion the heavy clouds that hang over us. it is easy with the almighty to bring down the loftiness of men by diversified judgments, and to make them fear the rod and him that hath appointed it. we wish to revive in your view the solemn engagement of congress, made in the year one thousand seven hundred and seventy-four, as follows: "and, therefore, we do for ourselves, and the inhabitants of the several colonies, whom we represent, firmly agree and associate, under the sacred ties of virtue, honor, and love of our country, as follows: "article . we will neither import nor purchase any slaves imported after the first day of december next, after which time we will wholly discontinue the slave trade, and will neither be concerned in it ourselves, nor will we hire our vessels, nor sell our commodities or manufactures to those who are concerned in it. "article . and will discountenance and discourage every species of extravagance and dissipation, especially horse-racing, and all kinds of gaming, cock-fighting, exhibitions of shows, plays, and other expensive diversions and entertainments." this was a solemn league and covenant, made with the almighty in an hour of distress, and he is now calling upon you to perform and fulfil it; but how has this solemn covenant been contravened by the wrongs and cruelties practised upon the poor african race, the increase of dissipation and luxury, and the countenance and encouragement given to play-houses, and other vain amusements! and how grossly is the almighty affronted on the day of the celebration of independence! what rioting and drunkenness, chambering and wantonness! to the great grief of sober inhabitants, and the disgrace of our national character. national evils produce national judgments; we therefore fervently pray the governor of the universe may enlighten your understandings and influence your minds, so as to engage you to use every exertion in your power, to have these things redressed. with sincere desires for your happiness here and hereafter, and that, when you come to close this life, you may individually be able to appeal as a ruler did formerly: "remember now, o lord, i beseech thee, how i have walked before thee, in truth and with a perfect heart, and have done that which is good in thy sight." we remain your friends and fellow-citizens. signed in and on behalf of the said meeting, by jonathan evans, _clerk to the meeting this year_. the memorial having been read by the clerk, mr. gallatin moved that it be read a second time. mr. harper hoped not. this was not the first, second, or third time, that the house had been troubled with similar applications, which had a tendency to stir up a class of persons to inflict calamities which would be of greater consequence than any evils which were at present suffered; and this, and every other legislature, ought to set their faces against remonstrances complaining of what it was utterly impossible to alter. mr. thatcher hoped the petition would have a second reading, and be committed. it appeared to him that this would be the regular way of getting rid of the difficulty which was apprehended. the gentleman who had just sat down said, that this was not the first, second, or third time, that the house had been troubled with similar petitions. this, he said, was natural. if any number of persons considered themselves aggrieved, it was not likely they should leave off petitioning, until the house should act upon their petition. he thought this was what they ought to do. if the quakers thought themselves aggrieved, it was their duty to present their petition, not only three, five, or seven times, but seventy times, until it was attended to. mr. rutledge should not be opposed to the second reading and reference of this memorial, if he thought the strong censure they deserved would be the report of a committee. this censure, he thought, this body of men ought to have; a set of men who attempt to seduce the servants of gentlemen travelling to the seat of government, who were incessantly importuning congress to interfere in a business with which the constitution had said they had no concern. if he was sure this conduct would be reprobated, he would cheerfully vote for a reference of the present petition; but not believing this would be the case, he should be for its laying on the table, or under the table, that they might not only have done with the business for to-day, but finally. at a time when some nations were witnesses of the most barbarous and horrid scenes, these petitioners are endeavoring to incite a class of persons to the commission of similar enormities. he thought the matter of the greatest importance, and that the reference ought by no means to be made. mr. swanwick was sorry to see so much heat produced by the introduction of this petition. he himself could see no reason why the petition should not be dealt with in the ordinary way. if the petitioners asked for any thing which it was not in the power of the house to grant, it would be of course refused; but this was no reason why their petition should not be treated with ordinary respect. in this memorial, he said, sundry things were complained of; not only slavery, but several other grievances. for instance, play-houses were complained of, whether justly or not, he was not about to decide. with respect to the grievance mentioned in north carolina, something perhaps might be done to remedy it, without affecting the property which gentlemen seemed so much alarmed about. he could not suppose there was a disposition in the house to violate the property of any man; there was certainly as strong a disposition in the middle states as in the southern, to hold inviolable the right of property; nor could he see any reasonable ground for throwing this petition under the table. if these people were wrong in their understanding of this subject, it would be best to appoint a committee to set them right. mr. gallatin said it was the practice of the house, whenever a memorial was presented, to have it read a first and a second time, and then to commit it, unless it were expressed in such indecent terms as to induce the house to reject it, or upon a subject upon which petitions had been lately rejected by a large majority of the house. in no other case were petitions rejected without examination and without discussion. he said, without examination and without discussion, because it was impossible, upon a single reading of a petition, to be able to form a sound judgment upon it. indeed, seeing the way in which the gentleman from south carolina (mr. rutledge) had treated the subject, no cool examination could be expected at present; in the moment of passion it would be best not to decide, but to send the petition to a committee. what was the objection to this mode of proceeding? it was that the subject would shake a certain kind of property. how so? a petition that reminds us of the fate of certain blacks in this country, which did not refer to slaves, but to free men. this petition was to shake property! in the same manner it might be said that the law of pennsylvania for the gradual abolition of slavery had also a tendency to destroy that property; or that the legislative decision of the state of massachusetts that there shall be no slaves under their government, would have that effect. but it was said the characters of the petitioners was such as they ought to brand with the mark of disapprobation. in support of this charge, it was alleged that they were not satisfied with petitioning, but they attempted to debauch and seduce servants--to rob gentlemen of their property. he did not know to what the gentleman who made this assertion alluded; but he believed, if the matter was fairly stated, whatever may have been done in the state of pennsylvania, has been no more than an endeavor to carry into full effect the laws of the state, which say, that "all men are free when they set their foot within the state," excepting only the servants of members of congress.[ ] as to the moral character of this body of people, though a number of their principles were different from those which he professed, he believed it could not be said, with truth, that they were friends to any kind of disorder; and he was surprised to hear gentlemen suppose that they could or would do any thing which would throw into disorder any part of the union. on the contrary, he believed them to be good friends of order. mr. g. said he wished to have avoided a discussion of the merits of the memorial; but when they were told it was improper to do any thing on the subject, it became necessary. he knew it was in their power to do something. they might lay a duty of ten dollars a head on the importation of slaves; he knew a memorial had been presented at a former session respecting the kidnapping of negroes, which had been favorably reported upon. finally, the present memorial did not apply only to the blacks, but to other objects. with respect to plays, they had a motion last session before them for laying a tax upon them, which had a reference to the subject. by committing this memorial, they should give no decision. if the committee reported they could do nothing in the business, and the house agreed to the report, the matter would be closed in a much more respectful way than by throwing the petition under the table. mr. sewall said, the gentleman last up had stated two cases in which petitions had been received without a commitment. he might have added a third, more applicable to the present memorial. this was when a petition was upon matter over which this house had no cognizance, especially if it were of such a nature as to excite disagreeable sensations in one part of the house, who were concerned in property which was already held under circumstances sufficiently disagreeable. in such cases, they ought at once to reject the memorial, as it would be misspending time to commit it. if, for instance, a petition should be presented, complaining that a person had refused to discharge an obligation to another, it would be at once acknowledged that the house could not enforce the obligation; but application must be made to a court of justice. so in this case; the petitioners complain of a law of north carolina. this house, he said, could not change that law. if any thing was done there contrary to right, the courts of that state, as well as those of the united states, were open to afford redress. it was their business, and not the business of that house. they did not come there to act upon subjects agreeable to their feelings, but upon such as the constitution had placed in their hands. mr. macon said, there was not a gentleman in north carolina who did not wish there were no blacks in the country. it was a misfortune--he considered it as a curse; but there was no way of getting rid of them. instead of peace-makers, he looked upon the quakers as war-makers, as they were continually endeavoring in the southern states to stir up insurrections amongst the negroes.[ ] it was unconstitutional, he said, in these men to desire the house to do what they had no power to do; as well might they ask the president of the united states to come and take the speaker's chair. there was a law in north carolina, he said, which forbade any person from holding either a black or white person as a slave after he had been set at liberty. the one hundred and thirty-four negroes alluded to in the petition, he knew nothing of. in the war, he said, the quakers in their state were generally tories. they began to set free their negroes, when the state passed a law that they should not set them free. if these people were dissatisfied with the law, they had nothing to do but transport their negroes into pennsylvania, where, the gentleman from that state had told them, they would be immediately free. this subject had already been before the house, but they declined doing any thing in it. it was extraordinary that these people should come, session after session, with their petitions on this subject. they had put play-houses into their memorial; but they had nothing to do with them. in this state, he believed, the legislature had passed a law authorizing them. it was altogether a matter of state policy. the whole petition was, indeed, unnecessary. the only object seemed to be to sow dissension. a petition could not come there touching any subject on which they had power to act, which he should not be in favor of committing; but this thing being wrong in itself, it was needless to commit it, as no single purpose could be answered by it. mr. isaac parker was of opinion with the gentleman from pennsylvania, (mr. gallatin,) with respect to the disposal of petitions. but it appeared to him that the subject matter of all petitions should be within the view and authority of the house; if not, to refer them would certainly be a waste of time. he had attended to the petition, and he did not think there was a single object upon which it was in their power to act. nothing was prayed for. the petitioners speak of the slave trade, and, in general terms, of the immorality of the times, as injurious to the state of society; and wish some means may be taken to prevent the growth of them. to refer a petition of this sort, therefore, to a committee would answer no purpose. he did not think they were more obliged to take up the business than if they had read the address in a newspaper. mr. bayard said it might be inferred, from the anxiety and warmth of gentlemen, that the question before them was, whether slavery should or should not be abolished. the present was, however, very remote from such a question, as it was merely whether a memorial should be read a second time. the contents of this memorial, he said, were right or wrong, reasonable or unreasonable; if right, it was proper it should go to a committee; and if wrong, if so clearly absurd as it had been represented, where would be the evil of a reference for a report thereon? he did not like things to be decided in the moment of passion, but from the fullest consideration. in some countries they knew persons accused of crimes were condemned without a hearing; but there could be but one sentiment as to the injustice of such a proceeding. there could be no objection, therefore, upon general principles, to the reference of this petition. but it was said it was not to be sent, because of the general habits of this society. he believed there was no body of men more respectable; they were obedient, and contributed cheerfully to the support of government; and, either politically or civilly speaking, as few crimes could be imputed to that body as to any other. this memorial, he said, had been treated as coming from an abolition society--it was a memorial of the general meeting of the people called quakers; and if only out of respect to that body, it ought to be referred. but it was said it did not contain matter upon which the house could act. gentlemen seemed not to have attended to the subject-matter of the petition. he did not believe that the house had the power to manumit slaves, but he believed there was not a word in the petition which had a reference to slavery. the petitioners state, indeed, that a number of negroes, not slaves, for negroes may be free, had been taken again into slavery, after they had been freed by their masters. he wished to know whether the house had not jurisdiction over this matter? he was warranted by the constitution in saying they had, because that instrument says that no state shall make _ex post facto_ laws. it belonged to that house, therefore, to see that the constitution was respected, as it could not be expected from the justice of the individual states, that they would repeal such laws. it rested, therefore, with the government of the united states to do it. mr. b. read the clause of the constitution touching this matter, and concluded by reminding the house that this was not an ultimate decision, but merely a reference. mr. josiah parker said he was always inclined to lend a favorable ear to petitioners of every kind, but when a memorial was presented to the house contrary to the nature of the government, he should consent to its lying on the table or under it. no one, he said, could say they had a right to legislate respecting the proceedings of any individual state; they, therefore, had no power to decide on the conduct of the citizens of north carolina in the matter complained of. petitions had frequently come from quakers and others on the subject; whereas this government had nothing to do with negro slavery, except that they might lay a tax upon the importation of slaves. he recollected, when the subject was brought before the house in the first congress held at new york, wishing to put a stop to the slave trade as much as possible, being a friend of liberty, he took every step in his power, and brought forward a proposition for laying a tax of ten dollars upon every slave imported. it was not agreed to; but there was only one state (georgia) in which the importation of slaves was admitted. since the establishment of this government, mr. p. said, the situation of slaves was much ameliorated, and any interference now might have the effect to make their masters more severe. he knew of no part of the constitution which gave them power over horse-racing and cock-fighting, nor could they interfere with respect to play-houses; and where they had no right to legislate, they had no right to speak at all. as the session had begun harmoniously, he hoped that harmony would not be broken in upon by such applications as the present. mr. p. produced a precedent from the journals of , where a memorial of warner mifflin, a quaker, after being read, was ordered to lie on the table, and two days afterwards returned to the memorialist. mr. nicholas felt as much as other gentlemen from the southern states on the subject of the present petition, but his feelings did not produce the same effect. he was not afraid of an interference from the united states with their property, nor of any investigations or discussions respecting it. he believed it would be to the honor of people holding property in slaves, that the business should be looked into. he thought such an inquiry would rather secure than injure their property. he did not think it was the interest of slaveholders to cover improper practices. he was satisfied, that in the part of the country where he lived, there was no disposition to protect injuries--no disposition to reject an inquiry, or to refuse to understand a complaint. they had been told that the state of the negroes, whose cases were mentioned in the memorial, might be produced by the fugitive law; they had before heard that this law had operated mischievously. it ought, therefore, to be inquired into. on inquiry, mr. n. said, it would not be found the fault of the southern states that slavery was tolerated, but their misfortune; but to liberate their slaves at once, would be to act like madmen; it would be to injure all parts of the united states as well as those who possess slaves. it was their duty, however, to remedy evils; they were unfortunately placed in a situation which obliged them to hold slaves, but they did not wish to extend the mischief. he should, indeed, be sorry if his possessing property of this kind, obliged him to cover the violation of another man's right; if this were the case, he should think it necessary that his property should be taken from him. he did not think it necessary, and he doubted not, if a fair investigation took place, that this kind of property would be brought into the situation in which every man of sense would place it. he was firmly of an opinion, that to appear to be afraid of an inquiry would do more harm to this property than a fair investigation. he trusted, therefore, the petition would be committed. mr. blount hoped this memorial would not be committed. as this was not the first time the society of quakers had come forward with petitions to the house, seemingly with no other view than to fix an odium on the state of north carolina, he thought it his duty positively to contradict a fact stated in this memorial. it was stated that persons, set free from slavery in north carolina, had been since enslaved by cruel retrospective, or _ex post facto_ laws; they alleged that certain members of their society had done what no person was permitted to do. mr. b. read part of a law of north carolina, stating "that no negro or mulatto slave shall be set free, except for meritorious services, acknowledged by a license of the court; and when any person shall be set free contrary to this law, he may be seized and sold as a slave," &c. he also read a clause from another law, passed afterwards, stating that several persons having set at liberty their slaves contrary to law, and persons having taken up and sold them, are doubtful of the validity of the sale, and that this law is passed to do away all doubts of such validity. mr. b. said these extracts proved the assertion untrue. mr. gordon lamented that this discussion had taken place, as it was certain that wherever interest is concerned, some degree of warmth will be produced; and when a petition was brought forward which might affect the property of many gentlemen in this house, and their constituents, it could not be expected they would hear it with the same calmness with persons wholly unconcerned about it. all that had been advanced in favor of the second reading of the petition was, the respectability of the persons presenting it, the opinion that would be entertained of the petitioners, if their petition was not referred, and the merits of the petition itself. with respect to the persons of the petitioners, he felt inclined to do them every justice; but he did not think this any reason for acting upon their memorial, unless some good consequence could arise from it, any more than if they were the vilest persons on earth. as to the opinion that might be entertained out of doors, as the petition was not examined, he was not afraid that the citizens of the united states would believe that the house could be so far lost to its duty as not to look into a question of this kind, but that it would be conceived, if rejected, that they had nothing to do with it. the other reason, the only material one, was to the merits of the petition. the gentleman from delaware, (mr. bayard,) who had examined the business with much coolness and ability, had stated that a certain _ex post facto_ law of north carolina had occasioned grievances. admitting there was such a law, what could the house do? could they declare a law of north carolina null and void? there would be no utility in this; but if there was a law in north carolina that violated the constitution, there was a clear remedy in the law which organizes the judical department of the united states, in which it is said, if any law of an individual state interferes with a law of the united states, a person has a right to take advantage of the law of the united states. there was no necessity, therefore, to call upon congress for a remedy against this law. indeed, he saw nothing in this memorial which called for their interference, and he was therefore against a reference, as a further discussion of it would only produce uneasiness in certain parts of the united states, without producing any good. mr. rutledge observed, that notwithstanding all that had been said, considering the present extraordinary state of the west india islands and of europe, he should insist that "sufficient for the day is the evil thereof," and that they ought to shut their doors against any thing which had a tendency to produce the like confusion in this country. if this were not done, the confidence of a great part of the union in the general government would be weakened. in the southern states, where most of their property consisted of slaves, and where the rest was of no value without them, there was already a prejudice existing that the northern and eastern states were inimical to this kind of property, though they were bound by the constitution from an interference with it; but when they heard of the house giving countenance to a petition like the present, it would increase their uneasiness. he referred to what had fallen from the gentleman from delaware respecting _ex post facto_ law, and thought a court of justice the proper tribunal to settle that business. mr. r. said he was indisposed, notwithstanding the high panegyrics which had been passed upon the body of quakers, to withdraw the censures he had cast upon them. the gentleman from new york had doubted the charges which he had produced, and said such things could never be attempted by the body. it was true, they did not come in a body into his lodging to seduce his servant, but individuals did it. but why, he asked, do these men come here in a body? because they believe that their presence will give more weight to their petition; so that they appeared in bodies, or as individuals, to answer their purposes. gentlemen had charged the opposers of the petition with heat; he thought there was as much heat on one side as the other. mr. edmond did not believe there was any real ground of irritation in the question; as no gentleman could suppose they were about to do any thing which was either unconstitutional, or which would affect their property. whether the persons who presented the memorial are virtuous or vicious, was of no consequence, since justice was due to both classes of men. they had brought a petition before them, and they ought to consider it. it was addressed to their honesty or justice; if the facts were claims upon their honesty or justice they should be attended to; and not only attended to, but, if possible, relief granted. it was stated that there were a number of persons held in bondage who were justly entitled to liberty. this fact called for examination; and a question arose, if it were established, whether that house could afford redress. a gentleman from north carolina (mr. blount) had stated that the fact was not true; it was certainly, therefore, worth while to be inquired into. another gentleman had said, if the fact were as stated, they had no power to act; and a third was of opinion that, by the constitution, redress might be afforded. this diversity of opinion showed the necessity of an investigation of the subject, in order to determine the jurisdiction of the house. he wished it for another reason. it had been stated, that if this petition were attended to, it would open a door to faction and mischief. can it have this effect? these people bring forward a petition stating a number of facts; they certainly do not come forward for the mere design of exciting disorder in any quarter. if the house say they will throw their petition under the table, would not such treatment give the factious some ground of clamor by which to sow dissension? but if, on the contrary, they coolly looked into the petition, and reported thereon, would it not stop the mouths of these people? it certainly would; since they could not then say common justice was refused to the petitioners. again; having once investigated the subject fully, if petitions of a similar kind should hereafter come forward, it would be reasonably said, this matter has already been taken up and fully decided upon; and, therefore, we will not again go into it. until this was done, the factious would doubtless have cause of complaint. mr. blount said, several gentlemen who had spoken on this subject seemed to express themselves as if they believed there was no punishment for individuals reducing to slavery persons who had been manumitted. he read an extract from a law, passed in , in north carolina, by which the punishment of death is awarded against such an offence. mr. macon read the proceedings of the house on the petition respecting the kidnapping of negroes, in order to show that the gentleman from new york (mr. livingston) had misstated the issue of the business. the last report on the subject was that it would be best to leave the regulation of the subject to the legislatures of the several states. mr. m. allowed that his reflections upon the whole body of quakers were too general, and he had no hesitation in retracting them; but he believed a number of them were guilty of the charges brought against them by the gentleman from south carolina. mr. thatcher said, if, when the motion was first made, he had been against it, from what had fallen from gentlemen on the subject, he should now be in favor of it; for, notwithstanding they opposed the second reading of the petition, they were filing off in squads to read it, and ready to fight for a sight of it. he believed, therefore, they had some reasons for opposing the second reading, which did not appear. he referred to what had been said by the gentleman from north carolina, as to the fact stated in the petition, and said that, notwithstanding the laws which he had read, the fact might be true; but that this very doubt about the fact was an additional reason for going into the inquiry. gentlemen had said, however good and virtuous the petitioners might be, it ought to have no effect upon the petition; if this were true, he hoped when they were represented as the worst of men, that representation was not meant to influence their decision on the question. mr. t. could not conceive for what purpose they were carried to europe, to witness the scenes which had taken place there for the last ten years. was this, he asked, the state of society? if he thought so, if it had the faintest resemblance of what was taking place there, he would fly from it to the uttermost parts of the earth, and there make his habitation. mr. t. wished an inquiry to take place; there was a part of the united states in which slavery was tolerated--some of the members from those parts thought it not right; there were other parts of the union which disclaimed it. these two opposing principles were like two opposite powers in mechanism, which produced rest; but, the more frequently the subject was looked into, the more mitigated would be its effects. the question was taken for the second reading of the petition, and carried-- votes being in the affirmative. mr. gallatin moved that it be referred to a select committee. mr. coit wished it to be referred to the committee of the whole, to whom was referred the petition on the subject of kidnapping negroes, &c. mr. rutledge thought a select committee would be best, as stage-plays, cock-fighting, horse-racing, and other evils, would, of course, be considered. the question for reference to a select committee was put and carried-- members being in the affirmative. five members being agreed upon to form the committee, the speaker named messrs. sitgreaves, nicholas, dana, schureman, and s. smith, for the purpose. the house adjourned. friday, december . a new member, to wit: joseph heister, returned to serve in this house as a member for the state of pennsylvania, in the room of george ege, who has resigned his seat, appeared, produced his credentials, and took his seat in the house. several other members, to wit: from pennsylvania, andrew gregg; from kentucky, thomas t. davis; and from north carolina, nathan bryan, and dempsey burges, appeared and took their seats in the house. the clerk then informed the house that he had heard from a member of the senate that the speaker was indisposed; so much so that he was not able to communicate his indisposition to the house in writing. mr. dent said, this being the case, he should move that the orders for this day be further postponed till monday; which motion being agreed to, the clerk, on motion, adjourned the house till monday morning, at o'clock. monday, december . thomas sumter, from south carolina, appeared, and took his seat. _publication of debates._ mr. dwight foster presented the petition of thomas carpenter, stating that he was the editor of the _american senator_, published during the session of congress ending in march last; that, at the commencement of that session, he presented a memorial to the house, praying its support of his work; that the house had declined supporting it as a body, but receiving individual assurances of support from many of the members, he had been induced to engage in the work; but the event had proved unfavorable to him. he hoped now, therefore, that he should be recompensed, by the house engaging to take three copies for each member of the work he proposed to publish this session, (provided he met with the support he prayed for,) which, computing the session at eighteen weeks, he supposed would not amount to more than $ , . mr. d. foster moved that this petition be referred to a select committee. mr. coit objected to a reference. the house, he said, had so often determined to have nothing to do with the publication of the debates, that he thought it time to have done with the subject. he hoped, therefore, the petition might lie upon the table. mr. foster and mr. thatcher spoke in favor of the committal; and the motion was put and carried, and a committee of three members appointed to report thereon. thursday, december . _amy dardin._ mr. t. claiborne said, that during the last winter, a report had been made by the committee of claims, on the petition of amy dardin, unfavorable to the petitioner, which, after full discussion, had been disagreed to by the house; and on the th of february a motion for appointing a committee to bring in a bill for her relief was made and committed to a committee of the whole, but for want of time had not been acted upon. he now wished to bring the matter before the house, and for that purpose moved that a committee be appointed to bring in a bill for the relief of amy dardin. this motion met with opposition. it will, perhaps, be recollected that this, though a strong claim, in point of justice, is directly in the face of the limitation act. messrs. macon, sitgreaves, and harper, wished the matter to go again to the committee of claims, as many members now in the house were unacquainted with the merits of the claim; and the latter gentleman, because he thought the house had been surprised into a decision, contrary to fifty other determinations on similar questions, which ought now to be reversed. mr. claiborne opposed this course, and trusted the house would again be influenced by the justice of the claim, to act as they had heretofore done, by passing a bill for the relief of the petitioner. mr. gallatin thought it would be best to commit the business to the same committee of the whole to which they had yesterday referred a report of the committee of claims on the subject of excepting a certain description of claims from the operation of that act. the business was, however, closed by mr. claiborne's withdrawing his motion for the present. monday, december . two other members, to wit: james gillespie and joseph mcdowell, from the state of north carolina, appeared and took their seats. tuesday, december . _acts of limitation._ mr. gallatin called for the order of the day on the report of the committee of claims, to whom it was referred to inquire into and report on the expediency or inexpediency of designating certain claims against the united states to be excepted from the operation of the acts of limitation; which being agreed to, the house accordingly resolved itself into a committee of the whole on the subject, mr. dent in the chair. the report was read, as follows: the committee of claims who were "instructed to inquire into, and report on, the expediency or inexpediency of designating certain claims against the united states, to be excepted from the operation of the acts of limitation," report: that, in obedience to the orders of the house, they have made all the inquiries which to them appear necessary; that they have attentively and deliberately considered the subject referred to them; and are of opinion that it would not be expedient to designate any species of claims against the united states which are now affected by the acts of limitation, to be excepted from the operation of those acts. in considering this subject, a review of the situation of the united states, as respected their finances, during the period when most of the demands originated, was requisite. it was also necessary to ascertain what measures had been adopted by congress, both under the old and under the present government, to bring all the demands against the states to a liquidation and settlement. it will be recollected, that, at the commencement of the war, the united states were destitute of money; and during a long period of years afterwards, were obliged to rely principally on credit, for carrying on all their important operations. having, at that time, no settled national government, a regular system for conducting public business, especially money transactions, depending on credit, was not to be expected. great numbers of individuals were necessarily invested with the power of binding the public by their contracts. almost every officer of the army, whether in the commissary's department or otherwise, in different stages of the war, had it in his power to contract debts legally or equitably binding upon the united states. we find congress, at various times, during the war, endeavoring to make arrangements which should prevent an undue use of the powers vested in individuals, and the dangerous consequences to which the government was thereby necessarily exposed. the acts of the th of march, , and of the d of august, , were calculated to limit the public responsibility in such cases. after the peace, and under the old government, periods were prescribed, within which claims of certain descriptions, and finally all unliquidated claims, were to be exhibited for settlement, or to be for ever thereafter barred. it must be acknowledged by all, that during those periods every provision which could rationally have been expected was made for the accommodation of individuals having claims against the public, to enable them to obtain proper settlements of their demands. the journals of congress under the confederation will abundantly justify this remark. commissioners were appointed, with special or general powers, to settle the claims of individuals in all the departments; and, in every instance, the powers given were plenary and explicit. sufficient time was given for every one to obtain information and pursue his remedy; and ample opportunity was given for all to substantiate their claims, or, at least, to present abstracts of them, which would have prevented their being foreclosed by the acts designed eventually to operate upon them. the cases cannot be numerous, in which the want of opportunity to bring forward claims can be justly pleaded as an excuse for the omission. by the act of the th of march, , all persons having unliquidated claims against the united states were required, within twelve months, to exhibit particular abstracts of such claims, to some of the commissioners in the state in which they respectively resided, who were sent and empowered to settle accounts against the united states, under the penalty or condition that accounts not so presented, should be thereafter settled only at the treasury. by another act of congress, of the same year, viz: november d, , all persons having claims for services performed in the military department, were directed to exhibit the same for liquidation to the commissioners of army accounts, on or before the first day of august, then ensuing. by that act it was expressly resolved, that all claims, under the description above mentioned, which might be exhibited after that period, should be for ever thereafter precluded from adjustment and allowance. and it was provided, by the act of july d, , that all persons having unliquidated claims against the united states, pertaining to the late commissaries', quartermaster's, hospital, clothier's, or marine department, should exhibit particular abstracts of such claims to the proper commissioner appointed to settle the accounts of those departments, within eight months from the date of the said act; and all persons having other unliquidated claims against the united states, were to exhibit particular abstracts thereof to the comptroller of the treasury of the united states, within one year from the date thereof; and all accounts not exhibited as aforesaid, were to be precluded from settlement or allowance. these regulations were adopted by congress under the old government. great care was taken to have them extensively published, so that every individual who was interested might be informed of their existence and operation. under the present constitution there has not been wanting a disposition to relieve certain individuals whose claims were considered as peculiarly meritorious, which had been affected by the acts above recorded. with this view, in march, , two several acts of congress were passed, suspending for two years the operation of the resolutions of congress of november d, , and july th, , so far as they had barred or might be construed to bar the claims of the widow or orphans of any officer of the late army, to the seven years' half pay of such officer; or the claims of any officer, soldier, artificer, sailor, and marine, of the army of the united states, for personal services rendered to the united states in the military or naval departments. in consequence of these suspensions, many claims were exhibited, and allowed against the government. there is reason to apprehend, in some instances, the public were defrauded for want of proper pre-existing checks and evidences of payments being made. this suspension continued for the term of two years, which was till march, . in the mean time, viz: on the th of february, , the act "relative to claims against the united states, not barred by any act of limitation, and which had not been already adjusted," was passed by congress, after a serious and attentive consideration of the subject. by that law it was provided, "that all claims upon the united states for services or supplies, or for other cause, matter, or thing, furnished or done, previous to the th day of march, , whether founded upon certificates, written documents from public officers, or otherwise, which had not already been barred by any act of limitation, and which should not be presented at the treasury before the first day of may, , should for ever after be barred and precluded from settlement or allowance." but this was not to be construed as affecting loan office certificates, certificates of final settlements, indents of interest, balances entered on the books of the register of the treasury, registered certificates, foreign loans, or certificates issued under the act making provision for the public debt of the united states. one other act, passed the d day of march, , provided that loan office certificates, final settlements, and indents of interest, then outstanding, should be presented at the office of the auditor of the treasury, on or before the first day of january, in the present year, , or be for ever after barred or precluded from settlement or allowance. the summary contains a general view of the principal acts of limitation, by which claims against the public have been affected. from an attentive consideration of them, and of the circumstances under which they were enacted, the committee are fully impressed with an opinion that it would not be expedient to suspend their operation. some remarks extracted from a report heretofore made to congress, are subjoined by the committee, as pertinent to the subject. it was essential to the public administration that the extent of just demands upon the government should be, within a reasonable period, definitely ascertained. it was essential to public safety and to right, in relation to the whole community, that all unsettled claims should be made known within a time when there were yet means of proper investigation, and after which the public responsibility should terminate, and the possibility of charging the government by collusive and fictitious contracts, should be at an end. the justice as well as policy of acts of limitation, under such circumstances, cannot be doubted.[ ] the situation of no country ever presented a more clear necessity for, or a more competent justification of, precautions of that nature. and all the reasons for adopting them operate to recommend unusual caution in departing from them, with the additional force of this circumstance, that the subsequent lapse of time has increased the difficulties of a due examination. the accounts of a considerable number of officers, who had it in their power to bind the public by their contracts, and who were intrusted with large sums of money for fulfilling their engagements, remain unsettled. some of those persons are dead; others have absconded; the business has been conducted by others with so little order as to put it out of their power to render a proper statement of their transactions. the books and papers of others, who had extensive trusts, have been destroyed, so as to preclude the possibility of settlement. hence it must appear that the government would, in a great number of cases, be destitute of the means of repelling unfounded and even satisfied claims, for want of documents and vouchers, which only could have resulted from a due settlement with those officers, and from the possession of their books and papers. it might be inferred without proof, and it has appeared in the course of business at the treasury, that it was a practice with certain public officers, on obtaining supplies, to give receipts and certificates for them, and when they made payments, either partially or totally, to take distinct receipts from the parties, without either endorsing the payment upon the original vouchers or requiring a surrender of them. hence it would often happen that parties could produce satisfactory vouchers of their having performed services and furnished supplies, for which, though satisfaction may have been made, the evidences of it would not be in the possession of the government. and hence, from relaxations of the limitation acts, there would be great danger that much more injustice would be done to the united states than justice to individuals. the principles of self-defence, therefore, require and justify an adherence to those acts generally; and there are not any particular species of claims, which, in view of the committee, ought to be exempted from their operation. those which have been most frequently referred to by some members of the house, are such claims as include the arrearages of pay and other emoluments to officers and soldiers of the late army, &c. pursuant to an order of the house at the first session of the present congress, a report was made to them, having special reference to this subject. it was considered in committee of the whole, and agreed to by the house on the fifth day of february, . to that report and the documents accompanying the same, the committee ask leave to refer the house, and respectfully submit the whole subject to their consideration. wednesday, december . john wilkes kittera, from pennsylvania, appeared, and took his seat in the house. friday, december . a new member, to wit, peleg sprague, from new hampshire, in place of jeremiah smith, resigned, appeared, produced his credentials, was qualified, and took his seat. thursday, december . _amy dardin._ mr. t. claiborne moved that the report of the committee of claims, on the petition of amy dardin, be referred to a committee of the whole. the speaker said, that the report having been negatived at a former session, and a bill brought in for her relief, but not decided upon, the proper motion would be to appoint a committee to bring in a bill. mr. claiborne made that motion, which mr. coit moved to be referred to the committee of claims, in order that they might report the facts relative to the case, which were not generally known. mr. claiborne objected to this; and mr. baldwin suggesting the propriety of committing it to the same committee of the whole, to whom were referred the subject of considering the expediency of excepting certain claims from the operation of the limitation acts, this course was adopted. friday, december . _general kosciusko._ mr. dawson wished to call the attention of the house to a subject, which, he doubted not, would interest the feelings of every member. the subject he alluded to was the situation of general kosciusko. it was a fact well known to every man in this country, it was a fact known to the world, that this brave man entered into the service of the united states, at an early period of our revolutionary war. when this service was ended, he received from the government a certificate of what was due to him. he returned to poland, his native country; there, animated by the same spirit which had led him to take a part in our struggle for independence, he endeavored to overthrow the existing tyranny, and to introduce in its place liberty and independence. for some time his attempt seemed likely to be crowned with success; but, on the fatal th of october, , overpowered by numbers, he was defeated and taken prisoner. covered with wounds and with glory, he was conducted to the prison of petersburgh. when he was released from thence, he immediately set out to this country, here to spend the remainder of his life. he was now within this city; but, from the wounds he had received in his arduous but unsuccessful conflict, he was unable to walk or to attend to any business. the unfortunate day on which he was taken prisoner, he lost his all, and with it the certificate of the services rendered to the united states. he was unable, therefore, to obtain a settlement of his account at the treasury. to set aside all difficulty in the matter, mr. d. proposed to offer a resolution to the consideration of the house; and as it was justice only which he sought for this brave man, he doubted not that a spirit of justice would ensure its adoption. it was to the following effect: "_resolved_, that a committee be appointed to inquire and report whether any, and, if any, what provisions are necessary, to obtain payment of the claim of gen. kosciusko on the united states." mr. j. parker seconded the motion. he hoped the resolution would be agreed to, and that immediate attention would be paid to the unfortunate gentleman, as he believed, except he made use of the grant made to him by the emperor of russia, which, he believed, he was disinclined to do, for considering his predecessor as the chief cause of his own misfortunes, and those of his country, he did not wish to be under obligations to him. the certificate given to the general on his departure from hence, was for $ , , upon which he had received only one year's interest. he hoped, therefore, as he had the misfortune to lose his certificate, at the time he was taken prisoner, that the house would take such measures as should enable him to receive the amount of his certificate, with the interest due thereon. mr. coit moved that the resolution should be committed to the committee of claims, but afterwards changed his motion so as to make that committee the committee to inquire and report, instead of a select committee. he professed to have no other object in these motions than that this claim should take the same course with other claims. the motion was supported by messrs. allen, j. williams, macon, and edmond. it was opposed by messrs. j. parker, livingston, gallatin, brooks, nicholas, harper, sheperd, otis, pinckney, swanwick, s. smith, t. claiborne, and mcdowell. the motion for a reference to the committee of claims was lost-- to . mr. pinckney said, that as this claim was different from most others which came before that house, and having himself had something to do in the business, he would state to the house what he knew of it. previous to general kosciusko's return to poland, whilst he was in germany, he applied to the polish ambassador in london, by letter, requesting him to make application to the american minister there for payment of a part of the money due to him from the united states. the mode of transacting this business was this: the interest arising from the certificate granted to the general, was made payable in paris; but from the change which took place in the french government, the general did not know how to receive it there, which was the reason of his making application, through the polish minister, to him (mr. p.) in london. mr. p. wrote to the american minister in paris for an order on the bankers of the united states in holland, but having in the mean time received a letter from gen. kosciusko, requesting the money to be sent for him to ratisbon or leipsic, he (mr. p.) sent an order to amsterdam, requesting the bankers there to transmit the money either to ratisbon or leipsic, as the exchange should be most advantageous. in the interim general kosciusko returned to poland, and he supposed he then had no time to attend to this business. he never heard any more upon the subject until he saw the general in philadelphia, when he found this money had not been received by him; so that he supposed it yet lay in the hands of the leipsic or ratisbon banker. finding this to be the case, mr. p. immediately wrote to the banker at amsterdam, requesting him to redraw the money, and to transmit it here for the general's use. but, as he might, in the mean time, stand in need of it, it might be proper in the united states to anticipate its return, by settling the account with the general. he hoped in whatever way this business was effected, it would be in such a way as not to wound the feelings of a man who had deserved so well of this country. on a suggestion of mr. sitgreaves, instead of appointing a committee, the secretary of the treasury was directed to make a report what "legislative provision was necessary, &c." this motion was carried by to ; but whatever difference of opinion there was in the house, as to the mode of doing the business, there seemed to be but one sentiment, as to the propriety of complying with the spirit of the resolution. wednesday, december . samuel jordan cabell, from the state of virginia, appeared, and took his seat. _count de grasse._ mr. livingston, from the committee to whom was referred the petition of the daughters of the late count de grasse, made a report, which stated that the sum heretofore allowed by congress was intended only as a temporary provision, until the events of the war should permit them to take possession of an estate in st. domingo; that the facts formerly stated showed that the most important services were rendered to the united states by their father, from motives the most honorable, under the greatest responsibility, and at a risk the most hazardous that could be encountered by an officer of rank and reputation; that, with a recollection of these services, it would consist neither with the honor nor justice of the united states to refuse an adequate provision for the orphan children of the man who rendered them. the committee, therefore, recommended that a certain sum should be granted to each of them, annually, for their lives. the report was twice read, and committed for monday. thursday, december . _gen. kosciusko._ the speaker laid before the house a letter and report from the secretary of the treasury, in pursuance of a resolution of the house, of the d instant, relative to the claim of general kosciusko. the report states, that the accounts of the general were settled at the treasury in , when a certificate was issued to him for $ , , bearing an interest of six per cent. from the st of january, , which was stipulated by a resolution in february following, in common with the interest due to all the foreign officers, to be paid annually at paris; that in may, , moneys were granted by congress to discharge the principal and interest of these debts, at which time it was supposed that all the officers had received their interest to the st of january, ; but it now appears by the banker's account at paris, that no interest had been received by general kosciusko for four years, viz.: from to . sufficient funds to pay the interest from to , were, in , placed in amsterdam, subject to the disposal of our minister at paris; that by his direction a bill for the amount was remitted to mr. pinckney in london; but, pursuant to the direction of general kosciusko, mr. pinckney wrote to the banker at amsterdam to remit the amount to leipsic or dresden. that in september, , a notification was published, that provision had been made for paying the principal of the debt due to foreign officers, on application at the treasury, after the th of october following, and that the interest upon their demands would cease after the last day of december in that year. that though the certificate issued to the general is stated by him to have been lost or destroyed, yet the powers of the officers of the treasury are competent to the payment of $ , , the principal, and $ , interest, for the years from to , on receiving a bond of indemnification from the general: but that they cannot advance the interest supposed to have been remitted to leipsic or dresden, though payment will be immediately made for any sum which may be hereafter redrawn, and credited to the united states at amsterdam; nor is it in the power of the treasury to allow any interest on said principal since the st january, . on motion of mr. dawson, this report was referred to a committee of the whole for monday. tuesday, january . john fowler, from the state of kentucky, appeared and took his seat. _general kosciusko._ mr. dawson moved the order of the day on the report of the secretary of the treasury on the claim of gen. kosciusko; which motion being acceded to, the house resolved itself into a committee of the whole, mr. kittera in the chair, and the report having been read, mr. dawson said, when he had the honor of presenting this business to the house, he hoped the proposition he then submitted would have been agreed to in that way, which, in his opinion, would have been most honorable to the united states, and most agreeable to the person concerned. in this hope he had been disappointed; but, though they differed as to the mode of doing the business, there was but one opinion as to the business itself. he had now a resolution to submit to the consideration of the house, which he trusted would meet with no opposition. it would be found, by the report of the secretary of the treasury, that the accounting officers were ready to pay to general kosciusko $ , principal, and $ , interest, from to . to recover those two sums, therefore, there would have been no occasion for application to that house. it also states, that a bill had been remitted to our minister at london, for the interest from to , but which money was afterwards, by direction of the general, ordered to be remitted to leipsic or dresden; but it did not appear that this order had been complied with. it was clear, however, it was never received by him, nor had he given any person a right to receive it. he hoped, therefore, as the money lay at amsterdam, leipsic or dresden, and could at any time be got by the united states, there would be no objection to pay the general that sum at this time. it was further stated in the report, that in september, , a notification was published, informing all the foreign officers that provision was made at the treasury for the payment of the principal of their debts, and that the interest thereon would therefore cease after the last day of december in that year. upon examination he did not find that this arrangement was founded upon any law; it was, therefore, a regulation agreed upon by the treasury department, and ought not to operate to the injury of persons who were ignorant of it. it was well known, that, from the peculiar situation of general kosciusko at the time, that he could not hear of it; and the truth was, he never did hear of it until he arrived in this city. he hoped, therefore, there would be no objection to the payment of the amount of the certificates, with interest to the present time. to effect this purpose, he proposed the following resolution: "_resolved_, that it is the opinion of this committee, that the secretary of the treasury be authorized and directed to pay to general kosciusko, the interest of six per cent. per annum, on $ , , the amount of the certificate received by him from the united states, and now lost, from the st of january, , to the st day of december, ." this resolution was opposed by messrs. macon, coit, and j. williams. they were opposed to interest being paid up to the present time, and wished, if any provision were made for paying interest beyond the time fixed by the notification of the treasury, that the regulation should be a general one, and extend to all other foreign officers. they were also against paying the interest, which had been transmitted to paris for general kosciusko's use, and which, by his direction, was afterwards remitted to leipsic or dresden, as it most probably lay there, and would be paid to his order without their interference. the motion was advocated by messrs. venable, pinckney, j. parker, harper, gallatin, and t. claiborne, and was finally agreed to without a division. wednesday, january . _duties on distilled spirits._ peach brandy. mr. harper moved the order of the day on the bill to amend the several acts for laying a duty on spirits distilled within the united states, and on stills; which motion being agreed to, the house resolved itself into a committee of the whole on the subject, mr. kittera in the chair. the bill having been read, mr. macon said, that the report of the committee of ways and means, on the proposition for allowing distillers to take licenses for a week, having been referred to that committee, if it were taken up at all, this was the proper time. he should, therefore, propose an additional section to the bill, to embrace this objection. mr. m. accordingly presented a section to allow of weekly licenses. this motion produced a considerable debate. it was opposed by messrs. sewall, griswold, gallatin, gordon, and brooks, on the ground that the duty now paid upon spirits distilled from fruit (which description of distillers the regulation was avowedly intended to accommodate) was not equal to that paid by distillers of grain, as the duty on spirits distilled from fruit was not more than two and a half cents per gallon, whilst that on spirits distilled from grain paid seven cents; and if the amendments were agreed to, this inequality would be increased--for persons who took a license for a week, by preparing their materials beforehand, and working night and day, would finish their business within that time, which otherwise would have required a fortnight; by which means the duty would be reduced from six cents per gallon, on the capacity of their stills, to four; that it would increase the temptation to fraud, as that temptation was strong, or the contrary, in proportion to the length of time for which a license was taken; as a person taking a license for a fortnight, by working his still one day past the time specified in his license would gain half a cent a gallon on the capacity of his still, whilst he who took out a license for six months would only gain half that sum. if licenses for a week were allowed, the temptation would therefore be increased; that such a regulation would greatly augment the duties of excise officers, without rendering any material advantages to individuals--since, if the owner of a still of fifty gallons took out a license for a fortnight, when a week might have served, he would only pay a dollar more than he would have paid for a week; that when this scale of duties was made, reference was had to the situation of persons who would be obliged to take out a license for a fortnight, though they might not have fruit to employ a still more than a few days, and a rate proportionably low adopted; that the same reasons which were urged for allowing licenses for a week might be urged for allowing one for two days; that, though there might be some inconveniences experienced by the distillers of fruit, (as it was not doubted there might be in other parts of the law,) yet, as it was only just got into operation, it would not be right to enter into the proposed regulation, but defer it to the period when it would most probably be necessary to go into a review of the whole law. the motion was supported by messrs. macon, harrison, harper, j. parker, nicholas, venable, r. williams, new, dennis, t. claiborne, and clay. it was asserted that the law as it now stood excluded four out of five of the owners of orchards, in the southern states, from distilling their early fruit at all; that their peaches ripened hastily, and as hastily rotted, if not made use of. persons who had only fruit to employ their stills for three or four days, sooner than take a license for a fortnight, suffered their fruit to rot; and to allow licenses for a week would produce a considerable augmentation of the revenue, since those persons only would take such a license, who, if that privilege were not allowed, would not take out a license at all, or such as had occasion to distil a few days longer after their two weeks' license was expired. it was unjust to require a man, who had only a small orchard, and occasion to use a still but a few days, to pay a much higher duty upon his brandy than his more opulent neighbor. it was not so inconsiderable an object as gentlemen supposed, since it had not reference to one license only--farmers in the southern states having occasion to take out separate licenses for their early, their middle, and their latter fruits; and this regulation would not open a door to fraud, as was supposed. it was an undeserved imputation upon the characters of persons concerned in this business, to suppose they could be tempted to defraud the revenue for the sake of half a cent per gallon upon what they could distil in a day. the penalties consequent upon fraud, if the virtue of the persons concerned could not be relied upon, were sufficient to guard against them; and, if they were not, it could not be expected, as some gentlemen seemed to suppose, that the excise officers should overlook the conduct of every distiller. if they were to be so inspected and scourged, an attempt to defraud the revenue could scarcely be blamed; and, except it were the intention of gentlemen to crush this domestic manufacture, no reasonable objection could be urged against the proposition. the objections which had been urged proved the ignorance of gentlemen in respect to this branch of business; for though the excise officers would have some trouble in issuing licenses, it was believed they would be well satisfied to encounter it, since their profits were in proportion to the quantity of spirits distilled; and though this law had been but a short time in being, the last season, having been a scarce fruit season, had given a good opportunity of trying it. as the application for this amendment was seconded by the whole of the southern country, it was entitled to respect, and ought not to be branded with being a fraudulent design upon the revenue. in the course of the debate, mr. gallatin called upon gentlemen acquainted with the subject, to say what was the quantity of spirits which could be distilled from peaches in a week by a still of the capacity of thirty, forty or fifty gallons, with a view to show that this species of spirits paid less at present than spirits distilled from grain. mr. clay answered this inquiry, by saying, that a still of fifty gallons would distil from five to seven gallons of brandy a day. if the weather was wet, and the peaches rotted quickly, not more than five; but when the weather was dry, and the peaches sound, seven gallons might be produced. the question on the amendment was at length put and carried-- to . mr. dennis said, he wished to try another principle in this bill. the law at present required an annual entry of stills, whether they were used or not, which occasioned persons frequently to ride twenty or thirty miles to make the entry, when they had no intention to make use of their still; and not unfrequently, from not meeting with the officers at home, this journey was taken two or three times over. indeed, he believed, more penalties had been incurred on account of this regulation than any other, and he looked upon it as a useless regulation. when a still was once entered, he thought it was sufficient, and no future entry ought to be required, except when a still was about to be made use of, or when it was transferred into other hands. mr. d. proposed a section to this effect; but after some objections to the introduction of so important a provision into this bill, (which before it could be decided upon would require considerable discussion,) by messrs. hartley, gallatin, and harper, he agreed to withdraw it for the present. it having been agreed to fill the blank of the sum per gallon to be paid on the capacity of a still, when a license was taken for a week, with _four cents_, the committee rose; the house took up the amendments, agreed to them, and the bill was ordered to be engrossed for a third reading to-morrow. friday, january . _count de grasse._ mr. livingston called for the order of the day on the bill for granting an annuity to the daughters of the late count de grasse; which being agreed to, the house resolved itself into a committee of the whole on the subject, mr. dent in the chair; and, after a number of desultory observations, the blanks were filled up, viz: the time for which the annuities should continue was fixed at five years, and the sum per annum to be allowed at $ each. the first question was determined by a considerable majority, there being votes in favor of it; the latter was carried-- to . the committee then rose and reported the amendments. they were all agreed to without a division, except the sum to be allowed per annum. when that question was put, mr. j. williams hoped it would not be agreed to. when the subject was before under discussion, the question on $ and $ had been negatived. $ a year for the four daughters for five years, he said, would be $ , . he thought this a very serious sum. he again adverted to the situation of many of our own citizens, and called for the yeas and nays upon the question. mr. harper asked whether, if, when the count de grasse was solicited to remain with the fleet under his command in the chesapeake, at his own risk and responsibility, he had asked as a condition that on some future day $ , should be granted to his daughters, would it not have been complied with, if it had been ten times that sum? and ought his descendants to be more hardly dealt with because their father had the generosity and magnanimity not to make the demand? he trusted not.[ ] after some observations in favor of concurring with the committee of the whole in their vote, by messrs. thatcher, brooks, livingston, and gordon; and against it by messrs. varnum, mcdowell, and macon--the former of whom said that the clergy, in his part of the country, had not more than three hundred and thirty dollars a year; and the latter gentleman produced three cases of our own citizens who had lost their lives in the service of the united states, whose families had been much more hardly dealt with, viz: the family of a lieutenant colonel, who had four hundred and fifty dollars a year granted them; that of a major, three hundred dollars a year; and that of the marshal of georgia, whose family had a grant of two thousand dollars. the yeas and nays were taken-- to . the question for allowing five hundred dollars a year being negatived, four hundred was proposed and carried-- to . the question being on the bill being engrossed for a third reading, mr. blount called for the yeas and nays upon it. it was carried-- to . monday, january . lemuel benton, from the state of south carolina, appeared, and took his seat. _expenditure for naval service._ mr. livingston called up for consideration and decision the resolution which he had laid upon the table a few days ago, for the appointment of a committee of inquiry into the expenditure of money which had been appropriated for the naval service. the house having agreed to take up this business-- mr. harper said, he believed that the appointment of such a committee was very unusual, without having some ground stated to the house for the proceeding. a vote of this kind would imply a censure upon the conduct of our public officers, which certainly ought not to be done hastily, or without first having, at least, some ground of suspicion laid before them upon which to act. the house had not yet received the statements which had been called for relative to this business; they were directed to be laid before the house in the last week in january, and might, therefore, be soon expected. [several gentlemen said it was the first, and not the last week in january, in which the accounts had been ordered to be laid before the house.] mr. h. said the delay, he supposed, had been occasioned by the officers having been obliged to remove from the city during the fever. he had, however, been informed that these statements would be ready in a few days. and would it not be extraordinary, he asked, if, before they received these statements, they were to appoint a committee of inquiry? he thought it would. he believed the officers of this department of government were very desirous of the inquiry taking place; but this was not a sufficient reason for the house to proceed in the business without having first some ground to suppose the money had been misapplied, and this he believed could not be ascertained until the expected statements were before the house. when these were looked into, it was possible the house might be satisfied with respect to the expenditure of the money, and it would, therefore, be improper to appoint a committee to inquire into a matter which might so shortly appear satisfactory. if, on the other hand, these accounts should not be satisfactory, he would readily concur in the appointment of a committee of inquiry. mr. j. williams said, the gentleman from south carolina ought to recollect that the inquiry was produced by a further appropriation being called for. it might be best to defer the inquiry until the accounts which had been called for were laid before the house; and he should have been satisfied with the business taking that course, if a further appropriation had not been called for in the mean time. but when they are called upon to appropriate a further sum of money for any object, it was natural to inquire what was become of that already voted; and the only way of doing this was to appoint a committee who would look into all the different statements which had from time to time been laid before the house, and those which might shortly be communicated, and state their opinion thereon to the house. he thought those gentlemen who were most friendly to the frigates ought not to oppose the appointment of a committee; because, if it should appear that the money had been justly expended, there would be little objection to a further appropriation. mr. livingston said, from the full discussion of this subject, which, though incidentally produced, had taken place on a former occasion, he did not think it would either have been becoming or necessary to have again stated the reasons which gave rise to this resolution, especially as he felt an aversion to say any thing which might be unnecessary, or which might tire those who heard him. mr. l. said, that he had before observed that the patience of the house had been worn out by the repeated applications which had been made for money for this object; that the expense had exceeded all belief; that the most extended imagination could not have conceived an amount like that which congress had from time to time been blindly led to appropriate. but the proposition was objected to, because it would cast an odium upon our officers. this he was perfectly indifferent about. whatever might be the private opinion he had of the characters of these officers, however incapable he might believe them of doing wrong, or of acting corruptly, yet, when his duty called upon him to make an inquiry into the expenditure of public money, he was deaf to all considerations of a private nature. but, in this case, he did not see the necessity for this remark. the house had been told (he believed by the gentleman from south carolina himself) that the extraordinary expense had been occasioned by our inexperience in business of this kind, by the high price of labor, materials, &c. if this were the case, the result of the inquiry would be honorable to those concerned, and highly satisfactory to the house. it was a proceeding which our public officers ought to wish for; nay, gentlemen say they do wish for it. but, mr. l. said, it had been alleged, that the statements ordered a year ago to be laid before the house during the first week in this month, should be waited for before any inquiry took place. he would reply, if these officers had not, in the mean time, called upon the house for a fresh supply of money, this inquiry would not have been thought of. besides, the accounts asked for last year would not give the satisfaction required. the request only extended to all the expenditures previous to the st of january, . the house would wish to know what had been expended since, and they had no reason to expect further information than was asked for. mr. l. said every member who was present at the time must remember that whenever the house had been applied to for further appropriations, they had been told that the frigates would be ready for sea at such and such a time; and that they would then bear our flag triumphantly over the ocean. and yet, though the house had been four or five times deceived by these representations, they were told there was no ground for inquiry. for his part, he should consider himself as neglecting his duty were he not to call for this inquiry immediately; for, if the house were to wait a week for the statements called for, they might wait another for their being printed; they might then be found to be deficient, fresh statements might be necessary, and the session might expire without effecting the wished-for inquiry. he thought all parts of the house ought to favor the inquiry; for, he believed, if it should appear that frigates could not be built for less than $ , a piece, the project of a navy ought to be given up; but if, on the other hand, difficulties and expenses had occurred in the commencement of this business, which would not return, and their frigates may in future be built for half the sum, (which was his opinion,) there would be some encouragement to proceed in the business. mr. sewall was sorry that the gentleman from south carolina (mr. harper) had given the occasion, and that the gentleman last up had so eagerly seized it, to thwart any measures which might be necessary for the general defence, by ridiculing the resources of the country. the present, he said, was a time of danger and apprehension, and thus to talk of the resources of the united states added to the apprehension and the danger. the gentleman from south carolina had said, that to pass this resolution would be to pass an odium upon our public officers. he did not think so. he thought an inquiry of this kind at all times proper where there was any doubt as to the expenditure of money. he agreed with the gentleman from new york, that the inquiry (if it had a favorable issue, which he did not doubt) would forward the design of providing a navy; as it would appear that the extraordinary expenses had been such as it would not be necessary to incur in future. he was, therefore, sorry to hear the gentleman from new york first up (mr. williams) say he should be disinclined to vote any further appropriation until he saw how the last had been expended. however improvidently the money already appropriated had been expended, yet, in order to secure what had been voted, and to keep the work in progress, they ought to vote a further sum, as soon as wanted, whether the statements called for were received or not. mr. livingston desired to know wherein he had attempted to ridicule the resources of this country? the gentleman from massachusetts must excuse him when he asserted he had never made a more hasty or unfounded charge. if he had either ridiculed the resources, or thwarted any measures for the general defence of the united states, it must have arisen from a weak judgment, and not from any intention of doing so. but he was certain nothing which had fallen from him could be so construed. mr. sewall acquitted the gentleman from new york of any intention of lowering the appearances of the resources of this country; but he appealed to the house whether he had not spoken of this fleet with a degree of ridicule, when he represented it as governing the ocean. it appeared so to him at least. mr. harper again insisted upon the impropriety of going into this measure, from reasons similar to those which he had already given. mr. gallatin said, that the ground taken by the gentleman from south carolina (mr. harper) would prevent any inquiry whatever; for he stated that the house ought not to pass the present resolution, because certain statements had not been received, and because to pass it would be to imply a censure on our officers. so that on this ground no inquiry could be gone into without statements, as the house could not obtain statements without passing a resolution, that resolution would be construed into a censure, and therefore ought not to be passed. this mr. g. thought a very improper doctrine. it would never be in the power of the house to decide upon the propriety of statements by barely having them laid upon the table. monday, january . _naval expenditure._ mr. gallatin stated the different estimates which had been made to the house. in , he said, they were told that $ , would be sufficient to build six frigates. in , they were informed there had been a mistake in the matter, but that with $ , more three would be finished. in january, , the house was again called upon for $ , ; in july, in the same year, for $ , , and now for $ , more. such calculations, he thought, wholly unaccountable. mr. nicholas did not understand what the gentleman from connecticut meant by saying that this was wholly executive business. he did not believe, because the president had told the house that he was about to hold a treaty, that the money must be granted, and that the house had no choice whether they would appropriate it or not. from what had already been said upon the subject, he doubted not there was a pretty general disposition to grant the money; but it was not proper that the message should be sent to the committee of ways and means, as if an appropriation was a thing of course; to do this, would be to act at the _command_ of the president of the united states; whereas the house could only act upon the full exercise of its discretion. he therefore moved that the message be referred to the committee of the whole, which had already this subject under consideration. mr. gallatin believed the gentleman from connecticut had not considered this subject with his usual correctness. that gentleman had said that the message before them ought to go to the committee of ways and means, and that an appropriation should follow as a thing of course. it must be known that this was contrary to the practice of that house, or of any former legislature of the united states. on the contrary, it was usual, first to authorize an expense, and in the next place to appropriate; and in no case had the business been reversed. if the message were referred to the committee of ways and means, all they could do, would be to bring it back to the house, and ask for an authority for the expense. he believed the gentleman from connecticut had been led into this mistake by considering the message announcing the intention of the president to hold a treaty as a treaty made; and had that been the case, according to that gentleman's known opinion, he would consider the house as bound to make the necessary appropriation; but he desired him to recollect that no treaty was yet made; and, therefore, that that doctrine could not apply in the present case. mr. rutledge did not believe it was necessary or proper for that house to authorize the president to hold a treaty; but if it were necessary for him to hold a treaty, the concurrence of that house was necessary to enable him to do it, as it could not be done without money. it was requisite, therefore, to pass a bill, not to authorize the president to hold a treaty, but to enable him to do it. it was best, therefore, for the communication first to go to the committee of the whole, and afterwards to the committee of ways and means, in order for them to say where the money could be got. there was something in this case which pointed out this mode as peculiarly proper, as there seemed to be a disposition in the house, if the treaty should not succeed agreeably to the wishes of the president, to afford temporary relief to the persons now suffering from being driven from their land. the gentleman from connecticut had said, that the committee of ways and means could report an estimate of the probable expense which would be incurred in holding the treaty; but if he attended to the message of the president, he would find that this estimate was to be laid before the house by the proper department, so that there was no necessity of a reference to any committee for that purpose. the motion for a reference to the committee of the whole was carried, without a division. _william alexander._ on motion of mr. gregg, the house went into a committee of the whole on the report of the committee of claims on the petition of william alexander, surveyor of army lands. after reading a number of papers relative to the subject, the report, which went to authorize the treasury to settle the accounts of the petitioner, was agreed to, the committee rose, the house concurred, and a bill was directed to be brought in accordingly. _general kosciusko._ mr. pinckney, from the committee appointed to confer with the senate on the disagreement between the two houses on the bill for the payment of interest to general kosciusko, reported, that finding the business could be settled in a manner equally advantageous to the general, by agreeing to the amendment of the senate, as by the mode originally proposed, the committee recommend it to the house to recede from their disagreement to the senate's amendment. the recommendation was concurred in by the house. _civil appropriation for ._ on motion of mr. harper, the house resolved itself into a committee of the whole on the report of the committee of ways and means for providing for the expenses of the civil department for the year , and the blanks being filled (except in a few cases, in which they were left in blank) according to the estimate which had been laid before the house, the committee rose, the house concurred, and the bill was ordered to be reported accordingly. thursday, january . the speaker laid before the house a communication from the secretary of war, enclosing an estimate of the appropriations necessary for holding a treaty with the cherokee indians, which was in substance as follows: for three commissioners, ninety days, at eight dollars per day $ , incidental expenses of do. secretary, at four dollars per day rations of two thousand indians , presents to the indians , stores for the commissioners , incidental expenses , ------ , ====== this statement was referred to the committee of the whole to whom was referred the former message of the president on this subject. _persons imprisoned for debt._ the following message, with the papers to which they refer, was received from the president of the united states: _gentlemen of the senate, and gentlemen of the house of representatives_: a representation has been made to me, by the judge of the pennsylvania district of the united states, of certain inconveniences and disagreeable circumstances, which have occurred in the execution of the law passed on the th day of may, , entitled "an act for the relief of persons imprisoned for debt," as well as of certain doubts which have been raised concerning its construction; this representation, together with a report of the attorney general on the same subject, i now transmit to congress, for their consideration, that if any amendments or explanations of that law may be thought advisable, they may be adopted. john adams. united states, _january , _. this message, with the papers accompanying it, was referred to the same committee of the whole to whom was referred the report on the petition of william bell. _diplomatic intercourse bill._ mr. nicholas inquired with what sums the blanks in the bill were to be filled. mr. harper said he proposed to fill the first with $ , , and the last with $ , . mr. nicholas conceived this to be a good time for the house to attempt to bring back the establishment of the diplomatic corps to the footing on which it was settled at the commencement of the government, and continued down till the year ; and to prevent in future the probable increase which he apprehended from the recent examples, he thought it necessary to take a view of this subject, not only from the increase of expense, but from a variety of other considerations. it is not the manner in which a government is constituted which makes its operations easy and certain. but the execution of the powers of the government itself is no more to be considered than the nature of its formation; for i do believe there is a tendency in all governments like ours to produce a union and consolidation of all its parts into the executive department; and that the limitation and connection of the parts with each other, as settled in the constitution, would be destroyed by the influence i have mentioned, unless there is a constant operation on the part of the legislature to resist this overwhelming power. i think we have the most convincing proofs that a representative government can be made most oppressive and burdensome, and yet preserve all the forms which are given to it by a constitution; and the legislature shall appear to act upon its own discretion, whilst that discretion shall have ceased to exist. where the executive has an influence over the legislature, and the government is a representative one, the executive is capable of carrying its views into effect in a manner superior to what can be accomplished even in the most despotic monarchy; the mischief will be carried farther in the former case than in the latter, because the people will be more inclined to submit to the decisions of a government of its own choosing than to one which rules them by hereditary right; monarchs cannot carry their oppressions so far, without resistance, as republics. under this general view of the subject, he conceived it to be the duty of the legislature to guard cautiously its own independence, and to limit, as far as consistent with the general welfare, the influence of executive patronage. he conceived that this extension of influence of one branch of the government over another was strictly guarded by the constitution, which was framed on the principle of checks and balances--of departments acting and controlling each other; but he was sorry to see the idea of patronage drawn into a closer compass than it had formerly been, as it increased the evil. he was sorry for it, because it tended to manifest a circumstance which had been sought to be concealed. every insinuation that there was a division between the government and the people had been repelled as an insidious and malignant design; but the administration, by acting on a new principle, which he was too well assured was the fact, had established the idea that there was a division between it and a considerable portion of the people. the evidence of this fact had been long shown, and he feared the operation of circumstances of this nature on the public mind. he gave it as his opinion on our foreign intercourse, that the united states would be benefited by having no ministers at all. he did not think that we could be benefited by any sort of compact these foreign agents could form for us, for we only bound ourselves by any treaty we entered into, as we are totally incapable of enforcing the execution of the stipulations made by other nations by any offensive measures. it might be thought necessary to make commercial arrangements with some european powers; but, he asked, if they had the force to make a foreign country conform to its engagements? no gentleman would say that they had; therefore such regulations only tended to entangle ourselves, without rendering commerce any efficient aid. he would, therefore, leave our commerce to seek its own markets totally disembarrassed. all the protection we could furnish it with, consisted in officers of another grade than those mentioned in this bill: consuls who should reside in the seaports, and not ministers plenipotentiary residing in the interior. he did not intend by the motion he was about to make, that the whole diplomatic establishment should be destroyed at this time, but merely to reduce it to what it had been before the late increase. with this view he proposed to alter the bill so as to direct that there should be appropriated $ , for a minister plenipotentiary at london, and $ , more for another near the french republic, and that the president be left at liberty to reduce the ministers plenipotentiary at berlin, madrid, and lisbon, to ministers resident, which would diminish their salaries one-half--a resident minister being of a lower grade has only $ , per annum. he then went into a detail of the proceedings of the first congress, in order to show that it was admitted on all sides by that body, that the constitution vested the power of specifying and limiting the salaries of foreign ministers and consuls; he read the speeches of mr. lawrence, mr. sherman, mr. w. smith, of south carolina, mr. sedgwick, mr. huntington, and several others, from the congressional register, by which it appeared, that there was but one opinion on their powers under the constitution; and showed from hence, that the only reason why the house did not undertake to enumerate and fix the salaries of foreign ministers in detail, arose merely from the want of information as to the places where they should be fixed, and the sum necessary to cover their expenses. as his construction corresponded with that of the gentleman who fixed the principles upon which the government was put in motion, he was encouraged to expect his motion would succeed, seeing that the house had now had sufficient experience to enable them to say what were the regulations proper to be made. mr. harper supposed it would be remembered by all those gentlemen who had attended to the business of congress for several years past, that the doctrine of the gentleman from virginia was by no means new. the subject of foreign intercourse was never taken up, without that gentleman, or some other who agreed with him in sentiment, advancing these opinions; they never failed to speak of the danger to be apprehended from executive influence, from its power to appoint foreign ministers; that foreign intercourse was unnecessary; that our public affairs abroad were not to be attended to, and that commerce ought to be given up, or left to shift for itself. nor was this a doctrine confined to this country, or this age. whenever a set of gentlemen in any country found their views opposed by the measures of government, they became vexed, and attributed the proceedings of those who differed from them in opinion to any motive rather than the public good. the desire of executive favor, or executive offices, was an usual charge, and it was at this day well understood. it would also be remembered, that whenever the subject of foreign intercourse had been discussed, though these objections had been constantly made to it, they had been as constantly disregarded by the congress of the united states. the good sense of the country had weighed these objections in the balance, and declared them wanting; and he trusted the same fate would now meet them as heretofore. in aid of the $ , per annum, originally granted for this purpose, mr. h. said, various supplementary appropriations had been made. first, a sum of $ , , then a sum of $ , , and, in march last, $ , , and, in addition to this, $ , for a particular appointment. the house had, therefore, not only deemed it expedient to continue the original act, but to make additional appropriations from year to year. he thought the good sense of the country had never been more firmly shown than on this subject. but now a new course was to be taken, and all former proceedings declared to have been wrong. but it was said this country had no need of foreign ministers, and that commerce might be left to itself. he did not believe the house would think so. did not the united states trade with all the nations of the earth? how, then, was it possible to do without accredited agents to attend to our concerns in foreign countries? were we to give up our commerce? there were gentlemen, he knew, who would answer, yes. they would tell the house, commerce was a bad thing, and that it rather ought to be outlawed than protected. but was this the sense of the country? was it the sense of that house? would they discard the property of that class of citizens who depended upon it for their support and their wealth? or would they be ready to forfeit the revenue arising from it? mr. h. said he had often heard of the dangerous nature of foreign intercourse; but it was the discovery of a few men who believed that every thing which had been done by this government had been radically wrong. he trusted, however, the house would adhere to what it had so frequently sanctioned, and that the proposed amendment would not be agreed to. mr. gallatin believed that there were a number of people in the united states--people otherwise enlightened, and who, upon all common subjects, possessed sound understandings--who were fully convinced that there was a faction existing within the united states, and even within the walls of that house, who wished to demolish the government; and he further believed that this opinion was supported by such declarations as had been made by the gentleman from connecticut. he should be sorry that such a belief should be considered as dangerous to the safety of the community. nor could he consider the determination of the executive to employ only such persons as are of the same political opinions with themselves, as of such a nature as to produce fatal consequences, and that government, on that account, was unworthy of confidence. he believed that such a line of conduct must flow from the present state of parties in america, divided as the people were upon many important occasions. to say, therefore, that the executive employed persons of consonant political opinions to its own, was not to say the government did not deserve confidence. but if the committee turned their attention to the amendment proposed, it only went to declare that ministers to london and paris should not have a salary of more than $ , a year; and that ministers to other parts of europe should not have more than $ , . in support of this amendment, it was said that this was the ground upon which this government first fixed the business of foreign intercourse. he believed this statement correct. until the year , there was no minister plenipotentiary except at paris and london; at other places there were no higher grades than ministers resident. hence the committee might be led to argue the propriety of bringing back our foreign political intercourse to what it was before that period. he said foreign political intercourse; because he thought the gentleman from south carolina (mr. harper) had blended two subjects together, viz: foreign commercial intercourse, and foreign political intercourse. he did not believe it was the opinion of any gentleman in that house that commerce ought to be left to shift for itself, unattended to. he believed it was well understood that our commerce in foreign countries was attended to by our consuls and not by our ministers plenipotentiary; and consuls would exist if we had no ministers at all. therefore, all that gentleman's arguments, which tended to show that the amendment would affect our commercial intercourse, had no foundation whatever. returning to the question of foreign political intercourse: was it proper to bring it back to what it was eighteen months ago? and, before he proceeded further, he would observe that, though the gentleman from south carolina had been tolerably correct in his statements of the business, he was mistaken in one point, in which he would set him right. he had stated that the first additional appropriation was $ , ; but this sum was not appropriated for foreign intercourse, but for defraying the expense of the suits of our merchants in london. on the first of january, , there remained a balance of unexpended appropriation for this object, of $ , . to that day no extraordinary appropriation had been made; the whole allowance was $ , a year, which was found to be more than sufficient. on the th of may, , an estimate was sent by the president of the united states, stating the sums already appropriated for foreign intercourse, and that $ , were yet wanting, in order to change the establishment which had till that day existed, by sending ministers plenipotentiary to madrid and lisbon, instead of ministers resident. this estimate, he just stated, was received on the th of may, and the law received the signature of the president on the first of june, so that it could not have received a very full discussion (being passed just as the session was about to close) and he thought there was good reason for examining the thing again. the next appropriation was made in the second session of the fourth congress. in that session, he allowed, the additional appropriation was passed after full discussion. it was made upon an estimate stating $ , wanted; and, during last session, an appropriation was made for a minister to berlin, of $ , . the committee had been told that it would evince great versatility if they were all at once to change what had already been done. but it must be recollected, than when the change in the system was first made, it underwent little discussion; and he would venture to say, that our business abroad was as well done from the year to , as it had been done since. as the question was whether a larger or a smaller sum of money should be appropriated, he would call upon gentlemen in favor of the larger sum, to show what benefit was derived from madrid and lisbon by the change; what necessity there was for a minister at berlin, and what good was to be derived from giving a larger salary than $ , . the gentleman from connecticut had said, why send a minister plenipotentiary to london or paris, any more than the other courts? this was done at first, and the mover, he supposed, wished not to innovate upon the law as originally passed. but they were told it was improper, upon this floor, to say any thing about patronage, and that all arguments of that kind are well understood, and are by no means novel in their nature; that such complaints are made under all forms of government by discontented people out of office. to say that these complaints are well understood, was the same as to say that the ground upon which they complained was also well understood: it was to acknowledge, that persons who were in the favor of the executive had some advantages which persons in the other party desired or envied. to admit of one position, was to admit of the other. but, if no particular advantage was to be derived from governmental patronage, then the cause of jealousy, according to this doctrine, must cease. our government, he said, was in its child-hood; and if this patronage had any existence, it could not of course be as yet alarming. but he desired gentlemen to look at all governments where this power was placed in the executive, and see if the greatest evil of the government was not the excessive influence of that department. did not this corruption exist in the government which was constituted most similarly to ours, to such a degree as to have become a part of the system itself, and without which, it is said, the government could not go on? was it not, therefore, prudent to keep a watchful eye in this respect? he did not, however, speak against the power itself; it was necessary to be placed somewhere. the constitution had placed it in the executive power. if the same power had been placed in the legislature, he believed they would have been more corrupt than the executive. he thought, therefore, the trust was wisely placed in the executive; and though it was right to keep grants of money within proper bounds, in order to prevent the abuse of power, yet it was proper to grant all that was necessary. mr. g. concluded, by saying, that if he thought it was proper that our political intercourse should be extended, he should not support the amendment; but as the conviction was strong upon his mind that our foreign political intercourse had at least been as expensive as it ought to be; that it was owing, in a great degree, to our political intercourse with foreign nations, that our present critical situation was produced; that this intercourse produced more evil than good to us; that he wished to bring the business back to the state in which it stood in . if the wisdom of future legislatures shall think proper to abolish the establishment of foreign political intercourse altogether, it must be left to them to decide. he himself thought it would be going too far to do so at present. he believed, situated as we were, it was necessary to have some political intercourse; but he believed it would be best, by degrees, to decline it altogether. mr. sitgreaves.--the constitution and laws of the country had made certain offices necessary, and left it to the executive to fill them as he pleased; and was it for that house to attempt to control this discretion? if it were executed to the injury of the people, the constitution had pointed out the remedy to be by impeachment. but where was the crime, the offence, or the impropriety, of the conduct ascribed to the executive, if it had been adopted? would gentlemen say that the executive ought to appoint persons to office who professed an opinion contrary to its own? did gentlemen suppose that there was such a want of integrity in this department of government, that it adopted a political opinion which it did not believe to be right? and, if it were believed to act from principle, would it be prudent or right to admit to a participation in the execution of the important duties of government persons whose sentiments were not in unison with those of the executive, and who could only create discord and confusion, where nothing but harmony and union ought to prevail? if the executive acted upon just principles, it would endeavor to give singleness of design to its operations, and it could only do this by admitting persons into the government who thought with it. this would be a right, prudent, and honorable conduct; and where it had been deviated from (as he had before observed), government had received an awful lesson for its future conduct. the question whether that house had the power to interfere with the executive authority, by withholding appropriations, had been fully discussed in a former congress, and the opinion of the country was not now to be fixed on this subject. for that part of the house who thought the constitution had not vested them with the authority of controlling the executive, it was sufficient to say that the executive had thought it necessary to introduce the change in the diplomatic department, which was complained of, and that they felt themselves bound to carry his determination into effect; but those who think that the house of representatives may control the executive in this respect, will of course act accordingly. mr. baldwin said he perceived there was a real difference of opinion between the gentleman last up and himself. the gentleman supposed the diplomatic establishment was fixed by the executive, and the legislature had nothing to do with it but to provide the money. every person must see, even from a cursory view of the constitution, that this was designed to be a government of departments, legislative, executive, and judicial, to be kept distinct as far as possible. it was the business of the legislature to establish offices by law; it was the business of the executive to fill those offices. it would appear, from tracing back the law, now proposed to be continued, that it originated in this manner. he had not been notified of the subject as being likely to be called up to-day, and was not prepared to be as particular as he could wish as to facts. he had endeavored to refresh his recollection since it had been under discussion, and he found that it originated from the speech of the president, at the opening of the second session of the first congress, in which he said, "that the interests of the united states required that our intercourse with other nations should be facilitated by such provisions as will enable me to fulfil my duty in that respect; and to this end, that the compensations to be made to the persons who may be employed, should, according to the nature of their appointments, be defined by law." this part of the speech was referred to a committee, and from that originated this law. want of information, at that early time in the government, prevented their being as particular as they wished. they fixed a sum to each grade, and a sum beyond which the whole amount should not extend; limited the law to a short period, that it might be open to be corrected by experience. the present motion, if he had understood it, proposed now to be a little more particular in the establishment, by fixing the sum for particular places--to do the very thing then recommended by the president. the same has always been the intention of every succeeding congress, which was the reason why they continued it only for short periods, leaving it open to such amendments as should be suggested by experience. these ideas of the offices being first to be established by law, appeared not only to be the sense of the former president, and of each succeeding congress, as he had stated, but appeared also to be the opinion of the present president. at the last session he thought that a higher grade of office was necessary at algiers: this he stated in a message to congress--that as there were great expenditures of money on that coast, he thought it necessary that an establishment should be made which would enable him to appoint a very confidential person, on whom the other officers there should be dependent, and who should control their proceedings and expenditures. congress concurred in this opinion, passed a law for the establishment of the office, and then the executive appointed the officer. for these reasons he considered the question within their proper powers, and fairly open to their deliberation. at the close of the revolutionary war, the disposition of forming many treaties, and having extensive diplomatic connections with european powers, was carried even further than it has been since. it was among their first national acts, and discovered marks of youth and inexperience; a few years convinced them that they had gone too far, that this country had little to expect from treaties, and much to lose, and that many diplomatic connections were more frequently the cause of perplexity and embarrassment, than of any national advantage. the congress under the articles of confederation were extricating themselves from that policy as fast as possible; as these expired in course, they were careful not to renew them. for several of the last years of that congress he well recollected that clusters of candidates for these appointments, supported by powerful interests and connections, were uniformly resisted; and, if he mistook not, when this government came into operation, this country had but one minister in europe. the conviction on this subject was so strong, and experience had so fully settled it as the true policy, that it remained immoveable for some time after organizing the present government. all appropriations for foreign ministers were refused at the first session, as far as he recollected. at the second session it was urged, in the speech of the president, as before stated, and enforced by more particular explanations to individuals, as designed to be for temporary purposes, respecting the northern forts and the property that was withheld. under these explanations a law passed, as before explained. it was true, this policy had been of late, in some measure, departed from. he thought experience had already been useful to them in this course also, and ought to administer caution to them in seeking to intermingle in european politics. ambassadors and ministers cannot be entirely indifferent to the characters and events with which they are constantly surrounded; the share they take is very apt to be exchanged between the countries to which they belong. he did not wish to be too particular on that point; he was persuaded facts enough presented themselves to the recollection of every member, to confirm his remark. it might be said that on this also we have an awful lesson. if evil had been experienced from this cause, he hoped it would operate as a reason to endeavor to diminish it. he thought it not unreasonable for the house to interpose their restraining power as to granting money, and the more particular establishment of the officers, and thus aid the other departments of the government in bringing back, by degrees, this part of our policy to its former principles, so well sanctioned by experience. whether the present motion was well timed, or whether it was best to give it another short limitation, before we went into a definite establishment, was another question, on which he was willing to hear more remarks. informed as he was at present, he should vote for the motion, and thought they might make some amendments to the former bill, already suggested by experience, and which would be useful. the committee rose, and had leave to sit again. friday, january . _foreign intercourse._ the house again resolved itself into a committee of the whole on the bill providing the means of foreign intercourse, when mr. pinckney rose. he understood the amendment was intended to confine our ministers plenipotentiary to london and paris, and that no higher grade than ministers resident should be employed in any other country. he was opposed to this change at this time, and to the mode proposed of doing the business, if the time were seasonable. it was proper that at this juncture our ministers should remain as they were, as it was prudent to derive all the influence and advantage we could from the situation of our agents in europe, who would not only be enabled to communicate more correct information from thence, than could be derived from any other source, but who could also explain the motives and objects of this government, and by that means remove any unfavorable impressions which may be attempted to be given with respect to this country; and thereby put our business in the best train for securing the neutral standing which we have taken. he was against it for another reason. to change the diplomatic intercourse in the way proposed, would be forcing upon the executive a measure contrary to its wishes. it would also be affording testimony to the charge heretofore made, that there was a division in the government and the people--a situation in which many wished to see us. he should be sorry to afford the appearance of one department of government having forced upon another a change of measures of which they are the competent judges, and upon which they have acted. as it was well known that there was a very intimate connection between spain and holland, and the country with whom we have at present a misunderstanding, he should be unwilling to deprive this country of the advantages to be derived from having ministers at those places; besides, if our ministers were to be recalled from thence, it would be considered as an extraordinary proceeding; and might be construed as intended to be hostile to them. whatever influence spain or holland may have in the councils of the country which he had alluded to, by continuing our ministers there, it was probable that weight would operate in our favor. there was an additional reason with respect to spain. it was well known that we had points yet to settle with that country. our treaty with that power was not yet carried into effect, and negotiations might at this time be going on in relation to it, which might be frustrated by the recall of our ministers. mr. nicholas wished to explain his intentions in bringing forward this amendment. he believed the gentleman last up would find they nearly corresponded with his own. he had no idea of putting an immediate veto upon the ministers at present employed. he considered this bill, though passed with a limitation, as a permanent system, and a subsequent clause of the bill would enable the committee to fix the time at which the salaries of ministers should cease. his wish was to put a limit to this extension of executive power. he reminded the gentleman from south carolina that holland was not concerned in this bill, as we had only a minister resident there. if the subject were further dilated upon, he should offer some further remarks upon it. mr. n. smith was surprised to hear the gentleman last up considered that as a permanent provision which was limited to a duration of two years. this law was merely temporary in its nature, and if he only contemplated some future regulations in our foreign intercourse, his amendment was not now necessary. however competent it was for the legislature to settle the salary of ministers, it was clear the legislature had no power, by the constitution either to determine the number of foreign ministers to be employed, where they should be sent, or what should be their grade. under the general power of making treaties, vested in the president, he had the power of sending ministers where he pleased; also in the power intrusted to him of executing the law (not only the municipal, but the law of nations) it was necessary he should have this power. in a word, all relations were in the hands of the executive; all our foreign intercourse was to him, and from him. of course, he was the only judge of what was proper in this business. this being the case, it should seem as if that house had nothing to do with respect to the propriety of sending a minister to berlin, or in relation to other grades of ministers, though they had the power of fixing their salaries. but it was contended by the gentleman from georgia and others, that, by regulating these salaries, the legislature had the power of preventing the extension of their establishment. this brought up an old question; but it was a very important one, and he did not regret that it was frequently drawn into discussion. he thought the great landmarks of our constitution could not be too well understood. he did not mean, however, to extend his observations on this subject. it was said, this was a government of departments and checks, and of course, that the legislature ought to check the executive in its operations. that this was a government of departments and checks, to a certain extent, he should readily allow; but that it was so to the extent which had been represented, he did deny. our government was divided into three departments, the legislative, executive, and judicial; each of these had checks and balances in its own department. the president was checked by the senate; the legislature was checked by the president and senate; the judiciary was checked by having certain appeals, writs of error, &c. so far from one department checking the other, it was necessary that all the parts should act in unison like a clock, and the moment one part declined to act, the government could not proceed. it was not in the power of the legislature to reverse the decision of the lowest court, and should it then be said that they could judge over the head of the executive? this remark was applicable to all the departments. no one department was a favorite of the constitution. every act of a department ought to be considered as well done. this being the case, whenever the president had appointed a minister, and done it constitutionally, when he informed the legislature thereof, they might do any thing and every thing but doubt the propriety of establishing the minister. mr. harper.--as to the general policy of the present motion, as connected with the foreign relations of this country, mr. h. said that he would add two or three remarks on that subject, and then conclude. the motion went, he said, to reduce the appointments and salaries of three ministers: those to madrid, lisbon, and berlin; and in support of the motion, it was alleged that the last of these ministers was entirely unnecessary, and that the other two had been improperly, because unnecessarily, raised from ministers resident to ministers plenipotentiary. to him it was a sufficient answer to these allegations to say, that the president had thought otherwise; because, the president, being charged by the constitution with the foreign relations of the country, must be invested with the means necessary for conducting them with effect; and was infinitely better qualified by this situation to judge what those means were, and how they ought to be used, than the house can pretend to be. one of these means was the appointment of foreign ministers, which was expressly vested in the president by the constitution. when the president, therefore, had thought fit to appoint foreign ministers, or to alter their grades, he had exercised a constitutional power, and it did not lie with the house of representatives to object or judge. to him, therefore, mr. h. said, it was a sufficient answer to all those objections to say that the president had thought otherwise. to others, who might hold different opinions from him on this subject, he thought it was a sufficient answer to be told that the house of representatives, as well as the president, had thought differently, and had sanctioned the changes which he had thought proper to make in this respect, by voting money to carry them into effect. this the house had done expressly in all the three cases contemplated by the present motion. mr. gallatin said the committee had been told, in the course of the debate, by some gentlemen, that this attempt to reduce the number of our ministers was unconstitutional; by others, that it was inexpedient; and even some gentlemen, who agreed to the general expediency of the measure, believed it would be attended with inconvenience from our present foreign relations. in relation to the constitutionality of the thing, he did not believe, whatever doctrine was supported with respect to treaties, that upon this occasion the committee should be told that they were interfering with the constitutional power vested in the president. it was true that he had the general power of appointing ambassadors, but it was not less true that the legislature had the sole and exclusive power to provide for all the expenses of the union. hence arose the idea of ours being a government of departments, so formed as to be a check upon each other. but the gentleman from connecticut (mr. n. smith) said there was no such thing as a check of departments; that each was distinct; and, though each had checks within itself, none of them checked the other. and to illustrate his position, he introduced the simile of a clock, at the same time that he told them that the executive department was the main-spring which put the clock in motion, whilst mr. g. supposed he meant that the other branches were merely the hands, which moved as they were directed. but if there was any act which could not be done but by all the branches, each had its share in deciding upon the propriety of it. when a treaty was made it had been argued that that house had nothing to do but carry it into effect; but here it was said that the house were bound to provide for every ambassador appointed; and if, by withholding salaries, they obliged the president to send ministers resident where he wished to send ministers plenipotentiary, they would act inconsistently with the constitution. though gentlemen might make speeches on this subject, they must know that where the legislature had a right to act, it had a right to deliberate and to use its discretion. it was true treaties had been made, but no treaty had been made since the adoption of the present government, by ministers resident at any court at the time. if any benefits were derived to the country from the british treaty, they must be attributed to the envoy extraordinary, and not to our minister at that court. and when our treaty with spain was concluded, it was necessary to send a minister resident to another court to do the business. since our treaties were always made by special envoys, what advantage could it be to have numerous ministers plenipotentiary in europe? in the present critical situation of the country, agitated as it was to the centre, was it not to be apprehended that our ministers would participate, in some degree, in the party spirit which there abounded, and rank themselves on one side or the other, which would have a tendency to draw this country into a vortex from which we were so happily separated by the atlantic? we were the only nation, he said, who possessed a government on a firm foundation, in which civil and religious liberty was fully recognized; we, therefore, enjoyed what the people of europe were seeking after. we have nothing to wish, except to remain in our present situation. why, then, should we hazard the being involved in european broils? he had before stated that consuls were equal to every commercial regulation, and he had heard nothing to change his opinion. seeing, therefore, that these diplomatic agents were rather dangerous than useful, he thought it time to put a stop to their increase. mr. bayard began his observations by remarking, that the gentleman from virginia had said that it was not his design that his motion should have an immediate effect upon the ministers at present employed. if the gentleman was sincere in his avowal, it was clear that he did not understand his own motion; for whatever amendment was introduced into the third section, which the gentleman had intimated might be so amended as to give the regulation a distant operation, as it only related to the sum of money to be appropriated, it would not enable the president to employ a minister plenipotentiary, besides those at london and paris, at a higher salary than $ , . some gentlemen have said, it was idle talk about this house having the power to appropriate, without having the power at the same time to use their discretion. he contended that the power of appointing ministers was vested in the president, and the house had no right to believe he would abuse this power. it had been supposed by the gentleman from pennsylvania, that he might appoint an indefinite number of ministers; and were the house, in that case, he asked, blindly to appropriate for them? this question was predicated upon an abuse of power, whilst the constitution supposed it would be executed with fidelity. suppose he were to state the question in an opposite light. let it be imagined that this country has a misunderstanding with some foreign power, and that the executive should appoint a minister, but the house, in the plenitude of its powers, should refuse an appropriation. what might be the consequence? would not the house have contravened the constitution, by taking from the president the power which by it is placed in him? it certainly would. so that this supposition of the abuse of power would go to the destruction of all authority. the legislature was bound to appropriate for the salary of the chief justice of the united states, and though the president might appoint a _chimney-sweeper_ to that office, they would still be bound. the constitution had trusted the president, as well as it had trusted that house. indeed it was not conceivable that the house could act upon the subject of foreign ministers. our interests with foreign countries came wholly under the jurisdiction of the executive. the duties of that house related to the internal affairs of the country; but what related to foreign countries and foreign agents was vested in the executive department. the president was responsible for the manner in which this business was conducted. he was bound to communicate, from time to time, our situation with foreign powers; and if plans were carried on abroad for dividing or subjecting us, if he were not to make due communication of the design, he would be answerable for the neglect. tuesday, january . _breach of privilege._ mr. sewall then said, he believed the business which he had to lay before the house would require secrecy, as it was a subject which would considerably affect the feelings of the members of the house. he therefore moved that the galleries might be cleared; which was accordingly done, excepting the members and clerk. mr. sewall then said, that he had been informed, in a manner which left no doubt of the truth of the fact, that, in the presence of the house whilst sitting, matthew lyon, a member from the state of vermont, did this day commit a violent attack and gross indecency upon the person of roger griswold, another member of this house; and in order to bring the subject before the house, that he had prepared a resolution, which he read in his place, and delivered in at the clerk's table. a question was then taken in the following words: does the matter so communicated require secrecy? this motion passed unanimously in the negative, and the galleries were opened. the house then proceeded to consider the motion made by the member from massachusetts, which was read, as follows: "_resolved_, that matthew lyon, a member of this house, for a violent attack and gross indecency committed upon the person of roger griswold, another member, in the presence of the house, whilst sitting, be, for this disorderly behavior, expelled therefrom." it was moved that this resolution be referred to a committee to be denominated a committee of privileges, with instruction to inquire into the whole matter of the said resolution, and to report the same with their opinion thereon to the house. the question was taken by yeas and nays, and decided in the affirmative, to . _ordered_, that messrs. pinckney, venable, kittera, isaac parker, r. williams, cochran, and dent, be a committee for the purpose. a motion was then made that the house come to the following resolution: "_resolved_, that the house will consider it a high breach of privilege if either of the members shall enter into any personal contest until a decision of the house shall be had thereon." a motion was made to add the following words to the end thereof: "and that the said matthew lyon be considered in the custody of the sergeant-at-arms until the further order of the house." the yeas and nays were taken upon this question and decided in the negative-- to . thursday, february . _breach of privilege._ the speaker informed the house that he had received a letter from a member from vermont, which he was requested to lay before them. mr. rutledge thought, that in all cases, when letters were sent to the speaker to be laid before the house, it would be proper for him to state the substance of such communications before they are read, otherwise improper matters might be brought before them. the speaker allowed that the suggestion was a proper one, and proceeded to state the contents of the letter in his hand; which having done, the reading of it was called for, and it was read as follow: _to the speaker of the house of representatives_: sir:--as the attention of the house of representatives has been called to my conduct in a dispute with mr. griswold on a suggestion of its being a violation of the order of the house, and the respect due to it from all its members, i feel it incumbent on me to obviate the imputation of intentional disrespect. permit me, sir, through you, to assure the house of representatives that i feel as much as any of its members the necessity of preserving the utmost decorum in its proceedings; that i am incapable of an intentional violation of its rule; and that, if, in the present instance, i am chargeable with a disregard of them, it is owing wholly to my ignorance of their extent, and that the house of representatives claimed any superintendence over its members when not formally constituted, and when they are not engaged in actual business. if i have been mistaken in my understanding on this subject, i beg the house to believe that my fault has been without intention, and that i am very sorry that i have deserved its censure. i am, sir, your obedient servant, matthew lyon. _february , ._ the reading of the letter having been gone through, a member proposed that it should lie on the table, when mr. macon said, that as it was an acknowledgment of improper conduct, he thought it ought to be entered upon the journals. mr. nicholas moved that the letter be referred to the committee who have this subject under consideration. gentlemen would recollect, he said, that, on a former occasion, when an offence of the same nature was committed, a letter written by the offending member was not only referred, but was also deemed a sufficient apology to the house. he did not know that this would be the case in the present instance; but that it might be, was evinced by the case to which he alluded. he hoped, therefore, it would be referred. agreed to. friday, february . _breach of privilege._ mr. venable from the committee of privileges, made the following report: the committee of privileges, to whom was referred a resolution on the th of january, charging matthew lyon with disorderly behavior, with instructions to inquire into the whole matter thereof, and to report the same, with their opinion thereon, to the house, having examined several witnesses on oath touching the subject, report: that, during the sitting of the house of representatives on the th day of january, , the tellers of the house being engaged in counting the ballots for managers of the impeachment against william blount, the speaker had left his chair, and many members their seats, as is usual on such occasions; the speaker was sitting in one of the member's seats, next to the bar of the house, and several members near him, of whom mr. griswold was one. mr. lyon was standing without the bar of the house, leaning on the same, and holding a conversation with the speaker. he spoke loud enough to be heard by all those who were near him, as if he intended to be heard by them. the subject of his conversation was, the conduct of the representatives of the state of connecticut, (of whom mr. griswold was one.) mr. lyon declared that they acted in opposition to the interests and opinion of nine-tenths of their constituents; that they were pursuing their own private views, without regarding the interests of the people; that they were seeking offices, which they were willing to accept, whether yielding $ , or $ , . he further observed that the people of that state were blinded or deceived by those representatives; that they were permitted to see but one side of the question in politics, being lulled asleep by the opiates which the members from that state administered to them; with other expressions equally tending to derogate from the political integrity of the representatives of connecticut. on mr. lyon's observing, that if he should go into connecticut, and manage a press there six months, although the people of that state were not fond of revolutionary principles, he could effect a revolution, and turn out the present representatives--mr. griswold replied to these remarks, and, amongst other things, said that, "if you go into connecticut, you had better wear your wooden sword," or words to that effect, alluding to mr. lyon's having been cashiered in the army. mr. lyon did not notice the allusion at this time, but continued the conversation on the same subject. mr. griswold then left his seat, and stood next to mr. lyon, leaning on the bar, being outside the same. on mr. lyon's saying he knew the people of connecticut well, having lived among them many years--that he had frequent occasion to fight them in his own district, and that he never failed to convince them--mr. griswold asked, if he fought them with his wooden sword, on which mr. lyon spat in his face. the committee having attentively considered the foregoing state of facts, and having heard mr. lyon in his defence, are of opinion that his conduct in this transaction was highly indecorous, and unworthy of a member of this house. they, therefore, recommend the adoption of the resolution submitted to their consideration by the house, in the words following, to wit: "_resolved_, that matthew lyon, a member of this house, for a violent attack and gross indecency, committed upon the person of roger griswold, another member, in the presence of the house while sitting, be for this disorderly behavior expelled therefrom." the report having been read, mr. lyon said, he did not think the evidence was stated in its full extent in this report. he wished, therefore, before the house proceeded in the business, they would hear the evidence themselves. mr. harper inquired of the speaker whether that was the usual mode of proceeding? the speaker said, it was necessary first to take up the report for a second reading. mr. macon observed that this was a very delicate and a very serious question, as it related to one of the members of that house, and as it respected the dignity of the house itself. he hoped, therefore, the report would be printed, that some time would be given to consider it, and that the house would themselves hear the testimony. the punishment which the report proposed was equal to death itself. he hoped, therefore, it would not be acted upon hastily, but made the order of the day for monday. mr. harper did not wish to press the business in an improper manner, as it was certainly of great importance to a member of that house, to the house itself, and to the dignity of the country. it was usual to have all reports of any consequence printed, and a day or two given for consideration. he was not himself desirous of delay, as he was at present ready to vote upon the question; but, if other members wished it, he should not object to the motion proposed by the gentleman from north carolina. mr. nicholas took it for granted, that, whenever this subject came up, the house would think it necessary to go into an examination of the witnesses themselves, and not rely upon the manner in which their testimony had struck others. he thought it would be best, therefore, whilst the report was printing, to go on in the examination of witnesses. the question for postponing till monday was put and carried. mr. nicholas said, he had no objection to wait for the printing of the report, before the house proceeded to examine the witnesses, but he should not waive the right of having them re-examined before the house. monday, february . mr. d. foster reported a bill for the relief of oliver pollock, which was committed for wednesday. _french outrages._ the following message was received from the president of the united states: _gentlemen of the senate, and gentlemen of the house of representatives_: i have received a letter from his excellency charles pinckney, esq., governor of the state of south carolina, dated the d october, , enclosing a number of depositions and witnesses to several captures and outrages committed within and near the limits of the united states, by a french privateer belonging to cape francois, or monte christo, called the vertitude or fortitude, and commanded by a person of the name of jordon or jourdain, and particularly upon an english merchant ship named the oracabissa, which he first plundered and then burned, with the rest of her cargo, of great value, within the territory of the united states, in the harbor of charleston, on the th of october last. copies of which letter and depositions, and also of several other depositions relative to the same subject, received from the collector of charleston, are herewith communicated. whenever the channel of diplomatical communication between the united states and france shall be opened, i shall demand satisfaction for the insult and reparation for the injury. i have transmitted these papers to congress, not so much for the purpose of communicating an account of so daring a violation of the territory of the united states, as to show the propriety and necessity of enabling the executive authority of government to take measures for protecting the citizens of the united states and such foreigners as have a right to enjoy their peace, and the protection of their laws, within their limits, in that as well as some other harbors which are equally exposed. john adams. united states, _february , _. this message, with the documents accompanying it, was referred to the committee for considering on proper measures for the protection and defence of the country. _breach of privilege._ mr. sewall moved the house to take up the report of the committee of privileges, in order that it might be committed to a committee of the whole. mr. r. williams wished to know whether evidence could be heard in a committee of the whole. the speaker said, the house might authorize the committee of the whole to hear evidence. mr. sewall moved the report to be committed. if gentlemen wished evidence to be heard before the committee, they would, of course, make an addition to his motion. for his own part he thought it unnecessary. mr. nicholas had no objection to evidence being heard before a committee of the whole, except that it might involve the subject in some embarrassment; as it was possible that a majority of the committee might come to a decision which, according to the constitution, it would require two-thirds of the house to confirm. he saw no reason for going into a committee, except that the speaker would have to give his testimony; but he did not see why the speaker might not give his testimony from his seat, as well as from any other place. by going into a committee, the subject would take up a longer time than it otherwise would do, as they should have twice to go over the same ground. mr. r. williams was in favor of hearing the evidence before the committee. mr. thatcher was not of opinion, with the gentleman from virginia, that this matter should be run over as soon as possible. he thought it of infinite importance, as it respected the dignity of the house and the people at large, and he hoped it would go through every form of the house. the question for a commitment was put and carried, and it was made the order for this day. mr. nicholas then moved that the committee of the whole be authorized to examine testimony, and called for the yeas and nays upon the question; which being agreed upon, they were taken, and, so little opposition was there to this mode of proceeding that the question was carried, to . the negatives were messrs. gordon, sewall, sitgreaves, and thatcher. mr. d. foster moved that the committee should be authorized to report the whole of the evidence, as he thought it was important it should be entered upon the journals. carried. the house then resolved itself into a committee of the whole, mr. dent in the chair, on this subject. mr. thatcher said it would be necessary that a judge should attend to administer an oath to the members who should be called upon to give their testimony. the chairman informed the committee that the judge of the district court was in the house. judge peters was accordingly called upon. mr. rutledge desired an oath might be administered to the speaker, messrs. s. smith, brooks, hosmer, coit, dana, goodrich, and champlin; which was accordingly done. mr. rutledge said, if there should be occasion, he should also call upon judge chipman, a senator from vermont, as an evidence. mr. chipman was, towards the close of the sitting, also sworn. some conversation took place as to the best mode of taking the evidence, whether, as it was to be reported to the house, it should be received from the witnesses in writing, leaving them to be questioned afterwards by the members of the committee, or whether it should be given _viva voce_, deliberately, and taken down by the clerk. the latter mode was at length adopted, and the speaker proceeded to give his testimony. [taking the testimony in this case, and the debates upon it, occupied the house until the th of february, when, a motion having been made to amend the resolution of expulsion, by substituting a reprimand, a vote was taken on that question, and negatived-- to . the vote was then taken on the resolution of expulsion, and stood yeas , nays . the constitution requiring two-thirds of the members present to carry a vote of expulsion, the resolution was declared by the speaker to be not carried. the following were the yeas and nays:] yeas.--george baer, jr., bailey bartlett, jas. a. bayard, david brooks, stephen bullock, christopher g. champlin, john chapman, james cochran, joshua coit, william craik, samuel w. dana, thomas t. davis, john dennis, george dent, thomas evans, abiel foster, dwight foster, jonathan freeman, henry glenn, chauncey goodrich, william gordon, william barry grove, robert goodloe harper, thomas hartley, william hindman, david holmes, hezekiah l. hosmer, james h. imlay, john wilkes kittera, samuel lyman, james machir, william matthews, daniel morgan, lewis r. morris, harrison g. otis, isaac parker, josiah parker, john read, john rutledge, jr., james schureman, samuel sewall, wm. shepard, thos. sinnickson, samuel sitgreaves, nathaniel smith, peleg sprague, george thatcher, richard thomas, mark thompson, thomas tillinghast, john e. van allen, and peleg wadsworth. nays.--abraham baldwin, david bard, lemuel benton, thomas blount, richard brent, nathan bryan, samuel j. cabell, thomas claiborne, wm. charles cole claiborne, matthew clay, john clopton, john dawson, lucas elmendorph, wm. findlay, john fowler, nathaniel freeman, jun., albert gallatin, william b. giles, james gillespie, andrew gregg, john a. hanna, carter b. harrison, jonathan n. havens, walter jones, edw. livingston, matthew locke, nathaniel macon, blair mcclenachan, joseph mcdowell, john milledge, anthony new, john nicholas, thompson j. skinner, samuel smith, william smith, richard sprigg, jun., richard stanford, thomas sumter, abram trigg, john trigg, philip van cortlandt, joseph b. varnum, abraham venable, and robert williams. wednesday, february . _quakers' memorial._ mr. sitgreaves moved the order of the day on the report of a select committee on the memorial of the people called quakers; which motion being agreed to, the house went into a committee of the whole on the subject, mr. dent in the chair. the report having been read as follows: "that, inasmuch as the said memorial and address presents, in general terms only, certain subjects to the consideration of the legislature, without containing any definite state of facts, or any specific application for its interposition, the memorialists were desired to exhibit a particular view of the grievances of which they complained, in order that the attention of the house might be directed to precise objects, and that it might be better discerned whether the complaints of the memorialists were of a nature to justify legislative interference: "that, in consequence of this request, the memorialists laid before the committee the representation and documents which accompany this report: "that, on the subject of this representation, the memorialists were invited to confer with the committee, and were solicited to suggest the remedy which they conceived it to be in the power of congress to apply to the case, as stated by them: "that the committee, after several conferences with the memorialists, and an attentive consideration of the subject, are very clearly of opinion that the facts disclosed in the said representation are exclusively of judicial cognizance; and that it is not competent to the legislative authority of congress to do any act in relation to the matter thereof: "wherefore the committee recommend the following resolution: "_resolved_, that the memorialists have leave to withdraw the said memorial and address." mr. thatcher could not say that he was perfectly satisfied with the report of the committee in all its parts. he wished the business disposed of without coming to any decisive resolution upon it, so as either to approve or disapprove of it. he was not ready to say that the facts disclosed in that memorial were exclusively of judicial cognizance, and that the legislature of the union was incompetent to do any thing in it. it might, however, be true, but it was not clear to him. he would rather that the subject should not now be acted upon: he would, therefore, propose an amendment to the report, which might conclude the business without coming to any resolution upon it, which had been the course heretofore taken with similar applications. he moved, therefore, to strike out the resolution giving the petitioners leave to withdraw their petition; and if his motion was agreed to, he should wish the committee to rise, and that the house would not act further upon it at present. mr. rutledge said, he, as well as the gentleman from massachusetts, was dissatisfied with the report of the select committee. he thought the report ought to have stated that the peace of certain states in the union had been much disturbed by applications of this kind. he had prepared a resolution to this effect, which he would read in his place. it was as follows: "_resolved_, that part of the memorial of the people called quakers has a tendency to disturb the tranquillity of some of the states of the union; that this house is not competent to act upon it, and therefore they have leave to withdraw their memorial." there could be little difference of opinion on the assertion that the internal tranquillity of several states had been disturbed by these applications; and he believed there would be no difficulty in obtaining a majority of the house to declare it; as, if the representatives of three or four states were to rise and declare the fact, it must have sufficient weight to carry a declaration of this kind. he had, however, mentioned the matter to some of his friends, and found it was not very agreeable to them, as they wished to get rid of the business without debate. but if the present motion were to obtain, he should afterwards bring forward this resolution. the chairman declared the motion of the gentleman from massachusetts out of order. the question on the resolution, as reported, was put and carried, there being votes in the affirmative. the committee then rose, and the house concurred in the report. thursday, february . _fracas in the house._ [about a quarter past eleven o'clock, after prayers, whilst the speaker was in his chair, and many members in their places, but before the house had been called to order, and before the journal had been read, mr. griswold entered the house, and observing mr. lyon in his place (who was writing) he went up to him with a pretty strong walking stick in his hand, with which he immediately began to beat him with great violence. mr. g.'s approach was observed by mr. lyon, but before he could get from behind his desk he had received some severe blows. as soon as he got on the floor of the house he endeavored to lay hold of mr. g. (having no stick or weapon in his hand) but he was prevented from doing so by mr. g.'s falling back, and the continual blows with which he was assailed. at length getting behind the speaker's chair, mr. l. snatched up the tongs from the fire; the combatants then closed and came down together upon the floor, mr. g. being uppermost. the members in the house, who till now seemed to look on with amazement at the scene, without an attempt to put an end to it, got round the parties, and separated them, but not before mr. l. had aimed a blow at mr. g.'s head with the tongs, but which he parried off. the speaker was now called upon to desire the members to take their seats and form the house. whilst this was doing, the two enraged members met again without the bar, and, but for the doorkeeper and some gentlemen present, would have renewed the combat. order having been obtained (at least as much as it was possible to obtain from the agitated state of the house) the clerk proceeded to read the journal, and the business of the day was entered upon. it continued till one o'clock, when from the perturbation which was naturally occasioned by such a scene, and it being evident that business was very little attended to by a great part of the house, a motion for an adjournment was made and carried. it will be seen that no notice was taken of this proceeding in the course of the sitting.] friday, february . _case of griswold and lyon._ immediately upon the journals having been read, mr. davis, of kentucky, rose and proposed the following resolution for the adoption of the house: "_resolved_, that roger griswold and matthew lyon, members of this house, for violent and disorderly behavior committed in the house, be expelled therefrom." mr. nicholas hoped the resolution would be permitted to lie on the table. mr. davis saw no reason for delaying a decision upon this resolution. he thought the conduct of these gentlemen had been so grossly violent, and so notorious to most of the members of the house, that there need be no hesitation in deciding upon it. if gentlemen wished, however, to take the same course which had been adopted on a former occasion, he should not object to it, though he thought it unnecessary. it was needless, now to say any thing as to the necessity of preserving the dignity and honor of that house; enough had already been said, and he thought pertinently said, on a former occasion on this subject. and as he believed neither the dignity, the honor, or peace of that house could be preserved whilst these members remained in it, he hoped the house would be unanimous in voting their expulsion. mr. thatcher did not see why the innocent should be punished with the guilty. the gentleman who brought forward this proposition, he supposed, did not wish this. from what he saw of the affray, he did not think mr. lyon deserved to be punished for the part he acted. he certainly received a severe beating, but he appeared to be passive from the beginning to the end; and he did not think mr. lyon ought to be expelled because he was beaten. as to any investigation of what happened yesterday, he did not think it necessary, as most of the members of that house were eye-witnesses to the fact. but the gentleman said there would be no peace until these members were expelled. he did not know from what he drew his conclusions. what was done yesterday was done before the house was in session; and it had already been determined that acts of violence committed without the bar, during a session of the house, are not causes of expulsion. he did not know, therefore, how gentlemen would support the doctrine that a member ought to be expelled for an act of violence done before the house was in session. it might be necessary, however, to investigate other facts connected with these. mr. j. parker seconded the motion for the expulsion of these members, because he believed there would be no peace in the house until they were expelled. he was sorry the gentleman from massachusetts should have said he saw nothing but what was passive on the part of mr. lyon. he himself saw more, and that gentleman must have seen it if he had his eyes about him. he said, that after the offending members had been separated mr. lyon met mr. griswold without the bar of the house and began to belabor him with his cane, when they were again separated. the attack of yesterday, mr. p. said, at a time when the house ought to have been in session though it had not come to order, would fix an indelible stain upon it; and if these members were not expelled, no member could consider himself as safe in his seat. such a transaction would certainly lower that house in the estimation of their constituents. he had even heard this morning, as he came to the hall, persons in the street call out, "there is nothing to do in congress to-day--there's no fighting going on!" in order to get rid of these reproaches, he hoped all parties would unite in expelling these members. if their constituents chose to send them back, he hoped no member would associate with or take notice of them. and if a vote of expulsion should be agreed upon, he would afterwards move to expunge from the journals all the entries relative to these disgraceful proceedings. mr. nicholas wished the motion to lie upon the table for the present, because he was not himself prepared to decide upon the subject; he wished, also, that whenever the motion was taken up, gentlemen might come with their minds determined upon it, so that a long debate might not be necessary. he therefore moved to postpone the consideration of this resolution to monday. mr. gordon wished to know what part of the resolution the gentleman from virginia was not ready to act upon? mr. nicholas did not understand the drift of the gentleman's question. if he meant to ask whether he (mr. n.) disapproved of the vote which he had already given, he would answer him _he did not_. mr. j. williams said he should approve of the motion for postponement, if it were made for to-morrow, instead of monday; and he hoped the business would not only be taken up to-morrow, but be concluded before they rose. he had sat with great patience during the late debate, but he should be opposed to going into any further lengthy proceedings on so disagreeable a subject, which would prevent them from doing the business of the nation, for which they were sent. mr. nicholas had no objection to make the question the order for to-morrow, if the house met. mr. thatcher observed, that he had before said that he had seen nothing on the part of mr. lyon, in the affray of yesterday, which ought to subject him to expulsion; but the gentleman from virginia (mr. parker) said, that if he (mr. t.) had had his eyes about him, he might have seen something for which he ought to be expelled. if, indeed, he had _eyes behind_ he might have seen what he alluded to; but this not being the case, he did not see it. as far as the business respects mr. lyon, some inquiry might be necessary, as all he saw was, that mr. lyon suffered much, without any offence on his part. he thought, therefore, the business should be gone into, as on a former occasion, and that they ought to examine the subject with candor, and then they should doubtless decide upon it with propriety. mr. sitgreaves was against the postponement, in order that a different course might be taken. he knew nothing in this case which distinguished it from a late case, and therefore could not see why the same course ought not to be pursued as was then pursued. he should therefore vote against a postponement, in order that the resolution might be referred to the committee of privileges. mr. harper inquired whether such a motion would not supersede a motion for postponement. the speaker said, it would. mr. harper then made the motion. mr. gallatin asked whether he understood the speaker rightly, that a motion for a reference to a committee superseded a motion for postponement? the speaker said, it did. mr. nicholas asked whether it would not then be in order to postpone the consideration of the subject? the speaker answered, it would. mr. nicholas renewed the motion for a postponement till to-morrow. mr. harper, believing that it would be proper to refer this resolution to a committee, as before, especially as some of the facts did not pass within the view of the house, he should vote against the postponement--not because he wished to avoid a vote on the question; for, if it should be the opinion of the house that it ought not to go to a committee, he was perfectly ready to give a vote upon the question; but he thought it better that the business should have this course. with respect to any discussion being necessary upon this subject, he perhaps might think it necessary to make some observations upon it, when the question came before the house for decision; for, though some gentlemen might be endued with the happy faculty of doing every thing in an instant, he could not boast of possessing that faculty. but, even if he were not desirous of discussion for his own information, he wished it for the information of the public; and, notwithstanding all that the house had heard about a waste of public money and public time, he believed they should best serve the public by suffering the business to take the usual course. the motion for a postponement was put and negatived. mr. sitgreaves then moved that the resolution be referred to the committee of privileges. mr. harper moved that the committee have leave to sit during the session of the house. mr. thatcher thought, as it was probable a number of members might be wanted to give evidence, the house had better adjourn, as on a former occasion, as it would not be proper to go on with business when so many members were absent. mr. t. claiborne hoped leave would not be granted for the committee to sit immediately. he wished them coolly to deliberate upon the business, which they could scarcely be expected to do, when their passions were so strongly affected as they must be at present. the question for leave to sit during the session was put and carried-- to . mr. harper moved that the committee be instructed to report to the house the evidence in writing, upon which they shall found their report. mr. kittera thought the facts were so notorious that there was no necessity for this instruction. mr. harper said if his friend from pennsylvania could say that every body would be satisfied with the report of the committee without the evidence, he would not insist upon this motion. but if the evidence was not reported, how could he say that all the witnesses might not again be called before the house? it was his wish to prevent this. mr. j. williams said there was a considerable difference between this transaction and the one lately under consideration. he thought in this case it would probably save much trouble to report the evidence. mr. brooks said it must be recollected that the gentleman from virginia was not satisfied with the former report. he wished to hear the witnesses themselves; and if the evidence was to be reported, he did not suppose it would be satisfactory. mr. nicholas seconded the motion, because it would be likely to shorten the business; but if, when the testimony came to be reported, there was any obscurity in it, he should feel it necessary to ask the witnesses questions by way of elucidation, as every man who was called upon as a judge, should be in full possession of every fact relative to the subject. mr. brooks said the gentleman who had just sat down, would have no difficulty in pointing out some obscurity, in order to furnish an apology for rehearing of the witnesses. mr. kittera said if to report the evidence would prevent the necessity of hearing the witnesses in the house, he should not object to it; but he believed this would not be the case. mr. venable was before of opinion that it would have been best for witnesses to have delivered their evidence in writing. he hoped that course would now be taken, and then there would be no difficulty in reporting it to the house; and if it should be found necessary, in order to elucidate any part of it, to put any questions to the witnesses in the house, the business would be greatly facilitated and shortened by the evidence being reported. the question was put and carried. mr. otis believed that something further was necessary to be done in respect to the unfortunate business, which had already engaged the attention of the house. from what had happened in the view of the house, it appears that the parties are in the habit of conflicting with each other; and except they are restrained by some authority which shall be sufficiently imposing upon them, further violence may be expected. in order, therefore, to secure this house from future violations of its dignity and order, he proposed the following resolution for adoption: "_resolved_, that roger griswold and matthew lyon, members of this house, be respectively required by the speaker to pledge their words to this house, that they will not commit any act of violence upon each other during this session; and that if either refuse to make such engagements, the party refusing shall be committed to the custody of the sergeant-at-arms, until he shall comply with this obligation." mr. sewall understood a motion had been agreed to in relation to the affair of yesterday, which might produce an expulsion of the members in question. he thought it would be better, therefore, to alter the wording of the resolution, and instead of "during this session," say "during the continuance of the examination of the business before the house." mr. sitgreaves did not think any alterations were necessary. an expulsion of the members was a possible, but not a necessary result. if an expulsion does not take place, the resolution will remain in operation for the remainder of the session, which would be proper; and, if an expulsion took place, its operation would fall of course. mr. j. williams thought it best to pass the resolution as it stood. if a similar resolution had been entered into on a former occasion, it would probably have prevented what had now taken place. mr. r. williams called for the reading of the resolution which was passed on a former occasion. [it was read. it stated "that any personal contest between the members, before the house had come to a decision upon the business, would be considered as a high breach of privileges."] mr. w. thought this resolution went as far as the house had a right to go. the resolution proposed by the gentleman from massachusetts, went farther, he thought, than they had power to go. it went to imprison one or both of the parties, if he or they refused to comply with the request of the house. he had his doubts whether that house had the constitutional power to imprison a man for a crime, as the law only would do this. he thought a resolution, similar to that adopted on a former occasion, would be sufficient at present; and if the mover did not think proper so to alter it, he would himself move an amendment for this purpose. mr. otis flattered himself that his object would have met with the concurrence of all sides of the house, believing that all wished to prevent future violations of order and peace. with respect to the doubts of the gentleman from north carolina, his politics seemed to be altogether a system of _doubts_. if this system was common, it would be extremely difficult to progress with business at all. he believed, on the present occasion, these doubts were groundless. when an act of violence was done in the view of the members of the house, they had certainly the power to obtain some security against a repetition of such violence. if this was not done, the presumption was, the business of the session might be continually interrupted; and had they not the right of securing the peaceful exercise of their legislative functions for the remainder of the session? he thought this could not be seriously doubted. with respect to the former resolution, if he had been in his place, he should have suggested its impropriety; for, by it, it seemed to be implied that, after the question was decided, though they could not do it before, the members in question would be at liberty to commit any act of violence they pleased upon each other. they had seen the consequence. he hoped, therefore, the house would restrain these gentlemen in such a manner as that it may not be in their power again to interrupt their proceedings. the question was then taken on the resolution, and carried by a large majority, there being votes in favor of it. the speaker asked, whether it was the pleasure of the house that the sergeant-at-arms should be sent for mr. lyon? mr. sitgreaves said it might not be convenient for mr. lyon to attend the house; he asked whether the resolution might not be sent to him, and his answer be received in writing? mr. nicholas supposed, that if both gentlemen prepared a declaration in writing, and presented it to-morrow, it would answer the purpose. mr. harper replied, the mischief intended to be guarded against might in the mean time be done. mr. gallatin said, he had just been called out by a member of the house, who had asked him whether he thought it would be proper for mr. lyon to attend the house. he supposed, therefore, if the sergeant-at-arms was sent for him, he would immediately attend. mr. harper hoped the sergeant-at-arms would be sent. the speaker said, as soon as the clerk had made a copy of the resolution, the sergeant-at-arms would wait upon mr. lyon with it. mr. lyon having entered, the speaker said, the members from vermont and connecticut being now in their places, he should proceed to read the resolution which had been entered into by the house. [he then read the resolution.] as soon as it was finished reading, mr. griswold rose and said, he should not hesitate to enter into the proposed engagement. mr. lyon also rose and said, he was ready, as it was the wish of the house, to agree to the proposition. the speaker said, then you do accordingly agree to this proposition? both answered, "i do agree." monday, february . _amy dardin._ upon motion of mr. t. claiborne, the following resolution was agreed to-- to : "_resolved_, that a committee be appointed to bring in a bill for the relief of amy dardin." [this claim has been long before congress, and been several times the subject of discussion. it is for the value of the famous horse romulus, the property of the husband of the petitioner, pressed into the service of the united states during the war. the case of the widow is evidently a hard one, and this is the second time a vote has been obtained in her favor, which has afterwards been reversed.] the committee rose, reported their agreement to the three resolutions, and had leave to sit again. the house took up the two first, agreed to them, and directed the committee of claims to bring in a bill or bills accordingly. when the third resolution came to be considered, the yeas and nays were called for, and its adoption was strongly opposed by messrs. harper, nicholas, and bayard, on the ground of its throwing open a door to every claim which had heretofore been determined as barred, as cutting up by the root all the acts of limitation; that it was also setting aside these laws in the most objectionable way, by inviting every person, who had an unsatisfied claim, to petition congress for relief, which would of course engage much of their time. if the acts were to be set aside, it would be much better and less expensive therefore to authorize the proper department to settle these claims, than that the time of the house should be engaged in investigating and settling them. on the other hand, its adoption was advocated by messrs. gallatin and t. claiborne. this was stated as a hard case; that this determination would not open the acts of limitation to any but such as congress might deem extremely hard cases; that it would give the treasury no power whatever to settle any claim: the power, therefore, could not be abused, except they themselves abused it; that whatever policy there might be in acts of limitation, they were certainly liable to strong objections; they knew they were honorably indebted a sum of money, but they determine not to pay it, merely because the paying it might render the accounts at the treasury less simple, or because they would be liable to pay more than is convenient. this policy might be justifiable, but it bore very hard upon individual sufferers. it was argued, therefore, that without opening the acts generally, when a strong, unequivocal claim was presented, which was in the hands of the original holder, and where, of course, there could be no possibility of fraud, relief might and ought to be granted. mr. j. williams was an enemy to acts of limitation, as he thought a debt once due must always be due until paid; but he would either have them opened generally, or not at all. the yeas and nays upon agreeing to this proposition for setting aside the act of limitation in this case were taken, and decided, yeas , nays , as follows: yeas.--david bard, lemuel benton, samuel j. cabell, thomas claiborne, william charles cole claiborne, matthew clay, john clopton, thomas t. davis, john dawson, george dent, lucas elmendorph, john fowler, albert gallatin, james gillespie, william barry grove, carter b. harrison, david holmes, walter jones, edward livingston, matthew locke, matthew lyon, james machir, blair mcclenachan, joseph mcdowell, john milledge, anthony new, john rutledge, jr., william smith, richard sprigg, jr., thomas sumter, abraham trigg, john trigg, joseph b. varnum, abraham venable, and robert williams. nays.--john allen, george baer, jr., bailey bartlett, james a. bayard, thomas blount, david brooks, nathan bryan, stephen bullock, dempsey burges, christopher g. champlin, john chapman, james cochran, joshua coit, william craik, samuel w. dana, thomas evans, william findlay, abiel foster, dwight foster, henry glenn, chauncey goodrich, william gordon, andrew gregg, roger griswold, john a. hanna, robert goodloe harper, thomas hartley, jonathan n. havens, wm. hindman, hezekiah l. hosmer, james h. imlay, john wilkes kittera, samuel lyman, nathaniel macon, wm. matthews, daniel morgan, lewis r. morris, john nicholas, harrison g. otis, isaac parker, john read, james schureman, samuel sewall, william shepard, samuel sitgreaves, nathaniel smith, samuel smith, peleg sprague, richard stanford, george thatcher, mark thompson, thomas tillinghast, john e. van allen, peleg wadsworth, and john williams. mr. harper then proposed the following resolution, which was agreed to: _resolved_, that the prayer of the petition of amy dardin ought not to be granted. tuesday, february . _case of griswold and lyon._ mr. venable, from the committee of privileges, laid the following report upon the table, together with the evidence relative thereto: the committee of privileges, to whom was referred a resolution in the following words: "_resolved_, that roger griswold and matthew lyon, members of this house, for violent and disorderly behavior committed in the house, be expelled therefrom," with instructions to report the evidence in writing, have, according to the orders of the house, proceeded to take the evidence, which they herewith report; and they report further, that it is their opinion that the said resolution ought to be disagreed to. thursday, february . the usual time of calling the house to order being arrived, the clerk desired members to take their seats; which being done, mr. kittera said, the speaker had desired him to inform the house that he was so much indisposed as to be unable to attend the house to-day. mr. k. suggested the propriety, therefore, of adjourning the orders of to-day till to-morrow. mr. j. williams did not see a necessity for this. he thought the house might informally go into a committee of the whole on the report of the committee of privileges. he had seen this course taken in other legislative bodies, and as it would be the means of saving a day, he hoped this mode would now be adopted. mr. thatcher hoped gentlemen would not consent to go on with business in an informal manner, since it was evident they were sufficiently informal with all their forms. mr. harrison inquired if there was any probability that the speaker would be able to attend the house to-morrow. if not, he should be for choosing a temporary speaker. mr. kittera said, the indisposition of the speaker was occasioned by a severe headache, to which he was subject; that it generally continued for six or eight hours, and afterwards he was perfectly well. the question for postponement of the orders of the day till to-morrow was then put by the clerk, and carried; and then the house adjourned till to-morrow. friday, february . the bill providing for the widows and orphans of certain deceased officers, was read the third time, and passed. _revenue statements._ a communication was laid before the house by the speaker, from the secretary of the treasury, enclosing sundry documents prepared by the late commissioner of the revenue, in consequence of a resolution of the house of the th of january, , requiring to be laid before the house every session, within ten days after its meeting, a statement of the net produce of the internal revenues, the salaries of the collectors, &c., for the year preceding. the secretary apologizes for not having made the communication sooner. it was ordered to be printed. _case of griswold and lyon._ the house proceeded to consider the report of the committee of privileges, of the twentieth instant; and the same being again read in the words following, to wit: the committee of privileges, to whom was referred a resolution in the following words, to wit: "_resolved_, that roger griswold and matthew lyon, members of this house, for riotous and disorderly behavior, committed in the house, be expelled therefrom," with instructions to report the evidence in writing, have, according to the order of the house, proceeded to take the evidence, which they herewith report; and they report further, that it is their opinion that the said resolution be disagreed to. mr. davis said he hoped the house would disagree to the report of their committee of privileges; after this was done, the resolution could be altered in such a manner as gentlemen might think proper. mr. dent called for the yeas and nays. agreed to be taken. mr. sitgreaves said there were many considerations which should incline the house to come to a decision upon the present business without entering into any unnecessary discussion; and there were others which should lead them to avoid coming to an immediate decision. he should, therefore, move that the further consideration of this subject be postponed until the th of march, . mr. nicholas called for the yeas and nays upon this question; which being agreed to, were taken, and stood--yeas , nays . the motion for postponement being lost, the question on agreeing to the report of the committee recurred. mr. bayard believed it would not be in order to call for a division of the question. the resolution implicated two persons, which he thought improper. if the report of the committee was, however, disagreed to, he supposed it would then be in order to move for a division of the question. he should, therefore, vote against the report, as he wished the cases to be separately considered, as they stood on distinct ground, and were not attended with the same circumstances; and, reasoning from analogy, he knew of no instance in a court of justice, where two persons had ever been included in the same charge when their crimes were different. if the situation of both these gentlemen had been the same, there might have been propriety in coupling them together; but as this was not the case, he was opposed to taking an opinion upon both together. mr. mcdowell thought it would be proper to take the same course in this business as was taken in a former case. he moved, therefore, that the report be read a second time, for the purpose of committing it to a committee of the whole house. mr. gordon was opposed to this mode of proceeding. every one knew the question, and were as well prepared to decide upon it now, as they would be after going into a committee upon it. mr. giles thought it would comport more with the dignity of the house to decide this business without going into a committee of the whole, as he believed every one had made up his mind upon it. if gentlemen intended by the course heretofore taken to raise the dignity of the house, he thought they had deceived themselves; for he believed the house was never in a less dignified attitude than during that discussion. mr. mcdowell thought the mode he had pointed out necessary, for the sake of uniformity; but, as other gentlemen seemed to think it unnecessary, he would withdraw his motion. mr. r. williams wished to know whether it would be in order to amend the report of the committee of privileges, or to suggest the propriety of disagreeing to it, for the purpose of substituting a different punishment from that proposed, viz: that the offending members should be reprimanded by the speaker in the presence of the house? he believed that a punishment of this kind would satisfy many gentlemen who did not wish to expel the members, but who, at the same time, did not wish they should go unpunished. the speaker said that motion would be in order after the report of the committee was decided upon. mr. gallatin remarked, that if the report was agreed to, the resolution for an expulsion would of course be negatived, and then any other proposition would be in order; and, on the other hand, if the report was disagreed to, the resolution would be before them, and open to amendment. mr. g. said he rose to make an observation upon what fell from the gentleman from delaware (mr. bayard.) that gentleman had said he would vote against the report, because he wished to distinguish between the two members. the reason which he gave, though he might have good reasons for his vote, did not appear to him to be correct. that gentleman seemed to suppose that the facts for which the two members were to be expelled, were facts committed at different times, and of a different nature; whereas the facts for which both were proposed to be expelled, were offences of the same nature, and committed on the same day. what related to the previous conduct of the member from vermont, was not now under consideration. in order to have that conduct before them, it would be necessary that a reconsideration of it should be moved by a member who voted against that member's expulsion, and seconded by another member who voted on the same side of the question. the argument of the gentleman from delaware, therefore, did not apply. he said he should himself vote in favor of the report of the committee of privileges. he was against expelling either of the gentlemen. mr. dana agreed with the gentleman last up, in his conclusions; but he did not seem rightly to have understood the argument of the gentleman from delaware. if the gentleman from pennsylvania was acquainted with legal principles, with established principles relative to punishment, he must know that no persons can be charged jointly with an offence, except jointly guilty, and except they had mutually agreed to commit the offence. the resolution, in its present form, therefore, offended against established maxims of propriety. mr. bayard said, the statement of the gentleman from pennsylvania was not correct. he had stated that the offences of the two members were the same in circumstances, and committed at the same time. he apprehended the two cases were very distinct; as, by the depositions before the house, it appeared that the offence of the member from connecticut was committed _before_ the house was called to order, and that the offence of the member from vermont was committed _after_ the house was called to order. the argument most depended upon in a former case, against the expulsion of the member from vermont, was that which insisted that the act of violence complained of being committed when the house was not in session, was not a cause of expulsion. if this argument had weight at that time, it ought also to have weight in the present case. it would, therefore, be the height of injustice to blend the two cases together; since there might be cause for expelling one member and not the other. the speaker observed that every thing which had been said with respect to a division of the question was out of order, as it could not be divided. he would also remark, in order to shorten the debate, that the house was not called to order when the stroke was made by the member from vermont upon the member from connecticut without the bar of the house. mr. harper asked, if the report of the committee should not be agreed to, whether the resolution might not then be agreed to? the speaker replied, it could not be divided; but a separate resolution might be brought forward. the question on agreeing to the report of the committee, which recommended a disagreement to the resolution for an expulsion of the two members was then taken, and stood--yeas , nays . the resolution for an expulsion having been disagreed to, mr. r. williams proposed a resolution in the following words: "_resolved_, that roger griswold and matthew lyon, for riotous and disorderly behavior in this house, are highly censurable, and that they be reprimanded by the speaker in the presence of this house." mr. harper moved the previous question upon this resolution. he did it, he said, upon this ground. the house had just decided, and they had lately decided in another instance, that disorderly conduct shall not be punished by expulsion; and it was his opinion that no less punishment than expulsion ought to be inflicted, as he was unwilling to diminish the reprehensive power of the house, by inflicting what he thought inadequate punishment for offences of this nature. if there were any gentlemen who thought this conduct excusable, and that it ought not to be punished, they would, of course, vote in favor of the previous question; and those who thought with him, that both ought to be expelled, would also vote in favor of it. mr. nicholas called for the yeas and nays upon this question. agreed to be taken. mr. gallatin said, by the gentleman from south carolina having moved the previous question, he had excluded any discussion upon the merits of the main question. mr. g. wished some reasons might be given why the main question ought not to be put. those given by the gentleman from south carolina were applicable to the resolution itself: they were reasons why he should vote against the resolution, but they did not strike him as reasons why the question should not at all be taken. the previous question was then put in this form: "shall the main question (viz: the resolution for reprimanding the offending members) now be put?" and the yeas and nays were taken, and stood--yeas , nays , as follows: yeas.--abraham baldwin, david bard, lemuel benton, thomas blount, richard brent, nathan bryan, dempsey burges, samuel j. cabell, thomas claiborne, william charles cole claiborne, matthew clay, john clopton, thomas t. davis, john dawson, lucas elmendorph, william findlay, john fowler, nathaniel freeman, jun., albert gallatin, william b. giles, james gillespie, andrew gregg, john a. hanna, carter b. harrison, jonathan n. havens, joseph heister, david holmes, walter jones, edward livingston, matthew locke, nathaniel macon, blair mcclenachan, joseph mcdowell, john milledge, anthony new, john nicholas, thompson j. skinner, samuel smith, william smith, richard sprigg, richard stanford, thomas sumter, abram trigg, john trigg, joseph b. varnum, abraham venable, and robert williams. nays.--john allen, george baer, jun., bailey bartlett, james a. bayard, david brooks, stephen bullock, christopher g. champlin, john chapman, james cochran, joshua coit, william craik, samuel w. dana, george dent, thos. evans, abiel foster, dwight foster, jonathan freeman, henry glenn, chauncey goodrich, william gordon, william barry grove, robert goodloe harper, thomas hartley, william hindman, hezekiah l. hosmer, james h. imlay, john wilkes kittera, samuel lyman, james machir, william matthews, lewis r. morris, harrison g. otis, isaac parker, john read, john rutledge, jun., samuel sewall, william shepard, thomas sinnickson, samuel sitgreaves, nathaniel smith, peleg sprague, george thatcher, richard thomas, mark thomson, thomas tillinghast, john e. van allen, peleg wadsworth, and john williams. monday, march . _diplomatic intercourse._ [after a protracted discussion the question was taken on mr. nicholson's amendment, to wit, to limit the ministers of the highest grade to the two courts of london and paris, and it was negatived-- to .] a motion was then made for the committee to rise and ask leave to sit again, which was negatived. the bill was proceeded with. mr. s. smith moved, to strike out certain words, and to insert others to this effect: "that the president of the united states shall not allow to any minister plenipotentiary to france, great britain, or spain, more than $ , per annum, nor to any other minister plenipotentiary more than $ , ." this amendment was negatived, there being only votes in its favor. the blanks in the bill were next to be filled; the first, which was the permanent allowance, was filled with $ , ; the next, which was an extraordinary appropriation for this year, with $ , . before the latter sum was agreed upon, mr. livingston inquired whether the sum of between two and three thousand dollars, which he thought had been lavished away, said to be expended on persons taking leave from this country, was included in the incidental expenses which were contained under this head? he thought such an expenditure of money forbidden by the constitution. mr. harper believed the incidental expenses mentioned in the estimate were expenses of our ministers abroad. mr. nicholas understood that three secretaries were allowed the mission at present in france. he thought this was as novel as it was unnecessary; as he believed one secretary was sufficient for the whole. the united states had employed a number of missions at different times, but never allowed more than one secretary to each. he had thought the law would not have warranted the practice; but on examining it, he supposed it did. mr. harper said every minister employed was entitled to a secretary; the president had accordingly appointed one to each, and he could not see upon what ground the house could object to appropriating for their salaries. mr. nicholas answered, that as the law admitted of it, he should not object to the appropriation but he should move an amendment to prevent more than one secretary to a mission in future. the committee then rose and reported the bill with the amendments; which being taken up in the house and agreed to, mr. nicholas renewed his amendment to limit the salaries of ministers plenipotentiary to london, paris, and madrid, to nine thousand dollars a year, and all others to four thousand five hundred dollars, and called the yeas and nays upon it, which were taken and resulted, yeas , nays . mr. s. smith then renewed his motion for limiting the salaries of ministers to london, paris, and madrid, to nine thousand dollars, and others to six thousand dollars, and called the yeas and nays upon it, which were taken, and were exactly the same as upon the former question. mr. nicholas then made his motion to confine future missions to one secretary, which was negatived-- to . the bill was then ordered to be engrossed for a third reading to-morrow. monday, march . _relations with france._ the following message was received from the president of the united states: _gentlemen of the senate_, _and gentlemen of the house of representatives_: the despatches from the envoys extraordinary of the united states to the french republic, which were mentioned in my message to both houses of congress, of the fifth instant, have been examined and maturely considered. while i feel a satisfaction in informing you that their exertions for the adjustment of the differences between the two nations have been sincere and unremitted, it is incumbent on me to declare that i perceive no ground of expectation that the objects of their mission can be accomplished on terms compatible with the safety, honor, or the essential interests of the nation. this result cannot, with justice, be attributed to any want of moderation on the part of this government, or to any indisposition to forego secondary interests for the preservation of peace. knowing it to be my duty, and believing it to be your wish, as well as that of the great body of the people, to avoid, by all reasonable concessions, any participation in the contentions of europe, the powers vested in our envoys were commensurate with a liberal and pacific policy, and that high confidence which might justly be reposed in the patriotism, abilities, and integrity, of the characters to whom the negotiation was committed. after a careful review of the whole subject, with the aid of all the information i have received, i can discern nothing which could have ensured or contributed to success that has been omitted on my part; and nothing further which can be attempted, consistently with maxims for which our country has contended, at every hazard, and which constitute the basis of our national sovereignty. under these circumstances, i cannot forbear to reiterate the recommendations which have been formerly made, and to exhort you to adopt with promptitude, decision, and unanimity, such measures as the ample resources of the country afford, for the protection of our commercial and seafaring citizens; for the defence of any exposed portions of our territory; for replenishing our arsenals, establishing foundries and military manufactures; and to provide such efficient revenue as will be necessary to defray extraordinary expenses, and supply the deficiencies which may be occasioned by depredations on our commerce. the present state of things is so essentially different from that in which instructions were given to collectors to restrain vessels of the united states from sailing in an armed condition, that the principle on which those orders were issued has ceased to exist. i therefore deem it proper to inform congress that i no longer conceive myself justifiable in continuing them, unless in particular cases, where there may be reasonable ground of suspicion that such vessels are intended to be employed contrary to law. in all your proceedings it will be important to manifest a zeal, vigor, and concert, in defence of the national rights, proportioned to the danger with which they are threatened. john adams. united states, _march , _. this message was referred to the committee of the whole on the state of the union. friday, march . _georgia limits._ mississippi territory--slavery. mr. j. williams called for the order of the day on the bill for organizing and disciplining the militia of the united states. mr. gallatin thought it better that the house should again go into a committee of the whole on the bill for an amicable settlement of limits with georgia, and for the erection of a government in the mississippi territory, as that subject had already undergone some discussion, and the bill had been reported with the information to obtain which it had been committed. the latter business was preferred, and the house accordingly went into a committee of the whole on the subject; when mr. milledge's amendment being under consideration, for adding to the section for appointing a provisional government in the natchez country, "after the consent of the legislature of georgia shall have been obtained," mr. milledge observed, that the select committee had now reported all the documents on which the united states claimed a right to this territory. as to the title of georgia, he should not enter into an inquiry as to that. he would only remark, that the state of georgia was as tenacious of her rights as any state in the union. but he thought it would not be improper to examine the pretended claim of the united states to this country. looking into the journals of the senate, he found that on the d of march, , a resolution was passed directing the attorney general to inquire into and make a report on the subject of the title of the united states to land in georgia. no doubt the attorney general not only examined the records of the state of georgia, but those of the united states, and obtained all the information which he was able to do in the united states; but not finding sufficient ground upon which to found a title, he applied to mr. bayard, our commissioner in london, who obtained a certificate on the subject from a mr. chalmers, secretary to the board of trade and plantations. twelve months after he was directed to do so, the attorney general made a report on the subject; but none of the documents which he reported went to establish the claim of the united states; nor any thing which tends to show that a cession of west florida was ever made. but he now found among the papers got from the senate, a letter addressed to mr. read of the senate, from mr. livingston of new york, informing him that he encloses an extract from the instructions given by the king of great britain to governor chester. but mr. livingston was not known as an official character; and this document was neither official nor certified. yet this is the ground upon which the united states claim this tract of country. before the general government proceeded to erect a temporary government, it ought to have better information with respect to the nature of its claim; for, to attempt to establish a government without the consent of georgia, he thought would be stepping beyond the constitution, two clauses of which he quoted. he hoped the general powers placed in congress for the defence of the country would not be resorted to in order to sanction the proceeding. it was said that the inhabitants of the district of country alluded to were in a situation which called for immediate attention. he allowed that it would be proper to pay early attention to them; but he thought, inconvenient as it might be, the erecting of a government might be deferred until the consent of the legislature of georgia could be obtained. it ought to be remembered that the state of georgia is a member of the union, and that it is her interest to make the cession, and he had no doubt she would do so. the convention of that state meet in may, and if application was made to them, he had no doubt the legislature would be called together, and consent might be obtained by the month of july. he was confident the state of georgia is desirous of promoting the interests of the united states, and that she is firmly attached to the government; all its regulations had been constantly carried into effect there; and her consent to the establishment of a provisional government being obtained, every difficulty would be obviated. mr. harper did not feel any anxiety to question the desire of the state of georgia to promote the interests of the united states, and he was glad to be informed by her representative, that she was so well disposed to the general government, to which assertion he gave the fullest credit. he, therefore, should not oppose the motion of the gentleman on the ground that the state of georgia would be likely to throw any obstacles in the way of the proposed temporary government; and he should be far from supposing, that, by the erection of such a government, the united states would assume an extra-judicial right to the territory. he was of opinion that the united states possessed the right to it, and that the most undeniable evidence of the right existed; but that evidence was not now before the house, and if it were, they were not the proper body to decide the question. he believed the amendment ought to be rejected on the ground of policy. the bill went to provide a temporary government, but contained an express clause that the establishment of this government shall not affect the rights of georgia with respect to her right of the jurisdiction or soil of this territory--consequently, the fears of the gentleman are groundless in this respect. what, then, is the nature of the amendment? it is to prevent the erection of a temporary government in a district of country containing upwards of , souls, lying far beyond the ordinary jurisdiction of any state, with an immense wilderness intervening, in which are two nations of indians, and in the neighborhood of the territory of a foreign nation, with whom, though we are at present at peace, when we recollect the connection subsisting between that nation and another with whom we have differences of a serious nature, we cannot reckon upon as lasting. yet this remote and vulnerable corner of the union is to be left defenceless for an indefinite period of time, lest we should possibly give umbrage to the state of georgia, by providing a temporary government there before the dispute on the subject of limits is settled. and whatever may be the good disposition of georgia towards the united states, it would require considerable time to obtain the consent proposed. their legislature do not meet till next winter. it was true, as had been stated, that their convention met in may, and they might, if they thought proper, call an extraordinary meeting of the legislature; but this could not be relied upon. besides, he saw no necessity for so much punctilio in this case, for if any state were to suffer a part of its territory, within its ordinary jurisdiction, to lie in a defenceless state, the general government would be warranted in stepping in to defend it, and certainly they might do it in a case like the present, where no jurisdiction is exercised. and if this was not done, the petition of these people set forth, that however unwilling they should be to do so, they should be obliged to pass over to the spanish dominions. mr. h. said, he did not wish to have touched upon the question of right; but as the gentleman from georgia had said we had none, he felt himself obliged to say a few words upon that point. he allowed the committee had not before them evidence of the right which would be admissible in a court of law; but though it were not such as would be admitted in a court of law, had it therefore no weight? it was at least equal to what was every day received by the committees of the house. the question was, whether the papers before them afforded reason to believe that legal evidence of the title did exist? it was a copy of a commission and instructions given by the king of great britain to governor chester, of west florida, in the year , furnished by the gentleman who was secretary to the governor at that time, and whose duty it was to keep the records of that government. but the gentleman from georgia said, search had been made in the offices of the british government for the original, of which this paper was a copy, and it could not be found. but this was no proof it did not exist. if it does exist, legal evidence may be obtained from it, and this paper shows that the natchez country was included within the territory of west florida, and that it ceased in the year to be a part of georgia. he believed, however, this question ought not now to be acted upon; but that from necessity, and the exigencies of the case, a temporary government ought immediately to be provided for this district of country, and afterwards settle the point of right with georgia by negotiation; and if it was found in the end that the united states had no title to it, the government which had been established could be withdrawn. but it was stated that the legislature of georgia would readily consent that the united states should become possessed of this country. but what were the terms upon which they proposed to cede it? they required, as one of the conditions, a million and a half of dollars in six per cent. stock, and as another (which was infinitely harder, since it might not be in our power to comply with it, as it depended upon the will of the indians) that the united states will guarantee the relinquishment of the indian claim to the land on the east side of the chatahoochee, within a certain number of years. there is little hope, therefore, that the state of georgia will propose any terms to which the united states can agree, as it had been seen that the legislature of that state had rejected a bill by a great majority, which proposed the price to be one million of dollars with the other condition. of course it would be very imprudent to rest the establishment of a government in this quarter upon an agreement to terms like these. besides, the amendment would affect the right claimed by the united states. to wait for this consent would be tantamount to confessing we had no right, and arm georgia with a strong weapon against us in the final settlement. mr. h. contended that there was nothing in the constitution which could prevent the proposed measure, since it was absolutely necessary to preserve the people from falling into anarchy, and to prevent a foreign government from putting arms into their hands. it was also a quarter of the union which it was necessary to preserve, if we wished to secure the free navigation of the mississippi, which we had lately obtained by the spanish treaty; for if this country were invaded by the indians, or involved in civil war, we could not have the benefit of the navigation of that river. he hoped, therefore, when so many considerations were opposed to it, the amendment would be disagreed to. mr. nicholas understood from the gentleman from south carolina, that it was not intended to insist upon the title of the united states to the territory in question; and if they were not ripe to decide that the land is the property of the united states, he thought they ought not to establish a government there without paying some respect to the rights of georgia, by obtaining her consent, as it might prevent that amicable settlement of which we had at present the prospect. if that state set the value upon the land which had been mentioned, would it not excite the utmost jealousy in that country to take forcible possession of it? to do this would certainly be to establish an influence in favor of the united states, which would be fatal to the claim of georgia. no argument had been adduced to show the right of the united states to this territory, but merely to show the convenience of the measure. the gentleman from south carolina might as well say that a certain district in virginia is not so well governed as it might be, and, as the people would be happier under the government of the united states, propose to take possession of it. but it was said georgia had not begun to govern this territory. neither have the united states. she may, for aught we know, be preparing to do it now. he thought there was not a shadow of pretence for taking the course proposed, without first consulting the legislature of georgia. he hoped the amendment would be agreed to. mr. j. williams said it appeared to him, that if this amendment were to prevail, the bill might as well be voted out altogether. the bill had two objects, viz: a settlement of limits, and the fixing of a temporary government. it was clear to him, from the papers before the committee, that the united states had a clear title to the country in question, and, if this was not the case, there was a saving clause in favor of the georgia claim. he thought that state ought to be happy at the idea of the united states fixing a government there, as it would assist them in their defence against the indians. if gentlemen turned to the acts of congress, it would be found what a vast expense the united states had heretofore been put to in defending the frontier of that country. he thought that state had been dealt with in a very favorable manner. it was not long since $ , were paid to their militia for defending their frontier. he complimented the gentleman from georgia for having advocated so ably the cause of his state. but he thought that state ought to come forward and show what title she had to the country. it had been ceded to the united states by the spanish treaty, and the inhabitants there had a claim upon the general government for protection, and surely if the state of georgia for ever refused to give its consent to a government being established there, they were not for ever to be without government. the people there had petitioned congress for a government, of which doubtless the state of georgia was acquainted; and they ought to come forward in the business. their silence proved to him that they had no title to that country. mr. w. referred to the manner in which other cessions had been made to the union, and said he thought georgia ought to rejoice at the proposed establishment, as it would not only be benefiting that state, but the union at large. mr. macon said if the bill was intended to be conformable to the title, the amendment ought certainly to be agreed to; as, if the united states undertook to establish a government at the natchez, without the consent of georgia, it could not be said to be amicably done. this, he said, was neither the proper time nor place of deciding to whom this territory belongs. the great object ought to be to get a government there, and not to talk about what had been done for georgia. and if the consent of georgia could be obtained previous to the establishment of this government, it was certainly desirable that it should be obtained. this would not injure the claim of either. when this was done, some mode might be agreed upon by which the dispute at present subsisting, might be settled. this course would prevent any difficulties, and the consent might be obtained by the time the government could take effect. mr. otis said if the object of the present bill, could be obtained in a mode which would preserve the rights of all parties as they at present stand, such a course would be preferable to that which should appear to relinquish the right of one of the parties. it struck him that this might be effected by the bill as it now stands. the united states assumed their right to the land, yet they do not say they mean to turn a deaf ear to the claim of georgia. but, if the amendment were adopted, it would go to relinquish the title of the united states, and this, he thought, would be an excess of complaisance to the state of georgia. the only plausible reason given in favor of the amendment was, that if the bill passed without it, it would give offence to, and excite jealousy in, the state of georgia. but how? because congress passes an act to settle the interfering claims, and directs the appointment of commissioners to give them a compensation for what we might take without it? or, because we say we will enter upon the territory, to which we always laid claims, in order to preserve peace and order among the inhabitants, and to secure it against the attack of the indians or of a foreign power? gentlemen seem to take it for granted that georgia has possession of this territory; whereas those who oppose the amendment, contend it is a vacant possession, and that we have a right to take possession of it, to hold it, not until an army is raised to take it from us, but until the legal question of right shall be decided. and it could not be said that there was any thing offensive in this. if a man, for instance, were to enter upon a piece of land, and say he would never give it up until he was driven from it, it would certainly be an act of violence; but if he enter upon it only to take care of it, until a legal decision can be had as to his right, such an act was perfectly justifiable; and this was intended in the present case. mr. kittera hoped, if the bill passed at all, it would be without the amendment. this territory was never yet governed either by the united states or georgia, but had been ceded to the united states by spain, in our late treaty with that power, and we ought to retain possession of it until the title to it was clear. in this view of the subject, he could not see how the state of georgia could take offence at our holding the territory until the existing dispute was settled. mr. baldwin said it was to be regretted, as this was the last instance in which this question of cession could be presented to congress, that the situation of the persons settled upon this territory was such as should seem to constrain gentlemen to depart from the course of their former proceedings on this subject. he was fully impressed with the situation of that people; but he thought little delay would be occasioned by the proposed application to the state of georgia; nor would that consent weaken, as had been suggested, the title of the united states. or, if there was any force in the objection, it might be guarded against by adding a few words in the section which speaks of preserving the claim of georgia as it now stands. mr. b. said, gentlemen who had turned their attention to the map, would find that the territory in question is situate at the south-west corner of the united states; the southern boundary is latitude , and the western boundary the mississippi, which is also the boundary of the united states. its extent is about miles north and south, and coming this way, about miles. that part upon which this bill is bottomed, is little more than one-third part of the whole of that territory. the united states now reckon latitude - / as the boundary of georgia; but in the treaty, and till very lately, it was always reckoned to be , which is also the boundary of the united states. this was, at any rate, a new discovery--the official documents in support of which he had not seen. it was now supposed that west florida extends to latitude - / , and not to , which is one degree and a half more than formerly supposed. if this were so, he wondered it had never before been discovered by england or spain. why was the boundary of the united states always fixed at ? he feared, that since it became our interest to extend the boundary, we had suffered that interest to color our judgment. the instructions drawn out for our minister by a former secretary of state were, "you are to contend for latitude ." the ground upon which he had stated this, mr. b. thought irresistible, and it was thought we might risk a war upon it. besides, this bill would not cure the evil for which it was intended. there might be inhabitants still further north; this bill provides only for such as are settled within what had been called the province of west florida. mr. b. said, he had never seen the documents which authorized this extension. he had, indeed, seen the remarks of mr. chalmers, who, he believed, was secretary to the board of trade and plantations in london; but he believed he had drawn what he had said from the same document which was now reported, viz: the extract from the copy of the instructions said to have been given to governor chester; but the order of king and council for extending it, the attorney general says, in page th of his report, is not to be found. gentlemen had said, why does not the state of georgia manifest a disposition to make some arrangements respecting the territory in question. they had done so. after the revolutionary war in or , when there was an expectation that the forts would have been evacuated, they laid out a county there, and all the titles were declared good, and where there was no other title occupancy was declared to be sufficient, and warrants were to be issued accordingly. when he first came to attend his duty in congress, the minister from spain arrived about the same time, when he put in the claim of spain to this territory, which prevented any thing further from being done; and as soon as it was found that the arrangements made by georgia gave umbrage to the spanish government, they were given up. in the year , the state of georgia passed an act for making the cession of this territory to the united states. this act congress referred to a committee, which reported that government ought not to accept of the cession on the terms proposed. he believed the same disposition to make the cession which always had existed, now existed. he believed the disposition of the government of georgia was as favorable to the interests of the united states as that of any other state. he did not rise to speak their praises; but he could not sit to hear them blamed without notice. if the proposed government was proceeded with without the consent of georgia, it would be a dereliction of principle. he thought some sort of regulation might be made among the people for their own government, until georgia was applied to. this was not a new case. there had been great settlements in several parts of the country long before any government was provided for them. mr. b. said, he did not mean to undervalue the claim of the united states; they had always a claim in every case of cession, but he hoped, except there was an absolute necessity for it, the usual course of proceeding would not be departed from. mr. gordon said, the gentleman from georgia complained that a different course was proposed now to be taken than had been adopted heretofore. in answer to this, it was sufficient to say, that where the circumstances of cases differed, different courses were necessary. with respect to the merits of the bill, he thought it stood right at present. the situation of the people in the district alluded to, was such as required immediate attention. if gentlemen were not convinced of this, he saw no necessity for going into the business before the subsisting dispute between georgia and the united states was settled. he believed, however, there was no doubt of the fact; and surely the gentleman from georgia would not wish that these people should live under a military government for any length of time. being satisfied of this point, he wished the bill to pass without the amendment, as that might defeat altogether the purpose of the bill. the claim of georgia he looked upon at least as doubtful; and as he considered the united states as bound to protect all its citizens, he thought they would not be justified in returning these people for answer, "we cannot attend to your wants until we have settled our dispute with georgia." georgia might refuse to negotiate the subject, and by that means protract the business in a manner which would be very inconvenient, and perhaps drive the people under another government. besides, if georgia should refuse its consent to the establishment of a government in that quarter, it would, nevertheless, be proper to establish one. the united states, mr. g. said, came into possession of this territory by treaty. but suppose it was now in possession of a foreign power, would georgia attempt to drive them from it? certainly not. it would amount to the making of war on a foreign power. suppose georgia had a title to this territory, had not the united states the power of depriving georgia of it? suppose, in their treaty with spain, the united states had surrendered to spain one-half of this land, or the whole of it, georgia would have been bound by such an act; and having got this territory by treaty, they had certainly a right to establish a provisional government over it, until the dispute, as to the title, was settled. the question of this amendment was put and negatived by to . mr. thatcher rose and said, he should make a motion, touching the rights of man, by moving to strike out the excepting clause in the d section of the bill. [it appears that in the ordinance establishing a government in the north-western territory, slavery is expressly forbidden, and this section of the bill directs that a government similar in all respects to that established in the north-western territory shall be established in the mississippi territory, except that slavery shall not be forbidden.] mr. harper did not believe his friend's motion would be a proper mode of supporting the rights of man. in the north-western territory the regulation forbidding slavery was a very proper one, as the people inhabiting that part of the country were from parts where slavery did not prevail, and they had of course no slaves amongst them; but in the mississippi territory it would be very improper to make such a regulation, as that species of property already exists, and persons emigrating there from the southern states would carry with them property of this kind. to agree to such a proposition would, therefore, be a decree of banishment to all the persons settled there, and of exclusion to all those intending to go there. he believed it could not, therefore, be carried into effect, as it struck at the habits and customs of the people. mr. varnum did not know that the gentleman from south carolina wished to promote the rights of man. his observations showed, at least, that he did not wish to support the rights of all men; for where there was a disposition to retain a part of our species in slavery, there could not be a proper respect for the rights of mankind. it was true that this kind of property is held in the southern states, because they cannot, consistent with the safety of the people of those states, liberate them on account of their very great numbers. but they considered it as a great burden to be obliged to hold them. he hoped, therefore, congress would have so much respect for the rights of humanity as not to legalize the existence of slavery any farther than it at present exists. he believed the gentleman from south carolina was mistaken in saying that such a regulation would oblige all the inhabitants settled in this territory to remove. the provision need only extend to the forbidding of slaves being taken there. what, said he, is the situation of the north-western territory at this time? land there is worth more than in some of the old settled states; and he believed this high price of land, and prosperous condition of the country, was entirely owing to the absence of slavery. and if the southern states could get clear of their slaves, the price of their land would immediately double. at any rate, he hoped the united states would prevent an increase of this calamity; for he looked upon the practice of holding blacks in slavery in this country to be equally criminal with that of the algerines carrying our citizens into slavery. mr. rutledge wished the gentleman from massachusetts would withdraw his motion, not from any apprehension he had that it would obtain; but he hoped that he would not indulge himself and others in uttering philippics against a practice with which his and their philosophy is at war. he submitted to the gentleman's candor whether it was proper, on every occasion, to do this--to bring forward the southern states in an odious light, or to give his neighbor and colleague an opportunity of bringing them forward, and comparing them with algerines! he thought propriety and decency towards other members required that such language should be checked. he believed, if his friend from massachusetts had recollected that the most angry debate which had taken place during this session was occasioned by a motion on this subject, he would not have brought forward the present question. one gentleman says, you call these men property; another, you hold these men in chains; a third, you violate the rights of man! and are not these men property? do not the people in this territory hold them as such? did they not hold them under the spanish government? and must we thus address these people: "we have made a treaty which puts you under the mild government of the united states, but we must take from you your property; or rather, we must set your blacks at liberty to cut your throats. the rights of man was the watch-word of the day, and congress have determined that you shall not possess this property. they cannot as yet do slavery away altogether--the day is not yet arrived; but they have determined it shall not exist in the mississippi territory." these, said mr. r., are not mere speculative opinions. they lead to more mischief than gentlemen are aware of; and he trusted if the gentleman from massachusetts could be convinced that the discussion of such questions as the present did much mischief in certain parts of the union, he would not bring them forward. he hoped he would withdraw the present motion. mr. gordon thought that when the gentleman from massachusetts recollected that, by the establishment of this government, the united states do not establish their exclusive right to this territory, he would consent to withdraw his amendment, as that went to say that we had the absolute right of jurisdiction, and were determined to exercise it; and in making a difference between the ground on which property was held there from that on which it was held in georgia, they would militate against the th section of the bill. mr. otis hoped his colleague would not withdraw his motion; and the reason why he wished this was, that an opportunity might be given to gentlemen who came from the same part of the union with him to manifest that it is not their disposition to interfere with the southern states as to the species of property in question. with respect to the existence of slavery, the house had often heard gentlemen, who are owners of slaves, declare that it is not their fortune, but their misfortune that they possess them, but who still keep them, and claim the right of managing them as they think proper. he thought it was not the business of those who had nothing to do with that kind of property to interfere with that right; and he really wished that the gentlemen who held slaves might not be deprived of the means of keeping them in order. if the amendment prevailed, it would declare that no slavery should exist in the natchez country. this would not only be a sentence of banishment, but of war. an immediate insurrection would probably take place, and the inhabitants would not be suffered to retire in peace, but be massacred on the spot. by permitting slavery in this district of country, the number of slaves would not be increased--as if emigrants from south carolina or georgia were to remove into this country they would take their slaves with them; and he could see nothing in this which could affect the philanthropy of his friend. the north-western territory is inhabited by a description of persons who have not been accustomed to hold slaves, and therefore the restriction is agreeable to them; but the territory in question will be settled by people from the southern states, who cannot cultivate the ground without slaves. he hoped, however, the motion would be persisted in, and negatived by a large majority. mr. d. foster hoped, if the motion was not withdrawn, that a long debate might not be had upon it. mr. thatcher said he should not withdraw his motion, and the more it was opposed, believing his cause to be good, the more obstinate he should be in its support. mr. giles wished to suggest a single idea. the present motion was brought forward from the avowed motive of furthering the rights of man. he did not know whether the tendency of it was calculated to ameliorate the condition of the class of men alluded to; he believed not. on the contrary, it was his opinion, that if the slaves of the southern states were permitted to go into this western country, by lessening the number in those states, and spreading them over a large surface of country, there would be a greater probability of ameliorating their condition, which could never be done whilst they were crowded together as they now are in the southern states. mr. hartley said, he had himself intended to have brought forward an amendment similar to the present, but, on inquiry, he found so many difficulties in the way, that he was obliged to abandon it. he found it would interfere with, and be a serious attack upon, the property of that country. he was sorry it was not in the power of congress to gratify the wishes of philanthropists in this respect, by doing away slavery altogether; but this could not be done at present, and as he believed the present amendment, if carried, would be attended with bad effects, he should vote against it. mr. gallatin said, if he saw any of the great inconveniences which were foretold as likely to arise from this amendment, he should certainly vote against it. he should be extremely averse to the adoption of any principle which should either directly or indirectly lead to the production of any commotion or insurgency in any state where there is a great number of slaves. he did not see how any such effect could be produced by the present motion; for, notwithstanding what had fallen from the gentleman from south carolina, it did not appear to him how a regulation with respect to another territory can affect the peace, tranquillity, or property of any other state. how the forbidding of slavery in the mississippi territory could produce a worse effect than the same regulation in the north-western territory, or in pennsylvania, or in several other states. the amendment, therefore, could not be opposed on that ground; it must be on some other. ought it to be rejected on the ground of jurisdiction? certainly not. the united states intend to exercise jurisdiction over that territory, and was there any more reason for excepting this jurisdiction than any other? if we establish this government we expect it to be permanent; and if we believe it is not conducive to the happiness of any people, but the contrary, to legalize slavery, when we are about to form a constitution for a territory, its establishment ought to be prevented. but, if this amendment is rejected, we establish slavery for the country, not only during its temporary government, but for all the time it is a state; for, by the constant admission of slaves, the number will increase to a certain degree, and when the territory shall become a state, the interest of the holders will be such as to procure a constitution which shall admit of slavery, and it will be thereby made permanent. having determined slavery was bad policy for the north-western territory, he saw no reason for a contrary determination with respect to this territory. there was, then, only one solitary objection to the amendment, and that might easily be obviated. it was with respect to the situation of the people already settled there who are possessed of slaves. it would be extremely impolitic and unjust to declare by ordinance that the people settled there, either under the british, spanish, or georgia governments, should be deprived of this kind of property; and if this was the effect of the amendment, he would vote against it. such a regulation would be attended with the worst of consequences; but other words may be easily introduced to guarantee the property of the persons already settled there. by the laws of the different states, mr. g. said, the importation of slaves is forbidden; but if this amendment does not obtain, he knew not how slaves could be prevented from being introduced by the way of new orleans, by persons who are not citizens of the united states. he hoped, therefore, the amendment would be agreed to. mr. nicholas believed it not only to be the interest of the southern states, but of the united states, that this motion should be rejected. they were to legislate for the whole of the union, and ought to consult the happiness of the whole. it was not for them to attempt to make a particular spot of country more happy than all the rest. if it was a misfortune to the southern states to be overwhelmed with this kind of property, he asked if it would not be doing service not only to them but to the whole union, to open this western country, and by that means spread the blacks over a large space, so that in time it might be safe to carry into effect the plan which certain philanthropists have so much at heart, and to which he had no objection, if it could be effected, viz: the emancipation of this class of men? and when this country shall have become sufficiently populous to become a state, and the legislature wishes to discountenance slavery, the increase of slaves may be prevented, and such means taken to get rid of slavery altogether, perhaps in conjunction with other parts of the united states, who by that time may be in such a situation as to admit of it, as shall appear prudent and proper. mr. thatcher was of an opinion directly opposite to the gentleman who had just sat down. indeed, they seldom did agree in sentiment; to-day they differed very widely. he believed the true interest and happiness of the united states would be promoted by agreeing to this amendment; because its tendency was to prevent the increase of an evil which was acknowledged by the very gentlemen themselves who are owners of slaves. indeed the gentleman from virginia (mr. nicholas) had frequently declared in that house, that slavery was an evil of great magnitude. in this respect they agreed in opinion; for he considered the existence of slavery in the united states as the greatest of evils, an evil in direct hostility to the principles of our government; and he believed the government had the right to take all due measures to diminish and destroy the evil, although in doing it they might injure the property of some individuals; for he never could be brought to believe that an individual can have a right in any thing which goes to the destruction of our government, viz: that he can have a right in a wrong. a property in slaves is founded in wrong, and never can be right. he believed government must of necessity put a stop to this evil, and the sooner they entered upon the business the better. mr. t. said, he honestly confessed he did not like to hear much said in that house about the rights of man; because of late there had been much quackery as to these rights. but, because these rights had been abused, it did not follow that man has no rights. where legislators are freely chosen by the people, and frequently renewed; where a law cannot be passed without affecting the interests of the persons who pass it, these rights cannot greatly be abused; but, when we take upon us to legislate for men against their will, it is proper enough to say something about the rights of man, and to remind others, who are frequently heard speaking of these rights, that by nature these enslaved men are entitled to rights; and on that account it was, when he made this motion, that he said he would make a motion touching the rights of man. the reasons offered against the amendment by the gentleman from virginia, were a little singular. he contended that certain states were overflowing with slaves, and if not colonized by opening this wide tract of country to them, they would not be able to keep or manage them. he always thought that colonizing these people tended to increase the race far beyond what it would be when penned closely together. mr. giles explained, by saying, that he had said nothing about decreasing the number of blacks, but of spreading them over a larger surface of country. mr. thatcher said, he understood the gentleman's argument perfectly; though he did not seem to understand it himself. the gentleman wished to take the blacks away from places where they are huddled up together, and spread them over this territory; they wished to get rid of them, and to plague others with them. but they had them, and if they determined to keep them, he wished only they should be plagued with them. we are, said mr. t. about to establish a government for a new country. ours originated from, and was founded on the rights of man, upon which ground we mean to protect it, and could there be any propriety in emanating a government from ours, in which slavery is not only tolerated, but sanctioned by law? certainly not. it was used as an argument against this amendment that this territory would be peopled by emigrants from the southern states, who cannot work for themselves; and on that account they must have slaves to work for them. if this be true, it makes the people of the southern states only fit to superintend slaves. the language of this is, that these people cannot subsist, except they have slaves to work for them. for the reason he had stated, he hoped the amendment would be agreed to; but if gentlemen thought those who at present hold slaves in the territory should be protected in them, he should not be opposed to their holding them for a limited period. the question was put and negatived, there being only votes in its favor. adjourned till monday.[ ] monday, march . _georgia limits._ mississippi territory--slavery. the house again resolved itself into a committee of the whole on the bill for an amicable settlement of limits with the state of georgia; when, after striking out the words "claiming under it," in the fifth section, and adding two new sections, the committee rose, the house concurred in the amendments, and the bill was ordered to be read a third time to-morrow. one of the sections was moved by mr. milledge, and was in the following words: "that, from and after the establishment of the said government, the people of the aforesaid territory shall be entitled to and enjoy all and singular the rights, privileges, and advantages, granted to the people of the territory of the united states north-west of the river ohio, in and by the aforesaid ordinance of the th day of july, in the year , in as full and ample manner as the same are possessed and enjoyed by the people of the said last-mentioned territory." the other, moved by mr. harper, was to the following effect: "that, from and after the establishment of the aforesaid government, it shall not be lawful for any person to import or bring into the said territory, from any part or place without the limits of the united states, any slave or slaves, on pain of forfeiting three hundred dollars for every slave so brought, one-half to the united states, and the other half to the person who shall sue for the same; and every person so imported shall be entitled to and receive his or her freedom." when this section was proposed, mr. thatcher moved to strike out the words "without the limits of the united states," so as to have made it unlawful to have brought any slave there; but the motion was not seconded. tuesday, march . the bill from the senate for an amicable settlement of limits with the state of georgia, was passed with amendments. _relations with france._ mr. baldwin hoped the house would now resolve itself into a committee of the whole on the state of the union. after a few observations from mr. sewall against, and from mr. nicholas in favor of going into the business of the union, the house resolved itself into a committee of the whole on that subject, mr. dent in the chair; when the president's message of the th instant having been read, mr. sprigg rose and observed, that every subject which came before the committee of the whole on the state of the union must necessarily be important; but he believed there never was any more so than that which was presented to them by the message of the president which had been read. separated as we are from europe by an immense ocean, it were to be wished that we were equally separated from its political concerns, and that we should have to do with them no farther than what relates to commerce. this, unhappily, had not been the case, and there now existed painful differences between this country and the french republic. the message which had just been read was an evidence of this. in this situation of things, it appeared necessary that the house should declare whether this country was to have peace or war. this was a subject in which the best interests of the union were deeply concerned, and he hoped the business would be met fully and fairly. the president had informed the house that the present state of things is changed from what it was when he prohibited the arming of merchant vessels, and that therefore he had withdrawn that prohibition. whether the order formerly issued by the president for this purpose was in conformity to the spirit or letter of the law, was not of importance now to inquire; the effect had been beneficial, and in the same proportion as the prohibition had been beneficial would be the evils of withdrawing it. in order to ascertain the sense of the committee upon what measures may be proper to be taken in the present crisis, he should offer the following resolutions to their consideration: _resolved_, that it is the opinion of this committee, that under existing circumstances, it is not expedient for the united states to resort to war against the french republic. _resolved_, _&c._, that provision ought to be made by law for restricting the arming of merchant vessels, except in cases in which the practice was heretofore permitted. _resolved_, _&c._, that adequate provision shall be made by law for the protection of our sea-coast, and for the internal defence of the country. the first resolution being taken up, mr. sitgreaves said that, for himself, he could not agree to the proposed resolution. he did not mean, by this disagreement, to express an opinion, that, at this moment, it was expedient to go to war with the french republic; but he thought the formal declaration of the contrary sentiment was highly improper. the present is a period of menace and of danger, of injury and outrage, and whatever might be the expediency of the actual crisis, yet he had no hesitation to avow his belief that the time is not far distant when war must be resorted to, or the national honor and interest be abandoned. the conduct of france was calculated to excite or justify no other expectation; and under such circumstances, with such prospects, he could by no means consent to a formal declaration of non-resistance. besides, it is contrary to the usual and ordinary course of legislative proceeding, to pass mere negative resolutions. the power of declaring war being vested in the congress, so long as the congress shall forbear to declare war, it is a sufficient expression of their sentiment that such a declaration would be inexpedient: it is the only proper expression of such a sentiment; and it can be no more right to resolve that we will not resort to war, than it would be to pass an act to declare it would be inexpedient to make a law for the regulation of bankruptcy or any other municipal concern. however desirable, therefore, he admitted unanimity to be, at a time like the present, he found it impossible to agree to the resolution. mr. baldwin did not agree with the gentleman last up; he thought the resolution proper and free from exception. we were, he said, twenty-three years ago, when we were about beginning the war with great britain, in a situation similar to the present; but we were then without many advantages which we now have. we were then without any common tie, except what arose from common interest. no means existed of holding conference together, but nature pointed out the course to be taken, and representatives from different parts of the country were travelling at the same moment to hold counsel together, and to speak their sentiments. the gentleman who has just taken his seat apprehends war must be the consequence of our present situation. mr. b. said this was the first time that the question of declaring war had ever presented itself, and upon which, he believed, there might be a difference of opinion as to the exercise of that power. he did not mean to say wantonly that our constitution is imperfect; but every society which has a written constitution must have recourse to it for direction. it would be improper therefore to inquire what agency the legislature ought to have in the declaring of war; whether it is not proper that all the circumstances relative to such a state should be before them. he did not believe it was intended that this house should merely be the instrument to give the sound of war; the subject seemed to be placed wholly in the hands of the legislature. this was the understanding of the country when there was no government in existence, and he believed this was the meaning of the constitution. the country is now every where agitating this question of peace or war, and he trusted they would not be left to grope their way in the dark on this important question. the president had informed the house that all hopes of a negotiation were at an end. he was willing to take the information as it was given, without going into the cabinet of the executive, and to take measures accordingly. but when some persons declare that the present state of things is already a state of war; that the country is going on in it; that the die is cast, and that we have nothing to do but to go on with it as well as we can, if the house does not believe this to be a true position, this resolution ought to be agreed to, which went to say that the house does not consider the present a state of war, but a state of peace. mr. otis said, if the gentleman who made the motion would consent to use the constitutional words on this occasion, he apprehended there would be no difference of opinion. he meant that instead of saying "to resort to war," to say "to declare war." mr. sprigg said, the resolution which he had proposed had not been the work of a moment, and he did not feel disposed to make the alterations proposed. mr. otis added, then he should propose to strike out the words "resort to," and insert "declare," as he was of opinion with the gentleman from pennsylvania, (mr. sitgreaves,) that the only subjects fit for discussion were active measures, and that it was not regular to declare when they would not do a thing. mr. pinckney was desirous of settling this motion by the previous question; but he was informed by the chair that such a motion would not be in order in a committee of the whole. mr. dayton (the speaker) said, that he hoped his friend from massachusetts would withdraw the motion he had just offered, in order to make room for one he had to offer, which would render the first resolution more general, more innocent, and yet equally or more efficacious, and would test the sincerity of the advocates of that resolution as to their professed anxiety for the maintenance of peace. upon mr. otis withdrawing his motion, mr. d. moved to strike out the words "against the french republic" and declared that although he deemed the whole resolution unnecessary, and considered it as not naturally growing out of the president's message, which did not call upon us to declare or make war, yet as it must be the intention of the mover, or of some other member to follow it up with like declarations in relation to all other nations with whom the united states had any intercourse, provided they acted consistently, he thought it better to make the resolution a general one, even if it should be afterwards negatived. he, for himself, was as ready to say that, under existing circumstances, it was as expedient for the united states to go to war with any other nation as with the french republic. he saw no reason why that particular power should be singled out in the manner proposed; and as he was for cultivating peace, not with one only, but with all the nations of the world, he was willing so to declare his disposition, if any declaration was proper on the occasion. it was also to be observed, that it could not with propriety be objected against the amendment that there was no other nation with whom we were in danger of entering into hostility, for the tables of the house had been loaded with communications relative to the encroachments and unreasonable demands of another country, which had occasioned an apprehension that the united states would be driven to the necessity of a war in order to obtain possession of its own territory. if, therefore, gentlemen were anxious to cultivate harmony with the french only, then the resolution as first moved, was proper for their adoption; but if the preservation of peace with all was their real object, then he trusted that the amendment could not with propriety be rejected by those gentlemen who had introduced and advocated a proposition the utility of which, under any modification, he owned for himself, he could not discern, although he was willing to render it as unexceptionable as possible before it was decided upon. mr. sprigg informed the gentleman from new jersey that the reason why the french republic was inserted in the resolution was because it was founded on the message of the president, which related solely to the french republic. for his part, he was not desirous of war with any power on earth. mr. harper seconded the motion of the gentleman from new jersey, because he thought it would be better in that shape. he had no particular objection to the resolution as proposed, only that he thought it a resolution about nothing; but as it might gratify the mover and some others, he should not object to it. he was not himself disposed for war, but for peace, while peace could be preserved. but he never said, and would not say, that war was the worst thing which could happen to this country; he thought submission to the aggressions of a foreign power infinitely worse. if gentlemen meant by agreeing to this resolution, to prevent the country from being put into a state of defence; if they meant by it to effect an entering wedge to submission, he trusted they would find themselves mistaken; for though he believed the true interest of the country lay in peace, yet he was not disposed to recede from any measures which he thought proper through fear of war. or did gentlemen intend, by this question of peace or war, to enlist the popular prejudices in favor of peace, in order to prevent proper measures being taken for the defence of the country? if this was their view he should be the first to strip off the disguise. he trusted that this was not the case, as he saw it connected with another resolution which proposed the taking of measures for the defence of the country. the question at present, said mr. h., is not a question of war, but of defence; and no two questions are more distinct. if gentlemen confound these two questions, and are determined to take no measures of defence lest they should lead to war, let them say so. he believed, however, the distinction was well understood by the american people. mr. giles believed this the proper time to declare whether the country should remain in peace or go to war. he thought the resolution proper as it stood, because founded on the message of the president, in which the french republic is only named. there was a part of that message, he said, which, in his opinion, amounted to a declaration of war. the president tells the house, "that the situation of things is materially changed since he issued his order to prevent the arming of merchant vessels." as far as he understood the situation of the united states at that time, it was a state of neutrality. if that state is changed, and the present is not a state of neutrality, he wished to know what is. he knew only of two states, a state of neutrality and a state of war; he knew of no mongrel state between them. therefore, if the president of the united states, could declare war, we are now in war. believing, however, that congress had alone the power to declare war, he thought it time to declare what the state of the nation is. he did not know whether the object might not be answered by the resolution being general, as he was and always had been (notwithstanding insinuations to the contrary) against war with any nation upon the earth. he looked upon it as the greatest calamity which could befal any nation; and whatever may be the phantoms raised in perspective of national honor and glory in such a state, they will, in the end, all prove fallacious. he believed no nation ought to go to war except when attacked; and this kind of war he should be as ready to meet as any one. mr. g. said, gentlemen were continually speaking of the degraded state of the nation, when their own measures had led to it. (mr. harper denied that he had ever said the nation was in a degraded state.) mr. g. was not sure that he had said it, but he believed he had frequently heard it. he believed we were in a state which required the utmost vigor; but he thought every measure should be avoided which might involve the country in war. for if we were to go to war with the french at present, he knew not what ever could take place which could produce peace; it must be a war of extermination. mr. g. did not know that the present question was very important; but believing it strictly conformable to the message of the president, he should be in favor of it as it stood, and against the amendment. mr. nicholas considered this amendment as defeating the resolution. was there nothing, he asked, which called for a declaration of the kind proposed? was it not clear to every one that the country was going fast into a state of war, and (in the words of mr. sitgreaves) was it not to be expected? ought not the legislature then, (who alone have the power of declaring war,) to determine the state of the country, and say whether they mean to go immediately to war or not? he thought the necessity of the resolution was sufficiently evident, by the motion which had been made to change the words from "resort to war," to declare war; in the one case the mischief was met, whilst the other meant nothing. and if gentlemen were ready to say we were not prepared to declare war, and at the same were not ready to say it is not expedient to resort to war, it proved that they thought war might be made without being declared. he asked whether gentlemen did not believe the executive had taken measures which would lead to war? and that if he were at liberty to act upon a change of circumstances between this country and others, congress were not brought into a situation in which they had no choice? many discussions had heretofore taken place on the constitution, but he had never heard it doubted that congress had the power over the progress of what led to war, as well as the power of declaring war; but if the president could take the measures which he had taken, with respect to arming merchant vessels, he, and not congress, had the power of making war. he asked whether, when report went so far as to speak of an alliance, offensive and defensive, with a foreign country, it was not time to come to a declaration on the subject? suppose such an alliance was formed, would it not be said that congress are bound to carry it into effect? he knew it would, though he should resist the doctrine. mr. n. said, he should be as unwilling to submit to any foreign country as the gentleman from south carolina; but he could not, like that gentleman, say he was not afraid of war. i am, said he, afraid of it. this country affords me all the happiness i can wish or hope for, and i know war will be destructive to it. what was the difference between himself and that gentleman in this respect, he could not tell; it was to him surprising that any gentleman should be without fear as to the mischiefs of war. he was of opinion that the step taken by the president, with respect to merchant vessels, went to declare that we rested our cause on arms, which was not calculated to produce any good effect in our favor. he hoped the amendment would not be agreed to; if it was, he should vote against the resolution itself; and he did not think the gentleman from new jersey, when he read the message of the president, could think there was as much danger of a war with any other country as with the french republic. mr. brooks agreed with the gentleman who brought forward this resolution, so far as it declares we are not prepared to resort to war. he believed no nation or man who had common understanding could be fond of war. the people of this country have yet the recollection of the fatal effects of the late war. but there are two kinds of war, offensive and defensive. he wished gentlemen to distinguish between them; for though he was ready to declare against offensive war, and to submit to small injuries rather than make defensive war; yet he was not willing to say he should not be ready to defend his country against the attack of any foreign power whatever. he hoped he should be believed in this declaration, as he had formerly been employed in the defence of it; and if gentlemen meant that though foreign nations attempt to invade our territory, and to reduce us again to the colonies of a foreign power, they would not repel them, he could not join them in opinion. and though he should vote for the resolution as moved to be amended, he should feel himself at perfect liberty to defend his country in case of attack. he wondered the gentleman from virginia should object to vote for the resolution, because it was general, as it included the french republic as well as all other nations. mr. rutledge trusted the sentiments which the gentleman from new york had expressed would govern the committee, and that all were ready to say, that though we value the blessings of peace, yet we are ready to resist insult and injury from whatever quarter they come. he hoped this would be the conduct of this country; and notwithstanding much had been heard about british parties and french parties, that all would unite in this determination. this being his opinion, he should vote for the amendment; and he hoped gentlemen would be satisfied with this declaration, and that no more would be heard of a party in the house in favor of war. though he meant to vote for the resolution, he thought it unnecessary; but in these days of jealousy and suspicion, if he were not to vote for it, he should expect to be told he was in favor of war. gentlemen asked whether war is not approaching? and whether the executive is not hastening it? to the latter question he would answer in the negative; with respect to the other, he could not answer, as it depended on france, and so versatile and uncertain is every thing in that country, that no dependence can be had upon it. mr. r. said, at the last session, when we had no intercourse with france, he thought it necessary we should have it: that intercourse had proved ineffectual; and though he sincerely wished for peace, yet he saw something in the conduct of france which almost precluded hope. the gentleman from virginia had said, that this country had frequently been stated as in a degraded state. he did not recollect to have made the declaration, but this was his opinion. when our national rights had been violated; when our commerce had been depredated; when the vessels of belligerent powers, which had sought an asylum in our waters, had been plundered and burnt, he thought it necessary to go into measures of defence. he thought our frigates ought not to have remained at the wharves; that our extensive sea-coast on which is much wealth, should not be unprotected: he thought our seaports, the principal depots of our revenue, ought to have been fortified. he joined his friends in their attempts to have carried these measures, and, when they failed, he could not help thinking his country was in a degraded state and that she had lost the spirit which animated her in the year . he hoped, however, that now, when france had gone to the lengths which she has gone to, that there would have been only one sentiment as to the propriety of the measures formerly proposed. but though he thought the nation in a degraded state, he was not in favor of war. he believed the citizens of this country were not for it. he believed the government was averse to war; and that no part of it was more so than the executive. war would be a loss to this country; and to no individual more than the executive. he is no warrior, and, consequently, war has no laurels in store for him. the gentleman from virginia has spoken of war as having something dazzling in perspective; something which flattered pride and ambition. but did the gentleman suppose that a war with france could be flattering to pride or ambition? it could not; it would be a war of prudence; we must shut ourselves up, and act on the defensive, and say, "when reason returns, when an ebb shall take place in the affairs of france, when her flow of victories shall be over, she will do us justice." in the mean time, we must defend ourselves. mr. r. repeated, that he did not believe any man in that house could wish for war; when he looked around him and saw gentlemen whose wounds are yet sore from former service; when he saw them voting for measures of defence, he could not believe, nor could any believe, that they wished to plunge the country in war. it would sooner be believed that gentlemen who made the charges were mistaken. mr. sewall was opposed to the proposition as it now stood, and hoped it would be amended. what effect it would then have, he left those to judge who introduced it. mr. s. said, he and those who, on all questions of defence, had voted with him, had been endeavoring for some time to go into some measures of that kind, and to determine whether these measures should be confined to our own limits or be extended to the ocean. these measures ought now to be decided upon, as this is a moment in which our commerce is depredated upon in a most unprecedented manner. we are now, said he, called upon to consider the hazards of our situation. [mr. s. then quoted a part of the president's message, as to the situation of our affairs in france, and as to the decree which was proposed respecting the taking of english goods on board of neutral vessels, and the carrying of which was declared to make neutral vessels good prizes.] this last regulation, mr. s. said, was a direct violation of the law of nations, and amounted to a declaration of war on the part of france against this country. but, instead of making any defence, gentlemen call upon the committee to declare we are not disposed to resort to war against the french republic; so that, after we have been injured and abused, and denied the common rights of humanity, we are not to complain, but make a declaration that we will not go to war. was then, he asked, a question of war a card of politeness? did a nation ever make a declaration that it was not at war? it could not say so, except it were in so degraded a state that it had no rights capable of injury. to say we are not at war was to say no more than it is light when the sun shines; but to call upon the committee to say so at this time, was to degrade the nation from its independence, and below its character. the present state of things, mr. s. said, ought to be considered as a state of war, not declared by us, but against us, by the french republic; and if we want spirit to defend ourselves, let us not say so. we may refrain from acting, but let us not say we receive injuries with thankfulness. but this proposition goes still further. in a moment of public danger, it goes to divide and separate this house from the president of the united states. the gentleman from virginia had well explained this resolution, when he said, it was intended to interrupt the views of the president of the united states. that gentleman considered the message of the president as a declaration of war, and this resolution was to be in contradiction to it. if this was the sense in which it was to be understood, it was false in point of fact; for the president had neither declared war nor called upon congress to declare war; no such sentiment could be found in the message. to agree to the proposition as it stands, would be to give countenance to the assertion of the french government, that we are a people divided from our government; but, taking it with the amendment, he looked upon it as a harmless thing. mr. s. concluded, by saying, that he considered the conduct of france in the light of war. how far we would resent it, was the question; whether offensively or defensively. he was in favor of defensive measures, as we are not equal to offensive measures, (he wished to god we were.) it was our weakness, and the division which had appeared in our councils, that had invited these attacks. he trusted they should now unite and repel them. mr. gallatin said, before the speech of the gentleman who had just sat down, he could not discover what was the meaning of the amendment, to strike out the words "against the french republic," as, when the house were in a committee of the whole on the state of the union for considering the late message of the president, the resolution was perfectly consonant. besides, we have no danger to apprehend from any other power, since our dispute is settled with spain. the intention of the amendment was evidently to render the resolution as unmeaning as possible. every gentleman who had spoken on this subject, had agreed that war is not a desirable object for the united states. he gave them credit for the assertion. but this was not the question; but whether we are prepared to resort to war under existing circumstances. it is a question of fact. mr. g. took notice of the different modes which had been attempted to defeat the resolution; but, though the present amendment were agreed to, he should still vote in favor of the resolution; for it would be effectual, in some degree, as it could only apply to the french nation, though it was not so expressed. mr. g. believed the united states had arrived at a crisis at which a stand ought to be made, in which it was necessary for congress to say whether they will resort to war or preserve peace. he was led to this conclusion from a review of the conduct of france, and of the late message of the president. in respect to france, we know, that some time ago, she declared our treaty with her to be at an end; though not in words, the result was to deprive us of the advantages derived from that treaty. in the next place, she dismissed our minister plenipotentiary. under these circumstances, the president called the extraordinary session of congress, and when met together, after having related the reasons which induced this call, he concluded with saying, "that it was his sincere desire to preserve peace and friendship with all nations, and believing that neither the honor nor the interest of the united states absolutely forbade the repetition of advances for securing these desirable objects, he should not fail to promote and accelerate an accommodation," &c. the president accordingly sent envoys to france, and the result of the embassy was given to congress in the last message, which was now under consideration, in which he says, "the object of the mission cannot be accomplished on terms compatible with the safety, honor, or the essential interests of the nation." the people of the united states are therefore informed, that negotiations are at an end, and that we cannot obtain redress for wrongs, but may expect a continuation of captures, in consequence of the decree which it was supposed was passed, for seizing all neutral vessels with british property, manufactures, or produce, on board. mr. g. said, he differed in opinion from the gentleman last up, that this was a declaration of war. he allowed it would be justifiable ground of war for this country, and that, on this account, it was necessary to agree to, or reject the present proposition, in order to determine the ground intended to be taken. for, though there may be justifiable cause for war, if it is not our interest to go to war, the resolution will be agreed to. there was another reason why this resolution ought to be now decided, which arose from the conduct of our executive. he has declared that a change of circumstances has taken place which has occasioned him to withdraw his order forbidding merchant vessels to arm; which amounts to this, that he now permits vessels of the united states to use means of defence against any attack which may be made upon them. mr. g. thought it necessary, therefore, to declare, whether we were to pursue measures of war or peace. before measures are taken which will lead to war, the house ought to decide whether it is their intention at present to go to war. the gentleman from new york had spoken of the difference between offensive and defensive war. this related to the motives, more than to the manner, of carrying on war; because when war is once entered into, though it may be at first defensive, it cannot remain so. it would be ridiculous, for instance, to say, that our frigates should prevent our vessels from being taken; but that they should not take french privateers. but it was said, if the resolution was agreed to, it would confirm the opinion which had been held that congress and the executive were divided in opinion. the gentleman from massachusetts (mr. sewall) told the house that the question was war or peace; that the conduct of france was a declaration of war, yet as the president had not called upon congress to go to war, they ought not to declare that it is not expedient to resort to war. but if it be assumed as a principle, which that gentleman asserts, that the conduct of the french is a declaration of war, and the president has told us we are in war, the resolution could not be improper. or if his other principle be assumed, that the information of the president does not amount to war, then an agreement to the resolution would show that congress concurred with him in opinion, that it is not proper at present to resort to war. so that in both cases, the resolution is proper. mr. g. said he was precluded by the amendment from going into the merits of the resolution. his arguments went to show the propriety of agreeing to it in one way or other. nor did he mean to take any notice of what had been said about a division of opinion in our councils having invited the insults and injuries which france had committed against this country. if he were to do this, he must have recourse to recrimination, which he did not wish. he wished rather to take a serious view of our present situation, and either meet it by war, or by measures which shall avoid war. on both sides are difficulties; but the difficulties and inconveniences of both ought to be weighed, and the least taken; and, having determined, measures ought to be pursued accordingly. he did not wish to adopt the resolution as proposed to be amended, and then go on and act directly contrary to it. he thought it best to meet the resolution at once, and say whether we are determined on war or peace. if we go to war, we must expect to meet all the expense and evils of such a state; and if we remain at peace, we must, in a certain degree, _submit_. he meant to say, that we must submit to have a number of our vessels taken. but whether we shall have more taken in adopting one course than the other, he left to gentlemen to determine. he thought the submission he had mentioned, very different from the submission which had been spoken of by the gentleman from south carolina, and others. mr. g. concluded, by observing, that the conduct of france must tend to destroy that influence which gentlemen had so often complained of as existing in this country. indeed, he was convinced that at the commencement of her revolution there was a great enthusiasm amongst our citizens in favor of her cause, which naturally arose from their having been engaged in a similar contest; but he believed these feelings had been greatly diminished by her late conduct towards this country. he thought, therefore, that whether we engaged in war, or remained in a state of peace, much need not be apprehended from the influence of france in our councils. the business had come to a mere matter of calculation, as to what course will be best to be taken for the interest and happiness of the country. if he could separate defensive from offensive war at sea, he should be in favor of it; but he could not make the distinction, and therefore he should be in favor of pursuing measures of peace. several persons rose, but, being about three o'clock, a motion was made for the committee to rise, which was negatived-- to . mr. dana did not conceive that the construction of language given by the gentleman from pennsylvania, was to be taken as true, without examination. he trusted not. the gentleman stated the question to be peace or war; he could not conceive it to be such. it was unfortunate that, in this important crisis, the house should be engaged, like a set of rhetoricians, in disputing the meaning of words. indeed, the decision on the present motion, he thought wholly unimportant. the gentleman last up had said there was no distinction between offensive and defensive war, and that he was, therefore, opposed to either. mr. d. thought the distinction clear; offensive war, is when an attack is made upon another; and defensive, when a nation has recourse to war, merely for self-defence. but there was another state of things which could not have the name of war, which was to have recourse to measures of defence; to be prepared in cases of attack. it was clear, by the law of nations, that to prepare for defence, was not to commit hostility. to say that to take measure of defence is hostility, was a new definition, and it was the mighty discovery of the gentleman from pennsylvania. did gentlemen mean that if we should make use of force against lawless violence, it is war? if not, what did all that had been said amount to? he thought the proposition perfectly nugatory. but the gentleman said, that his friend from massachusetts had said, that france had already declared war against us, and that, therefore, we must resort to war. for his part, he did not know what gentlemen meant by resorting to war. if they had adopted terms which had any legal meaning, he could have understood them, but the present might mean every thing, or nothing. if it meant any thing, it meant taking active measures against france in the first instance. he was not only ready to say he would not consent to do this with respect to france, but with respect to every other nation. the gentleman from pennsylvania, and two gentlemen from virginia, had said that the message of the president amounted to a declaration that we were now in war. this idea he thought was stated very incorrectly. they did not seem to have understood the meaning of the language of the president. the state of things which existed at the time orders were issued to prevent the arming of merchant vessels was essentially different from the present; then there was an evident disposition in the owners of vessels to cruise against a foreign belligerent nation, and the order was issued to prevent attack and plunder; but the desire to arm at present is for the purpose of defence merely, and not to cruise or plunder. there is a law forbidding vessels to arm for the purpose of cruising; but none forbidding merchants to arm in their own defence. this was the fair construction, he believed, of the meaning of the president. mr. otis observed, that the opposers of this amendment could assign no better reason for declaring a desire to keep peace with the french republic, to the exclusion of other nations, than their own construction of the president's last message, which they considered as directed against that republic only; but the house having resolved itself into a committee of the whole on the state of the union, the resolution on the table had no greater relation to that message than to any former speech or message, or to the affairs of the union at large. if it was intended as an answer to the message, it should be moved in that form; but unless it was in a particular manner connected with it, the public could not connect it more naturally with this message, than the speech delivered at the opening of the session. the house had been heretofore informed, that france was not the only country with which a rupture was to be apprehended. spain might be considered, until lately, as having actually invaded our territory; and though the presumption at present was, that the causes of contention with that country were removed, yet they were not officially informed of that fact, and without such information it was not less proper to express their desire of maintaining peace with spain than with other countries. again, gentlemen had often intimated that a war with france would involve us in a war with the nations in alliance with her. it was therefore inexpedient to show a contempt or indifference for them, by leaving them out of our pacific manifesto. he considered the message in a different view from many gentlemen. but admitting, for the sake of argument, that the president had declared an opinion upon the facts stated by him, that war was inevitable; gentlemen must consider the fact to be true; if they doubted it, they ought to demand information. how would this resolution then stand? in reply to assurances that negotiation had failed; that our commissioners were treated with neglect and contempt; that letters of marque and reprisal were issued against our vessels; and that the most hostile appearances were discernible on the part of france; it was proposed to declare, that with them, and them only, it was inexpedient to resort to war. such a proposal would hardly be found in the annals of the most humble and degraded nation. he disapproved of the resolution, though he should vote for the amendment, and would not, on the present occasion, follow gentlemen who had gone at large into the merits of the resolution. upon the extent of the defensive measures proposed by gentlemen, his feelings inclined him to enlarge; but this discussion would be more pertinent upon some other question. he would merely hint, that actual invasion might not be the worst calamity to this country. he could conceive of a partial invasion of our territory that would be much less injurious, and attended with much less loss than the total ruin of our commerce. the call for the committee to rise being repeated, mr. n. smith hoped gentlemen would be satisfied to take the question, which he thought very unimportant. the time consumed in discussing it was, however, important, as other concerns called for attention. he knew there were gentlemen who chose rather to address the people of the united states than to legislate. he thought it better to legislate, than to preach to the people. he looked upon the present resolution as a text from which it was intended to alarm the people with respect to war, and he wished not to indulge gentlemen in their design. he wished the question to be taken for another reason. it was suggested by the gentleman from virginia, that the message of the president was considered by the people as a declaration of war, and that reports were in circulation, that a treaty, offensive and defensive, was concluded with great britain. after this, he would call the attention of the committee to the resolution, which was, in effect, to say, we must interfere, or war will be brought upon the country. did not this go to sanction a report which was as false and malignant as even jacobinism could invent? it did; and he hoped, they would not so far sanction the report, as to let the motion lie before them undecided. mr. dayton hoped the committee would rise. the gentleman last up began with saying the proposition was of no importance; but, before he sat down, showed that he thought differently. mr. d. thought it was of importance that the committee should come to a right decision upon it, and say whether it ought to be agreed to in general terms, or rejected. mr. n. smith explained. mr. j. williams thought the question trifling, and hoped a decision would be had upon it. mr. giles said, the question was a question of peace or war, and yet gentlemen call it trifling. he did not mean to alarm the people of the united states, but he wished them to understand their situation. he acknowledged he was himself much alarmed. gentlemen were willing to engage in defensive, but not in offensive war; but when war was once begun it would not be in the power of the united states to keep it within the character of defensive war. indeed the gentleman from massachusetts, when he spoke of defensive war, confessed our inability for offensive war, and uttered a prayer to the supreme being that we were able to engage offensively; and where, he asked, with such sentiments, is the difference between offensive and defensive war? he could see none; he deprecated war of every kind. mr. j. williams hoped the question would be taken. as he before stated, he thought it trifling, and the debate upon it only calculated to alarm the people, which seemed to be the object of gentlemen. if the question was not taken before they adjourned, much debate would be had, and much time spent to very little purpose. he thought it very extraordinary, as no one was found to bring forward a resolution to declare war, that a gentleman would introduce a resolution of its being inexpedient so to do. he was persuaded that this negative mode of proceeding was calculated to draw on a debate, to set the people against the executive. time, he said, was precious; they had sat near five months and done but little, much remained to be done, and as all had declared their aversion to a war, the people should be undeceived. he had himself seen gentlemen write upon the late message of the president, for the purpose of sending to their constituents, "_a war message against france_." mr. macon wished the gentleman would name who had thus written. a call of order took place: and a motion was made for the committee to rise, and carried. wednesday, march . _relations with france._ the house again resolved itself into a committee of the whole on the state of the union, when the amendment to the first of mr. sprigg's propositions, as to the inexpediency, under existing circumstances, of resorting to war against the french republic, being under consideration; which amendment is to strike out the words "french republic," mr. pinckney rose and said, he was in favor of the amendment, because it tended to make what he thought an improper proposition, in some degree, nugatory; for he believed to agree to the resolution without it, would be prejudicial to the interest and welfare of the country, as he did not think the period had arrived which called for a decision on measures of war or peace. if such a declaration had been necessary, he should have expected it to come from gentlemen in favor of a war, declaring, that it is expedient to go to war, as it was a very uncommon thing to declare we will not do a thing. his strongest reason against coming to this resolution, however, was, that at this period the house had not sufficient information concerning the whole of this business, to enable them to form a correct judgment upon it. the president told the house, indeed, that he had little hope of a favorable termination of the negotiation, but they knew nothing of the train of the negotiation, or of the circumstances attending it. they knew that our commissioners had not been received; but they had not sufficient information as to the manner in which they had been treated, to enable them to come to the decision proposed. the gentleman who proposed the resolution, said it was time to come forward and declare whether we will have peace or war. would to god, said mr. p., it was in our power, by any such declaration, to avert war, or maintain peace; but he believed this did not depend upon any declaration of ours. in questions of war there were always two parties, one of whom was generally the aggressor, and the other generally passive. in the present case, he considered this country as the passive party, and, therefore, any declaration on our part would have little effect. we know that individuals or nations induced to pursue measures from interest or passion, are not easily diverted from their purpose. if the french are actuated by either of these motives, no declaration of ours will prevent the calamity. such a proposition would rather accelerate than prevent the evil. if our declarations could have availed, they have not been wanting. from the first period of a misunderstanding between the two countries, declarations have been made deprecating war in general terms, but particularly with that nation. a minister plenipotentiary had been sent to explain the views of this government, and to remove any jealousies which might exist, and to make such specific propositions as were thought necessary; but our minister was rejected without a hearing. the next measure was, to send special commissioners, in order to settle our differences and avert the calamity of war. we have, therefore, made sufficient declarations of our pacific intentions. indeed, he thought too much had been rested on these declarations, as nothing had been done for our defence. when we looked at our seaports, and saw their defenceless condition, he thought it evident sufficient attention had not been paid to them, knowing that war might, at least, be a possible event. this resolution differed exceedingly from any thing which took place when we had a misunderstanding with england in . at that time, when england issued her extraordinary order of the th of november, and our commerce was depredated upon, measures were spoken of for countervailing the injuries which our citizens experienced, but no proposition like the present was produced. we are now aggrieved and injured in a most extraordinary manner, but we say we will not go to war. on a former occasion he had heard of a variety of restrictive regulations, proposed with a view of restraining the injuries committed upon us, and to bring great britain to reason; and he did expect something similar would have been proposed on the present occasion, but nothing of the kind had appeared. it was true we had not so great hold of the french nation as of the british, in this respect, but we had some; and he believed measures might be taken which would induce the nation to hear reason. but, instead of this, it was proposed that we should say, we have been injured and aggrieved; but we will not oppose you, we will not go to war with you. the gentleman from pennsylvania (mr. gallatin) had gone further than perhaps the resolution on the table would warrant. he says, the adoption of this resolution will go to prevent the taking of any measures which may, in their tendency, lead to war. if gentlemen meant by this, that it was to prevent any measures being taken for the protection of our commerce, the adoption of the resolution would not only declare that we will not go to war, but that we will not take any measures for the defence of our property. it appeared to him that that gentleman had himself given the best reasons for modifying this resolution, so as to make it as little mischievous as possible. for he had told the committee that france had set at naught her treaty with us; but though they have done this, said mr. p., they have endeavored to justify their depredations, by insisting that, according to that treaty, it was necessary for vessels to carry a _rôle d'equipage_. mr. p. added, there was another order of the french government which was so contrary to right, so cruel in its consequences, so degrading to this country, and so inhuman in its tendency, that he could not avoid noticing it. it was the decree which declares that every american citizen found on board the privateer of an enemy, shall be considered and treated as a pirate. they pretended to found this order on our treaty with great britain; but he wished gentlemen who thought it justifiable, to turn to that treaty, and see whether there was any thing there which countenanced so violent a measure. but this is not all, the gentleman from pennsylvania allowed that a decree had lately been passed which violates all the laws of neutral nations, viz; that if the property, manufactures, or produce, of an enemy be found on board a neutral vessel, it shall be good prize. our ministers, also, who were commissioned to conciliate, and even to make concessions, though they had been in paris three months, cap in hand, had not been able to get a hearing. under all these grievances, what, said he, are we called upon to do? he should not have been surprised if some one, fired with the injuries we have received, had brought forward a proposition for war. but, instead of this, smarting as we are under injuries, our commerce bleeding at every pore, and our country deeply humiliated, we are called upon to say: you have done every thing to injure, insult, and degrade us, but we have deserved it: we will do nothing to oppose you. though god and nature have given us power, we will not go to war with you, neither on the present occasion, nor on any other, whatever injury you may commit upon us. however humiliating our conduct might be, he repeated, it would have no effect upon that nation. he did not wish to animadvert upon the conduct of any country; but there was one instance of the treatment which the french republic has exhibited to an independent state, which he could not help noticing. it was in respect to venice, which would show, that no humiliation, no concession, would avert the calamity which threatens us, if the rulers of the country are determined upon war. if he was not misinformed, the circumstances of the case were as follows: the venetians were at peace, and endeavoring to pursue a line of neutrality. a tumult arose in one of their towns, and the populace did, in a barbarous and most unjustifiable manner, massacre a number of french soldiers. this was an injury which called for and deserved atonement. a retaliation took place fully commensurate with the crime. the venetians made every concession in their power. but the french commander was not satisfied; he took vengeance upon them by overturning their government--a government which had stood the test of five hundred years. he should have supposed that the french would now have been satisfied; but the matter did not stop here. the government being overturned, the people were promised a free government, and an amelioration of their condition. they were proceeding in the establishment of a government; but, when the treaty came to be made between the french republic and the emperor, he supposed it was thought to be for the interest of that republic to sacrifice a part of this territory, and to give it up to the emperor, to take a part to themselves, and to annex another part to the cisalpine republic. this was done; and he believed the very part which had committed the offence against the french government, had been rewarded by being joined to a free government. this division of the venetian territory was not the work of a young officer, elated by victory and conquest, or enraged by the treatment which his soldiers had received. the french directory had come forward, and, by their decree, had applauded the whole conduct of their general in the most unqualified terms, particularly as to venice and genoa. he would not take up the time of the committee by citing the conduct of the french towards the latter republic. the case of venice was sufficient to show how little was to be expected from a humiliating conduct. mr. giles thought the gentleman who had just sat down had been less correct in his statements than he usually was. he would allude particularly to one instance. that gentleman says, whatever aggressions and insults may be heaped upon us, the supporters of the resolution will not go to war. the proposition held a directly contrary language. it says: "that, under present circumstances, the united states deem it advisable to remain in a state of peace." [mr. pinckney said the reason why he had made this remark was, that yesterday the gentleman himself had said, he should not be for going to war, unless the country was invaded. he, therefore, connected the resolution and this declaration together.] mr. g. said, he still repeated the same thing; that we ought not to resort to war beyond the limits of the united states. but he drew a contrary inference from this, from that which that gentleman had drawn, because he had accompanied the declaration with another, that he was perfectly ready to prepare to that extent for defence. he would explain the grounds of this opinion. within our own limits we are capable of making something like exertion, and there, he believed, exertions might be made to advantage. indeed, one of the propositions, which is connected with the present, goes to this purpose, and therefore with what propriety could the gentleman say, he and those who were of his opinion were not for preparing for defence till the enemy is at the door? nor could he see any thing like humiliation in this. nay, he was convinced, if we carried our preparations for defence beyond our own limits, instead of gaining glory or honor, we shall meet with nothing but disgrace, as we are not prepared to make a defence at sea. indeed, the moment we get beyond our jurisdictional line, defence will become offence, because there will be no evidence by which it can be ascertained by whom the attack commenced. it would, therefore, be unwise to permit ourselves to be placed in this situation. if any object was to be effected by going out to sea, it must be the protection of our commerce with great britain; but it was known that the two acts of the british parliament which took place in january last, if peace continues, may take that trade in a great measure from us. he did not think, therefore, that this was a sufficient object for which to incur so much risk. at present, said mr. g. there is a pretty general opinion in the country (and he thought there was much ground for the opinion) that there is a disposition in a part of this house, and in part of the government, for war; and he thought it was proper to come to a declaration upon the subject. this would not only have a good effect upon our own citizens, but it would convince european powers, that though we were preparing for defence, we were not preparing for war. mr. g. said, he was not satisfied with the construction which the gentleman from connecticut (mr. dana) had given to that part of the message which speaks of our situation being changed. he did not believe the president had any reference to the dispositions of the people, but to the state of things generally. the apprehension of war had already begun to produce disagreeable effects in his part of the country. he had received information that produce had fallen in price, and that the sale was very dull. he was of opinion, therefore, that the proposed declaration, if agreed to, would appease the minds of the people. it was said it would have no good effect upon the executive directory. he did not know that it would. but it could have no bad effect; and it might have a good one, for he did not think that body quite so abandoned as some gentlemen thought them. the gentleman last up had spoken of the partition of venice. he himself saw it with concern; but where was the difference in crime between the french republic and the emperor? each took a part. but what was all this to the united states? were they to go to war to avenge this partition? we heard nothing of this kind some years ago, when a partition of poland took place. for his own part, he wished to leave the powers of europe to themselves, and to draw ourselves within our own boundary, where we should be fully equal to our defence against any power on earth. mr. harper.--when this resolution was first proposed, it appeared to him to be one of those nugatory measures which might either be agreed to or rejected, without producing any effect; and, until he saw the resistance which was given to the amendment, he remained of the same opinion; but now he found it was to say to the french nation, "you may commit against us injury after injury, and insult after insult, we never will resist you." if this were not the intention, why resist the amendment? taking this to be the intention, he should bestow some observations upon it. gentlemen preached about peace. they cry, "peace, peace," as if we, holding the scale of the world, had the power to preserve it. do not gentlemen know that peace or war is not in our power? they do know it, and that all in our power is to resist, or submit. was not the clamor which was heard about peace, in so many words, saying, you must submit, not only to what injuries you have received, but to what you may hereafter receive? was not every advance, on our part, for an adjustment of differences, met with new injuries and new insults? it would not be denied. if peace was all that gentlemen wanted, they would take the resolution in general terms, as proposed to be amended; but their opposing it shows that they have no objection to hostility, if it be not against the french nation--he would not say whose servants they were desirous of being, but against those whom they dread they are afraid to lift up their finger. and this was the spirit of peace which they wished to preserve--a spirit which he deemed vile submission--a spirit which was afraid to complain, and which met every new insult without murmur. mr. h. rejoiced that this amendment was made, because it had unmasked the intentions of the mover and supporters of the original proposition. they were now obliged to avow, it is not peace with all the world which we want, but peace with france--a servile and abject submission to one nation; a nation in behalf of whom they have heretofore been eager of war; for, notwithstanding all their cries at present for peace, peace, when there is no peace, they have on a former occasion been equally zealous for war. all their efforts were then used to involve this country in war, upon the side of the french republic; but now, when measures of resistance are called for--not against france, but to prevent her from wounding her enemy through our sides--their cry is turned from war to peace. this he repeated, and, if they denied it, he would refer to written accounts of their discourses at that time, which would prove that they had sought war against england, and an alliance, offensive and defensive, with the french republic. at that time, he and those who generally vote with him, desired peace; and it required all their skill and firmness to preserve it, and much obloquy was thrown upon them on account of their exertions. the ground which he and his friends then took was--let us first try negotiation; if that fail, we will then join you in the war. but these gentlemen were, at that time, all in favor of war measures in the first instance. whence now this change of spirit? what has become of the spirit of , when it was said to be disgraceful to negotiate, and that it would be base to surrender the independence of our country to a foreign power? he wished he could see the breasts of gentlemen now glow with the patriotism which then animated them; but, instead of this, what do we see? a spirit of the most abject kind; a spirit that would leave all our property unprotected beyond the limits of our territory, so that our commerce, from which is derived five-sixths of our revenue, is to be abandoned, lest, in defending it, we should give offence to the french republic. the committee were now told it would be time enough to prepare for war when an invasion of our country was attempted. and why were they told this? because such an event is not likely to take place. gentlemen know that all the hostility which france wished to commit against this country may be done by destroying our commerce. but they are disposed to surrender this part of our rights, rather than resist; and what security had we that, if the country were invaded, these gentlemen would then resist? he apprehended that the same spirit which led them now to submit, would continue to actuate them. last year gentlemen were opposed to doing any thing which should alter the state of things. if this negotiation, said they, fail, we will then join you in active measures. but now, when that time is come, they tell us we must still sink lower, and become more degraded. we are to be contented, not only to see our ships captured, our property destroyed, our sailors led in chains, our revenue annihilated, but we must see the army of the enemy attempt to land, before we will resist. mr. h. said he would bring his proofs, to show that those gentlemen who are now so loud in their calls for peace, were heretofore the supporters of a war system. for this purpose, he adduced mr. monroe's view of the conduct of the executive of the united states, which, he said, was a publication which had met with the most unbounded and enthusiastic applauses from all the party; and he read from it an extract of a letter from mr. monroe to our secretary of state, dated paris, september , , pages and of the book, in which he states it to be his opinion, "that if a suitable attempt be made to engage the aid of the french government in support of our claims upon england, it may be accomplished; and that to secure success, it will be necessary to take the posts and invade canada." would any man, said mr. h., who shall read this passage, say that the system of these gentlemen is a peace system? and besides this proposition for taking the posts and invading canada, the same gentleman proposes an advance to france of five millions of dollars. yet these are the gentlemen who now are willing to say to france, "we will not fight you; we give you license to do us all the injury you please. you may fit out half a dozen frigates, which will be able to block up our ports; and we give you this notice that you may effect your purpose with little expense, and not prepare a large fleet for the purpose." the gentleman from virginia, (mr. giles,) whose zeal for keeping this country in an absolutely defenceless state, has surpassed all the zeal he ever before displayed, except that which he had shown on a former occasion for bringing us into war, has told us that peace is the best thing we can have; and that it would be knight-errantry to attempt to defend our property at sea. after our ministers have been sent off, and a decree passed which must destroy our commerce, and which had been already allowed to be just cause of war, this was the language of that gentleman on the present occasion. to show this gentleman's consistency, and because his language was at that time so spirited, so american, and carried with it so much force and energy, he could not forbear reading an extract from his speech on the th of march, , upon mr. dayton's motion to sequestrate british debts. the question was not then whether we should arm for our defence, but whether we should make an attempt at negotiation. the arguments of the gentleman were, it is true, somewhat misplaced, though they were nevertheless patriotic and admirable; and he could not account for the strange contrast of his present sentiments on any other ground than that he believed the true interest of this country was only to be effected by a treaty of alliance with france and war with her enemy. gentlemen who were on a former occasion in favor of spirited measures in defence of our rights, and were on this occasion the same, are consistent; though their arguments might not altogether be properly timed, yet they were radically right. mr. h. said, he would bring another example to the view of the committee. he meant that of switzerland. attempt after attempt had been made by france on the independence of that country. after going a variety of lengths, they effected their purpose of driving from thence that unfortunate class of men, the emigrants, who had been persecuted by those who had usurped all authority in france, and who sought the rights of hospitality amongst them. new aggressions were made; they took possession of a part of the swiss territory, and displaced their magistrates. seeing that every submission invited fresh insult, they united, hand in hand, took up arms, and reinstated the magistrates who had been displaced, and resolved to live free or die. what was the consequence of this spirited conduct? the french withdrew from their territory, disavowed the measures of their general, and declared that they desired nothing more than to leave the swiss in full possession of their rights. let us, said mr. h., take warning by this energetic example of the swiss. let us now begin to resist. let us declare that we wish to preserve peace with all the world; that we allow that peace is good, but that we believe independence is better; that peace is desirable, but not at any price--and then france will relinquish her aggressions. at this point the committee rose and had leave to sit again. thursday, march . _relations with france._ the house again resolved itself into a committee of the whole on the state of the union, and the amendment to the first resolution moved by mr. sprigg, as to the inexpediency, under existing circumstances, of resorting to war against the french republic, which amendment is, to strike out the words "french republic," being under consideration, mr. giles rose. it would be recollected, he said, that yesterday an attack had been made upon him, as indecent in its manner as it was in itself novel and unprecedented. he had been eight years in congress, but he never before heard so direct and personal an attack. he was pleased, however, that it had been made, and only regretted that his state of health was such as, he feared, would not suffer him to go so fully into a refutation of the charges which had been brought against him as he could wish. he should, however, state such circumstances as would not only disprove the facts alleged against him, but also prove that the reverse of them was true. in doing which, he begged to be corrected if he should misstate any thing. the gentleman from south carolina (mr. harper) had said "that it had been the object of himself and his associates, but particularly of himself, since the year , to go to war with great britain, if possible, and to enter into a treaty of alliance, offensive and defensive, with france." this charge he declared to be entirely void of truth. he knew that slanders of this kind had been circulated in an artful manner through the united states from that time to the present, but he never before heard the charge publicly made. being made, he would refute it, though it had been the foundation of two long speeches of that gentleman; for, whenever slander assumes an erect front, it is dissipated by the first ray of truth which meets it. he trusted he should prove, by a reference to the debate which had already been quoted, and to others, that he had never been in favor of a war with great britain; and as to an alliance, offensive and defensive, with france, he never heard such a proposition in private conversation, and it will be allowed that no such proposition was ever publicly made. the inconsistency of his conduct had been spoken of. the gentleman from south carolina said it was unaccountable to him how the author of such animated sentiments as were delivered by him, (mr. g.,) in , could now utter sentiments so grovelling and pitiful as those heard from him. he wished the gentleman had selected the passages to which he alluded, as he himself was unconscious of any difference between those which he then delivered and his present sentiments. from the year to the present period, he had uniformly declared it to be his opinion "that war is justifiable only in case of self-defence." if boldness of assertion and dogmatism of expression would have availed, the gentleman from south carolina must have been victorious; but he would beg to turn the attention of the committee to facts. that gentleman had first introduced the book of mr. monroe, the sentiments of which, he said, certain gentlemen, by their approbation of it, had adopted as their own. mr. g. said he had read the book, and had found a great deal to commend in it, and little to condemn. human nature was liable to err. if the gentleman himself were to review his own political history, he doubted whether it would be found to be always consistent. there might have been errors in mr. monroe's ministry, but he believed they would be found to be as few as ever attended a negotiation which was encompassed with so many difficulties. what, he asked, was the letter which the gentleman read from his book? it was a letter dated december , . this was not a letter from mr. monroe to his associates, but to the secretary of state; and, if any conspiracy was intended, general washington and his secretaries must have been the conspirators. he saw nothing more in this letter than a suggestion of what might be done if the government thought proper. mr. g. stated the situation of things at that time. in the autumn of the president laid before congress a communication stating that nothing further could be done between this country and great britain by way of negotiation, and what remained to be done was left to congress. there never was so threatening a state of affairs between great britain and this country, since the revolution, as at that period. at the time, therefore, when mr. monroe wrote the letter in question, he could not possibly know the state of affairs here, or whether they would come to an amicable settlement, and it was right in him, and it would have been criminal not to have done it, to state what it was likely might be done by france in our favor in case of extremities. he would only add one further remark, as he should have occasion to defend himself more than mr. monroe, which was, that he was at least as honorable a character as any of his calumniators; that while he was in france he effected much good, and that since he came away we had experienced much injury. if gentlemen would examine the state of things when he first went to france, what our situation was when he came away, and what it is now, he thought this would appear evident. the gentleman from south carolina, doubtless, after examining all the remarks he could find of his, had brought forward a debate which took place in . to follow the gentleman would be a disagreeable task; but as it would serve to elucidate a truth which it was necessary to unfold, he should undertake it, and show that, instead of these remarks being in favor of war, they were founded in the most zealous wish for peace, mr. g. proceeded to read his remarks on mr. dayton's motion for a sequestration of british debts, which, as the mover would recollect, he said, was a mere arrestation of british debts, which was proposed as a preventive of war, by holding in our hands what was within our power, as a pledge for the good behavior of that country, in order to preserve peace. mr. g. stated the situation of things to be different from that which mr. harper had represented it to be, as the legislature had no knowledge of any negotiation being set on foot with great britain at that time. this debate took place on the th of march, when they had been informed by the president that nothing further could be done by him, and the negotiation was not heard from until the th of april following. a part of the system proposed was an embargo, and another a suspension of intercourse with great britain. this bill passed this house, but was negatived in the senate, by the casting vote of the vice president who is now the president of the united states; and if this bill had been carried into a law, the other regulation for arresting the british debts would evidently have been a proper measure. mr. g. did not believe that we stood upon such unequivocal ground with respect to france as we formerly stood upon with respect to great britain. this had long been his opinion; and though we have heavy complaints to make against france, they were not without just complaints against us, arising principally from the operation of the british treaty, that fatal instrument to the united states. mr. g. read some of the articles of the treaty, and his former remarks thereon, and denied that there was any well-founded apprehension of war at the time it was under discussion. he also noticed the assertion which had frequently been made, of the french directory receiving lessons from this country, which, he said, was too absurd to be believed. though he thought france had just ground of complaint against this country, he did not mean to justify her conduct towards us. he thought she ought to have received our ministers; and, if they had not agreed, to have taken such measures as they thought proper. but this is supposing our ministers clothed with sufficient powers; if they were not, there would be some ground of justification for their conduct. the president of the united states is in the possession of information which would satisfy the congress and the people in this respect, but he has thought proper to withhold it, and therefore he alone is responsible. there was one circumstance, he said, very unaccountable in this business. the president informed the house that he had received certain papers, and says, "i have considered these papers; i have deliberated upon them; i have not sent them to you, but require you to act upon them; i call upon you to take energetic measures, and request you will provide sufficient revenue." the house has been thus obliged to take up the subject in the dark. is this, said he, a desirable state for the legislature to be placed in? is it not rather a degraded state? he thought it was; and when party rage shall subside, and it shall be seen that the executive is pursuing hostile measures, and keeping back all information from congress, this conduct would be deemed extraordinary. he was far from saying the executive had not done what was proper. he could not say so, because he had seen no evidence upon which to form a judgment; but it left a strong impression on his mind that something was not correct, which was the reason the expected papers were not sent. he also again referred to what the president says in his late message with respect to the change of circumstances, which he still thinks he meant to apply to a change from neutrality in the country to something like war. and in these circumstances, said he, are the people of the united states to be led on from step to step, until they are irrevocably involved in war? and are the people to be told that this is a trifling question? when all the country is in commotion, and when the people are preparing their petitions for peace, (which he thought very proper,) he was not willing to proceed until the present question was decided. he would suggest another idea. he had heard a variety of observations from different quarters, that at a period not very far distant from the present, a more intimate connection between this country and great britain than at present exists, is likely to take place. and yet gentlemen are perpetually crying, what! give up your independence! do you prefer peace to independence? he would answer, no; for independence he should be ready at all times to make war. but are we, said he, called upon to fight for speculative independence, and, at the same time, willing to commit our real independence to the mercy of another nation? where, he asked, is the difference between depending upon the french or british nation? except, indeed, (as he believed was the speculative opinion of some gentlemen,) there was an intention of assimilating the british and american governments. gentlemen talked of newspapers. he would say a word on that subject. there are two papers, said he, printed in this city, which not only breathe defensive, but offensive war of the worst kind. one of these papers, he believed, was particularly countenanced by the government; the other was printed by an infamous scoundrel, a british subject--a paper which he was sorry to find too much countenanced. this paper not only breathes war, but exterminating war. and this paper issued from a british press, spreads its baneful sentiments throughout the country. he proclaimed this fact; and he should think himself a traitor to his country, not to proclaim it. mr. g. would say a few words as to the effect which the late french decree would be likely to produce upon this country. the committee had been told, by the gentleman from south carolina, that it would effectually destroy our revenue. he believed he was mistaken in this. to france and to those nations who may be supposed to be under her influence, we last year exported to the amount of $ , , , and to great britain $ , , ; two-thirds of which are re-exported to the countries above mentioned. against whom, then, are we to arm? against those who receive $ , , , for the protection of the $ , , , two-thirds of which are re-exported. how, he asked, would this operate? would the decree stop the importation of british goods? no, it might lessen them, but would not stop them, as the british would become, in some measure, their own carriers; and, as their vessels paid a higher duty in our ports than our own, it is probable our revenue would not be greatly lessened. it was possible, however, that there might be some abuse of the decree in carrying it into execution. he was as much opposed to the decree of the executive directory as any man, but not so much on account of any loss we shall sustain from it, as from its being an attack upon our neutral rights, which he preferred to money. the british treaty had authorized two acts that took place in january last, which will transfer the carrying trade from american to british vessels; but those acts will not affect our vessels going to france, spain, or holland. he supposed, therefore, that our commerce would not be very materially injured by the french decree. he did not know but it would even be upon a better footing than at present, as there would be more security for it. at any rate, no rash measures ought to be taken, until we see how the decree is to be executed. he trusted the gentleman from south carolina was, by this time, pretty well satisfied as to the inaccuracy of his statement. before gentlemen make charges of inconsistency against others, they should be sure that they themselves stand firm in that respect. that gentleman ought to have looked back upon his own conduct in and . he had been informed that that gentleman was at that time a member of an affiliated society of jacobins. [mr. harper said it was not true.] he believed, however, all the gentlemen who knew him at that time would do him the credit to say, that he was one of the most eloquent declaimers of that day in favor of the rights of man. but his inconsistency had even appeared within these two days. when the present proposition was first laid on the table, he rejoiced that there was a prospect of all uniting in manifesting a disposition for peace; but the next day he used arguments which went to the destruction of the resolution. the gentleman from massachusetts (gen. shepard) had made a remark which he must notice; it was, that he assumed to dictate to others what was proper to be done. of this he was not justly chargeable. that gentleman told the committee he was a warrior; he venerated him as such--he was a warrior in a glorious cause; but whilst he venerated him as a soldier, he had to regret the political prejudices under which he labored, which could suffer him to attribute a motive of that kind to him. the gentleman from new york (mr. brooks) had also told the committee he had also been in service in the revolution. this he did not know before he heard it from the gentleman himself. but he had since been told he was engaged in the honorable and humane employment of clothier to the army. [mr. brooks said, he had the honor of taking up arms in the defence of his country, which he carried until he was taken prisoner. he was a prisoner eighteen months, and when he was set at liberty he found his vacancy was not preserved for him. he then served his country in a different line, and he believed in a manner which entitled him to at least as much merit as he had assumed. he believed that providing the army with clothing was an essential part of the service; but, (said he, with great warmth,) if the gentleman doubts my being a soldier, i am here to answer him. a loud cry of order, and mr. b. sat down.] mr. g. said, he had received this information from one of the gentleman's friends. he made the inquiry, because he did not know what services he had performed; and he assured him the information which he had received had tended to raise, rather than to sink him in his estimation; but he was not alarmed at being told he was a soldier. it had been said of the resolution before the committee, that by stating we are not ready to resort to war against the french republic, that it might be implied we are ready to go to war with some other nation. that this idea might be done away, if gentlemen will permit the words "against the french republic" to remain. if the mover would give his consent, he should have no objection to add the words, "or any other nation." mr. harper hoped, as he had been particularly alluded to by the gentleman who had just sat down, he should not be considered as trespassing on the patience of the committee in an unreasonable manner, if he made a few remarks in reply, though he did not mean to do it generally, as he perceived others had undertaken to do that, whom he was conscious were better able to do it than himself. he was called up merely by the gentleman's personal observations. in the first place, he was charged with great indecency in bringing forward and commenting upon the gentleman's own speech. he left it to the committee to determine with what propriety this complaint came from a person who has omitted no opportunity of attributing the worst of motives, not only to gentlemen in that house, but to others out of it; neither age, character, nor absence, have preserved gentlemen from his censure; from a person who has always indulged himself in the most violent philippics against the executive of the united states, and all who concurred in his measures; from a person who, when gentlemen declare they are for peace, says he does not believe them; from a person who has continually charged all those with inconsistency who differed in opinion from him, not by examining their conduct, but by making insinuations against them as to their debts, or to the way in which they may have acquired money, or by following them to their youth, before they became members of this house? he thought the gentleman ought to attend to the old, but just adage, "he who lives in a glass house ought not to be the first to throw stones." if there could be a man more regardless than that gentleman of all the rules of decorum in debate, he had never heard him. as to the charge of inconsistency in his conduct, it had often been made in private, and as often contradicted; but as it is now brought into public view, he would say a few words on that point. it was said, that in and , he was a member of a jacobin society, and a warm declaimer in favor of the rights of man. what was said respecting his being a member of a jacobin society, is one of those falsehoods of party, which, though known to be unfounded, is still reported. the fact, mr. h. said, was this, which he never concealed: in the year , there were instituted in charleston a variety of clubs, (there were several before that time;) of many of these, being a young practitioner of the law, and desirous of extending his acquaintance; and procuring business, he was a member. among these was a society called a patriotic society. it was composed of french and american citizens; and he and seven or eight other young practitioners became members, and attended one or two evenings; but, finding it composed of persons from whose society much improvement could not be expected, they never went afterwards; and so anti-jacobinic was their conduct considered, that they merited and received an expulsion from the society. as to being a declaimer in favor of the rights of man in and , he owned he partook of that enthusiasm which at that time raged in america, because he was deceived. he then believed the french had been unjustifiably attacked, but he now found that they were the first assailants. he then believed that the treaties of pilnitz[ ] and pavia, of which they had heard so much, were realities; but he now found them contemptible forgeries. with respect to other parts of the french revolution, he then believed that the principal actors in it were virtuous patriots, but he had since discovered that they were a set of worthless scoundrels and mad-headed enthusiasts, who, in endeavoring to reduce their fallacious schemes to practice, have introduced more calamities into the world, than ages of good government will be able to cure. mr. h. said, he never was a declaimer in favor of what gentlemen meant by the rights of man. he held them and their author in merited contempt. the pretended factitious rights of man to which gentlemen referred, were the rights of a few noisy demagogues over the rights of the people. though he always believed this, he did not know it so well, in and , as he knew it in , and since. and, therefore, he was not a declaimer in favor of what the gentlemen mean by the rights of man, but he was a warm admirer of the french revolution, when he thought the object was the establishment of the true rights of man; but, since he discovered that this was neither the object nor would it be the effect, instead of viewing that revolution as a blessing to the world, which he once thought it, he now viewed it as the greatest curse that ever afflicted mankind; as a phial of wrath from heaven, the bitterest that ever was poured out upon the earth. there was a certain species of the rights of man of which he had always been the defender, in favor of which his voice would always be heard. he had, in a well-known instance, advocated the rights of his fellow-citizens in the best manner he was able, and in a manner which had obtained for him their thanks and their remembrance. how he conducted that defence, was well known to some of his colleagues in that house. mr. h. denied that he had been inconsistent with respect to the proposition before the committee. he then noticed what had fallen from mr. giles with respect to the decree of the french directory not being so inimical to this country as it had been supposed to be. mr. h. charged mr. g. with being much mistaken in supposing that only the amount of eight millions of dollars was exported to great britain and her dominions, or that thirty-six millions of dollars were exported to france, and to countries connected with her. out of the fifty-one millions exported from this country during last year, it appeared by the statement before them that eight millions five hundred thousand were sent to great britain; nine millions to the hanse towns; to france and her dominions eleven millions. but, he asked if the gentleman from virginia knew the reason why this amount to france appeared so large? if not, he would tell him. all the produce shipped for the british west indies in , was almost constantly cleared out for french ports, in order to avoid the effects of the plundering decrees of the french west indies, and this was the reason why six or seven millions appeared under this head, which ought to appear under another. but the gentleman seemed to suppose that all which did not go to great britain went to france, and countries connected with her. at least twenty millions, out of fifty-one millions, went to countries over whom france had no power; and, when to these were added what was sent to great britain, and six or seven millions were deducted on the ground he had mentioned, the gentleman would find the balance was not very considerable. mr. h. said he should not notice what the gentleman had chosen to say respecting the british minister, except as to the improper manner in which he had called a confidential person a confidential agent of the minister, and to say that he could not see any analogy between this case and that of the french minister, who fitted out privateers and levied troops in our country without permission from the president of the united states. the gentleman from virginia had entered fully, not only into a justification of himself, but of his friends. how far he has acquitted himself and them from the weighty charges which he had exhibited, he was not the proper person to judge; he left the public to determine. he must, however, beg leave to correct him in one of his facts. he informed the committee that the letter of mr. monroe, which had been quoted, was written in december, , whereas it was dated paris, september , , long after that minister had been officially informed by our minister in london, that the british treaty was concluded and signed; yet this letter recommends the taking of the posts, the invasion of canada, and the cutting up of the british commerce by privateers. he did not say that this letter was a proof of conspiracy, but of a system of policy which was very contrary to a peace system. but the gentleman says, he (mr. g.) never proposed war against great britain. he knew it. the gentleman always spoke of peace, but pursued measures which led to war. he did not speak of war when he recommended sequestrations, confiscations, &c., because he loved peace. he did not talk of war; but, whilst he and his friends opposed measures of defence, they were in favor of every measure which led to war. while they were irritating a nation to war, they opposed the building of the frigates. he could not say what were the views of gentlemen in doing this, but he would say what appearance it had on his mind, when he was far removed from the seat of government. he thought it seemed as if gentlemen believed it would be well to get to war, and then rely upon their favorite nation for support. mr. brooks again complained of the insinuation which mr. giles had thrown out against him, which he said was not called for by any circumstances under consideration. mr. giles assured him he mentioned the fact alluded to, out of no disrespect to him. with respect to the date of mr. monroe's letter, he had been deceived by a leaf being folded down at the letter, the date of which he had mentioned. the gentleman had said that he had attributed improper motives to the president of the united states. this he denied. he had said, he took measures which he did not approve, and he hoped a difference of opinion from any man would not be imputed to him as a crime. with respect to the explanation which the gentleman had given of his own conduct, he was glad to hear it. it was to obtain this explanation, that he mentioned the reports which he had heard. mr. g. renewed the assertion, that he and his friends always had been willing to put the nation in a state of defence. as to the frigates, he gloried in his vote against them; but with respect to the use of them, the gentleman was mistaken. they were intended to be sent against the algerines only. friday, march . _relations with france._ mr. allen observed, that when the president of the united states sent his first message to the house, announcing the receipt of despatches from our commissioners in paris, he stated that it would take some time to decipher the despatches which he had received. some days afterwards, on the th instant, he sent another message informing the house, "that it was incumbent on him to declare that he saw no ground of expectation that the object of their mission could be accomplished on terms compatible with the safety, honor, or the essential interests of the nation." it had been observed, in the course of the debate in the committee of the whole on the state of the union, and not in the most candid and proper manner, that the papers received from our commissioners ought to have been laid before the house, and the president had been charged with withholding them. he supposed gentlemen would have been satisfied, and he was, with the information which the president had already communicated, that our commissioners are not received, and that france refuses to hear us. but, though he was himself satisfied with the information he had at present, he believed there were many gentlemen in the house who wished for more, because there is a paper printed in this city, which is continually insinuating that there is something in these despatches which, if they were made known, would show that the conduct of the executive has been improper; because he found that paper often speaking the language of gentlemen in this house, and which spoke it, he believed, on this occasion; and because, if this is not true, he wished the people to be undeceived; or if true, that he and those who thought with him, that no such blame existed, might be convinced of their error; he proposed the following resolution, to which he hoped there would be no objection: "_resolved_, that the president of the united states be requested to communicate to this house the despatches from the envoys extraordinary of the united states to the french republic, mentioned in his message of the th instant, _or such parts thereof as considerations of public safety and interest_, _in his opinion_, _may permit_." mr. s. smith said, he should have no objection to the resolution, if the latter part of it was struck out. if the president thought it necessary that any part of the correspondence ought to be kept secret, he would, as is usual in such cases, inform the house that this was the case, and the galleries would accordingly be cleared. the communication would then probably be referred to a select committee, and such parts of it published as might appear proper. mr. allen observed, that there might be parts of this correspondence which it would not be proper to communicate to this house, even confidentially. if this was not the case, the president could still communicate such part of the correspondence in confidence as he may think proper. he wished to leave the president to act according to his discretion. without some portion of this discretion being allowed him, the government could not proceed. mr. giles said, no part of the correspondence ought to be kept from congress. he was not himself satisfied as to the sincerity of the proceedings of the executive of the united states towards france; he wished, therefore, not only to have the correspondence of our ministers, but the instructions which were given to them. mr. g. defended what he had yesterday said about the president and these papers, and hoped if the house called for the papers at all, they would call for all the papers, and the instructions upon which our ministers acted. mr. livingston moved to amend the resolution by striking out all the words after the th instant, and insert after the words "this house," "the instructions to and." this was not a time, mr. l. said, to stand upon trifling punctilios, which might be proper upon ordinary occasions. they were now called upon to say whether the country should be preserved in peace or go to war; yet the correspondence, which ought to convince the house of the propriety of acting in this or that way, is withheld. how could they say to their constituents, without this information, all has been done that could be done to preserve the country in peace, but war was inevitable? and if war is rushed into headlong, without due consideration, and consequently without ascertaining whether it is just or not, can it be expected that the wishes and aids of the people will be heartily engaged in such a war? they certainly would not. it would be no answer to say that our negotiation with a foreign power would by this means be exposed. the communication might be made with closed doors, and no one could suppose any thing would be exposed by the members of the legislature which the good of the country requires to be kept secret. but gentlemen wish this house to repose the strictest confidence in one branch of the government, at the same time that they say no confidence can be placed in the integrity of this house. [mr. allen exclaimed, who said it?] mr. l. replied, that this was a fair inference from what had been said. the latter part of the resolution proposed to transfer a right to the president, which it ought itself to exercise, as to judging of what it was proper to publish in consideration of the public safety and interest. if this power was given to the president, he might withhold such parts of the papers as might prevent a correct judgment being formed upon them. he was not himself disposed to cede to the president the right which he was sent there to exercise for his constituents, of judging of so important a question, as a question of peace or war. he could not basely surrender this right. if the papers were called for at all, he hoped the whole would be called for, in order that the house might form that sound and temperate judgment for which the present crisis so loudly calls, and for which the people of the united states so anxiously look. indeed, to pass the resolution unamended, would, in his opinion, be a shameful dereliction of their rights. mr. bayard thought the propriety of this call upon the president was extremely doubtful, and, as it regarded the instructions given to our ministers, wholly improper. with respect to the communication of the despatches, it was wholly a matter of executive discretion to judge whether it would be proper to communicate them or not. he was one of those who had so much confidence in the executive, as to trust to his candor, understanding, and integrity, to determine upon the propriety of what he should send to, or withhold from, this house. at a time when it is not known that our negotiation with france is closed, it would be extremely imprudent to have the instructions of our ministers laid before this house; as what was sent here, notwithstanding any vote of secrecy, would not long be kept secret. it would soon be in europe, and might do us essential injury, by disclosing our ultimatum to france, and by showing it also to the world. it was in vain, mr. b. said, to suppose that one hundred men could keep a secret for any length of time, however important it might be. to elucidate that assertion, he referred to the divulging the secret of the british treaty by a senator. but the gentleman from virginia (mr. giles) has no confidence in the government of this country with respect to its negotiation with france; and in order to try the sincerity of the executive, he wishes for the papers. does the gentleman by this mean to give the lie to the executive? because in his message he has told the house that he has given power to our ministers to settle our disputes with the french republic, and to "make all reasonable concessions." what more does the gentleman wish? does he wish unreasonable concessions to be made? surely he does not. did any thing appear in the conduct of the french directory to show that our ministers were not possessed of ample powers? no; the directory never knew any thing about their powers, at least so far as any official communications had been received on the subject. there could not, therefore, be any ground upon which the gentleman could rest his suspicions. he hoped, therefore, the amendment would be negatived. two or three gentlemen were on the floor together. the speaker said, the amendment to insert "the instructions to and," would come first under consideration. mr. harper said, he did not mean at this time to enter into the merits of the present question. it was important, and presented itself in a new light to the house. the original motion he was ready to have voted for; he did not know whether he might not vote for this. but he wished time to consider of it. he therefore moved the further consideration of this question be postponed till monday. mr. allen had no objection to the postponement, except the mover of the amendment would permit it to be amended by a modification of this sort: "such parts of those communications as were communicated to the french government." the question for postponement was put and carried-- to . monday, april . the speaker attended to-day, and took the chair. _stephen cantrill._ on motion of mr. w. c. claiborne, the house resolved itself into a committee of the whole on the report of the secretary of war on the petition of stephen cantrill; and the report and papers accompanying it were read. the report was as follows: "the secretary of war, to whom was referred the petition of stephen cantrill, respectfully reports: that the services for which the petitioner prays compensation to himself and a company which he commanded, were performed in the month of september, , on an expedition conducted by major james orr, into the lower cherokee country, which issued in the destruction of two considerable indian towns, the running water and nickajack, the killing of a number of indians, and the taking about twenty prisoners. "that the report of major orr to governor blount, dated at knoxville, the th september, , shows, that this expedition marched on the th of the same month, and was ordered by general robertson, of mero district. "that the orders of general robertson for this purpose were afterwards communicated by himself to gov. blount, in a letter dated the th october, , detailing his reasons for the order. "that letters from governor blount to the secretary of war, dated the d of september and d of october, , as well as the copy of an order, which he states to have been the last given by him to general robertson, previous to this expedition, evince that the governor did not sanction the measure. "that the secretary of war, previous to major orr's expedition, in a letter to governor blount, dated the th july, , strongly discouraged the idea of destroying the lower towns of the cherokees, in the following words, viz: 'with respect to destroying the lower towns, however rigorous such a measure might be, or whatever good consequences might result from it, i am instructed specially by the president to say, that he does not conceive himself authorized to direct any such measure, more especially as the whole subject was before the last session of congress, who did not think proper to authorize or direct offensive operations.' and that as soon as the destruction of the running water and nickajack was communicated to him, the secretary strongly disavowed any participation in the business, by his letter to governor blount, dated the d of december, , in these words, viz: 'the destruction of the lower cherokee towns stands upon its own footing; that it was not authorized is certain.' "that the president at all times, as well before as after this expedition, endeavored to confine the protection of the frontier of the south-western territory to defensive operations, and to restrain from those which were offensive. "that, on the whole, it appears, the services for which compensation is prayed by the petition of stephen cantrill, were performed on an expedition, offensive, unauthorized, and in direct violation of the orders from the president to governor blount, by whom also they were not sanctioned. "the documents referred to, and others connected with the subject, are herewith presented, numbered from no. to , inclusive. "all which is respectfully submitted to the house of representatives. "james mchenry. "war office, _april, _." the reading being finished, mr. w. c. claiborne said, that, in his opinion, this claim was founded on the principles of justice; and he trusted every member who had attended to the reading of the documents, must accord with him in opinion, that the nickajack expedition, undertaken by major james orr, in , into the lower cherokee country, was authorized by general robertson; and it remains now to be decided, whether soldiers shall not be entitled to pay until they have previously assured themselves of the legitimate authority of their commanding officer. at the time when this expedition was set on foot, a war raged between the united states and the cherokee nation of indians, the horrors of which bore hard upon the district of mero; the very existence of the settlement was threatened; scarcely a day passed without some one or other of the inhabitants, or of their acquaintance, being murdered. information was received that the indians were embodied in order to carry the war into the settlement. what was the general to do? was he to stand still without making any attempt to avert the danger? the safety of the people required him to act, and he struck the first blow, which was a defensive measure authorized by the usage of all nations. the citizens on this expedition obeyed the command of their officer; they did not think it necessary to inquire by what authority he acted; all for them to be assured of was, that he was an officer of the united states, and this they well knew, as this was not the first time they had served under him. without a discipline of this kind no military operation could be carried on. general robertson acted also under the authority of governor blount, who acted under the orders of the president of the united states. having then performed this duty--a duty, too, which put an end to a war which might have cost the united states a million of dollars--he trusted the petitioners would be compensated for their services. the amount, he believed, would not be more than about $ , , as the party was out only twelve days. to effect this purpose, he proposed the following resolution for the adoption of the committee: "_resolved_, that the proper officers be directed to settle the accounts of the militia who served on the expedition commanded by major james orr against the cherokee indians, in the year ." this resolution was agreed to without opposition. the committee rose, and after some few observations, it was agreed to in the house, and a committee appointed to report a bill accordingly. tuesday, april . mr. w. c. c. claiborne, from the committee appointed, reported a bill directing the payment of a detachment of militia, for services performed in the year , under major james orr, which was twice read and committed. _provisional army._ a bill from the senate, authorizing the president of the united states to raise a provisional army of , men, was read the first time; and upon motion made to read it a second time, mr. nicholas objected to the second reading of the bill, as he believed it possessed a principle which could not be assented to. he did not believe it was necessary to pass a bill of this sort under any possible modification. the highest act of legislative power was, by it, proposed to be transferred to the executive, viz: the power to raise an army, which he was to exercise at his pleasure. if an army was necessary, the legislature ought to raise it; but he did not think it was necessary at present. indeed, when discussing the bill for providing a naval armament, gentlemen had said that members had been willing to make preparations for defence on the land, where there was no danger, but were unwilling to do it at sea, where the greatest might be expected. he did not believe there could be any necessity for going into a measure of this kind at the present session. in case of predatory attack, the militia would be equal to repelling them. mr. n. said he lived in a part of the country perhaps more defenceless than any other; but, so far as he or his constituents were concerned, he did not wish for a force of this kind. he was willing to confide for defence on the militia of the country. mr. otis thought it very extraordinary that the gentleman from virginia should endeavor to surprise a part of this house into a decision upon this bill in this stage of it. he hoped he would consent to its taking the usual course. the gentleman had gone into the merits of the bill; he could not follow him, because he had not heard it read; so far as he did hear it, he was of opinion that the gentleman had anticipated objections which did not lie against it. he seemed to suppose that this bill declared that a standing army should be raised. it does no such thing; it only declares that if existing circumstances shall make it necessary, then the president shall raise an army not exceeding a certain number of men. it may happen that the necessity may not exist; but the gentleman from virginia must be able to fathom the intentions of france further than he could pretend to do, if he could say that no such necessity would exist. if what was said by the agents of that government to our envoys could be relied on, there was a direct threat to ravage our coasts. he hoped, however, no invasion would take place; but, when he said this, he calculated upon the french acting as reasonable beings, but perhaps he calculated delusively. indeed, they are now threatening the invasion of a country, where one may suppose they would have as little chance of succeeding as in this country; and was the idea, then, to be so much scoffed at, as not to suffer a bill, intending to provide against it, to be read a second time? if the arms of our citizens were to be tied up, and our militia were many of them without arms, with what should we oppose such an attempt, if it were made? what, said he, is to prevent victor hugues sending over two or three frigates? it had been said that he expected open war, and that he was ready for it. in short, he thought it would be the most disgraceful conduct that ever was attempted in that house, if the bill should be rejected without a second reading. it would be in vain to talk of unanimity, if a bill from the senate was to be treated in this way. if the gentleman persisted in his motion, he trusted he would find himself nearly alone. mr. gallatin wondered that the gentleman from massachusetts should be so greatly surprised at a motion of this kind, because if he had attended to the rules of the house, he would have found that it was a course expressly prescribed by them. it had been acted upon before during this session. the principle, he said, was well understood. when a member disapproves of the principle of a bill altogether, and does not wish to go at all into a discussion of the detail, he moves to reject it before it goes to a second reading. this bill goes to authorize the president to raise an army. he did not know what was meant by a provisional army. he did not find any thing said in the constitution of the united states relative to provisional armies, or of giving the president power to raise armies. he found mentioned there no other kind of defence than an army and militia. it says congress shall raise and support an army, not provide for the raising of an army; but this bill is to enable the president of the united states to raise an army. the constitution has declared that the raising of an army is placed in congress, but this bill goes to declare that this power shall be vested by law in the president. that is the principle of the bill: and if congress were once to admit the principle that they have a right to vest in the president powers placed in their hands by the constitution, that instrument would become a piece of blank paper. if it were to be admitted in one case, it would be admitted in another; and, if admitted in one department, it might be admitted in another. the power to raise taxes, he said, is contained in the same article of the constitution which says congress shall raise armies. and if they could delegate the power of raising an army to the president, why not do the same with respect to the power of raising taxes? he supposed the house would next hear of provisional taxes, to be raised if the president shall think fit. mr. g., therefore, thought the principle inadmissible. if the circumstances of the union required an army, let it be raised; if not, he wished to give no power to raise it--especially, as the president, if he saw necessity, could call congress together, if he should find that the circumstances of the country required it. mr. g. thought the house had already decided that no additional army was necessary at present, in agreeing to an additional regiment of artillery; as the select committee, when they brought in that bill, had the report of the secretary of war before them, which stated, besides the regiment of artillery, that other additional force would be necessary; and having reported no other, it was to be supposed they thought no other necessary. but, if it was thought the house had not gone far enough, he was willing to go farther, but not willing to transfer their power to judge of the propriety of raising an army. mr. dana hoped this bill would not be rejected on its first reading. it required no labored arguments to prove that the motion might be made; but more than had been adduced to show that it ought to be adopted. he thought the gentleman from massachusetts ought not to have been surprised at this motion, because it was best calculated for exciting alarm. it was said the senate proceeded in a similar way on the bill sent up from this house for a repeal of the stamp act; but that question had already been agreed upon in the senate on a distinct proposition, and there was, therefore, no necessity for going again into it. the gentleman from pennsylvania had said that when the house agreed upon an additional regiment of artillery, they negatively decided against any other standing force. the gentleman might put what construction he pleased upon that vote, he could assure him for himself that he had no such idea when he voted. this bill, mr. d. said, provided for the raising of a regular force, in case the president shall think the situation of the country requires it. he is also authorized to accept of the services of the volunteer corps. the bill could be amended in any manner which gentlemen thought proper. but the gentleman from pennsylvania does not know what a provisional army means. he believed this was no new principle. he believed it was acted upon when the three additional regiments were raised to the then existing corps. it was in principle the same as when an army is directed to be raised, but where the president has power given him to suspend the raising of it, if he shall see it necessary. mr. sewall said that, though the present motion be not irregular in point of form, yet it is a manner of proceeding very objectionable at this time. his colleague had complained of this motion being a surprise upon the house. he had good reason so to consider it. and the house will consider whether it is expedient, without entering into a consideration of the bill, without seeing whether any alteration could be made in it, so as to render it more agreeable to gentlemen, thus to attempt to destroy the bill. what was the motive of the gentleman from virginia in making the motion might easily be discovered. he had obtained leave of absence, which might have a tendency to hurry him in his political course. he wished to be heard on this subject, but this hurry of his to return home ought not to hurry the house in its proceedings. those gentlemen who had determined to take this course had the advantage of others who were unprepared for such a motion. mr. harper believed, notwithstanding what had been advanced by the gentleman from pennsylvania, (mr. gallatin,) that this was a very unprecedented measure; because however prepared the house may be on some occasions, at the first blush of business, to decide upon the abstract principle, yet it was perfectly novel in their proceedings to reject a bill on its first reading, which contains such a variety of propositions, and which is capable of such a variety of modifications as the present. it was also as little consonant with the present situation of the country as it was with their usual modes of proceeding. the allusion to the decision on the bill for repealing the stamp act (as had been shown) was no way applicable. he could see no other view in a proposition of this kind but a determination to resist every measure for the defence of the country. if the intention had not been to destroy the bill, it would have been suffered to have taken its usual course, and attempts would have been made to amend it. if a provisional army was not liked, gentlemen might have had the army immediately raised; or, if , men were too many, fewer might have been proposed. if gentlemen did not think the army immediately necessary, and did not choose to leave it with the president to judge of that necessity, they might make it to depend upon a declaration of war by france, on an invasion, or in case victor hugues were to bring his troops, or send his threatened frigates against us, or if an insurrection should be excited by our enemy, then the president should be empowered to raise an army. but gentlemen say this bill ought to be rejected, because it is unconstitutional. could gentlemen be serious in making this objection? were troops ever raised in a different manner? and if they had the power to authorize the president to raise troops immediately, they could certainly do it under such contingencies as they thought proper. did not congress intrust the president with the discretionary power of borrowing money, of, in some cases, fixing salaries, &c., which powers were equally vested in them with the power of raising armies; and this must be the case, except gentlemen insist that congress should itself do all the acts committed to it; and if so, they must always be in session. but the gentleman from pennsylvania says, that if this power be delegated to the president, congress may as well intrust the president with the power of raising provisional taxes. he had no hesitation in saying, that he believed this might be done; that the house might determine upon a tax, and authorize the collecting of it, only in case the president should find it necessary, or in case a certain event should take place. with respect, then, to the expediency of the measure--he did not speak of the expediency of raising , men, because any other number might be determined upon--but as to the thing itself. what is the internal and external state of this country? do we not know that the enemy has in view a plan upon which they place great reliance--of gaining over to their cause a certain class of men, who abound in the southern part of this country, and by whose means they intend to subjugate or destroy the country? we do know this--gentlemen from the southern states know it; yet they say it is impossible to raise any regular force to repel the enemy. he could not believe, that when we had to meet an enemy, who has always fought by means of domestic insurrection, who is now subverting the most ancient governments in the world by these means, it would be consistent with any maxim of common sense to be unprepared for the worst. what, said he, is our external situation? do we not see the nation with whom we are at variance find quarrels with every country who is not strong enough to resist her? does she not injure us on every side? do we not hear of depredatory threats, and the mischiefs she has the power of doing us, urged as reasons why we should submit to her? and yet, after being told of these designs, shall we sit with our arms folded, and make no defence? for the measures already taken will be nothing without this. fortifications would be nothing except supported by a sufficient number of infantry and cavalry. what, he asked, is the situation of the west indies? were they not told that victor hugues, with , of his best troops, is ready to make a blow upon the southern country, whenever the word of command shall be given? they knew that these troops existed; they had been seen, and the desperate character of their leader was also known. yet, with this enemy upon our threshold, within four or five days' sail of us, we still fold our arms, and say we will make no defence. when he reflected upon these things, he could not help deploring that fatal blindness, that stubborn spirit of opposition, in certain gentlemen, which could hide from their view the danger of our present situation; that, at a period when the veil is rending from before the eyes of the community; when those who have been the most blind out-of-doors begin to see, that those gentlemen in this house, who, from their ancient birth and fortunes, might be supposed to possess the true american spirit, should still persist in their blind, their destructive course, was greatly to be lamented. and though he could not doubt the fate of this bill, yet that there should be a few men found supporting measures which tend directly to the destruction of the country, he could not help lamenting. mr. baldwin did not agree with the gentleman who had just sat down, that the present motion was either unprecedented or improper. when it is proposed to make a law on any subject, it presents itself to discussion on two grounds, the principles of the law and the details. the proper stages to debate the general principle on which the law is to be founded, by the rules of this house, are, when it is proposed to introduce the law, and at the third reading, when it is considered as finished, and on its passage; the intermediate stages of the discussion are all supposed to be employed to settle and adjust the detail. he had often regretted that members, having been accustomed to different modes of proceeding in their state legislatures, were so apt to disturb and keep unsettled their modes of proceeding in this house. he knew it was sometimes a practice, after a bill had been read the second time, and was referred to be shaped and formed by free discussion in committee of the whole, a member would rise to amend the bill by striking out the first section, declaring, at the same time, that he made the motion for the purpose of destroying the bill--a mere law fiction, under color of detail and amendment, to contest the original principle and destroy the bill. without doubt the commencement of the business is the regular stage to contest the principle. if it originates in this house, it is on a motion in committee of the whole, expressing in general terms the expediency that such a law should be provided; if it comes from the senate, the same question presents itself after the first reading, in the words of the present motion, which are the very words prescribed by the stated rule of the house. if on this question the majority of the house appear in favor of the principle of the bill, it goes on through the stages of its detail and formation, and at the third reading the general question occurs again, shall the principle, detailed as it now appears, pass into a law? he was sure no member could object to the fairness and propriety of the present motion. as to the principle of the bill, he must say, it did not meet his approbation. if the house is convinced it is necessary to raise an army of twenty thousand men, as the bill now proposes, they ought to say so at once, and let it be done; if they are not convinced that it is necessary, the law ought not to pass, the army ought not to be raised till they are convinced it is necessary. the constitution made the legislature the sole judge on this subject. the present bill says it is not necessary to raise this army now, but perhaps it may be before congress meets again, it therefore proposes to transfer the right of judging on this subject to the executive; he thought it a very improper transfer of legislative power. it has been said that all our troops are raised thus provisionally. if attention is paid to those laws, it will be seen that they did not pass till the legislature was convinced that circumstances then required the troops to be raised; a clause is added, that if circumstances should alter so as to make the troops unnecessary, the president might forbear to raise, or discharge them; it gives him power to disband the army, but not to raise one. mr. rutledge said, as the principal objection against this bill seemed to arise from an idea that the militia would be found sufficient for every purpose of defence for this country, he thought gentlemen had better concur in letting the bill go to a second reading and be committed, and before it again came under consideration, the militia bill would probably have been determined upon. he was pleased to hear gentlemen say that the country must be defended, and if an effective militia could not be had, it must be done by a force of this kind. for his own part, from the proceedings already had upon the militia bill, he had not much to hope of its passing; and if not, gentlemen would certainly see the necessity of some additional standing force. mr. r. could not conceive what objections could have been induced by the gentleman from pennsylvania (as he was not in the house when he spoke) on a constitutional ground. mr. r. adduced, as in point, the law enabling the president to call out troops in consequence of the western insurrection, and that making provision for the effectual protection of the frontiers of the united states. mr. r. then mentioned his expectation of despatches being received from our ministers in paris in the course of twelve hours (a particular mention of which has already been made) which might convince all of the propriety of going into this measure; for he believed it was the wish of all to defend the country with vigor and effect, and that they only differed as to the means of doing it. mr. mcdowell was in favor of the motion for rejecting the bill, as it contained two principles which he thought inadmissible; the first, because it delegated legislative power to the president; the other, as it respects volunteer corps. the first, he believed, would be unconstitutional, and the last would go to the destruction of the militia of the united states. if our situation be such as it had been figured to the committee by the gentleman from south carolina, they ought to turn their attention to it, and create an army themselves, and not direct the president to do it if he shall judge proper. but if there be no real appearance of danger, but it is merely conjectural, then it is not necessary to act. gentlemen have talked of members folding their arms and doing nothing for the defence of the united states. it must be recollected that we have gone considerable lengths in measures of defence. we have voted large sums for the frigates, for fortifications, for an additional regiment of artillery, and put in requisition , militia. if gentlemen can show that these measures, with our former establishment, are not sufficient for our present situation, he was ready to go further, but he was not willing to delegate any power lodged with that house to another branch of the government. it was well known, mr. mcd. said, that it had been the wish of the late president, that it was also the wish of the present president, of the heads of departments, and many members of congress, to increase our military establishment, and to fix a standing army in this country. it has heretofore, however, been opposed with success, except in time of war. if we were to be involved in war, an army must be resorted to in aid of the militia; but, in the first instance, the militia might be depended upon as a sure and safe defence of this country. he was sure they would be equal to any invasion, and if we were to engage in a lengthy and formidable war, we must provide accordingly. mr. s. smith hoped this motion would be withdrawn. at a time like the present, when the people of the united states are looking up to congress in expectation of their taking effectual measures of defence against what they think not only a possible, but probable event, he wished nothing to appear like indifference to that object. he agreed with the gentleman from south carolina (mr. harper) that if gentlemen did not like the bill, it might be amended; but to reject it altogether would have too much the appearance of indifference to the defence of the country. he did not know that this would be the best and most effectual mode of defence; he thought a better might be established, but he had not made up his mind upon it. he would, however, throw out an idea or two for the consideration of the committee. last session, eighty thousand man were ordered to be held in requisition. he thought if the president was to draw out twenty thousand of these for three months, and when their time expired, to draw out twenty thousand more, and so on, till the whole had been out, it might afford a sufficient protection, and more speedily than any other, and it would have the good effect of making eighty thousand soldiers. in addition to this, there might be a provision authorizing the president to receive volunteer corps of cavalry from the southern states, to be commanded by their own officers, to serve in a manner as shall be directed by law, the equipments for which to be furnished by the united states, which would be more effectual than a general law to raise three or four thousand cavalry. mr. macon said, that some of the arguments used on this occasion were of an extraordinary nature. the motion was first said to be contrary to rule, and then unprecedented. it must certainly be allowed to be as proper to debate a bill on its first reading, as to refuse to refer a resolution. the fact was, that motions of this kind were made every session. it was said to be a surprise upon gentlemen; this could not be the case, if they had done their duty, as it had lain on their desks for some time. one reason, with him, for wishing the bill to be rejected in this stage was, that he was desirous of bringing the session to a close. it was wonderful that gentlemen should persist in bringing standing troops into the southern states against their will. if members from that quarter were of opinion that their militia was sufficient defence, why will gentlemen be so over civil as to force troops upon them? it was a little extraordinary that gentlemen most in favor of this bill are the most opposed to the plan for newly organizing the militia. [mr. dana doubted the fact.] it was said that, because gentlemen are opposed to this bill, they are opposed to all measures of defence. the fact was otherwise; they wished only to avoid unnecessary expense. if they were to bring forward a proposition for raising one hundred thousand or two hundred thousand men, and it was opposed, they might say the same thing. he supposed every man wished to defend his country. he had only heard one reason in favor of committing the bill, and that was, that it was probable we might shortly hear from our commissioners. if there was any certainty in that, it might be ground for delaying a decision. mr. gallatin could not conceive why it should be insinuated that there was any thing unfair in making opposition to this bill on its first reading; for, if gentlemen were not ready to vote against the bill, they would, of course, vote for committing it, so that the opposition would have less chance of succeeding now than in the future stages of the bill. in the meanwhile, he wished to take every opportunity of endeavoring to destroy the bill. if a majority could be got against it on the first reading, so much the better, as it would prevent a loss of time in future discussion. he was not, however, afraid of discussion; he believed, the more it was discussed, the more the committee would be convinced of the impropriety of passing this bill. he did not believe, as had been supposed, that it was capable of amendment in any of its essential parts. it had been said, that a contingency might be mentioned; or a time fixed, at the expiration of which, the army might be raised. such a bill would, however, be altogether different, as this bill vested the power of judging of the proper time with the president; nor could he see how it was susceptible of the amendments suggested by the gentleman from maryland. if he thought it was, he would certainly agree to its being committed, as he perfectly concurred in the plan he mentioned; but such a system would be so different from the present, that it would be a much shorter and better course to reject this bill, and originate a new one. he thought a bill of this kind was sufficient to alarm the house, and that it ought to be opposed in every stage, notwithstanding what was said about the danger of the country; indeed that danger was what strengthened his opposition to the bill; for, if our danger be, as it is represented, likely to come from victor hugues and his troops, from an insurrection of the negroes, from disaffected persons, from our enemy being at the door, it is the duty of congress to raise an army themselves, and not to give the president the power of doing it; but if it is not believed that this representation of danger rests upon any specific ground, but that it is merely imaginary, then there is no necessity for giving the president the power, as he can call congress together whenever he thinks proper. if the danger of invasion was great, he should not hesitate to raise an army, without waiting until the event took place. he thought, therefore, the gentleman from south carolina was not right to say that the opposition to this bill arose from a determined opposition to every thing like defensive measures. mr. g. said it was true he did not apprehend all the dangers which that gentleman had spoken of; but, if they really did exist, he had a much greater reliance upon the militia of the country for defence than that gentleman seemed to have. he knew that though in some states they were not either well disciplined or well armed, yet they were organized, and had their officers, and the states being in possession of arms, they would be a much more effectual defence, and sooner brought together than any other force. he did not believe that giving the president the power to raise , men would be so effectual as the calling out of , militia, as the one could be raised immediately, and the raising of the other would be doubtful. besides, in proportion as the danger exists, it would be better to call upon the people themselves to defend their country, than upon hired troops. if any danger was to be apprehended from the negroes, they would be best suppressed by the people in the states where they are. a militia is every where; whereas a standing army may be very distant from any attack which may take place. a standing army in virginia, for instance, would do little good against insurgents in south carolina; and if an insurrection of that kind was not immediately suppressed by the people, the mischief would be incalculable. mr. rutledge thought it necessary, as the gentleman from virginia had withdrawn his opposition to the commitment of the bill from what had fallen from him with respect to the probability of despatches being shortly received from our ministers, to state upon what ground he had said this. [mr. r. then mentioned the arrival of the _pomona_ at baltimore.] mr. mcdowell did not think the information given by the gentleman from south carolina (mr. rutledge) ought to put off the decision of the question which had been under consideration. wednesday, april . _provisional army._ the speaker having declared the question on the bill from the senate for the raising of a provisional army, viz: "shall this bill be rejected?" to be first in order before the house, mr. mcdowell said, upon further consideration, and conceiving that gentlemen might wish to see the contents of the despatches of our ministers, which had been mentioned, before they gave their vote on this occasion, he should withdraw his opposition to the second reading of the bill. the bill was then read a second time; and a motion being made to commit it to the committee of the whole on the state of the union, mr. lyon called for the yeas and nays; but only himself and another member rising in support of the motion, it was not carried. the bill was then referred. _department of the navy._ mr. harper called for the order of the day on the bill for establishing an executive department, to be denominated _the department of the navy_. the house accordingly went into a committee of the whole on this bill, and rose without making any amendment in the bill; but, upon the question, in the house, of its passing to a third reading, mr. gallatin said, he had not proposed any amendment to this bill in the committee of the whole, because, what he had to say upon it, would go against the principle of the bill. he did not think it necessary to establish a navy department. he did not suppose our army and navy were at present so large as to require two separate departments. if the business was so much increased as that the persons at present employed could not do it, they might be increased. nor did he believe, with some gentlemen, that such an institution would produce economy; on the contrary, he always found that the increase of officers was the increase of expense. some time ago, it was said that great economy would arise from appointing a purveyor of supplies; but he had seen, from the time of this establishment, a great and constant increase of expense, in every thing which relates to supplies. not seeing the necessity of it, therefore, he should vote against it, except good reason should be given for it; for he believed, the moment a department of this kind was established, the head of it would wish to make it of as great importance as possible, by endeavors to extend the object of his superintendence. he called for the yeas and nays upon the question, which were agreed to be taken. mr. j. williams did not feel disposed to vote for this bill. it appeared to him that the secretary of war, with officers under him, would be sufficient for the management of our naval concerns also. it was some time after the constitution was framed before the war department was established. whenever an office was established, something was always found for it to do. soon after the war department was established we had an indian war; and after that indian war ceased, another establishment was made under the name of the accountant's office. if the business was increased, new clerks might be employed, but he should be against any new department. if we were engaged in hostilities, and our naval power of course increased, such an establishment might be necessary; but at present he did not think it necessary, nor did he think our revenue equal to the support of a navy which should require such an establishment to take care of it. if this office was to superintend the construction of vessels, persons acquainted with this business might be employed under the secretary of war. the present expense of the war department was $ , a year; and though there would not be much to do in this new office, he supposed the expense would not be much less; and, besides, congress would be importuned, from session to session, to increase our naval force. mr. w. said he was desirous of making every defence for our country, yet he wished to keep down our expenses as much as possible. if circumstances called for going further into the business of the navy, he should not object to it. mr. sewall said, when the house was considering any subject relative to the increase of the navy, complaints were made of the enormous expenses and of the little responsibility which attends the business; and when it has been said that the greatness of the expense might have arisen from a want of knowledge in the persons who had the care of the business, it was said that defect ought to be remedied. this department is intended to do that, and, by the expense of a few hundred dollars, he had no doubt thousands would be saved. when talking about vessels, it was complained that too great an expense was incurred on this object; now it is said there is no object for the proposed officer to attend to. but the gentleman from new york (mr. williams) was afraid, if this office was established, it would be the means of increasing the navy. this certainly could not be done, contrary to the will of congress. he thought there were obvious reasons for the establishment of this department. it was well known that an officer might be well acquainted with the business of the army, without knowing any thing about a navy; and a man employed at the head of such a department ought to have some knowledge of the business committed to his care. mr. s. said, however well the present secretary of war might be acquainted with army concerns, he believed he was not conversant with naval matters. in consequence of this, he had a number of agents employed under him. indeed, the war department had so much business on its hands, as not to be able to pay a sufficient attention to our naval establishment. he therefore believed it was necessary to make this new establishment, especially as the navy department was likely to be considerably augmented. mr. s. smith believed, after all the struggles which had been made on this subject, it would at length be found necessary for the united states seriously to turn their attention to the establishment of an efficient naval force; and the sooner gentlemen could bring their minds to this, the better it would be for the general good. if this proposition had been brought forward at the commencement of the session, he should have thought it unnecessary; but, from the increase which had been made during this session, he thought the establishment proper. $ , had been appropriated for providing twelve vessels; a number of galleys were also contemplated. a ship of war or schooner, it appears, has been built on the lakes, and some galleys on the rivers. these, with the frigates and cutters, form an establishment which will require a naval man to superintend it. an expenditure of two millions of dollars, he supposed, would be authorized this session; and a man knowing something of naval architecture will be able to save more, in the course of this year, to the united states, than will pay ten years of the expenses of this office. a merchant going into the building of vessels without a knowledge of the business will find the truth of this fact. the great expenditure attending the building of the frigates, he supposed had been chiefly owing to the want of such an establishment as the present. the gentleman from new york had stated the expense of the war department at $ , ; but one-half of that expense was incurred in the office of the accountant of the war department; and as there would be no need of a new accountant, the expense could not be doubled. the duties of the war department are greatly increased, and might be further increased during the present session; and an expenditure of the kind proposed might save the throwing away of thousands of dollars. mr. macon said, the arguments in favor of this bill were derived from a want of knowledge of naval affairs in the war department. he thought that might be supplied without the establishment of a new department; but he believed the building of the frigates had mostly been carried on under the direction of the captains who were to have the command of them. more clerks had been added to the war department, in consideration of the business which the navy had occasioned. he believed the more officers were appointed, the more money would be expended. mr. otis said, the gentleman from new york had opposed this bill on different grounds from the gentleman from pennsylvania. he did not make any reply to the gentleman from pennsylvania, because he expected opposition from him and some others, to every measure which had the defence of the country for its object; and, as the session was drawing to a close, he thought it best to have as little debate as possible, and that the sooner the question was taken the better; but when he saw a gentleman rise in opposition to it, upon whose support he calculated, he was apprehensive lest it might have an effect upon other persons on whose support he also relied. the gentleman from new york seemed to apprehend some new and heavy expense was to be incurred, and that some greater caution was now necessary than heretofore. what saving, then, does he mean to make by opposing the establishment of this office? since he supposes the same clerks will be sufficient, it will only be the salary of the chief officer, which, mr. o. supposed, would be $ , --a greater saving than that which would be made by such a person in every ship built or purchased. taking the expense of our naval establishment at one million dollars a year, it would only be an expense of one-third per cent., which every one must allow was a mere trifle, to have the money of the public well expended. the services of the war and navy departments were, he said, perfectly distinct. the duties of the war department became every day more arduous, and whatever gentlemen may think, they must become still more so. this opposition coming from a friend, he could not suppose it arose from a bad motive, but merely from a narrow conception of what is conceived to be the agricultural interest. agriculture and commerce, said mr. o., are twin sisters, and cannot live separate from each other; they must live together, or expire at the same moment. it was the duty of gentlemen representing agriculturists thus to speak to their constituents. it was an axiom realized by every politician in the world. the fact was, that every thing spent upon the naval department was so much saved, in which the agricultural part of the country partake very largely. mr. t. claiborne never remembered to have heard such language as had fallen from the gentleman last up. he laments, said mr. c., that a gentleman who usually voted with him should dare to think for himself. are gentlemen's opinions and language thus to be circumscribed? [mr. o. explained.] mr. c. continued, the gentleman was willing that all questions should now be taken without debate. does this mean, said he, that there are a majority of members in this house who must always be in the right, and a minority always in the wrong? if this be the case, they had better dismiss the minority, and do the business themselves. were not gentlemen any longer to express their difference of opinion? would this be the way to keep the government together, or to preserve harmony in the country? if this were to be the situation of things, he should regret it with tears in his eyes. he had himself no mathematical certainty that any opinion of his was right; nor did he think the gentleman from massachusetts ought to expect men to bow to his. such an assumption led to mischief of a serious kind. what! to say we have a majority, and therefore we will have no debate. [the speaker said no such expression had been made use of; if it had, he should have checked it.] had it not been for an expression of this kind, he should not have risen on this question. he wished to hear every man deliver his opinion freely. mr. c. did not believe the bill to be a proper one, and he should therefore vote against it. mr. mcdowell said, he should be opposed to the bill, if he had no other objection to it than that it went to countenance the idea, according to the gentlemen from maryland and massachusetts, that this country must go into the establishment of a large naval power. the great saving to be derived from this office, he understood to be from savings in the building of vessels; but, as the twelve vessels which were lately voted are proposed to be purchased, ready built, he supposed this reason did not apply at present. if there was no intention, therefore, (which he trusted there was not,) of carrying our naval establishment to any considerable extent, he could see no occasion for the creation of this office. for, if this secretary of the navy was appointed, he would also be obliged to rely upon others, in a great degree, for information. mr. harper said, the naval defence which this house thought necessary for the service of the country having been voted, he could not agree with those gentlemen who consider this as a question of defence. he thought it a question of economy, and, in this view, he should reply to some observations which had been made upon it. he believed our naval defence would be much more efficaciously and speedily provided by means of the proposed establishment than if the bill was rejected. so far, indeed, it is a question of defence, but only collaterally so. the point of view in which this bill should be considered, is simply this: will it not effect with more speed and economy the marine defence now existing, as well as that contemplated? he himself had no doubt as to the fact. indeed, he would ask the gentleman from north carolina, whether, if he were about to erect a distillery on his place, he would employ his overseer to do it, who, though he might understand the business of his farm very well, knew nothing of building. he certainly would not; and if this would be bad policy in an individual, it would be equally so in a nation. besides, the expense would be so trifling as only to amount (as had been stated) to one-third per cent., though traders were in the habit of paying five per cent. to have their business done. but it was said, that if an office of this kind was established, it would soon create business. but the business is already created. we have, said he, already a marine of fifteen ships of war. this, he knew, was comparatively a small force, but in the establishment of which we shall yet expend two millions of dollars, and the support of which will amount at least to $ , or $ , annually. when the war department was first established, the object of its care was not, he believed, of equal magnitude. mr. r. williams was ready to acknowledge he did not believe it could ever be the interest of this country to go into the establishment of a large naval power, and therefore he should not be in favor of the present bill on that ground. nor did he think there was any good reason for dividing the military and naval business, except there was more than could be attended to by the present establishment. but it was said the business was of a different nature, and therefore it ought to be in separate departments, as one man cannot be supposed to understand both concerns. that objection would apply to any of the other departments; and whenever this rule of dividing business shall be adopted, we shall get men of inferior talents to do it. when the government was established, it was thought that a war department would be equal to the military and naval concerns of this country. but it was said a navy was not then thought of; it was, however, doubtless thought of when the frigates were ordered to be built, and it was not then gone into. it was, however, said that much money had been lost for want of an officer of this kind. this was mere assertion, and it was by no means clear that the business would be done better with such an officer than without him. but it was said, it was necessary to go into this measure for the sake of appearances. to whom are these appearances to be made? not to our own people, but to european nations. the gentleman from massachusetts says we ought to adopt their opinion upon this subject. he viewed a policy of this kind the most fatal of any other to this country. he believed that the less we had to do with european politics, and their mode of administration, the better. the only object in view, with that house, ought to be the interest of their own country. what, said he, is the situation of those countries which have gone into the establishment of large navies? they are involved in debt which they never can, and never will, pay. mr. j. williams said, the only point in dispute was, whether a separate office should be established for the business of the navy, or whether it should be put under the care of a superintendent in the war department. he wished the gentleman from massachusetts (mr. otis) had spared his observations until he had heard those of the gentleman from maryland, (mr. s. smith.) it had appeared to him that a superintendent in the war department would have been sufficient, and he yet thought so. he did not think the business of the navy was so great as to require a separate establishment. there was more business in the war department in than at present, and nothing was then heard of a new department. he should not have opposed this measure if he had not been convinced that every measure taken to increase the navy beyond its present establishment would have a bad effect on this country. it had been proposed last winter to purchase all the live-oak timber in the southern states; afterwards a proposition was brought forward for the establishment of navy yards. those measures had been defeated, and they were now called upon to establish a new department for this favorite object. he was not willing to do it. the gentleman from massachusetts said there would only be a difference between making a new office, and continuing to do the business in the war department, of the salary of the chief officer; but if he looked at the second clause of the bill, he would find himself mistaken, as there was in that provision for a principal clerk, and such other clerks as he shall judge necessary: so that he may have a clerk for every port in the union, if he pleases. if he represented, as the gentleman from massachusetts does, a commercial interest, he might be as favorable to a navy as him; but as that was not the case, he was opposed to it. he gave his approbation to such appropriations as he thought necessary; and if, in this instance, he differed in opinion from the gentleman from massachusetts, he should stand excused. he believed with that gentleman, that the commercial and agricultural interests were closely connected; they differed only as to the extent to which it was proper to carry our naval defence. he did not wish, however, at present, to reject the bill. he believed it might be amended, and he had no objection to the question being postponed for that purpose. mr. livingston said, he was almost tempted to smile at the arrogant pretensions of some gentlemen in this house, in their treatment of others, at least their equals on this floor, whatever they might be out of doors, being equally with them representatives of the people. they were told by the gentleman from massachusetts (mr. otis) that opposition was expected, was looked for, from certain gentlemen; that no argument was necessary on the occasion, because those members who were opposed to all measures of defence, would oppose this measure also; but that those who had originated the measure would carry it into effect. this simple declaration of a strength of party was also attended with a very handsome rebuke of one of his colleagues (mr. j. williams) for having dared to doubt the propriety of the measure before the committee. he was happy to find this rebuke had produced its effect, and that though his colleague was at first very decidedly against the bill, he was now disposed to doubt; and the effect of another rebuke, he supposed, would obtain his vote in favor of the new establishment. for his own part, neither the rebuke, nor the preliminary observations with which it was accompanied, had produced any effect upon him. he did very much doubt the propriety of the measure; for, although there was a great deal of business in the war office, and the same person could not be supposed to be acquainted with military and naval affairs, if a ship-builder was to have the appointment, he could not think such a person fit to be one of the great council of the nation; and it must be recollected that the person who holds this office will become one of the counsellors of the president on all great concerns. it was said that this establishment was necessary, in order to give an appearance of defence to europe, as if the establishment of a department of the navy was to have the effect to do away all our past and to prevent future injuries. but our appearance to europe was not all; the example of european countries was mentioned. all were said to have a marine department. the practice of europe, mr. l. said, had proved itself to be a bad one, as the navies of those countries had proved the ruin of them. the yeas and nays were taken upon this bill going to its third reading, and decided in the affirmative--yeas , nays , as follows: yeas.--john allen, bailey bartlett, james a. bayard, christopher g. champlin, john chapman, james cochran, joshua coit, william craik, samuel w. dana, john dennis, george dent, thomas evans, abiel foster, dwight foster, jonathan freeman, henry glenn, chauncey goodrich, roger griswold, william barry grove, robert goodloe harper, william hindman, hezekiah l. hosmer, james h. imlay, samuel lyman, james machir, william matthews, daniel morgan, lewis r. morris, harrison g. otis, josiah parker, thomas pinckney, john read, john rutledge, jun., james schureman, samuel sewall, william shepard, thomas sinnickson, thompson j. skinner, nathaniel smith, samuel smith, peleg sprague, george thatcher, richard thomas, mark thompson, thomas tillinghast, john e. van allen, and peleg wadsworth. nays.--abraham baldwin, david bard, lemuel benton, thomas blount, richard brent, nathan bryan, stephen bullock, thomas claiborne, william charles cole claiborne, matthew clay, thomas t. davis, john dawson, lucas elmendorph, william findlay, john fowler, albert gallatin, james gillespie, carter b. harrison, jonathan n. havens, joseph heister, david holmes, walter jones, edward livingston, matthew locke, matthew lyon, nathaniel macon, blair mcclenachan, joseph mcdowell, john milledge, anthony new, william smith, richard sprigg, jun., richard stanford, thomas sumter, abram trigg, john trigg, philip van cortlandt, joseph b. varnum, abraham venable, john williams, and robert williams.[ ] thursday, april . the bill for establishing an executive department, to be denominated the department of the navy, was read the third time and passed-- to . _military appropriations._ on motion, the house again resolved itself into a committee of the whole on the bill appropriating for the military establishment for the year ; when, the question for filling the blank in the quartermaster's department with $ , again recurring, mr. gallatin moved to fill the blank with $ , , which was the sum he had proposed on a former day, since which, he said, the house had received a number of statements from the secretary of war, in order to induce a larger appropriation. as there seemed to be a general concurrence of opinion to restrict the expenses of the war department, he wished some gentlemen, better able to do it than himself, would compare the number of troops in service with the sums there required. mr. g. noticed a number of items which appeared to him unaccountably extravagant, and contrasted the very great expense incurred on the north-western frontier with that of the troops employed on the seaboard. mr. g. also took a view of the expenses under this head from the year to the present time, in order to show that $ , would be a sufficient appropriation. after commenting pretty freely and at large on the estimates from the war office, mr. g. said, he believed there was some radical defect with respect to the connection subsisting between the accountant's department, the treasury and war departments, which prevented a proper investigation of accounts. so far as relates to the treasury department, the accounts were always very clear, and there was no ground of complaint; but, from the connection which subsists between the war department and the accountant's department, there seemed to be a want of responsibility. in the details which had been laid before the house, mr. g. said, he found items under the head of contingencies, which he should never have expected to have found there; one was for the pay of an inspector of the troops and garrisons of the united states, at a salary of sixty dollars a month. he could not say such an officer was not necessary; but if he was, he would say he ought to have been provided for by law. the other item was for a much larger sum, viz: the pay of an engineer of the fortifications of the united states, at a salary of three thousand dollars a year, which was a salary greater than that of the secretary of war. it appears that this engineer was engaged for three years; but, after he had been some time in the service, two thousand dollars were given him over and above his pay, to relinquish his contract. after a few observations from mr. dana, in favor of the secretary of war, mr. shepard rose, and went over the different items contained in the statement read yesterday, particularly the boatmen, $ , ; the pack-horsemen, $ , ; the wagoners, $ , ; the laborers, $ , ; the armorers, $ , ; the artificers, $ , ; hire of expresses, $ , ; and fuel, $ , . he could not tell how so many boatmen, pack-horsemen, and wagoners, could be employed (for it was not for boats, pack-horses, and wagons, but for the men alone;) and what so many laborers could be employed in he could not imagine. he did not see why the soldiers could not do all the labor the army had to do themselves. when he was in the army, he was at no expense like this. and how the repairing the arms for three thousand men could cost $ , he could not tell; nor could he see how $ , could be expended on artificers. if we were to be involved in war, it would not do to expend money in this manner. it was easy to write down thirty, fifty, or one hundred thousand dollars for this or that, but when the taxes came to be laid, the money would not be so easily raised. mr. s. passed over a number of articles, till he came to fuel. he thought $ , a year for fuel, in a country where the trees were ready to fall upon them, was a very exorbitant charge. while he was in the army, it never cost him sixpence for fuel. the united states had better purchase the land upon which the timber grows, at once; they would be able to get it for a much less sum. if these expenses were to be incurred for five thousand men, what would be the expense of an army of thirty thousand men? this estimate, he was sure, must be much too large; and it became congress to be careful how they gave encouragement to such charges as these, for the country would scarcely be able to support the expense of any considerable establishment if more economy was not used. the question on filling the blank with two hundred thousand dollars, was put, and negatived without a division. mr. gallatin moved to fill the blank with $ , . he said that, with respect to the integrity of the secretary of war, he did not doubt it in the least; as to his talents he had no opportunity of forming a correct judgment of them; he was, however, some judge of accounts, and he saw enough of them to authorize the declaration which he had made as to the improper connection of the different departments. he had spoken of facts only. the question for filling the blank with $ , was put, and carried without a division. after agreeing to several other items, amongst which was one for the vessels on the lakes, the committee rose, the house agreed to the amendment, and the bill was ordered to be engrossed for a third reading. _presents to ministers._ the speaker said he had received a letter this morning, signed thomas pinckney, which he was desired to lay before the house. it was accordingly read. it stated that when he (mr. pinckney) had concluded the late treaty with the spanish government, the spanish minister, the prince of peace, informed him the presents usually given in such cases would be prepared for him; and that also when he took leave of the british court, the like information was given to him by the minister there. to both of which he replied, that the constitution of the united states forbade its ministers from receiving any present from any foreign prince or state, without the consent of congress; that in due time he would ask that consent, and act accordingly. this letter asks for the determination of congress. it was moved by mr. rutledge to refer this letter to a select committee. mr. macon wished it to go to a committee of the whole house. after some observations, the latter motion was negatived, and the former carried. friday, april . on motion of mr. w. c. claiborne, the house went into a committee of the whole on the bill directing the payment of a detachment of militia, for services performed in the year , under the command of major james orr. the bill was reported without amendment, and ordered to be engrossed for a third reading to-morrow. wednesday, may . _naturalization law._ on motion of mr. sewall, the house went into a committee of the whole on the report made yesterday by the committee for the protection of commerce and the defence of the country, on the subject of naturalization; and the report having been read, and the first resolution for prolonging the term of residence before aliens shall be admitted as citizens, being under consideration, mr. sewall said, the term of residence now required from foreigners before they can become citizens, is five years. the committee think this period too short; it is much shorter than the period adopted by the french government. the committee were of opinion that a residence of at least ten years should be required; but this might be left a blank in the bill, and afterwards filled. mr. harper believed that it was high time we should recover from the mistake which this country fell into when it first began to form its constitutions, of admitting foreigners to citizenship. this mistake, he believed, had been productive of very great evils to this country, and, unless corrected, he was apprehensive those evils would greatly increase. he believed the time was now come when it would be proper to declare, that nothing but birth should entitle a man to citizenship in this country. he thought this was the proper season for making the declaration. he believed the united states had experience enough to cure them of the folly of believing that the strength and happiness of the country would be promoted by admitting to the rights of citizenship all the congregations of people who resort to these shores from every part of the world. under these impressions, which, as he supposed they would have the same force upon others as upon himself, he should not detain the committee by dilating upon, he proposed to amend the resolution by adding to it the following words, viz: "that provision ought to be made by law for preventing any person becoming entitled to the rights of a citizen of the united states, except by birth." the chairman declared this amendment would be a substitute to the resolution before the committee, and therefore not in order. mr. otis said, he would propose an amendment, which he believed would be in order, which was as follows, namely, "and that no alien born, who is not at present a citizen of the united states, shall hereafter be capable of holding any office of honor, trust, or profit, under the united states." mr. harper moved to amend this amendment, by adding the following words: "or of voting at the election of any member of the legislature of the united states, or of any state." mr. h. said, he was for giving foreigners every facility for acquiring property, of holding this property, of raising their families, and of transferring their property to their families. he was willing they should form citizens for us; but as to the rights of citizenship, he was not willing they should be enjoyed, except by persons born in this country. he did not think this even was desirable by the persons themselves. why, he asked, did foreigners seek a residence in this country? he supposed it was either to better their condition, or to live under a government better and more free than that they had left. but was it necessary these persons should at once become entitled to take a part in the concerns of our government? he believed it by no means necessary, either to their happiness or prosperity, and he was sure it would not tend to the happiness of this country. if the native citizens are not indeed adequate to the performance of the duties of government, it might be expedient to invite legislators or voters from other countries to do that business for which they themselves are not qualified. but if the people of the country, who owe their birth to it, are adequate to all the duties of government, he could not see for what reason strangers should be admitted; strangers who, however acceptable they may be in other respects, could not have the same views and attachments with native citizens. under this view of the subject, he was convinced it was an essential policy, which lay at the bottom of civil society, that none but persons born in the country should be permitted to take a part in the government. there might have been, mr. h. acknowledged, individual exceptions, and there may be again, to this general rule; but it was necessary to make regulations general, and he believed the danger arising from admitting foreigners generally to citizenship would be greater than the inconveniences arising from debarring from citizenship the most deserving foreigners. he believed it would have been well for this country if the principle contained in this amendment had been adopted sooner; he hoped it would now be adopted. mr. s. smith believed it would be best first to decide upon the resolution as reported; if it was negatived, the gentleman from south carolina might then introduce his amendment as a substitute. to adopt the resolution as reported would be, he believed, to agree upon an _ex post facto_ regulation. it could not be intended, he should suppose, to prevent persons who had resided in this country two or three years, under the expectation of becoming citizens at the end of five years, from that privilege. mr. champlin suggested whether, if this amendment was adopted, it would not prevent foreigners, who are not at present citizens of the united states, from becoming officers in the military or naval departments of the united states. if so, he believed it would be proper to insert the word "civil" before "officers." mr. otis acknowledged that the objections of the gentleman from maryland (mr. s. smith) were, in some degree, well founded; but there might be regulations introduced into the bill to avoid them. the present law, he believed, directs that persons shall give notice of their intention of becoming citizens of the united states. where this notice had been given, he thought such persons should be excluded from the operation of the law. these resolutions having only been laid upon the table this morning, he wished, however, that the committee might rise, in order to afford a little time for consideration. he wished to exclude all foreigners, whom he could constitutionally exclude, from holding offices in the united states; but not to entrap such as are in the way of becoming citizens. mr. harper said, that, having had it suggested to him that the constitution would not admit of restraining the states in their admission of citizens, he should withdraw his amendment for the present, until he had had an opportunity of examining the constitution in this respect. the motion being put for the committee to rise, it was carried, and the committee rose accordingly. thursday, may . _naturalization law._ mr. sewall moved the house to go into a committee of the whole on the state of the union, in order to resume the consideration of the resolution which had been reported on the subject of aliens. mr. otis wished to propose a resolution to the house, before it resolved itself into a committee of the whole on the state of the union, as a substitute for the first resolution, reported by the committee for the protection of commerce and the defence of the country. it was to the following effect: "_resolved_, that no alien born, who is not at present a citizen of the united states, shall hereafter be capable of holding any office of honor, trust, or profit, under the united states." mr. venable did not think the house were authorized to enact such a principle into a law. if taken up at all, it ought to be considered as a proposition for amending the constitution. if it was thought necessary by gentlemen to amend the constitution in this way, he should not object to going into the subject. after foreigners were admitted as citizens, congress had not the power of declaring what should be their rights; the constitution has done this. foreigners must, therefore, be refused the privilege of becoming citizens altogether, or admitted to all the rights of citizens. mr. otis had no idea that this proposition could be considered as a proposition to amend the constitution. if the house had the power to amend the naturalization law, and to extend the time of residence necessary to entitle an alien to citizenship, they could certainly extend it to the life of man. the idea of citizenship did not always include the power of holding offices. in great britain no alien was ever permitted to hold an office, he wished they might not be allowed to do it here. the speaker said this was not the proper time to argue whether this proposition ought to be considered as an amendment to the constitution. the committee of the whole would report upon it as they thought proper. mr. venable did not object to the resolution being referred, but thought it ought to go rather to an ordinary committee of the whole than to that on the state of the union, as he did not believe congress had the power of saying, men who were entitled to hold offices by the constitution, shall not hold them. the motion for reference was put and carried, there being for it votes. the house then resolved itself into a committee of the whole on the state of the union, mr. dent in the chair; when mr. otis moved to postpone the consideration of the resolution formerly under consideration, for extending the time of residence of aliens before they should be entitled to citizenship, in order to take up the resolution which he had proposed, and which had been referred to this committee. the question was put and negatived-- to . the question then returned upon the motion made by mr. otis yesterday, to amend the first resolution, by adding words of the same tenor with those contained in the resolution referred this morning. mr. macon said, whether it would be good or bad policy to adopt a regulation of this kind, he would not inquire, because he believed the president and senate could always appoint such men as they thought proper to office. if a man is a citizen, he is eligible to office agreeably to the constitutional rule, and that could not be altered by law. if the people chose to elect a foreigner as a member of the legislature, if he had been a citizen seven years, congress could not say he should not be eligible. they might, indeed, make the time of residence, to entitle a foreigner to citizenship, so long, as to prevent him in that way from holding a seat in the legislature; but, after a man is a citizen, he must be entitled to the rights of a citizen. mr. otis said, gentlemen could certainly read the constitution for themselves, and draw their own conclusions from it. he himself had not the smallest doubt as to the constitutionality of restricting aliens in the way proposed. he believed that congress, having the power to establish an uniform rule of naturalization, could, if they thought proper, make a residence of forty or fifty years necessary before an alien should be entitled to citizenship, which would extend to the whole life of a person, and prove an effectual exclusion. if congress, then, had a right to exclude foreigners altogether from citizenship, any modification of that right was certainly within their power, and would be an advantage to aliens, for which they ought to be grateful. there would be nothing in this contrary to the constitution; for it was always acknowledged that where an absolute power may be exercised, a conditional power may also be exercised. what advantage, he asked, was derived to this country from giving aliens eligibility to office? the people of this country were certainly equal to the legislation and administration of their own government, comprising all the aliens who are now become citizens. he had no doubt but many aliens would become very valuable acquisitions to this country; but he had no idea of admitting them into the government. he did not wish to open the door to the intrigues of other countries in this way; since we know there are countries whose chief attention is paid to the obtaining of influence in the internal concerns of the countries over which they wish to have dominion. and he could see it possible that persons might be furnished by such a country to come here and buy lands, and by that means, in time, get into the government. great britain, he said, was very careful of the avenues which led to her liberty in this respect. aliens were there excluded from holding all places of honor, profit, or trust. the situation of america heretofore was different from what it is at present. it had not only been thought good policy, in times past, to encourage foreigners to come to this country, but also to admit them into the legislature, and important offices. but now, said he, america is growing into a nation of importance, and it would be an object with foreign nations to gain an influence in our councils; and, before any such attempt was made, it was proper to make provision against it; for if the time ever should arrive when a number of persons of this description had found their way into the legislature, a motion of this kind would of course be very odious. if, however, gentlemen were of a different opinion and think the object would be better accomplished by extending the residence of aliens, he should not object to that course being taken, though he thought the one he proposed perfectly within the power of the house. mr. sitgreaves wished that, in attaining an object in which all seemed to concur, they might avoid any constitutional embarrassment; and this it was allowed might be done by extending the time of residence of aliens so far, as to prevent them from ever becoming citizens, by which means persons who could not be considered as having a common interest with the citizens of the country, would be effectually excluded from holding offices in the government. mr. otis withdrew his amendment; and then all the three resolutions were agreed to, without a dissenting voice. the committee rose, and reported the resolutions. the two first were concurred in; but, on the question being put on the third, mr. n. smith said, a foreign government might do an act tantamount to war, without declaring it, yet according to the wording of the proposition, the citizens of that country could not be removed. he therefore moved to amend the proposition by adding the words, "being native citizens of any country the government whereof shall be at war with the united states." mr. sewall said, the only objection that he had to this amendment arose from the consideration that congress alone had the power of deciding on the question of war, and he could not therefore see how it could be determined that any nation was at war with us, until the declaration was made by that nation, or by congress. mr. otis wished his friend from connecticut would admit of an amendment which he held in his hand, in the place of that which he had offered. it was in the following words: "or shall authorize hostilities against the united states." mr. n. smith had no objection. mr. mcdowell thought this motion more objectionable than that of the gentleman from connecticut. it ought to be remembered, mr. mcd. said, that inducements had been held out to foreigners to come to this country, and many of them had come with a view of becoming citizens of this country, and many, he believed, were as good as any amongst us. out of respect to these foreigners, he should not wish to place them in the situation which this amendment went to place them in; because it might be said, hostilities were authorized when no war was declared, and these people might be treated as if the nation from which they came was at war with us, when no war existed. it had been said our population was now sufficient, and that the privileges heretofore allowed to foreigners might now be withdrawn. in some parts of the country, this might, in some degree, be the case; but he knew there were other parts which wanted population. from this consideration, and as he did not wish unnecessarily to distress the minds of foreigners who had taken up their residence amongst us, he should vote against this amendment. mr. j. williams was persuaded, that, if this proposition passed, no good citizen need be afraid of being disturbed. he had no objection to this resolution without the amendment, nor had he any particular objection to the amendment. mr. rutledge was so far from believing that this amendment would check the immigration of foreigners, that he believed it would encourage it. foreigners came here to live under a good government, and the more secure the government was made, the greater would be their desire to live under it; and he believed a greater security could not be given to it, than was proposed to be given by this amendment. it was wished to vest a power in the president to send out of the country persons who were natives of a country with whom we are at war, or who may have authorized hostilities against us. in fact, in the situation of things in which we are now placed, the president should have the power of removing such intriguing agents and spies as are now spread all over the country. what, said mr. r., would be the conduct of france, if in our situation? in twenty-four hours every man of this description would either be sent out of the country or put in jail, and such conduct was wise. was there nothing, mr. r. asked, to admonish us to take a measure of this kind? yes, there was. a gentleman from kentucky (mr. davis) had said, that a person was in that state delivering commissions into the hands of every man who was so abandoned as to receive them. other means were also taken to alienate the affection of our citizens; and are we still, said he, to say we will not send these persons out of the country until a declaration of war is made? if these persons are suffered to remain, france will never declare war, as she will consider the residence of these men amongst us as of greater consequence than the lining of our seaboard with privateers, or covering our coasts with men. mr. venable did not wish to show any particular encouragement to foreigners; but, if persons thought they could live happier here than in their own country, he should not object to their making the change. he could not agree to the amendment. suppose hostility was committed upon the property of any of our citizens by france, such hostility might not be sufficient cause for placing all our commercial citizens in a situation of having their property seized. many cases might be deemed hostility by the president which ought not to go to cut off all communication between the citizens of the two countries. in such a case, if any of the citizens of france should be taken up here, it would produce a similar conduct towards our citizens in that country, which would be allowed to be a serious evil. mr. sewall again urged, as an objection to this amendment, the constitutional power of congress to declare war. too many circumstances of insult and aggression, he allowed, had been experienced by this country from a foreign power, which might have been understood by other nations as war, and might have been so considered by this country; yet, as it is an act of congress to declare war, we could not be considered as at war until congress declared us to be in such a state, except war was declared against us. this provision was not intended for any particular case, but as a general provision, which might at any time be called forth by proclamation. it should, therefore, be as well guarded and definite as possible. if the words proposed were introduced, the proposition would be rendered too indefinite; and the president might proceed to send aliens from this country, and of course cause our citizens in a foreign country to be sent from thence, or to be imprisoned, and their property confiscated, at a time when congress might not judge it expedient to go to war. france, said he, has now done towards the united states what might be considered as hostility. suppose we pass a law which calls upon the president to act, what ought the president to do? was he to determine the point whether france has authorized hostilities against the united states? if so, he would doubtless say she had, and in consequence every frenchman in this country will be liable to be removed out of the country, and our citizens who happen to be in france will be placed in the same situation. mr. s. said, though it might be proper for congress to declare this to be the state of the country, he thought it would be improper to give the president this power. he wished the power of sending persons out of the country to be confined to such cases as were particularly dangerous, which were included in the resolution without this amendment. as to foreigners guilty of crimes against the united states, they ought to be apprehended and punished according to the existing laws: the present regulation was not pointed at them. mr. otis said, as his colleague had chosen to call his amendment indefinite, he must excuse him when he said he considered the resolution without it, as trifling and ineffectual, and argued a timidity which ought not at this time to be shown by this country; and had he not been thoroughly acquainted with the uprightness of intention and the purity of the motives of his colleague, he should really have doubted whether he was sincerely desirous of exerting all the energies of the country in her defence; but, being persuaded of these, he would suppose that he himself was wrong in his conception on this occasion, and would make a few observations as to the ground upon which he formed his opinion. he believed it would not be proper to wait until predatory incursions were made--until the enemy was landed in our country, or until what shall be considered as threatening or actual invasion appeared--before any steps were taken on the subject now under consideration. he was of opinion that when an enemy authorized hostilities, that was the time to take up that crowd of spies and inflammatory agents which overspread the country like the locusts of egypt, and who were continually attacking our liberties. the provision would doubtless be exercised with discretion. there might be frenchmen in this city and others (and he doubted not there were) who were peaceable, well-disposed persons, and against whom it never could be thought necessary to exercise this power; but there were other persons, not only in this city, but in others, who have not only been extremely instrumental in fomenting hostilities against this country, but also in alienating the affections of our own citizens; and it was men of this description whom he wished to remove from the country. it is proposed by this resolution to give the president the power to remove aliens, when the country from which they come shall _threaten_ an invasion. some believe that this country is at present threatened with an invasion, and with a ravage of our coasts, yet others say that the despatches from our envoys only consist of unauthorized conversations with x, y, and z, and therefore not to be relied upon. mr. o. thought this a more indefinite power than that which he proposed to vest in the president. his opinion was, that something ought to be done which should strike these people with terror; he did not wish to give them an opportunity of executing any of their seditious and malignant purposes; he did not desire, in this season of danger, to _boggle_ about slight forms, nor to pay respect to treaties already abrogated, but to seize these persons wherever they could be found carrying on their vile purposes. without this, every thing else which had been done in the way of defence would amount to nothing. mr. mcdowell said, from the observations of the gentleman who had just sat down, it would appear that hostilities had already commenced between this country and france. if this is the case, and the house knew it, why not say so, and make preparations accordingly? why pass acts fitted for a state of war, without declaring that that is the state of the country? [mr. otis said, if the gentleman from north carolina would bring forward a proposition of this kind, he should be ready to vote for it.] mr. mcd. expected the gentleman was prepared for war, and, therefore, that he would have brought forward a resolution to that effect himself. the gentleman from south carolina (mr. rutledge) had not considered this amendment with his usual accuracy, when he said that the adoption of it would prove an encouragement to foreigners to come to this country. he thought it could not be very flattering encouragement to foreigners, to tell them, "if you come here, and your government commits any act of hostility against the citizens of this country, you will be liable to be imprisoned, or sent out of the country." but it was said the country swarmed with spies and seditious persons. if this was the case, he should be glad if gentlemen would point them out; if they could, he should be as glad as they to take measures against them. a person in kentucky had been alluded to. under the authority of _genet_, he believed some commissions had been issued; but he did not believe that any had been issued since. it was also known that there had been another minister of another country who had adopted a similar practice. he still remained here, and might still be carrying on his mischievous schemes.[ ] [the speaker said the resolution was general.] it was said that hostilities having been committed on our commerce by france, they would authorize a war with france, (though great britain had conducted herself much in the same way, and nothing was said as to her,) and that therefore the president ought to be empowered to send all frenchmen out of the country, however peaceably they might be residing here, if he thought proper to do so. this he could not consent to. it was too large a power. he should therefore vote against the amendment. mr. sitgreaves considered this as one of the essential features of the system of defence about which congress had been employed during the present session, in order to enable us to meet the dangers which threaten us. he believed, that though it might be extremely wise and prudent to enter into regulations for securing our peace at all future periods, yet it was most particularly their duty to concert measures of defence and protection in our present exigencies. he believed the business of defence would be very imperfectly done, if they confined their operations of defence to land and naval forces, and neglected to destroy the cankerworm which is corroding in the heart of the country. there could be no question on this subject. it is well understood by every member of the community. there is no occasion for specific proof that there are a great number of aliens in this country from that nation with whom we have at present alarming differences; that there are emissaries amongst us, who have not only fomented our differences with that country, but who have endeavored to create divisions amongst our own citizens. they are, said he, assiduously employed at this moment, and it is much to be lamented that there exists no authority to restrain the evil. it was therefore peculiarly incumbent on congress to add to their other measures of defence, such powers as will protect the country against this evil. he believed this could not be effected without the adoption of some such principle as that under consideration. if the power was too limited, the enemy would not be met. there could be no difficulty, mr. s. said, in point of right. all understood the rights to which aliens are entitled by the laws of nations. they are no more than the rights of hospitality, and this right varies according to the relation in which the country from which they come, and that in which they reside, is peaceable, or otherwise. we do not owe to the citizens of france residents in this country (since france had been mentioned) the same hospitalities which we owe to those foreigners who are alien friends; though he confessed there were rights of hospitality which could not be done away in time of war, particularly as it respects alien merchants, which were provided for in this resolution. and except a person had an actual agency in designs which would endanger the peace of the country, though he was ordered out of the country, a free passage would be given to himself and effects; and if actually engaged in designs against the country, there would be a strong necessity for restraining the liberty of any such persons. it had been well asked, whether we ought to wait till the enemy landed, before any measures were taken to remove persons from the country, who would be ready to join them by thousands, or take advantage of knowledge we have of their hostile intentions towards us? he thought there could be no doubt on the subject. he knew there were aliens in this country, of valuable characters, whose acquaintance ought to be cherished and cultivated. such men would be in no danger from the proposed provision. it was meant only to operate against factious and bad men, who abuse the liberty allowed to them of residing in this country, and these all must see the necessity of attending to. france, said he, will not admit an alien of any description to reside in her country without a card of hospitality, and shall congress scruple to go the length of this amendment? he hoped not. mr. allen said, he would move an amendment which would supersede that under consideration, by making the resolution extend to _all aliens_ in this country. he wished to retain none of the restraints which are in the present resolution. nothing but his respect for the gentleman who made this report (mr. sewall) would have prevented him from suspecting that there existed some latent and mischievous design in this business. the proposition goes upon the supposition that none but the citizens of a particular nation can be dangerous to this country; whereas he believed that there are citizens of several other countries who are as dangerous, who have dispositions equally hostile to this country with the french--he believed more so. he believed the whole country was aware of this. mr. a. alluded to the vast number of naturalizations which lately took place in this city to support a particular party in a particular election. it did not appear to him necessary to have the exercise of this power depend upon any contingency, such as a threatening of invasion, or war, before it could be exercised. he wished the president to have it at all times. he moved an amendment to this effect, which went to enable the president to remove at any time the citizen of any foreign country whatever, not a citizen, regarding the treaties with such countries. if gentlemen took a view of the different states of europe which had been subdued by the french, mr. a. said, they would not think it either wise or prudent to wait for an invasion, or threatened invasion, before this power was put in execution. venice, switzerland and rome, had been overcome by means of the agents of the french nation, at a time when they were in a much less alarming situation than we are at present; and the first disturbance in those countries was made the pretext of open hostility. this has been the effect of _diplomatic agency_; of emissaries within and without, who have bred quarrels, for the purpose of forming pretexts for measures which have led to the subjugation of those countries. he believed there were citizens in this country who would be ready to join a foreign power in assisting to subjugate their country. what passed before our eyes, and every day offended our ears, were so many proofs of it. not many weeks ago open threats were made to disturb the peace of the country. he hoped, therefore, with all these things before them, the amendment which he had proposed would be agreed to. mr. sewall said, being one of the committee who made this report, he supposed he fell in for a share of that censure which had been so liberally cast upon it by his colleague, and the gentleman last up from connecticut. the gentleman from connecticut had thought fit to condemn the committee for not having considered cases which were not referred to them. it was not referred to them to consider what france had done in all other countries with whom she had had disputes, or what this country should do against france; but what should be done with respect to aliens in this country generally. civil policy regarded aliens in two lights, viz: alien friends and alien enemies. he did not contemplate the making of this country a wall against all aliens whatever; or that no alien should come here without being subject to an arbitrary authority, such as is known only to the french directory. if the existence of such a power as shall be able to place every alien in the country in a dungeon, was necessary to quiet the fears and apprehensions of the gentleman from connecticut, he should not be willing to grant it. indeed, it appeared to him that the fears and apprehensions of that gentleman arose from some defect in his own organization, or disease of his body (which he believed might be better cured by the physician, than by any thing else) rather than from any real ground of alarm. what, said mr. s., is to be feared from the residence of aliens amongst us? any thing to ruin the country? he acknowledged many inconveniences arose from this circumstance, but more from our own unnatural children, who, in the bosom of their parent, conspired her destruction. but did the gentleman wish to increase the evil, by saying that persons born in foreign countries, however regular and orderly their conduct may be, shall be liable to be imprisoned, or sent out of the country, but that citizens of this country, however reprehensible their conduct, should have nothing to fear? the committee were not called upon to report on this point. he was himself of opinion that more ought to be done, and that aliens from any country should be liable to be removed, in case of misbehavior; but he did not wish to leave the business wholly with the president of the united states. the committee had reported only in part; they had yet to consider what steps would be proper to be taken against aliens, or citizens, guilty of criminal proceedings; but when gentlemen saw the addresses which were pouring in from all parts of the country in favor of the measures which had been pursued by government, and expressions of determination to support every measure in defence of their country, was any thing to be feared from a handful of aliens? it was a reproach to the country to suppose it. if aliens were found to be guilty of seditious practices, let them be restricted; but not placed under an arbitrary authority. he never wished to see the government of this country in such a situation. our situation, said mr. s., is not like that of the directory of france, whom all of the nation are cursing; we have, therefore, no necessity for the strong measures adopted by them. but if gentlemen were determined to arrest every alien in the country, let them bring forward a resolution of that kind; but, in making regulations against alien enemies, let us not subject every foreigner who comes to this country, however well intended he may be, to the fear of a dungeon or removal. if gentlemen wished to make the resolution more general, and to provide for cases, in which war was first declared by this country, though he had before said he did not think it necessary, he had no objection to indulge them, by inserting the words, "between which and the united states there shall exist a declared state of war." but unless the united states were inclined to assume the character of the turks or arabs, such a regulation as was recommended by the gentleman from connecticut could not be adopted. mr. allen had no particular anxiety that the resolution should pass to the extent which he had proposed. if gentlemen did not think it necessary, he should not persist in it. he was sorry the gentleman from massachusetts should have discovered in him any disease of body which was capable of giving rise to personal fear. he believed he possessed as little as most men. as to the necessity of the measure which he had proposed, he would mention two circumstances which led him to think it necessary. a person in this city, who has too respectable a standing, and who is doing too much business in it, has declared that he wishes to see a french army land in this country, and that he would do all in his power to further their landing. he had heard nearly the same thing from another quarter. he thought, therefore, that there ought to exist a power which should be able to send such persons out of the country. not that he was himself either afraid of being assassinated or having the city burnt. but the chairman of the committee had said, that this subject was yet before them. this he did not know, before the gentleman said so; for, having made a report upon the subject, he supposed that they had done all they intended to do upon it. mr. dana was opposed to this amendment. he thought the provisions of this resolution ought to be made definite, as it contemplated regulations which congress would be willing to have in existence at all future times; and though the principle upon which the residence of aliens was regulated is laid down in the law of nations, as it relates to monarchical governments, yet, in this country, where the sovereignty of the country is vested by the constitution in congress, these regulations must be fixed by law. the danger of war with which the country was threatened had forced the subject upon congress at this time, and this being the case, he was desirous of adopting some regulations of a permanent nature respecting it. if any other regulations were necessary with respect to our present situation with france, he thought they ought to be made special and temporary. mr. allen withdrew his amendment; when mr. otis's proposition returned, the question on which was put and negatived-- to . mr. sewall made the motion which he had suggested when he was last up, viz: to add the words, "between which and the united states shall exist a state of war." mr. otis hoped this motion would not prevail, as he thought it would deprive the resolution of every good feature which it at present possessed; for it would prevent the exercise of the power in any other case than in a state of war; and as all the expressions were future, it supposed that such a state did not exist at present. he confessed he set no value at all upon any law, unless it was adapted to the present exigencies of the country. gentlemen might talk as they pleased about permanent regulations; he believed they ought to provide against the residence of alien enemies existing in the bosom of the country, as the root of all the evil which we are at present experiencing, and he could not conceive any mode of doing this, but by applying the remedy immediately to the evil. gentlemen talk about a declaration of war. no such thing scarcely ever precedes war. war and the declaration of war come together, like thunder and lightning. indeed, if france finds she can enfeeble our councils by refraining to declare war, and that we will take no measures of effectual defence until this is done, it is probable she will not declare it, but continue to annoy us as at present. he therefore thought, if the select committee had not been ripe for making a report fully on this subject, they ought to have delayed it until they were. mr. sewall explained. mr. sitgreaves said, he had suffered no little from finding the difference of opinion which existed between the chairman of the committee who made the report on this subject, and gentlemen who usually voted with him. he saw that difference of opinion was essential and radical. he did not mean to go into the subject, but merely to make a proposition, and call the yeas and nays upon it. it was to add the words, "or shall declare hostility against the united states." mr. davis moved a postponement of this question till to-morrow, as he wished time to consider of it. he had some doubts as to the constitutionality of such a provision. mr. sitgreaves had no objection to a postponement, if time was wanted for consideration; but he could not see on what constitutional ground this motion could be objected to. mr. gallatin was in favor of the postponement. he would suggest to his colleague that part of the constitution which might be in the way of this motion. a distinction was made by it between actual hostility and war. if it had only gone to have made a difference between declared and actual war, by striking out the word "declare," it would have removed the objection. if there be a difference between a state of war and of actual hostility, there is also a difference in the relation between alien subjects of a nation with whom we are at war, and those of a nation with whom we are in a state of actual hostility. if this distinction be correct, by turning to the th section of the constitution, it is found that the migration of such persons as any of the states shall think proper to admit, shall not be prohibited by congress, prior to the year . he understood it, however, to be a sound principle that alien enemies might be removed, although the emigration of persons be not prohibited by a principle which existed prior to the constitution, and coeval with the law of nations. the question was, therefore, whether the citizens or subjects of nations in actual hostility can be considered as alien enemies. the term "actual hostility," is vague in its nature, and would introduce doubt as to its true import. he should, therefore, be in favor of the postponement, except the mover would consent to have the word "declare" struck out in the way he had mentioned. the question for a postponement was put and carried; and the two first resolutions were referred to a select committee, to report a bill or bills accordingly. friday, may . _presents to ministers._ mr. bayard called for the order of the day on the resolution from the senate granting leave to mr. pinckney, our late ambassador to great britain and spain, to receive certain presents from those courts, on his taking leave. the house accordingly went into a committee of the whole on the subject, and the resolution having been read, mr. bayard moved that the committee concur. mr. mcdowell said, this was a new subject, and, as it struck him, of importance. notwithstanding he felt as much disposed as any member of the committee to do every thing respectful to our late minister to london and madrid, yet, when he looked upon the constitution, and reflected upon the intention of the clause which forbids the receiving of presents by our ministers, and the consequences which must flow from a precedent of this kind, he could not easily bring himself to consent to it, unless some gentleman could show the propriety or necessity of it in a stronger light than he at present saw it. if we allow our ministers to receive presents from foreign courts, on their taking leave, we must also calculate upon giving presents to all the foreign ministers who come here, and these we have every reason to expect, will be constantly increasing. besides, he objected to the principle of these presents. what are they given for? he supposed it was to gain their friendly offices and good wishes towards the country who gave them. he thought this improper; and he believed it would be well now to put a stop to the business, as a fairer opportunity could never occur of trying the principle, for if it ever could be allowed, in consideration of public services, it could not be better deserved than in the present case; but believing the principle to be a bad one, he should, therefore, be opposed to it. mr. bayard said, every constitutional objection must vanish on a single view of the article, because it allows that presents may be received, if the consent of congress is obtained; and, so far from the constitution insinuating that it would be bad policy to allow these presents to be received, it proves that they might be received if inconvenience in receiving them could be avoided. he supposed the constitutional provision was meant to oblige ministers to make known to the world whatever presents they might receive from foreign courts, and to place themselves in such a situation as to make it impossible for them to be unduly influenced by any such presents. indeed, he supposed those presents would produce a directly contrary effect, for when a minister was known to have received a present of this kind, he would naturally be particularly careful of all his actions, lest he should be supposed to be improperly biased. if presents were allowed to be received without number, and privately, they might produce an improper effect, by seducing men from an honest attachment for their country, in favor of that which was loading them with favors; but any evil of this kind was securely avoided by the notoriety of the act. what, said mr. b., is this present? it is a gold snuff-box, a gold chain, a picture, or some trifling thing which could have no possible operation upon any man. it was necessary, he believed, to attend to these little civilities and ceremonies, as the want of attention to them often produced hostility between nations. he had some doubt from the constitution, whether it was necessary in this case, to have applied to congress at all for leave to have received these presents, as the office of this gentleman had expired before they were offered. under the old articles of confederation, a like provision was in being, only that the receipt of presents by our ministers was positively forbidden, without any exception about leave of congress; but their being allowed to be received under the present government, by consent of congress, shows that they might be received in certain cases. he had, indeed, been informed that, notwithstanding the prohibition under the former constitution, presents were frequently received by ministers; for, though persons holding offices were forbidden to receive presents, the moment their office ceased, and they became private individuals, they were no longer prohibited from receiving any presents which might be offered to them. under these circumstances he thought the resolution ought to be agreed to. mr. w. c. c. claiborne hoped the present resolution would not be adopted. when this subject was first brought into view, he felt inclined to favor the request. this first impression arose from his great personal respect for the applicant, and the desire he felt to gratify his wishes. but, upon a little reflection, it appeared to him that policy dictated the propriety of rejecting the present resolution. so far as relates to the constitutionality of receiving the presents in question, he thought no member would join in opinion with the member from delaware last up. by recurring to the letter of the gentleman from south carolina, (mr. pinckney) it would appear that these presents were offered to him when he was about to take leave of the courts to which he was minister. he was, of course, at that time, the minister of the united states, and came within the constitutional prohibition. the prohibition in the constitution appeared to him to be bottomed on sound policy, and of great importance to the security, the happiness, and freedom of the nation. [mr. c. read the clause.] the object of this clause appeared to him very different from what had been stated to be its object by the gentleman from delaware. he believed it was intended to lock up every door to foreign influence, to the influence of courts and monarchies, which could not but prove baneful to every free country. he had been told that it was the custom of europe, when a favorite minister was about to take his departure, not only to present him with presents, but also to confer a title upon him; and if the leave now asked was granted, a precedent would be established which he apprehended would, at a future day, bring the question before congress, whether leave should be given for a citizen of this country to receive a title from a foreign monarch, and thus all the folly and vices of european courts will be brought up for discussion before the congress of the united states; and he had no doubt characters might be found who would desire such a distinction, and others who would advocate the granting of it. on the contrary, he was persuaded that, if the vote of this house negatived the present resolution, no future application would be made on this subject. the reason, in his opinion, which induced the insertion of a clause in the constitution that presents might be received when leave of congress was obtained, was this: that in the course of events, a case might exist, in which it might be proper for a citizen of the united states to receive a present from a foreign government. many, perhaps, might be named; he thought of one: suppose an officer of our navy were to render essential service to the vessel of a foreign power in distress on the high seas, it might be proper, in such a case, for congress to permit the officer to receive any suitable present as a reward for his service and benevolent exertions in the clause of the unfortunate. but, he believed, in all ordinary cases, every present ought to be rejected. mr. otis saw no ground for the apprehensions which the gentleman from tennessee had manifested, as to the effects to be produced by concurring in the resolution now before them. when every present to be received must be laid before congress, no fear need be apprehended from the effects of any such presents. for, it must be presumed, that the gentleman who makes the application has done his duty, as he, at the moment he makes the application, comes before his country to be judged. in the present case, he supposed no idea could be entertained that our minister had not done his duty, or that he had been bribed by a foreign power, as a reason for not granting the request. but it was strange that gentlemen should assert that, if presents were allowed to be received, congress might next be asked to consent to the introduction of titles; for the constitution expressly says, presents may be received, but, with respect to titles, it says, "no title of nobility shall be granted." mr. o. said it was altogether a matter of discretion in the gentleman from south carolina, whether or not he had asked consent to receive the presents in question; for he is at present no officer of the united states, and he might receive them as a private citizen. he believed he had a perfect right to do so, though it might not consist with the delicacy of his character. mr. o. said he had it from the best authority, that, even under the old confederation, though presents were unconditionally prohibited, dr. franklin, mr. jefferson, and mr. laurens, received the customary presents on their departure from the foreign courts at which they were employed. they, to be sure, communicated the fact to congress after they had received them. and they received them for a good reason, because they could not refuse them without giving umbrage to the courts which presented them. he, therefore, thought it very improper for gentlemen to suggest difficulties of the kind which had been brought forward, as if the gentleman making the application was personally concerned--it could not be considered as any object to him. the question was merely whether we would conform or not to the customs and usages of other nations, with the presents in question; in which there certainly could be nothing either dangerous or alarming. mr. macon had no doubt congress had a right to grant leave to receive the presents in question, and believed the determination in this case would fix the usage in future. he believed an application could never be made to the house, in which there could be less objection to the applicant, than in the present case. he was convinced that the gentleman from massachusetts need not to have said that this was no object to the gentleman from south carolina. he was sure no one thought so. he believed it was improper to bring any personal considerations into the question. he was sure there had not been a more popular act done for this country for a long time than the treaty which that gentleman had concluded with spain. but the committee were told that this resolution ought to be adopted, because it was a european custom. if, said he, we adopt this custom, we must adopt another--that of paying foreign ministers who come here. and he owned he should not be willing to see any of them carry off the money of his constituents, because he did not think the conduct of any of them was deserving of such a fee. mr. bayard remarked that the gentleman from tennessee seemed to be greatly alarmed, lest the agreeing to this resolution should destroy the liberties of the country; and that a precedent of leave being given to a minister to accept of a gold snuff-box or a gold chain, should hereafter be brought as a sanction to the granting of titles of nobility. but he asked the gentleman, as a lawyer, whether he conceived that a precedent for granting permission to a minister to receive a snuff-box could be adduced as a precedent for granting titles of nobility? it certainly could not. therefore, as to precedent, the gentleman might feel himself perfectly at ease. there could be no doubt but that the congress of the united states might give their consent to a citizen receiving a title from a foreign power; but he could not apprehend that they would ever do so. was this, then, to be brought as an argument against allowing a gentleman--against whose conduct the most slanderous tongue had never said a word--from receiving the customary trifling presents, on his leaving a foreign court? he trusted not. he allowed it would be a precedent for the future in this respect, and that congress might expect to be called upon hereafter for similar permissions. but he did not think there was any thing alarming in this--the amount would be very trifling; and he did not know that having a few additional gold snuff-boxes in the country could produce any material effect. as to the constitutional question, he thought it was as he had already stated it. mr. venable wished that every thing which was said upon this subject might be said without reference to the gentleman making the application, but that it might be considered as establishing a general principle which was to operate hereafter. it was said that it was necessary to accept of these presents as a point of etiquette, and that refusal to accept of them might give offence. he did not believe this could be the case, as it was well known to the european courts that our government is established on principles totally different from theirs; and when our ministers informed them that their government did not permit them to receive presents, it must be a satisfactory reason for not accepting them. he knew that these presents were sometimes made in pictures, sometimes in snuff-boxes, and sometimes in money. and, said he, if these presents were not sanctioned by custom, would it not appear an indelicate thing to offer these things to a minister of a foreign country? it certainly would. if the origin of the custom was, therefore, a bad one, the united states ought not to adopt it, since they had now the choice of doing so or not. he hoped the united states would always make sufficient provision for their own ministers, and not permit them to receive any thing from a foreign court. a contrary custom, to say the least of it, would prove a very troublesome and disagreeable one. mr. w. claiborne submitted to the gentleman from delaware, as a lawyer, whether the committee could gather, from any thing before the house, that these presents made by foreign courts consisted of chains or snuff-boxes? he owned he could draw no such conclusion for himself. but whatever the present may be, it was immaterial to him in the present question, because he was convinced that nothing which a european monarch had it in his power to give, could lessen the patriotism of our late minister, or alienate his affections from his country. it was not to the amount of the present; and whether it was a snuff-box, or any thing else, which was a thing of no consequence, and ought not to have been named. he objected to the principle of our foreign ministers receiving presents at all from european monarchs. this principle he looked upon as the more dangerous, because it opened an avenue to foreign influence--an influence among monarchs--which has always proved the destruction of republics. mr. thatcher was in favor of the resolution. gentlemen seemed opposed to it on the ground of its establishing a precedent for the future. he did not think this objection well founded; for, as the constitution does not absolutely forbid the receiving of presents, the discussion on the propriety of allowing it in future would not be prevented by the present decision. future houses could refuse or grant leave to receive these presents. mr. t. said, it was the natural right of every citizen who served the country as a minister to receive presents, and the constitution did not absolutely take away the right. he considered the gentleman who now applied to congress as having a natural right to receive a present, except some reason was shown to the contrary. gentlemen allow they know of no special reason; they allow the applicant has done the business with which he was entrusted, well. he supposed, therefore, that gentlemen must themselves vote for it, except they abandon their own ground. mr. r. williams hoped, by the vote of this day, the house would get rid of future applications of this kind. when the subject was first introduced, he was opposed to it; but, if the question had gone off without debate to-day, he intended to have voted for it. from the discussion which had taken place, however, he was convinced it was a subject upon which they ought not to legislate, since the acting upon it would produce greater evils than the constitution had provided against. he believed they ought here to put a stop to the business. if not, he would rather that our ministers should be at liberty to receive all the presents offered to them, than the thing should stand upon its present footing. mr. bayard would tell the gentleman from tennessee on what authority he informed the committee that the presents in question consisted of what he had mentioned. being upon the committee to whom this subject was referred, he made some inquiry as to what were the usual presents from the european courts, and found, that in holland, it was customary to give a gold chain and medal; in france, a gold snuff-box; and in spain, a picture. it was on this ground that he said these things were of no consequence. mr. b. then remarked, upon what had fallen from mr. r. williams with respect to the expense incurred in discussing this subject, and said it had been owing to gentlemen opposing the resolution that so long a discussion had taken place. as to the law which that gentleman proposed to introduce, he must see that the constitution would not admit of such a law. mr. rutledge said, that, being closely connected in the bonds of friendship with his colleague, who made the present application, he did not intend to have said a word upon the subject; but, when he heard things of a personal nature introduced into the debate, he could not avoid rising. and, with due submission to the chair, he must say, that every thing of a personal nature, introduced on this occasion, was, in his opinion, wholly out of order; particularly when it was said by a member, "if the gentleman from south carolina is not satisfied with what he has received for his services, i am willing to pay him more." the constitution has said, that the customary presents from european courts shall not be received without the consent of congress; and, accordingly, when these presents were offered his colleague at the two courts at which he was minister, he declined receiving them, saying, that he would lay the matter before congress on his return home. he had done so, and he could not see any ground of alarm in this. he felt none of that republican jealousy which caused his mind to revolt at these civilities. he rose to dissipate, if possible, those ideas of danger which seemed to be apprehended from the adoption of the present resolution--the apprehension that it would break down the barriers which were to keep out corruption from our government, and introduce a variety of evils. mr. gallatin said this question might be considered either as of a personal, or of a general nature. he had heard gentlemen, arguing both in support of and against the resolution, speak of the important services rendered by the gentleman from south carolina in having accomplished the treaty with spain. nor did he conceive this to be out of order. he believed, however, the gentleman himself was perfectly indifferent as to the fate of the question. mr. g. had some doubt with respect to the construction of the constitution on this point. if he was well acquainted with the fact relative to this business, it stood in this way: when mr. pinckney was sent as envoy extraordinary to spain, he still remained minister plenipotentiary at the court of great britain; therefore he was altogether precluded from accepting of the present offered to him by the spanish government on his taking leave from that court; but, with respect to the present offered to him by great britain, it appeared to him that the moment a minister receives his letters of recall, and has taken his leave, he is no longer an officer of the government; and, in such case, both under the present constitution, and under the old confederation, presents have been received. so far, therefore, as relates to great britain, he did not think it was necessary to apply to congress for their consent. he had said, that after a minister has received his letters of recall, there was nothing to prevent him from accepting of a present. he might be told the constitution is lame in that respect; but it was more so with respect to private citizens, because any private citizen might receive either presents or titles from a foreign power. it has not, therefore, effectually shut out corruption. officers may receive presents by consent of congress; but any officer, or member of congress, might accept of presents, either in secrecy, or wait till they are out of office and receive them publicly. nothing could prevent this but the infamy that would attach to such an act. therefore, so far as it was contended that a disagreement to this resolution would shut out a source of corruption, it had little effect upon his mind. but there was another point of view on this subject, which would induce him to give his vote against the resolution. he considered that if congress gave its assent to this proposition, it would be saying that they approve of the act, and that it is in itself proper that a foreign minister should receive presents. if it was, in their opinion, proper to accept of these presents, the resolution would be affirmed; but if they were of opinion, that the practice is a bad one; that it is useless in itself, and ought to cease, they had nothing to do but refuse to authorize it. he owned it was proper to keep up civilities, when it could be done by conforming to custom of an inoffensive nature; but when the constitution stood in the way, it ought always to be respected. the question on the resolution was put, and negatived-- to . the committee then rose and reported their disagreement to the resolution of the senate; when the question was taken on concurring with the committee of the whole in their disagreement, and decided in the affirmative--yeas , nays , as follows: yeas.--george baer, jun., david bard, bailey bartlett, lemuel benton, thomas blount, richard brent, nathan bryan, stephen bullock, dempsey burges, thomas claiborne, william charles cole claiborne, john clopton, thomas t. davis, john dawson, john dennis, george dent, lucas elmendorph, thomas evans, william findlay, john fowler, albert gallatin, james gillespie, john a. hanna, carter b. harrison, jonathan n. havens, joseph heister, walter jones, matthew locke, matthew lyon, james machir, nathaniel macon, blair mcclenachan, joseph mcdowell, john milledge, anthony new, josiah parker, james schureman, thompson j. skinner, william smith, richard sprigg, jun., richard stanford, thomas sumter, thomas tillinghast, abram trigg, john trigg, phillip van cortlandt, joseph b. varnum, abraham venable, and robert williams. nays.--john allen, abraham baldwin, james a. bayard, david brooks, john chapman, samuel w. dana, william edmond, abiel foster, dwight foster, jonathan freeman, henry glenn, chauncey goodrich, roger griswold, william barry grove, robert goodloe harper, william hindman, david holmes, hezekiah l. hosmer, james h. imlay, samuel lyman, william matthews, daniel morgan, lewis r. morris, harrison g. otis, john rutledge, jun., samuel sewall, william shepard, thomas sinnickson, samuel sitgreaves, nathaniel smith, samuel smith, george thatcher, richard thomas, mark thompson, john e. van allen, peleg wadsworth, and john williams. saturday, may . _additional revenue._ on motion of mr. harper, the house went into a committee of the whole on the report of the committee of ways and means, mr. dent in the chair, when the three following resolutions being read, viz: _resolved_, that it will be expedient to raise an additional revenue of ---- dollars annually, by a direct tax. _resolved_, that the said tax ought to be laid by uniform assessment, on lands, houses, and slaves. _resolved_, that the apportionment of the said tax ought to be made among the several states according to their respective number of inhabitants, as ascertained by the last census. mr. harper moved to fill the blank in the first resolution with two millions. the question was put and carried-- to . the resolution was then agreed to as amended, as was also the second. the third resolution being under consideration, mr. dayton moved to strike out the words "last census," as it might be determined when the bill came in whether the number of inhabitants should be ascertained by the last census, or a new one should be taken. mr. bayard said, the words of the constitution were, "within every term of ten years;" so that a greater period than ten years could not be suffered to pass without taking a census, but it might be taken every year if it were necessary. he believed it would be very proper to have a new census taken before the tax was assessed, otherwise from the great increase in the population of some of the states, since the last census was taken, the tax would not be constitutionally collected, since it is directed to be laid according to the number of inhabitants. mr. harper said, he should be glad to see a new census taken at an early period, so as to relieve the states from any inequality which might arise from the variation of population which has taken place since the last census; but he trusted it would not be thought necessary to do this before the proposed tax was assessed. the carrying a law of this kind into effect, let it be done in whatever way may be adopted, would be found a tedious business, and the amount to be produced by it, would have to be anticipated by loans; and if a new census was to be taken before the tax could be assessed, it could not be said, with any kind of certainty, when an effectual revenue was to be raised. he hoped, therefore, when so great an inconvenience would be incurred by delaying the tax until a new census was taken, that, though for one year some of the states would have to pay a little more than was justly their portion, they would consent to do so rather than subject the country to so great an inconvenience as would be experienced by such a delay. mr. j. williams supposed, if the amendment obtained, the tax must be apportioned according to a new census; and, if so, he apprehended the resolution would be disagreed to. though a new census might be taken within the ten years, he believed that term ought to be nearly expired before a census was renewed. it was true that some of the states are greatly increased in population; but it could not be supposed that states increased in riches in proportion to their increase of inhabitants, as the people who emigrate are mostly persons of little property, who settle upon the back lands. this being the case, he thought it was a wise provision of the constitution which directs that the census shall be taken only once in ten years. if these words were struck out, no tax ought to be laid until the time comes for taking the new census. mr. bayard would not be in favor of striking out these words, if he thought it would prevent the collection of the tax; but it would be necessary, before the tax could be laid, that an assessment of lands, houses, and slaves, should be made, and he could not see why the number of inhabitants could not be ascertained at the same time. mr. r. williams wished to know whether the new census proposed to be taken was to affect the representation as well as the tax? mr. dayton answered in the affirmative. the return of the enumeration of the inhabitants, he said, might be made at the first meeting of the next congress, by which means the number of representatives to which each state will then be entitled might be ascertained in time for the succeeding election. if the order was not made at this session for taking a new census, the enumeration could not be returned before the last session of next congress, which would be too late for the election of the following congress. mr. sitgreaves said, it would be better for the mover of this amendment, and others who wished to have this tax collected, to suffer the resolution to stand as at present, so that the tax might be immediately assessed by law, and provide at the same time for taking a new census, which no one would object to; and, if it could hereafter be shown that the new census could be taken without prolonging the collection of the tax, it might be done; if not, the tax must be laid according to the present census. the best way would be to strike out the resolution altogether, and then make a provision for taking a new census. mr. dayton consented to vary his motion so as to meet the ideas of the gentleman last up, by adding after the word "that," in the first line, "until a new census shall be taken," and to the end of the resolution these words: "and that provision ought to be immediately made by law for taking a census of the inhabitants of the several states, agreeably to the constitution." mr. gallatin believed this amendment consisted of two parts; he therefore called for a division of it. he should vote in favor of the first. the other part he thought perfectly a distinct subject, and not at present under consideration. if a new census was to be directed to be taken, he thought it ought to be done in a separate bill, and not entangled with this subject. the question on the first part of the amendment was put and carried, without a division. on the second, some observations were made, chiefly expressive of a wish to have the provision for a new census separate from the present subject; after which the question was put upon it, and carried, to . the committee then rose, and reported the amendments to the resolutions as agreed to; which being confirmed by the house, mr. d. foster moved to strike out the word "annually" in the first resolution. mr. gallatin was in favor of the motion. it was his intention to have made some general observations on this subject whilst under consideration in the committee of the whole; but whilst he was putting down some figures on paper, the question was taken; as they would be equally applicable, he should now make them. they would go to show that this tax was not wanted as a permanent revenue, but solely to meet the present exigencies. he should show that the present revenues of the union are sufficient to meet the current expenses, and to meet the instalments of deferred and dutch debt due after the year . the report of the secretary of the treasury states that it is probable there will be a deficiency of $ , , ; but supposing that, from the present situation of the country, our expenses may be greatly increased, and our revenue defalcate, the certainty of a great augmentation in the ordinary expenses by the deferred debt, and the increasing instalments of the foreign debt, the committee of ways and means do not think it safe to contemplate an additional revenue from permanent sources of taxation to a less amount than two millions of dollars. in looking into the statements of the secretary of the treasury, it would be found that most of the objects of expense brought forward to show the necessity of a permanent tax are of a temporary nature. he has estimated the expenditures for the year to be $ , , ; in order to ascertain what will be the permanent expenditures of the union after the year , it is necessary in the first place to deduct from the sum those items which are not of a permanent nature; and, as he would add a sum for the dutch debt due after , mr. g. said he would also deduct the instalment of $ , due for the present year. the first item of a temporary nature was a sum reported for deficiencies in the military establishment of $ , . every gentleman who had attended to this subject, when it was lately before the house, must be convinced that sufficient sums had been appropriated under this head, and that deficiencies must be considered as extraordinaries not likely again to occur. second, $ , were set down for diplomatic expenses; the permanent establishment was now fixed at $ , , and $ , , therefore, were a temporary expense. finally, the following items were stated by the secretary himself as temporary, viz: for light-houses, in addition to the usual appropriation, for expenses incident to the treaties with great britain and spain, and for reimbursing the unfunded and registered debts, and for the payment of old accounts, a sum of $ , . the last item not yet agreed to by this house. these several articles amount to about $ , , which, deducted from the expense of , as calculated by the secretary of the treasury, will leave a balance of about $ , , for the permanent ordinary expenses, civil, military, contingent, and relative to the present debt. to this must be added $ , , for the interest and extinguishing annuity of the deferred debt, payable in , and also the sum necessary to pay the principal of the dutch debt after that year. the committee of ways and means have reported the foreign debt which will become due in , and ; but, by taking the aggregate of all the years, it will be found that an average sum of $ , a year will pay the whole of that debt in twelve years. this last item, the $ , , for the deferred debt, and the $ , , for ordinary expenses, makes the aggregate of $ , , for the permanent expenditures of the union after the year , including provision for paying the whole of the principal of the foreign six per cent, and deferred debt according to contract. this, in time of peace, would be the extent of our expenses, especially as there are a number of items which might be reduced, and in that calculation no reduction is introduced in the naval, military, or diplomatic departments, or in the civil list. if the current revenue be examined, it will be found to exceed this amount. the amount of revenue, as calculated by the secretary of the treasury, for the present year, is $ , , . but to this must be added the deduction of $ , , which he has made from the duties on imposts and tonnage, from an apprehension of a defalcation in this part of the revenue, on account of capture, and which was of course to be considered as temporary. to this there should also be added the duty on salt, laid at the last session, which could not make any part of this estimate. that duty was eight cents per bushel, and calculating the quantity of salt imported at three millions of bushels, it will amount to about $ , . there was also a number of additional duties, laid during the last session of the last congress, which would not raise less than $ , , viz: two and-a-half per cent, on all white cotton goods imported, and an additional duty on tea, brown sugar, and molasses. these two sums make $ , , and added to the above $ , , deducted this year on account of captures, would make the permanent revenue, in time of peace, equal to $ , , , which would exceed our expenses by $ , , . this is clear from the papers before the committee. it was suggested that some of his deductions for expenses were improper, or that he might be mistaken in his expectations of revenue on some items, yet this surplus million, which was equal to one-eighth of the whole expenditure, would certainly cover any mistakes of that kind. besides, there is every reason to believe some of the branches of the revenue will be more productive, on account of the increase of population in , than now. mr. g., therefore, agreed with the gentleman from massachusetts (mr. varnum) that the present revenues of the nation are equal to all its expenditures, including therein the redemption of the public debt, except in case of war. the gentleman from maryland (mr. smith) seemed to be of the same opinion, and, indeed, the chairman of the committee of ways and means had formerly made a similar declaration. it would, therefore, be improper to vote a permanent tax, when the objects for which it was wanted were not of a permanent nature. two years ago, mr. g. said, he was in favor of a permanent land tax, as he then thought it would be wanted to meet the demands which would come against the government in the year . he was of that opinion, because he did not wish to see the list of indirect taxes swelled beyond what it was; but congress were of a different opinion, and had, since that time, laid indirect taxes on salt, sugar, stamps, &c., to the amount of $ , a year, and have so far diminished the necessity of a direct tax. there was another thing in which he had been agreeably disappointed. the mistake was common to almost every individual, as well as to himself. it was in relation to the amount of duties which would probably arise from imposts and tonnage, and which were productive beyond the most sanguine expectations. the estimates of the secretary of the treasury then fell short of the real amount by upwards of a million of dollars, and the same thing had taken place last year. if, however, in the year , a diminution should take place in the product of those duties, the land tax might then be made permanent. mr. g. concluded by saying the tax of two millions was already agreed to for one year, though he thought it too large a sum. he could see no objection to its being made an annual tax as in great britain, as it could not be doubted that if the money was wanted for another year, the act would be annually renewed. mr. harper confessed himself very much alarmed at this motion. he saw in it, and in the arguments of the gentleman from pennsylvania in support of it, the second leaf of the book for keeping this country in an utterly defenceless state--and another attempt made to render those measures which had been taken nugatory, by effectually tying our hands; and therefore it was that he saw this motion made with grief and astonishment, by his friend from massachusetts, whose motives he could not suspect. the gentleman from pennsylvania, said mr. h., reasons as if we were in a state of profound peace, and as if we had nothing to apprehend from abroad; as if all our disputes were settled, and we had nothing to do but pay the expense of the preparations of defence gone into, and then at all future times we should rest in security. this was the basis of his speech, and he could not entertain so low an opinion of his understanding as to believe he thought it a good one. that gentleman must know, every one must know, that this country is not in a settled state of things, but that we are threatened, and speedily, with a war. no longer ago than yesterday the house was informed that our ministers had presented their final memorial, and that if they did not soon receive an answer to it, they should give up their mission and return home. far from desisting from her attacks upon our commerce, france goes on increasing them. her former violations of right have been greatly increased. they had been told by the papers on the table of the subjugation of our country, of the fate of venice and of hamburgh. she talks of sending frigates against us, of ravaging our coasts; she has spoken of internal divisions, of a party in this country on which she can rely. we had heard, though not officially, that orders had been issued for taking all our vessels, and executing our citizens as pirates, yet gentlemen sit down with counting-house exactness to calculate the amount which it will take to defend ourselves. this was, however, perfectly consistent with the rest of the conduct of the gentleman from pennsylvania, because he has constantly set his face against every measure of effectual defence, though he has constantly talked of being willing to concur in what he considered measures of defence. but will the house thus be acted upon? he trusted not. he could not relinquish the pleasing persuasion that a majority of this house is determined to defend this country against a foreign foe, that they are desirous of protecting their property, their wives, and their children, and that they will rend from their eyes the veil which the gentleman from pennsylvania has endeavored to cast over them. that they will defend themselves against a foe who relies upon our weakness, upon our calculations of avarice, upon the exertions of men among us who are to paralyze all our efforts to defend ourselves, and upon a prostrate colonial spirit in this country. the existence of this spirit would be confirmed were the present motion adopted. why? because the complete defence of the country is not to be effected by two millions of dollars. mr. h. recapitulated what had been done by way of defence; but said these amounted to nothing, they were only measures of precaution a commencement of defence, and if those events take place which all think probable, a much larger sum of money will be wanted. mr. h. said it would be seen, by the report of the committee of ways and means, that they did not take into view the expense which might be incurred for the military defence of the country, either by a provisional army, or by detachments of militia. and would any one say that it would be proper to rise without providing a military defence for the country? or could they say that no part of the , militia, ordered to be held in readiness, would not be called into service? or would it be proper to sit down, satisfied that our enemy will not invade us, though they see we are not prepared to meet them? he hoped not. mr. otis wished to inquire of his colleague, before he proceeded to make any observations, whether he would consent to withdraw his motion, and admit of another in its place; but as he did not see him in his place, he would state what his proposition was. he supposed it was the object of his colleague to prevent the tax from being permanent. he knew that gentleman too well to believe he wished to render the tax futile. he proposed, therefore, instead of this amendment, to retain the word "annually," and to add "until all loans that may be authorized by law on the credit of such tax be reimbursed." soon after the late despatches from our ministers were read to this house, and the common sense of the community was convinced of the necessity there was for immediately going into measures of defence, speaking of the agreeable unanimity which seemed to prevail in the house, it was prophesied to him, by men who had been much longer in this body than himself, that, notwithstanding all this appearance, yet certain gentlemen in the house would take care so to embarrass the detail of the business, that they might just as well have refused to assent to the principle. [mr. dana hoped these remarks were not meant to apply to the mover of the present proposition.] mr. o. said he felt some difficulty in speaking on this subject, from the motion coming from the quarter whence it came; but he trusted his friend would not apply these remarks to himself. [mr. venable hoped the gentleman did not mean to insinuate that any gentleman was actuated by improper motives. the speaker said it was improper to speak of motives.] mr. o. added, that his object was to show that the opposition made to this tax would have nearly the same effect as voting against it in the first instance; for he doubted whether a shilling could be got upon it, if passed in this way. perhaps many wish that this should be the case; they may think the money is not wanted. if there was any wisdom in thus acting, he could not see it, and therefore could not give gentlemen that credit for their actions which they may think they deserve. mr. o. expressed his astonishment that gentlemen who were two or three years ago in favor of a land tax, should now be wholly opposed to it. he also added that he had heard another prophecy, which was that many gentlemen who were always averse to a land tax would not now agree to it, but attempt to defeat it, however willing they were to go into measures of defence for the country, when those measures were unconnected with the raising of money. he hoped this would not come true. mr. r. williams observed, it was a fortunate circumstance that the present motion was made by the gentleman from massachusetts, though, even that circumstance could not secure gentlemen from abuse; for though his friends cannot but allow the mover's motives are pure, yet they have imputed the worst views to those who support it. the gentleman from south carolina (mr. harper) has, as is usual with him, consumed one-half of his speech in censuring the conduct of members of this house, because they do not agree with him in opinion as to what is the proper defence of this country, and in recounting what france has done in europe. as to what that gentleman had said with respect to motives, he believed every gentleman had a right to deliver his sentiments freely, without being subject to the lash of that gentleman, or any other. how could it be fairly argued, because gentlemen desired to limit the duration of this law, that they were unwilling to defend their country? no such conclusion could be drawn. he believed the people of this country would always be found ready to defend themselves, as far as their own interests and the interests of the country required; but not to defend other nations. the gentleman from south carolina never spoke on the subject of defence, but he went into europe, to tell the house what was going on there. he thought enough had been said on this subject. the gentleman had talked much of national honor and national dignity; but he wished him to recollect that national honor and national dignity were national interest. but the dignity and honor, which were too often spoken of, were mere phantoms; and what is looked upon as disgraceful in one country, may be looked upon as honorable in another. but the dignity and honor which he spoke of were the same in all countries; they were the interest of the people. he believed that some gentlemen would even account it honorable to go into europe, and endeavor to raise up all the crowned heads which had fallen in the course of the present war. he liked no such honor. the gentleman from south carolina has not only to-day, but often, reprobated the idea of introducing calculation into our debates when measures of defence have been under consideration; whereas it appeared to himself the true ground upon which they ought to act. he believed, if nations in general were to sit down and count the cost before they went to war, one-half the blood and treasure which are now caused to flow, would in such case be spared. wherever a nation was about to enter into a war to support its rights without its jurisdiction, it was perfectly right to sit down and calculate the expense of doing it; he agreed, when a country was attacked upon its own territory, that was not the time to talk about expense. it appeared to him, in such a situation, our defence would not so much consist of money as of individual exertion. in his opinion, free men fought for liberty, and slaves for money. the house was told, that if this money was not wanted, it would be safe in the treasury, or applied to the reduction of the public debt; but he believed it would not be in the power of the gentleman from south carolina to convince him, or the people of this country, that the money will not remain as safe in the pockets of the people, until it is wanted, as in the treasury. he believed the willingness of the people to give the money when it is wanted cannot be questioned; and if that gentleman had all the reliance upon the people which he pretends to have, he would not wish to take their money when he was not certain it would be wanted. as to our late despatches, containing the conversations of x, y, and z, which gentlemen seemed so much to rely upon, he confessed his opinions had not been at all changed by them. he believed, before they were communicated, that this country had been greatly injured by france, and he was not ready to take any step now that he was not ready to take before. he believed that he, and others who voted with him, should be as willing to defend the country, in case of danger, as those gentlemen who are continually raising up military phantoms for the purpose of knocking them down again. he hoped the amendment would be agreed to. a motion was made and carried to adjourn, without the question being taken. monday, may . _presents to ministers._ mr. pinckney said, he rose to request leave to withdraw the resolution which had yesterday been laid upon the table by his colleague, mr. harper, without his knowledge, respecting a business which had already been decided relative to himself, as it was founded upon a ground which was at least doubtful, and he thought out of order. the speaker interrupted mr. p. to say that he would save him the trouble of any farther observations, by saying that he deemed the motion out of order. mr. pinckney hoped, notwithstanding, he should be permitted to make a few remarks on the subject. the speaker replied, that any remarks upon a business already decided would not be in order, and could not be admitted without general consent. a pretty general cry of "i hope the gentleman will be permitted to proceed," being heard, mr. pinckney went on. he said, it was with reluctance he took up the time of the house a moment in a matter relating to himself, particularly at present, when so much important business pressed for consideration; but he wished to state his reasons for wishing this motion to be withdrawn, lest it should seem to have been brought forward by his consent. he was grateful for the good intentions of his colleague, because he doubtless thought the vote which had passed on the preceding day might cast some imputation upon his, mr. p.'s, character. but he also wished it to be withdrawn, because it was founded on at least a doubtful suggestion, viz: that it is not customary for the united states to make presents to foreign ministers leaving this country. he believed it was customary to do so. but another reason for wishing it to be withdrawn was, that the discussion of it might not subject him to a species of trial as to his public conduct, in which he should not be at liberty to make his defence. he should never shrink from any authorized investigation of his conduct; but he should wish to avoid any unauthorized proceeding of that kind. but his principal reason for troubling the house was to assign his reasons for addressing a letter to congress on this subject, apparently of so trifling a nature. with respect to the present offered to him by the court of spain, it would have been improper for him, under any construction of the constitution, to have received it, as he was at that time also minister to great britain. upon this ground it was that he wrote to the spanish minister declining the acceptance of the present offered to him from that court, except he should obtain leave of congress to do so. this being the case, whatever might have been the propriety of accepting of the present offered to him by the court of great britain, there would have been at least an appearance of inconsistency to have received a present from one court and not from the other. he therefore gave the same answer to both. this he hoped would account satisfactorily for having troubled congress with any application on this subject. it was from a respect which he thought due to the court of spain, from the favorable treatment he had received from them, and being fully satisfied with all their conduct towards him, that he thought it proper to make the application. the other, respecting great britain, was involved with it. mr. p. said, he did apprehend there would have been a propriety in this house, at the time they rejected the resolution sent from the senate, to have assigned a reason why they did so. he would say why he thought so. he thought the constitution expressly allows, that, in some cases, presents may be received from a foreign power, but that the power of deciding upon this shall be left in the hands of the legislature, as a check upon officers that they may not improperly receive any presents from a foreign power. but, considering this power to have been intended as a check upon the improper conduct of officers, it must strike the minds of the public when they are told that an officer was refused this privilege, that he had not done his duty, especially if the refusal was unqualified, and unaccompanied with any reason for the refusal, and that the refusal was intended as a censure upon his conduct. it was in this point of view, that he conceived the conduct of the person to whom this privilege was refused, was implicated, without an opportunity of being heard in his defence. he should be far from wishing any resolution to be entered into approving of his conduct; but there was a great distinction between approving and disapproving; between censure and applause; and although he did not desire applause, he could have wished to have avoided censure. all that he wished had been done was, that the house should have stated something of this kind, "deeming it improper that the diplomatic agents of the united states should receive a present from any foreign prince or state, the request cannot be complied with;" as, without this, the natural inference must be, that there has been some misbehavior in the officer, or the usual privilege would not have been refused. he called it usual, because whenever it had heretofore been applied for, it had been invariably granted, and the rejection of the resolution from the senate, must, therefore, be looked upon as establishing an imputation upon his character. it was saying to the world, "every other person in a similar situation, has been permitted to accept of these presents, but you, and you alone are an exception; you cannot receive them." such a person may have been worthy of condemnation; he may have betrayed the interest of his country; but it was injustice to that person to condemn him without a trial. mr. p. said, he thought it necessary, in justice to himself, to make these observations before the house, from a regard which he felt, in common with other gentlemen, for his reputation--more particularly as this matter would appear upon the journals of the house, and might not only reflect upon himself, but upon his children after him; they might be pointed at by the finger of scorn, as the offspring of a man who had betrayed the interests of his country. it was under the impression of these ideas that he had been led to trouble the house, and he trusted he should stand excused for having done so. mr. mcdowell rose, but was prevented from speaking by the speaker, who declared that nothing more could be admitted on a subject which was not before the house. mr. harper rose. he was also checked by the speaker, but not before he had declared he brought forward the motion in question without the knowledge of his colleague. _additional revenue._ the house then proceeded to the order of the day, when the speaker having stated the question to be to strike out the word _annually_ in the first resolution, mr. d. foster rose, and observed that, for a justification of himself to those who knew him, he need not declare that the motion, which had caused so much agitation, was made with good intentions; that it was not designed to embarrass the measures of government, or with a view to prevent a provision of revenue adequate to the present or probable future exigencies; or from any reluctance on his part to concur in every measure requisite for an effectual defence of our country. to the uniform tenor of his conduct, on all occasions, since he had the honor of a seat in this house, he would cheerfully appeal. those with whom he associated knew that nothing was more dear to his heart than the honor, the dignity, the liberty, and the independence of his country. he did not, therefore, consider many of the remarks which had been made on this subject, as applicable to himself, nor should he take any measures whatever to repel them. if his friends intended he should make a personal application, their object was lost. alike indifferent to censure as applause, when unmerited, he had ever done, and, as far as he could be informed, he would continue to do, what, at the time, appeared to be his duty. he was as deeply impressed as any gentleman of this house could be, with a sense of the necessity and importance of sufficient and productive sources of revenue. measures for defence must be expensive; without the means to carry them into effect, all our acts and resolutions are vain and futile. protection to our commerce, defence to our frontiers and sea-coasts, security to our rights as a nation, energy and respectability to the operations of government, are not to be obtained without money, and if the present revenues are not sufficient, more must undoubtedly be provided. although he did not mean to pledge himself that he would vote for it, he should be glad to see a bill before the house, that opportunity might be given to examine the subject in detail. since the motion he had submitted had been thought so exceptionable, he was willing for the present to modify it. if gentlemen would concur with him in a substitute, he would withdraw the motion to strike out the word "annually," and propose to add, as an amendment at the end of the resolution, the following words: "to be collected for a term not exceeding -- years; provided the legislature of the united states shall at all times be at full liberty to substitute other duties or taxes of equal value in lieu thereof, for the purpose of discharging any debts or loans which may be contracted on the credit of said tax." mr. harper rose to second the motion, because it concurred with his ideas on the subject, that the revenues ought to be commensurate with the debts incurred. he need not repeat, he said, that he had always been opposed to a land tax, except in the case of a war, or of preparation for war; but he now believed it necessary. mr. macon hoped this motion would not prevail. in the state from which he came, they had an annual land tax, and found no inconvenience from its being annual. he had no idea of a permanent tax on land, as all the state governments collected their revenues from this source, or from a capitation tax, every other object having been seized upon by the united states. the idea of the tax being laid for a number of years, would make it more unpopular than any thing else. all our revenue laws are temporary. but it was said it was necessary that this tax should be permanent, in order to obtain loans upon it. he believed loans might very well be obtained upon it, though it were passed annually; for certainly those who loaned the government money would have so much confidence in it as to believe that it would pay all its contracts fairly and honorably. he did not believe that all the money appropriated could be expended before the next session of congress. besides, there is a surplus million in the treasury, ready for any purpose which the executive may think proper to apply it to. but it had been said, advantage ought to be taken of the present moment to get this tax. the same thing was said with respect to the navy. he did not think it necessary to take advantage of the present enthusiasm of the people to collect a tax; the people would always obey the laws. mr. findlay said, it was admitted, on all hands, that it depended on a contingency whether this tax would be wanted at all. for his own part he was under no apprehension of any formidable invasion of this country taking place before congress meets again. if france is desirous of making conquests, there are more preferable objects to this country nearer home. the difficulties which have so long agitated europe are not yet so far settled as to suffer france to send out any formidable force here. let the conduct of the french government have been as bad as it can be painted, it cannot be said that it has ever wholly lost sight of its own interest, and it would not be her interest to make an invasion of this country at this time; and, therefore, there is no necessity for going into measures as if an invading army was immediately expected amongst us. a land tax was with him a favorite tax. he had long wished it. he was for adopting it some time ago, and for taking advantage of a low market, to bring up the public debt. but when he came to inquire into the subject, he found that many of the states had laid direct taxes for the support of their own government. there is now an appearance of necessity for this tax; but being a new tax under the general government, and not likely to be very satisfactory to some parts of the union, it would be proper to make the law of short duration. upon constitutional ground he was against continuing a direct tax longer than two years; every congress ought to pass a vote upon it; but, in the present instance, he believed the law would be best if passed for one year. mr. f. concluded by observing, that if this law was passed for one year, he could confidently rely on future congresses to renew it, if the situation of the country should require it. it would not hereafter be convenient for him to take any farther share in the public councils, but he should not distrust the wisdom and patriotism of those who might follow him; and to do away the charges continually made against himself and others, that they were not willing to defend the country, he should call the yeas and nays upon every question of defence which came before the house. mr. s. smith did not like the amendment; but he should vote for it, because, if he could not get all he wished, he would get all he could. if the blank was to be filled with two or three years, (as had been intimated,) it would not go far enough to induce moneyed men to rely upon it as a permanent security. there seemed to be no difference of opinion as to the propriety of laying a direct tax; it only seemed to be as to the length of time which it ought to be laid. he agreed with those gentlemen who assert that money cannot be borrowed, except a permanent fund be provided. but gentlemen say, where are your expenses? certain expenses have been agreed to, which are proposed to be met by a direct tax of two millions; but could it be supposed that the proceeds of this tax could be brought into the treasury in less than eighteen months? they could not, and something must be done in the mean time to raise the money already voted, whether any war takes place or not. how was this to be done? by loans alone. but what inducement will there be to moneyed men to lend money, except a permanent revenue be made the security? you hold out the credit of the united states, which has not heretofore been injured. this is true. but heretofore we have not been engaged in war; we have had nothing to impede our revenue. but if a war takes place, it is possible our revenue may suffer very materially; and congress are about to provide a fund which, in the opinion of some, will leave no permanency, and in the opinion of others, very little. and would it not require a great degree of patriotism in gentlemen to lend twenty shillings for twenty shillings, when they can go into the market and purchase them with sixteen. the difference of opinion on this subject, he was convinced, arose from the different pursuits of the members of that house. certain gentlemen believed moneyed men would advance money without a permanent tax as a security. he believed the contrary; for, however great a confidence they may have in the honor of future congresses, they would wish to see this congress do something for their security. he feared gentlemen were not in earnest when they spoke of defending the country. we have men, said he, but we want money. he did not agree with the gentleman from north carolina (mr. williams) that slaves fought for money, and freemen only for liberty. if he commanded a regiment of militia, he believed they would expect to be paid, and he could not believe he would term them slaves. money must be had. the gentleman from pennsylvania was afraid of making the revenue permanent, because, as our revenue increased, it had been usual, not to repeal our revenue laws, but to increase our expenses. whence did he collect this information? not from the documents on the table; for there he would find that there was an unexpended surplus of one million nine hundred thousand dollars, which were in applied by the commissioners of the sinking fund to the reduction of the public debt. we have, said he, gone on decreasing our expenses. it was true, that our dispute with algiers, and a war with the indians, had cost a great deal of money; but when the war with the latter was at an end our expenses were decreased. and now an income of expense is asked for to repel threatened danger, and gentlemen have voted measures of defence; but now they come to touch the expense, they flinch. men may moralize and talk about defence as much as they please, it will avail nothing without money. mr. varnum hoped the motion under consideration would be negatived. the gentleman from maryland (mr. s. smith) gave two reasons on saturday against striking out the word annually. one was, that it was necessary the tax should have some permanency, in order that money might be borrowed upon it; and another, that it might be a substitute for indirect taxes. that gentleman allowed, and he perfectly agreed with him in opinion, that in case of war, the defalcation in our revenue, he did not suppose, would be large, and that in our present situation he had no idea of a defalcation. if, then, a defalcation of our revenue was not to be expected, he thought he should be able to make it appear that the proposed tax is not necessary at all; and, of course, that it will not be right to pass it for more than one year. but the gentleman from maryland says the people ought to be relieved from indirect taxes, because, for every - / per cent. duty, the consumer pays - / . does that gentleman wish, then, that the merchant should be deprived of a profit of per cent. on the duties which he now pays? if so, this might be very well effected, without doing away the duty, and substituting a land tax in its place, by the merchants lowering the price of their goods per cent. but the gentleman added another reason for passing the law for a number of years, viz: that this tax might be at any time repealed. but, although this house might consent to a repeal of this tax, it was by no means certain that the other house would consent to its repeal. indeed, it was his opinion, that if this tax was established as a permanent tax, that the people of this country would not be relieved from it for many years. many objects, he had no doubt, would be found out by gentlemen, ever fruitful in this respect, upon which to expend any surplus which might arise from this tax. the gentleman from south carolina, on saturday, brought into view our situation with respect to france, and our liableness to an attack from that nation. he alluded to the conversation which took place between our envoys and x, y, and z, and thence inferred that it was probable that this country would be attacked by france. he could not say that all the propositions made by these unauthorized persons were not from the directory; but there was no evidence of this, and therefore he could not believe it, especially as the agents themselves declared they were not. he thought, therefore, if we wished to preserve peace with france, that we ought not to be too forward in believing all which was said by x, y, and z, was authorized by the french government. he hoped it would prove to be the contrary, and that when the directory shall discover what has been done, they will punish these persons for their conduct. the question was put and negatived-- to . mr. d. foster then renewed his motion to strike out the word "annually," which was carried, there being sixty votes for it. the question on the amendment providing for the taking of a new census, was put and carried, there being votes for it. mr. read moved an amendment, which went to strike out the provision which proposes that the tax should be laid by a uniform rule through all the states, with the view of inserting in its place the following words: "and upon such other estates within each particular state as are taxable according to the established rule of direct taxation in each state." the motion was negatived, there being only twenty-one votes for it. the report was referred to the committee of ways and means, to report bills accordingly. tuesday, may . _naturalization law._ mr. sewall called for the order of the day on the third resolution reported from the committee of the whole, on the subject of aliens, and the consideration of the following amendment being resumed, viz to add to it these words: "between which and the united states, there shall exist a state of declared war:" it was agreed to; and referred to the select committee on commerce and defence, to report a bill accordingly. the following is the resolution as amended by the house: "_resolved_, that provision be made, by law, for the apprehending, securing or removing, as the case may require, of all aliens, being males, of the age of fourteen years and upwards, who shall continue to reside, or shall arrive within the united states, being natives, citizens, or subjects, of any country between which and the united states there shall exist a state of declared war, or the government of which shall threaten, attempt, or perpetrate, any invasion or predatory incursions upon their territory, as soon as may be, after the president of the united states shall make proclamation of such event; providing, in all cases where such aliens are not chargeable with actual hostility, that the period settled by any treaty with such hostile nation, or other reasonable period, according to the usage of nations, and the duties of humanity, shall be allowed, for the departure of such aliens, with all their effects, from the territory of the united states; and excepting all cases of such aliens to whom passports or licenses of residence may be granted, consistently with the public safety." thursday, may . _provisional army._ general sumter's vindication of the south carolina militia. this favorite scheme of raising a standing army must be pushed forward by every aid of fact and fiction, and that its success may be insured, the southern members are to be terrified into its adoption, for we are told that the southern states have much to fear, that there is every reason to believe the southern states will be speedily invaded by a merciless and vindictive foe from the west indies. that at this moment thousands may be disgorging on our shores; that they are prepared to strike. and the gentleman from south carolina (mr. harper, one of his colleagues) has, in the height of his zeal for american defence, or his fears for the safety of the southern states, or from some other cause, which he did not pretend to divine, by his nice and minute delineations of the condition of the southern states, shown to the house a terrifying picture of southern imbecility, and had also published to this cruel, malicious, and insidious enemy, (as he terms them,) an enemy sufficiently penetrating without his aid, every point, every avenue, every position, most advantageous for them to take in attack; he has exposed our most vulnerable parts to their inveteracy, and our wealthiest part to their rapacity. the policy or prudence which dictated the detail, he did not stop to examine, but went on to ask, supposing these marauders were disposed to invade the southern states, whether it would not be allowed that they were too fully and completely occupied nearer home, to be at liberty to execute at this time their intentions of such an invasion? for his part he thought such was their condition, and expected it would continue to be so for some time to come; but, admitting that it is possible for the man who has been mentioned, to invade our coast with the three or four thousand men spoken of, the consequences predicted are not likely to follow. the reasoning of his colleague being admitted, perhaps his conclusions might also; but the former not being just, the latter could not result. he was aware that the number of inhabitants of the lower country, of the states of georgia, south carolina, and north carolina, as stated by his colleague, was not very great; but he did not consent to the deduction which the gentleman had made, that, therefore, the lower country was very weak in point of force to oppose an invasion. and here he deemed it proper to notice the attempt which had been made to draw invidious distinctions between the militia force of our country and what are termed regulars--attempts constantly made by the advocates of standing armies, not only on this occasion, but on many others--not only on this floor, but in the other branch of the legislature, and very lately, in a pointed manner, by his colleague, (mr. harper,) who pressed the establishment of a standing army by depressing the manly character of his fellow-citizens: he (mr. harper) had said he was well acquainted with the southern states; that the inhabitants on the seaboard are few, that for fifty or sixty miles they are still fewer, that the strong population is quite remote, that the whole in general are badly armed, many altogether without arms; that they are not well organized, and even if they were, they are not to be depended upon, unless headed and aided by regular troops; in short, that no good can be expected from the militia, unless they are supported by regulars. it is an unpleasant thing, said mr. s., for me to have to make any remarks on a subject of this sort; but so frequently have gentlemen made invidious distinctions between the courage and efficacy of militia and regulars, and with so much injustice to the former, that i cannot permit their assertions any longer to pass without notice. for doing this, i do not mean to derogate from the merit of the late american regular army, nor more particularly from that part of it which served to the southward, of whose condition i can better judge than of that which served in the middle and eastern districts; as to them i am bold to say, they were not inferior, under all circumstances, to any army of equal numbers and equal opportunities which i have heard or read of in any time or in any place; but, then, it must also be remembered, whatever gentlemen may here say to the contrary, that the militia were as serviceable and as successful as any regulars whatever. he said he would take a cursory review of the services of the militia in one of the southern states, which would tend to support his last declaration. he would quote only a few cases out of a great number where the militia had acted alone, without any co-operation or support from the regulars, and that against the veteran and conquering cavalry and infantry of british corps, and in which actions they were distinguished for their bravery and success. it may be remembered that very partial, if any, impressions had ever been made by our regular troops on the british corps of cavalry during the early period of war; and it seemed to be reserved to the southern militia to convince them that their equals existed in our country. it is not to be attributed to the want of courage or discipline in our regular corps that this had not been done before, but to imperious circumstances which no skill could overcome; but this did not change the fact. after the fall of charleston in , the first action, and that fought by the militia, without any aid from our regulars, was the action of fishing creek, where, without entering into a minute description of all the circumstances attendant on such an occasion, it will be sufficient to say, that the gallant captain rooke, who commanded a squadron of tarleton's legion, fell, and the whole force was beaten and dispersed. a few days after--and here permit me, said mr. s., to remark, that if my colleague does not remember, and our historians have neglected to record the achievements of the militia, yet justice is in some degree done them by a british historian, who was an officer in the british service in that part of our country, and at the very time i am speaking of, who corroborates my facts--a few days after an attack was made by the militia on rocky mount, and colonel turnbull, who commanded the enemy's force, and who is now in new york, i have no doubt has candor enough to acknowledge, that from the contest he had with them, (although strongly defended by well constructed works,) and which lasted ten hours, there is something due to their bravery and the effect of their arms. eight days after the affair on rocky mount, an attack was made on the british at their posts of the hanging rock. the force on this occasion consisted of the same corps of south carolina militia who had enterprised on the other occasion; they were in number about ; they had been joined by a few of the militia from north carolina, and it is a pleasure to reflect on the cordiality and bravery displayed by them on this occasion. the enemy's force at this post was , effectives; yet the result was, after an action which lasted through the greatest part of the day, that major bryan's corps was totally defeated, the prince of wales' regiment exterminated, even its name has never since been recorded. other detachments from the d and st, under the command of major camden, were also cut up, driven from their encampment with the entire loss of baggage, &c.; and, in the course of this action, captain kinlaw, with a squadron of tarleton's legion, arrived from rocky mount, made a desperate charge on the militia, was repulsed by them, and fled to camden, without attempting to renew the combat. in this, as well as other actions, it ought to be remembered how many field officers, brave captains, and other officers, as well as valuable citizens, fell, or were wounded, while another nation had to regret in this action alone the loss of upwards of men. passing by a number of important and considerable conflicts which took place between the british regulars and the southern militia, still unsupported by regulars of our own army, said mr. s., i come now to mention the attack which was made in the neighborhood of winnesborough, while lord cornwallis laid in that town, upon the south carolina militia, by a british regular force under majors wymes and mccarthy, supported by two troops of cavalry, the whole corps drawn together and formed for the purpose; after various charges made by the infantry and cavalry, and after repeated repulses, the enemy was totally repelled, their commanding officer wounded and taken, together with a number of his corps, and the rest were dispersed. on the return of colonel tarleton to winnesborough another effort was made, and from the number as well as the nature of the troops employed, it was certainly intended to be effectual in driving the south carolina militia from that part of the country; for it was tarleton's legion, mccarthy's corps, and that part of the d, under major money, which troops were led to the attack of the militia on the th of november; the result of this action is known to those who do not wish to detract from the merit of the militia. the enemy's detachment consisted of legionary horse, and upwards of regular infantry, with two field-pieces; the militia were between five and six hundred, without (as indeed they were through all the actions i have described) a single piece of artillery. in the number of militia are included some georgians, who not only acquired honor to themselves from their exertions on that day, but did honor to their country. the fate of the british cavalry was then decided; they had been formerly unconquerable, but after that day they were never known to be brought to act with either energy or effect. knowing the ardor and firmness of the southern militia, and not doubting but the militia of the several states in the union possess equal motives for their exertions, equal spirit and activity, i cannot, said mr. s., but rely on them as the natural and main support of our national independence--a support fully effectual without a recurrence to a standing army. these few cases, and it is stopping very short indeed of what the merits of the southern militia deserve, tend to show that the charges brought against the militia generally are as unfounded as they are cruel to their feelings; while, at the same time, they demonstrate, that if an invasion (which is a contingency by no means likely to happen) should actually take place, we may rely with confidence on the manly exertions of the militia to meet the attack, and to resist every effort, at least for such a period as until more effective aid shall be drawn down to their support, and more permanent measures adopted. the question for striking out twenty thousand to insert five thousand, was put and negatived-- to . the question now returned upon striking out twenty thousand to insert ten thousand. mr. n. smith hoped this amendment would not be agreed to. it was contemplated, when this reduction was proposed, that the power should be given to the president for three years; but it was now restricted to the recess of congress. he did not himself think that at present there was any danger of an invasion, nor did he believe that imminent danger of an invasion would exist, whilst the war continued between france and england; but, whenever a peace shall take place between those two powers, the question ought then to be taken whether this country ought not immediately to go into preparations for war; and if congress were not in session at the time, the president ought to have the power of determining this question. it will depend on several circumstances; on what kind of peace was made; upon what ground parties stood when peace was made; on the situation of france at the time; on what kind of men are in power; on the situation of this country; on what is the state of parties here at the time; what is the number of those who are opposed to the government; how many there are of those who wish to lull the rest to sleep; and what is the amount of spies in the country. all these will be important considerations to be decided at the time, and if it shall then appear that imminent danger does exist, will twenty thousand men be too large a number to raise? he believed not. the question for striking out twenty thousand, and inserting ten thousand, was put and carried, votes being in favor of it. the question next came up on agreeing to the section proposed by the select committee, for authorizing the president, from time to time, as he shall deem it necessary, to call forth in rotation such portion, not exceeding at any one time the number of twenty thousand men, of the detachments of the united states, authorized by the act of the th of june last, as may be conveniently mustered together, and cause them to be trained and disciplined by their proper officers, either in their respective states, or in one corps, to be drawn from two or more adjoining states, for a term not exceeding ----; for which time the officers and men shall be considered as in actual service and be paid and governed accordingly. after some discussion, in which constitutional objections were urged against this provision, the committee rose without taking a question upon it, and the house adjourned till monday. monday, may . _provisional army._ the house again resolved itself into a committee of the whole on the bill for authorizing the president of the united states to raise a provisional army; when, the question being put on the section providing for the calling out , militia at a time, to be trained and disciplined, it was negatived, there being only votes for it. this section was objected to on the ground that the constitution has placed the training and disciplining of the militia in the several states, and that congress had power only "to provide for calling forth the militia to execute the laws of the union, suppress insurrections, and repel invasion; reserving to the states respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress." mr. sewall moved to fill the blank in this section with $ , . he supposed $ , or $ , would be sufficient for purchasing the accoutrements mentioned; the remaining $ , or $ , would be ready in the treasury in case of emergency, for the other purposes of the act. this mode of proceeding was objected to. it was thought by some that it would be best to appropriate only for the purchase of the articles specified, and provide for the whole expense of carrying the act into effect in one sum, either in this law or some other; but it was finally carried as it stands, and the blank was filled with , dollars. the last additional section proposed for exempting private soldiers from arrest for debt or contract, during their term of service, was then agreed to. friday, may . _call of the house._ the speaker informed the house that the hour was arrived at which a call of the house was ordered to be made, and that the clerk would accordingly proceed to the call. the call was accordingly made, when it appeared that members were present, which, with members absent on leave, and sick, made up the whole number of members.[ ] _provisional army._ the bill authorizing the president of the united states to raise a provisional army, was read the third time; when mr. mcdowell moved to postpone the question on the passage of this bill till tuesday next. information had been received from europe, and was entered on the coffee-house books of this city, that our commissioners had been received by the executive directory; and that the persons who had held authorized conversations with them on the subject of bribes, &c., were imprisoned. he could not say that this information was true; but, if it were, our differences with the french republic may probably be amicably accommodated, and there may be no necessity to pass this bill at all. he hoped, therefore, the postponement would take place. mr. sewall should be sorry if a motion of this kind were to receive any attention from the house. if negotiations were opened with the french republic, they might not very soon be concluded. what appearance would it have to the nations of europe, if, after all the insults and injuries we have received from the french republic, the moment congress heard in an indirect, uncertain way, that they had deigned to receive our ministers, they stopped their proceedings in all measures of defence. a more unfavorable appearance, in his opinion, could not take place. it ought to be recollected that the army proposed to be raised was a provisional army, and would not be raised, if the contingencies therein named, did not take place. the question for a postponement was put and negatived; there being only votes for it. the question on the passing of the bill was then taken, and stood--yeas , nays , as follows: yeas.--john allen, george baer, jr., bailey bartlett, james a. bayard, david brooks, stephen bullock, christopher g. champlin, john chapman, joshua coit, william craik, samuel w. dana, john dennis, george dent, william edmond, thomas evans, abiel foster, dwight foster, jonathan freeman, henry glenn, chauncey goodrich, roger griswold, william barry grove, john a. hanna, robert goodloe harper, thomas hartley, william hindman, hezekiah l. hosmer, james h. imlay, john wilkes kittera, samuel lyman, james machir, william matthews, john milledge, daniel morgan, lewis r. morris, harrison g. otis, josiah parker, john read, john rutledge, jr., james schureman, samuel sewall, william shepard, thomas sinnickson, samuel sitgreaves, nathaniel smith, george thatcher, mark thomson, thomas tillinghast, john e. van allen, peleg wadsworth, and john williams. nays.--abraham baldwin, david bard, lemuel benton, thomas blount, richard brent, nathan bryan, dempsey burges, thomas claiborne, william charles cole claiborne, john clopton, thomas t. davis, john dawson, lucas elmendorph, william findlay, john fowler, albert gallatin, james gillespie, andrew gregg, carter b. harrison, jonathan n. havens, joseph heister, david holmes, walter jones, matthew locke, matthew lyon, nathaniel macon, blair mcclenachan, joseph mcdowell, anthony new, thompson j. skinner, william smith, richard sprigg, jr., richard stanford, thomas sumter, abram trigg, john trigg, philip van cortlandt, joseph b. varnum, abraham venable, and robert williams. monday, may . _presents to ministers._ mr. bayard said, he had a resolution to offer to the house, which he trusted would meet with no opposition from any quarter. it was intended solely to explain the grounds upon which the house proceeded when they refused to consent that mr. pinckney should receive the presents usually made by foreign courts to ministers upon taking leave, and which had been offered to him by the courts of london and madrid. he had purposely avoided in the resolution any expression of approbation of the conduct of mr. pinckney during his missions, because he perfectly knew that no approbation of that house could add to the high sense the people of the united states already entertained of the integrity and talents of that gentleman; and because it did not belong to the occasion for the house to express any opinion as to the conduct of the gentleman during the time he was employed abroad. that the design of the resolution he had to submit, was simply to negative an implication which possibly might be made, that, as the constitution certainly did contemplate cases in which ministers might be allowed to receive presents, the house were induced, by reasons connected with the conduct of this gentleman, to refuse the liberty to accept the presents; whereas he was perfectly satisfied, from the declarations of gentlemen who opposed the permission, who had all taken occasion to testify much esteem for the character and entire approbation of the conduct of mr. pinckney while in office, that their opposition arose from principles of general policy, which led them to think that, in no case should presents be allowed to be received. nay, they had said, that the purity of this gentleman's character, and the importance of his services, furnished a happy opportunity of establishing an invariable rule precluding the acceptance of these presents, which no merit hereafter should induce the house to depart from. the subject, however, was of so delicate and tender a nature, that he conceived it a piece of justice on the part of the house to state explicitly the grounds upon which their decision was made, in order to preclude the possibility of any mistake as to their motives. he should rely, therefore, with perfect confidence, that the following resolution would be unanimously adopted: _resolved_, that this house, in refusing to allow thomas pinckney, late minister at the court of london, and envoy extraordinary to the court of madrid, to receive the presents usually made by the said courts to foreign ministers on taking leave, were induced to such refusal solely by motives of general policy, and not by any view personal to the said thomas pinckney. mr. griswold moved the postponement of this resolution till to-morrow. the question on postponement was put and negatived-- to . the question on agreeing to the resolution then recurred-- mr. sewall had some doubts as to the propriety of the determination of the general question, as he believed, by that determination, the house had parted with an advantage placed in them by the constitution. he thought the best way of settling this business would be to reconsider that question. he knew one gentleman who had voted upon it through mistake, and there might be several others in the same situation. the question on agreeing to the resolution was put and carried unanimously. _naturalization law._ on motion of mr. sewall, the house went into a committee of the whole on the bill supplementary to, and to amend the act to establish an uniform rule of naturalization, and to repeal the act heretofore passed on that subject. mr. sewall moved to fill the blank specifying the length of time necessary for an alien to give notice of his intention to become a citizen, before he can be admitted, with "five years." carried. the blank declaring the length of time necessary for an alien to reside here before he can be admitted a citizen, mr. s. moved to fill with "fourteen years." mr. mcdowell hoped this blank would not be filled with so long a time. the residence now required from foreigners before they can become citizens is five years. he would not object to an increase of the length of this term to seven years; or, if the committee thought nine better, he would not object to it. he did not wish to discourage an emigration to this country of respectable foreigners, by barring them from the rights of citizenship. the policy of this country had always been different, and he did not wish entirely to change it. when persons come here from foreign countries, it was our interest to attach them to us, and not always to look upon them as aliens and strangers. the question for filling the blank with "fourteen," was put and carried-- to . mr. sewall moved a clause providing that no alien who comes from a country at war with us, shall be admitted to citizenship while such war continues. agreed to. mr. gallatin wished to know whether the provisions of this act are intended to extend to persons who were in this country previous to the passing of the law of january, , which requires a residence of five years before an alien can become a citizen, but who have neglected to become citizens, as well as to all those aliens who have come to the country since january, ; although they may have made the declaration by that law required three years before they can become so, of their intention of becoming citizens of the united states. the law of january, , had made an exception in favor of all aliens then in the country. as the bill stands at present, mr. g. said, it would have a retrospective effect on three descriptions of persons, viz: all those aliens who were in this country prior to the adoption of the present constitution of the united states, and who were not naturalized under the state laws before the act of ; in the next place, it affects all those who, under the law of , might have been naturalized, and all those who, under the law of , might hereafter be naturalized, provided they have made the necessary declaration of their intention of becoming citizens. from the year , many persons, with a view of making themselves citizens of this country as soon as the law would allow them, have renounced their allegiance to the countries from whence they came, and if this bill passes in its present form, they will for ten or twelve years to come be without citizenship in any country. he hoped, therefore, some exception would be made in favor of the descriptions of persons which he had named. one reason which led him to mention this circumstance was, that there are a great number of persons in the state of pennsylvania, and many in the district from whence he came, who, though they are not citizens of the united states, really believe they are. this mistake has arisen from (an error common to most of the districts of the united states) a belief that an alien's being naturalized by the laws of a state government, since the act of , made him a citizen of the united states. the mayor of philadelphia, till the year , admitted citizens under the state law, who afterwards considered themselves as citizens of the united states. he always thought that construction to be wrong--congress having the power to pass, and having passed an uniform naturalization law, which, in his opinion, excluded the idea of admission to citizenship on different terms by the individual states. but he knew the contrary opinion till lately generally prevailed. indeed, he knew that at the late election in this city, the votes of respectable merchants, who had obtained american registers for their vessels, on a presumption of their being citizens, were refused on this ground. the same mistake had extended to other parts of the union. it may be said that, since the year , these persons might have gone to any of the courts and have become citizens. in this city, and in others, he supposed persons had generally done so; but where people are two or three hundred miles distant from the district court of the united states, they had not always an opportunity of doing it, especially on account of a construction of the act of , which had prevailed in some counties of pennsylvania, and which made it doubtful whether any court in the state out of the city, could administer the oath of citizenship. mr. g. supposed that since the year , from ten to fifteen thousand emigrants had come into the state of pennsylvania, two-thirds of whom believed, till lately, that they were citizens of the united states, from their having been naturalized by the laws of that state. it has now been discovered that they are not citizens; but since that discovery was made, they have not had an opportunity of being admitted according to the law of the united states. if some limited period was given to these persons to come forward to be naturalized, and they did not become citizens in that time, he should be willing to exclude them. he thought, indeed, provision should be made for all these persons, but he would not move any amendment until he had heard the opinion of the committee on the subject. the amendment just adopted, for excluding their enemies from citizenship, would do away any objection which could be urged against a provision of this kind. indeed, the persons he alluded to generally came from the territories of the king of great britain, and three-fourths of them from ireland. mr. sewall said, this subject was before the select committee, and it was the opinion of a majority of that committee that no exception ought to be made, but that the bill should pass in its present form. his own sentiments were decidedly against any alteration. as to the irishmen whom the gentleman from pennsylvania has mentioned, as they have neglected to avail themselves of the privilege of becoming citizens, he supposed they did not place any high value upon it. they are now permitted to hold lands; and from the present distracted state of the country from whence they have emigrated, he did not think it would be prudent to make them eligible to hold seats in the government after a residence of five years. he believed the liberty which the united states have given in this respect heretofore has been unexampled, and it was high time the evils which had arisen from this imprudent liberality should be remedied. the present distracted state of the world, and the attempts made to disturb other governments, showed the necessity of the proposed regulations. mr. s. did not consider the persons who had been mentioned as laboring under any disadvantages. considering what they have left, and what they receive here, their situation is vastly improved by the change which they have made, without giving them any chance of becoming members of our government, for they would have had little chance of becoming members of the government which they have left. he did not suppose they came here with a view of getting into the government, but to acquire property, and to enjoy peace and happiness, and this they might do independent of citizenship. as he saw no good, therefore, to be derived to the country from admitting these persons to citizenship, but much danger, he hoped the bill would be agreed to as reported. mr. gallatin said, if the bill was proceeded with, he would prepare an amendment in favor of those classes of persons he had mentioned. the bill was accordingly proceeded with; and coming to the fifth section, where it is provided, that if an alien shall continue to reside here, and shall refuse or neglect to make a report of his residence, and receive a certificate thereof, he shall forfeit two dollars, _and shall be liable to be arrested as a suspected person_-- mr. gallatin moved to strike out the words printed in italic. it was sufficient, he said, that such a person should pay a fine. it was a new thing to punish a man by imprisonment, not for delinquency, but because he was suspected. a conduct of this kind had been highly condemned in another country, and he hoped it would not be adopted here. mr. sewall said, it was the intention of the committee to show the nature of the offence of omitting to make the proper report; to show that such omission would lay the citizens under the suspicion of not acting openly and candidly. mr. sitgreaves remarked, that if his colleague's objection only went to the words "suspected person," his motion went too far. the question was put and negatived-- to . mr. gallatin then proposed an amendment to the following effect: "provided that any alien who was resident within the limits, and under the jurisdiction of the united states, before the th of january, , and any alien who shall have made a declaration of his intention of becoming a citizen of the united states, in conformity to the provisions of an act establishing a uniform rule of naturalization, passed on that day, may be admitted to become citizens of the united states, according to the provisions of that act." mr. craik was disposed to go much further than is proposed in this bill in restricting aliens from becoming citizens of this country. he should have no objection to say, that no foreigner coming into this country after this time, shall ever become a citizen; but he believed if this law was to have a retrospective operation on all those foreigners now residing within the united states, who have neglected to become citizens, it would be very unjust. there was a large class of persons, he said, in the country from which he came, who are not naturalized under any law, and many others who had been naturalized under the state law; about the legality of which, as had been stated, there is much doubt, though in maryland and virginia foreigners are still naturalized by the states, notwithstanding the law of the united states. in deciding upon this question, mr. c. said, it would not be proper to take into consideration emigrants from any particular country. many of the persons he alluded to, are germans, and well entitled to every privilege that can be given them, and whose neglect to become citizens was probably owing to their ignorance of our language and laws. he should, therefore, be in favor of this amendment, especially as far as it respects those aliens who were in this country before the year . mr. bayard said, though foreigners were prevented from becoming citizens of the united states until they have resided fourteen years in the country, in many of the states, they are entitled not only to vote for filling the offices of the state governments, but also for filling those of the united states. therefore, the only privilege which they are denied, is the capacity of becoming members of the federal government; which was a denial, he thought, recommended by sound policy. and he did not see why the restriction should not extend to the aliens now within the united states, as to those who shall hereafter come here. if aliens residing here had any right to expect an exception, it must be on the ground of compact. he did not, however, consider naturalization laws in that light. aliens cannot be considered as members of the society of the united states; our laws are passed on the ground of our own policy, and whatever is granted to aliens is a mere matter of favor; and, if it is taken away, they have no right to complain. every principle of policy, in his opinion, required this regulation to be made general; for he believed there were as many jacobins and vagabonds come into the united states during the last two years, as may come for ten years hence; so that these very persons against whom this law was intended to operate, will become citizens, and may be chosen into the government. he hoped, therefore, the amendment would not be adopted. with respect to those persons who have given notice of their intention of renouncing their allegiance to the foreign country from whence they came (for they do not actually renounce it until they become citizens) it can make no difference to them, especially those referred to by the gentleman from pennsylvania, because it is a principle of the british law, that british subjects have not a right to alienate themselves; they cannot renounce their allegiance to the british king. no objection, therefore, could be had against the measures being general on that ground. mr. macon was apprehensive that gentlemen in their zeal to get at particular persons, will go too far in this business. he agreed with them, that, for three or four years past, people of all sorts of politics had come to this country, from the highest aristocrat to the greatest jacobin; and he doubted not that persons who were very desirous of becoming citizens, or who had any particular end to answer by it, had availed themselves of the law. but there are persons in distant parts of the continent, who have never yet become citizens, perhaps from their not being in the way of going through the ceremony, and because they had no apprehension of the privilege being taken from them. many had also omitted to do it from an ignorance of our language. he hoped, therefore, this amendment would be agreed to. if persons have given notice of their intention to become citizens, they have complied in part with the laws; and he did not think it would be right to put it out of their power to comply with the other part. mr. sewall said, this amendment would comprehend those aliens who have come here since the year , though they may have made no declaration of their intention to become citizens, as they may make the declaration before the law passes. as to the other description of persons, he had not the same objection to them. he agreed with the gentleman from delaware, that our regulations in this respect are made for our own convenience and safety, and that no alien has a right to complain, if these regulations should disappoint his expectations. mr. sitgreaves said, this was either a question of right or expediency. he presumed no gentleman was prepared to say any alien had acquired an absolute and positive right in this country to citizenship at any particular time. if not, it was a mere matter of expediency; and, when it is considered in this light, there can be little difficulty in seeing the danger and disadvantages which would arise from allowing foreigners to become citizens, as heretofore, or as proposed by the present amendment. they are too evident to be enumerated. but it was supposed that there were a large number of individuals in this country entitled to citizenship by the law of , but who have, nevertheless, neglected to become citizens. it was a little extraordinary, he said, if this were so; that persons should for so long a time have neglected to embrace a right which, it is now represented, it would be doing them great injury to deprive them of. as to those persons who came into the country since the law of , he saw no good reason for making an exception in their favor. as policy, safety, and security, dictated the measure, he hoped the bill would be passed as reported. mr. w. claiborne said he could not reconcile it to his feelings to vote for the bill without the amendment proposed by the gentleman from pennsylvania, because it would be doing a number of people whom he represented the greatest injustice. those people, be said, were peculiarly situated. it was only at the last winter session that the state of tennessee was represented on this floor; and, at the time of passing the naturalization law, the people of that country were not in a situation to receive information of what was done in congress. it need not be a matter of surprise, therefore, if, in that frontier country, there are many persons aliens who did not take advantage of the law of . there are numbers of such who have given the strongest proofs of attachment to the country; they have fought and bled in the service of the united states, and are as much wedded to the government of the united states as any man born on american soil. if this amendment does not prevail, it will affect many valuable citizens of the state of tennessee who were citizens in the year , and ten years before that time. these persons would be deprived of rights, because they were living in a country in which there was no post road, and where, of course, they had no newspapers to give them information of what was going on at the seat of government. he hoped, therefore, it would not be agreed to. mr. j. williams hoped this provision would be agreed to. when an act is passed, good reasons, he said, ought to be given before any change takes place. many persons had come into this country from an expectation of being naturalized at the end of a certain period; but, if this provision is not agreed to, the system will be entirely changed. he saw no difficulty which could arise from agreeing to this provision, as persons from countries at war with this country could not be made citizens at all. he knew a number of persons who had not taken advantage of the naturalization law, who perhaps are as good men as any in the united states. it was true, he said, that by the laws of the several states aliens are allowed to hold land; but when foreigners come here to reside, and behave well, he did not see why they ought to be prevented from becoming citizens. they contribute their share of the expense of government, and it was an acknowledged principle that representation and taxation ought to go together; which would not be the case if the bill was passed without this amendment. the question was put and carried, there being votes for it. the committee then rose, and the house proceeded to take up the amendments. the amendment of mr. gallatin coming again under consideration, mr. coit hoped that part of the clause would be disagreed to which embraces persons who were in this country before the year , but who had never shown any disposition to become citizens. those who came since, and had given notice of their intention of becoming citizens, stand on very different ground. he should have no objection to the latter being accepted, in the way proposed, but not the former. after a few observations on this amendment, it was negatived-- to . mr. sitgreaves proposed an amendment, limiting the time within which aliens, included in mr. gallatin's proposition, should be permitted to avail themselves of the exception in their favor, viz: those who were in this country before the year , within one year after the passing of this act; and those who have come here since, and given notice of their intention to become citizens, within four years from the time of such notice having been given. the question was first put on the former part of the amendment. mr. t. claiborne did not wish to punish men for not being born here, but to punish both natives and foreigners when guilty. he hoped two years would be allowed instead of one. the question on two years was put and negatived-- to . it was then put on one, and carried-- votes being for it. the question on the second part of the amendment was then put. mr. varnum said, the impulse of the moment led members to believe that these restrictions upon foreigners were necessary. he thought there was no necessity for any measures being taken with respect to foreigners, except such as belong to the nation with whom we expect to be at war; yet, he had no particular objection to restrictions being made with respect to such foreigners as shall hereafter come to this country; but, having heretofore held out inducements to foreigners to come to this country, and when they are come, with an expectation of becoming entitled to the rights of citizens in a certain time, he would not disappoint those expectations. mr. t. claiborne said, this was a very important bill, and he should wish a little more time to consider on it; he therefore moved an adjournment. the motion was put and negatived, there being only votes for it. mr. sitgreaves said, the observation of the gentleman from massachusetts could only be applicable when the principle of the bill was under consideration; whereas, the present proposition only went to limit the period within which advantage should be taken of the indulgence proposed to be allowed. mr. varnum moved a division of the amendment, and proposed to allow till the st of september next for persons to make a declaration of their intention to become citizens. this motion was not seconded; and the question on the amendment was put and carried-- to . the bill was then ordered to be read a third time to-morrow. tuesday, may . _alien enemies._ on motion of mr. sewall, the house went into a committee of the whole on the bill respecting alien enemies, mr. dent in the chair; when the bill was read as follows: sec. . _be it enacted, &c._, that whenever there shall be a declared war between the united states and any foreign nation or government, or any invasion, or predatory incursion, shall be perpetrated, attempted, or threatened, against the territory of the united states, by any foreign nation or government, and the president of the united states shall make public proclamation of the event, all natives, denizens, citizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the united states, and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed, as alien enemies; and shall be further subject, with their goods and effects, to a just retaliation of any unusual severities, restraints, and confiscations, which shall be suffered by the citizens of the united states, resident within the territory of the hostile nation or government, and inflicted by their authority, previous to, or at the commencement of, any war or rupture as aforesaid, under color or pretence thereof. and the president of the united states shall be, and he is hereby, authorized, in any event as aforesaid, by his proclamation thereof, or other public act, to direct the conduct to be observed, on the part of the united states, towards the aliens who shall become liable as aforesaid; the manner and degree of the restraint to which they shall be subject, and in what cases and upon what security their residence shall be permitted, and to provide for the removal of those who, not being permitted to reside within the united states, shall refuse or neglect to depart therefrom, and to establish any other regulations which shall be found necessary in the premises, and for the public safety, subject, nevertheless, to the regulations which the congress of the united states shall thereafter agree and establish. [the second section allows to any alien enemy who shall not be chargeable with actual hostility, all the time for the disposal of his effects, and his removal from the country, which any treaty with his nation may stipulate; and the third commits the execution of the act in relation to all persons comprehended in the president's proclamation, and to all who shall harbor them, to all the judicial and ministerial officers of the federal and state governments.] the two first sections having been read, without motion for amendment, mr. lyon moved to strike out the word "harbor," in the third section, which was negatived. mr. macon thought the third section gave the president a very extraordinary power; it seemed that his proclamation, in all cases, was to be considered as law. he wished the chairman of the committee, who reported the bill, to give some information on the subject. mr. sewall said, the gentleman from north carolina seemed to suppose that this was a general power placed in the hands of the president, whereas his power is confined by the first section of the bill. this power, mr. s. said, must be placed somewhere, and he believed it could not be better placed than in the president. mr. lyon saw no ground for the first section of the bill, except it was to restrain the property of aliens to make satisfaction for the injuries done to our own citizens; nor should he be willing to give a power to the president which might enable him to distress innocent persons. he moved, therefore, to strike out the words "or threatened," in the first section, as he considered these words too vague to authorize the exercise of so great a power as was here given. mr. macon seconded the motion. the question was put and negatived, to . mr. harper moved to strike out the words "predatory incursion," in the first section. the power, he said, was a very extensive one, and he did not think it ought to be given except in cases of serious attack; but, after a few words in opposition to it by mr. sewall, and in favor of it by mr. mcdowell, he withdrew his motion, alleging that he had not rightly understood the section. mr. bayard said, the last section of this bill contained a principle contrary to all our maxims of jurisprudence, viz: to provide punishment for a crime by a law to be passed after the fact is committed. whether the crime to be punished is to amount to treason, misprision of treason, or be only a misdemeanor, is left uncertain. it was his opinion that laws could not be too definite; but it would be impossible in this case for the person committed to know what crime he had committed, or to what punishment he was liable. in order to get rid of this difficulty, he moved to strike out all the words after the word "aforesaid," at the conclusion of the last section, and to insert in lieu thereof the following words, viz: "shall be guilty of a misdemeanor, and subject to a fine not exceeding ---- dollars, and be imprisoned not exceeding ---- months." mr. sewall acknowledged there was a good deal of uncertainty in that part of the bill moved to be struck out; but the select committee did not see any way of remedying the evil without making the law too mild in its operation. in some cases, the offence would amount to high treason, the punishment for which is death; in others, to misprision of treason, the punishment for which is imprisonment not exceeding seven years, and a fine not exceeding one thousand dollars. as the offence might, therefore, sometimes amount to high treason, there would be an impropriety in making it uniformly a misdemeanor. if an alien should have resided here for a number of years, and he should turn out to have been a spy, and a citizen of the united states should have harbored and concealed the said alien, knowing him to have been a spy, he would be chargeable with high treason for aiding and abetting the enemies of the united states within its territory, or at least a misprision of treason. but the gentleman from delaware was mistaken in his idea that it was intended to try an offender by a law passed after the offence was committed. by the expression, "as by law is or shall be declared," was only meant such law as should be passed between the present time and the time of committing any offence. the question on this amendment was put and carried, to . on motion of mr. bayard, the blank for containing the amount of the penalty, in the amendment just carried, was filled with one thousand dollars. the committee rose, and reported the amendments; which having been agreed to, mr. dent moved to strike out the word "months," in mr. bayard's amendment, in order to insert "seven years." mr. n. smith hoped this amendment would not be agreed to. he believed the penalty might, in some cases, be too severe, and in others by far too mild. he thought the bill stood well as it was. he did not think there was any uncertainty in it but what arose from the different species of offence which were comprised within this provision--for a person under it might be guilty of the highest crime, or of no crime at all, according to the circumstances of the case. this being the condition of things, to make an uniform punishment for all cases, whether highly criminal, or no crime at all, cannot be proper. the bill as it stands, without the amendment, provides that offenders shall be imprisoned and punished according to the law which is or shall be made, (before the offence is committed,) and he thought this was the proper footing, as the punishment would then be apportioned according to the offence. mr. bayard hoped the amendment would be agreed to. he did not know that a greater misfortune could happen to any man than to live in a country where the laws are so indefinite that a person cannot ascertain when he commits an offence, or what is the penalty of an offence when it is committed. the gentlemen from massachusetts and connecticut tell the house about the aggravation of the offence. what was the aggravation they allude to they have not stated, and no gentleman could form an opinion upon the subject. the fact was of a definite nature, and a definite punishment ought to be made for it. what is the fact? it is the harboring and concealing of an alien enemy after the proclamation of the president. gentlemen say this offence may amount to treason, misprision of treason, or other offence. if the offence could amount to treason, he owned he did not understand the bill, because the crime of treason is defined by the constitution, and could not be varied by any law of congress. if, then, the fact amount to treason, it will not be included in this law. if gentlemen wished to punish persons in exact conformity to their degree of offence, they ought to prepare a scale of offence for that purpose. if not, the amendment agreed to in committee of the whole, ought, in his opinion, to be concurred in. mr. sewall said, this bill aimed at one thing, and the gentleman from delaware at another. the bill has in itself a definition of the offence. it has declared certain circumstances which shall put a person in a situation in which he shall answer for his conduct. it declares that a person harboring an alien enemy shall be a suspected person; but the crime and punishment must be ascertained by other laws; and by these offenders are to be punished agreeably to their offences, whether they be great or small. mr. gallatin said, if he understood the gentleman from massachusetts, it was not the object of this bill to define the nature of the offence of which a person shall be guilty, or the punishment for it, for harboring and concealing an alien enemy, but only that certain circumstances should render a man a suspected person. this to him was altogether a new legislation. if he understood the bill as it stood rightly, a person may be apprehended and imprisoned on account of his having harbored and concealed alien enemies; yet the gentleman from massachusetts says this is in itself no crime; for, if it were a crime, it ought to be punished in the way proposed by the gentleman from delaware, but he states it to be only a sufficient ground of suspicion. this mr. g. said, was not only contrary to every principle of justice and reason, but to the provisions of the constitution. the constitution says, "that no person shall be deprived of life, limb, or property, without due process of law." but here certain persons may be deprived of their liberty without any process of law, or being guilty of any crime. yet the gentleman from massachusetts says, that this bill does not define a crime or award a punishment. but, mr. g. said, this assertion was not correct; for there was a new crime instituted, which was that of being a suspected person, and the overt act which is to be evidence of that crime, is the harboring and concealing of an alien enemy, and the punishment is to be apprehension and imprisonment until it shall be found what law the prisoner has offended. mr. g. said he was ready to acknowledge that where a man commits an offence, he ought to be punished; but he could not consent to punish any man on suspicion merely. he therefore moved to recommit the bill. he did this because he thought the whole of the bill vague in its nature. he wished it to be more in detail, and that the offences to be punished should be defined; for it was remarkable that every section of the bill concluded with these singular words: "subject nevertheless to the regulations which the congress of the united states shall thereafter agree and establish." so that instead of deciding what the law should be, it gives the president the power of saying what it is; subject to the after regulations of congress. he wished now to make the law to declare what the offence should be, and what the punishment, and not leave it to the president to make what regulations he shall think proper. if not, the whole of the bill might as well be in two or three words, viz: "the president of the united states shall have the power to remove, restrict, or confine alien enemies and citizens whom he may consider as suspected persons." when congress attempted to legislate, they ought not to do it in this way. when the resolution was agreed to, authorizing this bill to be reported, he expected the committee would have defined the nature of offences and their punishments, and not reported the bill in the vague way in which it is before the house, especially as this appears not to be meant for a temporary, but a permanent law. if gentlemen examine the third section of the bill, it will be found that all judges, justices, marshals, sheriffs, and other officers, and all the good people of the united states, are bound to do, what? not to execute any law; but to carry into effect any proclamation, or other public act of the president. so that instead of the judicial, and any other officers of the united states, and the people at large, being obedient to the laws, they are to be obedient to the will of the president. the last clause of the bill, which does not relate to aliens, but to our own citizens, is very objectionable. it is in the shape of a penal law, and the crime it defines is the harboring and concealing of alien enemies. now it is said, that this crime may amount to high treason, by its being construed that an offender has adhered to the enemies of the united states, knowing them to be such, or it may be no offence at all. but the provision is general; and a man guilty of no offence is liable to be apprehended and imprisoned equally with the highest offender under this law. upon the whole, it was evident, mr. g. said, that this bill wants detail, as what is left general and ambiguous, ought to be clearly defined. he hoped, therefore, the bill would be recommitted. mr. sewall said, that the gentleman from pennsylvania, in order to bring forward this motion, has shut his eyes to the intention of the bill. he says it is a bill for punishing crimes which are not defined. he never knew that alien enemies were guilty of an offence merely as such. it is a bill to provide for the public safety in certain cases. in the event of a war with france, all her citizens here will become alien enemies, but neither this bill, nor common sense, would consider them as offenders. they may be offenders, but not because they are alien enemies; nevertheless it is necessary to provide for the public safety, and in all countries there is a power lodged somewhere for taking measures of this kind. in this country, this power is not lodged wholly in the executive; it is in congress. perhaps, if war was declared, the president might then, as commander-in-chief, exercise a military power over these people; but it would be best to settle these regulations by civil process. they would be regulated by the treaties as well as by the laws of nations. the intention of this bill is to give the president the power of judging what is proper to be done, and to limit his authority in the way proposed by this bill. in many cases, it would be unnecessary to remove or restrict aliens of this description; and he believed it would be impossible for congress to describe the cases in which aliens or citizens ought to be punished, or not; but the president would be able to determine this matter by his proclamation. if, however, gentlemen could point out any way in which the necessary regulations could be detailed, he should have no particular objection to it, though he thought the bill stood very well as it was. mr. otis.--in considering this subject, the only practicable modes, he said, which present themselves, are three. to provide for the removing or otherwise restricting all alien enemies without distinction, or to specify some overt acts for committing of which they shall be liable to be removed or restricted, or else to leave the power with the president to take such steps respecting them as he shall think proper and necessary for the public safety. mr. o. inquired if the house was ready to do the first? he thought not. he had no doubt there might be french citizens resident here who were entitled to protection, who meant to become good subjects, and who ought not to be exposed to any inconvenience or penalty whatever. he believed very few gentlemen are of opinion that it would be proper to treat all alien enemies in the same way. the operation of such a measure would be unjust. will gentlemen think it right, then, to declare that alien enemies shall only be removed, or otherwise restricted, on conviction of some overt act to be specified in the act? they are at present liable, with all other persons, to be punished for crimes; so that a regulation with this view would be unnecessary. but there may be cases where the conduct of such persons being extremely suspicious, they ought to be taken into custody, though no positive crime could be proved. suppose a french army were to land in this country, some of these persons might show a disposition, which would warrant their imprisonment; and yet he did not know how such dispositions could be defined in this bill. mr. o. believed, therefore, that it would be best to vest a discretionary power in the executive to secure and take care that these men should do no injury. and this could not be looked upon as a dangerous or exorbitant power, since the president would have the power, the moment war was declared, to apprehend the whole of these people as enemies, and make them prisoners of war. and in case of a predatory incursion, made on this country, there might be as much reason for securing some of them as in case of actual war or invasion. so that this bill ought rather to be considered as an amelioration or modification of those powers which the president already possesses, as commander-in-chief, and which the martial law would prove more rigorous than those proposed by this new regulation. unless gentlemen were disposed to interfere, to suffer those men to go at large, and to carry on a correspondence with their countrymen and our enemy; unless they will consent to suffer a band of spies to be spread through the country, from one end of it to the other, who, in case of the introduction of an enemy into our country, may join them in their attack upon us, and in their plunder of our property, nothing short of the bill like the present can be effectual. he was willing to say, that in a time of tranquillity, he should not desire to put a power like this into the hands of the executive; but, in a time of war, the citizens of france ought to be considered and treated and watched in a very different manner from citizens of our own country. as to the objection made by the gentleman from pennsylvania, that the bill provides a punishment for suspected persons, and that the word suspected was indefinite, mr. o. asked whether men are not usually arrested on suspicion? when information is lodged against a man for committing an offence, he is suspected of being guilty, and imprisoned until he can be examined. mr. o. believed, that, to provide for this detention of the person, was all congress could now do. if the bill was recommitted, he did not think any definite provision could be made. it was necessary the president should have the power of judging in this case, and that punishment ought not to depend upon the slow operations of a trial. though possessed of this power, the president would doubtless suffer all such persons to remain in this country as demeaned themselves peaceably; but when they discovered a contrary spirit, he would treat them accordingly. mr. gallatin withdrew his motion for committing the whole bill, and moved to commit the third section of it. his arguments, he said, went wholly against that; and gentlemen, in reply to him, had chosen to direct their observations to other parts of the bill. as he did not wish his object to be misunderstood, he would only move for a recommitment of the third section of the bill, as his objections to the other parts of it were immaterial when compared with this. after a few words from mr. otis, mr. macon renewed his motion for recommitting the whole bill, which was negatived-- to . mr. gallatin then renewed his motion for recommitting the third section, which was negatived by the casting vote of the speaker, there being thirty-eight votes for it, and thirty-eight votes against it. mr. lyon renewed his motion to strike out the words "or threatened," in the first section. he thought this too indefinite an expression upon which to rest so important a power as was given to the president by this bill. where the liberty and happiness of thousands of people are concerned, he wished they might depend upon something more certain. gentlemen who advocate this bill, he said, spoke as if all power was to be placed in the president, and congress were never to sit again. he wished this expression to be stricken out, and if, when congress met again, they found the president had not power enough, they might give him more. he called for the yeas and nays upon his motion. the question for taking the yeas and nays was put, but less than one-fifth of the members present rising in its favor, it was not carried. the question was then put on the motion, and it was negatived without a division. mr. gallatin supposed, if these regulations were established, it would be proper that permits should be granted to such aliens as the president should suffer to remain in the united states. he was not immediately prepared to introduce a proper amendment for that purpose; but he would move to add a few words in that part of the bill where it is proposed to punish citizens for harboring aliens, to try the question. he did not very well understand the phrase, "liable as an enemy," by which those aliens were defined, and whom it would be criminal by this law to harbor; but he would move to introduce the words, "who shall not have obtained permission, under the authority of the president of the united states to remain within the territory of the united states." he moved this, in order that citizens might not be entrapped by this law, but that they should know precisely to what description of aliens they might give a night's lodging, without being liable to be arrested as suspected persons. mr. bayard did not think this amendment necessary, as a citizen must harbor and _conceal_ an alien to be guilty of any offence. and the question was put and negatived-- to . the bill was ordered to be engrossed for a third reading to-morrow. wednesday, may . _alien enemies._ the bill respecting alien enemies was read the third time, when mr. r. williams moved a recommitment of the bill. he said his objections did not lie so much against the provisions respecting aliens, as to the power proposed to be given to the president of issuing proclamations, which are to be binding on the judges and other officers with respect to our own citizens. he would wish to designate every offence, and its adequate punishment, as far as it could be done. in order to effect this he made his motion. mr. sewall said, so much discussion took place on this subject yesterday, that he did not expect any more to-day. the gentleman from north carolina seemed not to object to the powers given to the president by the first and second sections of the bill, but he did not wish him to have any officers to execute his powers. if the president could carry the law into effect with his own hand, he might do so, but he objected to his having any aid from his officers or the people at large. he did not believe this kind of reasoning could have any effect in this house. if the president is authorized to issue orders, he must be authorized to require the aid of proper persons to execute them. mr. gallatin called for the yeas and nays upon this question, which, being agreed to, he hoped this bill would be recommitted. he had no doubt that the committee, by paying due attention to the subject, instead of this general and vague bill, might report such rules and regulations as would be proper to be adopted on this occasion. he recollected seeing a bill from the senate on this subject, in which something of this kind was done; and though he did by no means approve of that bill, yet it showed that the thing was not impossible. the objection made against a recommittal of this bill, was, that it was necessary to do something to provide means for securing and removing alien enemies, which did not apply as an argument against the recommitment of the bill. it was a good reason why a bill should be passed, but no reason why it should pass in its present form. the present bill, mr. g. said, was grounded upon the principle that the president of the united states shall have the power to do by proclamation what ought only to be done by law. in the first place, the proclamation of the president is to determine the period when foreigners not naturalized shall be liable to be apprehended, restrained, secured, and removed as alien enemies. mr. g. understood what was meant by apprehending alien enemies, and securing them, but he did not understand the word "restraining;" it was vague, he said, in its nature, and he did not know that it was a legal phrase. the committee could themselves explain it. by the bill from the senate, it was intended to confine them within the place where they reside; perhaps this was their idea. the bill goes further: they are not only liable to be apprehended, restrained, secured, and removed, but "to be subject, with their goods and effects, to a just retaliation of any unusual severities, restraints, and confiscations, which shall be suffered by the citizens of the united states resident within the territory of the hostile nation or government, and inflicted by their authority." mr. g. wished to have explained what was meant by "unusual severities." they must mean something more than confiscations--than apprehending, restraining, or removing--because they are specifically provided for. he wished, therefore, to know what these unusual severities were which, upon our own ideas of government, we could retaliate? if any other severities besides those which are here enumerated were to be inflicted upon our citizens in france, he thought it would be disgraceful to that country, and he could not believe that either propriety or justice would warrant us committing a disgraceful act against the citizens of another nation, because that nation had committed a disgraceful act upon our citizens in their country. [mr. sewall rose to explain, but the speaker said, the rule which declares no member shall speak more than once to a question would not permit him.] mr. g. did not know whether these words "unusual severities" were not intended to be held _in terrorem_ over the conduct of france. if so, he did not think it a very creditable proceeding. but he believed that part of the bill perfectly useless, for two reasons: first, it is extremely doubtful whether the president of the united states could constitutionally exercise those "unusual severities," which this bill says he may exercise; and with respect to confiscation, it was explained by a subsequent part of the bill to be only a sequestration till the next meeting of congress, and he therefore conceived this part of the bill to be of no use, except to train our code of law in a manner expressly contrary to the spirit of our constitution, which expressly declares no "cruel or unusual punishments" shall be inflicted. but, supposing the words only held out _in terrorem_, he wished to know how they would apply, whether it was to make a part of our permanent law, whether it is suited for the present time only. if it were not to make a part of our permanent system--and he thought no gentleman would say it ought--then it must be on account of our present situation. as to our present situation, in relation to any thing which may befall our citizens in france, he would say the words are useless, and this for a plain reason; for, out of the natives of france in this country, ninety-nine out of an hundred are of that description of persons whom the french call emigrants, and it is therefore perfectly immaterial to the french nation how they are treated; so that the bill could operate only on a dozen or two of persons of a different description who may be in this country. in the next place, with respect to confiscations, which by the next clause are so limited as to become sequestrations, it would be wrong to give this power to the president. an article is inserted in the british treaty expressly to declare that sequestrations are impolitic and unjust in every case, and providing against them. he admitted that it might be necessary to resort to them on some occasions, because he believed there might be cases where sequestration would be necessary, by way of indemnification; but what he insisted on was, that it ought to be done by law, and not by the president. on a former occasion, when the question of sequestration was before congress, the power was not proposed to be left at large with the president, but was to be regulated by law. there was another circumstance which showed how easy a thing it would be to pass a law themselves, instead of leaving every regulation relative to this subject with the president. about the middle of the second section it is said, "where no treaty exists, a reasonable time shall be allowed, which shall be ascertained and declared by the president, or by the congress of the united states." this was a kind of double legislation which was new to him. he wished to know what difficulty there would have been in defining the time here referred to in this bill? it appeared to him the right and proper time to do it. from the moment that the resolution came before the house, he was ready to acknowledge that the power of regulating this business was in the power of government, as it was a power possessed by every nation, which it had a right to exercise for its own security; but it ought to be exercised according to law. in some countries, indeed, this power is vested in the executive. in france, he believed, it was wholly so, and in england in a great degree; but in this country he trusted that this house would be of opinion that congress is the proper body to regulate so important a measure. but the evil, mr. g. said, did not stop here, it extended to all the citizens of the united states. the object of the last section provides that justices, judges, marshals, sheriffs, and the people at large shall perform a duty which is undefined. but the gentleman from massachusetts says this is right, because the power given to the executive by this bill is also undefined. this is the foundation of all the objection made to this bill; it is to the want of legislation in it, which leaves not only alien enemies, but citizens of the united states, to the will of the president. but he would go farther, and say it is impossible to define the duties of our own citizens, though the two first sections of the bill should be left at large as they are. by the present bill, the duties of justices, &c., are to be regulated by the proclamation of the president. he could conceive that the house might take into consideration the nature of the powers vested in the president, and inquire what will be the duties required to be performed by the several officers of the government to carry into effect those powers. those powers are to apprehend, restrain, secure, and remove alien enemies, and to sequester their property. as to the removal of aliens, he could not see what justices and judges had to do with it; but if they had any thing to do with it, congress ought to say what. they might say what should be the duties of judges or justices, or of executive officers in the several cases which may be likely to occur, instead of leaving the thing wholly at large. the last part of the d section, he said, was as objectionable as any other. it defines the crime in two words, "harboring and concealing," and the penalty, if found guilty of this vague and uncertain charge, is imprisonment not exceeding seven years, and a fine not exceeding one thousand dollars. so that if a person be found guilty of harboring and concealing an alien enemy, however trifling the expense may be, his punishment will be left wholly to the discretion of the court. the only power of the jury will be to decide on the fact; and if a citizen has harbored for one night, however undesignedly, an alien enemy, he must be found guilty, leaving it altogether to the court to judge of the criminality of the act, and to affix the degree of punishment. he thought this part of the law ought to be better defined. it ought to distinguish between cases of misdemeanor and those which might arise from ignorance, and in which no offence at all might exist. he hoped, therefore, the bill would be recommitted. the question on recommitting the bill was put and carried-- to . the yeas and nays were as follow, yeas.--abraham baldwin, david bard, lemuel benton, thomas blount, richard brent, nathan bryan, stephen bullock, dempsey burges, thomas claiborne, william charles cole claiborne, john clopton, thomas t. davis, john dawson, george dent, lucas elmendorph, john fowler, albert gallatin, james gillespie, andrew gregg, william barry grove, john a. hanna, carter b. harrison, jonathan n. havens, joseph heister, david holmes, walter jones, matthew locke, matthew lyon, james machir, nathaniel macon, blair mcclenachan, joseph mcdowell, john milledge, anthony new, josiah parker, john read, william smith, richard sprigg, jr., richard stanford, thomas sumter, abram trigg, john trigg, philip van cortlandt, joseph b. varnum, abraham venable, and robert williams. nays.--john allen, george baer, jr., bailey bartlett, james a. bayard, david brooks, christopher g. champlin, john chapman, james cochran, joshua coit, william craik, samuel w. dana, john dennis, william edmond, thomas evans, abiel foster, dwight foster, jonathan freeman, henry glenn, chauncey goodrich, roger griswold, robert goodloe harper, thomas hartley, william hindman, hezekiah l. hosmer, james h. imlay, john wilkes kittera, samuel lyman, william matthews, daniel morgan, lewis r. morris, harrison g. otis, james schureman, samuel sewall, william shepard, thomas sinnickson, samuel sitgreaves, nathaniel smith, george thatcher, richard thomas, mark thompson, thomas tillinghast, john e. van allen, peleg wadsworth, and john williams. mr. sewall, mr. dana, mr. imlay, mr. s. smith, mr. josiah parker, mr. brooks, and mr. rutledge, composed the committee. friday, may . _instructions to armed vessels._ mr. sewall, from the committee for the protection of commerce and the defence of the country, to whom was referred mr. sitgreaves' resolutions for instructing the commanders of our public and private armed vessels, and also the bill from the senate for the further protection of the commerce and coast of the united states, reported it as the opinion of that committee that the bill from the senate ought to be agreed to by the house. the report was twice read, and ordered to be committed to a committee of the whole. on the speaker's asking for what day this bill should be made the order, monday, to-morrow, and to-day, were named. the question was first taken on monday, and negatived-- to . the question was then put upon to-morrow. mr. gallatin hoped this bill would be made the order for to-morrow, as the bill had only been printed this morning, and the report but this moment made. it would be a very extraordinary proceeding to make this very important bill the order for this day. mr. j. williams said, this was a very extraordinary case. when we learn every day that our vessels are taken by the french cruisers, without any cause whatever, it is necessary to act with decision. this day had been spent on a very trifling business compared with this, and he hoped the house would sit until this bill was gone through. mr. mcdowell hoped this bill would be made the order for to-morrow, as it had only been laid upon the table this morning, and few gentlemen had yet turned their attention to it. besides, the usual hour of adjournment is arrived, and he hoped gentlemen would not insist upon hurrying so important a bill through the house in this manner. the gentleman from new york remarked that the house had been engaged in trifling business all the day; but, he observed that gentleman sat very contentedly under the discussion, though he now seems so desirous of expediting this business. mr. sewall was impressed with the necessity of passing this bill as soon as possible. if the committee had thought they might with propriety have taken time to deliberate upon this subject, they would not have made this report, but have taken into consideration the resolution which had been referred to them with this bill; but finding it necessary that our armed vessels should receive their instructions immediately, that they may go out and take the vessels on the coast, or drive them off, they made this report, intending hereafter to report farther upon the subject. but the present measures they thought necessary, from the peculiarity of our present situation; the dangers attending which the people without seemed to be fully persuaded of. and as this subject had been fully discussed on the resolutions which had been before the house, he hoped the bill would be immediately taken up; as he wished to provide without delay for the defence of our coast as far as our force would permit. mr. macon said, it was very extraordinary indeed, that gentlemen should wish to hurry this bill through the house in the way proposed. it appeared as if they were afraid of any thing coming from our commissioners before they got the country in war. being now the usual hour of adjournment, it could not be expected that if the house went into this bill, that any debate could take place. indeed, gentlemen seemed to wish to prevent debate as much as possible; a few days ago, they had got a rule passed that no person should speak more than once to any question, and now by moving to go into a committee of the whole, at the hour of adjournment, they wish to prevent them from speaking once, and that upon a bill which will certainly place the country in a state of war. he thought a regard to decency ought to prevent gentlemen from pushing this motion. mr. lyon called upon gentlemen to consider the importance of this bill. he considered it as a declaration of war as it now stands, and he hoped time would be given to consider whether some amendment could not be introduced into it, so as to prevent its being so considered. at present, he believed, it was directly in the face of the laws of nations. he was desirous of avoiding war if possible. his constituents also wished it. he had received at least two hundred letters requesting him to do all in his power to prevent it. indeed, he was afraid of the consequences of war; he was afraid it might produce even a dissolution of the present government. mr. brent was proceeding to express his astonishment at the conduct of gentlemen in wishing to press so important a subject upon the house, while members were impatient to adjourn, when, mr. sewall rose and withdrew his motion, and the bill was made the order of the day for to-morrow. saturday, may . _protection of commerce._ mr. sewall called for the order of the day on the bill from the senate for the more effectual protection of the commerce and coasts of the united states; and the house accordingly resolved itself into a committee of the whole on the said bill, mr. dent in the chair. the bill having been read,[ ] mr. macon rose and observed, that he wished to amend both the bill and the preamble to it, and desired the chairman to say which it would be in order to move first. the chairman having answered that it would be most regular first to amend the bill, and then the preamble could be made conformable to it, mr. macon moved to strike out the word "such," in the enacting clause (the effect of which was to make the instructions given to the commanders of our vessels general against all cruisers, as well as against the french.) his reason for making the motion was, that if this bill must pass, it might be general against all nations who commit depredations upon our commerce, for it was a fact well known that france is not the only nation which does this. it was his opinion, that before any measure of this kind was taken, we ought to know the result of our mission in france; for, however slender our expectations of an accommodation may be, still those expectations ought not to be abandoned, until we are certain our commissioners have left paris, without being able to accomplish their mission. mr. m. believed it could not be doubted by any one, that, if we had thought a state of war preferable to the state in which we had been placed for some time back, we had had sufficient provocation from more than one nation to have declared war long ago. indeed he looked upon this bill as a declaration of war in substance; he saw that this was the situation to which measures were progressing, but he could not have expected that gentlemen would have proposed a measure of this kind whilst our commissioners were yet in paris. it was his opinion, however, that, disagreeable as our present situation may be, it is much preferable to a state of war; for, notwithstanding all the losses which our merchants have sustained, our trade and our revenue are continually increasing. in the part of the country from whence he came, mr. m. said, the price of produce is now higher than it has been for some time past. but, in the case of war, it would fall, of course. notwithstanding all the evils which he was sensible must attend on a state of war, when he found our commissioners had left france, and no hope of accommodation remained, he should not hesitate to join gentlemen in any measures which shall be necessary to meet a state of war. mr. mcdowell said, the gentleman from south carolina had dwelt much upon the inconsistency of the present motion. he himself could not see any in it. he had insinuated that the mover and seconder of it must be blinded by prejudice and governed by passion; that, instead of going to war with one nation, it would be going to war with three, and that before we remonstrate with them, or request them to desist from their practices; that we have been attempting to get redress from france for eighteen months past without effect, but that no attempt has been made to negotiate with england or spain on the subject of their depredations. in this the gentleman from south carolina was certainly mistaken. he knew we had lately concluded a treaty with england, which had been constantly violated; and what faith, mr. mcd. asked, could be placed in a nation which one day makes a treaty, and the next violates it? the same remark would apply to spain, so far as they have depredated upon our commerce. mr. mcd. said, he had all along declared himself opposed to war, or to any measures which would lead to it, and he still held the same opinion. he had no prejudice against or in favor of any nation whatever, except so far as their conduct towards this country was friendly or otherwise; and he could see no reason for giving instructions to the commanders of our vessels to seize and bring in the vessels of one country which may commit depredations upon our commerce, and not those of another. he was himself opposed to the bill altogether; but, if it must pass, he wished to make it contain as little mischief as possible, and he thought by striking out the word "such," and by that means making it general, france could not take the same offence at it; as the bill now stood, it was tantamount to a declaration of war. mr. j. williams was in hopes, when the gentleman from north carolina first made his motion, that the opposition which he had heretofore shown was done away, and that the bill was only objected to because it was not general; but now it appears that gentlemen are opposed to the bill altogether. he had hoped when gentlemen had reflected upon what had taken place, even within our own jurisdiction, that there would not have been a single dissenting voice in the committee. gentlemen allege that this measure will lead to war; but he would ask whether other neutral nations had not taken measures fully as strong as this, without producing war? for his part, he supposed it might have been better if this country had gone into this system of defending our commerce. he was opposed to it for a considerable time. he was in hopes of a reconciliation taking place; but he had been deceived from time to time, and, instead of any appearance of accommodation, every day brought information which convinced him that, except we meant to submit altogether, we must defend ourselves. this being the case, he asked gentlemen which they would choose? whether they would suffer themselves to come under the power of the french nation, or repel force by force? he did not believe any gentleman would say we ought not to embrace the latter. at a time when the enemy's vessels are within our own jurisdiction, are we to withhold the necessary instructions to the commanders of our vessels? he hoped not. not that he would go hastily into war; but have we not, he asked, been in war for a long time?--a war on one side, and total submission on the other. yet the house are now called upon to postpone the consideration of this question, lest it should produce war. the only way to prevent a war, he believed, was to be prepared to meet it. if spirited measures had been taken during the extraordinary session of congress, he believed it might have prevented the loss of property to the amount of twenty millions of dollars, and the necessity of a war. but congress had gone on, from time to time, saying, we will wait for this, that, and the other, and it will, in all probability, prevent war. this conduct had produced the greatest difficulties, and yet gentlemen wish to go further in the same course. the enemy's vessels, he understood, are within the capes, and he supposed gentlemen would wait till they came up to the city, before they would take any means to oppose them. he believed it was high time to say, "we will not submit," and to prepare to repel the repeated aggressions of our enemy. mr. shepard observed, that much had been said on this bill, and on the resolutions on the same subject, which were referred to the same committee. members differed in opinion very materially as to the proper mode of conducting our affairs at this important crisis; but he could see no reason for deferring vigorous measures any longer, as he did not see the least ground of hope for a reconciliation; it was, therefore, idle to dispute about it. but gentlemen decline taking this measure, because they are apprehensive it will irritate the french nation. mr. s. believed this country could do nothing to alter the conduct of the french nation towards us, except it were by giving them money. there could be no doubt, he said, but the french meant to subjugate this government, and to lay the united states under contribution. every newspaper told them this; yet some gentlemen seem opposed to every thing intended to resist their doings, or even to tell them they have done wrong. for his part, he believed that nation had been boiling over with madness for two years past, and that they are totally void of every virtue. they have told us, said mr. s., in plain terms, they mean to subjugate us. they say they have a strong party in this country, and that they understand diplomatic agency as well as any other nation. this he believed, as he saw they had effectually used that power in subduing every country in europe that they had any thing to do with, except great britain, and he feared they would succeed against her. no man, he said, disliked war more than him; but, he believed, the best way of preserving ourselves from it, was to take measures to oppose a power which has so unjustly treated us. we ought not, he said, to trifle any longer, but take new ground. the more insults we submit to, the more we shall have. he could not suppose gentlemen would be willing to wait till all our vessels are taken and our government overcome, before they will make resistance. if we meant to preserve our independence, he believed resistance ought now to be made. it is time, said he, to tell the french nation, "we will not submit any longer." this was the way we gained our independence, and this must be the way by which we must keep it. he hoped, therefore, the bill would pass as it stands. mr. otis said, though he had sufficient confidence in the committee to induce him to believe that the present motion cannot succeed, yet he could not forbear to expostulate with gentlemen on the impropriety of any measures which should have a tendency to give unnecessary offence to other nations, besides that against which we are called upon to act. to increase our foes would only be to aggravate our misfortunes. mr. o. hoped and believed this country would be able to defend itself singly and alone; but, supposing, as gentlemen agree to be true, that we are on the eve of a war, would it not be highly impolitic to irritate a power whose assistance we may find very acceptable in the course of a few months against a common enemy? he hoped it would never be necessary to seek for this assistance, though it is possible, if we are driven into war with our old friends, that we may willingly avail ourselves of the aid of our old enemies; for, though we had suffered injuries from more nations than one, yet he agreed with our envoys in the sentiment that, if france should attack us, we must seek the best means of defence; and may find it more prudent to forgive than to provoke, by harsh measures, a nation which may aid in our defence. mr. o. said, if, after injuries had been committed against us by great britain and spain, of the same nature with those which have been heaped upon us by france, and those nations, like her, had refused to hear us, or to do us justice, he would support the same measures against them and vindicate our national character and honor. but though he should by no means attempt to extenuate the conduct of great britain or spain, he believed he might say that the depredations committed by those powers subsequent to their treaties, have been under color, at least, of the laws of nations. but the difference in the degrees of these depredations, in comparison with those of the french republic, cannot be better ascertained than by the rates of insurance paid as a security against them respectively. insurance may be effected against the spanish and british for five per cent., whilst it cannot be procured against the french for less than twenty-five or thirty per cent. and though the british cruisers do, in some cases, take our vessels, in others they afford them protection. indeed, he believed, the number of our vessels rescued from the fangs of the french, and restored to us by the british, greatly exceed in value the amount of those which have been taken from us by them since their treaty. they have saved to philadelphia about a half a million of dollars. with respect to spain, he believed her disposition towards us to be friendly, and that an injury offered by them to us was done at the instigation of another country. again, we have received, under the late treaty with great britain, £ , sterling for damages sustained by her depredations, and from spain $ , have been awarded on the same account. so that no comparison could possibly be made between the treatment we experienced from france and those countries. she makes no treaties--she pays no compensations. mr. kittera rose to observe, that one of the articles in our treaties with great britain and spain, stipulates that no reprisals shall be authorized by either country until application shall be made to the other, which he thought would be a sufficient reason for negativing the amendment. he believed it would be proper to adopt an additional rule to those already established for the government of the house, viz: that when french privateers come within our own ports and take our vessels, a long debate shall not take place upon a bill to instruct the commanders of our vessels to make reprisals. mr. gallatin, in reply to the last observation of mr. kittera, said that, if his assertion was true, that the french privateers were committing depredations within our own ports, or any where within our jurisdiction, it was no reason why this bill should pass immediately; for, without the bill, the president had full power to apply the armed vessels, or any other force at his disposal, in repelling the outrage. as to the amendment, he would not pretend to say that it was very essential; but, he supposed, the reason for moving it was this: it was asserted that this bill was not a declaration of war, but only a kind of special reprisal authorized by the law of nations; it was, therefore, thought it would be proper to make it a general regulation. if it was intended to be a declaration of war, it would be extremely wrong to make two enemies instead of one. if it was to be passed with that intention, it would be wrong to adopt the amendment; but he supposed it was introduced on the ground assumed by the supporters of the bill, that the measures proposed might be entered into without violating the laws of nations, and consistently with a state of peace. the question was put and negatived, there being only for it. the question then came up on the bill's going to a third reading; when mr. brent said he voted against the amendment offered by the gentleman from north carolina, because he apprehended its effects would be to involve us in war with two countries instead of one. the amendment of the gentleman from north carolina was to strike out the word _such_ in the bill, in which instance the commanders of our armed vessels would have been directed by the president to seize and take the vessels of any nations that shall have committed, or are found hovering on our coast for the purpose of committing, depredations on the commerce of the united states. as the bill now stands, it will only apply to french depredations; if amended as proposed, it would have applied to great britain, or any other country whose subjects or citizens are unlawfully spoliating our commerce--as he believed that the laws of nations and the stipulations of treaties had been violated in relation to us, not only by the french, but the british also, he considered the tendency of this amendment might be to involve us in war with great britain, and he did not wish to increase the number of foes with whom we were to engage in hostility. that he was accurate in his opinion that the armed vessels of great britain were at this time in the practice of violating our neutral rights, seemed to be acknowledged by others, and particularly by the member from massachusetts, (mr. otis,) who had opposed the amendment, with a suggestion that in the event of an open rupture with france, it might be expedient for us to call in the aid of england, and, supposing the amendment might have a tendency to create irritation between that country and this, it was improper that at this crisis it should be adopted. this reasoning of the gentleman from massachusetts could only be derived from an admission that great britain did not at this time respect our neutral rights; for, as the amendment only authorized the seizure of vessels spoliating our lawful commerce, there could be no danger that such a regulation would involve us in war, or produce a coolness with great britain, without a previous acknowledgment that her armed vessels were illegally depredating our commerce, and consequently would be affected by the general provision of the amendment, which, instead of confining our reprisals to french, extended it to vessels of all nations thus acting illegally in relation to ours. though, mr. brent said, he was not, under any circumstances, like the gentleman from massachusetts, for embarking our destiny with that of great britain in her present contest with france; though he should consider such an event as one of the most deplorable which could befall the united states, yet he was willing and even studious to preserve peace with great britain, notwithstanding the many injuries we had received from that quarter; on the same principle, from the same desire to preserve the tranquillity of his country, he was opposed to the bill itself. he considered this bill as perhaps determining the question, whether or not there should remain a possibility of reconciling our differences with the french republic. he considered this bill as probably dispelling every ray of hope which yet remained of a reconciliation taking place, and he hoped gentlemen would pause a moment before they adopted a measure so serious and awful. he did not see that we were at present exposed to any greater danger, or our commerce to any great extent to ravages more considerable than we had experienced for some time past. he acknowledged that our commerce had received great and repeated injuries from france; that it had long felt their injuries and still continued to suffer; yet, under all these circumstances, a disposition has been constantly evinced, and he believed was still sincerely cherished by the great mass of our people, that recourse should not be had to the last fatal resort, till every mode of amicable negotiation had been attempted, and every rational hope of a peaceable adjustment of our complaints was exhausted. from these impressions, and at a period when our commerce was suffering their unjust depredations, we had sent commissioners to the french nation; and was it proper, until we were certainly advised that our commissioners had left france, or that every hope of their effecting the object of their mission was to be abandoned, to precipitate a measure, the probable effect of which would be to destroy all prospect of reconciliation, even if, at the present moment, our commissioners should be engaged in a treaty? mr. b. said, that neither the despatches which we had received from our commissioners, nor any other intelligence from abroad, that he was acquainted with, compelled a belief that every possibility of negotiation was past; on the contrary, it was perhaps strictly within the bounds of probability, that, when the government of france discovered an inflexible disposition on our part not to accede to terms dishonorable or disadvantageous, others of a less exceptionable nature would be, and perhaps before this have been, proposed. but, in every event, what is now a matter of conjecture, a few weeks will reduce to certainty; a few weeks must bring us certain and decisive accounts from europe, and he was for postponing all deliberation respecting the very delicate subject under consideration till this intelligence arrived. at present, he believed it would be premature and inexpedient to adopt the proposed measures, and should therefore refuse to give them his assent. the question on the bill going to a third reading, was taken by yeas and nays, and stood-- to . the bill having been determined to be read a third time, the usual question was put by the speaker, "for what day shall it be made the order?" monday and to-day were answered. mr. gallatin hoped monday would be the day. he did not see the necessity for passing the bill to-day. but it was said, the house ought not to exercise their discretion upon this subject, because french privateers are within our capes. to this, he replied, that if there was any invasion of our jurisdiction, and depredations committed within it, the president of the united states had power to repel them without this law. he knew he had it, because the power is expressly given to him in the law respecting the revenue cutters; and he knew the power had been used by him when a vessel, taken by a privateer within our jurisdiction, had been restored to the owner by the president. he agreed with the gentleman from delaware, that the president had not power to employ an armed force to make reprisals of vessels within our jurisdiction which may have taken vessels belonging to the united states. besides, he understood that the senate were not in session to-day, and therefore the bill, if passed to-day, could not go any sooner to the senate than if it passed on monday. if, therefore, it could not hasten the final passage of the bill by going to the senate to-day, he wished to know what other reason could be given for so hasty a proceeding? he saw none. he saw one reason for not passing it. every hour might be expected to bring despatches from our ministers. it was known that a vessel had arrived from france which is said to have brought accounts up to the th of april. perhaps she may bring information that would produce unanimity of opinion as to the propriety of passing this bill. mr. j. parker said, as it could make no difference whether this bill passed to-day or on monday, he should be in favor of monday, as it is possible the vessel which had been mentioned might bring some advices from our envoys, though he expected nothing more favorable from that quarter than had been already received. as it was said a french privateer was within our boundary, it was probable she might commit some depredation which might be heard of before monday, which would convince every one of the necessity of passing this bill. mr. otis saw no reason for delaying the passage of this bill till monday, arising from the possibility of the vessel, which was said to have arrived from france, having brought any news; because, if information should be received from our commissioners which would give a different aspect to our affairs, the president of the united states could refrain from giving these instructions. if this bill was passed to-day, it might be reported to the senate on monday morning; but if it was postponed till monday, gentlemen might come with fresh motions and speeches, and produce a further delay. mr. davis hoped the passage of this bill would not be insisted upon to-day. this subject had but very lately been referred to a select committee, and they had made an expeditious report. he had just given his vote in favor of the bill's passing to a third reading; but if, contrary to the usage of the house, he should be called upon to vote on the passage of the bill to-day, he should vote against it. mr. varnum said, since the bill would become a law as soon if passed on monday, as to-day, he could not see why the motion was objected to. this question, mr. v. said, was of the greatest importance, as it went to plunging the country into a war from which it might not be extricated for many years to come. yet gentlemen act as if they were afraid intelligence should be received before this bill becomes a law, which shall make it unnecessary. indeed, it appeared to him, that there are certain gentlemen in the house who are determined to have a war with france, at any rate. mr. v. said, it had been complained that an allusion had been made to the coffee-house books of this city, respecting certain information from france; he did not think that was more out of order, than what was heard one day about french privateers having landed men on the coast--another, about their being in our harbors, and taking our vessels from thence. all which stories, he had no doubt, were raised to influence the votes of members of this house. the public would doubtless see them in this light. mr. sitgreaves said, as the gentleman last up appeared to have some doubt as to the fact of a french privateer's being within the bay of delaware, he would read the information lately given by a captain canby, on oath, at the office of the secretary of state. [this certificate has appeared in the papers: it speaks of having seen a french privateer four miles within the bay.] he would add, that with respect to the vessel arrived from bordeaux to-day, she brings information that our commissioners were yet in paris, but not received by the directory. she left bordeaux the th april, so that the hope of receiving any favorable news by her could not be indulged. mr. s. observed, that this bill was intended to meet a case of emergency, and it was proper to get it passed as soon as possible. if he saw it passed to-day, he should be sure there could be no difficulty about it next week; but, if it was postponed till monday, he should be afraid of further time being spent upon it. the gentleman from kentucky (mr. davis) had already said, it would not be proper to pass this bill while our envoys are in paris; therefore, though the question were postponed till monday, his vote could not be expected. he, therefore, saw no reason for the delay. the question on the bill's being read a third time on monday, was put and negatived, to . the question on reading it a third time to-day, was then put and carried. the bill was accordingly read the third time and passed by yeas , nays , as follows: yeas.--john allen, george baer, jr., bailey bartlett, james a. bayard, david brooks, stephen bullock, christopher g. champlin, john chapman, james cochran, joshua coit, william craik, samuel w. dana, john dennis, george dent, william edmond, thomas evans, abiel foster, dwight foster, jonathan freeman, henry glenn, chauncey goodrich, roger griswold, william barry grove, robert goodloe harper, thomas hartley, william hindman, hezekiah l. hosmer, james h. imlay, john wilkes kittera, samuel lyman, james machir, william matthews, daniel morgan, lewis r. morris, harrison g. otis, josiah parker, john read, james schureman, samuel sewall, william shepard, thomas sinnickson, samuel sitgreaves, nathaniel smith, george thatcher, richard thomas, mark thompson, thomas tillinghast, john e. van allen, peleg wadsworth, and john williams. nays.--abraham baldwin, david bard, lemue benton, thos. blount, richard brent, nathan bryan, dempsey burges, thomas claiborne, william charles cole claiborne, john clopton, thomas t. davis, john dawson, lucas elmendorph, john fowler, albert gallatin, james gillespie, andrew gregg, john a. hanna, carter b. harrison, jonathan n. havens, joseph heister, david holmes, walter jones, matthew locke, matthew lyon, nathaniel macon, blair mcclenachan, joseph mcdowell, john milledge, anthony new, william smith, richard sprigg, jr., richard stanford, thomas sumter, abram trigg, john trigg, philip van cortlandt, joseph b. varnum, abraham venable, and robert williams. monday, may . _marine corps._ mr. sewall called for the order of the day on the report of the committee for the protection of commerce and the defence of the country, proposing an arrangement, in one corps, of the marines, who are or shall be engaged in the service of the united states, and by annexing them to the existing military establishment, to consist of a major and suitable commissioned and non-commissioned officers, privates, and the necessary musicians. mr. gallatin wished the committee who made this report, would inform the house how many men would be wanted on board the several armed vessels of the united states. mr. j. parker said the united states have three frigates, twelve ships, and ten galleys. the two gun frigates will require fifty marines each; one of will need men; two vessels of guns each, will want each; two vessels of guns will require the same number; eight vessels of guns each will need men each; and ten galleys each men, making in the whole , exclusive of sergeants and music. there will be no additional expense attending the change except the pay of a major, and it would be much more convenient to be thus organized, than to remain as at present. mr. varnum wished to know whether these men could ever be together so as to enable the commanding officer of a battalion to discipline the corps. he believed they would be separate in the different vessels, and that there would be no means of bringing them together for the purpose. besides, those marines who have engaged in the service, have engaged to serve on board ship, and not on land, so that this law would have a retrospective effect on those men, now, to say they should serve both on sea and land. mr. sewall could not say that these marines could be brought together to be disciplined; but the major would superintend the whole, hear complaints, and attend to the recruiting service. he would also have to attend to the fortifications, and take a great deal of trouble from the war office. the men would also sometimes be on shore, and without some officer is appointed, they would be solely under the care of the lieutenant. he believed, upon the whole, much advantage and economy would be derived from it. the question being put upon the report, it was agreed to-- votes being for it. the committee then rose, and the house agreed to the report, after a few observations from mr. gallatin, hoping that, when the bill was brought in, this corps of marines would not be made a permanent part of the military establishment; but only have the same duration with the laws for equipping and keeping in employment the armed vessels. friday, june . _intercourse with france._ the bill for suspending the commercial intercourse between the united states and the french republic, was read the third time; and, after the blanks were filled, mr. gallatin inquired, whether there was not a mistake in the third section of the bill in that part which related to foreigners. the bill, as it stands, would affect vessels belonging to foreigners residing here. he proposed a change in the phraseology. mr. sewall had no objection to the alteration, and he supposed it might be made by general consent, without recommitting the bill. consent was granted, and the alteration made. the following question was then put, "shall this bill pass?" mr. mcdowell could not reconcile it to himself to give a silent vote on the passage of this important bill. he had heard no reason assigned for the introduction of this bill, either when the original proposition was before the house, or since; and, therefore, though the bill might pass by a large majority, he should give his vote against it. it had been said, by the gentleman from massachusetts, that this bill was intended to secure the property of the citizens of the united states from capture. how was this to be done? this bill will not lay an embargo, and, therefore, cannot prevent our vessels from falling into the hands of the french, or any other nation, who chooses to attack them. if gentlemen wished to effect their object, they ought to propose a general embargo; but when he found gentlemen indisposed to this, he could scarcely believe them serious in their wishes to prevent the property of our citizens from being taken. by this bill our merchants are prohibited from trading to any of the ports of france or her dependencies. this he neither thought politic or just. he thought there was no cause for going this length at present. it would be seen by the estimate on the table, the great amount of exports sent to those countries, and this bill would not only destroy the trade to france and her dependencies, but affect also all our other trade. gentlemen better acquainted with commerce than he pretended to be, would be able to ascertain the effects of this regulation with more precision than he could do; but it appeared to him that this regulation would put the whole of our exports within the power of great britain. he hoped, therefore, gentlemen would consider the inconveniences which would be produced by this measure, and not suffer their passions, which are so highly irritated against france, to lead our citizens into serious difficulties, for the sake of doing her some injury. there could be no doubt, that the moment france received the information of the passage of this bill, all negotiation would be put an end to, and they will lay their hands on all the property belonging to citizens of this country, which they can meet with. he was of opinion that the prudence of merchants alone would be sufficient to regulate the business, without legislative interference. mr. mcd. hoped, therefore, the bill would be passed, and called the yeas and nays upon it. mr. sewall said, it was very true, as the gentleman from north carolina observed, that no general reasons had been given in favor of this bill; and he did not know that any opportunity had occurred in which they could with propriety have been given. certainly if a measure meets with general approbation, and passes without argument and without discussion, it must have been carried for the best reasons. reasons, said he, are not strengthened by debate; general consent indicates the strongest reasons in favor of a measure that can be assigned. the gentleman from north carolina has supposed that the only arguments in favor of this bill was, that it would be the means of protecting the commerce of our citizens; that argument, he agreed, was forcible, but he confessed he relied upon this measure very much affecting our enemy. it occurred to the committee that this measure might very much distress the french west indies, which are the harbor of a nest of pirates, which continually assail our commerce. it is true, he said, that our commerce is also annoyed in the european seas, but in a much greater degree from vessels fitted out from the west indies; the privateers from these islands depredate our commerce upon our coast, and if no measures are taken to prevent it, they might soon be expected on our shores. any measure, therefore, which can be taken, consistent with our political situation, ought to be taken to prevent this mischief. this would not be carrying on hostility, but would withdraw from our enemies the means of supporting their hostility. gentlemen have objected to this bill because they conceive it will not have this effect; he was, on the contrary, in favor of it, because he believed it would have the effect. mr. s. considered our trade with france as at present annihilated, as well as that with spain and holland, in a great degree; and france must hereafter, if this bill passes into a law, carry on her trade with this country by means of vessels belonging to the hanse towns, sweden, or denmark; and having reduced france to the necessity of changing her measures with regard to the neutral powers of europe, she might, perhaps, be induced to change her conduct with respect to the united states, or perhaps with respect to all the neutral powers. he thought this measure recommended by these political considerations. whether it would produce all the effect which had been mentioned, he could not tell, but it was well calculated to produce it. and the only objection to the measure appeared to be, that it would produce commercial disadvantages to our merchants; but since the adoption of the decree of the french directory, which directs that all neutral vessels, with british produce or manufactures on board, shall be confiscated as good prizes, and which goes to the destruction of nearly all our trade, this objection would have but little weight, as a trade thus carried on would stand but a very small chance of producing any profit. some merchants, indeed, are of opinion that our trade to france and her dependencies has for a long time past been attended with loss instead of profit. it was evident, he said, that the decree to which he had alluded had already had the effect in this country to lower the price of our produce, as many vessels employed in that trade are now employed in a different manner. mr. gallatin must confess, without pretending to be a very good judge of the subject, that this measure appeared to him at least of a doubtful nature. the object of it is said to be to distress france and the french west indies as much as possible. how far this could be effected, or whether the attempt to distress our enemy might not distress ourselves more than the enemy, he was not able to ascertain with precision. with respect to france herself, he did not see that it could have any effect. as to the west indies, guadaloupe, which he supposed was the place principally aimed at, was so situated with respect to neutral islands that she could always procure supplies of provisions from them. the only place, then, which would be affected by this regulation would be st. domingo, and there he believed it might have some effect. if the intercourse between this country and that was stopped, it might be distressed for want of provisions; but in doing this he was persuaded we should also injure ourselves, by annihilating our commerce and sinking the price of our produce. with respect to our commerce, in six weeks or two months, all the trade which our merchants now carry on to french ports would be transferred to other neutral nations. the danes and swedes will come into our ports and carry our produce to the french islands; so that the only difference, after that time, will be that the carrying trade which we now have will be transferred to those powers. france will be supplied by way of holland or hamburg, and as the freight and other expenses attending the trade will of course be greater than if the commerce was carried on direct, it may be expected the price here will be low. it would be the same with respect to provisions. if the measure would be likely to distress france or her islands to any considerable degree, so as the better to bring her to terms of accommodation, he should not object to it. the inconveniences attending it must be encountered by our citizens; but seeing its effects on our enemy would be doubtful, and upon ourselves certain, he should vote against the bill. effectually to prevent provisions being carried to the west indies, the exportation of them ought to be forbidden, both in our own vessels and in all others. without this we cannot prevent our provisions from being exported by means of neutral vessels to french ports. so far as related to his own constituents, mr. g. said, they are not immediately concerned in this question, as they do not export their produce either to the west indies or any port of europe, but to new orleans, by the mississippi. he stated the matter as it struck him, and left other gentlemen to enlarge upon it. mr. rutledge allowed that the bill was liable to the objection which had been urged by the gentleman from pennsylvania, and which might be made against every measure which would be proposed for the defence of the country; it might be said of it that it will produce some inconvenience to our constituents, and bear hard upon the commercial and agricultural interests; but he believed no measure could be devised which would prove so injurious to france, and as little inconvenient to america, as suspending the commercial intercourse between the two countries. the gentleman from pennsylvania thinks the bill under consideration will prove fruitless, because the vessels of sweden and denmark may carry our produce to the french west indies; this could not be contemplated as a probable event; in the convulsed state in which almost all the commercial states of europe are, neutral bottoms will be in too great demand in europe to permit of their seeking freights in america. if, however, they shall come here, and the danes and swedes become our carriers, we can then adopt the regulation suggested by the gentleman from pennsylvania; we can then prohibit our intercourse with the french, even by means of neutrals; or as that may be impracticable, inasmuch as we shall not have any control over a neutral vessel after she leaves our ports, we can lay a general embargo. mr. r. thought gentlemen were greatly mistaken who imagined the present measure would lower the prices of our produce. he did not believe they would fall in consequence of the present bill or any which could be passed. he did not believe a declared war would lower the price of our grain. for some time past, an _ex parte_ war has existed; the french have made war in every sea upon our commerce, which for months past has been bleeding at every pore. government has not protected the trade of the country, but has, by preventing our vessels from arming, deprived our merchants of the use of the means their wealth afforded, of protecting themselves; thus insurance and seamen's wages have been higher, and the price of produce lower than they probably will be in a state of declared war. the grain of the state he had the honor of representing sells for less than it has done for twenty years past, or at any period of the last war; rice, which is the great staple of the country, and which, a few years ago, sold at six dollars the hundred weight, now sells but for a dollar and a half, and indian corn, which article, the year before last, sold at a dollar a bushel, now sells for twenty-five cents only. the gentleman from north carolina has insisted, that because our trade to france and her dependencies, for the two last years, has been great, we ought not to stop it. he thinks that merchants understand their interests better than we do, and that if they, who are in the habit of calculating risks, think it proper to prosecute a trade with france, that we ought not to restrain them. mr. r. allowed that our exports to france the year before the last had been great, but said that our returns had been small indeed; of the great number of valuable cargoes sent to st. domingo, very few have been paid for. the proclamations of persons in authority in that island, and other deceptive contrivances, have allured much of our property to its ports, but, arriving there, it has been arbitrarily taken at a price fixed by the government, and payment made by bills upon france, which have not been paid, and are now lying protested at paris, to the amount of many millions of dollars. so that our exports, which the gentleman says france has taken, have been literally _taken_, very little of it having been paid for. upon such terms it was impossible to suppose this commerce would continue, and it is fallacious in the extreme to calculate, as a permanent trade, that which a peculiar state of things has occasioned with the french islands for some years past, and which we are now suffering for having engaged in. mr. r. said he was not apprehensive of giving umbrage to any honest merchant or fair trader, when he declared it as his opinion, that a trade with france would not and could not be carried on at present but by persons sinking under pecuniary embarrassments. like gamblers upon the threshold of ruin, they adventure and put at hazard the remnants of their fortune to increase the chances of recovering what had been previously lost. the trade, he also believed, was in a great degree carried on for some time past by bankrupts, who, by means of bank facilities, and other credits fraudulently obtained, were enabled to speculate in a sea of danger and risk, into which they would not have gone if they had had any thing to lose. in such a state of things, it would be wise and expedient for government to interfere, and say to the merchants who are willing to continue trading with france, although you may be disposed to continue this commerce, because it is carried on upon a borrowed capital, and because it is insured in europe, yet we will put a stop to it, for we must take care of our sailors. when they are abused and imprisoned, and their captains publicly whipped in french ports, it is our duty to protect and preserve them from a continuance of such injuries. mr. r. concluded with observing, that the present bill would occasion much distress to the french islands; would be the means of preserving many of our vessels and seamen, and answer other very valuable purposes. he hoped therefore it would pass. mr. otis said, as neither of the gentlemen who had spoken on this subject had expressed an opinion which had a primary influence on his mind, he would beg leave to declare it in a few words. it was undoubtedly desirable, that this country should have a free commerce with all the world; but, under our present circumstances, with relation to france, no intercourse will be maintained with that country by the fair american merchant. he will not venture his property either to france, or to any of her dependencies. none but merchants who may have exclusive privileges in the ports of france, will now carry on this trade. he had no doubt that citizen hedouville, and other agents of the directory, would give exclusive privileges to a certain description of dealers at the expense of the fair trader. protections of this kind had been given, he believed, to favorite traders in every considerable port in the united states; and were not the proposed regulations to be adopted, these persons would be growing fat and rich, while the whole body of merchants would be suffering from the injustice and violence of the french. he did not think it would be prudent to leave room for encouragements of this kind to any of our citizens. for, while they are in the habit of receiving large favors from the agents of the french government, they will be likely to feel a stronger attachment to the interests of that country than of their own; and a stronger temptation could not be offered to them than a monopoly of the french trade. mr. o. inquired whether, in a state of war, it was not usual and proper for all nations to restrain their subjects from a direct trade with their enemies? and are we not in war? have we not passed a variety of bills which gentlemen have declared amount to war? this very morning, a bill has been passed, which, according to their construction, reaches the climax of war measures. if, then, we are now in a state of war, it will be inexpedient to continue to carry on this traffic. but, it is said, if we restrain our own citizens, it will be carried on by neutral nations. to a certain degree, it might be supposed that this would be the case; but this is one of the losses incident to a state of war. we must expect that a part of our carrying trade will be transferred to neutrals for a time; but though this will affect the mercantile part of the community, it will not wound the agricultural interest so deeply as a total suspension of commerce. if neutral vessels come hither for produce, the price will not fall so low as it otherwise would do, and the farmers will be the better able to bear the burdens which a war must necessarily lay upon them. mr. w. c. claiborne said, it was his intention to vote in favor of the passage of this bill for two reasons. the first was, we have many vessels and much property afloat on the ocean, which we cannot adequately defend, and which is now constantly depredated upon. this measure will keep many of our vessels at home. the second was, that it would tend to increase our revenue, which at this time is a very desirable thing; for he was of opinion, that the neutral powers of europe would become the carriers of our produce to the west indies. denmark, sweden, and the dutch all possess islands in the west indies in the neighborhood of the french islands, and if they come and fetch away our produce, the duty on tonnage will be increased; and the duties arising from imposts will not be lessened, as they will doubtless bring with them the produce of europe when they come out to this country. the question on the passage of the bill was then taken, and stood--yeas , nays . monday, june . mr. macon informed the house of the death of his colleague, mr. bryan, at nine o'clock this morning. the house, in consequence, entered into a resolution appointing the members of north carolina a committee to manage the funeral of the deceased, and stating that the house do attend the same. this committee afterwards reported that the funeral would take place at nine o'clock in the morning.[ ] _seditious practices._ mr. sewall, from the committee for the protection of commerce and the defence of the country, reported a bill for the prevention and restraint of dangerous and seditious practices, which was committed for wednesday. [this bill proposes, that any alien resident, or who shall come to reside within the united states, who hath been convicted of any felony, or other infamous crime, or who shall be a notorious fugitive from justice, upon any charge of treasonable or seditious practices, in any foreign state or country, or whose continuance within the united states shall be, in the opinion of the president of the united states, injurious to the public peace and safety, may be deemed and adjudged a dangerous person, and may be required to depart from the country, and be apprehended and removed therefrom. and if any person, whether alien or citizen, shall secretly or openly combine, or conspire together, with an intention of opposing any measures of the government of the united states, which are or shall be directed by the proper authority, or to defeat the operation of any law of the united states, or to discourage or prevent any person holding any place or office in or under the government of the united states, from undertaking or executing his trust or duty; and if any person, with intent as aforesaid, shall by any writing, printing, or advised speaking, threaten such officer or person in public trust, with any danger to his character, person, or property, or shall counsel or advise, or attempt to procure any insurrection, riot, or unlawful assembly or combination as aforesaid, whether such conspiring, &c., shall have the proposed effect or not, shall and may be punished, upon the conviction of the offence, by a fine not exceeding ---- dollars, and by binding, with sufficient surety for good behavior, or by imprisonment for a term not exceeding ---- years; and if the person so convicted shall be an alien, he may be farther adjudged, in lieu of such binding or imprisonment, to be banished and removed from the territory of the united states.] tuesday, june . mr. rutledge proposed a resolution to the following effect, which was unanimously agreed to: "_resolved_, that the members of this house, from a desire of showing their respect to the late nathan bryan, esq., member of this house, deceased, will go into mourning for one month, by wearing a crape on the left arm." _relations with france._ a message was received from the president of the united states, as follows: _gentlemen of the senate, and gentlemen of the house of representatives:_ i now transmit to both houses the communications from our envoys at paris, received since the last which have been presented by me to both houses. john adams. united states, _june , _. the said message, and communications referred to therein, were read, and ordered to lie on the table. wednesday, june . mr. allen proposed a resolution to the following effect: "_resolved_, that there shall be a call of the house at half past eleven o'clock every day on which the house shall sit during the present session." ordered to lie on the table. _relations with france._ mr. d. foster laid the following resolutions upon the table, viz: "whereas the french republic, regardless of those principles of good faith which ought to ensure a due observance of treaties, have, in various instances, violated the express stipulations of the treaties heretofore made and subsisting between the united states and the french nation, in a manner highly injurious to the interest and honor of the united states; by reason whereof the united states are released from all obligation on their part to respect the said treaties, or to consider themselves as holden or bound thereby. "_resolved_, that it is expedient to make a legislative declaration notifying the citizens of the united states, and all others concerned, that the said treaties are no longer obligatory upon the united states. "_resolved_, that provision ought to be made by law, authorizing the president of the united states to grant letters of marque and reprisal against all ships and other vessels, with their cargoes, found on the high seas, sailing under the authority of the french republic, or belonging to the said republic, or any of the citizens thereof, or its dependencies; to continue and be in force until the french government shall revoke and annul the orders and decrees authorizing the capture and detention of the vessels and property of the citizens of the united states, contrary to the laws of nations. "_resolved_, that provision ought to be made by law granting a bounty, in proportion to the size and number of guns, on all armed vessels (which shall be taken and brought into any of the ports of the united states) belonging to the republic of france, or to any of the citizens thereof, or of its dependencies, or to others sailing under the authority, or pretence of authority, from the said republic." they were ordered to lie upon the table. friday, june . _letters of marque, &c._ mr. d. foster then called up his resolutions relative to granting general reprisals, letters of marque, &c., which, being read, he moved to refer to the committee for the protection of commerce and the defence of the country, with power to report by bill or otherwise. mr. davis hoped these resolutions would not be referred. it appeared very strange to him that gentlemen should be desirous of taking this step at present. he had heard much in this house about french parties, and of gentlemen being attached to france, but he thought the house had witnessed, not many minutes ago, something of another party, (referring to the negative which had been put upon the resolution calling upon the president for information respecting british depredations.) and yet, when we have lately received information from france that peace is probably yet within our grasp, a motion is brought forward which, if adopted, would effectually shut out all hopes of a favorable termination of our dispute. in the conclusion of the late despatches, he read as follows: "as we were taking our leave of mr. talleyrand, we told him that two of us would return immediately, to receive instructions of our government, if that would be agreeable to the directory; if it was not, we would wait some time, in the expectation of receiving instructions." so, that two of our commissioners might be expected shortly to return, to lay certain propositions before the government here, or that they will write for farther instructions; and, whilst these things are pending, can a proposition like the present be justified? he thought not. it was not, in his mind, a declaration of war; but it was evidently a war measure. and when it is evident, from our envoys' own showing, that the negotiation between them and the minister of foreign affairs in france was in train on the th of march, the date of their last despatches, as certain propositions had been made to them which were not rejected, he thought it would be extremely imprudent to refer resolutions of so hostile a kind as these certainly are. it would be time enough, mr. d. said, to adopt a measure of this kind when our envoys shall have informed us that peace is unattainable; but, whilst they held up a contrary expectation, he could not consent to do any thing which should cast wholly away the hope of preserving a state of peace. with respect to the first resolution, which declares the treaty between france and this country void, he had not much objection to it, because it must be so considered from the laws already passed; but those which respect the granting letters of marque and general reprisals, he thought very objectionable indeed. mr. harper said, if the arguments of the gentleman from kentucky were well founded, he had not introduced them at the proper time. if he views the state of our negotiation with france in the light which he had placed it, his objections to this measure are natural and consistent; but they ought to be made, when a bill is brought in, against its being read a second time; or if the motion had now been to adopt the resolutions instead of referring them, the remarks which he had made would have been perfectly in order; but that gentleman must know that there is a great difference between committing and agreeing to adopt a resolution. he would confess that he, for one, should not now be ready to agree to any of those propositions, though a fortnight hence he might be willing to adopt them all. if the motion was, therefore, for adopting, instead of referring them, he should move a postponement, or the previous question, or take some other mode of disposing of them; but when the motion was merely to refer them to a committee who might report upon them immediately, or let them lie until farther information was received from our commissioners; or, if they report a bill, that bill might lie until gentlemen thought proper to pass upon it. he did not, therefore, see any ground for the alarm which the gentleman from kentucky has shown. he confessed he could not look upon our negotiation with france as in the happy train in which it appears to that gentleman. he knew we might have peace, if we would consent to have our property plundered _ad libitum_; or by paying a contribution to the full amount of our ability to pay, which were the terms that talleyrand and his agents had offered to our envoys; and this loan was made a _sine qua non_ by talleyrand. he could not tell, therefore, how the gentleman from kentucky could conceive the negotiation to be in good train, except he is willing to pay the tribute which france demands from us. mr. venable said, the gentleman last up had drawn a distinction between committing these resolutions and agreeing to them, and had said that he himself is not ready to agree to them. mr. v. thought resolutions of this kind ought not to be laid upon the table before the house is ready to decide upon them, as the moment the foreign nation to which they have reference hears that such resolutions have been brought forward, they will take advantage of it, and seize all the property belonging to our citizens within their power. if the resolutions are not proper, therefore, to be adopted, they ought immediately to be rejected; for, if this is not done, we may expect that not only all the property of our citizens in french ports will be seized, but that all our vessels without exception which can be met with will be taken. he hoped, therefore, if gentlemen are of opinion with him that the time for taking measures like the present is not yet arrived, that the reference would be refused. it would do infinite mischief. we ought not, he said, to show a spirit of this kind, until we are perfectly prepared to act. and as he believed the house is better calculated to judge of the propriety of thus changing the situation of the country, than any committee could be, he should not choose to ask the opinion of the committee for the protection of commerce and the defence of the country what he should do in this case. mr. r. williams observed, that the gentleman from south carolina seemed to argue in favor of committing these resolutions, as if no time would be so proper for doing so as the present. but he believed this house would be equally capable of judging of this matter hereafter as at present, and could act upon them in future as well as now. why, then, ought the house now to refer them, when even the gentleman from south carolina says he is not prepared to vote for them; but that if he were called upon now to vote upon them, he should give his negative on the question? it appeared to him, mr. w. said, that the reference of these resolutions could have no other appearance than that of a challenge, and will doubtless produce the consequences which have been mentioned by the gentleman from virginia. and however their vessels may have depredated upon our commerce, and suffered their citizens to plunder us at sea, they have not gone so far as to make it a national act to seize all the property of our citizens within their power. he was, therefore, opposed to this reference: for though, whenever the time of actual war shall arrive, (for it seemed as if it must arrive,) we shall think it necessary to do france all the mischief we can, yet he did not think it would be prudent to tell them we mean to injure them in this or that way beforehand. mr. harrison believed, that to refer these resolutions would be to give them a degree of sanction; and as he looked upon the question as very important, he should call for the yeas and nays upon it. they were agreed to be taken. mr. gallatin said, it appeared to him that the committee to whom it is proposed to refer these resolutions might, without this reference, have brought the subject before the house, as they are appointed to consider whatever relates to the protection of commerce and the defence of the country. the reference must mean something more, therefore, than a mere instruction to them to consider the subject, because they have already those instructions given to them generally in their original appointment. what, he asked, could be obtained by a vote on this subject? he was at a loss to know. he could see no possible good to be derived from it. he wished, indeed, the committee to whom it is proposed to refer these resolutions, instead of doing the business committed to them by piecemeal, in the manner which they had adopted, had laid before the house at once a complete general plan of defence consistent with the present situation of the country. a majority of this house seem not only ready to take every defensive measure, but, in a certain degree, offensive measures also. this having been once determined, the committee might very well prepare such a plan. such a plan would be more consistent and uniform, than if individual members were left to bring forward any measures which it may strike them as necessary to be taken. of what use, mr. g. asked, had been the reference of a set of resolutions made some days ago by mr. sitgreaves? no report has been made upon them. a part of them were of the same nature with these, and would authorize a report on this subject, if the committee had not the general power already mentioned. so far as any conclusion could be drawn from the despatches of our ministers, he confessed he had no great hopes of our negotiation with france being concluded in an effectual manner. he saw a kind of negotiation open between our envoys and the french minister for foreign affairs. he saw that the latter had asked for a loan; a demand inadmissible by our envoys, since it was contrary to their instructions; a demand inadmissible from any instructions they might hereafter receive, for the sentiments of the executive on that subject were well known; and, he would add, a demand inadmissible in its very nature, inadmissible in the opinion not only of this house, but of every individual in the house. so that, as long as that demand was insisted upon, no accommodation could be effected. but it must have been remarked, in the late despatches, that when our envoys inquired of mr. talleyrand whether a loan of money was the ultimatum of the french government, he did not choose to give a direct answer. this shows it to be possible that this demand may not be their ultimatum; and if not, as we have heard it reported, (though not officially,) that one of our commissioners still remains in paris, it would not be prudent to take any step that would defeat any treaty which might be in contemplation. mr. w. claiborne hoped the motion for postponement would prevail, for, though a reference of those resolutions would not be a complete sanction of them, he should consider it as a prelude to a speedy adoption. his observation on the past proceedings of the house justified this remark. mr. c. differed in opinion from the gentleman from north carolina as to the power of congress with respect to treaties. he believed congress has a right to do away any treaty by a legislative act; if not, he should think he lived under the most miserable government upon earth. what, said mr. c., is the nature of the injuries which we have received from france? have they not been wholly maritime? and have we not done all we can conveniently do for the defence of our commerce? was not all our marine force already under such regulations as to be enabled to act to great advantage in the prevention of future outrages on our commerce? why, then, shall we proceed to measures which must inevitably involve the country in war? will the adoption of these resolutions give us a single ship or gun? no. why, then, widen the breach between the two countries, by acting upon a measure more replete with impolicy than any act he ever saw introduced into that house. if it were adopted, it would go to the destruction of our commerce with several of the great commercial powers; for the moment war is declared with france, we shall also be at war with spain and holland, her allies. and when a war with spain shall take place, the commerce of the southern states and western country will be immediately gone, and all our vessels in french, dutch, or spanish ports, will doubtless be confiscated. these, he said, were evils which he foresaw would attend the adoption of these resolutions, and he called upon the mover to show a single advantage which could be derived from their adoption. he hoped, therefore, the question would be postponed for a week; and if, at the end of that period, nothing shall have transpired which will make their adoption proper, he trusted they would then be farther postponed. if france is determined to have war with us, we must and will defend ourselves; but he was desirous that no act of ours should show that we ourselves wish for war. mr. sitgreaves did not feel very solicitous whether the reference of these resolutions should or should not be postponed for one week, as he did not think so short a time would make any essential difference in the state of things; but, as he knew no good purpose that could be answered by the postponement, he should vote against it. he rose to offer his reasons in favor of the reference, generally. his colleague (mr. gallatin) had fallen into two mistakes; he had said that these resolutions are of the same nature with those which he (mr. sitgreaves) had the honor, some days ago, to lay before the house; and that the committee, to which the resolutions are proposed to be referred, have, at present, all the power which this reference would give them. he was not correct, in the first place, in saying that these resolutions are of the same nature with those formerly submitted. the former propositions suggested a course of special reprisal, in cases limited and defined; the present propositions are for letters of general marque and reprisal, which modes of proceeding are essentially different in their nature and their incidents, in their theory and practice. the present propositions, also, recommend a declaration on the subject of the treaties, to which the former ones made no allusion. he believed his colleague to be equally mistaken in his other assertion, that the committee had already power to report to the extent of these resolutions, if they should deem it expedient. their general power was to consider and report upon so much of the president's speech as relates to the protection of commerce and defence of the country; and this authority, when construed with relation to the speech, cannot be considered as going beyond the measures of defence, strictly compatible with the neutral position in which we stood at the commencement of the session; and could not, without an express reference, justify the committee in proposing broad measures of hostility. this, however, is a question of form merely. if the committee have already the power, the reference proposed can do no mischief; if they have it not already, it remains to inquire whether they ought not to have it. he conceived they ought. mr. baldwin said, that nothing was more certain than that individual members could not vote to refer a motion to a committee, as was now proposed, unless at the time they feel themselves favorably disposed to the object of the motion, and vote to refer it to a committee to further that object, and to give it practicable shape and form. the gentleman who had just sat down should reflect, that referring petitions is a matter of course, and is established by usage as a respectful form of receiving and hearing the applications of our fellow-citizens. the introduction of a petition requires no second; but a motion made and seconded, is to be regarded as a step in the actual operations of the house. for himself he must say that, with respect to the present motion, it required no time for him to be ready to declare, that he was not now favorably disposed towards it, and could not, in any shape, now give it his countenance and support. when he reflected on what they had done in the small space of a few weeks, and the course of measures which had been adopted by congress since the receipt of the despatches from our envoys, he thought they had come on, one upon another, in a succession sufficiently rapid. they must, in their nature, greatly affect the state of the country, perhaps more than was ever done before in so short a time. he thought it would be wise in the house, at present, to make a short pause, before they proceeded any further. it is a subject on which all governments are apt to err, and to proceed too rapidly. let us, said he, take a little time to ourselves, and give some time to our constituents, to look at our interests, and the state of our public affairs, in the new posture which we have given them in the course of a few weeks. our measures, he said, divided themselves into three classes; first, the internal defence of our country and of our sea-coast. on this there had been no difference of opinion; we had adopted, promptly, the same course of measures which had been adopted a few years ago, when we were threatened by another european power; we had fortified our ports and harbors, fixed row-galleys and other vessels on our coast, and ordered a draft of eighty thousand militia to hold themselves in constant readiness; and ordered a million of dollars to be expended, in procuring arms, cannon, and ammunition, to be placed all along the country in proper situations, that they may be put into use by such of our fellow-citizens as should be driven to the unfortunate necessity of defending themselves by arms. he had been glad to see such a perfect unanimity in those measures, and such a readiness, on all quarters, to vote even larger sums than were recommended in the reports for these purposes. this course of measures was founded on principles merely defensive, and related only to our own country, and our own coast within cannon shot from our shores, which, by the law of nations, is called our territory; he trusted what had been done, accompanied with the spirit and resolution of our countrymen, would render our country impregnable. the second course of measures, which he said had also been adopted, was extending our military preparations, and carrying our force beyond our own jurisdiction, on the main ocean, to defend our commerce by convoys, and to seek for and capture french privateers. on these the house had not been unanimous; they had appeared to be founded on more questionable policy; but, as the laws were passed, they would not only be cheerfully submitted to, but as vigorously supported as the others; it was now his duty to hope and expect that they would do more good than harm. the third and last course of measures, was presented to our consideration by the present motion, to put the country immediately into an actual state of war. he must say he had been surprised to hear it; he thought it very ill-timed; he must express upon it his utter disapprobation. as had been already stated, the last official information from our envoys, showed that our negotiations were still going on; and though the french minister still insisted on a compulsory loan, which our ministers justly declared to be a very inadmissible condition; yet, it ought to be noticed in the despatches that, when he was asked by mr. gerry, if they were to consider him as insisting on a loan as an ultimatum, he avoided the question, which gives reason to believe that, as things then stood, a loan or war was not an absolute inevitable alternative; it was such an alternative as he was not disposed to take, so long as it was avoidable. though our situation has been, in many respects, bad for the year past, yet in a state of actual war it will be much worse. he never turned his attention to the part of the country where he lived, but that he felt himself compelled, by every principle of duty to those whom he represented, to address and to urge every consideration to avoid going to that extreme. they have been once almost totally destroyed by war; they know, from their distance and from past experience, that prompt and adequate protection never will be extended to them. he believed no honest man, deliberating merely for the public good, could take a view of the affairs of this country, of his own home, and of his friends, and think of going into a state of war, if it is possible to avoid it. mr. dana hoped the gentleman from georgia did not want to inquire of his constituents whether they would consent to a treaty with france, in which we shall bind ourselves to pay a tribute. he trusted if that gentleman's constituents were thus to instruct him, he would refuse to obey their instructions. he hoped no member of this house could be prevailed with to set his hand to what would prove the death-warrant to the liberties of the country. mr. d. thought, therefore, that no instructions were necessary on this subject; it is not a subject proper for deliberation in the american congress, and no other terms of accommodation had been held out to us by that country. does not mr. talleyrand, said mr. d., complain of the farewell address of general washington, and of the speeches of mr. adams, and say that, before any treaty can be entered upon with us, some proof of our friendly disposition must be shown towards them, and that proof, he more than insinuates, must be a loan, or a tribute to the extent of our capacity to pay? if the despatches do not mean this, he did not know what they mean; and when mr. talleyrand was asked whether this was the ultimatum of the french government, though he does not answer in direct terms, it is clearly implied that it is so. what, then, said mr. d., are our hopes relative to france? does any body expect any thing from the terrible generosity of the great nation? can we expect any thing from their justice, or, rather, have we not every thing to expect from their vengeance, if not prepared to meet it? why do gentlemen tell the house of the danger of irritating france? he thought delicacy of this kind unnecessary, when speaking of a nation which has set at defiance every moral principle, which has taken and is determined to take our vessels, contrary to every principle of right. for himself, he felt no such delicacy; and, therefore, he was in favor of referring the resolutions under consideration. he did not think them so notoriously wrong that they are not fit subjects for deliberation. mr. j. williams wished to say a few words in reply to the remark which had been made, that members who voted for the reference of resolutions, generally vote for the resolution itself. he believed he could produce twenty instances to the contrary, where references had been made, and the measures themselves afterwards have been disagreed to. he should give his vote in favor of the committal, because he wished to see the principles of these resolutions detailed; but he by no means pledged himself to vote for the passage of the bill. the gentleman from kentucky had spoken of two parties in this country, but that the decision upon a resolution of this morning proved that there is now a third party. he supposed the gentleman who had made the motion alluded to would have given some reasons why it ought to be agreed to; but not having done that, he voted against it. [the speaker reminded mr. w. of the question.] he then observed in reply to the remark of the gentleman from north carolina (mr. r. williams) with respect to treaties, that it was clear from the writers on the laws of nations, that when one nation breaks a treaty, it is no longer obligatory on the other party. but treaties are nowadays done away, and power substituted in their place. according to the opinion which gentlemen had themselves expressed, congress had already agreed to form different measures, which would involve the country in war. if the present bill was passed (and he doubted not it would be) it will be the fifth, though the gentleman from pennsylvania has said that this reference will give the committee for the protection of commerce and the defence of the country no new power, and of course, in his opinion, it could make no difference whether these resolutions are referred or not. the yeas and nays were taken, and the question was negatived-- to , as follows: yeas.--john allen, bailey bartlett, james a. bayard, david brooks, christopher g. champlin, james cochran, william craik, samuel w. dana, john dennis, william edmond, abiel foster, dwight foster, jonathan freeman, henry glenn, chauncey goodrich, roger griswold, william barry grove, robert goodloe harper, william hindman, hezekiah l. hosmer, james h. imlay, john wilkes kittera, samuel lyman, william matthews, lewis r. morris, harrison g. otis, isaac parker, john read, john rutledge, junior, james schureman, samuel sewall, thomas sinnickson, samuel sitgreaves, nathaniel smith, george thatcher, richard thomas, mark thompson, thomas tillinghast, john e. van allen, peleg wadsworth, and john williams. nays.--george baer, jun., abraham baldwin, david bard, lemuel benton, thomas blount, richard brent, stephen bullock, dempsey burges, john chapman, thomas claiborne, william charles cole claiborne, john clopton, joshua coit, thomas t. davis, john dawson, george dent, albert gallatin, james gillespie, andrew gregg, john a. hanna, carter b. harrison, jonathan n. havens, joseph heister, david holmes, walter jones, matthew lyon, nathaniel macon, blair mcclenachan, joseph mcdowell, john milledge, anthony new, josiah parker, william smith, richard sprigg, jr., richard stanford, thomas sumter, abram trigg, philip van cortlandt, joseph b. varnum, abraham venable, robert williams, and matthew locke. mr. sitgreaves moved to postpone the consideration of these resolutions for two weeks, which motion was seconded by mr. j. parker. mr. venable inquired whether it was in order to take any further question upon the resolutions, the original motion having been negatived. the speaker answered, that the question on reference having been disagreed to, the resolutions themselves are now before the house. mr. venable said, he had thought it was not in order to enter again upon the consideration of these resolutions, after the question which had been taken upon them. he knew that, to suffer them to lie on the table, could have no effect upon the people of this country, but it might have effect on the conduct of a foreign nation, as, when they heard such resolutions were under consideration, and of course likely to be adopted, they might anticipate their being carried into law, and proceed to seize the property of our citizens in their ports. if this motion were to be negatived, or withdrawn for the present, it might be brought forward again, whenever gentlemen shall think it ought to be adopted. he was as much opposed to the suspension, as he was against the reference of these resolutions. mr. macon hoped the consideration of these resolutions would not be postponed. it was a little curious that a gentleman who was a few minutes ago against a postponement for a week, was now become an advocate for a postponement for a fortnight. the speaker said, the two questions were different. mr. rutledge rose to make this observation: that members opposed to the former motion for postponement, when a mere question of reference was under consideration, might with propriety be in favor of it when the question comes to be final upon the resolution. mr. r. wished gentlemen to use their victory with moderation. he believed the country was big with expectation that spirited measures would be entered into. he did not believe they approved of the half-measures which congress took. indeed, the countries which france had overcome, had been overcome chiefly from their taking half-measures while france had taken whole measures. he hoped the postponement would be agreed to; as if the next advices from our envoys are not more favorable than the last were, he supposed there could be no hesitation in agreeing to have these resolutions carried into effect, and to reject them would have a mischievous effect. mr. lyon called for the yeas and nays on the question, but as one fifth of the members present did not rise in favor of it, the question was not carried. mr. davis wished the mover to withdraw his resolution. the question on postponement was put and carried-- to . _alien enemies, &c._ mr. sewall, from the committee for the protection of commerce and the defence of the country, reported the bill respecting alien enemies, newly modified, which was some days ago recommitted to the committee for that purpose. also, a bill authorizing merchant vessels to defend themselves against french depredations. this bill authorizes the commanders and crews of merchant vessels to oppose the attack or search of any french armed vessel, and to repel any such search or attack by force, and to capture the vessels making such attack. all such captures to go--one-half to the owner of the vessel making the capture, and the other half to the captors. no armed merchant vessel to be suffered to clear out but such as is owned by citizens of the united states, who, together with the commander, shall enter into bond that she shall not commit any outrage against the vessels of any nation at amity with the united states, and that said vessel shall not, during her voyage, carry any articles contraband of war. a bill was received from the senate entitled "an act concerning aliens." this bill goes to authorize the president of the united states to order all such aliens as he shall deem dangerous to the united states to depart out of its territory; and if, after such order, any such alien shall be found at large, he shall be imprisoned for three years, and for ever after deprived of the privilege of becoming a citizen of the united states. and if any alien shall return to this country, after he shall have been sent out of it, he shall be imprisoned and kept to hard labor for life. and all commanders of vessels who shall arrive in any of the ports of the united states after the st day of july next, shall make a report in writing of all aliens who shall come passengers on board their vessels, giving an account of their age, profession, description of their person, &c., on pain of forfeiting three hundred dollars. these bills were severally made the order of the day for monday. saturday, june . mr. j. parker moved that the bills, with the amendments of the senate to them, for altering the time of entering stills, and for the more effectual collection of the internal revenues, be referred to a select committee. agreed to. the house spent the remainder of the day principally in going through a very long bill to provide for the valuation of lands and dwelling houses, and the enumeration of slaves within the united states, previously to the laying a direct tax on them. the bill was gone through in the committee of the whole, without any debate of consequence, except as to what related to filling the blanks intended to contain the amount to be appropriated for carrying the law into execution, the salary of the commissioners, assessors, &c. the committee had leave to sit again. no other business of importance was done this day. monday, june . mr. harper, from the committee of ways and means, reported a bill providing for the enumeration of the inhabitants of the united states; which was committed for wednesday. wednesday, june . _direct taxes._ the bill providing for the valuation of houses and lands and the enumeration of slaves within the united states, was then read the third time, and upon the question being put "shall this bill pass?" mr. davis said, he was under the necessity of opposing the passage of this bill. no part of the community would contribute more cheerfully, to the extent of their ability, to the support of the general government, than his constituents; but, from the knowledge he had of their situation; of the scarcity of circulating medium amongst them; and from the want of a market for their surplus produce, he could not give his vote in favor of a tax, which it would be with great difficulty they would be able to pay. the people of kentucky, he said, had produce of every kind, in abundance, but they want a market for it. the mississippi had lately promised a medium through which to transport it, but as yet, little advantage has been derived from it; and whenever a war shall take place, it may be expected that they would be deprived of the advantages which the free navigation of that river promises to the western country. mr. d. said, when he came from home he did not think the coin in circulation, in kentucky, amounted to $ , ; and, since that period, he was informed that money had become still more scarce. if he thought the tax would be paid without great difficulty he would have cheerfully voted for it; but believing the contrary, he was constrained to give his vote against it. mr. w. claiborne said, the people of tennessee are, in a great degree, similarly situated with those of kentucky. every one enjoyed the necessaries of life, but few of them experience those conveniences which flow from wealth. money is a scarce article amongst them; and when he reflected upon the present situation of things, and the probability there is, that the avenue which was lately opened for the disposal of the surplus produce of the state would soon be closed, he feared his constituents would be illy able to pay this tax. but if, as the gentleman from north carolina (mr. macon) on a former occasion suggested, he should be mistaken in this respect, and that the people of tennessee are well able to pay the tax, he should rejoice in the event. fearing the contrary, however, when he heard the people complaining of this grievous burden, he wished to have the consolation of saying, "i did not consent to this law, because i was of opinion that its operation would be particularly oppressive to the western people." mr. gallatin observed, it would be extremely difficult to point out any mode of taxation which will not be inconvenient and oppressive, in some degree, for some part of the people to pay; and it must be expected that every mode which can be adopted, will bear more hardly on some parts of the community than on others. with respect to the tax on land, he must agree with the gentleman from kentucky and tennessee, that, from there being a less quantity of circulating medium in their states than any other state of the union, it would probably fall heavier upon their constituents than upon people of the atlantic states. but there is one circumstance with respect to those states which ought to be taken into consideration, viz: that the tax for this year will be laid according to the old census taken seven or eight years ago; since which time, it is well known that the population of these states has more than doubled. therefore, the inconvenience of paying this tax will be greatly lessened to these states by that circumstance. in the state of tennessee, by the old census taken in , there were only , inhabitants, whereas, by a census taken in that state by themselves, two years ago, the number exceeded , . besides, it appeared to him that both the gentlemen assumed a principle by no means ascertained, viz: that the mississippi will be shortly closed to the western country. no people could suffer more by such an event than the people whom he himself represented. they stood precisely in the situation of the constituents of those gentlemen; and undoubtedly, if our present difficulties with france should produce a war with spain, it would be extremely fatal to his constituents as well as theirs. but he knew of no reason for supposing this; and it would be wrong to legislate on a presumption that such will be the case. in relation to this law, it was not formed, mr. g. said, altogether to his wish; but it was as nearly so as he could get it, and it was necessary the money should be raised. he had opposed, as long and as forcibly as he was able, most of the measures which made the great expenses of the present session necessary; but a majority having determined that the expense shall be incurred, and that measures shall be taken which will necessarily decrease our present revenue, it has become the duty of every member to provide the means for paying the expense to be incurred, and for supplying the probable deficiencies of former revenues. if the expense is to be provided for, how is it to be done? it must be either by taxation or by loans. indeed, it is probable that congress will be obliged to resort to loans, even during the present session; but certainly it is their duty, as far as they are able, to provide for the public expenses, without going into measures which will increase the public debt. our choice lies, therefore, between loans and taxation; and however inconvenient it may be to the people to pay taxes, he should certainly resort to taxes rather than loans. and if the money is to be raised by taxes, to what objects can we turn our attention? congress must have recourse to internal revenue, or an increase of duty on the importation of some of the necessaries of life. indeed, after turning his attention very seriously to the subject, he could not find how any considerable revenue could be raised, but by means of a direct tax on land and houses, or a tax on salt. he did not think any other could be relied upon; and, between the two, he believed it would be infinitely better, both for the united states and his constituents, to lay a tax on land and houses than on salt. the tax on land and houses will be laid according to the value of the property; and though there is less circulating medium in the back country, which is thinly settled, than in the larger towns, the property in those parts will be estimated at a much lower rate, and of course the people will have a smaller proportion of the tax to pay; and he thought it far preferable to lay a tax which would fall, in a great degree, upon persons according to their wealth, than one which would operate as a _poll tax_, (as a tax on salt would do,) according to their number. mr. davis said, he believed he could prove to the gentleman from pennsylvania (mr. gallatin) that his conclusions with respect to the ability of the people of the state of kentucky to pay this tax, were not altogether correct; and that the number of the people inhabiting the state now, being double what it was when the last census was taken, will afford them no relief. for, if there were $ , in circulation in the state, when there were only , inhabitants, and no more, now there are , --the tax would fall no lighter now than it would have fallen then. how, it might be inquired, does it happen that, though the population is so greatly increased, no increase should have been made in the quantity of circulating specie? it happens thus: men who emigrate from the atlantic states to this country, seldom bring much money with them; for, whatever they may have when they set out, it is expended on their journey, or paid for land to a single person when they reach us, so that none of their money comes into general circulation and though the people are able to raise plenty of produce, they are not able to exchange it for money. it is true, the more inhabitants they get, the more the general property of the state is increased, but it did not increase the circulating medium. he did not believe there is now so much money in circulation as there was when the census was taken. there was then an army there, and produce sold for a good price; but since a peace was made with the indians, money has been constantly draining off from the state, to pay the debts which the merchants of that state had contracted whilst trade was brisk in this and other cities. mr. s. smith did not think the fears of the gentlemen from kentucky and tennessee would be realized. it is no doubt true that the quantity of circulating specie in kentucky had diminished since the peace with the indians; but it is also true that the spring trade this year from kentucky by the mississippi has been both great and profitable. but gentlemen suppose, if we have a war with france, we shall also be at war with spain, and our intercourse by that river will be cut off. but the interest of spain will be against this; for in case of war, there will be great difficulty in getting flour to the havana from the atlantic ports, as our west india trade will be cut off, and they will have to depend upon a supply by the mississippi. besides, if produce be so much cheaper in the western country than in the atlantic states, as it has been stated to be, it will become the interest of neutrals in the atlantic cities, to make remittances by produce from that country to the havana. and if spain should be drawn into the war, there would be other modes of the people of those states disposing of their produce. he did not think, therefore, gentlemen from that country need be so much alarmed as they appeared to be. mr. j. williams had always been opposed to every system of direct taxes; but as a majority of the house had agreed to call forth the resources of the country by this means, he must give his vote for this bill. he was astonished to find the gentlemen from kentucky and tennessee opposing this bill, when so much of the money of the general government had been expended in that country. they must acknowledge their states have had their portion of specie from the treasury of the united states. an act had indeed been passed during the present session for paying a company of militia for a certain expedition in tennessee, which amounted to nearly one fourth of the whole sum required from that state. he believed some of the troops of the united states are also now there, and likely to continue, so that they are constantly receiving supplies of cash from the treasury of the united states. besides, it ought to be considered that this tax will fall upon unimproved, as well as improved land, many of the owners of which, he supposed, lived out of that state, which would reduce the portion of the tax to the state. the district in which he lived would pay more tax than the whole state of tennessee. he knew the tax would be collected in some places with difficulty, and more so, since the bill had undergone a change which had thrown the tax upon land more than it would otherwise have fallen. but, whatever difficulty may attend the collection of this tax, when we see the ruinous effects of public debt in other countries, we ought to be cautious how we make extensive loans, and endeavor to draw forth the resources of the country, to meet any of the expenses which we may have to encounter. mr. varnum should vote against this bill. he had always thought, since the establishment of the present government, that there would be no necessity for resorting to direct taxes, except in case of our being engaged in war. he believed the measures already taken would not require a direct tax if no further expenses were contemplated. but he now believed a majority of the government of the united states are determined on war, and he would, on that account, have given his vote for the bill, if the tax was proposed to be laid on just and equal principles. it was his opinion, that every species of property ought to be taxed, as well as houses and land. so far from this being the case, he believed that between one third and one half of the property taxed by the state legislatures, in their system of direct taxes, would, by the present plan, be excused altogether from tax. some of the most wealthy people in the union would, by this means, be untaxed, in a great degree, while persons who hold a small property in houses or land, will bear the burden of it; and not only of this tax, but to any further extent to which the government may have occasion to carry it. mr. t. claiborne had opposed many of the measures which made this tax necessary; but a majority of congress having determined upon a certain course of measures, however contrary they may be to his opinion, he should cheerfully submit to them, and vote in favor of this bill. the people of virginia, if they must be taxed, wished to be taxed in a direct way, and he doubted not this tax would be paid with alacrity. they always had been, and would continue to be, he had no doubt, prompt in their obedience to the laws of the general government. the yeas and nays were then taken upon the passing of the bill; it was passed-- votes to . _resolved_, that the title be, "an act to provide for the valuation of lands and dwelling houses, and the enumeration of slaves, within the united states." thursday, june . _relations with france._ in the course of the sitting, the following message was received from the president of the united states: _gentlemen of the senate, and gentlemen of the house of representatives:_ while i congratulate you on the arrival of general marshall, one of our late envoys extraordinary to the french republic, at a place of safety, where he is justly held in honor, i think it my duty to communicate to you a letter received by him from mr. gerry, the only one of the three who has not received his congé. this letter, together with another from the minister of foreign relations to him, of the third of april, and his answer of the fourth, will show the situation in which he remains, his intentions and prospects. i presume that, before this time, he has received fresh instructions, (a copy of which accompanies this message,) to consent to no loan, and therefore the negotiation may be considered as at an end. i will never send another minister to france, without assurances that he will be received, respected, and honored, as the representative of a great, free, powerful, and independent nation. john adams. united states, _june , _. paris, _april , _. my dear sir: this, i expect, you will receive by my colleague, general marshall, who carries with him the last letter of mr. talleyrand to the american envoys, and their answer. on the day when we sent the answer, i received a letter from the minister, a copy of which and my answer is enclosed. i have not sent these to the secretary of state, because i have not time to prepare a letter to accompany them. indeed, i expected my passport with my colleagues, but am informed the directory will not consent to my leaving france; and to bring on an immediate rupture, by adopting this measure contrary to their wishes, would be, in my mind, unwarrantable. the object of mr. talleyrand, you will perceive, was to resume our reciprocal communications, and again to discuss the subject of a loan. i thought it best, in my answer, not merely to object to this, but to every measure, that could have a tendency to draw me into a negotiation. i accepted of this mission, my dear sir, to support your administration, and have brought myself into a predicament,[ ] which you must assist me to extricate myself from, by appointing some others to supply the places of myself and colleagues, if a further progress in this business should be found practicable. i have only a moment to add my best respects to your lady, and my assurance of the most sincere and respectful attachment. my dear sir, yours, sincerely, e. gerry. the president of the united states. [translation.] paris, _the th germinal, th year of the french republic, one and indivisible, april , _. the minister of foreign relations to mr. gerry, envoy extraordinary of the united states of america to the french republic. i suppose, sir, that messrs. pinckney and marshall have thought it useful and proper, in consequence of the intimations given in the end of my note of the th ventose last, and the obstacles which their known opinions have interposed to the desired reconciliation, to quit the territory of the republic; on this supposition, i have the honor to point out to you the th or the th of this decade, to resume our reciprocal communications upon the interests of the french republic and the united states of america. receive, i pray you, the assurances of my perfect consideration. ch. mau. talleyrand. monday, june . _alien enemies._ on motion of mr. s. smith, the house went into a committee of the whole on the bill respecting alien enemies. the chairman stated, that when this bill was formerly under consideration, a motion was made to strike out the first section, which was negatived. he proceeded to read the second. mr. otis hoped the committee would rise. he made this motion with a view of moving, in the house, a postponement of the consideration of this bill until the next session of congress. he did not know that there was any immediate necessity for it, the president having sufficient power over aliens by the bill already passed. mr. gallatin said, he did not expect a motion of this kind. if any bill respecting aliens was necessary, it was certainly a bill of this kind against alien enemies; but a bill having been passed against aliens generally, the gentleman from massachusetts appears now to be willing to pass by the bill against alien enemies. this gives a new coloring to the business, and it seems as if gentlemen were more desirous of guarding against alien friends than alien enemies. it is true, if this bill is not passed, the president of the united states will have the power of removing from the country all those aliens whom he may think it necessary and proper to be removed, whether they are alien enemies or alien friends. but, if alien enemies are really dangerous, it cannot be supposed that the president can remove them all. this bill, therefore, provides in what manner they may be laid under certain restraints by way of security. mr. otis interrupted mr. g. to say he would withdraw his motion. he made it, because he expected the bill would have been objected to by the gentleman from pennsylvania and his friends. since they were agreeable to pass it, he had no objection to it. the committee rose and reported the bill, and it was ordered to be read a third time to-morrow. thursday, july . _punishment of crime._ sedition. a bill was received from the senate in addition to the act for the punishment of certain crimes against the united states, which was read the first time. [this bill provides, that if any persons shall unlawfully combine or conspire together, with intent to oppose any measures of the government of the united states, or to impede the operation of any law, or to intimidate or prevent any person holding an office under the government from exercising his trust. and if any person shall, by writing, printing, or speaking, threaten such officer with any damage to his character, person, or estate, or shall counsel, advise, or attempt to procure any insurrection, riot, &c., whether such attempt shall have the desired effect, or not, he shall be deemed guilty of a high misdemeanor, and punished by a fine, on conviction, not exceeding $ , , and by imprisonment not less than six months, nor exceeding five years. and if any person shall, by any libellous or scandalous writing, printing, publishing, or speaking, traduce or defame the legislature of the united states, by seditious or inflammatory declarations or expressions, with intent to create a belief in the citizens thereof, that the said legislature in enacting any law, was induced thereto by motives hostile to the constitution, or liberties and happiness of the people thereof; or shall in manner aforesaid, traduce or defame the president of the united states, or any court, or judge thereof, by declarations tending to criminate their motives in any official transaction, the persons so offending, being convicted shall be punished by a fine not exceeding $ , and by imprisonment not exceeding two years.] mr. otis moved that it be read a second time. mr. harrison called for the reading of the amendments to the constitution. the speaker said, the only motion in order, if objections were made to the second reading of the bill, would be to reject the bill. mr. livingston made that motion. mr. allen.--i hope this bill will not be rejected. if ever there was a nation which required a law of this kind, it is this. let gentlemen look at certain papers printed in this city and elsewhere, and ask themselves whether an unwarrantable and dangerous combination does not exist to overturn and ruin the government by publishing the most shameless falsehoods against the representatives of the people of all denominations, that they are hostile to free governments and genuine liberty, and of course to the welfare of this country; that they ought, therefore, to be displaced, and that the people ought to raise an _insurrection_ against the government. in the _aurora_, of the th of june last, we see this paragraph: "it is a curious fact, america is making war with france for _not_ treating, at the very moment the minister for foreign affairs fixed upon the very day for opening a negotiation with mr. gerry. what think you of this, americans!" such paragraphs need but little comment. the public agents are charged with crimes, for which, if true, they ought to be hung. the intention here is to persuade the people that peace with france is in our power; nay, that she is sincerely desirous of it, on proper terms, but that we reject her offers, and proceed to plunge our country into a destructive war. this combination against our peace is extensive; it embraces characters whose stations demand a different course. is this house free from it? recollect what a few days ago fell from the very gentleman (mr. livingston) who now so boldly and violently calls on us to reject this bill at the instant of its coming before us, without suffering it to be read a second time. the gentleman proposed a resolution requesting the president to instruct mr. gerry to conclude a treaty with the french government; and declared that "he believed a negotiation might be opened, and that it was probable a treaty might be concluded which it would be honorable to the united states to accept. he did not wish to frustrate so happy an event by any punctilio, because they had refused to treat with three envoys, but were willing to treat with one." this is in the very spirit of the malicious paragraph i just now read. it is pursuing the same systematic course of operations. the gentleman also said, (what has not been published, however,) that "the commission of the envoys being joint and several, mr. gerry had unquestionably ample powers to treat alone." here are circumstances of what i call _a combination against the government_, in attempts to persuade the people of certain facts, which a majority of this house, at least, and of the people at large, i believe, know to be unfounded. who can say that mr. gerry has power to treat alone, or that the french government is willing to treat with him on fair and honorable terms? gentlemen do not believe either, let them say what they will. does such a commission empower one to exercise the functions of the whole in opposition to the opinions of his colleagues? it would produce the most inextricable confusion. the severalty of the powers is well known always to be a provision against such accidents as may prevent or disable a part of the commissioners from acting. i mention these things to show what false ideas gentlemen endeavor to impress the public mind with on this subject. the gentleman (mr. livingston) makes his proclamation of war on the government in the house on monday, and this infamous printer (bache) follows it up with the tocsin of insurrection on tuesday. while this bill was under consideration in the senate, an attempt is made to render it odious among the people. "is there any alternative," says this printer, "between an abandonment of the constitution and resistance?" he declares what is unconstitutional, and then invites the people to "resistance." this is an awful, horrible example of "the liberty of opinion and freedom of the press." can gentlemen hear these things and lie quietly on their pillows? are we to see all these acts practised against the repose of our country, and remain passive? are we bound hand and foot that we must be witnesses of these deadly thrusts at our liberty? are we to be the unresisting spectators of these exertions to destroy all that we hold dear? are these approaches to revolution and jacobinic domination, to be observed with the eye of meek submission? no, sir, they are indeed terrible; they are calculated to freeze the very blood in our veins. such liberty of the press and of opinion is calculated to destroy all confidence between man and man; it leads to a dissolution of every bond of union; it cuts asunder every ligament that unites man to his family, man to his neighbor, man to society, and to government. god deliver us from such liberty, the liberty of vomiting on the public floods of falsehood and hatred to every thing sacred, human, and divine! if any gentleman doubts the effects of such a liberty, let me direct his attention across the water; it has there made slaves of thirty millions of men. at the commencement of the revolution in france those loud and enthusiastic advocates for liberty and equality took special care to occupy and command all the presses in the nation; they well knew the powerful influence to be obtained on the public mind by that engine; its operations are on the poor, the ignorant, the passionate, and the vicious; over all these classes of men the freedom of the press shed its baneful effects, and they all became the tools of faction and ambition, and the virtuous, the pacific, and the rich, were their victims. the jacobins of our country, too, sir, are determined to preserve in their hands the same weapon; it is our business to wrest it from them. hence this motion so suddenly made, and so violently supported by the mover, to reject this bill without even suffering it to have a second reading; hence this alarm for the safety of "the freedom of speech and of the press." mr. harper said, if, in voting against the rejection of this bill, his vote should be considered as giving his assent to all its provisions, it would be misunderstood. he thought it right and necessary to make a law on the subject; but not exactly such a law as the present, his particular objections to which he should make known when the subject was fully before him. he should vote against a rejection of the bill, because to vote for it, would be to declare that no law ought to be passed to restrict seditious writing and speaking, which was not his opinion. he had often heard in this place, and elsewhere, harangues on the liberty of the press, as if it were to swallow up all other liberties; as if all law and reason, and every right, human and divine, was to fall prostrate before the liberty of the press; whereas, the true meaning of it is no more than that a man shall be at liberty to print what he pleases, provided he does not offend against the laws, and not that no law shall be passed to regulate this liberty of the press. he admitted that a law which should say a man shall not slander his neighbor would be unnecessary; but it is perfectly within the constitution to say, that a man shall not do this, or the other, which shall be injurious to the well-being of society; in the same way that congress had a right to make laws to restrain the personal liberty of man, when that liberty is abused by acts of violence on his neighbor. mr. h. knew the liberty of the press had been carried to a very considerable extent in this country. he had frequently seen private character vilely calumniated; he had himself come in for a share of abuse, but he had always despised the base calumniators, believing that a man's propriety of conduct would always be sufficient to shield him against these slanders. when he saw the president of the united states and the government of the union defamed, he still despised them, and he believed also that the people were not affected by them, because he saw they did not rise in insurrection against the government; and if they had not believed that all the things which were said respecting the government were vile falsehoods, he should have thought the people the most wretched fools, had they not risen against it. mr. nicholas was sorry this motion had been made, because it prevents members from going into the modification of the bill, which he was convinced would completely exemplify the folly of the principle; but until gentlemen saw what form the bill was finally to take, it was impossible to speak with precision on its merits; because if the declarations of the gentlemen from connecticut and south carolina were attended to, it would be found they are most afraid of the speeches and letters of gentlemen in this house. they acknowledge, however, they cannot prevent members from speaking what they please here. what, then, is their aim? do they mean to prevent the publication of their sentiments to their constituents and to the world? if this was not their intention, he could not tell what it was. there was one general view of this subject, which mr. n. took to be the most momentous that this country ever saw. he was ready to go with gentlemen into measures for affording a liberal support to the war, which it appears must be gone into; but he was not ready to create a _domestic tyranny_. the people of this country are competent judges of their own interests, and he was desirous that the press should remain perfectly free to give them every information relative to them; and to restrict it, would be to create a suspicion that there is something in our measures which ought to be kept from the light. it was striking at the root of free republican government, to restrict the use of speaking and writing. he wished, however, to see the bill put into such a shape as the friends of it themselves might approve. mr. livingston said, after receiving the chastisement of the gentleman from connecticut on one cheek, he, like a good christian, had turned the other to the gentleman from south carolina, and received the stripes of both. he expressed his acknowledgments to these gentlemen, however, if not for their chastisement, for the insight which they had given the house into this bill. they have said, its design is not only to restrict the liberty of the press, which is secured by the constitution, but the liberty of speech on this floor. the gentleman from south carolina did not say explicitly that he wished this; but he said he was regardless of what was said in the public papers, either of private or personal slander, or of a slander on the government, until he heard a certain speech delivered in this house; and though he said he did not intend to restrict the liberty of speech in this house, he must have had something of the kind in view. [mr. harper said it was not his intention to restrict the freedom of speech on that floor, but the consequences of it out of doors.] then, said mr. l., he will either restrict the members from speaking, or, in some way, prevent the people from knowing what has been said. how is this to be done? by shackling newspapers, and preventing that free communication of sentiment which has heretofore been expressed on public topics. the gentleman from connecticut had been pleased to read a quotation from some observations which he had made on a former occasion, which that gentleman thought highly blamable. mr. l. said, what he had read he avowed to be his sentiments. he avowed them with pride, and he trusted he should always avow them with pride. nor could he see how acts made contrary to the constitution could be binding upon the people; unless gentlemen say congress may act in contravention to the constitution. [mr. otis asked who were to be the judges?] mr. l. answered, the people of the united states. we, said he, are their servants, when we exceed our powers, we become their _tyrants_! this is one object of complaint; the other is against newspaper publications. the gentleman from south carolina has said, that provided the law is clear and well defined, and the trial by jury is preserved, he knew of no law which could infringe the liberty of the press. if this be true, congress might restrict all printing at once. we have, said he, nothing to do but to make the law precise, and then we may forbid a newspaper to be printed, and make it death for any man to attempt it! if this be the extent to which this bill goes, it is not only an abridgment of the liberty of the press, which the constitution has said shall not be abridged; but it is a total annihilation of the press. were he then to withdraw his motion, he should consider himself guilty of treason; by his consent, so unconstitutional a measure should not progress an inch. however unsuccessful he might be, he would oppose it in every stage. mr. otis supposed the opposition to this bill arose chiefly from prejudice, as gentlemen could not be so well acquainted with the bill from hearing it once read, as to say there are no parts of it which ought to become law. he had not nicely examined the merits of this bill, but he heard that it contained several important provisions, and he should certainly be opposed to a rejection of it without a perusal. to vote for such a motion, would be to say, we will not examine the bill; and yet he believed there was nothing in it contrary to the common law of the several states of the union. mr. macon had no doubt on his mind that this bill was in direct opposition to the constitution; and that if a law like this was passed, to abridge the liberty of the press, congress would have the same right to pass a law making an establishment of religion, or to prohibit its free exercise, as all are contained in the same clause of the constitution; and, if it be violated in one respect, it may as well be violated in others. several laws had been passed which he thought violated the spirit, but none before this which directly violated the letter of the constitution; and, if this bill was passed, he should hardly think it worth while in future to allege against any measure that it is in direct contradiction to the constitution. laws of restraint, like this, mr. m. said, always operate in a contrary direction from that which they were intended to take. the people suspect something is not right, when free discussion is feared by government. they know that truth is not afraid of investigation. if, said mr. m., the people are so dissatisfied with government as some gentlemen would have it believed, but which he did not credit, by passing a law like the present you will force them to combine together; they will establish corresponding societies throughout the union, and communications will be made in secret, instead of publicly, as had been the case in other countries. he believed the people might be as safely trusted with free discussion, as they whom they have chosen to do their business. it was a most extraordinary thing, mr. m. said, that at a time like this, when some gentlemen say we are at war, and when all believe we must have war, that congress are about to pass a law which will produce more uneasiness, more irritation, than any act which ever passed the legislature of the union. no gentleman, in support of the bill, has gone into the constitutional question; no one has shown what part of the constitution will authorize the passage of a law like this. he believed none such could be adduced. the gentleman from massachusetts (mr. otis) has said, this bill is conformable to the common law. he knew persons might be prosecuted for a libel under the state governments; but if this power exists in full force at present, what necessity can there be for this bill? mr. mcdowell was in hopes that when the third article of the amendments to the constitution had been read, that the unconstitutionality of this bill would have been so evident, that it would have been rejected without debate. mr. mcd. was sorry that the gentleman from connecticut should have thought it necessary to have taken up so much of the time of the house by reading paragraphs from newspapers, which every body had seen; but it might have been expected after the gentleman had taken so much pains to vilify and abuse the printer of one of the papers of this city, a citizen of respectable character and connections, that he should have taken at least some notice of another, called the british printer, who boasts of being a subject of king george, and who is generally supposed to be in the pay of the british minister--whose paper contains more libels and lies than any other in the united states, and who, notwithstanding, is countenanced by characters whom he was sorry to see have any connection with such a man; whose constant daily business it is to abuse, and render ridiculous, every member of our government who does not in every thing fall in with the british views. as to what had been said with respect to the circular and other letters of members which have been published, he had seen some of them and heard of others. it was not any thing which the gentleman from south carolina could say, which would prevent him from speaking and writing his sentiments freely. the gentleman from south carolina said he had seen a letter in the papers the signature of which he knew. he should be glad to know where he saw the signature to know it? he had seen a letter in fenno's paper, signed _mcdowell_, followed by some violent strictures on the letter, and on the author. the letter he owned to be his, but the insinuations contained in the observations upon it were as false as they were malicious. mr. harper said, he knew the gentleman wrote the letter in question; but he would assure him he did not see it under seal, nor did he break the seal, or write the strictures upon it. mr. gallatin wished that the bill had been committed before any debate had taken place, as in its present stage, any observations on details susceptible of amendment would be out of order; and he must now confine himself to the general question "does the situation of the country, at this time, require that any law of this kind should pass? do there exist such new and alarming symptoms of sedition, as render it necessary to adopt, in addition to the existing laws, any extraordinary measure for the purpose of suppressing unlawful combinations, and of restricting the freedom of speech and of the press?" for such were the objects of the bill, whatever modifications it might hereafter receive. the manner in which the principle of the bill had been supported, was perhaps more extraordinary still than the bill itself. the gentleman from connecticut, (mr. allen,) in order to prove the existence of a combination against the constitution and government, he communicated to the house--what? a number of newspaper paragraphs; and even most of those were such as would not be punishable by the bill as it now stands. the object of that gentleman in wishing a bill of this nature to pass, extended far beyond the intention of the senate who had sent down this bill; far beyond, he would venture to say, the idea of any other member upon this floor, besides himself. his idea was to punish men for stating facts which he happened to disbelieve, or for enacting and avowing opinions, not criminal, but perhaps erroneous. thus one of the paragraphs most obnoxious to the gentleman from connecticut, was that in which the writer expresses his belief that mr. gerry may yet make a treaty with the french government, his powers being sufficient for that purpose. [mr. allen said, his charge was against persons making this assertion, when they knew it to be unfounded.] mr. g. said, he did not understand the gentleman's explanation. he now says that the act he condemns is the assertion of a fact, which may be true, but which the writer himself disbelieves; and thus he wished to punish such men as, according to his caprice, he may suppose guilty of expressing opinions not consonant with their own sentiments. for by what rule of evidence could he discover and know what was really the writer's belief? but, to return, was there any thing criminal in that paragraph? it asserted that mr. gerry had powers sufficient to treat. the gentleman from connecticut denies this to be true. mr. g. would aver that it was an undeniable fact, as appears evidently from the documents now on the table. they showed that the powers given to the envoys were joint and several. and, if mr. gerry had powers to treat, how could it be criminal to say that he might treat? or supposing the writer of the paragraph to have said, that he believed mr. gerry would treat, could the opinion be charged with any thing but being erroneous? when a paragraph of this nature was held out as criminal, what writings, what opinions could escape the severity of the intended law, which did not coincide with the opinions, and which might counteract the secret views of a prevailing party? the gentleman from connecticut had also quoted an extract of a letter said to be written by a member of congress from virginia, and published in last saturday's aurora. the style and composition of that letter did the highest honor to its writer. it contained more information and more sense, and gave more proofs of a sound understanding and strong mind, than ever the gentleman from connecticut had displayed, or could display on this floor. so far he would venture to say, although he had given but a cursory reading to the letter, and he was altogether at a loss to know what was criminal in it, though he might easily see why it was obnoxious. was it erroneous or criminal to say that debts and taxes were the ruinous consequences of war? or that some members in both houses of congress uniformly voted in favor of an extension of the powers of the executive, and of every proposed expenditure of money? was it not true? gentlemen of that description avow that, in their opinion, the executive is the weakest branch of government; and they act upon the ostensible principle that, on that account, its influence and powers must be increased. look at the laws passed during this session. look at the alien bill, at the provisional army bill, look at the prodigious influence acquired by so many new officers, and then deny that the powers of the executive have not been greatly increased. as to the increased rate of expenditure, and the propensity of these gentlemen to vote money, they would not themselves deny it. was it criminal to say that the executive is supported by a party? when gentlemen declared that it must be supported by a party. when the doctrine had been avowed on this floor that men of a certain political opinion, alone ought to be appointed to offices; and when the executive had now adopted and carried into practice that doctrine in its fullest extent? mr. dana did not propose to enter into any controversy respecting the honor which some gentlemen seemed disposed to arrogate to themselves, on account of certain sentiments which they have avowed. if any members of that house were ambitious of being distinguished as heralds of calumny and apostles of insurrection, it might serve to show how incorrect were their ideas of what is truly honorable. the bill has two objects in view--it proposed to punish conspiracies and calumnies against the government. against this bill, the freedom of speech and of the press has been insisted on; and the bill has been condemned as violating one of the articles adopted as amendments to the constitution. why is the gentleman from pennsylvania so very anxious on the subject? or is it abridged by a law to restrain lying? could the framers of the constitution intend to guarantee, as a sacred principle, the liberty of lying against the government? what do gentlemen understand by "the freedom of speech and of the press?" is it a license to injure others or the government, by calumnies, with impunity? let it be remembered, that the uttering of malicious falsehoods, to the injury of the government, is the offence which it is now intended to restrain; for, if what is uttered can be proved true, it will not, according to this bill, be punished as libellous. what, then, is the rational, the honest, the constitutional idea of freedom of language or of conduct? can it be any thing more than the right of uttering and doing what is not injurious to others? this limitation of doing no injury to the rights of others, undoubtedly belongs to the true character of real liberty. indeed, can it, in the nature of things, be one of the rights of freemen to do injury? let gentlemen consult any writer of established reputation on this subject; let them examine the constitution of their own favorite "terrible" republic! they will not find the ideas of liberty extended to that indefinite latitude which they advocate on this floor. however, if there are gentlemen who seriously and conscientiously believe that it would be violating the constitution to restrain abuses of the press, by punishing the guilty; if there are gentlemen who believe that malicious calumnies against the government ought to be uttered and published with impunity, such gentlemen ought certainly not to consent to act further upon this subject. mr. d. was of a different opinion. he believed that the editor of a newspaper, like the writer of a public history, in the execution of his office, should dare to utter what is true, and dread to utter any thing that is false. considering, therefore, that the liberty of lying, the privilege of vice, is what is truly intended to be corrected by this bill, how is it possible that gentlemen should appear so anxious to excite clamor against it? for himself, mr. d. wanted not the liberty of calumny or of conspiracy, and was in favor of the principle of the bill. the question on rejecting the bill, was taken by yeas and nays--yeas , nays , as follows: yeas.--david bard, lemuel benton, thomas blount, dempsey burges, thomas claiborne, william charles cole claiborne, john clopton, john dawson, john fowler, albert gallatin, james gillespie, andrew gregg, john a. hanna, carter b. harrison, jonathan n. havens, joseph heister, david holmes, walter jones, edward livingston, matthew locke, matthew lyon, nathaniel macon, blair mcclenachan, joseph mcdowell, anthony new, john nicholas, samuel smith, william smith, richard sprigg, jun., richard stanford, thomas sumter, john trigg, philip van cortlandt, joseph b. varnum, abraham venable, and robert williams. nays.--john allen, george baer, jr., bailey bartlett, jas. a. bayard, david brooks, stephen bullock, christopher g. champlin, john chapman, james cochran, joshua coit, william craik, samuel w. dana, george dent, william edmond, thomas evans, abiel foster, dwight foster, jonathan freeman, henry glenn, chauncey goodrich, william gordon, roger griswold, william barry grove, robert goodloe harper, william hindman, hezekiah l. hosmer, james h. imlay, john wilkes kittera, samuel lyman, william matthews, harrison g. otis, isaac parker, john read, john rutledge, jr., james schureman, samuel sewall, william shepard, thos. sinnickson, samuel sitgreaves, nathaniel smith, peleg sprague, george thatcher, richard thomas, mark thompson, thomas tillinghast, john e. van allen, and peleg wadsworth. friday, july . _abrogation of treaty with france._ mr. sewall called up the bill from the senate, declaring the treaty between france and the united states void, and of no effect. mr. allen wished the resolution that he laid upon the table yesterday, respecting the condition and relation of this country with respect to france, first to be taken up. mr. sitgreaves thought it would be proper first to go into a consideration of this resolution. we are, said he, now in a state of war. the house know that, by the distribution of powers under this government, it is only competent for congress to declare the country in war; therefore, until that declaration is made by this department, the executive and judiciary cannot act in the same way as if the country was at war. in other countries, the executive department can create war; but here it cannot. if it shall be considered expedient to declare war in consequence of the repeated aggressions and injuries we have received from the french republic, and the hostility urged against us, and the necessity there exists of making defence against them, there can be no occasion for declaring the treaties void; because, if war is declared, it is the major proposition, and, of course, includes all the minor propositions. if discussed at all, therefore, it would be proper to discuss the major proposition first. he supposed it was a subject on which the minds of members were made up. whether, therefore, the vote is affirmative or negative, it would be best to declare, in the first instance, the state of the country. mr. nicholas hoped, if we are to come to this question of war at all, it might be so taken up as to occupy the least time of the legislature. the question of setting aside the treaties is evidently included in the other; he hoped, therefore, the proposition of the gentleman from connecticut, if to be taken up at all, would have a preference. mr. sewall said, if the question of annulling the treaties with france was included in the resolution of the gentleman from connecticut, he should think it ought first to be taken up; but he did not think this was the case. the gentleman from connecticut wishes a committee to state what is our relation with respect to the french republic. how could we say what our relation is, except we determine what is our relation with respect to the treaties subsisting between the two countries? he took the two things to be perfectly distinct. the gentleman from pennsylvania (mr. sitgreaves) seems to conceive that the question whether it will be proper to make a declaration of war against france, is included in this resolution, as he could not be so anxious for the declaration of an historical fact, which, in his opinion, the report on this resolution could only be; for gentlemen could not consider that the constitutional power, placed in congress to declare war, meant no more than a mere report, whether or not the country is in war. a number of acts have been done, which are indicative of war, and if a report was made as to our situation with the french republic, it must be reckoned at least a state of hostility. but this would be doing nothing. if it was the intention of any gentleman to propose a declaration of war, such a motion would supersede the necessity of taking up the bill from the senate; but, as the resolution of the gentleman from connecticut did by no means go to this, he hoped the bill he had mentioned would be first considered. if he were to give an opinion on the subject, it would be clearly against declaring war at present. as to the judicial courts, they would find no difficulty in acting according to the situation of things, without troubling themselves with the nice distinctions which gentlemen seemed inclined to make between a state of war, and a state of hostility. mr. gallatin wished to know, if the house were to go into a committee of the whole on the bill from the senate, whether a declaration of war might not be moved as an amendment to the bill. to his mind, there seemed to be but little difference between saying the treaties are at an end, and declaring war. if such a motion could be received, it would be desirable to know the will of the house upon it. the shortest way of coming at this question would be the best. he wished the speaker to say whether he thought such a motion would be in order. [no answer was given to the inquiry.] mr. allen considered it best to act always with frankness. he wished, by his resolution, that a committee should inquire into, and declare to the house, and to the country, the true state of our situation with respect to france; and if they should report any measures which should supersede the bill from the senate, it would be the most fair and open way of getting at the business. the question on taking up the bill from the senate was put, and negatived-- to . mr. allen then called up his resolution. it had been said that our negotiation with france is yet carrying on, which he denied, and he wished this resolution to go to a numerous committee to report as to that fact, and as to our situation generally with respect to france. mr. harrison hoped the house would go into a committee of the whole on the state of the union, in order to inquire into what is the state of the country? those gentlemen who wish war, and are determined to have it, ought to speak out. the world should understand them, and the people ought not to be deceived. he hoped gentlemen would bring forward their declaration of war at once. he had always been, and should now be, opposed to war, but he wanted to put his negative upon it. mr. harper had no objection to go into a committee of the whole on the state of the union, if the gentleman from virginia had any motion to make, when the house got into that situation. mr. hartley hoped the resolution before the house would be referred to a select committee, that the house might have a report upon it. he wondered that gentlemen who were against going to war, should wish to press the question of a declaration of it upon the house. mr. dana observed that, from what had been now said upon the resolution, he saw no necessity for voting upon it at all. mr. otis spoke in favor of referring the resolution to a select committee, and saw no reason why the house should go into a committee of the whole on the state of the union. mr. harrison said, every one would know he had no proposition to bring forward with respect to war; he wished to remain at peace; but he wished his constituents and the country at large to be informed as to what was to be the state of the country. seeing, however, that no member is ready to make the declaration which had been so often spoken of, he should withdraw his motion for going into a committee of the whole. mr. sitgreaves observed, with respect to the allusions of the gentleman last up, as to being prepared for a declaration of war, he confessed he felt no hesitation in saying, that he thought this declaration ought to be made in some form or other. he believed it was the duty of the legislature to make it. he had thought so for some time; but certain considerations with respect to our envoys, had prevented its being proposed. such, he said, was his individual opinion; but he owned he had some scruples about bringing it forward, unless he should be assured, from a comparison of the opinions of gentlemen, such a proposition would receive a respectable and firm support. if he supposed this would be the case, he would make the motion at this moment; and it was because the motion of the gentleman from connecticut looked towards a declaration, that he was in favor of it. mr. s. said he had heard it said for months past, by gentlemen of different opinions, that the aggressions of france against this country were lawful cause of war, and all have admitted that it has become a single question of expediency whether we shall declare war, or not. it was said no consideration but that of interest, would prevent its being done, and he did not believe there was any such. we have, said he, for a long time suffered all the mischiefs that can be inflicted upon us in a state of war, and, therefore, the single question is now, whether we will avail ourselves of the advantages which might be derived from declaring war; for, however trifling gentlemen may deem the distinction which he made between a state of hostility and war, he looked upon that distinction as real and material. in case of an invasion taking place before a declaration of war has been made, certain limited authorities are placed in the president, and in the executives of the several states, with respect to the armed force; but, if a declaration of war has previously taken place, the direction of that force is placed wholly in the hands of the president of the united states. if this declaration should be made, he should still deem it a war of defence on our part. mr. s. said he rose to declare his opinion on this point, and to say he was in favor of the motion of the gentleman from connecticut. mr. nicholas supposed there could have been no doubt as to the intentions of the gentleman from connecticut in bringing forward this resolution, though he expected it would have been found necessary to have made it more explicit. if the object was, as he had no doubt it was, to procure a proposition for a declaration of war, he hoped the resolution would be so amended as to embrace that object. at present, it was quite an unmeaning thing. mr. gallatin said, if he understood the resolution, it proposed the appointment of a committee, to declare what is the state of things between this country and france. he could not see with what propriety congress could declare a statement of facts by a legislative act. it would be a little curious to pass a law to declare mr. gerry has no authority to treat with the french government; or to declare that this room is sixty feet long, or any other fact. if the committee were to report what was necessary to be done, he could see the use of such a report. mr. lyon observed, that though this resolution was not so explicit as gentlemen might wish, yet such as it was, he was desirous it should pass. he wished to know the state of the country. some say we are at war; others that we are in a state of hostility; others at peace. he wished to see a report on the subject. he had considered the country as in war for some time; if he was mistaken, he was desirous his mistake should be rectified. if we are at war, it would be well to request the president to get us peace as soon as he can. the question on the resolution was put and negatived, without a division. on motion of mr. otis, the house went into a committee of the whole on the state of the union, to take into consideration the bill from the senate declaring our treaties with france void and of no effect. the committee being formed, and the bill having been read, mr. livingston called for the reading of the treaties. mr. gallatin thought it would be sufficient to have certain parts of the treaties, which he mentioned, read. mr. livingston consented; but mr. lyon persisted in the motion for reading the whole. on the question being taken, he only rose in favor of it. the parts of the treaties called for by mr. g. were read. mr. sewall said, some doubts might be entertained, perhaps, as to the propriety of this measure. it is certainly a novel doctrine to pass a law declaring a treaty void; but the necessity arose from the peculiar situation of this country. in most countries, it is in the power of the chief magistrate to suspend a treaty whenever he thinks proper; here congress only has that power. we have, said he, during this session, in a variety of cases, suspended the treaties in question, by authorizing measures of hostility against france, contrary to the stipulations contained therein. he believed it would be proper, therefore, to set aside these treaties by legal authority. but he confessed to do this, in the manner proposed by the senate, would, at least, be inconvenient. he could not conceive that the senate meant to go so far as this bill goes. we ought not to say the treaties are void and of no effect. they must have effect as historical facts; they must have effect, in our appeal to the world, on the ground of their having been violated, and in our claim upon france on account of those violations. there are also other articles which must have effect in case of war. he alluded to the articles which respect the situation of french citizens in this country, or american citizens in france, after war shall have been declared by either power. mr. s., therefore, proposed a new form of a bill, more simple and with a much shorter preface, viz: "that, whereas the treaties have been in numerous instances violated, they are no longer to be considered as law within the united states," &c. it also proposed that any claim or restraint, stipulated by the said treaties, shall be abrogated and annulled. the chairman said this motion was not in order, and could not be received. mr. nicholas saw no difference between the substitute proposed and the original bill. the gentleman from massachusetts wished to retain the provision relative to the residence of the citizens of either country, after the declaration of war shall have taken place; but could that gentleman for a moment suppose that he could annul one part of a treaty and preserve other parts? the idea appeared to him a very extraordinary one. mr. rutledge hoped the committee would rise, and that the bill would be referred to a select committee. he believed it would be better to declare a part of the treaties void than the whole, which he thought might with propriety be done. mr. nicholas had no objection to the committee's rising; but he could not believe we could take such parts of a treaty as we liked, and declare the rest void. mr. dana believed that the gentleman from virginia did not rightly apprehend what had been said by the gentleman from massachusetts. mr. d. admitted the impropriety of declaring void and of no effect a legal instrument which was originally valid. in his opinion, this impropriety might be avoided, and the object of the bill attained, by a different phraseology. he believed a proper mode of acting upon this business would be, to declare the stipulations of the french treaties no longer obligatory on the united states. this we may justly do, in consequence of their being disregarded by france. as to the effect of such a declaration, he acknowledged that it must be regarded as abrogating all those articles of the treaties which are executory, such as stipulate for the future conduct of the parties. agreeing thus far with the gentleman from virginia, he would consent most cheerfully that all such articles should be set aside, as they respect both countries. but the declaration would not have any effect on articles which are executed, such as contain cessions or renunciations of territorial claims, and where a corresponding possession has taken place. the operation of these articles is completed, and cannot be reversed by the declaration now proposed. mr. d. then moved to amend the enacting clause, by expunging all the words after "that," and substituting "the united states are, of right, freed and exonerated from the stipulations of the treaties heretofore concluded between the united states and france, and that the same shall not henceforth be regarded as legally obligatory on the government or citizens of the united states." mr. otis approved of this motion, and, after a few observations by him in favor of it, the question was put and carried upon it without a division. mr. o. then moved to strike out the whole of this preamble; which motion being carried, mr. dana proposed that the reasons for passing this bill should be condensed in the preamble, to read as follows: "whereas, the treaties concluded between the united states and france have been repeatedly violated on the part of the french government, and the just claims of the united states for reparation of the injuries so committed have been refused; and their attempts to negotiate an amicable adjustment of all complaints between the two nations have been repelled with indignity; and whereas, under the authority of the french government, there is yet pursued against the united states a system of predatory violence infracting the said treaties, and hostile to the rights of a free and independent nation, therefore," &c. the question on the preamble was put and carried-- to . the committee then rose, and the house took up the amendments. on the question being put on agreeing to the new preamble, mr. bayard said he thought it more in detail than was necessary. he thought it more like a state paper than the preamble of a law. he thought the preamble ought to go no further than to state sufficient ground for the act, which was about to be done; and he took it for granted that whenever a nation violates an essential article of a treaty, it is competent for the other party to declare the treaty no longer binding upon them. he, therefore, moved to strike out all the preamble after saying the treaties have been frequently violated. as to the french having committed depredations upon our commerce, and refused to negotiate with our commissioners, though these circumstances may be a just cause of war, he did not know whether they were sufficient ground upon which to declare a treaty void. mr. kittera was against striking out. he could not agree that there could be causes for a declaration of war, which are not also causes for setting aside a treaty. the reverse of this position appeared to him to be true, viz: that there might be causes for declaring a treaty void, which would not be causes of war. mr. craik was in favor of the preamble as it stood. mr. gordon hoped the amendment would not prevail. it ought to be considered that if this bill passed into a law, it would be considered as a novel thing. it will be tantamount to a state declaration to annul a treaty, and there ought to be the grounds annexed to it which had led to the measure; and though the gentleman from delaware is desirous of stating a sufficient cause, he did not think his motion went far enough. the practice of nations is, that when injuries are done, reparation is demanded; and it was necessary, in his opinion, to state that this demand had been made in vain, and that the injuries complained of are still continued. mr. s. smith hoped the amendment would be adopted. he disliked preambles very much. the reasons given by the gentleman from delaware in favor of his motion he thought well founded. it would be much better to give one good reason for declaring the treaties no longer binding, than several doubtful ones. in his opinion there were some of this description as the preamble stands at present. he did not know that a reparation for injuries had been refused by france. he had seen nothing like an absolute demand made upon the french government. the envoys were empowered to make the demand; but, from their not having been duly received, the demand was never made. if it were made, it is clear it has not been complied with; but we have no evidence of its having been refused to be complied with. on the contrary, we see that on the d of april, talleyrand had fixed a day on which he proposed to treat with mr. gerry on the subject of the disputes between the two countries. we have not heard the result of the conference; but it may have happened that mr. talleyrand has offered to make complete reparation for the injuries committed on our commerce, and this intelligence may arrive here a fortnight hence, and then a declaration of this sort would not have a good appearance. he thought, therefore, it would be better to strike these words out than to retain them. mr. s. presumed it was not yet _sedition_ for him to say that he believed proposals to treat would be made to our commissioners, independent of any tribute, and such as this country might with honor accept. he hoped, therefore, no difficulty would be placed in the way, by passing the preamble as it now stands. mr. dana was not generally in favor of fixing preambles to laws. whenever the subject is such that it is obviously competent for the legislature to act upon it; whenever the act proposed is, from its nature, completely within the usual legislative powers, and, without any explanation, appears perfectly consistent with national honor and propriety, a preamble is unnecessary. but ought this to be said of the subject under consideration? whence is it that the united states may abrogate the treaties with france? is it because the legislature may, at pleasure, set aside a treaty? if it is proper to do this, without any external cause, a preamble is needless in the present instance. according to his view of the subject, the act was founded on a different principle. france has violated the faith pledged by her treaties with america: this, by the law of nations, puts it within the option of the legislature to decide, as a question of expediency, whether the united states shall any longer continue to observe their stipulations. it is owing to the perfidy of the french government that the abrogation of our treaties with that nation has become justifiable and necessary. as an american, he hoped the united states would always regard the faith due to treaties, and that all their acts would, on the face of them, appear consistent with it. in this respect, he wished the conduct of the american government to exhibit a marked contrast to french perfidy. it is of importance to the fairness of our national character. therefore it is that the facts should be stated which have led to this measure. the gentleman from delaware, in support of the amendment which he has moved, supposes it sufficient to state one cause for setting aside the treaties. he is understood to admit that a sufficient cause should be stated. in this principle, said mr. d., we are agreed. but the question arises, whether a violation of the treaties on the part of france is, of itself, sufficient for setting them aside? the idea of mr. d. was, that it would not be sufficient, according to the liberal principles which should be cherished in the united states. a treaty might be violated by the imprudence of some person in authority, or by persons acting without authority; and yet the foreign government, on proper representations, might be willing to redress the injury. in such case, it would ill become the government of the injured party immediately to dissolve friendly connections. why is it now deemed requisite to abrogate the treaties by which this country has been connected with france? it is because france has not only violated them, but has also refused that attention which was due to our representations on the subject, and persists in the violation. on this account, and in order to show that the united states were completely justifiable in taking the measure, he was against the amendment of the gentleman from delaware, and in favor of retaining the several clauses of the preamble. a gentleman from maryland (mr. smith) has declared himself in favor of this amendment, because, in his view, there is no proof that our claim for the injuries committed on our rights, as a neutral nation, have been refused to be adjusted by france. the reason assigned for this opinion is so extraordinary that it may astonish every man acquainted with subjects of this nature. it is, that the french would not receive the envoys charged with this business, or permit their speaking to them, although they waited for months at the palace-gate of directorial arrogance supplicating in vain for an audience. were the gentleman from maryland to go himself, or send one of his clerks, to present a demand for a sum justly due to him, if his debtor, instead of discharging or attending to the account, would not consent even to hear him on the subject, but should kick him from the door, or order a servant to do it, would not the gentleman consider such conduct as a refusal to satisfy the demand. he who knows that claims of justice merit the respect of governments, as well as of individuals, and ought never to be neglected without reasonable cause, must know that evasions, intentional procrastination, and affected delays, are equivalent to a refusal of satisfaction. this is the doctrine of reason, of common sense, of municipal law, and of the law of nations. the facts stated in the preamble, therefore, are strictly true; they are established by the very statement which the gentleman has made to disprove them. and since he has made a question on the subject, it is of additional importance for the legislature to declare its conviction of their truth. mr. craik believed with the gentleman from connecticut, last up, that from the declaration of his colleague this question was of consequence. he believed gentlemen were now called upon to testify to the truth of this statement, since it had been doubted. the people ought not to be left in doubt on this subject. mr. otis said, exactly the same effect which had been produced upon the mind of the gentleman last up, was also produced upon his. before he had heard the arguments of the gentleman from maryland in its favor, he intended to vote for the motion of the gentleman from delaware, as being more concise, and as he thought stating sufficient ground for the act about to be passed; but when that gentleman says we have no evidence of reparation for the injuries committed upon our commerce being refused to be made, the abhorrence he felt at the idea of being ranked among members of this opinion would lead him to vote against it. he believed the facts stated in the preamble unquestionably true, and he did not think there could have been a man in the united states who had a doubt on the subject. he believed there could be no doubt that when a sum of money is neglected to be paid, when due, though the debtor may refuse to see any person authorized to make the demand, that it is legally refused to be paid. if the documents on the table were examined, mr. o. said it would be found, that so far from mr. talleyrand having listened to the claims of our commissioners, he had expressed his surprise that they should have been made, alleging that the priority of claim was on the part of the french government. mr. o. made several other observations, when he concluded by saying, that if any offers of pacification were made by men of the description of those at present in power in the french directory, he should have no confidence in them: he should think them insidious, and that they originated in their fears, and were intended to effect our ruin. mr. harper said he would say only a few words in justification of his vote in favor of the present motion. he disliked preambles altogether. he voted against the one from the senate, and he should be in favor of reducing this; for, if we must have a preamble, he thought the less the better. it is the business of the legislature, mr. h. said, to pass laws; if a manifesto is proper to be published on this occasion, it would more probably fall under the executive department. it is his business to issue state papers, and he could do it much better than it could be done in this house. he was sorry it should be thought necessary to have any preface at all to the law, as it was departing from a good old rule laid down by congress. mr. s. smith was not convinced, by any thing that had been said against this motion, that what he had before stated was ill-founded. it had been asked whether, if he sent three persons to demand a debt, and the debtor ordered them away without seeing them, he should not consider the act as a refusal to pay. he answered, he should. but he would put a case, which he thought more in point. were he to send three persons to settle an account with a debtor, and he were to send two of them home again, but keep one, and promise to adjust the business with him, he should naturally expect he would do so, and should not think of proceeding to any rigorous measures with him, until he heard the result. the gentleman from massachusetts has said that he can never consent to accept of any terms from the present executive directory, as he shall consider them insidious, and not to be relied upon. after a two years' war, perhaps, he may be of a different opinion. mr. s. said he should be as unwilling as any man to accept of any terms from the french government which would be derogatory to the united states; but if the directory will engage that all the depredations upon our commerce shall cease, and will offer to treat with us on equitable terms, (which he did not think improbable,) he should be for acceding, most cheerfully, to the proposal. mr. gallatin said he should vote against the motion to strike out a part of the preamble agreed to in the committee of the whole. he was of opinion with gentlemen, that it was better to pass laws in general, without preambles; but this proceeding is altogether of a novel nature. he knew of no precedent of a legislature repealing a treaty. it is therefore an act of a peculiar kind, and it appeared to him necessary that congress should justify it by a declaration of their reasons. nor could he understand the argument of the gentleman from south carolina, when he said the executive department was better calculated for the publishing of a manifesto than the legislature, or, in other words, could assign the reasons that influenced congress better than congress themselves. if, then, a preamble is to be adopted, it ought to contain those reasons which operated in producing the law. he thought this would be more correctly stated by leaving the preamble as it is, than by adopting the amendment. there was also another reason for preserving the preamble as at present. the french have violated the treaty of commerce made with this country; but it would be rather difficult for any gentleman to show that repeated violations have taken place of our treaty of alliance with france. the ground of complaint is, that france has violated the treaty of commerce between the two countries, and the laws of nations, and not the treaty of alliance; and, therefore, a breach of that treaty is not the reason why it is set aside. besides, if repeated violations of a treaty are sufficient reasons for setting it aside, it could not be forgotten that certain orders had been issued by another country, which are not conformable to our treaty with that power. so, that it is not sufficient to say, that because a treaty has been violated, we will repeal it; but we ought to show to the world that repeated attempts have been made, in vain, to obtain redress. but the gentleman from maryland is apprehensive that the statement of the french government having refused to make reparation for the injuries committed upon our commerce could not be correct, from the possibility of mr. gerry having succeeded in making a treaty since the date of our last despatches. he acknowledged there was a bare possibility of the fact being so; but this ought to operate as a reason against passing the bill at all, and not against the preamble. mr. edmond said, he voted for rejecting the senate's preamble. it appeared to him that no preamble was necessary. for, if it were necessary to state the reasons which induced the passing of this act, it would be proper to state all the reasons, and to do that would be a work of considerable time; and, upon the facts stated, there might probably be a considerable difference of opinion. if reasons were stated for passing this law, and, at a future day, when an adjustment of differences should take place, the negotiator on the part of the united states were to adduce other reasons for passing this act than are stated in this preamble, it might be stated by the negotiator, on the part of france, why do you muster up complaints now, which you did not think of when the law passed? he therefore thought it would be best to pass the law without a preamble at all. no question in the laws of nations, mr. e. said, was more clear, than that, when a treaty is violated by one nation, the other party, who has maintained good faith, may either discharge themselves from the obligations of it, or, if kindly disposed, they may set on foot a negotiation, or they may declare war, without doing either of the other two. he laid it down as a further principle, that where there are several treaties in existence between two countries, and one of them is violated, the injured party may demand satisfaction; and if it be not given, they may declare the whole of the treaties void. he therefore was of opinion that france having violated our treaty with her, we have a right, without assigning any reason for it, to set it aside; and as we have repeatedly applied to them for redress, and they have refused to grant it, we have a right to reject the whole or to declare war, without assigning any reason whatever. however, if we wish to appear fair in the eyes of the world, we may, if we please, assign a reason for our act; but, in this case, he would either give all the reasons which exist, or make them as precise as possible. he should, therefore, vote in favor of striking out the words in question. the question to strike out was negatived; and the question being taken on the preamble, it was carried--there being votes for it. the bill was ordered for a third reading this day. it afterwards received its third reading, and was passed--yeas , nays , as follows: yeas.--john allen, george baer, jr., bailey bartlett, jas a. bayard, david brooks, stephen bullock, christopher g. champlin, john chapman, james cochran, joshua coit, william craik, samuel w. dana, george dent, william edmond, abiel foster, dwight foster, jonathan freeman, henry glenn, chauncey goodrich, william gordon, roger griswold, william barry grove, robert goodloe harper, thomas hartley, william hindman, hezekiah l. hosmer, jas. h. imlay, john wilkes kittera, samuel lyman, william matthews, harrison g. otis, isaac parker, john read, john rutledge, jr., james schureman, samuel sewall, william shepard, thos. sinnickson, samuel sitgreaves, nathaniel smith, peleg sprague, george thatcher, richard thomas, mark thompson, thomas tillinghast, john e. van allen, and peleg wadsworth. nays.--abraham baldwin, david bard, thos. blount, dempsey burges, thomas claiborne, william charles cole claiborne, john clopton, john dawson, thomas evans, john fowler, albert gallatin, james gillespie, andrew gregg, john a. hanna, carter b. harrison, jonathan n. havens, joseph heister, david holmes, walter jones, edward livingston, matthew locke, matthew lyon, nathaniel macon, blair mcclenachan, joseph mcdowell, anthony new, john nicholas, samuel smith, william smith, richard sprigg, jr., richard stanford, thomas sumter, john trigg, philip van cortlandt, joseph b. varnum, abraham venable, and robert williams. tuesday, july . _punishment of crimes._ the bill, in addition to the act for punishing crimes against the united states, and for other purposes, was read the third time; when mr. sitgreaves wished the bill to be recommitted. it had been suggested to him that great inconvenience arises in the federal courts, from its having been conceived that they have not the power to bind to good behavior, and he was desirous of removing this defect, by adding a section to this bill for the purpose. mr. bayard thought the gentleman from pennsylvania had better bring this subject forward by itself, than have this bill recommitted, as it was no way connected with it. mr. sitgreaves consented. the question was now on the passing of the bill. mr. mcdowell called for the yeas and nays upon it. mr. nicholas rose, he said, to ask an explanation of the principles upon which this bill is founded. he confessed it was strongly impressed upon his mind, that it was not within the powers of the house to act upon this subject. he looked in vain amongst the enumerated powers given to congress in the constitution, for an authority to pass a law like the present; but he found what he considered as an express prohibition against passing it. he found that, in order to quiet the alarms of the people of the united states with respect to the silence of the constitution as to the liberty of the press, not being perfectly satisfied that the powers not vested in congress remained with the people, that one of the first acts of this government was to propose certain amendments to the constitution, to put this matter beyond doubt, which amendments are now become a part of the constitution. it is now expressly declared by that instrument, "that the powers not delegated to the united states by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people;" and, also, "that congress shall make no law abridging the freedom of speech, or of the press." mr. n. asked whether this bill did not go to the abridgment of the freedom of speech and of the press? if it did not, he would be glad if gentlemen would define wherein the freedom of speech and of the press consists. mr. n. wished gentlemen, before they give a final vote on this bill, to consider its effects; and, if they do this, he thought they would consent to stop here. he desired them to reflect on the nature of our government; that all its officers are elective, and that the people have no other means of examining their conduct but by means of the press, and an unrestrained investigation through them of the conduct of the government. indeed, the heart and life of a free government, is a free press; take away this, and you take away its main support. you might as well say to the people, we, your representatives, are faithful servants, you need not look into our conduct; we will keep our seats for a little longer time than that for which you have given them to us. to restrict the press, would be to destroy the elective principle, by taking away the information necessary to election, and there would be no difference between it and a total denial of the right of election, but in the degree of usurpation. mr. otis said, the professions of attachment to the constitution, made by the gentleman from virginia, are certainly honorable to him; and he could not believe that an attachment so deeply engrafted, as he states his to be, would be shaken by this bill. the gentleman had caught an alarm on the first suggestion of a sedition bill, which had not yet subsided; and though the present bill is perfectly harmless, and contains no provision which is not practised upon under the laws of the several states in which gentlemen had been educated, and from which they had drawn most of their ideas of jurisprudence, yet the gentleman continues to be dissatisfied with it. the objections of the gentleman from virginia, he believed, might be reduced to two inquiries. in the first place, had the constitution given congress cognizance over the offences described in this bill prior to the adoption of the amendments to the constitution? and, if congress had that cognizance before that time, have those amendments taken it away? with respect to the first question, it must be allowed that every independent government has a right to preserve and defend itself against injuries and outrages which endanger its existence; for, unless it has this power, it is unworthy the name of a free government, and must either fall or be subordinate to some other protection. now some of the offences delineated in this bill are of this description. unlawful combinations to oppose the measures of government, to intimidate its officers, and to excite insurrections, are acts which tend directly to the destruction of the constitution, and there could be no doubt that the guardians of that constitution are bound to provide against them. and if gentlemen would agree that these were acts of a criminal nature, it follows that all means calculated to produce these effects, whether by speaking, writing, or printing, were also criminal. from the nature of things, therefore, the national government is invested with a power to protect itself against outrages of this kind, or it must be indebted to and dependent on an individual state for its protection, which is absurd. this essential right resulting from the spirit of the constitution, was still more evident in the language of that instrument. the people of the individual states brought with them as a birthright into this country the common law of england, upon which all of them have founded their statute law. if it were not for this common law, many crimes which are committed in the united states would go unpunished. no state has enacted statutes for the punishment of all crimes which may be committed; yet in every state he presumed there was a superior court which claimed cognizance of all offences against good morals, and which restrained misdemeanors and opposition to the constituted authorities, under the sanction merely of the common law. when the people of the united states convened for the purpose of framing a federal compact, they were all habituated to this common law, to its usages, its maxims, and its definitions. it had been more or less explicitly recognized in the constitution of every state, and in that of maryland it was declared to be the law of the land. if, then, we find in an instrument digested by men who were all familiarized to the common law, not only that the distribution of power, and the great objects to be provided for are congenial to that law, but that the terms and definitions by which those powers are described, have an evident allusion to it, and must otherwise be quite inexplicable, or at best of a very uncertain meaning, it will be natural to conclude that, in forming the constitution, they kept in view the model of the common law, and that a safe recourse may be had to it in all cases that would otherwise be doubtful. thus we shall find that one great end of this compact, as appears in the preamble, is the establishment of justice, and for this purpose a judicial department is erected, whose powers are declared "to extend to all cases in law and equity, arising under the constitution, the laws of the united states," &c. justice, if the common law ideas of it are rejected, is susceptible of various constructions, but agreeably to the principles of that law, it affords redress for every injury, and provides a punishment for every crime that threatens to disturb the lawful operations of government. again, what is intended by "cases at law and equity arising under the constitution," as distinguished from cases "arising under the laws of the united states?" what other law can be contemplated but common law; what sort of equity but that legal discretion which has been exercised in england from time immemorial, and is to be learnt from the books and reports of that country? if it be answered that these words comprise civil controversies only, though no reason appears for this distinction, yet what is to be done with other terms, with trial, jury, impeachment, &c., for an explanation of all which, the common law alone can furnish a standard? it has been said by the gentleman that the constitution has specified the only crimes that are cognizable under it; but other crimes had been made penal at an early period of the government, by express statute, to which no exception had been taken. for example, stealing public records, perjury, obstructing the officers of justice, bribery in a judge, and even a contract to give a bribe, (which last was a restraint upon the liberty of writing and speaking,) were all punishable, and why? not because they are described in the constitution, but because they are crimes against the united states--because laws against them are necessary to carry other laws into effect; because they tend to subvert the constitution. the same reasons applied to the offences mentioned in the bill. mr. macon said, the same section of the constitution which forbids any interference with the freedom of speech and of the press, extends also to religious establishments, and says, "congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." this bill ought to be considered, therefore, as the commencement of a system which might as well be extended to the establishment of a national religion, as to a "restraint of speech, and of the press." he acknowledged the bill was less exceptionable than when it came from the senate; but it yet contained the principle which he considered as violating the constitution. mr. m. said, he had attended to all that had been said in support of this bill; but could find nothing like argument in it. when the words of the constitution were so express, it seems impossible they could be understood as the gentleman from massachusetts had represented them. several authorities, mr. m. said, had been read to show that this bill will form a constitutional law. he believed, however, far more might be adduced to show the reverse. he believed the best way of coming at the truth of the construction of any part of the constitution, was, by examining the opinions that were held respecting it when it was under discussion in the different states. mr. m. then proceeded to quote the opinions of the leading members in several of the state conventions, in order to show, from the opinions of the friends of the constitution, that it was never understood that prosecutions for libels could take place under the general government; but that they must be carried on in the state courts, as the constitution gave no power to congress to pass laws on this subject. not a single member in any of the conventions gave an opinion to the contrary. the following are the words of judge iredell, of north carolina, on the occasion. judge wilson, of this state, and several others, were equally strong; but we have them not at hand, and if we had, to give extracts from the whole would occupy too much room. in the convention of north carolina, in reply to a member who had said that the general government might make it treason to write against the most arbitrary proceedings, but who, it appears, afterwards corrected himself, and said he meant only misprision of treason, and only that it might be done within the ten miles square, where they were to have exclusive legislation, judge iredell, thus spoke: "where is the power given them to do this? they (congress) have power to define and punish piracies and felonies committed on the high seas, and offences against the law of nations; but they have no power to define _any other crime whatever_. this shows how apt gentlemen are to commit mistakes. the powers of the government are particularly enumerated and defined. they can claim no others but such as are so enumerated. in my opinion, they are excluded as much from the exercise of any other authority, as they could be by the strongest negative clause that could be framed." gentlemen, mr. m. said, might call this a harmless bill; but however harmless it may be, it is a beginning to act upon forbidden ground, and no one can say to what extent it may hereafter be carried. he thought this subject of the liberty of the press was sacred, and ought to be left where the constitution had left it. the states have complete power on the subject, and when congress legislates, it ought to have confidence in the states, as the states ought also to have confidence in congress, or our government is gone. this government depends upon the state legislatures for existence. they have only to refuse to elect senators to congress, and all is gone. he believed there was nowhere any complaint of a want of proper laws under the state governments; and though there may not be remedies found for every grievance in the general government, what it wants of power will be found in the state governments, and there can be no doubt but that power will be duly exercised when necessity calls for it. mr. livingston said, that notwithstanding the sarcasms which had been thrown out against those who oppose this measure; notwithstanding that kind of accommodating principle which has been set up and reiterated, that the powers of this constitution extend to every possible case--a principle which goes to the destruction of state authorities, and makes that instrument mean any thing or nothing--notwithstanding this, he should again venture to engage the attention of the house while he endeavored to show that this bill is not only contrary to the spirit, but to the direct letter of the constitution. the constitution declares that "no law shall be passed to abridge the liberty of speech or of the press." let us inquire, said mr. l., what was the liberty enjoyed at the time this declaration was agreed to, and see whether citizens will enjoy the same liberty after this law passes that they then enjoyed. will gentlemen say that the same liberty of writing and speaking did not exist then that now exists? if they will not say this, must they not allow that the constitution is positive in prohibiting any change in this respect? gentlemen may call this liberty an evil, if they please; if it be an evil, (which he was far from believing,) it is an evil perpetrated by the constitution. the constitution seems to have contemplated cases which might arise at a future day. it seems to have foreseen that majorities (far be it from him to believe the present majority is of the number) might be actuated by dispositions hostile to the government; that it might wish to pass laws to suppress the only means by which its corrupt views might be made known to the people, and therefore says, _no_ law shall be passed to abridge the liberty of speech and of the press. this privilege is connected with another dear and valuable privilege--the liberty of conscience. what is liberty of conscience? gentlemen may to-morrow establish a national religion agreeably to the opinion of a majority of this house, on the ground of a uniformity of worship being more consistent with public happiness than a diversity of worship. the doing of this is not less forbidden than the act which the house are about to do. but, it is said, will you suffer a printer to abuse his fellow-citizens with impunity, ascribing his conduct to the very worst of motives? is no punishment to be inflicted on such a person? yes. there is a remedy for offences of this kind in the laws of every state in the union. every man's character is protected by law, and every man who shall publish a libel on any part of the government, is liable to punishment. not, said mr. l., by laws which we ourselves have made, but by laws passed by the several states. and is not this most proper? suppose a libel were written against the president, where is it most probable that such an offence would receive an impartial trial? in a court, the judges of which are appointed by the president, by a jury selected by an officer holding his office at the will of the president? or in a court independent of any influence whatever? the states are as much interested in the preservation of the general government as we are. we do wrong when we attempt to set up interests independent of the states. they are all desirous of preserving the constitution as it now stands; and it is, therefore, much more probable that justice will be found in a court in which neither of the parties have influence, than in one which is wholly in the power of the president. the bill was then passed--yeas , nays , as follows: yeas.--john allen, george baer, jr., bailey bartlett, james a. bayard, david brooks, christopher g. champlin, john chapman, james cochran, joshua coit, samuel w. dana, william edmond, thomas evans, abiel foster, dwight foster, jonathan freeman, henry glenn, chauncey goodrich, william gordon, roger griswold, william barry grove, robert goodloe harper, thomas hartley, william hindman, hezekiah l. hosmer, james h. imlay, john wilkes kittera, samuel lyman, harrison g. otis, isaac parker, john read, john rutledge, jun., james schureman, samuel sewall, william shepard, thomas sinnickson, samuel sitgreaves, nathaniel smith, peleg sprague, george thatcher, richard thomas, mark thompson, thomas tillinghast, john e. van allen, and peleg wadsworth. nays.--abraham baldwin, david bard, lemuel benton, thomas blount, richard brent, stephen bullock, dempsey burges, thomas claiborne, william charles cole claiborne, john clopton, john dawson, george dent, john fowler, albert gallatin, james gillespie, andrew gregg, john a. hanna, carter b. harrison, jonathan n. havens, joseph heister, david holmes, walter jones, edward livingston, matthew locke, matthew lyon, nathaniel macon, william matthews, blair mcclenachan, joseph mcdowell, anthony new, john nicholas, samuel smith, william smith, richard sprigg, jun., richard stanford, thomas sumter, john trigg, philip van cortlandt, joseph b. varnum, abraham venable, and robert williams. friday, july . _capture of french armed vessels._ the house went into a committee of the whole on the bill for encouraging the capture of french armed vessels by armed vessels belonging to citizens of the united states; which was agreed to without debate or amendment, and ordered to be read a third time to-day. it was accordingly immediately read a third time; when mr. mcdowell said, he hoped this bill would not pass. congress had already passed laws authorizing public and private armed vessels to attack and take french vessels; but they are now called upon to give a bounty upon the guns that are brought in, according to their size. he was not willing to allow this. it would open a door to innumerable frauds. plans would be laid between the owners of privateers here and their friends in the west indies, and vessels and arms would be thrown in their way for the purpose of capture, and in this manner our treasury would be drained to an extent which no man could at present foresee. he could see no use in the provision, as it would not induce merchant vessels to go in search of french vessels; and, without some unfair play, it would never be worth the while of persons fitting out privateers for the purpose. he called the yeas and nays upon it. they were taken accordingly, and were, yeas , nays , as follows: yeas.--john allen, bailey bartlett, james a. bayard, david brooks, christopher g. champlin, joshua coit, william craik, samuel w. dana, william edmond, abiel foster, dwight foster, henry glenn, chauncey goodrich, william gordon, roger griswold, robert goodloe harper, thomas hartley, william hindman, hezekiah l. hosmer, james h. imlay, john wilkes kittera, samuel lyman, harrison g. otis, isaac parker, john read, john rutledge, jun., james schureman, samuel sewall, thomas sinnickson, samuel sitgreaves, nathaniel smith, george thatcher, mark thompson, and john e. van allen. nays.--david bard, thomas blount, richard brent, dempsey burges, thomas claiborne, william charles cole claiborne, john clopton, john dawson, george dent, albert gallatin, james gillespie, william barry grove, carter b. harrison, jonathan n. havens, joseph heister, david holmes, walter jones, edward livingston, matthew locke, matthew lyon, nathaniel macon, blair mcclenachan, joseph mcdowell, anthony new, john nicholas, samuel smith, william smith, richard sprigg, jr., richard stanford, thomas sumter, thomas tillinghast, john trigg, philip van cortlandt, joseph b. varnum, abraham venable, and robert williams. and so the said bill was rejected. saturday, july . the hour having arrived, at which the call of the house was to be made, the names of the members were called over, eighty-two members (including the speaker) appeared in their seats, twenty-three absent, twenty of whom have leave, one sick, and two for whom excuses were made, and received by the house. _capture of french vessels._ mr. sitgreaves, called up for decision the resolution he laid on the table yesterday, viz: _resolved_, that a committee be appointed to prepare and bring in a bill for giving a bounty on the capture of french armed ships or vessels, by armed ships or vessels owned by a citizen or citizens of the united states. the question on the resolution, was then put and negatived--yeas , nays . and so the motion was rejected. monday, july . _intercourse with france._ another bill was received from the senate, to amend the act for suspending the commercial intercourse between the united states and france and her dependencies. mr. nicholas moved to postpone this bill till next session. mr. harper hoped not. this bill, he said, was very different from the one which had been negatived. that proposed to dispense with sureties altogether; this only to lower the amount of the bond. instead of the owner giving security in a sum equal to the amount of vessel and cargo, and finding two sureties in half the sum, this bill proposes that the owner and master shall be bound in a sum equal to the amount of the value of the vessel, and a surety in from one to ten thousand dollars. to exact a bond equal to the amount of the vessel and cargo in every case, would be very inconvenient. they are sometimes very valuable. there is now, he said, a vessel in this port ready to sail, whose cargo is worth $ , . to exact from the owner a bond to the full amount, and two sureties in half the sum, would be requiring a very heavy security from them. it would be sufficient, he thought, to require a bond equal to the profit which it is probable would be derived from any voyage. mr. s. smith said, this bill was certainly very different from that which had been rejected by this house, though it did not meet with his approbation at present. it was capable, however, of amendment. the security at present proposed was not worthy of the name. had he a ship ready to sail such as the gentleman last up had named, he would willingly forfeit the sum proposed, to have the privilege of sending her to a french market. the difference in price between a french and a hamburg market would make it well worth his while to do so. in many cases, such a voyage would afford per cent. a regulation something like the present could only secure the fair trader; but the surety must be a much larger sum than $ , . the committee rose, however, and mr. smith renewed his amendment in the house, when it was agreed to, after some objections to it from mr. bayard-- to . the bill was then ordered to be read a third time, received its third reading, and passed. the house having received all the bills from the president, and the business of the two houses being finished, the speaker adjourned the house till the first monday in december next. fifth congress.--third session. begun at the city of philadelphia, december , . proceedings in the senate. monday, december , . the third session of the fifth congress commenced this day, conformably to the provision of the constitution, and the senate assembled at the city of philadelphia, in their chamber. present: john langdon and samuel livermore, from new hampshire. theodore foster and ray greene, from rhode island. william bingham, from pennsylvania. humphrey marshall, from kentucky. jacob read, from south carolina. james gunn, from georgia. daniel smith, appointed a senator by the executive of the state of tennessee, in the recess of that legislature, in place of andrew jackson, resigned, took his seat in the senate. the members present not being sufficient to form a quorum, the senate adjourned to o'clock to-morrow morning. tuesday, december . henry latimer, from the state of delaware, attended. the members present not being sufficient to form a quorum, adjourned. wednesday, december . benjamin goodhue, from the state of massachusetts; elijah paine, and nathaniel chipman, from the state of vermont; john laurance, from the state of new york; and timothy bloodworth, from the state of north carolina, severally attended. no quorum being present, the senate adjourned. thursday, december . richard stockton, from the state of new jersey, and joseph anderson, from the state of tennessee, severally attended. the vice president being absent, the senate proceeded to the election of a president _pro tempore_, as the constitution provides, and john laurance was chosen. the credentials of daniel smith, appointed senator by the executive of the state of tennessee, in place of andrew jackson, resigned, were read, and the oath was, by the president, administered to him, as the law provides. _ordered_, that the secretary wait on the president of the united states, and acquaint him that a quorum of the senate is assembled, and that, in the absence of the vice president, they have elected john laurance, president of the senate _pro tempore_. _ordered_, that the secretary acquaint the house of representatives, that a quorum of the senate is assembled, and ready to proceed to business, and that, in the absence of the vice president, they have elected john laurance, president of the senate _pro tempore_. a message from the house of representatives informed the senate that a quorum of the house is assembled, and that they have appointed a joint committee on their part, together with such committee as the senate may appoint on theirs, to wait on the president of the united states and notify him that a quorum of the two houses is assembled, and ready to receive any communications that he may be pleased to make to them. the senate took into consideration the message from the house of representatives, and _resolved_, that they do concur therein, and that messrs. read and paine be of the joint committee on the part of the senate. the return of service on the summons to william blount, made by the sergeant-at-arms, pursuant, to the resolution of the senate of the first of march last, was read. mr. read reported, from the joint committee appointed for that purpose, that they had waited on the president of the united states, and had notified him that a quorum of the two houses of congress were assembled, and the president of the united states acquainted the committee that he would meet the two houses on saturday next at o'clock, in the chamber of the house of representatives. saturday, december . james ross, from the state of pennsylvania, attended. a message from the house of representatives informed the senate that they are now ready to meet the senate, in the chamber of that house, to receive such communications as the president of the united states shall be pleased to make to them. whereupon, the senate repaired to the chamber of the house of representatives, for the purpose above expressed. the senate then returned to their own chamber, and a copy of the speech of the president of the united states, this day addressed to both houses of congress, was read. [for which see proceedings in the house of representatives.] _ordered_, that messrs. stockton, read, and ross, be a committee to report the draft of an address to the president of the united states, in answer to his speech this day to both houses of congress, and that the speech be printed for the use of the senate. monday, december . uriah tracy, from the state of connecticut, attended. tuesday, december . james watson, appointed a senator by the legislature of the state of new york, in place of john s. hobart, resigned, produced his credentials, which were read, and the oath was, by the president, administered to him, as the law provides. the senate resumed the consideration of the report of the committee on the draft of an address in answer to the speech of the president of the united states to both houses of congress, at the opening of the session; which, being read in paragraphs and amended, was adopted, as follows: _to the president of the united states:_ sir: the senate of the united states join you in thanks to almighty god for the removal of the late afflicting dispensations of his providence, and for the patriotic spirit and general prosperity of our country. sympathy for the sufferings of our fellow-citizens from disease, and the important interests of the union, demand of the national legislature a ready co-operation with the state governments, in the use of such means as seem best calculated to prevent the return of this fatal calamity. although we have sincerely wished that an adjustment of our differences with the republic of france might be effected on safe and honorable terms, yet the information you have given us of the ultimate failure of the negotiations has not surprised us. in the general conduct of that republic, we have seen a design of universal influence, incompatible with the self-government, and destructive of the independence of other states. in its conduct towards these united states, we have seen a plan of hostility pursued with unremitted constancy--equally disregarding the obligations of treaties, and the rights of individuals. we have seen two embassies formed for the purpose of mutual explanations, and clothed with the most extensive and liberal powers, dismissed without recognition and even without a hearing. the government of france has not only refused to repeal, but has recently enjoined the observance of its former edict, respecting merchandise of british fabric or produce, the property of neutrals, by which the interruption of our lawful commerce, and the spoliation of the property of our citizens, have again received a public sanction. these facts indicate no change of system or disposition--they speak a more intelligible language than professions of solicitude to avoid a rupture, however ardently made. but if, after the repeated proofs we have given of a sincere desire for peace, these professions should be accompanied by insinuations, implicating the integrity with which it has been pursued--if, neglecting and passing by the constitutional and authorized agents of the government, they are made through the medium of individuals without public character or authority; and, above all, if they carry with them a claim to prescribe the political qualifications of the minister of the united states to be employed in the negotiation, they are not entitled to attention or consideration, but ought to be regarded as designed to separate the people from their government, and to bring about by intrigue that which open force could not effect. we are of opinion with you, sir, that there has nothing yet been discovered in the conduct of france which can justify a relaxation of the means of defence adopted during the last session of congress, the happy result of which is so strongly and generally marked. if the force by sea and land which the existing laws authorize should be judged inadequate to the public defence, we will perform the indispensable duty of bringing forward such other acts as will effectually call forth the resources and force of our country. a steady adherence to this wise and manly policy--a proper direction of the noble spirit of patriotism which has arisen in our country, and which ought to be cherished and invigorated by every branch of the government, will secure our liberty and independence against all open and secret attacks. we enter on the business of the present session with an anxious solicitude for the public good, and shall bestow that consideration on the several objects pointed out in your communication, which they respectively merit. your long and important services--your talents and firmness, so often displayed in the most trying times and most critical situations--afford a sure pledge of a zealous co-operation in every measure necessary to secure us justice and respect. john laurance, _president of the senate pro tempore_. _ordered_, that the committee who prepared the address, wait on the president of the united states, and desire him to acquaint the senate at what time and place it will be most convenient for him that it should be presented. mr. stockton reported, from the committee, that they had waited on the president of the united states, and that he would receive the address of the senate to-morrow, at o'clock, at his own house. whereupon, _resolved_, that the senate will, to-morrow at o'clock, wait on the president of the united states accordingly. wednesday, december . agreeably to the resolution of yesterday, the senate waited on the president of the united states, and the president of the senate, in their name, presented the address then agreed on. to which the president of the united states made the following reply: _to the senate of the united states:_ gentlemen: i thank you for this address, so conformable to the spirit of our constitution, and the established character of the senate of the united states, for wisdom, honor, and virtue. i have seen no real evidence of any change of system or disposition in the french republic towards the united states. although the officious interference of individuals, without public character or authority, is not entitled to any credit, yet it deserves to be considered, whether that temerity and impertinence of individuals affecting to interfere in public affairs, between france and the united states, whether by their secret correspondence or otherwise, and intended to impose upon the people, and separate them from their government, ought not to be inquired into and corrected. i thank you, gentlemen, for your assurances that you will bestow that consideration on the several objects pointed out in my communication, which they respectively merit. if i have participated in that understanding, sincerity, and constancy, which have been displayed by my fellow-citizens and countrymen, in the most trying times, and critical situations, and fulfilled my duties to them, i am happy. the testimony of the senate of the united states, in my favor, is a high and honorable reward, which receives, as it merits, my grateful acknowledgments. my zealous co-operation in measures necessary to secure us justice and consideration may be always depended on. john adams. _december , ._ the senate returned to their own chamber, and proceeded to the consideration of executive business. friday, december . john e. howard, from the state of maryland, attended. monday, december . alexander martin, from the state of north carolina, and james hillhouse, from the state of connecticut, severally attended. wednesday, december . franklin davenport, appointed a senator by the executive of the state of new jersey, in the recess of the legislature, in the place of john rutherford, resigned, produced his credentials; which were read, and, the oath of office being administered to him as the law provides, he took his seat in the senate. wednesday, december . james lloyd, from the state of maryland, attended. thursday, december . thomas jefferson, vice president of the united states and president of the senate, attended. monday, december . the vice president laid before the senate a letter from john hunter, notifying his resignation of his seat in the senate. monday, january , . john brown, from the state of kentucky, and theodore sedgwick, from the state of massachusetts, severally attended. tuesday, january . stephens t. mason, from the state of virginia, attended. monday, january . henry tazewell, from the state of virginia, attended. thursday, january . the senate being informed that henry tazewell, one of the members from the state of virginia, died this morning, _resolved_, that a committee be appointed to take order for superintending the funeral of the said henry tazewell, esq., and that the senate will attend the same, and that notice of the event be given to the house of representatives, and that this committee consist of messrs. mason, brown, and marshall. _resolved, unanimously_, that the members of the senate, from a sincere desire of showing every mark of respect due to the memory of henry tazewell, deceased, late a member thereof, will go into mourning for him one month, by the usual mode of wearing a crape round the left arm. _resolved_, that the president of the senate notify the executive of virginia of the death of henry tazewell, late senator of that state for the united states. friday, january . the vice president communicated the credentials of william hill wells, elected a senator for the state of delaware, in the place of joshua clayton, deceased. wednesday, january . josiah tattnall, from the state of georgia, attended. monday, february . william hill wells, appointed a senator by the legislature of the state of delaware, in place of joshua clayton, deceased, attended; and his credentials being read, and the oath required by law administered to him, he took his seat in the senate. wednesday, february . the bill sent from the house of representatives, entitled "an act further to suspend the commercial intercourse between the united states and france, and the dependencies thereof, and for other purposes," was read a third time. on motion to add the following proviso to the fourth section: "_provided_, that a notice of not less than nineteen days of the opening commerce with the french republic, or any port or place under the government thereof, by authority of this act, and of not less than thirty days of the revocation of any order issued by the president, by virtue of this act, shall be given:" it was determined in the negative--yeas , nays , as follows: yeas.--messrs. anderson, bloodworth, brown, chipman, gunn, langdon, livermore, lloyd, marshall, martin, mason, read, and tattnall. nays.--messrs. bingham, davenport, foster, goodhue, greene, hillhouse, latimer, paine, ross, sedgwick, stockton, tracy, watson, and wells. on motion to amend the motion, to be read as follows: "_provided_, that notice shall be given, of not less than thirty days, of the revocation of any order issued by the president, by virtue of this act:" it was determined in the affirmative--yeas , nays , as follows: yeas.--messrs. bingham, chipman, davenport, foster, goodhue, greene, hillhouse, howard, latimer, livermore, lloyd, marshall, paine, sedgwick, stockton, tracy, watson, and wells. nays.--messrs. anderson, bloodworth, brown, langdon, martin, mason, read, ross, and tattnall. and on the question to agree to the motion thus amended, it was determined in the negative. and having agreed to several amendments to the bill, the question on the final passage thereof, as amended, it was determined in the affirmative--yeas , nays , as follows: yeas.--messrs. bingham, chipman, davenport, foster, goodhue, greene, hillhouse, howard, latimer, livermore, lloyd, paine, ross, sedgwick, tracy, watson, and wells. nays.--messrs. anderson, bloodworth, brown, gunn, langdon, marshall, martin, mason, read, and tattnall. saturday, february . the senate resumed the second reading of the bill to amend the act, entitled "an act providing for the sale of the lands of the united states in the territory north-west of the river ohio, and above the mouth of kentucky river." on motion to strike out the th section of the bill as follows: "sec. . _and be it further enacted_, that aliens residing within the united states or elsewhere, shall be capable of purchasing and holding lands in the territory of the united states north-west of the river ohio, and their heirs may succeed to them _ab intestato_, in the same manner as if they were citizens; and they may grant, sell, and devise the same to whom they may please, whether citizens or aliens; and that neither they, their heirs, or assigns, shall, so far as may respect the said lands, and the legal remedies incident thereto, be regarded as aliens." it was determined in the affirmative--yeas , nays , as follows: yeas.--messrs. chipman, foster, goodhue, greene, hillhouse, howard, martin, read, sedgwick, stockton, tracy, watson, and wells. nays.--messrs. anderson, bingham, bloodworth, brown, gunn, langdon, livermore, marshall, mason, ross, and tattnall. tuesday, february . the bill vesting the power of retaliation, in certain cases, in the president of the united states, was read the third time; and, being amended, the question on the final passage thereof was determined in the affirmative--yeas , nays , as follows: yeas.--messrs. anderson, bloodworth, chipman, davenport, foster, goodhue, greene, gunn, hillhouse, latimer, livermore, lloyd, marshall, martin, paine, ross, sedgwick, stockton, tattnall, tracy, watson, and wells. nays.--messrs. howard and langdon. so it was _resolved_, that this bill pass, that it be engrossed, and that the title thereof be "an act vesting the power of retaliation, in certain cases, in the president of the united states." wednesday, february . the vice president communicated a letter from the executive of the state of virginia, in answer to his of the th ultimo, stating that an appointment to fill the vacancy in the senate, occasioned by the decease of henry tazewell, would, probably, be deferred to the meeting of their legislature. saturday, february . charles pinckney, elected a senator by the legislature of the state of south carolina, in place of john hunter, resigned, produced his credentials, and the oath prescribed by law being administered to him, he took his seat in the senate. the senate proceeded to consider the amendments reported by the committee to the bill giving eventual authority to the president of the united states to augment the army. on motion, to agree to the amendment reported to the th section, to read as follows: "sec. . _be it further enacted_, that it shall be lawful for the president of the united states to call forth and employ the said volunteers in all cases, and to effect all the purposes for which he is authorized to call forth and employ the militia, by the act, entitled 'an act to provide for the calling forth the militia to execute the laws of the union, suppress insurrections, and repel invasions, and to repeal the act now in force for these purposes:'" it passed in the affirmative, as follows: yeas.--messrs. bingham, chipman, foster, goodhue, greene, gunn, howard, laurance, livermore, lloyd, marshall, paine, ross, sedgwick, tracy, watson, and wells. nays.--messrs. anderson, bloodworth, langdon, martin, mason, pinckney, and tattnall. saturday, february . the bill, sent from the house of representatives, entitled "an act to grant an additional compensation from the year one thousand seven hundred and ninety-nine, to certain officers of the senate and house of representatives of the united states," was read the second time. _ordered_, that it be referred to messrs. livermore, paine, and wells, to consider and report thereon to the senate. the senate proceeded to consider the report of the committee to whom was referred the bill to augment the salaries of the principal officers of the executive departments, which was adopted; and the question to agree to the third reading of the bill as amended, was determined in the affirmative--yeas , nays , as follows: yeas.--messrs. bingham, bloodworth, chipman, davenport, foster, goodhue, greene, hillhouse, howard, laurance, lloyd, marshall, martin, paine, pinckney, read, sedgwick, stockton, tattnall, tracy, watson, and wells. nays.--messrs. langdon, livermore, and mason. monday, february . the senate resumed the third reading of the bill, authorizing the acceptance, from the state of connecticut, of a cession of jurisdiction of the territory west of pennsylvania, commonly called the western reserve of connecticut; and the question on the final passage of the bill was determined in the affirmative--yeas , nays , as follows: yeas.--messrs. chipman, davenport, foster, goodhue, greene, gunn, hillhouse, livermore, lloyd, marshall, paine, read, sedgwick, stockton, tracy, and wells. nays.--messrs. bingham, bloodworth, brown, howard, langdon, latimer, laurance, martin, mason, pinckney, ross, and watson. friday, march . the senate resumed the third reading of the bill, sent from the house of representatives, entitled "an act to establish the post office of the united states." on motion, to add the following to the amendment of the th section: "_and, provided_, that all the letters and packets franked by any one member, in any one week, shall not exceed thirty ounces; and such privilege shall continue:" it was determined in the negative--yeas , nays , as follows: yeas.--messrs. bingham, davenport, goodhue, hillhouse; howard, livermore, lloyd, paine, ross, sedgwick, stockton, watson, and wells. nays.--messrs. anderson, bloodworth, brown, chipman, foster, greene, gunn, langdon, latimer, laurance, marshall, martin, mason, pinckney, read, tattnall, and tracy. saturday, march . the bill, sent from the house of representatives, entitled "an act authorizing a detachment from the militia of the united states," was read the second time. on the question to agree to the third reading of the bill, it was determined in the affirmative--yeas , nays , as follows: yeas.--messrs. bloodworth, brown, foster, goodhue, greene, gunn, howard, langdon, laurance, lloyd, marshall, martin, mason, pinckney, ross, tattnall, and watson. nays.--messrs. bingham, chipman, davenport, hillhouse, latimer, livermore, paine, read, sedgwick, stockton, tracy, and wells. saturday evening, march . a message from the house of representatives, informed the senate that the house, having finished the business before them, are about to adjourn without day. the senate then proceeded to the consideration of executive business. the senate, then, resuming legislative business, adjourned without day. fifth congress.--third session. proceedings and debates in the house of representatives. monday, december , . this being the day appointed by the constitution for the annual meeting of congress, a number of members of the house of representatives assembled in their chamber. the following are the names of the members present: _from new hampshire._--abiel foster, jonathan freeman, william gordon, and peleg sprague. _from massachusetts._--dwight foster, samuel lyman, harrison g. otis, geo. thatcher, joseph b. varnum, and peleg wadsworth. _from rhode island._--thomas tillinghast. _from connecticut._--samuel w. dana, chauncey goodrich, and roger griswold. _from new york._--david brooks, henry glenn, jonathan n. havens, and hezekiah l. hosmer. _from new jersey._--jonathan dayton, (the speaker.) _from pennsylvania._--david bard, john chapman, william findlay, albert gallatin, john a. hanna, blair mcclenachan, and richard thomas. _from maryland._--george dent. _from virginia._--john clopton, john dawson, david holmes, james machir, and daniel morgan. _from north carolina._--matthew locke, nathaniel macon, and richard stanford. _from tennessee._--william charles cole claiborne. _from georgia._--abraham baldwin. three new members, to wit: jonathan brace, returned to serve in this house as a member for connecticut, in the room of joshua coit, deceased; robert waln, returned to serve as a member for pennsylvania, in the room of john swanwick, deceased; and joseph eggleston, returned to serve as a member for virginia, in the room of william b. giles, who has resigned his seat; appeared, produced their credentials, and took their seats in the house. a little after o'clock the speaker of the house took his chair, the names of all the members were called over by the clerk, and there appearing only forty persons, (fourteen short of a quorum,) a motion was made to adjourn, and the house adjourned accordingly till to-morrow at o'clock. tuesday, december . several other members, to wit: from massachusetts, stephen bullock; from new jersey, james h. imlay; from pennsylvania, john wilkes kittera; from maryland, george baer, jr., william craik, and samuel smith; from virginia, anthony new, abram trigg, john trigg, and abraham venable; from north carolina, thomas blount; and from south carolina, william smith; appeared and took their seats in the house. a new member, to wit: robert brown, returned to serve in this house as a member for pennsylvania, in the room of samuel sitgreaves, appointed a commissioner of the united states under the sixth article of the treaty of amity, commerce, and navigation, with great britain, appeared, and took his seat in the house. but a quorum of the whole number not being present, the house adjourned. wednesday, december . several other members, to wit: from massachusetts, isaac parker, john read, samuel sewall, and william shepard; from connecticut, nathaniel smith; from new york, lucas elmendorph, john e. van allen, and john williams; from new jersey, james schureman; and from south carolina, robert goodloe harper and john rutledge, jr., appeared, and took their seats in the house. and a quorum consisting of a majority of the whole number, being present, the oath or affirmation, to support the constitution of the united states, as prescribed by the act, entitled "an act to regulate the time and manner of administering certain oaths," was administered by mr. speaker to the following new members, to wit: jonathan brace, robert brown, robert waln, and joseph eggleston, who took their seats in the house on the third and fourth instant. _ordered_, that a message be sent to the senate to inform them that a quorum of this house is assembled, and ready to proceed to business. saturday, december . several other members, to wit: from connecticut, william edmond; from maryland, john dennis and william hindman; and from virginia, thomas evans and walter jones, appeared and took their seats in the house. the house having been called to order, and the journal read, the speaker observed that the hour was nearly arrived at which the president had proposed to make his communications to both houses, and read a resolution which was usually entered into on such occasions, informing the senate that this house is formed, and ready to receive any communications which the president may be pleased to make to them. the resolution was adopted, and a message having been sent to the senate therewith, the members soon after entered and took the places prepared for them. at twelve o'clock, lieutenant general washington, with his secretary, colonel lear, major generals pinckney and hamilton, entered the hall, and took their places on the right of the speaker's chair. the british and portuguese ministers, and the british and danish consuls, with their secretaries, had their places assigned them on the left of the chair. _president's speech._ a few minutes after , the president of the united states, accompanied by his secretary, and the heads of the several departments of the government, appeared. the president having taken his seat, and the officers of government theirs, near the general officers, he rose and addressed the two houses as follows: _gentlemen of the senate, and gentlemen of the house of representatives:_ while with reverence and resignation we contemplate the dispensations of divine providence, in the alarming and destructive pestilence with which several of our cities and towns have been visited, there is cause for gratitude and mutual congratulations that the malady has disappeared, and that we are again permitted to assemble in safety at the seat of government, for the discharge of our important duties. but, when we reflect that this fatal disorder has, within a few years, made repeated ravages in some of our principal seaports, and with increased malignancy; and, when we consider the magnitude of the evils arising from the interruption of public and private business, whereby the national interests are deeply affected, i think it my duty to invite the legislature of the union to examine the expediency of establishing suitable regulations in aid of the health laws of the respective states; for, these being formed on the idea that contagious sickness may be communicated through the channels of commerce, there seems to be a necessity that congress, who alone can regulate trade, should frame a system which, while it may tend to preserve the general health, may be compatible with the interests of commerce and the safety of the revenue. while we think on this calamity, and sympathize with the immediate sufferers, we have abundant reason to present to the supreme being our annual oblations of gratitude for a liberal participation in the ordinary blessings of his providence. to the usual subjects of gratitude, i cannot omit to add one of the first importance to our well-being and safety: i mean that spirit which has arisen in our country against the menaces and aggression of a foreign nation. a manly sense of national honor, dignity, and independence, has appeared, which, if encouraged and invigorated by every branch of the government, will enable us to view, undismayed, the enterprises of any foreign power, and become the sure foundation of national prosperity and glory. the course of the transactions in relation to the united states and france, which have come to my knowledge during your recess, will be made the subject of a future communication. that communication will confirm the ultimate failure of the measures which have been taken by the government of the united states towards an amicable adjustment of differences with that power. you will, at the same time, perceive that the french government appears solicitous to impress the opinion that it is averse to a rupture with this country, and that it has, in a qualified manner, declared itself willing to receive a minister from the united states, for the purpose of restoring a good understanding. it is unfortunate for professions of this kind that they should be expressed in terms which may countenance the inadmissible pretension of a right to prescribe the qualifications which a minister of the united states should possess; and that while france is asserting the existence of a disposition, on her part, to conciliate with sincerity the differences which have arisen, the sincerity of a like disposition on the part of the united states, of which so many demonstrative proofs have been given, should even be indirectly questioned. it is also worthy of observation that the decree of the directory, alleged to be intended to restrain the depredations of french cruisers on our commerce, has not given, and cannot give, any relief; it enjoins them to conform to all the laws of france relative to cruising and prizes, while these laws are themselves the sources of the depredation of which we have so long, so justly, and so fruitlessly complained. the law of france enacted in january last, which subjects to capture and condemnation neutral vessels and their cargoes, if any portion of the latter are of british fabric or produce, although the entire property belongs to neutrals, instead of being rescinded, has lately received a confirmation, by the failure of a proposition for its repeal. while this law, which is an unequivocal act of war on the commerce of the nations it attacks, continues in force, those nations can see in the french government only a power regardless of their essential rights, of their independence and sovereignty; and, if they possess the means, they can reconcile nothing with their interests and honor but a firm resistance. hitherto, therefore, nothing is discoverable in the conduct of france which ought to change or relax our measures of defence; on the contrary, to extend and invigorate them is our true policy. we have no reason to regret that these measures have been thus far adopted and pursued; and, in proportion as we enlarge our view of the portentous and incalculable situation of europe, we shall discover new and cogent motives for the full development of our energies and resources. but, in demonstrating by our conduct that we do not fear war, in the necessary protection of our rights and honor, we shall give no room to infer that we abandon the desire of peace. an efficient preparation for war can alone ensure peace. it is peace that we have uniformly and perseveringly cultivated, and harmony between us and france may be restored at her option. but to send another minister, without more determinate assurances that he would be received, would be an act of humiliation to which the united states ought not to submit. it must, therefore, be left to france, if she is indeed desirous of accommodation, to take the requisite steps. the united states will steadily observe the maxims by which they have hitherto been governed. they will respect the sacred rites of embassy. and with a sincere disposition on the part of france to desist from hostility, to make reparation for the injuries heretofore inflicted on our commerce, and to do justice in future, there will be no obstacle to the restoration of a friendly intercourse. in making to you this declaration, i give a pledge to france and to the world that the executive authority of this country still adheres to the humane and pacific policy which has invariably governed its proceedings, in conformity with the wishes of the other branches of the government and of the people of the united states. but considering the late manifestations of her policy towards foreign nations, i deem it a duty deliberately and solemnly to declare my opinion, that, whether we negotiate with her or not, vigorous preparations for war will be alike indispensable. these alone will give to us an equal treaty, and ensure its observance. among the measures of preparation which appear expedient, i take the liberty to recall your attention to the naval establishment. the beneficial effects of the small naval armament provided under the acts of the last session, are known and acknowledged. perhaps no country ever experienced more sudden and remarkable advantages from any measure of policy than we have derived from the arming for our maritime protection and defence. we ought, without loss of time, to lay the foundation for an increase of our navy to a size sufficient to guard our coast, and protect our trade. such a naval force as it is doubtless in the power of the united states to create and maintain, would also afford to them the best means of general defence, the safe transportation of troops and stores to every part of our extensive coast. to accomplish this important object, a prudent foresight requires that systematical measures be adopted for procuring, at all times, the requisite timber and other supplies. in what manner this shall be done, i leave to your consideration. _gentlemen of the house of representatives:_ i have directed an estimate of the appropriations which will be necessary for the service of the ensuing year to be laid before you, accompanied with a view of the public receipts and expenditures to a recent period. it will afford you satisfaction to infer the great extent and solidity of the public resources, from the prosperous state of the finances, notwithstanding the unexampled embarrassments which have attended commerce. when you reflect on the conspicuous examples of a patriotism and liberality which have been exhibited by our mercantile fellow-citizens, and how great a proportion of the public resources depends on their enterprise, you will naturally consider, whether their convenience cannot be promoted and reconciled with the security of the revenue, by a revision of the system by which the collection is at present regulated. during your recess, measures have been steadily pursued for effecting the valuations and returns directed by the act of the last session preliminary to the assessment and collection of a direct tax. no other delays or obstacles have been experienced except such as were expected to arise from the great extent of our country, and the magnitude and novelty of the operation, and enough has been accomplished to assure a fulfilment of the views of the legislature. _gentlemen of the senate, and gentlemen of the house of representatives:_ i cannot close this address, without once more adverting to our political situation, and inculcating the essential importance of uniting in the maintenance of our dearest interests: and i trust that, by the temper and wisdom of your proceedings, and by a harmony of measures, we shall secure to our country that weight and respect to which it is so justly entitled. john adams. united states, _december , _. the president having finished his address, after sitting a few moments, presented the president of the senate and speaker of the house of representatives, each of them, with a copy of it, and withdrew, and after him the heads of departments, senators, general officers, foreign ministers, &c. the speaker then took his chair, and after calling the house to order, proceeded, as is usual, to read over the speech, which being finished, it was committed to a committee of the whole house for monday, and ordered to be printed. the house then adjourned. monday, december . a new member, to wit: richard dobbs spaight, returned to serve in this house as a member for north carolina, in the room of nathan bryan, deceased, appeared, produced his credentials, and took his seat in the house; the oath to support the constitution of the united states having been first administered to him by the speaker. _address to the president._ on motion, the house resolved itself into a committee of the whole on the speech of the president of the united states, mr. dent in the chair; when mr. sprague proposed for adoption the following resolution: _resolved_, that it is the opinion of this committee, that a respectful address ought to be presented by the house of representatives to the president of the united states, in answer to his speech to both houses of congress at the commencement of this session, containing assurances that this house will take into consideration the various and important subjects recommended to their consideration. the resolution was agreed to without objection, and the committee rose and reported the resolution. the house took it up, concurred in it, and appointed a committee of five to prepare an answer accordingly. the committee consists of messrs. dana, venable, harper, hosmer, and baldwin. tuesday, december . two other members, to wit: thomas sinnickson and mark thompson, from new jersey, appeared and took their seats in the house. wednesday, december . several other members, to wit: from rhode island, christopher g. champlin; from pennsylvania, thomas hartley; and from virginia, carter b. harrison; appeared, and took their seats in the house. _address to the president._ mr. dana, from the committee appointed to draft a respectful address in answer to the president's speech, made a report, which was committed for to-morrow. thursday, december . philip van cortlandt, from the state of new york, appeared, and took his seat. _address to the president._ on motion of mr. dana, the house resolved itself into a committee of the whole on the address yesterday reported, in answer to the speech of the president of the united states, and mr. dent having taken the chair, the address was read, as follows, omitting the words printed within brackets, which were added as amendments: the words printed in italics were struck out in the discussion, so that the address to be presented to the president contains the words printed within brackets, and does not contain those printed in italics. john adams, _president of the united states_-- sir: the house of representatives unite with you in deploring the effects of the desolating malady by which the seat of government and other parts of our country have recently been visited. in calling our attention to the fatality of its repeated ravages, and inviting us to consider the expediency of exercising our constitutional powers, in aid of the health laws of the respective states, your recommendation is sanctioned by the dictates of humanity and liberal policy. on this interesting subject we feel the necessity of adopting every wise expedient for preventing a calamity so distressing to individual sufferers, and so prejudicial to our national commerce. that our finances are in a prosperous state, notwithstanding the commercial derangements resulting from this calamity, and from external embarrassments, is a satisfactory manifestation of the great extent and solidity of the public resources. connected with this situation of our fiscal concerns, the assurance that the legal provisions for obtaining revenue by direct taxation will fulfil the views of the legislature, is peculiarly acceptable. desirous as we are that all causes of hostility may be _exterminated_ [removed] by the amicable adjustment of national differences, we learn with satisfaction, that in pursuance of our treaties with spain and with great britain, advances have been made for definitively settling the controversies relative to the southern and the north-eastern limits of the united states. with similar sentiments have we received your information, that the proceedings under commissions authorized by the same treaties, afford to a respectable portion of our citizens, the prospect of a final decision on their claims for maritime injuries committed by subjects of those powers. it would be the theme of mutual felicitation, were we assured of experiencing similar moderation and justice from _another power_, [the french republic,] between _whom_ [which] and the united states differences have unhappily arisen. but this is denied us by the ultimate failure of the measures which have been taken by this government towards an amicable adjustment of those differences, and by the various inadmissible pretensions on the part of that nation. the continuing in force the decree of january last, to which you have more particularly pointed our attention, ought, of itself, to be considered as demonstrative of the real intentions of the french government. that decree proclaims a predatory warfare against the unquestionable rights of actual commerce; which [with] our means of defence, our interest and our honor, command us to repel. it therefore now becomes the united states to be as determined in resistance as they have been patient in suffering, and condescending in negotiation. while those who direct the affairs of france persist in the enforcement of decrees so hostile to our essential rights, their conduct forbids us to confide in any of their professions of amity. as therefore the conduct of france hitherto exhibits nothing which ought to change or relax our measures of defence, the policy of extending and invigorating those measures, demands our sedulous attention. the sudden and remarkable advantages which this country has experienced from a small naval armament, sufficiently prove the utility of its establishment. as it respects the guarding of our coast, the protection of our trade, and the facility of safely transporting the means of territoral defence to every part of our maritime frontier, an adequate naval force must be considered as an important object of national policy. nor do we hesitate to adopt the opinion, that, whether negotiations with france are resumed or not, vigorous preparations for war will be alike indispensable. in this conjuncture of affairs, while with you we recognize our abundant cause of gratitude to the supreme disposer of events for the ordinary blessings of providence, we regard, as of high national importance, the manifestation, in our country, of a magnanimous spirit of resistance to foreign domination. this spirit merits to be cherished and invigorated by every branch of government, as the estimable pledge of national prosperity and glory. disdaining a reliance on foreign protection, wanting no foreign guarantee of our liberties, resolving to maintain our national independence against every attempt to despoil us of this inestimable treasure, we confide, under providence, in the patriotism and energies of the people of these united states for defeating the hostile enterprises of any foreign power. to adopt with prudent foresight such systematical measures as may be expedient for calling forth those energies wherever the national exigencies may require, whether on the ocean, or on our own territory--and to reconcile with the proper security of revenue, the convenience of the mercantile enterprise, on which so great a proportion of the public resources depends--are objects of moment, which shall be duly regarded in the course of our deliberations. fully as we accord with you in the opinion, that the united states ought not to submit to the humiliation of sending another minister to france, without previous assurances sufficiently determinate that he will be duly accredited, we have heard, with cordial _acquiescence_, [approbation,] the declaration of your purpose, steadily to observe those maxims of humane and pacific policy by which the united states have hitherto been governed. while it is left with france to take the requisite steps for accommodation, it is worthy the chief magistrate of a free people, to make known to the world, that justice on the part of france will annihilate every obstacle to the restoration of a friendly intercourse, and that the executive authority of this country will respect the sacred rights of embassy. at the same time, the wisdom and decision, which have characterized your past administration, assure us that no illusory professions will seduce you into any abandonment of the rights which belong to the united states as [a] free and independent [nation.] the clerk having read the address, it was again read by the chairman by paragraphs. [after a few slight amendments the answer was agreed to.] mr. thatcher wished, as no objection was made to the address, that it might be entered on the journals as unanimously agreed to; but, on the question being put, a few noes being heard, the speaker declared it not carried. the usual resolution was then passed, that the speaker, attended by the house, do present the address, and that a committee be appointed to wait upon the president, to know when and where he will be pleased to receive the same. messrs. dana, venable, and harper, were appointed a committee for this purpose. they waited upon the president accordingly, and mr. dana reported that the president would receive the address to-morrow, at his own house, at twelve o'clock.[ ] friday, december . several other members, to wit: james cochran, from new york; william matthews, from maryland; josiah parker, from virginia; and thomas pinckney, from south carolina, appeared, and took their seats in the house. _answer of the president._ the hour having arrived at which the president had appointed to receive the address of this house in answer to his speech to both houses, the speaker announced it, and the house withdrew for the purpose of presenting the address. in about a quarter of an hour, the members returned; when the speaker, having taken his chair, proceeded to read the answer to their address, a copy of which had been put into his hand by the president. it was as follows: _to the house of representatives of the united states:_ gentlemen: my sincere acknowledgments are due to the house of representatives of the united states, for this excellent address, so consonant to the character of representatives of a great and free people. the judgment and feelings of a nation, i believe, were never more truly expressed by their representatives than those of our constituents, by your decided declaration, that with our means of defence, our interest and honor command us to repel a predatory warfare against the unquestionable rights of a neutral commerce. that it becomes the united states to be as determined in resistance as they have been patient in suffering and condescending in negotiation. that, while those who direct the affairs of france persist in the enforcement of decrees so hostile to our essential rights, their conduct forbids us to confide in any of their professions of amity; that an adequate naval force must be considered as an important object of national policy; and that, whether negotiations with france are resumed or not, vigorous preparations for war will be alike indispensable. the generous disdain you so coolly and deliberately express, of a reliance on foreign protection, wanting no foreign guaranty of our liberties, resolving to maintain our national independence against every attempt to despoil us of this inestimable treasure, will meet the full approbation of every sound understanding, and exulting applauses from the heart of every faithful american. i thank you, gentlemen, for your candid approbation of my sentiments on the subject of negotiation, and for the declaration of your opinion, that the policy of extending and invigorating our measures of defence, and the adoption with prudent foresight of such systematical measures as may be expedient for calling forth the energies of our country, wherever the national exigencies may require, whether on the ocean or on our own territory, will demand your most sedulous attention. at the same time, i take the liberty to assure you, it shall be my vigilant endeavor, that no illusory professions shall seduce me into an abandonment of the rights which belong to the united states, as a free and independent nation. john adams. united states, _december , _. monday, december . several other members, viz: from connecticut, john allen; and from virginia, samuel j. cabell and thomas claiborne, appeared, and took their seats in the house. _remonstrance of georgia._ reclamation for sacrificed territory--comparative expenditure in defending northern and southern frontiers from indian depredations. the house then resolved itself into a committee of the whole, on the report of a select committee on the representation and remonstrance of the state of georgia; which was read as follows: "report of the committee to whom was referred the representation and remonstrance of the legislature of the state of georgia: "that a certain tract of country, within the limits of georgia, bounded by a line beginning at the fork of oconee and ocmulgee rivers, and thence running in a south-west direction, until it intersects the most southern part of st. mary's river, thence down the river to the old line, was ceded by the creek nation of indians, to the said state, by a treaty held between the commissioner of said state, and the creek indians at galphinton, on the th of november, , which tract of country was, by the legislature of said state, formed into a county, by the name of talessee county; and the cession thereof was afterward confirmed, at a treaty held between the same parties, at shoulderbone, on the d day of november, . "your committee further report, that, by the treaty made at new york, between the united states and the creek indians, bearing date on the th day of august, , a boundary line was established between the said nation of indians and the united states, whereby the above described tract of country, named talessee county, was declared to be within the indian territory. "the committee have not been able to discover upon what principles the relinquishment of the territory of the state of georgia was acceded to on the part of the united states; it is therefore to be presumed that it was done upon principles of general policy, with the intention of establishing a permanent peace between the united states and the said nation. they are, therefore, of opinion that compensation ought to be made to the state of georgia for the loss of this territory, and recommend to the house to adopt the following resolution: "_resolved_, that the united states will make compensation to the state of georgia, for the loss and damage sustained by that state, in consequence of the cession of the county of talessee, made to the creek nation, by the treaty of new york, unless it shall be deemed expedient to extinguish the indian title to the said land." mr. baldwin said, he should not call for the reading of the remonstrance, as it had already been twice read, and had also been published in the newspapers. the committee in their report have stated such parts of it as they thought necessary to lead the house to a decision. it is seen at once to relate to two objects: what they consider as a dismemberment of the state, by giving back to the indians a district of country, called talessee county, and the injurious operation of the act for regulating trade and intercourse with the indians. he was himself at new york at the time when the treaty, called the treaty of new york, was made; he knew well it was with great concern and reluctance that the federal government consented to an act which had so much the appearance of dismembering a state, as giving back talessee county to the indians; but that frontier was so extensive, the savages who border upon it were so much more numerous and hostile than any others in the united states, that they were induced to consent for a time to the relinquishment of that district to them, as the counterpart of all the other conditions which they obtained in that treaty. he was sure it was at that time their expectation and design to have before now peaceably repurchased it of the indians. the act was not founded on any defect in the right of the state to that county; but a short time before, three commissioners, viz: gen. lincoln, judge griffin, a former member of congress, and mr. humphreys, who is now our minister at madrid, were sent to examine into the state of that frontier, and to form treaties with the neighboring tribes; they were unwearied in the execution of their trust, visited the frontier in person, collected the indian chiefs to meet them there, to learn what information they could give; they afterwards returned to the seat of government of georgia, and examined the treaties, laws, and journals, and examined individuals on oath, so as to obtain all the information that it was possible to procure, on the spot. on their return they made a special and very full report, a copy of which is on the files of the house, and, without doubt, is to be regarded on those subjects as a document paramount to every thing else, at the time it was made. this document leaves no doubt of the fairness of the transaction in the treaties of and , in which this talessee county was purchased and contained, as stated by the committee. the giving it back, by the subsequent treaty of new york, rested only on the importance and urgency of the case, as the only possible means of obtaining peace. on the other point contained in the remonstrance, viz: the injurious operation of the law respecting trade and intercourse with the indian tribes, he did not think it necessary now to make many observations, the report of the committee was, that it should be revised and amended; as that law expires by its own limitation with this session, it is a subject that must be taken up, and at that time he should submit to the consideration of the house the various matters which seemed to impress themselves so strongly upon the minds of his constituents. mr. b. said, the report of the committee was peculiarly grateful to him, and he hoped the confirmation of it by congress would be so to his constituents, because the individuals who composed the committee were so long and so well known in the united states, that their report will be likely to have a great effect in finally settling the minds of people on those old subjects of reproach and discord, especially as it is in direct conformity with the copious report of the three commissioners who examined into the same subject on the spot, as he had before mentioned. this appeared to him to be a matter of great importance. from the close of the revolution to the present time, these reproaches have always been at the threshold, to encounter every thing that was proposed in behalf of that growing and important part of the united states. the revolution had raged there to such a degree, and the minds of men were so embittered against each other, that it required more than the usual time for them to lay aside the fierceness of their hostility. though their enemies were driven from them, yet they were not driven beyond the recoil of their resentment. this, joined to the disappointment of some pecuniary enterprises of individuals for gain, had been the cause of those malignant torrents of reproach which have but too long poured forth upon the greater part of their councils, and upon the most distinguished of their public servants. it was well known to him, and to some who heard him, that their calls for protection on a very extensive and very turbulent frontier, had, till within these few years, always been repelled with reproaches, that they had never been any thing but an expense; were totally delinquent in bearing the burdens of the revolution; that they had been carried through entirely at the expense of the other states; and that they ought not now to be protected any further till they were willing to pay requisitions. when this reproach was wiped off by the report of the general board of commissioners, on the settlement of the whole account of the old co-partnership of the confederation, and the very small number there, at that time, appeared to have done the proportion of the whole number by the census which was the rule of the settlement, and to have reimbursed the great delinquency of the loan officers appointed by congress, for which they were made accountable, still they were told they must protect themselves, for they wronged the indians out of their lands, and this was the cause of their suffering. it appears now, in the result, that they have always discharged all their federal obligations, and much more, and instead of getting away the lands from the indians, the indians have got away their lands, and they cannot get them back. he believed there could not be much doubt left but that the principles contained in the report of the committee were just and proper. these had been to him for many years very sore objects; the position in which he considered them immovably fixed gave him great pleasure. his constituents had not sent him here to play the champion. he thought it could not be denied that there was some ground for them to triumph over those who had so long vilified and abused them. he begged leave still further to urge the measures recommended by the committee, from the consideration of the small expenditures which have been made on that frontier, in proportion to the others. the accounts of the military expenditures on the northern frontiers, were now more than ten millions of dollars. this had been begun, and principally originated from a regular expedition to destroy a village of fugitive indians, who committed depredations on the northern frontier; a similar village on the southern frontier, called the chehaw, was also destined by the government for a similar expedition; but the measure failed in the legislature, and that frontier was left to protect themselves. this has been done; the fugitives in that village have been driven off by a party of volunteers. he believed the whole amount of military expenditures on that frontier, till the time of entire peace with the indians, did not exceed a quarter of a million, and nearly one hundred thousand of that the militia had now been kept out of for four or five years; though he hoped and trusted they would not much longer have cause of complaint on that head. after the observations which he had made, he thought no apology was necessary for some apparent harshness in the language of the remonstrance. as to the course which it is proper to pursue in granting relief on the subject, he had not much to say. he was confident the expectations of the state were not unreasonable; he was sure they would be satisfied with any result which could be considered as fair and honorable; and his confidence in the house forbade him to suppose for a moment that it could be brought to any other. the course recommended by the committee in their resolution now under consideration, is either to make compensation to the state for the land which has been relinquished, and for the damages which they have sustained, or else to repurchase that district or another district, on that frontier, of equal value. he said he had laid on the table a certificate from the surveyor general of that state, taken at that time, as to the length of the lines enclosing that district, and the probable contents of it. if the report of the committee should be agreed to, a bill might be reported in conformity to one or the other, or all of those principles, as might be thought proper. he was contented in leaving it to the judgment of the house. on the call of mr. brooks, the representation and remonstrance were read. after which, mr. champlin moved that the committee might rise, with a view of postponing this subject till the next session of congress. he thought the language of the remonstrance too violent and indecorous to claim attention from the house. this opinion was also supported by mr. dana. messrs. bayard and n. smith wished this motion to prevail, because they doubted the propriety of the report, and supposed there would not be time thoroughly to investigate the business during this session. on the other hand, messrs. pinckney, rutledge, harper, gallatin, venable, w. claiborne, j. parker, and macon, were against the postponement. the objection to the language, it was said, was out of time. if made at all, it ought to have been made when the remonstrance was presented; that some allowance ought to be made for the language, as it appeared to have been drawn in a moment of passion; that if the claim was just, it ought not to be rejected because it was made in improper language, especially, since the legislature of georgia were not the only persons concerned, as the inhabitants on the frontier, while this subject is undecided, are suffering severely from indian cruelties and depredations. the question for leave to be given to the committee to sit again, was carried by votes. tuesday, january , . _impressment of seamen._ the following message was received from the president of the united states: _gentlemen of the house of representatives:_ in compliance with your desire, expressed in your resolution of the d of this month, i lay before you an extract of a letter from george c. morton, acting consul of the united states at havana, dated the th of november, , to the secretary of state, with a copy of a letter from him to l. trezevant and william timmons, esqs., with their answer. although your request extends no further than to such information as has been received, yet it may be a satisfaction to you to know that as soon as this intelligence was communicated to me, circular orders were given, by my direction, to all the commanders of our vessels of war; a copy of which is also herewith transmitted. i also direct this intelligence and these orders to be communicated to his britannic majesty's envoy extraordinary and minister plenipotentiary to the united states, and to our minister plenipotentiary to the court of great britain, with instructions to him to make the proper representation to that government upon this subject. it is but justice to say that this is the first instance of misbehavior of any of the british officers towards our vessels of war, that has come to my knowledge. according to all the representations that i have seen, the flag of the united states, and their officers and men, have been treated by the civil and military authority of the british nation, in nova scotia, the west india islands and on the ocean, with uniform civility, politeness, and friendship. i have no doubt that this first instance of misconduct will be readily corrected. _jan. , ._ john adams. [circular.] _to the commanders of armed vessels in the service of the united states; given at the navy department, december , ._ sir: it is the positive command of the president, that on no pretence whatever, you permit the public vessel of war under your command to be detained, or searched, nor any of the officers or men belonging to her to be taken from her, by the ships or vessels of any foreign nation, so long as you are in a capacity to repel such outrage on the honor of the american flag. if force should be exerted to compel your submission, you are to resist that force to the utmost of your power, and when overpowered by superior force, you are to strike your flag, and thus yield your vessel, as well as your men; but never your men without your vessel. you will remember, however, that your demeanor be respectful and friendly to the vessels and people of all nations in amity with the united states; and that you avoid as carefully the commission of, as the submission to, insult or injury. i have the honor to be, sir, your obedient servant, ben. stoddert. letters which accompanied the above message: _extract of a letter from george c. morton, acting consul of the united states at the havana, dated there the th november, , to the secretary of state._ "by the delegation of daniel hawley, esq., i am at present acting as consul of the united states in this district, with which he will most probably have acquainted you. it imposes upon me the mortifying task of informing you, sir, of the partial capture of an american fleet under the convoy of the baltimore sloop-of-war, ---- phillips, esq., commander, by a british squadron, off this harbor, accompanied with circumstances rather grating to the feelings of americans, and by no means analogous to that good harmony which seems to subsist between the two governments. "the answer of messrs. trezevant and timmons to my annexed note of the th instant, requesting an exact relation of the occurrence, will i presume be deemed as impartial a narration as can be given of the whole transaction, they having been passengers on board one of the captured vessels, and removed to the baltimore. "mr. morton adds, that commodore loring ordered the fifty-five men out of the baltimore "on board of his ship, previous to any proposal of exchanging the natives of one nation for those of the other, and retained five of the hands as being british subjects, without giving an equal number of americans, whom he acknowledged to have on board."" havana, _november, , _. gentlemen: as acting american consul for this city and district, and of course obliged to forward the most correct statement possible to the government of the united states officially, i would beg the favor of you, gentlemen, to furnish me with an exact relation, under your signatures, of the unpleasant occurrence which took place off the moro castle on the th instant, by which you will much oblige, gentlemen, your most obedient servant, geo. c. morton. l. trezevant and w. timmons, esqs. n. b.--it would be proper to premise that you were passengers, and your distance from the moro castle at the time of capture. g. c. m. * * * * * havana, _november , _. sir: agreeably to your request, we now commit to writing the best account we are able to give you of the conduct of captain loring, commodore of the british squadron which was lately off the moro, towards the united states ship baltimore. we must observe, however, that all we can say of it is from the information of captain phillips, as we were not on board the baltimore when she was visited by captain l.'s officers. in the morning of the th instant, we discovered this squadron when we were in sight of the moro, and afterwards found it was composed of captain loring's ship, the carnatic, of guns; captain ----'s ship, the thunderer, of the same force; captain dobson's ship, the queen, of guns; captain donnelly's frigate, the maidstone, of guns; and captain hardy's frigate the greyhound, of the same force. we were passengers in the brig norfolk, captain butler, which, together with the ship eliza, captain baas, and the brig friendship, captain fuller, were cut off from their entrance into port, and were all made prizes within gunshot of the moro. we obtained leave to go on board the baltimore with our baggage, and did so. when captain phillips discovered they were english ships, (which was before we were taken,) he stood towards them, and spoke the commodore. after we got on board the baltimore, the captain informed us that he had been on board the carnatic, and the commodore told him he should take out of the baltimore all such men as had not american protections; that he had remonstrated with him against showing such an indignity to our flag; that to do so would leave his ship in a very defenceless state, and would deprive him of nearly all his men, as not even those who were really americans, or at least very few of them, could show protections, because it was always thought that our flag on board of a government ship, was a sufficient protection. all this, however, was urged in vain. captain p. returned to his ship, and the commodore sent an officer on board the baltimore, who carried away fifty-five of her men to the carnatic. captain phillips remained in expectation that nearly all the rest would be taken from him; but whether the commodore, upon reflection, thought better of it, or whatever else might have been his motive, he sent back fifty, and kept five, among whom was the ship's boatswain. captain loring proposed to give up a number of american seamen, who, he said, were in his fleet, if captain p. would give him english subjects for them. captain p. refused this offer, and the american seamen were not delivered to him. before any of the men were returned, he sent a message to captain p. to let him know if he, or one of his officers, would go on board of him, and point out who were americans and who were not, he would return all the americans; but this was declined also. after we got on board the baltimore, he sent a letter to captain p. which he showed to us, in which the commodore "demanded" that he would give up all the british subjects on board the baltimore. to this, captain p. replied that he could not know any of his men as british subjects, nor could he, as commander of a ship, in the service of the united states, voluntarily give up any of his men; but if he thought fit to send an officer on board, with orders to take any number of his men, he should not oppose it. in this answer, captain p. mentioned he should lay before the executive of the united states a full account of the occurrences of the day. shortly after sending this reply, the squadron set sail, and left the baltimore. commodore l. was very polite to us, and was so to captain p. when he went on board; but captain p. complained of indecent behavior from the inferior officers. lewis trezevant, wm. timmons. g. c. morton, esq., _vice consul of the u. s. at havana_. the message and documents were read, and ordered to lie on the table. monday, january . edward livingston, from new york, appeared, and took his seat. monday, january . _intercourse with france, and her islands._ san domingo. the fourth section of the bill to suspend this intercourse being under consideration, mr. nicholas said, there are some words in this section [in italics] which he did not understand, and if he could not get an explanation of them in any other way, he would move to strike them out. they are not in the former law; and they are very extensive. they go to this, that a man in authority in one of these islands, be his authority as limited as it may, may make an agreement on the subject of intercourse different from what he is authorized to do by the republic of france, and, in that case, the island is to be open for our commerce. he wished for some information on this subject. mr. s. smith understood, that the reason why these words had been introduced into the bill was, in order to meet the case of hispaniola.[ ] it was well known that a new agent had succeeded hedouville there; that he has published a proclamation, stating, that notwithstanding the decree of the french republic, which directs the seizure of all american vessels and their cargoes, whenever there shall be found on board an article of british manufacture, he was authorized to suspend that decree so far as relates to vessels coming to that island. and, mr. s. said, if any agent in the west indies could give assurances that no capture should take place from the island of which he is governor, then the president shall be authorized to open our commerce with that island. it was on this ground that he had given his consent to this clause of the bill. mr. nicholas said, if the clause were intended to meet the case to which the gentleman had alluded, the agent had his powers from the french government, and whatever he did must be considered as done by that government, until his power shall be revoked; but as the clause stood, it would authorize the president to treat with usurpers; not merely with persons in power, but with any persons having momentary possession of a place, and he could not agree to such a principle. why, asked mr. n., was this law originally passed? was it not an order to bring france to terms by distressing her islands? suppose france should say to one of her agents in the west indies, "you shall be authorized to make a stipulation with the united states to take off the suspension of intercourse with respect to your island." would not this be to acknowledge that there our regulation pinched her? and would not the opening of intercourse with such a place, by relieving the distresses of france, defeat the original intention of the law? [mr. harper asked if there was any question before the committee?] mr. n. said he would make one by moving to strike out this section. a clause of this kind, mr. n. said, held out an invitation to agents to abandon their country, and to set up governments of their own. if it were to operate only in a partial manner, for the relief of such of the french islands as are so far distressed as that the government should be willing to restrain her depredations, so far as related to those particular places, where will be the efficiency of the law afterwards? it will only prove a burden upon our own citizens, without injuring france. if we are to have a free trade with the west indies, why deprive tobacco planters of going immediately to the country where the article is consumed, instead of going through spain, and by other circuitous routes? but the other aspect of the bill, mr. n. said, was the most extraordinary and exceptionable he ever saw. it authorized the president to treat with persons "claiming authority." this provision may produce consequences the most fatal. suppose any of the islands make a separate negotiation with this country; what will be the effect of our having thus enticed them to disobey their government? will this government not be chargeable with having assisted in detaching such a colony from its government? and if so, could any thing afford a more lasting cause for war than an act of this kind? if there be any disposition in the french government to treat, (which, however, the secretary of state denies,) a conduct of this kind would effectually root it out, and there could be no treaty--no peace between the two countries--for years to come. if gentlemen, therefore, can give no better explanation of this clause than has already been given, he hoped it would be stricken out. mr. otis did not believe that a more unjustifiable jealousy ever entered the heated imagination of the gentleman from virginia, than that which occupies it at this moment. he seems to think that this section of the bill is intended only to encourage usurpation and rebellion, whereas a slight attention should convince him, that when any one of the french islands or dependencies revolt and declare for independence, neither the law passed the last session nor this bill will apply to such a case. in such an event, there is nothing in the existing laws to prevent our carrying on a free trade with such revolted island. if attention be paid to the first section of the bill, it will be seen to apply only to such places as are under the acknowledged government of france; and the moment a place is no longer under her government, both the existing law and this section become null with respect to that place, and a new relation would be created which would be regulated under the law of nations. if a rebellion of this kind should break out, it would become a question to what extent we ought to carry on commerce with the rebellious place; and we should then be governed by existing circumstances. if we should be at war with france, we should doubtless, said mr. o., avail ourselves of the trade to its full extent, without respect to her wishes; but if an accommodation of differences should be effected, and the mother country should prohibit all trade with the revolters, it is not presumable that this government would sanction any commerce that would provoke a war, or protect adventurers from the seizure and confiscation of their property. but it is not enough, observed mr. o., to say that this section does not relate to rebellious colonies; it is merely a provision to meet such conditions as the agents of the executive directory are entitled to make, consistently with their allegiance to their own country--such at least as they constantly undertake to propose. without assuming to define the powers of these agents, it was very clear that they have undertaken to dispense with the decrees and laws of the republic, whenever the exigencies of their governments have, in their opinion, made it necessary or convenient. at st. domingo and at guadaloupe, the agents seem to exercise an unlimited control over the trade and maritime concerns of those islands. he presumed they had a discretionary right given to them to relax or suspend many of the decrees of the mother country, with respect to the territory they are appointed to govern. the uniform conduct of santhonax and polverel, and of all the commissioners at st. domingo, show this to be the case; and at guadaloupe, victor hugues has proved himself to be nothing less than a despot. if this bill passed, these commissioners may open the commerce with this country, even though an open war should exist between this nation and france. nay, mr. o. said, he had a proclamation of hedouville, the late agent at cape francois, in his hand, which shows that he had determined to adopt this line of conduct. [mr. o. read the proclamation which states that neutral ships and cargoes, that provisions and dry goods, shall be admitted into st. domingo in american bottoms, that they shall not be seized when destined for french ports, but pass unmolested by french cruisers even if war should break out between the mother country and the united states.] now, said mr. o., the interests of this country, and of our mercantile citizens in particular, require us to place ourselves in a situation to meet these advances. can there be any difficulty in giving to the president a power with respect to the trade with a part of the french dominions, which he at present possesses over the whole? gentlemen have said that an agent has arrived from a usurper in st. domingo. mr. o. said he did not know the fact. he did not know of any usurper in st. domingo. he believed general toussaint had succeeded hedouville in the government of that island; that he had, in imitation of his superiors, sent him off in the same way as in the mother country are sent off those who may be obnoxious to the designs of the reigning and the strongest party. but it does not follow that these measures of general toussaint will not be ratified by the french government. the same general had heretofore sent off the commissioner santhonax. he was not, however, for this cause declared to have forfeited his allegiance, but pains were taken to appease and reconcile him, and santhonax came back. he was afterwards succeeded by hedouville, who is, in his turn, sent on a voyage to france. but, said mr. o., shall we now begin to examine into the legality of the powers of persons in authority, either in france or in her west india possessions? have we not uniformly adhered to the principle that those who exercise power _de facto_ are the only persons that we are bound to recognize? from the first dawn of the revolution, we have, said he, never questioned the legitimacy of the power exercised in france; to us it seemed indifferent whether jacobins or girondists were at the helm of affairs; whether it was a reign of terror or of moderation. we have constantly sung hosannas and offered adorations to the great republic, one and indivisible, without considering by whose hands the power was exercised. it is now too late to change this system. we have no way of knowing, said mr. o., whether the agents of the directory act in conformity to the will of their masters or not, until the government declares them out of their allegiance. it will then be soon enough for us to determine the posture which good faith and policy require us to take. but, the gentleman from virginia says, we ought not to treat with individuals under any circumstances; but it appears probable that the french republic may permit her agents to carry on this commerce, and to give us satisfactory assurances of safety and protection without a treaty; and such an arrangement would be advantageous to that republic. we find, indeed, said mr. o., from the papers on the table, that one of the complaints of that government is founded on this suspension of intercourse, and therefore to restore the trade in part is to diminish the cause of complaint. with respect to the remark of the gentleman from virginia, that it was the object of the original act, by distressing france, to bring her to terms, he differed in opinion from him. it was merely a defensive measure. our trade became so insecure, that it was necessary to do--what? conquer france? no; but to prevent the ruin which threatened our citizens, by prohibiting all intercourse with that country and its dependencies; and whenever an end is put to those aggressions and depredations, the suspension may be removed. this, said mr. o., is not a novel practice. at the commencement of the late war, the citizens of the bahamas were excepted from the general regulations and orders prescribed to our privateers. it is very possible to be at war with a nation, and yet at peace with a certain portion of its territory. we find, by the papers on our table, that france says her privateers have transgressed their authority, and that they have now determined that no commissions shall be issued, except by their agents. let us be prepared to meet them, if they will act accordingly; and if their agents in the colonies restrain privateering, and depredations within their respective jurisdictions, let us avail ourselves of their good dispositions without any nice inquiries. mr. o. had said, that this law had no allusion to any country in rebellion; but he could conceive it possible that st. domingo may declare itself independent, and become so, in spite of the opposition of france, or the wishes of this country. far be it from me, continued mr. o., to contend that it is desirable for the interest of the united states that such an event should happen; such a doctrine at this moment would be unseasonable and improper; but, if it does take place, he might say, without offence, it would be good policy to be upon the best terms with the persons in authority there; if not, the inhabitants of that island may become pirates upon our trade, and do us more mischief than we formerly suffered from the barbary powers. to prevent which, let us feed and clothe them, and deprive them of inducements to quit their island. mr. harper did not know that he could give an explanation of this section which would be satisfactory to the gentleman from virginia; but he would state what was the intention of the bill, and what he thought would be its effects. he conceived that the section now under consideration is in strict conformity with the bill heretofore passed. the object of that bill was twofold; first, to save our commerce from that speculative and hazardous enterprise which the high profits made by successful voyages enticed the merchant to go into, which was a species of gambling by which some made large fortunes, and others sustained heavy losses. this trade was something of the nature of faro-banks, or lotteries, which all good governments have thought proper to prohibit. the government of this country thought it wise to interfere, and say to the merchants: "you shall not run these great risks; for though a few of you make great gain by the trade, the loss upon the whole is much greater than the gain." this was one object. the other was, to deter the french nation, and those exercising authority under it, from committing depredations upon our commerce, and thus procure protection to our trade. by what means was this to be accomplished? by withholding from the french those articles of prime necessity which they were accustomed to receive through the medium of commerce, to produce an effect which they should feel. let us examine, said mr. h., whether this section is in conformity to these two objects. there could be no doubt with respect to the first, because if you can prevail upon those who heretofore encouraged privateering, to forbear to make further depredations, our commerce will unquestionably be rendered safe. the reason, therefore, for laying the restriction, is thus removed; and he saw no reason why it should be continued. mr. gallatin said, one of the objects of this bill when it passed at the last session, was to prevent depredations upon our commerce; but a majority of the house who voted for it, did so with a view of compelling france, by the loss of our trade to her islands, to come to reasonable terms of settlement with the united states. it was then said by some gentlemen, that it was not improbable that the trade to the west indies was even more advantageous to the united states than to france, valuable as it was to her; and that, therefore, it would not produce the effect predicted. this was his opinion, and he therefore voted against the bill. but, though he voted against this measure, and some others, which, he thought at the time premature, yet a majority of congress having, by adopting them, placed the nation in its present situation, whatever his opinion might then have been, and whatever it might now be, as to the probability of an end being put to our differences with france, he should think it bad policy, under present circumstances, to recede from the ground then taken, since such a conduct could betray nothing but weakness, and tend to defeat the object which all doubtless have in view, whatever might be the different opinions of obtaining it, an honorable peace. though this law, therefore, was limited to the present session, he was ready to vote for a continuance of it; but the section now under consideration goes entirely upon new ground, and entirely different to any either taken or avowed at the last session. the law now in existence, said mr. g., has a section something similar to this, though widely different in substance. it is to this effect; that if, before the next session of congress, the government of france, and all persons under its authority, shall disavow and be found to refrain from depredations upon our commerce, then it shall be lawful for the president to suspend the operation of this law. not to any part, but with the whole. by that law, we said, "we are not yet at war with you, we will adopt such measures as we think necessary for our present situation. we will suspend commerce with you as a nation; but if you, as a nation, shall disavow and refrain from depredations, we have given the president power to renew our commercial intercourse with you." but what, said mr. g., is the language of this section? it is this. [he read the section as above.] it is, that if any part of the nation, or any commanding officer, or person claiming authority, in any one port, or island, shall take those steps which we consider necessary for that nation to take, it shall be lawful for the president to remit and discontinue the restraints, prohibitions, &c. instead of taking a general national ground, it provides for the negotiation of an individual, on his private account, who may either exercise, or claim to exercise, authority in any island, &c. we are not, said mr. g., at war, and an act of this kind is an act which, if it can be justified at all, can only be made use of in a state of war. it is only in such a state that we are authorized to declare, that we will act a different part with certain parts of a country at war, from what we meant to act with the whole; that we will negotiate, treat, make specific regulations with private individuals, provided they shall do--what? disavow what the french republic does not disavow. the present act makes it necessary for the disavowal to come from the government; but this section says, "that although the french government shall not disavow or restrain her depredations, &c., yet if an individual shall do it, we will open a trade with this individual." this would be to encourage insurrections. it is establishing a doctrine which is reprobated almost every day on this floor--that it is right to divide a people from their government. mr. g. conceived, therefore, that the question comes to this: is it proper to give power to the president, under our present circumstances, to stipulate with certain agents, that in case they will disobey their government, by declaring themselves independent, or by throwing themselves into other hands, we will renew our commercial intercourse with you? no man, said mr. g., will deny that a trade of this kind would be advantageous to the united states; he believed it to be one of the most lucrative branches of our commerce; but it was nevertheless thought proper, at the last session, to suspend it, in order, as then supposed, to effect a greater good. therefore, this commerce being advantageous to the united states, is not a sufficient reason why this measure should be taken, if it be wrong in itself, and may produce greater mischiefs than the trade can do us good. what, said mr. g., are the inconveniences which would arise from a measure of this kind? it must be allowed, in the first place, that it would give the lie to all our former declarations of abhorrence against the attempts of other countries to divide the people of a nation from their government; for we here, said he, assume the ground that it is proper to negotiate and stipulate with a part of the people, with a certain district of a country, with any person who shall choose to say that he claims the right of governing in any place. we abandon the general ground of treating with a foreign government, and determine to treat with any individual who may either have, or claim to have, authority. mr. g. believed a principle of this kind at all times improper; and it would be peculiarly improper in us to act upon it, with respect to a nation, against which we have so many grounds of complaint of this kind. he had already stated, that it could only be justified in a state of war, if then, to hold out encouragement to insurrection and rebellion to the colonies of another country. mr. g. believed he might go so far as to say that this section was not inserted to meet the case spoken of by the gentleman from maryland; but for the admission of one which had been a subject of discussion in the newspapers for some time past. he meant what was generally understood by the mission of toussaint, a black general, of st. domingo. it had been asserted, from the moment of the arrival of a supposed agent, that he came here with the late consul of the united states at that port; that he brought despatches from toussaint to our government. further than this, we have seen, in some of the newspapers printed at the eastward, that this mission is likely to have some effect. we have seen it there stated, "that the president is neither rash nor diffident, and that good effects may be expected to flow from this mission." so far, on the authority of the public newspapers, and none of these assertions have been denied. should i be doing right, said mr. g., to say that i believe that this section of the bill is an effect of that negotiation? it is true i only deduce this from probability, but the probability is strong. mr. g. said he knew that the independence of st. domingo had been a favorite theme with gentlemen, and they had made an appeal upon it to the avarice of the people of the united states, that, in case of war, this independence would be of advantage to the united states, and that, during a time of peace, the minds of the people ought to be prepared for this event. but gentlemen seem to think that the public mind is not yet ready for this change, or they do not choose to avow the object of this mission. which, he could not tell; but he would advise those gentlemen who have received information on this subject to communicate it. mr. g. said he should be happy to know the subject of the despatches of general toussaint. what is his offer to our government? whether his ideas go to independence or not? whether he is in any way connected with the british government, or not? whether the sudden and extraordinary evacuation of st. domingo by general maitland was to promote something of this kind, or to support the force of general toussaint? he should wish to know what is the disposition of the executive with respect to this business, so far as it shall have come to the knowledge of any of these gentlemen. he would also be glad to know the disposition of this agent, or the nature of his object, at least so much of it as may have escaped at any _petit soupér_ or _dinér_, at which these gentlemen may have been parties? if any such information could be obtained, it might tend to throw some light upon the subject. if he should be mistaken in his views of it, it would be wholly owing to his being deprived of that information, which he believed either the executive, or some of the members on this floor possess. mr. g. believed the object of this section is to give encouragement to the black general in his present views. a single sentiment had dropped from the gentleman from massachusetts (mr. otis) in the course of the debate, which had given rise to part of what he had said on this subject, and which led him to believe that he had some information which he ought to communicate. he said, "if st. domingo should finally be independent, it was proper to cultivate a good understanding with that island at present, and not refuse"--what? "to hold out certain encouragement to them in such an event." when? now; so that we are not only to cultivate a good understanding with st. domingo, if it should become independent, but in the expectation of it, and before it takes place, it is proper to cultivate a good understanding with that island, by holding out the encouragement proposed by this bill. this was nothing less than to confess that this section is inserted in the bill to encourage toussaint to declare the island independent. nay, his views, if he is a man of sense, must go further; he must not only secure a temporary trade, but he would also desire to know whether it be the wish of this country that st. domingo should become independent; because he should suppose that if the government of the united states was opposed to such an event, a temporary trade would not be a sufficient inducement to him to throw off his present allegiance. to me, however, said mr. g., if it be the intention of the general to declare it, the independence of st. domingo is a very problematical event. it would certainly be the interest of great britain to oppose an attempt of this kind; since it could not be her interest to have a black government there. but supposing the event possible, he should consider it as extremely injurious to the interests of the united states. suppose that island, with its present population, under present circumstances, should become an independent state. what is this population? it is known to consist, almost altogether, of slaves just emancipated, of men who received their first education under the lash of the whip, and who have been initiated to liberty only by that series of rapine, pillage, and massacre, that have laid waste and deluged that island in blood; of men, who, if left to themselves, if altogether independent, are by no means likely to apply themselves to the peaceable cultivation of the country, but will try to continue to live, as heretofore, by plunder and depredations. no man, said mr. g., wishes more than i do to see an abolition of slavery, when it can be properly effected; but no man would be more unwilling than i to constitute a whole nation of freed slaves, who had arrived to the age of thirty years, and thus to throw so many wild tigers on society.[ ] if the population of st. domingo can remain free in that island, he had no objection; but, however free, he did not wish to have them independent, and he would rather see them under a government that would be likely to keep them where they are, and prevent them from committing depredations out of the island. but if they were left to govern themselves, they might become more troublesome to us, in our commerce to the west indies, than the algerines ever were in the mediterranean; they might also become dangerous neighbors to the southern states, and an asylum for renegadoes from those parts. this being the case, mr. g. said, he must deprecate every encouragement which may be held out to produce such an event. did not gentlemen recollect what an alarm was sounded last year, with respect to the probability of an invasion of the southern states from the west indies; an alarm upon which some of the strongest measures of the last session were grounded? mr. g. could not help hoping, there would be a general wish not to take any measure which may embody so dangerous a description of men in our neighborhood, whose object may be plunder, and who might visit the states of south carolina and georgia, and spread their views among the negro people there, and excite dangerous insurrections among them. he did not wish, therefore, to see this black population independent; and that the interest will be wholly black is clear. the general is black, and his agent here is married to a black woman in this city. mr. g. did not mean by this to throw any reflection upon the general. he believed he had behaved well to americans. his remarks were general, and were only intended to show that it would be with a black population we must treat. wednesday, january . mr. s. smith said, that if he thought with the gentleman from pennsylvania, that the clause under consideration was connected with the mission from toussaint, and the separation of hispaniola from france, or with an intention of dividing the people of that island from their government, he should also be opposed to it; but believing, as he did, that it would be productive of none but good effects to this country, he was in favor of retaining the clause.[ ] it might be well, mr. s. said, to take a view of the relation which had subsisted between france and her colonies for some years back. early in the revolution, santhonax and polverel were sent as commissioners to hispaniola, for the purpose of governing the island, and to carry into effect the decree of the french government for liberating the slaves. they conducted themselves in a friendly manner towards america, but destructively to the northern part of hispaniola, and particularly towards cape francois. the disastrous contest which took place between the whites and blacks, to the destruction of the former, is well known. from the abuse of their power, these commissioners were recalled. polverel had not sufficient courage to appear before the french government, and put an end to his existence. santhonax went to france, and was sent out again to the island. still he was favorable to this country, until the decree of france declared that their vessels of war should treat neutral vessels in the same manner as neutral powers suffered great britain to treat them. santhonax then issued his decree of december, , and american vessels were taken and carried into hispaniola indiscriminately, and unsuspectingly, not under the authority of france, but under the authority of this agent. not content with this abuse of his power, santhonax sent deforneaux, the commissioner of guadaloupe, to the south side of hispaniola, to carry his plans into effect there; but rigaud, a man of color, and an honest man, who had gained the esteem of the people, who was in power there, frustrated the attempt. deforneaux attempted to escape, but was taken and sent to france. we see, therefore, that santhonax made no scruple to set aside the decrees of france; and in this manner has rigaud ever done, repealing and preventing the execution of the decrees of france, whenever he disliked them. and was rigaud punished by france for thus exercising his power or not? no; he was made commander-in-chief of the south side of the island for having sent off deforneaux. hedouville succeeded santhonax in the government, and brought with him the power to execute or not, as he judged proper, the decree of the directory directing the capture of neutral vessels with british manufactures on board. he determined that this decree should not be carried into effect against vessels bound to hispaniola. did he carry his purpose into effect? so far as his (mr. s.'s) information went, he did. here, then, we see hedouville setting aside the decrees of france; and rigaud has not only prevented american vessels from being condemned, but has thrown the captains of privateers into prison for daring to bring in american vessels, and has caused such as have been carried into jacquemel, on account of not having a _rôle d'equipage_, to be delivered up immediately. victor hugues, upon the recall of mr. adet, ordered that all vessels carrying on trade to what he called rebel ports, should be brought in and made legal prizes of. this was another separate authority. he afterwards issued orders for the condemnation of vessels coming into guadaloupe with a supercargo, who should either be an irish or a scotchman, though they had every necessary paper on board to show that they were bound to that port, and vessels were condemned for this alone; and this is not seen in any of the decrees of france. mr. s. understood this clause as intended to meet cases of this kind; and, so far from this being offensive to france, it must be quite the reverse. under this law, said mr. s., the president will be enabled to say to these special agents, "if you will suspend your decrees with respect to your islands our trade shall be opened to you," and by this means give to our citizens a commerce which is a mine of gold to them. such a conduct, he thought, must appear to every one perfectly reasonable. the gentleman from pennsylvania says that the independence of hispaniola would be dangerous to the southern states. but does this bill, said mr. s., contemplate any such thing? does it not say that the agents must be under the government of france? if the island were to declare itself independent, we could not, said he, prevent our merchants from trading with it; or if it should be in a state of rebellion, they would trade with it at all risks, without coming under this act. this bill seems, instead of encouraging the independence of the island, to place an obstacle in the way of it. it promises to the commanding officer the trade of this country, so long as he remains attached to france, and forbears to depredate upon our commerce; but the moment he declares himself independent, that promise is no longer binding. certain words in this clause are complained of; and mr. s. owned he did not like them himself. he meant the words, "shall clearly disavow;" and, if this motion should not prevail, he would move to strike them out. he should be satisfied if the islands refrained from depredating upon our trade, without making any disavowal. mr. s. said he could by no means bring his mind to believe that this clause could give encouragement to the people of hispaniola to rebel against their country. toussaint, said he, is not the only governor of that island. rigaud, who, as he had already stated, is a man of color and a man of excellent character, who has great hold of the affections of the people, and whose attachments are also strong to the french government, has also a considerable share of authority; and toussaint, in his opinion, would not on this account dare to declare the island independent. but suppose, said mr. s., this independence were to take place, would all the danger to this country actually take place which has been stated? in his opinion the reverse would be true. refuse to these people our commerce, and the provisions of which they stand in need, and you compel them to become pirates and dangerous neighbors to the southern states; but, so long as you supply them, they will turn their attention to the cultivation of their plantations. if, on the contrary, they once get a taste for plunder, they will never settle to labor. mr. s. observed that it was the other day said that truth was the characteristic of the federal party. it might be so, though he had found it otherwise; but the characteristics of party, he observed, always is detraction, suspicion, and jealousy, whether it be called this or that. on the present occasion he found jealousy and doubts had intruded on the minds of gentlemen who would, at other times, see very differently. he did not mean to throw any censure upon them on this account, because they doubtless believe themselves right. this party spirit, said mr. s., is every where to be found. the gentleman from connecticut had the other day said that he (mr. s.) had constantly voted against every measure of defence, yet if he would have read the journals, he would have found the reverse the fact. [the chairman doubted whether this was connected with the question.][ ] mr. s. concluded by saying that the more gentlemen think on the subject, the more they will be convinced the bill is not pregnant with the mischiefs which they apprehend. mr. nicholas said it would be difficult to ascertain precisely where truth is to be found; whether in the extremes of party or in a middle course. the gentleman from maryland says party men are always in the wrong; therefore he supposed that gentleman to be of opinion that those who vibrate between two parties are always in the right. in considering this question, he should do it according to his best judgment. if his mind should be so operated upon by party spirit as not to see the truth, it would be his misfortune. he believed, as he had already stated, that this bill, as it now stands, will authorize the president to negotiate with the subordinate agents of a government against the will of that government, and thereby promote a separation between the agent and his government, by holding out a temptation to do certain acts not warranted by the government. the house had been told, by two gentlemen from massachusetts, that this cannot be the operation of the law, because it has no relation to a revolted colony; that when a revolt once takes place, the trade will open of itself, as the territory will no longer be under the authority of france. he wished to inquire into the truth of this doctrine, which one gentleman has asserted and another has endeavored to prove. mr. n. asked if toussaint should to-morrow declare himself independent, would the president be authorized to direct the collector of the customs to consider st. domingo as no longer coming under the present law? in his own opinion, he could not, because it would be contrary to the practice of any other government; and, if done, would give the lie to all the professions made by us on subjects of this kind. when the separation merely commences; when we know nothing of the means which the revolters possess, but because some person chooses to declare a place independent, shall our government interfere and acknowledge such a place independent? he asked whether any gentlemen in this house, who are so frequently called disorganizers, had ever broached a doctrine like this? he knew very well, without the authority of _vattel_, which the gentleman from massachusetts had introduced, that any nation is at liberty to take part in a rebellion; but it is a good cause of war. when a revolution is effected, then the country revolting becomes independent, and any nation may treat with it according to its will. but, if you take part with the revolters, you place yourselves on the same ground with them in respect to the government revolted against. and, said he, in case we give any assistance to any island belonging to france, in its revolt against that government, we place ourselves in a state of war. mr. n. believed gentlemen are wrong in their construction of the present law, when they say if toussaint were to declare himself independent to-morrow, that the executive might immediately consider him so, and direct trade to be carried on with that island as heretofore. he believed the president would not do it, and that the present clause of this bill is founded upon the certainty that he would not. if this is the case, the same objection is in full force against the wording of this section. the gentleman from massachusetts, first up, seems to acknowledge that this law is to have this operation. he, says, st. domingo may become independent, and that therefore it is highly proper we should let them know what dependence they may have upon us; to let them know that they may expect all the advantages of independence. is not this, said mr. n., an acknowledgment of the effect which this law will have? that the moment they throw off the french yoke, they will receive all the assistance from this country which a free commerce can give them? mr. n. thought the gentleman himself inflicted the deepest wound on this bill, for gentlemen cannot say that such an assurance is not a temptation to commit the act. mr. n. could readily believe that the trade of st. domingo is very valuable to this country, and the assertion of the gentleman from maryland, that it is a "mine of gold," had confirmed that opinion; and he was really afraid that that gentleman's representing a commercial part of the country, and being himself deeply engaged in commerce, the importance of this trade may have too much weight in deciding a question of this kind, and be a means of disregarding the evils which may arise from it; but mr. n. was of opinion, that a solid peace would be far more beneficial to commerce generally, than any temporary advantage of this kind. besides, the principle upon which such advantages would be built, is something similar to that which would actuate a man to fall upon the property of his neighbor, because he is richer than himself. but does not the same gentleman tell the house that the powers in st. domingo are pretty equally balanced between general toussaint and rigaud, and that, therefore, if toussaint attempted to establish the independence of the island, there could be no certainty of his success? why, then, said mr. n., should we go into a measure which might produce war between the two countries, when the advantage to be derived from it is so very doubtful? and he thought the danger from the proceeding was heightened by the circumstance which gentlemen have mentioned of there being so very large a body of people in arms there; for, since the powers are so nicely balanced, is it not probable that the government party, in case of a struggle, would have the advantage? and would it not be the height of madness for us to run the risk of having the large force of that island turned against us, in consequence of our improper interference between the colony and its government? mr. n. said, he could not overlook some considerations connected with this subject, which he thought of great importance. it is well known, (and he begged gentlemen who have the same desire to preserve the country in peace that he had, to pause at the suggestion,) that there are many gentlemen in this house who have been long in favor of coming to an open declaration of war against france; and he had every reason to believe that the same disposition yet exists in these gentlemen; but the same opportunity of making this declaration does not now exist. the public mind is not now so well prepared for entering upon a war as it was some time ago, because they believe things wear a better appearance. if then, said mr. n., the same disposition exists for war; if these gentlemen think they or their country will be benefited by war, they may be very willing that france should declare it; and if it be possible that a wish of this sort may exist, it affords a full solution to the meaning of this bill. but we are told, said mr. n., that we ought not to excite the animosity of the people of st. domingo. is our present situation calculated to produce this effect? certainly not, since they are necessarily involved with the mother country; and to take the part proposed, he had already shown might be attended with the most direful consequences. he thought this country ought not to wish for the independence of st. domingo in another point of view. however we may wish to see the naval power of france put down, so that they may not have it in their power, if they have the wish, to invade this country, it is highly important to us that the naval power of europe should be divided. he did not think that it could be for the interest of this country that great britain should have a navy which should keep the world in awe, and subject it to her views; and if we assist in destroying the colonies of france, we shall be the means of throwing them and their naval power into the hands of great britain. he did not know that it mattered much to us whether st. domingo was a colony of france or england, only as it would add to the naval strength of england. he hoped, therefore, the motion for striking out would prevail. mr. pinckney observed, that so much had already been said on this subject, and the general principles of the bill had been so ably defended, that it would be unnecessary to make more than one or two remarks in reply to the gentleman from virginia. that gentleman had gone altogether upon the idea of this bill being of so obnoxious a nature to the government of france, that it must be considered by that government as a cause of war. he thought it had already been shown, that the gentleman was altogether mistaken; and, very unhappily for his position, our own experience was sufficient to determine whether it has ever been considered as a cause of war for neutral countries to trade with colonies revolting from a mother country. we know, said he, very well how neutral nations conducted towards us in our revolt from the government of great britain. mr. p. believed it was never understood that any nation with whom we traded was, in consequence, involved in war with great britain. the fact was otherwise. it was never so looked upon by that country, and gentlemen will admit that that government was at least hightoned enough. all that great britain did was to seize the vessels whenever she could lay hold of them; and this is the risk which the gentleman from maryland mentioned our traders would run in carrying commerce into any place in a state of revolution. it is well known that we endeavored, during the whole course of our war, to draw foreign commerce to this country, which was found necessary in order to enable us to carry on the war. agents were employed for this purpose, and we saw no moral turpitude in this. and during the time that holland was separated from the dominion of spain, was war declared in consequence of any nation trading with holland? the case was so different, he recollected that holland declared, that she would seize all vessels going to spain, though that had heretofore been considered as the mother country. this was reversing the case. with respect to the three points stated generally by the secretary of state, they are not said to go to the point for which the gentleman from virginia has taken them. with regard to the _douceur_ of £ , , mr. p. would say, that if we believe this attempt to have been made to extort this sum of money from our envoys, for corrupt purposes, (and notwithstanding all that has been said on the subject, he did believe that x and y were the agents of the french government in that transaction, and which has, indeed, been acknowledged by y, mr. bellamy, of hamburg, who declares he has never written or said any thing to our envoys, but by the direction of the secretary of foreign affairs,) no reliance ought to be placed upon any of their declarations; for after such an act, it may be supposed they will say one thing at one time and another at another; and no reliance could be had upon any thing which comes from so corrupt a source. mr. p. said he would not trouble the committee longer, except in one point, and that was as to the consequences which might flow from a declaration of independence on the part of st. domingo. he should endeavor to answer the gentleman from pennsylvania as to the consequences which it might produce to the southern states. it was a subject to which he had paid all the attention in his power. he did, on all questions, endeavor as much as possible to divest himself of any thing like party spirit; but in this case, where he had himself so much at stake, in which his native country and every thing dear to him was concerned, his sincerity could not be doubted. mr. p. did not himself believe that this bill would have the least tendency to procure the independence of st. domingo; but as some gentlemen think it is probable that this may be the result, and as no one could say with certainty what the effect of any measure would be, he had considered the subject, and was clearly of opinion, that should the independence of that island take place, the event would be more advantageous to the southern states, than if it remained under the dominion of france, considering the disposition which france has evinced towards us, (and of which he saw no prospects of a change,) and the present conduct of the inhabitants of st. domingo. nothing which we can do, said mr. p., can bring back the internal state of that island to the state it was formerly in. considering the inhabitants, then, in the light of freemen, whether will it be better for us, in the southern states, to have to deal with them, as such, or under the direction of the french government, unreasonable and arbitrary as we have found it? he had no hesitation in saying, that, it would be more for the safety of the southern states, to have that island independent, than under the government of france, either in time of peace or war. if our dispute with france should not be accommodated, and they keep possession of st. domingo, they could invade this country only from that quarter. there is there a large body of troops, and their unofficial agents told our envoys, that in case we did not submit to their conditions, we might expect an attack from that quarter. it would certainly lessen the danger from that island, were it to be separated from france; but remaining in the hands of france, and supported by the powerful navy of france, notwithstanding all the vigor we have shown on the ocean, we might be very much annoyed from thence. if these people in st. domingo find that we withhold from them supplies which are necessary for their subsistence, said mr. p., though they are friendly disposed towards us, they will look elsewhere for support; they must either turn their attention to cultivating their land, look to great britain, or become freebooters. which situation is it most for the interest of the united states that they should be in? surely the peaceful cultivation of the ground; and to induce them to take this course, it will be our interest to supply them with what they have occasion for, lest they should get the habit of freebooters, and make our commerce the object of their plunder. he hoped, therefore, the motion for striking out would not prevail. mr. macon had no doubt the gentleman from south carolina had paid particular attention to this subject. it was to be expected that every gentleman from the southern states would pay attention to it. in one respect, he was precisely in the same situation with the gentleman from south carolina. he lived in a country that would be affected by any event, such as had been mentioned, and all his connections were there. it was the same with all other gentlemen from the southern states. he differed in opinion, however, when the gentlemen said that we should have less to apprehend from st. domingo, in case it should become independent, than whilst it remained a part of the french republic. he believed the state of society to be such in that country, as not to admit of self-government. in case they separate from france, he should apprehend that the consequence will be, that instead of being ruled by one of the european powers, they would become the tools of them all, in turn, and we should probably have the same game played off upon us from thence, that we have heretofore had played upon us by means of the indians. mr. m. said, that although the part of the bill moved to be stricken out, does not go directly to say that it has reference to st. domingo, it is a little extraordinary that no other case will fit it. there could be no doubt, if the island became independent, we should have a right to trade to it; but he believed it would puzzle gentlemen to find an instance of a legislature passing a law in order to fit a case which might happen. as he thought it improper, he hoped it would be stricken out. mr. goodrich said this amendment went to change the principle of the bill. the bill goes upon the idea that when any island in the west indies shall cease to make depredations upon our commerce, our trade shall be opened with them, without regarding by what authority or force the change was effected. the matter is not placed upon the ground of any treaty whatever; for, said mr. g., we can neither increase nor diminish the power of the president in this respect. a great deal of mist has been thrown on this subject. the effect of this amendment will be, that the person restraining from depredations upon our commerce must act under the authority of the french republic; on the contrary, the friends of this bill wish not to examine by what authority the thing is done, provided that it be done. we have a right to say that our vessels shall go to any port we please; but, according to the doctrine of the amendment supposing the island of st. domingo was conquered, we could not send our commerce there, nor could we send it to a place in rebellion; so that our commerce was to be affected by every change of circumstances which might take place. he hoped the committee would recognize no principle which shall say we have not a right to send our commerce wherever we please, whether the places to which our vessels go are in war, peace, or rebellion. mr. gallatin was astonished to hear the gentleman from connecticut say that this is merely a commercial question. let us, said he, examine the effect of this amendment. we are told that the provisions of this bill do not extend to any colony which may be conquered; for instance, to st. martin's, st. lucia, or any other colonies which have been conquered. let us see, then, how it will apply if this amendment is rejected, and whether the question is commercial or political. let us inquire, said he, what is the case provided for, if the amendment is rejected, and which is unprovided for if it is adopted, and it will then appear what ground is covered by the opposers of this amendment. if rejected, it will result, that all persons who may claim or exercise any command in any island, &c., although they have not that command under the government of france, and who shall refrain from privateering, shall be entitled to a free trade with this country. the only case is a case of insurrection and rebellion. suppose, said mr. g., i should agree with the gentleman from connecticut, that if once a rebellion takes place, or any colony shall declare itself independent, (but, by the by, the doctrine is not countenanced by the law of nations,) that we may trade there as we please. does it result that we have a right to pass a law beforehand to contemplate such an event? if we do, it will be speaking publicly, thus: "if any persons shall, in any island, port, or place, belonging to the french republic, raise an insurrection, and declare themselves independent, and shall be found to refrain from committing depredations upon our commerce, we will open a free trade with them." and yet the gentleman from connecticut calls this a mere commercial question. the committee have been told of a number of cases which he had been astonished to hear--cases which happened in our war. gentlemen who have mentioned these have not attended to any of the facts of the war. mr. g. referred to the case of the treaty made in holland, which has already been explained in a former debate. mr. g. said, gentlemen might put what construction they pleased upon this section; but certainly publicly to tell the french colonies that if they will rebel against their government, and restrain from depredating upon us, we will treat with them, is to invite them to do it. a declaration of war has always been the consequence of such a conduct in other countries; and he supposed gentlemen are not ready for a declaration of war, though they tell us there is no change in our affairs for the better; that negotiation is at an end; that no idea can be entertained of the sincerity of any professions of the french; and not being ready to bring in a declaration of war, they are not surely ready to make it, or provoke it; and if not, why assume a principle that may have this effect? he hoped the amendment would be agreed to. the committee now rose, and had leave to sit again. thursday, january . _death of mr. tazewell._ a message was received from the senate, informing the house that henry tazewell, esq., one of their body, died this morning, and that they had directed orders to be taken respecting his funeral. afterwards, on motion of mr. dent, the house came to the following resolution: _resolved_, that this house will attend the funeral of henry tazewell, esq., late a member of the senate of the united states, on to-morrow, at half past four o'clock.[ ] _intercourse with france._ the house again resolved itself into a committee of the whole, on the bill further to suspend the commercial intercourse between the united states and france, and the dependencies thereof, and for other purposes. mr. spaight's amendment being under consideration, mr. hartley said the general policy of this bill had been considered at the last session; and he had no doubt, that when any parts of the french dominions cease to depredate upon our commerce, we might, with propriety, open our intercourse with them. if, for instance, the isle of france had fitted out privateers, and depredated upon our commerce, and chose to forbear to do so in future, and leave our passage to the indian seas clear, it would be a good reason for opening our commerce with that place. the case of st. domingo is still stronger, and has, as has been shown, the power of doing as much mischief, should we refuse to furnish them with the necessary supplies. if they call in their privateers, therefore, it would certainly be right to open our intercourse with that valuable island, especially since they appear to be abandoned by france, who has withdrawn all her troops from the island. after some other observations, mr. h. concluded with hoping the amendment would not be agreed to, as it would only tend to embarrass the bill, by making it necessary to ascertain the legality of the governing authority of the places with which we might open our intercourse. mr. brace was opposed to this amendment, as it came round to the same point with that which the gentleman from pennsylvania had proposed. it struck him that, in the course of the debate, gentlemen have forgot the ground on which we stand. our treaties with the french government have been declared void, on account of the conduct of that government. we have proceeded further, and suspended all commercial intercourse with france and her dependencies. it would be well to consider what kind of connection now exists between the united states and france, and whether a measure of the kind proposed can injure our present prospect of peace. by the arguments of some gentlemen it would seem that we are under some obligation or contract to that government; whereas, we ought to consider ourselves, with respect to it, in no other light than we consider ourselves with respect to the governments of the world with which we have no connection. we have, therefore, no object to pursue, but what, in a dignified national view, it is our duty and our interest to pursue. this separation having been effected by the wrong acts of the french government, she can have no claim upon us; we have taken our stand upon such ground as can always be justified, whenever a spirit of justice shall return. there is no man, said mr. b., in the house, who does not wish for peace, whenever it can be obtained on a solid foundation. but it was well observed yesterday by his colleague, (mr. goodrich,) that this question is wholly a commercial one. this declaration gave offence to the gentleman from pennsylvania. he was surprised that any one could suppose this to be the case. mr. b. said he was equally surprised at the arguments of that gentleman. what connection had we with the french government? or what connection had we with, any other, besides commercial? he had heard much clamor out of doors about other connections--about treaties offensive and defensive. he hoped no such connexion ever would exist between this country and any nation whatever. mr. spaight said, he wished to have given the reasons which induced him to make this amendment yesterday, but a motion being made for the committee to rise, prevented him. having been a member of the committee who formed this bill, and having given his consent to it, he trusted it would not be believed that he brought forward this motion to defeat the bill; his object was to make it more palatable to many gentlemen, who, if an amendment something like the present was not adopted, would vote against the bill. the gentlemen from massachusetts and connecticut have said, that if this amendment is adopted, it will destroy some of the most important principles of the bill. he believed they had mistaken the effect of the amendment. they state that it will be necessary for the president to inquire whether the commander of any island with which he was about to open our intercourse, had his authority from the french government? on the contrary, it appeared to mr. s. that, so long as the citizens of any island acknowledged france as the mother country, whatever authority may exist there, the place must be under the government of france. if an open rebellion took place, it would alter the case entirely. and if conquered by any of the belligerent powers, it would not then come under the bill; so that, in either case, the amendment could have no bad effect. the principal motive with him for moving the amendment was, in order to take away the objection made to it by many gentlemen, that the bill is calculated to produce the independence of st. domingo; for he himself had no such view, nor did he think any other member of the committee, who reported the bill, had. he believed, if the wants of these people are supplied from this country, it will be better that they should remain under the government of france; but, if we refuse to supply them with provisions, they may act as freebooters, or do still worse--throw themselves into the hands of great britain, in order to procure supplies. these reasons had induced him to make the amendment, and he should be glad to see it adopted. mr. champlin could see no difference between this and the former amendment, which had been negatived. the design of this section is, to authorize the president to open the intercourse with any of the islands and the united states, whenever he shall deem it consistent with the honor and dignity of this country, without inquiring whether such place is under the french government. frequent decrees are passed in france, said mr. c., for revoking the commissions of these officers, which are not enforced; and yet, if this amendment is passed, such a person could not be treated with, and it would always be difficult to ascertain whether an officer acted under the french government or not. if the islands choose to cease from their depredations, he would openly trade with them; for the intercourse was originally suspended, not with a view of starving the islands, but to prevent depredations being committed upon our commerce. he was astonished to find that nothing could come before this house, but gentlemen are ready to object to it on account of the effect it may have on france. for his part, if the measure be beneficial to this country, he cared not what effect it might have upon france. it was said this provision would have a tendency to provoke insurrection, or the independence of the island; on the contrary, he believed, if this law does not pass, they will throw themselves into the hands of great britain, or become plunderers of our property. he hoped to see the intercourse opened, not only with st. domingo, but with the isle of france. mr. harper said, when this amendment was first made, he considered it as making no considerable change in the section, and was, therefore, inclined to vote for it; but the gentleman from massachusetts, (mr. varnum,) of whose discernment he had a very high opinion, having said that he considered it as making a very considerable change in the section, and declaring that he would, on that account, vote for it, he was induced to take a further view of it, and he found, upon reconsideration, that it would, indeed, make a very material change in the section, and because he found this would be the case, he must vote against it. mr. gallatin said, it appeared to him that this amendment goes no further than to prevent any stipulations with persons who have usurped the power of a country. it was yesterday stated by the gentleman from massachusetts, and repeated to-day by the gentleman from north carolina, that it did not extend to cases where men's commissions are doubtful. if a man has once held a commission as an agent in any french colony, he may be recognized as their agent, so long as he has not been publicly declared to be otherwise. his exercising the power will be sufficient proof that he has it; and, unless this principle is admitted, it must be evident that the bill is intended to operate in favor of revolters. there is a great difference, said mr. g., between this amendment and the one which had been moved by the gentleman from virginia, the gentleman from new york, or that which he had himself moved. it was the opinion of the gentleman from virginia, and it was his also, that the president ought not to be authorized to open a trade with st. domingo, unless the constituted authorities of france had disavowed their former aggressions, and refrained from them; they did not think it right to permit a trade with particular parts of the possessions of france, considering that the measure was originally taken to distress the french government, and bring it to terms; but this section gives the power of opening a partial intercourse with st. domingo, though the government of france should not disavow any of her former illegal acts; and the present amendment only proposes to except cases of insurgency. nor could he see what possible objection can be made to it, except that it will prevent a lure from being held out to promote the independence of st. domingo; for in nothing else does the amendment differ from the bill as it now stands. if we are to hold out this lure, said mr. g., it must be because we have the right, and it is our interest to do it. when he asserted we have not the right to do it, he would remark upon the word "right." gentlemen say we have a right to do this, because we are an independent nation. no doubt. but when he said we have not a right to do it, he meant that we could not do it without infracting the law of nations, or those rules which we have declared ought to govern every nation. and though the gentleman from connecticut has said that there is no connection of a political nature between us and france, and therefore considers this as merely a commercial regulation, mr. g. said, he has mistaken his meaning, by making use of the word "connection" instead of _relation_. we have no connection, either commercial or political, with france; but we stand, as a nation, in a political and commercial relation with france and other nations. there is no connection between us, but there is the same relation, both political and commercial, that there is between all other nations. and, said mr. g., it is, doubtless, an infraction on the law of nations to offer any lure, or promote the independence of a colony. we certainly have a right to give assistance, in case of a rebellion, by running the risk of becoming a party in the war, but not without infracting the law of nations; still less could we do it without breaking that morality in politics, the breach of which we have so often complained of. we may suppose the government of france radically wrong, and the people exercising it corrupt, but neither would justify the overturning, or holding out any encouragement to others to overturn, the government of any part of her dependencies. a conduct of this kind could only be justified in time of war. in this country, in our speeches, at least, we have gone further, and said that, even in case of war, it would not be right to sow the seeds of insurrection; for, on what other grounds could we account for the philippics which have been pronounced on this floor against france, for her conduct not only against countries with whom she was at peace, but also against those with whom she was at war. this was the case with respect to all the charges made against france with respect to holland, or the milanese (now cisalpine republic) with whom she was at war when the attempts condemned were made. but we have said, war is at best an unfortunate state, and it is not right to heighten its evils by exciting insurrections and commotions. if this principle is right, and mr. g. believed it correct in most cases, it is clear that we shall not be justified in promoting insurrections, even in war, much less in this state which is a state of hostility, but not of war. notwithstanding the respect which he paid to the opinion of the gentleman from south carolina (mr. pinckney) he could not be persuaded that the independence of st. domingo could be a desirable object. to-day, it had been avowed, in what fell from his colleague, (mr. hartley,) that this was the ground upon which the clause was founded, all the french force being withdrawn. he gave credit to the candor of his colleague for the declaration, and it was in this point of view which he had always considered it, because he had stated that, no doubt, an agent from that quarter had come with propositions to our government. mr. g. repeated some of his former reasons against the policy of promoting the independence of st. domingo. he heard the gentleman from rhode island, with regret, repeat one of those illiberal ideas that had been so frequently introduced here, by saying that gentlemen seemed opposed to this measure, because it would be injurious to france. mr. pinckney wished to make a single observation upon what fell from the gentleman from pennsylvania. in order to defeat all that has been said about this section holding out a lure for the establishment of the independence of st. domingo, it need only be said, that it is confined to the colonies which are under the jurisdiction of france. the language of this clause is, "so long as you continue dependent, we will treat with you." mr. nicholas explained. mr. sprague observed that the gentleman from pennsylvania insisted upon it, that, without this amendment, this bill would hold out a lure to insurrections in st. domingo, and that if gentlemen did not wish to encourage these, they must agree to the amendment. what is this encouragement? it is, "if you will forbear committing depredations, which we have heretofore experienced from you, we will open our trade with you." then, according to the gentleman's reasoning, acts of hostility against the commerce of this country, are favorable to france; or rather, ceasing to commit them is an act of rebellion against the mother country; and, to hold out a lure on our part, to stop these depredations, is so contrary to the views of france, as to give a high offence to that country. mr. mcdowell remarked, that gentlemen opposed to this amendment, all agree that the section, as it stands, holds out no lure to insurrection in the french west india islands; if not, why should they object to this amendment, which is only calculated to make certain what is at present doubtful to some members. he wished gentlemen to consider what might be the consequence of authorizing the president to treat with unauthorized persons. gentlemen have stated, and he supposed truly, that the trade of this island of st. domingo is a gold mine to the merchants of this country; and he was afraid that the richness of this trade had too much attraction to be resisted by those concerned in it, though it might be dearly purchased by the nation at large. he differed widely in opinion from the gentleman from south carolina, with respect to the effect which the independence of that island would have upon this country; he believed it was by no means a desirable event to this country. mr. j. williams did not intend to have said any thing on this subject, as it is principally a commercial concern, of which he knew but little; but he also conceived that the agricultural interest is connected with it. gentlemen are afraid more is meant by this bill than meets the eye; they are afraid to take a worm or a fly, lest a hook should be concealed in them. instead of war, he thought this bill calculated to promote peace. it is admitted, on all hands, said mr. w., that hispaniola cannot support itself. how must they, then, get support? either we must supply them, or they must depend upon neutral islands, or the people must bend their whole force upon our commerce. what, said he, is most prudent to do? he thought the regulation proposed by this bill the best that could be hit upon. but the gentleman from virginia said we are obliged to send our tobacco through spain to france; is this, said he, an advantage to the people of this country? it may be presumed, mr. w. said, that the president will go no further in this business than the interest of the country requires. this jealousy of the president has a bad effect; because from a want of confidence in this officer, he will be unable to do any thing for us. he hoped the amendment would not be agreed to. it was negatived-- to . monday, january . _intercourse with france._ the bill further suspending our commercial intercourse with france and her dependencies, and for other purposes, having been read the third time, mr. allen moved for a recommitment of the bill in order to have expunged a proviso introduced by the member from tennessee, excluding the port of new orleans from its operation. he stated his reason to be, that he did not believe that was likely to be a rendezvous for french privateers; but that, if it should be, it ought to be liable to the same restrictions with other ports; and, if it was not likely to become a harbor of privateers, to insert a proviso of this kind, was to show a distrust that the president would not exercise the power given to him for the interest of the united states. this motion was seconded by mr. otis, and opposed by messrs. venable, nicholas, s. smith, w. claiborne, and harper. it was negatived, the yeas and nays being taken-- to . the question on the passing of the bill was then taken, and stood, yeas , nays , as follows: yeas.--john allen, george baer, jun., bailey bartlett, james a. bayard, jonathan brace, david brooks, stephen bullock, christopher g. champlin, john chapman, james cochran, william craik, john dennis, george dent, william edmond, thomas evans, abiel foster, dwight foster, jonathan freeman, nathaniel freeman, jun., henry glenn, chauncey goodrich, roger griswold, william barry grove, robert goodloe harper, thomas hartley, william hindman, hezekiah l. hosmer, james h. imlay, john wilkes kittera, samuel lyman, james machir, william matthews, daniel morgan, harrison g. otis, isaac parker, josiah parker, thomas pinckney, john reed, john rutledge, jun., james schureman, samuel sewall, william shepard, thomas sinnickson, samuel smith, richard dobbs spaight, peleg sprague, george thatcher, mark thompson, thomas tillinghast, john e. van allen, peleg wadsworth, robert waln, john williams, and robert williams. nays.--abraham baldwin, david bard, thos. blount, richard brent, robert brown, samuel j. cabell, thomas claiborne, william c. c. claiborne, matthew clay, john clopton, thomas t. davis, john dawson, joseph eggleston, lucas elmendorph, william findlay, albert gallatin, james gillespie, andrew gregg, john a. hanna, carter b. harrison, jonathan n. havens, joseph heister, david holmes, walter jones, edward livingston, matthew locke, nathaniel macon, anthony new, john nicholas, thompson j. skinner, william smith, richard sprigg, abram trigg, john trigg, philip van cortlandt, joseph b. varnum, and abraham venable. _french affairs._ the following message was received from the president of the united states. _gentlemen of the senate, and gentlemen of the house of representatives:_ an edict of the executive directory of the french republic of the twenty-ninth of october, , inclosed in a letter from our minister plenipotentiary in london, of the sixteenth of november, is of so much importance that it cannot be too soon communicated to you and to the public. john adams. _january , ._ _extract of a letter from rufus king, esq., minister plenipotentiary of the united states at london, to the secretary of state, dated november , ._ "the annexed arrêt would appear extravagant and incredible, if it proceeded from any other authority; but mankind is so accustomed to the violence and injustice of france, that we almost cease to express our surprise and indignation at the new instances that she continues to display." [translation.] _decree of the executive directory, of october , ._ the executive directory, upon the report of the minister of foreign relations, considering that the fleets, privateers, and ships, of england and russia, are in part equipped by foreigners. considering that this violation is a manifest abuse of the rights of nations, and that the powers of europe have not taken any measures to prohibit it. decrees: st. every individual, native (_ou originaire_) of friendly countries, allied to the french republic, or neutral, bearing a commission, granted by the enemies of france, or making part of the crews of ships of war, and others, enemies, shall be by this single fact declared a pirate, and treated as such, without being permitted in any case to allege that he had been forced into such service by violence, threats, or otherwise. d. the executive directories of the batavian, lagurian, cisalpine, and roman republics, shall be instructed to this effect. d. the provisions contained in the first article shall be notified to those powers which are neutral or allied to the french republic. th. the ministers of exterior relations is charged with the execution of the present arrêt which shall be printed in the bulletin of the laws. (signed) terilhard, _president_. the message and documents were read, and ordered to lie on the table. tuesday, january . thomas sumter, from south carolina, appeared and took his seat in the house. friday, february . john fowler, from kentucky, appeared and took his seat in the house. _remonstrance of georgia._ on motion of mr. baldwin, the house resolved itself into a committee of the whole on the report of a select committee on the petition and remonstrance of the legislature of georgia; and the resolution reported by that committee being under consideration, its adoption was opposed principally by mr. allen. mr. nicholas thought the following resolution would be less exceptionable than the one reported, and it was agreed to-- votes being in its favor. "_resolved_, that provision ought to be made by law for complying with such treaty as the president of the united states may think proper to make with the creek indians, and for obtaining possession, in behalf of the state of georgia, of the lands lying within the country of tallassee, or other lands on the frontier of the said state, which may be deemed equivalent thereto, and that ---- dollars be appropriated therefor." the committee rose, and after some further remarks from mr. allen, the resolution was concurred in-- votes being in its favor. it was then referred to the select committee to report a bill. the house adjourned to monday. thursday, february . _augmentation of the navy._ on motion of mr. josiah parker, the house resolved itself into a committee of the whole on the bill for the augmentation of the navy, and fixing the pay of the captains of ships or vessels of war; when the first section being under consideration-- mr. gallatin moved to strike out the words "six ships of war, of a size to carry, and which shall be armed with not less than seventy-four guns each; and these shall be built or purchased within the united states;" in order to take the sense of the committee on the propriety of building, at present, ships-of-the-line. when this subject was last year before the house, the general opinion was, that during the present war, considering the crippled state of the french navy, frigates and vessels of a smaller size, were sufficient to protect our vessels on our own coast, and in the west india seas; nor did that opinion seem to have undergone any material alteration; for, although the secretary of the navy, and the select committee, had reported that the expense of building the six seventy-four gun ships now proposed, would amount to $ , , , yet the appropriation asked for the present year was only one million of dollars. it was not expected that much more than one-third of the work necessary to send those ships to sea, could be executed during the present year. it was not expected that they could be finished in less than two or three years. they were not wanted for any immediate purpose. the proposed measure was not therefore a measure of defence. it was a project of a general nature. the question is, whether it be proper, at the present time, to lay the foundation of a navy, of a fleet, that might be able, hereafter, to give us a certain weight in relation to european nations; which might be able to cope with the fleets of those nations: and it was in order to bring that question fairly before the committee of the whole that he had made his motion. should that motion prevail, it would not affect the building of the six sloops of war which were said to be immediately wanted, in addition to our present naval force, for the purpose of protecting our commerce. it would merely prevent the building, at present, of a fleet which was supposed, by the friends of the bill, to be wanted only for future purposes. this led him naturally to consider the expense of that navy. it is stated by the secretary of the navy, that the annual expense of a -gun ship will exceed , dollars, and that therefore the annual expense of six of these ships will be about , , dollars. that the building and equipping a -gun ship, exclusive of military stores, will be , dollars; and that the military stores will cost , dollars; so that the first building and equipping six of these vessels will cost about , , dollars. this is the first expense, but nothing is said of the yearly repairing and building which will be necessary to keep up a fleet of this kind. it is estimated, in the navies of europe, that a ship-of-the-line will last from to years; so that, besides ordinary repairs, the whole expense of building would have to be renewed every or years.[ ] it would have been desirable, and it might have been expected, that the select committee should have laid before the house an estimate of the peace establishment of a navy to the extent proposed, in order to have enabled the house to have formed a just opinion on the main question. this they have not done; but supposing the other estimates to be perfectly correct; supposing that the expense would not overrun the calculations laid before the house, and, if so, it would be the first time it had not done it; supposing, according to those calculations, that a -gun ship will hereafter cost us less than two-thirds of what -gun frigates have heretofore cost us; it results, that the first necessary expense (including $ , for docks and timber) will exceed, for six ships only, two millions and a half of dollars; and that the annual expense of supporting them, when in commission, exclusively of annual repairs, and of building new ships, necessary to supply those that from time to time will become unfit for service, will amount to , , dollars. if these premises are true, and he knew they could not be contradicted, the conclusion must be most forcible that it is improper at present to build a navy, especially since there is no immediate demand for it. but if once the foundation of a large navy is laid, no one can say where it will stop. the secretary of the navy does not suppose that six -gun ships will be sufficient. he supposes twelve necessary; six are now proposed merely as an entering wedge. and when once twelve ships-of-the-line are obtained, if our commerce and coast, extensive as they are, must be effectually protected, these will not be deemed sufficient. he drew this conclusion from the naval force of european nations. our tonnage exceeds that of any european nation, except great britain and holland; and if we must have a navy to protect our commerce, it must bear some proportion to the extent of our coast, to the amount of our tonnage, and to the navies of the european nations. and upon what terms are we to cope with the powers of europe with respect to any navy? it would be recollected that when last year there was a mutiny on board the british fleet, in order to put an end to it, the sailors' wages were advanced to one shilling sterling per day, equal to thirty shillings sterling, or six dollars and two-thirds per month, whilst we give our seamen seventeen dollars a month, so that we pay nearly three times as much for men to supply our navy, as england does. mr. g said, he would not detain the committee longer at present, though he meant to have made some observations with respect to the expense of navies to those nations who support them in order to show that the expense of them far exceeds the benefits derived from them. if reference were had to european nations, it would be found, mr. g. said, that navies were used more as engines of power, than as a protection to commerce. even with respect to great britain, which is the only nation which has succeeded in effecting any material object by a navy, though she has obtained a preponderancy at sea, and has been mistress of it for the last hundred years, yet it has been the means of involving her in almost continual war, and the support of it has always been attended with enormous expense. he believed he was correct, when he stated that from to , the average expense of the navy of great britain (including a period of seven years of war and six of peace) was six millions of pounds sterling a year. now, said mr. g., if we calculate the rate at which we shall be obliged to pay for every thing appertaining to a navy, what will be the sum necessary to support a navy of any extent here? suppose a navy should only be one-tenth part of the british, and instead of ships-of-the-line, we should be content with twelve. the expense, according to the british rate of expenditure, would be £ , sterling, nearly three millions of dollars a year; but when we know that we pay three times as much for our seamen as they do, it is impossible precisely to calculate what the expense would be. in relation to european nations, it would be found, that none had ever derived any advantage from a navy, except great britain. it has been said (and by high authority) that an extensive commerce cannot be maintained without a navy. in answer to this it may be said, that spain has always had a considerable navy, but very little commerce; their tonnage compared with ours was insignificant, yet theirs is the third navy in europe. holland, for a time, had a powerful navy; but they gave it up, as more expensive than beneficial, since the wars of queen anne. yet their commerce, on this account, never diminished in any considerable degree. they are the second commercial nation in europe; and they never suffer for want of a navy, except when they become a party in war; he conceived, therefore, that a navy is not necessary to protect commerce. at this time, mr. g. knew that the commerce of holland was in a great degree annihilated; but so was that of france and spain, notwithstanding their powerful navies. holland being at the door of great britain, may, in time of war, be altogether blocked up by the fleets of that nation. fortunately that was not our situation. mr. g. concluded by saying, that as he believed commerce might exist independently of a navy; that a navy would cost far more than it would ever benefit the country; and knowing our finances were not such as to admit of the expense, he must hope his motion would prevail. friday, february . _augmentation of the navy._ the house then went into committee of the whole on the bill for augmenting the navy, mr. gallatin's motion for striking out what relates to -gun ships being under consideration. mr. josiah parker hoped this amendment would not be agreed to. he was happy to find, however, that the gentleman from pennsylvania did not go farther, and oppose the whole force, as he had heretofore always opposed every thing like a navy. indeed, he has acknowledged that our infant navy has done some service, though he does not give to it all the credit which the committee who reported this bill thinks it deserves. he attributes the fall in insurance to other objects than the navy, because he says it has fallen more on vessels to europe, where our navy could have had no effect, than to the west indies, where that effect was more likely to be produced. but the gentleman should have recollected that the fall to europe may have been occasioned by the vigilance of the british navy; but in the west indies, the british, or at least the officers of the british men of war, seemed rather to countenance, than prevent, the depredations of the french; as, in many instances, they have suffered captures to be made by the french, and immediately afterwards recaptured the vessels, and by that means obtained a salvage upon them. nor did he suppose the british government would regret these depredations, since they knew such treatment would serve to rouse the resentment of this country against her enemy. mr. p. supposed that the saving produced by our navy had even been greater than the committee had supposed, as, by the report made yesterday on the subject of our exports, it appears they have been ten millions more than the committee calculated them at. he allowed that our navy had not been the sole cause of safety to our commerce; the british navy had also contributed greatly to it. but it would be recollected that when this navy was first fitted out, french privateers and picaroons were not only upon our coast, but in our very bays; and, but for these measures, there can be no doubt, but our shores would at this time have swarmed with french privateers, which the british would have suffered, in order to widen the breach between the two countries. mr. p. hoped when the quantity of shipping, and the number of seamen we employ, is considered--that these are the means of bringing us from foreign countries all that we desire to have from thence, and that they thereby fill our treasury with money--gentlemen will not hesitate to allow our commerce a competent protection. no nation, except great britain, exceeds this country in the number of vessels and men engaged in this service, yet no nation has done so little to protect them. he trusted we should be allowed to have a sufficient navy to protect our commerce and coast, and to cause us to be respected abroad. the british government, mr. p. said, has sail-of-the-line, (according to steele's list, which he had lately seen,) and these, according to the opinion of the first statesman and politician that england ever possessed, lord chatham, require as many thousand seamen; not that each vessel requires men, but it is necessary to have this number in order to employ their frigates and sloops of war, not that the ships of the line require men; yet, though britain has this immense navy, she has not double the number of merchant vessels and seamen which this country possesses. if, said mr. p., these six -gun ships and six sloops are agreed to, we shall not want more than , seamen to man our navy. at present we have only , ; and the whole annual expense will be , , dollars. mr. p. believed, in order to give us efficient protection, we ought to have eleven sail-of-the-line; but as he considered six to be as many as our present finances will allow, he should be satisfied with that number. the gentleman from pennsylvania wished to be informed as to the expense of a peace establishment of our navy. a large navy in time of peace would be unnecessary; he should wish it, however, to be kept on a respectable footing. many of our ships, mr. p. said, will last much longer than the gentleman from pennsylvania had supposed; some of them, he doubted not, would last forty or fifty years. the british have ships which have been in service thirty years; when poorly built they may not last more than seven years. he had not made an estimate of what would be the expense of a peace establishment with respect to the navy; nor did he know what force the president of the united states might think it necessary to maintain in time of peace, but he supposed it would be small, and a single officer and thirty men would be sufficient to take care of a ship where she is laid up in ordinary: that only a few of the best ships would be kept, and the others sold. the gentleman from pennsylvania had represented the expense of a navy in this country as being much greater than in england; but when he spoke of the pay of british sailors being only one shilling sterling a day, he was certainly mistaken. they have at least a guinea and an half a month, which is seven dollars; and ours average fourteen dollars, which is double to that of england. if the same means were taken here that are taken in england, of raising men by means of press-gangs (which, however, he rejoiced never could be suffered in this country,) they might, perhaps, be gotten on easier terms, as the government might follow the example of great britain, by fixing the pay and pressing the men. he would much rather pay higher wages; especially when it is considered that a very small part of the money paid to seamen will ever go out of the country; they spend their money freely, and the united states will not, therefore, lose it. and as to the number of men employed in the navy, if they were not thus employed in our own service, they would go abroad, since this is the employment they choose; indeed, if all our citizens were employed in cultivating the ground, our produce would be so great, and sell for so little, as to make it scarcely worth the trouble of raising. and if we do not provide for our own defence, we shall be at the mercy of every foreign power which chooses to insult or ill-treat us. the interests of commerce and agriculture must always go hand in hand; and farmers who now get so much better a price for their product than they heretofore got, ought to be the first in supporting a navy sufficient to protect our vessels in carrying that produce to foreign countries. when they see their interests more clearly, mr. p. trusted they would, like the gentleman from pennsylvania, be ready to allow that our navy is of service. it would be happy for us, and for the world, mr. p. said, if there were no use for navies, and nations might be permitted to carry their productions wherever they pleased without annoyance; but, while nations continue to make war upon each other, we must expect to come in for our share of the evils of such a system, and it will be necessary to have some force not only to guard against injuries, but to keep foreign belligerent nations in check, lest we should throw our force into the scale against them. the french directory, said mr. p., have lately passed a decree, which ought to be considered as a declaration of war against the world, "that the citizens of neutral countries found on board of any of their ships shall be considered and punished as _pirates_!" where is the man, exclaimed he, who will not defend his country and his fellow-citizens against such a decree? mr. p. said he would take the liberty of quoting the authority, on the subject of a navy, of a gentleman who deservedly ranked high in public estimation, and whom he was proud to call his countryman. the authority he referred to was mr. jefferson's notes on virginia. he read the following extract. "but the actual habits of our countrymen attach them to commerce. they will exercise it for themselves. wars, then, must sometimes be our lot; and all the wise can do, will be to avoid that half of them which would be produced by our own follies, and our own acts of injustice; and to make for the other half the best preparations we can. of what nature should these be? a land army would be useless for offence, and not the best nor safest instrument of defence. for either of these purposes, the sea is the field on which we should meet an european enemy. on that element it is necessary we should possess some power. to aim at such a navy as the greater nations of europe possess, would be a foolish and wicked waste of the energies of our countrymen; it would be to pull on our own heads that load of military expense which makes the european laborer go supperless to bed, and moistens his bread with the sweat of his brow. it will be enough if we enable ourselves to prevent insults from those nations of europe which are weak on the sea, because circumstances exist which render even the stronger ones weak as to us. providence has placed their richest and most defenceless possessions at our door--has obliged their most precious commerce to pass, as it were, in review before us. to protect this, or to assail us, a small part only of their naval force will ever be risked across the atlantic. the danger to which the elements expose them here are too well known, and the greater danger to which they would be exposed at home, were any general calamity to involve their whole fleet. they can attack us by detachment only; and it will suffice to make ourselves equal to what they may detach. even a smaller force than what they may detach will be rendered equal or superior by the quickness with which any check may be repaired with us, while losses with them will be irreparable till too late. a small naval force, then, is sufficient for us, and a small one is necessary. what this should be, i will not undertake to say. i will only say, it should by no means be so great as we are able to make it." mr. p. perfectly concurred in this opinion. he had frequently expressed it. but the gentleman from pennsylvania says we have no money, and therefore we ought neither to have a navy nor any thing else, to defend ourselves at home or at sea. he tells the house that our revenue will not exceed ten millions, and that if we agree to have these ships built, we shall want twelve millions. mr. p. trusted that if these two millions were wanted the ways and means will be found, rather than that we shall suffer our commerce to be destroyed, and lose all our credit as a nation abroad. admitting, said mr. p., that our debt is a hundred millions of dollars, it must be recollected that its increase has been owing to a number of causes which could not be avoided, amongst which was our war with the indians, the western insurrection, our treaty with algiers, and the building of vessels for the protection of our commerce; but if our debt is fifteen millions more now than it was at the commencement of the present government, our numbers have greatly increased since that time, so that he supposed, considering the number of individuals who have to bear it, it is not so heavy, in proportion to our population, as it was at that time. having the ability, therefore, he trusted there would be found the will to provide a respectable naval force to protect us at home, our commerce abroad, and leave us in a situation to be more respected by foreign nations than we have heretofore been, and therefore hoped the present motion would be rejected. mr. harper.--notwithstanding, mr. chairman, the subject now before the committee, the usefulness of a naval establishment for the united states, has been so frequently and so fully discussed on former occasions, i deem it important to enter once more into a particular consideration of it, less on account of the general reasons so often urged against the measure, than of those particular objections, founded on the supposed state of our pecuniary resources, whereby it has, at this time, been assailed. the gentleman from pennsylvania has proved, as he thinks, that no possible navy could be equal to the protection of our commerce, extended as it is. and how has he proved this? by the example of other nations--of holland, spain, and great britain. spain, he says, has a very considerable navy, perhaps the third in europe, and yet no commerce. holland found herself unable to support her navy, and even while she supported it, was unable to protect her trade; and therefore she gave it up, and yet, after she had done so, continued to possess a very great commerce. even britain, according to him, mistress of the ocean as she has been for a century past, has not fully protected her trade by her marine; which, in the mean time, has cost her more than the whole sum which her trade has yielded--and, therefore, she would have been better without a navy. this, mr. chairman, is the calculation of a schoolboy, not of a statesman; of the counting-house, not of the cabinet; and if the judgment of the gentleman from pennsylvania were not warped on this, as on so many other occasions, by his particular political system, he would be one of the last persons in the world to present the subject in a point of view so much beneath a mind of the least political discernment. the gentleman, in fact, forgets that britain is indebted to her navy, not for her commerce only, but for her independence; not only for the dominion of the seas, but for her existence as a nation. every man, who is in the smallest degree versed in history, knows that great britain, but for her navy, must long since have been a province of france. had not britain been mistress of the ocean, france would long since have been not only her mistress, but mistress of the rest of europe. that great people, uniting within itself all the sources of military, pecuniary, and maritime strength, has never ceased to contend for universal empire, with immense means, vast genius, boundless ambition and unwearied perseverance, since the period when, two centuries ago, its provinces became united under one government, and its immense resources, managed and called into activity by a minister whose mind was equal to his station, were directed to the increase of its power and extension of its limits. how has britain been enabled to check this formidable career, to maintain her own power, and to arrive at her present high pitch of consequence in the scale of nations? not by her population, which is little more than one-third of that possessed by france; nor by her insular situation, which heretofore could not protect her from invasion and conquest; nor by her military power, which, when compared with that of france, has never been considerable--but by her navy. it was that navy, and the wealth which commerce, protected by it, poured into her lap, that enabled her to support with glory so unequal a contest, to call to her aid the military force of germany, and thus to establish a counterpoise to the power of france. but for this naval force, and the commerce which it protected and cherished--but for this union, cemented by the money, and aided by the maritime preponderance of england--france, combining, as she did, greater means of strength of every kind than any other nation, or even than all the nations of europe united, except germany and great britain, must long since have established her dominion over all. england must have fallen first, being unable, without the command of the sea, to save herself from invasion; and then the powers of the continent, deprived of the pecuniary aid wherewith england was enabled by her commerce, under the protection of her navy, to supply and unite them, would have bent, one after another, beneath her formidable and continually augmenting strength. even now this same navy enables england to ride secure amidst the most terrible storm wherewith the political world has ever been afflicted; to brave all the tremendous dangers by which she has been threatened; to baffle every attempt against her safety, or that of her remotest possessions; and amidst the dismay, the humiliation, or the total overthrow of so many powers, to triumph over her rival, whose strength, always formidable, is exercised, not more by her extension of territory and of influence, than by the consternation wherewith her successes have stricken other states, by the disunion and feebleness which has characterized their counsels, by the terrible weapon of internal commotion with which she threatens, or has actually assailed them, and by the unheard of despotism of her own government, which enables it to employ, in a degree hitherto unexampled in the history of civilized men, the physical forces of the nation, in executing its plans of plunder and conquest. this same navy enables england not only to maintain thus gloriously a conflict so dreadful and so unequal, but to stand the barrier between independence and universal dominion, between liberty and the most degrading despotism, between civilization and the barbarism of the dark ages--to become the citadel of property, the storehouse and the banker of the world, and to render all nations, with their own consent, tributary, by means of her commerce, to the support of her greatness. what, then, mr. chairman, must we think of that political system which estimates the british navy by a calculation of the sums which it has cost to maintain it; forgetting that, without this navy, there would have been no wealth to supply these sums, and, perhaps, no nation to pay them; that without this navy, great britain, instead of holding her present exalted station among the powers of the earth, must long since have sunk into a secondary and unimportant state; and, probably, into the condition of a province of that very rival against whom she now so nobly and so gloriously contends! is it too much to say of such a calculation, that it is a paltry calculation, unworthy of a statesman, and befitting only a schoolboy? but even the navy of great britain, the gentleman from pennsylvania has told us, formidable as it is, has not afforded complete protection to her commerce. how, then, he asks, can we expect to protect our commerce by a navy? if the gentleman means by "protection" the total prevention of captures at sea, it is certain that no nation ever did, or ever can protect its commerce, in that scale. but that is not the true idea of "protection," which means nothing more than such a degree of safety as may enable the merchants of a nation, taken as a body, to pursue their commercial enterprises without discouragement, or eventual loss. this is all the protection that is ever attempted, or that is necessary; and this, i contend, we have it in our power to give. respecting the navy of holland, the gentleman from pennsylvania falls into a mistake equally remarkable. holland, he tells us, has no navy, and yet maintains a very great commerce. formerly she had a navy, but could not maintain it, and was forced to give it up. but where did that gentleman learn that holland has no navy? had she no navy in the american war, when with great gallantry, though with unequal success, she fought the english at sea? had she no navy when she fitted out the formidable armament under de winter, in october, , which, after a dreadful conflict, was defeated rather by the superior address of the british admiral, than the superior force or bravery of his fleet? do we not know, that even now, after this fatal defeat, she possesses, in her different harbors, a much more numerous fleet than is proposed by the present bill for the united states? how then could the gentleman from pennsylvania say that holland has no navy? he ought to have known that until the marine of france and spain were destroyed, in the present war, that of holland was sufficient to turn the scale in their favor and against england; which gave her not only security for her commerce, but respectability and weight among the maritime powers of europe. as to the other assertion of the gentleman from pennsylvania, that holland a long time ago found her navy too burdensome for her resources, and therefore gave it up, it is equally erroneous. holland, as we have seen, never gave up her navy, and even now, exhausted and ruined as she is by french fraternity and internal revolution, maintains a much greater one than is proposed for the united states. there is, indeed, a period in her history, the close of the last and the beginning of the present century, when she ceased to be ranked with the first maritime powers of europe; but that happened, not through the want of means, but a mistake in policy. before that period her system had been wholly maritime. all her resources were applied to her navy. a maritime armed neutrality was her great object, and she long preserved it with success. her commerce, fostered by her marine, spread over every sea; and the northern maritime states, guided to the same policy by her influence, acknowledged her as their umpire, their mediator, and their safeguard. the great powers courted her alliance and respected her rights. she interfered with weight in their disputes. her village of the hague became the centre of their most important negotiations. she disputed the empire of the seas with them singly; and, at one time, she held the united forces of france and england in check at sea, and finally compelled the french armies to retreat from her territory, which they had overrun and occupied. all this she effected by means of her navy, and of the resources which it had furnished to her by the protection of her commerce. at this period she altered her system, and instead of cherishing her marine, and confining herself solely to the maintenance of her commerce, by an armed maritime neutrality at the head of the northern powers, she engaged in the land wars of the great military powers, and made exertions disproportionate to her strength, whereby her resources were exhausted. into this fatal mistake she was drawn by the aspiring ambition, the popularity, and the heroism of one of her own citizens, stimulated and aided by the aggressions, the insults, and the alarming encroachments of the french monarch, louis xiv., at the zenith of his glory, evidently aspiring to universal dominion. william iii., placed by his birth and personal merit at the head of the dutch nation, saw those objects of french ambition, and roused his own country to resistance. called, at length, to the government of england, he communicated to that nation his own martial ardor. he finally succeeded in forming a confederacy to check the progress of france. of this confederacy, holland, his native country, was induced by his influence to become a principal member. at the head of it he struggled against the power of france, with unequal means, and sometimes with unprosperous fortune, but with a genius and perseverance not to be subdued, and a heroism rarely to be equalled. after his death, the impulse which his mind had given to his own and other countries continued to be felt, and the confederacy was renewed under his successor, on a different occasion, but with the same views. at length its object was altered. france was completely humbled and europe secured against her enterprises, but the strength of holland was undermined in the struggle. the vast armies which she had kept up had loaded her with debts. her operations for so many years, by land, had drawn off her attention from her marine; and from that moment it declined, while that of england rose gradually on its ruins. hence, mr. chairman, the downfall of the maritime greatness of holland. her resources were not equal to the maintenance of fleets and armies, of both maritime and military strength. while she was left to attend solely to her maritime concerns, she continued to be powerful, respected, and prosperous; but her situation on the continent, in the neighborhood of a great and ambitious military power, drew her, perhaps unnecessarily, into land wars, to which her strength was unequal, and, of course, her naval power declined. but still she continued for a century to keep up a navy sufficient to form a considerable weight in the scale, and to secure attention to her rights as a nation; and under this security her commerce continued to flourish, in a greater or less degree, till a domestic revolution, aiding and aided by foreign oppression, dried up all its sources. what, then, mr. chairman, is the instruction which we may draw from this example? a nation whose population never exceeded two millions and a half, and whose territory, compared with ours, is but a mere speck on the surface of the globe, a mere garden spot, was able to maintain a most formidable marine, while it attended to that object solely, to extend its commerce under the protection of this marine, and to maintain not only an equal, but a distinguished rank, among the great powers of europe, by whose territories it was surrounded, and by whose formidable armies it was liable to be invaded. even this nation, after a mistake in its policy, or the pressure of inevitable circumstances, it had been induced to divert its attention from its marine to land wars, to exhaust its resources, and burden itself with debts too great for its means, by these disproportionate efforts, still was able to preserve a navy sufficient to give respectability to its flag, and a degree of safety to its commerce. even now, when its resources are dried up by anarchy, or diverted by foreign exaction into the coffers of another nation; when its territory is curtailed, and its population reduced to one million and a half; when it is compelled to maintain an army of , men for france, still it has a navy greater than we propose. shall it, then, be said, that this country, with probably six millions of population, most rapidly increasing, with an extent of territory capable of containing fifty millions, with a commerce greater than that of holland ever was, and with more tonnage and sailors than she ever possessed, is not able to support such a navy as she, even since the commencement of her downfall, has always supported, and still supports? yes, it is said by the gentleman from pennsylvania; but the good sense of this house and of this country will, i trust, correct his mistake, as it has so often done heretofore. but if it were true, mr. chairman, that holland had afforded no protection to her commerce by the navy which she has been able to keep up, does it follow that the same thing will happen to us? will the same navy be more efficacious in our case, than in the case of holland, or spain, or portugal? this must be taken for granted in order to give any solidity to the argument of the gentleman from pennsylvania, and yet nothing can be more untrue. those states are situated at the very door of the great maritime powers, and their dominions are also exposed to invasion by land. they must, therefore, either singly or by combinations with other powers, contend against the whole maritime force of those great states, and must maintain navies adequate to that purpose. but we are under no such necessity. placed at a vast distance from those great powers, and in the neighborhood of those possessions which contribute most to the support of their commerce and their navies, we can attack them in a weak, and yet a vital part, with our whole force, while but a small part of their force can at any time be brought to act against us. it is with this part only that we shall have to contend, should they at any time drive us into a war. let us take england as an instance. her great and valuable possessions lie at our threshold. the uniform course of the trade-winds compels all her vast and rich commerce with those possessions, to pass almost in sight of our shores. the force which she can send to protect this commerce and annoy us, in case of a rupture, will not be her whole force, but that part of it only which she can spare from europe, after securing her preponderance there. france, notwithstanding the prostrate condition of her navy at present, possesses maritime means which will speedily enable her to raise it up again, whensoever those means come to be directed, as one day they must, by a government of some understanding. this navy, and the maritime combinations which will be formed under its protection, england must watch and keep under. her existence will depend upon it. she will, therefore, have but little force to spare which she can bring to act against us. a comparatively small maritime force, therefore, will compel her to respect us, and to avoid a quarrel with us by all just and reasonable means. it follows that a moderate navy, a much smaller one than holland, spain, or even portugal, have supported, would be sufficient for our protection, aided by the peculiar advantages of our situation. those nations, inconsiderable as they are when compared to us in population, wealth, and extent of territory, have supported navies which, however unequal to that of england, have yet afforded some degree of protection to their trade, rendered their flags in some degree respectable, and given them a weight in the scale, a consequence among nations, which otherwise they could not have had. and shall not we, with our great and increasing resources, and the peculiar advantages of our situation, be able to effect still more? mr. nicholas said this question was different from any former question, with respect to the navy, which had been before the house. whatever gentlemen may have heretofore said with respect to the advantages of a navy for the protection of our commerce, they must agree that the present question has a different aspect, as no man can say that seventy-four gun ships are calculated to resist the kind of force which has heretofore made attacks upon our commerce in the west indies. mr. n. was far from believing that our armed vessels had produced the effect which the committee, who reported this bill, stated them to have done. he thought the gentleman from pennsylvania had adduced many sufficient reasons for the fall which had taken place in the price of insurance, independent of our navy; and that, therefore, the committee were wholly mistaken that the advantages already derived from our navy have exceeded the cost of it; and that, if it had been established several years ago, it would have proved a great saving to the united states. mr. n. confessed he had always been opposed to a naval force for the purpose of warring with european nations, and whether the force now proposed is considered as necessary for defence or offence, it must have that character. the propriety of a naval force for this purpose never appeared to him in a questionable point of view; he thought every consideration of policy and interest forbids it. we are well informed, said he, by the best historians, that the british navy has been the means of sinking that nation to its present state; for he could not admire, like the gentleman from south carolina, the splendor and prosperity of a nation, which is brought into such a situation as to render it doubtful whether it can exist for a day, a month, or any other period. if the navy of great britain, then, commenced under different circumstances from those in which we are placed--which, according to the gentleman from south carolina, was not only for the protection of her commerce, but as a defence against neighboring nations, and to guard against the worst revolutionary principles--has nearly ruined that country by the immense sums necessary for its support, shall we, who, according also to the confession of that gentleman, have nothing to fear from european nations--[mr. harper interrupted mr. n. to deny that he had said we had nothing to fear from europe. he had said we had nothing to fear but from the sea.] mr. n. said this was the way in which he understood the gentleman, and that no danger exists of any invasion by a land force. if this is the case, the use to which a navy can be put will only be to defend our commerce from cruisers, and passing fleets. we have not, therefore, half the inducements to the establishment of a navy which influence european nations, and many powerful reasons against such a force. the european nations have, most of them, distant colonies, which they have to protect, and with which they have to keep up a constant communication across the ocean, which renders a navy in some degree necessary. but all the european nations commenced their navies under the delusion that a small force would only be necessary, and that one or two ships would give them an ascendency over other nations. can we expect this, said mr. n.? no; we begin the business with fewer inducements than any other nation ever begun a navy, and without necessity; for it is acknowledged we have nothing now to apprehend from invasion, (and if we had, this force could not be provided in time,) we have no colonies to protect, and no intercourse which calls for a naval force. we cannot, therefore, said mr. n., embark in this business with the same motives which influenced all european nations in establishments of this kind. they built small navies because they would be equal to cope with the small navies of their neighbors; but we are about to begin the business with a navy staring us in the face, the most formidable that any man could suppose to exist. according to his colleague, the british have sail-of-the-line; and yet our navy is undertaken with the avowed purpose of keeping her, as well as the other nations of europe, in check. mr. n. asked whether we could ever hope to succeed in a plan of this kind? we certainly could not, since great britain would always even in war have more than a sufficient force to meet all the ships which we can build. besides, if our situation, as gentlemen say, will make a small force so operative in our hands in time of european wars, will not our possessing it be sufficient to produce war with great britain, when it is always a sufficient cause for war, in the opinion of great britain, for any other maritime power to put a few more ships in commission than their ordinary establishment? and, if congress were to order the building of fifty ships, it would only increase the certainty of this effect. how is a naval force to guard us, which great britain can destroy, whenever she pleases, even in time of war? for she has frequently ships sufficient on our coast to destroy all the vessels which are contemplated to be built. in short, this navy will be the means of keeping this country in continual broils. on the first appearance of arming any additional vessels on the part of great britain, for whatever cause, we must set on foot a negotiation to combine the other powers of europe in our favor; and this country will become the centre of intrigue and tricks for the agents of every country. but the gentleman from south carolina says, this is the cheapest mode of defence; but does the gentleman prove this? can he prove that £ , , sterling is only the third part of the expense of defence, as he says? does he not recollect how much of the revenue of that country goes to pay the interest of their enormous debt, and, therefore, cannot be considered as a part of the expenditure for defence? the gentleman will find, on reflection, he is much mistaken in his calculation in this respect. the gentleman from south carolina has been loud in his encomiums on the british navy, on account of its usefulness to the world; and he calls the calculation of the gentleman from pennsylvania, relative to the expenses of a navy, a paltry, schoolboy calculation, because it has not taken into view this usefulness. that gentleman, said mr. n., only referred to the british navy so far as it was useful in the way gentlemen say they expect ours to be advantageous. but from the contradictions which the gentleman from south carolina seemed to run into on this subject, he did believe that he had not an eye to a navy, merely for the defence of our commerce; he appeared to wish that this country should take a stand like that of great britain, that the safety of the world may, at a future day, depend upon us, as it now does upon great britain. mr. n. believed the ambition of this country, the pride of its government, and naval commanders, will all operate this way; and we may, one day or other, if we proceed with this navy scheme, be as aspiring, as domineering, as any other nation in the world, and by this means be embroiled in continual war, and be saddled with a debt equal to that of great britain. mr. n. believed there existed no good reason for going into the establishment of a navy at all, because he believed it would never be really useful to this country; but if it should be otherwise determined by a majority of congress, this, he thought, of all times the most improper to commence the work. mr. j. williams then moved to strike out what relates to -gun vessels, on the ground that the thirty-nine small vessels which we have are sufficient. the motion was negatived without a division. mr. j. parker proposed filling up the blanks in the section fixing the pay of captains in the navy, with an advance from $ to $ per month to captains of 's, and others in proportion; except the masters of vessels under guns, which were proposed to be lowered. some objection, however, being made to this, and particularly to the mode of doing the business, this being the first time that the subject had been before the house, the section was moved to be struck out, and carried. the committee then rose, and the house having concurred in the amendment reported, mr. nicholas renewed the motion for striking out the -gun ships, and called the yeas and nays upon it. they were taken and stood, yeas , nays , as follows: yeas.--abraham baldwin, david bard, richard brent, robert brown, samuel j. cabell, thomas claiborne, william charles, cole claiborne, john clopton, john dawson, joseph eggleston, lucas elmendorph, william findlay, john fowler, albert gallatin, james gillespie, andrew gregg, john a. hanna, carter b. harrison, jonathan n. havens, joseph heister, david holmes, walter jones, edward livingston, matthew locke, nathaniel macon, blair mcclenachan, joseph mcdowell, anthony new, john nicholas, thompson j. skinner, william smith, richard sprigg, richard stanford, thomas sumter, abram trigg, john trigg, philip van cortlandt, joseph b. varnum, abraham venable, and robert williams. nays.--john allen, george baer, jun., bailey bartlett, james a. bayard, jonathan brace, david brooks, stephen bullock, christopher g. champlin, james cochran, william craik, samuel w. dana, john dennis, george dent, william edmond, thomas evans, abiel foster, dwight foster, jonathan freeman, henry glenn, chauncey goodrich, william gordon, roger griswold, william barry grove, robert goodloe harper, thomas hartley, william hindman, hezekiah l. hosmer, james h. imlay, john wilkes kittera, samuel lyman, james machir, william matthews, daniel morgan, lewis r. morris, harrison g. otis, isaac parker, josiah parker, thomas pinckney, john read, john rutledge, jun., james schureman, samuel sewall, thomas sinnickson, samuel smith, richard dobbs spaight, peleg sprague, george thatcher, richard thomas, mark thompson, thomas tillinghast, john e. van alen, peleg wadsworth, robert waln, and john williams. the bill was then ordered to be engrossed for a third reading [and passed by the same vote].[ ] thursday, february . _relations with france._ mr. livingston called up for consideration the resolution which he yesterday laid upon the table, calling upon the president for any information which he may possess touching the suspension of the french arrêt, declaring neutral citizens pirates when found on board the vessels of belligerent powers; which being read, mr. l. called the yeas and nays upon it. he said he understood that, since yesterday, a member of this house had applied at the office of the secretary of state, and had been informed that some information had been received relative to this subject. perhaps the gentleman would himself state to the house what he had learned from that office. mr. harper said, he had only to state, that he had made inquiry at the office of the secretary of state, and had been informed that a letter had been received from our minister in london, enclosing an extract from the _redacteur_ (supposed to be an official french paper) stating that the executive directory had suspended the edict in question. this extract, he understood, does not state the reason of this suspension; but our minister writes it was owing to a threat of the british government to retaliate upon french citizens within their power. the yeas and nays were taken, and stood-- to . _naval pay._ on motion of mr. josiah parker, the house resolved itself into a committee of the whole, on the bill fixing the pay of captains of ships and vessels of the united states; and after some amendments, the bill was reported, and ordered to be engrossed for a third reading. [this bill provides "that all vessels in the service of the united states, mounting guns and upward, be commanded by captains; those not exceeding guns (except galleys, which are to be commanded as heretofore provided by law,) by masters or lieutenants, according to the size of the vessel, to be regulated by the president of the united states; that the pay of a captain, commanding ships of guns and upward, be $ dollars per month, and eight rations per day; of captains, commanding ships of and under guns, $ a month, and six rations a day; of a master-commandant, $ per month, and five rations per day; and of lieutenants who may command the smaller vessels, $ dollars per month, and four rations per day; that whenever any officer as aforesaid shall be employed in the command of a squadron, in separate service, the allowance of rations to such commanding officer shall be doubled during the continuance of such command, and no longer, except in case of a commanding officer of the navy, whose allowance, while in service, shall always be at the rate of sixteen rations per day."] friday, february . _relations with france._ the following message was received from the president of the united states: _gentlemen of the house of representatives_: in pursuance of the request, in your resolve of yesterday, i lay before you such information as i have received, touching a suspension of the arrêt of the french republic, communicated to your house by my message of the th of january last. but if the execution of that arrêt be suspended, or even if it were repealed, it should be remembered that the arrêt of the executive directory of the d of march, , remains in force, the third article of which subjects explicitly and exclusively american seamen to be treated as pirates, if found on board ships of the enemies of france. john adams. united states, _february , _. _extract of a letter from rufus king, esq., minister plenipotentiary, &c., london, to the secretary of state, dated th november, ._ "annexed i send you a copy of a note from lord grenville, respecting the french arrêt transmitted to you with my no. . a late french paper contains a second arrêt which postpones the execution of the first." _lord grenville to mr. king._ the undersigned, his majesty's secretary of state for foreign affairs, has the honor of communicating to mr. king, minister plenipotentiary for the united states of america, for the information of his government, that, by a decree, published officially at paris, it appears to have been declared, in the name of the french directory, that every person being a native of or originally belonging to neutral countries, or to such as are in amity and alliance with the french republic, who shall bear any commission under his majesty, or who shall form a part of the crews of any british ships of war, or other vessels, should, on the proof of that fact alone, be considered and treated as a pirate, and that it has been ordered that this resolution shall be notified to the neutral powers, and to those in alliance with france. even this decree, contrary as it is to the usages of every civilized nation, cannot excite any surprise, as proceeding from those in whose name it has been published. to the different powers who are thus insulted, and whose innocent subjects are exposed to the most cruel treatment on the part of a government professing friendship or alliance with them, his majesty must leave it to adopt such measures as they will, without doubt, judge necessary, in the case of an outrage hitherto unexampled in the history of the world. the king, however, feels, that protection is also due from him to those who sail under his flag, either in his majesty's ships of war, or in other british vessels; his majesty has, therefore, not hesitated to direct it to be signified to the commissioner for french prisoners in great britain, that the first instance of the execution of this decree shall be followed by the most rigorous retaliation against the french prisoners, whom the fortune of war has already, or may hereafter place at the king's disposal. it would certainly never be but with extreme reluctance that the king could yield to the painful necessity of exposing so many unfortunate individuals to the fatal but inevitable effects of this atrocious decree; but his majesty will have at least the satisfaction of feeling that nothing has been omitted on his part to prevent its execution, and that the authors of it can alone be considered responsible for all its guilt and all its consequences. grenville. downing street, _november , _. mr. livingston moved that this communication be printed. mr. allen objected to the motion as it would delay the consideration of the bill proposing to vest the president with the power of retaliation in certain cases; and it was clear, from this communication, it ought to have no effect upon that bill. mr. livingston said he was not possessed of that intuitive faculty which the gentleman from connecticut seemed to have, as he seems prepared to act on the bill alluded to, without scarcely hearing this communication read; and, perhaps, without knowing the dates of the different decrees. the president has told the house that though the obnoxious decree has been repealed, there is still left in force another decree. does the gentleman from connecticut recollect the words of that decree? or has he had time to examine whether that decree is really in force, or not? if he had done this, mr. l. said he had not done it. it would appear, from what happened the other day, that the house ought not to move quite so rapidly in this business. the house was then told by the gentleman from south carolina, that it was impossible that this information could have been received by the president, because, if it had been received, the president would undoubtedly have immediately sent it to the house. [mr. rutledge said, he did not use the word impossible, but improbable.] mr. l. admitted this might be the word. but it now appears, that the president has not only received the information then alluded to, but received it officially. mr. allen interrupted mr. l. by withdrawing his motion. the communication was ordered to be printed, and was committed to the same committee of the whole to whom was referred the bill vesting the power of retaliation in the president. monday, february . _army increase._ a bill from the senate giving eventual authority to the president of the united states to augment the army. [this bill gives the president authority, in case a war shall break out between the united states and any foreign power, or in case of imminent danger of such war, in his opinion to exist, to organize and raise twenty-four regiments of infantry, one regiment of riflemen, and three regiments of cavalry. the president is also authorized to call out the volunteer corps, on all occasions in which he is at present authorized to call out the militia, provided that he does not call a greater proportion from any one state, than he is authorized to call out of the militia, by the law which directs the , militia to be held in readiness. if it be necessary to carry this law into effect, two millions of dollars are appropriated for the purpose.] on the question for reading this bill a second time, it was carried-- to . _capture of french vessels._ on motion of mr. otis, the house went into a committee of the whole, mr. rutledge in the chair, on the bill encouraging the capture of french armed vessels, by armed ships or vessels, owned by a citizen or citizens of the united states, and for allowing salvage in certain cases. the bill, which proposes a bounty on guns, according to their sizes, having been read, mr. mcdowell observed, that this bill is similar to the one which was two or three different times negatived at the last session. at that time, he considered the situation of this country more alarming than at present, and the conduct of france more likely to drive us to extremities than it has since been. knowing this, he did not expect gentlemen would have introduced a bill of this kind. finding however that gentlemen are not satisfied with things as they are, but are desirous of hiring the people of the united states to make war upon france, though they are unwilling to declare war, and not being willing to give his vote to any such measure, he should move to strike out the first section of the bill. the question was put, when there appeared votes for it, and against it, and the chairman said "it is carried," before he declared his vote to be in the negative. a motion was made for the committee to rise, and negatived-- to . wednesday, february . matthew lyon, from vermont, appeared, and took his seat in the house. _alien and sedition laws._ mr. livingston said, he had received, under cover, a number of petitions from the state of vermont, praying for a repeal of the alien and sedition laws, which he begged leave to present to the house. one of which having been read, in which, among their other objections to the laws, the petitioners complain of having been deprived, by the sedition law, of their representative in congress for the greater part of the present session; mr. l. moved to have the whole referred to the select committee to whom was referred the other petitions relative to this subject; but on mr. gallatin's suggesting that he understood that committee is ready to report, and that it would therefore be better to suffer the petitions to lie on the table until that report is made, and then have the whole referred to the same committee of the whole; that course was taken. _capture of french vessels._ the house took up the report of the committee of the whole on the bill for encouraging the capture of french privateers, by allowing a bounty on guns, and the motion being to concur in the agreement of the committee to strike out the first section of the bill, mr. macon said, there were some other observations made the other day, when this subject was under consideration, which he thought very foreign to the subject. the history of this bill during the last session was given. the house was told it was three times rejected--once by trick. he was surprised to hear two gentlemen make use of this expression. if there was any trick, it certainly was among those gentlemen who had so frequently brought the subject before the house. it had been said, also, that it was once rejected by accident. it was the first time he had ever heard it urged as a reason for reconsidering a subject, that certain members had before voted accidentally upon it. another reason was given, that the vote in the committee of the whole had been improperly obtained, by taking advantage of a mistake of the chairman. by the rules of the house, mr. m. said, the speaker, or chairman of a committee of the whole, has a casting vote, or they may tie a vote; but, after the chairman had declared the question carried, it might be supposed he did not mean to vote, or if he did that he meant to vote with the majority. mr. m. said, he had seen a letter printed in the papers from one of our naval commanders in the west indies, wherein he says, that american vessels sail into the neighborhood of the french islands, in order to be carried in; that they afterwards get away, pretending to have made their escape, and soon return with another cargo. he also mentions having fallen in with one of these vessels evidently steering for a french island, but the vessel's papers were so well managed, and the captain and mate understood each other so well, that he could make nothing of them. if, said mr. m., the laws for suspending our intercourse with france and her possessions can be so easily evaded, might it not be expected that this law would be evaded, and that privateers might be fitted out in the west indies, and brought to a certain latitude, for the purpose of being taken? he had no doubt this would be the case. mr. mcdowell said, that when this bill was before under discussion, he had stated that our situation with respect to france appeared to be more favorable than last year. this was denied by the gentleman from massachusetts (mr. otis.) he considers our danger greater, and this bill more necessary than at that time; and has gone on to remark, that all that was said about our improved situation with respect to france, were songs only fit for children, and not for the people of america. he was of a different opinion; they were the songs of peace, and as such, he believed, suited to the people of this country, who wish to live in peace. and if that gentleman knew more of the evils attendant on war than he does, he certainly would not be so ready to embrace them as he appears to be. but he thought the gentleman from massachusetts mistaken as to our situation; he believed it to be much better than it was at the last session. he formed this opinion from the despatches of mr. gerry, who declares it to be his opinion, that france is sincerely disposed to make peace; and more particularly from the president having nominated a minister to treat with france, though he had declared he never would send another minister until he should receive assurances that he would be received as the minister of a great, free, and powerful nation. he supposed, therefore, that the president has received these assurances, and that we have, on this account, some reason to hope, that a reconciliation between the two governments will take place. he was opposed to this bill, because it might be the means of bringing the country into difficulties and war; it was giving to one part of our citizens the power to embroil the whole. no necessity has been shown to exist for this law; it is, indeed, said to be necessary to keep down the privateers of france, but we find by letters which have just been published, from the commanders of our armed vessels, that there are very few to be seen. but supposing there are yet a number of them, what better use can our public armed vessels be put to than to go after them? they must either be employed in doing this, or sent where he did not wish them to go, to the european seas, or kept useless at home. mr. gallatin would not have troubled the house on this subject, had it not been for the remark of the gentleman from massachusetts (mr. otis) immediately before the adjournment took place on monday. he told the house that the vote on this subject ought not to be influenced by the nomination of a minister to go to france; and he precluded any answer being then given to the remark, by moving an adjournment. for my part, said mr. g., i do not consider this bill as very important in itself, and i have always been at a loss to know why there appeared to be so great an anxiety to have it passed. it is said, we ought not to recede from the ground we have taken; and really, from the arguments of the gentleman from massachusetts, it would appear that there was a motion before the house to prevent our merchants from arming their vessels, or our public vessels from taking french privateers. this measure brings us to the question, not whether we will recede, but whether we will progress. the object of this bill is not to authorize any new measure, but it is to give a bounty to merchants to do what they are already authorized to do. the only question is, whether it will promote the taking of french privateers? he believed it would produce no effect at all, except the blanks in the bill are to be filled with sums which would produce a very serious demand on our treasury. the object of merchants is to make a safe and quick voyage, and if privateers will keep out of their way, they will never go in search of them: and if they should fall in with a privateer, their aim would be self-defence, and not capture, since to attempt this might hazard the loss of their vessel and valuable cargo, and take from them means of defence against any other attack, since they must put their own men on board the captured privateer. it is clear, therefore, said mr. g., that one of two things must take place, either we must give such a bounty on the guns of privateers as will make the expense of taking them greater than the benefit, or else it will become a mere matter of speculation, or small vessels will be fitted out on purpose to obtain the bounty. when privateers are taken by other countries, they are always taken by their vessels of war, and seldom by letters of marque. but it is said this measure ought to be taken, in order to strengthen the hands of our minister, by showing our determination to resist, in case an accommodation does not take place. on the same grounds, mr. g. said, a declaration of war might be urged. as to the effect to be expected from the appointment of a minister to treat with france, he considered it merely as opening a door to negotiation. he agreed with the gentleman from massachusetts, that it ought by no means to be considered as putting an end to the dispute between the two countries. it may succeed, or not. but this step having been taken, he did not think proper to go into a measure of this kind, especially since it can be attended with so little good effect. mr. josiah parker said, when he gave notice to the house on monday of the nomination of a minister to go to france, and declared that, on that account, he should vote against this bill, he did not do so because he was willing to relax from any of our measures of defence or offence against the french; but because he thought the measure proposed by this bill puerile and ineffectual, and therefore unnecessary. when he made this declaration, he was sorry to differ in opinion from the gentleman from massachusetts, with whom he had had the honor to vote very frequently. at the same time that he said this, he declared himself ready to abide by every measure of defence yet adopted, and even to take higher ground than has yet been taken: for he had no opinion either of the magnanimity or sincerity of the french republic. he believed they had no desire for peace, except such as arose from their changed situation. he thought it better, however, not to go into any little, irritating measure, like this. the president had heretofore told the house that he would never send another minister to france until he received assurances that he would be properly received; he believed the president had received these assurances from the french minister at the hague, through our minister there. mr. p. thought the second section of this bill, allowing a salvage on the retaking of any of our vessels, ought to pass; the first he hoped would be struck out. mr. pinckney was sorry to differ in opinion from the gentleman just sat down as to the expediency of passing this bill. he did not think it a measure of great importance; but, as an additional measure of defence, it may have some effect, and he was therefore for agreeing to it. he thought the gentleman from pennsylvania (mr. gallatin) had put the prospect of a negotiation with france upon a proper footing; and he agreed with that gentleman that we ought not to vary the ground we have already taken; but he did not think that any augmentation of force would be going off the ground originally taken. what, asked mr. p., was the ground taken at the last session, and acted upon at this? it was, that we should, by all means in our power, prepare for our defence, more especially that we should add to every measure of defence to which our revenue is adequate, on the ocean. we have shown this to be our determination both at the last session and this, and our preparations have only been limited by our ability to make them. this measure, therefore, is a continuance of the same ground. this bill reverts, therefore, altogether upon the question of expediency, and this he thought the proper footing on which to place it. the gentleman from pennsylvania has objected to its expediency, because he says it will be inefficacious. mr. p. would give a short answer to this, which was, that its expense will be commensurate with its utility. there is no doubt, if it has any effect at all; if it induces any private armed vessels of the united states to bring into our ports privateers which are depredating on our commerce, no moderate reward could be too great to be given for this advantage. and if there is nothing done; if the law proves ineffectual, then the public is nothing out of pocket. it is one of those cheap expedients which may be beneficial, but which can have no bad consequences. mr. harper believed that gentlemen, in their deliberations on this subject, have fallen into some mistakes as to the course which this bill took at the last session. mr. h. gave the history of this bill, and also spoke of the decision which had taken place in committee of the whole as by no means conclusive. on the general policy of the measure, he was not inclined to make any observations. he believed it was well understood; but he would not omit this occasion of declaring, that, in his opinion, its policy had not been changed by the nomination which has taken place of a minister to treat with the french republic. it is said that an intimation has been made, not through the dutch minister, but through the secretary of legation at the hague, to our minister there, that the french government is disposed to receive any minister plenipotentiary which we may choose to appoint, suitable to the dignity due to the representative of a great, free, and independent nation. this intimation having been given to the president, he has thought it proper to meet the advance so far as to nominate a minister, which minister is to go to france, provided he shall receive assurances of being properly received, and a minister of equal rank appointed to treat with him. this change, mr. h. said, from haughty insolence; from the expulsion of our minister; from a demand of tribute; from requiring apologies for speeches; from outrage and insult, to the mild language of supplication, must certainly have been owing to the measures of this government, and therefore clearly evinced the policy and propriety of these measures. we have thus far, said mr. h., seen the good effects of buckling on our armor, at the same time that we hold out the olive branch. and instead of relaxing, we ought now to brace up the system; not that he would wish to take any new ground but merely reinforce and invigorate the system already established. this he thought the true policy of this country. whether this application for a negotiation on the part of the french republic may arise from sincerity, or from a wish to wheedle this country to their own advantage, or because they perceive we are not to be bullied into submission, and therefore it is best to live on friendly terms with us, he held it wise policy in us to enlarge our means both of defence and offence, until our dispute with france is brought to a close. he, therefore, thought it of more importance to adopt this measure now than heretofore; because, if it is not carried, it may be supposed that we have forborne to adopt it, because we are disposed to relax the instant we have information that a negotiation is likely to be opened, and that they may at any time unnerve our arm by a proposition to negotiate. therefore, if he had before been against this measure, he should now be in favor of it, because, if it had no other good effect, it would convince the government with which we are about to treat, that the same vigorous measures which have produced this negotiation will still be continued, and that though we are treating for peace, we are preparing for war, and that we are determined to do ourselves justice, if they refuse to do us justice. for these reasons he hoped the bill would pass. mr. livingston said, that considering how great a favorite this measure had been of its partial parents, it was the most unlucky child that ever showed its face in the house. it had scarcely seen the light at the last session, when it was lost in the short passage from its nursery in the committee to the house, because those who were most interested in its preservation, by accident, did not happen to vote for it. another accident of the same nature prevented its passage when it was again attempted in the same session. at the interval of a year, the same ill fortune seemed to pursue this unlucky bantling. it had scarcely taken its first step into existence when the same forgetfulness seemed to seize all those who had the care of it. again, it was lost in the committee; again it accidentally expired; and all the efforts to revive it, he believed, would be in vain. mr. l. then went into a history of the bill to show that it was lost, not by accident, but because a majority were opposed to it. mr. l. said, he understood that france proposes to receive a minister from this country on the very terms upon which only the president of the united states has heretofore said he would ever send one. it was said to be improper to recede from the ground we have taken on this account, because the french may not be sincere. he had heard no such idea suggested, and gentlemen certainly do wrong in imputing motives to others without foundation. but when gentlemen come to the merits of the bill, they touch them very lightly. they tell you it is part of our general system of defence. is this the case? how is it to operate? it is to operate as a measure of aggression, not of preservation, or self-defence; and though he was perfectly willing to preserve our present ground, he did not wish to progress in any measures of hostility, especially when so little advantage can be derived from it as is proposed by this bill. mr. dana said that the president of the united states, in his message to both houses of the st of june last, declared, "that he would never send another minister to france until he had assurances that he would be received as the minister of a great, free, and powerful nation." the character of the president of the united states for integrity and political fortitude, is well known and established, and that character is pledged for an adherence to the declaration above recited. nor had he any idea of his receding from it. with a knowledge of this fact, we are to inquire what is the purport of the information which has been given to this house of a minister having been appointed to negotiate with the french republic. for his own part he did not consider the french government sincere; and he was authorized to think so by the declaration of this house in answer to the president's speech. nor did he think the president believed them to be sincere, and he was authorized in thinking so, from his communication to both houses at the opening of the session. how, then, is the nomination of a minister to be understood? it was to be understood in the same light in which we used to appoint commissioners during our revolutionary war, who were sent to europe to treat with great britain long before we expected she would be willing to treat for peace; but they were possessed of eventual authority. so, in the present case, the authority proposed to be given to our minister at the hague, is only to be an eventual authority, that when he receives sufficient evidence of the sincerity of the french government, he may proceed to treat with them. nor did he believe that the senate possessed any document informing them that the president has already received these assurances. [mr. d. here read extracts from the president's address to both houses, from the address of this house in answer to it, and from his reply; in which the president states he can have no confidence in the sincerity of the french government, while the decree which condemns our vessels as prizes, on account of having articles of british growth or manufacture on board, is in force.] we know, said mr. d., that this decree is, however, yet in force; and yet gentlemen pretend to say that the nomination which has taken place is a proof that the president has now some reliance on the sincerity of the french government; whereas it is nothing more than a conditional appointment, such as he had already stated. no gentleman will hazard his political sagacity by saying, a negotiation is likely to take place whilst that decree is in existence; nor can any gentleman be found who will apologize for it, if it is so atrocious that its repeal must be an indispensable preliminary to any negotiation which may take place. believing this nomination, therefore, to be nothing more than the naming of a person to treat with the french government when it shall condescend to do us justice, the arguments of gentlemen built upon it fall to the ground. and if they attend to the declaration of this house, in the address already alluded to, they will find that we ought to advance in our defensive measures instead of receding, or even remaining stationary. mr. nicholas supposed during the first half of the speech, of the gentleman who had just sat down, that he meant to vote against this bill, for he could not have supposed that he had quoted the president's message to congress, in june last, for the purpose of making a declaration such as he has made with respect to it. he supposes that the president has received no assurances from the french republic that our minister will be received, though he has heretofore said he never would send a minister until he had assurances he would be properly received; but that he has appointed a minister to wait, as it were, at the door of france, for a declaration that he will be properly received. and he supposes that the declaration of the president will in this way be satisfied. mr. n. believed, if the president has appointed a minister, he will be received, because he did not believe he would have appointed him until he had good assurances that this would be the case; or, if he has, that he has certainly forgotten his declaration. the gentleman last up had made use of a very extraordinary argument. he says the french nation is governed by different principles from any other. when we entreat them to be at peace, he says, they insult us; but when we give them cause to wage eternal war against us, they become humble and submissive. mr. n. believed that this was not the first time that such measures have had this tendency; but it is the first time it has been acknowledged that the measure alluded to (the publication of the despatches containing the unauthorized negotiations of x, y, and z, he supposed was meant) was calculated to produce these direful effects. he did fear they were intended to have these mischievous consequences; but he hoped and believed that their being so notorious and palpable have been the means of defeating the intention, and of saving the nation from war, as it showed that the government of this country had no desire to be at peace. the french saw that a war between the united states and them would have been a war of passion, in which they could have had no possible interest, and which would, above all other things, have proved agreeable to their enemy. they saw that there was a party in this country who wished for this state of things, and he believed the extremity to which things had been carried has defeated the object in view. i do believe, said mr. n., that france is now disposed to make peace; that she is calling upon us to enter into negotiation, in order that the party in this country who are desirous of war may have no pretext for carrying their wishes into effect. mr. n. was astonished, that after a minister of respectable character, a minister chosen by the president, and who declared he accepted of the employment from a desire to support his administration, being well acquainted with the disposition of france, from his having resided there a considerable time--has asserted that, previous to their knowledge of the publication of the negotiations of x, y, and z, in this country, the french government were desirous of negotiating a peace; that after having rejected two of our ministers, and retained a third, the resentments appeared to be satisfied; and that, though, after they had received information of the publication of these despatches, their displeasure was for a while excited, yet before mr. gerry left france, the same disposition for peace had returned; though, from the disposition which appeared in this country, they were doubtful how their overtures would be received. and after we have now proofs that they have made overtures, in conformity to the sentiments exhibited in mr. gerry's despatches, it was astonishing, he said, that gentlemen should ascribe this offer to negotiate to the effect which the small force we raised has had upon them--a force which could not possibly have availed any thing against such a force as it might be expected would be sent against us, if it was the purpose of france to invade this country. mr. rutledge observed, that the effect of the measures which were taken at the two last sessions of congress have been so different from what was predicted by the gentleman from virginia that he was no longer inclined to give credit to his predictions. he has constantly been prophesying, but time and experience have shown his prophesies to be wholly unfounded. it was doubtless in the recollection of the house, that that gentleman thought it would be weak to rely upon a navy; he thought and said that many of the measures formerly taken would plunge the country in war, by causing a declaration of war on the part of france. the gentleman apologized for the length of his speeches, because he thought the measures of the last importance; and that if they were adopted, the scabbard would be thrown away, and it would not be in our power to resume it. but, instead of war, it is now found these measures have obtained for us peace--at least gentlemen say so. the gentleman from virginia now predicts we shall have peace; but as all the former predictions of that gentleman have fallen to the ground, he trusted a majority of this house will not be inclined to give credit to his present prediction. much had been said about the diplomatic skill of france; and he thought her present conduct more deserving of this epithet than any of her former measures with respect to this country. let gentlemen review the conduct of that country. she first attempted to bully us; but finding that we were not to be frightened, her next object was to obtain delay, in order to afford time for the spirit which had been roused by her injuries, to spend its force. when our minister, mr. pinckney, first arrived in france, he was assured he would be received; but the french had an agent in this country feeling the pulse of the people, and finding that there existed a great deal of french mania, and a party upon whom they could rely, the french government refused to receive our minister. this country, still desirous of preserving peace, sent three commissioners. what was then the conduct of the french government? our ministers remained for months at paris an unique spectacle, waiting in vain to be received. france has endeavored to palsy our government--to produce delay--to give time for that noble spirit which has done so much honor to our country to spend itself. when she finds that our efforts to negotiate having failed, we buckled on our armor, and were determined to resist her injustice, the french secretary of legation at the hague is directed to have some conversation with our minister there; and assure him, notwithstanding this country had done acts enough to justify the most offensive measures, that if he will send another minister to france, he would be received as an agent of a great, independent, and powerful nation. gentlemen catch at this; but what is it but an attempt to arrest the arm of the government of this country, just when it was about to strike a blow? and yet gentlemen are the dupes of this diplomatic skill. mr. livingston was not surprised that gentlemen who had always been the advocates of war, at this critical moment, when all the horrors of peace stare them in the face, should seize every opportunity of postponing that dreaded event by questioning the sincerity of the offer to negotiate. [mr. rutledge asked whether this had been done? the speaker answered in the negative.] from those gentlemen this was naturally to have been expected, and he therefore excused their vexation and dismay. but mr. l. said he was not a little astonished that others, who at least professed an attachment to peace, should betray such evident anxiety and uneasiness at its approach. the gentleman from south carolina (mr. rutledge) has said that he wishes for peace; that no class of men are more exposed than his constituents, and that he himself would be a great sufferer by war. such wishes and such motives he was however inclined to believe would have prompted language very different from that which had just been heard. a gentleman really desirous of peace would not, he should have supposed, travel out of the argument to pronounce philippics against those with whom we were treating, or to question the sincerity of overtures which were made in the mode we ourselves had prescribed. he would not ask gentlemen who pronounce so decisively on the subject; who tell us that no reliance is to be placed in french professions; that they promise only to betray; that, unlike all other nations, they treat us with disdain when we ask for peace, but like spaniels, crouch and fawn upon us when we use them ill, whether they had calculated the consequences of their doctrine? that would be demanding more from them than their conduct had given him a right to expect; but he would ask whether they had attended to dates, when they arrogated to their measures the credit of producing the present disposition for peace in the government of france? let it be remembered, said mr. l., that the most earnest and pressing solicitations for an accommodation were expressed to mr. gerry; that he was repeatedly urged to negotiate a treaty, which it was more than intimated he might have on his own terms; and that, after his repeated refusals to treat, a minister was designated to carry these pacific intentions to america--and all this before any account of those measures on which gentlemen so much pride themselves had arrived in france. let it not be forgotten, too, that when the account of these measures did arrive, so far from having a beneficial effect, they were very near producing the one for which gentlemen now tell us they were intended, and for which they were indeed admirably calculated--that of provoking on the part of france, a declaration which could not be obtained here. mr. gerry very expressively gives us these important facts. he states the evident desire to accommodate before the arrival of the despatches, and the turn which their contents gave to the negotiation. the discussion was turned to unimportant points; the design of sending a minister was relinquished; and every thing showed a design to protract the business, until it could be ascertained whether the united states were desirous of peace, or would receive a minister if he should be sent. in this state of things, mr. gerry received orders to return. all further intercourse with france then ceased, until the president, by his message to this house, declared the terms on which alone he would send a minister to france. no sooner were these terms known, than the assurance is sent in the very words prescribed by the president, accompanied by expressions of an earnest desire to treat. in all this history, subsequent to the departure of messrs. pinckney and marshall, he thought an evident desire had been shown for an accommodation, the sincerity of which he believed it was our duty to test--not by reproachful speeches and hostile measures, but by meeting their overtures for negotiation in good faith; and while we showed our desire for peace, not to trust too much to our wishes, but retain every measure of defence. the gentleman from south carolina (mr. rutledge) had mentioned delay. france, he said, always conquered by producing delays. this he thought not a very applicable expression to the rapidity with which gentlemen traced their conquests. but on this occasion it was particularly unfortunate. it appears that the overtures which have now been acted upon were communicated by the minister for foreign relations at paris, to mr. pichon at the hague, and by him to mr. murray, on the th of september; and we hear nothing of them until the close of february. he did not know when the communication was received here; but there was at least a probability, from the date, that it was before the opening of the session; before the adoption of all the expensive measures we have undertaken; before the loan was opened at eight per cent.; before the intemperate commentary was written on mr. gerry's despatches, with which we have been favored by the secretary of state. let gentlemen compare the language of that singular state paper with these proposals made to mr. murray; let them examine the respective dates, and then let them talk to us of delay. mr. shepard could not think, with the gentleman from new york, that france is serious in her proposals to negotiate; he believed she meant to deceive us; and sooner than be deceived by them, he would fight the ungodly nation. after some other observations, he sat down, with hoping the question would be taken. the question was put on agreeing to the report of the committee of the whole, and carried-- to , as follows: yeas.--george baer, jr., abraham baldwin, david bard, richard brent, robert brown, samuel j. cabell, john chapman, thomas claiborne, william charles cole claiborne, matthew clay, john clopton, thomas t. davis, john dawson, george dent, joseph eggleston, lucas elmendorph, william findlay, john fowler, nathaniel freeman, jr., albert gallatin, james gillespie, andrew gregg, william barry grove, john a. hanna, carter b. harrison, jonathan n. havens, joseph heister, david holmes, walter jones, edward livingston, matthew locke, matthew lyon, nathaniel macon, blair mcclenachan, joseph mcdowell, anthony new, john nicholas, josiah parker, thompson j. skinner, samuel smith, william smith, richard dobbs spaight, peleg sprague, richard sprigg, richard stanford, thomas sumter, abram trigg, john trigg, philip van cortlandt, joseph b. varnum, abraham venable, and robert williams. nays.--john allen, bailey bartlett, james a. bayard, jonathan brace, david brooks, stephen bullock, christopher g. champlin, james cochran, wm. craik, samuel w. dana, john dennis, william edmond, thomas evans, abiel foster, dwight foster, jonathan freeman, henry glenn, chauncey goodrich, william gordon, roger griswold, robert goodloe harper, thomas hartley, william hindman, hezekiah l. hosmer, jas. h. imlay, john wilkes kittera, samuel lyman, james machir, william matthews, lewis r. morris, harrison g. otis, isaac parker, thomas pinckney, john read, john rutledge, jr., james schureman, samuel sewall, william shepard, thomas sinnickson, nathaniel smith, george thatcher, richard thomas, mark thompson, thomas tillinghast, john e. van allen, peleg wadsworth, robert waln, and john williams. the second section was then amended by adding to it the usual enacting clause; but after some observations against passing it by mr. sewall, since the first section had been stricken out on the motion for its going to a third reading, it was negatived. and so the bill was rejected. _expulsion of matthew lyon._ mr. bayard proposed the following resolution to the house: "_resolved_, that matthew lyon, a member of this house, having been convicted of being a notorious and seditious person, and of a depraved mind, and wicked and diabolical disposition; and of wickedly, deceitfully, and maliciously, contriving to defame the government of the united states; and having, with intent and design to defame the government of the united states, and john adams, the president of the united states, and to bring the said government and president into contempt and disrepute, and with intent and design to excite against the said government and president the hatred of the good people of the united states, and to stir up sedition in the united states--wickedly, knowingly, and maliciously, written and published certain scandalous and seditious writings, or libels, be therefor expelled this house." mr. b. said he had only to remark that this resolution is copied from the record of the trial, which he had in his possession. mr. nicholas said, if this had been a candid statement of the business, he should have been willing to have come to an immediate vote upon it; but words are introduced into this resolution (which are words of course in every indictment) which do not particularly belong to this offence, and the truth of which is never inquired into upon a trial. as he wished the nature of the offence to be clearly stated, he hoped the motion would lie for the present. mr. bayard observed he had already said the terms used are copied from the record itself, and he did not think the gentleman from virginia had been wiser than the law. he had himself no doubt that all the charges on the record are pertinent to the subject; if not, it would be extremely improper to introduce them. they are charges upon which a jury of the country have decided. mr. nicholas appealed to the gentleman from delaware, and to all other gentlemen of the law who heard him, whether the words here used are not the mere form of the indictment, and unconnected with the act here charged. he moved to adjourn, which motion was carried without a division. friday, february . _alien and sedition laws._ mr. bard presented several petitions and remonstrances from , inhabitants of the county of franklin, in pennsylvania, praying for the repeal of the alien and sedition laws; which having been read, mr. bard moved to have this petition referred as usual. mr. harper inquired whether it would be in order to strike out a part of this petition. on being answered in the negative by the speaker, mr. h. said, he was always unwilling to object to the reference of petitions; but, on this occasion he could not help protesting against an atrocious libel contained in these petitions against the courts and juries of this country. some time ago a great deal had been said on the subject of courts and juries in this house, and now we find the sentiments, as many others have been, reverberated in the form of petitions. it is here said, "that the sedition law had, in its execution, been used as a means of private vengeance, personal enmity, and party resentment." a charge so unjustifiable, and so untrue, upon the courts and juries of this country, he could not suffer to be referred without his protest. mr. gallatin observed, that the reference of these petitions is objected to, on account of what the gentleman from south carolina calls a libel, which makes a part of these petitions. this, said mr. g., is going upon the ground, which the greatest enemies of these laws have barely suggested might be taken, but which they thought scarcely possible, viz: that the right of petitioning might next be restricted, since the liberty of writing and speaking on the measures of government was by law restricted: and now, taking it for granted, that the allegation contained in these petitions is untrue, the gentleman from south carolina wishes to refuse these petitions a reference, without examining whether it is true or not. the petitioners say that the sedition law has been carried into effect under the operation of party spirit and personal revenge. the gentleman says that this is not true; but he does not want to have the allegation examined, in order to discover whether it be true or not, but to dismiss the subject at once; to tell the people, "you shall not be permitted to lay your petitions before us, if you dare to say that laws are carried into operation to gratify party spirit or private revenge, (for nothing is said of courts and juries,) if they contain such allegations, we will reject your petitions." mr. g. hoped, on examination of the fact, the house would be convinced that though the charge is not a libel, that it is at least a gross mistake; that no such personal enmity, party spirit, or private revenge, has taken place, either in the commencement of any prosecution under this law, or in any decision which has taken place. but thus to object to the reference of petitions, would be to say that we have the power of defining the nature of petitions; that they may apply to this and that object, but that there are certain points which the people may not touch. he wished to know whether the people have not a right to say, if they choose, that the administration of justice is corrupt? and whether, if they do say so, the fact ought not to be inquired into? it certainly ought, and he was surprised to hear such an objection made. it must have arisen, because these petitions are grating to the feelings of gentlemen who are favorable to these laws. he hoped, on recollection, that the reference of petitions does not imply an approbation of the sentiments contained in them, that the gentleman from south carolina would permit these petitions to be referred. mr. harper was not surprised that the gentleman from pennsylvania should defend these petitions, for reasons which every man must know. what he has said upon the subject is no more than a repetition of some things which we have before heard. he agreed that, when grievances are complained of, they ought to be examined; and if the people were to complain of a maladministration of justice, the fact ought to be inquired into; but when the repeal of a law is prayed for, it certainly cannot be proper for petitioners to go into charges against the administration of courts and juries, by saying that prosecutions are carried on under party malice and party revenge. to do this is to strike at the vitals of our constitution. the gentleman from pennsylvania likes this, perhaps, from party motives, but he ought to remember that it is an instrument which will cut both ways; and the use of which, if he has any respect for the laws and rights of his country, he may live to regret having countenanced. mr. h. said, if in order, he would move to refer this part of the memorial to a select committee, with a view of inquiring into the subject-matter, and report their opinion thereon to the house. the speaker declared such a motion out of order; and, after some observations from mr. nicholas, in which he said the gentleman from south carolina had answered himself, by allowing the propriety of a reference at all; and observed, if because these petitions complained of the administration of one part of our government (which, however, he did not allow they do) they were to be rejected, it might be expected that, hereafter, no petition would be received that complained of the maladministration of any department of the government. the reference was carried, there being votes for it. mr. gallatin presented petitions from six hundred and seventy-eight inhabitants of chester county, praying for the repeal of the alien and sedition laws, in the same words with those presented yesterday. _on expelling matthew lyon._ mr. bayard called up for consideration the following resolution, which he had laid upon the table a day or two ago: the resolution having been read, mr. b. presented to the house a copy of the record of mr. lyon's trial, which was read by the clerk, after which, mr. b. observed, it would not be necessary to trouble the house with many observations in support of this resolution. the facts upon which the resolution is founded, are proved to be incontrovertibly true, by the record which had just been read. the only question, therefore, before the house was, as to the consequence of the fact, or whether the crime of which the member in question had been convicted, is a sufficient cause for expulsion. mr. b. referred the house to that clause of the constitution which gives the house the power of expulsion. the power, said he, is unlimited. the house has the power to expel a member for any crime, or for any cause, which, in their discretion, they conceive has rendered him unfit to remain a member of the body. perhaps some gentlemen may think that it is improper for the house to take notice of acts done by its members out of the house, but he believed the fallacy of such a doctrine would be easily seen. it was certainly possible, and might, therefore, be imagined, that a member of this house, might be guilty of murder, treason, perjury, or other infamous crime, and would it be asserted that a man, defiled by crimes of this kind, ought to be suffered to represent a portion of the people of the united states in the national legislature? he trusted that no gentleman, who valued reputation, would contend for such a point. the question, then is, said mr. b., whether the act in question is an act of that description, the commission of which ought to induce the house to expel the convicted member? in his opinion, the crime was of the first political magnitude. a crime not only affecting the members of this house, but the whole community, as its consequences go to the subversion of the government. this government, said mr. b., depends for its existence upon the good will of the people. that good will is maintained by their good opinion. but, how is that good opinion to be preserved, if wicked and unprincipled men, men of inordinate and desperate ambition, are allowed to state facts to the people which are not true, which they know at the time to be false, and which are stated with the criminal intention of bringing the government into disrepute among the people. this was falsely and deceitfully stealing the public opinion; it was a felony of the worst and most dangerous nature. the member from vermont has been convicted of doing this, with a view of exciting the hatred of the people against the president and senate, and of stirring up sedition in the country. this, in his opinion, was a crime of the greatest magnitude, since it is all-important that the channel by which information is conveyed to the people should be preserved as pure as possible; for, if men are allowed to state things as facts, which they know to be false, what will be the consequence? however upright the government, or however correct the first magistrate may be, the hatred of the people may be excited against them by means of false information; and when a foreign foe, or domestic traitors, join the standard of rebellion, the best constitution and government may be subverted. therefore, that falsehood which deprives men of the means of forming a true judgment of public affairs, in this country, where the government is elective, is a crime of the first magnitude. the member from vermont has been convicted, under aggravated circumstances. he was on this floor when the law, against which he has offended, was passed. he, therefore, was well acquainted with the law; yet, with this knowledge, he has falsely, scandalously and maliciously, defamed the president of the united states, with a view of exciting hatred, and stirring up sedition. these facts are recorded and incontrovertible; and he conceived it would be out of order to call them in question. mr. b. concluded with appealing to the candor and honor which he expected to find in the house, whether a member, the malice of whose heart, and the falsehood of whose pen, stood recorded; who had, from the worst and basest motives, violated a law which he had himself assisted to make, was fit to hold a seat in that house. will any one say that a man who does not keep the laws ought to be allowed to make them? certainly, nothing was more repugnant to principle and propriety; and, as he conceived the member from vermont was notoriously and exemplarily guilty in this respect, an obligation rested on the house to expel him. mr. b. said he brought forward this resolution from a sense only of public duty, from a strong feeling for national character. he knew but little, and should be happy if it were less, of the member who was the object of it. he could not be suspected of having been induced to the step he had taken by the miserable gratification of offering violence to the feelings of the member. he believed that nothing he had said, nor any thing which could be said, would awaken a single feeling. his sensations were of another sort, and excited in another manner. mr. b. conceived he had done his duty, and if the house refused to purify itself by the expulsion of the member, it was a satisfaction to him to reflect that it would appear to the world that he had no share in the disgrace. mr. nicholas had hoped that the gentleman from delaware would have shown to the house something in this transaction which made the character of the member alluded to so infamous as to have rendered him unfit to hold a seat in this house. he should have thought that, after a member of this house had suffered so severely as the member from vermont has suffered by fine and imprisonment, it would have been thought necessary to go into a consideration of the nature of the offence of which he is said to have been guilty, and to have shown that the guilt attaching to him was such as to defile the characters of the rest of the members to sit with him, before a vote of expulsion was taken. indeed, mr. n. had supposed that there had been but one opinion on this subject, and that no attempt would have been made to have inflicted a second punishment. the gentleman from delaware, mr. n. said, had confined himself in his declaration about this offence, to its being an offence against one of the laws of the united states, without showing the house what the offence was, or wishing them to form a judgment upon it. mr. n. was surprised at this second prosecution, because, if gentlemen will speak candidly according to the opinions which they formerly delivered in justification of the law, they will acknowledge that the whole of the charges brought against the member from vermont ought not to have been inquired into under the sedition law; since two of the counts contained in the indictment are mere matters of opinion, not containing the least suggestion of fact; and the third rests so much on matter of opinion, that it is impossible, according to a sound construction of the law, for any guilt to be incurred by the act. mr. n. wished the house to attend to the nature of the charges exhibited against the member from vermont, and to say whether they were not of such a nature as to render it difficult to say whether they are well founded, and, if they are well founded, then they are innocent. in the record from which he had copied the charges, there are three counts; two of them are founded on extracts taken from a letter, called "barlow's letter;" the third is for sentiments contained in a letter of the member's own writing. the two first turn on mere matters of opinion. mr. n. read the counts as follows: "the misunderstanding between the two governments has become extremely alarming, confidence is completely destroyed, mistrusts, jealousy, and a disposition to a wrong attribution of motives, are so apparent as to require the utmost caution in every word and action that are to come before your executive--i mean if your object is to avoid hostilities. had this truth been understood with you before the recall of monroe, before the coming and second coming of pinckney; had it guided the pens that wrote the bullying speech of your president, and stupid answer of your senate, at the opening of congress in november last, i should probably have had no occasion to address you this letter. but we found him borrowing the language of great britain, and telling the world that, although he should succeed in treating with the french, there was no dependence to be placed on any of their engagements; that their religion and morality were at an end; that they had turned pirates and plunderers; and it would be necessary to be perpetually armed against them, though they are at peace. we wondered that the answer of both houses had not been an order to send him to a mad-house. instead of this, the senate had echoed the speech with more servility than ever george iii. experienced from either house of parliament. "as to the executive, when i shall see the efforts of that power bent on the promotion of the comfort, the happiness, and accommodation of the people, that executive shall have my zealous and uniform support. but, when i see every consideration of the public welfare swallowed up in a continual grasp for power, in an unbounded thirst for ridiculous pomp, foolish adulation, or selfish avarice; when i shall behold men of real merit daily turned out of office for no other cause but independence of sentiment; when i shall see men of firmness, merit, years, abilities, and experience, discarded on their application for office, for fear they possess that independence; and men of meanness preferred for the ease with which they take up and advocate opinions, the consequence of which they know but little of; when i shall see the sacred name of religion employed as a state engine to make mankind hate and persecute one another, i shall not be their humble advocate." the two first counts contain the opinions of the writer on public and notorious acts. no act is charged upon the president and senate which is not notorious. it is not an attempt to impose upon the world a belief of facts which do not exist. he called upon gentlemen of the law and others to say whether this law was ever intended to extend to matters of opinion. he was astonished that a record of this kind should ever come from a court of the united states. the law declares that the publications which it proposes to punish, shall be false and scandalous. do gentlemen say opinions can be false which do not contain matter of fact? another part of the law gives to the party accused the privilege of giving the truth of the fact charged in evidence; but it is impossible that this can be done, where the matter charged consists of mere opinion; and juries could not possibly say whether an opinion be true or false. they can only determine whether or not it is their own opinion. if a man is to be subject to a prosecution for his opinions, what will be the consequence? we are, said mr. n., sent here to form an opinion, and, when we return home, we are expected to deliver that opinion to our constituents: but, if the propriety of our opinions are not to be judged of by ourselves, but by others, what will become of us? no man will be safe; for, though he may have formed his opinion as correctly as possible, if twelve men are to sit upon it, and, if it should not happen to be their opinion, or if they should not believe it to be his upon whom it is charged, he will be liable to a severe fine and imprisonment. is it proper, mr. n. asked, for legislators to be placed on this ground? or, will gentlemen say it was their intention to place themselves in this situation? they certainly will not; for who would consent to sit here, or of what use would it be, under such conditions? the third count is somewhat of a different nature. mr. n. said, in speaking on this subject, he was not giving his own opinion. if he were to give it, he should say he had no foundation for the fact here stated. there is no mode, however, of ascertaining whether or not it was the opinion of the member from vermont, and if it were his opinion, there being no mode of determining whether the opinion is correct or otherwise, it was impossible to act upon it. with respect to the first part of the third count, which speaks of "every consideration of the public welfare being swallowed up in a continual grasp of power, &c.," he supposed it would be agreed that it was an expression of the affection of the mind--an opinion upon the disposition discovered by actions. that part of it which relates to "men of real merit being turned out of office for no other cause but independence of sentiment, &c.," suggests a fact, but if this was his opinion, it is a matter so much connected with opinion, as to be scarcely distinguishable from it. and shall we be told, said mr. n., that a member ought to be banished from his seat for uttering a sentiment of this kind, after having been told by the gentleman from delaware, and others, that it was a complete disqualification for office for a man to hold a different political opinion from that of the executive? he trusted gentlemen could not seriously think so. for, since if the fact were true, and the member from vermont had adduced (as he believed he might have done) two or three instances of men being turned out of office merely on account of their political opinions, still the jury might have asked, "how do you know that the men displaced possessed superior talents to those who succeeded them?" this, though true, could not be proved, therefore the member from vermont could not have availed himself of the advantage held out by the law. gentlemen may say this is not necessary, as this law goes to many offences not capable of this proof; they may say that the british law on this subject goes to many others. but our law is not the same with the british law; there, though the libel be true, it is not less a libel, which is not the case under our law, which is an important distinction. it was clear, mr. n. said, that such parts of the counts as went to insinuate fact, were so connected with opinion, that it was impossible to separate them. it could not be said that the jury were competent to decide upon the truth of the case. the decision of twelve honest men on a point of fact, is, perhaps, the best security that can be devised for the security of justice; but if a man is to be convicted because his opinions and those of a jury are at variance, there is an end to all security. men's opinions are as various as their faces, and the truth or falsehood of those opinions are not fit subjects for the decision of a jury. upon what ground does the member from vermont stand? he is a representative of the people; and gentlemen could not shut their eyes against a notorious fact, viz: that the constituents of this member, with a full knowledge of this prosecution, have re-elected him; and if the people of vermont choose to have a person possessing these opinions to represent them, who have a right to say they shall not? indeed, if they are to be represented at all, they must be represented by the man whom they choose to elect. the gentleman from delaware had said, that all the offences of mr. lyon were greatly aggravated from his being a member of this house. mr. n. was of a different opinion. he thought it incumbent on a representative to disclose his opinions on public affairs to his constituents; and this disclosure will become more necessary, in proportion as such opinions may be offensive to the administrators of the government; as, when all goes on smoothly and well, there will be no necessity for calling the attention of the people to public concerns. the gentleman has also said, that it would be out of order to contest the truth of any thing contained in this record. he thought differently, and that if it was proper to act upon the subject at all, it would be proper to assign a day to have a fair hearing of the business, to enable the house to judge of the facts. for gentlemen will not say, that courts and juries are so infallible, that there is no case in which the decision of a court ought to be revised. if the member from vermont should think it necessary to demand this investigation, the house ought to submit to it. there was something in that record, mr. n. said, which was very singular indeed; something which requires investigation; for unless the fact is different from what his information made it, a most extraordinary circumstance was connected with the third count. it will be seen, from the showing of the record, that the letter upon which the charge is founded, was written before the passage of the law on which the offence was tried. if he was not misinformed, no evidence was adduced in court to show that mr. lyon did any act subsequent to the writing of his letter in the publication, and that though the thing appeared in print after the law took its effect, all that was done by the writer was done before the law was passed. he thought, therefore, before the house acted upon this subject, an inquiry ought to be had upon it. he did not know what were the wishes of the member from vermont himself on this subject; he had not put the question to him, because he thought there was no offence contained in the record of which the house ought to take notice. he would say farther, that believing most religiously that the law against which the member from vermont is said to have offended, is a violation of the constitution of this country, he could not without a breach of his oath, do any act to punish a breach of that law. mr. lyon said, he did expect that if he was to have had a second trial, he should have been at liberty to have adduced the evidence upon which a jury had already decided. gentlemen who have been able to obtain a copy of the record, which he, notwithstanding all his earnest desires to obtain it, had not been able to procure, might also have obtained a copy of the testimony on which this judgment was founded. mr. l. thought he had received an unjust trial and a hard sentence. he said unjust, because he was frowned upon by the judge in a very abrupt manner when he challenged two of the jury, which he had a right to do by a law of the state. the judge answered me, said mr. l., "you are unacquainted with the laws of the state." mr. l. observed that there is a law in the state of vermont for punishing persons who speak against the public authorities, which gives to the accused the privilege of challenging six of his jury. this privilege, said mr. l., i was denied, exclusive of the political packing of the jury who tried me. this is the kind of treatment i have received: but i shall submit to the decision of the house without occupying their time on my account, further than my enemies are desirous of so occupying it. mr. allen said, nothing but the respect which he entertained for the character who presided at the trial of the member from vermont would have drawn him from his seat on that occasion. but if he understood the member from vermont, he said he was frowned upon by the court when he challenged two of his jury, and having been present at the trial, he was able to speak to that fact. he understood the member to make a challenge, and the judge told him he did not know the laws of vermont; but so far from any harshness being used towards the member, he must say he never saw a trial more fairly conducted. he thought it did honor to judge paterson, who presided. when the member persisted in his opinion, that a law of the state gave him a right to challenge his jury, the judge replied, "if that was the law, it would require consideration;" and he inquired of the district judge if that was the law, who said it was not. as to the member's being precipitately tried, [mr. lyon observed, he did say so,] if ever there was a case deliberately tried, or in which unexampled indulgence was shown to the accused, it was this. the member from vermont had spoken of the jury being packed. he had seen this asserted in the papers, and the public ought to be informed that the charge is wholly untrue. the member from vermont must know it is untrue. the jury was drawn from the boxes as is usual, in consequence of an order made by the court in may, which pointed out the particular towns from whence the jury were to be drawn. mr. a. concluded by saying, he was sorry to find any man base enough to attack the gentleman who presided on this trial, as he believed his conduct to be unimpeachable. mr. bayard said, considering the lateness of the hour, he should limit his reply to a few observations. he did not know what would bind the gentleman from virginia; he denies the obligation of the law, and the credibility of the record. he could not expect, therefore, that he would be bound by the obligation of reason. the gentleman from virginia, in his defence of the member from vermont, has gone upon the ground that mere matter of opinion cannot be construed into a libel. he begged leave to differ from that opinion, for which there was not the least ground. four things, mr. b. said, are necessary to constitute a crime under the law in question: it is necessary that a publication should be seditious, false, scandalous, and malicious. when these four things appear, whether the publication consists in the assertion of matter of opinion, or matter of fact, it will be within the law, which makes no discrimination on the subject. mr. b. did not think it altogether in order to question in this place the regularity of the proceedings of a court of justice. according to the organization of this government, the powers of it are distributed, and the judiciary in its department is as sovereign as the legislature; and it is as improper for the legislature to question the proceedings of a court as it would be for a court in common cases, to question the obligation of a law. what has the fact been? the judgment of a court has decided, on the verdict of a jury given upon oath, that this case was within the law; and, after a judicial determination, is it for a member of this house to say that the case was not within the law? but mr. b. could conceive no idea more groundless than that of the gentleman from virginia, that mere matters of opinion are not grounds of charges under this law. this the gentleman had made his _alpha_ and _omega_. he wished to know how a distinction was to be made on this subject? if an opinion upon a fact be expressed, and that opinion is false, scandalous, and malicious, ought it not to be subject to prosecution? does the gentleman say opinions cannot be false? mr. b. said, he would put a case to the gentleman from virginia, without any intention of personal reflection, but merely for the sake of the argument. suppose any person were to say, that in _his opinion_, that gentleman was a _rogue_, or any other _opinion_ casting a gross imputation, would the offence be less, because he had, instead of saying expressly he was a rogue, merely given it as his opinion? but if the gentleman insisted opinions could not be false, how would he get rid of the conclusion? this, mr. b. conceived, might be sufficient to show that opinions may be false. or, suppose a man were to say that, in his opinion, another was a traitor, ought he not to be punished as severely as if he had asserted the thing as a fact? the intention and wisdom of this law was, mr. b. said, to caution men to be guarded in the publication of their opinions; since, by the expression of false opinions the minds of the people may be alienated from their government. suppose, for instance, that the gentleman from virginia, or the member from vermont, were to harangue the people, and say, in their _opinion_, this law is unconstitutional, and, therefore, not binding; that it ought not to be obeyed, but opposed by force; that it was made by men grasping after power, in defiance of the best interests of their country, in order to answer their own private views. although this all might be mere matter of opinion, would it not come within the meaning of the law in question? no man on earth, mr. b. said, would be more opposed to any measure for restraining the expression of honest and well-intentioned opinions, than himself. all that this law does, is to restrain false, malicious, and scandalous opinions. and will the gentleman from virginia say, that the good of the country, or its liberty, will be promoted by indulging in an expression of what is false, scandalous, and malicious? could this be liberty? he thought not. every man, under this law, has the liberty of publishing what he pleases, taking the responsibility upon himself for the truth of what he writes. if he writes only what is true, he is not liable to punishment; if what is false, and that maliciously, it is only reasonable he should be punished for his falsehood and malice. suppose a common case, that a man were to say that, in his opinion, another was insolvent, a bankrupt, or a thief, would he not be answerable for this opinion? he certainly would. and ought a man to be permitted to slander the government and not an individual? if the licentiousness of the press be allowed to go thus far, there will be nothing safe in character; it will always be in the power of a malicious person to rob the best men of their reputation with impunity. he presumed, therefore, that there was no ground for the distinction which the gentleman had attempted to draw. the gentleman from virginia had called upon the advocates of this resolution to show, that the member from vermont could be punished a second time. mr. b. did not know that the expulsion of a member from his seat could be considered in the light of a punishment. it was merely lopping off from the legislative body a rotten member who contaminates the whole system. this was done without regard to the member himself, but with a view solely to the health and purity of the body of which he is a member. the constitution, however, left no doubt on the subject. it is said that the member from vermont has been re-elected, since his offences were known. he wished the gentleman from virginia to say, how this fact was ascertained. at one moment he disputes the truth of the record, and says it cannot be considered as conclusive or creditable; yet, at another, he asserts a fact, upon the grounds of an extract of a letter, or a paragraph in a newspaper, of which this house could take no notice. the member was not re-elected to the present congress, nor was any return made of his re-election to the next. suppose he had a majority of votes at the late election, may it not hereafter appear that the election was carried by corruption or fraud, and that the member is not entitled to his seat? it is suggested as a fact that the letter of the member from vermont was written before the law passed; but the crime is not in the writing of the letter, but in the publication of it. there would have been no crime in scandalously writing, if he had not published the letter. the crime consisted not in the wickedness of his own heart, but the intention to corrupt others; the design to scatter firebrands through the community, with a view of exciting insurrections. if, therefore, he could have proved before the court and jury that he was not accessory to the publication after the passing of the law, he would doubtless have been acquitted; and though he did not think highly of the talents of that member, he supposed, if this had been the case, he would have had wit enough to have availed himself of it. he would say a word with respect to the consequences of the crime upon a member. in england, a member of the house of commons may be expelled for libellous matter. such was the case with mr. wilkes; though in this case, the transaction was afterwards expunged from the journals, it was not done upon the principle that the original expulsion was not justifiable, but because he had been expelled for the same offence, after he had been re-elected to the same parliament. believing, as he did, that the member in question disgraced the body to which at present he belonged, he hoped the resolution would be allowed to wash away the blot which marked and disfigured this branch of the government. mr. gallatin confessed that, though there were some reasons which diminished his surprise at seeing this resolution on the table, he did not expect to have heard it defended on the ground which the gentleman from delaware had taken in his last speech. he did not expect that when a judgment, awarded under the sedition law, was under consideration, a gentleman should rise and tell the house that this law applies to the publication of opinions as well as to that of facts; and it was less to be expected from the very gentleman who introduced an amendment into that law, providing that the truth of a charge may be given in evidence. his present declaration amounted to this: that those words were introduced in order to deceive the public, since they could be of no real use. the gentleman from delaware had constantly confounded matter of fact expressed, not positively, but only as the belief of the writer, and opinions or deduction from facts. if a man, with a view of defaming the government, publishes that, in his opinion, according to his belief, a certain fact does exist, which is susceptible of proof, and is found to be false, the publication, by the law, is undoubtedly a libel. thus, if a man says that, in his opinion, a man is a thief, a bankrupt, or insolvent, it is not less a libel, than if he said such a person was positively so, because these things are susceptible of proof. but, when we speak of opinion, as distinct from fact, we speak of opinions not susceptible of proof, because they depend upon reasoning, and different opinions may be deduced from the same facts; therefore, we say that such opinions are not matter for prosecution even under this law. but, the gentleman from delaware says that all opinions are liable to be prosecuted, provided that they can be proved to be false, scandalous, and malicious. proved false! and who are the judges? to be sure, twelve jurymen, who are sworn to give a verdict according to evidence. and how can the truth of things which cannot be proved by evidence, be determined by evidence? an opinion may be incorrect; and, if judged incorrect by the gentleman from delaware, it is, according to his reasoning, to be deemed false, and liable to prosecution. the house had been told by the gentleman from delaware, that it has nothing to do with this trial, any further than the record; that it ought to be taken as complete evidence of the facts which it contains, which ought not to be disputed. he also tells the house that courts of justice are as independent of the legislature, as the legislature of them; that this house has nothing to do with the crime; that it is the conviction only which they ought to take cognizance of. if, said mr. g., the gentleman from delaware had not brought forward the resolution now under discussion, we would have had nothing to do with the business. we did not bring forward the subject; we have nothing to do with it. mr. g. added, i believe i go too far when i say we have nothing to do with it; for i believe it was the duty of the house to have sent the sergeant-at-arms for the member from vermont, and demanded him from confinement, that he might have attended to his duty in this house. [the speaker said this was not now the question.] mr. g. knew this was not the question; he mentioned this to show that the house might have had something to do with the business. but we did not, said he, bring the subject before the house; and, if we have nothing to do with the decision of a court, that decision has nothing to do with us. if the member from vermont is to be expelled, he ought to be expelled, not because he has been convicted, but because he has committed a crime which renders him unfit to retain his seat. what is that crime? it is stated in the record: and, stated as it is, he did not believe it was sufficient to ground a motion of this kind upon. whatever is contained in these charges, which is capable of proof, ought to be taken into consideration, but not what is mere matter of opinion. it was generally allowed, he believed, that the paragraphs from what is called barlow's letter, are of this last description. with respect to the other part of the charge, viz: the extract from a letter said to be written by the member from vermont himself, to which he meant to confine his observations, he would beg leave to state it. [mr. g. read it.] mr. g. said, the whole of the paragraph was hypothetical; but, supposing that the member from vermont had declared it as his opinion "that the efforts of the executive power were not bent on the promotion of the comfort, the happiness, and the accommodation of the people," he wished to know whether this could be considered as a declaration of fact or opinion? there is, perhaps, no measure passed by congress, which one or other may not think will be contrary to the happiness, comfort, and accommodation of the people of the united states. we had, said he, the other day, the question of a navy before us, the establishment of which many believe is necessary for the promotion of the comfort, happiness, and accommodation of the people; whereas, in my opinion, and in the opinion of many others, it will produce the very reverse. how is this question to be decided? and yet it is known that the president, in his writings and speaking, has recommended the establishment of a navy; and persons writing and speaking against this system, which they ought to do, if they believe the system inimical to the united states, might be charged with bringing the congress and president into contempt. but, doubtless, this is a mere matter of opinion, and not susceptible of proof by evidence. in order to prove the truth of either assertion, you must bring forward a dissertation _pro_ and _con_. the next part of the paragraph, viz: "when i shall see every consideration of the public welfare swallowed up," &c. so far as relates to the first member of this sentence, he did not see how it could be proved. he was not of opinion that every consideration of the public welfare was swallowed up in a continual grasp for power; but he did believe that there was a constant disposition, not only in the executive, but in many gentlemen on this floor, to increase the power of the executive. [the speaker said, neither this remark, nor the observations on the navy, were in order.] mr. g. said, that he always wished strictly to adhere to order, and in order to avoid committing any further mistake, he desired to be informed why it was out of order? was the argument not in point; or was it the declaration of his own opinion, as he went along, that was out of order? he wished to know, as he meant to be guided by the rule adopted by the chair. [the speaker repeated that the gentleman from pennsylvania had been out of order.] mr. g. proceeded. with respect to that part of the paragraph which says, "when i shall see men of firmness, &c., discarded on their application for office," &c. this, said mr. g., is, in some degree, matter of fact, and in some degree, matter of opinion. it is a matter of fact, so far as that men of firmness, experience, &c., have been turned out of office; and matter of opinion as to what is said of men of meanness being preferred in their place. i do believe, said mr. g., that the first assertion is true; and what is here written is no more than an illustration of what has been declared upon this floor, that men of certain political opinions, however capable, experienced, firm, and virtuous they might be, were unfit to hold offices. this, mr. g. said, was the only fact which could be brought under the law, and he thought it a fact capable of being proved to be true. mr. g. adduced, as evidence of the fact, the cases of the late commissioner of revenue for the united states, and of the commissioner of loans for the state of new hampshire, who, he said, it was evident, were turned out of office on account of their political opinions. and he read, in support of his assertion, the publication of the late commissioner of loans of new hampshire. another part of this paragraph speaks of "an unbounded thirst for ridiculous pomp." this, said mr. g., is mere matter of opinion. take the member from vermont to the house of the president, and he may call its furniture and appendages, ridiculous pomp; take a member from a different part of the country, and he may declare every thing decent and plain; but take an overgrown nobleman from great britain into the house of the president, and he would set down every thing he saw as mean and selfish. but, i insist upon it, said mr. g., that matter of opinion ought not to be subject to cognizance by this law. what, said he, is the nature of the crime now proposed to be punished by the expulsion of the member from vermont? we are told that he has published and uttered false, seditious, and malicious writings; that though these writings may be only matter of opinion, yet if those opinions are false, they come under this law; and, also, that such writings have a tendency to stir up sedition and insurrection. mr. g. would not repeat what had been said as to the unconstitutionality of the law under which the member from vermont had been convicted; but this alone would be a sufficient reason for him to vote against the present motion. but, supposing the law constitutional, is the crime an infamous one? certainly not. it is a political crime, and will always be determined according to the situation of the parties at the time. for, said he, we may say as much as we please about the purity of our courts and juries, and of our own purity; decisions upon political questions will always be influenced by party spirit. it is we, said mr. g., that have introduced this spirit into the courts; and having given them political questions to decide, it need not be expected that courts will be free from party prejudice any more than others. therefore, the falsehood or maliciousness of a publication will be determined by the political opinion of the jury. as to the manner in which the trial of the member from vermont had been conducted, he knew nothing of it. he wished the gentleman from connecticut, (mr. allen,) who, it seems, was present at the trial, would inform the house what proof was adduced to the court to show that the letter of mr. lyon was published by him after the sedition law passed. the letter is dated the th of june, the law was passed on the th of july, and the letter was published in vermont on the th of july. he should be glad to know whether any evidence was adduced to show that mr. lyon did any thing relative to that publication, after writing the letter from philadelphia on the th of june? if not, it will appear strange, indeed, that he should have been punished for an act done prior to the passage of the law under which he was convicted. as to the manner in which the jury had been summoned, he supposed it had been done in the usual way. without saying, however, that the jury was packed, which he did not believe, yet, if the towns out of which the jury was selected, were the towns which had never given mr. lyon but one or two votes at his election, it necessarily results that the jury were his political enemies; and being called upon to try him for a political offence, they would, of course, convict him. mr. g. said, the lateness of the hour would prevent him from detaining the house longer. he would only observe that, considering that the member from vermont had been tried for a political offence, by a jury opposed to him in opinion, and upon a law passed on political ground at the last session; that he had been punished by an imprisonment of four months, and by a fine of one thousand dollars; that he had been deprived of his seat in the legislature for three months: he thought it would have been better not to have proposed this resolution. if this resolution should be adopted, it would follow, mr. g. said, that every member who shall write any thing which is contrary to the opinion of a majority of this house, whether what he writes be founded in truth or not, will be liable to be expelled, in order to purify the house. mr. g. thought persecution had followed the member from vermont long enough. every candid man must acknowledge that, if he has committed an offence, he has already been sufficiently punished by fine and imprisonment; to expel him from his seat, would carry with it an idea of persecution to the public, and to his constituents, that they would not be permitted to have a representative on this floor. he knew the circumstance of the member from vermont's having been re-elected could not be introduced as an argument in his favor, but it might serve to show that what he had suffered for was no offence in the eyes of his constituents. the question was put; when there appeared yeas and nays, as follows: yeas.--john allen, bailey bartlett, james a. bayard, jonathan brace, david brooks, christopher g. champlin, john chapman, james cochran, william craik, samuel w. dana, john dennis, william edmond, thomas evans, abiel foster, dwight foster, jonathan freeman, henry glenn, chauncey goodrich, william gordon, roger griswold, william b. grove, robert goodloe harper, thomas hartley, william hindman, hezekiah l. hosmer, james h. imlay, john wilkes kittera, samuel lyman, james machir, william matthews, lewis r. morris, harrison g. otis, isaac parker, josiah parker, thomas pinckney, john rutledge, jr., james schureman, samuel sewall, william shepard, thomas sinnickson, nathaniel smith, peleg sprague, george thatcher, richard thomas, mark thompson, thomas tillinghast, john e. van allen, robert waln, and john williams. nays.--george baer, jr., abraham baldwin, david bard, robert brown, samuel j. cabell, thomas claiborne, william charles cole claiborne, matthew clay, john clopton, thomas t. davis, john dawson, george dent, joseph eggleston, lucas elmendorph, william findlay, john fowler, nathaniel freeman, jr., albert gallatin, james gillespie, andrew gregg, john a. hanna, carter b. harrison, jonathan n. havens, joseph heister, david holmes, walter jones, edward livingston, matthew locke, nathaniel macon, blair mcclenachan, joseph mcdowell, anthony new, john nicholas, thompson j. skinner, samuel smith, william smith, richard sprigg, richard stanford, thomas sumter, abram trigg, john trigg, philip van cortlandt, joseph b. varnum, abraham venable, and robert williams. the speaker, declaring the state of the vote, said, the constitution requiring two-thirds of the members present to expel a member, the resolution is not carried. saturday, february . mr. j. parker, from the navy committee, reported a bill authorizing the augmentation of the marine corps; which was committed. monday, february . mr. gregg presented two petitions praying for a repeal of the alien and sedition laws; the one from cumberland county, signed by persons; the other from mifflin county, in pennsylvania, signed by persons. mr. gallatin presented another petition of the same kind from chester county, signed by persons. mr. livingston, one of a similar nature, signed by , citizens of new york. mr. heister, one of the same kind, from , inhabitants of berks county. mr. bayard, one from the inhabitants of newcastle county, state of delaware, signed by between and persons. mr. bayard and mr. brown each of them presented petitions to the same effect, signed by a small number of persons. the whole were referred as usual. on motion of mr. livingston, the petition presented some days ago from a number of alien irishmen against the alien bill, was also referred-- to . _alien and sedition laws._ on motion of mr. goodrich, the house went into a committee of the whole on the report of a select committee, on the petitions praying for a repeal of the alien and sedition laws; which was read by the chairman, as follows: the committee to whom was referred the memorials of sundry inhabitants of the counties of suffolk and queen, in the state of new york; of essex county, in new jersey; of the counties of philadelphia, york, northampton, mifflin, dauphin, washington, and cumberland, in pennsylvania; and of the county of amelia, in virginia; complaining of the act, entitled "an act concerning aliens," and other late acts of congress, submit the following report: [the report was a condensation of the arguments used in support of the two bills by the members who supported them, and was accompanied by three resolutions, offered for the adoption of the house.] impressed with these sentiments, the committee beg leave to report the following resolutions: _resolved_, that it is inexpedient to repeal the act passed the last session, entitled "an act concerning aliens" _resolved_, that it is inexpedient to repeal the act passed the last session, entitled "an act in addition to the act, entitled 'an act for the punishment of certain crimes against the united states.'" _resolved_, that it is inexpedient to repeal any of the laws respecting the navy, military establishment, or revenue of the united states. the question being upon agreeing to the first resolution declaring it to be inexpedient to repeal the alien law, mr. gallatin rose and spoke as follows: mr. chairman: this subject was so fully discussed during the last session, that i would not have addressed the committee on this occasion, did i not entertain some hope that the change of circumstances which has taken place since the laws were enacted, and above all, the sense which so many of our fellow-citizens have expressed on their propriety and constitutionality, may induce the house to reconsider their decision of last year. petitions, signed by near , freemen of this state alone, collected in a few counties and within a few weeks, have been laid on your table, earnestly requesting congress to repeal laws, at best of a doubtful nature, and passed under an impression of danger which does not now seem to exist, of general alarm, which has nearly subsided. sixteen hundred of my immediate constituents have joined in these petitions, and their opinion on this subject being the same which i have uniformly entertained, i feel it forcibly to be my duty to examine the reasoning used by the select committee who have reported against the repeal of the obnoxious laws. the act concerning aliens comes first under consideration. two laws were passed during the last session of congress on that subject, the one concerning aliens generally, and the other respecting alien enemies. no petition has been presented against the last, and it would remain in force even if the first should, agreeably to the request of the petitioners, be repealed. the petitions apply solely to those provisions of the first act which are not included in the last. the provision, therefore, complained of, and which is the subject-matter of the reference to the committee, is that which authorizes the president to remove out of the territory of the united states, "all such aliens, (being natives, citizens, denizens, or subjects of a nation which is _not_ at war with the united states, and which has _not_ perpetrated, attempted, or threatened any invasion or predatory incursion against the territory of the united states,) as he shall judge dangerous to the peace and safety of the united states, or shall have reasonable grounds to _suspect_ are concerned in any treasonable or secret machinations against the government thereof." this authorization is considered by the petitioners as unconstitutional-- st, because such power being neither among the specific powers granted by the constitution of the general government, nor necessary to carry into effect any of those specific powers, is, both by incontestable deduction, and by the th amendment, reserved to the individual states; d, because, even supposing such power to be by implication comprehended among those granted to the general government, its exercise is, for the present, expressly prohibited to that government by the section which provides that the migration or importation of such persons as any of the states shall think proper to admit shall not be prohibited by congress prior to the year ; and dly, because aliens are supposed to come under the general description of persons to whom, by the constitution, the right of a trial of all crimes by jury is secured. in answer to the first objection, it is not contended that the power of removing such aliens is specifically granted by the constitution. but it is insisted, first, that every nation has a power at will to admit, or to remove aliens; second, that this power is necessary and proper in order to carry into effect the specific powers vested in congress to declare war and to protect each state from invasion. to admit the first position in its full extent does not destroy the force of the objection; for that objection rests not on a supposition that the power of removing aliens does not exist in the nation; but on the principle that it is not one of those granted by the nation to the general government; that it is one of those intrusted by the nation to the governments of the individual states respectively. the second position is predicated on a construction of the clause of the constitution and an application of that construction to the act, which to me appear inadmissible. the expressions used in that clause are "necessary and proper." the idea conveyed by the word "proper" is implied in that of the word "necessary," for whatever is necessary must be proper. the addition of the word "proper" was therefore useless, unless designed more precisely to ascertain the meaning of the word "necessary," the better to prevent a construction "that by necessity nothing more was meant than propriety," and to establish, beyond contradiction, that whatever might by congress be thought proper, was not on that account to be judged necessary. hence the meaning of the word "necessary" is confined in that clause to its strict sense, to wit: the power of passing laws without which some of the powers delegated to congress could not be carried into effect. in the present case it cannot be said that a power generally to remove aliens, not belonging to a nation from which a war or invasion is apprehended, is necessary or even proper in order to protect the states against such a war or invasion. aliens individually may commit acts tending to assist the enemy, and, in such case, it would become necessary to punish them. should a body of armed aliens (the supposed case of the select committee) land with views evidently hostile, to whatever nation they might belong, the act itself would be an invasion, and the necessity of repelling, or if another expression is selected, of removing them, would be self-evident and immediately flowing from the specific power delegated to congress to protect the states against invasions. but it is preposterous to say that the necessity of a general removal of alien friends flows from the apprehension of an invasion. the law concerning aliens, however, does not designate the acts which shall establish the necessity of their removal individually. although they may not have been concerned in any machinations against government; although the machinations in which they may have been concerned shall not have tended to promote or assist an invasion; and although their machinations might be sufficiently prevented and punished in the common course of law; although, therefore, their removal may not be necessary to protect the states against an invasion; yet, by the present law, they are liable to be removed, if they shall be suspected of being concerned in those machinations. their having actually and individually committed certain acts is requisite to constitute that necessity which alone can justify the exercise of the power delegated by this law. and yet that removal, which, in order to be constitutional, should rest on its necessity, depends, by the provisions of this law, on the bare suspicion of a necessity. but necessity implies proof, and cannot rest on suspicion. the law cannot be supported by the constitution unless that instrument had declared that congress shall have power to pass laws which they may suspect to be proper or necessary in order to carry into effect certain specific powers delegated to them. but the law does not even confine its operation to cases when a war or invasion should be apprehended. supposing the alarms on that subject to be completely at an end, still the power remains with the president to remove aliens suspected by him to be concerned in secret machinations against government. the power delegated by this law is not applicable exclusively to cases where it may be thought necessary in order to carry into effect the power to protect states against an invasion. it is to apply generally and under color of its necessity for executing certain specific powers, it may be exercised in a case where that specific power, on which alone it rests, has itself, nothing on which to operate. although it may happen that there shall be no necessity to protect states against invasion, it will even then, according to this constructive doctrine, still be lawful to do an act which cannot be constitutional, except on account of its being necessary to protect states against invasion. in order, therefore, to support the constitutionality of the law, the select committee must suppose, in the first place, that congress may pass laws, without a certainty of their being necessary for carrying into execution some of the specific powers granted to them; that is to say, that congress have a right to pass laws which may be unnecessary for that purpose. in the next place, that if a certain law is necessary only for executing a constitutional measure of a temporary nature, that law may constitutionally be executed, although the temporary measure itself should not be executed at all; that is to say, that the incidental power may be exercised for a purpose different than that of executing the original power on which it rests. the application of that constructive doctrine to the sedition and alien laws justifies a conclusion that, if adopted, it will substitute in that clause of the constitution a supposed usefulness or propriety to the necessity expressed and contemplated by the instrument, and will, in fact, destroy every limitation of the powers of congress. it will follow that instead of being bound by any positive rule laid down by their charter, the discretion of congress, a discretion to be governed by suspicions, alarms, popular clamor, private ambition, and by the views of fluctuating factions, will justify any measure they may please to adopt; that, instead of being bound by a constitution, they may claim the omnipotence of a british parliament; that all the reserved powers of the people or of the states will be swallowed up at their pleasure by that undefined discretion; in a word, that the constitution itself, so far as respects a limitation of powers, is by that doctrine completely annihilated. even the positive checks, which, in a few instances, prohibit the exercise of certain powers, will not prove a sufficient guard against an inordinate appetite to legislate on some favorite subject. thus, in the case of the sedition law, the prohibitory clause, respecting an abridgment of the liberty of the press, is attempted to be construed away by star-chamber definitions, by exotic doctrines, which, if suffered to flourish, will overshadow and smother every plant of american growth; doctrines incompatible with the principles of a government elective in all its executive and legislative branches; of a government which the people, the sole fountain of power, cannot properly carry into execution, if the sources of information are shut up from them; if a free and full discussion of every public measure is at the will of those who enjoy only a delegated authority, checked and embarrassed by prosecutions for libels, grounded solely on the british system of hereditary prerogative. and thus, in the case of the alien law, it is said that the temporary prohibition enjoined on congress, to forbid the importation of persons, must be understood as applying only to slaves; and that a power to remove emigrants may be constitutionally exercised, though that of prohibiting their migration should be unconstitutional. the evidence of members of the convention which framed the constitution, has sometimes been offered to prove that that body by _persons_, meant _slaves_. but the evidence of those members cannot prove any thing beyond their own individual intention, or, at most, their belief of what might have been the intention of some other members. nor is, on any possible supposition, the intention of the convention itself of any importance to decide the true meaning of the constitution. for they were not the legislators who passed and ratified the act, but only the framers who drew the instrument and offered it for consideration. as well might the judges of the supreme court be induced in their decision on a point of law, to abandon the clear construction pointed out by the precise meaning of the words of the statute, on account of the supposed opinion of some one of the members of the committee of this house that had drafted the law, as we be guided by what was, at the time, the meaning of some of the gentlemen who drew the constitution. after a lapse of ten years, it is preposterous to receive parole evidence against a sacred record. are the people of america to be told, after a lapse of ten years, that the delegation of powers, which they sanctioned under the impression of what on its face appeared to be its meaning, is to receive a contrary construction, bottomed on private meaning, on the unknown opinion of the members of a body whose deliberations were secret? and if, even through mistake, those individuals adopted expressions which conveyed a different meaning from what they intended, is that supposed intention to prevail over the explicit sense of those expressions? but we are told by the select committee, that "there could not have been the least reason" for confining the restriction to the then existing states, and to a period of twenty years, had the restriction "been intended" to apply to all emigrants in general. here again, a supposed intention is brought as an argument against the general acceptation of the word "persons." the question is not, whether we are at a loss to find the reasons which dictated a modification of the restriction. yet, if we were to recur to suppositions, we might as well suppose that the then existing states, which alone formed the constitution, felt interested only for themselves, and not for future non-existing states; and that those states, who were interested in promoting the migration of free persons, were satisfied with the same regulation which satisfied those states who were apprehensive of an interference in the importation of slaves. but the only question is, whether modification is contradictory with the common acceptation of the word "persons," which, it will not be denied, in its natural sense, will apply to free as well as to the other description of individuals? whether there is any thing absurd or repugnant to common sense, in saying that congress shall not, for twenty years, prohibit the migration of free persons in the existing states? if there be nothing inconsistent in that provision, the modification of the restriction cannot modify and alter the meaning of the word "persons." was there any possibility of doubt on the sense of that word, it might be explained by other parts of the constitution and by other expressions in the clause itself. the d section of the st article of the constitution, speaking of the mode of ascertaining the respective numbers of the several states, declares that they shall be determined by adding to "the whole number of free persons" (including those bound to service for a term of years, and excluding indians not taxed) "three-fifths of all other persons." a sentence in which the word _persons_ is expressly applied first to freemen, and secondly to slaves. the prohibitory clause itself declares that the migration or importation of such persons as any of the states, &c., shall not be prohibited. the word "migration," as contradistinguished from "importation," clearly implies the free will of the person, and applies exclusively to free persons. the select committee have also informed us that the power to send off emigrants, who abuse the indulgence granted them to remain, is a very different thing from the power of preventing emigration; meaning, i suppose, that although congress might be forbidden by the constitution to prohibit migration, they may constitutionally send off such emigrants. was the power claimed by this law, that of punishing by transportation aliens convicted of certain offences, defined by the law, although the constitutional necessity of the mode of punishment would still remain to be proven, yet the argument of the committee would deserve some consideration. but it is denied that there is the least difference between a power of prohibiting emigration and that of sending off any alien at the will of the president, merely because he is suspected by that magistrate. the transportation of the emigrant does not rest on any act committed by him, but on the degree of suspicion entertained by the president. the removal, therefore, contemplated by the law, is not the special removal of certain emigrants, but a general power to remove all the emigrants, on suspicion, if the president shall please. i must confess that, to my understanding, that power to remove all emigrants would, if exercised, (and the law authorizes its general exercise,) amount precisely to the same thing with a general prohibition of emigration. so far is it true that the clause of the constitution admits of a construction which would defeat its object; that, at the end of it, we find a provision permitting congress to lay a duty of ten dollars, not on migration, but on the importation of persons. had it not been for that provision, congress could not even have checked that importation by any duty. as the clause now stands, they cannot check the migration by any duty whatever, nor the importation by a duty higher than ten dollars. and yet it is contended that notwithstanding so much caution, congress may, by a general power of sending off emigrants, evade the restriction laid upon them, and altogether prevent the effect of migration. finally, if there be any difference between the power of prohibiting migration and that of sending off emigrants, it consists in this, that it might have been apprehended that, under color of the general power over commerce given to congress, they might, by duties or other commercial regulations, have prevented or checked migration; but that there does not exist any power granted to the general government by the constitution which can rationally serve as a pretence to claim an authority to remove emigrants generally. and the only deduction to be thence inferred is, that the clause now under consideration, although it might be proper for preventing the exercise of the first power, was unnecessary for the last purpose--a conclusion to which i agree in its full extent, and which it seems to me i have already fully established in the first part of my arguments. the select committee (driven thereto, perhaps, by the weakness of the ground they were compelled to defend) have recurred to a last argument, the most extraordinary, perhaps, of any they have advanced. having said, in the former part of their report, that every nation had a right to send off aliens at will, they afterwards assert that, "as the constitution has given to the states no power to remove aliens," it is necessary to conclude that the power devolves to the general government. it is, i believe, the first time it has been suggested that the powers of the individual states were derived from the constitution of the united states. that constitution has heretofore been considered as a delegation of powers to the general government, and not to the several states. but the assertion of the committee may be shortly answered by reading the twelfth amendment to the constitution, viz: "the powers _not delegated_ to the united states by the constitution, _nor prohibited_ by it to the states, are _reserved_ to the states, respectively, or to the people." in order to prove that the powers are not reserved to the states, it is necessary to prove that they are delegated to congress; and the committee, with that kind of logic which pervades the whole of their report, in order to prove that powers are delegated to congress, assume the position that they do not belong to the states. the constitution declares that the powers not prohibited to the states are reserved to them, and the committee asserts that the powers not given to the states, are not reserved to them. it would seem, as the committee had been desirous of justifying, by their own arguments, what i have advanced, that the doctrine necessary to support the constitutionality of this law would infallibly swallow up all the powers of the several states. that the states had a right to legislate on this subject never was denied. it is a fact, that some of them have legislated upon it. virginia has passed an alien law, which has been quoted by the supporters of the law of congress. it was strange enough, that on a constitutional question, whether the united states or the several states had a right to pass such laws, the advocates for the right of congress should quote a law of one of the states, which proved the very reverse of their doctrine. but their object was to puzzle and confound, and not to enlighten the understanding; and if they meant to rescue the law of congress from the charge of impropriety and injustice, by the instance of that of virginia, they have been guilty of a gross misrepresentation; for the act of that state, so far from being similar to that complained of, is not a law concerning alien friends, but a law respecting alien enemies, perfectly similar to that of congress, of which no one complains, and which passed without opposition. to the argument against the law, drawn from that part of the constitution which secures the trial of all crimes by jury, the most satisfactory answer given by the committee is, that aliens not being parties to the constitution, have no rights under it. without entering into an examination of the constitutional question arising on that point, i will only remark, that the construction is harsh; and that, to transport emigrants, "merely from motives of policy," and "without their having committed any offence," is often unjust--always oppressive and cruel. the manner in which aliens have been invited to this country, and the peculiar situation in which they stand, justify the assertion. the constitution gives to congress no power over aliens, except that of naturalization. the power, therefore, remains with the states to give to aliens the rights of denizens. that power has not been exercised by that name; but it has, in fact, been carried into effect. not only in some states have aliens been enabled to purchase, to hold, to inherit, and to leave by will, real estate--a right which principally constitutes a denizen--but many have actually been admitted in some states, either by special acts of the legislature, or in conformity to former general laws, to all the rights of citizens of those states, so far as it was in the power of individual states to do it; that is to say, that they have received every right, but such as arise from naturalization--every right of denizens. on the other hand, the laws of the union have invited emigration, by holding out the prospect of being naturalized at the end of a period which, till nearly the time when the alien law passed, never exceeded five years. under these laws, emigrants have, by a formal declaration before our courts, given evidence of their intention of becoming citizens and of renouncing their former allegiance--a declaration almost tantamount to an actual renunciation. they have abandoned their native countries for ever; many of them have acquired lands, and married in america; most of them have here the whole of their property, or their only means of subsistence. under all these circumstances, it may be doubtful whether a great proportion of these aliens are not entitled to the rights of denizens; and if they are not so, by a strict construction of positive laws, at least, it can hardly be denied that the provisions of the law violate, in this respect, the dictates of humanity and justice. the policy of this measure seems to be defended by the select committee on the same ground which is to be a pretence and a justification for every act of domestic oppression, for every encroachment of power, for every new tax, for every extravagant loan, for every prodigal act of expenditure, for every increase of the navy, for every standing army which may be raised under the various names of permanent army, additional army, provisional army, eventual army, or _well-affected_ volunteers. the alien and sedition acts form, in the opinion of the committee, an essential part of our general system of defence against france. i do not mean to follow them, whilst they use, instead of arguments, the mere cant of the day. they cannot be serious when they tell us of the employment of the active talents of a numerous body of french citizens here as emissaries and spies. and if they are, does that committee mean to impose upon this house, as upon the people of some parts of the union? do we not know that, if there be any danger from france, the act respecting alien enemies is applicable to her citizens, and that the law now complained of respects alien friends, and was originally intended to operate, not against subjects of france, but against _irish_ emigrants and other subjects of great britain? do we not know that, notwithstanding all the clamor of last summer, and notwithstanding the two laws passed on that subject, not a single french citizen has been removed? still less can i suppose that the committee were in earnest when they pretended to believe that the united states offered as easy and alluring a conquest to france as egypt. they seem to have forgotten that egypt was governed and defended by mamelukes and inhabited by slaves; that the united states are _as yet_ inhabited and defended by the people themselves. but if the committee thought that the fear of an invasion did justify those laws, when passed, will they pretend to say that the danger, even in their opinion, now exists, and that the same necessity now justifies the continuance of the laws? it is not only against invasion that those laws are said to be necessary. we are told of a system which convulses the civilized world, and has shaken the fabric of society; of an unprecedented combination to establish new principles of social action, on the subversion of religion, morality, law, and government. if these are the dangers which threaten us, and if congress think themselves vested with all the powers which they may think expedient to repel them, i wish to know to what extent they may not legislate, and by what possible limitation they can be restrained, in their assumption of powers? there is not an individual on this floor, there is not a man of common understanding and common information in the nation, who, unless he is under the influence of the illusions of the new anti-republican fanaticism, or blinded by party spirit, does not know that these pretended dangers are, in america, the visionary phantoms of a disordered imagination. and i have taken notice of those sentiments merely to give an additional proof, that under pretence of preventing imaginary evils, an attempt is made to establish the omnipotence of congress, and substantial despotism, on the ruins of our constitution. is that a measure of security and general defence which puts a numerous body of aliens--aliens who are represented as so desperate and dangerous--under the absolute control of one man, which, by holding the rod of terror over their heads, and leaving their fate at his sole disposal, renders them complete slaves of the president, and makes them proper instruments for the execution of every project which ambition may suggest, which faction may dictate? is that a government of laws which leaves us no security but in the confidence we have in the moderation and patriotism of one man? and do the abettors of these laws forget that even that is precarious, and that the unlimited power which they think safely lodged in one individual may in a day be vested in another man in whom they do not place the same confidence? is that a measure of general defence which has diminished confidence in the government and produced disunion among the states and among the people? yet i am happy to find that even this law has produced such general dissatisfaction. i was the more alarmed on account of this law, because, attacking only aliens, for whom no immediate concern could be felt, it might the more easily become the vehicle to introduce doctrines and innovations which would hereafter serve as a precedent to attack the liberties of the citizens themselves. a pretence of general defence may justify oppressive measures against citizens as well as against aliens. although some nice distinctions may now be made in order to discriminate one class from the other, yet it must be remembered that the only security of citizens against unconstitutional measures consists in a strict adherence to the constitution; that their liberties are only protected by a _parchment_--by _words_--and that they may be destroyed whenever it shall be admitted that the strict and common sense of words may be construed away under the plea of some supposed necessity; whenever the constitution shall be understood and exercised as an instrument unlimited where it grants power, and nugatory where it limits power. we may feel alarmed when we see a committee of this house asserting that the powers not given to the states (and it may be added, by the same rule of construction, the powers not given to the people by the constitution) belong to the general government. we may feel alarmed when that committee insist that, although it is true that the trial of all crimes must be by jury, yet, to inflict a punishment when no offence--no crime--has been committed, is not a violation of the constitution; when the only distinction they apply to citizens consists in the difference of punishment, but not in a difference of the principle. we may feel alarmed when we find that congress have already acted on those principles towards citizens; that they have already passed another law--the sedition law--grounded on the same principles, on the same doctrine, or rather on the same abandonment of the explicit and evident sense of the constitution, which alone could justify the alien law. i hope--i trust--that the spirit which dictated both laws has subsided, even within these walls, and that the same congress who, under the impressions of a momentary alarm, which prevented a cool investigation, hastily adopted those two measures, will have courage enough to revise their own conduct, to acknowledge their own errors, and, by a repeal of the obnoxious acts, restore general confidence, union, and harmony, amongst the states and the people. when mr. gallatin had concluded, the question was taken and carried--yeas , nays . the d resolution being next in order, viz: _resolved_, that it is inexpedient to repeal the act passed the last session, entitled "an act in addition to the act, entitled an act for the punishment of certain crimes against the united states:" mr. nicholas rose and spoke as follows: mr. chairman--i am sorry to be obliged to rise at this late hour of the day, indisposed also as i find myself, to speak on this important question; but, since gentlemen are determined now to decide upon it, i must be indulged in making some observations upon it, previous to the question being taken. the select committee had very truly stated, that only the second and third sections of the act, in addition to the act for the punishment of certain crimes against the united states, are complained of--that the part of the law which punishes seditious acts is acquiesced in, and that the part that goes to restrain what are called seditious writings, is alone the object of the petitions. this part of the law is complained of as being unwarranted by the constitution, and destructive of the first principles of republican government. it is always justifiable, in examining the principle of a law, to inquire what other laws can be passed with equal reason, and to impute to it all the mischiefs for which it may be used as a precedent. in this case, little inquiry is left for us to make, the arguments in favor of the law carrying us immediately, and by inevitable consequence, to absolute power over the press. the case chosen for our first legislation, that of "false, scandalous, and malicious writings," is specious, and as likely as any can be to establish an interest in its favor; but when it is fairly examined, it will be found to operate on cases, which could not, at first view, be expected to come under it; to be the instrument of most unjust oppression, and to restrain that free communication of honest opinion which is the soul of the government. but when you come to inquire further, and learn, from the advocates of the law, the authority which they claim for passing it, you will find that the power claimed does not stop even with this law, mischievous as it may be, but that it extends to absolute and unlimited control. it is not pretended that the constitution has given any _express_ authority which they claim for passing this law, and it is claimed only as implied in that clause of the constitution which says, "congress shall have power to make all laws which shall be _necessary and proper_ for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the united states, or in any department or office thereof." it is, therefore, necessary to fix a just construction of this clause. that the powers of the federal government were intended to be limited, is universally admitted, in the abstract; is proved by every clause of the constitution, and is positively declared by the th amendment in these words: "the powers not delegated to the united states by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." the just construction of the constitution, if the clause respecting necessary and proper powers had been omitted, would have been the same that it ought to be with the addition; for there can be no doubt, that a grant of specified powers would have contained a grant of such power as is necessary to carry the specified power into effect, and therefore the declaration ought to make no difference, according to a well-known maxim. this was the understanding of all the friends of the constitution at its adoption, and the constitution ought now to be construed as if the clause had been omitted. but it is proper to examine the meaning of it, as expressed. it is clear, that this clause was intended to be merely an auxiliary to the powers specially enumerated in the constitution; and it must, therefore, be so construed as to aid them, and at the same time to leave the boundaries between the general government and the state governments untouched. the argument by which the select committee have endeavored to establish the authority of congress over the press, is the following: "congress have power to punish seditious combinations to resist the laws, and therefore congress must have the power to punish false, scandalous and malicious writings; because such writings render the administration odious and contemptible among the people, and, by doing so, have a tendency to produce opposition to the laws." it is expressly admitted by the committee, that the power to punish seditious combinations to resist the laws, is only derived, by construction, from the clause giving all necessary and proper powers before recited; and that there is no express power in the constitution to that effect. there is no dispute about this construction being just; but i contend that the inference from this implied power cannot be supported, viz: that congress have a power to punish seditious writings. the constitution says: "congress shall have power over all acts which hinder the execution," &c.; but, to make it support the construction of the committee, it should say that, "congress shall have power over all acts which are likely to produce acts which hinder the execution," &c. our construction confines the power of congress to such acts as immediately interfere with the execution of the enumerated powers of congress; because the power can only be necessary as well as proper, when the acts really would hinder the execution. the construction of the committee extends the power of congress to all acts which have a relation, ever so many degrees removed, to the enumerated powers, or rather to the acts which would hinder their execution. by our construction, the constitution remains defined and limited, according to the plain intent and meaning of the framers; by the construction of the committee, all limitation is lost, and it may be extended over the different actions of life as speculative politicians may think fit. the suggestion on which the authority over the press is founded, is, that seditious writings have a tendency to produce opposition to government. what has a greater tendency to fit men for insurrection and resistance to government, than dissolute, immoral habits, at once destroying love of order, and dissipating the fortune which gives an interest in society? the doctrine that congress can punish any act which has a tendency to hinder the execution of the laws, as well as acts which do hinder it, will, therefore, clearly entitle them to assume a general guardianship over the morals of the people of the united states. again: nothing can have a greater tendency to ensure obedience to law, and nothing can be more likely to check every propensity to resistance to government, than virtuous and wise education; therefore congress must have power to subject all the youth of the united states to a certain system of education. it would be very easy to connect every sort of authority used by any government with the well-being of the general government, and with as much reason as the committee had for their opinion to assign the power to congress, although the consequence must be the prostration of the state governments. but enough has been said to show the necessity of adhering to the common meaning of the word "necessary," in the clause under consideration, which is, that the power to be assumed must be one without which some one of the enumerated powers cannot exist or be maintained. it cannot escape notice, however, that the doctrine contended for, that the administration must be protected against writings which are likely to bring it into contempt, as tending to opposition, will apply with more force to truth than falsehood. it cannot be denied that the discovery of maladministration will bring more lasting discredit on the government of a country, than the same charges would if untrue. this is not an alarm founded merely on construction; for the governments which have exercised control over the press, have carried it the whole length. this is notoriously the law of england, from whence this system has been drawn; for there, truth and falsehood are alike subject to punishment, if the publication brings contempt on the officers of government. i have shown, as i promised, that the authority on which this act is supported, gives unlimited power over the press, as to its investigation of public affairs, which is its most important function; and i will now endeavor to show, that the effect of the present law is very little short of the complete restraint of all useful discussion on public men and measures. the law has been current by the fair pretence of punishing nothing but falsehood, and by holding out to the accused the liberty of proving the truth of the writing; but, it was from the first apprehended, and it seems now to have been adjudged, (the doctrine has certainly been asserted on this floor,) that matters of opinion, arising on notorious facts, come under the law. if this is the case, where is the advantage of the law requiring that the writing should be false, before a man shall be liable to punishment, or of his having the liberty of proving the truth of his writing? of the truth of facts there is an almost certain test; the belief of honest men is certain enough to entitle it to great confidence; but their opinions have no certainty at all. the trial of the truth of opinions, in the best state of society, would be altogether precarious; and, perhaps, a jury of twelve men could never be found to agree in any one opinion. at the present moment, when, unfortunately, opinion is almost entirely governed by prejudice and passion, it may be more decided, but nobody will say it is more respectable; chance must determine whether political opinions are true or false, and it will not unfrequently happen, that a man will be punished for publishing opinions which are sincerely his, and which are of a nature to be extremely interesting to the public, merely because accident, or design, has collected a jury of different sentiments. if the effect of the present law is to restrain the free communication of opinion, and its principle will justify any control government chooses to exercise over the press, an inquiry may safely be entered on, whether congress ought to possess the power, even if the clause giving necessary and proper power would extend to such remote cases? it is the more necessary to inquire into the usefulness of this power in the hands of congress, since the opinion is becoming current, that that alone will give congress a right to assume it, upon the principle that government must have a right to do every thing proper for its safety. this doctrine may be very fallacious, if not taken in the restricted sense to be found in the clause giving necessary powers. no government can assume a power not delegated, on pretence of its being necessary; for none have a right to judge of what is necessary but the makers of the constitution, otherwise all governments would be competent to make every alteration in a constitution they might think proper, and the constitution would rank with the laws, and not above them. for the execution of powers expressly given, there must have been some latitude allowed to those who were to execute them, the same in fact which is expressed in the clause respecting necessary powers. is the power claimed proper for congress to possess? it is believed not, and will readily be admitted, if it can be proved, as i think it can, that the persons who administer the government have an interest in the power to be confided, opposed to that of the community. it must be agreed that the nature of our government makes a diffusion of knowledge of public affairs necessary and proper, and that the people have no mode of obtaining it but through the press. the necessity for their having this information, results from its being their duty to elect all the parts of the government, and, in this way, to sit in judgment over the conduct of those who have been heretofore employed. the most important and necessary information for the people to receive is, of the misconduct of the government; because their good deeds, although they will produce affection and gratitude to public officers, will only confirm the existing confidence, and will, therefore, make no change in the conduct of the people. the question, then, whether the government ought to have control over the persons who alone can give information throughout a country, is nothing more than this, whether men interested in suppressing information necessary for the people to have, ought to be intrusted with the power, or whether they ought to have a power which their personal interest leads to the abuse of? i am sure no candid man will hesitate about the answer; and it may also safely be left with ingenuous men to say whether the misconduct which we sometimes see in the press, had not better be borne with, than to run the risk of confiding the power of correction to men who will be constantly urged by their own feelings to destroy its usefulness. the mode of thinking which countenances this law, and the doctrines on which it is built, are derived from a country whose government is so different from ours, that the situation of public officers ought to be very different. in great britain, the king is hereditary, and, according to the theory of their government, can do no wrong. public officers are his representatives, and derive some portion of his inviolability from theory, but more from the practice of the government, which has, for the most part, been very arbitrary. it was, therefore, of course, that they should receive a different sort of respect from that which is proper in our government, where the officers of government are the servants of the people, are amenable to them, and liable to be turned out of office at periodical elections. in great britain, writings are seditious, though they are true, if they tend to bring a public officer into contempt. in this country, it is seen that the same principle is contended for, and that in practice, with respect to matters of opinion, we have gone the whole length of the principle. how long can we expect to maintain the other distinctive qualities of the magistracy of the two countries, when this sameness is established? how long can it be desirable to have periodical elections, for the purpose of judging of the conduct of our rulers, when the channels of information may be choked at their will? but, sir, i have ever believed this question as settled by an amendment to the constitution, proposed with others, for declaring and restricting its powers, as the preamble declares, at the request of several of the states, made at the adoption of the constitution, in order to prevent their misconstruction and abuse. this amendment is in the following words: "congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and petition the government for a redress of grievances." there can be no doubt about the effect of this amendment, unless the "freedom of the press" means something very different from what it seems; or unless there was some actual restraint upon it, under the constitution of the united states, at the time of the adoption of this amendment, commensurate with that imposed by this law. both are asserted, viz: that the "freedom of the press" has a defined, limited meaning, and that the restraints of the common law were in force under the united states, and are greater than those of the act of congress; and that, therefore, either way the "freedom of the press" is not abridged. it is asserted by the select committee, and by every body who has gone before them in this discussion, that the "freedom of the press," according to the universally received acceptation of the expression, means only an exemption from all previous restraints on publication, but not to an exemption from any punishment government pleases to inflict for what is published. this definition does not at all distinguish between publications of different sorts, but leaves all to the regulation of the law, only forbidding government to interfere until the publication is really made. the definition, if true, so reduces the effect of the amendment, that the power of congress is left unlimited over the productions of the press, and they are merely deprived of one mode of restraint. the amendment was certainly intended to produce some limitation to legislative discretion, and it must be construed so as to produce such an effect, if it is possible. this is required in the construction of all solemn acts, but must be more particularly due to this on account of the various examinations it underwent, previous to its adoption. it was first recommended by the conventions of several states, was adopted by two-thirds of both houses of congress, and finally ratified by three-fourths of the state legislatures. to give it such a construction as will bring it to a mere nullity, would violate the strongest injunctions of common sense and decorum; and yet that appears to me to be the effect of the construction adopted by the committee. if subsequent punishments are sufficient to deter printers from publishing any thing which is prohibited, there is no stint to the power of congress; and yet, it appears to me that a limitation was clearly intended. i cannot doubt the power of government to bend printers to their will by subsequent punishments, when all other offences are restrained only in this way. government does not punish men for keeping instruments with which they can commit murder, but contents itself with punishing murder when committed. the effect of the amendment, says the committee, is to prevent government taking the press from its owner; but how is their power lessened by this, when they may take the printer from his press and imprison him for any length of time, for publishing what they choose to prohibit, although it may be ever so proper for public information? the result is, that government may forbid any species of writing, true as well as false, to be published; may inflict the heaviest punishments they can devise for disobedience; and yet we are very gravely assured that this is "the freedom of the press." but it is worth while to trace this definition to the place from whence it is taken, and inquire into the circumstances in which it is used. blackstone, in his commentaries on the laws of england, after stating the law respecting libels, which is, that every thing which brings a magistrate into contempt is punishable, whether true or false, goes on to say, that this law is not inconsistent with the liberty of the press; and then gives a definition of the liberty of the press in the manner it is used by the committee. the meaning of all blackstone has said is this, that the press has the proper degree of liberty in england, and that libels, whether true or false, ought to be punished there. let us apply what he has called a definition, in the way he used it, to the legislation of the united states. suppose the present question was, whether we should punish truth, as well as falsehood, in libels, would gentlemen venture to tell us that it was consistent with the freedom of the press, or that the degree of freedom proper for the united states would remain? i venture to say they would not. ought they, then, to support the doctrine which hereafter may be practised on to the full extent? is there not reason to believe gentlemen hope to conceal the full extent of their principles, by bringing them into operation only by degrees? but, sir, it is a manifest abuse of blackstone's authority to apply it as it has been here applied. he had advanced into the fourth volume of a panegyric on the laws of england, and after stating the law on this subject, makes a theory to justify the actual state of the law. it must be remarked, in his justification, that the nature of their government justifies more rigor than is consistent with ours, and that the existing law, of which he was writing the praise, had been greatly softened in practice, by public opinion. in this case, there was no danger of impairing the security to liberty, intended by the constitution; for england has no constitution but what may be altered by the parliament, and therefore no great precision was necessary with respect to general principles. indeed, his observations on this subject ought to be called a theory, and a theory adapted merely to his own country, and not a definition. very different are the circumstances in which his doctrine has been applied here. a restrictive clause of the constitution of the united states, by its application, is made to mean nothing, and when it is clearly the intention of the constitution to put, at least, some acts of the press out of the control of congress, by the authority of this writer, all are subjected to their power. but it is said, that the states have all adopted the same construction which is given to freedom of the press by the committee, for that all the state constitutions provide for it, and yet the law of libels remains part of their codes. if this is fact, about which however i am uninformed, it is easily to be accounted for. at the revolution, the state laws were either the law of england, or were built on it, and, of course, they would contain the monarchical doctrine respecting libels. when the state constitutions were formed, the old law was continued in force indiscriminately, and only a general exception made of what should be found inconsistent with the state constitutions. now, to prove that the states have considered the law of libels consistent with the freedom of the press, gentlemen should show that this law has been practised on since the revolution, and that the attention of the states had been called to it by its execution, and that it still remains in force. i believe this cannot be done. so far as i know, it has been a dead letter. i mean the law of libels against magistrates, and if so, the argument is reversed, and is wholly on my side. the terms of this law furnish one of the best proofs of the truth of my opinion; for the framers of it, wound up as they have been, in their notions about government, since the adoption of the state governments, endeavored to take a middle course between real liberty and the state law, which is supposed to continue in force, and have studiously endeavored to conceal that their doctrine leads to the same thing by constantly pretending that their law is to punish only falsehood. this is a plain admission, that even now, public opinion would not support what they pretend is the law of each state. but from the argument before urged, i think it must be admitted, that if the states had so understood it, the construction could not be extended to this amendment. no solemn instrument can be construed so as to destroy it. i have seen somewhere, and i beg leave here to remark on it, the authority of the convention who formed the constitution of virginia, quoted to justify this construction. that convention is said to have passed a law similar to the law of congress, after having provided for the liberty of the press in their bill of rights. let us examine that law. the first section is to punish those who shall "by any word, open deed, or act, advisedly and willingly maintain or defend the authority, jurisdiction, or power of the king, or parliament of great britain, heretofore claimed over this colony, or shall attribute any such authority," &c. this section, passed at the beginning of the most awful contest in which ever man was engaged, a contest for the right of self-government against one of the most powerful nations in the world, was to establish what? not the inviolability of the governor of the state, nor of the majority of either house of the legislature, but to punish men who should promote resistance to the right of the people to govern themselves, to the principle of the constitution, to the republican principle. so different is this from the object of the law of congress, that it would have been impossible to believe that they should have been compared, if we had not seen it done. all argument must be thrown away on gentlemen who do not feel the difference between the respect due to the constitution, to the right of self-government in the people, and that which is due to the organs of administration, who cannot only deserve contempt, but who are to be removed with disgrace, according to the constitution itself, when they misbehave. by the second section of this law, those were to be punished "who should maliciously and advisedly endeavor to excite the people to resist the government of the colony, or persuade them to return to a dependence on the crown of great britain, or maliciously and advisedly to excite or raise tumults and disorders in the state, or maliciously and advisedly terrify and discourage the people from enlisting in the service of the commonwealth, or dispose them to favor the enemy." the design of this section is apparently the same with the former. every act of ill-will to the existing government, is immediately followed by one tending to submission to great britain. these acts are, however, out of the question, for they belong to the class enumerated in the first section of the sedition law, which nobody wishes to repeal, as the committee declare. but if the law had any analogy to the law of congress, it would be improper to quote it; for it is well known that our revolution made a resort to expedients necessary in a variety of instances, which could not be justified by principle, and that for a time personal rights were compelled to bend before public necessity. a distinction is very frequently relied on, between the freedom and the licentiousness of the press, which it is proper to examine. this seems to me to refute every other argument which is used on this subject; it amounts to an admission that there are some acts of the press which congress ought not to have power to restrain, and that by the amendment they are prohibited to restrain these acts. now, to justify any act of congress, they ought to show the boundary between what is prohibited and what is permitted, and that the act is not within the prohibited class. the constitution has fixed no such boundary, therefore they can pretend to no power over the press, without claiming the right of defining what is freedom, and what is licentiousness, and that would be to claim a right which would defeat the constitution; for every congress would have the same right, and the freedom of the press would fluctuate according to the will of the legislature. this is, therefore, only a new mode of claiming absolute power over the press. but it is said, that the phraseology of the amendment proves that the framers of it considered the freedom of the press as limited, otherwise they would have used the same words in speaking of the freedom of the press which they use in speaking of religious establishments. this argument is certainly fanciful; but it shall be considered, as it is my design to leave no argument, which i recollect to have seen, unanswered. it is plain the writer of the amendment intended to indulge his copiousness of expression, or that he had been accustomed to use certain words in a particular connection. the amendment says, in speaking of religion, "congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." the change of expression, according to the argument, ought to have some new object; and yet there can be no doubt that if the word _prohibiting_ was dropped, the provision would be the same. but the argument will lose all force when the amendment is read to the end, and it seems to have arisen merely from the committee having stopped in the middle of it, and lost sight of the latter part. it says, "or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the government for a redress of grievances." the argument is that the word _abridging_, as it is distinguished from _respecting_, implies that the freedom of the press was before limited; but, if this is true, it must also be the case with the right of peaceably assembling and petitioning, &c. is this pretended, and may we hereafter expect to have a definition of the right of petitioning, which will put it also under the control of congress? i think i have answered every construction of the amendment which can prevent its being completely prohibitory of all legislation by congress on the subject of the press, unless there was some existing restraint under the constitution of the united states, at the time of adopting the amendment. to this inquiry i now proceed. it is said, there is a common law which makes part of the law of the united states, which restrained the press more than the act of congress has done, and that therefore there is no _abridgment_ of its freedom. what this common law is i cannot conceive, nor have i seen any body who could explain himself when he was talking of it. it certainly is not a common law of the united states, acquired as that of england was, by immemorial usage. the standing of the government makes this impossible. it cannot be a code of laws adopted because they were universally in use in the states, for the states had no uniform code; and if they had, it could hardly become, by implication, part of the code of a government of limited powers, from which every thing is expressly retained, which is not given. there never was a uniform code of laws at any time among the states. their settlement took place at different times, and the law of england was adopted up to the respective settlements, in the whole or by selection. virginia recognized the common law, properly so called, and the statutes to the th james i.; maryland, the common law, and statutes up to the time of her settlement; and south carolina, i am told, never acknowledged any of the english statutes to be in force, except what were specially adopted by law. with this dissimilarity at the commencement, there can be no doubt that the decisions of courts, and the statutes which were constantly passing, must have made the codes of the several states altogether unlike at the time of adopting the federal government. is it the law of england, at any particular period, which is adopted? it cannot be believed that this was a universal favorite; for it had been greatly altered in every state, to adapt it to their situation, and it cannot be believed that after altering it under the instruction of experience, it was intended to bring it again into force. but the nature of the law of england makes it impossible that it should have been adopted in the lump into such a government as this is; because it was a complete system for the management of all the affairs of a country. it regulated estate, punished all crimes, and, in short, went to all things for which laws are necessary. it might be more properly considered as the measure of the powers left with the states. but how was this law adopted? was it by the constitution? if so, it is immutable and incapable of amendment. in what part of the constitution is it declared to be adopted? was it adopted by the courts? from whence do they derive their authority? the constitution, in the clause first cited, relies on congress to pass all laws necessary to enable the courts to carry their powers into execution; it cannot, therefore, have been intended to give them a power not necessary to their declared powers. there does not seem to me the smallest pretext for so monstrous an assumption; on the contrary, while the constitution is silent about it, every fair inference is against it. it was thought necessary to adopt expressly many of the ancient and most valuable principles of the law of england, such as trial by jury, and the writ of _habeas corpus_; and wherever the constitution gives cognizance of crimes, which were known in the law, it requires congress to define them, and direct the punishment, except in the case of treason, which it defines itself. perhaps it may be said, that the law of england with respect to libel was in force in all the states, and that therefore it is to be considered as adopted. when we recollect what that law is, that it punishes truth as well as falsehood, and that the congress of did not think proper to enact its provisions in the full extent, it may be fairly denied that it could have accorded with the jealous republican temper of the convention who adopted the constitution. if the common law was adopted on this subject, it was adopted entire as it then existed, and must remain for ever unchangeable as part of the constitution. the power of juries must be the same that it was then, and no more, and the improvement which was immediately afterwards produced by public opinion in that respect, in england, will be denied to us, and we may even have to regret the want of some of the provisions of the present odious law; but there is too little reason for the suggestion of there being a common law in the united states, to need a refutation. if there was a uniformity in the law respecting libels, it is one of the strongest evidences of what was before said, that this whole doctrine of libels was obsolete; for nobody can doubt, after hearing what it is, that it must have undergone considerable changes, if it had ever been practised on. the committee seem to suppose, for i confess it is very difficult to comprehend this part of their argument, that the law of libels is adopted by that part of the constitution which extends the judicial power to cases of law and equity arising under the constitution; for this is the expression of the part referred to by them, and not "offences arising under the constitution," as they have quoted it. how this can be inferred, i cannot conceive. if the expression was "offences," as they assert, still it would mean offences on which congress was directed by the constitution to legislate; but, as the expression really is, the cases are innumerable which come within it. see "the federalist," vol. ii., for an explanation of this part of the constitution. it is there said: "it has been asked, what is meant by cases arising under the constitution, in contradistinction from those arising under the laws of the united states? all the restrictions on the authority of the state legislature furnish examples of it," &c. for the opinion of the same writer, as to the force of the common law in the united states, see same volume, page , and the two following pages, in which he answers the objection to an omission of its provisions, and admits that it is not adopted by the constitution. upon the whole, therefore, i am fully satisfied, that no power is given by the constitution to control the press, and that such laws are expressly prohibited by the amendment. i think it inconsistent with the nature of our government, that its administration should have power to restrain animadversions on public measures; and for protection from private injury from defamation, the states are fully competent. it is to them that our officers must look for protection of persons, estates, and every other personal right; and, therefore, i see no reason why it is not proper to rely upon it, for defence against private libels. the call for the question being loud, mr. mcdowell rose, and hoped the question would not now be taken, but that the committee would rise, it being now a late hour of the day, and he doubted not other gentlemen would wish to deliver their sentiments upon this important question; and he thought an hour or two of to-morrow might be well employed in the discussion of this subject--a subject which had been brought before the house by the people, and ought, therefore, to receive a full discussion. he moved the committee to rise. the question on rising, was put and negatived-- to . the question was then taken on the resolution, and carried, votes being in favor of it. the question was then taken upon the third resolution, which was carried without a division. the committee then rose, and the question being upon concurring in the agreement of the committee for the first resolution, mr. livingston entered upon a defence of the sentiments which he delivered when the passage of this law was under consideration, which, he said, had been much misrepresented; but, after making some progress in his observations, the speaker declaring them unconnected with the question before the house, he sat down, and the first resolution was decided by yeas and nays, and stood-- to , as follows: yeas.--john allen, george baer, jr., bailey bartlett, james a. bayard, jonathan brace, david brooks, stephen bullock, christopher g. champlin, john chapman, james cochran, william craik, samuel w. dana, john dennis, william edmond, thomas evans, abiel foster, dwight foster, jonathan freeman, henry glenn, chauncey goodrich, william gordon, roger griswold, william barry grove, robert goodloe harper, thomas hartley, william hindman, hezekiah l. hosmer, james h. imlay, samuel lyman, james machir, william matthews, daniel morgan, lewis r. morris, harrison g. otis, isaac parker, thomas pinckney, john read, john rutledge, jr., james schureman, samuel sewall, william shepard, thomas sinnickson, nathaniel smith, peleg sprague, george thatcher, richard thomas, mark thompson, thomas tillinghast, john e. van allen, peleg wadsworth, robert waln, and john williams. nays.--abraham baldwin, david bard, thomas blount, richard brent, robert brown, samuel j. cabell, thomas claiborne, william charles cole claiborne, matthew clay, john clopton, thos. t. davis, john dawson, george dent, joseph eggleston, lucas elmendorph, william findlay, john fowler, nathaniel freeman, jr., albert gallatin, james gillespie, andrew gregg, john a. hanna, carter b. harrison, jonathan n. havens, joseph heister, david holmes, walter jones, edward livingston, matthew locke, matthew lyon, nathaniel macon, blair mcclenachan, joseph mcdowell, anthony new, john nicholas, josiah parker, thompson j. skinner, samuel smith, william smith, richard sprigg, richard stanford, thos. sumter, abram trigg, john trigg, philip van cortlandt, joseph b. varnum, abraham venable, and robert williams. mr. mcdowell then moved an adjournment; which was negatived-- to . the question was then taken on the second resolution, upon which the yeas and nays were exactly the same as upon the first. the question on the third was concurred in, votes being for it. saturday, march . evening sitting. _law of retaliation._ mr. otis called the order of the day on the bill vesting the power of retaliation, in certain cases, in the president of the united states; when mr. dent moved to postpone the consideration of this bill until the next session of congress; which motion was negatived-- to . the house then went into a committee of the whole on this bill, and after some discussion, and an amendment being introduced into the preamble of the bill by mr. dayton, (the speaker,) to make it apply generally to any acts of severity that may be committed by the french republic in pursuance of any violent decree, instead of applying particularly to the decree declaring american citizens, found on board vessels of their enemy, pirates, and liable to suffer death, the committee rose, and the amendment was concurred in. the question being, "shall this bill pass?" mr. livingston complained that this bill went to place the power of life and death in the hands of the president, with respect to every frenchman in this country, in case the french government should commit any act of violence against one of our citizens. he doubted, indeed, whether he would not have this power, in case of any american citizen being killed in battle on board a british ship. the legislature, he said, had no right to vest this power, except in case of war; nor did he believe it would ever be exercised, if given. and as the decree complained of had been two years in existence without being carried into effect, he thought there was no need now to create an alarm about it. indeed, the last decree having been suspended, he considered the first to be so also. mr. edmond was sorry, at this late hour, to occupy a single moment of the time of the house; but he found himself called upon to say a few words. it was a painful reflection, he said, that any nation in the world should deliberately pass a legislative act for the purpose of authorizing the commission of murder; for the _arrêt_ of the french republic was nothing less than a law for putting innocent men to death. an instance like it could not be found on record. in time of war retaliation is found necessary to prevent the enormities of an enemy. indeed, the intention of retaliation is always to prevent cruelty. this decree was said to be suspended; but if it were not intended to give it future operation, it would have been repeated. it might be convenient to suspend the decree for a time; but when a nation is so depraved as to pass a decree of this kind, what security have we that the decree will not be brought into operation in the recess of congress. if it is not, the present law can have no effect. mr. e. believed no one but the gentleman from new york could have supposed that this law was meant to retaliate for men killed in battle. if he examines the bill, he will find that the person must have been put to death pursuant to a decree of the french republic. and whilst we suffer our humanity to be touched with respect to french citizens here, we ought not to forget american citizens, whose blood may be spilt in france under this decree. mr. gallatin observed, that three arguments had been used in favor of passing this bill. one of them was, that it would afford protection to our seamen; the second, to give sufficient cause of irritation by repelling every hostile measure of the french government by one of a similar nature; the third, to prevent the people of america having any belief in either the sincerity of france or the probability of a negotiation. mr. g. did not believe that this bill would give the protection expected to our seamen; and as to the power of retaliation, well knowing, both from the character of the president and the general character of america, that retaliation would be repugnant to his feelings, and the feelings of the public at large, he did not believe a single case would ever happen in which it would be exercised. what, said mr. g., would be the degree of proof necessary to carry into effect this law? a man must have been taken on board a british vessel, or some other vessel at war with france, and put to death or ill-treated by the french. it must also be proved to have been done in pursuance of a french decree. in the next place, he must be an american citizen, and have been compelled to go on board such ship; and mr. g. did not know how all this information was to come to the president. if, said mr. g., it be really our intention to give protection to our seamen, instead of authorizing the proposed retaliation, we ought to go to the source of the evil, and endeavor to prevent the impressment of our seamen by the british, which alone brought them into this situation. this bill does not comprehend any american who goes on board of a british ship of war voluntarily; they are not entitled to our protection by the law of nations; they must seek protection from the country under whose flag they sail. those american citizens only, therefore, who have been forced on board a british ship of war, and who have been obliged to fight their battles against their will, are by this bill to be protected, so far as retaliation can protect them. mr. g. said, he had been induced to mention this point, not only because it naturally flows from the subject, but from one of the documents which had been submitted to the house. he alluded to lord grenville's letter to mr. king, our minister at london. [mr. g. read an extract of that letter.] mr. g. observed, upon this document, that it contained a very extraordinary acknowledgment. lord grenville says, "the king feels the protection due to those who sail under his flag." thereby openly acknowledging that there are a number of american seamen who do sail under his flag. and, as not many of our seamen had selected his service in preference to that of their own country; as our own seamen, if left to their choice, would sooner sail on board of our own ships than those of his british majesty, it is therefore an explicit avowal of the impressment of american seamen. that identical document which communicates the offensive decree of france, is also the occasion of this bill. this acknowledgment, said mr. g., leads to more than one consequence. if we pass this bill, it will amount to this, that knowing american seamen were impressed by the british, the fact having been thus confessed, we choose rather to pass a retaliatory law against the french for punishing our seamen found in a situation into which they were arbitrarily forced by the british, than apply a remedy to the root of the evil. again, another part of this letter of lord grenville, when connected with this measure, made an extraordinary impression on his mind. the acknowledgment having been made, it might have been supposed lord grenville would have ordered all such american seamen to have been released; but he does not do this, but says the king will cause retaliation to be exercised. to do this might have some effect whilst these men remained on board of the king's ships; it would, therefore, increase his power, and prolong the time during which such seamen will remain on board. but lord grenville does not stop here. he says, the "king leaves it with the different powers to take measures accordingly." so that he gives us advice what we ought to do, and we are about to do it. mr. g. had said, this bill was not likely to produce any effect; yet, if it should be put in force, by referring once more to lord grenville's letter, it will appear that the retaliation of which he speaks is to be confined to french prisoners, whom the fortune of war had thrown into the power of great britain; and he believed the present law should be confined to persons who should be captured by vessels of the united states. and it would be most effectual in this way; because if it were to operate against other french citizens in this country, the french government would not be concerned about it, since ninety-nine out of a hundred of those citizens are probably emigrants, or persons for whose safety they have no interest. if by meeting every hostile act of the french government by a measure of a similar kind, we could render this country more respectable, mr. g. should be in favor of it; but, in the present case, he did not think the measure applicable. there was a great difference, he said, between measures of hostility and retaliation. measures of retaliation could do no good, except as preventives; and as the decree in question had already been two years in force without being carried into effect, it could scarcely be expected that it would now be exercised. it must be allowed, mr. g. said, that some change had taken place in our situation with respect to france; but it seemed as if gentlemen wished, by the passing of this bill, to take off any impression of this kind which might have been made on the people by the late appointment of ministers to treat with france. mr. g. did not mean to express any opinion on the probable issue of that nomination. he believed the president had taken certain measures; and that nothing which he could do or say would either accelerate or delay those measures. he wished to leave them uncontrolled, to have the effect they may, whatever it may be. yet, in relation to what had been said with respect to guadaloupe, he believed that captures had taken place; yet, when we speak of information, there was a letter written by one of the commanders of our vessels, which says, that a number of vessels go there for the purpose of being taken, in order to carry on a trade contrary to the laws of the united states. [the speaker called to order.] mr. g. said he was about to conclude. he considered this bill as calculated to have but little effect, and had it not been for the arguments of the gentleman from massachusetts, he should have been at a loss to have known for what reason it was passed. mr. dana said, "with what measure you mete, the same shall be measured to you again," was a doctrine long since established. it was a doctrine which injured man had assumed in all countries, and the justice of which had been universally admitted. an appeal to this national sentiment, and to the writers on this subject, would be a sufficient answer to the gentleman's humanity for frenchmen, to the forgetfulness of his fellow-citizens. the general principles of the law are too just to be questioned. the gentleman from pennsylvania, well knowing that the national feelings of man must approve of the principle, undertakes to distinguish away the subject. instead of coming forward to the point, he has gone into complaints against british inhumanity. but why speak of british inhumanity, if not to embarrass this bill? this bill is intended against the french nation. if the gentleman wished a similar law against the british, neither he nor his followers could be suspected of any attachment to that nation, which would have prevented him or them from bringing forward such a measure. the gentleman knew such a measure would be embarrassed with difficulties; and, if it failed, it would deprive him of the argument he now makes use of. shall we, said mr. d., because our seamen have been first injured by great britain, when france uses them still worse, abandon them? because they have been once injured with impunity, shall we turn our backs upon them for ever? the doctrine is too inhuman, too absurd, to be countenanced. the gentleman from pennsylvania assigns another reason against this bill. to make it effectual he says certain information must be given to the president, viz: that the person ill-treated is an american seaman; and that he has received his ill-treatment in pursuance of a decree of the french government. has the gentleman to learn that, when the officers of the french government do an act of violence, which the principles of humanity and the law of nations condemn, if the nation does not punish its officers for the act, it must be done in pursuance of the orders of government? the gentleman's other objection was honorable to americans. it was that the humanity of the president, and of the people of this country, would not suffer the law, if passed, to be carried into effect. mr. d. said it was difficult to reason on this subject, but, admitting the fact, it affords a decisive proof that this power will never be abused, and at the worst, the law could only be ineffectual, and it might have the good effect of preventing the unprincipled murder of our countrymen. the gentleman from pennsylvania had said that the decree of the british cabinet might have had some effect in procuring a suspension of the decree of the executive directory. [mr. gallatin denied having said that the french government had suspended their decree on account of the threats of the british. mr. king's first letter is dated the th of november, and his second, mentioning the suspension of the decree, the th, so that that was impossible.] the gentleman has taken an opportunity of referring to the note of lord grenville. if the gentleman was disposed to make a philippic against lord grenville, mr. d. said, he had no reason to vindicate him; but, when the gentleman went so far beside the question to do it, it showed he had little respect for his audience. but the gentleman from pennsylvania was certainly incorrect, when he said the note of lord grenville was a direct admission that impressed american seamen were held on board the british fleet. he would state a case in which american seamen would be liable to the effects of the french decree, where the british government could not be censurable. suppose an american vessel captured and plundered by the french, and some of our seamen, to escape the severities of a french dungeon, had escaped and got on board of a british ship of war, hoping by that means, in time, to get to their own country. such cases, he had no doubt, had happened, and in such, the gentleman must allow, our citizens must be liable to suffer as pirates, without any blame resting on the conduct of the british. mr. otis said, it had been so long unfashionable to vindicate the conduct of france, or to make apologies in her behalf, that those who now wished to do it, attempt to excite hatred against another nation. the gentleman from pennsylvania has gone altogether upon this principle. he has said but little against the principle of the bill. his only objection to it was that it was not sufficiently extensive. admitting the injuries to exist with respect to great britain, and that many of our seamen have been impressed by them, did the gentleman wish us to retaliate by impressing british seamen? no, he would be the first to oppose such a law; and yet this is the only just kind of retaliation that could be adopted, for he would not wish us, because the british have impressed our seamen, to put the first british subject we meet to death; and to talk of impressing their seamen, would be perfectly ridiculous. it was not incumbent upon him, mr. o. said, to enter into any argument to distinguish between the injuries which we have received from the french and british governments, nor to palliate the conduct of any nation which has done us wrong; but when things perfectly clear are violently distorted, to excite undue prejudices, with a view of diverting the attention of the house from the subject before them, it becomes necessary to notice the attempt. let it be granted that great britain impresses our seamen; she renounces every right to do so. she perseveres, it is true, in her right to reclaim her own seamen from on board our vessels, and in making this claim, some abuses may have taken place. if the gentleman from pennsylvania had seen fit to do justice to lord grenville, he would have turned to another document laid before congress by the secretary of state last year, wherein he says that great britain had never assumed the principle of impressing american seamen. his friend from south carolina (mr. pinckney) affirmed what he said, and showed that the great difficulty was in preventing false passports from being given. this was verified in the conduct of captain loring and the baltimore sloop of war. the difference, mr. o. said, between the conduct of france and great britain towards us was palpable. great britain never refused to rectify grievances; she never heaped outrages upon us. if she had, he should have been for vengeance and war against that country, and the cry would certainly have been echoed by the gentleman from pennsylvania. mr. o. said he disdained that sort of sensibility which his friend from connecticut (mr. dana) seemed to think redounded to the honor of the people of this country. he owned it would not wound his feelings, in the smallest degree, to see the law of retaliation executed upon any french citizen in america. if one american citizen fell a sacrifice to the decree of france, it would altogether absorb his sympathies for frenchmen. there is a french citizen, said he, now living in the neighborhood of new york, who originally came here as ambassador from the french republic; and i must say that i should not feel the least sensibility if he should fall a victim to this law! indeed, there were french citizens enough on whom to execute the law; though he joined gentlemen on all sides of the house in hoping that there would be no occasion to carry it into effect. the gentleman from new york says that a law of this kind ought not to be passed, except in time of war; and yet, said mr. o., the gentleman will not let us go to war, and in the mean time our citizens may suffer with impunity under the bloody decrees of france. but he believed congress had clearly the power, from those words of the constitution which say, "they shall grant letters of marque and reprisal"--reprisal, doubtless, not only against ships, but against property and persons, to pass a law of this kind. mr. o. thought it necessary, therefore, to show to the french republic that we are not negotiating through fear; that we are desirous of keeping peace with all the world, so long as we can do it consistent with our honor and independence; but no longer. mr. s. smith wished to have postponed this bill till the next session. he thought it improper as it originally stood; as the decree which was passed two years ago was never acted upon. indeed he had somewhere seen that american seamen were released on application of mr. skipwith, our consul in france. the bill, as amended, is far less objectionable, yet he wished it were postponed till next session, because he never wished to see a law of this kind on our code. he agreed with the gentleman from connecticut that it was legalizing murder. mr. s. believed the gentleman from massachusetts mistaken in many respects. he himself believed france was disposed to make peace. mr. s. proposed an amendment to the bill confining the retaliation to persons captured in pursuance of any of the laws of the united states. if this amendment was agreed to, the bill would be less exceptionable; for, though the gentleman from massachusetts had said he should not regret the murder of any french citizen, under this law, nothing surely but the heat of argument could have led him to say this; he must own he should: nor did he believe that that gentleman, or any other, could lay hold of an unfortunate frenchman, and put him to death, though one of our citizens might have suffered unjustly and cruelly in france. the amendment was carried. mr. macon did not wish to see this law in our code. in his opinion nothing but the utmost necessity ought to induce us to pass it. nor could he believe that the gentleman from massachusetts could see any man, even if taken in arms, put to death in cold blood! though it might be right to punish those who passed the decree, if they could be laid hold of, it was a mournful thing to retaliate upon innocent persons the offences of the guilty. the gentleman from connecticut had quoted a scriptural passage--"with the same measure that you mete, the same shall be measured unto you." in the same volume, mr. m. said, he would also find, "do unto others as ye would they should do unto you;" and a law of this kind could not be justified upon the latter principle. it is said we ought to show that we do not act from fear. he thought this one of the last measures the house should pass to evince that. mr. m. hoped, that on the last evening of the session, a bill of this kind would not be pressed. the members had heretofore been accustomed to part in good humor, at the close of the session, however they might have differed in the course of it. he hoped they should not now depart from this custom. he therefore moved to postpone the bill till next session. the question for postponement was negatived-- to . after a few observations from mr. mcdowell, against the bill, it was ordered to be read a third time and passed--yeas , nays . a motion was made by mr. livingston, to adjourn till ten in the morning, as it would be impossible to get through the business to-night, and he understood the senate were about to adjourn to that time. mr. dana proposed to adjourn till seven in the evening; but that motion being negatived, the house adjourned till ten o'clock on sunday morning. sunday morning, march . several reports were made by the committee of enrolment, and sundry messages communicated from the senate relative to the bills in their passage. _vote of thanks._ mr. champlin rose and addressed the house as follows: "sensible as i am of the importance of the duties that at all times attach to a gentleman who presides over the deliberations of this assembly, and more especially in times of imminent danger; impressed with the able and honorable manner in which those duties have been discharged by the gentleman who now fills the chair; and believing the sentiments i entertain on this occasion to be in perfect unison with those of every member of this house--i beg leave to submit a resolution expressive of the sense of the house on this subject:" he then moved the following resolution: "_resolved_, that the thanks of this house be presented to jonathan dayton, in testimony of their approbation of his conduct in discharging the arduous and important duties assigned him whilst in the chair." this motion was received by the clerk, and the question being put upon it by him, there appeared for it , against it . the resolution being carried, the speaker rose and addressed the house as follows: no language, gentlemen, can do justice to those feelings which this second vote of approbation of my conduct, after four years' presidency in the house of representatives, has excited in my breast. it would be unjust in me not to acknowledge, that to the support uniformly afforded, and to the confidence unremittedly reposed in me, rather than to any merit of my own, is to be ascribed the success with which you are pleased to declare that the duties of the chair have been executed. permit me to say, that far from being displeased, i have, on the contrary, been very much gratified at hearing that the resolution of thanks has not been passed, as a mere matter of form, unanimously. as in all public bodies, there have ever been found men whose approbation must be considered by the meritorious as a censure, so in this body, there are, unhappily, some whose censure will be regarded by all whose esteem i value, as the highest testimony of merit. about to abandon the seat which i have held in this branch of the general legislature for eight successive years, i take advantage of the moment which precedes our separation to bid you, gentlemen, an affectionate farewell. mr. macon moved the usual resolution appointing a joint committee with the senate, to inform the president, that congress is ready to adjourn without day, unless he has any further communication to make them; which being agreed to, messrs. otis, macon, and brooks, were appointed a committee on the part of this house. mr. otis, from the committee appointed to wait upon the president, informed the house that they had performed that service; and he informed them "that he had no further communication to make, except to express his wish for the health and happiness of the members, and a pleasant journey home to their families and friends." the speaker then adjourned the house without day. note. the fifth congress, the first under the administration of mr. john adams, was wholly occupied with measures of defence against france, and incurred debt and taxes in these preparations which greatly impaired its popularity, and contributed to the overthrow of the federal party: but there was great necessity for these exertions at that time, and both national honor, and national interest, and national safety required them to be made. besides the insults which went to our honor, and the depredations which affected our commerce, there were threats of attack and invasion not to be despised. the directory, inflated with the successes of buonaparte in italy, with the subjugation of several small powers, the transformation of several principalities and kingdoms into republics, the peace with the emperor of germany, the neutralization of some kingdoms and the alliance of others: exalted with so much success, and anxious to bring the united states into their system and especially into the war with great britain, had recourse to all the means of accomplishing its purpose--first, by entreaties; afterwards by insults and outrages; and finally by threats of war. it is difficult for general history to give a view of these proceedings, and it is only in contemporary sources that they can be adequately studied. the debates of congress are one, and the largest one, of these sources; documents on which the debates are founded are another: and it is often desirable, in after time, to produce these documents in greater extent than used in the debate. that is the case with these debates on french affairs during the time of which we speak, and the communications of our ministers sent to paris furnish the documentary evidence necessary to complete them--evidence too well known to require copious quotation at the time, but now little known to the subsequent generation. this note then, in the nature of an appendix to the debates of the fifth congress, will contain extracts from the dispatches of the ministers of that day: and first of general pinckney. arriving at paris the th of december , he immediately waited on the minister of exterior relations (citizen charles de la croix) in company with mr. monroe, according to an appointment previously made, and had an interview with him; of which he gives this account in a dispatch to mr. pickering, secretary of state: (_extracts only are given._) mr. monroe and myself, with my secretary, major rutledge, about two o'clock, waited upon m. de la croix, and i was introduced by mr. monroe as the person appointed as his successor. the minister at first received us with great stiffness, but afterwards, on our conversing on some general subjects, he unbent and behaved with civility; and, on receiving the official copies of our letter of credence and recall, said he would deliver them, without delay, to the directory. he desired major rutledge to let him have our names of baptism, and our ages, that cards of hospitality might be made out, which he said were necessary to reside here unmolested. this requisition was immediately complied with, and he promised to send the cards the next morning. when this interview was known, the reports which had been spread abroad before my arrival, of my not being received by the directory, vanished, and the general idea seemed to be that there would be no objection to receive me as minister from america. at o'clock, on monday, december , mr. prevost (mr. monroe's secretary) called upon me, and told me that mr. monroe had just received a letter from m. de la croix, and desired to know if i had received one. i said no. he then showed me m. de la croix's to mr. monroe, which was as follows: [_date, dec. ._ citizen minister: i hasten to lay before the executive directory the copies of your letters of recall, and of the letter of credence of mr. pinckney, whom the president of the united states has appointed to succeed you, in the quality of minister plenipotentiary of the united states near the french republic. the directory has charged me to notify you "that it will not acknowledge nor receive another minister plenipotentiary from the united states, until after the redress of the grievances demanded of the american government, and which the french republic has a right to expect from it." [_date, dec. ._ i waited until next morning, expecting to receive a notification from m. de la croix, when, not hearing from him, i wrote him the following letter: citizen minister: colonel monroe has been so good as to communicate to me your letter to him of the st frimaire, wherein you inform him that you had submitted to the executive directory his letters of recall, and my letters of credence as minister plenipotentiary from the united states of america, and that the directory had instructed you to notify him "qu'il ne reconnoitra et ne recevra plus de ministre plenipotentiaire des etats unis jusqu'après le redressement des griefs demandé au gouvernement americain, et que la république françoise est en droit d'en attendre." [that it will not acknowledge nor receive any minister plenipotentiary from the united states, until after the redress of the grievances demanded of the american government, and which the french republic has a right to expect from it.] this communication has filled me with real sorrow, as i am thoroughly convinced that the sentiments of america and its government--for they are one--are misunderstood, and that i am not permitted even to attempt to explain them, or, in the terms of my letters of credence, to endeavor "to efface unfavorable impressions, to banish suspicions, and to restore that cordiality which was at once the evidence and pledge of a friendly union." devoted, as i am, to the liberty, prosperity, and independence of my own country, the freedom, happiness, and perfect establishment of the french republic, have always been dear to me, and to have been instrumental in cementing the good understanding which, from the commencement of their alliance, has subsisted between the two nations, would have been the height of my ambition. i most fervently pray that there may be a speedy and candid investigation of those points in which you differ from us, that affection may banish distrust, and that the alliance of the two republics may be perpetual. in your letter to colonel monroe you do not desire him to make any communication to me, and i am indebted to his politeness for the knowledge i have of the intentions of the directory. i submit to you, citizen minister, that, as the letters of recall had been received by mr. monroe, and official copies of his letters of recall, and my letters of credence, had been delivered to you, that the sentiments of the directory should be communicated by you immediately to me, that i may, without delay, transmit them as from the executive of this republic to the government of the united states; and that i may be informed by you, whether it is the intention of the directory that i should immediately quit the territories of the republic, or whether i and my family may remain until i hear from my government. as i have not received the cards which, in your interview, you said i ought to possess in order to enable me to reside here, and that they should be transmitted to me next morning, i am the more doubtful on this subject than i should otherwise be. accept my best wishes. [_dec. ._ this letter i sent by major rutledge, who delivered it to m. de la croix, and made the following report of what passed between them, which he immediately reduced to writing: "i this day waited upon m. de la croix, the minister for foreign affairs, at two o'clock, as bearer of a letter from general pinckney. i was admitted immediately on sending in my name, and delivered the letter. having informed him from whom it came, and that there was a french translation annexed, he opened it and proceeded to read the letter in my presence, which, when he had finished, he desired me to return to general pinckney as his answer: that the executive directory knew of no minister plenipotentiary from the united states of america, since the presentation of mr. monroe's letters of recall, and that the executive directory had charged him to notify to mr. monroe (here he read the quotation contained in the letter) qu'il ne reconnoitra et ne recevra plus de ministre plenipotentiaire des etats unis, jusqu'après le redressement des griefs demandé au gouvernement americain, et que la république françoise est en droit d'en attendre. which notification the directory relied upon mr. monroe's imparting to his own government, as well as communicating to general pinckney." on the th of frimaire, ( th of december,) about three o'clock in the afternoon, a mr. giraudet called on me, and said he was chief secretary in the department of foreign affairs; that he came on the part of the minister of foreign affairs, to signify to me that, with respect to my letter to him, (which he produced, together with the translation,) he could not directly communicate with me on it, as such direct communication would be acknowledging me as minister, when the directory had determined not to receive me; that, as to the other part of my letter, relative to remaining here, that he supposed i was acquainted with the laws of france, as they applied to strangers. i told him that i was not acquainted with the local laws of the republic; he said that there was a decree which prevented all foreigners from remaining at paris without particular permission, which, as the directory did not mean to grant to me, of course the general law would operate. i answered, that i could not conceive the having a direct communication with me would involve the consequences he stated; that if mr. monroe had died before my arrival, the information that they would not acknowledge me, must, of course, have been made to myself. mr. monroe having received his letter of recall from our government, could not now act officially any more than if he had ceased to exist; that i was indebted to mr. monroe's politeness for the information i had received of the intention of the directory not to acknowledge me, but that he had not intended it as an official communication. that, with regard to the laws of france relative to strangers, the law which he had cited did not apply to the requisition of my letter, which was to know whether it was the intention of the directory that i should quit the territories of the republic; or whether i might remain here until i should hear from my government. he said he rather believed that it was the intention that i should quit the territories of the republic; but, as it admitted of a doubt, he would mention it to the minister, with whom he was to dine, and acquaint me with the result in the evening. i told him i should be obliged to him, should it be the intention of the directory that i should quit the republic, to inform me in what time i was to set out, as my baggage was not arrived from bordeaux; that i meant not to ask any personal favor, but to have the intention of the directory clearly expressed, as it related to me, in the situation in which i came to france. he said he would, and expressed a regret at being the bearer of disagreeable information, and then departed. his behavior and manners were very polite. in the evening, about eight o'clock, he returned, and informed me that, in answer to the doubt which had been entertained in the morning, (a doubt, he observed, which had proceeded from his own inattention to the words of m. de la croix,) the minister could only reply that he understood the directory to mean the territory of the republic, and not paris alone, which was to be quitted; that as to the time in which it was necessary to depart, the minister could not designate it, but that he would have another communication with the directory, and that their intentions should be made known to me in a more explicit manner upon both points; that, at the same time, he must inform me that, in all probability, m. de la croix would not be the organ through which they would be addressed, as the minister of the _police générale_ would be the officer under whose department my case would come. i replied that i apprehended m. de la croix was the proper organ through which information should come to me, as he knew the capacity in which i had come to france; whereas, the minister of police might regard me as a mere stranger, and throw me into confinement; that it was in the power of the directory to receive me, or not: but they could not divest themselves of the knowledge which they had of the public character in which i came to france; and that, in that character, i was entitled to the protection of the laws of nations, whether the directory received me or not. if they permitted me to remain until i heard from my government, i was under the protection of those laws; if they ordered me to quit the territories of the republic, i was still entitled to letters of safe conduct, and passports on my journey out; that this was the case even with ministers of belligerent powers, much more ought it to apply between us, who were at peace. since this conversation, i have not heard from the directory, or any of the ministers or their agents. my situation, as you may easily conceive, is unpleasant; but if i can ultimately render any services to my country, i shall be fully compensated: at all events, it shall be my study to avoid increasing the discontent of this government, without committing the honor, dignity, and respect due to our own. should i fail in doing this, or should i err in the measures i pursue to accomplish it, the failing will not be in my zeal, but should be charged to my want of ability. at present, i think the ground i have taken has puzzled them: they wish me gone, but they apprehend that it would be too harsh a measure to send off, in a peremptory manner, the minister of my country; though there is no saying what their conduct will ultimately be, as i am informed that they have already sent off thirteen foreign ministers: and a late emigrant, now here, has assured them that america is not of greater consequence to them, nor ought to be treated with greater respect, than geneva or genoa. those who regard us as being of some consequence, seem to have taken up an idea that our government acts upon principles opposed to the real sentiments of a large majority of our people, and they are willing to temporize until the event of the election of president is known; thinking that, if one public character is chosen, he will be attached to the interest of great britain; and that, if another character is elected, he will be (to use the expression of du pont de nemours, in the council of ancients) devoted to the interest of france; entertaining the humiliating idea that we are a people divided by party, the mere creatures of foreign influence, and regardless of our national character, honor, and interest. i have seen mr. monroe very often since my arrival: his conduct has been open and candid, and i believe he has made me every communication which he thought would be of service to our country. he undoubtedly felt himself hurt at his being superseded; but i am convinced he has not, on that account, left any thing undone which he thought would promote the objects of my mission. the directory and ministers had, for some time before they were informed of his removal, treated him with great coolness; but as soon as they heard of his recall, their attentions to him were renewed. should this government attempt to make any further communications to me, through him, he has promised me to inform them that he cannot comply with their desire, as his powers have ceased. i remain, with great respect, &c. [_dec. ._ major rutledge having called on the minister of exterior relations on another affair, and finished, inquired of the minister if he had heard any thing further from the directory, in relation to general pinckney's remaining where he was: "he answered, with marks of great surprise, that he thought he had already explained himself with sufficient clearness on the subject; that he had signified to general pinckney, long since, the impossibility of his staying; that he thought he had exercised much "condescendance" in having been so long silent; which he had been induced to do by general pinckney's having complained of the delay of his baggage, which, he supposed, must, by this time, have arrived from bordeaux; that, in short, he should be sorry if his further stay should compel him to give information to the minister of the police. to this i replied, that general pinckney had refused to regard himself in any other light than the one in which he had entered france, which had not been in a private capacity, but in a public character; which circumstance had been officially announced to the directory, by his having delivered to the minister of foreign affairs a copy of his letters of credence and by other acts. that this precluded all laws relative to strangers from operating on him, and put him under the protection of the law of nations, which he claimed in his favor. that mr. giraudet had taken leave with a promise to communicate to the minister of foreign affairs the ground which general pinckney had taken. that he returned again in the evening, and then said, that the minister would again lay general pinckney's letter before the directory, and that their intentions should be made known to him as soon as possible. all this had, no doubt, been faithfully related to him by his secretary. he answered that general pinckney must have mistaken mr. giraudet as to his intention of again laying his letter before the directory. i told him that it was impossible; for that i had been present at both conversations, in which the material points had passed in english, and been repeated in french. he then said mr. giraudet had acted without his authority. i replied, that general pinckney had, however, waited until this moment in expectation of hearing from him, agreeably to mr. giraudet's promise; that he was very far from intending to dispute the will of the executive directory; what he wanted was a communication of their wishes in writing. he said that it had already been given. i desired to know when; he answered in the notification which he had made, by their order, to mr. monroe; that it had contained their sentiments on mr. pinckney's staying, inasmuch as that his not being received, implied that he should depart. i denied that it was a fair deduction; he insisted that it was; i declared that it had not struck general pinckney or any person with whom he had conversed; but that, however, if such was the construction which he had put upon it, i flattered myself that he could have no objection to throwing his idea upon paper, that general pinckney might have something more substantial, than the authenticity of the word of his secretary to justify himself to his own government, for quitting a spot to which he had come in obedience to their orders. the minister here turned from me with some warmth, and said that he should do no such thing; that general pinckney might make his own deductions; he desired to have no more communication with him. i only replied by a bow, satisfied to end a conversation which had already lasted near half an hour; during which i had not been admitted to the honor of a seat." [_dec. ._ the written order to quit the territory of the republic did not come: general pinckney would not depart without it: the _police générale_ did not molest him; two months elapsed, when buonaparte having gained a great victory over the austrians in italy, the day after the arrival of the news of it in paris, he received the following notification from the minister, de la croix: "the executive directory has charged me to make known to you, that not having obtained special permission to reside at paris, you are amenable to the law which obliges foreigners to quit the territory of the republic. i had the honor of informing you near two months ago, by the principal secretary of my department, of the intentions of the government in this respect. i cannot dispense with notifying you of them to-day. receive, sir, &c." [_feb. , ._ to which general pinckney immediately returned this answer: citizen minister: i did not receive, until o'clock to-day, your note in date of the th inst., informing me that the directory had charged you to acquaint me, that not having obtained particular permission to reside at paris, i was subject to the law which obliged strangers to quit the territory of the republic. i intimated to you some time since, by the secretary general of your department, and by major rutledge, my secretary, that i deemed a notification of this sort, in writing, from you necessary, previous to my departure. having now received it, i shall, without delay, prepare to go, and, in the meanwhile, will be obliged to you for the necessary passports for myself and family, with our baggage, to quit the republic, in my way to holland. accept, citizen minister, &c. this notification was addressed to "_mr. pinckney, anglo-american_," upon which designation of his nationality, and the supposed motives for giving the order to depart so suddenly after having been so long delayed, general pinckney remarks: i should have made some observation on being termed anglo-american, but, on inquiry, i found it was customary to call all my countrymen so, to distinguish us from the inhabitants of st. domingo and the other french west india islands. i have received my passports, and shall, in two days, set out for amsterdam. i know not what has occasioned this determination of the directory after having permitted me to remain here so long a time from their refusal to acknowledge me. you will judge whether the answer of the senate and the house of representatives to the president's speech, and the late successes in italy have not concurred to occasion it. mr. de la croix assured major rutledge, that he acted by the express orders of the directory in this particular, and not from himself. general pinckney remained in holland till the autumn of ' , when _messrs._ marshall and gerry were joined with him in an extraordinary mission, and all three proceeded to paris. arrived there, they asked an interview with the minister of foreign relations, now changed to the astute and supple talleyrand--obtained it--and thus describe it in their dispatch to mr. pickering, the secretary of state: the minister, we found, was then engaged with the portuguese minister, who retired in about ten minutes, when we were introduced and produced the copy of our letters of credence, which the minister perused and kept. he informed us "that the directory had required him to make a report relative to the situation of the united states with regard to france, which he was then about, and which would be finished in a few days, when he would let us know what steps were to follow." we asked if cards of hospitality were in the mean time necessary? he said they were, and that they should be delivered to us; and he immediately rung for his secretary and directed him to make them out. this interview with talleyrand being over, a game of intrigue, impudence, venality and corruption was immediately commenced upon the american ministers, by the intimates and agents of talleyrand, which has but few parallels in history, and of which they give this account: on saturday, the th, major mountflorence (u. s. consul general in paris,) informed general pinckney that he had a conversation with mr. osmond, the private and confidential secretary of the minister of foreign affairs, who told him that the directory were greatly exasperated at some parts of the president's speech at the opening of the last session of congress, and would require an explanation of them from us. the particular parts were not mentioned. in another conversation on the same day, the secretary informed the major that the minister had told him it was probable we should not have a public audience of the directory till such time as our negotiation was finished; that probably persons might be appointed to treat with us, but they would report to him, and he would have the direction of the negotiation. the major did not conceal from mr. osmond his intention to communicate these conversations to us. in the morning of october the th, mr. w., of the house of ----, called on general pinckney and informed him that a mr. x., who was in paris, and whom the general had seen, * * * * was a gentleman of considerable credit and reputation, * * * * and that we might place great reliance on him. in the evening of the same day, mr. x. called on general pinckney, and after having sat some time, * * * * whispered him that he had a message from m. talleyrand to communicate when he was at leisure. general pinckney immediately withdrew with him into another room; and when they were alone, mr. x. said that he was charged with a business in which he was a novice; that he had been acquainted with m. talleyrand, * * * * and that he was sure he had a great regard for [america] and its citizens; and was very desirous that a reconciliation should be brought about with france; that, to effect that end, he was ready, if it was thought proper, to suggest a plan, confidentially, that m. talleyrand expected would answer the purpose. general pinckney said he should be glad to hear it. mr. x. replied that the directory, and particularly two of the members of it, were exceedingly irritated at some passages of the president's speech, and desired that they should be softened, and that this step would be necessary previous to our reception. that, besides this, a sum of money was required for the pocket of the directory and ministers, which would be at the disposal of m. talleyrand; and that a loan would also be insisted on. m. x. said if we acceded to these measures, m. talleyrand had no doubt that all our differences with france might be accommodated. on inquiry, m. x. could not point out the particular passages of the speech that had given offence, nor the quantum of the loan, but mentioned that the douceur for the pocket, was twelve hundred thousand livres, about fifty thousand pounds sterling. general pinckney told him, that his colleagues and himself, from the time of their arrival here, had been treated with great slight and disrespect; that they earnestly wished for peace and reconciliation with france; and had been entrusted by their country with very great powers to obtain these ends on honorable terms; that, with regard to the propositions made, he could not even consider of them before he had communicated them to his colleagues; that, after he had done so, he should hear from him. after a communication and consultation had, it was agreed that general pinckney should call on m. x. and request him to make his propositions to us all: and, for fear of mistake or misapprehension, that he should be requested to reduce the heads into writing. accordingly, on the morning of october , general pinckney called on m. x., who consented to see his colleagues in the evening, and to reduce his propositions to writing. he said his communication was not immediately with m. talleyrand, but through another gentleman in whom m. talleyrand had great confidence. this proved afterwards to be m. y. at six in the evening, m. x. came and left with us the first set of propositions, which, translated from the french, are as follows: "a person who possesses the confidence of the directory, on what relates to the affairs of america, convinced of the mutual advantages which would result from the re-establishment of the good understanding between the two nations, proposes to employ all of his influence to obtain this object. he will assist the commissioners of the united states in all the demands which they may have to make from the government of france, inasmuch as they may not be contradictory to those which he proposes himself to make, and of which the principal will be communicated confidentially. it is desired that, in the official communications, there should be given a softening turn to a part of the president's speech to congress, which has caused much irritation. it is feared, that in not satisfying certain individuals in this respect, they may give way to all their resentment. the nomination of commissioners will be consented to on the same footing as they have been named in the treaty of america with england, to decide on the reclamations which individuals may make on the government of france, or on french individuals. the payments which, agreeably to the decisions of the commissioners, shall fall to the share of the french government, are to be advanced by the american government itself. it is desired that the funds which, by this means, shall enter again into the american trade, should be employed in new supplies for the french colonies. engagements of this nature, on the part of individuals reclaiming, will always hasten, in all probability, the decisions of the french commissioners; and, perhaps, it may be desired that this clause should make a part of the instructions which the government of the united states should give to the commissioners they may choose. the french government desires, besides, to obtain a loan from the united states; but so that that should not give any jealousy to the english government nor hurt the neutrality of the united states. this loan shall be masked by stipulating, that the government of the united states consents to make the advances for the payment of the debts contracted by the agents of the french government with the citizens of the united states, and which are already acknowledged, and the payment ordered by the directory, without having been yet effectuated. there should be delivered a note to the amount of these debts. probably this note may be accompanied by ostensible pieces, which will guarantee to the agents the responsibility of the united states, in case any umbrage should cause an inquiry. there shall also be first taken from this loan certain sums for the purpose of making the customary distributions in diplomatic affairs." the person of note mentioned in the minutes, who had the confidence of the directory, he said, before us all, was m. talleyrand. the amount of the loan he could not ascertain precisely, but understood it would be according to our ability to pay. the sum which would be considered as proper, according to diplomatic usage, was about twelve hundred thousand livres. he could not state to us what parts of the president's speech were excepted to, but said he would inquire and inform us. he agreed to breakfast with mr. gerry the morning of the st, in order to make such explanations as we had then requested, or should think proper to request; but, on the morning of the th, m. x. called, and said that m. y., the confidential friend of m. talleyrand, instead of communicating with us through m. x., would see us himself and make the necessary explanations. we appointed to meet him the evening of the th at seven o'clock, in general marshall's room. at seven, m. y. and m. x. entered; and the first mentioned gentleman, being introduced to us as the confidential friend of m. talleyrand, immediately stated to us the favorable impression of that gentleman towards our country--impressions which were made by the kindness and civilities he had personally received in america. that, impressed by his solicitude to repay these kindnesses, he was willing to aid us in the present negotiation by his good offices with the directory, who were, he said, extremely irritated against the government of the united states, on account of some parts of the president's speech, and who had neither acknowledged nor received us, and consequently have not authorized m. talleyrand to have any communications with us. the minister therefore could not see us himself, but had authorized his friend m. y. to communicate to us certain propositions, and to receive our answers to them; and to promise, on his part, that if we would engage to consider them as the basis of the proposed negotiation, he would intercede with the directory to acknowledge us, and to give us a public audience. m. y. stated to us explicitly and repeatedly, that he was clothed with no authority; that he was not a diplomatic character; that he was not * * * * he was only the friend of m. talleyrand, and trusted by him: that, with regard to himself, he had * * * and he earnestly wished well to the united states. on reading the speech (mr. adams' to congress,) m. y. dilated very much upon the keenness of the resentment it had produced, and expatiated largely on the satisfaction he said was indispensably necessary as a preliminary to negotiation. "but, said he, gentlemen, i will not disguise from you that this satisfaction being made, the essential part of the treaty remains to be adjusted; il faut de l'argent--il faut beaucoup d'argent;" _you must pay money, you must pay a great deal of money_. he spoke much of the force, the honor, and the jealous republican pride of france; and represented to us strongly the advantage which we should derive from the neutrality thus to be purchased. he said that the receipt of the money might be so disguised as to prevent its being considered as a breach of neutrality by england; and thus save us from being embroiled with that power. concerning the twelve hundred thousand livres little was said; that being completely understood, on all sides, to be required for the officers of the government, and, therefore, needing no further explanation. these propositions, he said, being considered as the admitted basis of the proposed treaty, m. talleyrand trusted that, by his influence with the directory, he could prevail on the government to receive us. we asked whether we were to consider it as certain, that, without a previous stipulation to the effect required, we were not to be received. he answered that m. talleyrand himself was not authorized to speak to us the will of the directory, and consequently could not authorize him. the conversation continued until half after nine, when they left us; having engaged to breakfast with mr. gerry the next morning. october the st, m. x. came before nine o'clock; m. y. did not come until ten: he had passed the morning with m. talleyrand. after breakfast the subject was immediately resumed. he represented to us, that we were not yet acknowledged or received; that the directory were so exasperated against the united states, as to have come to a determination to demand from us, previous to our reception, those disavowals, reparations, and explanations, which were stated at large last evening. he said that m. talleyrand and himself were extremely sensible of the pain we must feel in complying with this demand; but that the directory would not dispense with it; that, therefore, we must consider it as the indispensable preliminary to obtain our reception, unless we could find the means to change their determination in this particular; that if we satisfied the directory in these particulars, a letter would be written to us to demand the extent of our powers, and to know whether we were authorized to place them precisely on the same footing with england. we required an explanation of that part of the conversation, in which m. y. had hinted at our finding means to avert the demand concerning the president's speech. he answered, that he was not authorized to state those means, but that we must search for them and propose them ourselves. if, however, we asked his opinion as a private individual, and would receive it as coming from him, he would suggest to us the means which, in his opinion, would succeed. on being asked to suggest the means, he answered, _money_; that the directory were jealous of its own honor and of the honor of the nation; that it insisted on receiving from us the same respect with which we had treated the king; that this honor must be maintained in the manner before required, unless we substituted, in the place of these reparations, something, perhaps more valuable, that was money. he said, further, that if we desired him to point out the sum, which he believed would be satisfactory, he would do so. we requested him to proceed; and he said that there were thirty-two millions of florins, of dutch inscriptions, worth ten shillings in the pound, which might be assigned to us at twenty shillings in the pound; and he proceeded to state to us the certainty that, after a peace, the dutch government would repay us the money; so that we should ultimately lose nothing, and the only operation of the measure would be, an advance from us to france of thirty-two millions, on the credit of the government of holland. we asked him whether the fifty thousand pounds sterling as a _douceur_ to the directory, must be in addition to this sum. he answered in the affirmative. we told him that, on the subject of the treaty, we had no hesitation in saying that our powers were ample; that, on the other points proposed to us, we would retire into another room, and return in a few minutes with our answer. we committed immediately to writing the answer we proposed, in the following words: "our powers respecting a treaty are ample; but the proposition of a loan, in the form of dutch inscriptions, or in any other form, is not within the limits of our instructions; upon this point, therefore, the government must be consulted; one of the american ministers will, for the purpose, forthwith embark for america; provided the directory will suspend all further captures on american vessels; and will suspend proceedings on those already captured, as well where they have been already condemned, as where the decisions have not yet been rendered; and that where sales have been made, but the money not yet received by the captors, it shall not be paid until the preliminary questions, proposed to the ministers of the united states, be discussed and decided;" which was read as a verbal answer, and we told them they might copy it if they pleased. m. y. refused to do so; his disappointment was apparent; he said we treated the money part of the proposition as if it had proceeded from the directory; whereas, in fact, it did not proceed even from the minister, but was only a suggestion from himself, as a substitute to be proposed by us, in order to avoid the painful acknowledgment that the directory had determined to demand of us. it was told him that we understood that matter perfectly; that we knew the proposition was in form to be ours; but that it came substantially from the minister. we asked what had led to our present conversation? and general pinckney then repeated the first communication from m. x., (to the whole of which that gentleman assented,) and we observed that those gentlemen had brought no testimonials of their speaking any thing from authority; but that, relying on the fair characters they bore, we had believed them when they said they were from the minister, and had conversed with them, in like manner, as if we were conversing with m. talleyrand himself; and that we could not consider any suggestion m. y. had made as not having been previously approved of; but yet, if he did not choose to take a memorandum in writing of our answer, we had no wish that he should do so; and further, if he chose to give the answer to his proposition the form of a proposition from ourselves, we could only tell him that we had no other proposition to make, relative to any advance of money on our part; that america had sustained deep and heavy losses by the french depredations on our commerce, and that france had alleged so [many] complaints against the united states, that on those subjects we came fully prepared, and were not a little surprised to find france unwilling to hear us; and making demands upon us which could never have been suspected by our government, and which had the appearance of our being the aggressing party. m. y. expressed himself vehemently on the resentment of france; and complained that, instead of our proposing some substitute for the reparations demanded of us, we were stipulating certain conditions to be performed by the directory itself; that he could not take charge of such propositions; and that the directory would persist in its demand of those reparations which he at first stated. we answered that we could not help it; it was for the directory to determine what course its own honor and the interests of france required it to pursue; it was for us to guard the interest and honor of our country. m. y. observed that we had taken no notice of the first proposition, which was to know whether we were ready to make the disavowal, reparations, and explanations, concerning the president's speech. we told him that we supposed it to be impossible that either he, or the minister, could imagine that such a proposition could require an answer; that we did not understand it as being seriously expected; but merely as introductory to the subjects of real consideration. he spoke of the respect which the directory required, and repeated that it would exact as much as was paid to the ancient kings. we answered that america had demonstrated to the world, and especially to france, a much greater respect for her present government than for her former monarchy: and that there was no evidence of this disposition which ought to be required, that we were not ready to give. he said that we should certainly not be received; and seemed to shudder at the consequences. we told him, that america had made every possible effort to remain on friendly terms with france--that she was still making them, that if france would not hear us, but would make war on the united states, nothing remained for us but to regret the unavoidable necessity of defending ourselves. [_oct. ._ no. . october , . about twelve we received another visit from m. x. he immediately mentioned the great event announced in the papers, and then said, that some proposals from us had been expected on the subject on which we had before conversed: that the directory were becoming impatient, and would take a decided course with regard to america, if we could not soften them. we answered, that on that subject we had already spoken explicitly, and had nothing further to add. he mentioned the change in the state of things which had been produced by the peace with the emperor, as warranting an expectation of a change in our system; to which we only replied, that this event had been expected by us, and would not, in any degree, affect our conduct. m. x. urged, that the directory had, since this peace, taken a higher and more decided tone with respect to us, and all other neutral nations, than had been before taken; that it had been determined, that all nations should aid them, or be considered and treated as their enemies. we answered, that such an effect had already been contemplated by us, as probable, and had not been overlooked when we gave to this proposition our decided answer; and further, that we had no powers to negotiate for a loan of money; that our government had not contemplated such a circumstance in any degree whatever; that if we should stipulate a loan, it would be a perfectly void thing, and would only deceive france, and expose ourselves. m. x. again expatiated on the power and violence of france; he urged the danger of our situation, and pressed the policy of softening them, and of thereby obtaining time. m. x. again returned to the subject of money. said he, you do not speak to the point; it is money: it is expected that you will offer money. we said that we had spoken to that point very explicitly: we had given an answer. no, said he, you have not: what is your answer? we replied, it is no; no; not a sixpence. he again called our attention to the dangers which threatened our country, and asked, if it would not be prudent, though we might not make a loan to the nation, to interest an influential friend in our favor. he said we ought to consider what men we had to treat with; that they disregarded the justice of our claims, and the reasoning with which we might support them; that they disregarded their own colonies, and considered themselves as perfectly invulnerable with respect to us; that we could only acquire an interest among them by a judicious application of money, and it was for us to consider, whether the situation of our country did not require that these means should be resorted to. he said that all the members of the directory were not disposed to receive our money; that merlin, for instance, was paid from another quarter, and would touch no part of the douceur which was to come from us. we replied, that we had understood that merlin was paid by the owners of the privateers; and he nodded an assent to the fact. he proceeded to press this subject with vast perseverance. he told us that we had paid money to obtain peace with the algerines and with the indians; and that it was doing no more to pay france for peace. to this it was answered, that when our government commenced a treaty with either algiers or the indian tribes, it was understood that money was to form the basis of the treaty, and was its essential article; that the whole nation knew it, and was prepared to expect it as a thing of course; but that in treating with france, our government had supposed that a proposition, such as he spoke of, would, if made by us, give mortal offence. he asked if our government did not know that nothing was to be obtained here without money? we replied, that our government had not even suspected such a state of things. he appeared surprised at it, and said, that there was not an american in paris who could not have given that information. the conversation continued for nearly two hours; and the public and private advance of money was pressed and re-pressed in a variety of forms. at length m. x. said that he did not blame us; that our determination was certainly proper, if we could keep it; but he showed decidedly his opinion to be that we could not keep it. he said that he would communicate, as nearly as he could, our conversation to the minister, or to m. y. to be given by him to the minister; we are not certain which. we then separated. on the d of october, m. z., a french gentleman of respectable character, informed mr. gerry, that m. talleyrand, minister of foreign relations, who professed to be well-disposed towards the united states, had expected to have seen the american ministers frequently in their private capacities; and to have conferred with them individually on the object of their mission; and had authorized m. z. to make this communication to mr. gerry. the latter sent for his colleagues; and a conference was held with m. z. on the subject; in which general pinckney and general marshall expressed their opinions, that, not being acquainted with m. talleyrand, they could not, with propriety, call on him; but that, according to the custom of france, he might expect this of mr. gerry, from a previous acquaintance in america. this mr. gerry reluctantly complied with on the d, and with m. z. called on m. talleyrand, who, not being then at his office, appointed the th for the interview. after the first introduction, m. talleyrand began the conference. he said that the directory had passed an arrêt, which he offered for perusal, in which they had demanded of the envoys an explanation of some part, and a reparation for others, of the president's speech to congress, of the th of may: he was sensible, he said, that difficulties would exist on the part of the envoys relative to this demand; but that by their offering money, he thought he could prevent the effect of the arrêt. m. z., at the request of mr. gerry, having stated that the envoys have no such powers, m. talleyrand replied, they can, in such a case, take a power on themselves; and proposed that they should make a loan. a courier arriving at this moment from italy, and m. talleyrand appearing impatient to read the letters, mr. gerry took leave of him immediately. he followed to the door, and desired m. z. to repeat to mr. gerry what he, m. talleyrand, had said to him. mr. gerry then returned to his quarters with m. z., took down the particulars of this interview, as before stated, sent for gens. pinckney and marshall, and read it to them in the presence of m. z., who confirmed it. generals pinckney and marshall then desired m. z. to inform m. talleyrand that they had nothing to add to this conference, and did not wish that the arrêt might be delayed on their account. october . m. x. again called upon us. he said m. talleyrand was extremely anxious to be of service to us, and had requested that one more effort should be made to induce us to enable him to be so. a great deal of the same conversation which had passed at our former interviews was repeated. he said that, without this money, we should be obliged to quit paris; and that we ought to consider the consequences: the property of the americans would be confiscated, and their vessels in port embargoed. we told him that, unless there was a hope of a real reconciliation, these evils could not be prevented by us; and the little delay that we might obtain would only increase them; that our mission had induced many of our countrymen to trust their vessels in the ports of france; and if we remained at paris, that very circumstance would increase their number; and, consequently, the injury which our countrymen would sustain, if france could permit herself so to violate her own engagements and the laws of nations. he expressed a wish, that m. y. should see us once more. we told him that a visit from m. y., as a private gentleman, would always be agreeable to us; but if he came only with the expectation that we should stipulate advances of money, without previously establishing a solid and permanent reconciliation, he might save himself the trouble of the application, because it was a subject we had considered maturely, and on which we were immovable. he parted with us, saying, if that was the case, it would not be worth while for m. y. to come. in the evening, while general pinckney and general marshall were absent, m. y. and m. x. called, and were invited by mr. gerry to breakfast with us the next morning. october . immediately after breakfast the subject was resumed. m. y. spoke without interruption for near an hour. he said that he was desirous of making a last effort to serve us, by proposing something which might accommodate the differences between the two nations; that what he was now about to mention, had not, by any means, the approbation of the directory; nor could m. talleyrand undertake further than to make from us the proposition to the directory, and use his influence for its success; that, last week, m. talleyrand could not have ventured to have offered such propositions; but that his situation had been very materially changed by the peace with the emperor; by that peace he had acquired, in a high degree, the confidence of the directory, and now possessed great influence with that body; that he was also closely connected with buonaparte and the generals of the army in italy, and was to be considered as firmly fixed in his post, at least for five or six months; that, under these circumstances, he could undertake to offer, in our behalf, propositions which, before this increase of influence, he could not have hazarded. m. y. then called our attention to our own situation, and to the force france was capable of bringing to bear upon us. he said that we were the best judges of our capacity to resist, so far as depended on our own resources, and ought not to deceive ourselves on so interesting a subject. the fate of venice was one which might befall the united states. the american ministers determined to have no more of these conferences, and broke them off altogether; but shortly after, they were approached indirectly and in a new way, as thus detailed by general pinckney to his government: on the th of december, m. x. called on me, in order, as he said, to gain some information relative to some lands in * * *, purchased by * * *, for whom * * *. soon afterwards, general marshall came in, and then mr. gerry's carriage drove into the yard. here is mr. gerry, said general marshall. i am glad of it, said m. x., for i wished to meet all of you gentlemen, to inform you that m. y. had another message to you from m. talleyrand. i immediately expressed my surprise at it, as m. talleyrand, m. y., and he, all knew our determination to have no further communication on the subject of our mission with persons not officially authorized. he replied, that determination was made six weeks ago; and it was presumed that we had changed our opinion. i said that i had not, and i did not believe my colleagues had. at that moment mr. gerry entered the room, and i privately acquainted him with the object of m. x.'s visit. general marshall, mr. gerry, and myself, then withdrew into another room, and immediately agreed to adhere to our former resolution. m. x. was then called in; when i acquainted him, in a few words, with our determination; and mr. gerry expatiated more at large on the propriety of our acting in this manner, and on the very unprecedented way in which we had been treated since our arrival. on the th of december, a lady, who is well acquainted with m. talleyrand, expressed to me her concern that we were still in so unsettled a situation; but, adds she, why will you not lend us money? if you would but make us a loan, all matters would be adjusted; and, she added, when you were contending for your revolution, we lent you money. i mentioned the very great difference there was between the situation of the two countries at that period and the present, and the very different circumstances under which the loan was made us, and the loan was now demanded from us. she replied, we do not make a demand; we think it more delicate that the offer should come from you: but m. talleyrand has mentioned to me (who am surely not in his confidence) the necessity of your making us a loan; and i know that he has mentioned it to two or three others; and that you have been informed of it; and i will assure you that, if you remain here six months longer, you would not advance a single step further in your negotiations without a loan. if that is the case, i replied, we may as well go away now. why that, possibly, said she, might lead to a rupture, which you had better avoid; for we know we have a very considerable party in america, who are strongly in our interest. the american envoys having repulsed all these attempts, and refused to listen longer to these intermediaries, two of them (messrs. pinckney and marshall) were furnished with their passports, and left france. mr. gerry remained, and underwent many attempts to be inveigled into a separate negotiation, all of which failed. in the mean time, (for half a year had now been consumed in this intrigue,) the despatches of the american ministers had become public, exciting every where odium upon the directorial government. the occasion required them to say something, which talleyrand undertook, and had the "unparalleled effrontery," as expressed by mr. pickering, to affect ignorance of the whole affair, to demand the names of the enigmatical personages, (x., y., z.,) and of the "_woman_" that reinforced them; and to pronounce the whole the imposture of some intriguers taking advantage of the state of isolation in which the ministers lived to try and wheedle them out of money. upon this disavowal, mr. pickering remarks: although the envoys' despatches, and the facts and circumstances hereinbefore stated, cannot leave a doubt that x., as well as y. and z., was well known to mr. talleyrand, it will not be amiss to add, that on the d of december, x., y., and z., dined together at mr. talleyrand's, in company with mr. gerry; and that, after rising from the table, the money propositions, which had before been made, were repeated, in the room and in the presence, though, perhaps, not in the hearing, of mr. talleyrand. mr. x. put the question to mr. gerry in direct terms, either "whether the envoys would now give the _douceur_," or "whether they had got the money ready." mr. gerry, very justly offended, answered positively in the negative, and the conversation dropped. mr. z., who has avowed himself to be mr. hauteval, was the person who first made known to the envoys the minister's desire to confer with them individually on the objects of their mission. he it was who first introduced mr. gerry to mr. talleyrand, and served as the interpreter of their conversations; and in his letter to mr. talleyrand, at the close of mr. gerry's document, no. , he announces himself to be the agent of the minister, to make communications to the envoys. the sensation which these details irresistibly excite is that of astonishment at the unparalleled effrontery of mr. talleyrand, in demanding of mr. gerry the names of x., y., and z., after y. had accompanied him on a visit to the minister, with whom the conversation detailed in the printed despatches then passed, and who then assured mr. gerry "that the information mr. y. had given him was just, and might always be relied on;" after z. had in the first instance introduced mr. gerry to the minister, and served as their mutual interpreter, and when the conversation between them had also been stated in despatches; and after x., y., and z. had all dined together with mr. gerry at mr. talleyrand's table, on rising from which x. and y. renewed the proposition about the money! the very circumstances of mr. talleyrand's being continued in office after the account of these intrigues had been published to the world is a decisive proof that they were commenced and carried on with the privity and by the secret orders of the directory. it was to accomplish the object of these intrigues that the american envoys were kept at paris unreceived six months after their credentials had been laid before the directory; and it was only because they were superior to those intrigues, and that no hopes remained of wheedling or terrifying them into a compliance, that two of them were then sent away, and with marks of insult and contempt. the directory at that time were: barras, merlin, siéyes, gohier, and roger ducos,--whose government buonaparte soon after overthrew, and drove the two first from france, with the epithet "_rotten_" applied to them. the american ministers were censured by some of their contemporaries for listening to these subaltern agents, but they had valid reasons for their conduct: first, to avoid the further threatened depredations on american commerce; and next, to unite their fellow-citizens at home by exposing the corruption of the (then) french government. sixth congress.--first session. begun at the city of philadelphia, december , . list of members. senators. _new hampshire._--john langdon, s. livermore. _vermont._--nathaniel chipman, elijah paine. _massachusetts._--samuel dexter, benjamin goodhue. _rhode island._--theodore foster, ray greene. _connecticut._--james hillhouse, uriah tracy. _new york._--john laurance, j. watson. _new jersey._--jonathan dayton, james schureman. _pennsylvania._--william bingham, james ross. _delaware._--henry lattimer, william h. willes. _maryland._--john e. howard, james lloyd. _virginia._--stevens t. mason, wilson c. nicholas. _north carolina._--timothy bloodworth, jesse franklin. _south carolina_--charles pinckney, jacob read. _georgia._--a. baldwin, james gunn. _tennessee._--joseph anderson, william cocke. _kentucky._--john brown, humphrey marshall. representatives. _new hampshire._--abiel foster, jonathan freeman, william gordon, james sheafe. _vermont._--matthew lyon, lewis r. morris. _massachusetts._--bailey bartlett, phanuel bishop, silas lee, levi lincoln, samuel lyman, harrison g. otis, john read, t. sedgwick, samuel sewall, george thatcher, joseph b. varnum, p. wadsworth, lemuel williams. _rhode island._--john brown, c. g. champlin. _connecticut._--jonathan brace, samuel w. dana, john davenport, william edmond, c. goodrich, elizur goodrich, roger griswold. _new york._--theodore bailey, john bird, william cooper, lucas elmendorph, henry glenn, e. livingston, jonas platt, john smith, john thompson, philip van cortlandt. _new jersey._--john condit, franklin davenport, james h. imlay, aaron kitchell, james linn. _pennsylvania._--robert brown, albert gallatin, andrew gregg, john a. hanna, thomas hartley, joseph heister, john w. kittera, michael leib, peter muhlenberg, john smilie, richard thomas, robert wain, henry woods. _delaware._--james a. bayard. _maryland._--george baer, gabriel christie, william craik, john dennis, george dent, joseph h. nicholson, samuel smith, john c. thomas. _virginia._--samuel j. cabell, matthew clay, john dawson, john eggleston, thomas evans, samuel goode, edwin gray, david holmes, john geo. jackson, henry lee, john marshall, anthony new, john nicholas, robert page, josiah parker, levin powell, john randolph, abram trigg, john trigg. _north carolina._--willis alston, joseph dixon, william b. grove, archibald henderson, william h. hill, nathaniel macon, richard d. spaight, richard stanford, david stone, robert williams. _south carolina._--r. g. harper, benj. huger, abraham nott, thomas pinckney, john rutledge, thomas sumter. _georgia._--james jones, benjamin taliaferro. _tennessee._--william c. c. claiborne. _kentucky._--thomas t. davis, john fowler. proceedings in the senate. monday, december , . the first session of the sixth congress, conformably to the constitution, commenced this day, and the senate assembled, in their chamber, at the city of philadelphia. present: john langdon, from new hampshire. benjamin goodhue, from massachusetts. theodore foster, from rhode island. james hillhouse and uriah tracy, from connecticut. john laurance and james watson, from new york. william bingham, from pennsylvania. humphrey marshall, from kentucky. jacob read, from south carolina. james gunn, from georgia. joseph anderson, appointed a senator by the state of tennessee, for the remainder of the term for which their late senator, andrew jackson, was appointed; abraham baldwin, appointed a senator by the state of georgia; john brown, appointed a senator by the state of kentucky; samuel dexter, appointed a senator by the state of massachusetts; samuel livermore, appointed a senator by the state of new hampshire; and william hill wells, appointed a senator by the state of delaware; severally produced their credentials, and took their seats in the senate. the vice president being absent, the senate proceeded to the election of a president _pro tempore_, as the constitution provides, and samuel livermore was chosen. _ordered_, that mr. read administer the oath required by law to the president of the senate _pro tempore_. the president administered the oath, as the law prescribes, to messrs. anderson, baldwin, brown, dexter, and wells. _ordered_, that the secretary wait upon the president of the united states, and acquaint him that a quorum of the senate is assembled, and that, in the absence of the vice president, they have elected samuel livermore, president of the senate _pro tempore_. _ordered_, that the secretary acquaint the house of representatives that a quorum of the senate is assembled and ready to proceed to business, and that, in the absence of the vice president, they have elected samuel livermore, president of the senate _pro tempore_. _resolved_, that each senator be supplied, during the present session, with three such newspapers, printed in any of the states, as he may choose, provided, that the same be furnished at the rate usual for the annual charge of such papers. a message from the house of representatives informed the senate that a quorum of the house is assembled, and have elected theodore sedgwick their speaker. _ordered_, that messrs. read and bingham, be a committee on the part of the senate, together with such committee as the house of representatives may appoint on their part, to wait on the president of the united states, and notify him that a quorum of the two houses is assembled, and ready to receive any communications that he may be pleased to make to them. the president communicated a letter signed john trumbull, presenting to the senate of the united states impressions of two prints of the american revolution, which he had lately caused to be published; and the letter was read. _ordered_, that it lie on the table. the senate adjourned to o'clock to-morrow morning. tuesday, december . william cocke, appointed a senator by the state of tennessee, and james schureman, appointed a senator by the state of new jersey, in the room of john rutherfurd, resigned, severally produced their credentials, were qualified, and took their seats in the senate. henry latimer, from the state of delaware, and james ross, from the state of pennsylvania, severally attended. a message from the house of representatives informed the senate that a quorum of the house is assembled, and have appointed a joint committee on their part, together with such committee as the senate may appoint on theirs, to wait on the president of the united states, and notify him that a quorum of the two houses is assembled, and ready to receive any communications that he may be pleased to make to them. mr. read reported from the joint committee appointed for the purpose, that they had waited on the president of the united states, and had notified him that a quorum of the two houses of congress are assembled; and that the president of the united states, acquainted the committee, that he would meet the two houses, this day, at o'clock, in the chamber of the house of representatives. a message from the house of representatives informed the senate that the house are now ready to meet the senate, in the chamber of that house, to receive such communications as the president of the united states shall be pleased to make to them. whereupon the senate repaired to the chamber of the house of representatives, for the purpose above expressed. the senate then returned to their own chamber, and a copy of the speech of the president of the united states, this day addressed to both houses of congress, was read: _gentlemen of the senate, and gentlemen of the house of representatives:_ it is with peculiar satisfaction that i meet the sixth congress of the united states of america. coming from all parts of the union, at this critical and interesting period, the members must be fully possessed of the sentiments and wishes of our constituents. the flattering prospects of abundance, from the labors of the people, by land and by sea; the prosperity of our extended commerce, notwithstanding interruptions occasioned by the belligerent state of a great part of the world; the return of health, industry, and trade, to those cities which have lately been afflicted with disease; and the various and inestimable advantages, civil and religious, which, secured under our happy frame of government, are continued to us unimpaired, demand, of the whole american people, sincere thanks to a benevolent deity, for the merciful dispensations of his providence. but, while these numerous blessings are recollected, it is a painful duty to advert to the ungrateful return which has been made for them, by some of the people in certain counties of pennsylvania, where, seduced by the arts and misrepresentations of designing men, they have openly resisted the law directing the valuation of houses and lands. such defiance was given to the civil authority as rendered hopeless all further attempts, by judicial process, to enforce the execution of the law; and it became necessary to direct a military force to be employed, consisting of some companies of regular troops, volunteers, and militia, by whose zeal and activity, in co-operation with the judicial power, order and submission were restored, and many of the offenders arrested. of these, some have been convicted of misdemeanors, and others, charged with various crimes, remain to be tried. to give due effect to the civil administration of government, and to ensure a just execution of the laws, a revision and amendment of the judiciary system is indispensably necessary. in this extensive country it cannot but happen that numerous questions respecting the interpretation of the laws, and the rights and duties of officers and citizens, must arise. on the one hand, the laws should be executed: on the other, individuals should be guarded from oppression. neither of these objects is sufficiently assured under the present organization of the judicial department. i therefore earnestly recommend the subject to your serious consideration. persevering in the pacific and humane policy which had been invariably professed and sincerely pursued by the executive authority of the united states, when indications were made on the part of the french republic, of a disposition to accommodate the existing differences between the two countries, i felt it to be my duty to prepare for meeting their advances, by a nomination of ministers upon certain conditions, which the honor of our country dictated, and which its moderation had given a right to prescribe. the assurances which were required of the french government, previous to the departure of our envoys, have been given through their minister of foreign relations, and i have directed them to proceed on their mission to paris.[ ] they have full power to conclude a treaty, subject to the constitutional advice and consent of the senate. the characters of these gentlemen are sure pledges to their country that nothing incompatible with its honor or interest, nothing inconsistent with our obligations of good faith or friendship to any other nation, will be stipulated. it appearing probable, from the information i received, that our commercial intercourse with some ports in the island of st. domingo might safely be renewed, i took such steps as seemed to me expedient to ascertain that point. the result being satisfactory, i then, in conformity with the act of congress on the subject, directed the restraints and prohibitions of that intercourse to be discontinued, on terms which were made known by proclamation. since the renewal of this intercourse, our citizens, trading to those ports, with their property, have been duly respected, and privateering from those ports has ceased. the act of congress relative to the seat of the government of the united states, requiring that, on the first monday of december next, it should be transferred from philadelphia to the district chosen for its permanent seat, it is proper for me to inform you that the commissioners appointed to provide suitable buildings for the accommodation of congress and of the president, and for the public offices of the government, have made a report of the state of the buildings designed for those purposes in the city of washington; from which they conclude that the removal of the seat of government to that place, at the time required, will be practicable, and the accommodations satisfactory. their report will be laid before you. at a period like the present, when momentous changes are occurring, and every hour is preparing new and great events in the political world, when a spirit of war is prevalent in almost every nation with whose affairs the interests of the united states have any connection, unsafe and precarious would be our situation were we to neglect the means of maintaining our just rights. the result of the mission to france is uncertain; but, however it may terminate, a steady perseverance in a system of national defence, commensurate with our resources and the situation of our country, is an obvious dictate of wisdom; for, remotely as we are placed from the belligerent nations, and desirous as we are, by doing justice to all, to avoid offence to any, nothing short of the power of repelling aggressions will secure to our country a rational prospect of escaping the calamities of war, or national degradation. as to myself, it is my anxious desire so to execute the trust reposed in me, as to render the people of the united states prosperous and happy. i rely, with entire confidence, on your co-operation in objects equally your care; and that our mutual labors will serve to increase and confirm union among our fellow-citizens, and an unshaken attachment to our government. john adams. united states, _december , _. _ordered_, that messrs. ross, read, and tracy, be a committee to report the draft of an address to the president of the united states, in answer to his speech this day to both houses. _ordered_, that the speech of the president of the united states, this day communicated to both houses of congress, be printed for the use of the senate. _resolved_, that two chaplains of different denominations, be appointed to congress for the present session, one by each house, who shall interchange weekly. the senate proceeded to the appointment of a chaplain to congress on their part, and the right reverend bishop white was unanimously elected. thursday, december . jonathan dayton, appointed a senator by the state of new jersey, and ray greene, appointed a senator by the state of rhode island, severally produced their credentials, were qualified, and took their seats in the senate. monday, december . elijah paine, from the state of vermont, attended. the senate proceeded to consider the report of the committee of the draft of an address in answer to the speech of the president of the united states to both houses of congress, at the opening of the session; which, being read in paragraphs, was adopted, as follows: _to the president of the united states:_ accept, sir, the respectful acknowledgments of the senate of the united states, for your speech delivered to both houses of congress at the opening of the present session. while we devoutly join you in offering our thanks to almighty god, for the return of health to our cities, and for the general prosperity of the country, we cannot refrain from lamenting that the arts and calumnies of factious, designing men, have excited open rebellion a second time in pennsylvania; and thereby compelled the employment of military force to aid the civil authority in the execution of the laws. we rejoice that your vigilance, energy, and well-timed exertions, have crushed so daring an opposition, and prevented the spreading of such treasonable combinations. the promptitude and zeal displayed by the troops called to suppress this insurrection, deserve our highest commendation and praise, and afford a pleasing proof of the spirit and alacrity with which our fellow-citizens are ready to maintain the authority of our excellent government. knowing, as we do, that the united states are sincerely anxious for a fair and liberal execution of the treaty of amity, commerce, and navigation, entered into with great britain, we learn, with regret, that the progress of adjustment has been interrupted, by a difference of opinion among the commissioners. we hope, however, that the justice, the moderation, and the obvious interests of both parties, will lead to satisfactory explanations, and that the business will then go forward to an amicable close of all differences and demands between the two countries. we are fully persuaded that the legislature of the united states will cheerfully enable you to realize your assurances of performing, on our part, all engagements under our treaties, with punctuality, and the most scrupulous good faith. when we reflect upon the uncertainty of the result of the late mission to france, and upon the uncommon nature, extent, and aspect, of the war now raging in europe--which affects materially our relations with the powers at war, and which has changed the condition of their colonies in our neighborhood--we are of opinion, with you, that it would be neither wise nor safe to relax our measures of defence, or to lessen any of our preparations to repel aggression. our inquiries and attention shall be carefully directed to the various other important subjects which you have recommended to our consideration; and from our experience of your past administration, we anticipate, with the highest confidence, your strenuous co-operation in all measures which have a tendency to promote and extend our national interests and happiness. samuel livermore, _president of the senate, pro tempore_. _ordered_, that the committee who prepared the address, wait on the president of the united states, and desire him to acquaint the senate at what time and place it will be most convenient for him that it should be presented. mr. ross reported, from the committee, that they had waited on the president of the united states, and that he would receive the address of the senate to-morrow, at o'clock, at his own house. whereupon, _resolved_, that the senate will, to-morrow, at o'clock, wait on the president of the united states accordingly. tuesday, december . agreeably to the resolution of yesterday, the senate waited on the president of the united states, and the president of the senate, in their name, presented the address then agreed to. to which the president of the united states made the following reply: _gentlemen of the senate:_ i thank you for this address. i wish you all possible success and satisfaction in your deliberations on the means which have a tendency to promote and extend our national interests and happiness; and i assure you that, in all your measures directed to those great objects, you may, at all times, rely with the highest confidence on my cordial co-operation. the praise of the senate, so judiciously conferred on the promptitude and zeal of the troops, called to suppress the insurrection, as it falls from so high authority, must make a deep impression, both as a terror to the disobedient, and an encouragement of such as do well. john adams. united states, _december , _. the senate returned to their own chamber, and proceeded to the consideration of executive business. wednesday, december . nathaniel chipman, from the state of vermont, attended. thursday, december . james lloyd, from the state of maryland, attended. tuesday, december . mr. tracy, from the committee to whom was referred the letter signed john trumbull, of th september, , reported a resolution, which was adopted, as follows: _resolved_, that the senate of the united states accept the prints presented by john trumbull, esq., and that their president be requested to inform him, that while they respect the delicacy which dictated the _manner_ of offering this elegant present, they consider their country honored by the genius of one of her sons, by whom these prints are happily designed, to perpetuate two memorable scenes in her progress to independence, and to preserve in lively recollection the names and virtues of heroes who fell in her defence. thursday, december . the following message was received from the president of the united states: _gentlemen of the senate, and gentlemen of the house of representatives:_ the letter herewith transmitted will inform you that it has pleased divine providence to remove from this life our excellent fellow-citizen george washington, by the purity of his character, and a long series of services to his country, rendered illustrious through the world. it remains for an affectionate and grateful people, in whose hearts he can never die, to pay suitable honors to his memory. john adams. united states, _december , _. the message and letter were read and ordered to lie for consideration. a message from the house of representatives informed the senate that the house having received intelligence of the death of their highly-valued fellow-citizen, general george washington, and sharing the universal grief this distressing event must produce, have resolved that a joint committee be appointed, to report measures suitable to the occasion, and expressive of the profound sorrow with which congress is penetrated on the loss of a citizen, first in war, first in peace, and first in the hearts of his countrymen; and, having appointed a committee on their part, desire the concurrence of the senate. the senate proceeded to consider the foregoing resolution of the house of representatives; whereupon, _resolved_, that they do concur therein, and that messrs. dayton, bingham, dexter, gunn, laurance, tracy, and read, be the committee on the part of the senate. _resolved_, that the senate will wait on the president of the united states, to condole with him on the distressing event of the death of general george washington; and that a committee be appointed to prepare, for that occasion, an address to the president of the united states, expressive of the deep regret of the senate; and that this committee consist of messrs. dexter, ross, and read. _resolved_, that the chairs in the senate chamber be covered, and the room hung with black, and that each member, and the officers of the senate, go into mourning, by the usual mode of wearing a crape round the left arm, during the session. monday, december . timothy bloodworth, from the state of north carolina, and john e. howard, from the state of maryland, severally attended. mr. dexter, from the committee appointed for the purpose on the th instant, reported the draft of an address to the president of the united states, on the death of general george washington; which being read in paragraphs, was adopted, as follows: _to the president of the united states:_ the senate of the united states respectfully take leave, sir, to express to you their deep regret for the loss their country sustains in the death of general george washington. this event, so distressing to all our fellow-citizens, must be peculiarly heavy to you, who have long been associated with him in deeds of patriotism. permit us, sir, to mingle our tears with yours; on this occasion it is manly to weep. to lose such a man, at such a crisis, is no common calamity to the world. our country mourns her father. the almighty disposer of human events has taken from us our greatest benefactor and ornament. it becomes us to submit with reverence to him who "maketh darkness his pavilion." with patriotic pride, we review the life of our washington, and compare him with those of other countries, who have been pre-eminent in fame. ancient and modern names are diminished before him. greatness and guilt have too often been allied; but his fame is whiter than it is brilliant. the destroyers of nations stood abashed at the majesty of his virtues. it reproved the intemperance of their ambition, and darkened the splendor of victory. the scene is closed, and we are no longer anxious lest misfortune should sully his glory; he has travelled on to the end of his journey, and carried with him an increasing weight of honor; he has deposited it safely, where misfortune cannot tarnish it, where malice cannot blast it. favored of heaven, he departed without exhibiting the weakness of humanity. magnanimous in death, the darkness of the grave could not obscure his brightness. such was the man whom we deplore. thanks to god! his glory is consummated; washington yet lives--on earth in his spotless example--his spirit is in heaven. let his countrymen consecrate the memory of the heroic general, the patriotic statesman, and the virtuous sage; let them teach their children never to forget that the fruit of his labors and his example are their inheritance. samuel livermore, _president of the senate, pro tempore_. _ordered_, that the committee who prepared the address, wait on the president of the united states, and desire him to acquaint the senate at what time and place it will be most convenient for him that it should be presented. mr. dexter reported, from the committee, that they had waited on the president of the united states, and that he had acquainted them that he would receive the address of the senate immediately, at his own house. whereupon, the senate waited on the president of the united states, and the president of the senate, in their name, presented the address this day agreed to. to which the president of the united states made the following reply: _gentlemen of the senate:_ i receive with the most respectful and affectionate sentiments, in this impressive address, the obliging expressions of your regard for the loss our country has sustained in the death of her most esteemed, beloved, and admired citizen. in the multitude of my thoughts and recollections on this melancholy event, you will permit me only to say, that i have seen him in the days of adversity in some of the scenes of his deepest distress and most trying perplexities; i have also attended him in his highest elevation, and most prosperous felicity, with uniform admiration of his wisdom, moderation, and constancy. among all our original associates in that memorable league of the continent in , which first expressed the sovereign will of a free nation in america, he was the only one remaining in the general government. although, with a constitution more enfeebled than his, at an age when he thought it necessary to prepare for retirement, i feel myself alone, bereaved of my last brother, yet i derive a strong consolation from the unanimous disposition which appears, in all ages and classes, to mingle their sorrows with mine, on this common calamity to the world. the life of our washington cannot suffer by a comparison with those of other countries who have been most celebrated and exalted by fame. the attributes and decorations of royalty could have only served to eclipse the majesty of those virtues which made him, from being a modest citizen, a more resplendent luminary. misfortune, had he lived, could hereafter have sullied his glory only with those superficial minds, who, believing that characters and actions are marked by success alone, rarely deserve to enjoy it. malice could never blast his honor, and envy made him a singular exception to her universal rule. for himself, he had lived enough to life, and to glory. for his fellow-citizens, if their prayers could have been answered, he would have been immortal. for me, his departure is at a most unfortunate moment. trusting, however, in the wise and righteous dominion of providence over the passions of men, and the results of their councils and actions, as well as over their lives, nothing remains for me but humble resignation. his example is now complete, and it will teach wisdom and virtue to magistrates, citizens, and men, not only in the present age, but in future generations, as long as our history shall be read. if a trajan found a pliny, a marcus aurelius can never want biographers, eulogists, or historians. john adams. united states, _december , _. the senate returned to their own chamber. a message from the house of representatives informed the senate that the joint committee appointed on the part of the house of representatives, on the th instant, on the receipt of the intelligence of the death of general george washington, having made report to that house, they have agreed to sundry resolutions thereupon, in which they desire the concurrence of the senate. mr. dayton, from the joint committee appointed the th instant, on the part of the senate, on the receipt of the intelligence of the death of general george washington, reported in part, and the report was agreed to. whereupon, the senate took into consideration the resolutions of the house of representatives, of this day, on the report of the joint committee on the subject above mentioned, and which resolutions are as follows: _resolved, by the senate and house of representatives of the united states of america in congress assembled_, that a marble monument be erected by the united states in the capitol, at the city of washington; and that the family of general washington be requested to permit his body to be deposited under it; and that the monument be so designed as to commemorate the great events of his military and political life. _and be it further resolved_, that there be a funeral procession from congress hall to the german lutheran church, in honor of the memory of general george washington, on thursday, the th instant; and that an oration be prepared at the request of congress, to be delivered before both houses on that day; and that the president of the senate, and speaker of the house of representatives, be desired to request one of the members of congress to prepare and deliver the same. _and be it further resolved_, that it be recommended to the people of the united states to wear crape on the left arm, as mourning, for thirty days. _and be it further resolved_, that the president of the united states be requested to direct a copy of these resolutions to be transmitted to mrs. washington, assuring her of the profound respect congress will ever bear to her person and character; of their condolence on the late afflicting dispensation of providence, and entreating her assent to the interment of the remains of general george washington, in the manner expressed in the first resolution. _resolved_, that the president of the united states be requested to issue a proclamation, notifying to the people throughout the united states, the recommendation contained in the third resolution. _resolved, unanimously_, that the senate do concur in the aforesaid resolutions. thursday, december . in conformity to the resolve of the d instant, the senate went in procession to the german lutheran church, where was delivered an oration in honor of the memory of general george washington. after which, they returned to their own chamber, and adjourned. friday, december . _resolved_, that the thanks of the senate be communicated, through their president, to general henry lee, for the eloquent and impressive oration to the memory of general george washington, which he prepared and delivered at the request of congress. _resolved_, that the secretary be directed to apply to general lee for a copy of the same. monday, december . thomas jefferson, vice president of the united states, and president of the senate, attended. jesse franklin, appointed a senator by the legislature of the state of north carolina, produced his credentials, was qualified, and took his seat in the senate. the vice president laid before the senate a letter signed john cleves symmes, stating the reasons why congress should be induced to receive of him the purchase money for certain public lands at the contract price; and the letter was read. mr. livermore laid before the senate a letter signed henry lee, in answer to their vote of thanks of the th instant, and request of a copy of his oration; which was read. mr. dayton, from the joint committee appointed the th instant, on the intelligence of the death of general george washington, made a further report, in part, and it was agreed that the consideration thereof be postponed. tuesday, december . a message from the house of representatives informed the senate that the house have passed "resolutions directing further measures in honor of the memory of general george washington," in which they desire the concurrence of the senate. the resolutions were read, as follows: _resolved, by the senate and house of representatives of the united states of america in congress assembled_, that it be recommended to the people of the united states to assemble on the d day of february next, in such numbers and manner as may be convenient, publicly to testify their grief for the death of general george washington, by suitable eulogies, orations, and discourses, or by public prayers. _and be it further resolved_, that the president be requested to issue a proclamation for the purpose of carrying the foregoing resolution into effect. whereupon, _resolved_, that the senate do concur in the said resolution. friday, january , . wilson cary nicholas, appointed a senator by the legislature of the state of virginia, to supply the vacancy occasioned by the death of henry tazewell, esq., produced his credentials, was qualified, and took his seat in the senate. tuesday, january . stephens thompson mason, from the state of virginia, attended. wednesday, january . the following message was received from the president of the united states: _gentlemen of the senate, and gentlemen of the house of representatives:_ in compliance with the request in one of the resolutions of congress, of the st of december last, i transmitted a copy of those resolutions, by my secretary, mr. shaw, to mrs. washington, assuring her of the profound respect congress will ever bear to her person and character; of their condolence in the late afflicting dispensation of providence; and entreating her assent to the interment of the remains of general george washington, in the manner expressed in the first resolution. as the sentiments of that virtuous lady, not less beloved by this nation than she is at present greatly afflicted, can never be so well expressed as in her own words, i transmit to congress her original letter. it would be an attempt of too much delicacy to make any comments upon it; but there can be no doubt that the nation at large, as well as all the branches of the government, will be highly gratified by any arrangement which may diminish the sacrifice she makes of her individual feelings. john adams. united states, _january , _. the letter is as follows: sir: while i feel with keenest anguish the late dispensation of divine providence, i cannot be insensible to the mournful tributes of respect and veneration which are paid to the memory of my dear deceased husband; and, as his best services, and most anxious wishes, were always devoted to the welfare and happiness of his country, to know that they were truly appreciated and gratefully remembered, affords no inconsiderable consolation. taught by the great example which i have so long had before me, never to oppose my private wishes to the public will, i must consent to the request made by congress, which you have had the goodness to transmit to me; and, in doing this, i need not, i cannot, say what a sacrifice of individual feeling i make to a sense of public duty. with grateful acknowledgments, and unfeigned thanks, for the personal respect and evidences of condolence, expressed by congress and yourself, i remain, very respectfully, sir, your most obedient, humble servant. martha washington. the president of the united states. _ordered_, that the message and letter be referred to the joint committee appointed on the th december last, to report suitable measures in honor of the memory of general george washington, deceased. thursday, january . charles pinckney, appointed a senator by the state of south carolina, produced his credentials, was qualified, and took his seat in the senate. _disputed presidential elections._ on motion, of mr. ross, that it be _resolved_, that a committee be appointed to consider whether any, and what, provisions ought to be made by law for deciding disputed elections of president and vice president of the united states, and for determining the legality or illegality of the votes given for those officers in the different states: a motion was made to amend the motion by adding, "and that the committee be authorized to report by bill or otherwise." mr. brown, of kentucky, was of opinion that this was a subject on which congress had no right to legislate. when the constitution undertook to make provisions on a subject, if they were found incomplete, or defective, they must be remedied by recommending an amendment to the constitution. he wished the gentleman who had made this motion would pay further attention to the subject, and believed he would find that if any thing was to be done it must be done by proposing an amendment to the constitution. mr. ross said, that the constitution had certainly made no provision on this subject. it only directed that after the votes were received, &c., the president of the senate should, in the presence of the senate and the house of representatives, open the certificates, and the votes should be counted. suppose, said he, persons should claim to be electors, who had never been _properly_ appointed, should their vote be received? suppose they should vote for a person to be president who had not the age required by the constitution, or who had not been long enough a citizen of the united states, or for two persons who were both citizens of the same state--such cases might happen and were very likely to happen, and is there no remedy? what a situation would the country be in if such a case was to happen! he thought it their duty to make provision for it, and he believed a law was sufficient. mr. c. pinckney, of south carolina, thought it a very dangerous practice to endeavor to amend the constitution by making laws for the purpose. the constitution was a sacred deposit, put into their hands; they ought to take great care not to violate or destroy the essential provisions made by that instrument. he remembered very well that in the federal convention great care was used to provide for the election of the president of the united states, independently of congress; to take the business as far as possible out of their hands. the votes are to be given by electors appointed for that express purpose, the electors are to be _appointed_ by each state, and the whole direction as to the manner of their appointment is given to the state legislatures. nothing was more clear to him than that congress had no right to meddle with it at all; as the whole was intrusted to the state legislatures, they must make provision for all questions arising on the occasion. mr. dexter, of massachusetts, did not feel himself at all in doubt as to the right of the legislature to make such provisions on this subject as appeared to be necessary. it was directed by the constitution that a president should be appointed, that he should be of not less than thirty-five years of age, that he should have been at least fourteen years a citizen of the united states, &c. the proceedings in the election of a president may be defective in all these particulars, and can it be supposed that there is no way to correct them? the constitution is not silent on this head; among the powers given to congress in the th section is this, "to pass all laws necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the united states, or in any department or officer thereof." the law now proposed appears to be necessary to carry into effect the power of appointing the president; it is, therefore, clearly constitutional. mr. livermore, of new hampshire never felt less doubt on any subject than the one now under consideration: the constitution has given many directions as to the appointment of the president, some of which he read. it is possible (said mr. l.) that gentlemen can suppose all these may be violated and disregarded, and yet that it is nobody's business to interpose and make provision to prevent it? he trusted the honorable senate would agree to the resolution to appoint a committee for that purpose. mr. baldwin, of georgia, expressed his regret that the mover of this resolution had not thought proper to bring forward a subject so new and important, in the form commonly used in parliamentary assemblies, by a single proposition, viz: "that it is expedient that further provision be made respecting disputed votes for president and vice president of the united states." it was manifest from the debate that several different questions had been under consideration at the same time, and different gentlemen were in fact directing their remarks to different questions. the first question was, the one he had just mentioned, whether there was so great a defect in the present provisions, which exist on this subject, as to render further provisions necessary? the second is, if further provisions are necessary, must they be made by amendment to the constitution? or, thirdly, whether they can be made by law? he must say for himself, that he did not agree that the present provisions on this subject were so defective and absurd as had been represented. his general respect for those who had gone before him in this house, and especially for the venerable assembly of the most experienced statesmen of the country by whom the constitution had been formed, forbade him to entertain the belief that the subject, which is the strong feature that characterizes this as an elective government, could have been till now so entirely out of sight and neglected. gentlemen appeared to him, from their observations, to forget that the constitution in directing _electors_ to be appointed throughout the united states equal to the whole number of the senators and representatives in congress, for the express purpose of intrusting this constitutional branch of power to them, had provided for the existence of as respectable a body as congress, and in whom the constitution on this business has more confidence than in congress. experience had proved that a more venerable selection of characters could not be made in this country than usually composed that electoral body. and what are the questions which can arise on the subject intrusted to them to which they are incompetent, or to which congress is so much more competent? the questions which present themselves seem to be: . those which relate to the elections, returns, and qualifications, of their own members. shall these be taken away from that body, and submitted to the superior decision and control of congress, without a particle of authority for it from the constitution? . the legality or constitutionality of the different steps of their own proceedings, as, whether they vote for two persons both of the same state; whether they receive votes for a person under thirty-five years of age, or one who has not been fourteen years a citizen of the united states, &c. it is true they, as well as any other constitutional branch of this government acting under that instrument, may be guilty of taking unconstitutional or corrupt steps, but they do it at their peril. suppose either of the other branches of the government, the executive, or the judiciary, or even congress, should be guilty of taking steps which are unconstitutional, to whom is it submitted, or who has control over it, except by impeachment? the constitution seems to have equal confidence in all the branches on their own proper ground, and for either to arrogate superiority, or a claim to greater confidence, shows them in particular to be unworthy of it, as it is in itself directly unconstitutional. . the authentication of their own acts. this would seem to be as complete in them, as in either of the other branches of the government. their own authentication of their act finishes the business intrusted to them. it is true this must be judged of by the persons who are concerned in carrying it into execution; as in all laws and official acts under this government, they to whom they are directed, and who are to be bound by them, must judge, and judge at their peril, whether they are duly authenticated or whether they are only a forgery. if this be the just view of the subject, (and he could see no other which did not involve inextricable difficulties,) it leaves no possible question for the senators and representatives, when met together to count the votes agreeably to the constitution, but to judge of the authentication of the act of the electors, and then to proceed and count the votes as directed. if this body of the electors of all the states had been directed by the constitution to assemble in one place, instead of being formed into different electoral colleges, he took it for granted none of the questions on which this resolution has been brought forward, would have occurred; every one would have acknowledged that they were to be settled in that assembly. it having been deemed more safe by the constitution to form them into different electoral colleges, to be assembled in the several states, does not at all alter the nature or distinctness of their powers, or subject them any more to the control of the other departments of the government. he observed further on the other points to which gentlemen had spoken, that if such radical and important changes were to be made on this subject, as seemed to be in contemplation under this resolution, he thought they must be made by proposing an amendment to the constitution to that effect; and that they could not be made by law, without violating the constitution. he did not agree with the gentleman from massachusetts, (mr. dexter,) that the clause at the close of the th section of the constitution, which gives to congress power to pass all laws necessary and proper to carry into effect the foregoing powers of that section, and all other powers vested by the constitution in the government of the united states, or in any department or officer thereof, could be extended to this case: that speaks of the use of the powers vested by the constitution--this resolution relates to the formation of a competent and essential part of the government itself: that speaks of the movements of the government after it is organized--this relates to the organization of the executive branch, and is therefore clearly a constitutional work, and to be done, if at all, in the manner pointed out by the constitution, by proposing an article of amendment to the constitution on that subject. his own opinion, however, was, what he had before stated, that the provisions on this subject were already sufficient; that all the questions which had been suggested were as safely left to the decision of the assemblies of electors, as of any body of men that could be devised; and that the members of the senate and of the house of representatives, when met together in one room, should receive the act of the electors as they would the act of any other constitutional branch of the government, to judge only of its authentication, and then to proceed to count the votes, as directed in the second article of the constitution. the further consideration of the subject was postponed. friday, january . _disputed presidential elections._ the senate resumed the consideration of the motion made yesterday, that a committee be appointed to consider whether any, and what, provisions ought to be made by law for deciding disputed elections of president and vice president of the united states, and for determining the legality or illegality of the votes given for those officers in the different states, and that the committee be authorized to report by bill or otherwise; and the motion as amended was adopted; and, _ordered_, that messrs. ross, laurance, dexter, pinckney, and livermore, be the committee. thursday, february . _disputed presidential elections._ the senate resumed the consideration of the bill prescribing the mode of deciding disputed elections of president and vice president of the united states. on motion to strike out of the first section of the bill the following words: together with the chief justice of the united states, or if he be absent from the seat of government or unable to attend, then with the next senior judge of the supreme court of the united states, who may be present and able to attend. it passed in the negative--yeas , nays , as follows: yeas.--messrs. anderson, baldwin, bloodworth, brown, cocke, franklin, langdon, marshall, mason, nicholas, and pinckney. nays.--messrs. bingham, chipman, dayton, dexter, foster, greene, gunn, hillhouse, howard, latimer, laurance, livermore, paine, read, ross, schureman, tracy, watson, and wells. on motion to strike out these words from the st section: "to choose by ballot in each house six members," and in lieu thereof to insert "to draw by lot in each house ---- members:" it was determined in the negative--yeas , nays , as follows: yeas.--messrs. anderson, baldwin, bloodworth, brown, cocke, langdon, marshall, mason, and nicholas. nays.--messrs. chipman, dayton, dexter, foster, franklin, goodhue, greene, gunn, hillhouse, latimer, laurance, livermore, paine, read, ross, schureman, tracy, and wells. _ordered_, that the further consideration of the bill be postponed. friday, february . _eulogium on general washington._ _resolved_, that the senate will, to-morrow, at half past o'clock, meet at the senate chamber, and from thence walk in procession to the german calvinist church in race street, to hear the eulogium pronounced on the character of general washington. monday, february . _disputed presidential elections._ the senate resumed the second reading of the bill prescribing the mode of deciding disputed elections of president and vice president of the united states. on motion, to amend the bill, section th, line th, so as to provide that the proceedings of the committee be held in public, by striking out the words "with closed doors," and inserting, "in the chamber of the house of representatives, with open doors," in lieu thereof: it passed in the negative--yeas , nays , as follows: yeas.--messrs. anderson, baldwin, bloodworth, cocke, franklin, langdon, mason, and nicholas. nays.--messrs. bingham, chipman, foster, goodhue, greene, hillhouse, howard, latimer, laurance, livermore, marshall, paine, read, ross, tracy, and wells. and, after progress, the further consideration of the bill was postponed. wednesday, february . _breach of privilege._ duane and the aurora. a motion was made, by mr. tracy, that it be _resolved_, that the committee of privileges be, and they are hereby, directed to inquire who is the editor of the newspaper printed in the city of philadelphia, called the general advertiser, or aurora, and by what means the editor became possessed of the copy of a bill prescribing the mode of deciding disputed elections of president and vice president of the united states, which was printed in the aforesaid newspaper, published wednesday morning, the th instant, february, and by what authority he published the same; and by what authority the editor published in the same paper that the honorable mr. pinckney, a senator from south carolina, and a member of the committee who brought before the senate the bill aforesaid, had never been consulted on the subject. and generally to inquire the origin of sundry assertions in the same paper, respecting the senate of the united states, and the members thereof, in their official capacity, and why the same were published; and make report to the senate. and that the said committee have power to send for persons, papers, and records, relating to the subject committed to them. _ordered_, that this motion lie for consideration. the senate resumed the second reading of the bill prescribing the mode of deciding disputed elections of the president and vice president of the united states; and after progress, adjourned. wednesday, march . _breach of privilege._ the senate took into consideration the motion made on the th of february last, that an inquiry be had relative to a publication in a newspaper called the "aurora," on the th of the said month; and agreed to insert after these words: "and by what authority he published the same," line th, the words "as having passed the senate." mr. cocke said, he would not suffer a measure of this kind to pass through the senate, while he had the honor of a seat in that body, without manifesting the most determined opposition. what did the gentleman mean by avoiding the general principle? did he mean to get the consent of the senate, acting in the character of an inquest, to an acknowledgment that the editor of the aurora had been guilty of a crime, without any inquiry whether the publication in itself was criminal, or whether if it was criminal, the senate, as an independent and a single branch of the legislature, had of itself the power to define the crime and inflict the punishment? he could not consent to an admission of this kind; the constitution gave them no such authority; the privileges of the house and of the members did not extend beyond the walls of the chamber in which they were sitting, in cases of comment upon their official proceedings. he had held these opinions from the time the motion was first laid before the house, and thought that the consequences which would result from pursuing the subject, would be more dangerous to the honor and dignity of the senate, which it was meant to defend, than all the attacks which all the public newspapers could make during their existence, inasmuch as an actual assumption of power was far more detrimental to their character than any unfounded charge of tyranny could be. he believed that the more the subject was agitated the more would be the clamor against the senate, and in the end they would be forced to abandon the measure for want of ability to carry it through; he therefore concluded it would be best to give it up in the first instance, and save both their own time and the public money. he would move to postpone the consideration of the motion till the first monday in december next. mr. tracy did not wish to hurry on the decision, but as the resolution had been several days upon the table, he believed the house might now decide on the propriety of referring the business to the committee of privileges, as this procedure would not be final; or, if the house was not ready to vote immediately, the discussion might proceed and time would be given for coming to the conclusion. mr. c. pinckney.--this subject involves the important questions, what are the privileges of congress, and how far are they defined by the constitution; and what is the liberty of the press, as it respects those privileges? these are subjects of great consequence, and such as i suppose the house will touch with much caution. my name having been mentioned in the body of the original motion, i feel myself particularly called upon to deliver my sentiments fully, as well with respect to the manner in which it is mentioned, as to the limitations of the constitution, and what ought, in my judgment, to be the conduct of the senate, on this very interesting occasion. in considering, first, what are the privileges of congress, and how far they are defined by the constitution, i am naturally led into a repetition of arguments i have found myself too frequently obliged to use on this floor; that is, to entreat the house to recollect the nature of our federal system; that all powers not expressly and specifically delegated to congress, are reserved to the states and people: and particularly to remember, that where any powers are so expressly defined as the privileges of congress are, that it is our duty very carefully to consider the consequences, before we take a step that may, by subsequent or cool reflection, be found to exceed them; that the privileges of congress, as limited by the constitution, have been very deliberately considered by men whose opinions were not swayed by party, and whose impartial situation gave the best opportunity of judging; that having before them the example of the unlimited privileges of the british parliament, and colonial assemblies, or councils, assuming to themselves the right of such privileges; that knowing the consequences of undefined powers, and being well aware what privileges were necessary to prevent an interruption of the undisturbed situation a member should enjoy, during the time he is engaged on public affairs, after much thought they had defined them in the manner fixed by the constitution. no man, who is a friend to order, will justify what properly deserves to be termed the licentiousness of the press. when, instead of candidly reviewing the arguments or public conduct of a member of the legislature, or officer of the government, it meanly descends to private scandal, instead of being defended, it should be met with contempt and disdain. abuse is the price that public men, and frequently those of the most ability, are obliged to pay; and it is seldom, in countries where the press is free, and strong political parties are known to exist, that it is much noticed. men of elevated minds, who feel themselves strong in the powers of reasoning, will always yield to their feeble opponents the miserable resort of abuse; it is the surest test of imbecility, and the public, who generally think right, seldom hesitate to suppose it equally the proof of weakness and of malice. i shall consider this subject from its importance, and the peculiar manner in which it has been introduced, as open to such animadversions as are within the rules of order and are consistent with decorum. i shall probably advance doctrines that will be termed as extraordinary here, but it shall be done with the good manners i have ever considered as the criterion of good breeding, and which self-respect will forbid my violating. it is the first question respecting the privileges of the senate that i have ever been present at, and, as it involves the liberty of the press, it is only necessary for me to mention these subjects, to show the house the propriety of our well-examining every line of the resolution on your table, before we adopt it. i feel myself particularly called upon to give my opinion fully on this subject, because my name is inserted in the body of the resolution, and, to those unacquainted with the circumstances, it might have the appearance of being done at my request; whereas it was not only done without my knowledge, but is contrary to my wish, and opinion of the power of the house, and of the mode in which such inquiries should be conducted; that even if the house had the power, the remarks and information contained in the paper are not sufficiently important to attract its notice, particularly as they had been completely silent on the abuse of the senate in the gazette of the united states, respecting the stopping of the enlistments for the army; that the inquiry might lead to steps not within the defined privileges of the senate, and that, as these may involve the liberty of the press, and the right of a citizen to publish the debates and public acts of this house, those who were opposed to what they might consider unconstitutional restrictions, ought to meet the question at the threshold, and contest it in every stage. i shall therefore feel it peculiarly my duty to do so, and, after having stated to you my objections to any interference at all on this subject, to move the postponement of the resolution, or to amend it in some way that shall place on the journals my opinions of the extent of your privileges, and reasons for objecting to the mode of inquiry proposed by the gentleman from connecticut. in examining the constitution we find, that to prevent any attempt being made on the part of either branch of congress to define their own privileges, and exercise the same, as occasion or circumstances may, in their opinions, require, and to remove all doubt as to the extent and exercise of the privileges they are to enjoy, the constitution has positively and expressly limited and defined the same, by declaring-- "that each house shall be the judge of the elections, returns, and qualifications of its own members; that they may compel the attendance of absent members, in such manner, and under such penalties, as each house may provide; that they may determine the rules of their proceedings, punish the members for disorderly behavior, and, with the concurrence of two-thirds, expel a member. that the members of both houses shall, in all cases, except treason, felony, or breach of the peace, be privileged from arrest during the attendance at their respective houses, and in going to and returning from the same, and, for any debate or speech in either house, shall not be questioned in any other place." this is all that is said on the subject of privilege; and surely no words can be more explicit, nor any subject more clearly defined. the powers they are to exercise, and the persons and cases they are to operate upon, are all distinctly marked and named; nor is there a word or a sentence in the whole that can by any possible construction be made to mean that for any libels or printed attack on the public conduct or opinions of either house of congress, or of any of its members, that their privilege shall extend to ordering the persons charged with the offence before them, and imprisoning them at their will. the constitution wisely determined, that they should possess all the powers necessary to their formation, and the undisturbed order of their proceedings, and the safety of their members from arrest, during their attendance, and going to, and returning from congress; but it at the same time recollected, that it is the nature of our government to invite examinations of public measures, that it is the duty of our citizens to make these inquiries, to watch over the proceedings of our public bodies, and if they find them departing from the constitution, or exceeding their authority, instantly to announce it. that our constitution supposes no man, or body of men, to be infallible, but considers them all as mere men, and subject to all the passions, and frailties, and crimes, that men generally are, and accordingly provides for the trial of such as ought to be tried, and leaves the members of the legislature, for their proceedings, to be amenable to their constituents and to public opinion; it however particularly guards the right of the citizens to investigate their measures; and in case of a false or libellous attack, it intends, if the power of collecting juries is fairly exercised, to provide a just and impartial tribunal to decide between them, to act upon oath, and who ought not to be the particular friends or enemies of either. on this subject i shall hereafter more fully remark, and at present take some little notice of an observation that has been made, and which, with the subject of privileges, should be considered as preliminary to those that are necessary on the liberty of the press. it is, that if congress possessed the power contemplated by this resolution, it was their duty to pass some legislative act respecting it, declaring the manner in which it should be executed, and designating the officer or officers who were to do so; that the people would then know the manner in which offenders were to be summoned or apprehended, or brought before them; but this should have been done when no particular case had occurred, and was before them, and that no proceeding of privileges in any case like the present, ought to be had until such act was passed, and the mode of proceedings clearly ascertained; that if the power was given by the constitution, until congress had legislated upon it, in the manner above mentioned, it was extremely improper for either branch to attempt to exercise it; that a judiciary department was erected by the constitution, but that congress was obliged to legislate upon it, and detail its duties, and provide for the appointment of officers to execute them, before the powers of that department could be properly exercised: and that if congress possessed the power some gentlemen contend for on this point, they must previously legislate on it in the same manner. on this subject there can be no doubt of the propriety of this objection, if congress possessed the power; and their never having passed such a law is a strong proof, that whatever opinions either branches may have entertained, that both did not suppose they possessed this power, or certainly they would have legislated upon it. if they did not doubt, or were not sure they did not possess this authority, why did they not legislate on it at the time they did on all such other parts of their privileges and powers as they conceived they had authority to act on. they (that is, congress) passed an act on the subject of the election of members of the house of representatives, of which that house are the sole judges; each house detailed, in a particular manner, their rules and modes of proceeding--this was all that was necessary to be detailed. the remainder of the clause respecting privileges is so express on the subjects of privilege from arrest, government of members, and expulsion, that every civil officer in the united states, and every man who has the least knowledge, cannot misunderstand them. i assert, that it was the design of the constitution, and that not only its spirit, but letter, warrant me in the assertion, that it never was intended to give congress, or either branch, any but specified, and those very limited, privileges indeed. they well knew how oppressively the power of undefined privileges had been exercised in great britain, and were determined no such authority should ever be exercised here. they knew that in free countries very few privileges were necessary to the undisturbed exercise of legislative duties, and those few only they determined that congress should possess; they never meant that the body who ought to be the purest, and the least in want of shelter from the operation of laws equally affecting all their fellow-citizens, should be able to avoid them; they therefore not only intended, but did confine their privileges within the narrow limits mentioned in the constitution. and here, sir, let me ask, are not these privileges all that are necessary? they have complete authority to keep order and decorum within their own chamber, to clear the galleries if an audience are unruly, and to punish their own members, to take care that no arrests, except for treason, felony, or breach of the peace, shall keep their members from their duty, and for all libellous attacks or misrepresentations the laws are open to them; and if unjustly attacked, no doubt the juries of their countrymen, who are interested to preserve the dignity and independence of their legislature, will give them the most ample satisfaction. but it is said, "each branch must possess this power to punish for breach of privileges, which they must judge of as circumstances may arise and require; that every legislative body, or branch of one, possesses an inherent right to protect itself, which must be exercised as their discretion directs, because it may frequently be necessary to exercise it immediately, when the public safety would make it impossible to wait for reference to other bodies, or tribunals," and, "that if a man was approaching to knock you down, it would be absurd, instead of defending yourself, to deliberate whether you were authorized to do so; that you must act instantly, as the occasion demands; and that as each individual in society possesses this inherent right to protect himself, so does each branch of the legislature." this, as far i have been able to collect, is the sum of the reasoning on this subject; and it is said to be strengthened by the practice and proceedings of the british parliament, and the colonial legislatures, before the revolution, and most of the state legislatures since, and is now universally received as the true doctrine on this subject. that it is the doctrine and practice of the british parliament, i will allow; but it was because the doctrines there held are utterly inadmissible in a free government; and to prevent any influence from them, and their precedents, and the improper practice of the colonial and state legislatures, that this limitation of the privileges of congress was here purposely introduced. will any man undertake to say, that the privilege of the parliament of great britain ought to be that of the congress of this country? do you suppose that all their members, and their property, and even their servants, should be protected from arrests during the whole time they are elected for, many of them for twenty years together, or during their lives? would it be thought safe in this country that a small majority of a small body, or single branch of a legislature, should claim and exercise the authority, whenever they please, to send and seize any man in your community, however important, and confine him in a loathsome dungeon, for six months together, merely because he has differed with them in politics, and criticised, as he had a right to do, on their legislative acts? is it a pleasant sight to our citizens, to see sergeants-at-arms, with their rods, inquisitorially seizing freemen, and dragging them to your bar, and there exhibiting them as criminals, or spectacles to crowded audiences, merely because they thought they had a right to attack, by argument, proceedings which appeared to them unconstitutional? can you have the most distant idea, that your constitution could have intended thus for ever to shut the door of inquiry, and make it so penal and dangerous to your citizens that none of them will dare to venture it? is it possible for any man to read the constitution with attention, and then suppose that such could have been its design? so far from being so, i do assert that great pains were taken specially to guard against the exercise of any such power, and i have no doubt that the congress of must have been of this opinion, or else why did they pass the d section of the sedition law? why did they (improperly in my opinion, because it ought to belong to the state judicials)--why did they make the crime of writing, uttering, publishing, or printing any libel against the president, or either branch of congress, triable, and punishable, in the federal courts, if either branch possessed this power themselves? if they have the right to punish libels, or false, or malicious attacks, why include them in this act? their power extends over the whole of the union, and can reach any inhabitant, in any state. is it not therefore clear, that by giving this authority to the federal judges, to try and punish for written or printed attacks on either branch of congress, that the congress of did not suppose, for attacks of this kind, made in the papers, there was any other mode of punishment than by a trial, where the person charged would have the benefit of trial by jury? surely this must have been their opinion, or they would not have had two different modes of trial and punishment for the same offence. they never would have erected a new jurisdiction to include a crime, when one sufficiently strong and energetic existed already; but to prove this still more clearly, let us inquire, why the constitution should have been so attentive to each branch of congress, so jealous of their privileges, and have shown so little to the president of the united states in this respect. why should the individual members of either branch, or either branch itself, have more privileges than him? he is himself, as far as his qualified negative goes, a branch of the legislature; he is, besides, your executive, he is the sword of the law, and does he possess any privileges like these? if a man meets him walking alone in the streets and insults him, or if one of ruffian manners should enter his house, and even abuse him there, has your president any privileges like these? can he commit and imprison without a trial? no, sir, he must resort to the laws for satisfaction, where the person charged with the outrage will be heard, and where each party will have justice done them, by men who ought to be so impartially summoned as that no undue bias will be found, when they come to decide. no privilege of this kind was intended for your executive, nor any except that which i have mentioned for your legislature. the convention which formed the constitution well knew that this was an important point, and no subject had been more abused than privilege. they therefore determined to set the example, in merely limiting privilege to what was necessary, and no more. look into the constitutions of all the states which have been formed since the federal constitution, and see if they have not done the same. the constitution of south carolina is remarkably explicit and limited on this subject: it says, "that each house may punish by imprisonment, during its sitting, any person not a member, who shall be guilty of disrespect to the house, by any disorderly or contemptuous behavior in its presence, or who, during the time of its sitting, shall threaten harm to the body or estate of any member, for any thing said in either house; or who shall assault any of them therefor; or who shall assault or arrest any witness or other person, ordered to attend the house, in his going to or returning therefrom; or who shall rescue any person arrested by order of the house." these are all privileges, except privilege from arrest or seizure of estate, mentioned in that constitution; and the slightest inspection at once shows, that except for disrespect or contemptuous conduct, in its presence, or threatening or assaulting a member for his conduct in the house, that no other authority is given to punish--not a word is said about libels, or attacks by writing or printing, on their conduct. it is well known that our constitution intended the press to be free; to be the means of communicating the acts of the government, and of commenting on them where necessary; that it supposes that majorities will sometimes exist, who may wish to overstep the boundaries they ought not to pass; and, therefore, it provides for them, in the hands of the people, this wholesome correction of the press, which those who resort to must use at their peril. if they use it properly, animadvert with propriety, and really point out defects or usurpations in the government, the people will applaud their zeal, and the laws will support them in their exertions; but if they falsely or maliciously misrepresent, the law will become the avenger of the government, and unprejudiced juries be the means of punishing calumniators. this is the true footing upon which legislative privilege should be put in every government, and it is the one on which it is now placed in the united states. by this you give sufficient power to punish, for any improper thing done in their presence, which may disturb the order of either house, or violate the decorum of their proceedings; and for any supposed slanderous attack, the tenderness with which you ought to touch the constitutional right of the public to inquire into public affairs, and the delicate subject of trial by jury, will always necessarily oblige you to recur to the latter for redress and satisfaction. if it was proper, on subjects like this, to refer to british precedents, i could mention a recent one, which is exactly in point; and shows, that even in the english house of commons, the doctrine i contend for prevails; it is, that in all cases of libels against either house, the remedy must be by prosecution by the attorney general, and trial by jury. in stockdale's case, doctor logan published charges against the house of commons, in which he stated, in a variety of ways, that they had been guilty of great cruelty to mr. hastings, mr. pitt and mr. fox, and all sides of the house agreed that it was a libel; but, instead of ordering him before the house, they entered into resolutions directing the attorney general to prosecute. it appears to me so clear, that for all libels or attacks on either branch of the legislature, in writing or in print, the mode must be by prosecution, that i do not know it is necessary to trouble you at this time with any further reasoning on that head; i will therefore only mention one more, and then conclude this part of my subject: it is, that from the nature of our government, where our president is elective, and obliged to attend to public opinion, even if he wishes to do so, he will never venture on those bold measures, which hereditary executives sometimes attempt. if, then, there should be some men, whose political talents he is afraid of, or whose inquiries into his administration give him uneasiness, an executive, instead of venturing on any such measure himself, if he can obtain a majority in either branch, will easily discover some mode of having this man's political iniquities construed into breaches of privilege; and, under cover of his friends' influence, immure and silence, during a whole session, and for half a year, a man, whose arguments were perhaps unanswerable, and whose system may be the one which your councils may the next year adopt. i am far from supposing that we are yet so much advanced in the arts and intrigues of older governments as to make this probable at present; it is not however impossible, and must be guarded against. the next question is, that of the liberty of the press, as applying to these defined privileges; and as it is the first time this sacred subject has been before either house on a question of privilege, i shall expect your indulgence in making some remarks on it. i shall be very short; for however fruitful the subject is, yet so much has been said of it elsewhere, and you must be so well acquainted with it, that it will be necessary for me barely to state some general principles, as they apply to the question before you. i feel a pride in saying that in no country has the press ever been as free as in united america; however clouded or interrupted this freedom has, in my opinion, lately been, i entertain a hope that in a few months all its shackles will be removed, and that the emotions they have occasioned in the public mind will for ever forbid its being thus fettered again. to no subject have i ever more carefully applied, than what ought in a well regulated government to be the freedom of the press. i well know that where the press is not free, liberty is but a name, and government a mockery. i have therefore endeavored to form, in my own mind, what ought to be the true standard of the freedom of the press with us; and i have no doubt that it consists in this: that the printing press shall be free to every person who undertakes to examine the proceedings of the legislature, or any branch of the government, and no law shall ever be made to restrain the right thereof; that the free communication of thoughts and opinions is one of the most invaluable rights of man; and every citizen may freely speak, write, and print, on any subject, being responsible for the abuse of that liberty; that in prosecutions for the publication of papers investigating the official conduct of officers, or men in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libels the _jury_ shall have a right to determine the law, and the fact, under the direction of the court, as in other cases. this is the situation in which the constitution of pennsylvania has placed the press; and it is the true and safe one, upon which it ought to be placed in every free government. here the right to investigate the conduct of the legislature, and of official men, is not only recognized and established, but the constitution seems to require it as a duty, from the citizens. it says to them, these are men periodically delegated by you to manage your public concerns--to you, and you alone, they are accountable for their conduct; nor can you know whether it is meritorious, or otherwise, but by having the right to examine into it, and by freely and frequently exercising that right. and would it not be the strangest thing in the world, when the constitution not only establishes the right, but calls upon the citizens to exercise it with alertness, and by no means to neglect it, that if they should happen to displease a branch of the legislature, whose conduct they have censured, that they should be delivered immediately into the power of this branch, to be dealt with as they please; that the men they had accused, and whom they had, by the constitution, a right to accuse, should become their judges? would not this be a most extraordinary doctrine? would it not involve an inconsistency, that ought not certainly to be chargeable upon the framers of the constitution? in private cases of slander, or defamation, would you suffer the person abused, or any near connection of his, or person interested in the event of the suit, to be on the jury? certainly not. how much more glaringly improper then would it be, in cases of a public nature, where the acts of a legislative branch are censured, and where the charge has been openly and honorably brought forward, to commit the person who produced it, at once, to the power of the body whose acts he has condemned! let us suppose, that in the exercise of this invaluable right, some disinterested and independent man, urged by the most honorable and patriotic motives, should conceive a branch of the legislature overstepping the bounds of the constitution, and going into measures destructive of our rights, or injurious to our interests; that this man should be an important member of your community, of known integrity and independence of situation and character, that he should have no private ends of his own to answer, or any thing in view but the public good; that he has embarked in the investigation at the entreaty of a numerous and respectable part of the community, who wished the public mind to be so fairly and fully possessed of facts, and reasonings on them, as to be able, at the next election, to determine with precision and fairness on the conduct of their legislature; under these circumstances would it be proper to deliver this man into the power of a body whom he has charged with misbehavior, or a departure from constitutional principles? or would it not be more fair, would it not wear more the appearance of impartiality in case an examination was necessary into the nature of his charges, or the manner in which he has made them, and the expressions he has used, to have a distinct and unprejudiced body, a jury acting under oath, to decide between them? as far as i know any thing of the principles of natural justice, i should suppose there was no question on the subject, and no other opinion ought to be entertained, and that without it there can be no such liberty of the press, or freedom of inquiry, as the constitution intends. and here, sir, let it be asked, why should a government that means well, or is confident in its uprightness and ability, ever fear the press? it should be to them a source of great pleasure, in reflecting that they had so excellent a mode of diffusing a knowledge of their acts, well knowing, if they were unjustly attacked, it gave them the most ample means of defence; and that if it became immoderate and licentious, the laws were always sufficiently energetic to punish it. how many individuals when attacked or slandered, have rejoiced that such a defence has been afforded them; and how indispensable is its free investigation to the removal of doubts which sometimes crowd about the characters of public bodies, or men, and which it is necessary to remove! public bodies are public property; and so indeed are public men; who have in any degree rendered themselves conspicuous by their exertions: few of these, if ever there was one, can expect to be without personal enemies; these will be in proportion to the talents of the man they dislike, and his consequence with the people. men who engage in public life, or are members of legislative bodies, must expect to be exposed to anonymous, and sometimes avowed attacks, on their principles and opinions. their best shield will be an upright and able conduct. the best informed will sometimes err; but when their intentions are pure, an enlightened nation will easily discover it, and pardon the mistake. with the shield of conscious rectitude, a government can never dread the press. it is only in states where the happiness of the people is not the end of government, or where an individual or a few possess the whole authority, that the press is not agreeable to them. hence, in despotisms, it is generally odious to the sovereign, and strictly limited. we have, however, found, even among them, a latitude which proves that in the most despotic countries, where the sovereign is conscious of using his power for the good of the people, he fears not the slanders of the malicious. it is remarked of frederic of prussia, that few princes were more libelled by their subjects; but that in no country were libels more disregarded: that few, if any, instances ever occurred of his endeavoring to discover the authors, or to crush, by punishment, the spirit of inquiry which literary pursuits had diffused among his subjects. a more remarkable instance is, that of the empress of russia; in giving her directions respecting libels, she says, "great care ought to be taken how we extend this crime; representing to ourselves the danger of debasing the human mind by restraint and oppression, which can produce nothing but ignorance, and must cramp and depress the rising efforts of genius." i did not expect to have been obliged ever to have introduced on this floor, frederic or the empress, as examples on the subject of the press. the love of liberty, or a wish to countenance the spirit of political inquiry, was not certainly among the reasons for allowing this latitude; but they at once discovered, that if they wished to govern an enlightened people, the spirit of inquiry must be unshackled, and an extensive range given to literary productions. among the ancients we find tiberius, and trajan, and titus, allowing absolute liberty of speech and writing, suppressing the laws against seditious words and writings, and punishing informers. but the most remarkable instances we have, that freedom of speech and writing are essential to the liberty and greatness of a people, are those of athens and rome, when republics: in speaking of them, a celebrated writer says, "that democracy is the nurse of genius, and the greatest encourager of sublimity." the fact is evident from these republics. in greece, athens was most democratical, and a state of the greatest liberty; and hence it was, according to paterculus, "that eloquence flourished in greater force and plenty in that city alone than in all greece besides; insomuch, (says he,) although the bodies of the people were dispersed into other cities, yet you would think their souls and their genius to have been pent up within the precincts of athens." so the city of rome was not only the seat of liberty and empire, but of true wit and exalted genius. the roman power outlived, it is true, for a considerable time, its liberty, but the freedom of speech and writing was gone, and wit and genius could not long survive them. how applicable, sir, are these instances, and how incumbent on us is it, if we mean to keep this country a republic, to cherish the freedom of the press, to remember that without it seldom any thing great or noble can be produced, that to shackle it is to chain the mind, and stifle the seeds of every thing that is generous and amiable! that, in the words of a celebrated divine, "reason and freedom are our own, and given to continue so; we are to use, but cannot resign them, without rebelling against him who gave them; that to invade them is to encroach on the privileges we receive from god, and traverse the designs of infinite goodness." we should remember the danger of precedents, and be careful, as this is the first discussion we have had on this subject, not to establish improper ones, or lay a foundation for that debasement of the mind, which always follows the depression of the press. it is important here to remind you of the anxiety of the state legislatures in insisting upon the doors of the senate being thrown open, and their legislative proceedings exposed, like the other branch, to public view. it was done unquestionably with the intent, that minutes of your debates should be taken, and all your proceedings subject to the inspection of such of our citizens as choose to attend; but as, from the distance, very few of the states could have citizens attending, the great object certainly must have been to have notes taken of the debates, and printed in the gazettes; that through that channel information may be transmitted to every part of the union, and thus the states become, in the best manner they are able, judges of the talents, as well as conduct and opinions of their members. that this is of infinite importance, in a representative government, no man will deny; but if a printer is to be seized, and dragged to your bar, and perhaps imprisoned for a mistake, that a law has passed when it is only its second reading, or that a member of a committee was not summoned to attend the meeting of the committee, when he was, and did attend, or for any mistake of this kind, i ask you what printer or reporter will take your debates? who will venture on it; because, where will you draw the line? will you require that each reporter shall give every word and observation with exactness, and that the smallest deviation from what was said on the orders or proceedings of the house, shall subject him to the odium, and perhaps expense, of a trial at your bar, which must accrue if he has counsel? if this is the case, no reporter will certainly attempt to take your debates, and your doors may just as well be shut again. but, say gentlemen, it is not only for those assertions which you have mentioned, but for the preceding and accompanying observations respecting the views and proceedings of the senate, and of the members of that body in their official capacity, for which we think this examination requisite. i have already said, in the commencement of my argument, that no man can justify the licentiousness of the press, and that it is perhaps to be lamented that so much invective is used in the papers on both sides of the question; but that as most of these observations are on things that did not happen in the senate room, and many of them are stated to have occurred near two years ago, and that as much more violent abuse against the senate was published in the federal paper styled the gazette of the united states, on the th day of february, and no notice has been taken of it, that it was best, upon this occasion, to suffer the present to pass unnoticed likewise: that it is astonishing the honorable mover from connecticut, who seems to feel so much for the dignity and character of the senate on this occasion, did not, on that of the abuse which was heaped on it for consenting to stop the enlistment for the army, have similar feelings; and that as he consented to suffer those animadversions to pass, it would certainly be doing no great violence to his feelings to deal with the present in the same way: that perhaps the best mode to lessen the importance of a paper was, not to treat its observations with either too much notice or severity; that in politics, as in religion, persecution seldom made converts; that if i ever had the inclination to raise the importance of a press, and bring it into celebrity and notice, i would wish it persecuted, for i never saw a press in a free government persecuted but it rose immediately. attack a press for its political publications, you instantly convince the people that it is dreaded, and must be of great importance, and attract their attention. we can never forget the memorable cases of _sacheveral_ and _wilkes_, or how much the english nation was agitated by them, and we ought to be convinced, that in every country having the least semblance of freedom, the same consequences will always flow from the same measures. i request of you again to consider the importance of the question, how far, in the case of libels, or attacks in the papers, for their political opinions, any single branch ought to possess the power, perhaps in a moment of passion and resentment, to decide on what is to affect the personal liberty of a citizen? whether it is consistent with the nature of our government, that a single branch, without check or control, should become judges in their own case? whether any citizen charged with a crime, for which he may be punished by the temporary loss of liberty, is not entitled, by the constitution, to "a speedy trial by an impartial jury?" and, whether to deny it, in this instance, would not be to interfere with that provision of the constitution? for my own part, i have no doubt of it; and, feeling as i always do, most jealous for the character of this branch, i am apprehensive, should we proceed in this measure, it may occasion unpleasant observations. some of its enemies may perhaps say, that no power is so arbitrary as that of the unlimited authority of a single branch, acting in its own cause, revenging its own affronts, and deciding, perhaps more by its own passions and feelings, than by the justice of the case: that a power of this kind is worse than a despotism; because there the despot is in some measure checked by his individual responsibility; for the act being the official act of the body, is that sort of protection under which an individual despot cannot shelter himself from the public odium--should the measure be oppressive, he must alone meet the general censure, which, thus concentrated, strikes with force; but when divided among a number, must in a great measure lose its effect. that, in every view of the subject, we must be convinced that for libels, or printed attacks, on either branch, the constitution must have intended to give the person charged the right of trial by a jury, so collected that a cool and unprejudiced examination might take place, and justice be done to all parties; that this i had shown to be the case, in the instance i had mentioned, in the house of commons of great britain; and we surely would not wish the press should be more free, or the freedom of inquiry into legislative conduct, more unshackled in england than with us. look, sir, into the abuse that is daily poured by the papers of that country upon their parliament and administration, and upon mr. pitt and mr. fox, and all their leading members; and yet we see no proceedings of this kind. indeed, if we were to believe montesquieu, and the writers since him, it is to the freedom of the press alone england owes the portion of liberty she enjoys--it is the ladder by which she rose, and that which she will struggle most to preserve. i devoutly hope she will always keep it, and that we shall likewise maintain it for ever in its utmost purity. mr. p. concluded by adding, that if the senate went into a consideration of his motion, instead of that of the gentleman from connecticut, (mr. tracy,) they would probably avoid that part of the discussion which would be least agreeable, as the subject would be clear from that locality and personality which attached to the first, and a decision would take place without any reference to this or that particular printer; but if the gentleman would postpone the question, mr. p. consented to let his motion lie on the table, with a view to its being printed for the use of the members, that so both propositions might be compared and considered with more attention than could be done in any other way. mr. cocke declared that the object which he had in view was nothing more nor less than to rid the house of the business altogether. he was not inclined to appoint any special time for the discussion, as the worthy gentleman from south carolina (mr. pinckney) had requested. he had no idea that it was supposed he had the saving or exoneration of any printer in view; he had no such thing; but he wished to save the reputation of this body, which he thought was placed in jeopardy by the connecticut motion. here it is proposed to inquire and examine of and into this, that, and the other--to bring one printer here, and generally all persons and papers, who and whatever, just as your committee may think fit. suppose this power is doubted? suppose the persons deny your power--how are your committee to enforce their mandates? suppose your courts of law claim cognizance as a case of libel, are you to have two prosecutions and two trials for the same offence? surely, surely, your committee will have to retire from the untenable ground, and the defeat will recoil with disgrace upon those of us who attempt to assume powers neither constitutional in themselves, nor just, even if they were constitutional. you can call upon somebody--but who?--to inquire who is the editor of the aurora. you are to inquire how he became possessed of a certain bill which he published; what kind of an inquiry is this? how he procured the sight of a bill, while it was pending in senate. why, is there any crime in printing a minute of our transactions? your bills are printed by your own order, for your use, and for the information of the other house; two hundred copies or more are circulated without any injunction of secrecy; they are sent off into every state of the union; and are you going to make inquiry how the editor of the aurora got to see one of them? why, are not your gallery doors open, and cannot a bill which has been read in public be possibly remembered, at least, cannot it be taken down in short-hand? and will you punish every man who shall repeat, print, or publish what is made public on this floor? suppose the editor of the aurora declines to inform your committee of the mode through which he obtains his information; he says it is convenient and useful to him, but his prior engagements do not permit him to divulge it to you; will you punish him for contempt? but suppose you possessed of the physical power necessary to procure the information you require by an application of the torture; while you are straining his muscles and dislocating his joints, what becomes of the grand palladium of american freedom? where is the liberty of the press, which is secured to the citizens of the union against federal usurpation? the constitution declares that you shall not infringe upon the liberty of the press; and a power expressly denied to the whole government, a single branch may not assume. here mr. c. was called to order by mr. bingham, of pennsylvania, who inquired what the liberty of the press had to do on a question of postponement? he believed, while the motion for postponement was under consideration, all debate on the merits of the main question to be out of order. it was contended to be in order to object on a postponement generally to the original motion, for an argument tending to defeat the original motion is reason for a general postponement. mr. cocke proceeded, and said he was glad to find that the freedom of debate in this house was not to be destroyed, though it might be interrupted; and he hoped that the freedom of the press would never be subverted while the government of the country rested upon the republican principle of representation. he admitted there were a great many ill-natured things said by many of our american presses, but that should never induce him to run the risk of destroying the most valuable and effectual bulwark for maintaining us free and independent, by using an instrument more fit to cut down the trunk of a tree, than to prune it of its tendril luxuriances. what was the engine now brought out against this freedom--an engine possessed of all the powers necessary to ensure its success? a printer is to be charged, is to be tried, judged of, and executed, by a body he has offended. where will you find men of nerve that will risk certain ruin? such may arise when the press is in danger. it was under these impressions that he wished to get rid of the business altogether. mr. tracy, of connecticut, did not wish to press the business; indeed his conduct had manifested this intention, for the original motion had been suffered to lie on the table a longer term than usual before it was called up, but even now when it was called up he did not wish to hurry it through. he should not refuse a moderate delay, but he hoped the motion from tennessee would not prevail, as it went to destroy the object without any further consideration. in answer to what fell from the gentleman from tennessee, he would say, that the objections he had made did not all of them apply, and if there was any which did apply, amendments could be made so as to conform them to the sense of the senate. he wished gentlemen would attend to the words of the resolution, and they would find that they did not carry them beyond what was prudent, mild, and proper. the committee are desired to inquire who is the editor of the aurora; this will appear to be a proper inquiry, for the person is not publicly known; the imprint declares the paper to be published for the heirs of benjamin franklin bache, but we do not know who are the heirs. the gentleman has told us it is no crime to publish the doings of this body; agreed, but is it nothing to publish untruths respecting the official conduct of the members of this body? is it no crime to publish a bill while before this house? but are printers at liberty to tell lies about our transactions? the aurora says, that the bill which it published had passed the senate; this every member knows to be contrary to the fact. the bill has not even to the present moment passed this body, it is still on your table liable to recommitment, amendment, or rejection. asking the editor how he came to print this falsehood, does not go to examine into the private mode by which conveyance of intelligence is made to that office; there can be no real intelligence, it being a falsehood. but suppose we have no power over this editor, because the press is free; suppose we cannot punish him for his slander, calumny, and falsehood, perhaps the inquiry may lead us to discover some persons whom we can punish; will it be said that the constitution is an impediment in our way to punish one of our own members, if he should be found guilty of abusing the confidence of his situation? at least we can exercise the power of removing one of our officers, if we should convict him of a secret league to transmit intelligence which is confidentially intrusted to his care. he did not mean to insinuate that any improper mode was used in conveying this intelligence; it might appear that the whole circumstance was a mere unintentional error; if so he should not go farther; but yet the printer could hardly have made the subsequent mistake in relation to the gentleman from south carolina, in declaring that he had never been consulted by the committee on mr. ross's bill; there was something in this calculated to produce an effect upon the public mind. he insinuates that the business of the senate is done in caucuses, into which the gentleman was not permitted to enter; for if he had, it is supposed he might have detected and defeated the mischiefs which are working against the public welfare. this is an abandoned slander, as is well known to every member of the house, for mr. pinckney did attend not one meeting only, as the editor of the aurora squeezed out some days subsequent to his first licentious publication, but he did attend every meeting, as he has candidly and honorably avowed in his place. the gentlemen had declared themselves the champions of the press; but surely gentlemen will not advocate such liberty as this--the liberty of publishing nothing but lies and falsehood. if by the liberty of the press is meant the publication of truth and just political information, it was proper to be supported; but he was desirous of maintaining, along with the liberty of the press, the liberty of the citizens, and the security of the government; he was not for sacrificing these latter objects to the licentiousness of the press. he was not inclined to enter into a newspaper controversy to maintain the dignity and reputation of the senate, nor did he think that gentlemen appreciated their own standing in society when they referred the individual members of this body to such a mode of defence against the shafts of calumny which a daring editor might hurl against them individually. mr. bloodworth, of north carolina, doubted the power of the senate to take cognizance of the conduct of members in communicating with their constituents, much less to punish them for publishing circumstances respecting which no injunction of secrecy had been imposed. he, however, assured the senate that he had not given the editor of the aurora any information on the subject before them, or indeed on any other, for the editor was a stranger to him; nor did he know that he ever called, at that printing office more than once or twice in his life. he hoped that the business would be postponed for the present, and he should have no objection to its being taken up at a future day, when gentlemen might be better prepared to meet it. mr. paine, of vermont, declared himself against the postponement, nor did he think that the motion of mr. pinckney was so inconsistent with the motion before the house as to render a postponement necessary; he thought the committee might inquire, and although the gentleman would stop, by his proposition, from proceeding in case it turned out to be a fabrication of the editor of the aurora, yet if it should be found not a fabrication of his, but that of a member or an officer of the house, it was admitted they might progress, without infringing the sacred liberty of the press. suppose that some person in the gallery should have furnished the spurious matter--and that may possibly be the case--will the sacred liberty of the press be violated if we order the doorkeeper to turn him out, and refuse him access in future? he thought the resolutions might be amended so as to give greater satisfaction than they do at present; for his own part he was not willing to declare all at present which they contained. he thought the business would be simplified if the committee were directed to consider and report what measures would be proper to adopt in respect to a publication containing various untruths of the proceedings of the senate, and if the question of postponement was lost he meant to move several amendments for that purpose. mr. mason, of virginia, had no objection to meet the question at the present moment, but he thought it of such importance, both to the senate and the citizens of the united states, that it should be taken up and discussed in a solemn and serious manner; not hastily and lightly, as some gentlemen seemed to think who were opposed to the postponement for a few days; if, however, the opposition to the postponement was persisted in, he had no doubt but the subject would prove itself well worth a discussion of several days, and that the ultimate decision would not be made till a period more remote than that moved for by his friend from south carolina. he therefore recommended to gentlemen to explore well the ground which the motion of the gentleman from connecticut had taken, and consider seriously of the consequences to which they would be led in pursuing their object. what was to be the course of their proceeding? what were the embarrassments likely to arise therein? he called the house to view the delicacy of the situation in which they would be involved while defining their newly discovered privileges and subverting the old acknowledged privileges of the liberty of the press; he said the delicacy of their situation, because he considered it a delicate one, for he was far from believing that the privileges of the senate were as unlimited as the gentleman from connecticut contended they were; if so, and they proceed to touch the liberty of the press, which they may discover in the end to be secured against the invasion, they will be compelled to retrace every step they are now taking, which will neither redound to their honor nor discernment. they should be careful how they expose themselves to popular scrutiny in cases respecting their own power, for the public mind had been already considerably agitated, at what many conceived to be an unconstitutional exercise of power. if, session after session, attempts were made to fetter the freedom of the press, the people of the united states would watch with anxious regard every movement of this body. a measure which originated in the senate, and was subsequently acceded to by the other branch of the legislature, had been just ground of alarm. it is no wonder that they watch our bills as well as our laws, for it must be recollected by many of the gentlemen who hear me, that the bill called the sedition bill was first introduced here, and that, instead of being what it afterwards became, it was a bill more particularly to define treason and sedition. the good sense of the house, during the time it was upon the table and undergoing a political dissection, cut off from it many of those monstrous excrescences which at first disfigured it, and at last trimmed it into a shapely form; but after all it was removed below stairs in a condition not fit to meet the eye of our constituents--even obliged to undergo a decapitation; the head or the title of it was struck off, and instead of being a bill defining treason--which is a thing totally out of our power, the constitution having declared in what alone treason should consist--instead of being denominated a bill against sedition, it took the obnoxious head of being a bill to amend the law for punishing certain crimes against the united states. mr. anderson, of tennessee, did not rise with an intention of entering into the merits of the general question, as to the extent of the privileges of the senate, which he conceived to be of great moment, but merely to remark, as gentlemen alleged that the public mind was already agitated on the subject, the postponement would tend to increase the degree of agitation, which he conceived it was the wish of gentlemen on both sides to have allayed as soon as possible. he therefore concluded that it would be better to go on with the business and come as soon as possible to a decision. one gentleman had said it ought to go to the judicial courts, and that the attorney general should be directed to prosecute: well, then, that gentleman should give his consent to send the business to a committee, in order to inquire whether the case would warrant this interference. mr. read, of south carolina, would not oppose the motion of his honorable colleague for a postponement, if he had required it on his own account, or if its being negatived would prevent him from bringing forward the preamble and resolution he had read in his place, and at a proper time of having them discussed; but neither of these circumstances were urged; therefore, as his colleague neither required time for preparation nor would be prevented from offering and supporting the intended amendment, he should vote against the postponement. mr. dayton had the highest confidence in the honor of the gentleman from south carolina, (mr. pinckney,) and he never suffered himself to doubt of the truth of the declaration which had been made. he thought the resolutions might be varied so as to get rid of the idea which the gentleman objected to, in respect to the motion having been brought forward at his instance; and might be amended as suggested by the gentleman from vermont, (mr. paine,) so as to reconcile it still more to the sentiments of the senate. this being his view of the subject, he wished the business to proceed, and should therefore vote against the postponement. the question on postponing till tuesday next, was now put, and the yeas and nays being called, stood yeas , nays , as follows: yeas.--messrs. baldwin, bloodworth, brown, cocke, franklin, langdon, mason, nicholas, and pinckney. nays.--messrs. anderson, bingham, chipman, dayton, foster, goodhue, greene, gunn, hillhouse, laurance, livermore, lloyd, paine, read, ross, schureman, tracy, watson and wells. so the motion was lost. mr. nicholas, of virginia, wished to ask for information. was it intended by this resolution to charge the committee with inquiring into a breach of privilege as it respected the majority of this body? for the resolution itself furnished no correct idea on this point. he wished also to know whether it was intended that the senate should declare that the publication was a breach of privilege? mr. tracy, of connecticut, said that if the gentleman wished for information from him, he would endeavor to give it. he conceived it would be better to pursue the mode of inquiry in the first instance, through the intervention of a committee, and not make at once a decision whether the publication was or was not a breach of privilege; and further, that the committee should report to the senate what other matters were the proper subjects for the senate's inquiry. he would not undertake to say at this time whether there was a breach of privilege at all, or whether that breach was in respect to a majority of the house, or of the privilege of a single member. mr. marshall, of kentucky, was of opinion that if the subject itself was a proper one to be inquired into, then the mode was well devised, and one liable to few or no objections; but there was another circumstance to which he begged permission to call the attention of the senate. he observed that the resolution pointed only to one object, and that was the publications in the aurora; he did not think this went far enough, if it was intended to be any thing more than a party manoeuvre. if gentlemen meant to defend the honor of this body, they should avoid any thing like partiality, and direct their inquiry to all breaches of privilege, by publications in newspapers, let their publishers be whom they might. believing that the gentlemen were serious in the present undertaking, he wished them to give it the appearance of impartiality without which it would reflect disgrace on their proceedings. gentlemen have complained of the slander and calumny thrown upon them by the publications in the aurora, but, however detestable they might be, he held in his hand one still more vile and flagrant. he would read it, and then move to amend the resolution before the house by adding that the committee be directed to inquire who is the editor of the united states gazette, and by what authority he published in that paper the following paragraphs. it passed in the negative--yeas , nays , as follows: yeas.--messrs. anderson, baldwin, bloodworth, cocke, franklin, langdon, lloyd, marshall, mason, nicholas, and pinckney. nays.--messrs. bingham, chipman, dayton, foster, greene, gunn, hillhouse, laurance, livermore, paine, read, ross, schureman, tracy, watson, and wells. _the judiciary._ agreeably to notice given yesterday, mr. pinckney had leave to bring in a bill to amend the act entitled "an act to establish the judicial courts of the united states"; which was read and ordered to the second reading. on introducing the above bill mr. pinckney addressed the chair as follows: mr. president: when i first had the honor of addressing you on this subject it appeared to me necessary to move an amendment to the constitution; on reflection, however, i am since convinced that the more regular and expeditious mode would be to move an amendment to the law establishing the judicial courts of the united states--by this means the law may be passed during the present session, and we shall the more readily obtain the limitation we contend for. as the judiciary is among the most important departments in our government, as it reaches every situation in society--neither the rich, the honored, nor the humble, being without its influence or above its control--as it is the department to which not only the lives and fortunes, but the characters of our citizens are peculiarly intrusted, it becomes us to be extremely careful that the judges should not only be able and honest men, but independent in their situation. our constitution has in some degree secured their independence by giving them permanent salaries, and rendering them ineligible to the legislature; but in vain will we consider them independent, in vain may we suppose their opinion beyond the control or interference of the executive, until we have determined it shall not be in his power to give them additional offices and emoluments, while judges; until, in short, we confine them wholly to their duties as judges, and teach them to believe that in the execution of the laws they should consider themselves as little obliged to please the president, or to fear his disapprobation, as that of any other man in the government. this can only be done by preventing them accepting other offices, while they continue as judges, and thus depriving him of the power of heaping upon them additional favors and emoluments. it is an established maxim, and i hope will for ever remain so, that the legislature and judiciary should be as distinct as the nature of our government will admit; that is, that the same men shall not, in a deliberative capacity, agree to measures which they shall afterwards have a right to explain and decide upon in a judicial one. the reason is obvious; that the judges should, in a calm and unprejudiced manner, explain what the law literally is, and not what it ought to be; that they should not be allowed to carry upon the bench those passions and prejudices which too frequently prevail in the adoption and formation of legislative acts and treaties, and which never fail to give an irresistible bias to the opinions of a judge who has been concerned in making them. the truth of this reasoning is now so generally conceded, that there is not a man who knows any thing of government that will attempt to controvert it; the constitutions of all the states have sanctioned it, and if the opinions of the federal convention ought to have weight, they so strongly insisted upon it as even to refuse, after repeated trials, associating the judges with the president in the exercise of his revisionary power; indeed a gentleman high in office, and who held both situations at the same time as judge and envoy, is himself decidedly of this opinion, for in his charge to the eastern juries he has these expressions: "wise and virtuous men have thought and reasoned very differently respecting government; but in this they have at length very unanimously agreed, viz: "that its powers should be divided into three distinct independent departments, the executive, legislative, and judicial. but how to constitute and balance them so as best to guard against abuse and fluctuation, and preserve the constitution from encroachments, are points on which there continues to be a great diversity of opinions, and on which we all have as yet much to learn. the constitution of the united states has therefore instituted these departments, and much pains have been taken so to form and define them, as that they may operate as checks one upon the other, and keep each within its proper limits: it being universally agreed to be of the last importance to a free people, that those who are vested with legislative, executive, and judicial powers should rest satisfied with their respective portions of power; and neither encroach on the provinces of each other, nor suffer themselves or the others to intermeddle with the rights reserved by the constitution to the people."" if, then, there can be no doubt of its propriety when applied to a judge, in ordinary cases, how much more forcibly does it apply to an envoy who concludes a treaty, which when ratified is to become the supreme law of the land; how strongly must the negotiation of so important and in many instances so difficult a business, be impressed on his mind! he will no doubt retain the journals of his proceedings and opinions, and perfectly recollect the progress and termination of every proposal which was compromised or rejected. it must be difficult for him to forget the attempts to which ministers are sometimes liable in condescending where their object is honorable; he will remember what his opinions were upon particular points; and, whether they were successful or not, his general character may be that of not very easily yielding them. in short, it is impossible for him to be that cool and unbiased interpreter of the treaty which he otherwise might have been, had he not been concerned in concluding it. the constitution contemplates an independent judiciary. the public, therefore, will expect and have a right to demand, upon a questions, a fair and impartial trial by judges, whose minds are open to conviction, and unprejudiced by party opinions; by men who have not been concerned in forming a law or treaty, but who are totally unfettered by the recollection of what passed at the negotiation, or what might have been wished or expected by either party, as judges, candidly and impartially to determine upon every question that may come before them. these reasons are certainly sufficient to convince any one that this provision is necessary to the independence of the judges, and the pure and unbiased exposition of the laws: that unless it is done, their independence is a visionary and unfounded thing. that if the president can hold out to the judges the temptation of being envoys, or of giving them other offices, and that he still can continue them as judges, that on any question in which the president or his friends, or the government may be concerned, it might have a tendency to influence them in opinion; that it was not frequently to be expected they would be unmindful from whom they received the present appointments, or so entirely indifferent to their own, or the advancement of their families as not sometimes to recollect that from the same source other and greater emoluments might in future be derived; that ingratitude was not often the vice of public officers while their patron continued in power; that on subjects where his character, his feelings, or the public opinion of his acts were in question, our judges might reasonably be expected not to be charged with apathy or inattention; and that the true way to assert the dignity of the president and the honor and independence of the judges, was to place it out of the power of the one to offer, and the other to accept additional favors. that a judge ought never to be absent from the united states, or be drawn from his official situation and leave an undue proportion of its duties to be performed by the remainder of the bench; that the number of judges were exactly proportioned to the duties they were to perform; that to withdraw one and be incapable of supplying the vacancy, was not only to require the inexecution of the laws in some parts of the union, but to invidiously harass the other, while a favorite or possibly too complying a judge was sent to gratify his curiosity or indulge his taste on some agreeable or easy mission. that no man ought to hold two offices under the same government, particularly where they were important; that most of the states had regulations to prevent this, and that nothing more contributed to the extravagance of a government or the corruption and immorality of its citizens, than the power to heap many lucrative and perhaps useless offices on the same person; that it had a tendency to make them servile, to render them the tools and sycophants of men in power, and to degrade the character of office. that in case of the impeachment of the president of the united states, the chief justice was to preside, and there was no provision in the constitution to supply the vacancy; therefore, if an impeachment was to take place in his absence, it must remain undecided until the chief justice could be sent for; that this, if recollected by the executive, should of itself have been an insuperable objection--in point of propriety, it always is so, but in point of delicacy it ought most strongly to have been so, because, here the president, is the officer, and indeed the only one, who is implicated in the possibility of its inconvenience arising from absence of the chief justice. it is true it is to be presumed that the man who is elected by his countrymen to administer the important office of president, will be always so wise and virtuous as to make it very unlikely an impeachment of him should take place--the thing, however, is possible. in times of difficulty where opinions run high, and where those opinions are strongly divided between numerous and powerful parties, it is impossible to foretell what may happen. no man is said to be wise at all times, and our own experience and intercourse with the world must convince us that there are moments of enthusiasm, or of heat, or surprise, when the most cautious men are not quite so prudent as others. i will therefore ask, and do it with great deference, as the president is the only officer on whose trial the chief justice is to preside, or on whose impeachment his absence would be a public inconvenience, is it not perhaps presuming too far on his own infallibility or incapacity to err, to send the only officer to a distant country, without whose presence, in case of an impeachment, a court could not be formed to try him? i ask it with deference, and am sure these observations must have escaped the executive, or the chief justice never would have been sent. to evince the absolute necessity of some provision being made, it is to be observed that, as the law stands now, a judge might not only accept any other appointment from the executive of the union, but he may accept them from the individual states, or, what is still more dangerous, from a foreign power, and thus become the minion of the one or the tool of the other, as circumstances or his own interest may prompt him. few men will deny the necessity of some provision here, and that the present is an unwise and degrading situation for a national judiciary. most of the states have carefully guarded their tribunals against a danger of this kind. the state of south carolina, to which i belong, is remarkably express on this subject. aware of the necessity of an independent judiciary, her constitution, in speaking of that department, has these words: "nor shall the judges, hold any other office of profit or trust under this state, the united states, or any other power," a prohibition not more complete or full than ought to exist in the case of the federal judges. a strange doctrine has lately been circulated, which it is my duty to remark on--it is, that this bill is to be considered as a reflection on the president for nominating a chief justice, and the senate for having confirmed it, and that the senate, by agreeing to it, will join in the censure.[ ] being always ready to approve, and to praise what is meritorious, it is with great reluctance i can ever be brought to censure--i have no such intention at present. i can readily believe that many of the inconveniences i have mentioned may have escaped the president in the recent nomination. it is here i have always disliked it. i believe the general sentiment to be against it; but, be that as it may, no such reason ought ever to have weight in this house. if the thing is right, if it is now considered as proper for us to say, that the judges must stay at home, and be confined to their judicial duties, and hold no other offices while judges, we should do it, and not consider whether it is pleasing or otherwise to the president; he must understand public business too well to consider it in the nature of a reflection. we every day alter existing laws and regulations, without considering such changes as reflections on a preceding legislature or president, and i should be sorry to suppose, that, while a bill was under discussion, the fear of displeasing the executive should ever be used as a reason for its rejection. he has always a right to give his opinion in the exercise of his revisionary authority, and when he does, we will deliberately and respectfully attend to it. one remark more, and i shall no longer trespass on the patience of the house: it is, that a reason has been given for leaving the president at liberty to send a judge on any delicate or difficult mission, which i do not conceive reputable either to the political or literary character of our country--it is said the judges may be the most able and qualified men the president can find, and that being prevented from sending one of them, he may sometimes be obliged to send inferior and less important characters, and that the public interest might suffer. how far the present or any former supreme bench may justify the observation it is not for us to say, but never will i suppose that among a people so numerous and enlightened, so alive to their country's welfare, and hundreds, perhaps thousands of whom are so devoted to public business, can only six men be found capable of discharging any political duties that government might require; the idea is too degrading to our national character to be entertained for a moment. for these reasons i have thought it my duty to introduce this bill, and i trust it will pass and become a law. saturday, march . _breach of privilege._ and, on motion to agree to the original motion as amended, it passed in the affirmative--yeas , nays , as follows: yeas.--messrs. anderson, chipman, dayton, foster, goodhue, greene, hillhouse, latimer, laurance, livermore, lloyd, marshall, paine, read, ross, schureman, tracy, watson, and wells. nays.--messrs. baldwin, bloodworth, cocke, franklin, langdon, mason, nicholas, and pinckney. so it was _resolved_, that the committee of privileges be, and they are hereby, directed to consider and report what measures it will be proper for the senate to adopt, in relation to a publication in the newspaper, printed in the city of philadelphia, on wednesday morning the th of february, , called the general advertiser, or aurora; in which it is asserted, that the bill prescribing the mode of deciding disputed elections of president and vice president of the united states had passed the senate, when in fact it had not passed; in which it is also asserted, that the honorable mr. pinckney, a senator from the state of south carolina, and a member of the committee who brought before the senate the bill aforesaid, had never been consulted on the subject; whereas, in fact, he was present at each meeting of the committee; and, generally, to report what measures ought to be adopted in relation to sundry expressions contained in said paper, respecting the senate of the united states, and the members thereof, in their official capacity. tuesday, march . _breach of privilege._ the senate took into consideration the report of the committee of privileges, on the measures that will be necessary to adopt in relation to a publication in the newspaper, printed in the city of philadelphia, on wednesday morning, the th of february last, called the general advertiser, or aurora; and, on motion to adopt the first resolution reported, it was agreed to divide the motion, and that the question should be taken on the following words: _resolved_, that the said publication contains assertions, and pretended information, respecting the senate, and the committee of the senate, and their proceedings, which are false, defamatory, scandalous, and malicious; tending to defame the senate of the united states, and to bring them into contempt and disrepute, and to excite against them the hatred of the good people of the united states. and on the question, to adopt this part of the resolution, reported by the committee, it passed in the affirmative--yeas , nays , as follows: yeas.--messrs. anderson, bingham, brown, chipman, dayton, dexter, foster, goodhue, greene, gunn, hillhouse, laurance, livermore, lloyd, paine, read, ross, schureman, tracy, and wells. nays.--messrs. baldwin, bloodworth, cocke, franklin, langdon, marshall, mason, and nicholas. wednesday, march . the senate resumed the consideration of the report of the committee of privileges, on the measures proper to adopt in relation to a publication in the newspaper called the aurora, of the th of february last; and it was agreed to amend the second member of the first resolution reported, as follows: "and that the said publication is a high breach of the privileges of this house;" and, on the question to agree thereto, as amended, it was determined in the affirmative--yeas , nays , as follows: yeas.--messrs. bingham, chipman, dexter, foster, goodhue, greene, gunn, hillhouse, laurance, livermore, lloyd, paine, read, ross, schureman, tracy, and wells. nays.--messrs. anderson, baldwin, bloodworth, brown, cocke, franklin, langdon, marshall, mason, nicholas, and pinckney. thursday, march . the senate resumed the consideration of the report of the committee of privileges, on the measures proper to be adopted in relation to a publication of the th of february last, in the newspaper called the aurora; and it was agreed to fill the blanks in the second resolution reported, with the words "monday th, twelve o'clock," and, at the close of the resolution, with the words "twenty-second;" and, on motion, to adopt this part of the report, as follows: _resolved_, that william duane, now residing in the city of philadelphia, the editor of the said newspaper called the general advertiser, or aurora, be, and he is hereby, ordered to attend at the bar of this house, on monday, the th day of march inst., at o'clock, at which time he will have an opportunity to make any proper defence for his conduct, in publishing the aforesaid false, defamatory, scandalous, and malicious assertions, and pretended information; and the senate will then proceed to take further order on the subject; and a copy of this and the foregoing resolution, under the authentication of the secretary of the senate of the united states, and attested as a true copy by james mathers, sergeant-at-arms for the said senate, and left by the said sergeant-at-arms with the said william duane, or at the office of the aurora, on or before the twenty-second day of march instant, shall be deemed sufficient notice for the said duane to attend in obedience to this resolution: it passed in the affirmative--yeas , nays , as follows: yeas.--messrs. bingham, chipman, dayton, dexter, foster, goodhue, greene, gunn, hillhouse, laurance, livermore, lloyd, paine, read, ross, schureman, tracy, and wells. nays.--messrs. anderson, baldwin, bloodworth, cocke, franklin, langdon, marshall, mason, nicholas, and pinckney. so the report of the committee was adopted, as follows: whereas, on the th day of february, now last past, the senate of the united states, being in session, in the city of philadelphia, the following publication was made in the newspaper, printed in the said city of philadelphia, called the general advertiser, or aurora, viz: "in our paper of the th ult. we noticed the introduction of a measure into the senate of the united states, by mr. ross, calculated to influence and affect the approaching presidential election, and to frustrate, in a particular manner, the wishes and interests of the people of the commonwealth of pennsylvania. "we this day lay before the public a copy of that bill as it has passed the senate. "some curious facts are connected with this measure, and the people of the union at large are intermediately, and the people of this state immediately interested to consider the movements, the mode of operation, and the effects. "we noticed a few days ago the caucuses (or secret consultations) held in the senate chamber. an attempt was made in an evening paper to give a counteraction (for these people are admirable at the system of intrigue) to the development of the aurora, and to call those meetings jacobinical; we must cordially assent to the jacobinism of those meetings--they were in the perfect spirit of a jacobinical conclave. "the plain facts we stated are, however, unquestionable; but we have additional information to give on the subject of those meetings. we stated, that intrigues for the presidential election were among the objects; we now state it as a fact that cannot be disputed upon fair ground, that the bill we this day present was discussed at the caucus on wednesday evening last. "it is worthy of remark how this bill grew into existence. "the opponents of independence and republican government, who supported mr. ross in the contest against governor mckean, are well known by the indecency, the slander, and the falsehood of the measures they pursued--and it is well known that they are all devoted to the federal party, which we dissected on monday. mr. ross proposed this bill in the federal senate, (how consistently with the decency of his friends will be seen;) a committee of five was appointed to prepare a bill on the subject: on this committee, mr. pinckney, of south carolina, was appointed. on thursday morning last (the caucus held the preceding evening) mr. ross informed mr. pinckney that the committee had drawn up a bill on the subject, when in fact mr. pinckney had never been consulted on the subject, though a member of the committee! the bill was introduced and passed as below. "on this occasion it may not be impertinent to introduce an anecdote which will illustrate the nature of caucuses, and show that our popular government may, in the hands of a faction, be as completely abused as the french constitution has been, by the self-created consuls: "in the summer session of , when federal thunder and violence were belched from the pestiferous lungs of more than one despotic minion, a caucus was held at the house of mr. bingham, in this city. it was composed of members of the senate, and there were present seventeen members. the senate consisting of thirty-two members, this number was of course a majority, and the session was a full one. "prior to deliberation on the measures of war, navy, army, democratic proscription, &c., it was proposed, and agreed to, that all the members present should solemnly pledge themselves to act firmly upon the measures to be agreed upon by the majority of the persons present at the caucus. "the measures were perfectly in the high tone of that extraordinary session. but upon a division of the caucus it was found that they were divided, nine against eight. this majority, however, held the minority to their engagement, and the whole seventeen voted in senate upon all the measures discussed at the caucus. "thus it is seen that a secret self-appointed meeting of seventeen persons dictated laws to the united states, and not only that nine of that seventeen had the full command and power over the consciences and votes of the other eight, but that nine possessed, by the turpitude of the eight, actually all the power which the constitution declares shall be vested in the majority only. in other words, a minority of nine members of the senate ruled the other twenty-three members. "it is easily conceivable, as in the recent changes in france, that this spirit of caucusing may be conducted in progression down to two or three persons; thus three leading characters may agree to act upon measures approved by any two of them; these three may add two others, and they would be a majority of five: and those adding four others would be a majority of nine; and this nine possess all the power of a majority of twenty-three! "yet such is the way we are treated by those who call themselves federalists. "the following bill is an offspring of this spirit of faction secretly working; and it will be found to be in perfect accord with the outrageous proceedings of the same party in our state legislature, who are bent on depriving this state of its share in an election that may involve the fate of the country and posterity." _resolved_, that the said publication contains assertions and pretended information, respecting the senate, and the committee of the senate and their proceedings, which are false, defamatory, scandalous, and malicious, tending to defame the senate of the united states, and to bring them into contempt and disrepute, and to excite against them the hatred of the good people of the united states: and that the said publication is a high breach of the privileges of this house. _resolved_, that william duane, now residing in the city of philadelphia, the editor of the said newspaper called the general advertiser, or aurora, be, and he is hereby, ordered to attend at the bar of this house on monday, the th day of march, inst., at o'clock, at which time he will have opportunity to make any proper defence for his conduct, in publishing the aforesaid false, defamatory, scandalous, and malicious, assertions and pretended information; and the senate will then proceed to take further order on the subject: and a copy of this and the foregoing resolution, under the authentication of the secretary of the senate of the united states, and attested as a true copy by james mathers, sergeant-at-arms for the said senate, and left by the said sergeant-at-arms with the said william duane, or at the office of the aurora, on or before the twenty-second day of march, instant, shall be deemed sufficient notice for the said duane to attend in obedience to this resolution. saturday, march . mr. dayton, from the committee of privileges, to whom it was referred to prepare and lay before the senate a form of proceedings in the case of william duane, reported in part; which report was read, amended, and agreed to, as follows: when william duane shall present himself at the bar of the house, in obedience to the order of the th inst., the president of the senate is to address him as follows: st. william duane: you stand charged by the senate of the united states, as editor of the newspaper called the general advertiser, or aurora, of having published in the same, on the th of february, now last past, false, scandalous, defamatory, and malicious assertions, and pretended information, respecting the said senate and committee of the senate, and their proceedings, tending to defame the senate of the united states, and to bring them into contempt and disrepute, and to excite against them the hatred of the good people of the united states; and therein to have been guilty of a high breach of the privileges of this house. then the secretary shall read the resolutions of the senate, passed the th instant, with the preamble; after which the president is to proceed as follows, viz: st. have you any thing to say in excuse or extenuation for said publication? dly. if he shall make no answer, the sergeant-at-arms shall take him into custody, and retire with him from the senate chamber until the senate shall be ready for a decision, at which time the sergeant-at-arms shall again set him at the bar of the house, and the president of the senate is to pronounce to him the decision. dly. if he shall answer, he is to continue at the bar of the house until the testimony (if any be adduced) shall be closed, and he shall retire while the senate are deliberating on the case; and when a decision is agreed upon, the said duane, being notified of the time by the sergeant-at-arms, verbally, or by a written notice left at his office, shall appear at the bar of the house, and the president of the senate is to pronounce to him the decision. monday, march . the vice president communicated a letter, signed william duane, requesting to be heard by counsel, and have process awarded to compel the attendance of witnesses in his behalf, on the summons served on him the d inst., for a high breach of the privileges of the senate; which letter was read. a motion was made that william duane be permitted to be heard by counsel, agreeably to his request; and, after debate, the said william duane appeared at the bar of the house, agreeably to the summons of the d instant; a return thereon having been made in the words following: city of philadelphia, _march , _. then i, the subscriber, sergeant-at-arms for the senate of the united states, left a true and attested copy of the within at the office of the aurora. james mathers. and the charge against the said william duane having been read, he repeated his request to be heard by counsel. on which he was ordered to withdraw, and a motion was made as follows: _resolved_, that, william duane be permitted to be heard by counsel, he having appeared, agreeably to the order of the senate, and requested that he might be heard by counsel. on which a motion was made to strike out all the motion subsequent to the word "duane," and insert: having appeared at the bar of the senate and requested to be heard by counsel, on the charge against him for a breach of privileges of the senate, he be allowed the assistance of counsel while personally attending at the bar of the senate; who may be heard in denial of any facts charged against said duane, or in excuse and extenuation of his offence. and it was agreed to divide the motion, and that the question be taken on striking out; which passed in the affirmative--yeas , nays , as follows: yeas.--messrs. bingham, chipman, dayton, dexter, foster, goodhue, greene, hillhouse, latimer, laurance, livermore, lloyd, paine, read, ross, schureman, tracy, and wells. nays.--messrs. anderson, baldwin, bloodworth, brown, cocke, franklin, langdon, marshall, mason, nicholas, and pinckney. a motion was made to amend the amendment by striking out these words "he be allowed the assistance of counsel while personally attending the bar of the senate; who may be heard in denial of any facts charged against said duane, or in excuse and extenuation of his offence;" and to insert "he be permitted to have assistance of counsel for his defence;" and it was agreed to divide the motion, and that the question should be taken on striking out, which passed in the negative--yeas , nays , as follows: yeas.--messrs. anderson, baldwin, bloodworth, brown, cocke, franklin, langdon, marshall, mason, and nicholas. nays.--messrs. bingham, chipman, dayton, dexter, foster, goodhue, greene, hillhouse, latimer, laurance, livermore, lloyd, paine, read, ross, schureman, tracy, and wells. and, on the question to agree to the original amendment, it passed in the affirmative--yeas , nays , as follows: yeas.--messrs. baldwin, bingham, bloodworth, chipman, dayton, dexter, foster, franklin, goodhue, greene, hillhouse, latimer, laurance, livermore, lloyd, paine, read, ross, schureman, tracy, and wells. nays.--messrs. anderson, brown, cocke, langdon, marshall, mason, nicholas, and pinckney. and the question being taken on the motion as amended, it was _resolved_, that william duane having appeared at the bar of the senate, and requested to be heard by counsel, on the charge against him for a breach of privileges of the senate, he be allowed the assistance of counsel while personally attending at the bar of the senate, who may be heard in denial of any facts charged against said duane, or in excuse and extenuation of his offence. a motion was made that it be an instruction to the committee of privileges to report in what manner witnesses shall be compelled to attend the senate in support of the charge against william duane, and in his defence against that charge. and, after debate, the further consideration thereof was postponed. _resolved_, that a copy of the resolution last agreed to be sent to william duane, and at the same time, he be ordered to attend at the bar of this house at o'clock, on wednesday next. wednesday, march . the vice president communicated a letter signed william duane, stating that he had received "an authenticated copy of the resolution of monday last in his case," and enclosing certain papers stated to be a correspondence between him and his intended counsel, marked a, b, and c, and that he finds himself "deprived of all professional assistance under the restrictions which the senate have thought fit to adopt. he therefore thinks himself bound, by the most sacred duties, to decline any further voluntary attendance upon that body, and to leave them to pursue such measures in this case, as in their wisdom they may deem meet;" and the letter was read. on motion that the papers referred to in the letter be read, it passed in the negative. on motion, the senate took into consideration the report of the committee of privileges, who were ordered to prepare and lay before the senate a form of proceedings in the case of william duane; and, after debate, the order of the day was called for. _ordered_, that the sergeant-at-arms, at the bar of the house, do call william duane. and the said william duane did not appear. whereupon, _resolved_, that as william duane has not appeared at the bar of this house, in obedience to the order of the th instant, and has addressed a letter to the president of the senate, which has been read this morning, in which he refuses any further attendance, his letter be referred to the committee of privileges, to consider and report thereon. on motion, the senate resumed the consideration of the report of the committee of privileges of the th instant. and on the question to agree to the first resolution, amended as follows: _resolved_, that all testimony shall be taken by the committee of privileges, who are hereby authorized to send for persons, papers, and records, and compel the attendance of witnesses which may become requisite for the execution of their commission: it passed in the affirmative--yeas , nays , as follows: yeas.--messrs. bingham, chipman, dayton, dexter, foster, goodhue, greene, hillhouse, latimer, laurance, livermore, lloyd, paine, read, ross, schureman, tracy, and wells. nays.--messrs. anderson, baldwin, bloodworth, brown, cocke, franklin, langdon, marshall, mason, nicholas, and pinckney. on motion, the th resolution was adopted, as follows: _resolved_, that all testimony taken by said committee shall be reported to the senate, and kept on file by the secretary. and having agreed to postpone the other resolutions reported, the senate adjourned. thursday, march . mr. dayton, from the committee of privileges, to whom was referred the letter of william duane, on the th instant, made report, as follows: _resolved_, that william duane, editor of the general advertiser, or aurora, having neglected and refused to appear at the bar of this house, at o'clock, on the th day of march instant, pursuant to the order of the th instant, of which order he had been duly notified; and having sent the following letter to the president of the senate, which has been communicated to the senate, viz: "_to the president of the senate_: "sir: i beg of you to lay before the senate this acknowledgment of my having received an authenticated copy of their resolutions on monday last, in my case. copies of those resolutions i transmitted to messrs. dallas and cooper, my intended counsel, soliciting their professional aid; a copy of my letter is enclosed marked a. their answers i have also the pleasure to enclose, marked b and c. i find myself, in consequence of these answers, deprived of all professional assistance, under the restrictions which the senate have thought fit to adopt. i therefore think myself bound by the most sacred duties to decline any further voluntary attendance upon that body, and leave them to pursue such measures in this case, as, in their _wisdom_, they may deem meet. i am, sir with perfect respect, "wm. duane." is guilty of a contempt of said order, and of this house, and that, for said contempt, he, the said wm. duane, be taken into the custody of the sergeant-at-arms attending this house, to be kept subject to the further orders of the senate. on motion to agree to this first resolution reported, it passed in the affirmative--yeas , nays , as follows: yeas.--messrs. dayton, dexter, foster, goodhue, greene, hillhouse, latimer, laurance, livermore, lloyd, paine, read, ross, schureman, tracy, and wells. nays.--messrs. anderson, baldwin, bloodworth, brown, cocke, franklin, langdon, marshall, mason, nicholas, and pinckney. on motion to strike out these words from the second resolution reported: "and all marshals, deputy marshals, and civil officers of the united states, and every other person, are hereby required to be aiding and assisting to you in the execution thereof:" it passed in the negative--yeas , nays , as follows: yeas.--messrs. anderson, baldwin, bloodworth, brown, cocke, franklin, langdon, mason, nicholas, and pinckney. nays.--messrs. bingham, chipman, dayton, dexter, foster, goodhue, greene, hillhouse, latimer, laurance, livermore, lloyd, marshall, paine, read, ross, schureman, tracy, and wells. the second resolution reported was read as follows: _resolved_, that a warrant issue signed by the president of the senate, in the following form, viz: united states, } _the th day of march, _.} ss. whereas the senate of the united states, on the th day of march, , then being in session in the city of philadelphia, did resolve that a publication in the general advertiser, or aurora, a newspaper printed in the said city of philadelphia, on wednesday, the th day of february, then last past, contained assertions and pretended information respecting the senate, and committee of the senate, and their proceedings, which were false, defamatory, scandalous, and malicious, tending to defame the senate of the united states, and to bring them into contempt and disrepute, and to excite against them the hatred of the good people of the united states; and that the said publication was a high breach of the privileges of the house. and whereas the senate did then further resolve and order, that the said william duane, resident in the said city, and editor of said newspaper, should appear at the bar of the house, on monday, the th day of march, instant, that he might then have opportunity to make any proper defence for his conduct in publishing the aforesaid false, defamatory, scandalous, and malicious assertions and pretended information. and whereas the said william duane did appear on said day at the bar of the house, pursuant to said order, and requested counsel; and the senate, by their resolution of the th day of march, instant, _resolved_, that william duane, having appeared at the bar of the senate, and requested to be heard by counsel on the charge against him for a breach of privileges of the senate, he be allowed the assistance of counsel while personally attending at the bar of the senate, who might be heard in denial of any facts charged against said duane, or in excuse and extenuation of his offence, and that the said william duane should attend at the bar of the senate on wednesday, then next, at o'clock, of which the said duane had due notice. and whereas said william duane, in contempt of the said last mentioned order, did neglect and refuse to appear at the bar of the said senate, at the time specified therein; and the senate of the united states, on the th day of march, instant, did thereupon resolve that the said william duane was guilty of a contempt of said order and of the senate, and that for said contempt he, the said william, should be taken into custody of the sergeant-at-arms attending the senate, to be kept for their further orders. all which appears by the journals of the senate of the united states, now in session in the said city of philadelphia. these are, therefore, to require you, james mathers, sergeant-at-arms for the senate of the united states, forthwith to take into your custody the body of the said william duane, now resident in the said city of philadelphia, and him safely to keep, subject to the further order of the senate; and all marshals, deputy marshals, and civil officers, of the united states, and every other person, are hereby required to be aiding and assisting to you in the execution thereof; for which it shall be your sufficient warrant. given under my hand, this th day of march, . thomas jefferson, _president of the senate of the u. s._ on motion to agree to this resolution as reported, it passed in the affirmative--yeas , nays , as follows: yeas.--messrs. bingham, chipman, dayton, dexter, foster, goodhue, greene, hillhouse, latimer, laurance, livermore, lloyd, paine, read, ross, schureman, tracy, and wells. nays.--messrs. anderson, baldwin, bloodworth, brown, cocke, franklin, langdon, marshall, mason, nicholas, and pinckney. so the report of the committee was adopted. monday, march . _respect to mrs. washington._ a message from the house of representatives informed the senate that the house have passed a bill, entitled "an act to extend the privilege of franking letters and packages to martha washington." tuesday, april . the bill, sent from the house of representatives entitled "an act to extend the privilege of franking letters and packages to martha washington," was read the second time; and, by unanimous consent, it was read the third time and passed. tuesday, april . the bill for the defence of the merchant vessels of the united states was read the second time, and referred to messrs. goodhue, nicholas, and tracy, to consider and report thereon to the senate. the bill "for the removal and accommodation of the government of the united states" was read the second time and referred to messrs. ross, lloyd, and hillhouse, to consider and report thereon to the senate. the bill to repeal the "act laying duties on mills and implements employed in the manufacture of snuff," was read the second time, and referred to messrs. bingham, livermore, and laurance, to consider and report thereon to the senate. the bill permitting the exportation of some gunpowder, also a number of muskets and cutlasses, was read the second time and ordered to lie on the table. mr. chipman, from the committee to whom was referred on the th march last, to inquire what amendments are necessary in the act to establish the judicial courts of the united states, reported a bill on the subject; which was read and ordered to the second reading. the senate took into consideration the report of the committee on the petition of thomas burling and others, inhabitants of the mississippi territory; and the report was adopted. tuesday, april . _judiciary--its better organization._ the senate took into consideration the report of the committee on the bill to amend the act to establish the judicial courts of the united states; the first clause of which is as follows: strike out the whole of the bill after the word "serve," in third line, and insert "in the courts of the united states, shall be designated by lot, or otherwise, in each state or district respectively, according to the mode of forming juries, to serve in the highest courts of law therein, now practised; so far as the same shall render such designation practicable by the courts and marshals of the united states." on motion to strike out all that follows the word "otherwise," in the fourth line of the report, for the purpose of inserting the following: "summoned or procured in each state respectively, according to the mode directed and prescribed by the laws of each state respectively, so far as such laws shall render the same practicable by the courts or marshals of the united states; and where the state mode cannot be used in the courts of the united states, the marshal attending such courts shall, every day the court sits, summon a sufficient number of persons to attend the court that day, that out of them may be impannelled sufficient juries for the trial of all causes (except cases punishable with death) depending in such courts; and if any person so summoned shall fail to attend the court accordingly, he shall be fined eight dollars, to the use of the united states:" a division of the motion was called for, and the question was taken on striking out, which passed in the negative--yeas , nays , as follows: yeas.--messrs. anderson, bloodworth, brown, cocke, franklin, langdon, marshall, mason, and nicholas. nays.--messrs. bingham, dayton, dexter, foster, goodhue, greene, gunn, hillhouse, howard, latimer, livermore, read, ross, schureman, tracy, and wells. and it was agreed, that the bill pass to the third reading as amended.[ ] wednesday, may . the vice president having, by letter, intimated his desire to be excused from further attendance, as it would probably be the last day of the session, the senate proceeded to the choice of a president _pro tempore_, as the constitution provides, and uriah tracy was duly elected. _mississippi slave act._ the bill entitled "an act to permit, in certain cases, the bringing of slaves into the mississippi territory," was read the third time. on the question to agree to the final passage thereof, it passed in the negative--yeas , nays , as follows: yeas.--messrs. anderson, cocke, marshall, pinckney, and read. nays.--messrs. baldwin, bingham, bloodworth, brown, dayton, foster, franklin, greene, hillhouse, laurance, livermore, mason, morris, and ross. a message from the house of representatives informed the senate that the house disagree to the amendment of the senate to the bill regulating the grants of land for the refugees from the british provinces of canada and nova scotia. the senate considered the resolution of the house of representatives on the amendment of the senate to the bill last mentioned. _resolved_, that they adhere to their amendment. mr. ross, from the committee on the bill making grants of lands to the inhabitants of vincennes, and illinois country, reported the bill without amendment, and it was agreed to postpone the bill to the next session of congress. _adjournment._ a message from the house of representatives informed the senate that they have appointed a committee on their part, with such as the senate may join, to wait on the president of the united states and notify him that, unless he hath any further communications to make to the two houses of congress, they are ready to adjourn; and they desire the appointment of a committee on the part of the senate. the senate agreed to the resolution of the house of representatives appointing a committee, jointly with such as the senate may appoint, to wait on the president of the united states, and notify him of the proposed adjournment of the two houses of congress; and it was ordered that messrs. bingham and wells be the committee on the part of the senate. mr. bingham reported, from the joint committee last mentioned, that the president of the united states had no further communication to make to congress at this time than his best wishes for their safe return to their respective places of abode. on motion that it be _resolved_, that the president of the united states be requested to instruct the proper law officer to commence and carry on a prosecution against william duane, editor of the newspaper called the aurora, for certain false, defamatory, scandalous, and malicious publications, in the said newspaper, on the th of february last past, tending to defame the senate of the united states, and to bring them into contempt and disrepute, and to excite against them the hatred of the good people of the united states: it passed in the affirmative--yeas , nays , as follows: yeas.--messrs. bingham, dayton, foster, greene, gunn, latimer, laurance, livermore, morris, read, ross, tracy, and wells. nays.--messrs. bloodworth, brown, cocke, franklin. _ordered_, that the secretary lay an attested copy of the foregoing resolution before the president of the united states. _resolved_, that the thanks of the senate of the united states be presented to the commissioners of the city and county of philadelphia, for the convenient and elegant accommodations furnished by them for the use of the senate, during the residence of the national government in the city; and that the president of the senate be requested to convey this resolution in a letter to the said commissioners. the president, agreeably to the joint resolution of the th instant, adjourned the senate, to meet again on the third monday of november next, as the law provides. sixth congress.--first session. proceedings and debates in the house of representatives. monday, december , . this being the constitutional day for the annual meeting of congress, the following members of the house of representatives appeared, produced their credentials, and took their seats, viz: _from new hampshire._--abiel foster, jonathan freeman, and william gordon. _from massachusetts._--bailey bartlett, phanuel bishop, dwight foster, harrison g. otis, silas lee, samuel lyman, john reed, samuel sewall, theodore sedgwick, william shepard, george thatcher, joseph b. varnum, peleg wadsworth, and lemuel williams. _from connecticut._--jonathan brace, samuel w. dana, john davenport, william edmond, chauncey goodrich, elizur goodrich, and roger griswold. _from rhode island._--john brown, and christopher g. champlin. _from vermont._--matthew lyon, and lewis r. morris. _from new york._--theodorus bailey, john bird, william cooper, lucas elmendorph, henry glenn, edward livingston, jonas platt, john thompson, and philip van cortlandt. _from new jersey._--john condit, franklin davenport, james h. imlay, aaron kitchell, and james linn. _from pennsylvania._--robert brown, andrew gregg, albert gallatin, john a. hanna, joseph heister, john wilkes kittera, michael leib, peter muhlenberg, john smilie, richard thomas, robert waln, and henry woods. _from maryland._--george baer, william craik, gabriel christie, george dent, joseph h. nicholson, samuel smith, and john chew thomas. _from virginia._--john dawson, thomas evans, david holmes, george jackson, john marshall, john nicholas, anthony new, leven powell, john randolph, abram trigg, and john trigg. _from north carolina._--willis alston, joseph dickson, archibald henderson, william h. hill, nathaniel macon, richard stanford, and david stone. _from south carolina._--robert goodloe harper, abraham nott, john rutledge, jr., and thomas sumter. _from georgia._--james jones, benjamin taliaferro. _from tennessee._--william charles cole claiborne. a quorum of the whole number of members being present, the house proceeded to the election of a speaker; when, on counting the ballots, the tellers reported that mr. sedgwick had votes; mr. macon, ; mr. dent, ; mr. rutledge, ; mr. sumter, . that the whole number of votes was , and the rules of the house requiring a majority of the members present to constitute a choice, neither of the above gentlemen were elected. the house then proceeded to a second trial; when mr. sedgwick had votes; mr. macon, ; mr. dent, ; mr. rutledge, . whereupon mr. sedgwick was declared duly elected, and conducted to the chair accordingly. mr. sedgwick, upon taking the chair, addressed the house in the following words: "gentlemen: although i am conscious of a deficiency of the talents which are desirable to discharge with usefulness and dignity the important duties of the high station to which i am raised, by the generous regard of the enlightened and virtuous representatives of my country, yet, reposing myself on the energy of their candid support, i will not shrink from the attempt. "accept, i pray you, gentlemen, my grateful acknowledgment of the honor you are pleased to confer; and, with it, an assurance, that no consideration shall seduce me to deviate, in the least degree, from a direct line of impartial integrity." a message was received from the senate, informing the house that, a sufficient number of members appearing to form a quorum, they had proceeded to the choice of a president _pro tempore_, when hon. samuel livermore was elected. the house proceeded to the choice of a clerk; when it appeared jonathan w. condy had votes, john beckley, . whereupon mr. condy was declared by the speaker to be duly elected. _ordered_, that a message be sent to the senate, to inform that body of the election of the hon. theodore sedgwick, as speaker of the house of representatives. on motion of mr. macon, the house proceeded to the choice of a sergeant-at-arms, doorkeeper, and assistant doorkeeper; when joseph wheaton, thomas claxton, and thomas dunn, were unanimously elected. the oath to support the constitution of the united states, as prescribed by the act, entitled "an act to regulate the time and manner of administering certain oaths," was administered by mr. rutledge, one of the representatives for the state of south carolina, to the speaker, and then the same oath or affirmation was administered by mr. speaker to each of the members present. william henry harrison having also appeared, as a representative for the territory of the united states north-west of the river ohio, the said oath was administered to him by mr. speaker. the same affirmation, together with the affirmation of office prescribed by the said recited act, were also administered by mr. speaker to the clerk. a message was received from the senate, informing the house, that they had passed a resolution, appointing a joint committee to wait on the president of the united states, and inform him that congress had met and were ready to receive any communications he might think proper to make; and, in case of concurrence, that messrs. read and bingham were appointed a committee on behalf of the senate. the house concurred in the resolution, and messrs. marshall, rutledge, and sewall, were appointed to wait on the president, in conjunction with the committee from the senate. the following letter was read by the speaker. welbeck-street, london, _september , _. sir: i beg leave, through you, to offer to the house of representatives of the united states, impressions of the two prints of the american revolution, which i have lately caused to be published.[ ] the importance of the events, and the illustrious characters of the two great men to whose memory they are particularly devoted, give to these works their best claim to your notice; and the patriotism of my countrymen, i trust, will give them a kinder reception than their intrinsic merit might entitle me to hope. with great respect, i have the honor to be, sir, your most obedient, humble servant, jno. trumbull. the speaker _of the house of reps. u. s._ _resolved_, that the rules and orders of proceeding established by the late house of representatives, shall be deemed and taken to be the rules and orders of proceeding to be observed in this house, until a revision or alteration of the same shall take place. _resolved_, that each member be furnished with three newspapers, printed in this city, during the session, at the expense of this house. mr. marshall, from the joint committee appointed to wait on the president of the united states, reported, that they had performed that service; and that the president had appointed to-morrow forenoon, o'clock, to meet both houses in the representatives' chamber. the house then adjourned, till to-morrow morning at eleven o'clock. tuesday, december . james a. bayard, from delaware, appeared produced his credentials, was qualified, and took his seat in the house. _president's speech._ _ordered_, that a message be sent to the senate to inform them that this house is now ready to attend them in receiving the communication from the president of the united states, agreeably to his notification to both houses yesterday. the senate attended and took seats in the house; when, both houses being assembled, the president of the united states came into the representatives' chamber, and addressed them as follows. (for the speech, see senate proceedings, _ante_.) the president of the united states then withdrew and the two houses separated. a copy of the speech being delivered by the president to the speaker, and read by the clerk, it was ordered, that it be committed to a committee of the whole house to-morrow. wednesday, december . mr. livingston said he conceived some notice ought to be taken of the letter received from mr. trumbull, and therefore moved that it be referred to a select committee. agreed to, and messrs. livingston, taliaferro, and hill, were appointed. _the president's speech._ the house went into a committee of the whole on the president's speech, mr. rutledge in the chair. the speech having been read, mr. marshall moved the following resolution, which was agreed to by the committee, viz: _resolved_, that it is the opinion of this committee, that a respectful address ought to be presented by the house of representatives to the president of the united states, in answer to his speech to both houses of congress, on the opening of the present session, containing assurances that this house will duly attend to the important objects recommended by him to their consideration. the committee rose, and the resolution having been agreed to by the house, messrs. marshall, rutledge, sewall, livingston, and nicholas, were appointed a committee to draft the address. friday, december . mr. marshall, from the committee appointed to draft an address in answer to the speech of the president of the united states, at the commencement of the present session, reported the same, which was committed to a committee of the whole on monday next, and ordered to be printed. mr. livingston, from the committee to whom was referred the letter of mr. trumbull, reported the following resolution, which was adopted by the house: "_resolved_, that the two elegant prints offered by mr. trumbull, be accepted; and that the speaker be instructed to write an answer, expressive of the pleasure with which this house has observed his genius and talents exerted in the patriotic task of celebrating the events which led to his country's independence, and dedicated to the memory of those heroes who fell in its defence." monday, december . josiah parker and robert page, from virginia, appeared, produced their credentials, were qualified, and took their seats. _address to the president._ the house resolved itself into a committee of the whole, on the address to be presented to the president of the united states in answer to his speech to both houses, at the commencement of the present session. mr. gregg moved, that the words distinguished by italics, in the third and fourth lines of the second paragraph of the address, be struck out, and that the words "act in" be inserted in their stead; which produced a short debate, and was finally negatived. the committee then rose, and the address was reported without amendment; and was agreed to by the house, in the words following, viz: _to the president of the united states:_ sir: while the house of representatives contemplate the flattering prospects of abundance from the labors of the people, by land and by sea, the prosperity of our extended commerce, notwithstanding the interruptions occasioned by the belligerent state of a great part of the world, the return of health, industry and trade, to those cities which have lately been afflicted with disease, and the various and inestimable advantages, civil and religious, which, secured under our happy frame of government, are continued to us unimpaired, we cannot fail to offer up to the benevolent deity our sincere thanks for these the merciful dispensations of his protecting providence. that any portion of the people of america should permit themselves, amid such numerous blessings, to _be seduced by the arts and misrepresentations of designing men into an_ open resistance of a law of the united states, cannot be heard without deep and serious regret. under a constitution where the public burdens can only be imposed by the people themselves, for their own benefit, and to promote their own objects, a hope might well have been indulged that the general interest would have been too well understood, and the general welfare too highly prized, to have produced in any of our citizens a disposition to hazard so much felicity, by the criminal effort of a part, to oppose with lawless violence the will of the whole. while we lament that depravity which could produce a defiance of the civil authority, and render indispensable the aid of the military force of the nation, real consolation is to be derived from the promptness and fidelity with which that aid was afforded. that zealous and active co-operation with the judicial power, of the volunteers and militia called into service, which has restored order and submission to the laws, is a pleasing evidence of the attachment of out fellow-citizens to their own free government, and of the truly patriotic alacrity with which they will support it. to give due effect to the civil administration of government, and to ensure a just execution of the laws, are objects of such real magnitude as to secure proper attention to your recommendation of a revision and amendment of the judiciary system. highly approving, as we do, the pacific and humane policy which has been invariably professed and sincerely pursued by the executive authority of the united states, a policy which our best interests enjoined and of which honor has permitted the observance, we consider as the most unequivocal proof of your inflexible perseverance in the same well chosen system, your preparation to meet the first indications on the part of the french republic, of a disposition to accommodate the existing differences between the two countries, by a nomination of ministers on certain conditions, which the honor of our country unquestionably dictated, and which its moderation had certainly given it a right to prescribe. when the assurances thus required of the french government, previous to the departure of our envoys, had been given through their minister of foreign relations, the direction that they should proceed on their mission, was, on your part, a completion of the measure, and manifests the sincerity with which it was commenced. we offer up our fervent prayers to the supreme ruler of the universe for the success of their embassy, and that it may be productive of peace and happiness to our common country. the uniform tenor of your conduct, through a life useful to your fellow-citizens and honorable to yourself, gives a sure pledge of the sincerity with which the avowed objects of the negotiation will be pursued on your part, and we earnestly pray that similar dispositions may be displayed on the part of france. the differences which unfortunately subsist between the two nations, cannot fail, in that event, to be happily terminated. to produce this end, to all so desirable, firmness, moderation, and union at home, constitute, we are persuaded, the surest means. the character of the gentlemen you have deputed, and still more, the character of the government which deputes them, are safe pledges to their country, that nothing incompatible with its honor or interest, nothing inconsistent with our obligations of good faith or friendship to any other nation, will be stipulated. we learn, with pleasure, that our citizens, with their property, trading to those ports of st. domingo with which commercial intercourse has been renewed, have been duly respected, and that privateering from those ports has ceased. with you, we sincerely regret that the execution of the sixth article of the treaty of amity, commerce, and navigation, with great britain, an article produced by a mutual spirit of amity and justice, should have been unavoidably interrupted. we doubt not the same spirit of amity, and the same sense of justice in which it originated, will lead to satisfactory explanations; and we hear with approbation that our minister at london will be immediately instructed to obtain them. while the engagements which america has contracted by her treaty with great britain, ought to be fulfilled with that scrupulous punctuality and good faith to which our government has ever so tenaciously adhered, yet no motive exists to induce, and every principle forbids us to adopt a construction which might extend them beyond the instrument by which they are created. we cherish the hope that the government of great britain will disclaim such extension, and by cordially uniting with that of the united states for the removal of all difficulties, will soon enable the boards appointed under the sixth and seventh articles of our treaty with that nation, to proceed, and bring the business committed to them respectively to a satisfactory conclusion. the buildings for the accommodation of congress, and of the president, and for the public offices of the government at its permanent seat, being in such a state as to admit of a removal to that district by the time prescribed by the act of congress, no obstacle, it is presumed, will exist to a compliance with the law. with you, sir, we deem the present period critical and momentous. the important changes which are occurring, the new and great events which are every hour preparing in the political world, the spirit of war which is prevalent in almost every nation with whose affairs the interests of the united states have any connection, demonstrate how unsafe and precarious would be our situation, should we neglect the means of maintaining our just rights. respecting, as we have ever done, the rights of others, america estimates too correctly the value of her own, and has received evidence too complete that they are only to be preserved by her own vigilance, ever to permit herself to be seduced by a love of ease, or by other considerations, into that deadly disregard of the means of self-defence, which could only result from a carelessness as criminal as it would be fatal concerning the future destinies of our growing republic. the result of the mission to france is, indeed, sir, uncertain. it depends not on america alone. the most pacific temper will not always ensure peace. we should therefore exhibit a system of conduct as indiscreet as it would be new in the history of the world, if we considered the negotiation happily terminated because we have attempted to commence it, and peace restored because we wish its restoration. but, sir, however this mission may terminate, a steady perseverance in a system of national defence, commensurate with our resources and the situation of our country, is an obvious dictate of duty. experience, the parent of wisdom, and the great instructor of nations, has established the truth of your position, that, remotely as we are placed from the belligerent nations, and desirous as we are, by doing justice to all, to avoid offence to any, yet nothing short of the power of repelling aggressions will secure to our country a rational prospect of escaping the calamities of war or national degradation. in the progress of the session, we shall take into our serious consideration the various and important matters recommended to our attention. a life devoted to the service of your country, talents and integrity which have so justly acquired and so long retained the confidence and affection of your fellow-citizens, attest the sincerity of your declaration, that it is your anxious desire so to execute the trust reposed in you as to render the people of the united states prosperous and happy. _resolved_, that the speaker, attended by the house, do present the said address. messrs. marshall, rutledge, and sewall, were appointed a committee to wait on the president, to know when and where he would be ready to receive the address; and having performed that service, reported, that the president had appointed to-morrow, two o'clock, for that purpose, at his own house. _delegate from north-west territory._ _ordered_, that the credentials of william henry harrison, who has appeared as a delegate from the territory of the united states north-west of the river ohio, be referred to the committee of elections; and that they be directed to report whether the territory is entitled to elect a delegate who may have a seat in this house. tuesday, december . matthew clay, from virginia, appeared, produced his credentials, was qualified, and took his seat in the house. _address to the president._ the hour having arrived which the president had appointed, mr. speaker, attended by the members present, proceeded to the president's house, to present him their address in answer to his speech at the opening of the present session; and having returned, the president's reply thereto was read, as follows: _gentlemen of the house of representatives_: this very respectful address from the representatives of the people of the united states at their first assembly, after a fresh election, under the strong impression of the public opinion and national sense, at this interesting and singular crisis of our public affairs, has excited my sensibility, and receives my sincere and grateful acknowledgments. as long as we can maintain, with harmony and affection, the honor of our country, consistently with its peace, externally and internally, while that is attainable, or in war, when that becomes necessary, assert its real independence and sovereignty, and support the constitutional energies and dignity of its government, we may be perfectly sure, under the smiles of divine providence, that we shall effectually promote and extend our national interests and happiness. the applause of the senate and house of representatives, so justly bestowed upon the volunteers and militia, for their zealous and active co-operation with the judicial power, which has restored order and submission to the laws, as it comes with peculiar weight and propriety from the legislature, cannot fail to have an extensive and permanent effect, for the support of government, upon all those ingenuous minds who receive delight from the approving and animating voice of their country. john adams. united states, _december _. and then the house adjourned till to-morrow morning, o'clock. wednesday, december . henry lee, from virginia, appeared, produced his credentials, was qualified, and took his seat in the house. _the direct tax law._ mr. harper said, that a difficulty had arisen in the state of pennsylvania, relative to the execution of the law "for the valuation of lands and dwelling-houses, and for the enumeration of slaves, within the united states," which the commissioners for that state did not conceive themselves competent to decide upon; that the commissioners had referred the case to the secretary of the treasury, whose opinion it was, that they were possessed of sufficient power to obviate the difficulties complained of; but the commissioners, on again taking the subject into consideration, were still of opinion they were unable to act without legislative aid, and therefore had made application to the committee of ways and means, who, mr. h. said, had directed him to move for leave to bring in a bill, further to amend the act entitled "an act to provide for the valuation of lands and dwelling-houses, and for the enumeration of slaves within the united states," which was granted. _franking privilege to w. h. harrison._ mr. harper laid the following resolution on the table. _resolved_, that a committee be appointed to prepare and bring in a bill, extending the privilege of franking to w. h. harrison, a delegate from the territory of the united states north-west of the river ohio, and making provision for his compensation. mr. h. said, that according to law, that gentleman had the right only of speaking and giving his opinion upon any question before the house, but was not entitled to a vote, or any other privilege; but as the privileges of a member had been extended on a former occasion to a delegate from the south-western territory, he had no doubt they would be granted on the present. monday, december . thomas hartley, from pennsylvania, and joseph eggleston, from virginia, appeared, produced their credentials, were qualified, and took their seats in the house. wednesday, december . _death of general washington._ mr. marshall, in a voice that bespoke the anguish of his mind, and a countenance expressive of the deepest regret, rose, and delivered himself as follows: mr. speaker: information has just been received, that our illustrious fellow-citizen, the commander-in-chief of the american army, and the late president of the united states, is no more! though this distressing intelligence is not certain, there is too much reason to believe its truth. after receiving information of this national calamity, so heavy and so afflicting, the house of representatives can be but ill fitted for public business. i move you, therefore, they adjourn. the motion was unanimously agreed to; and then the house adjourned till to-morrow morning, o'clock. thursday, december . samuel goode, from virginia, appeared, produced his credentials, was qualified, and took his seat in the house. _death of general washington._ mr. marshall addressed the chair as follows: mr. speaker: the melancholy event which was yesterday announced with doubt, has been rendered but too certain. our washington is no more! the hero, the sage, and the patriot of america--the man on whom in times of danger every eye was turned and all hopes were placed--lives now only in his own great actions, and in the hearts of an affectionate and afflicted people. if, sir, it had even not been usual openly to testify respect for the memory of those whom heaven had selected as its instruments for dispensing good to men, yet such has been the uncommon worth, and such the extraordinary incidents which have marked the life of him whose loss we all deplore, that the whole american nation, impelled by the same feelings, would call with one voice for a public manifestation of that sorrow which is so deep and so universal. more than any other individual, and as much as to any one individual was possible, has he contributed to found this our wide-spreading empire, and to give to the western world its independence and its freedom. having effected the great object for which he was placed at the head of our armies, we have seen him converting the sword into the ploughshare, and voluntarily sinking the soldier in the citizen. when the debility of our federal system had become manifest, and the bonds which connected the parts of this vast continent were dissolving, we have seen him the chief of those patriots who formed for us a constitution, which, by preserving the union, will, i trust, substantiate and perpetuate those blessings our revolution had promised to bestow. in obedience to the general voice of his country, calling on him to preside over a great people, we have seen him once more quit the retirement he loved, and in a season more stormy and tempestuous than war itself, with calm and wise determination, pursue the true interests of the nation, and contribute, more than any other could contribute, to the establishment of that system of policy which will, i trust, yet preserve our peace, our honor, and our independence. having been twice unanimously chosen the chief magistrate of a free people, we see him at a time when his re-election, with the universal suffrage, could not have been doubted, affording to the world a rare instance of moderation, by withdrawing from his high station to the peaceful walks of private life. however the public confidence may change, and the public affections fluctuate with respect to others, yet with respect to him they have in war and in peace, in public and in private life, been as steady as his own firm mind, and as constant as his own exalted virtues. let us then, mr. speaker, pay the last tribute of respect and affection to our departed friend--let the grand council of the nation display those sentiments which the nation feels. for this purpose i hold in my hand some resolutions, which i will take the liberty to offer to the house. mr. marshall having handed them in at the table, they were read, and unanimously agreed to by the house, in the words following, to wit: the house of representatives of the united states, having received intelligence of the death of their highly valued fellow-citizen, george washington, general of the armies of the united states, and sharing the universal grief this distressing event must produce, _unanimously resolve_: . that this house will wait on the president of the united states, in condolence of this national calamity. . that the speaker's chair be shrouded with black, and that the members and officers of the house wear mourning, during the session. . that a joint committee of both houses be appointed to report measures suitable to the occasion, and expressive of the profound sorrow with which congress is penetrated on the loss of a citizen, first in war, first in peace, and first in the hearts of his countrymen. . that when this house adjourn, it will adjourn until monday next. _ordered_, that mr. marshall and mr. smith be appointed a committee to wait on the president of the united states, to know when and where he will receive this house for the purpose expressed in the first resolution. _ordered_, that mr. marshall, mr. craik, mr. henry lee, mr. eggleston, mr. smith, mr. stone, mr. rutledge, mr. abiel foster, mr. muhlenberg, mr. van cortlandt, mr. dwight foster, mr. franklin davenport, mr. claiborne, mr. morris, mr. john brown, and mr. taliaferro, be a committee, jointly with such committee as may be appointed on the part of the senate, for the purpose expressed in the third resolution. _ordered_, that the clerk of this house do acquaint the senate therewith. a message was received from the president of the united states, which, together with the letter accompanying the same, was read and referred to the committee last appointed, and is as follows: _gentlemen of the senate, and gentlemen of the house of representatives_: the letter herewith transmitted, will inform you that it has pleased divine providence to remove from this life our excellent fellow-citizen, george washington, by the purity of his character, and a long series of services to his country, rendered illustrious through the world. it remains for an affectionate and grateful people, in whose hearts he can never die, to pay suitable honor to his memory. john adams. united states, _dec. , _. "mount vernon, _dec. , _. "sir: it is with inexpressible grief that i have to announce to you the death of the great and good general washington. he died last evening, between ten and eleven o'clock, after a short illness of about twenty hours. his disorder was an inflammatory sore throat, which proceeded from a cold, of which he made but little complaint on friday. on saturday morning, about three o'clock, he became ill. doctor craik attended him in the morning, and doctor dick, of alexandria, and doctor brown, of port tobacco, were soon after called in. every medical assistance was offered, but without the desired effect. his last scene corresponded with the whole tenor of his life; not a groan, nor a complaint, escaped him in extreme distress. with perfect resignation, and in full possession of his reason, he closed his well spent life. "i have the honor to be, sir, your most obedient and very humble servant, "tobias lear. "the president of the united states." mr. marshall, from the committee appointed to wait on the president of the united states, to know when and where it will be convenient for him to receive this house in condolence of the national calamity, reported that the committee had, according to order, performed that service, and that the president signified to them it would be convenient for him to receive this house at one o'clock this afternoon, at his own house. a message from the senate informed the house that the senate have agreed to the resolution passed by the house of representatives for the appointment of a joint committee of both houses to report measures suitable to the occasion, and expressive of the profound sorrow with which congress is penetrated on the loss of a citizen, first in war, first in peace, and first in the hearts of his countrymen; and have appointed mr. dayton, mr. bingham, mr. dexter, mr. gunn, mr. laurance, and mr. tracy, a committee on their part. the speaker, attended by the house, then withdraw to the house of the president of the united states, when mr. speaker addressed the president as follows: sir: the house of representatives, penetrated with a sense of the irreparable loss sustained by the nation in the death of that great and good man, the illustrious and beloved washington, wait on you, sir, to express their condolence on this melancholy and distressing event. to which the president replied as follows: _gentlemen of the house of representatives_: i receive, with great respect and affection, the condolence of the house of representatives, on the melancholy and affecting event, in the death of the most illustrious and beloved personage which this country ever produced. i sympathize with you, with the nation, and with good men through the world, in this irreparable loss sustained by us all. john adams. united states, _dec. , _. monday, december . thomas t. davis, from kentucky; robert williams, from north carolina; and john dennis, from maryland; appeared, produced their credentials, were qualified, and took their seats in the house. _respect to the memory of general washington._ mr. marshall, from the joint committee appointed to report what testimony of respect ought to be paid to the memory of the man first in war, first in peace, and first in the hearts of his countrymen, made a report in part, which he delivered in at the table, where it was twice read, and unanimously agreed to, in the words following, to wit: _resolved, by the senate and house of representatives of the united states of america in congress assembled_, that a marble monument be erected by the united states, in the capitol, in the city of washington, and that the family of general washington be requested to permit his body to be deposited under it; and that the monument be so designed as to commemorate the great events of his military and political life. _and be it further resolved_, that there be a funeral procession from congress hall to the german lutheran church, in honor of the memory of general george washington, on thursday, the th instant, and that an oration be prepared at the request of congress, to be delivered before both houses on that day, and that the president of the senate and speaker of the house of representatives be desired to request one of the members of congress to prepare and deliver the same. _and be it further resolved_, that it be recommended to the people of the united states to wear crape on the left arm, as mourning for thirty days. _and be it further resolved_, that the president of the united states be requested to direct a copy of these resolutions to be transmitted to mrs. washington, assuring her of the profound respect congress will ever bear to her person and character; of their condolence on the late afflicting dispensation of providence; and entreating her assent to the interment of the remains of general george washington, in the manner expressed in the first resolution. _and be it further resolved_, that the president of the united states be requested to issue a proclamation, notifying to the people throughout the united states the recommendation contained in the third resolution. _ordered_, that the clerk of this house do carry the said resolutions to the senate, and desire their concurrence. previous to the question being put upon the first resolution, mr. h. lee of virginia, rose, and addressed the chair as follows: mr. speaker: in executing the task assigned to the committee, it will be observed much remains to be done; so far as they have gone, and as far as they may go, one hope is cherished, that whatever is done, will be unanimously adopted. this will be most pleasing to our constituents, and most honorable to the character we all honor. out of a wish to execute in the best manner the direction of the house, a difference of opinion will naturally prevail. this difference of opinion, however commendable, upon ascertaining the mode of public mourning, ought to be suppressed when we come to act; for unanimity then is, as i before stated, most to be wished for, whether the feelings of our constituents, or our intentions, on the celebrity which all desire to give to the high occasion, govern. a message was received from the senate, announcing their concurrence in the report of the joint committee made this day; and then the house adjourned till to-morrow morning. tuesday, december . _respect to the memory of general washington._ the speaker informed the house that, conformably to the resolution of congress, the president of the senate and the speaker of the house of representatives had requested major general henry lee, one of the representatives from the state of virginia, to prepare and deliver a funeral oration before both houses, on thursday, the twenty-sixth instant, in honor of the memory of george washington, late general of the armies of the united states; and that mr. lee had been pleased to accept of the appointment. and, on motion, the house adjourned. thursday, december . this being the day appointed by the resolution of congress for the funeral procession in honor of the memory of george washington, late general of the armies of the united states, the house proceeded to the german lutheran church, where they attended the funeral oration, prepared and delivered on the occasion by major general lee, one of the members of this house for the state of virginia. the house, having returned, adjourned until to-morrow morning. friday, december . john fowler, from kentucky, appeared, produced his credentials, was qualified, and took his seat in the house. _respect to the memory of general washington._ on a motion made and seconded that the house do come to the following resolution, to wit: "the house of representatives of the united states, highly gratified with the manner in which mr. lee has performed the service assigned to him under the resolution desiring the president of the senate and speaker of the house of representatives to request one of the members of congress to prepare and deliver a funeral oration on the death of george washington; and desirous of communicating to their fellow-citizens, through the medium of the press those sentiments of respect for the character, of gratitude for the services, and of grief for the death of that illustrious personage, which, felt by all, have on this melancholy occasion been so well expressed: "_resolved_, that the speaker present the thanks of this house to mr. lee, for the oration delivered by him to both houses of congress on thursday, the twenty-sixth instant; and request that he will permit a copy thereof to be taken for publication:" the question was taken that the house do agree to the same, and unanimously resolved in the affirmative. monday, december . _respect to the memory of general washington._ the speaker informed the house that, in pursuance of the resolution of friday last, he had addressed to major general henry lee, one of the members for the state of virginia, the following letter: "philadelphia, _dec. , _. "dear sir: the enclosed resolutions, which unanimously passed the house of representatives this day, will make known to you how highly they have been gratified with the manner in which you have performed the service assigned to you, in preparing and delivering a funeral oration on the death of general washington. that our constituents may participate in the gratification we have received, from your having so well expressed those sentiments of respect for the character, of gratitude for the services, and of grief for the death of that illustrious personage, i flatter myself you will not hesitate to comply with the request of the house, by furnishing a copy of your oration, to be taken for publication. "allow me, while performing this pleasing task of official duty in communicating an act of the representatives of the people, so just to you and so honorable to themselves, to embrace the opportunity to declare that i am, personally, with great esteem and sincere regard, dear sir, your friend and obedient servant, "theodore sedgwick. "the hon. maj. gen. lee." to which mr. lee had replied as follows: "franklin court, _dec. , _. "dear sir: i owe to the goodness of the house of representatives the honor which their resolutions confer on my humble efforts to execute their wish. "i can never disobey their will, and therefore will furnish a copy of the oration delivered on the late afflicting occasion, much as i had flattered myself with a different disposition of it. "sincerely reciprocating the personal considerations with which you honor me, i am, very respectfully, sir, your friend and obedient servant, "henry lee. "the speaker _of the house of reps_." mr. marshall, from the joint committee appointed to consider and report what measures ought to be adopted in honor of the memory of general washington, made another report in part, which was unanimously agreed to by the house, in the words following, to wit: _resolved, by the senate and house of representatives of the united states in congress assembled_, that it be recommended to the people of the united states to assemble on the twenty-second day of february next, in such numbers and manner as may be convenient, publicly to testify their grief for the death of general george washington, by suitable eulogies, orations, and discourses, or by public prayers. _and be it further resolved_, that the president of the united states be requested to recommend the same, by a proclamation for that purpose. _ordered_, that the clerk of this house do carry the said resolutions to the senate, and desire their concurrence. thursday, january , . richard dobbs spaight, from north carolina, appeared, produced his credentials, was qualified, and took his seat. _petition of free blacks._ mr. waln presented a petition of absalom jones and others, free men of color, of the city and county of philadelphia, praying for a revision of the laws of the united states relative to the slave trade; of the act relative to fugitives from justice; and for the adoption of such measures as shall in due course emancipate the whole of their brethren from their present situation; which he moved to have referred to the committee appointed to inquire whether any and what alterations ought to be made in the existing law prohibiting the slave trade from the united states to any foreign place or country. the petitioners, after mentioning their sense of the bounties of providence in their freedom, and the happiness they felt under such a form of government, represent that they cannot but be impressed with the hardships under which numbers of their color labored, who they conceived equal objects of representation and attention with themselves or others under the constitution. that the solemn compact, the constitution, was violated by the trade of kidnapping, carried on by the people of some of the southern states on the shores of maryland and delaware, by which numbers were hurried into holes and cellars, torn from their families and transported to georgia, and there inhumanly exposed to sale, which was degrading to the dignified nature of man. that by these and other measures injurious to the human species, there were , blacks now in slavery in these states. they stated their application to congress to be, not for the immediate emancipation of the whole, knowing that their degraded state and want of education would render that measure improper, but they ask an amelioration of their hard situation. they prayed that the act called the fugitive bill, which was very severe on that race of people, might be considered; also that the african slave trade might be put a stop to. mr. waln moved its reference to the committee appointed to prohibit carrying on the slave trade to any foreign place or country. mr. rutledge thought any reference at all very improper; he hoped it would be laid on the table, and with a view never to be called up hereafter. petitions of this sort had repeatedly come before the house, only with the difference of transfer of hands. when the congress sat at new york, they spent much time and attention on the subject, but no sooner had it been decided that nothing could be done, than the same scenes were acted over again by repeatedly petitioning. those gentlemen who used to come forward, to be sure, had not avowedly come forward again, but had now put it into the hands of the black _gentlemen_. they now tell the house these people are in slavery--i thank god they are! if they were not, dreadful would be the consequences. they say they are not represented. to be sure a great number of them are not. farther, they say they are sent to the southern states. who can prevent that? persons possessing slaves have a right to send them there if they choose. they tell you that they are brought from africa. this matter is in a train to be prevented, the subject being now in the hands of a committee. already had too much of this new-fangled french philosophy of liberty and equality found its way and was too apparent among these _gentlemen_ in the southern states, by which nothing would do but their liberty. this appeared to be the intention of the petition, but he supposed the people of the eastern states had felt as much in having them among them as those of the southern states in losing them, and therefore he believed gentlemen from those parts would vote with them. however, he considered this subject very improper and unconstitutional to discuss, and, from the ill effects it might produce, should say no more. mr. waln thought the gentleman mistaken as to the nature of the petition; it related but two grievances: one was the operation of the fugitive act, by which free men were carried and sold into slavery, and the other was the slave trade. he did not wish to enter into general principles, because he conceived it as improper as any gentleman, but he could see no good reason why the petition might not be committed; every petition presented to the house ought to receive that attention, and a rejection of the present without examination could have no good effect. mr. smilie was much surprised at the opposition of the gentleman from south carolina to the reference. to be sure a great part of what these people asked, as far as he was acquainted with it, was out of their power to grant, but there was much of the petition which was within the power of the house. so far as they had power, he considered it the duty of the house to attend and grant relief. he could wish to drop some ideas on the situation of those people, but felt a contrary impulse from motives of prudence. however, he must consider them as a part of the human species, equally capable of suffering and enjoying with others, and equally objects of attention, and therefore they had a claim to be heard. mr. otis hoped the petition would not be committed; he had never seen a petition presented under a more dangerous and unpleasant aspect. it appeared to be subscribed by a number of individuals who were incapable of writing their names, or of reading the petition, and, _a fortiori_, of digesting the principles of it. it therefore was a petition of certain men made out by other men, who ought to have come forward themselves, but had forborne. to encourage a measure of the kind would have an irritating tendency, and must be mischievous to america very soon. it would teach them the art of assembling together, debating, and the like, and would soon, if encouraged, extend from one end of the union to the other. a great part of the petition was improper, and the other part entirely unnecessary. no particular object or evils were pointed out in the fugitive law, but the truth was, they wanted a repeal of the law. although, he thanked god he had no slaves, nor ever wished to possess any, yet he thought the subject ought not to be meddled with by the general government, and if any grievances existed, they were properly and only objects of legislation in the several states. it was the duty, and he thought the interest of the states, while they were kept in servitude, to ameliorate their situation as much as consisted with security. he thought those who did not possess that species of property had better leave the regulation of it to those who were cursed with it. however, it was unjust to intermeddle with it to the injury of the possessors. mr. h. lee observed that gentlemen were sent to that house to preserve the rights of the people and the rights of property. that property which the people of the southern states possess consisted of slaves, and therefore congress had no authority but to protect it, and not take measures to deprive the citizens of it. he said he held himself not second to any gentleman in a genuine attachment to the rights of humanity, but he could not believe that great ends would be answered by the reference of the petition, but much evil might accrue. it contained sentiments which he thought it would be highly improper so far to encourage. one object prayed for in this petition was now in the hands of a committee; let that committee report respecting the guinea trade, let it be entirely obliterated; to that he would agree with all his heart, but he hoped the house would never intermeddle with the property of any of the citizens. instead of voting with the worthy member who wished it to lie on the table, he would have it returned to the gentleman who presented it, as the only effectual means of checking an injurious practice. mr. rutledge, in addition to his former arguments, observed, that so improper was it to consider this subject that some of the states would never have adopted the federal form of government if it had not been secured to them that congress would never legislate on the subject of slavery. inasmuch, therefore, as it might rouse the jealousy and fears of those states, the least attention paid to it might do mischief. mr. thatcher said that gentlemen generally set out wrong, on this subject, and leave off about half right; they debated till they were almost tired, and then the petition was not to be committed. if congress had not power to legislate on the african trade, then why did they say it was with a committee? if they had power, where was the impropriety of referring, at least that part which could be considered? would any gentleman say that it was policy not to legislate about , enemies in the very body of the united states? while they were slaves they were enemies. he declared a greater evil than the very principle could not exist; it was a cancer of immense magnitude, that would some time destroy the body politic, except a proper legislation should prevent the evil. it must come before the house sooner or later. then why postpone it? it was true the eastern states were now suffering from the streams which issued from this great and dangerous fountain, but the evil ought to be stopped, ere it become too strong. mr. brown, of rhode island, said he was in hopes that every member belonging to the northern states would have seen by this time the impropriety of encouraging slaves to come from the southern states to reside as vagabonds and thieves among them, and have been tired of the bad policy. no subject surely was so likely to cause a division of the states as that respecting slaves. he did not hold a slave in the world, he said, but he was as much for supporting the rights and property of those who did, as though he was a slave owner. he considered this as much personal property as a farm or a ship, which was incontestably so. he went into a view of the federal compact, to argue the impropriety of legislating on the subject. this petition, he said, did not come from the blacks, but from a combination of people who had troubled congress for many years past, and he feared never would cease. he did not fear the power of the , enemies that the gentleman had pointed out, since there were five millions to withstand them: they could at any time subdue them. he begged that the gentleman, who put the petition on the table, might be desired to take it back again. he was sorry to see the commitment supported by two such worthy members of the house, both good federalists. [a laugh.] mr. waln contended, that at least the house had the power of legislating on the state of free blacks as well as other people, and on the slave trade, much of which was still carrying on from rhode island, boston and pennsylvania. this ought to be looked into. he denied that any idea had ever entered his mind on presenting the petition either to debate on the subject, or to will an emancipation of the slaves. gentlemen from the southern states appeared to lament there were so many among them, but their conduct was very contrary to their declaration. mr. hill thought if any evil existed under any law now in force, a committee ought to be appointed, to examine into and correct it: but he hoped the petition would not be committed. it was to be lamented that this kind of property did exist; but it did exist, and was sanctioned by the constitution. that being the case, the house ought to set their faces against any innovations on it, either directly or indirectly. mr. dennis rose, he said, principally because he conceived the petition implicated the justice of the states of maryland and delaware, respecting the abominable practice of kidnapping. in justice to the state he represented, he must say that none of this evil was attributable to that state, because they had enacted extremely penal laws to stop it. he wished the petition to lie on the table, because the objects of it appeared to be extremely multifarious, and he believed but few members knew its contents, from the different opinions they had advanced. he wished them to have an opportunity of examining it. mr. randolph hoped that the conduct of the house would be so decided as to deter the petitioners, or any persons acting for them, from ever presenting one of a similar nature hereafter. the effects must be extremely injurious. he did wish that the conduct of the house would have been so indignant as to have passed it over without discussion. he should not, therefore, say any thing that would tend to encourage that discussion. the constitution had put it out of the power of the house to do any thing in it, and therefore he hoped the motion for a reference would be lost by a decided majority, and this be the last time the business of the house would be entered upon, and the interest and feelings of the southern states be put in jeopardy, by similar applications. mr. christie said the gentleman was mistaken, if he thought it would be the last time, for a certain society had thought it their duty to present petitions of this nature to congress every year since he was acquainted with it; but he hoped this, which came from that source, but through other hands, would have the fate of all the rest, and go under the table instead of upon it. as to the fugitive law, he would wish it to be taken up, and if no other member moved it, he should; but not for the purpose of repeal or weakening, but to make it stronger. there was now a fine laid upon any person who should harbor a black, knowing him or her to be a slave; he wished the provision should be that the persons harboring should know that he or she was not a slave. he mentioned the great desire of his state to prevent kidnapping, for which their laws were very severe. mr. harper had hoped that the house so well understood this subject, as to the people who instigated the petitioners to come forward, who well knew that nothing could be done by congress, as to decide on it instantly. this was the act of a religious body of people whose fanaticism leads them to think it a bounden duty to come to the house every year, though they now come in a different name. by this measure they had discharged their duty; all that now remained was for the house to discharge theirs. he hoped, from the present time, they should merely let the petition be read and pass it over in silence--for he expected that society would continue presenting petitions. the obvious tendency of agitating this question would only be to create discontent in a class of people whom it was out of the power of the legislature to change the situation of. he called upon gentlemen to say whether a temper of revolt was not more perceptible in that quarter? it was; and what was the cause of it but that they were not let alone by those people; but if others would disturb them, he hoped at least that house would cease to do it. mr. dana said if the petition before the house contained nothing but a farago of the french metaphysics of liberty and equality, he should think that it was likely to produce some of the dreadful scenes of st. domingo. or if he believed it was only the effects of a religious fanaticism in a set of men who thought they were doing their duty, though he thought the subject quite out of the power of congress, he might be disposed to think it quite wrong. but when he perceived a petition, addressed in language which was very decent, and which expressly declared that the petitioners did not wish the house to do what was inconsistent with the constitution, but only asked an amelioration of the severities under which people of their color labored, he thought it ought to be received and committed. he did not think the gentleman who presented it ought to withdraw it, nor was he the least culpable, but executed a duty he conceived him bound to. mr. jones said the petition threw so much aspersion upon the state he represented (georgia) that he must think it his duty to rise. why was that state to be selected out from all others? however, he should follow the petition in its parts, in order to show that the petitioners actually had asked what it was not in the power of the house to legislate upon--emancipation. it was said to merely affect the slave trade. first, the petitioners contemplated that those people (the slaves) ought to be represented, "with _us_ and the rest of the citizens of the united states." then they speak of the federal compact, in which they consider those people as interested in common with others, under these words: "we, the people of the united states of america," &c. i would ask gentlemen whether, with all their philanthropy, they would wish to see those people sitting by their sides deliberating in the councils of the nation? he presumed not. they go on farther and say, "we do not ask for the immediate emancipation of all, but we ask you to prepare the way for the oppressed to go free, that every yoke might be broken, thus keeping up the principle to do unto others as you would they should do unto you." the words need only be read to convince every man what is the tendency of their request. the gentleman farther says that , men are in bondage. i ask him how he would remedy this evil as he calls it? but i do not think it is any evil; would he have these people turned out in the united states to ravage, murder, and commit every species of crime? i believe it might have been happy for the united states if these people had never been introduced amongst us, but i do believe that they have been immensely benefited by coming amongst us. it was the british government that transmitted them down to us when in a colonized state; but being here, and being the property of individuals, after obtaining our common liberty, and forming our federal compact, property and safety were guaranteed to every individual and state in the confederation. how then can this house meddle with that part of our property? the general government has no power over it. with respect to that part of the petition which said that these people were crowded into cellars and transported to georgia, mr. j. informed the house that the importation to that state by sea had been prohibited; none had come there by sea for many years, and offenders against that law were fined £ sterling for each individual thus introduced. he hoped the petition would be treated with the contempt it merited, and thrown under the table. mr. rutledge rose to move that the question might be decided by _yeas_ and _nays_. it was a practice he generally was against, and scarcely ever moved, but he considered this of importance sufficient to demand it. it was a question in which the interests of a great number of people in this country were involved. he had no doubt it would be lost by a very great majority, and he thought it would have a good effect to be recorded by how vast a majority it would be lost. he thought it would be some consolation to his constituents, when he returned home, to say how few of the house of representatives were the supporters of this dangerous petition. mr. waln said if he had known that this petition would have caused so much alarm, he certainly should have desired the petitioners not to present it; but if they had still thought it necessary and been desirous of it, he should, as he then thought it within the power of legislation, and still thought so, have presented it. he thought it his duty, whenever any individual conceived himself injured by a law, to receive his petition, and he thought himself in no wise implicated in the manner, form, or subject of the petition, or answerable for it as containing his opinions. if it should be supposed that the assertions in the petition were unfounded, or bore too hard on a certain state, the only way to ascertain that fact was by referring to a committee, that the necessary inquiries might be reported. he again declared his disapprobation at this subject undergoing any discussion, nor would it have taken place had not the gentleman from south carolina commenced it. mr. platt conceived that every thing which was brought before that house ought to be committed, unless there was manifest indecency in the language, or it should appear that the relief prayed for could not be granted consistently with the power of the house. in his opinion, except one of these two causes prevented, it unquestionably ought to be thus disposed of. as for indecency of expression, he could perceive none, either in the petition, or in the arguments of the gentlemen who advocated its reference. a third reason indeed might be mentioned, which was, that the persons whose names were signed did not give consent to the petition and therefore it was not their act. neither of these reasons was proved to have existed. although, agreeably to the constitution, congress could not make any laws to prevent the emigration or importation of any persons whom the several states should, at the adoption thereof think proper to admit, yet congress could, and had made laws relative to fugitives from justice and previous to the year . it was this law they prayed the amelioration of, and that the power of persons over their slaves might be limited, and that the law might be so amended as to prevent its violation. it was for that, and not for the general abolition of slavery they prayed, and surely they ought to be heard; their prayer ought to be committed for that purpose. he disclaimed the least desire, but an abhorrence, of any principle that would rob persons of their property, but at the same time he was not such a dupe to _words_ as to be of the opinion held up by a gentleman, that because the french had used the words "reason" and "philosophy" he should discard them, and with them humanity. mr. thatcher thought that to make use of the incapacity of these people to read or write, as an argument against committing their petition, must arise out of prejudice in his colleague against the general object, or he surely never would have resorted to such pitiful, and he might say, mean, virulent remarks. [mr. t. was here called to order.] this was certainly a "new-fangled doctrine." but the reason why they could not write was because of the degraded state of their minds for want of education; many of them, perhaps, in their youth were in slavery. the gentleman from georgia had objected to the reference because the petition contained a system of facts which _he said_ was not true? he (mr. t.) believed they were true, and thus the dispute was in issue. how was this to be ascertained but by inquiry? if the state of georgia should prove themselves innocent of that black stain, it would be to their honor. but no, said the gentlemen, "we will not have it examined into, because it will make us out to be as _black_ as the petitioners themselves?" mr. edmond observed that the gentleman from south carolina had called for the yeas and nays for a particular purpose, to wit, that it should be seen how few voted for this intermeddling with the property of the people in the southern states. mr. e. said he should vote for the reference, and as that opinion would be attached to his conduct, his reasons ought to accompany his vote. he should be as far from wishing to affect the property of the citizens as any gentleman, much less should he wish to affect the constitution. this appeared to him to be a very respectful petition; it mattered not whether the people were black or white; the petition only was to be regarded, and not the color of the persons, who, representing their grievances, asked for such a relief as the constitution could afford them. surely then, every measure ought to be adopted to alleviate their sufferings. was it consistent that the house, instead of a reasonable and patient attention, should come forward and treat this complaint with an inattention which passion only could dictate? was contempt the way to recommend attachment to the government? this ferment and scorn could not be necessary, but he was sure it was highly improper and inconsistent. mr. gallatin said that in his opinion there were many parts of the petition exceptionable, but not being so much acquainted with it as might be necessary to form a decision, he could not say whether or not it was in the power of the house to legislate on it. however, seeing this much in the situation with other petitions, he felt disposed, and should vote for its reference. if it should appear improper for congress to legislate on it, then the committee would so report. he said he was not satisfied that there was no grievance to which the house could apply a remedy; he thought there was such a part. he remembered a petition from delaware once on one of the complaints, that of kidnapping free negroes; therefore, he conceived it was truth, and could be no insult to the states of delaware and maryland to mention it. if so, surely an effectual remedy ought to be applied. in the former state he believed they had made the punishment death, and yet the evil was not prevented, if the complaints of the petitioners were true. mr. waln then withdrew his former motion, and moved "that so much of the petition as related to the slave trade carried on from any part of the united states to any foreign place or country; and so much of the said petition as respected fugitives from justice, or escaped from their masters, be referred to the committee appointed on the th day of december last on the subject of the slave trade." mr. rutledge appealed to the chair to know whether the motion was in order. mr. speaker said, perhaps, that was the only deliberative body in the world where a motion, having been made, seconded, and debated, could be withdrawn by either the mover or seconder. but it had been a practice in that house so to do, and there was no rule against it. the motion was therefore perfectly agreeable to order. mr. rutledge then moved an adjournment, which was carried--yeas , nays . friday, january . benjamin huger, from south carolina, appeared, was qualified, and took his seat. _petition of free blacks._ the house resumed the unfinished business of yesterday, on the resolution for referring certain parts of the petition of absalom jones and others, when mr. rutledge rose to explain his reasons for moving the adjournment yesterday, as not having arisen from a desire of protracting the debate, but because he conceived the chair misunderstood him on the point of order. when he submitted the question of order to the chair, it appeared from the decision to be the speaker's opinion that the question was, whether a member had a right to withdraw a motion in that situation or not. he knew that right to exist, but he doubted of the competency of the house to refer parts of a petition, and not the whole. in his opinion it ought not to be referred, or, if so, the whole ought to be referred generally. he mentioned a petition which was last session presented from northampton county, praying the repeal of the alien and sedition laws, but in their general zeal in the pursuance of those objects severally, other laws were found fault with, particularly those relating to measures of defence. these were thought to be improper for a reference; on which a motion was made to refer a part, but it was then thought the petition could not be divided. he submitted to the gentleman from pennsylvania a very easy mode of acquiring the object, which was by withdrawing the petition and advising the petitioners to present one conformable to the decision, and within the constitutional power of the house. gentlemen were mistaken in saying that petitions of this kind came annually. the session before last the subject was referred to a committee, who made a suitable report upon it, and in order to prevent the continual debate, it was resolved to be a proper object of judicial, and not of legislative cognizance. this brought the matter to such an understanding that he hoped he would have heard no more of it. it appeared to have had the good effect of preventing any application during the sitting of last session. the speaker said the question of order, as now explained by the member from south carolina, was not understood by the chair. from all the examination and the fruits of inquiry which the chair had since acquired, it appeared not to be unusual to refer parts of a subject, for parts of the president's speech had been referred; also, parts of petitions had frequently been referred; on which account the opinion of the chair at present, unless an appeal should be made to the house, was, that the motion of the gentleman from pennsylvania was perfectly in order. mr. waln said it would have been very agreeable to him that the question should have been taken on the motion first made to the house; but, on hearing the warmth with which it was contested, and willing to remove the jealousy of several gentlemen in the house, he thought it best to alter the motion to their wishes. it had been suggested that to withdraw the petition for its modification, would be an easy way to acquire the object. he thought it entirely unnecessary to withdraw it in this stage of business. although he could have wished the words objected to had never been inserted, yet he was not prepared to say that the petitioners had no right to use them. it appeared that these people's sentiments accorded with those of the gentlemen who opposed the reference. they wished to obtain a removal of this great evil when proper: those gentlemen called it an evil which they could wish to get rid of, but they think it cannot be done. mr. w. said he should not have objected to a resolution importing that it would be improper to legislate on the subject of slavery, but so far as relates to the bad traffic, and the practice of kidnapping, they ought to be examined by a committee. on these accounts he was not authorized, nor was he inclined to withdraw the petition. he was in hopes the gentleman from south carolina would not have desisted from his motion for calling the yeas and nays; that gentleman wished the house to show the world that this petition was so irritating and alarming as to merit universal contempt and abhorrence. he believed this gentleman was mistaken as to the small number he supposed would vote for its commitment, and therefore wished he would renew the motion on the question as modified. mr. goode then observed that as a public discussion had taken place upon this subject--one from which he thought congress precluded by the constitution, and one which materially affected the interest and perhaps the safety of a great portion of the united states, and particularly of his constituents, he thought it his duty not only to give his negative in the usual manner, but to call for the pointed disapprobation of the house, and proposed to amend the resolution by adding the following words: "and that the parts of the said petition which invite congress to legislate upon subjects from which the general government is precluded by the constitution, have a tendency to create disquiet and jealousy, and ought therefore to receive the pointed disapprobation of this house." mr. thatcher said it was the first time that he had ever known any petition or part of a petition receive the "pointed disapprobation of the house" by a resolution, even though the object of it was not within the power of the house. several petitions had been received upon which the house had no power. he referred to the petition of john churchman, in december , praying the patronage of government to facilitate his discovery of the longitude, by enabling him to undertake a voyage to baffin's bay. it was reported that great inconvenience operated to prevent the grant prayed for, and no money was allowed, yet no member moved a censure upon the petitioner. was it a desirable object to do away a great evil? it was professed to be the wish of several gentlemen to eradicate it. no gentleman in the house but appeared desirous of embracing it with all his heart. these people only wished the evil destroyed, but did not point out the form. he was willing, for the sake of argument, to admit that slavery did exist and was sanctioned by the laws and constitution of the united states; he did not believe the fact, but as some other gentlemen did, he would admit it for the present. surely it would be desirable that this great evil should be destroyed, if it could be done without injury, nay, with advantage, to the possessors. did the petition go any farther than this? it did not. the second person in the government of the united states had devised a means to procure this object, as also had a certain learned professor. if it was therefore the desire, as avowed, of those gentlemen, and an equitable means had been devised to acquire it, would the reference of a petition which made that request be improper, or would it be impolitic in gentlemen to examine these plans, and if eligible bring about their execution? certainly not. even if a certain sum of money was wanting, he did not believe the house would refuse to appropriate it. who would withhold a few dollars from his purse to facilitate it? then, while such are the propositions, a petition in behalf of its accomplishment ought to be heard; if it be not, it must fix a national indignity and stigma which ages of good actions could never wipe away. mr. dana was not of the opinion of a number of gentlemen, that the house ought to express its indignation against these petitions. the indignation of that house ought to be limited to certain objects; it might be expressed against an offending nation, but he much doubted whether it became it to express that high sensation against any individuals. he thought no circumstance could occur which called for such condescension, and therefore he could not approve of words so strongly expressed upon an occasion comparatively so trivial. if the gentleman from virginia would so convey his ideas as to express the impropriety of those subjects for the consideration of this house, he was willing to agree with him. mr. rutledge thought it a little extraordinary that when gentlemen from some parts of the union were positively assured that very serious, nay, dreadful effects, must be the inevitable consequence of their discussion on this subject, they still would persist. he used strong words, he said, because no others would be appropriate. gentlemen recommended the subject to be calmly argued. would gentlemen feel calm if measures were taken to destroy most of their property? would calmness be consistent if entering wedges were prepared to ruin the property of whole estates? if ever it was justifiable to be warm on any subject in the house, it surely was on an occasion like the present, when imminent danger was in view. yes, we deem this as an entering wedge to an inevitable loss of our property, if persisted in. it appeared by the gentleman's arguments that he had just been reading the opinions of his brother philosopher, brissot. three emissaries from st. domingo appeared in the hall of the convention, demanding the emancipation of their species from slavery. the convention were told it would operate as an entering wedge that would go to the destruction of property, and the loss of one of the finest islands in the world; that it would be murderous in the extreme; that it would open scenes which had never been practised since the destruction of carthage; that a whole rich country would be buried in blood; that thousands would instantly be reduced to abject penury; that the first towns in that fine island would be reduced to a heap of ashes. but those gentlemen said no, it cannot be, all our desires originate in philanthropy--we wish to do good! but, sir, we have lived to see these dreadful scenes. these horrid effects have succeeded what was conceived once to be trifling. most important consequences may be the result, although gentlemen little apprehend it. but we know the situation of things there, although they do not, and knowing we deprecate it. there have been emissaries amongst us in the southern states; they have begun their war upon us; an actual organization has commenced; we have had them meeting in their club rooms, and debating on that subject, and determinations have been made. it might be wrong in me to mention these things, because many of those people can read and write, and will be informed of what i am now saying, which they think i did not know, but knowing, i am determined to make use of. sir, i do believe that persons have been sent from france to feel the pulse of this country, to know whether these are the proper engines to make use of: these people have been talked to; they have been tampered with, and this is going on. they now will see that the argument has been agitated in the legislature; that the subject of emancipation has been discussed. is not this extremely wrong, when gentlemen are told how much it puts our property at hazard. although these people are unable to do any harm, yet the work will be done by gentlemen in this house, _they_ must be answerable for the mischief. before i had the honor of a seat in this house, one question which was agitated by the people was, how do the general legislature regard this species of property? i said, our brethren in the northern states are willing to leave this business entirely to us who possess it--they will not intermeddle. i did hope that they never would take the lead in any arguments of this dangerous tendency. but, as gentlemen have gone into this business, i find i am compelled to use arguments which otherwise ought not to be mentioned. i recollect that gentlemen in france used arguments like the gentleman from massachusetts: "we can indemnify these proprietors." but how did they do it, or how can it be done?--not at all. farther, we were told these things would take place, we need not be alarmed; it was inevitable; that it was reasonable and unavoidable. sir, it never will take place. there is one alternative which will save us from it, but that alternative i deprecate very much; that is, that we are able to take care of ourselves, and if driven to it, we will take care of ourselves. mr. jones had hoped that the decision of congress when sitting at new york would have put a final stop to any future applications, and the councils of the united states would have been troubled no farther with them. it was justly and wisely proved that it was a difficulty unfit for congress to attempt, on account of the extremely different local circumstances and species of property possessed by the northern and southern members, who were all met in one convention. however, he must do justice to the candor of some gentlemen from the north, who had vindicated their right to this property. mr. j. did not think there was any more probability of discovering an eligible and just mode of acquiring the object of _emancipation_, than there was in the case referred by the gentleman to mr. churchman's discovery of _longitude_. all researches into these attempts were illusory, and both alike impracticable at this time, if ever they would be. however, he was certain that the honorable gentleman's manner of treating the subject would give rise to a just jealousy in those parts of the united states whose property consisted only in slaves. as to the state he represented, as he before said, a very heavy penalty was the fine on each slave imported, and killing, maiming, or ill-treating them was punished severely by the whites. he could not think but the arguments of some gentlemen must originate from improper motives. mr. edmond could not conceive any danger from committing this petition, whatever alarms some gentlemen had apprehended. but as gentlemen apprehended so much danger from committing certain parts of the petition, he would be willing to quiet these alarms, and do every thing reasonable by expressing an idea that congress would not legislate upon what belonged not to them. the amendment at first proposed, he professed himself much opposed to, upon the ground that the house were about to express a pointed disapprobation towards the petitioners, which he conceived wrong, because no censure could be due where a petition was respectfully addressed. but as now modified he had no objection to adopt the amendment; not that he conceived it important, but because it tended to quiet the minds of some gentlemen in the house. mr. waln again said, that it was not his intention to advocate the emancipation of slaves, but only to ameliorate their state. he therefore would cheerfully consent to the amendment as amended. consent being given by the mover to incorporate the amendment with the original resolution, it was now all before the house in the form of one resolution. mr. thatcher said, as an abstract proposition, he should have no objection; he thought the house ought to give no countenance to any thing that it could not legislate on by the constitution; but as he did not believe the petition contained any such proposition, he must adhere to his former sentiments, and could not consent to the incorporation of the words. as amended, he disliked it much less than before, but he did not like it as connected with the first motion. mr. j. brown asked whether it was in order for a gentleman to speak five or six times. mr. thatcher said he had spoken but once on this question. the gentleman from rhode island need not be afraid, for he was not now going to say much about slavery, which was the nearest to his heart. mr. t. was fully of the opinion that the house had a right to take up the subject, and give it a full, free, and deliberate discussion, but this did not appear to be the general opinion. as he was opposed to the motion, as amended, he was willing his name should appear against it, even though no other gentleman should think fit to vote with him. mr. gallatin conceived that there certainly were parts of the petition over which that house had no power, for though the petitioners did not pray for emancipation to be completed immediately, yet they anticipated that it would some time be done, and their prayer included a wish that the house would take a preparatory step. as to the amendment, although he did not like the wording of it altogether, he had no objection to the principle, and therefore should vote for it; for he thought it right to say that it was improper for the house to legislate on the subject. what was not specifically acknowledged by the constitution, in his opinion, carried with it a doubt upon which the legislature ought not to enter. mr. thatcher called for a division of the question. mr. nicholas, on this, expressed some embarrassment as to giving his vote, on which he moved to strike out the latter part. the same appeared to pervade the minds of several gentlemen. mr. waln, therefore, to relieve the house from the situation, withdrew his acquiescence to the amendment, so as to leave the questions distinct. the yeas and nays had been several times moved during the embarrassed state of the house, but were only taken once, to wit, on the amendment to the proposition: "and that the parts of the said petition which invite congress to legislate upon subjects from which the general government is precluded by the constitution, have a tendency to create disquiet and jealousy, and ought therefore to receive no encouragement or countenance from this house." the question was taken, that the house do agree to the same, and resolved in the affirmative--yeas , nay , as follows: yeas.--willis alston, george baer, theodorus bailey, bailey bartlett, james a. bayard, john bird, phanuel bishop, jonathan brace, john brown, robert brown, christopher g. champlin, gabriel christie, matthew clay, william c. c. claiborne, john condit, samuel w. dana, john davenport, franklin davenport, thomas t. davis, john dawson, john dennis, george dent, william edmond, joseph eggleston, lucas elmendorph, thomas evans, abiel foster, dwight foster, john fowler, jonathan freeman, albert gallatin, henry glenn, samuel goode, chauncey goodrich, elizur goodrich, william gordon, edwin gray, andrew gregg, roger griswold, william barry grove, john a. hanna, robert goodloe harper, joseph heister, archibald henderson, william h. hill, david holmes, benjamin huger, james h. imlay, george jackson, james jones, aaron kitchell, henry lee, nathaniel macon, john marshall, lewis r. morris, anthony new, john nicholas, joseph h. nicholson, abraham nott, harrison g. otis, robert page, josiah parker, jonas platt, leven powell, john randolph, john read, john rutledge, junior, samuel sewall, william shepard, richard stanford, david stone, thomas sumter, benjamin taliaferro, john chew thomas, richard thomas, john thompson, abram trigg, philip van cortlandt, peleg wadsworth, robert waln, robert williams, lemuel williams, and henry woods. nay.--george thatcher. and then the main question, to agree to the said motion, as amended, being taken, it was resolved in the affirmative. tuesday, january . james sheafe, of new hampshire, appeared, produced his credentials, was qualified, and took his seat in the house. friday, february . _case of jonathan robbins._ the following message and documents were received from the president of the united states, which were read, and ordered to lie on the table: _gentlemen of the house of representatives_: in consequence of your request to me, conveyed in your resolution of the fourth of this month, i directed the secretary of state to lay before me copies of the papers intended. these copies, together with his report, i now transmit to the house of representatives, for the consideration of the members. john adams. united states, _feb. , _. department of state, _february , _. the secretary of state has prepared, as directed, and now respectfully submits to the president of the united states, copies of the papers which probably were contemplated by the house of representatives, in their resolve of the th instant; although no requisition, as the resolve supposes, has ever been received, nor any communication made to the judge of the district court of south carolina, concerning any man by the name of jonathan robbins. but by the proceedings before that judge, as they have been published, it appears that a seaman named thomas nash, the subject of the british minister's requisition, did assume the name of jonathan robbins, and make oath "that he was a native of the state of connecticut, and born in danbury, in that state." the secretary, therefore, besides the copy of the requisition, and the copies of his letter to the judge of the district court of south carolina, and of the judge's answer, has prepared, and herewith encloses, copies of the certificates of the selectmen and town clerk of danbury, and extracts of letters from admiral sir hyde parker, satisfactorily proving that the thomas nash, calling himself jonathan robbins, who, on the requisition of the british minister, was delivered by the judge aforesaid, with the assent of the president of the united states, was not an american citizen, but a native irishman, who to his other crimes added _perjury_, in the hope, thereby, to escape the punishment due to _piracy_ and _murder_. the original certificates of the selectmen and townclerk of danbury are in the secretary's possession; and he has compared the extract of admiral parker's letter to mr. liston with the original, and the extract of the admiral's letter to the british consul at charleston, with the passage as recited in the consul's original letter to mr. liston. all which is respectfully submitted. timothy pickering. copy of a note from robert liston, esq., envoy extraordinary and minister plenipotentiary of his britannic majesty, to timothy pickering, secretary of state of the united states. philadelphia, _may , _. r. liston presents his respects to col. pickering, secretary of state. a seaman of the name of thomas nash having been committed to jail in charleston, south carolina, at the instance of his majesty's consul there, on suspicion of his having been an accomplice in the piracy and murder committed on board his majesty's ship hermione, and information of the circumstance having been transmitted to vice admiral sir hyde parker, a cutter was despatched to charleston, with an officer on board to whom the man was well known, in order that his person might be identified, and that he should be carried to the west indies for trial. but on the application of the consul for the restoration of nash, in conformity to the treaty of , judge bee and the federal attorney were of opinion that he could not with propriety be delivered up, without a previous requisition on my part made to the executive government of the united states. may i therefore request, sir, that you will be pleased to lay this matter before the president, and procure his orders that the said thomas nash be delivered up to justice. letter from the secretary of state to judge bee. department of state, _philadelphia, june , _. sir: mr. liston, the minister of his britannic majesty has requested, that thomas nash, who was a seaman on board the british frigate hermione, and who, he is informed, is now a prisoner in the jail of charleston, should be delivered up. i have stated the matter to the president of the united states. he considers an offence committed on board a public ship of war, on the high seas, to have been committed within the jurisdiction of the nation to whom the ship belongs. nash is charged, it is understood, with _piracy_ and _murder_, committed by him on board the above mentioned british frigate, on the high seas, and consequently within the jurisdiction of his britannic majesty; and therefore, by the th article of the treaty of amity with great britain, nash ought to be delivered up, as requested by the british minister, provided such evidence of his criminality be produced as, by the laws of the united states or of south carolina, would justify his apprehension and commitment for trial, if the offence had been committed within the jurisdiction of the united states. the president has in consequence thereof authorized me to communicate to you "his advice and request" that thomas nash may be delivered up to the consul or other agent of great britain, who shall appear to receive him. i have the honor to be, &c. timothy pickering. hon. thomas bee, _judge of the district of south carolina_. letter from thomas bee, esq., to the secretary of state, dated charleston, south carolina, july st, . in compliance with the request of the president of the united states as stated in your favor of the d. ult., i gave notice to the british consul that at the sitting of the district court on this day i should order thomas nash, the prisoner charged with having committed murder and piracy on board the british frigate hermione, on such strong evidence of his criminality as justified his apprehension and commitment for trial, to be brought before me on habeas corpus, in order to his being delivered over agreeably to the th article of the treaty of amity with great britain. the consul attended in court and requested that the prisoner should remain in jail until he had a convenient opportunity of sending him away. i have therefore directed that he remain in prison, until the consul shall find it convenient to remove him. i have the honor to be, with great respect, your most obedient servant, thomas bee, _district judge of south carolina_. hon. t. pickering, _secretary of state_. * * * * * danbury, _sept. , _. we, the subscribers, selectmen of the town of danbury, in the state of connecticut, certify that we have always been the inhabitants of said town, and are from forty-five to fifty-seven years of age, and have never known an inhabitant of this town by the name of jonathan or nathan robbins, and that there has not been, nor now is any family known by the name of robbins within the limits of said town. certified, per eli mygot. eben benedict. justus barnum. ben. hichcok. * * * * * danbury, _sept , _. the subscriber, late town clerk for the town of danbury, in the state of connecticut, certifies that he kept the town records twenty-five years, viz: from the year until the year ; that he is now fifty-six years of age, and that he never knew any person by the name of robbins, born or residing in the said town of danbury, during that term of twenty-five years, before or since. major taylor. * * * * * extract of a letter from admiral sir hyde parker, to robert liston, esq., envoy extraordinary and minister plenipotentiary of his britannic majesty to the united states, dated port royal harbor, "_jamaica, sept. , _. "i have had the honor of receiving duplicates of your excellency's letters, numbered , , , and, in answer thereto, acquaint you that in consequence of nash, one of the ringleaders in the mutiny, murders, &c., on board the hermione, being delivered up by the united states to me, he has been tried at a court martial, and sentenced to suffer death, and afterwards hung in chains, which sentence has been put into execution. he acknowledged himself to be an irishman." * * * * * extract of a letter from benjamin moodie, esq., consul of his britannic majesty at charleston, south carolina, to robert liston, esq., envoy of his said majesty to the united states, dated november , . in consequence of many obstacles i had to encounter in obtaining the delivery of thomas nash, late of his majesty's ship hermione, and of the numerous publications to the northward and in this place, i wrote to admiral sir hyde parker, requesting he would be good enough to send me minutes of the court martial, to which he answered under date th september: "i am to acquaint you that nash has been executed agreeably to a court martial, and that he confessed himself to be an irishman; and it further appears, by the hermione's books, that he was born at waterford; on the st december, , entered a volunteer on board the dover, received £ bounty money, and was removed to the hermione, th of january, . and with respect to transmitting the minutes of his trial, that is not in my power, but rests with the lords of the admiralty only." monday, february . _amy dardin's claim for the horse romulus._ the petition of amy dardin was called up, and after some opposition, on account of a former reference and decision, was referred to the committee of claims. thursday, february . _military interference in elections._ mr. leib called up for consideration the following resolution, which he laid on the table on the th instant, viz: _resolved_, that a committee be appointed to _bring in a bill making_ provision for the removal of the regular troops of the united states which may be stationed where an election is held, and that such removal shall take place at least two days previous to such election, and to a distance not less than two miles. mr. otis moved to amend the resolution by striking out the words in _italic_, in the second line, and inserting "inquire into the expediency of." a long debate ensued on this motion, in which it was conceded, on all sides, that the resolution was too definite, and left nothing in the power of the committee to act on, except merely bringing in a bill conformable to it. if excesses had been committed by the military at elections, and they were guilty of improper interference, it seemed to be the wish of every member that some provision should be made to guard against them in future; but they were unwilling to say what that provision should be, until an inquiry were made into the facts stated. the removal of the troops to the distance mentioned, was also particularly objected to, as it might leave fortifications, arsenals, and military stores, for two or three days, entirely unprotected. mr. leib at length withdrew his original proposition, and submitted the following, which was adopted without objection, viz: "_resolved_, that a committee be appointed to prepare and report a bill, containing such legislative provisions as may be judged expedient, either for removing any military force of the united states, from any place of holding elections, or for preventing their interference in such elections." mr. marshall, mr. leib and mr. otis, were appointed the committee. _amendment to the constitution._ mr. livingston laid the following joint resolution on the table: _resolved by the senate and house of representatives of the united states of america, in congress assembled_, that the following article be proposed to the legislatures of the several states, as an amendment to the constitution of the united states, which, when ratified by three-fourths of said legislatures, shall be valid as a part of the said constitution, viz: no judge of any court of the united states shall, during his continuance in office, or within six months after he may have resigned the same, be appointed to any other than a judiciary office, under the united states. monday, february . _case of jonathan robbins._ mr. rutledge said, he had expected that some order would have been taken on the message of the president, before this time, by the gentleman who called for it; but as he had been disappointed, he would now give notice to the honorable member from new york that he would call for some order upon the message to-morrow. mr. livingston said, the gentleman had momentarily anticipated him; he meant to have moved for a reference to a committee of the whole house this morning, with an intention to introduce certain resolutions, and he would now make that motion. the question on commitment was put and carried--yeas , nays ; and was made the order of the day for friday. mr. bayard then laid the following resolution on the table, which was read and referred to the above committee, viz: _resolved_, that the conduct of the executive government of the united states, in relation to the requisition made by his britannic majesty's minister, of the delivery up to justice of thomas nash, otherwise called jonathan robbins, upon the charge of murder, committed on board of the hermione british frigate, which said nash had sought an asylum within the united states, was conformable to the duty of the government, and to the obligations of good faith stipulated in the th article of the treaty of amity, commerce, and navigation, made with great britain. thursday, february . _case of jonathan robbins._ mr. livingston proposed the following resolutions: "_resolved_, that it appears to this house that a person, calling himself jonathan robbins, and claiming to be a citizen of the united states, impressed on board a british ship-of-war, was committed for trial in one of the courts of the united states for the alleged crime of piracy and murder, committed on the high seas, on board the british frigate hermione: that a requisition being, subsequent to such commitment, made by the british minister to the executive of the united states, for the delivery of the said person (under the name of thomas nash) as a fugitive, under the th article of the treaty with great britain, the president of the united states did, by a letter written from the department of state to the judge who committed the said person for trial, officially declare his opinion to the said judge that he 'considered an offence committed on board a public ship of war on the high seas to have been committed within the jurisdiction of the nation to whom the ship belongs;' and, in consequence of such opinion and instruction, did advise and request the said judge to deliver up the person so claimed to the agent of great britain, who should appear to receive him, provided only that the stipulated evidence of his criminality should be produced. that in compliance with such advice and request of the president of the united states, the said person so committed for trial was, by the judge of the district of south carolina, without any presentment or trial by jury, or any investigation of his claim to be a citizen of the united states, delivered up to an officer of his britannic majesty, and afterwards tried by a court martial, and executed on a charge of mutiny and murder. "_resolved_, that inasmuch as the constitution of the united states declares that the judiciary power shall extend to all questions arising under the constitution, laws, and treaties, of the united states, and to all cases of admiralty and maritime jurisdiction: and, also, that the trial of all crimes (except in cases of impeachment) shall be by jury; and that such trial shall be held in the state where such crime shall have been committed; but when not committed within any state, then at such place or places as congress may by law have directed; and inasmuch as it is directed by law that the offence of murder committed on the high seas shall be deemed to be piracy and murder, and that 'all crimes committed on the high seas, or in any place out of the jurisdiction of any particular state, shall be tried in the district where the offender is apprehended, or into which he may be first brought:' therefore the several questions, whether the alleged crime of piracy and murder was committed within the exclusive jurisdiction of great britain; whether it comes within the purview of the said twenty-seventh article; and whether a person stating that he was an american citizen, and had committed the act of which he was accused in attempting to regain his liberty from illegal imprisonment, ought to be delivered up, without any investigation of his claims to citizenship, or inquiry into the facts alleged in his defence, are all matters exclusively of judicial inquiry as arising from treaties, laws, constitutional provisions, and cases of admiralty and maritime jurisdiction. "_resolved_, that the decision of those questions by the president of the united states, against the jurisdiction of the courts of the united states, in a case where those courts had already assumed and exercised jurisdiction: and his advice and request to the judge of the district court that the person thus charged should be delivered up, provided only such evidence of his criminality should be produced as would justify his apprehension and commitment for trial, are a dangerous interference of the executive with judicial decisions; and that the compliance with such advice and request on the part of the judge of the district court of south carolina, is a sacrifice of the constitutional independence of the judicial power, and exposes the administration thereof to suspicion and reproach." the question of reference to the committee of the whole was taken and carried--yeas . the house then adjourned. friday, february . _eulogium on the character of washington._ a message was received from the senate informing the house that the senate had this day come to the following resolution, viz: "_resolved_, that the senate will to-morrow, at half past o'clock, meet in the senate chamber, and from thence walk in procession to the church in race street, to hear the eulogium to be pronounced on the character of general washington." ordered to lie on the table. the speaker said he was requested, by a member of the catholic church, to inform the house that seats were provided for the accommodation of such members as would please to attend to hear the delivery of the oration to-morrow. mr. rutledge said, before the receipt of the message from the senate, he had intended to move that when the house adjourn they do adjourn till monday; but the senate having informed the house that they intended to walk in procession, he conceived this house ought to come to a similar resolution, and moved the following: "_resolved_, that the house of representatives will meet to-morrow, at half-past o'clock, at their chamber, and from thence walk in procession to the church in race street, to hear the eulogium there to be pronounced on the character of general washington." it was objected to this resolution, that it had not been contemplated this house would walk in procession, no arrangement having been made for that purpose; and that as it might be the wish of several members to attend the oration at the catholic church in preference to the one in race street, it ought to be left to their own option. the question on the resolution was put and negatived--yeas , nays . monday, february . _western lands._ the house resolved itself into a committee of the whole on the report made the th instant, by the committee appointed to inquire whether any, and, if any, what, alterations are necessary in the laws providing for the sale of the lands of the united states north-west of the ohio; and, after some time spent therein, the committee rose and reported several resolutions thereupon; which were severally twice read, and agreed to by the house, as follows: _resolved_, that all the townships directed to be sold, either in quarter townships or in tracts of one mile square, by the act "providing for the sale of the lands of the united states, in the territory north-west of the river ohio, and above the mouth of kentucky river," shall be subdivided into half sections, containing, as nearly as may be, three hundred and twenty acres each: the additional expense of surveying to be paid by the purchaser, at the rate of three dollars per tract. _resolved_, that all the said lands shall be offered for sale at public sale, in tracts of three hundred and twenty acres as above directed: _provided_, that the same shall not be sold under the price of two dollars per acre, and that the sale shall be at the following places, to wit: all the lands contained in the seven first ranges of townships, and north of the same, shall be offered for sale at pittsburg. all the lands contained in the eight next ranges of townships, shall be offered for sale at marietta. all the lands lying west of the fifteen first ranges of townships, and east of the sciota river, shall be offered for sale at chillicothe. all the lands lying below the great miami shall be offered for sale at cincinnati. _resolved_, that one or more land offices shall be opened in the north-western territory, and that every person be permitted to locate and purchase, at the rate of two dollars per acre, one or more of the half sections that shall not have been sold at public sale. _resolved_, that the payments for lands purchased either at public or private sale, may be made as heretofore in public securities, and shall be made in the following manner, and under the following conditions, viz: st. at the time of purchase, every purchaser shall deposit one-twentieth part of the amount of purchase-money; to be forfeited, if, within three months, one-fourth of the purchase-money, including the said twentieth part, is not paid. d. one-fourth of the purchase-money to be paid as aforesaid, within three months, and the other three-fourths in three equal payments, within two, three, and four years, respectively, after the date of the purchase. d. no interest to be charged in case of punctual payment; but interest at the rate of six per cent. a year, to be charged from the date of purchase, on any part of the purchase-money which shall not have been paid at the time, respectively, when the same shall have become due. th. a discount at the rate of eight per cent. a year, to be allowed on any of the three last payments, which shall be paid before the same shall have become due. th. if any tract shall not be completely paid for within one year after the date of the last payment, the tract to be sold in such manner as shall be provided by law; and after paying the balance due to the united states, including interest, the surplus, if any, to be returned to the original purchaser. _ordered_, that a bill or bills be brought in, pursuant to the said resolutions; and that mr. harrison, mr. brace, mr. gordon, mr. davis, mr. lyman, and mr. gallatin, do prepare and bring in the same. tuesday, february . _case of jonathan robbins._ the house having resolved itself into a committee of the whole on the message of the president respecting jonathan robbins, a short debate took place whether the committee should take up the business of the resolution first proposed by mr. bayard, or those subsequently offered by mr. livingston. mr. bayard seemed inclined to withdraw his motion, but the committee seeming of opinion that both resolutions were within their jurisdiction, and that they might proceed on either, the question was taken whether the committee would proceed on the resolutions of mr. livingston and carried in the affirmative.[ ] messrs. bayard, rutledge, otis, &c., voting in favor of the question, and messrs. livingston, nicholas, &c., against it. mr. livingston then entered upon an argument in support of the resolutions which he had some days before submitted to the house, and which now were taken up. soon after he began the discussion, he was proceeding to read a deposition of jonathan robbins, and certificates accompanying the same, to prove himself a citizen of the united states, in which the deponent swore, before the court of south carolina, that he was born at danbury in the state of connecticut, and that he was impressed from on board the american brig betsey, by the crew of the british frigate, about two years before, where he was detained contrary to his will until the mutiny occurred. mr. bayard opposed the reference to a fact so incompetently authenticated as the report of a case upon newspaper testimony, especially when, if it had been the desire of the gentleman to have introduced it as evidence, it was extremely easy to have procured the record of the court before he proceeded on his allegations. if such evidence as this was to be admitted, other and perhaps more important evidence might next be introduced to impose on the committee. besides, it certainly must be looked upon as _ex parte_ evidence, which it was impossible to repel. mr. b. submitted to the chair whether it would be in order to admit any fresh evidence to support the resolutions, when all the documents which had been asked for, and which had come to the knowledge of the executive, had been submitted to the house. mr. gallatin, on the question of order, contended for the admission: this document, he said, was referred to as authentic, in his letter. he says, "that, by the proceedings before that judge, (bee,) as they have been published, it appears that a seaman named thomas nash did assume the name of jonathan robbins, and make oath that he was a native of the state of connecticut," &c. certainly it cannot be deemed improper to refer to the identical document there mentioned. if it was proper for the secretary of state to make the allusion, the house could take it up under the same idea. he did not think it was introduced as evidence before the committee. mr. dana said he was very sorry the gentleman had been interrupted; he could not think of admitting it as evidence, but the gentleman might read it as part of his speech, which perhaps might otherwise have a chasm in it. mr. livingston said he did wish to read this paper as part of his speech; and he believed it a very material part, because it was a justification of a point which he wished to establish; he wished to show the committee that jonathan robbins claimed to be an american citizen, and that he said he was impressed. this he swore to in court; and that he did so, he hoped would be admitted. he said he only introduced it with this view. surely he could not be so far mistaken in his law knowledge as to be thought to have said that the culprit could be evidence in his own behalf. if _he did say_ he was a citizen, then the matter, upon examination, must appear more serious than gentlemen would be willing to think. mr. bayard had no doubt but it was the gentleman's intention to impress the force of the facts contained in that paper upon the minds of that committee; and to suppose it would have no impression would be absurd. it would afterwards be said that this man was admitted to be an impressed american citizen, and that he was praiseworthy in committing what would then be called the homicide. the decision of the committee would be much affected, he said, by the kind of evidence which was adduced. if this was admitted, it would be impossible to ascertain the extent of the principle. other depositions may be produced--indeed, he had no doubt but the gentleman could get proof to any point which he might think it material to ascertain. in saying this, he did not mean to insinuate that any improper steps would be taken by that gentleman, but there were volunteers enough to be found who would step forward in order to answer a party purpose, and make oath of any thing. mr. livingston supposed he should increase the astonishment of gentlemen still more when he declared that he did not believe a word of the affidavit; but he believed nash was an irishman, and that he entered on board and committed all the crimes charged to him. it was clear that this affidavit could not be evidence. in admitting this, he believed he did not surrender one point of the resolutions; he should prove that all which he wished to ascertain was that such _claim_ was made to the court. mr. bayard asked where could be the necessity of proving a fact which every member of the house was willing to admit. all acknowledged that nash _claimed_ to be an american citizen; but perhaps the wish of the gentleman was to have additional light on this subject, on which account he introduced the deposition. but, mr. b. said, he was willing only to proceed upon what the house knew from the documents before them, and not take a step on precarious ground. it must be well known what the gentleman wanted to get this admission for; he no doubt wished to prove that, upon his own mere suggestion, he was an american citizen, and that he was impressed--he was entitled to a trial by jury in this country, and on that account the act of sending him away was unconstitutional. this would lead to an extensive field of argument. if there was any necessity for more evidence, or to call witnesses to the bar of the house, let proper measures be taken to procure them, but let them not come forward in any other way. mr. dana read the resolution first offered to the house for a call for papers relative to jonathan robbins; this was answered, he said, by the secretary of state, that no requisition or proceedings had been had in that name; but he presumed allusion was made to the case of thomas nash, concerning whom proceedings were had in the district court of south carolina; in that way, and that only, the secretary made reference to the printed report. in this blundering way, mr. d. said, the business was begun. [he was called to order.] in addition to this, he said, the proceedings of gentlemen were erroneous; but, notwithstanding that, mr. d. said, he would gratify the feelings of the gentleman, as far as his vote would go, for him to read it, but only as part of his speech. no doubt he wished to support some point of his argument by it, and in that view he had a right to read it; but that it was evidence, he denied. the chairman having stated his reasons, concluded with an opinion that the member could not proceed to read the affidavit. mr. gallatin appealed to the committee from the decision of the chair; when there appeared in favor of the decision, and against it. at this point the committee rose, and had leave to sit again. wednesday, february . _case of jonathan robbins._ mr. davis moved that the committee of the whole house be discharged from the further consideration of the resolutions proposed by mr. livingston and mr. bayard, on the affair of jonathan robbins. the small progress, mr. d. said, which was made yesterday in the discussion, fully convinced his mind that nothing at all would be done in it; besides, were he convinced that the subject would be impartially conducted, he did not know of any possible good that could arise from the adoption of the resolutions. if there had been any error in the proceedings of the executive, he conceived that error would correct itself. if there was an improper interference, he was certain it could not have arisen from improper motives, and therefore he sincerely hoped he should not be called upon to give an opinion on the subject. nor, on the other hand, was he at all prepared to compliment the executive, or any officer of the government, for having done what he thought to be right. if he had done right, it was his duty. he did not think it of any great importance; but, most assuredly, if the argument was extended, it would be made a case of much importance. it was better, however, to let the case of jonathan robbins sleep in the committee of the whole, where it then was. he was not prepared to criminate, nor was he prepared to applaud. mr. randolph said, that no gentleman had a higher respect for the motives of the gentleman from kentucky than himself; but, however disagreeable it might be, he must differ from him in his present opinion. he really hoped the gentleman would reconsider the motion he had made, and not stop the gentleman from new york in this early stage of the business. if there were any defects in the papers, and their authenticity was questionable, it must not arise from the gentleman from new york, but from those whose duty it was to furnish all the facts relative to the subject. he was obliged to read a printed paper, because those with whom the authoritative copies are, have not thought proper to furnish the house with them. he hoped, if a stop was put to the proceedings, it would not be to discharge the committee, but to call for authentic copies of all the papers within the reach of the government. it must be acknowledged that the man whose case the house are considering did put in his claims to citizenship, and to the protection of his country on that account. if that acknowledgment is refused on account of the paper which has been produced being a newspaper, reference must be made to what is within the reach of the house--more authentic papers. mr. h. lee considered the motion would have the complete effect any gentleman could wish whose desire it was to reprobate the conduct of the administration of our government. how could the motion be necessary--how be useful? if they were to ask more evidence, said mr. l., i would vote for it to be produced; they have brought the subject before the house--let us see it in the purest colors which it can be placed in. we are ready to meet them here; we are willing they should have every evidence that can be obtained to elucidate their charge; but let not the executive be hung up to reproach without a trial; let not suspicion be encouraged, which must have all the effects of a substantiated charge. i wish them to go on with the discussion, that all the truth may be disclosed, and every fair light be given which the case will bear; for now the people of the united states have their eyes fixed upon our proceedings on this important question. mr. macon was in favor of the motion. if the committee of the whole was not to be discharged, he hoped at least the subject would be postponed till the public business of the session was over; there were many public bills, he said, that must be passed. the house was called upon to judge with almost no testimony, and yet upon this uncertain ground, perhaps a whole week might be spent of the most precious time of the house; for if the house was to rise at the time proposed, the loss of this time would certainly be felt. as to the impression it would leave on the minds of the people, they had as many facts to judge from as the house, and they certainly would form an opinion, whether the house did so, or not. gentlemen were very much mistaken, he said, if they undertook to lead the people; they would think, and they would show what their judgment was when a proper time came for that purpose. the time the people would take to show their approbation or disapprobation of the measures of the administration was at elections, and then they would do it. mr. dana was against the postponement of the subject, or the rising of the committee. it was to be recollected that the business had assumed its present shape only in consequence of the zeal of the gentleman from new york, and his coadjutors, to censure the executive. on the th of february, it was committed to the whole house; contrary to the opinion of a number of gentlemen, who wished the facts investigated by a select committee; thirteen days then elapsed before he had prepared his resolutions--resolutions not calculated to make an inquiry into the conduct of the executive, but expressive of the most pungent censure upon his conduct. these resolutions were produced upon the papers which, at the desire of those gentlemen, were submitted to the house. the only question then, is, do the papers upon which those resolutions are predicated warrant the censure contained in them, or not?--it certainly would be a high reproach to the very idea of a public inquisition to admit more evidence upon those grounds. still, however, let gentlemen go on in their heterogeneous proceedings, the house would have the wisdom justly to appreciate the various attempts made to clear themselves of a predicament in which their over-arduous attempts to censure had thrown them. mr. livingston conceived it his duty to answer the observations of the gentleman from connecticut, (mr. dana,) as to the resolutions being founded upon the facts then before the house. he did not think the facts were precisely sufficient to warrant every idea contained in the resolutions. when the original call for papers was agreed to by the house, he had hoped that something more authentic than newspaper testimony would have been referred to by the executive; and upon that he was now compelled to act, if at all. the gentleman has said that my zeal and that of my coadjutors, to censure the executive, has brought us into this situation. who, sir, i would ask the gentleman, are my coadjutors? that gentleman himself was my coadjutor, and every gentleman in the house, because the resolution was adopted. the house directed the inquiry, and every gentleman must therefore take the burden, in part, with me. mr. craik said, that very early in this business he thought the house were entering into it very improperly, either having nothing at all to do with it, or else taking wrong measures, if they had; he thought then, and was yet of opinion, that if the object was to impeach the president, measures ought to have been taken accordingly. he never did look upon the house of representatives as having either the power to censure or to approbate the conduct of the executive, and, therefore, he equally disapproved of the resolutions of the gentlemen from new york and delaware; and, upon that ground, he felt strongly inclined to vote with the gentleman from kentucky for giving the whole subject the go by, and getting clear of it by any possible means. mr. harper agreed with the gentleman, that it would be folly for the house to spend time in useless discussion, which could lead to no decision; but, viewing this resolution as he did, he must conclude it of more importance; he thought it the direct road to an impeachment of the president of the united states, and, if so, surely it must appear important. the resolution declared, in express terms, that the executive had exercised unconstitutional powers--one of the most dangerous crimes that he could commit. if he had so exercised his power, the inevitable consequence must be, that the president of the united states must be impeached by this house. then, how could any gentleman say this was a trifling question, and one with which the house had nothing at all to do? certainly no question can be more important. mr. rutledge regretted that he could not join with his friend from maryland, (mr. craik,) in thinking this consideration useless; he believed the attention of the people had been called to view this subject, and they were anxiously looking for a decision in some way. neither did he think, with his honorable friend, that the house had nothing to do with it, because no impeachment could grow out of it. it was impossible to say what the gentleman meditated in his resolutions, but one thing was certain, if the gentleman has wished to promote an impeachment, he could not have taken a more direct means for it, if the resolutions should be carried. mr. kitchell thought no good could arise from the investigation of this subject, because he did not know what was to be done in it, let the decision be what it might. the gentleman from south carolina (mr. harper) wished to have an opportunity of showing that every part of the resolution was built on false ground. every gentleman in the house was not so fond of speaking nor of hearing as was that gentleman, and he hoped, merely on that account, that the house would not spend time on what (in his opinion) could not possibly lead to impeachment. what effect could a discussion have, but to show the world that there were _parties_ in the house, and to raise a rancorous disposition? he did not know what there was in the resolution that could lead to an impeachment, nor did he know what the house, in their censorial capacity, had to do but to impeach. he believed it out of the power of the house to applaud. in short, he did not think they had any thing to do with it. mr. nicholas hoped the discussion would proceed. although there might not be sufficient ground on which to impeach the executive, he could not agree that, therefore, no inquiry ought to be made into his conduct; there might be an error in his conduct, and yet no impeachment be necessary to be raised out of it; and, if so, it would be extremely wrong to suffer it to go out to the world without a decision, after the subject had once been taken up by the house. where there might be no bad intention or wicked design, the action might be of a dangerous tendency, and proper to be inquired into, in order to express an opinion thereupon. mr. n. said he was well pleased that his opinion, that the motion ought to be negatived, accorded with that of the gentleman from south carolina, because it would afford him an opportunity of showing what he said he could show. mr. bayard had no doubt of the competency of the house either to impeach, to censure, or to approbate the conduct of the executive, and of course both the resolutions were in their power. several gentlemen had intimated that the authentic evidence and the whole of the documents were not before the house, and that the executive department was to blame for the deficiency. it appeared that the gentleman himself had forgotten the import of his resolution; it called for such documents as might be in possession of the department of state. now, what could possibly be in possession of that department? the president of the united states had his duties to perform, and the judge of the district his duties; each had their separate documents; and, as neither interfered with the other, therefore, it could not be expected to be in the power of the president to furnish the papers belonging to the courts of south carolina, any further than they came within the joint duties of both. agreeably to treaty, the british consul made a requisition for the person; a copy of this, and the several letters and instructions, were sent to the house, but it was not in the power of the executive to order the judge to furnish him with a record of the proceedings; he was not bound to furnish it if the president had called for it, and no doubt he had furnished the house with every paper in his possession. mr. otis said, when first the motion was made by the gentleman from kentucky, he felt for a moment inclined to lean to it; the motives of that gentleman appeared to be so candid and liberal, that, for the moment, mr. o. confessed, his feelings got the better of his reason. but a short reflection induced him to change an opinion thus hastily formed, and he felt satisfied that to vote with him, would be to display, in the conduct of gentlemen who wished to support the administration of this country, worse than censure. he joined that gentleman in regret that it had gone so far, but certainly it was a subject of the most irritating nature possible: a charge the most serious; a breach of law by the executive magistrate, who is bound to support it and see it carried into effect. it is certainly a charge of much importance, and however disagreeable it might feel to him, mr. o. said, he must vote that every argument should be used that could possibly tend to substantiate the charge, that nothing of truth might be hidden. mr. o. said he did not know to what points the evidence required by the gentleman from new york could apply, except it was to that of his being an american citizen, and of his being impressed. an affidavit was produced to prove these facts, but it would be found from an examination of the documents that nothing relating to those points was in the office of the department of state; for the date of the affidavit of robbins is the th of july, but the order of the secretary of state bears date the th of june, so that no papers as to his claim can be in the possession of that department. mr. o. thought the documents before the house contained every thing that was important to the point. mr. craik was sorry that gentlemen who advocated this motion should be charged with an opposition to the administration of government; he believed his conduct had heretofore evinced a different line of conduct. he still denied that the mode taken by the resolution could lead to impeachment. it certainly did contain a very great censure, and one which the house had no authority to inflict. mr. gallatin considered the motion to be grounded on two ideas; that there was not sufficient foundation for the house to act upon, and therefore that it was necessary to discharge the committee, or postpone the subject for want of further evidence. it is clear, said mr. g., that the evidence is not sufficient to impeach the district judge of south carolina. if an impeachment of him was the object, it would be impossible to carry it forward without an authoritative copy of the record of the court; but if there was no intention to impeach, he did not think there was any material evidence wanted in order to decide upon the resolution, since it only meant an implication of censure upon the executive and the district judge, and not impeachment. mr. g. agreed there was at first sight some weight in the sentiment expressed by the gentleman from maryland, (mr. craik,) that the house had only a power to impeach but not to censure; but certainly, when it was considered that an act might be committed without any ill motive, and yet the act be injurious, it could not be the subject of impeachment, but it might be of censure. the same act committed with a criminal motive would be impeachable, which without it would be of a nature not to admit of it. again: mr. g. thought that though the house might have ground whereupon to censure, they ought not, at any time; but they had exercised that power. they had in a number of cases approved of the conduct of the president, and if the act of approbation had been done, they surely had as much power to disapprove and censure. the question was then taken on the motion to discharge the committee of the whole from the further consideration, and negatived--yeas , nays . thursday, february . another member, to wit, john smith, from new york, appeared, produced his credentials, was qualified, and took his seat. _case of jonathan robbins._ mr. davis said, as the house had yesterday thought proper to negative a proposition to discharge the committee of the whole from the further consideration of the business, and as one great motive for that motion was the incompetency of evidence before the house, and as he knew it was in the power of the house to procure that evidence by a proper application, he hoped gentlemen would now indulge him in the adoption of the following, which he moved, viz: _resolved_, that the president of the united states be requested to direct the proper officer to lay before this house a copy of the proceedings of the court held in the district of south carolina, in the case of thomas nash, calling himself jonathan robbins. mr. bayard said, if he was persuaded, or if the gentleman could convince him that there was any particular evidence in the hands of any officer that would tend to throw such light as to give the least explanation to the case, he certainly would be willing to accord with the resolution; but he believed every necessary fact was before the house, and this had been acknowledged by several gentlemen. if the object was to prove that nash was an american citizen, and that he was impressed, that could not be necessary as it respected the resolutions of the gentleman from new york, for that gentleman himself had acknowledged that he believed no such thing, but that the whole claim was falsehood. would the gentleman, then, inform the house what point he wished to ascertain, or in what he expected additional proof? he wished information, farther, who was the "proper officer" to whom reference was expected to be made. there are but two officers at all in view, one is the secretary of state, the other the district judge of south carolina; the gentleman could not suppose that the judge would be able to transmit the records of that court previous to the adjournment of the house; and if it could be obtained, no evidence to the point could be expected from him. if, on the other hand, it was meant to call on the secretary of state, it was not to be expected, from the nature of the case, that any more documents were in his hands than those already furnished; he had given copies of the correspondence and requisition, which, it might be fairly inferred, from the nature of his office, was all of which he could be possessed. but if any gentleman doubted this fact, he could apply to the office of the secretary of state, from whom he could procure whatever was in his possession. if it was the intention of the house to close this very disagreeable business in the present session, they must negative the resolution and let the discussion go forward. the gentleman who brought forward the resolution ought to have been provided with every document that was necessary to support the charges, before he suffered them to appear. however, he did not think but the gentleman who proposed the resolutions thought his grounds were quite sufficient to support them. mr. nicholas said he always believed that the testimony was incomplete, but when he heard a gentleman get up and mention particular testimony which he considered so important that without it he should not know how to vote, whatever, mr. n. said, might have been his former satisfaction as to the establishment of the points, he certainly must now be inclined to grant gentlemen every point of evidence that they should think necessary, if within the reach of the house. one particular piece of testimony had been mentioned, viz: that the man had filed an affidavit that he was an american citizen and was impressed on board a british man-of-war. could any gentleman pretend to say that no inference might be drawn from this source and the concomitant facts? the gentleman from new york, to be sure, had declared his satisfaction with the facts that had been produced to the house, but did the gentleman from delaware know that this was the case with any other gentleman in the house? that gentleman's conclusions and impressions were not to be taken as the opinions of others, nor were others obliged to be satisfied because he was; and therefore to couple others in a measure to which they were not privy, and to ascribe opinions to them which they had not expressed, was at least unfair. mr. dana thought this a most extraordinary resolution indeed? was the president of the united states the clerk of the court, to keep the records of it? what had the president to do with the proceedings of that court? it was certainly a total departure from all the forms of judicial proceedings to suppose a thing of the kind. the gentlemen must certainly have mistaken the situation held by the president, or they would never have made such a vast departure from order and propriety of proceeding. the president is not the public accuser; he is not to be called upon for papers with which he has nothing to do. when he found gentlemen outraging every thing that belonged to judicial propriety; when he found them stumbling into error after error, and departing totally from all jurisprudential propriety, mr. d. said, he could not avoid rising to oppose it. mr. livingston said he did hope that this motion would not have been brought forward; but as he meant to vote in favor of it, after having declared his satisfaction with the documents, as sufficient to support his resolutions, he should be accused of advocating a question of which he had before spoken apparently differently, unless he should now give his reasons; and lest he should be accused of a desire to keep alive a calumny against the president of the united states, an effect which had been stated, he took opportunity to answer the insinuation by saying that he as much abhorred so mean a principle as any gentleman in the house. mr. marshall said, it was with no inconsiderable regret that he perceived so much of the time of the house, which ought to be devoted to more beneficial purposes, employed in preliminary discussion. he thought that it was impossible the house could agree to a postponement, which the motion under consideration must cause when it was reflected how much time must be employed in procuring those papers--it could not take less than a month; for they could only be found, he would presume to say in the court of the district of south carolina: it was therefore scarcely to be expected that they could be obtained until just before the rising of the house, a period, if they arrived before the house rose, too late for their consideration. mr. bayard said he could not distinguish between the present motion and one yesterday negatived, because it must operate as a discharge upon the committee of the whole house. there could be no doubt but the secretary of state had furnished all the papers relative to the business in his possession--indeed, he could assuredly say so. he said he held in his hand a letter from the secretary of state, in answer to one from an honorable member of the house inquiring whether there were any more documents in his office; he answered that he had no certified copy whatever but those which he had furnished the president with, from whom they came to the house. gentlemen must then perceive that the mere operation of this resolution was an absolute and inevitable postponement of the business till another session. many gentlemen, who were yesterday ashamed to vote for a postponement, would now have a plausible cover for their vote by calling for additional proof, to accomplish the object of the resolution of yesterday; and thus he feared it would have many advocates, but, however specious the pretext, he hoped it would not be carried. mr. rutledge conceived this motion to be the same as to postpone the business. further information was wanted, and that information could alone come from south carolina. he wished the gentleman from kentucky would read the resolution before he pressed his motion: he would find that the district judge was not charged; no, it was only a charge against the executive; there was not a word of irregularity of proceeding in the court, but the executive was seriously charged. mr. davis explained. he said his objects were to have the record in order to see whether robbins did produce a certificate that he was an american citizen; to see a copy of the warrant by which he was committed; and thirdly, to know what stratagem or what proceedings were used to take him out of the cognizance of the court, where he must have remained, if the president had not interfered. these things he wished to ascertain, but that would be impossible without the court record. mr. rutledge said, he conceived this to be the object, but he by no means thought that the gentleman would be satisfied on these points, were he to be possessed of the record. the gentleman might inquire the reasons for the executive and judicial conduct being as it was, but perhaps he would not receive the information. every gentleman in the house would unite their vote to procure all the testimony within their reach, so as to enable the house to prosecute the business. we know, said mr. r., what monstrous clamor has been raised about this business; we know that great pains have been taken to make the people believe that their fellow-citizen has been torn from his country; that he has been impressed into a foreign service; that the treaty has been violated; that their fellow-citizen has been taken to a foreign country, and there been tried in a summary manner and executed. we have been told for months past that this business would be inquired into; we wish not to avoid it; we will by all means in our power assist it; we have done it. some time since papers were asked for, we agreed with gentlemen that they should be furnished; it was done, and they are now on your table. they have been there many days; so that gentlemen had sufficient time, long before this, to have known whether they were satisfied or not. the gentleman himself who brought forward the resolutions affected to be satisfied, but, in compliance with the wish of his friends, he now wishes to postpone it. we want to bring the matter to a decision, and so far as we can accommodate gentlemen and avoid delay we will do it. mr. nicholson rose to correct what he considered a mistake in the gentleman last up, (mr. rutledge,) when he said that the executive only was implicated in the resolutions; he conceived that the district judge of south carolina was implicated, and that the papers of that court were necessary to examine the conduct of that judge. he read the resolution, and contended that his deduction was accurate. mr. n. said he wanted to know whether the district judge of south carolina had committed this man for trial; this would appear or be disproved by the warrant. that the president of the united states was not to be considered as the servant of that house, he was willing to admit, but he did not think that the president might, with propriety, apply to the judge of the district for the documents of the court; and he did not believe that the president would object to make the application. however, the object he presumed was to procure the papers, no matter from whom; that being the object, he hoped the mover of the resolution would withdraw it, in order to accommodate it more to the feelings of some members in the house, by adopting something like the following: _resolved_, that the speaker of the house of representatives be requested to procure, from the clerk of the district court of south carolina, copies, under seal, of the proceedings of that court, together with the evidence produced in the case relative to the requisition for thomas nash, alias jonathan robbins, who was delivered to his britannic majesty's consul. mr. davis withdrew his resolution, and mr. nicholas moved the substitute, which was now before the house. mr. harper moved a postponement of this resolution to this day week. the object of the resolution which was before the committee of the whole was twofold--a charge on the president, and a charge on the district judge. so much as related to the president of the united states, it was manifest that the testimony called for by this resolution could have no effect whatever upon him, because he left the whole to the judge. the president went no further than to declare that if it should appear that the acts committed by this man came within the purview of the british treaty, the man ought to be delivered up conformably to that stipulation. mr. nicholas thought, with the gentleman last up, that if the only inquiry was as to the conduct of the president, or if the inquiry was only to respect the judge, the papers might be dispensed with; but it was otherwise--the conduct of both was called forth to view by the resolutions, but how far the conduct of either may be reprehensible, depended on the testimony which might appear before the house. it was impossible to say what the president had done until the documents should be seen. if gentlemen refused the inquiry being made of the court in south carolina, they, by that act, made the president answerable for every part of the facts, which he believed they would not pretend to do. he really believed it extremely important to know what steps had been taken in this very serious business, to know whether the man was in course for trial, and whether the president had acted in the hasty and premature manner which was stated, in delivering him up. mr. gallatin could not help observing the disposition which gentlemen evinced of placing the opinions and sensations expressed by one gentleman to the account of others. to take a fair view of the resolutions, what did they amount to? nothing more than the deductions which one man had drawn from the message sent to this house by the executive: these deductions, in the form of a resolution, he had submitted to the consideration of the committee of the whole. now, except it could be proved that that gentleman had made all the deductions of and acted for every gentleman, there could be no ground for saying that every gentleman would be satisfied, without the evidence which might be collected from the records of the district court of south carolina. was any gentleman in the house bound to be satisfied, with the gentleman from new york, that all the facts necessary to be known were furnished? was every gentleman in the house bound to confine himself solely to the resolutions before the house? certainly not. it could not be denied that the evidence now required was essential to a full investigation of the conduct of the judge, who was the principal agent of the executive in this case. mr. h. lee hoped that the gentleman from south carolina would withdraw his motion. he would mention some reasons which would induce him to vote differently from gentlemen with whom he usually had the honor to vote. considering this a question of very great importance, not only to the american people, and to the reputation of the house, but also to the highly respectable character presiding over our government, he trusted the house would, in its whole process, be led by principles so fair and candid, as not to leave the least room for a charge of derogation from its own dignity or of the great subject it was discussing. he would vote for the motion calling for the papers, but he would do it with an expectation that it would not postpone the discussion of the business so far as related to the conduct of the president of the united states. it appeared that the conduct of the president, as charged, was fully before the house; there could be no difficulty therefore to proceed on it; but, as far as respected the judge, mr. l. trusted the record of the court would be sent, for he thought it but fair to gratify gentlemen who considered there was any material evidence wanting. mr. varnum would vote for the resolution proposed; he thought it was doubtful whether the president had acted with propriety or not; but he believed if there had been any incidental impropriety of conduct, it was never done with an evil design, nor with a view to interfere with any other department of the government; but certainly to deny this evidence, which several gentlemen had stated to be necessary to assist them in making up their minds, would stamp a censure on the conduct of those officers as great as that contained in the resolution. he thought the gentleman from new york had a right to bring the subject to the view of the house. if he saw any proceeding which to him appeared dangerous, it was his duty to commence an investigation. no man ought to flinch from what he thought right. the only way to give public satisfaction, in a matter that had so much engaged public attention, was to give all the evidence which could be procured, and let the matter be investigated to the bottom; and, most assuredly, the only way effectually to clear the characters implicated, if they were innocent, was to leave no doubt as to the desire of the house to scrutinize their conduct. but, certainly, the very great reluctance which gentlemen showed to procure all the evidence, and, after all, their denial of it, must leave a suspicion bordering much on guilt. mr. bayard rose, in answer to mr. gallatin and others, and observed, that, with respect to nash calling himself an american citizen before that court, (an object which it was desired to prove by this call for evidence,) they were asked to admit the fact. mr. b. asked, would these gentlemen admit that nash was guilty of the dreadful murders committed on board the british frigate? would they admit that he falsely made the claim? however, he had no disposition to rest on that point. another fact, however, which it was required to admit was as to the jurisdiction of the court of the united states upon the case. mr. b. denied this, and repeated the former arguments in proof of his opinion. he insisted that the whole arrest and proceeding was had at the instance of the british consul and minister, in proof of which he quoted their letters. the record, he said, could not possibly dispense any light to this fact; the record would only give the warrant and some of the depositions first taken before the judge; but as to the court being designated where the case was to be tried, he contended that it was not usual to insert it in the warrant--he never saw one so drawn. it was possible that nash was committed with a view to be delivered up to the british, before the letter was received by the judge from the president; and it was very reasonable that the whole previous business was at the instigation of the british agent, but it was impossible to prove that jurisdiction had attached before the letter directing the delivery to be made was received. mr. jones said, that finding himself, from the vote he was about to give, implicated in the charge made by the gentleman from delaware, (mr. bayard,) that gentlemen who were yesterday ashamed to vote for the proposition to discharge the committee from further consideration of the subject, in general and express terms, because it would imply a distrust of the sufficiency of the ground on which to support the principles of the resolutions, were now disposed to effect the same object by a decision which would, in fact, go to evade the question during the present session, he felt himself impelled, by a respect for his own conduct, to explain the motives which would govern his vote on the present question. he considered the case which had been called into view by the proposition of the gentleman from new york, (mr. livingston,) as one that involved in it the dearest interests and deepest concerns of the people of the united states. the gentleman from delaware (mr. bayard) and the gentleman from connecticut (mr. dana) had indulged themselves in the most violent invectives and unnecessary abuse against the unfortunate, the obscure, and insignificant character, now dead, who was the subject of this proposition. on this topic they had exercised all their powers of passionate declamation. if this was a grateful theme for the employment of their talents, he did not envy them the enjoyment of it. how that kind of argument would apply to the question, he left to the house to determine. for his part, mr. j. said, he deemed it totally immaterial whether the man was, as they had declared, an irishman or not; whether he was a turk, a hottentot, or a native-born american, if he claimed to be an american citizen, and produced a certificate in due form, under the signature of a proper officer, of his citizenship, and that claim was slighted by the judge, or declared immaterial, and the fact not inquired into of his being a citizen, then he conceived the safety of the citizens of america to be equally put in jeopardy, as if the man had been born and raised in charleston, in the circle of the judge's own acquaintance. if, he asked, a dagger aimed at my breast by an assassin in the dark, should by mistake or impetuosity pierce the bosom of another, would not the discovery of such an attempt awaken alarm, and demand a precaution for my future safety? certainly it would. so in this case, if this man claimed to be a citizen, and wore about him the legal voucher of that claim, and if he was told in the presence of american citizens, "it is of no importance whether you are, or are not a citizen, that is a point of no concern in the case," notwithstanding it may afterwards be found he was no citizen, yet would it equally involve the safety of every true citizen who might fall into similar circumstances. we may congratulate ourselves that it has not fallen on a fellow-citizen, but we ought still to improve the lesson this case has presented. mr. j. hoped that it would be improved, and that, at least, legislative provisions would be made to prevent this decision from operating on a citizen, if such a case should occur in future. the question was then taken on the motion of mr. harper, to postpone the consideration of the motion of mr. nicholson, for a call of the record of the district court of south carolina, for one week, and negatived--yeas , nays . the question then recurred upon adopting the resolutions. mr. marshall spoke at length against it. he contended there was no prospect of coming to a decision of the original question this session, if this were adopted; and asked if the character of the president of the united states ought to be held up in the suspicious view in which the resolution placed it, until the next session of congress? he hoped not. it seemed to him that a postponement amounted to a declaration to the people of america that there was much cause for suspicion, and that additional evidences were wanted to substantiate it. mr. nicholas replied to mr. m., and contended that the whole truth of the case was to come out of the additional testimony now asked for. an adjournment was then called for, and negatived--yeas . mr. randolph spoke in favor of the resolution, and in answer to mr. marshall. the question was then taken that the house do agree to the motion first proposed, and passed in the negative--yeas , nays . and then the house adjourned. friday, february . mr. harper moved a postponement of the order of the day on the business of jonathan robbins, until monday. he did not conceive much progress would be made this day, and as there was much private business on hand it could not be gone through with. if the business be taken up on monday it can be regularly gone through with without intermission. the motion was agreed to. monday, march . _lake superior lands._ mr. cooper observed that a navy was considered an object of great importance, as was also our extended commerce, and neither of these could be carried on to any profit without a very liberal use of copper. that article could not be purchased at present at less than half a dollar a pound, but by attention to an object which was within our own power it might be had at a very low price. from these considerations he laid on the table the following resolution: _resolved_, that a committee be appointed to bring in a bill authorizing the president of the united states to appoint an agent to purchase of the indians that tract of land on the south side of lake superior, which shall include the great copper bed. mr. c. said, as this invaluable copper mine was well known by individuals, it no doubt would soon become an object of speculation, but wishing to make it of public utility, as it must become if purchased, he hoped the proposition would be adopted. _jonathan robbins._ the house then resolved itself into a committee of the whole on the message of the president respecting jonathan robbins, when mr. livingston spoke about three hours in support of the resolutions he some time since submitted to the house on that subject. mr. bayard was proceeding to follow mr. l. when a member moved the committee to rise and ask leave to sit again. mr. b. objected: he said he was prepared to proceed if the house would have patience at that late hour to hear him. several members expressed a desire that he might proceed, which he was doing, when the speaker hoped the gentleman would give way to a motion for the committee to rise; he had no doubt of his friend being prepared for the discussion, but from the length the answer must necessarily take, the house certainly would be fatigued much before he would conclude. the motion was made and carried. during mr. livingston's observations he introduced a copy of the record of the circuit court in new jersey, where three men were tried and acquitted on the charge of piracy, and one of them for murder, on board of the same frigate and at the same time. this record, on motion of mr. rutledge, was ordered to be printed. mr. nicholas, not being able to account to his satisfaction for the obvious change of conduct in our executive in this recited instance and the one now under the consideration of the house (though precisely the same in facts) any other way than by supposing that a correspondence on the subject had occurred between the executive of the united states and the british government; though he expressed himself to be extremely unwilling, yet he thought it his duty to move that the president be requested to furnish it to the house. an adjournment was immediately called and carried. wednesday, march . the house then resolved itself into a committee on the message, when mr. bayard proceeded, in answer to mr. livingston, in which he spoke about three hours.[ ] the committee then rose, and obtained leave to sit again. thursday, march . a message from the senate informed the house that the senate had passed the bill, entitled "an act declaring the assent of congress to certain acts of the states of maryland and georgia," with an amendment; to which they desire the concurrence of this house. _jonathan robbins._ the house went into committee of the whole on the message of the president, in the case of jonathan robbins, when mr. nicholas spoke about three hours[ ] in favor of the resolutions introduced by mr. livingston, which were negatived--yeas , nays . some discussion then took place on taking up the resolution presented by mr. bayard, which was also with the committee of the whole house. the committee at length rose without entering upon it, and reported their disagreement to the resolutions proposed by mr. livingston; and the question whether the committee should have leave to sit again was taken by yeas and nays, and carried--yeas , nays . the question was then before the house to agree to the report of the committee in their disagreement with the resolutions. mr. gallatin rose, and entered generally into the argument, in a speech of about two hours, after which the house adjourned.[ ] friday, march . _jonathan robbins._ the house took up the unfinished business of yesterday, and the question, will the house agree with the committee of the whole in their disagreement to mr. livingston's resolutions? being under consideration, mr. marshall said, that believing, as he did most seriously, that in a government constituted like that of the united states, much of the public happiness depended, not only on its being rightly administered, but on the measures of administration being rightly understood--on rescuing public opinion from those numerous prejudices with which so many causes might combine to surround it, he could not but have been highly gratified with the very eloquent, and what was still more valuable, the very able and very correct argument which had been delivered by the gentleman from delaware (mr. bayard) against the resolutions now under consideration. he had not expected that the effect of this argument would be universal; but he had cherished the hope, and in this he had not been disappointed, that it would be very extensive. he did not flatter himself with being able to shed much new light on the subject; but, as the argument in opposition to the resolutions had been assailed with considerable ability by gentlemen of great talents, he trusted the house would not think the time misapplied which would be devoted to the re-establishment of the principles contained in that argument, and to the refutation of those advanced in opposition to it. in endeavoring to do this, he should notice the observations in support of the resolutions, not in the precise order in which they were made; but as they applied to the different points he deemed it necessary to maintain, in order to demonstrate, that the conduct of the executive of the united states could not justly be charged with the errors imputed to it by the resolutions. his first proposition, he said, was that the case of thomas nash, as stated to the president, was completely within the th article of the treaty of amity, commerce, and navigation, entered into between the united states of america and great britain. he read the article, and then observed: the _casus foederis_ of this article occurs, when a person, having committed murder or forgery within the jurisdiction of one of the contracting parties, and having sought an asylum in the country of the other, is charged with the crime, and his delivery demanded, on such proof of his guilt as, according to the laws of the place where he shall be found, would justify his apprehension and commitment for trial, if the offence had there been committed. the case stated is, that thomas nash, having committed murder on board of a british frigate, navigating the high seas under a commission from his britannic majesty, had sought an asylum within the united states; on this case his delivery was demanded by the minister of the king of great britain. it is manifest that the case stated, if supported by proof, is within the letter of the article, provided a murder committed in a british frigate, on the high seas, be committed within the jurisdiction of that nation. that such a murder is within their jurisdiction, has been fully shown by the gentleman from delaware. the principle is, that the jurisdiction of a nation extends to the whole of its territory, and to its own citizens in every part of the world. the laws of a nation are rightfully obligatory on its own citizens in every situation where those laws are really extended to them. this principle is founded on the nature of civil union. it is supported every where by public opinion, and is recognized by writers on the laws of nations. _rutherforth_, in his second volume, page , says: "the jurisdiction which a civil society has over the persons of its members, affects them immediately, whether they are within its territories or not." this general principle is especially true, and is particularly recognized, with respect to the fleets of a nation on the high seas. to punish offences committed in its fleets, is the practice of every nation in the universe; and consequently the opinion of the world is, that a fleet at sea is within the jurisdiction of the nation to which it belongs. _rutherforth_, vol. ii. p. , says: "there can be no doubt about the jurisdiction of a nation over the persons which compose its fleets, when they are out at sea, whether they are sailing upon it or are stationed in any particular part of it." the gentleman from pennsylvania, (mr. gallatin,) though he has not directly controverted this doctrine, has sought to weaken it by observing that the jurisdiction of a nation at sea could not be complete even in its own vessels; and in support of this position he urged the admitted practice of submitting to search for contraband--a practice not tolerated on land, within the territory of a neutral power. the rule is as stated; but is founded on a principle which does not affect the jurisdiction of a nation over its citizens or subjects in its ships. the principle is, that in the sea itself no nation has any jurisdiction. all may equally exercise their rights, and consequently the right of a belligerent power to prevent aid being given to his enemy, is not restrained by any superior right of a neutral in the place. but, if this argument possessed any force, it would not apply to national ships-of-war, since the usage of nations does not permit them to be searched. according to the practice of the world, then, and the opinions of writers on the law of nations, the murder committed on board the british frigate navigating the high seas, was a murder committed within the jurisdiction of the british nation. although such a murder is plainly within the letter of the article, it has been contended not to be within its just construction; because at sea all nations have a common jurisdiction, and the article correctly construed, will not embrace a case of concurrent jurisdiction. it is deemed unnecessary to controvert this construction, because the proposition, that the united states had no jurisdiction over the murder committed by thomas nash, is believed to be completely demonstrable. it is not true that all nations have jurisdiction over all offences committed at sea. on the contrary, no nation has any jurisdiction at sea, but over its own citizens or vessels, or offences against itself. this principle is laid down in _ruth._ , . the american government has, on a very solemn occasion, avowed the same principle. the first minister of the french republic asserted and exercised powers of so extraordinary a nature, as unavoidably to produce a controversy with the united states. the situation in which the government then found itself was such as necessarily to occasion a very serious and mature consideration of the opinions it should adopt. of consequence, the opinions then declared deserve great respect. in the case alluded to, mr. genet had asserted the right of fitting out privateers in the american ports, and of manning them with american citizens, in order to cruise against nations with whom america was at peace. in reasoning against this extravagant claim, the then secretary of state, in his letter of the th of june, , says: "for our citizens then to commit murders and depredations on the members of nations at peace with us, or to combine to do it, appeared to the executive, and to those whom they consulted, as much against the laws of the land as to murder or rob, or combine to murder or rob its own citizens; and as much to require punishment, if done within their limits, where they have a territorial jurisdiction, or on the high seas, where they have a personal jurisdiction, that is to say, one which reaches their own citizens only; this being an appropriate part of each nation, on an element where all have a common jurisdiction." the well considered opinion, then, of the american government on this subject is, that the jurisdiction of a nation at sea is "personal," reaching its "own citizens only;" and that this is the "appropriate part of each nation" on that element. this is precisely the opinion maintained by the opposers of the resolutions. if the jurisdiction of america at sea be personal, reaching its own citizens only; if this be its appropriate part, then the jurisdiction of the nation cannot extend to a murder committed by a british sailor, on board a british frigate navigating the high seas under a commission from his britannic majesty. as a further illustration of the principle contended for, suppose a contract made at sea, and a suit instituted for the recovery of money which might be due thereon. by the laws of what nation would the contract be governed? the principle is general that a personal contract follows the person, but is governed by the law of the place where it is formed. by what law then would such a contract be governed? if all nations had jurisdiction over the place, then the laws of all nations would equally influence the contract; but certainly no man will hesitate to admit that such a contract ought to be decided according to the laws of that nation to which the vessel or contracting parties might belong. suppose a duel, attended with death, in the fleet of a foreign nation, or in any vessel which returned safe to port, could it be pretended that any government on earth, other than that to which the fleet or vessel belonged, had jurisdiction in the case; or that the offender could be tried by the laws or tribunals of any other nation whatever? suppose a private theft by one mariner, from another, and the vessel to perform its voyage and return in safety, would it be contended that all nations have equal cognizance of the crime, and are equally authorized to punish it? if there be this common jurisdiction at sea, why not punish desertion from one belligerent power to another, or correspondence with the enemy, or any other crime which may be perpetrated? a common jurisdiction over all offences at sea, in whatever vessel committed, would involve the power of punishing the offences which have been stated. yet all gentlemen will disclaim this power. it follows, then, that no such common jurisdiction exists. in truth the right of every nation to punish is limited, in its nature, to offences against the nation inflicting the punishment. this principle is believed to be universally true. it comprehends every possible violation of its laws on its own territory, and it extends to violations committed elsewhere by persons it has a right to bind. it extends also to general piracy. a pirate, under the law of nations, is an enemy of the human race. being the enemy of all, he is liable to be punished by all. any act which denotes this universal hostility, is an act of piracy. not only an actual robbery, therefore, but cruising on the high seas without commission, and with intent to rob, is piracy. this is an offence against all and every nation, and is therefore alike punishable by all. but an offence which in its nature affects only a particular nation, is only punishable by that nation. it is by confounding general piracy with piracy by statute, that indistinct ideas have been produced, respecting the power to punish offences committed on the high seas. a statute may make any offence piracy, committed within the jurisdiction of the nation passing the statute, and such offence will be punishable by that nation. but piracy under the law of nations, which alone is punishable by all nations, can only consist in an act which is an offence against all. no particular nation can increase or diminish the list of offences thus punishable. it has been observed by his colleague, (mr. nicholas,) for the purpose of showing that the distinction taken on this subject by the gentleman from delaware (mr. bayard) was inaccurate, that any vessel robbed on the high seas could be the property only of a single nation, and being only an offence against that nation, could be, on the principle taken by the opposers of the resolutions, no offence against the law of nations; but in this his colleague had not accurately considered the principle. as a man who turns out to rob on the highway, and forces from a stranger his purse with a pistol at his bosom, is not the particular enemy of that stranger, but alike the enemy of every man who carries a purse, so those who without a commission rob on the high seas, manifest a temper hostile to all nations, and therefore become the enemies of all. the same inducements which occasion the robbery of one vessel, exist to occasion the robbery of others, and therefore the single offence is an offence against the whole community of nations, manifests a temper hostile to all, is the commencement of an attack on all, and is consequently, of right, punishable by all. his colleague had also contended that all the offences at sea, punishable by the british statutes from which the act of congress was in a great degree copied, were piracies at common law, or by the law of nations, and as murder is among these, consequently murder was an act of piracy by the law of nations, and therefore punishable by every nation. in support of this position he had cited _hawk. p. c._ . - , _inst._ , and _woodeson_, . the amount of these cases is, that no new offence is made piracy by the statutes; but that a different tribunal is created for their trial, which is guided by a different rule from that which governed previous to those statutes. therefore, on an indictment for piracy, it is still necessary to prove an offence which was piracy before the statutes. he drew from these authorities a very different conclusion from that which had been drawn by his colleague. to show the correctness of his conclusion, it was necessary to observe, that the statute did not indeed change the nature of piracy, since it only transferred the trial of the crime to a different tribunal, where different rules of decision prevailed; but having done this, other crimes committed on the high seas, which were not piracy, were made punishable by the same tribunal; but certainly this municipal regulation could not be considered as proving that those offences were, before, piracy by the law of nations. [mr. nicholas insisted that the law was not correctly stated, whereupon mr. marshall called for _inst._ and read the statute:] "all treasons, felonies, robberies, murders, and confederacies, committed in or upon the seas, &c., shall be inquired, tried, heard, determined and judged in such shires, &c., in like form and condition as if any such offence had been committed on the land," &c. "and such as shall be convicted, &c., shall have and suffer such pains of death, &c., as if they had been attainted of any treason, felony, robbery, or other the said offences done upon the land." this statute, it is certain, does not change the nature of piracy; but all treasons, felonies, robberies, murders, and confederacies, committed in or upon the sea, are not declared to have been, nor are they piracies. if a man be indicted as a pirate, the offence must be shown to have been piracy before the statute; but if he be indicted for treason, felony, robbery, murder, or confederacy, committed at sea, whether such offence was or was not a piracy, he shall be punished in like manner as if he had committed the same offence on land. the passage cited from _woodeson_, , is a full authority to this point. having stated that offences committed at sea were formerly triable before the lord high admiral, according to the course of the roman civil law, _woodeson_ says: "but, by the statutes h. . c. , and h. . c. , all treasons, felonies, piracies, and other crimes committed on the sea, or where the admiral has jurisdiction, shall be tried in the realm as if done on land. but the statutes referred to affect only the manner of the trial as far as respects piracy. the nature of the offence is not changed. whether a charge amount to piracy or not, must still depend on the law of nations, except where, in the case of british subjects, express acts of parliament have declared that the crimes therein specified shall be adjudged piracy, or shall be liable to the same mode of trial and degree of punishment." this passage proves not only that all offences at sea are not piracies by the law of nations, but also that all indictments for piracy must depend on the law of nations, "except where, in the case of british subjects, express acts of parliament" have changed the law. why do not these "express acts of parliament" change the law as to others than "british subjects?" the words are general, "all treasons, felonies, &c." why are they confined in construction to british subjects? the answer is a plain one: the jurisdiction of the nation is confined to its territory and to its own subjects. the gentleman from pennsylvania (mr. gallatin) abandons, and very properly abandons, this untenable ground. he admits that no nation has a right to punish offences against another nation, and that the united states can only punish offences against their own laws and the law of nations. he admits, too, that if there had only been a mutiny (and consequently if there had only been a murder) on board the hermione, that the american courts could have taken no cognizance of the crime. yet mutiny is punishable as piracy by the law of both nations. that gentleman contends that the act committed by nash was piracy, according to the law of nations. he supports his position by insisting that the offence may be constituted by the commission of a single act: that unauthorized robbery on the high seas is this act, and that the crew having seized the vessel, and being out of the protection of any nation, were pirates. it is true that the offence may be completed by a single act; but it depends on the nature of that act. if it be such as manifests generally hostility against the world--an intention to rob generally, then it is piracy; but if it be merely a mutiny and murder in a vessel, for the purpose of delivering it up to the enemy, it seems to be an offence against a single nation and not to be piracy. the sole object of the crew might be to go over to the enemy, or to free themselves from the tyranny experienced on board a ship-of-war, and not to rob generally. but, should it even be true that running away with a vessel to deliver her up to an enemy was an act of general piracy, punishable by all nations, yet the mutiny and murder was a distinct offence. had the attempt to seize the vessel failed, after the commission of the murder, then, according to the argument of the gentleman from pennsylvania, the american courts could have taken no cognizance of the crime. whatever then might have been the law respecting the piracy, of the murder there was no jurisdiction. for the murder, not the piracy, nash was delivered up. murder, and not piracy, is comprehended in the th article of the treaty between the two nations. had he been tried then and acquitted on an indictment for the piracy, he must still have been delivered up for the murder, of which the court could have no jurisdiction. it is certain that an acquittal of the piracy would not have discharged the murder; and, therefore, in the so much relied on trials at trenton, a separate indictment for murder was filed after an indictment for piracy. since, then, if acquitted for piracy, he must have been delivered to the british government on the charge of murder, the president of the united states might, very properly, without prosecuting for the piracy, direct him to be delivered up on the murder. all the gentlemen who have spoken in support of the resolutions, have contended that the case of thomas nash is within the purview of the act of congress, which relates to this subject, and is by that act made punishable in the american courts. that is, that the act of congress designed to punish crimes committed on board a british frigate. nothing can be more completely demonstrable than the untruth of this proposition. it has already been shown that the legislative jurisdiction of a nation extends only to its own territory, and to its own citizens, wherever they may be. any general expression in a legislative act must, necessarily, be restrained to objects within the jurisdiction of the legislature passing the act. of consequence an act of congress can only be construed to apply to the territory of the united states, comprehending every person within it, and to the citizens of the united states. but, independent of this undeniable truth, the act itself affords complete testimony of its intention and extent. (_see laws of the united states_, vol. i. p. .) the title is: "an act for the punishment of certain crimes against the united states." not against britain, france, or the world, but singly "against the united states." the first section relates to treason, and its objects are, "any person or persons owing allegiance to the united states." this description comprehends only the citizens of the united states, and such others as may be on its territory or in its service. the second section relates to misprision of treason; and declares, without limitation, that any person or persons, having knowledge of any treason, and not communicating the same, shall be guilty of that crime. here then is an instance of that limited description of persons in one section, and of that general description in another, which has been relied on to support the construction contended for by the friends of the resolutions. but will it be pretended that a person can commit misprision of treason who cannot commit treason itself? that he would be punishable for concealing a treason who could not be punished for plotting it? or, can it be supposed that the act designed to punish an englishman or a frenchman, who, residing in his own country, should have knowledge of treasons against the united states, and should not cross the atlantic to reveal them? the same observations apply to the sixth section, which makes any "person or persons" guilty of misprision of felony, who, having knowledge of murder or other offences enumerated in that section, should conceal them. it is impossible to apply this to a foreigner, in a foreign land, or to any person not owing allegiance to the united states. the eighth section, which is supposed to comprehend the case, after declaring that if any "person or persons" shall commit murder on the high seas, he shall be punishable with death, proceeds to say, that if any captain or mariner shall piratically run away with a ship or vessel, or yield her up voluntarily to a pirate, or if any seaman shall lay violent hands on his commander, to prevent his fighting, or shall make a revolt in the ship, every such offender shall be adjudged a pirate and a felon. the persons who are the objects of this section of the act are all described in general terms, which might embrace the subjects of all nations. but is it to be supposed that, if in an engagement between an english and a french ship-of-war, the crew of the one or the other should lay violent hands on the captain and force him to strike, that this would be an offence against the act of congress, punishable in the courts of the united states? on this extended construction of the general terms of the section, not only the crew of one of the foreign vessels forcing their captain to surrender to another, would incur the penalties of the act, but, if in the late action between the gallant truxton and the french frigate, the crew of that frigate had compelled the captain to surrender, while he was unwilling to do so, they would have been indictable as felons in the courts of the united states. but surely the act of congress admits of no such extravagant construction. his colleague, mr. m. said, had cited and particularly relied on the ninth section of the act; that section declares, that if a citizen shall commit any of the enumerated piracies, or any acts of hostility, on the high seas, against the united states, under color of a commission from any foreign prince or state, he shall be adjudged a pirate, felon, and robber, and shall suffer death. this section is only a positive extension of the act to a case which might otherwise have escaped punishment. it takes away the protection of a foreign commission from an american citizen, who, on the high seas, robs his countrymen. this is no exception from any preceding part of the law, because there is no part which relates to the conduct of vessels commissioned by a foreign power; it only proves that, in the opinion of the legislature, the penalties of the act could not, without this express provision, have been incurred by a citizen holding a foreign commission. it is most certain, then, that the act of congress does not comprehend the case of a murder committed on board a foreign ship-of-war. the gentleman from new york has cited _woodeson_, , to show that the courts of england extend their jurisdiction to piracies committed by the subjects of foreign nations. this has not been doubted. the case from woodeson is a case of robberies committed on the high seas by a vessel without authority. there are ordinary acts of piracy which, as has been already stated, being offences against all nations, are punishable by all. the case from _woodeson_, and the note cited from the same book by the gentleman from delaware, are strong authorities against the doctrines contended for by the friends of the resolutions. it has also been contended that the question of jurisdiction was decided at trenton, by receiving indictments against persons there arraigned for the same offence, and by retaining them for trial after the return of the habeas corpus. every person in the slightest degree acquainted with judicial proceedings, knows that an indictment is no evidence of jurisdiction; and that, in criminal cases, the question of jurisdiction will seldom be made but by arrest of judgment after conviction. the proceedings, after the return of the habeas corpus, only prove that the case was not such a case as to induce the judge immediately to decide against his jurisdiction. the question was not free from doubt, and, therefore, might very properly be postponed until its decision should become necessary. it has been argued by the gentleman from new york, that the form of the indictment is, itself, evidence of a power in the court to try the case. every word of that indictment, said the gentleman, gives the lie to a denial of the jurisdiction of the court. it would be assuming a very extraordinary principle, indeed, to say that words inserted in an indictment for the express purpose of assuming the jurisdiction of a court, should be admitted to prove that jurisdiction. the question certainly depended on the nature of the fact, and not on the description of the fact. but as an indictment must necessarily contain formal words in order to be supported, and as forms often denote what a case must substantially be to authorize a court to take cognizance of it, some words in the indictments at trenton ought to be noticed. the indictments charge the persons to have been within the peace, and murder to have been committed against the peace, of the united states. these are necessary averments, and, to give the court jurisdiction, the fact ought to have accorded with them. but who will say that the crew of a british frigate on the high seas, are within the peace of the united states? or a murder committed on board such a frigate, against the peace of any other than the british government? it is, then, demonstrated that the murder with which thomas nash was charged, was not committed within the jurisdiction of the united states, and, consequently, that the case stated was completely within the letter and the spirit of the twenty-seventh article of the treaty between the two nations. if the necessary evidence was produced, he ought to have been delivered up to justice. it was an act to which the american nation was bound by a most solemn compact. to have tried him for the murder would have been mere mockery. to have condemned and executed him, the court having no jurisdiction, would have been murder. to have acquitted and discharged him would have been a breach of faith, and a violation of national duty. but it has been contended that, although thomas nash ought to have been delivered up to the british minister, on the requisition made by him in the name of his government, yet, the interference of the president was improper. this, mr. m. said, led to his second proposition, which was: that the case was a case for executive and not judicial decision. he admitted implicitly the division of powers, stated by the gentleman from new york, and that it was the duty of each department to resist the encroachments of the others. this being established, the inquiry was, to what department was the power in question allotted? the gentleman from new york had relied on the second section of the third article of the constitution, which enumerates the cases to which the judicial power of the united states extends, as expressly including that now under consideration. before he examined that section, it would not be improper to notice a very material misstatement of it made in the resolutions, offered by the gentleman from new york. by the constitution, the judicial power of the united states is extended to all cases in law and equity, arising under the constitution, laws, and treaties of the united states; but the resolutions declare that judicial power to extend to all questions arising under the constitution, treaties, and laws of the united states. the difference between the constitution and resolutions was material and apparent. a case in law or equity was a term well understood, and of limited signification. it was a controversy between parties which had taken a shape for judicial decision. if the judicial power extended to every question under the constitution, it would involve almost every subject proper for legislative discussion and decision; if, to every question under the laws and treaties of the united states, it would involve almost every subject on which the executive could act. the division of power which the gentleman had stated, could exist no longer, and the other departments would be swallowed up by the judiciary. but it was apparent that the resolutions had essentially misrepresented the constitution. he did not charge the gentleman from new york with intentional misrepresentation; he would not attribute to him such an artifice in any case, much less in a case where detection was so easy and so certain. yet this substantial departure from the constitution, in resolutions affecting substantially to unite it, was not less worthy of remark for being unintentional. it manifested the course of reasoning by which the gentleman had himself been misled, and his judgment betrayed into the opinions those resolutions expressed. by extending the judicial power to all cases in law and equity, the constitution had never been understood to confer on that department any political power whatever. to come within this description, a question must assume a legal form for forensic litigation and judicial decision. there must be parties to come into court, who can be reached by its process, and bound by its power; whose rights admit of ultimate decision by a tribunal to which they are bound to submit. a case in law or equity proper for judicial decision may arise under a treaty, where the rights of individuals acquired or secured by a treaty are to be asserted or defended in court. as under the fourth or sixth article of the treaty of peace with great britain, or under those articles of our late treaties with france, prussia, and other nations, which secure to the subjects of those nations their property within the united states; or, as would be an article, which, instead of stipulating to deliver up an offender, should stipulate his punishment, provided the case was punishable by the laws and in the courts of the united states. but the judicial power cannot extend to political compacts; as the establishment of the boundary line between the american and british dominions; the case of the late guarantee in our treaty with france, or the case of the delivery of a murderer under the twenty-seventh article of our present treaty with britain. the gentleman from new york has asked, triumphantly asked, what power exists in our courts to deliver up an individual to a foreign government? permit me, said mr. m., but not triumphantly, to retort the question. by what authority can any court render such a judgment? what power does a court possess to seize any individual and determine that he shall be adjudged by a foreign tribunal? surely our courts possess no such power, yet they must possess it, if this article of the treaty is to be executed by the courts. gentlemen have cited and relied on that clause in the constitution, which enables congress to define and punish piracies and felonies committed on the high seas, and offences against the law of nations; together with an act of congress declaring the punishment of those offences; as transferring the whole subject to the courts. but that clause can never be construed to make to the government a grant of power, which the people making it do not themselves possess. it has already been shown that the people of the united states have no jurisdiction over offences committed on board a foreign ship against a foreign nation. of consequence, in framing a government for themselves, they cannot have passed this jurisdiction to that government. the law, therefore, cannot act upon the case. but this clause of the constitution cannot be considered, and need not be considered, as affecting acts which are piracy under the law of nations. as the judicial power of the united states extends to all cases of admiralty and maritime jurisdiction, and piracy under the law of nations is of admiralty and maritime jurisdiction, punishable by every nation, the judicial power of the united states of course extends to it. on this principle the courts of admiralty under the confederation took cognizance of piracy, although there was no express power in congress to define and punish the offence. but the extension of the judicial power of the united states to all cases of admiralty and maritime jurisdiction must necessarily be understood with some limitation. all cases of admiralty and maritime jurisdiction which, from their nature, are triable in the united states, are submitted to the jurisdiction of the courts of the united states. there are cases of piracy by the law of nations, and cases within the legislative jurisdiction of the nation; the people of america possessed no other power over the subject, and could consequently transfer no other to their courts; and it has already been proved that a murder committed on board a foreign ship-of-war is not comprehended within this description. the consular convention with france, has also been relied on, as proving the act of delivering up an individual to a foreign power to be in its nature judicial and not executive. the ninth article of that convention authorizes the consuls and vice consuls of either nation to cause to be arrested all deserters from their vessel, "for which purpose the said consuls and vice consuls shall address themselves to the courts, judges, and officers competent." this article of the convention does not, like the th article of the treaty with britain, stipulate a national act, to be performed on the demand of a nation; it only authorizes a foreign minister to cause an act to be done, and prescribes the course he is to pursue. the contract itself is, that the act shall be performed by the agency of the foreign consul, through the medium of the courts; but this affords no evidence that a contract of a very different nature is to be performed in the same manner. it is said that the then president of the united states declared the incompetency of the courts, judges, and officers, to execute this contract without an act of the legislature. but the then president made no such declaration. he has said that some legislative provision is requisite to carry the stipulations of the convention into full effect. this, however, is by no means declaring the incompetency of a department to perform an act stipulated by treaty, until the legislative authority shall direct its performance. it has been contended that the conduct of the executive on former occasions, similar to this in principle, has been such as to evince an opinion, even in that department, that the case in question is proper for the decision of the courts. the fact adduced to support this argument is the determination of the late president on the case of prizes made within the jurisdiction of the united states, or by privateers fitted out in their ports. the nation was bound to deliver up those prizes in like manner as the nation is now bound to deliver up an individual demanded under the th article of the treaty with britain. the duty was the same, and devolved on the same department. in quoting the decision of the executive on that case, the gentleman from new york has taken occasion to bestow a high encomium on the late president; and to consider his conduct as furnishing an example worthy the imitation of his successor. it must be the cause of much delight to the real friends of that great man; to those who supported his administration while in office from a conviction of its wisdom and its virtue, to hear the unqualified praise which is now bestowed on it by those who had been supposed to possess different opinions. if the measure now under consideration shall be found, on examination, to be the same in principle with that which has been cited, by its opponents, as a fit precedent for it, then may the friends of the gentleman now in office indulge the hope, that when he, like his predecessor, shall be no more, his conduct too may be quoted as an example for the government of his successors. the evidence relied on to prove the opinion of the then executive on the case, consists of two letters from the secretary of state, the one of the th of june, , to mr. genet, and the other of the th of august, , to mr. morris. in the letter to mr. genet, the secretary says, that the claimant having filed his libel against the ship william, in the court of admiralty, there was no power which could take the vessel out of court until it had decided against its own jurisdiction; that having so decided, the complaint is lodged with the executive, and he asks for evidence, to enable that department to consider and decide finally on the subject. it will be difficult to find in this letter an executive opinion, that the case was not a case for executive decision. the contrary is clearly avowed. it is true, that when an individual, claiming the property as his, had asserted that claim in court, the executive acknowledges in itself a want of power to dismiss or decide upon the claim thus pending in court. but this argues no opinion of a want of power in itself to decide upon the case, if, instead of being carried before a court as an individual claim, it is brought before the executive as a national demand. a private suit instituted by an individual, asserting his claim to property, can only be controlled by that individual. the executive can give no direction concerning it. but a public prosecution carried on in the name of the united states can, without impropriety, be dismissed at the will of the government. the opinion, therefore, given in this letter, is unquestionably correct; but it is certainly misunderstood, when it is considered as being an opinion that the question was not in its nature a question for executive decision. in the letter to mr. morris, the secretary asserts the principle, that vessels taken within our jurisdiction ought to be restored, but says, it is yet unsettled whether the act of restoration is to be performed by the executive or judicial department. the principle, then, according to this letter, is not submitted to the court--whether a vessel captured within a given distance of the american coast, was or was not captured within the jurisdiction of the united states, was a question not to be determined by the courts, but by the executive. the doubt expressed is not what tribunal shall settle the principle, but what tribunal shall settle the fact. in this respect, a doubt might exist in the case of prizes, which could not exist in the case of a man. individuals on each side claimed the property, and therefore their rights could be brought into court, and there contested as a case in law or equity. the demand of a man made by a nation stands on different principles. having noticed the particular letters cited by the gentleman from new york, permit me now, said mr. m., to ask the attention of the house to the whole course of executive conduct on this interesting subject. it is first mentioned in a letter from the secretary of state to mr. genet, of the th of june, . in that letter, the secretary states a consultation between himself and the secretaries of the treasury and war, (the president being absent,) in which (so well were they assured of the president's way of thinking in those cases) it was determined that the vessels should be detained in the custody of the consuls, in the ports, until the government of the united states shall be able to inquire into and decide on the fact. in his letter of the th of july, , the secretary writes, the president has determined to refer the questions concerning prizes "to persons learned in the laws," and he requests that certain vessels enumerated in the letter should not depart "until his ultimate determination shall be made known." in his letter of the th of august, , the secretary informs mr. genet that the president considers the united states as bound "to effectuate the restoration of, or to make compensation for, prizes which shall have been made of any of the parties at war with france, subsequent to the th day of june last, by privateers fitted out of our ports." that it is consequently expected that mr. genet will cause restitution of such prizes to be made, and that the united states "will cause restitution" to be made "of all such prizes as shall be hereafter brought within their ports by any of the said privateers." in his letter of the th of november, , the secretary informs mr. genet, that for the purpose of obtaining testimony to ascertain the fact of capture within the jurisdiction of the united states, the governors of the several states were requested, on receiving any such claim, immediately to notify thereof the attorneys of their several districts, whose duty it would be to give notice "to the principal agent of both parties, and also to the consuls of the nations interested; and to recommend to them to appoint by mutual consent arbiters to decide whether the capture was made within the jurisdiction of the united states, as stated in my letter of the th inst., according to whose award the governor may proceed to deliver the vessel to the one or the other party." "if either party refuse to name arbiters, then the attorney is to take depositions on notice, which he is to transmit for the information and decision of the president." "this prompt procedure is the more to be insisted on, as it will enable the president, by an immediate delivery of the vessel and cargo to the party having title, to prevent the injuries consequent on long delay." in his letter of the d of november, , the secretary repeats, in substance, his letter of the th of july and th of august, and says that the determination to deliver up certain vessels, involved the brig jane, of dublin, the brig lovely lass, and the brig prince william henry. he concludes with saying: "i have it in charge to inquire of you, sir, whether these three brigs have been given up according to the determination of the president, and if they have not, to repeat the requisition that they may be given up to their former owners." ultimately it was settled that the fact should be investigated in the courts, but the decision was regulated by the principles established by the executive department. the decision, then, on the case of vessels captured within the american jurisdiction, by privateers fitted out of the american ports, which the gentleman from new york has cited with such merited approbation; which he has declared to stand on the same principles with those which ought to have governed the case of thomas nash; and which deserves the more respect, because the government of the united states was then so circumstanced as to assure us that no opinion was lightly taken up, and no resolution formed but on mature consideration; this decision, quoted as a precedent and pronounced to be right, is found, on fair and full examination, to be precisely and unequivocally the same with that which was made in the case under consideration. it is a full authority to show that, in the opinion always held by the american government, a case like that of thomas nash is a case for executive and not judicial decision. the clause in the constitution which declares that "the trial of all crimes, except in cases of impeachment, shall be by jury," has also been relied on as operating on the case, and transferring the decision on a demand for the delivery of an individual from the executive to the judicial department. but certainly this clause in the constitution of the united states cannot be thought obligatory on, and for the benefit of, the whole world. it is not designed to secure the rights of the people of europe and asia, or to direct and control proceedings against criminals throughout the universe. it can then be designed only to guide the proceedings of our own courts, and to prescribe the mode of punishing offences committed against the government of the united states, and to which the jurisdiction of the nation may rightfully extend. it has already been shown that the courts of the united states were incapable of trying the crime for which thomas nash was delivered up to justice. the question to be determined was, not how his crime should be tried and punished, but whether he should be delivered up to a foreign tribunal, which was alone capable of trying and punishing him. a provision for the trial of crimes in the courts of the united states is clearly not a provision for the performance of a national compact for the surrender to a foreign government of an offender against that government. the clause of the constitution declaring that the trial of all crimes shall be by jury, has never even been construed to extend to the trial of crimes committed in the land and naval forces of the united states. had such a construction prevailed, it would most probably have prostrated the constitution itself, with the liberties and the independence of the nation, before the first disciplined invader who should approach our shores. necessity would have imperiously demanded the review and amendment of so unwise a provision. if, then, this clause does not extend to offences committed in the fleets and armies of the united states, how can it be construed to extend to offences committed in the fleets and armies of britain or of france, or of the ottoman or russian empires? the same argument applies to the observations on the seventh article of the amendments to the constitution. that article relates only to trials in the courts of the united states, and not to the performance of a contract for the delivery of a murderer not triable in those courts. in this part of the argument, the gentleman from new york has presented a dilemma, of a very wonderful structure indeed. he says that the offence of thomas nash was either a crime or not a crime. if it was a crime, the constitutional mode of punishment ought to have been observed; if it was not a crime, he ought not to have been delivered up to a foreign government, where his punishment was inevitable. it had escaped the observation of that gentleman, that if the murder committed by thomas nash was a crime, yet it was not a crime provided for by the constitution, or triable in the courts of the united states; and that if it was not a crime, yet it is the precise case in which his surrender was stipulated by treaty. of this extraordinary dilemma, then, the gentleman from new york is, himself, perfectly at liberty to retain either horn. he has chosen to consider it as a crime, and says it has been made a crime by treaty, and is punished by sending the offender out of the country. the gentleman is incorrect in every part of his statement. murder on board a british frigate is not a crime created by treaty. it would have been a crime of precisely the same magnitude had the treaty never been formed. it is not punished by sending the offender out of the united states. the experience of this unfortunate criminal, who was hung and gibbeted, evinced to him that the punishment of his crime was of a much more serious nature than mere banishment from the united states. the gentleman from pennsylvania and the gentleman from virginia have both contended that this was a case proper for the decision of the courts, because points of law occurred, and points of law must have been decided in its determination. the points of law which must have been decided, are stated by the gentleman from pennsylvania to be, first, a question whether the offence was committed within the british jurisdiction; and, secondly, whether the crime charged was comprehended within the treaty. it is true, sir, these points of law must have occurred, and must have been decided; but it by no means follows that they could only have been decided in court. a variety of legal questions must present themselves in the performance of every part of executive duty, but these questions are not therefore to be decided in court. whether a patent for land shall issue or not is always a question of law, but not a question which must necessarily be carried into court. the gentleman from pennsylvania seems to have permitted himself to have been misled by the misrepresentation of the constitution, made in the resolutions of the gentleman from new york; and, in consequence of being so misled, his observations have the appearance of endeavoring to fit the constitution to his arguments, instead of adapting his arguments to the constitution. when the gentleman has proved that these are questions of law, and that they must have been decided by the president, he has not advanced a single step towards proving that they were improper for executive decision. the question whether vessels captured within three miles of the american coast, or by privateers fitted out in the american ports, were legally captured or not, and whether the american government was bound to restore them, if in its power, were questions of law; but they were questions of political law, proper to be decided, and they were decided by the executive, and not by the courts. the _casus foederis_ of the guarantee was a question of law, but no man could have hazarded the opinion that such a question must be carried into court, and can only be there decided. so the _casus foederis_, under the twenty-seventh article of the treaty with great britain, is a question of law, but of political law. the question to be decided is, whether the particular case proposed be one in which the nation has bound itself to act, and this is a question depending on principles never submitted to courts. if a murder should be committed within the united states, and the murderer should seek an asylum in britain, the question whether the _casus foederis_ of the twenty-seventh article had occurred, so that his delivery ought to be demanded, would be a question of law, but no man would say it was a question which ought to be decided in the courts. when, therefore, the gentleman from pennsylvania has established, that in delivering up thomas nash, points of law were decided by the president, he has established a position which in no degree whatever aids his argument. the case was in its nature a national demand made upon the nation. the parties were the two nations. they cannot come into court to litigate their claims, nor can a court decide on them. of consequence, the demand is not a case for judicial cognizance. the president is the sole organ of the nation in its external relations, and its sole representative with foreign nations. of consequence, the demand of a foreign nation can only be made on him. he possesses the whole executive power. he holds and directs the force of the nation. of consequence, any act to be performed by the force of the nation is to be performed through him. he is charged to execute the laws. a treaty is declared to be a law. he must then execute a treaty, where he, and he alone, possesses the means of executing it. the treaty, which is a law, enjoins the performance of a particular object. the person who is to perform this object is marked out by the constitution, since the person is named who conducts the foreign intercourse, and is to take care that the laws be faithfully executed. the means by which it is to be performed, the force of the nation, are in the hands of this person. ought not this person to perform the object, although the particular mode of using the means has not been prescribed? congress, unquestionably, may prescribe the mode, and congress may devolve on others the whole execution of the contract; but, till this be done, it seems the duty of the executive department to execute the contract by any means it possesses. the gentleman from pennsylvania contends that, although this should be properly an executive duty, yet it cannot be performed until congress shall direct the mode of performance. he says that, although the jurisdiction of the courts is extended by the constitution to all cases of admiralty and maritime jurisdiction, yet if the courts had been created without any express assignment of jurisdiction, they could not have taken cognizance of cases expressly allotted to them by the constitution. the executive, he says, can, no more than courts, supply a legislative omission. it is not admitted that, in the case stated, courts could not have taken jurisdiction. the contrary is believed to have been the correct opinion. and although the executive cannot supply a total legislative omission, yet it is not admitted or believed that there is such a total omission in this case. the treaty, stipulating that a murderer shall be delivered up to justice, is as obligatory as an act of congress making the same declaration. if, then, there was an act of congress in the words of the treaty, declaring that a person who had committed murder within the jurisdiction of britain, and sought an asylum within the territory of the united states, should be delivered up by the united states, on the demand of his britannic majesty, and such evidence of his criminality, as would have justified his commitment for trial, had the offence been here committed; could the president, who is bound to execute the laws, have justified the refusal to deliver up the criminal, by saying, that the legislature had totally omitted to provide for the case. the executive is not only the constitutional department, but seems to be the proper department to which the power in question may most wisely and most safely be confided. the department which is intrusted with the whole foreign intercourse of the nation, with the negotiation of all its treaties, with the power of demanding a reciprocal performance of the article, which is accountable to the nation for the violation of its engagements with foreign nations, and for the consequences resulting from such violation, seems the proper department to be intrusted with the execution of a national contract like that under consideration. if, at any time, policy may temper the strict execution of the contract, where may that political discretion be placed so safely as in the department whose duty it is to understand precisely the state of the political intercourse and connection between the united states and foreign nations, to understand the manner in which the particular stipulation is explained and performed by foreign nations, and to understand completely the state of the union? this department, too, independent of judicial aid, which may, perhaps, in some instances, be called in, is furnished with a great law officer, whose duty it is to understand and to advise when the _casus foederis_ occurs. and if the president should cause to be arrested under the treaty an individual who was so circumstanced as not to be properly the object of such an arrest, he may perhaps bring the question of the legality of his arrest before a judge, by a writ of habeas corpus. it is then demonstrated, that, according to the principles of the american government, the question whether the nation has or has not bound itself to deliver up any individual, charged with having committed murder or forgery within the jurisdiction of britain, is a question the power to decide which rests alone with the executive department. it remains to inquire whether, in exercising this power, and in performing the duty it enjoins, the president has committed an unauthorized and dangerous interference with judicial decisions. that thomas nash was committed originally at the instance of the british consul at charleston, not for trial in the american courts, but for the purpose of being delivered up to justice in conformity with the treaty between the two nations, has been already so ably argued by the gentleman from delaware, that nothing further can be added to that point. he would therefore, mr. marshall said, consider the case as if nash had been delivered up instead of having been committed for trial. admitting even this to have been the fact, the conclusions which have been drawn from it were by no means warranted. gentlemen had considered it as an offence against judicial authority, and a violation of judicial rights, to withdraw from their sentence a criminal against whom a prosecution had been commenced. they had treated the subject as if it was the privilege of courts to condemn to death the guilty wretch arraigned at their bar, and that to intercept the judgment was to violate the privilege. nothing can be more incorrect than this view of the case. it is not the privilege, it is the sad duty of courts to administer criminal judgment. it is a duty to be performed at the demand of the nation, and with which the nation has a right to dispense. if judgment of death is to be pronounced, it must be at the prosecution of the nation, and the nation may at will stop that prosecution. in this respect the president expresses constitutionally the will of the nation; and may rightfully, as was done in the case at trenton, enter a _nolle prosequi_, or direct that the criminal be prosecuted no farther. this is no interference with judicial decisions, nor any invasion of the province of a court. it is the exercise of an indubitable and a constitutional power. had the president directed the judge of charleston to decide for or against his own jurisdiction, to condemn or acquit the prisoner, this would have been a dangerous interference with judicial decisions, and ought to have been resisted. but no such direction has been given, nor any such decision been required. if the president determined that thomas nash ought to have been delivered up to the british government for a murder committed on board a british frigate, provided evidence of the fact was adduced, it was a question which duty obliged him to determine, and which he determined rightly. if, in consequence of this determination, he arrested the proceedings of a court on a national prosecution, he had a right to arrest and to stop them, and the exercise of this right was a necessary consequence of the determination of the principal question. in conforming to this decision, the court has left open the question of its jurisdiction. should another prosecution of the same sort be commenced, which should not be suspended but continued by the executive, the case of thomas nash would not bind as a precedent against the jurisdiction of the court. if it should even prove that, in the opinion of the executive, a murder committed on board a foreign fleet was not within the jurisdiction of the court, it would prove nothing more; and though this opinion might rightfully induce the executive to exercise his power over the prosecution, yet if the prosecution was continued, it would have no influence with the court in deciding on its jurisdiction. taking the fact, then, even to be as the gentlemen in support of the resolutions would state it, the fact cannot avail them. it is to be remembered, too, that in the case stated to the president, the judge himself appears to have considered it as proper for executive decision, and to have wished that decision. the president and judge seem to have entertained, on this subject, the same opinion, and in consequence of the opinion of the judge, the application was made to the president. it has then been demonstrated-- st. that the case of thomas nash, as stated to the president, was completely within the twenty-seventh article of the treaty between the united states and great britain. d. that this question was proper for executive, and not for judicial decision; and, d. that in deciding it, the president is not chargeable with an interference with judicial decisions. after trespassing so long, mr. marshall said, on the patience of the house, in arguing what had appeared to him to be the material points growing out of the resolutions, he regretted the necessity of detaining them still longer for the purpose of noticing an observation which appeared not to be considered by the gentleman who made it as belonging to the argument. the subject introduced by this observation, however, was so calculated to interest the public feelings, that he must be excused for stating his opinion on it. the gentleman from pennsylvania had said that an impressed american seaman, who should commit homicide for the purpose of liberating himself from the vessel in which he was confined, ought not to be given up as a murderer. in this, mr. m. said, he concurred entirely with that gentleman. he believed the opinion to be unquestionably correct, as were the reasons that gentleman had given in support of it. he had never heard any american avow a contrary sentiment, nor did he believe a contrary sentiment could find a place in the bosom of an american. he could not pretend, and did not pretend to know the opinion of the executive on this subject, because he had never heard the opinions of that department; but he felt the most perfect conviction, founded on the general conduct of the government, that it could never surrender an impressed american to the nation which, in making the impressment, had committed a national injury. this belief was in no degree shaken by the conduct of the executive in this particular case. in his own mind, it was a sufficient defence of the president from an imputation of this kind, that the fact of thomas nash being an impressed american, was obviously not contemplated by him in the decision he made on the principles of the case. consequently, if a new circumstance occurred, which would essentially change the case decided by the president, the judge ought not to have acted under that decision, but the new circumstance ought to have been stated. satisfactory as this defence might appear, he should not resort to it, because to some it might seem a subterfuge. he defended the conduct of the president on other and still stronger ground. the president had decided that a murder committed on board a british frigate on the high seas, was within the jurisdiction of that nation, and consequently within the twenty-seventh article of its treaty with the united states. he therefore directed thomas nash to be delivered to the british minister, if satisfactory evidence of the murder should be adduced. the sufficiency of the evidence was submitted entirely to the judge. if thomas nash had committed a murder, the decision was that he should be surrendered to the british minister; but if he had not committed a murder, he was not to be surrendered. had thomas nash been an impressed american, the homicide on board the hermione would, most certainly, not have been a murder. the act of impressing an american, is an act of lawless violence. the confinement on board a vessel, is a continuation of the violence, and an additional outrage. death committed within the united states, in resisting such violence, would not have been murder, and the person giving the wound could not have been treated as a murderer. thomas nash was only to have been delivered up to justice on such evidence as, had the fact been committed within the united states, would have been sufficient to have induced his commitment and trial for murder. of consequence, the decision of the president was so expressed, as to exclude the case of an impressed american liberating himself by homicide. he concluded with observing, that he had already too long availed himself of the indulgence of the house, to venture farther on that indulgence by recapitulating or reinforcing the arguments which had already been urged. when mr. marshall had concluded, mr. dana rose and spoke against the resolutions. an adjournment was then called for and carried--yeas , nays . saturday, march . _case of jonathan robbins._ the house resumed the consideration of the report made on thursday last, by the committee of the whole house, to whom was referred the message of the president of the united states, of the seventh ultimo, containing their disagreement to the motion referred to them on the twentieth ultimo; and the said motion being read, in the words following, to wit: (see _ante_--mr. livingston's resolution, february .)[ ] mr. nicholas spoke in answer to mr. marshall. the question was then taken that the house do agree with the committee of the whole in their disagreement to the same, and resolved in the affirmative--yeas , nays , as follows: yeas.--willis alston, george baer, bailey bartlett, james a. bayard, john bird, john brown, william cooper, william craik, john davenport, franklin davenport, thomas t. davis, john dennis, george dent, joseph dickson, william edmond, thomas evans, abiel foster, dwight foster, jonathan freeman, henry glenn, samuel goode, chauncey goodrich, elizur goodrich, william gordon, edwin gray, roger griswold, william barry grove, robert goodloe harper, archibald henderson, william h. hill, james h. imlay, james jones, john wilkes kittera, henry lee, silas lee, samuel lyman, james linn, john marshall, abraham nott, harrison g. otis, robert page, josiah parker, thomas pinckney, jonas platt, leven powell, john read, john rutledge, jr., samuel sewall, james sheafe, william shepard, richard dobbs spaight, david stone, benjamin taliaferro, george thatcher, john chew thomas, richard thomas, joseph b. varnum, peleg wadsworth, robert waln, lemuel williams, and henry woods. nays.--theodorus bailey, phanuel bishop, robert brown, samuel j. cabell, gabriel christie, matthew clay, john condit, joseph eggleston, lucas elmendorph, john fowler, albert gallatin, andrew gregg, john a. hanna, joseph heister, david holmes, george jackson, aaron kitchell, michael leib, matthew lyon, edward livingston, nathaniel macon, peter muhlenberg, anthony new, john nicholas, joseph h. nicholson, john randolph, john smilie, john smith, samuel smith, thomas sumter, john thompson, abram trigg, john trigg, philip van cortlandt, and robert williams. a motion was made to adjourn. mr. macon hoped the house would sit and decide the resolution proposed by the gentleman from delaware, so as to have done with the business, and not to enter on another week with it; however, rising for the adjournment, it was carried. monday, march . _case of jonathan robbins._ mr. bayard moved that the committee of the whole house, to whom was referred the message of the president, relative to thomas nash, alias jonathan robbins, and a resolution submitted by himself to the house, approbating the conduct of the president, and referred to that committee, be discharged from the further consideration thereof. a long debate arose upon this motion, in which messrs. randolph, davis, jones, nicholas, livingston, and eggleston, spoke against it--and messrs. bayard, bird, otis, kittera, varnum, rutledge, edmond, shepard, and h. lee, in favor of it; when the question was taken by yeas and nays, and carried in the affirmative--yeas , nays . monday, march . _medal to captain truxton._ mr. parker observed that information had been received of a very gallant action having occurred between a frigate of the united states of guns, commanded by commodore truxton, and a french vessel of guns, which was extremely bloody, but valiant on the part of the united states commander. it was not usual to grant emoluments on account of any particular gallant action, to our officers, but to give approbation was common and consistent. in other countries, he said, monuments had been erected to commemorate such splendid victories. as a testimonial of the regard of congress for the officers who so bravely supported the flag of the united states, and to encourage similar acts of bravery, he would propose the following resolution: _resolved, by the senate and house of representatives of the united states in congress assembled_, that a golden medal, emblematical of the late action between the united states frigate constellation of guns, and the french ship-of-war la vengeance of guns, be purchased under the secretary of the navy, and be presented to captain thomas truxton, in testimony of the high sense entertained by congress of his gallantry and good conduct in the above engagement, wherein an example was exhibited by the captain, officers, sailors, and marines, honorable to the american name, and instructive to its rising navy. the resolution was ordered to lie on the table. tuesday, march . _officers and crew of the constellation._ mr. parker moved that the unfinished business be postponed for the purpose of taking up the resolution which he yesterday laid on the table, relative to the captain, officers, and crew of the constellation; when mr. nicholson said he wished it might not be taken into consideration until some official information was received upon the subject from the secretary of the navy, upon which resolutions can be grounded. in his opinion, the resolution of the gentleman did not go far enough. it had been said, that a young officer had voluntarily lost his life, rather than shrink from his duty, which he thought ought to be noticed. he was in favor of giving his approbation of the conduct of the officers and crew in more general terms than the resolution on the table contemplated. after some observations from messrs. champlin and harper, who were of the same opinion, mr. parker said, he did not suppose a doubt could exist upon this subject sufficient to require any further information than had been received through the medium of the newspapers. he had seen a letter in the possession of the secretary of the navy, from captain baker, of the delaware, who had every opportunity of knowing the situation of the enemy's frigate, was in the same harbor, and, being a nautical man, was of course able to give a correct opinion on her then situation, and the evident marks of the bravery of her antagonist with whom she contended--this was sufficient to satisfy his mind. if, said mr. p., gentlemen think the resolution does not go far enough, there is no one who will more cheerfully concur in offering other testimonies of approbation, than myself. with respect to the young officer,[ ] whose gallantry and good conduct had been so highly spoken of, it was his intention to have brought forward a resolution for setting up his bust in a niche of the capitol of the city of washington. mr. p. concluded with observing that he had no objection to call for information from the secretary of the navy, and would therefore withdraw his motion. mr. parker then moved that the house come to the following resolution, viz: _resolved_, that the secretary of the navy be requested to lay before this house any information he may possess, respecting the engagement which lately took place in the west indies between the united states frigate constellation and a french ship-of-war; _and, also, respecting the conduct of james jarvis, a midshipman on board the said frigate_. mr. smith moved to strike out the words in italics, which created considerable debate; when mr. bird proposed to insert in lieu thereof, the following words: "and also upon the conduct of any officer or other person on board said frigate, who may have particularly signalized himself in the said action;" which mr. b. supposed would meet the intention of the mover, and be less liable to objection than the words proposed to be stricken out. mr. parker having consented to the modification, the resolution was agreed to. wednesday, march . _military academy, &c._ mr. otis, from the committee of defence, reported a bill for establishing a military academy, and for better organizing the corps of engineers and artillerists. the bill was proceeding to be read, when mr. otis suggested that as this bill contained much the same in detail as a report on the subject made by the secretary of war, with which every gentleman was acquainted, he supposed the reading would not be necessary. mr. macon said he should have no objection to its being read a first time, though he did not think it necessary; but he would give notice that it was his intention to move that the bill be rejected. he mentioned his reasons to be the expense of the measure generally, which it was an improper time to incur. the bill having been read, he made the motion. mr. otis and mr. champlin answered. mr. varnum supported the motion, which was at length negatived, to ; and the bill was referred to a committee of the whole house. thursday, march . _removal of seat of government._ mr. otis observed that it appeared to be the general opinion that the seat of government would be removed to the federal city, and that congress would commence their next session at that place; and as some preliminary measures were necessary to be made previous thereto; and as it would be reposing too much power in the commissioners who now act there to rely entirely on their reports; and as some measures must be reported and adopted before the end of the present session, he laid on the table the following resolution: "_resolved_, that a committee be appointed to consider what measures are expedient for congress to adopt, preparatory to the removal of the seat of government, with leave to report by bill or otherwise." _amy dardin's case._ the house went into a committee on the report of the committee of claims on the petition of amy dardin, which was that the prayer of the petitioner ought not to be granted. being taken up in the house, the propriety and impropriety of granting it was again contended, when there appeared in favor of the report , against it . the speaker decided in the affirmative, so that the claim was not admitted. friday, march . _action of the frigate constellation._ the speaker laid before the house a report from the secretary of the navy, in compliance with the instructions of the house, respecting the engagement which occurred between the frigate constellation and a french ship-of-war. the report enclosed a letter from captain truxton, detailing the action, and also extracts of letters from the american consul at curaçoa, and one from the american agent at st. kitts, respecting the disabled state of the french ship la vengeur. as to any particular specimen of valor, the secretary received no information; but that all the officers and men had acted with the most unexampled bravery and decorum was attested by the captain, whose good management was evinced by the singular success of the action. the secretary mentions the singular bravery of james jarvis, a midshipman, who preferred death to quitting his post. on motion of mr. h. lee, this report, together with a resolution proposed some days since by mr. parker, was referred to the naval committee. monday, march . _medal to captain truxton._ mr. parker, from the naval committee, reported the following resolutions: "_resolved, by the senate and house of representatives of the united states, in congress assembled_, that the president of the united states be requested to present to captain thomas truxton, a golden medal, emblematical of the late action between the united states frigate constellation, of guns, and the french ship-of-war la vengeur, of guns, in testimony of the high sense entertained by congress of his gallantry and good conduct in the above engagement, wherein an example was exhibited by the captain, officers, sailors, and marines, honorable to the american name, and instructive to its rising navy. "_resolved_, that the conduct of james jarvis, a midshipman in said frigate, who gloriously preferred certain death to an abandonment of his post, is deserving of the highest praise; and that the loss of so promising an officer is a subject of national regret." the house then proceeded to the consideration of these resolutions; the first of which being under consideration, mr. randolph said, that inasmuch as he could not give his assent to these resolutions, he felt impressed with the propriety of stating the reasons which would govern his vote. it was not with any intention to detract from the deserved reputation which had been so nobly earned by the captain, officers, and crew of the constellation; still less to withhold the well-earned applause due to that gallant youth who had sacrificed his life in the prosecution of his duty. it was to the first of these resolutions, only, that he should deny his concurrence. he should do this, unless the gentlemen of the naval committee should show to him that it was the duty of the commander of the constellation to persist in the chase, and compel to action a ship of such superior force. this conduct was, in his opinion, rash; and, when the situation of the united states and france was taken into consideration, it was peculiarly unadvisable. our commissioners were at this time in the capital of that country negotiating peace. how did the pursuit of this ship--the forcing her into an action, which ended in the crippling of both vessels--comport with that protection which was to be afforded to our commerce by the constellation? mr. r. said that his duty obliged him to act upon his own opinion; and, however singular it may appear, he should vote against the first resolution, unless the gentleman who brought it forward would make it appear that it was the duty of captain truxton to compel the vengeance to come to action, when he knew her to be of such superior force. the second resolution met his most hearty approbation. mr. parker said, what the present state of things between the two countries might be, in the opinion of his colleague, he could not say; but mr. p. conceived it was no other than it was at the time congress passed a bill which prescribed the conduct of our naval commanders. in that bill they were authorized to take or destroy all french armed vessels: under these orders captain truxton left this country, and, in obedience to instructions to that effect, he pursued and engaged this vessel, which, though of superior force, he had beaten. had he not attacked her, it is most probable she would have proceeded against our commerce. the law having been passed by congress, if the president of the united states had not given orders conformably thereto, he would have been subject to impeachment. he, therefore, presumed it to be his duty; and, most certainly, such orders being given to the commanders, they were bound to conform to them. mr. p. thought that this and greater approbation ought to be expressed by congress for conduct so brave and unprecedented. in some countries monuments had been raised, but this was unnecessary, though merited. our naval exertions were very recent and confined, but an instance of extraordinary valor having occurred it ought to be honorably and suitably noticed. mr. nicholas said, however he might agree with his colleague (mr. randolph) in a desire that no conduct should be encouraged that would tend to aggravate france in the present situation of things, he could not agree with him in his present sentiments. while we were in a state of actual, though not of declared war, mr. n. thought it was naturally to be expected that our commanders would act in their complete military character, when our ships were arrayed for battle, and power given to act up to the full rigor which the laws of honor and of war would warrant. in the conduct of the captain, as well as the crew, mr. n. said, he saw nothing but what was extremely laudable, and highly meriting approbation. mr. lyon said he rose to request the division of the question on the resolutions. he was disposed to vote for the latter resolution, and not for the former. the speaker declared they would be divided, and that the question before the house was on the agreeing to the first resolution. mr. lyon observed that he had voted for the equipment of the three frigates under an impression that they would be employed solely for the protection of the commerce of this country: but now he found himself called upon to give thanks or praise to the commander of one of those frigates, and for what? for going out of the station assigned to him, as the most proper for the protection of the trading vessels of this country, in chase of a ship-of-war of much superior force; and for reducing the ship under his command, as well as that of his opponent, to a mere wreck. mr. l. said he had seen nothing in the orders which had been published directing him to do this, nor did he think policy or prudence dictated the measure. let all our naval commanders be excited to follow this example; let them play or fight each of them their vessel against a french vessel-of-war of superior force in the same way, and our naval force is crippled, while the french will scarcely feel their loss; then our commerce would be wholly at their mercy. besides these considerations, what is there to defend that commerce, on the station left destitute by the constellation, while she is refitting. for his part he was as glad and proud as any gentleman that our officers, and our sailors, and our marines, had behaved gallantly and done themselves and their country honor, in the late action, but he did not feel himself bound, under existing circumstances, to give distinguished praise to the conduct which produced it; he should therefore vote against the resolution. mr. j. brown would vote for this resolution for the very reason which some gentlemen urged for voting against it. he thought the very fact of chasing a ship of superior force, and forcing her to an action which had been attended with success, was a commendable act. this to him would be the only inducement for paying so high a mark of national respect. if it had been an attack upon a vessel of inferior force, he should not think it worth notice. the objection was partly on account of the french ship being of superior force; surely this would rather be a reason why we should have vessels of greater force than we have now; therefore he hoped the worthy member would suffer that brave officer to go to sea next time with a -gun ship under his command, when he would doubtless bring the enemy to a good account. the yeas and nays were called on this resolution and carried--yeas , nays , as follows: yeas.--willis alston, george baer, bailey bartlett, john bird, phanuel bishop, jonathan brace, john brown, robert brown, samuel j. cabell, christopher g. champlin, william c. c. claiborne, john condit, william cooper, samuel w. dana, john davenport, thomas t. davis, john dawson, john dennis, george dent, joseph dickson, william edmond, joseph eggleston, lucas elmendorph, thomas evans, abiel foster, dwight foster, john fowler, jonathan freeman, albert gallatin, henry glenn, samuel goode, chauncey goodrich, elizur goodrich, william gordon, edwin gray, roger griswold, john a. hanna, robert goodloe harper, thomas hartley, archibald henderson, william h. hill, david holmes, benjamin huger, james h. imlay, james jones, aaron kitchell, john wilkes kittera, henry lee, silas lee, michael leib, samuel lyman, james linn, nathaniel macon, john marshall, peter muhlenberg, anthony new, john nicholas, joseph h. nicholson, abraham nott, harrison g. otis, josiah parker, thomas pinckney, jonas platt, leven powell, john read, john rutledge, jr., samuel sewall, james sheafe, william shepard, john smilie, john smith, samuel smith, richard stanford, david stone, benjamin taliaferro, george thatcher, john chew thomas, john thompson, abram trigg, john trigg, philip van cortlandt, joseph b. varnum, peleg wadsworth, robert waln, robert williams, lemuel williams, and henry woods. nays.--george jackson, matthew lyon, john randolph, and thomas sumter. the other resolution was adopted _unanimously_. monday, march . _lake superior copper mines._ the house, according to the order of the day, again resolved itself into a committee of the whole house on the report of the committee appointed, on the th instant, to inquire into the expediency of authorizing the president of the united states to appoint an agent to purchase of the indians a tract of land on the south side of lake superior, which shall include the great copper bed; and, after some time spent therein, the committee rose and reported a resolution thereupon; which was twice read, and agreed to by the house, as follows: _resolved, by the senate and house of representatives of the united states of america in congress assembled_, that the president of the united states be authorized to employ an agent, who shall be instructed to collect all material information relative to the copper mines on the south side of lake superior, and to ascertain whether the indian title to such lands as might be required for the use of the united states, in case they should deem it expedient to work the said mines, be yet subsisting; and, if so, the terms on which the same can be extinguished: and that the said agent be instructed to make report to the president, in such time as the information he may collect may be laid before congress at their next session. _ordered_, that the clerk of this house do carry the said resolution to the senate, and desire their concurrence. wednesday, april . _removal of the seat of government._ the house then resolved itself into a committee on the bill to make further progress for the removal and accommodation of the government of the united states. a motion was then made to fill a blank for the accommodation of the household of the president, about which considerable conversation occurred; when mr. rutledge moved that the committee rise, in order that time may be given for learning the amount of money wanting for this object, and because he supposed the chairman of the committee, who was absent, might be able to give that information. the motion was afterwards withdrawn, but renewed by the speaker, and at length carried. thursday, april . _lands given in satisfaction of judgments._ mr. harper observed that in some of the states lands were received in satisfaction of judgments, which also was the case in such places where the united states were plaintiffs. to remedy what he conceived an evil, he laid on the table the following resolution: "_resolved_, that a committee be appointed to inquire and report, by bill or otherwise, whether any, and what, further provisions are necessary to be made relative to the sales of real estate delivered to the united states in satisfaction of judgments against persons indebted thereto." three members were appointed. friday, april . _removal of the seat of government._ the house then went into committee of the whole on the bill for the removal and accommodation of the government of the united states. mr. harper proposed to amend the act so as that the sum to accommodate the household of the president of the united states with furniture, in addition to what was now in possession of the president, should not operate until after the third of march next. this he did, he said, in consequence of some constitutional doubts which he had expressed. the constitution declaring that the salary of the president should receive no addition nor diminution during his being in office. this was concurred in. the question then was, what sum should be allowed for that purpose; $ , , $ , , and $ , , were severally named. mr. randolph, considering the principle itself unconstitutional, moved, in order to defeat the section altogether, (it having been amended and being out of order to move its being stricken out,) to insert the sum of $ . these different sums called forth a lengthy debate. the sum of $ , was negatived-- to . that of $ , was carried--yeas , nays . the bill being gone through, was ordered to be engrossed for a third reading on monday. friday, april . _disputed elections of president, &c._ mr. nicholson called for the order of the day on the bill prescribing the mode of deciding disputed elections of president and vice president of the united states. mr. harper moved that it be postponed till monday. mr. nicholson, after expressing his abhorrence of the principles contained in the bill, then moved that it be postponed till the first monday in december next. messrs. harper, dana, rutledge, and marshall, opposed this motion; and messrs. s. smith, gallatin, randolph, nicholson, and nicholas, supported it. the question was taken by yeas and nays, and decided in the negative--yeas , nays . mr. harper's motion for postponement till monday, was then agreed to--ayes . monday, april . _admirals in the navy._ mr. parker, from the naval committee, reported a bill for the appointment of admirals for the navy. [this bill provides for the appointment of one vice admiral and four rear admirals, and arranges the fleet into squadrons.] it was read a first time, and on the question for the second reading, it was carried-- to . having been read a second time, mr. gallatin moved its postponement till the first monday in december next. the speaker said the question was, whether it should be committed or not? the question for commitment was carried, to . the question was then to make it the order of the day for the first monday in december next. mr. eggleston hoped it would be postponed. he said it would be agreed upon to suspend the building of the 's for the present year; in addition to this our difference with france would most probably be soon adjusted. another reason was, it would incur an addition of expense, which it would be improper to go into, having recently agreed to borrow $ , , . he was really surprised to hear such a bill proposed; he scarcely could think his colleague sincere. mr. parker said that the building of the 's was not suspended, but it was thought advisable not to hurry their building. he stated a number of conveniences that would attend the new arrangement; that the whole expense would not be more than $ , , but owing to the advantages, he believed it would be a real saving. he did not think there could be any certainty of a peace, from the revolutionary disposition of france; but even if it was certain that peace would be made with that nation, it was not certain that the combined powers would not renew their hostilities. he wished this measure to be adopted, even if it was at the expense of the army. the return of peace would render the army nugatory, except just enough for the garrisons; the whole of the army expenses, he said, was upwards of four millions, but the whole sum expended on the navy (really a more efficient defence and advantage) was little more than two millions. he wished our naval defence to be nurtured and rendered respectable, for which the squadron arrangements and appointments of suitable commanders were necessary. mr. champlin also spoke in favor of the bill, and in favor of its commitment for an earlier day. mr. claiborne could not think the gentleman (mr. parker) sincere in his professions that the army was not necessary, when he perceived that every motion to reduce the army, which by other gentlemen was thought absolutely necessary, had as uniformly been opposed by that gentleman. mr. c. said he did not look forward to a period when the navy as well as the army would be unnecessary. this appointment might take place at any time when there should be necessity of it; and, therefore, as it was not pretended the 's could be built before the next session, it would then be time enough to think of voting these officers. the speaker said that it was unknown in the parliamentary proceedings of any country that the merits of a bill were discussed on a motion for postponement; he must therefore say that any discussion on the bill was out of order, and that gentlemen must confine themselves merely on the question of the day this bill should be made the order for. mr. harper stated some of the inconveniences that must attend gentlemen who brought in, or would wish to support a bill being presented, recommending its provision by a motion to postpone; he conceived the bill a valuable one, and wished for an opportunity of endeavoring to convince the house of that fact, but he was precluded by the decision of the chair, he must therefore beg leave to appeal from the decision. the question was put, "is the decision of the chair right?" and carried--yeas . mr. smith said he should vote for this bill being the order for december next, but if the 's were then ordered to proceed, he should vote for this bill, if then proposed. the yeas and nays were taken on the question, "shall this bill be postponed till the first monday in december next?" and decided in the negative--yeas , nays , as follows: yeas.--willis alston, theodorus bailey, phanuel bishop, robert brown, samuel j. cabell, matthew clay, william c. c. claiborne, john condit, thomas t. davis, john dawson, joseph eggleston, lucas elmendorph, john fowler, albert gallatin, andrew gregg, william barry grove, john a. hanna, joseph heister, david holmes, george jackson, james jones, michael leib, matthew lyon, james linn, nathaniel macon, peter muhlenberg, anthony new, john nicholas, joseph h. nicholson, abraham nott, john randolph, john smilie, john smith, samuel smith, richard dobbs spaight, richard stanford, david stone, thomas sumter, benjamin taliaferro, john thompson, abram trigg, john trigg, joseph b. varnum, and robert williams. nays.--george baer, bailey bartlett, james a. bayard, jonathan brace, john brown, christopher g. champlin, william cooper, samuel w. dana, john davenport, franklin davenport, john dennis, george dent, joseph dickson, william edmond, thomas evans, abiel foster, dwight foster, jonathan freeman, henry glenn, chauncey goodrich, elizur goodrich, roger griswold, robert goodloe harper, benjamin huger, james h. imlay, henry lee, silas lee, samuel lyman, lewis r. morris, robert page, josiah parker, thomas pinckney, jonas platt, leven powell, john read, john rutledge, jun., samuel sewall, james sheafe, william shepard, george thatcher, john chew thomas, richard thomas, robert waln, lemuel williams, and henry woods. the bill was then made the order for to-morrow. friday, april . _congress library._ mr. dennis said that by the act passed the present session, further to provide for the removal and accommodation of the government of the united states, a sum not exceeding $ , was appropriated for the purpose of procuring a library. in order to carry that provision into execution, he would move the following resolution: "_resolved_, that ---- be a committee, jointly with such committee as may be appointed on the part of the senate, for the purpose of making out a catalogue of books, and adopting the best mode of procuring a library, at the city of washington; and for adopting a system of rules and regulations relative thereto." this motion was agreed to, and messrs. waln, evans, and powell, appointed. saturday, april . _slave trade._ the house resolved itself into a committee on the bill from the senate, in addition to the act, entitled "an act prohibiting the carrying on the slave trade from the united states to any foreign place or country." mr. j. brown said, when the motion was first laid on the table, he thought it improper to prevent the citizens of the united states enjoying the benefits of a trade enjoyed by all the european nations. he really was in hopes that the good sense of the select committee would have permitted them to have seen the policy of realizing the act in question. many members of the house, he observed, knew how the former act was passed; they knew that congress was drilled into it by certain persons who would not take _no_ for an answer. it was well known that the abolition society, otherwise the society of friends, as they were called, were very troublesome until they got that act passed. it was also well known that those people did not do much to support the government, but that they did as much as they could to stop the measures of the government, and particularly our defensive system, on which our national security depended. mr. nicholas asked whether it was in order to abuse any class of citizens in this manner, and particularly since no motion was before the committee? the chairman said he conceived the gentleman to be in order, since he supposed he was about to make a motion affecting the principle of the bill. mr. brown resumed. he was only speaking, agreeably to his information, how this bill came originally into existence. he was certain that this nation having an act against the slave trade, did not prevent the exportation of a slave from africa. he believed we might as well, therefore, enjoy that trade, as to leave it wholly to others. it was the law of that country to export those whom they held in slavery--who were as much slaves there as those who were slaves in this country--and with as much right. the very idea of making a law against this trade, which all other nations enjoyed, and which was allowed to be very profitable, was ill policy. he would further say that it was wrong, when considered in a moral point of view, since, by the operation of the trade, the very people themselves much bettered their condition. it ought to be a matter of national policy, since it would bring in a good revenue to our treasury. it was not pleasing to him, mr. b. said, to pay an interest of per cent. for our loan: rather than borrow money, he would wish to be paying off some of our old standing debt, which could be done by increasing our commerce, or rendering it free. he wished it to be free as the wind that blew--from one end of the world to the other. as he observed before, he believed not one more slave would be exported from africa, while our merchants and our revenue would enjoy the benefit. mr. b. said, our distilleries and manufactories were all lying idle for want of an extended commerce. he had been well informed that on those coasts new england rum was much preferred to the best jamaica spirits, and would fetch a better price. why should it not be sent there, and a profitable return be made? why should a heavy fine and imprisonment be made the penalty for carrying on a trade so advantageous? but, he observed, if it was thought advisable that the old act should continue, he would wish it could be made to meet the purpose altogether, and prevent the system of slavery entirely, so that equal advantages might be given to all the inhabitants of the union; without this, it would, as it ever had been, remain a great disadvantage. he therefore moved that the committee rise, in order to postpone the bill. he believed the house would be better prepared to meet it in a few days. mr. nicholas seconded the motion, not but that he was prepared to decide on it, but that there might be opportunity given to express an opinion. he really could not understand the gentleman, when he said that our people being employed in that trade would not add nor diminish the number exported. this was certainly a wrong calculation. these people were enslaved for their masters, or to supply some foreign market. certainly if the number of purchasers were increased, the number of slaves would be increased. surely the gentleman would not wish them brought into the united states when he talked of their condition being improved; this was a fact, to be sure, but would it be policy so to do? but another and an important point was touched upon--that he would wish the law to be made to meet another object, if it was determined to prohibit the trade in this country. as a southern man, mr. n. said, he would observe that he was placed in a most unfortunate situation, indeed, in being obliged, in common with other people of those states, to keep men in a state of slavery: but he had the consolation to inform the house, that he believed the people of the southern states were wiping off the stain entailed upon them by their predecessors, in endeavoring to ameliorate the situation of that race of people as much as possible. this appeared to be an increasing disposition. he hoped the gentleman would have an opportunity to produce all his arguments on this subject, in his endeavors either to get the law repealed or to strengthen it, agreeably to his wish, in order that he might be satisfied that he would not find an advocate in the house. mr. d. foster spoke against the committee rising. several sections of the bill were then gone through with, when the committee rose, and obtained leave to sit again. monday, april . _the slave trade._ mr. rutledge moved that the committee of the whole, to whom were referred the bill for preventing the carrying on the slave trade, &c., be discharged from further consideration thereof. he conceived it to be one of the most defective bills that ever was before congress, because the object intended was in nowise provided for, or utterly impracticable. mr. bayard was of the same opinion. he had taken some pains to examine the bill, but was obliged to conclude it extremely imperfect. the objects of the former bill, and which was intended to be improved, were, to prevent the citizens of the united states having any right in vessels so employed; and also to prevent the citizens of the united states being employed on board any such vessels. he trusted that a great majority of the members of the house would be in favor of those principles, and effectually promote them. it would indeed be extremely dishonorable in a country like this, to affirm such a trade, so contrary to all those principles held dear in the united states, and which ought to be promoted. his desire was, that a bill should be constructed upon the true principles of the intent of congress: so far he thought they might go, but no farther. to be sure, as the gentleman from rhode island (mr. j. brown) observed, the government could derive revenue from the encouragement of this trade, but he thought a more dishonorable item of revenue could not be established. the committee was discharged. mr. bayard then moved that the bill should be referred to a select committee. mr. rutledge hoped this would not be agreed to; he was not disposed at this late day of the session to take up any new business that was not of urgency. he thought it was perfectly unnecessary to make a new act upon the subject; he believed the former act did every thing that was necessary or practicable to be done. what more could be wanted than that persons engaged in this traffic should forfeit their ships and pay a fine, besides, in many instances, imprisonment of the person offending? surely that was all the occasion required. the different states which had heretofore imported those people into the united states had established the policy not to import any more; but in addition to this willing restriction, the federal government thought proper to prevent the trade being carried on, by our ships, to those countries which did suffer their importation. this was going very far indeed, but so far it was thought proper to go, to furnish a peace-offering to those philanthropists whose urgency was great to accomplish the general destruction of the trade. however, the activity of the people of the four new england states first engaged them in this profitable traffic; their produce would bring a good price on the african coast, and why they might not enjoy the profit of it as well as the english he could not conceive. he believed it to be impossible effectually to prevent it. some gentlemen, indeed, had talked of authorizing our cruisers to seize vessels of this kind, but, suppose they were confiscated, what was to be done with their cargoes? they could not be brought into the united states. where could they be carried? it was not consistent with the policy of the west india islands to suffer them to land there, since it was their practice to keep these people in bondage, and they did not want, nor could they suffer free men to inundate those colonies. he knew of no place where they could be landed but st. domingo, and as these people would not have been of those who had procured the freedom of slaves there--were not of those who had spread devastation and murder throughout that island, it was probable they would spurn them from their shores. what then was to be done with them? surely no gentleman would wish them to be drowned, and it would be as absurd to think of sending them back to sierra leone! these difficulties he thought insuperable. mr. waln hoped the bill would be committed, and that the provisions of it would be made effectual to its object. as for the people of pennsylvania, he believed he could say they were unanimously in favor of the trade being put an end to most completely; which was in nowise done by the law now in force, nor by the bill now proposed. he said it was well known, that great grievances did exist for want of the due execution of the law, and much greater than were generally known, and hence it was that no more was heard of it from the people on this subject. he had been well informed that great evasions had taken place, and that this unlawful trade was becoming more and more in use. in the last year he believed that near forty vessels entered the west indies with this illicit species of commerce. in some parts of the united states, he had been well informed, it was become so popular, that if a vessel was seized and sold, it was impossible to get any person to bid for her, and therefore the owner was enabled to repurchase her at a very low price indeed. it would be much better to repeal the old law, and open the trade, than to suffer the law to continue when nearly a nullity. but this he believed was not the disposition of the house; he believed the house could carry the principle into effect, and he was sure that a very great majority of the american people would wish them to do it. the motion for recommitment was carried by a very large majority, and three members appointed. _military academy, &c._ mr. eggleston said, since he found the house so much disposed to prepare for the close of the session by postponing unnecessary business, he would move that the bill for establishing a military academy, and for the better organization of the corps of artillerists and engineers, be postponed till the first monday in december next. after some observations against the motion, by messrs. parker, champlin, and h. lee, and in favor of it by messrs. eggleston and shepard, it was carried--yeas , nays . _treaty with great britain._ the house went into a committee on the bill for the execution of the th article of the treaty with great britain. a motion of mr. nicholas was under consideration, that no person whose case was cognizable in any of our courts should be delivered up. this caused a lengthy debate; it was advocated by messrs. s. smith, nicholson, and gallatin, and opposed by messrs. bayard, dana, and dennis. it was negatived to . after which the committee rose, obtained leave to sit again, and the house adjourned. tuesday, april . an engrossed bill to promote the manufacture of sheet copper within the united states, by incorporating a company for carrying on the same, was read the third time, and passed. thursday, may . _appropriation for holding indian treaties._ the house resolved itself into a committee of the whole house on the report of the committee to whom was referred, on the seventh of march last, the petition of william hill and others, and, after some time spent therein, the committee rose and reported two resolutions thereupon; which were severally twice read, and agreed to by the house, as follows: _resolved_, that the sum of ---- dollars ought to be appropriated by law to defray the expenses of such treaty or treaties as the president of the united states may deem it expedient to hold with any nation or nations of indians south-west of the river ohio. _resolved_, that provision ought to be made by law, authorizing and enabling all persons who, under the laws of north carolina, and in conformity to the regulations and provisions thereof, have entered, surveyed, located, or obtained, grants of any of the lands ceded by the said state to the united states, in such manner as would have vested a good title under the said state of north carolina, if such cession had not been made, to enter upon, occupy, and possess, the same, or to remove thereto their location from such lands, the titles whereto shall not be extinguished, whenever, and as soon as the indian title or claim to a sufficient portion of the said land shall be extinguished, under the authority of the united states; and to possess and enjoy the same in as full and ample manner as if the same had been derived from, or under, the united states. _ordered_, that a bill or bills be brought in, pursuant to the first resolution; and that mr. pinckney, mr. chauncey goodrich, mr. henderson, mr. nicholas, and mr. thatcher, do prepare and bring in the same. saturday, may . _slave trade._ the house went into committee on the bill to prohibit carrying on the slave trade to any foreign country. the committee rose and reported the bill. on the question, when it should be read a third time, it was carried for to-day. on the question for its passing, a long and warm debate ensued. several attempts were made to postpone its passing, but to no effect. at length the question was taken--yeas , nays , as follows: yeas.--willis alston, george baer, theodorus bailey, bailey bartlett, james a. bayard, phanuel bishop, jonathan brace, robert brown, samuel j. cabell, matthew clay, william c. c. claiborne, john condit, william cooper, samuel w. dana, john davenport, franklin davenport, john dennis, william edmond, joseph eggleston, thomas evans, abiel foster, dwight foster, albert gallatin, henry glenn, chauncey goodrich, elizur goodrich, edwin gray, andrew gregg, roger griswold, william barry grove, john a. hanna, robert goodloe harper, thomas hartley, joseph heister, william h. hill, david holmes, james h. imlay, aaron kitchell, silas lee, michael leib, samuel lyman, nathaniel macon, lewis r. morris, peter muhlenberg, john nicholas, abraham nott, robert page, thomas pinckney, jonas platt, leven powell, john read, samuel sewall, william shepard, john smilie, john smith, david stone, thomas sumter, george thatcher, john chew thomas, john thompson, abram trigg, john trigg, joseph b. varnum, peleg wadsworth, robert waln, and robert williams. nays.--john brown, george dent, joseph dickson, benjamin huger, and john rutledge, jr. and the house adjourned. tuesday, may . _additional revenue._ the house resolved itself into a committee of the whole on the further report of the committee of ways and means, on the subject of the revenue; when the first resolution, laying an additional duty of twenty per centum on wines, after being amended, on motion of mr. griswold, to read as follows, was adopted: "_resolved_, that it is expedient to lay an additional duty of twenty per centum on the amount of the present duty upon wines imported into the united states, and to vary the scale of duties in such manner as to comport with the plan of the secretary of the treasury." the second resolution was agreed to without debate as follows: "_resolved_, that it is expedient to lay an additional duty of two and a half per centum ad valorem on such goods, wares, and merchandise, imported into the united states, as are now subject to a duty of ten per centum ad valorem." the third resolution was opposed by messrs. harper and s. smith, and supported by mr. griswold; after which the committee rose, and obtained leave to sit again. wednesday, may . a message from the senate informed the house, that they have concurred in the amendments of this house, to the bill relative to the slave trade with several amendments, to which they desire the concurrence of the house; also, that the senate insist on some of their amendments disagreed to by this house, to the bill supplementary to an act for an amicable settlement of limits within the state of georgia, and for establishing a government in the mississippi territory. _additional army._ mr. harper said, that by the terms of enlistment of the additional army, they were engaged to serve for three years, or until an amicable adjustment of the differences existing between the united states and france; from which circumstance, the president was precluded, even if he knew the preliminaries of peace to be adjusted, from disbanding it until a treaty should be actually concluded and ratified by the two governments--whereby the troops would be kept for perhaps six months in service unnecessarily. the navy and other parts of our defensive system, were upon a different footing. he wished the army to be placed on a similar one, and therefore moved the following resolution: "_resolved_, that it is expedient to authorize the president of the united states to discharge the additional army thereof, as soon as the state of things between the united states and the french republic will warrant the measure." the resolution was agreed to, and referred to the committee of the whole house, to whom was committed the bill from the senate, to suspend part of the act entitled "an act to augment the army of the united states." _additional revenue._ the house again resolved itself into a committee of the whole on the further report of the committee of ways and means on the subject of revenue; and the tax on drawbacks being under consideration, mr. griswold and mr. harper again spoke for and against the motion. mr. nicholas, mr. huger, and mr. randolph, also spoke against the motion; after which the question was taken and negatived, only votes being in favor of it. the third resolution, to lay an additional duty of one half per cent. per pound on brown sugar and coffee imported into the united states was opposed by mr. griswold, who doubted much the propriety of laying an additional duty on coffee, and therefore moved to strike out that article. the motion was opposed by mr. harper, and advocated by mr. sewall, who was of opinion that this article was frequently smuggled, and was apprehensive it would be more so, if an additional duty were laid, and therefore would injure the revenue. the motion was carried--yeas , nays . the question on the resolution as amended, was, after some debate, put and carried--yeas , nays . the fourth resolution reported, to retain two and a half per centum on all drawbacks allowed for goods re-exported from the united states, in addition to the sums heretofore directed to be retained by law, and also on the whole of the additional duty on goods imported in foreign ships or vessels, was agreed to without debate. the committee then rose, and, upon the question, will the house concur with the committee in their agreement to the resolution laying an additional duty on sugar? the yeas and nays were called for, and taken-- to . the other resolutions, as amended, were also agreed to, and the committee of ways and means directed to bring in a bill or bills conformable thereto. thursday, may . _memory of washington._ mr. h. lee, from the select committee appointed to consider what measures it would be proper for congress to adopt for paying suitable respect to the memory of the man first in peace, first in war, and first in the hearts of his countrymen--the deceased general washington--made a report, recommending the adoption of the following resolutions: "_resolved_, that the resolution of congress passed in the year , respecting an equestrian statue of general washington, be carried into immediate execution, and that the statue be placed in the centre of an area to be formed in front of the capitol. "_resolved_, that a marble monument be erected by the united states in the capitol at the city of washington, in honor of general washington, to commemorate his services, and to express the regrets of the american people for their irreparable loss. "_resolved_, that the president of the united states be requested to give such directions as may appear to him proper, to carry the preceding resolutions into effect; and that for the present, the sum of $ , be appropriated for these purposes." the resolutions were referred to a committee of the whole house, and immediately taken into consideration; when mr. harper moved to amend the first resolution, by inserting that a mausoleum be erected for general washington, in the city of washington, instead of the statue proposed, which was carried; the other resolutions were negatived, of course. the committee then rose, and the resolution, as amended by mr. harper, was agreed to by the house, and a bill ordered to be brought in pursuant thereto. friday, may . _the treasury department._ the house went into a committee on the act supplementary to the act entitled "an act to establish the treasury department." the committee rose and reported the bill--which provided that the secretary of the treasury should lay before congress, at the commencement of every session, a report on the subject of finance together with such plans for improving the revenue as may occur to him. mr. gallatin and mr. nicholas opposed the passing of the bill, on constitutional principles. they observed, that as all money bills were to originate in the house of representatives, the senate had no right to propose any bill by which that provision was changed; nor could the secretary of the treasury, upon the same ground, propose any thing that should originate any money bill. heretofore, it had been usual, when information was wanting by the house, to call for it from that department, and the same could be done again. it was contended by mr. griswold and mr. harper, that it was not a power to report a bill, but merely the state of our finances, which, for want of due notice, had heretofore been delayed, so as to throw all the most important business upon the close of the session, whereas, by a leisurely and mature examination, the secretary of the treasury would be enabled to make a timely and complete report. the bill passed to its third reading-- to . _memory of washington._ mr. evans, from the committee appointed for that purpose, reported a bill for erecting a mausoleum for george washington, in the city of washington. the bill provided that it should be one hundred feet square at the base, and of a proportionate height. mr. eggleston wished to hear the estimated price. mr. harper said he had an estimate from mr. latrobe, of philadelphia, who was the architect employed on the pennsylvania bank, the estimate of which had rather been over the actual expense; the estimate was that a pyramid of one hundred feet at the bottom, with nineteen steps, having a chamber thirty feet square, made of granite, to be taken from the potomac, with a marble sarcophagus in the centre, and four marble pillars on the outside, besides other proportionate ornaments, would amount to $ , . he hoped no objection would be made to the price, since it could not occur on any future occasion, as _another_ washington _would never die_. mr. nicholas thought every sense of respect would be as well signified by a building of less dimensions, and it would be considerable less expense; he moved to strike out one hundred and insert sixty. after some debate, this was negatived. the bill was then ordered to be engrossed for its third reading. _meeting of congress._ a bill was received from the senate appointing the time and directing the place of the next meeting of congress, which provided that the two houses should meet at the city of washington on the third monday in november next. the house went into committee thereupon, which was reported. on the question for its third reading, it was carried--yeas , nays . the speaker voted in the affirmative, and it was ordered to a third reading to-morrow. saturday, may . _memory of washington._ the bill for erecting a mausoleum for george washington, in the city of washington, was read a third time; and upon the question, shall the bill pass? mr. kitchell called the yeas and nays upon it, and proceeded to give his reasons why he would vote against the bill. he was followed by mr. harper in favor of it, and mr. randolph against it; when the question was taken, and the bill passed--yeas , nays , as follows: yeas.--willis alston, bailey bartlett, james a. bayard, jonathan brace, john brown, gabriel christie, william c. c. claiborne, william craik, samuel w. dana, franklin davenport, thomas t. davis, john dawson, george dent, joseph dickson, thomas evans, abiel foster, albert gallatin, henry glenn, chauncey goodrich, elizur goodrich, edwin gray, roger griswold, john a. hanna, robert goodloe harper, david holmes, benjamin huger, james h. imlay, james jones, john wilkes kittera, henry lee, silas lee, edward livingston, lewis r. morris, peter muhlenberg, abraham nott, robert page, jonas platt, leven powell, john read, john rutledge, jun., samuel sewall, james sheafe, john smith, samuel smith, richard dobbs spaight, george thatcher, john c. thomas, richard thomas, abram trigg, philip van cortlandt, peleg wadsworth, robert waln, lemuel williams, and henry woods. nays.--theodorus bailey, robert brown, matthew clay, john condit, john davenport, george jackson, aaron kitchell, michael leib, james linn, nathaniel macon, anthony new, john nicholas, john randolph, william shepard, john smilie, thomas sumter, john thompson, john trigg, and joseph b. varnum. _next meeting of congress._ the bill from the senate appointing the time and directing the place of the next meeting of congress, was read a third time; when mr. bayard moved that it be recommitted to a committee of the whole house, for the purpose of altering the time of commencing the session. after some debate, the motion was negatived. the question was then put, shall the bill pass? and resolved in the affirmative--yeas , nays . the next meeting of congress will of course take place on the third monday in november next. _imprisonment for debt._ the bill making further provision for the relief of persons imprisoned for debts due the united states, was taken up in committee, agreed to, and upon the question shall the bill be engrossed for a third reading, it passed in the affirmative--yeas , nays . the bill was subsequently read the third time and passed--yeas , nays . [by this bill no person indebted to the united states can be discharged from prison, unless he shall have suffered two years imprisonment.] _elections of president._ a message was received from the senate informing the house that the senate adhere to their disagreement to the amendments to the bill prescribing the mode of deciding disputed elections of president and vice president of the united states, made by this house, and subsequently insisted on, whereupon, mr. harper moved that this house do also adhere to their disagreement to recede; which was carried, and the bill, consequently, is lost. monday, may . on motion of mr. nicholas, the house rescinded a resolution to adjourn the two houses this day, and a resolution was adopted that the president of the senate and the speaker of the house should adjourn both houses to-morrow. the senate amended it by proposing wednesday. on the question of concurrence, it was carried, to . a message from the senate, informed the house that the senate agree to the resolution for postponing the time of adjournment of the two houses, with an amendment; to which they desire the concurrence of this house. the house proceeded to consider the amendment proposed by the senate to the resolution for postponing the time of adjournment: whereupon, _resolved_, that this house doth agree to the said amendment. wednesday, may . _canadian refugees._ a message from the senate informed the house that the senate have passed a bill regulating the grants of land to the canada and nova scotia refugees, with amendments. the amendments were taken into consideration, and opposed by mr. gallatin, who said the object of the senate was to give the refugees land worth ten cents an acre, instead of good land worth one dollar per acre, as proposed by this house; rather than do this, he would give them nothing. mr. livingston was of the same opinion, and hoped the house would not concur. these people had waited eighteen years, and he thought it extremely hard they should now be put off in this manner. the amendments were unanimously rejected. a message from the senate informed the house that they adhered to the amendment; whereupon, mr. gallatin moved that the further consideration of the bill be postponed till the third monday in november next, which was carried. after receiving several messages from the president, notifying the signing of various bills, there appearing no further business before the house, on motion of mr. c. goodrich a resolution for the appointment of a joint committee to wait on the president, and inform him of the proposed recess, was adopted, and was concurred in by the senate. mr. c. goodrich, from the joint committee, reported that they had performed that service, and that the president informed them he had no other communication to make, except his good wishes for their health and happiness, and that he wished them a pleasant journey to their respective homes. a message having been sent to the senate to inform them this house was ready to adjourn, after a few minutes a motion was made for that purpose, and carried; when the speaker, after taking an affectionate farewell of the members, and expressing his wish for their safe return and happiness, during the recess, adjourned the house till the third monday in november next, to meet in the city of washington, in the district of columbia. sixth congress.--second session. begun at the city of washington, november , .[ ] proceedings in the senate. monday, november , . in pursuance of the law of the last session, the second session of the sixth congress commenced this day, at the city of washington, and the senate assembled, in their chamber, at the capitol. present: john langdon and samuel livermore, from new hampshire. dwight foster, from massachusetts. james hillhouse and uriah tracy, from connecticut. theodore foster, from rhode island. nathaniel chipman, from vermont. james schureman, from new jersey. william hill wells, from delaware. john e. howard, from maryland. stephens thompson mason, from virginia. john brown, from kentucky. joseph anderson and william cocke, from tennessee. abraham baldwin, from georgia. the number of members present not being sufficient to constitute a quorum, the senate adjourned to o'clock to-morrow morning. tuesday, november . the number of members present not being sufficient to constitute a quorum, the senate adjourned. wednesday, november . there being no quorum, the senate adjourned. thursday, november . there being no quorum present, the senate adjourned. friday, november . timothy bloodworth, from the state of north carolina; humphrey marshall, from the state of kentucky; and gouverneur morris, from the state of new york, severally attended. the credentials of dwight foster, appointed a senator by the state of massachusetts, in place of samuel dexter, resigned, were read, and he took his seat in the senate. the vice president being absent, the senate proceeded to the election of a president, _pro tempore_, as the constitution provides, and john e. howard was chosen. the president administered the oath prescribed by law to mr. foster. _ordered_, that the secretary wait on the president of the united states, and acquaint him that a quorum of the senate is assembled, and that, in the absence of the vice president, they have elected john e. howard, president of the senate, _pro tempore_. _ordered_, that the secretary acquaint the house of representatives that a quorum of the senate is assembled and ready to proceed to business; and that, in the absence of the vice president, they have elected john e. howard president of the senate, _pro tempore_. a message from the house of representatives informed the senate that a quorum of the house is assembled, and they have appointed a committee on their part, together with such committee as the senate may appoint, to wait on the president of the united states, and notify him that a quorum of the two houses is assembled, and ready to receive any communications that he may be pleased to make them. _resolved_, that the senate concur in the resolution last recited, and that messrs. wells and tracy be the committee on the part of the senate. mr. wells reported, from the joint committee last mentioned, that they had waited on the president of the united states; and that he acquainted the committee that he would meet the two houses of congress, at o'clock to-morrow, in the senate chamber. saturday, november . _ordered_, that the secretary notify the house of representatives, that the senate are ready to meet them in their chamber, for the purpose of receiving the communications from the president of the united states. the house of representatives having accordingly taken the seats assigned them, the president of the united states came into the senate chamber, and addressed both houses of congress as follows: _gentlemen of the senate, and gentlemen of the house of representatives_: immediately after the adjournment of congress at their last session in philadelphia, i gave directions, in compliance with the laws, for the removal of the public offices, records, and property. these directions have been executed, and the public officers have since resided and conducted the ordinary business of the government in this place. i congratulate the people of the united states on the assembling of congress at the permanent seat of their government; and i congratulate you, gentlemen, on the prospect of a residence not to be changed. although there is cause to apprehend that accommodations are not now so complete as might be wished, yet there is great reason to believe that this inconvenience will cease with the present session. it would be unbecoming the representatives of this nation to assemble, for the first time, in this solemn temple, without looking up to the supreme ruler of the universe, and imploring his blessing. may this territory be the residence of virtue and happiness! in this city may that piety and virtue, that wisdom and magnanimity, that constancy and self-government which adorned the great character whose name it bears, be for ever held in veneration! here, and throughout our country, may simple manners, pure morals, and true religion flourish for ever! it is with you, gentlemen, to consider whether the local powers over the district of columbia, vested by the constitution in the congress of the united states, shall be immediately exercised. if, in your opinion, this important trust ought now to be executed, you cannot fail, while performing it, to take into view the future probable situation of the territory for the happiness of which you are about to provide. you will consider it as the capital of a great nation, advancing, with unexampled rapidity, in arts, in commerce, in wealth, and in population; and possessing, within itself, those energies and resources which, if not thrown away, or lamentably misdirected, will secure to it a long course of prosperity and self-government. in compliance with a law of the last session of congress, the officers and soldiers of the temporary army have been discharged. it affords real pleasure to recollect the honorable testimony they gave of the patriotic motives which brought them into the service of their country, by the readiness and regularity with which they returned to the station of private citizens. it is, in every point of view, of such primary importance to carry the laws into prompt and faithful execution, and to render that part of the administration of justice which the constitution and laws devolve on the federal courts, as convenient to the people as may consist with their present circumstances, that i cannot omit once more to recommend to your serious consideration the judiciary system of the united states. no subject is more interesting than this to the public happiness, and to none can those improvements which may have been suggested by experience be more beneficially applied. a treaty of amity and commerce with the king of prussia has been concluded and ratified. the ratifications have been exchanged, and i have directed the treaty to be promulgated by proclamation. the difficulties which suspended the execution of the sixth article of our treaty of amity, commerce, and navigation, with great britain, have not yet been removed. the negotiation on this subject is still pending. as it must be for the interest and honor of both nations to adjust this difference with good faith, i indulge confidently the expectation that the sincere endeavors of the government of the united states to bring it to an amicable termination will not be disappointed. the envoys extraordinary and ministers plenipotentiary from the united states to france were received by the first consul with the respect due to their character; and three persons with equal powers were appointed to treat with them.[ ] although, at the date of the last official intelligence, the negotiation had not terminated, yet it is to be hoped that our efforts to effect an accommodation will at length meet with a success proportioned to the sincerity with which they have been so often repeated. while our best endeavors for the preservation of harmony with all nations will continue to be used, the experience of the world, our own experience, admonish us of the insecurity of trusting too confidently to their success. we cannot, without committing a dangerous imprudence, abandon those measures of self-protection which are adapted to our situation, and to which, notwithstanding our pacific policy, the violence and injustice of others may again compel us to resort. while our vast extent of sea-coast, the commercial and agricultural habits of our people, the great capital they will continue to trust on the ocean, suggest the system of defence which will be most beneficial to ourselves, our distance from europe, and our resources for maritime strength, will enable us to employ it with effect. seasonable and systematic arrangements, so far as our resources will justify, for a navy, adapted to defensive war, and which may, in case of necessity, be quickly brought into use, seem to be as much recommended by a wise and true economy as by a just regard for our future tranquillity, for the safety of our shores, and for the protection of our property committed to the ocean. the present navy of the united states, called suddenly into existence by a great national exigency, has raised us in our own esteem; and, by the protection afforded to our commerce, has effected, to the extent of our expectations, the objects for which it was created. in connection with a navy ought to be contemplated the fortification of some of our principal seaports and harbors. a variety of considerations, which will readily suggest themselves, urge an attention to this measure of precaution. to give security to our principal ports, considerable sums have already been expended, but the works remain incomplete. it is for congress to determine whether additional appropriations shall be made, in order to render competent to the intended purposes the fortifications which have been commenced. the manufacture of arms within the united states still invites the attention of the national legislature. at a considerable expense to the public this manufacture has been brought to such a state of maturity as, with continued encouragement, will supersede the necessity of future importations from foreign countries. _gentlemen of the house of representatives_: i shall direct the estimates of the appropriations necessary for the ensuing year, together with an account of the public revenue and expenditure, to a late period, to be laid before you. i observe, with much satisfaction, the product of the revenue during the present year has been more considerable than during any former equal period. this result affords conclusive evidence of the great resources of this country, and of the wisdom and efficiency of the measures which have been adopted by congress for the protection of commerce and preservation of public credit. _gentlemen of the senate, and gentlemen of the house of representatives_: as one of the grand community of nations, our attention is irresistibly drawn to the important scenes which surround us. if they have exhibited an uncommon portion of calamity, it is the province of humanity to deplore, and of wisdom to avoid, the causes which may have produced it. if, turning our eyes homeward, we find reason to rejoice at the prospect which presents itself; if we perceive the interior of our country prosperous, free, and happy; if all enjoy in safety, under the protection of laws emanating only from the general will, the fruits of their own labor, we ought to fortify and cling to those institutions which have been the source of such real felicity; and resist, with unabating perseverance, the progress of those dangerous innovations which may diminish their influence. to your patriotism, gentlemen, has been confided the honorable duty of guarding the public interests; and, while the past is to your country a sure pledge that it will be faithfully discharged, permit me to assure you that your labors to promote the general happiness will receive from me the most zealous co-operation. john adams. united states, _nov. , _. the president of the united states having retired, the two houses separated. _ordered_, that messrs. tracy, morris, and baldwin, be a committee to report the draft of an address to the president of the united states, in answer to his speech this day to both houses. it was further ordered that the speech be printed for the use of the senate. monday, november . jonathan dayton, from the state of new jersey, attended. mr. tracy, from the committee appointed to draft an address in answer to the speech of the president of the united states to both houses of congress, at the opening of the session, made a report, which was read, and ordered to lie for consideration. tuesday, november . wilson cary nicholas, from the state of virginia, attended. the senate took into consideration the report of the committee of the draft of an address in answer to the speech of the president of the united states to both houses of congress, at the opening of the session; which, being read in paragraphs, and amended, was adopted, as follows: _to the president of the united states_: sir: impressed with the important truth that the hearts of rulers and people are in the hand of the almighty, the senate of the united states most cordially join in your invocations for appropriate blessings upon the government and people of this union. we meet you, sir, and the other branch of the national legislature in the city which is honored by the name of our late hero and sage, the illustrious washington, with sensations and emotions which exceed our power of description. while we congratulate ourselves on the convention of the legislature at the permanent seat of government, and ardently hope that permanence and stability may be communicated as well to the government itself as to its seat, our minds are irresistibly led to deplore the death of him who bore so honorable and efficient a part in the establishment of both. great indeed would have been our gratification if his sum of earthly happiness had been completed by seeing the government thus peaceably convened at this place; but we derive consolation from a belief that the moment in which we were destined to experience the loss we deplore, was fixed by that being whose counsels cannot err; and from a hope that, since in this seat of government, which bears his name, his earthly remains will be deposited, the members of congress, and all who inhabit the city, with these memorials before them, will retain his virtues in lively recollection, and make his patriotism, morals, and piety, models for imitation. and permit us to add, sir, that it is not among the least of our consolations that you, who have been his companion and friend from the dawning of our national existence, and trained in the same school of exertion to effect our independence, are still preserved by a gracious providence in health and activity to exercise the functions of chief magistrate. the question whether the legal powers over the district of columbia, vested by the constitution in the congress of the united states, shall be immediately exercised, is of great importance, and in deliberating upon it, we shall naturally be led to weigh the attending circumstances and every probable consequence of the measures which may be proposed. the several subjects for legislative consideration, contained in your speech to both houses of congress, shall receive from the senate all the attention which they can give, when contemplating those objects, both in respect to their national importance, and the additional weight that is given them by your recommendation. we deprecate, with you, sir, all spirit of innovation, from whatever quarter it may arise, which may impair the sacred bond that connects the different parts of this empire; and we trust, that, under the protection of divine providence, the wisdom and virtue of the citizens of the united states will deliver our national compact unimpaired to a grateful posterity. from past experience, it is impossible for the senate of the united states to doubt of your zealous co-operation with the legislature in every effort to promote the general happiness and tranquillity of the union. accept, sir, our warmest wishes for your health and happiness. john e. howard, _president of the senate, pro tempore_. _resolved_, that a committee be appointed to wait on the president of the united states, and desire him to acquaint the senate at what time and place it will be convenient for him that the address of the senate, in answer to his speech to both houses of congress at the opening of the session, shall be presented; and that messrs. tracy, morris, and baldwin, be this committee. a message from the house of representatives informed the senate that the house have resolved, that two chaplains be appointed to congress, for the present session, one by each house, to interchange weekly; in which they desire the concurrence of the senate. the senate took into consideration the resolution last mentioned; and _resolved_, that they do concur therein with the following amendment: after the word "chaplains," insert "of different denominations." wednesday, november . mr. tracy reported, from the committee yesterday appointed for the purpose, that they had waited on the president of the united states, and that he would receive the address of the senate this day, at o'clock, at his own house. whereupon, the senate waited on the president of the united states accordingly: and the president of the senate, in their name, presented the address yesterday agreed to. to which the president made the following reply: _mr. president and gentlemen of the senate_: for this excellent address, so respectful to the memory of my illustrious predecessor, which i receive from the senate of the united states, at this time, and in this place, with peculiar satisfaction, i pray you to accept of my unfeigned acknowledgments. with you, i ardently hope, that permanence and stability will be communicated as well to the government itself, as to its beautiful and commodious seat. with you i deplore the death of that hero and sage who bore so honorable and efficient a part in the establishment of both. great indeed would have been my gratification, if his sum of earthly happiness had been completed by seeing the government thus peaceably convened at this place, himself at its head. but, while we submit to the decision of heaven, whose councils are inscrutable to us, we cannot but hope, that the members of congress, the officers of government, and all who inhabit the city or the country, will retain his virtues in lively recollection, and make his patriotism, morals, and piety, models for imitation. i thank you, gentlemen, for your assurance that the several subjects for legislative consideration, recommended in my communication to both houses, shall receive from the senate a deliberate and candid attention. with you, gentlemen, i sincerely deprecate all spirit of innovation which may weaken the sacred bond that connects the different parts of this nation and government; and with you i trust, that, under the protection of divine providence, the wisdom and virtue of our citizens will deliver our national compact unimpaired to a free, prosperous, happy, and grateful posterity. to this end it is my fervent prayer, that, in this city, the fountains of wisdom may be always open, and the streams of eloquence for ever flow. here may the youth of this extensive country for ever look up without disappointment, not only to the monuments and memorials of the dead, but to the examples of the living, in the members of congress and officers of government, for finished models of all those virtues, graces, talents, and accomplishments, which constitute the dignity of human nature, and lay the only foundation for the prosperity or duration of empires. john adams. city of washington, _nov. , _. the senate returned to their own chamber; and the reply of the president of the united states having been read, adjourned. friday, november . thomas jefferson, vice president of the united states, and president of the senate, attended. monday, december . jesse franklin, from the state of north carolina, attended. the vice president communicated a letter from james lloyd, a senator from the state of maryland, resigning his seat in the senate; which was read. tuesday, december . jacob read, from the state of south carolina, and james gunn, from the state of georgia, severally attended. thursday, december . ray greene, from the state of rhode island, and elijah paine, from the state of vermont, severally attended. monday, december . william hindman, appointed a senator by the legislature of the state of maryland, for the remainder of the term for which james lloyd was elected, produced his credentials, was qualified, and took his seat in the senate. friday, december . jonathan mason, appointed a senator by the legislature of the state of massachusetts, in place of benjamin goodhue, resigned, produced his credentials, was qualified, and took his seat in the senate. monday, january , . _mississippi territorial laws._ the following message was received from the president of the united states: _gentlemen of the senate, and gentlemen of the house of representatives_: i transmit to both houses of congress, for their information and consideration, copies of laws enacted by the governor and judges of the mississippi territory, from the th of june until the st of december, a. d. .[ ] john adams. united states, _jan. , _. the message was read and ordered to lie for consideration. wednesday, january . the senate took into consideration the report of the committee to whom was referred so much of the president's speech as relates to the exercise of the local powers over the district of columbia, vested by the constitution in the congress of the united states; which is, "that, by the cession of the several states of virginia and maryland, and the acceptance thereof by congress, the said district has become the permanent seat of the government of the united states; "that the powers of the said states to legislate within said district have wholly ceased; "and that the sole power of legislation over the same is thereupon exclusively vested in congress." and, on motion to agree thereto, a motion was made for the previous question, to wit: "shall the main question be now put?" and which passed in the negative. the senate resumed the second reading of the bill concerning the district of columbia; and, after debate, _ordered_, that it be recommitted to the original committee, further to consider and report thereon. thursday, january . john armstrong, appointed a senator by the legislature of the state of new york, in place of john laurance, resigned, produced his credentials, was qualified, and took his seat in the senate. monday, january . william bingham and james ross, from the state of pennsylvania, severally attended. thursday, january . mr. nicholas, from the committee on the bill to erect a mausoleum for george washington, reported amendments; which were read, and ordered to lie for consideration. tuesday, january . the senate proceeded to the consideration of executive business. wednesday, january . the vice president communicated a letter from the commissioners of the city of washington, addressed to both houses of congress requesting the assignment of a room in the capitol for the temporary accommodation of the supreme judicial court of the united states; which was read. _resolved_, that the secretary be directed to inform the commissioners of the city of washington that the senate consent to the accommodation of the supreme court in one of the committee rooms, as proposed in their letter. thursday, january . _mausoleum for washington._ the senate resumed the consideration of the report of the committee on the bill to erect a mausoleum for george washington; and on motion to agree to the report, and to strike out, after the word "that," immediately following the enacting clause, the whole of the bill, for the purpose of inserting as follows: "in testimony of the respect and gratitude of the citizens of the united states to george washington, and for carrying into effect the resolution of congress of the th day of december, , to commemorate the great events of his military and political life, there shall be and hereby is appropriated a sum not exceeding ---- thousand dollars, to be paid out of any moneys in the treasury of the united states, not otherwise appropriated. "_and be it further enacted_, that ---- ---- shall be and hereby are, empowered, to fix on a plan and make all contracts and engagements for payment of moneys, not exceeding in the whole the aforesaid sum of ---- dollars; and to adopt all other measures necessary and proper for the due execution of this act, as to them shall seem expedient." and it was agreed to divide the motion, and that the question be taken on striking out, which passed in the affirmative--yeas , nays , as follows: yeas.--messrs. anderson, armstrong, baldwin, bloodworth, brown, cocke, dayton, t. foster, d. foster, franklin, hillhouse, langdon, marshall, s. t. mason, nicholas, and schureman. nays.--messrs. chipman, greene, hindman, howard, latimer, livermore, j. mason, morris, paine, read, tracy, and wells. monday, january . the senate resumed the second reading of the bill for erecting a mausoleum for george washington; and having agreed to the amendment reported by the committee, and filled up one of the blanks, _ordered_, that this bill pass to third reading as amended. wednesday, february . _mausoleum for washington._ the senate took into consideration the amendment reported by the committee, on the bill for erecting a mausoleum for george washington; which was agreed to. and on the final passage of the bill as amended, the question was determined in the affirmative--yeas , nays , as follows: yeas.--messrs. anderson, armstrong, baldwin, bloodworth, brown, chipman, dayton, t. foster, dwight foster, franklin, greene, hillhouse, howard, langdon, livermore, marshall, s. t. mason, nicholas, paine, and schureman. nays.--messrs. bingham, cocke, gunn, hindman, latimer, j. mason, morris, read, and ross. so it was _resolved_, that this bill pass with amendments. monday, february . _counting votes for president of the united states._ on motion, it was _resolved_, that the senate will be ready to receive the house of representatives in the senate chamber on wednesday next, at twelve o'clock, for the purpose of being present at the opening and counting the votes for president of the united states. that one person be appointed a teller on the part of the senate, to make a list of the votes for president of the united states, as they shall be declared: that the result shall be delivered to the president of the senate, who shall announce the state of the vote, which shall be entered on the journals, and if it shall appear that a choice has been made, agreeably to the constitution, such entry on the journals shall be deemed a sufficient declaration thereof. _ordered_, that the secretary notify the house of representatives of this resolution. tuesday, february . on motion that when the two houses shall proceed to opening and counting the votes for president of the united states, no person shall be admitted into the gallery, it passed in the affirmative--yeas , nays , as follows: yeas.--messrs. brown, chipman, dayton, t. foster, dwight foster, hillhouse, hindman, latimer, j. mason, morris, paine, read, ross, schureman, tracy, and wells. nays.--messrs. anderson, baldwin, bloodworth, cocke, franklin, langdon, livermore, marshall, s. t. mason, and nicholas. a message was received from the house of representatives informing the senate that they have passed a resolution, which the clerk was directed to bring to the senate. the resolution was read, as follows: "_resolved_, that this house will attend in the chamber of the senate on wednesday next, at o'clock, for the purpose of being present at the opening and counting of the votes for president and vice president of the united states; that messrs. rutledge and nicholas be appointed tellers, to act jointly with the teller appointed on the part of the senate, to make a list of the votes for president and vice president of the united states, as they shall be declared; that the result shall be delivered to the president of the senate, who shall announce the state of the vote, which shall be entered on the journals, and if it shall appear that a choice has been made, agreeably to the constitution, such entry on the journals shall be deemed a sufficient declaration thereof." _ordered_, that mr. wells be a teller on the part of the senate for the purpose expressed in the above resolution. wednesday, february . _ordered_, that the secretary notify the house of representatives that the senate is ready to meet them in the senate chamber, for the purpose of being present at the opening and counting the votes for president of the united states. the two houses of congress accordingly assembled in the senate chamber, and the certificates of the electors of sixteen states were, by the vice president, opened and delivered to the tellers appointed for the purpose, who, having examined and ascertained the number of votes, presented a list thereof to the vice president, which was read. (_for list see table on next page._) whereupon the vice president declared that the result of the votes, as delivered by the tellers, was that thomas jefferson, of va., had aaron burr, of n. y., had john adams, of mass., had chas. c. pinckney, of s. c., had john jay, of n. y., had ---------------+---------+---------+---------+----------+---------+ states. |thomas | aaron | john |charles c.| john | |jefferson| burr | adams |pinckney | jay. | ---------------+---------+---------+---------+----------+---------+ new hampshire | - | - | | | | massachusetts | - | - | | | | rhode island | - | - | | | | connecticut | - | - | | | | vermont | - | - | | | | new york | | | | | | new jersey | - | - | | | | pennsylvania | | | | | | delaware | - | - | | | | maryland | | | | | | virginia | | | | | | kentucky | | | | | | north carolina | | | | | | tennessee | | | | | | south carolina | | | | | | georgia | | | | | | | -- | -- | -- | -- | -- | | | | | | | ---------------+---------+---------+---------+----------+---------+ the whole number of electors who had voted were one hundred and thirty-eight, of which number thomas jefferson and aaron burr had a majority; but the number of those voting for them being equal, no choice was made by the people; and that, consequently, the remaining duties devolve on the house of representatives. on which, the house of representatives repaired to their own chamber; and the senate adjourned. monday, february . _public property._ the following message was received from the president of the united states: _gentlemen of the senate, and gentlemen of the house of representatives_: i wish to know the pleasure of congress, and request their direction, concerning the disposition of the property of the united states now in my possession; whether i shall deliver it into the hands of the heads of departments, or of the commissioners of the city of washington, or of a committee of congress, or to any other persons congress may appoint, to be delivered into the hands of my successor, or whether i shall present it myself to the president of the united states on the th of march next. any of these modes will be agreeable to me. john adams. united states, _feb_. , . the message was read and ordered to lie on the table. the vice president communicated a letter from james schureman, a senator from the state of new jersey, resigning his seat; which was read. _resolved_, that the vice president be requested to notify the executive of the state of new jersey that james schureman hath resigned his seat in the senate. wednesday, february . a message from the house of representatives informed the senate that the house have chosen thomas jefferson, of virginia, president of the united states, for the term commencing on the th of march next. on motion, it was _resolved_, that a committee be appointed, to join such committee as may be appointed on the part of the house of representatives, to consider whether any, and, if any, what measures ought to be adopted for the further accommodation of the president of the united states, for the term commencing the th day of march next, to report by bill, bills, or otherwise; and that messrs. nicholas, tracy, and baldwin, be the committee on the part of the senate. _notification of election to aaron burr._ on motion, it was _resolved_, that the president of the united states be requested to cause to be transmitted to aaron burr, esq., of new york, vice president elect of the united states, notification of his election to that office, and that the president of the senate do make out and sign a certificate, in the words following, viz: "be it known, that the senate and house of representatives of the united states of america, being convened at the city of washington, on the second wednesday in february, a. d. , the underwritten vice president of the united states and president of the senate, did, in presence of said senate and house of representatives, open all the certificates and count all the votes of the electors for a president; whereupon it appeared that thomas jefferson, of virginia, and aaron burr, of new york, had a majority of the votes of the electors and an equal number of votes; in consequence of which the house of representatives proceeded to the choice of a president, and have this day notified to the senate that thomas jefferson has by them been duly chosen president: by all of which it appears that aaron burr, esq., of new york, is duly elected, agreeably to the constitution, vice president of the united states of america. "in witness thereof i have hereunto set my hand and seal, this th day of february, . "thomas jefferson." and that the president of the senate do cause the certificate aforesaid to be laid before the president of the united states, with this resolution. monday, february . mr. pinckney, a senator for the state of south carolina, attended. thursday, february . the bill to prohibit the secretary of the navy from carrying on any business of trade, commerce, or navigation, was read the second time, and referred to messrs. langdon, nicholas, and dayton, to consider and report thereon. saturday, february . _retiring of the vice president._ the vice president addressed the senate as follows: _gentlemen of the senate_: to give the usual opportunity of appointing a president, _pro tempore_, i now propose to retire from the chair of the senate; and, as the time is near at hand when the relations will cease which have for some time subsisted between this honorable house and myself, i beg leave, before i withdraw, to return them my grateful thanks for all the instances of attention and respect with which they have been pleased to honor me. in the discharge of my functions here, it has been my conscientious endeavor to observe impartial justice, without regard to persons or subjects; and if i have failed of impressing this on the mind of the senate, it will be to me a circumstance of the deepest regret. i may have erred at times--no doubt i have erred--this is the law of human nature. for honest errors, however, indulgence may be hoped. i owe to truth and justice, at the same time, to declare, that the habits of order and decorum, which so strongly characterize the proceedings of the senate, have rendered the umpirage of their president an office of little difficulty; that, in times and on questions which have severely tried the sensibilities of the house, calm and temperate discussion has rarely been disturbed by departures from order. should the support which i have received from the senate, in the performance of my duties here, attend me into the new station to which the public will has transferred me, i shall consider it as commencing under the happiest auspices. with these expressions of my dutiful regard to the senate as a body, i ask leave to mingle my particular wishes for the health and happiness of the individuals who compose it, and to tender them my cordial and respectful adieu. after which the vice president retired. whereupon the senate proceeded to the election of a president _pro tempore_, as the constitution provides; and james hillhouse was duly elected. _ordered_, that the address of the vice president, made this day, taking leave of the senate, be referred to a committee, with instruction to prepare and report the draft of an address in answer thereto; and that messrs. morris, j. mason, and dayton, be the committee. monday, march . _answer to the vice president's valedictory._ mr. morris, from the committee appointed the th ultimo, on the address of the vice president, made, on his taking leave of the senate, reported an answer thereto, which was read, as follows: sir: while we congratulate you on those expressions of the public will, which called you to the first office in the united states, we cannot but lament the loss of that intelligence, attention, and impartiality, with which you have presided over our deliberations. the senate feel themselves much gratified by the sense you have been pleased to express of their support in the performance of your late duties. be persuaded that it will never be withheld from a chief magistrate, who, in the exercise of his office, shall be influenced by a due regard to the honor and interests of our country. in the confidence that your official conduct will be directed to these great objects, a confidence derived from past events, we repeat to you, sir, the assurance of our constitutional support in your future administration. on the motion to strike out these words: "a confidence derived from past events," it passed in the negative--yeas , nays , as follows: yeas.--messrs. chipman, hindman, howard, livermore, paine, read, ross, tracy, and wells. nays.--messrs. anderson, armstrong, baldwin, bloodworth, brown, cocke, dayton, t. foster, d. foster, franklin, greene, gunn, hillhouse, marshall, s. t. mason, j. mason, morris, nicholas, and pinckney. and the report was agreed to. _ordered_, that the committee who drafted the answer to the address, wait on the president elect of the united states, and present it to him. the president laid before the senate a letter from the president elect of the united states; which was read, as follows: washington, _march , _. sir: i beg leave, through you, to inform the honorable the senate of the united states, that i propose to take the oath which the constitution prescribes to the president of the united states, before he enters on the execution of his office, on wednesday, the th instant, at o'clock, in the senate chamber. i have the honor to be, with the greatest respect, sir, your most obedient and most humble servant, th. jefferson. the president _pro tempore of the senate_. _ordered_, that the foregoing letter be referred to messrs. morris, dayton, and ross, to report thereon. _ordered_, that the committee who were appointed to take into consideration the letter from the president elect of the united states, of this day, be discharged. a motion was made as follows: the president elect of the united states having informed the senate that he proposes to take the oath which the constitution prescribes to the president of the united states before he enters on the execution of his office, on wednesday, the th instant, at o'clock, in the senate chamber: _ordered_, that the secretary communicate that information to the house of representatives; that seats be provided for such members of the house of representatives and such of the public ministers as may think proper to attend; and that the gallery be opened to the citizens of the united states. and the motion was agreed to. tuesday, march . _mausoleum for washington._ the senate took into consideration the amendments to the amendments on the bill to erect a mausoleum for george washington; and on motion to postpone the further consideration of this bill until the first monday in december next, it passed in the affirmative--yeas , nays , as follows: yeas.--messrs. anderson, armstrong, baldwin, brown, cocke, gunn, hindman, j. mason, morris, pinckney, read, ross, tracy, and wells. nays.--messrs. bloodworth, chipman, dayton, t. foster, franklin, greene, hillhouse, howard, langdon, livermore, marshall, nicholas, and paine. the bill to prohibit the secretary of the navy from being concerned in trade or commerce, was read the third time and passed. mr. nicholas, from the committee on the bill providing for a naval peace establishment, reported amendments, which, being agreed to, the bill was read the third time by unanimous consent, and passed. mr. morris, from the committee appointed to wait on the president elect of the united states, and present him with the answer of the senate to his address on taking leave, communicated his reply, which was read as follows: gentlemen: i receive with due sensibility the congratulations of the senate on being called to the first executive office of our government; and i accept, with great satisfaction, their assurances of support in whatever regards the honor and interest of our country. knowing no other object in the discharge of my public duties, their confidence in my future conduct, derived from past events, shall not be disappointed, so far as my judgment may enable me to discern those objects. the approbation they are so good as to express of my conduct in the chair of the senate, is highly gratifying to me; and i pray them to accept my humble thanks for these declarations of it. th. jefferson. march, , . tuesday evening, o'clock. aaron ogden, appointed a senator by the legislature of the state of new jersey, in place of james schureman, resigned, produced his credentials, was qualified, and took his seat in the senate. _adjournment._ a message from the house of representatives informed the senate that the house concur in the resolution of the senate appointing a joint committee to wait on the president of the united states, and notify him of the proposed adjournment of the two houses of congress, and have appointed a committee on their part. and that the house of representatives, having completed the business before them, are about to adjourn without day. mr. read reported, from the joint committee, that they had waited on the president of the united states and that he replied, that he had nothing further to communicate to congress, except his best wishes for the health and happiness of its members respectively. the senate then adjourned without day. special session. wednesday, march , . _to the senators of the united states, respectively_: sir: it appearing to me proper and necessary for the public service, that the senate of the united states should be convened on wednesday the th of march next, you are desired to attend in the chamber of the senate on that day, at o'clock in the forenoon, to receive and act upon any communications which the president of the united states may then lay before you touching their interests, and to do and consider all other things which may be proper and necessary for the public service, for the senate to do and consider. john adams, _president of the united states_. january , . in conformity to the summons from the president of the united states above recited, the senate assembled in their chamber. present: aaron burr, vice president of the united states, and president of the senate. samuel livermore, and james sheafe, from new hampshire. dwight foster, and jonathan mason, from massachusetts. theodore foster and ray greene, from rhode island. uriah tracy and james hillhouse, from connecticut. nathaniel chipman, from vermont. gouverneur morris and john armstrong, from new york. jonathan dayton and aaron ogden, from new jersey. james ross and peter muhlenberg, from pennsylvania. william hill wells and samuel white, from delaware. john e. howard, from maryland. stevens t. mason and wilson cary nicholas, from virginia. john brown, from kentucky. jesse franklin and david stone, from north carolina. joseph anderson and william cocke, from tennessee. charles pinckney, from south carolina. abraham baldwin, from georgia. mr. hillhouse administered the oath of office to the vice president, who took the chair, and the credentials of the following members were read: of mr. armstrong, mr. muhlenberg, mr. sheafe, mr. stone, mr. tracy, and mr. white. and the oath of office was administered to mr. armstrong, mr. muhlenberg, mr. sheafe, mr. stone, and mr. white, by the vice president. exception being taken to the credentials of the hon. mr. tracy, a senator from the state of connecticut, a debate ensued; and, on motion that he be admitted to take the oath required by the constitution, it passed in the affirmative--yeas , nays , as follows: yeas.--messrs. chipman, dayton, dwight foster, hillhouse, howard, livermore, j. mason, morris, ogden, ross, sheafe, wells, and white. nays.--messrs. anderson, armstrong, baldwin, brown, cocke, s. t. mason, muhlenberg, nicholas, pinckney, and stone. and the oath was accordingly administered to mr. tracy by the vice president. the president of the united states, attended by the heads of departments, the marshal of the district, his officers and other gentlemen, came into the senate chamber and took his seat in the chair usually occupied by the vice president. the vice president took a separate seat on the right of the president of the united states, and the chief justice of the united states on the left. after a short pause, the president of the united states rose, and addressed the audience as follows: _friends and fellow-citizens_: called upon to undertake the duties of the first executive office of our country, i avail myself of the presence of that portion of my fellow-citizens which is here assembled, to express my grateful thanks for the favor with which they have been pleased to look towards me, to declare a sincere consciousness that the task is above my talents, and that i approach it with those anxious and awful presentiments which the greatness of the charge, and the weakness of my powers, so justly inspire. a rising nation spread over a wide and fruitful land, traversing all the seas with the rich productions of their industry, engaged in commerce with nations who feel power and forget right, advancing rapidly to destinies beyond the reach of mortal eye; when i contemplate these transcendent objects, and see the honor, the happiness, and the hopes, of this beloved country committed to the issue and the auspices of this day, i shrink from the contemplation, and humble myself before the magnitude of the undertaking. utterly indeed should i despair, did not the presence of many whom i here see remind me, that, in the other high authorities provided by our constitution, i shall find resources of wisdom, of virtue, and of zeal, on which to rely under all difficulties. to you, then, gentlemen, who are charged with the sovereign functions of legislation, and to those associated with you, i look with encouragement for that guidance and support which may enable us to steer with safety the vessel in which we are all embarked, amidst the conflicting elements of a troubled world. during the contest of opinion through which we have passed, the animation of discussions and of exertions has sometimes worn an aspect which might impose on strangers unused to think freely, and to speak and to write what they think; but this being now decided by the voice of the nation, announced according to the rules of the constitution, all will of course arrange themselves under the will of the law, and unite in common efforts for the common good. all too will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression. let us then, fellow-citizens, unite with one heart and one mind, let us restore to social intercourse that harmony and affection without which, liberty, and even life itself, are but dreary things. and let us reflect, that, having banished from our land that religious intolerance under which mankind so long bled and suffered, we have yet gained little, if we countenance a political intolerance, as despotic, as wicked, and capable of as bitter and bloody persecutions. during the throes and convulsions of the ancient world, during the agonizing spasms of infuriated man, seeking through blood and slaughter his long lost liberty, it was not wonderful that the agitation of the billows should reach even this distant and peaceful shore; that this should be more felt and feared by some and less by others; and should divide opinions as to measures of safety; but every difference of opinion is not a difference of principle. we have called by different names brethren of the same principle. we are all republicans: we are all federalists. if there be any among us who would wish to dissolve this union, or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated, where reason is left free to combat it. i know indeed that some honest men fear that a republican government cannot be strong; that this government is not strong enough. but would the honest patriot, in the full tide of successful experiment, abandon a government which has so far kept us free and firm, on the theoretic and visionary fear that this government, the world's best hope, may, by possibility, want energy to preserve itself? i trust not. i believe this, on the contrary, the strongest government on earth. i believe it the only one where every man, at the call of the law, would fly to the standard of the law, and would meet invasions of the public order as his own personal concern. sometimes it is said that man cannot be trusted with the government of himself. can he then be trusted with the government of others? or have we found angels in the form of kings to govern him? let history answer this question. let us then, with courage and confidence, pursue our own federal and republican principles; our attachment to union and representative government. kindly separated by nature and a wide ocean from the exterminating havoc of one quarter of the globe; too high-minded to endure the degradations of the others; possessing a chosen country, with room enough for our descendants to the thousandth and thousandth generation; entertaining a due sense of our equal right to the use of our own faculties, to the acquisitions of our own industry, to honor and confidence from our fellow-citizens, resulting not from birth, but from our actions and their sense of them; enlightened by a benign religion, professed indeed and practised in various forms, yet all of them inculcating honesty, truth, temperance, gratitude, and the love of man, acknowledging and adoring an overruling providence, which, by all its dispensations, proves that it delights in the happiness of man here and his greater happiness hereafter; with all these blessings, what more is necessary to make us a happy and a prosperous people? still one thing more, fellow-citizens--a wise and frugal government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. this is the sum of good government; and this is necessary to close the circle of our felicities. about to enter, fellow-citizens, on the exercise of duties which comprehend every thing dear and valuable to you, it is proper you should understand what i deem the essential principles of our government, and consequently those which ought to shape its administration. i will compress them within the narrowest compass they will bear, stating the general principle, but not all its limitations. equal and exact justice to all men, of whatever state or persuasion, religious or political: peace, commerce, and honest friendship with all nations, entangling alliances with none: the support of the state governments in all their rights, as the most competent administrations for our domestic concerns, and the surest bulwarks against anti-republican tendencies: the preservation of the general government in its whole constitutional vigor, as the sheet-anchor of our peace at home, and safety abroad: a jealous care of the right of election by the people; a mild and safe corrective of abuses which are lopped by the sword of revolution, where peaceable remedies are unprovided: absolute acquiescence in the decisions of the majority, the vital principle of republics, from which is no appeal but to force, the vital principle and immediate parent of despotism: a well-disciplined militia, our best reliance in peace, and for the first moments of war, till regulars may relieve them: the supremacy of the civil over the military authority--economy in the public expense, that labor may be lightly burdened: the honest payment of our debts, and sacred preservation of the public faith: encouragement of agriculture, and of commerce as its handmaid: the diffusion of information, and arraignment of all abuses at the bar of the public reason: freedom of religion, freedom of the press, and freedom of person, under the protection of the habeas corpus; and trial by juries impartially selected. these principles form the bright constellation which has gone before us, and guided our steps through an age of revolution and reformation. the wisdom of our sages, and blood of our heroes, have been devoted to their attainment: they should be the creed of our political faith; the text of civic instruction; the touchstone by which to try the services of those we trust; and should we wander from them in moments of error or of alarm, let us hasten to retrace our steps, and to regain the road which alone leads to peace, liberty, and safety. i repair then, fellow-citizens, to the post you have assigned me. with experience enough in subordinate offices to have seen the difficulties of this, the greatest of all, i have learnt to expect that it will rarely fall to the lot of imperfect man to retire from this station with the reputation and the favor which bring him into it. without pretensions to that high confidence you reposed in our first and greatest revolutionary character, whose pre-eminent services had entitled him to the first place in his country's love, and destined for him the fairest page in the volume of faithful history, i ask so much confidence only as may give firmness and effect to the legal administration of your affairs. i shall often go wrong through defect of judgment. when right, i shall often be thought wrong by those whose positions will not command a view of the whole ground. i ask your indulgence for my own errors, which will never be intentional; and your support against the errors of others, who may condemn what they would not, if seen in all its parts. the approbation implied by your suffrage is a great consolation to me for the past; and my future solicitude will be, to retain the good opinion of those who have bestowed it in advance, to conciliate that of others by doing them all the good in my power, and to be instrumental to the happiness and freedom of all. relying then on the patronage of your good will, i advance with obedience to the work, ready to retire from it whenever you become sensible how much better choices it is in your power to make. and may that infinite power which rules the destinies of the universe lead our councils to what is best, and give them a favorable issue for your peace and prosperity. the oath of office was then administered to him by the chief justice of the united states. after which the president of the united states retired. the senate then adjourned till to-morrow. thursday, march . william hindman, appointed a senator by the state of maryland, produced his credentials, and the oath of office was administered to him by the vice president. _ordered_, that messrs. nicholas and baldwin be a committee to wait on the president of the united states and notify him that the senate is assembled and ready to receive any communications which he may be pleased to make to them. the vice president communicated a letter from ray greene, a senator from the state of rhode island, resigning his seat; which was read. _resolved_, that the vice president be requested to notify to the executive of the state of rhode island, that ray greene hath resigned his seat in the senate. mr. nicholas reported, from the committee, that they had waited on the president of the united states and that he had informed the committee that he would immediately lay a message before the senate. the message was received, containing nominations to fill executive offices; which, after being considered, _ordered_, that messrs. nicholas and baldwin be a committee to wait on the president of the united states, and notify him, that, unless he has any further communication to make, the senate are ready to adjourn. mr. nicholas reported, from the committee, that they had waited on the president of the united states, and that he had informed them that he had no further communications to make to the senate. whereupon, the vice president adjourned the senate without day. proceedings in the senate, in secret session, which took place on the ratification of the convention with the french republic tuesday, december , . the following message was received from the president of the united states: _gentlemen of the senate_: i transmit to the senate, for their consideration and decision, a convention, both in english and french, between the united states of america and the french republic, signed at paris, on the thirtieth day of september last, by the respective plenipotentiaries of the two powers. i also transmit to the senate, three manuscript volumes, containing the journal of our envoys. john adams. united states, _dec. , _. the message and convention were read; and after progress in reading the other papers accompanying the message, _ordered_, that the further reading thereof be postponed. friday, december . the senate proceeded to consider the motion, made yesterday, that the president of the united states be requested to lay before the senate the instructions given to our late commissioners to the french republic; which, being amended, was adopted, as follows: _resolved_, that the president of the united states be requested to lay before the senate the instructions given to our late envoys extraordinary and ministers plenipotentiary to the french republic. _ordered_, that the secretary lay this resolution before the president of the united states. monday, december . the following message was received from the president of the united states. _gentlemen of the senate_: in conformity with your request, in your resolution of the th of this month, i transmit you the instructions given to our late envoys extraordinary and ministers plenipotentiary to the french republic. it is my request to the senate that these instructions may be considered in strict confidence, and returned to me as soon as the senate shall have made all the use of them they may judge necessary. john adams. united states, _dec. , _. on motion, _resolved_, that all confidential communications made by the president of the united states to the senate, shall be, by the members thereof, kept inviolably secret; and that all treaties which may hereafter be laid before the senate, shall also be kept secret, until the senate shall, by their resolution, take off the injunction of secrecy. thursday, january , . the senate resumed the consideration of the convention made on behalf of the united states with the republic of france. and the second article having been debated, a question was moved thereon, to wit: "will the senate advise and consent to the ratification of this article?" and the yeas and nays being taken, are as follows--yeas , nays : yeas.--messrs. baldwin, bloodworth, brown, cocke, t. foster, franklin, greene, langdon, s. t. mason, nicholas, and paine. nays.--messrs. armstrong, chipman, dayton, d. foster, gunn, hillhouse, hindman, howard, latimer, livermore, j. mason, morris, read, schureman, tracy, and wells. so it passed in the negative. and the third article being under consideration, a question was moved and put, "will the senate advise and consent to the ratification of this article?" and the yeas and nays being taken, are as follows--yeas , nays : yeas.--messrs. armstrong, baldwin, bloodworth, brown, cocke, t. foster, franklin, greene, gunn, langdon, s. t. mason, and nicholas. nays.--messrs. chipman, dayton, d. foster, hillhouse, hindman, howard, latimer, livermore, j. mason, morris, paine, read, schureman, tracy, and wells. so it passed in the negative. the senate proceeded in the consideration of the convention, so far as the fourteenth article; and, after debate, _ordered_, that the further consideration thereof be postponed. friday, january . the senate resumed the consideration of the convention made on behalf of the united states with the republic of france. on motion, to advise and consent to the adoption of an additional article, to wit: "it is further agreed, between the said contracting parties, that nothing in this treaty contained, shall be construed or operate contrary to former and existing treaties with other states or sovereigns." and, on the question, "will the senate advise and consent to the adoption of this article?" it passed unanimously in the affirmative--yeas , as follows: yeas.--messrs. anderson, armstrong, baldwin, bloodworth, brown, chipman, cocke, dayton, d. foster, franklin, greene, gunn, hillhouse, hindman, howard, langdon, latimer, livermore, s. t. mason, j. mason, morris, nicholas, paine, read, schureman, tracy, and wells. on motion, to advise and consent to the adoption of the following additional article, to wit: "the present convention shall be in full force during the term of ---- years, to be computed from the time of the exchange of the ratifications." and, after debate, _ordered_, that the further consideration thereof be postponed. monday, january . the senate resumed the consideration of the convention made on behalf of the united states with the republic of france; and the motion made on the th instant, being amended as follows: the present convention shall be in full force until two years, to be computed from the day of the signature of the preliminary or other articles of peace, which shall conclude the war in which the french nation is now engaged, or for a term not exceeding ---- years, to be computed from the time of the exchange of the ratifications, whichever event shall first happen. on the question, "will the senate advise and consent to the adoption of this article?" it was determined in the affirmative--yeas , nay , as follows: yeas.--messrs. anderson, armstrong, baldwin, bingham, bloodworth, brown, chipman, cocke, dayton, t. foster, d. foster, franklin, greene, hillhouse, hindman, howard, latimer, livermore, morris, nicholas, paine, read, schureman, tracy, and wells. nay.--mr. langdon. thursday, january . the senate resumed the consideration of the convention made on behalf of the united states with the republic of france: whereupon, the vice president reported to the house, that the senate, as in a committee of the whole, had had under their consideration the convention, and had gone through the same, and had agreed to sundry modifications, which he proceeded to state to the house, and again to put questions thereon, severally, for confirmation, as follows: on the question, whether the senate would advise and consent to the ratification of the second article of the convention? it passed in the negative--yeas , nays , as follows: yeas.--messrs. anderson, baldwin, bloodworth, cocke, t. foster, franklin, langdon, marshall, nicholas, and paine. nays.--messrs. bingham, chipman, dayton, d. foster, hillhouse, howard, latimer, livermore, j. mason, morris, read, ross, schureman, tracy, and wells. on the question whether the senate would advise and consent to the ratification of the third article of the convention? a motion was made to amend the article, by adding to the end thereof, these words, "or paid for." whereupon, a motion was made to amend the amendment by adding thereto the following words: "and so likewise, the merchant ships and vessels which have been taken, and definitively condemned on the one part and the other, shall be restored or paid for." on the question to agree to the amendment to the amendment, it passed in the negative--yeas , nays , as follows: yeas.--messrs. d. foster, hillhouse, howard, latimer, livermore, read, tracy, and wells. nays.--messrs. anderson, armstrong, baldwin, bingham, bloodworth, brown, chipman, cocke, dayton, t. foster, franklin, langdon, marshall, s. t. mason, j. mason, morris, nicholas, paine, ross, and schureman. so the amendment to the amendment was lost. on the question to agree to the original amendment, to wit: to add the words "or paid for;" it passed in the negative--yeas , nays , as follows: yeas.--messrs. anderson, armstrong, brown, baldwin, cocke, s. t. mason, and nicholas. nays.--messrs. bingham, bloodworth, chipman, dayton, t. foster, d. foster, franklin, hillhouse, howard, langdon, latimer, livermore, marshall, j. mason, morris, paine, read, ross, schureman, tracy, and wells. so the amendment was lost. on the question, whether the senate would advise and consent to the ratification of the third article? it passed in the negative--yeas , nays , as follows: yeas.--messrs. anderson, armstrong, baldwin, bloodworth, brown, cocke, t. foster, franklin, greene, langdon, marshall, s. t. mason, and nicholas. nays.--messrs. bingham, chipman, dayton, d. foster, hillhouse, howard, latimer, livermore, j. mason, morris, paine, read, ross, schureman, tracy, and wells. on the question, whether the senate would advise and consent to the adoption of the first additional article, agreed to as in committee of the whole, on the th instant? it passed unanimously in the affirmative--yeas , as follows: yeas.--messrs. anderson, armstrong, baldwin, bingham, bloodworth, brown, chipman, cocke, dayton, t. foster, d. foster, franklin, greene, hillhouse, howard, langdon, latimer, livermore, s. t. mason, j. mason, morris, nicholas, paine, read, ross, schureman, tracy, and wells. on motion to fill the blank in the second additional article, agreed to as in committee of the whole, with the words, "ten years;" it passed in the negative--yeas , nays , as follows: yeas.--messrs. baldwin, bloodworth, brown, cocke, t. foster, franklin, langdon, s. t. mason, and nicholas. nays.--messrs. anderson, armstrong, bingham, chipman, dayton, d. foster, greene, hillhouse, howard, latimer, livermore, j. mason, morris, paine, read, ross, schureman, tracy, and wells. on motion to fill the blank with the words "eight years," it passed unanimously in the affirmative--yeas , as follows: yeas.--messrs. anderson, armstrong, baldwin, bingham, bloodworth, brown, chipman, cocke, dayton, t. foster, d. foster, franklin, greene, hillhouse, howard, langdon, latimer, livermore, s. t. mason, j. mason, morris, nicholas, paine, read, ross, schureman, tracy, and wells. on motion to amend the second additional article agreed to as in committee of the whole, by striking out these words, "until two years, to be computed from the day of the signature of the preliminary or other articles of peace, which shall conclude the war in which the french nation is now engaged." and, on the question, "shall these words stand?" it passed in the negative--yeas , nays , as follows: yeas.--messrs. livermore, paine, read, and tracy. nays.--messrs. anderson, armstrong, baldwin, bloodworth, brown, chipman, cocke, dayton, t. foster, d. foster, franklin, greene, hillhouse, howard, langdon, latimer, marshall, s. t. mason, j. mason, morris, nicholas, schureman, and wells. and the article having been further amended, by unanimous consent, to read as follows: "the present convention shall be in full force for the term of eight years, to be computed from the time of the exchange of the ratifications." on the question, whether the senate would advise and consent to the said additional article, as amended? it passed in the affirmative--yeas , nay , as follows: yeas.--messrs. anderson, armstrong, baldwin, bloodworth, brown, chipman, cocke, dayton, t. foster, d. foster, franklin, greene, hillhouse, howard, langdon, latimer, marshall, s. t. mason, j. mason, morris, nicholas, paine, read, schureman, tracy, and wells. nay.--mr. livermore. _ordered_, that mr. morris, mr. nicholas, and mr. dayton, be a committee to reduce the several votes on this treaty into the form of a ratification. wednesday, january . the following message was received from the president of the united states: _gentlemen of the senate_: in compliance with your request, signified in your resolution of the twentieth day of this month, i transmit you a report, made to me by the secretary of state, on the same day; a letter of our late envoys to him on the th of october last; an extract of a letter from our minister plenipotentiary in london, to him, of the d of november last; and an extract of another letter from the minister to the secretary, of the st of october last. the reasoning in the letter of our late envoys to france is so fully supported by the writers on the law of nations, particularly by vattel, as well as by his great masters, grotius and puffendorf, that nothing is left to be desired to settle the point, that if there be a collision between two treaties, made with two different powers, the more ancient has the advantage; for no engagement contrary to it can be entered into in the treaty afterwards made; and if this last be found, in any case, incompatible with the more ancient one, its execution is considered as impossible, because the person promising had not the power of acting contrary to his antecedent engagement. although our right is very clear to negotiate treaties according to our own ideas of right and justice, honor and good faith, yet it must always be a satisfaction to know that the judgment of other nations with whom we have connection, coincides with ours, and that we have no reason to apprehend that any disagreeable questions and discussions are likely to arise. the letters from mr. king will, therefore, be read by the senate, with particular satisfaction. the inconveniences to public officers and the mischiefs to the public, arising from the publication of the despatches of ministers abroad, are so numerous, and so obvious, that i request of the senate that these papers, especially the letters from mr. king, be considered in close confidence. john adams. united states, _jan. , _. the message and papers were read, and ordered to lie for consideration. the senate resumed the consideration of the report of the committee appointed to reduce the several votes on the convention made on behalf of the united states with the republic of france, into the form of a ratification, together with the motion made yesterday thereon, to wit: to amend the proviso, by inserting after the word "third," the words "and nineteenth." and, on the question, to agree to the insertion of the words, it was determined in the negative--yeas , nays , as follows: yeas.--messrs. bingham, hillhouse, read, ross, tracy, and wells. nays.--messrs. anderson, armstrong, baldwin, bloodworth, brown, chipman, cocke, dayton, t. foster, d. foster, franklin, greene, howard, langdon, latimer, livermore, s. t. mason, j. mason, morris, nicholas, paine, and schureman. _ordered_, that the further consideration of the convention, and the report of the committee thereon, be postponed until friday next. friday, january . the senate resumed the consideration of the report of the committee appointed to reduce the several votes on the convention made on behalf of the united states with the republic of france, into the form of a ratification, which report is as follows: _resolved by the senate of the united states_, (two-thirds of the senators present concurring therein,) that they do consent to and advise the ratification of the convention between the french republic and the united states of america, made at paris the eighth day of vendemaire, of the ninth year of the french republic, the thirtieth day of september, anno domini eighteen hundred: _provided_, the second and third articles be expunged, and that the following articles be added or inserted: st. it is understood that nothing in this convention shall be so construed as to operate contrary to any former and existing treaties between either of the parties and any other state or sovereign. d. it is agreed that the present convention shall be in force for the term of eight years from the time of the exchange of the ratifications. whereupon a motion was made to strike out the whole of the proviso; on which it was agreed to divide the question into four parts, viz: st. whether so much as provides that the second article shall be expunged, shall stand? d. whether so much as provides that the third article be expunged, shall stand? d. whether that part shall stand which restrains it from operating against former treaties? th. whether that part shall stand which provides a limitation of time to its duration? and, on the question on the first division, to wit: whether so much as provides that the second article shall be expunged, shall stand? it passed in the negative, two-thirds of the senators present not agreeing thereto--yeas , nays , as follows: yeas.--messrs. armstrong, bingham, chipman, dayton, d. foster, hillhouse, hindman, howard, latimer, j. mason, morris, paine, read, ross, schureman, tracy, and wells. nays.--messrs. anderson, baldwin, bloodworth, brown, cocke, t. foster, franklin, greene, langdon, livermore, marshall, s. t. mason, and nicholas. and on the question on the second division, to wit: whether so much as provides that the third article shall be expunged, shall stand? it passed in the negative, two-thirds of the senators present not agreeing thereto--yeas , nays , as follows: yeas.--messrs. bingham, chipman, dayton, d. foster, hillhouse, hindman, howard, latimer, j. mason, morris, paine, read, ross, schureman, tracy, and wells. nays.--messrs. anderson, armstrong, baldwin, bloodworth, brown, cocke, t. foster, franklin, greene, langdon, livermore, marshall, s. t. mason, and nicholas. and, on the question on the third division, to wit: whether that part shall stand which restrains it from operating against former treaties? it passed in the negative, two-thirds of the senators present not agreeing thereto--yeas , nays , as follows: yeas.--messrs. bingham, chipman, dayton, d. foster, greene, hillhouse, hindman, howard, latimer, j. mason, morris, paine, read, ross, schureman, tracy, and wells. nays.--messrs. anderson, armstrong, baldwin, bloodworth, brown, cocke, t. foster, franklin, langdon, livermore, marshall, s. t. mason, and nicholas. and, on the question on the fourth division, to wit: whether that part shall stand which provides a limitation of time to its duration? it was determined in the affirmative--yeas , nays , as follows: yeas.--messrs. anderson, armstrong, bingham, bloodworth, chipman, cocke, dayton, d. foster, franklin, greene, hillhouse, hindman, howard, langdon, latimer, livermore, j. mason, morris, paine, read, ross, schureman, tracy, and wells. nays.--messrs. baldwin, brown, t. foster, marshall, s. t. mason, and nicholas. and, on the question to agree to the report of the committee, as amended, it was determined in the negative, two-thirds of the senators present not agreeing thereto--yeas , nays , as follows: yeas.--messrs. anderson, armstrong, baldwin, bloodworth, brown, chipman, cocke, t. foster, franklin, greene, langdon, livermore, marshall, s. t. mason, nicholas, and paine. nays.--messrs. bingham, dayton, d. foster, hillhouse, hindman, howard, latimer, j. mason, morris, read, ross, schureman, tracy, and wells. tuesday, february . on motion, it was agreed to reconsider the vote passed the d of january, on the report of the committee appointed to reduce the several votes on the convention made on behalf of the united states with the french republic, into the form of a ratification. on motion, it was agreed to reconsider the first division of the report, to wit: "whether so much as provides that the second article shall be expunged, shall stand?" and, on the question to agree to this part of the report, it passed in the affirmative--yeas , nay , as follows: yeas.--messrs. anderson, armstrong, baldwin, bingham, bloodworth, brown, chipman, cocke, dayton, t. foster, d. foster, franklin, greene, gunn, hillhouse, hindman, howard, langdon, latimer, livermore, s. t. mason, j. mason, morris, nicholas, paine, read, ross, schureman, tracy, and wells. nay.--mr. marshall. on motion, it was agreed to reconsider the vote of the d of january, on the second division of the report, to wit: "whether so much as provides that the third article shall be expunged, shall stand?" and, on the question to agree thereto, it passed in the negative, two-thirds of the senators present not agreeing thereto--yeas , nays , as follows: yeas.--messrs. bingham, chipman, dayton, d. foster, greene, hillhouse, hindman, howard, latimer, livermore, j. mason, morris, paine, read, ross, schureman, tracy, and wells. nays.--messrs. anderson, armstrong, baldwin, bloodworth, brown, cocke, t. foster, franklin, gunn, langdon, marshall, s. t. mason, and nicholas. on the question to agree to the ratification, as follows: _resolved by the senate of the united states_, (two-thirds of the senators present concurring therein,) that they do consent to, and advise the ratification of the convention between the french republic and the united states of america, made at paris, the eighth day of vendemaire, of the ninth year of the french republic, the thirtieth day of september, anno domini, eighteen hundred: _provided_, the second article be expunged, and that the following article be added or inserted: it is agreed, that the present convention shall be in force for the term of eight years, from the time of the exchange of the ratifications. it passed in the affirmative--yeas , nays , as follows: yeas.--messrs. anderson, armstrong, baldwin, bloodworth, brown, chipman, cocke, dayton, t. foster, franklin, greene, gunn, hindman, howard, langdon, latimer, livermore, marshall, s. t. mason, nicholas, paine, and schureman. nays.--messrs. bingham, d. foster, hillhouse, j. mason, morris, read, ross, tracy, and wells. _ordered_, that the secretary lay this resolution before the president of the united states. friday, february . the following message was received from the president of the united states: _gentlemen of the senate_: i request of the senate, that the letter and journal of our late envoys to france, and the copy of their instructions, and other documents relative to that negotiation, may be returned to me, or to the office of state. john adams. united states, _feb. , _. the message was read: whereupon, _ordered_, that the papers specified in the message of the president of the united states, of this day, be returned to him. sixth congress.--second session. proceedings and debates in the house of representatives. monday, november , . this being the day appointed by law for the commencement of the second session of the sixth congress, the following members of the house of representatives appeared, and took their seats in the house, to wit: _from new hampshire._--abiel foster, and jonathan freeman. _from massachusetts._--william shepard, jno. read, joseph b. varnum, theodore sedgwick, (_speaker_,) peleg wadsworth, silas lee, and lemuel williams. _from connecticut._--john davenport. _from new york._--john smith, philip van cortlandt, jonas platt, henry glen, john thompson, and theodorus bailey. _from pennsylvania._--michael leib, richard thomas, joseph heister, robert brown, peter muhlenberg, henry woods, and john smilie. _from maryland._--george dent, geo. baer, william craik, gabriel christie, john c. thomas, and joseph h. nicholson. _from virginia._--leven powell, john nicholas, robert page, john dawson, anthony new, george jackson, and david holmes. _from north carolina._--nathaniel macon, richard stanford, and willis alston. _from south carolina._--thomas sumter, and benjamin huger. _from tennessee._--william c. c. claiborne. a new member, to wit, john c. smith, returned to serve as a member of this house, from the state of connecticut, in the room of jonathan brace, who has resigned his seat, appeared and produced his credentials. the speaker observed that it had heretofore been the invariable practice of the house to admit new members to take their seats previously to being sworn, though the constitution directed directly the reverse. as there was a new member present, he suggested the propriety of administering the oath to him before he took his seat. mr. macon thought such a step premature. he was of opinion that no inconvenience would arise from delaying to administer the oath until a house was formed, and he thought great caution should attend an innovation opposed to all precedent. mr. nicholas asked whether it had heretofore been usual, in the case of a new house, to swear the members before the choice of a speaker? the speaker replied that it had not. mr. nicholas said, that though, on first thought, he was favorable to administering the oath at the present time, yet this precedent inclined him to think such a step improper. the speaker waived the question. the members present not being sufficient to form a quorum, the speaker adjourned the body till to-morrow. tuesday, november . several other members, to wit: from connecticut, elizur goodrich, william edmond, and roger griswold; from new york, william cooper and lucas elmendorph; from new jersey, james h. imlay and franklin davenport; from pennsylvania, robert waln; from maryland, samuel smith; from virginia, henry lee, thomas evans, and john trigg; from north carolina, richard dobbs spaight, and joseph dickson; and from georgia, benjamin taliaferro, appeared and took their seats in the house. and a quorum, consisting of a majority of the whole number, being present, the oath to support the constitution of the united states, as prescribed by the act, entitled "an act to regulate the time and manner of administering certain oaths," was administered by the speaker to john c. smith, a new member, who appeared and took his seat in the house yesterday. _ordered_, that a message be sent to the senate to inform them that a quorum of this house is assembled, and ready to proceed to business; and that the clerk of this house do go with said message. wednesday, november . several other members, to wit: from vermont, lewis r. morris, and from virginia, josiah parker and john randolph, appeared, and took their seats in the house. thursday, november . two other members, to wit: from virginia, abram trigg, and from pennsylvania, andrew gregg, appeared, and took their seats in the house. friday, november . several other members, to wit, from massachusetts, george thatcher; from new jersey, john condit, aaron kitchell, and james linn; from pennsylvania, john a. hanna; and from south carolina, robert goodloe harper, appeared, and took their seats in the house. a message from the senate informed the house that a quorum of the senate is assembled, and ready to proceed to business, and that, in the absence of the vice president, they have elected the hon. john howard, president of the senate, _pro tempore_. _resolved_, that mr. griswold, mr. samuel smith, and mr. craik, be a committee, on the part of this house, jointly, with such committee as may be appointed on the part of the senate, to wait on the president of the united states, and notify him that a quorum of the two houses is assembled, and ready to receive any communications he may think proper to make to them. _ordered_, that the clerk of this house do acquaint the senate therewith. a message from the senate informed the house that the senate have appointed a committee jointly, with the committee appointed by this house, to wait on the president of the united states, and notify him that a quorum of the two houses is assembled, and ready to receive any communications he may think proper to make to them. mr. griswold, from the joint committee appointed to wait on the president of the united states, and notify him that a quorum of the two houses is assembled, and ready to receive any communications he may think proper to make to them, reported that the committee had performed that service, and that the president signified to them he would make a communication to both houses to-morrow at twelve o'clock, in the senate chamber. saturday, november . two other members, to wit: from north carolina, archibald henderson; and from virginia, edwin gray, appeared, and took their seats in the house. _president's speech._ a message from the senate informed the house that the senate are now ready, in the senate chamber, to attend this house in receiving the communication from the president of the united states, agreeably to his notification to both houses yesterday. mr. speaker, attended by the members of this house, then withdrew to the senate chamber, for the purpose stated in the senate's message; and, being returned, mr. speaker laid before the house a copy of the speech delivered by the president of the united states to both houses of congress, in the senate chamber. [see senate proceedings of this date, _ante_, page .] _ordered_, that the said speech be committed to a committee of the whole house immediately. the house, accordingly, resolved itself into the said committee; and, after some time spent therein, mr. speaker resumed the chair, and mr. harper reported that the committee had had the said speech under consideration, and come to a resolution thereupon; which was twice read, and agreed to by the house, as follows: _resolved_, that it is the opinion of this committee that a respectful address ought to be presented by the house of representatives to the president of the united states, in answer to his speech to both houses of congress, at the commencement of the present session, containing assurances that this house will duly attend to the important objects recommended by him to their consideration. _ordered_, that mr. griswold, mr. macon, mr. craik, mr. henderson, and mr. nicholas, be appointed a committee to prepare an address, pursuant to the said resolution. _ordered_, that the speech of the president of the united states be committed to the committee of the whole house on the state of the union. and then the house adjourned. monday, november . several other members, to wit: from massachusetts, harrison g. otis, and phanuel bishop; from virginia, matthew clay; and from north carolina, david stone, appeared, and took their seats in the house. william m'millan, returned to serve as a representative for the territory of the united states north-west of the ohio, in the room of william henry harrison, who has resigned his seat, appeared, produced his credentials, was qualified, and took his seat in the house. tuesday, november . another member, to wit, john wilkes kittera, from pennsylvania, appeared, was qualified, and took his seat in the house. a new member, to wit, nathan read, returned to serve as a member of this house from the state of massachusetts, in the room of samuel sewall, who has resigned his seat, appeared, produced his credentials, and took his seat in the house. wednesday, november . a new member, to wit, lyttleton w. tazewell, returned to serve as a member of the house for the state of virginia, in the room of john marshall, who has resigned his seat, appeared, produced his credentials, was qualified, and took his seat in the house. _address to the president._ the house went into a committee of the whole on the reply to the president's speech, which was read by paragraphs, and reported to the house without any amendments, as follows: to john adams, _president of the united states_: sir: the house of representatives have received with great respect the communication which you have been pleased to make to the two houses of congress, at the commencement of the present session. the final establishment of the seat of national government which has now taken place within the district of columbia, is an event of no small importance in the political transactions of our country: and we cordially unite our wishes with yours, that this territory may be the residence of happiness and virtue. nor can we, on this occasion, omit to express a hope, that the spirit which animated the great founder of this city, may descend to future generations, and that the wisdom, magnanimity, and steadiness, which marked the events of his public life, may be imitated in all succeeding ages. a consideration of those powers which have been vested in congress over the district of columbia will not escape our attention; nor shall we forget that, in exercising these powers, a regard must be had to those events which will necessarily attend the capital of america. the cheerfulness and regularity with which the officers and soldiers of the temporary army have returned to the condition of private citizens, is a testimony clear and conclusive of the purity of those motives which induced them to engage in the public service; and will remain a proof, on all future occasions, that an army of soldiers drawn from the citizens of our country, deserve our confidence and respect. no subject can be more important than that of the judiciary, which you have again recommended to our consideration, and it shall receive our early and deliberate attention. the constitution of the united states having confided the management of our foreign negotiations to the control of the executive power, we cheerfully submit to its decisions on this important subject. and in respect to the negotiations now pending with france, we sincerely hope that the final result may prove as fortunate to our country, as the most ardent mind can wish. so long as a predatory war is carried on against our commerce, we should sacrifice the interests and disappoint the expectations of our constituents, should we, for a moment, relax that system of maritime defence, which has resulted in such beneficial effects. at this period, it is confidently believed that few persons can be found within the united states, who do not admit that a navy, well organized, must constitute the natural and efficient defence of this country against all foreign hostility. the progress which has been made in the manufacture of arms, leaves no doubt that the public patronage has already placed this country beyond all necessary dependence on foreign markets for an article so indispensable for defence; and gives us assurances that, under the encouragement which government will continue to extend to this important object, we shall soon rival foreign countries, not only in the number, but in the quality of arms completed from our own manufactories. few events could have been more pleasing to our constituents, than that great and rapid increase of revenue which has arisen from permanent taxes. whilst this event explains the great and increasing resources of our country, it carries along with it a proof which cannot be resisted, that those measures of maritime defence which were calculated to meet our enemy upon the ocean, and which have produced such extensive protection to our commerce, were founded in wisdom and policy. the mind must, in our opinion, be insensible to the plainest truths, which cannot discern the elevated ground on which this policy has placed our country. that national spirit, which alone could vindicate our common rights, has been roused, and those latent energies, which had not been fully known, were unfolded and brought into view, and our fellow-citizens were prepared to meet every event which national honor or national security could render necessary. nor have its effects been much less important in other respects. whilst many of the nations of the earth have been impoverished and depopulated by internal commotions and national contests, our internal peace has not been materially impaired; our commerce has extended, under the protection of our infant navy, to every part of the globe; wealth has flowed without intermission into our seaports, and the labors of the husbandman have been rewarded by a ready market for the productions of the soil. be assured, sir, that the various, and important subjects recommended to our consideration, shall receive our early and deliberate attention; and, confident of your co-operation in every measure which may be calculated to promote the general interests, we shall endeavor, on our part, to testify, by our industry and despatch, the zeal and sincerity with which we regard the public good. the report of the committee was immediately taken up, and, on the question to agree to the address, mr. nicholas rose and observed that he regretted the introduction of political matter, calculated to produce discord and division. he was averse to the house spending time in propounding political theories, as no good, but much mischief, might flow from such a procedure. had no other topics or sentiments been alluded to than those contained in the president's speech, there would have been much less division in the house than was to be expected from the insertion of extraneous ideas. he had no intention, however, to enter into a detail of the objections he entertained to the address. for the reasons he had assigned, and others which he felt, he thought the style of the address not only unnecessary, but worse than useless. he concluded by desiring the yeas and nays to be taken. the question, being taken, was carried in the affirmative--yeas , nays , as follows: yeas.--bailey bartlett, william cooper, wm. craik, john davenport, franklin davenport, george dent, joseph dickson, william edmond, thomas evans, abiel foster, jonathan freeman, elizur goodrich, roger griswold, archibald henderson, benjamin huger, jas. h. imlay, henry lee, silas lee, james linn, lewis r. morris, harrison g. otis, robert page, josiah parker, jonas platt, leven powell, john read, nathan read, wm. shepard, john c. smith, richard dobbs spaight, george thatcher, richard thomas, peleg wadsworth, robert waln, lemuel williams, and henry woods. nays.--phanuel bishop, robert brown, gabriel christie, matthew clay, william c. c. claiborne, john condit, john dawson, lucas elmendorph, edwin gray, andrew gregg, john a. hanna, joseph heister, david holmes, george jackson, aaron kitchell, michael leib, nathaniel macon, peter muhlenberg, anthony new, john nicholas, john randolph, john smilie, john smith, richard stanford, david stone, thomas sumter, benjamin taliaferro, john thompson, abram trigg, john trigg, philip van cortlandt, and jos. b. varnum. _resolved_, that mr. speaker, attended by the house, do present the said address; and that mr. griswold, mr. macon, and mr. craik, be a committee to wait on the president to know when and where it will be convenient for him to receive the same. _credentials of members._ mr. dent, from the committee of elections, to whom were referred the certificates and other credentials of the members returned to serve in this house, made a report, in part, which was read as follows: "that they have examined the credentials of several members, claiming seats in the house, in consequence of resignations which have taken place, and find that, by the certificate of the governor of massachusetts, dated the eleventh day of november, eighteen hundred, under the seal of the state, nathan read (of danvers) is duly elected, in the place of samuel sewall; that by the certificate of the governor of connecticut, bearing date twentieth day of october, eighteen hundred, with the seal of the state annexed, john cotton smith is duly elected, in the place of jonathan brace; and that, by the certificate of the deputy sheriff of henrico, the sheriff of hanover, the sheriff of new kent, the deputy sheriff of charles city, and the sheriff of james city counties, composing one entire district in the commonwealth of virginia, under their respective seals, lyttleton waller tazewell is duly elected, in the place of john marshall.[ ] "the committee also find, by an authenticated certificate signed by the speaker of the house of representatives, and the president of the legislative council of the territory north-west of the river ohio, dated the seventh day of november, eighteen hundred, that wm. mcmillan is duly elected to represent the said territory, in the place of william henry harrison. "whereupon, the committee are of opinion that nathan read, (of danvers,) john cotton smith, and lyttleton waller tazewell, are entitled to take their seats in the house in the place of samuel sewall, jonathan brace, and john marshall, who have resigned; and that william mcmillan is entitled to take his seat therein, with the right of debating, but not of voting, in the place of william henry harrison, who has resigned." _ordered_, that the said report do lie on the table. thursday, november . another member, to wit, john bird, from new york, appeared, and took his seat in the house. _answer to the address._ the speaker, attended by the house, then withdrew to the house of the president of the united states, and there presented to him the address of this house in answer to his speech to both houses of congress; to which the president made the following reply: _mr. speaker, and gentlemen of the house of representatives_: compelled by the habits of a long life, as well as by all the principles of society and government which i could ever understand and believe, to consider the great body of the people as the source of all legitimate authority, no less than all efficient power, it is impossible for me to receive this address from the immediate representatives of the american people, at this time, and in this place, without emotions which it would be improper to express, if any language could convey them. may the spirit which animated the great founder of this city descend to future generations; and may the wisdom, magnanimity, and steadiness, which marked the events of his public life, be imitated in all succeeding ages. i thank you, gentlemen, for your assurance that the judiciary system shall receive your deliberate attention. with you, gentlemen, i sincerely hope that the final result of the negotiations now pending with france, may prove as fortunate to our country, as they have been commenced with sincerity, and prosecuted with deliberation and caution. with you, i cordially agree, that so long as a predatory war is carried on against our commerce, we should sacrifice the interests and disappoint the expectations of our constituents, should we for a moment relax that system of maritime defence, which has resulted in such beneficial effects. with you, i confidently believe that few persons can be found within the united states, who do not admit that a navy, well organized, must constitute the natural and efficient defence of this country, against all foreign hostility. those who recollect the distress and danger to this country, in former periods, from the want of arms, must exult in the assurance, from their representatives, that we shall soon rival foreign countries, not only in the number, but in the quality of arms, completed from our own manufactories. with you, gentlemen, i fully agree, that the great increase of revenue is a proof that the measures of maritime defence were founded in wisdom. this policy has raised us in the esteem of foreign nations. that national spirit and those latent energies which had not been and are not yet fully known to any, were not entirely forgotten by those who had lived long enough to see, in former times, their operation, and some of their effects. our fellow-citizens were undoubtedly prepared to meet every event which national honor or national security could render necessary. these, it is to be hoped, are secured at the cheapest and easiest rate: if not, they will be secured at more expense. i thank you, gentlemen, for your assurance that the various subjects recommended to your consideration, shall receive your deliberate attention. no further evidence is wanting to convince me of the zeal and sincerity with which the house of representatives regard the public good. i pray you, gentlemen, to accept of my best wishes for your health and happiness. john adams. washington, _nov. , _. the members then returned to their chamber. a message from the senate informed the house that the senate have proceeded to the appointment of a chaplain to congress, on their part, and the right reverend bishop clagett has been duly elected. the house proceeded, by ballot, to the appointment of a chaplain to congress on the part of this house; and upon examining the ballots, a majority of the votes of the whole house was found in favor of the reverend thomas lyell. friday, november . another member, to wit, abraham nott, from south carolina, appeared, and took his seat in the house. monday, december . several other members, to wit: from maryland, john dennis; from virginia, joseph eggleston; from north carolina, william h. hill; and from georgia, james jones, appeared, and took their seats in the house. tuesday, december . the speaker laid before the house a letter from the secretary of the navy, accompanying a report of the commissioners of the fund for navy pensions and half-pay, pursuant to the act for the better government of the navy of the united states; which was read, and ordered to lie on the table. mr. lee, from the committee appointed for that purpose, reported a bill for erecting a mausoleum to george washington, which was read twice and referred to a committee of the whole to-morrow. the bill directs that the mausoleum shall be of marble, to be erected in the city of washington, under the superintendence of the four secretaries. _trade with the indians._ mr. claiborne stated that during the last session a committee was appointed to inquire into the state of the trade, authorized by law, with the indian nations. that committee had reported unfavorably to the trade. but desirous of maturing with deliberation a new plan before the old one was supplanted, they had reported a bill for continuing the existing system for one year. the bill had passed the house of representatives unanimously, but had been postponed by the senate to this session. for his own part, he was altogether unfavorable to the trade; for he believed that it answered no good purpose in relation to the indians, while it was a loss to the united states.[ ] it was, however, proper that some legislative provision should be made immediately. the old law regulating the officers who had the superintendence of the trade, had expired, and they were of consequence under no legal control. he, therefore, moved the appointment of a committee, to inquire into the expediency of carrying on any further trade on a capital furnished by the united states, to report by bill or otherwise; which motion being read a second time, was agreed to, and a committee of three appointed. thursday, december . another member, to wit, samuel goode, from virginia, appeared, and took his seat in the house. the speaker informed the house that the chaplains had proposed, if agreeable to the house, to hold divine service every sunday in their chamber. _reporting the debates._ mr. hill presented a memorial from samuel harrison smith and thomas carpenter, representing that they had undertaken to report the debates of the house; that, contrary to their expectation--on the suggestion of inconvenience to the members--they had not received permission to occupy a situation within the bar, without which they were unable to state with fidelity the proceedings and debates; and praying the permission of the house to be admitted within the bar. as soon as the memorial was read, the speaker rose and observed, that feeling himself responsible to the house for the faithful discharge of the duties attached to his situation, he thought it proper to state the line of conduct he had pursued in this business. he stated that he was applied to by letter on the first day of the session, by mr. stewart, requesting permission to occupy a place within the bar; that he immediately took the request into consideration; that, in the mean time, similar requests were made by other individuals; that, on observing the structure of the room and the arrangement of the furniture, it at once appeared to him inconsistent with the dignity of the house or the convenience of the members to grant the permission asked; that the area was too small to afford the necessary accommodation; that the position considered as the least inconvenient to the house was within the window-frames; that, in his opinion, this position would not be agreeable to the stenographers, as the view of the members on the opposite side of the house from either window would be obstructed; that, if a position was assigned in any other part of the house, the stenographers would be between the chair and some of the members, which would render the preservation of order impossible; that he had stated these reasons, and informed the applicants that, if agreeable to them, he would assign a place in the gallery, which should be set apart for their exclusive use; and that he considered that to be the most eligible position. he concluded by repeating, that it was, in his opinion, absolutely impossible to preserve the dignity of the house and to maintain the convenience of the members, if the requested permission were given. such was his first, his invariable opinion--it was unaltered--it was still the same. mr. nicholas said, that the members of the house must feel a common interest in having the debates taken with fidelity. if the debates were taken, they ought to be taken with precision. those who took them should not be debarred from the best means of hearing with accuracy. for his part he could not discern the inconvenience alleged to exist. the desk, which it was necessary to admit within the bar, would not project beyond the window-frame; and as to the remark of the speaker respecting the inconvenience of such a position to the stenographers, it was easily obviated by the consideration, that any inaccuracy which might occur in the report of the individual who took them on one side of the chair, would be checked by the reporter situated on the other side. he thought the desire of the memorialists ought not to be passed over lightly. they had a right to the best place the house could assign. he moved the reference of the memorial to a select committee. mr. hill observed that as the memorial contained no facts that required the investigation of a committee, and as the house possessed all the information that could guide their decision, he did not discern the propriety of the proposed reference. he had prepared a resolution, which, if the motion for a reference were withdrawn, he would offer. mr. nicholas immediately withdrew his motion. mr. hill then proposed a resolution substantially to this effect: that mr. speaker be requested to assign places within the bar for the stenographers. mr. otis was sorry the gentleman from virginia had withdrawn his motion to refer the memorial to a select committee, as he thought the subject required examination before a decision was made. there appeared to him much weight in the ideas of the speaker. grant, for the sake of argument, that four persons may be accommodated at the windows. might there not be other applications? was any gentleman prepared to say how many would be made? if the permission were once granted to one, would it not be necessary to extend it to all? would the house suffer any individual to have an exclusive benefit whereby a stamp of authenticity would be fixed on his statements. this business, in one shape or other, had often been before the house, and all conversation respecting it had always issued in leaving it to the regulation of the speaker. this appeared to him the best termination it could receive. from the attention he had paid to the debates reported this session, he believed them to be better and more accurately taken, than they had been on former occasions. this to him was a proof that the present situation of the stenographers was a good one. he acknowledged, at the same time, that the ability with which the debates were taken entitled those who took them to the best accommodation the house could afford. he concluded with renewing the motion for a reference to a select committee. mr. nicholas replied, that no debate had taken place which could test the accuracy of the stenographers. from his own experience he pronounced the situation at present occupied utterly inconvenient. what he had some days since remarked had been misstated. he well knew that this did not arise from the inability of the reporter to state correctly what occurred. he knew him to be intelligent, and fully capable of conceiving and conveying the meaning of any remarks which could be made in that house. but it arose from his situation, from which it was impossible to hear distinctly. he declared the objections of mr. otis, in relation to the number of applicants, perfectly chimerical. did the gentleman suppose that the number would be so great as to make a demand on their seats? as well might he imagine this, as that they would swell to the ideal compass he had given them. it was known to the house, that at philadelphia the number was small; seldom more than two, and often not more than one persevered during the session, though a greater number appeared on its earliest days. fact and experience, therefore, demonstrated the fallacy of the danger apprehended from this source. the question was then taken on the reference to a select committee, and carried--ayes , noes . and a committee of five, viz: messrs. otis, nicholas, platt, morris, and hill, was appointed. friday, december . several members, to wit: from north carolina, william barry grove; from kentucky, thomas t. davis; and from rhode island, christopher g. champlin, appeared, and took their seats in the house. _mausoleum to washington._ mr. h. lee moved that the house do go into a committee of the whole on the bill "directing the erection of a mausoleum to george washington." on which motion the house divided--yeas , nays . mr. morris took the chair. the chairman, after reading the bill through, proceeded to read it by paragraphs. the first section is as follows: "sec. . _be it enacted by the senate and house of representatives of the united states of america in congress assembled_, that a mausoleum of american granite and marble, in a pyramidal form, one hundred feet square at the base, and of a proportionate height, shall be erected, in testimony of the love and gratitude of the citizens of the united states, to george washington." mr. alston moved an amendment to the first section, which was, in substance, "that a monument of marble be erected in the capitol, at the city of washington, commemorative of the great events of the military and political life of george washington." mr. h. lee said, that during the last session the house, after a long debate, had declared itself in favor of a mausoleum, and that as no reasons had been assigned for a change of opinion, he hoped they would persevere in the deliberate result of their judgment. mr. otis was ready to acknowledge himself unacquainted with many of the circumstances embraced by the subject. he therefore wished additional information to that which he had received. his present opinion was, that a mausoleum was preferable to a monument. he acknowledged that, in forming this opinion, he had felt great deference for the judgment of the committee which had recommended it. it was undoubtedly a subject but little understood. the formation of a proper decision depended upon a concurrence of several circumstances--upon a comparison of the expense with the value of the object to be accomplished. besides this, it had many peculiar features not comprehended by every gentleman. he thought these considerations sufficient to induce the house to decline voting for the amendment, whereby the plan of the committee, who had maturely considered the subject in all its relations, would be frustrated, unless stronger reasons were assigned than he had yet heard. mr. nicholas observed, that the bill directed the erection of a mausoleum of certain dimensions, to ascertain the expense of which an estimate had been made. but that estimate was not satisfactory. it was made without information. the sum to be expended was not fixed. it might vastly exceed any sum now contemplated. the mausoleum was to consist of a huge, ugly mass of stones heaped upon one another, to raise which a heavy and useless expense would be incurred. and what was the object? it was to perpetuate the memory of george washington. was the memory of that great man to be perpetuated by a heap of large inanimate objects? the best way in which his fame could be preserved would be by bringing his ashes from the place where they now lie, by depositing them in the capitol at the will of the nation, in interring them in such a manner as had never before been done, in placing over them a plain tablet, on which every man could write what his heart dictated. this, and this only was the basis of his fame. it was not to be blazoned by figures or representations of any other sort. it consisted in the undecaying recollection of his virtues. it must live in the national feeling, and this called not for useless expense. twenty thousand dollars was as competent to its expression as two hundred thousand. he hoped, therefore, the amendment would be adopted, and that the terms which related to military and political achievements would be omitted. he hoped a plain monument would be erected. his preference of a monument to a mausoleum arose not from any indisposition to celebrate the memory of our american hero. he could say as much in his praise as any man. neither a committee of congress nor the four secretaries, on whom the bill devolved the superintendence, felt more zeal for the character of this great man than he did. mr. nott did not rise to consume the time of the committee by going at large into an examination of the subject, but to explain the reasons for the vote he meant to give. he had, last session, co-operated most cheerfully in all those measures which had been pursued to express the national sensibility at the loss of that great and immortal character. in the feelings of gratitude which his services excited, no man could outdo him. among other measures, he had been friendly to the erection of a mausoleum. but, on more reflection, he had changed his opinion. he did not believe that a huge mass of stones would add to the reputation of washington, or be more expressive of national affection, than a marble monument. this being the case, he preferred the latter, because it was the least expensive. mr. griswold hoped the amendment would not prevail. it was the object of the bill to raise a monument which would last for ages, and which should be a perpetual memorial of the gratitude of america. such would not be the case if the proposition made by the gentleman from north carolina should be adopted. the monument proposed by him might be broken and destroyed by a lawless mob or by a set of schoolboys. for his part, he would not consent to raise such a monument to the memory of a man who had deserved so well of his country. the bill proposed the erection of a monument that would stand unimpaired for ages. it is true that it will not perpetuate the fame of washington: his fame required nothing which we could do to give it perpetuity; but it will perpetuate the gratitude of the country. it would be a structure that will command respect; it will be pointed out to our children; they will enter it with reverence, as the spot in which the ashes of this great man are deposited. it was undoubtedly a subject of sentiment; and subjects of such a kind must be guided by feeling. various opinions, therefore, may naturally be expected. his opinion was, that the national sentiment called for the erection of a structure correspondent in size to the character of the man to whom it was raised. the general outlines of the bill might now be adopted; and if there existed a variance of opinion, the subordinate members of it might be modified. mr. h. lee said, if it were the wish of gentlemen to avoid the adoption of measures commemorative of the talents of the great man we have lost, it would be candid to tell us so at once. for his part, he saw little difference between the adoption of the amendment and the rejection of every plan proposed that was adequate to the occasion. sir, said mr. l., there is not a rich man in europe who loses his mistress that does not raise a trophy to her memory; and shall it be said that we, who have sustained the most irreparable loss in the death of our chief--shall it be said that we refuse to pay him those honors which are lavished so liberally upon such inferior objects? if you do not mean to come forward on the occasion, say so. then we shall understand the reasons of opposition to the ground taken by this house last session. as yet no reasons had been assigned for abandoning it. we then declared that we would act. we exhibited a spirit worthy of the immortal washington--worthy of the distinguished character of this house. but should this honorable spirit, kindled by an enthusiasm in the virtues and talents of our departed benefactor, subside and be chilled by the adoption of the proposed amendments, he would condole with the house, and would rather they would be silent for ever than disgrace themselves and their country by so subordinate an act. it is true, sir, that the celebrity and the glory of washington hang not on our plaudits. history will transmit to posterity the lustre of his fame, glittering with untarnished purity. it is not in our power either to increase or diminish it. but, sir, we may imitate his virtues and his great example. we are deeply interested in holding them forth as illustrious models to our sons. is there, then, i ask you, any other mode for perpetuating the memory of such transcendent virtues so strong, so impressive as that which we propose? the grandeur of the pile we wish to raise will impress a sublime awe in all who behold it. it will survive the present generation. it will receive the homage of our children's children; and they will learn that the truest way to gain honor amidst a free people is to be useful, to be virtuous. this will not be the act of an individual. it will be the act of a government expressing the will of a great nation. seize then, i pray you, seize with rapture, the occasion that is now presented, thankful to the supreme disposer of events for giving you an opportunity of rearing some future washington. this is a great object; frown, then, upon all the little efforts made to defeat it. it is certainly true, that if you erect a mausoleum, you must expend some public money. but are you not the guardians of the public treasure? does not the selection of the best objects to which to appropriate it devolve on you? and can there be a greater, a more patriotic purpose than this? is it not your great duty to promote the public good; and can that be more completely promoted in any other way? the sum asked is seventy thousand dollars. who can show me in what other manner the same good can be effected by so small a sum? but it is said that the bill vests a discretion in the secretaries, and they may exceed the estimate. but, sir, are the secretaries unworthy of confidence? do not we know that we may safely rely upon them? besides, if thought expedient, the expenditure may be limited. thus, surely, without prodigality on the one hand or parsimony on the other, you may do honor to yourselves and your country. mr. macon did not pretend to know much about that kind of things proposed by the bill; but he believed, from the little he did know, that such a thing had not been attempted for a thousand years. the expense attending the proposed measure had been treated lightly. for himself, he was not disposed to consider seventy thousand dollars a trifling sum. he thought it a great sum, and believed every man in the country thought as he did. in forming his idea of any particular sum, he was not carried away by the visionary notions of speculation; he looked at the labor it required to produce it; and he well knew how hardly earned was the money from which this enormous sum must proceed. he further believed that no man could tell how much the mausoleum would cost. the seventy thousand dollars was only a beginning; and when the object was once begun, experience tells us that we must finish it at all events, let it cost what it might. the base was fixed at a hundred feet. why not decide its other proportions? did not the silence of the bill on this point show the ignorance of gentlemen? all was doubt. what strengthened his opinion of the total want of information, was the exhibition last session of two estimates: one of which was predicated on a base of sixty feet, and required sixty-seven thousand dollars; the other was predicated on a base of one hundred feet, making the structure nearly three times as large, and requiring only seventy thousand dollars. could this be correct? both estimates certainly could not be true. the probability was that neither could be depended upon. for what purpose was this great mass to be raised? he saw no good purpose likely to be answered by it under the sun. can stones show gratitude? if the nation wished to show its gratitude, let them do it by making a history of the life of washington a school-book. our children then will learn and imitate his virtues. this will be rendering the highest tribute to his fame, by making it the instrument of enlightening the mind and improving the heart. while there are such rational modes of distinguishing the memory of washington, can congress so far forget the interest of the nation; can they so far forget their own duty, as to expend millions in acts of useless and pernicious ostentation? since the invention of types, monuments are good for nothing. the records of history will remain long after their decay or destruction. we are told that the best mode of perpetuating the memory of washington is to erect a mausoleum. i have heard, said mr. m., of aristides, i have heard of hampden, but i have never heard of monuments raised to their memories. yet their virtues shine as bright now as they did while they lived. i have heard of a place called westminster abbey, full of the monuments of kings; yet, notwithstanding these grand memorials, i have heard very little of them after they left this world, and i question very much whether any man, let him have heard what he may, if he were to go there could tell one of them from the other. but, it is said that the monument, proposed by the amendment, may be thrown down and destroyed by mobs or schoolboys. god forbid that this should ever be the case! i do not believe, said mr. m., this to be possible. if it were made of glass, frail as it is, it would be safe; all would revere, all would respect it. the house is told by one gentleman, who advocates the mausoleum, that a rich man in europe cannot lose his mistress without raising a monument to her memory. was the gentleman serious when he made this remark? would he place the memory of washington on a footing with that of a rich man's mistress? better, sir, said mr. m., far better would it be, more honorable to the government, and more conformable to the wish of our deceased friend, to devote the seventy thousand dollars, designed for a mausoleum, to the education of the poor. then, indeed, we might flatter ourselves with having extended the empire of his virtues, by making those understand and imitate them, who, uninstructed, could not comprehend them. if he thought that by raising a magnificent monument to washington, he could give duration to his fame, or carry his name into a single country which it had not yet reached, he would give the measure his support. but no such effect would be produced. it might indeed adorn this city; and that was the only plausible argument in favor of it. before gentlemen act in this business, let them look to egypt; there they will behold precedents in profusion; men made gods, and statues and monuments and mausolea covering the whole face of the country; but where will they find the virtues or the talents of the men they were meant to commemorate? now is the time to make a stand against this monument mania. washington is admired and beloved by all. no one can be charged with a desire to diminish his fame by opposing a useless expenditure of money. the precedent we now establish will be auspicious to our future measures. if we decline raising a mausoleum to washington, no man who succeeds him can expect one reared to his memory. on the other hand, if we now raise one to washington, every pretender to greatness will aim at the same distinction. mr. macon concluded by declaring himself hostile to the bill, and friendly to the amendment, because it proposed a plan that was more rational, more economical, and more conformable to the resolve of the old congress, than that contained in the bill. the committee then rose without coming to any decision, reported progress, and obtained leave to sit again. monday, december . several other members, to wit: from connecticut, chauncey goodrich, and samuel w. dana; and from rhode island, john brown, appeared, and took their seats in the house. a new member, to wit, samuel tenney, returned to serve in this house as a member for new hampshire, in the room of william gordon, who has resigned his seat, appeared, produced his credentials, was qualified, and took his seat in the house. tuesday, december . another member, to wit, john rutledge, jr., from south carolina, appeared, and took his seat in the house. _reporting the debates._ the house proceeded to consider the report of the committee to whom was referred the memorial of samuel harrison smith and thomas carpenter, made yesterday, and which lay on the table; and, the same being again read, in the words following, to wit: "the committee to whom was referred the memorial of samuel harrison smith and thomas carpenter, report the following resolution, which they recommend to the house: "_resolved_, that it is not expedient for this house to make any order upon the subject of the memorial of samuel harrison smith and thomas carpenter, presented on the fourth day of december instant." mr. christie moved the reference of the report to a committee of the whole. mr. griswold opposed the reference. the house divided--for the reference , against it, . mr. jackson made several remarks, and concluded by calling for the yeas and nays, which were ordered. mr. nicholas said, in a government like ours, the theory of which is republican, and the practice of which he hoped would always continue to be republican, he considered the representatives of the people responsible to the people, by whom they were created. it was necessary, to give efficacy to this responsibility, that the people, who were to judge, should possess the purest information, as to not only the acts, but the motives of the public agents. it was of little consequence to them to know what laws are enacted, compared with a knowledge of projects that were attempted or prevented, and the grounds on which they were supported or opposed. nor could the merits of the acts themselves be understood, unless the reasons for them were stated. it was, therefore, of the highest consequence that the reasons for our conduct should be clearly understood, that our measures may be comprehended, and our motives also known, that our constituents may judge whether we have faithfully discharged our duty. under this view of the subject, he thought it extremely indelicate to resist the admission within the bar of those persons who thought themselves qualified to take the debates and proceedings of the house. but what rendered the attempt still more improper, was, its being an innovation on the practice of the house. for, since he had been a member of the legislature, individuals of this description had been placed by the house at their ease, in a situation convenient for hearing what passed. why is this practice, hitherto unopposed, now to be broken in upon? for such an innovation and departure from the established practice of the house, there ought to be the strongest reasons; particularly when the attempted innovation respected, and was made by, those whose conduct was to be scrutinized. it was not without deliberation that the practice of the house had been instituted and adhered to. some gentlemen had, some time since, contemplated the employment of a particular individual, whose services were to be paid for by the house. but the idea was abandoned, from the supposed sanction given by such an act to his statements; whereby the house might be made responsible for his accuracy and talents. the difficulty attending the business he acknowledged to be great. but, for the reasons he had assigned, he thought the house had acted right in forbearing to interfere, further than by merely assigning a convenient place to the stenographers. it was deemed safest to confide the business to persons not known officially to the house, whose own individual interest would constitute the best pledge for their fidelity. though no precise resolve had been passed to this effect, it was well understood that this was the course the house meant to pursue, after having given the subject a deliberate and solemn consideration. shall we now, said mr. n., after this mature consideration, on the mere suggestion of personal inconvenience, on a subject of such importance as to invite a gentleman from a considerable distance, [referring to some old plan,] shall we, after the sanction of a uniform practice, fortified by the long period for which it has been observed, on the suggestion of a trifling inconvenience, which, he believed, on examination, would not be found to exist at all, adopt the innovation proposed by the report of the committee? for his part, he thought they were all deeply interested in having the debates well taken, as it was not in their power altogether to prohibit their being taken. he had heard but two objections made to the old plan. the first was, that by passing a resolve admitting stenographers within the bar, the house gave a sanction to the reports published by them. the second was, that as the speaker had heretofore had the management of the business, it would be wrong to take it out of his hands. as to the first objection, he thought it altogether incorrect. the resolution, submitted by the gentleman from north carolina, (mr. hill,) which he wished the house to adopt, does not propose the selection of any particular person. it admits, generally, those individuals who wish to take the debates. can this admission make us responsible for the conduct of men we do not know, and over whom we have no control? have we heretofore been considered as responsible? and wherein consists the difference between our past situation and the situation we shall be in, if the motion of the gentleman from north carolina be adopted? we shall then only have done that which before had been done by the speaker. governed by a sense of duty, the speaker had refused admission within the bar. it became, therefore, necessary, in order to admit, for the house to pass a resolution. but it did not follow that the least responsibility would arise from such an act. indeed, by admitting the stenographers within the bar, the responsibility of the house would be diminished; for, if the house admitted them, no one could then say that it had done any thing that interfered with a faithful report of the debates; whereas, by excluding the stenographers, the unavoidable inaccuracies committed, might be charged to the house. the second objection made to the resolution of the gentleman from north carolina, was that, as the speaker had heretofore had the management of the business, it would be wrong to take it out of his hands. mr. n. in reply to this objection, observed, that the power, heretofore exercised by the speaker on this subject, had not been expressly delegated to him by the house. it had often been thought of, but no decision had heretofore been made. as the object asked related to the convenience of the members, he thought they were the best judges of the propriety of granting it. the inconvenience alleged to exist was entirely a matter of opinion. he thought it either had no existence or a very limited one. as he had remarked before, the subject was extremely delicate. he would not consent to furnish room for being charged with a wish to suppress the means of making an inquiry into his conduct. he believed that the innovation contended for, would be so viewed; so far, therefore, from considering it as innocent, he viewed it as wrong in itself, and likely to be mischievous in its effects. mr. otis was one of those who was not disposed to make a strong stand against the resolution offered by the gentleman from north carolina. he did not view the point in so interesting a light as did the gentleman who had preceded him. it appeared to him in the shape of a question of convenience; and as to his own situation, it could not be affected by any permission given to stenographers to come within the bar. many of the arguments he had heard, implied that the situation at present occupied by the stenographers was exclusive of all others; whereas if that were inconvenient they might take any other, so that they did not come within the bar. it is true that the stenographers have hitherto been admitted within the bar. they were admitted because there was room. but, in our present chamber, the room was less; nor could they occupy a part of that little, without materially interfering with the convenience of the members. in his opinion, the proper question for the house to consider was, whether an admission should take place independent of the speaker, or whether he should decide its propriety. it did not follow, if the speaker retained the management, that the exclusion would apply to all occasions. it was true, that the places desired by the stenographers were generally assigned to the high executive officers of the government, and the foreign ministers. but if, in consistence with their accommodation, the indulgence could be granted, during any important debate, he had no doubt of the speaker's readiness to admit them, and they might thus obtain a temporary place within the bar. mr. o. thought the remarks of the gentleman from virginia covered too much ground. they ascribed to the friends of the report an attempt to preclude the people from obtaining all information of what passed in the house. no such design existed. for his part, he wished the people to know every thing that occurred within these walls. there was no doubt of the debates, as heretofore given, being an inadequate organ of the ideas of the members; they had been taken for nearly twelve years, and sometimes they had been accurate, and at other times very inaccurate; and so complete had the distortion of sentiments often been, that had it not been for the name that was attached to a particular speech, the member, to whom it was ascribed, would not have known it to be his. mr. o. would, notwithstanding, not deny the ability of a person who read the debates, to form a tolerable idea of the arguments used on a particular subject. the charge of innovation, mr. o. thought unjust. he proposed to leave the business as it had heretofore been left, free from any resolve of the house, to the control of the speaker. by this conduct, no sanction would be given to the performances of any reporter; but, on the other hand, if the house passed a resolve, divesting the speaker of his previous power, they would render themselves responsible, and would virtually give a sanction. if it were resolved that the house should interfere, he would much rather select and pay an individual competent to the business, and appeal, for the faithful discharge of his trust, to his candor and impartiality. if the house passed the resolution admitting the stenographers within the bar, mr. o. asked whether they would not in fact be officers of the house. the only difference between them and the other officers would be that one would be paid and the others would not. mr. o. said that, in his opinion, the most inconvenient position in the house had been taken by the stenographers. it was near the clerk's office, between which and the bar there was a perpetual passage of the members. if an experiment were made of a position on the other side, or in the upper gallery, he was persuaded it would be found very convenient. are not, said mr. o., the galleries constructed for the express purpose of hearing? are they not intended for the good people of the united states? and if they can hear in them, cannot the stenographers also? mr. o. concluded by stating the extreme inconvenience that would arise from admitting the stenographers; the interference it would produce with the assignation of seats to the secretaries of our government and the foreign ministers; and with declaring his opinion that it was most expedient to adopt the report of the committee. mr. nicholson said, that if he understood the objections made by the gentleman from massachusetts to granting an admission of the stenographers within the bar, they might be classed under three heads: . it will be against precedent; . it would prevent the members from having elbow room; . there is a possibility that the speaker may indulge the stenographers. as to the first objection, he would ask whether the house had not a right to exercise any power themselves that was exercised by the speaker. hitherto the speaker has exercised the power, and admitted the stenographers within the bar; he now refuses to do it, and we are called upon to perform what he refuses. if we think it proper to admit them, we have a right to do it. the power heretofore exercised by the speaker was derived from us, according to the well-known maxim, _qui facit per alium, facit per se_. but we are told that the admission would interfere with the accommodation of the four secretaries and the foreign ministers. suppose it should, said mr. n.; i ask whether the convenience and the interest of the people of the united states are to be prostrated by our complaisance to the secretaries and foreign agents? it is our duty to enable the people to obtain the best information of what is doing here, that we can supply. shall we abandon our duty? shall we sacrifice the interests of our constituents to a sense of politeness to these gentlemen? it would be much better to submit to the inconvenience experienced by the secretaries and the foreign ministers, if there is not room for them within the bar, than to conceal from the people the knowledge they have a right to possess. let, then, the foreign ministers, if there be such a competition, retire into the galleries. he considered the subject as of high importance both to the country and the members themselves. they all ought to desire their conduct to be rigidly inspected. gentlemen say that the debates have been heretofore imperfectly taken. will they remedy the evil by excluding the stenographers from places within the bar? if, heretofore, notwithstanding the favorableness of their position, when stillness and silence reigned, they have been unable to take the debates with precision, can it be expected that, driven to a distance from most of the members, surrounded by a crowd in perpetual motion, they will be able more successfully to accomplish their object? sir, said mr. n., the expectation is absurd. it cannot be done. i have placed myself without the bar, and i declare it impossible to hear correctly. if, then, you are determined to exclude them from their usual places, you had infinitely better turn them out of the house altogether. as to the convenience of the galleries for hearing, mr. n. was not able, from a trial made by himself, to decide upon it. but he had heard but one uniform opinion, which was, that owing to the constant passage of persons, and the frequent crowd it would contain, it was impossible to hear there with any distinctness. with respect to the remarks made by the gentleman from massachusetts on this point, he thought them altogether inapposite. the gallery was not constructed by us, and if it were a bad place for hearing, it arose not from any fault to be ascribed to us. all that we did was to open our doors to all citizens who conducted themselves with decorum. the personal inconvenience to members alleged, did not, in the opinion of mr. n., exist. he thought there was ample room. the chamber they occupied was similar to that in philadelphia, and the positions desired by the stenographers were relatively the same as those in philadelphia. by advancing the clerk's table three feet, every difficulty would be removed. mr. rutledge said, that the members who had preceded him had talked much about the necessity of giving the people correct information of the transactions of that house. he believed there was not a single member who did not wish to impart to the people all the knowledge they could receive, and who did not highly prize the means of information furnished by the proceedings of that house. on this point there was no division. no one was desirous of excluding the stenographers, or prohibiting the publication of debates. the only question really before the house was, whether they should persevere in the old plan; whether they should confide in the integrity and the talents of the speaker, who had hitherto merited their confidence, or whether, divesting him of his power, they should exercise a right themselves hitherto attached to his office. such a mode of procedure as had been pursued on this occasion was not conformable to that heretofore practised. an application somewhat similar had been, some time since, made to the speaker. the speaker decided, and the house, without debate, acquiesced in his decision. a stenographer had grossly misrepresented a member, and when required to correct his false statement, had insolently refused to do it, and added to the previous injury of misstatement insult of the most contumelious kind. the speaker dismissed him from his place for this barefaced misconduct. some of his friends made an appeal to the house. the house acted wisely, and, with becoming dignity, refused to interpose. now, said mr. r., if any other stenographer, like the one i have alluded to, shall make it his systematic practice to misrepresent, and he continue as heretofore to hold his place at the tenure of the speaker's permission, he may be dismissed by the speaker without troubling the house. but should the motion made by the gentleman from north carolina prevail, we shall be perpetually appealed to, and occupied in debate. for these reasons he trusted the report would be agreed to. mr. hill said he considered the subject as simply involving an address to the sentiments of the members on the ground of personal convenience, and that on that ground he was ready to sacrifice any little inconvenience to the accommodation of the stenographers; stating at the same time his entire reliance upon the integrity and talents of the speaker. mr. griswold said, this is nothing less than an appeal from the chair. to the speaker has heretofore been committed the regulation of the admission of all persons whatever within the bar. this is the only correct mode in which such an object can be accomplished. the speaker must exercise the discretion hitherto vested in him, otherwise the order of the house cannot be preserved. the object now is to take this power from the speaker, and to open the area of the house to the stenographers, without the speaker's approbation. it is said that only two persons at present apply. but if the door be once opened to admission in this way, there may be no end to intrusion. the speaker being divested of power to act, and the necessity of acting being evident, the house will be perpetually troubled with appeals. in his opinion, the power confided to the speaker had been exercised in this case with great propriety. it must be apparent to every body that the area was too small to justify the admission of the stenographers. he believed it to be an idle pretence that the stenographers could not hear. he believed it to be a mere matter of pride, which would be gratified by an appeal from the chair, and a reversal of the decision of the speaker by the house. mr. thatcher, persuaded that all the information derived from the debates of this house was of little comparative importance when viewed in relation to the general mass of information possessed by the people, cared but little for the event of the resolution before the house. upon this ground he felt no anxiety whatever. as a matter of order, it might perhaps be of some importance. as to the convenience of position, he doubted whether a more correct account of the debates could not be given from a situation without the bar than within it. his reasons were these: it was well known that for four or five sessions after the organization of the federal government stenographers never came within the bar, and their positions during that period were as remote from the members as at present. yet if any man would appeal to the debates then taken, he would find them as correctly taken as they have been at any time since. it is true, there were complaints of inaccuracy, but the debate takers never assigned, as a justification of their errors, the inconvenience of their situations; on the contrary, they declared that they did as well as they could, and contended that their reports were as correct as the nature of the case permitted. when the seat of government was transferred to philadelphia, and the stenographers occupied places within the bar, complaints increased, the debates were taken more incorrectly, and two or three of the stenographers were actually turned out of the area within the bar; one of whom, he believed, was sent into the upper gallery. the incorrectness of the published debates did not arise so much from an inability to hear as from an inability to take down a rapid speech. mr. t. said he believed the debates as taken down by mr. lloyd, were as accurately taken as any taken before or since. the conclusion he drew from these facts was, that if the stenographers were admitted by the house within the bar, the public would gain nothing by it. he had, however, no objection to their admission, if the speaker approved it. they might, as far as he cared, take any place in the house; even seats alongside of the speaker. mr. davis had expected to hear substantial reasons in support of the report of the committee. none such had been offered. it was said that the stenographers could hear very well from their present positions. he denied it. the reporter could not possibly hear. though himself nearer the gentleman, he had not heard a word that fell from the gentleman from north carolina. he trusted the house would admit the stenographers within the bar. if not admitted, the conversation and passage of the members around them will at once prevent the debates from being well taken, and be a perpetual excuse for their errors. but if admitted, they will have no such apology, and they will be within the power of the house. the great mass of our citizens are too remote to attend your debates. they rely on those who report them. not more than forty or fifty persons transiently appear in the galleries, who are not equal to diffusing a knowledge of your proceedings. exclude the stenographers, and you may as well shut your doors. it may be said that you print your journals; but who reads them? they are scarcely read by the members themselves. on great national questions the people ought to know, not only what you do, but also the principles that guide you. the gentleman from south carolina was willing to place the stenographers under the coercion of the speaker, but was unwilling to place them under the coercion of the house. for his part, he thought differently. he did not wish to see them at the mercy of the speaker. several allusions had been made to the treatment of a reporter at philadelphia, who had been driven from the house by the speaker. he recollected the affair, and, in his opinion, the speaker had in this case been actuated more by personal enmity, than by any other motive. mr. h. lee next rose. he said he put it upon the candor of his colleague from virginia to declare whether, in his opinion, any gentleman in that house wished to suppress his sentiments, or was disposed to shrink from an avowal of them. if an individual were to judge from the debate of to-day he would infer that it was the desire of some members on that floor to conceal their sentiments from the people. no such thing was the case. we are as anxious as those who differ with us that the people should know what we think, say, and do. the only question was, whether the speaker shall exercise a certain power which he can conveniently, and which he has hitherto honorably exercised, or whether we shall assume it with all its inconveniences. he hoped we should not. he feared no inaccuracy so long as the debates published received no sanction from the house. have you, said mr. l., no greater objects to engage your attention than whether this man or that man shall go out of your bar, or remain within it? he thought the house might be better employed. mr. macon understood the subject before the house very much as his colleague did. the question was simply whether we will take upon ourselves inconveniences alleged to exist, or keep the stenographers without the bar. he was convinced that the situations occupied by the stenographers were badly calculated for hearing, as even within the bar the members could scarcely hear each other. one reason had great weight with him. it was, that if the house made a rule in relation to the admission of the stenographers, it would be placing law in the room of discretion. he preferred a certain rule to a vague discretion. the danger apprehended from a crowd of stenographers was farcical. since he had been in congress he had never seen more than three or four. and if the number admitted should prove inconvenient, it would be time enough, when the inconvenience was experienced, to remedy it. mr. s. smith said the question was entirely one of inconvenience. he would not ascribe to any member a desire to suppress his sentiments. the speeches never went forth as delivered. yet it was desirable to assign to the stenographers the most convenient places. he had heard gentlemen on both sides of the chair declare they would experience no inconvenience from the admission of the stenographers. for himself, from his situation, he could experience none. he believed, indeed, that the members could be heard from any part of the house, and nearly as well in one place as in another. but as other gentlemen hold a different opinion, and the stenographers had hitherto been admitted within the bar, he had not the least objection, and would vote for their admission. in this stage of the debate, the speaker arose, not, he said, to inquire into the consequences of the house acting in the business, but again to repeat the line of conduct he had pursued, and the motives which had influenced his conduct; he did this for the information of members not in the house at the time he had before addressed the house. the speaker then repeated what he had before stated, viz: that on being appealed to by mr. stewart, he had declared to him his decision before any other application had been made; that he had spoken to many members, all of whom, without a single exception, had approved his ideas, and concluded with again declaring, as he had before declared, that the stenographers could not be admitted within the bar without violating the order of the house and the convenience of the members. it was, he said, for the house to decide--to them only was he responsible. mr. nicholas understood it to be the object of those who supported the admission of the stenographers within the bar to place them upon the same footing they had heretofore held. this was his object. all the remarks, therefore, made respecting their independence of the chair, were inapplicable. they would still be subject to his control, except as to the single point of situation. in short, the business would be restored to its old form. his colleague had made an appeal to his candor. he wished to know whether he (mr. n.) thought that he or any other gentleman in that house wished to suppress his sentiments, or was disposed to shrink from an avowal of them? he would answer the appeal made by his colleague, and would tell him that he did not feel himself at liberty to form conjectures respecting the opinions of others, but decided from facts. if he heard gentlemen make use of arguments so weak as those he had heard that day in defence of their sentiments, he would say that their feelings differed essentially from his. he would say that, judging them by their arguments, they do not wish publicity to be given to the debates of this house. what do the gentlemen tell us? does it not amount to this: that their complaisance for the speaker suffers him to judge for them in a case where they are the best judges; and would not this complaisance go to this length, that if the speaker should judge wrong, they will not interfere to correct his error? we are told by a gentleman just up, that the application made proceeds from pride, and that it can proceed from nothing else. but the gentleman has not assigned his reasons for this extraordinary charge. it is contended that any place without the bar will be convenient for the stenographers. let the place be pointed out. let the gentlemen who urge this show us a place without the bar inaccessible to the whispers of the members and the pressure of a crowd. do they imagine that any particular place can be assigned to which they can ensure a profound silence, and from which every person can be withheld? do they not know, have they not experienced, that when business presses, when subjects of importance are discussed, a crowd is produced, noise ensues, and interposing obstacles render it impossible either to hear or see the members? in such cases, by far the most interesting that can occur, a recess within the bar can be their only protection. the gentleman from massachusetts had put the business upon a very extraordinary footing--a footing that he did not expect from him. he represented that it would be safe to trust the reporters to the speaker's indulgence. for his part, he did not think it would be safe in such hands. shall the speaker have the discretion of saying what debates shall be taken and what shall not? shall he, and he only, have the public ear? could the speaker desire this? surely he could not. he ought rather to desire the house to decide generally than thus impose upon him such an invidious task. mr. n. said, he considered those who report the debates as appearing in this house on behalf of the people of the united states, to whom they communicated what passed here. the people were entitled to this information; and if, as observed by the gentleman from massachusetts, either foreign ministers or secretaries, or any other gentleman in long robes, interfered with such an object, they ought to give way. he knew not wherein consisted the propriety of assigning them particular seats. what right had they to exclusive seats? he knew no connection that subsisted between them and this house. be the right as it may, he was not for sacrificing a solid benefit to mere complaisance. but a gentleman has told us that one stenographer, for his misrepresentation and insolence, had been discharged by the speaker. in the course of debate, mr. n. said, he had studiously avoided any allusion to this circumstance. nor would he now say any thing about it, as he thought it altogether foreign from the present question. the respect which gentlemen expressed for the speaker appeared to him to lead them from the object they professed to have in view. for, at present, the stenographers are not under the control of the speaker. but admit them within the bar, and if they are guilty of misconduct, if they infringe any of the rules of the house, the speaker has them within his power. some gentlemen apprehend the admission of a crowd of stenographers. the thing is morally impossible. when congress met in a large populous city, where several daily papers were printed, we saw but two reporters. here, removed from the busy world, where the demand for that description of labor which arose from publishing the debates was not nearly so great, and, of consequence, the profit less, it could not be expected that there could be more. mr. n. concluded by declaring that, in his opinion, it was the duty of the house to decide in this case. the speaker had changed the established practice of the house. it became, therefore, the house to inquire whether he had done what he ought to have done; which, if he had omitted to do, it devolved on them to see effected. mr. waln spoke in favor of the adoption of the report. the question was then taken by yeas and nays, on agreeing to the report of the select committee, and carried by the casting vote of the speaker. there being yeas , nays , as follows: yeas.--theodore sedgwick, (speaker,) george baer, bailey bartlett, john bird, john brown, christopher g. champlin, william cooper, william craik, samuel w. dana, john davenport, franklin davenport, john dennis, william edmond, thomas evans, abiel foster, jonathan freeman, henry glenn, chauncey goodrich, elizur goodrich, roger griswold, william barry grove, archibald henderson, benjamin huger, james h. imlay, john wilkes kittera, henry lee, silas lee, james linn, lewis r. morris, harrison g. otis, robert page, josiah parker, jonas platt, levin powell, john read, nathan read, john rutledge, jr., john c. smith, samuel tenney, george thatcher, john chew thomas, richard thomas, peleg wadsworth, robert waln, lemuel williams, and henry woods. nays.--willis alston, theodorus bailey, phanuel bishop, robert brown, gabriel christie, matthew clay, william c. c. claiborne, john condit, thomas t. davis, john dawson, george dent, joseph dickson, joseph eggleston, lucas elmendorph, samuel goode, edwin gray, andrew gregg, john a. hanna, joseph heister, william h. hill, david holmes, george jackson, james jones, aaron kitchell, michael leib, nathaniel macon, peter muhlenberg, anthony new, john nicholas, joseph h. nicholson, john randolph, john smilie, john smith, samuel smith, richard dobbs spaight, richard stanford, david stone, thomas sumter, benjamin taliaferro, john thompson, abram trigg, john trigg, lyttleton w. tazewell, philip van cortlandt, and joseph b. varnum. wednesday, december . another member, to wit, matthew lyon, from vermont, appeared, and took his seat in the house. _mausoleum to washington._ the house went into a committee of the whole on the bill for erecting a mausoleum to the memory of george washington. mr. alston was in hopes, when he first made the motion now under consideration, that a question would have been taken upon the amendment without debate; but, as his wish upon that subject had not been complied with, he held it to be his duty to give to the house the reasons which actuated him. he said that he by no means wished to detract any thing from the merit of that illustrious character whose memory we were now about to perpetuate; that it was his wish that his character might be handed to the latest posterity unimpaired, and that he really thought the amendment equally calculated to effect that desirable purpose with the bill; that the difference of expense was a matter of importance to the people of this country; that the expense of a mausoleum, from the best information he had been able to collect, would amount to at least or $ , ; that a monument, such as was contemplated by the amendment, would not cost more than one tenth as much as a mausoleum, as contemplated by the bill as it now stood. indeed, he believed that the bare expense of interring the remains of general washington in a mausoleum would cost as much as the proposed monument. mr. a. said he considered congress pledged, as far as the resolution of the last session went; that the gentleman from massachusetts, (mr. otis,) who was up a few day ago upon this subject, had requested information; in answer to which he had only to observe that if that gentleman would have given himself the trouble to have examined the proceedings of the last session of congress he would have been better informed than he appeared to be; that a committee equally respectable with that which had reported the bill at the present time, had then fully investigated the subject, and had made a report, which was to be found upon the journals of the last session of congress, recommending a monument such as was contemplated by the proposed amendment, and that the request made by the president of the united states to mrs. washington, in conformity to the report of that committee, was for a monument; to which request she had consented; he, therefore, considered congress as pledged thus far and no farther; that a motion was made in this house to change the monument to a mausoleum; that the recent death of general washington at that time, prevented any person from opposing any measure which was offered, let the expense be what it would; but that the time which had elapsed since, had enabled the public mind the better to judge. the gentleman from virginia (mr. lee) and the gentleman from connecticut (mr. griswold) had dwelt a great deal upon the subject of public gratitude. it was by no means his wish or intention to lessen that sentiment, but he said that he could not give his consent to an expensive measure like that contemplated in the bill, when a measure far less expensive, in his opinion, would answer every purpose as well. mr. alston was followed by mr. huger, who advocated the erection of a mausoleum. mr. smilie replied. he considered the erection of a mausoleum as productive of unnecessary expense, as a monument would answer every rational purpose contemplated in the bill. mr. h. lee next spoke at some length in favor of a mausoleum, and read a letter received from mr. king, our ambassador at london enclosing a plan, presented to him by an eminent foreign artist, for a mausoleum of one hundred and fifty feet base, and the same height, the expense of which was estimated at $ , . mr. champlin, after some remarks, moved that the committee rise, report progress, and ask leave to sit again. which motion being carried without a division, the committee rose; and on the question to grant them leave to sit again, only three members rose in the affirmative. mr. champlin then moved the recommitment of the bill to the same committee that reported it, with the addition of two members, which was carried, and messrs. claiborne and champlin appointed. after mr. champlin's motion for a recommitment of the bill to a select committee was carried, mr. claiborne said he had risen to move that the committee just appointed be instructed to inquire into the expediency of carrying into effect a resolution passed by the old congress, on the th of august, , directing an equestrian statue of general washington to be erected at the place where the residence of congress shall be established. mr. c. said, that on a question which could not fail to excite the sensibility of every american heart, it was a subject of great regret that a division of sentiment should arise. the memory of our departed patriot lives in the affections of a grateful country, and will triumph over time. during a long life, so usefully and honorably employed, washington had reared to himself a fabric of fame, the lustre of which can neither be diminished nor heightened by any measure that we can take. but, sir, from a respect for our own, as well as for the feelings of the nation, we should endeavor to unite in the last act of attention which we propose to show this venerable character. mr. c. said that the proposition for a mausoleum was calculated to create division. the expense of such a monument would be immense, and would be viewed by many as a profuse and useless expenditure of the public money. he believed that the statue recommended by the old congress could be better justified upon principles of economy, and would meet with more general support. here mr. c. read from the journals of the old congress the following resolutions: "_resolved_, (unanimously, ten states being present,) that an equestrian statue of general washington be erected at the place where the residence of congress shall be established. "_resolved_, that the statue be of bronze--the general to be represented in a roman dress, holding a truncheon in his right hand, and his head encircled with a laurel wreath. the statue to be supported by a marble pedestal, on which are to be represented, in basso relievo, the following principal events of the war, in which general washington commanded in person, viz: the evacuation of boston--the capture of the hessians at trenton--the battle of princeton--the action of monmouth--and the surrender of york. on the upper part of the front of the pedestal, to be engraved as follows: 'the united states in congress assembled ordered this statue to be erected, in the year of our lord, , in honor of george washington, the illustrious commander-in-chief of the armies of the united states of america, during the war which vindicated and secured their liberty, sovereignty, and independence."' a monument thus designed, (continued mr. c.,) would portray in lively colors the military achievements of our late illustrious chief, and is calculated to impress upon our posterity a grateful recollection of his eminent services. mr. c. was the more interested in support of a monument of this kind, because it had been sanctioned by a unanimous vote of those venerable philosophers and statesmen who presided in our councils, at a time of the greatest danger, directed the storm of war, and tamed the rage of tyranny. it was true, that this equestrian statue would not express any of the great events of washington's civil life, but, of these, we have already many honorable testimonials; the first in order, and which he hoped would be the last in durability, was the constitution of the united states; to this instrument his name was annexed, and would be noticed with gratitude by the lovers of freedom in every age and every clime; this city is another memento of his civil life, and, if it should be the residence of all that piety, wisdom, and magnanimity, which was so devoutly prayed for by each branch of the legislature, at the commencement of the present session, this city would remain an honorable testimonial of the civil virtues of its great founder. there was no doubt, said mr. c., but that many gentlemen were also solicitous that the body of general washington should be deposited within the walls of the capitol; of this number mr. c. was one, and was desirous that a plain but neat apartment should be speedily prepared for its reception. but over his remains, instead of an expensive monument, mr. c. thought it most advisable to place a plain but neat tomb-stone, of american marble, and prepared by an american artist. and in order to convey to posterity, in impressive language, the feelings of the american nation, when the loss of our patriot, sage, and hero, was first announced, mr. c. wished to see engraved upon this tomb the addresses of each house of congress upon this occasion to the president of the united states, together with the president's replies thereto. mr. c. concluded by moving the instructions stated in the commencement of his speech. mr. claiborne was followed by messrs. craik and nott. the instruction to the committee, moved by mr. claiborne, with a slight modification, was agreed to. monday, december . another member, to wit, thomas pinckney, from south carolina, appeared, and took his seat in the house. thursday, december . another member, to wit, james sheafe, from new hampshire, appeared, and took his seat in the house. friday, december . _mausoleum to washington._ mr. h. lee, from the committee to whom was referred the several propositions made commemorative of the services of george washington, reported a bill for the erection of a mausoleum, differing in no other respects from the former bill reported, except as to the materials of which the mausoleum is to be constructed; the present bill directing it to be made of stone, the former one directing it to be made of marble. he said that the committee, after maturely considering the relative merits of all the plans proposed, had preferred the mausoleum, as well from its superior durability as cheapness, to any other. tuesday, december . _mausoleum to washington._ mr. h. lee moved the going into a committee of the whole on the bill for erecting a mausoleum to george washington. on this question the house divided--yeas , nays . mr. morris took the chair, and read the bill by paragraphs. mr. h. lee said the merits of the bill had been so often discussed, and the subject was so delicate, that he would not again offer his sentiments generally on it. as it was the opinion of several members, that the dimensions of the mausoleum should not be fixed in the law, but that they should be governed by the sum appropriated, he moved to strike out " feet at the base and of proportionate dimensions." the motion was agreed to. mr. h. lee then moved an amendment confining the ground on which the mausoleum should be erected to public property. mr. harper opposed the amendment, which was lost, only members rising in favor of it. mr. h. lee then moved to fill the blank, fixing the sum to be appropriated for erecting the mausoleum, with $ , . mr. smilie said he hoped the house would not with its eyes open go into a measure that might involve incalculable expense. it was proposed to appropriate $ , . this was probably but a small part of what would be ultimately required; and when the thing was once begun, it must be completed, cost what it would. if the architect would give security for accomplishing the work for $ , he would not be so much opposed to it. but, as it stood, he was opposed to it, as a useless expenditure of public money. mr. harper said the old story was again rung in their ears. an object, in itself highly important, was proposed, and, forsooth, because it cost some money, on the ground of economy it must be rejected. he would ask the gentleman just up whether he knew any thing about the expense of a mausoleum? and yet not professing to be informed, professing indeed to know little, he had put his vague conjectures in the room of estimates formed with deliberation by artists of the first eminence. these clamorous objections were well understood. their sole object was _ad captandum vulgus_; to create alarm about what was termed useless expense. they were intended for nothing else. to satisfy the solicitude of gentlemen an artist of talents universally acknowledged had been desired to furnish an estimate; which estimate stated that a pyramid of feet base would cost $ , . this was the estimate of an artist of such accuracy that in the greatest work ever undertaken in america, and the greatest, perhaps, of its kind, ever undertaken in the world, (he alluded to the water works of philadelphia,) the expense actually incurred had fallen short of the estimate. the same accuracy had characterized his plan and execution of the bank of pennsylvania, which was probably the greatest work of the kind executed in this country. and yet the gentleman from pennsylvania will place his vague doubts, and (mr. harper begged pardon for the expression) his total want of knowledge against the calculations of a man of practical science. the gentleman had asked whether any one could be found, who would be responsible for the execution of the work for the proposed sum. mr. harper said, if it were proper for a member of that house to say so, he would undertake himself to erect a mausoleum of feet base, and feet high, for $ , ; and for the performance of his engagement he could give the most unquestionable security, such as every member of that house would approve. he further believed that the artist before alluded to, if required, would give the necessary security. the accuracy of the estimate had been tested by every circumstance that the nature of the case admitted. the same course had been pursued, in this case, that every reasonable man was accustomed to take in his own private concerns. every such individual, who designed building a house obtained first an estimate from a skilful workman, which satisfied him. if men acted not in this way, there could be no progress in human improvements. after this information, furnished by such an artist, gentlemen ought to be satisfied without opposing to it their own crude conceptions; and mr. harper said he hoped they would cease to talk on a subject on which they were so ignorant, until they became better informed. mr. macon did not see the subject in the same light with the gentleman from south carolina. he was disposed to pay the greatest respect to his talents, but he could not give up his own opinion. the estimates made by the artist amounted to $ , ; yet the gentleman from virginia required $ , . does not this show that the gentlemen themselves have not confided in the estimate of the artist? mr. h. lee explained, and said that he thought the most proper plan for adoption was that of mr. west; pursuing that plan, $ , might be required, as there would be interior arrangements to make, additional to those contemplated by the estimate. mr. macon said he thought $ , would be sufficient. he knew not how to reconcile the difference between the estimate made in philadelphia and that made in washington; the first was only $ , ; which was a sum much below any calculated here. he did not pretend to any information on this subject, and the various modifications the bill had undergone, convinced him that no member was well acquainted with it. the estimates differed materially from each other. they could not therefore all be correct. he could not, from these considerations, feel confidence in the estimates of the gentleman from south carolina, or the other gentleman; for if they really possessed correct information, how came they so radically to differ; and the committee itself to propose so many alterations in the original bill? mr. smilie replied to mr. harper. the object of his remarks was, to show that mr. h. possessed as little information on the subject as himself. mr. rutledge.--the substance of what the gentleman says, is that he wants to do nothing. he had long thought so, and he was now confirmed in his opinion. when the man, whose loss the world deplored, departed from us, we were all shrouded with sorrow; the mournful event awakened our deepest regrets; and resolutions expressive of the national affliction at his death, and commemorative of his services, were unanimously passed by both houses of congress. those resolutions were not carried into immediate effect, owing to the disagreement of the two branches of the legislature. now, when we propose to carry them into effect, objections are started to every measure offered; objections that rise eternally in our horizon; which, whenever we pursue, fly from our reach, and which, always moving in a circle, we can never overtake. gentlemen tell us they are unaccustomed to spend public money without estimates. to satisfy the vigilance of their economy we obtain them. they then tell us they are inaccurate; their objection arises from a want of detail; they wish a minute statement of each separate charge. again, we consent to gratify their wishes, anxious for their sanction to our measures, that they may express the unanimous sentiment of congress. we produce an estimate as minute as was ever furnished by an artist on any occasion. the total amount of estimated expense is $ , , and to avoid the necessity of calling on congress again, the gentleman from virginia asks for $ , . still, after all our trouble and solicitude to satisfy the scruples of gentlemen, they continue to urge objections. one gentleman says the estimate made at philadelphia differs from that made here; another gentleman will not confide in any estimate, and another wants security. does it become the dignity of the house thus to be occupied with trifling objections on such a subject; and, in the spirit of bargaining, to waste its time in saving a few dollars? many gentlemen, anxious for this measure, had agreed to postpone the consideration of it, hoping thereby to accommodate other gentlemen in their views, and expecting ultimately a unanimous vote. but he now abandoned it. he saw no period to objections. much time had already been idly wasted. they had delayed too long to do what ought to have been done at once. let us then take the question at once, and get rid of it, though a veto should be passed upon the bill. the question was then taken on filling up the blank with $ , , and carried--yeas , nays . mr. dent moved to amend the section appropriating the sum, by substituting the word "for," in the room of the word "towards," which would fix the whole sum to be appropriated, instead of leaving it uncertain. agreed to. the committee then rose and reported the bill as amended. on the question to agree to the $ , appropriated, the house divided--yeas , nays . the speaker then put the question on engrossing the bill for a third reading. mr. claiborne was opposed to the engrossing of the bill. he hoped no gentleman would ascribe his opposition to a want of respect to the memory of our great patriot. his respect for this illustrious character had been almost coeval with his life, and would follow him to his grave. he was opposed to a mausoleum, because it would not be so respectful to the memory of washington, as the equestrian statue directed by the old congress, who had directed the battle during our revolutionary struggle, and for whose character he felt the highest veneration. the present government could not refuse to carry into effect this act of the old congress, without a violation of moral principle. he preferred a statue to a mausoleum, because the former, from representing the form and the features, would inspire the beholder with more lively emotions than a mass of stones formed into a pyramid. were the expense of a statue greater than that of a mausoleum, he would, notwithstanding, prefer it; but he believed the reverse would be the fact. he not only wished a statue raised, but also was in favor of an immediate appropriation for depositing the remains of our departed friend within these very walls, in such a manner as would not disgrace them. mr. champlin had heretofore voted from a spirit of conciliation. he was now not a little surprised to find the gentlemen from tennessee and south carolina (mr. claiborne and mr. alston) opposed to a mausoleum, though their names appeared, from an inspection of the journals of last session, among those who were then in favor of it. he considered a mausoleum as preferable to a statue, because the first was calculated to celebrate all the virtues of the statesman, as well as the hero, while the latter would be limited to his military exploits. great opposition had been made to the erection of a mausoleum, with the professed view of avoiding expense, and i admit generally that economy ought to be observed, in the expenditure of public money. but on an occasion highly interesting to the feelings, and deeply involving the character of the nation, even the appearance of parsimony should be carefully avoided. it is necessary to consider the nature and magnitude of the object for which money is required. it is not asked for, in the present instance, to commemorate a man distinguished only on the field of battle. it is not wanted to gratify family pride, or to raise a monument of despotic power and slavish submission. it is to be furnished by a great and free people, to record, in a manner worthy of themselves, their gratitude for the important services rendered to them by one of their fellow-citizens; the fruits of which i cannot but hope will be enjoyed and recognized by future generations. we are called upon by the public voice to erect a monument suited to the character of washington, who has been emphatically styled, _the man of the age_, and whose virtues may, by the record we shall make of them, become the property of distant ages. these virtues will doubtless be the theme of some able biographer, and it is wished that posterity may not search in vain for some striking evidence of our acknowledgment of them. it is indeed of infinite importance to civil society, that the memory of that great man should be perpetuated by every means in our power. we may thus sow the seeds of virtue, honor, and patriotism, in our country. he will be held up a model, to which the finger of wisdom will constantly point, to which the attention of youth will be irresistibly drawn, and the mind of every man aspiring to pre-eminence among a free people, will be riveted. the proposed mausoleum would be a structure well calculated to resist the ravages of time. as to the hand of man, at least of civilized man, we need not guard against it. the depository of the ashes of washington will never be assailed by it. it may indeed be attacked by the ruthless hand of some invading barbarian. but its only security against such an attack must be derived from the courage and fortitude of the people of the united states. and i trust they will never tamely yield up the land of their forefathers. mr. bird was against the bill, because it proposed the erection of a mausoleum, which would not be equal to the object for which it was raised without the expenditure of a vast sum of money; whereas a statue could be made, somewhat correspondent to the occasion, for a moderate sum. it was in vain for gentlemen to talk about a structure commensurate to the object. such a thing was impossible. he moved the recommitment of the bill to a committee of the whole house. the question being put, the house divided--ayes , noes ; and it passed in the negative by the casting vote of the speaker. mr. shepard said, i will do as much as any man to honor the memory of washington. i have fought and bled with him several times. i have always supported and will continue to support him. but on the score of expense, i think we are going too far. i will go so far as to have his remains placed decently within these walls. further i will not go; for i do not think we have a right to throw away the public money. mr. macon delivered his reasons against a mausoleum, and in favor of an equestrian statue; and among other remarks, said, the idea that a mausoleum would be equal to the character of washington, was preposterous. few individuals in the world were capable of drawing his character. in a few words, he would say that no character that had ever lived was equal to him, and it was his firm belief, that the world would never see his equal. mr. brown thought general washington the best man that had ever lived; and he was surprised at the ideas of gentlemen on the ground of expense. if the mausoleum were agreed to, it would not cost each person in the united states four cents; and if the equestrian statue were also made, (which he hoped would also be done, for the sake of general accommodation,) it would not cost more than two cents. it seemed to him that some gentlemen were averse to doing any thing, though they did not wish the people to think so. mr. alston would not have risen, had he not been marked by the gentleman from rhode island as an object of inconsistency. mr. champlin explained by saying he did not mean to censure the gentleman for his change of opinion, for which he doubtless had good reasons. mr. alston.--let the measures of congress be reviewed, and it would appear, that the house itself and the gentleman from rhode island had been as inconsistent as himself. he would appeal to the gentleman whether it was more honorable to desert his duty and fly a vote, than to act as he had done? mr. huger said it was unnecessary at this time to take into view the old arguments that had been urged. the proposition of the gentleman from tennessee, for an equestrian statue, was the only one he should notice. so impressed was he with the inadequacy of a common statue to express the gratitude of america, that he would rather have nothing done, than to have what was done in this backhanded way. he was disposed to treat with respect the acts of the old congress. but the act, to which the gentleman from tennessee had alluded, and which he wished this house exclusively to carry into effect, was passed in reference to the military exploits of gen. washington, because, at the time it was passed, his life had been most characterized by them. since that period circumstances had changed. if we are bound by the acts of the old congress, are we not equally bound by those of the last session? if you adopt the ideas of the gentleman, do you not hold out the commander-in-chief of the american army as deserving a splendid monument, and the father of the constitution and other great civil acts as deserving nothing? without any concert whatever, a remarkable concurrence had taken place between west, trumbull, and other respectable artists, who all gave an unequivocal preference to a mausoleum; which, in his opinion, would be far less expensive than a statue. the expense of the latter, as would appear from an estimate in the office of the secretary of state, could not be less than forty thousand guineas, deliverable at paris; and when the additional charges of transportation, insurance, and other incidental expenses, were considered, he was persuaded it could not be completed for less than two or three hundred thousand dollars. mr. j. c. smith considered the government as pledged to do that which they had promised, and which the national feeling required. mr. randolph must consider the present as a tedious and useless debate. the gentleman had declared the government to be pledged. to whom were they pledged, and for what? it was to the relics of the deceased; to have them placed within these walls. for this, there were the strongest reasons, as such a measure would be agreeable to the venerable lady to whom he had been united. if then they were so pledged, why violate this pledge, by referring the business to the secretary of state, of the treasury, of war, and of the navy; though what connection there was between the office of the secretary of the navy and the performance of the trust, he could not tell? one consideration with him was insuperable. the departure from the original plan tended, unjustly, and most cruelly, (however pure the intention,) to violate the feelings of a lady, so much troubled already. mr. j. c. smith said it had been declared by some gentlemen that the reputation of washington might be safely confided to the record of history. was it the opinion of those gentlemen that the record was to be found in the charge of murder against that illustrious character? was it to be found in the patriotic effusions of men who had pronounced all expressions of national gratitude a mockery of woe, and had declared that it was high time for those who were the sincere apostles of liberty to be done with such foolery; or was it to be found in the denunciations of a printer, supported by a state that perpetually boasted its regard to republicanism? mr. harper could not but regret that a gentleman, who possessed so lively a regret for the venerable lady alluded to, should have exhibited in this discussion so glaring a contrast between his professions and his actions, by introducing that lady into the debate, and indelicately expressing her wishes, in reference to the place where the relics of her deceased partner should be deposited. was it conceivable that to her the place could be of any importance? or was it possible that this house could be enslaved by the trifling circumstance of the _locus in quo_, or that the paltry consideration attending an action of trespass could be gravely introduced into such a debate. all that this venerable lady says amounts to this, that, accustomed from the example of her deceased friend to obey the national wishes, she submitted to that disposition of his remains that congress may make. shall we, then, in violation of the plain meaning of her words, enter into whispers of hearsay respecting wishes, which, from his knowledge of her good sense, he was persuaded had never been uttered? mr. randolph rose to explain. he had neither said, nor intended to say, that he possessed any knowledge beside that which appeared on the journals; and from that knowledge he was justified in saying that mrs. washington's compliance, as expressed by her, was not with any public will that might be expressed, but with that will which had been already expressed. whatever insinuations the gentleman from south carolina may mean to convey, his feelings of respect for every woman were sacred; nor were they limited to that sex alone. he was not disposed on this occasion to take the advice of the gentleman, who judging me by his own heart, said mr. r., may imagine me capable of disrespect to the sex. mr. harper wished the gentleman would avoid any further interruption, and reserve his remarks until he was done. he did not know, nor was he concerned to inquire into the motives of the gentleman from virginia. such inquiry would, of all others, be the least profitable or interesting, either to the house or to himself. neither had he any idea of giving advice which that gentleman would follow. he well knew that it was the most hopeless of all things to give advice to one whose own sense of propriety did not tell him what was right. those, who were incapable of receiving lessons from their own minds or feelings, were not likely to receive them from any other quarter. the feelings ascribed to mrs. washington were unfounded. the lady was incapable of entering into trifling disputes about place or time, such as the house had this day witnessed. the arguments, by which the superiority of a statue to a mausoleum was attempted to be established, were fallacious. the form and features of our illustrious friend would be preserved without the erection of any statue by us. pictures by celebrated artists were every where multiplied and caught at with avidity; and the sculptor and the painter will be employed unceasingly to keep pace with the increasing demand. likenesses may be found every where, and as perfect on the other side of the atlantic as on this. a mausoleum would last for ages, and would present the same imperishable appearance two thousand years hence, that it would now. whereas a statue would only remain until some civil convulsion, or foreign invasion, or flagitious conqueror, or lawless mob, should dash it into atoms; or till some invading barbarian should transport it as a trophy of his guilt to a foreign shore. i have beheld, said mr. h., a monument erected to a man, once considered as the patron of america, defaced, mutilated, its head broken off, prostrated with the ground. a statue, erected by the legislature of virginia to perpetuate the virtues of a man to future ages, had been destroyed. besides, a statue was minute, trivial, and perishable. it was a monument erected to all that crowd of estimable but subordinate personages, that soar in a region, elevated indeed above common character, but which was infinitely below that occupied by washington. the greatest honor which this country ever has received, the greatest honor which it ever could receive, was derived from numbering with its sons the immortal washington. shall then a mistaken spirit of economy, and a still more mistaken jealousy arrest us? honor him, it is true, we cannot. the world has charged itself with that task. posterity, as long as the world shall endure, will celebrate his virtues and his talents; those virtues and talents of which every ingredient of their happiness will be a perpetual evidence. but though we cannot honor him, we may dishonor ourselves; though we cannot increase the lustre of his fame, we may show our own meanness, cowardice, spite, and malice; and show an astonished world that we are deplorably unworthy of the high honor conferred by nature in giving us a washington. i am, said mr. h., awfully impressed by the subject. i sink under the sublimity that surrounds it. no words can reach it; mine are totally inadequate; to the feelings of the house then it must be submitted: they, after anticipating all that genius or eloquence can say, will still far surpass their boldest effusions. mr. randolph was very unfortunately situated, as he was compelled to rise, not in his own defence, but in defence of the calumniated reputation of that state which he revered, since from it he derived his birth. i will not, said mr. r., enter into an elucidation of the motives of the gentleman from south carolina, which have produced so much asperity, and such a virulence of rancor against the state of virgina, but will confine myself to the question on engrossing the bill. the gentleman has talked to us about his disregard for the _locus in quo_. mr. r. said he cared as little for the _quo modo_, as the gentleman did for the _locus in quo_. he had further told us that a statue might be overthrown by a licentious mob; and that this had actually been the case in the state of virginia. but, why had it been so? because that statue had been erected in the life-time of the person it celebrated; because it had been erected under the colonial government; and because, like every other fetter of tyranny, it was broken by the revolutionary spirit that established our liberties. but, says the gentleman, statues are raised for subordinate men, for this admiral or that general, who may deserve well of their country, but who do not merit the highest distinctions of national gratitude. if this measure of raising a mausoleum is to be only a cover for obtaining statues for temporary and secondary and trifling characters, it may have a very alarming influence upon us. it is not easy, for a man of even less sensibility than myself, to hear in silence the state in which i was born, and one of whose representatives i am, calumniated in the manner in which it had been that day, by the gentlemen from connecticut and south carolina. in defence of that state, actuated by a love to it, and not from any respect to its detractors; not to repel any imputation of meanness, of cowardice, of malice, which the gentleman from south carolina has called ours, (meaning, i suppose, his own,) i will inform him, and the gentleman from connecticut, that that state was the first to celebrate the fame of the hero of america, by erecting a statue to him in the capitol at richmond. the gentleman from connecticut objects to a confidence in the record of the historian. does the gentleman wish to suppress the history of the political events of ? or does he believe that these events will be handed down in association with the bloody buoy, and porcupine's works? perhaps he has formed from his own mind a proper selection for our children, and is against the press handing down any thing else? mr. h. said, that the gentleman from virginia had misstated what he had said. he had cast no reflection on the state of virginia; but had barely stated two instances of statues overthrown and destroyed, to illustrate their frailty. during the preceding debate, mr. claiborne stated that the committee to whom this subject had been committed, had obtained several estimates; among which was one in writing, by dr. thornton, which states with confidence that the expense of an equestrian statue would not exceed from eight thousand to fifteen thousand pounds currency. after some remarks from mr. shepard and mr. lyon, the yeas and nays were taken on engrossing the bill, and were--yeas , nays , as follows: yeas.--george baer, bailey bartlett, john brown, christopher g. champlin, william cooper, william craik, franklin davenport, john dennis, george dent, joseph dickson, william edmond, thomas evans, abiel foster, jonathan freeman, henry glenn, samuel goode, chauncey goodrich, elizur goodrich, roger griswold, william barry grove, robert goodloe harper, archibald henderson, william h. hill, benjamin huger, james h. imlay, john wilkes kittera, henry lee, lewis r. morris, abraham nott, harrison g. otis, thomas pinckney, jonas platt, leven powell, john read, nathan read, john rutledge, jr., john c. smith, samuel tenney, george thatcher, john chew thomas, richard thomas, peleg wadsworth, lemuel williams, and henry woods. nays.--willis alston, theodorus bailey, john bird, phanuel bishop, robert brown, gabriel christie, matthew clay, william charles cole claiborne, john condit, john davenport, thomas t. davis, john dawson, joseph eggleston, lucas elmendorph, edwin gray, andrew gregg, john a. hanna, joseph heister, david holmes, george jackson, aaron kitchell, michael leib, matthew lyon, james linn, nathaniel macon, peter muhlenberg, john randolph, william shepard, john smilie, john smith, richard dobbs spaight, richard stanford, thomas sumter, benjamin taliaferro, john thompson, abram trigg, john trigg, lyttleton w. tazewell, philip van cortlandt, and joseph b. varnum. the third reading of the bill was fixed for thursday week; when the house adjourned to tuesday, the thirtieth. tuesday, december . _the henderson claim to land guarantied by treaty to chickasaw and cherokee indians._ another member, to wit, robert williams, from north carolina, appeared, and took his seat in the house. a memorial of pleasant henderson and others, inhabitants of the state of north carolina, was presented to the house and read, stating their claims to certain lands ceded by the state of north carolina to the united states, with a reservation of the claims of the petitioners; the possession of which lands the united states have since guarantied by treaty to the chickasaw and cherokee indians; and praying relief in the premises. _ordered_, that the said memorial do lie on the table. wednesday, december . _the territory of columbia._ on motion of mr. h. lee, the house went into a committee of the whole on the bill in relation to the territory of columbia. mr. randolph moved to strike out the first section, which is in these words: _be it enacted by the senate and house of representatives of the united states of america in congress assembled_, that the laws of the state of virginia, as they existed on the first monday of december, in the year , shall be and continue in force in that part of the district of columbia which was ceded by the said state to the united states, and by them accepted for the permanent seat of government; and that the laws of the state of maryland as they existed on the said first monday in december, shall be and continue in force in that part of the said district which was ceded by that state to the united states, and by them accepted, as aforesaid. mr. h. lee said, that he was far from considering this bill as an act of supererogation. the constitution had prohibited the states of virginia and maryland from legislating for the territory; and it now became a question, whether the existing laws of those states were in force, which question might come before the judiciary. to obviate all doubts, this bill, in the shape of a declaratory one, was reported. mr. nicholas said, this bill is not, in my opinion, merely an act of supererogation, but an act of immense mischief. i do not agree with my colleague in the construction he gives the constitution. he is of opinion, that the powers given to congress on this subject must be exercised by them. i think differently. these powers are like many others conferred, which may or may not be exercised. it had never been contended that we are obliged to carry into execution all the powers with which we are invested. it is true, that we have nearly exhausted the letter of our charter, in the extent to which we have gone; but this fact furnished no reason for going still further. a construction contrary to that contended for had been given by congress in the exercise of their power. the act of acceptance passed by congress, confirming the cessions made by virginia and maryland, expressly declares, "that the operation of the laws of the state within such district shall not be affected by this acceptance until the term fixed for the removal of the government thereto, and until congress shall otherwise by law provide." great force was attached to that part of the constitution which gave congress exclusive legislation over the territory. but the same clause of the constitution gave the same power over forts, magazines, arsenals, &c. yet this power had never been assumed by congress. the possession of the right had heretofore been considered as sufficient; the exercise of it was reserved until peculiar circumstances should occur, which rendered it necessary. i believe the committee are not prepared to sanction this bill. to sanction it would be to place the inhabitants of the territory in a situation for which they would not be thankful. it would impose upon them all the laws of virginia and maryland, as they existed on the first monday of december, without those improvements which experience may suggest. if this bill passed, it would leave a considerable portion of the inhabitants of the territory without any judicial authorities to which they could appeal. there were parts of fairfax, montgomery, and prince george's counties, which would have no courts to which they could apply. another consequence that would result from the construction attempted to be given to the constitution, was the deprivation of the inhabitants of all participation either in federal or state legislation. as, by the construction, they would cease to be the subjects of state taxation, it could not be expected that the states would permit them, without being taxed, to be represented. could any man desire to place the citizens of the district in such a state? to deprive them of the common right of participating in the passage of laws which all the citizens enjoyed? if the construction be sound, that we are bound to legislate, then all the judicial proceedings which had taken place since the first monday in december, whatever affected either property or persons, were mere nullities. i do not, however, believe the construction to be sound. i believe it opposed both to the spirit of the constitution and to the construction hitherto given by congress. but were the construction just, to adopt the proposed bill would be to act in a way inadequate to the importance of the subject, which, involving in it a system of government for a large portion of citizens, ought not to be acted upon with precipitation, but ought to be conducted by the collected wisdom of congress derived from mature and deliberate reflection. mr. h. lee said, my colleague is wrong in supposing this bill a part of a permanent system. it is only intended to cure an evil which some persons have supposed to exist, from the doubtful jurisdiction of the states of virginia and maryland. mr. otis said, though i respect the talents of the committee who brought in the bill, yet i cannot discover that it contains a single new view or provision. though i am myself at a loss to account for the necessity of the bill, the committee were certainly right, if they entertained doubts, to attract the attention of the house to them. by the first act of congress accepting the cession, the united states have legislated in the very way the gentleman from virginia now proposes. as it appeared at that time impossible to form a code of laws, those of maryland and virginia were confirmed till congress should legislate. if it were true that congress were bound to legislate themselves, an equal obligation existed at that time with that which existed at present. their not having done so was a strong argument against the construction now contended for. to pass such a law as that now offered, instead of removing, would be the very means of exciting doubt. the time may arrive when congress must go into the subject in detail, and make those provisions that were necessary for a great city. but at present such a step was not called for: the territory had gone on very well for ten years without the interposition of congress, and i have no doubt it will continue for some time to come to do well without it. mr. bird said, this question, in my opinion, is susceptible of a very clear and precise solution. did the acts of cession by the states, and of acceptance by congress, take away the jurisdiction of those states, and vest it in congress? the acts of maryland and virginia make a complete cession of soil and jurisdiction to congress. this cession has been accepted by congress. what is the consequence of one sovereign transferring all jurisdiction to another sovereign? does not the power that cedes give up all right whatever to that which accepts? the words of the constitution are that congress shall exercise exclusive legislation. if congress exercise exclusive legislation, does it not follow that no other body can exercise any legislation whatever? the gentleman from virginia (mr. nicholas) does not deny the power altogether, but limits it, as a power that may or may not be exercised by congress; and, in illustration of his opinion, instances the power to naturalize and to pass bankrupt laws. but the cases are not analogous. these last are powers that congress may or may not exercise. the constitution does not apply to them the term exclusive; nor are they shut out by the actual words of that instrument or by necessary inference. over some objects congress have partial authority; but in this case their authority is absolute and exclusive of all other; from which irresistibly follows the absolute cessation of all power in the ceding body. it was undoubtedly the intention of the framers of the constitution, that after this territory became the actual seat of government, no authority but that of congress should be in force. the act of cession by the states, after stating the terms of cession, contains a proviso, that the power of legislation thereby vested in congress, shall not impair the force of the laws of maryland and virginia, till congress shall otherwise by law provide. a proviso is to prevent something from being done that without it would be done. congress declared the same thing when they accepted the cession with the same proviso. this proviso tends to supersede the cession. having this effect it must fall, as conflicting with the act to which it is a proviso. it must be considered as absolutely void. a proviso is intended to prevent the operation of a particular thing, not to give an operation to it. it may prevent the enaction of a particular law, but it cannot re-enact that law. a difference of opinion seemed to exist as to the period when the powers of the states were superseded. it was the opinion of some gentlemen that they ceased on the completion of the act of cession. the committee consider them as ceasing on the first monday in december of the present year. it became the house solemnly to settle this point before they entered into the consideration of a complicated system of government. if the legislative powers of the states had ceased, it follows, as a necessary consequence, that the judicial powers had also ceased. for these reasons i think it will be best to declare that things shall remain in _statu quo_. if the ordinary jurisdiction established be not competent, it may easily be made so. mr. randolph was not prepared to enter into a discussion of the important point before the committee. he would only state the dilemma in which the inhabitants of the district of columbia would be placed by the construction given to the constitution by his colleague, who was of opinion that all legislative and judicial powers derived from virginia and maryland, ceased on the first monday of december. if this construction were true, was it not equally true that the bill now proposed would be of the same validity, and of no more validity, than the act of acceptance passed by congress. from his being unprepared, what he offered was submitted more in the form of hints than of correct arguments. but it seemed to him that if the construction contended for should prevail, it would disfranchise the corporations of georgetown and alexandria, and all other corporations within the district. would it not place the territory in the situation of a conquered country? according to this construction, the territory was in a state of anarchy, and murder, if committed, would be no crime. further, if the constitutional provision is obligatory upon us to assume exclusive legislation, are we not bound to establish uniform laws throughout the entire district? and of course are we not prohibited from establishing one system in one place, and a different system in another? one other objection merited the gentleman's notice. the laws of virginia precluded every officer under its government from holding any federal office. from the impression made on his mind by these considerations, mr. r. said, he would be wanting to himself and his country, if he agreed to the bill. he hoped, therefore, that the committee would rise, and not precipitate a decision. mr. harper was in favor of the motion that the committee should rise, for the purpose of recommitting the bill to a select committee. he would state his reasons: the object of the first section was to assume the jurisdiction. that was his object. he wished the establishment of a judiciary competent to the carrying into effect the laws now existing. he wished this object to be accomplished in a fair, open, direct way. at some future period congress might find it necessary to enter on a system of legislation in detail, and to have established numerous police regulations. at this time, the present exigency would be provided for by confirming the laws of virginia and maryland, and by giving effect to them by the institution of a competent judicial authority. mr. nicholas said, that he should vote for the committee rising, from a different motive from that which actuated the gentleman from south carolina. he hoped the business would be suffered for the present to sleep. the construction given to the constitution by the gentleman from new york, did not render it merely expedient in congress to assume jurisdiction, but rendered it an absolute duty. in reply to his remarks, the gentleman had alleged that the authority given by the constitution in relation to this territory, differed from the other powers vested in congress, inasmuch as the former investment of power had connected it with the word _exclusive_; whereas the latter had not. the meaning which mr. n. affixed to that word, was altogether different from the one now contended for. the constitution does not say congress shall possess exclusive power of legislation; but that they shall have power of exercising exclusive legislation. the acts of cession and acceptance contained a construction directly opposed to that now made. they declare that the laws of maryland and virginia shall continue till congress shall alter them. their cessation is made to depend on an uncertain event, viz: whether congress shall legislate or not. not a tittle in the constitution or in our practice, under the constitution, infringed our liberty to act or not to act. what would be the effect of this law on the inhabitants of the territory? it would impose on them the laws of maryland and virginia, as they existed on a particular day, without any capability of improvement from the improved code of those states. mr. n. had heard of no inconveniences which had arisen from the non-assumption of power by congress. the people in the territory of columbia had been a happy people for more than a hundred years under their state governments; and, he had no doubt, would remain so without the interposition of congress, who, at present, were unqualified to act. after some further remarks by messrs. harper and h. lee, the question was taken on the committee rising, and carried without a division. the committee rose; the chairman requested leave to sit again, which was not granted. mr. harper then moved to recommit the bill to the same committee that introduced it. he said, the objection made by the gentleman from virginia to the assumption of power by congress goes to say that the constitutional provision, the acts of cession of maryland and virginia, and the act of acceptance by congress, shall be all a dead letter; and that the territory shall continue, as heretofore, under its old jurisdiction. this was, to all intents and purposes, the amount of the gentleman's remarks. he asked, what necessity for the exercise of power by congress? had not the citizens lived happily for a hundred years under the state governments? this mr. h. did not dispute. it was probably true that they had lived as happily as other portions of citizens under the state governments. but the provision of the constitution on this subject had not been made with this view. it was made to bestow dignity and independence on the government of the union. it was to protect it from such outrages as had occurred when it was differently situated, when it was without competent legislative, executive, and judicial power, to ensure to itself respect. while the government was under the guardianship of state laws, those laws might be inadequate to its protection, or there might exist a spirit hostile to the general government, or at any rate indisposed to give it proper protection. this was one reason, among others, for the provisions of the constitution, confirmed and carried into effect by the acts of maryland and virginia, and by the act of congress. the object of the gentleman was to defeat all these acts and all these arrangements, in subversion of that provision which the constitution had made, and of that necessity which it had foreseen. the gentleman from virginia requires more time. he thinks we are not prepared to legislate. but if his (mr. h.'s) ideas were adopted, there would be no occasion for this. the territory has laws; and mr. h. believed these laws would answer very well for fifty years, without giving congress much trouble to modify them. the establishment of a judiciary would be very easy, and would require little time. as to a police, it may be necessary hereafter. at present it was not necessary. with regard to a corporation, he was against it at present, and he did not think it would ever be necessary. mr. nicholas did not consider the power imparted by the constitution as imperative. he, therefore, could not fairly be charged with a desire to deviate from the designs of its framers. the power was like a coat of armor, intended to protect the government in periods of danger, and not to be worn at all times for parade and show. remarks had been made to show that the dignity and independence of the government required the assumption. all such arguments, when set against the happiness of the people, were inconclusive; mr. n. had always been taught to consider the true dignity of the government as indissolubly connected with the happiness of the people; and was unable to unlearn all that he had heretofore acquired to this effect. mr. craik agreed with the member from south carolina, as far as his remarks went, but he did not think they went far enough. he was himself friendly to the institution of a local government for local purposes, leaving all federal powers to congress. if the bill should be recommitted, he would be prepared to offer a plan conformably to these ideas. he felt no alarm at the doubts suggested of the validity of the laws of maryland and virginia. he believed that they were still in force; and did not think there was any absolute necessity for congress to act at all at present. still, he thought that delay would only multiply the inconveniences already experienced in the formation of a plan of government. a plan might be framed, to protect the general government as well as, in some degree, the inhabitants of the territory, from any tyranny that some gentlemen supposed might be exercised by congress. he concluded, by expressing a hope that a completely organized system might be formed and adopted. thursday, january , . the house of representatives having received information of the death of major general thomas hartley, one of its members, who has represented the state of pennsylvania, in that branch of the national legislature, from the commencement of the government until his death, do, therefore, unanimously, _resolve_, that the members testify their respect for the memory of the said thomas hartley, by wearing a crape on the left arm, for one month. _resolved_, that the speaker address a letter to the executive of pennsylvania, to inform him of the death of thomas hartley, late a member of this house, in order that measures may be taken to supply the vacancy occasioned thereby. _mausoleum to washington._ an engrossed bill concerning george washington was read the third time; and, on the question that the same do pass, mr. dawson moved to recommit it. lost--ayes , noes . mr. randolph moved to refer the bill to a select committee. lost--ayes . mr. spaight and mr. davis then assigned their reasons for voting against the bill. the question was then taken on the passing of the bill, and it was resolved in the affirmative--yeas , nays , as follows: yeas.--bailey bartlett, john brown, christopher g. champlin, william cooper, william craik, john davenport, franklin davenport, john dennis, george dent, joseph dickson, thomas evans, abiel foster, jonathan freeman, henry glenn, samuel goode, chauncey goodrich, elizur goodrich, roger griswold, william barry grove, robert goodloe harper, archibald henderson, william h. hill, benjamin huger, james h. imlay, john wilkes kittera, henry lee, silas lee, lewis r. morris, abraham nott, harrison g. otis, thomas pinckney, jonas platt, leven powell, john read, nathan read, john rutledge, jr., john c. smith, james sheafe, samuel tenney, george thatcher, john chew thomas, richard thomas, peleg wadsworth, lemuel williams, and henry woods. nays.--willis alston, theodorus bailey, phanuel bishop, robert brown, gabriel christie, matthew clay, william c. c. claiborne, john condit, thos. t. davis, john dawson, joseph eggleston, lucas elmendorph, edwin gray, andrew gregg, john a. hanna, david holmes, george jackson, aaron kitchell, michael leib, james linn, nathaniel macon, peter muhlenberg, anthony new, john nicholas, john randolph, john smilie, john smith, richard dobbs spaight, richard stanford, thomas sumter, benjamin taliaferro, john thompson, abram trigg, john trigg, philip van cortlandt, joseph b. varnum, and robert williams. _resolved_, that the title of the said bill be "an act to erect a mausoleum for george washington;" and that the clerk of this house do carry the same to the senate, and desire their concurrence. friday, january . another member, to wit, james a. bayard, from delaware, appeared, and took his seat in the house. on motion of mr. griswold the house went into a committee of the whole on the judiciary bill; the house dividing--yeas , nays . the bill was read through, when the committee reported progress, and asked and obtained leave to sit again. _sedition law._ the house proceeded to consider the report of the committee of revisal and unfinished business, made the thirty-first ultimo, which lay on the table, and the same being again read, in the words following, to wit: "the committee of revisal and unfinished business further report, in part: "that, on examining the statutes of the united states, they find that the act, entitled 'an act in addition to the act, entitled "an act for the punishment of certain crimes against the united states,"' passed the fourteenth day of july, one thousand seven hundred and ninety-eight, will expire on the third day of march, one thousand eight hundred and one. "and the said committee report their opinion, that the above-mentioned act ought to be continued; and, therefore, recommend the following resolution: "_resolved_, that the committee of revisal and unfinished business be authorized to report a bill for continuing the act, entitled 'an act in addition to the act, entitled "an act for the punishment of certain crimes against the united states,"' passed the fourteenth day of july, one thousand seven hundred and ninety-eight." it was moved and seconded that the said report be committed to a committee of the whole house. and the question being taken thereupon, it was resolved in the affirmative--yeas , nays . _ordered_, that the said report be committed to a committee of the whole house on tuesday next. monday, january . several other members, to wit: from kentucky, john fowler; from virginia, samuel j. cabell; and from new york, edward livingston, appeared, and took their seats in the house. thursday, january . _rules for electing president when no election by electors._ the following resolution, proposed by mr. rutledge, was presented to the house, which, being read, was ordered to lie on the table. "_resolved_, that a committee be appointed to prepare and report such rules as, in their opinion, are proper to be adopted by this house, to be observed in the election of a president of the united states, whose term is to commence on the fourth day of march next, provided the electors appointed under the authority of the states have not elected a president for that term." friday, january . _election of president when the two highest on the list voted for have an equal number of votes._ mr. bayard submitted the following resolution, to wit: _resolved_, that, in the event of its appearing upon the counting and ascertaining of the votes given for president and vice president, according to the mode prescribed by the constitution, that an equal number of votes have been given for two persons, that as soon as the same shall have been duly declared and entered on the journals of this house, that the speaker, accompanied by the members of the house, shall return to this chamber, and shall immediately proceed to choose one of the two candidates for president; and in case, upon the first ballot, there shall not appear to be a majority of the states in favor of one of the candidates, in such case the house shall continue to ballot for president, without interruption by other business, until it shall appear that a president is duly chosen; and, if no such choice should be made upon the first day, the house shall continue to ballot from day to day, till a choice shall be duly made. _ordered_, that the consideration of the said motion be postponed until monday next. monday, february . a new member, to wit, ebenezer mattoon, returned to serve as a member of this house for the state of massachusetts, in the room of samuel lyman, who has resigned his seat, appeared, produced his credentials, was qualified, and took his seat in the house. _election of president._ a motion being made and seconded that the house do come to the following resolution, to wit: _resolved_, that a committee be appointed to prepare and report such rules, as, in their opinion, are proper to be adopted by this house, to be observed in the choice of a president of the united states, whose term is to commence on the fourth day of march next, if, when the votes which have been given by the electors appointed under the authority of the states shall have been counted, as prescribed by the constitution, it shall appear that no person for whom the electors shall have voted, has a majority, or that more than one person, having such majority, have an equal number of votes: _ordered_, that mr. rutledge, mr. nicholas, mr. griswold, mr. macon, mr. bayard, mr. taliaferro, mr. foster, mr. claiborne, mr. otis, mr. davis, mr. morris, mr. champlin, mr. baer, mr. cooper, mr. linn, and mr. woods, be appointed a committee, pursuant to the said resolution. _ordered_, that the motion made on friday last relative to the mode of commencing and continuing the ballot for the choice of a president of the united states, be referred to the committee last appointed. _district of columbia._ the house then went into committee of the whole on the bill for the government of the district of columbia. while the question was being taken for the house to resolve itself into a committee, mr. smilie rose and moved the postponement of this order till the third day of march next. he made this motion, he said, in order to try the sense of the house, whether they were determined to assume the jurisdiction or not. he hoped it would not, and was proceeding to show his reasons, when the speaker reminded him of the order of the house. he could not be permitted to discuss the merits of the bill under this motion. mr. smilie conceived the question to affect the bill generally, and simply to be, whether the house would agree to disfranchise some thousands of persons of their political rights, which they now enjoyed. if this was not considered an object of importance enough to command attention, he must confess other gentlemen saw it in a very different light from that in which he viewed it. by the passage of this bill, the people of the district would be reduced to the state of subjects, and deprived of their political rights, and he very much doubted whether not of their civil rights also. if, indeed, there was such an imperious necessity of assuming the jurisdiction, of which he was by no means convinced, then it must be done; but, if that great and immediate necessity did not exist, why should this privation of rights take place? if it was necessary to reduce the city of washington to a state of local government by an incorporation, he contended that act could be done by the state legislature; as he did not conceive the local demands of the people called for it, as they could want no such assumption as the bill contemplated, and as he could perceive no advantage to be derived to the general government thereby, and as the assumption would eventually injure the people, he trusted it would be postponed, at least. mr. rutledge said, he had always uniformly opposed any motion for postponing a bill, the consideration of which the house had not gone into. although it might be in order, it could not be perfectly fair, from various considerations; if, however, it were only from its tendency to preclude the investigation of the bill, it were sufficient. the gentleman had stated it not to be necessary. who are to judge? most assuredly the people belonging to the territory. and what have they said? why, sir, they have prayed the house to assume the jurisdiction. from this petition the subject was referred to a committee, and this committee have reported a bill, and a bill well discussed and well matured in its detail. to refuse this bill from a diversity of sentiment, would be to insult the committee, and to insult the people of the territory. if the gentleman wishes to please the people, why does he not suffer the consideration of the bill to proceed, and afford his aid in making it what he supposes their desires would concur in? perhaps the gentleman has not read the bill. mr. r. said, if he had not, how was he to know whether it was good or bad? something must be done. he wished to get at that something, but was precluded by the motion. it certainly became the gentleman to show how this bill would operate injuriously upon the people, as a reason for his motion. disfranchisement, to be sure, had been mentioned as the result of this bill; but how was the house to know that would be its tendency, except by going into its investigation? mr. craik, also, considered this order of the house as the most unfair one among the rules of the house. however, it must be permitted while the order continued. the gentleman had said the people were in a state of vassalage; how was this declaration to be refuted, if the order of the house forbade the investigation into the application of this bill to the liberties of the people? the gentleman further said, that the people did not desire this assumption of jurisdiction. were he, mr. c. said, to give an opinion upon the subject, it would be drawn from the same source with that expressed by the gentleman, but of a very different import. he should say, as far as his knowledge of their sentiments extended, and he professed to be pretty well acquainted with their ideas upon this subject, that their feelings, their interests, and their desires conspired to encourage the assumption, and to prevent the postponement of the subject. as the immediate representative of a large proportion of them, he could say that much uncertainty and disquiet convulsed the minds of many good and wise men among them; that their present uncertainty was truly deplorable; that serious doubts existed with judicious men how far the grants and acceptance of lands, or of their papers, afforded them security for value received; doubts existed, in all their acts of negotiation, whether their respective state laws held any government over them? and this state of insecurity as to their property, could not fail to have an injurious effect. they doubted whether all other jurisdiction did not immediately cease, upon the removal of congress to the district; and should congress break up without assuming the jurisdiction, and taking other suitable measures to fix the government, it would not fail to paralyze every exertion and effort toward a successful establishment. no man at present can assure himself of the right by which he holds his property, or remove his apprehensions. they now called loudly upon the national government to remove from them this state of doubt and uncertainty; this is the object of the bill before the house; by this bill, a variety of inconveniences are removed, and the government use their effort to make their situation at least more certain; and, he had no doubt, more safe and desirable. this it was incumbent on the government to do; and this, he trusted, a majority of the house would be disposed to do soon. if the objects or provisions of the bill did not meet that gentleman's desires, he wished an opportunity to hear the objections, to enable him, as far as in his power, to remove them. mr. smilie was proceeding to show that, at any rate, such a bill as the present ought not to pass, when the speaker interrupted him, saying that any arguments that went to show that the third day of march was a more proper time than the present for this bill to pass would only be in order. mr. smilie continued to show the impropriety of the bill, and the inevitable injuries that must be sustained by it, when he was again reminded of the question of order. mr. s. proceeded: that it might be the wish of some of the people, he would not say; but he denied that such a wish had been expressed, and therefore it ought not to be considered as correct. as to the question of doubt on the minds of the people, whether or not they held their property secure, not being certain of the existence of their former state laws, he referred to the acts of cession, passed by the states of maryland and virginia respectively, the words of which were, that the laws remained in force "until congress shall by law otherwise provide." under this express provision, the cession was made by the two states; and by this provision the government of the united states accepted the grant of the ten miles square. and, therefore, until congress by law should accept of the jurisdiction and nullify the laws of those states over the district, there could be no doubt but they remained in full force, and property was held as secure under those laws as ever. as he had before observed, he contended that an act of incorporation could be obtained for the city of washington without this bill. from all these grounds, he believed the bill to be at present unnecessary. mr. h. lee did not wonder at this opposition, considering the quarter from whence it came; perhaps, he said, if he had come from pennsylvania, the idea of losing the general government might instigate him to wish to give the stabbing blow to every act which should go to the establishing of that government in another place. but, he trusted, as these local reasons could not influence gentlemen from other states, they would not concur in his arguments. he trusted other gentlemen would lay to their hands and join to make this district a settled government, and go into the examination of the principles proposed to accomplish that measure. he hoped not merely words of kindness escaping from the lips of gentlemen, would be deemed by them sufficient, but that their efforts would be used to produce a well-digested and valuable government, for the security of their civil and political rights. with respect to the act of cession, he contended that the solemn injunctions of the constitution were detailed in words upon which the most critical could not find wherewith to hang a doubt. there the congress of the united states were enjoined to "exercise exclusive jurisdiction." when was this jurisdiction to commence but at the period when the general government should occupy it? was not, then, this spot become the permanent seat of the government of the union? were not the different departments, executive, legislative, and judicial, assembled, according to the constitution, in this district? how, then, could the respective states of virginia and maryland a moment longer possess the jurisdiction? it was completely done away, and nothing was now wanting to remove the miserable state of suspense the people now felt, but the declaration of the government that this was the case; that moment would all their fears be appeased. as a friend to those people, then, as much as that gentleman could be, he hoped an opportunity would be given to examine the bill, not doubting but it would be made to meet the wishes, as he was assured it would be the interest of the people to be governed by it. mr. macon said the motion was perfectly in order, and explained some of the cases for which it was established, as a rule of the house. as to the jurisdiction being assumed by the removal of congress here, as the gentleman last up had said, were that the case, not only by this bill would it be assumed, but the acts of the two states must have ceased from the day congress first sat here; a deduction by no means supported. the only evidence the house had of the desire of the people to come specially under the national government, was a petition from alexandria, except that the gentleman from the district had learned so among his friends. but did that express the will or wishes of the inhabitants of the surrounding country. as he believed the laws of the states to be in full force; as he believed they would remain so until otherwise enacted by congress, and as postponing the bill till the third of march would afford the people a large time to reflect on the subject, and express their will more generally, he hoped the postponement would take place. he would remind the house that this measure once taken, could not be undone; and, therefore, prudence would dictate that time should be taken to do it well. the act could not be repealed without amending the constitution. if the gentleman only calculated upon an opposition from pennsylvania, he was mistaken. mr. m. presumed that he could not be supposed to have local attachments, residing very far from the former, or the present seat of government; he was, notwithstanding, opposed to taking up this subject at present, and even during the present session. the delay of acceptance could not displease the inhabitants, if they were satisfied as to the present jurisdiction, which did not, in his opinion, admit of a doubt. it was impossible that the postponement could be attended with any inconvenience; they had been in the same situation for ten years, and wherein could be the inconvenience of their remaining so? nay, there must be advantages in their usages and customs being continued to them. he wished this matter to be postponed till another session. mr. bird never could suppose that the members of the legislature would be satisfied with their removal from a place of accommodation to a wilderness, and with subjecting themselves to the inconveniences of this place, without exercising all the powers intrusted to them, and taking the jurisdiction to the government, the members and subordinates of which were to subject themselves to the code of laws under which they should place themselves. a motion, therefore, to continue the jurisdiction out of the hands of the government, much surprised him. all the arguments used by the gentleman in favor of a postponement, would operate fully to the entire abandonment of the subject; and did he suppose that all the expense attending the removal of the whole government, all the inconvenience experienced, would be, or ought to be, borne without the enjoyment of that constitutional right, nay, injunction, of "exclusive legislation?" what could have been the reason why congress was to assume this exclusive legislation? did not the members of the convention know that a great quantity of public treasure would be drawn together into this place? did they not suppose it of importance to secure the privileges and rights of foreign ministers, who would necessarily be brought to reside in this district? did they not consider the number of persons attached to the government worthy of the special regard of the national legislature? could any gentleman conceive that these were not too great powers to be intrusted to any state whatever? else why was the provision for exclusive jurisdiction made? to avoid putting those powers into execution, he firmly believed, would be omitting a great and important duty. but, were it not for the words of the constitution, the words of the acts of cession made by the states were as ample upon the subject as one sovereign power in the act of granting, and another sovereign power in the act of receiving a cession, could make. this was precisely the case; the two states made a full and complete cession of the jurisdiction to the general government, upon the terms of the constitution, which were to "exercise exclusive legislation, in all cases whatever, over such district," which had, by the cession of those particular states, and the acceptance of congress, become the seat of the government of the united states. how, he would ask gentlemen, could this be granted, and yet retained? it was absurd to suppose a man could grant a piece of land, and by the same instrument retain it. but suppose this was a doubtful subject, whether or not the laws of the two states were in force in the district; would the gentleman still wish to leave it in doubt? surely no new laws could be made by those states to affect this district, actually made the seat of government, and he contended that none of the laws whatever did exist here, and that the power of the civil officers actually had ceased; it therefore required no painting to show that the state of the place was truly deplorable. would the gentleman yet wish to leave the district without laws, and merely lest it should take away their suffrage? that the people could not be represented in the general government, mr. b. admitted. but where was the blame, if any could attach? certainly not to the men who made the act of cession; not to those who accepted it. it was to the men who framed the constitutional provision, who peculiarly set apart this as a district under the national safeguard and government. but, he contended, there was no injury sustained. what less compensation than the particular legislation of this district could be required for the removal of the government, whereby in these almost uninhabited woods the beginnings of a rich and prosperous city was commenced, and made the capital of the united states? the motion for postponement was withdrawn without a question being taken, and the house resolved itself into a committee of the whole on the bill. mr. smilie moved to strike out the first section of the bill. mr. smilie said he would willingly give the reasons which prompted him to make the motion, and he hoped the gentleman would as freely make his reply. if it could be proved to him that the rights of these people could be reserved by the passage of the bill, it would give him pleasure, but, believing it to be impossible, he wished to destroy the bill. it could not be denied but that the people of this district were precisely in the same situation at present which they always had been, and subject to the same laws, but would it be so when the government once accepted the cession? it would not. not a man in the district would be represented in the government, whereas every man who contributed to the support of a government ought to be represented in it, otherwise his natural rights were subverted, and he left, not a citizen, but a subject. this was one right the bill deprived these people of, and he had always been taught to believe it was a very serious and important one. it was a right which this country, when under subjection to great britain, thought worth making a resolute struggle for, and evinced a determination to perish rather than not enjoy. another, and an important right, of which those people were about to be deprived, was, that their judges and their governor were not to be the choice of themselves, but of the president. the privilege of a local legislature might be given to the people, but of what avail could they be if the governor appointed by the president could deprive them of every act they might make by his negative? where was their security if the acts of these representatives of the people could be to-morrow revoked by a power deriving authority from elsewhere? much as gentlemen might talk about dignity of government, nothing, he thought, would more comport with true dignity than liberty, and without it dignity of government was not worth a name. it surely must be disagreeable for the government to be in the midst of a people who are deprived of their rights, and what insecurity there ever had been, or ever would be, to the government, from its residence under the laws of the states, he could not conceive. he had never known of any. if he could be convinced that the people would not be deprived of these rights, among others, he would agree to some such bill as this. mr. dennis acknowledged that had he the same impressions as the member who had just sat down, he would not hesitate for a moment to believe that liberty had been forced to yield to a reign of absolute slavery. but from a consideration of the interests of the people, of the dignity of the government, and of the seat of the congress, together with the reflections of the gentleman who had just resumed his seat, he felt himself called upon to make some observations by way of an answer. as to the interests of the people, could it for a moment be doubted that a local government, a judiciary, and a legislature, would be highly advantageous? could any man doubt but it would be more convenient and advantageous for the inhabitants to attend the courts in this place than to be taken away to richmond or to annapolis? it had been always an approved privilege that justice should be brought home to every man's door, and where could it be more so than by the establishment of a judiciary, especially for this district? nor were the advantages less, he contended, in the legislative department. if a ready communication with their representatives was desirable to the people, by the residence and sitting of the representatives of this district being within itself, the communication was easy, and the rights of the people in their local concerns more attainable, surely, than though they had to go to richmond or to annapolis. but, taking a more comprehensive view of the subject, mr. d. asked if the general interests of the district would not be more secured by persons immediately acquainted and concerned, than by persons of different states, and at a distance from the place? one or two representatives to each legislature would be the utmost that the district could send, and these placed among men of different interests, what could be expected compared to a body such as is prescribed by this bill, drawn from among the people themselves? in these legislatures, the numerous local circumstances which must call for attention in a newly planted and rapidly growing capital, never can receive due attention. every person must know that a great proportion of business must arise from a commercial city. from observation he could say that about one-third of the business of the legislature of maryland usually arose from baltimore alone. as this city, therefore, grew in population and in trade, the demand for legislative attention would increase, and either its interests must be neglected, or the sitting of the state legislatures must be protracted too far. besides this, experience must have taught gentlemen that numerous bodies could not so well attend to the minute advantages of a place like this as small bodies, and particularly such as well knew its situation and circumstances. it had been said that these people were happy. mr. d. admitted it; but a change of circumstances made an inevitable difference, and required a different mode of legislating. this district of the general government, being a part of two states, must require an alteration from its former government. surely the organization of a local body must be more advantageous than any modifications which could be made by those two legislatures. so far from a rule of despotism then being over these people, he thought the passing of this bill would much increase their prosperity. it was said that, by the assumption of the jurisdiction, these people would ask how much they were heretofore represented in the two legislatures to which they sent delegates. they were so in name, but very little in essence, from the comparatively small number they could send to the legislatures. but the arguments went as much against the assumption at any future time as at present. that it would be some time taken up there could be no doubt. it ought therefore to be recollected, that if it would ever be proper, a period more unfavorable to the interests of the people might be selected than the present, and therefore the present moment ought to be accepted, and especially so, as he believed the people were desirous of it, and were satisfied with the features of the bill. from their contiguity to, and residence among the members of the general government, they knew, that though they might not be represented in the national body, their voice would be heard. but if it should be necessary, the constitution might be so altered as to give them a delegate to the general legislature when their numbers should become sufficient. upon the whole, he could see no measures which would more immediately promote the interests of the people of this district, and give stability to their minds, and to their concerns with each other, than the present bill and, therefore, he hoped the section would remain. mr. macon said, he could see no such immediate necessity for this law. a gentleman had told the committee it was necessary because the states did not pay regard to it. mr. m. supposed the same attention was paid to this district as usual, and the same as was paid to any other particular part. he believed their political and local rights were as perfectly secure without this bill as any other part of those states, and if the object of gentlemen was to make it better or worse, he should be opposed to it. before the least change from their former situation, some inconveniences ought to be mentioned under which they labored, and this had not been done, more than mere conjecture and surmises had engendered. most assuredly there ought to be some good ground for this assumption, because it was not merely a common act of the legislature, which could be repealed or amended as soon as passed. it was an act of a nature that could not be essentially altered without an alteration in the constitution, because if the assumption was once accepted, it could not be parted with. it would be so far from advantageous to the city of washington, mr. m. said, that it must essentially injure it. on one side of the water was alexandria, a populous town; on the other side was georgetown. would not these two give to the legislature a majority? and if so, a more palpable evil could not be put upon the city than by putting it in with more numerous towns whose interests would ever be opposed to the growth of the city. there would inevitably be an alexandria interest, a georgetown interest, and a city interest, and those struggling with each other. it was said to be inconvenient to be represented at a distance, from the want of an easy communication. how could this be? what was more easy than for letters and instructions to be sent by post? the communication was easy from all parts of the united states to congress, and could be equally so to any place where the post goes. there could be no doubt but the states would pay as much attention to the interests of this district, if it continued under their jurisdiction, as ever had been done, and more: by not suffering it to endure any injury which it could prevent, congress should immediately take the jurisdiction. the language and meaning of gentlemen could be well understood. gentlemen were called to support the measure with energy, while they had strength. no doubt this was the principal ground of their endeavors to push the measure, although the legislature had but just met here, and there had been scarce time to know what would be the proper regulations to adopt. but he wished to remind them, that although the law might be passed, the time would not be far off when his friends would be in the minority, and some considerable alterations might be made in it. mr. m. then proceeded to the details of the bill. he disliked the establishment of a government, the executive and judiciary of which were in the appointment of the president of the united states, the former for three years and the latter during good behavior: and these, both governor and judges of the superior and inferior courts, to be paid out of the treasury of the united states. could it be the wish of the gentleman, he asked, to establish in the very heart of the united states, and immediately under the eye of the government, such a principle as that these rulers should be independent and entirely above the control of the people? he declared that if he should be in congress again, and as long as he ever should be in the house, he should constantly make it his duty to exert himself for the repeal of so bad a principle, and leave the governor, the judges, and the legislature, immediately amenable to the people. another thing he should also be ever opposed to, was the manner of this house of representatives and senate being chosen, and the time of their continuance. why should they be elected here for two years, when in all the state legislatures, he believed they were chosen annually, except two, in one of which they were elected every six months, and in the other, every two years. a greater absurdity still was evinced in the time for which, and the manner how the senators were chosen--six years, and by electors. although in these things there was a similarity to the choice of the general government, he would ask what similarity there could be in the two governments? in the one there is a vast extent of country and a numerous population; in the other, a small population, a small tract of country, and an almost general knowledge by every one of every individual in it. he doubted whether the legislature of the union could at all delegate powers to this local government; but whether or not, he could see no kind of necessity during the present session to assume them. the government would go on as well as before, and he had no doubt the city would continue in that rapid state of prosperity gentlemen had witnessed since they arrived here. the committee rose without taking a question, and had leave to sit again. tuesday, february . a new member, to wit, john stewart, returned to serve as a member of this house for the state of pennsylvania, in the room of thomas hartley, deceased, appeared, produced his credentials, was qualified, and took his seat in the house. _district of columbia._ the house resolved itself into a committee of the whole on the bill for the government of the district of columbia, when the question was taken on the motion made yesterday, for striking out the first section, and negatived, ten members only rising for it. mr. gregg then proposed an amendment to the first section, the object of which was to make the election of representatives annual, instead of biennial as contemplated by the bill. this motion brought on a lengthy discussion, being supported by messrs. j. smith, claiborne, nicholas, gallatin, and macon; and opposed by messrs. craik, harper, bayard, h. lee, thomas, and dennis. on the question for agreeing to the motion, it was determined in the negative-- voting for it and against it. a motion was then made by mr. claiborne, so to amend the first section as to extend the privilege of voting to persons who are not freeholders; that privilege being confined by the bill to freeholders exclusively. this motion brought on a short debate, in which messrs. kitchell, nicholson, smith, macon, tazewell, and nicholas supported the motion, and messrs. harper, craik, dennis, and gallatin, opposed it. on the question that the house do agree to the motion, it was determined in the negative, there being votes for, and against it. wednesday, february . _district of columbia._ the house resolved itself into a committee of the whole on the bill for the government of the district of columbia. a motion was made by mr. gallatin to amend the first section of the bill, so as to extend the privilege of voting for representatives to persons other than freeholders, who are possessed of property in the district to the value of eighty dollars. mr. harper proposed an amendment to the foregoing amendment, that a citizen, not being a freeholder, in order to qualify him as an elector, must be a housekeeper, and possessed of property of the value of one hundred dollars, to be ascertained by the record of the last assessment next preceding the period of offering his vote. mr. gallatin's amendment was withdrawn, and mr. harper's, which, though offered as an amendment, was a complete substitute for it, was adopted. mr. claiborne proposed as an amendment to this same section, to reduce the term of a senator continuing in office from six to three years. the motion was negatived. mr. tazewell moved to strike out the senate altogether, on the ground that congress, having the revision of all laws that may be passed for the territory, and the power of rejecting such as they did not approve, would be a sufficient check on the representatives without a senate. this motion was negatived. mr. macon moved as an amendment, that the senators should be elected immediately by the people, and not by electors, as proposed by the bill. this motion was also lost. a motion was made by mr. nicholson, that the electors should not be permitted to choose themselves as senators. this motion was adopted. the committee rose, reported progress, and asked leave to sit again. friday, february . a new member, to wit, levi lincoln, returned to serve in this house as a member from massachusetts, in the room of dwight foster, elected a senator of the united states, appeared, produced his credentials, and took his seat in the house. _rules for election of president._ mr. rutledge, from the committee appointed, on the second instant, to prepare and report such rules as, in their opinion, are proper to be adopted by this house to be observed in the choice of a president of the united states, made a report; which was read. [see _post_, monday th, as amended.] monday, february . _ordered_, that the committee of claims, to whom was referred, on the thirtieth ultimo, the memorial of sundry clerks employed in the different departments, be discharged from the further consideration thereof, and that the same be referred to the committee of revisal and unfinished business. mr. rutledge, from the committee appointed on the part of this house, jointly, with the committee on the part of the senate, to ascertain and report a mode of examining the votes given for president and vice president of the united states; of notifying the persons elected of their election, and the time, place, and manner of administering the oath of office to the president, reported that the committee had taken the subject referred to them under consideration, but had come to no agreement thereupon. a message from the senate, informed the house that the senate would be ready to receive the house in the senate chamber, on wednesday next, at twelve o'clock, for the purpose of being present at the opening and counting of the votes for president of the united states; and that the senate have appointed a teller on their part, to make a list of the votes for president of the united states as they shall be declared. _rules for election of president._ the house proceeded to consider the report made on friday last, from the committee appointed to prepare and report rules proper to be observed in the choice of a president of the united states: whereupon, _ordered_, that the said report be committed to a committee of the whole house immediately. the house, accordingly, resolved itself into a committee of the whole on the said report; and, after some time spent therein, the chairman reported that the committee had had the said report under consideration, and directed him to report to the house their agreement to the same, with an amendment; which he delivered in at the clerk's table, where the same was read. the house then proceeded to consider the report: whereupon, the amendment reported from the committee of the whole house to the said report, was, on the question put thereupon, agreed to by the house. a motion was then made and seconded that the house do disagree with the committee of the whole house in their agreement to the fourth rule contained in the said report, in the words following, to wit: " th. after commencing the balloting for president, the house shall not adjourn until a choice is made:" and, the question being taken thereupon, it passed in the negative--yeas , nays . a motion was then made and seconded that the house do disagree with the committee of the whole house in their agreement to the fifth rule contained in the said report, in the words following, to wit: " th. the doors of the house shall be closed during the balloting, except against the officers of the house:" and, the question being taken thereupon, it passed in the negative--yeas , nays . _resolved_, that this house doth agree with the committee of the whole house in their agreement to the said report, as amended, in the words following, to wit: "that the following rules be observed in the choice by the house of representatives of a president of the united states, whose term is to commence on the fourth day of march next. " st. in the event of its appearing, upon the counting and ascertaining of the votes given for president and vice president, according to the mode prescribed by the constitution, that no person has a constitutional majority, and the same shall have been duly declared and entered on the journals of this house, the speaker, accompanied by the members of the house, shall return to their chamber. " d. seats shall be provided in this house for the president and members of the senate; and notification of the same shall be made to the senate. " d. the house, on their return from the senate chamber, it being ascertained that the constitutional number of states were present, shall immediately proceed to choose one of the persons from whom the choice is to be made for president; and in case upon the first ballot there shall not appear to be a majority of the states in favor of one of them, in such case the house shall continue to ballot for a president, without interruption by other business, until it shall appear that a president is duly chosen. " th. after commencing the balloting for president, the house shall not adjourn until a choice be made. " th. the doors of the house shall be closed during the balloting, except against the officers of the house. " th. in balloting, the following mode shall be observed, to wit: the representatives of the respective states shall be so seated that the delegation of each state shall be together. the representatives of each state shall, in the first instance, ballot among themselves, in order to ascertain the votes of the state; and it shall be allowed, where deemed necessary by the delegation, to name one or more persons of the representation, to be tellers of the ballots. after the vote of each state is ascertained, duplicates thereof shall be made; and in case the vote of the state be for one person, then the name of that person shall be written on each of the duplicates; and in case the ballots of the state be equally divided, then the word "_divided_" shall be written on each duplicate, and the said duplicates shall be deposited in manner hereafter prescribed, in boxes to be provided. that, for the conveniently taking the ballots of the several representatives of the respective states, there be sixteen ballot boxes provided; and that there be, additionally, two boxes provided for the purpose of receiving the votes of the states; that after the delegation of each state shall have ascertained the vote of the state, the sergeant-at-arms shall carry to the respective delegations the two ballot boxes, and the delegation of each state, in the presence and subject to the examination of all the members of the delegation, shall deposit a duplicate of the vote of the state in each ballot box; and where there is more than one representative of a state, the duplicates shall not both be deposited by the same person. when the votes of the states are all thus taken in, the sergeant-at-arms shall carry one of the general ballot boxes to one table, and the other to a second and separate table. sixteen members shall then be appointed as tellers of the ballots; one of whom shall be taken from each state, and be nominated by the delegation of the state from which he was taken. the said tellers shall be divided into two equal sets, according to such agreement as shall be made among themselves; and one of the said sets of tellers shall proceed to count the votes in one of the said boxes, and the other set the votes in the other box; and in the event of no appointment of teller by any delegation, the speaker shall in such case appoint. when the votes of the states are counted by the respective sets of tellers, the result shall be reported to the house; and if the reports agree, the same shall be accepted as the true votes of the states; but if the reports disagree, the states shall immediately proceed to a new ballot, in manner aforesaid. " th. if either of the persons voted for, shall have a majority of the votes of all the states, the speaker shall declare the same; and official notice thereof shall be immediately given to the president of the united states, and to the senate. " th. all questions which shall arise after the balloting commences, and which shall be decided by the house voting _per capita_ to be incidental to the power of choosing the president, and which shall require the decision of the house, shall be decided by states, and without debate; and in case of an equal division of the votes of states, the question shall be lost." tuesday, february . _credentials of members._ mr. dent, from the standing committee of elections, made a report, which he delivered in at the clerk's table, where the same was read, and is as follows: "the committee of elections having examined the credentials of several members claiming seats in this house, report: "that, by two certificates of the governor of massachusetts, under seal of the state, and dated the ninth day of january, one thousand eight hundred and one, it appears by one of the said certificates that ebenezer mattoon is duly elected to serve as a member of the house of representatives of the united states, in the room of samuel lyman, stated therein to have resigned; and by the other certificate, that levi lincoln is duly elected as aforesaid, in the place of dwight foster, appointed a senator of the united states. "it appears, also, by a letter under the signature of the governor of pennsylvania, dated the twenty-first day of january, one thousand eight hundred and one, and addressed to the speaker, accompanied by authenticated documents, that john stewart is duly chosen, in the place of thomas hartley, deceased. "the committee are of opinion that ebenezer mattoon is entitled to a seat, in the place of samuel lyman, resigned; levi lincoln, in the place of dwight foster, appointed a senator of the united states; and john stewart, in the place of thomas hartley, deceased." _election of president._ _resolved_, that this house will attend in the chamber of the senate on wednesday next at twelve o'clock, for the purpose of being present at the opening and counting of the votes for president and vice president of the united states; that mr. rutledge and mr. nicholas be appointed tellers, to act jointly with the teller appointed on the part of the senate, to make a list of the votes for president and vice president of the united states, as they shall be declared; that the result shall be delivered to the president of the senate, who shall announce the state of the vote, which shall be entered on the journals; and if it shall appear that a choice hath been made agreeably to the constitution, such entry on the journals shall be deemed a sufficient declaration thereof. _ordered_, that the clerk of this house do acquaint the senate therewith. wednesday, february . on motion, it was _resolved_, that all letters and packets to john adams, now president of the united states, after the expiration of his term of office, and during his life, may be transmitted by post, free of postage. _ordered_, that a bill or bills be brought in pursuant to the said resolution; and that mr. otis, mr. thatcher, and mr. shepard, be appointed a committee to prepare and bring in the same. _election of president._ on this day, being the day by law appointed for counting the votes of the electors of president and vice president, there were present the following representatives, respectively, that is to say: _from new hampshire._--abiel foster, jonathan freeman, james sheafe, and samuel tenney. _from massachusetts._--theodore sedgwick (speaker), john read, joseph p. varnum, william shepard, peleg wadsworth, silas lee, lemuel williams, george thatcher, bailey bartlett, phanuel bishop, harrison g. otis, nathan read, levi lincoln, and ebenezer mattoon. _from connecticut._--john davenport, roger griswold, samuel w. dana, chauncey goodrich, elizur goodrich, william edmond, and john c. smith. _from vermont._--matthew lyon, and lewis r. morris. _from rhode island._--christopher g. champlin, and john brown. _from new york._--john smith, philip van cortlandt, jonas platt, henry glenn, john thompson, theodorus bailey, john bird, william cooper, lucas elmendorph, and edward livingston. _from new jersey._--james linn, aaron kitchell, john condit, james h. imlay, and franklin davenport. _from pennsylvania._--robert brown, albert gallatin, andrew gregg, john a. hanna, joseph heister, john wilkes kittera, michael leib, peter muhlenberg, john smilie, john stewart, richard thomas, robert waln, and henry woods. _from delaware._--james a. bayard. _from maryland._--john chew thomas, samuel smith, gabriel christie, william craik, joseph h. nicholson, george dent, george baer, and john dennis. _from virginia._--samuel j. cabell, matthew clay, john dawson, joseph eggleston, thomas evans, samuel goode, edwin gray, david holmes, george jackson, henry lee, anthony new, john nicholas, robert page, josiah parker, leven powell, john randolph, abram trigg, john trigg, and lyttleton w. tazewell. _from north carolina._--willis alston, joseph dickson, william barry grove, archibald henderson, william h. hill, nathaniel macon, richard dobbs spaight, richard stanford, david stone, and robert williams. _from south carolina._--robert goodloe harper, benjamin huger, abraham nott, thomas pinckney, and john rutledge. _from georgia._--benjamin taliaferro. _from kentucky._--john fowler, and thomas t. davis. _from tennessee._--william charles cole claiborne. mr. speaker, attended by the house, then went into the senate chamber, and took seats therein, when both houses being assembled, mr. rutledge and mr. nicholas, the tellers on the part of this house, together with mr. wells, the teller on the part of the senate, took seats at a table provided for them, in the front of the president of the senate. the president of the senate, in the presence of both houses, proceeded to open the certificates of the electors of the several states, beginning with the state of new hampshire; and as the votes were read, the tellers on the part of each house, counted and took lists of the same, which being compared, were delivered to the president of the senate, and are as follows: ---------------+---------+---------+---------+----------+---------+ states. |thomas | aaron | john |charles c.| john | |jefferson| burr | adams |pinckney | jay. | ---------------+---------+---------+---------+----------+---------+ new hampshire | - | - | | | | massachusetts | - | - | | | | rhode island | - | - | | | | connecticut | - | - | | | | vermont | - | - | | | | new york | | | | | | new jersey | - | - | | | | pennsylvania | | | | | | delaware | - | - | | | | maryland | | | | | | virginia | | | | | | kentucky | | | | | | north carolina | | | | | | tennessee | | | | | | south carolina | | | | | | georgia | | | | | | | -- | -- | -- | -- | -- | | | | | | | ---------------+---------+---------+---------+----------+---------+ _recapitulation of the votes of the electors._ thomas jefferson, aaron burr, john adams, charles cotesworth pinckney, john jay, the president of the senate, in pursuance of the duty enjoined upon him, announced the state of the votes to both houses, and declared that thomas jefferson of virginia, and aaron burr of new york, having the greatest number, and a majority of the votes of all the electors appointed, and being equal, it remained for the house of representatives to determine the choice. the two houses then separated; and the house of representatives being returned to their chamber, proceeded, in the manner prescribed by the constitution, to the choice of a president of the united states, and the following members were appointed tellers of the respective states, to examine ballots of each state, pursuant to the sixth rule adopted by the house on the ninth instant, to wit: for the state of new hampshire, abiel foster; massachusetts, harrison g. otis; rhode island, christopher g. champlin; connecticut, roger griswold; vermont, lewis r. morris; new york, theodorus bailey; new jersey, james linn; pennsylvania, albert gallatin; delaware, james a. bayard; maryland, george dent; virginia, lyttleton w. tazewell; north carolina, nathaniel macon; south carolina, thomas pinckney; georgia, benjamin taliaferro; kentucky, john fowler; tennessee, william charles cole claiborne. the members of the respective states then proceeded to ballot, in the manner prescribed by the rule aforesaid, and the tellers appointed by the states, respectively, having put duplicates of their votes into the general ballot boxes prepared for the purpose, the votes contained therein were taken out and counted, and the result being reported to the speaker, he declared to the house that the votes of eight states had been given for thomas jefferson, of virginia; the votes of six states for aaron burr, of new york; and that the votes of two states were divided. the constitution of the united states requiring that the votes of nine states should be necessary to constitute a choice of president of the united states, a motion was made and seconded, that the ballot for the president be repeated in one hour; and, the question being taken by states, it passed in the negative. the states then proceeded, in the manner aforesaid, to a second ballot; and, upon examination of the ballot boxes, it appeared that the votes of eight states had been given for thomas jefferson, of virginia; and the votes of six states for aaron burr, of new york; and that the votes of two states were divided. the states then proceeded in like manner to a third ballot; and, upon examination thereof, the result was declared to be the same. the states then proceeded in like manner to a fourth ballot; and, upon examination thereof, the result was declared to be the same. the states then proceeded in like manner to a fifth ballot; and, upon examination thereof, the result was declared to be the same. the states then proceeded in like manner to a sixth ballot; and, upon examination thereof, the result was declared to be the same. the states then proceeded in like manner to a seventh ballot; and, upon examination thereof, the result was declared to be the same. a motion was then made and seconded, that the states proceed again to ballot in one hour; and, the question being taken thereupon, it was resolved in the affirmative--the votes of the states being ayes , noes . the time agreed upon by the last-mentioned vote being expired, the states proceeded, in manner aforesaid, to the eighth ballot; and, upon examination thereof, the result was declared to be the same, to wit: the votes of eight states for thomas jefferson, of virginia; the votes of six states for aaron burr, of new york; and the votes of two states were divided. the states then proceeded to a ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, and fifteenth ballots; and, upon examination of the ballots, respectively, the result was declared to be the same. a motion was then made and seconded, that the states proceed again to ballot at ten o'clock; and the question being taken thereupon, it passed in the negative--the votes of the states being ayes , noes . _ordered_, that the next ballot be repeated at nine o'clock, and not before. the time agreed upon by the last-mentioned vote being expired, the states proceeded in manner aforesaid to the sixteenth ballot; and, upon examination thereof, the result was declared to be the same. _ordered_, that the ballot be repeated in one hour. the time agreed upon by the last-mentioned vote being expired, the states proceeded in manner aforesaid to the seventeenth ballot; and, upon examination thereof, the result was declared to be the same. _ordered_, that the ballot be repeated at eleven o'clock. the time agreed upon by the last-mentioned vote being expired, the states proceeded in manner aforesaid to the eighteenth ballot; and upon examination thereof, the result was declared to be the same. a motion was then made and seconded, that the ballot be repeated to-morrow at eleven o'clock and not before. the question being taken thereupon, it passed in the negative. _ordered_, that the ballot be repeated at twelve o'clock. the time agreed upon by the last-mentioned vote being expired, the states proceeded in manner aforesaid to the nineteenth ballot; and, upon examination thereof, the result was declared to be the same. _ordered_, that the ballot be repeated in one hour. february , o'clock, a.m. the time agreed upon by the last-mentioned vote being expired, the states proceeded in manner aforesaid to the twentieth ballot; and, upon the examination thereof, the result was declared to be the same. _ordered_, that the ballot be repeated at two o'clock. the time agreed upon by the last-mentioned vote being expired, the states proceeded in manner aforesaid to the twenty-first ballot; and, upon examination thereof, the result was declared to be the same. _ordered_, that the ballot be repeated at half after two o'clock. the time agreed upon by the last-mentioned vote being expired, the states proceeded in manner aforesaid to the twenty-second ballot; and, upon examination thereof, the result was declared to be the same. _ordered_, that the ballot be repeated at four o'clock. the time agreed upon by the last-mentioned vote being expired, the states proceeded in manner aforesaid to the twenty-third ballot; and, upon examination thereof, the result was declared to be the same. _ordered_, that the ballot be repeated at five o'clock. the time agreed upon by the last-mentioned vote being expired, the states proceeded in manner aforesaid to the twenty-fourth ballot; and, upon examination thereof, the result was declared to be the same. _ordered_, that the ballot be repeated at six o'clock. the time agreed upon by the last-mentioned vote being expired, the states proceeded in manner aforesaid to the twenty-fifth ballot; and, upon examination thereof, the result was declared to be the same. _ordered_, that the ballot be repeated at seven o'clock. the time agreed upon by the last-mentioned vote being expired, the states proceeded in manner aforesaid to the twenty-sixth ballot; and, upon examination thereof, the result was declared to be the same. _ordered_, that the ballot be repeated at eight o'clock. the time agreed upon by the last-mentioned vote being expired, the states proceeded in manner aforesaid to the twenty-seventh ballot; and, upon examination thereof, the result was declared to be the same. _ordered_, that the ballot be repeated at twelve o'clock, and not before. the time agreed upon by the last-mentioned vote being expired, the states proceeded in manner aforesaid to the twenty-eighth ballot; and, upon examination thereof, the result was declared to be the same. _ordered_, that the ballot be repeated to-morrow at eleven o'clock, and not before. february . the time agreed upon by the last-mentioned vote being expired, the states proceeded in manner aforesaid to the twenty-ninth ballot; and, upon examination thereof, the result was declared to be the same. _ordered_, that the ballot be repeated to-morrow at twelve o'clock, and not before. february . the time agreed upon by the last-mentioned vote being expired, the states proceeded in manner aforesaid to the thirtieth ballot; and, upon examination thereof, the result was declared to be the same. _ordered_, that the ballot be repeated at one o'clock. the time agreed upon by the last-mentioned vote being expired, the states proceeded in manner aforesaid to the thirty-first ballot; and, upon examination thereof, the result was declared to be the same. _ordered_, that the ballot be repeated at two o'clock. the time agreed upon by the last-mentioned vote being expired, the states proceeded in manner aforesaid to the thirty-second ballot; and, upon examination thereof, the result was declared to be the same. _ordered_, that the ballot be repeated at three o'clock. the time agreed upon by the last-mentioned vote being expired, the states proceeded in manner aforesaid to the thirty-third ballot; and, upon examination thereof, the result was declared to be the same. _ordered_, that the ballot be repeated on monday next at twelve o'clock, and not before. february . the time agreed upon by the last-mentioned vote being expired, the states proceeded in manner aforesaid to the thirty-fourth ballot; and, upon examination thereof, the result was declared to be the same. _ordered_, that the ballot be repeated to-morrow at twelve o'clock, and not before. february . the time agreed upon by the last-mentioned vote being expired, the states proceeded in manner aforesaid to the thirty-fifth ballot; and, upon examination thereof, the result was declared to be the same. _ordered_, that the ballot be repeated at one o'clock. the time agreed upon by the last-mentioned vote being expired, the states proceeded in manner aforesaid to the thirty-sixth ballot; and, upon examination thereof, and the result being reported by the tellers to the speaker, the speaker declared to the house that the votes of ten states had been given for thomas jefferson, of virginia; the votes of four states for aaron burr, of new york; and that the votes of two states had been given in blank; and, that, consequently, thomas jefferson, of virginia, had been, agreeably to the constitution, elected president of the united states, for the term of four years, commencing on the fourth day of march next.[ ] _ordered_, that mr. pinckney, mr. tazewell, and mr. bayard, be appointed a committee to wait on the president of the united states, and notify him that thomas jefferson is elected president of the united states, for the term commencing on the fourth day of march next. _ordered_, that a message be sent to the senate to inform them that thomas jefferson has been duly elected president of the united states, for the term of four years commencing on the fourth day of march next; and that the clerk of this house do go with the said message. thursday, february . _state balances._ mr. hill, from the committee appointed to inquire into the expediency of extinguishing the claims of the united states for certain balances which, by the commissioners appointed to settle the accounts between the united states and the several states, were reported to be due from several of the states to the united states, now made a report, accompanied by a bill to extinguish the claims of the united states, for certain balances reported to be due from several of the states to the united states; which was read, and the consideration of the said report and bill postponed until the third day of march next. the report is as follows: the committee appointed to inquire into the expediency of extinguishing the claims of the united states for certain balances which, by the commissioners appointed to settle the accounts between the united states and the several states, were reported to be due from several of the states to the united states, report-- that the commissioners aforesaid, on the liquidation of the accounts, reported that there were due from several of the states certain balances, that is to say: new york $ , , pennsylvania , delaware , maryland , virginia , north carolina , that congress by an act passed the th february, , engaged that any state so reported against might discharge itself from the claim, by an engagement in the form of a legislative act, to be passed before the first of april, , to pay at the treasury of the united states, within five years, the amount of the sum assumed by the united states in the debt of such state; or by expending moneys to the like amount within the time aforesaid in the erection of fortifications. and the said act of congress provides further, that any payment or expenditure aforesaid shall be credited at the treasury to the amount of stock which said payment or expenditure is equal to the purchase of at the market prices of stock. that the state of new york passed, within the time limited, the legislative act required by the act of congress aforesaid, and has already received credit at the treasury for the sum of $ , , for having previously expended in fortifications the sum of $ , . that no other state has acceded to the terms offered by the said act of congress. the committee further report, that, by the immediate operation of the said act of congress, and of the legislature of the state of new york, that state was exonerated and released from a very considerable part of the balance reported, to wit, the sum of $ , , the balance reported against the state being to that amount more than the sum subscribed on the assumption of the united states in the debt of that state, the sum so subscribed amounts to $ , , ; that the sum of $ , , exceeds the whole amount of the balance reported to be due from any one of the states, and the aggregate amount of the whole of the balances, with the exception of the balance reported to be due from the state of delaware. the committee, without entering into a discussion of the principles whereon the settlement of the accounts by the commissioners was founded, remark, that as none of the states but the state of new york have manifested any disposition to pay the balances reported against them, whether the terms offered by the said act of congress operate favorably or not, and none of them have assented to the justice or equity of the claim of the united states, and no means exist of exacting payment, it seems unwise to keep alive a claim which cannot be enforced, and may have the effect of producing irritation and exciting discontent; and as the act of congress has already released the state of new york from so large an amount and enabled that state, with ease and advantage, to discharge the residue of the balance reported to be due from that state, the committee are of opinion that a release of the balances due from the other states is expedient, and for this purpose report a bill, which is submitted. saturday, february . _president elect._ mr. pinckney, from the committee instructed on the eighteenth instant to wait on the president elect, to notify him of his election, reported that the committee had performed that service, and addressed the president elect in the following words, to wit: "the committee beg leave to express their wishes for the prosperity of your administration; and their sincere desire that it may promote your own happiness and the welfare of our country." to which the president elect was pleased to make the following reply: "i receive, gentlemen, with profound thankfulness, this testimony of confidence from the great representative council of our nation: it fills up the measure of that grateful satisfaction which had already been derived from the suffrages of my fellow-citizens themselves, designating me as one of those to whom they were willing to commit this charge, the most important of all others to them. in deciding between the candidates, whom their equal vote presented to your choice, i am sensible that age has been respected rather than more active and useful qualifications. "i know the difficulties of the station to which i am called, and feel, and acknowledge, my incompetence to them: but, whatsoever of understanding, whatsoever of diligence, whatsoever of justice, or of affectionate concern for the happiness of man, it has pleased providence to place within the compass of my faculties, shall be called forth for the discharge of the duties confided to me, and for procuring to my fellow-citizens all the benefits which our constitution has placed under the guardianship of the general government. "guided by the wisdom and patriotism of those to whom it belongs to express the legislative will of the nation, i will give to that will a faithful execution. "i pray you, gentlemen, to convey to the honorable body from which you are deputed, the homage of my humble acknowledgments, and the sentiments of zeal and fidelity by which i shall endeavor to merit these proofs of confidence from the nation, and its representatives; and accept, yourselves, my particular thanks for the obliging terms in which you have been pleased to communicate their will. "thomas jefferson. "february , ." _sedition act._ the house then went into a committee of the whole, on the bill to repeal part of an act, entitled "an act in addition to the act, entitled 'an act for the punishment of certain crimes against the united states,'" and to continue in force the residue of the same. on the question that the said bill be engrossed for a third reading-- mr. dawson said, when the law which this bill was intended to continue was first passed, i gave to it my dissent; i did it from a conviction on my mind that it does violate that constitution which i have sworn to support, and from a persuasion that the then state of things did not require it: that while it begat an unjust suspicion of the american character, it was a stain on our code of legislation. if these were my impressions at that time, some reflection since, aided by the productions of men whose names and talents will be long remembered, and a knowledge of the sentiments of the state from which i come, and of the people whom i represent, have confirmed those impressions, and have resolved me to vote against that bill in every shape and in every stage, and i hope that it will not be suffered to be engrossed. sir, it is well remembered by me, nor can it be forgotten by any gentleman, on what grounds this law was advocated and first passed; it was then supported and pressed upon us as a necessary link in a chain of measures which a majority of the two houses of congress thought proper to adopt to meet a particular crisis--to guard against the supposed intrigues of a foreign nation--to give respectability and energy to our executive--to prevent its falling into disrepute with the people, and to punish factious individuals. the history of the last two years has, i am persuaded, convinced gentlemen how mistaken were their opinions of the american character. with me they must now believe that whatever difference there may be in our political principles, when the safety, freedom, or honor of our country is threatened by a foreign nation, like a band of brothers we will rally round our government, and support it by means which the constitution of our country authorizes, and which the energy of the case may require. how far this law has given respectability or energy to our administration i will not pretend to say; the events of the present day are an ample comment on that point; but, after the experience which we have had, since some of the objects for which it was formed do not exist, and others have not been answered, i did hope that no attempt would have been made to continue it, and that it would have been suffered to expire like its twin-brother, the alien law. in this hope, however, i have been disappointed; gentlemen have come forward and supported it with a zeal, not uncommon to them on other occasions, and unexpected in the present, when we were taught to believe that they were at least indifferent about it, and new reasons have been assigned for its continuance--formerly it was thought necessary to protect the administration against the people; and now, sir, it is wanted to guard individuals against an administration which may be weak or wicked. experience has, i am persuaded, convinced gentlemen that it has not answered the first purpose, and i hope they will find it unnecessary for the latter. into whatever hands the administration of our country may fall, its acts ought to be examined with that freedom which becomes freemen, and with that decency which becomes gentlemen; so long as they are guided by justice and wisdom, they will be supported with decision and firmness by the friends to the administration; whenever they shall descend from these great principles, the voice of the people will again sweep the actors from the political theatre. this law, sir, has been advocated, because it is said to ameliorate the common law of england, and on this argument much dependence has been placed; however, admitting it to be true, on a moment's reflection it will not be found to merit any consideration; for, sir, let it be remembered that the opponents to this law are also the opponents to the adoption of that law as the law of the united states, and do not think it authorized by the constitution; this is the doctrine which they have uniformly contended for, and which, pardon me if i say, has been established as fully as one point possibly can be; it is not therefore probable, nay, i think it impossible, that they ever should appeal to it to shield them. no, sir, supported by the justice and policy of their measures, i trust they will need the aid of neither the alien, sedition, nor common law. sir, it will be unnecessary for me to touch on the unconstitutionality of this law; it has been proven over and over again in this house, and in every part of the continent, and if what has been said and written has not convinced gentlemen, no effect would be produced by any thing which i could say. but, sir, as some of the objects for which the law was first enacted have passed by, and others have not been answered--as the friends to the approaching administration do not wish it for their protection, and the opponents will not need it for theirs, i do hope that those gentlemen who doubt about the constitutionality will vote with us, and that the bill will not be permitted to be engrossed. the question was then taken, and the engrossment refused, to , as follows: yeas.--george baer, bailey bartlett, james a. bayard, john brown, christopher g. champlin, william cooper, william craik, samuel w. dana, john davenport, franklin davenport, john dennis, joseph dickson, william edmond, thomas evans, abiel foster, jonathan freeman, henry glenn, chauncey goodrich, elizur goodrich, roger griswold, william barry grove, robert goodloe harper, archibald henderson, william h. hill, james h. imlay, john wilkes kittera, henry lee, silas lee, ebenezer mattoon, lewis r. morris, harrison g. otis, robert page, thomas pinckney, jonas platt, leven powell, john read, nathan read, john rutledge, william shepard, john c. smith, james sheafe, samuel tenney, geo. thatcher, john chew thomas, richard thomas, peleg wadsworth, robert waln, lemuel williams, and henry woods. nays.--willis alston, theodorus bailey, phanuel bishop, robert brown, samuel j. cabell, gabriel christie, matthew clay, william c. c. claiborne, john condit, thomas t. davis, john dawson, george dent, joseph eggleston, lucas elmendorph, john fowler, albert gallatin, samuel goode, edwin gray, andrew gregg, john a. hanna, joseph heister, david holmes, benjamin huger, george jackson, aaron kitchell, michael leib, levi lincoln, matthew lyon, james linn, edward livingston, nathaniel macon, peter muhlenberg, anthony new, john nicholas, joseph h. nicholson, josiah parker, john randolph, john smilie, john smith, samuel smith, richard dobbs spaight, richard stanford, david stone, thomas sumter, john stewart, benjamin taliaferro, john thompson, abram trigg, john trigg, lyttleton w. tazewell, philip van cortlandt, joseph b. varnum, and robert williams. wednesday, february . the house then resolved itself into a committee of the whole on the bill providing for a naval peace establishment, and for other purposes; and, after some time spent therein, the committee rose and reported several amendments thereto; which were read, but, an adjournment being called for, the house adjourned. friday, february . _uniform system of bankruptcy._ the house proceeded to consider the amendments reported yesterday, from the committee of the whole house, to the bill to amend and continue in force the act, entitled "an act to establish a uniform system of bankruptcy throughout the united states;" whereupon the amendments reported from the committee of the whole house were, on the question severally put thereon, agreed to by the house. the said bill was then further amended at the clerk's table; and, on the question that the same be engrossed and read the third time, it was resolved in the affirmative--yeas , nays , as follows: yeas.--george baer, bailey bartlett, james a. bayard, john bird, john brown, christopher g. champlin, william cooper, william craik, samuel w. dana, john davenport, franklin davenport, john dennis, george dent, joseph dickson, william edmond, thomas evans, abiel foster, jonathan freeman, henry glenn, chauncey goodrich, elizur goodrich, roger griswold, robert goodloe harper, archibald henderson, william h. hill, benjamin huger, james h. imlay, john wilkes kittera, silas lee, edward livingston, lewis r. morris, harrison g. otis, josiah parker, thomas pinckney, jonas platt, leven powell, john read, nathan read, william shepard, samuel smith, john c. smith, james sheafe, samuel tenney, george thatcher, john chew thomas, peleg wadsworth, robert waln, lemuel williams, and henry woods. nays.--willis alston, theodorus bailey, phanuel bishop, robert brown, samuel j. cabell, matthew clay, william charles cole claiborne, john condit, john dawson, joseph eggleston, john fowler, albert gallatin, edwin gray, andrew gregg, john a. hanna, joseph heister, david holmes, george jackson, aaron kitchell, michael leib, levi lincoln, matthew lyon, james linn, nathaniel macon, peter muhlenberg, anthony new, john nicholas, joseph h. nicholson, john randolph, john smilie, john smith, richard dobbs spaight, richard stanford, david stone, thomas sumter, john stewart, benjamin taliaferro, john thompson, abram trigg, john trigg, lyttleton w. tazewell, and joseph b. varnum. _ordered_, that the said bill, with the amendments, be engrossed and read the third time to-morrow. _naval peace establishment._ an engrossed bill providing for a naval peace establishment, and for other purposes, was read the third time; and, on the question that the same do pass, it was resolved in the affirmative--yeas , nays . saturday, february . an engrossed bill to augment the salaries of the district judges in the districts of massachusetts, new york, delaware, and maryland, respectively, was read the third time, and passed. mr. gregg, from the committee to whom was this day referred the memorial of thomas claxton and others, made a report; which he delivered in at the clerk's table, where the same was twice read and considered; whereupon, _resolved_, that thomas claxton, james mathers, and thomas dunn, be permitted to occupy, free of rent, until otherwise directed by congress, the houses now in their respective possession, the property of the united states, in the public square in the city of washington, on which the capitol stands; together with a small piece of ground contiguous to each, for a garden, to be enclosed in such manner as not to interfere with any of the public streets or avenues running through the said square. _ordered_, that the clerk of this house do carry the said resolution to the senate, and desire their concurrence. mr. griswold, from the committee appointed, presented a bill further to amend the act, entitled "an act for establishing the temporary and permanent seat of the government of the united states;" which was read twice, and committed to a committee of the whole house on monday next. the house resolved itself into a committee of the whole on the bill concerning the mint; and, after some time spent therein, the committee rose and reported one amendment thereto; which was twice read, and agreed to by the house. _ordered_, that the said bill, with the amendment, be engrossed, and read the third time to-day. _remonstrance of georgia._ mr. dana, from the committee to whom was referred, on the seventh ultimo, the memorial and remonstrance of the legislature of the state of georgia, made a report; which was read, and ordered to be committed to a committee of the whole house on monday next. the report is as follows: the committee to whom was referred the address and remonstrance of the legislature of the state of georgia, submit the following report: the remonstrance complains of two acts of congress respecting the mississippi territory; one passed in april, one thousand seven hundred and ninety-eight, the other in may, one thousand eight hundred; and prays for their repeal. the tract of country called the mississippi territory, is bounded on the west by the river mississippi, on the east by the river appalachicola, or chatahoochee, on the south by the southern boundary of the united states, and on the north by a line drawn from the confluence of the river yazoo with the mississippi, due east to the before mentioned river chatahoochee. for a view of the claim of the united states to the territory in question, the committee, in the present instance, deem it sufficient to refer to a report of the attorney general, made to the senate, at the first session of the fourth congress, and to the report of a committee of the house of representatives, made at the first session of the sixth congress. the last-mentioned report also contains a summary statement of a variety of individual claims to land within the territory. the claim of georgia is particularly stated in the remonstrance referred to your committee. the two acts of congress, of which the remonstrance complains, have provided for an adjustment of those claims, through the agency of commissioners; and also for the establishment of a government over the mississippi territory, similar to that established by the ordinance of congress, of july one thousand seven hundred and eighty-seven, for the territory north-west of the river ohio; saving and reserving to the state of georgia all her right or claim to the said territory. commissioners have accordingly been appointed on the part of the united states, and also on the part of georgia, for negotiating an adjustment of their respective claims. no report has yet been laid before congress from the commissioners of the united states; but the business of their commission is understood to be yet pending. considering this state of things, the committee deem it proper for them to abstain from any particular discussion of the several claims to the mississippi territory, while a hope is cherished that an amicable adjustment may be ultimately effected. nor do they think it expedient to adopt any measure which may be prejudicial to an object so desirable. the committee therefore submit the following resolution: "_resolved_, that it would not be proper at this time for the house to take any further order on the address and remonstrance of the legislature of the state of georgia." monday, march . the speaker laid before the house a letter from the president of the united states elect, which was read, and is as follows: washington, _march , _. sir: i beg leave through you to inform the honorable the house of representatives of the united states, that i shall take the oath which the constitution prescribes to the president of the united states before he enters on the execution of his office, on wednesday, the fourth instant, at twelve o'clock, in the senate chamber. i have the honor to be, with the greatest respect, sir, your most obedient, and most humble servant, thomas jefferson. hon. theodore sedgwick, _speaker of the house of representatives_. _ordered_, that said letter do lie on the table. _mausoleum to washington._ the house proceeded to consider the amendments proposed by the senate to the bill entitled "an act to erect a mausoleum for george washington:" whereupon, a motion was made and seconded to amend the amendment of the senate to the first section of the said bill, by striking out, from the tenth line thereof, the word "fifty," for the purpose of inserting, in lieu thereof, the word "one hundred;" and the question being taken thereupon, it passed in the negative--yeas , nays . the said amendments of the senate were then further amended at the clerk's table, and, on the question that the house do agree to the said amendments as amended, it was resolved in the affirmative--yeas , nays , as follows: yeas.--theodorus bailey, bailey bartlett, john bird, phanuel bishop, robert brown, samuel j. cabell, matthew clay, william c. c. claiborne, samuel w. dana, john davenport, john dawson, joseph eggleston, john fowler, albert gallatin, chauncey goodrich, andrew gregg, william barry grove, john a. hanna, joseph heister, david holmes, john wilkes kittera, michael leib, levi lincoln, matthew lyon, james linn, edward livingston, nathaniel macon, peter muhlenberg, anthony new, john nicholas, john read, nathan read, wm. shepard, john smilie, john smith, samuel smith, richard dobbs spaight, david stone, benjamin taliaferro, samuel tenney, john chew thomas, john thompson, abram trigg, john trigg, joseph b. varnum, and peleg wadsworth. nays.--james a. bayard, john brown, christopher g. champlin, gabriel christie, william craik, franklin davenport, john dennis, joseph dickson, william edmond, thomas evans, abiel foster, henry glenn, roger griswold, robert goodloe harper, archibald henderson, benjamin huger, james h. imlay, george jackson, henry lee, silas lee, ebenezer mattoon, robert page, thomas pinckney, jonas platt, john randolph, john c. smith, richard stanford, thomas sumter, james sheafe, john stewart, george thatcher, lemuel williams, and henry woods. tuesday, o'clock p. m., march . _thanks to the speaker._ mr. page moved the following resolution: _resolved_, that the thanks of the house be presented to theodore sedgwick for his conduct while in the chair of this house. the question was taken whether this motion was in order. it was decided to be in order. the yeas and nays were ordered. mr. christie said he should not point out the improprieties in the conduct of the speaker while in the chair, otherwise than by his vote, though he possessed the right to call up to the recollection of the house the many inconsistencies his presidency had been marked with. in doing that, mr. speaker, i shall behave better to you than you have ever done to me. the cry of "order!" "order!" prevented any more being said, and mr. c. sat down. the yeas and nays were then taken, and resulted--yeas , nays . whereupon mr. speaker made his acknowledgments to the house in the manner following: accept, gentlemen, my thanks, i pray you, for the respectful terms in which you have been pleased to express the opinion you entertain of the manner in which i have discharged the arduous duties of the station to which i was raised by your kind regard. although i am conscious of having intended faithfully to execute the trust confided to this chair, yet i am sensible that, whatever success may have attended my endeavors, is justly attributable to the candid, honorable, and firm support which you have constantly afforded. i cannot lay the least claim to merit for any thing that i have done; because the generous confidence which you had reposed in me, demanded that i should devote all my feeble talents to your service. being now about to retire from this house, and, as i hope, from the public councils for ever, permit me, gentlemen, to bid you, collectively and individually, an affectionate farewell. it is true that i have long wished to indulge repose in the shade of private life; but the moment of separation inflicts an anguish inexpressible by language. it is a separation from men of dignity of character, of honorable sentiments, and of disinterested patriotism; an association with whom has been my pride and solace amidst all the fatigue and vexation of public life. of the friendship of such men, long, uninterrupted and cordial as it has been, i shall always cherish a grateful remembrance. may you receive the reward most grateful to generous spirits, the reward of witnessing, as the effects of your labors, the increasing prosperity, and happiness, and glory, of your country. as the last words which i shall utter, as a public man, allow me to declare, that those with whom i have had the honor, here, to act and think, whose confidence i have enjoyed, whose bosoms have been opened to my inspection, in my cool and reflected opinion, deserve all of esteem, affection, and gratitude, which their countrymen can bestow. on this occasion i deem myself authorized, from the present circumstances, to make this declaration; and i do it in the most solemn manner, in the presence of the assembled representatives of america; and not only so, but in the awful presence of that heart-searching being to whom i feel myself responsible for all my conduct. may the almighty keep you in his holy protection. farewell. a message from the senate informed the house that the senate have appointed a committee on their part, jointly, with such committee as may be appointed on the part of this house, to wait on the president of the united states, and to inform him that congress is ready to adjourn without day, unless he may have any further communications to make to them. the house proceeded to consider the foregoing resolution of the senate, agreed to the same, and appointed mr. pinckney and mr. grove the committee on the part of this house. mr. pinckney, from the joint committee of the two houses, appointed to notify the president of the united states of the proposed recess of congress, reported that the committee had, according to order, performed that service, and that the president signified to them that he had no further communication to make, but the expression of his wishes for the health and happiness of the members, and a pleasant journey on their return to their homes and families. _ordered_, that a message be sent to the senate to inform them that this house, having completed the business before them, are now ready to adjourn without day; and that the clerk of this house do go with the said message. the clerk accordingly went with the said message; and being returned, mr. speaker adjourned the house, _sine die_.[ ] seventh congress.--first session. begun at the city of washington, december , . president of the united states,--thomas jefferson. list of members senators. _new hampshire._--simeon olcott, james sheafe. _vermont._--s. r. bradley, nathaniel chipman. _massachusetts._--jonathan mason. _rhode island._--christopher ellery, theodore foster. _connecticut._--james hillhouse, uriah tracy. _new york._--john armstrong, g. morris. _new jersey._--aaron ogden, jonathan dayton. _pennsylvania._--george logan, peter muhlenberg. _delaware._--william h. willes, samuel white. _maryland._--john e. howard, robert wright. _virginia._--stevens t. mason, wilson c. nicholas. _north carolina._--jesse franklin, david stone. _south carolina._--john c. calhoun, jacob read. _georgia._--a. baldwin, james jackson. _tennessee._--william cocke, joseph anderson. _kentucky._--john breckenridge, john browne. representatives. _new hampshire._--abiel foster, joseph pearce, george b. upham. _vermont._--lewis r. morris, israel smith. _massachusetts._--john bacon, phanuel bishop, manasseh cutler, richard cutts, william eustis, seth hastings, silas lee, eben mattoon, nathan read, william shepard, josiah smith, joseph b. varnum, p. wadsworth, lemuel williams. _rhode island._--joseph stanton, thomas tillinghast. _connecticut._--samuel w. dana, john davenport, calvin goddard, roger griswold, elias perkins, john c. smith, benjamin talmadge. _new york._--theodore bailey, lucas elmendorph, e. livingston, samuel l. mitchill, thomas morris, john smith, david thomas, philip van cortlandt, john p. van ness, killian k. van rensselaer, benjamin walker. _new jersey._--john condit, ebenezer elmer, william helms, james mott, henry southard. _pennsylvania._--thomas boude, robert brown, andrew gregg, john a. hanna, joseph heister, joseph hemphill, william hoge, william jones, michael leib, john smilie, john stewart, isaac van horne, henry woods. _delaware._--james a. bayard. _maryland._--john archer, john campbell, john dennis, daniel heister, joseph h. nicholson, thomas plater, samuel smith, richard sprigg. _virginia._--richard brent, samuel j. cabell, thomas claiborne, john clopton, john dawson, william b. giles, edwin gray, david holmes, john geo. jackson, anthony new, thomas newton, john randolph, john smith, john stratton, john taliaferro, philip e. thompson, abram trigg, john trigg. _north carolina._--willis alston, william b. grove, archibald henderson, william h. hill, james holland, charles johnston, nathaniel macon, richard stanford, john stanley, robert williams. _south carolina._--william butler, benj. huger, thomas lowndes, thomas moore, john rutledge, thomas sumter. _georgia._--john milledge, benjamin taliaferro. _mississippi._--narsworthy hunter. _tennessee._--william dickson. _kentucky._--thomas t. davis, john fowler. _ohio._--paul fearing. proceedings in the senate. monday, december , . the first session of the seventh congress of the united states commenced this day, conformably to the constitution, and the senate assembled at the capitol in the city of washington. present: theodore foster, from rhode island. nathaniel chipman, from vermont. william hill wells and samuel white, from delaware. john e. howard, from maryland. stevens thompson mason and wilson cary nicholas, from virginia. abraham baldwin, from georgia. joseph anderson and william cooke, from tennessee. stephen r. bradley, appointed a senator by the state of vermont, for the remainder of the term for which their late senator, elijah paine, was appointed; john breckenridge, appointed a senator by the state of kentucky; christopher ellery, appointed a senator by the state of rhode island, for the remainder of the term for which their late senator, ray greene, was appointed; james jackson, appointed a senator by the state of georgia; george logan, appointed a senator by the executive of the state of pennsylvania, in the place of their late senator, peter muhlenberg, resigned; simeon olcott, appointed a senator by the state of new hampshire, for the remainder of the term for which their late senator, samuel livermore, was appointed; uriah tracy, appointed a senator by the state of connecticut; and robert wright, appointed a senator by the state of maryland, severally produced their credentials, and took their seats in the senate. the vice president being absent, the senate proceeded to the election of a president, _pro tempore_, as the constitution provides; and abraham baldwin was chosen. the president administered the oath, as the law prescribes, to mr. bradley, mr. breckenridge, mr. ellery, mr. jackson, mr. olcott, mr. tracy, and mr. wright, and the affirmation to mr. logan. _ordered_, that the secretary wait on the president of the united states and acquaint him that a quorum of the senate is assembled, and that, in the absence of the vice president, they have elected abraham baldwin, president of the senate, _pro tempore_. _ordered_, that the secretary acquaint the house of representatives that a quorum of the senate is assembled and ready to proceed to business, and that, in the absence of the vice president, they have elected abraham baldwin, president of the senate, _pro tempore_. a message from the house of representatives informed the senate that a quorum of the house is assembled, and have elected nathaniel macon their speaker, and are ready to proceed to business. _ordered_, that messrs. anderson and jackson be a committee on the part of the senate, together with such committee as the house of representatives may appoint on their part, to wait on the president of the united states and notify him that a quorum of the two houses is assembled, and ready to receive any communications that he may be pleased to make to them. a message from the house of representatives informed the senate that the house agree to the resolution of the senate for the appointment of a joint committee to wait on the president of the united states, and have appointed a committee on their part. mr. anderson reported, from the joint committee, that they had waited on the president of the united states and acquainted him that a quorum of both houses is assembled, and that the president of the united states informed the committee that he would make a communication to them by message to-morrow. tuesday, december . jonathan dayton and aaron ogden, from the state of new jersey, and jesse franklin, from the state of north carolina, severally attended. _resolved_, that two chaplains, of different denominations, be appointed to congress for the present session, one by each house, who shall interchange weekly. _presidents message._ the following letter and message were received from the president of the united states, by mr. lewis, his secretary: december , . sir: the circumstances under which we find ourselves at this place rendering inconvenient the mode heretofore practised, of making by personal address the first communications between the legislative and executive branches, i have adopted that by message, as used on all subsequent occasions through the session. in doing this i have had principal regard to the convenience of the legislature, to the economy of their time, to their relief from the embarrassment of immediate answers, on subjects not yet fully before them, and to the benefits thence resulting to the public affairs. trusting that a procedure founded in these motives will meet their approbation, i beg leave, through you, sir, to communicate the enclosed message, with the documents accompanying it, to the honorable the senate, and pray you to accept, for yourself and them, the homage of my high respect and consideration.[ ] thomas jefferson. the hon. the president of the senate. _fellow-citizens of the senate, and house of representatives_: it is a circumstance of sincere gratification to me that, on meeting the great council of our nation, i am able to announce to them, on grounds of reasonable certainty, that the wars and troubles which for so many years afflicted our sister nations, have at length come to an end; and that the communications of peace and commerce are once more opening among them. whilst we devoutly return thanks to the beneficent being who has been pleased to breathe into them the spirit of conciliation and forgiveness, we are bound with peculiar gratitude, to be thankful to him that our own peace has been preserved through so perilous a season, and ourselves permitted quietly to cultivate the earth, and to practise and improve those arts which tend to increase our comforts. the assurances, indeed, of friendly disposition, received from all the powers with whom we have principal relations, had inspired a confidence that our peace with them would not have been disturbed. but a cessation of irregularities which had affected the commerce of neutral nations, and of the irritations and injuries produced by them, cannot but add to this confidence, and strengthens, at the same time, the hope that wrongs committed on unoffending friends, under a pressure of circumstances, will now be reviewed with candor, and will be considered as founding just claims of restitution for the past, and new assurances for the future. among our indian neighbors, also, a spirit of peace and friendship generally prevails; and i am happy to inform you that the continued efforts to introduce among them the implements and the practice of husbandry, and of the household arts, have not been without success; that they are becoming more and more sensible of the superiority of this dependence for clothing and subsistence, over the precarious resources of hunting and fishing; and already we are able to announce that, instead of that constant diminution of their numbers, produced by their wars and their wants, some of them begin to experience an increase of population. to this state of general peace with which we have been blessed, one only exception exists. tripoli, the least considerable of the barbary states, had come forward with demands unfounded either in right or in compact, and had permitted itself to denounce war, on our failure to comply before a given day. the style of the demands admitted but one answer. i sent a small squadron of frigates into the mediterranean, with assurances to that power of our sincere desire to remain in peace; but with orders to protect our commerce against the threatened attack. the measure was seasonable and salutary. the bey had already declared war. his cruisers were out. two had arrived at gibraltar. our commerce in the mediterranean was blockaded, and that of the atlantic in peril. the arrival of our squadron dispelled the danger. one of the tripolitan cruisers, having fallen in with and engaged the small schooner enterprise, commanded by lieutenant sterret, which had gone as a tender to our larger vessels, was captured, after a heavy slaughter of her men, without the loss of a single one on our part. the bravery exhibited by our citizens on that element will, i trust, be a testimony to the world that it is not the want of that virtue which makes us seek their peace, but a conscientious desire to direct the energies of our nation to the multiplication of the human race, and not to its destruction. unauthorized by the constitution, without the sanction of congress, to go beyond the line of defence, the vessel, being disabled from committing further hostilities, was liberated with its crew. the legislature will doubtless consider whether, by authorizing measures of offence also, they will place our force on an equal footing with that of its adversaries. i communicate all material information on this subject, that, in the exercise of this important function confided by the constitution to the legislature exclusively, their judgment may form itself on a knowledge and consideration of every circumstance of weight. i wish i could say that our situation with all the other barbary states was entirely satisfactory. discovering that some delays had taken place in the performance of certain articles stipulated by us, i thought it my duty, by immediate measures for fulfilling them, to vindicate to ourselves the right of considering the effect of departure from stipulation on their side. from the papers which will be laid before you, you will be enabled to judge whether our treaties are regarded by them as fixing at all the measure of their demands, or, as guarding from the exercise of force our vessels within their power; and to consider how far it will be safe and expedient to leave our affairs with them in their present posture. i lay before you the result of the census lately taken of our inhabitants, to a conformity with which we are now to reduce the ensuing ratio of representation and taxation. you will perceive that the increase of numbers, during the last ten years, proceeding in geometrical ratio, promises a duplication in little more than twenty-two years. we contemplate this rapid growth, and the prospect it holds up to us, not with a view to the injuries it may enable us to do to others in some future day, but to the settlement of the extensive country still remaining vacant within our limits, to the multiplication of men susceptible of happiness, educated in the love of order, habituated to self-government, and valuing its blessings above all price. other circumstances, combined with the increase of numbers, have produced an augmentation of revenue arising from consumption, in a ratio far beyond that of population alone; and, though the changes in foreign relations now taking place, so desirably for the whole world, may for a season affect this branch of revenue, yet, weighing all probabilities of expense, as well as of income, there is reasonable ground of confidence that we may now safely dispense with all the internal taxes--comprehending excise, stamps, auctions, licenses, carriages, and refined sugars; to which the postage on newspapers may be added, to facilitate the progress of information; and that the remaining sources of revenue will be sufficient to provide for the support of government, to pay the interest of the public debts, and to discharge the principals within shorter periods than the laws or the general expectation had contemplated. war, indeed, and untoward events, may change this prospect of things, and call for expenses which the imposts could not meet. but sound principles will not justify our taxing the industry of our fellow-citizens to accumulate treasure for wars to happen we know not when, and which might not, perhaps, happen, but from the temptations offered by that treasure. these views, however, of reducing our burdens, are formed on the expectation that a sensible, and at the same time a salutary, reduction may take place in our habitual expenditures. for this purpose those of the civil government, the army, and navy, will need revisal. when we consider that this government is charged with the external and mutual relations only of these states; that the states themselves have principal care of our persons, our property, and our reputation, constituting the great field of human concerns, we may well doubt whether our organization is not too complicated, too expensive; whether offices and officers have not been multiplied unnecessarily, and sometimes injuriously to the service they were meant to promote. i will cause to be laid before you an essay towards a statement of those who, under public employment of various kinds, draw money from the treasury, or from our citizens. time has not permitted a perfect enumeration, the ramifications of office being too multiplied and remote to be completely traced in a first trial. among those who are dependent on executive discretion, i have begun the reduction of what was deemed unnecessary. the expenses of diplomatic agency have been considerably diminished. the inspectors of internal revenue, who were found to obstruct the accountability of the institution, have been discontinued. several agencies, created by executive authority, on salaries fixed by that also, have been suppressed, and should suggest the expediency of regulating that power by law, so as to subject its exercise to legislative inspection and sanction. other reformations of the same kind will be pursued with that caution which is requisite, in removing useless things, not to injure what is retained. but the great mass of public offices is established by law, and therefore by law alone can be abolished. should the legislature think it expedient to pass this roll in review, and try all its parts by the test of public utility, they may be assured of every aid and light which executive information can yield. considering the general tendency to multiply offices and dependencies, and to increase expenses to the ultimate term of burden which the citizens can bear, it behooves us to avail ourselves of every occasion which presents itself for taking off the surcharge; that it never may be seen here that, after leaving to labor the smallest portion of its earnings on which it can subsist, government shall itself consume the whole residue of what it was instituted to guard. in our care, too, of the public contributions intrusted to our direction, it would be prudent to multiply barriers against their dissipation, by appropriating specific sums to every specific purpose susceptible of definition; by disallowing all applications of money varying from the appropriation in object, or transcending it in amount; by reducing the undefined field of contingencies, and thereby circumscribing discretionary powers over money; and by bringing back to a single department all accountabilities for money, where the examinations may be prompt, efficacious, and uniform. an account of the receipts and expenditures of the last year, as prepared by the secretary of the treasury, will, as usual, be laid before you. the success which has attended the late sales of the public lands shows that, with attention, they may be made an important source of receipt. among the payments those made in discharge of the principal and interest of the national debt, will show that the public faith has been exactly maintained. to these will be added an estimate of appropriations necessary for the ensuing year. this last will, of course, be affected by such modifications of the system of expense as you shall think proper to adopt. a statement has been formed by the secretary of war, on mature consideration, of all the posts and stations where garrisons will be expedient, and of the number of men requisite for each garrison. the whole amount is considerably short of the present military establishment. for the surplus no particular use can be pointed out. for defence against invasion their number is as nothing; nor is it conceived needful or safe that a standing army should be kept up in time of peace, for that purpose. uncertain as we must ever be of the particular point in our circumference where an enemy may choose to invade us, the only force which can be ready at every point, and competent to oppose them, is the body of neighboring citizens, as formed into a militia. on these, collected from the parts most convenient, in numbers proportioned to the invading force, it is best to rely, not only to meet the first attack, but if it threatens to be permanent, to maintain the defence until regulars may be engaged to relieve them. these considerations render it important that we should, at every session, continue to amend the defects which from time to time show themselves in the laws for regulating the militia, until they are sufficiently perfect: nor should we now, or at any time, separate, until we can say that we have done every thing for the militia which we could do were an enemy at our door. the provision of military stores on hand will be laid before you, that you may judge of the additions still requisite. with respect to the extent to which our naval preparations should be carried, some difference of opinion may be expected to appear; but just attention to the circumstances of every part of the union will doubtless reconcile all. a small force will probably continue to be wanted for actual service in the mediterranean. whatever annual sum beyond that you may think proper to appropriate to naval preparations, would perhaps be better employed in providing those articles which may be kept without waste or consumption, and be in readiness when any exigence calls them into use. progress has been made, as will appear by papers now communicated, in providing materials for seventy-four gun ships, as directed by law. how far the authority given by the legislature for procuring and establishing sites for naval purposes, has been perfectly understood and pursued in the execution, admits of some doubt. a statement of the expenses already incurred on that subject is now laid before you. i have, in certain cases, suspended or slackened these expenditures, that the legislature might determine whether so many yards are necessary as have been contemplated. the works at this place are among those permitted to go on; and five of the seven frigates directed to be laid up, have been brought and laid up here, where, besides the safety of their position, they are under the eye of the executive administration, as well as of its agents; and where yourselves also will be guided by your own view in the legislative provisions respecting them, which may, from time to time, be necessary. they are preserved in such condition, as well the vessels as whatever belongs to them, as to be at all times ready for sea at a short warning. two others are yet to be laid up, as soon as they shall receive the repairs requisite to put them also into sound condition. as a superintending officer will be necessary at each yard, his duties and emoluments, hitherto fixed by the executive, will be a more proper subject for legislation. a communication will also be made of our progress in the execution of the law respecting the vessels directed to be sold. the fortifications of our harbors, more or less advanced, present considerations of great difficulty. while some of them are on a scale sufficiently proportioned to the advantages of their position, to the efficacy of their protection, and the importance of the points within it, others are so extensive, will cost so much in their first erection, so much in their maintenance, and require such a force to garrison them, as to make it questionable what is best now to be done. a statement of those commenced or projected; of the expenses already incurred; and estimates of their future cost, as far as can be foreseen, shall be laid before you, that you may be enabled to judge whether any alteration is necessary in the laws respecting this subject. agriculture, manufactures, commerce, and navigation, the four pillars of our prosperity, are then most thriving when left most free to individual enterprise. protection from casual embarrassments, however, may sometimes be seasonably interposed. if, in the course of your observations or inquiries, they should appear to need any aid within the limits of our constitutional powers, your sense of their importance is a sufficient assurance they will occupy your attention. we cannot, indeed, but all feel an anxious solicitude for the difficulties under which our carrying trade will soon be placed. how far it can be relieved, otherwise than by time, is a subject of important consideration. the judiciary system of the united states, and especially that portion of it recently erected, will, of course, present itself to the contemplation of congress; and that they may be able to judge of the proportion which the institution bears to the business it has to perform, i have caused to be procured from the several states, and now lay before congress, an exact statement of all the causes decided since the first establishment of the courts, and of those which were depending when additional courts and judges were brought in to their aid. and while on the judiciary organization, it will be worthy of your consideration whether the protection of the inestimable institution of juries has been extended to all the cases involving the security of our persons and property. their impartial selection also being essential to their value, we ought further to consider whether that is sufficiently secured in those states where they are named by a marshal depending on executive will, or designated by the court, or by officers dependent on them. i cannot omit recommending a revisal of the laws on the subject of naturalization. considering the ordinary chances of human life, a denial of citizenship under a residence of fourteen years, is a denial to a great proportion of those who ask it; and controls a policy pursued, from their first settlement, by many of these states, and still believed of consequence to their prosperity. and shall we refuse to the unhappy fugitives from distress that hospitality which the savages of the wilderness extended to our fathers arriving in this land? shall oppressed humanity find no asylum on this globe? the constitution, indeed, has wisely provided that, for admission to certain offices of important trust, a residence shall be required sufficient to develope character and design. but might not the general character and capabilities of a citizen be safely communicated to every one manifesting a bona fide purpose of embarking his life and fortunes permanently with us? with restrictions, perhaps, to guard against the fraudulent usurpation of our flag? an abuse which brings so much embarrassment and loss on the genuine citizen, and so much danger to the nation of being involved in war, that no endeavor should be spared to detect and suppress it. these, fellow-citizens, are the matters respecting the state of the nation which i have thought of importance to be submitted to your consideration at this time. some others of less moment, or not yet ready for communication, will be the subject of separate messages. i am happy in this opportunity of committing the arduous affairs of our government to the collected wisdom of the union. nothing shall be wanting on my part to inform, as far as in my power, the legislative judgment, nor to carry that judgment into faithful execution. the prudence and temperance of your discussions will promote, within your own walls, that conciliation which so much befriends rational conclusion; and by its example will encourage among our constituents that progress of opinion which is tending to unite them in object and in will. that all should be satisfied with any one order of things, is not to be expected; but i indulge the pleasing persuasion that the great body of our citizens will cordially concur in honest and disinterested efforts, which have for their object to preserve the general and state governments in their constitutional form and equilibrium; to maintain peace abroad, and order and obedience to the laws at home; to establish principles and practices of administration favorable to the security of liberty and property, and to reduce expenses to what is necessary for the useful purposes of government. thomas jefferson. december , . the letter and message were read, and ordered to be printed for the use of the senate. the papers referred to in the message were in part read, and the senate adjourned. wednesday, december . the senate proceeded to the appointment of a chaplain to congress on their part, and the rev. mr. gantt was elected. thursday, december . _resolved_, that james mathers, sergeant-at-arms and doorkeeper to the senate, be, and he is hereby, authorized to employ one additional assistant, and two horses, for the purpose of performing such services as are usually required of the doorkeeper to the senate; and that the sum of twenty-eight dollars be allowed him weekly for the purpose during the session, and for twenty days after. friday, december . johnathan mason, from the state of massachusetts, and james sheafe, from the state of new hampshire, severally attended. monday, december . james hillhouse, from the state of connecticut, and dwight foster, from the state of massachusetts, severally attended. a message from the house of representatives informed the senate that the house have elected the reverend william parkinson a chaplain to congress on their part. saturday, december . gouverneur morris, from the state of new york, attended. thomas sumter, appointed a senator by the legislature of the state of south carolina, in the place of their late senator, charles pinckney, resigned, produced his credentials, was qualified, and took his seat in the senate. monday, december . the credentials of george logan, appointed a senator by the legislature of the state of pennsylvania, were presented and read; and the affirmation prescribed by law was administered by the president. tuesday, december . david stone, from the state of north carolina, attended. monday, december . john ewing colhoun, appointed a senator by the legislature of the state of south carolina, produced his credentials, was qualified, and took his seat in the senate. thursday, december . mr. breckenridge presented the petition of isaac zane, stating that he was made a prisoner at the age of nine years by the wyandot indians, with whom he remained until he became of age; had a family by a woman of that nation, and a tract of land was assigned him by the said nation, on a branch of the great miami, and which tract of land was ceded to the united states by a recent treaty with the said wyandot indians, and praying such relief as may be deemed equitable; and the petition was read, and committed to messrs. breckenridge, tracy, and ogden, to consider and report thereon. tuesday, january , . mr. brown, from the state of kentucky, attended. _reporting the debates._ the president laid before the senate a letter signed samuel h. smith, stating that he was desirous of taking notes of the proceedings of the senate, in such manner as to render them correct: whereupon, _resolved_, that any stenographer desirous to take the debates of the senate on legislative business, may be admitted for that purpose, at such place within the area of the senate chamber as the president may allot: and, on motion to reconsider the above resolution, it passed in the affirmative--yeas , nays . yeas.--messrs. anderson, breckenridge, cocke, dayton, ellery, dwight foster, hillhouse, howard, logan, jonathan mason, morris, ogden, olcott, sumter, tracy, white, and wright. nays.--messrs. baldwin, brown, chipman, t. foster, franklin, jackson, nicholas, sheafe, and stone. on motion, to amend the resolution, by adding, after the word stenographer, "he having given bond in the sum of ----, with two sufficient sureties, in the sum of ---- each, for his good conduct," it passed in the negative--yeas , nays , as follows: yeas.--messrs. chipman, dayton, dwight foster, hillhouse, howard, morris, ogden, olcott, sheafe, and tracy. nays.--messrs. anderson, baldwin, breckenridge, brown, cocke, colhoun, ellery, t. foster, franklin, jackson, logan, s. t. mason, j. mason, nicholas, stone, sumter, white, and wright. on motion, to agree to the original resolution, amended by adding the words "or note-taker," after the words stenographer, it passed in the affirmative--yeas , nays , as follows: yeas.--messrs. anderson, baldwin, breckenridge, brown, cocke, colhoun, ellery, t. foster, franklin, jackson, logan, s. t. mason, nicholas, stone, sumter, and wright. nays.--messrs. chipman, dayton, dwight foster, hillhouse, howard, j. mason, morris, ogden, olcott, sheafe, tracy, and white. so it was _resolved_, that any stenographer, _or note-taker_, desirous of taking the debates of the senate on legislative business, may be admitted for that purpose at such place, within the area of the senate chamber, as the president shall allot.[ ] wednesday, january . _judiciary system._ mr. mason called for the reading of the message, which was in part read; when the further reading of the whole document was suspended, and that part only read, which relates to the judiciary system. upon which mr. breckenridge, from kentucky, rose, and stated that two days ago he had given notice that on this day he would submit to the consideration of the senate two resolutions respecting the judiciary establishment of the united states. as, however, those resolutions were not necessarily connected, and as they might be distinctly discussed, he would at present confine himself to moving the first resolution; without however foreclosing to himself the right of submitting the second after the disposition of the first. he, therefore, moved that the act passed last session _respecting the judiciary establishment_ of the united states be repealed. [this is the act which created sixteen new circuit judges.] friday, january . _judiciary system._ agreeably to the order of the day, the senate proceeded to the consideration of the motion made on the th instant, to wit: "that the act of congress passed on the th day of february, , entitled 'an act to provide for the more convenient organization of the courts of the united states,' ought to be repealed."[ ] mr. breckenridge then rose and addressed the president, as follows: it will be expected of me, i presume, sir, as i introduced the resolution now under consideration, to assign my reasons for wishing a repeal of this law. this i shall do; and shall endeavor to show: . that the law is unnecessary and improper, and was so at its passage; and . that the courts and judges created by it, can and ought to be abolished. st. that the act under consideration was unnecessary and improper, is, to my mind, no difficult task to prove. no increase of courts or judges could be necessary or justifiable, unless the existing courts and judges were incompetent to the prompt and proper discharge of the duties consigned to them. to hold out a show of litigation, when in fact little exists, must be impolitic; and to multiply expensive systems, and create hosts of expensive officers, without having experienced an actual necessity for them, must be a wanton waste of the public treasure. the document before us shows that, at the passage of this act, the existing courts, not only from their number, but from the suits depending before them, were fully competent to a speedy decision of those suits. it shows, that on the th day of june last, there were depending in all the circuit courts, (that of maryland only excepted, whose docket we have not been furnished with,) one thousand five hundred and thirty-nine suits. it shows that eight thousand two hundred and seventy-six suits of every description have come before those courts, in ten years and upwards. from this it appears, that the annual average amount of suits has been about eight hundred. but sundry contingent things have conspired to swell the circuit court dockets. in maryland, virginia, and in all the southern and south-western states, a great number of suits have been brought by british creditors; this species of controversy is nearly at an end. in pennsylvania, the docket has been swelled by prosecutions in consequence of the western insurrection, by the disturbances in bucks and northampton counties: and by the sedition act. these i find amount in that state to two hundred and forty suits. in kentucky, non-resident land claimants have gone into the federal court from a temporary convenience: because, until within a year or two past, there existed no court of general jurisdiction co-extensive with the whole state. i find, too, that of the six hundred and odd suits which have been commenced there, one hundred and ninety-six of them have been prosecutions under the laws of the united states. in most of the states there have been prosecutions under the sedition act. this source of litigation is, i trust, for ever dried up. and, lastly, in _all_ the states a number of suits have arisen under the excise law; which source of controversy will, i hope, before this session terminates, be also dried up. but this same document discloses another important fact; which is, that notwithstanding all these untoward and temporary sources of federal adjudication, the suits in those courts are _decreasing_; for, from the dockets exhibited (except kentucky and tennessee, whose suits are summed up in the aggregate) it appears, that in there were one thousand two hundred and seventy-four, and in there were six hundred and eighty-seven suits commenced; showing a decrease of five hundred and eighty-seven suits. could it be necessary then to _increase_ courts when suits were _decreasing_? could it be necessary to multiply judges, when their duties were diminishing? and will i not be justified, therefore, in affirming, that the law was unnecessary, and that congress acted under a mistaken impression, when they multiplied courts and judges at a time when litigation was actually decreasing? but, sir, the decrease of business goes a small way in fixing my opinion on this subject. i am inclined to think, that so far from there having been a necessity at this time for an increase of courts and judges, that the time never will arrive when america will stand in need of thirty-eight federal judges. look, sir, at your constitution, and see the judicial power there consigned to federal courts, and seriously ask yourself can there be fairly extracted from those powers subjects of litigation sufficient for six supreme and thirty-two inferior court judges? to me it appears impossible. the judicial powers given to the federal courts were never intended by the constitution to embrace, exclusively, subjects of litigation, which could, with propriety, be left with the state courts. their jurisdiction was intended principally to extend to great national and foreign concerns. except cases arising under the laws of the united states, i do not at present recollect but three or four kinds in which their power extends to subjects of litigation, in which private persons only are concerned. and can it be possible, that with a jurisdiction embracing so small a portion of private litigation, in a great part of which the state courts might, and ought to participate, that we can stand in need of thirty-eight judges, and expend in judiciary regulations the annual sum of $ , ? no other country, whose regulations i have any knowledge of, furnishes an example of a system so prodigal and extensive. in england, whose courts are the boast, and said to be the security of the rights of the nation, every man knows there are but twelve judges and three principal courts. these courts embrace, in their original or appellate jurisdiction, almost the whole circle of human concerns. the king's bench and common pleas, which consist of four judges each, entertain all the common law suits of _s._ and upwards, originating among nine millions of the most commercial people in the world. they moreover revise the proceedings of not only all the petty courts of record in the kingdom, even down to the courts of piepoudre, but also of the court of king's bench in ireland; and these supreme courts, after centuries of experiment, are found to be fully competent to _all_ the business of the kingdom. i will now inquire into the power of congress to put down these additional courts and judges. first, as to the courts, congress are empowered by the constitution "from time to time, to ordain and establish inferior courts." the act now under consideration, is a legislative construction of this clause in the constitution, that congress may abolish as well as create these judicial officers; because it does expressly, in the twenty-seventh section of the act, abolish the then existing inferior courts, for the purpose of making way for the present. this construction, i contend, is correct; but it is equally pertinent to my object, whether it be or be not. if it be correct, then the present inferior courts may be abolished as constitutionally as the last; if it be not, then the law for abolishing the former courts, and, establishing the present, was unconstitutional, and consequently repealable. but independent of this legislative construction, on which i do not found my opinion, nor mean to rely my argument, there is little doubt indeed, in my mind, as to the power of congress on this law. the first section of the third article vests the judicial power of the united states in one supreme court and such inferior courts as congress may, from time to time, ordain and establish. by this clause congress _may_, from time to time, establish inferior courts; but it is clearly a discretionary power, and they _may not_ establish them. the language of the constitution is very different when regulations are not left discretional. for example, "the trial," says the constitution, "of all crimes '(except in cases of impeachment) shall be by jury: representatives and direct taxes shall be apportioned according to numbers. all revenue bills shall originate in the house of representatives,'" &c. it would, therefore, in my opinion, be a perversion, not only of language, but of intellect, to say, that although congress may, from time to time, establish inferior courts, yet, when established, that they shall not be abolished by a subsequent congress possessing equal powers. it would be a paradox in legislation. d. as to the judges. the judiciary department is so constructed as to be sufficiently secured against the improper influence of either the executive or legislative departments. the courts were organized and established by the legislature, and the executive creates the judges. being thus organized, the constitution affords the proper checks to secure their honesty and independence in office. it declares they shall not be removed from office during good behavior; nor their salaries diminished during their continuance in office. from this it results, that a judge, after his appointment, is totally out of the power of the president, and his salary secured against legislative diminution, during his continuance in office. the first of these checks, which protects a judge in his office during good behavior, applies to the president only, who would otherwise have possessed the power of removing him, like all other officers, at pleasure; and the other check, forbidding a diminution of their salaries, applies to the legislature only. they are two separate and distinct checks, furnished by the constitution against two distinct departments of the government; and they are the only ones which are or ought to have been furnished on the subject. but because the constitution declares that a judge shall hold his office during good behavior, can it be tortured to mean, that he shall hold his office after it is abolished? can it mean, that his tenure should be limited by behaving well in an office which did not exist? can it mean that an office may exist, although its duties are extinct? can it mean, in short, that the shadow, to wit, the judge, can remain, when the substance, to wit, the office, is removed? it must have intended all these absurdities, or it must admit a construction which will avoid them. the construction obviously is, that a judge should hold an existing office, so long as he did his duty in that office; and not that he should hold an office that did not exist, and perform duties not provided by law. had the construction which i contend against been contemplated by those who framed the constitution, it would have been necessary to have declared, explicitly, that the judges should hold their offices and their salaries during good behavior. let me not be told, sir, that the salaries in the present case are inconsiderable, and ought not to be withheld; and that the doctrine is not a dangerous one. i answer, it is the principle i contend against; and if it is heterodox for one dollar, it is equally so for a million. but i contend the principle, if once admitted, may be extended to destructive lengths. suppose it should hereafter happen, that those in power should combine to provide handsomely for their friends, could any way so plain, easy, and effectual, present itself, as by creating courts, and filling them with those friends? might not sixty as well as sixteen, with salaries of twenty thousand, instead of two thousand dollars, be provided for in this way? there is another difficulty under this construction still to encounter, and which also grows out of the constitution: by the constitution, a new state may be formed by the junction of two or more states, with their assent and that of congress. if this doctrine, once a judge and always a judge, be correct, what would you do in such an event, with the district judges of the states who formed that junction? both would be unnecessary, and you would have, in a single state, two judges of equal and concurrent jurisdiction; or one a real judge, with an office, and another a quasi judge, without an office. the states also forming such junction, would be equally embarrassed with their state judges; for the same construction would be equally applicable to them. upon this construction, also, an infallibility is predicated, which it would be arrogance in any human institution to assume, and which goes to cut up legislation by the roots. we would be debarred from that which is indulged to us from a higher source, and on subjects of higher concern than legislation; i mean a retraction from and correction of our errors. on all other subjects of legislation we are allowed, it seems, to change our minds, except on judiciary subjects, which, of all others, are the most complex and difficult. i appeal to our own statute book to prove this difficulty: for in ten years congress have passed no less than twenty-six laws on this subject. mr. j. mason, of massachusetts, said, it would be agreed on all hands that this was one of the most important questions that ever came before a legislature. were he not of this opinion he would not have risen to offer his sentiments. but he felt so deep an interest in the question, and from the respect which he entertained for the district of country he represented, he deemed it his duty to meet the subject, and not be satisfied with giving to it his silent negative. the constitution, in the construction of the executive, legislative, and judiciary departments, had assigned to each a different tenure. the president was chosen for four years; the senate for six years, subject to a prescribed rotation biennially; the house of representatives for two years; and the judiciary during good behavior. it says to the president, at the expiration of every four years, you shall revert to the character of a private citizen, however splendid your talents or conspicuous your virtue. why? because you have assigned to you powers which it is dangerous to exercise. you have the power of creating offices and officers. you have prerogatives. the temptation to an abuse of your power is great. such has been the uniform experience of ages. the constitution holds the same language to the senate and house of representatives: it says, it is necessary for the good of society that you also should revert at short periods to the mass of the people, because to you are consigned the most important duties of government, and because you hold the purse-strings of the nation. to the judiciary: what is the language applied to them? the judges are not appointed for two, four, or any given number of years; but they hold their appointments for life, unless they misbehave themselves. why? for this reason: they are not the depositaries of the high prerogatives of government. they neither appoint to office, nor hold the purse-strings of the country, nor legislate for it. they depend entirely upon their talents, which is all they have to recommend them. they cannot, therefore, be disposed to pervert their power to improper purposes. what are their duties? to expound and apply the laws. to do this with fidelity and skill, requires a length of time. the requisite knowledge is not to be procured in a day. these are the plain and strong reasons which must strike every mind, for the different tenure by which the judges hold their offices, and they are such as will eternally endure wherever liberty exists. on examination, it will be found that the people, in forming their constitution, meant to make the judges as independent of the legislature as of the executive. because the duties which they have to perform, call upon them to expound not only the laws, but the constitution also; in which is involved the power of checking the legislature in case it should pass any laws in violation of the constitution. for this reason it was more important that the judges in this country should be placed beyond the control of the legislature, than in other countries where no such power attaches to them. the constitution says: "the judicial power of the united states shall be vested in one supreme court, and in such inferior courts as the congress may, from time to time, ordain and establish. the judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office." thus it says, "the judges _shall hold_ their offices during good behavior." how can this direction of the constitution be complied with, if the legislature shall, from session to session, repeal the law under which the office is held, and _remove the office_? he did not conceive that any words, which human ingenuity could devise, could more completely get over the remarks that had been made by the gentleman from kentucky. but that gentleman says, that this provision of the constitution applies exclusively to the president. he considers it as made to supersede the powers of the president to remove the judges. but could this have been the contemplation of the framers of the constitution, when even the right of the president to remove officers at pleasure, was a matter of great doubt, and had divided in opinion our most enlightened citizens. not that he stated this circumstance because he had doubts. he thought the president ought to have the right; but it did not emanate from the constitution; was not expressly found in the constitution, but sprang from legislative construction. besides, if congress have the right to repeal the whole of the law, they must possess the right to repeal a section of it. if so, they may repeal the law so far as it applies to a particular district, and thus get rid of an obnoxious judge. they may remove his office from him. would it not be absurd still to say, that the removed judge held his office during good behavior? the constitution says: "the judges shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office." why this provision? why guard against the power to deprive the judges of their pay in a diminution of it, and not provide against what was more important, their existence? still, if the gentlemen would not agree with him as to the unconstitutionality of the measure proposed, he would ask, was it expedient? were there not great doubts existing throughout the united states? ought not each gentleman to say, though i may have no doubts or hesitancy, are not a large portion of our citizens of opinion that it would violate the constitution? if this diversity of sentiment exists, ought not the evils under the judiciary law to be very great before we touch it? ought we not to aim at harmonizing, instead of dividing our citizens? was not the constitution a sacred instrument; an instrument ever to be approached with reverence; an instrument which ought not lightly to be drawn from its hallowed retreat, and subjected to the flux and reflux of passion? but where is the evil complained of? this system was established only last session; scarcely had it been yet originated; scarcely had we tried it on its very threshold; where then the necessity of being so pointed, as to destroy a system scarcely formed three days ago? does not this manifest precipitation? will it not manifest more magnanimity, more rationality, to abide by it until we try it; instead of taking up a pen and dashing it out of existence? mr. morris, of new york.--mr. president, i am so very unfortunate, that the arguments in favor of the motion have confirmed my opinion that the law to which it refers ought not to be repealed. the honorable mover has rested his proposition on two grounds: st. that the judiciary law passed last session is unnecessary; and, dly. that we have a right to repeal it, and ought to exercise that right. gentlemen say, recur to the ancient system. what is the ancient system? six judges of the supreme court to ride the circuit of america twice a year, and sit twice a year at the seat of government. without inquiring into the accuracy of a statement made by the gentleman respecting the courts of england, in which, i apprehend, he will find himself deceived, let me ask what would be the effects of the old system here? cast an eye over the extent of our country, and a moment's consideration will show that the first magistrate, in selecting a character for the bench, must seek less the learning of a judge than the agility of a post-boy. can it be possible that men advanced in years, (for such alone can have the maturity of judgment fitting for the office;) that men educated in the closet--men who, from their habits of life, must have more strength of mind than of body; is it, i say, possible that such men can be running from one end of the continent to the other? or, if they could, can they find time to hear and decide causes? i have been told by men of eminence on the bench, that they could not hold their offices under the old arrangement. what is the present system? you have added to the old judges seven district and sixteen circuit judges. what will be the effect of the desired repeal? will it not be a declaration to the remaining judges that they hold their offices subject to your will and pleasure? and what will be the result of this? it will be, that the check established by the constitution, wished for by the people, and necessary in every contemplation of common sense, is destroyed. it had been said, and truly, too, that governments are made to provide against the follies and vices of men. for to suppose that governments rest upon reason is a pitiful solecism. if mankind were reasonable, they would want no government. hence, checks are required in the distribution of the power among those who are to exercise it for the benefit of the people. did the people of america vest all power in the legislature? no; they had vested in the judges a check intended to be efficient--a check of the first necessity, to prevent an invasion of the constitution by unconstitutional laws--a check which might prevent any faction from intimidating or annihilating the tribunals themselves. on this ground, said mr. morris, i stand to arrest the victory meditated over the constitution of my country; a victory meditated by those who wish to prostrate that constitution for the furtherance of their own ambitious views. not of him who had recommended this measure, nor of those who now urge it; for, on his uprightness and their uprightness, i have the fullest reliance; but of those in the background who have further and higher objects. these troops that protect the outworks are to be first dismissed. those posts which present the strongest barriers are first to be taken, and then the constitution becomes an easy prey. let us then, secondly, consider whether we have constitutionally a power to repeal this law. [here mr. morris quoted the third article and first section of the constitution.] i have heard a verbal criticism about the words _shall_ and _may_, which appeared the more unnecessary to me, as the same word, _shall_, is applied to both members of the section. for it says: "the judicial power, &c. _shall_ be vested in one supreme court and such inferior courts as the congress _may_, from time to time, ordain and establish." the legislature, therefore, had, without doubt, the right of determining, in the first instance, what inferior courts should be established; but when established, the words are imperative, a part of the judicial power shall vest in them. and "the judges shall hold their offices during good behavior." they shall receive a compensation which shall not be diminished during their continuance in office. therefore, whether the remarks be applied to the tenure of office, or the quantum of compensation, the constitution is equally imperative. after this exposition, gentlemen are welcome to any advantage to be derived from the criticism on _shall_ and _may_. monday, january . _apportionment bill._ the apportionment bill, as received from the house of representatives, was taken up. this bill fixes the ratio of representation at one member for every , persons in each state. mr. wells moved to strike out , , his object being to introduce , , for which he assigned his reasons at some length. on this motion a debate of some length ensued, in which the provisions of the bill as they stood were supported by messrs. jackson, mason, wright, and cocke; and opposed by messrs. wells and hillhouse. mr. white, of delaware.--believing as i do, sir, that the minds of gentlemen on this floor are thoroughly made up as to the present subject, and that any observations now to be offered will not influence a single vote, but merely occupy the time of the senate to no useful purpose, i shall ask your indulgence but a few moments. i cannot, sir, sit quietly and see this bill reported by your committee, meditating as it certainly does a manifest injury to the state i have the honor in part to represent, pass into a law, without doing more than oppose to it a silent negative; without holding up my voice and protesting most solemnly against the extreme injustice of the measure. if, sir, this bill passes in its present shape, there will be left in the state of delaware twenty-eight thousand eight hundred and eleven people unrepresented in the popular branch of their legislature. gentlemen may say, that this is only a fraction, and that in a general apportionment of representation, fractional numbers are unavoidable. sir, i acknowledge it is only a fraction, but it is a fraction that includes one-half the population of that state, and amounts, even upon the present contemplated plan, to within four thousand of the number sufficient to gain another representative. sir, twenty-eight or thirty thousand would, to one of the large states, be an inconsiderable fraction. apportion that number, for instance, among the twenty-one representatives from virginia, and you give to each member but a fraction of about thirteen hundred; whereas from delaware, there will be but one representative, and over and above his legal number a fraction of near twenty-nine thousand people unrepresented. is this fair, sir? is this equitable? i ask, gentlemen, is it not unfriendly and wrongful? and can it be possible, sir, that the transcendent omnipotence of a majority have fated, if i may use the expression, this injustice upon a sister state? suppose, sir, delaware to have but one representative and virginia twenty, a fraction of five thousand to the former is equal to a redundant number of one hundred thousand to the latter; or take, sir, the present case, and you will find that the fraction of twenty-nine thousand in the state of delaware, apportioned upon the representation, is at least equal to a redundant number in the state of virginia of three hundred thousand. if, sir, the divisor is fixed at thirty thousand, delaware will have two representatives; her weight, then, in the other house, will, in relation to virginia, be as one to twelve, but if she is compelled to submit to the divisor of thirty-three thousand, you allow her but one representative; you deny her nearly one-half her rightful influence, and place her on the floor of the house of representatives in a relative situation toward virginia, as one to twenty-one. sir, an additional representative to any of the larger states is not of the same consequence as another would be to delaware. to virginia, for instance, one is but the twentieth part of her force, to delaware it would be one-half her force. gentlemen may say that delaware is the smallest state; but let it be remembered, sir, that her rights are equally sacred with those of the largest states; and although her citizens are not so numerous, yet, sir, their state sovereignty and other constitutional rights are quite as dear and valuable to them, as the blessing can be to any other people; and, let me add, sir, she is among the oldest states; her history travels back through the bloody scenes of your revolution; she dates her era at your declaration of independence, and i am proud to say, and can do so without detracting from her neighbors, in proportion to her population, her resources, and extent, during the severe contest for american liberty, she contributed, in blood and treasure, as freely to its support and permanent establishment, as any state in the union. sir, the doctrine urged by some gentlemen that the divisor of thirty thousand will increase the house of representatives to a body too large and unwieldy for the convenient and ordinary purposes of business, seems to me totally without foundation. the observation and experience of every man must be sufficient at once to satisfy him that this cannot be the consequence; we have before our eyes, sir, examples that prove directly the reverse. this divisor will give to your house of representatives but one hundred and fifty-seven members; the state of virginia has in the popular branch of her legislature one hundred and eighty members, and we have not been told that it is too numerous. the british house of commons, before the union with ireland, consisted of about five hundred and fifty members, and we heard no complaint of the numbers; on the contrary, sir, the nation wished a fuller representation; and it is from that house, too, sir, that, according to this logic, must be so extremely riotous and disorderly, we have drawn most of the rules that govern the proceedings of this honorable body. again, sir, the nature and spirit of your government requires a full representation in the legislature. it is a government that must depend alone for its support upon the affections of the people; and the best security for their affections is to extend to them, upon as large a scale as comports with the public safety, the freedom of choice, and right of representation. in so extensive a country as this, many parts of which are thinly inhabited, and the election districts consequently including vast tracts of territory, it must often happen that the electors are entirely unacquainted with the person for whom they vote; but if you increase the representation, you reduce the size of the election districts; you bring the candidate within the very neighborhood of the electors; they see him, they know him; they are better enabled to estimate truly his character, and judge of his capacity and disposition to serve them. this, sir, will secure in a great degree, the constituent from imposition, and attach to the representative a higher and more immediate responsibility; it will inspire the people with confidence in your government, and induce them more cheerfully to acquiesce in your laws. but, above all, sir, the divisor of thirty thousand leaves throughout the united states a less aggregate of unrepresented fractions than any divisor you can take; less, permit me to say, sir, by one hundred and sixteen thousand, than the one contemplated in the bill; and i am sure gentlemen on all sides of the house wish the country as fairly represented as possible. to my mind this is a most conclusive argument in favor of the divisor of thirty thousand. the question was now taken on the motion to strike out , , and lost--ayes , noes . mr. morris then moved, and mr. tracy seconded the motion to add, after "one representative for every , ," the words "and one representative for every fractional number of , persons." the number , was used to avoid a violation of the constitution, which prohibits the allotting to each state more representatives than one for every , . thus, in the case of delaware, the ratio being , , delaware would be entitled to one member for , , and one for the fraction of , : both which numbers would amount to , ; which last number entitled a state to two members without violating the constitution. this motion was opposed by messrs. wright and anderson, and was lost--ayes , noes . on the question to agree to the final passage of this bill, it was determined in the affirmative--yeas , nays , as follows: yeas.--messrs. anderson, baldwin, breckenridge, brown, chipman, cocke, colhoun, dayton, ellery, t. foster, dwight foster, franklin, howard, jackson, logan, s. t. mason, j. mason, morris, nicholas, sheafe, stone, sumter, and wright. nays.--messrs. hillhouse, olcott, tracy, wells, and white. the bill was then read a third time, and passed. tuesday, january _judiciary system._ the senate resumed the consideration of the motion made on the th instant, "that the act of congress passed on the th day of february, , entitled 'an act to provide for the more convenient organization of the courts of the united states,' ought to be repealed." mr. jackson, of georgia.--i rise with an impression of awe on the present question; for we must tread on constitutional ground, which should not be lightly touched on, nor too hastily decided. every step we take ought to be well examined, and our minds convinced before we give that vote which cannot be recalled, and which will fix a principle on legislative construction, which, perhaps, will prevail as long as we remain a nation. in the early stage of this discussion, i had almost determined to say nothing, and am at present determined not to say much; but a justification of the vote i shall give, has impelled me to offer my reasons for it to the state i represent; and i have made up my mind, decidedly, to vote for the resolution before you, if i cannot be otherwise convinced. we have been asked, if we are afraid of having an army of judges? for myself, i am more afraid of an army of judges, under the patronage of the president, than of an army of soldiers. the former can do us more harm. they may deprive us of our liberties, if attached to the executive, from their decisions; and from the tenure of office contended for, we cannot remove them; while the soldier, however he may act, is enlisted, or if not enlisted, only subsisted for two years; whilst the judge is enlisted for life, for his salary cannot be taken from him. [see th division, th section, st art. constitution.] sir, it is said these evils will not happen. but what security have we for the truth of the declaration? have we not seen sedition laws? have we not heard judges crying out through the land sedition! and asking those whose duty it was to inquire, is there no sedition here? it is true, the sedition law had expired with the last administration, and he trusted it would not exist, or at least be acted on, under the virtuous jefferson. but hereafter, if it should exist, your judges, under the cry of sedition and political heresy, may place half your citizens in irons. i thank god, that no such law now exists, or is likely to exist. i thank god, that we are not now under the influence of an intolerant clergy, as is evident from their abuse of the president; and that we are not under dread of the patronage of judges, is manifest, from their attack on the secretary of state. and i trust, that we shall long keep this patronage off, by not sanctioning the religious persecution of the clergy on the one hand, nor the political violence of the judges on the other. but, upon the principles of gentlemen, the law which creates a judge cannot be touched. the moment it is passed, it exists to the end of time. what is the implication of this doctrine? to alter or amend what may greatly require alteration or amendment, it is necessary to return to the creator, and to inquire what this creator is. my principle is, that the creator is the people themselves; that very people of the united states whom the gentleman from new york had declared ourselves to be the guardians of, to save the people themselves from their greatest enemies; and to save whom from destroying themselves he had invoked this house. good god! is it possible that i have heard such a sentiment in this body? rather should i have expected to have heard it sounded from the despots of turkey, or the deserts of siberia, than to have heard it uttered by an enlightened legislator of a free country, and on this floor. i am clearly, therefore, of opinion, that if the power to alter the judiciary system vests not here, it vests nowhere. it follows, from the ideas of gentlemen, that we must submit to all the evils of the present system, though it should exhibit all the horrors of the inquisition. but, said mr. j., gentlemen say the united states embrace a vast extent of territory, from fifteen to seventeen thousand miles in length. what is the inevitable deduction to be drawn from this fact? why, that a system which is to apply to this extent of country, embracing different laws and different habits, will require frequent alterations: whereas, if we are tied down to a system of inferior tribunals once formed, we cannot even touch the plan of the judicial system of the little district of columbia. nor can we touch the inferior jurisdictions in the north-western territory, nor in the mississippi territory, in both of which the systems were acknowledged to be adapted only to present circumstances, and in the last of which the rights of georgia were implicated. it follows, that whatever these rights may be, the system is sacred; and, as to the mississippi territory, if grounded on this doctrine, notwithstanding the claim of georgia, her jurisdiction is totally lost. to revert to the sedition law. if the doctrine supported now were true, then, had the sedition law been incorporated as a system by itself, an inferior tribunal, and officers been attached to it, would it have been perpetually tacked to the constitution? that law under which so many of our citizens have been imprisoned for writings and speakings; and one, among others, for wishing that the wadding of a gun had been lodged in a certain presidential part. the gentleman had dwelt on the inconveniences and evils of the old system, and had particularly condemned that part of it, which, as he termed it, had converted the judges into post-boys. but i will appeal to the gentleman, if in england, where so much more business is done, there are more than twelve judges, and whether those judges do not ride the circuit? and why shall our judges not ride the circuits? shall we have six judges sitting here to decide cases which require a knowledge of the laws, the morals, the habits, the state of the property of the several states? would not this knowledge be much better obtained by their riding the circuits, and in the states themselves, making themselves acquainted with whatever relates to them, and the cases of appeals to come before them? it has been remarked by a celebrated writer on the english constitution, that one of the greatest political evils that could befall a people, was the existence of large judiciary bodies. to illustrate his ideas, he had instanced the parliaments of france. if the spirit which last session gave existence to sixteen new judges continued, who could say by what number they would be limited? they might indeed soon become, what they had been likened to, an army of judges. i do not wish to be severe in my remarks on the conduct of the late administration. i admire the private character of mr. adams. but i do believe the succession of his political acts tended ultimately to accumulate in, and attach all powers to, a particular person or favorite family. if i wished to bestow on mr. jefferson this mass of patronage, which i contend this horde of officers bestows, i should be in favor of the bill that it is now moved to repeal; but, as a political person, i am no more for thomas jefferson than for john adams. when he acts, according to my opinion, right, i will support him; when wrong, oppose him; and i trust a majority on this floor will act in the same way. mr. tracy, of connecticut.--feeble as i am, i have thought it my duty to offer my sentiments on this subject. owing to severity of indisposition, i have not been in my place, nor have i heard any of the discussion. this circumstance will be my apology, if, in the remarks i shall make, repetitions shall occur on the one hand, and apparent inattention to arguments on the other. having been a member of this government during several years, and being impressed with the difficulties attending the formation of a judiciary system, i have thought proper to give a concise history of legislative proceedings on this important subject. permit me to say, sir, that the first institution of such a system must be an experiment. it is impossible to ascertain, until tried, the effects of a system co-extensive with the vast territory of the united states, and which ought to be adapted to the different laws and habits of the different states. soon after the first law was enacted, as early as the year , and i believe sooner, complaints were made of the system of circuit courts. the union then being divided into three circuits, and two of the six judges were obliged to attend each court, if one judge failed, all the business of course was continued to the next term. judges complained of the distance they had to travel, and suitors and lawyers complained of delays. in , if my memory is correct, the law passed allowing one judge to attend with the district judge in each district, with some other modifications not important in the present view of the subject. if, by reason of distance, badness of roads, sickness, or any other accident, this one judge failed of attendance, or if he and the district judge differed on any point, a delay was occasioned. if the same judge attended the same circuit at the next term, another delay, and so on, till experience taught us, that some alteration in the system was requisite. it will be recollected, that the judges had to travel over this extensive country twice in each year, and to encounter the extremes of both heat and cold. of this they complained; but this was not all; the business was not done. although this subject had been recommended before, and committees had contemplated a revision and alteration of the system, i do not remember that a bill had ever been presented to either house of congress until . in that session, a bill was reported similar in its features to the act which passed last session. it might have been acted upon in the house of representatives; of this, however, i am not confident; but i recollect it was printed, and the members of both houses had it before them; and at the last session, with some alterations and amendments, it was enacted into a law. i believe all parties wished for a revision and amendment of the system, in respect to circuit courts; the difference of opinion was principally this: some supposed an increase of the judges of the supreme court to such a number as would render the duties of the circuit practicable for them, and provide for the completion of business, would be the best amendment; the others thought the law, as it passed, was preferable. i acknowledge, that in deliberating upon this subject, we always assumed the principle, that the establishment of courts was important to protect the rights of the people; we did not fear an army of judges, as has been hinted by the gentleman last up, (mr. jackson.) in this opinion we might be mistaken, but we were honest in our professions. although some believed, that more of the business of the united states might be confided to the state courts; yet it is not within my recollection, that the question was considered, in any measure; a party question. i am confident, that at the session of , and for a long time before that, the friends of this law, which eventually passed last winter, could not, nor did not, contemplate any change of administration. a revision of the system was long a subject of deliberation; we believed an increase of circuit judges, to the number requisite to perform the duties, would be an inconvenient increase of the supreme court; and though it was desirable for the judges of the supreme court to see the people and be seen of them, yet the preference was given to the system now proposed to be repealed. we supposed it would be an evil to increase the number of judges of the supreme court to thirteen, fifteen, or seventeen. a court which is to act together, should not be numerous; on this subject, all men have agreed; here may be danger of an "army of judges," as the gentleman says; for although in great britain the twelve judges are sometimes called to give an opinion, yet no man will feel equal confidence in a tribunal of judges for the business of a court, consisting of many as of few; from three to five, the good sense and experience of all nations, has declared to be about the proper number; and we thought it conducive to the general good, to establish tribunals in such manner as to carry justice to the door of every man. is this system so very vicious, that it deserves nothing but abhorrence and destruction? it costs us a little more than thirty thousand dollars, and by it the number of circuit judges is increased to sixteen; and by it likewise is contemplated reducing the number of supreme judges to five, when it can constitutionally be done. is the expense an object, when by that expense, we extend the jurisdiction of a court over this vastly extensive, growing country, and carry law and protection to every man? this country is in a singular condition; a great tract of unsettled lands is peopling with rapidity, and numerous emigrations increase our population far beyond its natural increase; is it not of importance that courts should be located among them, early, to correct the restless spirit which is frequent in new and scattered settlements? and are not the emigrations composed of such as require the prompt assistance of the law, to preserve among them regularity? punishment, to us, and to all good men, should be a strange work; but to prevent crimes, is the work of a god. i speak to gentlemen, who have many of them graced the judge's bench, and adorned the professional robe they have worn, and am therefore not obliged to be particular that i may be understood; a word to the wise will be sufficient. a judiciary, in a national point of view, is absolutely necessary, and an extension of it to every national purpose, is equally necessary. to depend upon state courts, not under obligations, nor amenable to you, besides having as much business allotted to them by the respective states as they can accomplish, and depending, upon them, and not on us, for existence--will require only to be mentioned, to be exploded. locating your judges in various parts of the country, by them promulgating the national laws, which it is well known has been a subject of great difficulty, and giving them daily opportunity of mixing with people, not well disposed to order and law; may prevent disorders and insurrections, and save millions of expense, which pecuniary saving will be the least of the important events arising from such a system. but there is another objection to the repeal of the judiciary law, which in my mind is conclusive: i mean the letter and spirit of the constitution. in the formation of every government, in which the people have a share in its administration, some established and indisputable principles must be adopted. in our government, the formation of a legislative, executive, and judiciary power, is one of the incontrovertible principles; and that each should be independent of the other, so far as human frailty will permit, is equally incontrovertible. will it be expected, that i should quote sidney, de lolme, montesquieu, and a host of elementary writers, to prove this assertion? there is, probably, no conflict of opinion upon this subject. when we look into our constitution of government, we shall find, in every part of it, a close and undeviating attention to this principle. our particular form is singular in its requirements; that full force and operation be given to this all-important principle. our powers are limited, many acts of sovereignty are prohibited to the national government, and retained by the states; and many restraints are imposed upon state sovereignty. if either, by accident or design, should exceed its powers, there is the utmost necessity that some timely checks, equal to every exigency, should be interposed. the judiciary is established by the constitution for that valuable purpose. in the british government, the legislature is omnipotent to every legislative effect, and is a perpetual convention for almost every constitutional purpose. hence it is easy to discern the different parts which must be assigned to the judiciary in the two kinds of government. in england, the executive has the most extensive powers; the sword or the military force; the right of making war, and in effect the command of all the wealth of the nation, with an unqualified veto to every legislative act. it is, therefore, rational for that nation to preserve their judiciary completely independent of their sovereign. in the united states, the caution must be applied to the existing danger; the judiciary are to be a check on the executive, but most emphatically to the legislature of the union, and those of the several states. what security is there to an individual, if the legislature of the union, or any particular state, should pass a law, making any of his transactions criminal which took place anterior to the date of the law? none in the world, but by an appeal to the judiciary of the united states, where he will obtain a decision that the law itself is unconstitutional and void, or by a resort to revolutionary principles, and exciting a civil war. with a view to those principles, and knowing that the framers of our constitution were fully possessed of them, let us examine the instrument itself. article third, section first: "the judicial power of the united states shall be vested in one supreme court, and in such inferior courts as the congress may, from time to time, ordain and establish. the judges, both of the supreme and inferior courts, shall hold their offices during good behavior; and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office." are there words in the english language more explicit? is there any condition annexed to the judge's tenure of office, other than good behavior? of whom shall your judges be independent? we are led to an erroneous decision on this, as well as many other governmental subjects, by constantly recurring to great britain. that their courts should be independent of their sovereign, is an important object; he is the fountain of honor and power, and can do no wrong; our president, at least for several years past, has been considered as the fountain of dishonor and weakness, and if there was any maxim upon the subject, it was that he could do no right. of course the great object of the independence of the judiciary must here have reference not only to our executive, but our legislature. the legislature with us is the fountain of power. no person will say that the judges of the supreme court can be removed, unless by impeachment and conviction of misbehavior; but the judges of the inferior courts, as soon as ordained and established, are placed upon precisely the same grounds of independence with the judges of the supreme court. congress may take their own time to ordain and establish, but the instant that is done, all the rights of independence attach to them. if this reasoning is correct, can you repeal a law establishing an inferior court, under the constitution? will it be said, that although you cannot remove the judge from office, yet you can remove his office from him? is murder prohibited, and may you shut a man up, and deprive him of sustenance, till he dies, and this not be denominated murder? the danger in our government is, and always will be, that the legislative body will become restive, and, perhaps, unintentionally break down the barriers of our constitution. it is incidental to man, and a part of our imperfections, to believe that power may be safely lodged in our hands. we have the wealth of the nation at command, and are invested with almost irresistible strength; the judiciary has neither force nor wealth to protect itself. that we can, with propriety, modify our judiciary system, so that we always leave the judges independent, is a correct and reasonable position; but if we can, by repealing a law, remove them, they are in the worst state of dependence. wednesday, january . _the judiciary system._ the senate resumed the consideration of the motion made on the th inst. that the act of congress passed on the th day of february, , entitled "an act to provide for the more convenient organization of the courts of the united states," ought to be repealed. mr. mason, of virginia.--i feel some degree of embarrassment in offering my sentiments on a subject so fully and so ably discussed. i believe that the ground taken by my friend from kentucky has not been shaken by any arguments urged in opposition to the resolution on the table. yet as some observations have been made, calculated to excite sensibility, not here, but abroad; as they appear to have been made with a view to that end; and as an alarm has been attempted to be excited on constitutional ground, i think the observations ought not to go unnoticed. i agree with gentlemen, that it is important, in a well-regulated government, that the judicial department should be independent. but i have never been among those who have carried this idea to the extent which seems at this day to be fashionable. though of opinion that each department ought to discharge its proper duties free from the fear of the others, yet i have never believed that they ought to be independent of the nation itself. much less have i believed it proper, or that our constitution authorizes our courts of justice to control the other departments of the government. all the departments of a popular government must depend, in some degree, on popular opinion. none can exist without the affections of the people, and if either be placed in such a situation as to be independent of the nation, it will soon lose that affection which is essential to its durable existence. without, however, going into an inquiry of what kind of organization is most fit for our tribunals; without inquiring into the fitness of making the judges independent for life, i am willing to enter into a consideration, not of what ought to be, but of what is. whatever opinion i may individually entertain of the provisions of the constitution relative to the judiciary, sitting here under that constitution, i am bound to observe it as the charter under which we are assembled. when i view the provisions of the constitution on this subject, i observe a clear distinction between the supreme court and other courts. i am sensible that when we come to make verbal criticisms, any gentleman of a sportive imagination may amuse our fancies by a play upon words. but this is not the way to get rid of a genuine construction of the constitution. with regard to the institution of the supreme court, the words are imperative; while, with regard to inferior tribunals, they are discretionary. the first shall, the last may be established. and surely we are to infer from the wise sages that formed that constitution, that nothing was introduced into it in vain. not only sentences, but words, and even points, elucidate its meaning. when, therefore, the constitution, using this language, says a supreme court shall be established, are we not justified in considering it as of constitutional creation? and on the other hand, from the language applied to inferior courts, are we not justified in considering their establishment as dependent upon the legislature, who may, from time to time, ordain them, as the public good requires? can any other meaning be applied to the words "from time to time?" and nothing can be more important on this subject than that the legislature should have power, from time to time, to create, to annul, or to modify the courts, as the public good may require, not merely to-day, but for ever; and whenever a change of circumstances may suggest the propriety of a different organization. on this point, there is great force in the remark of the gentleman from georgia, that among the enumerated powers given to congress, while there is no mention made of the supreme court, the power of establishing inferior courts is expressly given. why this difference, but that the supreme court was considered by the framers of the constitution, as established by the constitution, while they considered the inferior courts as dependent upon the will of the legislature. if the arguments now urged be correct, that a court once established cannot be vacated, we are led into the greatest absurdities. congress might deem it expedient to establish a court for particular purposes, limited as to its objects or duration. for instance: the united states has taken possession of the mississippi territory, rightfully or not, i will not pretend to say. this territory has been heretofore in the hands of various masters, viz: france, england, spain, and georgia; and it is now possessed by the united states. all these governments, except the united states, made certain grants of lands in the territory, and certain settlers spread their conflicting patents over the country. these different titles will open a wide field for litigation, which will require able tribunals to decide upon. suppose, then, congress should establish special tribunals to continue for three, four, or five years, to settle these claims. judges would be appointed. they would be the judges of an inferior court. if the construction of the constitution now contended for be established, what would the judges say, when the period for which they were appointed expired? would they not say, we belong to inferior courts? would they not laugh at you when you told them their term of office was out? would they not say, in the language of the gentleman from new york, though the law that creates us is temporary, we are in by the constitution? have we not heard this doctrine supported in the memorable case of the mandamus, lately before the supreme court? was it not there said that, though the law had a right to establish the office of a justice of the peace, yet it had not a right to abridge its duration to five years; that it was right in making the justices, but unconstitutional in limiting their periods of office; that, being a judicial officer, he had a right to hold his office during life--or, what is the same thing--during good behavior, in despite of the law which created him, and, in the very act of creation, limiting his official life to five years. i may notice another case, more likely to happen, to show the absurdity of this construction. congress have assumed jurisdiction over the mississippi territory, and have established a court, composed of three judges, which court is as much an inferior court as the circuit or district courts. of this jurisdiction georgia denies the validity. the contest is in a train of settlement. suppose it shall turn out that the united states are convinced of the injustice of their claim, relinquish it, and restore the territory to georgia, what becomes of the judges? their offices, their duties, are gone! yet they will tell you, we are vested with certain constitutional rights, of which you cannot deprive us. it is true the territory is no longer yours. you have no jurisdiction, we have no power, yet we are judges by the constitution. we hold our offices during good behavior, and we will behave well as long as you will let us. is not this a strange situation? you have judges in a territory over which you have no jurisdiction; and you have officers which are perfect sinecures, pensioners for life. such an absurdity i am sure the constitution never meant to justify. it is an absurdity equally repugnant to the letter and genius of the constitution. but it would seem that the argument urged on this occasion, and the general course of our legislation, had been grounded more on the convenience and emoluments of those appointed to office, than on grounds of public utility. first, we appointed six judges of the supreme court, divided the united states into three circuits, two judges to ride each circuit, in which, with the district judge, to form a court. the law fixed the duties and the compensation, and gentlemen of the first character were ready to accept the places. the salaries indeed had been thought high; in some parts of the union they were thought enormous. but a little time passed before they complained of the hardships of their duties; and the law was altered, not so much for the public good as for their personal convenience. where two judges were required to hold a court, one was now declared sufficient. thus you continued their full salaries, while you lopped off half their duties. shortly after you assigned them, under the pension law, inconsiderable duties; and they refused to perform them. thus, while they showed themselves ready to abate of their duties, they adhered to their salaries. next came the law of last session, which takes away all their duties. it leaves them simply a court of appeals. and what have they got to do? to try ten suits; for such is the number now on their docket, as appears from a certificate just put into my hands; and the average number on their docket amounts to from eight to ten. thus, for the trial of the immense number of eight or ten suits, you have six judges, one with a salary of four thousand, and five others with salaries of three thousand five hundred dollars each. i fear, said mr. m., that if you take away from these judges that which they ought officially to do, they will be induced, from the want of employment, to do that which they ought not to do; they may do harm. they may be induced, perhaps, to set about that work gentlemen seem so fond of. they may, as gentlemen have told us, hold the constitution in one hand, and the law in the other, and say to the departments of government, so far you shall go and no farther. this independence of the judiciary, so much desired, will, i fear, sir, if encouraged or tolerated, soon become something like supremacy. they will, indeed, form the main pillar of this goodly fabric; they will soon become the only remaining pillar, and they will presently become so strong as to crush and absorb all the others into their solid mass. we, have been told, that no state in the union has presumed to touch the judiciary establishment, except the state of maryland. i will not answer for others; but, with respect to virginia, i will answer that she has touched it. her constitutional provision for the independence of the judges is nearly similar to that of the united states, and yet she has established, modified, and entirely put down particular departments of her system. notwithstanding the remarks of gentlemen, i am inclined to think these ideas of the extreme independence of the judges, and the limited powers of the legislature, are not very old, but that they are of modern origin, and have grown up since the last session of congress. for, in the law passed last session, that very law which it is now proposed to repeal, is to be found a practical exposition in direct hostility with the principle now contended for, which does not betray that sacred regard for the office of a judge, that is, on this occasion, professed: in that very law will be found a clause which abolishes two district courts. the words of the twenty-fourth section say, expressly, "the district courts of kentucky and tennessee shall be and hereby are abolished." will gentlemen tell this house how this express provision came into the act of the last session; and will they say, that though they voted for this law, yet no power exists in the legislature to abolish a court? it is true, that it has been said that, though you put down two district courts, you promoted the officers, by increasing their salaries and making them judges of the circuit courts; but the fact is, you have abolished their offices; they are judges no longer of the districts of kentucky and tennessee; and they are to every purpose, whatever may be their name, in reality circuit judges. though you have not lessened their salaries, you have deprived them of their offices. however, therefore, gentlemen may calculate as to the benefit or injury done these two judges, the principle is not affected by any result; their offices are gone. it is not enough to say, that though you destroyed their offices, you offered them others with higher salaries. you took away from them, in express terms, their offices, by abolishing the offices. you had stripped them of their offices, you had robbed them of their vested right, and then, to make friends, offered them a compensation; but whether the compensation thus offered for the deprivation they had suffered, was really equivalent to their loss, is a mere matter of calculation, and does not affect the constitutional principle. it is proper, however, to observe, that they were no parties to the proposed compromise, and that indeed they had no choice left them. they were obliged to accept of what you offered them, or have nothing. if they did not agree to become judges of the newly organized circuit courts, they could not remain judges of the district courts, for these courts were absolutely and completely abolished. by the seventh section of the law of the last session, which transforms the district into circuit courts, which melts down the judges and recoins them, it is enacted, that there shall be a circuit court, composed of one new circuit judge and two old district judges, to be called the sixth circuit. have you not then established a new office by the destruction of the old one? have you not done more? have you not violated the constitution, by declaring, by law, who shall fill this new office, though the constitution declares, article second, section two, "that the president shall nominate, and, by and with the advice and consent of the senate, shall appoint all officers which shall be established by law." where were these guardians of the constitution--these vigilant sentinels of our rights and liberties, when this law passed? were they asleep on their post? where was the gentleman from new york, who has, on this debate, made such a noble stand in favor of a violated constitution? where was the _ajax telamon_ of his party, or, to use his own more correct expression, the _faction_ to which he belonged? where was the hero with his seven-fold shield--not of bull's hide, but of brass--prepared to prevent or to punish this trojan rape, which he now sees meditated upon the constitution of his country by a wicked _faction_? where was hercules, that he did not crush this den of robbers that broke into the sanctuary of the constitution? was he forgetful of his duty? were his nerves unstrung? or was he the very leader of the band that broke down these constitutional ramparts? i shall now, sir, trouble you with a few remarks on the expediency of repealing this law. it has been said, that there is nothing peculiarly disgustful in this law; that there has been no public clamor excited against it; that it was enacted with solemnity, on calm and deliberate reflection; and that time has not yet been given to test it by experience. as no member, who has taken part in debate, was a member of this body when the law passed, i will say something of its history. i am not disposed to excite the sensibility of gentlemen, by any remarks which i shall make, or to call up unpleasant recollections of past scenes. but when i hear it said that this law was passed with calmness, after mature reflection, and that we are now, in a fit of passion, going to undo what was thus wisely done, i think it necessary that the public should have a correct statement. it is true, that under the last administration, when there existed (what i trust will never, in an equal degree, exist again,) an immoderate thirst for executive patronage, a proposition was made to establish a new judiciary system; a system worse than the present; as it proposed, according to my recollection, thirty-eight judges instead of sixteen. this law was very near passing. it was, however, rejected in the house of representatives by a very small majority. but it was circulated as a project of a law among the people. it was illy received. it was thought too rank a thing, and met with general disapprobation throughout the united states, so far as i have been able to learn. after this reception, it was softened down to the plan introduced at the last session. what temper accompanied the progress of the bill in the other house i know not, or, if i did know, would it be proper for me here to say? but with respect to the acts of this body, i am not of opinion they added any dignity to our common course of procedure. the bill was referred to a committee, who, although it was very long, reported it without any amendment. various amendments were offered, some of which were admitted to be proper. but they were not received. one, indeed, proposed by a member from connecticut, who was chairman of the committee, and was then hostile to the plan, did pass in the early stages of the bill, but on the third reading it was expunged. all amendments proposed by the minority were uniformly rejected by a steady, inflexible, and undeviating majority. i confess that i saw no passion, but i certainly did see great pertinacity; something like what the gentleman from connecticut had termed _a holding fast_. no amendments were admitted; when offered, we were told, no; you may get them introduced by a rider or supplementary bill, or in any way you please; but down this bill must go; it must be crammed down your throats. this was not the precise phrase, but such was the amount of what was said. i will say that not an argument was urged in favor of the bill, not a word to show the necessity or propriety of the change. yet we are told that there was great dignity, great solemnity in its progress and passage! but there is something undignified in thus hastily repealing this law! in thus yielding ourselves to the fluctuations of public opinion! so we are told!--but if there be blame, on whom does it fall? not on us, who respected the public opinion when this law was passed, and who still respect it; but on those who, in defiance of public opinion, passed this law, after that public opinion had been decisively expressed. the revolution in public opinion had taken place before the introduction of this project; the people of the united states had determined to commit their affairs to new agents; already had the confidence of the people been transferred from their then rulers into other hands. after this exposition of the national will, and this new deposit of the national confidence, the gentlemen should have left untouched this important and delicate subject--a subject on which the people could not be reconciled to their views, even in the flood-tide of their power and influence; they should have forborne, till agents, better acquainted with the national will, because more recently constituted its organs, had come into the government. this would have been more dignified than to seize the critical moment when power was passing from them, to pass such a law as this. if there is error, it is our duty to correct it; and the truth was, no law was ever more execrated by the public. let it not be said, postpone the repeal till the next session. no--let us restore those gentlemen to private life, who have accepted appointments under this law. this will be doing them greater justice, than by keeping them in office another year, till the professional business, which once attached to them, is gone into other channels. mr. stone, of north carolina.--before entering into an examination of the expediency of the repeal, it may be proper to remark, that gentlemen who have spoken against the repeal, whose talents and eloquence i highly admire, have not correctly stated the question. the true question is, not whether we shall deprive the people of the united states of all their courts of justice, but whether we shall restore to them their former courts. shall we, or shall we not, continue an experiment made, or attempted to be made, i will not say improperly, because my respect for this body and for my country, forbid the imputation; but i will say that the length of time we remained without this system, and the repeated ineffectual attempts made to establish it, present strong reasons for inferring that there are not those great apparent reasons in favor of it, that have been stated. a system somewhat similar to the present had been rejected by the legislature, because they preferred the former system. another evidence to the same purport is, that during the last session, when the subject was again revived, and the present plan adopted, an amendment was offered, to amend by extending and enlarging the former establishment. [here mr. s. read the amendment proposed, which augmented the number of judges of the supreme court, and assigned their circuits.] this amendment was rejected, and from the vote entered on the journal of that day, it appears that the difference of votes against the amendment was formed of those gentlemen who were nominated to appointments made vacant by the promotions under the new law. i do not state this circumstance as an evidence that these gentlemen were influenced by improper motives; but to show that the manner in which the new system was formed, was not calculated to establish, in the public mind, a decided preference of it over the old system. having made these remarks on the great deliberation said to have been manifested in the adoption of this plan, i hope i may be permitted to express my perfect coincidence with the gentleman from connecticut, that courts are necessary for the administration of justice, and that, without them, our laws would be a dead letter. but it appears to me essential to the due administration of justice, that those who preside in our courts should be well acquainted with the laws which are to guide their decisions. and, i apprehend, that no way is so much calculated to impart this knowledge, as a practical acquaintance with them, by attending courts in the several states, and hearing gentlemen who are particularly acquainted with them, explain and discuss them. it is, therefore, absolutely necessary, in my mind, that the judges of the supreme court, whose power controls all the other tribunals, and on whose decisions rest the property, the reputation, the liberty, and the lives of our citizens, should, by riding the circuit, render themselves practically acquainted with their duties. it is well known, that the knowledge of the laws of a state, is not to be suddenly acquired, and it is reasonable to conclude, that that knowledge is most correctly possessed by men whose whole lives have been devoted to the acquisition. it is also perfectly well known, that the knowledge of the modes and principles of practice in the different states, or of any state, is most effectually to be acquired in courts, where gentlemen of skill and experience apply those principles to use upon existing points. this defect, then, of the present plan, is, in my opinion, so radical, that, of itself, it would decide, with me, the question of expediency. to what source, then, shall we resort for a knowledge of what constitutes this thing, called misbehavior in office? the constitution, surely, did not intend that a circumstance so important as the tenure by which the judges hold their offices, should be incapable of being ascertained. their misbehavior, certainly, is not an impeachable offence; still it is the ground upon which the judges are to be removed from office. the process of impeachment, therefore, cannot be the only one by which the judges may be removed from office, under, and according to the constitution. i take it, therefore, to be a thing undeniable, that there resides somewhere in the government, a power to declare what shall amount to misbehavior in office, by the judges, and to remove them from office for the same, without impeachment. the constitution does not prohibit their removal by the legislature, who have the power to make all laws necessary and proper for carrying into execution the powers vested by the constitution in the government of the united states. but, says the gentleman from new york, the judges are officers instituted by the constitution, to save the people from their greatest enemies, themselves; and therefore, they should be entirely independent of, and beyond the control of the legislature. if such was the design of the wise men who framed and adopted the constitution, can it be presumed they would have provided so ineffectual a barrier, as these judges can readily be shown to be? it is allowed, on all hands, the legislature may modify the courts; they may add judges, they may fix the times at which the courts shall sit, &c. suppose the legislature to have interests distinct from the people, and the judges to stand in the way of executing any favorite measure--can any thing be more easy than for the legislature to declare that the courts, instead of being held semi-annually, or oftener, shall be held only once in six, eight, ten, or twenty years? or, in order to free themselves from the opposition of the present supreme court, to declare, that court shall hereafter be held by thirteen judges. an understanding between the president and the senate, would make it practicable to fill the new offices with men of different views and opinions from those now in office. and what, in either case, would become of this boasted protection of the people against themselves? i cannot conceive the constitution intended so feeble a barrier; a barrier so easily evaded. it is not alone the sixteen rank and file, which the gentleman from new york has so ludicrously depicted, that i apprehend immediate danger from, but it is the principle which converts the office of judge into a hospital of incurables, and declares, that an expiring faction, after having lost the public confidence, may add to those sixteen, until they become sixteen hundred or sixteen thousand; and that the restored good sense of the legislature, the whole government and constitution, retains no means of casting them off, but by destroying itself, and resorting to revolutionary principles. the legislature may repeal unnecessary taxes, may disband useless and expensive armies, may declare they will no longer be bound by the stipulations of an oppressive treaty; and if war should follow, the constitution is still safe. but if the construction which gentlemen contend for, be correct, a band of drones, to any amount in number, under the denomination of judges, may prey upon the substance of the people, and the government retains not the power to remove them but by destroying the constitution itself. thursday, january . _judiciary system._ the senate resumed the consideration of the motion made on the th instant, that the act of congress passed on the th day of february, , entitled "an act to provide for the more convenient organization of the courts of the united states," ought to be repealed. mr. olcott, of new hampshire, said this subject was of the most important kind, and though many able arguments had been already offered, he could not pass it over with a silent vote. it has been suggested that the act now proposed to be repealed, came in on the influx of passion, and that the influx of reason should sweep it away. he did not know that this was the case. some gentlemen contend that it was adopted with great deliberation. he thought the reasons for a repeal of this law insufficient. it is not said, that if the constitution vests a right to office in the judges, that we can affect them. he thought the constitution did vest the right, and he held it to be sacred. the provisions of the constitution appeared to him so plain, that they scarcely admitted of illustration. he who undertakes to explain the text, must find more explicit terms than those contained in it. he could not find any. after dwelling upon the different provisions of the constitution, mr. o. went upon the question of expediency, at some length, and concluded that a repeal was as inexpedient as unconstitutional. mr. cocke, of tennessee, followed mr. olcott. he said he was sorry gentlemen attempted to make quack doctors of them, by saying we may give a wound, but cannot heal it. he wished the senate to inquire whether the law now proposed to be repealed was constitutional or not. if it was not, we should act like honest men, acknowledge that we have violated the constitution, and restore it to its purity by repealing the law. let us recur to the journals of , and see what was the understanding of these champions of our liberties, and whether they have not since changed. the journals would prove that the judges were to mix with the legislature, were to be locked up in a closet, and to declare who was to be our executive magistrate. [mr. cocke here went into an examination of the arguments on the constitutional point.] we have been told that the nation is to look up to these immaculate judges to protect their liberties; to protect the people against themselves. this was novel, and what result did it lead to? he shuddered to think of it. were there none of these judges ready to plunge their swords in the american heart? he did not think it proper to be alarmed by the terrors held out. he wished to know no man; to take things as they are. but if gentlemen will attack, they must expect a reply. mr. cocke then dilated upon the several points of the discussion, and concluded with the expression of the hope that the legislature would repeal the law, and that they would not give way to the ideas of gentlemen, that the government was made for a chosen few, for the judges, to whom we are to look up for every thing. mr. morris.--mr. president, i had fostered the hope that some gentleman, who thinks with me, would have taken upon himself the task of replying to the observations made yesterday and this morning, in favor of the motion on your table. but since no gentleman has gone so fully into the subject, as it seems to require, i am compelled to request your attention. after these preliminary remarks, i hope i shall be indulged while i consider the subject in reference to the two points which have been taken, the _expediency_ and the _constitutionality_ of the repeal. in considering the _expediency_, i hope i shall be pardoned for asking your attention to some parts of the constitution, which have not yet been dwelt upon, and which tend to elucidate this part of our inquiry. i agree fully with the gentleman, that every section, every sentence, and every word of the constitution, ought to be deliberately weighed and examined; nay, i am content to go along with him, and give its due value and importance to every stop and comma. in the beginning, we find a declaration of the motives which induced the american people to bind themselves by this compact. and in the fore-ground of that declaration, we find these objects specified, "to form a more perfect union, to establish justice, and to ensure domestic tranquillity." but how are these objects effected? the people intended to _establish justice_. what provision have they made to fulfil that intention? after pointing out the courts which should be established, the second section of the third article informs us: "the judicial power shall extend to all cases in law and equity, arising under this constitution, the laws of the united states, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the united states shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming lands under grants of different states; and between a state, or the citizens thereof, and foreign states, citizens, or subjects. "in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the supreme court shall have original jurisdiction. in all the other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the congress shall make." thus then we find that the judicial power shall extend to a great variety of cases, but that the supreme court shall have only appellate jurisdiction in all admiralty and maritime causes, in all controversies between the united states and private citizens, between citizens of different states, between citizens of the same state claiming lands under different states, and between a citizen of the united states and foreign states, citizens, or subjects. the honorable gentleman from kentucky, who made the motion on your table, has told us that the constitution, in its judiciary provisions, contemplated only those cases which could not be tried in the state courts. but he will, i hope, pardon me when i contend that the constitution did not merely contemplate, but did, by express words, reserve to the national tribunals a right to decide, and did secure to the citizens of america, a right to demand their decision, in many cases evidently cognizable in the state courts. and what are these cases? they are those in respect to which it is by the constitution presumed that the state courts would not always make a cool and calm investigation, a fair and just decision. to form, therefore, a more perfect union, and to ensure domestic tranquillity, the constitution has said there shall be courts of the union to try causes, by the wrongful decision of which the union might be endangered or domestic tranquillity be disturbed. and what courts? look again at the cases designated. the supreme court has no original jurisdiction. the constitution has said that the judicial powers shall be vested in the supreme and inferior courts. it has declared that the judicial power so vested shall extend to the cases mentioned, and that the supreme court shall not have original jurisdiction in those cases. evidently, therefore, it has declared that they shall (in the first instance) be tried by inferior courts, with appeal to the supreme court. this, therefore, amounts to a declaration, that the inferior courts shall exist. since, without them, the citizen is deprived of those rights for which he stipulated, or rather those rights verbally granted, would be actually withheld; and that great security of our union, that necessary guard of our tranquillity, be completely paralyzed, if not destroyed. in declaring, then, that these tribunals shall exist, it equally declares that the congress shall ordain and establish them. i say they shall; this is the evident intention, if not the express words, of the constitution. the convention in framing, the american people in adopting, that compact, did not, could not presume, that the congress would omit to do what they were thus bound to do. they could not presume, that the legislature would hesitate one moment, in establishing the organs necessary to carry into effect those wholesome, those important provisions. the honorable member from virginia has given us a history of the judicial system, and in the course of it has told us, that the judges of the supreme court knew, when they accepted their offices, the duties they had to perform, and the salaries they were to receive. he thence infers, that if again called on to do the same duties, they have no right to complain. agreed: but that is not the question between us. admitting that they have made a hard bargain, and that we may hold them to a strict performance, is it wise to exact their compliance to the injury of our constituents? we are urged to go back to the old system; but let us first examine the effects of that system. the judges of the supreme court rode the circuits, and two of them, with the assistance of a district judge, held circuit courts and tried causes. as a supreme court, they have in most cases only appellate jurisdiction. in the first instance, therefore, they tried a cause, sitting as an inferior court, and then on appeal tried it over again, as a supreme court. thus, then, the appeal was from the sentence of the judges to the judges themselves. but say, that to avoid this impropriety, you will incapacitate the two judges who sat on the circuit, from sitting in the supreme court to review their own decrees. strike them off; and suppose either the same or a contrary decision to have been made on another circuit, by two of their brethren, in a similar case. for the same reason you strike them off, and then you have no court left. is this wise? is it safe? you place yourselves in the situation where your citizens must be deprived of the advantage given to them of a court of appeals, or else run the greatest risk that the decision of the first court will carry with it that of the other. the same honorable member has given us a history of the law passed the last session, which he wishes now to repeal. that history is accurate, at least in one important part of it. i believe that all amendments were rejected, pertinaciously rejected; and i acknowledge that i joined heartily in that rejection. it was for the clearest reason on earth. we all perfectly understood, that to amend the bill was to destroy it; that if ever it got back to the other house, it would perish. those, therefore, who approved of the general provisions of that bill, were determined to adopt it. we sought the practicable good, and would not, in pursuit of unattainable perfection, sacrifice that good to the pride of opinion. we took the bill, therefore, with its imperfections, convinced that when it was once passed into a law, it might be easily amended. we are now told, that this procedure was improper; nay, that it was indecent. that public opinion had declared itself against us. that a majority (holding different opinions) was already chosen to the other house; and that a similar majority was expected from that in which we sit. mr. president, are we then to understand that opposition to the majority in the two houses of congress, is improper, is indecent? if so, what are we to think of those gentlemen, who, not only with proper and decent, but with laudable motives, (for such is their claim,) so long, so perseveringly, so pertinaciously opposed that voice of the people, which had so repeatedly, and for so many years, declared itself against them, through the organ of their representatives? was this indecent in them? if not, how could it be improper for us to seize the only moment which was left for the then majority to do what they deemed a necessary act? let me again refer to those imperious demands of the constitution, which called on us to establish inferior courts. let me remind gentlemen of their assertion on this floor, that centuries might elapse before any judicial system could be established with general consent. and then let me ask, being thus impressed with the sense of the duty and the difficulty of performing that arduous task, was it not wise to seize the auspicious moment? among the many stigmas affixed to this law, we have been told that the president, in selecting men to fill the offices which it created, made vacancies and filled them from the floor of this house; and that but for the influence of this circumstance, a majority in favor of it could not have been found. let us examine this suggestion. it is grounded on a supposition of corrupt influence derived from a hope, founded on two remote and successive contingencies. first, the vacancy might or might not exist; for it depended as well on the acceptance of another, as on the president's grant; and secondly, the president might or might not fill it with a member of this house. yet, on this vague conjecture, on this unstable ground, it is inferred that men in high confidence violated their duty. it is hard to determine the influence of self-interest on the heart of man. i shall not, therefore, make the attempt. in the present case, it is possible that the imputation may be just, but i hope not, i believe not. at any rate gentlemen will agree with me, that the calculation is uncertain, and the conjecture vague. but let it now, for argument sake, be admitted, saving always the reputation of honorable men, who are not here to defend themselves. let it, i say, for argument sake be admitted, that the gentlemen alluded to acted under the influence of improper motives. what then? is a law that has received the varied assent required by the constitution, and is clothed with all the needful formalities, thereby invalidated? can you impair its force by impeaching the motives of any member who voted for it? does it follow, that a law is bad because all those who concurred in it cannot give good reasons for their votes? is it not before us? must we not judge of it by its intrinsic merit? is it a fair argument, addressed to our understanding, to say, we must repeal a law, even a good one, if the enacting of it may have been effected in any degree by improper motives? or is the judgment of this house so feeble, that it may not be trusted? let us, however, examine the clause objected to on the ground of the constitution. it is said, that by this law the district judges in tennessee and kentucky are removed from office, by making them circuit judges. and again, that you have by law appointed two new offices, those of circuit judges, and filled them by law, instead of pursuing the mode of appointment prescribed by the constitution. to prove all this, the gentleman from virginia did us the favor to read those parts of the law which he condemns, and if i can trust to my memory, it is clear, from what he read, that the law does not remove these district judges, neither does it appoint them to the office of circuit judges. it does indeed put down the district courts; but it is so far from destroying the offices of district judge, that it declares the persons filling those offices shall perform the duty of holding the circuit courts. and so far is it from appointing circuit judges, that it declares the circuit courts shall be held by the district judges. but gentlemen contend, that to discontinue the district courts, was in effect to remove the district judge. this, sir, is so far from being a just inference from the law, that the direct contrary follows as a necessary result; for it is on the principle that these judges continue in office after their courts are discontinued, that the new duty of holding other courts is assigned to them. but, gentlemen say, this doctrine militates with the principles we contend for. surely not. it must be recollected, sir, that we have repeatedly admitted the right of the legislature to change, alter, modify, and amend the judiciary system, so as best to promote the interests of the people. we only contend that you shall not exceed or contravene the authority by which you act. but, say gentlemen, you forced this new office on the district judges, and this is in effect a new appointment. i answer, that the question can only arise on the refusal of those judges to act. but is it unconstitutional to assign new duties to officers already existing? i fear that if this construction be adopted, our labors will speedily end; for we shall be so shackled, that we cannot move. what is the practice? do we not every day call upon particular officers to perform duties not previously assigned to, or required of them? and must the executive in every such case make a new appointment? but as a further reason to restore, by repealing this law, the old system, an honorable member from north carolina has told us, the judges of the supreme court should attend in the states, to acquire a competent knowledge of local institutions, and for this purpose should continue to ride the circuits. i believe there is great use in sending young men to travel; it tends to enlarge their views and give them more liberal ideas than they might otherwise possess. nay, if they reside long enough in foreign countries they may become acquainted with the manners of the people and acquire some knowledge of their civil institutions. but i am not quite convinced that riding rapidly from one end of this country to the other is the best way to study law. i am inclined to believe that knowledge may be more conveniently acquired in the closet than in the high road. it is moreover to be presumed that the first magistrate would, in selecting persons to fill these offices, take the best characters from the different parts of the country, who already possess the needful acquirements. but admitting that the president should not duly exercise, in this respect, his discretionary powers, and admitting that the ideas of the gentleman are correct, how wretched must be our condition! these, our judges, when called on to exercise their functions, would but begin to learn their trade, and that too at a period of life when the intellectual powers with no great facility can acquire new ideas. we must, therefore, have a double set of judges. one set of apprentice-judges to ride circuits and learn; the other set of master-judges, to hold courts and decide controversies. we are told, sir, that the repeal asked for is important, in that it may establish a precedent, for that it is not merely a question on the propriety of disbanding a corps of sixteen rank and file; but that provision may hereafter be made, not for sixteen but for sixteen hundred or sixteen thousand judges, and that it may become necessary to turn them to the right about. mr. president, i will not, i cannot presume, that any such provision will ever be made, and therefore i cannot conceive any such necessity; i will not suppose, for i cannot suppose, that any party or faction will ever do any thing so wild, so extravagant. but i will ask, how does this strange supposition consist with the doctrine of gentlemen, that public opinion is a sufficient check on the legislature, and a sufficient safeguard to the people? put the case to its consequences, and what becomes of the check? will gentlemen say it is to be found in the force of this wise precedent? is this to control succeeding rulers in their wild, their mad career? but how? is the creation of judicial officers the only thing committed to their discretion? have they not, according to the doctrine contended for, our all at their disposition, with no other check than public opinion, which, according to the supposition, will not prevent them from committing the greatest follies and absurdities? take then all the gentleman's ideas, and compare them together, it will result that here is an inestimable treasure put into the hands of drunkards, madmen, and fools. but away with all these derogatory suppositions. the legislature may be trusted. our government is a system of salutary checks: one legislative branch is a check on the other. and should the violence of party spirit bear both of them away, the president, an officer high in honor, high in the public confidence, charged with weighty concerns, responsible to his own reputation and to the world, stands ready to arrest their too impetuous course. this is our system. it makes no mad appeal to every mob in the country. it appeals to the sober sense of men selected from their fellow-citizens for their talents, for their virtue; of men advanced in life, and of mature judgment. it appeals to their understanding, to their integrity, to their honor, to their love of fame, to their sense of shame. if all these checks should prove insufficient, and alas! such is the condition of human nature, that i fear they will not always be sufficient, the constitution has given us one more: it has given us an independent judiciary. we have been told that the executive authority carries your laws into execution. but let us not be the dupes of sound. the executive magistrate commands indeed your fleets and armies; and duties, imposts, excises, and other taxes are collected, and all expenditures are made by officers whom he has appointed. so far indeed he executes your laws. but these, his acts, apply not often to individual concerns. in those cases so important to the peace and happiness of society, the execution of your laws is confided to your judges; and therefore are they rendered independent. before then that you violate that independence, pause. there are state sovereignties, as well as the sovereignty of the general government. there are cases, too many cases, in which the interest of one is not considered as the interest of the other. should these conflict, if the judiciary be gone, the question is no longer of law, but of force. this is a state of things which no honest and wise man can view without horror. suppose, in the omnipotence of your legislative authority, you trench upon the rights of your fellow-citizens, by passing an unconstitutional law. if the judiciary department preserve its vigor, it will stop you short. instead of a resort to arms, there will be a happier appeal to argument. suppose a case still more impressive. the president is at the head of your armies. let one of his generals, flushed with victory and proud in command, presume to trample on the rights of your most insignificant citizen: indignant of the wrong, he will demand the protection of your tribunals, and, safe in the shadow of their wings, will laugh his oppressor to scorn. this, sir, leads me to the second object i had proposed. i shall therefore pray your indulgence, while i consider how far this measure is _constitutional_. i have not been able to discover the expediency, but will now, for argument's sake, admit it; and here, i cannot but express my deep regret for the situation of an honorable member from north carolina. tied fast, as he is, by his instructions, arguments, however forcible, can never be effectual. i ought, therefore, to wish, for his sake, that his mind may not be convinced by any thing i shall say; for hard indeed would be his condition, to be bound by the contrarient obligations of an order and an oath. i cannot, however, but express my profound respect for the talents of those who gave him his instructions, and who, sitting at a distance, without hearing the arguments, could better understand the subject than their senator on this floor, after full discussion. the honorable member from virginia has repeated the distinction before taken between the supreme and the inferior tribunals; he has insisted on the distinction between the words _shall_ and _may_; has inferred from that distinction, that the judges of the inferior courts are subjects of legislative discretion; and has contended that the word _may_ includes all power respecting the subject to which it is applied, consequently to raise up and to pull down, to create and to destroy. i must entreat your patience, sir, while i go more into this subject than ever i supposed would be necessary. by the articles so often quoted, it is declared, "that the judicial power of the united states _shall_ be vested in one supreme court, and in such inferior courts as the congress _may_ from time to time establish." i beg leave to call your attention to what i have already said of these inferior courts. that the original jurisdiction of various subjects being given exclusively to them, it became the bounden duty of congress to establish such courts. i will not repeat the argument already used on that subject. but i will ask those who urged the distinction between the supreme court and the inferior tribunals, whether a law was not previously necessary before the supreme court could be organized. they reply, that the constitution says, there _shall_ be a supreme court, and therefore the congress are commanded to organize it, while the rest is left to their discretion. this, sir, is not the fact. the constitution says, the judicial power shall be vested in one supreme court, and in inferior courts. the legislature can therefore only organize one supreme court, but they may establish as many inferior courts as they shall think proper. the designation made of them by the constitution is, such inferior courts as the congress may from time to time ordain and establish. but why, say gentlemen, fix precisely one supreme court, and leave the rest to legislative discretion? the answer is simple: it results from the nature of things from the existent and probable state of our country. there was no difficulty in deciding that one and only one supreme court would be proper or necessary, to which should lie appeals from inferior tribunals. not so as to these. the united states were advancing in rapid progression. their population of three millions was soon to become five, then ten, afterwards twenty millions. this was well known, as far as the future can become an object of human comprehension. in this increase of numbers, with a still greater increase of wealth, with the extension of our commerce and the progress of the arts, it was evident that although a great many tribunals would become necessary, it was impossible to determine either on the precise number or the most convenient form. the convention did not pretend to this prescience; but had they possessed it, would it have been proper to have established, then, all the tribunals necessary for all future times? would it have been wise to have planted courts among the chickasaws, the choctaws, the cherokees, the tuscaroras, and god knows how many more, because at some future day the regions over which they roam might be cultivated by polished men! was it not proper, wise and necessary, to leave in the discretion of congress the number and the kind of courts which they might find it proper to establish for the purpose designated by the constitution? this simple statement of facts--facts of public notoriety--is alone a sufficient comment on, and explanation of, the word on which gentlemen have so much relied. the convention in framing, the people in adopting, this compact say the judicial power shall extend to many cases, the original cognizance whereof shall be by the inferior courts; but it is neither necessary, nor even possible now to determine their number or their form; that essential power, therefore, shall vest in such inferior courts as the congress may from time to time, in the progression of time, and according to the indication of circumstances, establish; not provide, or determine, but establish. not a mere temporary provision, but an establishment. if, after this, it had said in general terms, that judges should hold their offices during good behavior, could a doubt have existed on the interpretation of this act, under all its attending circumstances, that the judges of the inferior courts were intended as well as those of the supreme court? but did the framers of the constitution stop here? is there then nothing more? did they risk on these grammatical niceties the fate of america? did they rest here the most important branch of our government? little important, indeed, as to foreign danger; but infinitely valuable to our domestic peace, and to personal protection against the oppression of our rulers. no; lest a doubt should be raised, they have carefully connected the judges of both courts in the same sentence; they have said, "the judges both of the supreme and inferior courts," thus coupling them inseparably together. you may cut the bands, but you can never untie them. with salutary caution they devised this clause to arrest the over-bearing temper which they knew belonged to legislative bodies. they do not say the judges, simply, but the judges of the supreme and inferior courts shall hold their offices during good behavior. they say, therefore, to the legislature, you may judge of the propriety, the utility, the necessity, of organizing these courts; but when established, you have done your duty. anticipating the course of passion in future times, they say to the legislature, you shall not disgrace yourselves by exhibiting the indecent spectacle of judges established by one legislature removed by another. we will save you also from yourselves. we say these judges shall hold their offices; and surely, sir, to pretend that they can hold their office after the office is destroyed, is contemptible. the framers of this constitution had seen much, read much, and deeply reflected. they knew by experience the violence of popular bodies, and let it be remembered, that since that day many of the states, taught by experience, have found it necessary to change their forms of government to avoid the effects of that violence. the convention contemplated the very act you now attempt. they knew also the jealousy and the power of the states; and they established for your and for their protection this most important department. i beg gentlemen to hear and remember what i say: it is this department alone, and it is the independence of this department, which can save you from civil war. yes, sir, adopt the language of gentlemen, say with them, by the act to which you are urged, "if we cannot remove the judges we can destroy them." establish thus the dependence of the judiciary department, who will resort to them for protection against you? who will confide in, who will be bound by their decrees? are we then to resort to the ultimate reason of kings? are our arguments to fly from the mouths of our cannon? is there a member of this house, who can lay his hand on his heart, and say that, consistently with the plain words of our constitution, we have a right to repeal this law? i believe not. and if we undertake to construe this constitution to our purposes, and say that public opinion is to be our judge, there is an end to all constitutions. to what will not this dangerous doctrine lead? should it to-day be the popular wish to destroy the first magistrate, you can destroy him; and should he to-morrow be able to conciliate to him the popular will, and lead them to wish for your destruction, it is easily effected. adopt this principle and the whim of the moment will not only be the law, but the constitution of our country. the gentleman from virginia has mentioned a great nation brought to the feet of one of her servants. but why is she in that situation? is it not because popular opinion was called on to decide every thing, until those who wore bayonets decided for all the rest? our situation is peculiar. at present our national compact can prevent a state from acting hostilely towards the general interest. but let this compact be destroyed, and each state becomes instantaneously vested with absolute sovereignty. is there no instance of a similar situation to be found in history? look at the states of greece. they were once in a condition not unlike to that in which we should then stand. they treated the recommendations of their amphictyonic council (which was more a meeting of ambassadors than a legislative assembly) as we did the resolutions of the old congress. are we wise? so they were. are we valiant? they also were brave. have we one common language, and are we united under one head? in this, also, there was a strong resemblance. but, by their divisions, they became at first victims to the ambition of philip, and were at length swallowed up in the roman empire. are we to form an exception to the general principles of nature, and to all the examples of history? and are the maxims of experience to become false, when applied to our fate? some, indeed, flatter themselves that our destiny will be like that of rome. such, indeed, it might be, if we had the same wise but vile aristocracy, under whose guidance they became the masters of the world. but we have not that strong aristocratic arm, which can seize a wretched citizen, scourged almost to death by a remorseless creditor, turn him into the ranks, and bid him, as a soldier bear our eagle in triumph round the globe! i hope to god we shall never have such an abominable institution. but what, i ask, will be the situation of these states (organized as they now are) if, by the dissolution of our national compact, they be left to themselves? what is the probable result? we shall either be the victims of foreign intrigue, and split into factions, fall under the domination of a foreign power, or else, after the misery and torment of civil war, become the subjects of a usurping military despot. what but this compact--what but this specific part of it, can save us from ruin? the judicial power, that fortress of the constitution, is now to be overturned. yes, with honest ajax, i would not only throw a shield before it, i would build around it a wall of brass. but i am too weak to defend the rampart against the host of assailants. i must call to my assistance their good sense, their patriotism and their virtue. do not, gentlemen, suffer the rage of passion to drive reason from her seat. if this law be indeed bad, let us join to remedy the defects. has it been passed in a manner which wounded your pride, or aroused your resentment? have, i conjure you, the magnanimity to pardon that offence. i entreat, i implore you to sacrifice those angry passions to the interests of our country. pour out this pride of opinion on the altar of patriotism. let it be an expiatory libation for the weal of america. do not, for god's sake, do not suffer that pride to plunge us all into the abyss of ruin. indeed, indeed, it will be but of little, very little avail, whether one opinion or the other be right or wrong; it will heal no wounds, it will pay no debts, it will rebuild no ravaged towns. do not rely on that popular will, which has brought us frail beings into political existence. that opinion is but a changeable thing. it will soon change. this very measure will change it. you will be deceived. do not, i beseech you, in reliance on a foundation so frail, commit the dignity, the harmony, the existence of our nation to the wild wind. trust not your treasure to the waves. throw not your compass and your charts into the ocean. do not believe that its billows will waft you into port. indeed, indeed, you will be deceived. cast not away this only anchor of our safety. i have seen its progress. i know the difficulties through which it was obtained. i stand in the presence of almighty god, and of the world: and i declare to you, that if you lose this charter, never, no, never will you get another! we are now, perhaps, arrived at the parting point. here, even here, we stand on the brink of fate. pause--pause! for heaven's sake, pause! wednesday, february . the question was then taken on the final passage of the bill and determined in the affirmative--yeas , nays , as follows: yeas.--messrs. anderson, baldwin, bradley, breckenridge, brown, cocke, ellery, t. foster, franklin, jackson, logan, s. t. mason, nicholas, stone, sumter, and wright. nays.--messrs. chipman, colhoun, dayton, d. foster, hillhouse, howard, j. mason, morris, ogden, olcott, ross, sheafe, tracy, wells, and white.[ ] so it was _resolved_, that this bill pass, that it be engrossed, and that the title thereof be "an act to repeal certain acts respecting the organization of the courts of the united states, and for other purposes." saturday, april . the vice president being absent, the senate proceeded to the election of a president _pro tempore_, as the constitution so provides; and the honorable abraham baldwin was chosen. _ordered_, that the secretary notify the house of representatives of this election. on motion, it was _ordered_, that the secretary wait on the president of the united states, and acquaint him that the senate have, in the absence of the vice president, elected the honorable abraham baldwin their president _pro tempore_. monday, april . _relief to widows and orphans of naval and marine officers._ the senate resumed the third reading of the bill, entitled "an act for the relief of the widows and orphans of certain persons who have died, or may hereafter die, in the naval service of the united states." on motion to strike out the second section of the bill, to wit: "sec. . _and be it further enacted_, that if any commissioned or warrant officer of the navy, or commissioned officer of marines, have died, or shall hereafter die, by reason of wounds received while in the actual service of the united states, or have been lost at sea, or drowned, or shall hereafter be lost at sea, or drowned, while in the service as aforesaid, and in the actual line of his duty, and shall leave a widow, or if not, leave a child or children, under age, such widow, or such child, or children, as the case may be, shall be entitled to, and receive, the half of the monthly pay to which the deceased was entitled at the time of his death, and for and during the term of five years. and in case of the death or intermarriage of such widow, before the expiration of the said term of five years, the half pay for the residue of the term shall go to the child or children of such deceased officer under the age of sixteen years; and, in like manner, the allowance to the child or children of such deceased, in case there be no widow, shall be paid no longer than during the time there is a child or children under the age of sixteen years." it passed in the affirmative--yeas , nays , as follows: yeas.--messrs. anderson, baldwin, bradley, brown, clinton, cocke, dayton, t. foster, franklin, jackson, s. t. mason, ogden, olcott, stone, sumter, and wright. nays.--messrs. ellery, dwight foster, howard, j. mason, morris, nicholas, wells, and white. _georgia limits._ the following message was received from the president of the united states: _gentlemen of the senate, and of the house of representatives_: in pursuance of the act, entitled "an act supplemental to the act, entitled 'an act for an amicable settlement of limits with the state of georgia, and authorizing the establishment of a government in the mississippi territory,'" james madison, secretary of state, albert gallatin, secretary of the treasury, and levi lincoln, attorney general of the united states, were appointed commissioners, to settle by compromise, with the commissioners appointed by the state of georgia, the claims and cession to which the said act has relation. articles of agreement and cession have accordingly been entered into and signed by the said commissioners of the united states and of georgia, which, as they leave a right to congress to act upon them legislatively, at any time within six months after their date, i have thought it my duty immediately to communicate to the legislature. th. jefferson. april , . the message and documents therein referred to were read, and ordered to be printed for the use of the senate. tuesday, april . _state government for ohio._ the senate resumed the second reading of the bill to enable the people of the eastern division of the territory north-west of the river ohio to form a constitution and state government. on motion, section sixth, to strike out the following words, reported by the committee to be struck out, and which report was amended, as follows: "_provided_, that the convention of the said state shall, on its part, assent that each and every tract of land sold by congress, from and after the th day of june next, shall be and remain exempt from any tax laid by order or under authority of the state, whether for state, county, township, or any other purpose whatever, for the term of five years from and after the day of sale:" it passed in the negative--yeas , nays , as follows: yeas.--messrs. bradley, brown, dayton, dwight, foster, howard, j. mason, morris, ogden, olcott, tracy, wells, and white. nays.--messrs. anderson, baldwin, breckenridge, clinton, ellery, t. foster, franklin, jackson, logan, s. t. mason, nicholas, stone, sumter, and wright. on motion to strike out the words reported by the committee to be struck out of section sixth, and amended as follows: "_third._ that one-twentieth part of the net proceeds of the lands lying within the said state, sold by congress, from and after the thirtieth day of june next, after deducting all expenses incident to the same, shall be applied to the laying out and making public roads, leading from the navigable waters emptying into the atlantic to the ohio, or to the navigable waters thereof, and continued through the said state: such roads to be laid out under the authority of congress with the consent of the several states through which the road shall pass:" it passed in the negative--yeas , nays , as follows: yeas.--messrs. bradley, brown, dayton, dwight, foster, howard, j. mason, morris, ogden, olcott, tracy, wells, and white. nays.--messrs. anderson, baldwin, breckenridge, clinton, ellery, t. foster, franklin, jackson, logan, s. t. mason, nicholas, stone, sumter, and wright. on motion to strike out these words, reported by the committee to be struck out of the sixth section: "_second._ that the six miles reservation, including the salt springs, commonly called the scioto salt springs, the salt springs near the muskingum river, and in the military tract, with the sections of land which include the same, shall be granted to the said state, for the use of the people thereof, the same to be used under such terms, and conditions, and regulations, as the legislature of the said state shall direct, provided the said legislature shall never sell nor lease the same for a longer period than ten years:" it passed in the negative--yeas , nays , as follows: yeas.--messrs. brown, dwight foster, howard, j. mason, morris, ogden, olcott, and tracy. nays.--messrs. anderson, baldwin, bradley, breckenridge, clinton, dayton, ellery, t. foster, franklin, jackson, logan, s. t. mason, nicholas, stone, sumter, wells, white, and wright. and the bill being further amended, it was ordered to the third reading as amended. thursday, april . mr. s. t. mason presented the petition of david brown, of massachusetts, praying compensation for his sufferings while imprisoned under sentence of the judicial court, for seditious practices; and the petition was read, and ordered to lie on the table. friday, april . mr. tracy, from the committee to whom was referred, on the th instant, the bill to carry into effect a resolution of congress for erecting a monument to the memory of the late general david wooster, reported amendments; which were read, and ordered to lie for consideration. _case of john cleves symmes and his land purchase in ohio._ the senate resumed the consideration of the report of the committee on the petition of john cleves symmes, which was adopted, as follows: . that, in the year , the petitioner entered into a contract with the united states, upon a fair consideration, for the purchase of one million of acres of land in the north-western territory. . that, in consequence of such contract, the petitioner made a settlement upon the tract, and sold many parcels thereof to adventurers, who went together with him into that new country, and located themselves there. . that, in the year , the petitioner obtained a patent, under the authority of a law which enabled the president of the united states to make the same, for such proportion of the one million of acres, which had at that time been paid for, pursuant to the said contract, amounting to , acres of the said million of acres of land. . that the petitioner, after the said in part fulfilment of the contract on the side of both the parties to the same, proceeded to make sales (as he before had done in respect to the lands for which he had lately received the patent, as above mentioned) in the residue of the one million of acres, expecting to make the title when he should receive his patent thereof, agreeably to his contract, as he had before practised. . that no authority has been given by law, or otherwise, that can be found by your committee, whereby the said contract can be carried into execution on behalf of the united states, upon the payment of the sums further stipulated to be paid by the petitioner, agreeably to his contract, whereby he is entitled to a patent, upon payment of such stipulated sums; which payments the petitioner avers he always has been, and still is, ready to pay and perform, as thereunto required by his contract. . that your committee, from the papers and documents laid before them by the petitioner, or from the statement which he has made, do not perceive that the petitioner has done any one act, or omitted to do any act whereby he has forfeited any right to the full benefit of his contract before stated. . that no authority exists, by law, enabling any person to carry into execution the said contract on behalf of the united states; but, on the contrary, that two laws have been passed predicated upon the idea that the obligations of the united states, under the said contract, have ceased and determined; under the operation of which laws the said petitioner states, and your committee believe, that the said petitioner is suffering very great hardships, tending to the utter destruction and total waste of his whole property. . your committee, the premises considered, beg leave to recommend the adoption of the resolution accompanying this report: _resolved_, that the president of the united states be requested to direct the attorney general to examine into the contract entered into between the united states and john cleves symmes, esq., and others, bearing date on the th of october, , and all the contracts and laws relative thereto; and all the transactions which may legally or equitably affect the same, as far as they may come to his knowledge; and to make a report of the same to the senate at their next session, together with his opinion whether the said john cleves symmes has any claims, and what, upon the united states, in virtue of the said contract, or any other contract, or law predicated upon the same: and that the further consideration of the petition of said john cleves symmes, esq., of and concerning the premises, be postponed to the first day of the next session of congress. and the report was adopted. _ordered_, that the secretary lay this resolution before the president of the united states. the resolution of the house of representatives, authorizing the president of the senate and the speaker of the house of representatives to adjourn their respective houses on saturday the first day of may, was read. the bill, entitled "an act making appropriations for the military establishment of the united states in the year one thousand eight hundred and two," was read the third time and passed. the bill, entitled "an act making appropriations for the support of government for the year one thousand eight hundred and two," was read the third time. _resolved_, that this bill do pass as amended. the bill making an appropriation for the support of the navy of the united states, for the year one thousand eight hundred and two, was read the third time as amended. on motion to strike out the third section, agreed to yesterday, it passed in the affirmative--yeas , nays , as follows: yeas.--messrs. bradley, brown, dwight foster, howard, morris, nicholas, ogden, olcott, tracy, wells, white, and wright. nays.--messrs. anderson, baldwin, breckenridge, clinton, cocke, ellery, franklin, logan, s. t. mason, stone, and sumter. _resolved_, that this bill do pass with the amendments. the bill, entitled "an act to provide for the establishment of certain districts, and therein to amend an act, entitled 'an act to regulate the collection of duties on imports and tonnage, and for other purposes,'" was read the third time, and passed with an amendment. mr. bradley, from the committee to whom was referred, on the th and th instant, the petition of elijah brainard, also the petition of jonathan snowden, reported that the consideration of said petitions be severally postponed to the next session of congress, and that the committee to whom the same were referred be discharged, and the report was adopted. mr. s. t. mason, from the committee to whom was referred, on the th instant, the bill to incorporate the inhabitants of the city of washington in the district of columbia, reported amendments; which were read, and ordered to lie for consideration. on motion, it was _ordered_, that the bill for the better security of public money and property in the hands of public officers and agents, as amended by the house of representatives, be postponed to the next session of congress. mr. s. t. mason, from the committee to whom was referred, on the th instant, the bill additional to, and amendatory of, an act, entitled "an act concerning the district of columbia;" reported amendments which were read, and ordered to lie for consideration. monday evening, - / o'clock, may . _adjournment._ a message from the house of representatives informed the senate that the house have appointed a committee on their part, with such as the senate may appoint, to wait on the president of the united states, and notify him that, unless he hath any further communications to make to the two houses of congress, they are ready to adjourn, and they desire the appointment of a committee on the part of the senate. the senate took into consideration the resolution of the house of representatives appointing a committee, jointly, with such as the senate may appoint, to wait on the president of the united states and notify him of the proposed adjournment of the two houses of congress; and _resolved_, that they do concur therein, and that messrs. ellery and clinton be the committee on the part of the senate. mr. ellery, from the joint committee, reported that they had waited on the president of the united states, agreeably to the vote of the two houses, and that he informed them he had no further business to communicate. _ordered_, that the secretary notify to the house of representatives that the senate, having completed the business of the session, are ready to adjourn. a message from the house of representatives informed the senate that the house of representatives having completed the business before them are about to adjourn. whereupon, the senate adjourned to the first monday in december next. seventh congress.--first session. proceedings and debates in the house of representatives. monday, december , . this being the day appointed by the constitution for the annual meeting of congress, the following members of the house of representatives appeared, produced their credentials, and took their seats in the house, to wit: _from new hampshire._--abiel foster, george p. upham, and samuel tenney. _from massachusetts._--william eustis, john bacon, phanuel bishop, joseph b. varnum, richard cutts, lemuel williams, william shepard, ebenezer mattoon, nathan read, josiah smith, and manasseh cutler. _from rhode island._--thomas tillinghast, and joseph stanton, jr. _from connecticut._--roger griswold, samuel w. dana, john davenport, calvin goddard, benjamin tallmadge, elias perkins, and john c. smith. _from vermont._--israel smith. _from new york._--samuel l. mitchill, philip van cortlandt, theodorus bailey, john smith, benjamin walker, thomas morris, killian k. van rensselaer, lucas elmendorph, david thomas, and john p. van ness. _from new jersey._--john condit, james mott, william helms, henry southard, and ebenezer elmer. _from pennsylvania._--william jones, michael leib, john smilie, william hoge, isaac vanhorne, joseph heister, robert brown, henry woods, john a. hanna, john stewart, thomas boude, and joseph hemphill. _from delaware._--james a. bayard. _from maryland._--john archer, joseph h. nicholson, samuel smith, richard sprigg, john dennis, and thomas plater. _from virginia._--thomas newton, jr., john randolph, jr., george jackson, philip r. thompson, john taliaferro, john stratton, william b. giles, abram trigg, john trigg, anthony new, john smith, david holmes, richard brent, edwin gray, and matthew clay. _from kentucky._--thomas t. davis, and john fowler. _from north carolina._--nathaniel macon, willis alston, richard stanford, charles johnson, archibald henderson, and john stanley. _from tennessee._--william dickson. _from south carolina._--thomas sumter, thomas moore, and thomas lowndes. _from georgia._--john milledge. _from the north-west territory._--paul fearing. _from mississippi territory._--narsworthy hunter. a quorum, consisting of a majority, being present, the house proceeded, by ballot, to the choice of a speaker; and, upon examining the ballots, a majority of the votes of the whole house was found in favor of nathaniel macon, one of the representatives for the state of north carolina: whereupon, mr. macon was conducted to the chair, and he made his acknowledgments to the house as follows: "gentlemen: accept my sincere thanks for the honor you have conferred on me, in the choice just made. the duties of the chair will be undertaken with great diffidence indeed; but it shall be my constant endeavor to discharge them with fidelity and impartiality." the house proceeded, in the same manner, to the appointment of a clerk; and, upon examining the ballots, a majority of the whole house was found in favor of john beckley. the oath to support the constitution of the united states, as prescribed by law, was then administered by mr. griswold, one of the representatives for the state of connecticut, to the speaker; and then the same oath, or affirmation, was administered, by mr. speaker, to each of the members present. a message from the senate informed the house that a quorum of the senate is assembled, and ready to proceed to business; and that, in the absence of the vice president, they have elected the honorable abraham baldwin, president of the senate, _pro tempore_. _ordered_, that a message be sent to the senate to inform them that a quorum of this house is assembled, and have elected nathaniel macon, one of the representatives of the state of north carolina, their speaker, and are ready to proceed to business; and that the clerk of this house do go with the said message. the house proceeded, by ballot, to the choice of a sergeant-at-arms, doorkeeper, and assistant doorkeeper; and upon examining the ballots, a majority of the votes of the whole house was found in favor of joseph wheaton, as sergeant-at-arms, and, also, a unanimous vote in favor of thomas claxton, and thomas dunn, severally, the former as doorkeeper, and the latter as assistant doorkeeper. a message from the senate informed the house that the senate have appointed a committee on their part, jointly, with such committee as may be appointed on the part of this house, to wait on the president of the united states, and inform him that a quorum of the two houses is assembled, and ready to receive any communications he may think proper to make to them. mr. samuel smith, from the joint committee appointed to wait on the president of the united states, and notify him that a quorum of the two houses is assembled and ready to receive any communication he may think proper to make to them, reported that the committee had performed that service, and that the president signified to them that he would make a communication to this house, to-morrow, by message. tuesday, december . several other members, to wit: from pennsylvania, andrew gregg; from virginia, samuel j. cabell; from north carolina, james holland; and from south carolina, william butler; appeared, produced their credentials, and took their seats in the house; the oath to support the constitution of the united states being first administered to them by mr. speaker, according to law. a petition of john mcdonald, late of the city of philadelphia, was presented to the house and read, praying that he may be employed to superintend the arrangement and safe-keeping of the books intended for the library of the two houses of congress; and that he may receive such compensation for his services, in that capacity, as to the wisdom of congress shall seem meet. _ordered_, that the said petition be referred to the committee appointed yesterday, on the part of this house, jointly with the committee appointed by the senate, to take into consideration a statement made by the secretary of the senate, respecting books and maps purchased pursuant to a late act of congress, and to make report respecting the future arrangement of the same. the following committees were appointed pursuant to the standing rules and orders of the house, viz: _committee of elections._--mr. milledge, mr. tenney, mr. condit, mr. dennis, mr. hanna, mr. stanley, and mr. john taliaferro. _committee of revised and unfinished business._--mr. davenport, mr. clay, and mr. alston. _committee of claims._--john cotton smith, mr. gregg, mr. holmes, mr. mattoon, mr. john smith, of new york, mr. plater, and mr. moore. _committee of commerce and manufactures._--mr. samuel smith, mr. eustis, mr. dana, mr. mitchill, mr. jones, mr. newton, and mr. lowndes. _resolved_, that a standing committee of ways and means be appointed, whose duty it shall be to take into consideration all such reports of the treasury department, and all such propositions, relative to the revenue, as may be referred to them by the house; to inquire into the state of the public debt, of the revenue, and of the expenditures; and to report, from time to time, their opinion thereon. _ordered_, that mr. randolph, mr. griswold, mr. israel smith, mr. bayard, mr. smilie, mr. read, mr. nicholson, mr. van rensselaer, and mr. dickson, be appointed a committee, pursuant to the said resolution. wednesday, december . another member, to wit, john campbell, from maryland, appeared, produced his credentials, was qualified, and took his seat in the house. thursday, december . mr. elmendorph, from the committee to whom was referred, on the eighth instant, a letter from thomas claxton, the doorkeeper of this house, relative to certain expenditures, and further assistance necessary to be allowed for enabling him to execute the duties of his station, made a report; which was read and considered: whereupon, _resolved_, that thomas claxton be, and is hereby, authorized to employ, under his immediate direction, one additional assistant, two servants, and two horses, for the purpose of performing such services and duties as are usually required by the house of representatives, during the present session, and for four days thereafter; and the sum of five dollars and seventy-five cents per day be allowed to him for that purpose; and that he be paid therefor out of the fund appropriated for the contingent expenses of the house. a message from the senate informed the house that the senate have proceeded to the appointment of a chaplain to congress, on their part, and the rev. mr. gantt has been duly elected. friday, december . several other members, to wit: from new hampshire, joseph peirce; from massachusetts, peleg wadsworth; from virginia, thomas claiborne and john clopton; and, from north carolina, william h. hill, appeared, produced their credentials, were qualified, and took their seats in the house. monday, december . another member, to wit, lewis r. morris, from the state of vermont, appeared, produced his credentials, was qualified, and took his seat in the house. tuesday, december . _barbary powers._ the house resolved itself into a committee of the whole on the state of the union, the following resolution being under consideration: "_resolved_, that it is expedient that the president be authorized by law, further and more effectually to protect the commerce of the united states against the barbary powers." mr. nicholson said, that when this resolution was yesterday laid on the table, he had moved, for reasons that he had assigned, to strike out the words "further and more." he was, on reflection, more and more persuaded of the accuracy of his objections to the unqualified terms of the original motion. if we adopt it, we pledge ourselves to increase the naval force at present at the disposition of the president. but if his modification were agreed to, every gentleman would remain at liberty to put his own construction on the words "effectual force." uninformed as we were as to the necessity of increasing the force, it would be highly improper to commit ourselves by any precipitate decision. he, therefore, moved to strike out the words "further and more." mr. giles opposed the striking out the words, which, in his opinion, did not relate to the quantum of force placed under executive disposition, but to the measures proposed to be taken by the executive. he should vote for the motion unamended, though he had been, and still was, as averse as any gentleman in that house to an improper augmentation of the army or navy. with respect to the navy, he was friendly to it as it now stood, or to an augmentation of it to meet any particular emergency. mr. s. smith said that as he understood the resolution, it went not to pledge any man to augment the navy, but to authorize the president, with the present force, to take measures for the defence of our trade. we were at war with tripoli. against that power, therefore, the president felt himself at liberty to act efficiently. but gentlemen should advert to our situation with regard to algiers and tunis. those powers may become hostile. they may become so in the recess of congress. it may be necessary without delay to protect our trade against them. will you then confine the president, in relation to these powers, to a peace establishment? certainly, when these circumstances were duly weighed, no gentleman will refuse the power which this resolution is intended to confer. mr. smilie was in favor of the amendment for one reason. he was ready at all times to grant commerce every necessary protection. but by adopting this resolution, we pledge ourselves, without inquiring into the necessity, to extend further protection. no doubt further protection will be required. but he thought it premature to make any pledge until all the documents connected with the subject were before the house. mr. mitchill suggested the propriety of amending the original resolution by inserting after the word "law," "if necessary." this would render the resolution conditional. to the resolution he was a friend. for when the aspect and extent of the united states were considered, it must be evident to every man that we were a commercial people. the bulk and extensiveness of our produce required vessels to carry it to foreign countries. the carriage required protection. the government must of course give protection. with respect to the mediterranean expedition, no plan under the government had been better devised; and he had no hesitation to say, that if the mediterranean trade required further protection, he would be for making further appropriations of the public moneys. mr. nicholson said he could not agree to the suggestion of the gentleman from new york, as by adopting it we should do nothing. how does the matter now stand? congress has put into the hands of the president six frigates, which he had used for the public service in the mediterranean. this was not a fit time to express his opinion on the propriety of the measures of the executive. but when a fit occasion did offer, he would have no hesitation to say the president had done right. to return to the point--the president had now six frigates. if we agree to the resolution, do we not pledge ourselves to increase this force? one squadron had been sent to the mediterranean; another was in operation to go there, he understood. this was all right. but there followed no necessity from these circumstances to pledge ourselves to increase the force. we were not even acquainted with the sentiments of the president on this point. his communications did not inform us that he desired a larger force. if he did desire it, he would say so. he had, on the contrary, recommended a reduction of the army and navy; and to desire an augmentation of the latter, would be, in the same breath, to say one thing and mean another. mr. eustis.--the president, in his communications, has informed us that he has hitherto acted on the defensive. the simple question now is, whether he shall be empowered to take offensive steps. this has no relation, therefore, to an increase of the force; nor shall we, by adopting it, pledge ourselves to such effect. mr. giles was happy that the discussion was one more of words than of principles. he perfectly coincided with the gentleman from maryland, who had moved the amendment, in his general sentiments. it would be wrong in this house prematurely to pledge itself for an increase of naval force. but the words of the resolution do not relate to the quantum of force, but entirely to the measures to be taken with any force. when the president is authorized further and more effectually to protect our trade, it was not said that we will give him four or six additional frigates; but merely that he is to have means, more or less, which shall be adequate to make offensive operations against those who shall make offensive operations against us. it was well understood that he was for keeping the navy within proper bounds; but if ever there was a case where it was required, this was the case, and he acknowledged that he was for empowering the president to authorize not merely a dismantlement of a vessel, but her capture. the question was then taken on mr. nicholson's amendment and lost. when the original motion of mr. smith was carried. _ordered_, that a bill or bills be brought in, pursuant to the said resolution; and that mr. eustis, mr. samuel smith, mr. dana, mr. mitchill, and mr. jones, do prepare and bring in the same. wednesday, december . another member, to wit, benjamin huger, from south carolina, appeared, produced his credentials, was qualified, and took his seat in the house. _ratio of representation._ the house, according to the order of the day, proceeded to consider the first resolution reported yesterday from the committee of the whole house on the state of the union, in the words following, to wit: "_resolved_, that the apportionment of representatives amongst the several states, according to the second enumeration of the people, ought to be in a ratio of one representative for every thirty-three thousand persons in each state." mr. griswold remarked, that the effect of adopting this resolution would be an increase of members in that house; that the number would amount to nearly one hundred and fifty. he was of opinion that the present house was sufficiently numerous for every correct purpose, as well of legislation, as for obtaining all desirable information from the people. should an augmentation be made, the consequences would be an increase of expense, and business would inevitably be protracted. he moved, therefore, to strike out the words "thirty-three," meaning, if they were stricken out, to propose the substitution of a larger number. on this motion a desultory debate ensued, in which messrs. griswold, s. smith, nicholson, giles, bayard, alston, elmer, eustis, sprigg, and other gentlemen, took part. mr. griswold stood alone in advocating an apportionment of one member to every , persons. messrs. giles and bayard were for one member for every , . messrs. s. smith, nicholson, and eustis, were for one member for , . mr. alston was in favor of one representative for every , . the preferences avowed by the several speakers, appeared to arise from the application of that divisor to the state from which each member came, which left the least fraction. some gentlemen, however, declared, and particularly mr. giles, that he had made no calculation, and that his preference of the smallest ratio proposed was the preference of principle. those in favor of a small ratio argued that, though the expense attending the compensation of the members might be somewhat increased, yet that it would be trifling compared with the great advantages that would result from a larger representation; that such a representation would be productive of true economy, as it would oppose all extravagant expenditure of money; that the weight of expense incurred by the government, did not arise from the expense of the civil list, which formed but a speck in the mass of expenditure; that it was important to this government to adopt those measures which would ensure the respect and the confidence of the people; that this end would be best attained by each representative being familiarly acquainted with the interests of his constituents; and that this could only be the case when the number of his constituents were limited within certain bounds. it was true that it had been said that a body of more than one hundred, even though it be composed of philosophers, was a mob; but it was replied that the long experience of this country had proved the reverse, for that many of the state legislatures consisted of more members. these ideas were but feebly opposed. the diversity of opinion expressed chiefly arose from a division of the house on the ratios of thirty thousand and thirty-three thousand. the former was advocated principally from a regard to delaware and rhode island, which, by its adoption, would have each two representatives instead of one, if a higher ratio were preferred. during the discussion, it was moved to strike out the word "three;" leaving thirty thousand as the ratio. this motion was lost--yeas , nays . mr. bayard then moved to strike out "thirty-three," leaving the resolution blank, in order that it might be filled up with such number as should be agreeable to the house. this motion was opposed chiefly by mr. nicholson and mr. eustis, who were of opinion that the progressive increase of the members would be sufficiently large on the ratio of thirty-three thousand persons to a member. they were also further in favor of this number as it left the fewest fractions. the only two states much injured by it would be delaware and north carolina; whereas, if the ratio was increased to thirty-five thousand, new jersey would have a fraction of , ; delaware of , ; maryland of , ; georgia of , ; and kentucky of , . on the question being taken for striking out "thirty-three," there rose only thirty-one members. it was therefore declared to be lost. the question was then taken on the original motion, and carried without a division, and a committee of three members appointed to bring in a bill conformably thereto. thursday, december . another member, to wit, daniel heister, from maryland, appeared, produced his credentials, was qualified, and took his seat. friday, december . _public printing._ mr. randolph, chairman of the committee appointed to see what alterations were necessary to expedite the printing business of the house, reported that the committee thought it expedient to request the heads of the departments to attend and inspect the printing of all such documents, reports, and statements, as are directed by law to be annually laid before the house; and that it was necessary that a printer to the house be appointed, who shall be responsible for the faithful and prompt execution of all business confided to him by order of the house. mr. griswold wished the report altered to a resolution; to the first part of it he should agree, but doubted whether the latter part would be concurred in. he did not think it sufficient or expedient to appoint but one; the business would require more, particularly at the close of the session. he could see no reason for altering the mode in which the printing business was now and had ever been done; it now lies with the clerk, who is empowered to employ as many persons as he pleases or deems expedient. if such printer should be appointed, he will become an officer of the house; he will not be responsible to the speaker. we have officers enough already; it is needless to multiply. mr. randolph said, the committee had considered these objections; but, he believed, sufficient reasons might be offered to convince the house of the expediency of this measure. if one be appointed, he will know his duty and be prepared; he will employ as many hands as he wishes. had there been one appointed by the house last session, he would have been on the spot now, fully prepared promptly to execute the orders of the house; nor should we have such delay as that by which we are now unfortunately troubled. mr. nicholson.--we have but few printers in this vicinity, nor is it probable their number will be soon increased. the printing for the house is said to be worth $ , per annum; if one be appointed for that purpose, he will have every thing in readiness, and be responsible for his faithful duty. mr. s. smith thought a printer thus appointed might perform a considerable part of his duty previous to each session; to many documents he might attend. mr. s. wished such printer appointed as a permanent officer. mr. lowndes.--if he thought such officer necessary he should not oppose the measure, but at present he did not think such appointment necessary. he conceived the clerk to be responsible to the house; that it was his duty to attend to the printing; that he could employ whom and as many as he pleased. whence, then, the necessity of such appointment? besides, such printer will become an officer of this house, must have a salary, and will be called the printer of the house: and, if printer of a paper, whatever sentiments might be advanced in such paper would perhaps be considered as the sentiments of the house. mr. eustis considered it altogether unnecessary, disadvantageous, and troublesome. the first was carried: that relating to the appointment of a printer not carried; about twenty only rising in favor of it. _apportionment bill._ the house resolved itself into a committee of the whole on the bill for the apportionment of representatives among the several states, according to the second enumeration. mr. macon (speaker) moved to strike out "thirty-three," the ratio fixed by the bill, for the purpose of inserting "thirty." mr. m. observed that it did not appear, from the different ideas expressed by different gentlemen, that any material inconvenience would result from the increased number of members that would be created by the ratio of thirty thousand being adopted. whereas on the ground of principle a great benefit would flow from it. in his opinion, to secure the confidence of the people in the government, it was essential to lessen the districts as much as possible, that the elector might know the elected. at present, particularly in north carolina, they were so large that a voter depended more upon the opinions of others than upon his own information. the ratio of thirty thousand would not introduce into the house more than one hundred and sixty members, which number did not equal that of the members in several of the state legislatures, of which no complaints had been made, and from which no inconvenience had arisen. he felt particularly for delaware, which would be severely affected by the ratio in the bill. mr. giles hoped the motion would obtain. as far as respected the state of virginia, he felt little or no anxiety. but he, on general principles, preferred the smallest ratio. it was an essential principle of a republican government that the people voting should know whom they vote for; that the elector should be well acquainted with the elected. to ensure this effect the districts should be small. he was aware of the impossibility of reaching this point precisely: but it was our duty to approach it as nearly as possible. though, in relation to the situation of delaware, he did not subscribe fully to the ideas of some gentlemen, as the case was an extreme one, and he knew the impropriety of relying upon such cases, as the reasoning from an extreme generally led to an extreme, yet he thought the relative circumstances of delaware and virginia, as stated, to be correct; for it was a fact that virginia, entitled to twenty-two representatives, was not so much affected by any given fraction, as delaware, entitled to but one representative. but the reply to the inequality of her representation here is, that she has two representatives in the senate; and it is inferred that she will hence derive a larger weight in the union. such was the theory of the thing. but what was the result of experience? mr. g. said, he had once supposed that the small states would have an undue advantage over the large states. his opinion had since altered. all the small states were surrounded and compressed by large states, and derived their political sympathies from them. it was true, the small states had each two votes in the senate. yet, what superior advantage have they in the government generally? he was, therefore, clearly of opinion that the claims of the small states to the largest representation that could be constitutionally given them, ought not to be affected by their representation in the senate. the fact was that this house was the basis of confidence in the government. we had heard much about an alarm, about disorganization, and the disposition of large states to swallow up the rights of all the other states. he would ask, whether the adoption of a large ratio would lessen this clamor, promote the general confidence, and increase the stability of the government? mr. jones hoped the amendment would prevail. there was not a doubt but that the small states would be materially affected by the ratio in the bill. it was true, that, according to the theory of our government, the members of that house did not represent the states. but, what was the fact? in truth, our representation was that of absolute locality. can i, said mr. j., represent as effectually massachusetts, or vermont, as pennsylvania? mr. van ness declared himself to be uninfluenced by local considerations, or particular inconveniences. if we attempted to avoid them by the adoption of any ratio, we should be mistaken. the inequality of states could not be remedied. if a remedy was sought, it must be found in the senate. the large states had not that exclusive weight which had been stated. if the number of the large states in this house should overbear the smaller states, they would find their protection in the senate. the fractional loss, so much dwelt on, was not a loss to the state, it was only a loss to that part of the state which was unrepresented, and the loss would be the same to a larger state, if its unrepresented fraction was equally great. mr. v. n. said, it had always been his desire to consult the wishes of the people and to conform to them. he considered those wishes as solemnly expressed in the constitution, which had decided that the ratio should not be less than thirty thousand, and in the law passed immediately after the adoption of the constitution, fixing the ratio at thirty-three thousand. as to the experience of the state, so often appealed to, he would state that of his own. the constitution of new york originally fixed the representation in one branch at three hundred, and in the other at one hundred and fifty. after suffering the inconveniences of so large a legislative body, a convention had been called, which reduced the one branch to one hundred and fifty, and the other to thirty-two members. it was the opinion of some gentlemen that the essential principle of our government was the equal representation of the states in the senate. this was a mistaken opinion. the federalism of the government might have been as well preserved by an unequal representation in the senate. the feature was not the offspring of principle, but of concession. if we looked to antiquity, we would observe the smaller states of a confederation always inferior to the larger; and he recollected one case of a confederation, in which one state was entitled to three, another to two, and the third to one representative. mr. smilie heartily concurred in opinion with the gentleman from new york, that we ought not to respect local feelings, but that we ought to go upon general grounds. possessing these principles, we still know how difficult it is to do complete justice. for himself he would be satisfied with the ratio of thirty-three, if he could not obtain that of thirty thousand. he was in favor of a large representation, because he relied on that for safety and economy. for, when he considered the great powers of the other branches of the government, (powers, in the opinion of some men, too great,) he thought it was their duty to impart to that house all the constitutional power that could be conferred. this would enable the house to resist all encroachments attempted to be made upon it. mr. bacon said that, for himself, he was satisfied with the present ratio, as it stood in the bill. this was the ratio which had been adopted when our numbers were much less than they now are; that it did not appear but that it had given general satisfaction; and that no other inconveniences had accrued than such as might be expected to follow from the adoption of any other ratio whatever. it would seem to be rather unnatural, and the reverse of what was contemplated by those who enacted the constitution, as our numbers increase, to lessen the ratio of representation. he was, therefore, against striking out the number thirty-three, with a view to insert a lower number. a divisor of thirty-three thousand would now give a house consisting of at least one hundred and forty members, which, even on the present ratio, must soon become not only too expensive, but unwieldy. it had been repeatedly urged that the present ratio leaves a very large fraction to the state of delaware. this, it was admitted, was matter of regret; but that, let what ratio might be adopted, such fractional parts must be expected to fall somewhere; that such fractions would be likely to vary, from time to time, and shift from state to state, as the population may increase and vary in the several states. and mr. b. did not conceive that the particular case of delaware, hard as it might seem, furnished a sufficient reason for altering an entire system. as to what had been urged of the disadvantage to which electors were subjected in large districts, of not knowing the characters of their representatives and candidates, mr. b. observed that this was a disadvantage which was lessening with rapidity from year to year, and from one election to another; that to whatever inconvenience electors may heretofore have been subjected by the want of a knowledge of their candidate, from this inconvenience they are already in a great measure relieved; and it must, in a very short time, entirely cease to exist. if any inconvenience of this kind still remains, by an election or two more, it would be entirely removed. it had been urged that delaware had but one representative, and every state ought to have two. but, why two, mr. b. queried, rather than three? it is true, that two are better than one; and three are better than either one or two; for, as we have long since been told, "a three-fold cord is not easily broken." mr. b. concluded by saying that, as thirty-three thousand was the ratio which had been adopted when our population was much less than it now is; and as it has been practised upon without any inconvenience or general dissatisfaction, he was unwilling to risk the uncertain consequences of an innovation at this particular time. mr. t. morris was of opinion that the arguments drawn from the representation in the senate had nothing to do with this question. the house had a constitutional duty to perform, that was highly interesting. the only question is, how it shall be performed? the people ought to be fully represented; that is, the number of their representatives should be increased until that number became inconvenient for the transaction of business. he had never been a friend to an enormous legislature; such as that in france, a mob convention. he thought the idea incorrect that this house should acquire a weight that might cause it to bear down the other branch of the legislature. he hoped, if any such attempt should be made, that body would have sufficient spirit to resist it; and he trusted there would always be firmness enough here to resist any encroachment attempted. as to the present ratio guiding, he did not think that the house should be governed by any uniform rule. they ought, on the contrary, to be governed by the existing circumstances. not believing that any inconvenience would arise from the augmented representation on the ratio of thirty thousand, he would be in favor of it from the reasons he had assigned. mr. dennis did not rise to say any thing new on the subject; but merely, as he had altered his mind since the business was before the house, to assign some of the reasons which had influenced him. he was now in favor of the ratio of thirty thousand. his first impressions were against it from an apprehension that the increased numbers of the house would increase expense, and produce disorder. but he acknowledged himself convinced by the arguments which had fallen from the gentleman from virginia, which he thought counterbalanced his previous apprehension. mr. d. thought it all-important to preserve an equilibrium between the different departments of the government, and he was convinced that this would be best effected by making the representation in this house as large as the constitution permitted, and convenience justified. if we expected to retain the confidence of the people, it was necessary to increase the representative branch; for it would be in vain to look for that confidence necessary to give it a proper portion of energy, unless there existed a sympathy between the elector and the elected. mr. randolph hoped the amendment would not obtain. the difference between the effects of the two ratios was not very important; but it was highly important that a doctrine so heretical and improper as that which had been avowed, should be exploded on its first annunciation. he meant that doctrine which considered this house as the representatives of the people. when the constitution was formed, two great difficulties presented themselves. the large states refused to confer on the government greater powers than those it enjoyed, which deeply affected their wealth and their numbers, unless, according to the ratio of their numbers, they should participate in the administration of it; while the smaller states withheld their concurrence, unless their sovereignties were guarantied and protected. these two difficulties were surmounted by the plan of the present constitution; according to which the members of this house were the representatives, not of the people, but of the states in proportion to their numbers. this was the theory of the government for which he must contend. mr. r. believed that the strongest objection urged against the adoption of the constitution, was, that it tended to a consolidation of the states. but when he looked into it with a federal eye, (and with no other eye could he ever look at it,) he saw the state sovereignties in all its parts acknowledged and protected. of this, the very bill was itself a proof. for the apportionment was not among the people, but among the states, according to the numbers of each. believing that this house is the representative of states, it was his opinion that so long as the relative weight of states could be preserved, it was immaterial that each state should be represented by a large number of members. it was with extreme regret, and some diffidence, mr. r. said, that he differed from his colleague on this subject. his colleague wished to increase the house to such an extent as to make it the depository of the whole confidence of the people. mr. r. wished it to possess that confidence so far as related to federal objects, but no further. increase it, according to the theory of gentlemen, make it in point of numbers, a british parliament, or a french convention, and you will proportionably diminish the confidence of the people in the state governments. they will become feeble barriers against the powers of the general government; and the people will inquire for what purpose they elect their state legislatures. mr. r. believed it to be of infinite importance that the poises of the government should be preserved; that it should confine itself to federal objects. his object, therefore, was to preserve on that floor the proportionate weight between the several states which the constitution had fixed. had any objection been made to the old congress under the confederation, that was federally organized, for the want of talents or integrity? no. the only objection was, that they wanted power. had the public affairs been conducted with less ability than they are at present? he had neither heard, nor did he believe that they had. mr. r. concluded, by making some remarks on the score of convenience, similar to those already stated. mr. mitchill, in a speech of some length, supported the ratio of thirty thousand. mr. s. smith felt indifferent whether the ratio of thirty-three, or that of thirty thousand, were adopted; but felt anxious that justice should be done to the state of maryland. he understood that radical errors existed in the numbers given to that state; that in harford county there were returned only three thousand slaves, whereas there ought to have been returned eighteen thousand; and that in cecil there had been returned nine thousand, instead of fifteen thousand. he hoped, in order to have these errors corrected, the committee would rise, that the original returns in the office of state might be examined. this motion gave rise to a conversation of some length, in which on one side the impropriety and injustice of making an apportionment under the existing errors, and without the return from tennessee, were argued; and, on the other side, the great inconvenience of delay, and the inability of the house to obtain a correction of errors, which, if attempted in one instance, might be attempted in many. mr. van ness informed the committee that the return from tennessee was received at the office of state, and that it made the population of that state amount to ninety-two thousand free inhabitants, and thirteen thousand slaves. it was ultimately agreed that the committee rise, report progress, and ask leave to sit again; which was granted. monday, december . _georgia limits, and delegate from mississippi._ the house resolved itself into a committee of the whole house on the report of the committee of elections, to whom were referred the credentials of narsworthy hunter, who has appeared as a delegate from the territory of the united states known by the name of the mississippi territory. mr. milledge spoke forcibly, and with considerable eloquence against agreeing to the report of the committee; he said it was not a matter of private but of general concern--that georgia had jurisdiction over that territory; to prove this, he called for the reading of the memorial of georgia to the legislature of the union. [the memorial was extremely long, and was read but in part.] mr. m. insisted on the right of georgia to the soil; he would assert to that body and to the world that she had never given up that right; and that therefore the laws that had been passed by congress for the government of that territory were void, and the gentleman elected as a delegate to congress by the legislature of that territory had no right to a seat in the house. gentlemen might say what they please of the expediency of congress making laws for the government of that territory, yet that expediency must yield to justice and to just claims; depriving georgia of her command over that soil and over the people of that soil, was a glaring violation of right. commissioners had been appointed to settle the dispute between the united states and georgia; those commissioners are here, and probably it will not be long before those claims are adjusted; he hoped and trusted no farther proceedings would take place till the dispute was completely settled. mr. bayard.--the gentleman from georgia appeared to mistake the object of the report of the select committee; that committee was appointed to examine the credentials of mr. hunter, and to see whether the legislature of the mississippi territory had a right, by the law of congress regulating that government, to send a delegate, to exercise here the right of debating, but not of voting; it was not to admit into the union a new state, or to erect a new state within the bounds of another. the law of congress, establishing the government of that territory, declares that when in that territory there shall be such a number of inhabitants, they shall have a house of representatives and a legislature; and that when their inhabitants shall have increased to such a number, the legislature may appoint a delegate to congress, with the right of debating, but not of voting. it is not now a question whether a new state shall be erected, but whether this member be duly chosen. nor are the interests of georgia at all affected: the fifth section of the law establishing this government expressly declares that nothing in the law for establishing a temporary government there, shall in any manner affect any claims of the state of georgia to that soil. commissioners are appointed on the part of the united states and georgia to settle the dispute between the two governments; but till those disputes shall be settled, shall the inhabitants of that territory be without a government? no, sir, it is not a matter of discretion with us; we are bound by a positive law of congress. if the gentleman was urgent against mr. hunter's taking his seat, the only way to effect it is, by repealing the law of congress establishing the government of the mississippi territory. mr. davis.--the house have no business to meddle, in this case, with the claims of the united states, or of georgia, to that territory; we have only to examine the credentials of the member, and to see whether the legislature, in conformity to the act of congress, were authorized, or not, to send a delegate. if that act of congress be unconstitutional, it must be repealed by the senate and house; yet, as it now is, we are bound to but one decision on this subject. mr. randolph.--he thought gentlemen did not treat the member from georgia with due candor and respect. it should be remembered that georgia had ever protested against the laws relative to the mississippi territory. it was the duty of that gentleman, as a member from the state of georgia, to dissent; constructions might be put on silence. the united states had arrogated the power of governing that territory, at the same time saying that such assumption of power should not affect any claims of georgia; but did not this very assumption of a right to govern, prejudge claims? we are told the commissioners are on the eve of settling the dispute; let us wait till this be accomplished. mr. r. motioned that the committee rise. mr. claiborne.--he thought it right in the gentleman from georgia to dissent; it was to be expected; he did not rise to censure him. he did not conceive that any gentleman in the house wished, in this matter, to do any thing that would prejudice the interest or claims of georgia. the assumption of a power to give laws to the mississippi territory arose from the necessity of the thing, and from benevolence to the inhabitants; he would not suffer an infraction of the constitution for the world; no, not to save a world. [the chairman called him to order: the question was now on the committee's rising.] mr. c. said he did not know but he might be out of order, but if he was, he believed others had been in the same situation. he wished to express his opinions on the subject in common with others. it should be considered that the delegate from the mississippi territory would have no right to vote, but only to debate; he would be only a sting, but without poison. we ought, moreover, to oblige our brethren of that southern hemisphere; we ought to hear their statements, attend to their wants, &c. mr. dana.--he was for the committee's rising. it had been usual to suffer the reports of the committee of elections to lie on the table, and if no protest or complaint were entered, nothing further was done with them, and the members kept their seats. in the case of the north-western and indiana territories, they were obliged to inquire, if it was the first time, whether there was a right to send a delegate; such is the situation now of the member from the mississippi territory; the records show their right to send, the report states that this delegate is duly chosen. let the report lie on the table, and the member keep his seat. mr. griswold.--he was not in favor of the committee's rising. it was extremely unpleasant to the delegate from the mississippi territory to remain in this situation; he himself claimed a seat in that house, not as a matter of favor but of right; and this house had not the power of depriving him of this right, without repealing the act of congress establishing a government over that territory. some gentlemen have said that the rights of georgia will be affected by the admittance of this member to a seat; such certainly could not be the case; if the claims of georgia are at all affected, it is done already by act of congress; yet, for his part, he did not consider the claims of georgia as affected or injured. nor ought we to wait the decision of the commissioners: that decision may take place in a month, and perhaps will not these six months. mr. macon.--there ought to be some petition or statement of facts presented by the member from georgia, or some other person, to justify a discussion at this time, or to prevent the delegate from taking his seat. he wished his right and his credentials treated as those of any other member. he agreed with the gentleman from connecticut, (mr. dana,) that it were better for the committee to rise, without leave to sit again; the member would then be entitled to his seat and his pay, till it should be shown that he has no claim to them. mr. bayard.--he did not agree with the speaker; the face of the report of the select committee gives sufficient cause for a decision of the committee of the whole. the gentleman from georgia opposes the decision of the select committee; and it is due to the member from georgia, and to the delegate, to have the opinion of the house--to have a prompt decision. the mere question is, whether he has been duly elected; not whether the legislature of the mississippi territory had a right to elect him. gentlemen have said we are prejudicing the claims of georgia, that their rights are implicated in this step; they have said that the act of congress establishing a government was an assumption of power; not so: by the spanish treaty that territory was ceded to the united states; the inhabitants were without a government; they petitioned congress for some form of government. what was to be done? the interposition of congress arose _ex necessitate rei_. it was no assumption of power or assertion of claims. it was a necessary establishment of a temporary government, to continue while there was necessity. he was for an immediate decision. messrs. randolph, davis, bayard, s. smith, macon, and griswold, continued the debate. the report of the select committee was agreed to. mr. milledge wished the yeas and nays, even if he stood alone. they were taken, and stood, yeas , nays . tuesday, december . another member, to wit, john rutledge, from south carolina, appeared, produced his credentials, was qualified, and took his seat in the house. tuesday, december . _library of congress._ mr. randolph reported a "bill concerning the library for the use of both houses of congress;" which, after being twice read, was committed to a committee of the whole house: mr. rutledge in the chair. the bill provided that the members of both houses, the president and vice president of the united states, and the judges of the supreme court, should have liberty to take any book from the library to read. mr. sprigg moved, to add the judges of the district of columbia. he was supported in argument by mr. dennis, upon the ground of the importance of the causes which this especial district would present, and the great expense and extreme scarcity of some most valuable and necessary law books. mr. bayard objected to the motion, because he could discover no reason for distinguishing the judges of the district from others; but judges of the supreme court being far from their libraries, required such references. he hoped the congressional library would never be subjected to the abuse which books used in courts of justice were too liable to. the motion was not agreed to. some observations were made as to the time which the library was to remain open. mr. griswold moved to confine it to the time of the session of congress. it was carried, with an exception moved by mr. southard, in favor of the judges of the supreme court, whose sessions do not accord with those of congress. a blank was left as to the sum to be appropriated, in addition to the remaining part of the five thousand dollars heretofore appropriated, for the purchase of books. on the chairman's asking the sum with which to fill the blank, mr. randolph moved to strike out the sections, observing that, of that sum, not more than $ , had been used, and $ , remained unexpended. he entertained no doubt but congress would aid the institution by every timely grant. wednesday, december . _internal taxes._ mr. davis moved the appointment of a committee to inquire into the expediency of repealing the acts imposing duties on stills and distilled spirits, on refined sugars, on sales at auction, and on pleasure carriages. mr. davis said his object, in making this motion, was, that the house should accomplish that directly, which had been this session attempted in so circuitous a way as to embarrass and delay its proceedings. he saw no reason for going into a committee of the whole, in order to arrive at decisions that might better be made directly by the house itself. on this motion a debate of considerable length ensued, in which, on the one side, the reference to a select committee, and on the other a reference to a committee of the whole house was advocated. no decision was had, and of course the motion of mr. d. was ordered to lie on the table. _army reduction._ mr. bayard, during the course of the debate--in allusion to the adoption yesterday of the resolution of mr. randolph for reducing the military establishment, which he thought premature, not considering the house as sufficiently acquainted with the details of the subject, to act upon it--said, that if gentlemen were for reducing the army in whatever degree, or for abandoning it altogether, he should go with them. he would, on such occasion, be governed by the same principles which had hitherto guided him. he had heretofore been disposed to repose a liberal confidence in the executive of the united states; and when an increase of our military force had been recommended by the president, he had invariably been for it; much more would he be disposed, when a reduction was recommended from the same quarter, to sanction it by his vote. with the executive rested the responsibility of the exterior defence of the nation; and if the executive was of opinion that the nation was secure with a force of three, two, or one thousand, or without even a single man, he would concur with him in giving effect to such a conviction. mr. randolph was called up by these remarks. he had little thought that his motion, agreed to yesterday _sub silentio_, and without the least hesitation, would have been made the topic of such animated animadversion as he had heard to-day. he would tell the gentleman from delaware, that his motion had neither been immature in substance, nor premature as to time. it would be recollected, that previous to its adoption, the secretary of war had been called upon to furnish information to the house. he had furnished information, to his mind completely satisfactory. he had stated the establishment to be five thousand men; and his opinion that all the garrisons required only three thousand men. could it, then, with any reason be called premature to act upon such information? if the gentleman from delaware, or other gentlemen thought so, why not combat a decision at the time? did they imagine that, without the expression of a murmur by them, the mover would himself rise and oppose his own motion? as to the delay which had been noticed, as having taken place in the transaction of business, it was not to be ascribed to any particular mode of procedure; but to the unusual languor of the season; to the absence of several members of great weight; to the augmentation of new members not yet fully acquainted with the forms of business, and to the unusual mass of information presented to the house, which enlarged the field of action, and to the delays of printing arising from the unusual quantity of matter submitted. _internal taxes._ mr. bayard moved that the house resolve itself into a committee of the whole on the state of the union, for the purpose of enabling him to offer a resolution to the following effect: "_resolved_, that the committee of ways and means be instructed to inquire into the expediency of repealing the laws laying duties on stills and distilled spirits, on refined sugar, on sales at auction, on pleasurable carriages, on stamps, and on postage of letters." mr. bayard made this motion for the purpose of placing the important subject contemplated by it in a train for decision. he thought it full time to commence our proceedings upon it; and in his opinion, it was fit that the consideration of the subject, generally, should go before the committee of ways and means. the subject was so important as to strike at the vital principles of our revenue. the repeal of the internal taxes involved a reduction of six hundred thousand dollars in our receipts. the propriety of such a reduction did not constitute a distinct subject for consideration, but depended upon the deductions made on a comprehensive view of our finances, which could only be taken by the committee of ways and means, to whom was committed generally whatever regarded revenue. if the minds of gentlemen, said mr. b., were made up to abolish all the internal taxes, it must be to them perfectly immaterial to what committee a reference was made. he knew the flattering prospects held out by the president, and he hoped they would all be verified. but his own mind was not made up, nor did he know that the minds of other gentlemen were made up on the propriety of dispensing with these taxes. he was led to this inference by observing no official notice to such effect in the communications made by the secretary of the treasury. on the contrary, the secretary had so made his calculations, predicated as they were upon the continuance of these taxes, that his calculations would be greatly deranged by dispensing with them. mr. b. knew not that we were prepared to leap this precipice. if the public burdens could be reduced, he would be delighted with the act of reduction. yet still, if the sum of six hundred thousand dollars, derived from these taxes, could be dispensed with, doubts might be entertained whether the internal taxes were those which should be first either reduced or abolished. he held it to be a correct principle, that taxation should be equal, and that no one class of citizens should be burdened to the exemption of all other classes. from a slight consideration of the subject, he had found no other way of enabling our brethren to the westward to participate in the public burdens than by affording them an opportunity of paying their portion of internal revenue. it might appear, on investigation, that more substantial relief would be afforded to the various descriptions of our citizens, by continuing the internal taxes, and reducing those on imports; and if it should be thought proper to diminish the burden imposed on our western citizens, he would ask whether that effect would not be more substantially accomplished by reducing the tax upon salt? it would be recollected that great opposition had been made to the imposition of this tax, which had been denominated oppressive, as it fell upon an article of necessity. attention ought, also, to be paid to the liability of several articles to be smuggled, the only mode of preventing which was well known to be a reduction of the duties. mr. b. stated these circumstances, not as evidences of having matured his own ideas; but to show the necessity of referring the subject to a committee, whose special duty it was to take a general view of the resources and expenses of the nation, and who, therefore, in the present stage of the session, were alone in a situation to make the requisite inquiry. mr. eustis said that the reasons offered by the gentleman from delaware were with him conclusive that this was not the proper time for considering the subject. until we know the reductions in the expenditures of the government that are to be made, it is impossible that we can say how far it will be expedient to reduce or abolish our taxes. we had not determined to what extent the army or the navy should be reduced, nor had we come to any ultimate decision on any reduction whatever. for these reasons he must oppose a decision at this time upon the subject, whether that decision was in this or any other shape. mr. bacon concurred with mr. eustis in considering any decision as at present premature. mr. rutledge viewed the subject as of great importance. he could not figure to his imagination one likely to occur this session of equal importance. the president contemplated a repeal of all the internal revenues, and the imposition of all taxes upon imported articles. the secretary of the treasury appears, by implication, to be of a different opinion, and contemplates a continuance of these duties. what is the object of the gentleman from delaware? why, delay; time for consideration, by reference of the subject to a committee most competent to inquire. as to the public burdens, every member on the floor had a common feeling. we do not wish to lay unnecessary taxes. but when taxes are laid, when they are uncomplained of, it was indeed deeply interesting without consideration to decide on their abolition. mr. r. said, for himself, he should be embarrassed by being forced into an immediate decision. we want information before we are called upon to decide. the motion seeks that information. it sends the business to the committee of ways and means, to whom it belongs of right. it is their duty to consider it, for whatever relates to revenue must go to them. gentlemen cannot say that they are surprised. by the resolution, they are not called upon to decide upon the subject; they are only called upon to place it in a train for decision. mr. macon hoped the business would be taken up, and the sooner it was done, the better. it was certainly of great importance, and the earlier the house proceeded to consider it, the sooner would they be prepared for deciding upon it. if the vote of reference was final, the arguments of the gentleman from massachusetts would apply. but this was not the case. it had been said that the president had declared his opinion that we can dispense with these taxes. the statement was not correct. his opinion was contingent. he had said, we may dispense with these taxes in case we proportionably reduce the expenses. as to the remarks made respecting the different opinions of the president and secretary of the treasury, they likewise were erroneous. distinct views were taken by each. the president, contemplating a reduction in the expenses, intimates the expediency of repealing the internal taxes; whereas the secretary of the treasury, taking things as they are, states the effects of their continuance. from these circumstances, no diversity of opinion could be inferred. mr. m. concluded by expressing a hope that the expenses of the government would be reduced, that the internal taxes would be taken off, and that immediate measures would be pursued for preparing the house for a final decision. mr. eustis was alike hostile to the present motion and to that which had been made by the gentleman from kentucky, who had yesterday introduced the subject. he had heard the motion with a sensation of uncommon surprise; for he was of opinion that the public attention should not be attracted, or the public sensation excited, till we should be able to determine the course proper to be pursued. he felt himself unprepared to decide, and believed other gentlemen were equally unprepared. he hoped that he cherished a suitable respect for the president of the united states, though he did not know that he would go so far as the gentleman from delaware, and disband a whole army at his word. the wisest course was to wait until information was obtained. this would in fact be gaining time. if the committee of ways and means were to consider the subject, it must be under the present state of things. they could not take for granted what might or might not be done by congress; and before congress could decide, they must have information which they do not yet possess. he who, under present circumstance, attempted to say to what length our retrenchments would go, and what taxes we could spare, might indeed be called a prophet. we ought not, said mr. e., to stir the public sensibility improperly or prematurely. by exciting that sensibility before we had determined how to act in future, impressions may be raised which we shall not be able to satisfy. mr. smilie concurred in opinion with mr. e., and moved, as the best mode of disposing of the subject, that the committee rise. mr. griswold declared himself against delay. he knew not why the house were not prepared to decide immediately. the president had introduced the subject, and if any sensibility had been excited, it must be ascribed to him, and not to us. nor did he think that any ill effects would flow from attracting the public attention. the president did not know, when he addressed us, that we would be for a reduction of the expenses; yet, thinking as he did, it was highly proper in him to give his opinion to the house. so proposed to us, it would exhibit a want of respect to that magistrate not to take it up immediately. not to act upon it promptly would be subversive of the national tranquillity after the attention of the public had been directed to it. mr. smilie had thought the gentleman from connecticut was too well acquainted with the proceedings of that house to say that the committee of ways and means were prepared to act upon this subject. did they know how far we would reduce the army, the navy, or the judiciary? mr. varnum hoped the committee would rise. any disposition of the subject was at present premature. as to the calculations of the secretary alluded to, they were made from the existing revenue, and all his deductions were made therefrom. the president had taken another view of the subject. contemplating the probability of a reduction in our expenses, he had stated that, in such event, we could dispense with the internal taxes. but whether the contemplated reduction could be made, the house were not prepared to say. of one thing he was sure, that not a single necessary tax would be abandoned. mr. dana said, that more than three weeks have elapsed since the president's communication has been laid before us, and, during that time, a sense of decorum has not induced us to take up one of the most important parts of it. he certainly agreed with gentlemen that we ought to take up the subject and decide for ourselves. if we concur with the president, we shall repeal the laws; if we do not concur, we may, it is true, risk our popularity by opposing so favorite a measure with the people. but placed as we shall be between popularity on the one hand, and duty on the other, as honest men we should do our duty. but certainly it is our duty now to examine the subject. grant that the reduction in our expenses may extend to a million, though scarcely half that sum could be hoped for; still the question remains what taxes shall be diminished. he could not, for his part, feel all that horror of public sensibility that had been portrayed by the gentleman from massachusetts. what have we to fear, suppose we interfere with that sensibility? if we do so in the discharge of our duty, he was perfectly willing it should be excited; nay, it would be useful to the people themselves. mr. eustis was perfectly ready to meet the public sensibility, whether for or against us. we had already tried it both ways. he was much pleased with the respect professed by gentlemen for the public sensibility, and also for the communications of the president. but there were parts of those communications, which, notwithstanding the impatience of gentlemen, they would not be displeased at laying unacted upon, not merely three weeks, but three months. mr. bayard did not expect an opposition to his motion from the quarter from which it came; for he had a right to expect as much deference to the president from the opposite, as from his own side. for his part he felt no terrors at meeting the whole, or any part of the president's communications. whatever he recommended that was right, he would vote for, and whatever was wrong, he would oppose. though his former habits had led him to cherish a respect for the president, of which he did not repent, yet he felt no servility that would lead him to repress an expression of his sentiments. a gentleman from pennsylvania had talked about reducing the army, the navy, and the judiciary. but there were other expenses which the gentleman might have dwelt on. why silent on the legislature? let us reduce the length of our sessions. it did not appear consistent in that gentleman to strike at the judiciary, and other departments, and leave untouched whatever affected himself. mr. randolph did not desire to occupy much of the time of the committee, as he thought it immaterial whether the committee rise or not. but he wished, for the information, and perhaps for the satisfaction, of the gentleman from massachusetts, to state that, among other members, he was one who had not decided whether government could dispense with the internal taxes. he hoped, and was inclined to believe, that they might be dispensed with. the secretary of the treasury had expressly stated that part of his report was speculative, viz: that part which inferred the effects of peace. the correctness of the opinion of the secretary on this point must decide the house as to the propriety of giving up these taxes. he was one who, though he did not think a state of peace would materially affect the revenue, had not decided whether a reduction of the public impositions in this or that species of revenue should be made. he noticed these things, to prevent an impression being made on the public mind that the house were for precipitating a decision. as to the public sensation, he felt no alarm. he knew that our measures must depend upon the reductions we shall make. mr. r., for these reasons, was against any decision now; and had the gentleman from kentucky pressed his motion yesterday, he was prepared to move a postponement of it. in the mean time, there were other important topics involved in the message that might be referred and acted upon. mr. dana presumed that the honorable gentleman from massachusetts had done him the honor of alluding to him in his remarks. he was not very solicitous that the subject should be inquired into, but since it was brought up, he must say that nothing short of the talents of the honorable gentleman could furnish a semblance of reason for not going immediately into the inquiry. that gentleman errs egregiously, if he imagines that i can dread an investigation of any point involved in the president's message. he would add, that whatever his particular opinion might be of the person to whom had been confided the government of the nation, it became him only to see in him the first magistrate of the country, and to treat him with correspondent respect, and to see in what he did, not the man, but the measure. the question was then taken on the committee rising, and lost--yeas , nays . the reference to the committee of ways and means was then carried, both in committee and in the house, without a division. the house adjourned till monday. monday, january , . william barry grove, from north carolina, appeared, produced his credentials, and took his seat in the house. _ordered_, that mr. milledge be appointed to the committee of ways and means, in the room of mr. dickson, who is sick and unable to attend. _judiciary system._ mr. randolph moved that the house should go into a committee of the whole on the state of the union, with the view of submitting three resolutions to the committee, viz: "_resolved_, that it is expedient to inquire whether any, and what, alterations should be made in the judicial establishment of the united states. "_resolved_, that provision ought to be made for the impartial selection of juries. "_resolved_, that it is expedient to inquire whether any, and what, reductions can be made in the civil expenses of the government of the united states." the house accordingly went into committee. mr. bayard presumed an agreement to these resolutions would, in their present shape, meet with no opposition. it was impossible to determine what shape they would ultimately assume. the judiciary system was doubtless susceptible of amendment, and if any proper amendments should be proposed, he would concur in their adoption. with respect to the second resolution, though he did not know that there was any necessity for altering the mode at present practised of selecting juries, not having heard of any complaints under it, yet, as the resolution only led to an inquiry into the subject, he would not object. with regard to the last resolution, it was one in which we must all concur. the object, if attainable, would be extremely grateful to all of us. the three resolutions were agreed to without a division. the committee then rose, and reported them to the house. on the report being taken up, mr. randolph moved that the consideration of the two first resolutions be postponed till the third monday of january. mr. bayard hoped the motion for postponement would not prevail. the propositions were abstract ones, leading to inquiry, and the sooner they were acted upon, the better. the mode pursued by the gentleman from virginia, if his simple object was to give notice, was the least happy that he could have devised, for it gave to gentlemen no opportunity to prepare themselves, as they were totally unacquainted, in the present stage of the business, as to what would be the alterations proposed. if a committee were now appointed, they would have time to deliberate on a subject of the utmost importance--one so complicated as to require great attention. when their report was made, he would be one of those who would ask from the candor of the house time to consider it. mr. randolph said, he was at all times willing to accommodate gentlemen of every political description on proper occasions. apprehending that his resolutions, if taken up in the house, would give rise to discussion, he had moved for their postponement, from a wish not to interfere with the desire of the gentleman from pennsylvania, and other gentlemen, to act on the apportionment bill. as his motion for postponement appeared likely to be itself productive of discussion, by which the time of the house would be exhausted, and the means he used defeat the end he had in view, he would withdraw his motion. the house then agreed to the resolutions without a division. mr. randolph moved the reference of the two first resolutions to the same committee. he said, in reply to the gentleman from delaware, that he made the motion respecting juries not because any complaint did at present exist of the exercise of the powers under which jurors were selected, but because they had not long since existed, and because in similar circumstances they might again exist. he was glad the gentleman from delaware had no reason to complain of their present abuse. but this was no security against the future. mr. bayard said, that he had spoken as he had done, not for the purpose of expressing any opinion that any abuse respecting juries had been recently removed under the present state of things; but to state that he had never heard of any complaints on this subject in the part of the union from which he came; and he had particularly alluded to the mode of designating jurors in his state, which was by ballot. but if there were complaints in other parts of the union, he would co-operate in any means that could be devised for removing them. mr. smilie said, that since the gentleman from delaware had introduced the subject, and had declared that no complaints existed, he would say that complaints had existed, that just grounds for them existed, and that they had been expressed in the loudest tone. and he would appeal to the gentleman from delaware whether any man could be safe who was at the mercy of a marshal, who was the mere creature of the president. mr. bayard.--while man continues as he is, there will be complaints on this subject. we are divided into parties. the people, as well as the president, must belong to one side or the other; and whether we have sheriffs chosen by the people, or marshals appointed by the president, the evil will still exist. he had no objection, if it were the wish of gentlemen, that the marshals should be appointed by the people; though we know that the people are as apt, nay more apt, to be infected with violent political feelings, than an executive officer. mr. randolph said, that without desiring to exhaust the time of the house on a point where there was no difference of opinion, he could not permit the observation of the gentleman from delaware to pass unnoticed; that an officer, holding a lucrative office, appointed by the president, and dependent upon his will, is as independent as a sheriff, elected in some states annually by the people, and in other states appointed in a manner calculated to ensure his independence. he would instance the state of virginia, in which the sheriffs were nominated by the justices of the county courts, who, it was understood, were to hold the office of sheriff in rotation. will the gentleman say that these men, who are independent of the pleasure of any man, are liable to be made the same tools, with officers who hold their appointments at the absolute will of one man? mr. r. would further say, that the remark of the gentleman from delaware, that the existence of no complaints had ever come to his ears, had excited his extreme astonishment. in north carolina, he believed, no legal jury had been selected since the establishment of the federal government. in that state, in the state courts, all juries are first selected in the inferior courts, and then sent to the superior courts. he would ask, how, under these circumstances, a jury could be struck in a federal court in that state agreeably to law? in virginia and pennsylvania, the independence of sheriffs is secured; therefore, no restrictions are imposed upon them in selecting juries; whereas, in the federal courts the marshal is the abject creature of the executive--and yet we are told the security is the same! mr. r. did not wish to consume the time of the house; but when views are taken by gentlemen calculated, either as to fact or sentiment, to lead the public mind astray, if other gentlemen did not, he would invariably notice them. mr. bayard desired to explain. he had not meant to contend that sheriffs chosen for three years by the people were as dependent as similar officers appointed by the president. he had alluded to the effects which flowed from a marked division of parties. we were in all events subject to that evil. it was a truth that men deeply infected with party were more apt to be chosen by the people than by an executive magistrate; because the people felt more strongly a degree of political fanaticism. after some further debate, it was determined to refer the two first resolutions to a committee of seven, and the last to a committee of five members. _ordered_, that mr. nicholson, mr. john taliaferro, jr., mr. goddard, mr. rutledge, mr. israel smith, mr. henderson, and mr. bailey, be appointed a committee, pursuant to the first and second resolutions. _ordered_, that mr. bacon, mr. grove, mr. elmendorph, mr. hemphill, and mr. abram trigg, be appointed a committee, pursuant to the third resolution. tuesday, january . _apportionment bill._ on the question being taken for striking out thirty-three, it was lost--yeas , nays . mr. dennis moved to strike out eight, the number of representatives allotted to maryland, and insert nine; which amendment had been rendered necessary by the supplementary return received from maryland. on this motion a very desultory debate took place, which was twice interrupted by motions for the committee to rise, which were both lost. much personal recrimination, chiefly on the charge of delay on the one side, and precipitation on the other, was exchanged. the amendment was at last agreed to--yeas . the committee then rose and reported the bill as amended. the house immediately took up the report of the committee, agreed to the amendments, and ordered the bill to be engrossed for a third reading to-morrow. thursday, january . _stenographers._ the house went into committee of the whole on the standing rules of the house. mr. leib moved the addition of the following rule: "the speaker shall assign such places to the stenographers on the floor, as shall not interfere with the convenience of the house." mr. leib prefaced his motion, by observing that, in the standing rules proposed, no provision appeared to be made for the admission of stenographers. they had heretofore been subject to the will of the speaker. however great his respect for the present speaker, he was of opinion, that they should not depend for their accommodation upon the will of any man; and he thought it became the house, on this occasion, to establish a precedent which would place those who took the debates above the caprice of any individual. mr. huger moved to amend the motion so as to read as follows; "stenographers shall be admitted, and the speaker shall assign to them such places on the floor as shall not interfere with the convenience of the house." mr. leib agreed to this modification. the motion was opposed by mr. griswold, mr. rutledge, mr. varnum, mr. hemphill, mr. t. morris, mr. eustis, mr. dana, mr. elmer, and mr. goddard; and supported by mr. leib, mr. s. smith, mr. nicholson, mr. claiborne, mr. smilie, mr. holland, and mr. sprigg. mr. huger opposed the original motion of mr. leib, but supported the motion, as amended by himself. the opponents of the motion declared, that it did not relate to substance, but merely to form; that it was allowed on all hands, that the debates should be taken, and that stenographers should, consequently, be admitted. but the single question was, how, and under what authority, they should be admitted. they remarked, that they had heretofore been admitted by the speaker, under whose direction they had remained; that the speaker was the only proper authority under whose direction they ought still to remain; that, as the preservation of order and decorum rested with him, the stenographers, as well as other persons, should be permitted by him to enter the house, and be by him excluded, whenever, in his opinion, the order and a respect for the house required it. that, in case stenographers deported themselves in a disrespectful manner, or grossly misrepresented the ideas of members, the speaker was the only person who could effectually cure the evil; that there had been, and might again be, instances of such misconduct; that, in one case, a stenographer had entered the house in a state of intoxication; another case, a speech of a gentleman from south carolina, had been perversely misrepresented, and the stenographer had refused to correct his errors, for which he had been expelled the house; and that, in another case, the speaker, considering himself as misrepresented, had expelled the stenographer. among the opponents of the motion, a great diversity of opinion prevailed. mr. eustis, mr. varnum, and mr. elmer, objected to it, merely on the ground that it was improper to come to any solemn decision, which was the less necessary, as the stenographers already occupied convenient seats, from which there was no probability of their being extruded by the speaker. those who supported the motion, considered its decision as involving an important point; a point no less important, than, whether the debates of that house should be taken with accuracy, and published without fear or partiality. they averred it as a fact, that, owing to the unwarrantable conduct of the speaker, this had heretofore, at many periods, not been the case. the public had sought information without being able to get it. it was true, that a stenographer had been expelled for publishing a speech of a gentleman from south carolina; but it was not for misrepresenting that speech, but for faithfully publishing it; and in the other case alluded to, a stenographer had been expelled by the speaker, for stating, with correctness, what the speaker had himself said. these were alarming facts, not to be forgotten, and which claimed the interposition of the house. if stenographers should be guilty of indecorum, they could still (this rule notwithstanding) be expelled the house. it was acknowledged that the gentleman who at present filled the chair, was entitled to the full confidence of the house, but it was dangerous to vest arbitrary power in the hands of any man, and it was peculiarly proper to provide in fair, for foul weather; and it was added, that though the proposed rule would not be obligatory upon a future house, yet it would form a precedent, which they might see fit to respect. the motion, as modified by mr. huger, was then agreed to--yeas , nays . the committee then rose, and reported the rules with the above amendment. the amendment was immediately taken up; when mr. rutledge moved to amend the report of the committee, by making it read as follows: "stenographers may be admitted under the direction of the speaker, who shall assign to them such places on the floor, as shall not interfere with the convenience of the house." on this amendment a further debate ensued; after which, the yeas and nays were called, and were--yeas , nays . another motion was then made and seconded to amend the said amendment, by inserting after the words, "stenographers shall," the following words, "until otherwise ordered by the house;" and, the question being thereupon taken, it passed in the negative. and the main question being put, that the house do agree to the amendment for an additional rule, as reported from the committee of the whole house, it was resolved in the affirmative--yeas, , nays . _resolved_, that this house doth agree to the said standing rules and orders, as amended. monday, january . another member, to wit, seth hastings, from massachusetts, produced his credentials, was qualified, and took his seat in the house. _mediterranean trade._ mr. randolph moved a resolution directing the secretary of the treasury to lay before the house an estimate of the value of the exports of the united states, for the last five years, to ports situated within the straits of gibraltar, discriminating articles of american growth from other productions. mr. randolph observed that he was aware of the inability of the secretary to distinguish precisely the exports of the united states, carried to the mediterranean ports of france and spain, from those carried to their other ports. but still he thought it probable that the secretary might be able to furnish information that would be valuable. mr. s. smith said, that when the report was made by the secretary, it would be a report of deception. a great part of our trade to the mediterranean had been lopped off in consequence of the war. mr. smith afterwards remarked that, on the report being made, he feared the inquiry would be, whether we should give up the protection of the mediterranean trade, or not. gentlemen would probably go into a calculation of figures; and if the expense of protection appeared to be greater than the benefit of the trade, they might be for withholding protection. there was one description of trade to the mediterranean, which we could obtain no estimate of, which was however very important--the tonnage of american shipping employed in going from european ports to the mediterranean, and from the mediterranean to european ports, and american shipping employed between the east indies and the mediterranean. this trade the government was as much bound to protect, as it was bound to protect the landed interest of the country. still, mr. s. knew not that it would be proper to oppose the passage of a resolution that asked for information. mr. smilie knew not what information we could receive; but he knew that whatever it should be, it could do no harm. mr. nicholson remarked, that the house would not be in a worse situation after the report, than it was now. for himself, he was in a state of total ignorance, and he believed a large part of the house was also ignorant of the extent of our mediterranean trade. it was impossible that the house could be deceived by the report; as, if any part of it should be calculated to deceive us, his colleague would be able to detect its errors. he had heard, and that too from commercial men, that our mediterranean trade was not valuable, and not worth the expense of the squadron fitted out to protect it. he was at a loss to decide between these opinions and those of his colleague. mr. mitchill spoke in favor of the resolution. mr. griswold had no objection to obtaining the estimate, if desired by gentlemen; not that he supposed the report could present the information that was desired. with regard to our mediterranean trade, it was well known, that lately, owing to our contest with algiers, our fish and oil went in european bottoms, which could not be noticed in the treasury statements, as they went first to other ports. mr. eustis was perfectly willing to obtain the report, that the great increase in our trade to the mediterranean should be seen; from which its great value would fully appear, and its claim to encouragement. mr. varnum suggested the propriety of a reference to a select committee, which, from the documents before the house, could select the desired information. mr. rutledge feared, that the call for this information would delay the passage of an important bill before the house for the protection of our mediterranean commerce. he hoped, in order as promptly as possible to obtain information, the secretary of the treasury would be called upon for it. with respect to the protection of our trade in the mediterranean, it was, in his opinion, unimportant what its extent was. we were bound to protect the commerce of our citizens in all its ramifications, whether great or small. the resolution was then agreed to. thursday, january . another member, to wit, john dawson, from virginia, appeared, was qualified, and took his seat in the house. wednesday, january . _military peace establishment._ the house then took up the amendment to the bill fixing the military peace establishment. mr. bayard moved to strike out the office of brigadier general. he said there could not be any occasion for such an officer, as the men were scattered over the whole extent of our frontiers and atlantic coast, and placed in small divisions. this brought on a debate which was continued until after three o'clock. the question was taken by yeas and nays for striking out-- against it, for it. mr. bayard moved to strike out the office of colonel, and add one to the number of majors; but it was not agreed to. the bill proposed to give those officers who should be deranged, three months' pay when they were dismissed from the service. mr. griswold moved to strike out "three months," that a greater compensation might be given to those who have grown gray in the service of their country. he thought more was due to them than what the bill proposed to allow. mr. varnum said, his own opinion was in favor of a greater compensation; but he owed it to a majority of that house, to yield his opinion to what they had fixed it at. he said there was nothing due to those officers, as nothing had been promised them. mr. mitchill was in favor of striking out, for the purpose of inserting a compensation proportionate to the length of time the officers had been in service. mr. bacon differed as to the principle laid down by gentlemen. when officers were wanted, there was great competition for the appointments. they were desirous to receive the pay and emoluments. he did not think there was any thing due to them. mr. s. smith was for pursuing some system in this business, and keeping to a uniform principle. when a reduction was made in , six months' pay and subsistence was granted. he would be in favor of that at this time. mr. dana believed those officers accepted their appointments under an idea of its being the permanent peace establishment, and therefore something was due to them when dismissed from the public service. mr. smilie said, they knew the terms on which they entered the service, and they entered voluntarily. how could any thing, then, be due to them? it would be more proper to give the men something when disbanded than to provide for the officers. it was not long since that about forty were wanted, and there were thirteen hundred applications. men could not always be obtained. when the ten regiments were ordered to be raised, the officers were soon obtained; but, after recruiting a long time, the proper number of men could not be procured. the question for striking out was taken by yeas and nays--for it , against it . mr. s. smith made a motion to raise it to the same as was granted in . mr. eustis advocated it, but it was not carried, there being for it, and against it. the bill was ordered to be engrossed for a third reading to-morrow. thursday, january . _military peace establishment._ an engrossed bill fixing the military peace establishment of the united states was read the third time. mr. bayard observed that he should vote for the bill, because he thought it better than the former system, and it would be of much saving as to expense. he was, however, very far from being pleased with a part of that bill, that part relating to the brigadier general and his aide-de-camp. this office he knew to be a perfect sinecure; no such officer was necessary; he could have no duties to perform. he would not, however, vote against the whole bill on account of this. mr. rutledge.--the first section was very disagreeable to him, as it went to the establishment of a perfect sinecure. he was willing to do homage to the merit of the officer who was to benefit; but he rather thought it would be more consonant with justice, if money must be needlessly sported with, to suffer such money to be given to those who have been long in service--some fifteen or twenty years--and who are now by this bill suddenly forced to quit their present, to seek some new way of obtaining a livelihood, in circumstances, many of them perhaps, not enviable. mr. r. was not pleased with the so great reduction of the artillery; he thought the retention of the artillery of more importance than that of the infantry. he had hoped the artillery would have been retained to keep in order the forts already built in different parts of the united states; the small number remaining was quite incompetent to preserving them in order, or preserving them from decay. the secretary of war mentions one fort in south carolina. there are, sir, four forts in the harbor of charleston alone, some of which must go to decay. he should vote for the bill because it went to make great reductions of expense, which reductions circumstances now allow us to afford; but the sinecure was obnoxious to him, and he was not pleased with the reduction of the artillery. on the question that the bill do pass, it was resolved in the affirmative--yeas , nays . _mediterranean trade._ the house again resolved itself into a committee of the whole house on the bill for the protection of the commerce and seamen of the united states in the mediterranean and adjoining seas. mr. bayard offered an amendment, the purport of which, was to give to the president the power of granting letters of marque and reprisal, to affect algiers and tunis as well as tripoli. mr. b. thought that it would be unsafe to neglect a cautionary step like this, because there was great danger, from the similarity of religion and manners, of a union taking place between tunis, algiers, and tripoli; they may be brought into the war with tripoli against us. it would be a matter of prudence to be prepared. mr. dana thought it very probable that further information would be received from the barbary powers, when we shall be the better enabled to judge what will be expedient. he did not like the appearance of the amendment; it seemed to invite war. mr. bayard considered there was a great difference between the barbary powers and civilized nations; it was on account of the perfidiousness of those powers, that he wished it left to the direction of the president to exercise the power vested in him when he should think proper; there was no trusting to them. he wished the president to do this by the authority of law; this would prevent those doubts that have been expressed by some, of the constitutionality of his measures the last spring and summer; though for his part he was disposed to approbate the proceedings of the executive on that occasion. as to its having the appearance of threatening, he did not think so; nor did he believe it would have any effect on those powers; he hardly believed that the dey of algiers ever read the acts of congress. mr. dana was opposed to considering the subject at present; he was for postponing till further information should be received. mr. giles was against the amendment; he thought it had the appearance of inviting them to an attack, of challenging them to combat, of irritating and provoking them: he believed there would be ample time to act on this matter hereafter, when they would have a better knowledge of circumstances, and of what to expect. mr. bayard said he was by no means disposed to withdraw his motion. you are at war with one of these nations; the others are connected with them by their religion and habits, by their government some, and by their interest more. i have been told that there is no connection between my amendment and the bill; but i am confident there is the same connection that there is between tripoli and the other powers; and it is proper to extend the bill so as to embrace tunis and algiers, as well as tripoli. the gentleman from connecticut (mr. dana) says there are no doubts on his mind but that the president has a constitutional right, as the commander-in-chief of the army and navy, to do as he has done; but it should be remembered that many have doubts; and why should the gentleman be opposed to this amendment, which will preclude all doubt on the subject. the amendment was not carried. _direct taxes._ the house then went into a committee of the whole on the bill for amending the act for laying and collecting a direct tax. the first section repeals the thirteenth section of the act of , which prescribes that lands on which taxes remain unpaid for one year, shall be sold subject to the right of redemption within two years after sale. mr. randolph stated that the provisions proposed to be repealed were unsusceptible of execution, inasmuch as the expenses of advertising required, exceeded in many cases by four or five times, the amount of the tax, and which exceeded the per centage allowed; and inasmuch as no person would buy the land offered for sale, when he might be deprived of it by a redemption within two years. documents were read which substantiated this statement. mr. s. smith opposed the repeal, as going to deprive the owners of lands of the right of redemption; which he deemed a valuable provision; without which the owners of land, particularly non-residents, would be deprived of their property, without a knowledge of the tax imposed, or being able, however desirous, to pay it. mr. rutledge also opposed the repeal, as imposing hardships upon those who have not paid the tax, which were not imposed upon those who have paid. he further stated that the non-payment in the southern states had arisen, not from indisposition to pay, but from want of collectors to carry the law into execution; the compensation allowed having been so inadequate as in many districts to have disabled the government from obtaining officers. messrs. griswold, milledge, stanley, and morris, delivered their sentiments against the first section; when, on motion of mr. macon, the committee rose, and asked leave to sit again, which was granted. friday, january . another member, to wit, robert williams, from north carolina, appeared, produced his credentials, was qualified, and took his seat in the house. monday, january . _import duties._ mr. nicholson called up the resolution he laid on the table on friday, for instructing the committee of ways and means to report generally on the subject of impost duties. mr. lowndes wished to amend it so as to direct the attention of that committee particularly to the articles of salt, brown sugar, coffee, and bohea tea. this the speaker considered out of order, as resolutions on those subjects were then before the house. mr. rutledge and mr. bayard wished to withdraw the resolutions they had offered on the articles of salt, brown sugar, &c. mr. speaker considered the resolutions in possession of the house, as they had been debated, and the previous question taken on them, and no motion could be made while another motion was pending. mr. bayard asked for information whether it was in order for him to state that he withdrew his resolution? some conversation took place as to points of order. the question on the resolution was called for. mr. dana said there was no instruction given to the committee by the resolution of december , to make a report on the subject of imposts and tonnage. he was pleased to see this resolution moved by the gentleman from maryland, as it showed his belief to be that the subject was not referred to the committee. mr. dana expressed his wish that two things should be referred to the committee of ways and means: first, a general view of the duties of imposts and excise that they might be contrasted; and, secondly, that certain articles should be specifically referred to them. mr. nicholson said the gentleman from connecticut was very much mistaken as to the object of his resolution. it was not that he did not think the subject before the committee, but as so much had been said about the former general reference, he wished to prevent the gentleman from connecticut from quibbling respecting the reference. [here mr. n. was called to order by mr. griswold. the speaker declared it as his opinion that the gentleman was in order. mr. bayard appealed to the house, and called the yeas and nays, which were agreed to be taken.] _internal revenues--expenses of collection compared with custom house duties._ mr. bayard called up the following resolution, which he had some days previously laid upon the table, viz: "_resolved_, that the secretary of the treasury be required to lay before this house an account, in detail, of the expenses incurred in the collection of the internal revenues of the united states; distinguishing, where the same may be practicable, the expenses attending the collection in each branch of the said revenue, and, also, an estimate of reduction of said expenses which may conveniently be made." the resolution having been read, mr. b. said: as it is extremely possible, mr. speaker, that it is designed that this resolution shall share the same fate with that which the resolution of the gentleman from new york experienced this morning, i shall be allowed at least by publicly stating, to justify to the world, the motive which induced me to bring it forward. [mr. b. alluded to a resolution offered by mr. t. morris, the object of which was, to direct the secretary of the treasury to state to the house the amount of stamp duties collected in each state, distinguishing what part was paid by the commercial cities. when the resolution was taken up there was a call for the question. nothing was said against the propriety of it. it being merely a call for information, and considered so much a matter of course to agree to such resolutions when no opposition was made to them, it was not supposed necessary to say any thing on the propriety and reasonableness of the resolution. yet, to the astonishment of its friends, when the question was put, there were for it , against it .] gentlemen are infinitely deceived, said mr. b., if they think our object is, by any particular mode of proceeding, to gain an unfair advantage of public opinion. if such a suspicion be entertained, our conduct has been viewed with a jaundiced eye. it is a motive which never has, and i hope never will direct our measures. if popularity is to be gained only by a prostitution of principle to ignorant and unthinking prejudice, we are content to forego it. i am far from being indifferent to public opinion; the approbation of our fellow-citizens is the only reward we can expect for our services; but it is a reward no honest man will seek, if it is to be acquired only by artifice and deception. i have avowed and avowed sincerely, that i am disposed to go hand and hand with gentlemen in the reduction of public burdens. when it was necessary i assisted in imposing them--now that circumstances permit i more cheerfully co-operate in taking them off. my true object is to make the most of our situation; not to be deluded by empty theories, or speculative systems, but, by an enlarged view of the various interests of the country, to discover by the reduction of what taxes the society would be the most substantially benefited. the reduction of the military establishment creates considerable savings; other retrenchments are contemplated in the navy and civil administration. these savings enable us to dispense with certain taxes; but is it not wise to examine diligently the operation of the several taxes which exist, and, after being informed by the various views which belong to the subject, to exonerate the community from those which, with the least benefit, are the most burdensome? one great objection to the internal taxes is the expense of collection. i wish to know the particulars of this expense in order to see whether it may not be curtailed. i wish also to be informed of the expenses attending each branch of the revenue, for the purpose of judging whether it may not be expedient to retain some branches, while it may be wise to part with others. these are my objects; do they not entitle us to the information asked? we know in one instance, that the expense in collecting the stamp duty is less than five per cent. this appears by the report of the secretary of the treasury; but we are not informed of the particular expenses belonging to the other branches of the revenue. sir, said mr. b., i must rely that the resolution will be agreed to; there is not a precedent in our annals or opposition to such a resolution; if, however, one is now to be introduced, i think it proper that the names of those gentlemen should hereafter appear by whom it was resisted, and by whom it was established. he therefore hoped the question would be taken by yeas and nays. the clerk, at the request of mr. randolph, read an extract from the report of the secretary of the treasury, as follows: "it will appear by the same statement, [m,] that while the expenses of collection on merchandise and tonnage, which are defrayed out of the revenue, do not exceed four per cent., those on permanent internal duties amount to almost twenty per cent. this, however, is an inconvenience which, on account of the great number of the individuals on whom the duties are raised, and of their dispersed situation throughout the whole extent of the united states, must, more or less, attach to the system of internal taxation so long as the wants of government shall not require any considerable extension, and the total amount of revenue shall remain inconsiderable." mr. t. morris.--if the honorable gentleman from virginia (mr. randolph) thinks that the extract of the report of the secretary of the treasury, the reading of which he has called for, furnishes the information demanded by my honorable friend from delaware, he is mistaken. the secretary's report gives you a general estimate of the expense of collecting the aggregate of the internal taxes, but does not specify the charge falling on each separate tax. from the statement exhibited by the secretary, it appears that it costs twenty per cent. to collect the whole of the internal taxes; but if the detailed statement asked for by the gentleman from delaware is furnished, it will appear that the collection of some of those taxes does not cost more than five or six per cent. to show how unfair it is to connect together the expense attending the collection of all the internal taxes, i need only refer gentlemen to an authority which i believe they will not dispute. if my memory, sir, is not very incorrect, it will appear by a publication of the present secretary of the treasury, written in the year , that the tax on country distilleries cost in its collection near thirty per cent.; that on city distilleries about nineteen. these, sir, and other reasons, may evince the propriety of repealing the tax on country distilleries; but because this tax is expensive in its collection, because it may be liable to objections, does it follow that other taxes, such as the tax on carriages, on refined sugars, &c., which fall on the rich, and which are not expensive in the collection, does it follow, i say, that because it may be proper to repeal the first, that these are to fall too? it is, sir, in order to be enabled to make proper discrimination, to be enabled to know which of these taxes ought to be repealed, and which retained, that the gentleman from delaware has moved his resolution. and here, sir, let me be permitted to express a hope, that the resolution now before you may not meet with the silent negative which was the fate of one intended also to procure information, and which i had the honor of laying on your table. i did and do still believe, sir, that the majority of this house could not have been actuated by proper motives in refusing that information. [here mr. randolph called mr. morris to order, saying that he had no right to impeach the motives of members. mr. m. observed that for his part he was at a loss to know what was considered disorderly in that house, but that he would submit to the correction of the chair. the speaker determined him to be in order, and mr. m. proceeded.] with regard, sir, to the course of proceeding which gentlemen have lately adopted, persevering in an inflexible silence, rejecting every proposition made by a member in the minority, without deigning to show its fallacy, refusing public documents for our information and that of our fellow-citizens, without showing, or even pretending to show, that they are unnecessary, i can only say that it militates against all my ideas of propriety. i have always hitherto supposed that every representative on this floor had a right to be heard; that he had a right to call on the majority for their reasons both when they supported and opposed public measures. gentlemen may, if they please, meet in what they have denominated caucuses when power was in other hands; they may then confer together about the measures in which they may think proper to unite; but, sir, if their debates are to take place there, and there alone, if we are not to be furnished here by them with the reasons which induce them to adopt public measures, they ought at least to open their doors to the minority, in order that, if they cannot hear their arguments in the proper place, they may not close them altogether. i trust, sir, that gentlemen themselves will see the impropriety of persevering in this line of conduct, and that they will consent to pay, if not to gentlemen in the minority, at least to their propositions, the attention and respect which they may deserve. mr. griswold said, that he presumed the gentleman from virginia (mr. randolph) had requested that the extract from the report of the secretary of the treasury might be read, and which the house had just heard, for the purpose of proving that the resolution under consideration ought to pass. indeed that report, and the statement to which it referred, evinced in the most satisfactory manner that the information required by the resolution was absolutely necessary for the purpose of enabling the house to decide understandingly on the proposition, which it was expected would soon be brought forward, for abolishing the internal taxes. the secretary in his report had declared that the expense of collecting the internal taxes amounted nearly to twenty per cent. on the amount collected. it appeared, however, from the statements to which the secretary had alluded, that the tax on stills, the carriage tax, the tax on licenses, on sales at auction, and the tax on refined sugar, had been included in one class, and the expense of collecting all those taxes, without distinguishing the charges on each branch, had been stated to be nearly twenty per cent., whilst the expense of collecting the stamp duty, another branch of the internal taxes, was short of five per cent., varying only a fraction from the charges on the revenue from impost and tonnage. these statements might be satisfactory as far as they went, but it was obvious that in examining the branches of a revenue, with a view to the expense of collection, it became necessary to ascertain the precise charge which had fallen on each branch, and to obtain this necessary information, and which the report and statements had left defective, the resolution had been principally brought forward. and what had rendered this information peculiarly necessary at this time was the ground which had been taken in opposition to the internal taxes. the only argument which he had heard against those taxes, and which did not equally apply to the impost, was drawn from the great expense which had arisen in the collection. to enable the house, therefore, to decide whether the fact existed on which that argument had been founded, it became necessary to inquire in the manner proposed by the resolution whether the extraordinary expense with which those taxes had been charged might not be diminished, and whether the expense really existed in relation to each description of them. mr. g. said that he presumed no gentleman was prepared to say that the general expense of collection might not be diminished, and so far was he from believing that every branch of the internal taxes was subjected to the charge of nineteen or twenty per cent., he was perfectly confident that if gentlemen would agree to the resolution, the detailed statements, which the secretary would furnish in obedience to it, would prove that the expense of collecting certain branches of those taxes would fall much short of the sum at which the same has been estimated. the consent of the house, said mr. g., to every call for information, had formerly been so much a matter of course, that he should not have troubled the house with any remarks upon so plain a question as the present, had not the experience of this day proved, that gentlemen were not always to be indulged by the house with the information which they required; and the profound silence which had at this time been observed by those gentlemen who could either admit or reject the resolution, appeared to indicate a determination on their part to refuse the important and necessary information required by the resolution. he did presume, however, that upon this occasion the house would consent to the resolution, and more particularly, as the report of the secretary of the treasury, which had been read at the request of the gentleman from virginia, proved so clearly the necessity of passing it. mr. huger could not reconcile it with his sense of duty, to give a silent vote on the present occasion, nor could he but lament the strange and novel course of proceeding which gentlemen had thought proper to adopt. the intention, it would seem, was to repeal the internal taxes, right or wrong, and at all events; and so determined were gentlemen on carrying this favorite project into execution, that every thing like previous investigation, or even a wish to gain information on the subject, was hooted at and treated with the most sovereign contempt. every, the smallest, reduction on taxes of any other description, was avowedly to be excluded, nor was any proposition to this effect deemed worthy of even a moment's consideration. the measure proposed, however, interested in a very particular manner that part of the community he had the honor to represent. they paid, it was true, a small portion of the internal taxes, but the various other taxes upon salt, brown sugar, coffee, &c., and the duties on imposts generally, fell more immediately and far more heavily on them. was it not natural, therefore, that he should have some hesitation on the subject; that he should feel anxious to see this project thoroughly and completely investigated; that he should wish to receive every possible information which might either tend to satisfy his mind as to the expediency of repealing the internal taxes only, to the total exclusion of all others, or enable him to propose some other project, equally beneficial perhaps to the public at large, and which might at the same time accord better with the immediate interests of his constituents? his constituents, he was proud to say it, had ever contributed with alacrity and cheerfulness to the wants and exigencies of the union. they were prepared and willing, he was confident, to do so still; and he made not the least doubt but that they would readily subscribe to the exclusive repeal of the internal taxes, and submit, without a murmur, to the continuation of all the other taxes, however burdensome to themselves, provided they are convinced and well satisfied that this measure was fairly and impartially adopted for the welfare of the whole, and not for the benefit of the one at the expense of the other division of the country. it was for this purpose, therefore, that he wished the present motion to be adopted, and that he had desired the attention of the committee of ways and means to be directed, particularly, to those articles of importation and of general use and necessity, such as salt, sugar, coffee, common teas, &c. he was desirous that these and similar items should be compared with the carriage tax, the tax on licenses to retail spirituous liquors, and various other similar items of the internal taxes, and that the house might be furnished with such information with respect to both, as might enable him to judge, whether there might not be a partial repeal as well of some of the external as internal taxes, and not a total and exclusive reduction of the latter, as was contemplated; whilst all the former, however grievous and inconvenient, were to be retained. did he then ask any thing which was unreasonable or improper? could any possible inconvenience accrue from allowing him to obtain the information he desired? if not, why refuse to indulge him in what he deemed useful, and what (at the worst) could only be regarded by gentlemen themselves as superfluous information? was it fair; was it becoming; did it comport with that civility and politeness which was due from the one to the other, by citizens of a common country, assembled together for the express purpose of consulting upon their common interests, to treat thus cavalierly what must at least be allowed to be a respectable minority? with respect to the two only reasons which had ever been offered in favor of the exclusive repeal of the internal tax, viz: the expense and number of officers required to collect it, was it not the immediate and precise object of the resolution under debate to inquire whether it was not possible to devise some means by which these inconveniences might be obviated, or at least greatly lessened? and what objection could there be to the inquiry? were gentlemen perfectly and entirely convinced that nothing of the kind could be done, or were they apprehensive that the thing was in itself so feasible, that an inquiry of this kind would throw a stumbling-block in the way of the project already determined on, which although he would freely acknowledge, that as an abstract proposition it was expedient as much as possible, and to collect your taxes at as small an expense, and by means of as few agents as conveniently could be done, yet there was another still more important maxim which ought never to be lost sight of: this was, that the burdens of the government, as well as the advantages which flowed from it, should be fairly, equally, impartially, and equitably distributed among every description of the citizens, in whatever part of the country they resided. if, therefore, it did happen, that a few more officers and a somewhat greater percentage were required to collect the taxes in one than in another part of the country, this alone would most certainly and indubitably not be a sufficient reason to do away all the taxes in the one, and throw the whole burden of the government on the inhabitants of the other. mr. rutledge confessed himself much puzzled by the new forms of proceeding this day adopted. ever since he had had the honor of a seat in congress, it had been invariably the practice, when measures were proposed not agreeable to the majority, for them to offer their objections to them. this had ever been the practice, and the experience of its convenience offered strong reasons for its continuance. when the majority stated their objections to any measure, the minority in sustaining it answered them fully; thus, both sides acted understandingly, and when the proceedings of the national legislature went out to the people, they were at the same time informed of the reasons under which their representatives had legislated. this had not only been the usage in congress, but the form of proceeding in all representative bodies with whose history we are acquainted. even in the british house of commons, which gentlemen had often and emphatically styled a mockery of representation, so great is the respect paid to public opinion, that the majority deem it their duty to assign in debate the reasons of their conduct. although the minister in england has quite as much confidence in the strength of his majority as gentlemen here can have in theirs, yet, in feeling power, he does not forget right, and his regard for public opinion is so great, that he never secures his measures by a silent vote. in these days of innovation, we, it seems, are to pursue a different course. when the resolution offered this morning by his honorable friend from new york (mr. morris) was taken into consideration, not a voice was raised against it. this profound silence made us expect a unanimous vote; but, in consequence, he supposed, of some outdoor arrangements, it was rejected by this silent majority. he had seen many deliberative assemblies, but never before witnessed such a procedure. he would not say whether this was respectful towards the minority, who, we have been told from high authority, have their equal rights--he would not say whether it was dignified as it regarded the majority, but, without pretending to any spirit of prophecy, he would venture to say it could not be deemed politic or wise by the people of this country. when the doors of congress were open, and persons admitted to take the debates, the people expected to be fully informed of the views and motives which governed the votes of their representatives. but it seems our constituents are not to be treated with this heretofore common civility. in proposing measures we are obliged to guess at what gentlemen feel against them, (for they say nothing,) and to defend them, without knowing in what they are objectionable to those who govern in this house. this kind of governing is but ill calculated to produce harmony, to restore social intercourse, and to heal the wounds inflicted on society by the spirit of party. the question was taken, and it passed in the negative--yeas , nays . _duties on imports._ mr. rutledge called up for consideration the resolution which he moved on friday, on which the previous question was then taken, viz: "_resolved_, that the committee of ways and means be instructed particularly to inquire into the expediency of reducing the duties on brown sugar, coffee, and bohea tea." mr. griswold hoped the resolution would be decided upon. mr. rutledge hoped the reference would obtain. these articles paid the highest rate of duties and were of the first necessity. in looking over the rates of duties on imports, he saw many articles that were taxed enormously high. those in the resolution were of the first necessity, the duty high, and laid when they were at war prices; while the people received war prices for their produce, they could with convenience pay for these articles, though high. the object of the resolution was merely to inquire, and he did not see how it could interfere with any object gentlemen have in view. mr. dana.--i beg liberty to tender the homage of my profound respects, for the dignified situation in which gentlemen have now placed themselves, and congratulate them on their silence. there is something peculiarly impressive in this mode of opposing every thing that is urged. it is seldom that gentlemen have exhibited such a remarkable appearance of a philosophical assembly. "that dumb legislature will immortalize your name"--is said to have been the language of a certain distinguished general to a certain nominal abbé, who has been represented as having pigeon-holes full of constitutions of his own making. during the memorable night at st. cloud, when the french council of ancients, and council of five hundred, were adjourned--to meet no more--it may be recollected, the powers of executive government were provisionally committed to three persons, styled consuls, and two of them were the general and the abbé. from each of the councils, twenty-five members were selected, to compose a commission, and assist the provisional consuls in preparing a constitution for france. of the numerous projects of constitutions presented by the abbé, it is said no part was finally adopted except the plan of a dumb legislature. this, the general instantly seized with apparent enthusiasm, exclaiming to the abbé, "that dumb legislature will immortalize your name!" and it was determined to have a _corps legislatif_ that should vote, but not debate. it was scarcely to be expected that any thing like this would soon take place in our own country. but it is the prerogative of great geniuses, when in similar circumstances, to arrive at the same great results, although with some difference in the process. nor can i forbear offering my tribute of admiration, for the genius who has projected a mode of proceeding among us, that so nearly rivals the plan adopted in france. i know not to whom is due the honor of this luminous discovery. after ascribing to him, however, all merited glory, permit me to examine the force of the argument relied on by gentlemen in opposition to the proposed resolution. their argument is silence. i hope to be excused if i do not discuss this subject in the most satisfactory manner; as silence is a new species of logic, about which no directions have been found in any treatise on logic that i have ever seen. it will be my endeavor to reply to gentlemen by examining some points which may be considered as involved in their dumb arguments. one of these points is--that certain members of this house have pledged themselves to their constituents, for repealing all the internal taxes. they may have declared their opinions to this effect, before the election; and, being chosen under such circumstances, may now deem themselves bound in honor not to vary. the terms assented to between their constituents and themselves may, therefore, be viewed by them as the particular rule of their own conduct. but is this house to be regarded in the same light with the english house of commons, during the early period of their history, when the knights of shires, and the representatives of cities and boroughs, were instructed on what terms they should bargain with the crown for special privileges, and were limited to the price agreed on by their constituents? the situation of gentlemen who have thus pledged themselves to vote for repealing the internal taxes, must be irksome, indeed, if on mature consideration they should believe it more proper and more beneficial for the country to have other taxes reduced. those who have entered into a stipulation of this sort, so as to feel it as a point of honor, are so peculiarly circumstanced that they might think it too assuming in me, were i so much as to express a desire that they would vote for reducing some of the duties on imports, instead of repealing all the internal taxes. it is to be hoped, the number of members who have pledged themselves in this manner, does not exceed twenty-five or thirty. another point involved in this argument of silence is, that other gentlemen may have pledged themselves to these, and given them a promise of support on this subject. it must be acknowledged that this was more than was required on account of their seat in this house. if any gentlemen have absolutely so pledged themselves to their constituents, it must indeed be difficult to convince them. on this point, their minds must be so differently constituted from mine, that there does not seem to be any common principle between us that can be assumed as the basis of argumentation. another point is, the executive has recommended a repeal of all the internal taxes, and not any reduction of the impost. and will gentlemen act upon this as a sufficient reason for their conduct? is it now to become a principle, that the executive is to deliberate, and the legislature to act, and that no measure is to be adopted unless proposed by the executive? would it not be better for the country to abolish this house, and to avoid useless expense, if it is to be nothing more than one of the ancient parliaments of france, employed to register the edicts of a master? the silence of the gentlemen may also be considered as having relation to their great desire for the harmony of social intercourse. to prevent its being disturbed in the house by debating, they may have come to a determination that all the great questions shall be settled by gentlemen of a certain description, when met in nocturnal conclave, and be only voted upon in this place. if such be the fact, it seems but reasonable that any of the members of this house should be admitted in meetings of the conclave, as delegates from the territorial districts are admitted into congress, with a right to debate, although not to vote. if, however, this is thought too much, gentlemen should at least have galleries provided, so that other members of the legislature might be admitted as spectators, and have the opportunity of knowing the reasons for public measures. the question was called for, when mr. eustis begged the speaker would state it, as, in listening to the arguments of the gentleman from connecticut, he had forgotten it. mr. rutledge said he was much pleased by the question of the honorable gentleman from massachusetts. when gentlemen ask, what is the question? it is to be hoped that they will respect its merits; but, from the scene this day acted, he had learned that the only inquiry with gentlemen would be, from what side does this come? the question was then taken by yeas and nays, and lost--yeas , nays . tuesday, january . _territorial government for the district of columbia._ mr. sprigg reported a bill for the government of the territory of columbia. [the bill establishes a legislature, chosen by the taxable citizens of the united states one year resident in the territory, composed of a house of representatives, to consist of twenty-five members, seven whereof to be chosen by the district of rock creek, seven from the part west of rock creek, and eleven by the county of alexandria. the governor to be appointed by the president of the united states. the territory to pay the legislature, and the united states the governor. the judges to hold their offices during life, unless removed by the president on the application of two successive legislatures.] referred to the committee of the whole house on tuesday next. a memorial and remonstrances of sundry inhabitants of the county and town of alexandria, in the district of columbia, was presented to the house and read, praying that congress will not agree to any plan, or pass any bill respecting the government of the said district, which shall, by the establishment of a subordinate legislative or subordinate executive, or otherwise, tend to unite under its power, the two parts of the district, as separated by the river potomac.--referred to the committee of the whole house last appointed. thursday, january . _lieutenant sterret, his officers and crew._ the house resolved itself into a committee of the whole on the report of a select committee of the nineteenth instant, on the resolutions of the senate, in the form of joint resolutions of the two houses, "in respect to lieutenant sterret, the officers, and crew of the united states' schooner enterprise;" to which committee of the whole house were also referred the said resolutions of the senate; and, after some time spent therein, the speaker resumed the chair, and mr. davis reported that the committee had had the said report and resolutions under consideration, and directed him to repeat to the house their disagreement to the said resolutions of the senate, and their agreement to two resolutions contained in the report of the select committee thereupon, in the form of joint resolutions of the two houses; which he delivered in at the clerk's table. the house then proceeded to consider the said report and resolutions: whereupon, the resolutions of the senate, to which the committee of the whole house reported their disagreement, being twice read at the clerk's table, in the words following, to wit: _resolved by the senate and house of representatives of the united states of america in congress assembled_, that, as a testimony of the high sense they entertain of the nautical skill and gallant conduct of lieutenant andrew sterret, commander of the united states' schooner enterprise, manifested in an engagement with, and in the capture of, a tripolitan corsair, of superior force, in the mediterranean sea, fitted out by the bey of that regency to harass the trade, capture the vessels, and enslave the citizens, of these states, the president of the united states be requested to present lieutenant sterret with a gold medal, with such suitable devices thereon, as he shall deem proper, and emblematic of that heroic action, and the mercy extended to a barbarous enemy, who three times struck his colors twice, and recommenced hostilities: an act of humanity, however unmerited, highly honorable to the american flag and nation; and that the president of the united states be also requested to present to each of the lieutenants, porter and lawson, of the navy, and lieutenant lane of the marines, who were serving on board the enterprise in the engagement, and contributed, by their gallant conduct, to the success of the day, a sword, with such suitable devices as the president may deem fit. "_be it further resolved_, in consideration of the intrepid behavior of the crew of the enterprise, under the orders of their gallant commander, and their receiving no prize money, the corsair being dismantled and released after her capture, that one month's pay, over and above the usual allowance, be paid to all the other officers, sailors, and marines, who were actually on board and engaged in that action; for the expenditure of which charge congress will make the necessary appropriation." the question was taken that the house do concur with the committee of the whole house in their disagreement to the same, and resolved in the affirmative. the resolutions contained in the report of the select committee, to which the committee of the whole house reported their agreement, being twice read, in the words following, to wit: "_resolved by the senate and house of representatives of the united states of america in congress assembled_, that they entertain a high sense of the gallant conduct of lieutenant sterret, and the other officers, seamen, and marines, on board the schooner enterprise, in the capture of a tripolitan corsair, of fourteen guns and eighty men. "_resolved_, that the president of the united states be requested to present to lieutenant sterret a sword, commemorative of the aforesaid heroic action; and that one month's extra pay be allowed to all the other officers, seamen, and marines, who were on board the enterprise when the aforesaid action took place." the question was taken that the house do concur with the committee of the whole house in their agreement to the same, and resolved in the affirmative. _ordered_, that the said resolutions be engrossed, and read the third time to-morrow. monday, february . _imprisonment for debt._ mr. smilie called up his resolution that a committee be appointed to revise the laws respecting imprisonment for debts due the united states. his objects, he said, were two; to secure the debtor's property, and to inflict some penalty or provide some remedy instead of imprisonment for life. mr. rutledge was opposed to imprisonment for life, where the debtor gave up his whole property, and was unable to pay all. he had known, in south carolina, revenue officers imprisoned for debts due the united states, who had been many years confined; men of good character, men of honesty, but who, through ignorance of transacting certain business, or their misfortunes, were unable to pay. he knew an individual of that state who had applied to that house for relief; his petition was referred to the secretary of the treasury; the secretary felt a delicacy in interfering in the case; the petition was not granted; and the person had now been in jail five years, though his inability to pay did not arise from having wasted the public money, or from aught but misfortune; for he was acknowledged to be a man of good character. he was averse to such cruelty. hence the necessity of making some provision that the innocent, when distinctions can, as in most instances, be made, may not be subjected to cruel punishments, that were of no benefit to the united states. why send him to jail? why lock him up there? why prevent his being able to support his family? mr. smilie.--it is the case that when you exceed in making your laws what is reasonable, those laws, as the present concerning debtors to the united states, will not be executed. the present law cannot be put in execution. he wished some sufficient penalty. this was not the proper stage to give his sentiments; were it, he should say, he thought the defaulter ought to give up the property, and perhaps be imprisoned a period. but the legislature are not the proper judges, and ought not to interfere; the legislative and judicial departments should be kept separate. we want some uniform law, operating on all according to their demerit. the subject was postponed till to-morrow. friday, february . _state balances._ mr. thomas called up his motion respecting state balances, which is as follows: "_resolved_, that a committee be appointed to inquire into the expediency of extinguishing the claims of the united states for certain balances, which, by the commissioners appointed to settle the accounts between the united states and the individual states, were reported to be due from several of the states to the united states, and that the said committee have leave to report by bill or otherwise." mr. bayard hoped the resolution would prevail. the debtor states, not satisfied with the settlement made by the board of commissioners, had asked for information respecting the grounds on which it had been made. the information had been imperiously refused. in his opinion it was but right, if the debtor states did not dispute the validity of the debts due to the creditor states, that they should agree to expunge the claims against the debtor states. indeed, he had been assured that the commission was not instituted with a view of sustaining any charges against the debtor states, but for ascertaining the amount due to the creditor states, and funding them; and he believed it had been so understood at the time. this was an affair not determinable by the ordinary rules applied to individual cases. many of the states, not expecting a settlement, had kept no accounts or vouchers; and however great the supplies they contributed under such circumstances, they received no credits for them; while those states which had been most careful in the preservation of vouchers, shared a different and a better fate. mr. b. believed it was the true policy of the creditor states to agree to the extinguishment of these balances. he believed they never could be paid, because no state allowed them to be due. they would not, therefore, be paid voluntarily; and he knew of no force in the united states to compel payment. why, then, keep up a source of irritation, which could do no possible good, and which could only tend to repel some states from that constitution, which we all ought to endeavor to make the object of general affection? mr. southard said, he had yet heard no reason that convinced him that the resolution offered was just or proper. it would be recollected that this contract was made under the confederation. in the establishment of our independence, great and various exertions had been made. in the contributions made, great inequalities took place, which were unavoidable. generally, where the war existed, the states became creditor states. it was just that those states which had contributed more than their share should be repaid, and that those who had paid less should make up the deficiency. if the debtor states were not to pay their balances, why settle the accounts? to relinquish the payment would be, in his opinion, not only unjust but unconstitutional. the constitution says, "all debts contracted, and engagements entered into, before the adoption of this constitution, shall be as valid against the united states, under this constitution as under the confederation;" and the present government had recognized those debts as just. the gentleman from delaware says, the settlement is not just. but this was barely the suggestion of his own mind. to sustain it, he ought to have shown its defects; but this he had not done. mr. mitchill was in favor of the resolution, as he believed a refusal to adopt it would be attended with unpleasant sensations. he judged so from an historical review of the business. the several states had associated together for their common defence, and, in the eye of equity, whatever that defence required, should constitute a common charge. the accounts of expenses thus incurred were not settled till the new government was established. that government fixed the mode of settlement; it appointed a board of referees, to report the debts and credits of the respective states. in this report, it was the fortune of certain states, notwithstanding the greatness of their contributions, to be reported debtor states. these states became debtors from the independent spirit with which they asserted their sovereign rights. not relying on the general contributions, they furnished great supplies without making any charge to the union; by exerting all their strength, they paid as they went, and preserved no vouchers of what they paid. this, he averred, was the case as to the state which he had the honor in part to represent; a state as willing as able to contribute, and which did contribute to a great extent; but which had neglected to preserve her vouchers, the preservation of which would have made her a creditor state. he believed, therefore, that in equity, the states were not bound to pay these balances. but to this it is replied, the award is final. he would not agree to that; he denied it. besides, there was a want of coercive power in the united states to enforce those demands. from this consideration alone, we ought to proceed with lenity, and endeavor to make the settlement a peaceable one. as in other circumstances, we ought to make a virtue of necessity. mr. s. smith said, he did not rise to take any part in the debate, but in order to bring the subject directly before the committee. to do which, he moved so to amend the resolution as to make it read, "resolved, that it is expedient to extinguish the claims," &c. mr. lowndes hoped the amendment would not be agreed to. he did not see the expediency of volunteering a relinquishment of the claims established against several of the states. the amendment was calculated to take the committee by surprise. the original resolution went merely to consider the expediency of a relinquishment; the amendment involved the principle itself. mr. hill was desirous the amendment should not be made, not from any indisposition himself to agree to it, but from a regard to the sentiments of other gentlemen. even if it was ascertained that these debts had arisen on a just consideration, yet, in his opinion, they ought to be extinguished, from the principle that, in our government, whatever hazarded the harmony of the union, ought to be avoided. precedents were not wanting in which sacrifices were made to this principle. he alluded to the quieting the claims under connecticut rights. but, whatever might be the general ideas on this subject elsewhere, he knew not a man in north carolina, who did not believe the adjustment iniquitous. to show the committee how the citizens of that state felt, he would state a case that had occurred before the board of commissioners. two claims had been made, both for the same amount and the same description of supplies, one on one side and one on the other side, of pedee river; one in north, and the other in south carolina; and, in one case, seven shillings had been allowed, and in the other, only sixpence for the bushel of wheat. the business generally was entitled to the attention of congress. it had, in fact, already been attended to at different times. new york had extinguished eight hundred thousand dollars of her balance under certain provisions applied to her case. mr. bacon said, if the object of the motion was to go into a new liquidation of the old accounts between the united states and the several states, it would not only take up every day of the present session, but the work would be left unfinished for our successors. these debts had been incurred in a common cause, in which each state was equally interested, and towards which each state was bound equally to contribute. when congress made requisitions on this principle, they were accompanied by a promise that there should be a final liquidation. this liquidation was made; the settlement was complete. but this settlement is now objected to, and what is to be done? why we must annul the contract. this might satisfy some of the states, but he was sure it would dissatisfy others. he saw, therefore, no end to be answered by the motion. we must either set aside all that had been done, and begin _de novo_, to which this body is incompetent, or rest satisfied with what is already done. mr. r. williams observed, that since he had held a seat in the house, this subject had been almost every session called up. the more he had heard it discussed, the more he became convinced of the necessity of getting it out of the way. he found that whenever it was brought up, all was imagination. one state contended that it had contributed largely, and another, that its exertions had not been surpassed. we are asked, why relinquish these balances before we are solicited by the states? he would reply that north carolina never had recognized the debt, and, in his opinion, never would apply for its extinguishment. he was in favor of the amendment, because the principle ought to be decided here, and not in a select committee. what, indeed, could such committee report? there were no vouchers or books whereon the settlement had been made to be got at. all they could do, then, would be to report the balances alleged to be due, which any member could at any time learn. it seemed almost useless to go into arguments to show the injustice of the claim, and of consequence, the justice of the resolution. it had been justly said, that those states which had contributed the most, had, by the report of the commissioners, the most to pay; and this was peculiarly so with the state of north carolina. mr. w. had forborne to dwell on the injustice of these demands. but were he to enter on that branch of the discussion, he should say that the very act of destroying all the vouchers was of itself sufficient to justify any suspicion. he should say, that for what, in some states, there had been an allowance of one hundred pounds, north carolina had not been allowed twenty shillings. could, then, gentlemen talk of moral obligation, and say that this was a just debt? mr. t. morris said, it was contended that the accounts should be opened anew and re-examined. the fears, therefore, of the gentleman from massachusetts, were entirely visionary. the resolution was a simple one. it proposes to inquire into the expediency of doing away these debts. the amendment goes to determine the principle here. he thought it proper the principle should be settled here. but gentlemen say they want information. if so, after the amendment is agreed to, they may move for a postponement. if the amendment were carried, he would himself move a postponement. it had been said that new york had had eight hundred thousand dollars of her debt remitted by the united states. but how did the case really stand? new york had availed herself of the act of congress, not because she acknowledged the debt to be just, but because she preferred doing something to remaining in the situation towards the united states in which she stood. it was strange, then, to hear gentlemen say that new york had been favored. what was the fact? north carolina, according to the gentleman, had not, and would not, pay one cent; and new york had discharged a greater sum than was due by all the other debtor states, with the exception of delaware. she was, therefore, instead of being favored, placed in a worse situation than any other state. it was from the existence of this state of things that he wished a final decision to be made this session. new york having agreed to make certain payments to the united states, it was important to her to know whether the united states meant to enforce payment by the other states. her situation would be truly unfortunate, if after agreeing to pay, the united states suffered her claims against the other states to sleep. she would not only have to pay her quota of the debts, but would see no prospect of deriving her share of benefit from the payments of the other debtor states. mr. macon said the subject was a very old one, which had occupied much time every session for many years, and he thought it would be as well to try the question now as at any other time. no information of a select committee could throw any new light upon it. there was a fact which ought to have great weight with the committee. one of the commissioners who made the settlement, who was a member of this house, had, after the settlement, proposed a resolution to extinguish the balances of the debtor states; and he had stated, as a reason for this measure, that the principle adopted by the board had operated very harshly upon particular states. mr. m. had it from authority not to be questioned, that in the settlement by the commissioners, teams, with the usual number of horses, had not produced twenty shillings. this subject had hung over our heads for eight years, and no scheme was yet devised for collecting the balances. how could they be collected? congress had, it is true, authorized expenditures by the states in the erection of fortifications; but this very act was a tacit confession of the impracticability of getting the money into the public treasury. as to a settlement with north carolina, it was involved in great difficulty. in the act of cession of lands by that state to the united states, it was provided that the territory ceded should be pledged to pay a proportional share of the balance due the united states. how could that share be estimated? mr. m. regretted that this subject had been brought up. he should not himself have been for bringing it up, for he thought the claims of the united states not worth a rush. the truth was, the states had all exerted themselves in one great and common cause; they had done their best; they had acted with great glory. as to the state which he represented, he would ask if the first blood that had been spilled after that shed at boston was not in north carolina? and that was the blood of brother against brother. he desired not, however, to make comparisons, which were always unpleasant, but to show that north carolina had no reason to shrink from an inquiry which would demonstrate that she had fully contributed her share in the common cause, without meaning to assert that she had done more than other states. let, then, congress decide at once, and abandon the claims altogether, or devise some plan for collecting them, that we may know how we stand. mr. dana said, i hope the amendment will not be agreed to. however gentlemen may be possessed of a wholesale intellect, that enables them to decide on interesting questions without a moment's reflection, i confess i am not blessed with so happy an intuition. i do not know that i have ever been called upon to form an opinion on this subject. as to a reference of it to a committee, i think their investigation may be useful, and after we get that, we may take time to decide. but now the plan is changed, and we are called upon to decide at once the principle. this mode of transacting business may be called an economy of time. you may give it the name, but it is not the substance. for my part, i desire to proceed according to our old plan, and go through the slow process of investigation. this is my way, and gentlemen may rest assured that this mode of hurrying business is not the way to save time, but to lose it. mr. bayard declared himself in favor of the amendment, and he could not think, notwithstanding the remarks of his honorable friend from connecticut, that any gentleman in the house was unprepared to vote upon it. the subject had been frequently discussed, and he believed that the house was then as well prepared for a decision as they would be for a century to come. it involved but a single principle; and, as to information, he could scarcely tell what information was wanted. he felt much of the indifference of the gentleman from north carolina, (mr. macon.) he was sure the united states had neither the right, nor the power to recover these balances; and he repeated it as his opinion, that it had not been the original intention that the debtor states should pay them. will gentlemen recollect that the commission was instituted under the old confederation. had congress, then, a right to do any thing to bind the sovereignties of the independent states? all they could do was to pass resolutions making requisitions, which the states might or might not comply with. they could appoint commissioners to settle the accounts, but could they impose the debts upon the states? no, they could not. it, therefore, never could have been contemplated that they would establish those debts. the only effect that could have been contemplated, was, that the creditor states might rely that, on a settlement, congress would assume their balances. on the question being put, the amendment was lost--yeas , nays . when the original resolution for referring to a select committee the consideration of the expediency of extinguishing the balances was carried. _ordered_, that mr. thomas, mr. bayard, mr. dana, mr. hill, and mr. butler, be appointed a committee, pursuant to the said resolution. and the house adjourned. tuesday, february . _judiciary system._ the house then went into committee of the whole on the judiciary bill from the senate.[ ] mr. henderson.--i should not rise to offer my opinion on the great question before the committee, were i not placed in a situation different from that in which i have been since i have had the honor of a seat in this house. the legislature of the state of north carolina, one of whose representatives i am on this floor, have seen proper to instruct their senators and to recommend to their representatives in congress, to use their exertions to procure a repeal of the law passed the last session of congress, for the more convenient organization of the courts of the united states, and the bill on your table has for its object the repeal of this law, and as i shall probably vote against its passage, a decent respect for the opinions of those who have framed and sent forward those resolutions, demands that i should give the reasons which influence my conduct. the people of america have obtained and established that the powers of government shall be vested in three great departments; the legislative, the executive, and the judicial. they have said that there shall be a house of representatives, the members of which shall be chosen by the people of the several states every second year. though this house is composed of members chosen by the people immediately; though they can have no other interest than the great community from which they were sent; though they must return to the common mass in the short period of two years; yet enlightened america did not see proper to intrust the power of making laws to this body alone; they knew that the history of man, and the experience of ages, bore testimony against the safety of committing this high power to any one assembly not checked by any other body. they have therefore erected another branch of the legislature, called the senate, the members of which are not to be elected by the people immediately, but by the sovereignties of the several states; they are to be chosen for six years, and not for two; and the qualifications requisite to entitle those to a seat is different from that of a member of this house. to these bodies are given the power of initiating all laws; but after a bill has passed both of these houses, before it becomes of binding obligation on the nation, it must be approved of by the president; it is a dead letter until life is given by the executive. the president is elected not by the people, not by the legislatures of the several states, not by either house of congress, but by electors chosen by the people. he is to hold his office during four years. this is the second great department of the government. it will be easily discovered from this cursory view of our constitution, the caution and jealousy with which the people have conferred the power of making laws, of commanding what is right, and prohibiting what is wrong. but, sir, after this law was made, after its authoritative mandate was acknowledged by the nation, it became necessary to establish some tribunal to judge of the extent and obligation of this law. the people did not see proper to intrust this power of judging of the meaning of their laws, either to the legislative or to the executive, because they participated in the making of these laws; and experience had shown that it is essential for the preservation of liberty that the judicial and legislative authorities should be kept separate and distinct. they therefore enacted a third department, called the judicial, and said that "the judicial power of the united states shall be vested in one supreme court, and in such inferior courts as congress may from time to time ordain and establish. the judges both of the supreme and inferior courts shall hold their offices during good behavior, and shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office." it is admitted, i understand, by all parties, by every description of persons, that these words, "shall hold their offices during good behavior," are intended as a limitation of power. the question is, what power is thus to be limited and checked? i answer, that all and every power which would have had the authority of impairing the tenure by which the judges hold their offices, (if these words were not inserted,) is checked and limited by these words; whether that power should be found to reside in congress, or in the executive. these words are broad and extensive in their signification, and can only be satisfied by being construed to control the legislative as well as the executive power. but gentlemen contend that they must be confined to limiting the power of the president. i ask gentlemen, what is there in the constitution to prove their signification to this end alone? when you erect a court and fill it with a judge, and tell him in plain, simple language, that he shall hold his office during good behavior, or as long as he shall behave well; what, i beseech you, sir, will any man, whose mind is not bewildered in the mazes of modern metaphysics, infer from the declaration? certainly that the office will not be taken from him until he misbehaves; nor that he will be taken from the office during his good behavior. under this impression he enters upon his duty, performing it with the most perfect satisfaction to all persons who have business before him; and the legislature, without whispering a complaint, abolishes the office and thereby turns out the judge. the judge is told this is no violation of the compact; although you have behaved well, although we have promised that as long as you did behave well you should continue in office, yet, there is now no further necessity for your services, and you may retire. these words, "during good behavior," are intended to prevent the president from dismissing you from office, and not the legislature from destroying your office. do you suppose, sir, that there is a man of common understanding in the nation, whose mind is not alive to the influence of party spirit, that would yield his assent to this reasoning? i hope and believe there is not. but, sir, how is it proved that the president would have had the power of removing the judges from their office, if these words, "during good behavior," had not been inserted in the constitution? are there any words in that instrument which give the president expressly the power of removing any officer at pleasure? if there are, i call upon gentlemen to point them out; it does not result from the fashionable axiom, that the power which can create can destroy. the president can nominate, but he can appoint to office only by the advice and consent of the senate. therefore, it would follow, if the power of displacing results from that of creating, that the senate should participate in displacing as well as creating officers. but however this may be, it is certainly a mere constructive power which he has exercised, because the legislature have, from motives of expediency, acknowledged that he had it. if the constitution does not necessarily give the president the right of removing officers at pleasure, and if that right depend upon legislative acts or constructions, where would have been the necessity for inserting these emphatic words as a check and limitation of executive power, where without them the president has no such power? you are taking great pains to control a power which does not exist. the persons who framed our constitution knew that a power of removal in ordinary cases must exist somewhere. they took care, therefore, that in whatever hands it might fall, the language of the constitution respecting the tenure of the office of a judge should be co-extensive with the whole power of removal, whether it should reside in one or in more hands. but it has been said that the powers of each congress are equal, and that a subsequent legislature can repeal the acts of a former; and as this law was passed by the last congress, we have the same power to repeal it which they had to enact it. this objection is more plausible than solid. it is not contended by us that legislatures who are not limited in their powers have not the same authority. the question is not what omnipotent assemblies can do, but what _we_ can do under a constitution defining and limiting with accuracy the extent and boundaries of our authority. the very section in the constitution (sec. third, art. first) which i have read, is a proof against the power of every congress to repeal the acts of their predecessors. in the latter part of the eighth section it is proposed that the judges shall receive for their services a compensation which shall not be diminished during their continuance in office; and yet the salary was ascertained and fixed by a former congress. the same observations may be made with respect to compensation for the president, which can neither be increased nor diminished during the period for which he shall have been elected. it is not competent for this congress to vary the compensation to him which has been fixed by a prior legislature. it is clearly seen, upon a little investigation, that the position which gentlemen take is too extensive, and leads immediately to a destruction of the constitution. it does away all check, and makes the legislature omnipotent. it has been asked, that if a corrupt and unprincipled congress should make an army of judges, have not a subsequent congress the right of repealing the law establishing this monstrous judicial system? i answer that they have not; the same mode of reasoning which attempts to prove this right from an abuse of power will also prove that you may lessen the compensation of your judges. may not equal oppression be imposed upon the people by giving your judges exorbitant salaries as by increasing their numbers? may not the same corrupt and unprincipled motive which would lead men to the raising of an army of judges lead them to squander the public money? and may they not, instead of giving their judges two thousand dollars a year, give them two hundred thousand? and yet, sir, if it were to take place, i know of no authority under the constitution to lessen that exorbitant compensation. the government of our country is predicated upon a reasonable confidence in those who administer our public affairs. they must have the power of acting for the public welfare, and this would never have been given them if the possible abuse of this power were a sufficient reason for withholding it. again, sir, the construction which gentlemen on the other side of the house contend for, tends to the concentration of legislative and executive powers in the same hands. if congress, who have the power of making laws, can also displace their judges by repealing that which creates the offices they fill, the irresistible consequence is, that whatever law is passed the judges must carry into execution, or they will be turned out of office. it is of little importance to the people of this country whether congress sit in judgment upon their laws themselves, or whether they sit in judgment upon those who are appointed for that purpose. it amounts to the same despotism; they in fact judge the extent and obligations of their own statutes by having those in their power who are placed on the sacred seat of justice. whatever the legislature declares to be law must be obeyed. the constitutional check which the judges were to be on the legislature is completely done away. they may pass ex post facto laws, bills of attainder, suspend the writ of habeas corpus in time of peace, and the judge who dares to question their authority is to be hurled from his seat. all the ramparts which the constitution has erected around the liberties of the people, are prostrated at one blow by the passage of this law. the monstrous and unheard of doctrine which has been lately advanced, that the judges have not the right of declaring unconstitutional laws void, will be put into practice by the adoption of this measure. new offences may be created by law. associations and combinations may be declared treason, and the affrighted and appalled citizen may in vain seek refuge in the independence of your courts. in vain may he hold out the constitution and deny the authority of congress to pass a law of such undefined signification, and call upon the judges to protect him; he will be told that the opinion of congress now is, that we have no right to judge of their authority; this will be the consequence of concentrating judicial and legislative power in the same hands. it is the very definition of tyranny, and wherever you find it, the people are slaves, whether they call their government a monarchy, republic, or democracy. mr. chairman, i see, or think i see, in this attempt, that spirit of innovation which has prostrated before it a great part of the old world--every institution which the wisdom and experience of ages had reared up for the benefit of man. a spirit which has rode in the whirlwind and directed the storm, to the destruction of the fairest portion of europe; which has swept before it every vestige of law, religion, morality, and rational government; which has brought twenty millions of people at the feet of one, and compelled them to seek refuge from their complicated miseries in the calm of despotism. it is against the influence of this tremendous spirit that i wish to raise my voice, and exert my powers, weak and feeble as they are. i fear, sir, on the seventh of december, it made its appearance within these walls, clothed in a gigantic body, impatient for action. i fear it has already begun to exert its all-devouring energy. have you a judiciary system extending over this immense country, matured by the wisdom of your ablest and best men? it must be destroyed. have you taxes which have been laid since the commencement of the government? and is the irritation consequent upon the laying of taxes worn off? are they paid exclusively by the wealthy and the luxurious part of the community? and are they pledged for the payment of the public debt? they must be abolished. have you a mint establishment, which is not only essentially necessary to protect the country against the influx of base foreign metals, but is a splendid attribute of sovereignty? it must be abolished. have you laws which require foreigners coming to your country to go through a probationary state, by which their habits, their morals, and propensities may be known, before they are admitted to all the rights of native americans? they must be repealed, and our shores crowded with the outcasts of society, lest oppressed humanity then should find no asylum on this globe! thursday, february . a message was received from the president of the united states, transmitting a letter from the secretary of war on the subject of certain lands in the neighborhood of our military posts, on which it might be expedient for the legislature to make some provisions. a letter was also received from the governor of indiana, on the same subject. the said message and letter were read, and ordered to lie on the table. _the judiciary bill._ the house again resolved itself into a committee of the whole house on the bill sent from the senate, entitled "an act to repeal certain acts respecting the organization of the courts of the united states and for other purposes." mr. stanley.--mr. chairman, every measure which is brought under the consideration of a legislature must first be tested by its expediency. unhappily, in the present instance, another question arises--its constitutionality. i will endeavor, concisely, to examine the subject on both those points. and, first, as to the expediency of the measure. in order to form a correct estimate between the present judiciary system of the courts of the united states and that for which it was substituted, it is proper to take a comparative view of both. under the former system, there were six judges of the supreme court of the united states, who held two sessions of the supreme court in each year, at the seat of government. those judges also held in each state a circuit court, two terms in each year, in which the judge of the district was associated with the circuit judge. the organization of the district courts having jurisdiction, principally, of matters affecting the revenue and admiralty causes, not being connected with the present question, need not be examined. from the errors of this system resulted, first, a delay of justice. the judges bound to hold courts in succession at remote parts of the continent, were continually travelling; from the variety of accidents to which travellers are subjected in this country, from the condition of roads and overflowing of rivers, it frequently happened that the judges failed in their attempts to get to the courts, or arrived so late that little business was done. suitors, jurors, and witnesses, were subjected to the trouble and expense of attending courts without the accomplishment of their business; hence resulted a delay of justice. in the state to which i belong, during the few years existence of the former system, this was the case frequently. another great evil resulting from that system was, its tendency to lessen the character and respectability of the federal bench. those best acquainted with the profession of the law will most readily admit, that even a life of patient study is unequal to the complete attainment of principles and rules; and that much labor and industry are necessary to preserve that which is gained. consequently, that extent of legal knowledge, correctness of judgment, and respectability of character, which should designate the persons qualified for this important trust were seldom to be found, but in men far advanced in years. men possessing these qualifications, not inured to labor, are seldom equal to the fatigue of their duty; or, if at the time of appointment, fast approaching to the infirmities of age, were not to be expected to relinquish the enjoyments of private life for an office, which, however honorable, subjected them to the fatigue of a day laborer. the office, with its incumbrances, was, as it were, offered to the lowest bidder. and men best qualified to honor the bench, were driven from it. true it is, men have been found eminently uniting virtue and talents, who have accepted the office under all its distressing circumstances, but we owe this rather to their patriotism than to the advantages of the situation. let it also be remembered that, in some instances, gentlemen who would have adorned the seat of justice of any country, were compelled to relinquish their seats; and in others, refused to accept the appointment. another error of that system was, that the judges of the supreme court, the court in the last resort, before whom the errors of the inferior circuit courts were to be corrected, were the same men who presided in those circuit courts. with great deference for the opinions of gentlemen who prefer that system, i pronounce my opinion, that its errors were radical; that those who justly estimated the importance to our interest and national character, of a speedy and correct administration of justice, ought to have desired a change. the present system has happily obviated these errors. the states are divided into six circuits; in each state is appointed one judge, called a circuit judge; the judges of the states, composing one circuit, ride together into the states of their circuit, and together hold the court. the much smaller distance which those judges have to travel than the circuit judges, under the former system, secure their due attendance; a portion of their time is left them to study and reflection, and the same persons presiding at successive terms, a uniformity of decision is preserved. the six former judges hold the supreme court, with original constitutional jurisdiction in matters of the utmost national importance, and appellate jurisdiction, in certain cases, where the sum in dispute is two thousand dollars; they are also the court in which the errors of the circuit court are examined and corrected. it is objected against the act proposed to be repealed, that a dangerous patronage is created by it for the president. i shall pass over what i consider an inconsistency in this objection coming from gentlemen who profess that implicit confidence is due to the man chosen by the people, who, in his appointments, speaks not less the voice of the people than the voice of god, and examine the weight of the objection. if this apprehended patronage means the power of appointing the judiciary, that power is given by the constitution, and is the same, whether the power of the judiciary be vested in six or in sixteen judges. if it fear an undue control over the people in favor of the executive, through the judiciary, make the judges as independent as we contend they are and ought to be, and they are placed beyond the necessity of descending to the practice of improper means to preserve executive favor. we have been told, sir, that it is necessary the judges should ride into the states to gain a knowledge of the laws by which, in many cases, they are to decide. until this occasion i have never heard that the laws of a country could only be acquired in the atmosphere of that country where they are in force. nine-tenths of the decisions in our state courts and federal courts turn on questions of common law; yet, has it ever been suggested that an american judge was incompetent to decide on common law questions, because he had not studied in england? no, sir, the knowledge in both cases may be acquired in the closet. to these observations permit me to add, that the remonstrances from the bar of philadelphia, composed of gentlemen no less celebrated for the respectability of their private than of their professional character, who, on this occasion, so interesting to the welfare of their country, have sacrificed their political prejudices, strongly expressing their decided preference of the present system to the former, is, to my mind, conclusive, that it ought to be preferred. i am, therefore, of opinion, that it is inexpedient to pass the present repealing bill; and so long as my opinion is supported by the respectable authority i have just alluded to, and opposed only by the objections which i have noticed, i shall feel satisfied that opinion is correct. in approaching the second question which i proposed to examine--the constitutionality of the measure--whether i reflect on the magnitude of the question on the one hand, or my inability on the other, i am, indeed, humbled before the undertaking. without examining whether government, according to the modern opinion, should be founded on the reason and sense of justice of man, it is certain our government is calculated to guard against his weakness and his wickedness. our government has been particularly cautious on this subject; it has left nothing to the hazard of reason or sense of justice; it has carefully delegated powers to three distinct departments, and separated these departments by boundaries plainly marked and formed, each so as not to control, at least to check, the other. the legislative powers, though vested in men chosen frequently and by the people themselves in one branch, and by the immediate agents of the people in the other, are nevertheless the object of suspicion and caution. their powers, far from resting on their discretion or sense of expediency, are expressly and cautiously limited. the executive conditional veto forms one check on the legislature; the judiciary, i shall contend, are a check on both. here, permit me to say, that from the spirit and the words of our constitution, i infer that the judiciary are a co-ordinate department with the executive and legislative. the framers of our constitution, satisfied that the powers of well-organized governments ought to be divided into three branches--legislative, executive, and judicial--have nowhere expressly declared there shall be such departments, but, after premising the objects of the government, proceed to ordain how the legislature shall be composed; and article two, section two, declares, "the power shall be vested in a president of the united states of america; he shall hold his office during the term of four years," and prescribes the mode of election. article three, section one, also declares, "the judicial power of the united states shall be vested in one supreme court and in such inferior courts as the congress may from time to time ordain and establish," and the judges of the supreme and inferior courts shall hold, &c., during good behavior. by comparing these sections of the constitution, it appears the judiciary and the executive are expressly created by the constitution, and nothing is left to the discretion of congress, as to the existence of these departments; they are created by the same words; and if the legislature claim a right to put down the judiciary at pleasure, before the happening of that event till which the constitution secures their offices--their misbehavior--they may as well assume the right to remove the president before the happening of that event till which his office is secured, to wit, the expiration of four years. i shall attempt to establish as a first principle, that the judiciary are a check on the legislature, and thence to show first, that, by the spirit of our constitution, the judiciary ought to be independent, beyond the control or influence of either of the other departments of power; and secondly, that, by the words of the constitution, they are so secured. first, then, that the judiciary are a check on the legislature. in the constitution, we find certain powers delegated to congress; we also find they are prohibited from exercising certain powers; among which are, they shall pass no _ex post facto_ law, no bill of attainder, no law respecting religion, &c. should, unhappily, a legislature be found who, from weakness or wickedness, or the union of both, should transgress the bounds prescribed, what is the security of the citizen? after all the experience derived from the example of other governments, after all the deliberation and wisdom of our sages who framed the constitution, are we left, in this important instance, as under the despotism of a monarch, to seek redress through the throes and convulsions of a revolution? no, sir. the judiciary are our security. the legislature may enact penalties, and denounce punishments against those who do not yield obedience to their unconstitutional acts; their penalties cannot be exacted, nor punishments inflicted, without the judgment of a court. the judges are to expound the law, and that fundamental, paramount law, the constitution. to this purpose they are sworn to support the constitution. while the judiciary firmly, independently, and uprightly, discharge their duty and declare the act of the legislature contrary to the constitution, to be void, the legislature are checked, and the citizen shielded from oppression and persecution. but, ask gentlemen, whence do the courts derive this power, and the honorable gentleman from virginia (mr. thompson) says, we are contending for this common law doctrine, that the courts are a check on the legislature. if i misunderstood the gentleman, i trust he will correct me. sir, that gentleman, i am willing to presume, knows, what i assure him no gentleman with whom on this occasion i act, is ignorant of, that this is not a common law doctrine; that in england their courts have no check on the legislature--their parliament are emphatically styled omnipotent, and if they violate the few natural rights that remain to the citizens, they have no remedy but in a resort to revolutionary principles; it was the want of this check to the oppressions of their rulers, which has produced civil wars, and driven one monarch from his kingdom, and sent another to the scaffold. this power exists in no other government, because under no other government does there exist a legislature with limited powers; under our government it is the very essence, the constitution of a court, the oath enjoined on them to support the constitution. the exercise and the admission of this right are not new in america; instances must be in the recollection of every gentleman. i will cite a few most prominent: the honorable member (mr. thompson) has been pleased to call the attention of the committee to the examples drawn from his state; i beg leave to profit from the same source. in , the legislature of that state passed an act making new arrangements in the jurisdiction of the courts. the judges, among whom was that venerable gentleman mentioned by the member from that state, whose merits and worth command the sincere homage of my respects, protested against this act, and refused to carry it into effect; the legislature acquiesced, and the law was repealed. upon the imposition of the carriage tax by congress, a citizen of virginia refused to pay the tax, on the ground that it was unconstitutionally laid. he was sued for the penalty in the circuit court of that state, from whence, by writ of error, the suit came before the supreme court; in this case the defendant relied solely on the unconstitutionality of the act of congress, and on this ground was defended by the attorney general of the state of virginia, and the attorney general of the state of pennsylvania. at this time, then, it appears that these learned gentlemen, the judges, and the citizens, thought the court competent to relieve in case the law was judged to be unconstitutional. in , congress passed an act imposing certain duties respecting invalid pensioners, upon the judges of the circuit court. the judges, at the first court after this act, protested against it; their protests were transmitted to the president of the united states--that president, who had presided in the general convention which framed the constitution, and, therefore, as likely to understand the powers of congress on the judiciary as any other man, so far sanctioned their opinions as to transmit them to the next congress, where the act was reconsidered and repealed. i beg leave, also, to allude to the authority before mentioned by my friend from pennsylvania, (mr. hemphill,) which i should think of some weight here. it is the opinion of a gentleman, venerable for his age, respectable for legal knowledge, and distinguished for what, in the fashionable language of the day, are termed republican principles. i mean the executive of pennsylvania; that gentleman, in assigning to the legislature of his state his reasons for not approving an act they had laid before him, after expressing his doubts of the constitutionality of the act, declares, "he cannot, from a confidence in the legal knowledge, integrity, and fortitude of his former brethren in the supreme court, risk his character in a judicial decision on this question, when he does not see any advantage to be derived to his country from a possibility of success." if any words can make more plain the opinion here conveyed, it is that he considers the judges have the power and will exercise it, to declare the act unconstitutional. to my mind, these considerations are satisfactory, that, from the very constitution of our courts, from the practice and admission of our state courts and state legislatures, and federal courts, and federal legislature, that the judges of the united states, sitting in court, have the power, and by oath are bound to pronounce, that, an act contrary to the constitution, is void. from the establishment of this proposition, that the judges are the expounders of the constitution, and the laws made under it, and that they are thereby a check on the legislature, i shall infer that, by the spirit of our constitution, they ought to be independent of the other branches of government, but particularly so of the legislature. the concentrating the branches of power either executive and legislative, or legislative and judiciary, in the same hands, is the very essence of tyranny; in proportion as we advance towards the union of those powers, in the same proportion do we recede from liberty. are these departments separate, unconnected--if the legislature by any means procure their will either directly or indirectly, to be substituted for or to overrule judicial judgment? whether the legislature expound and adjudge their acts themselves, or submit them to the exposition and judgment of a judiciary subservient to them, is essentially the same. if the legislature exercise the power of removal from office by the direct means of a vote of removal, or by the indirect means, the legislative legerdemain of a repealing act, is precisely the same thing, the judges are no longer independent, but dependent on the legislature for their offices, and subject to their control; a consequence entirely repugnant to the spirit of our constitution. i shall attempt to show, that by the words of our constitution, the judges are placed beyond legislative control. article three, section one: "the judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office." until the contemplation of the present measure, i incline to believe, it never entered the mind of any man acquainted with this clause of the constitution, that judges should be removed otherwise than by impeachment for misdemeanor. the advocates for this legislative power contend that the tenure of "good behavior" in this article of the constitution is intended to restrict executive and not legislative power. it does not appear probable that an express restriction should be introduced against a power which is nowhere expressly granted; for gentlemen know that the executive power of removal from office is a power admitted from construction, and not founded on any thing drawn from the constitution. i say this rather, because, by the constitution, the aid of the senate is necessary to appoint, and _a fortiori_ should be necessary to remove. it is important to ascertain what was the intention of the framers of the constitution in introducing the words "good behavior." the most correct source in our power from which this aid may be derived, is the writings and opinions at that day of those who aided in the great work. among those publications which were written for the purpose of explaining and recommending this constitution, the most celebrated are those pieces over the signature of "publius," written by the pens of gentlemen of leading influence in the convention, and whose talents and patriotism are still honored by the nation. in that part of this work which treats of the tenure of the office of judge during "good behavior," i find this strong expression: "the standard of good behavior for the continuance in office of the judicial magistracy is certainly one of the most valuable of the modern improvements in the practice of government. in a monarchy, it is an excellent barrier to the despotism of the prince. in a republic, it is a no less excellent barrier to the encroachments and oppressions of the representative body." this, sir, to my mind, is conclusive, that the convention intended this tenure as a restriction no less on legislative than on executive power, and that, in this sense of the phrase, the people of america received this part of the constitution. in ascertaining the import of the words "during good behavior," it is certainly important to inquire the end to which they have been used in other similar cases. my colleague (mr. henderson) has, with much abler talents, shown that, in most of the state constitutions, which existed before our federal constitution, these words are used to fix the tenure of offices where the executive have neither express nor constructive power of removal; consequently, they are in those constitutions restrictive of the legislative power. if, then, the framers of our constitution borrowed this tenure from these state constitutions, it is fair and reasonable to conclude they used them in the sense in which they were previously received. but, says my colleague on the other side of the house, (mr. robert williams,) the judges in england hold their offices by the tenure of "good behavior," and yet are removable on an address from both houses of parliament, and he infers that the terms may have been taken from england. to this i will first observe, that no fair argument can be drawn from the existence of this legislative power there, for the exercise here. the mode of appointment there may render such control over the executive necessary, which, from the provisions of our constitution, are not wanted here. in england, the king has the sole power of appointment--the people have no previous check. in this country, the executive appointment is checked by the requisite sanction of the senate. but is this legislative power in great britain usurped by construction? no, if the gentleman will read again the statute of william iii., he will find that this power of removal is expressly granted by the crown to parliament. if, then, one convention had this statute before them, in adopting that part which relates to the tenure of office, and omitting that part which gives the power of removal, it is not to be presumed they intended so important a power should depend on construction. the same gentleman (mr. robert williams) also contended that it could not be presumed the convention intended to restrict the power of the representatives of the people, the friends of the people. what will the gentleman say of the correctness of his opinion, when i remind him that our powers are all expressly restricted; that the same article which fixes the tenure of "good behavior," expressly and undoubtedly guards against the power of the representatives of the people, the friends of the people, by securing the salaries of the judges undiminished during their continuance in office. mr. giles said that he felt some degree of apprehension, that, in the course he deemed it necessary to take in the discussion of this question, some observations might fall from him which might not be in strict harmony with the feelings of some gentlemen of the committee. he should regret, however, if a compliance with a sense of duty should produce that effect. he said, therefore, that he wished to apprise gentlemen that he intended to direct his observations as much as possible to the effects and tendencies of measures; and that when he was constrained to speak of the views of gentlemen, it would be with respect to what he conceived to be their opinions in relation to the general interests, and not to private gratifications. he said it was natural that men should differ in the choice of means to produce a given end, and more natural that they should differ in the choice of political means than any other; because the subject presented more complicated and variable objects, out of which to make a choice. accordingly, a great portion of the human mind has been at all times directed towards monarchy, as the best form of government to enforce obedience and ensure the general happiness; whereas another portion of the human mind has given a preference to the republican form, as best calculated to produce the same end; and there is no reason for applying improper motives to individuals who should give a preference to either of the principles, provided in doing so they follow the honest dictates of their own judgments. it must be obvious to the most common observer, that, from the commencement of the government of the united states, and perhaps before it, a difference of opinion existed among the citizens, having more or less reference to these two extreme fundamental points, and that it manifested itself in the modification or administration of the government as soon as it was put in operation. on one side, it was contended, that in the organization of the constitution a due apportionment of authority had not been made among the several departments; that the legislature was too powerful for the executive department; and to create and preserve a proper equipoise, it was necessary to infuse into the executive department, by legislation, all artificial powers compatible with the constitution, upon which the most diffusive construction was given; or, in other words, to place in executive hands all the patronage it was possible to create, for the purpose of protecting the president against the full force of his constitutional responsibility to the people. on the other side, it was contended, that the doctrine of patronage was repugnant to the opinions and feelings of the people; that it was unnecessary, expensive, and oppressive, and that the highest energy the government could possess, would flow from the confidence of the mass of the people, founded upon their own sense of their common interests. hence, what is called party in the united states, grew up from a division of opinion respecting these two great characteristic principles. patronage, or the creation of partial interest for the protection and support of government, on the one side: on the other side, to effect the same end, a fair responsibility of all representatives to the people; an adherence to the general interests, and a reliance on the confidence of the people at large, resulting from a sense of their common interests. a variety of circumstances existed in the united states at the commencement of the government, and a great number of favorable incidents continued afterwards to arise, which gave the patronage system the preponderancy, during the first three presidential terms of election; notwithstanding it was evident, that the system was adopted and pursued in direct hostility to the feelings and opinions of a great portion of the american people. the government was ushered into operation under a vast excitement of federal fervor, flowing from its recent triumph on the question of adopting the constitution. at that time a considerable debt was afloat in the united states, which had grown out of the revolutionary war. this debt was of two kinds: the debt proper of the united states, or engagements made by the united states in their federal capacity; the other, the state debts or engagements entered into by the respective states for the support of the common cause. the favorers of the patronage system readily availed themselves of these materials for erecting a moneyed interest; gave to it a stability, or qualified perpetuity, and calculated upon its certain support in all their measures of irresponsibility. this was done not only by funding the debt proper of the united states, but by assuming the payment of the state debts, and funding them also; and it is believed, extending the assumption beyond the actual engagements of the states. hence the federal axiom, that a public debt is a public blessing. shortly after this event, an indian war sprang up--he would not say by what means--in consequence of which an army was added to the list of patronage. the algerines commenced a predatory war upon the commerce of the united states, and thence a navy formed a new item of patronage. taxes became necessary to meet the expenses of this system, and an arrangement of internal taxes, an excise, &c., still swelled the list of patronage. but the circumstance which most favored this system was, the breaking out of a tremendous and unprecedented war in those countries of europe with which the united states had the most intimate relations. the feelings and sympathies of the people of the united states were so strongly attracted by the tremendous scenes existing there, that they considered their own internal concerns in a secondary point of view. after a variable conduct had been pursued by the united states in relation to these events, the depredations committed upon commerce, and the excitements produced thereby, enabled the administration to indulge themselves in a more decisive course, and they at once pushed forward the people to the x, y, z, of their political alphabet, before they had well learned and understood the a, b, c, of the principles of the administration. armies and navies were raised, and a variety of other schemes of expense were adopted, which placed the administration in the embarrassing predicament, either to violate their faith with their public creditors, or to resort to new taxes. the latter alternative was preferred, accompanied with other strong coercive measures to enforce obedience. a land tax was laid for two millions of dollars. this measure awakened the people to a sense of their situation; and shook to the foundation all those federal ramparts which had been planned with so much ingenuity, and erected around the executive with so much expense and labor. another circumstance peculiarly favorable to the advocates of executive patronage was, that during the two first presidential terms, the chief executive magistrate possessed a greater degree of popularity and the confidence of the people than ever was, or perhaps will ever be again attached to the person occupying that dignified station. the general disquietude which manifested itself in consequence of these enterprising measures, in the year , induced the federal party to apprehend that they had pushed their principles too far, and they began to entertain doubts of the result of the presidential election, which was approaching. in this state of things, it was natural for them to look out for some department of the government in which they could intrench themselves in the event of an unsuccessful issue in the election, and continue to support those favorite principles of irresponsibility which they could never consent to abandon. the judiciary department, of course, presented itself as best fitted for their object, not only because it was already filled with men who had manifested the most indecorous zeal in favor of their principles, but because they held their offices by indefinite tenures, and of course were further removed from any responsibility to the people, than either of the other departments. accordingly, on the th of march, , a bill for the more convenient organization of the courts of the united states, was presented to the house of representatives. this bill appears to have had for its objects, first, the gradual demolition of the state courts, by increasing the number and extending the jurisdiction of the federal courts. second, to afford additional protection to the principles of the then existing administration by creating a new corps of judges of concurring political opinions. this bill, however, was not passed into a law during that session of congress, perhaps from an apprehension that it would tend to increase the disquietudes which other measures had before excited, and therefore operate unfavorably to the approaching presidential election. at the next session, after the result of the late election was ascertained, the bill, after having undergone some considerable alterations, was passed into the law now under discussion. this law, it is now said, is inviolable and irrepealable. it is said, the independence of the judge will be thereby immolated. yes, sir, this law is now considered as the sanctuary of the principles of the last administration, and the tenures of the judges as the horns of inviolability within that sanctuary. he said, we are now called upon to rally round the constitution as the ark of our political safety. gentlemen, discarding all generalizing expressions, and the spirit of the instrument, tie down all construction to the strict letter of the constitution. he said, it gave him great pleasure to meet gentlemen on this ground, and the more so, because he had long been in the habit of hearing very different language from the same gentlemen. he had long been in the habit of hearing the same gentlemen speak of the expressions of "the common defence and the general welfare," as the only valuable part of the constitution; that they were sufficient to obliterate all specifications and limitations of power. that the constitution was a mere nose of wax, yielding to every impression it received. that every "opening wedge" which was driven into it, was highly beneficial in severing asunder the limitations and restrictions of power. that the republicanism it secured, meant any thing or nothing. it gave him, therefore, great pleasure at this time to obey the injunctions of gentlemen in rallying round the constitution as the ark of our political safety, and of interpreting it in by the plain and obvious meaning and letter of the specified powers. but, he said, as if it was always the unfortunate destiny of these gentlemen to be upon extremes, they have now got round to the opposite extreme point of the political compass, and even beyond it. for, he said, they not only tie down all construction to the letter of the instrument, but they tell us that they see, and call upon us also to see written therein, in large capital characters, "the independence of judges;" which, to the extent they carry the meaning of the term, is neither to be found in the letter or spirit of that instrument, or in any other political establishment, he believed, under the sun. mr. g. said he rejoiced that this subject was now to be discussed; he thought the crisis peculiarly auspicious for the discussion. he said the european world, with which the united states have the most relations, is now tranquillized. the tremendous scenes of blood and revolution which had agitated that portion of the globe, had at length subsided into profound peace; and had left mankind in silent amazement, to retrospect the wonderful events which were passed; and he hoped, with calm deliberation, to improve the lessons they had furnished for the benefit of mankind in time to come. the interests and sympathies, which the people of the united states felt in these events, no longer turn their attention from their internal concerns; arguments of the highest consideration for the safety of the constitution and the liberty of the citizens, no longer receive the short reply, french partisans! jacobins! disorganizers! and although the gentleman from north carolina sees, or thinks he sees, the destructive spirit mount in the whirlwind and direct the storm, let him be consoled by the information, "that all these, our actors, are mere spirits, and are dissolved into thin air." yes, sir, these magical delusions are now vanished, and have left the american people and their congress, in their real persons, and original american characters, engaged in the transaction of american concerns. he said he would now proceed to examine whether the repeal of the judiciary law of the last session of congress would in any respect violate that salutary and practicable independence of the judges which was secured to them by the constitution. he said the terms _independence of judges or of the judiciary department_ was not to be found in the constitution. it was therefore a mere inference from some of the specified powers. and he believed, in the meaning of gentlemen, and to the extent they carry it, that the term is not to be found either in the spirit, general character, or phraseology, of any article or section of the constitution. he meant to give the constitution the most candid interpretation in his power, according to the plain and obvious import of the english language. he should discard, in his interpretation, the terms "common defence and general welfare," which had been resorted to by some gentlemen. he considered these words as containing no grant of power whatever but merely the expression of the ends or objects to be effected by the grants of specified powers. he therefore protested against drawing any aid whatever from them in his construction of the instrument. he said he had read through the whole constitution, to enable him to form his opinion upon this question, for fear there might be in some hidden corner of it some provision which might demonstrate the unconstitutionality of the present bill; and if so, (although he should lament such a provision,) he would instantly give up the bill. but his researches had terminated in a different result. he said he found, from the general character of the constitution, that the general will was its basis, the general good its object, and the fundamental principle for effecting this object was the responsibility of all public agents, either mediately or immediately to the people. he said the context of the constitution would demonstrate the two first points, which he begged to read: "we, the people of the united states, in order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the united states of america." here we find the constitution founded upon the will of the people, and the object declared to be the good of the people. through the whole body of the constitution may be discerned the responsibility of all public agents, either mediately or immediately, to the people. this responsibility results, first, from the division of authority into different departments; secondly, from a specification and limitation of the authorities of all and each of the departments; thirdly, from periodical appointments of the public agents. the first clause declares there shall be a congress, to whom the business of legislation is confided. this congress is to consist of a house of representatives, to be chosen by the people immediately, and responsible to them at the end of every two years; and a senate, to be chosen by the legislatures of the different states, who are chosen by the people--one-third of the senators to be chosen every two years, and responsible at the end of every six years. the executive power is vested in a president, who is chosen by electors, who are chosen for the express purpose by the people, and responsible at the end of every four years. the president may be considered as immediately responsible to the people, although chosen through the medium of electors; because it is found, in practice, that the electors are constrained to avow the vote they intend to give before they are chosen, and the people have generally made their elections with a view to that object. thus, then, are formed two departments, their powers specified and defined, the times for extending their powers fixed, and indeed a complete organization for the execution of their respective powers, without the intervention of any law for that purpose. a third department, to wit, the judiciary department, is still wanting. is that formed by the constitution? how is that to be formed? it is not formed by the constitution. it is only declared that there shall be such a department; and it is directed to be formed by the other two departments, who owe a responsibility to the people. here there arises an important difference of opinion between the different sides of this house. it is contended on one side that the judiciary department is formed by the constitution itself. it is contended on the other side, that the constitution does no more than to declare that there shall be a judiciary department, and directs that it shall be formed by the other two departments, under certain modifications. article third, section first, the constitution has these words: "the judicial power of the united states shall be vested in one supreme court and in such inferior courts as congress shall from time to time ordain and establish." here, then, the power to ordain and establish inferior courts is given to congress in the most unqualified terms, and also to ordain and establish "one supreme court." the only limitation upon the power of congress in this clause, consists in the number of supreme courts to be established; the limitation is to the number of one, although that is an affirmative and not a negative expression. the number of judges, the assignation of duties, the fixing compensations, the fixing the times when, and places where, the courts shall exercise their functions, &c., are left to the entire discretion of congress. the spirit, as well as the words of the constitution, are completely satisfied, provided one supreme court be established. hence, when all these essential points in the organization and formation of courts are intrusted to the unlimited discretion of congress, it cannot be said that the courts are formed by the constitution. for further restraints, therefore, upon the discretion of congress, the remaining part of the same section must be consulted. here he begged leave to remark, that he had often felt a veneration for the wisdom of the sages who formed this constitution; considering the difficulties they had to encounter, resulting from the various local prejudices and local interests of the different parts of the united states, and the vast variety of opinions which the subject presented, it was almost wonderful to conceive how they should have hit upon a system so admirably calculated to protect and to promote the general interests, when administered according to its original meaning and intention. he could not go so far as to say it was perfect. he admitted, like other human productions, it was stamped with the common fallibility of man. that he wished, however, to see no radical changes in its principles. he wished to hand it down to posterity with those amendments only which experience should suggest, and which would grow out of the continually varying state of the nation. he said it was not only remarkable for the wisdom of its arrangements, but the correct and technical mode of expression. the part of the section now to be examined, was an example of the justice of both these remarks. the words are, "the judges both of the supreme and inferior courts shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office." the first part of the sentence respects the relationship between the executive and the judiciary departments. it respects judges or officers of the courts who are appointed by the president. the last part of the sentence respects the relationship between the legislative and judiciary departments. it respects the creation of offices, the fixing the compensation of the officers or judges, and their continuance in office. these are the peculiar attributes of the legislative department. accordingly, the most correct and technical words are used in relation to both these objects. the term "hold their offices during good behavior," relates merely to the executive department. the term "hold," is the common technical word used to convey the idea of tenure. tenure requires two parties. the one granting, the other holding or receiving the grant. let the inquiry be made, of whom do the judges hold? the constitution furnishes the answer, of the president. one of the most obvious rules in the construction of instruments of writing is, that the whole of it must be taken together, and not one particular part by itself. the following words will be found in the second section of the second article of the constitution: "and he (to wit, the president) shall nominate, and, by and with the advice and consent of the senate, shall appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the united states, whose appointments are not herein otherwise provided for, and which shall be established by law." in the third section of the same article, are these words: "and shall (to wit, the president) commission all the officers of the united states." these three sentences contain the relationship between the executive and judiciary departments, so far as respects the objects of the present discussion. to ascertain the real meaning and import of these sentences, they should be read in connection with each other, excluding therefrom all intermediate words not immediately bearing on the subject. in that case the constitution would read thus: "he (to wit, the president) shall nominate and appoint the judges of the supreme court, and all other officers of the united states, and shall commission all the officers of the united states. the judges both of the supreme and inferior courts shall hold their offices during good behavior." it may now be asked, if this case of the judges of the supreme and inferior courts be not an obvious exception out of the general presidential discretion of appointing and commissioning all officers of the united states during pleasure? after the government has been in operation above twelve years, and the principle of commissioning all executive officers during pleasure, has been practised upon during the whole of the period by the executive, as well as the legislative department, the propriety of that practice is for the first time now become questionable. it is said that the right to commission during pleasure, is by implication. it is readily admitted that there are no express words in the constitution to that effect; but the inference from the words which are there, is almost as strong as the words themselves, if they had been inserted. the president is authorized, without limitation, to "commission all the officers of the united states." the question arises, by what tenure? the reply is, according to his pleasure or discretion. it was not difficult to foresee, that if the president was fully empowered to commission as he pleased, he would please to commission during his pleasure. the legislature has no more control over an officer who holds an executive commission during the pleasure of the president, than over a judicial officer holding his office during good behavior. the remedy given by the constitution being the same in both cases, to wit, impeachment. nor is there any reason why the office of the one should be less subject to the discretion of the legislature, than the office of the other; and it seems to be universally agreed, that although the legislature cannot deprive an executive officer of his office in any other way than by impeachment, during the continuance of such office, yet the office itself is always subject to be abolished. the same reasoning will hold with equal force respecting a judge and a judicial office. the reason why the executive is proscribed from the removal of a judge, is to secure to the judge a complete independence of the president, who is not responsible for the discharge of judicial duties; but the removal is perfectly correct in the case of an executive officer, because the president is highly responsible for the due discharge of executive duties. the legislature is not responsible for either, and of course stands in the same constitutional relation to both. this appears obvious from furnishing to the legislature the same means of removing both, as will appear by the fourth section of the second article, in the following words: "the president, vice president, and all civil officers of the united states, shall be removed from office by impeachment for, and conviction of treason, bribery, or other high crimes or misdemeanors." he now begged to call the attention of the committee particularly to the last clause of the sentence, which ascertains the constitutional connection between the legislative and judicial departments, so far as respects the limitation of the legislative, in the exercise of the power committed to it, for the organization of the judicial department. he should place particular emphasis on these words of the constitution in the exposition he proposed to make. the words are: "and shall at stated times receive for their services a compensation, which shall not be diminished during their continuance in office." the first part of this section having given to congress the power of creating courts, ascertaining the number of judges, &c., these last words may be considered as containing explanations and limitations of the general power of congress, as was the foregoing part of this sentence a limitation of the general executive power. and accordingly the most correct terms are used for limiting legislative discretion, and explaining its objects; according to the words of this sentence, the judge is to receive a compensation for his services. to whom are these services to be rendered? to the people, for the benefit of the people. who is to judge of the necessity or utility of these services? the constitution has ordained, that congress, or, in other words, the representatives of the people, shall be the tribunal. suppose there should be no services required, none for the judge to perform, and that congress should so think and determine: is the judge entitled to compensation? he is not. the condition of service for the benefit of the people, is the express consideration upon which the compensation accrues. no service is rendered, the competent tribunal says, there is none required, of course no compensation accrues. the judge is entitled to receive none. on this point, an obvious and most important difference of opinion exists between the two sides of the committee. on one side it is contended, that the office is the vested property of the judge, conferred on him by his appointment, and that his good behavior is the consideration of his compensation; so long, therefore, as his good behavior exists, so long his office must continue in consequence of his good behavior, and that his compensation is his property in virtue of his office, and therefore cannot be taken away by any authority whatever, although there may be no service for him to perform. on the other side, it is contended that the good behavior is not the consideration upon which the compensation accrues, but services rendered for the public good; and that if the office is to be considered as a property, it is a property held in trust for the benefit of the people, and must therefore be held subject to that condition, of which congress is the constitutional judge. mr. g. said, considering the boundary line between these conflicting opinions to be the boundary line between the offices held for public utility, and offices held for personal favor, he could not bestow too much attention upon this part of the discussion; for if the construction gentlemen contend for should prevail, in vain have the framers of the constitution, with so much jealous circumspection, erected so many ramparts against the introduction of some of these offices in the government of the united states. a sinecure office is an office held without the condition of service; often for past services already compensated; often for present favor, without the condition of any service. for the purpose of excluding from the federal government all sinecure offices, the sages who formed the constitution have through every part of it connected services and compensation, and they ought never to be separated in construction. the sixth section of the first article is in these words: "the senators and representatives shall receive a compensation for their services, to be ascertained by law," &c., and so far has this principle of the rendition of service been carried, that the service of the senate and representatives is to be rendered every day, and unless they do daily render service, they are not entitled to their day's compensation. in the first section of the second article of the constitution, are these words: "the president shall, at stated times, receive for his services a compensation," &c. in the forty-first section of the act under which the judges claim their compensation, are these words: "that each of the circuit judges of the united states, to be appointed by virtue of this act, shall be allowed as a compensation for his services," &c. these expressions all demonstrate the importance of coupling the service and compensation of office. but the jealous caution of the framers of the constitution did not stop at choosing the best affirmative expression for excluding this doctrine of sinecure offices, they also applied negative restraints. in the ninth section of the first article of the constitution, are these words, "no money shall be drawn from the treasury but in consequence of appropriations made by law." in the same section, "no title of nobility shall be granted by the united states, and no person holding any office of profit or trust under them, shall, without the consent of congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state." if then services rendered for the public benefit be the essential consideration, upon which the compensation does accrue to the judges; if the congress be the proper tribunal for pronouncing upon the necessity or utility of such service, and if they decide that no such service is necessary or useful; the judge sustains no injury in not receiving the compensation, because he does not comply with the condition on his part; nor does he sustain a hardship thereby, because it must be presumed that he understood the second conditions attached to his office at the time of his acceptance. it has been admitted by all gentlemen, that congress is the constitutional tribunal for deciding respecting the services to be performed. they admit that congress may modify the courts, diminish or add to their duties, alter the terms of their sessions, or make any other arrangements respecting them which do not go to take away or diminish their compensations. it is to be observed that there is not one of these powers specified in the constitution; they are therefore necessary inferences from the paramount power "to ordain and establish," and the power of repeal, or to take away all the services to be performed, is as necessary an inference as either of the others, and has uniformly resulted from every other specified power in the constitution. from this part of the sentence, therefore, it is deducible, that the only restraint upon the general power given to congress in the first part of the section to ordain and establish courts, is, that the compensations of the judges should not be lessened during their continuance in office; not during their good behavior. and in this part of the sentence the correct phraseology of the constitution is worthy of observation. in speaking of the executive attribute, to wit, the appointing and commissioning officers, the term _good behavior_ is used. in speaking of the legislative attribute, to wit, the creation of the offices and fixing compensations, the term _during their continuance in office_ is used. the reason for this variation of expression is obvious. it was known that the office might be discontinued, and the judge continue to behave well; the limitation was therefore applied to the office, and not the good behavior, because if the office should be discontinued, which is clearly implied in this expression, it was not the intention of the constitution that the compensation should be received, no service in that event being to be rendered. from this interpretation of the constitution, all of the departments are preserved in the due exercise of their respective functions for the general good, without any of the mischievous and absurd consequences resulting from the opposite construction. it is admitted that the first part of this section expressly vests congress with the general power to ordain and establish courts; and, if there had been no other restriction, the consequent power to unordain, or abolish. the restriction relied upon is not a restriction in express words: there are no words in the constitution prohibiting congress from repealing a law for organizing courts; the restraint contended for, therefore, is by implication, and that implication, to say the least, not expressly connected with any legislative attribute. is it right, is it a correct interpretation, that when a power is given in express words for the most important purposes, that it should be restrained or prohibited by implication? can so much inattention and folly be attributed to the framers of the constitution, as would result from the supposition that if it was their intention that a law growing out of one of the specified powers, in contradistinction to all others, should be irrepealable when once passed, that so extraordinary a principle would be left to mere implication? such a supposition would be the highest injustice to the superior intelligence and patriotism of those gentlemen, manifested in every other part of the instrument. no, sir, they would have made notes of admiration: they would have used every mark, adopted every caution, to have arrested and fixed the attention of the legislature to so extraordinary a principle. they would have said, legislators! be circumspect! be cautious! be calm! be deliberate! be wise! be wise not only for the present, but be wise for posterity! you are now about to tread upon holy ground. the law you are now about to pass, is irrepealable! irrevokable! we are so enamored with the salutary and practical independence of the english judiciary system, that in infusing its principle into our constitution, we have stamped it with the proverbial folly of the medes and persians! if this principle had been introduced into the constitution in express words, it would have formed an unfortunate contrast to all other parts of the instrument; yet gentlemen make no difficulty in introducing that principle by construction, which would have appeared so stupid and absurd if written in express words in the body of the instrument. but there is no such language in the constitution. let us see what is the language of that instrument, "the judicial power of the united states shall be vested in one supreme court, and in such inferior courts as congress may from time to time ordain and establish." here, then, instead of cautioning the legislature that a law for the organization of courts, when passed, can never be repealed, it contains an invitation to a revision from time to time. it contains an intimation, that the subject is new and difficult, and an injunction to ordain and establish your courts from time to time, according to the results, which an experience of the system alone could suggest. the gentleman from pennsylvania (mr. hemphill) observed that the character of irrepealability was not exclusively attached to this law, and attempted to furnish instances of other laws of the same character. he instanced a law for the admission of a new state into the union. the gentleman from kentucky (mr. davis) had given a proper reply to that remark; the strongest instance the gentleman gave, was of a law executed. after the new state is remitted into the union, in virtue of a law for that purpose, the object of the law is answered. the state admitted has no stipulated duties to perform on its part, no services to render; in the case before the committee the law is in a state of execution, and the judges have services to render on their part which the competent tribunals may determine to be neither useful nor necessary. a law for the appropriation of money to a given object, may be adduced is an instance; the money is applied; its object is answered; the law may be said to be irrepealable, or, in other words, the repeal would produce no effect. that is not the case of the law in question. mr. g. said he had no doubt but that the framers of the constitution had particular reference to the british act of parliament of william iii. for the establishment of the independence of the judges in that country, in framing the section for the establishment of the judicial department in the united states; and it is not a little remarkable, that whilst gentlemen in one breath speak of the independence of the english judges, as the boast and glory of that nation, in the next breath they tell us that by the repeal of the present act, the independence of the judges here would be immolated. let this subject be examined. in the third chapter of the first book of blackstone's commentaries, the independence of the english judiciary is fully explained. he begged to read the exposition of that commentator on that subject. "and, in order to maintain both the dignity and independence of the judges of the superior courts, it is enacted by the statute, w. iii. c. , that their commissions shall be made (not, as formerly, _durante bene placito_, but) _quam diu bene se gesserint_, and their salaries ascertained and established; but that it may be lawful to remove them on the address of both houses of parliament. and now, by the noble improvements of that law in the statute of geo. iii. c. , enacted at the earnest recommendation of the king himself, from the throne, the judges are continued in their offices during their good behavior, notwithstanding any demise of the crown, (which was formerly held immediately to vacate their seats,) and their full salaries are absolutely secured to them during the continuance of their commissions. his majesty having been pleased to declare, that "he looked upon the independence and uprightness of the judges, as essential to the impartial administration of justice; as one of the best securities of the rights and liberties of his subjects; and as the most conducive to the honor of the crown."" now, sir, under the doctrine contended for by the repeal of this law, let us see whether the judges of the united states are not more independent than the judges of england. in the first place, congress have the power of originating, abolishing, modifying, &c., the courts here. the parliament in england have the same power there. congress cannot remove a judicial officer from his office so long as the office itself is deemed useful, except by impeachment, two-thirds of the senate being necessary to a conviction. in england, judges can be removed from their offices, although the offices may be deemed useful, by an address of the majority of the two houses of parliament. here then is one essential advantage in favor of the independence of the judges of the united states. congress cannot diminish the compensation of the judges here during their continuance in office. in england, the parliament may diminish the compensation of the judges, at their discretion, during their continuance in office. here, then, is another obvious advantage in favor of the independence of the judges of the united states; whence is it, then, that we hear of the independence of the english judiciary, as being the boast and glory of that country, and with justice, too, and at the same time hear the cry of the immolation of the independence of the judges of the united states, when, under the interpretation of the constitution by the favorers of the repeal, the judges here are more independent than the english judges? it can have no other object than to excite a popular clamor, which, if excited at all, can have only a momentary effect, and will be dissipated as soon as the subject shall be thoroughly examined and understood. but it appeared to him, that if gentlemen really do value the independence of the judges, they have taken an unfortunate ground in the interpretation of the constitution. under their construction, the judges may be placed not only in a dependent, but a ludicrous point of view. gentlemen admit that congress may constitutionally increase or diminish the duties of judges; give or take away jurisdiction; fix the times of holding courts, &c., saving therefrom the salaries of the judges. under this admission, congress may postpone the sessions of the courts for eight or ten years, and establish others, to whom they could transfer all the powers of the existing courts. in this case, the judges would be held up to the people as pensioners, receiving their money and rendering no service in return; or congress might convert them into mere courts of piepoudre, assigning them the most paltry duties to perform, and keep them continually in session, in inconvenient places; whilst new courts could be erected to perform all the essential business of the nation. this would be taking down the high pretensions assigned to the judges by the gentleman from north carolina, (mr. henderson,) of being formed into a permanent corps for the purpose of protecting the people against their worst enemies, themselves; and degrading them into pitiful courts of piepoudre, rendering little service and receiving large compensations. and this would be the case, if party purposes were the object, and not the general good. according to his construction, these absurd results could not take place, unless by a virtual breach of the constitution. because, he contended, that service and compensation were correlative terms; and that there ought always to be a due apportionment of service to compensation. this he considered as the plain and sound interpretation of the constitution, and the moment it is departed from, infinite absurdities ensue. he intended to have taken another view of this subject, as it respects the relative influence of the law of the last session, and the proposed repeal upon this question; but the gentleman from massachusetts (mr. bacon) has put this subject in so much stronger point of view than he could do, that he would refer to his remarks thereupon, observing only that he had no doubt but that the law of last session, now proposed to be repealed, was, in every respect, as much opposed to the doctrine of gentlemen, as the contemplated repeal could be. the sections of the law particularly alluded to, are the twenty-fourth, in these words, "and be it further enacted, that the district courts of the united states, in and for the districts of tennessee and kentucky, shall be and are hereby abolished," and the twenty-seventh, in these words, "and be it further enacted, that the circuit courts of the united states, heretofore established, shall cease and be abolished." mr. g. concluded by observing that, upon the whole view of the subject, feeling the firmest conviction that there is no constitutional impediment in the way of repealing the act in question, upon the most fair and candid interpretation of the constitution:--believing that principles advanced in opposition, go directly to the destruction of the fundamental principle of the constitution, the responsibility of all public agents to the people--that they go to the establishment of a permanent corporation of individuals invested with ultimate censorial and controlling power over all the departments of the government, over legislation, execution, and decision, and irresponsible to the people; believing that these principles are in direct hostility to the great principle of representative government; believing that the courts formerly established, were fully competent to the business they had to perform, and that the present courts are useless, unnecessary, and expensive; believing that the supreme court has heretofore discharged all the duties assigned to it in less than one month in the year, and that its duties could be performed in half that time; considering the compensations of the judges to be among the highest given to any of the highest officers of the united states for the services of the whole year; considering the compensations of all the judges greatly exceeding the services assigned them, as well as considering all the circumstances attending the substitution of the new system for the old one, by increasing the number of judges, and compensations, and lessening their duties by the distribution of the business into a great number of hands, &c., while acting under these impressions, he should vote against the motion now made for striking out the first section of the repealing bill. friday, february . _judiciary system._ the house again resolved itself into a committee of the whole house on the bill sent from the senate, entitled "an act to repeal certain acts respecting the organization of the courts of the united states, and for other purposes." mr. bayard.--mr. chairman, i must be allowed to express my surprise at the course pursued by the honorable gentleman from virginia, (mr. giles,) in the remarks which he has made on the subject before us. i had expected that he would have adopted a different line of conduct. i had expected it as well from that sentiment of magnanimity which ought to have been inspired by a sense of the high ground he holds on the floor of this house, as from the professions of a desire to conciliate, which he has so repeatedly made during the session. we have been invited to bury the hatchet, and brighten the chain of peace. we were disposed to meet on middle ground. we had assurances from the gentleman that he would abstain from reflections on the past, and his only wish was that we might unite in future in promoting the welfare of our common country. we confided in the gentleman's sincerity, and cherished the hope that, if the divisions of party were not banished from the house, its spirit would be less intemperate. such were our impressions, when the mask was suddenly thrown aside, and we saw the torch of discord lighted and blazing before our eyes. every effort has been made to revive the animosities of the house, and inflame the passions of the nation. i am at no loss to perceive why this course has been pursued. the gentleman has been unwilling to rely upon the strength of his subject, and has therefore determined to make the measure a party question. he has probably secured success, but would it not have been more honorable and more commendable to have left the decision of a great constitutional question to the understanding, and not to the prejudices of the house? it was my ardent wish to discuss the subject with calmness and deliberation, and i did intend to avoid every topic which could awaken the sensibility of party. this was my temper and design when i took my seat yesterday. it is a course at present we are no longer at liberty to pursue. the gentleman has wandered far, very far, from the points of the debate, and has extended his animadversions to all the prominent measures of the former administrations. in following him through his preliminary observations, i necessarily lose sight of the bill upon your table. the gentleman commenced his strictures with the philosophic observation, that it was the fate of mankind to hold different opinions as to the form of government which was preferable. that some were attached to the monarchal, while others thought the republican more eligible. this, as an abstract remark, is certainly true, and could have furnished no ground of offence, if it had not evidently appeared that an allusion was designed to be made to the parties in this country. does the gentleman suppose that we have a less lively recollection than himself of the oath which we have taken to support the constitution; that we are less sensible of the spirit of our government, or less devoted to the wishes of our constituents? whatever impression it might be the intention of the gentleman to make, he does not believe that there exists in this country an anti-republican party. he will not venture to assert such an opinion on the floor of this house. that there may be a few individuals having a preference for monarchy is not improbable; but will the gentleman from virginia, or any other gentleman, affirm, in his place, that there is a party in the country who wish to establish a monarchy? insinuations of this sort belong not to the legislature of the union. their place is an election ground or an alehouse. within these walls they are lost; abroad, they have an effect, and i fear are still capable of abusing the popular credulity. we were next told of the parties which have existed, divided by the opposite views of promoting the executive power and guarding the rights of the people. the gentleman did not tell us in plain language, but he wished it to be understood, that he and his friends were the guardians of the people's rights, and that we were the advocates of executive power. i know that this is the distinction of party which some gentlemen have been anxious to establish; but this is not the ground on which we divide. i am satisfied with the constitutional powers of the executive, and never wished nor attempted to increase them; and i do not believe that gentlemen on the other side of the house ever had a serious apprehension of danger from an increase of executive authority. no, sir, our views as to the powers which do and ought to belong to the general and state governments, are the true sources of our divisions. i co-operate with the party to which i am attached, because i believe their true object and end, is an honest and efficient support of the general government, in the exercise of the legitimate powers of the constitution. i pray to god i may be mistaken in the opinion i entertain as to the designs of gentlemen to whom i am opposed. those designs i believe hostile to the powers of this government. state pride extinguishes a national sentiment. whatever is taken from this government is given to the states. the ruins of this government aggrandize the states. there are states which are too proud to be controlled; whose sense of greatness and resource renders them indifferent to our protection, and induces a belief, that if no general government existed, their influence would be more extensive, and their importance more conspicuous. there are gentlemen who make no secret of an extreme point of depression, to which the government is to be sunk. to that point we are rapidly progressing. but i would beg gentlemen to remember, that human affairs are not to be arrested in their course, at artificial points. the impulse now given may be accelerated by causes at present out of view. and when those who now design well, wish to stop, they may find their powers unable to resist the torrent. it is not true that we ever wished to give a dangerous strength to executive power. while the government was in our hands, it was our duty to maintain its constitutional balance, by preserving the energies of each branch. there never was an attempt to vary the relation of its powers. the struggle was to maintain the constitutional powers of the executive. the wild principles of french liberty were scattered through the country. we had our jacobins and disorganizers. they saw no difference between a king and a president, and as the people of france had put down their king, they thought the people of america ought to put down their president. they who considered the constitution as securing all the principles of rational and practical liberty, who were unwilling to embark upon the tempestuous sea of revolution, in pursuit of visionary schemes, were denounced as monarchists. a line was drawn between the government and the people, and the friends of the government were marked as the enemies of the people. i hope, however, that the government and the people are now the same; and i pray to god that what has been frequently remarked may not in this case be discovered to be true, that they who have the name of people the most often in their mouths, have their true interests the most seldom at their hearts. the honorable gentleman from virginia wandered to the very confines of the federal administration, in search of materials the most inflammable and most capable of kindling the passions of his party. he represents the government as seizing the first moment which presented itself to create a dependent moneyed interest, ever devoted to its views. what are we to understand by this remark of the gentleman? does he mean to say that congress did wrong in funding the public debt? does he mean to say that the price of our liberty and independence ought not to have been paid? is he bold enough to denounce this measure as one of the federal victims marked for destruction? is it the design to tell us that its day has not yet come, but is approaching; and that the funding system is to add to the pile of federal ruins? do i hear the gentleman say we will reduce the army to a shadow; we will give the navy to the worms; the mint, which presented the people with the emblems of their liberty, and of their sovereignty, we will abolish; the revenue shall depend upon the winds and waves; the judges shall be made our creatures, and the great work shall be crowned and consecrated by relieving the country from an odious and oppressive public debt? these steps, i presume, are to be taken in progression. the gentleman will pause at each, and feel the public pulse. as the fever increases he will proceed, and the moment of delirium will be seized to finish the great work of destruction. the assumption of the state debts has been made an article of distinct crimination. it has been ascribed to the worst motives--to a design of increasing a dependent moneyed interest. is it not well known that those debts were part of the price of our revolution? that they rose in the exigency of our affairs, from the efforts of the particular states, at times when the federal arm could not be extended to their relief? each state was entitled to the protection of the union, the defence was a common burden, and every state had a right to expect that the expenses attending its individual exertions in the general cause, would be reimbursed from the public purse. i shall be permitted further to add, that the united states, having absorbed the sources of state revenue, except direct taxation, which was required for the support of the state governments, the assumption of these debts was necessary to save some of the states from bankruptcy. the internal taxes are made one of the crimes of the federal administration. they were imposed, says the gentleman, to create a host of dependents on executive favor. this supposes the past administrations to have been not only very wicked, but very weak. they laid taxes in order to strengthen their influence. who is so ignorant as not to know, that the imposition of a tax would create a hundred enemies for one friend? the name of excise was odious; the details of collection were unavoidably expensive, and it was to operate upon a part of the community least disposed to support public burdens, and most ready to complain of their weight. a little experience will give the gentleman a new idea of the patronage of this government. he will find it not that dangerous weapon in the hands of the administration which he has heretofore supposed it; he will probably discover that the poison is accompanied by its antidote, and that an appointment of the government, while it gives to the administration one lazy friend, will raise up against it ten active enemies. no! the motive ascribed for the imposition of the internal taxes is as unfounded as it is uncharitable. the federal administration, in creating burdens to support the credit of the nation, and to supply the means of its protection, knew that they risked the favor of those upon whom their power depended. they were willing to be the victims when the public good required. the duties on imports and tonnage furnished a precarious revenue--a revenue at all times exposed to deficiency, from causes beyond our reach. the internal taxes offered a fund less liable to be impaired by accident--a fund which did not rob the mouth of labor, but was derived from the gratification of luxury. these taxes are an equitable distribution of the public burdens. through this medium the western country is enabled to contribute something to the expenses of a government which has expended and daily expends such large sums for its defence. when these taxes were laid they were indispensable. with the aid of them it has been difficult to prevent an increase of the public debt. and notwithstanding the fairy prospects which now dazzle our eyes, i undertake to say, if you abolish them this session, you will be obliged to restore them or supply their place by a direct tax before the end of two years. will the gentleman say, that the direct tax was laid in order to enlarge the bounds of patronage? will he deny that this was a measure to which we had been urged for years by our adversaries, because they foresaw in it the ruin of federal power? my word for it, no administration will ever be strengthened by a patronage united with taxes which the people are sensible of paying. we were next told, that to get an army an indian war was necessary. the remark was extremely bald, as the honorable gentleman did not allege a single reason for the position. he did not undertake to state that it was a wanton war, or provoked by the government. he did not even venture to deny, that it was a war of defence, and entered into in order to protect our brethren on the frontiers from the bloody scalping-knife and murderous tomahawk of the savage. what ought the government to have done? ought they to have estimated the value of the blood which probably would be shed, and the amount of the devastation likely to be committed before they determined on resistance? they raised an army, and after great expense and various fortune, they have secured the peace and safety of the frontiers. but why was the army mentioned on this occasion, unless to fore-warn us of the fate which awaits them, and to tell us that their days are numbered? i cannot suppose that the gentleman mentioned this little army, distributed on a line of three thousand miles, for the purpose of giving alarm to three hundred thousand free and brave yeomanry, ever ready to defend the liberties of the country. the honorable gentleman proceeded to inform the committee, that the government, availing itself of the depredations of the algerines, created a navy. did the gentleman mean to insinuate, that this war was invited by the united states? has he any documents or proof to render the suspicion colorable? no, sir, he has none. he well knows that the algerine aggressions were extremely embarrassing to the government. when they commenced, we had no marine force to oppose to them. we had no harbors or places of shelter in the mediterranean. a war with these pirates could be attended with neither honor nor profit. it might cost a great deal of blood, and in the end it might be feared that a contest so far from home, subject to numberless hazards and difficulties, could not be maintained. what would gentlemen have had the government to do? i know there are those who are ready to answer: abandon the mediterranean trade. but would this have done? the corsairs threatened to pass the straits, and were expected in the atlantic. nay, sir, it was thought that our very coasts would not have been secure. will gentlemen go further, and say that the united states ought to relinquish their commerce. it has been said that we ought to be cultivators of the earth, and make the nations of europe our carriers. this is not an occasion to examine the solidity of this opinion; but i will only ask, admitting the administration were disposed to turn the pursuits of the people of this country from the ocean to the land, whether there is a power in the government, or whether there would be if we were as strong as the government of turkey, or even of france, to accomplish the object? with a sea-coast of seventeen hundred miles, with innumerable harbors and inlets, with a people enterprising beyond example, is it possible to say, you will have no ships or sailors, nor merchants? the people of this country will never consent to give up their navigation, and every administration will find themselves constrained to provide means to protect their commerce. in respect to the algerines, the late administration were singularly unfortunate. they were obliged to fight or pay them. the true policy was to hold a purse in one hand and a sword in the other. this was the policy of the government. every commercial nation in europe was tributary to those petty barbarians. it was not esteemed disgraceful. it was an affair of calculation, and the administration made the best bargain in their power. they have heretofore been scandalized for paying tribute to a pirate, and now they are criminated for preparing a few frigates to protect our citizens from slavery and chains! sir, i believe on this and many other occasions, if the finger of heaven had pointed out a course, and the government had pursued it, yet that they would not have escaped the censure and reproaches of their enemies. we were told that the disturbances in europe were made a pretext for augmenting the army and navy. i will not, mr. chairman, at present go into a detailed view of the events which compelled the government to put on the armor of defence, and to resist by force the french aggressions. all the world know the efforts which were made to accomplish an amicable adjustment of differences with that power. it is enough to state, that ambassadors of peace were twice repelled from the shores of france with ignominy and contempt. it is enough to say, that it was not till after we had drunk the cup of humiliation to the dregs, that the national spirit was roused to a manly resolution, to depend only on their god and their own courage for protection. what, sir, did it grieve the gentleman that we did not crouch under the rod of the mighty nation, and, like the petty powers of europe, tamely surrender our independence? would he have had the people of the united states relinquish without a struggle those liberties which had cost so much blood and treasure? we had not, sir, recourse to arms, till the mouths of our rivers were choked with french corsairs; till our shores, and every harbor, were insulted and violated; till half our commercial capital had been seized, and no safety existed for the remainder but the protection of force. at this moment a noble enthusiasm electrized the country; the national pulse beat high, and we were prepared to submit to every sacrifice, determined only that our independence should be the last. at that time an american was a proud name in europe; but i fear, much i fear, that in the course we are now likely to pursue, the time will soon arrive when our citizens abroad will be ashamed to acknowledge their country. the measures of grew out of the public feelings; they were loudly demanded by the public voice. it was the people who drove the government to arms, and not (as the gentleman expressed it) the government which pushed the people to the x, y, z of the political designs before they understood the a, b, c of their political principles. but what, sir, did the gentleman mean by his x, y, z? i must look for something very significant--something more than a quaintness of expression, or a play upon words--in what falls from a gentleman of his learning and ability. did he mean that the dispatches which contained those letters were impostures, designed to deceive and mislead the people of america--intended to rouse a false spirit not justified by events? though the gentleman had no respect for some of the characters of that embassy; though he felt no respect for the chief justice, or the gentleman appointed from south carolina--two characters as pure, as honorable, as exalted, as any the country can boast of--yet i should have expected that he would have felt some tenderness for mr. gerry, in whom his party had since given proofs of undiminished confidence. does the gentleman believe that mr. gerry would have joined in the deception, and assisted in fabricating a tale which was to blind his countrymen, and to enable the government to destroy their liberties? sir, i will not avail myself of the equivocations or confessions of talleyrand himself; i say these gentlemen will not dare publicly to deny what is attested by the hand and seal of mr. gerry. the truth of these despatches admitted, what was your government to do? give us, say the directory, , , livres for our own purse, and purchase $ , , of dutch debt, (which was worth nothing,) and we will receive your ministers, and negotiate for peace. it was only left to the government to choose between an unconditional surrender of the honor and independence of the country, or a manly resistance. can you blame, sir, the administration for a line of conduct which has reflected on the nation so much honor, and to which, under god, it owes its present prosperity? these are the events of the general government which the gentleman has reviewed in succession, and endeavored to render odious or suspicious. for all this i could have forgiven him, but there is one thing for which i will not, i cannot forgive him--i mean this attempt to disturb the ashes of the dead; to disturb the ashes of the great and good washington! sir, i might degrade by attempting to eulogize this illustrious character. the work is infinitely beyond my powers. i will only say, that as long as exalted talents and virtues confer honor among men, the name of washington will be held in veneration. after, mr. chairman, the honorable member had exhausted one quiver of arrows against the late executive, he opened another, equally poisoned, against the judiciary. he has told us, sir, that when the power of the government was rapidly passing from federal hands--after we had heard the thundering voice of the people which dismissed us from their service--we erected a judiciary, which we expected would afford us the shelter of an inviolable sanctuary. the gentleman is deceived. we knew better, sir, the characters who were to succeed us, and we knew that nothing was sacred in the eyes of infidels. no, sir, i never had a thought that any thing belonging to the federal government was holy in the eyes of those gentlemen. i could never, therefore, imagine that a sanctuary could be built up which would not be violated. i believe these gentlemen regard public opinion, because their power depends upon it; but i believe they respect no existing establishment of the government; and if public opinion could be brought to support them, i have no doubt they would annihilate the whole. i shall at present only say further, on this head, that we thought the reorganization of the judicial system a useful measure, and we consider it as a duty to employ the remnant of our power to the best advantage of our country. the honorable gentleman expressed his joy that the constitution had at last become sacred in our eyes: that we formerly held that it meant every thing or nothing. i believe, sir, that the constitution formerly appeared different in our eyes from what it appears in the eyes of the dominant party. we formerly saw in it the principles of a fair and goodly creation. we looked upon it as a source of peace, of safety, of honor, and of prosperity to the country. but now the view is changed; it is the instrument of wild and dark destruction; it is a weapon which is to prostrate every establishment to which the nation owes the unexampled blessings which it enjoys. the present state of the country is an unanswerable commentary upon our construction of the constitution. it is true that we made it mean much; and hope, sir, we shall not be taught by the present administration that it can mean even worse than nothing. the gentleman has not confined his animadversions to the individual establishment, but has gone so far as to make the judges the subject of personal invective. they have been charged with having transgressed the bounds of judicial duty, and become the apostles of a political sect. we have heard of their travelling about the country for little other purpose than to preach the federal doctrines to the people. sir, i think a judge should never be a partisan. no man would be more ready to condemn a judge who carried his political prejudices or antipathies on the bench. but i have still to learn that such a charge can be sustained against the judges of the united states. the constitution is the supreme law of the land, and they have taken pains, in their charges to grand juries, to unfold and explain its principles. upon similar occasions they have enumerated the laws which compose our criminal code, and when some of those laws have been denounced by the enemies of the administration as unconstitutional, the judges may have felt themselves called upon to express their judgments upon that point, and the reasons of their opinions. so far, but no farther, i believe, the judges have gone. in going thus far, they have done nothing more than faithfully discharge their duty. but if, sir, they have offended against the constitution or laws of the country, why are they not impeached? the gentleman now holds the sword of justice. the judges are not a privileged order; they have no shelter but their innocence. but, in any view, are the sins of the former judges to be fastened upon the new judicial system? would you annihilate a system because some men under part of it had acted wrong? the constitution has pointed out a mode of punishing and removing the men, and does not leave this miserable pretext for the wanton exercise of powers which is now contemplated. the honorable member has thought himself justified in making a charge of a serious and frightful nature against the judges. they have been represented going about searching out victims of the sedition law. but no fact has been stated; no proof has been adduced, and the gentleman must excuse me for refusing my belief to the charge, till it is sustained by stronger and better ground than assertion. if, however, mr. chairman, the eyes of the gentlemen are delighted with victims, if objects of misery are grateful to his feelings, let me turn his view from the walks of the judges to the track of the present executive. it is in this path we see the real victims of stern, uncharitable, unrelenting power. it is here, sir, we see the soldier who fought the battles of the revolution, who spilt his blood and wasted his strength to establish the independence of his country, deprived of the reward of his services, and left to pine in penury and wretchedness. it is along this path that you may see helpless children crying for bread, and gray hairs sinking in sorrow to the grave! it is here that no innocence, no merit, no truth, no services, can save the unhappy sectary who does not believe in the creed of those in power. i have been forced upon this subject, and before i leave it, allow me to remark, that without inquiring into the right of the president to make vacancies in office during the recess of the senate, but admitting the power to exist, yet that it never was given by the constitution to enable the chief magistrate to punish the insults, to revenge the wrongs, or to indulge the antipathies of the man. if the discretion exists, i have no hesitation in saying that it is abused when exercised from any other motives than the public good. and when i see the will of a president precipitating from office men of probity, knowledge, and talents, against whom the community has no complaint, i consider it as a wanton and dangerous abuse of power. and when i see men who have been the victims of this abuse of power, i view them as the proper objects of national sympathy and commiseration. among the causes of impeachment against the judges, is their attempt to force the sovereignties of the states to bow before them. we have heard them called an ambitious body politic; and the fact i allude to has been considered as full proof of the inordinate ambition of the body. allow me to say, sir, the gentleman knows too much not to know that the judges are not a body politic. he supposed, perhaps, there was an odium attached to the appellation, which it might serve his purposes to connect with the judges. but, sir, how do you derive any evidence of the ambition of the judges from their decision that the states under our federal compact were compellable to do justice? can it be shown, or even said, that the judgment of the court was a false construction of the constitution? the policy of later times on this point has altered the constitution, and, in my opinion, has obliterated its fairest features. i am taught by my principles that no power ought to be superior to justice. it is not that i wish to see the states humbled in dust and ashes; it is not that i wish to see the pride of any man flattered by their degradation; but it is that i wish to see the great and the small, the sovereign and the subject, bow at the altar of justice, and submit to those obligations from which the deity himself is not exempt. what was the effect of this provision in the constitution? it prevented the states being the judges in their own cause, and deprived them of the power of denying justice. is there a principle of ethics more clear than that a man ought not to be a judge in his own cause, and is not the principle equally strong when applied not to one man but to a collective body? it was the happiness of our situation which enabled us to force the greatest state to submit to the yoke of justice, and it would have been the glory of the country in the remotest times, if the principle in the constitution had been maintained. what had the states to dread? could they fear injustice when opposed to a feeble individual? has a great man reason to fear from a poor one? and could a potent state be alarmed by the unfounded claim of a single person? for my part i have always thought that an independent tribunal ought to be provided to judge on the claims against this government. the power ought not to be in our own hands. we are not impartial, and are therefore liable, without our knowledge, to do wrong. i never could see why the whole community should not be bound by as strong an obligation to do justice to an individual, as one man is bound to do it to another. in england the subject has a better chance for justice against the sovereign than in this country a citizen has against a state. the crown is never its own arbiter, and they who sit in judgment have no interest in the event of their decision. the judges, sir, have been criminated for their conduct in relation to the sedition act, and have been charged with searching for victims who were sacrificed under it. the charge is easily made, but has the gentleman the means of supporting it? it was the evident design of the gentleman to attach the odium of the sedition law to the judiciary; on this score the judges are surely innocent. they did not pass the act; the legislature made the law, and they were obliged by their oaths to execute it. the judges decided the law to be constitutional, and i am not now going to agitate the question. i did hope, when the law passed, that its effect would be useful. it did not touch the freedom of speech, and was designed only to restrain the enormous abuses of the press. it went no farther than to punish malicious falsehoods, published with the wicked intention of destroying the government. no innocent man ever did or could have suffered under the law. no punishment could be inflicted till a jury was satisfied that a publication was false, and that the party charged, knowing it to be false, had published it with an evil design. the misconduct of the judges, however, on this subject, has been considered by the gentleman the more aggravated, by an attempt to extend the principles of the sedition act, by an adoption of those of the common law. connected with this subject, such an attempt was never made by the judges. they have held, generally, that the constitution of the united states was predicated upon an existing common law. of the soundness of that opinion, i never had a doubt. i should scarcely go too far, were i to say, that, stripped of the common law, there would be neither constitution nor government. the constitution is unintelligible without reference to the common law. and were we to go into our courts of justice with the mere statutes of the united states, not a step could be taken, not even a contempt could be punished. those statutes prescribe no forms of pleadings; they contain no principles of evidence; they furnish no rule of property. if the common law does not exist in most cases, there is no law but the will of the judge. i have never contended that the whole of the common law attached to the constitution, but only such parts as were consonant to the nature and spirit of our government. we have nothing to do with the law of the ecclesiastical establishment, nor with any principle of monarchical tendency. what belongs to us, and what is unsuitable, is a question for the sound discretion of the judges. the principle is analogous to one which is found in the writings of all jurists and commentators. when a colony is planted, it is established subject to such parts of the law of the mother country as are applicable to its situation. when our forefathers colonized the wilderness of america, they brought with them the common law of england. they claimed it as their birthright, and they left it as the most valuable inheritance to their children. let me say, that this same common law, now so much despised and vilified, is the cradle of the rights and liberties which we now enjoy. it is to the common law we owe our distinction from the colonists of france, of portugal, and of spain. how long is it since we have discovered the malignant qualities which are now ascribed to this law? is there a state in the union which has not adopted it, and in which it is not in force? why is it refused to the federal constitution? upon the same principle that every power is denied which tends to invigorate the government. without this law the constitution becomes, what perhaps many gentlemen wish to see it, a dead letter. for ten years it has been the doctrine of our courts, that the common law was in force, and yet can gentlemen say, that there has been a victim who has suffered under it? many have experienced its protection, none can complain of its oppression. in order to demonstrate the aspiring ambition of this body politic, the judiciary, the honorable gentleman stated with much emphasis and feeling that the judges had been hardy enough to send their mandate into the executive cabinet. was the gentleman, sir, acquainted with the fact when he made this statement? it differs essentially from what i know i have heard upon the subject. i shall be allowed to state the fact. several commissions had been made out by the late administration for justices of the peace of this territory. the commissions were complete; they were signed and sealed, and left with the clerks of the office of state to be handed to the persons appointed. the new administration found them on the clerk's table, and thought proper to withhold them. these officers are not dependent on the will of the president. the persons named in the commissions considered that their appointments were complete, and that the detention of their commissions was a wrong, and not justified by the legitimate authority of the executive. they applied to the supreme court for a rule upon the secretary of state, to show cause why a mandamus should not issue, commanding him to deliver up the commissions. let me ask, sir, what could the judges do? the rule to show cause was a matter of course upon a new point, at least doubtful. to have denied it, would have been to shut the doors of justice against the parties. it concludes nothing, neither the jurisdiction nor the regularity of the act. the judges did their duty; they gave an honorable proof of their independence. they listened to the complaint of an individual against your president, and have shown themselves disposed to grant redress against the greatest man in the government. if a wrong has been committed, and the constitution authorizes their interference, will gentlemen say that the secretary of state, or even the president, is not subject to law? and if they violate the law, where can we apply for redress but to our courts of justice? but, sir, it is not true that the judges issued their mandate to the executive; they have only called upon the secretary of state to show them that what he has done is right. it is but an incipient proceeding which decides nothing. to show the inexpediency of the present bill, i shall endeavor to prove the expediency of the judicial law of the last session. in doing this it will be necessary to take a view of the leading features of the pre-existing system, to inquire into its defects, and to examine how far the evils complained of were remedied by the provisions of the late act. it is not my intention to enter into the details of the former system; it can be necessary only to state so much as will distinctly show its defects. there existed, sir, a supreme court, having original cognizance in a few cases, but principally a court of appellate jurisdiction. this was the great national court of dernier resort. before this tribunal, questions of unlimited magnitude and consequence, both of a civil and political nature, received their final decision; and i may be allowed to call it the national crucible of justice, in which the judgments of inferior courts were to be reduced to their elements and cleansed from every impurity. there was a circuit court, composed in each district of a judge of the supreme court and the district judge. this was the chief court of business both of a civil and criminal nature. in each district a court was established for affairs of revenue, and of admiralty and maritime jurisdiction. it is not necessary for the purposes of the present argument to give a more extensive outline of the former plan of our judiciary. we discover that the judges of the supreme court, in consequence of their composing a part of the circuit courts, were obliged to travel from one extremity to the other of this extensive country. in order to be in the court-house two months in the year they were forced to be upon the road six. the supreme court being the court of last resort, having final jurisdiction over questions of incalculable importance, ought certainly to be filled with men not only of probity, but of great talents, learning, patience, and experience. the union of these qualities is rarely, very rarely found in men who have not passed the meridian of life. my lord coke tells us no man is fit to be a judge until he has numbered the lucubrations of twenty years. men of studious habits are seldom men of strong bodies. in the course of things it could not be expected that men fit to be judges of your supreme courts would be men capable of traversing the mountains and wildernesses of this extensive country? it was an essential and great defect in this court, that it required in men the combination of qualities, which it is a phenomenon to find united. it required that they should possess the learning and experience of years and the strength and activity of youth. i may say further, mr. chairman, that this court, from its constitution, tended to deterioration and not to improvement. your judges, instead of being in their closets and increasing by reflection and study their stock of wisdom and knowledge, had not even the means of repairing the ordinary waste of time. instead of becoming more learned and more capable, they would gradually lose the fruits of their former industry. let me ask if this was not a vicious construction of a court of the highest authority and greatest importance in the nation? in a court from which no one had an appeal and to whom it belonged to establish the leading principles of national jurisprudence? in the constitution of this court, as a court of last resort, there was another essential defect. the appeals to this court are from the circuit courts. the circuit court consists of the district judge and a judge of the supreme court. in cases where the district judge is interested, where he has been counsel, and where he has decided in the court below, the judge of the supreme court alone composes the circuit court. what, then, is substantially the nature of this appellate jurisdiction? in truth and practice, the appeal is from a member of a court to the body of the same court. the circuit courts are but emanations of the supreme court. cast your eyes upon the supreme court; you see it disappear, and its members afterwards arising in the shape of circuit judges. behold the circuit judges; they vanish, and immediately you perceive the form of the supreme court appearing. there is, sir, a magic in this arrangement which is not friendly to justice. when the supreme court assembles, appeals come from the various circuits of the united states. there are appeals from the decisions of each judge. the judgments of each member pass in succession under the revision of the whole body. will not a judge, while he is examining the sentence of a brother to-day, remember that that brother will sit in judgment upon his proceedings to-morrow? are the members of a court thus constituted, free from all motive, exempt from all bias, which could even remotely influence opinion on the point of strict right? and yet let me ask emphatically, whether this court, being the court of final resort, should not be so constituted that the world should believe and every suitor be satisfied, that in weighing the justice of a cause, nothing entered the scales but its true merits? your supreme court, sir, i have never considered as any thing more than the judges of assize sitting in bank. it is a system with which perhaps i should find no fault, if the judges sitting in bank did not exercise a final jurisdiction. political institutions should be so calculated as not to depend upon the virtues, but to guard against the vices and weaknesses of men. it is possible that a judge of the supreme court would not be influenced by the _esprit du corps_, that he would neither be gratified by the affirmance, nor mortified by the reversal of his opinions; but this, sir, is estimating the strength and purity of human nature upon a possible, but not on its ordinary scale. i believe, said mr. b., that in practice the formation of the supreme court frustrated, in a great degree, the design of its institution. i believe that many suitors were discouraged from seeking a revision of the opinions of the circuit court, by a deep impression of the difficulties to be surmounted in obtaining the reversal of the judgment of a court from the brethren of the judge who pronounced the judgment. the benefit of a court of appeals, well constituted, is not confined to the mere act of reviewing the sentence of an inferior court; but is more extensively useful by the general operation of the knowledge of its existence upon inferior courts. the power of uncontrollable decision is of the most delicate and dangerous nature. when exercised in the courts, it is more formidable than by any other branch of our government. it is the judiciary only which can reach the person, the property, or life of an individual. the exercise of their power is scattered over separate cases, and creates no common cause. the great safety under this power arises from the right of appeal. a sense of this right combines the reputation of the judge with the justice of the cause. in my opinion, it is a strong proof of the wisdom of a judicial system when few causes are carried into the court of the last resort. i would say, if it were not paradoxical, that the very existence of a court of appeals ought to destroy the occasion for it. the conscience of the judge, sir, will no doubt be a great check upon him in the unbounded field of discretion created by the uncertainty of law; but i should, in general cases, more rely upon the effect produced by his knowledge, that an inadvertent or designed abuse of power was liable to be corrected by a superior tribunal. a court of appellate jurisdiction, organized upon sound principles, should exist, though few causes arose for their decision; for it is surely better to have a court and no causes, than to have causes and no court. i now proceed, sir, to consider the defects which are plainly discernible, or which have been discovered by practice in the constitution of the circuit courts. these courts, from information which i have received, i apprehend were originally constructed upon a fallacious principle. i have heard it stated that the design of placing the judges of the supreme court in the circuit courts, was to establish uniform rules of decision throughout the united states. it was supposed that the presiding judges of the circuit courts, proceeding from the same body, would tend to identify the principles and rules of decision in the several districts. in practice, a contrary effect has been discovered to be produced by the peculiar organization of these courts. in practice we have found not only a want of uniformity of rule between the different districts, but no uniformity of rule in the same district. no doubt there was a uniformity in the decisions of the same judge; but as the same judge seldom sat twice successively in the same district, and sometimes not till after an interval of two or three years, his opinions were forgotten or reversed before he returned. the judges were not educated in the same school. the practice of the courts, the forms of proceeding, as well as the rules of property, are extremely various in the different quarters of the united states. the lawyers of the eastern, the middle, and southern states, are scarcely professors of the same science. these courts were in a state of perpetual fluctuation. the successive terms gave you courts in the same district, as different from each other as those of connecticut and virginia. no system of practice could grow up, no certainty of rule could be established. the seeds sown in one term scarcely vegetated before they were trodden under foot. the condition of a suitor was terrible; the ground was always trembling under his feet. the opinion of a former judge was no precedent to his successor. each considered himself bound to follow the light of his own understanding. to exemplify these remarks, i will take the liberty of stating a case which came under my own observation. an application before one judge was made to quash an attachment in favor of a subsequent execution creditor; the application was resisted upon two grounds, and the learned judge, to whom the application was first made, expressing his opinion in support of both grounds, dismissed the motion. at the succeeding court, a different judge presided, and the application was renewed and answered upon the same grounds. the second learned judge was of opinion, that one point has no validity, but he considered the other sustainable, and was about also to dismiss the motion, but upon being pressed, at last consented to grant a rule to show cause. at the third term, a third learned judge was on the bench, and though the case was urged upon its former principles, he was of opinion, that both answers to the application were clearly insufficient, and accordingly quashed the attachment. when the opinions of his predecessors were cited, he replied, that every man was to be saved by his own faith. upon the opinion of one judge, a suitor would set out in a long course of proceedings, and after losing much time and wasting much money, he would be met by another judge, who would tell him he had mistaken his road, that he must return to the place from which he started, and pursue a different track. thus it happened as to the chancery process to compel the appearance of a defendant. some of the judges considered themselves bound by the rules in the english books, while others conceived that a power belonged to the court, upon the service of a subpoena, to make a short rule for the defendant to appear and answer, or that the bill should be taken _pro confesso_. a case of this kind occurred where much embarrassment was experienced. in the circuit court for the district of pennsylvania, a bill in chancery was filed against a person, who then happened to be in that district, but whose place of residence was in the north-western territory. the subpoena was served, but there was no answer nor appearance. the court to which the writ was returned, without difficulty, upon an application, granted a rule for the party to appear and answer at the expiration of a limited time, or that the bill be taken _pro confesso_. a personal service of this rule being necessary, the complainant was obliged to hire a messenger to travel more than a thousand miles to serve a copy of the rule. at the ensuing court, affidavit was made of the service, and a motion to make the rule absolute. the scene immediately changed, a new judge presided, and it was no longer the same court. the authority was called for to grant such a rule. was it warranted by any act of congress, or by the practice of the state? it was answered there is no act of congress--the state has no court of chancery. but this proceeding was instituted, and has been brought to its present stage at considerable expense, under the direction of this court. the judge knew of no power the court had to direct the proceeding, and he did not consider that the complainant could have a decree upon this bill without going through the long train of process found in the books of chancery practice. the complainant took this course, and at a future time was told by another judge, that he was incurring an unnecessary loss of time and money, and that a common rule would answer his purpose. i ask you, mr. chairman, if any system could be devised more likely to produce vexation and delay? surely, sir, the law is uncertain enough in itself, and its paths sufficiently intricate and tedious, not to require that your suitors should be burdened with additional embarrassments by the organization of your courts. the circuit is the principal court of civil and criminal business; the defects of this court were, therefore, most generally and sensibly felt. the high characters of the judges at first brought suitors into the courts; but the business was gradually declining, though causes belonging to the jurisdiction of the courts were multiplying, the continual oscillation of the court baffled all conjecture as to the correct course of the proceeding or the event of a cause. the law ceased to be a science. to advise your client it was less important to be skilled in the books than to be acquainted with the character of the judge who was to preside. when the term approached, the inquiry was, what judge are we to have? what is his character as a lawyer? is he acquainted with chancery law? is he a strict common lawyer, or a special pleader? when the character of the judge was ascertained, gentlemen would then consider the nature of their causes, determine whether it was more advisable to use means to postpone or to bring them to a hearing. the talents of the judges rather increased the evil, than afforded a corrective for the vicious constitution of these courts. they had not drawn their knowledge from the same sources. their systems were different, and hence the character of the court more essentially changed at each successive term. these difficulties and embarrassments banished suitors from the court, and without more than a common motive, recourse was seldom had to the federal tribunals. i have ever considered it, also, as a defect in this court, that it was composed of judges of the highest and lowest grades. this, sir, was an unnatural association; the members of the court stood on ground too unequal to allow the firm assertion of his opinion to the district judge. instead of being elevated, he felt himself degraded by a seat upon the bench of this court. in the district court he was every thing, in the circuit court he was nothing. sometimes he was obliged to leave his seat, while his associate reviewed the judgment which he had given in the court below. in all cases he was sensible that the sentences in the court in which he was, were subject to the revision and control of a superior jurisdiction where he had no influence, but the authority of which was shared by the judge with whom he was acting. no doubt in some instances the district judge was an efficient member of this court, but this never arose from the nature of the system, but from the personal character of the man. i have yet, mr. chairman, another fault to find with the ancient establishment of the circuit courts. they consisted only of two judges, and sometimes of one. the number was too small, considering the extent and importance of the jurisdiction of the court. will you remember, sir, that they held the power of life and death, without appeal? that their judgments were final over sums of two thousand dollars, and their original jurisdiction restrained by no limits of value, and that this was the court to which appeals were carried from the district court. i have often heard, sir, that in a multitude of counsel there was wisdom, and if the converse of the maxim be equally true, this court must have been very deficient. when we saw a single judge reversing the judgment of the district court, the objection was most striking, but the court never had the weight which it ought to have possessed, and would have enjoyed had it been composed of more members. but two judges belonged to the court, and inconvenience was sometimes felt from a division of their opinions. and this inconvenience was but poorly obviated by the provision of the law that in such cases the cause should be continued to the succeeding term, and receive its decision from the opinion of the judge who should then preside. i do not pretend, mr. chairman, to have enumerated all the defects which belonged to the former judicial system. but i trust those which i have pointed out, in the minds of candid men, will justify the attempt of the legislature to revise that system, and to make a fairer experiment of that part of the plan of our constitution which regards the judicial power. the defects, sir, to which i have alluded, had been a long time felt and often spoken of. remedies had frequently been proposed. i have known the subject brought forward in congress or agitated in private, ever since i have had the honor of a seat upon this floor. i believe, sir, a great and just deference for the author of the ancient scheme prevented any innovation upon its material principles; there was no gentleman who felt the deference more than myself, nor should i have ever hazarded a change upon speculative opinion. but practice had discovered defects which might well escape the most discerning mind in planning the theory. the original system could not be more than experiment; it was built upon no experience. it was the first application of principles to a new state of things. the first judicial law displays great ability, and it is no disparagement of the author to say its plan is not perfect. i know, sir, that some have said, and perhaps not a few have believed, that the new system was introduced not so much with a view to its improvement of the old, as to the places which it provided for the friends of the administration. this is a calumny so notoriously false, and so humble, as not to require nor to deserve an answer upon this floor. it cannot be supposed that the paltry object of providing for sixteen unknown men could have ever offered an inducement to a great party basely to violate their duty, meanly to sacrifice their character, and foolishly to forego all future hopes. i now come, mr. chairman, to examine the changes which were made by the late law. this subject has not been correctly understood. it has every where been erroneously represented. i have heard much said about the additional courts created by the act of last session. i perceive them spoken of in the president's message. in the face of this high authority, i undertake to state, that no additional court was established by that law. under the former system there was one supreme court, and there is but one now. there were seventeen district courts, and there are no more now. there was a circuit court held in each district, and such is the case at present. some of the district judges are directed to hold their courts at new places, but there is still in each district but one district court. what, sir, has been done? the unnatural alliance between the supreme and district courts has been severed, but the jurisdiction of both these courts remains untouched. the power or authority of neither of them has been augmented or diminished. the jurisdiction of the circuit court has been extended to the cognizance of debts of four hundred dollars, and this is the only material change in the power of that court. the chief operation of the late law is a new organization of the circuit courts. to avoid the evils of the former plan, it became necessary to create a new corps of judges. it was considered that the supreme court ought to be stationary, and to have no connection with the judges over whose sentences they had an appellate jurisdiction. to have formed a circuit court out of the district judges, would have allowed no court of appeal from the district court, except the supreme court, which would have been attended with great inconvenience. but this scheme was opposed by a still greater difficulty. in many districts the duties of the judge require a daily attention. in all of them business of great importance may on unexpected occurrences require his presence. this plan was thought of; it was well examined and finally rejected, in consequence of strong objections to which it was liable. nothing therefore remained but to compose the circuit court of judges distinct from those of the other courts. admitting the propriety of excluding from this court the judges of the supreme and district courts, i think the late congress cannot be accused of any wanton expense, nor even of a neglect of economy in the new establishment. this extensive country has been divided into six circuits, and three judges appointed for each circuit. most of the judges have twice a year to attend a court in three states, and there is not one of them who has not to travel further, and who in time will not have more labor to perform than any judge of the state courts. when we call to mind that the jurisdiction of this court reaches the life of the citizen, and that in civil cases its judgments are final to a large amount, certainly it will not be said that it ought to have been composed of less than three judges. one was surely not enough, and if it had been doubtful whether two were not sufficient, the inconvenience which would have frequently arisen from an equal division of opinion, justifies the provision which secures a determination in all cases. it was, additionally, very material to place on the bench of this court a judge from each state, as the court was in general bound to conform to the law and the practice of the several states. i trust, sir, the committee are satisfied that the number of judges which compose the circuit court is not too great, and that the legislature would have been extremely culpable to have committed the high powers of this court to fewer hands. let me now ask, if the compensation allowed to these judges is extravagant? it is little more than half the allowance made to the judges of the supreme court. it is but a small proportion of the ordinary practice of those gentlemen of the bar, who are fit, and to whom we ought to look to fill the places. you have given a salary of two thousand dollars. the puisne judges of pennsylvania, i believe, have more. when you deduct the expenses of the office, you will leave but a moderate compensation for service, but a scanty provision for a family. when, mr. chairman, gentlemen coolly consider the amendments of the late law, i flatter myself their candor will at least admit that the present modification was fairly designed to meet and remedy the evils of the old system. the supreme court has been rendered stationary. men of age, of learning, and of experience, are now capable of holding a seat on the bench; they have time to mature their opinions in causes on which they are called to decide, and they have leisure to devote to their books, and to augment their store of knowledge. it was our hope, by the present establishment of the court, to render it the future pride, and honor, and safety of the nation. it is this tribunal which must stamp abroad the judicial character of our country. it is here that ambassadors and foreign agents resort for justice; and it belongs to this high court to decide finally, not only on controversies of unlimited value between individuals, and on the more important collision of state pretensions, but also upon the validity of the laws of the states, and of this government. will it be contended that such great trusts ought to be reposed in feeble or incapable hands? it has been asserted that this court will not have business to employ it. the assertion is supported neither by what is past, nor by what is likely to happen. during the present session of congress, at their last term, the court was fully employed for two weeks in the daily hearing of causes. but its business must increase. there is no longer that restraint upon appeals from the circuit court, which was imposed by the authority of the judge of the court to which the appeal was to be carried; no longer will the apprehension of a secret unavoidable bias in favor of the decision of a member of their own body, shake the confidence of a suitor, in resorting to this court, who thinks that justice has not been done to him in the court below. the progressive increase of the wealth and population of the country, will unavoidably swell the business of the court. but there is a more certain and unfailing source of employment, which will arise in the appeals from the courts of the national territory. from the courts of original cognizance in this territory, it affords the only appellate jurisdiction. if gentlemen will look to the state of property of a vast amount in this city, they must be satisfied that the supreme court will have enough to do for the money which is paid them. mr. randolph said that he did not rise for the purpose of assuming the gauntlet which had been so proudly thrown by the goliath of the adverse party; not but that he believed even his feeble powers, armed with the simple weapon of truth, a sling and a stone, capable of prostrating on the floor that gigantic boaster, armed cap-à-pie as he was; but that he was impelled by the desire to rescue from misrepresentation the arguments of his colleague, (mr. giles,) who was now absent during indisposition. that absence, said mr. r., is a subject of peculiar regret to me, not only because i could have wished his vindication to have devolved on abler hands, but because he had to-day lost the triumph which, yesterday, he could not have failed to enjoy; that of seeing his opponent reduced to the wretched expedient of perverting and mutilating his arguments through inability to meet and answer them. mr. r. said, that this was the strongest proof which could be given of inadequacy to refute any position. he, therefore, left to the gentleman the victory which he had obtained over his own arguments; but, while he felt no disposition to disturb him in this enjoyment, he hoped he should be permitted to correct some of the misstatements which had been made of his colleague's observations. in the view which he had taken of the conduct of our predecessors, in the chain of whose measures the law now proposed to be repealed formed an important link, the funding of the debt of the united states, and the assumption of those of the individual states, were comprehended. an attempt is made to construe this disapprobation into a design of violating the public faith. mr. r. denied that one syllable had fallen from his colleague, indicative of a right, or disposition on his part, to withhold the payment of any public engagements. against these destructive measures his colleague had raised his voice; against the fatal and absurd maxim, that a public debt was a public blessing, he had indeed protested; but not a word escaped his lips, because no such sentiment lurked in his heart, which could be construed into a declaration that the present legislature possessed the same power over the engagements of former legislatures which they possessed over ordinary laws; that of modifying or abrogating them with the same freedom which had been exercised in their establishment. since the gentleman had betrayed such peculiar sensibility on the subject of the debt, mr. r. relied on his support, when a measure should be brought forward for its final and rapid extinguishment, not by a sponge, but by a fair reimbursement of one hundred cents for every dollar due. on other topics, the algerine depredations, indian war, &c., it might as easily be shown that the representation had been equally unfair. he should not dwell upon them, because they were less calculated to make the unfavorable impression on the public mind, which had been attempted on the subject of the debt. he would dismiss them with a single remark: the uses to which these incidents were applied, and not the events themselves, formed the subject of his colleague's animadversions. but to the long catalogue of unpopular acts which have deprived their authors of the public confidence, the gentleman tells us, he and his friends were "goaded" by the clamor of their opponents. he solemnly assures us, that in the adoption of those measures they clearly foresaw the downfall of their power; but impressed with a conviction that they were essential to the public good, and disdaining all considerations of a personal nature, they nobly sacrificed their political existence on the altar of the general welfare; and we are called upon now to revere in them the self-immolated victims at the shrine of patriotism. these are, indeed, lofty pretensions; and although i shall not peremptorily deny, in this age of infidelity, i may be permitted to doubt them; for i call upon this committee to decide whether, in this day's discussion, the gentleman has evinced that purity of heart, or that elevation of sentiment, which could justify me in clothing him with the attributes of curtius or of the decii? i wish especially to know, whether the common law of libels which attaches to this constitution, be the doctrine laid down by lord mansfield, or that which has immortalized mr. fox? and whether the jurisdiction thus usurped over the press, in defiance of an express amendatory clause, which must be construed to annul every previous provision, if any such there be, which comes within its purview, be an example adduced to illustrate the position, which i certainly shall never contest, that "what the constitution does not permit to be done by direct means, cannot, constitutionally, be indirectly effected?" but to reconcile us to this usurpation, we are informed, that the principles of the common law are favorable only to liberty; that they neither have been, nor can be enlisted in the cause of persecution. if i did not misunderstand the gentleman, he said that no prosecution had occurred under that law. he has therefore never heard of the case of luther baldwin. i speak of the new jersey case; nor that of williams. other instances, i learn from high authority, have taken place in vermont. mr. r. said he was unhackneyed in the ways of majorities; his experience had been very limited; but was he to conclude, from these observations, that it was the common law, the uniform usage heretofore of this government, for this house to be the mere instrument for effecting the executive will, a chamber for enregistering presidential edicts? it is said, that the document on this subject was one which the executive had no right to lay before the house. when did the right of the president to recommend modifications of the judiciary system cease? such recommendations had heretofore formed a prominent feature in two successive executive communications made at the commencement of two successive sessions of congress. did the right of the executive to recommend, and of congress to act, cease at the precise period when the faultless model of the last session was perfected? mr. r. said, that the gentleman from delaware had taken such a range, and thrown out such a vast deal of matter, that, in attempting to reply to some of his observations, he was necessarily led into many desultory remarks. the present system, it seems, was necessary, from the inevitable corporeal infirmity of the judges: the unavoidable effect of the tedious probation indispensable to that venerable station. let us compare the former practice with the present theory. the judge of one of the two districts into which virginia had been divided, was contemporary with him at school. he is certainly neither an infirm nor hoary sage. his associate from maryland had been an active and gallant partisan at the siege of pensacola, during our revolutionary war: not contending, however, under those banners where you would have expected to find a man who occupies so dignified a station under the government of the united states; but fighting the battles of his king. bravely, yet, alas! unsuccessfully contending against the spirit of insubordination and jacobinism which threatens to sweep from the earth every thing valuable to man, against which the gentleman from delaware is also eager to enter the lists. the selections which have been made from either house of congress seem to have had as little reference to age and experience, which are said to be indispensable to the judicial character. upon a subject connected with those appointments, we have been told that the executive had a right to presume a vacancy in all cases where a judge of an inferior tribunal had been appointed to a seat on the bench of a superior court; and that the new office vests, not at the time when the judge is notified of his promotion, nor at the date of his acceptance, but from the date of his commission. mr. r. said, that he certainly did not mean to contend with the gentleman from delaware on points of law, yet he would put a question to that gentleman. it will readily be conceded, that the vacating of the former office is the condition of the acceptance of the latter. suppose a judge, after the date of his new commission, but prior to his notification or acceptance thereof, perform a judicial act, was that act, therefore, invalid? could his successor, on the receipt of his commission, exercise the functions of judge, prior to the resignation of the former incumbent? could any office be at the same time in the possession of two persons? did not this doctrine imply a right on part of the government to anticipate the resignation of any judge, to compel his assent to an act vacating his office? the new commission, under these circumstances, either did or did not give a claim to its possessor on the office. if it did not, the executive had a right to withhold it. if it did, a judge may be expelled from office, without his consent, and provided, at any time afterwards he shall acquiesce, the expulsion is legal. besides, by what authority does a member of this house hold his seat under an election previous to his appointment of district judge of north carolina? for this office a commission was issued, as i am credibly informed. but, sir, we shall be told, that the manner in which this affair was transacted ought not to affect our decision. it is with me an irrefragable proof of the inexpediency of the law, and of course conclusive evidence of the expediency of its repeal. but the constitution is said to forbid it. and here permit me to express my satisfaction, that gentlemen have agreed to construe the constitution by the rules of common sense. this mode is better adapted to the capacity of unprofessional men, and will preclude the gentleman from arrogating to himself, and half a dozen other characters in this committee, the sole right of expounding that instrument, as he had done in the case of the law which is proposed to be repealed. indeed, as one of those who would be unwilling to devolve upon that gentleman the high priesthood of the constitution, and patiently submit to technical expositions which i might not even comprehend, i am peculiarly pleased that we are invited to exercise our understandings in the construction of this instrument. a precedent, said to be quite analogous, has been adduced--the decision of the judges of virginia, on a similar question. a pamphlet, entitled "a friend to the constitution," has been quoted. public opinion informs me that this is the production of the pen of a gentleman who holds a pre-eminent station on the federal bench. am i so to consider it? if this be understood, it is entitled to high respect; the _facts_, at least, must be unquestionable. the courts of virginia consisted of one general court of common law; a court of chancery, composed of three judges; and a court of admiralty. the judges of all those courts held their office during good behavior; and did, by law, constitute a court of appeals. the general court becoming manifestly incompetent to the extensive duties assigned to it, a system of circuit courts was adopted in , and the judges of the court of appeals were appointed to ride the circuits. this law the judges pronounced unconstitutional, and agreed, unanimously, to remonstrate against it. after lamenting the necessity of deciding between the constitution and the law, and that, in a case personally interesting to themselves, they say, "on this view of the subject, the following alternatives presented themselves; either to decide the question, or resign their offices. the latter would have been their choice, if they could have considered those questions as affecting their individual interests only." yes, sir, and such was the character of those men, that none doubted the sincerity of this declaration. they then go on to declare, that the legislature have no right even to increase their duties, by a modification of the courts; a privilege for which no one here has contended. in respect, much more, it is believed, to the characters of those venerable men, than to this opinion, the legislature did not enforce the new regulations. the law was new-modelled, a separate court of appeals established, the judges of which were to be elected by joint ballot, in conformity with the constitution. new members were added to the general court, and it was declared to be their duty to ride the circuits. the judges of chancery, of the general court, and court of admiralty, who had not been elected, in pursuance of the constitution, judges of appeals, but on whom that duty was imposed by law, were relieved from the further discharge of it. in this arrangement several of the judges were understood to have been consulted; and on the ballot the six senior judges were elected, five into the court of appeals, and the sixth in the court of chancery. nevertheless, against this law the judges also protested, as an invasion of the judiciary establishment, denying the right of the legislature to deprive them of office in any other mode than is pointed out in the constitution, (impeachment;) but to make way for the present salutary system, they do, in their mere free will, resign their appointments as judges of the court of appeals, and as they do not hold any separate commission for that office, which might be returned, they do order the same to be recorded. now, sir, i shall not contend, as i certainly might, and with great reason, that the practice of virginia must be considered as settling the constitutional doctrine of the state, the opinions of individuals, however enlightened and respectable, notwithstanding; under which practice two chancellors have been removed from their office of judges in chancery, as well as of appeals, and the judges of the general court and court of admiralty also divested of their seats on the bench of the court of appeals, although a court of appeals was supposed necessary, and was retained in the new system; nor shall i insist on the disparity between the stability of the judicial branch of government in the eye of the constitution of virginia, and that of the united states, respectively, as surely i might. for the constitution of virginia has a retrospect to pre-existing judicial establishments, which experience had tested, which were allowed to be beneficial, and which it is contended were sanctioned by it. that of the united states, formed when the confederacy had no such establishments, is to be created, from time to time: in other words, to be modified, as experience shall point out their defects--this power being devolved on a body constituted by express _unalterable_ provisions. no, sir, i shall not dilate upon these forcible topics; i will concede, for argument sake, that the doctrine contended for by the judges of virginia, was the true constitutional doctrine, and will apply it to the bill on your table, having first applied it to the act on which it is intended to operate. previous to the existence of that act, the duty of judge of the circuit court was performed by the judges of the supreme court, who constituted a court of appeals, and by the judges of the respective districts. these were judges of the circuit court to every intent and purpose, as completely as the judges of virginia were judges of appeals. by the operation of the law of the last session, they have been divested of this _office_, and other persons have been appointed to it. much stress is laid, much ingenuity exercised to make metaphysical distinctions between the court and the office. i will grant all that gentlemen contend for, that there is a wide distinction. does it affect the case? does it alter the fact? the late circuit courts were not only abolished--the persons holding the office of judge of those courts no longer hold it; they have neither been impeached, nor have they resigned. they have not even accepted any new appointment inconsistent with it, and by which it became vacant. the function of judge of the circuit court does or does not constitute an office. if it does, then the judges of the supreme and district courts have been deprived of their offices, (the discharge of whose duties, be it remembered, constitutes no small part of the consideration for which they receive their salaries.) if it does not, then the circuit judges are not now about to be deprived of their offices. on the passage of the law of last session, did we hear any protest against its unconstitutionality from the supreme or district courts? of any resignations of the office of judge of the circuit court, in order "that a salutary system might take effect?" and yet, sir, is not that office as distinct from that of supreme or district judge, as the office of judge of appeals in virginia is from that of judge of the general court, chancery, or admiralty? are not the jurisdictions of those courts separate and distinct? both never having original jurisdiction of the same subjects; and an appeal lying from the inferior to the superior tribunal, as in virginia, although the officers of those tribunals may be the same individuals? what, then, is the difference between taking the office of appellate jurisdiction from the judge who possessed original jurisdiction, or taking the office of original jurisdiction from the appellate judge? how is the independence of the judge more affected by the one act than by the other? to prove the unconstitutionality of this bill, then, by a recurrence to the doctrine of the judiciary of virginia, is to prove the unconstitutionality of the law of which it will effect the repeal. and no argument has been, or, in my poor opinion, can be, adduced, to prove the unconstitutionality of the one, which will not equally apply to the other. no, sir, gentlemen are precluded by their own act from assuming the ground of the judges of virginia; they are obliged to concede that we have the power, because they have already exercised it, of modifying the courts, and here they concede the question. they tell you that this, however, must, to be constitutional, be a "bona fide" modification. it becomes them to prove, then, that this is a _mala fide_ modification. gentlemen have not, they cannot meet the distinction between removing the judges from office for the purpose of putting in another person, and abolishing an office because it is useless or oppressive. suppose the collectors of your taxes held their offices by the tenure of good behavior, would the abolition of your taxes have been an infraction of that tenure? or would you be bound to retain them, lest it should infringe a private right? if the repeal of the taxes would be an infringement of that tenure, and therefore unconstitutional, could you ring all the changes upon the several duties on stamps, carriages, stills, &c., and, because you had retained the man and any one of these offices without diminishing his emoluments, abolish the others? would not this be to impair the tenure of the office which was abolished, or to which another officer might have been appointed by a new regulation? have not the judges, in the same manner, been deprived of one of their offices? and is not the tenure as completely impaired thereby, as if the other had been taken away also? although it will be granted that the _tenant_ is not so much affected, since, with one office, he has the salary formerly attached to both. i agree that the constitution is a limited grant of power, and that none of its general phrases are to be construed into an extension of that grant. i am free to declare, that if the intent of this bill is to get rid of the judges, it is a perversion of your power to a base purpose; it is an unconstitutional act. if, on the contrary, it aims not at the displacing of one set of men, from whom you differ in political opinion, with a view to introduce others, but at the general good by abolishing useless offices, it is a constitutional act. the _quo animo_ determines the nature of this act, as it determines the innocence or guilt of other acts. but we are told that this is to declare the judiciary, which the constitution has attempted to fortify against the other branches of government, dependent on the will of the legislature, whose discretion alone is to limit their encroachments. whilst i contend that the legislature possess this discretion, i am sensible of the delicacy with which it is to be used. it is like the power of impeachment, or of declaring war, to be exercised under high responsibility. but the power is denied since its exercise will enable flagitious men to overturn the judiciary, in order to put their creatures into office, and to wreak their vengeance on those who have become obnoxious by their merit. yet the gentleman expressly says, that arguments drawn from a supposition of extreme political depravity, prove nothing; that every government pre-supposes a certain degree of honesty in its rulers, and that to argue from extreme cases is totally inadmissible. yet the whole of this argument is founded on the supposition of a total want of principle in the legislature and executive. in other words, arguments drawn from the hypothesis are irresistible when urged in favor of that gentleman's opinion; when they militate against him, they are totally inapplicable. it is said that the bill on your table cannot constitutionally be passed, because unprincipled men will pervert the power to the basest of purposes; that, hereafter, we may expect a revolution on the bench of justice, on every change of party, and the politics of the litigants, not the merits of the case, are to govern its decisions. the judiciary is declared to be the guardian of the constitution against infraction, and the protection of the citizen, as well against legislative as executive oppression. hence the necessity of an equal independence of both. for it is declared to be an absurdity, that we should possess the power of controlling a department of government which has the right of checking us; since thereby that check may be either impaired or annihilated. this is a new doctrine of check and balance, according to which the constitution has unwisely given to an infant legislature the power of impeaching their guardians, the judges. apply this theory to the reciprocal control of the two branches of the legislature over each other and the executive, and of the executive over them. but, sir, this law cannot be passed, because the character of the bench is to be given to it by the legislature, to the entire prostration of its independence and impartiality. it will be conceded, that measures, such as have been portrayed, will never be taken, unless the sentiment of the ruling party is ready to support them. although gentlemen contend, that the office of judge cannot be abolished, they are not hardy enough to deny that it may be created. where then, sir, is the check, supposing such a state of things as the gentleman has imagined, (and which he has also declared cannot be conceived,) which shall prevent unprincipled men from effecting the same object by increasing the number of judges, so as to overrule, by their creatures, the decisions of the courts? would not public opinion be as ready to sanction the one as the other of these detestable acts? would not the same evil which has excited such apprehension in the minds of gentlemen, be thus effected by means even more injurious than those which they have specified? without any breach of the constitution an unprincipled faction may effect the end which is so much apprehended from the measure now contemplated to be adopted. i might add, that, when the public sentiment becomes thus corrupt, the ties of any constitution will be found too feeble to control the vengeful ambition of a triumphant faction. the rejection of this bill does not secure the point which has furnished matter for so much declamation. its friends are represented as grasping at power not devolved upon them by the constitution, which hereafter is to be made the instrument of destroying every judicial office, for the purpose of reviving them and filling the places with their partisans. i have long been in the habit of attending to the arguments of the gentleman from delaware, and i have generally found, in their converse, a ready touchstone, the test of which they are rarely calculated to withstand. if you are precluded from passing this law, lest depraved men make it a precedent to destroy the independence of your judiciary, do you not concede that a desperate faction, finding themselves about to be dismissed from the confidence of their country, may pervert the power of erecting courts, to provide to an extent for their adherents and themselves? and that however flagrant that abuse of power, it is remediless, and must be submitted to? will not the history of all governments warrant the assertion, that the creation of new and unnecessary offices, as a provision for political partisans, is an evil more to be dreaded than the abolition of useless ones? is not an abuse of power more to be dreaded from those who have lost the public confidence than from those whose interest it will be to cultivate and retain it? and does not the doctrine of our opponents prove that, at every change of administration, the number of your judges are probably to be doubled? does it not involve the absurdity that, in spite of all constitutional prohibitions, congress may exercise the power of creating an indefinite number of placemen, who are to be maintained through life at the expense of the community? but, when these cases are cited, you are gravely told that they suppose a degree of political depravity which puts an end to all argument. here, sir, permit me to state an important difference of opinion between the two sides of this house. we are accused of an ambitious usurpation of power; of a design to destroy a great department of government, because it thwarts our views, and of a lawless thirst of self-aggrandizement which no consideration can restrain. let us not be amused by words. let us attend to facts. they will show who are contending for unlimited, and who for limited power. the opponents of this bill contend that they did possess the power of creating offices to an indefinite amount; which, when created, were beyond the control of the succeeding legislature. they, of course, contend for the existence of such a power in the present legislature, for whose exercise there is no security but their self-respect. in other words, that if the present majority should incur the suspicion of the people, they may, as soon as there is any indication of their having forfeited the public confidence, on the signal of their dismissal from their present station, make ample and irrepealable provision for themselves and their adherents, by the creation of an adequate number of judicial offices. now, sir, this is a power which we reject, though it is insisted that we possess it. we deny that such an authority does exist in us. we assert that we are not clothed with the tremendous power of erecting, in defiance of the whole spirit and express letter of the constitution, a vast judicial aristocracy over the heads of our fellow-citizens, on whose labor it is to prey. who, then, are, in reality, the advocates of a limited authority, and who are the champions of a dangerous and uncontrollable power? in my estimation, the wisest prayer that ever was composed is that which deprecates the being led into temptation. i have no wish to be exposed myself, nor to see my friends exposed, to the dangerous allurements which the adverse doctrine holds out. do gentlemen themselves think that the persons, whom i see around me, ought to be trusted with such powers? figure to yourselves a set of men, whose incapacity or want of principle has brought on them the odium of their country, receiving, in the month of december, the solemn warning, that on the th of march following, they are to be dismissed from the helm of government; establish the doctrine now contended for, and what may we not expect? yes, sir, the doctrine advanced by our opponents is that of usurpation and ambition. it denies the existence of one power by establishing another infinitely more dangerous; and this you are told is to protect, through the organ of an independent judiciary, the vanquished party from the persecution of their antagonists, although it has been shown that, by increasing the number of judges, any tone whatever may be given to the bench. the theory for which gentlemen contend seems to me far-fetched and overstrained. a mighty enginery is set in motion, which to all good purposes is ineffectual, although formidable in the perpetration of mischief. if, however, the people should be of a different opinion, i trust that at the next election they will apply the constitutional corrective. that is the true check; every other check is at variance with the principle, that a free people are capable of self-government. but, sir, if you pass the law, the judges are to put their veto upon it by declaring it unconstitutional. here is a new power, of a dangerous and uncontrollable nature, contended for. the decision of a constitutional question must rest somewhere. shall it be confided to men immediately responsible to the people, or to those who are irresponsible? for the responsibility by impeachment is little less than a name. from whom is a corrupt decision most to be feared? to me it appears that the power which has the right of passing, without appeal, on the validity of your laws, is your sovereign. but an extreme case is put; a bill of attainder is passed; are the judges to support the constitution or the law? shall they obey god or mammon? yet you cannot argue from such cases. but, sir, are we not as deeply interested in the true exposition of the constitution, as the judges can be? with all the deference to their talents, is not congress as capable of forming a correct opinion as they are? are not its members acting under a responsibility to public opinion, which can and will check their aberrations from duty? let a case, not an imaginary one, be stated: congress violates the constitution by fettering the press; the judicial corrective is applied to; far from protecting the liberty of the citizen, or the letter of the constitution, you find them outdoing the legislature in zeal; pressing the common law of england to their service where the sedition law did not apply. suppose your reliance had been altogether on this broken staff, and not on the elective principle? your press might have been enchained till doomsday, your citizens incarcerated for life, and where is your remedy? but if the construction of the constitution is left with us, there are no longer limits to our power, and this would be true if an appeal did not lie through the elections, from us to the nation, to whom alone, and not a few privileged individuals, it belongs to decide, in the last resort, on the constitution. gentlemen tell us that our doctrine will carry the people to the gallows if they suffer themselves to be misled into the belief that the judges are not the expositors of the constitution. their practice has carried the people to infamous punishment, to fine and imprisonment; and had they affixed the penalty of death to their unconstitutional laws, judges would not have been wanting to conduct them to the gibbet. mr. macon.--as no other member at present seems disposed to take the floor, i will ask the attention of the committee for a few minutes. i have attended with the greatest patience and diligence, to the arguments of gentlemen who oppose the bill as unconstitutional; and had they produced a single doubt in my mind on the point of constitutionality, i should most certainly have voted with them against the bill on your table; but i can with truth say, i have not heard any argument which has in the least changed my first conviction, that we have a constitutional right to pass it. i should not, i believe, have spoken on this question, had not my colleagues, who differ with me in opinion, thought proper to bring into view a vote of the legislature of the state, instructing her senators and recommending it to the representatives to use their best endeavors to obtain a repeal of the last judiciary act. on this resolution of the state legislature, they made some extraordinary remarks, which i mean to notice; but first permit me to inform the committee, that it has been the constant practice of the legislature of that state, from the commencement of the general government to the present day, to instruct her senators, and to recommend to her representatives, to pursue such measures on all the great national questions that have occurred, as the legislature judged the interest of the state required, and this proceeding has never been considered improper. i shall endeavor to answer the gentlemen in the order they spoke, beginning with my colleague (mr. henderson,) who was first on the floor. if i understand him rightly, (and if i do not he will correct me, because it is not my desire to misstate a single word,) he said that the legislature of the state might have adopted the resolutions in consequence of the message of the president; but, upon examination of the dates, this will be found to be impossible. the message could not have reached the legislature before the question on the resolutions was taken and decided; and on no important question was that body ever more unanimous; and though my colleague has said the question was there viewed but on one side, and decided in a manner _ex parte_, yet i will be bold to say, if there were any members in that legislature who thought on this subject as he does, he enjoyed the same right there that my colleague does here, to deliver his sentiments. knowing as i do the great talents and integrity of my colleague, and i believe no one on this floor knows them better, i was surprised when he charged others with being under the influence of passion, when his conduct must convince them that he was guided by the very passion which he attributed to others. he quoted the constitution of north carolina, let us examine it, and see whether his argument can be aided by the practice under that instrument. the thirteenth article is in the following words: that "the general assembly shall, by joint ballot of both houses, appoint judges of the supreme court of law and of equity, judges of admiralty, and attorney general, who shall be commissioned by the governor, and hold their offices during good behavior." on this clause he noted the independence of the state judiciary; and they are independent so long as the law creating their office is in force, and no longer; and it is worthy of notice, that in this section, no mention is made of salary, and yet the judges have been considered as independent as the judges of the united states. soon after the adoption of the constitution, the legislature of the states established courts in conformity thereto; first county courts, and then superior, and afterwards, by a legislative act, without electing a single new judge, gave the superior courts the additional jurisdiction of a court of equity, and never a solitary complaint, that this law was unconstitutional; and it must be acknowledged, that if you can make a court of law also a court of equity, by a legislative act, you can by the same power take it away; and what becomes, in this case, of the commission which is to be held during good behavior? it is, according to my construction, to last no longer than the law which created the office remains in force, and this is long enough to make the judges independent. as to the salary of the judges of north carolina, the twenty-first section of the constitution says, "they shall have adequate salaries during their continuance in office," and yet with this clear right in the legislature, to lessen as well as to add to their salaries, the judges, it is agreed, are independent. my colleague well knows, that many attempts have been made to deprive the superior courts of exercising any jurisdiction in cases of equity; and he also knows, that attempts have been made to establish a court of appeals, which should revise the decisions of the superior courts now in being; and by the constitution of the state, any supreme court may, on presentment of a grand jury, try the governor for maladministration, &c., and i believe the present courts are authorized to do this. i have not at this place been able to see the act which gives this authority; but no doubt is entertained of the fact. it is clear, then, that in north carolina, all parties have thought, that "during good behavior," only meant so long as the office existed; because, by establishing a court of appeals, the judges now in being would not be supreme judges, and in all these various attempts, no one ever charged either of them to be unconstitutional. on examination of the constitution of north carolina, it will be found that it makes provision for the appointment of other officers by the legislature, but says nothing about adequate compensation, except in the section last read, and if you take the office away, what is an adequate compensation for doing nothing? another proof might be drawn from the constitution of north carolina, in favor of the opinion i hold, which is taken from the twenty-ninth section, that "no judge of a supreme court shall have a seat in the general assembly," and my colleague knows, that the present judges could not hold a seat there, because they are supreme judges. and he also knows, that no one ever doubted the constitutional right of the legislature to establish the courts before mentioned; and it seems to me this, on his construction, would be a violation of the constitution, because, having once made a supreme court, it must always remain so, to secure, what he calls, the independence of the judges. sir, i was astonished when my colleague said, that the judges should hold their offices, whether useful or not, and that their independence was necessary, as he emphatically said, to protect the people against their worst enemies, themselves; their usefulness is the only true test of their necessity, and if there is no use for them, they ought not to be continued. i will here ask my colleague whether, since the year , he has heard of any disorder in the state we represent, or whether any act has been done there which can warrant or justify such an opinion, that "it is necessary to have judges to protect the people from their worst enemies, themselves." i had thought we, the people, formed this government, and might be trusted with it. my colleague never could have uttered this sentence, had he not been governed by that passion which he supposes governs others. it is true that we are not a rich and wealthy state, but it is equally true, that there is no state in the union more attached to order and law; and my colleague himself would not say that it was necessary to have judges for this purpose in the country we represent; the people there behave decently without having federal judges, or standing armies, to protect them against themselves. is it not strange, that the people should have sense enough to pay their taxes without being driven to it by superior force, and not have sense enough to take care of themselves without this new judiciary? they certainly contrived to do this before the act establishing this judiciary passed. another expression of his equally astonished me; he said, that on the th day of december, a spirit which had spread discord and destruction in other countries, made its entry into this house. what! are we to be told, because at the last election the people thought proper to change some of their representatives, and to put out some of those who had heretofore been in power, and to put others in power of different opinions, that a destroying spirit entered into all the public functionaries? for what, sir, are elections held, if it be not that the people should change their representatives when they do not like them? and are we to be told from the house-tops, that the only use of elections is to promote, not public good, but public mischief? we are also told, that this constitution was to be destroyed by the all-devouring energies of its enemies. who are its enemies? we are not, nor do i think there are any in this house; but there are parties as well in this house as out of doors, and no man wishes more sincerely than i do, that they were amalgamated, that we might get rid of all party gall, and free ourselves from improper reflections hereafter. but by what energy is the constitution to be destroyed? the only energy heretofore used, and which made the change so much complained of, was the energy of election. sir, i scarcely know what to say when i hear such uncommon sentiments uttered from a head so correct and a heart so pure; it is the effect of a passion of which he is unconscious. again he says, if you repeal this law, the rich will oppress the poor. nothing but too much law can any where put it in the power of the rich to oppress the poor. suppose you had no law at all, could the rich oppress the poor? could they get six, eight or ten per cent. for money from the poor without law? if you destroy all law and government, can the few oppress the many, or will the many oppress the few? but the passing the bill will neither put it in the power of the rich to oppress the poor, nor the poor to oppress the rich. there will then be law enough in the country to prevent the one from oppressing the other. but while the elective principle remains free, no great danger of lasting oppression can be really apprehended; as long as this continues, the people will know who to trust. we have heard much about the judges, and the necessity of their independence. i will state one fact, to show that they have power as well as independence. soon after the establishment of the federal courts, they issued a writ--not being a professional man i shall not undertake to give its name--to the supreme court of north carolina, directing a case then depending in the state court to be brought into the federal court. the state judges refused to obey the summons, and laid the whole proceedings before the legislature, who approved their conduct, and, as well as i remember, unanimously; and this in that day was not called disorganizing. as so much has been said about the resolutions of north carolina, i will repeat again, that it is no uncommon thing for the legislature to express their opinion on great national subjects, and will ask my colleagues whether they ever heard any complaint of the resolutions about the western land? and whether none of them in the legislature never voted for the resolutions about the western land, nor about post-offices and post-roads? the legislature surely had as much right to give an opinion as the chamber of commerce of new york; but, put it upon what footing you please, it is entitled to respect, as the uninfluenced opinion of so many respectable individuals; and the legislature never intended nor wished that the recommendation to the representatives should be binding on them at all events; and if i believed the bill to be unconstitutional, i should not vote for it, but as i do not, i hope the gentleman will pardon me for pursuing my own sentiments, and voting for it. i hope no man will ascribe to me a disposition to produce anarchy in my native country. although poor myself, i feel as strong a desire as any one on this floor for the preservation of good order and good government. it has been asked, by the gentleman from delaware, (mr. bayard,) will the gentleman from virginia (mr. giles) say, the assuming the state debts was improper? i have no hesitation to say that it was done at an improper time; and, in showing that it was, i hope i shall be pardoned for travelling over topics that really have nothing to do with the merits of the present question. that act is now done, and, by what i say, it is not to be understood that i wish congress should put their hands upon it. it will be noticed that congress are authorized to establish post-offices and post-roads for the general and equal dissemination of information throughout the united states; and is it not known that no act was passed on that subject before the assumption of the state debts, and that there was only one post-road which run near the sea-coast? of course, the people in the interior country had no communication with those in the government, nor had they any knowledge of what was doing. but the rich speculator, who was on the spot, by going into the country where the people were ignorant of what had been done, purchased up their certificates--the only reward they had received for their toil and wounds--at about one-tenth of their value. and it is possible that many of these purchases may have been made with public money. and it is clear to me, that if a proper number of post-roads had been established, before the act was passed for assuming the state debts, the war-worn soldier would not have lost half as much as he did by the speculation on his certificates. the gentleman from delaware says we drove them to the direct tax. this is the first time i ever heard of a minority driving a majority. is such a thing possible? did we drive them to the measures that made such immense expenditures of the public money necessary? no, sir, we opposed those measures as useless; and the true ground of the direct tax is this: the public money was expended; public credit was stretched, until, to preserve it, it became necessary to provide for paying, and the means adopted were the direct tax. the same gentleman tells us there is nothing sacred in the eyes of infidels. we know our opponents. the allusion here is too plain not to be understood; and evidently is, that those who differ with him in opinion are infidels. this is a strong expression; it would have seemed that his love of americans ought to have prevented the use of it. i shall make no answer to it, except to remind him that in a book, the truth of which he will not deny, he will find these words, "_judge not, lest ye be judged_." he also said that gentlemen might look to the executive for victims, and not to the judges. notwithstanding this remark, and without condemning or approving the appointments made by the late president, i hope i may be permitted to express my own ideas, without being considered as under the influence of the present president. prior to the fourth of last march, all, or nearly all, the offices in the gift of the executive, were in the hands of men of one political opinion. on that day, the people changed the president, because they did not like measures that had been pursued. but, to those who have attended to the debates in this house, it must appear strange, indeed, to hear gentlemen complain of the president having in office those who agree with him in opinion, when we were formerly told that the president would do wrong if he appointed to office those who differed from him in political opinion; and whenever he had done it, he had had cause to repent of it. was that opinion then correct, and now false, in the estimation of gentlemen? for my part, i did not think the opinion correct when i first heard it, nor have i since been convinced of its propriety. indeed, before i can think so, i must have a worse opinion of human nature than i now have, and think of men as they pretend to think of us, which god forbid! but, taking things as they are, what course, on this point, is most fair and tolerant? the community, as well as this house, is divided into two parties. it seems to me, that all the most tolerant could wish, would be an equal division of the offices between the parties, and thus you might fix a reciprocal check on each other. but i ask gentlemen to be candid, and tell me whether they are at this time equally divided? sir, they know that there are many more persons who now fill offices who agree with them in opinion than agree with us. as to myself, i care not who fill offices, provided they act honestly and faithfully in them. i can with truth say, so little party attachment have i on this head, that i never solicited to have any man discharged from office. knowing that a large majority of those now in office agree with those gentlemen in political opinion, i am at a loss for the cause of all this clamor. they have no doubt some reason for it, which has not been declared. the fact is, they have a majority of the offices, and a majority of the people are with us. i am contented it should be so. the gentleman has dwelt much on a subject which, from my habits of life, i am not enabled fully to notice; i must decide for myself, and, judging with the small share of information i possess, i cannot agree with him. i do not pretend to understand the subject as well as he does, but certainly he was not so perspicuous as it might have been expected. i mean, sir, his opinion on the common law. he told us that the judges only adopted such parts of the common law of england as suited the people, and that he apprehended no danger from this. sir, i do apprehend danger from this, because i cannot find any authority given them in the constitution to do it, and i suppose it is not an inherent right. without pretending to know the extent of this common law, it has always appeared to me to be extremely dangerous to the rights of the people, for any person not elected by them, to undertake to exercise the power of legislating for them, and this adopting the common law is only another name for legislation. he has also told us, that the states had adopted it. if the states adopted it, it became a law of the state, and not of the united states; but the adoption of it by the individual states, could not give the judges a right to adopt it for the united states. the judges have no powers but what are given by the constitution or by statute, and this power cannot be found in either. he even told us, that the constitution was a dead letter without it. i do not believe this was the opinion of the convention that formed it, and by an examination of the debates of the state conventions that ratified it, it will not be found to be their opinion; nor is it, i believe, the opinion of all the judges of the supreme court, that the constitution would be a dead letter without the common law of england. i have understood, that one of them has given it as his opinion, that the common law was not in force in the united states. the gentleman told us, that the sedition law was constitutional, and that the judges had so determined. this we have often been told before; but, in my opinion, the contrary is the fact. i firmly believe there is no authority given in the constitution to pass that law, and although the judges agree with him in opinion, i believe the people agree with me. he, like my colleague, did not pretend to say that the judges under the old system had too much business, but too much riding. the whole burden of the song seems to be riding and salary, salary and riding; you may destroy the office, but the officer must have his salary, and this i suppose without riding. the old system was, in my opinion, equal to every object of justice contemplated by its establishment. the gentleman has ascribed to us the wish to have the courts viciously formed. is it possible, that he can have so degrading an idea of the american people, as to suppose they would send men here to legislate on their dearest interests, so base and corrupt, as to wish their courts so formed, that vice and not virtue should prevail in them? i am happy to say that gentleman is the only one who has uttered a sentiment so abhorrent to human nature. he also said, if you permit the state courts to execute your laws, you would have no constitution in ten years. i have not heard any one express a desire that you should have no courts, or that the state courts should execute all your laws; but i do not believe, that if the state courts were to execute your laws, that they would destroy the constitution which they are sworn to support. he has told us that we paid millions for an army which might be useless, and refused thousands to a judiciary which was useful. as to the army, those who agree with me in sentiment, are as clear of it as it is possible for men to be of any political sin whatever; we always considered them useless, except in a small degree, and voted against them. but, says he, this is the president's measure; he may prevent it. this is indeed a bold assertion. are a majority of this house so degraded, so mean, so destitute of honor or morality, as to act at the nod of a president? what the majority may hereafter do, i cannot tell; but i can say, as yet they have done nothing which even the eye of criticism can find fault with. but are we to infer from these charges, that it has heretofore been the practice for the president to give the tone to the majority of the house, and to wield them about as he pleased? i had, before, a better opinion of our adversaries. i had thought, and still think, that no man can wield a majority of this house; that the house is, and has been, too independent for this; to think otherwise, would be degrading to my country. sir, i do not believe the gentleman from delaware himself, with all his talents, can wield those with whom he generally votes, at his will and pleasure. much has been said about the manner in which the late law was passed, and the purpose for which it was done. i hope i shall be pardoned for saying nothing on this subject; enough, if not too much has already been said on it; nor can i conceive that it has any thing to do with the question. the true question is, were there courts enough under the old system, to do the business of the nation? in my opinion there were. we had no complaints that suits multiplied, or that business was generally delayed; and when gentlemen talk about federal courts to do the business of the people, they seem to forget that there are state courts, and that the state courts have done, and will continue to do almost the whole business of the people in every part of the union; that but very few suits can be brought into the federal courts, compared with those that may be brought into the state courts. they will be convinced that under the old system, we had federal judges and courts enough; besides, sir, i believe each state knows best what courts they need, and if they have not enough, they have the power and can easily make more. i am sure the old system answered every purpose for the state i live in as well as the new. he also told us, that we attempt to do indirectly what we cannot do directly. i do not know of any such attempt. the bill is certainly a direct attempt to repeal the act of the last session; but i have seen things done indirectly which i believe could not have been done directly; such was the army of volunteers; it surely was an indirect attempt to officer and get possession of the militia. the same gentleman challenges us to say there are any in the united states who prefer monarchy. in answer to this, i say, there were such during the american revolutionary war, and i have not heard that they had changed their opinion; but as he has told us there were jacobins in the country, it is not unfair to suppose there are monarchists; they being the two extremes. we are also charged with a design to destroy the whole judiciary. if there is such a design, this is the first time i ever heard it; no attempt of the kind is yet made. but what is the fact? we only propose to repeal the act of the last session, and restore the judiciary exactly to what it was for twelve years, and this is called destroying the judiciary. to complete the scene, we were told of the sword, of civil discord, and of the sword of brother drawn against brother. why such declamation? why do we hear of such things on this floor? it is for them to tell who use the expressions; to me they are too horrid to think of. do gentlemen appeal to our fears, rather than to our understanding? are we never to be clear of these alarms? they have often been tried without producing any effect. every instrument of death is dragged into this question; sword, bayonet, hatchet, and tomahawk; and then we are told that the passing this bill may be attended with fatal consequences to the women and children. can it be possible, sir, that the gentleman was really serious when he talked about an injury to women and children? he also told us, if you pass the bill and it should produce a civil war, not only himself but many enlightened citizens would support the judges. and have we already come to this, that enlightened citizens have determined on their side in case of a civil war, and that it is talked of in this assembly with deliberation and coolness? we certainly were not sent here to talk on such topics, but to take care of the affairs of the nation, and prevent such evils. in fact, it is our duty to take care of the nation, and not destroy it. compare this with the conduct of the former minority. i challenge them to show any thing like it in all their proceedings. whenever we supposed the constitution violated, did we talk of civil war? no, sir; we depended on elections as the main corner-stone of our safety; and supposed, whatever injury the state machine might receive from a violation of the constitution, that at the next election the people would elect those that would repair the injury, and set it right again; and this, in my opinion, ought to be the doctrine of us all; and when we differ about constitutional points, and the question shall be decided against us, we ought to consider it a temporary evil, remembering that the people possess the means of rectifying any error that may be committed by us. is the idea of a separation of these states so light and trifling an affair, as to be uttered with calmness in this deliberate assembly? at the very idea i shudder, and it seems to me that every man ought to look on such a scene with horror, and shrink from it with dismay. yet some gentlemen appear to be prepared for such an event, and have determined on their sides in case it should happen. for my part, sir, i deplore such an event too much to make up my mind on it until it shall really happen, and then it must be done with great hesitation indeed. to my imagination, the idea of disunion conveys the most painful sensations; how much more painful then would be the reality! who shall fix the boundaries of these new empires, when the fatal separation shall take place? is it to be done with those cruel engines of death that we have heard, of, the sword, the bayonet, and the more savage instruments of tomahawk and hatchet? and is the arm of the brother to plunge them into the breast of brother, and citizen to be put in battle array against citizen, to make this separation which would ruin the whole country? and why is all this to be done? because we cannot all think alike on political topics. as well might it be said, because we cannot all agree in the tenets embraced by each particular sect of our holy religion, because one is a calvinist and another a lutheran, that each should be employed in plunging the dagger into the heart of the other. but suppose, sir, you agree to divide these states, where is the boundary to be? is it to be a river, or a line of marked trees? be it which it may, both sides must be fortified, to keep the one from intruding on the other; both the new governments will have regular soldiers to guard their fortified places, and the people on both sides must be oppressed with taxes to support these fortifications and soldiers. what would become, in such a state of things, of the national debt, and all the banks in the united states? if we do wrong by adopting measures which the public good does not require, the injury cannot be very lasting; because at the next election the people will let us stay at home, and send others who will manage their common concerns more to their satisfaction. and if we feel power and forget right, it is proper that they should withdraw their confidence from us; but let us have no civil war; instead of the arguments of bayonets, &c., let us rely on such as are drawn from truth and reason. another topic has been introduced, which i very much regret; it is the naming of persons who have received appointments from the late or the present president. i hope i shall be pardoned for not following this example. and one gentleman is named as having been an important member during the election of president by the late house of representatives. it ought to be remembered there were others as important as the gentleman named. in talking about the late or the present president, it ought not to be forgotten that they both signed the declaration of independence, that they have both been ministers in europe, and both presidents of the united states. although they may differ in political opinion, as many of us do, is that any reason we should attempt to destroy their reputation? is american character worth nothing, that we should thus, in my judgment, improperly, attempt to destroy it on this floor? the people of this country will remember that british gold could not corrupt nor british power dismay these men. i have differed in opinion with the former president, but no man ever heard me say, that he was either corrupt or dishonest; and sooner than attempt to destroy the fame of those worthies, to whose talents and exertions we owe our independence, i would cease to be an american; nor will i undertake to say that all who differ from me in opinion are disorganizers and jacobins. thursday, february . _judiciary system._ the house then went into a committee on the bill, sent from the senate, entitled, "an act to repeal certain acts respecting the organization of the courts of the united states, and for other purposes." mr. rutledge.--i beg leave, mr. chairman, to proffer my thanks to the committee for the indulgence with which they favored me yesterday, and at the same time to acknowledge the respect excited by the politeness of the honorable gentleman from maryland, who moved for its rising. in the course of the observations i yesterday offered, i endeavored to show that it was the intention of the convention to make our judges independent of both executive and legislative power; that this was the acknowledged understanding of all the political writers of that time; the belief of the state conventions, and of the first congress, when they organized our judicial system. if i have been successful in my attempt to establish this position, and if (what i suppose cannot be denied) it be true in jurisprudence, that whenever power is given specially to any branch of government, and the tenure by which it is to be exercised be specially defined, that no other, by virtue of general powers, can rightfully intrude into the trust; then i presume it must follow of consequence, that the present intermeddling of congress with the judicial department is a downright usurpation, and that its effect will be the concentration of all power in one body, which is the true definition of despotism. as, sir, every thing depends upon the fair construction which this article in the constitution respecting the judiciary is susceptible of, i must again read it. [here mr. r. read several clauses of the constitution.] some of the clauses we see are directory and others prohibitory. now, sir, i beg to be informed of what avail are your prohibitory clauses, if there be no power to check congress and the president from doing what the constitution has prohibited them from doing? those prohibitory regulations were designed for the safety of the state governments, and the liberties of the people. but establish what is this day the ministerial doctrine, and your prohibitory clauses are no longer barriers against the ambition or the will of the national government; it becomes supreme and is without control. in looking over those prohibitory clauses, as the representative of south carolina, my eye turns with no inconsiderable degree of jealousy and anxiety to the ninth section of the first article, which declares--[here mr. r. read the article respecting migration before the year .] i know this clause was meant to refer to the importation of africans only, but there are gentlemen who insist that it has a general reference, and was designed to prohibit our inhibiting migration as well from europe as any where else. it is in the recollection of many gentlemen who now hear me, that, in discussing the alien bill, this clause in the constitution was shown to us, and we were told it was a bar to the measure. and an honorable gentleman from georgia, then a member of this house, and now a senator of the united states, (and who had been a member of the convention,) told us very gravely he never considered this prohibition as relating to the importation of slaves. i call upon gentlemen from the southern states to look well to this business. if they persevere in frittering away the honest meaning of the constitution by their forced implications, this clause is not worth a rush--is a mere dead letter; and yet, without having it in the constitution, i know the members from south carolina would never have signed this instrument, nor would the convention of that state have adopted it. my friend from delaware, standing on this vantage ground, says to our opponents, here i throw the gauntlet, and demand of you how you will extricate yourselves from the dilemma in which you will be placed, should congress pass any such acts as are prohibited by the constitution? the judges are sworn to obey the constitution, which limits the powers of congress, and says they shall not pass a bill of attainder or _ex post facto_ law, they shall not tax articles exported from any state, and has other prohibitory regulations. well, sir, suppose congress should pass an _ex post facto_ law, or legislate upon any other subject which is prohibited to them, where are the people of this country to seek redress? who are to decide between the constitution and the acts of congress? who are to pronounce on the laws? who will declare whether they be unconstitutional? gentlemen have not answered this pertinent inquiry. sir, they cannot answer it satisfactorily to the people of this country. it is a source of much gratification to me to know that my sentiments on this subject, as they relate to the constitutionality of it, are in unison with the wisest and best men in my native state. the judicial system had proved so inconvenient there, as to render a new organization of it necessary some years past. there were gentlemen in the legislature as anxious to send from the bench some of the judges as gentlemen here are to dismiss our federal judges. personal animosities existed there as well as here, though not to so great an extent; but it was the opinion of a large majority of the south carolina legislature, that as the constitution declares, "the judges shall hold their offices during good behavior," the office could not be taken from them, the measure was abandoned, and the wise and cautious course pursued, which we wish gentlemen here to follow: the system was not abolished, but modified and extended; the judges had new duties assigned to them, and their number was increased, but no judge was deprived of his office. in south carolina they have a court of chancery, consisting of three chancellors, and the law establishing it requires the presence of two judges to hold a court. during a recess of the legislature, one of the chancellors resigned and another died. the functions of the court of consequence became suspended. all the business pending in it was put to sleep. the public prints were immediately filled with projects for destroying the court, which had been denounced as unnecessary. as the citizens of the western part of the state had not participated much in the benefits derived from the court of chancery, many of the most influential of them deemed it of little utility. the opposition assumed so formidable an aspect as to determine the governor (who exercises the power of appointing judges during the recess of the legislature) not to make any appointment, believing the court would be abolished. when the legislature met, an effort was made to abolish the court, but a large majority giving to the constitution the honest meaning of its framers, considered the judges as having a life estate in their offices, provided they behaved well; and the vacancies on the chancery bench were immediately supplied. that the national judiciary establishment is comparatively more costly than are the state judiciaries, is far from being the case, i believe. it may be so in virginia, where they have one chancellor, with little salary and much business, but it is not so in other states. in south carolina, we have six judges at common law, at six hundred pounds sterling a year each; three chancellors at five hundred pounds each; which, together with the salaries and fees of office of the attorney general, master in chancery, solicitors, clerks, and sheriffs, amount to six thousand two hundred pounds sterling. and yet, sir, justice, i believe, is nowhere cheaper than in south carolina. by the judicious structure of her judiciary system, the streams of justice are diffused over the whole state, and every man is completely protected in his life, liberty, property, and reputation. the courts are almost constantly in session. the judges are gentlemen of high talents, integrity, and strict impartiality; and every one who goes into the court of that state, not only obtains ample justice, but obtains it promptly; this, sir, is what i call cheap justice. the gentleman from virginia has seen fit to notice the law which laid a direct tax, and said it was imposed when we knew the administration of this government was soon to pass from those then in power, and was resorted to as a means of extending executive patronage, and to make provision for the friends of an expiring administration. can the honorable gentleman be serious in all this? does he remember when we passed this law? it was in , when i will be bold to say, the administration enjoyed the highest degree of popular favor. in no popular government, perhaps, was an administration more popular than was the former administration, at the time this tax was laid. sir, this law had no connection with personal or party considerations. like all the measures of the past administration, it was designed to promote the public good. had we, like our opponents, consulted the caprices and prejudices, and not the real interests of our constituents; had we been merely attentive to popular favor, we should not have passed this law. at the crisis it was passed, the public good demanded it, and we were regardless of every other consideration. a nation that had lighted up the flame of war in every corner of europe, that was prostrating the liberties of every free people, and subverting the government of every country, saw fit to menace us; told us for the preservation of our peace and independence we must pay tribute. this degrading measure was scornfully rejected by our administration; they said, if we must fall, we will fall after a struggle; and our citizens prepared themselves for war with alacrity, and regarded every sacrifice as inconsiderable, compared with the great sacrifice of our independence. with this prospect of immediate war, we should have acted not only unwisely but treacherously, had we trusted for public income to the revenue derived from trade. had our trade been destroyed, there would have been a complete destitution of revenue, and to place the means of national defence as far beyond the reach of contingency as possible we imposed the direct tax. we knew this law would prove arms and ammunition to those who were inventing all the falsehood credulity could swallow, and who were busily employed in misrepresenting and calumniating the conduct of the government. we did suppose they might make this law their artillery to batter down the administration; but we were not deterred from our honest purposes by this expectation; a change of men, when compared with a change of government, weighed with our minds as dust does in the balance; our measures did not aim at popularity, and we were just to our country, regardless of party consequences. at this early period, says the gentleman, it was to have been calculated what would be the result of the presidential election. sir, those must have been gifted with second sight, they must have been prophets indeed, who could have then foretold how the election would issue; the result was as doubtful as any event could be, till within a few days of the election. it is recollected that every thing depended upon the south carolina vote; all the gentlemen in nomination went there with an equal number of votes; the anxiety displayed at the time by the gentlemen here from virginia, proved they then deemed it doubtful how the election would terminate. indeed, sir, nothing could have been more doubtful, and i believe it is fully known to the ministerial side of this house, that it depended upon one of the gentlemen nominated, who had not the carolina votes, to have obtained them, and produced to the election a different result; but his correct mind was obnoxious to any intrigue; it would not descend to any compromise, and this honorable man knew that no station could be honorable to him unless honorably obtained. in the very wide range which the gentleman from virginia has permitted himself to take, he has been pleased to notice the conduct of the late congress when they were occupied in the election of the president of the united states, and he has said we were then "pushing forward to immolate the constitution of our country." what does all this mean, sir? what, sir! because we, of the two gentlemen who had from the electors an equal number of votes, did not prefer him who was from virginia, are we to be charged with an immolation of our constitution? sir, the gentleman from virginia was not a member of the last congress, and lest he should not know the history of the transaction to which he alludes, i will give it. the electors chosen in the different states gave the same number of votes for thomas jefferson and aaron burr; there being a tie, it devolved, by the direction of the constitution, upon the house of representatives to make an election. we sincerely believed that mr. burr was the best and the most fit man to be president, and we accordingly voted for him; we continued to vote for him six and thirty times; we were anxious to have him elected, and we deprecated the election of the other candidate; but when we found gentlemen were determined not to have the candidate from new york, and said they would have him from virginia president, or they would have no president, we, who venerated our constitution too sacredly to do any thing which should hazard the loss of it, yielded. we believed mr. jefferson radically and on principle hostile to the national constitution; we believed some of the most important features in it obnoxious to him; we believed him desirous of destroying the independence of our judiciary; we believed him opposed to the senate as now organized, and we believed him destitute of that degree of energy necessary to maintain the general liberty of the people of the united states. with these impressions deep upon our minds, we should have been traitors to our country had we voted for the gentleman from virginia, as long as there was any prospect left to us of elevating the gentleman from new york; but when we found the object of our preference was so obnoxious to gentlemen on the other side, that they would hazard the having of no president rather than have him, we ceased our opposition.[ ] and this is what the honorable member from virginia has been pleased to call "pushing forward to immolate the constitution." i regret, mr. chairman, being compelled to mention names and say any thing of a personal nature, but i am obliged to do it in pursuing the gentleman from virginia, who in his extraordinary course has not only mentioned the names of gentlemen, but ascribed unworthy motives for their conduct. he has said mr. read and mr. green voted for the law under which they got appointments. although i have abundant proof that neither of these gentlemen solicited their offices, that they were given spontaneously, and without being expected, yet i will merely answer this observation by mentioning what is very generally known to all gentlemen who have been of late in the councils of the nation; it is, that it was the invariable practice of the former executive to appoint gentlemen to office without previously advising with them. it is well known that under the law gentlemen are now endeavoring to repeal, mr. jay was appointed chief justice, and about the same time several gentlemen in this house were appointed to some of the most honorable stations under our government; the executive's intention, it is well known, had not been previously notified to them; it is well known they all declined accepting the places proffered to them. permit me, sir, to give a brief history of the case of mr. green, on which the gentleman from virginia has dwelt so much. the district judge in rhode island was appointed circuit judge, and mr. green was appointed district judge. on the fourth day of march, mr. green took his seat in the senate; the friends of the administration objected to his keeping it; they said he was a judge, as appeared by the journals of the senate; they here made a complete recognition of his appointment as judge, and he vacated his seat. after getting home he received his commission, in which the blanks had been filled up with the words circuit judge, instead of district judge. mr. green enclosed his commission to the executive, in a letter most profoundly respectful, and requested the errors of the clerk in the department of state might be corrected, and his commission made to conform to the appointment, as recorded on the senatorial journal. to this letter, which was in highly respectful terms, the president would not deign to have any answer given; he pocketed mr. green's commission, and placed another gentleman in his office. this is a history of the appointment of mr. green, and the manner in which the president "corrected the procedure." sir, the judiciary is, in the fabric of the constitution, not a corinthian pillar, not any ornament added by congress. it is, sir, the grand doric column; one of three foundation pillars, formed not by congress, but by the people themselves; it binds together the abutment, is laid as the foundation of the late fabric of our government, and if you demolish it, the grand arch itself will totter and the whole be endangered. we are asked by the gentleman from virginia if the people want judges to protect them? yes, sir, in popular governments constitutional checks are necessary for their preservation; the people want to be protected against themselves; no man is so absurd as to suppose the people collectedly will consent to the prostration of their liberties; but if they be not shielded by some constitutional checks they will suffer them to be destroyed; to be destroyed by demagogues, who filch the confidence of the people by pretending to be their friends; demagogues who, at the time they are soothing and cajoling the people, with bland and captivating speeches, are forging chains for them; demagogues who carry daggers in their hearts, and seductive smiles in their hypocritical faces; who are dooming the people to despotism, when they profess to be exclusively the friends of the people. against such designs and artifices were our constitutional checks made to preserve the people of this country. will gentlemen look back to the histories of other countries, and then tell us the people here have nothing to apprehend from themselves? who, sir, proved fatal to the liberties of rome? the courtier of the people; one who professed to be "the man of the people," who had willed his fortune to the people, and had exposed his will to the public eye; a man who, when a crown was proffered to him, shrunk from the offer, and affectedly said, it did not come from the people. it was julius cæsar who prostrated the liberties of rome; and yet cæsar professed to be the friend of rome, to be in fact the people. who was it, that, in england, destroyed the representative government, and concentrated all its powers in his own hands? one who styled himself the man of the people; who was plain, nay studiously negligent in his dress; disdaining to call himself mister, it was plain unassuming oliver; oliver cromwell, the friend of the people, the protector of the commonwealth. the gentleman from virginia says he would rather live under a despot than a government where the judges are as independent as we would wish them to be. had i his propensities, i, like him, would fold my arms and look with indifference at this attack upon the constitution. it has been my fortune, mr. chairman, to have visited countries governed by despots. warned by the suffering of the people i have seen there, i am zealous to avoid any thing which may establish a despotism here. it is because i am a republican in principle and by birth, and because i love a republican form of government and none other, that i wish to keep our constitution unchanged. independent judges, at the same time that they are useful to the people, are harmless to them. the judges cannot impose taxes; they cannot raise armies; they cannot equip fleets; they cannot enter into foreign alliances: these are powers which are exercised without control by despots; and as the gentleman from virginia does not hold despots in abhorrence, he and i can never agree in our opinions on government. whether another honorable gentleman from virginia (mr. randolph) has derived all the service from his sling and his stone he had expected, or whether he feels acquitted of his promise, and now thinks himself capable of prostrating the goliath of this house, armed cap-à-pie with the constitution of his country, i cannot conjecture. whether he has discovered the skill and the prowess of david, or whether he is likened to him only by the weapons he wars with, it is for the committee to judge; for myself i must say, that his high promises had excited expectations which in me have not been realized, and when the gentleman sat down i was sorry to find my objections to the bill on your table undiminished. i say sorry, for i can lay my hand upon my heart, and in the fulness of sincerity declare, there is nothing i desire more anxiously than to be convinced by gentlemen that this measure is not unconstitutional. the gentleman has asked whether, if we had created an army of judges, and given them monstrous high salaries, it would not be right to repeal the law; that if the power exists to repeal any law which might have passed on this subject, it might not now be used? and has been pleased to say, we would have created more judges and given them higher salaries, if we had not wanted nerves; and tells my honorable and learned friend from delaware that we were restrained by the same feebleness of nerve which induced us at the presidential election to put blank votes into the ballot box. sir, my friend from delaware does want that sort of nerve that some gentlemen now discover. although he is as brave as he is wise, yet in living without fear he will live without reproach, and never make himself liable to the charge of prostrating the constitution of his country; for such a work it is true he has no nerve. the observations of one honorable gentleman from virginia (mr. giles) being now reiterated by another respecting the course of conduct we pursued at the presidential election, shows that time has not abated the resentment of virginia which we excited by our not voting for the virginia candidate. permit me here to declare, sir, that in reviewing all my public conduct, i can discover no one act of which i am more satisfied than my having put a blank vote into the ballot-box. much has been said on this subject. my friend from delaware and myself have been denounced by the jacobins of the country; at their civic feasts, and in their drunken frolics, we have been noticed. european renegadoes, who have left their ears on the whipping posts of their respective countries, or who have come to this country to save their ears, have endeavored to hang out terrors to us in the public prints; nay, sir, circular letters have been diffused through the country, charging us with the intention of preventing at one time the election of a president, and at another with the design of defeating the vote of the electors and making a president by law. this was all a calumny, and as it relates to the south carolina delegation, i declare they had no intention of defeating the public will; they never heard of any project for making a president by law; they had but one object in view which they pursued steadily as long as there was any prospect of attaining it. the gentleman from virginia and the gentleman from new york had an equal number of votes; we preferred the latter; we voted for him more than thirty times, but when we found our opponents would not unite with us, and seemed obstinately determined to hazard the loss of the constitution rather than join us, we ceased to vote; we told them we cannot vote with you, but by ceasing to vote, by using blank votes, we will give effect to your votes; we will not choose, but we will suffer you to choose. surely, mr. chairman, there was nothing in all this which had any aspect towards defeating the public will. why i did not prefer the gentleman who ultimately was preferred, has already been mentioned. this is a subject on which i did not expect to be called upon to explain; but the gentlemen from virginia have called, and it was necessary to answer. permit me to state, also, that besides the objections common to my friend from delaware and myself, there was a strong one which i felt with peculiar force. it resulted from a firm belief that the gentleman in question held opinions respecting a certain description of property in my state, which, should they obtain generally, would endanger it, and indeed lessen the value of every other.[ ] following the example set by his colleague, the gentleman from virginia has bestowed much censure on the past administration, and made it a serious charge against them, having appointed under this law a gentleman of maryland, who he says was not with us formerly, but unfurled his standard in the service of his king, and fought against his countrymen, whom he then deemed rebels. i did not expect, mr. chairman, to hear this observation from one of the friends of the executive. since the fourth of march last, i thought philosophy had thrown her mantle over all that had passed; that sins were to be forgotten and forgiven, and to prove the sincerity of this forgiving spirit, sinners were to be distinguished by executive favors. one would have thought so in reviewing executive conduct; where persons had been imprisoned and fined under our laws, they we know were released; where fines had actually been paid, the officers of government had been ordered to return them, and not only tories had been appointed to office, but old tories, rank old tories, who had been banished. the present collector of philadelphia, for the internal revenue, has been appointed since the fourth of march last, and although he never, like the gentleman alluded to, shivered lances in the service of his king, yet he was actively employed in the more safe service of giving information to the british generals, and marching before sir william howe, decorated with laurels, conducted him into the metropolis of his native state. sir, there are many instances of this kind. have gentlemen forgotten the young englishman who was so busily employed here last winter during the presidential election, that in seeing him one would really have supposed him not only a member of this house, but, like him of tennessee, holding an entire vote at his command? this youngster was sent out here by some merchants in england to collect debts due to them in this country, and his father, whose tory principles carried him from america early in the revolution, is now subsisting on a royal pension; and this young man has been appointed our consul at london, and the former consul, a native and stanch american, whose conduct had been approved by merchants generally, has been turned out to create a vacancy. the gentleman from virginia has repeated the observation of his colleague, that the people are capable of taking care of their own rights, and do not want a corps of judges to protect them. human nature is the same every where, and man is precisely the same sort of being in the new world that he is in the old. the citizens of other republics were as wise and valiant and far more powerful than we are. the gentleman from virginia knows full well, that wherever the roman standard was unfurled, its motto, "_senatus populusque romani_," proclaimed to a conquered world that they were governed by the senate and the people of rome. but now, sir, the roman lazzaroni, who crouching at the gates of his prince's palaces, begs the offals of his kitchen, would never know that his ancestors had been free, nor that the people had counted for any thing in rome, or that rome ever had her senate; did he not read it on the broken friezes and broken columns of the ruined temples, whose fragments now lie scattered over the roman forum! tuesday, march . mr. dana.--after this vindication of meritorious men who have been removed from office, i will now attend more particularly to some observations of the gentleman from virginia. he has spoken of the judicial act of the th of february, , as if the passage of it had been attended with improper circumstances, and thence has attempted to deduce the inference that it ought to be repealed. he read part of the journal of the last session, and charged certain members of the house with having been engaged in opposing the public will at the time when the act was approved. the journal shows, that on the th of february, eighteen hundred and one, the representatives, voting by states, proceeded to the twenty-ninth ballot for president, and the result was the same as had taken place before; the votes of eight states given for thomas jefferson; the votes of six states for aaron burr; and the votes of two states divided. much has been said on this topic, which has at length been brought forward as a public charge by the gentleman from virginia. it is now time that it should be examined. according to the principles of our government, the public will, when explicitly ascertained by an authentic act, is the law of the land, and must be obeyed. of this there can be no doubt; it is beyond all question. but this public will is not merely the will of part of the community, a section of the people; it is the will of the great body of american citizens. the highest and most solemn expression of the public will in this country is the constitution of the united states. this was agreed to by the general convention; was transmitted to the legislatures of the several states by the unanimous resolution of congress under the confederation; was recommended by all those legislatures, when they passed laws for submitting it to conventions for their ratification, and was finally ratified by the conventions of all the states in the union. it was thus established by the general consent. in this we should acknowledge the high authority of the public will. there is, however, a misfortune which attends the argumentation of some gentlemen. they substitute a part for the whole; and would confound the will of a certain portion of the people, however vaguely expressed, with the will of the whole public body as explicitly manifested by an authentic act. what manifestation was there of the public will relative to the late election of a president of the united states? the only authentic evidence of the public will on this subject proved, that thomas jefferson, of virginia, and aaron burr, of new york, were equally the objects of approbation. the majority of the electors had given them an equal number of votes. what then was the difference of right between them? was it, that one of the candidates was a virginian? was it that the members of congress were assembled on the banks of the potomac, with virginia in view on the other side? must it be acknowledged as the prerogative of that state to impose a chief magistrate on the union? or was there a difference of right, because virginia, with its extent and population, could make more clamor than any other state? the noise of so great a state may sometimes seem loud enough for the voice of the people of the united states. and are they, therefore, in this house to be confounded with each other? if so, the observations about the public will, of which we have lately heard so much from a certain quarter, must be understood to mean the will of virginia; and we may thus judge of the argumentation when gentlemen from that state are speaking of the respect due to the public will. two persons were presented, in constitutional form, to the house of representatives, as being equally candidates for the office of president: one from virginia and the other from new york. when they were so presented, the choice between the two candidates was devolved on the representatives, by the constitution of the united states. after maturely considering the question, it was for them, as ultimate electors, to vote as they judged to be most for the public welfare. they voted by states, as required by the constitution. and are gentlemen to be here accused for exercising the constitutional right of election according to the conviction of their own judgments? when called upon, under the constitution, to elect one of the two candidates, were they not bound, by the nature of their duty, to give their votes according as the one or the other was by them judged to be more or less preferable? upon what principle can gentlemen be accused of hostility to the interest of the people, because they did not think proper to elect the candidate from virginia? are our affairs already reduced to such a situation that it is to be charged as a public offence, if any member of this house has failed to vote for a virginian to be the president of the united states? it was the constitutional right of members of this house, in deciding between the two candidates, to give their ballots for the one whom they believed to be superior in practical capacity for administering the government--one whom they believed to be not hostile to the commercial interests of the country, and not disposed to subject the union to the domination of a particular state, whatever might be its lordly pretensions in consequence of extent of territory or antiquity of dominion. as the gentleman from virginia has thought proper to speak of events which took place about the time of passing the act in question, allow me, sir, to mention one circumstance, of which he has said nothing. the act, as finally enrolled, was signed by the speaker of the house of representatives after the balloting for a president had commenced; and the clerk carried it to the other house for the signature of their president. the candidate from virginia was then in the chair of the senate. the clerk of this house, on first presenting himself, as was customary, at the door of the senate chamber, was not admitted. the situation came to the knowledge of a senator, and was communicated to the senate. after the sense of that body was found to be for his admission, the door was opened, and the clerk was admitted to deliver his message, and present the enrolled bill for signature. it was then signed by the president of the senate. what should be thought of this, as taken in connection with the fate of the act and pendency of the presidential election? was it a circumstance which must ever be remembered with mortification, and which therefore will never be forgiven? to give a further color to the suggestion that the passage of the act was attended with improper circumstances, the attempt has been made to impress an idea that it was adopted without mature deliberation, and hurried through its different stages in a reprehensible manner. if we are not willing to be misled by pretext, let us examine what was the fact. a recurrence to the journals of the house will prove that the subject of the judicial establishment was recommended by the president of the united states to the attention of congress at two successive sessions. in his communication at the opening of the first session of the sixth congress, he recommended the subject in the following terms: "to give due effect to the civil administration of government, and to ensure a just execution of the laws, a revision and amendment of the judiciary system is indispensably necessary. in this extensive country it cannot but happen that numerous questions respecting the interpretation of the laws and the rights and duties of officers and citizens must arise. on the one hand, the laws should be executed; on the other, individuals should be guarded from oppression. neither of these objects is sufficiently assured under the present organization of the judicial department. i therefore earnestly recommend the subject to your serious consideration." in the house of representatives, this part of the president's speech was referred to a select committee. they reported a bill which contained a variety of provisions for amending the system. the bill was referred to a committee of the whole, in which it was discussed several days, and was afterwards recommitted to the same gentlemen who had reported it. as it was printed for the use of the members, and the subject was extensively interesting to the community, it was judged proper to defer a final decision until another session, and in the mean time gentlemen might have an opportunity to acquire information that would assist them to form a more satisfactory judgment. at the second session of the sixth congress, the subject was again recommended by the president. these are his words: "it is, in every point of view, of such primary importance to carry the laws into prompt and faithful execution, and to render that part of the administration of justice which the constitution and laws devolve on the federal courts, as convenient to the people as may consist with their present circumstances, that i cannot omit once more to recommend to your serious consideration the judiciary system of the united states. no subject is more interesting than this to the public happiness; and to none can those improvements which may have been suggested by experience be more beneficially applied." on this recommendation a select committee was appointed. that committee reported a bill to provide for the more convenient organization of the courts of the united states. the bill underwent a long discussion and a variety of amendments. it was finally passed in the house of representatives by a majority of to ; and in the senate by a majority of to . after knowing these facts, will gentlemen have the hardihood to call this a hasty measure? compare the whole proceedings with what took place respecting a former act. gentlemen have spoken of the general power of congress to repeal acts passed by their predecessors. are they prepared to repeal the act to which i now refer? it is the act relative to the temporary and permanent seat of government, passed in july, . that act was carried in the senate by a majority of to . in the house of representatives, a committee of the whole agreed to it as it came from the senate. twelve different amendments were proposed in the house; the yeas and nays were taken on each of them, and every amendment was rejected--all in one day. a motion was then made for the third reading of the bill on the monday following; the motion was negatived. it was moved that the third reading should be on the next day; this was negatived. the yeas and nays were taken twelve times during the sitting. a motion was made to adjourn; this was negatived. the general rule of the house being against reading a bill twice on the same day without special order, a motion for then reading the bill the third time was made on the part of its advocates, and carried. on taking the yeas and nays, for the thirteenth time in one day, the bill passed by a majority of to . mark the smallness of the majority in both houses; the utter rejection of every amendment in the house of representatives; the hurried manner in which it was forced on to the final question. recollect other considerations relative to the passage of that act, and then judge whether it was not attended with circumstances signally improper. if matters of this kind constitute a sufficient cause for gentlemen to repeal any act passed by their predecessors, why should we remain here in pursuance of this act? will any gentleman say it is for our personal convenience that the seat of government is now at this place? is it at present for the public convenience? is it less expensive for individuals, or for the public, than it would be in some of your commercial cities? have you here the opportunities for valuable information which might be had elsewhere? what, then, should detain us, if it be not a regard to stability and consistency in public proceedings, combined with a regard to the expectations of respectable persons seriously interested in the question? but if you may repeal the act organizing the judicial system, what principle is there that ought to confine the government to the place in which we are now assembled? repeal this act, as is proposed by the bill on your table, and you shake the principle of public stability and consistency. repeal this act, and there can be no principle of constitutional obligation, none of political honor, or legal right, to detain you here. wednesday, march . mr. lowndes moved that the further consideration of the bill be postponed until the first monday in december next; on which a debate of considerable length ensued; when, the question being taken thereupon, it passed in the negative--yeas , nays . and, after debate thereon, the main question was taken that the said bill do pass, and resolved in the affirmative--yeas , nays , as follows: yeas.--willis alston, john archer, john bacon, theodorus bailey, phanuel bishop, richard brent, robert brown, william butler, samuel j. cabell, thomas claiborne, matthew clay, john clopton, john condit, richard cutts, thomas t. davis, john dawson, william dickson, lucas elmendorph, ebenezer elmer, john fowler, william b. giles, edwin gray, andrew gregg, joseph heister, william helms, wm. hoge, james holland, david holmes, george jackson, charles johnson, william jones, michael leib, john milledge, samuel l. mitchill, thomas moore, james mott, anthony new, thomas newton, jun., joseph h. nicholson, john randolph, jun., john smilie, john smith, (of new york,) john smith, (of virginia,) josiah smith, samuel smith, henry southard, richard stanford, joseph stanton, jun., john stewart, john taliaferro, jun., david thomas, philip r. thompson, abram trigg, john trigg, philip van cortlandt, john p. van ness, joseph b. varnum, isaac van horne, and henry woods. nays.--thomas boude, john campbell, manasseh cutler, samuel w. dana, john davenport, john dennis, william eustis, abiel foster, calvin goddard, roger griswold, william barry grove, seth hastings, joseph hemphill, archibald henderson, william h. hill, benjamin huger, thomas lowndes, lewis r. morris, joseph pierce, thomas plater, nathan read, john rutledge, john stanley, benjamin tallmadge, samuel tenney, thomas tillinghast, george b. upham, killian k. van rensselaer, peleg wadsworth, benjamin walker, lemuel williams, and henry woods. friday, march . _state balances._ mr. thomas, from the committee appointed to inquire into the expediency of extinguishing the claims of the united states, for certain balances, which, by the commissioners appointed to settle the accounts between the united states and the individual states, were reported to be due from several of the states to the united states, made a report, as follows: that the following balances were, by the said commissioners, reported to be due from the states hereinafter mentioned, to wit: from the state of new york, two millions seventy-four thousand eight hundred and forty-six dollars; from the state of pennsylvania, seventy-six thousand seven hundred and nine dollars; from the state of delaware, six hundred and twelve thousand four hundred and twenty-eight dollars; from the state of maryland, one hundred and fifty-one thousand six hundred and forty dollars; from the state of virginia, one hundred thousand eight hundred and seventy-nine dollars; and from the state of north carolina, five hundred and one thousand and eighty-two dollars. that, as none of these states has evinced a disposition to pay any part of those balances, except the state of new york, which has been credited on the books of the treasury for two hundred and twenty-two thousand eight hundred and ten dollars and six cents, for money expended in erecting fortifications, pursuant to an act of congress, passed the th of february, ; but as it would be unequal to ask a further payment from that state exclusively, and as it does not appear that any measure of coercion can ever be resorted to, a further continuance of the demands against those states, the justice and equity of which they do not admit, will, in the opinion of the committee, answer no useful purpose; but, on the contrary, is calculated to occasion perpetual irritation and disquiet, as well to the creditor as to the debtor states. the committee are, therefore, of opinion, that it is expedient to extinguish the claims of the united states for those balances, and for that purpose report a bill, which is herewith submitted. the report was laid on the table. the bill was twice read, and committed to a committee of the whole house on wednesday next. wednesday, march . an engrossed bill for revising and amending the acts concerning naturalization was read the third time, and on the question that the same do pass, it was resolved in the affirmative--yeas , nays , as follows: yeas.--willis alston, john archer, john bacon, theodorus bailey, james a. bayard, phanuel bishop, thomas boude, robert brown, william butler, samuel j. cabell, thomas claiborne, matthew clay, john clopton, john condit, thomas t. davis, john dawson, john dennis, william dickson, lucas elmendorph, ebenezer elmer, william eustis, john fowler, wm. b. giles, andrew gregg, william barry grove, joseph heister, william helms, joseph hemphill, william hoge, james holland, david holmes, george jackson, william jones, michael leib, john milledge, samuel l. mitchill, thomas moore, thomas newton, jun., joseph h. nicholson, john smilie, israel smith, john smith, (of new york,) john smith, (of virginia,) samuel smith, henry southard, richard stanford, joseph stanton, jr., john stewart, david thomas, thomas tillinghast, philip r. thompson, abram trigg, philip van cortlandt, john p. van ness, joseph b. varnum, isaac van horne, robert williams, and henry woods. nays.--john campbell, manasseh cutler, samuel w. dana, john davenport, abiel foster, calvin goddard, roger griswold, archibald henderson, william h. hill, benjamin huger, thomas lowndes, ebenezer mattoon, lewis r. morris, thomas plater, nathan read, john rutledge, john c. smith, josiah smith, john stanley, benjamin tallmadge, samuel tenney, george b. upham, killian k. van rensselaer, peleg wadsworth, benjamin walker, and lemuel williams. thursday, march . _wyoming controversy._ the house went into a committee of the whole on the report of the committee to whom was referred the petition of sundry inhabitants of the state of pennsylvania, settled on the lands claimed under grants from the state of connecticut, antecedent to the trial before the court of commissioners between the state of pennsylvania and connecticut. the report of the committee embraces an historical view of the wyoming controversy, recites the act of pennsylvania, for preventing intrusions upon land in northampton, northumberland, and luzerne counties. the report then proceeds to state: "the petitioners complain of these acts as unconstitutional, and pray that provisions may be made by law for transferring the proceedings under these laws from the state courts of pennsylvania to the courts of the united states; and that further provision may be made by law, that in the trial of any prosecution in virtue of the said acts the defendant may have a _venire facias_ to summon juries from some state, other than pennsylvania. your committee conceive that the right of jurisdiction was finally settled by the decree of trenton, of the th december, , and that by the decision of the circuit court for the district of pennsylvania in april, , the whole question of the right of soil was fully taken up and decided by the court, in a case the most favorable for the defendant; which decision not having been revised and reversed, should also be considered as final and conclusive. "your committee therefore, upon the whole circumstances of the case, are of opinion, that the measures contemplated by the petitioners would tend very much to increase the embarrassments already experienced by the state of pennsylvania, in extending and enforcing its lawful jurisdiction over the lands in question, and that it would be highly inexpedient on the part of the united states to interfere with the regulations of the states in that respect, or to countenance, by any means whatever, any circumstances of insubordination to the state authority. "your committee are therefore of opinion that the prayer of the petitioners ought not to be granted." after a debate, the committee rose and reported their agreement to the report. a motion was made and lost to recommit the report to a select committee. it was then moved to postpone the further consideration of the report till the last day of november next. not carried. the question was then taken on concurring with the committee of the whole in their report, by yeas and nays, and agreed to--yeas , nays . and so the petition was rejected. friday, march . the house being informed that narsworthy hunter, the delegate from the mississippi territory, in this house, died last evening: on motion, it was _resolved_, that a committee be appointed to take order for superintending the funeral of narsworthy hunter, late a delegate from the mississippi territory; and that this house will attend the same. _resolved_, that the members testify their respect for the memory of the said narsworthy hunter, by wearing a crape on the left arm, for one month. _resolved_, that the speaker of this house address a letter to the governor of the mississippi territory, to inform him of the death of narsworthy hunter, the delegate from the said territory in this house, in order that measures may be taken to supply the vacancy occasioned thereby. _ordered_, that mr. leib, mr. davis, mr. holland, mr. rutledge, and mr. lewis r. morris, be appointed a committee, pursuant to the first resolution. _state balances._ the house resolved itself into a committee of the whole on the bill to extinguish the claims of the united states for balances reported against certain states by commissioners appointed to settle the accounts between the united states and the individual states. mr. thomas.--mr. chairman, i rise, with a great deal of diffidence, to deliver my sentiments on this floor, as i have not been accustomed to public speaking; however, a sense of my duty as a representative of the united states, as well as the immediate representative from the state of new york, impels me, on this occasion, to ask the indulgence of the committee while i make a few remarks on the subject of the bill now under consideration. sir, a number of the debtor states, and particularly the one which i have the honor to represent, have always believed that they were prodigiously injured in the settlement that was made; they have always believed that there was something radically wrong, grossly unequal, in the accounts exhibited by the individual states, and allowed by the board of commissioners; in this belief, they have frequently called for information on the subject, for a re-examination of that settlement, and have as often been denied it. much might be said to prove that the very economical system adopted and adhered to by the state of new york in limiting the prices of produce, and in liquidating the accounts of her citizens for supplies furnished during the revolutionary war, operated particularly prejudicial to that state in the settlement. i shall, however, waive any remarks on this for the present, and confine myself principally to the rule which was adopted for apportioning the expenses of the war among the several states. sir, the committee will recollect that by an act of congress passed in the year , the enumeration of inhabitants made in the year was adopted as the rule for apportioning this debt among the thirteen states. i shall in the first place examine the original contract entered into by these states, and under which these expenses were incurred, and then endeavor to show the effect which, adopting an enumeration made seven or eight years after the close of the war, had upon the several states different from what the same rule would have produced had the apportionment been made according to the numbers in each state at that period, say . in the year , the people of these states entered into a confederation for various purposes, one of which was, to prosecute the war against great britain. in the eighth article of this compact it was expressly agreed that-- "all charges of the war, and all other expenses that should be incurred for the common defence, and general welfare, and allowed by the united states in congress assembled, should be defrayed out of a common treasury, which should be supplied by the several states in proportion to the value of all lands within each state granted to or surveyed for any person as such lands and the building and improvements thereon should be estimated, according to such mode as the united states in congress assembled, should from time to time direct and appoint." this, mr. chairman, was the agreement under which this debt was incurred; and here allow me to ask the honorable gentleman from massachusetts (mr. bacon) whether he was correct when he told us the other day that this settlement had been made agreeably to the articles of confederation; and, further, whether, agreeably to that compact, the state which he represents would have been allowed for her losses in the penobscot expedition, which has enabled her to become a creditor state of upwards of one million two hundred thousand dollars, and more than one-third of the whole amount of the balances. sir, had the original agreement under which these expenses were incurred been adhered to in the settlement, no one ought now to complain; but, in order to comply with it, the expenses of the war ought to have been apportioned among the several states according to the value of the lands and buildings at the time these expenses were incurred, and i do contend that the period immediately after the termination of the war was the only proper one for carrying into effect this stipulation. i am persuaded that no gentleman on this floor will deny that the existing circumstances of the several states at that period were the most proper to determine the just proportion which each state ought to pay of these expenses, by whatever rule might be adopted. admitting, then, that congress had the power, and it was judged expedient to deviate from the original contract, and adopt as the rule of apportionment the enumeration of inhabitants as a more practicable one, ought it not to have had reference to the numbers in each state at the close of the war? most unquestionably, mr. chairman, no gentleman will deny this, and that the year was the proper time. it may, however, be said that no enumeration was made till the year , seven years afterwards. i grant it. but will this alter the justness of my position? not at all. it must be obvious in the mind of every gentleman who has reflected on the subject, that the relative numbers in each state had changed materially between the year , when this settlement ought to have been made, and the year , when it was made. in order to establish this fact, i have adopted this method; i have admitted what i believe every gentleman who hears me will, without hesitation: that there has been no material variation in the increase of population in the several states since the year ; that the increase was nearly, if not correctly, in the same ratio between the years and , with the increase between the years and ; that is, that the relative increase of population in the several states was nearly, if not correctly, in the same proportion for the seven years previous to the year that it was for the ten years subsequent to that period. this i have established as my data, by which i have ascertained the numbers in each state in the year , and having apportioned the whole debt among the several states, according to the enumeration, i find the following to be the result: that the state of massachusetts, instead of being a creditor of $ , , , she would have been a creditor for only $ , ; that the state of connecticut, instead of being a creditor state of $ , , she would have been a debtor state for $ , ; that the state of rhode island, instead of being a creditor state for $ , , she would have been a debtor state for $ , ; that the state of new jersey, instead of being a creditor for $ , , she would have been a debtor state for $ , ; that the state of new york, instead of being a debtor state for $ , , , she would have been a creditor state for $ , , &c. this, mr. chairman, would have been the situation of these states had the apportionment been made according to the numbers in each state in the year . as for the accuracy of this statement i think i can with safety pledge myself; it is, however, open for any gentleman who will give himself the trouble to examine it for himself. the principles on which it has been made cannot be disputed, as it respects the state of new york; if any thing, it does not make enough in her favor, for it is evident that the emigration into that state from the neighboring states was greater for the first seven years after the close of the war than it has been for any subsequent seven years. will, then, mr. chairman, any gentleman hesitate a moment to pronounce the rule of apportionment which was adopted unjust, unequal, and erroneous? will any gentleman say, sir, that the rule of apportionment was a just one, or as just as the nature of the case would admit of, which brought the state of new york in debt upwards of two millions--two-thirds of the whole amount of the balances--when, on the principles of righteousness, on the principles of legal contract, or any other principles, but an unauthorized act of congress, that state would have been a creditor state for nearly a million? mr. chairman, i admit, as the settlement has been made, and the creditor states have received their balances, that it would be improper now to take up this subject _de novo_, and endeavor to compel those states to refund what they have received more than they were entitled to; this is not expected--it is not asked; all that is asked of you is, that you render such justice to those injured states as the present situation of this transaction will admit of; this is all that is contemplated in the bill now before us. sir, as to the present situation of the state of new york with respect to this subject, she has not acknowledged the justice of this claim, as was stated by some gentlemen when this question was under consideration the other day; she has uniformly denied it. it is true she did comply with the act of congress passed in february, , and has expended and been credited on the books of your treasury for $ , under that act; she did this, not from a conviction of the justice of the claim, but from motives which have always actuated her conduct, as well during the revolutionary war as since, to do every thing in her power for the general welfare of the nation, whenever its exigencies required it, and also from an expectation that the other states called debtor states would do the same, and thereby get rid of an evil which she considers as having a tendency to alienate the good will and cordial affection so necessary to be cherished between these states--a cause, sir, which has and will, while it is suffered to exist, occasion perpetual irritation and disquiet, as well to the creditor as to the debtor states, and which may at some future period produce consequences more fatal. i say, sir, these were her motives in agreeing to that measure; and did she not evince a magnanimous spirit by doing it? a willingness to suffer an additional injury herself, rather than not remove a cause which might put in jeopardy the peace and harmony of these united states? but, mr. chairman, as it can answer no useful purpose to have the remainder of the money expended in the manner directed by the act--and this i am warranted in stating to the committee, not only as my own opinion, but as the opinion of the gentleman who was employed under government as an agent or commissioner to superintend the expenditure already made--as no other state has evinced a disposition to extinguish these balances by paying any part of them, or by complying with any of the terms heretofore offered by congress; and as it must be admitted on all hands that congress have no power to effect it by eviction, i ask gentlemen if it would be just or reasonable that the state of new york, who has been injured more in the settlement than any other state in the union; who has already paid upwards of $ , towards these balances, and who is the only state that has, or in all probability ever will, pay a cent towards them--i say, i ask gentlemen of the committee whether it would be just that that state should now be driven to one of two alternatives; either to draw near a million of dollars from her citizens and expend it where it will answer no useful purpose to the state nor to the nation, or to withhold any further appropriations, and thereby incur the imputation of having violated her faith? i call upon gentlemen seriously to consider whether it would not be prodigiously unjust to hold that state in this predicament; whether it would not be adding injury to injustice to do it? mr. chairman, i do flatter myself that the representatives of this nation, convened here to legislate on fair and equitable principles, will not suffer a new wound to be inflicted on that state, but that they will unite with one accord in passing the bill now before us, and thereby not only heal the one already made on that, as well as several of her sister states, but remove a rock which may endanger our federal ship. the bill was supported by messrs. randolph, van rensselaer, hill, van ness, gregg, bayard, smilie, macon, s. smith, claiborne, and holland--and opposed by messrs. elmer, bacon, eustis, hastings, and butler. the question was then taken on the committee rising, and reporting the bill without amendment, and carried--yeas , nays . a motion was then made that the bill be engrossed for a third reading on tuesday, and carried--yeas , nays . a motion was then made by mr. leib to recommit the report of the select committee on which the above bill was founded, in order to correct an erroneous statement in relation to pennsylvania. monday, march . _french spoliations._ mr. griswold said, that he hoped the resolution which he had laid on the table for indemnifying for french spoliations would be first taken up. it was important, before a decision was made on the repeal of the internal taxes, that the extent of indemnities made by government should be known. he therefore moved a postponement of the bill on internal taxes till to-morrow, that, in the mean time, his motion might be acted upon. he concluded by desiring the yeas and nays. the motion of mr. griswold is as follows: "_resolved_, that it is proper to make provision by law towards indemnifying the merchants of the united states for losses sustained by them from french spoliations, the claims for which losses have been renounced by the final ratification of the convention with france, as published by proclamation of the president of the united states." mr. lowndes observed, that it was nearly two months since the committee was raised, to whom had been committed the petitions of merchants praying indemnities; notwithstanding this length of time, the committee had not yet met. he hoped this resolution would induce the committee to meet. mr. s. smith said, that he had presented the first petition on the subject of french spoliations, and that it had been immediately referred to a select committee, who, though they had made progress in the business committed to them, had not considered it fair to decide until all the petitions expected on the subject had been received. one indeed had been presented only this morning. mr. s. asked if this mode was not perfectly just and fair? for himself, on this subject, he was precluded from voting, as he was deeply interested in the decision of the house. he mentioned this circumstance that the reason might be understood why particular gentlemen from different parts of the union did not vote on this question in its several stages. mr. lowndes said he did not consider the right of deciding the principle delegated to the select committee. that must be decided in the house. it was the duty of the committee barely to make arrangements to protect the house from imposition on the score of facts. if it shall be determined by the government, that it is improper to make compensation--though he thought such a decision scarcely possible--the select committee may be discharged. if, on the other hand, it is thought proper to compensate, the committee may go into the investigation of details. mr. mitchill felt it an obligation, that the case of those whom he had the honor to represent, and that of the other merchants in the united states, should be taken up and receive from this house the most deliberate and serious consideration. he had before submitted to the house his ideas on the proper course to be pursued, which it was not necessary for him to repeat. he would, however, observe, that the resolution now made was so broad as entirely to defeat its object. the first reference of this business was to a select committee instructed to examine all the papers and documents in relation to it, with an instruction to report their opinion to the house; on receiving which the house might be able to come to a decision. on the other hand, the present proposition goes to commit the house on the whole extent of the subject without any examination whatever. mr. m. said, he would suggest a few reasons, which satisfied his mind that a decision should not be too rapidly pressed. the vessels taken by the french admitted of various classifications. one class consisted of those that were captured before the dissolution of our treaty with france; another class, of those which were captured after that event; another class, of those that were captured by picaroons without commissions; and another class, where captures were made on account of contraband goods. all these classes involved distinct considerations; and when the subject was presented to the house in a form so complicated, was it proper precipitately to decide a principle that might bind the government to make indemnity for all cases whatever? mr. m. said he had no doubt but that such property of the citizens of the united states as came fairly under the character of spoliated property, would be considered as a fit subject of indemnity. he was one of those who thought that in such cases payment ought to be made. he considered the merchants as a very important class of citizens, and that their interests ought to be protected. this he thought the more necessary from the consideration of the bill on the table, which, when passed, will render the government very dependent on mercantile credit. mr. m. was of opinion that the best way of accomplishing the object of the merchants was not to precipitate the subject. on the other hand, he was of opinion that the best chance of success would arise from an examination of the various classes of spoliations, from separating them from each other, thereby enabling the house to act understandingly upon them. the resolution of the gentleman from connecticut was so vague as not to be susceptible of any distinct meaning. he hoped, therefore, the subject would be suffered to undergo a full and deliberate investigation in the select committee, which he, as a member of that committee, assured the house was progressing as fast as a sense of justice and a regard to our merchants require. mr. dana.--the object of the present motion is to take up the resolution of my colleague, and to take order upon it--not to decide definitely upon it. this being the true question, i hope the gentleman from new york will not think it improper in me to say that many of his remarks do not apply to it. as the question is not whether we shall immediately decide the point, but only place it in a train for decision, it must be discussed either in a committee of the whole, or in a select committee; and we ask the house now to decide which, that it may be progressing towards a final decision. the resolution states a general principle. if it is the fixed determination of the majority, without an inquiry, not to grant any relief whatever, there is an end of the business. but if you agree to grant any relief, the resolution ought to be adopted. the principle is then established of indemnifying; after which you may discriminate. the principle on which the resolution is founded is not that government has declined to insist upon the claims of its citizens against the french; but that it has undertaken to abandon their claims, so that no citizen can now come forward with his claim either against the french government or any citizen of france. for this is the construction of the treaty as finally ratified by the government. it is a complete surrender and renunciation of all demands. among the first claims of our citizens are some of private right, which were it not for the treaty, could be recovered in the courts of france, but which the treaty bars. this constitutes a class of claims which the government cannot refuse to indemnify. there are other descriptions of claims which might require discrimination; in some of which the degree of compensation should be varied, and others in which there should be no compensation whatever. i think, therefore, it is proper for the government to say the business shall be attended to; at some future time an inquiry may be made into the nature of the various claims. this is all we ask. mr. griswold said that the gentleman from new york had misapprehended the order of proceeding in that house. he supposes the present resolution so vaguely worded as to be improper to be passed. but, if taken up, that very gentleman may offer any amendment he pleases. i do, however, apprehend that it is so worded as to bring the subject fairly before the house. it is worded even with caution. its sole object is to bring the principle of indemnity before the house, unfettered, that its decision might not be embarrassed by any details; supposing there would be an indisposition in the house to pledge the nation to an unlimited extent, the words used are, "towards indemnifying." gentlemen, therefore, who are disposed to do any thing, can feel no objection to a resolution so qualified. other parts of the resolution are worded with equal caution, so as to extend only to cases where losses are renounced by treaty. are gentlemen unwilling to indemnify for such losses? this is a principle proper for decision in committee of the whole. why take it to a select committee? it involves no details; it requires the elucidation of no facts. we know the losses of our merchants, and we know the treaty has renounced them. the house is, therefore, prepared to say whether it will or will not indemnify. when the principle is decided, it may be sent to a select committee to settle the details. i hope that it will be taken up, and an early day fixed for consideration. the gentleman says the committee are progressing. it may be so. though i observe the gentleman from south carolina says the committee has not yet met. how progressing? without meeting? i do not understand this new mode, though i will not say that it is not a very correct mode. the gentleman further says the committee have not progressed because they wished to have first all the petitions before them; but the principle to be settled is as much involved in one petition as in all. mr. gregg said he should not have risen but for the remarks of the gentleman from south carolina, and after him those of the gentleman from connecticut, who had stated that the committee had not met. being a member of the committee he would inform those gentlemen that the committee had met; that they had perused a number of the papers, and had determined that it was improper to proceed until they had received documents that would show the extent of the claims. as the business now stands, we find it referred to a select committee, instructed to examine the papers, and report their opinion thereupon. this report will form the grounds of decision for the house. now the gentleman would wrest the business from the committee, and urge the house into a decision without any of the necessary information. the attempt was unprecedented. mr. g. said he never knew a similar instance where the select committee had not been previously discharged. mr. lowndes rose to explain. he said that when he informed the house that the committee had never been called together, he had been induced to say so, from never having been himself notified, though a member of the committee. mr. bayard thought the motion ought to prevail for the reason assigned by the honorable gentleman from connecticut. he has properly remarked that we are not now called on to decide the abstract question, but only to say what course of proceeding shall be pursued. the point ought now to be decided whether the business shall be sent to a select committee, or to a committee of the whole. the gentleman from pennsylvania says it is altogether unprecedented to take a subject out of the hands of a select committee. but this will not be the effect of the resolution; which will only facilitate the business before the committee, and shed additional light on the path they ought to pursue. we do not wish to interfere with the operations of the committee, but to decide a question that will greatly facilitate their proceedings, and which question ought to be settled in a committee of the whole. it is peculiarly and strikingly proper to postpone the question of repealing the internal taxes until a decision shall have been made on these claims. not that we are anxious to decide upon them immediately, but because we are solicitous not to prejudge all claims to indemnity by repealing the very taxes on which the indemnity must depend. do gentlemen mean to decide at once thus precipitately against all indemnity whatever? if they are not in favor of so deciding, surely they will not be for immediately deciding on the internal taxes. let the gentleman from new york classify the claims as he pleases, can he tell the extent of the demands? may they not amount to five million or ten million of dollars? and if to either sum, can we with propriety dispense with the internal taxes? it appears from the report of the secretary of the treasury that the whole of the revenue for the year and will be wanted. if, then, these claims shall be allowed, and shall produce an increase of the public debt, the fund derived from the internal revenue will be required. it is cruel to decide at once against the claims of our merchants. if it is predetermined not to give them relief, at least allow them the consolation of a hearing. whoever votes for now taking up the question of the repeal of the internal taxes, votes, not only against indemnifying, but also against hearing the merchants; because he votes away all means of indemnification. it is hard, peculiarly hard, that at the moment when you are about to throw the whole burdens of the government upon the merchants, you should deny them a hearing, an impartial hearing, of their claims. suppose there should be a combination of these men, seeing the government act towards them with such flagrant injustice, to refuse all importations. i ask, if you do not, by such treatment, put the government entirely into their hands? if gentlemen will agree to postpone the question of internal taxes, we will agree to postpone this question, if they are not prepared to decide upon it. the subject of the internal taxes is the least pressing of all the subjects before the house. the bill, indeed, ought not to pass until we know the appropriations that are necessary to be made for the present year. have gentlemen shown, can they show, that with propriety these taxes can be dispensed with from any retrenchments that can be made in our expenditures? i do not know any official document on this point, except that of the secretary of war, who, in his very correct report, says there will be a saving in his department of a little more or less than $ , ; which report i confess i do not understand. the committee of ways and means say there will be a retrenchment in the war department of a sum not exceeding $ , ; which mode of expression i do not precisely comprehend. surely we ought to know with precision the sums that will be required for the objects of the government before we abandon our resources. mr. eustis thought the object of indemnity to our merchants very important both in its nature and its consequences. and, first, as to its amount, it was known to be great. the consequence of these applications will be a hearing, and procedure thereon. and the amount of the claims, as well as the nature of them, ought to have great influence on the deliberations of the house. and yet we talk of deciding the abstract question, when the very facts on which we are to decide are not before us. for it will be perceived by the public prints that the claims of the merchants of the state of massachusetts are not yet brought forward. the necessary evidence is not before the house. i appeal to the gentlemen to know how we are to act, understandingly, if the subject be taken up now. what is the abstract question? will gentlemen say they will pay all demands before they know any thing of their nature or amount? the claims of our merchants are very serious, and merit great consideration. but the revenue, which gentlemen are so anxious to retain, to them will be but as the light dust in the balance. i presume that the losses of the merchants of massachusetts alone are not less than five to ten millions of dollars. but to act understandingly upon them we must have evidence as well of their amount as their nature, both of which we at present want. mr. rutledge.--i am sorry the resolution of my honorable friend from connecticut is not acceptable to the gentleman from new york. it is not the least indelicate to that committee. on the contrary, were i a member of that committee, i should feel infinitely gratified by it. i would ask solicitously, whether it were possible that congress would agree to this principle before the details were gone into. we are now for giving that information to the committee. the honorable gentleman says this resolution conveys no light. but i will say, that, if adopted, it will confer not only light, but comfort to our merchants. it will foster their hopes, and animate them to meet the difficulties under which they are staggering. the gentleman from massachusetts says there is no evidence of fact. what fact? surely he will not say there is no evidence of the french having condemned our vessels, and of their having committed vast spoliation. if this were so, how happens it that an american embassy had demanded compensation; and that, on the ulterior negotiations of the government, the government had said we will abandon it, that we may release ourselves from guaranteeing to france her colonial possessions. had this not been so, france might have called upon us to guarantee her west india possessions, and to supply her with men and money. from this situation we have been kept by those negotiations which terminated in an abandonment of the just claims of your merchants on the french government or her citizens. and this constitutes your good bargains. if these are facts, we possess sufficient evidence not only to justify, but to compel our paying the merchants, if under the influence of common honesty. the amount is perfectly immaterial. whatever it is we must pay it. it is true that of the millions claimed, government may not in law or equity be compelled to pay more than a small part. but if you establish the principle that there shall be an indemnity made, you enable your committee to devise the mode of collecting evidences of and settling the validity of the claims. but the gentleman from massachusetts says these taxes, right or wrong, must be repealed. for, he says, the public expectation has already decided the question; and that, indeed, the public officers could not now collect them. but i hope, for the honor of the government, and of the american people, this opinion is not correct. mr. mitchill begged to be indulged in making a few observations on what had fallen from the gentleman from south carolina. i do not know that these observations will satisfy his mind, but they will at least serve to justify my own character as a representative of a portion of the union respectable for its mercantile opulence. i believe the subject of indemnities, in the contemplation of gentlemen, has swelled much beyond its real magnitude. _i believe that a large portion of losses were so covered by insurance that government will not be obliged to pay for them._ i feel as sincerely for the merchants as any gentleman; yet i do not wish to swell the subject to an improper magnitude. suppose, as the gentlemen wish, we say we will indemnify, does that pay the claims? besides, it is not so evident, as some gentlemen assert, that our merchants have been deprived of valuable rights by the mode in which the french convention has been ratified. let gentlemen recollect the mass of depredations committed by great britain, and the engagements, under treaty, of the british government to make reparation for them. yet, notwithstanding this engagement, reparation has been to this day evaded, under the pretext that the claims under one article depend on the construction given to a preceding article. now, suppose in the french treaty there were the same provisions as in the british treaty, would this have produced payment? no. the operations under the treaty might have gone on as long as under the british treaty, with the like effect, and without any substantial provision being made. i state these circumstances barely to show that the renunciation in the french treaty is not so grievous as some gentlemen imagine. it is manifest that an inattention to similar claims has been considered as less a departure from right among nations than among individuals. and, judging of the future by the past, my opinion is that a retention of the article stricken out of the french convention, would not have benefited the claims of our merchants, or afforded them any adequate eventual compensation. in france, as on the other side of the channel, there would have been claim raised against claim, pretext against pretext, and the boards for adjusting the several claims might have been, in this case, as in the other, dissolved. it is said by the gentleman from delaware, that it is the object of gentlemen on his side of the house to prevent a repeal of the internal taxes. though i admire the gentleman's candor, i believe it is needful to repeal these laws. i believe, too, the people wish them repealed. but i further believe, that if future events shall show the necessity of restoring these taxes, the good sense of the people will restore them; and if the indemnities agreed to be made shall require them, i believe they will be restored. the work of examining these claims will be the work of years. what is the consequence? will the present repeal of the internal taxes interfere with the doing substantial justice to our merchants? suppose these taxes are removed, are not the products of the country increasing? and are not our resources increasing with our population? the truth is, whenever your treasury wants a fresh supply of resources, the people will submit to what their representatives desire. are we to legislate for succeeding ages? no. we are to suffer our successors to act for themselves; and i have no doubt either of their ability or their inclination to do justice. mr. dana.--if i understood the honorable member from new york, he admitted the propriety of making some indemnity; and if so, i could not understand why he dwelt so elaborately upon the minutiæ of detail, to show why we ought not to indemnify. nor can i yet understand him, unless his object be to let the subject sleep, and to say that the longer it is delayed, the less chance of reparation. the gentleman says, property _insured_ cannot be recovered. but is that gentleman, coming as he does from the first commercial city in the union, yet to learn that, in the case of loss, the _insurer_ stands precisely in the place of the _insured_? is he so ignorant of this fact as not to know that the underwriter, in such circumstances, becomes entitled to the same indemnity with him who is underwritten? with regard to the analogy attempted between the british treaty and the french convention, it is totally incorrect. for, in the british treaty, we had insisted upon the claims of our merchants to reparation by britain, or her subjects; whereas, in the french convention, we had renounced all claim. nor were the remarks of the honorable member more fortunate respecting the operations under the british treaty; for he must know that our merchants have, in many cases, received compensation under it. one concession has been made which i did not expect would be avowed so early, either by the gentleman from massachusetts or the gentleman from new york; a confession that is founded on the principle that the house, before examining the important details which ought to regulate their decision, are so placed by the head of the executive ministry, that certain taxes, recommended to be abrogated, must be repealed. you must repeal them. the public clamor is excited, and you must obey it. i did not suppose it would so soon have been avowed that we are under the absolute rule of executive influence, and that, to obey it, we are compelled to perjure our understandings. mr. bayard.--the honorable gentleman from massachusetts has thanked me for the candor of my avowal that i am opposed to the repeal of these taxes. but i do not wish to be thanked for more than i really said. it is true, that i do not think this the proper time to repeal all of those taxes, because i do not know that government may not want them. the gentleman from massachusetts has broached a new species of ethics. he says, if the amount of claims shall be small, we may pay, but if large we cannot. but i will tell that gentleman i have never acknowledged such a principle of morality. i believe if the merchants have a just demand for one dollar, we must pay it; and if they have a just demand for one hundred millions, we must pay that too. nor can i too forcibly express my astonishment at an opposite principle avowed by this house. the gentleman says you want evidence, and therefore ought not to act. but can you examine each distinct case? if the subject goes to a select committee, and they shall be allowed years to decide, still they will have to establish some principle; for instance, that a certain description of vessels was captured unjustly by the french; that the injured merchants had a moral claim on the french government for reparation; that the united states had bartered away their rights, and that government, in consequence, is bound to indemnify. if the house decide that the government is bound to relieve in one case, are they not bound to afford relief in all similar cases? will you not, then, be obliged to make a general provision that all claims, so circumstanced, shall be allowed? here is a great mass of claims; some made now, and some not likely to be made for years. what more, then, can you do, than decide the principle which shall be applied to them? my opinion as to indemnity is, that whoever had a valid claim against the french government, which the united states extinguished, has a demand against the united states, which she must satisfy. put the case to its consequence: will gentlemen tell me whether, according to any principle of morality, where you have taken from your citizens all chance of recovery, you are not bound to indemnify for that of which you have deprived them? where the french government was not bound to pay before the convention, you are not now bound to pay. so, in the case of war, you are not bound. but where the claim on the french government was perfect, and you destroyed that claim, your obligation to pay cannot be evaded. i wish to know if the establishment of this principle requires facts? with respect to the circumstances of particular cases, this house cannot act. on those numerous grades of credibility that will be attached to the various claims that shall be made, you cannot decide. to effect this you must establish some competent tribunal. you can establish the principle; but the details could not be settled by congress, even if their attention were exclusively directed to that subject, in three years. having decided the principle, it will be proper to leave the application of it to your courts of law. mr. bacon hoped that a great deal of time would not be spent in exploring the secret motives of individual members. he supposed they should all stand or fall on their own consciences. he hoped, therefore, they should have the question. mr. s. smith.--i am against the proposition of the gentleman from connecticut, because to act now upon it will be in direct opposition to the uniform order of the house. if our attention is thus to be withdrawn from every important object before us, i do not know how we are possibly to progress with the public business. i know of no case, where a particular subject has been referred to a select committee, and it has afterward been taken up in the house, while it remained with the committee. i should have understood the motion, if it had been to discharge the select committee, and to refer the subject to a committee of the whole. as gentlemen, however, have taken so wide a range in the field of debate, i hope their course will produce a saving of time, and that we shall not have their speeches over again on repealing the internal taxes. it is not my purpose, at this time, to enter into a discussion of the claims of our merchants, because i think this is not the proper occasion. but i will tell gentlemen, that if they were disposed to destroy those claims, they could not have pursued a plan more effectually calculated to do it. had such been my intention, i would have offered a resolution so broad and vague as to alarm the whole community as to the amount of indemnity. i would have endeavored to throw the censure attached to their losses on the present administration. i would have opposed their claims to the wish of the nation to repeal the internal taxes. all these steps i would have taken to frustrate any indemnity; and they are just the steps taken by gentlemen who profess so strong a regard for the merchants. let me tell those gentlemen until they shall pursue a far different plan, we must doubt whether they are in earnest to pay the merchants for their losses. if the public business is to be thus perpetually procrastinated, i hope the gentlemen with whom i act will be firm enough, after rejecting this motion, to pursue the other business even to a late hour. the yeas and nays were then taken on mr. griswold's motion, to postpone taking up the bill on internal taxes till to-morrow, in order to take up his resolution on french spoliations; and decided in the negative--yeas , nays . tuesday, march . _state balances._ the bill for extinguishing state balances was read a third time, when mr. davis moved its postponement to the first monday in november. this motion was supported by messrs. davis, bacon, elmer, and goddard, who declared themselves adverse to the passage of the bill; and opposed by messrs. bayard, t. morris, randolph, and nicholas, who declared themselves in favor of the bill. mr. griswold delivered his sentiments against the postponement, declaring, however, his determination to vote against the passage of the bill. the question of postponement was taken by yeas and nays, and carried--yeas , nays . wednesday, march . a new member, to wit, walter bowie, from the state of maryland, returned to serve in this house as a member for the said state, in the room of richard sprigg, who has resigned his seat, appeared, produced his credentials, was qualified, and took his seat in the house. monday, march . an engrossed bill, making a partial appropriation for the support of government, during the year , was read the third time and passed. previous to its passage, conversation took place respecting an alleged looseness of appropriation. this objection was made by mr. griswold, and supported by mr. dana, who were of opinion that the sum in the bill should be more specifically appropriated. the objection was repelled by messrs. milledge, giles, elmendorph, randolph, and alston, who contended that the objection did not apply, and that no inconvenience could arise from a partial appropriation made in the bill and contemplated for a definitive object. a motion made to recommit the bill was lost; when the bill passed--yeas . tuesday, march . _funeral expenses of members._ on a motion made and seconded that the house do come to the following resolution: _resolved_, that, in case of the death of a member of the house of representatives at the seat of government, while congress is in session, the expenses accruing, in conformity to an order of the house, made to testify their respect for the deceased member, shall be paid out of the contingent funds of the house, and not out of his wages for travelling home, as is now allowed by law: _ordered_, that the said motion be referred to mr. davis, mr. lewis r. morris, and mr. nicholson, to consider and report thereon to the house. wednesday, march . _funeral expenses of members._ mr. davis, from the committee to whom was yesterday referred a motion respecting "members of this house dying at the seat of government during a session, of congress," made a report thereon; which was read and considered: whereupon, _resolved_, that the expenses accruing by order of the house, in attending the funeral of narsworthy hunter, a member from the mississippi territory, be paid out of the contingent funds of the house. _resolved_, that the legal representatives of a member of this house, who shall die at the seat of government during the session, shall be entitled to receive the same allowance for his itinerant expenses, as the member would have been entitled to, had he returned to his place of abode. _ohio state government._ the house went again into committee of the whole on the report of a select committee respecting the admission of the north-western territory as a state into the union. the second resolution being under consideration, mr. fearing referred to the provisions of the ordinance empowering congress to divide the territory, from which he inferred that congress had not the right to divide the territory so as to form one part of it into a state, while the remaining section was not made a state, without the consent of the territory; he conceived that congress must, in such event, form this section also into a state. he, therefore, was of opinion that congress must consult the people of the territory before they shall divide the territory. as to the expediency of the resolution, he thought it very expedient to make the division therein marked out. the effect of it would be that the whole of lake erie would be thrown out of the state to be formed, and the inconvenience to the section of the territory not incorporated in the new state would be very great, if it should be attached to the indiana territory, from its great distance, which he understood was contemplated. mr. giles said that the committee who reported these resolutions, so far from entertaining a disposition to change the ordinance, had strictly observed the conditions therein prescribed. [mr. g. here quoted the ordinance.] it appeared therefrom that congress was under an obligation, after laying off one state, to form the remainder into a state. but when? hereafter, whenever they shall think it expedient to do so. mr. bayard agreed that there was no obligation imposed upon congress to decide definitively the boundary of a state. if the ultimate right of congress, after the formation of a new state, to alter the boundary be doubted, they have a right to remove all doubts by so declaring at this time. it is certain that at present great inconvenience would arise from drawing the boundary as fixed in the resolution. the population of the territory does not amount to that which is sufficient to give it admission into the union. he had, however, no disposition to oppose its admission, notwithstanding this circumstance. the population in the eastern state does not exceed forty-five thousand. we are now about to pare off five or six thousand inhabitants, which will bring it down to thirty-nine thousand. a population of forty-five thousand is quite small enough for an independent state. it is a smaller population than exists in any of the present states in the union. from this consideration, it might have been expected that congress would take no step whose effect would be a diminution of that population. the division, as made in the resolution, is manifestly unjust, as far as it relates to the people north of the dividing line. by it they are about to be severed from their connection with the other portion of the territory. mr. b. wished to know to whom they are to be attached? if attached to the indiana territory, the inhabitants, to arrive at the seat of government, will be obliged to go across the new state, a distance of two or three hundred miles. besides, after having advanced them to the second grade of territorial government, you will consign them back again to the first, and thereby give them a system of government extremely odious, and which we ought to get rid of as soon as possible. thus, after having held out to them the flattering prospect of being elevated to the high rank of a state, you degrade them, contrary to their expectations, to the humblest condition in the union. mr. b., therefore, thought it would be most just and politic to include this population of five or six thousand in the bounds of the new state, subject to the reserved right of congress to alter the boundary hereafter. mr. giles said he was not tenacious of his opinions; but it was necessary to justify the contents of the report by stating some considerations that might not be generally known to the members of the house. mr. g. said he supposed the section of the territory, not embraced in the new state, would be attached to the indiana territory; nor would any great hardship result from this disposition; and such as did result would arise from their local situation and not from any circumstances over which the national legislature had a controlling power. he believed that people, to reach the seat of government, had as far to go now as they will then have. his object was to reserve in future to congress the right of determining the boundary of the states in the territory. if this section should once be admitted, he believed it would be very difficult, however proper, to detach it from the state to which it had become attached. the report contemplates the forming a constitution. should the people on the northwardly side of the line be admitted as a part of the state, they will participate in the formation of the constitution--a constitution which will not be ultimately for themselves, but after a short time exclusively for others. this participation would be unjust. the question then is, whether you will suffer those to form a constitution who are not to be permanently affected by it; and whether, if you once constitute a state, you will be able hereafter to alter its boundaries? for if this section be now admitted, gentlemen, by looking at the map, will see that the boundary now fixed cannot be permanent. as to the remarks made by the gentleman from delaware, mr. g. said he was extremely glad that gentleman was for giving to the territory the right of a state. if, however, he had attended to the report, he would have found that his calculation of numbers was incorrect. the population of five thousand had been deducted by the committee, and after that deduction forty-five thousand remained. though the numbers in the territory proposed to be formed into a state amounted, a year ago, to no more than forty thousand, yet it might be stated upon strong ground, that, before the new government can get into operation, there will be a sufficient population to demand admission as a matter of right. by attaching the inhabitants on the north of the line to the indiana territory, they will remain in the same grade of government they now are, and not be degraded, as stated by the gentleman from delaware, to a lower state. this disposition appeared to mr. g. the best that could be made. but if, when gentlemen came to the details of the bill, it should be thought best to introduce into the new state the population north of the line, he said he might have no objection. mr. fearing stated the great inconveniences that would be felt by the inhabitants north of the line, if attached to the indiana territory. he considered the remarks of the gentleman from virginia, (mr. giles,) respecting the participation of this description of citizens in forming a constitution for others, as entitled to little weight. such a measure was by no means uncommon. it had been done in the case of kentucky, and other states. mr. f. conceived that the people of the territory had all equal rights under the ordinance; they had been virtually promised that they should not be attached to any other western territory, and congress had only reserved to themselves the right of admitting them into the union as states. more they could not do, without their consent. mr. bayard moved to strike out of the resolution the words that fix the boundary, for the purpose of introducing words that should prescribe that the new state be circumscribed by the original boundaries of the eastern state, referring to congress the right of making one or more states in said state at any future time. mr. giles said that the state, as formed in the report, was one of the most compact and convenient in the union. the amendment would materially change its character. besides, it would in fact impair the right of congress to accommodate the boundaries to future circumstances. it was well known, and sensibly felt, that there were many inconvenient boundaries to several of the states now in the union; yet so great was the difficulty attending their alteration, that they could not be changed. mr. bayard was not so sensible of the difficulty of altering the boundaries as the gentleman from virginia, who had stated that congress would not have power to alter them when once fixed. this difficulty might exist as to the states now in the union, because congress had not the constitutional power to alter them without the consent of the adjacent states. but if this power be referred to congress, which will be a disinterested tribunal, there will be no difficulty in varying the boundaries as circumstances shall dictate. mr. b. asked, if, while gentlemen are attending to the interests and wishes of one part of the people, they are disposed to disregard the interests and wishes of another part? if they were not, they ought to admit the section, proposed by the resolution to be cut off, to a participation in state rights. mr. bacon objected to the amendment. he said that congress were vested by the constitution with certain powers which they cannot increase, or diminish, or delegate. by the constitution likewise, the several states are vested with certain powers which they cannot increase, diminish, or divest themselves of. by the third section of the fourth article of the constitution, "new states may be admitted by the congress into the union." this act proposes to make this territory a state with state powers under the constitution. how, then, can these people, once a state, divest themselves of these powers. this is a question that does not interest simply the state proposed to be formed, but every state in the union. all are equally interested in preserving the powers vested in them by the constitution. mr. bayard said he did not see any occasion for striking out the proviso. the gentleman from massachusetts (mr. bacon) goes on the principle that congress has only a right to admit, without any reservation. mr. b. said he had always believed the greater included the smaller. if you are vested with the greater power of admitting, you have certainly the minor powers included in the greater power. from the nature of the ordinance, it constitutes the fundamental principle on which the states are admitted--they are not admitted under the constitution. they are to be admitted exclusively under the provision of the ordinance. you may, therefore, say that you will not now exercise the whole power committed to you, but reserve the right of exercising it hereafter. mr. smilie did not consider the principle laid down by the gentleman from delaware as constitutional. we must be governed by the constitution. if the territory be admitted as a state into the union, when admitted it must be bound down by the constitution, which says the boundaries of states shall not be altered but with the express permission of the state. mr. giles--the gentleman from connecticut, (mr. griswold,) affects lately to have discovered a great deal of disguise in the proceedings of this house. what disguise? what were the committee to do? this country is placed in a certain peculiar situation. we have waters running to the east--then to the west; and the committee thought it was desirable to connect these by good roads. with the committee, state principles or interests had no influence--they were governed entirely by general principles and the common interest. the gentleman has also insinuated that the secretary of the treasury holds lands that will be benefited by these roads. it may be so. mr. g. had not inquired; but he supposed he did not hold all the lands. congress may lay out these roads as they please. he could foresee how congress would lay them out, and it is a million to one that they will not touch his lands. the united states are about making a new contract. these propositions are made as additional securities for the national property. the secretary of the treasury having estimated the annual product of these lands at four hundred thousand dollars, mr. g. said, as chairman of the committee, he had applied to him to know his opinion of the manner in which this sum could be best secured, and he gave his opinion that this provision would be most likely to effect that object. this is all the mystery and disguise attending the resolution. mr. smilie said when gentlemen charge particular states with injustice, they ought to be prepared to prove what they advance. if there had been any co-operation between the delegations of virginia and pennsylvania on this occasion, he had never heard of it. the fact was, that no peculiar good could result to pennsylvania from this measure. the great object was to keep up that intercourse which will attach the people of the territory to you. when the territory shall become a state, she will have a right to tax your lands. this benefit, together with the salt-springs, as i understand, is proposed as a substitution far the relinquishment of those rights. mr. fearing said he considered a part of the rights of the territory given up by this resolution; and though the territory would be highly benefited by the projected roads, and the cession of the salt-springs, yet he conceived they would be much more benefited by laying out the roads within the territory. mr. griswold said he was glad the honorable gentleman from virginia had assured the house there was no disguise in this business. if the object be to make an advantageous contract with the territory to secure our western lands, let us offer them five per cent. of the proceeds of those lands, to be paid into their treasury. if they shall be disposed to make roads through pennsylvania and virginia, he should have no objection. he was as sensible as the gentleman from virginia, that whatever improves a part of the union improves the whole; though this was undoubtedly the case, he was not of opinion that a sum of money should be taken from the public treasury, and specially applied to local purposes. under this resolution, according to the calculation of the secretary of the treasury, forty thousand dollars was the smallest sum that would be annually applied to the laying out of those roads. mr. g. said he thought the sum too large to be withdrawn from the national treasury, and directed to local objects. the allusion of the gentlemen to light-houses raised on the connecticut shore does not apply. there was but one light-house in connecticut, ordered to be built by this house, for which the _enormous_ sum of twenty-five hundred dollars had been appropriated. yet this solitary measure had been rejected by the senate. this is the great boon given to connecticut! for these reasons mr. g. hoped the article would be stricken out, and that, if it was necessary to make terms with the new state, they might receive five per cent. on the receipts of the land, to be paid into their own treasury, disposable by themselves as they saw fit. messrs. r. williams, jackson, and holland, said a few words in favor of retaining the article; when the question was taken on striking it out, and lost--yeas . mr. fearing, wishing that half the proceeds of the western lands should be laid out on roads within the territory, made a motion to that effect; lost--yeas . the report of the select committee, without further amendment, was then agreed to, and a bill ordered in conformity thereto. wednesday, april . an engrossed bill for the relief of thomas k. jones was read the third time, and passed. the speaker laid before the house a letter from the secretary of state, accompanying his report on the memorial of fulwar skipwith, referred to him by order of the house on the nineteenth of january last; which were read, and ordered to be committed to a committee of the whole house on friday next. mr. john c. smith, from the committee of claims, to whom was recommitted, on the fifteenth ultimo, their report on the memorial of paul coulon, a french citizen, made a supplementary report thereon; which was read, and ordered to be referred to a committee of the whole house to-day. on motion it was _resolved_, that a committee be appointed to examine and report the state of the office of the clerk of this house. _ordered_, that mr. clay, mr. huger, and mr. southard, be appointed a committee pursuant to the said resolution. mr. mitchill, from the committee to whom were referred, on the fifth instant, the amendments proposed by the senate to the bill, entitled "an act for revising and amending the acts concerning naturalization," reported that the committee had had the said amendments under consideration, and directed him to report to the house their agreement to the same. _north-western territory._ the house resolved itself into a committee of the whole on the bill to enable the people of the eastern division of the territory north-west of the river ohio to form a constitution and state government, and for the admission of such state into the union, on an equal footing with the original states, and for other purposes. mr. fearing moved to amend the bill so as to embrace the population of the eastern division as bounded by the articles of the ordinance, the effect of which motion would be to include about thirty thousand inhabitants of that division, that are excluded by the provisions of the bill, and respecting whom it is provided in the bill, that they may hereafter be added by congress to the new state, or disposed of otherwise, as provided by the fifth article of the compact. this motion gave rise to a debate of considerable length, in which messrs. fearing, bayard, griswold, goddard, henderson, and randolph, supported; and messrs. giles, bacon, and r. williams, opposed the amendment. those who supported the amendment contended that the exclusion of that portion of territory occupied by about three thousand inhabitants was both unconstitutional and inexpedient. on the ground of constitutionality, they contended, that under the articles of the compact, which were to be considered as the constitution of the territory, congress had only the right of forming the eastern division into one, two, or three states; and that under this power, no right existed to form one part of the division into a state, and leave the remaining section in a territorial condition; that the rights of the whole of the inhabitants of the eastern division were equal, and if one part was, so also must the remaining part be, admitted to the privilege of a state. on the ground of expediency, it was contended that the situation of the excluded inhabitants would be peculiarly hard; that, if attached to the indiana territory, they would be placed two or three hundred miles from it; that they would be furthermore degraded from the second to the first branch of territorial government, and that they would be deprived, by the reduction of their numbers, from the prospect of being admitted for a great number of years, to state rights. on the contrary, the opponents of the amendment contended that the provisions of the bill were both constitutional and expedient; that under the compact the right was given to congress of admitting the eastern division into the union, in the form of one, two, or three states; that this right involved a discretion to admit a part of that division at one time, and the remaining part at a subsequent period; that if the whole division were once admitted into the union, congress would be prohibited from dividing hereafter, when it was acknowledged such division would be expedient, the said division into two or more states, without the consent of the state now formed. that, as to considerations of expediency, the hardships likely to be felt by the excluded inhabitants were such as arose, not from the provisions of the bill, but from their local situation; and that it was not true that they would be degraded by annexation to the indiana territory; to a lower grade of territorial character than they at present enjoyed--the grade being the same. mr. randolph supported the amendment on peculiar ground, declaring that if the amendment should not prevail, he would still vote for the admission. he declared himself in favor of the amendment, principally from a desire to avoid the introduction of too many small states into the union. the question was then taken on mr. fearing's amendment, and lost--yeas , nays . mr. fearing moved so to amend the bill as to leave to the new state the right of naming itself. agreed to. after some discussion of the details of the bill, the committee rose and repeated the bill, with amendments. _ordered_, that the said bill, with the amendments, do lie on the table. thursday, april . mr. john taliaferro, jun., from the committee to whom was referred, on the fifth instant, the petition of sundry citizens of georgetown, in the district of columbia, with instruction to report thereon by bill or otherwise, presented a bill to incorporate the directors of the columbian library company; which was read twice, and committed to a committee of the whole house on monday next. mr. dennis, from the committee to whom was referred, on the fifth of february last, a motion, in the form of two resolutions of the house, "respecting the adjustment of the existing disputes between the commissioners of the city of washington, and other persons who may conceive themselves injured by the several alterations made in the plan of the said city; also, relative to a plan of the said city of washington, conformably, as nearly as may be, to the original design thereof, with certain exceptions," made a report thereon; which was read, and ordered to be referred to a committee of the whole house on monday next. mr. john taliaferro, jun., from the committee appointed, presented a bill to incorporate the inhabitants of the city of washington, in the district of columbia; which was read twice and committed to a committee of the whole house on monday next. the speaker laid before the house a letter from the secretary of the treasury, enclosing a statement prepared by the register, of the application of the appropriations made by congress for clerk-hire, in the several offices of the treasury department, specifying the names of the persons, and the salaries allowed to each, for the three last years, in pursuance of a resolution of this house, of the twenty-fifth ultimo; which were read, and ordered to lie on the table. the speaker laid before the house a letter from the secretary of the treasury, accompanying two statements, marked a and b, relative to expenses incurred by the united states in the exercise of jurisdiction over the territory of columbia, since the assumption of jurisdiction by congress, prepared in pursuance of a resolution of this house of the first instant; which were read, and ordered to be referred to the committee appointed, on the eighth of december last, to inquire whether any, and, if any, what alterations or amendments may be necessary in the existing government and laws of the district of columbia. the house proceeded to consider the report of the select committee to whom were referred, on the fifth instant, the amendments of the senate to the bill, entitled "an act for revising and amending the acts concerning naturalization," which lay on the table: whereupon, _resolved_, that this house doth agree to the said amendments, with amendments, to the section proposed to be substituted by the senate in lieu of the first and second sections of the original bill. mr. nicholson, from the committee appointed on the second instant, presented a bill to abolish the board of commissioners in the city of washington, and to make provision for the repayment of loans made by the state of maryland for the use of the city; which was read twice and committed to a committee of the whole house on monday next. mr. nicholson, from the committee appointed, presented a bill to provide more effectually for the due application of public money, and for the accountability of persons intrusted therewith; which was read twice and committed to a committee of the whole house on monday next. the house resolved itself into a committee of the whole on the supplementary report of the committee on claims, of the seventh instant, to whom was recommitted, on the fifteenth ultimo, their report on the memorial of paul coulon, a french citizen; and after some time spent therein, the committee rose and reported a resolution, which was twice read, and agreed to by the house, as follows: _resolved_, that there be paid to paul coulon, as agent for the captors of the ship betty cathcart and brig aaron, prizes to the french privateer la bellone, out of any moneys in the treasury, not otherwise appropriated, the sum of six thousand two hundred and forty-one dollars and forty-four cents, being the amount retained by the treasury department, from the sales of the ship betty cathcart, and for duties on the cargo of the brig aaron. _ordered_, that a bill or bills be brought in, pursuant to the said resolution; and that the committee on claims do prepare and bring in the same. _north-western territory._ the house proceeded to consider the amendments reported yesterday from the committee of the whole to the bill to enable the people of the eastern division of the territory north-west of the river ohio to form a constitution and state government, and for the admission of such state into the union on an equal footing with the original states, and for other purposes, which lay on the table; and the same being severally twice read, were, on the question put thereupon, agreed to by the house. a motion was then made, further to amend the said bill, at the clerk's table, by striking out, in the sixth, seventh, eighth, ninth, and tenth lines of the second section thereof, the following words: "and on the north, by an east and west line, drawn through the southerly extreme of lake michigan, running east, after intersecting the due north line aforesaid, from the mouth of the great miami, until it shall intersect lake erie or"--and inserting in lieu thereof, the word "to." it passed in the negative--yeas , nays , as follows: yeas.--james a. bayard, thomas boude, manasseh cutler, john davenport, thomas t. davis, john dennis, ebenezer elmer, abiel foster, calvin goddard, roger griswold, william helms, joseph hemphill, archibald henderson, william h. hill, benjamin huger, thomas lowndes, lewis r. morris, james mott, thomas plater, nathan read, john cotton smith, john stanley, john stratton, samuel tenney, thomas tillinghast, lemuel williams, and henry woods. nays.--willis alston, john archer, john bacon, theodorus bailey, phanuel bishop, richard brent, robert brown, william butler, samuel j. cabell, thomas claiborne, matthew clay, john clopton, john condit, richard cutts, john dawson, william dickson, lucas elmendorph, william eustis, john fowler, william b. giles, john a. hanna, daniel heister, william hoge, james holland, david holmes, george jackson, charles johnson, samuel l. mitchill, thomas moore, anthony new, thomas newton, jr., joseph h. nicholson, john smilie, israel smith, john smith, (of virginia,) samuel smith, richard stanford, joseph stanton, jr., john taliaferro, jr., philip r. thompson, abram trigg, john trigg, isaac van horne, and robert williams. mr. john c. smith moved further to amend the bill, by striking out the third section thereof, in the words following, to wit: _and be it further enacted_, that all male citizens of the united states, who shall have arrived at full age, and resided within the said territory at least one year previous to the day of election, and shall have paid a territorial or county tax, and all persons having, in other respects, the legal qualifications to vote for representatives in the general assembly of the territory, be, and they are hereby, authorized to choose representatives to form a convention, who shall be apportioned amongst the several counties within the eastern division aforesaid, in a ratio of one representative to every ---- inhabitants of each county, according to the enumeration taken under the authority of the united states, as near as may be, that is to say: from the county of trumbull, ---- representatives; from the county of jefferson, ---- representatives, ---- of the ---- to be elected within what is now known by the county of belmont, taken from jefferson and washington counties; from the county of washington, ---- representatives; from the county of ross, ---- representatives, ---- of the ---- to be elected in what is now known by fairfield county, taken from ross and washington counties; from the county of adams, ---- representatives; from the county of hamilton, ---- representatives, ---- of the ---- to be elected in what is now known by clermont county, taken entirely from hamilton county: and the elections for the representatives aforesaid, shall take place on the second tuesday of october next, the time fixed by a law of the territory, entitled "an act to ascertain the number of free male inhabitants of the age of twenty-one, in the territory of the united states north-west of the river ohio, and to regulate the elections of representatives for the same," for electing representatives to the general assembly, and shall be held and conducted in the same manner as is provided by the aforesaid act, except that the qualifications of electors shall be as herein specified. the motion to strike out was supported by messrs. john c. smith, goddard, fearing, and henderson, and opposed by messrs. giles, mitchill, r. williams, elmer, and holland, on the ground that the right of the united states to admit necessarily involved the power of prescribing a convention. the yeas and nays were taken, and it passed in the negative--yeas , nays , as follows: yeas.--thomas boude, manasseh cutler, samuel w. dana, john davenport, abiel foster, calvin goddard, roger griswold, seth hastings, joseph hemphill, archibald henderson, benjamin huger, thomas lowndes, thomas morris, thomas plater, nathan read, william shepard, john cotton smith, john stratton, samuel tenney, thomas tillinghast, george b. upham, killian k. van rensselaer, peleg wadsworth, lemuel williams, and henry woods. nays.--willis alston, john archer, john bacon, phanuel bishop, richard brent, william butler, samuel j. cabell, thomas claiborne, john clopton, john condit, thomas t. davis, john dawson, william dickson, lucas elmendorph, ebenezer elmer, john fowler, william b. giles, edwin gray, john a. hanna, daniel heister, william helms, william hoge, james holland, david holmes, george jackson, charles johnson, samuel l. mitchill, thomas moore, james mott, anthony new, thomas newton, jr., joseph h. nicholson, john smilie, israel smith, john smith, (of virginia,) josiah smith, samuel smith, henry southard, richard stanford, joseph stanton, jr., john stewart, john taliaferro, jr., david thomas, philip r. thompson, abram trigg, john trigg, isaac van horne, and robert williams. mr. fearing said he was of opinion that some provision ought to be made for the inhabitants excluded from the new state, and the continuance of suits from the old to the new government; for these purposes he moved the recommitment of the bill. lost. mr. dana proposed so to amend the fourth section, as that a majority of the whole number of delegates elected in the convention, instead of a majority of those present, should first determine whether it be or be not expedient to form a constitution, &c. the yeas and nays were called, and the motion carried--yeas , nays , as follows: yeas.--thomas boude, william brent, john condit, manasseh cutler, samuel w. dana, john davenport, thomas t. davis, lucas elmendorph, ebenezer elmer, william eustis, abiel foster, john fowler, calvin goddard, edwin gray, roger griswold, john a. hanna, joseph hemphill, archibald henderson, william hoge, benjamin huger, lewis r. morris, thomas morris, james mott, thomas plater, nathan read, william shepard, john cotton smith, henry southard, richard stanford, joseph stanton, jr., john stewart, john stratton, samuel tenney, thomas tillinghast, john trigg, george b. upham, peleg wadsworth, and lemuel williams. nays.--willis alston, john archer, john bacon, robert brown, william butler, samuel j. cabell, thomas claiborne, matthew clay, john clopton, richard cutts, john dawson, william dickson, william b. giles, william helms, james holland, david holmes, george jackson, charles johnson, samuel l. mitchill, thomas moore, anthony new, thomas newton, jr., joseph h. nicholson, john smilie, israel smith, john smith, (of virginia,) samuel smith, john taliaferro, jr., david thomas, philip r. thompson, abram trigg, isaac van horne, and robert williams. the bill was then ordered to be engrossed for a third reading to-morrow. friday, april . a message from the senate informed the house that the senate have passed a bill, entitled "an act to amend the judicial system of the united states;" to which they desire the concurrence of this house. [the chief alterations made from the old system consist in the holding the supreme court only once a year by four justices, and the establishment of six circuits, within each district of which circuit courts are to be holden twice a year, composed of one justice of the supreme court and the judge of the district, in which said court is held.] the bill was read twice, and referred to a select committee. _ohio state government._ an engrossed bill to enable the people of the eastern division of the territory north-west of the river ohio to form a constitution and state government, and for the admission of such state into the union on an equal footing with the original states, and for other purposes, was read the third time, and the blanks therein filled up: and, on the question that the same do pass, it was resolved in the affirmative--yeas , nays , as follows: yeas.--willis alston, john archer, john bacon, theodorus bailey, phanuel bishop, richard brent, robert brown, william butler, samuel j. cabell, thomas claiborne, matthew clay, john clopton, john condit, thomas t. davis, john dawson, william dickson, lucas elmendorph, ebenezer elmer, william eustis, john fowler, william b. giles, william hoge, james holland, david holmes, george jackson, samuel l. mitchill, thomas moore, james mott, anthony new, thomas newton, jr., joseph h. nicholson, john smilie, israel smith, john smith, (of new york,) josiah smith, samuel smith, richard stanford, joseph stanton, jr., john stewart, john taliaferro, jr., david thomas, philip r. thompson, abram trigg, john trigg, john p. van ness, isaac van horne, and robert williams. nays.--thomas boude, john campbell, manasseh cutler, samuel w. dana, john davenport, john dennis, abiel foster, calvin goddard, roger griswold, william barry grove, seth hastings, joseph hemphill, archibald henderson, benjamin huger, thomas lowndes, lewis r. morris, thomas morris, thomas plater, nathan read, william shepard, john cotton smith, john stanley, john stratton, samuel tenney, thomas tillinghast, george b. upham, killian k. van rensselaer, lemuel williams, and henry woods. monday, april . an engrossed bill for the relief of theodosius fowler, was read the third time, and passed. the house went into committee of the whole on the bill for the relief of paul coulon, which was reported without amendment, and ordered to be engrossed and read the third time to-day. mr. s. smith, from the committee appointed, presented a bill for the relief of lewis tousard; which was read twice and committed to the committee of the whole for to-morrow. mr. clay, from the committee appointed on the seventh instant, to examine and report on the state of the office of the clerk of this house, made a report: which was read, and ordered to lie on the table. the house resolved itself into a committee of the whole on the bill to provide for the establishment of certain districts, and therein to amend an act, entitled "an act to regulate the collection of duties on imports and tonnage," and for other purposes; and, after some time spent therein, the committee rose and reported several amendments thereto; which were severally twice read, and agreed to by the house. _ordered_, that the said bill, with the amendments, be engrossed, and read the third time to-morrow. the house resolved itself into a committee of the whole on the report of the secretary of state, of the seventh instant, to whom was referred, on the nineteenth of january last, the memorial of fulwar skipwith; and after some time spent therein, the committee rose and reported two resolutions thereupon; which were severally twice read and agreed to by the house, as follows: _resolved_, that provision ought to be made by law, for the payment of four thousand five hundred and fifty dollars, unto fulwar skipwith, (which sum was advanced by him to the united states,) with an interest of ---- per centum, from the first of november, one thousand seven hundred and ninety-five. _resolved_, that provision ought to be made by law, for compensating the said fulwar skipwith, for his services from the first of november, one thousand seven hundred and ninety-six, to the first of may, one thousand seven hundred and ninety-nine, at the rate of ---- dollars, per annum. _ordered_, that a bill or bills be brought in pursuant to the said resolutions; and that mr. dawson, mr. van cortlandt, and mr. stanton, do prepare and bring in the same. the house then went into committee of the whole on the report of the committee of the twenty-second of january, on the petition of sarah fletcher and jane ingraham, referred to them on the tenth of december last, and, after some time spent therein, the committee rose and reported several resolutions thereupon; which were severally twice read, and agreed to by the house, as follows: _resolved_, that it is expedient to grant to the widows and children, as the case may be, of the officers, seamen, and marines, who were lost at sea, on board the ship insurgent and brigantine pickering, lately in the service of the united states, four months' pay of their respective husbands or fathers. _resolved_, that it is expedient to provide by law for the payment of five years' half pay to the widows and children, as the case may be, of such officers in the naval service of the united states as shall be slain in battle, or die, when in the actual line of their duty. _resolved_, that the widows and children of those officers who were lost at sea in the ship insurgent and brigantine pickering, shall be entitled to this provision. _ordered_, that a bill or bills be brought in pursuant to the said resolutions; and that mr. eustis, mr. goddard, and mr. stanton, do prepare and bring in the same. an engrossed bill for the relief of paul coulon was read the third time and passed. mr. s. smith, from the committee appointed the ninth instant, on the part of this house, jointly, with the committee appointed on the part of the senate, "to consider and report what business is necessary to be done by congress in their present session, and when it may be expedient to close the same," made a report thereon; which was read, and ordered to lie on the table. the house went into committee of the whole on the bill for the relief of sick and disabled seamen. mr. eustis moved to strike out the first section which forms the moneys devoted to the above object into a general fund, to be applied according to the discretion of the president, instead of suffering it to remain, as heretofore, applied to the particular ports, (or those in the vicinity,) from which the moneys are derived. this motion was supported by messrs. eustis, mitchill, and dana, and opposed by messrs. s. smith, milledge, davis, macon, and huger. the question was then taken on striking out the first section, and lost; when the committee rose, and reported the bill with amendments. monday, april . _navy pensions._ an engrossed bill for the relief of widows and orphans of certain persons who have died, or may hereafter die, in the naval service of the united states, was read the third time; and, on the question that the same do pass, it was resolved in the affirmative--yeas , nays . _compensation of collectors._ the house went into committee of the whole on the bill to amend the act fixing the compensation of officers employed in the collection of duties on imposts and tonnage. this bill allows certain compensations to collectors of ports, provided the clear annual receipt does not exceed $ , . a motion was made to strike out $ , , for the purpose of introducing $ , . it was contended that this latter sum was sufficient compensation to any collector; that it greatly exceeded most of the compensations allowed to the federal officers; and that as money was appreciating, it became necessary to reduce the salaries of officers generally. in reply it was observed that very few collectors would receive so large a sum as $ , --none other than those of new york, philadelphia, baltimore, and perhaps charleston; that the responsibility attached to these officers was greater than that attached to any other, as in some instances two million of dollars passed through their hands; that the temptation to violate duty was proportionably great; and that, from these considerations, it became the government to afford them a liberal compensation; and that the sum was considerably below that heretofore allowed. the question was taken on striking out $ , , and lost--yeas . mr. stanley moved to strike out that part of the bill which deducted from the compensations made to the collectors of newbern and edenton, the sum of $ , heretofore allowed beyond their fees. for this motion he assigned several reasons: among which were the inadequacy of the compensations, viz: about $ , to the duties performed, which were, notwithstanding the small amount of duties, very burdensome, owing to the smallness of the cargoes imported, and theirs being greatly inferior to the compensations allowed to the collectors of wilmington and petersburg. mr. s. smith informed the committee that the principle on which the several compensations had been graduated was, that when the gross emoluments exceed $ , , the salary heretofore allowed by law, in addition to the emoluments, should be withdrawn. this was the fact in relation to the ports of newbern and edenton; and as the duties in each of these ports did not exceed $ , , the compensation seemed adequate; he was, however, far from being tenacious, and would have little objection to a vote of the house which should increase it. motion lost--yeas . the committee rose, and reported the bill without amendment. mr. southard renewed the motion to strike out $ , , for the purpose of inserting $ , , (the same motion made in committee,) and assigned substantially the same reasons above stated. messrs. stanley, bacon, and smilie, delivered a few observations for, and mr. huger against the motion, which was taken by yeas and nays, on the call of mr. southard, and lost--yeas , nays . thursday, april . _french spoliations._ mr. giles, from the committee appointed on the fifth of february last, to whom were referred the memorials and petitions of sundry citizens of the united states, and resident merchants therein, praying relief in the case of depredations committed on their vessels and cargoes, while in pursuit of lawful commerce, by the cruisers of the french republic, during the late european war, made a report thereon; which was read, and ordered to lie on the table. friday, april . _judiciary system._ the question was then put on the passage of the bill. mr. bayard called for the yeas and nays, which were taken, and stood--yeas , nays , as follows: yeas.--willis alston, john archer, john bacon, theodorus bailey, phanuel bishop, walter bowie, richard brent, robert brown, william butler, thomas claiborne, matthew clay, john clopton, john condit, richard cutts, john dawson, william dickson, lucas elmendorph, john fowler, william b. giles, edwin gray, john a. hanna, daniel heister, william helms, james holland, david holmes, michael leib, john milledge, anthony new, joseph h. nicholson, john smilie, israel smith, john smith, (of new york,) john smith, (of virginia,) samuel smith, henry southard, richard stanford, joseph stanton, jr., john stewart, john taliaferro, jr., philip r. thompson, abram trigg, john trigg, philip van cortlandt, john p. van ness, isaac van horne, and robert williams. nays.--james a. bayard, thomas boude, john campbell, manasseh cutler, samuel w. dana, john davenport, thomas t. davis, john dennis, ebenezer elmer, abiel foster, calvin goddard, roger griswold, seth hastings, archibald henderson, thomas lowndes, lewis r. morris, thomas morris, james mott, thomas plater, nathan read, john stanley, john stratton, benjamin tallmadge, samuel tenney, thomas tillinghast, george p. upham, peleg wadsworth, lemuel williams, and henry woods. tuesday, april . _naval sites._ unauthorized purchases. mr. mitchill, from the committee appointed on so much of the president's message as relates to naval sites, &c., made a further report. the report concludes as follows: "the committee find that, prior to the fourth of march, , the sum of one hundred and ninety-nine thousand and thirty dollars, and ninety-two cents, has been expended in purchasing navy yards and making improvements upon them, without any law authorizing the purchase, or any appropriation of money, either for purchase or improvements." wednesday, april . _sedition act._ petition of thomas cooper. a petition of thomas cooper, of the county of northumberland, in the state of pennsylvania, was presented to the house and read, setting forth that, in the month of april, eighteen hundred, he was tried and condemned at philadelphia, before samuel chase and richard peters, judges of the circuit court of the united states there sitting, for having written and published a libel upon the political character and conduct of john adams, the then president of the united states; and was thereupon adjudged to pay a fine of four hundred dollars, and to suffer an imprisonment of six months; which punishment he accordingly underwent; that he apprehends the said trial, condemnation, and punishment, were unjust: first, because the law, commonly called the sedition law, under which he was indicted, was passed in direct opposition to the letter and the spirit of the constitution of the united states; and secondly, because the said judges did not only take for granted the constitutionality of the said law, but did unjustly and improperly refuse to grant him a _subpoena ad testificandum_, directed to the said john adams; and therefore praying such redress as the wisdom of congress shall deign to bestow. mr. griswold moved to reject the prayer of the petition. mr. giles moved to postpone the consideration of the petition till the third monday in november. on this motion a debate ensued, in which mr. giles and mr. randolph supported, and mr. griswold and mr. bayard opposed the motion. the question on postponement was carried, by a large majority. saturday, may . _disbursement of public moneys._ unauthorized purchase of navy yards. mr. griswold.--again, the committee say that four navy yards were purchased without authority, and the money misapplied which was paid for them. in my judgment, this is one of the most extraordinary opinions ever pronounced. the facts which gave rise to the purchase of the navy yards were as follows: in the year , congress authorized by law the building of six -gun ships, and one million of dollars was then appropriated for that object, and for building six sloops-of-war. the secretary of the treasury found that the committee ought to have understood that ships could not be built either in the air or upon the water, and as he was directed to build the ships, that he must, of course, procure land to place them upon, and that the land must be either purchased or hired. he found that there was not a navy yard within the united states calculated for building ships-of-the-line, and that the expense of preparing yards upon private property would be lost the moment the ship was launched, and of course that this would be bad economy. experience had likewise taught him, that the better mode would be to purchase the ground, as it would then remain at the control of the government, so long as it was wanted, and the improvements would be saved. this course was accordingly pursued, and i believe that few gentlemen, except the committee, will conclude that it was not the wisest and best. but whether it was the best course or not, it was certainly authorized by law, because it can never be seriously doubted, whether a law which directs a thing to be done, does authorize the agents to be employed to do every thing which becomes necessary for accomplishing the object. the laws which have authorized the building of ships have certainly empowered the public agents to purchase timber, copper, cordage, and every other necessary material, and yet no law for those objects has ever named any one of those articles. on the same principle, the law which directed the building of these particular ships, necessarily authorized the public agent to procure the ground to place them upon, although it was not said, whether the ships should be built upon the water or upon the land. but there has been one omission in this part of the report, which, on every principle of fairness ought to be connected with it, and for which purpose the report ought to be recommitted: the omission of the letter of mr. stoddert, late secretary of the navy, explanatory of the purchase made by him of the navy yards, addressed to the committee, in answer to an application made by them upon this subject. this letter contains, in my opinion, a complete justification of that transaction, and was so viewed by the minority of the committee, who urged that it might, at least, be included in the report; but, to our astonishment, the minority refused this justice to the man whom their report had implicated. this opinion of the majority, in respect to the propriety of including mr. stoddert's letter, i must believe, will remain a solitary one, for i can scarcely imagine it possible that any other gentleman in this house would have refused, when they presented a charge against this gentleman with one hand, to offer with the other his vindication, written at their own request. if, however, the motion to recommit should prevail, i will then move an instruction to the committee, which will produce mr. stoddert's letter. what renders the report of the committee still more extraordinary, both in respect to erecting the buildings, and also the purchase of navy yards, is, that another subject, resembling these in principle, was before the committee, and on which they refused to report. this was the erecting of the extensive navy stores in this place by the present administration. the present secretary of the navy was requested to inform the committee when those stores were erected, and from what fund the money had been taken. his answer satisfied the committee that the stores had been erected by the present administration, and that the money, if i recollect correctly, had been taken from an appropriation for the 's, navy yards, and docks. the minority of the committee believed, what i trust will be generally believed by those who examine the question, that this was (to say no more of it) at least as doubtful an expenditure as that for the purchase of navy yards, or for erecting the buildings on the schuylkill. if an authority to build 's, to complete navy yards and docks, gave an authority to erect stores for the accommodation of the navy, it was thought that an authority to build ships, necessarily included a power to procure the land to place them upon; and that an authority to purchase military stores and to manage the affairs of the army necessarily included a power to furnish, at the public expense, buildings to cover the stores, and for other necessary military purposes, at the discretion of the officers intrusted with those concerns. the minority of the committee, therefore, urged to include this transaction in the report, together with the letter of the secretary of the navy, but the request was rejected by the majority. we believed that the cases were precisely similar in principle, and that it was not conducting with impartiality to include the one without the other; and we have thought that when it was discovered that the present administration was conducting on principles precisely similar to those of their predecessors, it would greatly tend to satisfy all parties that the conduct of the government had been correct. i feel no hesitation in declaring that, in my judgment, the present administration were authorized to erect the navy stores, although i believe that the power may be better questioned than it could be in the other cases. these navy stores, i presume, are useful both for receiving the necessary materials for ship building, and securing the stores of the public ships laid up in ordinary; and although not expressly authorized by the words of the law, may very well be considered as a proper appendage to a navy yard, or as buildings rendered necessary in the finishing of the 's; and as to the extent of the buildings, i am content to leave that point to the department to which it has been confided. the propriety, however, of including this statement in the report (i trust) will be apparent to the house, and it will not in this place be thought correct to confine our criticisms exclusively to the past administration. i therefore urge this as a further reason for recommitting the report. mr. nicholson had very little inclination, at this time, to enter into an explanation of this subject, which had been so misunderstood by the gentleman just up, on account of indisposition, nor was he very anxiously opposed to the recommitment, but he could perceive not a shadow of reason why the report should be recommitted. the gentleman had grounded his motion upon the opinion, that all the necessary facts had not been stated. it was, to be sure, a very late period of the session, and the discussion would therefore consume much precious time; but notwithstanding that, if it should appear that any material facts had been suppressed, there would be good ground for recommitting the report. he should therefore think it necessary to test the grounds advanced, to prove the necessity of the recommitment. as to the navy yards, the committee having been appointed "to report whether moneys drawn from the treasury have been faithfully applied to the objects for which they were appropriated, and whether the same have been regularly accounted for;" and knowing that six navy yards had been purchased, very naturally inquired under what authority these purchases had been made, and how they were paid for. they referred to the law authorizing the building of six seventy-fours and six sloops-of-war. the committee submitted an inquiry to the former secretary of the navy, (mr. stoddert,) directing him to inform the committee as to the purchase. mr. stoddert answered that a law had passed, appropriating one million of dollars for building the seventy-fours and sloops-of-war, and that fifty thousand dollars were also appropriated for two dock-yards; and also that two hundred thousand dollars were appropriated for the purchase of timber, or land clothed therewith; and that he thought himself authorized to purchase six navy yards, wherein to build the seventy-fours. to these several laws the committee referred for the authority under which the secretary acted, but they could find no such authority; they could find no other, than authority to purchase two dock-yards, wherein to repair the ships. now, although not stated in the report, there is very good reason to believe that the fifty thousand dollars never was laid out upon the two dock-yards, but that this sum was cast into the surplus fund. whether mr. stoddert's opinion was correct or not, that it would be more economical to build the seventy-fours in public yards, than in private yards at rent, they were not appointed to inquire; it was their business to say whether he was authorized to act so, let his private opinion be what it might. the committee were clearly of opinion, that he was not authorized to take money appropriated for one purpose and make use of it for another. as to the reason, why the gentleman wishes the report recommitted; to wit, to insert mr. stoddert's answer with the report; it is true a motion for the insertion was made. but the committee thought that letter was addressed to them, and not to the house; that it was to inform their minds, so as to enable them to make the report. they paid due attention to the reasoning of the letter, but it did not convince them that mr. s. acted authoritatively. mr. stoddert's reasoning upon the subject could not form a part of the report; the committee were called upon to form an opinion, and not to substitute that of any individual. they were to inquire whether moneys appropriated were used to the purposes for which they were appropriated. they thought it was not, because it was appropriated to build ships, and to purchase land with timber on it, or timber alone. the question then is, whether six navy yards are six seventy-four gun ships, and whether six sloops-of-war are lands with timber growing on it or not? if mr. stoddert's reasoning had been adopted by the committee, it would have become their reasoning, and except it should be theirs, it would have had no business in the report. if a disposition of vindication could have been admitted, mr. stoddert might have been permitted to have appeared with counsel before the committee, but facts alone were required, and facts the committee state. ships had been built for the public before, but the idea never was entertained to build docks for them. no measure different from those taken in the building of the frigates, except by legal authority, ought to have been taken with the seventy-fours. the case of the navy yard at this place was brought before the committee. it was the request of the minority that the case should be inquired into. the committee sent to request the secretary of the navy to say by what authority the storehouse had been erected here, or from what fund it was paid. the answer was, that the storehouse had been erected out of a fund granted in february, eighteen hundred and one, for completing the seventy-fours, the navy yards, and the docks. the ships had been ordered to be laid up in ordinary at this place, and the navy yard purchased. when the present secretary of the navy came into office, he found, that as a navy yard was to be completed here, and as sails, rigging, and other naval stores, must be kept here; and finding that one storehouse was already built, and another begun, here, it would be most prudent to complete that storehouse, as a necessary appendage to a navy yard where shipping would be sent for repairs. to this none of the gentlemen objected, but rather approved; and this is surely a purpose to which the money was appropriated. whether the other applications are or not, is for the house to decide. the committee have stated the facts. the gentleman says the accountant of the war department was satisfied with the accounts of general wilkins. i did not understand the fact so--vouchers were sent on, but they were not satisfactory. mr. bayard.--i shall beg the indulgence only of a few words, upon one or two heads, respecting which, the opinion i entertain is decidedly opposed to that expressed by a majority of the committee. i cannot well conceive of a plainer mistake, than what appears in the opinion, pronounced on the purchase of six navy yards, made by the late secretary of the navy. the committee, i think, ought to be allowed an opportunity of reviewing that opinion. four of those six yards are considered as purchased without authority, and the money paid for them misapplied. by the act of the legislature, of february, , the secretary of the navy was directed to cause to be built six ships, each to carry not less than seventy-four guns; and six sloops-of-war of eighteen guns. for this purpose, a million of dollars was appropriated; two hundred thousand were appropriated to the purchase of land, bearing timber suitable for the navy, and fifty thousand dollars for the making of two docks. these laws, passed on successive days, indicated the design of a permanent navy establishment. it was perfectly understood that the ships of the line were not directed to be built for the occasional defence of the country at that period, but were intended as the commencement of a lasting system of defence, which was expected to increase with the growth of the commerce and resources of the country. it was far from our expectation that the navy of the united states was to be limited to six ships of the line, or to any number within the convenient means of the country, short of a force adequate to render our flag respectable and our navigation secure. it was not supposed that the seventy-fours would be launched for several years, but we had hopes when they left the stocks, a flourishing commerce would enable us to lay the keels of new ships in their places. under this view were the two hundred thousand dollars appropriated, to the purchase of land producing timber fit for a navy. with this knowledge, so plainly derivable from the policy pursued by the legislature, what was the secretary of the navy to do? it was made his duty to build six seventy-fours and six sloops-of-war. it is surely not expected that they were to be built on the water or in the air, and of consequence it will be allowed that he had authority to provide yards, for the purpose of constructing them. the public had no yards, and it was therefore necessary to obtain ground from individuals. as there were no persons disposed to make charitable grants, it remained only for the united states to purchase ground in fee simple, or for a term of years, paying a gross sum or an annual rent. the act of congress, directing the ships to be built, appropriated not a dollar either for the renting or for the purchase of land. but a million of dollars were appropriated to the building of the ships, which was directed to be done, but which could not be done without an expenditure for land. can there be a plainer proposition, than that an appropriation for a certain service, embraces every article without which the service cannot be performed? in the present instance, the service imposed upon the secretary, could not be performed without obtaining navy yards at the public expense. it therefore rested in his discretion, for the faithful exercise of which he was accountable to the government, either to purchase or rent the ground, necessary for the yards. it was his duty to conform to the views of the legislature, and to make such an arrangement as would be most advantageous to the public. if it answered the object, and was most for the interest of the government to rent, then surely he ought to have rented it; but if it comported more with their views, or was more to their benefit to purchase, it was then his duty to purchase. this inquiry, however, was never made by the committee. they never asked the question whether it was cheaper to buy or to rent, and they have condemned the secretary for buying and not renting, when he had no more authority to rent than to buy, and when by buying he has probably saved to the united states several hundred thousand dollars. the situation of this officer is peculiarly hard. having been directed to build a number of ships for the public service, he has purchased navy yards for the purpose, and in consequence has subjected himself to the accusation of expending public money without authority. if he had rented land for the purpose, he would have been equally liable to the same reproach; and if he had neglected to do either, he would have been exposed to an impeachment. the secretary has it fully in his power to show, that his purchases will save a large sum of money to the united states. a navy yard, for a seventy-four, cannot be prepared without great expense. under this head, i am informed by the secretary, that one hundred thousand dollars were expended on one frigate, the constellation. this was occasioned in a great degree by leasing the yard. at the expiration of the lease, the public lose the benefit of all their expense in preparing and improving the ground. in addition to the inference which the secretary might fairly make, of an authority to purchase ground for the navy yards, if a purchase could be made on cheaper terms than a contract of lease, he had further to consider the intention, plainly manifested by the legislature, of establishing a system which would require the use of these navy yards at a future time, beyond the duration of any common lease. nay, he knew not what time was to be consumed in building the ships directed, and of course could not know for what term a contract could be made. at present, if the government should be disposed to sell the ships on the stocks, they have the power to sell the navy yards, and they will have the same power when the ships are launched; and they may thus convert in effect the permanent purchase into a term for years, and restore to the treasury the money which has been expended. but, sir, what i consider as the hardest act on the part of the majority of the committee, was their refusal to suffer the answer of the secretary to the letter we addressed to him, explaining the grounds of his conduct, to accompany the documents annexed to the report. we have been told by the gentleman from maryland (mr. nicholson) that it was not the business of the committee to report the opinions of the secretary, or of any other individual. if this be correct, i believe it was as little the business of the committee to report their own opinions. they should have confined themselves to the statement of facts, and upon those facts have left the house and the nation at large to form their own opinions. if this course had been pursued, there would have been little occasion to publish the reasoning of mr. stoddert; but, as the opinion of the committee is merely their inference from certain premises, it was due to the public, as well as to the secretary, that the grounds should be explained which had led him to a different conclusion from that adopted by the committee. this report seems, at present, intended only for public information; certainly i must believe to give correct information. the letter of mr. stoddert throws great light upon a part of it, and when our object is only to inform the people on a subject, why should we refuse any light which places it more clearly before their eyes? monday, o'clock p. m., may . _adjournment._ on motion, _ordered_, that mr. griswold and mr. samuel smith be appointed a committee, on the part of this house, jointly, with such committee as may be appointed on the part of the senate, to wait on the president of the united states, and notify him of the proposed recess of congress. a message from the senate informed the house that the senate have appointed a committee on their part, jointly, with the committee appointed on the part of this house, to wait on the president of the united states, and notify him of the proposed recess of congress. mr. griswold, from the committee appointed on the part of this house, jointly, with the committee appointed on the part of the senate, to wait on the president of the united states, and notify him of the proposed recess of congress, reported that the committee had performed that service; and that the president signified to them he had no farther communication to make during the present session. _ordered_, that a message be sent to the senate, to inform them that this house, having completed the business before them, are now about to adjourn until the first monday in december next; and that the clerk of this house do go with the said message. a message from the senate informed the house that the senate, having completed the legislative business before them, are now ready to adjourn. whereupon, the speaker adjourned the house until the first monday in december next. seventh congress.--second session. begun at the city of washington, december , . proceedings in the senate. monday, december , . in pursuance of the law of last session, the second session of the seventh congress commenced this day, at the city of washington, and the senate assembled, in their chamber, at the capitol. present: simeon olcott, from new hampshire. uriah tracy, from connecticut. christopher ellery, from rhode island. stephen r. bradley, from vermont. samuel white, from delaware. robert wright, from maryland. abraham baldwin, from georgia. william plumer, appointed a senator by the state of new hampshire, to supply the vacancy occasioned by the resignation of james sheafe, produced his credentials, and took his seat in the senate. the number of members assembled not being sufficient to form a quorum, the senate adjourned. tuesday, december . mr. breckenridge, from kentucky; mr. foster, from rhode island; mr. howard, from maryland; and mr. logan, from pennsylvania, severally attended. there being no quorum, the senate adjourned. wednesday, december . the number of members assembled not being sufficient to constitute a quorum, the senate adjourned. thursday, december . the number of members assembled not being sufficient to constitute a quorum, the senate adjourned. friday, december . mr. s. t. mason, from virginia, attended. the number of members assembled not being sufficient to constitute a quorum, the senate adjourned. saturday, december . mr. franklin, from north carolina, attended. the number of members assembled not being sufficient to constitute a quorum, the senate adjourned. monday, december . mr. j. mason, from massachusetts; mr. dayton, and mr. ogden, from new jersey; and mr. sumter, from south carolina, severally attended. the vice president being absent, the senate proceeded to the choice of a president, _pro tempore_, as the constitution provides, and the ballots being collected and counted, the whole number was found to be , of which make a majority. mr. bradley had , mr. tracy had , mr. baldwin , mr. dayton , mr. logan . there was consequently no choice. whereupon, the senate proceeded to the election of a president, _pro tempore_, as the constitution provides, and the ballots being collected and counted, the whole number was found to be , of which make a majority. mr. bradley had , mr. tracy , mr. dayton , mr. logan . there was consequently no choice. whereupon the senate proceeded to the election of a president _pro tempore_, as the constitution provides, and the ballots being counted, the whole number was found to be , of which make a majority. mr. bradley had , mr. tracy , mr. dayton , mr. logan . there was consequently no choice. whereupon, the senate proceeded to the election of a president, _pro tempore_, as the constitution provides, and the ballots being counted, the whole number of votes was , of which make a majority. mr. tracy had , mr. bradley , mr. dayton , mr. logan . there was consequently no choice; and the senate adjourned. tuesday, december . the vice president being absent, the senate proceeded to the choice of a president, _pro tempore_, as the constitution provides, and the ballots being collected and counted, the whole number was found to be , of which make a majority. mr. bradley had , mr. tracy , mr. dayton . consequently, stephen r. bradley was elected president of the senate, _pro tempore_. the credentials of mr. plumer, appointed a senator by the state of new hampshire, to supply a vacancy occasioned by the resignation of james sheafe, esq., were read; and the oath prescribed by law was administered to him by the president. _ordered_, that the secretary wait on the president of the united states, and acquaint him that a quorum of the senate is assembled, and that, in the absence of the vice president, they have elected stephen r. bradley, president of the senate, _pro tempore_. a similar notice was directed to be given to the house of representatives, and also that the senate are ready to proceed to business. on motion, it was agreed to proceed to the choice of a chaplain on the part of the senate, and the ballots having been collected and counted, the whole number was , of which is the majority. doctor gantt had , mr. m'cormick , mr. priestley , mr. balch . so it was _resolved_, that the rev. dr. gantt be the chaplain to congress, on the part of the senate, during the present session. wednesday, december . the following message was received from the president of the united states: _to the senate and house of representatives of the united states_: when we assemble together, fellow-citizens, to consider the state of our beloved country, our just attentions are first drawn to those pleasing circumstances which mark the goodness of that being from whose favor they flow, and the large measure of thankfulness we owe for his bounty. another year has come around, and finds us still blessed with peace and friendship abroad; law, order, and religion, at home; good affection and harmony with our indian neighbors; our burdens lightened, yet our income sufficient for the public wants, and the produce of the year great beyond example. these, fellow-citizens, are the circumstances under which we meet: and we remark, with special satisfaction, those which, under the smiles of providence, result from the skill, industry, and order of our citizens, managing their own affairs in their own way, and for their own use, unembarrassed by too much regulation, unoppressed by fiscal exactions. on the restoration of peace in europe, that portion of the general carrying trade which had fallen to our share during the war, was abridged by the returning competition of the belligerent powers. this was to be expected, and was just. but, in addition, we find in some parts of europe monopolizing discriminations, which, in the form of duties, tend effectually to prohibit the carrying thither our own produce in our own vessels. from existing amities, and a spirit of justice, it is hoped that friendly discussion will produce a fair and adequate reciprocity. but should false calculations of interest defeat our hope, it rests with the legislature to decide whether they will meet inequalities abroad with countervailing inequalities at home, or provide for the evil in any other way. it is with satisfaction i lay before you an act of the british parliament anticipating this subject so far as to authorize a mutual abolition of the duties and countervailing duties, permitted under the treaty of . it shows, on their part, a spirit of justice and friendly accommodation, which it is our duty and our interest to cultivate with all nations. whether this would produce a due equality in the navigation between the two countries is a subject for your consideration. another circumstance which claims attention, as directly affecting the very source of our navigation, is the defect or the evasion of the law providing for the return of seamen, and particularly of those belonging to vessels sold abroad. numbers of them, discharged in foreign ports, have been thrown on the hands of our consuls, who, to rescue them from the dangers into which their distresses might plunge them, and save them to their country, have found it necessary, in some cases, to return them at the public charge. the cession of the spanish province of louisiana to france, which took place in the course of the late war, will, if carried into effect, make a change in the aspect of our foreign relations, which will doubtless have just weight in any deliberations of the legislature connected with that subject. there was reason, not long since, to apprehend that the warfare in which we were engaged with tripoli might be taken up by some other of the barbary powers. a reinforcement, therefore, was immediately ordered to the vessels already there. subsequent information, however, has removed these apprehensions for the present. to secure our commerce in that sea with the smallest force competent, we have supposed it best to watch strictly the harbor of tripoli. still, however, the shallowness of their coast, and the want of smaller vessels on our part, has permitted some cruisers to escape unobserved; and to one of these an american vessel unfortunately fell a prey. the captain, one american seaman, and two others of color, remain prisoners with them; unless exchanged under an agreement formerly made with the bashaw, to whom, on the faith of that, some of his captive subjects had been restored. the convention with the state of georgia has been ratified by their legislature, and a repurchase from the creeks has been consequently made of a part of the tallassee country. in this purchase has been also comprehended a part of the lands within the fork of oconee and ocmulgee rivers. the particulars of the contract will be laid before congress so soon as they shall be in a state for communication. in order to remove every ground of difference possible with our indian neighbors, i have proceeded in the work of settling with them and marking the boundaries between us. that with the choctaw nation is fixed in one part, and will be through the whole within a short time. the country to which their title had been extinguished before the revolution is sufficient to receive a very respectable population, which congress will probably see the expediency of encouraging so soon as the limits shall be declared. we are to view this position as an outpost of the united states, surrounded by strong neighbors, and distant from its support. and how far that monopoly which prevents population should here be guarded against, and actual habitation made a condition of the continuance of title, will be for your consideration. a prompt settlement, too, of all existing rights and claims within this territory presents itself as a preliminary operation. in that part of the indiana territory which includes vincennes, the lines settled with the neighboring tribes fix the extinction of their title at a breadth of twenty-four leagues from east to west, and about the same length, parallel with and including the wabash. they have also ceded a tract of four miles square, including the salt springs, near the mouth of that river. in the department of finance it is with pleasure i inform you that the receipts of external duties for the last twelve months have exceeded those of any former year, and that the ratio of increase has been also greater than usual. this has enabled us to answer all the regular exigencies of government, to pay from the treasury within one year upwards of eight millions of dollars, principal and interest, of the public debt, exclusive of upwards of one million paid by the sale of bank stock, and making in the whole a reduction of nearly five millions and a half of principal, and to have now in the treasury four millions and a half of dollars, which are in a course of application to the further discharge of debt and current demands. experience, too, so far, authorizes us to believe, if no extraordinary event supervenes, and the expenses which will be actually incurred shall not be greater than were contemplated by congress at their last session, that we shall not be disappointed in the expectations then formed. but, nevertheless, as the effect of peace on the amount of duties is not yet fully ascertained, it is the more necessary to practise every useful economy, and to incur no expense which may be avoided without prejudice. no change being deemed necessary in our military establishment, an estimate of its expenses for the ensuing year, on its present footing, as also of the sums to be employed in fortifications, and other objects within that department, has been prepared by the secretary of war, and will make a part of the general estimates which will be presented to you. considering that our regular troops are employed for local purposes, and that the militia is our general reliance for great and sudden emergencies, you will doubtless think this institution worthy of a review, and give it those improvements of which you find it susceptible. estimates for the naval department, prepared by the secretary of the navy, for another year, will, in like manner, be communicated with the general estimates. a small force in the mediterranean will still be necessary to restrain the tripoline cruisers; and the uncertain tenure of peace with some other of the barbary powers may eventually require that force to be augmented. the necessity of procuring some smaller vessels for that service will raise the estimate; but the difference in their maintenance will soon make it a measure of economy. presuming it will be deemed expedient to expend annually a convenient sum towards providing the naval defence which our situation may require, i cannot but recommend that the first appropriations for that purpose may go to the saving what we already possess. no cares, no attentions, can preserve vessels from rapid decay, which lie in water and exposed to the sun. these decays require great and constant repairs, and will consume, if continued, a great portion of the moneys destined to naval purposes. to avoid this waste of our resources, it is proposed to add to our navy yard here a dock, within which our present vessels may be laid up dry, and under cover from the sun. under these circumstances, experience proves that works of wood will remain scarcely at all affected by time. the great abundance of running water which this situation possesses, at heights far above the level of the tide, if employed as is practised for lock navigation, furnishes the means for raising and laying up our vessels on a dry and sheltered bed. and should the measure be found useful here, similar depositories for laying up, as well as for building and repairing vessels, may hereafter be undertaken at other navy yards offering the same means. the plans and estimates of the work, prepared by a person of skill and experience, will be presented to you without delay; and from this it will be seen that scarcely more than has been the cost of one vessel is necessary to save the whole, and that the annual sum to be employed towards its completion may be adapted to the views of the legislature as to naval expenditure. to cultivate peace, and maintain commerce and navigation in all their lawful enterprises; to foster our fisheries as nurseries of navigation and for the nurture of man, and protect the manufactures adapted to our circumstances; to preserve the faith of the nation by an exact discharge of its debts and contracts, expend the public money with the same care and economy we would practise with our own, and impose on our citizens no unnecessary burdens; to keep, in all things, within the pale of our constitutional powers, and cherish the federal union as the only rock of safety; these, fellow-citizens, are the landmarks by which we are to guide ourselves in all our proceedings. by continuing to make these the rule of our action, we shall endear to our countrymen the true principles of their constitution, and promote a union of sentiment and of action, equally auspicious to their happiness and safety. on my part you may count on a cordial concurrence in every measure for the public good; and on all the information i possess which may enable you to discharge to advantage the high functions with which you are invested by your country. th. jefferson. december , . the message and papers therein referred to were read; and _ordered_, that five hundred copies of the message of the president of the united states, together with one hundred copies of each of the papers referred to in the message, be printed for the use of the senate. a message from the house of representatives informed the senate that the house have elected the reverend william parkinson a chaplain to congress, on their part. wednesday, december . dwight foster, from the state of massachusetts, attended. thursday, december . mr. morris, from the state of new york, attended. monday, december . mr. hillhouse, from the state of connecticut, attended. thursday, december . mr. anderson, and mr. cocke, from the state of tennessee, severally attended. monday, january , . mr. nicholas, from the state of virginia, and mr. wells, from the state of delaware, attended. friday, january . mr. stone, from north carolina, attended. the president communicated a letter signed t. worthington, agent for the state of ohio, enclosing a copy of the constitution of the said state, and requesting it might be laid before the senate; and they were read, and ordered to lie for consideration. the senate resumed the consideration of the motion made on the th instant for extending the laws of the united states to the state of ohio, together with the amendment proposed thereon; which amendment was withdrawn; and it was agreed to adopt the motion, amended as follows: _resolved_, that a committee be appointed to inquire whether any, and, if any, what legislative measures may be necessary for admitting the state of ohio into the union, or for extending to that state the laws of the united states; and _ordered_, that messrs. breckenridge, morris, and anderson, be the committee, and that the letter signed t. worthington, agent for the state of ohio, laid before the senate this morning, together with a copy of the constitution of said state, be referred to the same committee, to consider and report thereon. the bill to carry into effect the several resolutions of congress for erecting monuments to the memories of the late generals wooster, herkimer, davidson, and scriven, was read the third time. on motion to postpone the further consideration of this bill until the first monday in december next, it passed in the negative--yeas , nays , as follows: yeas.--messrs. anderson, baldwin, bradley, breckenridge, cocke, ellery, nicholas, sumter, and wright. nays.--messrs. clinton, dayton, t. foster, d. foster, franklin, hillhouse, howard, jackson, logan, j. mason, morris, olcott, plumer, stone, tracy, wells, and white. on the question, shall this bill pass as amended? it was determined in the affirmative--yeas , nays , as follows: yeas.--messrs. baldwin, clinton, dayton, t. foster, d. foster, franklin, hillhouse, howard, jackson, logan, j. mason, morris, olcott, plumer, stone, tracy, wells, and white. nays.--messrs. anderson, bradley, breckenridge, cocke, ellery, nicholas, sumter, and wright. so it was _resolved_, that this bill pass, that it be engrossed, and that the title thereof be "an act to carry into effect the several resolutions of congress for erecting monuments to the memories of the late generals wooster, herkimer, davidson, and scriven." tuesday, january . in executive session, the following message was received from the president of the united states: _gentlemen of the senate_: the cession of the spanish province of louisiana to france, and perhaps of the floridas, and the late suspension of our right of deposit at new orleans, are events of primary interest to the united states. on both occasions, such measures were promptly taken as were thought most likely amicably to remove the present and to prevent future causes of inquietude. the objects of these measures were to obtain the territory on the left bank of the mississippi, and eastward of that, if practicable, on conditions to which the proper authorities of our country would agree; or, at least, to prevent any changes which might lessen the secure exercise of our rights. while my confidence in our minister plenipotentiary at paris is entire and undiminished, i still think that these objects might be promoted by joining with him a person sent from hence directly, carrying with him the feelings and sentiments of the nation, excited on the late occurrence, impressed by full communications of all the views we entertain on this interesting subject; and thus prepared to meet and to improve, to a useful result, the counter-propositions of the other contracting party, whatsoever form their interests may give to them, and to secure to us the ultimate accomplishment of our object. i therefore nominate robert r. livingston to be minister plenipotentiary, and james monroe to be minister extraordinary and plenipotentiary, with full powers to both, jointly, or to either, on the death of the other, to enter into a treaty or convention with the first consul of france, for the purpose of enlarging, and more effectually securing, our rights and interests in the river mississippi, and in the territories eastward thereof. but as the possession of these provinces is still in spain, and the course of events may retard or prevent the cession to france being carried into effect, to secure our object, it will be expedient to address equal powers to the government of spain also, to be used only in the event of its being necessary. i therefore nominate charles pinckney to be minister plenipotentiary, and james monroe, of virginia, to be minister extraordinary and plenipotentiary, with full powers to both, jointly, or to either, on the death of the other, to enter into a treaty or convention with his catholic majesty, for the purpose of enlarging, and more effectually securing, our rights and interests in the river mississippi, and in the territories eastward thereof. jan. , . th. jefferson. the messages and papers therein referred to were read, and ordered that they severally lie for consideration. monday, january . mr. brown, from the state of kentucky, attended. wednesday, january . aaron burr, vice president of the united states, and president of the senate, attended. thursday, january . the vice president laid before the senate a certificate of the election of samuel m'clay, esq. of northumberland county, and state of pennsylvania, to be a senator of the united states from the fourth day of march next, inclusive; and it was read and ordered to lie on file. monday, january . the vice president communicated a letter from the clerk of the house of representatives of the state of delaware, enclosing the credentials of samuel white, esq., elected a senator of the united states for the term of six years, commencing on the th day of march next; and they were read. _ordered_, that they lie on file. wednesday, january . james ross, from pennsylvania, attended. thursday, january . mr. ross presented the several representations and memorials of richard basset, egbert benson, benjamin bourne, william griffith, samuel hitchcock, b. p. key, c. magill, jeremiah smith, g. k. taylor, william tilghman, and oliver wolcott, judges of the circuit courts under the late act, entitled "an act to provide for the more convenient organization of the courts of the united states;" stating that, since the repeal of the said act, no law had been made for assigning to them the execution of any judicial functions, nor has any provision been made for the payment of their stipulated compensations; and most respectfully requesting congress to review the existing laws with respect to the officers in question; and the memorials were read. _ordered_, that they be referred to messrs. morris, ross, and dayton, to consider and report thereon, and that the memorials be printed for the use of the senate. the memorial is as follows _to the honorable the senate and house of representatives in congress assembled_: the undersigned most respectfully submit the following resolution and memorial. by an act of congress passed on the thirteenth day of february, in the year of our lord one thousand eight hundred and one, entitled "an act to provide for the more convenient organization of the courts of the united states," certain judicial offices were created, and courts established, called circuit courts of the united states. in virtue of appointments made under the constitution of the united states, the undersigned became vested with the offices so created, and received commissions authorizing them to hold the same, with the emoluments thereunto appertaining, during their good behavior. during the last session an act of congress passed, by which the above-mentioned law was declared to be repealed; since which no law has been made for assigning to your memorialists the execution of any judicial functions, nor has any provision been made for the payment of their stipulated compensations. under these circumstances, and finding it expressly declared in the constitution of the united states, that "the judges both of the supreme and inferior courts shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office," the undersigned, after the most deliberate consideration, are compelled to represent it as their opinion, that the rights secured to them by the constitution, as members of the judicial department, have been impaired. with this sincere conviction, and influenced by a sense of public duty, they most respectfully request of congress to review the existing laws which respect the offices in question, and to define the duties to be performed by the undersigned, by such provisions as shall be consistent with the constitution, and the convenient administration of justice. the right of the undersigned to their compensations, they sincerely believe to be secured by the constitution, notwithstanding any modification of the judicial department, which, in the opinion of congress, public convenience may recommend. this right, however, involving a personal interest, will be cheerfully submitted to judicial examination and decision, in such manner as the wisdom and impartiality of congress may prescribe. that judges should not be deprived of their offices or compensations without misbehavior appears to the undersigned to be among the first and best established principles of the american constitutions; and in the various reforms they have undergone, it has been preserved and guarded with increased solicitude. on this basis the constitution of the united states has laid the foundation of the judicial department, and expressed its meaning in terms equally plain and peremptory. this being the deliberate and solemn opinion of the undersigned, the duty of their stations requires that they should declare it to the legislative body. they regret the necessity which compels them to make the representation, and they confide that it will be attributed to a conviction that they ought not voluntarily to surrender rights and authorities intrusted to their protection, not for their personal advantage, but for the benefit of the community. thursday, february . _memorial of judges._ agreeably to the order of the day, the senate took into consideration the report of the committee on the several memorials of the judges, under the late act to provide for the more convenient organization of the courts of the united states. the committee report as follows: that the petitioners were judges of certain courts, inferior to the supreme court, constituted by an act of the th of february, , and duly commissioned to hold their offices during good behavior. that, while holding and exercising their offices, an act was passed on the th of march last, to repeal the said act of the th of february, , and transfer the duties of the said judges from them to others. that a question has arisen whether, by reason of the premises, the said petitioners be deprived of their offices. that this question, depending on the construction of the laws and constitution of the united states, is not properly cognizable by the senate. the committee, therefore, conceive it improper either to give reasons or express opinions; but they consider it as a question of high and serious import, and believe that a speedy investigation and final decision is of great moment to the commonwealth. wherefore, they submit the following resolution. _resolved_, that the president of the united states be requested to cause an information, in the nature of a _quo warranto_, to be filed by the attorney general against richard basset, one of the said petitioners, for the purpose of deciding judicially on their claims. mr. morris said, i rise, mr. president, as chairman of the committee whose report you have just had the goodness to read, for the purpose of explaining their reasons. if this were a common or an ordinary occasion, if no heats had been excited, if there were no unpleasant, no tormenting recollections, a measure so plain, so easy, so simple, would require neither argument nor persuasion. it would be adopted for its own interior evidence, and from the general sense of propriety. unhappily, sir, this is not the case. serious differences of opinion have existed, and still exist on the subject with which it is connected. from these have arisen disputes, divisions, bickerings. there is not, i fear, in the minds of men, that calm impartiality which is needful to fair investigation. there remains much of prejudice, of irritability. your committee have pursued the course which appeared to be proper, not only in itself, but according to the existent circumstances. gentlemen will easily see that they might have made an elaborate report, containing a long detail of reasons to establish a favorite conclusion; and a slight knowledge of the forms of business will show, that they might have placed that report at length on your journals. but would this have been right? would it have tended to conciliate? would it have been a proper return for the unanimity with which your committee was chosen? surely it would not; and is it not the duty of every good citizen to heal, as far as possible, the wounds of society? to calm those irritations which disturb its repose? to remove all things which may alarm, torment, or exacerbate? mr. president, your committee have no intention, no wish to revive a discussion of points already settled. while the act of last session was in agitation, we opposed it steadily, pertinaciously. but that act has become a law, and to the authority of the law we bow submissively. while in suspense, we thought it our duty, as senators, to oppose it. but since it has been adopted, according to the forms of the constitution, we know that as citizens we are bound to obey. with these deep impressions, then, of what is due to the supreme law of our land, i shall proceed to the report of your committee, and endeavor to explain its several parts. gentlemen will perceive that the question which the memorialists have submitted to our investigation is, whether the law of last session has deprived them of their office of judge. your committee consider this question as not being cognizable by the senate. it is not for the senate, nor the representatives, nor both combined, to interpret their own acts. we are a part of the legislature. a part of the executive power is also delegated to us. if the judiciary be added, it will constitute a tyranny. it is, indeed, the very definition of tyranny which has been given by those best acquainted with the subject. this senate can have no wish to arrogate power. it is too just, too wise. if a sense of propriety did not prevent, prudence alone would forbid the attempt. this body is too feeble for the exercise of so much authority. its form, its constitution, the mode and manner of its creation and existence, the strength and structure of its members, render it incapable of sustaining a greater weight of power. your committee, sir, have ventured to express their belief, that the question should be speedily settled. i learned in early youth, from the volumes of professional science, that it is expedient for the commonwealth that a speedy end should be put to litigation; and if it be important that litigation should cease between man and man, how much more important that a litigated point of public right, which interests and agitates the whole community, should be laid at rest? and if this be important in the general course of things, is it not, under present circumstances, indispensable? and how is it to be effected? by an exertion of legislative might; by force. remember, force will excite resistance. such is the nature of the human heart. free citizens revolt with disdain at the exercise of force. but judgment commands their prompt, their willing obedience. when the law is known, when it is declared by the proper tribunals, all will bow to its authority. you, then, may expect a full, and quiet, and general submission. but while it is litigated and uncertain what the law is, differences will exist, and discord will prevail. it is under these impressions, sir, that your committee have presumed to offer the resolutions on your table; and as some of the technical terms may not be familiar to every gentleman, it may be proper to state the kind of proceeding which is recommended. the attorney general, or, as he is denominated in french idiom, the public accuser, will institute, before the proper tribunal, an inquiry by what authority these men claim to hold and exercise the office of judge. it will then be incumbent upon them, either to disclaim the office, and then there is an end of the question; or else (claiming it) to establish their right. and to do this, they must prove two things; first, that the office exists, and secondly, that of right it belongs to them. failing of either, their claim is gone. now, sir, it may be well to consider the decisions which may be made, and their probable effect. i take it for granted, that these gentlemen, who have asked a judicial decision, will not disclaim, and that whatever judgment may be given in the first instance, the cause will be brought up to the supreme court. if the judgment, in the last resort, should be (as it probably would be) against the claim, all complaint will be quieted, and all opposition will cease. some then, indeed, might triumph. for my own part, i should find in it great consolation--the consolation of knowing that, however wrong may have been my own opinions, the supreme legislature of my country have done right. the pride of opinion might, indeed, be wounded; but god forbid, that from motives of pride, or from any other motive, i should hear, without deep concern, that the legislature of my country have violated that sacred charter from which they derive their authority! but suppose an opinion different, contrarient, or the very reverse (for that also is possible.) will the judges rudely declare that you have violated the constitution, unmindful of your duty, and regardless of your oath? no. with that decency which becomes the judicial character; that decency which upholds national dignity and impresses obedience on the public will; that decency, the handmaid of the graces, which more adorns a magistrate than ermine, aye, than royal robes; with that decency which so peculiarly befits their state and condition, they will declare what the legislature meant. they will never presume to believe, much less to declare, that you meant to violate the constitution. there will be no dangerous and hateful clashing of public authorities. they will never question the exercise of that high discretion with which you are invested. they will not deny your full supremacy. they will not examine into your motives, nor assign improper views. they will respect you so long as they preserve a due respect for themselves. they will declare, that in assigning duties to one officer, and taking them from another, you have to consult only your own convictions of what the interest or convenience or the people may require. they will modestly conclude, that you did not mean to abolish the offices which the constitution had forbidden you to abolish; and, therefore, finding that it was not your intention to abolish, they will declare that the offices still exist. such, sir, would be the language of your supreme judiciary, from the high sense they entertain of their duty. and, if it were decent to suggest in this senate, that they were lost to a sense of duty, can it be believed, that a few feeble judges will dare oppose themselves to the power of the legislature? the vice president rose, and said he must call the attention of the senate to the point in discussion, which was, whether the senate would request the president to cause a process to be instituted for the purpose of ascertaining whether the petitioners still hold the office of judge. on this question, it could not be in order to go back to a law passed at the last session, and to discuss the merits of that law. mr. jackson said, it appeared by the memorial that the petitioners considered themselves as being still judges, notwithstanding the law of last session. he thought, therefore, it could not be out of order to show that that act deprived them of their offices. mr. wright premised, that he would endeavor to confine his remarks to the point before the senate. he felt no disposition to travel again over the ground which had been traversed at the last session. the petition was addressed to both houses, and prayed for two things; first, that congress, in their legislative capacity, would assign to the petitioners some judicial duties; and secondly, that they would authorize a judicial investigation of their claim to compensation. the committee, therefore, ought to have confined their inquiries to these points, and to have reported accordingly. instead of that, they had reported a resolution, which, if adopted, would be neither a grant nor a denial of the prayer of the petition. in doing this, the committee had exceeded their powers, and proposed a measure which the senate itself was not authorized to adopt. mr. w. took a review of the constitutional powers of the senate, in its legislative and executive capacities, and inquired, have we any constitutional authority to make such a request of the president? in what part of the constitution is such power delegated to this house? are we to make the request as private gentlemen, or as a constitutional organ of the government. if as private gentlemen, the act would clearly be a nullity; the president would still be at liberty to comply with the request, or not, as he might think proper. if as a constitutional organ of the government, where is the power given to the senate? and what would be the remedy if he should refuse to comply? the senate is the constitutional adviser of the president in the formation of treaties, and in the appointment of officers, &c. the constitution expressly declares that the president shall exercise these powers by and with the advice and consent of the senate. here, then, it is their right and their duty to advise him. but the constitution further says: "he shall take care that the laws be faithfully executed." have the senate any authority to advise him as to the faithful execution of the laws? they can go no further than they are expressly commissioned by the constitution. the specification of particular executive powers, by the constitution, is a denial of all others. _admissio unius est exclusio alterius_; and, as the constitution has given no power to this effect, it follows that no such power can be exercised by the senate. if the courts have power to try the validity of laws of congress, they can exercise that power as well without the authority of this resolution as with it. if they have not the power, neither this house nor the legislature can give it them. the duties and the powers of the supreme court are defined by the constitution. should the senate, then, adopt the resolution, the supreme court would have no power to act under it, unless that power is given by the constitution. let us, then, examine the authority of this court. the constitution says: "in all cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be a party, the supreme court shall have original jurisdiction." will the gentlemen say that these judges are ambassadors, other public ministers or consuls, or that they are a state? if not, the supreme court can have no jurisdiction of the case, and the committee have imposed upon the senate a resolution which they had no authority to submit. as to the law of the last session, by which these judges had been deprived of their offices, mr. w. had no fear that the supreme court, or any body else would attempt to set it aside. the whole nation has approved the measure, as many of those who opposed it have fatally experienced. the question on agreeing to the resolution was now taken, and determined in the negative--yeas , nays , as follows: yeas.--messrs. dayton, dwight, foster, hillhouse, howard, j. mason, morris, ogden, olcott, plumer, ross, tracy, wells, and white. nays.--messrs. anderson, baldwin, bradley, breckenridge, brown, clinton, cocke, ellery, t. foster, jackson, logan, nicholas, stone, sumter, and wright. _ordered_, that the memorialists have leave to withdraw their memorial. monday, february . _the mississippi question._ after the senate had finished its deliberations upon the legislative business before it-- mr. ross rose and said, that although he came from a part of the country where the late events upon the mississippi had excited great alarm and solicitude, he had hitherto forborne the expression of his sentiments, or to bring forward any measure relative to the unjustifiable, oppressive conduct of the officers of the spanish government at new orleans. he had waited thus long in the hope that some person, more likely than himself to conciliate and unite the opinions of a majority of the senate, would have offered efficacious measures for their consideration; but, seeing the session now drawing to a close, without any such proposition, he could not reconcile a longer silence either to his own sense of propriety or to the duty he owed to his constituents. he would not consent to go home without making one effort, however feeble or unsuccessful, to avert the calamity which threatened the western country. present appearances, he confessed, but little justified the hope that any thing he might propose would be adopted, yet it would at least afford him some consolation, hereafter, that he had done his duty, when the storm was approaching, by warning those who had power in their hands of the means which ought to be employed to resist it. he was fully aware that the executive of the united states had acted; that he had sent an envoy extraordinary to europe. this was the peculiar province, and perhaps the duty of the president. he would not say that it was unwise in this state of our affairs to prepare for remonstrance and negotiation, much less was he then about to propose any measure that would thwart negotiation, or embarrass the president. on the other hand, he was convinced that more than negotiation was absolutely necessary, that more power and more means ought to be given to the president, in order to render his negotiations efficacious. could the president proceed further, even if he thought more vigorous measures proper and expedient? was it in his power to repel and punish the indignity put upon the nation? could he use the public force to redress our wrongs? certainly not. this must be the act of congress. they are now to judge of ulterior measures; they must give the power, and vote the means to vindicate, in a becoming manner, the wounded honor and the best interests of the country. mr. r. said, he held in his hands certain resolutions for that purpose, and, before he offered them to the senate, he would fully explain his reasons for bringing them forward and pressing them with earnestness, as the best system the united states could now pursue. it was certainly unnecessary to waste the time of that body in stating that we had a solemn explicit treaty with spain; that this treaty had been wantonly and unprovokedly violated, not only in what related to the mississippi, but by the most flagrant, destructive spoliations of our commerce, on every part of the ocean, where spanish armed vessels met the american flag. these spoliations were of immense magnitude, and demanded the most serious notice of our government. they had been followed by an indignity and a direct infraction of our treaty relative to the mississippi, which bore an aspect not to be dissembled or mistaken. to the free navigation of that river we had an undoubted right from nature, and from the position of our western country. this right, and the right of deposit in the island of new orleans, had been solemnly acknowledged and fixed by treaty in . that treaty had been in actual operation and execution for many years; and now, without any pretence of abuse or violation on our part, the officers of the spanish government deny the right, refuse the place of deposit, and add the most offensive of all insults, by forbidding us from landing on any part of their territory, and shutting us out as a common nuisance. by whom has this outrage been offered? by those who have constantly acknowledged our right, and now tell us that they are no longer owners of the country! they have given it away, and, because they have no longer a right themselves, therefore, they turn us out, who have an undoubted right! such an insult, such unprovoked malignity of conduct, no nation but this would affect to mistake. and yet we not only hesitate as to the course which interest and honor call us to pursue, but we bear it with patience, tameness, and apparent unconcern. sir, said mr. r., whom does this infraction of the treaty and the natural rights of this country most intimately affect? if the wound inflicted on national honor be not sensibly felt by the whole nation, is there not a large portion of your citizens exposed to immediate ruin by a continuance of this state of things? the calamity lights upon all those who live upon the western waters. more than half a million of your citizens are by this cut off from a market. what would be the language, what would be the feelings of gentlemen in this house, were such an indignity offered on the atlantic coast? what would they say if the chesapeake, the delaware, or the bay of new york were shut up, and all egress prohibited by a foreign power? and yet none of these waters embrace the interests of so many as the mississippi. the numbers and the property affected by shutting this river, are greater than any thing that could follow by the blockade of a river on the atlantic coast. every part of the union was equally entitled to protection, and no good reason could be offered why one part should be less attended to than another. fortunately for this country, there could be no doubt in the present case; our national right had been acknowledged, and solemnly secured by treaty. the treaty had been long in a state of execution. it was violated and denied without provocation or apology. the treaty then was no security. this evident right was one, the security of which ought not to be precarious: it was indispensable that the enjoyment of it should be placed beyond all doubt. he declared it therefore to be his firm and mature opinion, that so important a right would never be secure, while the mouth of the mississippi was exclusively in the hands of the spaniards. caprice and enmity occasion constant interruption. from the very position of our country, from its geographical shape, from motives of complete independence, the command of the navigation of the river ought to be in our hands. we are now wantonly provoked to take it. hostility in its most offensive shape has been offered by those who disclaim all right to the soil and the sovereignty of that country--a hostility fatal to the happiness of the western world. why not seize then what is so essential to us as a nation? why not expel the wrongdoers?--wrongdoers by their own confession, to whom by a seizure we are doing no injury. paper contracts, or treaties, have proved too feeble. plant yourselves on the river, fortify the banks, invite those who have an interest at stake to defend it: do justice to yourselves when your adversaries deny it; and leave the event to him who controls the fate of nations. why submit to a tardy, uncertain negotiation, as the only means of regaining what you have lost: a negotiation with those who have wronged you; with those who declare they have no right, at the moment they deprive you of yours? when in possession, you will negotiate with more advantage. you will then be in the condition to keep others out. you will be in the actual exercise of jurisdiction over all your claims; your people will have the benefits of a lawful commerce. when your determination is known, you will make an easy and an honorable accommodation with any other claimant. the present possessors have no pretence to complain, for they have no right to the country by their own confession. the western people will discover that you are making every effort they could desire for their protection. they will ardently support you in the contest, if a contest becomes necessary. their all will be at stake, and neither their zeal nor their courage need be doubted. suppose that this course be not now pursued. let me warn gentlemen how they trifle with the feelings, the hopes, and the fears of such a body of men, who inhabit the western waters. let every honorable man put the question to himself; how would half a million round him be affected by such a calamity, and no prompt measures taken by the government to redress it? these men have arms in their hands; the same arms with which they proved victorious over their savage neighbors. they have a daring spirit; they have ample means of subsistence; and they have men disposed to lead them on to revenge their wrongs. are you certain that they will wait the end of negotiation? when they hear that nothing has been done for their immediate relief, they will probably take their resolution and act. indeed, from all we have heard, there is great reason to believe that they will, or that they may have already taken that resolution. they know the nature of the obstruction, they know the weakness of the country; they are sure of present success, and they have a bold river to bear them forward to the place of action. they only want a leader to conduct them, and it would be strange, if with such means and such a spirit, a leader should not soon present himself. suppose they do go, and do chase away the present oppressors, and that in the end they are overpowered and defeated by a stronger foe than the present feeble possessors. they will never return to you, for you cannot protect them. they will make the best compromise they can with the power commanding the mouth of the river, who, in effect, has thereby the command of their fortunes. will such a bargain be of light or trivial moment to the atlantic states. buonaparte will then say to you, my french west india colonies, and those of my allies, can be supplied from my colony of louisiana, with flour, pork, beef, lumber, and any other necessary. these articles can be carried by my own ships, navigated by my own sailors. if you, on the atlantic coast, wish to trade with my colonies in those articles, you must pay fifteen or twenty per cent, of an impost. we want no further supplies from you, and revenue to france must be the condition of all future intercourse. what will you say to this? it will be vain to address your western brethren, and complain your commerce is ruined, your revenue dwindles, and your condition is desperate. they will reply that you came not to their assistance in the only moment you could have saved them; that you balanced between national honor and sordid interest, and suffered them to be borne down and subdued, at a time when for a trifle you could have secured the mississippi; that now their interest must be consulted, and it forbade any assistance to you, when following in the same train of ruin which overwhelmed them. if the evil does not immediately proceed the full length of disunion, yet the strength, the unity of exertion, the union of interest will be gone. we are no longer one people, and representatives from that part of the country in our public councils, will partake of the spirit and breathe the sentiments of a distinct nation; they will rob you of your public lands; they will not submit to taxes; they will form a girdle round the southern states, which may be denominated a foreign yoke, and render the situation of that country very precarious as to its peace and past connections. indeed, every aspect of such a state of things is gloomy and alarming to men who take the trouble of reflecting upon it. where is the nation, ancient or modern, that has borne such treatment without resentment of resistance? where is the nation that will respect another that is passive under such humiliating degradation and disgrace? your outlet to market closed, next they will trample you under foot upon your own territory which borders upon theirs! yet you will not stir, you will not arm a single man; you will negotiate! negotiation alone, under such circumstances, must be hopeless. no. go forward, remove the aggressors, clear away the obstructions, restore your possession with your own hand, and use your sword if resistance be offered. call upon those who are most injured, to redress themselves; you have only to give the call, you have men enough near to the scene, without sending a man from this side the mountains; force sufficient, and more than sufficient, for a prompt execution of your orders. if money be an object, one half of the money which would be consumed and lost by delay and negotiation, would put you in possession; then you may negotiate whether you shall abandon it and go out again. i say, also, let us go and redress ourselves; you will have the whole nation with you. on no question since the declaration of independence, has the nation been so unanimous as upon this. we have at different times suffered great indignity and outrages from different european powers; but none so palpable, so inexcusable, so provoking, or of such magnitude in their consequences, as this. upon none has public opinion united so generally as this. it is true we have a lamentable division of political opinion among us, which has produced much mischief, and may produce much greater than any we have yet felt. on this question, party spirit ought to sink and disappear. my opinions are well known, and are not likely to change; but i candidly, and with all possible sincerity, declare my conviction to be clear, that there will not be a dissenting voice in the western country if this course be taken; that so far as my own abilities go, they shall be exerted to the utmost to support it; and i know that my friends on this floor with whom i have long thought and acted, have too high a regard for the national honor, and the best interests of their country, to hesitate a moment giving the same pledge of their honest determination to support and render these measures effectual, if taken: call them ours, if you please, we take the responsibility, and leave the execution of them with you. for, as to myself or my friends, no agency is wished, except that of uniting with you in rousing the spirit, and calling out the resources of the country, to protect itself against serious aggression, and the total subjection and loss of the western country. mr. r. then read his resolutions, which are as follows: "_resolved_, that the united states have an indisputable right to the free navigation of the river mississippi, and to a convenient place of deposit for their produce and merchandise in the island of new orleans. "that the late infraction of such their unquestionable right, is an aggression hostile to their honor and interest. "that it does not consist with the dignity or safety of this union to hold a right so important by a tenure so uncertain. "that it materially concerns such of the american citizens as dwell on the western waters, and is essential to the union, strength, and prosperity of these states, that they obtain complete security for the full and peaceable enjoyment of such their absolute right. "that the president be authorized to take immediate possession of such place or places, in the said island, or the adjacent territories, as he may deem fit and convenient for the purposes aforesaid; and to adopt such other measures for obtaining that complete security as to him in his wisdom shall seem meet. "that he be authorized to call into actual service any number of the militia of the states of south carolina, georgia, ohio, kentucky, tennessee, or of the mississippi territory, which he may think proper, not exceeding fifty thousand, and to employ them, together with the military and naval forces of the union, for effecting the objects above mentioned. "that the sum of five millions of dollars be appropriated to the carrying into effect the foregoing resolutions, and that the whole or any part of that sum be paid or applied, on warrants drawn in pursuance of such directions as the president may, from time to time, think proper to give to the secretary of the treasury."[ ] monday, february . the vice president communicated the credentials of theodorus bailey, appointed a senator by the state of new york, to take his seat after the third day of march next; which were read, and ordered to lie on file. tuesday, february . _purchase of louisiana._ in executive session, the bill, entitled "an act making further provision for the expenses attending the intercourse between the united states and foreign nations," was read the third time. on the question, shall this bill pass? it was determined in the affirmative--yeas , nays , as follows: yeas.--messrs. anderson, baldwin, bradley, breckenridge, clinton, cocke, ellery, t. foster, jackson, logan, s. t. mason, nicholas, sumter, and wright. nays.--messrs. dayton, d. foster, hillhouse, howard, j. mason, morris, olcott, plumer, ross, stone, wells and white. so it was _resolved_, that this bill pass.[ ] wednesday, february . _mississippi question._ mr. white, of delaware, rose and addressed the chair as follows: mr. president, on this subject, which has on a former day been discussed with so much ability, and with so much eloquence, by my friend from pennsylvania, the honorable mover of the resolutions, i shall submit the few observations that i may make, in as concise a manner as i am capable of; for it is very far from my wish to occupy the time or attention of the senate unnecessarily. the resolutions on your table i approve of in their full extent; i believe they express the firm and manly tone that at this moment is especially becoming the dignity of the government to assume; i believe they mark out a system of measures, which, if promptly pursued, will be honorable to the nation, and equal to the accomplishment of the important object which gentlemen on all sides seem to have in view. these alone, with me, would be sufficient inducements to yield them my feeble support; but in addition to these, and to the thorough conviction of my own mind as to the course i ought to pursue, i have the happiness of being supported in my opinions on this subject by the unequivocal expression of the sentiment of the state to which i have the honor to belong. it was early seen, mr. president, and required but little penetration to discover, that adventurers emigrating beyond the mountains, and settling on the western waters, must possess the free navigation of the mississippi, it being their only outlet to the ocean. this important privilege it became necessary on the part of the government of the united states to secure by treaty, and not leave to the capricious will of whatever nation who might in future hold the territory at the mouth of the river. accordingly, in the th and d articles of our treaty with spain, i find on this subject the following stipulation: "art. . it is likewise agreed that the western boundary of the united states, which separates them from the spanish colony of louisiana, is in the middle of the channel or bed of the river mississippi, from the northern boundary of the said states to the completion of the st degree of latitude north of the equator. and his catholic majesty has likewise agreed that the navigation of the said river, in its whole breadth from its source to the ocean, shall be free only to his subjects and the citizens of the united states, unless he should extend this privilege to the subjects of other powers by special convention." "art. . the two high contracting parties, hoping that the good correspondence and friendship which happily reigns between them will be further increased by this treaty, and that it will contribute to augment their prosperity and opulence, will in future give to their mutual commerce all the extension and favor which the advantages of both countries may require. "and in consequence of the stipulations contained in the th article, his majesty will permit the citizens of the united states, for the space of three years from this time, to deposit their merchandise and effects in the port of new orleans, and to export them from thence without paying any other duty than a fair price for the hire of the stores; and his majesty promises either to continue this permission, if he finds, during that time, that it is not prejudicial to the interests of spain, or if he should not agree to continue it there, he will assign to them, on another part of the banks of the mississippi, an equivalent establishment." this instrument, mr. president, it is known, for a time, quieted the fears and jealousies of our western brethren; they supposed it had removed for ever the possibility of any future embarrassment to their commerce on those waters. and after it had been proclaimed as the law of the land--after it had been ratified by both nations, and become obligatory upon the faith and honor of each, who could have thought otherwise? yet, sir, it has happened otherwise. this place of deposit at new orleans, secured to our citizens by the article last read, has been recently wrested from their hands by the authority of the spanish government, and no other equivalent one assigned, where, after more than two thousand miles of boat navigation, they may disembark their produce in order to be shipped for sea; and without this advantage the navigation of the river is to them but an empty name. i have said, by the authority of the spanish government, it has indeed been given out to the world, for reasons that every man may conjecture, and are unnecessary to be mentioned, that this was not the act of the government, but the rash measure of a single officer--the intendant general of the spanish provinces; that the spanish minister had issued orders for the speedy adjustment of these difficulties; had kindly offered to throw himself into the breach to prevent this intendant general from going to extremities with the government of the united states. sir, gentlemen may find, when too late, that this is a mere piece of diplomatic policy, intended only to amuse them; and to say nothing of the humiliating idea of resorting to such a plaster for the wound that has been inflicted upon our national honor, if they had taken the trouble, they might have been informed that the spanish minister near this government has no control at new orleans; that the intendant general is, like himself, an immediate officer of the crown, and responsible only to the crown for his conduct. if the spanish minister has interfered, which i am not disposed to question, to make the best of it, it could only have been by the entreaties of men in power, as a mere mediator, to beg of the intendant general of new orleans justice and peace on behalf of the people of the united states. are honorable gentlemen prepared to accept peace on such terms? they might do, sir, for a tribe of starving indians; but is this the rank that we are to hold among the nations of the world? and it seems that even these supplicating advances are likely to avail us nothing. by accounts very lately received from new orleans, by a private letter which i have seen since these resolutions were submitted to the senate, the intendant general has expressed much displeasure at the interference of the spanish minister, stating that it was not within his duty or his province, and that he, the intendant, acted not under spanish but french orders. as to the closing of the port of new orleans against our citizens, the man who can now doubt, after viewing all the accompanying circumstances, that it was the deliberate act of the spanish or french government, must have locked up his mind against truth and conviction, and be determined to discredit even the evidence of his own senses. but, sir, it is not only the depriving us of our right of deposit by which we have been aggrieved, it is by a system of measures pursued antecedent and subsequent to that event, equally hostile and even more insulting. i have in my hand a paper, signed by a spanish officer, which, with the indulgence of the chair, i will read to the senate: advertisement.--under date of the th instant, (december,) the intendant general of these provinces tells me that the citizens of the united states of america can have no commerce with his majesty's subjects--they only having the free navigation of the river for the exportation of the fruits and produce of their establishments to foreign countries, and the importation of what they may want from them. as such i charge you, so far as respects you, to be zealous and vigilant, with particular care, that the inhabitants neither purchase nor sell any thing to the shipping, flat-bottomed boats, barges, or any other smaller vessels that may go along the river, destined for the american possessions, or proceeding from them, that they shall be informed of it, for their due compliance of the same. carlos de grandpre. baton rouge, _dec. , _. these are the measures, mr. president, that have been adopted; these are the orders that have been issued by the intendant general to every district of the spanish provinces, prohibiting the subjects of his catholic majesty from having any commerce, dealing, intercourse, or communion whatsoever with the citizens of the united states; excluding us from their shores for the distance of two hundred and seventy miles; treating us like a nation of pirates, or a banditti of robbers, who they feared to trust in their country. and this day, sir, if a vessel belonging to a citizen of the united states, engaged in a fair and legal trade, was upon the waters of the mississippi, within the spanish lines, and in a state of the most extreme distress, the spaniard who should yield her aid or comfort would do it at the peril of his life. if it should be said, sir, that this important question will not long be an affair of controversy between the united states and spain; that louisiana, new orleans, and this usurped claim of the spanish government to the exclusive navigation of the mississippi, will soon be found in other hands; that whenever we may have to negotiate on this subject, either in the cabinet or the field, it will not be with his catholic majesty, but with the first consul; not with a king, but with the king of kings--i answer that in these insults to our national dignity, we at present know no power but spain. whatever agency buonaparte may have had in this business, he has been concealed from our view. it is spain that has violated her plighted faith; it is spain that has trampled upon the dearest interests of the united states, and insulted our government to our faces without the semblance of a cause, and she alone is responsible to us for these outrages. and, under such circumstances, is it becoming, politic, or honorable in us to treat her as a friend and as a neighbor; to remonstrate with her on her acts of injustice, and wait till she shall add insult to insult, and heap injury upon injury; or what is perhaps even worse, if any thing worse than national degradation can befall an independent people, till this golden opportunity shall have passed away, and the facility of redress be wrested from our hands? no, sir, we should now view her as our open enemy, as having declared war against us, and do justice to ourselves. we can never have permanent peace on our western waters, till we possess ourselves of new orleans, and such other positions as may be necessary to give us the complete and absolute command of the navigation of the mississippi. we have now such an opportunity of accomplishing this important object as may not be presented again in centuries, and every justification that could be wished for availing ourselves of the opportunity. spain has dared us to the trial, and now bids us defiance; she is yet in possession of that country: it is at this moment within your reach and within your power; it offers a sure and easy conquest; we should have to encounter there now only a weak, inactive, and unenterprising people; but how may a few months vary this scene, and darken our prospects! though not officially informed we know that the spanish provinces on the mississippi have been ceded to the french, and that they will as soon as possible take possession of them. what may we then expect? when in the last extremity we shall be driven to arms in defence of our indisputable rights, where now slumbers on his post with folded arms the sluggish spaniard, we shall be hailed by the vigilant and alert french grenadier, and in the defenceless garrison that would now surrender at our approach, we shall see unfurled the standards that have waved triumphant in italy, surrounded by impregnable ramparts, and defended by the disciplined veterans of egypt. but, mr. president, what is more than all to be dreaded, in such hands, it may be made the means of access and corruption to your national councils and a key to your treasury. your western people will see in buonaparte, at their very doors, a powerful friend or a dangerous enemy; and should he, after obtaining complete control over the navigation of the mississippi, approach them, not in the menacing attitude of an enemy, but under the specious garb of a protector and a friend; should he, instead of embarrassing their commerce by any fiscal arrangements, invite them to the free navigation of the river, and give them privileges in trade not heretofore enjoyed; should he, instead of attempting to coerce them to his measures, contrary to their wishes, send missionaries into their country to court and intrigue with them, he may seduce their affections, and thus accomplish by address and cunning, what even his force might not be equal to. in this way, having operated upon their passions, having enlisted in his service their hopes and their fears, he may gain an undue ascendency over them. should these things be effected, which god forbid--but buonaparte in a few years has done much more--what, let me ask honorable gentlemen, will be the consequences? i fear even to look them in the face. the degraded countries of europe, that have been enslaved by the divisions and distractions of their councils, produced by similar means, afford us melancholy examples. foreign influence will gain admittance to your national councils; the first consul, or his interests, will be represented in the congress of the united states; this floor may become the theatre of sedition and intrigue. you will have a french faction in the government, and that faction will increase, with the rapidly increasing population of the western world. whenever this period shall arrive, it will be the crisis of american glory, and must result, either in the political subjugation of the atlantic states, or in their separation from the western country; and i am sure there is no american who does not view as one of the greatest evils that could befall us, the dismemberment of this union. honorable gentlemen may wrap themselves up in their present imaginary security, and say that these things are afar off, or that they can never happen; but let me beseech of them to look well to the measures they are now pursuing, for, on the wisdom, the promptness, and energy of those measures, will depend whether they shall happen or not. and let me tell them, sir, that the want of firmness or judgment in the cabinet, will be no apology for the disgrace and ruin of the nation. mr. breckenridge observed, that he did not mean to wander in the field of declamation, nor, after the example of the honorable gentleman who had preceded him, endeavor to alarm or agitate the public mind; that he should endeavor to strip the subject of all improper coloring, and examine dispassionately the propriety of the measures which the senate were called upon to sanction. he would be very brief. what is the true and undisguised state of facts? early in the session, the house of representatives were informed, by a communication from the president, of the conduct of the intendant at new orleans. this communication stated, that he had taken measures to attempt a restoration of the right which had been violated; and that there were reasons to believe that the conduct of the intendant was unauthorized by the court of spain. accompanying this message were official papers, in which it appeared that the governor of new orleans had strongly opposed the conduct of the intendant, declared that he was acting without authority in refusing the deposit, and indicated a disposition to oppose openly the proceeding. the spanish minister who resides here, also interposed on the occasion, and who stands deservedly high in the confidence of his government, was clearly of opinion, that the intendant was acting without authority, and that redress would be given so soon as the competent authority could interpose. from this state of things, and which is the actual state at this moment, what is the course any civilized nation who respects her character or rights, would pursue? there is but one course, which is admitted by writers on the laws of nations, as the proper one; and is thus described by _vattel_, in his book, sec. , : "a sovereign ought to show, in all his quarrels, a sincere desire of rendering justice and preserving peace. he is obliged before he takes up arms, and after having taken them up also, to offer equitable conditions, and then alone his arms become just against an obstinate enemy, who refuses to listen to justice or to equity. his own advantage, and that of human society, oblige him to attempt, before he takes up arms, all the pacific methods of obtaining either the reparation of the injury, or a just satisfaction. this moderation, this circumspection, is so much the more proper, and commonly even indispensable, as the action we take for an injury does not always proceed from a design to offend us, and is sometimes a mistake rather than an act of malice: frequently it even happens, that the injury is done by inferior persons, without their sovereign having any share in it; and on these occasions, it is not natural to presume that he would refuse us a just satisfaction." this is the course which the president has taken, and in which the house of representatives have expressed, by their resolution, their confidence. what are the reasons urged by the gentlemen to induce a different proceeding, an immediate appeal to arms? you prostrate, say the gentlemen, your national honor by negotiating, where there is a direct violation of a treaty! how happens it that our national honor has, at this particular crisis, become so delicate, and that the feelings of certain gentlemen are now so alive to it? has it been the practice of this government heretofore to break lances on the spot with any nation who injured or insulted her? or has not the invariable course been to seek reparation in the first place by negotiation? i ask for an example to the contrary; even under the administration of washington, so much eulogized by the gentleman last up. were not the detroit, and several other forts within our territory, held ten or a dozen years by great britain, in direct violation of a treaty? were not wanton spoliations committed on your commerce by great britain, by france, and by spain, to the amount of very many millions; and all adjusted through the medium of negotiations? were not your merchants plundered, and your citizens doomed to slavery by algiers, and still those in power, even washington himself, submitted to negotiation, to ransom, and to tribute? why then do gentlemen, who on those occasions approved of these measures, now despair of negotiation? america has been uniformly successful, at least in settling her differences by treaty. but the gentleman is afraid that if we do not immediately seize the country, we shall lose the golden opportunity of doing it. would your national honor be free from imputation by a conduct of such inconsistency and duplicity? a minister is sent to the offending nation with an olive-branch, for the purpose of an amicable discussion and settlement of differences, and before he has scarcely turned his back, we invade the territories of that nation with an army of fifty thousand men! would such conduct comport with the genius and principles of our republic, whose true interest is peace, and who has hitherto professed to cultivate it with all nations? would not such a procedure subject us to the just censure of the world, and to the strongest jealousy of those who have possessions near to us? would such a procedure meet the approbation of even our own citizens, whose lives and fortunes would be risked in the conflict? and would it not be policy inexcusably rash, to plunge this country into war, to effect that which the president not only thinks can be effected, but is now actually in a train of negotiation? if, on the other hand, negotiation should fail, how different will be the ground on which we stand! we stand acquitted by the world, and what is of more consequence, by our own citizens, and our own consciences. but one sentiment will then animate and pervade the whole, and from thenceforth we will take counsel only from our courage. but to induce us to depart from this proper, this safe, and honorable course of proceeding, which is pursuing by the president, the gentleman from pennsylvania first, and the gentleman from delaware again told you, that by such pacific measures you will irritate the western people against you; that they will not be restrained by you, but will either invade the country themselves, or withdraw from the union and unite with those who will give them what they want. sir, said mr. b., i did not expect to hear such language held on this floor. sir, the gentleman from pennsylvania best knows the temper and views of the western people he represents, but if he meant to extend the imputation to the state i have the honor to represent, i utterly disclaim it. the citizens of kentucky value too highly their rights and character to endanger the one or dishonor the other. they deal not, sir, in insurrections. they hold in too sacred regard their federal compact to sport with it. they were among the first to oppose violations of it, and will, i trust, be the last to attempt its dissolution. the time indeed was, when not only irritation but disgust prevailed in that country; when, instead of sending fifty thousand men to seize on orleans, an attempt was meditated, and a solemn vote taken in congress to barter away this right for twenty-five years. the time indeed was, when great dissatisfaction prevailed in that country, as to the measures of the general government; but it never furnished there, whatever it might have done elsewhere, even the germs for treasons or insurrections. the people i have the honor to represent are not accustomed to procure redress in this way. instead of trampling on the constitution of their country, they rally round it as the rock of their safety. but, unhappily, these times have passed away. distrust and dissatisfaction have given place to confidence in, and attachment to those in whom the concerns of the nation are confided. i ask no reliance on my opinion for this fact, but appeal to the memorial of the legislature of kentucky to the present congress, for the truth of this assertion. in this disposition of mind, therefore, and from the sound sense and correct views and discernment of their true interest, which the people of kentucky possess, i have no hesitation in pledging myself, that no such precipitate and unwarranted measures will be taken by them, as predicted by the gentlemen in the opposition. but he begged leave to ask gentlemen who hold such language, would the western people, admitting they were to withdraw from the union, be able to accomplish the object? could they alone go to war with france and spain? could they hold orleans, were they to take possession of it, without the aid of the united states? admitting they could hold it, what security would they have for their commerce? a single ship of the line would be able completely to blockade that port. see, also, the havana, one of the safest and strongest of the spanish ports, and so situated as to possess every advantage in annoying our commerce. are the gentlemen, therefore, really serious when they endeavor to persuade us that the western people are in such a state of fury and mad impatience that they will not wait even a few months to see the fate of a negotiation, and, if unsuccessful, receive the aid of the whole nation, but that they will madly run to the attack without a ship, without a single cannon, without magazines, without money or preparation of any kind; and, what is worse, without union among themselves; and what is still worse, in face of the laws and constitution of their country? it is impossible. such a desperate project could not come to a successful issue; for should they even obtain the right by their own exertions alone, they could not expect long to enjoy it in peace, without descending from that exalted, that enviable rank of one of the independent states of united america, to the degraded, dependent condition of a colonial department of a foreign nation. although he thought it incumbent on us, for the reasons he had stated, to try the effect of negotiation, yet, should that fail, he thought it incumbent on us also to be prepared for another resort. he considered this right, and upon a different footing from what we ever enjoyed it, so all-important, so indispensable to the very existence of the western states, that it was a waste of words and time to attempt to portray the evils which a privation of it would produce; and he rejoiced to find that gentlemen with whom he had not been in the habit of voting on most political subjects so perfectly accord with him, that our precarious tenure of it must be changed. he hoped they were sincere in their declarations. if they were, the only difference between us now is, what are the proper means to obtain this great end? the course pursued by the president was, in his opinion, the only true and dignified course. it is that, and that only, which will certainly attain the object; and is the only one which will tend to unite cordially all parts of the union. but we ought to be prepared, in case of a failure, instantly to redress ourselves. this, instead of having an evil, would, in his opinion, have a good effect on the negotiation. it would show, that although we are willing amicably to adjust our differences, yet that we are not only resolved on, but prepared for that resort which cannot fail to restore our violated rights. with that view, he would offer the following resolutions, as substitutes for those proposed by the gentleman from pennsylvania. he moved that the whole of the resolutions be struck out, excepting the word "_resolved_," and the following be substituted in their place--after the word "_resolved_:" "that the president of the united states be, and he is hereby authorized, whenever he shall judge it expedient, to require of the executives of the several states to take effectual measures to organize, arm, and equip, according to law, and hold in readiness to march at a moment's warning, eighty thousand effective militia, officers included. _resolved_, "that the president may, if he judges it expedient, authorize the executives of the several states, to accept, as part of the detachment aforesaid, any corps of volunteers; who shall continue in service for such time, not exceeding ---- months, and perform such services as shall be prescribed by law. _resolved_, "that ---- dollars be appropriated for paying and subsisting such part of the troops aforesaid, whose actual service may be wanted, and for defraying such other expenses as, during the recess of congress, the president may deem necessary for the security of the territory of the united states. _resolved_, "that ---- dollars be appropriated for erecting at such place or places on the western waters, as the president may judge most proper, one or more arsenals." mr. clinton.--the importance of a free navigation of the mississippi has been duly appreciated by the government, and a constant eye has been kept upon it in our negotiations with foreign powers. an attempt was, indeed, made under the old confederation to barter it away for twenty-five years, which, however, was effectually controlled by the good sense and patriotism of the government. by the treaty of peace with great britain in , by the treaty of amity, commerce, and navigation with her in , and by the treaty of friendship, limits, and navigation with spain, in , the right of a free navigation of the mississippi is recognized, and declared to exist from its source to the ocean, in the citizens of the united states. by the d article of the treaty with spain, it is declared that, "in consequence of the stipulations contained in the th article, his catholic majesty will permit the citizens of the united states, for the space of three years from this time, to deposit their merchandise and effects in the port of new orleans, and to export them from thence without paying any other duty than a fair price for the hire of the stores. and his majesty promises either to continue this permission if he finds during that time that it is not prejudicial to the interests of spain; or, if he should not agree to continue it there, he will assign to them, on another part of the lands of the mississippi, an equivalent establishment." the d article, granting the right of deposit, is, therefore, founded upon the th article recognizing the right of free navigation, and is intended to give full and complete efficacy to it. by a proclamation of the intendant of the province of louisiana, dated the th of october last, the right of deposit is prohibited. the reason assigned for this daring interdiction is, that the three years for which it was granted having expired, it cannot be continued without an express order from the king of spain; and at the same time no equivalent establishment is assigned, according to the stipulations of the treaty. there can be no doubt but that the suspension of the right of deposit at new orleans, and the assignment of another place equally convenient, ought to have been contemporaneous and concurrent; that the conduct of the intendant is an atrocious infraction of the treaty, and that it aims a deadly blow at the prosperity of the western states; but it is extremely questionable whether it was authorized by the government of spain or not. on this subject i am free to declare that i entertain great doubts, which can only be cleared up by the course of events, or perhaps it will be enveloped in darkness. on the one hand, the terms of the proclamation, indicating a misunderstanding of the treaty, the remonstrances of the governor of the province, whose authority does not extend to commercial and fiscal affairs, over which the intendant has an exclusive control, and the prompt and decided assurances of the spanish minister near the united states, would induce a belief that the act of the intendant was unauthorized. on the other hand, it cannot readily be believed that this officer would assume such an immense responsibility, and encounter an event so big with important consequences, not only to his country but to himself, without knowing explicitly the intentions of his government. such, then, is the true state of the spanish aggression: an important right had been secured to our citizens by the solemnity of a treaty. this right had been withdrawn by an officer of the spanish government, and whether this aggression was directed by it or not, is not as yet known. other aggressions have, indeed, been stated by the honorable gentleman from pennsylvania, (mr. ross,) in order to darken the picture, and with the manifest design of exasperating our feelings, inflaming our passions, and prompting an immediate appeal to the sword. as to the nature, character, and tendency of the remedy proposed, there can be but one opinion. it proposes to enter the country of a foreign nation with a hostile force, and to seize a part of its territory. it is not preceded by a formal declaration, and cannot, therefore, come under the denomination of a solemn war, but it partakes of the character of a war not solemn. it answers to the definition of war, by _burlamaqui_, "a nation taking up arms with a view to decide a quarrel;" to that given by _vattel_, who represents it to be "that state in which a nation prosecutes its right by force." a state of general hostilities would as necessarily follow as an effect would follow a cause; no nation would submit to the irruption of a hostile army without repelling it by force; the proud castilian, as described by the gentleman from delaware, would revolt at the insult; the door of negotiation would be effectually closed, and as the appeal would be to arms in the first instance, so the controversy must be finally decided by the preponderance of force. it would, therefore, not only have impressed me with a more favorable opinion of the honorable mover's candor, but also of his decision and energy as a statesman, if he had spoken out boldly, and declared his real object. war is unquestionably his design--his wish. why, then, mask his proposition? why combine it with considerations connected with negotiation? why not furnish the american people at once with the real and the whole project of himself and his friends? if it is bottomed on patriotism and dictated by wisdom, it need not shrink from the touch of investigation--it will receive their approving voice, and be supported by all their force. the resolution is then to be considered as a war resolution; in no other light can it be viewed; in no other light ought it to be viewed; and in no other light will it be viewed by the intelligence of the country. in this point of view, i will proceed, said mr. c., to consider its justice and policy; its conformity with the laws and usage of nations, and the substantial interests of this country. i shall not attempt to occupy your attention by threadbare declamation upon the evils of war, by painting the calamities it inflicts upon the happiness of individuals, and the prosperity of nations. this terrible scourge of mankind, worse than the famine or pestilence, ought not to be resorted to until every reasonable expedient has been adopted to avert it. when aggressions have been committed by the sovereign or representatives of a nation, negotiation ought in all cases to be first tried, unless the rights of self-defence demand a contrary course. this is the practice of nations, and is enjoined by the unerring monitor which the god of nature has planted in every human bosom. what right have the rulers of nations to unsheath the sword of destruction, and to let loose the demon of desolation upon mankind, whenever caprice or pride, ambition or avarice, shall prescribe? and are there no fixed laws founded in the nature of things which ordain bounds to the fell spirit of revenge, the mad fury of domination, and the insatiable thirst of cupidity? mankind have not only in their individual character, but in their collective capacity as nations, recognized and avowed in their opinions and actions, a system of laws calculated to produce the greatest happiness of the greatest number. and it may be safely asserted, that it is a fundamental article of this code, that a nation ought not to go to war, until it is evident that the injury committed is highly detrimental, and that it emanated from the will of the nation charged with the aggression, either by an express authorization in the first instance, or by a recognition of it when called upon for redress, and a refusal in both cases to give it. a demand of satisfaction ought to precede an appeal to arms, even when the injury is manifestly the act of the sovereign; and when it is the act of a private individual, it is not imputable to his nation, until his government is called upon to explain and redress, and refuses; because the evils of war are too heavy and serious to be incurred, without the most urgent necessity; because remonstrance and negotiation have often recalled an offending nation to a sense of justice, and a performance of right; because nations, like individuals, have their paroxysms of passion, and when reflection and reason resume their dominion, will extend that redress to the olive-branch, which their pride will not permit them to grant to the sword; because a nation is a moral person, and, as such, is not chargeable with an offence committed by others, or where its will has not been consulted, the unauthorized conduct of individuals being never considered a just ground of hostility, until their sovereign refuses that reparation for which his right of controlling their actions, and of punishing their misconduct, necessarily renders him responsible. these opinions are sanctioned by the most approved elementary writers on the laws of nations. if i were called upon to prescribe a course of policy most important for this country to pursue, it would be to avoid european connections and wars. the time must arrive when we will have to contend with some of the great powers of europe, but let that period be put off as long as possible. it is our interest and our duty to cultivate peace, with sincerity and good faith. as a young nation, pursuing industry in every channel, and adventuring commerce in every sea, it is highly important that we should not only have a pacific character, but that we should really deserve it. if we manifest an unwarrantable ambition, and a rage for conquest, we unite all the great powers of europe against us. the security of all the european possessions in our vicinity will eternally depend, not upon their strength, but upon our moderation and justice. look at the canadas--at the spanish territories to the south--at the british, spanish, french, danish, and dutch west india islands--at the vast countries to the west, as far as where the pacific rolls its waves; consider well the eventful consequences that would result if we were possessed by a spirit of conquest; consider well the impression which a manifestation of that spirit will make upon those who would be affected by it. if we are to rush at once into the territory of a neighboring nation, with fire and sword, for the misconduct of a subordinate officer, will not our national character be greatly injured? will we not be classed with the robbers and destroyers of mankind? will not the nations of europe perceive in this conduct the germ of a lofty spirit and an enterprising ambition which will level them to the earth, when age has matured our strength and expanded our powers of annoyance, unless they combine to cripple us in our infancy? may not the consequences be, that we must look out for a naval force to protect our commerce; that a close alliance will result; that we will be thrown at once into the ocean of european politics, where every wave that rolls, and every wind that blows, will agitate our bark? is this a desirable state of things? will the people of this country be seduced into it by all the colorings of rhetoric, and all the arts of sophistry--by vehement appeals to their pride, and artful addresses to their cupidity? no, sir. three-fourths of the american people (i assert it boldly, and without fear of contradiction) are opposed to this measure. and would you take up arms with a millstone hanging around your neck? how would you bear up, not only against the force of the enemy, but against the irresistible current of public opinion? the thing, sir, is impossible; the measure is worse than madness; it is wicked beyond the powers of description. it is in vain for the mover to oppose these weighty considerations by menacing us with an insurrection in the western states, that may eventuate in their seizure of new orleans without the authority of government; their throwing themselves into the arms of a foreign power; or in a dissolution of the union. such threats are doubly improper--improper as they respect the persons to whom they are addressed, because we are not to be deterred from the performance of our duty by menaces of any kind, from whatever quarter they may proceed; and it is no less improper to represent our western brethren as a lawless, unprincipled banditti, who would at once release themselves from the wholesome restraints of law and order; forego the sweets of liberty, and either renounce the blessings of self-government, or, like goths and vandals, pour down with the irresistible force of a torrent upon the countries below, and carry havoc and desolation in their train. a separation by a mountain, and a different outlet into the atlantic, cannot create any natural collision between the atlantic and western states; on the contrary, they are bound together by a community of interests, and a similarity of language and manners--by the ties of consanguinity and friendship, and a sameness of principles. there is no reflecting and well-principled man in this country who can view the severance of the states without horror, and who does not consider it as a pandora's box, which will overwhelm us with every calamity; and it has struck me with not a little astonishment that, on the agitation of almost every great political question, we should be menaced with this evil. last session, when a bill repealing a judiciary act was under consideration, we were told that the eastern states would withdraw themselves from the union, if it should obtain; and we are now informed that, if we do not accede to the proposition before us, the western states will hoist the standard of revolt and dismember the empire. sir, these threats are calculated to produce the evils they predict, and they may possibly approximate the spirit they pretend to warn us against. they are at all times unnecessary, at all times improper, at all times mischievous, and ought never to be mentioned within these walls. mr. j. jackson, of georgia.--coming from a state, at the extreme of the union in the south, and excepting the states immediately interested in the navigation of the mississippi, the most concerned, on the present occasion, of any in the union, he hoped it would not be deemed improper in him to offer his sentiments on the resolution before the senate; for, sir, no event can affect the settlers on the mississippi, no change of masters can take place there, without the shock being felt on the frontiers of georgia. the nation which holds new orleans must eventually possess the floridas, and georgia cannot remain an indifferent spectator; in case of war, the blow struck on that river will be vibrated on the saint mary's, and the attack on the one will be seconded by an attack on the other. the gentlemen from kentucky and tennessee have not those fears expressed by the gentleman from pennsylvania; they have declared their citizens satisfied with negotiation in the first place, and the conduct pursued by the executive. he could say the same, as respects the citizens of the state he represents, and begged leave to read a letter on the subject, from a respectable gentleman of georgia, applauding the appointment of mr. monroe. [he here read a letter expressing the approbation generally expressed at the nomination.] that there has been an indignity offered to the united states by the spanish government of new orleans, he should not deny; so far, he joined the gentlemen on the other side, as not only to declare that sense of it, but to assert that the withdrawing the right of deposit, given under the fourth article of our treaty with spain, concluded at san lorenzo el real, prior to the pointing out another place for that purpose, is such a violation of our right, and such an insult to the dignity of the nation, as ought not to be put up with in silence. we ought, we are bound to demand a restoration of that right, and to secure it to our western citizens, let the risk be what it may, if it even extends to life and fortune. he cordially agreed with the gentleman who had preceded him, (mr. mason,) that it is a momentous subject; but could not consent to go at once to war, without trying, in the first place, every peaceable mode to obtain redress. the first part of the resolution declares, that the united states have an indisputable right to the free navigation of the river mississippi, and to a convenient place of deposit for their produce and merchandise, in the island of new orleans. now, sir, the former part of this resolution is not affected by any proceedings of the spanish government. you are as perfectly in possession of the right as you ever were; your vessels are at this moment freely navigating that river; you have not heard of a single interruption; you have not learnt that the spaniards, so far from interrupting that navigation, have ever doubted your right. why then, sir, resolve on the assertion of rights which are not questioned, but of which you are completely in possession! he could compare it to no other case than that of a man in private life, in peaceable possession of his house, resolving on and publishing his own right to it, and thereby rousing the suspicions of his neighbors to doubt the title to it. passing over the latter division of the first resolution, and which he acknowledged to be the fact, let us consider the second proposition, "that the late infraction of such their unquestionable right, is an aggression hostile to their honor and interest." sir, after a declaration of this kind, can you retract? you cannot; it is in fact a declaration of war itself. many of the courts of europe would consider it so, and have engaged in war for less cause of offence than this resolution contains. you pronounce at once, without knowing whether the proceedings at new orleans were sanctioned by the court of spain, that that nation is in a state of hostility against your honor and interest, which declaration, coupled with the following resolution, "that it does not consist with the dignity or safety of this union to hold a right so important by a tenure so uncertain," is a direct insult to that nation. but if war is not to be found in those resolutions, is it not in the fifth resolution, "that the president be authorized to take immediate possession of such place or places in the said island, or the adjacent territories, as he may deem fit or convenient." is this not war? if it be not, he knew not what war was! and now let us inquire, if we should be justified in adopting those measures, on the grounds of public or private justice, or the laws of nations. sir, the going to war has always been considered, even among barbarous nations, a most serious thing; and it has not been undertaken without the most serious deliberation. it was a practice among the romans, prior to undertaking a war, to consult the _faciales_ on the justice of it; and, after it had been declared just, to refer it to the senate, to judge of the policy of it; and unless the justice and the policy were both accorded in, the war was not undertaken. if this was the case then among barbarous nations, shall we, who call ourselves a civilized nation, not well weigh the justice and the policy of going to war, before we undertake it? as to national honor and dignity, he believed we have all a proper sense of it, and he would be one of the last on this floor to put up with insult and indignity from any nation; but, as much as we had heard of it, he did not think we ought, without negotiation, to resent every injury by war. in many cases, national honor is only a convertible term for national interest; and he begged leave to relate an anecdote of a celebrated soldier on this head. after the failure of the attempted storm of savannah, in the year , count d'estaing, who was wounded in the attack, and lay in that situation about five miles from savannah, was visited by governor rutledge and other gentlemen of south carolina and georgia. the governor having perceived some movements in camp indicative of a retrogade motion, told the count that his own honor and the honor of france were concerned in his remaining and taking the city. the count very mildly replied, "gentlemen, if my honor is to be lost by not taking the city, it is lost already; but i deem my honor to consist in the honor of my country, and that honor is my country's interest!" the time of operation in the west indies was arrived, and the count re-embarked his troops. now, sir, is it not our duty to consult our country's interest, before we take this rash step, which we cannot recall? peace is the interest of all republics, and war their destruction; it loads and fetters them with debt, and entangles not only the present race, but posterity. peace, sir, has been the ruling policy of the united states throughout all her career. if we show the citizens that we are not willing to go to war, and load them with taxes, they will all be with us, when a necessity for war arrives. what, sir, was the policy of america, from the commencement of the revolution? at that day, did we hastily go to war? no; we tried every peaceable means to avoid it, and those means induced a unanimity in the people. at the commencement many states were exceedingly divided, in some a majority were against us; yet, seeing the moderation and justice of our measures, and the rashness and tyranny of the british cabinet, they came over to our side, and became the most zealous among us. at the present moment, sir, the people are averse to war, they are satisfied with the steps of the executive, they wish negotiation. if you adopt these resolutions, they will be still divided; if you negotiate, and fail in that negotiation--if you cannot obtain a redress of the injury which they feel as well as you, they will go all lengths with you, and be prepared for any event; you will have this advantage, you will be unanimous, and america united is a match for the world. in such a case, sir, every man will be anxious to march, he would go himself if called on, and whether the sluggish spaniard or the french grenadier commands new orleans, it must fall; they will not be able to resist the brave and numerous hosts of our western brethren, who are so much interested in the injury complained of. he was himself of opinion that new orleans must belong to the united states; it must come to us in the course of human events, although not at the present day; for he did not wish to use force to obtain it, if we could get a redress of injury; yet it will naturally fall into our hands by gradual but inevitable causes, as sure and certain as manufactures arise from increased population and the plentiful products of agriculture and commerce. but let it be noticed, that if new orleans by a refusal of justice falls into our hands by force, the floridas, as sure as fate, fall with it. good faith forbids encroachment on a pacific ally; but if hostility shows itself against us, interest demands it; georgia in such case could not do without it. god and nature have destined new orleans and the floridas to belong to this great and rising empire. as natural bounds to the south, are the atlantic, the gulf of mexico, and the mississippi, and the world at some future day cannot hold them from us. thursday, february . _mississippi question._ agreeably to the order of the day, the senate resumed the consideration of the resolutions respecting the indisputable right of the united states to the free navigation of the mississippi, together with the proposed amendments thereto. mr. wells, of delaware, said,--gentlemen have persuaded themselves that the conduct of the intendant is not authorized by the spanish or french government; but what reason have they assigned us in support of this opinion? they tell us of the friendly assurances received from the minister of his catholic majesty resident near our government; and they place considerable stress upon the circumstance of the governor of new orleans disapproving of what the intendant has done. i will not stop to speak of the imprudence of reposing themselves upon the assurances of a minister, perhaps expressly instructed to mislead them. but why have they trusted to the imaginary collision of sentiment between the governor and intendant of new orleans? do not gentlemen know that our government is in possession of testimony, demonstrating beyond all kind of doubt, that this is not the fact? have they not seen the letter of the governor of new orleans to the governor of the mississippi territory? in this letter i learn that the governor comes out and acknowledges his co-operation with the intendant, justifies the breach of the treaty, and declares that these instruments cease their binding force the moment it suits the interest of either party to break through them. alas! the history of the world furnishes us too many evidences of this melancholy truth. but this is the first time that any nation has had the hardihood to avow it. no, sir, even carthage herself, who became proverbial for her disregard of treaties, never attained to a point so profligate. if i am incorrect in my statement, honorable gentlemen, who have easier access to the sources of official information than is permitted to us, will set me right. why has this document been so sedulously kept from the public eye? why it should be even now so carefully locked up, is a mystery not for me to unravel. i see no other course for us to pursue than that pointed out by the resolutions. our interests, our honor, and our safety, require it to be adopted. i am aware that the alarm of war will be rung through the country. i know full well the pains that will be taken to impress an opinion upon our fellow-citizens that we are the friends of war. this we cannot help: the danger with which our country is threatened, will not permit us to shrink from the discharge of our duty, let the consequences to ourselves be what they may. let me ask you with my honorable friend from new jersey, (mr. dayton,) what stronger evidence can we give you of the sincerity of our intentions than the resolutions themselves? so far from cramping, or diminishing the power of gentlemen opposed to us, in a crisis like the present, we only offer to strengthen their own hands. had the advice of an honorable gentleman near me (mr. morris) been listened to, when you were disbanding your army, this crisis would not have happened. had you then posted at the natchez, as he recommended, a thousand soldiers, the navigation of the mississippi would not now have been interrupted. he foretold you what would happen, and his prediction has been literally fulfilled. there is but one fault i find with these resolutions, which is, they do not go far enough. if i could obtain a second, i would move an amendment explicitly authorizing the taking possession of both the floridas as well as the island of new orleans. in one respect i entirely accord with the honorable gentleman from georgia, (mr. jackson,) and i admire the manly and decisive tone in which he has spoken upon this subject. we both agree that the floridas must be attached to the united states; but we differ in point of time. the violent aggression committed upon our rights, and the extent of the danger with which we are threatened, in my humble opinion, would amply justify our taking possession of them immediately. look at the relative situation of georgia, the mississippi territory, and the floridas, and it will require very little of the spirit of prophecy to foretell that we shall, ere long, be compelled to possess ourselves of them in our own defence. mr. gouverneur morris.--mr. president, my object is peace. i could assign many reasons to show that this declaration is sincere. but can it be necessary to give this senate any other assurance than my word? notwithstanding the acerbity of temper which results from party strife, gentlemen will believe me on my word. i will not pretend, like my honorable colleague, (mr. clinton,) to describe to you the waste, the ravages, and the horrors of war. i have not the same harmonious periods, nor the same musical tones; neither shall i boast of christian charity, nor attempt to display that ingenuous glow of benevolence so decorous to the cheek of youth, which gave a vivid tint to every sentence he uttered; and was, if possible, as impressive even as his eloquence. but, though we possess not the same pomp of words, our hearts are not insensible to the woes of humanity. we can feel for the misery of plundered towns, the conflagration of defenceless villages, and the devastation of cultured fields. turning from these features of general distress, we can enter the abodes of private affliction, and behold the widow weeping, as she traces, in the pledges of connubial affection, the resemblance of him whom she has lost for ever. we see the aged matron bending over the ashes of her son. he was her darling; for he was generous and brave, and therefore his spirit led him to the field in defence of his country. we can observe another oppressed with unutterable anguish: condemned to conceal her affection; forced to hide that passion which is at once the torment and delight of life; she learns that those eyes which beamed with sentiment, are closed in death; and his lip, the ruby harbinger of joy, lies pale and cold, the miserable appendage of a mangled corpse. hard, hard indeed, must be that heart which can be insensible to scenes like these, and bold the man who dare present to the almighty father a conscience crimsoned with the blood of his children. yes, sir, we wish for peace; but how is that blessing to be preserved? i shall here repeat a sentiment i have often had occasion to express. in my opinion, there is nothing worth fighting for, but national honor; for in the national honor is involved the national independence. i know that a state may find itself in such unpropitious circumstances, that prudence may force a wise government to conceal the sense of indignity. but the insult should be engraven on tablets of brass, with a pencil of steel. and when that time and chance, which happen to all, shall bring forward the favorable moment, then let the avenging arm strike him. it is by avowing and maintaining this stern principle of honor, that peace can be preserved. but let it not be supposed that any thing i say has the slightest allusion to the injuries sustained from france, while suffering in the pangs of her revolution. as soon should i upbraid a sick man for what he might have done in the paroxysms of disease. nor is this a new sentiment; it was felt and avowed at the time when these wrongs were heaped on us, and i appeal for the proof to the files of your secretary of state. the destinies of france were then in the hands of monsters. by the decree of heaven she was broken on the wheel, in the face of the world, to warn mankind of her folly and madness. but these scenes have passed away. on the throne of the bourbons is now seated the first of the gallic cæsars. at the head of that gallant nation is the great--the greatest--man of the present age. it becomes us well to consider his situation. the things he has achieved, compel him to the achievement of things more great. in his vast career, we must soon become objects to command attention. we too, in our turn, must contend or submit. by submission we may indeed have peace, alike precarious and ignominious. but is this the peace which we ought to seek? will this satisfy the just expectation of our country? no. let us have peace permanent, secure, and, if i may use the term, independent. peace which depends, not on the pity of others, but on our own force. let us have the only peace worth having, a peace consistent with honor. before i consider the existing state of things, let me notice what gentlemen have said in relation to it. the honorable member from kentucky has told us, that indeed there is a right arrested, but whether by authority or not is equivocal. he says the representative of spain verily believes it to be an unauthorized act. my honorable colleague informs us there has been a clashing between the governor and intendant. he says we are told by the spanish minister it was unauthorized. notwithstanding these assurances, however, my honorable colleague has, it seems, some doubts; but nevertheless he presumes innocence, for my colleague is charitable. the honorable member from maryland goes further. he tells us the minister of spain says, the intendant had no such authority, and the minister of france, too, says there is no such authority. sir, i have all possible respect for those gentlemen, and every proper confidence in what they may think proper to communicate. i believe the spanish minister has the best imaginable disposition to preserve peace; being indeed the express purpose for which he was sent among us. i believe it to be an object near to his heart, and which has a strong hold upon his affections. i respect the warmth and benevolence of his feelings, but he must pardon me that i am deficient in courtly compliment; i am a republican, and cannot commit the interests of my country to the goodness of his heart. what is the state of things? there has been a cession of the island of new orleans and of louisiana to france. whether the floridas have also been ceded is not yet certain. it has been said, as from authority, and i think it probable. now, sir, let us note the time and the manner of this cession. it was at or immediately after the treaty of lunéville, at the first moment when france could take up a distant object of attention. but had spain a right to make this cession without our consent? gentlemen have taken it for granted that she had. but i deny the position. no nation has a right to give to another a dangerous neighbor without her consent. this is not like the case of private citizens, for there, when a man is injured, he can resort to the tribunals for redress; and yet, even there, to dispose of property to one who is a bad neighbor is always considered as an act of unkindness. but as between nations, who can redress themselves only by war, such transfer is in itself an aggression. he who renders me insecure; he who hazards my peace, and exposes me to imminent danger, commits an act of hostility against me, and gives me the rights consequent on that act. suppose great britain should give to algiers one of the bahamas, and contribute thereby to establish a nest of pirates near your coasts, would you not consider it as an aggression? suppose, during the late war, you had conveyed to france a tract of land along hudson's river, and the northern route by the lakes into canada, would not britain have considered and treated it as an act of direct hostility? it is among the first limitations to the exercise of the rights of property, that we must so use our own as not to injure another; and it is under the immediate sense of this restriction that nations are bound to act toward each other. but it is not this transfer alone. there are circumstances both in the time and in the manner of it which deserve attention. a gentleman from maryland (mr. wright) has told you, that all treaties ought to be published and proclaimed for the information of other nations. i ask, was this a public treaty? no. was official notice of it given to the government of this country? was it announced to the president of the united states, in the usual forms of civility between nations who duly respect each other? it was not. let gentlemen contradict me if they can. they will say perhaps that it was the omission only of a vain and idle ceremony. ignorance may indeed pretend that such communication is an empty compliment, which, established without use, may be omitted without offence. but this is not so. if these be ceremonies, they are not vain, but of serious import, and are founded on strong reason. he who means me well acts without disguise. had this transaction been intended fairly, it would have been told frankly. but it was secret because it was hostile. the first consul, in the moment of terminating his differences with you, sought the means of future influence and control. he found and secured a pivot for that immense lever, by which, with potent arm, he means to subvert your civil and political institutions. thus, the beginning was made in deep hostility. conceived in such principles, it presaged no good. its bodings were evil, and evil have been its fruits. we heard of it during the last session of congress, but to this hour we have not heard of any formal and regular communication from those by whom it was made. has the king of spain, has the first consul of france, no means of making such communication to the president of the united states? yes, sir, we have a minister in spain; we have a minister in france. nothing was easier, and yet nothing has been done. our first magistrate has been treated with contempt; and through him our country has been insulted. with that meek and peaceful spirit now so strongly recommended, we submitted to this insult, and what followed? that which might have been expected; a violation of our treaty. an open and direct violation by a public officer of the spanish government. this is not the case cited from one of the books. it is not a wrong done by a private citizen, which might, for that reason, be of doubtful nature. no; it is by a public officer,--that officer, in whose particular department it was to cause the faithful observance of the treaty which he has violated. we are told indeed that there was a clashing of opinion between the governor and the intendant. but what have we to do with their domestic broils? the injury is done, we feel it. let the fault be whose it may, the suffering is ours. but, say gentlemen, the spanish minister has interfered to correct this irregular procedure. sir, if the intendant was amenable to the minister, why did he not inform him of the step he was about to take, that the president of the united states might seasonably have been apprised of his intention, and given the proper notice to our fellow-citizens? why has he first learnt this offensive act from those who suffer by it? why is he thus held up to contempt and derision? if the intendant is to be controlled by the minister, would he have taken a step so important without his advice? common sense will say no. but, the bitter cup of humiliation was not yet full. smarting under the lash of the intendant, the minister soothes you with assurances, and sends advice-boats to announce your forbearance. but while they are on their way, new injury and new insult are added. the intendant, as if determined to try the extent of your meekness, forbids to your citizens all communication with those who inhabit the shores of the mississippi. though they should be starving, the spaniard is made criminal who should give them food. fortunately, the waters of the river are potable, or else we should be precluded from the common benefits of nature, the common bounty of heaven. what then, i ask, is the amount of this savage conduct? sir, it is war. open and direct war. and yet gentlemen recommend peace, and forbid us to take up the gauntlet of defiance. will gentlemen sit here and shut their eyes to the state and condition of their country? i shall not reply to what has been said respecting depredations on commerce, but confine myself to objects of which there can be no shadow of doubt. here is a vast country given away, and not without danger to us. has a nation a right to put these states in a dangerous situation? no, sir. and yet it has been done, not only without our consent previous to the grant, but without observing the common forms of civility after it was made. is that wonderful man who presides over the destinies of france, ignorant or unmindful of these forms? see what was done the other day. he directed his minister to communicate to the elector of bavaria, his intended movements in switzerland, and their object. he knew the elector had a right to expect that information, although the greater part of swabia lies between his dominions and switzerland. and this right is founded on the broad principles already mentioned. having thus considered the effect of this cession upon the united states, in a general point of view, let us now examine it more particularly, as it regards the greater divisions of our country, the western, the southern, the middle, and the eastern states. i fear, sir, i shall detain you longer than i intended, certainly longer than the light of day will last, notwithstanding my effort to comprise what i have to say in the smallest compass. as to the western states, the effects will be remote and immediate. those more remote may be examined under the twofold aspect of peace and war. in peace they will suffer the diminution of price for their produce. the advantage of supplying the french, dutch, and spanish colonies, may at first sight lead to a different opinion; but when the port of new orleans is shut to all but french ships, there will no longer be that competition which now exists, and which always results in the highest price that commodities can bear. the french merchants have neither the large capital, nor have they the steady temper and persevering industry which foster commerce. their invariable object in trade, is to acquire sudden wealth by large profit; and if that cannot be done, they abandon the pursuit for some new project. certain of the market, and certain of the increasing supply, they will prescribe the price, both to those who cultivate, and to those who consume. such will be the effect in peace. in a war with great britain, the attention of her fleets to cut off supplies from her enemies, must necessarily affect the price of produce in a still greater degree; and in a war with france it will bear no price at all, until new orleans shall be wrested from their grasp. add to this the danger and the devastation from the troops of that country, aided by innumerable hosts of savages from the western wilds. such being the evident effects to be produced in times not far remote, the present evil follows from the anticipation of them. the price of land must be reduced, from the certainty that its produce will become less valuable. the flood of emigration to those fertile regions must cease to flow. the debts incurred in the hope of advantageous sales, must remain unpaid. the distress of the debtor must then recoil on his creditor, and, from the common relations of society, become general. what will be the effect on the southern states? georgia, carolina, and the mississippi territory are exposed to invasion from the floridas and new orleans. there are circumstances in that portion of america which render the invasion easy, and the defence difficult. pensacola, though the climate be warm, is among the healthiest spots on earth. not only a large garrison, but an army may remain there without hazard. at pensacola and st. augustine, forces may be assembled to operate in that season of the year, when the morasses which separate them from our southern frontier no longer breathe pestilence. by what are those armies to be opposed? will you call the militia from the north to assist their southern brethren? they are too remote. will you secure their seasonable aid, bring them early to the fields they are ordered to defend? they must perish. the climate, more fatal than the sword, will destroy them before they see their foe. the country adjoining to our southern frontier is now in possession of the most numerous tribes of savages we are acquainted with. the access to it from new orleans and the floridas is easy and immediate. the toys and gewgaws manufactured in france, will be scattered in abundance, to win their affections, and seduce them from their present connection. the talents of the french to gain the good will of the savages is well known, and the disposition of those uncultured men for war, is equally notorious. here then is a powerful instrument of destruction, which may be used against you with ruinous effect. besides, what is the population of the southern states? do you not tremble when you look at it? have we not within these few days passed a law to prevent the importation of certain dangerous characters? what will hinder them from arriving in the floridas, and what can guard the approach from thence to our southern frontier? these pernicious emissaries may stimulate with a prospect of freedom the miserable men who now toil without hope. they may excite them to imitate a fatal example, and to act over those scenes which fill our minds with horror. when the train shall be laid; when the conspiracy shall be ripe; when the armies of france shall reach your frontier, the firing of the first musket will be a signal for general carnage and conflagration. if you will not see your danger now, the time must soon arrive when you shall feel it. the southern states being exposed to such imminent danger, their representatives may be made to know, that a vote given in congress shall realize the worst apprehensions. you will then feel their danger even on this floor. let us now consider the consequence of the cession we complain of, to other nations, and this we may do generally, and then more especially as to those who have a direct and immediate interest in the transaction. in a general view, the first prominent feature is the colossal power of france. dangerous to europe and to the world, what will be the effect of a great increase of that power? look at europe! one half of it is blotted from the list of empire. austria, russia, prussia, and britain, are the only powers remaining, except sweden and denmark, and they are paralyzed. where is italy, switzerland, flanders, and all germany west of the rhine? gone; swallowed up in the empire of the gauls. holland, spain, portugal, reduced to a state of submission and dependence. what is the situation of the powers that remain? austria is cut off from italy, the great object of her ambition for more than three centuries; long the rival of france, long balancing with the bourbons the fate of europe, she must now submit, and tacitly acknowledge to the world the superiority of her foe, and her own humiliation. prussia, under the auspices of the great frederick, was at the head of a germanic league to balance the imperial power. though united with austria for a moment in the hollow league of the coalition, she has, like austria, been actuated by a blind jealousy, and favoring the operations of france for the ruin of her rival, expected to share largely in the general spoil. in this fond hope she is disappointed; she now sees the power of france at her door. there is not a fortress from the rhine to the baltic, except magdeburgh, which the first consul may leave on his left. the fertile plains near leipsic contain the magazines for his armies when he shall think proper to march to berlin. westphalia and lower saxony are open on the side of flanders and holland. the maine presents him a military road to the borders of bohemia. by the necker he approaches ulm, and establishes himself on the danube.[ ] these rivers enable him to take the vast resources of his wide domain to the point where he may wish to employ them. menacing at pleasure his neighbors, he is himself secured by a line of fortresses along his whole frontier. switzerland, which was the only feeble point of his defence, and which separated his gallic and italian dominions, has lately been subjected. the voice you now hear, warned the swiss of their fate more than eight years ago. the idea seemed then extravagant; but realized, it appears but as a necessary incident. russia is deprived of her influence in germany, and thereby of a principal instrument by which her policy might operate on the great powers of the south. the germanic body is indeed in the hand of the first consul. three new electors along the rhine are under the mouths of his cannon. they dare not speak. speak! none dare speak. they dare not _think_ any thing inconsistent with his wishes. even at their courtly feasts they sit like damocles, destruction suspended over their heads by a single hair. would you know the sentiment of england? look at the debates. in the two houses of parliament they speak their fears. such being the general sentiment of europe, can it be supposed that they will view without anxiety a new extension of that power and dominion, the object of their hatred and apprehension? will it be said that there is a security to the freedom of mankind from the moderation with which this enormous power is to be exercised? vain delusion! this power is not the result of accident. at the moment when france dethroned her sovereign, it was easy to foresee that a contest must ensue in which her existence would be staked against the empire of the world. if not conquered by surrounding princes, (and the hope of such conquest, unless by the aid of her own citizens, was idle,) her numerous armies acquiring discipline must eventually conquer. she had the advantages of situation, and those which result from union, opposed to councils uncertain and selfish. it was easy also to foresee that, in the same progress of events, some fortunate soldier would seat himself on the vacant throne; for the idea of a french republic was always a ridiculous chimera. buonaparte has placed himself at the head of that nation by deeds which cast a lustre on his name. in his splendid career he must proceed. when he ceases to act he will cease to reign. whenever in any plan he fails, that moment he falls. he is condemned to magnificence. to him are forbidden the harmonies and the charities of social life. he commands a noble and gallant nation, passionately fond of glory. that nation stimulates him to glorious enterprise, and, because they are generous and brave, they ensure his success. thus the same principle presents at once the object and the means. impelled by imperious circumstances, he rules in europe, and he will rule here also, unless by vigorous exertion you set a bound to his power. i have trespassed on your patience more than i wished, although, from the lateness of the hour, much has been omitted of what i ought to have said. i have endeavored to show that, under the existing circumstances, we are now actually at war, and have no choice but manly resistance or vile submission. that the possession of this country by france is dangerous to other nations, but fatal to us. that it forms a natural and necessary part of our empire; that, to use the strong language of the gentleman near me, it is joined to us by the hand of the almighty, and that we have no hope of obtaining it by treaty. if, indeed, there be any such hope, it must be by adopting the resolutions offered by my honorable friend. sir, i wish for peace--i wish the negotiation may succeed, and therefore i strongly urge you to adopt those resolutions. but though you should adopt them, they alone will not ensure success. i have no hesitation in saying that you ought to have taken possession of new orleans and the floridas the instant your treaty was violated. you ought to do it now. your rights are invaded--confidence in negotiation is vain; there is therefore no alternative but force. you are exposed to imminent present danger. you have the prospect of great future advantage. you are justified by the clearest principles of right. you are urged by the strongest motives of policy. you are commanded by every sentiment of national dignity. look at the conduct of america in her infant years, when there was no actual invasion of right, but only a claim to invade. she resisted the claim; she spurned the insult. did we then hesitate? did we then wait for foreign alliance? no; animated with the spirit, warmed with the soul of freedom, we threw our oaths of allegiance in the face of our sovereign, and committed our fortunes and our fate to the god of battles. we then were subjects. we had not then attained to the dignity of an independent republic. we then had no rank among the nations of the earth. but we had the spirit which deserved that elevated station. and now that we have gained it, shall we fall from our honor? sir, i repeat to you that i wish for peace--real, lasting, honorable peace. to obtain and secure this blessing, let us by a bold and decisive conduct convince the powers of europe that we are determined to defend our rights; that we will not submit to insult; that we will not bear degradation. this is the conduct which becomes a generous people. this conduct will command the respect of the world. nay, sir, it may rouse all europe to a proper sense of their situation. they see that the balance of power on which their liberties depend, is, if not destroyed, in extreme danger. they know that the dominion of france has been extended by the sword over millions who groan in the servitude of their new masters. these unwilling subjects are ripe for revolt. the empire of the gauls is not like that of rome, secured by political institutions. it may yet be broken. but whatever may be the conduct of others, let us act as becomes ourselves. i cannot believe with my honorable colleague, that three-fourths of america are opposed to vigorous measures. i cannot believe that they will meanly refuse to pay the sums needful to vindicate their honor and support their independence. sir, this is a libel on the people of america. they will disdain submission to the proudest sovereign on earth. they have not lost the spirit of seventy-six. but, sir, if they are so base as to barter their rights for gold, if they are so vile that they will not defend their honor, they are unworthy of the rank they enjoy, and it is no matter how soon they are parcelled out among better masters. friday, february . _mississippi question._ the senate resumed the consideration of the resolutions respecting the indisputable right of the united states to the free navigation of the mississippi, together with the proposed amendment thereto. mr. anderson (of tennessee) said he rose with much diffidence, after the very able discussion which the subject had already undergone; after so many men distinguished among the first in our country had treated it with so much ability, he could not expect to furnish many new facts or observations on the subject. but coming from that part of the country which is particularly interested in the discussion, he felt himself particularly bound to offer a few remarks, which some erroneous statements that had fallen in debate, from the gentleman from delaware, (mr. white,) particularly called for. he would, while he was up, endeavor to add a few observations on the resolutions. the first of the resolutions appeared to him to be introduced merely with a view to involve the members who were opposed to hostile measures in a dilemma. it was the assertion of a truth which no one would deny, but it was connected with other resolutions or assertions, which must from propriety bring the whole under a negative vote. taking the naked proposition that we have a right to the place of deposit, we all agree; that it has been suspended, we are equally agreed; but there we stop; by prefacing their resolutions with these truths, they expect either to induce us to vote for other things repugnant to our judgment, or afford room for the imputation of wrong motives and clamor abroad. but we are not to be led astray in this way, nor are the people of this country to be so deceived. on the first organization of the government, the most earnest attention was directed to that river; and it is now as much an object of the care of government as at any period since we have been an independent people. gentlemen have not, therefore, represented the matter with that candor which the seriousness of the subject demanded. the navigation of the mississippi has not been infringed on the present occasion, though the arguments of all, and the assertions of some, went to the extreme on that point. the river, he repeated, was and continues to be open, and he could not discover the utility of our declaring our right to the free navigation when we are in full unmolested possession of the right. he could indeed discover something beside utility; he could see a design nowise founded. the gentlemen expected with them the votes of the western members; they expected to play upon our passions, and to place us between the danger of unpopularity and the sense of personal feeling, in a case of a critical nature. but gentlemen would find themselves mistaken to the utmost; though he felt himself, in common with other western members, responsible to his constituents, yet he would on all occasions where the sense of right impressed itself strongly on him, risk popularity to do right. on this occasion he saw no danger of his popularity, because, although he was aware that the people whom he represented were dissatisfied, they respected their government and themselves too much to countenance any means that were not honorable and just, to obtain the deposit right. the resolutions called upon us to declare the deprivation of the right of deposit to be hostile to our honor and interests. on this there were a variety of opinions; and it appears to be agreed (for it was not contradicted by any) that the act of an individual unauthorized cannot be either a cause of war, or the act of the government of which he is an officer. no gentleman has positively declared the act to be authorized by spain. we have the best evidence that the case will admit of, that it has not been authorized. as the act of an individual, therefore, it cannot affect the honor of this country. that her interests are affected is agreed on all hands; but then the due course of proceeding has been adopted, and redress is to be expected. if it should be denied us, we have our remedy, and it is then that it will become a point of honor. but now, as had been well said by his friend from georgia, (mr. jackson,) if we were to rashly declare the act of the individual contrary to our national honor, we could not retrograde; and if spain should not do us justice, he trusted that we should then take our strong ground, and not give way a step. this would be the effect. gentlemen do not know the american character--they underrate it: there is not that levity in it which gentlemen suppose, capable of being lightly led astray. the character of america is fixed, and when real necessity calls for their exertions, the people will require no artificial excitement. from time to time, he had heard in that house and in other places, the most wanton and cruel aspersions cast upon the people of the western country. he knew not how gentlemen could reconcile their pretensions of regard for the western people with the odious imputations which were constantly cast upon their attachment. the whole of the opposition appeared to concur in their illiberality towards the western people, at the very moment they were professing so much zeal for their good. the late president of the united states had in the most unwarrantable manner told him, that the western people were ready to hold out their hands to the first foreigner that should offer them an alliance; the same sentiment is echoed here, only in different terms. but such vile imputations attach not to the western people, but to those who employed them. the western people are americans, who wasted the spring-tide and summer of their days in the cause of their country; men who, having spent their patrimony in establishing their country's independence, travelled to the wilderness, to seek a homestead for themselves and children. was it honorable, was it consistent with those labored efforts for their good, which we are told actuate gentlemen, to calumniate them in so unworthy a fashion? gentlemen appear by their gestures to deny that they have been guilty of this calumny. but my charge against them is not of that evasive or double character which they deal in; the words they have used i have taken down--they are; "the french would draw the western people into an alliance," "the western people would be influenced by the insidious emissaries of france," "corruption would find its way among them, and be transferred even to that floor." is this not calumny of the darkest hue? is this the way in which six hundred thousand men are to be stigmatized? men, a greater proportion of whom are soldiers who fought for the independence of america, than ever was to be found in the whole state (delaware) to which the gentleman belongs. during twelve years, eight of which one of the first men the world ever saw, or perhaps ever will see, presided over our affairs, the policy of pacific negotiation prevailed in our councils; a policy somewhat more hostile in its aspect was attempted by his successor, but still negotiation succeeded negotiation, and success attended perseverance. in the early stages of our existence, before we were yet a nation, it is indeed true that we drank of the cup of humiliation, even to the dregs; it was the natural effect of our dependent situation; of the prejudices that bound us, and from which great violence was necessary, and was employed to detach us. such humiliation would not befit us now; no motives exist to demand or justify it: we were then a part of another nation, and connected with another government; we began by petition in the terms of abjectness and humility, which are incidental to subjects of monarchs; which are always necessary, in order to conceal the spirit and the presumption, of which monarchs are always jealous in their subjects; but abject as we appeared, the very temper and phrase of humility deceived our oppressor into a belief that we were too lowly to entertain the manly temper of resistance against oppression. yet our precursory and reiterated humility did not unnerve our arms nor subdue our minds, when it became necessary to fling off the trammels of oppression. the result, we now enjoy. when that very power from which we had detached ourselves, refused to carry her treaty into execution, did we then go to war? she held several of our fortresses; we were entitled by every right of nature, and the usage of nations, to seize upon them; not like the right of deposit, a privilege enjoyed on the territory of another, but fortresses held, and in military array on our own territory. did we then make war? no, we negotiated; and when another power subsequently attacked us, we pursued the same course with the like success. the gentleman (mr. ross) has told us that when president washington came into office, he would not have negotiated for the mississippi, had he not found the negotiation already begun. the gentleman has not told us upon what authority he states this, or how he came to possess the knowledge of a fact of which all others are ignorant; a fact, too, contradictory of his practice through life, and of the principles of that legacy which he left to his country. mr. s. t. mason, said, that if he were to consult the state of his health, he should not trouble the senate with any remarks on the resolutions before them. but he had heard in the course of debate, certain observations, such strange and paradoxical arguments; insinuations and assertions of such a nature as ought not to be passed unnoticed. doubtful whether his strength would sustain him through the whole scope which in better health he should take, he would endeavor to limit his arguments to a few of the most prominent particulars, which excited his attention, and to the delivery of his reasons for preferring the substitute propositions of his friend from kentucky, (mr. breckenridge,) to the original resolutions of the gentleman from pennsylvania. he had heard, in the debate, many professions of confidence in the executive. he was very glad to hear such unusual expressions from that quarter. however, it was entitled to its due weight--what that was he would not inquire; but this he would say, that this unexpected ebullition of confidence went very much farther than he should be disposed to carry his confidence in any man or any president whatever. gentlemen tell us that they are willing to intrust to the executive the power of going to war, or not, at his discretion. wonderful indeed is this sudden disposition to confidence? why do not gentlemen give away that which they have some authority or right to bestow? who gave them the power to vest in any other authority than in congress the right of declaring war? the framers of this constitution had too much experience to intrust such a power to any individual; they early and wisely foresaw, that though there might be men too virtuous to abuse such a power, that it ought not to be intrusted to any; and nugatory would be the authority of the senate, if we could assume the right of transferring our constitutional functions to any man or set of men. it was a stretch of confidence which he would not trust to any president that ever lived, or that will live. he could not as one, without treason to the constitution, consent ever to relinquish the right of declaring war to any man, or men, beside congress. we are told that negotiation is not the course which is proper for us to pursue. but to this he should reply, that such was the usage of all civilized nations; and, however gentlemen might attempt to whittle away the strong ground taken by his friend from new york, he had shown, in a manner not to be shaken, that negotiation before a resort to the last scourge of nations, is the course most consistent with good policy, as well as with universal practice. the gentleman from pennsylvania had indeed told us that great britain had departed from that practice; unfortunately for great britain and the gentleman's argument, he told us, at the same time, that she had sustained a most serious injury by her injustice and precipitation. she went to war to seek retribution, and after fighting a while, she left off, and forgot to ask the retribution for which she went to war! and this is the example held up for our imitation; because great britain violated the law of nations, we are called upon to do so too! we are told also that great britain commenced war during our revolution, against the dutch, without any previous notification; that she did the same in the late war with france, and in both cases seized on the ships in her harbors; that is, like a professional bully, she struck first, and then told them she would fight them--and this is the gracious example held up to us. the merits of the different propositions consisted in this, that by the amendments we propose to seek the recourse of pacific nations--to follow up our own uniform practice; we pursue, in fact, the ordinary and rational course. the first resolutions go at once to the point of war. this was openly and fairly acknowledged by the gentleman from new york (mr. g. morris.) the gentleman from pennsylvania, (mr. ross,) indeed, told us that it is not war--it was only going and taking peaceable possession of new orleans! he did not before think the gentleman felt so little respect for the senate, or estimated their understandings so much inferior to his own, as to call such a measure an act of peace! how did the gentleman mean to go, and how take peaceable possession? would he march at the head of the _posse comitatus_? no! he would march at the head of fifty thousand militia, and he would send forth the whole naval and regular force, armed and provided with military stores. he would enter their island, set fire to their warehouses, and bombard their city, desolate their farms and plantations, and having swept all their habitations away, after wading through streams of blood, he would tell those who had escaped destruction, we do not come here to make war on you--we are a very moderate, tender-hearted kind of neighbors, and are come here barely to take peaceable possession of your territory! why, sir, this is too naked not to be an insult to the understanding of a child! but the gentleman from new york (mr. morris) did not trifle with the senate in such a style; he threw off the mask at once, and in a downright manly way, fairly told us that he liked war--that it was his favorite mode of negotiating between nations; that war gave dignity to the species--that it drew forth the most noble energies of humanity! that gentleman scorned to tell us that he wished to take peaceable possession. no! he could not snivel; his vast genius spurned huckstering; his mighty soul would not bear to be locked up in a petty warehouse at new orleans; he was for war, terrible, glorious havoc! he tells you plainly, that you are not only to recover your rights, but, you must remove your neighbors from their possessions, and repel those to whom they may transfer the soil; that buonaparte's ambition is insatiable; that he will throw in colonies of frenchmen, who will settle on your frontier for thousands of miles round about, (when he comes there;) and he does not forget to tell you of the imminent dangers which threaten our good old friends the english. he tells you that new orleans is the lock and you must seize upon the key, and shut the door against this terrible buonaparte, or he will come with his legions, and, as gulliver served the lilliputians, wash you off the map. not content, in his great care for your honor and glory, as a statesman and a warrior, he turns prophet to oblige you--your safety in the present year or the next, does not satisfy him--his vast mind, untrammelled by the ordinary progressions of chronology, looks over ages to come with a faculty bordering on omniscience, and conjures us to come forward and regulate the decrees of providence at ten thousand years distance. we have been told that spain had no right to cede louisiana to france; that she had ceded to us the privilege of deposit, and had therefore no right to cede her territory without our consent! are gentlemen disposed to wage war in support of this principle? because she has given us a little privilege--a mere indulgence on her territory--is she thereby constrained from doing any thing for ever with her immense possessions? no doubt, if the gentleman (mr. morris) were to be the negotiator on this occasion, he would say: "you mean to cede new orleans; no, gentlemen, i beg your pardon, you cannot cede that, for we want it ourselves; and as to the floridas, it would be very indiscreet to cede that, as, in all human probability, we shall want that also in less than five hundred years from this day; and then, as to louisiana, you surely could not think of that, for in something less than a thousand years, in the natural order of things, our population will progress towards that place also." if spain has ceded those countries to france, the cession has been made with all the encumbrances and obligations to which it is subject by previous compact with us. whether buonaparte will execute these obligations with good faith, he could not say; but to say that spain has no right to cede, is a bold assertion indeed. the people of america will not go along with such doctrines, for they lead to ruin alone. we are also told, that the power of the chief consul is so great, that he puts up and pulls down all the nations of the old world at discretion, and that he can do so with us. yet we are told by the wonderful statesman, who gives us this awful information, that we must go to war with this maker and destroyer of governments. if, after the unceasing pursuit of empire and conquest, which is thus presented to us, we take possession of his territory, from the gentleman's own declarations, what are we to expect, only that this wonderful man, who never abandons an object--who thinks his own and the nation's honor pledged to go through whatever he undertakes--will next attack us? does the gentleman think that this terrible picture, which his warm imagination has drawn, is a conclusive argument for proceeding to that war which he recommends? the senate, mr. president, at this moment, presents a very extraordinary aspect; and by those not acquainted with our political affairs, it would appear a political phenomenon. here we see a number of people from the eastern states and the seaboard, filled with the most extreme solicitude for the interest and rights of the western and inland states; while the representatives of the western people themselves appear to know nothing of this great danger, and to feel a full confidence in their government. the former declaring that the western people are all ready for revolt and open to seduction; the latter ignorant of any such disposition, and indignant at the disgrace which is thrown on their character. in their great loving-kindness for the western people, those new friends of theirs tell them that they are a simple people, who do not know what is good for them, and that they will kindly undertake to do this for them. from the contiguous states of south carolina, georgia, tennessee, and kentucky, (those states from which the gentleman from pennsylvania, by his resolutions, proposes to draw the militia,) every member of this house is opposed to war; but from the east, (and one can scarcely refrain from laughing, to hear of the all-important representatives of the state of delaware in particular,) such is the passion for the wonderful, or the absurd, there prevails the liveliest sensibility for the western country! mr. nicholas said,--when the gentleman from pennsylvania (mr. ross) opened his war project, his resentment appeared to be confined wholly to spain; his sole object the securing the navigation of the mississippi, and our right to a convenient place of deposit on that river. we were told by that gentleman, that we are bound to go to war for this right, which god and nature had given the western people. what are we to understand by this right, given by god and nature? surely not the right of deposit, for that was given by treaty; and as to the right of navigation, that has been neither suspended nor brought into question. but we are told by the same gentleman, that the possession of new orleans is necessary to our complete security. leaving to the gentleman's own conscience to settle the question as to the morality of taking that place, because it would be convenient, he would inform him that the possession of it will not give us complete security. the island of cuba, from its position, and the excellence of its harbors, commands the gulf of mexico as completely as new orleans does the river mississippi, and to give that complete security that he requires of the president, the island of cuba must likewise be taken possession of. it has been shown that the measures proposed by the gentleman from pennsylvania, and he would again demonstrate it, if it was necessary, are calculated to bring upon the western country all the mischiefs that gentleman has depicted as resulting to them from a loss of the navigation of the river mississippi. if we are driven to war to assert our rights, the western people must make up their minds to bear that loss during the war; for without a naval superiority, which we have not and cannot obtain, or the possession of cuba, we shall not be able to avail ourselves of the navigation to any useful purpose. although we may take possession of the floridas and new orleans, it is from a conviction of its pernicious effects upon the western country, as well as other reasons, that he was averse to appealing to arms as long as there is a prospect of attaining our object in another way. the gentleman from new york, finding the weight of argument against him, and that a resort to arms would not be justifiable upon the ground taken by his friends, with a boldness and promptitude that characterizes veteran politicians, has not only assigned new and different causes for war, but new objects, and a new and more powerful enemy to cope with. he no doubt felt the force of the arguments that have been used to show the improbability that spain would authorize an act that would produce a rupture with this country, at the moment that she was parting with louisiana, and when she could not possibly derive any advantage from the wrong that she could do us by that act; and at a time when we knew from unquestionable evidence that it is the desire of spain to cultivate a good understanding with this country. he could give no credit to the suggestion, that the first consul had required spain to take that step. he knew that character too well to believe that he would attempt to throw a responsibility upon others, for his measures, nor indeed could it be shown that the first consul would be in any way benefited by it; he knows the american character too well to believe that any of the reasons that have been assigned by his friends who have preceded him in this argument, would form a justification for a declaration of war, without a previous demand for a redress of the wrongs that we have sustained. he knows that our countrymen, with a courage and perseverance that does promise success in any war, are at all times ready when it is necessary to assert their rights with arms, but that they will not be employed in wars of ambition or conquest; and above all, he sees the folly of going to war with spain, and taking from her a country that we should be obliged in honor and justice to give up to the french, perhaps the instant after we had taken possession of it; for if france would reinstate us in the rights and privileges that we hold under our new treaty with spain, i demand of the gentleman from new york, if he would wish this country to hold possession against france; and if he would, upon what ground he would justify it? the cession was made to france before the injury done us by the spanish officer; knowing this, we take the country; upon france demanding it of us, we should be bound by every principle of honor and justice to give her possession, upon her engaging to respect properly our rights. spain having injured us surely will not justify our committing an outrage of the most injurious and insulting nature upon france. would conduct like this comport with the gentleman's ideas of national honor, about which we have heard so much in the course of this debate? can it be, that an act, which, if perpetrated by an individual, would be robbery, can be justifiable in a nation? and can it be justifiable in the eyes of men, who believe there is nothing so precious or important as national honor? can the usefulness or convenience of any acquisition justify us in taking from another by force what we have no sort of right to? there were not in america men more attached or more faithful to the government of the united states than they were; and i will venture to predict, from my knowledge of them, that they will be the last to submit to the yoke of despotism, let it be attempted to be imposed upon them by whom it may. if there is one part of america more interested than any other in preserving the union of these states, and the present government, it is the western. important as the mississippi is to them, their free intercourse with the atlantic states is more important--all their imports are received through that channel, and their most valuable exports are sold, and will continue to be so, in the atlantic states. the same gentleman (mr. morris) says, we must line our frontier with custom-house officers, to prevent smuggling. if there is any force in what he says upon this subject, we ought not only to take new orleans and the floridas, but louisiana, and all the british possessions on the continent. another reason urged with great earnestness by the gentleman from new york, (mr. morris,) is, that france, without this acquisition, is too powerful for the peace and security of the rest of the world--that half the nations that lately existed are gone--that those that are left are afraid to act, and nation after nation falling at her nod--that, if france acquires the floridas and new orleans, it will put england and spain completely in her power, giving to those places an importance that they do not merit; and yet that gentleman and his friends have repeatedly asserted that war would not result from our taking immediate possession of those places; indeed, they say, it is the only way to avoid war. at one moment the country is represented as so important as to make the first consul the sovereign of the world; at the next, we are told that we may take it without any sort of risk, and without a probability that either france or spain will go to war with us for the recovery of a country so all-important to them. in the language of the gentleman from pennsylvania, i say, this idle tale may amuse children, but will not satisfy men. mr. president, we have nothing to fear from the colony of any european nation on this continent; they ought rather to be considered as a pledge of the good conduct of the mother country towards us; for such possessions must be held only during our pleasure. can france, in fifty years, or in a century, establish a colony in any part of the territories now possessed by spain, that could resist the power of the united states, even at this day, for a single campaign? what has been our progress since the year , in settling our western country? in forty years, under the most favorable circumstances that a new country could be settled, we have only a population of between five and six hundred thousand souls, and this country is settled by men who knew it perfectly--by men who either carried all their friends with them, or who knew that change of residence would not prevent their frequently seeing and hearing from their nearest relatives. can it be expected that any country will be peopled as fast, from a nation at the distance of three thousand miles, as our western country has been? and yet we are taught to be apprehensive of a colony to be landed to-morrow or next day from europe. sir, if we are wise and true to ourselves, we have nothing to fear from any nation, or combination of nations, against us. we are too far removed from the theatre of european politics, to be embroiled in them, if we act with common discretion. friendship with us, is the interest of every commercial and manufacturing nation. our interest is not to encourage partialities or prejudices towards any, but to treat them all with justice and liberality. he should be sorry to reproach any nation--he would rather suffer former causes of reproach to be buried in oblivion; and he was happy to perceive that prejudices which were incidental to the war that we had been forced into in defence of our liberties, with a nation from which we are principally sprung, were fast wearing off. those prejudices had been very powerfully revived, soon after our revolution had established our independence, by the aggressions of that nation, in various ways, more flagrant and atrocious than any thing we have to complain of at this day. the gentleman from pennsylvania said that this is not an apposite case; that at that time there was no blockade. it is true there was not a blockade of one of our ports, nor is there now, (the river mississippi is open for the passage of our boats and vessels,) but we were injured, in a commercial point of view, in a more material manner than we should have been by the blockade of the delaware or the chesapeake; for all the countries (except great britain) to which it was desirable for us to trade were declared to be in a state of blockade, and all our vessels going to those countries were subject to seizure. let gentlemen call to mind what was the conduct of our government at that time. the house of representatives had the subject under consideration, when the then president appointed an envoy extraordinary to demand satisfaction of great britain. what was the conduct of the members of the house of representatives, who were acting upon the subject, before it was known to them that the executive had taken any measures to obtain satisfaction for the injury sustained? did they attempt to counteract the executive? no; they suspended all legislative discussions and legislative measures. and even the injuries done us by the actual invasion of our territory, the erection of fortifications within our limits, the withholding the posts that belonged to us by treaty, and the robbery and abuse of our citizens on the high seas, did not provoke us to declare war, nor even to dispossess the invaders of our territory of what actually belonged to us. the executive proposed to negotiate, and it was thought improper to obstruct it. how gentlemen who approved of the interference of the executive upon that occasion, can justify their attempt to defeat the efforts of the present administration to obtain redress for the injury that we now complain of, they must answer to their consciences and their country. fortunately for the united states, not only the president, but a majority of both houses of congress, upon the present occasion, have put themselves in the gap between the pestilence and the people. if the gentleman from new york had exerted his ingenuity as much to state the grounds upon which an expectation of the complete success of our envoy might be founded, he would have been at least as usefully employed for his country as he has been in his attempt to show that it will not succeed, and he would have avoided the palpable contradictions of his own arguments that he has run into. the gentleman himself, without intending it, has assigned sufficient reasons why we might expect entire satisfaction. he has said, truly, that america, united, holds the command of the west indies in her hands. this must be known to all the nations that have colonies there; it must likewise be known to the proprietors of louisiana and the floridas, that, circumstanced as we at present are, there will be perpetual sources of contention between them and us. every thing that has happened as to the mississippi will be reacted as to the great rivers that head in what is now the mississippi territory, and empty themselves into the gulf of mexico, after passing through west florida. in the infancy of the colonies that may be settled in florida or louisiana, the mother country can count upon nothing but expense, particularly if they are to be the causes of perpetual quarrels with this country. in twenty years, the population of the united states will be nine or ten millions of people; one-third of that population will probably be on the western waters. this will give a force in that quarter of the union equal to that with which we contended with great britain; and our united force will be such that no nation at the distance of three thousand miles will be able to contend with us for any object in our neighborhood. these considerations, with a belief that, if we are treated with justice and liberality, we shall never violate the rights of other nations, or suffer ourselves to be involved in the wars that may take place among the great european nations, are arguments that cannot be withstood, if the governments of france and spain are in the hands of wise men; for they must see that they have nothing to hope from a contest with us, and that a union of our force with a rival nation would be productive of very serious danger and inconvenience to them. mr. dayton said, he lamented exceedingly the indisposition of the honorable member from virginia, (mr. nicholas,) not only because it had compelled him to abridge his arguments, which always entertained, even when they failed to convince, but because to that distraction of mind which sickness often produces, could alone be ascribed the doubts expressed by that member, respecting the views of the advocates of the original resolutions. the difficulty of the opposers of the resolutions, would, he said, have been less, if the gentlemen who supported them had settled among themselves what was their object, and had ascertained with whom we were to make war. to both these points, mr. d. said, the fullest and clearest answers had been given. our object, says he, is to obtain a prompt redress of injuries immediately affecting our western brethren, who look to us for decisive and effectual measures, and have told us that a delay of remedy will be ruinous to them; and our views and wishes are to take possession of the place of deposit guaranteed by treaty, whether it be in the hands of the one nation or the other, and to hold it as a security that the trade of so important a river should not be liable to similar interruptions in future. we are not, as the gentleman from virginia would insinuate, for rushing into a war, but we are for repelling insults, and insisting upon our rights, even at the risk of one. it was easy to foresee that the opposers of the resolutions offered by the honorable gentleman from pennsylvania, must resort to other means than fair argument, to justify them in the course which they were about to pursue. our most precious rights flagrantly violated, treaties perfidiously broken, the outlet or road to market of half a million of our fellow-citizens obstructed, our trade shackled, our country grossly insulted, were facts too notorious, and too outrageous to allow them the least plausible ground of reasoning. deprived of every other means of attack, they have resorted to that of alarm. they charge us with a thirst for war, and enter into a description of its horrors, as if they supposed that it was in our power to produce, or in theirs to prevent it. that which requires the concurrence of two parties, viz: contract or negotiation, they consider most easy; and war, which may always be produced by one party only, they consider as most difficult. nay, sir, they do what is more extraordinary and unpardonable, they shut their eyes to the fact that hostility has already been commenced against us. attacked and insulted as we had been, do we now, asked mr. d., call for war? let the resolutions give the answer. they begin with a declaration of certain rights, indisputable in their nature, indispensable in their possession, to the safety, peace, and union of this country. not a member opposed to us has controverted them, except the honorable gentleman from maryland, (mr. wright.) he denied the truth of all except one of them, and even of a part of that one. his honorable friends from the western country, who are in the habit of acting with him, cannot thank him for such defence. the formerly well applied words, "_non tali auxilio nec defensoribus istis egent_," must be applicable on this occasion, and it may be as well to leave them with each other to settle the question of their rights. but there is one article of the maryland member's creed which ought not to escape comment, because, if adopted, it would be fatal to the union. i understood him, said mr. d., as stating, that inasmuch as the produce which descends the mississippi bears a proportion of about a twentieth only to the exports of the whole union, it was not reasonable to expect that the other portion should be endangered to protect that minor part. if maxims like this were to actuate our councils, short indeed would be the duration of our independence. our enemies would have only to attack us by piecemeal, state by state, to make us an easy prey. the honorable member from maryland could not hope for even that gloomy consolation which we heard of on a former melancholy occasion. he could not flatter himself that he and his state would be left to be the _last victim_. but, mr. president, every other gentleman appears to admit the truth of the prefatory declaration of rights; they admit, too, that if we cannot be possessed of them otherwise, we must seize on them by force; but they refuse to give the means and the power to the president, in whom they have told us, over and over again, they repose implicit confidence. is any one of the resolutions too imperative on the president, we will agree so to alter as to make it discretionary, if desired by any gentleman on the other side; for without their leave, we cannot now amend our own resolutions. it is my consolation, mr. president, said mr. d., and it ought to be matter of triumph to my honorable friend, the mover of these resolutions, that, whatever may be their fate, the introduction and discussion of them will have produced no little benefit. they have brought forward gentlemen to pledge themselves, in their speeches, to employ force on failure of negotiation; which, though late, is better than never. they must be allowed the merit, too, of producing the resolutions which they offer as a substitute. these milk-and-water propositions of mr. breckenridge will at least serve to show that something should be done, some preparations made; and therefore even to these, feeble as they are, i will agree, if more cannot be carried. but let the relative merits of the two be compared. _ours_ authorize to call out of those militia nearest to the scene, and most interested in the event, a number not exceeding fifty thousand, and to give them orders to act, when the occasion requires it, in conjunction with the army and navy; _theirs_ authorize an enrolment of eighty thousand, dispersed over the whole continent, without any authority to act with them, however pressing the danger, nor even to march them out of their own state. _ours_ authorize the president to take immediate possession of some convenient place of deposit, as guaranteed by treaty, in order to afford immediate vent for the western produce, and relief to our suffering fellow-citizens, and thereby put it out of the power of a spanish intendant, whether acting from caprice, or orders from his court, to obstruct so important an outlet; _theirs_ give no such authority, but leave to the slow progress and uncertainty of negotiation that remedy, which, to delay, is almost as fatal as to refuse. the question being at length called for, on the motion of mr. breckenridge, for striking out the first section of the resolutions proposed by mr. ross, the yeas and nays were required, and stood, to , as follows: yeas.--messrs. anderson, baldwin, bradley, breckenridge, clinton, cocke, ellery, t. foster, jackson, logan, s. t. mason, nicholas, stone, sumter, and wright. nays.--messrs. dayton, hillhouse, howard, j. mason, morris, olcott, plumer, ross, tracy, wells, and white. on the question for striking out the remaining parts of the resolutions, the question was also taken, and carried by the same votes on each side. the question being then called for on the adoption of the amendments proposed by mr. breckenridge, the yeas and nays were called for, and the votes were as follows: yeas.--messrs. anderson, baldwin, bradley, breckenridge, clinton, cocke, dayton, ellery, t. foster, hillhouse, howard, jackson, logan, s. t. mason, j. mason, morris, nicholas, olcott, plumer, ross, stone, sumter, tracy, wells, and wright. nays.--none. so it was unanimously _resolved_, that the president of the united states be, and he is hereby authorized, whenever he shall judge it expedient, to require of the executives of the several states to take effectual measures to arm, and equip, according to law, and hold in readiness to march, at a moment's warning, eighty thousand effective militia, officers included. _resolved_, that the president may, if he judges it expedient, authorize the executives of the several states to accept, as part of the detachment aforesaid, any corps of volunteers who shall continue in service for such time not exceeding ---- months, and perform such services as shall be prescribed by law. _resolved_, that ---- dollars be appropriated for paying and subsisting such part of the troops aforesaid, whose actual service may be wanted, and for defraying such other expenses as during the recess of congress the president may deem necessary for the security of the territory of the united states. _resolved_, that ---- dollars be appropriated for erecting, at such place or places on the western waters as the president may judge most proper, one or more arsenals. after the question was taken, the resolutions were referred to messrs. breckenridge, jackson, and sumter, to bring in a bill or bills accordingly. wednesday, march . the vice president being absent, the senate proceeded to the election of a president, _pro tempore_, as the constitution provides, and the ballots being collected and counted, the whole number was found to be , of which make a majority. mr. bradley had , mr. morris , mr. hillhouse , and mr. logan . consequently, the hon. stephen r. bradley was elected president of the senate, _pro tempore_. _ordered_, that the secretary wait on the president of the united states, and acquaint him that, in the absence of the vice president, they have elected the hon. stephen r. bradley president of the senate, _pro tempore_. _ordered_, that the secretary make a like communication to the house of representatives. the president communicated the credentials of james hillhouse, elected by the state of connecticut a senator of the united states for six years, commencing with the fourth day of march current; and they were read and ordered to lie on file. thursday, march . a message was received from the house of representatives by mr. nicholson and mr. randolph, two of the members of said house, in the words following: "mr. president: we are commanded, in the name of the house of representatives and of all the people of the united states, to impeach john pickering, judge of the district court for the district of new hampshire, of high crimes and misdemeanors, and to acquaint the senate that the house of representatives will, in due time, exhibit particular articles of impeachment against him, and make good the same. we are further commanded to demand that the senate take order for the appearance of the said john pickering, to answer to the said impeachment." thursday evening, o'clock. mr. tracy, from the committee appointed on the subject, made the following report, which was adopted, and the house of representatives notified accordingly: whereas the house of representatives have this day, by two of their members, messrs. nicholson and randolph, at the bar of the senate, impeached john pickering, judge of the district court for the district of new hampshire, of high crimes and misdemeanors, and have acquainted the senate that the house of representatives will, in due time, exhibit particular articles of impeachment against him, and make good the same: and have likewise demanded that the senate take order for the appearance of the said john pickering to answer to the said impeachment: therefore, "_resolved_, that the senate will take proper order thereon, of which due notice shall be given to the house of representatives." _resolved_, that the secretary of the senate notify the house of representatives of this resolution. _adjournment._ _ordered_, that messrs. wright and cocke be a committee on the part of the senate, with such as the house of representatives may join, to wait on the president of the united states and notify him that, unless he may have any further communications to make to the two houses of congress, they are ready to adjourn. a message from the house of representatives informed the senate that the house of representatives concur in the resolution of the senate for the appointment of a joint committee to wait on the president of the united states, and notify him of the proposed adjournment of the two houses of congress, and have appointed a committee on their part. mr. wright reported, from the joint committee, that they had waited on the president of the united states, and that he informed the committee that he had no further communications to make to the two houses of congress. on motion, the senate adjourned to the first monday in november next. seventh congress.--second session. proceedings and debates in the house of representatives. monday, december , . this being the day appointed by the constitution for the annual meeting of congress, the following members of the house of representatives appeared and took their seats, to wit: _from new hampshire._--abiel foster and samuel tenney. _from massachusetts._--john bacon, seth hastings, nathan read, josiah smith, joseph b. varnum, peleg wadsworth, and lemuel williams. _from rhode island._--joseph stanton, jr., and thomas tillinghast. _from connecticut._--john davenport, calvin goddard, elias perkins, john cotton smith, and benjamin tallmadge. _from new york._--samuel l. mitchill, john smith, david thomas, john p. van ness, and killian k. van rensselaer. _from new jersey._--john condit, ebenezer elmer, james mott, and henry southard. _from pennsylvania._--robert brown, andrew gregg, joseph heister, joseph hemphill, william hoge, michael leib, john smilie, john stewart, isaac van horn, and henry woods. _from maryland._--john dennis, joseph h. nicholson, thomas plater, and samuel smith. _from virginia._--thomas claiborne, john clopton, john dawson, david holmes, george jackson, anthony new, john smith, and philip r. thompson. _from north carolina._--nathaniel macon, speaker, richard stanford, and john stanley. _from tennessee._--william dickson. _from the north-western territory._--paul fearing. several new members, to wit: samuel hunt, from new hampshire, returned to serve as a member of this house, in the room of joseph peirce, who has resigned his seat; samuel thatcher, from massachusetts, returned to serve as a member of this house, in the room of silas lee, who has resigned; and david meriwether, from georgia, returned to serve as a member of this house, in the room of benjamin taliaferro, who has also resigned; appeared, produced their credentials, and took their seats in the house. a new delegate, from the mississippi territory, to wit, thomas m. green, returned to serve in this house, in the room of narsworthy hunter, deceased, appeared, produced his credentials, and took his seat in the house. but a quorum of the whole number of qualified members not being present, the house adjourned until to-morrow morning, eleven o'clock. tuesday, december . another new member, to wit, thomas wynn, from north carolina, returned to serve as a member of this house, for the said state, in the room of charles johnson, deceased, appeared, produced his credentials, and took his seat in the house. several other members, viz: from new hampshire, george b. upham; from massachusetts, phanuel bishop, manasseh cutler, and william shepard; from connecticut, samuel w. dana and roger griswold; from pennsylvania, thomas boude; from virginia, thomas newton, jr., and john trigg; from north carolina, james holland; and from south carolina, thomas moore; appeared, and took their seats in the house. and a quorum, consisting of a majority of the whole number of qualified members, being present, the oath to support the constitution of the united states, as prescribed by the act, entitled "an act to regulate the time and manner of administering certain oaths," was administered by mr. speaker to the new members. _ordered_, that a message be sent to the senate, to inform them that a quorum of this house is assembled, and are ready to proceed to business, and that the clerk of this house do go with the said message. wednesday, december . two other members, to wit: from new jersey, william helms, and from north carolina, willis alston, appeared, and took their seats in the house. thursday, december . two other members, to wit: walter bowie, from maryland, and thomas t. davis, from kentucky, appeared, and took their seats in the house. friday, december . two other members, to wit: william eustis, from massachusetts, and john a. hanna, from pennsylvania, appeared, and took their seats in the house. saturday, december . another member, to wit, archibald henderson, from north carolina, appeared, and took his seat in the house. monday, december . several other members, to wit: from massachusetts, richard cutts; from new york, thomas morris; from virginia, abram trigg; and from south carolina, thomas lowndes; appeared, and took their seats in the house. tuesday, december . several other members, to wit: from massachusetts, ebenezer mattoon; from new york, theodorus bailey; from virginia, john randolph, jr., and john taliaferro, jr.; and from south carolina, william butler; appeared, and took their seats in the house. wednesday, december . another member, to wit, edwin gray, from virginia, appeared, and took his seat in the house. a message from the senate informed the house that the senate have agreed to the resolution of this house for the appointment of chaplains to congress for the present session; and have appointed the rev. dr. gantt, on their part. the house proceeded, by ballot, to the appointment of a chaplain to congress, on the part of this house; and, upon examining the ballots, a majority of the votes of the whole house was found in favor of the reverend william parkinson. a message was received from the president of the united states, by mr. lewis, his secretary, as follows: mr. speaker: i am directed by the president of the united states to hand you a communication, in writing, from the president to the two houses of congress. and he delivered in the same, together with the accompanying documents. the said communication was read. [for which, see proceedings in the senate of this date.] _ordered_, that the said communication, with the accompanying documents, be referred to the committee of the whole house on the state of the union. thursday, december . two other members, to wit: lucas elmendorph, from new york, and daniel heister, from maryland, appeared, and took their seats in the house. friday, december . two other members, to wit: from south carolina, benjamin huger, and john rutledge, appeared, and took their seats in the house. _violation of the right of deposit at new orleans._ mr. randolph observed that there had been a recent occurrence, in which every member of the house was interested, though every member might not, perhaps, possess competent information respecting it. he said it would be useless in him to impress the magnitude of a subject that related to the free navigation of the mississippi, which materially affected a district of country growing every day in wealth and importance, and which it behooved the whole united states to cherish and protect. he moved, therefore, the following resolution: "_resolved_, that the president of the united states be requested to cause to be laid before this house such papers as are in the possession of the department of state, as relate to the violation on the part of spain, of the treaty of friendship, limits, and navigation, between the united states of america and the king of spain." monday, december . several other members, to wit: from vermont, israel smith; and from virginia, richard brent, and matthew clay; appeared, and took their seats in the house. tuesday, december . another member, to wit, john campbell, from maryland, appeared, and took his seat in the house. wednesday, december . another member, to wit, john archer, from maryland, appeared, and took his seat. _violation of the right of deposit at new orleans._ a message was received from the president of the united states, as follows: _gentlemen of the house of representatives_: i now transmit a report from the secretary of state, with the information requested in your resolutions of the seventeenth instant. in making this communication, i deem it proper to observe, that i was led by the regard due to the rights and interests of the united states, and to the just sensibility of the portion of our fellow-citizens more immediately affected by the irregular proceeding at new orleans, to lose not a moment in causing every step to be taken which the occasion claimed from me; being equally aware of the obligation to maintain, in all cases, the rights of the nation, and to employ, for that purpose, those just and honorable means which belong to the character of the united states. th. jefferson. _dec. , ._ the message, and the papers referred to therein, were read, and ordered to lie on the table. _the mint._ mr. randolph rose, in order to renew a motion which he had made yesterday, and on which--being called to the door when some objections were urged against it--he was surprised to find himself in a small minority. understanding that the refusal to resolve itself into a committee of the whole on his motion for abolishing the mint, was the effect of a desire on the part of the house to receive the report of the director of that institution, for the past year, he would endeavor to show that the house were already in possession of competent information, and that it could not be affected by any communication which the head of that department might make. if this were a subject novel to the house, and of an undigested nature, he should readily acknowledge his motion to have been premature; nor would it, under those circumstances, have been submitted to the house. but, on examination, it would appear that the subject had been matured during the last session; that information of the most satisfactory nature had been received from the director; and a bill actually passed the house. that information, if it were not in the recollection of every member of the house, was accessible to all of them. it stated explicitly that the machinery would not last, without repair, longer than another year--this, he presumed, had not renewed itself; that the horses were so old that it would be necessary, at the end of the year, to replace them by others--these had not, he supposed, grown younger; that the lot was too circumscribed, and this, he imagined, had not enlarged its limits; that the expense of the institution could not, by any new arrangements, be reduced below twenty thousand dollars. the director had not only recommended a change of the site, but of the _modus operandi_ of the machinery of the mint, by supplying the labor of horses by steam. upon this information the house had acted last session. no general election having intervened, he must presume that no change of sentiment had taken place. he, therefore, thought he had a right to consider this subject as perfectly matured, and there being no other business before the house, hoped it would be taken up; although he was not surprised at the reluctance of those gentlemen who cherished the institution as one of the insignia of sovereignty, to act upon it. this aspect of the subject could not, however, be changed by any report of the detailed operations of the mint. he, therefore, moved that the house, agreeably to the order of the day, resolve itself into a committee of the whole on the resolution to repeal so much of the laws on the subject of the mint as relate to the establishing of a mint. mr. southard was in favor of the postponement. there were now present a number of gentlemen not members at the period of discussion during the last session. they have no documents, and cannot be correctly informed. he saw no advantage in entering upon the discussion at this time, as new and additional information may be received from the report of the director. it had been said there was no business before the house; but there was business; there was a bill upon their table, why not take that up and act upon it? mr. randolph called for the reading of a document that would throw clear and full light upon the subject; not light of that fleeting kind that may be derived from an annual report. from this document sufficient information could be had to convince any member that we might act as well now as at any other time. [the clerk read a report from the director of the mint, received during the last session, stating the real and personal property attached to the mint; that the machinery might last for one year; that the horses may last a year; that to conduct the operations of the mint to advantage, steam should be used instead of horses; that the lot on which the mint is erected was too small; and that a less annual sum than seventeen or eighteen thousand dollars would not provide for the establishment.] mr. randolph said he would state a fact, which was, that notwithstanding all the issues from the mint, no member sees a coin. for himself he had not seen a piece of gold coined in the mint for two years. mr. lowndes said the remark of the gentleman from virginia (mr. randolph) was not correct, as he had seen many pieces of american coin. but he could assign a satisfactory reason for the appearance of so little gold in ordinary circulation. it was the practice of the banks to count over once a month the specie in their vaults. this trouble was considerably lessened by depositing gold instead of silver. he had been credibly assured that there was now in the vaults of the banks of the united states gold, in eagles and half eagles, to the amount of two millions of dollars.[ ] mr. dennis said that, if, on full inquiry, the establishment appeared to be a drain on the treasury, he should be for abolishing it; but he should not, on immature information, be for abolishing an institution, coeval with the government, and founded on good reasons. the reasons adduced by the gentleman from virginia (mr. randolph) were insufficient. so far as related to the horses, he believed there were only four employed, and the purchase of four fresh ones would be a very unimportant consideration. another argument was drawn from the smallness of the lot on which the mint stands. though it might be better conducted on a more extensive lot, yet he was not satisfied, notwithstanding present disadvantages, that it might not be profitably conducted, at least so far as regarded a copper coinage. for these reasons he thought it proper to wait a few days, in order to receive information that would enable them to understand the points on which their decision may ultimately turn. the question was then taken on mr. gregg's motion to postpone the subject till the second monday in january, and carried--ayes , noes . thursday, december . another member, to wit, lewis r. morris, from vermont, appeared, and took his seat in the house. friday, december . another member, to wit, william h. hill, from north carolina, appeared, and took his seat in the house. monday, december . _case of j. p. van ness._ mr. davis observed that he was of opinion that a member of the house retained his seat contrary to the spirit and sense of the constitution. it therefore became his duty to offer a resolution for instituting an inquiry into the subject, in doing which he disclaimed all personal view. he then made the following motion: _resolved_, that the committee of elections be, and they are hereby, instructed to inquire whether john p. van ness, one of the members of this house from the state of new york, returned by said state to serve as one of its members in the seventh congress of the united states, has not, since his election as a member of this house, and since he occupied a seat as a member, accepted of, and exercised the office of a major of militia, under the authority of the united states, within the territory of columbia, and thereby forfeited his right to a seat as a member of this house. mr. mitchill considered the point as interesting in two relations; that which involved the decision of a principle, and that which went to deprive the state, (new york,) one of whose representatives he was, of a member. for these reasons he hoped the business would not be immediately pressed. he acknowledged this was not the first intimation he had received of the contemplation of such a motion; but he had entertained a hope that the gentleman with whom it originated, had, on reflection, considered it not inconsistent with his duty to abandon it. mr. davis replied, that he felt no disposition to press a decision. he had communicated, the first day he took his seat, his ideas on the subject to certain members, the friends of the gentleman implicated by the resolution, in hopes that he would resign. he now entertained no wish to push the business. he supposed, however, that the resolution would, of course, go to the committee of elections. he repeated that he was governed by no personal prejudice, but entirely by a sense of duty. he concluded with saying he was in favor of the question of reference being immediately taken. but on mr. mitchill repeating his desire for some delay, mr. davis agreed to let the resolution lie till to-morrow. tuesday, december . two other members, to wit: from virginia, john stratton; and from north carolina, william barry grove, appeared, and took their seats in the house. _letter of james mchenry._ the speaker laid before the house a letter addressed to him from james mchenry, late secretary for the war department, containing a variety of observations on the subject-matter of a report presented to the house, on the twenty-ninth day of april last, from the committee appointed to inquire and report, whether moneys drawn from the treasury have been faithfully applied to the objects for which they were appropriated, and whether the same have been regularly accounted for; and to report, likewise, whether any further arrangements are necessary to promote economy, enforce adherence to legislative restrictions, and secure the accountability of persons intrusted with the public money, together with an appendix, comprising sundry explanatory statements in defence of the official conduct of the said james mchenry, whilst acting in the capacity aforesaid: the house proceeded in the reading of the said letter, and having made some progress therein, mr. alston said that the paper which the clerk was reading appeared to him to be a very voluminous one, and that he did not think the house were bound to listen to the reading of it. he conceived them only bound to attend to such documents as might be received from public officers, or to petitions for a redress of grievances. he did not believe the paper now before the house to be one of that description, or that the house ought to take any notice of it. if the house were bound to take notice of every letter any individual might think proper to write and address to the speaker, very little time might be left to do any other business. he concluded by saying he thought they ought to take no more notice of it than they should of any paragraph in a newspaper which might be enclosed to the speaker. he therefore moved that the paper should not be read. mr. stanley observed that he did not perceive the difference stated by his colleague; nor did he know how the gentleman could anticipate the contents of a communication before read. we shall be enabled to judge better of it when we hear it. by what inspiration could the gentleman form a judgment now? the communication appeared to him of the utmost importance. he hoped, therefore, it would be read. mr. morris could not omit making a remark or two. from the communication, so far as read, it appeared that it was charged that the character of a former public officer had been aspersed. the house ought, therefore, not only to read the communication, but also to inquire into the complaint. there was not an indecent expression in it. the writer complains that his character has been attacked; he thinks unjustly attacked. it will be the height of injustice to refuse him an opportunity of being heard. the speaker said that it was a rule of the house that when the reading of a paper is called for, it shall be read, unless dispensed with by general consent. mr. randolph said he wished only to observe, that there was but one principle (and that had been stated by the speaker) on which these papers ought to be read. any member had a right to call for the reading of papers. to him, however, it appeared that there was no occasion for inspiration to perceive that the papers, so far as read, were in a high degree indecent, unworthy of any man who had held, or ought to hold, an office under government, and derogatory from the dignity of the house. members were cited by name; insults were offered to individual members; a committee was divided into different sects; on one class illiberal calumnies were thrown, while the other class was shielded from reflection. was this decent or indecent? he congratulated himself that he differed as widely on this subject as he did on others from gentlemen. mr. morris said, however widely he might differ on this as well as other subjects from the gentleman from virginia, he believed his own ideas of what was decent or indecent as correct as those of that gentleman. the letter states that a report had been made during the last session implicating the character of the writer. it further states that certain gentlemen on the committee did not concur in the report. this the writer knew from the debates upon the report. he therefore thought it his duty, in vindicating himself, to exonerate those members from censure. was this indecent? he conceived not. mr. m. said that when he had observed that there was not an indecent expression in the letter, he meant that there was no such expression applied to the house collectively. he did not mean to say there were no charges against individual members. but if there were charges against individual members, that was no reason for the house refusing to hear it. that could only be done when charges were made against the house in its collective character. the speaker read the rules of the house that applied to the case before them. mr. alston said he only rose to notice the observation of his colleague, (mr. stanley,) who supposed he saw the inside of the communication before it was presented. this he denied. he had grounded his motion exclusively on what he had heard read. mr. bacon was at a loss to decide on the propriety of reading or not reading these papers. he perceived that they contained not only a complaint, but a high charge against a committee of the house, stating that the major part assumed to act exclusively upon the business assigned to the whole committee, without consulting the other members. this was a high charge. whether proper, or regularly made, he did not know. it was rather his opinion that the house ought to proceed in reading the papers, and afterwards to pass proper order on them. the speaker declared the rule for reading imperative, and mr. alston withdrew his motion; on which the clerk proceeded in the reading, which was continued for more than an hour. wednesday, december . _case of john p. van ness._ mr. davis called up his resolution instructing the committee of elections to inquire whether mr. van ness had not forfeited his seat, by accepting the appointment of major in the militia of the territory of columbia. mr. van ness said that, so far as the decision of the house might affect him personally, he felt little concern; but, so far as it affected him as a representative of an important state, he was not so indifferent. he had no objection whatever to the proposed inquiry being made. as it involved the decision of an important principle, it deserved great attention. he had no doubt of the inquiry being made with that candor and fairness which, in most cases, characterized the proceedings of the house. he was far from imputing any impure motives to the mover or seconder of the resolution. it would be as derogatory to him to impute, as in them to entertain, any views dishonorable or base. he had risen barely to state his wish that an inquiry might be made. mr. elmendorph proposed a verbal amendment, which was not agreed to. the resolution was then adopted without a division. wednesday, january , . _cession of louisiana to france._ mr. griswold called up his resolution respecting louisiana, laid on the table yesterday, as follows: _resolved_, that the president of the united states be requested to direct the proper officer to lay before this house copies of such official documents as have been received by this government, announcing the cession of louisiana to france, together with a report explaining the stipulations, circumstances, and conditions, under which that province is to be delivered up: unless such documents and report will, in the opinion of the president, divulge to the house particular transactions not proper at this time to be communicated. the question was put on taking it into consideration, and carried--yeas , nays . mr. randolph observed that the discussion on this motion might embrace points nearly connected with the subject referred to a committee of the whole on the state of the union, and which had been discussed with closed doors. he therefore thought it would be expedient to commit this motion also to the committee of the whole on the state of the union, to whom had been committed the message of the president respecting new orleans. mr. griswold hoped the motion would not prevail. he did not see what argument could be urged in favor of it. the resolution related to a public transaction stated on their journal. he did not think that any thing which ought to be kept secret could be involved in the discussion of it. what is its purport? it only requests the president to furnish documents respecting "the cession of the spanish province of louisiana to france, which took place in the course of the late war," and which the president says "will, if carried into effect, make a change in the aspect of our foreign relations, which will doubtless have just weight in any deliberations of the legislature connected with this subject." are not, said mr. g., these papers important to the house? does not the president refer to them as important to enlighten us? he speaks of the cession as a fact. he took it for granted the president would not make the declaration unless he had official information of its truth. ought not the house to be possessed of all the important information in the power of the executive to give? it certainly ought. every gentleman would agree that the house ought to have all the information. if the information is confidential, it will be received with closed doors. but the question, whether the house shall obtain this information is a public question; and there was not a man within those walls, or in the united states, who would not say that the legislature ought to possess every information on a subject so deeply interesting. why, then, refer this resolution calling for information to a committee? why postpone it? they had but a short time to sit. more than half the session was already elapsed. is it not time to gain information? mr. g. said, he would venture to declare that no subject so important could be brought before the legislature this session. ought we not, therefore, on such a subject, to take immediate means to gain information? he hoped the house would not agree to the reference, which could have no effect but to put the resolution asleep, and deprive the legislature of information they ought to possess. mr. randolph said, as he had expressed his disinclination to discuss a proposition with open doors which would trench on the decision of the house to discuss a subject to which it intimately related with closed doors, it could scarcely be expected that he should indulge the gentleman in entering into arguments calculated to carry him from his purpose. but he denied that the adoption of his motion would be a refusal to give information. he well knew that there was nothing easier than to declare the subject vastly important, and to make an eloquent harangue upon it, and to infer that those who did not immediately agree to the resolution were averse to giving information, and to going into a discussion of the merits of the main subject. it would, however, not be expected that he should enter upon these on a preliminary resolution. but he would assure the gentleman who had submitted this resolution, that, so far from indulging any disposition to be dilatory in his attention to this important subject, he came yesterday prepared to make a motion that the house should go into a committee of the whole on the subject, which motion he should have then made but for that offered by the gentleman from connecticut. mr. rutledge said that, did he consider that the giving publicity to any information on this subject would in the least interfere with the constitutional functions of the president, he would be the last man to support the resolution of his friend from connecticut. but he could not conceive that this could be its effect. what were they about to ask? they were about to ask, in respectful terms, the president for information relative to what he states as a fact; so much information as he may think it expedient to give. surely there would be no impropriety in this. the cession of louisiana had been stated in all the public prints of europe and this country, and on the floor of the british parliament. this cession had been made a year ago, and, notwithstanding the elapse of this time, we have received no official information on this subject. is it not natural for the people to ask why congress do not call for this information? will they not say the president has done his duty in stating the fact? upon this subject, so very important, are they to be kept in the dark? mr. r. could not conceive any turn of the debate on this resolution that could produce a discussion of the merits of the message referred to the committee of the whole. if the president shall say the information he gives us ought not to be made public, he would answer for himself, and he believed he could answer for his friends, that they would not seek a public discussion. and if the information is imparted without confidence, the house, if it see fit, can itself control a public discussion. mr. r. concluded with saying that, in the present case, he was for deciding on the resolution with open doors. mr. s. smith thought this point ought in a great measure to be determined by the custom of the house in similar cases. he did not assert it as a fact, but, from recollection, he believed it was so, that when a call was made for papers in the case of the british treaty, the question was referred to a committee of the whole, and there fully discussed. according to his recollection, one side of the house called for papers on the principle that, after negotiations were terminated, the house had a right to information before they made a grant of money under a treaty, but acknowledging that a call for such information might be improper during a pending negotiation. he was one of those who thought it proper, on that occasion, that the house should have the papers; but he also thought it improper, and had then so declared, to call for papers during a pending negotiation. whether in the present instance a negotiation was pending or was not, he did not know. he was, therefore, for postponing the resolution till this was known to the house. mr. dana said that he did not know, nor had he heard from any quarter, that there was any negotiation depending respecting the cession of louisiana. the president has informed us of the fact. all that the resolution asks are official documents respecting the cession, with the stipulations, circumstances, and conditions, under which it is to be delivered up. he could not see the impropriety of such a request. but if the president deem it improper to furnish the information, we do not assert our right to demand it. there are two views in which this information may be important; that which may throw light on the boundaries of the province as ceded; and another, whether the province is to be ceded to the french in the condition it shall be in when actually delivered up, or whether subject to the conditions in which it was held according to treaty by spain. this is important information to guide our deliberations; information not depending upon an existing negotiation, but upon a negotiation decided. mr. griswold called for the taking of the yeas and nays. mr. smilie was in favor of the widest publicity in every case where it would not prove injurious; and there were, in his opinion, very few cases in which it ought not to take place. he could not, however, withhold one remark; that gentlemen should object to the mode now proposed, a mode similar to that adopted in like cases, greatly surprised him. [he here quoted the proceedings of the house on a call for papers in the case of the british treaty.] that case furnished a precedent, by which it appeared that a motion for information was referred to a committee of the whole for a more full discussion. mr. davis observed that, as he lived in that district of country most materially affected by the subject before the house, he thought it proper to express his opinion on the motion. he said he did not know what reason could be assigned for the motion, but that expressed by the gentleman from virginia, to go into a committee of the whole in private, to propose certain resolutions that required secrecy. mr. d. said it had been his purpose yesterday to have submitted certain resolutions, which he should have done, but for the motion of the gentleman from connecticut calling for information; after it was made he was willing to wait until all information was obtained that could be furnished. suppose we go into a committee of the whole, what light can we expect from their deliberation? we can gain nothing. but let the call for information prevail; let us draw from the president such information as he may think it proper to give; and let us then refer that information to a committee of the whole, and they will be able to deliberate wisely. what use can it be to take a step from which no benefit can be derived? as to the call on the president, he will not give us any thing that is improper. how does the gentleman from virginia know what light this information may throw on the subject? is he prepared to say it will throw no light on this subject? if he is, mr. d. said he himself was not. he might have ways of acquiring the secrets of the cabinet; but for himself he had no such opportunities. mr. d. concluded by declaring himself against the motion. mr. randolph was compelled again reluctantly to trespass on the indulgence of the house, to assure them, and the gentleman from kentucky, that his motion did not comprehend a refusal to agree to the call for information made by the gentleman from connecticut. after going into committee, they might, perhaps, either by a unanimous vote, or by that of a majority, agree to the resolution. benefit might arise, and no mischief possibly could, from going into a committee of the whole. mr. huger must acknowledge that he could not understand the object of those who were for refusing this information. if they had any objection to asking the information, let them inform us what it is. and if they have no objection, why go into a committee of the whole; which, if gone into, must be with closed doors? the question alluded to in the british treaty was very different from this. in that case, one part of the house thought they had a right to demand the information of the executive, and that he was bound to deliver it; while the other part of the house neither acknowledged the right to demand, nor the obligation to obey. the present case was entirely different. we ask nothing but what the executive shall think proper to furnish, we are as cautious as we can possibly be; we even go so far as to put words in the president's mouth, if he shall think there is any impropriety in giving the information. gentlemen certainly have confidence in the executive, that he will tell us if the information is improper to be furnished. mr. h. could not but express his surprise that the house had received no official documents on this important subject. he could not comprehend why congress should not know the contents of the convention. if proper, we ought to have these documents; and if not proper, we ought to have a reason for it. the country was in a state of serious alarm; and it might have a bad effect if something was not immediately done, and a disposition exhibited to act, in case it should prove necessary. mr. smilie said the gentleman, from south carolina (mr. huger) was incorrect, when he stated that, in the case of the british treaty one set of gentlemen had contended for the right of the house to demand papers. if this had been so, the resolution then proposed would have been peremptory; whereas the fact was that it was qualified by an exception of such papers as the president might consider it improper to furnish. [mr. smilie here quoted the journals, which confirmed his remark.] mr. gregg said it would be allowed that this was an important resolution, which related to an important subject. this was, he believed, the first instance in which a resolution allowed to be important, had been refused a reference to a committee of the whole. on this principle his vote would be decided. if the motion did not prevail he should then move that the resolution should be printed before it was acted upon. mr. griswold would not object to the reference if the object were to obtain a more full discussion of the resolution. he was generally in favor of such references, as the discussion was conducted in a committee of the whole on a freer scale than in the house. on this principle it was, that the call for papers respecting the british treaty was referred to a committee of the whole. but it had not been referred to a committee of the whole on the state of the union. he, however, understood the object of gentlemen to be to refer the resolution to a committee of the whole, for the purpose of discussing it with closed doors. if that were the object, he should oppose it. for, he would say, nothing of secrecy could arise out of the discussion of this resolution. he did not wish that a resolution so important should be referred to a secret committee. if gentlemen mean to deny us this information, let them deny it in public. let them not do it in a secret committee. surely they can have no such unworthy motives. as to the case of , under the british treaty, the ground of opposition was this: it was claimed that the house had a right to decide upon a treaty, and to establish this point papers were called for. and on the decision of the question, on the granting or refusing the application, depended the establishment of the right of the house to participate in the treaty-making power. this right was denied by those who voted against the call. but in this case there was no difference as to the power of the house. the president in his message had expressly stated that the cession would have weight in the deliberations of the legislature. this, then, being a case in which it is proper to legislate, shall we go to work blindfold, without having all the information possessed by the executive, that it is proper we should possess? what do we know respecting the cession? though made for more than one year, we have no information, except that contained in the message, which barely mentions the fact. for these reasons mr. g. hoped the motion would not prevail, as its avowed object was not for a more full discussion, but for the purpose of going into a secret committee. if gentlemen mean to deny us the information we ask, let the denial be public; and if they grant it, there is no reason against their doing it publicly. mr. randolph.--the gentleman from connecticut tells us that this subject is referred to in the message of the president, and that on it we are called by him to legislate. that subject has been referred to a committee of the whole; and yet, he says, it is improper to refer this resolution to the same committee. this may be logic; but i confess, if it is, i do not understand it. he says if the object of reference be for a more ample discussion, he will be in favor of it; but not so, if it be to send it to a secret committee. does the gentleman mean to insinuate that the debates of this body are for the entertainment of the ladies who honor us with their presence; or that as soon as our doors are shut, our ears also are shut to all useful and necessary information? if the doors shall be closed, cannot we still agree to the resolution? however gentlemen may persist in the course they have taken, i shall not permit the warmth of their remarks, or that of my own feelings, to betray me into a debate on points which the house have determined shall be discussed with closed doors. for my own part, i am ready to declare that i have arguments to advance, that it is not my wish to advance with open doors. mr. bacon said the resolution simply called for information respecting the cession of the province of louisiana to the french. he did not see the end to be answered by committing it. is there any doubt that we shall not stand in need of information when we come to discuss points connected with this subject? it appeared to him they would. he was therefore against the reference. mr. s. smith.--the gentleman from connecticut has candidly admitted that it is customary in such cases to make a reference; that he is not in favor of the reference being made to a committee with shut doors; but if the object were to obtain a free discussion, he would not object to it. he is told that a full and free discussion cannot be had without such a reference, and yet he persists in his hostility to the motion. he had been told so by the mover, and common sense would have told him so at first; yet he is for taking advantage of the mover, and for shutting out the arguments he has to urge. the gentleman is mistaken in his statement of the motives of the different sides of the house in the discussion on a call for papers, in , when he represents one side as claiming a right to participate in the treaty-making power. he recollected it had been charged upon them; but they had denied it. we contended, said mr. s., that when a treaty was formed, appropriating a large sum of money, we had a right to appropriate or not to appropriate the money; but we never assumed the right to say whether the treaty was concluded or not. afterwards, gentlemen themselves, if he recollected right, moved a resolution that it was expedient to carry the treaty into effect, by which they did admit the right of the house. mr. s. said he had no previous knowledge of what the gentleman from virginia meant by his motion; he might perhaps wish to amend the resolution; but when he says he has arguments that he cannot urge without shut doors, he trusted that indulgence would be allowed him, or there would be a denial of justice. mr. dana said, there was a magic of language, to those unaccustomed to parliamentary language, in the house resolving itself into a committee, and that committee returning itself back into the house, both composed of the same members, that made the proceedings of public bodies appear ridiculous. but there were substantial benefits derived from the observance of these forms. there was a fuller and freer discussion; every member spoke as often as he chose, and they enjoyed the speaker's advice. there were, besides, two discussions and decisions, instead of one. he admitted, therefore, the propriety of such procedure in all cases where there was an important principle involved. but in this instance there was no important principle to discuss. there was an important principle involved in the famous question of . it was therefore right to refer it to a committee of the whole. he did not know what principle was to be discussed on this reference, unless it was the want of information. this he most sensibly felt; and those gentlemen who also felt it, might, he thought, be indulged by those who possess all information on the subject. if any gentleman, however, will say that any important principle is involved in the resolution, he was ready to go into committee of the whole, though not with closed doors. the question was then taken by yeas and nays on mr. randolph's motion, to refer the resolution of mr. griswold to a committee of the whole on the state of the union, and carried--yeas , nays , as follows: yeas.--willis alston, john archer, theodorus bailey, richard brent, robert brown, william butler, thomas claiborne, matthew clay, john clopton, john condit, richard cutts, john dawson, lucas elmendorph, ebenezer elmer, william eustis, edwin gray, andrew gregg, john a. hanna, joseph heister, william hoge, james holland, david holmes, george jackson, michael leib, david meriwether, samuel l. mitchill, thomas moore, anthony new, thomas newton, jr., joseph h. nicholson, john randolph, jr., john smilie, john smith, (of new york,) john smith, (of virginia,) josiah smith, samuel smith, henry southard, richard stanford, joseph stanton, jr., john stewart, john taliaferro, jr., david thomas, philip r. thompson, abraham trigg, john trigg, philip van cortlandt, joseph b. varnum, isaac van horne, and thomas wynns. nays.--john bacon, phanuel bishop, thos. boude, john campbell, manasseh cutler, samuel w. dana, john davenport, thomas t. davis, john dennis, wm. dickson, calvin goddard, roger griswold, william barry grove, seth hastings, william helms, joseph hemphill, archibald henderson, benjamin huger, samuel hunt, thomas lowndes, ebenezer mattoon, lewis r. morris, thomas morris, james mott, elias perkins, thomas plater, nathan read, john rutledge, william shepard, john cotton smith, john stanley, benjamin tallmadge, samuel tenney, samuel thatcher, thos. tillinghast, george b. upham, peleg wadsworth, lemuel williams, and henry woods. on motion of mr. griswold, the house immediately went into committee of the whole on the state of the union. mr. randolph rose, and observed that he held in his hands certain resolutions connected with the message of the president, relative to the late proceedings at new orleans, the discussion of which had been ordered to be carried on with closed doors. he asked the decision of the question, whether, previously to offering his resolutions, the doors ought not to be closed? the resolutions he meant to submit grew out of the message. if the house, however, insisted upon their being then read, he had no indisposition to read them. the chairman considered the committee as incompetent to clearing the galleries. he thought it must be the act of the house. mr. dawson inquired if the same rules that applied to the house, did not also apply to committees of the whole? mr. randolph called for the reading of the president's message respecting new orleans. mr. griswold said there was other business, not requiring secrecy, referred to the committee. mr. randolph repeated his call for the reading of the president's message. the chairman asked what message? mr. randolph replied, the confidential message. mr. griswold said that could not be read with open doors. the chairman said the doors could not be closed without an order of the house. mr. s. smith observed that it had been customary to clear the galleries before the house went into committee. to save time, he would move that the committee should rise, in order to obtain an order of the house to that effect. mr. griswold hoped the committee would not rise. the business he had proposed was of a public, not of a private nature. it was also of a pressing nature, and ought not to be postponed for any other business. mr. dana hoped, indeed, for the honor of the house, they would not exhibit the spectacle of wasting time in going into committee and then coming out of it without doing any thing, but would proceed to the public business. mr. rutledge.--the gentleman from virginia holds in his hands resolutions that require secrecy. after deciding on the motion of the gentleman from connecticut, he will not be precluded from offering these resolutions. mr. eustis said if the house had resolved itself into a committee for the express purpose of taking into consideration the resolution of the gentleman from connecticut, it would be proper to give it the preference over any other business; and in that case he should have been as ready at this moment as at any other to offer his objections to it. but if it were understood that the house had resolved itself generally into a committee on the state of the union, one gentleman from virginia having made a motion, and another gentleman from connecticut having afterwards made another motion, that made by the last gentleman being junior in point of time ought to be last attended to. the other gentleman's motion was first in course; and if the gentleman who offered it desired the galleries to be cleared, he had an undoubted right to an order to that effect. mr. macon (speaker) remarked that a committee of the whole house was one committee, and a committee of the whole house on the state of the union another committee. they were distinct committees. the last was never formed for special purposes. he did not recollect that this had ever been done. whereas the other committee was always formed for a special purpose. the difficulty in this case had arisen from referring the confidential message to a committee of the whole on the state of the union. he believed it would be well to rise, and separate the two subjects that had been referred to the committee on the state of the union. mr. griswold did not understand what the gentleman from massachusetts meant by priority of motion. the chairman had determined that the motion of the gentleman from virginia was not in order, as it could not be submitted to a public committee. after this disposition of that motion, none remained before the committee other than his own. in point of priority, he rose, therefore, to have his resolution then decided upon. with regard to the proposition of the honorable speaker, he did not see any reason for it. was it not as well to decide on this resolution in this committee as in any other committee? why, then, rise for the purpose of referring it to a secret committee? mr. s. smith said, the gentleman from massachusetts meant by his remarks that the message of the president had precedence. the gentleman from connecticut was only now urging what had been decided against him in the house. he thinks he has now an advantage, and presses it. mr. s. said, he had not a doubt that the gentleman from south carolina (mr. rutledge) is very sincere in his opinion, that, if we will agree to submit all power to them, they will indulge us by agreeing to certain subordinate points. but gentlemen will excuse us. we have already taken great pains to divest them of power, and we are not yet disposed to return it into their hands. we are of opinion that the message ought to be discussed with closed doors; that is the intention of the motion; let us not take advantage of those who have arguments to offer which they wish not to submit with open doors; let the committee rise, and the galleries be cleared. mr. dana, in one point, fully agreed with the gentleman from maryland. they had taken great pains to get power. but he regretted that any political party allusion whatever had been made on this subject. he had supposed it so important, so deeply interesting to all america, that he had hoped all spirit of party would have slept during our deliberations on it; and that we should have shown that we entertained but one sentiment, and were ready, if necessary, to extend one arm in defence of our invaded rights. mr. l. r. morris expressed his disagreement with the speaker on a point of order-- when the question was taken on the rising of the committee, and carried in the affirmative--ayes , noes . the committee accordingly rose, and the chairman reported that they had come to no resolution. a motion was made to adjourn, on which mr. griswold called the yeas and nays; which were--yeas , nays . _navigation of the mississippi._ [secret session.] the house was then cleared of all persons, except the members and the clerk: whereupon the house resumed the consideration of a confidential communication from the president of the united states, received the thirty-first ultimo. _ordered_, that the committee of the whole house on the state of the union, to whom was referred the message of the president of the united states of the twenty-second and thirtieth ultimo, be discharged from the consideration thereof; and that the said message, together with the documents transmitted therewith, be committed to a committee of the whole house to-morrow. on a motion made and seconded that the house do come to the following resolution: _resolved_, that this house receive, with great sensibility, the information of a disposition in certain officers of the spanish government at new orleans, to obstruct the navigation of the river mississippi, as secured to the united states by the most solemn stipulations. that, adhering to the humane and wise policy which ought ever to characterize a free people, and by which the united states have always professed to be governed; willing, at the same time, to ascribe this breach of compact to the unauthorized misconduct of certain individuals, rather than to a want of good faith on the part of his catholic majesty; and relying with perfect confidence on the vigilance and wisdom of the executive, they will wait the issue of such measures as that department of the government shall have pursued for asserting the rights and vindicating the injuries of the united states; holding it to be their duty, at the same time, to express their unalterable determination to maintain the boundaries, and the rights of navigation and commerce through the river mississippi, as established by existing treaties. _ordered_, that the said motion be referred to the committee of the whole house last appointed. thursday, january . _cession of louisiana._ [public session.] mr. griswold moved that the house should resolve itself into a committee of the whole on his resolution respecting louisiana. mr. dawson was opposed to the motion, for reasons before assigned. mr. griswold said the gentleman did not understand what he had proposed. it had been the wish of gentlemen to separate the consideration of his resolution from other subjects referred to the committee of the whole on the state of the union. for which purpose he had been willing to refer it to a committee of the whole. but he was averse to referring it to a secret committee; as he did not perceive its connection with any subject that required secrecy. the discussion on it ought, in his opinion, to be public. it was not necessary for him to repeat that it was of a pressing nature. it respected the obtaining information on a subject, he would say, of greater importance than any which could come before congress that session. one third of the session was gone, and yet the legislature had no information before them. he hoped there was no disposition entertained by gentlemen to embarrass this proposition with points unconnected with it. the proposition was extremely simple. called upon by the president to legislate on the subject of the cession of louisiana, we do not know the precise state of that cession. to legislate correctly, we want to be informed of all the circumstances. if gentlemen are disposed to deny us this information, let the denial be public. do not let them refer this motion to a secret committee, where they may deny us the information we ask on reasons which we cannot divulge. mr. g. concluded by calling for the yeas and nays. mr. s. smith asked if this were not the precise motion decided yesterday by the house? he thought it had been referred to a committee of the whole. he had considered it as having taken that course. when we go into committee the gentlemen will see whether we shall refuse them the information. perhaps we shall see that it is of such a nature as we ought to possess. he did not himself know how that was; nor did he mean to commit himself by any remarks which he had made. he trusted gentlemen would remember their vote yesterday, and not suffer themselves to be put out of their course by this extraordinary mode of conducting business. mr. lowndes demanded whether, even if the motion were the same, there was any impropriety in putting it again to-day; and whether it were not perfectly consistent with the rules of order to go into a committee, and take up the resolution? if there ever was a resolution offered to that house which ought to obtain a unanimous vote, it was that of his honorable friend from connecticut; which proposes simply the calling for such information as the president might see fit to give on a most important subject that had excited the sensibility of the whole nation. the president himself, in his message, alludes to the subject as one which may require legislative interposition, and gentlemen persist in refusing us this information. it was a most extraordinary circumstance in the annals of the united states, that, notwithstanding the magnitude of the cession of louisiana, the length of time since it was made, and the necessary consequence of having a new and powerful neighbor on our frontier, we had yet no official information on the subject. the president in his message really tells us nothing. he says "the cession of the spanish province of louisiana to france, which took place in the course of the late war,"--this we had been told long before by the public prints, and in a discussion before the british parliament--but he goes on and says--"will, if carried into effect, make a change in the aspect of our foreign relations, which will doubtless have just weight in any deliberations of the legislature connected with that subject." to this the understanding of every schoolboy is competent. it was really surprising that gentlemen should wish to reject such a call as this. it was not probable that the president had been so unmindful of his duty as not to have demanded an explanation through our ministers at the court of spain, or at paris. if he has this information, and it is of a nature proper to be known to us, we ought immediately to obtain it, that we may not be slumbering at our posts on an infraction of our rights. mr. l. suspected gentlemen had not correctly attended to the resolution. it only requests the president to lay such information before the house as he may think proper. are gentlemen then afraid to trust to the discretion of the president? are they apprehensive lest he should communicate that which is improper? he hoped they had more confidence in the executive. he thought this call should precede any resolutions. he could not disconnect the shutting of the port of new orleans from the cession of louisiana. there appeared to be a natural connection between these two events. he was afraid that the shutting the port was ominous of the disposition of spain to cede the province to france, independently of any encumbrances she may have imposed upon herself. he was afraid france in this transaction would consult her interests and convenience, and not our rights. we well knew the grounds on which that nation interpreted treaties, and we had no reason from that knowledge to repress our fears. an observation of the gentleman from virginia had given him great uneasiness. that gentleman had told us, if spain had ceded louisiana to france she had a right to cede it. this mr. l. was not prepared to say. he did not think spain had a right to give to america what she pleased; much less give her a new neighbor, under circumstances different from those by which she held the province. he was not, however, then disposed to discuss the abstract question involved in this subject. he trusted the resolution calling for information would be agreed to. the house need not fear that, in asking this information, they would not speak the sense of the people; and, if other measures were necessary, they would also, in adopting them, speak the sense of the nation. mr. bacon said it was not uncommon to hear of extraordinary occurrences in that house. one mode of reasoning yesterday had great weight, that asserted a connection between the resolution and the subject of new orleans, which had been taken up and referred to a committee with closed doors. one subject appeared to him to be not only nearly connected, but to form an essential part of the other. for what purpose this resolution should be separated from the general subject, he could not conceive. why do we want information, but that we may have a more clear view of the general subject? he could not see any detached purpose for which it was required. why then divide it into little detached parts? until he could hear reasons for such a division, he should be against the reference. mr. hemphill observed that the gentleman was mistaken in what passed yesterday. the gentleman from maryland had first stated the subjects as similar; that ground was afterwards abandoned, and they were considered as distinct. there were only two points connected with the subject before the house in which documents could be required or secrecy necessary. the one related to the cession of louisiana; the other to the shutting the port of new orleans. the former, though not referred to a committee, was as important as the latter, which had been referred. in the last case we deemed it important to have and request papers. the resolution before them related to the first point; it had been deemed of sufficient importance to refer it to a committee, and this afforded good reasons for calling for papers respecting the cession. he begged leave to refer to the message, which says the cession "will, if carried into effect, make a change in the aspect of our foreign relations, which will doubtless have just weight in any deliberations of the legislature connected with that subject." the house will perceive that the language of the message is hypothetical--the words are, "if carried into effect." how then can we deliberate on this subject, unless we know the degree of probability there is, that it will be carried into effect? a knowledge of the circumstances necessary to ascertain this, appeared to be absolutely indispensable. if likely to be carried into effect, the next question is, as to the time when it will be carried into effect. when these two inquiries were solved, another naturally offered itself: is france to take the province subject to existing treaties, or as she shall receive it at the time of delivery? all these circumstances it was necessary for congress to know, before they could act correctly. what necessity there was for secrecy in the discussion of this resolution, mr. hemphill could not conceive. all the information we have on the subject is contained in the president's message, which every person in the united states knows as well as we do. it appeared to him that when their deliberations turned on facts which every body knew, they ought to be public. his ideas of secrecy were these: that policy might require certain facts to be kept secret for a time; but, when made known, their arguments on them ought not to be secret. in this opinion he was strengthened by the rule of the house. [mr. h. here read the rule on that point, which prescribes that the galleries shall be cleared whenever a confidential communication shall be received from the president, or whenever the speaker or any other member shall inform the house that he has communications to make which he conceives ought to be kept secret.] mr. h. asked on which branch of this rule could the arguments of gentlemen be predicated? the president had not sent them a confidential communication, nor had any member said he had communications to make which he conceived ought to be kept secret. the information referred to in the rule meant facts, and not arguments drawn from facts. he concluded by saying he saw no occasion whatever for discussing this proposition with closed doors. mr. dawson.--the gentleman from south carolina (mr. lowndes) says there is a material connection between the shutting the port of new orleans and the cession of louisiana. after, then, that part of the discussion which related to new orleans had been ordered to be conducted with shut doors, how proper was it in him to introduce into debate a subject intimately connected with it? his opposition to the present motion did not arise from an indisposition fully to discuss the subject to which it referred; but from an indisposition to delay the discussion of the motion offered by his colleague. against the present motion he should vote, because it promised nothing useful, and might be mischievous. we have been told that this subject is important and pressing. that it was important he felt; but he did not believe it was pressing. he could say, if the time should ever arrive when it became that house to act, this was not the time. when the time did arrive, he was prepared to act. gentlemen were very anxious on this subject. he rejoiced to witness their anxiety. but he and his friends were not now to hear who were the friends of the western country. the people of that country doubted not the protection of the government. they were warmly attached to the government, and knew that every thing would be done, that ought to be done, to protect and defend their rights. mr. bacon said, if he understood the gentleman from pennsylvania, (mr. hemphill,) he perfectly agreed with him in opinion, that this resolution was connected with the subject of new orleans. he agreed with him as to their inseparable connection. but the only difference was that they inferred opposite consequences from the same premises. he, mr. b., contended that the resolution made a part of the same general subject, and ought not to be divided from it. they say it ought to be divided. mr. hemphill, replied that he had spoken as plainly as he could. he had said the subjects were distinct. mr. goddard.--the gentleman from massachusetts yesterday told us the call for information ought to be public, though the information itself should be secret. this reasoning had been satisfactory to him then; he had hoped it would have also proved so to-day. but it appears that he is now for sending us to a secret committee. mr. g. said in his opinion, the call ought to be public, whatever the nature of the information might be. this information gentlemen will either deny or grant. they say it is not to be denied. why then go into a committee? and if granted, why not grant it without assigning reasons, as well as with assigning them? are we to be told by the gentleman from virginia, there is no occasion for this call; that we have information enough? how does that honorable gentleman get his information? if from the cabinet, are we, the representatives of the people, to obtain it from him? surely this will be degrading to our characters. we may believe it is true as coming from him, but, as representatives, we should spurn at receiving it in such a channel. we want official information, but gentlemen say they want to go into secret committee on this resolution. what will be the good of this? though he could not say what was done in secret yesterday, he might say what had not been done. they had done nothing; and if they went into secret session again, the consequence would be the same. mr. randolph felt extremely reluctant to rise in this stage of the discussion, but he deemed it time to repel insinuations so frequently thrown out as perhaps to gain some credit, if they were permitted to pass entirely unnoticed. we are averse to take up the motion of the gentleman from connecticut, and wherefore? because, as our opponents would fain have it believed, we are insensible to the vast interest affected by the obstruction of the mississippi? no, sir, because we are alive to this delicate and momentous subject; because we wish to act upon it; because we wish to go into committee on the confidential message of the executive; because the information required by the motion before you is not necessary to determine us in the course which we ought, and, i trust, will pursue; and because these preliminary questions, whatever be their object, are, in effect, only calculated to retard and to embarrass the decision of this house on this great question. sir, i am content that gentlemen should repeat after each other the trite observations which have been so often reiterated of the magnitude of the object in question. i am content that they should make the best possible display of their ardor on this occasion. but wherefore this exhibition of a zeal so inordinate as to arrogate to itself all sensibility to the national welfare? since gentlemen insist upon it, since they provoke the discussion, i must request to be indulged in some remarks on the history of this subject. and in reply to the gentleman from connecticut, (mr. goddard,) i must be permitted to observe that such of my information as may have been derived from the executive is equally accessible to every member of this house, and i believe to every reputable citizen in the union, who chooses to apply for it. that, however, which i am about to present, is derived from a source accessible to the whole world. it is to be found in a document of inestimable value, (the debates of the virginia convention in ,) and might truly be said to be official. it is an account given in his official character of member of congress, and under the old confederation, by that able and eminent man, that faithful and illustrious public servant, the late governor of virginia, to the convention of that state, at their requisition. at his own suggestion the legislature of the state had declined to insist upon it. to the convention it was given, (however reluctantly,) as to a paramount authority. [here mr. e. read mr. monroe's speech.][ ] "after some desultory conversation, mr. monroe spoke as follows: mr. chairman--my conduct respecting the transactions of congress upon this interesting subject, since my return to the state, has been well known to many worthy gentlemen here. i have been often called upon before this, in a public line, and particularly in the last assembly, whilst i was present, for information in regard to these transactions; but have heretofore declined it, and for reasons that were held satisfactory. being amenable, upon the principles of the federal compact, to the legislature, for my conduct in congress, it cannot be doubted, if required, it was my duty to obey their directions; but that honorable body thought it best to dispense with such demand. the right in this assembly is unquestionably more complete, having power paramount to that; but even here i could wish it had not been exerted as i understand it to be, by going into committee for that purpose. before, however, i enter into this subject, i cannot but observe, it has given me pain to hear it treated by honorable gentlemen in a manner that has appeared not altogether free from exception. for they have not gone into it fully, and given a proper view of the transaction in every part, but of those only which preceded, and were subsequent to that, which had been the particular object of inquiry; a conduct that has seemed too much calculated to make an impression favorable to their wishes in the present instance. but, in making this observation, i owe it to those gentlemen to declare, that it is my opinion such omission has proceeded, not from intention, but their having forgotten facts, or to some cause not obvious to me, and which i make no doubt they will readily explain. "the policy of this state, respecting this river, has always been the same. it has contemplated but one object, the opening it for the use of the inhabitants, whose interest depended on it; and in this she has, in my opinion, shown her wisdom and magnanimity. i may, i believe, with propriety say, that all the measures that have at any time been taken by congress for that purpose, were adopted at the instance of this state. there was a time, it is true, sir, when even this state, in some measure, abandoned the object, by authorizing its cession to the court of spain. but let us take all circumstances into view, as they were at that time, and i am persuaded it will by no means show a departure from this liberal and enlightened system of policy, although it may manifest an accommodation to the exigencies which pressed on us at the time. the southern states were overrun, and in possession of the enemy. the governments of south carolina and georgia were prostrate, and opposition there at an end. north carolina made but a feeble resistance; and virginia herself was greatly harassed by the enemy in force at that time in the heart of the country, and by impressments for her own and the defence of the southern states. in addition to this, the finances of the united states were in a deplorable condition, if not totally exhausted; and france, our ally, seemed anxious for peace; and as the means of bringing the war to a more happy and speedy conclusion, the object of this cession was the hopes of uniting spain in it with all her forces. if i recollect aright, too, at this moment, the minister of the united states, at the court of madrid, informed congress of the difficulty he found in prevailing upon that court to acknowledge our independence, or take any measure in our favor, suggested the jealousy with which it viewed our settlements in the western country, and the probability of better success, provided we would cede the navigation of this river, as the consideration. the latter circumstances were made known to the legislature, and they had their weight. all inferior objects must yield to the safety of the society itself. a resolution passed to that effect. an act of congress likewise passed; and the minister of the united states had full authority to relinquish this valuable right to that court, upon the condition above stated. but what was the issue of this proposition? was any treaty made with spain that obtained any acknowledgment of our independence, although at war with great britain; and such acknowledgment would have cost her nothing? was a loan of money accomplished? in short, does it appear that even spain herself thought it an object of any importance? so soon as the war ended, this resolution was rescinded. the power to make such a treaty was revoked. so that this system of policy was departed from, only for a short time, for the most important object that can be conceived, and resumed again as soon as it possibly could be. "after the peace, it became the business of congress to investigate the relation of these states to the different powers of the earth, in a more extensive view than they had hitherto done, and particularly in the commercial line; and to make arrangements for entering into treaties with them on such terms as might be mutually beneficial for each party. as the result of the deliberations of that day, it was resolved, 'that commercial treaties be formed, if possible, with said powers, those of europe in particular, spain included, upon similar principles; and three commissioners, mr. adams, mr. franklin, and mr. jefferson, be appointed for that purpose.' so that an arrangement for a treaty of commerce with spain had already been taken. whilst these powers were in force, a representative from spain arrived, authorized to treat with the united states on the interfering claims of the two nations, respecting the mississippi, and the boundaries, and other concerns, wherein they were respectively interested. a similar commission was given to the honorable secretary of foreign affairs, on the part of the united states, with these ultimata, 'that he enter into no treaty, compact, or convention whatever, with the said representative of spain, which did not stipulate our right to the navigation of the mississippi, and the boundaries as established in our treaty with great britain.' and thus the late negotiation commenced, under auspices, as i supposed, very favorable to the wishes of the united states; for spain had become sensible of the propriety of cultivating the friendship of these states. knowing our claim to the navigation of the river, she had sent a minister hither principally to treat on that point; and the time would not be remote when, under the increasing population of the country, the inhabitants would be able to open it without our assistance or her consent. these circumstances being considered, was it not presumable she intended to make a merit of her concession to our wishes, and to agree to an accommodation upon that subject, that would not only be satisfactory, but highly pleasing to the united states? but what was the issue of this negotiation? how was it terminated? has it forwarded the particular object in view, or otherwise promoted the interests and the harmony of the states, or any of them! eight or ten months elapsed without any communications of its progress to congress. at length a letter was received from the secretary, stating that difficulties had arisen in his negotiation with the representative of spain, which, in his opinion, should be so managed as that even their existence should remain a secret for the present; and proposing that a committee be appointed with full power to direct and instruct him in every case relative to the proposed treaty. as the only ultimata appointed in his instructions respected the mississippi and the boundaries, it readily occurred that these occasioned the difficulties alluded to, and were those he wished to remove. and, for many reasons, this appeared, at least to me, an extraordinary proposition. by the articles of confederation nine states are necessary to enter into treaties. the instruction is the foundation of the treaty; for if it is formed agreeable thereto, good faith requires that it be ratified. the practice of congress has also been always, i believe, in conformity to this idea. the instructions under which our commercial treaties have been made, were carried by nine states. those under which the secretary now acted were passed by nine states. the proposition, then, would be, that the powers which, under the constitution, nine states only were competent to, should be transferred to a committee, and the object thereby to disengage himself from the ultimata already mentioned in his existing instructions. in this light the subject was taken up, and on these principles discussed. the secretary, mr. jay, being called before congress to explain the difficulties mentioned in his letter, presented to their view the project of a treaty of commerce, containing, as he supposed, advantageous stipulations in our favor, in that line; in consideration for which we were to contract to forbear the use of the navigation of the river mississippi for the term of or years, and earnestly advised our adopting it. the subject now took a decided form; there was no further ambiguity in it, and we were surprised, for reasons that have been already given, that he had taken up the subject of commerce at all. we were greatly surprised it should form the principal object of the project, and that a partial or temporary sacrifice of that interest, for the advancement of which the negotiation was set on foot, should be the consideration proposed to be given for it. but the honorable secretary urged, that it was necessary to stand well with spain; that the commercial project was a beneficial one, and should not be neglected; that a stipulation to forbear the use contained an acknowledgment, on her part, of the right in the united states; that we were in no condition to take the river, and therefore gave nothing for it; with other reasons which, perhaps, i have forgotten; for the subject in detail has nearly escaped my memory. we differed with the honorable secretary, almost in every respect. we admitted, indeed, the propriety of standing well with spain, but supposed we might accomplish that end, at least, on equal terms. we considered the stipulation to forbear the use, as a species of barter, that should never be countenanced in the councils of the american states, since it might tend to the destruction of the society itself; for a forbearance of the use of one river, might lead to more extensive consequences; to that of the chesapeake, the potomac, or any other of the rivers that emptied into it. in short, that the councils of the confederacy should be conducted with more magnanimity and candor, should contemplate the benefit of all parts upon common principles, and not the sacrifice of one part for that of another. there appeared to us a material difference between stipulating by treaty to forbear the use, and not being able to open the river. the former would be considered by the inhabitants of the western country as an act of hostility; the latter might be justified by our inability. and, with respect to the commercial part of the project, we really thought it an ill-advised one on its own merits solely. "thus was this project brought before congress, and so far as i recollect, in this form, and upon these principles. it was the subject of tedious and lengthy discussion in that honorable body. every distinct measure that was taken i do not now remember, nor do i suppose it of consequence. i have shown the outlines of the transaction, which is, if i apprehend rightly, all that the committee wish to possess. the communications of the secretary were referred to a committee of the whole house. the delegates of the seven easternmost states voted that the ultimata in the secretary's instructions be repealed; which was reported to the house, and entered on the journal by the secretary of congress, that the question was carried. upon this entry, a constitutional question arose to this effect: 'nine states being necessary, by the federal constitution, to give an instruction; and seven having repealed a part of an instruction so given, for the formation of a treaty with a foreign power, so as to alter its import, and authorize, under the remaining part thereof, the formation of a treaty, on principles altogether different from what the said instruction originally contemplated, can such remaining part be considered as in force, and constitutionally obligatory?' we pressed on congress for a decision on this point often, but without effect. notwithstanding this, i understood it was the intention of the secretary to proceed and conclude a treaty, in conformity to his project, with the minister of spain. in this situation i left congress. what i have since heard, belongs not to me to discover. other gentlemen have more ample information of this business, in the course it has taken, than i can possibly have been able to obtain; for, having done my duty whilst there, i left it for others who succeeded me to perform theirs, and i have made but little further inquiry respecting it. the animated pursuit that was made of this object, required, and, i believe, received, as firm an opposition. the southern states were on their guard, and warmly opposed it. for my part, i thought it my duty to use every effort in congress for the interest of the southern states. but so far as it depended on me, with my official character, it ceased. with many of those gentlemen, to whom i always considered it as my particular misfortune to be opposed, i am now in habits of correspondence and friendship; and i am concerned for the necessity which has given birth to this relation. "whether the delegates of those states spoke the language of their constituents; whether it may be considered as the permanent interest of such states to depress the growth and increasing population of the western country, are points which i cannot pretend to determine. i must observe, however, that i always supposed it would, for a variety of reasons, prove injurious to every part of the confederacy. these are well understood, and need not be dilated on here. if, however, such should be the interest of seven states, let gentlemen contemplate the consequences in the operation of the government, as it applies to this subject. i have always been of opinion, sir, that the american states, to all national objects, had, in every respect, a common interest. few persons would be willing to bind them together by a stronger or more indissoluble bond, or give the national government more power than myself. i only wish to prevent it from doing harm, either to states or individuals; and the rights and interests of both, in a variety of instances, in which they are now left unprotected, might, in my opinion, be better guarded. if i have mistaken any facts, honorable gentlemen will correct me. if i omitted any, and it has not been intentional, so i shall be happy with their assistance to supply the defect. "mr. monroe added several other observations, the purport of which was, that the interest of the western country would not be as secure under the proposed constitution as under the confederation; because, under the latter system, the mississippi could not be relinquished without the consent of nine states, whereas by the former, he said, a majority of seven states could yield it. his own opinion was, that it would be given up by a majority of the senators present in the senate, with the president, which would put it in the power of less than seven states to surrender it. that the northern states were inclined to yield it. that it was their interest to prevent an augmentation of the southern influence and power; and that as mankind in general, and states in particular, were governed by interest, the northern states would not fail of availing themselves of the opportunity given them by the constitution of relinquishing that river, in order to depress the western country, and prevent the southern interest from preponderating. "mr. henry[ ] then rose and requested that the honorable gentleman (mr. monroe) would discover the rest of the project, and what spain was to do on her part, as an equivalent for the cession of the mississippi. "mr. monroe.--mr. chairman, i do not thoroughly recollect every circumstance relative to this project. but there was to be a commercial intercourse between the united states and spain. we were to be allowed to carry our produce to the ports of spain, and the spaniards to have an equal right of trading hither. it was stipulated that there should be a reciprocity of commercial intercourse and benefits between the subjects of spain and the citizens of the united states. the manufactures of spain were to be freely imported and vended in this country, and our manufactures to be carried to spain, &c., without obstruction, and both parties were to have mutual privileges in point of commercial intercourse and connection. this, sir, is the amount of the project of spain, which was looked upon as advantageous to us. i thought myself that it was not. i considered spain as being without manufactures, as the most slow in the progress of arts, and the most unwise, with respect to commerce, of all nations under the sun, (in which respect i thought great britain the wisest.) their gentlemen and nobles look on commerce with contempt. no man of character among them will undertake it. they make little discrimination with any nation. their character is to shut out all nations, and exclude every intercourse with them, and this would be the case with respect to us. nothing is given to us by this project, but what is given to all other nations. it is bad policy, and unjustifiable on such terms to yield that valuable right. their merchants have great stocks in trade. it is not so with our merchants. our people require encouragement. mariners must be encouraged. on a review of these circumstances, i thought the project unwise and impolitic." haying completed the reading, mr. r. resumed his remarks. i have, said he, to ask pardon of the house for detaining them with the reading of so lengthy a document. that it contains perhaps the only correct historical detail extant of this truly curious transaction, must constitute my apology. i will now ask, mr. speaker, who ever have been, and still are, the unshaken friends of the navigation of the mississippi, and of the western interests of this union? it is not my wish, sir, on this occasion, to cast gentlemen opposed to us into the shade--to throw them into the background. all we ask is an equal share of confidence in our zeal to assert this great right, until we shall have proved ourselves unworthy of it. what is there then exhibited from the earliest period of our history? what fact has transpired which renders us undeserving of that confidence, or which entitles gentlemen on the other side of the house exclusively to it? shall we then silently submit to the intolerant assumption on their part of all feeling for this important right, involving the vital interests of our country? shall we sit down contented under the imputation of lukewarmness in this cause? or, shall we tell those gentlemen that under every circumstance, and in all situations, with closed doors, as well as with open doors, we have been, are, and ever will be, the unalterable supporters of the free navigation of the mississippi? the sentiments which have been displayed in the course of this proceeding, present a phenomenon in the history of what are termed regular governments. when an administration have formed the design of subverting the public liberties--of enriching themselves or their adherents out of the public purse, or of crushing all opposition beneath the strong hand of power--war has ever been the favorite ministerial specific. hence have we seen men in power too generally inclined to hostile measures, and hence the opposition have been, as uniformly, the champions of peace--not choosing to nerve with new vigor (the natural consequence of war) hands, on whose hearts or heads they were unwilling to bestow their confidence. but how shall we account for the exception which is now exhibited to this hitherto received maxim? on the one part the solution is easy. an administration under which our country flourishes beyond all former example--with no sinister views--seeking to pay off the public encumbrances, to lessen the public burdens, and to leave to each man the enjoyment of the fruits of his own labor, are, therefore, desirous of peace, so long as it can be preserved consistently with the interests and honor of the country. on the other hand, what do you see? shall i say an opposition sickening at the sight of the public prosperity, seeking through war, confusion, and a consequent derangement of our finances, that aggrandizement which the public felicity must for ever forbid? no, sir, my respect for this house and for those gentlemen forbids this declaration, whilst, at the same time, i am unable to account on any other principle for their conduct. mr. r. concluded by saying, that he had forborne these observations until they were extorted from him. he had hoped that gentlemen would have let the business take its course, after the decision of yesterday, and that the house would have gone into committee on the confidential message; but gentlemen had insisted on discussing the merits of the navigation on a preliminary question. the business having taken that turn, he thought it due to himself and friends to repel the odium which it was endeavored to attach to them. mr. dana thought it was not necessary on this subject to enter into a history of political parties in this country. and when the gentleman from virginia undertook to give a history, he had no idea that he was about giving details of secret history. he had supposed he was about offering a general view of the subject. he did not know that it was to be stated who were friendly or unfriendly to the rights of our western citizens, much less that there was an established hereditary hostility to them. he had supposed that all the gentlemen on that floor had expressed the wishes of the people; he had supposed there was but one opinion; he had heard of no insinuation of difference. the only difference which he had thought existed was as to the means to be used, and the time when those means should be carried into effect. but as to the natural right, and the ultimate enjoyment of the nation to the free navigation of the mississippi, he asked what gentleman had charged another with any doubts on that? and when we all agree in this, whence the necessity of calling up the animosities of party? may not gentlemen express their opinions in favor of decided measures, when the voice of the nation had been so audibly expressed, without such expression being construed into a censure upon others? when, too, the opinions of other gentlemen on fundamental points coincided with your own? is it necessary, when the whole nation is alive, to be moderate in the expression of our ideas? if we do not come from that part of the union more immediately affected by the late measures at new orleans, are we therefore to be indifferent and unconcerned spectators of events? if, standing here as representatives of the united states, we are not at liberty to attend to any thing not confined to the trifling district of country we may each of us represent, miserable is the ground on which we stand, and humble indeed our condition! but let me say, even on this ground, the ship-owners and the merchants on the atlantic are deeply interested. our western citizens are certainly more deeply interested in the freedom of the mississippi; but it goes to the great interests of navigation generally. they feel it most; but we feel it much. this is all i deem it necessary, said mr. d., to observe on the remarks of the gentleman from virginia on his historical detail. sir, this ought not to be made a party question. with respect to the motion before the house, my colleague has drawn it in terms the most respectful. gentlemen propose to refer it to a committee of the whole. to this we object, because we want the information promptly. but the votes of gentlemen prevail, and it is referred. our next step is to refer it immediately, to avoid delay. to obtain information, full and prompt, is the end of our endeavors. why are we told of the inconsistency of our means? the course we pursue is plain and direct; that which carries us steadily to our obtaining information; and if the house will not give it to us in the way we wish, we are for taking it in the best way we can. let it be remarked, that, if no obstacles had taken place at new orleans, the subject of the cession of louisiana is referred to in the message of the president. is not the information, we ask, important, in the general view, of who are to be our neighbors; where, from the dispersed population of our citizens, the union is most vulnerable? and in this light it would have been proper to get the information, even if the measures at new orleans had not occurred. it makes no difference whether those measures are the measures of spain or of france. the two points were not necessarily connected, though i admit that the proceedings at new orleans have a bearing on the general subject. with regard to the measures at new orleans, we have information, and have obtained it. that information has been referred to a committee of the whole. we now ask information respecting the cession; and having got it, let us refer that also, and deliberate on the measures proper to be taken. cannot the logical talents of the gentleman from massachusetts (mr. bacon) distinguish between information and measures? will he say that premises and conclusions are the same thing? this information is that on which we are to deliberate. i had supposed facts necessary to legislate on. i had thought there was, to be sure, a connection between one step and another which follows. but will the gentleman say, that whenever we ask information, we conclude upon measures? the yeas and nays were then taken on the call of mr. griswold, on going into a committee of the whole on the state of the union, which was lost--yeas , nays , as follows: yeas.--phanuel bishop, thomas boude, john campbell, manasseh cutler, samuel w. dana, john davenport, thomas t. davis, william dickson, william eustis, calvin goddard, roger griswold, william barry grove, seth hastings, william helms, joseph hemphill, archibald henderson, benjamin huger, samuel hunt, thomas lowndes, ebenezer mattoon, samuel l. mitchill, lewis r. morris, thomas morris, elias perkins, thomas plater, nathan read, john rutledge, john cotton smith, john stanley, john stratton, samuel tenney, samuel thatcher, thomas tillinghast, george b. upham, killian k. van rensselaer, peleg wadsworth, lemuel williams, and henry woods. nays.--willis alston, john archer, john bacon, theodorus bailey, richard brent, robert brown, william butler, thomas claiborne, matthew clay, john clopton, john condit, richard cutts, john dawson, lucas elmendorph, ebenezer elmer, edwin gray, andrew gregg, john a. hanna, joseph heister, william hoge, james holland, david holmes, george jackson, michael leib, david meriwether, thomas moore, anthony new, thomas newton, jun., joseph h. nicholson, john randolph, jun., john smilie, john smith, (of new york,) john smith, (of virginia,) josiah smith, samuel smith, henry southard, richard stanford, joseph stanton, jun., john stewart, john taliaferro, jun., david thomas, philip r. thompson, abram trigg, john trigg, john p. van ness, joseph b. varnum, isaac van horne, and thomas wynns. mr. griswold said, that notwithstanding the unfortunate situation they were placed in by the refusal of the house, he still deemed it his duty to move other resolutions, which he would read, and move to be referred to a committee of the whole. mr. g. then moved the following resolutions: _resolved_, that the people of the united states are entitled to the free navigation of the river mississippi. _resolved_, that the navigation of the river mississippi has been obstructed by the regulations recently carried into effect at new orleans. _resolved_, that the right of freely navigating the river mississippi ought never to be abandoned by the united states. _resolved_, that a committee be appointed to inquire whether any, and, if any, what, legislative measures are necessary to secure to the people of the united states the free navigation of the river mississippi. mr. dawson asked if these resolutions were not necessarily connected with a subject which the house had determined should be discussed in private? if, by this arrangement, other gentlemen had been precluded from offering resolutions, he would ask if it were right in the gentleman from connecticut to violate a general injunction laid upon all the members? mr. griswold.--there is a message from the president, of the d of december, on this subject that is publicly entered on the journals.[ ] it is on this message that these resolutions are predicated. i trust i understand the rules of the house well enough to know that i am not to bring forward what it has been enjoined shall be secret. the question was then taken without further debate, on taking up the above resolutions for consideration, and lost--yeas , nays . mr. randolph then called for the consideration of the president's confidential message, when the galleries were cleared. friday, january . _navigation of the mississippi._ (secret session.) on a motion made and seconded, the house was cleared of all persons present, except the members and the clerk: whereupon, the house again resolved itself into a committee of the whole house on the messages from the president of the united states, of the twenty-second and thirtieth ultimo, and the documents transmitted therewith; and, after some time spent therein, mr. speaker resumed the chair, and mr. varnum reported that the committee had again had the said messages and documents under consideration, and come to a resolution thereupon; which he delivered in at the clerk's table, where the same was read as follows: "_resolved_, that this house receive with great sensibility the information of a disposition in certain officers of the spanish government, at new orleans, to obstruct the navigation of the river mississippi, as secured to the united states by the most solemn stipulations. "that, adhering to that humane and wise policy which ought ever to characterize a free people, and by which the united states have always professed to be governed; willing, at the same time, to ascribe this breach of compact to the unauthorized misconduct of certain individuals, rather than to a want of good faith on the part of his catholic majesty; and relying, with perfect confidence, on the vigilance and wisdom of the executive, they will wait the issue of such measures as that department of the government shall have pursued for asserting the rights and vindicating the injuries of the united states; holding it to be their duty, at the same time, to express their unalterable determination to maintain the boundaries and the rights of navigation and commerce through the river mississippi, as established by existing treaties." the house proceeded to consider the said resolution at the clerk's table: whereupon, so much as is contained in the first clause thereof, being again read, in the words following, to wit: "_resolved_, that this house receive with great sensibility the information of a disposition in certain officers of the spanish government, at new orleans, to obstruct the navigation of the river mississippi, as secured to the united states by the most solemn stipulations." the question was taken that the house do concur with the committee of the whole house in their agreement to the same; and resolved in the affirmative. the last clause of the said resolution being again read, in the words following, to wit: "that, adhering to that humane and wise policy which ought ever to characterize a free people, and by which the united states have always professed to be governed; willing, at the same time, to ascribe this breach of compact to the unauthorized misconduct of certain individuals, rather than to a want of good faith on the part of his catholic majesty; and relying, with perfect confidence, on the vigilance and wisdom of the executive, they will wait the issue of such measures as that department of the government shall have pursued for asserting the rights and vindicating the injuries of the united states; holding it to be their duty, at the same time, to express their unalterable determination to maintain the boundaries and the rights of navigation and commerce through the river mississippi, as established by existing treaties:" a motion was made, and the question being put to amend the said last clause of the resolution, by striking out therefrom the words following, to wit: "and relying, with perfect confidence, on the vigilance and wisdom of the executive, they will wait the issue of such measures as that department of the government shall have pursued for asserting the rights, and vindicating the injuries of the united states:" it passed in the negative--yeas , nays , as follows: yeas.--thos. boude, manasseh cutler, samuel w. dana, john davenport, john dennis, calvin goddard, roger griswold, william barry grove, seth hastings, joseph hemphill, archibald henderson, william h. hill, benjamin huger, samuel hunt, thomas lowndes, ebenezer mattoon, lewis r. morris, elias perkins, thomas plater, nathan read, john rutledge, john cotton smith, john stanley, john stratton, samuel tenney, samuel thatcher, george b. upham, killian k. van rensselaer, lemuel williams, and henry woods. nays.--willis alston, john archer, john bacon, theodorus bailey, richard brent, robert brown, william butler, thomas claiborne, matthew clay, john clopton, john condit, richard cutts, thomas t. davis, john dawson, william dickson, lucas elmendorph, ebenezer elmer, william eustis, edwin gray, andrew gregg, john a. hanna, joseph heister, william helms, william hoge, james holland, david holmes, george jackson, michael leib, david meriwether, samuel l. mitchill, thomas moore, james mott, anthony new, thomas newton, jr., joseph h. nicholson, john randolph, jr., john smilie, john smith, (of new york,) josiah smith, samuel smith, henry southard, richard stanford, joseph stanton, jr., john stewart, john taliaferro, jr., david thomas, philip r. thompson, abram trigg, john trigg, philip van cortlandt, joseph b. varnum, isaac van horne, and thomas wynns. another motion was then made, and the question being put, to amend the said last clause of the resolution, by striking out therefrom the word "vindicating," next before the words "the injuries of the united states," and inserting the word "redressing," in lieu thereof, it passed in the negative. the question was then taken that the house do concur with the committee of the whole house in their agreement to the said last clause of the resolution, and resolved in the affirmative. a motion was then made and seconded that the house reconsider their decision on the said last clause of the resolution; and the question being put thereupon, it was resolved in the affirmative. a division of the question was then called for: whereupon the first member of the said last clause of the resolution being again read, in the words following, to wit: "that adhering to that humane and wise policy which ought ever to characterize a free people, and by which the united states have always professed to be governed; willing, at the same time, to ascribe this breach of compact to the unauthorized misconduct of certain individuals, rather than to a want of good faith on the part of his catholic majesty:" the said division of the question was objected to, as not being in order, and the speaker having decided the same was in order, an appeal was made to the house from the decision of the chair; and on the question, "is the decision of the chair in order?" it was resolved in the affirmative. on the question that the house do agree to the said first member of the last clause of the resolution, it was unanimously resolved in the affirmative, by yeas and nays, every member present voting in the affirmative, to wit: yeas.--willis alston, john archer, john bacon, theodorus bailey, thomas boude, richard brent, robert brown, william butler, thomas claiborne, matthew clay, john clopton, john condit, richard cutts, samuel w. dana, john davenport, john dawson, john dennis, william dickson, lucas elmendorph, ebenezer elmer, william eustis, calvin goddard, edwin gray, andrew gregg, roger griswold, william barry grove, john a. hanna, seth hastings, joseph heister, william helms, joseph hemphill, archibald henderson, william h. hill, william hoge, james holland, david holmes, benjamin huger, samuel hunt, george jackson, michael leib, thomas lowndes, ebenezer mattoon, david meriwether, samuel l. mitchill, thomas moore, lewis r. morris, anthony new, thomas newton, jr., joseph h. nicholson, elias perkins, thomas plater, john randolph, jr., nathan read, john rutledge, john smilie, john cotton smith, john smith, (of new york,) josiah smith, samuel smith, henry southard, richard stanford, john stanley, joseph stanton, jr., john stratton, john taliaferro, jr., samuel tenney, samuel thatcher, david thomas, philip r. thompson, abram trigg, philip van cortlandt, joseph b. varnum, isaac van horne, killian k. van rensselaer, and thomas wynns. the third member of the said last clause of the resolution being again read, in the words following, to wit: "holding it to be their duty, at the same time, to express their unalterable determination to maintain the boundaries, and the rights of navigation and commerce through the river mississippi, as established by existing treaties:" a motion was made, and the question being put, to amend the same by striking therefrom the words "existing treaties," and inserting the word "treaty" in lieu thereof, it passed in the negative. on the question that the house do agree to the said third member of the last clause of the resolution, it was unanimously resolved in the affirmative, by yeas and nays, every member present voting in the affirmative. and then the main question being taken, that the house do agree to the said resolution, as reported from the committee of the whole house, it was resolved in the affirmative--yeas , nays , as follows: yeas.--willis alston, john archer, john bacon, theodorus bailey, richard brent, robert brown, william butler, thomas claiborne, matthew clay, john clopton, john condit, richard cutts, john dawson, william dickson, lucas elmendorph, ebenezer elmer, william eustis, edwin gray, andrew gregg, john a. hanna, joseph heister, william helms, william hoge, james holland, david holmes, george jackson, michael leib, david meriwether, samuel l. mitchill, thomas moore, anthony new, thomas newton, jr., joseph h. nicholson, john randolph, jr., john smilie, john smith, (of new york,) josiah smith, henry southard, richard stanford, joseph stanton, jr., john taliaferro, jr., david thomas, philip r. thompson, abram trigg, john trigg, philip van cortlandt, joseph b. varnum, isaac van horne, and thomas wynns. nays.--thomas boude, samuel w. dana, john davenport, john dennis, calvin goddard, roger griswold, seth hastings, joseph hemphill, archibald henderson, benjamin huger, samuel hunt, thos. lowndes, ebenezer mattoon, lewis r. morris, elias perkins, thomas plater, nathan read, john rutledge, john cotton smith, john stanley, john stratton, samuel tenney, samuel thatcher, killian k. van rensselaer, and lemuel williams. _resolved_, that the injunction of secrecy upon the members of this house, so far as relates to the resolution last recited, and the proceedings of the house on the messages from the president of the united states, of the twenty-second and thirtieth ultimo, be taken off. monday, january . another member, to wit, james a. bayard, from delaware, appeared, and took his seat in the house. a new member, to wit, peter early, returned to serve in this house, as a member from the state of georgia, in the room of john milledge, who hath resigned, appeared, was qualified, and took his seat in the house. _monuments to generals, and to the captors of andre._ a message from the senate informed the house that the senate have passed the bill entitled "an act to carry into effect several resolutions of congress, for erecting monuments to the memories of the late generals wooster, herkimer, davidson, and scriven," to which they desire the concurrence of this house. the said bill was read twice and committed to the committee appointed the fourth instant, to prepare and bring in a bill for erecting a monument to the memory of general herkimer, pursuant to a resolution of congress, passed the fourth day of october, one thousand seven hundred and seventy-seven. sundry motions being made and seconded, that the house do come to the following resolutions respectively, to wit: _resolved_, that a monument be erected to the memory of major general joseph warren, who was slain on bunker's hill on the seventeenth day of june, one thousand seven hundred and seventy-five; and that the sum of ---- be appropriated therefor. _resolved_, that a monument be erected to the memory of general hugh mercer, who was slain at princeton, on the third day of january, one thousand seven hundred and seventy-seven; and that the sum of ---- dollars be appropriated for that purpose. _resolved_, that a monument be erected to the memory of general francis nash, who was slain at the battle of germantown; and that the sum of ---- dollars be appropriated for that purpose. _resolved_, that a monument be erected to the memory of general richard butler, who was killed gallantly fighting in an action with the indians, on the fourth day of november, one thousand seven hundred and ninety-one; and that ---- dollars be appropriated for that purpose. _resolved_, that a monument be erected to the memory of general nathaniel woodhull, who commanded the militia on long island, in the year one thousand seven hundred and seventy-six, and was then taken prisoner and most cruelly put to death by the enemy; and that ---- dollars be appropriated for that purpose. _resolved_, that a monument be erected to commemorate the virtuous and patriotic conduct of john paulding, david williams, and isaac van wert, who, on the twenty-third day of september, one thousand seven hundred and eighty, intercepted major john andre, adjutant general of the british army, returning from the american lines in the character of a spy; and that the sum of ---- dollars be appropriated for that purpose. _ordered_, that the said motions, severally, be referred to the committee to whom was this day committed the bill sent from the senate, entitled "an act to carry into effect several resolutions of congress for erecting monuments to the memories of the late generals wooster, herkimer, davidson and scriven." _national university._ mr. van ness presented a representation from samuel blodget, on the subject of a national university, as follows: "the memorial of samuel blodget, late supervisor of the city of washington, represents that, owing his appointment chiefly to his zeal in forming several probationary plans for a national university, he conceived it an indispensable duty, after the death of washington, to follow the commanding advice and noble example of the common father of his country, so irresistibly portrayed in his farewell address, and in the clause of his will annexed to his liberal donation therefor. in thus calling, most respectfully, the attention of your honorable body to this part of the will of washington, he fulfils a promise made in behalf of more than one thousand subscribers to the same object, whose respectable names accompany this memorial, with a request that a committee may be appointed to consider what portion of the public lots and lands in the western territory of the united states, shall be appropriated by congress to this important institution, in addition to the contents of either of the sites already contemplated therefor within the city of washington, by washington himself, and by the commissioners thereof. and further to consider the expediency (should it comport with the monumental plan to be adopted) of erecting the statue of , or in lieu thereof an appropriate and characteristic equestrian statue of the original founder of the national university, as a beautiful centre-piece for the entire plan, to be surrounded by halls and colleges as they may be built in succession, by the fund to which the whole people of america are now so liberally and so honorably contributing by voluntary subscriptions from maine to georgia inclusive; thus virtually following the ancient custom of the original americans, who, men, women, and children, carried a stone to the monumental pile of a beloved chief." the memorial was accompanied by a plan of the equestrian statue of washington, surrounded by halls and colleges regularly arranged, the whole to be styled the monument to washington. referred to a select committee--ayes , nays . the following members constitute the committee: mr. van ness, mr. taliaferro, mr. hill, mr. elmendorph, and mr. cutler. tuesday, january . the house proceeded to consider the amendment proposed by the senate to the bill entitled "an act for the relief of charles hyde;" whereupon, _resolved_, that this house do agree to the said amendment. _cession of louisiana to france._ mr. griswold moved that the house resolve itself into a committee of the whole on the state of the union, intending, should he succeed, to call up his resolution presented on the th instant, viz: "_resolved_, that the president of the united states be requested to direct the proper officer to lay before this house, copies of such official documents as have been received by this government, announcing the cession of louisiana to france, together with a report, explaining the stipulations, circumstances, and conditions, under which that province is to be delivered up, unless such documents and reports will, in the opinion of the president, divulge to the house particular transactions not proper at this time to be communicated." i recollect, said mr. g., when i proposed on a former day that the house should go into committee of the whole for the purpose of considering this resolution, the principal arguments in opposition were drawn from its supposed connection with a subject which had been referred to a secret committee, and, therefore improper for previous or public discussion. those arguments have now lost their weight. the house have decided on those confidential subjects, and their resolution was published, and i believe it will appear that i was not incorrect in my opinion, that this resolution has no concern with any confidential communications. when before under consideration, the inquiry contemplated was considered important. the information requested must be in possession of the executive; it cannot be supposed that such documents as would be useful to the house, do not exist in the executive cabinet. we cannot legislate with a proper understanding, unless we are informed of all the circumstances, conditions, and stipulations, under which that territory is ceded to france. i will not believe that the executive has neglected to demand such explanations as the honor and interest of the united states require. it is this official information which we want. as we are unembarrassed by other subjects, either of a public or secret nature, i hope the house will now come to a decision; i shall call for the yeas and nays. mr. dawson moved a postponement of the resolution to a future day. mr. mott said he was opposed to the resolution, but was for going into committee of the whole, and deciding upon it, rather than to be troubled with it from day to day. mr. dana.--i consider the refusal to go into a committee of the whole on the state of the union as a negative upon the resolution. we have been told before by the gentleman from virginia, (mr. randolph,) that it does not amount to a refusal of the resolution. true, it may not be so harsh a mode of putting it aside, but the effect is virtually the same. will it be made a question whether it is proper to ask for information? the president has recommended the subject to our attention in his message. it is not only proper, but of course becomes our duty, to deliberate, and to request such information from the president, as will assist and enlighten us in our proceedings. it is his constitutional province to do this, and it would be a reflection on him to suppose that he would withhold any information from the house, on a subject which he had thought so important, as to form part of an official message. it could not have been inserted merely for the sake of rounding off a period. no, sir, the president has undoubtedly sufficient reasons for mentioning this, as a subject worthy of our deliberations; he is designated by the constitution as the proper person from whom information on subjects of this nature is to be derived; he is supposed to combine the whole; it is not proper to receive it but from an official source. the general subject is mentioned in the following terms: "the cession of the spanish province of louisiana to france, which took place in the course of the late war, will, if carried into effect, make a change in the aspect of our foreign relations, which will doubtless have just weight in any deliberations connected with that subject." are we to suppose the executive has not been vigilant in ascertaining the circumstances attending this event? no. are we to suppose he is unwilling to inform us what they are? no. he must be supposed willing to give the information. therefore, why should gentlemen prevent us from obtaining that intelligence, which is presumed to exist, and which the executive must be willing to give? mr. randolph was averse to going into a committee of the whole house on the state of the union, if it were understood that the resolution of the gentleman from connecticut was to be taken up. it was not very material to him in what way the house signified their dissent to the measure; but, preferring that which was least circuitous, he hoped they would refuse to take it up in committee. much pains having been taken to impress a belief that the president had communicated to the house a fact of which he possessed no official information, mr. r. begged the house to recollect that the tortured ingenuity of gentlemen had been unable fairly to infer the fact from the executive communications; nor could it be implied from a refusal to concur in the proposed resolution. his opposition to it grew out of the resolution itself. it conveys the suspicion that spain has ceded louisiana to france indefinitely, thereby giving to france some color of claim to the countries formerly comprised under that appellation; or that she has made the cession by limits incompatible with her engagements to us; and that in either case our right to the navigation of the mississippi may have been impaired. for, if you suppose in this transfer of her property that spain has paid due regard to her stipulations with us, the resolution ceases to have an object. now, sir, wherefore cast this imputation on spain?--especially at this crisis, when, as i am informed from a respectable source, one of the first characters in the union is recently nominated minister to that court, for the purpose of adjusting all differences on this subject? i should have supposed another reason would have deterred the gentleman from persisting in this call. that gentleman and his friends had recorded on the journals of this house their solemn determination, however sensibly they might feel the injuries inflicted on the rights and interests of these states, to refuse all co-operation in the support of those rights and interests so long as the direction of the government should be retained by those who now possess it. for, after having expressed their disapprobation of that clause in a resolution lately adopted by the house to affect our rights of limits and of navigation through the mississippi, objecting to no other part of it, they had, nevertheless, refused to give their assent to it because of this objectionable passage. there was a time, sir, when such conduct would have been denounced by a portion of this house as the essence of jacobinism and disorganization. mr. r. concluded by saying that he thought it unwise at this time, in the very cradle of the negotiation, to throw out insinuations which would have a tendency to irritate or disgust the spanish court. mr. griswold.--i did not expect that the gentleman from virginia (mr. randolph) would, in the face of the journal now on the table, in contradiction to the knowledge of every gentleman in this house, have made the declaration we have just heard. have we given our vote that we would not defend the free navigation of the mississippi? have we not been ready to unite in adopting those measures which the infraction of treaties and our violated rights demand? i appeal to our journals. what has been done, there appears, and will contradict the assertions of that gentleman. when the resolution was under consideration in the secret committee, which the gentleman (mr. randolph) emphatically called his offspring, there were two votes taken on certain parts or members of it, previous to the main question. a motion was made to strike out the following clause: "and relying with perfect confidence on the vigilance and wisdom of the executive, they will wait the issue of such measures as that department of the government shall have pursued for asserting the rights and vindicating the injuries of the united states." i voted against this part of the resolution for two reasons: first, because i could not express a confidence which i did not feel; and secondly, because i was not satisfied with a resolution to do nothing. i thought we ought to do something; that it was not proper for the legislature to sit as idle spectators of an important political transaction, which required legislative interference. i thought we ought to prepare for the worst. these were the reasons, mr. speaker, which influenced my conduct upon the motion for striking out. but how did we vote on the motion for agreeing to the following clause? "holding it to be their duty at the same time to express their unalterable determination to maintain the boundaries, and the rights of navigation and commerce, through the river mississippi, as established by existing treaties." did we refuse our assent? did we object to a syllable contained in this part of the resolution? no, sir, the vote was unanimous. every member of the house stands pledged to support the sentiments therein expressed. on this point there was no difference of opinion. i appeal to your journals, sir, and to the recollection of every gentleman who was on that secret committee, whether i am not correct. it is true that there was a difference of opinion in the secret committee upon the other part of the resolution; on one side of the house it appeared proper to express great confidence in the present executive, and, leaving every thing to that department, to do nothing ourselves; whilst on the other side, as we did not feel that confidence, we could not express it, and believing the occasion demanded legislative interference, we thought it necessary to prepare for the worst. how, then, can we be charged by the gentleman from virginia (mr. randolph) with having recorded our determination not to protect the rights and interests of these states, when our votes, appearing on your journal, not only prove our unalterable determination to defend those rights, but likewise prove that we were willing to leave the vindicating of those rights entirely to the executive, and were earnestly desirous of adding thereto all the aid which the legislature could contribute, and that we have been prevented from pursuing this course by the gentleman from virginia, (mr. randolph,) and his friends? i must be permitted again to express my astonishment that the gentleman can with any face make these charges, and again to appeal to your journal, and the recollection of every gentleman, for a contradiction of these unmerited aspersions. when the main question was taken we refused our assent. not because we were unwilling to adopt such measures as circumstances might require; but because we could not sanction those expressions of unbounded confidence in the executive, and that determination to do nothing which the resolution contained. as another argument against this resolution, we are told it is calculated to irritate and impede a negotiation, which the gentleman from virginia (mr. randolph) has informed us is about to commence, and, i must say, about to commence at a very late period; after an expiration of one year since the cession of that territory to france. let us recur to the resolution: "_resolved_, that the president of the united states be requested to direct the proper officer to lay before this house copies of such official documents as have been received by this government, announcing the cession of louisiana to france, together with a report explaining the stipulations, circumstances, and conditions, under which that province is to be delivered up; unless such documents and reports will, in the opinion of the president, divulge to the house particular transactions, not proper at this time to be communicated." is this the language of irritation? is there an offensive sentence either to the court of spain or the republic of france? not one. so far from impeding negotiation, it might lead to measures which would accelerate the agency, and ensure terms more advantageous. to be ready for any and every event, would evince on our part a disposition to demand, and the power to enforce reparation if refused. inactivity and silence in the legislative department will indeed retard successful negotiation, by depriving a minister of powerful and unanswerable arguments. mr. s. smith said, it would be recollected, that on the first day the resolution of the gentleman from connecticut was offered, it struck him as improper, and that it was at his instance it had been ordered to lie on the table. the more he had considered the nature of that resolution, the more averse to it had he become. so far from his original dislike to it having been removed by the arguments advanced, it had been confirmed, and particularly by what had fallen from the gentleman from virginia. the gentleman from connecticut does not perceive, or is unwilling to acknowledge, that there is any thing in his resolution that implies unfairness on the part of spain, or that derogates from the honor of her character; but let him read the resolution. mr. s. then read as follows: "that the president of the united states be requested to direct the proper officer to lay before this house copies of such official documents as have been received by this government, announcing the cession of louisiana to france, together with a report explaining the stipulations, circumstances, and conditions under which the province is to be delivered up." does not the gentleman who drew this resolution seem to believe, from the express words of it, that the conduct of spain has been unfair, and that she may have adopted measures derogatory to her character and honor? shall we send a minister hampered by such a resolution? let the gentleman recollect the conduct of this house on a similar occasion. when an order of the british court issued to seize all american vessels, wherever found, certain spirited resolutions were proposed in that house to show the dissatisfaction of the government at this unjust measure, and its disposition, if necessary, to resist it. the gentleman will recollect, that at that crisis, and pending those very resolutions, a minister was appointed. did not the gentleman's friends immediately state the impropriety of passing those resolutions? the fact was, that gentlemen on both sides felt the force of the suggestion, and the resolutions were withdrawn. mr. s. thought it wise, prudent, and proper, to pursue on this occasion the same course. he could conceive of no good end which could be answered by the resolution. is the gentleman really in earnest in his inquiries at this time? and if the effect of his resolution should be to show that the stipulations are injurious to our rights, would he know how to act? he would be for acting spiritedly, no doubt; and yet, at this very moment, when he professed such a declaration, he declares to the world, that he has no confidence in the executive, who is now pursuing the proper measures! i cannot, therefore, conceive that the gentleman is in earnest, after the vote which he and his friends have given of a want of confidence in the executive. i cannot consider their conduct as intended to promote the real interests of their country; but as calculated to bring the country into a situation from which it cannot withdraw, without pursuing measures attended with expense and blood. mr. randolph.--i trust neither this house, nor the american people, can be deceived as to this transaction. what i have stated the journals confirm, and i should call for the reading of them, if i were not informed by the clerk that they were at the printer's. a resolution passed this house, expressing its disposition to assert the rights of the united states, in relation to their established limits, and to the navigation of the mississippi. that resolution contained an expression of confidence in the executive. gentlemen moved to strike it out and failed. in every other part they concurred, separately and distinctly. but to the whole they gave their negative. what is the inference? that they will not assert our rights because they have no confidence in the executive. liken this to a bill: a clause is moved to be stricken out; it is retained. those who object to that clause vote against the final passage of the bill. it is nevertheless carried; it becomes law. are not those who voted against it fairly to be considered as enemies to the law? so have i a right to enumerate that gentleman and his friends, opponents to the measure which i submitted to the house; and yet, sir, although i stated every fact mentioned by the gentleman himself, (mr. griswold,) except the final vote, which he took care to keep out of sight; although i mentioned expressly their concurrence in every other part of the resolution, it is asked with what face i can make such a statement in the teeth of your journals? sir, let me tell that gentleman, not with the face of a prevaricator, but with the face of a man of honor and a gentleman; not with the face of one using terms intended to convey more than meets the ear, with a view of explaining them away when convenient; not with a design of simulating what i do not believe, or of dissembling my real purpose. the house will recollect, sir, that in the committee, the objection of the gentleman from connecticut was confined solely to the expression of confidence in the executive, there was then no reason to believe that there was any other. after protesting against this expression, and suffering it even to prevent his concurrence in any measures for the common good, he comes forward with another resolution, whether to benefit that cause which he has refused to espouse, or to diminish that confidence which appears so much to have disturbed him, i leave the house to determine. but louisiana is ceded to france. it is so. of this fact we have official information. but let it be remembered that it is yet in the hands of spain. the injury which we have received is from officers of that crown. the reparation is to be demanded from the same quarter. now what has the information desired by gentlemen to do with any such negotiation? when france shall have taken possession of this province; when she shall have made pretensions inconsistent with our honor, or with our rights in that quarter, then will it be time enough to take up this subject. this is a transaction, which, if it ever does take place, must pass under the immediate cognizance and control of this house. let gentlemen recollect that the treaty of cession is of an old date, and louisiana is, notwithstanding, still in the possession of spain. shall we then suggest to france our expectation that she will set up a claim inconsistent with our rights; that she may have received a colorable pretence for violating them? shall we thereby invite her aggressions? in whatever hands this country may be eventually placed, or by whomsoever our rights may be invaded, i doubt not a disposition will always be found to defend them. but it is with the actual possessors that we must negotiate; it is from them we must demand redress, and not from any nation who may possess a reversionary right to the province of louisiana. mr. bacon said that there was one question before the house, and they were debating upon another, in an animated manner and on an extensive scale, before they come to it. it would be recollected, he hoped, that this question was not then before the house. to what point, therefore, could these discussions lead? he was for going into a committee of the whole, and meeting the resolution face to face. mr. dana said that the observations of the gentleman from massachusetts would be correct, were it not for the objections made to the resolution. that question is, therefore, fairly before the house; and the real point is, whether the house will, or will not, adopt the resolution requesting information. to adopting this resolution, one objection is urged by the gentleman from virginia, and enforced by the gentleman from maryland. this resolution, say they, may irritate the court of spain, and this will be improper. one gentleman has said that the language of propriety is uniform and consistent. let gentlemen look then at the resolution long since offered by the gentleman from virginia, requesting papers in relation to a violation of compact on the part of spain in the late proceedings at new orleans. let me ask, is there any thing in this calculated to gratify the courtly delicacy of a castilian? here spain is explicitly charged with a violation of her engagement with us. look at the resolution that took its birth in secret committee, and which might be termed the offspring of the intellectual energies of the gentleman from virginia. it is willing to ascribe this breach of compact to the unauthorized misconduct of certain individuals, rather than to a want of good faith on the part of his catholic majesty. if this were not the style of direct complaint, it was, at least, harsh, and in no wise courtly. look now at the resolution proposed by my colleague. compare them, and if there is not a revolution in the force of language as well as in other things, say if the language of my colleague's resolution is not that of civility, moderation, and even flattery, compared with the language of the other two? [mr. dana having read mr. griswold's resolution proceeded.] what is there here that implicates the character of spain? if there is any fault in mentioning the cession, if that is calculated to irritate spain, the fault lies with the president; for he first mentioned it. this argument, then, must be abandoned. there is nothing in this resolution that can impede negotiations; it is not my intention that this house should take any measures to impede, but that we should take measures to give additional force to negotiation. if i understand what will give most efficacy to executive negotiations, it is when the world are assured that this house will support the president in all proper and necessary measures for vindicating our rights. but, say the gentlemen, is it possible that we can be for vindicating the rights of the citizens when we have withdrawn our confidence from the executive? it is true we could not agree with gentlemen in their terms when they avowed "a perfect confidence in the vigilance and wisdom of the executive." the gentleman from virginia represented this as the theory of the government. we could not agree with him. we voted for striking this out. it is unnecessary to mention our motives for this in detail. this might be to imitate. what! "relying with perfect confidence in the executive"--is this the language of the constitution, as it respects any man? the resolution does not limit the confidence reposed to any degree, but ascribes a perfection of wisdom and vigor, which ought not to be reposed in any being subject to the ordinary frailties of human nature. besides, there is an expression of confidence resulting from the constitutional powers of the executive, which may be correct. but it will be recollected that the powers of the executive are not competent to ulterior measures. he has only the power of negotiation; he has no other. though he may prevent an aggression by employing force, he cannot enforce compensation for injuries received. it was, therefore, improper to agree to a resolution that pledged ourselves to abstain from doing any thing. the allusion to the case with great britain was not correct. will it be said that less success attended the measures of our negotiation then, because the house manifested a disposition to adopt spirited measures? or, that there were in that case no measures adopted? measures were adopted. but here, not a single measure had been. mr. randolph said it was extremely painful to him to be obliged so often to explain what appeared to him almost self-evident. the journals have been quoted, sir, to show that i have cast an imputation on the spanish court more injurious than that contained in the resolution of the gentleman from connecticut. i am perfectly willing that the decision of the question before us should depend upon that fact. the resolution, sir, which i had the honor to submit to you, spoke of a fact notorious to the whole world, of a breach of compact, of a violation of treaty, on the part of spain, which could be neither denied nor justified. it contained an inquiry into this circumstance, and, information having been received respecting it, was followed by a declaration of our willingness to ascribe it to the unauthorized misconduct of their agents rather than to the court of spain. the resolution of the gentleman from connecticut implies a fact highly dishonorable to the spanish nation--that the government, and not subordinate, unauthorized persons, has secretly entered into stipulations repugnant to its engagements with us. put the case between two individuals; suppose a gentleman of this house to receive an injury from either of the gentlemen from connecticut. in an open and manly manner he speaks of this injury, and in undignified terms of resentment. he inquires into it; having found that it was the act of a subordinate agent, and, no proof being exhibited that it was at the instigation of the principal, he frankly says: there is a violation on your part of your engagements with me, but i am willing to ascribe it to the unauthorized misconduct of your agent. on the contrary, suppose him to insinuate strongly that his opponent has covertly taken steps to injure him by treacherously entering into engagements incompatible with those previously made with him. sir, that honor which would feel itself wounded by the first of these proceedings, while it was insensible to the other, is very little allied to the castilian. but, sir, it seems that this unfortunate resolution betrays so entire an ignorance of the distribution of the powers of our government as to clothe the executive with an authority not only not devolved upon it by the constitution, but which is the peculiar province of this and the other branch of the legislature. the gentleman (mr. dana) denies the power of the executive to redress injuries received from foreign nations. the resolution, however, speaks only of a disposition to redress those injuries. but let us examine into the fact. have i, indeed, so far mistaken, and, contrary to my own avowed principles, am so disposed to augment the executive powers at the expense of the other departments of the government? suppose, on the representations of the executive to the court of spain, that court, which is more than probable, should restore the rights of navigation and deposit, disavow the conduct of their officers in violating those rights, and moreover, punish them for it? would any person deny that, through the agency of the executive, constitutionally exercised, the injury was redressed? there were other criticisms of the gentleman which i well remember, and to which he seems willing to call the recollection of the house. they were chiefly of a verbal nature. the gentleman objected to the expression "vindicating the injuries," which he contended implied the justifying, and not the redressing, of them. i could only reply, that i had been in the habit of hearing that word used in the sense in which i applied it as well as in that contended for by the gentleman. that the meaning of terms in our copious and flexible language should not be settled by provincial acceptation; and that by the only authority then accessible to us (knowing the disposition of the gentleman to bow to authority) it was decided that the word "vindicate" extended as well to the avenging of an injury as to the assertion of a right. i am, however, willing to confess that i have never attended to the technical structure of language with a precision so minute as that of the gentleman from connecticut; and if the house are again to go to school to become acquainted with it, if again we are to be subjected to the lash of the pedagogue, no man shall have my vote for that high office so soon as the gentleman from connecticut. when the resolution which i submitted to you was under consideration, i did defend the expression contained in it, of confidence in the executive, on the theory of our government. i am still ready to defend it on the same principle. by the constitution of the united states, the executive is the representative of the united states to foreign nations. it is furnished with organs by which to receive their propositions, and to communicate our own. the constitution, therefore, presumes that to this department may be entirely confided our negotiations with foreign states. to this house is given the sole power to originate money bills, and the constitution supposes that a perfect reliance may be had upon it for executing this all-important trust. on the senate, in like manner, is devolved the right of trying impeachments, and perfect confidence is placed in the wisdom and justice of their decision. the same confidence is reposed in the executive with respect to exterior relations. without adverting, therefore, to the character of the individual, we had the same right to presume that the constituted authority would take the proper steps in relation to his department, that he has to presume that we will raise the necessary revenue and pass the proper laws. until, then, it could be shown that some specific act of the executive had rendered that department unworthy of our confidence, we might consistently express it: and, even if proof of such misconduct could be established, it would not alter the tenor of the constitution, however the individual might be affected by it. for your constitution, sir, is not of that precarious nature which depends on the fluctuating characters of particular men. mr. r. concluded by declaring his reluctance, then increased by indisposition, to be so frequently called upon the floor, but he felt himself in honor bound to defend a motion made by himself, and which had called forth such repeated animadversions from the other side of the house. mr. goddard.--the gentleman from virginia (mr. randolph) has complained so much of the objections to which his _secret_ resolution was exposed, that i feel myself called upon to sustain a part of that complaint which he has seen fit to place to the account of my colleague. the motion, sir, to strike out the word "vindicating," which gave the gentleman the trouble of producing his pocket dictionary, came from me. he attempted to show, by the authority of his dictionary, that the word is sometimes used to signify _revenge_. admitting it, i asked then, and i ask now, with what propriety it could be used, even in that sense, in the resolution referred to? we were then speaking of measures which had before that time been taken by the president, regarding the subject to which the resolution referred. were we to suppose that the president had already taken measures to _revenge_ the injuries of the united states? i had heard of no such intimation. besides, has he the power to do so, in the manner then suggested by the gentleman from virginia by taking possession of new orleans? i believe not, without the concurrence of congress. it was therefore absurd, in the highest degree, to use the expression in that resolution; and we had more than one reason for striking out that part of the resolution which contained it. but this, as well as every other word and letter of this favorite resolution, was pertinaciously adhered to. the gentleman who framed the resolution seemed determined to compel us to eulogize the president--to extort from us a little praise of _the man_--or reduce us to the necessity of voting against the principle of the resolution, which asserted our right to the free navigation of the mississippi. this part of the resolution could have been introduced for no other purpose. it also called upon us to pledge ourselves to wait the issue of such measures as the president might have taken, without any knowledge of the nature of those measures, if any had been taken. and this, the gentleman (mr. randolph) now tells us, we might well enough have done, on the ground of the _theory of our government_. i did not know, sir, that it belonged to the theory of government to eulogize the president on all occasions, or express a confidence we do not feel. nor does it make a part of the theory of our government, that the president, without the concurrence of congress, should avenge the injuries of the country. but, sir, we determined not to express a confidence we did not feel, or vote against the principle of a resolution which was agreeable to us; and the rules of the house, notwithstanding all the efforts to the contrary, protected us in carrying that determination into effect. we recorded our votes in favor of such parts of the resolution as we liked, and against that which we deemed exceptionable; and the final vote which was given upon the whole resolution was sufficiently explained by those upon its different parts. but, sir, because we did not vote that we had "perfect confidence" in the executive, are we now to be told that we are not entitled to the information called for by the resolution on your table? are those who do not express entire approbation of all the measures of the administration to be refused all information respecting the most important interests of the country? another objection is raised to agreeing to this resolution. gentlemen say it will offend foreign nations. what does the resolution call for? it calls for information of a _fact_ which we are told in the president's message exists. louisiana, says the president, has been ceded by spain to france. we ask for such documents as he may possess in evidence of that fact. we wish to know the terms and conditions upon which that province is to be delivered up. when this is asked, by the resolution on your table, the right is at the same time reserved to the president to withhold such parts of it (if any such there be) as, _in his opinion_, ought not to be communicated. and the passage of this resolution is to offend france or spain! for fear of _offending_ foreign nations we are not to ask or know what is our relative situation with such nations? if, sir, we hold this language, we may indeed avoid the _anger_ of foreign nations, but we shall merit their _contempt_. but when, in answer to the suggestion that we may offend spain, the gentleman from virginia is reminded of his resolution, which charges spain directly with a violation of treaty, he replies that this language is palliated by our saying that we are "willing to ascribe this violation to the unauthorized conduct of certain individuals rather than to the want of good faith on the part of his catholic majesty." but, in making out this apology, the gentleman has blended two resolutions together. the one to which my colleague referred passed early in the session. in that, spain was charged directly with a violation of treaty. nothing was then said about unauthorized conduct of individuals. this reluctance at charging spain with this violation of treaty was not expressed until a long time after, and is found in the resolution which passed in secret. indeed, this, as well as all the objections which have been offered to the passage of the resolution on your table, appear to me equally fallacious. mr. huger said, that having, on a former occasion, had an opportunity of delivering his sentiments in favor of the present resolution, "requesting the executive to direct the proper officer to lay before the house such official documents, as were in possession of the government, relative to the cession of louisiana to france," he felt no disposition to enter at this time into a further discussion of the merits of that resolution, nor should he have again troubled the house on the subject, but for the assertion repeated more than once by the gentleman from virginia, (mr. randolph,) that those gentlemen who thought and voted with himself in the secret committee, had recorded, on the journals of the house, their solemn determination (however sensibly they might feel the injuries inflicted on the rights and interests of these states) to refuse all co-operation in support of those rights and interests so long as the direction of the government should remain in the hands of the present chief magistrate. this imputation had already, it was true, been very properly repelled by his friend from connecticut, and it had been triumphantly shown from the journals themselves, with how little justice the insinuation had been made against those who agreed and voted with him on the different parts of the resolution lately adopted in the secret committee. the gentleman from virginia had, nevertheless, thought proper again to make the assertion; mr. h. must, therefore, beg leave again to meet it, and to declare that it was neither authorized by a fair construction of the different votes given on the occasion by yeas and nays, nor to be inferred from any thing which had fallen in debate either from himself or any of his political friends. the very contrary, continued mr. h., is in truth the fact; and had the resolution in question been debated with open doors, it would have been very evident to every one, that the utmost pains had been taken by the other side of the house to place us in this very predicament, and by availing themselves of a point of order, to oblige us by our votes, not only to declare an implicit and entire confidence in the present chief magistrate, but to tie up our hands and bind ourselves not to take a single step in this important business until the executive was graciously pleased to authorize us to do so. if the doors had been allowed, i say, to remain open during the debate, it would have been evident to every one how much pains were taken to oblige us to commit ourselves on these two points, or to submit to be presented to the world as unwilling to co-operate in any way in the support of the just rights of the nation, and be deprived of an opportunity of showing, as we were anxious to do, our approbation of, and concurrence in, other parts of the resolution; the last sentence in particular, which holds forth our unalterable determination to maintain, in every event, the boundaries and right of commerce and navigation through the mississippi, as established by existing treaties. fortunately, however, the point of order was determined in our favor, and we have had an opportunity to show, and did actually show, by our votes, in the most unequivocal manner, that we were, as well as our political opponents, decidedly in favor of every other part of the resolution, save only that which called on us so unnecessarily to declare ourselves the blind and passive tools of the executive. nay, more, he recollected to have declared himself, again and again, in the course of the debate, that, although he was not willing at the present moment unnecessarily to express an entire and implicit confidence in the political infallibility of the executive, yet he certainly had not the smallest hesitation in saying, that he was as ready as any gentleman on the other side, to devote his life and fortune, even under the auspices of the present chief magistrate, to the defence of our common country against any and every foreign aggression whatever. he was not, it was true, one of the warm and enthusiastic devotees of the present administration, and he must honestly acknowledge that he should greatly prefer seeing the reins of government, at this critical juncture, in the hands of a washington! he, nevertheless, recollected that the present chief magistrate was placed at the head of affairs by the constitutional voice of the majority of the american people. he acquiesced, therefore, in their decision, and hoped he might be permitted to avail himself of the advantage of having the doors now open, to repeat again, in the most unequivocal language, that he was as ready as any of the most devoted friends of the administration, to risk his life and his all, (even under its auspices,) in asserting the rights and vindicating the injuries of the united states. he was the more anxious to make a public and open avowal of his sentiments on this subject, because, although it might suit the party purposes for the moment to hold up one side of the house, as so forgetful of their duty, and so hurried away by their political zeal, as to pledge themselves in the face of the world, to give up the most important rights of the nation without a struggle, rather than co-operate with those now at the head of affairs in support of them, yet he thought it all-important that foreign nations at least should be convinced the fact was not so; and that whatever difference of opinion may exist amongst us with respect to our local politics, when called upon to meet and repel the encroachments of any foreign power, we would have but one sentiment on the subject. to bring about, indeed, a unanimous vote and present to the american people the agreeable and consoling spectacle of the national legislature acting with one mind and with mutual confidence in each other on this great national question, big with such important consequences, had been his sincere wish, as well as that, he was confident, of every member on his side of the house. they had, consequently, left no stone unturned to effect the desirable end: they had called upon and conjured the majority to waive for the moment all party questions; to meet them on such fair and honorable grounds as might enable them to act with perfect unanimity in support of such measures, as it might be found expedient to adopt. nor could gentlemen have forgotten the eloquent and conciliating speech of the member from connecticut, and the ardent desire he had evinced, in common with all his friends, to bury the hatchet and lay aside every other consideration but the public good. it was scarcely necessary, however, to remind the house of the manner in which these proffers of conciliation and the anxiety on our part to obtain a unanimous vote on this important occasion were received. it is in the memory of every one, that they were treated with the most sovereign contempt, hooted and spurned at, and the gentleman from virginia, (mr. randolph,) in particular, went so far as to declare, that he neither wanted nor wished any thing like unanimity to appear in support of the measures which might be adopted; nay, that unanimity, however attainable, was not desirable. mr. h. said he would make no comment on these sentiments and this conduct on the part of the majority; and as he did not rise for the purpose of entering into a further discussion of the main question, he should no longer encroach on the time or patience of the house, but leave them and the world to determine whether he or his political friends had, by their votes or conduct, in the course of the transaction alluded to, afforded any just ground for the imputation of the gentleman from virginia, whatever plausibility he had ingeniously endeavored to give it. the question was then taken, on the requisition of mr. griswold, by yeas and nays, and carried in the negative--yeas , nays , as follows: yeas.--john archer, john bacon, james a. bayard, phanuel bishop, john campbell, thomas claiborne, manasseh cutler, samuel w. dana, john davenport, john dennis, abiel foster, calvin goddard, roger griswold, william barry grove, joseph hemphill, archibald henderson, william h. hill, benjamin huger, samuel hunt, thomas lowndes, ebenezer matoon, lewis r. morris, elias perkins, thomas plater, nathan read, john rutledge, john c. smith, john stanley, john stratton, samuel tenney, samuel thatcher, thomas tillinghast, george b. upham, joseph b. varnum, killian k. van rensselaer, peleg wadsworth, lemuel williams, and henry woods. nays.--willis alston, theodorus bailey, richard brent, robert brown, william butler, matthew clay, john clopton, john condit, richard cutts, thomas t. davis, john dawson, william dickson, peter early, lucas elmendorph, ebenezer elmer, william eustis, edwin gray, andrew gregg, john a. hanna, daniel heister, joseph heister, william helms, william hoge, james holland, david holmes, george jackson, michael leib, david meriwether, samuel l. mitchill, thomas moore, anthony new, thomas newton, jr., joseph h. nicholson, john randolph, jr., john smilie, israel smith, john smith, (of new york,) josiah smith, samuel smith, henry southard, richard stanford, joseph stanton, jr., john stewart, john taliaferro, jr., david thomas, philip r. thompson, abram trigg, john trigg, philip van cortlandt, john p. van ness, isaac van horne, and thomas wynns. mr. s. smith said he had a communication to make, which, in his opinion, required secrecy; whereupon the galleries were cleared. after a short time they were opened; when the house resumed the consideration of mr. griswold's resolution which lay on the table. _ordered_, that the committee of the whole house, on the state of the union, to whom was referred, on the fifth instant, a motion respecting official information of the cession of louisiana to france, be discharged from the consideration thereof; and that the said motion do lie on the table. mr. bayard said he lamented much, that unavoidable occurrences had prevented his attending in his place when the resolution was under consideration upon the motion to go into a committee of the whole house. having no knowledge of the arguments then employed to induce the adoption of the resolution, he should abstain from many remarks which obviously presented themselves on the subject, lest he should fall into repetitions of what was familiar to the minds of the house from the observations of other gentlemen. he must, however, be allowed to state that it was a practice little known heretofore, but one which had alarmingly increased of late, to resist a call for information from any branch of the executive government. it cannot be on the ground of secrecy, required by the state of affairs, for we have been often told that a government like ours ought to have no secrets. though the present times have assumed the character of _economical_, yet an honorable member of great weight in the house, and whom he did not then observe in his place, had remarked at the last session, with great emphasis and effect, that no disposition to economy should ever induce him to economize information. a stronger case than the present could not exist. the house had been called on to act upon a question touching our foreign relations. on such subjects, it was among the chief duties of the executive to acquire information. it was for this purpose that ministers were sent abroad, and their communications were made to the cabinet, to which we had a right to look upon all occasions for information respecting the proceedings of foreign governments which implicated the national interest. it is stated in the presidential message, that louisiana is ceded by spain to france. this is an important fact. the statement in the message shows that the president has obtained information relative to the cession after the fact is disclosed, which is the extent of any indiscretion which can be committed on the subject; why conceal from us the circumstances? the naked fact did not furnish sufficient light to enable us to judge of the steps which it would be proper for us to pursue. though the country had been ceded, yet the possession remained with the spaniards. this created a presumption that it was not a simple, absolute cession. if the cession be conditional or qualified, or to take effect upon some future contingency, it is extremely material that the house should be informed of the existence of the circumstances. mr. b. repeated his regret that he was not present at the discussion of the subject which had taken place, as it was beyond his powers to imagine a ground upon which the information requested by the resolution could be denied. but after the resolution had been in effect negatived on the motion to go into a committee of the whole, and, as he understood, by a large majority, he should not have risen to trouble the house but for an occurrence which had taken place since the house had made their determination upon the resolution. an honorable member from maryland (mr. s. smith) has just laid upon our table a resolution calling upon the house to place two millions of dollars at the discretion of the executive. [the speaker here remarked to mr. bayard, that as the doors were no longer closed, it was not in order to refer to what had been done when the doors were closed.] mr. b. said he had no disposition to transgress the rules of the house; but it was an awkward situation, when, arguing in support of a measure, he was not at liberty to state the strongest reason in favor of it. he would not repeat what had escaped him; but alluding to what was in the knowledge of every member, he considered himself allowed to urge the probability that the house would be called upon for a grant of money. now, sir, can gentlemen expect that either we or the nation will in any case be satisfied to make a large grant of money, while no information is given of the grounds upon which the grant is required? when money is asked for, information ought never to be denied; and, for his part, he never would consent to give a cent, while information, which ought to be communicated, was withheld. mr. b. concluded by observing, that he hoped he might still flatter himself with the expectation, that what had recently occurred, would induce the house to vary from the determination they had made, and adopt the resolution. the question was taken, that the house do agree to the resolution of mr. griswold, and passed in the negative--yeas , nays . wednesday, january . _purchase of louisiana._ [the injunction of secrecy having been removed from the following proceedings, had in secret session, they are here inserted under the proper date.] _ordered_, that the committee of the whole house, to whom was yesterday committed a motion in the words following, to wit: "_resolved_, that a sum of two millions of dollars, in addition to the provision heretofore made, be appropriated to defray any expenses which may be incurred in relation to the intercourse between the united states and foreign nations, to be paid out of any money that may be in the treasury, not otherwise appropriated, and to be applied under the direction of the president of the united states, who, if necessary, is hereby authorized to borrow the whole or any part thereof; an account whereof, as soon as may be, shall be laid before congress:" be discharged from the consideration thereof, and that the motion be referred to mr. nicholson, mr. eustis, mr. bayard, mr. dickson, mr. lowndes, mr. thompson, and mr. gregg; that they do examine the matter thereof, and report the same, with their opinion thereupon, to the house. the committee to whom was referred a resolution proposing an appropriation of two millions of dollars, in addition to the sum usually appropriated for the purposes of intercourse between the united states and foreign nations, submit the following report: the object of this resolution is to enable the executive to commence, with more effect, a negotiation with the french and spanish governments relative to the purchase from them of the island of new orleans, and the provinces of east and west florida. this object is deemed highly important and has received the attentive consideration of the committee. the free and unmolested navigation of the river mississippi is a point to which the attention of the general government has been directed, ever since the peace of , by which our independence as a nation was finally acknowledged. the immense tract of country owned by the united states, which lies immediately on the mississippi, or communicates with it by means of large navigable rivers rising within our boundaries, renders its free navigation an object, not only of inestimable advantage, but of the very first necessity. the mississippi forms the western boundary of the united states, from its source to the st degree of north latitude, and empties itself into the gulf of mexico, about the th degree of north latitude. it furnishes the only outlet through which the produce of the indiana territory, of the states of ohio, kentucky, and tennessee, and of the western parts of pennsylvania and virginia, and a portion of the mississippi territory, can be transported to a foreign market, or to the ports of the atlantic states. from the st degree of north latitude, which is the southern boundary of the united states, to the mouth of the river, the territory on each side has heretofore been in possession of the spanish government; the province of louisiana lying to the west, and those of east florida, with the island of new orleans, to the east. although the united states have insisted on an uncontrollable right to pass up and down the river, from its source to the sea, yet this right, if admitted in its most ample latitude, will not secure to them the full advantages of navigation. the strength and rapidity of the current of the mississippi are known to render its ascent so extremely difficult, that few vessels of burden have attempted to go as far as our boundary. this circumstance obliges the citizens of the western country to carry their produce down the river in boats, from which it is put on board of ships capable of sustaining a sea voyage. it follows, therefore, that to enjoy the full benefits of navigation, some place should be fixed which sea vessels can approach without great inconvenience, where the american produce may be deposited until it is again shipped to be carried abroad. this great point was secured to us in the year , by the spanish government, who agreed, in the treaty of san lorenzo el real, that americans should have the right to deposit at new orleans. this right has been used from that time till a late period; but the conduct of the intendant at that place shows how liable the advantageous navigation of the river is to interruption, and strongly points out the impolicy of relying on a foreign nation for benefits, which our citizens have a right to expect should be secured to them by their own government it is hoped that the port of new orleans may again be opened before any very material injuries arise; but should this be the case, or if, as the treaty provides, a new place of deposit should be assigned, the late occurrence shows the uncertainty of its continuance. experience proves that the caprice or the interested views of a single officer may perpetually subject us to the alternative of submitting to injury, or of resorting to war. the late violation of our treaty with spain necessarily leads to the inquiry, how far the western country may be affected in other points, not connected with new orleans? the mississippi territory extends from the confines of georgia to the river mississippi, and from the st to the th degree of north latitude. it is estimated to contain more than fifty millions of acres, and, from its numerous advantages, must, one day or other, possess an immense population. the variety, richness, and abundance of its productions, hold out to settlers the strongest inducements to resort thither, and the united states may safely calculate on drawing a considerable revenue from the sale of lands in this, as well as in other quarters of the western country. the value of these, however, may be diminished or increased, and the sale impeded or advanced by the impression made on the public mind, by shutting the port of new orleans, and by eventual measures which may be adopted to guard against similar injuries. west florida is bounded on the north by the mississippi territory, from which it is separated by no natural boundary; on the east by the river appalachicola, which divides it from east florida; on the west by the river mississippi, and on the south by the gulf of mexico. the mississippi territory is intersected by many large and valuable rivers, which rise within its own boundaries and meander through it in a general direction, from north to south, but empty themselves into the gulf of mexico through the province of west florida. in fact, with the exception of that part of the territory which lies immediately on the mississippi, the whole must depend on the mobile and the appalachicola, with their numerous branches, and on some other rivers of inferior note, for the means of sending its produce to market, and of returning to itself such foreign supplies as the necessities or convenience of its inhabitants may require. in these rivers, too, the eastern parts of the state of tennessee are deeply interested, as some of the great branches of the mobile approach very near to some of those branches of the tennessee river, which lie above the great muscle shoals. even if it should prove difficult to connect them, yet the land carriage will be shorter, and the route to the sea more direct than the river tennessee furnishes. these rivers possess, likewise, an advantage which is denied to the mississippi. as their sources are not in the mountains, and their course is through a level country, their currents are gentle, and the tide flows considerably above our boundary. this circumstance, together with the depth of water, which many of them afford, renders them accessible to sea vessels, and ships of two hundred tons burden may ascend for several hundred miles into the heart of the mississippi territory. these rivers, however, which run almost exclusively within our own limits, and which it would seem as if nature had intended for our own benefit, we must be indebted to others for the beneficial use of, so long as the province of west florida shall continue in the possession of a foreign nation. if the province of west florida were of itself an independent empire, it would be the interest of its government to promote the freedom of trade, by laying open the mouths of the rivers to all nations; this having been the policy of those powers who possess the mouths of the rhine, the danube, the po, and the tagus, with some others. but the system of colonization which has always heretofore prevailed proves that the mother country is ever anxious to engross to itself the trade of its colonies, and affords us every reason to apprehend that spain will not readily admit us to pass through her territory to carry on a trade either with each other or with foreign nations. this right we may insist on, and perhaps it may be conceded to us; but it is possible that it may be denied. at all events it may prove the source of endless disagreement and perpetual hostility. in this respect east florida may not perhaps be so important, but its acquisition is nevertheless deemed desirable. from its junction with the state of georgia, at the river st. mary's, it stretches nearly four hundred miles into the sea, forming a large peninsula, and has some very fine harbors. the southern point, cape florida, is not more than one hundred miles distant from the havana, and the possession of it may be beneficial to us in relation to our trade with the west indies. it would likewise make our whole territory compact, would add considerably to our sea-coast, and by giving us the gulf of mexico for our southern boundary, would render us less liable to attack, in what is now deemed the most vulnerable part of the union. from the foregoing view of facts, it must be seen that the possession of new orleans and the floridas will not only be required for the convenience of the united states, but will be demanded by their most imperious necessities. the mississippi and its branches, with those of other rivers above referred to, drain an extent of country, not less, perhaps, than one half of our whole territory, containing at this time one-eighth of our population and progressing with a rapidity beyond the experience of any former time, or of any other nation. the floridas and new orleans command the only outlets to the sea, and our best interests require that we should get possession of them. this requisition, however, arises not from a disposition to increase our territory; for neither the floridas nor new orleans offer any other inducements than their mere geographical relation to the united states. but if we look forward to the free use of the mississippi, the mobile, the appalachicola, and the other rivers of the west, by ourselves and our posterity, new orleans and the floridas must become a part of the united states, either by purchase or by conquest. the great question, then, which presents itself is, shall we at this time lay the foundation for future peace by offering a fair and equivalent consideration; or shall we hereafter incur the hazards and the horrors of war? the government of the united states is differently organized from any other in the world. its object is the happiness of man: its policy and its interest, to pursue right by right means. war is the great scourge of the human race, and should never be resorted to but in cases of the most imperious necessity. a wise government will avoid it, when its views can be attained by peaceful measures. princes fight for glory, and the blood and treasure of their subjects is the price they pay. in all nations the people bear the burden of war, and in the united states the people rule. their representatives are the guardians of their rights, and it is the duty of those representatives to provide against any event which may, even at a distant day, involve the interests and the happiness of the nation. we may, indeed, have our rights restored to us by treaty, but there is a want of fortitude in applying temporary remedies to permanent evils; thereby imposing on our posterity a burden which we ourselves ought to bear. if the purchase can be made, we ought not to hesitate. if the attempt should fail, we shall have discharged an important duty. war may be the result, but the american nation, satisfied with our conduct, will be animated by one soul, and will unite all its energies in the contest. foreign powers will be convinced that it is not a war of aggrandizement on our part, and will feel no unreasonable jealousies towards us. we shall have proved that our object was justice; it will be seen that our propositions were fair: and it will be acknowledged that our cause is honorable. should alliances be necessary they may be advantageously formed. we shall have merited, and shall therefore possess, general confidence. our measures will stand justified, not only to ourselves and our country, but to the world. in another point of view, perhaps, it would be preferable to make the purchase, as it is believed that a smaller sum would be required for this subject, than would necessarily be expended, if we should attempt to take possession by force; the expenses of a war being, indeed, almost incalculable. the committee have no information before them, to ascertain the amount for which the purchase can be made, but it is hoped, that with the assistance of two millions of dollars in hand, this will not be unreasonable. a similar course was pursued for the purpose of settling our differences with the regency of algiers, by an appropriation of one million of dollars, prior to the commencement of the negotiation, and we have since experienced its beneficial effects. under these impressions, therefore, the committee recommend the adoption of the resolution referred to them in the following words, viz: _resolved_, that a sum of two millions of dollars in addition to the provision heretofore made, be appropriated to defray the expenses which may be incurred in relation to the intercourse between the united states and foreign nations; to be paid out of any money that may be in the treasury not otherwise appropriated, and to be applied under the direction of the president of the united states; who, if necessary is hereby authorized to borrow the same, or any part thereof, an account whereof, as soon as may be, shall be laid before congress.[ ] thursday, january . another member, to wit, william jones, from pennsylvania, appeared, and took his seat in the house. _franking privilege._ mr. randolph moved that the house resolve itself into a committee of the whole, on the amendments offered by the senate to the bill making appropriations for the military establishment for the year . the first amendment, applying an addition of two thousand dollars for the purchase of books, maps, and instruments for the use of the war department, was agreed to. on the second, adding $ , for the payment of postage on letters to and from the inspector, paymaster, &c., a lengthy debate ensued. it was opposed on another ground--as being the duty of the secretary of war to frank all letters going from the offices attached to the war department, and, therefore, an appropriation was unnecessary. in answer, it was observed, that the government must, and ought, in some way, to support the expense of transporting returns, orders, and letters, relating to the military service; and, if they would not make an appropriation, it was proposed to extend the privilege of franking to the paymaster and inspector, through whom most of the details for the army passed. that it was not the duty of the secretary to frank letters and packages going from other offices--it was making a clerk of him--obliging him to do that which neither the law nor the constitution contemplated as being attached to his office; that it would encroach upon the time which, must necessarily be devoted to more important concerns. besides, were he able and willing to perform the drudgery of that service, it was doubtful whether he had any legal or constitutional right to frank any packages, except those going immediately and directly from his own particular office, and that he might be liable to a penalty, though he should frank letters on public business, relating to the army and war department generally. the extension of the privilege of franking was opposed by the speaker, (mr. macon,) and others. they considered all franking as wrong, and liable to abuse--they would rather restrict than extend this privilege. in reply, it was said that, if confidence could not be placed in those officers, as to the privilege of franking, the imposition could not be prevented by referring their packets to the secretary of war, or by paying their account current with the postmasters. it was evident the government must pay those expenses; that it could make no difference as to the revenue, whether the postmaster general's department received and paid to the treasury the money which was drawn from the contingent fund of the war department, or from a special appropriation to defray the expenses of postage on military letters and packets, or whether they extended the privilege of franking to those officers from and through whom the military details must pass. in the former case, it was but taking from one pocket and putting in the other--in the latter, much trouble was saved; and, if the characters employed in those departments were worthy of a confidence which should entitle them to the places they hold, it could never be supposed that they would abuse the privilege of franking. on motion of mr. griswold, seconded by mr. eustis, the committee rose and the amendments from the senate were recommitted to the committee of ways and means. _amendment of the bankrupt act._ mr. randolph hoped the act would not be amended, but repealed. when it passed, he was one of those who entered his protest against it. he considered it in the nature of an _ex post facto_ law--an allurement to fraud--tending to corrupt the morals of the community--to change the nature of contracts--to discharge men, not only for their obligations and their solemn promises, but to violate their oaths. and, because congress had a right to enact such a law, would gentlemen say it was for the benefit of trade? its operations had been the reverse. he had been waiting, ever since its establishment, for the merchants themselves to come forward and urge the repeal. a portion of them had petitioned for amendments, which, in fact, amounted to a request for a repeal. mr. s. smith thought any arguments on the merits of the question were premature. it was a subject of too much importance to be hurried in that manner. he hoped it would be recommitted. mr. nicholson.--many gentlemen appeared to wish a repeal, because there were some injurious provisions in the law; others wished it might be amended, believing it was capable of such alterations as would remove their objections. he thought it in some respects defective, and in others beneficial. if the evils to which it was subjected could be remedied, he should be for retaining, if not, for repealing the law. mr. smilie.--considering the situation of the united states, he thought there never should have been a bankrupt law; but he doubted whether it would be expedient to repeal it at this time, but let it expire of itself. he believed much mischief had been produced by it, and if it was repealed now, he apprehended much more would ensue. its natural life was but five years, and he thought it had better exist for that period than be repealed. he was for recommitment. mr. bayard agreed with the gentleman from maryland, (mr. nicholson,) and thought the committee should have inquired what amendments were expedient. he was also forcibly impressed with the remarks of the gentleman from pennsylvania, (mr. smilie,) that it was better to suffer the law to expire of itself than repeal it now. he did not think that the house were prepared to go into a discussion. the argument of the gentleman from virginia, (mr. randolph,) that the bankrupt law was _ex post facto_, would not apply; but an act to repeal would in reality be an _ex post facto_ law. many merchants had entered into contracts, having an eye to the bankrupt law; many had embarked in perilous enterprises, knowing, that if they had made unfortunate calculations, that by a surrender of their effects they might again engage in commercial pursuits. and though a man might be discharged from his contracts, the sense of moral obligation was not impaired--in _foro conscientiæ_ he was still answerable. he would not deny that frauds were committed, but for this should the honest debtor be eternally fettered with his debts? should he, from unavoidable accidents, be cast into prison, and his family reduced to misery and distress? he was sure that the gentleman would revolt at the idea. were the bankrupt law repealed, they must substitute the insolvent laws of the different states. did not the insolvent laws of the southern states hold out the same allurements to fraud as the general bankrupt law? by a repeal, they would increase the evils, and destroy the benefits of the general system. we were, said mr. b., a great commercial republic; the connection between merchants of the different states was increasing; therefore, the merchant of georgia and the merchant of new hampshire should be subjected to general regulations. now, the merchant of pennsylvania trusting the merchant of virginia knew that his whole estate, real and personal, was liable for the payment of his debts; whereas, by the insolvent laws of that state, (virginia,) the former might give an extensive credit; the latter might vest it all in land, which was untangible for the payment of his demand. the bankrupt act was a commercial law, extending equal benefits throughout the union. if it was suffered to go back to the select committee, they would be able to give a clearer view of its advantages and defects. it was a subject of incalculable importance, both as it respected the debtor and creditor, and he hoped it would meet a candid and deliberate investigation. mr. randolph said that the affairs of the world had been found to suffer more from being put in the hands of those who were superior to the management of them, than from those who were inadequate to the execution of those objects intrusted to them. it had been allowed a sound rule of construction, that all general powers must be confined to particular exceptions. the constitution gave congress the right of making a bankrupt law, but it did not give the power of impairing contracts. he would exonerate the person, but never the property. it was the case in virginia, when a man had surrendered all his property, his person was liberated, but his property never. and though we were a commercial republic, was it not necessary to take care of the agricultural interest? how did the bankrupt law operate upon the planter? he knew by experience that it had been in many instances ruinous; that many planters had been _choused_ out of their property by the operations of this very law. he had known from experience that many men had been buoyed up and supported by their friends till those friends were made good, and then suffered to fail, to the great injury of the former. mr. bacon was in favor of a reference to a committee of the whole house. mr. s. smith said, gentlemen seemed to consider the bankrupt law as made entirely for the benefit of the debtor. that was an erroneous opinion. it was made also for the creditor: as such he advocated it. it enabled the creditor to secure his property, if he found the debtor was disposed to be fraudulent: he could apply for a commission of bankruptcy, and make the debtor account for the property in his possession. besides, it reduced the creditors to an equality--a debtor could not secure his friends, and leave the rest of his creditors without a dollar. an instance of that kind had lately come within his knowledge. to the agricultural interest it held out still greater advantages. the farmer who brought his produce to market could always get _cash_, if he would sell for _cash_; if he chose to sell on a credit, he received a higher price in proportion; that increase of price was his insurance for selling on credit. he was for examining the subject, and endeavoring to remedy defects, rather than repealing. mr. holland moved that it be referred to a committee of the whole house. carried. friday, january . _monument to gen. gates._ mr. van ness moved the following resolution: _resolved_, that a monument be erected in commemoration of the patriotism, valor, and good conduct of major general horatio gates, who, in the late revolutionary war, commanded the american forces that captured general burgoyne and the british army under his command, at saratoga, in the state of new york. _ordered_, that the said motion be referred to the committee to whom was committed, on the tenth instant, the bill sent from the senate, entitled "an act to carry into effect several resolutions of congress for erecting monuments to the memories of the late generals wooster, herkimer, davidson, and scriven." monday, january . two other members, to wit: from virginia samuel j. cabell, and from north carolina robert williams, appeared, and took their seats in the house. _emancipated slaves from french west indies._ a memorial of sundry inhabitants of the town of wilmington, in the state of north carolina, was presented to the house and read, stating that a certain number of negroes or mulattoes, to whom emancipation has been granted by the executive of the french government in the island of guadaloupe, had been recently landed at the said town of wilmington; that, in the opinion of the memorialists, much danger to the peace and safety of the people of the southern states of the union in particular, is justly to be apprehended from the admission of persons of that description into the united states, from the west india islands; and praying that congress will be pleased to take the premises into consideration, and adopt such effectual measures for prevention thereof, as they in their wisdom may deem proper. _ordered_, that the said memorial be referred to mr. hill, mr. early, mr. huger, mr. randolph, and mr. campbell, to report their opinion thereupon to the house. _case of john p. van ness._ mr. davis called up the report of the committee of elections on the case of john p. van ness. the house went into committee of the whole on the report, as follows: "that, from the free concessions and agreement of the said member, it appears to your committee that he has accepted and exercised the office of a major of the militia, under the authority of the united states, within the territory of columbia; and that a paragraph in the sixth section of the first article of the constitution, which expressly provides, that 'no person holding any office under the united states, shall be a member of either house during his continuance in office,' does, in the opinion of your committee, render the acceptance and exercise of the office aforesaid incompatible with the holding, at the same time, of a seat in the house. "your committee, therefore, ask leave to submit to the house the following resolution, to wit: "_resolved_, that john. p. van ness, one of the members of this house, having accepted and exercised the office of major of militia, under the authority of the united states, within the territory of columbia, has thereby forfeited his right to a seat as a member of this house." mr. van ness said he would make a remark or two that would, perhaps, remove any impressions of indelicacy on his part in retaining his seat under the circumstances in which he was placed. he considered himself as standing on that floor, not as a private individual, but as a representative of new york; and as holding a trust which he was not authorized to abandon before a constitutional decision should be made. his constituents had placed him there as the guardian of their rights; and that trust he could not desert without a constitutional decision being made. if that decision should be adverse to his retaining his seat, in retiring from the house he should feel no regret but at leaving his constituents unrepresented during the remainder of the session, at not having discharged all the business assigned him by the chair, and at ceasing to associate with gentlemen whom, for the most part, he respected. in a pecuniary view, the relinquishing his seat could not in the least affect him; nor should he consider it disreputable to leave a body without any imputation of dishonor or impropriety. the reasons he should offer to the committee for retaining his seat, were few and simple. he thought the fair, liberal, and sound construction of the constitution did not affect his case; that the incapacitating provision only applied to civil offices. the constitution was only a digest of the most approved principles of the constitutions of the several states, in which the spirit of those constitutions were combined. not one of those constitutions excluded from office those who had accepted military appointments, except in the regular service. he, therefore, felt a full conviction that it was never the intention of the framers of the constitution of the united states to exclude militia officers from holding a seat in congress. and however important it might be to adhere to the letter of the constitution, yet, when the spirit of it was so clear as it appeared to him, it ought to have weight in the decision of the question before the committee, which might affect objects of great importance. the right of every portion of the union to a representation in that house was very important, and ought to be respected in all cases which may either directly or indirectly affect it. gentlemen, therefore, ought to reflect before they deprive a part of the union of this important right. had he supposed that the acceptance of an office in the militia would have interfered with his seat in that house, he would never have accepted it. he had never entertained a doubt on this point until broached in the house. since then, he had heard various opinions. by what he had heard, his own opinion was not changed, as he believed that a true construction of the constitution would exclude his case. should, however, a decision against his holding his seat be made, he should retire without any other regret than that which he had expressed. he had not risen to argue the case as an advocate, but merely to assign the grounds on which he had acted. the question was then taken on the report of the committee of elections, which was agreed to without a division. the committee rose, and the house immediately took up their report. mr. randolph observed that, on a precedent so important as was about to be established by the vote of the house, it was unnecessary to say a word. he wished, however, that the disposition of the house to exclude, by a unanimous vote, even the shadow of executive influence, should be recorded on their journals; for which purpose he called the yeas and nays; which were taken, and were unanimously in favor of the resolution. monday, january . a new member, to wit, richard winn, returned to serve in this house as a member from south carolina, in the room of thomas sumter, appointed a senator of the united states, appeared, produced his credentials, and took his seat in the house. _ohio territorial delegate unseated._ on a motion made and seconded that the house do come to the following resolution: _resolved_, that, inasmuch as the late territory of the united states north-west of the river ohio have, by virtue of an act of congress passed on the first day of may, one thousand eight hundred and two, formed a constitution and state government, and have thereby, and by virtue of an act of congress aforesaid, become a separate and independent state, by the name of "ohio," that paul fearing, a member of this house, who was elected by the late territorial government of the territory north-west of the river ohio, is no longer entitled to a seat in this house: _ordered_, that the said motion be referred to the committee of elections: that they do examine the matter thereof, and report the same, with their opinion thereupon, to the house. _french spoliations._ mr. mitchill rose to address the house on a subject of a commercial nature. he alluded to the depredations committed upon the commerce of the united states, by french armed vessels, during the late war in europe. the gentlemen of the house would, he hoped, turn their attention, for a few minutes, to the numerous memorials received from our merchants during the last session, praying compensation for those losses. these papers were numerous and respectful, and came from a most valuable portion of our fellow-citizens. their grievances had not hitherto been redressed, nor even inquired into with the minuteness which it appeared to him to deserve. it was true a committee, numerous and intelligent, had been appointed during the last session, to examine the matter of these applications. a report had been made to the house. this report was full of information concerning the political and commercial connection between the united states and france. it comprised a concise and correct history of what had been done on both sides, since the mutual misunderstandings arose. it was a valuable document, as far as it went; but it did not conclude with any recommendation of a mode of relief, or even of investigation. it stopped short with the historical narrative, without proposing even a mode of further inquiry. during the present session, nothing further had been done or attempted. early after the congress assembled, he had himself given notice of an intention to revive the subject. it was confessedly of magnitude enough to merit investigation. this notice, he remembered, was given previous to the receipt of the message from the executive. but the multitude of public business that had grown out of that communication, added to other subjects, had so completely occupied his mind, that he had hitherto suffered it to pass on without bestowing on it the consideration which he owned that it deserved. he was now ready to make amends for this inadvertent or necessary, certainly not intentional, delay. he had heard, with satisfaction, the call of the gentleman from south carolina (mr. lowndes) for his (mr. mitchill's) promised motion. he acknowledged the hint of that gentleman to be seasonable, and felt himself obliged to him for acting the part of a good prompter. to show that gentleman that he had profited by the suggestion made on friday last, he had now risen with an intention to lay a resolve upon the table. the object of the resolve was to cause an inquiry to be entered upon, by a special committee of the house, as to what amount of property, or its value in current money, had been taken from the americans during the late war by the cruisers of france. the committee could devise some mode of ascertaining the magnitude of the sufferings complained of. this he considered as the first step that ought to be taken, towards the procuring of redress for the petitioners. and, until this was taken, he believed nothing was likely to be done. another object of the resolve he was about to offer, was to instruct the same committee to inquire into the different classes of captures and claims. he did not suppose that all the petitioners were entitled to compensation. some of them, he knew, were not; but it was equally clear that some of them were. this complicated mass of applications could be examined by a committee, who could draw some distinctions that would be useful. they could tell, for instance, that one sort were lawful captures for and on account of contraband, others for want of a _rôle d'équipage_, others were taken wrongfully, without any cause whatever, and the like. some judgment might be formed in this way of the probable amount that might be contemplated as bona fide claims. he suspected this amount would be but an inconsiderable part of the gross amount of captures. but whether it was large or small, he hoped an examination would be attempted; and, for that purpose, he moved the following resolution: _resolved_, that a committee be appointed to inquire by what means the value or amount of property taken from citizens of the united states by the french, during the late war in europe, can be best ascertained, and the several sorts of captures distinguished and classed, and report their opinion thereon to this house, to the end that indemnification may be made. mr. mitchill then said, that he did not press an instant decision upon it; but wished it to lie a day or two on the table for consideration. thursday, january . _united states judges._ the several petitions of william tilghman, oliver wolcott, richard bassett, charles magill, samuel hitchcock, benjamin bourne, egbert benson, philip b. key, william griffith, jeremiah smith, and george k. taylor, were presented to the house and read, respectively representing, that, by an act of congress, passed on the thirteenth day of february, one thousand eight hundred and one, entitled "an act for the more convenient organization of the courts of the united states," certain judicial offices were created, and courts established, called circuit courts of the united states: that, in virtue of appointments made under the constitution of the united states, the petitioners became vested with the offices so created, and received commissions, authorizing them to hold the same, with the emoluments thereunto appertaining, during their good behavior: that, during the last session, an act of congress passed, by which the above-mentioned law was declared to be repealed; since which no law has been made for assigning to the petitioners the execution of any judicial function, nor has any provision been made for the payment of their stipulated compensations: that, under these circumstances, and finding it expressly declared in the constitution of the united states that "the judges both of the supreme and inferior courts shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office," that petitioners are compelled to represent it as their opinion, that the rights secured to them by the constitution, as members of the judicial department, have been impaired: that, "with this sincere conviction, and influenced by a sense of public duty, they most respectfully request of congress to review the existing laws, which respect the offices in question, and to define the duties to be performed by the petitioners, by such provisions as shall be consistent with the constitution, and the convenient administration of justice:" that "the right of the petitioners to their compensations, they sincerely believe to be secured by the constitution, notwithstanding any modification of the judicial department, which, in the opinion of congress, public convenience may recommend. this right, however, involving a personal interest, will cheerfully be submitted to judicial examination and decision, in such manner as the wisdom and impartiality of congress may prescribe: that judges should not be deprived of their offices or compensations, without misbehavior, appears, to the petitioners, to be among the first and best established principles of the american constitutions; and, in the various reforms they have undergone, it has been preserved and guarded with increased solicitude: that, on this basis, the constitution of the united states has laid the foundation of the judicial department, and expressed its meaning in terms equally plain and peremptory:" that, "this being the deliberate and solemn opinion of the petitioners, the duty of their stations requires that they should express it to the legislative body. they regret the necessity which compels them to make the representation; and they confide, that it will be attributed to a conviction that they ought not, voluntarily, to surrender rights and authorities intrusted to their protection, not for their personal advantage, but for the benefit of the community." mr. griswold moved a reference of the foregoing memorial to a select committee. mr. gregg observed that, according to the usual mode of transacting business, it ought to go to the committee of claims. he, therefore, made that motion. mr. randolph did not think a select committee, or the committee of claims, a proper committee to whom to refer this memorial. what is its nature? does it embrace any point of fact on which a committee is to make inquiry? no. it is a broad constitutional question. he was, therefore, in favor of having it examined, where it must eventually be settled, in the house. if, therefore, the memorial had any reference, it ought to be referred to a committee of the whole house; to which effect he made a motion. mr. bacon hoped this last motion would not obtain. he did not know what there was in this petition to distinguish it from any other petition from any citizens of the united states. it was suggested that it involved a great constitutional question. he did not know that this was the case. any thing might be made a constitutional question. but he thought this question had been already determined by the whole legislature on the most mature deliberation. he saw nothing to distinguish this petition from other petitions. he would not say that it would be doing it too much honor, but it would be making too wide a difference between similar applications to adopt this course. he was, therefore, for pursuing the common course. mr. griswold had no objection to a reference of the memorial to a committee of the whole. perhaps that would be the better mode. it was true, as the gentleman from virginia had stated, that a very important constitutional question may arise on this memorial. nor did he know, as represented by the gentleman from massachusetts, (mr. bacon,) that all the constitutional questions involved in the subject had been settled by the decision of the last session. he had understood the gentleman himself, in his speech, during the last session, to have said that the question of compensation was a very different question from that then under discussion. he was not absolutely certain that that gentleman expressed such an opinion, but he was certain that some gentlemen of the majority did. as the memorial was couched in terms of great respect, he trusted there would be no objection on the part of the house to give it a proper attention. mr. randolph would concisely answer the gentleman from massachusetts. does this question involve an inquiry either into matter of expediency or of fact? with respect to fact, they were all agreed. the judges make the question turn on a construction given to the constitution; it was, therefore, indubitably a constitutional question, on which a committee could not decide. the house, then, must decide. it appeared to him to be the plainest case on earth. no doubt constitutional questions may arise on many points. he hoped, therefore, the house would itself decide it. for his part, he considered the decision as already made. he hoped the memorial would be taken up that day. mr. smilie was against referring the memorial to a committee of the whole. if the subject had not been already maturely considered and discussed at the greatest length, he should be in favor of such a reference. but it had been most fully discussed. if they meant to sit there to the neglect of the important business, they ought to go into committee of the whole; but if they meant to do the public business, they ought not. gentlemen should recollect the time spent in this discussion the last session. mr. dana thought the gentleman from pennsylvania did not calculate correctly. the same object, as to debate, would be attained in the house as in a committee of the whole. for he would recollect, that notwithstanding the length of the debate of the last session, and though the house were in committee, no gentleman had spoken more than once; and, according to the rules of the house, every member had a right to speak twice. mr. dana said that he agreed with the gentleman from virginia in the ideas he had expressed. the question was then taken on mr. randolph's motion to refer the memorial to a committee of the whole house, and carried--ayes . the speaker inquired for what day it should be made the order. mr. randolph said, to-day. mr. griswold, to-morrow. the question was taken on mr. griswold's motion, and lost--ayes , noes . mr. huger moved that it should be the order for monday. it must be evident, that the members had not yet sufficiently attended to the subject to be prepared for a decision. it was a very different question from that decided the last session. it certainly required some little time to enable gentlemen to revolve it in their minds. it was not usual to force decisions in that way. if it was the object of gentlemen merely to vote it out, a majority must do as they please; but if they were disposed to pay it ordinary respect, they certainly could not urge so precipitate a discussion. mr. randolph asked if it were in order, after the question had been taken, to name another day. he said he would not have urged an immediate consideration of the memorial, but for the conviction that the subject, in all its bearings, had undergone the maturest investigation, not only of every member on that floor, but of every thinking man in the united states. the speaker decided that the moving another day was not in order. the question on going into a committee of the whole this day, was then carried without a division. whereupon, mr. randolph moved that the house should go into committee immediately. the speaker said the unfinished business of yesterday would be the first acted upon unless postponed. mr. randolph moved the postponement of the unfinished business till to-morrow. carried. the house then resolved itself into a committee of the whole on the memorial--mr. dawson in the chair. the memorial of william tilghman was read; which was accompanied by ten other _verbatim_ memorials, signed by oliver wolcott, jeremiah smith, richard bassett, philip b. key, george k. taylor, charles magill, samuel hitchcock, benjamin bourne, egbert benson, and william griffiths. mr. griswold said, he did not think it proper to enter into an extensive discussion of the memorial. the haste with which the consideration of it was urged, appeared to him indicative of a disposition to reject it altogether. under such circumstances discussion would be useless. at the same time, he would remark, that it involved a question very different from that decided at the last session. it had, then, been decided that the legislature had the constitutional right to deprive the judges of all judicial power; but the question never was settled, that, notwithstanding the judges should be deprived of all their judicial powers, they were not entitled to the compensation guaranteed by the constitution. this involved a distinct point, which ought not to be hastily acted upon. the judges had never been heard before congress on this question. they had a right by the constitution to be heard, and to be heard by counsel, he presumed, if they desired it. he had thought the house would have given time for them to be heard. but they had determined to proceed immediately. he should, therefore, be content with moving two resolutions. mr. griswold here read his resolutions as follows: _resolved_, that provision ought to be made by law to define the powers to be exercised by the judges of the circuit courts of the united states, who were appointed under an act, entitled "an act to provide for the more convenient organization of the courts of the united states." _resolved_, that provision ought to be made by law for submitting to judicial decision the right of the judges of the circuit court to their compensations. mr. randolph said, the provision desired by the gentleman from connecticut already exists. the legislature has defined the powers of the late circuit judges, and has decided that they shall not execute any powers. those powers are transferred to other courts. unless the house had changed their opinion, it was not necessary to go into any discussion on this point. the readiest and fairest course for gentlemen would be to propose to repeal the law of the last session, and restore the judges. the question was then taken on the first resolution, and lost--ayes , noes . the chairman then read the second resolution, as follows: _resolved_, that provision ought to be made by law for submitting to judicial decision the right of the judges of the circuit court to their compensations. mr. randolph said he was not ready for the question. he had one or two remarks to offer, which had suggested themselves during the reading of the resolution. it had been repeatedly decided that the united states would not permit themselves to be brought into their own courts. wherefore grant to a particular class of persons, in a single case, that which had ever been refused to the war-worn soldier of the revolution; especially when it should be recollected that this case, involving the interests of judges, as a _caste_, could not be decided by any judicial tribunal free from bias? a doctrine is advanced new to this house, which i have been told originated with an eminent character on the bench of the united states; i did not hear the gentleman from connecticut distinctly, but i understand him as subscribing to it; that congress may, constitutionally, deprive a judge of all authority, and transfer to another his powers and duties, but that the office nevertheless remains, and the judge, of course, entitled to his compensation. the constitution says that "the judges shall hold their offices during good behavior, and shall, for their services, receive a compensation." without entering into a question which has already been so fully discussed, he would barely remark, that if the position just advanced be correct, the words "compensation" and "office," which the constitution supposes, and every one believes, to have distinct and different meanings, must be convertible terms. for when the powers and duties are taken away, what, let me ask, is left but a salary? the word office must be rendered by the word salary. mr. dana.--the question of compensation to the judges involved considerations very distinct from those ordinarily decided upon in that house. most of the individual cases brought here were made in pursuance of some particular law, and did not call in question the authority of congress. if the case of the judges were to be referred to any tribunal, the right to refer was founded on the principle of controlling the decisions of the legislature in case those decisions should appear to the tribunal to be unconstitutional. it was, therefore, in this view not proper to refer the question to a tribunal dependent on the body to be controlled. this was the only course that would probably be deemed impartial by all the parties concerned. mr. bacon said the true question was on the constitutionality of the repealing law. one congress had passed a law constituting certain courts, which at the last session had been repealed. now of what do courts consist? of judges, who are officers of the court. the question is, whether by abolishing the courts, these officers are abolished. he supposed they were. he considered the terms as synonymous. now the question is whether, if the offices are abolished, those who filled them before they were abolished are entitled to salaries? that is the only question that remains undetermined. what does the constitution say? admitting the offices abolished, it says: "the judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office." does it not follow that if they continue in office they are entitled to a salary for the services they perform. if they do not continue in office they are entitled to nothing, and the constitution has no reference to them. this is the true question. mr. smilie would ask whether the supreme court in such a case as this could be denominated an impartial tribunal? he asked if they had not seen the time when, during the disputes between the clergy and laity, no wise man, not of the clerical order, would have trusted himself in the hands of the clergy? the same remark applied to the military, and also, with equal force, to the judges of the supreme court. he really, however, thought that the judges would not receive the salaries, even if they were offered to them, as it would be contrary to every idea of patriotism. he, therefore, considered the application as a mere matter of form. mr. nicholson.--the resolution contemplated giving the power to try the right of the judges to their claims; but the great object in reality was to authorize the judges of the supreme court to decide upon the constitutionality of the repealing act. let this object, then, be avowed; let it be so declared openly, and not introduced in this incidental manner. from the remarks made last year by gentlemen on the other side of the house, it was a little surprising that this application should be made, for it was then strenuously contended that the supreme court had the right to decide upon the constitutionality of all laws. why, then, ask for it? if they have this right we need not confer it; if they have it not, we cannot give it them. if the petitioning judges can bring their case before the supreme court, let them do so; my consent shall never authorize it. if the supreme court shall arrogate this power to themselves, and declare our law to be unconstitutional, it will then behoove us to act. our duty is defined. mr. eustis said when the office of judge was abolished all his duties ceased. the salary allowed was a compensation for services. now when there were no services to be performed, what salary could there be allowed, or what retribution demanded? on what did this claim rest? on the opinion of the judges. but by the decision of the last winter their offices were abolished; it followed, therefore, of consequence, that their salaries ceased too. this was a plain and simple question. he considered the memorial as the protest of the judges against this decision. as such, he was willing that it should rest on the files of the house, and instead of being offended at this treatment the judges ought to be thankful. mr. dana said the ideas of the gentleman from massachusetts were in one respect correct. the memorial of the judges was a protest against the law passed by congress. it was proper they should make it, so far as they confined themselves to language not indecorous or disrespectful. he would admit likewise that the question of powers decided the question of salary; others however entertained a different opinion. why object then, in a case where there was a difference of opinion, to refer the decision to an impartial tribunal? the only question is whether in a contest for power, you, the legislature, will claim the exclusive exercise of power, and whether, even if you shall exceed the constitutional limits, you will assert the entire right of saying so, or whether you will refer it to a tribunal which shall be an umpire between those who hold different opinions? mr. alston said the resolution required amendment. as it now stood, it would appear that all the late judges of the circuit court claimed a compensation for services not rendered. he believed this was not the case. there were some of those judges who had made no such request. he, therefore, moved to insert the name of those who had presented memorials; also to insert the word "late" before the word "judges." carried without a division. the resolution as amended stood thus: _resolved_, that provision ought to be made by law for submitting to judicial decision the right of william tilghman, oliver wolcott, jeremiah smith, richard bassett, philip b. key, george k. taylor, charles magill, samuel hitchcock, benjamin bourne, egbert benson, and william griffiths, late judges of the circuit court appointed under an act entitled "an act to provide for the more convenient organization of the courts of the united states passed on the thirteenth day of february, ;" which said act was repealed at the last session of congress, to their compensations. on which the question being put, it was lost--ayes noes . mr. varnum observed that the memorial contained two principles, both of which had been negatived. to draw the attention to a final decision he would move another resolution, to wit: _resolved_, that the prayer of the petition of william tilghman and others, (naming them,) late judges of the circuit courts of the united states, ought not to be granted, and that the petitioners have leave to withdraw their petitions. mr. t. morris moved that the committee should rise and report progress, that the petition might be printed. negatived without a division. the resolution was then carried without a division, when the committee rose and reported it. the house immediately took it into consideration; when mr. randolph moved to strike out the words, "late judges of the circuit courts of the united states." mr. griswold said he presumed it was not the object to expunge all evidence of these gentlemen being judges, or late judges of the circuit courts of the united states, and yet that would appear to be the effect of the motion. he must, therefore, call for the yeas and nays, which would make that fact be recorded on the journals. mr. randolph said he had made the motion that the resolution might conform to the prayer of the petition. had the memorialists called themselves late judges, he should have had no objection to their being so designated in the resolution. his wish was to style them in the resolution as they had styled themselves. mr. griswold said, though they had not expressly styled themselves circuit judges, yet they had stated that they had been appointed circuit judges under a law of the united states. they had therefore virtually so styled themselves. a few words were added by mr. eustis against it, and by messrs. randolph and nicholson in favor of striking out the words, when the question was taken by yeas and nays and carried--yeas , nays . and then the main question being taken, that the house do agree to the resolution reported from the committee of the whole house, amended to read as follows: _resolved_, that the prayer of the petitions of william tilghman, oliver wolcott, richard bassett, charles magill, samuel hitchcock, benjamin bourne, egbert benson, philip b. key, william griffith, jeremiah smith and george k. taylor, ought not to be granted; and that the petitioners have leave to withdraw their petitions. it was resolved in the affirmative, yeas , nays , as follows: yeas.--willis alston, john archer, john bacon, phanuel bishop, walter bowie, richard brent, robert brown, william butler, samuel j. cabell, thomas claiborne, matthew clay, john clopton, john condit, richard cutts, thomas t. davis, john dawson, william dickson, peter early, lucas elmendorph, ebenezer elmer, william eustis, edwin gray, andrew gregg, john a. hanna, daniel heister, joseph heister, william helms, william hoge, james holland, david holmes, george jackson, michael leib, david meriwether, samuel l. mitchill, thomas moore, james mott, anthony new, thomas newton, jun., joseph h. nicholson, john randolph, jr., john smilie, israel smith, john smith, (of new york,) john smith, (of virginia,) josiah smith, samuel smith, henry southard, richard stanford, joseph stanton, john stewart, john taliaferro, jr., david thomas, philip r. thompson, abram trigg, john trigg, philip van cortlandt, joseph b. varnum, isaac van horne, robert williams, richard winn, and thomas wynns. nays.--thomas boude, john campbell, manasseh cutler, samuel w. dana, john davenport, john dennis, abiel foster, calvin goddard, roger griswold, william barry grove, seth hastings, joseph hemphill, archibald henderson, william h. hill, benjamin huger, samuel hunt, thomas lowndes, ebenezer mattoon, lewis r. morris, thomas morris, elias perkins, thomas plater, nathan read, john rutledge, william shepard, john cotton smith, john stanley, john stratton, benjamin tallmadge, samuel tenney, samuel thatcher, thomas tillinghast, george b. upham, killian k. van rensselaer, peleg wadsworth, lemuel williams, and henry woods. friday, january . _presents to a minister's wife._ mr. speaker laid before the house a letter from col. humphreys, late minister at the court of madrid, stating that, when he was about to leave that court, the minister of state urged his acceptance of the customary present from his majesty. col. humphreys informed him that he could not, consistently with the constitution of his government, accept the present. the minister continued to press the acceptance, and urged that as he was no longer an officer of the united states, there could be no impropriety in his receiving it. col. h. replied that, though he was then out of office, there would still, in his opinion, be an indelicacy in the acceptance, and that if he should receive the present designed for him, he should consider it as his duty to deliver it into the hands of the president of the united states, to be disposed of at the pleasure of the government. under these circumstances he left the court of madrid; and upon his arrival in the united states, he found a casket of valuable female ornaments addressed to mrs. humphreys, which, though unaccompanied by any letter, he presumed to be a present from the queen of spain. doubting the propriety of accepting it under such circumstances, mrs. humphreys presented the casket to the president of the united states, who put it into the hands of the secretary of state. the secretary of state declining to decide the constitutional question, whether mr. humphreys could with propriety retain it, ordered it to be returned to him for the purpose of being sent back to spain, or otherwise disposed of as he may think proper. mr. humphreys refused to receive it back on such terms: it consequently remains with the chief clerk in the department of state, and mr. h. now requests congress to give orders for sending it back to spain, or for disposing of it in such other way as they may think proper. he makes the same request respecting a sword presented him by the dey of algiers, which is also in the hands of the chief clerk of the department of state, under similar circumstances. the subject, after considerable conversation in the house, was referred to a select committee to report their opinion thereon. _french spoliations._ mr. mitchill called up his resolution respecting french depredations, as follows: "_resolved_, that a committee be appointed to inquire by what means the value or amount of property taken from citizens of the united states by the french during the late war in europe can be best ascertained, and the several sorts of captures distinguished and classed, and report thereon to this house, to the end that indemnification be made." mr. bayard offered an amendment, which was agreed to, striking out the latter part of the resolution, and instructing the committee to report their opinion whether indemnification shall be made. after a very desultory debate on referring the resolution to a committee of the whole, or to a select committee, and the rejection of a motion of reference to a committee of the whole, the question was taken on the resolution as amended, which was determined in the negative--ayes , noes . the house adjourned. monday, january . another member, to wit, john fowler, from kentucky, appeared, and took his seat in the house. _french spoliations._ mr. bayard observed that a resolution offered some days since by a gentleman from new york, (mr. mitchill,) of considerable national, and of great individual importance to a large description of citizens, appeared to him to have been disagreed to more from considerations of form than substance; as the merits of the subject were not, on that occasion, brought into discussion. in order to meet the ideas of gentlemen who desired, in the first instance, to decide the principle whether indemnity ought to be made to our merchants, he submitted the following resolution: _resolved_, that provision ought to be made by law, to indemnify the citizens of the united states who, in carrying on a lawful trade to foreign parts, suffered losses by the seizure of their property made by unauthorized french cruisers, or by any french cruiser, without sufficient cause, in violation of the rights of american commerce, during the late war between great britain and the french republic, and whose claims for indemnity against the said republic were renounced by the united states, by their acceptance of the ratification of the treaty lately made with france. mr. bayard moved the taking up the resolution for consideration; on which the house divided--yeas , nays . resolution ordered to lie on the table. about o'clock the galleries were cleared, and the house remained with closed doors till o'clock, when they adjourned. wednesday, february . _french spoliations._ mr. hill called for the order of the day on the bill to prohibit the importation of certain persons, whose admission is prohibited by laws of the states. mr. bayard requested the gentleman to waive his call for one moment, to enable the house to take his resolution respecting french spoliations, laid some days since on the table, into consideration for the sole purpose of giving it a proper disposition. his object, some days since, when he called it up, was to have it referred to a committee of the whole house, not to urge its discussion on that day. his object was now the same, and his sole wish was that it should be referred, and a day named for its consideration. as, however, said mr. b., it may be voted down now, as it then was, without any reasons being assigned, gentlemen will excuse me for calling the yeas and nays. i hope gentlemen will so far at least comply with the forms of justice as to suffer the case to be considered, whatever may be their ultimate decision upon it. mr. randolph said he would ask the gentleman from delaware, whether he had seen any indisposition in that house to discuss the subject? for his part he had seen none, either in the house or in any individual member. he felt no objection to take up the subject at any time, and to discuss, or rather to hear the gentleman from delaware discuss it. he hoped, therefore, the gentleman would not persist in taking up the time of the house by calling the yeas and nays. mr. bayard said he had seen an indisposition in the house to discuss the subject; and the reason why the gentleman from virginia had not seen it was, that he was not in his place on the day he had before moved that the resolution should be taken up. had he been in his place, he would have seen that a motion to take it into consideration had been rejected without a single reason being assigned. but under the assurance of the gentleman, that there was no aversion to consider the subject, he would waive his call for the yeas and nays. mr. randolph said he spoke only for himself. mr. bayard replied that he then persisted in the call. the yeas and nays were then taken on taking up the resolution; and were--yeas , nays . the resolution was referred to the committee of the whole without opposition. when mr. bayard moved that it be made the order for monday next. mr. r. williams moved the d of march. mr. gregg thought it was best to take the resolution up fairly and decide it at once. mr. r. williams said he was willing to meet it fairly, but he thought one day sufficient for the investigation. mr. huger had no hesitation in saying this was a question of great moment, and one well worthy of the deliberate attention of the house. to be sure, if there was a great press of important business, he would acquiesce in its postponement. but this was not the case. there was no business before the house of pressing importance. he was in favor of a fair and full investigation of the subject. the motion to make it the order of the day for the last day of the session, when the press of other business would absolutely preclude any attention to it, was tantamount to a refusal of all investigation whatever. unless the motion was withdrawn, he would, therefore, call for the yeas and nays. mr. bacon said his mind preponderated against the claim. but to him it appeared that a postponement to such a day, would be the same as declaring the claim should not be attended to. if the claim should be sustained by the vote of the house, it would surely require more than one day to make the necessary arrangements for carrying it into the shape of a law. mr. bayard.--no doubt the observation of the gentleman from massachusetts is correct, that a postponement to the last day of the session is, in effect, precisely the same as to reject the claim altogether. gentlemen ought to consider that our sole object is to bring into discussion the claims of our citizens. i do not undertake to express any opinion of the validity of the claims. no member on the floor is less personally or locally interested than i am. but i do think that no claim whatever, of the meanest nature, should be decided upon until the party is heard. many of our citizens, who have incurred losses, suppose they have an equitable claim on the government. the claims have been announced in the public papers, and in petitions on the files of this house. is it then for this house to say they will not attend to the petitions of our citizens? for what do we ask? simply for a discussion, and that a decision shall not be made until those who consider themselves aggrieved shall be heard. are gentlemen unwilling to trust themselves, lest their own consciences should compel them to an act of justice? but i will abstain from going into the merits of the subject. i will only repeat that there is no petition, however worthless, but the house pays it a decent respect, by referring it, and allowing time for its examination. will they then, in a case of such magnitude as this, where there are so many claims, so variously characterized, will they refuse this ordinary measure of respect? i will expect a different decision from the justice and candor of the house. mr. r. williams said he would withdraw his motion, and move that the subject be made the order of the day, for the first day of march, which would allow sufficient time for a full and fair investigation. mr. smilie did not know what the gentleman from delaware meant, when he said we were not willing to trust our consciences. he hoped every gentleman had as good a conscience as the gentleman himself. for his own part, if there was time to discuss this subject, he would be willing to hear it discussed, and it would then appear who brought the merchants into their misfortunes, and who occasioned their losses. but, as he believed there was not now time, he thought it best to postpone the consideration of the subject until the next session, when it would fully appear who had been the friends, and who the enemies of our merchants. in the mean time he would only add that he would never be one of those who would consent to tax the agricultural interests of the country to pay the merchants. mr. rutledge observed that it was important that our merchants should be extricated from their present embarrassments. they wish to know the disposition of congress on their claims. this cannot be done if the present motion obtain; for the subject, in that event, will be disposed of this session precisely as it was the last. it was then referred, at an early period, to a committee with whom it slept until near the close of the session, when a report, merely of facts, was made. the report was then made at a late day of the session, and the house never took it up. it is now proposed to be postponed until a very late day of this session, and it will then not be taken up. whatever the opinions of some gentlemen may be, it is a fact that many honorable and unfortunate merchants are now struggling with their misfortunes, produced by french spoliations, whom the hope of relief from government has saved from ruin. they wish to know their fate, and no longer to be kept in suspense. let their claims then be decided at once; and if gentlemen are ready to say they shall not be indemnified for losses, which, but for the renunciation of the treaty, they would have been indemnified for by france, let them say so. it is known that france would have indemnified for these losses, but for the treaty. the most respectable letters have been received from france to this effect; and mr. r. said the fact was within his own personal knowledge. under these circumstances the claims ought to be taken up and decided upon speedily. if the gentlemen were serious in naming so late a day, the house must be troubled with the calling of the yeas and nays; as it was impossible to expect that any thing that would be effectual could be done after the first of march, as all the measures adopted by the house required the concurrence of the senate and the details of a law. mr. r. williams said he never permitted himself to propose any thing to that house in which he was not serious. he was serious in his belief that if his motion should be adopted there would be full time allowed for an investigation of the subject. he was in favor of the distant day he had named, inasmuch as he was convinced that it would protect the house from the unnecessary consumption of a great deal of time, and which, if taken up now, would interfere with the transaction of much important business. full time would still be allowed to decide the question of indemnity. he did not know that more was required this session by any body. he had not heard any member say that a law would be necessary this session. all that was required was a decision preparatory to a law. in his opinion this was an improper time to discuss the merits of the subject; he should, therefore, make no reply to observations of this nature, which, he thought, had been improperly offered at this stage of the business. mr. bayard said he had not fallen into the same mistake with his honorable friend from south carolina, in considering the gentleman from north carolina in earnest in the motion he had made. he had not thought him serious, as the day named by him was so late as not to allow time sufficient for a fair discussion. the gentleman was not a new member, and his experience could tell him how imperiously the house were occupied, during the last two or three days of its sitting, in detail indispensably necessary to complete business already begun. he had seldom known the close of a session, when it had not been necessary to sit on sunday or till midnight. how then could it be expected that, at such a period, even the semblance of justice could be done to the subject? whereas, if it were earlier attended to, they might consult their own convenience. if it happened, as had heretofore been the case, that they had more time than they knew what to do with, a much earlier day could be fixed on. but should the subject be postponed till the first day of march, it might be said, if the house should not then go into committee on it, that a day so late had been named with a view of deferring the subject to the next session. while, if the house, actuated by magnanimity and justice, shall go into its consideration, it would put it in the power of a minority, or even a few members, to prevent the transaction of other important business. mr. b. said he would not pledge himself; but he rather thought the subject could be discussed in the course of one day. the gentleman from pennsylvania had mistaken him on the point of conscience. this was not astonishing, as that gentleman often made mistakes. he had said nothing about the conscience of that gentleman, as he knew nothing about it. he was asked whether gentlemen were unwilling to trust themselves, lest their own consciences should compel them to do an act of justice. this was all he had said, and it had not been said with any view to impeach the conscience of any gentleman on the subject. mr. bacon hoped this business would be so conducted as to show a disposition on the part of the house to meet these claims on honorable and fair principles, and so as to manifest no indisposition to a fair and full discussion. it was undoubtedly a serious question. there were a number of respectable characters interested in the decision--respectable, because citizens of the united states. he hoped their claims would be treated with all the candor and liberality they had a right to expect. he apprehended that two or three days were not sufficient, amidst the crowd of other business at the end of a session, for a fair and full examination. he should, therefore, vote against the motion. mr. dawson hoped the motion would prevail. a resolution in a great measure similar to that now proposed by the gentleman from delaware had been offered some time since by a gentleman from new york. it was moved to refer that motion to a committee of the whole and negatived; afterwards a motion was made to refer it to a select committee, which was also negatived. he did conclude, from these decisions, that a majority of the house were not disposed to discuss the merits of the question this session. he believed this was still the sentiment of the majority, who considered the subject as not yet ripe for decision. he, therefore, thought the taking it up at an early day would only serve to waste time. mr. gregg said, that so far as his mind was made up, he was against the claim; but he was, notwithstanding, in favor of a full discussion of it. the subject had been attended to. the committee appointed last session had gone into a laborious investigation of it; and had made a report containing very important statements and facts. he wished the consideration to be so far delayed, as to allow time for the printing of this report. he was against a postponement to the first day of march; but thought the second monday in february would answer. mr. thatcher said he felt gratified at the house manifesting more liberality in giving an opportunity now to discuss the subject than had been manifested before. attempts made during the last session to discuss the subject had ended in nothing. this session, when the gentleman from new york (mr. mitchill) had offered a resolution, it had been negatived. the motion of the gentleman from delaware (mr. bayard) to take up the present resolution had also been negatived. but now a considerable majority were for taking it into consideration. he was, however, surprised at the motions for making the consideration of the subject the order of the day for the first and third of march, as they would in effect frustrate all discussion, from the press of other business. the subject was of infinite importance; millions depend upon the decision. the merchants were anxious to know the result. a state of suspense was, of all states, most painful to them. why then put off the decision of a claim in his opinion just, and to which the house ought not to shut their ears? mr. eustis said, whatever may have been the intention of the mover to postpone to the first of march, and of the intentions of gentlemen on this or any other occasion, he had no disposition to inquire--the tendency of the postponement will be to preclude a deliberate discussion. those more conversant with the course of business knew, better than he did, the pressure of business which necessarily crowded the last days of a session; and he was more averse to the motion from the avowal of an honorable gentleman from virginia, (mr. dawson,) who had risen to support the motion, and avowed his principal reason to be a conviction that the present congress ought not to take any decisive measures on the subject of the claims. he differed widely from that gentleman. independently of the magnitude and extent of these claims, and of the situation of those concerned, the house were called upon by a sense of public duty to bestow upon them a cool and deliberate consideration, which on ordinary occasions was extended to applications of an individual and inferior nature. the common course of business brings this subject to view. it will be recollected that, at the last session of congress, the memorials of the claimants were referred to the consideration of a select committee. that committee reported a state of facts, and closed their report with the following words: "upon the whole view of the case, the committee submit it to the house, to determine whether the government of the united states are in any respect bound to indemnify the memorialists; and whether there be any ground for discrimination between the cases of losses sustained before the acts of the th of may, , the th of july, , and the th of july, ; and cases of losses sustained after those periods." from the late day of the session in which this report was made, no order was taken on it, no discussion was had. by this part of the report facts are offered for consideration; data are furnished; a discrimination, in point of time, and of course in point of merit, is made; and the final determination is submitted to the house. a sense of justice to the memorialists and a strong sense of public duty require that we meet the question and come to a decision. those who appear already to have judged the question may possibly see in the statements which have been made, and the arguments by which the claim will be supported, reasons to alter their opinions. in any event, and especially after a discussion, in case of an adherence to those opinions they appear already to have formed, if they fail to produce conviction on others, the reasons on which they ground those opinions may be useful to the house, and will accompany and justify the vote they shall finally give. when the question shall be decided (and i hope it will be in favor of an earlier day than that moved for) i shall move that the report of the committee of the last winter shall be referred to the committee of the whole, together with the resolution under consideration. it will be also proper at that time to give a second reading to the memorials which have been presented--the grounds on which they rest their claim will be brought again into view, and by giving them a free discussion and consideration we shall be better enabled to come to a just decision. these claims, like conscience, are of no party; the misfortune has been indiscriminate, and it is to be expected the final determination will be just. mr. holland advocated a full discussion, and the assignment of an early day. when the yeas and nays were taken, on making it the order of the day for the first of march, and it was decided in the negative--yeas , nays . on motion of mr. bayard it was made the order for the second monday in february. thursday, february . _amy dardin's claim._ a petition of amy dardin, of the county of mecklenburg, in the state of virginia, widow and relict of david dardin, deceased, was presented to the house and read, praying compensation for the value of a stud horse, called romulus, the property of the deceased, which was impressed into the service of the southern army under the command of major general greene, by order of james gunn, captain in a regiment of continental cavalry, some time in the month of july, one thousand seven hundred and eighty-one. referred to the committee of claims. tuesday, february . _district of columbia._ the house went into a committee of the whole on the following resolutions, offered by mr. bacon: "_resolved_, that it is expedient for congress to recede to the state of virginia the jurisdiction of that part of the territory of columbia, which was ceded to the united states by the said state of virginia, by an act passed the third day of december in the year , entitled, "an act for the cession of ten miles square, or any lesser quantity of territory, within this state, to the united states in congress assembled, for the permanent seat of the general government." _provided_, the said state of virginia shall consent and agree thereto. "_resolved_, that it is expedient for congress to recede to the state of maryland the jurisdiction of that part of columbia which was ceded to the united states by the said state of maryland, by an act passed the th day of december, in the year , entitled "an act concerning the territory of columbia and the city of washington:" _provided_, that said state of maryland shall consent and agree thereto." the first resolution being read, mr. smilie said it was not his wish to take up the time of the house, but barely to assign, in a few words, his reasons for the vote he should give. in the last congress he had voted against the assumption, and he had heard no reasons since to change his opinion on the propriety of that vote. he should, therefore, vote now for a retrocession. he never could understand the reason for giving congress an exclusive jurisdiction over ten miles square. he believed there was but one reason: it had been thought good policy to introduce this article into the constitution to facilitate its adoption, as it was known that all parts of the union were anxious to have the seat of government. it did not appear to him, in any proper point of view, necessary that congress should possess such exclusive jurisdiction. there was no doubt that, let congress sit where they would, they would always have sufficient power to protect themselves. unfortunately, however, there was on this subject an association of ideas in the minds of many persons, not in the least connected, which was, that the residence of congress in this place, and their possessing exclusive jurisdiction, was the same thing. if the exercise of exclusive jurisdiction could have any effect on his mind, as to the other point, it would be directly opposite, as he would much rather sit here without than with exclusive jurisdiction, as we cannot possess this authority without depriving the citizens of rights which were the most dear to them. when he looked around him, and saw no man, unless a stranger, who was not a political slave, he felt the most painful sensations. under our exercise of exclusive jurisdiction the citizens here are deprived of all political rights, nor can we confer them. if congress can derive no solid benefit from the exercise of this power, why keep the people in this degraded situation? it is true, this place may be settled by foreigners; but can we suppose that any native citizen, who values his political rights, will come here? for the honor of the country, he must suppose there would be none. why not then restore the people to their former condition? mr. s. concluded by declaring that the act of retrocession would have no effect upon his mind as to staying here. mr. bacon said he would state, in a few words, the reasons that influenced him in submitting these resolutions. in the first place, he knew of no advantage which the united states derived from retaining the exclusive jurisdiction of the district. therefore, if the states to which it originally belonged were disposed to take it back, there could be no objection derived from this consideration. in the second place, it appeared, from their short experience, that the exercise of exclusive legislation would take up a great deal of time, and produce a great expense to the nation; and it was probable that, in the course of events, the trouble and expense would increase with the increasing number of the inhabitants. should justice be done to the exercise of this power, it was likely that as much time would be spent in legislating for this district as for the whole united states. it was certain that very considerable time would be consumed. they would likewise be subjected to other expenses than those attendant on legislation. in the next place, the government would be very diverse from that in the other parts of the union. he would rather see the government in the united states uniform. here the citizens would be governed by laws, in the making of which they have no voice--by laws not made with their own consent, but by the united states for them--by men who have not the interest in the laws made that legislators ought always to possess--by men also not acquainted with the minute and local interests of the place, coming, as they did, from distances of to , miles. from these considerations, he inferred their incompetency to legislate for this district, whatever their disposition might be. these were the principal reasons that influenced his mind. they might however, perhaps, be easily obviated by the reasons of other gentlemen, which he would be glad to hear. mr. huger was opposed to the resolutions, first, because he was not inclined hastily to make alterations in the great national compact that held us together. it appeared to him that, though they might not always understand the reasons on which a part of it was founded, yet it was prudent not to change it until experience had clearly proved its inconvenience. it must be obvious that it was easier to perceive its present inconvenience than to foresee the effects that may ensue from a change. the constitution contemplates the exercise by congress of exclusive legislation over ten miles square. it must impress itself upon the mind of every gentleman that the wise men who framed the constitution deemed it proper. congress also had thought it proper, as well as two of the most respectable states in the union--the one by receiving and the other by granting the territory. all these considerations impressed his mind with a disinclination hastily to alter the course that had been pursued. mr. dennis regretted that he had been called out of the house when this subject was taken up, as, in the remarks which he considered it his duty to make, he could not avail himself of the ideas suggested by other gentlemen, and as he might repeat what had been perhaps already said. he would undertake, however, to show that the proposed resolutions were objectionable in every point of view that could be taken of them. they presented two aspects. admitting, in the first place, that they could be carried into effect, so far as to restore the people of the territory to the situation in which they were placed before the cession, yet it appeared to him a strong objection that all the advantages of exclusive jurisdiction would be thereby lost. he had always thought that part of the constitution which gave congress exclusive jurisdiction over a district of ten miles square wise and proper, and that a government whose laws were to pervade the whole united states ought not to be subjected to the whim or caprice of any part of the united states. by exclusive legislation, he understood the exclusion to the states of all participation in legislation. he admitted that it was competent to congress to sanction the acts of maryland and virginia; but he believed that no one would contend that congress could divest themselves of an ultimate control. they might admit the legislatures of maryland and virginia to legislate for the territory, but congress possessed the power of controlling or modifying their acts. he would wish to know what advantage there could be in giving this legislative agency to those states? if given, no doubt could be entertained of many acts passed by them being disagreeable to the people of the territory, who would apply to congress to repeal them. the next congress, too, would have the power of resuming the jurisdiction, or, more properly speaking, the jurisdiction would still remain in congress. under such a qualified cession, he presumed the legislatures of virginia and maryland would refuse to act; for, why should they legislate for people not within their limits? the power of legislation might as well be vested in the legislature of massachusetts. the truth is, that our jurisdiction would be paramount, and the acts of maryland and virginia would go into operation merely by our permission, and congress might repeal and amend them whenever and howsoever they pleased. we should, therefore, be then relieved from no trouble that we now experience. there would then be as many applications to pass laws as there are now. in another point of view he was astonished at these propositions, and at the quarter from which they came. the gentleman from massachusetts (mr. bacon) has told us that his resolutions are bottomed on the broad basis of the rights of man; but he would ask how this could be, when the resolutions went to transfer twenty thousand men, without their consent, to a government different from that under which they now live? gentlemen are going to imitate some of the extraordinary scenes that have lately occurred in europe, and propose to transfer this district with the same facility that in that quarter of the globe they have transferred an italian dukedom or a german principality. mr. dennis thought the situation of congress in relation to the people of this territory was not sufficiently understood. he knew that it was always troublesome to legislate for any people: he foresaw these inconveniences when they removed to this place. he had thought then, as he thought now, that some legislative government must be provided for the district. in this opinion he had never varied, but had, from successive events, become more confirmed in its accuracy. but, if gentlemen object to vesting the people with the power of government, he thought he could suggest a plan better than that of retrocession, to wit: to vest the president with the power to revise the laws of maryland and virginia, and make a report to the next session of congress. the laws of maryland and virginia were generally agreeable to the people, but they experienced many inconveniences from local and peculiar circumstances. wednesday, february . _district of columbia._ the house then resolved itself into a committee of the whole on the resolutions of mr. bacon to recede to the states of maryland and virginia the district of columbia. mr. bayard hoped the committee would not agree to the resolutions. he did not believe that a constitutional power existed enabling the government of the united states to recede the territory. the territory had been acquired by the direction and under the permission of the constitution. the constitution also allows the cession by particular states. when, therefore, gentlemen say congress has the power to recede, he was at liberty to call upon them to exhibit that part of the constitution that conferred the power. he had looked over the constitution with a vigilant eye, and he could see nothing to this effect. can it be done without power? do gentlemen recollect that the government of the united states is federative, and of course possessed of limited powers; and what is not delegated does not exist; and that there is an express provision that powers not expressly given shall not be assumed by implication? it was difficult to point out a non-entity. if gentlemen contend for an entity, they should distinguish it. if congress have the power to recede this territory, they have also the power to recede the others, the indiana and mississippi territories. it is an extremely different thing to receive a cession and to recede it after it is received. congress has the power to do the one, but not the other. how can the retrocession be made? gentlemen say, by law. that law may be repealed. if receded, what would be the situation of the territory? it could be no affair of contract. for a contract cannot exist without a consideration. though, on the cession, there was a consideration, in receding there would be none. would there be a power in virginia and maryland, if receded, to prevent a resumption? such a measure showed but little respect for the people of the territory. as far as he knew the sentiments of the people, it was not their wish to be receded. they were willing to live under the protection of congress. the gentleman from pennsylvania has called them slaves. they may not thank him for the appellation. if they were slaves, there must be some corollary; and if so, we must be their tyrants. but they are not slaves; they are children, over whom it is not our wish to tyrannize, but whom we would foster and nurture. are we, in the character of representatives of the united states, to be considered as their tyrants, because they are not immediately represented here? we ought not to decide this question until the people express their desire to return to the states. but there is a more serious consideration relative to the people of the territory. it is proposed to recede the district to maryland and virginia. once take that step, and what obligation was there in congress to remain here? he felt there was none. the obligation to remain arises, in a great measure, from the cession, and by destroying that, you extinguish the sense of the obligation to stay. this may be the object of gentlemen. a number of the measures lately proposed appeared to have that tendency. one motion had been made to concentrate the public buildings. violate one stipulation of the government, or disappoint a reasonable expectation that had been excited by the measures of the government, and the ruin of hundreds follows. now, a motion is made to recede. combine these two operations. unfix the capitol, and recede the district, and, believe me, congress will soon take wings and fly to some other place. it had been truly remarked, on a similar occasion, by those interested, though these things may be sport to you, they are death to us. not a motion of this kind had been made, or could be made, that did not depreciate the interests of the place, and frustrate the object professed. by such means, our accommodations will be impaired, all enterprise be subdued, and industry languish. he hoped, therefore, that the house, by a decided vote, would reject these resolutions, and put all similar ones to sleep. mr. gregg said he had expected that this question would have been decided by a silent vote. he, for his part, had no intention of having troubled the committee with any observations of his on the subject, but as other gentlemen had seen proper to enter into a discussion of it, he would beg the indulgence of the committee while he assigned, as concisely as possible, the reasons that would influence his vote. having been a member of the legislature at the time the act was passed for assuming the jurisdiction of the territory, he foresaw pretty clearly most of the difficulties in which we are now involved by that act, and therefore had given it his opposition in every stage of its passage. a majority of the legislature, however, at that time, entertained a different opinion, and made the assumption. from that moment he had considered a contract to be fully complete and ratified between the states of maryland, virginia, the people of the territory of columbia, and the government of the united states. that contract he considered as of permanent obligation, not to be done away, but by the unanimous consent of all the parties. mr. smilie could not agree either with the gentleman from delaware or with his colleague (mr. gregg) on the constitutional question. we had a power to accept the cession, or not to accept it; from which necessarily resulted the power of recession. instead of arguing as the gentleman from delaware, he would call on him to point out in the constitution the prohibition. his colleague talked of a moral obligation to keep the territory. this might exist, if it were proposed to force this territory on the states without their consent. the gentleman seems to have taken offence at the expression which had fallen from him of slaves. for his part, he had never been accustomed to courtly language, but to the expression of his ideas plainly and openly as he conceived them. he certainly had not used the expression with any intention to treat the people of this territory with disrespect; but to express his regret at the degraded situation of those who were formerly in possession of the full rights of citizenship. the gentleman seems also offended at the epithet of tyrants applied to us. mr. s. would ask the gentleman from delaware, if ever he knew a government possessed of unlimited power, who had not abused it. this was the condition of this government, which he hoped, however, if continued, would be moderate. he had expected that gentlemen opposed to the retrocession would have shown the benefit to be derived to the united states from retaining the jurisdiction. if there were none, it was useless and dangerous, inasmuch as it could only be done at the expense of the rights of the people. he was surprised yesterday at the remarks of the gentleman from maryland, (mr. dennis,) that this measure would deprive twenty thousand people of their rights. how could this be, when they had no right to be deprived of? you may give them a charter. but of what avail will this be, when congress may take it away at any moment? they would continue for ever to be ultimately governed by a body over whom they had no control. mr. s. concluded by again observing that he had always thought the assumption wrong; but that he had no idea of connecting that consideration with the removal of the government. it could have no influence on his mind. he would go farther, and say that he had no idea of removing; nor did he believe they could remove. mr. randolph said that, whatever reasons might be advanced on the ground of expediency against the adoption of the resolution, he wished to say a few words on the constitutional objections which had been offered to them. the gentleman from delaware (mr. bayard) told us, on a very late occasion, that the power to create involved the power to destroy; and although i may not be willing to adopt this maxim in all the latitude in which it was urged by that gentleman, i have no hesitation in averring my belief that congress possess the right, with the assent of these states, respectively, to cede the several portions of this territory to maryland and virginia. nor, in my opinion, does this doctrine militate against that construction of the constitution, which regards that instrument in the light of a limited grant of power. in this construction i heartily concur with the gentleman from delaware, or rather, if he will permit me to say so, i am glad to find he agrees with me, as i have retained my opinion, whilst he seems to have changed his. i readily admit that congress possesses no power but that which is devolved on them by the constitution, explicitly, or which is evidently included in, or deducible from its plain provisions. the constitution nowhere gives congress the express power of repealing laws; but the repeal of laws is essentially connected with the power of passing them, as, in this case, the right to recede is involved in the right to accept the cession. the parties to this compact are the united states, of the one part, and the states of maryland and virginia, of the other. we speak the voice of the united states, and, among others, of maryland and virginia, in their confederate capacity. the legislatures of those states answer for them in their individual capacity. if all these parties are agreed to revoke their act, i wish to know who is to dissent to it, or what obstacle can prevent its being rescinded? mr. r. said, that he was of the number of those who voted against assuming the jurisdiction of this territory. he did it from a predilection for those principles in which the american revolution originated; from the firm belief that men ought not to be bound by laws in whose formation they had no influence. it was the violation of that principle, and not the extent to which it was carried, which laid the foundation of our independence. for, let it be remembered that the demand of great britain went only to a peppercorn; but that we disdained the admission of so odious a doctrine, and commenced a determined and successful resistance. but it is denied that this territory is in a state of slavery, because, says the gentleman, it implies that we are tyrants. the term slavery, sir, excites in the mind of man an odious idea. there are, however, various species of this wretched condition. domestic slavery, of all others the most oppressive; and political slavery, which has been well defined to be that state in which any community is divested of the power of self-government, and regulated by laws to which its assent is not required, and may not be given. nor have i ever before understood that slavery, particularly of the last description, necessarily implied tyranny, although it too frequently is productive of it. but, so far from being slaves, the people within this territory are, it seems, our children, who are to experience every indulgence at our hands. sir, the form of government, such as has been described, however mild and beneficent it may be in its administration, places those subjected to it in a state of political slavery, and they are as completely divested of self-control as the infant who is dandled on the knee of its parent. as to the existence, then, of this species of slavery, it mattered not whether the people within the limits of this district were regarded as the favorite son, and feasted on the fatted calf, or were exposed to the cruel rigor of a step-mother. an idea had been held out from a very respectable quarter that this district might, in time, become a state. as to congress, what difference will they find between being under the jurisdiction of the state of columbia, or the state of maryland. but, if this objection were removed, it is impossible that this territory can become a state. the other states can never be brought to consent that two senators and, at least, three electors of president, shall be chosen out of this small spot, and by a handful of men. the constitution seems to have intended, by its provision on this subject, to guard the general government against the undue influence of any particular states wherein it might sit. an insurrection in philadelphia is mentioned by some gentleman as having given rise to this clause in the constitution. the constitution, no doubt, had a wise end in view, but it has failed in the means of attaining it. no man has a higher respect than myself for the talents of the framers of that instrument. but let it be remembered, that they were making a great experiment, and to have failed in but a single object, is the highest proof of their wisdom. the physical force of this small district would prove but a poor defence against the aggression of large and powerful states. happily, our security is more amply provided for; it results from the command which has been given us over the sword and the purse of the union. our protection is not in a mathematical line--which would oppose but a feeble resistance to an invading foe. but let gentlemen ask themselves, why the inhabitants of this district should be less formidable if disposed to insurrection because under our own jurisdiction? look at paris! was the insurrection of the fourteenth of july, which humbled into the dust the ancient monarchy of france, the effect of a want of jurisdiction; of a want of power in the government over the lives and fortunes of the people? did the city afford the government a defence? no, it was in insurrection. did the military send its aid? on the contrary, it joined the insurgents. what was the fact at philadelphia? that congress was insulted by its own troops. would the civil jurisdiction of the town have repelled the bayonet? no, it was not in parchment to afford this defence. it has left us an awful lesson against standing armies; and if we shall ever be so infatuated as to multiply armies about us, we may rely in vain on the lines of circumvallation which the limits of our exclusive jurisdiction form. the constitution, therefore, has failed in its endeavor to give to congress any other security than that which public opinion and the command of the national resources afford. but, whilst i have no doubt on the subject of our constitutional right, i am opposed to the resolution on the ground of expediency. it appears to have disseminated a great alarm among the people of our immediate neighborhood. at a proper time, when great unanimity can be obtained, it may be carried into effect. if now passed, it is irrevocable; and i have no indisposition to give the question the most mature deliberation, and to give it a fair operation on the public mind. i could wish, indeed, to see the people within this district restored to their rights. men in such a situation are, as it had been wisely and eloquently said, fit instruments to enslave their fellow-men. this species of government is an experiment how far freemen can be reconciled to live without rights; an experiment dangerous to the liberties of these states. but, inasmuch as it has been already made, inasmuch as i was not accessory to it, and as, at some future time, its deleterious effects may be arrested, i am disposed to vote against the resolutions. i view them as a fatal present to this house, although i respect the motives in which i believe them to have originated; as tending to disunite those who ought ever to act in concert; and i have no hesitation on a question of expediency to declare my disposition to concede something to the wishes and fears of those around me. in their present shape, at least, i shall therefore vote against the resolutions. mr. eustis was opposed to the resolutions, for the reasons which had been stated, and for other reasons not mentioned, though they might have occurred to the minds of gentlemen. he thought it right to express a difference of opinion with the gentleman from virginia, (mr. randolph,) on an important question, the exclusive jurisdiction of congress to the ten miles square. he was not prepared to pronounce the provision of the constitution on this subject deficient or unwise. it rather appeared to him to be founded in the nature of the government. a government on parchment, and without force, was no government at all. it had been stated this provision grew out of a transaction at philadelphia, and asked what dependence was to be placed on a military force when that force was itself the aggressor? but that transaction suggested a different result. had the militia been well equipped and ready for service, and under the immediate control of congress, would the military force have been suffered to overawe them? this very case furnished an argument for investing congress with the complete command of the militia force of the territory, to screen them from insult, and to protect them from the application of force that might destroy deliberation. they had already taken a course calculated to prove the soundness of this mode of protection. their laws had recognized the militia of the territory; and some measures had been taken to organize them. the militia was the physical force congress must rely on. suppose that militia were under the command of maryland, and congress was about to pass a law obnoxious to that state. suppose the militia of maryland to be mutinous, and to surround these walls. must you resort to maryland for protection, and wait on her measures? no; the situation of the territory and your immediate power over the militia must furnish you with the means of protection. he therefore thought it one of the best provisions of the constitution, to submit the physical force near the government to its direction. mr. southard rose only to make one observation, which had been touched on but lightly in the course of the debate. it appeared to him that when congress assumed the exclusive jurisdiction of the ten miles square, they had, in the first instance, entered into a contract with the legislatures of virginia and maryland. he had no doubt that, if the contract had ended here, they might, with their consent, make a retrocession. the second step, however, taken, was a contract between the agents of government and the proprietors, in order to obtain the soil. this contract appeared to him to be solemn and binding. in entering into the contract, the proprietors gave the general government sites for the public buildings, and half the residue of the land within the city plot. he conceived that this was a contract founded on express stipulations that congress should exercise exclusive jurisdiction. the proprietors had no idea, at the time they made the contract, that their property would be retroceded and the government had since received more than one million's worth of real property which they now enjoyed. he would ask, whether a retrocession, under such circumstances, would not have a retrospective effect, and impair those obligations which the united states were bound to observe? for this reason, he thought a retrocession improper, as it would be a violation of contract with the people of the territory. it appeared to him that, while they were satisfied, the general government ought to be satisfied. mr. varnum doubted the reality of the observation of the gentleman from new jersey. he suspected there was no such contract in existence. it was not the interest of the government of the united states to do any thing that would injure this district. he therefore supposed that every gentleman who voted on this occasion, would act for the interest of his country. if he thought it possible for congress to legislate for the territory, he should have no objection to retaining the jurisdiction. but, when he considered that congress were appointed to legislate on great objects, and not on minute local concerns, he did not think them competent to legislate for the persons situated in the territory of columbia. he did not know whether, if the jurisdiction was retained, it would not be proper to indulge the citizens with a territorial legislature. but to this the people themselves object. virginia objects to a union with maryland. there were, manifestly, hostile interests which could not easily be united. and if there shall be a territorial legislature, still congress has a right over their acts. whether this was the fit time to retrocede the territory he did not know; but he believed the time would come when the citizens of the territory will be in favor of it. mr. smilie stated the circumstances of the case at philadelphia, which had been so often alluded to by gentlemen. at the close of the late war there had been a mutiny among the troops, who had surrounded congress. not a drop of blood had, however, been spilt. this was the mighty incident of which so liberal a use had been made. he would ask whether, in countries over which the government had complete jurisdiction, worse things had not happened? he would ask, whether this menace of congress were to be compared with the mob of lord george gordon in a country over which the government had an entire jurisdiction. the question was then taken on the first resolution, for receding to virginia the territory originally attached to that state, and lost--ayes . when the question was taken on the second resolution, and lost, without a division. the committee rose, and reported their disagreement to the resolutions. the house immediately took up their report. mr. nicholson called for the yeas and nays. mr. randolph said, as he believed the house incompetent to legislate for the people of columbia; as he believed the interests of the several parts of the territory were as hostile as any in the union, as it was manifest there was an alexandria, a georgetown, and a city interest; and even, within the city, a capitol-hill interest, and a president's-house interest--which were irreconcilable; he should vote for the amendment of his colleague, (mr. dawson.) to attempt to legislate for the district was, in effect, to constitute the chairman of the committee, or, at any rate, the committee itself on the affairs of the territory, the solon or lycurgus of the place. it was well known that the indolence of the other members, or their indifference, inseparable from the situation in which they were placed, would prevent congress from legislating with a full understanding of the objects before them. he, therefore, thought it expedient to retrocede all the territory, excepting the city of washington. this disposition of the territory would leave entirely untouched the question which arose from the interest of individuals who had made purchases of property under the faith of congress retaining the jurisdiction. it was probable that, in such event, a corporation might be established in the city that would answer the ends of government, without two-thirds of the time of the national legislature being consumed. the question was then taken by yeas and nays, on concurring with the committee of the whole, in their disagreement to the first resolution, and carried--yeas , nays , as follows: yeas.--theodorus bailey, james a. bayard, thomas boude, richard brent, robert brown, john campbell, john clopton, john condit, manasseh cutler, samuel w. dana, john davenport, thomas t. davis, william dickson, peter early, william eustis, abiel foster, calvin goddard, edwin gray, andrew gregg, roger griswold, william barry grove, john a. hanna, daniel heister, william helms, joseph hemphill, archibald henderson, william h. hill, david holmes, benjamin huger, samuel hunt, george jackson, william jones, ebenezer mattoon, david meriwether, samuel l. mitchill, thomas moore, lewis r. morris, thomas morris, anthony new, thomas newton, jun., joseph h. nicholson, elias perkins, thomas plater, nathan read, john rutledge, william shepard, israel smith, john cotton smith, john smith, (of virginia,) samuel smith, henry southard, john stanley, john stewart, john taliaferro, jr., samuel tenney, samuel thatcher, thomas tillinghast, philip r. thompson, abram trigg, john trigg, george b. upham, killian k. van rensselaer, peleg wadsworth, lemuel williams, richard winn, and thomas wynns. nays.--willis alston, john archer, john bacon, phanuel bishop, william butler, samuel j. cabell, thomas claiborne, matthew clay, richard cutts, john dawson, lucas elmendorph, ebenezer elmer, john fowler, william hoge, james holland, michael leib, james mott, john randolph, jr., john smilie, john smith, (of new york,) josiah smith, richard stanford, david thomas, joseph b. varnum, isaac van horne, and robert williams. the second and last resolution to which the committee of the whole reported their disagreement, being twice read, in the words following, to wit: _resolved_, that it is expedient for congress to recede to the state of maryland the jurisdiction of that part of the territory of columbia, which was ceded to the united states by the said state of maryland, by an act passed the nineteenth day of december, in the year one thousand seven hundred and ninety-one, entitled "an act concerning the territory of columbia and the city of washington;" provided the said state of maryland shall consent and agree thereto: the question was taken that the house do concur with the committee of the whole in their disagreement to the same, and resolved in the affirmative.[ ] thursday, february . _ohio school fund._ the house resolved itself into a committee of the whole on the report of the committee of the second instant, to whom were referred, on the twenty-third of december last, a letter from edward tiffin, president of the convention of ohio, and a letter from thomas worthington, special agent of the said state, enclosing a copy of the constitution thereof, together with sundry propositions in addition to, and in modification of, those contained in an act passed at the last session of congress; and after some time spent therein, the committee rose and reported to the house their agreement to the resolutions contained therein, with two amendments, which being severally read, the first amendment was, on the question put thereupon, agreed to, and the other disagreed to by the house. the said resolutions, as amended, were again severally read at the clerk's table, and agreed to by the house, as follows: . _resolved_, that a donation, equal to one thirty-sixth part of the amount of the lands in the united states' military tract, within the state of ohio, be made for the support of schools within that tract. . _resolved_, that a donation equal to one thirty-sixth part of the county of trumbull, be made, out of the lands within the united states' military tract, for the support of schools within the said county of trumbull. . _resolved_, that a donation equal to one thirty-sixth part of the virginia reservation, so far as the unlocated lands, within that reservation, (after the warrants issued by that state shall have been first satisfied,) will supply the same, be made for the support of schools in the district contained between the scioto and little miami rivers. . _resolved_, that a like provision, for the use of schools, be made, out of any lands which may hereafter be acquired from the indian tribes. . _resolved_, that the lands which now are, or hereafter may be, appropriated to the use of schools within the state of ohio, be vested in the legislature thereof, in trust for that object. . _resolved_, that not less than three-fifths of the sum offered to be appropriated by congress for the opening of roads, from the western to the atlantic waters, shall be appropriated under the direction of the state of ohio, for the laying out of roads within that state. . _resolved_, that, in lieu of the township proposed to be granted for the use of an academy, by the act passed the fifth day of may one thousand seven hundred and ninety-two, there be granted to the state of ohio, for the purposes described in that act, one other entire township, within the district of cincinnati; provided that the state of ohio shall relinquish to the united states, all their claims, under the act aforesaid, against the said john c. symmes. . _resolved_, that these propositions shall depend on the compliance, by the state of ohio, with the provisions of the third proposition, and second section of the aforesaid act, entitled "an act to enable the people of the eastern division of the territory north-west of the river ohio to form a constitution and state government, and for the admission of such state into the union, on an equal footing with the original states, and for other purposes," passed the thirtieth day of april, one thousand eight hundred and two. _ordered_, that a bill or bills be brought in, pursuant to the said resolutions; and that mr. randolph, mr. elmendorph, mr. goddard, mr. henderson, and mr. archer, do prepare and bring in the same. thursday, february . _emancipated slaves from french west indies._ an engrossed bill to prevent the importation of certain persons into certain states, where, by the laws thereof, their admission is prohibited, was read the third time. and, on the question that the same do pass, it was resolved in the affirmative--yeas , nays , as follows: yeas.--willis alston, john bacon, theodorus bailey, james a. bayard, phanuel bishop, thomas boude, william butler, samuel j. cabell, john campbell, matthew clay, john clopton, john dawson, peter early, lucas elmendorph, ebenezer elmer, calvin goddard, edwin gray, daniel heister, joseph heister, william helms, archibald henderson, william h. hill, william hoge, james holland, george jackson, michael leib, david meriwether, anthony new, thomas newton, jr., joseph h. nicholson, thomas plater, john rutledge, william shepard, john smilie, samuel smith, richard stanford, john stewart, john taliaferro, jr., samuel tenney, philip r. thompson, abram trigg, john trigg, philip van cortlandt, joseph b. varnum, isaac van horne, robert williams, henry woods, and thomas wynns. nays.--robert brown, john condit, richard cutts, john davenport, abiel foster, john a. hanna, seth hastings, samuel l. mitchill, james mott, israel smith, josiah smith, henry southard, joseph stanton, david thomas, and peleg wadsworth. _resolved_, that the title be, "an act to prevent the importation of certain persons into certain states, where, by the laws thereof, their admission is prohibited;" and that the clerk of this house do carry the said bill to the senate, and desire their concurrence. tuesday, february . _military land warrants._ general lafayette. the house took up the bill respecting military land warrants. mr. davis hoped it would not be adopted without inquiring whether the land proposed to be given to general lafayette was the same as was given to other major generals. it was true he had rendered services to the united states, for which they had made him an allowance. there were other claims, in his opinion of greater force, made day after day, without being attended to. if this provision were annexed to the bill he should vote against its passage; though, otherwise, he would be glad to vote for it. if general lafayette was entitled to this land, he wished to see the business regularly conducted. we are now making provision for persons who have legal claims. it is right, therefore, to separate these subjects. let us attend to one first, and afterwards consider the other. mr. dawson.--when, on yesterday, i had the honor to submit this amendment, i indulged the pleasing hope that it would have received not only the vote of this house, but would have met with the patronage of all--of all the friends of justice, and of those who remember past services; and that it would have been adopted without delay and without debate. in this i have been wofully disappointed. my fond anticipation was immediately damped by a gentleman from new york, on whose friendship i did count, and do now expect; and the amendment, instead of finding sympathizing advocates, has met with an unexpected opposition; instead of finding friends proud to reward past services, it has met with enemies, seeking for reasons to withhold justice. mr. chairman, the search has been in vain; the grateful, the patriot mind will remember those services, while the reflection on a wish to withhold justice will be left as consolation to those who have made the search. sir, it was my wish, and it is my determination to support this amendment solely on the grounds of services rendered to us. whatever may have been the conduct and the situation of general lafayette since our revolution, humanity may lament; but, sir, it belongs to us to pay this tribute to justice, if not to gratitude. sir, on yesterday, i stated what was known to every gentleman of this house, that this gentleman at an early period of life, animated by the love of liberty, left the pleasures of an enticing court, encountered the danger of winds and waves, and entered into the service of a country known to him only by name, and endeared to him only by its devotion to that flame which he felt himself. in this service he continued until the end of our war, submitting to all the hardships and fatigues of the field; leading our armies to victory, and exposing himself to every danger; and this without any compensation, and at the sacrifice of the greater part of his private fortune. i stated more--that that fortune is now much reduced; and this is what i do know. yes, sir, i have spent two days with this adopted child of america on his little farm. i saw him surrounded by an amiable family, but not with wealth. i heard him pouring forth his best wishes for the prosperity and happiness of this country; and i witnessed his constant exertions to promote its interests. it may not be improper here to remember what i do know. some short time before i went to france, the first consul applied to mr. lafayette to come to this country as minister. he replied, "i am by birth a french citizen, by adoption a citizen of the united states. i have served in that country, and am so attached to its interest that i doubt, if a case of difficulty should arise, whether i should do justice to my own; if i did, i am sure i should be suspected, and therefore i will not place myself in that delicate situation." and now, sir, what is it that it is proposed to do for this gentleman; for him who rendered you services without emolument, and risked his life without hesitation; to this citizen of the united states; and not a foreigner, as the gentleman from kentucky has been pleased to call him? it is to give to him what we give to others; and what he never would have received had it not been for the reverse of his fortunes. and shall we hesitate? i trust not. sir, this is not only a question of justice, but it is of feeling; every soldier, every officer must feel for a fellow-soldier and a fellow-officer, and every citizen for a fellow-citizen; and such is mr. lafayette. whatever may be the fate of that amendment, if it shall be adopted i shall feel proud for my country. if it shall be negatived, i shall have the pleasing reflection of having discharged a duty to my country and to my own feelings. mr. t. morris said that the opposition he had made was more to the manner than to the matter of the motion. he thought it improper to decide upon it at so late an hour, and when there was scarcely a quorum of members within the walls. i have, said mr. m., no objection to the grant. on the contrary i think it ought to be made in consideration of the circumstances of general lafayette. i should indeed have wished that it had been the subject of a distinct bill. the value of gifts of this nature depends as much on the manner in which they are made, as on the gifts themselves; and i think the donation would, in this case, have been deemed more honorable, if a special bill had been passed, instead of inserting a clause in another bill. if there were time to bring in a distinct bill i should now vote against the amendment; but as i am unwilling to hazard the object altogether, i shall vote for it: expressing my regret, at the same time, that the gentleman who has viewed the distressed situation of general lafayette had not sooner brought the business forward. a debate of short duration ensued, between messrs. s. smith, shepard, dawson, and bacon, in favor of the amendment, and mr. davis against it, when it was carried without a division. on engrossing the bill for a third reading, messrs. southard, and shepard spoke in favor of, and mr. varnum against it--carried, and ordered to a third reading to-morrow. saturday, february . _french spoliations._ mr. bayard moved that the house do now resolve itself into a committee of the whole house on a motion of the thirty-first ultimo, "for indemnifying the citizens of the united states, who, in carrying on a lawful trade to foreign parts, have suffered losses by the seizure of their property, made by unauthorized french cruisers, or by any french cruiser, without sufficient cause," to which committee of the whole house was also referred, on the second instant, the report of a select committee, made the twenty-second of april last, on "the memorials and petitions of sundry citizens of the united states, and resident merchants therein, praying relief, in the case of depredations committed on their vessels and cargoes, while in pursuit of lawful commerce, by the cruisers of the french republic, during the late european war:" it passed in the negative--yeas , nays , as follows: yeas.--john bacon, james a. bayard, john campbell, samuel w. dana, william eustis, calvin goddard, roger griswold, seth hastings, william h. hill, benjamin huger, samuel hunt, samuel l. mitchill, thomas morris, thomas plater, nathan read, john cotton smith, samuel tenney, samuel thatcher, george b. upham, peleg wadsworth, and lemuel williams. nays.--willis alston, john archer, theodorus bailey, phanuel bishop, richard brent, robert brown, william butler, samuel j. cabell, thomas claiborne, john clopton, john condit, william dickson, peter early, lucas elmendorph, ebenezer elmer, andrew gregg, daniel heister, joseph heister, william helms, william hoge, james holland, george jackson, michael leib, david meriwether, thomas moore, james mott, anthony new, thomas newton, jr., john randolph, jr., john smilie, israel smith, john smith, (of new york,) john smith, (of virginia,) henry southard, richard stanford, joseph stanton, john stewart, john taliaferro, jr., david thomas, philip r. thompson, abram trigg, john trigg, philip van cortlandt, joseph b. varnum, isaac van horne, robert williams, robert williams, richard winn, and thomas wynns. thursday, march . _thanks to the speaker._ on a motion made and seconded, "that the thanks of this house be presented to nathaniel macon, the speaker, in testimony of their approbation for his conduct in discharging the arduous and important duties assigned him, while in the chair:" it was unanimously resolved in the affirmative, by yeas and nays, every member present voting in the affirmative. whereupon, mr. speaker made his acknowledgments to the house, in manner following: "gentlemen: accept my sincere thanks for the vote which you have been pleased to pass, expressive of your approbation of my conduct in the chair; they are also due to each of you, for the liberal support which i have uniformly received. "permit me to wish you a safe return home and happy meeting with your friends." a message from the senate informed the house that the senate having completed the legislative business before them, are now ready to adjourn. whereupon, mr. speaker adjourned the house, _sine die_. index to vol. ii. a _accommodation_ of the president, _see appropriations_. adams, john, vice president, attends senate, ; declares result of election of president to senate, ; gives notice to the senate of time he will take the oath, ; valedictory to the senate, ; reply to answer of the senate to his valedictory address as vice president, ; his inaugural address, ; presides in joint meeting of senate and house, to count the votes for president, ; remarks on mode of proceeding, ; his method of counting the votes, ; votes given to, for president in , ; declaration to the two houses of the votes for president in , ; notifies congress of the time he will take the oath as president, ; president of united states, ; reply to answer of senate to president's message, ; his proclamation calling extra session of congress, ; reply to answer of house to president's message, ; reply to answer of senate to message, ; reply to answer of house to president's message, ; reply to answer of house to president's message, ; message to house announcing death of washington, ; vote for, as president, ; reply to address of senate, ; reply to answer of senate to president's message, ; reply to answer of senate to message, ; reply to address of senate on death of washington, ; answer to address of house, ; letter to senate on public property in his hands, ; reply to answer of house to message, ; his administration, _note_, . _see message._ _see index_, vol. . adams, samuel, vote for, as president in , . _address in senate_, in answer to message at d session, th congress, ; in answer to message st session, fifth congress, ; d session, th congress, ; d session, th congress, ; st session, th congress, ; d session, th congress, ; of senate to president on death of washington, . _answer of house to message_, d session, th congress, considered, ; motion to lay over, ; unusual if not unprecedented motion, ; improper to go into the subject before members had time to reflect on it, ; the more expeditious, the greater will the effect be, ; a subject of extensive consequence, ; too important to be hastened, ; no precedent for delay, ; only two subjects on which there can be a difference of opinion, ; a delay would have a very unpleasant appearance, ; many bad consequences may attend hastening the subject, ; are we always to act by precedent?, ; motion to postpone lost, ; verbal amendments proposed, ; debate on, ; parts expressive of wisdom and firmness in the administration objected to, ; has been a want of firmness for the last six years, ; this want has brought the country to its present alarming condition, ; no reason to exult in the view of our foreign relations, ; our internal situation no ground for admiration, ; the government can go on very well after the president retires, ; no uncomfortable sensations felt at his retirement, ; wisdom and firmness not doubted, ; further debate, , , , ; no inconvenience from voting the address, ; shall one slip, one criminal slip rob the president of his good name?, ; duty of the house to do that patriot all the honor they could, ; united states do not enjoy "tranquil prosperity," ; we are not the proper organs to declare the people free and enlightened, ; condition of europe, ; further debate, , ; address adopted, . _answer of house to president's message_, st session, th congress, debate on, ; sections proposed to be inserted, ; the answer is predicated upon the principle of approving all the measures of the executive with respect to france, whilst the amendment avoids giving that approbation, ; which of the two grounds would the house take, was the question, ; the present a most important crisis, ; statement of the case, ; the rights of france relative to the three principal subjects which are causes of complaint between the two countries, ; arguments of our ministers recapitulated, ; free ships make free goods, ; contraband articles, ; carrying provision, ; if these amendments are agreed to, fresh insults and aggressions must be expected, ; was the conduct of france justifiable in rejecting our minister?, ; complaints of france, ; examined, , ; france considers our government and people divided, ; address objectionable in approving the course pursued in conducting our foreign relations and in expressions of resentment and indignation towards france, ; conduct of france considered, ; federalism and anti-federalism, ; amendment scrutinized, ; all the steps taken by the executive had a view to an eventual appeal to arms, ; shall the executive be approved, or france put on the same ground as other belligerents, ; any answer to message objectionable, ; further debate, ; facts disclosed by the message, ; the answer of the committee seems to express indignity on account of injuries received from france, and a determination to repel them--the amendment is in a conciliatory tone and recommends that negotiations be begun as with other belligerents, ; arguments in favor of each considered, , ; course of the debate, ; view of the question, ; from what line of conduct are we to expect the most beneficent issue, ; the amount of the question is whether we shall place all nations on a level as to commerce, and remove inequalities existing between them, ; a view of facts, , ; other amendments proposed, ; shall any notice be taken of the speech of barras?, ; it is an indignity, , ; amendments carried, ; moved that such members as do not choose need not attend at the presentation of the answer, ; all now obliged to attend unless sick or leave of absence obtained, ; the mover excused unanimously, if it would not comport with his, dignity to attend . _answer to president's message_, d session, th congress; verbal amendments proposed and adopted, ; an excuse from attending the ceremony asked, ; the house will not compel the members to go about parading the streets of philadelphia, ; none of the members particularly anxious for the society of the member who asks to be excused, ; no power in the house to compel any member to attend, ; further discussion, ; motion withdrawn, . _answer in house_, d session, th congress, ; st session, th congress, ; d session, th congress, . _address_ of house to president, _see index_, vol. . _admirals in the navy_, bill for their appointment reported, ; motion to postpone, ; no necessity for the bill, ; reasons for the appointment, ; postponement lost, . _african slaves_, memorial of quakers on, presented in senate, ; ordered to be withdrawn, . _see index_, vol. , african slaves and slavery and slave trade. albertson, job, a manumitted slave, petition of, . alexander, william, petition of, . _algerine captives_, ransom of, . _see algerine war_, index, vol. . _alien enemies_, bill relative to, ; amended bill reported, ; bill from house committee taken up, ; motion to rise for purpose of postponement, ; debate, ; motion withdrawn, . _alien and sedition_ laws, petitions for repeal of, , . _aliens_.--_see naturalization laws._ allen, john, representative from connecticut, , , ; on a naval armament, ; offers resolution for additional duty on salt, ; on relations with france, , ; on the naturalization laws, , ; on the sedition bill, ; on the expulsion of matthew lyon, . alston, willis, representative from north carolina, , , , ; against a mausoleum to washington, ; on the reading of the letter of james mchenry, . _amendment to constitution_, resolution relative to, . _see index_, vol. . ames, fisher, representative from massachusetts, ; on the address to the president, , , , , , ; on bill to increase compensation of president and other officers, ; on the accommodation of the president, ; on naval appropriations, , . amy dardin's _claim_, on a report to refuse the prayer of the petitioner the house voted in the negative, ; the vote a precedent against the act of limitation, ; an act of limitation should be considered only as a guard against fraud, ; cause of the act of limitation, ; any exception from the operation of the act should be in a general way, ; statement of the case, ; motion to report bill, ; claim just but opposed to limitation act, ; motion withdrawn, ; motion to refer report on petition to committee on claims, ; also moved to appoint a committee to report a bill, ; also moved to refer to committee on claims, ; referred to committee of the whole on excepting certain claims from operation of limitation act, ; resolution to appoint a committee to bring in a bill for relief, ; facts of the case, ; it will throw open a door to every claim heretofore determined as barred, ; setting aside limitation acts in most objectionable way, ; a hard case, ; it will not authorize the treasury to settle any claim, ; acts of limitation liable to strong objections, ; resolution lost, ; committee on claims report against prayer of petitioner, ; report adopted, ; referred, . _see index_, vol. . anderson, joseph, senator from tennessee, , , , , , ; on the resolutions relative to the right of the united states to the free navigation of the mississippi, . _appropriation bill_ for , amendments of senate, ; for , . _appropriations to purchase furniture_ for president's house; appropriation considered, ; indirect way of raising president's salary, ; what has been done in former years, ; if it was an increase of salary the president could dispose of the money as he pleased, but the furniture proposed for purchase remains the property of the united states, ; motion to strike out $ , and insert $ , --no reason for furnishing of the president more than that of any other officer, ; the thing wrong, a larger salary should be given, ; the situation of the president should be comfortable and respectable, ; further debate on the amount of the appropriation, , , . _military._--the hospital department considered, ; $ , moved, ; unnecessary to appropriate so much, ; $ , enough, ; $ , adopted, ; quartermaster's department, &c., considered, ; necessary to allow a certain discretion to the secretary with regard to specific sums, ; appropriations of previous years, ; appropriations for repairing certain posts on lakes should be rejected, as it will become a yearly expense, ; state of those works not known, ; appropriation for west point, debated, , ; items agreed to, ; motion to insert an item for the purchase of horses and equipment of cavalry, ; debate, , . _see defensive measures_. question of filling blanks, considered, ; accounts of war department obscure, ; various items examined, ; $ , adopted for quartermaster's department, . _naval._--_appropriation for finishing three frigates_, considered, ; so far as they go, three frigates give stability and protection to commerce, ; will save more than five times their cost, ; treaty or ships are the two things before us, ; motion to connect a bill for manning and equipping, ; this form of _tacking_ very improper, ; constitutionality of the appropriation, ; question on the connection of the two bills, ; question of tacking the two bills carried, ; appropriation resolved, . _pay and subsistence_ of three naval captains, considered, ; $ , the estimate--$ , appropriated, . _moved to appropriate_ $ , for finishing three frigates, ; smaller sum sufficient to secure them from injury, as it was the intention not to fit them for sea and save expense of manning them, ; no prospect of manning them at present high rate of wages, ; all appropriations are now specific and particular, ; this sum is for finishing only, ; if the frigates are not to be used, they should be sold at once, ; many members intend to keep the frigates in such a state as to prevent their being manned, ; a question whether we shall have a navy or not involved in this discussion, ; presidential discretion as proved by the past, ; if this money is voted the frigates will get to sea under some pretext, ; if the frigates are not finished the money expended will be lost, ; if they are finished members fear they will be manned, ; members who oppose finishing the frigates, think this country will never be a naval power, ; its necessity will soon appear, ; our commerce is now only less than that of great britain, ; last year it was voted to finish the frigates--how can the house withhold the appropriation?, ; if this body is a legislature, how can its control over the public purse be denied?, ; further debated, ; question carried, , . _specific appropriations._--moved to add to the bill the words, "which several sums shall be solely applied to the objects for which they are appropriated," ; appropriations for some objects might fall short and others overrun, ; this surplus should be used for deficiencies, ; the military appropriation regarded as an aggregate for all the objects of the establishment, ; theory good but the practice may be bad, ; the practice of the secretary, ; motion carried, ; bill returned to the house from the senate with an amendment to remove the restriction to confine the expenditure to the specific objects for which each sum is appropriated, ; not according to law as required by the constitution to appropriate money for one object and expend it for another, ; the house has a constitutional power to depart from identifying articles to the sums appropriated, ; the mode of the senate gives too unbounded power to the executive, ; only four hours remain of the session--the bill may be lost, ; to allow the executive this power is an infringement of the constitution, ; the amendment of the senate lessens the privileges of the house, ; further debate, ; amendment lost, ; senate recedes, ; a proposition for $ , to complete the frigates, ; only two arguments in favor of the bill, viz. to lay the foundation for a navy, and the frigates being built, it is proper to man them, ; if navies are necessary to european nations they are not to us--as a view of our revenue and the expense of a fleet prove, ; revenue and expense examined, ; reasons for the extra expense, ; commerce will be carried on if we have no expensive naval force, ; a navy a great evil to this country, our interests lie in the soil, ; shall we at a time when we are threatened with danger abandon these frigates, ; further debate, ; bill passed, . _resolution for a committee of inquiry relative to expenditure of naval appropriations_, ; such a committee unusual, ; implies censure on public officers, ; no statements yet received, ; inquiry occasioned because a further appropriation called for, ; if money has been justly expended for the frigates little objection would arise to further appropriations, ; the expense has exceeded all belief, ; objections to the inquiry considered, ; reasons for the inquiry, ; such an inquiry always proper, ; if favorable, it will forward the design of creating a navy, ; different estimates which have been made to the house, ; further debate, . _see defensive measures._ _see appropriations_, index, vol. . archer, john, representative from maryland, , . _armed vessels_, instructions to, _see defensive measures_. _army establishment_, bill to fix, returned with the president's veto, debated, . _augmentation of army_ bill, details of, ; second reading ordered, . _reduction of army_, remarks on, . _peace establishment_, bill to fix, considered, ; various amendments proposed, ; better than former bill, and saves expense, ; other considerations, . _army, provisional._--_see defensive measures._ _army._--_see index_, vol. . _aurora_ newspaper, investigation in senate relative to, . b bacon, john, representative from massachusetts, , ; on the apportionment bill, ; relative to state balances, ; on ohio state government, ; on reading the letter of mchenry, ; on call for information relative to cession of louisiana, ; on compensation to the ex-united states judges, ; on jurisdiction over the district of columbia, . baer, george, jr., representative from maryland, , , , , . bailey, theodorus, representative from new york, , , , , . _see index_, vol. . baldwin, abraham, representative from georgia, , , , ; on a national university, ; on relief to sufferers by fire at savannah, ; on petition of hugh l. white, ; on contingent expenses of congress, ; on answer of house to president adams' first message, ; on building frigates, ; on foreign intercourse, ; on the limits of georgia, ; on relations with france, ; on the bill to raise a provisional army, ; on letters of marque, ; on the remonstrance of georgia, ; on disputed presidential elections, ; senator from georgia, , , , ; elected president _pro tem._ of senate, . _see index_, vol. . _bank of the united states._--_see index_, vol. . _bankruptcy_, bill to establish uniform system of, passed house, . _bankrupt act_, should not be amended but repealed, ; _ex post facto_ law, ; some objectionable features should be amended, ; never should have been such a law, ; other considerations in favor of amendment, ; constitution does not give power to impair contracts, ; the person may be exonerated but not the property, ; further debate, . _barbary powers_, resolution authorizing the president further and more effectually to provide for protecting commerce against the, considered, ; moved to strike out words "further and more," ; if adopted in present form we pledge ourselves to increase the naval force, ; the words relate to the measures proposed, ; it went only to authorize the president without any pledges, ; we pledge ourselves to extend more protection without inquiring into its necessity, ; force enough at present, ; further discussion, ; amendment lost, ; original motion carried, . bard, david, representative from pennsylvania, , , , . barras, president of french directory, his speech to the american minister, . bartlett, bailey, representative from massachusetts, , . bayard, james a., representative from delaware, , , , , , ; on the quakers' memorial, ; on foreign intercourse, ; on relations with france, ; on presents to ministers by foreign courts, , ; on taking new census before laying direct tax, ; on presents to ministers, ; on admission to citizenship, ; on bill relative to treatment of alien enemies, , ; on abrogation of treaty with france, ; on the expulsion of matthew lyon, , ; on the case of jonathan robbins, , , , , ; on the bill prohibiting the slave trade, ; on repeal of internal taxes, , ; on georgia limits, , ; on army reduction, ; on judiciary resolutions, ; on the mediterranean trade, ; on the collection of internal revenues, ; on state balances, , ; against repeal of judiciary establishment, ; in favor of relief for french spoliations, , ; on ohio state government, , , ; against discharge of the committee relative to cession of louisiana, ; on amendment to the bankrupt act, ; on taking up resolution relative to french spoliations, , ; on jurisdiction over the district of columbia, . beckley, john, chosen clerk of house, . benton, lemuel, representative from south carolina, . _see index_, vol. . bingham, william, senator from pennsylvania, , , , , , ; elected president _pro tem._ of senate, . _see index_, vol. . bird, john, representative from new york, , ; against the mausoleum to washington, ; on jurisdiction over district of columbia, - . bishop, phanuel, representative of massachusetts, , , , . blodget, samuel, memorial relative to a national university, . bloodworth, timothy, senator from n. carolina, , , , , ; on breach of privilege, . _see index_, vol. . blount, thomas, representative from north carolina, , , , ; on the petition of manumitted slaves, , ; moves thanks to the speaker at close of th congress, . blount, william, senator from tennessee, , ; to provide further naval force, ; on the quakers' memorial, , . _see index_, vol. . boude, thomas, representative from pennsylvania, , . bowie, walter, representative from maryland, , . brace, jonathan, representative from connecticut, , ; on intercourse with france, . bradbury, theophilus, representative from massachusetts, , . _see index_, vol. . bradford, william, senator from rhode island, , ; chosen president _pro tem._ of the senate, ; resigns, as senator from rhode island, . _see index_, vol. . bradley, stephen r., senator from vermont, , ; elected president _pro tem._ of the senate, . _see index_, vol. . _breach of privilege._--case of matthew lyon, ; case stated, ; resolution of expulsion referred, ; letter from lyon, ; report of committee on privileges, ; motion to postpone carried, ; question of hearing the evidence in committee or before the house discussed, ; in committee, carried, ; _note_, relative to the evidence, ; motion of expulsion lost, ; resolution to expel griswold and lyon, ; motion to postpone, ; no reason for delay, ; neither the dignity, honor, nor peace of the house can be preserved while these members remain in it, ; the innocent should not be punished with the guilty; lyon passive throughout, ; the business should be taken up with despatch, ; motion to refer to committee on privilege, with leave to sit during the session, carried, ; motion to report in writing, carried, ; motion that both pledge their words to the house to keep the peace, carried, ; how to be executed, discussed, ; pledge given, ; report of committee on privilege, ; debate on the report, ; resolution of expulsion disagreed to, ; resolution of reprimand adopted, . _resolution in the senate_ relative to publications in a certain paper, considered, ; what powers has the senate in this matter?, ; can it define the crime and sit as judges?, ; it had better be given up, ; what are the privileges of congress, and how far are they defined by the constitution, examined at length, ; should the privileges of the parliament of great britain be those of congress?, ; privilege limited to what is necessary and nothing more, ; with respect to libels, ; liberty of the press applied to these defined privileges, ; principle of the law of libel, ; apprehensions of government from the press, ; object of open doors, ; how far in case of libels shall either branch of government have power to decide in what affects the liberty of the citizen?, ; only course to get rid of the subject, ; further debate, , ; amendment proposed, ; resolution passed, ; report of committee considered, ; report as adopted, ; form of proceedings reported, ; proceedings in the case of william duane, , , . breckenridge, john, senator from kentucky, , ; moves repeal of judiciary establishment, ; on repeal of judiciary establishment, . brent, richard, representative from virginia, , , , , ; on a direct tax on slaves, ; on naval appropriations, ; on the bill relative to the protection of commerce, . brooks, david, representative from new york, , , ; on relations with france, ; on exempting bank notes from stamp duty, , . brown, john, senator from kentucky, , , , , , , , ; on disputed presidential elections, . _see index_, vol. . brown, john, representative from rhode island, , ; on petition of free blacks, ; on the bill to prohibit carrying on the slave trade, ; for a mausoleum to washington, . brown, robert, representative from pennsylvania, , , , , . bryan, nathan, representative from north carolina, , , ; decease of, ; _note_, . _see index_, vol. . buck, daniel, representative from vermont, ; on bill to increase compensation of president, and other officers, ; on increase of duties on sugar, , ; on the accommodation of the president, ; on liberation of la fayette, . _see index_, vol. . bullock, stephen, representative from massachusetts, , , . burgess, dempsey, representative from north carolina, , . _see index_, vol. . burr, aaron, senator from new york, ; vote for, as president in , ; vote for, as president, ; notification of his election as vice president, ; vice president in senate, . _see index_, vol. . butler, william, representative from north carolina, , . c cabell, samuel j., representative from virginia, , , , , , . _see index_, vol. . calbert, george, petition of, . campbell, john, representative from maryland, , . canadian refugees.--resolution to appropriate certain lands on the miami, as compensation to refugees from british provinces, debated, ; unnecessary to state now the location of the land, ; general resolutions to grant land, adopted, ; resolutions to grant five hundred acres to each, considered, ; improper to grant equal quantity to each, ; some have suffered more than others, ; resolution lost, ; senate bill considered, ; amendments rejected, ; senate adhere, ; bill postponed, . cantrill, stephen, petition of, . carpenter, thomas, petition to house relative to debates, ; memorial to house relative to reporting debates, . _census of the union._--_see index_, vol. . champlin, christopher g., representative from rhode island, , , , ; moves vote of thanks, ; in favor of admirals in the navy, ; for a mausoleum to washington, , . _charitable objects_, appropriations by congress for, _see index_, _vol. _. chapman, john, representative from pennsylvania, , , , . chapman, nathaniel, senator from vermont, , , , . _chickasaw claims_, petition relative to, . christie, gabriel, representative from maryland, , , ; on the petition of manumitted slaves, ; on increase of duties on sugar, ; on petition of free blacks, . _see index_, vol. . claiborne, thomas, representative from virginia, , , , , , ; on relief to sufferers by fire at savannah, , ; on a direct tax on slaves, ; on increase of duties on sugar, ; on liberation of la fayette, ; on expatriation, ; on establishing the navy department, ; on admirals in the navy, ; on trade with the indians, ; _note_, ; against a mausoleum to washington, , ; on georgia limits, . _see index_, vol. . claiborne, william c. c., representative from tennessee, , , , ; on the claims of stephen cantrill, ; on presents to ministers by foreign courts, , ; on admission of aliens to citizenship, ; on intercourse with france, ; on letters of marque, ; on direct taxes, , . clay, matthew, representative from virginia, , , , , , . clayton, joshua, senator from maryland, ; clergy, pay of, in massachusetts, . clinton, george, vote for, as president in , . clopton, john, representative from virginia, , , , , , . _see index_, vol. . _closed doors, or open doors_, on the cession of louisiana, discussion relative to, . cochran, james, representative from new york, , , ; on tax on lawyers, . cod fisheries.--proviso offered against further increase of bounties, . _see index_, vol. . coit, joshua, representative from connecticut, , , ; on kidnapping negroes, ; moves to postpone, ; on petition of hugh l. white, ; on a direct tax on slaves, ; on the purchase of a site for a navy yard, ; on naval appropriation, ; on answer of house to president adams first message, ; on tax on lawyers, ; on exempting bank notes from stamp duty, , ; on publication of the debates, . _see index_, vol. . coles, isaac, representative from virginia, . colhoun, james lewis, senator from south carolina, . _collectors of revenue_, bill for, compensation of, considered, . _commerce, depredations on_, message of president on, ; report of secretary of treasury on, . _commerce_, protection of, _see defensive measures_. _commerce of united states_.--_see index_, vol. . _committee_, to wait on the president relative to answer to his message, ; on memorial of quakers, ; on resolution to expel matthew lyon, ; on privileges, ; on provisions for determining legality or illegality of votes for president in the states, ; to report suitable measures on death of washington, ; of house, . _compensation of president, vice president, and other officers._--bill from the senate to increase president's salary $ , vice president's $ , senators', representatives' and various other officers' per cent., ; debate on commitment to committee of the whole, ; provision should be made for the expense of removing to the new federal city and the purchase of new furniture for the president, but not by increase of salary, ; expense of removal can be made up hereafter, ; new furniture every four or eight years too extravagant, ; salaries sufficiently high, ; better advance the salary and let the president purchase the furniture, ; true question is, whether it be right and just to augment the salaries, or whether they are adequate and just for the sacrifices made by the officers in undertaking the business of government, ; the expenses of the first president amounted to the whole sum allowed, ; can other presidents be expected to give their services? ; such is also the case with other officers of the government, ; the practice of the individual states warrants an advance, ; what occurred in holland, ; motion to strike out first section relative to president and vice president, carried, . _see index_, vol. . condit, john, representative from new jersey, , , , . condy, jonathan w., elected clerk of house, . _congress_, fourth, second session, commenced, ; closes with washington's administration, ; fifth, first session commences may , , ; extra session, ; first session, fifth congress, adjournment postponed, ; adjourns, ; _note_ on, ; extra session, objects of _note_, ; second session, fifth congress, meets nov. , , ; fifth, second session, adjourns, ; fifth, third session, commenced, ; fifth, third session, adjourns, ; fifth, _note_, ; sixth, first session, ; bill for fixing time and place of meeting, ; adjournment first session, sixth congress, ; first meeting at washington, ; seventh, first session, senate, ; adjournment first session, seventh congress, ; meeting of second session, seventh congress, ; adjourns, . _connecticut_, vote for president, , . _contested elections._--_see index_, vol. . _contingent expenses_ of congress, ; manner of acting upon them, . _convention_ with french republic ratified by senate, . cooke, william, senator from tennessee, , , , , , ; on breach of privilege, , ; on the repeal of the judiciary establishment, . _see index_, vol. . cooper, william, representative from new york, , , ; on relief to sufferers by fire at savannah, ; on increase of duties on sugar, . _see index_, vol. . cooper, thomas, petition of, . count de grasse, report on petition of daughters of, ; bill granting annuity to daughters of, considered, ; $ per year for each daughter proposed, ; a serious sum, in five years amounting to $ , , ; this sum no consideration for the risk and responsibility the count took of remaining in the chesapeake in defiance of order, ; _note_, ; ten times that sum would have been paid if asked then, ; livelihood of other families, ; $ allowed, . craik, william, representative from maryland, , , , , , ; on a national university, , ; on petition of hugh l. white, ; on military appropriations, ; on restricting aliens from citizenship, ; on the case of jonathan robbins, ; on jurisdiction over district of columbia, ; on bill relative to district of columbia, . _credentials of members_, report of committee on, . cutler, manasseh, representative from massachusetts, , . cutts, richard, representative from massachusetts, , . d dana, samuel w., representative from connecticut, , , , , , , ; on the report on the griswold and lyon case, ; on relations with france, ; on a provisional army, ; on the resolutions granting letters of marque, ; on the sedition bill, ; on the abrogation of the treaty with france, , ; on the capture of french vessels, ; on the law of retaliation, ; on petition of free blacks, , ; on the case of jonathan robbins, , , ; on georgia limits, ; on repeal of internal taxes, ; on reducing duties on imports, ; relative to state balances, ; against repeal of judiciary establishment, ; in favor of relief for french spoliations, , ; on call for papers relative to cession of louisiana, , , , , ; on petition of united states judges for compensation, , . davenport, franklin, representative from new jersey, , , . davenport, john, representative from connecticut, , , , , , . davis, thomas t., representative from kentucky, , , , ; on the case of griswold and lyon, ; on the report on the griswold and lyon case, ; relative to letters of marque, ; on direct taxes, , ; on the case of jonathan robbins, , ; on reporting the debates, ; on georgia limits, ; on call for papers relative to cession of louisiana, ; on granting land warrants to lafayette, . dawson, john, representative from virginia, , , , , , ; on the claim of general kosciusko, , ; on the bill to repeal a part of the sedition act, ; on call for information relative to cession of louisiana, ; on postponing french spoliations, ; on granting land warrants to lafayette, . dayton, jonathan, representative from new jersey, , , , ; on the address to the president, , , ; on land for canadian refugees, ; offers resolution relative to land for canadian refugees, ; on liability of united states to a state for war expenses, , ; on increase of duties on sugar, ; on suability of the states, ; answer to vote of thanks of the house, ; chosen speaker, first session, th congress, ; returns thanks, ; on defensive measures, ; on exempting bank notes from stamp duty, , ; on relations with france, ; on a new census for direct taxes, ; acknowledges thanks of house as speaker, ; senator from new jersey, , , , ; on breach of privilege, ; on the right of the united states to the free navigation of the mississippi, . _see index_, vol. . dearborn, henry, representative from massachusetts, ; on increase of duties on sugar, ; on military and naval appropriations, ; on naval appropriations, . _see index_, vol. . _debates, reporting of the_, report on petition relative to, considered, ; what would be the expense?, ; about $ , per session, ; this attempt would be of great use to the house, ; why give one a privilege more than another, ; no one to have preference?, ; no need of expense, ; more useful than to take so many newspapers, ; further debate, ; the book will be published whether the house adopt it or not, ; shall the debates be under the sanction of the house or not?, ; it will encourage the undertaking, and add to the stock of information, ; petition of thomas carpenter, ; reference objected to, ; house had often refused to have any thing to do with the publication of the debates, ; petition referred, ; memorial of reporters for accommodation, considered, ; statement of the speaker, relative to his proceedings, ; importance of having the debates taken with fidelity, ; further debate, ; referred to a committee, ; report of committee against any action, ; importance to the people of a knowledge of the merits of acts and reasons for our conduct, ; uniform practice, ; two objections considered, ; shall an admission of a reporter take place independent of the speaker, or shall he decide on its propriety?, ; further debate, ; objected that it will be against precedent, prevent members from having room, and a possibility the speaker may indulge stenographers, ; considered, ; the only question is, whether the house shall persevere in the old plan, ; further debate, , , ; report adopted, . _in senate_, application for permission to report debates of, ; resolution, proceedings thereon, ; permission granted, . _in house_, resolution offered that speaker assign place to stenographers, ; the question is, under what authority they shall be admitted, ; facts relative to this view, ; improper to come to any solemn decision, ; important that the debates of the house should be taken with accuracy, and published without fear, ; amended resolution carried, . _defensive measures._--a series of resolutions considered, ; proposition to make further provision for forts offered now only as a subject for inquiry, ; usefulness of this system of fortification doubtful, ; this country may be drawn into a vortex of war and should be prepared, ; resolution adopted, . _completing and manning frigates._--abstract principle first to be decided, ; shall the frigates be manned?, ; motion to strike out word "manning," ; lost, ; resolution adopted, . _to procure further naval force_, considered, ; it might be used for convoys, ; _note_, ; impolitic to adopt the measure, ; cost will not amount to tenth part of loss by captures, ; resolution agreed to, . _arming merchant vessels_, considered, ; merchantmen are now arming, and it is necessary to regulate the business, ; what is to be done with these vessels?, ; if they act offensively it will lead to war, ; does the law of nations permit merchant vessels of neutral nations to arm?, ; the public defence intrusted to government, ; only exception in the case of letters of marque, ; in any other case war has always followed, ; further debate, ; resolution lost, ; further debate on resolution authorizing president to provide naval force when circumstances shall require, . _bill from senate authorizing president to raise an army of_ , men, question on its second reading, ; not necessary to pass such a bill under any possible modification, ; if an army is necessary, the legislature ought to raise it, ; no necessity for this measure at this session, ; disgraceful to reject this bill without a second reading, ; this course prescribed by the rules of the house, ; what does a provisional army mean?, ; this bill declares the power to raise an army in the president, the constitution places it in congress, ; why not clothe the president with power to raise taxes, ; it is the same in principle as authorizing the raising of an army and giving to the president power to suspend the raising, if necessary, ; a manner of proceeding very objectionable, ; unprecedented measure to reject a bill on its first reading, which contains such a variety of propositions, ; intention to destroy the bill, ; were troops ever raised in a different manner?, ; expediency of the measure considered, ; what is our external situation?, ; this motion neither unprecedented nor improper, ; in principle the army should not be raised until the house think it necessary, ; objections arise because it is thought the militia will be sufficient for defence, ; further considerations, ; the bill delegates legislative power to the president; objectionable as it respects volunteer corps, ; this motion appears like indifference when the people expect effective measures, ; extraordinary arguments used, ; this bill sufficient to alarm the house, ; the opposition does not arise from a determination to oppose defensive measures, ; opposition to second reading, withdrawn, ; every aid resorted to for pushing forward the scheme of a standing army, ; southern states to be terrified, ; invidious distinctions drawn between the militia and regulars, ; review of services of southern militia, ; motion lost to strike out , , ; motion to insert , , ; when peace occurs between france and england, the question of preparation for war should be determined, and the president should have the power during recess of congress, ; motion carried, ; matter of training and disciplining given to the states, ; amount of appropriation considered, ; call of the house, _note_, ; bill passed, . _alien enemies_, bill respecting, considered in committee, ; its provisions, ; too much power to consider president's proclamation as law, ; various amendments proposed, ; debate on, ; seven years proposed as extreme limit of imprisonment of offenders, ; debate on the punishment of harboring offenders, ; crime may amount to high treason, ; it is not a bill to punish crimes, but to provide for the public safety in certain cases, ; in case of war with france, all her citizens here would be alien enemies, ; only three practicable modes present themselves on this subject, ; these considered, ; ordered to third reading, ; motion to recommit so far as relates to power conferred on the president, ; it is grounded on the principle that the president shall have power to do by proclamation what ought only to be done by law, ; this point considered, ; bill recommitted, ; bill reported with modifications, ; senate bill, . _instructions to armed vessels, report on_, considered, ; motion to make the order for "to-morrow," ; our vessels are seized by french cruisers every day, and decision required, ; report just made, time should be given, ; further debate on the necessity for immediate action, ; copy of the bill, ; motion to make it applicable to all nations, ; this bill a declaration of war, ; bad as our situation is, it is preferable to a state of war, ; further arguments in favor of making the bill general, ; propriety and justness of the bill, ; vigorous measures called for, ; objects of france, ; to incense our foes only aggravates our misfortunes, ; our treaties with great britain and spain, ; question negatived, ; bill going to third reading, ; reason for dissent, ; ordered, ; debate on the day for the passage of the bill, ; do. passed, . _marine corps, proposal to organize_, ; debate thereon, ; agreed to, . _letters of marque_, resolutions relative to, considered, ; motion to refer to a committee to report a bill, ; this course will shut out all hopes of a favorable termination of the dispute, ; return of commissioners, ; great difference between committing and agreeing to adopt a resolution, ; negotiations not in a good train unless we pay the tribute france demands, ; should be acted upon at once, otherwise the foreign nations will have notice to seize our vessels, ; the reference will look like a challenge, ; no good to be derived from a vote on this subject, ; prospects of the negotiation, ; all has been done for the defence of commerce which we can conveniently do, why then proceed to extreme measures?, ; no good purpose answered by postponement of the resolutions, ; this contrasted with former propositions, ; congress has acted with promptitude without taking this measure, ; what measures have been adopted?, ; nothing to expect from france without tribute, ; question negatived, ; postponement for two weeks moved, ; debate, ; carried, . _bill to encourage the capture of french armed vessels_ by vessels of citizens of united states, read third time, ; a bounty on guns brought in, according to their size, ; of no use, ; bill passed, ; resolution for a bounty offered, ; negatived, ; similar bill negatived at previous session again considered, ; carried in committee, ; in house, on striking out first section, debate, ; manner of evading laws for suspending intercourse explained, ; present and former situation of the country, ; bill may lead to difficulties, ; bill of questionable advantage as regards privateers, ; strengthen our minister, ; further debate on propriety of the measure, , ; effect of measures of two last sessions, ; further debate on, ; bill rejected, . _power of retaliation, bill vesting_ in the president, considered, ; nature of the bill, ; gives president power of life and death over every frenchman in the country, ; three arguments used for the bill, ; these considered, ; further debate, , , ; bill passed, . _delaware_, vote for president, , . _delegates_ from territories, _see index_, vol. . dennis, john, representative from maryland, , , , , , ; on tax on lawyers, ; on weekly license to distillers, ; on petition of free blacks, ; on jurisdiction over district of columbia, ; on the apportionment bill, ; against abolishing the mint, ; on jurisdiction over the district of columbia, . dent, george, representative from maryland, , , , , , ; on compensation of president and other officers, ; presides in committee of whole house, , , ; presides in committee of whole, , ; on the law of retaliation, . _see index_, vol. . _despatches_ of american ministers at paris, _see france_, relations with. dexter, samuel, senator from massachusetts, ; on disputed presidential elections, . _see index_, vol. . dickson, joseph, representative from n. carolina, , . dickson, william, representative from tennessee, , . _diplomatic or foreign intercourse_, considered, ; various sums proposed to fill the blanks, ; a good time to bring back the establishment of a diplomatic corps to the footing settled at the outset of our government, ; tendency of our government to consolidation in the executive, ; legislature must resist, ; this extension of influence of one department over another guarded in the constitution, ; more beneficial to have no ministers at all, ; object of motion to reduce this department, ; its former state, ; this no new doctrine, ; danger of executive influence has always been held up, ; these doctrines are advanced because the views of the gentlemen are opposed by the measures of the government, ; appropriations made, ; a small faction exists who wish to demolish the government, ; our foreign political intercourse in distinction from commercial intercourse, the subject to be considered, ; what has been done hitherto, ; our political intercourse greatly extended and from this comes the present crisis, ; the constitution and laws have made certain offices necessary and left it to the executive to fill them, and shall the house attempt to control this discretion?, ; propriety of removing persons of opposite political sentiments, ; has the legislature nothing to do with the diplomatic establishment but to provide the money?, ; origin of the law, ; progress of our diplomatic intercourse, ; necessary at this time that our ministers should remain as they are, ; thus to change it would be forcing upon the executive a measure contrary to his wishes, ; object of the bill to limit extension of executive power, ; the legislature can only settle the salaries of ministers and not determine their number, &c., ; the motion reduces the number and salaries of ministers, as unnecessary, but the executive thinks otherwise, ; the constitutionality, the expediency, and the inconvenience of the measure considered, ; further debate, ; _note_, ; discussion on filling the blanks, . _direct tax law._--difficulty of commissioners in pennsylvania, . _see taxes._ _disbursement of public moneys_, report of committee considered, ; four navy yards were purchased without authority, and the money misapplied which was paid for them, ; facts which gave rise to the purchase, ; the law which directs a thing to be done authorizes the agents to do every thing necessary for accomplishing the object, ; letter of the secretary explains the purchase, ; report does not notice some extensive stores erected by the present administration, ; a doubtful expenditure the minority think, ; proceedings of committee relative to the navy yards, ; secretary's letter was addressed to committee and not to the house, hence it was not inserted in the report, ; the purchase of the yards, ; explanation, ; further explanation, . _distilled spirits._--_see taxes._ _district of columbia_, bill in relation to, considered, ; moved to strike out first section, continuing in force law of maryland and virginia, in respective portions, ; question if the existing laws are in force, and this bill to obviate all doubt, ; jurisdiction a power that may or may not be exercised by congress, ; design of bill to cure evil arising from doubtful jurisdiction of maryland and virginia, ; a difference of opinion seemed to exist as to the period when the powers of the states were superseded, ; dilemma of the inhabitants, ; construction contended for will disfranchise them, ; reasons for the committee rising, ; further debate, ; motion to postpone the bill, ; object to try the sense of the house, whether they were determined to assume the jurisdiction or not, ; passage of the bill will deprive the citizens of their political, if not civil rights, ; the people of the district ask the house to assume the jurisdiction, ; to refuse it would be to insult them, ; views of the inhabitants, ; quarter from whence the opposition comes, ; by the act jurisdiction commences with the occupation, ; laws of the states in force until otherwise enacted by congress, ; the legislature will not be satisfied without assuming the jurisdiction, ; do members still wish to leave the subject in doubt?, ; motion to postpone withdrawn, ; moved to strike out first section, ; impossible to preserve the rights of the people by the passage of the bill, ; their judges and governor will be the choice of the president, ; interests of the people require the passage of the bill, ; no necessity at present for the law, ; other considerations, ; details of the bill, examined, ; motion negatived, ; other amendments proposed, ; bill reported for territorial government, ; referred, ; remonstrance, ; resolutions on the retrocessions of jurisdiction to virginia and maryland, ; restore the people to their former condition, ; no advantage to retain the jurisdiction, ; its exercise will take up a great deal of time and great expense, ; it was prudent not to change until experience proved its inconvenience, ; all the advantages of exclusive jurisdiction will be lost by the passage of the resolution, ; no constitutional power exists enabling congress to recede the territory, ; if receded, what obligation is there in congress to remain here?, ; the contract can be done away only by the unanimous consent of all the parties, ; if we had power to accept, we had power to recede, ; congress possess the right with the assent of these two states to recede, ; constitutional points considered, ; further debate, ; resolutions lost, ; _note_, . duane, william, proceedings against, in senate, , , ; letter to senate, . _dumb legislature, a_, . _duties on imports_, proposition to increase duties, considered, . _brown sugar_, an eligible article for increased duty, ; its consumption not to be decreased, ; falls more upon the poor than on the rich, ; rise of labor must follow increase of duty on it, ; present duty one and a half cent per pound, an additional half cent not much difference to consumer, ; a necessary of life, already too high, ; moved to amend by one cent per gallon to molasses, ; only way to secure duty on sugar was by advancing duty on molasses, ; one advance on sugar will pave the way for others, ; amendment moved to defeat increased duty, ; amendment carried, ; amended motion carried, . _salt_, additional duty of five cents moved, ; at a lower rate of duty now than in other countries, ; duty not easily evaded, ; tax laid heavily on salt because of all necessaries this most easily collected, ; operates as a poll tax, ; a tax on agriculture, ; article high now, ; an unequal and odious tax, ; objections would be good if it was proposed to raise the whole revenue from it, or substitute it for a land tax, ; the high price not occasioned by a duty, ; question lost, ; eight cents adopted in committee, ; salt tax as compared with license and stamp tax, ; _note_, ; a salt tax the most unequal tax in its operation, ; oppressive to certain parts of the union and no way affecting others, ; amendment with regard to drawback proposed, ; debate thereon, ; this small advance cannot operate oppressively, ; shall this necessary of life be called on for every thing government wants?, ; discontent already arisen, ; question decided in affirmative, ; motion to strike out all relating to drawback to fishing vessels, ; the amount allowed is too large, ; debate thereon, ; motion lost, ; - / per cent. fixed, ; limitation clause for two years adopted, ; bill passed, . _in committee_--twenty per cent. additional duty on wine adopted, ; two and a half per centum on all merchandise subject to ten per cent. duty adopted, ; additional duty of one and a half per cent. on brown sugar rejected, ; two and a half per cent. drawback allowed additional on all re-exports, ; resolution instructing committee on ways and means to report on propriety of reducing duties on certain articles, considered, ; articles of first necessity and paid highest duty, ; certain members have pledged themselves for repealing all internal taxes, ; further remarks, question lost, . _see index_, vol. . _duties on tonnage._--_see index_, vol. . _duties, stamp_, on vellum parchment and paper, bill for . _see taxes, direct and indirect._ e early, peter, representative from georgia, . edmond, william, representative from connecticut, , , , ; on the quakers' memorial, ; on abrogation of the treaty with france, ; on the law of retaliation, ; on petition of free blacks, . eggleston, joseph, representative from virginia, , , . ege, george, representative from pennsylvania, . _elections_, military interference with, . _elections presidential_, disputed, _see president's election disputed_. _election of president._--house and senate proceedings, , ; do. proceedings of the house as prescribed by constitution, ; repeated ballotings, , , ; thomas jefferson elected, ; _note_, . _electors_ of president, _see index_, vol. . ellery, christopher, senator from rhode island, , . ellsworth, oliver, vote for, as president, , . elmendorph, lucas, representative from new york, , , , , , , . elmer, ebenezer, representative from new jersey, , . _enemies, alien._--_see alien enemies._ _estimate for appropriations_, for treaty with cherokees, ; on a monument for washington, . eustis, william, representative from massachusetts, , ; on protection against the barbary powers, ; on repeal of internal taxes, ; in favor of relief for french spoliations, ; on compensation to the ex-united states judges, ; on french spoliations, ; on jurisdiction over the district of columbia, . evans, thomas, representative from virginia, , , , , . _executive departments._--_see index_, vol. . _expatriation._--a bill prohibiting citizens of the united states from entering any foreign military or naval service, considered, ; motion to strike out section defining mode by which a citizen of the united states may dissolve ties of citizenship and become alien, ; principle wrong, especially at this time, ; men have a natural right to choose under what government they will live, ; the right of expatriation should be allowed unclogged, ; a man born and educated in a country owes obligations not easily shaken off, ; doctrine of perpetual allegiance derived from great britain; bad in practice, ; expatriation the opinion of the country, and now the time to declare it, ; objections considered, ; further debate, ; if a right of expatriation exists, there should be some mode of exercising it, ; the case of talbot, ; perpetual allegiance absurd, ; right recognized by executive and judiciary, ; unnecessary to consider it, ; motion to agree to report lost, ; further consideration postponed, . f fearing, paul, representative from n. w. territory, , ; on ohio state government, , , ; unseated as delegate from territory of ohio, . findlay, william, representative from pennsylvania, , , ; on increase of duties on sugar, ; on increase of duties on salt, ; on temporary direct tax, . _see index_, vol. . _flag of the united states._--_see index_, vol. . foster, abiel, representative from new hampshire, , , , , , , , . _see index_, vol. . foster, dwight, representative from massachusetts, , , , , ; presents petition of thomas carpenter, ; on temporary direct tax, ; senator from massachusetts, , , . _see index_, vol. . foster, theodore, senator from rhode island, , , , , , , , . _see index_, vol. . fowler, john, representative from kentucky, , , , , . _france, relations with._--president's message considered, ; painful differences exist between this country and the french republic, ; the house should declare whether we are to have peace or war, ; resolutions that it is inexpedient to go to war with france--that the arming of merchant vessels should be restricted--that provision should be made for protection of the sea-coast and interior, offered, ; not a suitable time for a declaration of sentiment of first resolutions, ; our situation better than it was twenty-three years ago, ; verbal amendments proposed, ; intention of the resolution, ; now is the time to declare whether the country shall remain at peace or go to war, ; the state of things calls for this declaration, ; legislature should determine whether they immediately mean to go to war or not, ; defensive war always ready to undertake, ; though we value peace, we are ready to resist insult and injury, ; extent of defensive measures should now be decided on, ; proceedings of france amount to a declaration, ; to say we are not at war is no more than to say it is light when the sun shines, ; to agree to the proposition would countenance the french assertion that we are a divided people, ; the time has come when a stand should be made, ; review of the past, ; arguments in favor considered, ; arguments of opposers examined, ; the question very unimportant, ; important time lost in discussing it, ; it is a question of peace or war, ; to strike out words "french republic" proposed, ; resolution unnecessary and uncommon, ; this country is now the passive party, and any declaration on our part would have little effect, ; our course with great britain, ; the course of france, ; instance of venice, ; ready to engage in a defensive but not offensive war, ; a disposition on the part of the house and government for war, ; apprehension of war already produced effects in some parts of the country, ; the resistance to the amendment shows the intention is to say to france, "you may commit against us injury after injury, we will not resent it," ; peace and war are not in our power, ; the movers of amendment exposed, ; their intentions abject submission to france, ; those now so loud for peace, heretofore supporters of war, shown, ; example of the swiss, ; reply to objections, , ; house obliged to act in the dark, ; effect of french decree, ; services of members as soldiers, ; further debate, ; treaty of pilnitz a forgery, ; further debate, ; resolution calling upon the president for papers, ; debate thereon, , ; subject postponed, . _commercial intercourse with france._--bill for suspending debate on its final passage, ; no reason has been assigned for this bill, ; effects of the bill, ; effects on french commerce, ; object to distress france and french west indies, ; its operation, ; objections examined, ; further debate, ; bill passed, . resolutions relative to relations with france, offered, . _bill to abrogate the treaty between france and the united states_, ; best to declare what is the state of the country, ; the proper question to be considered, ; bill from the senate not taken up, but resolution for a committee to report on the state of the country, ; debate on the reference, ; the resolution an unmeaning thing, ; question negatived, ; bill from senate again taken up and read, ; amendment moved and carried, relative to enacting clause, ; debate on amendments, ; is a violation of the treaties on the part of france sufficient ground for our setting them aside?, ; no proof that our claims have been refused, ; further explanation of views, ; preamble adopted and bill passed, . _bill suspending commercial intercourse_ with france returned amended by the senate to the house, motion to postpone, ; amendments considered, ; bill passed, . _bill to suspend intercourse with france and open it with st. domingo_, considered, ; section three, providing for intercourse with st. domingo, debated, ; strange proposition, ; our non-intercourse affects the mother country, and it is proposed to relax it by way of the colonies, ; or to negotiate with french agents in the colonies, and thus encourage rebellion and usurpation, ; these agents independent of the decrees of france, ; they may carry on commerce with this country even if at open war with france, ; statement of the relation of affairs, ; objects of this bill twofold, ; reason for the passage of the bill at the last session, ; weakness now to recede, ; measures proposed are justifiable only in a state of war, ; the question, ; various reasons for the section in the bill, , ; review of the relations between france and her colonies, ; _note_, ; advantages of commerce with hispaniola, ; this bill will authorize the president to negotiate with subordinate agents of a government against the will of that government, ; it might produce war, ; important considerations urged, ; this measure is not so obnoxious as to be considered by france a cause of war, ; consequences of the independence of st. domingo, ; the amendment changes the principle of the bill, ; examination of the effects of the amendment, ; if any part of the french dominions cease to depredate on our commerce, we might open intercourse with them, ; the ground upon which we stand, ; design of the amendment to take away the objection that the bill was calculated to promote independence of st. domingo, ; extent of the amendment, ; further debate, ; amendment negatived, ; amendment proposed relative to part of new orleans, ; bill passed, . french edict relative to neutrals; call for information respecting its suspension, ; answer of the president, ; motion to print discussed, . _despatches of american ministers._--_note_, as an appendix to debates of fifth congress, ; extract of a letter from mr. pinckney to the secretary of state, ; ditto to m. de la croix, ; report of major rutledge on the interview with m. de la croix, ; further report, ; notification from m. de la croix to general pinckney, ; reply of general pinckney, ; remarks of general pinckney, ; interview with talleyrand, ; proceedings of talleyrand's agents, , , , ; letter of general pinckney to the secretary of state, ; remarks on the disavowal of talleyrand, ; members of the directory, . franklin, jesse, representative from north carolina, ; senator from north carolina, , , . _see index_, vol. . freeman, jonathan, representative from new hampshire, , , , , ; on answer of house to president adams' first message, . freeman, nathaniel, jr., representative from massachusetts, , . _see index_, vol. . _french refugees._--_see index_, vol. . _french republic_, ratification of convention with, . _french spoliations._--resolution that provision be made for indemnification for losses sustained by french spoliations, considered, ; the principle must be decided by the house, ; the resolution so broad as to defeat its object, ; it goes to commit the house to the whole extent without any examination, ; reasons for speedy action, ; object of the resolution to place the question in a train for decision, ; it is founded on the principle that government has abandoned the claim, so that no citizen can come forward against the french government, or any french citizen, ; further debate, ; a large portion of the losses so covered by insurance, the government will not have to pay them, ; further debate, ; motion to postpone lost, ; report made, ; further remarks, ; resolution, ; amendments proposed, ; lost, ; discussion on calling yeas and nays on taking up for reference the original resolution, ; referred, ; a question of great moment, ; debate on postponement, , ; motion to take up, ; lost, . _friends or quakers_, memorial of, ; report on, . _frontiers, protection of._--_see index_, vol. . _fugitives from justice._--_see index_, vol. . _furniture_ for president's house, _see appropriations_. g gallatin, albert, representative from pennsylvania, , , , , ; on the address to the president, ; on a direct tax on slaves, , ; on naval policy, ; on increase of duties on sugar, , , ; on increase of duties on salt, ; on naval appropriations, ; on direct and indirect taxes, ; on limitation period relative to claims against united states, ; on suability of the states, ; on the accommodation of the president, ; on military and naval appropriations, , , , , ; on naval appropriations, , , ; proposes resolutions relative to statements from war department, ; on answer of house to president adams' first message, ; on resolutions relative to defensive measures, , ; on arming merchant vessels, ; on expatriation, ; on a naval armament, ; on exempting bank notes from stamp duty, , , ; proposes composition with banks in lieu of tax, ; on additional duty on salt, , ; offers proviso against increase in bounties to fishermen, ; on address to the president, ; on the quakers' memorial, ; against weekly licenses to distillers, ; on naval expenditure, ; on foreign intercourse, , ; on the report on the griswold and lyon case, , ; on the limits of georgia, ; on relations with france, ; on a provisional army, , ; on establishing the navy department, ; on military appropriations, , ; to postpone consideration of naturalization laws, ; on presents to ministers by foreign courts, ; on a temporary direct tax, ; on the classes to be excluded from citizenship, , ; on bill relative to treatment of alien enemies, , ; on the consideration of the bill relative to the protection of commerce, ; on intercourse with france, ; relative to letters of marque, ; on direct taxes, ; on alien enemies, ; on the sedition bill, ; on the abrogation of the treaty with france, , , ; on intercourse with france and st. domingo, , , ; on increase of the navy, ; on the capture of french vessels, ; on repeal of alien and sedition laws, ; on the expulsion of matthew lyon, ; on repeal of alien law, ; on the law of retaliation, ; on petition of free blacks, , ; on the case of jonathan robbins, , , . _see index_, vol. . gantt, rev. mr., elected chaplain to the senate, , . gates, proposal for a monument to, . _georgia_, vote for president, , . _georgia limits._--_see territories._ _georgia, remonstrance of_, report of committee on, ; compensation recommended, ; points of the remonstrance, ; comparative expenditure in defending northern and southern frontiers from depredations of indians, ; amended resolution proposed, ; carried, ; report on, . _german language, laws in_, motion to print, ; reason for the motion, ; if a translation was authorized, great mischiefs might ensue, . gerry, elbridge, letter from paris, .--_see index_, vol. gilbert, ezekiel, representative from new york, ; on the address to the president, ; on the petition of manumitted slaves, ; on military and naval appropriations, . _see index_, vol. . giles, wm. b., representative from virginia, , , ; on the address to the president, , , , , ; on relief to sufferers by fire at savannah, ; on answer of house to president adams' st message, , ; on resolution relative to defensive measures, , ; on expatriation, - ; on a naval armament, ; on tax on lawyers, ; on the griswold and lyon case, ; on the limits of georgia, ; on relations with france, , , , , , ; on protection against the barbary powers, ; on apportionment bill, ; on the mediterranean trade, ; in favor of repeal of judiciary establishment, ; on ohio state government, , , . _see index_, vol. . gillespie, james, representative from north carolina, , , . _see index_, vol. . gilman, nicholas, representative from new hampshire, . _see index_, vol. . glenn, henry, representative from new york, , , , , , . _see index_, vol. . goddard, calvin, representative from connecticut, , ; on call for information relative to cession of louisiana, , . goode, samuel, representative from virginia, ; on petition of free blacks, . goodhue, benjamin, senator from massachusetts, , , , , . _see index_, vol. . goodrich, chauncey, representative from connecticut, , , , , , ; on a direct tax on slaves, . _see index_, vol. . goodrich, elizur, representative from connecticut, , . gordon, william, representative from new hampshire, , , , ; on duties on naturalization certificates, ; on the quakers' memorial, ; against weekly licenses to distillers, ; on the georgia limits, , ; on abrogation of treaty with france, . gray, edwin, representative from virginia, , , . _great britain_, retaliatory measures upon, _see index_, vol. . green, ashbel, appointed chaplain to the house, . green, thomas m., delegate from mississippi territory, . greene, ray, senator from rhode island, , , ; resigns his seat in senate, . greenup, christopher, representative from kentucky, ; on land for canadian refugees, . _see index_, vol. . gregg, andrew, representative from pennsylvania, , , , , , , ; on jurisdiction over the district of columbia, . _see index_, vol. . griswold, roger, representative from connecticut, , , , , , , , ; on answer of house to president adams' first message, ; against weekly licenses to distillers, ; assault on matthew lyon, ; griswold and lyon, case of, _see breach of privilege_. on mausoleum to washington, ; on reporting the debates, ; on ratio of representation, ; on public printing, ; on georgia limits, ; on mediterranean trade, ; on the collection of international revenue, ; on french spoliations, , ; on ohio state government, ; on unauthorized purchase of navy yards, ; on the call for papers relative to the cession of louisiana to france by spain, , , , , , ; on petitions of united states judges, . _see index_, vol. . grove, william barry, representative from north carolina, , , , , , . _see index_, vol. . gunn, james, senator from georgia, , , , , . _see index_, vol. . h hancock, george, representative from virginia, . _see index_, vol. . hanging maw, petition of widow of, . hanna, john andre, representative from pennsylvania, , , , , , , . harper, robert g., representative from south carolina, , , , , ; on a national university, ; on relief to sufferers by fire at savannah, ; on petition of hugh l. white, ; on a direct tax on slaves, ; on naval policy, ; on increase of duties on salt, - ; on suability of the states, , ; on naval appropriations, ; on liberation of la fayette, ; on military and naval appropriations, ; on defensive measures, ; on a naval establishment, ; on exempting bank notes from stamp duty, ; on additional duty on salt, ; on the quakers' memorial, ; on the expenditure for the naval service, ; on relief to daughters of count de grasse, ; on appropriation for foreign intercourse, , ; on the case of griswold and lyon, , ; on diplomatic intercourse, ; on the limits of georgia, , ; moves amendment relative to importation of slaves in mississippi territory, , _note_, ; on relations with france, , , ; on a provisional army, ; on establishing the navy department, ; on the naturalization laws, , ; against taking new census before laying direct tax, ; relative to letters of marque, ; on the sedition bill, , ; on abrogation of treaty with france, ; on intercourse with france, , , ; on increase of the navy, ; on relations with france, ; on the capture of french vessels, ; on petitions relative to repeal of alien and sedition laws, ; asks leave to bring in a bill to amend direct tax law, ; on petition of free blacks, ; on the case of jonathan bobbins, , ; on admirals in the navy, ; for a mausoleum to washington, , , ; on jurisdiction over district of columbia, , . _see index_, vol. . harrison, carter b., representative from virginia, , , , ; advocates weekly licenses to distillers, . _see index_, vol. . harrison, william henry, representative from north west territory, ; credentials referred to committee, . hartley, thomas, representative from pennsylvania, , , , ; on relief to sufferers by fire at savannah, , , , ; on lands for canadian refugees, ; on a direct tax on slaves, ; on the compensation of president and other officers, ; on the accommodation of the president, ; on military appropriations, , ; on naval appropriations, ; on liberation of la fayette, ; on answer of house to president adams' st message, ; on the limits of georgia, ; on intercourse with france, ; decease reported to the house, . _see index_, vol. . hathorn, john, representative from new york, . _see index_, vol. . havens, jonathan n., representative from new york, , , , . _see index_, vol. . hastings, seth, representative from massachusetts, . heath, john, representative from virginia, ; on the address to the president, ; on the petition of manumitted slaves, ; on the accommodation of the president, , ; on military and naval appropriations, ; on liberation of lafayette, . _see index_, vol. . heister, daniel, representative from maryland, heister, joseph, representative from pennsylvania, , , , , . helms, william, representative from new jersey, , . hemphill, joseph, representative from pennsylvania, , ; on call for information relative to cession of louisiana, . henderson, archibald, representative from north carolina, , , , , , , ; on the accommodation of the president, , ; against the repeal of the judiciary establishment, . henderson, pleasant, claim to certain lands, . henry, john, senator from maryland, , ; vote for, as president in , . _see index_, vol. . hill, william h., representative from north carolina, , , , ; on petition of free blacks, ; on reporting the debates, . hillhouse, james, senator from connecticut, , , , , , , , ; elected president of senate _pro tem._, . _see index_, vol. . hindman, william, representative from maryland, , , , . _see index_, vol. . hobart, john sloss, senator from new york, ; resigns, . hoge, william, representative from pennsylvania, , . holland, james, representative from north carolina, , , ; on the petition of manumitted slaves, ; on increase of duties, , ; on increase of duties on salt, ; on the accommodation of the president, ; on naval appropriations, . holmes, david, representative from virginia, , , , , , , ; on printing the laws in the german language, . hosmer, hezekiah l., representative from new york, , , . _house_, secret session of, ; adjourns at close of fourth congress, ; answer to president adams' first message, ; answer as delivered to president adams' first message, ; answer to president's message, ; answer to president's message to third session, fifth congress, ; _note_ on, ; address in answer to president's message, ; thanks to general lee for eulogium on memory of washington, ; refuses to accompany senate to hear eulogium on washington, ; answer to president's message second session, sixth congress, ; proceedings relative to purchase of louisiana, ; tenders thanks to speaker macon, . howard, john e., senator from maryland, , , , , , , , ; chosen president of senate _pro tem._, . huger, benjamin, representative from south carolina, , ; for a mausoleum to washington, ; on collection of internal revenue, ; on call for papers relative to cession of louisiana, , ; on considering the french spoliations, ; on jurisdiction over the district of columbia, . hunt, samuel, representative from new hampshire, . hunter, john, senator from south carolina, , . hunter, narsworthy, delegate from mississippi, ; decease of, . i imlay, james h., representative from new jersey, , , , , . _impressment of seamen_, message in relation to, . _imprisonment for debt._--bill making provision for relief of persons, passed, ; particulars of bill, ; resolution to revise the laws, offered, ; object, to secure debtor his property and provide some remedy beside imprisonment, ; considerations against imprisonment urged, . _inaugural address_ of john adams, ; of thomas jefferson, . _indian lands_ within a state, rights over, _see index_, vol. . _indian trading houses._--_see index_, vol. . _intercourse with france._--_see france, relations with._ iredell, james, vote for as president in , . j jackson, andrew, representative from tennessee, ; first appearance in national councils, ; _note_, ; on petition of hugh lawson white, , ; presents petition of george colbert, ; senator from tennessee, ; resigns as senator, . jackson, george, representative from virginia, , , , , ; on a direct tax on slaves, ; on the judiciary establishment, ; on resolutions relative to the navigation of the mississippi, . _see index_, vol. . jackson, james, senator from georgia, . _see index_, vol. . jarvis, james, officer on frigate constellation, . jay, john, vote for as president, , . jefferson, thomas, his address as president of the senate, ; _note_, ; vote for as president in , ; vice president and president of senate, , , ; vice president attends senate, , ; vote for as president, ; address on retiring from senate, ; inauguration as president, ; address, ; answer to notification of the house of his election, ; letter to president of senate, ; _note_, ; views on slavery, an obstacle to his receiving the vote of south carolina for president, . _see index_, vol. . johnson, charles, representative from north carolina, . johnston, samuel, vote for as president in , . jones, james, representative from georgia, , ; on petition of free blacks, , ; on the case of jonathan robbins, ; on the apportionment bill, . jones, walter, representative from virginia, , , . jones, william, representative from pennsylvania, , . _judiciary system_, bill to amend a previous act establishing judicial courts, ; ordered to second reading, ; numerous reasons for the introduction of the bill, ; parts of the bill, ; bill passed to third reading, ; _note_, . _in the senate_, part of message relating to judiciary system, read, ; motion that the act of last session respecting the judiciary establishment be repealed, ; _note_, ; motion debated, ; st. the law is unnecessary and improper-- d. the judges and courts created by it, can, and ought to be abolished, ; existing courts, competent and able to discharge duties, ; such was the case when the law passed, ; amount of business before the courts, ; suits decreasing, ; united states never need thirty-eight federal judges, ; limit to federal judicial powers, ; power of congress to put down these additional courts and judges, examined, ; may be abolished as well as created under the constitution, ; a judge cannot hold his office after it is abolished, ; once a judge always a judge, examined, ; one of the most important questions ever before a legislature, ; what says the constitution?, ; judges _hold_ during good behavior, ; their compensation as prescribed, designed to preserve their existence, ; motion unconstitutional, ; the ancient system stated, ; if you repeal so far as regards these judges, you may for all, ; thereby you destroy the check provided in the constitution, ; all power is not vested in the legislature, ; constitutional power, ; words _shall_ and _may_, ; more afraid of an army of judges than an army of soldiers, ; it is said the law which creates a judge cannot be touched, ; the moment it is passed it exists to the end of time, ; the power to alter the system rests here, or nowhere, ; extent of our country, ; tendency of acts of late administration, ; history of legislative proceedings in the formation of the judiciary system, ; is this system so vicious as to deserve nothing but abhorrence?, ; the letter and spirit of the constitution against the repeal, ; judicial department should be independent, ; but not independent of the nation itself, ; what are the facts?, ; if a court once established, cannot be vacated, the greatest absurdities follow, ; the judges of mississippi territory, ; further remarks on the independence of the judiciary, ; the expediency of repealing the law considered, ; shall we restore to the people their former courts? is the true question, ; defects of the present system, ; reasons for the repeal insufficient, ; the expediency of the repeal examined, , ; the constitutional point examined, ; repeal needed as a precedent, ; our government a system of salutary checks, ; constitutional point further examined, , , ; bill passed, ; _note_, . _in the house_, resolutions offered in committee relative to the judiciary considered, ; resolutions agreed to, ; motion to refer to committee, ; remarks on reference, ; resolutions referred, ; bill from the senate to repeal considered in house, ; _note_, ; the people have established three departments for the powers of government, ; tenure by which the judges hold office, ; the words "during good behavior" are a limitation on executive and legislative power, ; examination of these words, ; a subsequent legislature can repeal the acts of a previous one, examined, ; any other construction leads to a concentration of executive and legislative power, ; this is the spirit of innovation which has prostrated the old world, ; expediency of the repeal examined, ; comparison of the present and former system, ; constitutionality of the measure examined, ; delegated powers, ; judiciary is a check on the legislature, shown, ; the judges are expounders of the constitution and laws, ; they ought to be independent of the other branches of government, particularly the legislative, ; concentration of power is the essence of tyranny, ; as we advance to it, we recede from liberty, ; what was the intention of the framers in introducing the words "good behavior"?, ; origin of parties in this country fundamental, ; manner of growth, ; proceedings of the favorers of patronage, ; the strict letter of the constitution now appealed to, ; will the repeal of this law violate in any respect the salutary or practicable independence of the judges, secured by the constitution?, ; the terms "independence of the judges" or "judiciary" not found in the constitution, ; relationship between the executive and judiciary departments, ; clauses of the constitution examined, , , ; are not the judges more independent under this view than those of england?, ; it is admitted congress may increase or diminish the duties of judges, ; preceding arguments for repeal examined in detail, and a defence of the late administration, , , , ; inexpediency of the present bill shown by the expediency of the judicial law of last session, ; the pre-existing system examined, and its defects and evils, as affected by the late act, considered, , , ; changes made by the late law, , ; when did the right of the executive to recommend modifications of the judiciary system cease, or of congress to act?, ; former practice with present theory compared, ; doctrine of the judiciary in virginia, , ; point conceded, ; further debate, , ; practice of north carolina relative to instructions, ; constitution of north carolina, ; interpretation of the words "during good behavior" there, ; arguments against the bill examined, ; further debate, , , ; intention of the convention to make the judges independent of both executive and legislative power, so universally admitted at the time, ; hence any intrusion or intermeddling by congress is usurpation, ; what avail are prohibitory clauses in the constitution, if there be no power to check congress and the president?, ; these regulations designed for the safety of the state governments and the liberties of the people, ; but the doctrine urged to-day will sweep away all barriers, ; illustrations given by reference to the constitution, ; expense of the national judiciary, ; reasons for passing the law of last session, ; influence upon the elections, ; vote at the election in the house, ; _note_, ; the professed friends of the people, ; course of south carolina on the presidential election, , ; jefferson's views on slavery prevented his receiving the vote of south carolina, ; note, ; what manifestation of the public will was there in reference to the late election for president?, ; further debate, , ; motion to postpone the bill lost, ; bill passed, . _united states' judges, memorial of_, in senate, report of committee on, ; what is due to the supreme law of the land?, ; memorialists ask if the law of last session deprived them of their office of judge, ; a question not cognizable by the senate, to whom it does not belong to interpret their own acts, ; it should be speedily settled by the proper tribunals, ; effect of such a decision, ; committee should have confined themselves to the points of the question, ; constitutional power of senate reviewed, ; resolution of committee lost, . petitions of, ; reference moved, ; memorial does not embrace any point of inquiry, ; it should be referred to committee of the whole, ; the constitutional question already determined, ; undoubtedly a constitutional question, ; reference unnecessary, subject already fully discussed, ; referred to committee of the whole, ; discussion in committee, ; question been settled as to right of depriving the judges of their office, but not the question as to their compensation, ; resolutions offered, ; a new doctrine advanced, that a judge is entitled to his compensation, after being deprived of his authority and his powers are transferred to another, ; true question on the constitutionality of the law, ; if the courts are abolished, are the officers abolished?, ; would the supreme court in this case be an impartial tribunal?, ; it would be improper to authorize the supreme court to decide upon the constitutionality of the law, ; when there are no services, there can be no claim for salary, ; memorial is a protest, and let it rest on the files of the house, ; resolutions lost, . k _kentucky_, vote for president, , . kitchell, aaron, representative from new jersey, , , ; on relief to sufferers by fire at savannah, ; on petition of hugh l. white, ; on the petition of manumitted slaves, ; on increase of duties on sugar, ; on military appropriations, ; on the case of jonathan robbins, . _see index_, vol. . kittera, john wilkes, representative from pennsylvania, , , , ; on a direct tax on slaves, ; on naval appropriations, , ; presides in committee of the whole, , ; on the limits of georgia, ; on the bill relative to the protection of commerce, ; on abrogation of treaty with france, . _see index_, vol. . kosciusko, general, claim of, ; history of, ; proceedings on, ; accounts of, . l lafayette, general.--resolution relative to, ; negotiations to effect his release from imprisonment, ; his services for this country, ; propriety and duty of negotiations on the part of the executive, ; subject improper to be introduced to the house--president knows the will of the people, ; no impropriety in it, ; further debate, ; question lost, ; _note_, . _see index_, vol. . _lake superior._--copper lands and mines--resolution authorizing the purchase of copper lands, ; report of committee, ; resolution reported agreed to, . langdon, john, senator from new hampshire, , , , , , . _see index_, vol. . latimer, henry, senator from delaware, , , , , . _see index_, vol. . laurance, john senator from new york, , , , , ; elected president _pro tem._ of senate, . _see index_, vol. . _law of retaliation._--_see defensive measures._ lear, tobias, letter to president announcing death of washington, . lee, henry, representative from virginia, , ; delivers an oration on death of washington, ; letter accepting thanks of house, ; on petition of free blacks, ; on the case of jonathan robbins, , ; on mausoleum for washington, , , , ; on reporting the debates, ; on jurisdiction over district of columbia, , . lee, silas, representative from massachusetts, , . leib, michael, representative from pennsylvania, , , , . leonard, george, representative from massachusetts, . _see index_, vol. . _library of congress_, resolution for a committee to procure, ; bill regulating the use of, considered, ; discussion of details, . _limitation, acts of_, report on, ; _note_ on, . lincoln, levi, representative from massachusetts, . linn, james, representative from new jersey, , . liston, robert, note to secretary of state, . livermore, samuel, senator from new hampshire, , , , , , ; chosen president of senate _pro tem._, ; on disputed presidential elections, . livingston, edward, representative from new york, , , , , , ; on the address to the president, , ; on a national university, ; on military and naval appropriations, ; on liberation of lafayette, ; on answer of house to president adams' first message, , ; on arming merchant vessels, ; on tax on lawyers, ; reports on petition of daughters of count de grasse, ; on expenditure for the naval service, , ; on diplomatic intercourse, ; on relations with france, ; on establishing the navy department, ; on the sedition bill, , ; on relations with france, , ; on the capture of french vessels, , ; on repeal of alien and sedition law, ; on the law of retaliation, ; proposes resolutions in case of jonathan robbins, ; on the case of jonathan robbins, , , , , . _see index_, vol. . lloyd, james, senator from maryland, , , ; resigns seat in senate, . lloyd, thomas, proposes to report debates of house, . locke, matthew, representative from north carolina, , , , . logan, george, senator from pennsylvania, , . _louisiana, cession of, in the house_.--resolution calling on the president for any documents relative to the cession of louisiana to france, considered, ; subject akin to one that had been discussed with closed doors, it should therefore be referred in the same manner, ; nothing which ought to be kept secret involved in the transaction, ; why refer the resolution calling for information to a committee? ; if publicity will interfere with constitutional functions of the president, resolution should not be supported, ; the cession is a public fact, ; custom of the house should determine this fact, ; no impropriety in this request, ; widest publicity desirable where it will not prove injurious, ; let the call prevail, ; advantage of going into committee of the whole, ; what is the object of those refusing information? ; if proper we ought to have these documents, ; this the first instance a resolution allowed to be important had been refused a reference, ; object of reference is discussion with closed doors, ; case of the british treaty, ; logic of the opposition, ; what end is to be answered by committal, ; case of british treaty restated, ; reference carried, ; in committee--shall the doors be closed as heretofore ordered in respect to this subject, ; discussed, , ; resolutions in secret session, ; resolutions for a call for papers again considered, ; should not be referred to a secret committee, ; motion has already been decided, ; the president alludes to the subject as one which may require legislative interposition, yet persists in refusing information, ; why do we want information, but that we may have a more clear view of the general subject, ; only two points connected with the subject in which documents could be required or secrecy necessary, ; material connection between shutting the port of new orleans and the cession of louisiana--one has been ordered to be discussed with shut doors, how proper then to introduce the other in debate, ; numerous reasons for opposing the resolution, ; speech of mr. monroe in the virginia convention, ; _note_, ; who now are the friends of the west and the free navigation of the river? ; the sentiments displayed in this proceeding a phenomenon in the history of regular governments, ; a history of political parties unnecessary, ; resolution lost, ; further resolutions moved, ; lost, ; motion for call renewed, ; confidential subjects have been decided, ; information necessary to legislation, ; no fact has been communicated in the message, ; it conveys the suspicion that spain has ceded to france indefinitely, ; unwise in the cradle of negotiation to throw out insinuations that may disgust, ; farther discussion, ; what is the inference from previous proceedings of these gentlemen? they will not assert our rights because they have no confidence in the executive, ; objections to the resolution, ; relations of the departments of government, ; it will offend foreign nations to agree to the resolutions, ; further debate, resolution lost, ; motion to discharge committee to whom was referred a motion respecting official information, ; the practice has alarmingly increased to resist a call for information, ; reasons given, . _purchase of louisiana_, resolutions, ; report thereon, ; _note_, . _louisiana, purchase of, in senate._--a bill making further provision for the expenses attending intercourse between the united states and foreign nations, considered, ; read third time, ; passed, ; _note_, , . lowndes, thomas, representative from south carolina, , ; on public printing, ; relative to state balances, ; on french spoliations, ; on the circulation of gold coin, ; _note_, ; on the call for information relative to cession of louisiana, . lyman, samuel, representative from massachusetts, , , , , . _see index_, vol. . lyman, william, representative from massachusetts, ; on the address to the president, , ; on a national university, ; on relief to sufferers by fire at savannah, ; on liberation of lafayette, . _see index_, vol. . lyon, matthew, representative from vermont, , , , ; on accompanying the house to deliver their answer to the president's message, ; on exempting bank notes from stamp duty, ; on additional duty on salt, ; on printing the laws in the german language, ; on address to the president, ; attack on roger griswold, ; letter of, relative to attack on roger griswold, ; proceedings relative to his assault on roger griswold, ; on treatment of alien enemies, . _expulsion of_ from house.--resolution proposed, ; objection to an immediate vote, ; record of the trial proves the facts, ; power of the house in reference to expulsion, ; acts committed out of the house, ; the acts of lyon, ; something should have been shown in the character of lyon so infamous as to render him unfit to sit in the house, ; the charges against the member ought not to have been inquired into under the sedition law, ; charges, ; examination of them, ; the member is re-elected by constituents having a full knowledge of the prosecution, ; remarks of lyon, ; reply, ; further discussion of the law and the case, , ; an examination of the letter published, ; the constitutionality of the law under which the member was tried and manner of trial, ; resolution to expel lost, ; on the medal to captain truxton, . lyon, matthew, case of, _see breach of privilege_. m machir, james, representative from virginia, , , . maclay, samuel, representative from pennsylvania, . _see index_, vol. . macon, nathaniel, representative from north carolina, , , , , , , , ; on a national university, ; on relief to sufferers by fire at savannah, ; on land for canadian refugees, ; on kidnapping negroes, ; on the petition of manumitted slaves, ; on the accommodation of the president, , ; on address to the president, ; on the quakers' memorial, , ; on stamp duties, ; advocates weekly licenses to distillers, ; on report relative to the matthew lyon affair, ; on the limits of georgia, ; on a provisional army, ; on establishing the navy department, ; on presents to ministers by foreign courts, ; on temporary direct tax, ; on persons to be admitted to citizenship, ; on bill relative to instructions to armed vessels, ; on the sedition bill, , ; on intercourse with france and st. domingo, ; on the capture of french vessels, ; on the law of retaliation, ; against mausoleum to washington, , , ; on reporting the debates, ; on jurisdiction over district of columbia, , ; elected speaker, ; address to house, ; on ratio of representation, ; on georgia limits, ; on repeal of internal taxes, ; relative to state balances, ; in favor of repeal of judiciary establishment, ; acknowledges thanks of house, . _see index_, vol. . madison, james, representative from virginia, ; on a national university, ; on liability of united states to a state for war expenses, ; on a direct tax on land and slaves, ; on the petition of manumitted slaves, ; on liberation of lafayette, . _see index_, vol. . malbone, francis, representative from rhode island, . _see index_, vol. . marshall, humphrey, senator from kentucky, , , , , , . _see index_, vol. . marshall, john, representative from virginia, ; on breach of privilege, ; announces death of washington in house, ; on the case of jonathan robbins, ; his great speech, . martin, alexander, senator from north carolina, , , , . _see index_, vol. . _maryland_, vote for president, , . mason, jonathan, senator from massachusetts, , ; on repeal of judiciary establishment, . mason, stevens t., senator from virginia, , , , , , , , ; on breach of privilege, ; on the repeal of the judiciary establishment, ; on the resolutions relative to the right of the united states to the free navigation of the mississippi, . _see index_, vol. . _massachusetts_ vote for president, , . mathers, james, sergeant-at-arms to senate, ; his extra allowance, . matthews, william, representative from maryland, , , . mattoon, ebenezer, representative from massachusetts, , , . _mausoleum_ for washington, report of committee in senate, . mcclay, samuel, senator from pennsylvania, , . mcclenachan, blair, representative from pennsylvania, , , . mcdowell, joseph, representative from north carolina, , ; on answer of house to president adams' first message, ; on tax on lawyers, ; on the bill to raise a provisional army, ; on establishing the navy department, ; on the naturalization laws, , ; on presents to ministers by foreign courts, ; moves to postpone bill for a provisional army, ; on residence before citizenship, ; on the bill relative to protection of commerce, ; on intercourse with france, ; on the sedition bill, ; on instructions to armed vessels, ; on intercourse with france, ; on the bill relative to the capture of french vessels, ; on the capture of french vessels, ; on repeal of alien and sedition law, . _see index_, vol. . mchenry, james, letter to the house on the application of money drawn from the treasury, . mcmillan, delegate from north-west territory, . _mediterranean powers_, report relative to affairs with, ; _note_, ; bill in relation to, . _mediterranean trade_, resolution calling for information relative to exports to the mediterranean considered, ; upon the report a calculation will be made of the expense of protection, ; report must be defective, ; this call may delay passage of an important bill, ; resolution agreed to, ; bill for the protection of commerce in mediterranean considered, ; amendment to give president power to issue letters of marque to affect algiers, tunis and tripoli, ; it seems to invite war, ; their perfidiousness made this necessary, ; other reasons urged, ; not carried, . meriwether, james, representative from georgia, . _message_, washington to second session, fourth congress, ; of president john adams to congress, ; confidential from president to senate relative to the dey of algiers, ; documents accompanying first message of john adams to congress, ; of president adams to second session, fifth congress, ; on the creek indians, ; do. on french outrage, ; do. on despatches from france, ; on affairs with france, ; from president adams to senate with washington's letter accepting lieutenant-generalship, ; to house relative to persons imprisoned for debt, ; on french outrages, ; on relations with france, , ; from president adams to third session of fifth congress, ; with documents relative to impressment of seamen, ; on french affairs, ; president adams to first session, sixth congress, ; to senate announcing death of washington, ; from house on death of washington, ; of president on sending resolutions to mrs. washington, ; fourth of president adams to second session, sixth congress, ; _note_, ; first of president jefferson, ; from president on georgia limits, ; of president jefferson, second session, seventh congress, ; on negotiation for acquisition of louisiana, ; with papers relative to removal of deposit at new orleans, . _military academy_, bill for establishing, introduced and read, ; motion to reject it, ; do. negatived, ; bill referred, ; postponement carried, . _military interference_ in elections, resolution relative to, . milledge, john, representative from georgia, , , ; on relief to sufferers by fire at savannah, ; on military appropriations, ; on the limits of georgia, ; moves amendment to bill relative to mississippi territory, ; on georgia limits, . _see index_, vol. . _mint_, motion to consider a repeal of act establishing, ; present state of matters at the mint, ; no advantage in the discussion at this time, ; no member sees a gold coin, ; two millions deposited in the bank, ; _note_, ; reasons adduced for its abolition are insufficient, . _mint, establishment of._--_see index_, vol. . _mississippi question, or free navigation of the mississippi_, considered in senate, ; conduct of spanish officers at new orleans, ; the power must be given and the means voted to vindicate in a becoming manner the honor and interests of the country, ; spoliations by spanish armed vessels, ; our right to free navigation of the mississippi, ; denied, ; consequence, ; should take the command of the river, ; feelings of western people, ; resolutions, ; _note_, ; resolutions mark out a system of measures honorable to the country, ; extract from our treaty with spain, ; notwithstanding the treaty, new orleans has been wrested from us, ; represented as the rash act of an officer and not of the spanish government, ; measures adopted, ; agency of bonaparte concealed, ; danger of french control over the navigation of the mississippi, ; what is the true state of facts? ; reasons for an immediate appeal to arms, ; substitute for the resolutions moved, ; a constant eye has been kept on this important subject by our government in its negotiations, ; history of negotiations, ; conduct of the intendant at new orleans is an atrocious infraction of the treaty, ; was it authorized by spain or not? ; true state of spanish aggression, ; nature, character and tendency of the remedy proposed, ; proposes to seize part of the territory, ; in this case the controversy must be decided by force, ; resolution then a war resolution, ; its justice and policy considered, ; in vain to say the western states will seize new orleans, ; an indignity has been offered the united states by the spanish government, by withdrawing the right of deposit at new orleans in this manner, ; the right of the free navigation of the mississippi, and to a place of deposit indisputable, ; to seize any place or places is an act of war, ; should we be justified in this measure on the grounds of private or public justice or the law of nations, considered? ; what evidence that the intendant is not authorized by the spanish or french government? ; our interests, our honor, our safety require the course pointed out by the resolutions, ; the resolutions do not go far enough, ; we wish for peace, how is it to be preserved? ; what is the state of things? ; effect of this cession on the united states in general point of view, ; its effects on the various divisions of the country, ; its consequences to other nations, ; the first resolution intended to involve members opposed to hostile measures in a dilemma, ; they call on us to declare the deprivation of our right of deposit to be hostile to our interests and our honor, ; effects of negotiation heretofore, ; it is said negotiation is not the course for us to pursue, ; merits of the different propositions, ; it is said spain had no right to cede louisiana to france, ; extraordinary aspect of the senate, ; on what right could we hold the country against france? ; we have nothing to fear from the colony of any european nation on this continent, ; conduct of this house on former occasions, ; our object to obtain prompt redress of injuries immediately affecting our western brethren, ; we are not for rushing into war, but for repelling insult, ; members have pledged themselves to employ force on failure of negotiations, ; resolutions passed, ; proceedings in secret session relative to free navigation of mississippi, . _mississippi territory._--_see territories._ mitchell, samuel l., representative from new york, , ; on protection against the barbary powers, ; in favor of resolution relative to state balances, ; on french spoliations, , , , . monroe, james, speech in virginia convention relative to surrender of the navigation of the mississippi, . _monuments_ to generals and to the captors of andre, . moore, thomas, representative from south carolina, , , ; on relief to sufferers by fire at savannah, , ; on a direct tax on slaves, . morgan, daniel, representative from virginia, , , . morris, gouverneur, senator from new york, , , ; on the resolutions relative to the right of the united states to the free navigation of the mississippi, . morris, lewis r., representative from vermont, , , , , , . morris, thomas, representative from new york, , ; on repeal of judiciary establishment, , ; on the apportionment bill, ; on the collection of internal revenue, ; relative to state balances, ; on memorial of united states judges, ; for the reading of the letter of mchenry, ; on granting land-warrants to la fayette, . mott, james, representative from new jersey, , . muhlenberg, frederick a., representative from pennsylvania, , , . _see index_, vol. . murray, william vans, representative from maryland, ; on a national university, ; on relief to sufferers by fire at savannah, ; on kidnapping negroes, , ; on a direct tax on slaves, ; on the purchase of a site for a navy yard, . _see index_, vol. . n _national university._--report on, considered, ; the time has not arrived to incorporate a university, ; if the house once enters on this subject, the responsibility will fall on it to keep it up, ; the commissioners only ask to be incorporated, so as to receive legacies, ; the president has already made a donation, ; is it a proper step, ; we are only asked to permit its encouragement, ; better to ask this of maryland, ; improper time to decide upon a national university, ; effects of the resolution, if adopted, ; will we grant power and security to individuals to receive donations for this object, ; negatived in committee, ; further debate, ; subject postponed, ; vote on postponement of consideration of, ; memorial of samuel blodget relative to, . _naturalization laws._--_resolution to prolong term of residence_ before aliens shall be admitted as citizens, considered, ; five years too short, ; at least ten should be required, ; high time to recover from the mistake of admitting foreigners to citizenship, ; amendment offered that no alien, not at present a resident, shall be capable of holding any office under u. s., or voting, ; civil rights might be extended in full to foreigners, but not political rights, ; unnecessary they should take a part in government, ; only persons born in a country should do it, ; the form of the amendment examined, ; resolution proposed as a substitute, excluding all aliens not citizens from holding any u. s. office, ; house not authorized to enact this principle into a law, ; it ought to be considered as a proposition to amend the constitution, ; if the house had power to extend the term of residence, they could make it for life, ; question made on amendment of previous resolution, ; president and senate always appoint such men as they think proper, ; people can elect a foreign-born citizen to any state office, ; no doubt of the constitutionality of restricting aliens, ; what advantage to be derived from giving aliens office? ; propriety of action on the subject, ; amendment withdrawn and original resolution adopted, ; resolution relative to removal of resident aliens whose government is at war with this country, considered, ; what shall be considered "at war?" ; foreigners have been invited here, this resolution will unnecessarily distress their minds, ; intriguing aliens should be removed, ; a positive declaration of war should be required before aliens are sent from the country and our citizens abroad similarly exposed, ; only dangerous persons should be sent away, ; the resolution proposes to give the president power to remove aliens when the country from which they come _threatens_ invasion, ; evil threatened at the present time, ; commissions issued here by foreign ministers, ; _note_, ; this an essential feature of defence, about which congress has been engaged during the session, ; great number of french aliens in the country endeavoring to create divisions, ; the same degree of hospitality is not due to french aliens and to alien friends, ; moved to extend to _all_ alien residents, ; look at the results of french emissaries in venice, switzerland, and rome, ; similar emissaries in this country, ; views of the committee who reported the resolution, ; further debate, ; last motion withdrawn, ; proposition to add the words, "between which and the united states shall exist a state of war," ; debate thereon, ; postponement carried, ; consideration resumed, and subject referred, ; amended resolution, . _motion to require fourteen_ years' residence before admission to citizenship, ; tend to discourage emigration, ; carried, ; discussion on the retrospection of the bill, ; committee thought bill should pass in its present form, ; amendments proposed, ; also to except residents previous to , ; reason in favor of the amendment, ; no exception should be made, ; the character of the persons who have come here is such as to require the amendment, ; it is a question of right or expediency; considered as the latter, the danger is apparent of permitting foreigners to become citizens as heretofore, ; injustice to a great number of people to pass the bill without the amendment, ; amendment passed, ; negatived in the house, ; bill ordered to a third reading, . _alien laws, petition for repeal_ of, ; motion to refer, ; part of the petition contains an atrocious libel against the courts and juries of the country, ; this should not be referred, ; this is the ground suggested by the greatest enemies of these laws, that the right of petitioning might next be restricted, ; to object is to say we have the power of defining the nature of petitions, ; further remarks on the character of the petition, ; further petitions for repeal, ; report of committee on petitions for repeal, ; resolution that it is inexpedient to repeal alien law, considered, ; number of petitioners, ; objectionable clause of the alien law, ; grounds of objection by petitioners, ; objections examined, ; report of committee examined, , , , ; resolution carried, . _naturalization laws._--_see index_, vol. . _naval armament._--_see appropriations_, naval. _naval captains_, bill for pay of, . _naval and marine_ officers, bill for relief of widows and orphans of, . _naval establishment_--purchase of a site for a navy yard, considered, ; at some future day we shall become a naval power; it is now economy to prepare for it, ; expense of this business alarming, ; if the thing is proper, two or three years can make very little difference, ; a navy would never do any real good to this country, ; this country depends wholly on commerce for revenue, ; that commerce is now in jeopardy, and no substitute for revenue found, ; the money thrown away on algiers to buy a peace would have been much better expended in building ships, ; want of a navy will have a similar effect on all our negotiations, ; our live-oak timber is too rich a mine to be neglected, ; they must provide for the protection of commerce, or give it up, ; is the measure proper, and is it not best to postpone it for the present? ; if a navy is necessary to protect commerce, it must be such a one as will vie with those of other nations, ; who can show that commerce and a navy have gone hand in hand? ; this country not equal to support a navy, ; how can such a navy, be manned? ; our peculiar situation affords means of protection, ; our only mode of warfare against europe is by putting our seamen on board of privateers, ; _note_, . _bill to establish navy department_ considered, ; unnecessary, ; one department sufficient for army and navy, ; objections have been to increase the navy because of enormous expense arising from want of knowledge--this department will obviate this, ; necessity for this establishment, ; notwithstanding all resistance the establishment of a naval force must soon be seriously considered, ; the necessity for the department examined, ; a want of knowledge of naval affairs in the war department is the occasion of this bill--this can be obviated, ; economy requires the department, ; this bill is founded on the idea of establishing a large naval power, ; economy further considered, ; not for the interest of the country to establish a naval power, ; large debts exist with large navies, ; every measure to increase the navy will have a bad effect, ; further debate, ; bill ordered to third reading, ; passed, ; _note_, . _bill for augmentation of the navy_ considered, ; question of the propriety of building ships of the line, ; reasons for building smaller ships of the line, ; is it proper at this time to lay the foundation of a navy that might be able to give us weight with europe? ; expense of proposed navy, ; reasons urged against a large navy, ; the extent and advantages of our commerce entitle it to competent protection, ; british navy contrasted with ours, ; expense of a navy, ; jefferson's views, ; means by which to raise the money needed, ; usefulness of a naval establishment considered, ; navy of holland, ; instruction to be drawn from this example, ; propriety of a naval force for warring with europe, ; arguments on, examined, ; no good reason for its establishment exists, ; motion to strike out ships of the line lost, ; _note_, . _bill for fixing pay of captains_ of ships, &c., ; details, . _see appropriations_, and _index_, vol. . _naval peace establishment_, bill for, passed house, . _navy, admirals_ in, _see admirals in the navy_. _negroes, kidnapping of_, report on memorial of state of delaware relative to kidnapping negroes and mulattoes considered, ; this practice done by masters of vessels, ; plan was to pass an act requiring masters of vessels to have a certificate of the number and situation of any on board, ; laws in the several states fully adequate, ; state laws being local do not reach the case, ; design is to prevent selling free negroes as slaves and taking slaves to make them free, ; many serious questions involved, ; committee better rise as the measure is improper, ; many instances of this practice had occurred, ; it is that kind of business which, by the constitution, was to be left to the different states, ; the house should not interfere with the states, ; motion for the committee to rise carried, ; motion to discharge committee carried, ; motion to recommit to report by bill or otherwise, ; propriety of sending it to committee doubtful, ; postponement carried, . neufville, john de, claim of widow of, ; particulars of, . new, anthony, representative from virginia, , , , , , , , ; advocates weekly license to distillers, . _see index_, vol. . _new hampshire_, vote for president, , . _new jersey_, vote for president, , . _newspapers_, resolution of house relative to, ; resolution of senate for, . newton, thomas, jr., representative from virginia, , . _new york_, vote for president, , . nicholas, john, representative from virginia, , , , ; on the address to the president, , ; on a national university, , ; on kidnapping negroes, ; on liability of united states to a state for war expenses, ; on a direct tax on land and slaves, , , ; on the purchase of a site for a navy yard, ; on increase of duties on sugar, , ; on increase of duties on salt, ; on naval appropriation, , ; on suability of the states, ; on the accommodation of the president, , ; on the military establishment, , ; on naval appropriations, , , ; on military and naval appropriations, ; on liberation of la fayette, ; on answer of house to president adams' first message, ; on resolutions relative to defensive measures, ; on a naval armament, , ; on tax on lawyers, , ; on exempting bank notes from stamp duty, ; on composition with banks in lieu of a tax, ; on additional duty on salt, ; on the quakers' memorial, ; advocates weekly licenses to distillers, ; on naval expenditure, ; on foreign intercourse, , ; on report relative to matthew lyon, , ; on the case of griswold and lyon, , ; on diplomatic intercourse, ; on the limits of georgia, , ; on relations with france, ; on the bill to raise a provisional army, ; on the sedition bill, , ; on intercourse with france and st. domingo, , , ; on increase of the navy, ; on the capture of french vessels, ; on the expulsion of matthew lyon, ; on repeal of sedition law, ; on breach of privilege, ; on the case of jonathan robbins, , , ; on the medal to captain truxton, ; on the bill to prohibit carrying on the slave trade, ; on reporting the debates, ; on mausoleum to washington, ; on reporting the debates, , ; on jurisdiction over the district of columbia, , ; on the right of the united states to the free navigation of the mississippi, . _see index_, vol. . nicholas, wilson cary, senator from virginia, , , , . nicholson, jacob a manumitted slave, petition of, . nicholson, joseph h., representative from maryland, , , , ; on the case of jonathan robbins, ; relative to officers and crew of frigate constellation, ; on reporting the debates, ; on protection against the barbary powers, ; on public printing, ; on the mediterranean trade, ; on unauthorized purchase of navy yards, ; on amendment to the bankrupt act, . nicholson, jupiter, a manumitted slave, petition of, . _north carolina_, vote for president, , . nott, abraham, representative from south carolina, , ; on mausoleum to washington, . o _oaths._--_see index_, vol. . ogden, aaron, senator from new jersey, , , . _ohio school fund_, resolutions relative to, . _ohio state government._--report of select committee on admission of north-western territory as a state, ; after one state is laid off, congress is under an obligation to form the remainder into a state, ; number of the population, ; manner of dividing the territory, ; further debate thereon, ; report agreed to and bill ordered, ; do. before the house, ; amendment moved to embrace eastern division, ; rights of all the inhabitants equal--if one part formed into a state, all must be under the compact, ; arguments from expediency, ; objections urged, ; amendment lost, ; various amendments proposed, ; bill ordered to be engrossed, ; do. passed, . olcott, simeon, senator from new hampshire, , ; on the repeal of the judiciary establishment, . orr, alexander d., representative from kentucky, . otis, harrison gray, representative from massachusetts, , , , , ; on answer of house to president adams' first message, , ; on expatriation, ; on exempting bank notes from stamp duty, , ; on address to president, ; on the case of griswold and lyon, ; on the limits of georgia, , ; on relations with france, ; on the bill to raise a provisional army, ; on establishing the navy department, ; proposes amendment to naturalization laws, , , , ; on presents to ministers by foreign courts, ; on opposition to a direct tax, ; on bill relative to treatment of alien enemies, ; on the bill relative to the protection of commerce, ; on intercourse with france, ; on abrogation of treaty with france, ; on the sedition bill, , ; on intercourse with france and st. domingo, ; on the law of retaliation, ; on the case of jonathan robbins, ; on petition of free blacks, ; on reporting the debates, ; on mausoleum to washington, ; on reporting the debates, ; on jurisdiction over the district of columbia, . p page, john, representative from virginia, ; on relief to sufferers by fire at savannah, ; on a direct tax on slaves, . _see index_, vol. . page, robert, representative from virginia, , . paine, elijah, senator from vermont, , , , , , ; on breach of privilege, . _see index_, vol. . parker, isaac, representative from massachusetts, , ; on the quakers' memorial, . parker, josiah, representative from virginia, , , , , , ; on the address to the president, , ; on the compensation of president and other officers, ; on resolution to notify the vice president of his election, ; on compensation of president and other officers, ; on naval appropriation, , , ; on military and naval appropriations, ; on defensive measures, ; on the quakers' memorial, ; relative to general kosciusko, ; advocates weekly licenses to distillers, ; on the case of griswold and lyon, ; on third reading of the bill relative to protection of commerce, ; on a marine corps, ; on increase of the navy, ; on the capture of french vessels, ; reports a bill authorizing increase of marine corps, ; on conduct of officers and crew of frigate constellation, ; on the medal to captain truxton, ; on admirals in the navy, . _see index_, vol. . patton, john, representative from delaware, . _pennsylvania_ insurgents, _see index_, vol. . _pennsylvania_, vote for president, , . perkins, elias, representative from connecticut, , . _petitions_ for repeal of alien and sedition law, . _petitions, reception of_.--petition of four negroes, manumitted by their master, and afterwards sold into slavery under the laws of north carolina, and subsequently escaping and being arrested under the fugitive act in philadelphia, considered, ; they pray the house to modify the fugitive act so as not to affect persons of their description, ; very proper to refer petition to a committee, ; persons aggrieved have a sacred right to petition, ; laws of north carolina forbid emancipation, ; men not free, ; united states nothing to do with it, ; if free by the laws of north carolina, they should apply to those laws to establish their freedom--if slaves, the constitution gives them no hope of being heard here, ; a committee could inquire into the facts, ; every due respect should be paid to the petition, ; former practice was to send the petition back, ; they are slaves--a kind of property on which the house has no power to legislate, ; cannot the house receive a petition without evidence that it is from a free man? ; unjust to deprive them of the right of petitioning, ; it is a judicial question, ; by application to north carolina justice would be done them, ; they have received injury under a law of the united states, and have, therefore, a right to the attention of the government, ; receiving the petition negatived, . _quakers, memorial_ of, ; motion to read second time, ; every legislature should set their face against remonstrances complaining of what it is impossible to alter, ; to read and commit is the regular way of getting rid of the difficulty, ; no objection to commit if the committee will report the censure deserved, ; no reason why the petition should not be dealt with in the ordinary way, ; the practice of the house--what objection to it now? ; _note_, ; nature of the petition, ; no authority over the subject, ; quakers war-makers, ; _note_, ; unconstitutional to ask the house to do what they had no power to do, ; only object of petition to sow dissension, ; nothing prayed for, ; unnecessary to refer such a petition, ; no objection in general principles to a reference of the petition, ; contents of the petition, ; previous treatment of abolition petitions, ; to appear to be afraid of inquiring, will do more harm to slave property than a fair investigation, ; reasons urged for the second reading, ; the doors should be shut against any thing tending to produce such confusion as exists in west india islands, ; no ground of irritation in the question, ; nothing unconstitutional be done, ; the fact called for examination, ; if petition is received and early reported on, it would stop the mouth of these people, ; further debate, , ; second reading carried, ; referred to a select committee, ; report of committee on quakers' memorial, ; remarks thereon, ; memorialists have leave to withdraw, . _petition of free blacks_ of the city and county of philadelphia, considered, ; outline of the petition, ; reference moved, ; any reference improper, ; only two grievances noticed in the petition--fugitive act and slave trade, ; a duty to grant relief so far as the house has power, ; signers incapable of writing their names or reading the petition, ; those who do not possess this property better leave its regulation to those who do, ; so improper is it to consider this subject that some states would not have adopted the federal form of government if it had not been secured that congress would never legislate on it, ; no subject so likely to cause a division as this, ; if an evil exists under any law, a committee should be appointed to examine it, ; constitution put it out of the power of the house, ; petition only asks amelioration of severities, ; petition examined, ; further debate, , ; former treatment of petitions, ; would gentlemen feel calm if measures were taken to destroy most of their property, ; no danger from committing the petition, ; further debate, ; resolution relative to petition adopted, . _see index_, vol. , _slavery and slave trade_. _philadelphia_, first session, th congress, commenced at, . pickering, john, impeached before the senate by the house, . pickering, timothy, report of, as secretary of state, ; letter with papers in jonathan robbins' case, . pierce, joseph, representative from new hampshire, . _pilnitz, treaty_ of, a forgery, . pinckney, charles, senator from south carolina, , ; vote for, as president in , ; on disputed presidential elections, ; on breach of privilege, ; on bill to amend act establishing judiciary courts, ; vote for, as president, . pinckney, thomas, representative from south carolina, , ; vote for, as president in , ; on answer to president's message, ; relative to gen. kosciusko, ; on foreign intercourse, ; on relations with france, ; letter relative to presents offered to him by courts in europe, ; on presents to ministers by foreign courts, ; on intercourse with france and st. domingo, , ; on the capture of french vessels, . plater, thomas, representative from maryland, , . platt jonas, representative from new york, , ; on petition of free blacks, . plumer, william, senator from new hampshire, . pollock, oliver, bill reported for relief of, . _post office, franking privilege._--motion to pay $ , on letters to and from certain officers of the army, ; unnecessary, ; government ought to support this expense, ; all franking wrong, ; considerations in favor thereof, . _post office._--_see index_, vol. . _potomac canal_, shares in, given to the president, ; _note_, . potter, elisha r., representative from rhode island, , ; on a direct tax on personal property, ; on exempting bank notes from stamp duty, . powell, leven, representative from virginia, , . _presents to ministers._--letter of mr. pinckney relative to presents offered to him by spanish and british courts considered, ; referred to a select committee, ; resolution from the senate granting leave to mr. pinckney to accept certain presents, ; moved to concur, ; if we allow presents to be received, we must prepare to give them, ; if it should ever be allowed in consideration of public service, there never could be a better occasion, ; object of the constitution is to oblige ministers to make known to the world the presents they receive, ; this particular case considered, ; policy dictates the propriety of rejecting the resolution, ; object of the constitution to lock up every door to foreign influence, ; if leave granted, a precedent established and a title will be tendered hereafter, ; this will be the last application, if resolution rejected, ; no grounds for apprehension, ; practice under the confederation, ; action in this case will fix future usage, ; not necessary to accept them as a point of etiquette, ; a dangerous principle as it opens an avenue to foreign influence, ; a stop should be put to this business, ; further debate--house refused to concur, ; explanation and views of mr. pinckney, ; reason of the house for refusal, . _presents to a minister's wife._--letter from col. humphrey, ; referred to a select committee, . _presidency_, vacancy in, _see index_, vol. . _president's election disputed in the senate._--resolution for the appointment of a committee to inquire what provisions should be made by law to decide &c., considered, ; if any thing is done it must be by an amendment to the constitution, ; dangerous practice to endeavor to amend the constitution by making laws for it, ; legislature has a right to make such provision as may be necessary, ; questions to be considered with regard to _electors_, ; do. ; committee appointed, ; bill reported, ; postponed, . _in the house_, bill considered, ; motion debated, ; postponed, ; message from senate disagreeing to amendments, ; house adhere, ; bill lost, . pritchett, thomas, a manumitted slave, petition of, . _proceedings_ in senate on ratification of convention with french republic, . _protection_ of trade, _see appropriations_, naval. _public lands._--_see index_, vol. . _public printing._--report in favor of appointing a public printer considered, ; various objections urged, ; reasons in favor stated, ; lost, . q _quakers' memorial._--_see petitions._ r randolph, john, representative from virginia, , , , ; on petition of free blacks, ; on the case of jonathan robbins, ; on the medal to captain truxton, ; moves $ for furniture for president, ; on a mausoleum to washington, , ; on jurisdiction over district of columbia, ; on public printing, ; on the apportionment bill, ; on library of congress, ; on reduction of the army, ; on resolutions relative to judiciary, ; in favor of repeal of judiciary establishment, ; against reading the letter of mchenry, ; on motion to establish the mint, ; on the call for papers relative to the cession of louisiana, , , , , ; on amendment to the bankrupt act, , ; on petition of united states judges, , ; against taking up resolution relative to french spoliations, ; on jurisdiction over the district of columbia, . _ratio of representation, in the senate_, bill to fix, considered, ; moved to strike out , and insert , , ; unless amended , persons in delaware will have no representative, ; equity of the case, ; other reasons urged, ; motion to strike out lost, ; moved to allow one member for every fraction of , , ; reasons for the motion, ; lost, ; bill passed, . _in the house._--resolution to fix the ratio at , , ; various numbers proposed, ; arguments in favor of a small and of a large ratio, ; resolution carried, ; move to strike out , and insert , , ; object to lessen the size of the districts that electors might know the elected, ; smallest ratio preferred as a matter of principle, ; delaware an extreme case, ; small states materially affected by the ratio in the bill, ; views of the people, ; experience of the states, ; large representation relied on for safety and economy, ; further debate, ; heretical and improper to consider the house as the representative of the people, ; the members of the house are the representatives of the states in proportion to their numbers, ; the apportionment is among the states, not among the people, ; further debate, ; motion to strike out eight and insert nine as the representation from maryland, ; motion carried, . _see index_, vol. . read, jacob, senator from south carolina, , , , , , ; elected president _pro tem._ of the senate, . read, john, representative from massachusetts, , , , , , ; on increase of duties on sugar, ; on breach of privilege, . read, nathan, representative from massachusetts, , , . _report_ on memorial of anna de neufville, ; of secretary of state, relative to affairs with mediterranean powers, ; on petition of widow of hanging maw, ; on petition of daughters of count de grasse, ; on the matthew lyon affair, ; of committee on privileges on griswold and lyon case, ; on petition of stephen cantrell, ; on remonstrance of georgia, ; on petitions for repeal of alien and sedition law, ; on measures in relation to breach of privilege, , ; in senate on mausoleum for washington, ; of committee of house on credentials, ; of committee on unfinished business, ; on credentials of members, ; of committee on state balances, ; of committee on remonstrance of georgia, ; on the wyoming controversy, ; on state balances, ; in senate on memorial of united states judges, ; of committee on case of van ness, . _resolution_ in senate relative to joint meeting of two houses to count votes for president, ; of relief in lands to canadian refugees, , ; of andrew jackson on petition of hugh l. white, ; on direct taxes, ; to notify vice president jefferson of his election, ; relative to lands of live-oak and red timber, ; relative to grant of lands to john c. symmes, ; relative to suability of the states, ; relative to statements from war department, ; relative to gen. lafayette, ; relative to defensive measures, ; relative to printing the laws in the german language, ; ordering newspapers for senators, ; authorizing minister to spain to receive presents, ; relative to gen. kosciusko, ; relative to attack of matthew lyon on roger griswold, ; on quakers' memorial, ; relative to disorderly behavior of roger griswold and matthew lyon, ; of otis, relative to case of griswold and lyon, ; relative to claim of amy dardin, ; on relations with france, ; that no alien shall ever be a citizen, ; relative to direct taxes, ; relative to naturalization, ; relative to presents to ministers by foreign courts, ; relative to relations with france, ; giving bounty on capture of french armed vessels, ; relative to remonstrance of georgia, ; for the expulsion of matthew lyon, ; relative to prints of john trumbull, ; of senate relative to death of washington, ; of house sent to senate on death of washington, ; of house relative to commemoration of death of washington, ; in senate on disputed presidential elections, ; of senate to hear eulogium on washington, ; of senate relative to breach of privilege, ; relative to prosecution of william duane, ; relative to prints of john trumbull, ; to grant w. h. harrison franking privilege, ; in house relative to death of washington, ; of respect to memory of washington, ; relative to amendment to constitution, ; in case of jonathan robbins, - ; relative to western lands, ; relative to conduct of officers and crew of frigate constellation, ; for a medal to capt. truxton, - ; on lake superior lands, - ; relative to lands given in satisfaction of judgments, ; on appropriation for holding indian treaties, ; relative to additional revenue, ; relative to an additional army, ; relative to the memory of washington, ; relative to counting votes for president, ; of old congress relative to statue to washington, ; relative to election of president, , ; relative to the judiciary, ; relative to lieut. sterret, officers, and crew, ; relative to imprisonment for debt, ; on decease of narsworthy hunter, ; relative to french spoliations, ; relative to funeral expenses of members, ; relative to free navigation of mississippi, ; in senate relative to impeachment of john pickering, ; calling for papers relative to removal of deposit at new orleans, ; relative to j. p. van ness, ; calling for information relative to the cession of louisiana, ; relative to cession of louisiana, ; relative to the navigation of the mississippi, ; do. considered in secret session, ; for monuments to various officers and others, ; for a monument to gen. gates, ; relative to pay of late u. s. judges, ; relative to french spoliations, ; on receding to the respective states jurisdiction over the district of columbia, ; relative to ohio school fund, . _revenue_ statements, reports on, made, . _revenue_, collection of; resolution for information relative to expense of collecting the revenue, &c., considered, ; great objection to internal taxes; the expense of collection, ; information sought, that it may be reduced, ; expense of collecting other taxes, ; the collection of some cost more than the collection of other taxes--discrimination required, ; statements of the report of the secretary of the treasury, ; further debate, ; the intention seems to be to repeal the internal taxes, right or wrong, ; further debate, ; motion lost, . _rhode island._--vote for president, , . _rhode island._--_see index_, vol. . richards, john, representative from pennsylvania, . robbins, jonathan, case of, ; papers in, ; resolutions of mr. bayard, ; do. of mr. livingston, ; resolutions of mr. livingston taken up, ; _note_, ; statement of facts, ; record of the court should be obtained, ; kind of evidence to be adduced, ; point to be gained, ; motion to discharge committee, not sufficient evidence before them, ; if interference of executive improper, it did not proceed from improper motives, ; claim of citizenship and protection by robbins, ; further debate relative to rising of the committee, , , ; motion negatived, ; resolutions calling on president for copy of the proceedings of the court considered, ; is there any such evidence as will throw light on the case? ; all the evidence necessary should be obtained, ; extraordinary resolution--was the president clerk of the court? ; the resolution must be negatived, and the debate on the merits go forward, if the end is to be reached this session, ; motion will operate as a discharge of the committee, ; further debate, ; substitute moved requiring speaker of the house to obtain the proceedings of the court, ; postponement moved, ; object of the resolution, a charge upon the president and upon the district judge, ; conduct of both called into view, and the reprehensibleness defended on the testimony before the house, ; what do the resolutions amount to, ; question of great importance to the american people and to the reputation of the house, ; doubtful if the president has acted with propriety or not, ; particulars of the case, ; further debate, ; motion to postpone negatived, ; adoption of the resolution negatived, ; mr. livingston's resolutions considered, ; record of circuit court of new jersey, ; change of conduct in the executive, ; committee disagree with mr. livingston's resolutions, ; will the house concur, considered, ; conduct of the executive cannot be justly charged with the errors imputed to it, ; the case within the th article of the treaty between u. s. and great britain, ; was the murder committed within the jurisdiction of great britain, ; extent of a nation's jurisdiction examined, ; jurisdiction of a nation at sea, ; illustrations, ; piracy, , ; application of the treaty, ; act of congress considered, ; does not comprehend case of murder committed in a foreign ship of war, ; english cases cited, ; indictments found at trenton, ; bearing on jurisdiction, ; secondly, the case was a case for executive not judicial decision, ; this point examined, , , , , ; the president, in exercising this power and in performing the duty it enjoins, has not committed an unauthorized interference with judicial decisions, ; this point examined, , ; house agree with committee of the whole in their disagreement to the resolutions, ; committee discharged from further consideration, . ross, james, senator from penn., , , , , , , ; on disputed presidential elections, ; on the mississippi question, . _see index_, vol. . _rules for the election of president_ reported, . rutherford, john, senator from new jersey, , , . _see index_, vol. . rutherford, robert, representative from va., ; on the address to the president, ; on relief to sufferers by fire at savannah, ; on petition of hugh l. white, ; on liability of u. s. to a state for war expenses, ; on the petition of manumitted slaves, ; on compensation of president and other officers, ; on increase of duties on sugar, ; on increase of duties on salt, ; on the accommodation of the president, , . _see index_, vol. . rutledge, john, jr., representative from south carolina, , , , , , ; on answer of house to president adams' st message, ; on exempting bank notes from stamp duties, ; on answer to president's message, ; on the quakers' memorial, , ; on naval expenditure, ; on report on the quakers' memorial, ; on the limits of georgia, ; on relations with france, ; on the bill to raise a provisional army, , ; on the naturalization laws, ; on presents to ministers by foreign courts, ; on intercourse with france, ; on the capture of french vessels, ; on petition of free blacks, , , , , ; on the case of jonathan robbins, , ; on the bill against the slave-trade, , ; on reporting the debates, ; for a mausoleum to washington, ; on a bill relative to district of columbia, ; on repeal of internal taxes, ; on the collection of internal revenue, ; on reducing duties on imports, ; on imprisonment for debt, ; against repeal of judiciary establishment, ; in favor of relief for french spoliations, ; on a public discussion of cession of louisiana, ; on taking up the french spoliation subject, . s _savannah, relief to._--resolution to afford some relief to the sufferers by the late fire at savannah, debated, ; most calamitous event of the kind in united states--relief was granted to sufferers by fire at st. domingo--if it was just in case of foreigners, it was equally so in the case of citizens, ; if the unfortunate have any claim on the government, none could have greater, ; the city is a wide waste of ruin, ; if relief is granted in this case, it should be also to new york and charleston, and other places, ; no occasion for insurance companies if government makes good these losses, ; the principle a bad one, ; this is a distinct case, ; the loss unexampled--only a contribution is asked, ; it will not serve as a precedent, ; motion to go into committee of the whole lost, ; motion to discharge the committee made, ; more respect due to the feelings of the sufferers than to dispose of the subject without discussion, ; the legislature of pennsylvania had contributed, ; $ , were given to sufferers in st. domingo, ; relief granted to the daughters of count de grasse, ; too tenacious about approaching the treasury, ; duty of government to relieve such distress, ; what would $ , be when divided among all the people of the union, ; motion to go into committee of the whole carried, ; neither the act for relief to sufferers in st. domingo, nor to the daughters of count de grasse, in point, ; let gentlemen put their finger on that part of the constitution which gave the house power to grant relief, ; if the united states become underwriters for the whole union, where shall the line be drawn? ; the constitution does not authorize any such grant, ; our duty to grant relief from humanity and from policy, ; no difference between the constitution of the united states and the constitution of pennsylvania, yet the house of the latter had voted unanimously, ; members, as individuals, can subscribe, but it is not constitutional to afford relief from the treasury, ; if the principle is adopted it should be general--every sufferer has an equal claim, ; motion to add lexington to savannah, ; the house cannot undertake to make good individual misfortunes, ; but the line is distinct between individual and national, and this is a national calamity, ; savannah and lexington should not be united, ; the former is an important place, ; lexington had not asked for relief, ; our duty to pay claims of distressed soldiers first, ; this amendment designed to defeat a laudable object, ; this case a sharp conflict between humanity and the constitution, ; amendment lost, ; the greatness of the calamity is admitted and the disposition to relieve entire--a written constitution, however, prescribes the manner in which money shall be drawn from the treasury, yet it is impossible to obtain absolute directions in every case, ; the objects are specified in the eighth section, yet many laws have passed not exactly specified, ; the constitution cannot be administered under so rigorous and mechanical a construction, ; the principle is the thing aimed at for establishment, ; it is not what generosity and humanity require, but what the constitution and duty require, ; disagreed to in committee, . schureman, james, representative from new jersey, , , ; senator from new jersey, , ; resigns seat in senate, . _see index_, vol. . _seat of government_, resolution relative to proper measures to be adopted preparatory to removal of, ; bill to make further progress for removal and accommodation of the government considered, ; motion to fill blanks for expenses, . _see index_, vol. . sedgwick, theodore, senator from massachusetts, , , ; elected president _pro tem._ of senate, ; representative from massachusetts, , ; elected speaker, ; speech, ; acknowledges thanks of house, . _see index_, vol. . _seditious practices_, bill for restraint of, ; details of do., ; bill for the punishment of certain crimes against the united states considered, ; its outlines, ; motion to reject it, ; necessity of the law, ; extensive combinations exist, ; freedom of the press an example, ; effects of such liberty in france, ; true meaning of liberty of the press, ; its extent in this country, ; it is striking at the root of a republican government to restrict the use of speaking and writing, ; features of the bill, ; the bill in direct opposition to the constitution, ; operation of such laws, ; does the situation of the country require any law of this kind, ; the bill has two objects--to punish conspiracies and calumnies against the government, ; question on rejection of the bill lost, ; question on its passage, ; not within the powers of the house to act on this subject, ; consider its effects, ; had the constitution cognizance of these offences, and had its amendments taken that away? ; this is the commencement of a system which may be extended to religious establishments, ; prosecutions for libel cannot take place under general government, ; further debate, ; bill passed, . _resolution that it is inexpedient_ to repeal the sedition law considered, ; objectionable clause, ; the constitutional argument in relation thereto, ; power of congress over the press, ; is it proper for congress to possess the power claimed for it, ; arguments in support of it examined, , , , ; resolution carried, ; question that the bill for repeal of part be engrossed, ; grounds upon which the original bill was passed, ; experience of the last two years, ; further remarks, ; engrossment refused, . _senate._--reply to the valedictory of john adams as vice president, ; special session at inauguration of john adams, ; meets the house to count votes for president, ; answer to president adams' first message, ; adjournment of, at st session, th congress, ; answer to president's message, d session, th congress, ; legislative session adjourned, ; executive session, ; adjourned, ; answer to president's message at d session, th congress, ; form of warrant of, to be issued for apprehension of william duane, ; adjournment st session, th congress, ; message to house on eulogium to washington, ; answer to president's message d session, th congress, ; answer to address of jefferson on retiring from vice presidency, ; special session convened march , , ; secret session to ratify convention with french republic, ; adjourns st session, th congress, . sewall, samuel, representative from massachusetts, , , , , ; on expatriation, , , ; on tax on lawyers, ; on exempting bank notes from stamp duty, ; on the quakers' memorial, ; against weekly licenses to distillers, ; on naval expenditure, ; on breach of privilege, , ; on the case of griswold and lyon, ; on relations with france, ; on a provisional army, ; on establishing the navy department, ; on the naturalization laws, , , ; on a provisional army, ; on the persons to be excluded from citizenship, , ; on bill relative to treatment of alien enemies, , , ; on instructions to armed vessels, ; on a marine corps, ; on intercourse with france, ; on the abrogation of the treaty with france, , . sheafe, james, senator from new hampshire, . shepard, william, representative from massachusetts, , , , , , , ; on military appropriations, ; on the bill relative to the protection of commerce, . sherburne, john s., representative from new hampshire, ; on the address to the president, ; on the accommodation of the president, . _see index_, vol. . sinnickson, thomas, representative from new jersey, , , . _see index_, vol. . sitgreaves, samuel, representative from pennsylvania, , , ; on the address to the president, , , ; on land for canadian refugees, ; on kidnapping negroes, ; on the petition of manumitted slaves, ; on the accommodation of the president, , , ; on naval appropriations, , , ; on liberation of lafayette, ; on answer of house to president adams' first message, , ; on expatriation, , ; on tax on lawyers, ; on exempting bank notes from stamp duty, , ; on foreign intercourse, ; on the case of griswold and lyon, , , ; on relations with france, ; on the naturalization laws, , , ; on a new census for a direct tax, ; on admission of aliens to citizenship, ; on letters of marque, ; on the abrogation of the treaty with france, , . _see index_, vol. . _slave act_, mississippi, for bringing slaves into, . _slavery, prohibiting_ it in a territory, _see territories_. _slavery, prohibition_ of, in a territory, debate on, . _slave trade, &c._, bill from senate to prohibit carrying on, considered, ; manner of the passage of the former act, ; conveniences of the commerce, ; further debate, ; most defective bill, ; motion to refer to a select committee, ; too late in the session, ; the new england states should enjoy the profit of this traffic as well as the english, ; present law does not stop the trade, ; its extent, ; bill committed, ; bill passed, . _slavery and slave trade._--_see index_, vol. . _slaves emancipated_ from west indies, memorial respecting, . skinner, thompson j., representative from massachusetts, , . smilie, john, representative from pennsylvania, , , , ; on petition of free blacks, ; against a mausoleum to washington, ; on bill relative to district of columbia, , , ; on the apportionment bill, ; on repeal of internal taxes, ; on imprisonment for debt, ; on call for papers relative to cession of louisiana, ; on amendment to the bankrupt act, ; on compensation to the ex-united states judges ; on taking up the french spoliation subject, ; on jurisdiction over the district of columbia, ; on jurisdiction over the district of columbia, . _see index_, vol. . smith, daniel, senator from tennessee, . smith, isaac, representative from new jersey, ; on kidnapping negroes, . smith, israel, representative from vermont, , , . smith, jeremiah, representative from new hampshire, , ; on the accommodation of the president, ; on a direct tax on slaves, . smith, john, representative from new york, , , . smith, john, representative from virginia, , . smith, john cotton, representative from connecticut, , , ; on a mausoleum to washington, . smith, josiah, representative from massachusetts, , . smith, nathaniel, representative from connecticut, , , , ; on naval appropriations, ; on expatriation, ; on foreign intercourse, ; on relations with france, ; on the naturalization laws, ; on a provisional army, ; on bill relative to treatment of alien enemies, . smith, samuel, representative from maryland, , , , , , , , ; on a direct tax on slaves, ; on increase of duties on sugar, , ; on _tacking_ bills, ; on indirect taxes, ; on arming merchant vessels, , ; on relations with france, ; on a provisional army, ; on establishing the navy department, ; on the naturalization laws, ; on temporary direct tax, ; on direct taxes, ; on abrogation of treaty with france, ; on intercourse with france, ; on intercourse with france and st. domingo, , ; on the law of retaliation, ; on reporting the debates, ; on protection against the barbary powers, ; on the apportionment bill, ; on the mediterranean trade, ; on french spoliations, , ; on call for papers relative to cession of louisiana, , , ; on amendment to the bankrupt act, . _see index_, vol. . smith, samuel h., memorial to house relative to reporting the debates, ; letter to senate respecting reports of their proceedings, . smith, william, representative from south carolina, , , , ; on address to the president, , , , , , ; on relief to sufferers by fire at savannah, , ; on kidnapping negroes, , ; on liability of united states to a state for war expenses, ; on printing expenditure, ; on the petition of manumitted slaves, , ; on the purchase of a site for a navy yard, ; on increase of duties, ; on naval appropriation, , , ; on indirect taxes, ; on military and naval appropriations, ; on the military establishment, , , ; on naval appropriations, , , ; on military and naval appropriations, ; on liberation of lafayette, ; answer of house to president adams' st message, , , ; offered resolutions relative to defensive measures, , ; on resolutions relative to defensive measures, ; to provide further naval force, , ; on expatriation, , , ; on tax on lawyers, ; on exempting bank notes from stamp duty, , , ; on duty on stamps, ; on additional duty on salt, ; appointed minister to portugal, . _see index_, vol. . southard, henry, representative from new jersey, , ; against resolution relative to extinguishing state balances, ; to postpone resolution relative to the mint, ; on jurisdiction over the district of columbia, . _south carolina._--vote for president, , ; militia, vindication of, . spaight, richard dobbs, representative from north carolina, , ; on intercourse with france, . sprague, peleg, representative from new hampshire, , ; on intercourse with france, . sprigg, richard, junr., representative from maryland, , , , ; on a national university, , ; on relief to sufferers by fire at savannah, ; on compensation of president and other officers, ; on relations with france, , . sprigg, thomas, representative from maryland, . _see index_, vol. . stanford, richard, representative from north carolina, , , , , , , . stanley, john, representative from north carolina, , ; against repeal of judiciary establishment, ; on the reading the letter of james mchenry, . stanton, joseph, junr., representative from rhode island, , . _state balances_, report of committee on ; resolution for a committee to inquire into expediency of extinguishing certain balances due from states, &c., ; debate thereon, , , ; motion lost, ; report of committee, ; bill to extinguish claims of united states against certain states considered, ; some of the states believe they were wronged in the settlement made, ; rule adopted for apportioning the expenses of the war considered, ; the original contract, ; effect of adopting an enumeration of inhabitants made seven or eight years after the war, ; the rule unjust and unequal, ; what has new york done? ; further debate, ; bill ordered to be engrossed, ; bill postponed, . _stenographer_ to the senate, admission of, ; to the house, debate on, , . sterret, lieut., his officers and crew, . stewart, john, representative from pennsylvania, , , . stockton, richard, senator from new jersey, , , , . stoddert, benjamin, letter of to commanders of armed vessels, . stone, david, representative from north carolina, , , , ; on the repeal of the judiciary establishment, . stratton, john, representative from virginia, , . strudwick, william, representative from north carolina, . _suability of states._--on report authorizing the president to make inquiry if certain states adopted proposed amendment to constitution on suability of states, ; question whether eleven states ratifying the ten amendments in , should be considered three-fourths of fourteen, or whether a division of states could be made? ; the fourth part of fourteen is three and a half, if a state cannot be divided, then four states must be taken instead of three and a half as one-fourth of fourteen, ; eleven states have ratified the amendments, but are not twelve of the fourteen required, ; discussion of the subject, , . sumter, thomas, representative from south carolina, , , , ; senator from south carolina, , , ; vindication of south carolina militia, . swanwick, john, representative from pennsylvania, , , ; on the address to the president, , , ; on kidnapping negroes, , , ; on the petition of manumitted slaves, ; on the purchase of a site for a navy yard, ; on increase of duties on sugar, , ; on naval appropriations, , , , , ; on liberation of lafayette, ; on answer of house to president adams' st message, ; on defensive measures, , ; on a naval armament, ; moves ten dollars duty on attorney's licenses, ; on exempting bank notes from stamp duty, ; on the quakers' memorial, . _see index_, vol. . swift, zephaniah, representative from connecticut, . _see index_, vol. . symmes, john c.--contract for land, ; particulars of his case, ; case of, . t taliaferro, benjamin, representative from georgia, , . taliaferro, john, representative from virginia, , . talleyrand, letter to american minister in paris, . tallmadge, benjamin, representative from connecticut, , . tattnall, josiah, senator from georgia, , , , . _taxes, direct and indirect_, proposition for a tax on land and on slaves, ; should be separated, ; associated together in order to do justice, and conform to the established usage of a large tract of country where one tax without the other was objectionable, ; the resolution for a tax on land carried, . _direct tax on slaves considered_, ; reason for bringing this species of personal property under view whilst all other personal property unnoticed, ; slaves are laborers--not right to vote to tax laborers, ; a tax on slaves would lighten the tax on land in the southern states--would the tax on land be equal? ; a direct tax should be equal as possible, ; a tax on slaves the most productive tax in the southern states, ; exact equality impossible, ; personal property in the southern states should not bear a part of the burden whilst exempted elsewhere, ; the objections can be completely obviated, ; enumeration of slaves adds to the expense, ; propriety of taxing personal property in one state and not in another, ; the south is ready to pay the tax on slaves, ; those who oppose the tax on slaves oppose all direct taxes, ; motion to tax slaves carried, ; _note_, ; income and expenditure considered, ; doubtful if a majority of the country in favor of the measure, ; no deficiency in the revenue at present to make additional taxes necessary, ; great argument for direct taxes is the uncertainty of a revenue from commerce, ; receipts of , ; expenses of , ; receipts and expenditures of , ; for a sufficiency of revenue for direct taxes required, ; a plan for direct taxes should be formed in case of extremity, ; revenue for , ; estimated expenses for , . _bill for stamp duties_, ; do. considered, ; moved to add certificates of naturalization, ; naturalized persons cannot refuse to pay a small tax for the right of citizenship, ; tax would fall heavy on persons who came here to live by their labor, ; amendment carried, . _moved to tax lawyers' licenses_ $ , ; carried, ; moved to extend the tax to lawyers in state, as well as united states courts, ; lawyers in some states already highly taxed, ; if a tax of this kind is right, it might be extended to any other officer of state governments, ; not unconstitutional, ; state lawyers a fair object for taxation--motion withdrawn, . _moved to tax deeds of conveyance_, ; this would clash with state jurisdiction, ; the tax a good and profitable one, ; interferes with state governments, ; further debated, ; motion lost, . _clause exempting bank-notes_, moved to strike out, ; all notes should be placed on the same footing, ; subject too important and intricate for this session, ; object is to tax the right an individual has of transferring his property and the evidences of it, ; no objection to the principle, but to the convenience of the thing, ; it is said, do not meddle with corporations, ; it cannot be proved that stamping bank notes will embarrass their circulation, ; motion essentially just and right, ; operation of the tax considered, ; objections considered, ; foreign banks commute with their governments, ; the introduction of this principle will destroy the bill, ; analogy between private notes and bank notes? ; great difficulties attend its operation, ; no danger of a run on a bank, ; a beginning should be made, ; not the intention of opponents to screen the moneyed interest, ; how shall the tax be arranged, ; commutation can be made, ; amount of the tax less than one per cent., ; difference between bank and individual notes, ; an estimate showing the operation of the tax on banks, ; further debate, ; bill passed, ; _note_, . _duties on distilled spirits_, and on stills under debate, ; proposition to allow to distillers weekly licenses, ; designed to accommodate distillers from fruit, ; distillers from fruit pay less duty than distillers from grain, ; this proposition will give them an unfair advantage, ; other objections in detail, ; most distillers of peach-brandy now excluded under present law from distilling early fruit, ; reason in favor at length, ; capacity of peach stills, ; motion carried, ; present law on entry of stills, ; four cents per gallon on weekly licenses adopted, ; bill of senate referred to a select committee, ; resolution to inquire into the expediency of repealing laws laying duties on stills, distilled spirits, &c., considered, ; time to commence proceedings on this subject, ; it reduces the revenue, ; reasons for referring the subject stated, ; other subjects to be decided before this should be, ; motion seeks information, ; should be taken up at once, ; president said the taxes might be dispensed with, if expenses were reduced, ; information needed, ; further debate, , ; reference carried, . _resolution to raise additional revenue annually_ by tax on land, houses, and slaves, to be apportioned according to the last census, considered in committee, ; moved to strike out last census, ; proper to have new census before the tax was assessed, ; great inconvenience thereby incurred, ; debate upon the census for taxation, ; on report to the house moved to strike out "annually," ; the tax not wanted for permanent revenue, but to meet present exigencies, ; examination of present revenue, ; the present revenues are equal to the expenditures, including redemption of public debt, except in case of war, ; imposts and tonnage yielded a million more than the estimate, ; arguments are presented as if a state of profound peace prevailed, and the defences of the country of no importance, ; course of members on this subject, ; censure of the house by members, ; debate adjourned, ; motion to strike out "annually" withdrawn, and limitation moved, ; if laid for a number of years, the tax will be more unpopular, ; it depends on a contingency whether the tax will be wanted or not, ; it is a new tax, unsatisfactory to some parts, and should be of short duration, ; no question about the propriety of levying a direct tax--only difference related to time of operation, ; fears of the member from pennsylvania, ; two reasons against striking out the word "annually," ; amendment lost, ; word "annually" struck out, ; bill providing for the valuation of houses and lands and enumeration of slaves read a third time, ; the tax will bear hard on kentucky, money is so scarce there, ; such is the case of tennessee, ; both states have many advantages in respect to this tax, ; the money was necessary, and the law as good as it well could be made, ; loans and taxes the only resource, ; no other objects so suitable for taxation, ; fears respecting the ability of kentucky and tennessee not be realized, ; tax not just and equal, ; every species of property should be taxed, ; bill passed, ; bill to amend act for laying and collecting direct tax considered, ; repeals clause for redemption of land sold for unpaid taxes, ; this clause inoperative on account of its expense, ; will be a hardship to non-residents, ; non-payment had arisen in southern states from a want of collectors, ; committee rose, . tazewell, henry, senator from virginia, , , ; decease of, . _see index_, vol. . tazewell, lyttleton w., representative from virginia, . _tennessee_, vote for president, , ; admission of, _see index_, vol. . tenney, samuel, representative from new hampshire, , , . _territories._--subject of fixing the limits of georgia, and erecting the mississippi territory considered, ; amendment proposed, "after the consent of the legislature of georgia shall have been obtained," ; claim of the united states to this territory examined, ; to proceed without consent of georgia unconstitutional, ; united states possess the right, ; who is the judge? ; amendment will defeat the bill, ; shall the territory remain defenceless? ; question of right examined, ; point of right be settled hereafter, ; terms required by georgia, ; proposed measure absolutely necessary for the people of that territory, ; arguments so far do not show the right of the united states, but only the convenience of the measure, ; advantages of the measure to georgia as a protection against the indians, ; most proper that the amendment should be adopted, ; the only reason for the amendment is, that if the bill pass without it, offence will be given to georgia, ; neither party has governed the territory, and georgia cannot take offence in we hold it till the dispute is settled, ; particulars relative to the territory, ; georgia always disposed to cede, ; further discussion, ; amendment lost, . _clause providing that slavery shall not be forbidden_, motion to strike out, ; clause very proper in the north-western territory, but very improper in the mississippi territory, ; it would banish all the settlers, and exclude those intending to go there, ; congress should so far respect the rights of humanity as not to legalize slavery any further than it now exists, ; is it proper on every occasion to bring forward the southern states in an odious light? ; an immediate insurrection will take place if this is adopted, ; the motion will not be withdrawn, ; the tendency of this motion is not really to further the rights of man, ; it is a serious attack on the property of the country, ; the amendment should not be rejected on the ground of jurisdiction, ; only objection to the amendment is with regard to the people settled there, ; interest of the united states to reject the amendment, ; spreading the blacks over the country, ; question negatived, ; _note_, . _report on the credentials_ of the delegate from the mississippi territory, ; georgia has the right to the soil, and the laws of congress for the government of the territory are void, ; the delegate has no right to a seat, ; no further proceedings should take place till the dispute is settled, ; the only question is whether the member is duly chosen, ; wait till the dispute is settled, ; let the report lie on the table, and the member keep his seat according to former practice, ; sufficient facts to decide the case without prejudicing the claims of georgia, ; report agreed to, . thatcher, george, representative from massachusetts, , , , , , , ; on the address to the president, ; on the petition of manumitted slaves, , ; on answer to president adams' first message, , ; on the quakers' memorial, , ; on breach of privilege, ; on report on quakers' memorial, ; on the case of griswold and lyon, , ; on the limits of georgia, , , , ; on presents to ministers by foreign courts, ; on petition of free blacks, , , , ; on reporting the debates, . _see index_, vol. . thomas, david, representative from new york, , ; in favor of a bill to extinguish state balances, . thomas, john chew, representative from maryland, , . thomas, richard, representative from pennsylvania, , , , , , . thompson, john, representative from new york, , . thompson, mark, representative from new jersey, , , , . _see index_, vol. . thompson, philip r., representative from virginia, , . tichenor, isaac, senator from vermont, , . tillinghast, thomas, representative from rhode island, , , , . _title_, of president, &c., _see index_, vol. . tracy, uriah, senator from connecticut, , , , , , , , ; on breach of privilege, , , ; elected president of senate, _pro tem._ . _see index_, vol. . _treason and sedition_, bill to define, . _treasury department_, bill providing that the secretary shall lay before congress annual report with plans for improving revenue, &c., ; house only has right to originate money bills, ; not senate or secretary, ; ordered to third reading, . _see index_, vol. , _executive departments_. _treaty with great britain_, motion that no person be delivered up under the th article, ; debated, ; lost, . _see index_, vol. . trigg, abram, representative from virginia, , , , , , , . trigg, john, representative from virginia, , , , , , . trumbull, john, presents to the senate two prints, ; letter to house, offering two prints, ; _note_, . truxton, captain, resolution to present a medal to, ; no official information received on the subject, ; resolution does not go far enough, ; resolution to call for information adopted, ; report of secretary of the navy in accordance therewith, ; resolutions considered, ; was it the duty of the commander of the constellation to persist in the chase, and compel to action a ship of such superior force? ; rash conduct, ; law of congress prescribes duty of naval commanders, ; nothing in their conduct but what was highly laudatory, ; frigates were constructed for protecting commerce--was this protecting commerce, to reduce his ship to a wreck? ; resolution carried, . u _united states judges_, memorial of to senate, ; petitions of, . upham, george p., representative from new hampshire, , . v van allen, jonathan e., representative from new york, , , , . _see index_, vol. . _van cortlandt, philip_, representative from new york, , , , , , . van horn, isaac, representative from pennsylvania, , . van ness, john p., representative from new york, , ; on the apportionment bill, ; case of, considered, ; the member of the house has exercised the authority of a major of militia, under the authority of the united states, and thereby forfeited his seat, resolution to inquire considered, ; important as deciding a principle, ; resolution should go to committee on elections, ; reference ordered, ; report of committee, ; explanation of van ness, ; resolutions unanimously adopted; on the case of van ness, , . van rensselaer, killian k., representative from new york, , . varnum, joseph bradley, representative from massachusetts, , , , , , , , ; on the petition of manumitted slaves, ; on military appropriations, , ; on military and naval appropriations, ; on tax on lawyers' licenses, ; on the georgia limits, ; on temporary direct tax, ; on bill relative to protection to commerce, ; on a marine corps, ; on direct taxes, ; on the case of jonathan robbins, ; on repeal of internal taxes, . _see index_, vol. . venable, abraham, representative from virginia, , , , ; on relief to sufferers by fire at savannah, ; on lands for canadian refugees, ; on naval appropriations, , , , ; on answer of house to president adams' first message, ; on expatriation, ; on exempting bank notes from stamp duty, , ; on the case of griswold and lyon, ; on the naturalization laws, , ; on presents to ministers by foreign courts, ; relative to letters of marque, . _see index_, vol. . _vermont._--vote for president, , . _veto_ of army bill, by president washington, . vining, john, senator from delaware, , . _see index_, vol. . _virginia._--vote for president, , . w wadsworth, peleg, representative from massachusetts, , , , , , , . _see index_, vol. . walker, benjamin, representative from new york, . waln, robert, representative from pennsylvania, , , ; presents petition of free blacks, , ; on petition of free blacks, , , ; on the bill prohibiting the slave-trade, . washington, reply to address of senate, ; present at the inauguration of john adams, ; _note_ ; vote for, as president, in , ; vetoes army bill, ; administration of, _note_, ; letter accepting lieutenant-generalship, ; as lieutenant general, visits the house, ; mrs., reply to resolutions of congress, ; his death announced to house, ; memory of, resolution on, ; bill for erecting mausoleum reported, ; discussion, ; bill passed, ; in senate, bill to erect mausoleum, considered, ; amendments agreed to, ; bill passed, ; bill to erect a mausoleum considered, ; first section, ; amendment moved to erect a monument, ; a mausoleum preferable to a monument, ; propriety of a monument, ; a mausoleum more imperishable, ; the adoption of the amendment equivalent to rejecting every plan, ; expense of the proposed measure, ; difference of expense between the two measures, ; proceedings of last session, ; bill recommitted, ; proceedings of congress in ; bill reported for a mausoleum as before, excepting a difference in materials, ; various amendments proposed, ; expense discussed, ; blank filled with $ , , ; bill on third reading, ; equestrian statue more proper than a mausoleum, ; suitableness of a mausoleum, ; the idea that a mausoleum would be equal to the character of washington preposterous, ; a tedious and useless debate, ; a departure from the original plan a violation of the feelings of mrs. washington, ; further debate, ; bill ordered to be engrossed, ; bill passed, ; amendments of senate considered, ; house agree, . _see index_, vol. , _washington_. _washington city_, first meeting of congress at, . watson, james, senator from new york, , . wells, william hill, senator from delaware, , , , , ; on the resolutions relative to the right of the united states to the free navigation of the mississippi, . _western lands_, resolutions relative to, . wheaton, joseph, elected sergeant-at-arms to house, , . white, hugh lawson, petition of, ; report of committee on, ; claim of, for services against the indians, ; committee report the expedition as undertaken without authority from the president, under laws of the united states, but the indians highly aggressive, ; _note_, ; expedition just and necessary, ; indians carried the station and threatened to carry the seat of government, ; the rations found for the troops on the expedition had been paid for, and no reason exists why the whole expense should not be paid, ; if the expedition was unconstitutional, it should not affect the soldier who was obliged to obey his superior, ; if this claim is allowed, it establishes a principle for all the militia in that expedition, ; the expedition was a necessary one, ; congress were in session, and received information, but took no order thereon, ; the constitution prescribes that if a state is actually invaded, it may engage in war; this is a case coming within the constitutional limits, ; _note_, ; referred to a select committee, ; _note_, . white, right rev. bishop, appointed chaplain to senate, . _see index_, vol. . white, samuel, senator from delaware, , , ; on the apportionment bill, ; on the mississippi question, . williams, john, representative from new york, , , , ; on the address to the president, ; on compensation of president and other officers, ; on increase of duties on sugar, , ; on the accommodation of the president, ; on the military establishment, ; on answer of house to president adams' first message, ; on arming merchant-vessels, ; on a naval armament, ; on relief to daughters of count de grasse, ; on expenditure for the naval service, ; on the case of griswold and lyon, , , and ; on the limits of georgia, ; on relations with france, ; on establishing the navy department, , ; on a new census for a direct tax, ; on a direct tax, ; on admission of aliens to citizenship, ; on instructions to armed vessels, ; on the bill relative to protection to commerce, ; on direct taxes, ; on intercourse with france, . _see index_, vol. . williams, lemuel, representative from massachusetts, , , , . williams, robert, representative from north carolina, , , ; on a tax on lawyers, ; advocates weekly license to distillers, ; on the griswold and lyon case, ; on establishing the navy department, ; on presents to ministers by foreign courts, ; a bill relative to treatment of alien enemies, ; relative to letters of marque, ; relative to state balances, ; on considering the french spoliations, . woods, henry, representative from pennsylvania, , , , . wooster, general, and others, bill relative to, . wright, robert, senator from maryland, , ; on memorial of united states judges, . wynn, thomas, representative from north carolina, . y _yeas and nays_ in senate on bill to accommodate the president, ; in the house on amended answer to president's message, ; on relief to sufferers by fire at savannah, ; on a direct tax on land, ; on a direct tax on slaves, ; in house on naval appropriations, ; in house on bill relative to mediterranean powers, ; on the appropriation for the accommodation of the president, ; in house on naval appropriation, ; in house on bill relative to military and naval appropriations, ; on adoption of answer of house to president adams' st message, ; on a bill providing for a naval armament, ; on bill laying stamp duty, ; on bill laying additional duties on salt, ; in senate on act to declare treaty with france void, ; in senate on resolution authorizing minister to spain to receive presents, ; in senate on bill to define and punish treason and sedition, , ; relative to landing french passengers, ; do. on census bill, ; on motion to reconsider do. ; on enumeration of slaves, ; on bill to encourage capture of french armed vessels, ; on bill making appropriations for a naval force, ; on expulsion of matthew lyon, ; relative to claim of amy dardin, ; on the griswold and lyon case, ; on the bill establishing the navy department, ; on the resolution relative to presents to our ministers at foreign courts, ; on the bill to raise a provisional army, ; on the bill relative to alien enemies, ; on the bill relative to protection of commerce, ; on resolutions granting letters of marque, ; on the sedition bill, ; on the abrogation of the treaty with france, ; on bill for sedition and punishment of crimes, ; on instructions to armed vessels, ; in senate on non-intercourse with france, ; do. on aliens holding lands in the territories, ; do. on vesting power of retaliation in president, ; in senate on increase of army, ; on increase of salaries, ; on acceptance of jurisdiction over western reserve, ; on establishing united states post office, ; on bill relative to intercourse with france, ; on bill to increase the navy, ; on agreeing to report of committee relative to capture of french vessels, ; on the expulsion of matthew lyon, ; on repeal of alien and sedition law, ; on amendments to bill relative to disputed presidential elections, ; in senate on resolution relative to breach of privilege, ; on resolutions of committee on privileges, ; on adopting form of warrant of senate for apprehension of william duane, ; on mississippi slave act, ; relative to petition of free blacks, ; on resolutions in case of jonathan robbins, ; on the medal to captain truxton, ; on postponing the bill relative to admirals in the navy, ; on bill prohibiting the slave trade, ; on the bill to erect a mausoleum for washington, ; in senate relative to mausoleum for washington, ; relative to reporting the debates, ; on the bill for a mausoleum to washington, ; on passage, ; on the engrossment of the bill to repeal a part of the sedition act, ; on bill in house to establish uniform system of bankruptcy, ; on senate amendments to bill for mausoleum to washington, ; in senate on admission of a stenographer, ; on the apportionment bill, ; in senate on the repeal of the judiciary establishment, ; note, ; on bill for state government of ohio, ; on bill for relief of widows and orphans of naval and marine officers, ; on repeal of judiciary establishment, ; on bill amending naturalization laws, ; on the bill relative to ohio state government, , ; on passage of bill relative to judiciary system, ; in senate on agreeing to report on memorial of united states judges, ; in senate on the resolutions relative to the right of the united states to the free navigation of the mississippi, ; on reference of resolution calling for papers relative to cession of louisiana, ; on going into committee of the whole on the state of the union relative to the cession of louisiana, , ; on resolutions relative to navigation of mississippi, , ; on refusing prayer of late united states judges, ; on receding to the respective states jurisdiction over the district of columbia, ; on bill relative to importation of emancipated slaves, . z zane, isaac, petition of, . end of vol. ii. footnotes: [ ] a graceful compliment from mr. jefferson to mr. adams whose competitor he had been in the election, for the president and vice president were not then voted for separately but the person having the highest number of votes became president, and the next highest the vice president; and in this election there was only a difference of three votes between the two highest on the list. [ ] the sensibility which was manifested when general washington entered, did not surpass the cheerfulness which overspread his own countenance, nor the heartfelt pleasure with which he saw another invested with the power and authorities that had so long been exercised by himself.--_marshall._ [ ] in this early day, the parliamentary rule was enforced against any reference in one house to what was done in the other. [ ] valued by a speaker in this debate at £ sterling, and afterwards given to the washington college, lexington, va. [ ] afterwards general and president. this was his first appearance in the national councils--and characteristically--defending with his voice those western settlers whose defence, with the sword, was afterwards the foundation of his national fame and political elevation. [ ] this is the true ground on which the united states becomes liable to a state for its expenses in suppressing or repulsing indian hostilities. it turns upon the idea of an actual invasion, or such imminent danger of it as not to admit of delay: then the contingency happens in which the state may engage in war, and all the acts of congress, and the government orders give way before a constitutional right. tennessee, like other new countries in the united states, was settled without law, and against law. its early settlers not only had no protection from the federal government, but were under legal disabilities to pursue the enemy. this arose from the policy of the government to preserve peace on the frontiers by restraining the advance of settlements, and curbing the disposition of the people to war. the history of all the new settlements, from the atlantic to the pacific, is the same: people go without law, and against law; and when they can neither be stopped by the government, nor driven back by the indians, then the government gives them protection. [ ] the committee reported in favor of paying the brigade of general sevier, ( infantry and two troops of horse,) amounting to the sum of $ , and cents--a very small sum for a remote expedition into the country of a formidable indian tribe, and so efficiently conducted as to secure tranquillity to the frontier. it deserves to be remembered for its promptitude, efficiency and cheapness. [ ] the solution of the enigma was, that those who voted against taxing slaves were opposed to any direct tax whatever, and the members from the slave states who supported the tax, did so because the taxation of lands and slaves went together in the slave states--the people were used to the association--and to omit slaves in the direct tax would be unjust and unpopular, as sparing the rich and making the tax fall heavier upon persons of less property. [ ] yeas and nays not taken. [ ] the great naval powers of europe show themselves sensible of this, by proposing to the united states to abolish privateering. [ ] the whole expense of procuring peace from algiers, and forbearance to prey upon our citizens and commerce, and to redeem the captives, was then about one million of dollars; and the alternative was between paying that amount and carrying on war against her. war preparations had begun, and six frigates had been authorized to be built. a war with algiers, then a formidable power, (and of course with the rest of the barbary states,) was a very serious undertaking to the united states at that time--the cost great and certain--the issue uncertain. the greatest powers of europe paid tribute to these barbaric pirates: it was no disgrace to the infant united states to do the same: and the redemption of the captives was a further inducement, founded in humanity: so that the price of peace became a question of economy. [ ] she was compensated accordingly. [ ] the resolution offered by mr. harper contemplated an official interposition in behalf of lafayette--a grave proceeding, which president washington had well considered beforehand, and maturely decided against. but unofficially he had been exerting himself to procure the release, or to mitigate the fate of the illustrious captive. a confidential person had been sent to berlin to solicit his discharge, his first captivity being in prussia; but before the arrival of the messenger the well-guarded prisoner had been turned over to the emperor of germany. mr. thomas pinckney, the american minister in london, had been instructed to make known the wishes of the president to the austrian minister at that place, and the british ministry had been solicited to take an interest in the application: but all in vain. as a last attempt, and at the moment of ceasing to be president, he addressed a private letter to the emperor of austria, couched in noble and feeling terms, in which he solicited that lafayette might be allowed to come to the united states. the letter said: "i forbear to enlarge upon this delicate subject. permit me only to submit to your majesty's consideration, whether his long imprisonment, and the confiscation of his estate, and the indigence and dispersion of his family, and the painful anxieties incident to all these circumstances, do not form an assemblage of sufferings which recommend him to the mediation of humanity? allow me, sir, on this occasion to be its organ; and to entreat that he may be permitted to come to this country on such conditions, and under such restrictions as your majesty may deem it expedient to prescribe." this touching appeal remained without effect; and the romantic effort of dr. bollman having failed to save lafayette, after snatching him from the dungeon of olmutz, it remained for the glittering sword of the conqueror of italy to command what the noble letter of washington failed to obtain. after the treaty of _campo formio_, an aid-de-camp of the then young general buonaparte proceeded to vienna--asked the release of lafayette--and obtained it. the emperor, francis the second, might have appeared more gracefully in the transaction, if he had yielded the release to the letter of washington. [ ] the close of the fourth congress terminates the presidency of general washington, and presents, a proper point for a retrospective view of the working of the government for the first eight years of its existence. such a view is full of instruction, and deserves to be taken; and first of the finances. moderate expenses, and moderate taxes were the characteristics of this branch of the service. the support of the government, called the civil list, and comprehending every object of civil expenditure, was, for the year , (the last of washington's administration,) $ , , and the duties on imports about five millions of dollars--or nearly ten times as much as the support of the government required--leaving nearly nine-tenths to go to the public debt, the preservation of peace with the indian tribes, defence of the frontiers, protection of commerce in the mediterranean; and other extraordinary objects. this amount was produced by moderate duties--the _ad valorems_, , - / , and per centum--and mainly produced by the two first rates, the two latter chiefly applying to objects of luxury not used by the general mass. thus: the amount of imports subject to the and the - / rates was $ , , , while those subject to were $ , , ; and those subject to per centum only the third of one million. the average of the whole was about per centum. the specific duties were on the same moderate scale; and the cost of collecting the whole was . per cent. the interest on the public debt was three millions and a quarter; the military department, $ , , ; naval department, $ , ; tribute to the barbary powers, veiled under the name of foreign intercourse expense, was $ , ; while the regular diplomatic intercourse was only about $ , . the whole expenditure of the government was about - / millions: its whole revenue something more--the excise on distilled spirits producing some $ , . thus, order and economy were established in the finances. abroad peace had been maintained. the proclamation of neutrality, unanimously agreed upon in the cabinet, saved the united states from the calamity of being involved in the wars of the french revolution. the commercial treaty with great britain stopped the depredations which the british had commenced upon american vessels carrying provisions to france, and obtained indemnity for depredations already committed. with spain the serious question of the free navigation of the mississippi was settled; and, in addition to the right of navigation, a place of deposit for american produce and merchandise was obtained at new orleans--the right to be absolute for three years, and afterwards until an equivalent place should be provided. (it was the subsequent violation of this right of deposit which led to the acquisition of all louisiana.) safety to the persons and property of american citizens in the mediterranean sea had been obtained, according to the means usual at that time, and upon terms to be endured until strong enough to do better. the formidable indian war in the north-west, and the troublesome hostilities in the south-west, had been terminated, and peace given to the young communities on the kentucky and cumberland rivers which, commencing without authority, were laying the foundations of future great states. a domestic insurrection (that of western pennsylvania) had been quelled, and happily without bloodshed--the exhibition of a large force, with washington at its head, being sufficient to forbid resistance, and a wise humanity sparing all punishment. the new government was solidly established, and amidst difficulties which might have been insuperable under any other president. public credit, which had sunk so low under the confederation, had risen to a high standard under the new government; and a general commercial and agricultural prosperity pervaded the land. [ ] this was an extra session, called in the early months of mr. adams' administration, for the causes stated in his message to the two houses. [ ] the following is the speech referred to, barras being the president of the directory who addressed it to mr. monroe: "mr. minister plenipotentiary of the united states of america: by presenting to-day your letters of recall to the executive directory, you give to europe a very strange spectacle. "france, rich in her liberty, surrounded by a train of victories, strong in the esteem of her allies, will not abase herself by calculating the consequences of the condescension of the american government to the suggestions of her former tyrants; moreover, the french republic hopes that the successors of columbus, ramhiph, and penn, always proud of their liberty, will never forget that they owe it to france. they will weigh, in their wisdom, the magnanimous benevolence of the french people with the crafty caresses of certain perfidious persons who meditate bringing them back to their former slavery. assure the good american people, sir, that, like them, we adore liberty; that they will always have our esteem; and that they will find in the french people republican generosity, which knows how to grant peace, as it does to cause its sovereignty to be respected. as to you, mr. minister plenipotentiary, you have combated for principles; you have known the true interests of your country: depart with our regret. in you we give up the representative to america, and retain the remembrance of the citizen whose personal qualities did honor to that title." [ ] this is a view of those depredations which has been lost sight of. their injuries are now considered as falling exclusively upon the merchants: it was then agreed that they fell upon the community, the merchant indemnifying himself by insurances and increased profits. [ ] and is still so carried on. [ ] taxed in great britain, with the privilege of commutation for a gross sum. [ ] this sum which amounted to one third of the amount of the notes and disposits, was a general rule for regulating the quantity of cash kept to answer their current demands. [ ] this taxation of bank notes presents the ready mode of regulating the paper currency of the states, and suppressing the mischief of small notes which are a constant source of depredation upon the laboring part of the community, a constant source of crime in the making and passing counterfeit paper, and the constant expeller of the constitutional currency. these small notes were hardly known at the time of this tax, which was so readily imposed, and therefore were taxed lightest: now they are a general circulation, and the most profitable part of a bank's issues; and, therefore, should be taxed highest, both on the principle of being most profitable to the banks and most injurious to the community. [ ] this equilibrium was soon destroyed. the merchants soon got rid of the stamp tax; but the farmers still bear a salt tax. [ ] this extra session having been called on account of expected hostilities with the french republic, the labors of congress were consequently limited to the two objects of defence and revenue--preparation for defence, and providing the additional revenue which the defence required. both objects were accomplished. the three frigates--constitution, constellation and united states, which afterwards earned themselves a place in history--were finished and manned. a detachment of , militia was authorized. a stamp duty was imposed--a loan authorized--and the salt tax increased: the latter as a temporary measure, and with an express clause against continuance, without which it could not have passed, and in contravention of which it was continued. defence was the great object of the session: invasion the danger: and its repulse by sea and land the remedy. preparation against invasion was, at that time, a proper policy: the progress of science, and of the arts of peace, has superseded such policy in our day. the electric telegraph, and the steam car, have opened a new era in defensive war. accumulated masses of volunteers, summoned by electricity and transported by steam, rushed upon the invaded point and giving incessant attacks with fresh arrivals, would exterminate any invading force; and give the cheap, effective and extemporaneous defence which the exigency required. [ ] an illustrious mission, nationally composed of the most eminent citizens, three in number, and taken from different parts of the union, and from both political parties: charles cotesworth pinckney, from south carolina; john marshall, from virginia; elbridge gerry, from massachusetts--the two first federal; mr. gerry, republican. [ ] mr. gallatin is not accurately reported. the exception extended to all the officers of the federal government, and for as long a time as their duties required them to remain in the states, and to all others for the period of six months. [ ] in a subsequent part of this same debate, mr. macon retracted this censure upon the quakers, as being too general. [ ] acts of limitation have been found necessary in all countries, and in all sorts of claims, to quiet demands, bring things to settlement, and to protect the fair dealer from stale demands, after time and accidents have deprived him of the means of invalidating them. necessary in the transactions of individuals, they become still more so in the transactions of the government. its officers are constantly changing, and the knowledge of transactions continually being lost, and the representatives of the government without the personal interest which stimulates inquiry and invigorates defence. the government becomes helpless against claims, even the most unjustifiable, after the lapse of some years; and, without the protection of a statute of limitations, is subject to continual impositions. this was well known to the conductors of our revolution, and the founders of our federal government; and they took care, as they believed, to provide against a danger which they knew to be imminent. equally solicitous to pay every valid claim, and to avoid the payment of unjust ones, they began even during the war to call upon all claimants to present their demands--to furnish abstracts when the case was not ready to be proved up. these calls were redoubled at the conclusion of peace, were repeated during the existence of the confederation, and reiterated at the formation of the new government under the constitution. they took the form of law, and barred the claims which were not presented within limited times. the final bar was seven years after the new government went into operation. the committee, of which mr. gallatin was chairman, made an enumeration of these different statutes, and reported in favor of their observance--a report in which the house concurred, and to which congress then conformed its action. these statutes, and the reasons in which they were founded, seem to have been since forgotten; and stale claims let in upon the treasury without restraint, and proved without difficulty, which no call could bring forth at the time they were supposed to have originated. it is instructive to look over the list of these statutes, and see the reasons in which they were founded, and the efforts made to call in all valid claims, and the attention paid to them fifty years ago, and the disregard since. [ ] upon the request of general washington the count de grasse remained in the chesapeake beyond the time which his instructions allowed, risking all the penalties of insubordination, and by so doing did what was indispensable to the capture of lord cornwallis. [ ] this was the first debate on the prohibition of slavery in a territory which took place under the federal constitution, and it is to be observed that the constitutional power of congress to make the prohibition, was not questioned by any speaker. expedient objections only were urged. [ ] the speaker here alludes to the paper called "the second treaty of pilnitz," which he declares to be a forgery. the first treaty of pilnitz was a mere conditional agreement between the emperor and the king of prussia, that if either of them should be attacked by france, they would unite to repel the attack. this treaty they avowed; and when, on the acceptance of the new constitution by the king of france, better prospects of a peaceable conduct on the part of that nation were entertained, they suspended this treaty by a formal declaration. [ ] thus, by a close vote, the naval department was created; and, as the proceedings show, by a party vote--the republicans of that day being against a navy. [ ] the allusion was to mr. liston, the british minister, accused of complicity with senator blount, of tennessee, in a scheme to send an expedition against the spanish province of west florida, in breach of our neutrality, great britain and spain being then at war, and the united states at peace with both. mr. blount was expelled the senate for his part in that affair, but it was only the beginning of the enterprises which ended twenty years afterwards in adding both east and west florida to the united states. these provinces were geographically appurtenant to the american union, and their possession essential to its political system. the desire for their acquisition was natural, and efforts to obtain them incessant, until the acquisition was made. [ ] the call was made with a view to the final vote on the provisional army bill, and the way in which the absentees were accounted for--one sick and the rest on leave--was highly creditable to the members. [ ] whereas, armed vessels sailing under authority, or pretence of authority, from the republic of france, have committed depredations on the commerce of the united states, and have recently captured the vessels and property of citizens thereof, on and near the coast, in violation of the law of nations, and treaties between the united states and the french nation: therefore, _be it enacted, &c._, that it shall be lawful for the president of the united states, and he is hereby authorized, to instruct and direct the commanders of the armed vessels belonging to the united states, to seize, take, and bring into any port of the united states, to be proceeded against according to the laws of nations, any such armed vessel which shall have committed, or which shall be found hovering on the coasts of the united states, for the purpose of committing depredations on the vessels belonging to citizens thereof; and, also, to retake any ship or vessel, of any citizen or citizens of the united states, which may have been captured by any such armed vessel. [ ] at this period it was the custom of congress to have the funerals of members in the morning or evening, before the meeting, or after the adjournment of the houses. [ ] i allude to my painful residence here, as a political cipher. [ ] the general consent with which this answer was voted was honorable to the house, and advantageous to the character of the country. besides depredations on our commerce, there was, at that time, a course of studied indignities to the united states from the french government, then having the form of a directory, of which _barras_ was president, and talleyrand foreign secretary. these indignities were marked and systematic; of which the speech of _barras_ to mr. monroe when he had his take-leave audience--the refusal to receive his successor, general charles cotesworth pinckney, and insolent threat to commit him to the police as a mere foreigner in paris--the subsequent refusal to receive both himself and judge marshall, sending them out of the country, and endeavoring to divide the embassy--intriguing to extort a bribe, and to obtain a loan in violation of our neutrality--and not only proclaiming but acting on the assumption that we were a divided people, (french and british,) and that a devotion to one or the other of these powers, and not a sentiment of american nationality, was the sole rule of our policy. the unanimity of the answer to the president's speech was a proper reply to all this outrage and insult. and the re-echoed declaration of protection "_to the sacred rights of embassy_," was not only just in itself, and called for by the occasion, but was due to the personal characters, the dignity and decorum of the two repulsed ministers, (messrs. pinckney and marshall,) as well as to their official station and the nation they represented. [ ] then in a state of successful revolt against france, but her independence not acknowledged. [ ] a strong expression, but justified by what had been seen in st. domingo. [ ] this whole debate abounds with valuable information on the condition of the french west indies--political, commercial and historical--during the period of the french revolution. toussaint, santhonax, polverel, victor hugues, hedouville, rigaud, deforneaux, were household words fifty years ago; and words of portent in their day, and giving shape to events of present import--though hardly known now. [ ] the house was in committee of the whole, but still the speakers were held to the point, and hence the force and brevity, and instructive character of these early debates. [ ] it was not the custom then to adjourn the houses to attend the funeral of a member. the burial took place before, or after, the day's session. [ ] in our service the time has been stated at much less--at every eight or ten years. [ ] the following extract from the celebrated report and resolutions of the general assembly of virginia, in the year , speak the sentiments of the democratic party of that day on the subject of a navy: "with respect to the navy, it may be proper to remind you that whatever may be the proposed object, or whatever may be the prospect of temporary advantages resulting therefrom, it is demonstrated by the experience of all nations who have ventured far into naval policy, that such prospect is ultimately delusive; and that a navy has ever in practice been known more as an instrument of power, a source of expense, and an occasion of collisions and wars with other nations, than as an instrument of defence, of economy, or of protection to commerce." and among the resolutions then adopted, she instructs her representatives and requests her senators as follows: "to prevent any augmentation of the navy, and to promote any proposition for reducing it within the narrowest limits compatible with the protection of the sea-coasts, ports and harbors of the united states, and of consequence a proportionate reduction of the taxes." [ ] these assurances were given by the same directory, and through the same minister of foreign affairs, (talleyrand,) who had refused to receive messrs. pinckney and marshall; and, on receiving these assurances, another extraordinary mission of three eminent citizens was appointed to proceed to paris. they were: oliver ellsworth, chief justice of the supreme court of the united states; william richardson davie, late governor of the state of north carolina; and william vans murray, u. s. minister resident at the hague. before they arrived at paris, the revolution of the th _brumaire_ had occurred--the directorial government overturned, the consulate established, and buonaparte at the head of affairs. he retained talleyrand in the foreign ministry, and that astute and supple character conformed as readily to the policy of the first consul, (peace with the united states,) as he had complied with the contrary policy of the directory. [ ] the allusions were to mr. jay and mr. ellsworth, appointed to foreign embassies while chief justices--the former by president washington, the latter by president john adams. [ ] this was the famous judiciary act, passed in the last days of mr. adams' administration, and increasing the number of federal judges, which gave so much dissatisfaction at the time, and which was repealed in the beginning of mr. jefferson's administration. [ ] the prints referred to by mr. trumbull, in his letter to the speaker of the house of representatives, are, first, a representation of the battle of quebec, and death of general montgomery; second, the battle of bunker's hill--both elegant engravings. they are placed on the right and left of the speaker's chair, and are highly ornamental to the representatives' chamber. [ ] this was a skilful movement, and a fair one. it shifted the _onus_ from the friends to the opponents of the president; and besides giving them the advantage of the defensive, impeded the supporters of mr. livingston's motion with preliminary and extrinsic questions from the start. it was a great party question in its day, and before the people chiefly turned upon the point that robbins was an american citizen, while in congress that point was given up, and the debate turned upon the legal right of the president to advise the judge to give up the man, and especially to giving him up without trying his claim to american citizenship. though made, in the main, a party question, it was not entirely so in the vote, many of the democracy voting with the federal members in justification of mr. adams. it was in this debate that the (afterwards) chief justice marshall made the speech which gained him so much fame. [ ] this speech is not reported. [ ] this speech is not reported. [ ] not reported. [ ] not reported. [ ] son of mr. james jarvis, of new york, and midshipman on board the constellation in the engagement of the st of february, who was killed by the falling of the mast. [ ] the first meeting of congress at washington city. [ ] citizen talleyrand, retained under the consulate as minister of exterior relations, was the organ of our ministers' communications with the first consul, and his language and deportment on their arrival present a fine contrast to what they were in the time of the directory, and of the x., y., z. subaltern intriguers. thus, arriving in paris on the d of march, they notify the citizen minister of that fact on the d, and the same day receive this answer: "the information which you have just communicated of your arrival at paris, has given me real satisfaction. if you will take the trouble to call upon me at half-past twelve to-morrow, i will be exceedingly glad to have the honor of receiving you." they called as requested, and were treated with all courtesy; and, having expressed a desire to be presented to the first consul, they received the next day the evidence that he had attended to their request and accomplished it, and giving the hour they were to be "so obliging" as to attend in the hall of the ambassadors, in the palace of the tuileries. and in notifying them that a commission was appointed to treat with them, he expressed himself with amiable politeness, "to remove a misunderstanding which comports as little with the interests as with the sentiments of the two governments." [ ] subject to the disapproval of congress, and to remain in force until disapproved--this territory being a copy in its government of that of the north-west under the ordinance of the th july, , except in the anti-slavery clause. [ ] nominated secretary at war, may th, . nomination postponed on the th of may. appointed may th secretary of state, appointed chief justice of the supreme court of the united states, jan. th, . died . [ ] twenty-two years afterwards this opinion was verified, and the system abolished, after thirty years of injurious existence--so hard is it to get rid of an evil establishment when it has once got foothold. [ ] this result was due, more than to any other, to general hamilton, as the majority of the federal party were strongly disposed to support colonel burr--from doing which, they were impressively and successfully counselled by him. he was personally well with burr, and ill with jefferson, but took the public good, and not his own feelings, for his guide. he said of them, and of his own duty between them: "if there be a man in the world i ought to hate, it is jefferson. with burr i have always been personally well. but the public good must be paramount to every private consideration." the danger of burr's election was imminent, as appears from a letter of bayard's to general hamilton, wherein he says: "i assure you, sir, there appears to be a strong inclination in the federal party to support mr. burr. the current has already (january th) acquired considerable force, and is manifestly increasing. the vote which the representation of a state enables me to give would decide the question in favor of mr. jefferson. at present i am by no means decided as to the object of preference. if the federal party should take up mr. burr, i ought certainly to be impressed with the most undoubting conviction before i separate myself from them." this passage from a letter of mr. bayard, (who afterwards decided the election,) shows the imminence of the danger of burr's election; and the answer to it, (with letters to other federal members,) shows that that danger was averted by general hamilton. in these letters he depicted burr as morally and politically a bad man, utterly unfit and unsafe to be trusted with the presidency, and in circumstances to make crime his necessity as well as his inclination, and implored him to save the country from the "_calamity_" of his election. the sting of these letters, rankling in the bosom of burr, produced the duel in which general hamilton afterwards lost his life. a singularly hard fate! to die for serving his country, and that in the person of an enemy. this election in the house of representatives, protracted through four days and to the th ballot, produced the most intense excitement throughout the united states, and filled the minds of all good men with alarm for the safety of the union. the conclusion, however, showing ten states to have voted for mr. jefferson, and only four for mr. burr, shows that there were many members duly impressed with the solemnity of the crisis, and patriotically coming forward to sacrifice private and political feeling on the altar of public safety. the following detail of the ballotings, all alike but the last, appeared in the national intelligencer at the time, and shows the name and the vote of the different members in this most arduous and eventful struggle. [from the national intelligencer, of feb. and , .] that the people may know how the votes of their representatives have been given, we present a statement: _new hampshire._-- for burr, viz: mr. foster, mr. sheafe, mr. tenney, and mr. freeman. _massachusetts._-- for burr, viz: mr. s. lee, mr. otis, mr. n. read, mr. shepard, mr. thatcher, mr. wadsworth, mr. l. williams, mr. bartlett, mr. mattoon, mr. j. read, mr. sedgwick. three for jefferson, viz: mr. bishop, mr. varnum, mr. lincoln. _rhode island._-- for burr, viz: mr. champlin, and mr. j. brown. _connecticut._-- for burr, viz: mr. c. goodrich, mr. e. goodrich, griswold, mr. dana, mr. j. davenport, mr. edmond, mr. j. c. smith. _vermont._-- for jefferson, viz: mr. lyon. one for burr, viz: mr. morris. _new york._-- for mr. jefferson, viz: mr. bailey, mr. thompson, mr. livingston, mr. elmendorph, mr. van cortlandt, mr. j. smith. four for mr. burr, viz: mr. bird, mr. glenn, mr. cooper, mr. platt. _new jersey._-- for jefferson, viz: mr. kitchell, mr. condit, mr. linn. two for burr, viz: mr. f. davenport, mr. imlay. _pennsylvania._-- for mr. jefferson, viz: mr. gallatin, mr. gregg, mr. hanna, mr. leib, mr. smilie, mr. muhlenberg, mr. heister, mr. stewart, mr. r. brown. four for burr, viz: mr. waln, mr. kittera, mr. thomas, mr. woods. _delaware._-- for mr. burr, viz: mr. bayard. _maryland._-- for mr. jefferson, viz: mr. s. smith, mr. dent, mr. nicholson, mr. christie. four for mr. burr, viz: mr. j. c. thomas, mr. craik, mr. dennis, and mr. baer. _virginia._-- invariably for mr. jefferson, viz: mr. nicholas, mr. clay, mr. cabell, mr. dawson, mr. eggleston, mr. goode, mr. gray, mr. holmes, mr. jackson, mr. new, mr. randolph, mr. a. trigg, mr. j. trigg, mr. tazewell. five for mr. burr on the same ballots, (two of whom on the first ballot voted for mr. jefferson,) viz: mr. evans, mr. h. lee, mr. page, mr. parker, mr. powell. _north carolina._-- invariably for mr. jefferson, viz: mr. alston, mr. macon, mr. stanford, mr. stone, mr. r. williams, mr. spaight. four for burr on some ballots, ( of whom on the first ballot voted for mr. jefferson,) viz: mr. henderson, mr. hill, mr. dickson, mr. grove. _south carolina._--mr. sumter being sick has not attended, but will attend, at every hazard, the moment his vote can be of any avail. the individual votes of the representatives of this state are not accurately known, but it is generally believed that mr. huger votes for mr. jefferson; and mr. rutledge, mr. pinckney, and mr. harper, vote for mr. burr. mr. nott's vote is doubtful. he has gone home. _georgia._-- for jefferson, viz: mr. taliaferro--mr. jones, who is dead, would have voted the same way. _kentucky._-- for mr. jefferson, viz: mr. davis and mr. fowler. _tennessee._-- for mr. jefferson, viz: mr. claiborne. on saturday last a memorial was presented to john chew thomas, representative in congress for this district, from a respectable number of his constituents, recommending him to vote for thomas jefferson, and declaring that at least two-thirds of his constituents were in favor of the election of mr. jefferson. the memorial was signed by the most respectable federal gentlemen of the city of washington. <tb> [from the national intelligencer, of feb. .] on tuesday at o'clock the th ballot was taken; the result the same with that of the preceding ballots. at one o'clock the th ballot was taken which issued in the election of thomas jefferson. on this ballot there were, ten states for mr. jefferson, viz: vermont, new york, new jersey, pennsylvania, maryland, virginia, north carolina, georgia, kentucky, and tennessee. four states for mr. burr, viz: rhode island, new hampshire, connecticut, and massachusetts. two states voted by blank ballots, viz: delaware and south carolina. in the instance of vermont, mr. morris withdrew. in that of south carolina, mr. huger, who is understood previously uniformly to have voted for mr. jefferson, also withdrew, from a spirit of accommodation, which enabled south carolina to give a blank vote. and in the instance of maryland, four votes were for jefferson and four blank. [ ] the administration of mr. adams fell upon difficult times, and involved the necessity of measures always unpopular in themselves, and never more so than at that time. the actual aggressions of france upon our commerce, her threats of war, and insults to our ministers, required preparations to be made for war; and these could not be made without money, nor money be had without loans and taxes. fifteen millions was the required expenditure of the last year of his administration; a large sum in that time, but almost the whole of which went to three objects; the army, the navy, and the public debt. the support of the government remained at the moderate sum which it had previously presented; to wit, $ , . the duties still remained moderate--the _ad valorems_, , - / , and per centum; and the latter more nominal than real, as it only fell upon a few articles of luxury, of which the importation was only to the value of $ , . the main levy fell upon the and - / per centum classes, of which to the value of - / millions were imported; of the per centum class only - / millions were imported; and the average of the whole was per centum and a fraction. the specifics were increased, but not considerably; and the cost of collecting the whole was - / per centum. direct taxes and loans made up the remainder. the whole amount collected from duties was about millions: to be precise, $ , , ; that is to say, nearly twenty times as much as the support of the government (comprehending every civil object) required. the administration of mr. adams, though condemned for extravagance, was strictly economical in the support of the government, and in the collection of the revenue: the army and the navy, those cormorant objects of expenditure, brought the demands for money which injured the administration. [ ] this is the first instance of a _message_ being sent to the two houses at the commencement of a session. though veiled and commended by temporary reasons, founded in the convenience of the members and placed in the fore part of the letter, yet the concluding reasons (which are of a general and permanent nature) disclose the true reasons for the change--which was, to make it permanent: and permanent it has been. it was one of mr. jefferson's reforms--the former way of assembling the two houses to hear an address in person from the president, returning an answer to it, the two houses going in form to present their answer, and the intervention of repeated committees to arrange the details of these ceremonious meetings, being considered too close an imitation of the royal mode of opening a british parliament. some of the democratic friends of mr. jefferson doubted whether this change was a reform, in that part of it which dispensed with the answers to the president. their view of it was, that the answer to the speech, or message, afforded a regular occasion for speaking to the state of the union, and to all the topics presented; which speaking, losing its regular vent, would afterwards break out irregularly on the discussion of particular measures, and to the interruption of the business on hand. experience has developed that irregularity, and another--that of speaking to the message on the motions to refer particular clauses of it to appropriate committees, thereby delaying the reference; and, in one instance during mr. fillmore's administration, preventing the reference during the entire session. [ ] [from the national intelligencer of jan. , .] on monday last the editor addressed a letter to the president of the senate, requesting permission to occupy a position in the lower area of the senate chamber, for the purpose of taking with correctness the debates and proceedings of that body. it may be necessary to remark that heretofore no stenographer has been admitted in this area; and the upper gallery, being open to the admission of every one, and very remote from the floor of the house, has prevented any attempt being made to take the debates, from the impossibility of hearing distinctly from it. the contents of the letter were submitted by the president to the senate; and a resolution agreed to, to the following effect: _resolved_, that any stenographer, desirous to take the debates of the senate on legislative business, may be admitted for that purpose, at such place, within the area of the senate chamber, as the president shall allot. on wednesday the editor had, accordingly, assigned to him a convenient place in the lower area, from which he took notes of the proceedings of the senate on the adoption of the above resolution, which opens a new door to public information, and which may be considered as the prelude to a more genuine sympathy between the senate and the people of the united states, than may have heretofore subsisted, by rendering each better acquainted with the other, we congratulate, without qualification, every friend to the true principles of our republican institutions. [ ] this motion gave rise to one of the most extended and earnest debates which had occurred in congress, involving the interests and passions of party, as well as questions of high constitutional law and of great public expediency; and was brought on in the approved parliamentary form of a resolution to try the principle, unembarrassed with the details of a new bill. the law proposed to be repealed, besides adding sixteen new circuit judges at once to the federal bench, (making in all,) was passed in the last days of an expiring administration, and the appointments made in these last moments, and well confined to one political party: so that many reasons conspired to make it objectionable on one hand and desirable on the other, and to call forth the strongest exertions both for, and against, the repeal. [ ] it was a party vote, and a close one, some changes of members having changed the majority since the last session--then a bare majority on the federal side. [ ] a debate of great length and earnestness now took place in the house on this repealing bill sent down from the senate, and passed there by a majority of only one. the two parties seemed to have staked themselves upon it, not before the house, (where the issue was certain,) but before the country, to the arbitrament of which the great appeal was made. above thirty members delivered elaborate speeches, of which but small parts can be given in an abridgment--the less to be regretted, as the staple of each was, of necessity, much the same--but varied, enlivened and enforced by the peculiar talent, learning and ability of different speakers. their names were--for the repeal: john bacon, of massachusetts; john clopton, of virginia; thomas t. davis, of kentucky; john dawson, of virginia; william b. giles, of virginia; andrew gregg, of pennsylvania; nathaniel macon, of north carolina; john milledge, of georgia; thomas morris, of new york; joseph h. nicholson, of maryland; john randolph, of virginia; general samuel smith, of maryland; philip r. thompson, of virginia; james holland and robert williams, of north carolina.--against the repeal: james a. bayard, of delaware; manasseh cutter, of massachusetts; samuel w. dana, of connecticut; john dennis, of maryland; thomas plater, of maryland; william eustis, of massachusetts; calvin goddard, of connecticut; roger griswold, of connecticut; seth hastings, of massachusetts; joseph hemphill, of pennsylvania; archibald henderson, of north carolina; william h. hill, of north carolina; benjamin huger, of south carolina; thomas lowndes, of south carolina; john rutledge, of south carolina; john stanley, of north carolina; benjamin tallmadge, of new york. [ ] the detail of the vote on the balloting shows this fact, so creditable to south carolina. [ ] this is the first authentic declaration that mr. jefferson's opinion on slavery was an obstacle to his receiving the south carolina vote. [ ] a double movement was going on at the same time in relation to the violation of the right of deposit at new orleans: one by the administration, commencing with an embassy both to france and spain to negotiate for the desired places; the other by the opposition, who held negotiation to be unworthy of the country in circumstances of such wrong and insult, and preferred the immediate seizure of new orleans. mr. ross, a pennsylvania senator, from the west of the state, whose trade went to new orleans, was the leader of this forcible movement--in which he was well sustained by the _feeling_ of the whole west. it was on mr. ross's resolutions that this violation of the right of deposit at new orleans was publicly debated; and as it concerned the free navigation of the mississippi, it was called the "mississippi question." [ ] this is the act which began the movement, which ended in the purchase of louisiana. at the time it was passed the views of no one extended to the acquisition of that great province. the island on which new orleans stands, and the two floridas, were the object. even this object was veiled by general expressions in relation to foreign intercourse, but its true purpose was made known in a confidential communication from the president to the house of representatives, and by it communicated to the senate, when the bill was up for its concurrence. mr. bayard and mr. nicholson were the committee that carried up the bill, and delivered this message: "_gentlemen of the senate_: "we transmit you a bill, which has passed this house, entitled "an act making further provision for the expenses attending the intercourse between the united states and foreign nations," and in which we request your concurrence. this bill has been passed by us in order to enable the president of the united states to commence, with more effect, a negotiation with the french and spanish governments, relative to the purchase of the island of new orleans, and the provinces of east and west florida. the nature and importance of the measures contemplated, have induced us to act upon the subject with closed doors. you will, of consequence, consider this communication as confidential." [ ] this was spoken before the campaigns of ulm, austerlitz and jena. [ ] the true reason for the non-circulation of gold was the erroneous valuation of that coin, which was not corrected until thirty years afterwards. [ ] this speech, delivered in the virginia convention which ratified the federal constitution, is the only full and perfect account of the transaction to which it refers that has ever been published. it refers to the design in the congress of the confederation to give up the navigation of the mississippi for or years in return for some commercial privileges from spain--a design which mr. monroe was mainly instrumental in defeating, and for which he deserved still higher rewards than honor and gratitude. his reluctance to give the history of this transaction arose from its secret nature, the congress of the confederation sitting upon it with closed doors, and the members being under injunctions not to disclose what was done. its essentiality to a knowledge of the political history of the times must be apparent to all who read it. [ ] the famous orator. [ ] see _ante_, under date of december . [ ] all the steps and proceedings which led to the acquisition of louisiana (and the same occurred in the acquisition of florida) are given in full, that it may be seen that this important negotiation, which was to involve an appropriation of money, had its foundation laid in the authority of the proper appropriating power--the house of representatives; to which the purse-strings of the union were specially confided. [ ] above forty years afterwards, to wit, in , the virginia part of the district was retroceded to that state. note: this is an updated edition of pg# . copyright (c) s. a. reilly our legal heritage king aethelbert - king george iii, a.d. - by s. a. reilly, attorney e. delaware place chicago, illinois - s-reilly@att.net copyright (c) preface 	this book was written to appreciate what laws have been in existence for a long time and therefore have proven their success in maintaining a stable society. its purpose is also to see the historical context in which our legal doctrines developed. it includes the inception of the common law system, which was praised because it made law which was not handed down by an absolutist king; the origin of the jury system; the meaning of the magna carta provisions in their historical context; and the emergence of attorneys. 	this book is a primer. one may read it without prior knowledge of history or law, although it will be more meaningful to attorneys than to others. it can serve as an introduction on which to base further reading in english legal history. it defines terms unique to english legal history. however, the meaning of some terms in king aethelbert's code in chapter are unknown or inexact. 	in the table of contents, the title of each chapter denotes an important legal development in the given time period for that chapter. each chapter is divided into three sections: the times, the law, and judicial procedure. 	the times section sets a background and context in which to better understand the law of that period. the usual subject matter of history such as battles, wars, royal intrigues, periods of corruption, and international relations are omitted as not helping to understand the process of civilization and development of the law. standard practices are described, but there are often variations with locality. also, change did not come abruptly, but with vacillations, e.g. the change from pagan to christian belief and the change to allowance of loans for interest. the scientific revolution was accepted only slowly. there were often many attempts made for change before it actually occurred, e.g. gaining parliamentary power over the king's privileges, such as taxation. 	the law section describes the law governing the behavior and conduct of the populace. it includes law of that time which is the same, similar, or a building block to the law of today. in earlier times this is both statutory law and the common law of the courts. the magna carta, which is quoted in chapter , is the first statute of england and is listed first in the "statutes of the realm" and the "statutes at large". the law sections of chapters - mainly quote or paraphrase almost all of these statutes. excluded are statutes which do not help us understand the development of our law, such as statutes governing wales after its conquest and statutes on succession rights to the throne. 	the judicial procedure section describes the process of applying the law and trying cases, and jurisdictions. it also contains some examples of cases. 	for easy comparison, amounts of money expressed in pounds or marks [danish denomination] have often been converted to the smaller denominations of shillings and pence. there are twenty shillings in a pound. a mark in silver is two-thirds of a pound. shillings are abbreviated: "s." there are twelve pennies or pence in a norman shilling. pence are abbreviated "d." six shillings and two pence is denoted s. d. a scaett was a coin of silver and copper of lesser denomination than a shilling. there were no coins of the denomination of shilling during anglo-saxon times. 	the sources and reference books from which information was obtained are listed in a bibliography instead of being contained in tedious footnotes. there is no index to pages because the electronic text will print out its pages differently on different computers with different computer settings. instead, a word search may be done on the electronic text. dedication and acknowledgements 	a vassar college faculty member once dedicated her book to her students, but for whom it would have been written much earlier. this book "our legal heritage" is dedicated to the faculty of vassar college, without whom it would never have been written. much appreciation goes to professor james curtin of loyola law school for his review and comments on this book's medieval period: chapters - , and especially his comment that "i learned quite a bit about life in those days from your work." thanks go to loyola university law school professor george anastaplo for introducing me to professor curtin. much appreciation goes to professor lacey baldwin smith of northwestern university's history department for his review and comments on this book's tudor and stuart periods: chapters - , especially his comment that he learned a lot. thanks go to northwestern university law school professor steven presser for introducing me to professor smith. finally, many thanks go to fellow mensan william wedgeworth for proof-reading the entire book. table of contents chapters: . tort law as the first written law: to . oaths and perjury: - . marriage law: - . martial "law": - . criminal law and prosecution: - . common law for all freemen: - . magna carta: the first statute: - . land law: - . legislating the economy: - . equity from chancery court: - . use-trust of land: - . wills and testaments of lands and goods: - . consideration and contract law: - . welfare for the poor: - . independence of the courts: - . freedom of religion: - . habeas corpus: - . service of process instead of arrest: - . epilogue: - appendix: sovereigns of england bibliography - - - chapter - - - - the times: before a.d. - 	the settlement of england goes back thousands of years. at first, people hunted and gathered their food. they wore animal skins over their bodies for warmth and around their feet for protection when walking. these skins were sewn together with bone needles and threads made from animal sinews. they carried small items by hooking them onto their belts. they used bone and stone tools, e.g. for preparing skins. their uncombed hair was held by thistlethorns, animal spines, or straight bone hair pins. they wore conical hats of bound rush and lived in rush shelters. 	early clans, headed by kings, lived in huts on top of hills or other high places and fortified by circular or contour earth ditches and banks behind which they could gather for protection. they were probably dug with antler picks and wood spades. the people lived in rectangular huts with four wood posts supporting a roof. the walls were made of saplings, and a mixture of mud and straw. cooking was in a clay oven inside or over an open fire on the outside. water was carried in animal skins or leather pouches from springs lower on the hill up to the settlement. forests abounded with wolves, bears, deer, wild boars, and wild cattle. they could more easily be seen from the hill tops. pathways extended through this camp of huts and for many miles beyond. 	for wives, men married women of their clan or bought or captured other women, perhaps with the help of a best man. they carried their unwilling wives over the thresholds of their huts, which were sometimes in places kept secret from her family. the first month of marriage was called the honeymoon because the couple was given mead, a drink with fermented honey and herbs, for the first month of their marriage. a wife wore a gold wedding band on the ring finger of her left hand to show that she was married. 	women usually stayed at home caring for children, preparing meals, and making baskets. they also made wool felt and spun and wove wool into a coarse cloth. flax was grown and woven into a coarse linen cloth. spinning the strands into one continuous thread was done on a stick, which the woman could carry about and spin at anytime when her hands were free. the weaving was done on an upright or warp-weighted loom. people of means draped the cloth around their bodies and fastened it with a metal brooch inlayed with gold, gems, and shell, which were glued on with glue that was obtained from melting animal hooves. people drank from hollowed- out animal horns, which they could carry from belts. they could tie things with rawhide strips or rope braids they made. kings drank from animal horns decorated with gold or from cups of amber, shale, or pure gold. men and women wore pendants and necklaces of colorful stones, shells, amber beads, bones, and deer teeth. they skinned and cut animals with hand-axes and knives made of flint dug up from pits and formed by hitting flakes off. the speared fish with barbed bone prongs or wrapped bait around a flint, bone, or shell fish hook. on the coast, they made bone harpoons for deep-sea fish. the flint ax was used to shape wood and bone and was just strong enough to fell a tree, although the process was very slow. 	the king, who was tall and strong, led his men in hunting groups to kill deer and other wild animals in the forests and to fish in the streams. some men brought their hunting dogs on leashes to follow scent trails to the animal. the men threw stones and spears with flint points at the animals. they used wood clubs to beat them, at the same time using wood shields to protect their bodies. they watched the phases of the moon and learned to predict when it would be full and give the most light for night hunting. this began the concept of a month. circles of stone like stonehenge were built with alignments to paths of the moon. 	if hunting groups from two clans tried to follow the same deer, there might be a fight between the clans or a blood feud. after the battle, the clan would bring back its dead and wounded. a priest officiated over a funeral for a dead man. his wife would often also go on the funeral pyre with him. 	the priest also officiated over sacrifices of humans, who were usually offenders found guilty of transgressions. sacrifices were usually made in time of war or pestilence, and usually before the winter made food scarce. 	the clan ate deer that had been cooked on a spit over a fire, and fruits and vegetables which had been gathered by the women. they drank water from springs. in the spring, food was plentiful. there were eggs of different colors in nests and many hare to eat. the goddess easter was celebrated at this time. 	later, there was farming and domestication of animals such as horses, pigs, sheep, goats, chicken, and cattle. of these, the pig was the most important meat supply, being killed and salted for winter use. next in importance were the cattle. sheep were kept primarily for their wool. flocks and herds were taken to pastures. the male cattle, with wood yokes, pulled ploughs in the fields of barley and wheat. the female goat and cow provided milk, butter, and cheese. the chickens provided eggs. the hoe, spade, and grinding stone were used. thread was spun with a hand-held spindle which one hand held while the other hand alternately formed the thread from a mass and then wound it around the spindle. a coarse cloth was woven and worn as a tunic which had been cut from the cloth. kings wore tunics decorated with sheet gold. decorated pottery was made from clay and used to hold liquids and for food preparation and consumption. during the period of "lent" [from the word "lencten", which means spring], it was forbidden to eat any meat or fish. this was the season in which many animals were born and grew to maturity. wood carts with four wheels were used to transport produce and manure. horses were used for transportation of people or goods. wood dug-out boats and paddles were used to fish on rivers or on the seacoast. 	clans had settlements near rivers. each settlement had a meadow, for the mowing of hay, and a simple mill, with round timber huts, covered with branches or thatch or turf supported by a ring of posts. inside was a hearth with smoke going up through a hole in the roof, and a cauldron for cooking food. there was an upright loom in the darkness. the floor was swept clean. at the door were spears or bags of slingstones ready for immediate use. the king lived in the largest hut. gullies outside carried off excess water. each hut had a garden for fruit and vegetables. a goat or cow might be tied out of reach of the garden. there was a fence or hedge surrounding and protecting the garden area and dwelling. buckets and cauldrons which had originated from the mediterranean were used. querns with the top circular stone turned by hand over the bottom stone were used for grinding grain. there were ovens to dry and roast grain. grain was first eaten as a porridge or cereal. there were square wood granaries on stilts and wood racks on which to dry hay. grain was stored in concealed pits in the earth which were lined with drystone or basket work or clay and made airtight by sealing with clay or dung. old pits were converted into waste dumps, burials, or latrines. outside the fence were an acre or two of fields of wheat and barley, and sometimes oats and rye. wheat and rye were sown in the fall, and oats and barley in the spring. sowing was by men or two oxen drawing a simple scratch plough. the crops were all harvested in the summer. in this two-field system, land was held by peasants in units designed to support a single extended family. these fields were usually enclosed with a hedge to keep animals from eating the crop and to define the territory of the settlement from that of its neighbors. flax was grown and made into linen cloth. beyond the fields were pastures for cattle and sheep grazing. there was often an area for beehives. this was subsistence level farming. 	pottery was given symmetry when formed with use of a wheel and heated in increasingly hot kilns. from kilns used for pottery, it was noticed that lumps of gold or copper ore within would melt and assume the shape of what they had been resting on. these were the first metals, and could be beaten into various shapes, such as ornaments. then the liquid ore was poured into moulds carved out of stones to make axes [small pointed tool for piercing holes in leather, wood, or other soft materials] and daggers, which were reheated and hammered to become strong. copper-tipped drills, chisels, punches and awls were also made. 	the bodies of deceased were buried far away from any village in wood coffins, except for kings, who were placed in large stone coffins after being wrapped in linen. buried with them were a few personal items, such as copper daggers, flat copper axes, and awls. the deceased was buried in a coffin with a stone on top deep in the earth to keep the spirit of the dead from coming out to haunt the living. 	it was learned that tin added to the copper made a stronger metal: bronze. stone hammers, and bronze and iron tools, were used to make cooking pots, weapons, breast plates, and horse bits, which were formed from moulds and/or forged by bronze smiths and blacksmiths from iron extracted from iron ore heated in bowl- shaped hearths. typically one man operated the bellows to keep the fire hot while another did the hammering. bronze was made into sickles for harvesting, razors for shaving, tweezers, straight hair pins, safety pins for clothes, armlets, neck-rings, and mirrors. weapons included bows and arrows, flint and copper daggers, bronze swords and spears, stone axes, and shields of wood with bronze mountings. the bows and arrows probably evolved from spear throwing rods. kings in body armor fought with chariots drawn by two horses. the horse harnesses had bronze fittings. the chariots had wood wheels, later with iron rims. when bronze came into use, there was a demand for its constituent parts: copper and tin, which were traded by rafts on waterways and the sea. when iron came into use, there were wrought iron axes, saws, adzes [ax with curved blade used to dress wood], files, ploughshares, harrows [set of spikes to break clods of earth on ploughed land and also to cover seed when sewn], scythes, billhooks [thick knife with hooked point used to prune shrubs], and spits for hearths. lead was mined. there was some glassmaking of beads. wrought iron bars were used as currency. 	hillforts now had wooden palisades on top of their banks to protect the enclosed farmsteads and villages from stock wandering off or being taken by rustlers, and from attacks by wild animals or other people. later a rampart was added from which sentries could patrol. these were supported by timber and/or stone structures. timbers were probably transported by carts or dragged by oxen. at the entrances were several openings only one of which really allowed entry. the others went between banks into dead ends and served as traps in which to kill the enemy from above. gates were of wood, some hung from hinges on posts which could be locked. later guard chambers were added, some with space for hearths and beds. sometimes further concentric circles of banks and ditches, and perhaps a second rampart, were added around these forts. they could reach to acres. the ramparts are sufficiently widely spaced to make sling-shotting out from them highly effective, but to minimize the dangers from sling-shotting from without. the additional banks and ditches could be used to create cattle corridors or to protect against spear-thrown firebrands. however, few forts had springs of water within them, indicating that attacks on them were probably expected to be short. attacks usually began with warriors bristling with weapons and blowing war trumpets shouting insults to the foe, while their kings dashed about in chariots. sometimes champions from each side fought in single combat. they took the heads of those they killed to hang from their belts or place on wood spikes at the gates. prisoners, including women and children, might become slaves. kings sometimes lived in separate palisades where they kept their horses and chariots. 	circles of big stones like stonehenge were rebuilt so that the sun's position with respect to the stones would indicate the day of longest sunlight and the day of shortest sunlight. between these days there was an optimum time to harvest the crops before fall, when plants dried up and leaves fell from the trees. the winter solstice, when the days began to get longer was cause for celebration. in the next season, there was an optimum time to plant seeds so they could spring up from the ground as new growth. so farming gave rise to the concept of a year. certain changes of the year were celebrated, such as easter, named for the goddess of the dawn, which occurred in the east (after lent); may day celebrating the revival of life; lammas around july, when the wheat crop was ready for harvesting; and on october the celtic eve of samhain, when the spirits of the dead came back to visit homes and demand food or else cast an evil spell on the refusing homes; and at which masked and costumed inhabitants representing the souls of the dead paraded to the outskirts of the settlements to lead the ghosts away from their homes; and at which animals and humans, who might be deemed to be possessed by spirits, were sacrificed or killed perhaps as examples, in huge bonfires [bonefires] as those assembled looked out for spirits and evil beings. 	there was an agricultural revolution from the two-field system in which one field was fallow to the three-field system, in which there were three large fields for the heavy and fertile land. each field was divided into long and narrow strips. each strip represented a day's work with the plough. one field had wheat, or perhaps rye, another had barley, oats, beans, or peas, and the third was fallow. it had been observed that legumes such as peas and beans restored the soil. these were rotated yearly. there was a newly invented plough that was heavy and made of wood and later had an attached iron blade. the plough had a mould-board which caught the soil stirred by the plough blade and threw it into a ridge alongside the furrow dug by the plough blade. this plough was too heavy for two oxen and was pulled by a team of about eight to ten oxen. each ox was owned by a different man as was the plough, because no one peasant could afford the complete set. each freeman was allotted certain strips in each field to bear crops. his strips were far from each other, which insured some very fertile and some only fair soil, and some land near his village dwelling and some far away. these strips he cultivated, sowed with seed, and harvested for himself and his family. after the harvest, they reverted to common ownership for grazing by pigs, sheep, and geese. as soon as haymaking was over, the meadows became common grazing land for horses, cows, and oxen. not just any inhabitant, but usually only those who owned a piece of land in the parish were entitled to graze their animals on the common land, and each owner had this right of pasture for a definite number of animals. the faster horse replaced the ox as the primary work animal. other farm implements were: coulters, which gave free passage to the plough by cutting weeds and turf, picks, spades and shovels, reaping hooks and scythes, and sledge hammers and anvils. strips of land for agriculture were added from waste land as the community grew. waste lands were moors bristling with brushwood, or gorse, heather and wanton weeds, reed-coated marshes, quaking peat-bogs, or woods grown haphazard on sand or rock. with iron axes, forests could be cleared to provide more arable land. 	some villages had a smith, a wheelwright, and a cooper. there were villages which had one or two market days in each week. cattle, sheep, pigs, poultry, calves, and hare were sold there. london was a town on the thames river under the protection of the celtic river god lud: lud's town. it's huts were probably built over the water, as was celtic custom. it was a port for foreign trade. near the town was ludhill. each celtic tribe in england made its own coinage. silver and bronze were first used, and then gold. the metal was put into a round form and then placed between two engraved dies, which were hit. 	flint workers mined with deer antler picks and ox shoulder blade shovels for flint to grind into axes, spearheads, and arrowheads. mine shafts were up to thirty feet deep and necessitated the use of chalk lamps fueled by animal fat with wicks of moss. the flint was hauled up in baskets. 	common men and women were now buried in tombs within memorial burial mounds of earth with stone entrances and interior chambers. a man's weapons and shield were buried with him and a woman's spindle and weaving baton, and perhaps beads or pottery with her. at times, mounds of earth would simply be covered over piles of corpses and ashes in urns. in these mass graves, some corpses had spear holes or sword cuts, indicating death by violence. the druid priests, the learned class of the celts, taught the celts to believe in reincarnation of the soul after death of one body into another body. they also threw prized possessions into lakes and rivers as sacrifices to water gods. they placed images of gods and goddesses in shrines, which were sometimes large enough to be temples. they thought of their gods as supernatural magicians. 	with the ability to grow food and the acquisition of land by conquest by invading groups, the population grew. there were different classes of men. the freemen were eorls [noble freemen] or ceorls [ordinary free farmers]. slaves were not free. freemen had long hair and beards. slaves' hair was shorn from their heads so that they were bald. slaves were chained and often traded. prisoners taken in battle, especially native britons taken by invading groups, became slaves. a slave who was captured or purchased was a "theow". an "esne" was a slave who worked for hire. a "weallas" was a welsh slave. criminals became slaves of the person wronged or of the king. sometimes a father pressed by need sold his children or his wife into bondage. debtors, who increased in number during famine, which occurred regularly, became slaves by giving up the freeman's sword and spear, picking up a slave's mattock [pick ax for the soils], and placing their head within a lord's or lady's hands. they were called wite- theows. the original meaning of the word lord was "loaf-giver". children with a slave parent were slaves. the slaves lived in huts around the homes of big landholders, which were made of logs and consisted on one large room or hall. an open hearth was in the middle of the earthen floor of the hall, which was strewn with rushes. there was a hole in the roof to let out the smoke. here the landholder and his men would eat meat, bread, salt, hot spiced ale, and mead while listening to minstrels sing about the heroic deeds of their ancestors. richer men drank wine. there were festivals which lasted several days, in which warriors feasted, drank, gambled, boasted, and slept where they fell. physical strength and endurance in adversity were admired traits. 	slaves often were used as grain grinders, ploughmen, sowers, haywards, woodwards, shepherds, goatherds, swineherds, oxherds, cowherds, dairymaids, and barnmen. slaves had no legal rights. a lord could kill his slave at will. a wrong done to a slave was regarded as done to his owner. if a person killed another man's slave, he had to compensate him with the slave's purchase price. the slave owner had to answer for the offenses of his slaves against others, as for the mischief done by his cattle. since a slave had no property, he could not be fined for crimes, but was whipped, mutilated, or killed. 	during famine, acorns, beans, peas, and even bark were ground down to supplement flour when grain stocks grew low. people scoured the hedgerows for herbs, roots, nettles, and wild grasses, which were usually left for the pigs. sometimes people were driven to infanticide or group suicide by jumping together off a cliff or into the water. 	several large kingdoms came to replace the many small ones. the people were worshipping pagan gods when st. augustine came to england in a.d. to christianize them. king aethelbert of kent [much later a county] and his wife, who had been raised christian on the continent, met him when he arrived. the king gave him land where there were ruins of an old city. augustine used stones from the ruins to build a church which was later called canterbury. he also built the first st. paul's church in london. aethelbert and his men who fought with him and ate and lived in his household [gesiths] became christian. a succession of princesses went out from kent to marry other saxon kings and convert them to christianity. 	augustine knew how to write, but king aethelbert did not. the king announced his laws at meetings of his people and his eorls would decide the punishments. there was a fine of s. for disregarding a command of the king. he and augustine decided to write down some of these laws, which now included the king's new law concerning the church. 	these laws concern personal injury, killing, theft, burglary, marriage, adultery, and inheritance. the blood feud's private revenge for killing had been replaced by payment of compensation to the dead man's kindred. one paid a man's "wergeld" [worth] to his kindred for causing his wrongful death. the wergeld [wer] of a king was an unpayable amount of about s., of an aetheling [a king-worthy man of the extended royal family] was s., of an eorl, s., of a ceorl, s., of a laet [agricultural worker in kent, which class was between free and slave], - s., and of a slave nothing. at this time a shilling could buy a cow in kent or a sheep elsewhere. if a ceorl killed an eorl, he paid three times as much as an eorl would have paid as murderer. the penalty for slander was tearing out of the tongue. if an aetheling was guilty of this offense, his tongue was worth five times that of a coerl, so he had to pay proportionately more to ransom it. the crimes of murder, treachery to one's own lord, arson, house breaking, and open theft, were punishable by death and forfeiture of all property. - the law - 	"these are the dooms [decrees] which king aethelberht established in the days of augustine . [theft of] the property of god and of the church [shall be compensated], twelve fold; a bishop's property, eleven fold; a priest's property, nine fold; a deacon's property, six fold; a cleric's property, three fold; church frith [breach of the peace of the church; right of sanctuary and protection given to those within its precincts], two fold [that of ordinary breach of the public peace]; m......frith [breach of the peace of a meeting place], two fold. . if the king calls his leod [his people] to him, and any one there do them evil, [let him compensate with] a twofold bot [damages for the injury], and shillings to the king. . if the king drink at any one's home, and any one there do any lyswe [evil deed], let him make twofold bot. . if a freeman steal from the king, let him repay nine fold. . if a man slay another in the king's tun [enclosed dwelling premises], let him make bot with shillings. . if any one slay a freeman, shillings to the king, as drihtin beah [payment to a lord in compensation for killing his freeman]. . if the king's ambiht smith [smith or carpenter] or laad rine [man who walks before the king or guide or escort], slay a man, let him pay a half leod geld. . [offenses against anyone or anyplace under] the king's mund byrd [protection or patronage], shillings . if a freeman steal from a freeman, let him make threefold bot; and let the king have the wite [fine] and all the chattels [necessary to pay the fine]. (chattels was a variant of "cattle".) . if a man lie with the king's maiden [female servant], let him pay a bot of shillings. . if she be a grinding slave, let him pay a bot of shillings.the third [class of servant] shillings. . let the king's fed esl [woman who serves him food or nurse] be paid for with shillings. . if a man slay another in an eorl's tun [premises], let [him] make bot with shillings. . if a man lie with an eorl's birele [female cupbearer], let him make bot with shillings. . [offenses against a person or place under] a ceorl's mund byrd [protection], shillings. . if a man lie with a ceorl's birele [female cupbearer], let him make bot with shillings; with a slave of the second [class], scaetts; with one of the third, scaetts. . if any one be the first to invade a man's tun [premises], let him make bot with shillings; let him who follows, with shillings; after, each, a shilling. . if a man furnish weapons to another where there is a quarrel, though no injury results, let him make bot with shillings. . if a weg reaf [highway robbery] be done [with weapons furnished by another], let him [the man who provided the weapons] make bot with shillings. . if the man be slain, let him [the man who provided the weapons] make bot with shillings. . if a [free] man slay another, let him make bot with a half leod geld [wergeld for manslaughter] of shillings. . if a man slay another, at the open grave let him pay shillings, and pay the whole leod within days. . if the slayer departs from the land, let his kindred pay a half leod. . if any one bind a freeman, let him make bot with shillings. . if any one slay a ceorl's hlaf aeta [loaf or bread eater; domestic or menial servant], let him make bot with shillings. . if [anyone] slay a laet of the highest class, let him pay shillings; of the second class, let him pay shillings; of the third class, let him pay shillings. . if a freeman commit edor breach [breaking through the fenced enclosure and forcibly entering a ceorl's dwelling], let him make bot with shillings. . if any one take property from a dwelling, let him pay a three- fold bot. . if a freeman goes with hostile intent through an edor [the fence enclosing a dwelling], let him make bot with shillings. . if [in so doing] a man slay another, let him pay with his own money, and with any sound property whatever. . if a freeman lie with a freeman's wife, let him pay for it with his wer geld, and obtain another wife with his own money, and bring her to the other [man's dwelling]. . if any one thrusts through the riht ham scyld [legal means of protecting one's home], let him adequately compensate. . if there be feax fang [seizing someone by the hair], let there be sceatts for bot. . if there be an exposure of the bone, let bot be made with shillings. . if there be an injury to the bone, let bot be made with shillings. . if the outer hion [outer membrane covering the brain] be broken, let bot be made with shillings. . if it be both [outer and inner membranes covering the brain], let bot be made with shillings. . if a shoulder be lamed, let bot be made with shillings. . if an ear be struck off, let bot be made with shillings. . if the other ear hear not, let bot be made with shillings. . if an ear be pierced, let bot be made with shillings. . if an ear be mutilated, let bot be made with shillings. . if an eye be [struck] out, let bot be made with shillings. . if the mouth or an eye be injured, let bot be made with shillings. . if the nose be pierced, let bot be made with shillings. . if it be one ala, let bot be made with shillings. . if both be pierced, let bot be made with shillings. . if the nose be otherwise mutilated, for each [cut, let] bot be made with shillings. . if it be pierced, let bot be made with shillings. . let him who breaks the jaw bone pay for it with shillings. . for each of the four front teeth, shillings; for the tooth which stands next to them shillings; for that which stands next to that, shillings; and then afterwards, for each a shilling. . if the speech be injured, shillings. if the collar bone be broken, let bot be made with shillings. . let him who stabs [another] through an arm, make bot with shillings. if an arm be broken, let him make bot with shillings. . if a thumb be struck off, shillings. if a thumb nail be off, let bot be made with shillings. if the shooting [fore] finger be struck off, let bot be made with shillings. if the middle finger be struck off, let bot be made with shillings. if the gold [ring] finger be struck off, let bot be made with shillings. if the little finger be struck off, let bot be made with shillings. . for every nail, a shilling. . for the smallest disfigurement of the face, shillings; and for the greater, shillings. . if any one strike another with his fist on the nose, shillings. . if there be a bruise [on the nose], a shilling; if he receive a right hand bruise [from protecting his face with his arm], let him [the striker] pay a shilling. . if the bruise [on the arm] be black in a part not covered by the clothes, let bot be made with scaetts. . if it be covered by the clothes, let bot for each be made with scaetts. . if the belly be wounded, let bot be made with shillings; if it be pierced through, let bot be made with shillings. . if any one be gegemed [pregnant], let bot be made with shillings. . if any one be cear wund [badly wounded], let bot be made with shillings. . if any one destroy [another's] organ of generation [penis], let him pay him with leod gelds: if he pierce it through, let him make bot with shillings; if it be pierced within, let him make bot with shillings. . if a thigh be broken, let bot be made with shillings; if the man become halt [lame], then friends must arbitrate. . if a rib be broken, let bot be made with shillings. . if [the skin of] a thigh be pierced through, for each stab shillings; if [the wound be] above an inch [deep], a shilling; for two inches, ; above three, shillings. . if a sinew be wounded, let bot be made with shillings. . if a foot be cut off, let shillings be paid. . if a great toe be cut off, let shillings be paid. . for each of the other toes, let one half that for the corresponding finger be paid. . if the nail of a great toe be cut off, scaetts for bot; for each of the others, make bot with scaetts. . if a freewoman loc bore [with long hair] commit any leswe [evil deed], let her make a bot of shillings. . let maiden bot [compensation for injury to an unmarried woman] be as that of a freeman. . for [breach of] the mund [protection] of a widow of the best class, of an eorl's degree, let the bot be shillings; of the second, shillings; of the third, shillings; of the fourth, shillings. . if a man carry off a widow not under his own protection by right, let the mund be twofold. . if a man buy a maiden with cattle, let the bargain stand, if it be without fraud; but if there be fraud, let him bring her home again, and let his property be restored to him. . if she bear a live child, she shall have half the property, if the husband die first. . if she wish to go away with her children, she shall have half the property. . if the husband wish to keep them [the children], [she shall have the same portion] as one child. . if she bear no child, her paternal kindred shall have the fioh [her money and chattels] and the morgen gyfe [morning gift: a gift made to the bride by her husband on the morning following the consummation of the marriage]. . if a man carry off a maiden by force, let him pay shillings to the owner, and afterwards buy [the object of] his will from the owner. . if she be betrothed to another man in money [at a bride price], let him [who carried her off] make bot with shillings. . if she become gaengang [pregnant], shillings; and shillings to the king. . if a man lie with an esne's wife, her husband still living, let him make twofold bot. . if one esne slay another unoffending, let him pay for him at his full worth. . if an esne's eye and foot be struck out or off, let him be paid for at his full worth. . if any one bind another man's esne, let him make bot with shillings. . let [compensation for] weg reaf [highway robbery] of a theow [slave] be shillings. . if a theow steal, let him make twofold bot [twice the value of the stolen goods]." - judicial procedure - 	the king and his freemen would hear and decide cases of wrongful behavior such as breach of the peace. punishment would be given to the offender by the community. 	there were occasional meetings of "hundreds", which were households, to settle widespread disputes. the chief officer was "hundreder" or "constable". he was responsible for keeping the peace of the hundred. 	the druid priests decided all disputes of the celts. - - - chapter - - - - the times: - - 	the country was inhabited by anglo-saxons. the french called it "angleterre", which means the angle or end of the earth. it was called "angle land", which later became "england". 	a community was usually an extended family. its members lived a village in which a stone church was the most prominent building. they lived in one-room huts with walls and roofs made of wood, mud, and straw. hangings covered the cracks in the walls to keep the wind out. smoke from a fire in the middle of the room filtered out of cracks in the roof. grain was ground at home by rotating by hand one stone disk on another stone disk. some villages had a mill powered by the flow of water or by horses. all freeholders had the duty of watch [at night] and ward [during the day], of following the hue and cry to chase an offender, and of taking the oath of peace. these three duties were constant until . 	farmland surrounded the villages and was farmed by the community as a whole under the direction of a lord. there was silver, copper, iron, tin, gold, and various types of stones from remote lead mines and quarries in the nation. silver pennies replaced the smaller scaetts. freemen paid "scot" and bore "lot" according to their means for local purposes. 	offa, the strongest of the saxon kings, minted high-quality silver pennies. he traded woolen coats for lava grindstones with emperor charlemagne, who used a silver denarius coin. there were denarii to the solidus and soldi to the pound of silver. these denominations were taken by england as pennies to the shilling and shillings to the pound. the pound sign, an "l" with a hash mark derived from the word libra, which meant weighing scales. 	everyone in the village went to church on sunday and brought gifts such as grain to the priest. later, contributions in the form of money became customary, and then expected. they were called "tithes" and were spent for church repair, the clergy, and poor and needy laborers. local custom determined the amount. there was also church-scot: a payment to the clergy in lieu of the first fruits of the land. the priest was the chaplain of a landlord and his parish was coextensive with that landlord's holding and could include one to several villages. the priest and other men who helped him, lived in the church building. some churches had lead roofs and iron hinges, latches, and locks on their doors. the land underneath had been given to the church by former kings and persons who wanted the church to say prayers to help their souls go from purgatory to heaven and who also selected the first priest. the priest conducted christianized easter ceremonies in the spring and (christ's mass) ceremonies in winter in place of the pagan yuletide festivities. burning incense took the place of pagan burnt animal offerings, which were accompanied by incense to disguise the odor of burning flesh. holy water replaced haunted wells and streams. christian incantations replaced sorcerer's spells. nuns assisted priests in celebrating mass and administering the sacraments. they alone consecrated new nuns. vestry meetings were community meetings held for church purposes. the people said their prayers in english, and the priest conducted the services in english. a person joined his hands in prayer as if to offer them for binding together in submission. 	the church baptized babies and officiated or gave blessings at marriage ceremonies. it also said prayers for the dying, gave them funerals, and buried them. there were burial service fees, candle dues, and plough alms. a piece of stone with the dead person's name marked his grave. it was thought that putting the name on the grave would assist identification of that person for being taken to heaven. the church heard the last wish or will of the person dying concerning who he wanted to have his property. the church taught that it was not necessary to bury possessions with the deceased. the church taught boys and girls. 	 man carried a horn slung on his shoulder as he went about his work so that he could at once send out a warning to his fellow villagers or call them in chasing a thief or other offender. the forests were full of outlaws, so strangers who did not blow a horn to announce themselves were presumed to be fugitive offenders who could be shot on sight. an eorl could call upon the ceorl farmers for about forty days to fight off an invading group. 	there were several kingdoms, whose boundaries kept changing due to warfare, which was a sin according to the church. they were each governed by a king and witan of wise men who met at a witanegemot, which was usually held three times a year, mostly on great church festivals and at the end of the harvest. the king and witan chose the witan's members of bishops, eorldormen, and thegns [landholding farmers]. the king and hereditary claims played a major part in the selection of the eorldormen, who were the highest military leaders and often of the royal family. they were also chief magistrates of large jurisdictional areas of land. the witan included officers of the king's household and perhaps other of his retinue. there was little distinction then between his gesith, fighting men, guards, household companions, dependents, and servants. the king was sometimes accompanied by his wife and sons at the witanagemot. a king was selected by the witan according to his worthiness, usually from among the royal family, and could be deposed by it. the witan and king decided on laws, taxes, and transfers of land. they made determinations of war and peace and directed the army and the fleet. the king wore a crown or royal helmet. he extended certain protections by the king's peace. he could erect castles and bridges and could provide a special protection to strangers. 	a king had not only a wergeld to be paid to his family if he were killed, but a "cynebot" of equal amount that would be paid to his kingdom's people. a king's household had a chamberlain for the royal bedchamber, a marshall to oversee the horses and military equipment, a steward as head of household, and a cupbearer. the king had income from fines for breach of his peace; fines and forfeitures from courts dealing with criminal and civil cases; salvage from ship wrecks; treasure trove [assets hidden or buried in times of war]; treasures of the earth such as gold and silver; mines; saltworks; tolls and other dues of markets, ports, and the routes by land and by river generally; heriot from heirs of his special dependents for possession of land (usually in kind, principally in horses and weapons). he also had rights of purveyance [hospitality and maintenance when traveling]. the king had private lands, which he could dispose of by his will. he also had crown lands, which belonged to his office and could not be alienated without consent of the witan. crown lands often included palaces and their appendant farms, and burhs. it was a queen's duty to run the royal estate. also, a queen could possess, manage, and dispose of lands in her name. violent queens waged wars. kingdoms were often allied by marriage between their royal families. there were also royal marriages to royalty on the continent. 	the houses of the wealthy had ornamented silk hangings on the walls. some had fine white ox horn shaved so thin they were transparent for windows. brightly colored drapery, often purple, and fly nets surrounded their beds, which were covered with the fur of animals. they slept in bed clothes on pillows stuffed with straw. tables plated with silver and gems held silver candlesticks, gold and silver goblets and cups, and lamps of gold, silver, or glass. they used silver mirrors and silver writing pens. there were covered seats, benches, and footstools with the head and feet of animals at their extremities. they ate from a table covered with a cloth. servants brought in food on spits, from which they ate. food was boiled, broiled, or baked. the wealthy ate wheat bread and others ate barley bread. ale made from barley was passed around in a cup. mead made from honey was also drunk. 	men wore long-sleeved wool and linen garments reaching almost to the knee, around which they wore a belt tied in a knot. men often wore a gold ring on the fourth finger of the right hand. leather shoes were fastened with leather thongs around the ankle. their hair was parted in the middle and combed down each side in waving ringlets. the beard was parted in the middle of the chin, so that it ended in two points. the clergy did not wear beards. great men wore gold-embroidered clothes, gilt buckles and brooches, and drank from drinking horns mounted in silver gilt or in gold. well- to-do women wore brightly colored robes with waist bands, headbands, necklaces, gem bracelets, and rings. their long hair was in ringlets and they put rouge on their cheeks. they had beads, pins, needles, tweezers of bronze, and workboxes of bronze, some highly ornamented. they were often doing needlework. silk was affordable only by the wealthy. 	most families kept a pig and pork was the primary meat. there were also sheep, goats, cows, deer, hare, and fowl. fowl was obtained by fowlers who trapped them. the inland waters yielded eels, salmon, and trout. in the fall, meat was salted to preserve it for winter meals. there were orchards growing figs, nuts, grapes, almonds, pears, and apples. also produced were beans, lentils, onions, eggs, cheese, and butter. pepper and cinnamon were imported. 	fishing from the sea yielded herrings, sturgeon, porpoise, oysters, crabs, and other fish. sometimes a whale was driven into an inlet by a group of boats. whale skins were used to make ropes. 	the roads were not much more than trails. they were often so narrow that two pack horses could hardly pass each other. the pack horses each carried two bales or two baskets slung over their backs, which balanced each other. the soft soil was compacted into a deep ditch which rains, floods, and tides, if near the sea, soon turned into a river. traveling a far distance was unsafe as there were robbers on the roads. traveling strangers were distrusted. it was usual to wash one's feet in a hot tub after traveling and to dry them with a rough wool cloth. 	there were superstitions about the content of dreams, the events of the moon, and the flights and voices of birds were often seen as signs or omens of future events. herbal mixtures were drunk for sickness and maladies. from the witch hazel plant was made a mild alcoholic astringent, which was probably used to clean cuts and sooth abrasions. 	in the peaceful latter part of the s, theodore, who had been a monk in rome, was appointed archbishop and visited all the island speaking about the right rule of life and ordaining bishops to oversee the priests. each kingdom was split up into dioceses each with one bishop. thereafter, bishops were selected by the king and his witan, usually after consulting the clergy and even the people of the diocese. the bishops came to be the most permanent element of society. they had their sees in villages or rural monasteries. the bishops came to have the same wergeld as an eorldorman: s., which was the price of about oxen. a priest had the wergeld as a landholding farmer [thegn], or s. the bishops spoke latin, but the priests of the local parishes spoke english. theodore was the first archbishop whom all the english church obeyed. he taught sacred and secular literature, the books of holy writ, ecclesiastical poetry, astronomy, arithmetic, and sacred music. theodore discouraged slavery by denying christian burial to the kidnapper and forbidding the sale of children over the age of seven. a slave became entitled to two loaves a day and to his holydays. a slave was allowed to buy his or his children's freedom. in , theodore started annual national ecclesiastical assemblies, for instance for the witnessing of important actions. the bishops, some abbots, the king, and the eorldormen were usually present. from them the people learned the benefit of common national action. there were two archbishops: one of canterbury in the south and one of york in the north. they governed the bishops and could meet with them to issue canons that would be equally valid all over the land. a bishop's house contained some clerks, priests, monks, and nun and was a retreat for the weary missionary and a school for the young. the bishop had a deacon who acted as a secretary and companion in travel, and sometimes as an interpreter. ink was made from the outer husks of walnuts steeped in vinegar. 	the learned ecclesiastical life flourished in monastic communities, in which both monks and nuns lived. hilda, a noble's daughter, became the first nun in northumbria and abbess of one of its monasteries. there she taught justice, piety, chastity, peace, and charity. several monks taught there later became bishops. kings and princes often asked her advice. many abbesses came to run monastic communities; they were from royal families. women, especially from royal families, fled to monasteries to obtain shelter from unwanted marriage or to avoid their husbands. kings and eorldormen retired to them. 	danish vikings made several invasions in the s for which a danegeld tax on land was assessed on everyone every ten to twenty years. the amount was determined by the witan and was typically s. per hide of land. (a hide was probably the amount of land which could support a family or household for a year or as much land as could be tilled annually by a single plough.) it was stored in a strong box under the king's bed. king alfred the great, who had lived for awhile in rome, unified the country to defeat the invaders. he established fortifications called "burhs", usually on hill tops or other strategic locations on the borders to control the main road and river routes into his realm. the burhs were seminal towns. they were typically walled enclosures with towers and an outer ditch and mound, instead of the hedge or fence enclosure of a tun. inside were several wooden thatched huts and a couple of churches, which were lit by earthen oil lamps. the populace met at burhgemotes. the land area protected by each burh became known as a "shire", which means a share of a larger whole. the shire or local landowners were responsible for repairing the burh fortifications. there were about thirty shires. 	alfred gathered together fighting men who were at his disposal, which included eorldormen with their hearthbands (retinues of men each of whom had chosen to swear to fight to the death for their eorldorman, and some of whom were of high rank), the king's thegns, shire thegns (local landholding farmers, who were required to bring fighting equipment such as swords, helmets, chain mail, and horses), and ordinary freemen, i.e. ceorls (who carried food, dug fortifications, and sometimes fought). since the king was compelled to call out the whole population to arms, the distinction between the king's thegns from other landholders disappeared. some great lords organized men under them, whom they provisioned. these vassals took a personal oath to their lord "on condition that he keep me as i am willing to deserve, and fulfill all that was agreed on when i became his man, and chose his will as mine." alfred had a small navy of longships with oars to fight the viking longships. 	alfred divided his army into two parts so that one half of the men were fighting while the other half was at home sowing and harvesting for those fighting. thus, any small-scale independent farming was supplanted by the open-field system, cultivation of common land, more large private estates headed by a lord, and a more stratified society in which the king and important families more powerful and the peasants more curtailed. the witan became mere witnesses. many free coerls of the older days became bonded. the village community tended to become a large private estate headed by a lord. but the lord does not have the power to encroach upon the rights of common that exist within the community. 	in , a treaty between alfred and the vikings divided the country along the war front and made the wergeld of every free farmer, whether english or viking, s. men of higher rank were given a wergeld of / marks of pure gold. a mark was probably a viking denomination and a mark of gold was equal to nine marks of silver in later times and probably in this time. the word "earl" replaced the word "eorldormen" and the word "thegn" replaced the word "aetheling" after the danish settlement. the ironed pleats of viking clothing indicated a high status of the wearer. the vikings brought combs and the practice of regular hair-combing to england. 	king alfred gave land with jurisdictional powers within its boundaries such as the following: "this is the bequest which king alfred make unequivocally to shaftesbury, to the praise of god and st. mary and all the saints of god, for the benefit of my soul, namely a hundred hides as they stand with their produce and their men, and my daughter aethelgifu to the convent along with the inheritance, since she took the veil on account of bad health; and the jurisdiction to the convent, which i myself possessed, namely obstruction and attacks on a man's house and breach of protection. and the estates which i have granted to the foundation are hides at donhead and compton, hides at handley and gussage hides at tarrant, hides at iwerve and hides at fontmell. 	the witnesses of this are edward my son and archbishop aethelred and bishop ealhferth and bishop aethelhead and earl wulfhere and earl eadwulf and earl cuthred and abbot tunberht and milred my thegn and aethelwulf and osric and brihtulf and cyma. if anyone alters this, he shall have the curse of god and st. mary and all the saints of god forever to all eternity. amen." 	sons usually succeeded their fathers on the same land as shown by this lifetime lease: "bishop denewulf and the community at winchester lease to alfred for his lifetime hides of land at alresford, in accordance with the lease which bishop tunbriht had granted to his parents and which had run out, on condition that he renders every year at the autumnal equinox three pounds as rent, and church dues, and the work connected with church dues; and when the need arises, his men shall be ready both for harvesting and hunting; and after his death the property shall pass undisputed to st. peter's. these are the signatures of the councilors and of the members of the community who gave their consent, namely ..." 	alfred invented a graduated candle with spaces indicating one hour of burning, which could be used as a clock. he used a ventilated cow's horn to put around the top of the candle to prevent its blowing out, and then devised a wooden lantern with a horn window. he described the world as like a yolk in the middle of an egg whose shell moves around it. this agreed with the position of ptolemy claudius of alexandria, who showed the curvature of the earth from north to south by observing that the polar star was higher in the north and lower in the south. that it was curved from east to west followed from the observation that two clocks placed one west and one east would record a different time for the same eclipse of the moon. 	alfred wrote poems on the worthiness of wisdom and knowledge in preference to material pleasures, pride, and fame, in dealing with life's sorrow and strife. his observations on human nature and his proverbs include: . as one sows, so will he mow. . every man's doom [judgment] returns to his door. . he who will not learn while young, will repent of it when old. . weal [prosperity] without wisdom is worthless. . though a man had acres sown with red gold, and the gold grew like grass, yet he is not a whit the worthier unless he gain friends for himself. . gold is but a stone unless a wise man has it. . it's hard to row against the sea flood; so it is against misfortune. . he who toils in his youth to win wealth, so that he may enjoy ease in his old age, has well bestowed his toil. . many a man loses his soul through silver. . wealth may pass away, but wisdom will remain, and no man may perish who has it for his comrade. . don't choose a wife for her beauty nor for wealth, but study her disposition. . many an apple is bright without and bitter within. . don't believe the man of many words. . with a few words a wise man can compass much. . make friends at market, and at church, with poor and with rich. . though one man wielded all the world, and all the joy that dwells therein, he could not therewith keep his life. . don't chide with a fool. . a fool's bolt is soon shot. . if you have a child, teach it men's manners while it is little. if you let him have his own will, he will cause you much sorrow when he comes of age. . he who spares the rod and lets a young child rule, shall rue it when the child grows old. . either drinking or not drinking is, with wisdom, good. . relatives often quarrel together. . the barkless dog bites ill. . be wise of word and wary of speech, then all shall love you. . we may outride, but not outwit, the old man. . be not so mad as to tell your friend all your thoughts. . if you and your friend fall out, then your enemy will know what your friend knew before. . don't choose a deceitful man as a friend, for he will do you harm. . the false one will betray you when you least expect it. . don't choose a scornful false friend, for he will steal your goods and deny the theft. . take to yourself a steadfast man who is wise in word and deed; he will prove a true friend in need. 	to restore education and religion, alfred disseminated the anglo- saxon chronicles; the venerable bede's ecclesiastical history of the english nation; the "consolidation of philosophy" by roman philosopher boethius, which related the use of adversity to develop the soul, and described the goodness of god and how the highest happiness comes from spiritual values and the soul, which are eternal, rather than from material or earthly pursuits, which are temporal; and pope gregory's pastoral care, which he had translated into english and was the fundamental book on the duty of a bishop, which included a duty to teach laymen; and orosius' history of the world, which he had translated into english. alfred's advice to pastors was to live as they had been taught from books and to teach this manner of life to others. to be avoided was pride, the mind's deception of seeking glory in the name of doing good works, and the corruption of high office. bede was england's first scholar, first theologian, and first historian. he wrote poetry, theological books, homilies, and textbooks on grammar, rhetoric [public speaking and debating], arithmetic, and astronomy. he adhered to the doctrine that death entered the world by the sin of adam, the first man. he began the practice of dating years from the birth of christ and believed that the earth was round. over the earth was a fiery spherical firmament. above this were the waters of the heavens. above this were the upper heavens, which contained the angels and was tempered with ice. he declared that comets portend downfalls of kingdoms, pestilence, war, winds, or heat. this reflected the church's view that a comet was a ball of fire flung from the right hand of an angry god as a warning to mankind, usually for disbelief. storms were begun by the devil. 	a famous poem, the oral legend of beowulf, a hero who led his men into adventures and performed great feats and fought monsters and dragons, was put into writing with a christian theme. in it, loyalty to one's lord is a paramount virtue. also available in writing was the story of king arthur's twelve victorious battles against the pagan saxons, authored by nennius. 	there were professional story tellers attached to great men. others wandered from court to court, receiving gifts for their story telling. men usually told oral legends of their own feats and those of their ancestors after supper. 	alfred had monasteries rebuilt with learned and moral men heading them. he built a nunnery which was headed by his daughter as prioress. he built a strong wall with four gates around london, which he had taken into his control. he appointed his son-in-law, who was one of his eorldormen, to be alderman [older man] to govern london and to be the shire's earl. a later king built a palace in london, although winchester was still the royal capital town. when the king traveled, he and his retinue were fed by the local people at their expense. 	after alfred's death, his daughter aethelflared ruled the country for seven years. she had more fortified burhs built and led soldiers to victories. 	under the royalty were the nobles. an earl headed each shire as representative of the king. the term "earl" came to denote an office instead of a nobleman. he led the array of his shire to do battle if the shire was attacked. he executed all royal commands. an earl received grants of land and could claim hospitality and maintenance for himself, his officers, and his servants. he presided over the shire court. he received one-third of the fines from the profits of justice and collected as well a third of the revenues derived from tolls and duties levied in the boroughs of his shire. the office tended to be hereditary. royal representatives called "reeves" started to assist them. the reeve took security from every person for the maintenance of the public peace. he also tracked cattle thieves, brought suspects to court, gave judgments according to the doom books, and delivered offenders to punishment. 	under the earls were the thegns. by service to the king, it was possible for a coerl to rise to become a thegn and to be given land by the king. other thegns performed functions of magistrates. a thegn was later identified as a person with five hides of land, a kitchen, a church, a bell house, a judicial place at the burhgemote [a right of magistracy], and an appointment in the king's hall. he was bound to service in war by virtue of his landholding instead of by his relationship to the king. nobility was now a territorial attribute, rather than one of birth. the wergeld of a thegn was s. when that of a ceorl or ordinary freeman was s. the wergeld of an earl or bishop was four times that of a thegn: s. the wergeld of a king or archbishop was six times that of a thegn: s. the higher a man's wergeld, the higher was his legal status in the scale of punishment, giving credible evidence, and participation in legal proceedings. the sokemen were freemen who had inherited their own land, chose their own lord, and attended and were subject to their lord's court. that is, their lord has soke [soc] jurisdiction over them. a ceorl typically had a single hide of land. a smallholder rented land of about acres from a landlord, which he paid by doing work on the lord's demesne [household or messuage] land, paying money rent, or paying a food rent such as in eggs or chickens. smallholders made up about two fifths of the population. a cottager had one to five acres of land and depended on others for his living. among these were shepherds, ploughmen, swineherds, and blacksmiths. they also participated in the agricultural work, especially at harvest time. 	it was possible for a thegn to become an earl, probably by the possession of forty hides. he might even acquire enough land to qualify him for the witan. women could be present at the witanagemot and shiregemote [meeting of the people of the shire]. they could sue and be sued in the courts. they could independently inherit, possess, and dispose of property. a wife's inheritance was her own and under no control of her husband. 	marriage required the consent of the lady and her friends. the man also had to arrange for the foster lean, that is, remuneration for rearing and support of expected children. he also declared the amount of money or land he would give the lady for her consent, that is, the morgengift, and what he would bequeath her in case of his death. it was given to her on the morning after the wedding night. the family of the bride was paid a "mund" for transferring the rightful protection they possessed over her to the family of the husband. if the husband died and his kindred did not accept the terms sanctioned by law, her kindred could repurchase the rightful protection. if she remarried within a year of his death, she had to forfeit the morgengift and his nearest kin received the lands and possessions she had. the word for man was "waepnedmenn" or weaponed person. a woman was "wifmenn" or wife person, with "wif" being derived from the word for weaving. 	great men and monasteries had millers, smiths, carpenters, architects, agriculturists, fishermen, weavers, embroiders, dyers, and illuminators. 	for entertainment, minstrels sang ballads about heroes or bible stories, harpers played, jesters joked, and tumblers threw and caught balls and knives. there was gambling, dice games, and chasing deer with hounds. 	fraternal guilds were established for mutual advantage and protection. a guild imposed fines for any injury of one member by another member. it assisted in paying any murder fine imposed on a member. it avenged the murder of a member and abided by the consequences. it buried its members and purchased masses for his soul. 	mercantile guilds in seaports carried out commercial speculations not possible by the capital of only one person. 	there were some ale houses, probably part of certain dwellings. 	the danegeld tax of s. and later s. upon every hide of land came to be imposed for maintaining forces sufficient to clear the british seas of danish pirates or to buy off the ravages of danish invaders. - the law - 	alfred issued a set of laws to cover the whole country, which were drawn from the best laws of each region. there was no real distinction between the concepts of law, morals, and religion. 	the importance of telling the truth and keeping one's word are expressed by this law: " . at the first we teach that it is most needful that every man warily keep his oath and his wed. if any one be constrained to either of these wrongfully, either to treason against his lord, or to any unlawful aid; then it is juster to belie than to fulfill. but if he pledge himself to that which is lawful to fulfill, and in that belie himself, let him submissively deliver up his weapon and his goods to the keeping of his friends, and be in prison forty days in a king's tun: let him there suffer whatever the bishop may prescribe to him..." let his kinsmen feed him, if he has no food. if he escapes, let him be held a fugitive and be excommunicate of the church. 	the word of a bishop and of the king were incontrovertible without an oath. 	the ten commandments were written down as this law: "the lord spake these words to moses, and thus said: i am the lord thy god. i led thee out of the land of the egyptians, and of their bondage. . love thou not other strange gods above me. . utter thou not my name idly, for thou shalt not be guiltless towards me if thou utter my name idly. . remember that thou hallow the rest day. work for yourselves six days, and on the seventh rest. for in six days, christ wrought the heavens and the earth, the seas, and all creatures that are in them, and rested on the seventh day: and therefore the lord hallowed it. . honor thy father and thy mother whom the lord hath given thee,that thou mayst be the longer living on earth. . slay thou not. . commit thou not adultery. . steal thou not. . say thou not false witness. . covet thou not thy neighbor's goods unjustly. . make thou not to thyself golden or silver gods." 	if any one fights in the king's hall, or draws his weapon, and he be taken; be it in the king's doom, either death, or life, as he may be willing to grant him. if he escape, and be taken again, let him pay for himself according to his wergeld, and make bot for the offense, as well wer as wite, according as he may have wrought. 	if a man fights before a king's ealdorman in the gemot, let him make bot with wer and wite as it may be right; and before this s. to the ealdorman as wite. if he disturbs the folkmote by drawing his weapon, s. to the ealdorman as wite. if any of this happens before a king's ealdorman's junior, or a king's priest, s. as wite. 	if any one fights in a ceorlish man's dwelling, let him make bot of s. to the ceorl. if he draws his weapon but doesn't fight, let it be half of that. if, however, either of these happens to a man with a wergeld of s., let it increase threefold of the ceorlish bot; and if to a man with a wergeld of s., let it increase twofold of the bot of the man with a wergeld of s. breach of the king's dwelling [breaking and entering] shall be s.; an archbishop's, s.; any other bishop's, and an ealdorman's, s.;. a s. wergeld man's, s.; a s. wergeld man's, s.; and a ceorl's s. 	if any one plot against the king's life, of himself, or by harboring of exiles, or of his men; let him be liable with his life and in all that he has; or let him prove himself according to his lord's wer. 	if any one with a band or gang of men slays an unoffending man, let him who acknowledges the deathblow pay wer and wite. if the slain man had a wergeld of s, let every one who was of the gang pay s. as gangbot. if he had a wergeld of s., let every one pay s. as gangbot. if he had a wergeld of s., let every one pay s. if a gang does this, and afterwards denies it on oath, let them all be accused, and let them then all pay the wer in common; and all, one wite, such as shall belong to the wer. 	if any one lends his weapon to another so he may kill some one with it, they may join together if they will in the wer. if they will not join together, let him who lent the weapon pay of the wer a third part, and of the wite a third part. 	with his lord a man may fight free of liability for homicide, if any one attack the lord: thus may the lord fight for his man. likewise, a man may fight with his born kinsman, if a man attack him wrongfully, except against his lord. and a man may fight free of liability for homicide, if he finds another with his lawful wife, within closed doors, or under one covering, or with his lawfully born daughter, or with his lawfully born sister, or with his mother, who was given to his father as his lawful wife. if a man knows his foe is sitting at his home, he may not fight with him before he demands justice of him. if he has such power that he can beset his foe, and besiege him within, let him keep him within for seven days, and not attack him if he will remains within. and, then, after seven days, if he surrenders, and gives up his weapons, let him be kept safe for thirty days, and let notice of him be given to his kinsmen and his friends. but if he does not have sufficient power to besiege him within, let him ride to the ealdorman, and beg aid of him. if he will not aid him, let him ride to the king before he fights. in like manner also, if a man come upon his foe, and he did not know beforehand that he was staying at his home; if he is willing to give up his weapons, let him be kept for thirty days, and let notice of him be given to his friends; if he will not give up his weapons, then he may attack him. if he is willing to surrender, and to give up his weapons, and any one after that attack him, let him pay as well wer as wound, as he may do, and wite, and let him have forfeited his compensation to his kin. every church shall have this peace: if a fugitive flee to one for sanctuary, no one may drag him out for seven days. if he is willing to give up his weapons to his foes, let him stay thirty days, and then let notice of him be given to his kinsmen. if any man confess in church any offenses which had not been before revealed, let him be half forgiven. 	if a man from one holdgetael wishes to seek a lord in another holdgetael, let him do it with the knowledge of the ealdorman whom he before followed in his shire. if he does it without his knowledge, let him who treats him as his man pay s. as wite, one-half to the king in the shire where he before followed and one-half in that into which he comes. if he has done anything wrong where he was before, let him make bot for it who has there received him as his man; and to the king s. as wite. 	"if any one steals so that his wife and children don't know it, he shall pay shillings as wite. but if he steals with the knowledge of all his household, they shall all go into slavery. a boy of ten years may be privy to a theft." 	"if one who takes a thief, or holds him for the person who took him, lets the thief go, or conceals the theft, he shall pay for the thief according to his wer. if he is an eorldormen, he shall forfeit his shire, unless the king is willing to be merciful to him." 	if any one steal in a church, let him pay the lawful penalty and the wite, and let the hand be struck off with which he did it. if he will redeem the hand, and that be allowed him, let him pay as may belong to his wer. 	if a man slanders another, the penalty is no lighter thing than that his tongue be cut out; which must not be redeemed at any cheaper rate than it is estimated at according to his wer. 	if one deceives an unbetrothed woman and sleep with her, he must pay for her and have her afterwards to wife. but if her father not approve, he should pay money according to her dowry. 	"if a man seize hold of the breast of a ceorlish woman, let him make bot to her with shillings. if he throw her down and do not lie with her, let him make bot with shillings. if he lie with her, let him make bot with shillings. if another man had before lain with her, then let the bot be half that. if this befall a woman more nobly born, let the bot increase according to the wer." 	"if any one, with libidinous intent, seize a nun either by her raiment or by her breast without her leave, let the bot be twofold, as we have before ordained concerning a laywoman." 	"if a man commit a rape upon a ceorl's female slave, he must pay bot to the ceorl of shillings and a wite [fine to the king] of shillings. if a male theow rape a female theow, let him make bot with his testicles." 	for the first dog bite, the owner pays shillings, for the second, shillings, for the third, shillings. 	an ox which gores someone to death shall be stoned. 	if one steals or slays another's ox, he must give two oxen for it. 	the man who has land left to him by his kindred must not give it away from his kindred, if there is a writing or witness that such was forbidden by those men who at first acquired it, and by those who gave it to him; and then let that be declared in the presence of the king and of the bishop, before his kinsmen. - judicial procedure - 	cases were held at monthly meetings of the hundred court. the king or one of his reeves, conducted the trial by compurgation. 	in compurgation, the one complaining, called the "plaintiff", and the one defending, called the "defendant", each told their story and put his hand on the bible and swore "by god this oath is clean and true". a slip or a stammer would mean he lost the case. otherwise, community members would stand up to swear on behalf of the plaintiff or the defendant as to their reputation for veracity. the value of a man's oath was commensurate with his value or wergeld. a man's brothers were usually his compurgators. if these "compurgators" were too few, usually twelve in number, or recited poorly, their party lost. if this process was inconclusive, the parties could bring witnesses to declare such knowledge as they had as neighbors. these witnesses, male and female, swore to particular points determined by the court. 	if the witnesses failed, the defendant was told to go to church and to take the sacrament only if he or she were innocent. if he or she took the sacrament, he or she was tried by the process of "ordeal", which was administered by the church. in the ordeal by cold water, he was given a drink of holy water and then bound hand and foot and thrown into water. if he floated, he was guilty. if he sank, he was innocent. it was not necessary to drown to be deemed innocent. in the ordeal by hot water, he had to pick up a stone from inside a boiling cauldron. if his hand was healing in three days, he was innocent. if it was festering, he was guilty. a similar ordeal was that of hot iron, in which one had to carry in his hands a hot iron for a certain distance. the results of the ordeal were taken to indicate the will of god. presumably a person convicted of murder, i.e. killing by stealth, or robbery [taking from a person's robe, that is, his person or breaking into his home to steal] would be hung and his possessions confiscated. a bishop's oath was incontrovertible. accused archbishops and bishops could clear themselves with an oath that they were guiltless. lesser ranks could clear themselves with the oaths of three compurgators of their rank or, for more serious offenses, undergo the ordeal of the consecrated morsel. for this, one would swallow a morsel; if he choked on it, he was guilty. 	any inanimate or animate object or personal chattel which was found by a court to be the immediate cause of death was forfeited as "deodand", for instance, a tree from which a man fell to his death, a beast which killed a man, a sword of a third party not the slayer that was used to kill a man. the deodand was to go to the dead man's kin so they could wreak their vengeance on it, which in turn would cause the dead man to lie in peace. 	this is a lawsuit regarding rights to feed pigs in a certain woodland: 	"in the year which had passed since the birth of christ, and in the course of the second indiction, and during the reign of beornwulf, king of mercia, a council meeting was held in the famous place called clofesho, and there the said king beornwulf and his bishops and his earls and all the councilors of this nation were assembled. then there was a very noteworthy suit about wood pasture at sinton, towards the west in scirhylte. the reeves in charge of the pigherds wished to extend the pasture farther, and take in more of the wood than the ancient rights permitted. then the bishop and the advisors of the community said that they would not admit liability for more than had been appointed in aethelbald's day, namely mast for swine, and that the bishop and the community should have two thirds of the wood and of the mast. the archbishop wulfred and all the councilors determined that the bishop and the community might declare on oath that it was so appointed in aethelbald's time and that they were not trying to obtain more, and the bishop immediately gave security to earl eadwulf to furnish the oath before all the councilors, and it was produced in days at the bishop's see at worcester. at that time hama was the reeve in charge of the pigherds at sinton, and he rode until he reached worcester, and watched and observed the oath, as earl eadwulf bade him, but did not challenge it. here are the names and designations of those who were assembled at the council meeting ..." - - - chapter - - - - the times: - - 	there were many large landholders such as the king, earls, and bishops. earls were noblemen by birth, and often relatives of the king. they were his army commanders and the highest civil officials, each responsible for a shire. a breach of the public peace of an earl would occasion a fine. lower in social status were freemen: sokemen, and then, in decreasing order, villani [villeins], bordarii, and cottarii. the servi were the slaves. probably all who were not slaves were freemen. 	kings typically granted land in exchange for services of military duties, maintaining fortresses, and repairing bridges. less common services required by landlords include equipping a guard ship and guarding the coast, guarding the lord, military watch, maintaining the deer fence at the king's residence, alms giving, and church dues. since this land was granted in return for service, there were limitations on its heritability and often an heir had to pay a heriot to the landlord to obtain the land. a heriot was originally the armor of a man killed, which went to the king. the heriot of a thegn who had soken [or jurisdiction over their own lands] came to be about s.; of a kings' thegn about four lances, two coats of mail, two swords, and s.; of an earl about eight horses, four saddled and four unsaddled, eight lances, four coats of mail, four swords, and s. 	there were several thousand thegns, rich and poor, who held land directly of the king. some thegns had soken and others did not. free farmers who had sought protection from thegns in time of war now took them as their lords. a freeman could chose his lord, following him in war and working his land in peace. all able-bodied freemen were liable to military service in the fyrd [national militia], but not in a lord's private wars. in return, the lord would protect him against encroaching neighbors, back him in the courts of law, and feed him in times of famine. but often, lords raided each other's farmers, who fled into the hills or woods for safety. often a lord's fighting men stayed with him at his large house, but later were given land with inhabitants on it, who became his tenants. the lords were the ruling class and the greatest of them sat in the king's council along with bishops, abbots, and officers of the king's household. the lesser lords were local magnates, who officiated at the shire and hundred courts. 	staghunting, foxhunting, and hawking were reserved for lords who did not work with their hands. every free born person had the right to hunt other game. 	there was a great expansion of arable land. some land had been specifically allocated to certain individuals. some was common land, held by communities. if a family came to pay the dues and fines on certain common land, it could become personal to that family and was then known as heirland. most land came to be privately held from community-witnessed allotments or inheritance. bookland was those holdings written down in books. this land was usually land that had been given to the church or monasteries because church clerics could write. so many thegns gave land to the church, usually a hide, that the church held / of the land of the realm. folkland was that land that was left over after allotments had been made to the freemen and which was not common land. it was public land and a national asset and could be converted to heirland or bookland only by action of the king and witan. it could also be rented by services to the state via charter. a holder of folkland might express a wish, e.g. by testamentary action, for a certain disposition of it, such as an estate for life or lives for a certain individual. but a distinct act by the king and witan was necessary for this wish to take effect. small private transactions of land could be done by "livery of seisin" in the presence of neighbors. all estates in land could be let, lent, or leased by its holders, and was then known as "loenland". 	ploughs and wagons could be drawn by four or more oxen or horses in sets of two behind each other. oxenshoes and horseshoes prevented lameness due to cracked hooves. horse collars especially fitted for horses, replaced oxen yoke that had been used on horses. the horse collar did not restrict breathing and enabled horses to use the same strength of oxen. also, horses had better endurance and faster speed. 	a free holder's house was wood, perhaps with a stone foundation, and roofed with thatch or tiles. there was a main room or hall, with bed chambers around it. beyond was the kitchen, perhaps outside under a lean-to. these buildings were surrounded by a bank or stiff hedge. 	simple people lived in huts made from wood and mud, with one door and no windows. they slept around a wood-burning fire in the middle of the earthen floor. they wore shapeless clothes of goat hair and unprocessed wool from their sheep. they ate rough brown bread, vegetable and grain broth, ale from barley, bacon, beans, milk, cabbage, onion, apples, plums, cherries, and honey for sweetening or mead. vegetables grown in the country included onions, leeks, celery, lettuce, radish, carrots, garlic, shallots, parsnip, dill, chervil, marigold, coriander, and poppy. in the summer, they ate boiled or raw veal and wild fowl such as ducks, geese, or pigeons, and game snared in the forest. poultry was a luxury food, but recognized as therapeutic for invalids, especially in broth form [chicken soup]. venison was highly prized. there were still some wild boar, which were hunted with long spears, a greyhound dog, and hunting horns. they sometimes mated with the domestic pigs which roamed the woodlands. in september, the old and infirm pigs were slaughtered and their sides of bacon smoked in the rafters for about a month. their intestines provided skin for sausages. in the fall, cattle were slaughtered and salted for food during the winter because there was no more pasture for them. however, some cows and breed animals were kept through the winter. 	for their meals, people used wooden platters, sometimes earthenware plates, drinking horns, drinking cups from ash or alderwood turned on a foot-peddled pole lathe, and bottles made of leather. their bowls, pans, and pitchers were made by the potter's wheel. water could be boiled in pots made of iron, brass, lead, or clay. water could be carried in leather bags because leather working preservative techniques improved so that tanning prevented stretching or decaying. at the back of each hut was a hole in the ground used as a latrine, which flies frequented. moss was used for toilet paper. parasitical worms in the stool were ubiquitous. 	most of the simple people lived in villages of about homes circling a village green or lining a single winding lane. there were only first names, and these were usually passed down family lines. to grind their grain, the villagers used hand mills with crank and gear, or a communal mill, usually built of oak, driven by power transmitted through a solid oak shaft, banded with iron as reinforcement, to internal gear wheels of elm. almost every village had a watermill. it might be run by water shooting over or flowing under the wheel. 	clothing for men and women was made from coarse wool, silk, and linen and was usually brown in color. only the wealthy could afford to wear linen or silk. men also wore leather clothing, such as neckpieces, breeches, ankle leathers, shoes, and boots. boots were worn when fighting. they carried knives or axes under metal belts. they could carry items by tying leather pouches onto their belts with their drawstrings. they wore leather gloves for warmth and for heavy working with their hands. 	people were as tall, strong and healthy as in the late s, not having yet endured the later malnourishment and overcrowding that was its worst in the s and s. their teeth were very healthy. most adults died in their s, after becoming arthritic from hard labor. people in their s were deemed venerable. boys of twelve were considered old enough to swear an oath of allegiance to the king. girls married in their early teens, often to men significantly older. 	the lands of the large landholding lords were administered by freemen. they had wheat, barley, oats, and rye fields, orchards, vineyards for wine, and beekeeping areas for honey. on this land lived not only farm laborers, cattle herders, shepherds, goatherds, and pigherds, but craftsmen such as goldsmiths, hawkkeepers, dogkeepers, horsekeepers, huntsmen, foresters, builders, weaponsmiths, embroiders, bronze smiths, blacksmiths, watermill wrights, wheelwrights, wagon wrights, iron nail makers, potters, soap makers (made from wood ashes reacting chemically with fats or oils), tailors, shoemakers, salters (made salt at the "wyches", which later became towns ending with '-wich'), bakers, cooks, and gardeners. most men did carpentry work. master carpenters worked with ax, hammer, and saw to make houses, doors, bridges, milk buckets, washtubs, and trunks. blacksmiths made gates, huge door hinges, locks, latches, bolts, and horseshoes. the lord loaned these people land on which to live for their life, called a "life estate", in return for their services. the loan could continue to their widows or children who took up the craft. mills were usually powered by water. candles were made from beeswax, which exuded a bright and steady light and pleasant smell, or from mutton fat, which had an unpleasant odor. the wheeled plough and iron-bladed plough made the furrows. one man held the plough and another walked with the oxen, coaxing them forward with a stick and shouts. seeds were held in an apron for seeding. farm implements included spades, shovels, rakes, hoes, buckets, barrels, flails, and sieves. plants were pruned to direct their growth and to increase their yield. everyone got together for feasts at key stages of the farming, such as the harvest. easter was the biggest feast. when the lord was in the field, his lady held their estate. there were common lands of these estates as well as of communities. any proposed new settler had to be admitted at the court of this estate. 	the land of some lords included fishing villages along the coasts. from the sea were caught herrings, salmon, porpoises, sturgeon, oysters, crabs, mussels, cockles, winkles, plaice, flounder, and lobsters. sometimes whales were driven into an inlet by many boats. river fish included eels, pike, minnows, burbot, trout, and lampreys. they were caught by brushwood weirs, net, bait, hooks, and baskets. oysters were so numerous that they were eaten by the poor. the king's peace extended over the waterways. if mills, fisheries, weirs, or other structures were set up to block them, they were to be destroyed and a penalty paid to the king. 	other lords had land with iron mining industries. ore was dug from the ground and combined with wood charcoal in a shaft furnace to be smelted into liquid form. wood charcoal was derived from controlled charring of the wood at high temperatures without using oxygen. this burned impurities from it and left a purer carbon, which burned better than wood. the pure iron was extracted from this liquid and formed into bars. to keep the fire hot, the furnaces were frequently placed at windswept crossings of valleys or on the tops of hills. 	some lords had markets on their land, for which they charged a toll for participation. there were about fifty markets in the nation. cattle and slaves (from the word "slav") were the usual medium of exchange. an ox was still worth about d. shaking hands was symbolic of an agreement for a sale, which had to be carried out in front of witnesses at the market for any property worth over d. the higher the value of the property, the more witnesses were required. witnesses were also required for the exchange of property and to vouch for cattle having being born on the property of a person claiming them. people traveled to markets on deep, sunken roads and narrow bridges kept in repair by certain men who did this work as their service to the king. the king's peace extended to a couple of high roads, i.e. highways, running the length of the country and a couple running its width. 	salt was used throughout the nation to preserve meat over the winter. inland saltworks had an elaborate and specialized organization. the chief one used saltpans and furnaces to extract salt from natural brine springs. they formed little manufacturing enclaves in the midst of agricultural land, and they were considered to be neither large private estates headed by a lord nor appurtenant to such. they belonged jointly to the king and the local earl, who shared, at a proportion of two to one, the proceeds of the tolls upon the sale of salt and methods of carriage on the ancient salt ways according to cartload, horse load, or man load. sometimes there were investors in a portion of the works who lived quite at distance away. the sales of salt were mostly retail, but some bought to resell. peddlers carried salt to sell from village to village. 	some smiths traveled for their work, for instance, stonewrights building arches and windows in churches, and lead workers putting lead roofs on churches. 	an example of a grant of hides of land is: "[god has endowed king edred with england], wherefore he enriches and honors men, both ecclesiastic and lay, who can justly deserve it. the truth of this can be acknowledged by the thegn aelfsige hunlafing through his acquisition of the estate of hides at alwalton for himself and his heirs, free from every burden except the repair of fortifications, the building of bridges and military service; a prudent landowner church dues, burial fees and tithes. [this land] is to be held for all time and granted along with the things both great and small belonging to it." 	a bishop gave land to a faithful attendant for his life and two other lives as follows: "in a.d., i, bishop werfrith, with the permission and leave of my honorable community in worcester, grant to wulfsige, my reeve, for his loyal efficiency and humble obedience, one hide of land at aston as herred held it, that is, surrounded by a dyke, for three lives and then after three lives the estate shall be given back without any controversy to worcester." 	at seaports on the coast, goods were loaded onto vessels owned by english merchants to be transported to other english seaports. london was a market town on the north side of the thames river and the primary port and trading center for foreign merchants. streets that probably date from this time include milk, bread, and wood streets, and honey lane. there were open air markets such as billingsgate. there were wooden quays over much of the river front. houses were made of wood, with one sunken floor, or a ground floor with a cellar beneath. some had central stone hearths and earth latrines. there were crude pottery cooking pots, beakers and lamps, wool cloth, a little silk, simple leather shoes, pewter jewelry, looms, and quernstones (for grinding flour). wool, skins, hides, wheat, meal, beer, lead, cheese, salt, and honey were exported. wine (mostly for the church), fish, timber, pitch, pepper, garlic, spices, copper, gems, gold, silk, dyes, oil, brass, sulphur, glass, slaves, and elephant and walrus ivory were imported. goods from the continent were sold at open stalls in certain streets. furs and slaves were traded. there was a royal levy on exports by foreigners merchants. southwark, across the thames river from london,was reachable by a bridge. southwark contained sleazy docks, prisons, gaming houses, and brothels. 	guilds in london were first associations of neighbors for the purposes of mutual assistance. they were fraternities of persons by voluntary compact to assist each other in poverty, including their widows or orphans and the portioning of poor maids, and to protect each other from injury. their essential features are and continue to be in the future: ) oath of initiation, ) entrance fee in money or in kind and a common fund, ) annual feast and mass, ) meetings at least three times yearly for guild business, ) obligation to attend all funerals of members, to bear the body if need be from a distance, and to provide masses for the dead, ) the duty of friendly help in cases of sickness, imprisonment, house burning, shipwreck, or robbery, ) rules for decent behavior at meetings, and ) provisions for settling disputes without recourse to the law. both the masses and the feast were attended by the women. frequently the guilds also had a religious ceremonial to affirm their bonds of fidelity. they readily became connected with the exercise of trades and with the training of apprentices. they promoted and took on public purposes such as the repairing of roads and bridges, the relief of pilgrims, the maintenance of schools and almshouses, and the periodic performance of pageants and miracle plays telling scriptural history, which could last for several days. the devil often was prominent in miracle plays. 	many of these london guilds were known by the name of their founding member. there were also frith guilds (peace guilds) and a knights' guild. the frith guild's main object was to enforce the king's laws, especially the prevalent problem of theft. they were especially established by bishops and reeves. members met monthly and contributed about d. to a common fund, which paid a compensation for items stolen. they each paid s. towards the pursuit of the thief. the members were grouped in tens. members with horses were to track the thief. members without horses worked in the place of the absent horse owners until their return. when caught, the thief was tried and executed. overwhelming force was used if his kindred tried to protect him. his property was used to compensate the victim for his loss and then divided between the thief's wife, if she was innocent, the king, and the guild. owners of slaves paid into a fund to give one half compensation to those who lost slaves by theft or escape, and recaptured slaves were to be stoned to death or hanged. the members of the peace guild also feasted and drank together. when one died, the others each sang a song or paid for the singing of fifty psalms for his soul and gave a loaf. 	the knights' guild was composed of thirteen military persons to whom king edgar granted certain waste land in the east of london, toward aldgate, and also portsoken, which ran outside the eastern wall of the city to the thames, for prescribed services performed, probably defense of the vulnerable east side of the city. this concession was confirmed by king edward the confessor in a charter at the suit of certain citizens of london, the successors of these knights. edward granted them sac and soke [cause and suit] jurisdiction over their men. 	edward the confessor made these rules for london: . be it known that within the space of three miles from all parts outside of the city a man ought not to hold or hinder another, and also should not do business with him if he wish to come to the city under its peace. but when he arrives in the city, then let the market be the same to the rich man as to the poor. . be it also known that a man who is from the court of the king or the barons ought not to lodge in the house of any citizen of london for three nights, either by privilege or by custom, except by consent of the host. for if he force the host to lodge him in his house and there be killed by the host, let the host choose six from his relatives and let him as the seventh swear that he killed him for the said cause. and thus he will remain quit of the murder of the deceased towards the king and relatives and lords of the deceased. . and after he has entered the city, let a foreign merchant be lodged wherever it please him. but if he bring dyed cloth, let him see to it that he does not sell his merchandise at retail, but that he sell not less than a dozen pieces at a time. and if he bring pepper, or cumin, or ginger, or alum, or brasil wood, or resin, or incense, let him sell not less than fifteen pounds at a time. but if he bring belts, let him sell not less than a thousand at a time. and if he bring cloths of silk, or wool or linen, let him see that he cut them not, but sell them whole. but if he bring wax, let him sell not less than one quartanum. also a foreign merchant may not buy dyed cloth, nor make the dye in the city, nor do any work which belongs by right to the citizens. . also no foreign merchant with his partner may set up any market within the city for reselling goods in the city, nor may he approach a citizen for making a bargain, nor may he stop longer in the city. 	every week in london there was a folkmote at st. paul's churchyard, where majority decision was a tradition. by , it had lost much of its power to the husting [household assembly in danish] court. the folkmote then had responsibility for order and was the sole authority for proclaiming outlaws. it met three times a year at st. paul's churchyard and there acclaimed the sheriff and justiciar, or if the king had chosen his officer, heard who was chosen and listened to his charge. it also yearly arranged the watch and dealt with risks of fire. it was divided into wards, each governed by an alderman who presided over the wardmote, and represented his ward at the folkmote. each guild became a ward. the chief alderman was the portreeve. london paid one-eighth of all the taxes of england. 	later in the towns, merchant guilds grew out of charity associations whose members were bound by oath to each other and got together for a guild feast every month. some traders of these merchant guilds became so prosperous that they became landholders. many market places were dominated by a merchant guild, which had a monopoly of the local trade. in the great mercantile towns all the land and houses would be held by merchants and their dependents, all freeholders were connected with a trade, and everyone who had a claim on public office or magistry would be a member of the guild. the merchant guild could admit into their guild country villeins, who became freemen if unclaimed by their lords for a year and a day. every merchant who had made three long voyages on his own behalf and at his own cost ranked as a thegn. there were also some craft guilds composed of handicraftsmen or artisans. escaped bonded agricultural workers, poor people, and traders without land migrated to towns to live, but were not citizens. 	towns were largely self-sufficient, but salt and iron came from a distance. the king's established in every shire at least one town with a market place where purchases would be witnessed, and a mint where reliable money was coined by a moneyer, who put his name on his coins. there were eight moneyers in london. coins were issued to be of value for only a couple of years. then one had to exchange them for newly issued ones at a rate of about old for or new. the difference constituted a tax. roughly % of the people lived in towns. some took surnames such as tanner, weaver, or carpenter. some had affectionate or derisive nicknames such as clear-hand, fresh friend, soft bread, foul beard, money taker, or penny purse. craftsmen in the s included goldsmiths, embroiderers, illuminators of manuscripts, and armorers. 	edward the confessor, named such for his piety, was a king of years who was widely respected for his intelligence, resourcefulness, good judgment, and wisdom. his educated queen edith, whom he relied on for advice and cheerful courage, was a stabilizing influence on him. they were served by a number of thegns, who had duties in the household, which was composed of the hall, the courtyard, and the bedchamber. they were important men - thegns by rank. they were landholders, often in several areas, and held leading positions in the shires. they were also priests and clerics, who maintained the religious services and performed tasks for which literacy was necessary. edward was the first king to have a "chancellor". he kept a royal seal and was the chief royal chaplain. he did all the secretarial work of the household and court, drew up and sealed the royal writs, conducted the king's correspondence, and kept all the royal accounts. the word "chancellor" signified a screen behind which the secretarial work of the household was done. he had the special duty of securing and administering the royal revenue from vacant benefices. the most important royal officers were the chamberlains, who took care of the royal bedchamber and adjoining wardrobe used for dressing and storage of valuables, and the priests. these royal officers had at first been responsible only for domestic duties, but gradually came to assume public administrative tasks. 	edward wanted to avoid the pressures and dangers of living in the rich and powerful city of london. so he rebuilt a monastic church, an abbey, and a palace at westminster about two miles upstream. he started the growth of westminster as a center of royal and political power; kings' councils met there. royal coronations took place at the abbey. since edward traveled a lot, he established a storehouse-treasury at winchester to supplement his traveling wardrobe. at this time, spanish stallions were imported to improve english horses. london came to have the largest and best trained army in england. 	the court invited many of the greatest magnates and prelates [highest ecclesiastical officials, such as bishops] of the land to the great ecclesiastical festivals, when the king held more solemn courts and feasted with his vassals for several days. these included all the great earls, the majority of bishops, some abbots, and a number of thegns and clerics. edward had a witan of wise men to advise him, but sometimes the king would speak in the hall after dinner and listen to what comments were made from the mead-benches. as the court moved about the country, many men came to pay their respects and attend to local business. edward started the practice of king's touching people to cure them of scrofula, a disease which affected the glands, especially in the head and neck. it was done in the context of a religious ceremony. 	the main governmental activities were: war, collection of revenue, religious education, and administration of justice. for war, the shires had to provide a certain number of men and the ports quotas of ships with crews. the king was the patron of the english church. he gave the church peace and protection. he presided over church councils and appointed bishops. as for the administration of justice, the public courts were almost all under members of edward's court, bishops, earls, and reeves. edward's mind was often troubled and disturbed by the threat that law and justice would be overthrown, by the pervasiveness of disputes and discord, by the raging of wicked presumption, by money interfering with right and justice, and by avarice kindling all of these. he saw it as his duty to courageously oppose the wicked by taking good men as models, by enriching the churches of god, by relieving those oppressed by wicked judges, and by judging equitably between the powerful and the humble. he was so greatly revered that a comet was thought to accompany his death. 	the king established the office of the chancery to draft documents and keep records. it created the writ, which was a small piece of parchment [sheep skin] addressed to a royal official or dependent commanding him to perform some task for the king. by the s a.d., the writ contained a seal: a lump of wax with the impress of the great seal of england which hung from the bottom of the document. writing was done with a sharpened goose-wing quill. ink was obtained from mixing fluid from the galls made by wasps for their eggs on oak trees, rainwater or vinegar, gum arabic, and iron salts for color. 	a king's grant of land entailed two documents: a charter giving boundaries and conditions and a writ, usually addressed to the shire court, listing the judicial and financial privileges conveyed with the land. these were usually sac and soke [possession of jurisdiction of a private court of a noble or institution to execute the laws and administer justice over inhabitants and tenants of the estate], toll [right to have a market and to collect a payment on the sale of cattle and other property on the estate] and team [probably the right to hold a court to determine the honesty of a man accused of illegal possession of cattle or of buying stolen cattle by inquiring of the alleged seller or a warrantor, even if an outsider], and infangenetheof [the authority to hang and take the chattels of a thief caught on the estate]. 	the town of coventry consisted of a large monastery estate and a large private estate headed by a lord. the monastery was granted by edward the confessor full freedom and these jurisdictions: sac and soke, toll and team, hamsocne [the authority to fine a person for breaking into and making entry by force into the dwelling of another], forestall [the authority to fine a person for robbing others on the road], bloodwite [the authority to impose a forfeiture for assault involving bloodshed], fightwite [the authority to fine for fighting], weordwite [the authority to fine for manslaughter, but not for willful murder], and mundbryce [the authority to fine for any breach of the peace, such as trespass on lands]. 	every man was expected to have a lord to whom he gave fealty. he swore by this fealty oath: "by the lord, before whom this relic is holy, i will be to faithful and true, and love all that he loves, and shun all that he shuns, according to god's law, and according to the world's principle, and never, by will nor by force, by word nor by work, do ought of what is loathful to him; on condition that he keep me as i am willing to deserve, and all that fulfill that our agreement was, when i to him submitted and chose his will." if a man was homeless or lordless, his brothers were expected to find him such, e.g. in the folkmote. otherwise, he was to be treated as a fugitive and could be slain, and anyone who had harbored him would pay a penalty. brothers were also expected to protect their minor kinsmen. 	marriages were determined by men asking women to marry them. if a woman said yes, he paid a sum to her kin for her "mund" [jurisdiction or protection over her] and gave his oath to them to maintain and support the woman and any children born. as security for this oath, he gave a valuable object or "wed". the couple were then betrothed. marriage ceremonies were performed by priests in churches. the groom had to bring friends to his wedding as sureties to guarantee his oath to maintain and support his wife and children. those who swore to take care of the children were called their "godfathers". the marriage was written into church records. after witnessing the wedding, friends ate the great loaf, or first bread made by the bride. this was the forerunner of the wedding cake. they drank special ale, the "bride ale" (from hence the work "bridal"), to the health of the couple. 	women could own land, houses, and furniture and other property. they could even make wills that disinherited their sons. this marriage agreement with an archbishop's sister provides her with land, money, and horsemen: 	"here in this document is stated the agreement which wulfric and the archbishop made when he obtained the archbishop's sister as his wife, namely he promised her the estates at orleton and ribbesford for her lifetime, and promised her that he would obtain the estate at knightwick for her for three lives from the community at winchcombe, and gave her the estate at alton to grant and bestow upon whomsoever she pleased during her lifetime or at her death, as she preferred, and promised her mancuses of gold and men and horses. the witnesses that this agreement was made as stated were archbishop wulfstan and earl leofwine and bishop aethelstan and abbot aelfweard and the monk brihtheah and many good men in addition to them, both ecclesiastics and laymen. there are two copies of this agreement, one in the possession of the archbishop at worcester and the other in the possession of bishop aethelstan at hereford." 	this marriage agreement provided the wife with money, land, farm animals and farm laborers; it also names sureties, the survivor of whom would receive all this property: "here is declared in this document the agreement which godwine made with brihtric when he wooed his daughter. in the first place he gave her a pound's weight of gold, to induce her to accept his suit, and he granted her the estate at street with all that belongs to it, and acres at burmarsh and in addition oxen and cows and horses and slaves. this agreement was made at kingston before king cnut, with the cognizance of archbishop lyfing and the community at christchurch, and abbot aelfmaer and the community at st. augustine's, and the sheriff aethelwine and sired the old and godwine, wulfheah's son, and aelfsige cild and eadmaer of burham and godwine, wulfstan's son, and carl, the king's cniht. and when the maiden was brought from brightling aelfgar, sired's son, and frerth, the priest of forlstone, and the priests leofwine and wulfsige from dover, and edred, eadhelm's son, and leofwine, waerhelm's son, and cenwold rust and leofwine, son of godwine of horton, and leofwine the red and godwine, eadgifu's son, and leofsunu his brother acted as security for all this. and whichever of them lives the longer shall succeed to all the property both in land and everything else which i have given them. every trustworthy man in kent and sussex, whether thegn or commoner, is cognizant of these terms. there are three of these documents; one is at christchurch, another at st. augustine's, and brihtric himself has the third." 	nuns and monks lived in segregated nunneries and monasteries on church land and grew their own food. the local bishop usually was also an abbot of a monastery. the priests and nuns wore long robes with loose belts and did not carry weapons. their life was ordered by the ringing of the bell to start certain activities, such as prayer; meals; meetings; work in the fields, gardens, or workshops; and copying and illuminating books. they chanted to pay homage and to communicate with god or his saints. they taught justice, piety, chastity, peace, and charity; and cared for the sick. caring for the sick entailed mostly praying to god as it was thought that only god could cure. they bathed a few times a year. they got their drinking water from upstream of where they had located their latrines over running water. the large monasteries had libraries, dormitories, guesthouses, kitchens, butteries to store wine, bakehouses, breweries, dairies, granaries, barns, fishponds, orchards, vineyards, gardens, workshops, laundries, lavatories with long stone or marble washing troughs, and towels. slavery was diminished by the church by excommunication for the sale of a child over seven. the clergy taught that manumission of slaves was good for the soul of the dead, so it became frequent in wills. the clergy were to abstain from red meat and wine and were to be celibate. but there were periods of laxity. punishment was by the cane or scourge. 	the archbishop of canterbury began anointing new kings at the time of coronation to emphasize that the king was ruler by the grace of god. as god's minister, the king could only do right. from , the new king swore to protect the christian church, to prevent inequities to all subjects, and to render good justice, which became a standard oath. 	it was believed that there was a celestial hierarchy, with heavenly hosts in specific places. the heavenly bodies revolved in circles around the earthly world on crystal spheres of their own, which were serene, harmonious, and eternal. this contrasted with the change, death, and decay that occurred in the earthly world. also in this world, aristotle's four elements of earth, air, fire, and water sought their natural places, e.g. bubbles of air rising through water. the planets were called wanderers because their motion did not fit the circular scheme. 	god intervened in daily life, especially if worshipped. saints such as bede and hilda performed miracles, especially ones of curing. their spirits could be contacted through their relics, which rested at the altars of churches. when someone was said to have the devil in him, people took it quite literally. a real jack frost nipped noses and fingers and made the ground too hard to work. little people, elves, trolls, and fairies inhabited the fears and imaginings of people. the forest was the mysterious home of spirits. people prayed to god to help them in their troubles and from the work of the devil. since natural causes of events were unknown, people attributed events to wills like their own. illness was thought to be caused by demons. people hung charms around their neck for cure and treatments of magic and herbs were given. some had hallucinogenic effects, which were probably useful for pain. for instance, the remedy for "mental vacancy and folly" was a drink of "fennel, agrimony, cockle, and marche". blood- letting by leeches and cautery were used for most maladies, which were thought to be caused by imbalance of the four bodily humors: sanguine, phlegmatic, choleric, and melancholic. these four humors reflected the four basic elements air, water, fire, and earth. blood was hot and moist like air; phlegm was cold and moist like water; choler or yellow bile was hot and dry like fire; and melancholy or black bile was cold and dry like earth. bede had explained that when blood predominates, it makes people joyful, glad, sociable, laughing, and talking a great deal. phlegm renders them slow, sleepy, and forgetful. red cholic makes them thin, though eating much, swift, bold, wrathful, and agile. black cholic makes them serious of settled disposition, even sad. to relieve brain pressure and/or maybe to exorcise evil spirits, holes were made in skulls by a drill with a metal tip that was caused to turn back and forth by a strap wrapped around a wooden handle. a king's daughter edith inspired a cult of holy wells, whose waters were thought to alleviate eye conditions. warmth and rest were also used for illness. agrimony boiled in milk was thought to relieve impotence in men. 	it was known that the liver casted out impurities in the blood. the stages of fetal growth were known. the soul was not thought to enter a fetus until after the third month, so presumably abortions within three months were allowable. 	the days of the week were sun day, moon day, tiw's day (viking god of war), woden's day (viking god of victory, master magician, calmer of storms, and raiser of the dead), thor's day (viking god of thunder), frig's day (viking goddess of fertility and growing things), and saturn's day (roman god). special days of the year were celebrated: christmas, the birthday of jesus christ; the twelve days of yuletide (a viking tradition) when candles were lit and houses decorated with evergreen and there were festivities around the burning of the biggest log available; plough monday for resumption of work after yuletide; february th with a feast celebrating saint valentinus, a roman bishop martyr who had married young lovers in secret when marriage was forbidden to encourage men to fight in war; new year's day on march th when seed was sown and people banged on drums and blew horns to banish spirits who destroy crops with disease; easter, the day of the resurrection of jesus christ; whitsunday, celebrating the descent of the holy spirit on the apostles of jesus and named for the white worn by baptismal candidates; may day when flowers and greenery was gathered from the woods to decorate houses and churches, morris dancers leapt through their villages with bells, hobby horses, and waving scarves, and people danced around a may pole holding colorful ribbons tied at the top so they became entwined around the pole; lammas on august st, when the first bread baked from the wheat harvest was consecrated; harvest home when the last harvest load was brought home while an effigy of a goddess was carried with reapers singing and piping behind, and october st, the eve of the christian designated all hallow day, which then became known as all hallow even, or halloween. people dressed as demons, hobgoblins, and witches to keep spirits away from possessing them. trick or treating began with christian beggars asking for "soul cake" biscuits in return for praying for dead relatives. ticktacktoe and backgammon were played. there were riddles such as: i am a strange creature, for i satisfy women ... i grow very tall, erect in a bed. i'm hairy underneath. from time to time a beautiful girl, the brave daughter of some fellow dares to hold me grips my reddish skin, robs me of my head and puts me in the pantry. at once that girl with plaited hair who has confined me remembers our meeting. her eye moistens. what am i? an onion. a man came walking where he knew she stood in a corner, stepped forwards; the bold fellow plucked up his own skirt by hand, stuck something stiff beneath her belt as she stood, worked his will. they both wiggled. the man hurried; his trusty helper plied a handy task, but tired at length, less strong than she, weary of the work. thick beneath her belt swelled the thing good men praise with their hearts and purses. what am i? a milk churn. 	the languages of invaders had produced a hybrid language that was roughly understood throughout the country. the existence of europe, africa, asia, and india were known. jerusalem was thought to be at the center of the world. there was an annual tax of a penny on every hearth, peter's pence, to be collected and sent to the pope in rome. ecclesiastical benefices were to pay church- scot, a payment in lieu of first fruits of the land, to the pope. - the law - 	the king and witan deliberated on the making of new laws, both secular and spiritual, at the regularly held witanagemot. there was a standard legal requirement of holding every man accountable, though expressed in different ways, such as the following three: 	every freeman who does not hold land must find a lord to answer for him. the act of homage was symbolized by holding his hands together between those of his lord. every lord shall be personally responsible as surety for the men of his household. [this included female lords.] (king athelstan) 	"and every man shall see that he has a surety, and this surety shall bring and keep him to [the performance of] every lawful duty. . and if anyone does wrong and escapes, his surety shall incur what the other should have incurred. . if the case be that of a thief and his surety can lay hold of him within twelve months, he shall deliver him up to justice, and what he has paid shall be returned to him." (king edgar) 	every freeman who holds land, except lords with considerable landed property, must be in a local tithing, usually ten to twelve men, in which they serve as personal sureties for each other's peaceful behavior. if one of the ten landholders in a tithing is accused of an offense, the others have to produce him in court or pay a fine plus pay the injured party for the offense, unless they could prove that they had no complicity in it. if the man is found guilty but can not pay, his tithing must pay his fine. the chief officer is the "tithing man" or "capital pledge". there were probably ten tithings in a hundred. (king edward the confessor). 	everyone was to take an oath not to steal, which one's surety would compel one to keep. 	no one may receive another lord's man without the permission of this lord and only if the man is blameless towards every hand. the penalty is the bot for disobedience. no lord was to dismiss any of his men who had been accused, until he had made compensation and done right. 	"no woman or maiden shall be forced to marry a man she dislikes or given for money." 	"violence to a widow or maiden is punishable by payment of one's wergeld." 	no man may have more wives than one. 	no man may marry among his own kin within six degrees of relationship or with the widow of a man as nearly related to him as that, or with a near relative of his first wife's, or his god- mother, or a divorced woman. incest is punishable by payment of one's wergeld or a fine or forfeiture of all his possessions. 	grounds for divorce were mutual consent or adultery or desertion. adultery was prohibited for men as well as for women. the penalty was payment of a bot or denial of burial in consecrated ground. a law of canute provided that if a wife was guilty of adultery, she forfeited all her property to her husband and her nose and ears, but this law did not survive him. 	laymen may marry a second time, and a young widow may again take a husband, but they will not receive a blessing and must do penance for their incontinence. 	prostitutes were to be driven out of the land or destroyed in the land, unless they cease from their wickedness and make amends to the utmost of their ability. 	neither husband nor wife could sell family property without the other's consent. 	if there was a marriage agreement, it determined the wife's "dower", which would be hers upon his death. otherwise, if a man who held his land in socage [owned it freely and not subject to a larger landholder] died before his wife, she got half this property. if there were minor children, she received all this property. 	inheritance of land to adult children was by the custom of the land held. in some places, the custom was for the oldest son to take it and in other places, the custom was for the youngest son to take it. usually, the sons each took an equal portion by partition, but the eldest son had the right to buy out the others as to the chief messuage [manor; dwelling and supporting land and buildings] as long as he compensated them with property of equal value. if there were no legitimate sons, then each daughter took an equal share when she married. 	in london, one-third of the personal property of a decedent went to his wife, one-third went to his children in equal shares, and one-third he could bequeath as he wished. 	"if a man dies intestate [without a will], his lord shall have heriot [horses, weapons, shields, and helmets] of his property according to the deceased's rank and [the rest of] the property shall be divided among his wife, children, and near kinsmen." 	a man could justifiably kill an adulterer in the act with the man's wife, daughter, sister, or mother. in kent, a lord could fine any bondswoman of his who had become pregnant without his permission [childwyte]. 	a man could kill in defense of his own life, the life of his kinsmen, his lord, or a man whose lord he was. the offender was "caught red-handed" if the blood of his victim was still on him. self-help was available for hamsocne [breaking into a man's house to assault him]. 	murder is punished by death as follows: "if any man break the king's peace given by hand or seal, so that he slay the man to whom the peace was given, both his life and lands shall be in the king's power if he be taken, and if he cannot be taken he shall be held an outlaw by all, and if anyone shall be able to slay him he shall have his spoils by law." the king's peace usually extended to important designated individuals, churches, assemblies, those traveling to courts or assemblies, and particular times and places. often a king would extend his peace to fugitives from violent feuds if they asked the king, earls, and bishops for time to pay compensation for their misdeeds. from this came the practice of giving a portion of the "profits of justice" to such men who tried the fugitive. the king's peace came to be extended to those most vulnerable to violence: foreigners, strangers, and kinless persons. 	"if anyone by force break or enter any man's court or house to slay or wound or assault a man, he shall pay s. to the king as fine." 	"if anyone slay a man within his court or his house, himself and all his substance are at the king's will, save the dower of his wife if he have endowed her." 	if a person fights and wounds anyone, he is liable for his wer. if he fells a man to death, he is then an outlaw and is to be seized by raising the hue and cry. and if anyone kills him for resisting god's law or the king's, there will be no compensation for his death. 	a man could kill a thief over twelve years in the act of carrying off his property over d., e.g. the thief hand-habbende [a thief found with the stolen goods in his hand] or the thief back-berend [a thief found carrying stolen goods on his back]. 	cattle theft could be dealt with only by speedy pursuit. a person who had involuntarily lost possession of cattle is to at once raise the hue and cry. he was to inform the hundredman, who then called the tithingmen. all these neighbors had to then follow the trail of the cow to its taker, or pay d. to the hundred for the first offense; and d. for the second offense, half to the hundred and half to the lord; and half a pound [ s.] for the third offense; and forfeiture of all his property and declared outlaw for the fourth offense. if the hundred pursued a track into another hundred, notice was to be given to that hundredman. if he did not go with them, he had to pay s. to the king. 	if a thief was brought into prison, he was to be released after days if he paid his fine of s. his kindred could become his sureties, to pay according to his wer if he stole again. if a thief forfeited his freedom and gave himself up, but his kindred forsook him, and he does not know of anyone who will make bot for him; let him then do theow-work, and let the wer abate for the kindred. 	measures and weights of goods for sale shall be correct. 	every man shall have a warrantor to his market transactions and no one shall buy and sell except in a market town; but he shall have the witness of the portreeve or of other men of credit, who can be trusted. 	moneyers accused of minting money outside a designated market were to go to the ordeal of the hot iron with the hand that was accused of doing the fraud. if he was found guilty, his hand that did the offense was to be struck off and be set up on the money- smithy. 	no marketing, business, or hunting may be done on sundays. 	no one may bind a freeman, shave his head in derision, or shave off his beard. shaving was a sign of enslavement, which could be incurred by not paying one's fines for offenses committed. 	no clergy may gamble or participate in games of chance. 	the laws for london were: " . the gates called aldersgate and cripplegate were in charge of guards. . if a small ship came to billingsgate, one halfpenny was paid as toll; if a larger ship with sails, one penny was paid. ) if a hulk or merchantman arrives and lies there, four pence is paid as toll. ) from a ship with a cargo of planks, one plank is given as toll. ) on three days of the week toll for cloth [is paid] on sunday and tuesday and thursday. ) a merchant who came to the bridge with a boat containing fish paid one halfpenny as toll, and for a larger ship one penny." - ) foreigners with wine or blubber fish or other goods and their tolls. (foreigners were allowed to buy wool, melted sheep fat [tallow], and three live pigs for their ships.) " . if the town reeve or the village reeve or any other official accuses anyone of having withheld toll, and the man replies that he has kept back no toll which it was his legal duty to pay, he shall swear to this with six others and shall be quit of the charge. ) if he declares that he has paid toll, he shall produce the man to whom he paid it, and shall be quit of the charge. ) if, however, he cannot produce the man to whom he paid it, he shall pay the actual toll and as much again and five pounds to the king. ) if he vouches the taxgatherer to warranty [asserting] that he paid toll to him, and the latter denies it, he shall clear himself by the ordeal and by no other means of proof. . and we [the king and his counselors] have decreed that a man who, within the town, makes forcible entry into another man's house without permission and commits a breach of the peace of the worst kind and he who assaults an innocent person on the king's highway, if he is slain, shall lie in an unhonored grave. ) if, before demanding justice, he has recourse to violence, but does not lose his life thereby, he shall pay five pounds for breach of the king's peace. ) if he values the goodwill of the town itself, he shall pay us thirty shillings as compensation, if the king will grant us this concession." . no base coin or coin defective in quality or weight, foreign or english, may be used by a foreigner or an englishman. (in , a person found guilty of illicit coining was punished by loss of a hand.) - judicial procedure - 	there were courts for different geographical communities. the arrangement of the whole kingdom into shires was completed by after being united under king edgar. 	a shire was a larger area of land, headed by an earl. a shire reeve or "sheriff" represented the royal interests in the shires and in the shire courts. this officer came to be selected by the king and earl of the shire to be a judicial and financial deputy of the earl and to execute the law. the office of sheriff, which was not hereditary, was also responsible for the administration of royal lands and royal accounts. the sheriff summoned the freemen holding land in the shire, four men selected by each community or township, and all public officers to meet twice a year at their "shiremote". actually only the great lords - the bishops, earls, and thegns - attended. the shire court was primarily concerned with issues of the larger landholders. here the freemen interpreted the customary law of the locality. the earl declared the secular law and the bishop declared the spiritual law. they also declared the sentence of the judges. the earl usually took a third of the profits, such as fines and forfeits, of the shire court, and the bishop took a share. in time, the earls each came to supervise several shires and the sheriff became head of the shire and assumed the earl's duties there, such as heading the county fyrd. the shire court also heard cases which had been refused justice at the hundredmote and cases of keeping the peace of the shire. 	the hundred was a division of the shire, having come to refer to a geographical area rather than a number of households. the monthly hundredmote could be attended by any freeman holding land (or a lord's steward), but was usually attended only by reeve, thegns, parish priest, and four representatives selected by each agrarian community or village - usually villeins. here transfers of land were witnessed. a reeve, sometimes the sheriff, presided over local criminal and peace and order issues ["leet jurisdiction", which derived from sac and soc jurisdiction] and civil cases at the hundred court. all residents were expected to attend the leet court. the sheriff usually held each hundred court in turn. the suitors to these courts were the same as those of the shire courts. they were the judges who declared the law and ordered the form of proof, such as compurgatory oath and ordeal. they were customarily thegns, often twelve in number. they, as well as the king and the earl, received part of the profits of justice. summary procedure was followed when a criminal was caught in the act or seized after a hue and cry. every freeman over age twelve had to be in a hundred and had to follow the hue and cry. 	"no one shall make distraint [seizure of personal property out of the possession of an alleged wrongdoer into the custody of the party injured, to procure a satisfaction for a wrong committed] of property until he has appealed for justice in the hundred court and shire court". 	in , king ethelred in a law code ordered the sheriff and twelve leading magnates of each shire to swear to accuse no innocent man, nor conceal any guilty one. this was the germ of the later assize, and later still the jury. 	the integrity of the judicial system was protected by certain penalties: for swearing a false oath, bot as determined by a cleric who has heard his confession, or, if he has not confessed, denial of burial in consecrated ground. also a perjurer lost his oath-worthiness. swearing a false oath or perjury was also punishable by loss of one's hand or half one's wergeld. a lord denying justice, as by upholding an evildoing thegn of his, had to pay s. to the king for his disobedience. furthermore, if a lord protected a theow of his who had stolen, he had to forfeit the theow and pay his wer, for the first offense, and he was liable for all he property, for subsequent offenses. there was a bot for anyone harboring a convicted offender. if anyone failed to attend the gemot thrice after being summoned, he was to pay the king a fine for his disobedience. if he did not pay this fine or do right, the chief men of the burh were to ride to him, and take all his property to put into surety. if he did not know of a person who would be his surety, he was to be imprisoned. failing that, he was to be killed. but if he escaped, anyone who harbored him, knowing him to be a fugitive, would be liable pay his wer. anyone who avenged a thief without wounding anyone, had to pay the king s. as wite for the assault. 	"and if anyone is so rich or belongs to so powerful a kindred, that he cannot be restrained from crime or from protecting and harboring criminals, he shall be led out of his native district with his wife and children, and all his goods, to any part of the kingdom which the king chooses, be he noble or commoner, whoever he may be - with the provision that he shall never return to his native district. and henceforth, let him never be encountered by anyone in that district; otherwise he shall be treated as a thief caught in the act." 	this lawsuit between a son and his mother over land was heard at a shire meeting: "here it is declared in this document that a shire meeting sat at aylton in king cnut's time. there were present bishop aethelstan and earl ranig and edwin, the earl's son, and leofwine, wulfsige's son, and thurkil the white; and tofi the proud came there on the king's business, and bryning the sheriff was present, and aethelweard of frome and leofwine of frome and godric of stoke and all the thegns of herefordshire. then edwin, enneawnes son, came traveling to the meeting and sued his own mother for a certain piece of land, namely wellington and cradley. then the bishop asked whose business it was to answer for his mother, and thurkil the white replied that it was his business to do so, if he knew the claim. as he did not know the claim, three thegns were chosen from the meeting [to ride] to the place where she was, namely at fawley, and these were leofwine of frome and aethelsige the red and winsige the seaman, and when they came to her they asked her what claim she had to the lands for which her son was suing her. then she said that she had no land that in any way belonged to him, and was strongly incensed against her son, and summoned to her kinswoman, leofflaed, thurkil's wife, and in front of them said to her as follows: 'here sits leofflaed, my kinswoman, to whom, after my death, i grant my land and my gold, my clothing and my raiment and all that i possess.' and then she said to the thegns: 'act like thegns, and duly announce my message to the meeting before all the worthy men, and tell them to whom i have granted my land and all my property, and not a thing to my own son, and ask them to be witnesses of this.' and they did so; they rode to the meeting and informed all the worthy men of the charge that she had laid upon them. then thurkil the white stood up in the meeting and asked all the thegns to give his wife the lands unreservedly which her kinswoman had granted her, and they did so. then thurkil rode to st. aethelbert's minister, with the consent and cognizance of the whole assembly, and had it recorded in a gospel book." 	courts controlled by lords of large private estates had various kinds of jurisdiction recognized by the king: sac and soke [possession of legal powers of execution and profits of justice held by a noble or institution over inhabitants and tenants of the estate, exercised through a private court], toll [right to collect a payment on the sale of cattle and property] and team [right to hold a court to determine the honesty of a man accused of illegal possession of cattle], infangenetheof [the authority to judge and to hang and take the chattels of a thief caught on the property], and utfangenetheof [the authority to judge and to hand and take the chattels of a thief dwelling out of his liberty, and committing theft without the same, if he were caught within the lord's property]. some lords were even given jurisdiction over breach of the royal peace, ambush and treacherous manslaughter, harboring of outlaws, forced entry into a residence, and failure to answer a military summons. often this court's jurisdiction overlapped that of the hundred court and sometimes a whole hundred had passed under the jurisdiction of an abbot, bishop, or earl. 	a lord and his noble lady, or his steward, presided at this court. the law was administered here on the same principles as at the hundred court. judges of the leet of the court of a large private estate were chosen from the constables and four representatives selected from each community, village, or town. 	the vill [similar to village] was the smallest community for judicial purposes. there were several vills in a hundred. 	before a dispute went to the hundred court, it might be taken care of by the head tithing man, e.g. cases between vills, between neighbors, and some compensations and settlements, namely concerning pastures, meadows, harvests, and contests between neighbors. 	in london, the hustings court met weekly and decided such issues as wills and bequests and commerce matters. the folkmote of all citizens met three times a year. each ward had a leet court [for minor criminal matters]. 	the king and his witan decided the complaints and issues of the nobility and those cases which had not received justice in the hundred or shire court. the witan had a criminal jurisdiction and could imprison or outlaw a person. the witan could even compel the king to return any land he might have unjustly taken. specially punishable by the king was "oferhyrnesse": contempt of the king's law. it covered refusal of justice, neglect of summons to gemot or pursuit of thieves, disobedience to the king's officers, sounding the king's coin, accepting another man's dependent without his leave, buying outside markets, and refusing to pay peter's pence. 	the forests were peculiarly subject to the absolute will of the king. they were outside the common law. their unique customs and laws protected the peace of the animals rather than the king's subjects. only special officials on special commissions heard their cases. 	the form of oaths for compurgation were specified for theft of cattle, unsoundness of property bought, and money owed for a sale. the defendant denied the accusation by sweating that "by the lord, i am guiltless, both in deed and counsel, and of the charge of which ... accuses me." a compurgator swore that "by the lord, the oath is clean and unperjured which ... has sworn.". a witness swore that "in the name of almighty god, as i here for ... in true witness stand, unbidden and unbought, so i with my eyes oversaw, and with my ears overheard, that which i with him say." 	if a theow man was guilty at the ordeal, he was not only to give compensation, but was to be scourged thrice, or a second geld be given; and be the wite of half value for theows. - - - chapter - - - - the times: - - 	william came from normandy to conquer england. he claimed that the former king, edward, the confessor, had promised the throne to him when they were growing up together in normandy, if edward became king of england and had no children. the conquerer's men and horses came in boats powered by oars and sails. the conquest did not take long because of the superiority of his military expertise to that of the english. he organized his army into three groups: archers with bows and arrows, horsemen with swords and stirrups, and footmen with hand weapons. each group played a specific role in a strategy planned in advance. the english army was only composed of footmen with hand weapons such as spears and shields. they fought in a line holding up their shields to overlap each other and form a shieldwall. the defeat of the english was thought to have been presaged by a comet. 	at westminster, he made an oath to defend god's holy churches and their rulers, to rule the whole people subject to him with righteousness and royal providence, to enact and hold fast right law, and to utterly forbid rapine and unrighteous judgments. this was in keeping with the traditional oath of a new king. 	declaring the english who fought against him to be traitors, the conquerer declared their land confiscated. but he allowed those who were willing to acknowledge him to redeem their land by a payment of money. as william conquered the land of the realm, he parceled it out among the barons who fought with him so that each baron was given the holdings of an anglo-saxon predecessor, scattered though they were. the barons again made oaths of personal loyalty to him [fealty]. they agreed to hold the land as his vassals with future military services to him and receipt of his protection. they gave him homage by placing their hands within his and saying "i become your man for the tenement i hold of you, and i will bear you faith in life and member [limb] and earthly honor against all men". they held their land "of their lord", the king, by knight's service. the king had "enfeoffed" them [given them a fief: a source of income] with land. the theory that by right all land was the king's and that land was held by others only at his gift and in return for specified service was new to english thought. the original duration of a knight's fee until about was for his life; thereafter it was heritable. the word "knight" came to replace the word "thegn" as a person who received his position and land by fighting for the king. the exact obligation of knight's service was to furnish a fully armed horseman to serve at his own expense for forty days in the year. this service was not limited to defense of the country, but included fighting abroad. the baron led his own knights under his banner. the foot soldiers were from the fyrd or were mercenaries. every free man was sworn to join in the defense of the king, his lands and his honor, within england and without. 	the saxon governing class was destroyed. the independent power of earls, who had been drawn from three great family houses, was curtailed. most died or fled the country. some men were allowed to redeem their land by money payment if they showed loyalty to the conquerer. well-born women crowded into nunneries to escape norman violence. the people were deprived of their most popular leaders, who were excluded from all positions of trust and profit, especially all the clergy. the earldoms became fiefs instead of magistracies. 	the conquerer was a stern and fierce man and ruled as an autocrat by terror. whenever the people revolted or resisted his mandates, he seized their lands or destroyed the crops and laid waste the countryside and so that they starved to death. this example pacified others. his rule was strong, resolute, wise, and wary. he was not arbitrary or oppressive. the conquerer had a strict system of policing the nation. instead of the anglo-saxon self-government throughout the districts and hundreds of resident authorities in local courts, he aimed at substituting for it the absolute rule of the barons under military rule so favorable to the centralizing power of the crown. he used secret police and spies and the terrorism this system involved. this especially curbed the minor barons and preserved the public peace. 	the english people, who outnumbered the normans by to , were disarmed. curfew bells were rung at : pm when everyone had to remain in their own dwellings on pain of death and all fires and candles were to be put out. this prevented any nightly gatherings, assassinations, or seditions. order was brought to the kingdom so that no man dare kill another, no matter how great the injury he had received. the conquerer extended the king's peace on the highways, i.e. roads on high ground, to include the whole nation. any individual of any rank could travel from end to end of the land unharmed. before, prudent travelers would travel only in groups of twenty. 	the barons subjugated the english who were on their newly acquired land. there began a hierarchy of seisin [rightful occupation] of land so that there could be no land without its lord. also, every lord had a superior lord with the king as the overlord or supreme landlord. one piece of land may be held by several tenures. for instance, a, holding by barons' service of the king, may enfeoff b, a church, to hold of him on the terms of praying for the souls of his ancestors, and b may enfeoff a freeman c to hold of the church by giving it a certain percentage of his crops every year. there were about barons who held land directly of the king. other fighting men were the knights, who were tenants or subtenants of a baron. knighthood began as a reward for valor on the field of battle by the king or a noble. the value of a knight's fee was s. [ pounds] per year. altogether there were about fighting men holding land. 	the essence of norman feudalism was that the land remained under the lord, whatever the vassal might do. the lord had the duty to defend the vassals on his land. the vassal owed military service to the lord and also the service of attending the courts of the hundred and the county [formerly "shire"], which were courts of the king, administering old customary law. they were the king's courts on the principle that a crime anywhere was a breach of the king's peace. the king's peace that had covered his residence and household had extended to places where he might travel, such as highways, rivers, bridges, churches, monasteries, markets, and towns, and then encompassed every place, replacing the general public peace. infraction of the king's peace incurred fines to the king. 	this feudal bond based on occupancy of land rather than on personal ties was uniform throughout the realm. no longer could a man choose his lord and transfer his land with him to a new lord. he held his land at the will of his lord, to be terminated anytime the lord decided to do so. a tenant could not alienate his land without permission of his lord. in later eras, tenancies would be held for the life of the tenant, and even later, for his life and those of his heirs. 	this uniformity of land organization plus the new requirement that every freeman take an oath of loyalty directly to the king to assist him in preserving his lands and honor and defending him against his enemies, which oath would supersede any oath to any other man, gave the nation a new unity. the king could call men directly to the fyrd, summon them to his court, and tax them without intervention of their lords. and the people learned to look to the king for protection from abuse by their lords. 	english villani, bordarii, cottarii, and servi on the land of the barons were subjugated into a condition of "villeinage" servitude and became "tied to the land" so that they could not leave the land without their lord's permission, except to go on a pilgrimage. the villeins formed a new bottom class as the population's percentage of slaves declined dramatically. they held their land of their lord, the baron. to guard against uprisings of the conquered people, the barons used villein labor to build about a hundred great stone castles, with moats and walls with towers around them, at easily defensible positions such as hilltops all over the nation. 	a castle could be built only with permission of the king. a typical castle had a stone building of about four floors [a keep] on a small, steep hill. later it also had an open area surrounded by a stone curtain-wall with towers at the corners. around the outside of the wall were ditches and banks and perhaps a moat. one traveled over these via a drawbridge let down at the gatehouse of the enclosing wall. on either side of the gatehouse were chambers for the guards. arrows could be shot through slits in the enclosing walls. inside the enclosed area might be stables, a granary, barracks for the soldiers, and workshops. the only winter feed was hay, for which the horses, breeding animals, milkcow, and workoxen had a priority over other animals. the bulk of the cattle were usually slaughtered and salted. 	the castle building typically was entered by an outer wood staircase to the guard room on the second floor. the first [ground] floor had a well and was used as a storehouse and/or dungeons for prisoners. the second floor had a two-storied great hall, with small rooms and aisles around it within the thick walls. there was also a chapel area on the second floor. there were small areas of the third floor which could be used for sleeping. the floors were wood and were reached by a spiral stone staircase in one corner of the building. sometimes there was a reservoir of water on an upper level with pipes carrying the water to floors below. each floor had a fireplace with a slanted flue going through the wall to the outside. there were latrines in the corner walls with a pit or shaft down the exterior of the wall, sometimes to the moat. furs and wool clothes were hung on the walls there in the summer to deter the moths. the first floor had only arrow slits in the walls, but the higher floors had small windows. 	some curtain-wall castles did not have a central building. in these, the hall was built along the inside of the walls, as were other continuous buildings. the kitchens and chapels were in the towers. lodgings were in buildings along the curtain-walls, or on several floors of the towers. 	the great hall was the main room of the castle. the hall was used for meals and meetings at which the lord received homages, recovered fees, and held the view of frankpledge [free pledge in latin], in which freemen agreed to be sureties for each other. at the main table, the lord and his lady sat on benches with backs or chairs. the table was covered first with a wool cloth that reached to the floor, and then by a smaller white linen cloth. everyone else sat on benches at trestle tables, which consisted of planks on trestles and could be dismantled, e.g. at night. over the main door were the family arms. on the walls were swords ready for instant use. on the upper parts of the walls could be fox skins and perhaps a polecat skin, and keepers' and huntsmen's poles. there were often hawk perches overhead. at the midday dinner, courses were ceremonially brought in to music, and ritual bows were made to the lord. the food at the head table was often tasted first by a servant as a precaution against poison. hounds, spaniels, and terriers lay near the hearth and cats, often with litters, nestled nearby. they might share in dinner, but the lord may keep a short stick near him to defend morsels he meant for himself. hunting, dove cotes, and carp pools provided fresh meat. fish was compulsory eating on fridays, on fast days, and during lent. cooking was done outside on an open fire, roasting on spits and boiling in pots. some spits were mechanized with a cogged wheel and a weight at the end of a string. other spits were turned by a long handle, or a small boy shielded from the heat by a wet blanket, or by dogs on a treadmill. underneath the spit was a dripping pan to hold the falling juices and fat. mutton fat was used for candles. bread, pies, and pastry dishes were baked in an oven: a hole in a fireproof stone wall fitted with an iron door, in which wood was first burnt to heat the oven walls. it could also be used for drying fruit or melting tallow. fruits were also preserved in honey. salt was stored in a niche in the wall near the hearth and put on the table in a salt cellar which became more elaborate over the years. salt was very valuable and gave rise to the praise of a man as the salt of the earth. costly imported spices such as cinnamon, cloves, nutmeg, ginger, pepper, and a small quantity of sugar were kept in chests. pepper was always on the table to disguise the taste of tainted meat. spices were tried for medicinal use. drinks included wine, ale, cider from apples, perry from pears, and mead. people carried and used their own knives. there were no forks. spoons were of silver or wood. people also ate with their fingers and washed their hands before and after meals. it was impolite to dig into the salt bowl with a knife not previously wiped on bread or napkin, which was linen. it was unmannerly to wipe one's knife or one's greasy fingers on the tablecloth or, to use the tablecloth to blow one's nose. feasts were stately occasions with costly tables and splendid apparel. there were practical jokes, innocent frolics, and witty verbal debating with repartee. they played chess, checkers, and various games with cards and dice. most people could sing and some could play the lute. 	lighting of the hall at night was by oil lamps or candles on stands or on wall fixtures. for outside activities, a lantern [a candle shielded by a metal cage with panels of finely shaved horn: lant horn] was used. the residence of the lord's family and guests was at a screened off area at the extreme end of the hall or on a higher floor. chests stored garments and jewels. iron keys and locks were used for chests and doors. the great bed had a wooden frame and springs made of interlaced rope or strips of leather. it was covered with a feather mattress, sheets, quilts, fur covers, and pillows. drapery around the bed kept out cold drafts and provided privacy. there was a water bowl for washing in the morning. a chamber pot was kept under the bed for nighttime use. hay was used as toilet paper. the lord's personal servants slept nearby on benches or trundle beds. most of the gentlemen servants slept communally in a "knight's chamber". the floor of the hall was strewn with straw, on which common folk could sleep at night. there were stools on which to sit. cup boards (boards on which to store cups) and chests stored spices and plate. one-piece iron shears were available to cut cloth. handheld spindles were used for weaving; one hand held the spindle [a small stick weighted at one end] while the other hand alternately formed the thread and wound it around the spindle. on the roofs there were rampart walks for sentry patrols and parapets from which to shoot arrows or throw things at besiegers. each tenant of the demesne of the king where he had a castle had to perform a certain amount of castle guard duty for its continuing defense. these knights performing castle-guard duty slept at their posts. bathing was done in a wooden tub located in the garden in the summer and indoors near the fire in winter. the great bed and tub for bathing were taken on trips with the lord. the entire household was of men, except for the lord's lady with a few lady companions. the ladies rode pillion [on a cushion behind the saddle] or in litters suspended between two horses. 	markets grew up outside castle walls. any trade on a lord's land was subject to "passage", a payment on goods passing through, "stallage", a payment for setting up a stall or booth in a market, and "pontage", a payment for taking goods across a bridge. 	the norman man was clean shaven on his face and around his ears and at the nape of the neck. his hair was short. he wore a long- sleeved under-tunic of linen or wool that reached to his ankles. over this the norman noble wore a tunic without sleeves, open at the sides, and fastened with a belt. over one shoulder was his cloak, which was fastened on the opposite shoulder by being drawn through a ring brooch and knotted. he wore tight thick cloth stockings to protect him from the mud and leather shoes. common men wore durable, but drab, wool tunics to the knee so as not to impede them in their work. they could roll up their stockings when working in the fields. a lady wore a high-necked, long- sleeved linen or wool tunic fitted at the waist and laced at the side, but full in the skirt, which reached to her toes. she wore a jeweled belt, passed twice around her waist and knotted in front. her hair was often in two long braids, and her head and ears covered with a white round cloth held in place by a metal circlet like a small crown. its ends were wound around her neck. in winter, she wore over her tunic a cloak edged or lined with fur and fastened at the front with a cord. clothes of both men and ladies were brightly colored by dyes or embroidery. the norman knight wore an over-tunic of leather or heavy linen on which were sewn flat rings of iron and a conical iron helmet with nose cover. he wore a sword at his waist and a metal shield on his back, or he wore his sword and his accompanying retainers carried spear and shield. 	norman customs were adopted by the nation. as a whole, anglo-saxon men shaved their beards and whiskers from their faces, but they kept their custom of long hair flowing from their heads. but a few kept their whiskers and beards in protest of the normans. everyone had a permanent surname indicating parentage, place of birth, or residence, such as field, pitt, lane, bridge, ford, stone, burn, church, hill, brook, green. other names came from occupations such as shepherd, carter, parker, fowler, hunter, forester, smith. still other came from personal characteristics such as black, brown, and white, short, round, and long. some took their names from animals such as wolf, fox, lamb, bull, hogg, sparrow, crow, and swan. others were called after the men they served, such as king, bishop, abbot, prior, knight. a man's surname was passed on to his son. 	those few coerls whose land was not taken by a baron remained free and held their land "in socage" and became known as sokemen. they were not fighting men, and did not give homage, but might give fealty, i.e. fidelity. many free sokemen were caught up in the subjugation by baron landlords and were reduced almost to the condition of the unfree villein. the services they performed for their lords were often indistinguishable. they might also hold their land by villein tenure, although free as a person with the legal rights of a freeman. the freeman still had a place in court proceedings which the unfree villein did not. 	great stone cathedrals were built in fortified towns for the conquerer's norman bishops, who replaced the english bishops. most of the existing and new monasteries functioned as training grounds for scholars, bishops, and statesmen rather than as retreats from the world's problems to the security of religious observance. the number of monks grew as the best minds were recruited into the monasteries. 	the conquerer made the church subordinate to him. bishops were elected only subject to the king's consent. the bishops had to accept the status of barons. homage was exacted from them before they were consecrated, and fealty and an oath afterward. the conquerer imposed knight's service on bishoprics, abbeys, and monasteries, which was usually commuted to a monetary amount. bishops had to attend the king's court. bishops could not leave the realm without the king's consent. no royal tenant or royal servant could be excommunicated, nor his lands be placed under interdict, without the king's consent. interdict could demand, for instance, that the church be closed and the dead buried in unconsecrated ground. no church rules could be made without his agreement to their terms. no letters from the pope could be received without the king's permission. the archbishop of canterbury was still recognized as a primary advisor to the king. over the years, the selection for this office frequently became a source of contention among king, pope, and clergy. 	men continued to give land to the church for their souls, such as this grant which started the town of sandwich: "william, king of the english, to lanfranc the archbishop and hugoni de montfort and richard son of earl gilbert and haimo the sheriff and all the thegns of kent, french and english, greeting. know ye that the bishop of bayeux my brother for the love of god and for the salvation of my soul and his own, has given to st. trinity all houses with their appurtenances which he has at sandwich and that he has given what he has given by my license." many private owners of churches gave them to cathedrals or monastic communities, partly to ensure their long term survival, and partly because of church pressure. 	when the land was all divided out, the barons had about / of it and the church about / . most of the barons had been royal servants. the king retained about / , including forests for hunting, for himself and his family and household, on which he built many royal castles and hundreds of manor [large private estate headed by a lord] houses throughout the nation. he built the massive white tower in london. it was tall with four turrets on top, and commanded a view of the river and bridge, the city and the surrounding countryside. the only windows were slits from which arrows could be shot. on the fourth and top floor was the council chamber and the gallery of the chapel. on the third floor was the banqueting hall, the sword room, and the chapel. the king and his household slept in apartments on these upper floors. stairs went up to the gateway entrance on the second floor, which were hidden by a wall. the garrison's barracks were on the first floor (ground floor). any prisoners were kept in cells at a level below the first floor. the other castles were often built at the old fortification burhs of alfred. each had a constable in charge, who was a baron. barons and earls had castle-guard duty in the king's castles. the conquerer was constantly moving about the land among his and his barons' castles, where he met with his magnates and conducted public business, such as deciding disputes about holding of land. near his own castles and other of his property, he designated many areas as royal hunting forests. anyone who killed a deer in these forests was mutilated, for instance by blinding. people living within the boundaries of the designated forestland could no longer go into nearby woods to get meat or honey, dead wood for firing, or live wood for building. swineherds could no longer drive pigs into these woods to eat acorns they beat down from oak trees. making clearings and grazing livestock in the designated forestland were prohibited. most of the nation was either wooded or bog at this time. 	london was a walled town of one and two story houses made of mud, twigs, and straw, with thatched roofs. it included a bundle of communities, townships, parishes, and lordships. there were churches, a goods market, a fish market, quays on the river, and a bridge over the river. streets probably named by this time include bread street, milk street, honey lane, wood street, and ironmonger lane. fairs and games were held outside the town walls in a field called "smithfield". the great citizens had the land qualifications of knights and ranked as barons on the conquerer's council. the freemen were a small percentage of london's population. there was a butchers' guild, a pepperers' guild, a goldsmiths' guild, the guild of st. lazarus, which was probably a leper charity (of which there were many in the s and s), the pilgrims' guild, which helped people going on pilgrimages, and four bridge guilds, probably for keeping the wooden london bridge in repair. men told the time by sundials, some of which were portable and could be carried in one's pocket. london could defend itself, and a ringing of the bell of st. paul's church could shut every shop and fill the streets with armed horsemen and soldiers led by a soldier portreeve. across the thames from london on its south side was southwark, a small trading and fishing settlement. 	the conquerer did not interfere with landholding in london, but recognized its independence as a borough in this writ: "william the king greets william, bishop of london, and gosfrith the portreeve, and all the burgesses [citizens] of london friendly. know that i will that you be worthy of all the laws you were worthy of in the time of king edward. and i will that every child shall be his father's heir after his father's day. and i will not suffer any man to do you wrong. god preserve you." the norman word "mayor" replaced "portreeve". 	so london was not subjected to the norman feudal system. it had neither villeins nor slaves. whenever kings asserted authority over it, the citizens reacted until the king "granted" a charter reaffirming the freedoms of the city and its independence. 	under pressure from the ecclesiastical judges, the conquerer replaced the death penalty by that of the mutilation of blinding, chopping off hands, and castrating offenders. castration was the punishment for rape. but these mutilations usually led to a slow death by gangrene. 	the normans used the anglo-saxon concepts of jurisdictional powers. thus when the conquerer confirmed "customs" to the abbot of ely, these were understood to include the following: ) sac and soke - the right to hold a court of private jurisdiction and enjoy its profits, ) toll - a payment in towns, markets, and fairs for goods and chattel bought and sold, ) team - persons might be vouched to warranty in the court, the grant of which made a court capable of hearing suits arising from the transfer of land, ) infangenthef - right of trying and executing thieves on one's land, ) hamsocne [jurisdiction over breach of the right of security and privacy in a man�s house, e.g. by forcible entry],, ) grithbrice - violation of the grantees' special peace, for instance that of the sheriff, ) fightwite - fine for a general breach of the peace, ) fyrdwite - fine for failure to appear in the fyrd. 	every shire, now called "county", had at least one burh, or defensible town. kings had appointed a royal moneyer in each burh to mint silver coins such as pennies for local use. on one side was the king's head in profile and on the other side was the name of the moneyer. when a new coinage was issued, all moneyers had to go to london to get the new dies. the conquerer's head faced frontally on his dies, instead of the usual profile used by former kings. 	the conquerer held and presided over his council three times a year, as was the custom, at easter, christmas, and whitsuntide, which coincided with the great christian festivals. this was an advisory council and consisted of the conquerer's wife and sons, earls, barons, knights, officers of the king's household, archbishops, and bishops. it replaced the witan of wise men. it dealt with fundamental matters of law, state, war, and church. earldoms and knighthoods were conferred and homages to the king were witnessed. bishops were nominated. attendance at the council, like attendance at courts, was regarded as a burden rather than a privilege. the conquerer's will was the motive force which under lay all the council's action. when it was administering royal justice, it was called the royal court. 	the justiciar was the head of all legal matters and he or the conquerer's wife represented the king at the royal court in his absence from the realm. the chamberlain was a financial officer of the household; his work was rather that of auditor or accountant. the chancellor headed the chancery and the chapel. other household offices were steward, butler, constable, and marshall. the treasurer was responsible for the collection and distribution of revenue and was the keeper of the royal treasure at the palace at winchester. he was also an important member of the household and sat in the exchequer at westminster, where he received the accounts of the sheriffs. the exchequer was composed of the justiciar as head, the chancellor, the constable, two chamberlains, the marshall and other experienced councilors. the word "exchequer" came from the chequered cloth on the table used to calculate in roman numerals the amount due and the amount paid. the word "calculate" derives from the word "calculi", meaning pebbles. it was a kind of abacus. the exchequer received yearly from the sheriffs of the counties taxes, fines, treasure trove, goods from wrecks, deodands, and movable property of felons, of persons executed, of fugitives, and of outlaws due to the crown. the conqueror presided yearly over feasts involving several thousand guests at westminster hall, which was feet by feet with a high ceiling, the largest hall in england. 	the conquerer's reign was a time of tentative expedients and simple solutions. he administered by issuing writs with commands or prohibitions. these were read aloud by the sheriffs in the county courts and other locations. administration was by the personal servants of his royal household, such as the chancellor, chamberlain, constable, marshals, steward, and butler. the language of government changed to latin. the chancellor was from the clergy and supervised the writers and clerks, who were literate, and appended the great seal before witnesses to documents. he also headed the staff of the royal chapel. the chamberlain was a financial officer who audited and accounted. the constable was responsible for supplies for the knights of the royal household. he also supervised the care of horses, hounds, hawks, and huntsmen, houndsmen, and foresters. the marshals came from less important families than the constable and they preserved order in the king's hall and recorded expenditures of the household officers on tallies. the steward was a great baron whose duties were chiefly ceremonial, such as placing the dishes before the king at banquets. 	sheriffs became powerful figures as the primary agents for enforcing royal edicts. there was no longer supervision of them by earls nor influence on them by bishops. they were customarily prominent barons. they collected the royal taxes, executed royal justice, and presided over and controlled the hundred and county courts. they were responsible for remitting a certain sum annually. if a sheriff received more than necessary, he retained the difference as his lawful profit of office. if he received less than necessary, he had to make up the difference from his own pocket. before rendering this account, he paid the royal benefactions to religious houses, provided for the maintenance of stock on crown lands, paid for the costs of provisions supplied to the court, and paid for traveling expenses of the king and his visitors. the payments were initially paid in kind: e.g. grain, cattle, horses, hounds, and hawks. sheriffs also took part in the keeping of castles and often managed the estates of the king. most royal writs were addressed to the sheriff and county courts. they also led the county militia in time of war or rebellion. at times, a sheriff usurped royal rights, used royal estates for his own purposes, encroached on private land and rights, extorted money, and collected revenues only for his own pockets. over the centuries, there was much competition for the authority to select the sheriff, e.g. by the king, the county court, the barons, and the exchequer. there was also much pressure to limit his term to one year. over time, the powers of the sheriffs slowly declined. 	royal income came from customary dues, profits of coinage and of justice, and revenues from the king's own estates. for war, there was no change in the custom that a man with five hides of land was required to furnish one heavy armed horseman for forty days service in a year. the fyrd was retained. a threat of a viking invasion caused the conquerer to reinstate the danegeld tax at s. per hide, which was three times its old rate. (the price of an ox was still about d.) to impose this tax uniformly, he sent commissioners to conduct surveys by sworn verdicts of appointed groups of local men. a detailed survey of land holdings and the productive worth of each was made in . the english called it the "doomsday book" because there was no appeal from it. 	the survey revealed, for instance, that one estate had "on the home farm five plough teams: there are also villeins and cotters with teams among them. there is a mill worth s. a year and one fishery, a church and four acres of meadow, wood for pigs and two stone quarries, each worth s. a year, and two nests of hawks in the wood and slaves." this estate was deemed to be worth s. a year. 	laxton "had carucates of land [assessed] to the geld. [there is] land for ploughs. there walter, a man of [the lord] geoffrey alselin's has plough and villeins and bordars [a bordar had a cottage and a small amount land in return for supplying small provisions to his lord] having ploughs and serfs and female serf and acres of meadow. wood [land] for pannage [foraging by pigs] league in length and half a league in breadth. in king edward's time it was worth pounds; now [it is worth] pounds." 	ilbert de laci has now this land, where he has twelve ploughs in the demesne; and forty-eight villani, and twelve bordars with fifteen ploughs, and three churches and three priests, and three mills of ten shillings. wood pastures two miles long, and one broad. the whole manor five miles long and two broad. value in king edward's time sixteen pounds, the same now. 	that manor of the town of coventry which was individually held was that of the countess of coventry, who was the wife of the earl of mercia. "the countess held in coventry. there are hides. the arable land employs ploughs. in the demesne lands there are ploughs and bondmen. there are villeins and bordars with ploughs. the mill there pay[s] shillings. the woodlands are miles long and the same broad. in king edward's time and afterwards, it was worth pounds [ s.], now only pounds by weight. these lands of the countess godiva nicholas holds to farm of the king." 	the survey shows a few manors and monasteries owned a salthouse or saltpit in the local saltworks, from which they were entitled to obtain salt. 	in total there were about , villani [former coerls regarded as customary, irremovable cultivator tenants]; , bordarii; , cotarii and cotseti [held land by service of labor or rent paid in produce], and , servi [landless laborers]. there are no more theows. this survey resulted in the first national tax system of about s. per hide of land. 	the survey also provided the conquerer with a summary of customs of areas. for instance, in oxfordshire, "anyone breaking the king's peace given under his hand and seal to the extent of committing homicide shall be at the king's mercy in respect of his life and members. that is if he be captured. and if he cannot be captured, he shall be considered as an outlaw, and anyone who kills him shall have all his possessions. the king shall take the possessions of any stranger who has elected to live in oxford and who dies in possession of a house in that town, and without any kinfolk. the king shall be entitled to the body and the possessions of any man who kills another within his own court or house excepting always the dower of his wife, if he has a wife who has received dower. 	the courts of the king and barons became schools of chivalry wherein seven year old noble boys became pages or valets, wore a dagger and waited upon the ladies of the household. at age fourteen, they were advanced to squires and admitted into more familiar association with the knights and ladies of the court. they perfected their skills in dancing, riding, fencing, hawking, hunting, jousting, and engaged in team sports in which the goal was to put the other side to rout. they learned the knightly art of war. enemy fighters were to be taken and held for ransom rather than killed. those engaging in rebellion were to be pardoned and restored to some or all of their lands and titles. lords' sons could be mutually exchanged with an enemy's as security for peace. after achieving knighthood, a man usually selected a wife from the court at which he grew up. parents tried to send their daughters to a household superior in social status not only to learn manners, but to make a good marriage. a girl who did not marry was often sent to a nunnery; a dowry was necessary before her acceptance. 	the following incidents of land tenure began (but were not firmly established until the reign of henry ii). each tenant, whether baron or subtenant, was to pay an "aid" in money for ransom if his lord was captured in war, for the knighthood of his lord's eldest son, and for the marriage of his lord's eldest daughter. the aid was theoretically voluntary. land could be held by an heir only if he could fight. the eldest son began to succeed to the whole of the lands in all military tenures. younger sons of great houses became bishops. an heir of a tenant had to pay a heavy "relief" on succession to his estate. the relief replaced the heriot. if there was a delay in proving heirship or paying relief, the lord would hold the land and receive its income in the meantime, often a year. if an heir was still a minor or female, he or she passed into his lord's wardship, in which the lord had guardianship of the heir and possession of the estate, with all its profits. the mother was not made a minor's guardian. no longer was the estate protected by the minor's kin as his birthright. a female heir was expected to marry a man acceptable to the lord. the estate of an heiress and her land was generally sold to the highest bidder. if there were no heirs, the land escheated to the lord. if a tenant committed felony, his land escheated to his lord. the word "felony" came from the latin word meaning "to deceive" and referred to the feudal crime of betraying or committing treachery against one's lord. 	astrologers resided with the families of the barons. people went to fortune tellers' shops. there was horse racing, steeple races, and chess for recreation. girls had dolls; boys had toy soldiers, spinning tops, toy horses, ships, and wooden models. 	the state of medicine is indicated by this medical advice brought to the nation by william's son after treatment on the continent: "if thou would have health and vigor shun cares and avoid anger. be temperate in eating and in the use of wine. after a heavy meal rise and take the air sleep not with an overloaded stomach and above all thou must respond to nature when she calls." 	the conquerer allowed jewish traders to follow him from normandy and settle in separate sections of the main towns. then engaged in long distance trade, money changing, and money lending. they loaned money for interest for the building of castles and cathedrals. christians were not allowed by the church to engage in this usury. the jews could not become citizens nor could they have standing in the local courts. instead, a royal justiciar secured justice for them. they could practice their own religion. 	william the conquerer was succeeded as king by his son william ii (rufus), who transgressed many of the customs of the nation to get more money for himself. he was killed by an arrow of a fellow hunter while they and william's younger brother henry were hunting together in a crown forest. henry then became king. - the law - 	the norman conquerors brought no written law, but affirmed the laws of the nation. two they especially enforced were: . anyone caught in the act of digging up the king's road, felling a tree across it, or attacking someone so that his blood spilled on it shall pay a fine to the king. . all freemen shall have a surety who would hand him over to justice for his offenses or pay the damages or fines due. if an accused man fled, his surety would have a year to find him to obtain reimbursement. 	the conquerer proclaimed that: no cattle shall be sold except in towns and before three witnesses. for the sale of ancient chattels, there must be a surety and a warrantor. no man shall be sold over the sea. (this ended the slave trade at the port of bristol.) the death penalty for persons tried by court is abolished. - judicial procedure - 	"ecclesiastical" courts were created for bishops to preside over cases concerning the cure of souls and criminal cases, in which the ordeal was used. when the conquerer did not preside over this court, an appeal could be made to him. 	the hundred and county courts now sat without clergy and handled only "civil" cases. they were conducted by the king's own appointed sheriff. only freemen and not bound villeins had standing in this court. they continued to transact their business in the english language. 	the local jurisdictions of thegns who had grants of sac and soke or who exercised judicial functions among their free neighbors were now called "manors" under their new owners, who conducted a manor court. 	the conquerer's royal court was called the "curia regis". when the conquerer wished to determine the national laws, he summoned twelve elected representatives of each county to declare on oath the ancient lawful customs and law as they existed in the time of the popular king edward the confessor. the recording of this law was begun. a person could spend months trying to catch up with the royal court to present a case. sometimes the conquerer sent the justiciar or commissioners to hold his royal court in the various districts. the commissioner appointed groups of local men to give a collective verdict upon oath for each trial he conducted. the conquerer allowed, on an ad hoc basis, certain high-level people such as bishops and abbots and those who made a large payment, to have land disputes decided by an inquiry of recognitors. besides royal issues, the curia regis heard appeals from lower court decisions. it used english, norman, feudal, roman, and canon law legal principles to reach a decision, and was flexible and expeditious. 	a dispute between a norman and an english man over land or a criminal act could be decided by trial by combat [battle]. each combatant first swore to the truth of his cause and undertook to prove by his body the truth of his cause by making the other surrender by crying "craven" [craving forgiveness]. the combatants used weapons like pickaxes and shields. presumably the man in the wrong would not fight as well because he was burdened with a guilty conscience. although this trial was thought to reflect god's will, it favored the physically fit and adept person. after losing the trial by combat, the guilty person would be punished appropriately. 	london had its own traditions. all london citizens met at its folkmote, which was held three times a year to determine its public officers, to raise matters of public concern, and to make ordinances. its criminal court had the power of outlawry as did the county courts. trade, land, and other civil issues were dealt with by the hustings court, which met every monday in the guildhall. the city was divided into wards, each of which was under the charge of an elected alderman [elder man]. (the election was by a small governing body and the most wealthy and reputable men and not a popular election.) the aldermen had special knowledge of the law and a duty to declare it at the hustings court. each alderman also conducted wardmotes in his ward and decided criminal and civil issues between its residents. within the wards were the guilds of the city. 	the normans, as foreigners, were protected by the king's peace. the entire hundred was the ultimate surety for murder and would have to pay a "murdrum" fine of pounds [ marks] for the murder of any norman, if the murderer was not apprehended by his lord within a few days. the reaction to this was that the murderer mutilated the corpse to make identification of ethnicity impossible. so the conquerer ordered that every murder victim was assumed to be norman unless proven english. this began a court custom in murder cases of first proving the victim to be english. 	the royal court decided this case: "at length both parties were summoned before the king's court, in which there sat many of the nobles of the land of whom geoffrey, bishop of coutances, was delegated by the king's authority as judge of the dispute, with ranulf the vicomte, neel, son of neel, robert de usepont, and many other capable judges who diligently and fully examined the origin of the dispute, and delivered judgment that the mill ought to belong to st. michael and his monks forever. the most victorious king william approved and confirmed this decision." - - - chapter - - - - the times: - - 	king henry i, son of william the conquerer, furthered peace between the normans and native english by his marriage to a niece of king edward the confessor called matilda. she married him on condition that he grant a charter of rights undoing some practices of the past reigns of william i and william ii. peace was also furthered by the fact that henry i had been born in england and english was his native tongue. the private wars of lords were now replaced by less serious mock battles. 	henry was a shrewd judge of character and of the course of events, cautious before taking action, but decisive in carrying out his plans. he was faithful and generous to his friends. he showed a strong practical element of calculation and foresight. although illiterate, he was intelligent and a good administrator. he had an efficient intelligence gathering network and an uncanny knack of detecting hidden plans before they became conspiratorial action. he made many able men of inferior social position nobles, thus creating a class of career judges and administrators in opposition to the extant hereditary aristocracy. he loved books and built a palace at oxford to which he invited scholars for lively discussion. euclid's "elements" ", which deduced from axioms the properties of lines, circles, and spheres, was introduced into england. 	queen matilda served as regent of the kingdom in henry's absence, as william's queen had for him. both queens received special coronation apart from their husbands; they held considerable estates which they administered through their own officers, and were frequently composed of escheated honors. matilda was learned and a literary patron. she founded an important literary and scholastic center. her compassion was great and her charities extensive. in london she founded several almshouses and a caregiving infirmary for lepers. these were next to small monastic communities. she also had new roads and bridges built. 	henry issued charters restoring customs which had been subordinated to royal impositions by previous kings, which set a precedent for later kings. his coronation charter describes certain property rights he restored after the oppressive reign of his brother, william ii. 	"henry, king of the english, to samson the bishop, and urse of abbetot, and to all his barons and faithful vassals, both french and english, in worcestershire, greeting. [ .] know that by the mercy of god and by the common counsel of the barons of the whole kingdom of england i have been crowned king of this realm. and because the kingdom has been oppressed by unjust exactions, i now, being moved by reverence towards god and by the love i bear you all, make free the church of god; so that i will neither sell nor lease its property; nor on the death of an archbishop or a bishop or an abbot will i take anything from the demesne of the church or from its vassals during the period which elapses before a successor is installed. i abolish all the evil customs by which the kingdom of england has beunjustly oppressed. some of those evil customs are here set forth. [ .] if any of my barons or of my earls or of any other of my tenants shall die his heir shall not redeem his land as he was wont to do in the time of my brother, but he shall henceforth redeem it by means of a just and lawful 'relief`. similarly the men of my barons shall redeem their lands from their lords by means of a just and lawful 'relief`. [ .] if any of my barons or of my tenants shall wish to give in marriage his daughter or his sister or his niece or his cousin, he shall consult me about the matter; but i will neither seek payment for my consent, nor will i refuse my permission, unless he wishes to give her in marriage to one of my enemies. and if, on the death of one of my barons or of one of my tenants, a daughter should be his heir, i will dispose of her in marriage and of her lands according to the counsel given me by my barons. and if the wife of one of my tenants shall survive her husband and be without children, she shall have her dower and her marriage portion [that given to her by her parents], and i will not give her in marriage unless she herself consents. [ .] if a widow survives with children under age, she shall have her dower and her marriage portion, so long as she keeps her body chaste; and i will not give her in marriage except with her consent. and the guardian of the land, and of the children, shall be either the widow or another of their relations, as may seem more proper. and i order that my barons shall act likewise towards the sons and daughters and widows of their men. [ .] i utterly forbid that the common mintage [a forced levy to prevent loss to the king from depreciation of the coinage], which has been taken from the towns and counties, shall henceforth be levied, since it was not so levied in the time of king edward [the confessor]. if any moneyer or other person be taken with false money in his possession, let true justice be visited upon him. [ .] i forgive all pleas and all debts which were owing to my brother, except my own proper dues, and except those things which were agreed to belong to the inheritance of others, or to concern the property which justly belonged to others. and if anyone had promised anything for his heritage, i remit it, and i also remit all 'reliefs' which were promised for direct inheritance. [ .] if any of my barons or of my men, being ill, shall give away or bequeath his movable property, i will allow that it shall be bestowed according to his desires. but if, prevented either by violence or through sickness, he shall die intestate as far as concerns his movable property, his widow or his children, or his relatives or one his true men shall make such division for the sake of his soul, as may seem best to them. [ .] if any of my barons or of my men shall incur a forfeit, he shall not be compelled to pledge his movable property to an unlimited amount, as was done in the time of my father [william i] and my brother; but he shall only make payment according to the extent of his legal forfeiture, as was done before the time of my father and in the time of my earlier predecessors. nevertheless, if he be convicted of breach of faith or of crime, he shall suffer such penalty as is just. [ .] i remit all murder fines which were incurred before the day on which i was crowned king; and such murder fines as shall now be incurred shall be paid justly according to the law of king edward [by sureties]. [ .] by the common counsel of my barons i have retained the forests in my own hands as my father did before me. [ .] the knights, who in return for their estates perform military service equipped with a hauberk [long coat] of mail, shall hold their demesne lands quit of all gelds [money payments] and all work; i make this concession as my own free gift in order that, being thus relieved of so great a burden, they may furnish themselves so well with horses and arms that they may be properly equipped to discharge my service and to defend my kingdom. [ .] i establish a firm peace in all my kingdom, and i order that this peace shall henceforth be kept. [ .] i restore to you the law of king edward together with such emendations to it as my father [william i] made with the counsel of his barons. [ .] if since the death of my brother, king william [ii], anyone shall have seized any of my property, or the property of any other man, let him speedily return the whole of it. if he does this no penalty will be exacted, but if he retains any part of it he shall, when discovered, pay a heavy penalty to me. witness: maurice, bishop of london; william, bishop-elect of winchester; gerard, bishop of herefore; henry the earl; simon the earl; walter giffard; robert of montfort-sur-risle; roger bigot; eudo the steward; robert, son of haimo; and robert malet. at london when i was crowned. farewell." 	henry took these promises seriously, which resulted in peace and justice. royal justice became a force to be reckoned with by the multiplication of justices. henry had a great respect for legality and the forms of judicial action. he became known as the "lion of justice". 	the payment of queen's gold, that is of a mark of gold to the queen out of every hundred marks of silver paid, in the way of fine or other feudal incident, to the king, probably dates from henry i's reign. 	a woman could inherit a fief if she married. the primary way for a man to acquire control of land was to marry an heiress. if a man were in a lower station than she was, he had to pay for his new social status as well as have royal permission. a man could also be awarded land which had escheated to the king. if a noble woman wanted to hold land in her own right, she had to make a payment to the king. many widows bought their freedom from guardianship or remarriage from the king. women whose husbands were at war also ran the land of their husbands. 	barons were lords of large holdings of farmland called "manors". many of the lesser barons left their dark castles to live in semi- fortified stone houses, which usually were of two rooms with rug hangings for drafts, as well as the sparse furniture that had been common to the castle. there were shuttered windows to allow in light, but which also let in the wind and rain when open. the roof was of thatch or narrow overlapping wood shingles. the stone floor was strewn with hay and there was a hearth near the center of the floor, with a louvered smoke hole in the timber roof for escape of smoke. there were barns for grain and animals. beyond this area was a garden, orchard, and sometimes a vineyard. the area was circumscribed by a moat over which there was a drawbridge to a gatehouse. 	the smaller room was the lord and lady's bedroom. it had a canopied bed, chests for clothing, and wood frames on which clothes could be hung. life on the manor revolved around the larger room, or hall, where the public life of the household was passed. there, meals were served. the daily diet typically consisted of milk, soup, porridge, fish, vegetables, and bread. open hospitality accompanied this communal living. there was little privacy. manor household villeins carried the lord's sheaves of grain to the manor barn, shore his sheep, malted his grain, and chopped wood for his fire. at night some slept on the floor of the hall. others, who were cottars and bordars, had their own dwellings nearby. 	the manor house of lesser lords or knights was still built of wood, although it often had a stone foundation. 	about % of the land was arable land, about % was common pasture land (for grazing only) or meadow land (near a stream or river and used for hay or grazing), and about % was woodland. there were these types of land and wasteland on each manor. the arable land was allotted to the villeins in strips to equalize the best and worst land and their distance from the village where the villeins lived. there was three-way rotation of wheat or rye, oats or barley, and fallow land. cows, pigs, sheep, and fowl were kept. the meadow was allocated for hay for the lord's household and each villein's. the villeins held land of their lord for various services such as agricultural labor or raising domestic animals. the villeins worked about half of their time on their lord's fields [his demesne land], which was about a third of the farmland. this work was primarily to gather the harvest and to plough with oxen, using a yoke over their shoulders, and to sow in autumn and lent. they threshed grain on barn floors with flails cut from holly or thorn, and removed the kernels from the shafts by hand. work lasted from sunrise to sunset and included women and children. the older children could herd geese and pigs, and set snares for rabbits. the young children could gather nuts and berries in season and other wild edibles, and could pick up little tufts of wool shed by sheep. the old could stay in the hut and mind the children, keep the fire going and the black pot boiling, sew, spin, patch clothes, and cobble shoes. the old often suffered from rheumatism. many people had bronchitis. many children died of croup [inflammation of the respiratory passages]. life expectancy was probably below thirty-five. 	the villein retained his customary rights, his house and land and rights of wood and hay, and his right in the common land of his township. customary ways were maintained. the villeins of a manor elected a reeve to communicate their interests to their lord, usually through a bailiff, who directed the labor. sometimes there was a steward in charge of several of a lord's manors, who also held the manorial court for the lord. the steward held his land of the lord by serjeanty, which was a specific service to the lord. other serjeanty services were carrying the lord's shield and arms, finding attendants and esquires for knights, helping in the lord's hunting expeditions, looking after his hounds, bringing fuel, doing carpentry, and forging irons for ploughs. the woodward preserved the timber. the messer supervised the harvesting. the hayward removed any fences from the fields after harvest to allow grazing by cattle and sheep. the coward, bullard, and calvert tended the cows, bulls, and calves; the shepherd, the sheep; and the swineherds the pigs. the ponder impounded stray stock. there were varieties of horses: war horses, riding horses, courier horses, pack horses, and plough horses. 	the majority of manors were coextensive with a single village. the villeins lived in the village in one-room huts enclosed by a wood fence, hedge, or stone wall. in this yard was a garden of onions, leeks, mustard, peas, beans, parsley, garlic, herbs, and cabbage and apple, pear, cherry, quince, and plum trees, and beehives. the hut had a high-pitched roof thatched with reeds or straw and low eaves reaching almost to the ground. the walls are built of wood-framing overlaid with mud or plaster. narrow slits in the walls serve as windows, which have shutters and are sometimes covered with coarse cloth. the floor is dirt and may be covered with straw or rushes for warmth, but usually no hearth. in the middle is a wood fire burning on a hearthstone, which was lit by making a spark by striking flint and iron together. the smoke rose through a hole in the roof. at one end of the hut was the family living area, where the family ate on a collapsible trestle table with stools or benches. their usual food was beans and peas, oatmeal gruel, butter, cheese, vegetables, honey, rough bread made from a mixture of wheat, barley, and rye flour, herrings or other salt fish, and some salted or smoked bacon. butter had first been used for cooking and as a medicine to cure constipation. for puny children it could be salted down for the winter. the bread had been roasted on the stones of the fire; later there were communal ovens set up in villages. cooking was done over the fire by boiling in iron pots hung from an iron tripod, or sitting on the hot stones of the fire. they ate from wood bowls using a wood spoon. when they had fresh meat, it could be roasted on a spit. liquids were heated in a kettle. with drinking horns, they drank water, milk, buttermilk, apple cider, mead, ale made from barley malt, and bean and vegetable broth. they used jars and other earthenware, e.g. for storage of salt. they slept on straw mattresses or sacks on the floor or on benches. the villein regarded his bed area as the safest place in the house, as did people of all ranks, and kept his treasures there, which included his farm implements, as well as hens on the beams, roaming pigs, and stalled oxen, cattle, and horses, which were at the other end of the hut. fires were put out at night to guard against fire burning down the huts. the warmth of the animals then helped make the hut warm. around the room are a couple of chests to store salt, meal, flour, a broom made of birch twigs, some woven baskets, the distaff and spindle for spinning, and a simple loom for weaving. all clothes were homemade. they were often coarse, greasy wool and leather made from their own animals. the man wore a tunic of coarse linen embroidered on the sleeves and breast, around with he wore a girdle of rope, leather, or folded cloth. sometimes he also wore breeches reaching below the knee. the woman wore a loose short-sleeved gown, under which was a tight fitting garment with long loose sleeves, and which was short enough to be clear of the mud. if they wore shoes, they were clumsy and patched. some wore a hood-like cap. for really bad weather, a man wore on his head a hood with a very elongated point which could be wrapped around his neck. sometimes a short cape over the shoulders was attached. linen was too expensive for commoners. 	the absence of fresh food during the winter made scurvy prevalent; in the spring, people eagerly sought "scurvy grass" to eat. occasionally there would be an outbreak of a nervous disorder due to the ergot fungus growing in the rye used for bread. this manifested itself in apparent madness, frightening hallucinations, incoherent shouting, hysterical laughing, and constant scratching of itching and burning sensations. 	the villein and his wife and children worked from daybreak to dusk in the fields, except for sundays and holydays. he had certain land to farm for his own family, but had to have his grain milled at his lord's mill at the lord's price. he had to retrieve his wandering cattle from his lord's pound at the lord's price. he was expected to give a certain portion of his own produce, whether grain or livestock, to his lord. however, if he fell short, he was not put off his land. the villein, who worked the farm land as his ancestor ceorl had, now was so bound to the land that he could not leave or marry or sell an ox without his lord's consent. if the manor was sold, the villein was sold as a part of the manor. when his daughter or son married, he had to pay a "merchet" to his lord. he could not have a son educated without the lord's permission, and this usually involved a fee to the lord. his best beast at his death, or "heriot", went to his lord. if he wanted permission to live outside the manor, he paid "chevage" yearly. woodpenny was a yearly payment for gathering dead wood. sometimes a "tallage" payment was taken at the lord's will. the villein's oldest son usually took his place on his land and followed the same customs with respect to the lord. for an heir to take his dead ancestor's land, the lord demanded payment of a "relief", which was usually the amount of a year's income but sometimes as much as the heir was willing to pay to have the land. the usual aids were also expected to be paid. 	a large village also had a smith, a wheelwright, a millwright, a tiler and thatcher, a shoemaker and tanner, a carpenter wainwright and carter. 	markets were about twenty miles apart because a farmer from the outlying area could then carry his produce to the nearest town and walk back again in the daylight hours of one day. in this local market he could buy foodstuffs, livestock, household goods, fuels, skins, and certain varieties of cloth. 	the cloth was crafted by local weavers, dyers, and fullers. the weaver lived in a cottage with few and narrow windows and little furniture. he worked in the main, and sometimes the only, room. first the raw wool was washed with water at the front door to remove the grease. then its fibers were disentangled and made fine with hand cards with thistle teeth, usually by the children. then it was spun by a spinning wheel into thread, usually by the wife. on a double frame loom, a set of parallel threads was strung lengthwise. a device worked by a pedal lifted half of these threads --every other thread--while the other half remained in place. between the lifted threads and the stationary threads a shuttle was thrown by the weaver from one hand to another. then the threads which had remained stationary were raised by a second pedal and the shuttle thrown back. the shuttle carried a spool so that, as it moved, it left a thread behind it running crosswise or at right angles to the lengthwise threads and in and out between them. the lengthwise threads were called the "warp"; the shuttle thread was the "woof" or the "weft".in making cloth, it was the warp which, as the loom moved, took the worst beating. with the constant raising and lowering, these treads would wear and break, whereas the weft on which there was little strain remained intact. none of the cotton yarn which the old-fashioned wheels had spun was strong enough for warp. so it was necessary to use linen thread for the warp. 	since one loom could provide work for about six spinners, the weaver had his wool spun by other spinners in their cottages. sometimes the master weaver had an apprentice or workman working and living with him, who had free board and lodging and an annual wage. then a fuller made the cloth thick and dense by washing, soaping, beating, and agitating it, with the use of a community watermill which could be used by anyone for a fixed payment. the cloth dried through the night on a rack outside the cottage. the weaver then took his cloth, usually only one piece, to the weekly market to sell. the weavers stood at the market holding up their cloth. the cloth merchant who bought the cloth then had it dyed or dressed according to his requirements. its surface could be raised with teazleheads and cropped or sheared to make a nap. some cloth was sold to tailors to make into clothes. often a weaver had a horse for travel, a cow for milk, chickens for eggs, perhaps a few cattle, and some grazing land. butchers bought, slaughtered, and cut up animals to sell as meat. some was sold to cooks, who sold prepared foods. the hide was bought by the tanner to make into leather. the leather was sold to shoemakers and glovemakers. millers bought harvested grain to make into flour. flour was sold to bakers to make into breads. wood was bought by carpenters and by coopers, who made barrels, buckets, tubs, and pails. tilers, oilmakers and rope makers also bought raw material to make into finished goods for sale. wheelwrights made ploughs, harrows, carts, and later wagons. smiths and locksmiths worked over their hot fires. 	games with dice were sometimes played. in winter, youths ice- skated with bones fastened to their shoes. they propelled themselves by striking the ice with staves shod with iron. on summer holydays, they exercised in leaping, shooting with the bow, wrestling, throwing stones, and darting a thrown spear. the maidens danced with timbrels. since at least , children's toys included dolls, drums, hobby horses, pop guns, trumpets, and kites. 	the cold, indoors as well as outdoors, necessitated that people wear ample and warm garments. men and women of position dressed in long full cloaks reaching to their feet, sometimes having short full sleeves. the cloak generally had a hood and was fastened at the neck with a brooch. underneath the cloak was a simple gown with sleeves tight at the wrist but full at the armhole, as if cut from the same piece of cloth. a girdle or belt was worn at the waist. when the men were hunting or working, they wore gown and cloak of knee length. men wore stockings to the knee and shoes. the fashion of long hair on men returned. 	the nation grew with the increase of population, the development of towns, and the growing mechanization of craft industries. there were watermills for crafts and for supplying and draining water in all parts of the nation. in flat areas, slow rivers could be supplemented by creating artificial waterfalls, for which water was raised to the level of reservoirs. there were also some iron- smelting furnaces. coal mining underground began as a family enterprise. stone bridges over rivers could accommodate one person traveling by foot or by horseback and were steep and narrow. the wheelbarrow came into use to cart materials for building castles and cathedrals. 	merchants, who had come from the low end of the knightly class or high end of the villein class, settled around the open market areas, where main roads joined. they had plots narrow in frontage along the road and deep. their shops faced the road, with living space behind or above their stores. town buildings were typically part stone and part timber as a compromise between fire precautions and expense. 	towns, as distinct from villages, had permanent markets. as towns grew, they paid a fee to obtain a charter for self-government from the king giving the town judicial and commercial freedom. they were literate enough to do accounts. so they did their own valuation of the sum due to the crown so as not to pay the sheriff any more than that. these various rights were typically expanded in future times, and the towns received authority to collect the sum due to the crown rather than the sheriff. this they did by obtaining a charter renting the town to the burghers at a fee farm rent equal to the sum thus deducted from the amount due from the county. such a town was called a "borough" and its citizens or landholding freemen "burgesses". the freemen were �free of the borough�, which meant hey had exclusive rights and privileges with respect to it. selling wholesale could take place only in a borough. burgesses were free to marry. they were not subject to defense except of the borough. they were exempt from attendance at county and hundred courts. the king assessed a tallage [ad hoc tax] usually at ten per cent of property or income. in the boroughs, merchant and manufacturing guilds controlled prices and assured quality. the head officer of the guild usually controlled the borough, which excluded rival merchant guilds. a man might belong to more than one guild, e.g. one for his trade and another for religion. 	craft guilds grew up in the towns, such as the tanners at oxford, which later merged with the shoemakers into a cordwainers' guild. there were weavers' guilds in several towns, including london, which were given royal sanction and protection for annual payments (twelve pounds of silver for london). they paid an annual tribute and were given a monopoly of weaving cloth within a radius of several miles. guild rules covered attendance of the members at church services, the promotion of pilgrimages, celebration of masses for the dead, common meals, relief of poor brethren and sisters, the hours of labor, the process of manufacture, the wages of workmen, and technical education. king henry standardized the yard as the length of his own arm. 	trades and crafts, each of which had to be licensed, grouped together by specialty in the town. cloth makers, dyers, tanners, and fullers were near an accessible supply of running water, upon which their trade depended. streets were often named by the trade located there, such as butcher row, pot row, cordwainer row, ironmonger row, wheeler row, and fish row. hirers of labor and sellers of wheat, hay, livestock, dairy products, apples and wine, meat, poultry, fish and pies, timber and cloth all had a distinct location. some young men were apprenticed to craftsmen to assist them and learn their craft. 	london had at least twenty wards, each governed by its own alderman. most of them were named after people. london was ruled by sixteen families linked by business and marriage ties. these businesses supplied luxury goods to the rich and included the goldsmiths [sold cups, dishes, girdles, mirrors, purses knives, and metal wine containers with handle and spout], vintners [wine merchants], mercers [sold textiles, haberdashery, combs, mirrors, knives, toys, spices, ointments, and potions], drapers, and pepperers, which later merged with the spicers to become the "grocers", skinners, tanners, shoemakers, woolmen, weavers, fishmongers, armorers, and swordsmiths. there were bakehouses at which one could leave raw joints of meat to be cooked and picked up later. these businesses had in common four fears: royal interference, foreign competition, displacement by new crafts, and violence by the poor and escaped villeins who found their way to the city. when a non-freeholder stayed in london he had to find for frankpledge, three sureties for good behavior. failure to do so was a felony and the ward would eject him to avoid the charge of harboring him with its heavy fine. the arrival of ships with cargoes from continental ports and their departure with english exports was the regular waterside life below london bridge. many foreign merchants lived in london. imports included timber, hemp, fish, and furs. there was a fraternal organization of citizens who had possessed their own lands with sac and soke and other customs in the days of king edward. there were public bathhouses, but they were disreputable. a lady would take an occasional bath in a half cask in her home. the church warned of evils of exposing the flesh, even to bathe. 	middlesex county was london's territory for hunting and farming. all london craft work was suspended for one month at harvest time. london received this charter for self-government and freedom from the financial and judicial organization of the county: "henry, by the grace of god, king of england, to the archbishop of canterbury and the bishops, abbots, earls, barons, justiciars, sheriffs and all his loyal subjects, both french and english, throughout the whole of england - greeting. . be it known to you that i have granted middlesex to my citizens of london to be held on lease by them and their heirs of me and my heirs for pounds paid by tale [yearly], upon these terms: that the citizens themselves [may] appoint a sheriff, such as they desire, from among themselves, and a justiciar, such as they desire, from among themselves, to safeguard the pleas of my crown [criminal cases] and to conduct such pleas. and there shall be no other justiciar over the men of london. . and the citizens shall not take part in any [civil] case whatsoever outside the city walls. ) and they shall be exempt from the payment of scot and danegeld and the murder fine. ) and none of them shall take part in trial by combat. ) and if any of the citizens has become involved in a plea of the crown, he shall clear himself, as a citizen of london, by an oath which has been decreed in the city. ) and no one shall be billeted [lodged in a person's house by order of the king] within the walls of the city nor shall hospitality be forcibly exacted for anyone belonging to my household or to any other. ) and all the citizens of london and all their effect [goods] shall be exempt and free, both throughout england and in the seaports, from toll and fees for transit and market fees and all other dues. ) and the churches and barons and citizens shall have and hold in peace and security their rights of jurisdiction [in civil and criminal matters] along with all their dues, in such a way that lessees who occupy property in districts under private jurisdiction shall pay dues to no one except the man to whom the jurisdiction belongs, or to the official whom he has placed there. ) and a citizen of london shall not be amerced [fined by a court when the penalty for an offense is not designated by statute] to forfeiture of a sum greater than his wergeld, [hereby assessed as] shillings, in a case involving money. ) and further there shall be no miskenning [false plea causing a person to be summoned to court] in a husting [weekly court] or in a folkmote [meeting of the community], or in any other court within the city. ) and the hustings [court] shall sit once a week on monday. ) and i assure to my citizens their lands and the property mortgaged to them and the debts due to them both within the city and without. ) and with regard to lands about which they have pled in suit before me, i shall maintain justice on their behalf, according to the law of the city. ) and if anyone has exacted toll or tax from citizens of london, the citizens of london within the city shall [have the right to] seize [by process of law] from the town or village where the toll or tax was exacted a sum equivalent to that which the citizen of london gave as toll and hence sustained as loss. ) and all those who owe debts to citizens shall pay them or shall clear themselves in london from the charge of being in debt to them. ) but if they have refused to pay or to come to clear themselves, then the citizens to whom they are in debt shall [have the right to] seize [by process of law] their goods [including those in the hands of a third party, and bring them] into the city from the [town, village or] county in which the debtor lives [as pledges to compel appearance in court]. ) and the citizens shall enjoy as good and full hunting rights as their ancestors ever did, namely, in the chilterns, in middlesex, and in surrey. witnessed at westminster." 	the above right not to take part in any case outside the city relieved london citizens from the burden of traveling to wherever the king's court happened to be, the disadvantage of not knowing local customs, and the difficulty of speaking in the language of the king's court rather than in english. the right of redress for tolls exacted was new because the state of the law was that the property of the inhabitants was liable to the king or superior lord for the common debt. 	newcastle-on-tyne was recognized by the king as having certain customs, so the following was not called a grant: "these are the laws and customs which the burgesses of newcastle upon tyne had in the time of henry king of england and ought to have. [ ] burgesses can distrain [take property of another until the other performs his obligation] upon foreigners within, or without their own market, within or without their own houses, and within or without their own borough without the leave of the reeve, unless the county court is being held in the borough, and unless [the foreigners are] on military service or guarding the castle. [ ] a burgess cannot distrain upon a burgess without the leave of the reeve. [ ] if a burgess have lent anything of his to a foreigner, let the debtor restore it in the borough if he admits the debt, if he denies it, let him justify himself in the borough. [ ] pleas which arise in the borough shall be held and concluded there, except pleas of the crown. [ ] if any burgess be appealed [sued] of any plaint, he shall not plead without the borough, unless for default of [the borough] court. [ ] nor ought he to answer without day and term, unless he have fallen into 'miskenning' [error in pleading], except in matters which pertain to the crown. [ ] if a ship have put in at tynemouth and wishes to depart, the burgesses may buy what they will [from it]. [ ] if a plea arise between a burgess and a merchant, it shall be concluded before the third ebb of the tide. [ ] whatever merchandise a ship has brought by sea must be landed, except salt; and herring ought to be sold in the ship. [ ] if any man have held land in burgage for a year and a day, lawfully and without claim, he shall not answer a claimant, unless the claimant have been without the realm of england, or a child not of age to plead. [ ] if a burgess have a son, he shall be included in his father's freedom if he be with his father. [ ] if a villein come to dwell in the borough, and dwell there a year and a day as a burgess, he shall abide altogether, unless notice has been given by him or by his master that he is dwelling for a term. [ ] if any man appeal [sue] a burgess of any thing, he cannot do [trial by] battle with the burgess, but the burgess shall defend himself by his law, unless it be of treason, whereof he is bound to defend himself by [trial by] battle. [ ] neither can a burgess do [trial by] battle against a foreigner, unless he first go out of the borough. [ ] no merchant, unless he be a burgess, may buy [outside] the town either wool or leather or other merchandise, nor within the borough except [from] burgesses. [ ] if a burgess incur forfeit, he shall give six ounces [ s.] to the reeve. [ ] in the borough there is no merchet [payment for marrying off a daughter] nor heriot nor bloodwite [fine for drawing blood] nor stengesdint [fine for striking with a stick]. [ ] every burgess may have his own oven and handmill if he will, saving the right of the king's oven. [ ] if a woman be in forfeit for bread or beer, no one ought to interfere but the reeve. if she forfeit twice, she shall be chastised by her forfeit. if three times, let justice be done on her. [ ] no one but a burgess may buy webs [woven fabrics just taken off the loom] to dye, nor make nor cut them. [ ] a burgess may give and sell his land and go whither he will freely and quietly unless there be a claim against him." 	the nation produced sufficient iron, but a primitive steel [iron with carbon added] was imported. it was scarce and expensive. steel was used for tools, instruments, weapons and armor. ships could carry about people. navigation was by simple charts that included wind direction for different seasons and the direction of north. the direction of the ship could be generally determined when the sky was clear by the position of the sun during the day or the north star during the night. 	plays about miracles wrought by holy men or saints or the sufferings and fortitude of martyrs were performed, usually at the great church festivals. most nobles could read, though writing was still a specialized craft. there were books on animals, plants, and stones. the lives of the saints as told in the book "the golden legend" were popular. the story of the early king arthur was told in the book "the history of the kings of england". the story at this time stressed arthur as a hero and went as follows: arthur became king at age . he had an inborn goodness and generosity as well as courage. he and his knights won battles against foreign settlers and neighboring clans. once, he and his men surrounded a camp of foreigners until they gave up their gold and silver rather than starve. arthur married guenevere and established a court and retinue. leaving britain in the charge of his nephew modred, he fought battles on the continent for land to give to his noblemen who did him service in his household and fought with him. when arthur returned to britain, he made battle with his nephew modred who had crowned himself king. arthur's knight gawain, the son of his sister, and the enemy modred were killed and arthur was severely wounded. arthur told his kinsman constantine to rule britain as king in his place. 	the intellectual world included art, secular literature, law, and medicine. there were about physicians. 	the center of government was a collection of tenants-in-chief, whose feudal duty included attendance when summoned, and certain selected household servants of the king. the exchequer became a separate body. the payments in kind, such as grain or manual services, from the royal demesnes had been turned into money payments. the great barons made their payments directly to the exchequer. the income from royal estates was received by the exchequer and then commingled with the other funds. each payment was indicated by notches on a stick, which was then split so that the payer and the receiver each had a half showing the notches. the exchequer was the great school for training statesmen, justices, and bishops. the chancellor managed the domestic matters of the crown's castles and lands. the great offices of state were sold for thousands of pounds, which caused their holders to be on their best behavior for fear of losing their money by being discharged from office. one chancellor paid henry about pounds for the office. henry brought sheriffs under his strict control, free from influence by the barons. he maintained order with a strong hand, but was no more severe than his security demanded. 	forests were still retained by kings for their hunting of boars and stags. a master forester maintained them. the boundaries of the royal forests were enlarged. they comprised almost one-third of the kingdom. certain inhabitants thereof supplied the royal foresters with meat and drink and received certain easements and rights of common therein. the forest law reached the extreme of severity and cruelty under henry i. punishments given included blinding, emasculation, and execution. offenders were rarely allowed to substitute a money payment. when fines were imposed they were heavy. 	a substantial number of barons and monasteries were heavily in debt to the jews. the interest rate was % ( d. per pound per week). the king taxed the jews at will. - the law - 	henry restored the death penalty (by hanging) for theft and robbery, but maintained william i's punishment of mutilation by blinding and severing of limbs for other offenses, for example, bad money. he decreed in that false and bad money should be amended, so that he who was caught passing bad denarii should not escape by redeeming himself but should lose his eyes and members. and since denarii were often picked out, bent, broken, and refused, he decreed that no denarius or obol, which he said were to be round, or even a quadrans, if it were whole, should be refused. (money then reached a higher level of perfection, which was maintained for the next century.) 	counterfeiting law required that "if any one be caught carrying false coin, the reeve shall give the bad money to the king however much there is, and it shall be charged in the render of his farm [payment] as good, and the body of the offender shall be handed over to the king for judgment, and the serjeants who took him shall have his clothes." 	the forest law stated that: "he that doth hunt a wild beast and doth make him pant, shall pay shillings: if he be a freeman, then he shall pay double. if he be a bound man, he shall lose his skin." a "verderer" was responsible for enforcing this law, which also stated that: "if anyone does offer force to a verderer, if he be a freeman, he shall lose his freedom, and all that he hath. and if he be a villein, he shall lose his right hand." further, "if such an offender does offend so again, he shall lose his life." 	a wife's dower is one-third of all her husband's freehold land, unless his endowment of her at their marriage was less than one- third. 	debts to townsmen were recoverable by this law: "if a burgess has a gage [a valuable object held as security for carrying out an agreement] for money lent and holds this for a whole year and a day, and the debtor will not deny the debt or deliver the gage, and this is proved, the burgess may sell the gage before good witnesses for as much as he can, and deduct his money from the sum. if any money is over he shall return it to the debtor. but if there is not enough to pay him, he shall take distress again for the amount that is lacking." 	past due rent in a borough was punishable by payment of s. as fine. judicial activity encouraged the recording of royal legislation in writing which both looked to the past and attempted to set down law current in henry's own day. the "liberi quadripartitus" aimed to include all english law of the time. this showed an awareness of the ideal of written law as a statement of judicial principles as well as of the practice of kingship. in this way, concepts of roman law used by the normans found their way into english law. 	church law provided that only consent between a man and woman was necessary for marriage. there needn't be witnesses, ceremony, nor consummation. consent could not be coerced. penalties in marriage agreements for not going through with the marriage were deemed invalid. villeins and slaves could marry without their lords' or owners' permission. a couple living together could be deemed married. persons related by blood within certain degrees, which changed over time, of consanguinity were forbidden to marry. this was the only ground for annulment of a marriage. a legal separation could be given for adultery, cruelty, or heresy. annulment, but not separation, could result in remarriage. fathers were usually ordered to provide some sustenance and support for their illegitimate children. the court punished infanticide and abortion. counterfeiters of money, arsonists, and robbers of pilgrims and merchants were to be excommunicated. church sanctuary was to be given to fugitives of violent feuds until they could be given a fair trial. - judicial procedure - 	courts extant now are the royal court, the king's court of the exchequer, county courts, and hundred courts, which were under the control of the king. his appointed justices administered justice in these courts on regular circuits. the sheriff now only produced the proper people and preserved order at the county courts and presided over the nonroyal pleas and hundred courts. he impaneled recognitors, made arrests, and enforced the decisions of the royal courts. also there are manor courts, borough courts, and ecclesiastical courts. in the manor courts, the lord's reeve generally presided. the court consisted of the lord's vassals and declared the customs and law concerning such offenses as failure to perform services and trespass on manorial woods, meadow, and pasture. 	the king's royal court heard issues concerning the crown and breaches of the king's peace, which included almost all criminal matters. the most serious offenses: murder, robbery, rape, abduction, arson, treason, and breach of fealty, were now called felonies. other offenses were: housebreaking, ambush, certain kinds of theft, premeditated assault, and harboring outlaws or excommunicants. henry personally presided over hearings of important legal cases. he punished crime severely. offenders were brought to justice not only by the complaint of an individual or local community action, but by official prosecutors. a prosecutor was now at trials as well as a justice. trial is still by compurgation. trial by combat was relatively common. 	these offenses against the king placed merely personal property and sometimes land at the king's mercy. thus the crown increased the range of offenses subject to its jurisdiction and arrogated to itself profits from the penalties imposed. a murderer could be given royal pardon from the death penalty so that he could pay compensation to the relatives. 	the royal court also heard these offenses against the king: fighting in his dwelling, contempt of his writs or commands, encompassing the death or injury of his servants, contempt or slander of the king, and violation of his protection or his law. it heard these offenses against royal authority: complaints of default of justice or unjust judgment, pleas of shipwrecks, coinage, treasure trove [money buried when danger approached], forest prerogatives, and control of castle building. 	slander of the king, the government, or high officials was punishable as treason, felony, misprision of treason, or contempt, depending on the rank and office of the person slandered and the degree of guilt. 		henry began the use of writs to intervene in civil matters, such as inquiry by oath and recognition of rights as to land, the obligations of tenure, the legitimacy of heirs, and the enforcement of local justice. the crown used its superior coercive power to enforce the legal decisions of other courts. these writs allowed people to come to the royal court on certain issues. there was a vigorous interventionism in the land law subsequent to appeals to the king in landlord-tenant relations, brought by a lord or by an undertenant. assizes [those who sit together] of local people who knew relevant facts were put together to assist the court. henry appointed some locally based justices, called justiciars. also, he sent justices out on eyres [journeys] to hold assizes. this was done at special sessions of the county courts, hundred courts, and manor courts. records of the verdicts of the royal court were sent with these itinerant justices for use as precedent in these courts. thus royal authority was brought into the localities and served to check baronial power over the common people. these itinerant justices also transacted the local business of the exchequer in each county. henry created the office of chief justiciar, which carried out judicial and administrative functions. 	the royal court retained cases of gaol delivery [arrested person who had been held in gaol was delivered to the court] and amercements. it also decided cases in which the powers of the popular courts had been exhausted or had failed to do justice. the royal court also decided land disputes between barons who were too strong to submit to the county courts. 	the king's court of the exchequer reviewed the accounts of sheriffs, including receipts and expenditures on the crown's behalf as well as sums due to the treasury, located still at winchester. these sums included rent from royal estates, the danegeld land tax, the fines from local courts, and aid from baronial estates. its records were the "pipe rolls", so named because sheets of parchment were fastened at the top, each of which dropped into a roll at the bottom and so assumed the shape of a pipe. 	the county and hundred courts assessed the personal property of individuals and their taxes due to the king. the county court decided land disputes between people who had different barons as their respective lords. 	the free landholders were expected to attend county, hundred, and manor courts. they owed "suit" to it. the suitors found the dooms [laws] by which the presiding officer pronounced the sentence. 	the county courts heard cases of theft, brawling, beating, and wounding, for which the penalties could be exposure in the pillory or stocks. the pillory held an offender's head and hands in holes in boards, and the stocks held one's hands and feet. here the public could scorn and hit the offender or throw fruit, mud, and dead cats at him. for sex offenders and informers, stones were usually thrown. sometimes a person was stoned to death. the county courts met twice yearly. if an accused failed to appear after four successive county courts, he was declared outlaw at the fifth and forfeited his civil rights and all his property. he could be slain by anyone at will. 	the hundred court met once a month to hear neighborhood disputes, for instance concerning pastures, meadows and harvests. usually present was a priest, the reeve, four representative men, and sometimes the lord or his steward in his place. sometimes the chief pledges were present to represent all the men in their respective frankpledges. the bailiff presided over all these sessions except two, in which the sheriff presided over the full hundred court to take the view of frankpledge, which was required for those who did not have a lord to answer for him. 	the barons held court on their manors at a "hallmote" for issues arising between people living on the manor, such as bad ploughing on the lord's land or letting a cow get loose on the lord's land, and land disputes. this court also made the decision of whether a certain person was a villein or freeman. the manor court took over issues which had once been heard in the vill or hundred court. the baron charged a fee for hearing a case and received any fines he imposed, which amounted to significant "profits of justice". 	boroughs held court on trading and marketing issues in their towns such as measures and weights, as well as issues between people who lived in the borough. the borough court was presided over by a reeve who was a burgess as well as a royal official. 	wealthy men could employ professional pleader-attorneys to advise them and to speak for them in a court. 	the ecclesiastical courts dealt, until the time of henry viii, with family matters such as marriage, annulments, marriage portions, legitimacy, undue wifebeating, child abuse, orphans, bigamy, adultery, incest, fornication, personal possessions, defamation, slander which did not cause material loss (and therefore had no remedy in the temporal courts), libel, perjury, usury, mortuaries, sacrilege, blasphemy, heresy, tithe payments, church fees, certain offenses on consecrated ground, and breaches of promises under oath, e.g. to pay a debt, provide services, or deliver goods. they decided inheritance and will issues which did not concern land, but only personal property. this developed from the practice of a priest usually hearing a dying person's will as to the disposition of his goods and chattel when he made his last confession. it provided guardianship of infants during probate of their personal property. trial was basically by compurgation, with oath-helpers swearing to or against the veracity of the alleged offender's oath. an alleged offender could be required to answer questions under oath, thus giving evidence against himself. the ecclesiastical court's penalties were intended to reform and determined on a case-by-case basis. the canon law of christendom was followed, without much change by the english church or nation. penalties could include confession and public repentance of the sin before the parish, making apologies and reparation to persons affected, public embarrassment such as being dunked in water (e.g. for women scolds), walking a route barefoot and clad only in one's underwear, whippings, extra work, fines, and imprisonment in a "penitentiary" to do penance. the ultimate punishment was excommunication with social ostracism. then no one could give the person drink, food, or shelter and he could speak only to his spouse and servants. excommunication included denial of the sacraments of baptism, penance, mass, and extreme unction [prayers for spiritual healing] at death; which were necessary for salvation of the soul; and the sacrament of confirmation of one's belief in the tenets of christianity. a person could also be denied a christian burial in consecrated ground. however, the person could still marry and make a will. the king's court could order a recalcitrant excommunicant imprisoned until he satisfied the claims of the church. excommunication was usually imposed for failure to obey an order or showing contempt of the law or of the courts. it required a hearing and a written reason. if this measure failed, it was possible to turn the offender over to the state for punishment, e.g. for blasphemy or heresy. blasphemy [speaking ill of god] was thought to cause god's wrath expressed in famine, pestilence, and earthquake and was usually punished by a fine or corporal punishment, e.g. perforation or amputation of the tongue. it was tacitly understood that the punishment for heresy was death by burning. there were no heresy cases up to and few after that. the state usually assured itself the sentence was just before imposing it. the court of the rural dean was the ecclesiastical parallel of the hundred court of secular jurisdiction and usually had the same land boundaries. the archdeacons, who had been ministers of the bishop in all parts of his diocese alike, were now each assigned to one district, which usually had the same boundaries as the county. henry acknowledged occasional appellate authority of the pope, but expected his clergy to elect bishops of his choice. 	there was a separate judicial system for the laws of the forest. there were itinerant justices of the forests and four verderers of each forest county, who were elected by the votes of the full county court, twelve knights appointed to keep vert [everything bearing green leaves] and venison, and foresters of the king and of the lords who had lands within the limits of the forests. every three years, the officers visited the forests in preparation for the courts of the forest held by the itinerant justices. the inferior courts were the woodmote, held every forty days, and the swein [freeman or freeholder within the forest] mote, held three times yearly before the verderers as justices, in which all who were obliged to attend as suitors of the county court to serve on juries and inquests were to be present. - - - chapter - - - - the times: - - 	king henry ii and queen eleanor, who was twelve years older, were both intelligent, educated, energetic, well-traveled, and experienced in affairs of state. henry was the first norman king to be fully literate and he learned latin. he had many books and maintained a school. eleanor often served as regent during henry's reign and the reigns of their two sons: richard i, the lion- hearted, and john. she herself headed armies. henry ii was a modest, courteous, and patient man with an astonishing memory and strong personality. he was indifferent to rank and impatient of pomp to the point of being careless about his appearance. he usually dressed in riding clothes and was often unkempt. he was thrifty, but generous to the poor. he was an outstanding legislator and administrator. 	henry ii took the same coronation oath as edward the confessor regarding the church, laws, and justice. not only did he confirm the charter of his grandfather henry i, but he revived and augmented the laws and institutions of his grandfather and developed them to a new perfection. almost all legal and fiscal institutions appear in their first effective form during his reign. for instance, he institutionalized the assize for a specific function in judicial proceedings, whereas before it had been an ad hoc body used for various purposes. the term "assize" here means the sitting of a court or council. it came to denote the decisions, enactments, or instructions made at such. 	henry's government practiced a strict economy and he never exploited the growing wealth of the nation. he abhorred bloodshed and the sacrifice of men's lives. so he strove diligently to keep the peace, when possible by gifts of money, but otherwise with armed force. robbers were hanged and any man who raped a woman was castrated. foreign merchants with precious goods could journey safely through the land from fair to fair. these fairs were usually held in the early fall, after harvesting and sheep shearing. foreign merchants bought wool cloth and hides. frankpledge was revived, now applying to the unfree and villeins. no stranger could stay overnight (except for one night in a borough), unless sureties were given for his good behavior. a list of such strangers was to be given to itinerant justices. 	henry had character and the foresight to build up a centralized system of government that would survive him. he learned about the counties' and villages' varying laws and customs. then, using the model of roman law, he gave to english institutions that unity and system which in their casual patchwork development had been lacking. henry's government and courts forged permanent direct links between the king and his subjects which cut through the feudal structure of lords and vassals. 	he developed the methods and structure of government so that there was a great increase in the scope of administrative activity without a concurrent increase of personal power of the officials who discharged it. the government was self-regulating, with methods of accounting and control which meant that no official, however exalted, could entirely escape the surveillance of his colleagues and the king. at the same time, administrative and judicial procedures were perfected so that much which had previously required the king's personal attention was reduced to routine. 	the royal household translated the royal will into action. in the early s, there had been very little machinery of central government that was not closely associated with the royal household. there was a chief justiciar for legal matters and a treasurer. royal government was largely built upon what had once been purely domestic offices. kings had called upon their chaplains to pen letters for them. by henry ii's reign, the chancery was a highly efficient writing office through which the king's will was expressed in a flow of writs, and the chancellor an important and highly rewarded official, but he was still responsible for organizing the services in the royal chapel. similarly, the chamberlains ran the household's financial departments. they arranged to have money brought in from a convenient castle treasury, collected money from sheriffs or the king's debtors, arranged loans with the usurers, and supervised the spending of it. it was spent for daily domestic needs, the king's almsgiving, and the mounting of a military campaign. but they were still responsible for personal attendance upon the king in his privy chamber, taking care of his valuable furs, jewels, and documents, and changing his bed linens. there were four other departments of the household. the steward presided over the hall and kitchens and was responsible for supplying the household and guests with food supplies. the butler had duties in the hall and cellars and was responsible for the supply of wine and ale. the marshall arranged lodgings for the king's court as it moved about from palaces to hunting lodges, arranged the pay of the household servants, and supervised the work of ushers, watchmen, fire tenders, messengers and huntsmen. the constable organized the bodyguard and escorts, arranged for the supply of castles, and mustered the royal army. the offices of steward, constable, chamberlain, butler were becoming confined to the household and hereditary. the justiciar, chancellor, and treasurer are becoming purely state offices. they were simply sold or rented, until public pressure resulted in a requirement of ability. 	henry's council included all his tenants-in-chief, which included archbishops, bishops, abbots, priors, earls, barons, knights and socage tenants of the crown, whether they made payments directly to him or through a sheriff. the higher ones were served with a writ addressed to them personally. knights and below were summoned by a general writ to the sheriff. 	henry brought order and unity by making the king's royal court the common court of the land. its purpose was to guard the king's peace by protecting all people of free status throughout the nation and correct the disparity in punishments given by local courts. 	heretofore, the scope of the king's peace had varied to cover as little as the king's presence, his land, and his highway. the royal demesne had shrunk to about % of the land. the common law for all the nation was established by example of the king's royal court. henry erected a basic, rational framework for legal processes which drew from tradition but lent itself to continuous expansion and adaptation. 	a system of writs originated well-defined actions in the royal courts. each court writ had to satisfy specific conditions for this court to have jurisdiction over an action or event. this system determined the royal court's jurisdiction over the church, lords, and sheriffs. it limited the jurisdiction of all other courts and subordinated them to the royal court. inquests into any misdeeds of sheriffs were held, which could result in their dismissal. 	henry and eleanor spoke many languages and liked discussing law, philosophy, and history. so they gathered wise and learned men about them, who became known as courtiers, rather than people of social rank. they lived in the great and strong tower of london, which had been extended beyond the original white tower, as had other castles, so that the whole castle and grounds were defended instead of just the main building. the tower of london was in the custody of one of the two justiciars. on the west were two strongly fortified castles surrounded by a high and deeply entrenched wall, which had seven double gates. towers were spaced along the north wall and the thames river flowed below the south wall. to the west was the city, where royal friends had residences with adjoining gardens near the royal palace at westminster. the court was a center of culture as well as of government. the game of backgammon was played. people wore belts with buckles, usually brass, instead of knotting their belts. 	london extended about a mile along the thames and about half a mile inland. it had narrow twisting lanes, some with a ditch down the middle for water runoff. most of its houses were two stories, the ground floor having booths and workshops, and the upper floor living space. most of the houses were wooden structures. the richer merchants' and knights' houses were built of stone. walls between houses had to be stone to a height of feet and thatched roofs were banned because there had been many fires. there was poor compliance, but some roofs were tiled with red brick tiles. the population was about , . there were over churches for public worship, thirteen monasteries (including nunneries), and st. paul's cathedral. all were built of stone. the churches gave a place of worship for every inhabitants and celebrated feast days, gave alms and hospitality to strangers, confirmed betrothals or agreements of marriage, celebrated weddings, conducted funerals, and buried the dead. the synod of westminster of prescribed that all marriages were to be performed by the church. church law required a warning prior to suspension or excommunication. monastic, cathedral, and parish schools taught young boys grammar so they could sing and read in church services. nuns taught girls. fish but no meat was eaten on fridays. there was dark rye bread and expensive white wheat bread. vegetables included onions, leeks, and cabbage. fruits included apples, pears, plums, cherries, and strawberries. water was obtained from streams running through the town to the thames and from springs. only the rich, palaces, and churches could afford beeswax candles; others had homemade tallow [cow or sheep fat] candles which smelled and gave off smoke. most people washed their bodies. even the poor had beds and bed clothes. the beds were often shared. few babies survived childhood. if a man reached , he could expect to live until age . thousands of londoners died during a hot summer from fevers, plague and the like. 	in london, bells heralded the start and finish of all organized business. the sellers of merchandise and hirers of labor were distributed every morning into their several localities according to their trade. vendors, craftsmen, and laborers had their customary places. some vendors walked the streets announcing their wares for sale. there were craft guilds of bakers, butchers, cloth workers, and saddlers, as well as of weavers. vendors on the thames river bank sold cooked fish caught from the river and wine from ships and wine cellars. cook shops sold roasted meats covered with hotly spiced sauces. 	london bridge was built of stone for the first time. it was supported by a series of stone arches standing on small man-made islands. it had such a width that a row of wood houses and a chapel was built on top of it. in the spring it was impassable by ships because the flow of water under it varied in height on either side of the bridge by several feet at half tide. the bridge had the effect of slowing down the flow upstream, which invited wherries and rowboats and stately barges of the nobility. in winters in which it froze over, there was ice skating, ice boating, and fishing through holes in the ice. 	outside each city gate were clusters of ragged buildings, small monasteries and hostelries, groups of huntsmen's kennels, and fencing schools. outside one of the gates, a horse market was held every week. horses wore horseshoes made of iron or of a crude steel. from the southwest gate of the city along the north river bank toward westminster, there was a gradually extending line of rich men's mansions and bishops' palaces. on the southern bank of the thames river was growing the disorderly suburb of southwark, with fishermen's and boatmens' hovels, and taverns and brothels that were frequented by drunkards, rakes, and whores. on the north side of the city was a great forest with fields and wells where students and other young men from the city took walks in the fresh evening air. in some fields, country folk sold pigs, cows, oxen and sheep. mill wheels turned at various streams. near london in the country was a glass factory. at sunset, the gates of london were closed for the night. all taverns had to be closed, all lights put out, and all fires banked or covered when the bell of the church of st. martin le grand rang at : p.m. anyone found on the streets after this curfew could be arrested. gangs of young nobles or gangs of thieves, cutpurses, and looters roamed the streets after dark and sometimes rioted. offenders were often beheaded and their heads placed on spikes on london bridge. 	men in london had begun weaving cloth, which formerly had been done by women. some of the cloth was exported. the weavers guild of london received a charter by the king in , the first granted to any london craft: "know that i have conceded to the weavers of london to hold their guild in london with all the liberties and customs which they had in the time of king henry [i], my grandfather; and that none may intermeddle with the craft within the city, nor in southwark, nor in other places pertaining to london except through them and except he be in their guild, otherwise than was accustomed to be done in the time of king henry, my grandfather ...so that each year they render thence to me two marks [ s. d.] of gold at the feast of st. michael. and i forbid that any shall do injury or contumely to them on this account under penalty of pounds [ s.]. witness t[homas], chancellor, and warinus, son of gerard, chamberlain, at winchester." the liberties obtained were: ) the weavers may elect bailiffs to supervise the work of the craft, to punish defaulters, and to collect the ferm [amount owed to the king]. the bailiffs were chosen from year to year and swore before the mayor of london to do and keep their office well and truly. ) the bailiffs may hold court from week to week on pleas of debt, agreements, covenants [promises for certain performance], and minor trespasses. ) if any of the guild members are sued in any other court on any of the above pleas, the guild may challenge that plea to bring it to the guild court. ) if any member is behind in his share of the payment to the king, the bailiffs may distrain his loom until he has paid this. the weavers' guild punished members who used bad thread in their weaving or did defective weaving by showing the default to the mayor, with opportunity for the workman to make entreaty, and the mayor and twelve members of the guild then made a verdict of amercement of / mark [ s. d.] and the workman of the cloth was also punished by the guild bailiffs according to guild custom.the weavers' guild tradition of brotherliness among members meant that injury to a fellow weaver incurred a severe penalty. if a weaver stole or eloigned [removed them to a distance where they were unreachable] any other weaver's goods falsely and maliciously, then he was dismissed from the guild and his loom was taken by the guild to fulfill his portion of the annual payment to the king. the weavers were allowed to buy and to sell in london freely and quietly. they had all the rights of other freemen of the city. 	paying an annual payment freed the weavers from liability to inconsequent royal fines. failure to make this payment promptly might have led to loss of the right, hence the rigorous penalty of distraint upon the looms of individual weavers who fell into arrears. 	thus from the middle of the s, the weavers enjoyed the monopoly of their craft, rights of supervision which ensured a high standard of workmanship, power to punish infractions of their privileges, and full control of their members. in this they stand as the prototype of english medieval guilds. these rights represented the standard which all bodies of craftsmen desired to attain. the right of independent jurisdiction was exceptional. 	in henry ii's charter to london, london did not retain its right to appoint its own sheriff and justice given by henry i. london's chief magistrate was the mayor, who was appointed by the king, until . then the mayor was elected yearly by the aldermen of the city wards and approved by the king. he was typically a rich prince chosen by the barons and chief merchants of london. the commoners had no voice in his selection, but they could still approve or disapprove of the actions of the city government at ward and folk motes. at certain periods, a king asserted royal power over the selection of mayor and governance of the city. there were three ways to become a citizen of london: being the son of a citizen, apprenticeship in a craft for seven years, and purchase of citizenship. london and westminster growth led to their replacing winchester as the capital. 	st. barthomew infirmary was established in london for the care of sick pilgrims traveling to the shrine of becket in canterbury. it had been inspired by a monk who saw a vision of st. barthomew telling him to build a church and an infirmary. 	trading was facilitated by the stabilization of the amount of silver metallic content of the english coinage, which was called "sterling" [strong] silver. the compass, a magnetic lodestone [leading stone] needle mounted on a cork and floated in a bowl of water, assisted the navigation of ships. with it, one could tell the general direction of a ship when the skies were cloudy as well as clear. and one could generally track one's route by using the direction and speed of travel to calculate one's new position. london became a major trading center for foreign goods from many lands. 	about % of the knights were literate. wealthy men sent their sons to school in monasteries to prepare them for a livelihood in a profession or in trade or to the town of oxford, whose individual scholars had migrated from paris and had attracted disciples for a long time. these schools grew up around st. mary's church, but had not been started by the church as there was no cathedral school in oxford. oxford had started as a burh and had a royal residence and many tradesmen. it was given its basic charter in by the king. this confirmed to it all the customs, laws and liberties [rights] as those enjoyed by london. it became a model charter for other towns. 	bachelors at oxford studied the arts of grammar, rhetoric, and logic, and then music, arithmetic, geometry, and astronomy, until they mastered their discipline and therefore were authorized to teach it. teaching would then provide an income sufficient to support a wife. the master of arts was analogous to the master craftsman of a guild. from , the civil law was studied, and shortly thereafter, canon law. later came the study of medicine. the use of paper supplemented the use of parchment for writing. irregular edged paper was made from linen, cotton, straw, and/or wood beaten to a pulp and then spread out over a wire mesh to dry. 	theologicians taught that the universe was made for the sake and service of man, so man was placed at the center of the universe. man was made for the sake and service of god. 	every freeman holding land of a lord gave homage and fealty to him, swearing to bear him faith of the tenement held and to preserve his earthly honor in all things, saving the faith owed to the king. homage was done for lands, for free tenements, for services, and for rents precisely fixed in money or in kind. homage could be done to any free person, male or female, adult or minor, cleric or layman. a man could do several homages to different lords for different fees, but there had to be a chief homage to that lord of whom he held his chief tenement. homage was not due for dower, from the husband of a woman to whom a tenement was given as a marriage portion, for a fee given in free alms, or until the third heir, either for free maritagium [a marriage portion which is given with a daughter in marriage, that is not bound to service] or for the fee of younger sisters holding of the eldest. all fiefs to be inherited by the eldest son had to be intact. every lord could exact fealty from his servants. 	in this era, the english national race and character was formed. only a few barons still had lands in normandy. stories of good king arthur were popular and set ideals for behavior and justice in an otherwise barbaric age where force was supreme. his last battle in which he lay wounded and told a kinsman to rule in his place and uphold his laws was written in poem ("layamon's brut"). romantic stories were written and read in english. the custom of "bundling" was started by ladies with their knights, who would lie together in bed without undressing and with one in a sack the top of which was tied around his neck, as part of a romantic courtship. wealthy men often gave their daughters dowries in case they were widowed. this might be matched by a marriage settlement by a prospective husband. 	intermarriage had destroyed any distinction of normans by look or speech alone, except for the anglo-saxon manor villeins, who worked the farm land and composed about two-thirds of the population. villeins were bound to the land and could, on flight, be brought back to it. they could not give homage, but could give fealty. a villein had the equipment to farm, fish, make cheese, keep poultry, brew beer, hedge, and cut wood. although the villeins could not buy their freedom or be freed by their lord, they became less numerous because of the preference of landholders for tenants motivated to perform work by potential loss of tenure. also, the crown's protection of all its subjects in criminal matters blurred the distinction between free and unfree men. 	the boroughs were dominated by lords of local manors, who usually had a house in the borough. similarly, burgesses usually had farmland outside the borough. many boroughs were granted, by the king or manor lord, the right to have a common seal for the common business of the town. some boroughs were given the authority to confer freedom on the villein by enrolling him in their guild or allowing him to stay in the borough for a year and a day. the guilds met frequently in their drinking halls and drew up regulations for the management of their trade. each borough was represented by twelve reputable burgesses. each vill was represented by a reeve and four reputable men. certain towns sponsored great seasonal fairs for special goods, such as cloth. about % of the population lived in towns. 	in the early s, the horizontal-axle windmill was invented, probably in eastern england, on the analogy of the horizontal-axle watermill. it was very useful in flat areas where streams were too slow for a watermill unless a dam were built. but a dam often flooded agricultural land. some watermill wheels were moved by tidal currents. 	london guilds of craftsmen such as weavers, fullers, bakers, loriners (makers of bits, spurs, and metal mountings of bridles and saddles), cordwainers (makers of leather goods such as shoes), pepperers, and goldsmiths were licensed by the king, for which they paid him a yearly fee. there were also five bridge guilds (probably raising money for the future construction of london bridge in stone) and st. lazarus' guild. the wealthy guilds, which included the goldsmiths, the pepperers, and three bridge guilds had landholding members who had been thegns or knights and now became a class of royal officials: the king's minters, his chamberlain, his takers of wines, his collectors of taxes. the weavers of oxford paid s. [two marks] to have a guild. the shoemakers paid s. [five marks]. 	in , master carpenters, masons, and tilers made d. per day, their servers (the journeymen of a later time) made / d., free stone carvers / d., plasterers and daubers, diggers and sievers less. all received food in addition or / d. in its stead. 	sandwich was confirmed in its port rights by this charter: "henry ii to his sheriff and bailiffs of kent, greeting. i will and order that the monks of the holy trinity of canterbury shall have fully all those liberties and customs in sandwich which they had in the time of king henry my grandfather, as it was adjudged in pursuance of his command by the oath of twelve men of dover and twelve men of sandwich, to wit, that the aforesaid monks ought to have the port and the toll and all maritime customs in the same port, on either side of the water from eadburge gate as far as markesfliete and a ferryboat for passage. and no man has there any right except they and their ministers. wherefore i will and firmly command you and the men of sandwich that ye cause the aforesaid monks to have all their customs both in the port and in the town of sandwich, and i forbid any from vexing them on this account.and they shall have my firm peace." 	henry gave this charter to the town of bristol in : "know ye, that i have granted to my burgesses of bristol, that they shall be quit both of toll [a reasonable sum of money or portion of the thing sold, due to the owner of the fair or market on the sale of things tollable therein. it was claimed by the lord of the fee where the fair or market was held, by virtue of a grant from the crown either ostensible or presumed] and passage [money paid for crossing a river or for crossing the sea as might be due to the crown] and all custom [customary payments] throughout my whole land of england, normandy, and wales, wherever they shall come, they and their goods. wherefore i will and strictly command, that they shall have all their liberties and acquittances and free customs fully and honorable, as my free and faithful men, and that they shall be quit of toll and passage and of every other customs: and i forbid any one to disturb them on this account contrary to this my charter, on forfeiture of ten pounds [ s.]." 	john, when he was an earl and before he became king, granted these liberties to bristol about : ) no burgess may sue or be sued out of bristol. ) the burgesses are excused from the murder fine (imposed by the king or lord from the hundred or town where the murder was committed when the murderer had not been apprehended). ) no burgess may wage duel [trial by combat], unless sued for death of a stranger. ) no one may take possession of a lodging house by assignment or by livery of the marshall of the earl of gloucester against the will of the burgesses (so that the town would not be responsible for the good behavior of a stranger lodging in the town without first accepting the possessor of the lodging house). ) no one shall be condemned in a matter of money, unless according to the law of the hundred, that is, forfeiture of s. ) the hundred court shall be held only once a week. ) no one in any plea may argue his cause in miskenning. ) they may lawfully have their lands and tenures and mortgages and debts throughout my whole land, [from] whoever owes them [anything]. ) with regard to debts which have been lent in bristol, and mortgages there made, pleas shall be held in the town according to the custom of the town. ) if any one in any other place in my land shall take toll of the men of bristol, if he does not restore it after he is required to, the prepositor of bristol may take from him a distress at bristol, and force him to restore it. ) no stranger tradesman may buy within the town from a man who is a stranger, leather, grain, or wool, but only from a burgess. ) no stranger may have a shop, including one for selling wine, unless in a ship, nor shall sell cloth for cutting except at the fair. ) no stranger may remain in the town with his goods for the purpose of selling his goods, but for forty days. ) no burgess may be confined or distrained any where else within my land or power for any debt, unless he is a debtor or surety (to avoid a person owed a debt from distraining another person of the town of the debtor). ) they shall be able to marry themselves, their sons, their daughters and their widows, without the license of their lords. (a lord had the right of preventing his tenants and their families from marrying without his consent.) ) no one of their lords shall have the wardship or the disposal of their sons or daughters on account of their lands out of the town, but only the wardship of their tenements which belong to their own fee, until they become of age. ) there shall be no recognition [acknowledgment that something done by another person in one's name had one's authority] in the town. ) no one shall take tyne [wooden barrel with a certain quantity of ale, payable by the townsmen to the constable for the use of the castle] unless for the use of the lord earl, and that according to the custom of the town. ) they may grind their grain wherever they may choose. ) they may have their reasonable guilds, as well or better than they had them in the time of robert and his son william [john's wife's grandfather and father, who were earls of gloucester when the town and castle of bristol were part of the honor of gloucester]. ) no burgess may be compelled to bail any man, unless he himself chooses it, although he may be dwelling on his land. 	we have also granted to them all their tenures, messuages [dwelling house with adjoining land and adjacent buildings], in copses [thicket from which wood was cut], in buildings on the water or elsewhere to be held in free burgage [tenant to pay only certain fixed services or payments to his lord, but not military service (like free socage)]. we have granted also that any of them may make improvements as much as he can in erecting buildings anywhere on the bank and elsewhere, as long as the borough and town are not damaged thereby. also, they shall have and possess all waste land and void grounds and places, to be built on at their pleasure. 	newcastle-on-tyne's taxes were simplified in as follows: "know ye that i have granted and by this present charter have confirmed to my burgesses of newcastle upon tyne, and to all their things which they can assure to be their own, acquittance from toll and passage and pontage and from the hanse and from all other customs throughout all my land. and i prohibit all persons from vexing or disturbing them therein upon forfeiture to me." we grant to our upright men on newcastle-on-tyne and their heirs our town of newcastle-on-tyne with all its appurtenances at fee farm for pounds to be rendered yearly to us and our heirs at our exchequer by their own hand at the two terms, to wit, at easter pounds and at michaelmas pounds, saving to us our rents and prizes and assizes in the port of the same town. 	ranulph, earl of chester, made grants to his burgesses of coventry by this charter: "that the aforesaid burgesses and their heirs may well and honorably quietly and in free burgage hold of me and my heirs as ever in the time of my father and others of my ancestors they have held better more firmly and freer. in the second place i grant to them all the free and good laws which the burgesses of lincoln have better and freer. i prohibit and forbid my constables to draw them into the castle to plead for any cause, but they may freely have their portimote [leet court] in which all pleas belonging to me and them may be justly treated of. moreover they may choose from themselves one to act for me whom i approve, who a justice under me and over them may know the laws and customs, and keep them to my counsel in all things reasonable, every excuse put away, and may faithfully perform to me my rights. if any one happen to fall into my amercement he may be reasonably fined by my bailiff and the faithful burgesses of the court. furthermore, whatever merchants they have brought with them for the improvement of the town, i command that they have peace, and that none do them injury or unjustly send them into court. but if any foreign merchant shall have done anything improper in the town that same may be regulated in the portimote before the aforesaid justice without a suit at law." 	henry confirmed this charter of the earl's by as follows: i have confirmed all the liberties and free customs the earl of chester granted to them, namely, that the same burgesses may well and honorably hold in free burgage, as ever in the time of the father of the beforesaid earl, or other of his ancestors, they may have better or more firmly held; and they may have all the laws and customs which the citizens of lincoln have better and freer (e.g. their merchant guilds); all men brought to trade may be subject to the guild customs and assize of the town; those who lawfully hold land in the town for a year and a day without question and are able to prove that an accuser has been in the kingdom within the year without finding fault with them, from thence may hold the land well and in peace without pleading; those who have remained in the town a year and a day without question, and have submitted to the customs of the town and the citizens of the town are able to show through the laws and customs of the town that the accuser stood forth in the kingdom, and not a fault is found of them, then they may remain in peace in the town without question]; and that the constable of the aforesaid earl shall not bring them into the castle to plead in any case. but they may freely have their own portmanmote in which all pleas appertaining to the earl and to them may be justly treated of. moreover they may choose one from themselves to act for the earl, whom i approve, who may be a justice under the earl and over them, and who to the earl may faithfully perform his rights, and if anyone happen to fall into the earl's forfeiture he shall be acquit for pence. if by the testimony of his neighbors he cannot pay pence coins, by their advice it shall be so settled as he is able to pay, and besides, with other acquittances, that the burgesses shall not provide anything in corody [allowance in food] or otherwise whether for the said earl or his men, unless upon condition that their chattels shall be safe, and so rendered to them. furthermore, whatever merchants they have brought with them for the improvement of the town they may have peace, and none shall do them injury or unjustly send them into suit at law. but if any foreign merchant has done anything improper in the town that shall be amended [or tried] in the portmanmote before the aforesaid justice without a suit. and they who may be newcomers into the town, from the day on which they began to build in the town for the space of two years shall be acquit of all charges. 	mercantile privileges were granted to the shoemakers in oxford thus: "know ye that i have granted and confirmed to the corvesars of oxford all the liberties and customs which they had in the time of king henry my grandfather, and that they have their guild, so that none carry on their trade in the town of oxford, except he be of that guild. i grant also that the cordwainers who afterwards may come into the town of oxford shall be of the same guild and shall have the same liberties and customs which the corvesars have and ought to have. for this grant and confirmation, however, the corvesars and cordwainers ought to pay me every year an ounce of gold." 	a guild merchant for wool dominated and regulated the wool trade in many boroughs. in leicester, only guildsmen were permitted to buy and sell wool wholesale to whom they pleased or to wash their fells in borough waters. certain properties, such as those near running water, essential to the manufacture of wool were maintained for the use of guild members. the waterwheel was a technological advance replacing human labor whereby the cloth was fulled. the waterwheel turned a shaft which lifted hammers to pound the wet cloth in a trough. wool packers and washers could work only for guild members. the guild fixed wages, for instance to wool wrappers and flock pullers. strangers who brought wool to the town for sale could sell only to guild members. a guildsman could not sell wool retail to strangers nor go into partnership with a man outside the guild. each guild member had to swear the guildsman's oath, pay an entrance fee, and subject himself to the judgment of the guild in the guild court, which could fine or suspend a man from practicing his trade for a year. the advantages of guild membership extended beyond profit in the wool trade. members were free from the tolls that strangers paid. they alone were free to sell certain goods retail. they had the right to share in any bargain made in the presence of a guildsman, whether the transaction took place in leicester or in a distant market. in the general interest, the guild forbade the use of false weights and measures and the production of shoddy goods. it maintained a wool beam for weighing wool. it also forbade middlemen from profiting at the expense of the public. for instance, butchers' wives were forbidden from buying meat to sell again in the same market unless they cooked it. the moneys due to the king from the guilds of a town were collected by the town reeve. 	when the king wanted to raise an army, he summoned his major baron tenants-in-chief, who commanded their own armed dependent vassals, and he directed the sheriffs to command the minor tenants-in-chief and supply them with equipment. a baron could assemble an army in a day, but might use it to resist any perceived misgovernment by a king. armed conflict did not interfere much with daily life because the national wealth was still composed mostly of flocks and herds and simple buildings. machinery, furniture, and the stock of shops were still sparse. life would be back to normal within a week. 	henry wanted to check this power of the barons. so he took over or demolished their adulterine castles and restored the fyrd, which was a military draft of every freeman to serve in defense of the realm. at the king's call, barons were to appear in mail suit and helmet with sword and horse, knights and freeholders with s.[ marks] of rent or chattels in coat of mail with shield and lance, freeholders of s.[ marks] with lance and hauberk [coat of armor] and iron headpiece, burgesses and poorer freemen with lance and headpiece and wambais, and such as millers with pike and leather shirt. the spiritual and other baronies paid a commutation for personal service, called "scutage", at the rate of s. per knight's fee. barons and knights paid according to their knight's fee a scutage ranging from s. to s. as of , the military obligations of villeins were defined. the master of a household was responsible for every villein in his household. others had to form groups of ten and swear obedience to the chief of the group. the sheriff was responsible for maintaining lists of men liable for military service and procuring supplies. this national militia could be used to maintain the peace. the sheriff could call upon the military array of the county as a �posse comitatus� to take a band of thieves into custody or to quell disorder. for foreign wars, henry decided to use a mercenary army and a mercenary fleet. 	however, the nobility who were on the borders of the realm had to maintain their private armies for frequent border clashes. the other nobility now tended towards tournaments with mock foot battles between two sides. although subject to knightly rules, serious injury and death often resulted. for this reason, the church opposed them, but unsuccessfully. 	new taxes replaced the danegeld tax. freeholders of land paid taxes according to their ploughable land ("hidage", by the hide, and later "carucage", by the smaller norman carucate). the smaller measure curtailed estates and increased taxation. it was assessed from - s. per carcuate [ acres] and collected for the king by knights with little or no remuneration, and later by inquest of neighbors. the towns and demesne lands of the crown paid a tax based on their produce that was collected by the itinerant justices. merchants were taxed on their personal property, which was determined by an inquest of neighbors. clergy were also taxed. this new system of taxation increased the royal income about threefold. there was a standard for reliefs paid of s. [ pounds] for a knight's fee and , s. [ pounds] for a barony. at the end of henry's reign, his treasure was over , pounds. every hide of land paid the sheriff s. annually for his services in the administration and defense of the county. 	barons and their tenants and subtenants were offered an alternative of paying shield money ["scutage"] of s. d. per fee in commutation for and instead of military service for their fiefs. this enabled henry to hire soldiers who would be more directly under his own control and to organize a more efficient army. 	henry ii restored the silver coinage to its standard of purity. the first great inflation in england occurred between and . most goods and services increased threefold over these forty years. 	great households, whether of baron, prelate, monastery, or college gave their officers and servants allowances of provisions and clothing called "liveries". the officer of such departments as the buttery [cellar storing butts of wine], the kitchen, the napery [for linen cloth], and the chandlery had his fixed allowances for every day and his livery of clothing at fixed times of the year or intervals of years. 	the administration of a great estate is indicated by the pipe roll of the bishopric of winchester, - , as follows: "downton: william fitzgilbert, and joselyn the reeve, and aylward the cellarer render account of pounds s. d. for arrears of the previous year. they paid and are quit. and of pounds s. d. for landgafol. and of d. by increment of tax for a park which william of witherington held for nothing. and of s. d. by increment of tax for half a virgate of land which james oisel held without service. and of s. for assize pleas in the new market. and of s. by increment of tax for other assize pleas in the market this year. sum of the whole tax pounds s. d. in quittance of one reeve, s. in quittance for repairing the bridge, s.; of one forester, s.; of two haywards from downton and wick, s.; of one hayward from witherington, d.; of fourteen drivers from downton, wick, and nunton, for the year, s.; of two drivers from witherington for the year, s. d.; of two drivers for half the year, s.; of one swineherd, of one neaterd, of one cowherd, for the year, s.; of three shepherds from wick, barford, and nunton, for the year, s.; of one shepherd from witherington, for the year, d.; of four customary tenants, for the year, s. sum of the quittances, s. d. remainder pounds. livery: for livery to john the dean, for christmas tax, pounds s. by one tally. to the same for easter tax, pounds by one tally. to the same for st. john's tax, pounds by one tally. to the same for st. michael's tax, pounds s. by one tally. to the same for corn [grain] sold in the field pounds by two tallies. to the same for standing corn [growing crops of grain], purchases, and cheeses, pounds s. d. to the same for wool, pounds s. d. by one tally. to the same for tallage pounds by one tally. sum: pounds s. d. expenses: for ironwork of carts for year and one cart for half the year, s. d. for shoeing of plough horses for the year, s. d. for wheels for carts, s. d. for carts made over, d. before the arrival of the carpenter. for wages of the smith for the year, s. d. for one cart bound in iron bought new, s. d. for wheels purchased for one cart to haul dung, d. for leather harness and trappings, iron links, plates, halters, d. for purchase of ropes, d. for purchase of sacks, d. for purchase of locks for the granary, d. for making gates for the sheepfold, s. for one gate for the farm yard, d. for an ax and tallow purchased and for repairing the spindles of the mill for the year, s. d. for one millstone purchased for the mill s. for making one gate near the mill, d. for meat prepared in the larder, s. for beer bought for cleaning carcasses, s. d. for digging perches of land around the pasture in the marsh, s. d.; for each perch d. ob. for the dovecote newly made, s. d. ob. for cutting thick planks for flooring both dispensary and butlery, s. d. for nails or pegs bought for planking beyond the cellar, d. for enclosing the garden by making gates, s. d. ob. for digging in the gardens, s. d. for the winter work of carts, s. d. for the lent work of carts, s. d. for spreading acres with dung, d. for threshing quarters of wheat at mardon for seed, s. for winnowing the same, d. for winnowing quarters of grain for seed, s. d. for threshing quarters of grain s.; for each quarter d. for threshing quarters of mixed corn [grain], s. d. for threshing quarters of barley, s. d. for threshing quarters of oats, s. d. ob. for hauling gravel to the bridge and causeway, d. for cost of dairy, viz., tines of salt, cloth, and pots, s. d. for purchase of oxen, pounds s. for hoeing acres, s. d. for wages of two carters, one neatherd, for the year, s. for wages of one carpenter for the year, s. d. for wages of one dairy woman, s. d. for payment of mowers of the meadow at nunton, d. for sheep purchased, s. for wages of one neatherd from nunton, d. for carrying casks of wine by walter locard, in the time of martinmas, s. d. for the carrying of casks of wine from southampton to downton by the seneschal, s. d. at the feast of st. lawrence. for digging perches in the farmyard, s. d.; for each perch d. ob. for allowance of food of robert of lurdon, who was sick for days, with his man, s. d. for allowance of food to sewal who was caring for horses of the lord bishop for weeks, d. for allowance of food for roger walselin, for the two times he made gifts to the lord king at clarendon, s. d. by two tallies. for allowance of food of master robert basset, for journeys, s. d. ob. for livery of william fitzgilbert, s. d. for ells of canvas purchased for laying over the wool, and cushions prepared for the court, s. for sheep purchased, with lambs, s. sum: pounds. d. sum of livery and expenses: pounds s. d. and there is owing: pounds s. d. ob. produce of granary: the same render account of and a half quarters and strike from all the produce of grain; and of quarters brought from mardon. sum: and a half quarters and strike. for sowing acres, quarters. for bread for the lord bishop, and a half quarters delivered to john de dispensa by three tallies. for the balance sold, quarters and strike. the same render account of and a half quarters from all the produce of small corn [grain]. for the balance sold, all. the same render account of quarters and strike from all the produce of mixed corn [grain]. for seeding acres, quarters and strike. for bread for autumnal works, quarters. for the balance sold, quarters. the same render account of and a half quarters from all the produce of barley. for sowing and a half acres, and a half quarters. for payment for carts, quarter. for payment for hauling dung, quarters. for allowance of food of two carters, one carpenter, one neatherd, one dairy woman, for the year, and a half quarters. for feeding hogs in the winter, quarters. for the balance sold, and a half quarters. it is quit. the same render account of quarters and bushels from all the produce of oats. in sowing and a half acres, and a half quarters. for prebends [revenues paid for a clergyman's salary] of the lord bishop and lord king, on many occasions, and a half quarters and bushels, by five tallies. for prebends of roger wakelin, and a half quarters and bushels. for prebends of master robert basset, and a half quarters and bushel. for provender [dry food for livestock] of horses of the lord bishop and horse of richard marsh, for weeks, and a half quarters and bushels. for provender of horses of the lord bishop who stayed nights at downton, quarters. for that sent to knoyle, quarters. for provender of horse of robert of lurdon for weeks, and a half quarters. for prebends of two carters quarters and bushels. for the balance sold, quarters. and there remains quarters and strike. the same render account of and a half quarters from the whole produce of beans. for planting in the garden half a quarter. for the balance sold, quarters. it is quit. the same render account of quarters and strike from all the produce of peas. for sowing acres, and a half quarters. for the balance sold and a half quarters and strike. it is quit. the same render account of quarters from all the produce of vetches [pea plants used for animal fodder]. for feeding pigs in the winter, all. it is quit. beasts of burden: the same render account of oxen remaining from the previous year. and of yoked from useless animals. and of from the will of robert copp. and of purchased. sum: . of living ones sold, . of dead, . sum: . and there remain oxen. the same render account of goats remaining from the previous year. all remain. the same render account of cows remaining from the previous year. and of yoked from useless animals, and of found. sum: . by death, . by killing, brought for the need of the lord bishop at cranbourne, . sum: . and there remain cows. the same render account of heifers and steers remaining from the previous year. in yoked cows, heifers. in yoked oxen, bulls. sum: . the same render account of yearlings remaining from the previous year. by death, . there remain , of which are female, male. the same render account of calves born this year from cows, because the rest were sterile. in tithes, . there remain . the same render account of sheep remaining from the previous year. and of sheep for the payment of herbage, after birth, and before clipping. and of bought before birth. and of young ewes mixed with two-year-olds. sum: . in live ones sold at the time of martinmas, . in those dead before birth, . in those dead after birth and before shearing, . sum: . and there remain sheep. the same render account of wethers [castrated rams] remaining from the previous year. and of wethers mixed with two-year- olds. and of rams from lindsey, which came by brother walter before shearing. sum: . in living ones sold at the time of martinmas, wethers, rams. paid to the men of bishopton before shearing by writ of the seneschal, . by death, before shearing, . sum: . and there remain sheep. the same render account of old sheep remaining, with lambs from the previous year. by death before shearing, . and there remain ; whence are young ewes, mixed with sheep, and males, mixed with wethers. the same render account of lambs born from sheep this year because were sterile, and aborted. in payment of the smith, ; of shepherds, . in tithes, . in those dead before shearing, . sum: . and there remain lambs. the same render account of large sheepskins whence were from the rams of lindsey. in tithes, . in payment of three shepherds, . in the balance sold skins with skins from lindsey which made pondera. the same render account of lamb skins. in the balance sold, all, which made and a half pondera. the same render account of cheeses from arrears of the previous year. and of small cheeses. and of larger ones from the arrears of the previous year. and of cheeses which were begun the th of april and finished on the feast of st. michael, both days being counted. and they made cheeses two by two for days, viz. from the th april to the vigil of the feast of st. peter in chains, both days being counted. sum: cheeses. in tithes . in payment of a shepherd, and mowers of the meadow from nunton, . in duty of a carter, . in autumnal work, . in expenses of the bishop in the kitchen, by one tally. in the balance sold, cheeses, which made heads, from arrears of the previous year. in the balance sold, cheeses, which made heads in this year. in expenses of the lord king and lord bishop on the feasts of st. leonard and st. martin, small cheeses, and larger ones from the arrears of the previous year. and there remain small cheeses which make one head. the same render account of hogs remaining from the previous year. and of that were born of sows. sum: pigs. in tithes, . by death, . in those killed for the larder, . sum: pigs. and there remain pigs. also suckling pigs. sum of the whole: pigs. the same render account of chickens from arrears of the previous year. and of chickens for cheriset. sum: . in expenses of the lord bishop on the feast of st. martin, by one tally. in expenses of the same on the feast of st. leonard, , by one tally. in expenses of the lord king and bishop on the feast of the apostles peter and paul, chickens, by two tallies. in allowance for food for roger wakelin, . in allowance of food for master robert basset, . by death, . sum: chickens. it is quit. the same render account of chickens, sticae of eels, suckling pigs, freed for the expenses of the lord king and bishop. from the larder: the same freed for the expenses of the lord bishop meat of cows taken to cranbourne. the same render account of sides of bacon, arrears of the previous year. and of oxen and quarter of old beef from arrears of the previous year. and of hogs from downton. and of hogs from mardon. and of hogs from overton. and of hogs from high-clere. and of hogs from harwell. and of hogs from knoyle. sum: hogs, and meat of oxen and one quarter. in expenses of the lord bishop at the feast of st. martin, sides of bacon. in expenses of the same at the feast of st. leonard, sides of bacon, the meat of oxen, and quarter of an ox. in expenses of the same on the morrow of the feast of the holy cross, delivered to nicolas the cook, sides of bacon. in expenses of the lord bishop delivered to the same cook at knoyle on the saturday before the feast of st. michael, sides of bacon. in expenses of the same and of the lord king on the feast of the apostles peter and paul, sides of bacon. in allowance of food to master robert basset on the feast of all saints, half a side of bacon. in allowance of food to the same on wednesday and thursday before pentecost, side of bacon. in those sent to knoyle for autumnal work, sides of bacon. in three autumnal festivals at downton, and a half sides of bacon. sum: sides of bacon. and there remain sides of bacon. the same render account of skins, sausages, and offal of the said hogs. in expenses of the lord king and lord bishop at the feast of st. leonard, all. nothing remains." 	king richard the lion-hearted, unlike his father, was interested in warfare. he spent most of his term on crusade to recover jerusalem. for his expenses, he imposed a tax of one-tenth of rents and income from moveable goods. he also sold town charters, heiresses and heirs, widows, sheriffdoms, justiceships, earldoms, and licenses for tournaments. in , the bishop barons had refused to pay for a campaign of richard's war in normandy arguing that military service was only due within the kingdom of england. when richard was captured, every person in the realm was required to pay a part of his ransom of , pounds, which was double the whole revenue of the crown. aids, tallages, and carucage were imposed. the heaviest impost was one-fourth of revenue or of goods from every person.the crusaders' contact with arabs brought to england an expansion of trade, arab horses, and arabic numerals, which included "zero" and greatly facilitated arithmetic, which was very difficult with roman numerals. the church decreed that those who went on these crusades would be remitted of their sins. 	at the end of this period was the reign of king john, a short man. after his mother eleanor's death in , john ruled without her influence. he had no conscience and his oaths were no good. he trusted and was trusted by no one. he had a huge appetite for money. he imposed , pounds [ , marks] on london for confirmation of its charter. he imposed levies on the capital value of all personal and moveable goods. it began the occasional subsidies called "tenths and fifteenths" from all people on incomes from movables: one-tenth from boroughs and royal demesne land, and one-fifteenth elsewhere. he sold the wardships of minors and the marriages of heiresses to the highest bidder, no matter how base. he appointed unprincipled men to be both sheriff and justice, enabling them to blackmail property holders with vexatious writs and false accusations. writs were withheld or sold at exorbitant prices. crushing penalties were imposed to increase the profits of justice. he asserted over fowls of the air the same exclusive right as over beasts of the forest. the story of robin hood portrays john's attempt to gain the crown prematurely while richard was on the crusades to recover jerusalem for christendom.in , strong northern barons refused a royal demand for service in france or scutage, arguing that the amount was not within custom or otherwise justified. john had private and public enemies. no one trusted him and he trusted no one. his heavy handed and arbitrary rule quickly alienated all sectors of the population: other barons, bishops, london, and the commons. they joined the barons to pressure him to sign the magna carta correcting his abuses. for instance, since john had extracted many heavy fines from barons by personally adjudging them blameworthy in disputes with others, the barons wanted judgment by their peers under the established law of the courts. in arms, the barons forced john to sign the magna carta correcting his abuses. - the law - 	no one, including the lord of a manor, may take land from anyone else, for instance, by the customary process of distress, without a judgment from the royal court. this did not apply to london, where a landlord leasing or renting land could take distress in his fee. 	no one, including the lord of a manor, shall deprive an heir of the land possessed by his father, i.e. his birthright. 	a tenant may marry off a daughter unless his lord shows some just cause for refusing to consent to the marriage. a tenant had to pay an "aid" to his lord when the lord's daughter married, when the lord's son was knighted, or when the lord's person was ransomed. 	a man [or woman] may not will away his land, but he may sell it during his lifetime. 	the land of a knight or other tenant of a military fee is inherited by his eldest son. the socage land of a free sokeman goes by its ancient custom before the norman conquest. 	if a man purchased land after his marriage, his wife's dower is still one-third of the land he had when they married, or less if he had endowed her with less. but he could then enlarge her dower to one-third of all of his lands. the same rule applied if the man had no land, but endowed his wife with chattel or money instead. 	dower law prevented a woman from selling her dower during the life of her husband. but he could sell it or give it away. on his death, its possessor had to give the widow the equivalent worth of the property. 	a widower had all his wife's lands by curtesy of the nation for his lifetime to the exclusion of her heirs. 	the capital messuage [chief manor] could not be given in dower or divided, but went in its entirety to its heir. 	heirs were firstly sons, then daughters, then grandsons per stirpes, then granddaughters per stirpes, then brothers, and then sisters of the decedent. [by taking "per stirpes" instead of "per capita", a person's share goes to that person's heirs if that person predeceases the ancestor-decedent.] male heirs of land held by military service or sons of knights who were under the age of twenty-one were considered to be in custody of their lords. the lord had wardship over the heir's land, excluding the third that was the widow's dower for her life. he had to maintain the heir in a manner suitable to his dignity and restore to him when he came of age his inheritance in good condition discharged from debts. male heirs of sokemen who were under the age of fifteen were in the custody of their nearest kindred. the son of a burgess came of age when he could count money, measure cloth, and manage his father's concerns. 	female heirs remained in the custody of their lords until they married. the lord was bound to find a marriage for his ward when she became fourteen years of age and then deliver her inheritance to her. she could not marry without her lord's consent, because her husband was expected to be the lord's ally and to do homage to him. but if a female heir lost her virginity, her inheritance escheated to her lord. a woman with property could not do homage because she could not perform military service, but she generally swore fealty. she could receive homage from men. 	bastards were not heirs, even if their father married their mother after birth. 	any adult inheriting land had to pay a "relief" to the lord of the land. for a knight's fee, this was s. for socage land, this was one year's value. the amount for a barony depended upon the king's pleasure. 	heirs (but not widows) were bound to pay the debts of their fathers and ancestors. a man who married a woman who had inherited land could not sell this land without the consent of its heirs. 	when a man dies, his wife shall take one-third and his heirs shall take one-third of his chattels [movables or personal property]. the other third he may dispose of by will. if he had no heirs and no will [intestate], all his chattels would escheat to his lord. any distribution of chattels would take place after all the decedent's debts were paid from the property. 	a will required two witnesses. the testator could name an executor, but if he did not, the next of kin was the executor. a will could not be made by a man on his death bed because he may well have lost his memory and reason. also, he could not give to a younger son if in so doing, he would deprive his lawful heir. but he could give a marriage gift to a daughter regardless of the lawful heir. 	usury was receiving back more than what was lent, such as interest on a loan of money. when a usurer died, all his movables went to the king. 	a villein may not buy his own freedom (because all that he has is his lord's), but may be set free by his lord or by someone else who buys his freedom for him. he shall also be freed if the lord seduced his wife, drew his blood, or refused to bail him either in a civil or criminal action in which he was afterwards cleared. but a freed villein did not have status to plead in court, even if he had been knighted. if his free status were tried in court, only a freeman who was a witness to his being set free could avail himself of trial by combat to decide the issue. however, if the villein remained peacefully in a privileged town a year and a day and was received into its guild as a citizen, then he was freed from villeinage in every way. 	a freeman who married a villein lost his freedom. if any parent of a child was a villein, then the child was also a villein. 	all shipwrecked persons shall be treated with kindness and none of their goods or merchandise shall be taken from them. 	if one kills another on a vessel, he shall be fastened to the dead body and thrown with it into the sea. 	if one steals from another on a vessel, he shall be shaven, tarred and feathered, and turned ashore at the first land. 	passage on the thames river may not be obstructed by damming up the river on each side leaving a narrow outlet to net fish. all such weirs shall be removed. - judicial procedure - 	henry ii wanted all freemen to be equally protected by one system of law and government. so he opened his court, the royal court, to all people of free tenure. a court of five justices professionally expert in the law, traveled with the king, and on points of difficulty consulted with him. justices began to be more than presiding officers; they, instead of those attending, rendered the judgments. the chief court was in westminster, where the weightiest decisions were made. other professional itinerant justices appeared periodically in all counties of the nation to hear certain criminal and civil cases and to hear citizens' private civil suits [common pleas]. they came to perform many other tasks, including promulgating and enforcing new legislation, seeking out encroachments on royal rights, reviewing the local communities' and officials' performance of their public duties, imposing penalties for failure to do them or for corruption, gathering information about outlaws and nonperformance of homage, and assessing feudal escheats to the crown, wardships to which the king was entitled, royal advowsons, feudal aids owed to the king, tallages of the burgesses, and debts owed to the jews. the decision-making of itinerant justices on circuits begins the process which makes the custom of the royal court the common law of the nation. the county courts, where the traveling justices heard all manner of business in the counties, adopted the doctrines of the royal court, which then acquired an appellate jurisdiction. the itinerant justices came from the same small group of royal justices who were on the royal court and the exchequer, which was headed by the justiciar. difficult cases were decided by the king and wise men of his council. 	tenants of manors and of escheats in royal hands, who had been excused from the monthly county court, were required to appear. side by side with the reeve and four men of the rural townships appeared the twelve legal men of each of the chartered boroughs which owed no suit to the ordinary county court. in the formation of the jury of presentment for criminal cases, each hundred sent twelve legal men and each township four to make report to the justices. women did not serve on juries. compurgation was not used; accused persons were sent directly to the ordeal. in , twelve knights or legal men from each hundred answer before any itinerant justice for their hundred in all criminal, civil, and fiscal cases. all who are bound to attend before the itinerant justices are, in the forest counties, compelled to attend the forest courts. 	the royal court was chiefly concerned with ) the due regulation and supervision of the conduct of local government, ) the ownership and possession of land held by free tenure ("free tenement" was decided by justices to be one held for life or one held heritably [a fee]), ) the repression of serious crime, and ) the relations between the lay and the ecclesiastical courts. 	the doctrine of tenure applied universally to the land law formed the basis for judicial procedure in determining land rights. those who held lands "in fee" from the king in turn subinfeudated their land to men of lesser rank. the concept of tenure covered the earl, the knight (knight's service), the church (frank-almoin [free alms]), the tenant who performed labor services, and the tenant who paid a rent (socage). other tenures were: serjeanty [providing an implement of war or performing a nonmilitary office] and burgage. all hold the land of some lord and ultimately of the king. 	henry was determined to protect lawful seisin of land and issued assizes giving the royal court authority to decide land law issues which had not been given justice in the county or lord's court. but he did not ordain that all litigation respecting free tenements, e.g. right of seisin, should take place in the king's court. rather he gave protection to mere possession of land, which could be justified because possession was intimately associated with the maintenance of the king's peace. these assizes included issues of novel disseisin [recent ejectment] of a person's free tenement or of his common of pasture which belonged to his freehold. though the petty assize of disseisin only provided a swift preliminary action to protect possession pending the lengthy and involved grand assize on the issue of which party had the more just claim or ultimate right of seisin, the latter action was only infrequently invoked. the temptation of a strong man to seize a neighbor's land to reap its profits for a long time until the neighbor could prove and enforce his right was deterred. any such claim of recent dispossession [novel disseisin] had to be made within three years of the disseisin. 	an example of a writ of novel disseisin is: the king to the sheriff, greeting. n has complained to me that r unjustly and without a judgment has disseised him of his free tenement in [houndsditch] since my last voyage to normandy. therefore i command you that, if n gives you security for prosecuting his claim, you are to see that the chattels which were taken from the tenement are restored to it, and that the tenement and the chattels remain in peace until sunday after easter. and meanwhile you are to see that the tenement is viewed by twelve free and lawful men of the neighborhood, and their names endorsed on this writ. and summon them by good summoners to be before me or my justices on the sunday after easter, ready to make the recognition. and summon r. or his bailiff if he himself cannot be found, on the security of gage and reliable securities to be there then to hear the recognition. and have there the summoners, and this writ and the names of the sureties. witness etc. 	then an assize panel of recognition summoned concurrently with the defendant and before he had pleaded, viewed the land in question and answered, from their knowledge, these questions of fact: ) was the plaintiff disseised of the freehold in question, unjustly and without judgment? ) did the defendant commit the disseisin? testimony of a warrantor (or an attorney sent by him in his place) or a charter of warranty served to prove seisin by gift, sale, or exchange. no pleadings were necessary and the action could proceed and judgment given even without the presence of the defendant. the justices amerced the losing party with a monetary penalty. a successful plaintiff might be awarded damages to compensate for the loss of revenue. 	there was also a writ for issues of inheritance of land called "mort d'ancestor". by law the tenure of a person who died seised of a tenure in a lord's demesne which was hereditary [seisin of fee] returned to the lord, who had to give it to the heir of the decedent. if the lord refused and kept it for himself or gave it to someone else, the heir could sue in the royal court, which used an similar assize panel of twelve men to decide whether the ancestor was seised as of fee in his demesne, if the plaintiff was the nearest heir, and whether the ancestor had died, gone on a crusade but not returned, or had become a monk. then it could give possession to the heir. since about , heiresses divided the land of their father if there was no son. the widow, of course, retained her dower rights. as of , the widow held her dower from the heir instead of from the husband's lord. if the heir was a minor, the guardian lord would be in actual control of the land. a national policy was implemented that in the case of the death of a freeholder, the rights of the family, his will, and his debts were to be provided for before relief was paid to his lord. 	eventually royal justices acquired authority to decide the ultimate question of right to land using the grand assize as an alternative to the traditional procedures which ended in trial by combat. issues of the ultimate right of seisin were brought to the royal court by a contestant in a local court who "put himself [or herself] upon the king's grand assize". the assize consisted of twelve knights from the county or neighborhood who were elected by four knights of the same county or neighborhood (selected by the sheriff or the suitors) and who were known as truthful men and were likely to possess knowledge of the facts, either from personal seeing or hearing, or from statements which their fathers had made to them from their personal knowledge. the avenue by which a person who felt he had not had justice in the manor court on his claim for certain freehold land appealed to the king was by writ of right after the manor court's decision or by a writ praecipe during the manor court's proceeding. an example of a writ praecipe is: "the king to the sheriff greeting. command [praecipe] n. to render to r. justly and without delay one hide of land in a certain vill, which the said r. complains that the aforesaid n. is withholding from him. if he does not do so, summon him by good summoners to be before me or my justices on the day after the octaves of easter, to show why he has not done so. and have the summoners and this writ. witness." when the parties appeared in court, the claimant states his suit such as: "i claim against this n. the fee of half a knight and two carucates of land in a certain vill as my right and my inheritance, of which my father (or grandfather) was seized in his demesne as of fee in the time of king henry the first, and from which he took the profits to the value of five shillings at least, in grain and hay and other profits; and this i am ready to prove by this freeman of mine, h., and if any evil befalls him them by this other man or by this third man, who saw and heard it". then the defendant chose to deny the claim word for word with proof by combat or to put himself upon the grand assize of the king. if he chose trial by combat, the parties or their champions fought. the party losing, usually by crying craven, had to pay a fine of s. if the grand assize was chosen, the action was removed to the royal court. a writ of grand assize was issued as follows: "the king to the sheriff, greeting. summon by good summoners the following twelve, namely, a. b. ..., to be before me or my justices at a certain place on a certain day, ready to declare on oath whether n. or r. has the greater right in one hide of land (or other things claimed) which the aforesaid r. claims against the aforesaid n., who is tenant, and in respect of which the aforesaid n., who is tenant, has put himself upon my assize and has sought a recognition to determine which of them has the greater right in the things claimed. and meanwhile the twelve shall view the land (or tenements from which the services are demanded). and summon by good summoners n., who is tenant, to be there to hear the recognition. witness..." the claimant could object to any of the twelve knights for just cause as determined by the court. each of the twelve gave an oath as to whether the plaintiff's or the defendant's position was correct. this oath was not to speak falsehood nor conceal truth according to knowledge gained by eyewitness or "by the words of their fathers and by such words as they are bound to have such confidence in as if they were their own". if any did not know the truth of the matter, others were found until twelve agreed [the recognitors] on which party had the greater right. perjury was punished by forfeiture of all one's goods and chattels to the king and at least one year's imprisonment. if the tenant in court vouched another to warranty, such as the lord to whom he paid homage, that warrantor would stand in his place in the proceedings. if the warrantor lost, he would have to give to his vassal equivalent land in exchange. burgage tenure was not usually decided by assize. also, if the parties were relatives, neither the assize nor the combat was available to them, but the matter had to be decided by the law of inheritance. 	itinerant justices could conduct these assizes: petty and grand. in , the hundred is empowered to act on all the business of the session, including all recognitions and petty assizes ordered by the king's writ, where the property in dispute was worth no more than s. [ten pounds] a year. the four knights came to be selected by the suitors of the county court rather than by the sheriff. 	this assize procedure extended in time to all other types of civil actions. 	also removable to the royal court from the county courts were issues of a lord's claim to a person as his villein (combat not available), service or relief due to a lord, dower rights, a creditor's refusal to restore a gage [something given as security] to a debtor who offered payment or a deposit, money due to a lender, a seller, or a person to whom one had an obligation under a charter, fish or harvest or cattle taken from lands unjustly occupied, cattle taken from pasture, rights to enjoy a common, to stop troubling someone's transport, to make restitution of land wrongfully occupied, to make a lord's bailiff account to him for the profits of the manor. 	the royal court also decided disputes regarding baronies, nuisance or encroachments on royal land or public ways or public waterways, such as diverting waters from their right course and issues of nuisance by the making or destroying of a ditch or the destruction of a pond by a mill to the injury of a person's freehold. other pleas of the crown were: insult to the royal dignity, treason, breaches of safe-conducts, and injury to the king's servants. 	henry involved the royal court in many criminal issues, using the agencies of the county and hundred courts. to detect crimes, he required royal justices to routinely ask selected representatives: knights or other landholders, of every neighborhood if any person were suspected of any murder, robbery, theft, etc. a traveling royal justice or a sheriff would then hold an inquest, in which the representatives answered by oath what people were reputed to have done certain crimes. they made such inquiries through assizes of presentment, usually composed of twelve men from each hundred and the four best men of each township. (these later evolved into grand juries). these assizes were an ancient institution in many parts of the country. they consisted of representatives of the hundreds, usually knights, and villages who testified under oath to all crimes committed in their neighborhood, and indicted those they suspected as responsible and those harboring them. what henry's assize did was to insist upon the adoption of a standard procedure everywhere systematically. the procedure was made more regular instead of depending on crime waves. if indicted, the suspected persons were then sent to the ordeal. there was no trial by compurgation in the royal courts, which was abolished by henry. if determined guilty, he forfeited his chattels to the king and his land reverted to his landlord. 	if a man failed at the ordeal, the penalty prescribed by the assize of clarendon of was loss of a foot and abjuring the realm. the assize of northhampton of added loss of the right hand. a man who had a bad reputation had to abjure the realm even if he had successfully undergone the ordeal. 	as before, a person could also be brought to trial by the accusation of the person wronged. if the accused still denied the charge after the accuser testified and the matter investigated by inquiries and interrogation and then analyzed, trial by combat was held, unless the accuser was over the age of sixty or maimed, in which case the accused went to the ordeal. 	the ordeal was abolished by the lateran council of . 	criminal matters such as killing the king or sedition or betraying the nation or the army, fraudulent concealment of treasure trove [finding a hoard of coins which had been buried when danger approached], breach of the king's peace, homicide, murder (homicide for which there were no eyewitnesses), burning (a town, house, men, animals or other chattel for hatred or revenge), robbery, rape and falsifying (e.g. false charters or false measures or false money) were punishable by death or loss of limb. all murders were now punished alike because the applicability of the murdrum couldn't be determined since it was impossible to prove that the slain man had been english. 	trespass was a serious and forcible breach of the peace onto land that developed from the criminal law of felony. one found guilty of it could be fined and imprisoned as well as amerced. 	housebreaking, harboring outlaws, and interference with the royal perquisites of shipwreck and the beasts of the sea which were stranded on the coast [such as whales and sturgeon] were also punishable in the royal court. 	the royal court had grown substantially and was not always presided over by the king. to avoid court agents from having too much discretionary power, there was a systematic procedure for bringing cases to the royal court. first, a plaintiff had to apply to the king's chancery for a standardized writ into which the cause had to fit. the plaintiff had to pay a fee and provide a surety that the plea was brought in good faith. the progress of the suit was controlled at crucial points by precisely formulated writs to the sheriff, instructing him for instance, to put the disputed property under royal protection pending a decision, to impanel an assize and have it view the property in advance of the justices' arrival, to ascertain a point of fact material to the plea, or to summon a 'warrantor' to support a claim by the defendant. 	the royal court kept a record on its cases on parchment kept rolled up: its "rolls". the oldest roll of is almost completely comprised of land cases. 	anyone could appoint an agent, an "attorney", to appear in court on his behalf, it being assumed that the principal could not be present and royal authorization given. a wife could represent her husband. the principal was then bound by the actions of his agent. gradually men appeared who made a business of representing whoever would employ them. the common law system became committed to the "adversary system" with the parties struggling judicially against each other. 	the royal court took jurisdiction over issues of whether certain land was civil or ecclesiastical [assize utrum], and therefore whether the land owed services or payment to the crown or not. it also heard issues of disturbance of advowson, a complex of rights to income from a church and to the selection of a parson for the church [assize of darrein [last] presentment]. many churches had been built by a lord on his manor for his villeins. the lord had then appointed a parson and provided for his upkeep out of the income of the church. in later times, the lord's chosen parson was formally appointed by the bishop. by the s, many lords had given their advowsons to abbeys. this procedure used twelve recognitors selected by the sheriff. 	as before, the land of any person who had been outlawed or convicted of a felony escheated to his lord. his moveable goods and chattels became the king's. if he was executed, his heirs received nothing because they were of the same blood as the felon, which was corrupt: "corruption of the blood". the loss of civil rights and capacities after a sentence of death for felony or treason, which resulted in forfeiture of property and corruption of the blood, was called "attainder". 	the manor court heard cases arising out of the unfree tenures of the lord's vassals. it also heard distraint, also called "distress", issues. distraint was a landlord's method of forcing a tenant to perform the services of his fief. to distrain by the fief, a lord first obtained a judgment of his court. otherwise, he distrained only by goods and chattels without judgment of his court. a distraint was merely a security to secure a person's services, if he agreed he owed them, or his attendance in court, if he did not agree that he owed them. law and custom restricted the type of goods and chattels distrainable, and the time and manner of distraint. for instance, neither clothes, household utensils, nor a riding horse was distrainable. the lord could not use the chattels taken while they were in his custody. if cattle in custody were not accessible to the tenant, the lord had to feed them at his expense. the lord, if he were not the king, could not sell the chattel. this court also determined inheritance and dower issues. 	the court of the vill enforced the village ordinances. the hundred court met twice a month and dealt with the petty crimes of lowly men in the neighborhood of a few vills. the county and borough courts heard cases of felonies, accusations against freemen, tort, and debts. the knights make the county courts work as legal and administrative agencies of the crown. 	the peace of the sheriff still exists for his county. the king's peace may still be specially given, but it will cease upon the death of the king. law required every good and lawful man to be bound to follow the hue and cry when it was raised against an offender who was fleeing. the village reeve was expected to lead the chase to the boundary of the next jurisdiction, which would then take the responsibility to catch the man. 	admiralty issues (since no assize could be summoned on the high seas), and tenement issues of land held in frankalmoin ["free alms" for the poor to relieve the king of this burden], where the tenant was a cleric were heard in the ecclesiastical courts. 	before henry's reign, the church, with the pope's backing, had become more powerful and asserted more authority. henry tried to return to the concept of the king being appointed by god and as the head of the church as well as of the state, as in henry i's time, and to include the church in his reform of the legal system, which would make the spiritual jurisdiction and temporal jurisdiction conform to a common justice. toward this end, he published the constitutions of clarendon. but the archbishop of canterbury, thomas becket, refused to agree to them, although as chancellor he had seen the beneficial effects on the kingdom of henry's legal measures. the disagreement came to a head in henry's attempt to establish the principle of "one law to all" by having church clerics punished by the civil courts as before, instead of having "benefit of clergy" to be tried and punished only in ecclesiastical courts, even for secular crimes. clerics composed about one-sixth the population. the church courts had characteristically punished with spiritual penalties of a fine or a penance, and at most defrocking. it could not impose a death penalty, even for murder. when archbishop becket was murdered and became a martyr, "benefit of clergy" became a standard right, except for offenses in the king's forests. appeals could be made to the pope without the king's permission. the king could take a criminal cleric's chattels, but not his life. however, though theoretically bishops were elected by the body of bishops with the approval of the king, as a practical matter, the king chose the bishops and the abbots. it was a constant matter of dispute, in which the pope would sometimes involve himself. selection of archbishops was also a frequent matter of contention between king and pope. 	the church copied the assize procedure developed by the royal court to detect ecclesiastical offenses. trial was still by compurgation. bishops could request the chancery to imprison an offender who had remained excommunicant for forty days, until he made amends. chancery complied as a matter of course. this went on for six centuries. 	the delineations of jurisdiction among these courts were confused and there was much competing and overlapping of jurisdictions. however, the court could appoint arbitrators or suggest to the parties to compromise to avoid the harshness of a decisive judgment which might drive the losing party to violent self-help. 	the office of coroner was established about to supplement the judicial investigations of crimes with local officers prior to the arrival of the itinerant justices. four knights who were residents of the county and possessed sufficient land were elected by the county court for life. sometimes they had county and royal connections instead. they received no pay. they determined if sudden deaths were accidental or due to murder and the cause of death of prisoners. they also held inquests on other crime such as bodily injury, rape, and prison break. they attached [arrested] the accused and evaluated and guarded his chattels until after the trial. if the accused was found guilty, his possessions went to the king. the coroner sat with the sheriff at every county court and went with him on his turns. this office and the forbidding of sheriffs to act as justices in their own counties reduced the power of the sheriffs. the responsibility of receiving the oath of the peace is changed from the sheriff to knights, the duty of the sheriffs being only to receive and keep the criminals taken by these knights until the justices came to try them. 	also, at this time, the constitution of the grand jury of the county was defined. first, four knights were to be chosen in the county court. these were to select on oath two knights from each hundred. these two, also on oath, are to add by co-optation ten more for the jury of the hundred. 	in london, if one of two witnesses for the defense died while an action was pending, the survivor, after offering his oath, could proceed to the grave of the dead witness, and there offer oath as to what the dead man would have sworn if he had been alive. if a foreigner was bound to make oath for debt or any misdeed, he could make it with six others, his own oath being the seventh; but if could not find six supporters, he alone could make the oath and take it in the six nearest churches. 	in london, the method of capital punishment was being confined to hanging, instead of also being in the form of beheading, burning, drowning, stoning, or hurling from a rock. in cases of drowning, the offender was first sewn up in a sack with a snake, a dog, an ape, and a cock. 	chief justiciar ranulph glanvill wrote a treatise on the writs which could be brought in the royal court and the way they could be used. it was a practical manual of procedure and of the law administered in the royal court. 	there are personal actions such as "debt" for specific chattel or specific sum of money. this splits into two actions. the detinue award is for the specific chattel or its value. the action of "replevin" is available to the tenant to recover personal property which had been wrongly distrained, usually cattle; the goods are "repledged" pending action. also, but rarely used, are "covenant" to protect termors for leases of land for terms of years, and "trespass": a semi-criminal action brought by a private party for an offense punishable by death (or in the s by mutilation) such as murder, rape, robbery, or mayhem, that is done with force of arms and against the peace of the king. the use of trespass grew as private actions for felony were supplanted by public indictment. it occasioned outlawry in default of appearance. these personal actions were initiated in common law courts by their respective writs. 	these are some of the cases of novel disseisin brought to the king's court: woodbridge v. bardolf ( , king's court): ralf of woodbridge seeks before the justices his free tenement in hebston by the assize of novel disseisin against hugh bardolf. against which assize hugh said that he had that seisin by judgment of his court for the default of the same ralf. and the court has recorded the summons and distraints reasonably made on the same ralf. and ralf himself has acknowledged the summons and distraints and said that he ought not hold anything from him in that land; rather, it is of another's fee. and because neither he nor anyone for him has complained to the justices that hugh unjustly drew him into a plea concerning a tenement which ralf himself held of the fee of another lord, it is considered that hugh hold in peace. and let ralf plead by writ of right if he want and be in mercy for his false claim. turroc v. fitz walter ( , king's court): the assize came to recognize if clement son of walter unjustly and without judgment disseised matilda of turroc of her free tenement within the assize. clement comes and says that he disseised her by judgment of his court. the court is present and records that she occupied more of her lord's land than she had in dower by the sheriff and by order of the lord king, so that she was summoned and distrained to come in to court, and she so responded that she remained in mercy of s. by judgment, so that for that amercement and for other complaints she made fine with her lord for / mark [ s.] and put her land in pledge in his court and did not want to render the / mark [ s.]. and therefore by judgment of his court he seised it. matilda denies all word for word. and the same clement only produces two men from his court; and it is considered that it was no court. judgment: let matilda have her seisin and let clement be in mercy for disseisin. fitz hereward v. prior of lecton ( , king's court): the assize came to recognize if the prior of lecton unjustly and without judgment disseised reginald son of hereward and essolda his wife of his free tenement in clapston after the first coronation of the lord king. the prior says that the assize ought not be taken thereof, because he seised that land by judgment of his court for default of his service and his rent, whereof he has his court present, which asserts the same thing. it is considered that the prior replevy [give back] to them their land and give them a day in his court concerning the arrears of rents and services. and let him treat them justly by judgment of his court. stanfeld v. brewes ( , king's court): the assize comes to recognize if simon of brewes and luke cleric and peter of brewes unjustly and without a judgment disseised odo of stanfeld and juliana his wife of her free tenement in michehey within the assize. simon says that the assize ought not be taken thereof, because he took that land into his hand by judgment of his court -- which he produced and which attests to this -- for default of his service. and it was testified that odo holds that land from the same simon. simon was ordered to replevy that land to odo as well as the chattels and to treat him rightfully in his court. fitz william v. amice et al. ( , king's court): the assize comes to recognize if amice who was the wife of richard earl of clare and hugh of ceriton, john of cornherd, william of wattevill, alexander son of gilbert, alexander son of matthew, bartholomew son of alexander, robert of cornherd, and geoffrey son of leveric unjustly and without judgment disseised richard son of william of sudbury of his free tenement in sudbury after the feast of st michael next before the coronation of the lord king. the countess says that, when she was separated by papal order from the earl of clare her husband by reason of consanguinity, to which husband the vill of sudbury had been given with her as marriage portion, she came to sudbury and convoked her court and made the same richard to be summoned to come to show by what warrant he held her land. he willingly entered into the plea and vouched the earl of clare her former husband to warrant and at the day given him to have [his warrantor] he did not have him. and thus by consideration of her court she seised her land and holds it. which court she produced and which attests this. richard comes and denies that he was ever summoned or came into her court by summons or vouched to warranty or so lost seisin by consideration of the court of the countess. and this he offers [to prove]. it is considered that he defend himself -handed that he did not willingly enter into the plea and vouch to warranty. let him wage his law [prove by the -handed oath, thus, by compurgation]. pledges of the law: hugh son of hugh, wido of sudbury. day is given them at the quindene of st. john. 	this is the suit of richard of sudbury: [there follow the names, but only of men] against the countess amice who was the countess of clare, concerning whom he had complained concerning a novel disseisin of his free tenement in sudbury. she said that by judgment of her court for default of warranty which he had vouched did she make the [dis]seisin and thereof did she produce suit. and he denied against her and against the suit, and law was adjudged. and he comes with his law and makes it with the abovesaid suit. therefore it is considered that he recover thereof his seisin; let the countess be in mercy for unjust disseisin and also her men, of whom the same richard has complained. and let the same countess return to him the damages done thereof by a jury of law-worthy men of the vicinity. the names of the men of the countess are in the writ. 	a sample of crown pleas in several hundreds or wapentakes [danish name for a hundred] from to are: . denise, who was wife to anthony, appeals nicholas kam of the death of anthony, her husband, for that he wickedly slew her husband; and this she offers to prove against him under award of the court. and nicholas defends all of it. it is considered that denise's appeal is null, for in it she does not say that she saw the deed. the jurors being asked, say that they suspect him of it; the whole county likewise suspects him. let him purge himself by water [ordeal] under the assize. he has waged his law. . william de ros appeals ailward bere, roger bald, robert merchant, and nicholas parmenter, for that they came to his house and wickedly in the king's peace took away from him a certain villein of his whom he kept in chains because he wished to run away, and led him off, and in robbery carried away his wife's coffer with one mark of silver and other chattels; and this he offers to prove by his son, robert de ros, who saw it. and ailward and the others have come and defended the felony, robbery, and breach of the king's peace, and say that (as the custom is in cornwall) roger of prideaux, by the sheriff's orders, caused twelve men to come together and make oath about the said villein, whether he was the king's villein or william's and it was found that he was the king's villein, so the said roger the serjeant demanded that [william] should surrender him, and he refused, so [roger] sent to the sheriff, who then sent to deliver [the villein], who, however, had escaped and was not to be found, and william makes this appeal because he wishes to keep the chattels of thomas [the villein], to wit, two oxen, one cow, one mare, two pigs, nine sheep, eleven goats. and that this is so the jurors testify. judgment: william and robert in mercy for the false claim. william's amercement, a half-mark. robert's amercement, a half-mark. pledge for the mark, warin, robert's son. let the king have his chattels from william. pledge for the chattels, richard, hervey's son. . serlo of ennis-caven appeals osbert of dimiliock and jordan, walter's son, for that they in the king's peace wickedly assaulted, beat and seriously wounded him, so that by reason of the beating three bones were extracted from his head; and this he offers to prove against him under the court's award as a man maimed by that mayhem. and it is testified by the coroners that the wounds when fresh were shown in the county [court], and that [the bones were broken] as aforesaid. and osbert and jordan come and defend word by word. it is considered that osbert do purge himself by ordeal of iron on account of the appeal, for serlo betook himself against osbert in the first instance. and let jordan be in custody until it be known how osbert shall fare. and the other persons who are appealed as accessories are to be under pledge until [osbert's fate] be known. . the jurors say that they suspect william fisman of the death of agnes of chilleu, for the day before he had threatened her body and goods. and the four neighboring townships being sworn, suspect him of it. it is considered that he purge himself by water under the assize. . william burnell and luke of the well are suspected of the burglary at the house of richard palmer by the jurors of the hundred, and by the four neighboring townships, which are sworn. let them purge themselves by water under the assize. . malot crawe appeals robert, godfrey's son, of rape. he comes and defends. it is testified that he thus raped her and that she was seen bleeding. by leave of the justices they made concord on the terms of his espousing her. . walter wifin was burgled, and of his chattels taken from his house in the burglary certain boots were found in the house of lefchild of ranam, and the said walter pursues those boots as his. and lefchild said that he bought them in bodmin market for / pence, but he knows not from whom. and besides walter says that eleven ells of linen cloth, part of the stolen goods, were sold in lefchild's house, and all the other proceeds of the burglary, and that lefchild was the receiver of the burglars, namely, robert of hideford and alan the foresters, whom he [walter] had appealed of the crime. and lefchild defends. the jurors on being asked, say that they suspect lefchild of the said receipt. so let him purge himself by water under the assize. . eadmer of penwithen appeals martin, robert and thomas of penwithen, for that robert wounded him in the head so that twenty-eight pieces of bone were extracted, and meanwhile martin and thomas held him; and this he offers to deraign against the said robert as a man thereby maimed, under the court's award. and robert comes and defends all of it word by word. it is considered that he purge himself by ordeal of iron. let the others be in custody until it be known how robert shall fare. afterwards eadmer came and withdrew himself, and submitted to an amercement of one mark.pledges, reinfrid, gill's son, and philip his brother. let the other appellees go quit. . reginald le teinus accused of the receipt and fellowship of robert the outlaw comes and defends. the jurors say that they suspect him, and the four neighboring townships say that they suspect him of it. so let him purge himself by water under the assize. and there must be inquiry as to richard revel, who was sheriff when the said robert escaped from his custody. . osbert of reterth appeals odo hay, for that he assaulted him as he was returning from bodmin market, and in the king's peace and wickedly struck him on the hand with a stick, and afterwards struck him on the arm with his sword so that he is maimed; and this he offers to prove as a maimed man. and odo defends it all. and that [osbert] is maimed is testified by knights sent to see him. judgment: let [odo] purge himself by ordeal of iron because of this appeal. . wulward of wadebridge was burgled. and odo hay, lawrence smith, osbert mediciner, and benet his son, william miller, robert of frokemere, and maud his sister, are suspected of the burglary by the jurors of the hundred and by the four nearest townships, which are sworn. let the males purge themselves by water under the assize, and maud by ordeal of iron. roger morand fled for that burglary, and he was living in bodmin, [which town is] therefore in mercy. . robert, godfrey's son, appeals philip, william's son, for that he came on the land of [robert's] lord richard fortescue, and wickedly and in the king's peace and in robbery took eight oxen and a mantle, cape, and sword, and carried them off; and this he offers to prove against him by his body under award of the court. and philip comes and defends all of it word by word. it is considered that the appeal is null, for the oxen were not robert's, but richard's. the jurors being asked, say that [philip] did no robbery to [richard]. so richard fortescue is in mercy for a false appeal, and let philip be quit. . peter burel appeals anketil of wingely, for that he wickedly in the king's peace assaulted him in the field where he was pasturing his oxen, and beat him, and gave him four wounds in the head, and in robbery took from him an ax and a sword; and this he offers to prove against him; but he shows no wound. and anketil defends. and the county records that [peter] first appealed roger of tregadec of the same robbery and of the same wounds. therefore it is considered that the appeal is null, and let peter be in mercy for a false appeal. his amercement, a half-mark; pledge for it, ralph giffard. . the jurors are in mercy for a silly presentment, for they presented an appeal which was made in the hundred [court] and which was not presented in the county [court]. . lucy of morwinstow appeals robert de scaccis and roland of kellio and peter of lancarf of robbing her of twenty shillings and eight pence, and of a cloak, price a half-mark. and it is testified by the jurors that they did not rob her, and that she is a hireling, and that a man lay with her in a garden, and the boys hooted her, so that she left her cloak, and the boys took it and pawned it for two gallons of wine. it is considered that robert do give her three pence in respect of the wine and do go quit. and roland and peter neither come nor essoin [present an excuse for nonappearance] themselves. and their pledges were nicholas brother of alfred of bodmin and herbert reeve of bodmin, who are therefore in mercy. . osbert church accused of the death of roland, son of reginald of kennel, on the appeal of the said reginald, was detained in gaol and defends word by word. and reginald offers proof by the body of a certain freeman, arkald, who has his [reginald's] daughter to wife, who is to prove in his stead, since he has passed the age of sixty. osbert church defends all of it. the knights of the hundred of penwith say that they suspect him of the said death. the knights of kerrier [hundred] say the same. the knights of penwith [hundred] say the same. the knights of pyder [hundred] say the same. judgment: let him purge himself by water, and reginald is in mercy, for he does not allege sight and hearing, and because he has withdrawn himself, and put another in his place, who neither saw nor heard and yet offered to prove it, and so let both reginald and arkald be in mercy. osbert is purged by the water. osbert's pledges: henry little, henry of penant, ossulf black, roger of trevithow, john of glin, ralph of trelew. . roger of wick [was] appealed of the death of brictmer by the appeal of hawise, brictmer's wife, and was captured in flight, as say john of winielton and ralph of mertherin, but the flight is not testified by the hundred. kerier [hundred] says the same. penwith [hundred] says the same. so is considered that he purge himself by water. he is purged. roger's pledges: ralph of trelew, ogier of kurnick, richard, simon's son, alfred malvoisin, everwin of lande, john of kewerion, warin of tiwardeni, baldwin tirel, roger of trevithow, john of glin, william of dunham, thomas, osbert's son. . richard, william's son, appealed luke, richard's son, and william, the servant of alan clerk, of robbery and of binding him. the appellees have not come nor essoined themselves. the county together with the wapentake says that they were appealed, not of the king's peace, but of the sheriff's peace, so that the suit was and is in the county [court], and therefore they were not attached to come before the justices. therefore the jurors are in mercy for presenting what they ought not to have presented. . william, hawise's son, appeals richard, son of robert of somercotes, for that he came in the king's peace to his house at somercotes, and broke his house and robbed him of.[an abrasion] shillings, and a cape and surcoat, and twenty-five fowls, and twenty shillings worth of corn [grain], and wounded him in the head with the wound that he shows; and this he offers to prove against him as the court shall consider etc. and richard comes and defends the breach of the king's peace and the housebreaking, wounding and robbery, but confesses that he came to a certain house, which william asserts to be his [william's], as to his [richard's] own proper house, which escheated into his hand on the death of roger his villein, and there he took certain chattels which were his villein's and which on his villein's death were his [richard's] own: to wit, five thraves of oats, thirteen sheaves of barley, and twenty-five fowls; and he offers the king twenty shillings for an inquest [to find] whether this be so or no. and william says that richard says this unjustly, for the said roger never had that house nor dwelt therein, nor were those chattels roger's, but he [william] held that house as his own, and the chattels there seized were his. the jurors being questioned whether roger did thus hold the house of richard in villeinage, say, yes. also the coroners and the whole county testify that [william] never showed any wound until now; and the wound that he now shows is of recent date. therefore it is considered that the appeal is null, and let richard go quit, and william be in mercy for his false claim. pledges for the amercement, gilbert, robert's son, and richard, haldeng's son. . astin of wispington appeals simon of edlington, for that he wickedly and in the king's peace assaulted him in his meadows and put out his eye, so that he is maimed of that eye; and this he offers to prove etc. simon comes and defends all of it word by word. and the coroners and the county testify that hitherto the appeal has been duly sued, at first by [astin's] wife, and then by [astin himself]. judgment: let law be made, and let it be in the election of the appellee whether he or astin shall carry the iron. he has chosen that astin shall carry it. astin has waged the law. simon's pledges, william of land and his frankpledge and ralph of stures. astin's pledges, roger thorpe, osgot of wispington, and william, joel's brother. afterwards came [the appellor and appellee] and both put themselves in mercy. . gilbert of willingham appeals gilbert, geoffrey's son, for that he in the king's peace and wickedly set fire to his house and burned it, so that after the setting fire [the appellor] went forth and raised hue and cry so that his neighbors and the township of willingham came thither, and he showed them [the appellee] in flight and therefore they pursued him with the cry; and this he offers etc. and the appellee defends all of it word by word etc. and the neighbors and the township of willingham being questioned, say that they never saw him in flight, and that [the appellor] never showed him to them. likewise the jurors say that in their belief he appeals him out of spite rather than for just cause. therefore it is considered that the appeal is null, and the appellee is in mercy for a half-mark [ s.]. pledge for the amercement, robert walo. . william burel appeals walter morcock, for that he in the king's peace so struck and beat margery, [william's] wife, that he killed the child in her womb, and besides this beat her and drew blood. and william of manby, the beadle, testifies that he saw the wound while fresh and the blood in the wapentake [court]. and the serjeant of the riding and the coroners and the twelve knights testify that they never saw wound nor blood. and so it is considered that the appeal is null, for one part of the appeal being quashed, it is quashed altogether, and william burel is in mercy. let him be in custody. and william manby is in mercy for false testimony. pledges for william's amercement, richard of bilsby, elias of welton. . william marshall fled for the death of sigerid, denis' mother, whereof denis appeals him; and he was in the prior of sixhills' frankpledge of sixhills, which is in mercy, and his chattels were two cows and one bullock. afterwards came the prior of sixhills and undertook to have william to right before the justices. and he came, and then denis, sigerid's son, came and appealed him of his mother's death. and it was testified that [denis] had an elder brother, and that nine years are past since [sigerid] died, and that she lived almost a year after she was wounded, and that denis never appealed [william] before now. therefore it is considered that the appeal is null and that denis be in mercy. pledge for the amercement, his father, ralph, son of denis. . alice, wife of geoffrey of carlby, appealed william, roger's son, and william his son and roger his son of the death of william her brother. and alice does not prosecute.therefore let her be in mercy and let her be arrested. to judgment against the sheriff who did not imprison the said persons who were attached, whereas they are appealed of homicide, and to judgment also as to a writ which he ought to produce. . hawise, thurstan's daughter, appeals walter of croxby and william miller of the death of her father and of a wound given to herself. and she has a husband, robert franchenay, who will not stir in the matter. therefore it is considered that the appeal is null, for a woman has no appeal against anyone save for the death of her husband or for rape. and let robert be in mercy on his wife's account, for a half-mark [ s.], and let the appellees be quit. pledge for robert's amercement, richard dean of mareham, who has lay property. wapentake of aswardhurn. . juliana of creeton appeals adam of merle of battery and robbery. and adam does not come, but essoins himself as being in the king's service beyond seas. and for that it is not allowed to anyone appealed of the king's peace to leave the land without a warrant before he has been before justices learned in the law, his pledges are in mercy: to wit, segar of arceles, alan of renington, and robert of searby. adam himself is excused from the plea by the essoin that he has cast. . thomas, leofwin's son, appeals alan harvester, for that he in the king's peace assaulted him as he went on the highway, and with his force carried him into alan's house, and struck him on the arm so that he broke a small bone of his arm, whereby he is maimed, and robbed him of his cape and his knife, and held him while eimma, [alan's] wife, cut off one of his testicles and ralph pilate the other, and when he was thus dismembered and ill-treated, the said alan with his force carried him back into the road, whereupon as soon as might be he raised the cry, and the neighbors came to the cry, and saw him thus ill-treated, and then at once he sent to the king's serjeant, who came and found, so [thomas] says, the robbed things in alan's house and then as soon as might be [thomas] went to the wapentake [court] and to the county [court] and showed all this. so inquiry is made of the king's sergeant, who testifies that he came to alan's house and there found the knife and the testicles in a little cup, but found not the cape. also the whole county testifies that [thomas] never before now appealed alan of breaking a bone. and so it is considered that the appeal is null, and that [thomas] be in mercy, and that the other appellees be quit. thomas also appeals emma, alan's wife, for that she in the peace aforesaid after he was placed in her lord's house cut off one of his testicles. he also appeals ralph pilate, for that he cut off the other of his testicles. . the twelve jurors presented in their verdict that austin, rumfar's son, appealed ralph gille of the death of his brother, so that [ralph] fled, and that william, rumfar's son, appealed benet carter of the same death, and ranulf, ralph's son, appealed hugh of hyckham of the same death and baldwin of elsham and ralph hoth and colegrim as accessories. and the coroners by their rolls testify this also. but the county records otherwise, namely, that the said ralph gille, benet, hugh, baldwin, ralph [hoth] and gocegrim were all appealed by ranulf, ralph's son, and by no one else, so that four of them, to wit, ralph gille, hugh, benet and colegrim, were outlawed at the suit of the said ranulf, and that the said persons were not appealed by anyone other than the said ranulf. and for that the county could not [be heard to] contradict the coroners and the said jurors who have said their say upon oath, it is considered etc. thereupon the county forestalled the judgment and before judgment was pronounced made fine with pounds [ , s.] [to be collected throughout the county], franchises excepted. . hereward, william's son, appeals walter, hugh's son, for that he in the king's peace assaulted him and wounded him in the arm with an iron fork and gave him another wound in the head; and this he offers to prove by his body as the court shall consider. and walter defends all of it by his body. and it is testified by the coroners and by the whole county that hereward showed his wounds at the proper time and has made sufficient suit. therefore it is considered that there be battle. walter's pledges, peter of gosberton church, and richard hereward's son. hereward's pledges, william his father and the prior of pinchbeck. let them come armed in the quindene of st. swithin at leicester. . william gering appeals william cook of imprisonment, to wit, that he with his force in the king's peace and wickedly, while [gering] was in the service of his lord guy at the forge, took him and led him to freiston to the house of william longchamp, and there kept him in prison so that his lord could not get him replevied; and this he offers to prove as the court shall consider. and william cook comes and defends the felony and imprisonment, but confesses that whereas he had sent his lord's servants to seize the beasts of the said guy on account of a certain amercement which [guy] had incurred in the court of [cook's] lord [longchamp], and which though often summoned he had refused to pay, [gering] came and rescued the beasts that had been seized and wounded a servant of [cook's] lord, who had been sent to seize them, whereupon [cook] arrested [gering] until he should find pledges to stand to right touching both the wounding and the rescue, and when [gering's] lord [guy] came for him, [cook] offered to let him be replevied, but this [guy] refused, and afterwards he repeated the offer before the king's serjeant, but even then it was refused, and then [cook] let [gering] go without taking security. and guy says that he puts himself upon the wapentake, whether the imprisonment took place in manner aforesaid, and whether he [guy] at once showed the matter to the king's serjeant, or no. and william cook does the same. and the wapentake says that the alleged [imprisonment] took place in lent, and guy did not show the matter to the wapentake until a fortnight before st. botulph's day. and the county together with the coroners says that they never heard the suit in their court. therefore it is considered that the appeal is null, and guy is in mercy. and let william and those who are appealed as accessories go quit. . the jurors say that andrew, sureman's son, appealed peter, leofwin's son, thomas squire and william oildene of robbery. and he does not prosecute. so he and stephen despine and baldwin long are in mercy, and the appellees go without day. afterwards comes andrew and says that [the appellees] imprisoned him by the order of william malesoures in the said william's house, so that he sent to the sheriff that the sheriff might deliver him, whereupon the sheriff sent his serjeant and others thither, who on coming there found him imprisoned and delivered him and he produces witnesses, to wit, nicholas portehors and hugh, thurkill's son, who testify that they found him imprisoned, and he vouches the sheriff to warrant this. and the sheriff, on being questioned, says that in truth he sent thither four lawful men with the serjeant on a complaint made by nicholas portehors on andrew's behalf. and those who were sent thither by the sheriff testify that they found him at liberty and disporting himself in william's house. therefore it is considered that the appeal is null [and andrew is in mercy] for his false complaint and nicholas portehors and hugh, thurkill's son, are in mercy for false testimony. andrew and hugh are to be in custody until they have found pledges [for their amercement]. . the jurors say that geoffrey cardun has levied new customs other than he ought and other than have been usual, to wit, in taking from every cart crossing his land at winwick with eels, one stick of eels, and from a cart with greenfish, one greenfish, and from a cart with salmon, half a salmon, and from a cart with herrings, five herrings, whereas he ought to take no custom for anything save for salt crossing his land, to wit, for a cartload, one bole of salt, and in that case the salter ought to have a loaf in return for the salt, and also if the salter's cart breaks down, the salter's horses ought to have pasture on geoffrey's land without challenge while he repairs his cart. and geoffrey comes and confesses that he takes the said customs, and ought to take them, for he and his ancestors have taken them from the conquest of england, and he puts himself on the grand assize of our lord the king, and craves that a recognition be made whether he ought to take those customs or no. and afterwards he offers the king twenty shillings that this action may be put before sir geoffrey fitzpeter [the justiciar]. pledge for the twenty shillings, richard of hinton. . the jurors say that hugh, son of walter priest, was outlawed for the death of roger rombald at the suit of robert rombald, and afterwards returned under the [protection of the] king's writ, and afterwards was outlawed for the same death on the appeal of geoffrey, thurstan's son. the county therefore is asked by what warrant they outlawed the same man twice for the same death, and says that of a truth in king richard's time the said hugh was outlawed at the suit of one lucy, sister of the said roger, so that for a long time afterwards he hid himself; and at length he came into the county [court] and produced letters of sir geoffrey fitzpeter in the form following: "g. fitzpeter etc. to the sheriff of northamptonshire, greeting, know thou that the king hath pardoned to hugh, son of the priest of grafton, his flight and the outlawry adjudged to him for the death of a certain slain man, and hath signified to us by his letters that we be aiding to the said hugh in reestablishing the peace between him and the kinsfolk of the slain; wherefore we command thee that thou be aiding to the said hugh in making the peace aforesaid, and do us to wit by thy letters under seal what thou hast done in this matter, since we are bound to signify the same to the king. in witness etc. by the king's writ from beyond seas." and the said letters being read in full county [court] the county told the said hugh that he must find pledges that he would be in the king's peace, and he went away to find pledges, and afterwards did not appear. but the kinsfolk of the slain, having heard that hugh had returned after his outlawry, came to the next county [court] and robert rombald produced geoffrey, thurstan's son, who said that if he saw the said hugh he would sue against him the death of the said roger, who was [his kinsman]. and the county showed him how hugh had brought the justiciar's letters pardoning him the flight and outlawry, and that he was to find pledges to stand to the king's peace, but had not returned. whereupon the king's serjeant was ordered to seek hugh and bring him to a later county [court]. and at a later county [court] geoffrey offered himself against hugh, and hugh did not appear; whereupon the king's serjeant being questioned said that he had not found him, and the county advised [geoffrey] to come to another county [court], because if in the meantime hugh could be found, he would be brought to the county [court]. then at the third county [court] the said geoffrey offered himself, and it was testified by the serjeant that hugh had not yet been found, wherefore the county said that as hugh would not appear to the king's peace, he must bear the wolf's head as he had done before. to judgment against the coroners and the twelve jurors. . robert of herthale, arrested for having in self-defense slain roger, swein's son, who had slain five men in a fit of madness, is committed to the sheriff that he may be in custody as before, for the king must be consulted about this matter. the chattels of him who killed the five men were worth two shillings, for which richard [the sheriff must account]. . sibil, engelard's daughter, appeals ralph of sandford, for that he in the king's peace and wickedly and in breach of the peace given to her in the county [court] by the sheriff, came to the house of her lord [or husband] and broke her chests and carried off the chattels, and so treated her that he slew the child that was living in her womb. afterwards she came and said that they had made a compromise and she withdrew herself, for they have agreed that ralph shall satisfy her for the loss of the chattels upon the view and by the appraisement of lawful men; and ralph has assented to this. . william pipin slew william [or john] guldeneman and fled. he had no chattels. let him be exacted. and hugh fuller was taken for this death and put in gaol because the said john [or william] was slain in his house. and hugh gives to the king his chattels which were taken with him, that he may have an inquest [to find] whether he be guilty thereof or no. the jurors say that he is not guilty, and so let him go quit thereof. and william picot is in mercy for having sold hugh's chattels before he was convicted of the death, and for having sold them at an undervalue, for he sold them, as he says, for three shillings, and the jurors say that they were worth seventeen shillings, for which william picot and those who were his fellows ought to account. and william says that the chattels were sold by the advice of his fellows, and his fellows deny this. . robert white slew walter of hugeford and fled. the jurors say that he was outlawed for the death, and the county and the coroners say that he was not outlawed, because no one sued against him. and because the jurors cannot [be heard to] contradict the county and the coroners, therefore they are in mercy, and let robert be exacted. his chattels were [worth] fifteen shillings, for which r. of ambresleigh, the sheriff, must account. . elyas of lilleshall fled to church for the death of a woman slain at lilleshall. he had no chattels. he confessed the death and abjured the realm. alice crithecreche and eva of lilleshall and aldith and mabel, geoffrey and robert of lilleshall, and peter of hopton were taken for the death of the said woman slain at lilleshall. and alice, at once after the death, fled to the county of stafford with some of the chattels of the slain, so it is said, and was taken in that county and brought back into shropshire and there, as the king's serjeant and many knights and lawful men of the county testify, in their presence she said, that at night she heard a tumult in the house of the slain; whereupon she came to the door and looked in, and saw through the middle of the doorway four men in the house, and they came out and caught her, and threatened to kill her unless she would conceal them; and so they gave her the pelf [booty] that she had. and when she came before the [itinerant] justices she denied all this. therefore she has deserved death, but by way of dispensation [the sentence is mitigated, so] let her eyes be torn out. the others are not suspected, therefore let them be under pledges. . william, john's son, appeals walter, son of ralph hose, for that when [william's] lord guy of shawbury and [william] had come from attending the pleas of our lord the king in the county court of shropshire, there came five men in the forest of haughmond and there in the king's peace and wickedly assaulted his lord guy, and so that [walter], who was the fourth among those five, wounded guy and was accessory with the others in force as aid so that guy his lord was killed, and after having wounded his lord he [walter] came to william and held him so that he could not aid his lord; and this he offers to deraign [determine by personal combat] against him as the court shall consider. and walter comes and defends all of it word by word as the court etc. it is considered that there be battle [combat] between them. the battle [combat] is waged. day is given them, at oxford on the morrow of the octave of all saints, and then let them come armed. and ralph [walter's father] gives the king a half-mark that he may have the custody of his son, [for which sum] the pledges are john of knighton and reiner of acton, and he is committed to the custody of ralph hose, reiner of acton, john of knighton, reginald of leigh, adam of mcuklestone, william of bromley, stephen of ackleton, eudo of mark. . robert, son of robert of ferrers, appeals ranulf of tattesworth, for that he came into robert's garden and wickedly and in the king's peace assaulted robert's man roger, and beat and wounded him so that his life was despaired of, and robbed him [roger?] of a cloak, a sword, a bow and arrows: and the said roger offers to prove this by his body as the court shall consider. and ranulf comes and defends the whole of it, word by word, and offers the king one mark of silver that he may have an inquest of lawful knights [to say] whether he be guilty thereof or no. also he says that roger has never until now appealed him of this, and prays that this be allowed in his favor. [ranulf's] offering is accepted. the jurors say that in truth there was some quarrel between robert's gardener, osmund, and some footboys, but ranulf was not there, and they do not suspect him of any robbery or any tort done to robert or to osmund. also the county records that the knights who on robert's complaint were sent to view osmund's wounds found him unwounded and found no one else complaining, and that robert in his plaint spoke of osmund his gardener and never of roger, and that roger never came to the county [court] to make this appeal. therefore it is considered that ranulf be quit, and robert and roger in mercy. pledge for ranulf's mark, philip of draycot. pledges for the amercement, henry of hungerhill, and richard meverell. pledge for roger, the said robert. . one l. is suspected by the jurors of being present when reinild of hemchurch was slain, and of having aided and counseled her death. and she defends. therefore let her purge herself by the ordeal of iron; but as she is ill, the ordeal is respited until her recovery. . andrew of burwarton is suspected by the jurors of the death of one hervey, for that he concealed himself because of that death. therefore let him purge himself by ordeal of water. . godith, formerly wife of walter palmer, appeals richard of stonall, for that he in the king's peace wickedly and by night with his force came to her house and bound her and her husband, and afterwards slew the said walter her husband; and this she offers to prove against him as wife of the slain as the court shall consider. and he defends all of it. and the jurors and the whole neighborhood suspect him of that death. and so it is considered that he purge himself by ordeal of iron for he has elected to bear the iron. . the jurors of oflow hundred say that the bailiffs of tamworth have unjustly taken toll from the knights of staffordshire, to wit, for their oxen and other beasts. and the men of lichfield complain that likewise they have taken toll from them, more especially in staffordshire. and the bailiffs deny that they take anything from the knights in staffordshire. and for that they cannot [be heard to] contradict the jurors, the bailiffs are in mercy. as to the men of lichfield, [the tamworth bailiffs] say that they ought to have, and in king henry's time had, toll of them, more especially of the merchants, as well in staffordshire as in warwickshire. and the burgesses of lichfield offer the king a half-mark for an inquest by the county. and the county records that in king henry's time the men of lichfield did not pay toll in staffordshire. therefore the bailiffs are in mercy. - - - chapter - - - - the times - - 	baron landholders' semi-fortified stone manor houses were improved and extended. many had been licensed to be embattled or crenelated [wall indented at top with shooting spaces]. they were usually quadrangular around a central courtyard. the central and largest room was the hall, where people ate and slept. the hall had a hearth for fire in the center of the room if the hall was one story high. sometimes the lord had a room with a sleeping loft above it. if the hall was more than one story high, it had a fireplace at one end so that the smoke could go up and out the roof. other rooms each had a fireplace. there were small windows around the top story and on the inside of the courtyard. they were usually covered with oiled paper. windows of large houses were of opaque glass supplied by a glassmaking craft. the glass was thick, uneven, distorted, and greenish in color. the walls were plastered. the floor was wood with some carpets. roofs were timbered with horizontal beams. many roofs had tiles supplied by the tile craft, which baked the tiles in kilns or over an open fire. because of the hazard of fire, the kitchen was often a separate building, with a covered way connecting it to the hall. it had one or two open fires in fireplaces, and ovens. sometimes there was a separate room for a dairy. 	furniture included heavy wood armchairs for the lord and lady, stools, benches, trestle tables, chests, and cupboards. outside was an enclosed garden with cabbages, peas, beans, beetroots, onions, garlic, leeks, lettuce, watercress, hops, herbs, nut trees for oil, some flowers, and a fish pond and well. bees were kept for their honey. 	nobles, doctors, and attorneys wore tunics to the ankle and an over-tunic almost as long, which was lined with fur and had long sleeves. a hood was attached to it. a man's hair was short and curled, with bangs on the forehead. the tunic of merchants and middle class men reached to the calf. the laborer wore a tunic that reached to the knee, cloth stockings, and shoes of heavy felt, cloth, or perhaps leather. ladies wore a full-length tunic with moderate fullness in the skirt, and a low belt, and tight sleeves. a lady's hair was concealed by a round hat tied on the top of her head. over her tunic, she wore a cloak. monks and nuns wore long black robes with hoods. 	the barons now managed and developed their estates to be as productive as possible, often using the successful management techniques of church estates. they kept records of their fields, tenants, and services owed by each tenant, and duties of the manor officers, such as supervision of the ploughing and harrowing. annually, the manor's profit or loss for the year was calculated. most manors were self-supporting except that iron for tools and horseshoes and salt for curing usually had to be obtained elsewhere. wine, tar, canvas and millstones were imports from other countries and bought at fairs, as was fish, furs, spices, and silks. sheep were kept in such large numbers that they were susceptible to a new disease "scab". every great household was bound to give alms. 	as feudalism became less military and less rough, daughters were permitted to inherit fiefs. it became customary to divide the property of a deceased man without a son equally among his daughters. lords were receiving homage from all the daughters and thereby acquiring marriage rights over all of them. also, if a son predeceased his father but left a child, that child would succeed to the father's land in the same way that the deceased would have. 	manors averaged about ten miles distance between each other, the land in between being unused and called "wasteland". statutes after a period of civil war proscribing the retaking of land discouraged the enclosure of waste land. 	husbandry land held in villeinage was inherited according to the custom of its manor as administered in the lord�s manorial court. (the royal courts had jurisdiction of land held in socage. i.e. free tenure.) the heir could be the oldest son, the youngest son, a son chosen by the father to succeed him, or divided among the sons. if there were no sons, one of the daughters inherited the land or it was divided among all the daughters. if there were no heirs, the land went back to the lord. land could not be sold or alienated so that the heir did not inherit, without the consent of the lord. manorial custom also determined the manner of descent of goods and chattels. a common custom for a villein was that his best beast go to his lord as heriot and his second best beast go to the parish priest as mortuary. then, after debts and burial expenses had been paid, a number of tools and utensils needed for husbandry and housekeeping went with the land to its heir. these were the �heirlooms�, �loom� in old english meaning tool. this usually included, for a holding of more than acres, a coulter, a plowshare, a yoke, a cart, an axe, a cauldron, a pan, a dish, and a cask. finally, the remaining goods and chattels went one-third to the widow, one-third to his children except for the heir to the land, and one-third according to the deceased�s last will and testament. a son might take his share before the death of his father in order to go out into the world and seek his fortune, for instance in the church or military, upon which event the father had to pay his lord a fine for his son permanently leaving the manor. many country boys became bound apprentices in nearby boroughs or farm laborers. others married heiresses of land. by the custom of �curtesy of the nation�, he held this land for his lifetime, even if his wife predeceased him. if a man remained on the family land, he had no right to marry. often, there were agreements over land holdings that were recorded in the manor books. for instance, it was common for a father or mother to hand his or her holding over to the heir in exchange for sustenance in old age. an heir usually did not marry until after receiving his land. manorial custom determined whether a father�s consent was necessary for a son or daughter to marry, the nature of any agreement (�trothplight�) between the families as to lands and goods brought to the marriage, the amount of her marriage portion, and the son�s endowment (her �dower�) of lands and goods promised to the bride at the church door that would provide for her support after his death. if dower was not specified, it was understood to be one-third of all lands and tenements. at the next hallmote, if manorial custom required it, the son would pay a fine to his lord for entry onto the land and for license to marry. from , priests taught that betrothal and consummation constituted irrevocable marriage. 	some villeins bought out their servitude by paying a substitute to do his service or paying his lord a firm (from hence, the words farm and farmer) sum to hire an agricultural laborer in his place. this made it possible for a farm laborer to till one continuous piece of land instead of scattered strips. 	looms were now mounted with two bars. women did embroidery. the clothing of most people was made at home, even sandals. the village tanner and bootmaker supplied long pieces of soft leather for more protection than sandals. tanning mills replaced some hand labor. the professional hunter of wolves, lynx, or otters supplied head coverings. every village had a smith and possibly a carpenter for construction of ploughs and carts. the smith obtained coal from coal fields for heating the metal he worked. horse harnesses were homemade from hair and hemp. there were watermills and/or windmills for grinding grain, for malt, and/or for fulling cloth. the position of the sails of the windmills was changed by manual labor when the direction of the wind changed. 	most men wore a knife because of the prevalence of murder and robbery. it was an every day event for a murderer to flee to sanctuary in a church, which would then be surrounded by his pursuers while the coroner was summoned. usually, the fugitive would confess, pay compensation, and agree to leave the nation permanently. 	county courts were the center of decision-making regarding judicial, fiscal, military, and general administrative matters. the writs for the conservation of the peace, directing the taking of the oath, the pursuit of malefactors, and the observance of watch and ward, were proclaimed in full county court; attachments were made in obedience to them in the county court. the county offices were: sheriff, coroner, escheator, and constable or bailiff. there were sheriffs for counties. the sheriff was usually a substantial landholder and a knight who had been prominent in the local court. he usually had a castle in which he kept persons he arrested. he no longer bought his office and collected certain rents for himself, but was a salaried political appointee of the king. he employed a deputy or undersheriff, who was an attorney, and clerks. if there was civil commotion or contempt of royal authority, the sheriff of the county had power to raise a posse of armed men to restore order. the coroner watched the interests of the crown and had duties in sudden deaths, treasure trove, and shipwreck cases. there were about five coroners per county and they served for a number of years. they were chosen by the county court. the escheator was appointed annually by the treasurer to administer the crown's rights in feudal land, which until had been the responsibility of the sheriff. he was usually chosen from the local gentry. the constable and bailiff operated at the hundred and parish [the geographical area of a church�s members] level to detect crime and keep the peace. they assisted sheriffs and justices of the peace, organized watches for criminals and vagrants at the village level, and raised the hue and cry along the highway and from village to village in pursuit of offenders who had committed felony or robbery. the constables also kept the royal castles; they recruited, fed, and commanded the castle garrison. 	county knights served sheriffs, coroners, escheators, and justices on special royal commissions of gaol-delivery. they sat in judgment in the county court at its monthly meetings, attended the two great annual assemblies when the lord, knights and freeholders of the county gathered to meet the itinerant justices who came escorted by the sheriff and weapon bearers. they served on the committees which reviewed the presentments of the hundreds and village, and carried the record of the county court to westminster when summoned there by the kings' justices. they served on the grand assize. as elected representatives of their fellow knights of the county, they assessed any taxes due from each hundred. election might be by nomination by the sheriff from a fixed list, by choice, or in rotation. they investigated and reported on local abuses and grievances. the king's justices and council often called on them to answer questions put to them on oath. in the villages, humbler freeholders and sokemen were elected to assess the village taxes. six villeins answered for the village's offenses before the royal itinerant justice. 	reading and writing in the english language was taught. the use of english ceased to be a mark of vulgarity. in the first governmental document was issued in english as well as in latin and french, and later latin started falling into disuse. boys of noblemen were taught reading, writing, latin, a musical instrument, athletics, riding, and gentlemanly conduct. girls were taught reading, writing, music, dancing, and perhaps household nursing and first aid, spinning, embroidery, and gardening. girls of high social position were also taught riding and hawking. grammar schools taught, in latin, grammar, dialectic (ascertaining word meaning by looking at its origin, its sound (e.g. soft or harsh), its power (e.g. robust and strong sound), its inflection, and its order; and avoiding obscurity and ambiguity in statements), and rhetoric [art of public speaking, oratory, and debate]. the teacher possessed the only complete copy of the latin text, and most of the school work was done orally. though books were few and precious, the students read several latin works. girls and boys of high social position usually had private teachers for grammar school, while boys of lower classes were sponsored at grammar schools such as those at oxford. discipline was maintained by the birch or rod. 	there was no examination for admission as an undergraduate to oxford, but a knowledge of latin with some skill in speaking latin was a necessary background. the students came from all backgrounds. some had their expenses paid by their parents, while others had the patronage of a churchman, a religious house, or a wealthy layman. they studied the "liberal arts", which derived its name from "liber" or free, because they were for the free men of rome rather than for the economic purposes of those who had to work. the works of greek authors such as aristotle were now available; the european monk thomas aquinas had edited aristotle's works to reconcile them to church doctrine. he opined that man's intellectual use of reason did not conflict with the religious belief that revelation came only from god, because reason was given to man by god. he shared aristotle's belief that the earth was a sphere, and that the celestial bodies moved around it in perfect circles. latin learning had already been absorbed without detriment to the church. 	a student at oxford would become a master after graduating from a seven year course of study of the seven liberal arts: [grammar, rhetoric (the source of law), aristotelian logic (which differentiates the true from the false), arithmetic, including fractions and ratios, (the foundation of order), geometry, including methods of finding the length of lines, the area of surfaces, and the volume of solids, (the science of measurement), astronomy (the most noble of the sciences because it is connected with divinity and theology), music and also aristotle's philosophy of physics, metaphysics, and ethics; and then lecturing and leading disputations for two years. he also had to write a thesis on some chosen subject and defend it against the faculty. a master's degree gave one the right to teach. further study for four years led to a doctorate in one of the professions: theology and canon or civil law. 	there were about , students in oxford. they drank, played dice, quarreled a lot and begged at street corners. there were mob fights between students from the north and students from the south and between students and townsmen. but when the mayor of oxford hanged two students accused of being involved in the killing of a townswoman, many masters and students left for cambridge. in , a charter created the office of chancellor of the university at oxford. he was responsible for law and order and, through his court, could fine, imprison, and excommunicate offenders and expel undesirables such as prostitutes from the town. he had authority over all crimes involving scholars, except murder and mayhem. the chancellor summoned and presided over meetings of the masters and came to be elected by indirect vote by the masters who had schools, usually no more than a room or hall with a central hearth which was hired for lectures. students paid for meals there. corners of the room were often partitioned off for private study. at night, some students slept on the straw on the floor. six hours of sleep were considered sufficient. in , the king ordered that every student must have his name on the roll of a master and the masters had to keep a list of those attending his lectures. 	in the friars established their chief school at oxford. they were bound by oaths of poverty, obedience, and chastity, but were not confined within the walls of a monastery. they walked barefoot from place to lace preaching. they begged for their food and lodgings. they replaced monks, who had become self-indulgent, as the most vital spiritual force among the people. 	the first college was founded in by walter de merton, former chancellor to the king, at oxford. a college had the living arrangements of a hall, with the addition of monastic-type rules. a warden and about scholars lived and ate meals together in the college buildings. merton college's founding documents provided that: [ ] "the house shall be called the house of the scholars of merton, and it shall be the residence of the scholars forever. [ ] there shall be a constant succession of scholars devoted to the study of letters, who shall be bound to employ themselves in the study of arts or philosophy, the canons or theology. let there also be one member of the collegiate body, who shall be a grammarian, and must entirely devote himself to the study of grammar; let him have the care of the students in grammar, and to him also let the more advanced have recourse without a blush, when doubts arise in their faculty. [ ] there is to be one person in every chamber, where scholars are resident, of more mature age than the others, who is to make his report of their morals and advancement in learning to the warden [ ] the scholars who are appointed to the duty of studying in the house are to have a common table, and a dress as nearly alike as possible. [ ] the members of the college must all be present together, as far as their leisure serves, at the canonical hours and celebration of masses on holy and other days. [ ] the scholars are to have a reader at meals, and in eating together they are to observe silence, and to listen to what is read. in their chambers, they must abstain from noise and interruption of their fellows; and when they speak they must use the latin language. [ ] a scrutiny shall be held in the house by the warden and the seniors, and all the scholars there present, three times a year; a diligent inquiry is to be instituted into the life, conduct, morals, and progress in learning, of each and all; and what requires correction then is to be corrected, and excesses are to be visited with condign punishment. . ." 	educated men (and those of the s through the s), believed that the earth was the center of the universe and that it was surrounded by a giant spherical dome on which the stars were placed. the sun and moon and planets were each on a sphere around the earth that was responsible for their movements. the origin of the word "planet" meant "wanderer" because the motion of the planets changed in direction and speed. astrology explained how the position of the stars and planets influenced man and other earthly things. for instance, the position of the stars at a person's birth determined his character. the angle and therefore potency of the sun's rays influenced climate, temperament, and changes of mortal life such as disease and revolutions. unusual events such as the proximity of two planets, a comet, an eclipse, a meteor, or a nova were of great significance. a star often was thought to presage the birth of a great man or a hero. there was a propitious time to have a marriage, go on a journey, make war, and take herbal medicine or be bled by leeches, the latter of which was accompanied by religious ceremony. cure was by god, with medical practitioners only relieving suffering. but there were medical interventions such as pressure and binding were applied to bleeding. arrow and sword wounds to the skin or to any protruding intestine were washed with warm water and sewn up with needle and silk thread. ribs were spread apart by a wedge to remove arrow heads. fractured bones were splinted or encased in plaster. dislocations were remedied. hernias were trussed. bladder stones blocking urination were pushed back into the bladder or removed through an artificial opening in the bladder. surgery was performed by butchers, blacksmiths, and barbers. 	roger bacon, an oxford master, began the science of physics. he read arab writers on the source of light rays being from the object seen, the nature of refraction and reflection of light, and the properties of lenses. he studied the radiation of light and heat. he studied angles of reflection in plane, spherical, cylindrical, and conical mirrors, in both their concave and convex aspects. he did experiments in refraction in different media, e.g. air, water, and glass, and knew that the human cornea refracted light, and that the human eye lens was doubly convex. he comprehended the magnifying power of convex lenses and conceptualized the combination of lenses which would increase the power of vision by magnification. he realized that rays of light pass so much faster than those of sound or smell that the time is imperceptible to humans. he knew that rays of heat and sound penetrate all matter without our awareness and that opaque bodies offered resistance to passage of light rays. he knew the power of parabolic concave mirrors to cause parallel rays to converge after reflection to a focus and knew that a mirror could be produced that would start a fire at a fixed distance. these insights made it possible for jewelers and weavers to use lenses to view their work instead of glass globes full of water, which distorted all but the center of the image: "spherical aberration". the lens, whose opposite surfaces were sections of spheres, took the place of the central parts of the globe over the image. 	he knew about magnetic poles attracting, if different and repelling, if the same, and the relation of magnets' poles to those of the heavens and earth. he calculated the circumference of the world and the latitude and longitude of terrestrial positions. he foresaw sailing around the world. he studied the planetary motions and astronomical tables to forecast future events. he did calculations on days in a month and days in a year which later contributed to the legal definition of a leap year. his explanation of a rainbow as a result of natural laws was contrary to theological opinion that a rainbow was placed in the heavens to assure mankind that there was not to be another universal deluge. 	bacon began the science of chemistry when he took the empirical knowledge as to a few metals and their oxides and some of the principal alkalis, acids, and salts to the abstract level of metals as compound bodies the elements of which might be separated and recomposed and changed among the states of solid, liquid, and gas. when he studied man's physical nature, health, and disease, he opined that the usefulness of a talisman was not to bring about a physical change, but to bring the patient into a frame of mind more conducive to physical healing. he urged that there be experiments in chemistry to develop medicinal drugs. 	he studied different kinds of plants and the differences between arable land, forest land, pasture land, and garden land. 	bacon was an extreme proponent of the inductive method of finding truths, e.g. by categorizing all available facts on a certain subject to ascertain the natural laws governing it. his contribution to the development of science was abstracting the method of experiment from the concrete problem to see its bearing and importance as a universal method of research. he advocated changing education to include studies of the natural world using observation, exact measurement, and experiments. 	the making and selling of goods diverged e.g. as the cloth merchant severed from the tailor and the leather merchant severed from the butcher. these craftsmen formed themselves into guilds, which sought charters to require all craftsmen to belong to the guild of their craft, to have legal control of the craft work, and be able to expel any craftsman for disobedience. these guilds were composed of master craftsmen, their journeymen, and apprentices. these guilds determined the wages and working conditions of the craftsmen and petitioned the borough authorities for ordinances restraining trade, for instance by controlling the admission of outsiders to the craft, preventing foreigners from selling in the town except at fairs, limiting purchases of raw materials to suppliers within the town, forbidding night work, restricting the number of apprentices to each master craftsmen, and requiring a minimum number of years for apprenticeships. in return, these guilds assured quality control. in some boroughs, they did work for the town, such as maintaining certain defensive towers or walls of the town near their respective wards. in some boroughs, fines for infractions of these regulations were split between the guild and the government. 	in some towns, the merchant guilds attempted to directly regulate the craft guilds. crafts fought each other. there was a street battle with much bloodshed between the goldsmiths and the parmenters and between the tailors and the cordwainers in in london. there was also a major fight between the goldsmiths and the tailors in . the parish clerks' company was chartered in . 	the citizens of london had a common seal for the city. london merchants traveled throughout the nation with goods to sell exempt from tolls. most of the london aldermen were woolmongers, vintners, skinners, and grocers by turns or carried on all these branches of commerce at once. jews were allowed to make loans with interest up to d. a week for s. lent. there are three inns in london. inns typically had narrow facades, large courtyards, lodging and refreshment for the well-off, warehousing and marketing facilities for merchants, and stabling and repairs for wagons. caregiving infirmaries such as "bethlehem hospital" were established in london. one was a lunatic infirmary founded by the sheriff of london. only tiles were used for roofing in london, because wood shingles were fire hazards and fires in london had been frequent. some areas near london are disclaimed by the king to be royal forest land, so all citizens could hunt there and till their land there without interference by the royal foresters. the sheriff's court in london lost its old importance and handled mainly trespass and debt cases, while important cases went to the hustings, which was presided over by the mayor with the sheriffs and aldermen in attendance. from the early s, the mayor's court took on the work which the weekly husting could not manage. this consisted mostly of assault and robbery cases. murder and manslaughter cases were left to the royal courts. 	london aldermen were elected by the citizens of their respective wards in wardmotes, in which was also arranged the watch, protection against fire, and probably also assessment of the taxes within the ward. there was much effort by the commoners to influence the governance of the city. in they forced their way into the townmote and by this brute show of strength, which threatened riot, they made their own candidate mayor. subsequent elections were tumultuous. 	the tower of london now had outer walls of fortress buildings surrounded by a wide and deep moat, over which was one stone causeway and wooden drawbridge. within this was an inner curtain wall with twelve towers and an inner moat. the palace within was a principal residence of english monarchs, whose retinue was extensive, including the chief officers of state: lord high steward, lord high chancellor, lord high treasurer, lord great chamberlain, lord high constable, keeper of the seals, and the king's marshall; lesser officials such as the chamberlain of the candles, keeper of the tents, master steward of the larder, usher of the spithouse, marshall of the trumpets, keeper of the books, keeper of the dishes and of the cups, and steward of the buttery; and numbers of cat hunters, wolf catchers, clerks and limners, carters, water carriers, washerwomen and laundresses, chaplains, lawyers, archers, huntsmen, hornblowers, barbers, minstrels, guards and servitors, and bakers and confectioners. the fortress also contained a garrison, armory, chapels, stables, forge, wardrobe for a tailor's workroom and secure storage of valuable clothes, silver plate, and expensive imports such as sugar, rice, almonds, dried fruits, cinnamon, saffron, ginger, galingale, zedoary, pepper, nutmeg, and mace. there was a kitchen with courtyard for cattle, poultry, and pigs; dairy, pigeon loft, brewery, beehives, fruit stores, gardens for vegetables and herbs; and sheds for gardeners. there was also a mint, which minted a gold penny worth s. of silver, a jewel house, and a menagerie (with leopards, lions, a bear, and an elephant). the fortress also served as a state prison. most prisoners there had opposed the royal will; they were usually permitted to live in quarters in the same style they were used to, including servants and visits by family and friends. but occasionally prisoners were confined in irons in dark and damp dungeons. 	the king's family, immediate circle, and most distinguished guests dined elegantly in the great hall at midday. they would first wash their hands in hot water poured by servants over bowls. the table had silver plate, silver spoons, and cups of horn, crystal, maple wood, or silver laid on a white cloth. each guest brought his own knife in a leather sheath attached to a belt or girdle. a procession of servitors brought the many dishes to which the gentlemen helped the ladies and the young their seniors by placing the food in scooped-out half-loaves of bread that were afterwards distributed to the poor. a wine cup was handed around the table. in the winter after dinner, there would often be games of chess or dice or songs of minstrels, and sometimes dancing, juggler or acrobat displays, or storytelling by a minstrel. in the summer there were outdoor games and tournaments. hunting with hounds or hawks was popular with both ladies and gentlemen. the king would go to bed on a feather mattress with fur coverlet that was surrounded by linen hangings. his grooms would sleep on trundle beds in the same room. the queen likewise shared her bedchamber with several of her ladies sleeping on trundle beds. breakfast was comprised of a piece of bread and a cup of wine taken after the daily morning mass in one of the chapels. sometimes a round and deep tub was brought into the bedchamber by servants who poured hot water onto the bather in the tub. baths were often taken in the times of henry iii, who believed in cleanliness and sanitation. henry iii was also noted for his luxurious tastes. he had a linen table cloth, goblets of mounted cocoa-nut, a glass cup set in crystal, and silk and velvet mattresses, cushions, and bolster. he had many rooms painted with gold stars, green and red lions, and painted flowers. to his sister on her marriage, he gave goldsmith's work, a chess table, chessmen in an ivory box, silver pans and cooking vessels, robes of cloth of gold, embroidered robes, robes of scarlet, blue, and green fine linen, genoese cloth of gold, two napkins, and thirteen towels. 	in the king's grant to oxford, the mayor and good men were authorized to take weekly for three years / d. on every cart entering the town loaded with goods, if it was from the county, or d. if it came from outside the county; / d. for every horse load, except for brushwood; / d. on every horse, mare, ox, or cow brought to sell; and / d. for every five sheep, goats, or pigs. 	english ships had one mast with a square sail. the hulls were made of planks overlapping each other. there was a high fore castle [tower] on the bow, a top castle on the mast, and a high stern castle from which to shoot arrows down on other ships. there were no rowing oars, but steering was still by an oar on the starboard side of the ship. the usual carrying capacity was tuns [big casks of wine each with about gallons]. on the coasts there were lights and beacons. harbors at river mouths were kept from silting up. ships were loaded from piers. the construction of london bridge had just been finished. bricks began to be imported for building. about % of the population lived in towns. 	churches had stained glass windows. 	newcastle-on-tyne received these new rights: . and that they shall justly have their lands and tenures and mortgages and debts, whoever owes them to them. . concerning their lands and tenures within the town, right shall be done to them according to the custom of the city winton. . and of all their debts which are lent in newcastle-on-tyne and of mortgages there made, pleas shall be held at newcastle-on-tyne. . none of them shall plead outside the walls of the city of newcastle-on-tyne on any plea, except pleas of tenures outside the city and except the minters and my ministers. . that none of them be distrained by any without the said city for the repayment of any debt to any person for which he is not capital debtor or surety. . that the burgesses shall be quit of toll and lastage [duty on a ship's cargo] and pontage [tax for repairing bridges] and have passage back and forth. . moreover, for the improvement of the city, i have granted them that they shall be quit of year's gift and of scotale [pressure to buy ale at the sheriff's tavern], so that my sheriff of newcastle-on-tyne or any other minister shall not make a scotale. . and whosoever shall seek that city with his merchandise, whether foreigners or others, of whatever place they may be, they may come sojourn and depart in my safe peace, on paying the due customs and debts, and any impediment to these rights is prohibited. . we have granted them also a merchant guild. . and that none of them [in the merchant guild] shall fight by combat. 	the king no longer lives on his own from income from his own lands, but takes money from the treasury. a tax of a percentage of / th of personal property was levied in for a war, in return for which the king signed the magna carta. it was to be paid by all tenants-in-chief, men of the royal domain, burgesses of the boroughs and cities, clerical tenants-in-chief, and religious houses. the percentage tax came to be used frequently and ranged from about / th to / th. in , this tax was bifurcated into one percentage amount for the rural districts and a higher one for urban districts, because the burgesses had greater wealth and much of it was hard to uncover because it was in the possession of customers and debtors. it was usually / th for towns and royal domains and / th in the country. this amount of money collected by this tax increased with the wealth of the country. 	the king takes custody of lands of lunatics and idiots, as well as escheats of land falling by descent to aliens. henry iii took s. from his tenants-in-chief for the marriage of his daughter, and two pounds for the knighting of his son. 	by , the king was hiring soldiers at s. per day for knights, and d. a day for less heavily armed soldiers, and d. a day for crossbowmen. some castle-guard was done by watchmen hired at d. a day. ships were impressed when needed. sometimes private ships were authorized to ravage the french coasts and take what spoil they could. 	while king henry iii was underage, there was much controversy as to who should be his ministers of state, such as justiciar, chancellor, and treasurer. this led to the concept that they should not be chosen by the king alone. after he came of age, elected men from the baronage fought to have meetings and his small council in several conferences called great councils or parliaments (from french "to speak the mind") to discuss the levying of taxes and the solution of difficult legal cases, the implementation of the magna carta, the appointment of the king's ministers and sheriffs, and the receipt and consideration of petitions. the barons paid / th tax on their moveable property to have three barons of their choice added to the council. statutes were enacted. landholders were given the duty of electing four of their members in every county to ensure that the sheriff observed the law and to report his misdemeanors to the justiciar. they were also given the duty of electing four men from the county from whom the exchequer was to choose the sheriff of the year. earl montfort and certain barons forced king henry iii to summon a great council or parliament in in which the common people were represented officially by two knights from every county, two burgesses from every borough, and two representatives from each major port. so the king's permanent small council became a separate body from parliament and its members took a specific councilor's oath in to give faithful counsel, to keep secrecy, to prevent alienation of ancient demesne, to procure justice for the rich and poor, to allow justice to be done on themselves and their friends, to abstain from gifts and misuse of patronage and influence, and to be faithful to the queen and to the heir. - the law - 	the barons forced successive kings to sign the magna carta until it became the law of the land. it became the first statute of the official statute book. its provisions express the principle that a king is bound by the law and is not above it. however, there is no redress if the king breaches the law. 	the magna carta was issued by john in . a revised version was issued by henry iii in with the forest clauses separated out into a forest charter. the two versions are replicated together, with the formatting of each indicated in the titles below. {magna carta - } magna carta - & magna carta - {john, by the grace of god, king of england, lord of ireland, duke of normandy and aquitaine, and count of anjou: to the archbishops, bishops, abbots, earls, barons, justiciaries, foresters, sheriffs, reeves, ministers, and all bailiffs and others, his faithful subjects, greeting. know ye that in the presence of god, and for the health of our soul, and the souls of our ancestors and heirs, to the honor of god, and the exaltation of holy church, and amendment of our realm, by the advice of our reverend fathers, stephen, archbishop of canterbury, primate of all england, and cardinal of the holy roman church; henry, archbishop of dublin; william of london, peter of winchester, jocelin of bath and glastonbury, hugh of lincoln, walter of worcester, william of coventry, and benedict of rochester, bishops; master pandulph, the pope's subdeacon and familiar; brother aymeric, master of the knights of the temple in england; and the noble persons, william marshall, earl of pembroke; william, earl of salisbury; william, earl of warren; william, earl of arundel; alan de galloway, constable of scotland; warin fitz-gerald, peter fitz-herbert, hubert de burgh, seneshal of poitou, hugh de neville, matthew fitz-herbert, thomas basset, alan basset, philip daubeny, robert de roppelay, john marshall, john fitz-hugh, and others, our liegemen:} henry by the grace of god, king of england, lord of ireland, duke of normandy and guyan and earl of anjou, to all archbishops, bishops, abbots, priors, earls, barons, sheriffs, provosts, officers and to all bailiffs and other our faithful subjects which shall see this present charter, greeting. know ye that we, unto the honor of almighty god, and for the salvation of the souls of our progenitors and successors kings of england, to the advancement of holy church and amendment of our realm, of our mere and free will, have given and granted to all archbishops, bishops, abbots, priors, earls, barons, and to all free men of this our realm, these liberties following, to be kept in our kingdom of england forever. [i. a confirmation of liberties] first, we have granted to god, and by this our present charter confirmed, for us and our heirs forever, that the english church shall be free and enjoy her whole rights and her liberties inviolable. {and that we will this so to be observed appears from the fact that we of our own free will, before the outbreak of the dissensions between us and our barons, granted, confirmed, and procured to be confirmed by pope innocent iii the freedom of elections, which is considered most important and necessary to the english church, which charter we will both keep ourself and will it to be kept with good faith by our heirs forever.} we have also granted to all the free men of our realm, for us and our heirs forever, all the liberties underwritten, to have and to hold to them and their heirs of us and our heirs. [ii. the relief of the king's tenant of full age] if any of our earls, barons, or others who hold of us in chief by knight's service dies, and at the time of his death his heir is of full age and owes to us a relief, he shall have his inheritance on payment of [no more than] the old relief; to wit, the heir or heirs of an earl, for an entire earldom, pounds [ , s.]; the heir or heirs of a baron of an entire barony, { pounds} marks [ pounds or s.]; the heir or heirs of an entire knight's fee, s. at the most [about / of a knight's annual income]; and he who owes less shall give less, according to the old custom of fees. [iii. the wardship of an heir within age. the heir a knight] but if the heir of such be under age, his lord shall not have the ward of him, nor of his land, before that he has taken of him homage. if, however, any such heir is under age and in ward, he shall have his inheritance without relief or fine when he comes of age, that is, twenty-one years of age. so that if such an heir not of age is made a knight, yet nevertheless his land shall remain in the keeping of his lord unto the aforesaid term. [iv. no waste shall be made by a guardian in ward's lands] the guardian of the land of any heir thus under age shall take therefrom only reasonable issues, customs, and services, without destruction or waste of men or goods. and if we commit the custody of any such land to the sheriff or any other person answerable to us for the issues of the same land, and he commits destruction or waste, we will take an amends from him and recompense therefore. and the land shall be committed to two lawful and discreet men of that fee, who shall be answerable for the issues of the same land to us or to whomsoever we shall have assigned them. and if we give or sell the custody of any such land to any man, and he commits destruction or waste, he shall lose the custody, which shall be committed to two lawful and discreet men of that fee, who shall, in like manner, be answerable to us as has been aforesaid. [v. guardians shall maintain the inheritance of their wards and of bishopricks, etc.] the guardian, so long as he shall have the custody of the land, shall keep up and maintain the houses, parks, fishponds, pools, mills, and other things pertaining thereto, out of the issues of the same, and shall restore to the heir when he comes of age, all his land stocked with {ploughs and tillage, according as the season may require and the issues of the land can reasonably bear} ploughs and all other things, at the least as he received it. all these things shall be observed in the custodies of vacant archbishopricks, bishopricks, abbeys, priories, churches, and dignities, which appertain to us; except this, that such custody shall not be sold. [vi. heirs shall be married without disparagement] heirs shall be married without loss of station. {and the marriage shall be made known to the heir's nearest of kin before it is agreed.} [vii. a widow shall have her marriage, inheritance, and querentine (period of forty days during which the widow has a privilege of remaining in the mansion house of which her husband died seized). the king's widow, etc.] a widow, after the death of her husband, shall immediately and without difficulty have her marriage portion [property given to her by her father] and inheritance. she shall not give anything for her marriage portion, dower, or inheritance which she and her husband held on the day of his death, and she may remain in her husband's house for forty days after his death, within which time her dower shall be assigned to her. if that house is a castle and she leaves the castle, then a competent house shall forthwith be provided for her, in which she may honestly dwell until her dower is assigned to her as aforesaid; and in the meantime her reasonable estovers of the common [necessaries or supplies such as wood], etc. no widow shall be compelled [by penalty of fine] to marry so long as she has a mind to live without a husband, provided, however, that she gives security that she will not marry without our assent, if she holds of us, or that of the lord of whom she holds, if she holds of another. [viii. how sureties shall be charged to the king] neither we nor our bailiffs shall seize any land or rent for any debt as long as the debtor's goods and chattels suffice to pay the debt and the debtor himself is ready to satisfy therefore. nor shall the debtor's sureties be distrained as long as the debtor is able to pay the debt. if the debtor fails to pay, not having the means to pay, or will not pay although able to pay, then the sureties shall answer the debt. and, if they desire, they shall hold the debtor's lands and rents until they have received satisfaction of that which they had paid for him, unless the debtor can show that he has discharged his obligation to them. {if anyone who has borrowed from the jews any sum of money, great or small, dies before the debt has been paid, the heir shall pay no interest on the debt as long as he remains under age, of whomsoever he may hold. if the debt falls into our hands, we will take only the principal sum named in the bond.} {and if any man dies indebted to the jews, his wife shall have her dower and pay nothing of that debt; if the deceased leaves children under age, they shall have necessaries provided for them in keeping with the estate of the deceased, and the debt shall be paid out of the residue, saving the service due to the deceased's feudal lords. so shall it be done with regard to debts owed persons other than jews.} [ix. the liberties of london and other cities and towns confirmed] the city of london shall have all her old liberties and free customs, both by land and water. moreover, we will and grant that all other cities, boroughs, towns, and ports shall have all their liberties and free customs. {no scutage or aid shall be imposed in our realm unless by common counsel thereof, except to ransom our person, make our eldest son a knight, and once to marry our eldest daughter, and for these only a reasonable aid shall be levied. so shall it be with regard to aids from the city of london.} {to obtain the common counsel of the realm concerning the assessment of aids (other than in the three aforesaid cases) or of scutage, we will have the archbishops, bishops, abbots, earls, and great barons individually summoned by our letters; we will also have our sheriffs and bailiffs summon generally all those who hold lands directly of us, to meet on a fixed day, but with at least forty days' notice, and at a fixed place. in all such letters of summons, we will explain the reason therefor. after summons has thus been made, the business shall proceed on the day appointed, according to the advice of those who are present, even though not all the persons summoned have come.} {we will not in the future grant permission to any man to levy an aid upon his free men, except to ransom his person, make his eldest son a knight, and once to marry his eldest daughter, and on each of these occasions only a reasonable aid shall be levied.} [x. none shall distrain for more service than is due.] no man shall be compelled to perform more service for a knight's fee nor any freehold than is due therefrom. [xi. common pleas shall not follow the king's court] people who have common pleas shall not follow our court traveling about the realm, but shall be heard in some certain place. [xii. where and before whom assizes shall be taken. adjournment for difficulty] {land assizes of novel disseisin, mort d'ancestor and darrein presentment shall be heard only in the county where the property is situated, and in this manner: we or, if we are not in the realm, our chief justiciary, shall send two justiciaries through each county four times a year [to clear and prevent backlog], and they, together with four knights elected out of each county by the people thereof, shall hold the said assizes in the county court, on the day and in the place where that court meets.} assizes of novel disseisin, mort d'ancestor shall be heard only in the county where the property is situated, and in this manner: we, or if we are not in the realm, our chief justiciary, shall send justiciaries through each county once a year, and they together with knights of that county shall hold the said assizes in the county. {if the said assizes cannot be held on the day appointed, so many of the knights and freeholders as were present on that day shall remain as will be sufficient for the administration of justice, according to the amount of business to be done.} and those things that at the coming of our foresaid justiciaries, being sent to take those assizes in the counties, cannot be determined, shall be ended by them in some other place in their circuit; and those things which for difficulty of some articles cannot be determined by them, shall be referred to our justices of the bench and there shall be ended. [xiii. assizes of darrein presentment] assizes of darrein presentment shall always be taken before our justices of the bench and there shall be determined. [xiv. how men of all sorts shall be amerced and by whom] a freeman shall be amerced [made to pay a fine to the king] for a small offense only according to the degree thereof, and for a serious offense according to its magnitude, saving his position and livelihood; and in like manner a merchant, saving his trade and merchandise, and a villein saving his tillage, if they should fall under our mercy. none of these amercements shall be imposed except by the oath of honest men of the neighborhood. earls and barons shall be amerced only by their peers, and only in accordance with the seriousness of the offense. {no amercement shall be imposed upon a cleric's lay tenement, except in the manner of the other persons aforesaid, and without regard to the value of his ecclesiastical benefice.} no man of the church shall be amerced except in accordance with the seriousness of the offense and after his lay tenement, but not after the quantity of his spiritual benefice. [xv. making of bridges and banks] no town or freeman shall be compelled to build bridges over rivers or banks except those bound by old custom and law to do so. [xvi. defending of banks] no banks [land near a river] shall be defended [used by the king alone, e.g. for hunting], from henceforth, but such as were in defense in the time of king henry [ii] our grandfather, by the same places and in the same bounds as in his time. [xvii. holding pleas of the crown] no sheriff, constable, coroners, or other of our bailiffs shall hold pleas of our crown [but only justiciars, to prevent disparity of punishments and corruption]. {all counties, hundreds, wapentakes, and tithings (except our demesne manors) shall remain at the old rents, without any increase.} [xviii. the king's debtor dying, the king shall be first paid] if anyone holding a lay fee of us dies, and our sheriff or our bailiff show our letters patent [public letter from a sovereign or one in authority] of summons for a debt due to us from the deceased, it shall be lawful for such sheriff or bailiff to attach and list the goods and chattels of the deceased found in the lay fee to the value of that debt, by the sight and testimony of lawful men [to prevent taking too much], so that nothing thereof shall be removed therefrom until our whole debt is paid; then the residue shall be given up to the executors to carry out the will of the deceased. if there is no debt due from him to us, all his chattels shall remain the property of the deceased, saving to his wife and children their reasonable shares. {if any freeman dies intestate, his chattels shall be distributed by his nearest kinfolk and friends, under supervision of the church, saving to each creditor the debts owed him by the deceased.} [xix. purveyance for a castle] no constable or other of our bailiffs shall take grain or other chattels of any man without immediate payment, unless the seller voluntarily consents to postponement of payment. this applies if the man is not of the town where the castle is. but if the man is of the same town as where the castle is, the price shall be paid to him within days. [xx. doing of castle-guard] no constable shall compel any knight to give money for keeping of his castle in lieu of castle-guard when the knight is willing to perform it in person or, if reasonable cause prevents him from performing it himself, by some other fit man. further, if we lead or send him into military service, he shall be excused from castle-guard for the time he remains in service by our command. [xxi. taking of horses, carts, and wood] no sheriff or bailiff of ours, or any other man, shall take horses or carts of any freeman for carriage without the owner's consent. he shall pay the old price, that is, for carriage with two horses, d. a day; for three horses, d. a day. no demesne cart of any spiritual person or knight or any lord shall be taken by our bailiffs. neither we nor our bailiffs will take another man's wood for our castles or for other of our necessaries without the owner's consent. [xxii. how long felons' lands shall be held by the king] we will hold the lands of persons convicted of felony for only a year and a day [to remove the chattels and movables], after which they shall be restored to the lords of the fees. [xxiii. in what place weirs shall be removed] all fishweirs [obstructing navigation] shall be entirely removed by the thames and medway rivers, and throughout england, except upon the seacoast. [xxiv. in what case a praecipe in capite is not grantable] the [royal] writ called "praecipe in capite" [for tenements held in chief of the crown] shall not in the future be granted to anyone respecting any freehold if thereby a freeman [who has a mesne lord] may not be tried in his lord's court. [xxv. there shall be but one measure throughout the realm] there shall be one measure of wine throughout our realm, one measure of ale, and one measure of grain, to wit, the london quarter, and one breadth of dyed cloth, russets, and haberjets, to wit, two {ells} yards within the selvages. as with measures so shall it also be with weights. [xxvi. inquisition of life and limb] henceforth nothing shall be given or taken for a writ of inquisition upon life or limb, but it shall be granted freely and not denied. [xxvii. tenure of the king in socage and of another by knight's service. petit serjeanty.] if anyone holds of us by fee farm, socage, or burgage, and also holds land of another by knight's service, we will not by reason of that fee farm, socage, or burgage have the wardship of his heir, or the land which belongs to another man's fee. nor will we have the custody of such fee farm, socage, or burgage unless such fee farm owe knight's service. we will not have the wardship of any man's heir, or the land which he holds of another by knight's service, by reason of any petty serjeanty which he holds of us by service of rendering us knives, arrows, or the like. [xxviii. wages of law shall not be without witness] in the future no [royal] bailiff shall upon his own unsupported accusation put any man to trial or oath without producing credible witnesses to the truth of the accusation. [xxix. none shall be condemned without trial. justice shall not be sold or delayed.] no freeman shall be taken, imprisoned, disseised of his freehold or liberties or free customs, or be outlawed, banished, or in any way ruined, nor will we prosecute or condemn him, except by the lawful judgment of his peers or by the law of the land. to no one will we sell [by bribery], to none will we deny or delay, right or justice. [xxx. merchant strangers coming into this realm shall be well used] all merchants shall have safe conduct to go and come out of and into england, and to stay in and travel through england by land and water, to buy and sell, without evil tolls, in accordance with old and just customs, except, in time of war, such merchants as are of a country at war with us. if any such be found in our realm at the outbreak of war, they shall be detained, without harm to their bodies or goods, until it be known to us or our chief justiciary how our merchants are being treated in the country at war with us. and if our merchants are safe there, then theirs shall be safe with us. {henceforth anyone, saving his allegiance due to us, may leave our realm and return safely and securely by land and water, except for a short period in time of war, for the common benefit of the realm.} [xxxi. tenure of a barony coming into the king's hands by escheat] if anyone dies holding of any escheat, such as the honor of wallingford, nottingham, boulogne, {lancaster,} or other escheats which are in our hands and are baronies, his heir shall not give any relief or do any service to us other than he would owe to the baron, if such barony had been in the baron's hands. and we will hold the escheat in the same manner in which the baron held it. nor shall we have, by occasion of any barony or escheat, any escheat or keeping of any of our men, unless he who held the barony or escheat elsewhere held of us in chief. persons dwelling outside the forest [in the county] need not in the future come before our justiciaries of the forest in answer to a general summons unless they are impleaded or are sureties for any person or persons attached for breach of forest laws. [xxxii. lands shall not be aliened to the prejudice of the lord's service] no freeman from henceforth shall give or sell any more of his land, but so that of the residue of the lands the lord of the fee may have the service due to him which belongs to the fee. {we will appoint as justiciaries, constables, sheriffs, or bailiffs only such men as know the law of the land and will keep it well.} [xxxiii. patrons of abbeys shall have the custody of them when vacant] all barons who had founded abbeys of which they have charters of english kings or old tenure, shall have the custody of the same when vacant, as is their due. all forests which have been created in our time shall forthwith be disafforested. {so shall it be done with regard to river banks which have been enclosed by fences in our time.} {all evil customs concerning forests and warrens [livestock grounds in forests], foresters and warreners, sheriffs and their officers, or riverbanks and their conservators shall be immediately investigated in each county by twelve sworn knights of such county, who are chosen by honest men of that county, and shall within forty days after this inquest be completely and irrevocably abolished, provided always that the matter has first been brought to our knowledge, or that of our justiciars, if we are not in england.} {we will immediately return all hostages and charters delivered to us by englishmen as security for the peace or for the performance of loyal service.} {we will entirely remove from their offices the kinsmen of gerald de athyes, so that henceforth they shall hold no office in england: engelard de cigogne, peter, guy, and andrew de chanceaux, guy de cigogne, geoffrey de martigny and his brothers, philip mark and his brothers, and geoffrey his nephew, and all their followers.} {as soon as peace is restored, we will banish from our realm all foreign knights, crossbowmen, sergeants, and mercenaries, who have come with horses and arms, to the hurt of the realm.} {if anyone has been disseised or deprived by us, without the legal judgment of his peers, of lands, castles, liberties, or rights, we will immediately restore the same, and if any disagreement arises on this, the matter shall be decided by judgment of the twenty- five barons mentioned below in the clause for securing the peace. with regard to all those things, however, of which any man was disseised or deprived, without the legal judgment of his peers, by king henry [ii] our father or our brother king richard, and which remain in our hands or are held by others under our warranty, we shall have respite during the term commonly allowed to the crusaders, excepting those cases in which a plea was begun or inquest made on our order before we took the cross; when, however, we return from our pilgrimage, or if perhaps we do not undertake it, we will at once do full justice in these matters.} {likewise, we shall have the same respite in rendering justice with respect to the disafforestation or retention of those forests which henry [ii] our father or richard our brother afforested, and concerning custodies of lands which are of the fee of another, which we hitherto have held by reason of the fee which some person has held of us by knight's service, and to abbeys founded on fees other than our own, in which the lord of that fee asserts his right. when we return from our pilgrimage, or if we do not undertake it, we will forthwith do full justice to the complainants in these matters.} [xxxiv. in what only case a woman shall have an appeal of death] no one shall be arrested or imprisoned upon a woman's appeal for the death of any person other than her husband [since no woman was expected to personally engage in trial by combat]. [xxxv. at what time shall be kept a county court, sheriff's turn and a leet court (court of criminal jurisdiction excepting felonies)] no county court from henceforth shall be held, but from month to month; and where greater time has been used, there shall be greater. nor shall any sheriff, or his bailiff, keep his turn in the hundred but twice in the year; and no where but in due place and accustomed time, that is, once after easter, and again after the feast of saint michael. and the view of frankpledge [the right of assembling the whole male population over years except clergy, earls, barons, knights, and the infirm, at the leet or soke court for the capital frankpledges to give account of the peace kept by individuals in their respective tithings] shall be likewise at the feast of saint michael without occasion, so that every man may have his liberties which he had, or used to have, in the time of king henry [ii] our grandfather, or which he has since purchased. the view of frankpledge shall be so done, that our peace may be kept; and that the tything be wholly kept as it has been accustomed; and that the sheriff seek no occasions, and that he be content with so much as the sheriff was wont to have for his view-making in the time of king henry our grandfather. [xxxvi. no land shall be given in mortmain] it shall not be lawful from henceforth to any to give his land to any religious house, and to take the same land again to hold of the same house [thereby extinguishing the feudal rights of the temporal lord]. nor shall it be lawful to any house of religion to take the lands of any, and to lease the same to him of whom he received it. if any from henceforth give his lands to any religious house, and thereupon be convicted, the gift shall be utterly void, and the land shall accrue to the lord of the fee. {all fines unjustly and unlawfully given to us, and all amercements levied unjustly and against the law of the land, shall be entirely remitted or the matter decided by judgment of the twenty-five barons mentioned below in the clause for securing the peace, or the majority of them, together with the aforesaid stephen, archbishop of canterbury, if he himself can be present, and any others whom he may wish to bring with him for the purpose; if he cannot be present, the business shall nevertheless proceed without him. if any one or more of the said twenty-five barons has an interest in a suit of this kind, he or they shall step down for this particular judgment, and be replaced by another or others, elected and sworn by the rest of the said barons, for this occasion only.} {if we have disseised or deprived the welsh of lands, liberties, or other things, without legal judgment of their peers, in england or wales, they shall immediately be restored to them, and if a disagreement arises thereon, the question shall be determined in the marches by judgment of their peers according to the law of england as to english tenements, the law of wales as to welsh tenements, the law of the marches as to tenements in the marches. the same shall the welsh do to us and ours.} {but with regard to all those things of which any welshman was disseised or deprived, without legal judgment of his peers, by king henry [ii] our father or our brother king richard, and which we hold in our hands or others hold under our warranty, we shall have respite during the term commonly allowed to the crusaders, except as to those matters whereon a suit had arisen or an inquisition had been taken by our command prior to our taking the cross. immediately after our return from our pilgrimage, or if by chance we do not undertake it, we will do full justice according to the laws of the welsh and the aforesaid regions.} {we will immediately return the son of llywelyn, all the welsh hostages, and the charters which were delivered to us as security for the peace.} {with regard to the return of the sisters and hostages of alexander, king of the scots, and of his liberties and rights, we will do the same as we would with regard to our other barons of england, unless it appears by the charters which we hold of william his father, late king of the scots, that it ought to be otherwise; this shall be determined by judgment of his peers in our court.} [xxxvii. subsidy in respect of this charter, and the charter of the forest, granted to the king.] escuage [service of the shield, a tenure in knights� service] from henceforth shall be taken as it was wont to be in the time of king henry [ii] our grandfather; reserving to all archbishops, bishops, abbots, priors, templers, hospitallers, earls, barons, and all persons as well spiritual as temporal; all their free liberties and free customs, which they have had in time passed. and all these customs and liberties aforesaid, which we have granted to be held within this our realm, as much as pertains to us and our heirs, we shall observe. {all the customs and liberties aforesaid, which we have granted to be enjoyed, as far as it pertains to us towards our people throughout our realm, let all our subjects, whether clerics or laymen, observe, as far as it pertains toward their dependents.} and all men of this our realm, as well spiritual as temporal (as much as in them is) shall observe the same against all persons in like wise. and for this our gift and grant of these liberties, and of other constrained in our charter of liberties of our forest, the archbishops, bishops, abbots, priors, earls, barons, knights, freeholders, and our other subjects, have given unto us the fifteenth part of all their movables. and we have granted unto them on the other part, that neither we, nor our heirs, shall procure or do any thing whereby the liberties in this charter contained shall be infringed or broken. and if any thing be procured by any person contrary to the premises, it shall be had of no force nor effect. [enforcement] {whereas we, for the honor of god and the reform of our realm, and in order the better to allay the discord arisen between us and our barons, have granted all these things aforesaid. we, willing that they be forever enjoyed wholly and in lasting strength, do give and grant to our subjects the following security, to wit, that the barons shall elect any twenty-five barons of the realm they wish, who shall, with their utmost power, keep, hold, and cause to be kept the peace and liberties which we have granted unto them and by this our present charter have confirmed, so that if we, our justiciary, bailiffs, or any of our ministers offends in any respect against any man, or transgresses any of these articles of peace or security, and the offense is brought before four of the said twenty-five barons, those four barons shall come before us, or our chief justiciary if we are out of the realm, declaring the offense, and shall demand speedy amends for the same. if we or, in case of our being out of the realm, our chief justiciary fails to afford redress within forty days from the time the case was brought before us or, in the event of our having been out of the realm, our chief justiciary, the aforesaid four barons shall refer the matter to the rest of the twenty-five barons, who, together with the commonalty of the whole country, shall distrain and distress us to the utmost of their power, to wit, by capture of our castles, lands, and possessions and by all other possible means, until compensation is made according to their decision, saving our person and that of our queen and children; as soon as redress has been had, they shall return to their former allegiance. anyone in the realm may take oath that, for the accomplishment of all the aforesaid matters, he will obey the orders of the said twenty-five barons and distress us to the utmost of his power; and we give public and free leave to everyone wishing to take oath to do so, and to none will we deny the same. moreover, all such of our subjects who do not of their own free will and accord agree to swear to the said twenty-five barons, to distrain and distress us together with them, we will compel to do so by our command in the aforesaid manner. if any one of the twenty-five barons dies or leaves the country or is in any way hindered from executing the said office, the rest of the said twenty-five barons shall choose another in his stead, at their discretion, who shall be sworn in like manner as the others. in all cases which are referred to the said twenty-five barons to execute, and in which a difference arises among them, supposing them all to be present, or in which not all who have been summoned are willing or able to appear, the verdict of the majority shall be considered as firm and binding as if the whole number had been of one mind. the aforesaid twenty-five shall swear to keep faithfully all the aforesaid articles and, to the best of their power, to cause them to be kept by others. we will not procure, either by ourself or any other, anything from any man whereby any of these concessions or liberties may be revoked or abated. if any such procurement is made, let it be null and void; it shall never be made use of either by us or by any other.} [amnesty] {we have also fully forgiven and pardoned all ill-will, wrath, and malice which has arisen between us and our subjects, both clergy and laymen, during the disputes, to and with all men. moreover, we have fully forgiven and, as far as it pertains to us, wholly pardoned to and with all, clergy and laymen, all offenses made in consequence of the said disputes from easter in the sixteenth year of our reign until the restoration of peace. over and above this, we have caused letters patent to be made for stephen, archbishop of canterbury, henry, archbishop of dublin, the above-mentioned bishops, and master pandulph, for the aforesaid security and concessions.} {wherefore we will that, and firmly command that, the english church shall be free and all men in our realm shall have and hold all the aforesaid liberties, rights, and concessions, well and peaceably, freely, quietly, fully, and wholly, to them and their heirs, of us and our heirs, in all things and places forever, as is aforesaid. it is moreover sworn, as will on our part as on the part of the barons, that all these matters aforesaid shall be kept in good faith and without deceit. witness the above-named and many others. given by our hand in the meadow which is called runnymede, between windsor and staines, on the fifteenth day of june in the seventeenth year of our reign.} these being witnesses: lord s. archbishop of canterbury, e. bishop of london, f. bishop of bathe, g. of wincester, h. of lincoln, r. of salisbury, w. of rochester, x. of worcester, f. of ely, h. of hereford, r. of chichester, w. of exeter, bishops; the abbot of st. edmonds, the abbot of st. albans, the abbot of bello, the abbot of st. augustines in canterbury, the abbot of evesham, the abbot of westminster, the abbot of bourgh st. peter, the abbot of reding, the abbot of abindon, the abbot of malmbury, the abbot of winchcomb, the abbot of hyde, the abbot of certesey, the abbot of sherburn, the abbot of cerne, the abbot of abborebir, the abbot of middleton, the abbot of seleby, the abbot of cirencester, h. de burgh justice, h. earl of chester and lincoln, w. earl of salisbury, w. earl of warren, g. de clare earl of gloucester and hereford, w. de ferrars earl of derby, w. de mandeville earl of essex, h. de bygod earl of norfolk, w. earl of albemarle, h. earl of hereford, f. constable of chester, g. de tos, h. fitzwalter, r. de byponte, w. de bruer, r. de montefichet, p. fitzherbert, w. de aubenie, f. gresly, f. de breus, f. de monemue, f. fitzallen, h. de mortimer, w. de beuchamp, w. de st. john, p. de mauli, brian de lisle, thomas de multon, r. de argenteyn, g. de nevil, w. de mauduit, f. de balun, and others. given at westminster the th day of february the th year of our reign. we, ratifying and approving these gifts and grants aforesaid, confirm and make strong all the same for us and our heirs perpetually, and by the tenour of these presents, do renew the same; willing and granting for us and our heirs, that this charter, and all singular his articles, forever shall be steadfastly, firmly, and inviolably observed; and if any article in the same charter contained, yet hitherto peradventure has not been kept, we will, and by royal authority, command, from henceforth firmly they be observed. 	statutes which were enacted after the magna carta follow: 	nuisance is recognized by this statute: "every freeman, without danger, shall make in his own wood, or in his land, or in his water, which he has within our forest, mills, springs, pools, clay pits, dikes, or arable ground, so that it does not annoy any of his neighbors." 	anyone taking a widow's dower after her husband's death must not only return the dower, but pay damages in the amount of the value of the dower from the time of death of the husband until her recovery of seisin. 	widows may bequeath the crop of their ground as well of their dowers as of their other lands and tenements. 	freeholders of tenements on manors shall have sufficient ingress and egress from their tenements to the common pasture and as much pasture as suffices for their tenements. 	"grain shall not be taken under the pretense of borrowing or the promise of after-payment without the permission of the owner." 	"a parent or other who forcefully leads away and withholds, or marries off, an heir who is a minor (under ), shall yield the value of the marriage and be imprisoned until he has satisfied the king for the trespass. if an heir years or older marries without his lord's permission to defraud him of the marriage and the lord offers him reasonable and convenient marriage, without disparagement, then the lord shall hold his land beyond the term of his age, that, of twenty one years, so long that he may receive double the value of the marriage as estimated by lawful men, or after as it has been offered before without fraud or collusion, and after as it may be proved in the king's court. any lord who marries off a ward of his who is a minor and cannot consent to marriage, to a villain or other, such as a burgess, whereby the ward is disparaged, shall lose the wardship and all its profits if the ward's friends complain of the lord. the wardship and profit shall be converted to the use of the heir, for the shame done to him, after the disposition and provision of his friends." (the "marriage" could be annulled by the church.) 	"if an heir of whatever age will not marry at the request of his lord, he shall not be compelled thereunto; but when he comes of age, he shall pay to his lord the value of the marriage before receiving his land, whether or not he himself marries." 	"interest shall not run against any minor, from the time of death of his ancestor until his lawful age; so nevertheless, that the payment of the principal debt, with the interest that was before the death of his ancestor shall not remain." 	the value of debts to be repaid to the king or to any man shall be reasonably determined by the debtor's neighbors and not by strangers. a debtors' plough cattle or sheep cannot be taken to satisfy a debt. 	the wards and escheats of the king shall be surveyed yearly by three people assigned by the king. the sheriffs, by their counsel, shall approve and let to farm such wards and escheats as they think most profitable for the king. the sheriffs shall be answerable for the issues thereof in the exchequer at designated times. the collectors of the customs on wool exports shall pay this money at the two designated times and shall make yearly accounts of all parcels in ports and all ships. 	by statute leap year was standardized throughout the nation, "the day increasing in the leap year shall be accounted in that year", "but it shall be taken and reckoned in the same month wherein it grew and that day and the preceding day shall be counted as one day." 	"an english penny [ d.], called a sterling, round and without any clipping, shall weigh wheat grains dry in the middle of the ear." 	measurements of distance were standardized to twelve inches to a foot, three feet to a yard, and so forth up to an acre of land. 	goods which could only be sold by the standard weights and measures (such as ounces, pounds, gallons, bushels) included sacks of wool, leather, skins, ropes, glass, iron, lead, canvas, linen cloth, tallow, spices, confections cheese, herrings, sugar, pepper, cinnamon, nutmeg, wheat, barley, oats, bread, and ale. the prices required for bread and ale were based on the market price for the wheat, barley, and oats from which they were made. 	the punishment for repeated violations of required measures, weights, or prices of bread and ale by a baker or brewer; selling of spoiled or unwholesome wine, meat, fish by brewers, butchers, or cooks; or a steward or bailiff receiving a bribe was reduced to placement in a pillory with a shaven head so that these men would still be fit for military service and not overcrowd the gaols. 	forest penalties were changed so that "no man shall lose either life or member [limb] for killing of our deer. but if any man be taken and convicted for taking our venison, he shall make a grievous fine, if he has anything. and if he has nothing to lose, he shall be imprisoned for a year and a day. and after that, if he can find sufficient sureties, he shall be delivered, and, if not, he shall abjure the realm of england." 	the forest charter provided that: every freeman may allow his pigs to eat in his own wood in the king's forest. he may also drive his pigs through the king's forest and tarry one night within the forest without losing any of his pigs. but people having greyhounds must keep them out of the forest so they don't maim the deer. 	the forest charter also allowed magnates traveling through the king's forest on the king's command to come to him, to kill one or two deer as long as it was in view of the forester if he was present, or while having a horn blown, so it did not seem to be theft. 	after a period of civil war, the following statutes were enacted: "all persons, as well of high as of low estate, shall receive justice in the king's court; and none shall take any such revenge or distress by his own authority, without award of our court, although he is damaged or injured, whereby he would have amends of his neighbor either higher or lower." the penalty is a fine according to the trespass. a fraudulent conveyance to a minor or lease for a term of years made to defraud a lord of a wardship shall be void. a lord who maliciously and wrongfully alleges this to a court shall pay damages and costs. if a lord will not render unto an heir his land when he comes of age or takes possession away from an heir of age or removes anything from the land, he shall pay damages. (the king retained the right to take possession of an heir's land for a year or, in lieu of this, to take one year's profit from the land in addition to the relief.) kinsmen of a minor heir who have custody of his land held in socage shall make no waste, sale, nor destruction of the inheritance and shall answer to the heir when he comes of age for the issues of the land, except for the reasonable costs of these guardians. no lord may distrain any of his tenants. no one may drive animals taken by distraint out of the county where they have been taken. "farmers during their terms, shall not make waste, sale, nor exile of house, woods, and men, nor of any thing else belonging to the tenements which they have to farm". 	church law required that planned marriages be publicly announced by the priest so that any impediment could be made known. if a marriage was clandestine or both parties knew of an impediment, or it was within the prohibited degrees of consanguinity, the children would be illegitimate. according to church rules, a man could bequeath his personal property subject to certain family rights. these were that if only the wife survived, she received half the property. similarly, if children survived, but no wife, they received half the property. when the wife and children survived, each party received one third. the church hoped that the remaining fraction would go to the church as a reward for praying for the deceased's soul. it taught that dying without a will was sinful. adults were to confess their sins at least yearly to their parish priest, which confession would be confidential. 	henry de bracton, a royal justice and the last great ecclesiastical attorney, wrote an unfinished treatise: a tract on the laws and customs of england, systematizing and organizing the law of the court rolls with definitions and general concepts and describing court practice and procedure. it was influenced by his knowledge of roman legal concepts, such as res judicata, and by his own opinions, such as that the law should go from precedent to precedent. he also argued that the will and intent to injure was the essence of murder, so that neither an infant nor a madman should be held liable for such and that degrees of punishment should vary with the level of moral guilt in a killing. he thought the deodand to be unreasonable. 	bracton defines the requirements of a valid and effective gift as: "it must be complete and absolute, free and uncoerced, extorted neither by fear nor through force. let money or service play no part, lest it fall into the category of purchase and sale, for if money is involved there will then be a sale, and if service, the remuneration for it. if a gift is to be valid the donor must be of full age, for if a minor makes a gift it will be ineffective since (if he so wishes) it shall be returned to him in its entirety when he reaches full age. also let the donor hold in his own name and not another's, otherwise his gift may be revoked. and let him, at the least, be of sound mind and good memory, though an invalid, ill and on his death bed, for a gift make under such conditions will be good if all the other [requirements] of a valid gift are met. for no one, provided he is of good memory, ought to be kept from the administration or disposition of his own property when affected by infirmity, since it is only then that he must make provision for his family, his household and relations, given stipends and settle his bequests; otherwise such persons might suffer damage without fault. but since charters are sometimes fraudulently drawn and gifts falsely taken to be made when they are not, recourse must therefore be had to the country and the neighborhood so that the truth may be declared." 	in bracton's view, a villein could buy his own freedom and the child of a mixed marriage was free unless he was born in the tenement of his villein parent. - judicial procedure - 	the royal court split up into several courts with different specialties and became more like departments of state than offices of the king's household. the justices were career civil servants knowledgeable in the civil and canon law. the court of the king's bench (a marble slab in westminster upon which the throne was placed) traveled with the king and heard criminal cases and pleas of the crown. any use of force, however trivial, was interpreted as breach of the royal peace and could be brought before the king's bench. its records were the coram rege rolls. the title of the chief justiciar of england changed to the chief justice of england. the court of common pleas heard civil cases brought by one subject against another. pursuant to the magna carta, it sat only at one place, the great hall in westminster. it had concurrent jurisdiction with the king's bench over trespass cases. its records were the de banco rolls. the court of the exchequer with its subsidiary department of the treasury was in almost permanent session at westminster, collecting the crown's revenue and enforcing the crown's rights. 	appeals from these courts could be made to the king and/or his small council, which was the curia regis and could hear any plea of the land. in , the justiciar as the principal royal executive officers and chief presiding officer over the curia regis ended. in , a chief justiciar was appointed the hold pleas before the king. henceforth, a justiciar was a royal officer who dealt only with judicial work. about the same time the presiding justice of the court of common pleas also came to be styled justiciar or chief justice. justices were no longer statesmen or politicians, but simply men learned in the law. 	membership in or attendance at the great council or parliament no longer rested upon feudal tenure, but upon a writ of summons which was, to a degree, dependent on the royal will. 	crown pleas included issues of the king's property, fines due to him, murder (a body found with no witnesses to a killing), homicide (a killing for which there were witnesses), rape, wounding, mayhem, consorting, larceny, robbery, burglary, arson, poaching, unjust imprisonment, selling cloth by nonstandard widths, selling wine by nonstandard weights. crown causes were pled by the king's serjeants or servants at law, who were not clerics. apprentices at law learned pleading from them. 	between the proprietary action and the possessory assizes there is growing use in the king's courts of writs of entry, by which a tenant may be ordered to give up land, e.g. by a recent flaw in a tenant's title, for a term which has expired, by a widow for her late husband's land, or by an heir who has become of full age from his guardian. for instance: " ...command tertius that ... he render to claimant, who is of full age, as it is said, ten acres ...which he claims to be his right and inheritance and into which the said tertius has no entry save by secundus, to whom primus demised [gaged] them, who had only the wardship thereof while the aforesaid claimant was under age, as he says...". but most litigation about land is still through the writ of right for proprietary issues and the assizes of novel disseisin and mort d'ancestor for possessory issues. 	royal itinerant justices traveled to the counties every seven years. there, they gave interrogatories to local assizes of twelve men to determine what had happened there since the last eyre. all boroughs had to send twelve burgesses who were to indict any burgesses suspected of breaking the royal law. every crime, every invasion of royal rights, and every neglect of police duties was to be presented and tried. suspects were held in gaol until their cases could be heard and gaol breaks were common. punishment after trial was prison for serious crimes, expulsion from the realm for less serious crimes, and pledges for good behavior for lesser crimes. the visitation of these justices was anticipated with trepidation. in , the residents of cornwall hid in the woods rather than face the itinerant justices. 	royal coroners held inquests on all sudden deaths to determine whether they were accidental or not. if not, royal justices held trial. they also had duties in treasure trove and shipwreck cases. 	justices of assize, justices of the peace, and itinerant justices operated at the county level. the traditional county courts had lost much jurisdiction to the royal courts and were now limited to personal actions in causes involving usually no more than s. there were pleas of trespass and debt, unjust seizure and detention of beasts, rent collection, claims of fugitive villeins and their goods, nuisances, and encroachments. the sheriff still constitutes and conducts the court. the county court met every three or four weeks, usually in the sheriff's castle located in the chief borough of the county, but some met in the open air. 	twice a year the sheriff visited each hundred in the county to hold a turn [court for small offenses, such as encroachment of public land, brewing and baking contrary to government regulations, and use of dishonest weights and measures.]. everyone who held freehold land in the hundred except the greater magnates had to attend or be fined for absence. the sheriff annually viewed frankpledge, in which every layman without land that could be forfeited for felony, including villeins, were checked for being in a tithing, a group of neighbors responsible for each other's good conduct. this applied to every boy who had reached the age of twelve. he had to swear on the bible "i will be a lawful man and bear loyalty to our lord the king and his heirs, and i will be justiciable to my chief tithing man, so help me god and the saints." each tithing man paid a penny to the sheriff. 	the hundred court decided cases of theft, viewing of boundaries of land, claims for tenurial services, claims for homage, relief, and for wardship; enfeoffments made, battery and brawls not amounting to felony, wounding and maiming of beasts, collection of debts, trespass, detinue [detention of personal property which originally was rightfully acquired] and covenant, which now requires a sealed writing; defamation, and inquiries and presentments arising from the assizes of bread and ale and measures. a paid bailiff had responsibility for the hundred court, which met every three weeks. 	still in existence is the old self-help law of hamsocne, the thief hand-habbende, the thief back-berend, the old summary procedure where the thief is caught in the act, aethelstan's laws, edward the confessor's laws, and kent's childwyte [fine for begetting a bastard on a lord's female bond slave]. under the name of "actio furti" [appeal of larceny] is the old process by which a thief can be pursued and goods vindicated. as before and for centuries later, deodands were forfeited to the king to appease god's wrath. these chattel which caused the death of a person were usually carts, cart teams, horses, boats, or millwheels. then they were forfeited to the community, which paid the king their worth. sometimes the justices named the charitable purpose for which the deodand was to be spent, such as the price of a boat to go to the repair of a bridge. 	five cases are: case: "john croc was drowned from his horse and cart in the water of bickney. judgment: misadventure. the price of the horse and cart is s. d. deodand." case: "willam ruffus was crushed to death by a certain trunk. the price of the trunk is d., for which the sheriff is to answer. d. deodand." case: "william le hauck killed edric le poter and fled, so he is to be exacted and outlawed. he was in the tithing of reynold horloc in clandon of the abbot of chertsey (west clandon), so it is in mercy. his chattels were s., for which the bailiff of the abbot of chertsey is to answer." case: "richard de bregsells, accused of larceny, comes and denies the whole and puts himself on the country for good or ill. the twelve jurors and four vills say that he is not guilty, so he is quit." case: william le wimpler and william vintner sold wine contrary to the statute, so they are in mercy. 	other cases dealt with issues of entry, e.g. whether land was conveyed or just rented; issues of whether a man was free, for which his lineage was examined; issues of to which lord a villein belonged; issues of nuisance such as making or destroying a bank, ditch, or hedge; diverting a watercourse or damming it to make a pool; obstructing a road, and issues of what grazing rights were conveyed in pasture land, waste, woods, or arable fields between harvest and sowing. grazing right disputes usually arose from the ambiguous language in the grant of land "with appurtenances". 	courts awarded specific relief as well as money damages. if a landlord broke his covenant to lease land for a term of years, the court restored possession to the lessee. if a lord did not perform the services due to his superior lord, the court ordered him to perform the services. the courts also ordered repair by a lessee. 	debts of country knights and freeholders were heard in the local courts; debts of merchants and burgesses were heard in the courts of the fairs and boroughs; debts due under wills and testaments were heard in the ecclesiastical courts. the ecclesiastical courts deemed marriage to legitimize bastard children whose parents married, so they inherited personal property and money of their parents. proof was by compurgation. church law required excommunication to be in writing with the reasons therefore, and a copy given to the excommunicant. a church judge was required to employ a notary or two men to write down all acts of the judge and to give a copy to the parties to protect against unjust judges. no cleric was allowed to pronounce or execute a sentence of death or to take part in judicial tests or ordeals. anyone knowingly accepting a stolen article was required to restore it to its owner. heretics were to be excommunicated. 	trial by combat is still available, although it is extremely rare for it to take place. 	the manor court imposed penalties on those who did not perform their services to the manor and the lord wrote down the customs of the manor for future use in other courts. 	by statute, no fines could be taken of any man for fair pleading in the circuit of justiciars, county, hundred, or manor courts. 	various statutes relaxed the requirements for attendance at court of those who were not involved in a case as long as there were enough to make the inquests fully. and "every freeman who owes suit to the county, tything, hundred, and wapentake, or to the court of his lord, may freely make his attorney attend for him." all above the rank of knight were exempted from attendance on the sheriff's turn, unless specifically summoned. prelates and barons were generally excepted from the county courts by the charters of their estates. charters of boroughs often excepted their representatives at the county court when there were no justices. some barons and knights paid the sheriff to be excused. the king often relieved the simple knights by special license. there was frequently a problem of not having enough knights to hold the assizes. henry iii excused the attendance at hundred courts of all but those who were bound to special service, or who were concerned in suits. 	trespass has become a writ of course in the common law. it still involves violence, but its element of breach of the peace extends to those breaches which do not amount to felony. it can include assault and battery, physical force to land, and physical force to chattels, e.g. assaulting and beating the plaintiff, breaking into his close, or carrying off his goods. one found guilty is fined and imprisoned. as in criminal matters, if a defendant does not appear at court, his body can be seized and imprisoned, and if he cannot be found, he may be outlawed. trespass to goods results in damages, rather than the return of the goods, for goods carried off from the plaintiff's possession and can be brought by bailees. 	in chancery, the court of the chancellor, if there is a case with no remedy specified in the law, that is similar to a situation for which there is a writ, then a new writ may be made for that case. (by this will later be expanded the action of trespass called "trespass on the case".) 	various cases from the manors of the abbey of bec in - are: . ragenilda of bec gives s. for having married without licence. pledge, william of pinner. the same ragenilda demands against roger loft and juliana his wife a certain messuage which belonged to robert le beck, and a jury of twelve lawful men is granted her in consideration of the said fine, and if she recovers seisin she will give in all s. and twelve jurors are elected, to wit, john of hulle, william maureward, robert hale walter but, walter sigar, william brihtwin, richard horseman, richard leofred, william john's son, hugh cross, richard pontfret and robert croyser, john bisuthe and gilbert bisuthe who are sworn. and they say that the said ragenilda has the greater right. therefore let her have seisin. . richard guest gives d. and if he recovers will give s. to have a jury of twelve lawful men as to whether he has the greater right in a certain headland at eastcot which ragenilda widow of william andrews holds, or the said ragenilda. pledges for the fine, john brook and richard of pinner. and the said ragenilda comes and says that she has no power to bring that land into judgment because she has no right in it save by reason of the wardship of the son and heir of her husband, who is under age. and richard is not able to deny this. therefore let him await [the heir's] full age. . walter hulle gives s. d. for licence to dwell on the land of the prior of harmondsworth so long as he shall live and as a condition finds pledges, to wit, william slipper, john bisuthe, gilbert bisuthe, hugh tree, william john's son, john hulle, who undertake that the said walter shall do to the lord all the services and customs which he would do if he dwelt on the lord's land and that his heriot shall be secured to the lord in case he dies there [i.e. at harmondsworth]. . geoffrey sweyn demands the moiety of one virgate of land which john crisp and alina hele hold, and he gives s. to have a jury, and if he recovers will give s. and the said jurors come and say upon their oath that the said geoffrey has no right in the said land. therefore let the said tenants go thence without day and let the said geoffrey pay s. pledges, hugh bussel and godfrey francis. . juliana saer's daughter demands as her right the moiety of one messuage with a croft, which messuage william snell and goda his wife, sister of the said juliana hold. and they have made accord by leave [of the court] to the effect that the said william and goda give to the said juliana a barn and the curtilage nearest the green and two selions [a ridge of land between two furrows] in the western part of the said croft [a small enclosed field]. and the said william put himself in mercy. fine, d. . hugh of stanbridge complains of gilbert vicar's son and william of stanbridge that the wife of the said gilbert who is of [gilbert's] mainpast and the said william unjustly etc. beat and unlawfully struck him and dragged him by his hair out of his own proper house, to his damage s. and to his dishonor s., and [of this] he produces suit. and gilbert and william come and defend all of it fully. therefore let each of them go to his law six-handed. afterwards they make accord to this effect that in case the said hugh shall hereafter in any manner offend against [gilbert and william] and thereof shall be convicted he will give the lord s. d. by way of penalty and will make amends to [gilbert and william] according to the judgment of six lawful men, and the others on their part will do the like by him. and hugh put himself in mercy. fine, s. pledges, john tailor and walter brother. . breakers of the assize [of beer:] william idle (fined d.), maud carter's widow ( d.), walter carter. . john witriche in mercy for carrying off thorns. fine, d. . robert dochi in mercy (fine, d.) for divers trespasses. pledges, gilbert priest's son, ralph winbold and walter green. . ailwin crisp in mercy for his cow caught in the lord's pasture when ward had been made. fine, d. . john bernard in mercy for his beasts caught by night in the lord's meadow. fine, s. . richard love gives d. to have a jury of twelve touching a rod of land which robert of brockhole and juliana his wife hold. this action is respited to the next court [when the jurors are to come] without further delay. afterwards the jurors come and say upon their oath that the said richard has the greater right in the said land. therefore let him have seisin. . william blackbeard in mercy for not coming with his law as he was bound to do. pledges, geoffrey of wick and geoffrey payn. fine, d. . it was presented that stephen shepherd by night struck his sister with a knife and grievously wounded her. therefore let him be committed to prison. afterwards he made fine with s. pledge, geoffrey of wick. . it was presented that robert carter's son by night invaded the house of peter burgess and in felony threw stones at his door so that the said peter raised the hue.therefore let the said robert be committed to prison. afterwards he made fine with s. . nicholas drye, henry le notte (fine, d.) and thomas hogue (fine, d.) were convicted for that they by night invaded the house of sir thomas the chaplain and forcibly expelled thence a man and woman who had been taken in there as guests. therefore they are in mercy. pledges of the said thomas, richard of lortemere and jordan of paris. pledges of the said henry, richard pen...and richard butry. . adam moses gives half a sextary of wine to have an inquest as to whether henry ayulf accused him of the crime of larceny and used opprobrious and contumelious words of him. afterwards they made accord and henry finds security for an amercement. fine, d. . isabella sywards in mercy for having sold to richard bodenham land that she could not warrant him. . all the ploughmen of great ogbourne are convicted by the oath of twelve men....because by reason of their default [the land] of the lord was ill ploughed whereby the lord is damaged to the amount of s.... and walter reaper is in mercy for concealing [i.e. not giving information as to] the said bad ploughing. afterwards he made fine with the lord with mark. . from ralph joce s. d. for his son, because he [the son] unlawfully carried off grain from the lord's court. pledge,geoffrey joce. . from henry pink d. for a trespass by waylaying. . from eve corner d. for a trespass of her pigs. . from ralph scales d. for timber carried off. . from william cooper d. for ploughing his own land with the lord's plough without licence. . from hugh newman d. for trespass in the wood. . from richard penant d. for the same. . from helen widow of little ogbourne d. for the same. . from nicholas siward d. for a false complaint against william pafey. . from william pafey d. for fighting with the said nicholas. . from the widow of ralph shepherd d. for a trespass in pencombe. . richard blund gives a half-mark and if he recovers will give two marks and a half to have a jury of the whole court, to inquire whether he has the greater right in a virgate of land which hugh frith holds in wardship with cristiana daughter of simon white, or the said cristiana. pledges for the fine, richard dene, william hulle, john of senholt, hugh smith, and william ketelburn. and the whole court say upon their oath that the said richard has greater right in the said land than anyone else. therefore let him recover his seisin. ....miller gives d. [the latin translates as s.] for a trespass against the assize of beer and because the lord's grain has been ill kept at the mill. pledges, john orped and joce serjeant. . noah gives s. in the same way for an inquest as to one acre. afterwards they submit themselves to arbitrators, who adjudge that the said robert shall pay s. to the said roger and s. to the said gilbert and s. to the said noah, and that he will do so [robert] finds pledges. . ralph bar in mercy for having beaten one of the lord's men. pledges, herbert rede and ralph brunild. . for the common fine of the township, a half-mark. . john boneffiant found pledges, to wit, william smith and william of bledlow, that he will not eloign himself from the lord's land and that he will be prompt to obey the lord's summons. - - - chapter - - - - the times: - - 	king edward i was respected by the people for his good government, practical wisdom, and genuine concern for justice for everyone. he loved his people and wanted them to love him. he came to the throne with twenty years experience governing lesser lands on the continent which were given to him by his father henry iii. he spoke latin, english, and french. he gained a reputation as a lawgiver and as a peacemaker in disputes on the continent. his reputation was so high and agreement on him as the next king so strong that england was peaceful in the almost two years that it took him to arrive there from continental business. he was truthful, law-abiding, and kept his word. he had close and solid family relationships, especially with his father and with his wife eleanor, to whom he was faithful. he was loyal to his close circle of good friends. he valued honor and adhered reasonably well to the terms of the treaties he made. he was generous in carrying out the royal custom of subsidizing the feeding of paupers. he visited the sick. he was frugal and dressed in plain, ordinary clothes rather than extravagant or ostentatious ones. he disliked ceremony and display. 	at his accession, there was a firm foundation of a national law administered by a centralized judicial system, a centralized executive, and an organized system of local government in close touch with both the judicial and the executive system. to gain knowledge of his nation, he sent royal commissioners into every county to ask about any encroachments on the king's rights and about misdeeds by any of the king's officials: sheriffs, bailiffs, or coroners. the results were compiled as the "hundred rolls". they were the basis of reforms which improved justice at the local as well as the national level. they also rationalized the array of jurisdictions that had grown up with feudal government. statutes were passed by a parliament of two houses, that of peers (lords) and that of an elected [rather than appointed] commons, and the final form of the constitution was fixed. 	wardships of children and widows were sought because they were very profitable. a guardian could get one tenth of the income of the property during the wardship and a substantial marriage amount when the ward married. parents often made contracts to marry for their young children. this avoided a forced marriage by a ward should the parents die. 	most earldoms and many baronages came into the royal house by escheat or marriage. the royal house employed many people. the barons developed a class consciousness of aristocracy and became leaders of society. many men, no matter of whom they held land, sought knighthood. the king granted knighthood by placing his sword on the head of able-bodied and moral candidates who swore an oath of loyalty to the king and to defend "all ladies, gentlewomen, widows and orphans" and to "shun no adventure of your person in any war wherein you should happen to be". a code of knightly chivalry became recognized, such as telling the truth and setting wrongs right. about half of the knights were literate. in , the king issued a writ ordering all freeholders who held land of the value of at least s. to receive knighthood at the king's hands. 	at the royal house and other great houses gentlemanly jousting competitions, with well-refined and specific rules, took the place of violent tournaments with general rules. edward forbade tournaments at which there was danger of a "melee". at these knights competed for the affection of ladies by jousting with each other while the ladies watched. courtly romances were common. if a man convinced a lady to marry him, the marriage ceremony took place in church, with feasting and dancing afterwards. romantic stories were at the height of their popularity. a usual theme was the lonely quest of a knight engaged in adventures which would impress his lady. 	riddles include: . i will make you a cross, and a thing will not touch you, and you will not be able to leave the house without breaking that cross. answer: stand before a post in your house, with your arms extended. . what you do not know, and i do not know, and no one can know after i have told you. answer: i will take a straw from the floor of the room, measure its inches, tell you the length, and break the straw. . a pear tree bears all the fruit a pear tree can bear and did not bear pears. answer: it bore only one pear. 	the dress of the higher classes was very changeable and subject to fashion as well as function. ladies no longer braided their hair in long tails, but rolled it up in a net under a veil, often topped with an elaborate and fanciful headdress. they wore non- functional long trains on their tunics and dainty shoes. men wore a long gown, sometimes clasped around the waist. overtunics were often lined or trimmed with native fur such as squirrel. people often wore solid red, blue, or green clothes. only monks and friars wore brown. the introduction of buttons and buttonholes to replace pins and laces made clothing warmer, and it could be made tighter. after edward i established the standard inch as three continuous dried barleycorns, shoes came in standard sizes and with a right one different from a left one. the spinning wheel came into existence to replace the handheld spindle. now one hand could be used to form the thread while the other hand turned a large upright wheel that caused the thread to wind around the spindle, which did not have to be held by hand. this resulted in an uninterrupted spinning motion which was not interrupted by alternately forming the thread and winding it on the spindle. 	in the s, there were extremes of fashion in men's and women's clothing including tight garments, pendant sleeves down to the ground, coats so short they didn't reach the hips or so long they reached the heels, hoods so small they couldn't cover the head, and shoes with long curved peaks like claws at the toes. both men and women wore belts low on the hips. the skirt of a lady's tunic was fuller and the bodice more closely fitted than before. her hair was usually elaborately done up, e.g. with long curls or curled braids on either side of the face. a jeweled circlet was often worn around her head. ladies wore on their arms or belts, cloth handbags, which usually contained toiletries, such as combs made of ivory, horn, bone, or wood, and perhaps a little book of devotions. a man wore a knife and a bag on his belt. some women painted their faces and/or colored their hair. there were hand- held glass mirrors. some people kept dogs purely as pets. 	there was a great development of heraldic splendor with for instance, crests, coat-armor, badges, pennons [long, triangular flag], and helmets. they descended through families. not only was it a mark of service to wear the badge of a lord, but lords wore each other's badges by way of compliment. 	lords surrounded themselves with people of the next lower rank, usually from nearby families, and had large households. for instance, the king had a circle of noblemen and ladies about him. a peer or great prelate had a household of about - people, among which were his inner circle, companions, administrators, secretaries, bodyguards and armed escort, chaplain, singing priests and choirboys, and servants. all officers of the household were gentlemen. the secretary was usually a clerk, who was literate because he had taken minor clerical orders. since the feudal obligation of the tenants was disappearing, a lord sometimes hired retainers to supplement his escort of fighting men. they proudly wore his livery of cloth or hat, which was in the nature of a uniform or badge of service. a nobleman and his lady had a circle of knights and gentlemen and their ladies. a knight had a circle of gentlemen and their ladies. 	the great barons lived in houses built within the walls of their castles. lesser barons lived in semi-fortified manors, many of which had been licensed to be embattled or crenelated. their halls were two stories high, and usually built on the first rather than on the second floor. windows came down almost to the floor. the hall had a raised floor at one end where the lord and lady and a few others sat at a high table. the hearth was in the middle of the room or on a wall. sometimes a cat was used to open and shut the louvers of the smoke outlet in the roof. the lord's bedroom was next to the hall on the second floor and could have windows into the hall and a spiral staircase connecting the two rooms. there was a chapel, in which the lord attended mass every morning. the many knights usually lived in unfortified houses with two rooms. 	in the great houses, there were more wall hangings, and ornaments for the tables. the tables were lit with candles or torches made of wax. plates were gold and silver. the lord, his lady, and their family and guests sat at the head table, which was raised on a dais. on this high table was a large and elaborate salt cellar. one's place in relationship to the salt cellar indicated one's status: above or below the salt. also, those of higher status at the table ate a superior bread. the almoner [alms giver] said grace. gentlemen poured the lord's drink [cupbearer], served his meat [carver], and supervised the serving of the food [sewer]. a yeoman ewery washed the hands of the lord and his guests and supplied the napkins, ewers [pitchers], and basins. a yeoman cellarer or butler served the wine and beer. the yeoman of the pantry served the bread, salt, and cutlery. the steward presided over the table of household officers of gentle birth. the marshall of the hall, clerk of the kitchen, or other yeomen officers supervised other tables. salt and spices were available at all tables. most people ate with their fingers, although there were knives and some spoons. drinking vessels were usually metal, horn, or wood. a marshall and ushers kept order. minstrels played musical instruments or recited histories of noble deeds or amusing anecdotes. reading aloud was a favorite pastime. the almoner collected the leftovers to distribute to the poor. 	in lesser houses people ate off trenchers [a four day old slab of coarse bread or a piece of wood with the middle scooped out like a bowl], or plates of wood or pewter [made from tin, copper, and lead]. they often shared plates and drinking vessels at the table. 	queen eleanor, a cultivated, intelligent, and educated lady from the continent, fostered culture and rewarded individual literary efforts, such as translations from latin, with grants of her own money. she patronized oxford and cambridge universities and left bequests to poor scholars there. she herself had read aristotle and commentaries thereon, and she especially patronized literature which would give cross-cultural perspectives on subjects. she was kind and thoughtful towards those about her and was also sympathetic to the afflicted and generous to the poor. she shared edward's career to a remarkable extent, even accompanying him on a crusade. she had an intimate knowledge of the people in edward's official circle and relied on the advice of two of them in managing her lands. she mediated disputes between earls and other nobility, as well as softened her husband's temper towards people. edward granted her many wardships and marriages and she arranged marriages with political advantages. she dealt with envoys coming to the court. her intellectual vitality and organized mentality allowed her to deal with arising situations well. edward held her in great esteem. she introduced to england the merino sheep, which, when bred with the english sheep, gave them a better quality of wool. she and edward often played games of chess and backgammon. 	farm efficiency was increased by the use of windmills in the fields to pump water and by allowing villeins their freedom and hiring them as laborers only when needed. customary service was virtually extinct. a man could earn d. for reaping, binding, and shocking into a pile, an acre of wheat. a strong man with a wife to do the binding could do this in a long harvest day. harvests were usually plentiful, with the exception of two periods of famine over the country due to weather conditions. then the price of wheat went way up and drove up the prices of all other goods correspondingly. the story of outlaw robin hood, who made a living by robbing, was passed around. this robin hood did not give to the poor. but generally, there was enough grain to store so that the population was no longer periodically devastated by famine. the population grew and all arable land in the nation came under the plough. the acre was standardized. about , the price of an ox was s., a heifer or cow s., a hide s. d., a cart horse or pounds. farm women went to nearby towns to sell eggs and dairy products, usually to town women. 	although manors needed the ploughmen, the carters and drivers, the herdsmen, and the dairymaid on a full-time basis, other tenants spent increasing time in crafts and became village carpenters, smiths, weavers or millers' assistants. trade and the towns grew. smiths used coal in their furnaces. 	money rents often replaced service due to a lord, such as fish silver, malt silver, or barley silver. the lord's rights are being limited to the rights declared on the extents [records showing service due from each tenant] and the rolls of the manor. sometimes land is granted to strangers because none of the kindred of the deceased will take it. often a manor court limited a fee in land to certain issue instead of being inheritable by all heirs. surveyors' poles marked boundaries declared by court in boundary disputes. this resulted in survey maps showing villages and cow pastures. 	the revival of trade and the appearance of a money economy was undermining the long-established relationship between the lord of the manor and his villeins. as a result, money payments were supplementing or replacing payments in service and produce as in martham, where thomas knight held twelve acres in villeinage, paid d. for it and d. in special aids. "he shall do sixteen working days in august and for every day he shall have one repast - viz. bread and fish. he shall hoe ten days without the lord's food - price of a day / d. he shall cart to norwich six cartings or shall give d., and he shall have for every carting one leaf and one lagena - or gallon - of ale. also for ditching d. he shall make malt / seams of barley or shall give d. also he shall flail for twelve days or give d. he shall plough if he has his own plough, and for every ploughing he shall have three loaves and nine herrings ... for carting manure he shall give ." 	another example is this manor's holdings, when d. would buy food for a day: "extent of the manor of bernehorne, made on wednesday following the feast of st. gregory the pope, in the thirty-fifth year of the reign of king edward, in the presence of brother thomas, keeper of marley, john de la more, and adam de thruhlegh, clerks, on the oath of william de gocecoumbe, walter le parker, richard le knyst, richard the son of the latter, andrew of estone, stephen morsprich, thomas brembel, william of swynham, john pollard, roger le glide, john syward, and john de lillingewist, who say that there are all the following holdings:... john pollard holds a half acre in aldithewisse and owes d. at the four terms, and owes for it relief and heriot. john suthinton holds a house and acres of land and owes s. d. at easter and michaelmas. william of swynham holds one acre of meadow in the thicket of swynham and owes d. at the feast of michaelmas. ralph of leybourne holds a cottage and one acre of land in pinden and owes s. at easter and michaelmas, and attendance at the court in the manor every three weeks, also relief and heriot. richard knyst of swynham holds two acres and a half of land and owes yearly s. william of knelle holds two acres of land in aldithewisse and owes yearly s. roger le glede holds a cottage and three roods of land and owes s. d. easter and michaelmas. alexander hamound holds a little piece of land near aldewisse and owes one goose of the value of d. the sum of the whole rent of the free tenants, with the value of the goose, is s. d. they say, moreover, that john of cayworth holds a house and acres of land, and owes yearly s. at easter and michaelmas; and he owes a cock and two hens at christmas of the value of d. and he ought to harrow for two days at the lenten sowing with one man and his own horse and his own harrow, the value of the work being d.; and he is to receive from the lord on each day three meals, of the value of d., and then the lord will be at a loss of d. thus his harrowing is of no value to the service of the lord. and he ought to carry the manure of the lord for two days with one cart, with his own two oxen, the value of the work being d.; and he is to receive from the lord each day three meals at the value as above. and thus the service is worth d. clear. and he shall find one man for two days, for mowing the meadow of the lord, who can mow, by estimation, one acre and a half, the value of the mowing of an acre being d.: the sum is therefore d. and he is to receive each day three meals of the value given above. and thus that mowing is worth d. clear. and he ought to gather and carry that same hay which he has cut, the price of the work being d. and he shall have from the lord two meals for one man, of the value of / d. thus the work will be worth / d. clear. and he ought to carry the hay of the lord for one day with a cart and three animals of his own, the price of the work being d. and he shall have from the lord three meals of the value of / d. and thus the work is worth / d. clear. and he ought to carry in autumn beans or oats for two days with a cart and three animals of his own, the value of the work being d. and he shall receive from the lord each day three meals of the value given above. and thus the work is worth d. clear. and he ought to carry wood from the woods of the lord as far as the manor, for two days in summer, with a cart and three animals of his own, the value of the work being d. and he shall receive from the lord each day three meals of the price given above. and thus the work is worth d. clear. and he ought to find one man for two days to cut heath, the value of the work being d., and he shall have three meals each day of the value given above: and thus the lord will lose, if he receives the service, d. thus that mowing is worth nothing to the service of the lord. and he ought to carry the heath which he has cut, the value of the work being d. and he shall receive from the lord three meals at the price of / d. and thus the work will be worth / d. clear. and he ought to carry to battle, twice in the summer season, each time half a load of grain, the value of the service being d. and he shall receive in the manor each time one meal of the value of d. and thus the work is worth d. clear. the totals of the rents, with the value of the hens, is s. d. the total of the value of the works is s. / d., being owed from the said john yearly. william of cayworth holds a house and acres of land and owes at easter and michaelmas s. rent. and he shall do all customs just as the aforesaid john of cayworth. william atte grene holds a house and acres of land and owes in all things the same as the said john. alan atte felde holds a house and acres of land (for which the sergeant pays to the court of bixley s.), and he owes at easter and michaelmas s., attendance at the manor court, relief, and heriot. john lyllingwyst holds a house and four acres of land and owes at the two terms s., attendance at the manor court, relief, and heriot. the same john holds one acre of land in the fields of hoo and owes at the two periods s., attendance, relief, and heriot. reginald atte denne holds a house and acres of land and owes at the said periods d., attendance, relief, and heriot. robert of northehou holds three acres of land at saltcote and owes at the said periods attendance, relief, and heriot. total of the rents of the villeins, with the value of the hens, s. total of all the works of these villeins, s. / d. and it is to be noted that none of the above-mentioned villeins can give their daughters in marriage, nor cause their sons to be tonsured, nor can they cut down timber growing on the lands they hold, without licence of the bailiff or sergeant of the lord, and then for building purposes and not otherwise. and after the death of any one of the aforesaid villeins, the lord shall have as a heriot his best animal, if he had any; if, however, he have no living beast, the lord shall have no heriot, as they say. the sons or daughters of the aforesaid villeins shall give, for entrance into the holding after the death of their predecessors, as much as they give of rent per year. sylvester, the priest, holds one acre of meadow adjacent to his house and owes yearly s. total of the rent of tenants for life, s. petronilla atte holme holds a cottage and a piece of land and owes at easter and michaelmas - ; also, attendance, relief, and heriot. walter herying holds a cottage and a piece of land and owes at easter and michaelmas d., attendance, relief, and heriot. isabella mariner holds a cottage and owes at the feast of st. michael d., attendance, relief, and heriot. jordan atte melle holds a cottage and / acres of land and owes at easter and michaelmas s., attendance, relief, and heriot. william of batelesmere holds one acre of land with a cottage and owes at the feast of st. michael d., and one cock and one hen at christmas of the value of d., attendance, relief, and heriot. john le man holds half an acre of land with a cottage and owes at the feast of st. michael s., attendance, relief, and heriot. hohn werthe holds one rood of land with a cottage and owes at the said term d., attendance, relief, and heriot. geoffrey caumbreis holds half an acre and a cottage and owes at the said term d., attendance, relief, and heriot. william hassok holds one rood of land and a cottage and owes at the said term d., attendance, relief, and heriot. the same man holds / acres of land and owes yearly at the feast of st. michael s. for all. roger doget holds half an acre of land and a cottage, which were those of r. the miller, and owes at the feast of st. michael d., attendance, relief, and heriot. thomas le brod holds one acre and a cottage and owes at the said term s., attendance, relief, and heriot. agnes of cayworth holds half an acre and a cottage and owes at the said term d., attendance, relief, and heriot. total of the rents of the said cottagers, with the value of the hens, s. d. and it is to be noted that all the said cottagers shall do as regards giving their daughters in marriage, having their sons tonsured, cutting down timber, paying heriot, and giving fines for entrance, just as john of cayworth and the rest of the villeins above mentioned." the above fines and penalties, with heriots and reliefs, are worth s. yearly. 	often one village was divided up among two or more manors, so different manorial customs made living conditions different among the villagers. villages usually had carpenters, smiths, saddlers, thatchers, carters, fullers, dyers, soapmakers, tanners, needlers, and brassworkers. each villein had his own garden in which to grow fruit and vegetables next to his house, a pig (which fattened more quickly than other animals), strips in the common field, and sometimes an assart [a few acres of his own to cultivate as he pleased on originally rough uncultivated waste land beyond the common fields and the enclosed common pastures and meadows]. most villeins did not venture beyond their village except for about ten miles to a local shrine or great fair a couple times a year. at the fair might be fish, honey, spices, salt, garlic, oil, furs, silks, canvas, soap, pans, pots, grindstones, coal, nails, tar, iron, shovels, brushes, pails, horses, and packsaddles. early apothecaries might sell potions there. men and women looking for other employment might attend to indicate their availability. 	under edward i, villages were required to mount watches to protect life and property and were called upon to provide one man for the army and to pay his wages. 	people told time by counting the number of rings of the church bell, which rang on the hour. every sunday, the villagers went to church, which was typically the most elaborate and centrally located building in the village. the parishioners elected churchwardens, who might be women. this religion brought comfort and hope of going to heaven after judgment by god at death if sin was avoided. on festival days, bible stories, legends, and lives of saints were read or performed as miracle dramas. they learned to avoid the devil, who was influential in lonely places like forests and high mountains. at death, the corpse was washed, shrouded, and put into a rectangular coffin with a cross on its lid. priests sang prayers amid burning incense for the deliverance of the soul to god while interring the coffin into the ground. men who did not make a will risked the danger of an intestate and unconfessed death. the personal property of a man dying intestate now went to the church as a trust for the dead man's imperiled soul instead of to the man's lord. 	unqualified persons entered holy orders thereby obtaining "benefit of clergy", and then returned to secular employments retaining this protection. 	a villein could be forever set free from servitude by his lord as in this example: "to all the faithful of christ to whom the present writing shall come, richard, by the divine permission, abbot of peterborough and of the convent of the same place, eternal greeting in the lord: let all know that we have manumitted and liberated from all yoke of servitude william, the son of richard of wythington, whom previously we have held as our born bondman, with his whole progeny and all his chattels, so that neither we nor our successors shall be able to require or exact any right or claim in the said william, his progeny, or his chattels. but the same william, with his whole progeny and all his chattels, shall remain free and quit and without disturbance, exaction, or any claim on the part of us or our successors by reason of any servitude forever. we will, moreover, and concede that he and his heirs shall hold the messuages, land, rents, and meadows in wythington which his ancestors held from us and our predecessors, by giving and performing the fine which is called merchet for giving his daughter in marriage, and tallage from year to year according to our will, - that he shall have and hold these for the future from us and our successors freely, quietly, peacefully, and hereditarily, by paying to us and our successors yearly s. sterling, at the four terms of the year, namely: at st. john the baptist's day s., at michaelmas s., at christmas s., and at easter s., for all service, exaction, custom, and secular demand; saving to us, nevertheless, attendance at our court of castre every three weeks, wardship, and relief, and outside service of our lord the king, when they shall happen. and if it shall happen that the said william or his heirs shall die at any time without an heir, the said messuage, land rents, and meadows with their appurtenances shall return fully and completely to us and our successors. nor will it be allowed to the said william or his heirs to give, sell, alienate, mortgage, or encumber in any way, the said messuage, land, rents, and meadows, or any part of them, by which the said messuage, land, rents, and meadows should not return to us and our successors in the form declared above. and if this should occur later, their deed shall be declared null, and what is thus alienated shall come to us and our successors... given at borough, for the love of lord robert of good memory, once abbot, our predecessor and maternal uncle of the said william, and at the instance of the good man, brother hugh of mutton, relative of the said abbot robert, a.d. , on the eve of pentecost." 	villeins who were released from the manorial organization by commutation of their service for a money payment took the name of their craft as part of their name, such as, for the manufacture of textiles, weaver, draper, comber, fuller, napper, cissor, tailor, textor; for metalwork, faber, ironmonger; for leatherwork, tanner; for woodwork, building and carpentry, carpenter, cooper, mason, pictor; for food production, baker, pistor. iron, tin, lead, salt, and even coal were providing increasing numbers of people with a livelihood. 	many new boroughs were founded as grants of market rights by the king grew in number. these grants implied the advantage of the king's protection. in fact, one flooded town was replaced with a new town planned with square blocks. it was the charter which distinguished the borough community from the other communities existing in the country. it invested each borough with a distinct character. the privileges which the charter conferred were different in different places. it might give trading privileges: freedom from toll, a guild merchant, a right to hold a fair. it might give jurisdictional privileges: a right to hold court with greater or less franchises. it might give governmental privileges: freedom from the burden of attending the hundred and county courts, the return of writs, which meant the right to exclude the royal officials, the right to take the profits of the borough, paying for them a fixed sum to the crown or other lord of the borough, the right to elect their own officials rather than them being appointed by the king or a lord, and the right to provide for the government of the borough. it might give tenurial privileges: the power to make a will of lands, or freedom from the right of a lord to control his tenants' marriages. it might give procedural privileges: trial by combat is excluded, and trial by compurgation is secured and regulated. these medieval borough charters are very varied, and represent all stages of development and all grades of franchise. boroughs bought increasing rights and freedoms from their lord, who was usually the king. 	in the larger towns, where cathedrals and public building were built, there arose a system for teaching these technical skills and elaborate handicraft, wood, metal, stained glass, and stone work. a boy from the town would be bound over in apprenticeship to a particular craftsman, who supplied him with board and clothing. the craftsman might also employ men for just a day. these journeymen were not part of the craftsman's household as was the apprentice. after a few years of an apprenticeship, one became a journeyman and perfected his knowledge of his craft and its standards by seeing different methods and results in various towns. he was admitted as a master of his trade to a guild upon presenting an article of his work worthy of that guild's standard of workmanship: his "masterpiece". women, usually wives of brethren only, could be admitted. the tailors' guild and the skinners' guild are extant now. 	when guilds performed morality plays based on bible stories at town festivals, there was usually a tie between the bible story and the guild's craft. for instance, the story of the loaves and fishes would be performed by the bakers' or fishmongers' guild. the theme of the morality play was the fight of the seven cardinal virtues against the seven deadly sins for the human soul, a life- long battle. the number seven was thought to have sacred power; there were seven sacraments, seven churches in the biblical apocalypse, seven liberal arts and seven devilish arts. the seven sacraments were: baptism, confirmation, lord's supper, penance, orders, matrimony, and extreme unction. 	a borough was run by a mayor elected usually for life. by being members of a guild, merchant-traders and craftsmen acquired the legal status of burgesses and had the freedom of the borough. each guild occupied a certain ward of the town headed by an alderman. the town aldermen, who were unpaid, made up the town council, which advised the mayor. the mayor of london received pounds for hospitality, but in small towns, s. sufficed. often there were town police, bailiffs, beadles [messengers], a town crier, and a town clerk. london offices included recorder, prosecutor, common sergeant, and attorneys. in the center of town were the fine stone houses, a guildhall with a belfry tower, and the marketplace - a square or broad street, where the town crier made public announcements with bell or horn. here too was the ducking stool for scandalmongers and the stocks which held offenders by their legs and perhaps their hands to be scorned and pelted by bystanders with, for instance, rotten fruit and filth. no longer were towns dominated by the local landholders. 	in london there were royal princes, great earls, barons, knights, and female representatives of the peerage (counted in ). there was a wall with four towers surrounding the white tower, and this castle was known as the tower of london. another wall and a moat were built around it and it has reached its final form. hovels, shops, and waste patches alternated with high walls and imposing gateways protecting mansions. the mansions had orchards, gardens, stables, brewhouses, bakeries, guardrooms, and chapels. london streets were paved with cobbles and sand. each citizen was to keep the street in front of his tenement in good repair. later, each alderman appointed four reputable men to repair and clean the streets for wages. the repair of bishopsgate was the responsibility of the bishop because he received one stick from every cart of firewood passing through it. rules as to tiled roofs were enforced. a ordinance required all taverns to close at curfew, an hour that fluctuated. prostitutes were expelled from the city because the street with their bawdy houses had become very noisy. women huckster-retailers, nurses, servants, and loose women were limited to wearing hoods furred with lambskin or rabbitskin and forbidden to wear hoods furred with vair or miniver [grey or white squirrel] in the guise of good ladies. an infirmary for the blind was founded by a mercer, who became its first prior. 	the london mayoral elections were hotly fought over until in , when the aldermen began to act with the aid of an elected council in each of the twenty-four wards, which decentralized the government of the city. each ward chose certain of its inhabitants to be councilors to the aldermen. this council was to be consulted by him and its advice to be followed. in , the aldermen for the first time included a fishmonger. the fishmongers were the only guild at this time, besides the weavers, which had acquired independent jurisdiction by the transfer of control of their weekly hallmote from a public official to themselves. craftsmen began to take other public offices too. by the reign of edward ii, all the citizens were obliged to be enrolled among the trade guilds. a great quarrel between the weaver's guild and the magistracy began the control of the city by the craft guilds or city companies. admission to freedom of the city [citizenship] was controlled by the citizens, who decided that no man of english birth, and especially no english merchant, who followed any specific mistery [french word for a calling or trade] or craft, was to be admitted to the freedom of the city except on the security of six reputable men of that mistery or craft. no longer could one simply purchase citizenship. apprentices had to finish their terms before such admission, and often could not afford the citizenship fee imposed on them. only freemen could sell wares in the city, a custom of at least two hundred years. 	as economic activity in london became more complex and on a larger scale in the s, some craftsmen were brought under the control of other crafts or merchants. the bakers fell under the control of the wholesale grain dealers; the weavers became pieceworkers for rich cloth merchants; the blademakers and shearers were employed by cutlers; coppersmiths were controlled by girdlers; fullers were controlled by entrepreneurial dyers; and the painters, joiners, and lorimers were controlled by the saddlers. guilds moved their meeting places from churches, which were now too small, to guild halls. the controlling officers of the large guilds met at the guildhall, which became the seat of mayoral authority. london streets in existence by this time include cordwainer, silver, cannon (candlewick), and roper. lanes included ironmonger, soper, spurrier, lad (ladles), distaff, needles, mede, limeburner, and hosier. fighting among groups was common in london. there was a street fight on a large scale in between the saddlers and a coalition of joiners, painters, and lorimers (makers of metal work of saddles). much blood was shed in the street battle between the skinners and the fishmongers in . there was a city ordinance that no one except royal attendants, baronial valets, and city officials were to go about armed. disputes among neighbors that were brought to court included the use and upkeep of party walls, blocked and overflowing gutters, cesspits too close to a neighbor's property, noisy tenants, loss of light, and dangerous or overhanging structures. 	in , a goldsmith was chief assay-master of the king's mint and keeper of the exchange at london. the king gave the goldsmiths' company the right of assay [determination of the quantity of gold or silver in an object] and required that no vessels of gold or silver should leave the maker's hands until they had been tested by the wardens and stamped appropriately. in , goldsmith william farrington bought the soke of the ward containing the goldsmiths' shops. it remained in his family for years. a patent of empowered the guild to elect a properly qualified governing body to superintend its affairs, and reform subjects of just complaint. it also prescribed, as a safeguard against a prevailing fraud and abuse, that all members of the trade should have their standing in cheapside or in the king's exchange, and that no gold or silver should be manufactured for export, except that which had been bought at the exchange or of the trade openly. 	some prices in london were: large wooden bedstead s., a small bedstead s., a large chest for household items s., feather beds - s., a table s., a chair - d., cloth gown lined with fur - s., plain coats and overcoats - s., caps - d., a pair of pen- cases with inkhorn d., a skin of parchment d., sheets of paper d, a carcass of beef s., a pig s., a swan s., and a pheasant s. there was a problem with malefactors committing offenses in london and avoiding its jurisdiction by escaping to southwark across the thames. so southwark was given a royal charter which put it under the jurisdiction of london for peace and order matters and allowed london to appoint its tax collector. london forbade games being played because they had replaced practice in archery, which was necessary for defense. 	a royal inquiry into the state of the currency indicated much falsification and coin-clipping by the jews and others. about jews and many englishmen were found guilty and hanged. the rest of the jews, about , , were expelled in . this was popular with the public because of the abuses of usury. there had been outbreaks of violence directed at the jews since about . the king used italian bankers instead because he thought them more equitable in their dealings. the lepers were driven out of london in . exports and imports were no longer a tiny margin in an economy just above the subsistence level. exports were primarily raw wool and cloth, but also grain, butter, eggs, herring, hides, leather goods such as bottles and boots, embroideries, metalware, horseshoes, daggers, tin, coal, and lead. imported were wine, silk, timber, furs, rubies, emeralds, fruits, raisins, currents, pepper, ginger, cloves, rice, cordovan leather, pitch, hemp, spars, fine iron, short rods of steel, bow-staves of yew, tar, oil, salt, cotton (for candlewicks), and alum (makes dyes hold). ships which transported them had one or two masts upon which sails could be furled, the recently invented rudder, and a carrying capacity of up to tuns [about one ton]. many duties of sheriffs and coroners were transferred to county landholders by commissions. in coastal counties, there were such commissions for supervising coastal defense and maintaining the beacons. each maritime county maintained a coast guard, which was under the command of a knight. ports had well-maintained harbors, quays, and streets. by there was an office of admiral of the fleet of the ships of the southern ports. 	women could inherit land in certain circumstances. some tenants holding land in chief of the king were women. 	regulation of trade became national instead of local. trade was relatively free; almost the only internal transportation tolls were petty portages and viages levied to recoup the expense of a bridge or road which had been built by private enterprise. responsibility for the coinage was transferred from the individual moneyers working in different boroughs to a central official who was to become master of the mint. the round half penny and farthing [ / penny] were created so that the penny needn't be cut into halves and quarters anymore. 	edward i called meetings of representatives from all social and geographic sectors of the nation at one parliament to determine taxes due to the crown. he declared that "what touches all, should be approved by all". he wanted taxes from the burgesses in the towns and the clergy's ecclesiastical property as well as from landholders. he argued to the clergy that if barons had to both fight and pay, they who could do no fighting must at least pay. when the clergy refused to pay, he put them outside the royal protection and threatened outlawry and confiscation of their lands. then they agreed to pay and to renounce all papal orders contrary to the king's authority. 	the model parliament of was composed of the three communities. the first were the lords, which included seven earls and forty-one barons. because of the increase of lesser barons due to a long national peace and prosperity, the lords attending were reduced in numbers and peerage became dependent not on land tenure, but on royal writ of summons. the great barons were chosen by the king and received a special summons in their own names to the council or parliament. others were called by a general summons. the second community was the clergy, represented by the two archbishops, bishops from each of eighteen dioceses, and sixty-seven abbots. the third community was the commons. it was composed of two knights elected by the suitors who were then present at the county court, two burgesses elected by principal burgesses of each borough, and two representatives from each city. the country knights had a natural affinity with the towns in part because their younger sons sought their occupation, wife, and estate there. also, great lords recruited younger brothers of yeoman families for servants and fighting men, who ultimately settled down as tradesmen in the towns. the country people and the town people also had a community of interest by both being encompassed by the county courts. the peasants were not represented in the county courts nor in parliament. one had to have land to be entitled to vote because the landowner had a stake in the country, a material security for his good behavior. 	parliaments without knights and burgesses still met with the king. but it was understood that no extraordinary tax could be levied without the knights and burgesses present. ordinary taxes could be arranged with individuals, estates, or communities. the lower clergy ceased to attend parliament and instead considered taxes to pay to the king during their national church convocations, which were held at the same time as parliament. for collection purposes, their diocesan synod was analogous to the count court. the higher clergy remained in parliament because they were feudal vassals of the king. 	edward's council was the highest tribunal. it comprised the chancellor, treasurer and other great officers of state, the justices of the three courts, the master or chief clerks of the chancery, and certain selected prelates and barons. the council assisted the king in considering petitions. most petitions to the king were private grievances of individuals, including people of no social rank, such as prisoners. other petitions were from communities and groups, such as religious houses, the two universities, boroughs, and counties. these groups sometimes formed alliances in a common cause. women sometimes petitioned. from , the petitions were placed in four stacks for examination by the king and council, by the chancery, by the exchequer, or by the justices. many hours were spent hearing and answering petitions. from , the petitions were presented to the king in full parliament. 	the king still exercised a power of legislation without a full parliament. he might in his council issue proclamations. the chief justices still had, as members of the king's council, a real voice in the making of laws. the king and his justices might, after a statute has been made, put an authoritative interpretation upon it. royal proclamations had the same force as statutes while the king lived; sometimes there were demands that certain proclamations be made perpetual by being embodied in statutes, e.g. fixing wages. there was no convention that agreement or even the presence of representatives was required for legislation. the idea that the present can bind the absent and that the majority of those present may outvote the minority was beginning to take hold. edward i's councilors and justices took an oath to give, expedite, and execute faithful counsel; to maintain, recover, increase, and prevent the diminution of, royal rights; to do justice, honestly and unsparingly; to join in no engagements which may present the councilor from fulfilling his promise; and to take no gifts in the administration of justice, save meat and drink for the day. these were in addition to other matters sworn to by the councilors. 	parliament soon was required to meet at least once a year at the great hall at westminster located beside the royal palace. london paid its representatives s. per day for their attendance at parliament. from the time of edward ii, the counties paid their knight- representatives s. daily, and the boroughs paid their burgess- representatives s. daily. when it convened, the chancellor sat on the left and the archbishop of canterbury on the right of the king. just below and in front of the king his council sits on wool sacks brought in for their comfort from wool stored nearby. it answers questions. behind them on the wool sacks sit the justices, who may be called upon to give legal advice, e.g. in framing statutes. then come the spiritual and lay barons, then the knights, and lastly the elected burgesses and citizens. lawmaking became a function of parliament, of which the king's council is a part, instead of a function of the king with his council and justices. the common people now had a voice in lawmaking, though legislation could be passed without their consent. the first legislation proposed by the commons was alteration of the forest laws governing the royal pleasure parks. such a statute was passed in a bargain for taxes of a percentage of all movables, which were mostly foodstuffs and animals. the king offered to give up the royal right to tax merchandise for a new tax: customs on exports. the barons and knights of the county agreed to pay an th, the burgesses, a th, and the clergy a th on their other movables. in time, several boroughs sought to be included in the county representation so they could pay the lower rate. this new system of taxation began the decline of the imposition of feudal aids, knights' fees, scutages, carucage, and tallage, which had been negotiated by the exchequer with the reeves of each town, the sheriff and county courts of each county, and the bishops of each diocese. 	the staple [depot or mart, from the french "estaple"] system began when the export of wool had increased and parliament initiated customs duties of s. d. on every sack of wool, woolfells [sheepskin with wool still on it], or skins exported in . these goods had to be assessed and collected at certain designated ports. certain large wool merchants, the merchants of the staple, were allowed to have a monopoly on the purchase and export of wool. imports of wine were taxed as tunnage as before, that is there was a royal right to take from each wine ship one cask for every ten at the price of s. per cask. 	in , edward i confirmed the magna carta and other items. judgments contrary to magna carta were nullified. the documents were to be read in cathedral churches as grants of edward and all violators were to be excommunicated. he also agreed not to impose taxes without the consent of parliament after baronial pressure had forced him to retreat from trying to increase, for a war in france, the customs tax on every exported sack of wool to s. from the s. d. per sack it had been since . the customs tax was finally fixed at s. for every sack of wool, s. for each tun [casket] of wine, and d. for every pound's worth of other goods. the "tenths and fifteenths" tax levied on income from movables or chattels became regular every year. edward also confirmed the forest charter, which called for its earlier boundaries. and he agreed not to impound any grain or wool or and like against the will of the owners, as had been done before to collect taxes. also, the special prises or requisitions of goods for national emergency were not to be a precedent. lastly, he agreed not to impose penalties on two earls and their supporters for refusing to serve in the war in france when the king did not go. 	teh magna carta is the first statute. from , statutes were recorded in a statute roll as they were enacted. 	by the end of the s, the king's wardrobe, where confidential matters such as military affairs were discussed in his bedroom, became a department of state with the king's privy seal. the keeper of the privy seal was established as a new office by edward i in . the wardrobe paid and provisioned the knights, squires, and sergeants of the king and was composed mostly of civil servants. it traveled with the king. the crown's treasure, plate, tents, hangings, beds, cooking utensils, wine, and legal and financial rolls were carried on pack horses or in two-wheeled carts drawn by oxen, donkeys, or dogs. the people in the entourage rode horses or walked. the other two specialized administrative bodies were the exchequer, which received most of the royal revenue and kept accounts at westminster, and the chancery, which wrote royal writs, charters, and letters, and kept records. 	the chief functions of administration in the s were performed by the council, chancery, wardrobe, chamber [room off wardrobe for dressing and for storage], and exchequer. many of the chancellors had come from the wardrobe and chamber. in time, the chancellor ceased to be a part of the king's personal retinue and to follow the court. the chancery became primarily a department of central administration rather than a secretariat and record-keeping part of the royal household. the king used a privy seal to issue directives to the chancery. edward iii made some merchants earls and appointed them to be his ministers. he did not summon anyone to his council who did not have the confidence of the magnates [barons, earls, bishops, and abbots]. 	there was a recoinage due to debasement of the old coinage. this increased the number of coins in circulation. the price of wheat went from about s. in to about s. per quarter in . also the price of an ox went from s. to s. then there were broad movements of prices, within which there were wide fluctuations, largely due to the state of the harvest. from to , there was runaway inflation. in some places, both grain and livestock prices almost doubled between and . wheat prices peaked at s. d. a quarter in the famine year of . in , prices dropped and remained low for twenty years. the poor were hurt by high prices and the lords of the manors were hurt by low prices. 	as before, inadequate care and ignorance of nutrition caused many infant deaths. accidents and disease were so prevalent that death was always near and life insecure. many women died in childbirth. 	edward i always sought the agreement of parliament before assembling an army or taking actions of war, and parliamentary consent came to be expected for such. he completed the conquest and annexation of wales in . the feudal army was summoned for the last time in the year war with france, which began in . in it the english longbow was used to pierce french knights' armor. there had been much competition between the strength of arrows to pierce and the heaviness of armor to resist. guns and cannon with gunpowder were introduced in . a system to raise an army by contract was developed. contracts were made with nobles, knights, or esquires who undertook to enlist an agreed number of armored men-at-arms and archers, who were paid wages. the king provided transport for each contractor and his retinue, baggage, and horses. the title of "knight" now resumed its military character as well as being a social rank. 	after edward i died in , there was a period of general lawlessness and contests for power between earls and barons and the irresponsible king edward ii, who was not a warrior king. he eventually was assassinated. also in , parliament required the king to obtain its consent for any exchange or alteration of the currency. 	by , the guilds of london had become so powerful that they extracted a charter from the king that to be a citizen of london one had to be a member of a guild. 	by , scholars, the nobility, and the clergy had reading eyeglasses, which had been invented in italy, probably by the glass blowers. italy was famous for its glasswork. the first eyeglasses were fabricated by pouring molten glass into curved molds. the actual shape was difficult to control because thermal expansion and contraction resulted in bubbles and other optical imperfections. 	as of , importing foreign cloth or fur, except for use by the king's family, was prohibited, as was the export of unwoven wool. later, this was relaxed and a customs tax of % was imposed on wool exported. 	foreign cloth workers were allowed by statute to come to live in the nation, be granted franchises, and be in the king's protection. but no cloth was to be exported until it was fulled. during the reign of edward iii, flanders weavers were encouraged to come to england to teach the english how to weave and finish fine cloth. a cloth industry grew with all the manufacturing processes under the supervision of one capitalist manufacturer, who set up his enterprise in the country to avoid the regulations of the towns. the best places were hilly areas where there were many streams and good pasture for flocks of sheep. he hired shearers to cut the nap as short as possible to give a smooth surface, then spinsters to card and spin the wool in their country cottages, then weavers, and then fullers and dyers to come to fulling mills established near streams for their waterpower. fulling became mechanized as heavy wooden hammers run by water- power replaced feet trampling the cloth covered with soap or fuller's clay. the shaft loom was a technological advance in weaving. this loom was horizontal and its frames, which controlled the lifting of the warp threads, could each be raised by a foot treadle. this left both hands free to throw and catch the shuttle attached to the weft thread from side to side through the warp. also many more weaving patterns became possible through the use of different thread configurations on the frames. 	in , the commons forced king edward iii and council to approve their petition when parliament was still in session so that they would draft the legislation in true accordance with the petition. this had not been done when drafting had been done after parliament ended, when the phrase "saving the prerogatives of the king" was often added. also the lords and commons consulted each other and joined in petitions. but they usually stated their conclusions to the king separately. it was considered a burden rather than a privilege to attend parliament and elections for such were not often contested. they were conducted according to local custom until . 	in , the commons voted a tax of / th on movables for three years with the proviso that it be spent only on the war against scotland. this began the practice of appropriation of funds. in , began the practice of appointing treasurers of the subsidies to account to parliament for both receipts and disbursements. 	alien merchants were under the king's special protection. in return for paying extra import and export duties, edward iii gave alien merchants full rights of trade, travel, and residence in england free of all local tolls and restrictions, and guaranteed a fair hearing of their commercial and criminal cases in special pie powder (after french "pie poudrous" or dusty feet) courts at fairs. - the law - 	edward i remodeled the law in response to grievances and to problems which came up in the courts. the changes improved the efficiency of justice and served to accommodate it to the changing circumstances of the social system. 	"no man by force of arms, malice or menacing shall disturb anyone in making free election [of sheriffs, coroners, conservators of the peace by freeholders of the county]." 	"no city, borough, town, nor man shall be amerced without reasonable cause and according to the severity of his trespass. that is, every freeman saving his freehold, a merchant saving his merchandise, a villein saving his wainage [implements of agriculture], and that by his peers." 	no distress shall be taken of ploughing-cattle or sheep. 	no loan shall be made for interest. 	if an heir who is a minor is married off without the consent of the guardian, the value of the marriage will be lost and the wrongdoer imprisoned. if anyone marries off an heir over years of age without the consent of the guardian, the guardian shall have double the value of the marriage. moreover, anyone who has withdrawn a marriage shall pay the full value thereof to the guardian for the trespass and make amends to the king. and if a lord refuses to marry off a female heir of full age and keep her unmarried because he covets the land, then he shall not have her lands more than two years after she reaches full age, at which time she can recover her inheritance without giving anything for the wardship or her marriage. however, if she maliciously refuses to be married by her lord, he may hold her land and inheritance until she is the age of a male heir, that is, years old and further until he has taken the value of the marriage. 	aid to make one's son a knight or marry off his daughter of a whole knight's fee shall be taken s., and s. [yearly income from] land held in socage s. [ %], and of more, more; and of less, less; after the rate. and none shall levy such aid to make his son a knight until his son is years old, nor to marry his daughter until she is seven year old. 	a conveyance of land which is the inheritance of a minor child by his guardian or lord to another is void. 	dower shall not abate because the widow has received dower of another man unless part of the first dower received was of the same tenant and in the same town. but a woman who leaves her husband for another man is barred from dower. 	a tenant for a term of years who has let land from a landlord shall not let it lie waste, nor shall a landlord attempt to oust a tenant for a term of years by fictitious recoveries. 	when two or more hold wood, turfland, or fishing or other such thing in common, wherein none knows his several, and one does waste against the minds of the others, he may be sued. 	lands which are given to a man and his wife upon condition that if they die without heirs, the land shall revert to the donor or his heir, may not be alienated to defeat this condition. 	if a man takes land in marriage with a wife, and she dies before him, the land will revert to the donor or his heir, unless the couple has a child, in which case the husband will have the land by the courtesy of the nation for his life before it reverts to the donor or his heir. 	young salmon shall not be taken from waters in the spring. 	the ecclesiastical law had a doctrine for women-covert, i.e. women under the protection or coverture of a husband. it held that chattels of a woman who married vested in her husband, but he could not dispose of them by will. her jewelry, but not her apparel, could go to his creditors if his assets didn't cover his debts. if she was a merchant when she married, she could still sell her goods in the open market. the husband also had the right to the rents and profits from his wife's real estate, but not the real estate itself, unless by the birth of a child he became tenant for life by courtesy. only the father, but not the mother had authority over their children. a father had a right to his child's services, and could sue a third party for abducting, enticing away, or injuring the child, just as he could for his servants. a husband was liable for the debts of his wife, even if incurred before the marriage. he was answerable for her torts and trespasses, except for battery. for this reason, he was allowed to chastise her, restrain her liberty for gross misbehavior, and punish her by beating for some misdemeanors. but the courts would protect her from death, serious bodily harm, or his failure to supply her the necessities of life. promises under oath by married women were not recognized. a conveyance or agreement of a married woman was void. these principles held only if she was under the protection of her husband, i.e. a woman-covert, and not if they lived separately, for instance if he went to sea. if separated, she had a right to alimony from him to maintain herself. 	a free tenant may alienate his land freely, but if the alienation was for an estate in fee simple [to a man and his heirs], the person acquiring the land would hold of the land's lord and not of the person alienating the land. (this halted the growth of subinfeudation and caused services as well as incidents of aids, relief, escheat, wardship, and marriage to go directly to the chief lord. it also advantaged the crown as overlord, which then acquired more direct tenants.) 	one may create an estate which will descend in unbroken succession down the line of inheritance prescribed in the original gift as long as that line should last, instead of descending to all heirs. this was called a fee simple conditional holding of land. the successive occupants might draw the rents and cut the wood, but on the death of each, his heir would take possession of an unencumbered interest, unfettered by any liability for the debt of his ancestor or by any disposition made by him during his lifetime e.g. a wife's estate in dower or a husband's estate in courtesy. if there was no issue, it reverted to the original donor. this curtailed the advantage of tenants of the greater barons who profited by increased wardships and reliefs from subinfeudation from subdivision and better cultivation of their land while still paying the greater barons fixed sums. this statute that protected reversionary estates incidentally established a system of entails. this new manner of holding land: "fee tail", is in addition to the concepts of land held in fee simple and land held for life. the donor could give directions that an estate of inheritance go to a man or woman and certain classes of particular heirs rather than reverting to himself. a fee tail was often given to a man and the issue of his body. no donee or nor his heirs could alienate the land held in fee tail.interests in remainder or reversion of estates in land replaced the lord's tenurial right to succeed to land by escheat if his tenant dies without heirs. 	anyone disseising another whereby he also robs him or uses force and arms in the disseisin shall be imprisoned and fined. the plaintiff shall recover seisin and damages. 	"all must be ready at the command and summons of sheriffs, and at the cry of the country, to sue and arrest felons as necessary as well within franchise as without." otherwise, he shall be fined. a lord defaulting shall lose his franchise to the king. a bailiff defaulting shall be imprisoned a year as well as fined, or be imprisoned two years if he cannot pay the fine. a sheriff, coroner, or any other bailiff who conceals a felony will be imprisoned for a year and pay a fine, or be imprisoned for three years if he cannot pay the fine. 	villeins must report felons, pursue felons, serve in the watch, and clear growth of concealing underwood from roads. they must join the military to fight on the borders when called. desertion from the army is punishable. 	accessories to a crime shall not be declared outlaw before the principal is proven guilty. (this made uniform the practice of the various counties.) 	only those imprisoned for the smaller offenses of a single incidence of petty larceny, receipt of felons, or accessory to a felony, or some other trespass not punishable by life or limb shall be let out by sufficient surety. prisoners who were outlawed or escaped from prison or are notorious thieves or were imprisoned for felonious house burning, passing false money, counterfeiting the king's seal, treason touching the king himself, or other major offenses or have been excommunicated by the church may not be released. 	killing in self-defense and by mischance shall be pardoned from the king's indictment. killing by a child or a person of unsound mind shall be pardoned from the king's indictment. (but a private accuser can still sue.) 	any man who ravishes [abducts] any woman without her consent or by force shall have the criminal penalty of loss of life or limb. (the criminal penalty used to be just two years in prison.) 	trespasses in parks or ponds shall be punished by imprisonment for three years and a fine as well as paying damages to the wronged person. after his imprisonment, he shall find a surety or leave the nation. 	"forasmuch as there have been often times found in the country devisors of tales, where discord, or occasion of discord, has many times arisen between the king and his people, or great men of this realm; for the damage that has and may thereof ensue, it is commanded, that from henceforth none be so hardy to tell or publish any false news or tales, whereby discord or occasion of discord or slander may grow between the king and his people, or the great men of the realm." anyone doing so shall be imprisoned until he brings into the court the first author of the tale. 	a system of registration and enforcement of commercial agreements was established by statute. merchants could obtain a writing of a debt sealed by the debtor and authenticated by royal seal or a seal of a mayor of certain towns, and kept by the creditor. failure to pay a such a debt was punishable by imprisonment and, after three months, the selling of borough tenements and chattels and of county lands. during the three months, the merchant held this property in a new tenure of "statute merchant". (prior to this, it was difficult for a foreign merchant to collect a debt because he could not appear in court which did not recognize him as one of its proper "suitors" or constituents, so he had to trust a local attorney. also, the remedy was inadequate because the history of the law of debt was based on debt as a substitute for the blood feud, so that failure to pay meant slavery or death. also a debtor's land was protected by feudal custom, which was contrary to the idea of imposing a new tenant on a lord.) 	"in no city, borough, town, market, or fair shall a person of the realm be distrained for a debt for which he is not the debtor or pledge." 	anyone making those passing with goods through their jurisdiction answer to them in excess of their jurisdiction shall be grievously amerced to the king. 	no market town shall take an outrageous toll contrary to the common custom of the nation. 	since good sterling money has been counterfeited with base and false metal outside the nation and then brought in, foreigners found in the nation's ports with this false money shall forfeit their lives. anyone bringing money into the nation must have it examined at his port of entry. payments of money shall be made only by coin of the appropriate weight delivered by the warden of the exchange and marked with the king's mark. (a currency exchange was established at dover for the exchange of foreign currency for english sterling.) 	the silver in craftwork must be sterling and marked with the leopard's head. the gold in craftwork must meet the standard of the touch of paris. 	the assize of bread and ale had been and was enforced locally by local inspectors. now, the crown appointed royal officers for the gauge of wines and measurement of cloths. edicts disallowed middlemen from raising prices against consumers by such practices as forestalling [intercepting goods before they reached the market and then reselling them] or engrossing [buying a large supply of a commodity to drive up the price] and price regulation was attempted. for instance, prices were set for poultry and lamb, in a period of plenty. maximum prices were set for cattle, pigs, sheep, poultry, and eggs in , but these prices were hard to enforce. in london examples of prices set are: best hen d. q., best wild goose d., best hare d., best kid d., best lamb d., best fresh herrings for d., best pickled herrings for d., best haddock d., best fresh salmon s. 	freemen may drive their swine through the king's demesne forest to feed in their own woods or elsewhere. no man shall lose his life or limb for killing deer in the forest, but instead shall be grievously fined or imprisoned for a year. 	the forest charter allowed a man to cut down and take wood from his own woods in the king's forest to repair his house, fences, and hedges. he may also enclose his woods in the king's forest with fences and hedges to grow new trees and keep cattle and beasts therefrom. after seven years growth of these new trees, he may cut them down for sale with the king's permission. 	each borough has its own civil and criminal ordinances and police jurisdiction. borough courts tended to deal with more laws than other local courts because of the borough's denser populations, which were composed of merchants, manufacturers, and traders, as well as those engaged in agriculture. only borough courts have jurisdiction over fairs. in some boroughs the villein who resides for a year and a day becomes free. there are special ordinances relating to apprentices. there are sometimes ordinances against enticing away servants bound by agreement to serve another. the wife who is a trader is regarded in many places as a feme sole [single woman rather than a feme covert [woman-covert], who was under the protection of a husband]. there may be special ordinances as to the liability of masters for the acts of their apprentices and agents, or as to brokers, debt, or earnest money binding a bargain. the criminal and police jurisdiction in the borough was organized upon the same model as in the country at large, and was controlled by the king's courts upon similar principles, though there are some survivals of old rules, such as mention of the bot and the wer. the crimes committed are similar to those of the country, such as violence, breaches of the assize of bread and beer, stirring up suits before the ecclesiastical courts, digging up or obstructing the highway, not being enrolled in a tithing, encroachments upon or obstructions of rights of common. the most striking difference with the country at large are the ordinances on the repair or demolition of buildings, encroachments on another's building, fires, and nuisances. specimens of other characteristic urban disputes are: selling bad food, using bad materials, unskillful or careless workmanship, fraudulent weights and measures, fraud in buying and selling, forestalling or regrating [buying in one market to resell in another market], acting in a way likely to endanger the liberties of the borough, usury, trading without being a citizen, assisting other unlicensed persons to trade, unlawfully forming a guild, complaints against various guilds in which trade might be organized. since the ordinances were always liable to be called in question before the king's courts, they tended to become uniform and in harmony with the principles of the common law. also, trading between boroughs kept them knowledgeable about each other's customs and conditions for trade, which then tended to standardize. boroughs often had seals to prove communal consent and tended to act as a corporate body. 	borough ordinances often include arson such as this one: "and if a street be set on fire by any one, his body shall be attached and cast into the midst of the fire." robbery by the miller was specially treated by an ordinance that "and if the miller be attainted [found guilty] of robbery of the grain or of the flour to the amount of d., he shall be hanged from the beam in his mill." 	in london, an ordinance prescribed for bakers for the first offense of making false bread a forfeiture of that bread. for the second offense was prescribed imprisonment, and for the third offense placement in the pillory. a london ordinance for millers who caused bread to be false prescribed for them to be carried in a tumbrel cart through certain streets, exposed to the derision of the people. 	by statute, no one may make a gift or alienation of land to the church. an attempt to do so will cause the land to escheat to the lord, or in his default, to the king. religious houses may not alienate land given to them by the king or other patrons because such gifts were for the sake of someone's soul. an attempt to do so will cause the land to revert to the donor or his heir. if the church did not say the prayers or do the other actions for which land was given to it, the land will revert to the donor or his heir. land may not be alienated to religious bodies in such a way that it would cease to render its due service to the king. (the church never died, never married, and never had children.) the church shall send no money out of the nation. (this statute of mortmain was neutralized by collusive lawsuits in which the intended grantor would sue the intended grantee claiming superior title and then would default, surrendering the land to the intended grantee by court judgment.) 	"concerning wrecks of the sea, where a man, a dog, or a cat escape alive out of the ship, that such ship nor barge nor anything within them shall be deemed wreck, but the goods shall be saved and kept by view of the sheriff, coroner, or the king's bailiff". if anyone proves the goods were his within a year and a day, they shall be restored to him without delay. otherwise, they shall be kept by the king. "and where wreck belongs to one other than the king, he shall have it in like manner". if he does otherwise, he shall be imprisoned and pay damages and fine. 	some statutes applied only to kent county, which had a unique position between london and the continent. money flowed between england and the continent through kent. so kent never developed a manorial system of land holding, but evolved from a system of clans and independent villages directly into a commercial system. in kent, all men are free and may give or sell their lands without permission of their lords, as before the conquest. 	one could sell or give away his land without the consent of one's lord. the services of the land, however, could only be sold to the chief lord. inheritance of land was to all sons by equal portions, and if there were no sons, then to all daughters in equal portions. the eldest brother has his choice of portion, then the next oldest, etc. the goods of a deceased person were divided into three parts after his funeral expenses and debts were paid. one third went to the surviving spouse. one third went to the deceased's sons and daughters. one third could be disposed by will of the decedent. if there were no children, one half went to the spouse and one half went according to will. if an heir was under years old, his next of kin to whom inheritance could not descend was to be his guardian. a wife who remarried or bore a child lost her dower land. a husband lost his dower if he remarried. if a tenant withheld rent or services, his lord could seek award of court to find distress on his tenement and if he could find none, he could take the tenement for a year and a day in his hands without manuring it. it the tenant paid up in this time, he got the tenement back. if he didn't within a year and a day, however, the lord could manure the land. a felon forfeited his life and his goods, but not his lands or tenements. a wife of a felon had the dower of one half or her husband's lands and tenements. 	the common law recognized the tort of false imprisonment if a man arrested as a felon, a person who was not a felon. - judicial procedure - 	the writ of quo warranto [by what right] is created, by which all landholders exercising jurisdictions must bring their ancestors' charters before a traveling justice for the common pleas for examination and interpretation as to whether they were going beyond their charters and infringing upon the jurisdiction of the royal court. as a result, many manor courts were confined to manorial matters and could no longer view frankpledge or hear criminal cases, which were reserved for the royal courts. in the manor courts which retained criminal jurisdiction, there was a reassertion of the obligation to have present a royal coroner, whose duty it was to see that royal rights were not infringed and that the goods of felons were given to the crown and not kept by the lords. 	the supreme court was the king and his council in parliament. it heard the most important causes, important because they concern the king, or because they concern very great men (e.g. treason), or because they involve grave questions of public law, or because they are unprecedented. it has large, indefinite powers and provides new remedies for new wrongs. the office of great justiciar disappears and the chancellor becomes the head of the council. after the council were the royal courts of the king's bench, common pleas, and the exchequer, which had become separate, each with its own justices and records. the court of common pleas had its own chief justice and usually met at westminster. this disadvantaged the small farmer, who would have to travel to westminster to present a case. the king's council maintained a close connection with the court of the king's bench, which heard criminal cases and appeals from the court of common pleas. it traveled with the king. there were many trespass cases so heard by it in the reign of edward i. the king's council did a great deal of justice, for the more part criminal justice. it was supported by the populace because it dealt promptly and summarily with rebellion or some scandalous acquittal of a notorious criminal by bribed or partial jurors, and thereby prevented anarchy. its procedure was to send for the accused and compel him to answer upon oath written interrogatories. affidavits were then sworn upon both sides. with written depositions before them, the lords of the council, without any jury, acquit or convict. fines and imprisonments were meted out to rioters, conspirators, bribers, and perjured jurors. no loss of life or limb occurred because there had been no jury. 	in criminal cases, witnesses acquainted with particular facts were added to the general assize of twelve men from each hundred and four men from each town. the assize then bifurcated into the grand jury of twelve to twenty-four men and the petty jury or jury of verdict of twelve men, which replaced ordeal, compurgation, and trial by combat as the method of finding the truth. the men of the petty jury as well as those of the grand jury were expected to know or to acquaint themselves with the facts of the cases. the men of the petty jury tended to be the same men who were on the grand jury. 	felony included such crimes as homicide, arson, rape, robbery, burglary, and larceny. secret homicide was still murder. burglary was an offense committed in times of peace and consisted of breaking into churches, houses, and into the walls and gates of villages and boroughs. these six offenses could be prosecuted by indictment or private accusation by an individual. the penalties involved loss of life or limb or outlawry; a felon's goods were confiscated by the crown and his land was forfeited to the crown for a year and a day, after which it escheated to the felon's lord. the peace of the king now did not die with the king, but renewed automatically without an interval before the inauguration of a new king. 	notorious felons who would not consent or put themselves on inquests for felonies with which they were charged at royal courts were put in strong and hard imprisonment to persuade them to accept trial by assize. this inducement progressed into being loaded with heavy chains and placed on the ground in the worst part of the prison and being fed a only little water one day and a little bread the next. sometimes pieces of iron or stones were placed one another onto their prone bodies to persuade them to plead. this then developed into being loaded with as much iron as could be borne, and finally into being pressed to death ["peine forte et dure"]. many of these men chose to die by this pressing so that their families could inherit their property, which would have been forfeited if they had been convicted of serious crimes. 	the most common cases in the court of common pleas were "detinue" [wrongful detention of a good or chattel which had been loaned, rented, or left for safekeeping with a "bailee", but belonged to the plaintiff], "debt" [for money due from a sale, for money loaned, for rent upon a lease for years, from a surety, promised in a sealed document, or due to arbitrators to whom a dispute had been submitted] and "account" [e.g. against bailiffs of manors, a guardian in socage, and partners]. it also heard estovers [right to use during a lease] of wood, profit by gathering nuts, acorns, and other fruits in wood, corody [allowance of food], yearly delivery of grain, toll, tunnage, passage, keeping of parks, woods, forests, chases, warrens, gates, and other bailiwicks, and offices in fee. 	the itinerant justices gradually ceased to perform administrative duties on their journeys because landed society had objected to their intrusiveness. edward i substituted regular visitations of justices of assize for the irregular journeys of the itinerant justices. each one of four circuits had two justices of assize. from about , these justices of assize heard cases of gaol delivery. their jurisdiction expanded to include serious criminal cases and breach of the king's peace. 	breaches of the forest charter laws were determined by justices of the king's forest, parks, and chases, along with men of assize. 	coroners' inquest procedures were delineated by statute and included describing in detail in the coroner's rolls every wound of a dead body, how many may be culpable, and people claiming to have found treasure who might be suspects. 	the precedent for punishment for treason was established by the conviction of a knight, david ab gruffydd, who had turned traitor to the welsh enemy, after fighting with edward and being rewarded with land, during the conquest of wales. he had plotted to kill the king. he was found guilty of treason by parliament and condemned to be dragged at the heels of horses for being a traitor to his knightly vows, hanged by the neck for his murders, cut down before consciousness left him to have his entrails cut out for committing his crimes during the holy week of easter, and his head cut off and his body divided into four parts for plotting against the king's life. the head was placed on the tower of london and his body sections were placed in public view at various other locations in england. this came to be known as "hanging, drawing, and quartering". prior to this the penalty had been imprisonment, usually followed by ransom. 	trial by combat is now limited to certain claims of enfeoffment of large land holding and is barred for land held in socage, burgage, or by marriage. assize is the usual manner of trial, but compurgation remains in the borough court long after it becomes obsolete in the royal courts. it came to be that defendants no longer request assizes but are automatically put to them. 	numerous statutes protect the integrity of the courts and king's offices by double and treble damages and imprisonment for offenses such as bribery, false informers, conspiracy to falsely move or maintain pleas, champerty [covenant between a litigant and another for the other to have a part or profit in the award in return for maintaining the suit], conflict of interest by court officers taking part in a quarrel pending in court or working any fraud whereby common right may be delayed or disturbed. there had been many abuses, the most common of which was extortion by sheriffs, who gaoled people without cause to make them pay to be released. the prohibition of maintenance of a quarrel of a party in court by a nonparty was extended in to all persons, including the king's councilors and ministers, and great men, e.g. by sending letters. in , this prohibition specifically included prelates, earls, barons taking in hand quarrels other than their own, or maintaining them for gift, promise, amity, favor, doubt, or fear, in disturbance of law and hindrance of right. the reason given was that there had been persons disinherited, delayed or disturbed in their rights, and not guilty persons convicted or otherwise oppressed. all great men were required to put out of their service all maintainers who had been retained, and void their fees and robes, without giving them aid, favor, or comfort. this law was not obeyed. 	the king reserved to himself and his council in its judicial capacity the correction of all breaches of the law which the lower courts had failed to remedy, whether from weakness, partiality, corruption, or jury timidity, and especially when the powerful barons defied the courts. the chancery also sought to address causes which were impeded in their regular course, which often involved assaults, batteries, and forcible dispossessions. 	disputes within the royal household were administered by the king's steward. he received and determined complaints about acts or breaches of the peace within twelve miles around the king's person or "verge". he was assisted by the marshall in the "court of the hall" and by the clerk of the market when imposing fines for trading regulation violations in the "court of the market". 	ecclesiastical courts were successful in their competition with the secular courts for jurisdiction over testamentary matters [concerning wills] and succession [no will] to chattels. 	there were local courts of the vill, borough, manor, hundred, county, sheriff, escheator, and royal bailiff, with overlapping jurisdictions. the county court in its full session, that is, as it attended the itinerant justices on their visitation, contained the archbishops, bishops, priors, earls, barons, knights, and freeholders, and from each township four men and the reeve, and from each borough twelve burgesses. it was still the folkmote, the general assembly of the people. in , suitors who could not spend s. a year within their county were not required to attend their county court. 	the most common plea in the hundred court was trespass. it also heard issues concerning services arising out of land, detention of chattels, small debts, wounding or maiming of animals, and personal assaults and brawls not amounting to felony. it met every three weeks. the sheriff held his turn twice a year and viewed frankpledge once a year. 	when edward i came to the throne, over half of the approximately hundred courts had gone under the jurisdiction of a private lord owing to royal charter, prescriptive right, and usurpation. the sheriff's powers in these hundreds varied. in some, the sheriff had no right of entry. 	in the manor courts, actions of debt, detinue, and covenant were frequent. sometimes there are questions of a breach of warranty of title in agreements of sale of land. accusations of defamation were frequent; this offense could not be taken to the king's court, but it had been recognized as an offense in the anglo-saxon laws. in some cases, the damages caused are specifically stated. for instance, defamation of a lord's grain would cause other purchasers to forbear buying it. there are frequent cases of ordinary thefts, trespasses, and assaults. the courts did rough but substantial justice without distinction between concepts such as tort and contract. in fact, the action of covenant was the only form of agreement enforceable at common law. it required a writing under seal and awarded damages. manor court law was not technical, but elastic, and remedies could include injunctions, salary attachment, and performance of acts. the steward holding the manor court was often a lawyer. 	some pleas in the manors of the abbey of bec were: . hugh le pee in mercy (fine, d.) for concealing a sheep for half a year. pledges, simon of newmere, john of senholt . william ketelburn in mercy (fine, s. d.) for divers trespasses. pledge, henry ketelburn. . hugh derwin for pasture, d. richard hulle for divers trespasses, d. henry stanhard for pasture, d. . william derwin for a trespass, d.; pledge, william sperling. . hugh hall gives the lord d. that he may have the judgment of the court as to a tenement and two acres of land, which he demands as of right, so he says. and it being asserted that the said land is not free[hold] let the court say its say. and the court says that the tenement and one of the two acres are of servile condition and that the other acre is of free condition. the case is reserved for the lord's presence. pledge, john brian. . john palmer is put in seisin of his father's tenement and gives the lord s. d. as entry money. . william ketelburn gives the lord s. d. that he may be removed from the office of reeve. pledge, robert serjeant. . william frith for subtraction of work, d. john reginald for the same, d. john of senholt, d. william ketelburn, d. . for the common fine to be paid on s. andrew's day, s. . it is presented by the chief pledges that godfrey serjeant has made default; also that john le pee has unlawfully thrown up a bank; therefore let it be set to rights. . robert smith is put in seisin of his father's tenement and gives the lord four pounds for entry money. pledge, robert serjeant. . william ketelburn for a trespass, s. d. . william fleming gives four pounds for leave to contract [marriage] with widow susan. pledge, richard serjeant. . john mabely gives the lord s. to have the judgment of twelve men as to certain land whereof noah deforces him; pledges, richard smith, ralph bernard. the said jurors say that noah the fat has right; therefore etc. . agnes stampelove gives the lord s. for leave to come and go in the vill but to dwell outside the lord's land. pledge, richard smith. . godfrey tailor the younger for a trespass, s. . whereas godfrey tailor the younger has demanded against noah a farthing land, now the action is compromised in manner following: godfrey for himself and his heirs remises to the said noah and his heirs all right and claim which he has or can have in the said farthing land by reason of the gift made by his grandfather john tailor. . agnes mabely is put in seisin of a farthing land which her mother held, and gives the lord s. d. for entry money. pledges, noah, william askil. . the full court declares that in case any woman shall have altogether quitted the lord's domain and shall marry a freeman, she may return and recover whatever right and claim she has in any land; but if she shall be joined to a serf, then she cannot do this during the serf's lifetime, but after his death she may. t . william alice's son is put in seisin of a bakehouse in the king's street, and shall keep up the house at his own cost and gives d. for entry money, and s. annual rent payable at three terms, viz. s. d. at martinmas, s. d. at lady day, s. d. at christmas. pledges, adam clerk, john deboneir. . john son of alma demands a cottage which henry fleming holds and gives the lord d. for the oath and recognition of men; pledge, richard jordan. the jurors say that henry fleming has the better right. . baldwin cobbler's son finds [as pledges] walter cobbler, roger of broadwater, robert linene, william frances, that notwithstanding his stay in london he will always make suit with his tithing and will at no time claim any liberty contrary to the lord's will and will come to the lord whenever the lord wills. . simon patrick gives the lord d. to have the judgment of the court as to a cottage of which the widow of geoffrey dogers deforces him; pledge, simon of strode. the said jurors say that the said simon has the better right. and the said simon remises and quitclaims all his right to his sister maud and her husband john horin, [who] gives the lord s. for entry money; pledges, simon patrick, john talk. . hugh wiking for not making suit at the lord's mill, d. . it was presented that william derwin and john derwin (fine, d.) committed a trespass against agnes dene, and the cry was raised, therefore etc. . hugh churchyard contracted [marriage] without the lord's leave; [fine] d. . let juliana forester be distrained for her default, also william moor. . john kulbel in mercy (fine, d.) for not producing gregory miller, and he is commanded to produce him at the next court. . hugh andrew's son gives the lord s. for leave to marry; pledge, robert serjeant. . juliana forester gives the lord d. in order that for the future no occasion may be taken against her for neglect of suit of court. . john franklain is put in seisin of his father's tenement and gives the lord s. for entry; pledge, robert serjeant. . henry cross gives the lord s. for license to marry; pledge, robert serjeant. . isabella warin gives the lord s. for leave to give her daughter mary in marriage; pledge, john serjeant. . it is presented by the whole township that ralph le war has disseised the lord of a moiety of a hedge, whereas it had often been adjudged by award of the court that the said hedge belongs as to one moiety to the lord and as to the other to ralph, and the said ralph claims and takes to his use the whole to the lord's damage etc. also they say that the said ralph holds overcolkescroft, which land by right is the lord's. . it is presented by unanimous verdict of the whole court that if anyone marries a woman who has right in any land according to the custom of the manor and is seised thereof by the will of the lord, and the said woman surrenders her right and her seisin into the hands of the lord and her husband receives that right and seisin from the hands of the lord, in such case the heirs of the woman are for ever barred from the said land and the said right remains to the husband and his heirs. therefore let william wood, whose case falls under this rule, hold his land in manner aforesaid. and for the making of this inquest the said william gives the lord s. d. . the tenements of lucy mill are to be seized into the lord's hands because of the adultery which she has committed and the bailiff is to answer for them. the chief pledges present that cristina daughter of richard maleville has married at london without the lord's licence; therefore let the said richard be distrained. he has made fine with d. also that alice berde has done the same; therefore let her be distrained. also that robert fountain has committed a trespass against william gery; therefore the said robert is in mercy; pledge, humfrey; fine, d. also that richard maleville has drawn blood from stephen gust; therefore he is in mercy; fine, s. . geoffrey coterel in mercy for a battery; fine, d.; pledge, adam serjeant. geoffrey coterel for trespass in the hay; fine, d.; pledge, alan reaper. hugh of senholt in mercy for trespass in the green wood; fine, d. . hugh wiking in mercy for delay in doing his works; fine, d. hugh churchyard for trespass in [cutting] thorns; fine, d. thomas gold in mercy for trespass in the wood; fine, d.; pledge, robert grinder. . william dun in mercy for subtraction of his works due in autumn; fine, s. avice isaac for the same, d.; hugh wiking for the same, d.; agnes rede in mercy for her daughter's trespass in the corn [grain], d. . walter ash in mercy for not making suit to the lord's mill; fine, d. hugh pinel in mercy for diverting a watercourse to the nuisance of the neighbors; fine, d.; pledge, robert fresel. . john dun in mercy for carrying off corn [grain] in the autumn; pledge, adam white. alan reaper gives the lord d. on account of a sheep which was lost while in his custody. . adam white in mercy for bad mowing; fine, d. hugh harding in mercy for the same; fine, d. . the chief pledges present that henry blackstone (fine, d.), hugh churchyard (fine, d.), walter ash (fine, d.), henry of locksbarow (fine, d.), avice isaac (fine, d.), richard matthew (fine, d.), hugh wiking (fine,--), ralph dene (fine, d.), john palmer (fine, d.), john coterel (fine, d.), john moor (fine, d.), john cubbel (fine, d.), hugh andrew (fine, d.), philip chapman (fine, d.), john fellow (fine, d.), robert bailiff (fine, d.), alice squire (fine, d.), john grately (fine,--), richard hull (fine, d.), osbert reaper (fine, d.), and robert cross (fine, d.), have broken the assize of beer. also that henry of senholt, henry brown, hugh hayward, richard moor, juliana woodward, alice harding, peronel street, eleanor mead make default. also that walter ash (fine,--), john wiking (fine,--), john smart (fine,--), and henry coterel have married themselves without the lord's licence; therefore let them be distrained to do the will of the lord. . alan reaper for the trespass of his foal; fine, d. . philip chapman in mercy for refusing his gage to the lord's bailiff; fine, d. . william ash in mercy for trespass in the growing crop; fine, d. . john iremonger in mercy for contempt; fine, d. . the chief pledges present that william of ripley (fine, d.), walter smith (no goods), maud of pasmere (fine, d.), have received [strangers] contrary to the assize; therefore they are in mercy. . maud widow of reginald of challow has sufficiently proved that a certain sheep valued at d. is hers, and binds herself to restore it or its price in case it shall be demanded from her within year and day; pledges, john iremonger and john robertd; and she gives the lord d. for [his] custody [of it]. 	the court of hustings in london is empowered to award landlords their tenements for which rent or services are in arrears if the landlord could not distrain enough tenant possessions to cover the arrearages. 	wills are proven in the court of husting, the oldest court in london, which went back to the times of edward the confessor. one such proven will is: 	"tour (john de la) - to robert his eldest son his capital messuage and wharf in the parish of berchingechurch near the land called 'berewardesland`. to agnes his wife his house called 'wyvelattestone', together with rents, reversions, etc. in the parish of s. dunstan towards the tower, for life; remainder to stephen his son. to peter and edmund his sons lands and rents in the parish of all hallows de berhyngechurch; remainders over in default of heirs. to agnes, wife of john le keu, fishmonger, a house situate in the same parish of berhyng, at a peppercorn [nominal] rent." 	the court of the mayor of london heard diverse cases, including disputes over goods, faulty or substandard goods, adulteration, selling food unfit for human consumption, enhancing the price of goods, using unlawful weighing beams, debts, theft, distraints, forgery, tavern brawling, bullying, and gambling. insulting or assaulting a city dignitary was a very serious crime; an attack on the mayor was once capitally punished. sacrilege, rape, and burglary were punished by death. apart from the death penalty, the punishment meted out the most was public exposure in the pillory, with some mark of ignominy slung round the neck. if the crime was selling bad food, it was burnt under the offender's nose. if it was sour wine, the offender was drenched in it. standing in the pillory for even one hour was very humiliating, and by the end of the day, it was known throughout the city. the offender's reputation was ruined. some men died in the pillory of shame and distress. a variation of the pillory was being dragged through the streets on a hurdle. prostitutes were carted through the streets in coarse rough cloth hoods, with penitential crosses in their hands. scolds were exposed in a "thewe" for women. in more serious cases, imprisonment for up to a year was added to the pillory. mutilation was rare, but there are cases of men losing their right hands for rescuing prisoners. the death penalty was usually by hanging. the following four london cases pertain to customs, bad grain, surgery, and apprenticeship, respectively. "john le paumer was summoned to answer richer de refham, sheriff, in a plea that, whereas the defendant and his society of bermen [carriers] in the city were sworn not to carry any wine, by land or water, for the use of citizens or others, without the sheriff's mark, nor lead nor cause it to be led, whereby the sheriff might be defrauded of his customs, nevertheless he caused four casks of wine belonging to ralph le mazun of westminster to be carried from the city of westminster without the sheriff's mark, thus defrauding the latter of his customs in contempt of the king etc. the defendant acknowledged the trespass. judgment that he remain in the custody of the sheriff till he satisfy the king and the court for offense." "walter atte belhaus, william atte belhous, robert le barber dwelling at ewelleshalle, john de lewes, gilbert le gras, john his son, roger le mortimer, william ballard atte hole, peter de sheperton, john brun and the wife of thomas the pelterer, stephen de haddeham, william de goryngg, margery de frydaiestrate, mariot, who dwells in the house of william de harwe, and william de hendone were attached to answer for forestalling all kinds of grain and exposing it, together with putrid grain, on the pavement, for sale by the bushel, through their men and women servants; and for buying their own grain from their own servants in deception of the people. the defendants denied that they were guilty and put themselves on their country. a jury of richard de hockeleye and others brought in a verdict of guilty, and the defendants were committed to prison till the next parliament." "peter the surgeon acknowledged himself bound to ralph de mortimer, by richard atte hill his attorney, in the sum of s., payable at certain terms, the said ralph undertaking to give peter a letter of acquittance [release from a debt]. this recognizance arose out of a covenant between them with regard to the effecting of a cure. both were amerced for coming to an agreement out of court. a precept was issued to summon all the surgeons of the city for friday, that an inquiry might be made as to whether the above peter was fitted to enjoy the profession of a surgeon." "thomas de kydemenstre, shoemaker, was summoned to answer william de beverlee, because he did not clothe, feed and instruct his apprentice thomas, william's son, but drove him away. the defendant said that the apprentice lent his master's goods to others and promised to restore them or their value, but went away against his wish; and he demanded a jury. subsequently, a jury of william de upton and others said the apprentice lent two pairs of shoes belonging to his master and was told to restore them, but, frightened by the beating which he received, ran away; further that the master did not feed and clothe his apprentice as he ought, being unable to do so, to the apprentice's damage d., but that he was now in a position to look after his apprentice. thereupon thomas de kydemenstre said he was willing to have the apprentice back and provide for him, and the father agreed. judgment that the master take back the apprentice and feed and instruct him, or that he repay to the father, the money paid to the latter, and that he pay the father the d. and be in mercy." 	a professional class of temporal attorneys whose business it is to appear on behalf of litigants is prominent in the nation. attorneys are now drawn from the knightly class of landed gentlemen, instead of ecclesiastical orders. since it was forbidden for ecclesiastics to act as advocates in the secular courts, those who left the clergy to become advocates adopted a close-fitting cap to hide their tonsures, which came to be called a "coif". the great litigation of the nation is conducted by a small group of men, as is indicated by the earliest year books of case decisions. they sit in court and will sometimes intervene as amicus curiae [friends of the court]. parliament refers difficult points of law to them as well as to the justices. these reports became so authoritative that they could be cited in the courts as precedent. groups of attorneys from the countryside who are appearing in london courts during term-time and living in temporary lodgings start to form guild-like fellowships and buy property where they dine and reside together, called the inns of court. they begin to think of themselves as belonging to a profession, with a feeling of responsibility for training the novices who sat in court to learn court procedures and attorney techniques. they invited these students to supper at the inns of court for the purpose of arguing about the day's cases. the inns of court evolved a scheme of legal education, which was oral and used disputations. thus they became educational institutions as well as clubs for practicing attorneys. the call to the bar of an inn was in effect a degree. to be an attorney one had to be educated and certified at the inns of court. they practice law full time. some are employed by the king. justices come to be recruited from among those who had passed their lives practicing law in court, instead of from the ecclesiastical orders. all attorneys were brought under the control of the justices. 	there are two types of attorney: one attorney appears in the place of his principal, who does not appear. the appointment of this attorney is an unusual and a solemn thing, only to be allowed on special grounds and with the proper formalities. for instance, a poor person may not be able to afford to travel to attend the royal court in person. the other one is the pleader-attorney, who accompanies his client to court and advocates his position with his knowledge of the law and his persuasiveness. 	in , the city of london made regulations for the admission of both types of attorneys to practice before the civic courts, and for their due control. in the king directed the justices to provide a certain number of attorneys and apprentices to follow the court, who should have the exclusive right of practicing before it. this begins the process which will make the attorney for legal business an "officer of the court" which has appointed him. - - - chapter - - - - the times: - - 	waves of the black death, named for the black spots on the body, swept over the nation. the black blotches were caused by extensive internal bleeding. the plague was carried in the blood of black rats and transmitted to humans by the bite of the rat flea, but this cause was then unknown. the first wave of this plague, in , lasted for three years and desolated the nation by about one half the population in the towns and one third in the country. people tried to avoid the plague by flight. the agony and death of so many good people caused some to question their belief in god. also, it was hard to understand why priests who fled were less likely to die than priests who stayed with the dying to give them the last rites. legal and judicial, as well as other public business weere interrupted by theplague and ceased for two years. thus begins a long period of disorganization, unrest, and social instability. customary ways were so upset that authority and tradition were no longer automatically accepted. fields lay waste and sheep and cattle wandered over the countryside. local courts could seldom be held. some monasteries in need of cash sold annuities to be paid in the form of food, drink, clothing, and lodging during the annuitant's life, and sometimes that of his widow also. guilds and rich men made contributions to the poor and ships with provisions were sent to various parts of the country for the relief of starving people. in london, many tradesmen and artisans formed parish fraternities which united people of all social levels and women on almost equal terms with men, in communal devotion and mutual support, such as help in resolving disputes, moral guidance, money when needed, and burial and masses. 	farm workers were so rare that they were able to demand wages at double or triple the pre-plague rate. the pre-plague had been - d. daily for masons, carpenters, plasterers, and tilers and d. for their laborers. these laborers could buy cheap loaves, gallons of ale, and a gallon of cheap wine or half a pair of shoes. prices did not go up nearly as much as wages. villeins relinquished their tenements, and deserted their manors, to get better wages elsewhere. they became nomadic, roaming from place to place, seeking day work for good wages where they could get it, and resorting to thievery on the highways or beggary where they could not. the robin hood legends were popular among them. in them, robin hood is pure outlaw and does not contribute money to the poor. nor does he court maid marion. 	villeins spread political songs among each other, such as: "to seek silver to the king, i my seed sold; wherefore my land lieth fallow and learneth to sleep. since they fetched my fair cattle in my fold; when i think of my old wealth, well nigh i weep. thus breedeth many beggars bold; and there wakeneth in the world dismay and woe, for as good is death anon as so for to toil." 	groups of armed men took lands, manors, goods, and women by force. the villeins agreed to assist each other in resisting by force their lords' efforts to return them to servitude. a statute of laborers passed in for wages to be set at the pre-plague rates was ineffectual. justices became afraid to administer the law. villeins, free peasants, and craftsmen joined together and learned to use the tactics of association and strikes against their employers. 	the office of justice of the peace was created for every county to deal with rioting and vagrants. cooperation by officials of other counties was mandated to deal with fugitives from its justice. 	the black death visited again in and in . the black death reduced the population from about million to about / million. it was to rise to about million by . 	when there were attempts to enforce the legal servitude of the villeins, they spread rhymes of their condition and need to revolt. a secret league, called the "great society" linked the centers of intrigue. a high poll tax, graduated from s. to d., that was to be raised for a war with france, touched off a spontaneous riot all over the nation in . this tax included people not taxed before, such as laborers, the village smith, and the village tiler. each area had its own specific grievances. there was no common political motive, except maladministration in general. 	in this peasants' revolt, mobs overran the counties around london. the upper classes fled to the woods. written records of the servitude of villeins were burned in their halls, which were also looted. title deeds of landlords were burned. rate rolls of general taxation were destroyed. prisoners were released from gaols. men connected with tax collection, law enforcement, attorneys, and alien merchants were beheaded. the chief justice was murdered while fleeing. the archbishop, who was a notoriously exploitive landlord, the chancellor, and the treasurer were murdered. severed heads were posted on london bridge. a mob took control of the king's empty bedchamber in the tower. the villeins demanded that service to a lord be by agreement instead of by servitude, a commutation of villein service for rents of a maximum of d. per acre yearly, abolition of a lord's right for their work on demand (e.g. just before a hail storm so only his crops were saved), and the right to hunt and fish. the sokemen protested having to use the lord's mill and having to attend his court. 	the revolt was suppressed and its leaders punished. the king issued proclamations forbidding unauthorized gatherings and ordering tenants of land to perform their customary services. the poll tax was dropped. for the future, the duty to deal with rioting and vagrants was given to royal justices, sheriffs, mayors, bailiffs, and constables as well as the justices of the peace. there was a high justice of the peace in each hundred and a petty constable in each parish. justices of the peace could swear in neighbors as unpaid special constables when disorder broke out. 	the sheriff was responsible for seeing that men of the lower classes were organized into groups of ten for police and surety purposes, and for holding of hundred and county courts, arresting suspects, guarding prisoners awaiting trial, carrying out the penalties adjudged by the courts, and collecting crown revenue through his bailiffs. royal writs were addressed to the sheriff. because many sheriffs had taken fines and ransoms for their own use, a term limit of one year was imposed. sheriffs, hundreders, and bailiffs had to have lands in the same counties or bailiwicks [so they could be held answerable to the king]. 	efforts were made to keep laborers at the plough and cart rather than learn a craft or entering and being educated by the church. the new colleges at the universities ceased to accept villeins as students. 	due to the shortage of labor, landlords' returns had decreased from about % to about %. but some found new methods of using land that were more profitable than the customary services of villeins who had holdings of land or the paid labor of practically free men who paid a money rent for land holdings. one method was to turn the land to sheep breeding. others leased their demesne land, which transferred the burden of getting laborers from the landlord to the lessee-tenant. the payment was called a "farm" and the tenant a "farmer". first, there were stock-and-land leases, in which both the land and everything required to cultivate it were let together. after years, when the farmers had acquired assets, there were pure land leases. landlords preferred to lease their land at will instead of for a term of years to prevent the tenant from depleting the soil with a few richer crops during the last years of his tenancy. the commutation of labor services into a money payment developed into a general commutation of virtually all services. lords in need of money gladly sold manumissions to their villeins. 	the lord and lady of some manors now ate with their family and entertained guests in a private parlor [from french word 'to speak"] or great chamber, where they could converse and which had its own fireplace. the great chamber was usually at the fireplace end of the great hall, where there was a high table. the great hall had been too noisy for conversation and now was little used. there were also separate chambers or bed-sitting rooms for guests or members the family or household, in which one slept, received visitors, played games, and occasionally ate. 	some farmers achieved enough wealth to employ others as laborers on their farms. the laborers lived with their employer in his barn, sleeping on hay in the loft, or in mud huts outside the barn. the farmer's family lived at one end of the barn around an open fire. their possessions typically were: livestock, a chest, a trestle table, benches, stools, an iron or bronze cauldron and pots, brooms, wooden platters, wooden bowls, spoons, knives, wooden or leather jugs, a salt box, straw mattresses, wool blankets, linen towels, iron tools, and rush candles [used the pith of a rush reed for the wick]. those who could not afford rush candles could get a dim light by using a little grease in a shallow container, with a few twisted strands of linen thread afloat in it. the peasants ate dark bread and beans and drank water from springs. milk and cheese were a luxury for them. those who could not afford bread instead ate oat cakes made of pounded beans and bran, cheese, and cabbage. they also had leeks, onions, and peas as vegetables. some farmers could afford to have a wooden four-posted bedstead, hens, geese, pigs, a couple of cows, a couple of sheep, or two-plough oxen. july was the month when the divide between rich and poor became most apparent. the rich could survive on the contents of their barns, but the poor tried to survive by grinding up the coarsest of wheat bran and shriveled peas and beans to make some sort of bread. grain and bread prices soared during july. farming still occupied the vast majority of the population. town inhabitants and university students went into the fields to help with the harvest in the summer. parliament was suspended during the harvest. 	town people had more wealth than country people. most townspeople slept in nightgowns and nightcaps in beds with mattresses, blankets, linen sheets, and pillows. beds were made every morning. bathing was by sponging hot water from a basin over the body, sometimes with herbs in it, rinsing with a splash of warm water, and drying off with a towel. tubs used only for baths came into use. there were drapery rugs hung around beds, handheld mirrors of glass, and salt cellars. the first meal of the day was a light breakfast, which broke the fast that had lasted the night. meals were often prepared according to recipes from cook books which involved several preparation procedures using flour, eggs, sugar, cheese, and grated bread, rather than just simple seasoning. menus were put together with foods that tasted well together and served on plates in several courses. children's sweets included gingerbread and peppermint drops. sheffield cutlery was world famous. table manners included not making sounds when eating, not playing with one's spoon or knife, not placing one's elbows on the table, keeping one's mouth clean with a napkin, and not being boisterous. there were courtesies such as saying "good morning" when meeting someone and not pointing one's finger at another person. king richard ii invented the handkerchief for sneezing and blowing one's nose. there were books on etiquette. cats were the object of superstition, but there was an ancient and honorable order of the men who stroke cats. 	new burgesses were recruited locally, usually from within a mile radius of town. most of the freemen of the larger boroughs, like canterbury and london, came from smaller boroughs. an incoming burgess was required to buy his right to trade either by way of a seven year apprenticeship or by payment of an entry fee. to qualify, he needed both a skill and social respectability. 	towns started acquiring from the king the right to vacant sites and other waste places, which previously was the lord's right. the perpetuality of towns was recognized by statutes of , which compared town-held property to church-held property. the right of london to pass ordinances was confirmed by charter. some towns had a town clerk, who was chief of full-time salaried officers. there was a guildhall to maintain, a weigh-house, prison, and other public buildings, municipal water supplies, wharves, cranes, quays, wash-houses, and public lavatories. 	after the experience of the black death, some sanitary measures were taken. the notorious offenders in matters of public hygiene in the towns, such as the butchers, the fishmongers, and the leather tanners were assigned specific localities where their trades would do least harm. the smiths and potters were excluded from the more densely populated areas because they were fire risks. in the town of salisbury, there was butcher row, ox row, fish row, ironmongers' row, wheelwrights' row, smiths' row, pot row, silver street, cheese market, and wool market. 	for water, most communities depended on rivers that ran near by or on public wells that were dug to reach the water underground. some towns had water public water supply systems. fresh water was brought into the town from a spring or pond above the town by wood or lead pipes or open conduits. sometimes tree trunks were hollowed out and tapered at the ends to fit into the funnel-shaped end of another. but they leaked a lot. in london, a conduit piped water underground to a lead tank, from which it was delivered to the public by means of pipes and brass taps in the stone framework. this was london's chief water supply. water carriers carried water in wooden devices on their backs to houses. 	the paving and proper drainage of the streets became a town concern. building contracts began specifying the provision of adequate cesspits for the privies at town houses, whether the latrines were built into the house or as an outhouse. also, in the better houses, there grew a practice of carting human and animal fecal matter at night to dung heaps outside the city walls. there was one public latrine in each ward and about twelve dung carts for the whole city. country manor houses had latrines on the ground floor and/or the basement level. 	in london, the goldsmiths, merchant taylors [tailors], skinners, and girdlers bought royal charters, which recognized their power of self-government as a company and their power to enforce their standards, perhaps throughout the country. the goldsmiths, the mercers, and the saddlers became in the first guilds to receive charters of incorporation, which gave them perpetual existence. as such they could hold land in "mortmain" [dead hand], thus depriving the king of rights that came to him on the death of a tenant-in-chief. they were authorized to bestow livery on their members and were called livery companies. the liverymen [freemen] of the trading companies elected london's representatives to parliament. 	in all towns, the organization of craft associations spread rapidly downwards through the trades. these associations sought self-government. craft guilds were gaining much power relative to the old merchant guilds in governing the towns. the greater crafts such as the fishmongers, skinners, and the corders (made rope, canvas, and pitch) organized and ultimately were recognized by town authorities as self-governing craft guilds. the building trade guilds such as the tilers, carpenters, masons, and joiners, became important. masons were still itinerant, going to sites of churches, public buildings, or commanded by the king to work on castles. the guild was not necessarily associated with a specific product. for instance, a saddle and bridle were the result of work of four crafts: joiner (woodworker), painter, saddler (leather), and lorimer (metal trappings). 	in london in craft guilds included: baker, fishmonger (cut up and sold fish), fruitier, brewer, butcher, bird dealer, cook, apothecary (sold potions he had ground up), cutler (made knives and spoons), barber, tailor, shoemaker, glover (made gloves), skinner (sold furs), girdler (made girdles of cloth to wear around one's waist), pouchmaker, armorer, sheathmaker, weaver, fuller, painter, carpenter, joiner (woodworker who finished interior woodwork such as doors and made furniture), tiler, mason (cut stone for buildings), smith (made metal tools for stonemasons and builders), tallow chandler (made candles and sometimes soap from the fat and grease the housewife supplied), wax chandler (made candles), stirrup maker, spurrier (made spurs), and hosteler (innkeeper). however, the merchant guilds of the goldsmiths, vintners (sold wine), mercers (sold cloth), grocers, and drapers (finished and sold english cloth) were still strong. it was a long custom in london that freemen in one company could practice the trade of another company. there were paint mills and saw mills replacing human labor. there were apothecary shops and women surgeons. women who earned their own living by spinning were called "spinsters". 	some prices in london were: a hen pastry d., a capon pastry d., a roast pheasant d., a roast heron d., roast goose d., a hen d., a capon d., three roast thrushes d., ten larks d., ten finches d, and ten cooked eggs d. 	many of the guilds bought sites on which they built a chapel, which was later used as a secular meeting place. the guild officers commonly included an alderman, stewards, a dean, and a clerk, who were elected. the guild officers sat as a guild court to determine discipline for offenses such as false weights or measures or false workmanship or work and decided trade disputes. the brethren in guild fraternity were classified as masters, journeymen, or apprentices. they were expected to contribute to the support of the sick and impoverished in their fellowship. their code required social action such as ostracizing a man of the craft who was living in adultery until he mended his ways. 	the rules of the company of glovers were: . none but a freeman of the city shall make or sell gloves. . no glover may be admitted to the freedom of the city unless with the assent of the wardens of the trade. . no one shall entice away the servant of another. . if a servant in the trade makes away with his master's chattels to the value of d., the wardens shall make good the loss; and if the servant refuses to be judged by the wardens, he shall be taken before the mayor and aldermen. . no one may sell his goods by candlelight. . any false work found shall be taken before the mayor and aldermen by the wardens. . all things touching the trade within the city between those who are not freemen shall be forfeited. . journeymen shall be paid their present rate of wages. . persons who entice away journeymen glovers to make gloves in their own houses shall be brought before the mayor and aldermen. . any one of the trade who refuses to obey these regulations shall be brought before the mayor and aldermen. 	cordwainers [workers in soft cordovan leather from spain, especially shoes] of good repute petitioned the city of london in for ordinances on their trade as follows: "to the mayor and aldermen of the city of london pray the good folks of the trade of cordwainers of the same city, that it may please you to grant unto them the articles that follow, for the profit of the common people; that so, what is good and right may be done unto all manner of folks, for saving the honor of the city and lawfully governing the said trade. in the first place - that if any one of the trade shall sell to any person shoes of bazen [sheepskin tanned in oak or larch-bark] as being cordwain, or of calf-leather for ox-leather, in deceit of the common people, and to the scandal of the trade, he shall pay to the chamber of the guildhall, the first time that he shall be convicted thereof, forty pence; the second time, s. half a mark; and the third time the same, and further, at the discretion of the mayor and aldermen. also - that no one of the trade shall keep house within the franchise if he be not free [invested with the rights or privileges] of the city and one knowing his trade, and that no one shall be admitted to the freedom without the presence of the wardens of the trade bearing witness to his standing, on the pain aforesaid. also - if any one of the trade shall be found offending touching the trade, or rebellious against the wardens thereof, such person shall not make complaint to any one of another trade, by reason of the discord or dissension that may have arisen between them; but he shall be ruled by the good folks of his own trade. and if he shall differ from them as acting against right, then let the offense be adjudged upon before the mayor and aldermen; and if he be found rebellious against the ordinance, let him pay to the chamber the sum above mentioned. also - that no one of the trade shall entice or purloin the servant of another from the service of his master by paying him more than is ordained by the trade, on the pain aforesaid. also - that no one shall carry out of his house any wares connected with his trade for sale in market or elsewhere except only at a certain place situated between soperesland and the conduit; and that at a certain time of the day, that is to say, between prime [the first hour of the day] and noon. and that no shoes shall exceed the measure of seven inches, so that the wares may be surveyed by the good folks of the trade, because of the deceit upon the common people that might ensue and the scandal of the trade, on the pain aforesaid. also - that no one shall expose his wares openly for sale in market on sundays at any place, but only within his own dwelling to serve the common people, on the pain aforesaid. also - that if any one sells old shoes, he shall not mix new shoes among the old in deceit of the common people and to the scandal of the trade, on the pain aforesaid." 	smithfield was a field outside the city gates at which horses were sold and raced. in , the horse dealers and drovers petitioned for a tax on animals sold there to pay for cleaning the field. the city ordinance reads as follows: "on wednesday next after the feast of st. margaret the virgin came reputable men, the horse dealers and drovers, and delivered unto the mayor and aldermen a certain petition in these words: 'to the mayor, recorder, and aldermen show the dealers of smithfield, that is to say, the coursers and drovers, that for the amendment of the said field they have granted and assented among them that for the term of three years next ensuing after the date of this petition for every horse sold in the said field there shall be paid one penny, for every ox and cow one halfpenny, for every eight sheep one penny, and for every swine one penny by the seller and the same by the purchaser who buys the same for resale.` afterwards, on the eleventh day of august in the same year, adam fernham, keeper of the gaol at newgate, hugh, averelle, bailiff of smithfield, and william godhewe, weaver, were chosen and sworn faithfully to collect and receive the said pennies in form aforesaid and to clean the field of smithfield from time to time during such term of three years when necessary." 	many london houses were being made from stone and timber and even brick and timber, instead of just timber and mud. however, chimneys were still a luxury of the rich. they were made of stone, tile, or plaster. there were windows of glass and a guild of glaziers was chartered by the king. a typical merchant's house had a cellar; a ground floor with a shop and storage space; a first floor with a parlor to receive guests, a spacious hall for dining, and perhaps a kitchen; and at the top, a large family bedroom and a servant's room. stairwells between floors had narrow and winding steps. many single-roomed houses added a second-floor room for sleeping, which was approached by a wooden or stone staircase from the outside. their goods were displayed on a booth outside the door of the house or hung in the windows. they were stored at night in the cellar. over the booths swung huge signs, which had to be nine feet above street level to allow a man on horseback to ride underneath. there were no sidewalks. street repair work for wages was supervised by a stone master. the streets sloped down from the middle so that the filth of the streets would run down the sides of the road. there were many wood chips in the streets due to cutting up of firewood before taking it indoors. people often threw the rubbish from their houses onto the street although they were supposed to cart it outside the city walls and to clean the frontage of their houses once a week. dustmen scavenged through the rubbish on the streets. pigs and geese were no longer allowed to run at large in the streets, but had to be fed at home. there were other city rules on building, public order, the use of fountains, precautions against fire, trading rights in various districts, closing time of taverns, and when refuse could be thrown into the streets, e.g. nighttime. 	aldermen were constantly making rounds to test measures and weights, wine cups, the height of tavern signs, and the mesh of the fishing nets, which had to be at least two inches wide. they saw that the taverns were shut when curfew was rung and arrested anyone on the street after curfew who had a weapon, for no one with a sword was allowed on the streets unless he was some great lord or other substantial person of good reputation. wards provided citizens to guard the gates in their respective neighborhood and keep its key. 	the city was so dense that nuisance was a common action brought in court, for instance, vegetable vendors near a church obstructing passageway on the street or plumbers melting their solder with a lower than usual shaft of the furnace so smoke was inhaled by people nearby. 		crime in london was rare. murder, burglary, highway robbery, and gross theft were punishable by hanging. forgery and fraud, were punishable by the placement in the pillory or stocks or by imprisonment. perjury was punished by confession from a high stool for the first offense, and the pillory for the second. slander and telling lies were punished by the pillory and wearing a whetstone around one's neck. there was an ordinance passed against prostitutes in . london as well as other port towns had not only prostitutes, but syphilis. 	prominent londoners sought to elevate their social position by having their family marry into rural landholding families of position. for poor boys with talent, the main routes for advancement were the church, the law, and positions in great households. 	many master freemasons, who carved freestone or finely grained sandstone and limestone artistically with mallet and chisel, left the country for better wages after their wages were fixed by statute. the curvilinear gothic style of architecture was replaced by the perpendicular style, which was simpler and cheaper to build. church steeples now had clocks on them with dials and hands to supplement the church bell ringing on the hour. alabaster was often used for sepulchral monuments instead of metal or stone. with it, closer portraiture could be achieved. 	in the s and s the london population suffered from tuberculosis, typhus, influenza, leprosy, dysentery, smallpox, diphtheria, measles, heart disease, fevers, coughs, cramps, catarrhs and cataracts, scabs, boils, tumors, and "burning agues". there were also many deaths by fires, burning by candles near straw beds when drunk, falling downstairs when drunk, and drowning in the river or wells. children were often crushed by carts, trampled by horses, or mauled by pigs. 	towns recognized surgery as a livelihood subject to admission and oath to serve the social good. master surgeons were admitted to practice in in london in full husting before the mayor and the aldermen and swore to: [ ] faithfully serve the people in undertaking their cures, [ ] take reasonably from them, [ ] faithfully follow their calling, [ ] present to the said mayor and aldermen the defaults of others undertaking, so often as should be necessary, [ ] to be ready, at all times when they should be warned, to attend the maimed or wounded and others, [ ] to give truthful information to the officers of the city as to such maimed, wounded, or others whether they be in peril of death or not, and [ ] to faithfully do all other things touching their calling. 	some young girls of good families were boarded at nunneries to be taught there. some upper class widows retired there. only women were allowed to be present at a birth, at which they spread the knowledge of midwifery. as usual, many women died giving birth. various ways to prevent pregnancy were tried. it was believed that a baby grew from a seed of the father planted in the woman's body. 	infant mortality was especially high in boroughs and burgess family lines usually died out. a three-generation family span was exceptional in the towns, despite family wealth. 	after the plague, gentlemen no longer had their children learn to speak norman. the grammar schools taught in english instead of norman as of . bishops began to preach in english. english became the official language of parliament, in , and in the courts, replacing norman and latin. 	the requirements of elementary and higher studies were adjusted in and began the public school system. william of wykeham's school, st. mary college of winchester in oxford was the prototype. the curriculum was civil law, canon law, medicine, with astronomical instruments that students made, theology, and the arts. the arts textbooks were still grammar, logic, donatus, and aristotle. many laymen were literate, for instance country gentry, merchants, and craftsmen. laymen instead of clerics were now appointed to the great offices of state. 	a will in in which a wealthy citizen arranges for one son to become an attorney and the other a merchant: "will of william de tonge, citizen of london: one hundred marks [ , s.] each to my two sons. and i will that my said two sons shall live upon the profits of the money bequeathed to them above until the age of twenty years. and if my said two sons be well learned in grammar and adorned with good manners, which shall be known at the end of twenty years, and the elder son wish to practice common law, and if it is known that he would spend his time well in that faculty, i will that over and above the profit of the said one hundred marks he shall have yearly from my rents for the term of seven years five marks [ s.]. and if he should waste his time aforesaid, or if he should marry foolishly and unsuitably, i will that he receive nothing more of the said five marks. and if younger son wishes to attend the university of oxford or to establish himself well in the mystery of a merchant after the age of twenty years, and [if] there be knowledge of his praiseworthy progress in his faculty or his carefulness in trading ... i will that he shall receive five marks yearly in the manner described above for his maintenance, over and above the profit of the said one hundred marks to him bequeathed, for the space of seven years; and if he behave himself otherwise, i will that thereupon he be excluded from the said five marks. and in case the said bequest of marks [ , s.] to him and his brother shall be annulled so that he shall have nothing therefrom ... then the said marks shall be spent upon all the yearly chaplains who can be had to celebrate divine service in the church of all hallows for my soul." 	most great lords were literate. many stories described good men, who set an example to be followed, and bad men, whose habits were to be avoided. stories were written about pilgrimage vacations of ordinary people to religious sites in england. will langland's poem "the vision of william concerning piers plowman" portrays a pilgrimage of common people to the shrine of truth led by a virtuous laborer. mystics wrote practical advice with transcendental teaching, for instance "scale of perfection" attributed to walter hilton and "cloud of unknowing". richard rolle wrote about spiritual matters, probably the "prick of conscience". richard de bury wrote "philobiblon" about book lovers. jean froissart wrote the "chronicles" on knights. courtly ideals were expressed in "sir gawaine and the grene knyght", wherein the adventures of the hero, an arthur knight, are allegorical in the struggle against the world, the flesh, and the devil ( ). "pearl" eulogized all that is pure and innocent on the event of the death of a two year old child. marco polo's book of discoveries on his journey to china was known. 	geoffrey chaucer was a squire and diplomat of the king. his "tales of the canterbury pilgrims" portrayed characters of every social class, including the knight with his squire, abbot, prioress, nun, priest, monk, friar, poor parson of the country, summoner (who enforced the jurisdiction and levied the dues of the church courts), pardoner (sold pardons from the pope), scholar, attorney, doctor, merchant, sailor, franklin, yeoman, haberdasher, tapestry- maker, ploughman, cook, weaver, dyer, upholsterer, miller, reeve, carpenter. there were chaucer stories about a beautiful and virtuous wife disliked by her mother-in-law, the difficulty of marriage between people of different religions, the hatred of a poor person by his brother and his neighbor, rich merchants who visited other kingdoms, the importance of a man himself following the rules he sets for other people's behavior, the spite of a man for a woman who rejected him, the relative lack of enthusiasm of a wife for sex as compared to her husband, a mother giving up her own comfort for that of her child, the revenge killing of a murderer by the dead man's friends, the joy of seeing a loved one after years of separation, that life is more sad than happy, that lost money can be retrieved, but time lost is lost forever. 	other stories in the canterbury tales were about two men who did not remain friends after they fell in love with the same woman, about a child who preferred to learn from an older child than from his schoolteacher, about a wife who convinced her husband not to avenge her beating for the sake of peace, about a man who woke up from bad dreams full of fear, about a man wanting to marry a beautiful woman but later realizing a plain wife would not be pursued by other men, about a man who drank so much wine that he lost his mental and physical powers, about a woman who married for money instead of love, about a man who said something in frustration which he didn't mean, about a person brought up in poverty who endured adversity better than one brought up in wealth, about a wife who was loving and wise, about a good marriage being more valuable than money, about a virgin who committed suicide rather than be raped, about a wife persuaded to adultery by a man who said he would otherwise kill himself, about three men who found a pile of gold and murdered each other to take it all, about an angry man who wanted to kill, about a malicious man who had joy in seeing other men in trouble and misfortune, about a man whose face turned red in shame, about a wife expecting to have half of what her husband owned. 	political songs and poems were written about the evil times of king edward ii, the military triumphs of king edward iii, and the complaints of the poor against their oppressors, such as "song of the husbandman". john gower wrote moralizing poems on the villein's revolt, the sins of the clergy and attorneys, and the bad rule of king richard ii, who in succeeded edward iii. robin hood ballads were popular. the minstrel, who was a honorable person, replaced the troubadour of older times. 	there were many colleges at oxford and cambridge due to the prohibition of gifts to the church. laymen instead of ecclesiastics were appointed as chancellor. the masters at oxford got rid of ecclesiastical supervision by a bishop and archdeacon by . one could be admitted as a student at age thirteen. the rate of maintenance for a student was d. weekly. 	a bachelor of arts degree was granted after four years of study and an oral exam. required reading in for the bachelor's degree was the new logic of aristotle ("prior and posterior analytics" e.g. on syllogistic logic and deduction, the "topics", or the "sophistical refutations", e.g. logical fallacies such as from 'all a are b' to 'all b are a'), and a selection from these aristotle works on physics: "of heaven and earth", "on the soul", "of meteors", "of birth and decay", or "of feeling and what is felt" with "of memory and recollection" and "of sleep and waking", or "of the movement of animals" with "of minor points in natural history". 	a master of arts degree could be awarded after three more years of study and teaching. a doctorate degrees in theology required ten more years of study. a doctorate in civil or canon law required eight more years. a man with a degree in canon law who wanted to practice in a certain bishop's court had to first satisfy this bishop of his competence. 	another source of legal learning was in london, where the guilds gave rise to the inns of court. they used the register of writs, the case law of the year books, and disputation to teach their students. 	for a doctorate in medicine from oxford or cambridge, five more years plus two years of practice were required. surgery was not taught because it was considered manual labor, and there was some feeling that it was a sacrilege and dishonorable. urinalysis and pulse beat were used for diagnosis. epilepsy and apoplexy were understood as spasms inside the head. it was known what substances served as laxatives and diuretics. teeth were extracted, eye cataracts were removed with a silver needle, and skin from the arm was grafted onto a mutilated face. 	englishmen who had collected books on philosophy, medicine, astronomy, and history and literature books from the continent gave their collections to the universities, which started their libraries. paper supplemented parchment, so there were more books. 	england was still an agricultural rather than a manufacturing country. imported were cloth, silks, linen, velvets, furs, glass, wines, candles, millstones, amber, iron, and mercury. exported were wool, leather, lead, tin, and alabaster for sculpturing. merchant adventurers came to manufacture cloth good enough for export and began to buy up raw wool in such quantity that its export declined. they took their cloth abroad to sell, personally or by agents. 	an oxford theologian and preacher, john wyclif, voiced the popular resentment of the materialism of the church, benefit of clergy, immorality of priests, and the selling of indulgences and pardons. encouraged by the king, he argued against the supremacy of the papal law over the king's courts and against payments to the papacy. he opined that the church had no power to excommunicate. the friars had become mere beggars and the church was still wealthy. he proposed that all goods should be held in common by the righteous and that the church should hold no property but be entirely spiritual. he believed that people should rely on their individual consciences. he thought that the bible should be available to people who could read english so that the people could have a direct access to god without priests or the pope. towards this end, he translated it from latin into english in . his preachers spread his views throughout the country. the church then possessed about one-third of the land of the nation. 	parliament met about twice a year and lasted from two weeks to several months. there was a well-defined group of about fifty barons and a few spiritual peers who were always summoned to parliament and who composed a house of lords. "peer" now meant a member of the house of lords. all peers had the right to approach the king with advice. the baron peers reasoned that the custom of regular attendance was a right that should be inherited by the eldest son, or by a female heir, if there were no male heirs. however, the theory of nobility by blood as conveying political privilege had no legal recognition. no female could attend parliament; the husband of a baroness attended parliament in her stead. edward iii and richard ii created new peers with various titles of dignity, such as duke and marquess, which were above barons and earls. the dukes and marquesses were identified with a territorial designation such as an english county or county town. whenever a parliament was assembled the commons were present. the commons was composed of representatives from boroughs and counties. each new parliament required an election of representatives. the members of the commons were generally the most prominent and powerful economic and political figures of the county and were repeatedly reelected. the electors were usually influenced by the sheriff or a powerful lord who suggested suitable men. the wealthy merchants typically represented the boroughs and paid much of the taxes. under edward iii, the commons took a leading part in the granting of taxes and the presentation of petitions and became a permanent and distinct body, the house of commons, with a spokesman or "speaker", chosen by the crown, and a clerk. the speaker came to be an intermediary between the commons and the king and between the commons and the lords. a clerk of parliament registered its acts and sat with the lords. a clerk of the crown superintended the issue of writs and the receipt of the returns and attested the signature of the king on statutes. it became a regular practice for the chancellor to open parliament with an opportunity to present petitions after his opening speech. the king then referred them to certain peers and justices, who decided to which court, or parliament, they should be sent. during the s, the number of barons going to parliament gradually decreased. 	at the parliament, ("the good parliament") the commons, which formerly had only consented to taxes, took political action by complaining that the king's councilors had grown rich by war profiteering at the cost of impoverishing the nation and the people were too poor to endure any more taxation for the war and held a hearing on financial malfeasance and dishonesty of two ministers. the chamberlain had extorted enormous sums, had intercepted fines meant for the king's treasury, and had sold a castle to the enemy. the steward had bought debts of the king's. the house of lords, the high court of parliament, found the charges proved and dismissed them permanently from office. this established the constitutional means for impeachment and prosecution by the commons and removal by the house of lords of ministers. by this process, there could be no royal intimidation, as there could be in the ordinary courts. the commons demanded that its members be elected by county citizens rather than appointed by the sheriff. 	the roles of parliament and the king's council are starting to differentiate into legislative and executive, respectively. the legislative function is lawmaking, and the executive is regulation-making that refines and effectuates the laws of parliament. but the legislative, executive, and judicial authorities have not as yet become so completely separated that they cannot on occasion work together. 	sheriffs dealt directly with the king instead of through an earl. 	from to , resistance was an ordinary remedy for political disagreements. if a popular leader raised his standard in a popular cause, an irregular army could be assembled in a day. (there was no regular army, since england was protected by the sea from invasion.) so misgovernment by a king would be quickly restrained. society recovered quickly from conflict and civil war because the national wealth consisted chiefly in flocks and herds and in the simple buildings inhabited by the people. in a week after armed resistance, the agricultural worker was driving his team. there was little furniture, stock of shops, manufactured goods, or machinery that could be destroyed. 	to support a war with france, the staple was reinstated by statute of after an experiment without it in which profits of a staple went to staples outside the nation. wool exports were inspected for quality and taxed through his officials only at the designated staple ports. these officials included collectors, controllers, searchers [inspectors], surveyors, clerks, weighers, and crane-keepers. wool, woolfells, leather, and lead sold for export had to go through the staple town. the penalty was forfeiture of lands, tenements, goods, and chattel. the mayor and constables of the staple were elected annually by the native and foreign merchants of the place. the mayor gave validity to contracts for a set fee, by seal of his office. he and the constables had jurisdiction over all persons and things touching the staple, which was regulated by the law merchant in all matters of contract, covenant, debt, and felonies against foreign merchants. a hue and cry was required to be raised and followed for anyone taking a cart of merchandise or slaying a merchant, denizen [resident alien] or alien, or the town would answer for the robbery and damage done. in , calais, a continental town held by the english, became the staple town for lead, tin, cloth, and wool and was placed under a group of london capitalists: the merchants of the staple. all exports of these had to pass through calais, where customs tax was collected. the staple statute remained basically unchanged for the next years. 	guns and cannon were common by . in the s and s, the king relied on mercenaries hired directly or by contract with his great nobles for foreign wars. the king reimbursed the contractors with the profits of war, such as the ransoms paid by the families of rich prisoners. the fighting men supplemented their pay by plunder. featherbeds and blooded horses were favorite spoils of war brought back to england from the continent. as new techniques with footmen came into being, the footmen became the core of the army and the knightly abilities of the feudal tenants-in-chief became less valuable. 	many lords got men to fight with them by livery and maintenance employment agreements such as this one of : "bordeaux, february . this indenture, made between our lord king john [of gaunt, of castile, etc.] of the one part and symkyn molyneux, esquire, of the other part, witnesses that the said symkyn is retained and will remain with our said lord for peace and for war for the term of his life, as follows: that is to say, the said symkyn shall be bound to serve our said lord as well in time of peace as of war in whatsoever parts it shall please our said lord, well and fitly arrayed. and he shall be boarded as well in time of peace as of war. and he shall take for his fees by the year, as well in time of peace as of war, ten marks sterling [ s.] from the issues of the duchy of lancaster by the hands of the receiver there who now is or shall be in time to come, at the terms of easter and michaelmas by even portions yearly for the whole of his life. and, moreover, our lord has granted to him by the year in time of war five marks sterling [ s.] by the hands of the treasurer of war for the time being. and his year of war shall begin the day when he shall move from his inn towards our said lord by letters which shall be sent to him thereof, and thenceforward he shall take wages coming and returning by reasonable daily [payments] and he shall have fitting freightage for him, his men, horses, and other harness within reason, and in respect of his war horses taken and lost in the service of our said lord, and also in respect to prisoners and other profits of war taken or gained by him or any of his men, the said our lord will do to him as to other squires of his rank." 	forecastles and stern castles on ships were lower and broader. underneath them were cabins. the english ship was still single masted with a single square sail. a fleet was formed with over ships selected by the english admirals acting for the king at the ports. men were seized and pressed into service and criminals were pardoned from crimes to become sailors in the fleet, which was led by the king's ship. they used the superior longbow against the french sailor's crossbow. in , the tower of london had four mounted fortress cannon and the port of dover had six. 	the war's disruption of shipping caused trade to decline. but the better policing of the narrow seas made piracy almost disappear. 	english merchants may carry their merchandise in foreign ships if there are no english ships available. 	anyone may ship or carry grain out of the nation, except to enemies, after paying duties. but the council may restrain this passage when necessary for the good of the nation. any merchant, privy or stranger, who was robbed of goods on the sea or lost his ship by tempest or other misfortune on the sea banks, his goods coming to shore could not be declared wreck, but were to be delivered to the merchant after he proves ownership in court by his marks on the goods or by good and lawful merchants. 	all stakes and obstacles set up in rivers impeding the passage of boats shall be removed. 	waterpower was replacing foot power in driving the mills where cloth was cleaned and fulled. 	a boundary dispute between two barons resulted in the first true survey map. nine cow pastures were divided by a boundary marked by a shield on a pole which the commission of true and sworn men had set up. 	king richard ii, an irresponsible sovereign, asserted an absolute supremacy of the king over parliament and declared certain statutes which he claimed to have been forced on him to be revoked. he interfered with county elections of knights to parliament by directing sheriffs to return certain named persons. he wanted to dispense altogether with parliament and instead have a committee of representatives. he claimed that the goods of his subjects were his own and illegally taxed the counties. there were many disputes as to who should be his ministers. high treason was extended to include making a riot and rumor, compassing or purposing to depose the king, revoking one's homage or liege to the king, or attempting to repeal a statute. when henry bolingbroke reported to parliament that another lord had cast doubt on the king's trustworthiness, a duel between them was arranged. but richard, probably fearing the gain of power of the lord who won, instead exiled the two lords. he took possession of the lancaster estates to which bolingbroke was heir and forbade this inheritance. this made all propertied men anxious and they united behind bolingbroke in taking up arms against richard. richard was not a warrior king and offered to resign the crown. the "merciless parliament" of swept out richard's friends. parliament deposed and imprisoned richard. it revoked the extensions to the definition of high treason. it elected bolingbroke, who claimed to be a descendant of henry iii, to be king henry iv. this action established clearly that royal decrees were subordinate to parliamentary statutes, that parliament was the ultimate legal arbiter of the realm, and that the consent of parliament was necessary in determining kingship. the house of commons became very powerful. it was responsible for the major part of legislation. it's members began to assert the privilege of free speech. that is, they wanted to discuss other matters than what was on the king's agenda and they opposed punishment for what they said unless it was treasonable. henry iv agreed to their request not to consider reports of proceedings unless they came to him through official channels. - the law - 	high treason was defined by statute in as levying war against the king, aiding the king's enemies, compassing or imagining the death of the king, queen, or their eldest son and heir, or violating the queen or the eldest unmarried daughter or the wife of the king's eldest son and heir; making or knowingly using counterfeits of the king's great or privy seal or coinage; or slaying the chancellor, treasurer, or any justice in the exercise of their duty. the penalty was forfeit of life and lands. 	petit treason was defined by statute and included a servant slaying his master, a wife her husband, or a man his lord, to whom was owed faith and obedience. 	no one shall tell false news or lies about prelates, dukes, earls, barons, and other nobles and great men or the chancellor, treasurer, a justice, clerk of the privy seal, steward of the king's house whereby debates and discords might arise between these lords or between the lords and the commons. cases shall be tried by the king's council, which included the chancellor, treasurer, and chief justices. 	preachers drawing crowds by ingenious sermons and inciting them to riot shall be arrested by sheriffs and tried by the ecclesiastical court. 	any stranger passing at night of whom any have suspicion shall be arrested and taken to the sheriff. 	no man shall ride with a spear, upon pain of forfeiting it. 	no servant of agriculture or laborer shall carry any sword or dagger, or else forfeit it, except in time of war in defense of the nation. he may carry bow and arrow [for practice] on sundays and holy days, when he should not play games such as tennis, football, or dice. 	no one may enter another's land and tenements by strong hand nor with a mob, upon pain of imprisonment and ransom at the king's will. 	charters, releases, obligations, quitclaim deeds and other deeds burnt or destroyed in uprisings shall be reissued without fee, after trial by the king and his council. manumissions, obligations, releases and other bonds and feoffments in land made by force, coercion or duress during mob uprisings are void. 	men who rape and women consenting after a rape shall lose their inheritance and dower and joint feoffments. the husbands, or father or next of kin of such women may sue the rapist by inquisition, but not by trial by combat. the penalty is loss of life and member. 	the statute of laborers of required all workers, from tailors to ploughmen, to work only at pre-plague wage rates and forced the vagrant peasant to work for anyone who claimed him or her. it also encouraged longer terms of employment as in the past rather than for a day at a time. statutory price controls on food limited profits to reasonable ones according to the distance of the supply. later, wages were determined in each county by justices of the peace according to the dearth of victuals while allowing a victualer a reasonable profit and a penalty was specified as paying the value of the excess wages given or received for the first offense, double this for the second offense, and treble this or forty days imprisonment for the third offense. 	a fugitive laborer will be outlawed, and when found, shall be burnt in the forehead with the letter "f" for falsity. 	children who labored at the plough and cart or other agriculture shall continue in that labor and may not go into a craft. 	a statute of designed to stop hoarding various types of merchandise until a type became scarce so to sell it at high prices, required merchants to deal in only one type of merchandise. it also required craftsmen to work in only one craft as before (except women who traditionally did several types of handiwork). this was repealed a year later. 	where scarcity has made the price of poultry high, it shall be lowered to d. for a young capon, d. for an old capon or a goose, d. for a hen, and d. for a pullet. 	the fares for passage on boats on fresh waters and from dover to the continent shall remain at their old rate. 	any merchant selling at a fair after it has ended will forfeit to the king twice the value of that sold. 	anyone finding and proving cloth contrary to the assize of cloth shall have one-third of it for his labor. 	no shoemaker nor cordwainer shall tan their leather and no tanner shall make shoes, in order that tanning not be false or poorly done. 	all denizen [foreigner permitted to reside in the realm with certain rights and privileges] and alien merchants may buy and sell goods and merchandise, in gross, in any part of the country, despite town charters or franchises, to anyone except an enemy of the king. they may also sell small wares: victuals, fur, silk, coverchiefs [an item of woman's apparel], silver wire, and gold wire in retail, but not cloth or wine. they must sell their goods within three months of arrival. any alien bringing goods to the nation to sell must buy goods of the nation to the value of at least one-half that of his merchandise sold. these merchants must engage in no collusion to lower the price of merchandise bought, take merchandise bought to the staple, and promise to hold no staple beyond the sea for the same merchandise. an amendment disallowed denizens from taking wools, leather, woolfells, or lead for export, but only strangers. 	towns failing to bring disturbers of this right to justice shall forfeit their franchise to the king and pay double damages to the merchant. the disturber shall be imprisoned for a year. 	cloth may not be tacked nor folded for sale to merchants unless they are opened to the buyers for inspection, for instance for concealed inferior wool. workers, weavers, and fullers shall put their seals to every cloth. anyone may bring his own wools, woolfells, leather, and lead to the staple to sell without being compelled to sell them in the country. special streets or warehouses were appointed with warehouse rent fixed by the mayor and constables with four of the principal inhabitants. customs duties were regulated and machinery provided for their collection. no one may forestall or regrate, that is, buy at one price and sell at a higher price in the same locale. forestallers were those who bought raw material on its way to market. regrators were those who tried to create a "corner" in the article in the market itself. 	imported cloth shall be inspected by the king's officials for non- standard measurements or defects [despite town franchises]. 	no one shall leave the nation except at designated ports, on pain of one year's imprisonment. 	social distinctions by attire were mandated by statute of . a servant, his wife, son, or daughter, shall only wear cloth worth no more than s. and shall not have more than one dish of meat or fish a day. carters, ploughmen, drivers of the plough, oxherds, cowherds, shepherds, and all other people owning less than s. of goods and chattels shall only wear blanket and russet worth no more than d. and girdles of linen according to their estate. craftsmen and free peasants shall only wear cloth worth no more than s. esquires and gentlemen below the rank of knight with no land nor rent over , s. a year shall only wear cloth worth no more than s., no gold, silver, stone, fur, or the color purple. esquires with land up to , s. per year may wear s. cloth, cloth of silk and silver, miniver [grey squirrel] fur and stones, except stones on the head. merchants, citizens, burgesses, artificers, and people of handicraft having goods and chattels worth , s. shall wear cloth the same value as that worn by esquires and gentlemen with land or rent within , s. per year. the same merchants and burgesses with goods and chattels worth , s. and esquires and gentlemen with land or rent within s. per year may not wear gold cloth, miniver fur, ermine [white] fur, or embroidered stones. a knight with land or rents within , s. yearly are limited to cloth of s., but his wife may wear a stone on her head. knights and ladies with land or rents within , s. to , s. yearly may not wear fur of ermine or of letuse, but may wear gold, and such ladies may wear pearls as well as stones on their heads. the penalty is forfeiture of such apparel. this statute is necessary because of "outrageous and excessive apparel of diverse persons against their estate and degree, to the great destruction and impoverishment of all the land". 	if anyone finds a hawk [used to hunt birds, ducks, and pheasant] that a lord has lost, he must take it to the sheriff for keeping for the lord to claim. if there is no claim after four months, the finder may have it only if he is a gentleman. if one steals a hawk from a lord or conceals from him the fact that it has been found, he shall pay the price of the hawk and be imprisoned for two years. 	no laborer or any other man who does not have lands and tenements of the value of s. per year shall keep a greyhound or other hound or dog to hunt, nor shall they use nets or cords or other devices to take deer, hare, rabbits, nor other gentlemen's game, upon pain of one year imprisonment. (the rabbit had been introduced by the normans.) this law was primarily intended to stop the meetings of laborers and artificers. 	no man shall eat more than two courses of meat or fish in his house or elsewhere, except at festivals, when three are allowed [because great men ate costly meats to excess and the lesser people were thereby impoverished]. 	no one may export silver, whether bullion or coinage, or wine except foreign merchants may carry back the portion of their money not used to buy english commodities. the penalty for bringing false or counterfeit money into the nation is loss of life and member. an assigned searcher [inspector] for coinage of the nation on the sea passing out of the nation or bad money in the nation shall have one third of it. no foreign money may be used in the nation. 	each goldsmith shall have an identifying mark, which shall be placed on his vessel or work only after inspection by the king's surveyor. 	no one shall give anything to a beggar who is capable of working. 	vagrants begging in london were banned by this ordinance: "forasmuch as many men and women, and others, of divers counties, who might work, to the help of the common people, have betaken themselves from out of their own country to the city of london and do go about begging there so as to have their own ease and repose, not wishing to labor or work for their sustenance, to the great damage of the common people; and also do waste divers alms which would otherwise be given to many poor folks, such as lepers, blind, halt, and persons oppressed with old age and divers other maladies, to the destruction of the support of the same - we do command on behalf of our lord the king, whom may god preserve and bless, that all those who go about begging in the said city and who are able to labor and work for the profit of the common people shall quit the said city between now and monday next ensuing. and if any such shall be found begging after the day aforesaid, the same shall be taken and put in the stocks on cornhill for half a day the first time, and the second time he shall remain in the stocks one whole day, and the third time he shall be taken and shall remain in prison for forty days and shall then forswear the said city forever. and every constable and the beadle of every ward of the said city shall be empowered to arrest such manner of folks and to put them in the stocks in manner aforesaid." 	the hundred year cry to "let the king live on his own" found fruition in a statute requiring consent of the parliament before any commission of array for militia could be taken and a statute requiring purchases of goods and means of conveyance for the king and his household to be made only by agreement with the seller and with payment to him before the king traveled on, instead of at the low prices determined unilaterally by the king's purveyor. 	every man who has wood within the forest may take houseboot [right to take wood for repair of one's house] and heyboot [right to take material for the maintenance of hedges and fences, and the making of farming utensils] in his wood without being arrested so long as it take such within the view of the foresters. 	no fecal matter, dung, garbage, or entrails of animals killed shall be put into ditches or rivers or other waters, so that maladies and diseases will not be caused by corrupted and infected air. the penalty is s. to the king after trial by the chancellor. 	gifts or alienation of land to guilds, fraternities, or towns are forbidden. instead, it escheats to its lord, or in his default, to the king. 	no man will be charged to go out of his county to do military service except in case of an enemy invasion of the nation. men who chose to go into the king's service outside the nation shall be paid wages by the king until their return. 	admiralty law came into being when ancient naval manners and customs were written down as the "black book of the admiralty". this included the organization of the fleet under the admiral, sea-maneuver rules such as not laying anchor until the admiral's ship had, engagement rules, and the distribution of captured goods: one-fourth to the vessel owner, one-fourth to the king if the seamen were paid by the king's wages, and the rest divided among the crew and admiral. stealing a boat or an anchor holding a boat was punishable by hanging. stealing an oar or an anchor was punishable by forty days imprisonment for the first offense, six months imprisonment for the second, and hanging for the third. desertion was punishable by loss of double the amount of wages earned and imprisonment for one year. cases were tried by jury in the admiral's court. 	wines, vinegar, oil and honey imported shall be gauged by the king's appointees. - judicial procedure - 	the office of justice of the peace was developed and filled by knights, esquires and gentlemen who were closely associated with the magnates. there was no salary nor any requirement of knowledge of the law. they were to pursue, restrain, arrest, imprison, try, and duly punish felons, trespassers, and rioters according to the law. they were expected to arrest vagrants who would not work and imprison them until sureties for good behavior was found for them. they also were empowered to inspect weights and measures. trespass included forcible offenses of breaking of a fence enclosing private property, assault and battery, false imprisonment, and taking away goods and chattels. 	the action of trespass was replacing private suits for murder and for personal injury. 	pardons may be given only for slaying another in one's own defense or by misfortune [accident], and not for slaying by lying in wait, assault, or malice aforethought. 	justices of assize, sheriffs, and justices of the peace and mayors shall have power to inquire of all vagabonds and compel them to find surety of their good bearing or be imprisoned. 	a reversioner shall be received in court to defend his right when a tenant for a term of life, tenant in dower, or by curtesy of the nation, or in [fee] tail after possibility of issue extinct are sued in court for the land, so as to prevent collusion by the demandants. 	a person in debt may not avoid his creditors by giving his tenements or chattels to his friends in collusion to have the profits at his will. 	where there was a garnishment given touching a plea of land, a writ of deceit is also maintainable. 	actions of debt will be heard only in the county where the contract was made. the action of debt includes enforcement of contracts executed or under seal, e.g. rent due on a lease, hire of an archer, contract of sale or repair of an item. thus there is a growing connection between the actions of debt and contract. 	executors have an action for trespass to their testators' goods and chattels in like manner as did the testator when alive. 	if a man dies intestate, his goods shall be administered by his next and most lawful friends appointed. such administrators shall have the same powers and duties as executors and be accountable as are executors to the ecclesiastical court. 	children born to english parents in parts beyond the sea may inherit from their ancestors in the same manner as those born in the nation. 	a person grieved by a false oath in a town court proceeding may appeal to the king's bench or common pleas, regardless of any town franchise. 	it was exceptional for the king to sit on the court of the king's bench, which worked independently of the king.and became confined to the established common law. 	decisions of the common law courts are appealable to the house of lords. the king's council members who are not peers, in particular the justices and the masters of the chancery, are summoned by the house of lords only as mere assistants. parliament may change the common law by statute. the right of a peer to be tried for capital crimes by a court composed of his peers was established. there was a widespread belief that all the peers are by right the king's councilors. 	no attorney may practice law and also be a justice of assize. no justice may take any gift except from the king nor give counsel to any litigant before him. 	in , there was a statute against maintainers, instigators, barretors, procurers, and embracers of quarrels and inquests because of great and outrageous oppressions of parties in court. because this encouraged maintenance by the retinue of lords with fees, robes, and other liveries, such maintainers were to be put out of their lords' service, and could not be retained by another lord. no one was to give livery to anyone else, except household members and those retained for life for peace or for war. justices of the peace were authorized to inquire about yeomen, or other of lower estate than squire, bearing livery of any lord. 	whereas it is contained in the magna carta that none shall be imprisoned nor put out of his freehold, nor of his franchises nor free custom, unless it be by the law of the land; it is established that from henceforth none shall be taken by petition or suggestion made to the king unless by indictment of good and lawful people of the same neighborhood where such deeds be done, in due manner, or by process made by writ original at the common law; nor that none be out of his franchise, nor of his freeholds, unless he be duly brought into answer and before judges of the same by the course of law. 	the chancery came to have a separate and independent equitable jurisdiction. it heard petitions of misconduct of government officials or of powerful oppressors, fraud, accident, abuse of trust, wardship of infants, dower, and rent charges. because the common law and its procedures had become technical and rigid, the chancery was given equity jurisdiction by statute in . king edward iii proclaimed that petitions for remedies that the common law didn't cover be addressed to the chancellor, who was not bound by established law, but could do equity. in chancery, if there is a case that is similar to a case for which there is a writ, but is not in technical conformity with the requirements of the common law for a remedy, then a new writ may be made for that case by the chancellor. these were called "actions on the case". also, parliament may create new remedies. there were so many cases that were similar to a case with no remedy specified in the common law, that litigants were flowing into the chancery. the chancellor gave swift and equitable relief, which was summary. with the backing of the council, the chancellor made decisions implementing the policy of the statute of laborers. most of these concerned occupational competency, for instance negligent activity of carriers, builders, shepherds, doctors, cloth workers, smiths, innkeepers, and gaolers. for instance, the common law action of detinue could force return of cloth bailed for fulling or sheep bailed for pasturing, but could not address damages due to faulty work. the chancellor addressed issues of loss of wool, dead lambs, and damaged sheep, as well as dead sheep. he imposed a legal duty on innkeepers to prevent injury or damage to a patron or his goods from third parties. a dog bite or other damage by a dog known by its owner to be vicious was made a more serious offense than general damage by any dog. a person starting a fire was given a duty to prevent the fire from damaging property of others. the king will fine instead of seize the land of his tenants who sell or alienate their land, such fine to be determined by the chancellor by due process. 	only barons who were peers of the house of lords were entitled to trial in the house of lords. in practice, however, this pertained only to major crimes. 	treason was tried by the lords in parliament, by bill of "attainder". it was often used for political purposes. most attainders were reversed as a term of peace made between competing factions. 	the king's coroner and a murderer who had taken sanctuary in a church often agreed to the penalty of confession and perpetual banishment from the nation as follows: "memorandum that on july , [ ], henry de roseye abjured the realm of england before john bernard, the king's coroner, at the church of tendale in the county of kent in form following: 'hear this, o lord the coroner, that i, henry de roseye, have stolen an ox and a cow of the widow of john welsshe of retherfeld; and i have stolen eighteen beasts from divers men in the said county. and i acknowledge that i have feloniously killed roger le swan in the town of strete in the hundred of strete in the rape [a division of a county] of lewes and that i am a felon of the lord king of england. and because i have committed many ill deeds and thefts in his land, i abjure the land of the lord edward king of england, and [i acknowledge] that i ought to hasten to the port of hastings, which thou hast given me, and that i ought not to depart from the way, and if i do so i am willing to be taken as a thief and felon of the lord king, and that at hastings i will diligently seek passage, and that i will not wait there save for the flood and one ebb if i can have passage; and if i cannot have passage within that period, i will go up to the knees into the sea every day, endeavoring to cross; and unless i can do so within forty days, i will return at once to the church, as a thief and a felon of the lord king, so help me god." 	property damage by a tenant of a london building was assessed in a case: "john parker, butcher, was summoned to answer clement spray in a plea of trespass, wherein the latter complained that the said john, who had hired a tavern at the corner of st. martin- le-grand from him for fifteen months, had committed waste and damage therein, although by the custom of the city no tenant for a term of years was entitled to destroy any portion of the buildings or fixtures let to him. he alleged that the defendant had taken down the door post of the tavern and also of the shop, the boarded door of a partition of the tavern, a seat in the tavern, a plastered partition wall, the stone flooring in the chamber, the hearth of the kitchen, and the mantelpiece above it, a partition in the kitchen, two doors and other partitions, of a total value of s. four pounds, s. d., and to his damage, s. [ pounds]. the defendant denied the trespass and put himself on the country. afterwards a jury [panel]... found the defendant guilty of the aforesaid trespass to the plaintiff's damage, d. judgment was given for that amount and a fine of s. to the king, which the defendant paid immediately in court." 	the innkeeper's duty to safeguard the person and property of his lodgers was applied in this case: "john trentedeus of southwark was summoned to answer william latymer touching a plea why, whereas according to the law and custom of the realm of england, innkeepers who keep a common inn are bound to keep safely by day and by night without reduction or loss men who are passing through the parts where such inns are and lodging their goods within those inns, so that, by default of the innkeepers or their servants, no damage should in any way happen to such their guests ... on monday after the feast of the purification of the virgin mary in the fourth year of the now king by default of the said john, certain malefactors took and carried away two small portable chests with s. and also with charters and writings, to wit two writings obligatory, in the one of which is contained that a certain robert bour is bound to the said william in , s. and in the other that a certain john pusele is bound to the same william in s. pounds ... and with other muniments [writings defending claims or rights] of the same william, to wit his return of all the writs of the lord king for the counties of somerset and dorset, whereof the same william was then sheriff, for the morrow of the purification of the blessed mary the virgin in the year aforesaid, as well before the same lord the king in his chancery and in his bench as before the justices of the king's common bench and his barons of his exchequer, returnable at westminster on the said morrow, and likewise the rolls of the court of cranestock for all the courts held there from the first year of the reign of the said lord the king until the said monday, contained in the same chests being lodged within the inn of the same john at southwark and the said john ... says that on the said monday about the second hour after noon the said william entered his inn to be lodged there, and at once when he entered, the same john assigned to the said william a certain chamber being in that inn, fitting for his rank, with a door and a lock affixed to the same door with sufficient nails, so that he should lie there and put and keep his things there, and delivered to the said william the key to the door of the said chamber, which chamber the said william accepted... william says that ... when the said john had delivered to him the said chamber and key as above, the same william, being occupied about divers businesses to be done in the city of london, went out from the said inn into the city to expedite the said businesses and handed over the key of the door to a certain servant of the said william to take care of in meantime, ordering the servant to remain in the inn meanwhile and to take care of his horses there; and afterwards, when night was falling, the same william being in the city and the key still in the keeping of the said servant, the wife of the said john called unto her into her hall the said servant who had the key, giving him food and drink with a merry countenance and asking him divers questions and occupying him thus for a long time, until the staple of the lock of the door aforesaid was thrust on one side out of its right place and the door of the chamber was thereby opened and his goods, being in the inn of the said john, were taken and carried off by the said malefactors ... the said john says ...[that his wife did not call the servant into the hall, but that] when the said servant came into the said hall and asked his wife for bread and ale and other necessaries to be brought to the said chamber of his master, his wife immediately and without delay delivered to the same servant the things for which he asked ... protesting that no goods of the same william in the said inn were carried away by the said john his servant or any strange malefactors other than the persons of the household of the said william." 	on the coram rege roll of is a case on the issue of whether a court crier can be seized by officers of a staple: "edmund hikelyng, 'crier', sues william baddele and wife maud, john olney, and william knyghtbrugge for assault and imprisonment at westminster, attacking him with a stick and imprisoning him for one hour on wednesday before st. martin, richard ii. baddele says mark faire of winchester was prosecuting a bill of debt for s. against edmund and john more before william brampton, mayor of the staple of westminster, and thomas alby and william askham, constables of the said staple, and on that day the mayor and the constables issued a writ of capias against edmund and john to answer mark and be before the mayor and the constables at the next court. this writ was delivered to baddele as sergeant of the staple, and by virtue of it he took and imprisoned edmund in the staple. maud and the others say they aided baddele by virtue of the said writ. edmund does not acknowledge baddele to be sergeant of the staple or mark a merchant of the staple or that he was taken in the staple. he is minister of the king's court of his bench and is crier under thomas thorne, the chief crier, his master. every servant of the court is under special protection while doing his duty or on his way to do it. on the day in question, he was at westminster carrying his master's staff of office before hugh huls, one of the king's justices, and william took him in the presence of the said justice and imprisoned him. the case is adjourned for consideration from hilary to easter." 	a law of equity began to be developed from decisions by the chancellor in his court of conscience from around . one such case was that of godwyne v. profyt sometime after . this petition was made to the chancellor: to the most reverend father in god, and most gracious lord, the bishop of exeter, chancellor of england. thomas godwyne and joan his wife, late wife of peter at more of southwerk, most humbly beseech that, whereas at michaelmas in the th year of our most excellent lord king richard who now is, the said peter at more in his lifetime enfeoffed thomas profyt parson of st. george's church southwerk, richard saundre, and john denewey, in a tenement with the appurtenances situated in southwerk and acres of land acres of meadow in the said parish of st. george and in the parish of our lady of newington, on the conditions following, to wit, that the said three feoffees should, immediately after the death of the said peter, enfeoff the said joan in all the said lands and tenements with all their appurtenances for the life of the said joan, with remainder after her decease to one nicholas at more, brother of the said peter, to hold to him and the heirs of his body begotten, and for default of issue, then to be sold by four worthy people of the said parish, and the money to be received for the same to be given to holy church for his soul; whereupon the said peter died. and after his death two of the said feoffees, richard and john, by the procurement of one john solas, released all their estate in the said lands and tenements to the said thomas profyt, on the said conditions, out of the great trust that they had in the said thomas profyt, who was their confessor, that he would perform the will of the said peter [at more] in the form aforesaid; and this well and lawfully to do the said thomas profyt swore on his verbum dei and to perform the said conditions on all points. and since the release was so made, the said thomas profyt, through the scheming and false covin of the said john solas, has sold all the lands and tenements aforesaid to the same john solas for ever. and the said john solas is bound to the said thomas profyt in pounds by a bond to make defense of the said lands and tenements by the bribery and maintenance against every one; and so by their false interpretation and conspiracy the said joan, nicholas, and holy church are like to be disinherited and put out of their estate and right, as is abovesaid, for ever, tortiously, against the said conditions, and contrary to the will of the said peter [at more]. may it please your most righteous lordship to command the said thomas profyt, richard saundre, and john denewy to come before you, and to examine them to tell the truth of all the said matter, so that the said joan, who has not the wherewithal to live, may have her right in the said lands and tenements, as by the examination before you, most gracious lord, shall be found and proved; for god and in way of holy charity. - - - chapter - - - - the times: - - 	this period, which begins with the reign of the usurper king, henry iv, is dominated by war: the last half of the year war with france, which, with the help of joan of arc, took all english land on the continent except the port of calais, and the war of the roses over the throne in england. the ongoing border fights with wales and scotland were fought by england's feudal army. but for fighting in france, the king paid barons and earls to raise their own fighting forces. when they returned to england, they fought to put their candidate on its throne, which had been unsteady since its usurpation by henry iv. all the great houses kept bands of armed retainers. these retainers were given land or pay or both as well as liveries [uniforms or badges] bearing the family crest. in the system of "livery and maintenance", if the retainer was harassed by the law or by enemies, the lord protected him. the liveries became the badges of the factions engaged in the war of the roses. the white rose was worn by the supporters of the house of york, and the red rose by supporters of the house of lancaster. great lords fought each other for property and made forcible entries usurping private property. nobles employed men who had returned from fighting in war to use their fighting skill in local defense.henry iv was the last true warrior king. 	in both wars, the musket was used as well as the longbow. to use it, powder was put into the barrel, then a ball rammed down the barrel with a rod, and then the powder lit by a hot rod held with one hand while the other hand was used to aim the musket. cannon were used to besiege castles and destroy their walls, so many castles were allowed to deteriorate. the existence of cannon also limited the usefulness of town walls for defense. but townspeople did not take part in the fighting. 	since the power of the throne changed from one faction to another, political and personal vindictiveness gave rise to many bills of attainder that resulted in lords being beheaded and losing their lands to the king. however, these were done by the form of law; there were no secret executions in england. families engaged in blood feuds. roving bands ravaged the country, plundering the people, holding the forests, and robbing collectors of crown revenue. some men made a living by fighting for others in quarrels. individual life and property were insecure. whole districts were in a permanent alarm of riot and robbery. the roads were not safe. there was fighting between lords and gangs of ruffians holding the roads, breaking into and seizing manor houses, and openly committing murders. 	peace was never well-kept nor was law ever well-executed, though fighting was suspended by agreement during the harvest. local administration was paralyzed by party faction or lodged in some great lord or some clique of courtiers. the elections of members to parliament was interfered with and parliament was rarely held. barons and earls fought their disputes in the field rather than in the royal courts. litigation was expensive, so men relied increasingly on the protection of the great men of their neighborhood and less on the king's courts for the safety of their lives and land. local men involved in court functions usually owed allegiance to a lord which compromised the exercise of justice. men serving in an assize often lied to please their lord instead of telling the truth. lords maintained, supported, or promoted litigation with money or aid supplied to one party to the detriment of justice. it was not unusual for lords to attend court with a great force of retainers behind them. many justices of the peace wore liveries of magnates and accepted money from them. royal justices were flouted or bribed. the king's writ was denied or perverted. for - s., a lord could have the king instruct his sheriff to impanel a jury which would find in his favor. a statute against riots, forcible entries, and, excepting the king, magnates' liveries of uniform, food, and badges to their retainers, except in war outside the nation, was passed, but was difficult to enforce because the offenders were lords, who dominated the parliament and the council. 	with men so often gone to fight, their wives managed the household alone. the typical wife had maidens of equal class to whom she taught household management, spinning, weaving, carding wool with iron wool-combs, heckling flax, embroidery, and making garments. there were foot-treadles for spinning wheels. she taught the children. each day she scheduled the activities of the household including music, conversation, dancing, chess, reading, playing ball, and gathering flowers. she organized picnics, rode horseback and went hunting, hawking to get birds, and hare-ferreting. she was nurse to all around her. if her husband died, she usually continued to manage the household because most men named their wife as executor of their will with full power to act as she thought best. the wives of barons shared their right of immunity from arrest by the processes of common law and to be tried by their peers. 	for ladies, close-fitting jackets came to be worn over close- fitting long gowns with low, square-cut necklines and flowing sleeves, under which was worn a girdle or corset of stout linen reinforced by stiff leather or even iron. her skirt was provocatively slit from knee to ankle. all her hair was confined by a hair net. headdresses were very elaborate and heavy, trailing streamers of linen. some were in the shape of hearts, butterflies, crescents, double horns, steeples, or long cones. men also wore hats rather than hoods. they wore huge hats of velvet, fur, or leather. their hair was cut into a cap-like shape on their heads, and later was shoulder-length. they wore doublets with thick padding over the shoulders or short tunics over the trucks of their bodies and tightened at the waist to emphasize the shoulders. their collars were high. their sleeves were long concoctions of velvet, damask, and satin, sometimes worn wrapped around their arms in layers. their legs and hips were covered with hosen, often in different colors. codpieces worn between the legs emphasized the sensuality of the age as did ladies' tight and low- cut gowns. men's shoes were pointed with upward pikes at the toes that impeded walking. at another time, their shoes were broad with blunt toes. both men and women wore much jewelry and ornamentation. but, despite the fancy dress, the overall mood was a macabre preoccupation with mortality, despair, and a lack of confidence in the future. cannon and mercenaries had reduced the military significance of knighthood, so its chivalric code deteriorated into surface politeness, ostentation, and extravagance. 	master and servants ceased to eat together in the same hall, except for great occasions, on feast days, and for plays. the lord, and his lady, family, and guests took their meals in a great chamber, usually up beneath the roof next to the upper floor of the great hall. the chimney-pieces and windows were often richly decorated with paneled stonework, tracery and carving. there was often a bay or oriel window with still expensive glass. tapestries, damask, and tablecloths covered the tables. the standard number of meals was three: breakfast, dinner, and supper. there was much formality and ceremonial ritual, more elaborate than before, during dinners at manorial households, including processions bringing and serving courses, and bowing, kneeling, and curtseying. there were many courses of a variety of meats, fish, stews, and soups, with a variety of spices and elaborately cooked. barons, knights, and their ladies sat to the right of the lord above the salt and were served by the lord's sewer [served the food] and carver and gentlemen waiters; their social inferiors such as "gentlemen of worship" sat below the salt and were served by another sewer and yeomen. the lord's cupbearer looked after the lord alone. a knights� table was waited on by yeomen. the gentlemen officers, gentlemen servants and yeomen officers were waited on by their own servants. the amount of food dished out to each person varied according to his rank. the almoner said grace and distributed the leftovers to the poor gathered at the gate. the superior people's hands were washed by their inferiors. lastly, the trestle tables were removed while sweet wine and spices were consumed standing. then the musicians were called into the hall and dancing began. the lord usually slept in a great bed in this room. 	the diet of an ordinary family such as that of a small shopholder or yeoman farmer included beef, mutton, pork, a variety of fish, both fresh and salted, venison, nuts, peas, oatmeal, honey, grapes, apples, pears, and fresh vegetables. cattle and sheep were driven from wales to english markets. this droving lasted for five centuries. 	many types of people besides the nobility and knights now had property and thus were considered gentry: female lines of the nobility, merchants and their sons, attorneys, auditors, squires, and peasant-yeomen. the burgess grew rich as the knight dropped lower. the great merchants lived in mansions which could occupy whole blocks. in towns these mansions were entered through a gate through a row of shops on the street.typically, there would be an oak-paneled great hall, with adjoining kitchen, pantry, and buttery on one end and a great parlor to receive guests, bedrooms, wardrobes, servants' rooms, and a chapel on the other end or on a second floor. a lesser dwelling would have these rooms on three floors over a shop on the first floor. an average londoner would have a shop, a storeroom, a hall, a kitchen, and a buttery on the first floor, and three bedrooms on the second floor. artisans and shopkeepers of more modest means lived in rows of dwellings, each with a shop and small storage room on the first floor, and a combination parlor-bedroom on the second floor. the humblest residents crowded their shop and family into one by foot room for rent of a few shillings a year. all except the last would also have a small garden. the best gardens had a fruit tree, herbs, flowers, a well, and a latrine area. there were common and public privies for those without their own. kitchen slops and casual refuse continued to be thrown into the street. floors of stone or planks were strewn with rushes. there was some tile flooring. most dwellings had glass windows. candles were used for lighting at night. torches and oil-burning lanterns were portable lights. furnishings were still sparse. men sat on benches or joint stools and women sat on cushions on the floor. hall and parlor had a table and benches and perhaps one chair. bedrooms had beds that were surrounded by heavy draperies to keep out cold drafts. the beds had pillows, blankets, and sheets. clothes were stored in a chest, sometimes with sweet-smelling herbs such as lavender, rosemary, and southernwood. better homes had wall hanging and cupboards displaying plate. laundresses washed clothes in the streams, rivers, and public conduits. country peasants still lived in wood, straw, and mud huts with earth floors and a smoky hearth in the center or a kitchen area under the eaves of the hut. 	in , bricks began to be manufactured in the nation and so there was more use of bricks in buildings. chimneys were introduced into manor houses where stone had been too expensive. this was necessary if a second floor was added, so the smoke would not damage the floor above it and would eventually go out of the house. 	nobles and their retinue moved from manor to manor, as they had for centuries, to keep watch upon their lands and to consume the produce thereof; it was easier to bring the household to the estate than to transport the yield of the estate to the household. also, at regular intervals sewage had to be removed from the cellar pits. often a footman walked or ran on foot next to his master or mistress when they rode out on horseback or in a carriage. he was there primarily for prestige. 	jousting tournaments were held for entertainment purposes only and were followed by banquets of several courses of food served on dishes of gold, silver, pewter, or wood on a linen cloth covering the table. hands were washed before and after the meal. people washed their faces every morning after getting up. teeth were cleaned with powders. fragrant leaves were chewed for bad breath. garlic was used for indigestion and other ailments. feet were rubbed with salt and vinegar to remove calluses. good manners included not slumping against a post, fidgeting, sticking one's finger into one's nose, putting one's hands into one's hose to scratch the privy parts, spitting over the table or too far, licking one's plate, picking one's teeth, breathing stinking breath into the face of the lord, blowing on one's food, stuffing masses of bread into one's mouth, scratching one's head, loosening one's girdle to belch, and probing one's teeth with a knife. 	fishing and hunting were reserved for the nobility rather than just the king. 	as many lords became less wealthy because of the cost of war, some peasants, villein and free, became prosperous, especially those who also worked at a craft, e.g. butchers, bakers, smiths, shoemakers, tailors, carpenters, and cloth workers. 	an agricultural slump caused poorer soils to fall back into waste. the better soils were leased by peasants, who, with their families, were in a better position to farm it than a great lord, who found it hard to hire laborers at a reasonable cost. further, peasants' sheep, hens, pigs, ducks, goats, cattle, bees, and crop made them almost self-sufficient in foodstuffs. they lived in a huddle of cottages, pastured their animals on common land, and used common meadows for haymaking. they subsisted mainly on boiled bacon, an occasional chicken, worts and beans grown in the cottage garden, and cereals. they wore fine wool cloth in all their apparel. brimless hats were replacing hoods. they had an abundance of bed coverings in their houses. and they had more free time. village entertainment included traveling jesters, acrobats, musicians, and bear-baiters. playing games and gambling were popular pastimes. 	most villeins were now being called "customary tenants" or "copy- holders" of land because they held their acres by a copy of the court-roll of the manor, which listed the number of teams, the fines, the reliefs, and the services due to the lord for each landholder. the chancery court interpreted many of these documents to include rights of inheritance. the common law courts followed the lead of the chancery and held that copyhold land could be inherited as was land at common law. evictions by lords decreased. 	the difference between villein and freeman lessened but landlords usually still had profits of villein bondage, such as heriot, merchet, and chevage. 	social mobility was most possible in the towns, where distinctions were usually only of wealth. so a poor apprentice could aspire to become a master, a member of the livery of his company, a member of the council, an alderman, a mayor, and then an esquire for life. the distance between baron and a country knight and between a yeoman and knight was wider. manor custom was strong. but a yeoman could give his sons a chance to become gentlemen by entering them in a trade in a town, sending them to university, or to war. every freeman was to some extent a soldier, and to some extent a lawyer, serving in the county or borough courts. a burgess, with his workshop or warehouse, was trained in warlike exercises, and he could keep his own accounts, and make his own will and other legal documents, with the aid of a scrivener or a chaplain, who could supply an outline of form. but law was growing as a profession. old-established london families began to choose the law as a profession for their sons, in preference to an apprenticeship in trade. many borough burgesses in parliament were attorneys. 	a class of laborers was arising who depended entirely on the wages of industry for their subsistence. the cloth workers in rural areas were isolated and weak and often at the mercy of middlemen for employment and the amount of their wages. when rural laborers went to towns to seek employment in the new industries, they would work at first for any rate. this deepened the cleavage of the classes in the towns. the artificers in the town and the cottagers and laborers in the country lived from hand to mouth, on the edge of survival, but better off than the old, the diseased, the widows, and the orphans. however, the s were the most prosperous time for laborers considering their wages and the prices of food. meat and poultry were plentiful and grain prices low. 	in london, shopkeepers appealed to passersby to buy their goods, sometimes even seizing people by the sleeve. the drapers had several roomy shops containing shelves piled with cloths of all colors and grades, tapestries, pillows, blankets, bed draperies, and �bankers and dorsers� to soften hard wooden benches. a rear storeroom held more cloth for import or export. many shops of skinners were on fur row. there were shops of leather sellers, hosiers, gold and silver cups, and silks. at the stocks market were fishmongers, butchers, and poulterers. london grocers imported spices, canvas, ropery, potions, unguents, soap, confections, garlic, cabbages, onions, apples, oranges, almonds, figs, dates, raisins, dyestuffs, woad, madder (plant for medicine and dye), scarlet grains, saffron, iron, and a primitive steel. they were retailers as well as wholesalers and had shops selling honey, licorice, salt, vinegar, rice, sugar loaves, syrups, spices, garden seeds, dyes, alum, soap, brimstone, paper, varnish, canvas, rope, musk, incense, treacle of genoa, and mercury. the grocers did some money lending, usually at % interest. the guilds did not restrict themselves to dealing in the goods for which they had a right of inspection, and so many dealt in wine that it was a medium of exchange. there was no sharp distinction between retail and wholesale trading. 	london grocers sold herbs for medicinal as well as eating purposes. breadcarts sold penny wheat loaves. foreigners set up stalls on certain days of the week to sell meat, canvas, linen, cloth, ironmongery, and lead. there were great houses, churches, monasteries, inns, guildhalls, warehouses, and the king's beam for weighing wool to be exported. in , the guildhall of london was built through contributions, proceeds of fines, and lastly, to finish it, special fees imposed on apprenticeships, deeds, wills, and letters-patent. the mercers and goldsmiths were in the prosperous part of town. the goldsmiths' shops sold gold and silver plate, jewels, rings, water pitchers, drinking goblets, basins to hold water for the hands, and covered saltcellars. the grain market was on cornhill. halfway up the street, there was a supply of water which had been brought up in pipes. on the top of the hill was a cage where riotous folk had been incarcerated by the night watch and the stocks and pillory, where fraudulent schemers were exposed to ridicule. no work was to be done on sundays, but some did work surreptitiously. the barbers kept their shops open in defiance of the church. outside the london city walls were tenements, the smithfield cattle market, westminster hall, green fields of crops, and some marsh land. 	on the thames river to london were large ships with cargoes; small boats rowed by tough boatmen offering passage for a penny; small private barges of great men with carved wood, gay banners, and oarsmen with velvet gowns; the banks covered with masts and tackle; the nineteen arch london bridge supporting a street of shops and houses and a drawbridge in the middle; quays; warehouses, and great cranes lifting bales from ship to wharf. merchant guilds which imported or exported each had their own wharves and warehouses. downstream, pirates hung on gallows at the low-water mark to remain until three tides had overflowed their bodies. a climate change of about / degree celcius lower caused the thames to regularly freeze over in winter. 	the large scale of london trade promoted the specialization of the manufacturer versus the merchant versus the shipper. merchants had enough wealth to make loans to the government or for new commercial enterprises. local reputation on general, depended upon a combination of wealth, trustworthiness of character, and public spirit; it rose and fell with business success. some london merchants were knighted by the king. many bought country estates thereby turning themselves into gentry. 	the king granted london all common soils, improvements, wastes, streets, and ways in london and in the adjacent waters of the thames river and all the profits and rents to be derived therefrom. later the king granted london the liberty to purchase lands and tenements worth up to , s. yearly. with this power, london had obtained all the essential features of a corporation: a seal, the right to make by-laws, the power to purchase lands and hold them "to them and their successors" (not simply their heirs, which is an individual and hereditary succession only), the power to sue and be sued in its own name, and the perpetual succession implied in the power of filling up vacancies by election. since these powers were not granted by charters, london is a corporation by prescription. in , the liverymen obtained the right with the council to elect the mayor, the sheriff, and certain other corporate officers. 	many boroughs sought and obtained formal incorporation with the same essential features as london. this tied up the loose language of their early charters of liberties. often, a borough would have its own resident justice of the peace. each incorporation involved a review by a justice of the peace to make sure the charter of incorporation rule didn't conflict with the law of the nation. a borough typically had a mayor accompanied by his personal sword- bearer and serjeants-at-mace bearing the borough regalia, bailiffs, a sheriff, and chamberlains or a steward for financial assistance. at many boroughs, aldermen, assisted by their constables, kept the peace in their separate wards. there might be coroners, a recorder, and a town clerk, with a host of lesser officials including beadles [a messenger of a court], aletasters, sealers, searchers [inspectors], weighers and keepers of the market, ferrymen and porters, clock-keepers and criers [cries out public announcements through the streets], paviors [maintained the roads], scavengers and other street cleaners, gatekeepers and watchmen of several ranks and kinds. a wealthy borough would have a chaplain and two or three minstrels. the mayor replaced the bailiffs as the chief magistracy. 	in all towns, the wealthiest and most influential guilds were the merchant traders of mercers, drapers, grocers, and goldsmiths. from their ranks came most of the mayors, and many began to intermarry with the country knights and gentry. next came the shopholders of skinners, tailors, ironmongers, and corvisors [shoemakers]. thirdly came the humbler artisans, the sellers of victuals, small shopkeepers, apprentices, and journeymen on the rise. lastly came unskilled laborers, who lived in crowded tenements and hired themselves out. the first three groups were the free men who voted, paid scot and bore lot, and belonged to guilds. scot was a ratable proportion in the payments levied from the town for local or national purposes. merchant guilds in some towns merged their existence into the town corporation, and their guild halls became the common halls of the town, and their property became town property. 	in london, the cutlers' company was chartered in , the haberdashers' company in , the grocers' company in , the drapers' and cordwainers' companies in , the vintners' and brewers' companies in , the leathersellers' company in , the girdlers' company in , the armourers' and brassiers' companies in , the barbers' company in , the tallow chandlers' company in , the ironmongers' company in , the dyers' company in , the musicians' company in , the carpenters' company in , the cooks' company in , and the waxchandlers' company in . the fishmongers, which had been chartered in , were incorporated in , the cordwainers in , and the pewterers in . 	there were craft guilds in the towns, at least in london. in fact, every london trade of twenty men had its own guild. the guild secured good work for its members and the members maintained the reputation of the work standards of the guild. bad work was punished and night work prohibited as leading to bad work. the guild exercised moral control over its members and provided sickness and death benefits for them. there was much overlapping in the two forms of association: the craft guild and the religious fraternity. apprentices were taken in to assure an adequate supply of competent workers for the future. the standard indenture of an apprentice bound him to live in his master's house; serve him diligently; obey reasonable commands; keep his master's secrets; protect him from injury; abstain from dice, cards and haunting of taverns; not marry; commit no fornication, and not absent himself without permission. in return the master undertook to provide the boy or girl with bed, board, and lodging and to instruct him or her in the trade, craft, or mystery. when these apprentices had enough training they were made journeymen with a higher rate of pay. journeymen traveled to see the work of their craft in other towns. those journeymen rising to master had the highest pay rate. 	occupations free of guild restrictions included horse dealers, marbelers, bookbinders, jewelers, organ makers, feathermongers, pie makers, basket makers, mirrorers, quilters, and parchment makers. non-citizens of london could not be prevented from selling leather, metalwares, hay, meat, fruit, vegetables, butter, cheese, poultry, and fish from their boats, though they had to sell in the morning and sell all their goods before the market closed. 	in the towns, many married women had independent businesses and wives also played an active part in the businesses of their husbands. wives of well-to-do london merchants embroidered, sewed jewelry onto clothes, and made silk garments. widows often continued in their husband's businesses, such as managing a large import-export trade, tailoring, brewing, and metal shop. socially lower women often ran their own breweries, bakeries, and taverns. it was possible for wives to be free burgesses in their own right in some towns. 	some ladies were patrons of writers. some women were active in prison reform in matters of reviews to insure that no man was in gaol without due cause, overcharges for bed and board, brutality, and regulation of prisoners being placed in irons. many men and women left money in their wills for food and clothing for prisoners, especially debtors. wills often left one-third of the wealth to the church, the poor, prisoners, infirmaries, young girls' education; road, wall, and bridge repair; water supply, markets and almshouses. some infirmaries were for the insane, who were generally thought to be possessed by the devil or demons. their treatment was usually by scourging the demons out of their body by flogging. if this didn't work, torture could be used to drive the demons from the body. 	the guilds were being replaced by associations for the investment of capital. in associations, journeymen were losing their chance of rising to be a master. competition among associations was starting to supplant custom as the mainspring of trade. 	the cloth exporters, who were mostly mercers, were unregulated and banded together for mutual support and protection under the name of merchant adventurers of london. the merchant adventurers was chartered in . it was the first and a prototype of regulated companies. that is the company regulated the trade. each merchant could ship on his own a certain number of cloths each year, the number depending on the length of his membership in the company. he could sell them himself or by his factor at the place where the company had privileges of market. strict rules governed the conduct of each member. he was to make sales only at certain hours on specified days. all disagreements were to be settled by the company's governor, or his deputy in residence, and those officials dealt with such disputes as arose between members of the company and continental officials and buyers. a share in the ownership of one of their vessels was a common form of investment by prosperous merchants. by , the merchant adventurers were dealing in linen cloths, buckrams [a stiffened, coarse cloth], fustians [coarse cloth made of cotton threads going in one direction and linen threads the other], satins, jewels, fine woolen and linen wares, threads, potions, wood, oil, wine, salt, copper, and iron. they began to replace trade by alien traders. the history of the "merchant adventurers" was associated with the growth of the mercantile system for more than years. it eventually replaced the staples system. 	paved roads in towns were usually gravel and sometimes cobble. they were frequently muddy because of rain and spillage of water being carried. iron-shod wheels and overloaded carts made them very uneven. london was the first town with paviors. they cleaned and repaired the streets, filling up potholes with wood chips and compacting them with hand rams. the paviors were organized as a city company in . about , towns besides london began appointing salaried road paviors to repair roads and collect their expenses from the householders because the policy of placing the burden on individual householders didn't work well. london streets were lighted at night by public lanterns, under the direction of the mayor. the residents were to light these candle lanterns in winter from dusk to the p.m. curfew. there were fire-engines composed of a circular cistern with a pump and six feet of inflexible hose on wheels pulled by two men on one end and pushed by two men on the other end. in the city walls were rebuilt with a weekly tax of d. per head. 	in schools, there was a renaissance of learning from original sources of knowledge written in greek and rebirth of the greek pursuit of the truth and scientific spirit of inquiry. there was a striking increase in the number of schools founded by wealthy merchants or town guilds. every cathedral, monastery, and college had a grammar school. merchants tended to send their sons to private boarding schools, instead of having them tutored at home as did the nobility. well-to-do parents still sent sons to live in the house of some noble to serve them as pages in return for being educated with the noble's son by the household priest. they often wore their master's coat of arms and became their squires as part of their knightly education. sometimes girls were sent to live in another house to receive education from a tutor there under the supervision of the lady of the house. every man, free or villein, could send his sons and daughters to school. in every village, there were some who could read and write. 	in , lincoln's inn required barristers normally resident in london and the county of middlesex to remain in residence and pay commons during the periods between sessions of court and during vacations, so that the formal education of students would be continuous. in , a similar requirement was extended to all members. 	the book "sir gawain and the green knight" was written about an incident in the court of king arthur and queen guenevere in which a green knight challenges arthur's knights to live up to their reputation for valor and awesome deeds. the knight gawain answers the challenge, but is shown that he could be false and cowardly when death seemed to be imminent. thereafter, he wears a green girdle around his waist to remind him not to be proud. 	other literature read included "london lickpenny", a satire on london and its expensive services and products, "fall of princes" by john lydgate, social history by thomas hoccleve, "the cuckoo and the nightengale", and "the flower and leaf" on morality as secular common sense. king james i of scotland wrote a book about how he fell in love. chaucer, cicero, ovid, and aesops's fables were widely read. malory's new version of the arthurian stories was popular. margery kempe wrote the first true autobiography. she was a woman who had a normal married life with children, but one day had visions and voices which led her to leave her husband to take up a life of wandering and praying in holy possession. there were religious folk ballads such as "the cherry tree carol", about the command of jesus from mary's womb for a cherry tree to bend down so that mary could have some cherries from it. the common people developed ballads, e.g. about their love of the forest, their wish to hunt, and their hatred of the forest laws. 	about % of londoners could read english. books were bought in london in such quantities by that the craft organizations of text-letter writers, illuminators, bookbinders, and book sellers was sanctioned by ordinance. "unto the honorable lords, and wise, the mayor and aldermen of the city of london, pray very humbly all the good folks, freemen of the said city, of the trades of writers of text-letter, limners [illuminator of books], and other folks of london who are wont to bind and to sell books, that it may please your great sagenesses to grant unto them that they may elect yearly two reputable men, the one a limner, the other a text- writer, to be wardens of the said trades, and that the names of the wardens so elected may be presented each year before the mayor for the time being, and they be there sworn well and diligently to oversee that good rule and governance is had and exercised by all folks of the same trades in all works unto the said trades pertaining, to the praise and good fame of the loyal good men of the said trades and to the shame and blame of the bad and disloyal men of the same. and that the same wardens may call together all the men of the said trades honorably and peacefully when need shall be, as well for the good rule and governance of the said city as of the trades aforesaid. and that the same wardens, in performing their due office, may present from time to time all the defaults of the said bad and disloyal men to the chamberlain at the guildhall for the time being, to the end that the same may there, according to the wise and prudent discretion of the governors of the said city, be corrected, punished, and duly redressed. and that all who are rebellious against the said wardens as to the survey and good rule of the same trades may be punished according to the general ordinance made as to rebellious persons in trades of the said city [fines and imprisonment]. and that it may please you to command that this petition, by your sagenesses granted, may be entered of record for time to come, for the love of god and as a work of charity." 	gutenberg's printing press, which used movable type of small blocks with letters on them, was brought to london in by a mercer: william caxton. it supplemented the text-writer and monastic copyist. it was a wood and iron frame with a mounted platform on which were placed small metal frames into which words with small letters of lead had been set up. each line of text had to be carried from the type case to the press. beside the press were pots filled with ink and inking balls. when enough lines of type to make a page had been assembled on the press, the balls would be dipped in ink and drawn over the type. then a sheet of paper would be placed on the form and a lever pulled to press the paper against the type. linen usually replaced the more expensive parchment for the book pages. 	the printing press made books more accessible to all literate people. caxton printed major english texts and some translations from french and latin. he commended different books to various kinds of readers, for instance, for gentlemen who understand gentleness and science, or for ladies and gentlewomen, or to all good folk. there were many cook books in use. there were convex eyeglasses for reading and concave ones for distance to correct near-sightedness. the first public library in london was established from a bequest in a will in . 	many carols were sung at the christian festival of christmas. ballads were sung on many features of social life of this age of disorder, hatred of sheriffs, but faith in the king. the legend of robin hood was popular, as were town miracle plays on leading incidents of the bible and morality plays. vintners portrayed the miracle of cana where water was turned into wine and goldsmiths ornately dressed the three kings coming from the east. in york, the building of noah's ark was performed by the shipwrights and the flood performed by the fishery and mariners. short pantomimes and disguising, forerunners of costume parties, were good recreation. games of cards became popular as soon as cards were introduced. the king, queen, and jack were dressed in contemporary clothes. men bowled, kicked footballs, and played tennis. in london, christmas was celebrated with masques and mummings. there was a great tree in the main market place and evergreen decorations in churches, houses, and streets. there were also games, dances, street bonfires in front of building doors, and general relaxation of social controls. sometimes there was drunken licentiousness and revelry, with peasants gathering together to make demands of lords for the best of his goods. may day was celebrated with crowns and garlands of spring flowers. the village may day pageant was often presided over by robin hood and maid marion. 	people turned to mysticism to escape from the everyday violent world. they read works of mystics, such as "scale of perfection" and "cloud of unknowing", the latter describing how one may better know god. they believed in magic and sorcery, but had no religious enthusiasm because the church was engendering more disrespect. monks and nuns had long ago resigned spiritual leadership to the friars; now the friars too lost much of their good reputation. the monks became used to life with many servants such as cooks, butlers, bakers, brewers, barbers, laundresses, tailors, carpenters, and farm hands. the austerity of their diet had vanished. the schedule of divine services was no longer followed by many and the fostering of learning was abandoned. into monasteries drifted the lazy and miserable. nunneries had become aristocratic boarding houses. the practice of taking sanctuary was abused; criminals and debtors sought it and were allowed to overstay the -day restriction and to leave at night to commit robberies. there were numerous chaplains, who were ordained because they received pay from private persons for saying masses for the dead; they had much leisure time for mischief because they had to forego wife and family. church courts became corrupt, but jealously guarded their jurisdiction from temporal court encroachment. peter's pence was no longer paid by the people, so the burden of papal exaction fell wholly on the clergy. but the church was rich and powerful, paying almost a third of the whole taxation of the nation and forming a majority in the house of lords. many families had kinsmen in the clergy. even the lowest cleric or clerk could read and write in latin. 	people relied on saint's days as reference points in the year, because they did not know dates of the year. but townspeople knew the hour and minute of each day, because clocks driven by a descending weight on a cord were in all towns and in the halls of the well-to-do. this increased the sense of punctuality and lifted standards of efficiency. these weight-driven clocks replaced water clocks, which had a problem of water freezing, and sandclocks, which could measure only small time intervals. 	a linguistic unity and national pride was developing. london english became the norm and predominated over rural dialects. important news was announced and spread by word of mouth in market squares and sometimes in churches. as usual, traders provided one of the best sources of news; they maintained an informal network of speedy messengers and accurate reports because political changes so affected their ventures. news also came from peddlers, who visited villages and farms to sell items that could not be bought in the local village. these often included scissors, eyeglasses, colored handkerchiefs, calendars, fancy leather goods, watches, and clocks. peddling was fairly profitable because of the lack of competition. but peddlers were often viewed as tramps and suspected of engaging in robbery as well as peddling. 	a royal post service was established by relays of mounted messengers. the first route was between london and the scottish border, where there were frequent battles for land between the scotch and english. 	the inland roads from town to town were still rough and without signs. a horseman could make up to miles a day. common carriers took passengers and parcels from various towns to london on scheduled journeys. now the common yeoman could order goods from the london market, communicate readily with friends in london, and receive news of the world frequently. trade with london was so great and the common carrier so efficient in transporting goods that the medieval fair began to decline. first the grocers and then the mercers refused to allow their members to sell goods at fairs. there was much highway robbery. most goods were still transported by boats along the coasts, with trading at the ports. 	embroidery was exported. imported were timber, pitch, tar, potash [for cloth dying], furs, silk, satin, gold cloth, damask cloth, furred gowns, gems, fruit, spices, and sugar. imports were restricted by national policy for the purpose of protecting native industries. 	english single-masted ships began to be replaced by two or three masted ships with high pointed bows to resist waves and sails enabling the ship to sail closer to the wind. tuns was the usual carrying capacity. the increase in trade made piracy, even by merchants, profitable and frequent until merchant vessels began sailing in groups for their mutual protection. the astrolabe, which took altitude of sun and stars, was used for navigation. 	consuls were appointed to assist english traders abroad. 	henry iv appointed the first admiral of the entire nation and resolved to create a national fleet of warships instead of using merchant ships. in , the war navy had ships. in , portsmouth was fortified as a naval base. henry v issued the orders that formed the basic law of english admiralty and appointed surgeons to the navy and army. 	for defense of the nation, especially the safeguard of the seas, parliament allotted the king for life, s. for every tun of wine imported and an additional s. for every tun of sweet wine imported. >from about , tunnage on wine [tax per tun] and poundage [tax per pound] on merchandise were duties on goods of merchants which were regularly granted by parliament to the king for life for upkeep of the navy. before this time, such duties had been sporadic and temporary. 	the most common ailments were eye problems, aching teeth, festering ears, joint swelling and sudden paralysis of the bowels. epidemics broke out occasionally in the towns in the summers. the plague swept london in and the nation in , , and . leprosy disappeared. 	infirmaries were supported by a tax of the king levied on nearby counties. the walls, ditches, gutters, sewers, and bridges on waterways and the coast were kept in repair by laborers hired by commissions appointed by the chancellor. those who benefited from these waterways were taxed for the repairs in proportion to their use thereof. 	alabaster was sculptured into tombs surmounted with a recumbent effigy of the deceased, and effigies of mourners on the sides. few townsmen choose to face death alone and planned memorial masses to be sung to lift their souls beyond purgatory. chantries were built by wealthy men for this purpose. chemical experimentation was still thought to be akin to sorcery, so was forbidden by king henry iv in . gold was minted into coins: noble, half noble, and farthing. 	king henry iv lost power to the commons and the lords because he needed revenue from taxes and as a usurper king, he did not carry the natural authority of a king. the commons acquired the right to elect its own speaker. the lords who helped the usurpation felt they should share the natural power of the kingship. the council became the instrument of the lords. also, the commons gained power compared to the nobility because many nobles had died in war. the consent of the commons to legislation became so usual that the justices declared that it was necessary. the commons began to see itself as representative of the entire commons of the realm instead of just their own counties. its members had the freedom to consider and debate every matter of public interest, foreign or domestic, except for church matters. the commons, the poorest of the three estates, established an exclusive right to originate all money grants to the king in . the speaker of the commons announced its money grant to the king only on the last day of the parliamentary session, after the answers to its petitions had been declared, and after the lords had agreed to the money grant. it tied its grants by rule rather than just practice to certain appropriations. for instance, tunnage and poundage were appropriated for naval defenses. wool customs went to the maintenance of calais, a port on the continent, and defense of the nation. it also put the petitions in statutory form, called "bills", to be enacted after consideration and amendment by all without alteration. each house had a right to deliberate in privacy. in the commons, members spoke in the order in which they stood up bareheaded. any member of parliament or either house or the king could initiate a bill. both houses had the power to amend or reject a bill. there were conferences between select committees of both houses to settle their differences. the commons required the appointment of auditors to audit the king's accounts to ensure past grants had been spent according to their purpose. it forced the king's council appointees to be approved by parliament and to be paid salaries. about , kings' councilors were required to take an oath not to accept gifts of land, not to maintain private suits, not to reveal secrets, and not to neglect the king�s business. a quorum was fixed and rules made for removal from the council. for the next fifty years, the council was responsible both to the king and to parliament. this was the first encroachment on the king's right to summon, prorogue, or dismiss a parliament at his pleasure, determine an agenda of parliament, veto or amend its bills, exercise his discretion as to which lords he summoned to parliament, and create new peers by letters patent [official public letters]. parliament was affected by the factionalism of the times. the speaker of the commons was often an officer of some great lord. in , the retainers of the barons in parliament were forbidden to bear arms, so they appeared with clubs on their shoulders. when the clubs were forbidden, they came with stones concealed in their clothing. 	kings created dukes and marquesses to be peers. a duke was given creation money or allowance of pounds a year. a marquess was given pounds. these new positions could not descend to an heiress, unlike a barony or earldom. an earl was given pounds, which probably took the place of his one-third from the county. king henry vi gave the title of viscount to several people; it had an allowance of . pounds and was above baron. it allowed them to be peers. there were about peers. in king edward iv's reign, the king's retinue had about knights, squires, yeomen, clerks, grooms, and stablemen. the suitable annual expense of the household of the king was , pounds for his retinue of about people, a duke , pounds for about people, a marquess , pounds for about people, an earl , pounds for about people, a viscount , pounds for about people, a baron pounds for about people, a banneret [a knight made in the field, who had a banner] pounds for about people, a knight bachelor pounds for about people, and a squire pounds for about people. of a squire's pounds, about pounds were spent in food, repairs and furniture , on horses, hay, and carriage , on clothes, alms and oblations , wages , livery of dress , and the rest on hounds and the charges of harvest and hay time. many servants of the household of the country gentleman were poor relations. they might by education and accomplishment rise into the service of a baron who could take him to court, where he could make his fortune. 	barons' households also included steward, chaplains, treasurer, accountants, chamberlain, carvers, servers, cupbearers, pages, and even chancellor. they were given wages and clothing allowances and had meals in the hall at tables according to their degree. 	the authority of the king's privy seal had become a great office of state which transmitted the king's wishes to the chancery and exchequer, rather than the king's personal instrument for sealing documents. now the king used a signet kept by his secretary as his personal seal. edward iv made the household office of secretary, who had custody the king's signet seal, a public office. the secretary was generally a member of the council. edward iv invented the benevolence, a gift wrung from wealthy subjects. 	king edward iv introduced an elaborate spy system, the use of the rack to torture people to give information, and other interferences with justice, all of which the tudor sovereigns later used. torture was used to discover facts, especially about coconspirators, rather than to elicit a confession, as on the continent. it was only used on prisoners held in the tower of london involved in state trials and could only be authorized by the king's closest councilors in virtue of the royal prerogative. the rack stretched the supine body by the wrists and legs with increasing agony at the joints until the limbs were dislocated. some victims were permanently crippled by it; others died on it. most told what they knew, often at the very sight of the rack. torture was forbidden in the common law, which favored an accusatorial system, in which the accuser had to prove guilt, rather than an inquisitional system, in which the accused had to prove innocence. edward iv applied martial law to ordinary cases of high treason by extending the jurisdiction of the politically- appointed high constable of england to these cases, thus depriving the accused of trial by jury. he executed many for treason and never restored their forfeited land to their families, as had been the usual practice. 	king richard iii prohibited the seizure of goods before conviction of felony. he also liberated the unfree villeins on royal estates. 	it was declared under parliamentary authority that there was a preference for the crown to pass to a king's eldest son, and to his male issue after him. formerly, a man could ascend to the throne through his female ancestry as well. - the law - 	the forcible entry statute is expanded to include peaceful entry with forcible holding after the justices arrived and to forcible holding with departure before the justices arrived. penalties are triple damages, fine, and ransom to the king. a forceful possession lasting three years is exempt. 	by common law, a tenant could not take away buildings or fixtures he built on land because it would be wasteful. this applied to agricultural fixtures, but not to other trade fixtures. also at common law, if a person had enjoyed light next to his property for at least years, no one could build up the adjacent land so that the light would be blocked. 	women of age fourteen or over shall have livery of their lands and tenements by inheritance without question or difficulty. 	purposely cutting out another's tongue or putting out another's eyes is a felony, the penalty for which is loss of all property]. 	no one may keep swans unless he has lands and tenements of the estate of freehold to a yearly value of s., because swans of the king, lords, knights, and esquires have been stolen by yeomen and husbandmen. 	the wage ceiling for servants is: bailiff of agriculture s. d. per year, and clothing up to s., with meat and drink; chief peasant, a carter, chief shepherd s. and clothing up to s., with meat and drink; common servant of agriculture s., and clothing up to s. d.; woman servant s., and clothing up to s., with meat and drink; infant under fourteen years s., and clothing up to s., with meat and drink. such as deserve less or where there is a custom of less, that lesser amount shall be given. 	for laborers at harvest time: mower d. with meat and drink or d. without; reaper or carter: d. with or d. without; woman laborer and other laborers: d with and d. without. 	the ceiling wage rate for craftsmen per day is: free mason or master carpenter d. with meat and drink or d. without; master tiler or slater, rough mason, and mesne [intermediary] carpenter and other artificiers in building d. with meat and drink or d. without; every other laborer d. with meat and drink or d. without. in winter the respective wages were less: mason category: d. with or d. without; master tiler category: d. with or d. without; others: d. with or d. without meat and drink. 	any servant of agriculture who is serving a term with a master and covenants to serve another man at the end of this term and that other man shall notify the master by the middle of his term so he can get a replacement worker. otherwise, the servant shall continue to serve the first master. 	no man or woman may put their son or daughter to serve as an apprentice in a craft within any borough, but may send the child to school, unless he or she has land or rent to the value of s. per year.this was because of scarcity of laborers and other servants of agriculture. 	no laborer may be hired by the week. 	masons may no longer congregate yearly, because it has led to violation of the statute of laborers. 	no games may be played by laborers because they lead to [gambling and] murders and robberies. 	apparel worn must be appropriate to one's status to preserve the industry of agriculture. the following list of classes shows the lowest class, which could wear certain apparel: . lords - gold cloth, gold corses, sable fur, purple silk . knights - velvet, branched satin, ermine fur . esquires and gentlemen with possessions to the value of s. per year, daughters of a person who has possessions to the value of , s. a year damask, silk, kerchiefs up to s. in value. . esquires and gentlemen with possessions to the yearly value of s. pounds - fur of martron or letuse, gold or silver girdles, silk corse not made in the nation, kerchief up to s. d in value . men with possessions of the yearly value of s. excluding the above three classes - fustian, bustian, scarlet cloth in grain . men with possessions under the yearly value of s. excluding the first three classes - black or white lamb fur, stuffing of wool, cotton, or cadas. . yeomen - cloth up to the value of s., hose up to the value of s., a girdle with silver, kerchief up to d. . servants of agriculture, laborer, servant, country craftsman - none of the above clothes 	gowns and jackets must cover the entire trunk of the body, including the private parts. shoes may not have pikes over two inches. 	every town shall have at its cost a common balance with weights according to the standard of the exchequer. all citizens may weigh goods for free. all cloth to be sold shall be sealed according to this measure. 	there is a standard bushel of grain throughout the nation. 	there are standard measures for plain tile, roof tile, and gutter tile throughout the nation. 	no gold or silver may be taken out of the nation. 	the price of silver is fixed at s. for a pound, to increase the value of silver coinage, which has become scarce due to its higher value when in plate or masse. 	a designee of the king will inspect and seal cloth with lead to prevent deceit. cloth may not be tacked together before inspection. no cloth may be sold until sealed. 	heads of arrows shall be hardened at the points with steel and marked with the mark of the arrowsmith who made it, so they are not faulty. 	shoemakers and cordwainers may tan their leather, but all leather must be inspected and marked by a town official before it is sold. 	to prevent deceitful tanning, cordwainers shall not tan leather. tanners who make a notorious default in leather which is found by a cordwainer shall make a forfeiture. 	defective embroidery for sale shall be forfeited. 	no fishing net may be fastened or tacked to posts, boats, or anchors, but may be used by hand, so that fish are preserved and vessels may pass. 	no one may import any articles which could be made in the nation, including silks, bows, woolen cloths, iron and hardware goods, harness and saddlery, except printed books. 	the following merchandise shall not be brought into the nation already wrought: woolen cloth or caps, silk laces, ribbons, fringes, and embroidery, gold laces, saddles, stirrups, harnesses, spurs, bridles, gridirons, locks, hammers, fire tongs, dripping pans, dice, tennis balls, points, purses, gloves, girdles, harness for girdles of iron steel or of tin, any thing wrought of any treated leather, towed furs, shoes, galoshes, corks, knives, daggers, woodknives, thick blunt needles, sheers for tailors, scissors, razors, sheaths, playing cards, pins, pattens [wooden shoes on iron supports worn in wet weather], pack needles, painted ware, forcers, caskets, rings of copper or of gilt sheet metal, chaffing dishes, hanging candlesticks, chaffing balls, mass bells, rings for curtains, ladles, skimmers, counterfeit felt hat moulds, water pitchers with wide spouts, hats, brushes, cards for wool, white iron wire, upon pain of their forfeiture. one half this forfeiture goes to the king and the other half to the person seizing the wares. 	no sheep may be exported, because being shorn elsewhere would deprive the king of customs. 	no wheat, rye, or barley may be imported unless the prices are such that national agriculture is not hurt. 	clothmakers must pay their laborers, such as carders and spinsters, in current coin and not in pins and girdles and the like. 	the term "freemen" in the magna carta includes women. 	the election of a knight from a county to go to parliament shall be proclaimed by the sheriff in the full county so all may attend and none shall be commanded to do something else at that time. election is to be by majority of the votes and its results will be sealed and sent to parliament. 	electors and electees to parliament must reside in the county or be citizens or burgesses of a borough. to be an elector to parliament, a knight must reside in the county and have a freehold of land or tenements there of the value of at least s. per year, because participation in elections of too many people of little substance or worth had led to homicides, assaults, and feuds. (these "yeomen" were about one sixth of the population. most former electors and every leaseholder and every copyholder were now excluded. those elected for parliament were still gentry chosen by substantial freeholders.) 	london ordinances forbade placing rubbish or dung in the thames river or any town ditch or casting water or anything else out of a window. the roads were maintained with tolls on carts and horses bringing victuals or grains into the city and on merchandise unloaded from ships at the port. no carter shall drive his cart more quickly when it is unloaded than when it is loaded. no pie bakers shall sell beef pies as venison pies, or make any meat pie with entrails. to assist the poor, bread and ale shall be sold by the farthing. 	desertion by a soldier is penalized by forfeiture of all land and property. 	the common law held that a bailee is entitled to possession against all persons except the owner of the bailed property. 	former justice sir thomas littleton wrote a legal textbook describing tenancies in dower; the tenures of socage, knight's service, serjeanty, and burgage; estates in fee simple, fee tail, and fee conditional; inheritance and alienation of land. for instance, "also, if feoffment be made upon such condition, that if the feoffor pay to the feofee at a certain day, etc., s. forty pounds of money, that then the feoffor may reenter, etc., in this case the feoffee is called tenant in mortgage, ... and if he doth not pay, then the land which he puts in pledge upon condition for the payment of the money is gone from him for ever, and so dead as to the tenant, etc." 	joint tenants are distinguished from tenants in common by littleton thus: "joint-tenants are, as if a man be seised of certain lands or tenements, etc., and thereof enfeoffeth two, or three, or four, or more, to have and to hold to them (and to their heirs, or letteth to them) for term of their lives, or for term of another's life; by force of which feoffment or lease they are seised, such are joint-tenants. ... and it is to be understood, that the nature of joint-tenancy is, that he that surviveth shall have solely the entire tenancy, according to such estate as he hath, ..." "tenants in common are they that have lands or tenements in fee-simple, fee-tail, or for term of life, etc., the which have such lands and tenements by several title, and not by joint title, and neither of them knoweth thereof his severalty, but they ought by the law to occupy such lands or tenements in common pro indiviso [undivided], to take the profits in common. ...as if a man enfeoff two joint-tenants in fee, and the one of them alien that which to him belongeth to another in fee, now the other joint-tenant and the alienee are tenants in common, because they are in such tenements by several titles, ..." 	there are legal maxims and customs of ancient origin which have become well established and known though not written down as statutes. some delineated by christopher st. germain in "doctor and student" in are: . the spouse of a deceased person takes all personal and real chattels of the deceased. . for inheritance of land, if there are no descendant children, the brothers and sisters take alike, and if there are none, the next blood kin of the whole blood take, and if none, the land escheats to the lord. land may never ascend from a son to his father or mother. . a child born before espousals is a bastard and may not inherit, even if his father is the husband. . if a middle brother purchases lands in fee and dies without heirs of his body, his eldest brother takes his lands and not the younger brother. the next possible heir in line is the younger brother, and the next after him, the father's brother. . for lands held in socage, if the heir is under , the next friend to the heir, to whom inheritance may not descend, shall have the ward of his body and lands until the heir is , at which time the heir may enter. . for lands held by knight's service, if the heir is under , then the lord shall have the ward and marriage of the heir until the heir is , if male, or (changed to in ), if female. when of age, the heir shall pay relief. . a lease for a term of years is a real chattel rather than a free tenement, and may pass without livery of seisin. . he who has possession of land, though it is by disseisin, has right against all men but against him who has right. . if a tenant is past due his rent, the lord may distrain his beasts which are on the land. . all birds, fowls, and wild beasts of the forest and warren are excepted out of the law and custom of property. no property may be had of them unless they are tame. however, the eggs of hawks and herons and the like belong to the man whose land they are on. . if a man steals goods to the value of d., or above, it is felony, and he shall die for it. if it is under the value of d., then it is but petit larceny, and he shall not die for it, but shall be punished at the discretion of the judges. this not apply to goods taken from the person, which is robbery, a felony punishable by death. . if the son is attainted [convicted of treason or felony with the death penalty and forfeiture of all lands and goods] in the life of the father, and after he purchases his charter of pardon of the king, and after the father dies; in this case the land shall escheat to the lord of the fee, insomuch that though he has a younger brother, yet the land shall not descend to him: for by the attainder of the elder brother the blood is corrupt, and the father in the law died without heir. . a man declared outlaw forfeits his profits from land and his goods to the king. . he who is arraigned upon an indictment of felony shall be admitted, in favor of life, to challenge thirty-five inquirers (three whole inquests would have thirty-six) peremptorily. with cause, he may challenge as many as he has cause to challenge if he can prove it. such peremptory challenge shall not be admitted in a private suit. . an accessory shall not be put to answer before the principal. . if a man commands another to commit a trespass, and he does it, the one who made the command is a trespasser. . the land of every man is in the law enclosed from other, though it lies in the open field, and a trespasser in it may be brought to court. . every man is bound to make recompense for such hurt as his beasts do in the growing grain or grass of his neighbor, though he didn't know that they were there. . if two titles are concurrent together, the oldest title shall be preferred. . he who recovers debt or damages in the king's court when the person charged is not in custody, may within a year after the judgment take the body of the defendant, and commit him to prison until he has paid the debt and damages. . if the demandant or plaintiff, hanging his writ (writ pending in court), will enter into the thing demanded, his writ shall abate. . by the alienation of the tenant, hanging the writ, or his entry into religion, or if he is made a knight, or she is a woman and takes a husband hanging the writ, the writ shall not abate. . the king may disseise no man and no man may disseise the king, nor pull any reversion or remainder out of him. - judicial procedure - 	the prohibition against maintenance was given penalties in of s. per person for a knight or lower giving livery of cloth or hats, and of s. for the receiver of such. a person who brought such suit to court was to be given half the penalty. the justices of assize and king's bench were authorized to inquire about such practices. the statute explicitly included ladies and any writing, oath, or promise as well as indenture. excepted were guilds, fraternities, and craftsmen of cities and boroughs which were founded on a good purpose; universities; the mayor and sheriffs of london; and also lords, knights, and esquires in time of war. a penalty of one year in prison without bail was given. in , there was a penalty of s. per livery to the giver of such, s. per month to the retainer or taker of such, and s. per month to the person retained. still this law was seldom obeyed. 	people took grievances outside the confines of the rigid common law to the chancellor, who could give equitable remedies under authority of a statute of (described in chapter ). the chancery heard many cases of breach of faith in the "use", a form of trust in which three parties were involved: the holder of land, feofees to whom the holder had made it over by conveyance or "bargain and sale", and the beneficiary or receiver of the profits of the land, who was often the holder, his children, relatives, friends, an institution, or a corporation. this system of using land had been created by the friars to get around the prohibition against holding property. lords and gentry quickly adopted it. the advantages of the use were that ) there was no legal restriction to will away the beneficial interest of the use although the land itself could not be conveyed by will; ) it was hard for the king to collect feudal incidents because the feoffees were often unknown ) the original holder was protected from forfeiture of his land in case of conviction of treason if the crown went to someone he had not supported. chancery gave a remedy for dishonest or defaulting feofees. 	chancery also provided the equitable relief of specific performance in disputes over agreements, for instance, conveyance of certain land, whereas the common law courts awarded only monetary damages by the writ of covenant. 	chancery ordered accounts to be made in matters of foreign trade because the common law courts were limited to accounts pursuant to transactions made within the nation. it also involved itself in the administration of assets and accounting of partners to each other. 	the chancellor took jurisdiction of cases of debt, detinue, and account which had been decided in other courts with oath-helping by the defendant. he did not trust the reliance on friends of the defendant swearing that his statement made in his defense was true. an important evidentiary difference between procedures of the chancery and the common law courts was that the chancellor could orally question the plaintiff and the defendant under oath. he also could order persons to appear at his court by subpoena, under pain of punishment, such as a heavy fine. 	whereas the characteristic award of the common law courts was seisin of land or monetary damages, chancery often enjoined certain action. because malicious suits were a problem, the chancery identified such suits and issued injunctions against taking them to any court. 	the chancery was given jurisdiction by statute over men of great power taking by force women who had lands and tenements or goods and not setting them free unless they bound themselves to pay great sums to the offenders or to marry them. a statute also gave chancery jurisdiction over servants taking their masters' goods at his death. 	justices of the peace, appointed by the crown, investigated all riots and arrested rioters, by authority of statute. if they had departed, the justices certified the case to the king. the case was then set for trial first before the king and his council and then at the king's bench. if the suspected rioters did not appear at either trial, they could be convicted for default of appearance. if a riot was not investigated and the rioters sought, the justice of the peace nearest forfeited , s. justices of the peace were not paid. for complex cases and criminal cases with defendants of high social status, they deferred to the justices of assize, who rode on circuit once or twice a year. since there was no requirement of legal knowledge for a justice of the peace, many referred to the "boke of the justice of the peas" compiled about for them to use. manor courts still formally admitted new tenants, registered titles, sales of land and exchanges of land, and commutation of services, enrolled leases and rules of succession, settled boundary disputes, and regulated the village agriculture. 	all attorneys shall be examined by the royal justices for their learnedness in the law and, at their discretion, those that are good and virtuous shall be received to make any suit in any royal court. these attorneys shall be sworn to serve well and truly in their offices. 	attorneys may plead on behalf of parties in the hundred courts. 	a qualification for jurors was to have an estate to one's own use or one of whom other persons had estates of fee simple, fee tail, or freehold in lands and tenements, which were at least s. per year in value. in a plea of land worth at least s. yearly or a personal plea with relief sought at least s., jurors had to have land in the bailiwick to the value of at least s., because perjury was considered less likely in the more sufficient men. 	in criminal cases, there were many complaints made that the same men being on the grand assize and petty assize was unfair because prejudicial. so it became possible for a defendant to challenge an indictor for cause before the indictor was put on the petty assize. then the petty assize came to be drawn from the country at large and was a true petty or trial jury. jurors were separated from witnesses. 	justices of the peace were to have lands worth s. yearly, because those with less had used the office for extortion and lost the respect and obedience of the people. 	a sheriff was not to arrest, but to transfer indictments to the justices of the peace of the county. he had to reside in his bailiwick. the sheriff could be sued for misfeasance such as bribery in the king's court. 	impeachment was replaced with bill of attainder during the swift succession of parliaments during the civil war. this was a more rapid and efficient technique of bringing down unpopular ministers or political foes. there was no introduction of evidence, nor opportunity for the person accused to defend himself, nor any court procedure, as there was with impeachment. 	an example of a case of common law decided by court of king's bench is russell's case ( ) as follows: in the king's bench one thomas russell and alice his wife brought a writ of trespass for goods taken from alice while she was single. the defendant appeared and pleaded not guilty but was found guilty by a jury at nisi prius, which assessed the damages at pounds. before the case was next to be heard in the king's court an injunction issued out of the chancery to the plaintiffs not to proceed to judgment, on pain of pounds, and for a long time judgment was not asked for. then hussey cjkb. asked spelman and fincham, who appeared for the plaintiff if they wanted to ask for judgment according to the verdict. fincham [p]: we would ask for judgment, except for fear of the penalty provided for in the injunction, for fear that our client will be imprisoned by the chancellor if he disobeys. fairfax, jkb: he can ask for judgment in spite of the injunction, for if it is addressed to the plaintiff his attorney can ask for judgment, and vice versa. hussey, cjkb: we have consulted together on this matter among ourselves and we see no harm which can come to the plaintiff if he proceeds to judgment. the law will not make him pay the penalty provided in the injunction. if the chancellor wants to imprison him he must send him to the fleet prison, and, as soon as you are there you will inform us and we shall issue a habeas corpus returnable before us, and when you appear before us we shall discharge you, so you will not come to much harm, and we shall do all we can for you. nevertheless, fairfax said he would go to the chancellor and ask him if he would discharge the injunction. and they asked for judgment and it was held that they should recover their damages as assessed by the jury, but they would not give judgment for damages caused by the vexation the plaintiff suffered through the chancery injunction. and they said that if the chancellor would not discharge the injunction, they would give judgment if the plaintiff would ask for it. 	an example of a petition to chancery in the s is hulkere v. alcote, as follows: to the right reverend father in god and gracious lord bishop of bath, chancellor of england, your poor and continual bedwoman lucy hulkere, widow of westminster, most meekly and piteously beseeches: that whereas she has sued for many years in the king's bench and in the common pleas for withholding diverse charters and evidences of land, leaving and delaying her dower of the manor of manthorpe in lincolnshire and also of the manor of gildenburton in northamptonshire, together with the withdrawing of her true goods which her husband gave her on his deathbed to the value of pounds and more, under record of notary, sued against harry alcote and elizabeth of the foresaid gildenburton within the same county of northampton. and by collusion and fickle counsel of the foresaid harry and elizabeth his mother there was led and shown for him within the common pleas a false release, sealed, to void and exclude all her true suit by record of true clerks and attorneys of the aforesaid common pleas. of the which false release proved she has a copy to show. [all this is] to her great hindrance and perpetual destruction unless she have help and remedy by your righteous and gracious lordship in this matter at this time. that it please your noble grace and pity graciously to grant a writ subpoena to command the foresaid henry alcote and elizabeth alcote to come before your presence by a certain day by you limited in all haste that they may come to westminster to answer to this matter abovesaid, for love of god and a deed of charity, considering graciously that the foresaid harry alcote, with another fellow of his affinity who is not lately hanged for a thief in franceled her into a garden at gildenburton and put her down on the ground, laying upon her body a board and a summer saddle and great stones upon the board, the foresaid harry alcote sitting across her feet and the other at her head for to have slain her and murdered her, and by grace of our lady her mother- in-law out walking heard a piteous voice crying and by her goodness she was saved and delivered, and otherwise would be dead. pledges to prosecute: john devenshire of berdevyle in essex and james kelom of london. returnable in michaelmas term. - - - chapter - - - - the times: - - 	henry tudor and other exiles defeated and killed richard iii on bosworth field, which ends the civil war of the roses between the lancaster and york factions. as king, henry vii restored order to the nation. he was readily accepted as king because he was descended from the lancaster royal line and he married a woman from the york royal line. henry was intelligent and sensitive. he weighed alternatives and possible consequences before taking action. he was convinced by reason on what plans to make. in his reign of years, henry applied himself diligently to the details of the work of government to make it work well. he strengthened the monarchy, shored up the legal system to work again, and provided a peace in the land in which a renaissance of the arts and sciences, culture, and the intellectual life could flourish. his primary strategy was enacting and enforcing statutes to shore up the undermined legal system, which includes the establishment of a new court: the court of the star chamber, to obtain punishment of persons whom juries were afraid to convict. it had no jury and no grand jury indictment. for speed and certainty, it tried people "ex officio": by virtue of its office. suspects were required to take an oath ex officio, by which they swore to truthfully answer all questions put to them. a man could not refuse to answer on the grounds of self-incrimination. the star chamber was the room in which the king's council had met since the s. 	the most prevalent problems were: murder, robbery, rape or forced marriage of wealthy women, counterfeiting of coin, extortion, misdemeanors by sheriffs and escheators, bribing of sheriffs and jurors, perjury, livery and maintenance agreements, idleness, unlawful plays, and riots. interference with the course of justice was not committed only by lords on behalf of their retainers; men of humbler station were equally prone to help their friends in court or to give assistance in return for payment. rural juries were intimidated by the old baronage and their armed retinues. juries in municipal courts were subverted by gangs of townsmen. justices of the peace didn't enforce the laws. the agricultural work of the nation had been adversely affected. 	henry made policy with the advice of his council and had parliament enact it into legislation. he dominated parliament by having selected most of its members. many of his council were sons of burgesses and had been trained in universities. he chose competent and especially trusted men for his officers and commanders of castles and garrison. the fact that only the king had artillery deterred barons from revolting. also, the baronial forces were depleted due to the civil war of the roses. if henry thought a magnate was exercising his territorial power to the king's detriment, he confronted him with an army and forced him to bind his whole family in recognizances for large sums of money to ensure future good conduct. since the king had the authority to interpret these pledges, they were a formidable check on any activity which could be considered to be disloyal. the earl of kent, whose debts put him entirely at the king's mercy, was bound to "be seen daily once in the day within the king's house". henry also required recognizances from men of all classes, including clergy, captains of royal castles, and receivers of land. the higher nobility now consisted of about twenty families. the heavy fines by the star court put an end to conspiracies to defraud, champerty [an agreement with a litigant to pay costs of litigation for a share in the damages awarded], livery, and maintenance. the ties between the nobility and the justices of the peace had encouraged corruption of justice. so henry appointed many of the lesser gentry and attorneys as justices of the peace. also he appointed a few of his councilors as nonresident justices of the peace. there were a total of about thirty justices of the peace per county. their appointments were indefinite and most remained until retirement or death. henry instituted the yeomen of the guard to be his personal bodyguards night and day. 	many bills of attainder caused lords to lose their land to the king. most of these lords had been chronic disturbers of the peace. henry required retainers to be licensed, which system lasted until about . henry was also known to exhaust the resources of barons he suspected of disloyalty by accepting their hospitality for himself and his household for an extended period of time. 	henry built up royal funds by using every available procedure of government to get money, by maximizing income from royal estates by transferring authority over them from the exchequer to knowledgeable receivers, and from forfeitures of land and property due to attainders of treason. he also personally reviewed all accounts and initialed every page, making sure that all payments were made. he regularly ordered all men with an income of s. [ pounds] yearly from lands or revenue in hand to receive knighthoods, which were avoided by those who did not want to fight, or pay a high fee. as a result, the crown became rich and therefore powerful. 	henry's queen, elizabeth, was a good influence on his character. her active beneficence was a counteracting influence to his avaricious predisposition. when henry and his queen traveled through the nation, they often stopped to talk to the common people. they sometimes gave away money, such as to a man who had lost his hand. henry paid for an intelligent boy he met to go to school. 	henry had the first paper mill erected in the nation. he fostered the reading of books and the study of roman law, the classics, and the bible. he had his own library and gave books to other libraries. 	the age of entry to university was between and . it took four years' study of grammar, logic, and rhetoric to achieve the bachelor of arts degree and another five before a master could begin a specialized study of the civil law, canon law, theology, or medicine. humanist studies were espoused by individual scholars at the three centers of higher learning: oxford university, cambridge university, and the inns of court in london. the inns of court attracted the sons of gentry and merchants pursuing practical and social accomplishments. the text of �readings� to members of the inns survive from this time. in the legalistic climate of these times, attorneys were prosperous. 	the enclosure of land by hedges for sheep farming continued, especially by rich merchants who bought country land for this purpose. often this was land that had been under the plough. any villeins were given their freedom and they and the tenants at will were thrown off it immediately. that land held by copyholders of land who had only a life estate, was withheld from their sons. only freeholders and copyholders with the custom of the manor in their favor were secure against eviction. but they could be pressured to sell by tactics such as breeding rabbits or keeping geese on adjoining land to the detriment of their crops, or preventing them from taking their traditional short cuts across the now enclosed land to their fields. the real line of distinction between rural people was one of material means instead of legal status: free or unfree. on one extreme was the well-to-do yeoman farmer farming his own land. on the other extreme was the agricultural laborer working for wages. henry made several proclamations ordering certain enclosures to be destroyed and tillage to be restored. 	other land put to use for sheep breeding was waste land. there were three sheep to every person. the nearby woodlands no longer had wolves or lynx who could kill the sheep. bears and elk are also gone.there were still deer, wild boar, wildcats and wild cattle in vast forests for the lords to hunt. wood was used for houses, arms, carts, bridges, and ships. 	the villages were still isolated from each other, so that a visitor from miles away was treated as warily as a foreigner. most people lived and died where they had been born. a person's dialect indicated his place of origin. the life of the village still revolved around the church. in some parishes, its activities were highly organized, with different groups performing different functions. for example, the matrons looked after a certain altar; the maidens raised money for a chapel or saw to the gilding of the images; the older men collected money for church repair; and the younger men organized the church ales and the church plays. wills often left property or rents from leased land to the church. church cows and sheep given could be leased out to villagers. church buildings given could be leased out, turned over to the poor, used to brew ale or bake bread for church ales, or used in general as a place for church activities. church ales would usually a good source of income; alehouses would be closed during the ceremonies and parishioners would contribute malt for the ale and grain, eggs, butter, cheese, and fruits. 	the largest town, london, had a population of about , . other towns had a population less than , . the population was increasing, but did not reach the level of the period just before the black death. 	in most large towns, there were groups of tailors and hatmakers, glovers, and other leatherworkers. some towns had a specialization due to their proximity to the sources of raw materials, such as nails, cutlery, and effigies and altars. despite the spread of wool manufacturing to the countryside, there was a marked increase of industry and prosperity in the towns. the principal streets of the larger towns were paved with gravel. guild halls became important and imposing architecturally. 	a large area of london was taken up by walled gardens of the monasteries and large mansions. there were some houses of stone and timber and some mansions of brick and timber clustered around palaces. in these, bedrooms increased in number, with rich bed hangings, linen sheets, and bolsters. bedspreads were introduced. nightgowns were worn. fireplaces became usual in all the rooms. tapestries covered the walls. carpets were used in the private rooms. some of the great halls had tiled floors. the old trestle tables were replaced by tables with legs. benches and stools had backs to lean on. a long gallery was used for exercise, recreation such as music and dancing, and private conversations. women and men wore elaborate headdresses. on the outer periphery are taverns and brothels, both made of mud and straw. houses are beginning to be built outside the walls of london along the thames because the collapse of the power of the great feudal lords decreased the fear of an armed attack on london. the merchants introduced this idea of living at a distance from the place of work so that they could escape living in the narrow, damp, and dark lanes of the city and have more light and space. indeed no baronial army ever threatened the king again. east of london were cattle pastures, flour mills, bakers, cloth-fulling mills, lime burners, brick and tile makers, bell founders, and ship repairing. there was a drawbridge on the south part of london bridge for defense and to let ships through. water sports were played on the thames such as tilting at each other with lances from different boats. 	the tailors' and linen armorers' guild received a charter in from the king as the "merchant tailors" to use all wares and merchandise, especially wool cloth, as well wholesale as retail, throughout the nation. some schooling was now being made compulsory in certain trades; the goldsmiths' company made a rule that all apprentices had to be able to read and write. there are guilds of ironmongers, salters, and haberdashers [hats and caps] 	a yeoman was the second-rank person of some importance, below a knight, below a gentleman, below a full member of a guild. in london, it meant the journeyman or second adult in a small workshop. these yeomen had their own fraternities and were often on strike. some yeomen in the large london industries, e.g. goldsmiths, tailors, cloth workers, who had served an apprenticeship started their own businesses in london suburbs outside the jurisdiction of their craft to search them. 	the merchant adventurers created a london fellowship confederacy to make membership of their society and compliance with its regulations binding on all cloth traders and to deal with common interests and difficulties such as taxation, relations with rulers, and dangers at sea. they made and enforced trading rules, chartered fleets, and organized armed convoys when the seas were unsafe and coordinated policies with henry vii. membership could be bought for a large fee or gained by apprenticeship or by being the son of a member. 	tudor government was paternalistic, curtailing cutthroat competition, fixing prices and wages, and licensing production under grants of monopoly to achieve a stable and contented society and a fair living for all. 	foreign trade was revived because it was a period of comparative peace. the nation sought to sell as much as possible to foreign nations and to buy at little as possible and thereby increase its wealth in gold and silver, which could be used for currency. 	ships weighed tons and had twice the cargo space they had previously. their bows were more pointed and their high prows made them better able to withstand gales. the mariners' compass with a pivoting needle and circular dial with a scale was introduced. the scale gave precision to directions. ships had three masts. on the first was a square sail. on the second was a square sail with a small rectangular sail above it. on the third was a three cornered lateen sail. these sails make it possible to sail in almost any direction. this opened the seas of the world to navigation. at this time navigators kept their knowledge and expertise secret from others. adventurous seamen went on voyages of discovery, such as john cabot to north america in , following italian christopher columbus' discovery of the new world in . ferdinand magellan of portugal circumnavigated the world in , proving uncontrovertedly that the earth was spherical rather than flat. theologians had to admit that jerusalem was not the center of the world. sailors overcame their fear of tumbling into one of the openings into hell that they believed were far out into the atlantic ocean and ceased to believe that a red sunset in the morning was due to a reflection from hell. seamen could venture forth into the darkness of the broad atlantic ocean with a fair expectation of finding their way home again. they gradually learned that there were no sea serpents or monsters that would devour foolhardy mariners. they learned to endure months at sea on a diet of salt beef, beans, biscuits, and stale water and the bare deck for a bed. but there were still mutinies and disobedient pilots. mortality rates among seamen were high. there are more navy ships, and they have some cannon. 	the blast furnace was introduced in the iron industry. a blast of hot air was constantly forced from a stove into the lower part of the furnace which was heating at high temperature a mixture of the iron ore and a reducing agent that combined with the oxygen released. after the iron was extracted, it was allowed to harden and then reheated and hammered on an anvil to shape it and to force out the hard, brittle impurities. blast furnace heat was maintained by bellows worked by water wheels. alchemists sought to make gold from the baser metals and to make a substance that would give them immortality. there was some thought that suffocation in mines, caverns, wells, and cellars was not due to evil spirits, but to bad air such as caused by "exhalation of metals". 	in , german peter henlein invented the pocket watch and the mainspring inside it. there were morality plays in which the seven deadly sins: pride, covetousness, lust, anger, gluttony, envy, and sloth, fought the seven cardinal virtues: faith, hope, charity, prudence, temperance, justice, and strength, respectively, for the human soul. the play "everyman" demonstrates that every man can get to heaven only by being virtuous and doing good deeds in his lifetime. it emphasizes that death may come anytime to every man, when his deeds will be judged as to their goodness or sinfulness. card games were introduced. the legend of robin hood was written down. 	the commons gained the stature of the lords and statutes were regularly enacted by the "assent of the lords spiritual and temporal and the commons". the commons now assented instead merely requested enactments. - the law - 	royal proclamations clarifying, refining or amplifying the law had the force of parliamentary statutes. in , the king proclaimed that "forasmuch as many of the king our sovereign lord's subjects [have] been disposed daily to hear feigned, contrived, and forged tidings and tales, and the same tidings and tales, neither dreading god nor his highness, utter and tell again as though they were true, to the great hurt of divers of his subjects and to his grievous displeasure: therefore, in eschewing of such untrue and forged tidings and tales, the king our said sovereign lord straitly chargeth and commandeth that no manner person, whatsoever he be, utter nor tell any such tidings or tales but he bring forth the same person the which was author and teller of the said tidings or tales, upon pain to be set on the pillory, there to stand as long as it shall be thought convenient to the mayor, bailiff, or other official of any city, borough, or town where it shall happen any such person to be taken and accused for any such telling or reporting of any such tidings or tales. furthermore the same our sovereign lord straitly chargeth and commandeth that all mayors, bailiffs, and other officers diligently search and inquire of all such persons tellers of such tidings and tales not bringing forth the author of the same, and them set on the pillory as it is above said." he also proclaimed in that no one, except peace officers, may carry a weapon, e.g. bows, arrows, or swords, in any town or city unless on a journey. he proclaimed in that no one may refuse to receive silver pennies or other lawful coin as payment regardless of their condition as clipped, worn, thin, or old, on pain of imprisonment and further punishment. 	a statute provided that: lords holding castles, manors, lands and tenements by knight's service of the king shall have a writ of right for wardship of the body as well as of the land of any minor heir of a deceased person who had the use [beneficial enjoyment of a trust] of the land for himself and his heirs as if the land had been in the possession of the deceased person. and if such an heir is of age, he shall pay relief to the lord as if he had inherited possession of the land. an heir in ward shall have an action of waste against his lord as if his ancestor had died seised of the land. that is, lands of "those who use" shall be liable for execution of his debt and to the chief lord for his relief and heriot, and if he is a bondsman, they may be seized by the lord. the king tried to retain the benefits of feudal incidents on land by this statute of uses, but attorneys sought to circumvent it by drafting elaborate and technical instruments to convey land free of feudal burdens. 	any woman who has an estate in dower, or for a term of life, or in [fee] tail, jointly with her husband, or only to herself, or to her use, in any manors, lands, tenements, or other hereditaments of the inheritance or purchase of her husband, or given to the said husband and wife in tail, or for term of life, by any of the ancestors of the said husband, or by any other person seised to the use of the said husband, or of his ancestors, who, by herself or with any after taken husband; discontinue, alienate, release, confirm with warranty or, by collusion, allow any recovery of the same against them or any other seised to their use, such action shall be void. then, the person to whom the interest, title, or inheritance would go after the death of such woman may enter and possess such premises. this does not affect the common law that a woman who is single or remarried may give, sell, or make discontinuance of any lands for the term of her life only. 	all deeds of gift of goods and chattels made of trust, to the use of the giver [grantor and beneficiary of trust], to defraud creditors are void. 	it is a felony to carry off against her will, a woman with lands and tenements or movable goods, or who is heir-apparent to an ancestor. this includes taking, procuring, abetting, or knowingly receiving a woman taken against her will. 	a vagabond, idle, or suspected person shall be put in the stocks for three days with only bread and water, and then be put out of the town. if he returns, he shall spend six days in the stocks. (a few years later this was changed to one and three days, respectively.) every beggar who is not able to work, shall return to the hundred where he last dwelled, is best known, or was born and stay there. 	no one may take pheasants or partridges by net snares or other devices from his own warren [breeding ground], upon the freehold of any other person, or else forfeit s., one half to the owner of the land and the other half to the suer. no one may take eggs of any falcon, hawk, or swan out of their nest, whether it is on his land or any other man's land, on pain of imprisonment for one year and fine at the king's will, one half to the king, and the other half to the holder of the land, or owner of the swan. no man shall bear any english hawk, but shall have a certificate for any imported hawk, on pain for forfeiture of such. no one shall drive falcons or hawks from their customary breeding place to another place to breed or slay any for hurting him, or else forfeit s. after examination by a justice of the peace, one half going to the king and one half to the suer. 	any person without a forest of his own who has a net device with which to catch deer shall pay s. for each month of possession. anyone stalking a deer with beasts anywhere not in his own forest shall forfeit s. anyone taking any heron by device other than a hawk or long bow shall forfeit s. d. no one shall take a young heron from its nest or pay s. for each such heron. two justices may decide such an issue, and one tenth of the fine shall go to them. 	no man shall shoot a crossbow except in defense of his house, other than a lord or one having , s. of land because their use had resulted in too many deer being killed. (the longbow was not forbidden.) 	no beasts may be slaughtered or cut up by butchers within the walls of a town, or pay d. for every ox and d. for every cow or other beast, so that people will not be annoyed and distempered by foul air, which may cause them sickness. 	no tanner may be a currier [dressed, dyed, and finished tanned leather] and no currier may be a tanner. no shoemaker [cordwainer] may be a currier and no currier may be a shoemaker. no currier shall curry hides which have not been tanned. no tanner shall sell other than red leather. no tanner may sell a hide before it is dried. no tanner may tan sheepskins. 	no long bow shall be sold over the price of s. d. 	good wood for making bows may be imported without paying customs. 	no grained cloth of the finest making shall be sold for more than s., nor any other colored cloth for more than s. per yard, or else forfeit s. for every yard so sold. no hat shall be sold for more than d. and no cap shall be sold for more than s. d., or else forfeit s. for each so sold. 	silver may not be sold or used for any use but goldsmithery or amending of plate to make it good as sterling, so that there will be enough silver with which to make coinage. 	each feather bed, bolster, or pillow for sale shall be stuffed with one type of stuffing, that is, dry pulled feathers or with clean down alone, and with no sealed feathers nor marsh grass, nor any other corrupt stuffings. each quilt, mattress, or cushion for sale shall be stuffed with one type of stuffing, that is, clean wool, or clean flocks alone, and with no horsehair, marsh grass, neatshair, deershair, or goatshair, which is wrought in lime fats and gives off an abominable and contagious odor when heated by a man's body, on pain of forfeiture of such. 	salmon shall be sold by standard volume butts and barrels. large salmon shall be sold without any small fish or broken-bellied salmon and the small fish shall be packed by themselves only, or else forfeit s. d. herring shall be sold at standard volumes. the herring shall be as good in the middle and in every part of the package as at the ends of the package, or else forfeit s. d. eels shall be sold at standard volumes, and good eels shall not be mixed with lesser quality eels, or else forfeit s. the fish shall be packed in the manner prescribed or else forfeit s. d. for each vessel. 	fustians shall always be shorn with the long shear, so that it can be worn for at least two years. if an iron or anything else used to dress such injures the cloth so that it wears out after four months, s. shall be forfeited for each default, one half to the king and the other half to the suer. 	pewter and brass ware for sale shall be of the quality of that of london and marked by its maker, on pain of forfeiture of such, and may be sold only at open fairs and markets or in the seller's home, or else forfeit s. if such false ware is sold, its maker shall forfeit its value, one half to the king and one half to the searchers. anyone using false weights of such wares shall forfeit s., one half to the king and one half to the suer, or if he cannot pay this fine, to be put in the stocks until market day and then be put in the pillory all the market time. 	no alien nor denizen [foreigner allowed to reside in the nation with certain rights and privileges] may carry out of the nation any raw wool or any woolen cloth which has not been barbed, rowed, and shorn. 	silk ribbons, laces, and girdles of silk may not be imported, since they can be made in the nation. 	no one shall import wine into the nation, but on english ships, or else forfeit the wine, one half to the king and one half to the seizer of the wine. 	no one may take out of the nation any [male] horse or any mare worth more than s. s. or under the age of three years, upon pain of forfeiture of such. however, a denizen may take a horse for his own use and not to sell. this is to stop losing horses needed for defense of the nation and to stop the price of a horse from going up. 	freemen of london may go to fairs and markets with wares to sell, despite the london ordinance to the contrary. 	merchants residing in the nation but outside london shall have free access to foreign markets without exaction taken of more than s. sterling by the confederacy of london merchants, which have increased their fee so much, s., that merchants not in the confederacy have been driven to sell their goods in london for less than they would get at a foreign market. exacting more is punishable by a fine of s. and damages to the grieved party of ten times the excess amount taken. 	for the privilege of selling merchandise, a duty of scavage shall be taken of merchant aliens, but not of denizens. any town official who allows disturbing of a person trying to sell his merchandise because he has not paid scavage, shall pay a fine of s. 	coin clipped or diminished shall not be current in payment, but may be converted at the king's mint into plate or bullion. anyone refusing to take coins with only normal wear may be imprisoned by the mayor, sheriff, bailiff, constable or other chief officer. new coins, which have a circle or inscription around the outer edge, will be deemed clipped if this circle or inscription is interfered with. 	the penalty for usury is placement in the pillory, imprisonment for half a year, and a fine of s. (the penalty was later changed to one half thereof.) 	lawbooks in use at the inns of court included "the books of magna carta with diverse old statutes", "doctor and student" by st. germain, "grand abridgment" by fitzherbert, and "new natura brevium" by lombard. - judicial procedure - 	this stastute made changes in the judicial process: the chancellor, treasurer, keeper of the king's privy seal, or two of them, with a bishop selected by them, and a temporal lord of the king's council selected by them, and the two chief justices of the king's bench shall constitute the court of the star chamber. it shall have the authority to call before it by writ or by privy seal anyone accused of "unlawful maintenances, giving of liveries, signs and tokens, and retainers by indentures, promises, oaths, writings, or otherwise embraceries of his subjects" and witnesses, and impose punishment as if convicted under due process of law. these laws shall now be enforced: if a town does not punish the murderer of a man murdered in the town, the town shall be punished. a town shall hold any man who wounds another in peril of death, until there is perfect knowledge whether the man hurt should live or die. upon viewing a dead body, the coroner should inquire of the killers, their abettors, and anyone present at the killing and certify these names. in addition, the murderer and accessories indicted shall be tried at the king's suit within a year of the murder, which trial will not be delayed until a private suit is taken. if acquitted at the king's suit, he shall go back to prison or let out with bail for the remainder of the year, in which time the slain man's wife or next of kin may sue. for every inquiry made upon viewing a slain body coroners shall be paid s. d. out of the goods of the slayer or from a town not taking a murderer, but letting him escape. if the coroner does not make inquiry upon viewing a dead body, he shall be fined s. to the king. if a party fails to appear for trial after a justice has taken bail from him, a record of such shall be sent to the king. 	henry sat on the star chamber up to , it heard many cases of forgery, perjury, riot, maintenance, fraud, libel, and conspiracy. it could mete out any punishment, except death or any dismemberment. this included life imprisonment, fines, pillory, whipping, branding, and mutilation. henry vii sat on it. if a justice of the peace does not act on any person's complaint, that person may take that complaint to another justice of the peace, and if there is no remedy then, he may take his complaint to a justice of assize, and if there is not remedy then, he may take his complaint to the king or the chancellor. there shall then be inquiry into why the other justices did not remedy the situation. if it is found that they were in default in executing the laws, they shall forfeit their commissions and be punished according to their demerits. 	justices of the peace shall make inquiry of all offenses in unlawful retaining, examine all suspects, and certify them to the king's bench for trial there or in the king's council, and the latter might also proceed against suspects on its own initiative on information given. 	perjury committed by unlawful maintenance, embracing, or corruption of officers, or in the chancery, or before the king's council, shall be punished in the discretion of the chancellor, treasurer, both the chief justices, and the clerk of the rolls. 	the star chamber, chancellor, king's bench and king and council have the power to examine all defendants, by oath or otherwise, to adjudge them convicted or attainted. they can also be found guilty by confession, examination, or otherwise. if a defendant denied doing the acts of which he is convicted, he was subject to an additional fine to the king and imprisonment. violations of statutes may be heard by the justices of assize or the justices of the peace, except treason, murder, and other felony. 	actions on the case shall be treated as expeditiously in the courts of the king's bench and common pleas as actions of trespass or debt. 	proclamation at four court terms of a levy of a fine shall be a final end to an issue of land, tenements, or other hereditaments and the decision shall bind persons and their heirs, whether they have knowledge or not of the decision, except for women-covert who were not parties, persons under the age of twenty-one, in prison, out of the nation, or not of whole mind, who are not parties. these may sue within five years of losing such condition. also, anyone not a party may claim a right, title, claim, or interest in the said lands, tenements, or other hereditaments at the time of such fine recorded, within five years after proclamations of the fine. 	a defendant who appeals a decision for the purpose of delaying execution of such shall pay costs and damages to the plaintiff for the delay. 	no sheriff, undersheriff, or county clerk shall enter any complaints in their books unless the complaining party is present. and no more complaints than the complaining party knows about shall be entered. the penalty is s. for each such false complaint, one half to the king and the other half to the suer after examination by a justice of the peace. this is to prevent extortion of defendants by false complaints. the justice shall certify this examination to the king, on pain of a fine of s. a bailiff of a hundred who does not do his duty to summon defendants shall pay a fine of s. for each such default, after examination by a justice of the peace. sheriffs' records of fines imposed and bailiffs' records of fines collected may be reviewed by a justice of the peace to examine for deceit. 	any sheriff allowing a prisoner to escape, whether from negligence or for a bribe, shall be fined, if the prisoner was indicted of high treason, at least , s. for each escape. however, if the prisoner was in their keeping because of a suspicion of high treason, the fine shall be at least s.; and if indicted of murder or petite treason, at least s.; and if suspected of murder or petite treason, s.; and if suspected of other felonies, s. petite treason was that by a wife to her husband or a man to his lord. 	any person not responding to a summons for jury service shall be fined d. for the first default, and s. for the second, and double for each subsequent default. 	a pauper may sue in any court and be assigned a attorney at no cost to him. 	a justice of the peace to whom has been reported hunting by persons disguised with painted faces or visors or otherwise, may issue a warrant for the sheriff or other county officer to arrest such persons and bring them before the justice. such hunting in disguise or hunting at night or disobeying such warrant is a felony. this is to stop large mobs of disguised people from hunting together and then causing riots, robberies, and murders. 	benefit of clergy may be used only once, since this privilege has made clerics more bold in committing murder, rape, robbery, and theft. however, there will be no benefit of clergy in the case of murder of one's immediate lord, master, or sovereign. (this begins the gradual restriction over many years of benefit of clergy until it disappears. also, benefit of clergy was often disregarded in unpeaceful times.) 	for an issue of riot or unlawful assembly, the sheriff shall call jurors, each of lands and tenements at least s. of charter land or freehold or s. d. of copyhold or of both. for each default of the sheriff, he shall pay s. and if the jury acquits, then the justice, sheriff, and under-sheriff shall certify the names of any jurors maintained or embraced and their misdemeanors, or else forfeit s. any person proved to be a maintainer or embracer shall forfeit s. to the king and be committed to ward. 	the principal leaders of any riot or unlawful assembly shall be imprisoned and fined and be bound to the peace with sureties at a sum determined by the justices of the peace. if the riot is by forty people or heinous, the justices of peace shall certify such and send the record of conviction to the king. 	the king's steward, treasurer, and comptroller have authority to question by twelve discreet persons any servant of the king about making any confederacies, compassings, conspiracies, or imaginations with any other person to destroy or murder the king or one of his council or a lord. trial shall be by twelve men of the king's household and punishment as by felony in the common law. 	ohanges in the judicial process other than those made by statute were made by court decision. for instance, the royal justices decided that only the king could grant sanctuary for treason and not the church. after this, the church withdrew the right of sanctuary from second time offenders. 	the king's council has practically limited itself to cases in which the state has an interest, especially the maintenance of public order. chancery became an independent court rather than the arm of the king and his council. in chancery and the king's bench, the intellectual revival brought by humanism inspires novel procedures to be devised to meet current problems in disputed titles to land, inheritance, debt, breach of contract, promises to perform acts or services, deceit, nuisance, defamation, and the sale of goods. 	a new remedy is specific performance, that is, performance of an act rather than money damages. 	evidence is now taken from witnesses. 	various courts had overlapping jurisdiction. for instance, trespass could be brought in the court of common pleas because it was a civil action between two private persons. it could also be brought in the court of the king's bench because it broke the king's peace. it was advantageous for a party to sue for trespass in the king's court because there a defendant could be made to pay a fine to the king or be imprisoned, or declared outlaw if he did not appear at court. 	a wrongful step on the defendant's land, a wrongful touch to his person or chattels could be held to constitute sufficient force and an adequate breach of the king's peace to sustain a trespass action. a new form of action is trespass on the case, which did not require the element of force or of breach of the peace that the trespass offense requires. trespass on the case [or "case" for short] expands in usage to cover many types of situations. stemming from it is "assumpsit", which provided damages for breach of an oral agreement and for a written agreement without a seal. 	parliament's supremacy over all regular courts of law was firmly established and it was called "the high court of parliament", paradoxically, since it rarely came to function as a law court. 	when a land holder enfeoffs his land and tenements to people unknown to the remainderman in [fee] tail, so that he does not know who to sue, he may sue the receiver of the profits of the land and tenements for a remedy. and the receivers shall have the same advantages and defenses as the feoffees or as if they were tenants. and if any deceased person had the use for himself and his heirs, then any of his heirs shall have the same advantages and defenses as if his ancestor had died seised of the land and tenements. and all recoveries shall be good against all receivers and their heirs, and the feofees and their heirs, and the co- feoffees of the receivers and their heirs, as though the receivers were tenants indeed, or feofees to their use, or their heirs of the freehold of the land and tenements. 	if a person feoffs his land to other persons while retaining the use thereof for himself, it shall be treated as if he were still seised of the land. thus, relief and heriot will still be paid for land in socage. and debts and executions of judgments may be had upon the land and tenements. 	the penalty for not paying customs is double the value of the goods. 	the town of london shall have jurisdiction over flooding and unlawful fishing nets in that part of the thames river that flows next to it. 	the city of london shall have jurisdiction to enforce free passage of boats on the thames river in the city, interruption of which carries a fine of s., two-thirds to the king and one third to the suer. 	jurors impaneled in london shall be of lands, tenements, or goods and chattels, to the value of s. and if the case concerns debt or damages at least s, the jurors shall have lands, tenements, goods, or chattels, to the value of s. this is to curtail the perjury that has gone on with jurors of little substance, discretion, and reputation. 	a party grieved by a false verdict of any court in london may appeal to the hustings court of london, which hears common pleas before the mayor and aldermen. each of the twelve alderman shall pick from his ward four jurors of the substance of at least , s. to be impaneled. if twenty-four of them find that the jurors of the petty jury has given an untrue verdict, each such juror shall pay a fine of at least s. and imprisonment not more than six months without release on bail or surety. however, if it is found that the verdict was true, then the grand jury may inquire if any juror was bribed. if so, such juror bribed and the defendant who bribed him shall each pay ten times the amount of the bribe to the plaintiff and be imprisoned not more than six months without release on bail or surety. the bishop's court in london had nine offenders a week by . half of these cases were for adultery and sexual offenses, and the rest were for slander, blasphemy, missing church services, and breach of faith. punishment was penance by walking barefoot before the cross in the sunday procession dressed in a sheet and holding a candle. - - - chapter - - - - the times: - - 	renaissance humanism came into being in the nation. in this development, scholars in london, oxford, and cambridge emphasized the value of classical learning, especially platonism and the study of greek literature as the means of better understanding and writing. they studied the original greek texts and became disillusioned with the filtered interpretations of the church, for example of the bible and aristotle. there had long been displeasure with the priests of the church. they were supposed to preach four times yearly, visit the sick, say the daily liturgies, and hear confessions at least yearly. but there were many lapses. many were not celibate, and some openly lived with a woman and had children. complaints about them included not residing within their parish community, doing other work such as raising crops, and taking too much in probate, mortuary fees, and marriage fees. probate fees had risen from at most s. to s. in the last hundred years. mortuary fees ranged from / to / of a deceased person's goods. sanctuary was abused. people objected to the right of arrest by ecclesiastical authorities. 	also, most parish priests did not have a theology degree or even a bachelor's degree, as did many laymen. in fact, many laymen were better educated than the parish priests. no one other than a laborer was illiterate in the towns. 	humanist grammar [secondary] schools were established in london by merchants and guilds. in , the founder and dean of st. paul's school placed its management in the hands of london "citizens of established reputation" because he had lost confidence in the good faith of priests and noblemen. the sons of the nobility, attorneys, and merchants were starting to go to grammar school now instead of being taught at home by a tutor. at school, they mingled with sons of yeomen, farmers, and tradesmen, who were usually poor. the usual age of entry was six or seven. classical latin and greek were taught and the literature of the best classical authors was read. secondary education teachers were expected to know latin and have studied the ancient philosophers, history, and geography. the method of teaching was for the teacher to read textbooks to the class from a prepared curriculum. the students were taught in latin and expected not to speak english in school. they learned how to read and to write latin, to develop and amplify a theme by logical analysis, and to essay on the same subject in the narrative, persuasive, argumentative, commending, consoling, and inciting styles. they had horn books with the alphabet and perhaps a biblical verse on them. this was a piece of wood with a paper on it held down by a sheet of transparent horn. they also learned arithmetic (solving arithmetical problems and casting accounts). disobedience incurred flogging by teacher as well as by parents. spare the rod and spoil the child was the philosophy. schools now guarded the morals and behavior of students. there were two week vacations at christmas and at easter. royal grammar books for english and latin were proclaimed by henry in to be the only grammar book authorized for students. in , he proclaimed a certain primer of prayers in english to be the only one to be used by students. 	the first school of humanist studies arose in oxford with the foundation of corpus christi college in by bishop richard fox. it had the first permanent reader or professor in greek. the professor of humanity was to extirpate all barbarisms by the study of cicero, sallust, valerius maximus, and quintilian. the reader of theology was to read texts of the holy fathers but not those of their commentators. oxford university was granted a charter which put the greater part of the town under control of the chancellor and scholars. the mayor of oxford was required to take an oath at his election to maintain the privileges and customs of the university. roman law and other regius professorships were founded by the king at oxford and cambridge. teaching of undergraduates was the responsibility of the university rather than of the colleges, though some colleges had live-in teachers. most colleges were exclusively for graduate fellows, though this was beginning to change. the university took responsibility for the student's morals and behavior and tutors sometimes whipped the undergraduates. for young noblemen, a more important part of their education than going to university was travel on the continent with a tutor. this exposure to foreign fields was no longer readily available through war or pilgrimage. the purpose was practical - to learn about foreign people and their languages, countries, and courts. knowledge of the terrain, resources, prosperity, and stability of their countries was particularly useful to a future diplomatic or political career. 	understanding of the celestial world began to change. contemporary thought was that the nature of all things was to remain at rest, so that movement and motion had to be explained by causes. the earth was stationary and the heavens were spherical and revolved around the earth every twenty-four hours. the universe was finite. the firmament extended outward in a series of rotating, crystalline, ethereal spheres to which were attached the various points of celestial geography. first came the circle of the moon. the sun orbited the earth. the fixed stars rotated on an outer firmament. finally, there was the abode of god and his heavenly hosts. different principles ruled the celestial world; it was orderly, stable, ageless, and enduring. but the world of man changed constantly due to its mixed four elements of air, earth, fire, and water each trying to disentangle itself from the others and seeking to find its natural location. the heavenly spheres could affect the destinies of men, such as through fate, fortune, intelligence, cherubim, seraphim, angels, and archangels. astrologers read the celestial signs and messages. 	then a seed of doubt was cast on this theory by nicholaus copernicus, a timid monk in poland, who found inconsistencies in ptolemy's work, but saw similarity in the movements of the earth and other planets. he inferred from the "wandering" planetary movements with loops that their motion could be explained simply if they were revolving in circular paths around the sun, rather than around the earth. in his book of , he also expressed his belief that the earth also revolved around the sun. this idea so shocked the world that the word "revolution" became associated with radical change. he thought it more likely that the earth rotated than that the stars moved with great speed in their large orbits. he proposed that the earth spins on its own axis about once every twenty-four hours, with a spin axis at about a / degree tilt from the orbital axis, thus explaining a slow change in the overall appearances of the fixed stars which had been observed since the time of ptolemy. he deduced from astronomical measurements that the correct order of the planets from the sun was: mercury, venus, earth, mars, jupiter, and saturn. the church considered his ideas heretical because contradictory to its dogma that man and the earth were the center of the universe. a central sun evoked images of pagan practices of sun worship. news of new ideas in science traveled quickly to english scholars and professionals 	the physicians of london were incorporated to oversee and govern the practice of medicine. a faculty of physicians was established at oxford and cambridge. a royal college of physicians was founded in london in by the king's physician. the college of physicians taught more practical medicine and anatomy than the universities. only graduates of the college of physicians or of oxford or cambridge were allowed to practice medicine or surgery. 	medical texts were hippocrates and galen. these viewed disease as only part of the process of nature without anything divine. they stressed empiricism, experience, collections of facts, evidences of the senses, and avoidance of philosophical speculations. some observations of hippocrates were: �when sleep puts an end to delirium, it is a hopeful sign.� �when on a starvation diet, the patient should not be allowed to become fatigued.� �old men usually have less illness than young ones, but such as they have last, as a rule, till death.� �pleurisy, pneumonia, colds, sore throat, and headache are more likely to occur during winter seasons.� �when one oversleeps, or fails to sleep, the condition suggests disease." hippocrates had asserted that madness was simply a disease of the brain and then galen had agreed and advocated merciful treatment of the insane. galen's great remedies were proper diet, exercise, massage, and bathing. he taught the importance of a good water supply and good drainage. he advised that baking bread in a large oven was superior to cooking in a small oven, over ashes, or in a pan in wholesomeness, digestibility, and flavor. greek medicinal doctrines were assumed, such as that preservation of the health of the body was dependent on air, food, drink, movement and repose, sleeping and waking, excretion and retention, and the passions. 	it was widely known that sleep was restorative and that bad news or worry could spoil one's digestion. an italian book of showed that post-mortem examinations could show cause of death by gallstones, heart disease, thrombosis of the veins, or abscesses. in began the practice of giving bodies of hanged felons to surgeons to dissect. this was to deter the commission of felony. there was some feeling that dissection was a sacrilege, that the practice of medicine was a form of sorcery, and that illness and disease should be dealt with by prayer and/or atonement because caused by sin, the wrath of god, or by the devil. food that was digested was thought to turn into a vapor which passed along the veins and was concreted as blood, flesh, and fat. after , there was a book listing hundreds of drugs with preparation directions, but their use and application was by trial and error. 	flemish physician andreas vesalius, secretly dissected human corpses, finding them hanging on public gibbets or competing with dogs for those incompletely buried in cemeteries. he begged doctors to allow him to examine the bodies of their fatal cases. he ingratiated himself with judges who determined the time and place of execution of criminals. in he published the first finely detailed description of human anatomy. in it, there was no missing rib on one side of man, and this challenged the theory of the woman eve having been made from a rib of the man adam. 	in the s, ambroise pare from france, a barber-surgeon who was the son of a servant, was an army surgeon. wounds at this time were treated with boiling oil and spurting vessels were closed by being seared with a red-hot iron. after he ran out of boiling oil, he observed that the soldiers without this treatment were healing better than those with this treatment. so he advocated ceasing the practice of cauterizing wounds. he also began tying arteries with cord to stop their bleeding after amputation many other surgical techniques. 	in switzerland, theophrastus paracelsus, an astrologer and alchemist who later became a physician, did not believe that humor imbalance caused disease nor in treatment by bloodletting or purging. he believed that there were external causes of disease, e.g. toxic matter in food, contagion, defective physical or mental constitution, cosmic influences differing with climate and country, or affliction sent providence. he urged that wounds be kept clean rather than given poultices. in , he pioneered the application of chemistry to physiology, pathology, and the treatment of disease by starting clinical diagnosis and treatment of disease by highly specific medicines, instead of by cure-alls. for instance, he used alkalis to treat disease, such as gout, indicated by certain substances in the urine, which also started urinalysis. he perceived that syphilis was caused by contagion and used mercury to cure it. he found curative powers also in opium, sulphur, iron, and arsenic. opium was made by drying and cooking the capsule of the poppy and was one of the few really effective early drugs. paracelsus urged alchemists to try to prepare drugs from minerals for the relief of suffering. he claimed to acquire knowledge of cures through spiritual contacts to occult wisdom. he believed that a human being has an invisible body as well as a visible one and that it is closely attuned to imagination and the spiritual aspect of an individual. he noticed that one's attitudes and emotions, such as anger, could affect one's health. he sometimes used suggestion and signs to help a patient form mental images, which translated into cures. he saw insanity as illness instead of possession by evil spirits. 	students were beginning to read for the bar by their own study of the newly available printed texts, treatises, and collections of statute law and of cases, instead of listening in court and talking with attorneys. 	in , anthony fitzherbert wrote "boke of husbandry", which set forth the most current methods of arable farming, giving details of tools and equipment, advice on capital outlay, methods of manuring, draining, ploughing, and rick-building. it was used by many constantly, and was often carried around in the pocket. this began a new way to disseminate new methods in agriculture. he also wrote a "boke of surveying", which relied on the perch rod and compass dial, and gave instruction on how to set down the results of a survey. in , gemma frisius laid down the principles of topographical survey by triangulation. this improved the quality of surveys and produced accurate plots. 	geoffrey chaucer's "canterbury tales" was a popular book. through chaucer, london english became a national standard and the notion of "correct pronunciation" came into being.the discoveries and adventures of amerigo vespucci, a portuguese explorer, were widely read. the north and south american continents were named for him. 	london merchant guilds began to be identified mainly with hospitality and benevolence instead of being trading organizations. twelve great companies dominated city politics and effectively chose the mayor and aldermen. they were, in order of precedence, mercers, grocers, drapers, fishmongers, goldsmiths, skinners, tailors, haberdashers, ironmongers, salters, vintners, and the clothworkers (composed from leading fullers and shearmen). the leading men of these guilds were generally aldermen and the guilds acted like municipal committees of trade and manufactures. then they superintended the trade and manufactures of london much like a government department. they were called livery companies and categorized their memberships in three grades: mere membership, livery membership, and placement on the governing body. livery members were distinguished by having the clothing of the brotherhood [its livery] and all privileges, and proprietary and municipal rights, in the fullest degree. they generally had a right to a place at the company banquets. they were invited by the governing body, as a matter of favor, to other entertainments. these liverymen were usually those who had bought membership and paid higher fees because they were richer. their pensions were larger than those of mere members. those with mere membership were freemen who had only the simple freedom of the trade. the masters were usually householders. the journeymen, yeomanry, bachelors were simple freemen. most of these companies had almshouses attached to their halls for the impoverished, disabled, and elderly members and their widows and children. for instance, many members of the goldsmiths had been blinded by the fire and smoke of quicksilver and some members had been rendered crazed and infirm by working in that trade. the freedom and rights of citizenship of the city could only be obtained through membership in a livery company. 	a lesser guild, the leathersellers, absorbed the glovers, pursers, and pouchmakers, some of whom became wage earners of the leathersellers. but others of these craftsmen remained independent. the whittawyers, who treated horse, deer, and sheep hides with alum and oil, had become wage earners for the skinners. 	londoners went to the fields outside the city for recreation and games. when farmers enclosed some suburban common fields in , a crowd of young men marched out to them and, crying "shovels and spades", uprooted the hedges and filled in the ditches, thus reclaiming the land for their traditional games. the last major riot in london was aroused by a speaker on may day in when a thousand disorderly young men, mostly apprentices, defied the curfew and looted shops and houses of aliens. a duke with two thousand soldiers put it down in mid-afternoon, after which the king executed fifteen of the rioters. 	many english migrated to london. there were ambitious young men and women hopeful of betterment through employment, apprenticeship, higher wages, or successful marriage. on the other hand, there were subsistence migrants forced to leave their homes for food, work, or somewhere to live. there was much social mobility. for instance, between and , of persons admitted as freemen of london, were the sons of gentlemen, the sons of yeomen, and the sons of farm workers. london grew in population about twice as fast as the nation. 	there are wards of london as of . this is the number for the next four centuries. each ward has an alderman, a clerk, and a chief constable. there are also in each ward about to elected officials including prickers, benchers, blackbootmen, fewellers [keepers of greyhounds], scribes, a halter-cutter, introducers, upperspeakers, under speakers, butlers, porters, inquestmen, scavengers, constables, watchmen, a beadle, jurymen, and common councilmen. the wardmote had inquest jurisdiction over immorality or bad behavior such as vagrancy, delinquency, illegitimacy, and disputes. this contributed greatly to social stability. in , henry ordered the london brothels closed. a small gaol was established in the clink district of southwark, giving the name "clink" to any small gaol. london ordinances required journeymen to work from a.m. to p.m. in winter, with a total of minutes breaks for breakfast, dinner, and an afternoon drink, for d. in the summer they had to work for two hours longer for d. at its peak in the s the court employed about gentlemen, which was about half the peerage and one-fifth of the greater gentry. henry issued a proclamation ordering noblemen and gentlemen in london not employed by the court to return to their country homes to perform their service to the king. 	though there was much agreement on the faults of the church and the need to reform it, there were many disagreements on what philosophy of life should take the place of church teachings. the humanist thomas more was a university trained intellectual. his book "utopia", idealized an imaginary society living according to the principles of natural virtue. in it, everything is owned in common and there is no need for money. all believe that there is a god who created the world and all good things and who guides men, and that the soul is immortal. but otherwise people choose their religious beliefs and their priests. from this perspective, the practices of other christians, scholastic theologians, priests and monks, superstition, and ritual looked absurd. more encouraged a religious revival. aristotle's position that virtuous men would rule best is successfully debated against plato's position that intellectuals and philosophers would be the ideal rulers. 	more believed the new humanistic studies should be brought to women as well as to men. he had tutors teach all his children latin, greek, logic, theology, philosophy, mathematics, and astronomy from an early age. his eldest daughter margaret became a recognized scholar and translated his treatise on the lord's prayer. other high class women became highly educated. they voiced their opinions on religious matters. in the s, the duchess of suffolk spoke out for reform of the clergy and against images, relics, shrines, pilgrimages, and services in latin. she and the countess of sussex supported ministers and established seminaries for the spread of the reformed faith. 	more pled for proportion between punishment and crime. he urged that theft no longer be punished by death because this only encouraged the thief to murder his victim to eliminate evidence of the theft. he opined that the purpose of punishment was to reform offenders. he advocated justice for the poor to the standard of justice received by the rich. 	erasmus, a former monk, visited the nation for a couple of years and argued that reason should prevail over religious belief. he wrote the book "in praise of folly", which noted man's elaborate pains in misdirected efforts to gain the wrong thing. for instance, it questioned what man would stick his head into the halter of marriage if he first weighed the inconveniences of that life? or what woman would ever embrace her husband if she foresaw or considered the dangers of childbirth and the drudgery of motherhood? childhood and senility are the most pleasant stages of life because ignorance is bliss. old age forgetfulness washes away the cares of the mind. a foolish and doting old man is freed from the miseries that torment the wise and has the chief joy of life: garrulousness. the seekers of wisdom are the farthest from happiness; they forget the human station to which they were born and use their arts as engines with which to attack nature. the least unhappy are those who approximate the naiveness of the beasts and who never attempt what is beyond men. as an example, is anyone happier than a moron or fool? their cheerful confusion of the mind frees the spirit from care and gives it many-sided delights. fools are free from the fear of death and from the pangs of conscience. they are not filled with vain worries and hopes. they are not troubled by the thousand cares to which this life is subject. they experience no shame, fear, ambition, envy, or love. in a world where men are mostly at odds, all agree in their attitude towards these innocents. they are sought after and sheltered; everyone permits them to do and say what they wish with impunity. however, the usual opinion is that nothing is more lamentable than madness. the christian religion has some kinship with folly, while it has none at all with wisdom. for proof of this, notice that children, old people, women, and fools take more delight than anyone else in holy and religious things, led no doubt solely by instinct. next, notice that the founders of religion have prized simplicity and have been the bitterest foes of learning. finally, no people act more foolishly than those who have been truly possessed with christian piety. they give away whatever is theirs; they overlook injuries, allow themselves to be cheated, make no distinction between friends and enemies, shun pleasure, and feast on hunger, vigils, tears, labors, and scorn. they disdain life, and utterly prefer death. in short, they have become altogether indifferent to ordinary interests, as if their souls lived elsewhere and not in their bodies. what is this, if not to be mad? the life of christians is run over with nonsense. they make elaborate funeral arrangements, with candles, mourners, singers, and pallbearers. they must think that their sight will be returned to them after they are dead, or that their corpses will fall ashamed at not being buried grandly. christian theologians, in order to prove a point, will pluck four or five words out from different places, even falsifying the sense of them if necessary, and disregard the fact that their context was relevant or even contradicted their points. they do this with such brazen skill that our attorneys are often jealous of them. 	attorney christopher st. german wrote the legal treatise "doctor and student", in which he deems the law of natural reason to be supreme and eternal. the law of god and the law of man, as enunciated by the church and royalty, merely supplement the law of natural reason and may change from time to time. examples of the law of reason are: it is good to be loved. evil is to be avoided. do onto others as you would have them do unto you. do nothing against the truth. live peacefully with others. justice is to be done to every man. no one is to wrong another. a trespasser should be punished. from these is deduced that a man should love his benefactor. it is lawful to put away force with force. it is lawful for every man to defend himself and his goods against an unlawful power. 	like his father, henry viii dominated parliament. he used this power to reform the church of england in the 's. the protestant reformation cause, started in germany in by martin luther posting his thesis, had become identified with henry's efforts to have his marriage of eighteen years to the virtuous catherine annulled so he could marry a much younger woman: anne and have a son. the end of his six successive wives was: annulled, beheaded, died; annulled, beheaded, survived. henry viii was egotistical, arrogant, and self- indulgent. this nature allowed him to declare himself the head of the church of england instead of the pope. 	henry used and then discarded officers of state. one such was thomas wolsey, the son of a town grazier [one who pastures cattle and rears them for market] and butcher, who was another supporter of classical learning. he rose through the church, the gateway to advancement in a diversity of occupations of clergy such as secretary, librarian, teacher, attorney, doctor, author, civil servant, diplomat, and statesman. he was a court priest when he aligned himself with henry, both of whom wanted power and glory and dressed extravagantly. but he was brilliant and more of a strategist than henry. wolsey called himself a reformer and started a purge of criminals, vagrants and prostitutes within london, bringing many before the council. but most of his reforming plans were not brought to fruition, but ended after his campaign resulted in more power for himself. wolsey rose to be chancellor to the king and also archbishop of york. as the representative of the pope for england, he exercised almost full papal authority there. but he controlled the church in england in the king's interest. he was second only to the king and he strengthened the crown by consolidating power and income that had been scattered among nobles and officeholders. he also came to control the many courts. wolsey centralized the church in england and dissolved the smaller monasteries, the proceeds of which he used to build colleges at oxford and his home town. he was an impartial and respected justice. when wolsey was not able to convince the pope to give henry an annulment of his marriage, henry dismissed him and took his property, shortly after which wolsey died on his way to be imprisoned in the tower to be tried for treason. 	thomas. cromwell, a top royal official, was a self-taught attorney, arbitrator, merchant, and accountant. he was the son of a clothworker/blacksmith/brewer/innkeeper, like wolsey, he was a natural orator. he drafted and had passed legislation that created a new church of england. he had all men swear an oath to the terms of the succession statute. thomas more, the successor chancelllor to wolsey, was known for his honesty and was a highly respected man. more did not yield to henry's bullying for support for his statute declaring the succession to be vested in the children of his second marriage, and his statute declaring himself the supreme head of the church of england, instead of the pope. he did not expressly deny this supremacy statute, so was not guilty of treason under its terms. but silence did not save him. he was attainted for treason on specious grounds and beheaded. his conviction rested on the testimony of one perjured witness, who misquoted more as saying that parliament did not have the power to require assent to the supremacy statute because it was repugnant to the common law of christendom. 	henry ruled with an iron fist. in , he issued a proclamation that "any rioters or those in an unlawful assembly shall return to their houses" or "we will proceed against them with all our royal force and destroy them and their wives and children." in , he proclaimed that anyone hurting or maiming an officer while trying to make an arrest "shall lose and forfeit all their lands, goods, and chattel" and shall suffer perpetual imprisonment. moreover, if one murdered such an officer, he would suffer death without privilege of sanctuary or of clergy. in , he proclaimed that there would be no shooting by handgun except on a shooting range. henry had parliament pass bills of attainder against many people. for the first time, harsh treatment of prisoners in the tower, such as placement in dungeons with little food, no bed, and no change of clothes, became almost a matter of policy. through his host of spies, cromwell heard what men said to their closest friends. words idly spoken were distorted into treasonable utterances. fear spread through the people. silence was a person's only possibility of safety. 	cromwell developed a technique for the management of the house of commons which lasted for generations. he promulgated books in defense of royal spiritual authority, which argued that canon law was not divine but merely human and that clerical authority had no foundation in the bible. a reformed english bible was put in all parish churches. reformers were licensed to preach. cromwell ordered sermons to be said which proclaimed the supremacy of the king. he instituted registers to record baptisms, marriages, and burials in every county, for the purpose of reducing disputes over descent and inheritance. he dissolved all the lesser monasteries. when cromwell procured a foreign wife for henry whom henry found unattractive, he was attainted and executed. 	henry now reconstructed his council to have a fixed membership, an official hierarchy based on rank, a secretariat, an official record, and formal powers to summon individuals before it by legal process. because it met in the king's privy lodgings, it was called the "privy council". it met daily instead of just during the terms of the westminster courts from late autumn to early summer. it communicated with the king through intermediaries, of whom the most important was the king's secretary. because it was a court council, part of it traveled with the king, while the other part conducted london business. when henry went to war in france, part of the council went with him, and part of it stayed to attend the queen regent. 	thomas cranmer, archbishop of canterbury, wrote the first english common book of prayer. with its use beginning in , church services were to be held in english instead of latin. the celebration of the lord's supper was a communion among the parishioners and minister all sharing wine and bread. it replaced the mass, in which the priests were thought to perform a miraculous change of the substance of bread and wine into the body and blood of christ, which the priest then offered as a sacrifice for remission of pain or guilt. this reflected the blood sacrifice of christ dying on the cross. in the mass, only the priests drank the wine. the mass, miracles, the worship of saints, prayers for souls in purgatory, and pilgrimages to shrines such as that of thomas becket, were all to be discontinued. imprisonment or exile rather than death was made the penalty for heresy and blasphemy, and also for adultery. 	after the king dissolved the greater monasteries, he took and sold their ornaments, silver plate and jewelry, lead from roofs of their buildings, and finally much of the land itself. many maps of manors and lands were made at this time. three monasteries were converted into the first three treating hospitals in london, one for the diseased, one for the poor, and one, bethlehem (or "bedlam" for short), for the mentally ill. but there were still many poor, sick, blind, aged, and impotent people in the streets since the closure of the monasteries. in , there were , people in need of relief, including orphans, sick or aged, poor men overburdened with their children, decayed householders, and idle vagabonds. the poor often begged at parishes, where they spread disease. london then set up a poor relief scheme. the bridewell was established to set to work the idle, vagabonds, and prostitutes making feather bed ticks and wool-cards, drawing of wire, carding, knitting, and winding of silk. parishes were required to give money for the poor in . other towns followed london's lead in levying a poor rate. 	henry used the proceeds from the sale of the monasteries for building many new palaces and wood ships for his navy. in war, these navy ships had heavy guns which could sink other ships. in peace time, these ships were hired out to traders. large ships were constructed in docks, made partly by digging and partly by building walls. in , henry issued a proclamation ordering all vagabonds, ruffians, masterless men, and evil-disposed persons to serve him in his navy. 	the former land of the monasteries, about % of the country's land, was sold and resold, usually to great landowners, or leased. title deeds became important as attorneys sought the security that title could give. some land went to entrepreneurial cloth manufacturers, who converted the buildings for the manufacture of cloth. they bought the raw wool and hired craftsmen for every step of the manufacturing process to be done in one continuous process. this was faster than buying and selling the wool material between craftsmen who lived in different areas. also, it was more efficient because the amount of raw wool bought could be adjusted to the demand for cloth. 	many landowners now could live in towns exclusively off the rents of their rural land. rents were increased so much that tenants could not pay and were evicted. they usually became beggars or thieves. much of their former land was converted from crop raising to pasture for large herds of sheep. arable farming required many workers, whereas sheep farming required only one shepherd and herdsman. there were exceptional profits made from the export of wool cloth. but much raw wool was still exported. its price went up from s. d. per tod [about pounds] in to s. d. in . 	villeinage was now virtually extinct. but a lord could usually claim a small money-rent from the freeholder, sometimes a relief when his land was sold or passed at death, and occasionally a heriot from his heir. 	there was steady inflation. landlords made their leases short term so that they could raise rents as prices rose. copyholders gradually acquired a valuable right in their holdings: their rent became light - less that a shilling an acre. 	the knights had % of the land, the nobles %, the church %, and king %. at least % of the population still lived in the country. rich traders built town or country houses in which the emphasis was on comfort and privacy. there was more furniture, bigger windows filled with glass, thick wallpaper, and formal gardens. use of thick, insulating wallpaper rose with the rise of paper mills. it was stenciled, hand-painted, or printed. some floors were tiled instead of stone or wood. they were still strewn with straw. the owners ate in a private dining room and slept in their own rooms with down quilts. their soap was white. they had clothing of white linen and white wool, leather slippers, and felt hats. men wore long tunics open at the neck and filled in with pleated linen and enormous puffed sleeves. the fortunes of landowners varied; some went into aristocratic debt by ostentatiously spending on building, clothes, food, and drink, and some became indebted by inefficient management. some had to sell their manors and dismiss their servants. 	all people generally had enough food because of the commercialization of agriculture. even the standard meal of the peasant was bread, bacon, cheese, and beer or cider, with beef about twice a week. also, roads were good enough for the transport of foodstuffs thereon. four-wheeled wagons for carrying people as well as goods. goods were also transported by the pulling of barges on the rivers from paths along the river. a plough with wheels was used as well as those without. 	henry made proclamations reminding people of the apparel laws, but they were difficult to enforce. henry also made a proclamation limiting the consumption of certain meat according to status. seven dishes were allowed to bishops, dukes, marquises, and earls; six to other temporal lords; five to justices, the king's council, sheriffs, and persons with an income of at least pounds yearly or goods worth pounds; four to persons with an income of at least pounds or goods worth pounds; and three dishes to persons with an income of at least pounds or goods worth pounds. there were limits on types of meat served, such as a maximum of one dish of great fowl such as crane, swan, and peacock; eight quail per dish; and twelve larks in a dish. people used tin or pewter dishes, platters, goblets, saucers, spoons, saltcellars, pots, and basins. they used soap to wash themselves, their clothes, and their dishes. a solid, waxy soap was from evaporating a mixture of goat fat, water, and ash high in potassium carbonate. they had bedcovers on their beds. cloth bore the mark of its weaver and came in many colors. cloth could be held together with pins that had a shank with a hook by which they were closed. they burned wood logs in the fireplaces in their houses. so much wood was used that young trees were required by statute to be given enough lateral space to spread their limbs and were not cut down until mature. the organ and the harp, precursor to the piano, were played. 	people went to barbers to cut their hair and to extract teeth. they went to people experienced with herbs, roots, and waters for treatment of skin conditions such as sores, cuts, burns, swellings, irritated eyes or scaly faces. for more complicated ailments, they went to physicians, who prescribed potions and medicines. they bought potions and medicines from apothecaries and pharmacists. 	the king, earls, who ruled counties, and barons, who had land and a place in the house of lords, still lived in the most comfort. the king's house had courtyards, gardens, orchards, wood-yards, tennis courts, and bowling alleys. 	the walls of the towns were manned by the citizens themselves, with police and watchmen at their disposal. in inns, travelers slept ten to a bed and there were many fleas and an occasional rat or mouse running through the rushes strewn on the floor. the inn provided a bed and ale, but travelers brought their own food. each slept with his purse under his pillow. 	in markets, sellers set up booths for their wares. they sold grain for making oatmeal or for sowing one's own ground. wine, butter, cheese, fish, chicken, and candles could also be bought. butchers bought killed sheep, lambs, calves, and pigs to cut up for selling. tanned leather was sold to girdlemakers and shoemakers. goods bought in markets were presumed not to be stolen, so that a purchaser could not be dispossessed of goods bought unless he had knowledge that they were stolen. 	the ruling group of the towns came to be composed mostly of merchants, manufacturers, attorneys, and physicians. some townswomen were independent traders. the governed class contained small master craftsmen and journeyman artisans, small traders, and dependent servants. the major streets of london were paved with stone, with a channel in the middle. more water conduits from hills, heaths, and springs were built to provide the citizens of london with more water. the sewers carried only surface water away. households were forbidden to use the sewers. privies emptied into cesspools. 	the merchant adventurers' fellowship brought virtually all adventurers under its control and organized and regulated the national cloth trade. it had a general court of the adventurers sitting in the london mercers' hall. various companies were granted monopolies for trade in certain areas of the world such as turkey, spain, france, venice, the baltic, and africa. these were regulated companies. that is they obtained complete control of a particular foreign market, but any merchant who cared to join the company, pay its dues, and obey its regulations, might share in the benefits of its monopoly. the companies generally confined trade to men who were primarily merchants and not shopkeepers. in explorer sebastian cabot formed the muscovy company, which was granted a monopoly in its charter for trade with north russia. it was oriented primarily to export english woolen cloth. it was the first company trading on a joint stock, which was arranged as a matter of convenience and safety. the risks were too great for any few individuals. it hired ships and assigned space to each member to ship his goods at his own risk. the dividend was returned to the subscribers of the capital they put in plus an appropriate share of any profits made on the voyage. the members began leaving their money with the company for the next voyage. a general stock grew up. in were the first industrial companies: mines royal, and mineral and battery works. the cloth, mining, iron, and woodcraft industries employed full-time workers on wages. in the ironworks and foundries, the furnace blowing engines were worked by water wheels or by a gear attached to donkeys or horses. the forge hammers were worked at first by levers and later by water wheels. the day and night hammering filled the neighborhood with their noise. 	land held in common was partitioned. there were leases of mansion houses, smaller dwelling houses, houses with a wharf having a crane, houses with a timber yard, houses with a garden, houses with a shed, shops, warehouses, cellars, and stables. lands with a dye-house or a brew-house were devised by will along with their dying or brewing implements. there were dairies making butter and cheese. 	citizens paid taxes to the king amounting to one tenth of their annual income from land or wages. merchants paid "forced loans" and benevolences. the national government was much centralized and had full-time workers on wages. a national commission of sewers continually surveyed walls, ditches, banks, gutters, sewers, ponds, bridges, rivers, streams, mills, locks, trenches, fish- breeding ponds, and flood gates. when low places were threatened with flooding, it hired laborers, bought timber, and hired carts with horses or oxen for necessary work. mayors of cities repaired water conduits and pipes under their cities' ground. 	the matchlock musket came into use, but did not replace the bow because its matchcord didn't remain lit in rainy weather. the matchlock was an improvement over the former musket because both hands could be used to hold and aim the matchlock musket because the powder was ignited by a device that touched a slow-burning cord to the powder when a trigger was pulled with one finger. 	after the break with rome, cooperation among villagers in church activities largely ceased. the altars and images previously taken care of by them disappeared and the paintings on the walls were covered with white or erased, and scripture texts put in their place. people now read the new bible, the "paraphrases" of erasmus, foxe's "book of martyrs", and the works of bishop jewel. the book of martyrs taught the duty and splendor of rising above all physical danger or suffering. the canon law of the church was abolished and its study prohibited. professorships of the civil law were founded at the two universities. the inns of court grew. attorneys had more work with the new laws passed to replace the church canons of the church. they played an important role in town government and many became wealthy. they acquired town houses in addition to their rural estates. 	church reforms included abolishing church sanctuaries. benefit of clergy was restricted more. parsons were allowed to marry. archbishops were selected by the king without involvement by the pope. decisions by archbishops in testamentary, matrimonial, and marriage annulment matters were appealable to the court of chancery instead of to the pope. the clergy's canons were subject to the king's approval. the control of the church added to the powers of the crown to summon and dissolve parliament, coin money, create peers [members of the house of lords who received individual writs of summons to parliament], pardon criminals, order the arrest of dangerous persons without customary process of law in times of likely insurrection, tax and call men to arms without the consent of parliament if the country were threatened with invasion. 	about there began indictments and executions for witchcraftery which lasted for about a century. one of the reasons for suspecting a woman to be a witch was that she lived alone, which was very unusual. 	henry ordered all alien anabaptists, who denied the validity of infant baptism, to leave the realm. - the law - 	offices may not be bought and sold, but only granted by justices of the royal courts. 	the king's proclamations shall be observed and kept as though they were acts of parliament. the penalty shall not be more than that stated in the proclamation, except for heresy. 	a person having land in socage or fee simple may will and devise his land by will or testament in writing. 	a person holding land by knight's service may will and devise by his last will and testament in writing part of his land to his wife and other parts of his land to his children, as long as / of entailed land is left to the king. 	anyone serving the king in war may alienate his lands for the performance of his will, and if he dies, his feoffees or executors shall have the wardship of his heir and land. 	a person who leases land for a term of years, even if by indenture or without a writing, may have a court remedy as do tenants of freehold for any expulsion by the lessor which is contrary to the lease, covenant, or agreement. these termers, their executors and assigns, shall hold and enjoy their terms against the lessors, their heirs and assigns. the lessor shall have a remedy for rents due or waste by a termer after recovering the land as well as if he had not recovered the land. 	a lord may distrain land within his fee for rents, customs, or services due without naming the tenant, because of the existence of secret feoffments and leases made by their tenants to unknown persons. 	anyone seised of land to the use or trust of other persons by reason of a will or conveyance shall be held to have lawful seisin and possession of the land, because by common law, land is not devisable by will or testament, yet land has been so conveyed, which has deprived married men of their courtesy, women of their dower, the king of the lands of persons attainted, the king of a year's profits from felons' lands, and lords of their escheats. (this was difficult to enforce.) 	a woman may not have both a jointure [promise of husband to wife of property or income for life after his death] and dower of her husband's land. (persons had purchased land to hold jointly with their wives) 	a sale of land must be in writing, sealed, and registered in its county with the clerk of that county. if the land is worth less than s. per year, the clerk is paid d. if the land exceeds s. yearly, the clerk is paid s. d. 	an adult may lease his lands or tenements only by a writing under his seal for a term of years or a term of life, because many people who had taken leases of lands and tenements for a term of years or a term of lives had to spend a lot for repair and were then evicted by heirs of their lessors. 	a husband may not lease out his wife's land. 	no woman-covert, child, idiot, or person of insane memory may devise land by will or testament. 	the land of tenants-in-common may be partitioned by them so that each holds a certain part. 	no bishop or other official having authority to take probate of testaments may take a fee for probating a testament where the goods of the testator are under s., except that the scribe writing the probate of the testament may take d., and for the commission of administration of the goods of any man dying intestate, being up to s, may be charged d. where the goods are over s. but up to s. sterling, probate fees may be s. d. at most, whereof the official may take s. d. at most, with d. residue to the scribe for registering the testament. where the goods are over s. sterling, probate fees may be s. at most, whereof the official may take s. d. at most, with s. d. residue to the scribe, or the scribe may choose to take d. per lines of writing of the testament. if the deceased had willed by his testament any land to be sold, the money thereof coming nor the profits of the land shall not be counted as the goods or chattel of the deceased. where probate fees have customarily been less, they shall remain the same. the official shall approve and seal the testament without delay and deliver it to the executors named in such testaments for the said sum. if a person dies intestate or executors refuse to prove the testament, then the official shall grant the administration of the goods to the widow of the deceased person, or to the next of kin, or to both, in the discretion of the official, taking surety of them for the true administration of the goods, chattels, and debts. where kin of unequal degree request the administration, it shall be given to the wife and, at his discretion, other requestors. the executors or administrators, along with at least two persons to whom the deceased was indebted, or to whom legacies were made, or, upon their refusal or absence, two honest kinsmen, shall make an inventory of the deceased's goods, chattels, ware, merchandise, as well moveable as not moveable, and take it upon their oaths to the official. 	no parish clergyman or other spiritual person shall take a mortuary fee or money from a deceased person with movable goods under the value of s., a deceased woman-covert, a child, a person keeping no house, or a traveler. only one mortuary fee may be taken of each deceased and that in the place where he most dwelled and lived. where the deceased's moveable goods are to the value of s. or more, above his debts paid, and under s., a mortuary up to s. d. may be taken. where such goods are s. or more and under s., mortuary up to s. d. may be taken. where such goods are s. or above, mortuary up to s. may be taken. but where mortuaries have customarily been less, they shall remain the same. 	executors of a will declaring land to be sold for the payment of debts, performance of legacies to wife and children, and charitable deeds for the health of souls, may sell the land despite the refusal of other executors to agree to such sale. 	a man may not marry his mother, stepmother, sister, niece, aunt, or daughter. 	any clergy preaching contrary to the king's religious doctrine shall recant for the first offense. he shall abjure and bear a faggot (a badge resembling a faggot of wood which would have been used for burning him as a heretic) for the second offense. if he refuses to abjure or bear a faggot or offends a third time, he shall be burned and lose all his goods. if a layperson teaches, defends, or maintains a religious doctrine other than the king's, he shall recant and be imprisoned for twenty days for the first offense. he shall abjure and bear a faggot if he does not recant or offends a second time. he shall forfeit his goods and suffer perpetual imprisonment if he does not abjure or bear a faggot or offends a third time. 	the entry of an apprentice into a craft shall not cost more than s. d. after his term, his entry shall not be more than s. d. this replaced the various fees ranging from this to s. 	no master of a craft may require his apprentice to make an oath not to compete with him by setting up a shop after the term of his apprenticeship. 	no alien may take up a craft or occupation in the nation. 	no brewer of ale or beer to sell shall make wood vessels or barrels, and coopers shall use only good and seasonable wood to make barrels and shall put their mark thereon. every ale or beer barrel shall contain of the king's standard gallons. the price of beer barrels sold to ale or beer brewers or others shall be d. 	an ale-brewer may employ in his service one cooper only to bind, hoop and pin, but not to make, his master's ale vessels. 	no butcher may keep a tanning-house. 	tanned leather shall be sold only in open fairs and markets and after it is inspected and sealed. 	only people living in designated towns may make cloth to sell, to prevent the ruin of these towns by people taking up both agriculture and cloth-making outside these towns. no one making cloth for sale may have more than one woolen loom or else forfeit s. this to protect the weavers' ability to maintain themselves and their families from rich clothiers who keep many looms and employ journeymen and unskillful persons at low wages. no one owning a fulling mill may own a weaving loom. no weaver may own a fulling mill. 	no one shall shoot in or keep in his house any handgun or crossbow unless he has , s. yearly. 	no one may hunt or kill hare in the snow since their killing in great numbers by men other than the king and noblemen has depleted them. 	no one shall take an egg or bird of any falcon or hawk out of its nest on the king's land. no one may disguise himself with hidden or painted face to enter a forest or park enclosed with a wall for keeping deer to steal any deer or hare. 	ducks and geese shall not be taken with any net or device during the summer, when they haven't enough feathers to fly. but a freeholder of s. yearly may hunt and take such with long bow and spaniels. 	no one may sell or buy any pheasant except the king's officers may buy such for the king. 	no butcher may kill any calf born in the spring. 	no grain, beef, mutton, veal, or pork may be sold outside the nation. 	every person with acres of agricultural land, shall sow one quarter acre with flax or hemp-feed. 	all persons shall kill crows on their land to prevent them from eating so much grain at sowing and ripening time and destroying hay stacks and the thatched roofs of houses and barns. they shall assemble yearly to survey all the land to decide how best to destroy all the young breed of crows for that year. every village and town with at least ten households shall put up and maintain crow nets for the destruction of crows. 	no land used for raising crops may be converted to pasture. no woods may be converted to agriculture or pasture. the efforts to enforce these proved these prohibitions were not successful. 	no one shall cut down or break up dikes holding salt water and fresh water from flooding houses and pastures. 	no one shall dump tin-mining debris, dung, or rubbish into rivers flowing into ports or take any wood from the walls of the port, so that ships may always enter at low tide. 	a person may lay out a new highway on his land where the old one has been so damaged by waterways that horses with carriages cannot pass, with the consent of local officials. 	only poor, aged, and disabled persons may beg. begging without a license is punishable by whipping or setting in the stocks days with only bread and water. 	alien palm readers shall no longer be allowed into the nation, because they have been committing felonies and robberies. 	butchers may not sell beef, pork, mutton, or veal from carcasses for more than / penny and / farthing [ / penny] per pound. 	french wines may not sell at retail for more than d. per gallon. 	a barrel maker or cooper may sell a beer barrel for d. 	no longer may aliens bring books into the nation to sell because now there are sufficient printers and bookbinders in the nation. 	no one may buy fresh fish other than sturgeon, porpoise, or seal from an alien to put to sale in the nation. 	every person with an enclosed park where there are deer, shall keep two tall and strong mares in such park and shall not allow them to be mounted by any short horse, because the breeding of good, swift, and strong horses has diminished. 	a man may have only as many trotting horses for the saddle as are appropriate to his degree. 	no one may maintain for a living a house for unlawful games such as bowling, tennis, dice, or cards. no artificer, craftsman, husbandman, apprentice, laborer, journeyman, mariner, fisherman may play these games except at christmas under his master's supervision. noblemen and others with a yearly income of at least , s. may allow his servants to play these games at his house. 	hemp or flax may not be watered in any river or stream where animals are watered. 	no one shall sell merchandise to another and then buy back the same merchandise within three months at a lower price. no one shall sell merchandise to be paid for in a year above the sum of s. per s. worth of merchandise. no one shall sell or mortgage any land upon condition of payment of a sum of money before a certain date above the sum of s. per s. per year. 	no one shall commit forgery by counterfeiting a letter made in another person's name to steal any money, goods, or jewels. 	no one shall libel by accusing another of treason in writing and leaving it in an open place without subscribing his own name to it. 	if any servant converts to his own use more than s. worth of jewels, money, or goods from caskets entrusted to him for safekeeping by a nobleman or other master or mistress, it shall be a felony. 	if a person breaks into a dwelling house by night to commit burglary or murder, is killed by anyone in that house, or a person is killed in self-defense, the killer shall not forfeit any lands or goods for the killing. 	killing by poisoning shall be deemed murder and is punishable by death. 	a person who has committed a murder, robbery, or other felony he has committed shall be imprisoned for his natural life and be burned on the hand, because those who have been exiled have disclosed their knowledge of the commodities and secrets of this nation and gathered together to practice archery for the benefit of the foreign realm. if he escapes such imprisonment, he shall forfeit his life. 	a person convicted or outlawed shall be penalized by loss of life, but not loss of lands or goods, which shall go to his wife as dower and his heirs. 	buggery may not be committed on any person or beast. 	no one shall slander or libel the king by speeches or writing or printing or painting. 	no one shall steal fish from a pond on another's land by using nets or hooks with bait or by drying up the pond. 	the mayor of london shall appoint householders to supervise watermen rowing people across the thames river because many people have been robbed and drowned by these rowers. all such boats must be at least feet long and feet wide. 	no man shall take away or marry any maiden under years of age with an inheritance against the will of her father. 	any marriage solemnized in church and consummated shall be valid regardless of any prior agreement for marriage. 	sheriffs shall not lose their office because they have not collected enough money for the exchequer, but shall have allowances sufficient to perform their duties. 	butchers, brewers, and bakers shall not conspire together to sell their victuals only at certain prices. artificers, workmen and laborers shall not conspire to work only at a certain rate or only at certain hours of the day. 	no one shall sell any woolen cloth that shrinks when it is wet. 	no one shall use a rope or device to stretch cloth for sale so to make it appear as more in quantity than it is. 	no one may sell cloth at retail unless the town where it was dressed, dyed, and pressed has placed its seal on the cloth. cloth may not be pressed with a hot press, but only with a cold press. 	only artificers using the cutting of leather, may buy and sell tanned leather and only for the purpose of converting it into made wares. 	a beggar's child above five years may be taken into service by anyone that will. 	cattle may be bought only in the open fair or market and only by a butcher or for a household, team, or dairy, but not for resale live. 	butter and cheese shall not be bought to be sold again except at retail in open shop, fair, or market. 	no man may enter a craft of cloth-making until he has been an apprentice for seven years or has married a clothiers' wife and practicing the trade for years with her and her servants sorting the wool. 	no country person shall sell wares such as linen drapery, wool drapery, hats, or groceries by retail in any incorporated town, but only in open fairs. 	for every sheep there shall be kept one milk cow because of the scarcity of cattle. 	no clothier may keep more than one wool loom in his house, because many weavers do not have enough work to support their families. no weaver may have more than two wool looms. 	no clothmaker, fuller, shearman, weaver, tailor, or shoemaker shall retain a journeyman to work by the piece for less than a three month period. every craftsman who has three apprentices shall have one journeyman. servants in agriculture and bargemen shall serve by the whole year and not by day wages. 	there shall be a sales tax of d. per pound of wool cloth goods for the crown. 	all people shall attend church on sundays to remember god's benefits and goodness to all and to give thanks for these with prayers and to pray to be given daily necessities. 	anyone fighting in church shall be excluded from the fellowship of the parish community. 	no one going from house to house to repair metal goods or sell small goods he is carrying may do this trade outside the town where he lives. 	no one may sell ale or beer without a license, because there have been too many disorders in common alehouses. offenders may be put in the town or county gaol for three days. 	only persons with yearly incomes of , s. or owning goods worth , s. may store wine in his house and only for the use of his household. 	no one may sell forged iron, calling it steel, because the edged tools and weapons made from it are useless. 	parish communities shall repair the highways for four days each year using oxen, cart, plough, shovels, and spades. 	the children of priests are declared legitimate so they may inherit their ancestor's lands. the priests may be tenants by courtesy after the death of their wives of such land and tenements that their wives happened to be seized of in fee simple or in fee tail, during the spousals. 	as of , it was felony to practice witchcraft, sorcery, enchantment, or conjuration for the purpose ) of obtaining money, or ) to consume any person in his body, members, or goods, or ) to provoke any person to unlawful love or lucre of money, or ) to declare where stolen goods be, or ) to despite christ, or ) to pull down any cross. 	the year books of case decisions ceased in . - judicial procedure - 	by royal proclamation of , only those admitted by the chancellor and two chief justices may practice as counsel or in legal pleading in any of the king's courts. also, such a person must be serjeant-at-law, reader, utter barrister, or an eight-year fellow of one of the four houses of court, except in the court of common pleas. 	doctors of the civil law may practice in the church or chancery courts. 	justices shall tax inhabitants of the county for building gaols throughout the nation, for imprisonment of felons, to be kept by the sheriffs and repaired out of the exchequer. 	piracy at sea or in river or creek or port are adjudicated in counties because of the difficulty of obtaining witnesses from the ship, who might be murdered or who are on other voyages on the sea, for adjudication by the admiral. 	piracy and murder on ships is punishable by death only after confession or proof by disinterested witnesses. 	land held by tenants in common may be partitioned by court order, because some of these tenants have cut down all the trees to take the wood and pulled down the houses to convert the material to their own use. 	persons worth s. a year in goods shall be admitted in trials of felons in corporate towns although they have no freehold of land. 	each justice of the high courts may employ one chaplain. 	the privy council took the authority of the star chamber court, which organized itself as a specialty court. also, a specific group of full-time councilors heard pleas of private suitors. 	the bishops, nobility, and justices of the peace were commanded to imprison clergy who taught papal authority. justices of the peace and sheriffs were to watch over the bishops. the justices of assize were to assess the effectiveness of the justices of the peace as well as enforce the treason statute on circuit. 	the criminal court went outside the common law to prosecute political enemies, e.g. by dispensing with a jury. 	since the nation was now peaceful, expediency was no longer needed, so judicial procedures again became lengthy and formal with records. 	the chancery court enforced the obligations known as trusts, in the name of equity and good conscience. it adopted every analogy that the common law presented. its procedure was to force the defendant to answer on oath the charges that were brought against him. all pleadings and usually testimony was put into writing. much evidence consisted of written affidavits. there was no jury. the chancery court did not record its decisions apparently because it did not see itself s bound by precedents. 	witnesses could be sworn in to state pertinent facts necessary for full understanding and adjudication of cases, because they are reliable now that there is no unlicensed livery and maintenance and because jurors no longer necessarily know all the relevant facts. 	when acting as the highest court, the house of lords was presided over by the chancellor, who sat on his prescribed place on the wool sacks. it had the following jurisdiction: trial of peers for high treason and serious felony, appeals on writs of error from courts of the common law, and impeachment. the house of lords served as judge of impeachment cases, whereas the house of commons served as fact finders. 	the leet court and sheriff's turn court have much less jurisdiction. they may dispose of presentments of trespasses and nuisances, but not felony or question of freehold. such presentments are made by a set of at least twelve men, and the presented person is amerced there and then. 	the humanist intellectual revival caused the church courts to try to eliminate contradictions with state law, for instance in debt, restitution, illegitimacy, and the age of legal majority. - - - chapter - - - - the times: - - 	queen elizabeth i was intelligent, educated, and wise about human nature. when young, she was a brilliant student and studied the bible, philosophy, literature, oratory, and greek and roman history. she wrote in english, latin, french, and italian. she read greek, including the greek testament, greek orators, and greek dramatists, at age seven, when the first professorship of greek was founded at cambridge university. learning from books was one of her highest values throughout her life. 	she read so much and was so influenced by cicero that she acquired his style of writing. her chief secretary william cecil was so guided by cicero's "offices" that he carried a copy in his pocket. cicero opined that government officials had a duty to make the safety and interest of citizens its greatest aim and to influence all their thoughts and endeavors without ever considering personal advantage. government was not to serve the interest of any one group to the prejudice or neglect of the rest, for then discord and sedition would occur. furthermore, a ruler should try to become loved and not feared, because men hated those whom they feared, and wished themdead. therefore obedience proceeding from fear could not last, whereas that which was the effect of love would last forever. an oppressor ruling by terror would be resented by the citizens, who in secret would choose a worthier person. then liberty, having been chained up, would be unleashed more fiercely than otherwise. to obtain the peoples' love, a ruler should be kind and bountiful. to obtain the peoples' trust, a ruler should be just, wise, and faithful. to demonstrate this, a ruler should be eloquent in showing the people an understanding better than theirs, the wisdom to anticipate events, and the ability to deal with adverse events. and this demonstration should be done with modesty. one cannot get the peoples' trust by vain shows, hypocritical pretenses, composed countenances, and studied forms of words. the first goal of a ruler is to take care that each individual is secured in the quiet enjoyment of his own property. the second goal is to impose taxes that are not burdensome. the third goal is to furnish the people with necessaries. the law should be enforced keeping in mind that its fundamental purpose is to keep up agreement and union among citizens. 	elizabeth cared deeply for the welfare of all citizens of whatever class. she was sensitive to public opinion and was loved by her people. she respected truth and was sincere, avoiding guile or fraud. she claimed that she had never dishonored her tongue with a falsehood to anyone. she expected that any covert manipulations by monarchs would be found out and therefore would damage their credibility. "it becometh therefor all of our rank to deal sincerely; lest if we use it not, when we do it we be hardly believed." 	she was frugal and diplomatically avoided unnecessary wars, saying that her purse was the pockets of her people. her credit reputation was so good that she could always get loans at small rates of interest from other countries. england was a small protestant nation threatened by the larger catholic nations of france and spain. when elizabeth flirted and talked of marriage with foreign princes, they laid aside any thoughts of conquering england by war, hoping to obtain it my marriage. not only did she not seek to conquer other lands, but she turned down an invitation to rule the netherlands. 	elizabeth prayed for divine guidance as in this prayer: "almighty god and king of all kings, lord of heaven and earth, by whose leave earthly princes rule over mortals, when the most prudent of kings who administered a kingdom, solomon, frankly confessed that he was not capable enough unless thou broughtst him power and help, how much less am i, thy handmaid, in my unwarlike sex and feminine nature, adequate to administer these thy kingdoms of england and of ireland, and to govern an innumerable and warlike people, or able to bear the immense magnitude of such a burden, if thou, most merciful father didst not provide for me (undeserving of a kingdom) freely and against the opinion of many men. instruct me from heaven, and give help so that i reign by thy grace, without which even the wisest among the sons of men can think nothing rightly. send therefore, o inexhaustible fount of all wisdom, from thy holy heaven and the most high throne of thy majesty, thy wisdom to be ever with me, that it may keep watch with me in governing the commonwealth, and that it may take pains, that it may teach me, thy handmaid, and may train me that i may be able to distinguish between good and evil, equity and iniquity, so as rightly to judge thy people, justly to impose deserved punishments on those who do harm, mercifully to protect the innocent, freely to encourage those who are industrious and useful to the commonwealth. and besides, that i may know what is acceptable to thee alone, vouchsafe that i wish, dare, and can perform it without paying respect to any earthly persons or things. so that when thou thyself, the just judge, who askest many and great things from those to whom many and great things are entrusted, when thou requirest an exact accounting, charge me not with badly administering my commonwealth and kingdom. but if by human thoughtlessness or infirmity thy handmaid strays from the right in some thing, absolve me of it by thy mercy, most high king and most mild father, for the sake of thy son jesus christ; and at the same time grant that after this worldly kingdom has been exacted of me, i may enjoy with thee an eternity in thy heavenly and unending kingdom, through the same jesus christ, thy son and the assessor of thy kingdom, our lord and mediator. to whom with thee and with the holy spirit, one everlasting king, immortal, invisible, only-wise god, be all honor and glory forever and ever, amen.� 	elizabeth promoted commercial speculations, which diffused a vast increase of wealth among her people. the elizabethan era was one of general prosperity. her good spirits and gayness created a happy mood in the nation. she loved dancing and madrigal music was popular. she came to dress elaborately and fancifully. her dresses were fitted not only at the waist, but along the torso by a long and pointed bodice stiffened with wood, steel, or whalebone. her skirt was held out with a petticoat with progressively larger hoops. there were two layers of skirt with the top one parted to show the bottom one. the materials used were silks, satins, velvets, and brocades. on her dress were quiltings, slashings, and embroidery. it was covered with gold ornaments, pearls, gems, and unusual stones from america. she wore decorated gloves. ladies copied her and discarded their simple over-tunics for elaborate dresses. the under-tunic became a petticoat and the over-tunic a dress. often they also wore a fan with a mirror, a ball of scent, a miniature portrait of someone dear to them, and sometimes a watch. single ladies did not wear hats, but had long, flowing hair and low cut dresses showing their bosoms. married ladies curled their hair and wore it in high masses on their heads with jewels interwoven into it. both gentlemen and ladies wore hats both indoors and outside and large, pleated collars around their necks (with the newly discovered starch), perfume, rings with stones or pearls, and high-heeled shoes. gentlemen's' tight sleeves, stiffened and fitted doublet with short skirt, and short cloak were ornamented and their silk or velvet hats flamboyant, with feathers. at their leather belts they hung pouches and perhaps a watch. they wore both rapiers [swords with cutting edges] and daggers daily as there were many quarrels. there were various artistic beard cuts and various lengths of hair, which was often curled and worn in ringlets. barbers sought to give a man a haircut that would favor his appearance, for instance a long slender beard for a round face to make it seem narrower and a broad and large cut for a lean and straight face. men now wore stuffed breeches and stockings instead of long hosen. some wore a jeweled and embroidered codpiece between their legs to emphasize their virility. both gentlemen and ladies wore silk stockings and socks over them and then boots. coats dipped in boiled linseed oil with resin served as raincoats. both men and women wore velvet or wool full length nightgowns with long sleeves and fur lining and trimming to bed, which was the custom for the next years. fashions changed every year due to the introduction of cheaper, lighter, and less durable cloths by immigrant craftsmen. when elizabeth became old, she had a wig made to match her youthful long red hair. other ladies then began wearing wigs. 	every few years, elizabeth issued a proclamation reminding people of the apparel laws and reiterating certain provisions which had been disregarded. for instance, only the royal family and dukes and marquises in mantles [cloaks] of the garter could wear the color purple. one had to be at least an earl to wear gold or silver or sable. only dukes, marquises, earls and their children, barons, and knights of the order could wear imported wool, velvet, crimson, scarlet, or blue, or certain furs., except that barons' sons, knights, or men who could dispend at least pounds yearly could wear velvet in gowns or coats, embroidery, and furs of leopards. spurs, swords, rapiers, daggers, and woodknives were restricted to knights and barons' sons or higher. a man who could dispend at least pounds per year could wear taffeta, satin, damask, or cloth made of camels' hair and silk, in his outer garments. one had to be the son and heir or the daughter of a knight or wife of said son or a man who could dispend pounds yearly or had pounds worth in goods to wear silk in one's hat, bonnet, nightcap, girdle, scabbard, or hose. yeomen, husbandmen, serving men, and craftsmen were very restricted in what they could wear. poor men wore skirted fustian tunics, loose breeches, and coarse stockings or canvas leggings. 	children wore the same type of apparel as their elders. they were given milk at meals for good growth. it was recognized that sickness could be influenced by diet and herbs. sickness was still viewed as an imperfect balance of the four humors. 	women spent much of their time doing needlework and embroidery. since so many of the women who spent their days spinning were single, unmarried women became known as "spinsters". 	there were many lifestyle possibilities in the nation: gentleman, that is one who owned land or was in a profession such as a attorney, physician, priest or who was a university graduate, government official, or a military officer; employment in agriculture, arts, sciences; employment in households and offices of noblemen and gentlemen; self-sufficient farmers with their own farm; fisherman or mariner on the sea or apprentice of such; employment by carriers of grain into cities, by market towns, or for digging, seeking, finding, getting, melting, fining, working, trying, making of any silver, tin, lead, iron, copper, stone, coal; glassmaker. 	typical wages in the country were: field-workers - d. a day, ploughmen s. a week with board, shepherd d. a week and board, his boy / d., hedgers d. a day, threshers - d. depending on the grain, thatching for five days d., master mason or carpenter or joiner d. a day and food or d. without food, a smith d. a day with food, a bricklayer / d. a day with food, a shoemaker d. a day with food. these people lived primarily on food from their own ground. 	there was typical work for each month of the year in the country: january - ditching and hedging after the frost broke, february - catch moles in the meadows, march - protect the sheep from prowling dogs, april - put up hop poles, sell bark to the tanner before the timber is felled, fell elm and ash for carts and ploughs, fell hazel for forks, fell sallow for rakes, fell horn for flails, may - weed and hire children to pick up stones from the fallow land, june - wash and shear the sheep, july - hay harvest, august - wheat harvest, september and october - gather the fruit, sell the wool from the summer shearing, stack logs for winter, buy salt fish for lent in the town and lay it up to dry, november - have the chimneys swept before winter, thresh grain in the barn, december - grind tools, repair yokes, forks, and farm implements, cover strawberry and flower beds with straw to protect them from the cold, split kindling wood with beetle and wedge, tan their leather, make leather jugs, make baskets for catching fish, and carve wood spoons, plates, and bowls. 	there was a wave of building and renovation activity in town and country. housing is now, for the first time, purely for dwelling and not for defense. houses were designed symmetrically with decorative features instead of a haphazard addition of rooms. windows were large and put on the outer walls instead of just inside the courtyard. a scarcity of timber caused proportionally more stone to be used for dwelling houses and proportionately more brick to be used for royal palaces and mansions. the rest of the house was plaster painted white interspersed with vertical, horizontal, and sloping timber, usually oak, painted black. there were locks and bolts for protection from intruders. the hall was still the main room, and usually extended up to the roof. richly carved screens separated the hall from the kitchen. the floors were stone or wood, and sometimes tile. they were often covered with rushes or plaited rush mats, on which incomers could remove the mud from their boots. some private rooms had carpets on the floor. walls were smoothly plastered or had carved wood paneling to control drafts. painted cloths replaced tapestries on walls. family portraits decorated some walls, usually in the dining room. iron stands with candles were hung from the ceiling and used on tables. plastered ceilings and a lavish use of glass made rooms lighter and cozy. broad and gracious open stairways with carved wood banisters replaced the narrow winding stone steps of a circular stairwell. most houses had several ornamented brick chimneys and clear, but uneven, glass in the windows. there were fireplaces in living rooms, dining rooms, kitchen, and bedrooms, as well as in the hall and great chamber. parlors were used for eating and sitting only, but not for sleeping. closets were rooms off bedrooms in which one could read and write on a writing table, and store one's books, papers, maps, calendar, medals, collections, rarities, and oddities. sometimes there was a study room or breakfast room as well. a gentleman used his study not only to read and to write, but to hold collections of early chronicles, charters, deeds, copied manuscripts, and coins that reflected the budding interest in antiquarianism; and to study his family genealogy, for which he had hired someone to make an elaborate diagram. he was inclined to have a few classical, religious, medical, legal, and political books there. rooms were more spacious than before and contained oak furniture such as enclosed cupboards; cabinets; buffets from which food could be served; tables, chairs and benches with backs and cushions, and sometimes with arms; lidded chests for storing clothes and linens, and occasionally chests of drawers or wardrobes, either hanging or with shelves, for clothes. chests of drawers developed from a drawer at the bottom of a wardrobe. carpeting covered tables, chests, and beds. great houses had a wardrobe chamber with a fireplace in front of which the yeoman of the wardrobe and his assistants could repair clothes and hangings. separate bedchambers replaced bed-sitting rooms. bedrooms all led out of each other. the lady's chamber was next to her lord's chamber, and her ladies' chambers were close to her chamber. but curtains on the four-poster beds with tops provided privacy and warmth. beds had elaborately carved bedsteads, sheets, and a feather cover as well as a feather mattress. often family members, servants, and friends shared the same bed for warmth or convenience. each bedroom typically had a cabinet with a mirror, e.g. of burnished metal or crystal, and comb on top. one brushed his teeth with tooth soap and a linen cloth, as physicians advised. each bedroom had a pitcher and water bowl, usually silver or pewter, for washing in the morning, and a chamber pot or a stool with a hole over a bucket for nighttime use, and also fragrant flowers to override the unpleasant odors. the chamber pots and buckets were emptied into cesspits. a large set of lodgings had attached to it latrines consisting of a small cell in which a seat with a hole was placed over a shaft which connected to a pit or a drain. the servants slept in turrets or attics. elizabeth had a room just for her bath. 	breakfast was substantial, with meat, and usually eaten in one's bedroom. the great hall, often hung around with bows, pikes, swords, and guns, was not abandoned, but the family took meals there only on rare occasions. instead they withdrew to a parlor, for domestic use, or the great chamber, for entertaining. parlors were situated on the ground floor: the family lived and relaxed there, and had informal meals in a dining parlor. 	more than medieval castles and manor houses, mansions were designed with privacy in mind. the formal or "state" rooms were on the first floor above the ground floor, usually comprising a great chamber, a withdrawing chamber, one or more bedchambers, and a long gallery. each room had carved chairs and cabinets. taking a meal in the great chamber involved the same ceremonial ritual as in the manorial great chamber dating from the s. the table was covered with a linen cloth. the lady of the house sat in a chair at the upper end of the table and was served first. people of high rank sat at her end of the table "above" the fancy silver salt cellar and pepper. people of low rank sat "below" it near the other end of the table. grace was said before the meal. noon dinner and supper were served by cupbearer, sewer, carver, and assistants. fine clear italian glass drinking vessels replaced even gold and silver goblets. food was eaten from silver dishes with silver spoons. some gentry used two-pronged forks. meats were plentiful and varied: e.g. beef, mutton, veal, lamb, kid, pork, hare, capon, red deer, fish and wild fowl as well as the traditional venison and brawn [boar]. kitchen gardens and orchards supplied apricots, almonds, gooseberries, raspberries, melons, currants, oranges, and lemons as well as the traditional apples, pears, plums, mulberries, quinces, pomegranates, figs, cherries, walnuts, chestnuts, hazel nuts, filberts, almonds, strawberries, blackberries, dewberries, blueberries, and peaches. also grown were sweet potatoes, artichokes, cabbages, turnips, broad beans, peas, pumpkins, cucumbers, radishes, carrots, celery, parsnips, onions, garlic, leeks, endive, capers, spinach, sorrel, lettuce, parsley, mustard, cress, sage, tarragon, fennel, thyme, mint, savory, rhubarb, and medicinal herbs. the well-to-do started to grow apricots, peaches, and oranges under glass. sugar was used to make sweet dishes. toothpicks made of brass or silver or merely a stiff quill were used. after the meal, some men and women were invited for conversation in a withdrawing or drawing chamber. some might take a walk in the gardens. after the upper table was served, the food was sent to the great hall to the steward and high household officers at the high table and other servants: serving men and women, bakers, brewers, cooks, pot cleaners, laundresses, shepherds, hogherds, dairy maids, falconers, huntsmen, and stable men. what was left was given to the poor at the gates of the house. great chambers were used primarily for meals, but also for music; dancing; plays; masques; playing cards, dice, backgammon, or chess; and daily prayers if there was no chapel. 	without the necessity of fortifications, the estate of a noble or gentleman could spread out to include not only a garden for the kitchen, but extensive orchards and beautiful formal gardens of flowers and scrubs, sometimes with fountains and maybe a maze of hedges. trees were planted, pruned, and grafted onto each other. 	householders had the responsibility to teach their family and servants religion and morals, and often read from the bible to them. many thought that the writers of the bible wrote down the exact words of god, so the passages of the bible should be taken literally. a noble lord made written rules with penalties for his country household, which numbered about a hundred, including family, retainers, and servants. he enforced them by fines, flogging, and threats of dismissal. the lady of the house saw that the household held together as an economic and social unit. the noble's family, retainers, guests, and the head servants, such as chaplain and children's tutor, and possibly a musician, dined together at one table. the family included step children and married sons and daughters with their spouses. young couples often lived with the parents of one of them. chandeliers of candles lit rooms. there were sandglass clocks. popular home activities included reading, conversation, gardening, and music-making. smoking tobacco from a clay pipe and taking snuff became popular with men. for amusement, one of the lord's household would take his place in managing the estate for twelve days. he was called the "lord of misrule", and mimicked his lord, and issued comic orders. clothes were washed in rivers and wells. at spring cleanings, windows were opened, every washable surface washed, and feather beds and pillows exposed to the sun. 	most dwellings were of brick and stone. only a few were of wood or mud and straw. the average house was now four rooms instead of three. yeomen might have six rooms. a weaver's house had a hall, two bedrooms, and a kitchen besides the shop. farmers might have two instead of one room. a joiner had a one-room house with a feather bed and bolster. even craftsmen, artificers and simple farmers slept on feather beds on bed frames with pillows, sheets, blankets, and coverlets. loom tapestry and painted cloth was hung to keep out the cold in their single story homes. they also had pewter spoons and plates, instead of just wood or earthenware ones. even the poorer class had glass drinking vessels, though of a coarse grade. the poor still used wooden plates and spoons. laborers had canvas sheets. richer farmers would build a chamber above the hall, replacing the open hearth with a fireplace and chimney at a wall. poorer people favored ground floor extensions, adding a kitchen or second bedchamber to their cottages. kitchens were often separate buildings to reduce the risk of fire. roasting was done on a spit and baking in irons boxes placed in the fire or in a brick oven at the side of the fireplace. sometimes dogs were used to turn a spit by continual running in a treadmill. some people lived in hovels due to the custom in many places that a person could live in a home he built on village waste land if he could build it in one night. 	yeomen farmers still worked from dawn to dusk. mixed farming began. in this, some of the arable land produced food for man and the rest produced food for sheep, cattle, pigs, and poultry. this was made possible by the introduction of clover, artificial grasses, and turnip and other root crops for the animals. since the sheep ate these crops in the field, they provided manure to maintain the fertility of the soil. this meant that many animals could be maintained throughout the winter instead of being slaughtered and salted. so salted meat and salted fish were no longer the staple food of the poorer people during the winter. farm laborers ate soup, porridge, milk, cheese, bacon, and beer or mead (depending on the district), and dark barley or rye bread, which often served as his plate. gentlemen ate wheat bread. there was a scarcity of fruits and vegetables that adversely affected the health of the affluent as well as of the poor due to the overall decline in farming. during winter, there were many red noses and coughing. farmers' wives used looms as well as spinning wheels with foot treadles. 	the value of grain and meat rose compared to wool. grain became six times its value in the previous reign. wool fell from s. d. per tod to s. so sheep farming, which had taken about % of the arable land, was supplanted somewhat by crop raising, and the rural population could be employed for agriculture. in some places, the threefold system of rotation was replaced by alternating land used for crops with that used for pasture. the necessity of manuring and the rotation of crops and grasses such as clover for enrichment of the soil were recognized. wheat, rye, barley, peas, and beans were raised. there was much appropriation of common land by individual owners by sale or force. many farms were enclosed by fences or hedges so that each holder could be independent of his neighbors. red and black currants, rhubarb, apricots, and oranges were now grown. these independent farmers could sell wool to clothiers, and butter, cheese, and meat to the towns. they also often did smithwork and ironwork, making nails, horseshoes, keys, locks, and agricultural implements to sell. a laborer could earn d. a day in winter and d. a day in summer. unfree villeinage ceased on the royal estates. but most land was still farmed in common and worked in strips without enclosure. elizabeth made several proclamations ordering the enclosure of certain enclosed land to be destroyed and the land returned to tillage. windmills now had vanes replacing manual labor to change the position of their sails when the wind direction changed. prosperous traders and farmers who owned their own land assumed local offices as established members of the community. 	the population of the nation was about five million. population expansion had allowed landlords to insist on shorter leases and higher rents, instead of having to choose between accepting a long lease and good rent or allowing their estates to pass out of cultivation. over % of the population were on the margin of subsistence. % of the population lived in the countryside and % in the london and % in the other towns. life expectancy was about years of age. over % were under the age of , while only about % were over . fluctuations in rates of population growth were traceable back to bad harvests and to epidemics and the two were still closely related to each other: "first dirth and then plague". 	most of london was confined within the city wall. there were orchards and gardens both inside and outside the walls, and fields outside. flower gardens and nurseries came into existence. no part of the city was more than a ten minute walk to the fields. some wealthy merchants had four story mansions or country houses outside the city walls. the suburbs of the city of london grew in a long line along the river; on the west side were noblemen's houses on both sides of the strand. east of the tower was a seafaring and industrial population. goldsmiths' row was replete with four story houses. a few wealthy merchants became money- lenders for interest, despite the law against usury. the mayor of london was typically a rich merchant prince. each trade occupied its own section of the town and every shop had its own signboard, for instance, hat and cap sellers, cloth sellers, grocers, butchers, cooks, taverns, and booksellers. many of the london wards were associated with a craft, such as candlewick ward, bread st. ward, vintry ward, and cordwainer ward. some wards were associated with their location in the city, such as bridge ward, tower ward, aldgate ward, queenhithe ward, and billingsgate ward. people lived at the back or on the second floor of their shops. in the back yard, they grew vegetables such as melons, carrots, turnips, cabbages, pumpkins, parsnips, and cucumbers; herbs; and kept a pig. the pigs could still wander through the streets. hyde park was the queen's hunting ground. london had a small zoo of ten animals, including a lion, tiger, lynx, and wolf. 	london was england's greatest manufacturing city. by the greatest trading companies in london ceased to be associated only with their traditional goods and were dominated by merchants whose main interest was in the cloth trade. ambitious merchants joined a livery company to become freemen of the city and for the status and social benefits of membership. the companies still made charitable endowments, had funeral feasts, cared for the welfare of guild members, and made lavish displays of pageantry. they were intimately involved with the government of the city. they supplied members for the court of aldermen, which relied on the companies to maintain the city's emergency grain stores, to assess and collect taxes, to provide loans to the crown, to control prices and markets, to provide armed men when trouble was expected, and to raise armies for the crown at times of rebellion, war, or visits from foreign monarchs. from about to , there were % involved in cloth or clothing industries such as weavers, tailors, hosiers, haberdashers, and cappers. % were leatherworkers such as skinners; tanners; those in the heavy leather crafts such as shoemakers, saddlers, and cobblers; and those in the light leather crafts such as glovers and pursers. another % worked in metals, such as the armorers, smiths, cutlers, locksmiths, and coppersmiths. % worked in the building trades. the victualing trades, such as bakers, brewers, butchers, costermongers [sold fruit and vegetables from a cart or street stand], millers, fishmongers, oystermen, and tapsters [bartender], grew from % before to % by . of london's workforce, % were involved in production; % were merchants before ; % were merchants by ; % were transport workers such as watermen, sailors, porters, coachmen, and shipwrights; and - % were professionals and officials (this number declining). life in london was lived in the open air in the streets. the merchant transacted business agreements and the attorney saw his clients in the street or at certain pillars at st. paul's church, where there was a market for all kinds of goods and services, including gentlemen's valets, groceries, spirits, books, and loans, which continued even during the daily service. some gentlemen had offices distant from their dwelling houses such as attorneys, who had a good income from trade disputes and claims to land, which often changed hands. plays and recreation also occurred in the streets, such as performances by dancers, musicians, jugglers, clowns, tumblers, magicians, and men who swallowed fire. the churches were continuously open and used by trades and peddlers, including tailors and letter-writers. water carriers carried water in wood vessels on their shoulders from the thames river or its conduits to the inhabitants three gallons at a time. a gentleman concocted an engine to convey thames water by lead pipes up into men's houses in a certain section of the city. in , a man took out a lease on one of the arches of london bridge. there he built a waterwheel from which he pumped water to residents who lived beside the bridge. soldiers, adventurers, physicians, apprentices, prostitutes, and cooks were all distinguishable by their appearances. an ordinance required apprentices to wear long blue gowns and white breeches with stockings, with no ornamentation of silk, lace, gold or silver and no jewelry. they could wear a meat knife, but not a sword or dagger. apprentices lived with their masters and worked from or a.m. to p.m. some people knitted wool caps as they walked to later sell. there were sections of town for booksellers, butchers, brewers, hosiers, shoemakers, curriers, cooks, poulters, bow makers, textwriters, pattenmakers, and horse and oxen sellers. large merchant companies had great halls for trade, such as the mercers, grocers, drapers, fishmongers, and goldsmiths. the other great guilds were the skinners, merchant tailers, salters, haberdashers, ironmongers, vintners, and clothworkers. smaller guilds were those of the bakers, weavers, fruiterers, dyers, thames watermen and lightermen, carpenters, joiners, turners, and parish clerks. the guilds insured quality by inspecting goods for a fee. 	about , mercer and merchant adventurer thomas gresham established the royal exchange as a place for merchants and brokers to meet for business purposes. it became the center of london's business life. its great bell rang at midday and at p.m. its courtyard was lined with shops that rented at s. yearly and became a popular social and recreational area. gresham formulated his law that when two kinds of money of equal denomination but unequal intrinsic value are in circulation at the same time, the one of greater value will tend to be hoarded or exported, i.e. bad money will drive good money out of circulation. 	the work-saving knitting frame was invented in by minister william lee; it knit crosswise loops using one continuous yarn and was operated by hand. the stocking knitters, who knitted by hand, put up a bitter struggle against its use and chased lee out of the country. but it did come into use. some framework stocking knitters paid frame rent for the use of their knitting frames. frame knitting became a scattered industry. 	by basement services were frequently found in town houses built on restricted sites in london. lastly, provision of water supplies and improved sanitary arrangements reflected concern with private and public health. there was virtually no drainage. in the case of town houses, some owners would go to considerable effort to solve drainage problems, often paying cash to the civic authorities, but sometimes performing some service for the town at court or at westminster, in return for unlimited water or some drainage. most affluent households, including the queen's, moved from house to house, so their cesspits could be cleaned out and the vacated buildings aired after use. a few cesspits were made air tight. otherwise, there was extensive burning of incense. refuse was emptied out of front doors and shoveled into heaps on street corners. it was then dumped into the thames or along the highways leading out of town. people put on perfume to avoid the stench. by , the first toilet and water closet, where water flushed away the waste, was built. this provided a clean toilet area all year round. but these toilets were not much used because of sewer smells coming from them. the sky above london was darkened somewhat by the burning of coal in houses. 	taverns served meals as well as ale. they were popular meeting places for both men and women of all backgrounds to met their friends. men went to taverns for camaraderie and to conduct business. women usually went to taverns with each other. two taverns in particular were popular with the intelligentsia. music was usually played in the background and games were sometimes played. beer made with hops and malt was introduced and soon there were beer drinking contests. drunkenness became a problem. 	at night, the gates of the city were closed and citizens were expected to hang out lanterns. the constable and his watchmen carried lanterns and patrolled the streets asking anyone they saw why they were out so late at night. crime was rampant in the streets and criminals were executed near to the crime scene. 	there were a few horse-drawn coaches with leather flaps or curtains in the unglazed windows to keep out the weather. the main thoroughfare in london was still the thames river. nobles, peers, and dignitaries living on the thames had their own boats and landings. also at the banks, merchants of all nations had landing places where ships unloaded, warehouses, and cellars for goods and merchandise. swans swam in the clear bright water. watermen rowed people across the thames for a fee. in southwark were theaters, outlaws, cutpurses, prostitutes, and prisons. in southwark became the th and last ward of london. in the summer, people ate supper outside in public. 	as of old times, brokers approved by the mayor and aldermen made contracts with merchants concerning their wares. some contracts included holding wares as security. some craftsmen and manual workers extended this idea to used garments and household articles, which they took as pawns, or security for money loaned. this began pawn brokerage, which was lucrative. the problem was that many of the items pawned had been stolen. 	elizabeth had good judgment in selecting her ministers and advisors for her privy council, which was organized like henry viii's privy council. the queen's privy council of about twelve ministers handled foreign affairs, drafted official communiques, issued proclamations, supervised the county offices: the justices of the peace, chief constables, sheriffs, lord lieutenants, and the county militias. it fixed wages and prices in london, advised justices of the peace on wages elsewhere, and controlled exports of grain to keep prices down and supplies ample. it banned the eating of meat two days a week so that the fishing industry and port towns would prosper. when grain was scarce in , elizabeth made a proclamation against those ingrossers, forestallers, and ingraters of grain who increased its price by spreading false rumors that it was scarce because much of it was being exported, which was forbidden. there were labor strikes in some towns for higher wages after periods of inflation. in , london authorities rounded up the sturdy vagabonds and set them to work cleaning out the city ditches for d. per day. 	elizabeth did not allow any gentleman to live in london purely for pleasure, but sent those not employed by the court back to their country manors to take care of and feed the poor of their parishes. her proclamation stated that "sundry persons of ability that had intended to save their charges by living privately in london or towns corporate, thereby leaving their hospitality and the relief of their poor neighbors, are charged not to break up their households; and all others that have of late time broken up their households to return to their houses again without delay." she never issued a license for more than retainers. she was partially successful in stopping justices of the peace and sheriffs from wearing the liveries of great men. she continued the policy of henry vii to replace the rule of force by the rule of law. service of the crown and influence at court became a better route to power and fortune than individual factions based on local power structures. at the lowest level, bribery became more effective than bullying. the qualities of the courtier, such as wit, and the lawyer became more fashionable than the qualities of the soldier. 	most of the men in elizabeth's court had attended a university, such as francis bacon, son of the lord keeper, who became a writer, attorney, member of the commons, and experimental philosopher; and walter ralegh, the writer and sea fighter, who had a humble origin. many wives and daughters of privy councilors attended the queen in her privy chamber. most of the knights or gentlemen of the royal household were also members of parliament or justices of the peace for certain districts in the counties. instead of the office of chancellor, which was the highest legal office, elizabeth appointed a man of common birth to be lord keeper of the great seal; she never made a lord keeper a peer. elizabeth encouraged her lords to frankly make known their views to her, in public or in private, before she decided on a course of action. she had affectionate nicknames for her closest courtiers, and liked to make puns. the rooms of the queen were arranged as they had been under henry viii: the great hall was the main dining room where the servants ate and which elizabeth attended on high days and holidays; the great chamber was the main reception room, where her gentlemen and yeomen of the guard waited; the presence chamber was where she received important visitors; beyond lay her privy chamber and her bedchamber. she ate her meals in the privy chamber attended only by her ladies. she believed that a light supper was conducive to good health. the lord chamberlain attended the queen's person and managed her privy chamber and her well-born grooms and yeomen and ladies-in-waiting. the lord steward managed the domestic servants below the stairs, from the lord treasurer to the cooks and grooms of the stable. the court did not travel as much as in the past, but became associated with london. elizabeth took her entire court on summer visits to the country houses of leading nobility and gentry. courtiers adopted symbolic "devices" as statements of their reaction to life or events, e.g. a cupid firing arrows at a unicorn signified chastity under attack by sexual desire. they carried them enameled on jewels, had them painted in the background of their portraits, and sometimes had them expressed on furniture, plate, buildings, or food. 	the authority of the queen was the authority of the state. elizabeth's experience led her to believe that it was most important for a monarch to have justice, temperance, magnanimity, and judgment. she claimed that she never set one person before another, but upon just cause, and had never preferred anyone to office for the preferrer's sake, but only when she believed the person worthy and fit for the office. she never blamed those who did their best and never discharged anyone form office except for cause. further, she had never been partial or prejudiced nor had listened to any person contrary to law to pervert her verdicts. she never credited a tale that was first told to her and never corrupted her judgment with a censure before she had heard the cause. she did not think that the glory of the title of monarch made all she did lawful. to her, clemency was as eminent in supreme authority as justice and severity. 	secular education and especially the profession of law was now the route for an able but poor person to rise to power, rather than as formerly through military service or through the church. 	the first stage of education was primary education, which was devoted to learning to read and write in english. this was carried out at endowed schools or at home by one's mother or a tutor. the children of the gentry were usually taught in their homes by private teachers of small classes. many of the poor became literate enough to read the bible and to write letters. however, most agricultural workers and laborers remained illiterate. they signed with an "x", which represented the christian cross and signified its solemnity. children of the poor were expected to work from the age of or . 	the next stage of education was grammar [secondary] school or a private tutor. a student was taught rhetoric (e.g. poetry, history, precepts of rhetoric, and classical oratory), some logic, and latin and greek grammar. english grammar was learned through latin grammar and english style through translation from latin. as a result, they wrote english in a latin style. literary criticism was learned through rhetoric. there were disputations on philosophical questions such as how many angels could sit on a pin's point, and at some schools, orations. the students sat in groups around the hall for their lessons. the boys and some girls were also taught hawking, hunting and archery. there were no playgrounds. the grammar student and the undergraduate were tested for proficiency by written themes and oral disputations, both in latin. the middle classes from the squire to the petty tradesman were brought into contact with the works of the best greek and roman writers. the best schools and many others had the students read cicero - the "de officiis", the epistles and orations; and some of ovid, terence, sallust, virgil, some medieval latin works, the "distichs" of cato, and sometimes erasmus and sir thomas more. the students also had to repeat prayers, recite the lord's prayer and the ten commandments, and to memorize catechisms. because the students came from the various social classes such as gentlemen, parsons, yeomen, mercers, and masons, they learned to be on friendly and natural terms with other classes. a typical school-day lasted from : am to : pm. there were so many grammar schools founded and financed by merchants and guilds such as the mercers and fishmongers that every incorporated town had at least one. grammar schools were headed by schoolmasters, who were licensed by the bishop and paid by the town. flogging with a birch rod was used for discipline. however, the grammar schools did not become the breeding grounds for humanist ideas because the sovereigns were faced with religious atomism and political unrest, so used the grammar schools to maintain public order and achieve political and religious conformity. 	many grammar schools had preparatory classes called "petties" for boys and girls who could not read and write to learn to do so. the girls did not usually stay beyond the age of nine. this was done by a schoolmaster's assistant, a parish clerk, or some older boys. 	some founders of grammar schools linked their schools with particular colleges in the universities following the example of winchester being associated with new college, oxford; and eton with king's college, cambridge. the new charter of westminster in associated the school with christ church, oxford and trinity college, cambridge. 	the government of oxford university, which had been catholic, was taken from the resident teachers and put into the hands of the vice-chancellor, doctors, heads of colleges, and proctors. cambridge already had a strong reformed element from erasmus' influence. oxford university and cambridge university were incorporated to have a perpetual existence for the virtuous education of youth and maintenance of good literature. the chancellors, masters, and scholars had a common seal. oxford was authorized to and did acquire its own printing press. undergraduate students entered about age and resided in rooms in colleges rather than in scattered lodgings. the graduate fellows of the college who were m.a.s of under three years standing had the responsibility, instead of the university, for teaching the undergraduates. this led many to regard their fellowship as a position for life rather than until they completed their post-graduate studies. but they were still required to resign on marrying or taking up an ecclesiastical benefice. the undergraduates were fee-paying members of the college or poor scholars. some of the fee-paying members or gentlemen-commoners or fellow-commoners were the sons of the nobility and gentry and even shared the fellows' table. the undergraduate students were required to have a particular tutors, who were responsible for their moral behavior as well as their academic studies. it was through the tutors that modern studies fit for the education of a renaissance gentleman became the norm. those students not seeking a degree could devise their own courses of study with their tutors� permission. less than about % stayed long enough to get a degree. many students who were working on the seven year program for a master's degree went out of residence at college after the four year's "bachelor" course. students had text books to read rather than simply listening to a teacher read books to them. 	in addition to the lecturing of the m.a.s and the endowed university lectureships, the university held exercises every monday, wednesday, and friday in which the student was meant through disputation, to apply the formal precepts in logic and rhetoric to the practical business of public speaking and debate. final examinations were still by disputation. the students came to learn to read latin easily. students acted in latin plays. if a student went to a tavern, he could be flogged. for too elaborate clothing, he could be fined. fines for absence from class were imposed. however, from this time until , a young man's university days were regarded as a period for the "sowing of wild oats". 	all students had to reside in a college or hall, subscribe to the articles of the university, the queen's supremacy, and the prayer book. meals were taken together in the college halls. the universities were divided into three tables: a fellows' table of earls, barons, gentlemen, and doctors; a second table of masters of arts, bachelors, and eminent citizens, and a third table of people of low condition. professors, doctors, masters of arts and students were all distinguishable by their gowns. 	undergraduate education was considered to be for the purpose of good living as well as good learning. it was to affect the body, mind, manners, sentiment, and business, instead of just leading to becoming a better disputant. the emphasis on manners came mostly from an italian influence. the university curriculum included latin and greek languages and was for four years. the student spent at least one year on logic (syllogizing, induction, deduction, fallacies, and the application of logic to other studies), at least one year on rhetoric, and at least one year on philosophy. the latter included physics, metaphysics, history, law, moral and political philosophy, modern languages, and ethics (domestic principles of government, military history, diplomatic history, and public principles of government), and mathematics (arithmetic, geometry, algebra, music, optics, astronomy). the astronomy taught was that of ptolemy, whose view was that the celestial bodies revolved around a spherical earth, on which he had laid out lines of longitude and latitude. there were lectures on greek and latin literature, including aristotle, plato, and cicero. there were no courses on english history in the universities. 	about , the curriculum was changed to two terms of grammar, four terms of rhetoric, five terms of dialectic (examining ideas and opinions logically, e.g. ascertaining truth by analyzing words in their context and equivocations), three terms of arithmetic, and two terms of music. there were now negative numbers, irrational numbers such as square roots of non-integers, and imaginary numbers such as square roots of negative numbers. the circumference and area of a circle could be computed from its radius, and the pythagorean theorem related the three sides of a right triangle. also available were astrology, alchemy (making various substances such as acids and alcohols), cultivation of gardens, and breeding of stock, especially dogs and horses. astronomy, geometry, natural and moral philosophy, and metaphysics were necessary for a master's degree. the university libraries of theological manuscripts in latin were supplemented with many non-religious books. 	there were graduate studies in theology, medicine, music, and law, which was a merging of civil and canon law together with preparatory work for studying common law at the inns of court in london. 	in london, legal training was given at the four inns of court. students were called to dinner by a horn. only young gentry were admitted there. a year's residence there after university gave a gentleman's son enough law to decide disputes of tenants on family estates or to act as justice of the peace in his home county. a full legal education gave him the ability to handle all family legal matters, including property matters. many later became justices of the peace or members of parliament. students spent two years in the clerks' commons, and two in the masters' commons. besides reading textbooks in latin, the students observed at court and did work for practicing attorneys. after about four more years' apprenticeship, a student could be called to the outer bar. there was a real bar of iron or wood separating the justices from the attorneys and litigants. as "utter barrister" or attorney, he would swear to "do no falsehood in the court, increase no fees but be contented with the old fees accustomed, delay no man for lucre or malice, but use myself in the office of an attorney within the court according to my learning and discretion, so help me god, amen". students often also studied and attended lectures on astronomy, geography, history, mathematics, theology, music, navigation, foreign languages, and lectures on anatomy and medicine sponsored by the college of physicians. a tour of the continent became a part of every gentleman's education. after about eight years' experience, attorneys could become readers, who gave lecturess; or benchers, who made the rules. benchers, who were elected by other benchers, were entrusted with the government of their inn of court, and usually were king's counsel. five to ten years later, a few of these were picked by the queen for serjeant at law, and therefore eligible to plead at the bar of common pleas. justices were chosen from the serjeants at law. 	gresham left the royal exchange to the city and the mercer's company on condition that they use some of its profits to appoint and pay seven lecturers in law, rhetoric, divinity, music, physics, geometry, and astronomy to teach at his mansion, which was called gresham college. they were installed in according to his will. their lectures were free, open to all, and often in english. they embraced mathematics and new scientific ideas and emphasized their practical applications. a tradition of research and teaching was established in mathematics and astronomy. there were language schools teaching french, italian, and spanish to the aspiring merchant and to gentlemen's sons and daughters. 	many people kept diaries. letter writing was frequent at court. most forms of english literature were now available in print. many ladies read aloud to each other in reading circles and to their households. some wrote poetry and did translations. correctness of spelling was beginning to be developed. printers tended to standardize it. there was much reading of romances, jest books, histories, plays, prayer collections, and encyclopedias, as well as the bible. in schools and gentry households, favorite reading was edmund spenser's "faerie queen" about moral virtues and the faults and errors which beset them; erasmus' new testament, "paraphrases", "colloquies", and "adages"; sir thomas north's edition of plutarch's "lives of the noble grecians and romans"; elyot's "the book named the governor"; and hoby's translation of "the courtier". gentlemen read books on the ideals of gentlemanly conduct, such as "institucion of a gentleman" ( ), and laurence humphrey's "the nobles: or of nobilites". francis bacon's "essays or counsels civil and moral" were popular for their wisdom. in them he commented on many subjects from marriage to atheism. he cautioned against unworthy authority, mass opinion, custom, and ostentation of apparent wisdom. he urged the use of words with their correct meaning. 	at a more popular level were caxton's "the golden legend", baldwin's "mirror for magistrates", foxe's "book of martyrs" about english protestant who suffered at the stake, sensational stories and pamphlets, printed sermons (including those of switzerland's calvin), chronicles, travel books, almanacs, herbals, and medical works. english fiction began and was read. there were some books for children. books were copyrighted, although non-gentlemen writers needed a patron. at the lowest level of literacy were ballads. next to sermons, the printing press was kept busiest with rhymed ballads about current events. printed broadsheets on political issues could be distributed quickly. in london, news was brought to the governor of the news staple, who classified it as authentic, apocryphal, barber's news, tailor's news, etc. and stamped it. books were also censored for matter against the state church. this was carried out through the stationers' company. this company was now, by charter, the official authority over the entire book trade, with almost sole rights of printing. (schools had rights of printing). it could burn other books and imprison their printers. 	italian business techniques were set forth in textbooks for merchants, using italian terms of business: debit (debito), credit (credito), inventory (inventorio), journal (giornal), and cash (cassa). the arithmetic of accounting operations, including multiplication, was described in "an introduction for to lerne to reckonwith the penne or counters" in . accounting advice was extended to farmers as well as merchants in the "the pathway to perfectness in the accomptes of debitor and creditor" by james peele, a salter of london. it repeated the age-old maxim: ...receive before you write, and write before you pay, so shall no part of your accompt in any wise decay. the "marchants avizo" by johne browne, merchant of bristol, gave information on foreign currencies and keeping of accounts, and included specimens of various business documents such as insurance policies, and bills of exchange. it also advised: take heed of using a false balance or measure...covet not over familiarity amongst men it maketh thee spend much loss of time. be not hasty in giving credit to every man, but take heed to a man that is full of words, that hath red eyes, that goeth much to law, and that is suspected to live unchaste ... when thou promiseth anything be not stuck to perform it, for he that giveth quickly giveth double ... fear god...know thy prince...love thy parents ...give reverence to thy betters ...be courteous and lowly to all men... be not wise in thine own conceit. the old prohibitions of the now declining canon law were still observed. that is, one should not seek wealth for its own sake or beyond what was requisite for a livelihood in one's station, exploit a customer's difficulties to extract an extravagant price, charge excessive interest, or engross to "corner the market". 	the printing press had made possible the methodizing of knowledge and its dissemination to a lay public. knowledge associated with the various professions, occupations, and trades was no longer secret or guarded as a mystery, to be passed on only to a chosen few. the sharing of knowledge was to benefit the community at large. reading became an out-of-school activity, for instruction as well as for pleasure. 	in , graphite was discovered in england, and gave rise to the pencil. surveying accuracy was improved with the new theodolite, which determined directions and measured angles and used a telescope that pivoted horizontally and vertically. scientists had the use of an air thermometer, in which a column of air in a glass tube sitting in a dish of water contracted or expanded with changes in the temperature, causing the water to move up or down the tube. 	william shakespeare, a glovemaker's son, wrote plays about historical events and plays which portrayed various human personalities and their interactions with each other. they were enjoyed by all classes of people. his histories were especially popular. the queen and various earls each employed players and actors, who went on tour as a troupe and performed on a round open-air stage, with people standing around to watch. in london, theaters such as the globe were built specifically for the performance of plays, which before had been performed at inns. the audience applauded and hissed. there were costumes, but no sets. ordinary admission was d. before being performed, a play had to be licensed by the master of the revels to make sure that there was nothing detrimental to the peace and public order. elizabeth issued a proclamation forbidding unlicensed interludes or plays, especially concerning religion or government policy on pain of imprisonment for at least fourteen days. the common people still went to morality plays, but also to plays in which historical personages were portrayed, such as richard ii, henry iv, and henry v. some plays were on contemporary issues. musicians played together as orchestras. music with singing was a popular pastime after supper; everyone was expected to participate. dancing was popular with all classes. gentlemen played cards, dice, chess, billiards, and tennis. they fenced and had games on horseback. their deer-hunting diminished as forests were cut down for agriculture and the deer were viewed as an enemy eating crops. falconry diminished as hedges and enclosures displaced the broad expanses of land. 	country people enjoyed music, dancing, pantomime shows with masks, hurling, running, swimming, leap frog, blind man's buff, shovelboard played with the hands, and football between villages with the goal to get the ball into one's own village. football and shin-kicking matches often resulted in injuries. they bought ballads from traveling peddlers. early morning dew gathered in may and early june was thought to have special curative powers. there were many tales involving fairies, witches, devils, ghosts, evil spirits, angels, and monsters which were enjoyed by adults as well as children. many people still believed in charms, curses, divination, omens, fate, and advice from astrologers. the ghosts of the earth walked the earth, usually because of some foul play to be disclosed, wrong to be set right, to warn those dear to them of peril, or to watch over hidden treasure. good witches cured and healed. fairies blessed homes, rewarded minor virtues, and punished mild wrongdoing. when fairies were unhappy, the weather was bad. there were parties for children. 	the merry guild feast was no longer a feature of village life. there were fewer holydays and festivals. the most prosperous period of the laborer was closing. an agricultural laborer's yearly wage was about s., but his cost of living, which now included house rent, was about s. a year. in , daily wages in the summer for an agricultural laborer were about d. and for an artisan d. in in the county of rutland, daily wages for laborers were d. in summer and d. in winter; and for artisans were d. in summer and d. in winter. unemployment was widespread. 	there were endowed hospitals in london for the sick and infirm. there were others for orphans, for derelict children, and for the destitute. they worked at jobs in the hospital according to their abilities. there was also a house of correction for discipline of the idle and vicious by productive work. elizabeth continued the practice of touching people to cure scrofula, although she could not bring herself to fully believe in the reality of such cures, contrary to her chaplain and her physician. 	in the towns, shop shutters were let down to form a counter at the front of the shop. goods were made and/or stored inside the shop. towns held a market once a week. fairs occurred once or twice a year. at given times in the towns, everyone was to throw buckets of water onto the street to cleanse it. during epidemics in towns, there was quarantine of those affected to stay in their houses unless going out on business. their houses were marked and they had to carry a white rod when outside. the quarantine of a person lasted for forty days. the straw in his house was burned and his clothes treated. people who died had to be buried under six feet of ground. there was an outbreak of plague in london roughly every ten years. 	there was a pity for the distressed that resulted in towns voting money for a people of a village that had burned down or been decimated by the plague. 	communities were taxed for the upkeep and relief of the prisoners in the gaols in their communities. 	queen elizabeth was puzzling over the proper relationship between the crown and the church when richard hooker, a humble scholar, theologian, and clergyman, attempted to find a justification in reason for the establishment of the church of england as an official part of the governing apparatus of the nation. his thinking was a turning point from the medieval notion that god ordered society, including the designation of its monarch and its natural laws, and the belief in a divine structure with a great chain of being, beginning with god and working down through the hierarchy of angels and saints to men, beasts, and vegetables, which structure fostered order in society. hooker restated the concept of aristotle that the purpose of society is to enable men to live well. he wrote that although the monarch was head of state and head of religion, the highest authority in civil affairs was parliament, and in religion, the convocation. the monarch had to maintain divine law, but could not make it. from this later came the idea that the state derives its authority from the will of the people and the consent of the governed. 	protestant women had more freedom in marriage and were allowed to participate in more church activities compared to catholic women, but they were not generally allowed to become pastors. due to sensitivities on the part of both catholics and protestants about a female being the head of the church, elizabeth was given the title of "supreme governor" of the church instead of "supreme head". elizabeth was not doctrinaire in religious matters, but pragmatic. she always looked for ways to accommodate all views on what religious aspects to adopt or decline. images, relics, pilgrimages, and rosaries were discouraged. but the catholic practice of kneeling at prayer, and bowing and doffing caps at the name of jesus were retained. also retained was the place of the altar or communion table at the east end of churches, special communion wafers instead of common bread, and elaborate clergy vestments. the communion prayer contained words expressing both the catholic view that the wafer and wine contained the real presence of the body and blood of christ, and the protestant view that they were commemorative only. communion was celebrated only at easter and other great festivals. church services included a sermon and were in accordance with a reformed prayer book and in english, as was the bible. care was even taken not to use words that would offend the scots, lutherans, calvinists, or huguenots. people could hold what religious beliefs they would, even atheism, as long as they maintained an outward conformity. attendance at state church services on sunday mornings and evenings and holydays was enforced by a fine of d. imposed by the church wardens. babies were to be baptized before they were one month old or the parents would be punished. 	the new religion had to be protected. members of the house of commons, lawyers, schoolmasters were to take the oath of supremacy or be imprisoned and make a forfeiture; a second refusal brought death. when numerous anabaptists came from the continent to live in the port towns, the queen issued a proclamation ordering them to leave the realm because their pernicious opinions could corrupt the church. the new church still accepted the theory of the devil causing storms, but opposed ringing the holy church bells to attempt to drive him away. the sins of people were also thought to cause storms, and also plagues. 	in , the church of england wrote down its christian protestant beliefs in thirty-nine articles of religion, which specifically excluded certain catholic beliefs. they were incorporated into statute in establishing them as the tenets of the official religion of england. the first eighteen endorsed the ideas of one god, christ as the son of god who was sacrificed for all the sins of men, the resurrection of christ from the dead and ascension into heaven, the holy ghost proceeding from the father and the son, the books of the bible, the original sin of adam and his offspring, justification of man by faith in christ rather than by good works, goods works as the inspired fruit and proof of faith in christ, christ in the flesh as like man except for the absence of sin, the chance for sinners who have been baptised to be forgiven if they truly repent and amend their lives, the predestination of some to be brought by christ to eternal salvation and their minds to be drawn up to high and heavenly things, and salvation only by the name of christ and not by a sect. other tenets described the proper functions of the church, distinguishing them from roman catholic practice. specifically, the church was not to expound one place of scripture so that it was inconsistent with another place of scripture. because man can err, the church was not to ordain or enforce anything to be believed for necessity of salvation. explicitly renounced were the romish doctrine concerning purgatory, pardons, worshipping, adoration of images or relics, invocation of saints, and the use in church of any language, such as latin, not understood by the people. only the sacraments of baptism and the lord's supper were recognized. the lord's supper was to be a sign of the love that christians ought to have among themselves and a sacrament of redemption by christ's death. the wine in the cup of blessing as well as the bread of the lord's supper was to be taken by lay- people and to be a partaking of christ; there was no romish mass. excommunication was limited to those who openly denounced the church. anyone openly breaking the traditions or ceremonies of the church which were approved by common authority were to be rebuked. elizabeth told the bishops that she wished certain homilies to be read in church, which encouraged good works such as fasting, prayer, alms-giving, christian behavior, repentance, and which discouraged idolatry, gluttony, drunkenness, excess of apparel, idleness, rebellion, and wife-beating, however provoked. she considered homilies more instructive and learned than ministers' sermons, which were often influenced by various gentlemen and were inconsistent with each other. consecration of bishops and ministers was regulated. they were allowed to marry. the standard prayer was designated thus: "our father who art in heaven, hallowed be thy name. thy kingdom come. thy will be done, on earth as it is in heaven. give us this day our daily bread, and forgive us our offenses as we forgive those who have offended against us. and lead us not into temptation, but deliver us from evil. for thine is the kingdom, the power, and the glory forever and ever, amen." 	there was difficulty persuading educated and moral men to be church ministers, even though elizabeth expressed to the bishops her preference for ministers who were honest and wise instead of learned in religious matters. the bible was read at home and familiar to everyone. this led to the growth of the puritan movement. the puritans believed in the right of the individual christian to interpret the scriptures for himself by spiritual illumination. they opposed the mystical interpretation of the communion service. the puritans complained that the church exerted insufficient control over the morals of the congregation. their ideas of morality were very strict and even plays were thought to be immoral. the independent puritans were those protestants who had fled from mary's catholic reign to the continent, where they were persuaded to the ideas of john calvin of geneva. he stressed the old idea of predestination in the salvation of souls, which had in the past been accepted by nearly all english christian leaders, thinkers, and teachers, but not stressed. the act of conversion was a common experience among the early puritans. the concomitant hatred of past sins and love of god which was felt in thankfulness for mercy were proof of selection for salvation. the good works that followed were merely an obligation showing that one's faith was real, but not a way to salvation. 	the puritans also accepted calvin's idea of independent church government. they therefore thought that ministers and lay elders of each parish should regulate religious affairs and that the bishops, who were "petty popes", should be reduced to an equality with the rest of the clergy, since they did not rule by divine right. the office of archbishop should be eliminated and the head of state should not necessarily be governor of the church. these ideas were widely disseminated in books and pamphlets. the puritans disrupted the established church's sunday services, tearing the surplice off the minister's back and the wafers and wine from the altar rail. the puritans arranged "lectures" on sunday afternoons and on weekdays. these were given gratuitously or funded by boroughs. they were strict about not working on the sabbath, which day they gave to spiritual exercises, meditations, and works of mercy. the only work allowed was preparing meals for themselves, caring for their animals, and milking the cows. they enforced a strict moral discipline on themselves. the puritans formed a party in the house of commons. 	the puritan movement included william brewster, an assistant to a court official who was disciplined for delivering, upon pressure from the council, the queen's signed execution order for mary of scotland after the queen had told him to hold it until she directed otherwise. after exhausting every other alternative, the queen had reluctantly agreed with her privy council on the execution in of mary, queen of scots, who had been involved in a plot to assassinate her and claim the throne of england. elizabeth�s council had persuaded her that it was impossible for her to live in safety otherwise. 	the debased coinage was replaced by a recoinage of newly minted coins with a true silver weight. 	goldsmiths, who also worked silver, often acted as guardians of clients' wealth. they began to borrow at interest at one rate in order to lend out to traders at a higher rate. this began banking. 	patents were begun to encourage the new merchant lords to develop local manufactures or to expand import and export trade. patents were for a new manufacture or an improved older one and determined the wages of its trades. there was chartering of merchant companies and granting of exclusive rights to new industries as monopolies. some monopolies or licenses were patents or copyrights of inventors. others established trading companies for trade to certain foreign lands and supporting consular services. people holding monopolies were accountable to the government. there were monopolies on certain smoked fish, fish oil, seal oil, oil of blubber, vinegar, salt, currants, aniseed, juniper berry liquor, bottles, glasses, brushes, pots, bags, cloth, starch, steel, tin, iron, cards, horn, ox shinbones, ashes, leather pieces, earth coal, calamite stone, powder, saltpeter, and lead manufacturing by-products. 	for far-flung enterprises and those where special arrangements with foreign countries was required, there was sharing of stock of companies, usually by merchants of the same type of goods. in joint-stock companies each member took a certain number of shares and all the selling of the goods of each merchant was carried on by the officials of the company. the device of joint stock might take the form of a fully incorporated body or of a less formal and unincorporated syndicate. the greatest joint-stock company was east india company, chartered in to trade there in competition with the dutch east india company. it was given a fifteen year monopoly on trade east of the southern tip of africa. unlike the muscovy company, and merchants of the staple, individual members could not trade on their own account, but only through the corporate body on its voyages. each particular voyage was regulated and assisted by the crown and privy council, for instance when further subscriptions were needed, or when carpenters were needed to be pressed into service for fitting out ships, or to deal with an unsuccessful captain. its charter retained many of the aspects of the medieval trade guild: power to purchase lands, to sue and be sued, to make by-laws, and to punish offenders by fine or imprisonment. admission was by purchase of a share in a voyage, redemption, presentation, patrimony (adult sons of members), and apprenticeship. purchase of a share in a voyage was the most common method. a share for the first ship cost one hundred pounds. cash payments for less than the price of a share could be invested for ultimate redemption. occasionally presentation or a faculty "for the making of a freeman" was granted to some nobleman or powerful member. members' liability was limited to their individual subscriptions. each voyage had ) a royal commission authorizing the company to undertake the expedition and vesting in its commanders powers for punishing offenses during the voyage, and quenching any mutiny, quarrels, or dissension that might arise; ) a code of instructions from the company to the admiral and to commanders of ships setting forth in great detail the scope and objects of the voyage together with minute regulations for its conduct and trade; ) authorization for coinage of money or export of specie (gold or silver); and ) letters missive from the sovereign to foreign rulers at whose ports the ships were to trade. the first voyage brought back spices that were sold at auction in london for ten times their price in the indies and brought to shareholders a profit equivalent to / % yearly for the ten years when the going interest rate was % a year. 	town government was often controlled by a few merchant wholesalers. the entire trade of a town might be controlled by its drapers or by a company of the merchant adventurers of london. the charter of the latter as of allowed a common seal, perpetual existence, liberty to purchase lands, and liberty to exercise their government in any part of the nation. it was controlled by a group of rich londoners, no more than , who owned the bulk of the cloth exported. there were policies of insurance given by groups of people for losses of ships and their goods. marine insurance was regulated. 	new companies were incorporated for many trades. they were associations of employers rather than the old guilds which were associations of actual workers. the ostensible reason was the supervision of the quality of the wares produced in that trade, though shoemakers, haberdashers, saddlers, and curriers exercised close supervision over these wares.companies paid heavily for their patents or charters. 	there was no sharp line between craftsman and shopkeeper or between shopkeeper and wholesale merchant. in london, an enterprising citizen could pass freely from one occupation to another. borrowing money for a new enterprise was common. industrial suburbs grew up around london and some towns became known as specialists in certain industries. the building crafts in the towns often joined together into one company, e.g. wrights, carpenters, slaters, and sawyers, or joiners, turners, carvers, bricklayers, tilers, wallers, plasterers, and paviors. these companies included small contractors, independent masters, and journeymen. the master craftsman often was a tradesman as well, who supplied timber, bricks, or lime for the building being constructed. the company of painters was chartered with a provision prohibiting painting by persons not apprenticed for seven years. 	the prosperous merchants began to form a capitalistic class as capitalism grew. competition for renting farm land, previously unknown, caused these rents to rise. the price of wheat rose to an average of s. per quarter, thereby encouraging tillage once more. there was steady inflation. 	with enclosure of agricultural land there could be more innovation and more efficiency, e.g. the time for sowing could be chosen. it was easier to prevent over-grazing and half-starved animals as a result. the complications of the open system with its endless quarrels and lawsuits were avoided. now noblemen talked about manure and drainage, rotation of crops, clover, and turnips instead of hunting, horses, and dogs. the breed of horses and cattle was improved. there were specializations such as the hunting horse and the coach horse. by royal proclamation of , there were requirements for the keeping of certain horses. for instance, everyone with lands of at least , pounds had to keep six horses or geldings able for demi-lances [rider bearing a light lance] and ten horses or geldings for light horsemen [rode to battle, but fought on foot]. one with under pounds but over marks yearly had to keep one gelding for a light horseman. dogs had been bred into various types of hounds for hunting, water and land spaniels for falconry, and other dogs as house dogs or toy dogs. there were no longer any wild boar or wild cattle. the turkey joined the cocks, hens, geese, ducks, pigeons, and peacocks in the farmyard. manure and dressings were used to fertilize the soil. hay became a major crop because it could be grown on grazing lands and required little care. 	there are new and bigger industries such as glassware, iron, brasswares, alum and coppers, gunpowder, paper, coal, and sugar. the coal trade was given a monopoly. coal was used for fuel as well as wood, which was becoming scarce. iron smelters increasingly used coal instead of charcoal, which was limited. iron was used for firebacks, pots, and boilers. good quality steel was first produced in with the help of german craftsmen, and a slitting mill was opened in . small metal goods, especially cutlery, were made, as well as nails, bolts, hinges, locks, ploughing and harrowing equipment, rakes, pitch forks, shovels, spades, and sickles. lead was used for windows and roofs. copper and brass were used to make pots and pans. pewter was used for plates, drinking vessels, and candlesticks. competition was the mainspring of trade and therefore of town life. 	the mode of travel of the gentry was riding horses, but most people traveled by walking. people carried passes for travel that certified they were of good conduct and not a vagrant or sturdy rogue. bands of roving vagabonds terrorized the countryside. after a land survey completed in there arose travel books with maps, itineraries, and mileage between towns in england and wales. also, the queen sent her official mail by four royal postal routes along high roads from london to various corners of the nation. horses are posted along the way for the mail-deliverer's use. however, private mail still goes by packman or common carrier. the nation's inland trade developed a lot. there were many more wayfaring traders operating from town inns. in , the first canal was built with locks at exeter. more locks and canals facilitated river travel. at london bridge, waterwheels and pumps were installed. 	new sea navigation techniques improved voyages. seamen learned to fix their positions, using an astrolabe or quadrant to take the altitude of the sun and stars and to reckon by the north star. they used a nocturnal, which was read by touch, to help keep time at night by taking the altitude of the stars. they calculated tides. to measure distances, they invented the traverse board, which was bored with holes upon lines, showing the points of the compass; by means of pegs, the steersman kept an account of the course steered. a log tied to a rope with knots at equal intervals was used to measure speed. there were compasses with a bearing dial on a circular plate with degrees up to noted thereon. seamen had access to compilations of arab mathematicians and astronomers and to navigational manuals and technical works on the science of navigation and the instruments necessary for precision sailing. for merchants there were maps, books about maps, cosmographical surveys, and books on the newly discovered lands. in john mercator produced a map taking into account the converging of the meridians towards the pole. on this chart, a straight line course would correspond to a mariner's actual course through the water on the earth's sphere, instead of having the inaccuracies of a straight line on a map which suggested that the world was flat. it was in use by . 	in william gilbert, son of a gentleman, and physician to queen elizabeth, wrote a book on the magnetic properties of the earth. he cultivated the method of experiment and of inductive reasoning from observation and insisted on the need for a search for knowledge not in books but in things themselves. he showed that the earth was a great magnet with a north pole and a south pole, by comparing it to lodestones made into spheres in which a north and south pole could be found by intersecting lines of magnetism indicated by a needle on the stone. the vertical dip of the needle was explained by the magnetic attraction of the north pole. he showed how a lodestone's declination could be used to determine latitude at sea. he showed how the charge of a body could be retained for a period of time by covering the body with some non-conducting substance, such as silk. he distinguished magnetism from electricity, giving the latter its name. he discovered that atmospheric conditions affected the production of electricity, dryness decreasing it, and moisture increasing it. he expounded the idea of copernicus that the earth revolves around the sun in a solar system. however, the prevailing belief was still that the earth was at the center of the universe. 	christmas was an especially festive time of good fellowship. people greeted each other with "good cheer", "god be with you", or "against the new year". carols were often sung and musicians played many tunes. there was dancing and gambling. there were big dinners with many kinds of meat and drink. a hearty fire heated all the house. many alms were given to beggars. 	parliament enacted laws and voted taxes. the queen, house of lords, and house of commons cooperated together. there was relatively little dissension or debating. bills in the house of lords were read, voted on, discussed, and passed with the lords, peers, bishops, and justices sitting in their places according to their degree. the justices sat on the wool sacks. a bar separated this area from the rest of the room, where the members of the commons stood. there were many bills concerning personal, local, or sectional interests, but priority consideration was given to public measures. the house of lords still had members. the queen appointed and paid the speaker, clerk, and sergeant at arms of the commons. the knights in the commons were almost invariably from the county's leading families and chosen by consensus of knights with free land of at least s. in the county court. in the towns, the electors might be the town corporation, holders of certain properties, all the freemen, all the rate-payers, or all the male inhabitants. disputed elections were not usually concerned with political issues, but were rivalries for power. the commons gradually won for its members freedom from arrest without its permission and the right of punishing and expelling members for crimes committed. tax on land remained at % of its estimated yearly income. the queen deferred to the church convocation to define christian faith and religion, thus separating church and state functions. 	the treasury sought to keep a balanced budget by selling royal land and keeping crown expenditures down. the crown carried a slight debt incurred before the queen's accession. 	violence was still a part of the texture of everyday life. private armories and armed gangs were not uncommon. agricultural laborers kept sword and bow in a corner of their fields. non-political brutal crime and homicides were commonplace. there were frequent local riots and disturbances, in the country and in the towns. occasionally there were large-scale rebellions. but the rebellion of the earl of essex in had no aftermath in violence. in , the queen issued a proclamation enforcing curfew for london apprentices, who had been misruly. the queen issued proclamations to certain counties to place vagrant soldiers or vagrants under martial law because of numerous robberies. she ordered the deportation of vagrant irishmen in . 	theft and robbery were so usual that there were names for various techniques used. a ruffler went with a weapon to seek service, saying that he was a servitor in the wars, but his chief "trade" was to rob poor wayfaring men and market women. a prigman went with a stick in his hand like an idle person, but stole clothes off hedges. a whipjack begged like a mariner, but with a counterfeit license (called a "gibe"); he mostly robbed booths in fairs or pilfered ware from stalls, which was called "heaving of the booth". a frater had a counterfeit license to beg for some hospital, but preyed upon poor women coming and going to market. a quire bird was a person recently let out of prison, and was commonly a horse stealer. an upright man carried a truncheon of a staff and called others to account to him and give him a share or "snap" of all that they had gained in one month, and he often beat them. he took the chief place at any market walk and other assemblies. workers at inns often teamed up with robbers, telling them of wares or money travelers were carrying so the robber could profitably rob them after they left the inn. 	francis drake sailed around the world from to . walter ralegh made an expedition to north america in with the queen's authority to "discover barbarous countries, not actually possessed of any christian prince and inhabited by christian people, to occupy and enjoy". he found and named the land of virginia in honor of the queen, who was a virgin, and started a colony on roanoke island there. drake and ralegh plundered spanish ships for cargo such as american gold and silver, much of which was used to pay for the war with spain and much going to investors. seamen on navy and pirate ships raided captured vessels to seize personal possessions of the spanish on board. the experience fighting spanish ships led to improvements in ship design; building ships was no longer merely by copying another ship or a small model. when the seas were unsafe because of the war with spain, the export of english wool was disturbed and later replaced by trading from world ports. many london merchants grew rich from using their ships for pirating. 	in , a spanish armada came to invade england, return it to catholicism, and stop the pirating of spanish ships. in that battle off england's shores, drake and other experienced sea fighters led two hundred english ships, of which about were built to sink other ships rather than to board and capture them. these new english ships were longer and narrower and did away with the towering superstructures at bow and stern. this made them more maneuverable and easier to sail. also, the english guns were lighter, more numerous, and outranged the spanish guns. so the smaller english ships were able to get close enough to fire broadside after broadside against the big spanish troop-transport galleons, without being fired upon. the english sent fire ships into the spanish fleet when it was anchored, causing it's ships to disperse in a panic. then the direction of the wind forced the spanish galleons northward, where most of them were destroyed by storms. the english seamen had been arbitrarily pressed into this service. 	a royal proclamation of offered a reward of pounds for information on libels against the queen. there had been mounting demonstrations against her monopolies, which mostly affected household items. there had been abuses of monopolies, such as the steel monopoly had been sold for pounds s., but steel was then sold at d. per pound instead of the former / d. per pound. further the steel was mixed and of a lesser quality. this so damaged the knife and sword industry that about workers lost their jobs from it and became beggars. monopoly was a severe burden to the middle and poorer classes. also, the power of patent holders to arrest and imprison persons charged with infringing upon their rights was extended to any disliked person. 	when the house of commons protested against monopolies in , elizabeth reduced them. she addressed her council and the commons saying that "mr. speaker, you give me thanks, but i doubt me that i have more cause to thank you all than you me; and i charge you to thank them of the lower house from me. for had i not received a knowledge from you, i might have fallen into the lapse of an error only for lack of true information. since i was queen yet did i never put my pen to any grant but that upon pretext and semblance made unto me, it was both good and beneficial to the subject in general, though a private profit to some of my ancient servants who had deserved well. but the contrary being found by experience, i am exceedingly beholding to such subjects as would move the same at the first. and i am not so simple to suppose but that there be some of the lower house whom these grievances never touched; and for them i think they speak out of zeal to their countries and not out of spleen or malevolent affection, as being parties grieved. and i take it exceedingly gratefully from them, because it gives us to know that no respects or interests had moved them other than the minds they bear to suffer no diminution of our honor and our subjects' love unto us, the zeal of which affection tending to ease my people and knit their hearts unto me, i embrace with a princely care. for above all earthly treasures i esteem my people's love, more than which i desire not to merit. that my grants should be grievous unto my people and oppressions to be privileged under color of our patents, our kingly dignity shall not suffer it. yea, when i heard it i could give no rest unto my thoughts until i had reformed it. shall they (think you) escape unpunished that have thus oppressed you, and i have been respectless of their duty and regardless of our honor? no, no, mr. speaker, i assure you, were it not more for conscience' sake than for any glory or increase of love that i desire, these errors, troubles, vexations, and oppressions done by these varlets and low persons (not worthy the name of subjects) should not escape without condign punishment. but i perceive they dealt with me like physicians who, ministering a drug, make it more acceptable by giving it a good aromatical savor; or when they give pills, do gild them all over. i have ever used to set the last judgment day before my eyes and so to rule as i shall be judged, to answer before a higher judge. to whose judgment seat i do appeal that never thought was cherished in my heart that tended not unto my people's good. and now if my kingly bounties have been abused and my grants turned to the hurts of my people, contrary to my will and meaning, or if any in authority under me have neglected or perverted what i have committed to them, i hope good will not lay their culps [sins] and offenses to my charge. who, though there were danger in repealing our grants, yet what danger would i not rather incur for your good than i would suffer them still to continue? i know the title of a king is a glorious title, but assure yourself that the shining glory of princely authority hath not so dazzled the eyes of our understanding but that we well know and remember that we also are to yield an account of our actions before the great judge. to be a king and wear a crown is a thing more glorious to them that see it than it is pleasant to them that bear it. for myself, i was never so much enticed with the glorious name of a king or royal authority of a queen as delighted that god hath made me his instrument to maintain his truth and glory, and to defend this kingdom from peril, dishonor, tyranny, and oppression. there will never queen sit in my seat with more zeal to my country, care to my subjects, and that will sooner with willingness venture her life for your good and safety, than myself. for it is not my desire to live or reign longer than my life and reign shall be for your good. and though you have had and may have many princes more mighty and wise sitting in this seat, yet you never had or shall have any that will be more careful and loving." 	about , richard hakluyt, a bristol clergyman, wrote "a particular discourse concerning western discoveries". this was to become the classic statement of the case for english colonization. it held out hope that the english would find needed timber for masts, pitch, tar, and ashes for soap. 	in rome in , giordano bruno, an italian monk and priest, was burned alive at the stake by a court of the inquisition for not recanting, although tortured, his heretical and blasphemous philosophy. he had opined that christianity was irrational and had no scientific basis. he declared that christ was only a skillful magician, that the bible could not be taken literally, that god and nature were not separate as taught by genesis, that the catholic church encouraged ignorance from the instinct of self-preservation, and that the earth and planets revolved around the sun, as did other planets around the "fixed" stars and other suns. 	the jesuits, a new catholic order brimming with zeal, sent missionaries to england to secretly convert people to catholicism. the practice of catholicism had gone underground in england, and some catholic householders maintained catholic priests in hidden places in their homes. although estate tails (estates descendible only to the heirs of the body of the original feofee) by law could not be sold or given away, this was circumvented by the fraudulent use of a "straw man". in collaboration with the possessor of the property, this straw man sued the possessor asserting that the property had been wrongfully taken from the straw man. the possessor pleaded that the crier of the court who had warranted the title should be called to defend the action. he failed to appear until after judgment had been given to the straw man. then the straw man conveyed it to the possessor or his nominee in fee simple. - the law - 	the following statute of artificers regulated labor for the next two centuries: no master or mistress may employ a servant for a term less than one year in the crafts of clothiers, woolen cloth weavers, tuckers, fullers, clothworkers, shearmen, dyers, hosiers, tailors, shoemakers, glovemakers, tanners, pewterers, bakers, brewers, cutlers, smith, farriers, curriers, saddlers, spurriers, turners, cappers, hatmakers, feltmakers, bow-makers, arrow-makers, arrowhead-makers, butchers, cooks, or millers. also, every craftsman unmarried or under age who is not working must accept employment by any person needing the craft work. also, any common person between and who is not working must accept employment in agriculture. and, unmarried women between and may be required by town officials to work by the year, the week, or day for wages they determine. all artificers and laborers hired by the day or week shall work from am to pm. all artificers must labor at agriculture at haytime and harvest to avoid the loss of grain or hay. every householder who raises crops may receive as an apprentice a child between and to serve in agriculture until he is age . a householder in a town may receive a child as an apprentice for years, but merchants may only take as apprentices children of parents with s. freehold. no one may be a craftsman until he has served seven years as an apprentice. these artificers may have children as apprentices: smith, wheelmaker, ploughmaker, millmaker, miller, carpenter, rough mason, plasterer, a timber sawer, an ore burner, a lime burner, brickmaker, bricklayer, tilemaker, tiler, layer of slate roofs, layer of wood shingle roofs, layer of straw roofs, cooper, earthen potter, linen weaver, housewife who weaves wool for sale or for household use. purposes of the statute of artificiers were to advance agriculture, diminish idleness, and inhibit migration to the towns. it excluded three fourths of the rural population.) 	troops of vagabonds with weapons in the highways who pretend to be soldiers or mariners have committed robberies and murders. so all vagabonds shall settle down in some service or labor or trade. 	a vagabond or mighty strong beggar [able to work] shall be whipped. 	incorrigible and dangerous rogues shall be branded with an "r" mark on the left shoulder and be put to labor, because banishment did not work as they came back undetected. if one is caught again begging, he shall be deemed a felon. 	if a person marries a second time while the first spouse is still living, it shall be a felony and thus punishable by death. 	no attainder shall result in the forfeiture of dower by the offender's wife nor disinheritance of his heirs. 	no one shall forge a deed of land, charter, sealed writing, court roll or will. 	no one shall libel or slander so as to cause a rebellion. 	embezzlement or theft by a servant of his master's goods of s. or more is a felony. 	cut-purses and pick-purses shall not have benefit of clergy. 	a person robbing a house of s. by day when no one is there shall not have benefit of clergy, because too many poor persons who cannot hire a servant to look after their house when they go to work have been robbed. 	benefit of clergy may not be had for stabbing a person who has no weapon drawn, if he dies within six months. 	fraudulent and secret conveyances made to retain the use of one's land when one sells the land to a bona fide purchaser for value in fee simple, fee tail, for life, for lives, or for years are void. 	crown officials such as treasurers, receivers, accountants, and revenue collectors shall not embezzle crown funds and shall be personally liable for arrears. 	persons forcibly taking others across county lines to hold them for ransom and those taking or giving blackmail money and those who burn barns or stacks of grain shall be declared felons and shall suffer death, without any benefit of clergy or sanctuary. 	any person killing any pheasant, partridge, dove, pigeon, duck or the like with any gun, crossbow, stonebow, or longbow, or with dogs and nets or snares, or taking the eggs of such from their nests, or tracing or taking hares in the snow shall be imprisoned for three months unless he pays s. per head or, after one month's imprisonment, have two sureties bound for s. this is because the past penalty of payment hasn't deterred offenders, who frequently cannot pay. 	persons affected by the plague may not leave their houses or be deemed felons and suffer death. this is to avoid further infection. the towns may tax their inhabitants for the relief of infected persons. 	devising or speaking seditious rumors are penalized by the pillory and loss of both ears for the first offense; and pounds and six months imprisonment for the second offense. slandering the queen is penalized by the pillory and loss of one ear, or by [ , s.] marks and three months imprisonment, at the choice of the offender. the second offense is a felony. printing, writing, or publishing seditious books is a felony without benefit of clergy. wishing the queen dead, prophesying when she would die, or who would succeed her to the crown is a felony without benefit of clergy. attainders for these felonies shall not work corruption of the blood [heirs may inherit the property of the felon]. 	a debtor may not engage in a fraudulent collusion to sell his land and goods in order to avoid his creditors. this was designed to remedy the following problem: 	a native or denizen merchant in wholesale or retail goods who leaves the nation to defraud his creditors shall be declared a bankrupt. the chancellor may conduct an investigation to ascertain his land, house, and goods, no matter who may hold them. they shall be appraised and sold to satisfy his debts. 	lands, tenements, goods and chattels of accountants teller, or receiver who are in debt may be obtained by court order to satisfy the debt by garnishing the heir of the debtor after the heir has reached and for the years next ensuing. 	loan contracts for money lent may not be for more than s. for each s. yearly (i.e. % interest). all loans of money or forbearing of money in sales of goods not meeting this requirement shall be punishable by forfeit of the interest only. 	pawn brokers accepting stolen goods shall forfeit twice their value to the owner from whom stolen. 	when the hue and cry is raised for a robbery in a hundred, and other hundreds have been negligent, faulty, or defective in pursuit of the robber, then they must pay half the damages to the person robbed, while the hundred in which the robbery occurred pays the other half. robbers shall be pursued by horse and by foot. 	the mother and reputed father of any bastard who has been left to be kept at the parish where born must pay weekly for the upkeep and relief of such child, so that the true aged and disabled of the parish get their relief and to punish the lewd life. 	any innkeeper, victualer, or alehouse keeper who allows drinking by persons other than those invited by a traveler who accompanies him during his necessary abode there or other than laborers and handicraftsmen in towns upon the usual working days for one hour at dinner time to take their diet in an alehouse or other than laborers and workmen following their work to any given town to sojourn, lodge, or victual in any inn, alehouse or victualing house shall forfeit s. for each offense. this is because the use of inns, alehouses, and victualing houses was intended for relief and lodgings of traveling people and people not able to provide their own victuals, but not for entertainment and harboring of lewd and idle people who become drunk. 	no butcher may cut any hide or any ox, bull, steer, or cow so that it is impaired or may kill any calf under five weeks old. no butcher may be a tanner. no one may be a tanner unless that person has apprenticed as such for seven years, or is the son or wife of a tanner who has tanned for four years, or is a son or daughter of a tanner who inherits his tanhouse. tanners may not be shoemakers, curriers, butchers, or leatherworkers. only tanners may buy raw hides. only leatherworkers may buy leather. only sufficiently strong and substantial leather may be used for sole-leather. curriers may not be tanners. curriers may not refuse to curry leather. london searchers shall inspect leather, seal and mark that which is sufficient, and seize any that is insufficiently tanned, curried, wrought, or used. 	the incorporated company of ship masters may erect beacons and marks on the seashores and hills above, because certain steeples and other marks used for navigation have fallen down and ships therefore have been lost in the sea. 	there shall be one sheriff per county, because now there are enough able men to supply one per county. 	no one shall bribe an elector to vote for a certain person for fellow, scholar, or officer of a college, school, or hall or hospital so that the fittest persons will be elected, though lacking in money or friends, and learning will therefore be advanced. 	no master at a university may lease any land unless / of it is retained for raising crops to supply the colleges and halls for food for their scholars. 	fish, but no meat, may be eaten on wednesdays so that there will be more fishermen and mariners and repair of ports. (this was done because fishing had declined since the dissolution of the monasteries, where fissh was eaten eveery friday. eating fish instead of meat in lent in the springtime remained a tradition.) 	every person over years of age shall wear on sundays a wool knitted cap made by the cappers, except for maidens, ladies, gentlewomen, noble persons, and every lord, knight, and gentlemen with , s. of land, since the practice of not wearing caps has damaged the capping industry. this employed cappers and poor people they had employed and the decrepit and lame as carders, spinners, knitters, parters, forsers, thickers, dressers, dyers, battelers, shearers, pressers, edgers, liners, and bandmakers. 	no man under the degree of knight may wear a hat or cap of velvet. caps may not be made of felt, but only knit wool. only hats may be made of felt. this is to assist the craft of making wool caps. 	no one may make any hat unless he has served as apprentice for at least seven years. this is to prevent false and deceitful hat- making by unskillful persons. 	no one shall make false linen by stretching it and adding little pieces of wood, which is so weak that it comes apart after five washings. 	timber shall not be felled to make logs for fires for the making of iron. 	no one may take small fish to feed to dogs and pigs. only nets with mesh leaving three inches spaces may be used to catch fish. 	cottage and dwelling houses for workmen or laborers in mineral works, coal mines, or quarries of stone or slate for the making of brick, tile, lime, or coals shall be built only within a mile from such works. dwelling houses beyond this must be supported by four acres of land to be continually occupied and manured as long as the dwelling house is inhabited or else forfeit s. per month to the queen. cottages and dwelling houses for sailors or laborers working on ships for the sea shall be built only within a mile of the sea. a cottage may be built in a forest or park for a game keeper of the deer. a cottage may be built for a herdman or shepherd for the keeping of cattle or sheep of the town. a cottage may be built for a poor, lame, sick, aged, or disabled person on waste or common land. more families than one may not be placed in one cottage or dwelling house. (this is a zoning law.) 	any person with land in fee-simple may establish a hospital, abiding place, or house of correction to have continuance forever as a corporation for the sustenance and relief of the maimed, poor, or disabled people as to set the poor to work. the net income shall not exceed , s. yearly. 	no new iron mills or furnaces for making or working of any iron or iron metal shall be established in the country around london and the owners of carriages of coals, mines and iron which have impaired or destroyed the highways shall also carry coal ashes, gravel, or stone to repair these highways or else make a payment of s. d. for each cart load not carried. 	for repairing of highways, the supervisors may take the rubbish or smallest stones of any quarry along the road in their precinct. 	persons with s. in goods or s. in lands shall find two able men in their parish community to repair the highways yearly. 	landowners of oxford shall be taxed for the repair of the highway and bridge there. 	the price of barrels shall be set by mayors of the towns where they are sold. 	rugs shall weigh pounds at least and be yards at least in length and at most / yard wide. 	no cattle may be put in any enclosed woods that have been growing less than five years. at the end of five years growth, calves may be put in. at the end of six years growth, cattle may be put in. 	woods around london shall not be felled to be converted to coals for iron-works because london needs the wood to make buildings and for fireplaces. 	every melter and maker of wax from honeycombs shall put his mark on every piece of his wax to be sold. wrought wax such as in lights, staff-torches, red wax or sealing wax, book candles, or searing candles shall bear its maker's mark. all barrels of honey shall bear the mark of the honeymaker. 	wool cloth, cotton cloth, flannel cloth, hose-yarn, hats, and caps shall be dyed black only with dye from the woad plant and not with any false black dye. 	no one shall take or kill any pheasants with nets or devices at nighttime because such have become scarce. 	pontage [toll for upkeep and repair of bridges] shall be taken at certain bridges: carts d., horse and pack d., a flock of sheep d. 	no bishop may lease land for more than twenty-one years or longer than the lives of three designated persons. 	no bishop may alienate any possession of their sees to the crown. such are void. 	watermen transporting people on the thames river shall have served as apprentice to a waterman for five years or have been the son of a waterman. this is to prevent the loss of lives and goods by inexperienced watermen. 	spices and potions, including pepper, cloves, mace, nutmeg, cinnamon, ginger, almonds, and dates, which have usually been garbled [cleaned or sorted by sifting] shall be garbled, cleaned, sorted, and sealed by the garbler before sale. this is to prevent mingled, corrupt, and unclean spices and potions from being sold. 	plasterers shall cease painting because it has intruded upon the livelihoods of painters who have been apprenticed as such. 	fishermen and their guides may continue to use the coastland for their fishing activities despite the trespass to landowners. 	since sails for ships in recent years have been made in the realm instead of imported, none shall make such cloth unless he has been apprenticed in such or brought up in the trade for seven years. this is to stop the badness of such cloth. 	tonnage and poundage on goods exported and imported shall be taken to provide safeguard of the seas for such goods. 	all persons must go to the established church on sundays and holy days. the penalty was at first forfeiture d. along with church punishment, and later, pounds per month and being bound by two sureties for pounds for good behavior, and if the pounds is not paid, then forfeiture of all goods to be applied to the amount due and two-thirds of one's land. 	these laws were directed against catholicism, but were laxly enforced as long as worship was not open and no one wore priestly clothes: ) the writing, preaching, or maintaining of any foreign spiritual jurisdiction shall be punished by forfeiture of goods or, if the goods are not worth pounds, one year imprisonment, for the first offense; forfeiture of goods and lands and the king's protection, for the second offense; and the penalty for high treason for the third offense. ) any person leading others to the romish [catholic] religion is guilty of high treason. the penalty for saying mass is [ , s.] marks and one year's imprisonment. the penalty for hearing mass is [ , s.] marks and one year's imprisonment. if one is suspected of being a jesuit or priest giving mass, one must answer questions on examination or be imprisoned. ) papists [those who in conscience refused to take the oath of supremacy of the crown over the church] must stay in their place of abode and not go five miles from it, unless licensed to do so for business, or else forfeit one's goods and profits of land for life. if a copyholder, land is forfeited to one's lord. but if the goods are not worth s. or the land is not worth at least s., the realm must be abjured. otherwise, the papist is declared a felon without benefit of clergy. ) if a child is sent to a foreign land for catholic education, he cannot inherit lands or goods or money, unless he conforms to the established church on his return. there is also a pound penalty for the persons who sent him. - judicial procedure - 	trials of noblemen for treason shall be by their peers. 	stewards of leet and baron courts may no longer receive, in their own names, profits of the court over d. since they have vexed subjects with grievous fines and amercements so that profits of justice have grown much 	jurors shall be selected from those people who have at least s. annual income instead of s. because sheriffs have been taking bribes by the most able and sufficient freeholders to be spared at home and the poorer and simpler people, who are least able to discern the causes in question, and most unable to bear the charges of appearance and attendance in such cases have been the jurors. also there had been inflation. 	defendants sued or informed against upon penal statutes may appear by attorney so that they may avoid the inconvenience of traveling a long distance to attend and put to bail. 	not only sheriffs, but their employees who impanel juries or execute process in the courts shall take an oath of office. 	a hundred shall answer for any robbery therein only if there has been negligence or fault in pursuit of the robber after a hue and cry is made because the past law has been too harsh and required payment for offenses from people unable to pay who have done everything reasonable to catch the robber. 	the star chamber became the central criminal court after , and punished perjury, corruption, malfeasance throughout the legal system such as jury corruption and judicial bribery, rioting, slander, and libel. its procedure was inquisitory rather than accusative. it heard witnesses in camera [not in the presence of the suspected]. trial was by systematic interrogation of the suspected on oath, with torture if necessary in treason cases. silence could be taken for a confession of guilt. there was no jury. queen elizabeth chose not to sit on this court. punishments were imprisonment, fines, the pillory, ear cropping or tacking, whipping, stigmata on the face, but not death or any dismemberment except for the ears. (the gentry was exempt from whipping.) 	because the publication of many books and pamphlets against the government, especially the church, had led to discontents with the established church and to the spreading of sects and schisms, the star chamber in held that the printing trade was to be confined to london, except for one press at oxford and one at cambridge. no book or pamphlet could be printed unless the text was first seen, examined, and allowed by the archbishop of canterbury or the bishop of london. book publishers in violation were to be imprisoned for six months and banned from printing; their equipment was to be destroyed. wardens were authorized to search wherever "they shall have reasonable cause of suspicion", and to seize all such books and pamphlets printed. but printers continued to print unlicensed material. 	the ecclesiastical high commission [later called the court of high commission or high court of ecclesiastical causes] took over criminal cases formerly heard by the church courts. it also heard matters of domestic morals. it was led by bishops and privy council members who in were authorized by a statute of parliament to keep order within the church, discipline the clergy, and punish such lay offenses as were included in the ecclesiastical jurisdiction. obstinate heresy is still a capital crime, but practically the bishops have little power of forcing heretics to stand trial. if anyone maintains papal authority, he forfeits his goods; on a third conviction, he is a traitor. the clergyman who adopts a prayer book other that the prescribed one commits a crime. excommunication has imprisonment behind it. elizabeth gave this court the power to fine and imprison, which the former church courts had not had. at first, the chief work was depriving papists of their benefices. 	suits on titles to land were restricted to the common law courts and no longer to be heard in the star chamber, chancery court, or in the court of requests (equity for poor people). 	the queen's privy council investigated sedition and treason, security of the regime, major economic offenses, international problems, civil commotion, officials abusing their positions, and persons perverting the course of justice. it frequently issued orders to justices of the peace, for instance to investigate riots and crimes, to enforce the statutes against vagrancy and illegal games, to regulate alehouses, to ensure that butchers, innkeepers, and victualers did not sell meat on fish days, and to gather information needed from the counties. the justices of the peace decided misdemeanors such as abduction of heiresses, illegal entry, petty thievery, damage to crops, fence-breaking, brawling, personal feuds, drunken pranks, swearing, profanation of the sabbath, alehouse nuisances, drunkenness, perjury, and malfeasance by officials. they held petty and quarter sessions. the justices of the peace had administrative duties in control of vagrancy, upkeep of roads and bridges, and arbitration of lawsuits referred to them by courts. they listed the poor in each parish community, assessed rates for their maintenance, and appointed overseers to administer the welfare system, deploying surplus funds to provide houses of correction for vagrants. raw materials such as wool, flax, hemp, and iron were bought upon which the able-bodied unemployed could be set to work at the parochial level. they determined wages in their districts, with no statutory ceiling on them, for all laborers, weavers, spinsters, workmen and workwomen working by the day, week, month, or year, or taking any work at any person's hand. there were about justices of the peace per county. all were unpaid. they performed these duties for the next years. 	the justices of assize rode on circuit twice a year to enforce the criminal law and reported their assessment of the work of the justices of the peace back to the privy council. 	the duty to hear and determine felonies was taken from justices of the peace by . the justices of assize did this work. accused people could wait for years in gaol before their case was heard. felonies included breach of prison, hunting by night with painted faces, taking horses to scotland, stealing of hawks' eggs, stealing cattle, highway robbery, robbing on the sea, robbing houses, letting out of ponds, cutting of purses, deer-stealing at night, conjuring and witchcraft, diminution of coin, counterfeiting of coins, and impenitent roguery and idleness. the penalty was death. many people were hanged for the felony of theft over d. some bold men accused of felony refused to plead so that they could not be tried and found guilty. they died of heavy weights being placed on their bodies. but then their property could go to their heirs. 	the court of queen's bench and exchequer indirectly expanded their jurisdiction to include suits between citizens, formerly heard only the court of common pleas or chancery. chancery interrogated defendants. chancery often issued injunctions against suits in the common law courts. trial by combat was very rare. 	pleadings had to be in writing and oral testimony was given by sworn witnesses. case decisions are in books compiled by various reporters who sit in on court hearings rather than in year books. 	in the common law, trespass has given rise to the offshoot branch of "ejectment", which becomes the common means of recovering possession of land, no matter what kind of title the claimant asserts. trespass on the case has given rise to the offshoot branch of "trover" [finding another's goods and converting them to one's own use]. the use of the action of trover gradually supplants the action of detinue, which involves compurgation. 	in the common law courts, the action of assumpsit for enforcing certain promises is used more than the action of debt in those cases where there is a debt based on an agreement. the essential nature of "consideration" in contract is evolving from the procedural requirements for the action of assumpsit. consideration may consist in mutual promises, a precedent debt, or a detriment incurred by one who has simultaneously received a promise related to the detrimental action. consideration must be something, an act, or forbearance of an act that is of value. for instance, forbearance to sue a worthless claim is not consideration. 	the abstract concept of contract as an agreement between two parties which is supported by consideration is developing as the number of various agreements that are court enforceable expands. for instance the word "consideration" is used in hayward's case in in the court of wards on the construction of a deed. sir rowland hayward was seised in fee of the doddington manor and other lands and tenements, whereof part was in demesne, part in lease for years with rents reserved, and part in copyhold, by indenture, "in consideration of a certain sum of money" paid to him by richard warren and others, to whom he demised, granted, bargained and sold the said manor, lands and tenements, and the reversions and remainders of them, with all the rents reserved upon any demise, to have and to hold to them and their assigns, presently after the decease of sir rowland, for the term of years. it was held that the grantees could elect to take by bargain and sale or by demise, each of which had different consequences. in another case, a delivered s. to b to the use of c, a woman, to be delivered to her on the day of her marriage. before this day, a countermanded it, and called home the money. it was held in the chancery court that c could not recover because "there is no consideration why she should have it". in a case concerning a deed, a sold land to b for s., with confidence, that it would be to the use of a. this bargain "hath a consideration in itself ... and such a consideration is an indenture of bargain and sale". it was held that the transaction was not examinable except for fraud and that a was therefore estopped. a court reporter at the king's bench formulated two principles on consideration of the case of wilkes against leuson as: "the heir is estopped from falsifying the consideration acknowledged in the deed of feoffment of his ancestor. where a tenant in capite made a feoffment without consideration, but falsely alleged one in the deed on an office finding his dying seised, the master of the wards cannot remove the feoffees on examining into the consideration, and retain the land until &c. and though the heir tended, still if he do not prosecute his livery, the queen must admit the feoffees to their traverse, and to have the farm, &c." the court reporter summarized this case as follows: wilkes, who was merchant of the staple, who died in february last past, made a feoffment in the august before his death to one leuson, a knight, and his brother, and another, of the manor of hodnel in the county of warwick; and the deed, (seen) for seven thousand pounds [ , s.] to him paid by the feoffees, of which sum he made acquittance in the same deed (although in fact and in truth not a half-penny was paid), gave, granted, and confirmed &c "habendum eir et hoeredibus suis in perpetuum, ad proprium opus et usum ipsorum a. b. et c. in perpetuum," and not "hoeredum suorum," together with a clause of warranty to them, their heirs and assigns, in forma proedicta: and notwithstanding this feoffment he occupied the land with sheep, and took other profits during his life; and afterwards his death was found on a diem clausit extremum by office, that he died seised of the said manor in fee, and one i. wilkes his brother of full age found his next heir, and a tenure in capite found, and now within the three months the said feoffees sued in the court of wards to be admitted to their traverse, and also to have the manor in farm until &c. and although the said i. wilkes the brother had tendered a livery, yet he had not hitherto prosecuted it, but for cause had discontinued. and whether now the master of the wards at his discretion could remove the feoffees by injunction out of possession upon examination of the said consideration of the said feoffment which was false, and none such in truth, and retain it in the hands of the queen donec et quousque &c. was a great question. and by the opinion of the learned counsel of that court he cannot do it, but the queen is bound in justice to give livery to him who is found heir by the office, or if he will not proceed with that, to grant to the tenderers the traverse, and to have the farm, &c. the request above mentioned. and this by the statutes ... and note, that no averment can be allowed to the heir, that the said consideration was false against the deed and acknowledgment of his ancestor, for that would be to admit an inconvenience. and note the limitation of the use above, for divers doubted whether the feoffees shall have a fee-simple in the sue, because the use is not expressed, except only "to themselves (by their names) for ever;" but if those words had been wanting, it would have been clear enough that the consideration of seven thousand pounds had been sufficient, &c. for the law intends a sufficient consideration by reason of the said sum; but when the use is expressed otherwise by the party himself, it is otherwise. and also the warranty in the deed was "to them, their heirs, and assigns, in form aforesaid," which is a declaration of the intent of wilkes, that the feoffees shall not have the use in fee simple; and it may be that the use, during their three lives, is worth seven thousand pounds, and more &c. and suppose that the feoffment had been "to have to them and their heirs to the proper use and behoof of them the feoffees for the term of their lives for ever for seven thousand pounds," would they have any other estate than for the term of their lives in the use? i believe not; and so in the other case. a last example of a case concerning consideration is that of assaby and others against lady anne manners and others. the court reporter characterized the principle of the case as: "a. in consideration of his daughter's marriage covenants to stand seised to his own use for life, and that at his death she and her husband shall have the land in [fee] tail, and that all persons should stand seised to those uses, and also for further assurance. after the marriage he bargains and sell with fine and recovery to one with full notice of the covenants and use; this is of no avail, but on the death of a. the daughter and her husband may enter." the court reporter summarized this case as follows: a. was seised of land in fee, and in consideration of a marriage to be had between his daughter and heir apparent, and b. son and heir apparent of c. he covenanted and agreed by indenture with c. that he himself would have, hold, and retain the land to himself, and the profits of during his life, and that after his decease the said son and daughter should have the land to them and to the heirs of their two bodies lawfully begotten, and that all persons then or afterwards seised of the land should stand and be seised immediately after the marriage solemnized to the use of the said a. for the term of his life, and after his death to the use of the said son and daughter in tail as above, and covenanted further to make an assurance of the land before a certain day accordingly &c. and then the marriage took effect; and afterwards a. bargained and sold the land for two hundred marks [ , s.](of which not a penny is paid) to a stranger, who had notice of the first agreements, covenants, and use, and enfeoffed divers persons to this last use, against whom a common recovery was had to his last use; and also a. levied a fine to the recoverers before any execution had, and notwithstanding all these things a. continued possession in taking the profits during his life; and afterwards died; and the son and daughter entered, and made a feoffment to their first use. and all this matter was found in assize by assaby and others against lady anne manners and others. and judgment was given that the entry and feoffment were good and lawful, and the use changed by the first indenture and agreement. yet error was alleged. the judgment in the assize is affirmed. 	the famous shelley's case stands for the principle that where in any instrument an estate for life is given to the ancestor, and afterwards by the same instrument, the inheritance is limited whether mediately, or immediately, to his heirs, or heirs of his body, as a class to take in succession as heirs to him, the word "heirs" is a word of limitation, and the ancestor takes the whole estate. for example, where property goes to a for life and the remainder goes to a's heirs, a's life estate and the remainder merge into a fee in a. a can sell or devise this interest. edward shelley was a tenant in fee tail general. he had two sons. the older son predeceased his father, leaving a daughter and his wife pregnant with a son. edward had a common recovery (the premises being in lease for years) to the use of himself for term of his life, after his decease to the use of the male heirs of his body, and of the male heirs of the body of such heirs, remainder over. after judgment and the awarding of the writ of seisin, but before its execution, edward died. after his death, and before the birth of his older son's son, the writ of seisin was executed. the younger son entered the land and leased it to a third party. afterwards, the son of the older son was born. he entered the land and ejected the third party. it was held that the younger son had taken quasi by descent until the birth of the older son's son. the entry by the older son's son was lawful. the third party was lawfully ejected. (shelley's case, king's bench, , english reports - full reprint, vol. , page .) 	about , london authorities punished nicholas jennings alias blunt for using elaborate disguises to present himself as an epileptic to beg for handouts from the public. he was pilloried, whipped, and pulled behind a cart through the streets. he was kept at the bridewell and was set to work at a mill. - - - chapter - - - - the times: - - 	due in part to increasing population, the prices of foodstuffs had risen sixfold from the later s, during which it had been stable. this inflation gradually impoverished those living on fixed wages. landlords could insist on even shorter leases and higher rents. london quadrupled in population. many lands that were in scattered strips, pasture lands, waste lands, and lands gained from drainage and disafforestation were enclosed for the introduction of convertible agriculture (e.g. market-oriented specialization) and only sometimes for sheep. the accompanying extinguishment of common rights was devastating to small tenants and cottagers. gentry and yeomen benefited greatly. there was a gradual consolidation of the land into fewer hands and demise of the small family farm. in towns, the mass of poor, unskilled workers with irregular work grew. prices finally flattened out in the s. 	society became polarized with a wealthy few growing wealthier and a mass of poor growing poorer. this social stratification became a permanent fixture of english society. poverty was no longer due to death of a spouse or parent, sickness or injury, or a phase in the life cycle such as youth or old age. many full-time wage earners were in constant danger of destitution. more subdivided land holdings in the country made holdings of cottagers minuscule. but these were eligible for parish relief under the poor laws. beside them were substantial numbers of rogues and vagabonds wandering the roads. these vagrants were usually young unmarried men. there were no more licensed liveries of lords. 	during the time to , there were distinct social classes in england which determined dress, convention in comportment which determined face-to-face contacts between superiors and inferiors, order of seating in church, place arrangement at tables, and rank order in public processions. it was influenced by power, wealth, life-style, educational level, and birth. the various classes lived in separate worlds; their paths did not cross each other. people moved only within their own class. each class had a separate existence as well as a different life style from the other classes. so each class developed a wariness of other classes. however, there was much social mobility between adjacent classes. 	at the top were the gentry, about % of the population. theirs was a landed wealth with large estate mansions. they employed many servants and could live a life of leisure. their lady wives often managed the household with many servants and freely visited friends and went out shopping, riding, or walking. they conversed with neighbors and made merry with them at childbirths, christenings, churchings, and funerals. gentlemen usually had positions of responsibility such as lords of manors and leaders in their parishes. these families often sent the oldest son to university to become a justice of the peace and then a member of parliament. they also served as county officers such as high constable of their hundred and grand jury member. their social, economic, and family ties were at least countywide. they composed about gentle families, including the peers, who had even more landed wealth, which was geographically dispersed. after the peers were: baronets (created in ), knights, esquires, and then ordinary gentlemen. these titles were acquired by being the son of such or by purchase. most gentry had a house in london, where they spent most of their time, as well as country mansions. about / of the land was in the hands of , of the nobility and landed gentry due in part to estate tails constructed by attorneys to favor hereditary interests. the gentry had also profited by commerce and possessions in the colonies. the country life of a country squire or gentleman dealt with all the daily affairs of a farm. he had men plough, sow, and reap. he takes part in the haying and getting cut grass under cover when a rain came. his sow farrows; his horse is gelded; a first lamb is born. he drags his pond and takes out great carps. his horses stray and he finds them in the pound. boys are bound to him for service. he hires servants, and some work out their time and some run away. knaves steal his sheep. his hog is stabbed. he and a neighbor argue about the setting up of a cottage. he borrows money for a daughter's dowry. he holds a leet court. he attends church on sunday and reads the lesson when called upon. he visits the local tavern to hear from his neighbors. country folk brawl. wenches get pregnant. men commit suicide, usually by hanging. many gentlemen spent their fortunes and died poor. new gentlemen from the lower classes took their places. 	the second class included the wealthier merchants and professional men of the towns. these men were prominent in town government. they usually had close family ties with the gentry, especially as sons. when wealthy enough, they often bought a country estate. the professional men included military officers, civil service officials, attorneys, some physicians, and a few clergymen. the instabilities of trade, high mortality rates in the towns, and high turnover rate among the leading urban families prevented any separate urban interest group arising that would be opposed to the landed gentry. also included in this second group were the most prosperous yeomanry of the countryside. 	the third class was the yeomanry at large, which included many more than the initial group who possessed land in freehold of at least s., partly due to inflation. freehold was the superior form of holding land because one was free to sell, exchange, or devise the land and had a political right to vote in parliamentary elections. other yeomen were those who possessed enough land, as copyholder or leaseholder, to be protected from fluctuations in the amount of the annual harvest, that is, at least acres. a copyholder rented land from a lord for a period of years or lives, usually three lives including that of the widow, and paid a substantial amount whenever the copyhold came up for renewal. the copyholder and leaseholder were distinguished from the mere tenant-at-will, whose only right was to gather his growing crop when his landlord decided to terminate his tenancy. the average yeoman had a one and a half story house, with a milkhouse, a malthouse, and other small buildings attached to the dwelling. the house would contain a main living room, a parlor, where there would be one or more beds, and several other rooms with beds. no longer was there a central great hall. cooking was done in a kitchen or over the open fire in the fireplace of the main room. furniture included large oak tables, stools, long bencches with or without backs, chests, cupboards, and a few hard-backed simple chairs. dishware was wood or pewter. the yeomen often became sureties for recognizances, witnesses to wills, parish managers, churchwardens, vestrymen, the chief civil officers of parishes and towns, overseers of the poor, surveyors of bridges and highways, jurymen and constables for the justices of the peace, and sheriffs' bailiffs. the families and servants of these yeomen ate meat, fish, wheaten bread, beer, cheese, milk, butter, and fruit. their wives were responsible for the dairy, poultry, orchard, garden, and perhaps pigs. they smoked and cured hams and bacon, salted fish, dried herbs for the kitchen or lavender and pot-pourri for sweetening the linen, and arranged apples and roots in lofts or long garrets under the roof to last the winter. they preserved fruits candied or in syrup. they preserved wines; made perfumes, washes for preserving the hair and complexion, rosemary to cleanse the hair, and elder-flower water for sunburn; distilled beverages; ordered wool hemp, and flax to spin for cloth (the weaving was usually done in the village); fashioned and sewed clothes and house linens; embroidered; dyed; malted oats; brewed; baked; and extracted oils. many prepared herb medicines and treated injuries, such as dressing wounds, binding arteries, and setting broken bones. wives also ploughed and sowed, weeded the crops, and sheared sheep. they sometimes cared for the poor and sold produce at the market. some yeomen were also tanners, painters, carpenters, or blacksmiths; and as such they were frequently brought before the justices of the peace for exercising a craft without having served an apprenticeship. the third class also included the freemen of the towns, who could engage independently in trade and had political rights. these freemen were about one-third of the male population of the town. 	the fourth class included the ordinary farmer leasing by copyhold, for usually years, five to fifty acres. from this class were drawn sidesmen [assistants to churchwardens] and constables. they had neither voice nor authority in government. their daily diet was bacon, beer, bread, and cheese. also in this class were the independent urban craftsmen who were not town freemen. their only voice in government was at the parish level. 	the fifth and lowest class included the laborers and cottagers, who were usually tenants at will. they were dependent on day labor. they started work at dawn, had breakfast for half an hour at six, worked until dinner, and then until supper at about six; in the summer they would then do chores around the barns until eight or nine. some were hedgers, ditchers, ploughmen, reapers, shepherds, and herdsmen. the cottagers' typical earnings of about s. a day amounted to about shillings a year, which was almost subsistence level. accordingly they also farmed a little on their four acres of land with garden. some also had a few animals. they lived in one or two room cottages of clay and branches of trees or wood, sometimes with a brick fireplace and chimney, and few windows. they ate bread, cheese, lard, soup, and greens. if a laborer was unmarried, he lived with the farmer. theirs was a constant battle for survival. they often moved, because of deprivation, to seek opportunity elsewhere. the town wage-earning laborers ranged from journeymen craftsmen to poor casual laborers. the mass of workers in london were not members of guilds, and the crime rate was high. 	the last three classes also contained rural craftsmen and tradesmen, who also farmed. the variety of trades became very large, e.g. tinsmiths, chain smiths, pewterers, violin makers, and glass painters. the curriers, who prepared hides for shoemakers, coachmakers, saddlers, and bookbinders, were incorporated. 	the fourth and fifth classes comprised about three fourths of the population. 	then there were the maritime groups: traders, ship owners, master and seamen, and the fishers. 	over one fourth of all households had servants. they were the social equals of day laborers, but materially better off with food and clothing plus an allowance of money of two pounds [ s.] a year. those who sewed got additional pay for this work. there was no great chasm between the family and the servants. they did not segregate into a parlor class and a kitchen class. the top servants were as educated as their masters and ate at the same table. great households had a chaplain and a steward to oversee the other servants. there was usually a cook. lower servants ate together. servants were disciplined by cuffs and slaps and by the rod by master or mistress. maids wore short gowns, a large apron, and a gypsy hat tied down over a cap. chamber maids helped to dress their mistresses. servants might sleep on trundle beds stored under their master's or mistress's bed, in a separate room, or on the straw loft over the stables. a footman wore a blue tunic or skirted coat with corded loop fasteners, knee-britches, and white stockings. he walked or ran on foot by the side of his master or mistress when they rode out on horseback or in a carriage and ran errands for him, such as leading a lame horse home or running messages. a good footman is described in this reference letter: "sir, - you wrote me lately for a footman, and i think this bearer will fit you: i know he can run well, for he has run away twice from me, but he knew the way back again: yet, though he has a running head as well as running heels (and who will expect a footman to be a stayed man) i would not part with him were i not to go post to the north. there be some things in him that answer for his waggeries: he will come when you call him, go when you bid him, and shut the door after him; he is faithful and stout, and a lover of his master. he is a great enemy to all dogs, if they bark at him in his running; for i have seen him confront a huge mastiff, and knock him down. when you go a country journey, or have him run with you a-hunting, you must spirit him with liquor; you must allow him also something extraordinary for socks, else you must not have him wait at your table; when his grease melts in running hard, it is subject to fall into his toes. i send him to you but for trial, if he be not for your turn, turn him over to me again when i come back..." 	dress was not as elaborate as in elizabethan times. for instance, fewer jewels were worn. ladies typically wore a brooch, earrings, and pearl necklaces. men also wore earrings. watches with elaborate cases were common. women's dresses were of satin, taffeta, and velvet, and were made by dressmakers. pockets were carried in the hand, fastened to the waist by a ribbon, or sewn in petticoats and accessible by a placket opening. the corset was greatly reduced. women's hair was in little natural-looking curls, a few small tendrils on the forehead with soft ringlets behind the ears, and the back coiled into a simple knot. men also wore their hair in ringlets. they had pockets in their trousers, first as a cloth pouch inserted into an opening in the side seam, and later sewn into the side seam. the bereaved wore black, and widows wore a black veil over their head until they remarried or died. rouge was worn by lower class women. toothbrushes, made with horsehair, were a new and costly luxury. the law dictating what classes could wear what clothes was difficult to enforce and the last such law was in . 	merchants who had become rich by pirating could now afford to extend their trading ventures well beyond the atlantic sea. cotton chintzes, calicoes, taffetas, muslins, and ginghams from india now became fashionable as dress fabrics. simple cotton replaced linen as the norm for napkins, tablecloths, bed sheets, and underwear. then it became the fashion to use calicoes for curtains, cushions, chairs, and beds. its inexpensiveness made these items affordable for many. there was a cotton-weaving industry in england from about , established by cotton workmen who fled to england in from antwerp, which had been captured. by , there were automatic weaving looms in london which could be operated by a novice. 	even large houses now tended to do without a courtyard and became compacted into one soaring and stately whole. a typical country house had deep-set windows of glass looking into a walled green court with a sundial in it and fringed around with small trees. the gables roofs were steep and full of crooks and angles, and covered with rough slate if there was a source for such nearby. there was an extensive use of red tile, either rectangular or other shapes and with design such as fishscales. the rooms are broad and spacious and include hall, great parlor, little parlor, matted chamber, and study. in the hall was still the great, heavy table. dining tables were covered with cloth, carpet, or printed leather. meals were increasingly eaten in a parlor. noble men now preferred to be waited upon by pages and grooms instead of by their social equals as before. after dinner, they deserted the parlor to retire into drawing rooms for conversation and desserts of sweet wine and spiced delicacies supplemented by fruit. afterward, there might be dancing and then supper. in smaller parlors, there was increasing use of oval oak tables with folding leaves. chests of drawers richly carved or inlaid and with brass handles were coming into increased use. walls were lined with panels and had pictures or were hung with tapestry. carpets, rugs, and curtains kept people warm. there were many stools to sit on, and some arm chairs. wide and handsome open staircases separated the floors. upstairs, the sitting and bedrooms open into each other with broad, heavy doors. bedrooms had four-post beds and wardrobes with shelves and pegs. under the roof are garrets, apple-lofts, and root-chambers. underneath is a cellar. outside is a farmyard with outbuildings such as bake house, dairy, cheese-press house, brewery, stilling house, malt house, fowl house, dove cot, pig stye, slaughter-house, wood house, barns, stable, and sometimes a mill. there were stew-ponds for fish and a park with a decoy for wild fowl. there was also a laundry, carpenter's bench, blacksmith's forge, and pots and equipment of a house painter. 	in the s, towns were fortified by walled ditches instead of relying on castles, which couldn't contain enough men to protect the townspeople. also in towns, water was supplied by local pumps and wells. in , a thirty-eight-mile aqueduct brought spring water into london. in the country, floors were of polished wood or stone and strewn with rushes. a ladies' attendant might sleep the same bedroom on a bed which slid under the ladies' bed. apprentices and shop boys had to sleep under the counter. country laborers slept in a loft on straw. bread was made in each household. there were bedroom chairs with enclosed chamber pots. 	wood fires were the usual type. coal was coming into use in the towns and near coal mines. charcoal was also used. food was roasted on a spit over a fire, baked, or broiled. people still licked their fingers at meals. the well-to-do had wax candles. tallow dips were used by the poor and for the kitchen. people drank cordials and homemade wines made with grapes, currants, oranges, or ginger. some mead was also drunk. 	tobacco, potatoes, tea, asparagus, kidney beans, scarlet runners, cardoons (similar to artichokes), horseradish, sugarcane, and turkeys for christmas, were introduced from the new world, china, and india. tea was a rare and expensive luxury. coffee was a new drink. with the cane sugar was made sweetened puddings, pies, and drinks. the potato caused the advent of distillation of concentrated alcohol from fermented potato mashes. there was a distiller's company by . distilleries' drinks had higher alcoholic content than wine or beer. 	the merchant adventurers sold in town stores silks, satins, diamonds, pearls, silver, and gold. there were women peddlers selling hats and hosiery from door to door and women shopkeepers, booksellers, alehouse keepers, linen drapers, brewers, and ale- wives. london had polluted air and water, industrial noise, and traffic congestion. 	work on farms was still year-round. in january and february, fields were ploughed and harrowed and the manure spread. also, trees and hedges were set, fruit trees pruned, and timber lopped. in march and april, the fields were stirred again and the wheat and rye sown. in may gardens were planted, hop vines trained to poles, ditches scoured, lambs weaned, and sheep watched for "rot". in june sheep were washed and sheared, and fields were spread with lime and clay, and manured. in july hay was cut, dried, and stacked. in august crops were harvested, which called for extra help from neighbors and townsmen who took holidays at harvesting. then there was threshing, and the sowing of winter wheat and rye. in the autumn, cider from apples and perry from pears might be made. by november the fall planting was finished and the time had come for the killing of cattle and hanging up their salted carcasses for winter meat. straw would be laid down with dung, to be spread next spring on the fields. stock that could not live outdoors in winter were brought into barns. 	government regulated the economy. in times of dearth, it ordered justices of the peace to buy grain and sell it below cost. it forbade employers to lay off workers whose products they could not sell. it used the star chamber court to enforce economic regulations. 	enclosures of land were made to carry on improved methods of tillage, which yielded more grain and more sheep fleece. drainage of extensive marsh land created more land for agriculture. waste land was used to breed game and "fowling" contributed to farmers' and laborers' livelihoods. killing game was not the exclusive right of landowners, but was a common privilege. the agricultural laborer, who worked for wages and composed most of the wage- earning population, found it hard to make ends meet. 	there were food riots usually during years of harvest failure, in which organized groups seized foodstuffs being transported or in markets. also, there were enclosure riots, in which organized groups destroyed hedges and fences erected in agrarian reorganization to restrict access to or to subdivide former common pasture land. these self- help riots were last resorts to appeals. they were relatively orderly and did not expand into random violence. the rioters were seldom punished more than a fining or whipping of the leaders and action was taken to satisfy their legitimate grievances. 	the poor came to resent the rich and there was a rise in crime among the poor. penal laws were frequently updated in an effort to bring more order. 	in , weekly wages for a mason were s. or s., for a laborer were s. or s., for a carpenter s. or s. an unskilled laborer received s. a day. 	there were conventions of paternalism and deference between neighbors of unequal social status. a social superior often protected his lessers from impoverishment for instance, the landlord lessened rents in times of harvest failure. a social superior would help find employment for a lesser person or his children, stand surety for a recognizance, intervene in a court case, or have his wife tend a sick member of his lesser's family. a social obligation was felt by most of the rich, the landlords, the yeomen farmers, and the clergy. this system of paternalism and social deference was expressed and reinforced at commonly attended village sports and games, dances, wakes and "ales" (the proceeds of which went to the relief of a certain person in distress), "rush-bearings", parish feasts, weddings, christenings, "churchings" to give thanks for births, and funerals. even the poor were buried in coffins. also there was social interaction at the local alehouse, where neighbors drank, talked, sang, and played at bowls or "shove goat" together. 	quarrelling was commonplace. for instance, borough authorities would squabble over the choice of a schoolmaster; the parson would carry on a long fight with parishioners over tithe hens and pigs; two country gentlemen would continue a vendetta started by their great-grandfathers over a ditch or hunting rights; the parishioners would wrangle with the churchwardens over the allocation of pews. the position of one's pew reflected social position. men tried to keep the pews of their ancestors and the newly prosperous wanted the recognition in the better pews, for which they had to pay a higher amount. but, on the other hand, farmers were full of good will toward their neighbors. they lent farm and kitchen equipment, helped raise timbers for a neighbor's new barn, sent food and cooked dishes to those providing a funeral feast and to the sick and incurable. 	village standards of behavior required that a person not to drink to excess, quarrel, argue, profane, gossip, cause a nuisance, abuse wife or children, or harbor suspicious strangers, and to pay scot and bear lot as he was asked. neighbors generally got along well and frequently borrowed and loaned small sums of money to each other without interest for needs that suddenly arose. bad behavior was addressed by the church by mediation and, if this failed, by exclusion from holy communion. there was also whipping and the stocks. 	marital sex was thought to be good for the health and happiness of the husband and enjoyable by wives. the possibility of female orgasm was encouraged. both women and men were thought to have "seed" and drank certain potions to cause pregnancy or to prevent birth. some argued that orgasm of both partners was necessary for the "seed" of the male and female to mix to produce pregnancy. most women were in a virtual state of perpetual pregnancy. both catholics and protestants thought that god wanted them to multiply and cover the earth. catholics thought that the only goal of sex was procreation. men were considered ready for marriage only when they could support a family, which was usually at about age . brides were normally virgins, but there was bridal pregnancy of about %. women usually married at about age . marriages were usually within one's own class and religion. the aristocracy often initiated matches of their children for the sake of continuity in the family estates and tried to obtain the consent of their children for the match in mind. the age of consent to marry was for boys and for girls. girls in arranged marriages often married at , and boys before they went to university. but the girls usually stayed with their parents for a couple of years before living with their husbands. if married before puberty, consummation of the marriage waited for such time. in other classes, the initiative was usually taken by the child. dowries and marriage portions usually were given by the parents of the bride. wet-nurses frequently were used, even by puritans. there were no baby bottles. many babies died, causing their parents much grief. about / of women's deaths occurred during childbirth. a child was deemed to be the husband's if he was within the four seas, i.e. not in foreign lands, for an agreed length of time. illegitimacy was infrequent, and punished by church-mandated public penance by the mother and lesser penance and maintenance by the father. the church court punished adultery and defamation for improper sexual conduct. 	the established church still taught that the husband was to be the authority in marriage and had the duty to provide for, protect, and maintain his wife. wives were to obey their husbands, but could also admonish and advise their husbands without reproach. in literature, women were portrayed as inferior to men intellectually and morally as well as physically. in reality wives did not fit the image of women portrayed by the church and literature. quarrels between husband and wife were not uncommon and were not stopped by a husband's assertion of authority. wives were very active in the harvesting and did casual labor of washing, weeding, and stone-picking. farmers' and tradesmen's wives kept accounts, looked after the garden, orchard, pigs, and poultry; brewed beer; spun wool and flax; and acted as agents in business affairs. wives of craftsmen and tradesmen participated actively in their husbands' shops. wives of weavers spun for their husband's employers. wives of the gentry ran their households with their husbands. the lady of a large mansion superintended the household, ordering and looking after the servants, and seeing to the education of her children. mothers handed down their recipes to their daughters. women still did much needlework and embroidering for clothing and house, such as cushions, screens, bed curtains, window curtains, hangings, footstools, book covers, and small chests of drawers for valuables. liking simplicity, puritan women did less of this work. 	naming one's wife as executor of one's will was the norm. jointures [property for a widow] were negotiated at the betrothal of ladies. widows of manorial tenants were guaranteed by law one-third of family real property, despite creditors. but most testators went beyond this and gave a life interest in the farm or family house. so it was customary for a widow to remain in occupation of the land until her death or remarriage. few widows or widowers lived with one of their children. widows usually had their husband's guild rights and privileges conferred upon them, e.g. to receive apprentices. in london, custom gave / of a deceased husband's estate to his wife on his death, but / if there were no children. the other part went according to his will. if a widow	 did not remarry in memory of her husband, she was esteemed. but remarriage was common because the life expectancy after birth was about years. 	sons of the well-to-do went into law, the church, the army, or the navy. if not fit for such, they usually went into a trade, apprenticing, for instance, with a draper, silk merchant, or goldsmith. sometimes a son was sent to the house of a great man as a page or esquire to learn the ways of courtiers and perhaps become a diplomat. 	the guild with its master and their employees was being replaced by a company of masters. 	james i ruled over both england and scotland. he had come from scotland, so was unfamiliar with english love of their rights, passion for liberty and justice, and extensive discussing of religion and quoting scripture. when he came to the throne, he had a conference with a group of puritans who asked for certain reforms: ceremonies such as the cross in baptism and the ring in marriage should not be used, only educated men competent to preach should be made ministers, bishops should not be allowed to hold benefices that they did not administer, and minor officials should not excommunicate for trifles and twelve-penny matters. he not only denied their requests, but had the english bible revised into the king james version, which was published in . this was to replace the popular geneva bible written by english protestant refugees from catholic queen mary's reign, which he did not like because some of its commentary was not highly favorable to kings. james didn't believe a king had to live by the law; he hadn't as king of scotland. he tried to imbue into england the idea of a divine right of kings to rule that he had held in scotland. the established church quickly endorsed and preached this idea. 	the selection of the clergy of the parish churches was now often in the hands of the parishioners, having been sold to them by the patron lord of the manor. some patrons sold the right of selection to a tradesman or yeoman who wished to select his son or a relative. some rights of selection were in the hands of bishops, the colleges, and the crown. the parish clergyman was appointed for life and removed only for grave cause. most parishioners wanted a sermon created by their minister instead of repetitious homilies and constant prayer. they thought that the object of worship in church was to rouse men to think and act about the problems of the world. 	in , the king mandated that clergymen quote scripture only in context of the book of articles of religion of or the two books of homilies and not preach any sermon on sunday afternoon except on some part of the catechism or some text out of the creed, ten commandments, or the lord's prayer. 	the puritan movement grew. about % of the protestants were puritans. these included country gentlemen and wealthier traders. they dressed simply in gray or other drab colors and wore their hair short to protest the fashion of long curls. they lived simply and disapproved of dancing because it induced lasciviousness and of theater because of its lewdness. theaters and brothels still shared the same neighborhoods, the same customers, and sometimes the same employees. prostitutes went to plays to find customers; men shouldered and shoved each other in competing to sit next to attractive women to get to know them. the puritans also disapproved of cock fights because they led to gambling and disorder, and maypole celebrations because of their paganism. there was less humor. many became stoics. the puritan church ceremonies were plain, with no ornamentation. puritans prayed several times a day and read the bible to each other in family groups to look for guidance in their conduct and life. they asked for god to intervene in personal matters and looked for signs of his pleasure or displeasure in happenings such as a tree falling close but not touching him, or his horse throwing him without injury to him. when there was an illness in the family or misfortune, they examined their past life for sins and tried to correct shortcomings. they circulated records of puritan lives including spiritual diaries. they believed in the equality of men and that a good man was better than a bad peer, bishop, or king. puritan influence made families closer and not merely dependent on the will of the husband or father. there was a sense of spiritual fellowship among family members as individuals. they emphasized the real need of a lasting love relationship between husband and wife, so a mutual liking that could develop into love between a young couple in an arranged match was essential. 	most puritans felt that the bishops were as tyrannical as the pope had been and that more reform was needed. they favored the presbyterian form of church government developed by john calvin in switzerland. the presbyter was the position below bishop. parishes were governed by boards consisting of a minister and lay elders elected by the parishioners. these boards sent elected representatives to councils. all lay elders and ministers had equal rank with each other. the calvinist god preordained salvation only for the elect and damnation and everlasting punishment for the rest of humanity, but the puritans had an optimism about avoiding this damnation. they believed that at his conversion a person received grace, which was a sign that he was predestined for salvation. they rejected all ecclesiastical institutions except as established by each parish over its own elected pastor and members. they rejected the established church's control from the top by bishops. they believed in negotiating directly with god for the welfare of the soul without the priest or church organization. 	the fear of witchcraft grew with puritanism. poor decrepit old defenseless women, often deformed and feeble-minded, were thought to be witches. their warts and tumors were thought to be teats for the devil to suck or the devil's mark. cursing or ill-tempers, probably from old age pains, or having cats were further indications of witchery. 	when the king learned in that the english puritans had prevented certain recreations after the sunday service, he proclaimed that the people should not be restrained from lawful recreations and exercise such as dancing, may-games, whitsunales, morris-dances, may-pole sports, archery for men, leaping, and vaulting. also women could carry rushes to decorate the church as they had done in the past. his stated purpose was to prevent people such as catholics from being deterred from conversion, to promote physical fitness for war, and to keep people from drinking and making discontented speeches in their ale houses. still unlawful on sunday were bear and bull baitings and bowlings. 	besides the puritans, there were other independent sects, such as the congregationalists, whose churches gathered together by the inspiration of jesus. this sect was started by english merchants residing in holland who set up congregations of englishmen under their patronage there; they kept minister and elders well under their control. the baptists emerged out of the independents. they believed that only adults, who were capable of full belief, and not children, could be baptized. they also believed that it was the right of any man to seek god's truth for himself in the scriptures and that obedience to the state should not extend beyond personal conscience. 	one fourth of all children born did not live to the age of ten, most dying in their first year. babies had close caps over their head, a rattle, and slept in a sturdy wood cradle that rocked on the floor, usually near the hearth. babies of wealthier families had nurses. the babies of ladies were suckled by wet nurses. parents raised children with affection and tried to prepare them to become independent self-sustaining adults. there was less severity than in tudor times, although the maxim "spare the rod and spoil the child" was generally believed, especially by puritans, and applied to even very young children. in disciplining a child, an admonition was first used, and the rod as a last resort, with an explanation of the reasons for its use. there were nursery rhymes and stories such as "little bo-peep", "jack and the beanstalk", "tom thumb", "chicken little", and robin hood and king arthur tales, and probably also "puss in boots", "red ridinghood", "cinderella", "beauty and the beast", "bluebeard" and aesop's fables. "little jack horner" who sat in a corner was a satire on the puritan aversion to christmas pudding and sense of conscious virtue. toys included dolls, balls, drums, and hobby horses. children played "hide and seek", "here we go around the mulberry bush", and other group games. school children were taught by "horn books". this was a piece of paper with the alphabet and perhaps a religious verse, such as the paternoster prayer, that was mounted on wood and covered with thin horn to prevent tearing. little girls cross-stitched the alphabet and numerals on samplers. block alphabets were coming into use. most market towns had a grammar school which would qualify a student for university. they were attended by sons of noblemen, country squires [poor gentlemen], merchants, and substantial yeomen, and in some free schools, the poor. school hours were from : a.m. to noon or later. multiplication was taught. if affordable, families had their children involved in education after they were small until they left home at about fifteen for apprenticeship or service. otherwise, children worked with their families from the age of seven, e.g. carding and spinning wool, until leaving home at about fifteen. 	there were boarding schools such as winchester, eton, westminster, st. paul's, and merchant taylors'. there, senior boys selected for conduct and ability supervised younger boys. they thereby got experience for a future in public life. the system was also a check on bullying of the weak by the strong. the curriculum included lilly's "grammar"; aesop; terence's roman comic plays; virgil's "aeneid", the national epic of rome; cicero's "letters" reflecting roman life; sallust's histories showing people and their motives; caesar's "commentaries" on the gallic and civil wars; horace's "epistles" about life and poetry; poet ovid's "metamorphoses" on adventures and love affairs of deities and heroes, "fasti" on roman religious festivals and customs; donatus' grammar book; and other ancient latin authors. football, with hog bladders, and tennis were played. these schools were self-supporting and did their own farming. 	private schools for girls were founded in and around london. they were attended by daughters of the well-to-do merchant class, nobility, and gentry. they were taught singing, playing of instruments, dancing, french, fine sewing, embroidery, and sometimes arithmetic. there were not many girls' boarding schools. fewer served in the house of some noble lady as before. most commonly, the sons and daughters of gentlemen and nobles were taught by private tutors. a tutor in the house educated the girls to the same extent as the boys. frequently, the mother educated her daughters. a considerable number of girls of other backgrounds such as the yeomanry and the town citizenry somehow learned to read and write. 	boys began at university usually from age to , but sometimes as young as . the universities provided a broad-based education in the classics, logic and rhetoric, history, theology, and modern languages for gentlemen and gave a homogenous national culture to the ruling class. there was a humanist ideal of a gentleman scholar. the method of study was based largely on lectures and disputations. each fellow had about five students to tutor. in many cases, he took charge of the finances of his students, paying his bills to tradesmen and the college. his reimbursement by the students' fathers put them into friendly contact with the family. the students slept in trundle beds around his bed and had an adjacent room for study. aristotle, whose authority was paramount, remained the lynch pin of university studies, especially for logic and dialectic. the study of rhetoric was based on quintilian, the latin writer, and the greek treatise of hermogenes of tarsus. also studied was cicero's orations as models of style. examination for degrees was by disputation over a thesis of the student. the b.a. degree was given after four years of study, and the m.a. after three more. there were advanced degrees in civil law, which required seven more years of study, medicine, seven years, divinity, more than seven years, and music. many of the men who continued for advanced degrees became fellows and took part in the teaching. most fellowships were restricted to clerics. oxford and cambridge universities operated under a tutorial system. access to grammar schools and universities was closed to girls of whatever class. oxford university now had the bodleian library. in the universities, there were three types of students: poor scholars, who received scholarships and also performed various kinds of service such as kitchen work and did errands for fellows such as carrying water and waiting on tables; commoners, who paid low fees and were often the sons of economical gentlemen or businessmen; and the fellow commoners, a privileged and well-to-do minority, usually sons of noblemen or great country gentlemen. the fellow commoners paid high fees, had large rooms, sometimes had a personal tutor or servant, and had the right to eat with the fellows at high table. here, gentlemen made friends with their social equals from all over the country. students wore new- fashioned gowns of many colors and colored stockings. they put on stage plays in latin and english. the students played at running, jumping, and pitching the bar, and at the forbidden swimming and football. they were not to have irreligious books or dogs. cards and dice could be played only at christmas time. students still drank, swore, and rioted, but they were disallowed from going into town without special permission. those below a b.a. had to be accompanied by a tutor or an m.a. they were forbidden from taverns, boxing matches, dances, cock fights, and loitering in the street or market. sometimes a disputation between two colleges turned into a street brawl. punishment was by flogging. each university had a chancellor, usually a great nobleman or statesman, who represented the university in dealings with the government and initiated policies. the vice-chancellor was appointed for a year from the group of heads of college. he looked out for the government of halls, enforced the rules of the university, kept its courts, licensed wine shops, and shared control of the town with the mayor. 	tutors were common. they resided at the boy's house or took boys to board with them at their houses in england or on the continent. the tutor sometimes accompanied his student to grammar school or university. puritans frequently sent their sons to board in the house of some frenchman or swiss protestant to learn the calvinist doctrines or on tour with a tutor. certain halls in the universities were predominately puritan. catholics were required to have their children taught in a home of a protestant, a relative if possible. 	the inns of court were known as "the third university". it served the profession of law, and was a training ground for the sons of nobility and the gentry and for those entering the service of the commonwealth. the inns were self-governing and ruled by custom. students were to live within the inn, two to a room, but often there were not enough rooms, so some students lived outside the quadrangles. every student was supposed to partake of commons or meals for a certain fraction of the year - from eight weeks to three months and there to argue issues in cases brought up by their seniors. in hall the students were not allowed to wear hats, though caps were permitted, nor were they to appear booted or spurred or carrying swords. for the first two years, they would read and talk much of the law, and were called clerks commoners. after two years they became mootmen or inner barristers. in five or six years they might be selected to be called to the bar as utter barristers, whose number was fixed. there was no formal examination. the utter barrister spent at least three more years performing exercises and assisting in directing the studies of the younger men. after this time, he could plead in the general courts at westminster, but usually carried on law work in the offices of other men and prepared cases for them. participating in moots (practice courts) was an important part of their education. lectures on statutes and their histories were given by readers. 	physicians were licensed by universities, by the local bishop, or in london, by the college of physicians and surgeons. most were university graduates, and because of the expense of the education, from well-to-do families. for the b.a., they emphasized greek. for the m.a., they studied the works of greek physicians galen and hippocrates, roman physician claudius, and perhaps some medieval authorities. after the m.a., they listened to lectures by the regius professor of medicine and saw a few dissections. three years of study gave them a m.b., and four more years beyond this the m.d. degree. a physician's examination of a patient cost s. the physician asked about his symptoms and feelings of pain, looked at his eyes, looked at his body for spots indicative of certain diseases, guessed whether he had a fever, felt his pulse, and examined his urine and stool. there were no laboratory tests. smallpox was quickly recognized. wrapping red cloth around the person and covering the windows with red cloth being promoted healing without scarring. gout was frequent. syphilis was common in london and other large centers, especially in court circles. it was ameliorated by mercury. an imbalance of the four humors: blood, phlegm, choler, bile was redressed by bloodletting, searing, draining, and/or purging. heart trouble was not easily diagnosed and cancer was not recognized as a life-threatening disease. childbirth was attended by physicians if the patient was well-to-do or the case was serious. otherwise women were attended only by midwives. they often died in childbirth, many in their twenties. 	a visit by a physician cost s. d. melancholia, which made one always fearful and full of dread, and mania, which made one think he could do supernatural things, were considered to be types of madness different from infirmities of the body. despite a belief held by some that anatomical investigation of the human body was a sin against the holy ghost, physicians were allowed to dissect corpses. so there were anatomy textbooks and anatomy was related to surgery. barber-surgeons extracted teeth and performed surgery. the white and red striped barber pole initially indicated a place of surgery; the red represented blood and the white bandages. 	the theory of nutrition was still based on the four humors and deficiency diseases were not understood as such. physician william harvey, son of a yeoman, discovered the circulation of the blood from heart to lungs to heart to body about . he had studied anatomy at padua on the continent and received an m.d. there and later at cambridge. then he accepted a position at the hospital of st. bartholomew to treat the poor who came there at least once a week for a year. he agreed to give the poor full benefit of his knowledge, to prescribe only such medicines as should do the poor good without regard to the pecuniary interest of the apothecary accompanying him, to take no reward from patients, and to render account for any negligence on his part. he also dissected animals. one day he noted when stroking downward on the back of one hand with the finger of the other, that a vein seemed to disappear, but that it reappeared when he released his finger. he surmised that there was a valve preventing the blood�s immediate return to the vein. then he ascertained that the heart was a pump that caused pulses, which had been thought to be caused by throbbing of the veins. he tied the arteries and found that the arterial blood flowed away from the heart. he tied the veins and found that venal blood flowed into the heart. he found that the blood flowed from the lungs to the left side of the heart, and from thence was pumped out to the body. blood also flowed from the body to the right side of the heart, from which it was pumped to the lungs. the two contractions closely followed one another, rather than occurring at the same time. the valves in the veins prevented backflow. it was now clear why all the blood could be drained away by a single opening in a vein. it was also clear why a tight ligature, which blocked the arteries, made a limb bloodless and pale and why a looser ligature, which pressed only on the veins, made a limb swell turgid with blood. multiplying an estimate of the amount of blood per beat with the number of beats, he concluded that the amount of blood did not change as it circulated. he concluded that the only purpose of the heart was to circulate the blood. this diminished the religious concept that the heart was the seat of the soul and that blood had a spiritual significance and was sacred. 	the physicians turned surgery over to the surgeons, who received a charter in by which barbers were excluded from all surgical work except bloodletting and the drawing of teeth. surgeons dealt with skin disease, ulcers, hernia, bladder stones, and broken bones, which they had some skill in setting. they performed amputations, which were without antiseptics or anesthesia. internal operations usually resulted in death. caesarian section was attempted, but did not save the life of the mother. apprenticeship was the route to becoming a surgeon. a college of surgeons was founded. students learned anatomy, for which they received the corpses of four executed felons a year. 	the apothecaries and grocers received a charter in , but in , the apothecaries were given the sole right to purchase and sell potions, and to search the shops of grocers and stop the sale by them of any potions. in london, the apothecaries were looked over by the college of physicians to see that they were not selling evil potions or poisons. in was the first pharmacy book. 	there were three hospitals in london, two for the poor, and bedlam [bethlehem] hospital for the insane. others were treated at home or in the physician's home. 	theaters were shut down in times of plague to prevent spread of disease there. towndwellers who could afford it left to live in the country. 	shakespeare wrote most of his plays in this period. most popular reading was still bibles, prayer books, psalm books, and devotional works. also popular were almanacs, which started with a single sheet of paper. an almanac usually had a calendar; information on fairs, roads, and posts; farming hints; popularized scientific knowledge; historical information; sensational news; astrological predictions; and later, social, political, and religious comment. many households had an almanac. books tried to reconcile religion and science as well as religion and passion or sensuality. walter ralegh's "history of the world", written while he was in prison, was popular. ben johnson wrote poetry and satiric comedies. gentlemen read books of manners such as james cleland's "institution of a young noble man" ( ). in , the first regular weekly newspaper was started. 	although there was a large advance in the quality of boys' education and in literacy, the great majority of the people were unable to read fluently. since writing was taught after one could read fluently, literacy was indicated by the ability to sign one's name. almost all gentlemen and professional men were literate. about half the yeomen and tradesmen and craftsmen were. only about % of husbandmen, laborers, servants, and women were literate. 	the elizabethan love of madrigal playing gradually gave way to a taste for instrumental music, including organs and flutes. the violin was introduced and popular with all classes. ballads were sung, such as "barbary allen", about a young man who died for love of her, after which she died of sorrow. when they were buried next to each other, a rose from his grave grew around a briar from her grave. the ballad "geordie" relates a story of a man hanged for stealing and selling sixteen of the king's royal deer. the ballad "matty groves" is about a great lord's fair young bride seducing a lad, who was then killed by the lord. in the ballad "henry martin", the youngest man of three brothers is chosen by lot to turn pirate to support his brothers. when his pirate ship tries to take a merchant ship, there is sea fight in which the merchant ship sinks and her men drown. the ballad "the trees they do grow high" tells of an arranged marriage between a year old woman and the year old son of a great lord. she tied blue ribbons on his head when he went to college to let the maidens know that he was married. but he died at age , after having sired a son. 	may day was a holiday with dancing around a maypole and people dressed up as characters such as queen of the may, robin hood, little john, friar tuck, maid marion, the fool, and the piper. new year's day was changed to january st. 	golf was played in scotland, and james introduced it into england. james i was the last monarch to engage in falconry. 	francis bacon wrote the "advancement of learning" and "novum organum" (new learning) in which he encouraged the use of the inductive method to find out scientific truths and also truths in general, that is reasoning from a sample to the whole. according to him, the only way to arrive at the truth was to observe and determine the correlations of facts. he advocated a process of elimination of hypothesized ideas. first, experiments were made, then general conclusions were drawn from them, and then these generalizations were tested in further experiments. his "new learning" showed the way out of the scholastic method and reverence for dogma into the experimental method. he wrote "natural and experimental history". he studied the effect of cold in preventing animal putrefaction. 	by this time, what was known about mathematics included fractional exponents, trigonometry in terms of arcs of angles, long division, square root symbol, decimal fractions, methods for solving cubic equations, trigonometry in terms of ratios of sides of a right triangle, equal sign, plus and minus signs, and a consistent theory of imaginary numbers. 	john napier, a large calvinist landholder in scotland who had built his own castle, did mathematics in his older years. he explored imaginary numbers, which involve square roots of negative numbers. by , he had started and developed the theory of logarithms: the relationships among positive and negative exponents of numbers. this simplified calculations because the multiplication and division of numbers with a common base could be done by addition and subtraction of their exponents. his table of logarithms, which took him twenty years to compile, was used in trigonometry, navigation, and astronomy. it reduced the enormous labor involved in trigonometric calculations. in , willliam oughtred invented the slide rule for calculations. 	galileo galilei was a professor of mathematics at the university of padua in italy and was later a protege of the powerful medici family. he conducted experiments, e.g. throwing objects off the tower of pisa in to show that all, whether light or heavy, fall at the same rate. this disproved the widely held belief that heavier objects fall faster than light objects. he reasoned by induction from experiments that the force of gravity has the same effect on all objects regardless of their size or weight. his law stated that the speed of their descent increases uniformly with the time of the fall, i.e. speed [velocity] = gravity's acceleration multiplied by time. this was a pioneering mathematization of a physical phenomenon. 	from his observation that an object sliding along a plane travels increasingly farther and slows down at a decreasing rate as the surfaces become smoother and more lubricated, he opined that the natural state of a body in motion is to stay in motion, and that it is slowed down by a resistant force, which he called �friction�. he conceived of the air giving a frictional force to an object moving through the air. from his experiments showing that a rolling ball rolls up a plane farther the lesser the slope of the plane, he intuited that if the plane were horizontal, the ball would never stop rolling except for friction. he opined that bodies that are at rest stay at rest and bodies that are in motion stay in uniform motion (�inertia�), unless and until acted upon by some force. this was a radical departure from aristotle's theory that any horizontal motion requires a prime mover. galileo drew a graph of distance versus time for the rolling ball, which indicated that the distance traveled was proportional to the square of the time elapsed. 	he put his ideas of vertical and horizontal motion together to explain the movement of projectiles, which travel horizontally, but also fall downward vertically. he realized that the movement of a projectile involved a horizontal impetus of projection and a vertical force of gravity, each being independent of the other, but acting simultaneously, instead of sequentially. he demonstrated that a projectile follows the path of a parabola, instead of a straight line, and that it descends a vertical distance which is proportional to the square of the time taken to fall. that is, a thrown object will strike the ground in the same amount of time as an object simply dropped from the same height. this suggested that gravity was a constant force. 	galilieo described mathematically the motion of a lever such as a seesaw in which the weight on one side multiplied by its distance from the fulcrum is equal to the weight on the other side multiplied by its distance from the fulcrum. 	galileo determined that a pendulum, such as a hanging lamp, swings back and forth in equal intervals of time. he measured this time with water running through a tube; the weight of the water was proportional to the time elapsed. also, pendulums with equal cord length swing at the same rate, regardless of the substance, weight, or shape of the material at the end. so a pendulum could be a mechanical clock. galileo knew that ice floated on water because ice is less dense and therefore lighter than water. it had formerly been thought that ice was heavier than water, but floated on water because of its shape, especially broad, flat-bottomed pieces of ice. 	the telescope was invented in . the next year, galileo built a greatly improved telescope to observe bodies in the skies. he observed that the spots on the moon had shifting illumination and that the moon's perimeter had a jagged outline. from this he deduced that the surface of the moon had mountains, valleys, and craters much like the earth, and was illuminated by reflected light. he noticed that the planet jupiter had moons orbiting it in a manner similar to the orbit of the earth's moon. he observed that when the planet venus was very small it had a round shape and when it was very large, and therefore nearer the earth, it had a crescent shape. also, venus progressed through periodic phases of increasingly wide crescent shapes in a manner similar to the phases of crescent shapes of the earth's moon. he realized that these features of venus could be explained only if venus revolved around the sun, rather than around the earth. this finding added credence to the copernican theory that the earth and all planets revolve around the sun. but church doctrine that the sun revolved around the earth was supported by the biblical story of god making the sun stand still to give additional sunlight on a certain day so a certain task could be completed that day. galileo argued against a literal interpretation of the bible, so he was denounced by the church. his finding of sunspots on the sun conflicted with church doctrine that the celestial bodies such as the sun were perfect and unblemished. his observation that certain sun spots were on certain locations of the sun, but changed location over time, suggested that the sun might be rotating. he observed that when air was withdrawn by a suction pump from the top of a long glass tube whose lower open end was submerged in a pan of water, the water rose to a height of feet and no higher. this result indicated that the evacuated space above the water was a vacuum: an empty space. the notion of a vacuum, a space where there is nothing or void, was difficult for philosophers to accept. they believed that nature abhored a vacuum and would prevent it. about , galileo invented the first thermometer by heating air at the top of a tube whose open end was in a bowl of water; as the top end cooled, the air contracted and water rose part way up the tube; the column of water rose or fell with every change of temperature. galileo invented the compound refracting microscope, which used more than one lens, about . 	galileo's book on the arguments for and against the copernican theory was unexpectedly popular when published in . the general public was so persuaded by the arguments that the earth revolved around the sun that papal authority felt threatened. so galileo was tried and convicted of heresy and sentenced to house arrest as an example to others who might question church doctrine, even though the seventy year old galileo recanted and some of the inquisition judges who convicted him believed the copernican theory and their decision did not assert the contrary. 	johannes kepler was a mathematician from germany who made his living as an astrologer. he was in contact with galileo by letter, as most scientists of europe were with each other. kepler was fascinated with perfect geometric shapes, which he tried to relate to celestial phenomenon. he discerned that the orbit of mars was not perfectly circular. he knew that the apparent path of the sun with respect to the constellation of fixed stars differed in speed at different times of the year. he opined that this showed that the speed of the earth revolving around the sun varied according to the time of year. then he measured the angles between the earth and the sun and the earth and mars as they changed through the martian year. he noted when the earth, mars, and the sun were on the same straight line. then he deduced the earth's true orbit, and from this the true orbits of the other planets. then by trial and error, he attempted to match this empirical data with regular mathematically defined shapes, until he discovered in that these paths were elliptical. also, the planets each move faster when they are nearer the sun and more slowly when they are farther from the sun so that in equal time intervals, a line from the planet to the sun will sweep out equal areas. this observation led him to opine that there is a force between the sun and each planet, and that this force is the same as that which keeps the moon in its orbit around the earth. thirdly, in , he found that the square of the time for each planet's orbit about the sun is proportional to the cube of that planet's mean distance from the sun, so that the farther planets orbit at a slower speed. he connected the earth's tides with the gravitational pull of the moon. kepler also confirmed that the paths of comets were governed by a law and were farther from the earth than the moon. this contradicted the church's explanation that what lies within the moon's orbit pertains to the earth and is essentially transitory and evil, while what lies beyond belongs to the heavens and is permanent and pure. 	renee descartes, a french mathematician, scientist, and philosopher, had a revelation that the structure of the universe was mathematical and that nature obeyed mathematical rules. in , he invented analytic [cartesian] geometry, in which lines and geometric shapes can be described by algebraic equations and vice-versa. all conic sections: circles, ellipses, parabolas, and hyperbolas, could be represented by equations with two unknowns, or variables, on a coordinate system in which each point is represented by a pair of numbers representing distances from the two axis lines. an algebraic equation with two unknowns, could be represented as a shape thereon. an algebraic equation with one unknown represented a straight line thereon. the points of intersection geometrically were equivalent to the common solution of the associated algebraic equations. he started the convention of representing unknown quantities by x, y, and z and known quantities by a, b, and c. so, for instance, a circle with center at point , and a radius of was represented by the equation: (x- ) squared + (y- ) squared = . he pioneered the standard exponential notation for cubes and higher powers of numbers. analytic geometry aided in making good lenses for eyeglasses. the glass was first manufactured with attention to quality. then, after it cooled and solidified, the clearest pieces were picked and their surfaces ground into the proper curvature. 	descartes formulated the law of refraction of light, which deduces the angle of refraction [deflection] of light through a medium from the lights' angle of incidence and the speed of light in each media in which the light passes. this explained why a rainbow is circular. in , he described the universe in terms of matter and motion and suggested that there were universal laws and an evolutionary explanation for such. he opined that all effects in nature could be explained by spatial extension and motion laws that ) each part of matter retains the shape, size, motion, or rest unless collision with another part occurs; ) one part of matter can only gain as much motion through collision as is lost by the part colliding with it; and ) motion tends to be in a straight line. descartes feared persecution by the church because his ideas did not correlate with the biblical notion of god's creation of the universe in the order of light, then sky and oceans and dry land, then plants, then seasons and the sun and moon and stars, then fish and birds, then all animals, and finally man. descartes believed in a good and perfect god, and thought of the world as divided into matter and spirit. the human mind was spirit and could exist outside the human body. without the mind, human body was a machine. the human mind had knowledge without sense experience, e.g. the truths of mathematics and physics. ideas and imagination were innate. his observation that sensory appearances are often misleading, such as in dreams or hallucinations, led him to the conclusion that he could only conclude that: "i think, therefore i am." he rejected the doctrine that things had a proper behavior according to their natures, e.g. the nature of acorns is to develop into oak trees. as an example of erroneous forming of conceptions of substance with our senses alone, he pointed out that honeycomb has a certain taste, scent, and texture, but if exposed to fire, it loses all these forms and assumes others. he considered to be erroneous the belief that there are no bodies around us except those perceivable by our senses. he was a strong proponent of the deductive method of finding truths, e.g. arguing logically from a very few self- evident principles, known by intuition, to determine the nature of the universe. 	christian huygens, a dutch physicist, used the melting and the boiling point of water as fixed points in a scale of measurements, which first gave definiteness to thermometric tests. 	there was much mining of coal, tin, copper, lead, and iron in the s. coal was transported from the coal pits down to the rivers to be loaded onto ships on coal wagons riding on wooden rails. the full coal cars could then be sent down by gravity and the empty wagons pulled up by horses. sheet metal, e.g. lead, was used for roofing. coal was much used for heating houses, and for laundry, cooking, and industrial use, such as extraction of salt, soap boilers, and manufacture of glass, bricks and tiles for buildings, anchors for ships, and tobacco pipes. it was used in the trades: bakers, confectioners, brewers, dyers, sugar refiners, coopers, starch makers, copper workers, alum makers, and iron workers. 	in the haberdashers, who sold imported felt for hats, got a charter of incorporation. 	a tapestry factory was established in . 	flax-working machines came into existence. 	the royal postal system carried private as well as royal letters, to increase income to the crown. postmasters got regular pay for handling without charge the mail of letters that came from or went to the letter office in london. the postmaster kept horses which he let, with horn and guide, to persons riding "in post" at d. per mile. the post was to travel mph in summer and mph in winter and sound his horn four times in every mile or whenever he met travelers. 	wool and animals for butchering were sold in london with the sellers' agent in london taking the proceeds and paying out to their order, the origin of check writing. 	scriveners drew up legal documents, arranged mortgages, handled property transactions, and put borrowers in touch with lenders. they and the goldsmiths and merchants developed promissory notes, checks, and private paper money. 	the influx of silver from the new world was a major factor in the second great inflation in england and in the devaluation of money to about one third of what it had been. also contributing to the inflation was an outracing of demand over supply, and a debasement of the coinage. this inflation benefited tenants to the detriment of their lords because their rents could not be adjusted upward. 	there was an increase in bankruptcies. houses of correction were built. 	as attorney general, edward coke was impassioned and melodramatic. he once described the parts of the penalty of treason as follows: being drawn to the place of execution reflected the person's not being worthy any more to tread upon the face of the earth; being drawn backward at a horse tail was due to his retrograde nature; being drawn head downward on the ground indicated that he was unfit to breathe the common air; being hanged by the neck between heaven and earth indicated that he was unworthy of either; being cut down alive and his privy parts cut off and burnt before his face indicated he was unworthily begotten and unfit to leave any generation after him; having his bowels and inners taken out and burnt indicated he had inwardly conceived and harbored such horrible treason; his head cut off, which had imagined the treason, and his body to be quartered and the quarters set up to the view and detestation of men a prey for the fowls of the air. coke was subsequently elevated to the position of chief of common pleas and then to chief of the king's bench. but there coke propounded a doctrine of the supremacy of the law over the king as well as over parliament. for instance, coke would not agree to stay any case in which the king had a concern in power or profit, to consult with him. but the other eleven justices did agree. since james i believed in the divine right of kings, he therefore dismissed coke from his position as chief justice of the king's bench. james even believed that he could suspend any law for reasons known only to him and issue proclamations that were not limited to the reinforcement of old laws, but made new offenses with punishment of fine and/or imprisonment. the old writ of habeas corpus [produce the body] had been just to bring to court those persons needed for proceedings, but coke in had cited the writ with a new meaning "to have the body together with the cause of detention". 	coke then became a member of parliament and led the commons, where he exalted the authority of parliament vis a vis the king; that is, the king could not make any changes in law, religion, or taxation without consent of parliament. james arrested coke and two other members of the commons and put its leader john pym under house arrest for their outspoken opinions against the king's intended alliance with catholic spain and intended taking of a spanish wife. because of the deadlock that developed between the king and parliament, certain matters could not be addressed by legislation and were left to be decided judicially. this made judicial review of disputes important. 	james vastly increased the number of peerages, selling many, for example for , pounds. since there was a tacit understanding that members of parliament would not accept remuneration, this restricted eligibility for membership to the rich. the house of commons was composed mostly of attorneys, merchants from the large towns, and country gentlemen. the gentry members had pounds [ , s] annual income from land and the burgess members had pounds [ , s.]. there were two knights from every county, elected by men holding at least forty-shilling freeholds; four representatives from london, and one or two from every other borough, generally elected by the top business families�; and a representative from each of the two universities. for speaker, they always chose someone suggested to them by the crown. he decided who would talk and could hasten or delay bills, usually for the benefit of the crown. the clerk, a lifetime appointment of the crown, wrote out the bills and their amendments and kept track of proceedings. many in the commons were puritan in sympathy. in , the house of commons developed a committee system to avoid being presided over by the royally designated speaker. a committee could consist of all the members of the house of commons with an elected chairman. an increasing number of issues were discussed in committee before coming to the commons and the commons came to ratify readily what had been done in committee. 	by , there had developed in the house of commons an opposition to feudal tenures, purveyance, wardships, and impositions (special import and export duties on aliens set by the king without the consent of parliament that were supposed to be for the purpose of regulating trade instead of for revenue). there was also a call for free speech and an end to the king's habit at the end of parliament of imprisoning for a time those who had been too outspoken. the commons also asserted itself into foreign affairs by expressing an opinion against a treaty proposed by the king on which war could ensue. the treaty was abandoned. in london, organized groups such as the apothecaries, the skinners, and the grocers, were circulating printed statements of their cases to members of committees of the house of commons rather than just seeking out a friendly privy council member. in , the protests made to committeemen about monopolies sold by james frightened him into canceling many of them. he had made many grants against competition in violation of law. the right of the commons to expel a member was asserted by the expulsion of a monopolist. by , the speeches of prominent members and the course of proceedings were copied by stationers and sold in a weekly news report. 	the king's privy council dealt constantly with foreign affairs, and also with the great companies, and problems arising such as gold leaving the country, the dutch ships increased efficiency in transporting goods, the declining market for english cloth, strikes in the mining industry, decaying harbor works, the quality of food and drink, the wrongs done to the poor, and above all, the general peace and order. they formed commissions to study situations and sent orders to justices of the peace on methods to address certain problems and to sheriffs to carry out certain acts. about , a group within the privy council began to concentrate on foreign affairs, especially "cabinet counsels", that is, with secret matters. james sold high offices of state to supplement his income. his income from customs had increased so much that it was now three times that from crown lands. 	the sheriff looked after crown lands and revenues in his county. he gathered the rents, the annuities, the stray animals, the deodands, the fees due to the king, the goods of felons and traitors. he was still a means of communication between the privy council and the county. he announced new statutes of parliament and proclamations by the king at the county courts and in the markets. he used posse comitatus to disperse riots. he was the functionary of the assize court, impaneling its juries, bringing accused men before it, and carrying out its penalties. he carried out elections of members of the house of commons. 	there were two high constables for each hundred. they were chosen by the justices of the peace at quarter sessions, and were usually small gentry or well-to-do yeomen. they were the intermediaries between the justices and the petty constables. the petty constable was the executive official of the village. he was usually elected by the suitors to the leet court of the manor for a year. he might be a farmer, an artisan, a carpenter, a shoemaker, or many times a tradesman, a butcher, or baker. he often visited the alehouse to learn of any trouble in the making. he would intervene in quarrels and riots and tell the participants to desist in the king's name. if they didn't, he could call on all bystanders to help him "force a quiet". he had to lead the rioters and causers of injuries to others, hold them there until he could bring him before the nearest justice. he would inform the justice of plots to trespass or forcibly enter land to take possession. he saw to it that no new cottages were built in the villages without due authority. he supervised markets and inns. he reported lapses of care for apprentices by their masters to the justice. at harvest time, he called upon all able bodied persons to assist and punished those who didn't respond by putting them in the stocks or fining them forty shillings. he arrested and whipped vagrants and sturdy rogues and sent them back to their place of birth through constables on the way. if a horse was stolen, he raised the hue and cry to all neighboring constables. he made inquiry into the paternity of the coming child of an unmarried pregnant girl to make him take responsibility for the child and pay her d. a week lest it fall into the responsibility of the village. in a town, he might have watchmen to help him see that the streets were peaceful at night. the constable assisted the justice of the peace, the high constable, and the sheriff. he pressed men into military service. he collected taxes for the sheriff and collected the money for purveyance, the money for the poor, maimed soldiers, and various kinds of prisoners, which the parish had to pay. he was often the spokesman for the village in village concerns, such as too many alehouses, brought to the attention of justices at quarter sessions. the constable and churchwardens together collected money for the parish, looked after the needy, and kept in close touch with the overseers of the poor, who cared for the sick and old, found work for the idle, took charge of bastards, apprenticed orphan children, and provided supplies for the workhouse. 	in the east india company was given a monopoly by the crown that was indefinitely long as long as it was profitable to the realm in the king's opinion. interlopers were to forfeit their ships and goods, one-half to the company and one-half to the crown. monopoly status made the company competitive with the dutch and portuguese monopoly companies. the crown received a gift or a loan from the company in return. at first, the company raised capital for each separate voyage. but voyages tried to undercut each other and rival factions squabbled over cargoes. so the company then raised a "terminable joint-stock" for a period of years. the first of these was issued in - and financed a fleet every year for four years. subscriptions were called in by yearly installments and dividends paid out yearly. the voyage of brought shareholders a profit equivalent to about % a year. by , the company operated thirty to forty "tall ships", many built in its own dockyards. these dockyards were so technologically advanced that they were daily viewed by visitors and ambassadors. here, besides wet and dry docks, there were timber yards, a foundry and cordage works for supplying the ships' hardware and a bakery and saltings for their provisioning. more than craftsmen were directly employed in the yard. overall the company was one of london' largest employers. 	in , the muscovy company, hired henry hudson to find a northwest passage through north america to the pacific ocean. i	n , the first charter of the virginia company was issued for trading purposes. it gave the settlers "all liberties, franchises, and immunities" they had in england. to oversee this colony, the crown appointed a council. virginia established the episcopal church by law. virginia became a joint-stock company in . but exports were few (timber, soap ashes, pitch, tar, and dyes) for several years, and then tobacco emerged as a source of profit. king james imposed a heavy duties on imported tobacco because it corrupted man's breath with a stinking smoke. 	life was difficult for puritan separatists, who wanted to separate from the established church. they were imprisoned and their houses were watched day and night for illegal meetings. in , after trying holland and when there was a depression in england, a few puritan separatists, along with other pilgrims, left for virginia in the mayflower, but landed in new england and founded plymouth colony. they were led by william bradford and william brewster, their spiritual leader. they planted fields and made friends with the indians. in , they secured a patent to the merchants and planters together for a voluntary joint-stock company in new england. later, it became the self-governing massachusetts bay colony. 	the canons of the church of provided for excommunication for anyone who propounded that the king did not have the same authority in ecclesiastical matters as the godly kings among the jews and christian emperors in the primitive church, that the church of england was not a true and apostolic church, that worship according the book of common prayer and administration of sacraments was corrupt or superstitious, or that other methods of the church were wicked, unchristian, or superstitious. 	church sanctuary was abolished for those accused of criminal offenses because it had been abused by thieves paying their rent by thieving at night. it remained available to those accused of civil offenses. 	about % of the population was catholic, although it was against the law to practice this religion. indeed it long been the practice to sequester their lands, punish them for going to mass, fine them for not attending the established church, banish their priests, and imprison those who aided priests. there was a catholic plot in to blow up parliament and the king with gunpowder and to restore catholicism as the state religion with a catholic king. it was discovered and the conspirators were executed. then there was a crackdown on catholics, with houses being searched for hiding places for priests. also, legislation was passed barring catholics from many offices. - the law - 	churchwardens of every parish shall oversee the poor in their parish. they shall, with consent of the justices of the peace, set to work children whose parents cannot maintain them and also set to work married or unmarried persons who have no trade and no means to maintain themselves. churchwardens shall tax every inhabitant, including parson and vicar and every occupier of land and houses, as they shall think fit. there will be a convenient stock of flax, hemp, wool, thread, iron and other necessary ware and stuff to set the poor on work. there will be competent sums of money for the relief of the lame, impotent, old, blind, and others not able to work, and also for the putting out of children to be apprentices. child apprentices may be bound until years of age or until time of marriage. they shall account to the justices of the peace for all money received and paid. the penalty for absence or neglect is s. if any parish cannot raise sufficient funds, the justices of the peace may tax other nearby parishes to pay, and then the hundred, and then the county. grandparents, parents, and children of every poor, old, blind, lame, or impotent person not able to work, being of sufficient ability, shall at their own charge, relieve and maintain every such poor person in that manner and according to that rate as justices of the peace of that county determine, or else forfeit s. per month. two justices of the peace may commit to gaol or house of correction persons refusing to work and disobedient churchwardens and overseers. the overseers may, with the consent of the lord of the manor, build houses on common or waste land for the poor at the expense of the parish, in which they may place more than one family in each house. 	every parish shall pay weekly - d. toward the relief of sick, hurt, and maimed soldiers and mariners. counties with more than fifty parishes need pay only - d. the county treasurer shall keep registers and accounts. soldiers begging shall lose their pension and shall be adjudged common rogues or vagabonds subject to imprisonment and punishment. 	a seminal patent-protection law was passed in . it stated that all monopolies to any person or persons, bodies politic or corporate for the sole buying, selling, making, working, or using of anything within the realm are void. this does not include london or towns. parties aggrieved by such may recover treble damages in the superior courts, with double costs. excepted are existing patents, for years or less, for new inventions and for future patents for years or less. excepted also are patents for printing or making saltpeter, gunpowder, shot or ordinance, etc.; patents concerning allum mines or newcastle coal or glass making or export of calves' skins or making smalts [deep-blue pigment or glass] or melting iron ore; grants of office; and licenses for taverns. 	persons stealing crops from lands or fruit from trees shall be whipped. 	every person shall receive the holy communion in church at least once a year or else forfeit pounds for the first year and pounds for the second year, and threescore pounds for every year after until he takes the said sacrament. 	every person convicted of drunkenness shall be penalized s. or else placed in the stocks for six hours, because the loathsome and odious sin of drunkenness has grown into common use lately and it is the root of many other sins, such as bloodshed, stabbings, murder, swearing, fornication, and adultery, and is detrimental to the arts and manual trades and diverse workmen, who become impoverished. offenders convicted a second time shall be bound with two sureties to the sum of s. 	lewd women, having bastards, chargeable to the parish, shall be committed to the house of correction to be punished and set to work for one year. 	mothers concealing the death of a bastard baby shall suffer as for murder, unless one witness proves the child was born dead. 	persons deserting their families shall be deemed incorrigible rogues and punished as such. 	persons such as sorters who purloin or embezzle wool or yarn delivered to them by clothiers and the receivers thereof, knowing the same, shall recompense the party grieved or else be whipped and set in the stocks. 	because benefit of clergy is not allowed to women convicted of felony by reason whereof many women suffer death for small causes, any woman convicted for the felonious taking of any money, goods or chattels greater than d. and less than s. other than burglary or robbery on the highway or from the person of any man or woman without their knowledge, shall be branded and marked in the hand upon the brawne of the left thumb with a "t" and imprisonment, whipping, stocking, or sending to the house of correction for a year or less. 	actors profaning god, jesus, or the holy ghost on stage are to be penalized s. 	in it was decided that it was not necessary to prove that witchcraft caused the death of a person for there to be punishment for the witchcraftery. all that was necessary now was the practice of witchcraft. the punishment was death by hanging. also, consulting or feeding an evil spirit was felony. 	sheriffs summoning defendants without a writ shall pay s. and damages to the defendant, and s. to the king. 	since administrators of goods of people dying intestate who fail to pay the creditors of the deceased often can't pay the debts from their own money, the people (who are not creditors) receiving the goods shall pay the creditors. 	no merchant may dress black rabbit skins, nor export them, unless dressed by skinners and bought from them because the skinners have been thus deprived of their livelihoods to their impoverishment throughout the realm. 	beer may be exported when malt is at s. per quarter because exporting beer instead of barley and malt will ( ) increase the export tax to the king, ( ) increase income for coopers and brewers, and ( ) provide more jobs in transporting beer, which is more voluminous, to the great comfort of the port towns. 	fish which are spawning and growing in harbors may not be taken by any net or weirs because this practice has hurt fishermen and the realm. 	no one shall sell beer or ale to an unlicensed alehousekeeper because abuses there have become intolerable. 	no person at least years of age may be naturalized or restored in blood after being attainted unless he takes the sacrament and the oath of supremacy [of the king over the church of england], and oath of allegiance [to the king]. 	money given by will for the apprenticeship of poor children shall be managed by incorporated towns and unincorporated parishes. masters receiving such apprentices shall become bound with sufficient sureties. 	houses of correction shall be built in every county. 	london may make a trench to bring water to the north part of the city and shall compensate the owners of lands by agreement with them of an amount or an amount determined by commissioners. 	all hospitals and abiding places for the poor, lame, maimed, and impotent persons or for houses of correction founded according to the statute of elizabeth shall be incorporated and have perpetual succession. 	only lands and hereditaments paying rents to the crown within the last sixty years shall be claimed by the crown; the title of all persons and corporation who have enjoyed uninterruptedly against the crown for the last sixty years are confirmed against the crown. 	no one may take more than % interest on loans because % has caused many, including gentry, merchant, farmer, and tradesman, to sell their land and forsake their trade to pay their debts. 	as attorney general, edward coke introduced the crime of "seditious libel" in a case before the star chamber in . these written slanders or libels were viewed as incitements to disorder and private vengeance. because the tendency to cause quarrels was the essence of the crime, the truth of the libel was not a defense, but might be an aggravation of criminality. 	edward coke, former chief justice of both the court of common pleas and court of the queen's bench, wrote his reports on court cases of all kinds through forty years and his institutes on the law, in which he explained and systematized the common law and which was suitable for students. this included a commentary and update of littleton, published in ; old and current statutes; a description of the criminal law; and lastly an explanation of the court system, the last two published in . coke declared that "a man's house is his castle". 	coke waged a long battle with his wife over her extensive property and the selection of a husband for their daughter. in his institutes, he described the doctrine of coverture as "with respect to such part of the wife's personality as is not in her possession, as money owing or bequeathed to her, or accrued to her in case of intestacy, or contingent interests, these are a qualified gift by law to the husband, on condition that he reduce them into possession during the coverture, for if he happen to die, in the lifetime of his wife, without reducing such property into possession, she and not his representative will be entitled to it. his disposing of it to another is the same as reducing it into his own possession." he further states that "the interest of the husband in, and his authority over, the personal estate of the wife, is, however, considerably modified by equity, in some particular circumstances. a settlement made upon the wife in contemplation of marriage, and in consideration of her fortune, will entitle the representatives of the husband, though he die before his wife, to the whole of her goods and chattels, whether reduced into possession or not during the coverture. ... a settlement made after marriage will entitle the representative of the husband to such an estate in preference to the wife. ... a court of equity will not interfere with the husband's right to receive the income during the coverture, though the wife resist the application." 	no person convicted of catholicism may practice the common law as a counsellor, clerk, attorney, or solicitor, nor may practice civil law as advocate, or proctor, nor shall be justice, minister, clerk, or steward in any court, nor practice medicine, nor perform as apothecary, nor be officer in a town, in the army, or navy, or forfeit pounds as punishment. nor may they be administrators of estates, or have custody of any child as guardian. nor may they possess any armor, gunpowder, or arms. nor may anyone print or import popish books rosaries, or else forfeit s 	papists running a school must forfeit s. a day for such. anyone conveying a child beyond the seas to be educated in popery may not sue in the courts, may not hold any office, and shall forfeit pounds and all lands. but the child returning may have his family lands restored to him if he receives the sacrament of the lord's supper in the established church after reaching years of age. - judicial procedure - 	defendants may not petition to remove a case to the westminster courts after a jury is selected because such has resulted in unnecessary expense to plaintiffs and delay for defendants in which they suborn perjury by obtaining witnesses to perjure themselves. 	in , by the writ of quo warranto, a government office or official could be made to explain by what right he performed certain acts. 	james i asserted an authority to determine the jurisdiction between the various courts. 	the court of high commission heard mostly matrimonial cases, but also moral offenses both of clergy and laity, and simony [buying or selling ecclesiastical preferment, eclectically pardons, or other things regarded as sacred or spirtual], plurality, drunkenness, and other clerical irregularities. 	the star chamber court still was primarily directed against force and fraud and defended the common people from over-mighty lords and over-pliable justices of the peace, for instance by deterring enclosure. it also enforced monopolies. however, there was a growing tendency for king james, who sat on it, to abuse its power with high fines. for instance, a lord accused with foul language by a huntsman of following hounds of a chase too closely threatened to use his horse whip on the huntsman's master when the huntsman threatened to complain to his master. the lord was fined , pounds. james' council used torture to obtain information from accused felons about possible conspiracies against him. 	the ordinary administrative court of first instance is formed by the single justices of the peace, who issue orders regarding public safety, order, public morals, health, the poor, highways, water, fields, forests, fisheries, trade, building, and fire, and particularly begging and vagrancy as well as regulations of wages, servants, apprentices, and day laborers. for more important resolutions, the special sessions of the justices of the peace of a hundred for a court of intermediate instance and appointed overseers of the poor. all justices of the peace were present at the quarter sessions, which were held at least four times a year, and were primarily a court of appeal from penal sentences, but also make the county rate, appoint county treasurers and county prison and house of correction governors, regulate prices and wages, settle fees of county officials, grant licenses for powder mills, and register dissenting chapels. it heard appeals expressly allowed by statute. the central courts also heard appeals by writ of certiorari as to whether an administrative act was in accordance with existing law, whether the court is competent, and whether the administrative law has been rightly interpreted. this writ of certiorari ceased in the s. 	justices of the peace who have the power to give restitution of possession to tenants of any freehold estate of their lands or tenements which have been forcibly entered and withheld, shall have like power for tenants for term of years, tenants by copy of court roll, guardians by knight service, and tenants by elegit statute merchant and staple of lands or tenements [tenant-plaintiffs holding property to receive income therefrom for satisfaction of a debt of defendants]. 	the justices of the peace were chosen by the crown, usually by the chancellor. the qualifications were residence in the county, suitability of moral character, religious uniformity, and the possession of lands or tenements with twenty pounds a year. they were almost exclusively country gentlemen, except in the towns. in the corporate towns, the mayor, bailiff, recorder, and senior aldermen were ex officio [by virtue of the office] justices of the peace. their main duty was to keep the peace. if a justice heard of a riot in the making, he could compel individuals at the place to give bonds of �good-a-bearing� and cause a proclamation to be made in the king's name for them to disperse. two justices or more had the authority to arrest the rioters and send a record of it to the assizes and to the privy council. if the riot had taken place before their arrival, they could make an inquiry by a jury and certify the results to the king and his council. the justices had men brought before them on many kinds of charges, on their own summons, or on initiative of the petty constable. they tried to draw these men into confession by questioning. after indictment, a person had the choice of a petty jury trial or paying a fine. the justices of the peace could insist upon presentment juries or surveys of offenses by local officers, but, without the institution of policemen, not many crimes were prosecuted because victims were unwilling or could not afford to initiate judicial action. their unwillingness was partly due to the severity of penalties, e.g. death for the theft of over s. and whippings and fines for misdemeanors. further, the offender was frequently a neighbor with whom one would have to live. mediation by the local constable often took place. when there an outbreak of lawlessness in an area, a commission might be set up especially for that area to enforce the law. 	assault cases were common in courts of assize and courts of quarter sessions. the quarter sessions were those of a number of justices of the peace held for a couple of days four times a year for the more important cases in the jurisdiction of the justices of the peace. assault was violence or threat of imminent violence. fines were graduated according to the means of the offender, who was usually bound over to keep the peace. most involved offenders and victims who were neighbors and included people of substantial standing in the village. also, a sizable minority were directed against local officers such as constables, bailiffs, or tax- collectors. 	three-fourths of all assize indictments and many quarter-sessions indictments were for various types of theft, including petty larceny, grand larceny, housebreaking, burglary, sheep stealing, and robbery. these offenses were mostly opportunistic rather than planned, except for london's underworld of professional thieves and the cutpurses of country markets and highway robbers on lonely roads. there were substantial peaks in theft in periods of harvest failure and industrial depression, especially by vagrants. but most of the poor never stole. 	the justices of the peace usually deferred to the learned justices of assize for cases of felony, murder, rape, highway robbery, and witchcraft. most homicides were the result of an impassioned argument leading to blows inflicted by nearby commonplace items picked up and used as weapons. only % of homicides were within the family. men were still declared outlaw if they failed to come to court after repeated summons. 	the lord keeper regularly advised the assize justices, before each circuit departure, to relieve the poor, supply the markets, maintain the roads (which were frequently impassable in winter for wagons or coaches), enforce church attendance, suppress superfluous and disorderly alehouses, and put down riots, robberies, and vagrancy, and in times of dearth, to suppress speculation in foodstuffs, prevent famine, and preserve order. in fact, the justices were most attentive to offenses which affected them as rate payers for the poor. these were offenses against cottaging laws (e.g. erection of cottages which lacked the statutory four acres of land), harboring of "inmates", disputes of settlement of paupers, bastardy, vagrancy, church nonattendance, and above all, disorderly alehouses. alehousing had been a well- established means of poor employment since the s, so it was hard to enforce licensing laws. further, alehouses were the centers of social life for the common people; both women and men met their friends there. if an attorney or solicitor delays his client's suits to work his own gain or over charges his client, the client can recover his costs and treble damages and the attorney and solicitor shall be disbarred. none may be admitted to any court of the king but such as have been brought up in the same court or is otherwise well-practiced in soliciting of causes and has been found by their dealings to be skillful and honest. an attorney who allows another to use his name shall forfeit shillings and be disbarred. 	offenders shall pay the charge of their own conveyance to gaol or the sum shall be levied by sale of their goods so that the king's subjects will no longer be burdened thereby. 	plaintiffs' costs shall be paid by the defendants only where there is a judgment against the defendant in all actions in which the plaintiff is entitled to costs on judgment for him, to discourage frivolous and unjust suits. 	by , chancery could order injunctions to stop activities. 	in slade's case of , the court of the queen's bench held that assumpsit may be brought in place of the action of debt. so assumpsit supplants debt for recovering liquidated sums and is then called "indebitatus assumpsit". 	the trial of sir walter ralegh in began a call by people for a right to confront and question one's accusers. before trial, privy counselors who in theory sat as impartial justices, cross-examined ralegh in prison. with a carefully selected jury present, the trial began with reading of the indictment, which ralegh had not yet seen. he was charged with treason in plotting with catholic spain to put arabella stuart on the throne. arabella was to write to spain promising peace, toleration of catholics in england, and direction by spain in her marriage choice. he pled not guilty and took no exception to any jurors, stating that he knew them all to be honest men. next, attorney general edward coke, his enemy and rival, and he engaged in a debate about who was right, with coke outright bullying him. coke then produced a signed confession by lord cobham that implicated him in the alleged conspiracy and accepting , crowns for his part. ralegh was given permission to speak. he said that cobham had retracted his confession. he ridiculed the idea that he would betray england to spain for gold after fighting against spain, including risking his life three times, and spending , pounds for the defeat of spain. he pointed to a treatise he had written to the king on the present state of spain and reasons against peace. then there was a discussion on the validity of cobham's confession. cecil gave an oration of ralegh. coke gave a speech. ralegh asked to have his accuser brought before him face to face. he cited law that two witnesses were necessary for a conviction for treason. chief justice popham replied that only one witness was necessary under common law, which applied to his case, and that the trial was properly conducted by examination of the defendant. coke added that it would be improper to call cobham because he was a party. then coke surprised ralegh with a letter from cobham stating that ralegh had asked cobham to procure him an annual pension of pounds from spain for disclosing intelligence. ralegh acknowledged that a pension was offered, but denied that he had ever intended to accept it. he admitted that it was a fault not to inform authorities of this offer. the jury deliberated for fifteen minutes and returned with a verdict of guilty. the chief justice delivered the sentence for treason: drawing, hanging, disemboweling, beheading, and quartering. the whole trial was not so much to access guilt, but to show the general public that the person was guilty. 	church courts were revived after a period of disuse. they could annul an unconsummated or legally invalid marriage (e.g. consanguinity, impotence, a witnessed precontract to marry) and order judicial separations in case of adultery, cruelty, or apostasy. annuled marriages made a person's children illegitimate. an action at common law for "criminal conversation" [adultery] with the plaintiff's spouse or for assault and battery could result in an order for separation. but only a private statute of parliament could grant a divorce, which allowed remarriage. it was granted in only a few cases and only to the very wealthy. church officials spied upon people's conduct to draw them into their courts and gain more money from the profits of justice. 	in , edward coke, chief justice of the court of common pleas, decided that the statute giving the royal college of physicians power to imprison and fine those practicing without a license was invalid and unenforceable because it gave the college half of each fine awarded, which was a conflict of interest with its role as an adjudicator. coke said that a maxim of the common law was that no man ought to be judge in his own cause. by this decision, he asserted a court supremacy over parliament with respect to the validity of statutes. he opined that the courts should not only be independent of the crown, but should act as arbiter of the constitution to decide all disputed questions. in his words, "when an act of parliament is against common right and reason, the common law will control it and adjudge such act to be void." 	justices still explained and in some degree interpreted legislative acts of parliament as they had since the s, but their right to do so was coming into question and was slowly lost. 	female scolds were still dunked into water as punishment. 	only barristers, who were called to the bar after being in long residence in one of the inns of court, could practice before the king's court. attorneys and solicitors prepared cases for barristers and practiced before minor courts. 	the king appointed the justices, with the advice of the chancellor. james i often intimidated the justices to see things his way. 	the oath of a justice was: "well and truly ye shall serve the king and his people. and ye shall take no fee or livery of none but the king, nor gift or reward of none that hath a do before you except it shall be meat or drink of small value, as long as the plea hangs before you. and ye shall do equal law and execution of right to all the king's subjects rich and poor, without regard to any person. ye shall counsel our sovereign lord the king in his need. and ye shall not delay any person of common right for the letters of the king or of any person or for any other cause ... so help you god." 	the courts of king's bench and common pleas, and the chancery all met simultaneously in westminster hall. throngs passed up and down the middle aisles between the courts, including booksellers, stationers, scriveners, and vendors of bread and hot meat. the hall was so cold that people kept on their coats and hats. 	the last court case concerning villeinage was in . - - - chapter - - - - the times: - - 	the entourage of charles i came to be called "cavaliers". they were named by their opponents for the spanish caballero who was a catholic who prosecuted protestants. their hair had long, curled, and flowing locks. they wore a broad-rimmed decorated hat. their fancy jackets and breeches were loose. boots were wide and folded over at the top. young men wore earrings and painted their faces. a lady wore her hair in ringlets on each side of her face. her dress was fitted at the waist, with a peaked bodice. it was low at the shoulders with a scoop neckline in front. she often wore much lace, especially at the neck down to the bust line. her outer dress and under-skirt that was revealed in front, were full and made of satin and stiff silk or velvet. only hose of silk were worn at court. 	a majority of prosperous industrial towns and fee farmers, led sometimes by lords or old landed gentry, were puritans. they dressed plainly and in somber colors such as black, grey, and buff, with no ornamentation except plain white collars and cuffs of linen rather than of lace. wool replaced silk and velvet. no jewelry was worn. the puritan women also wore long white aprons. the puritan women smoothed their hair back into little knobs and covered their hair and head with a white covering. both puritan men and women wore broad-rimed hats and plain shoes. the ordinary country man wore a felt hat, broadcloth coat, woolen trousers, hand-knitted worsted stockings, and plain, strong shoes. the puritan men for a time had short-cut hair. the puritan- parliamentarians were given the name "roundheads" after the crop- headed london apprentices whose rioting had marked every stage of the conflict between king and parliament. 	religion was a favorite and serious topic of discussion, even among the illiterate. nine-tenths of the people were protestant. on the whole, they were more inclined to salvation by grace than to salvation by good works. popular reading included guides for good manners such as "the rich cabinet" by thomas gainsford, and "youths behavior" translated from the french by francis hawkins. it advised not to sit with one leg on the other, but with the feet even; not to spit on one's fingers; and not to sniffle in the sight of others. books for ladies such as "delights for ladies" by hugh platt told them how to adorn themselves, tables, closets, and rooms with beautiful objects, perfumes, and waters. it taught preserving and the making of candy preserved by sugar, cooking, and housewifery. gervase markham wrote advice for men in "hobsons horse-load of letters", which addressed serious negotiations, private businesses, amorous accomplishment, wanton merriment, and the defense of honor and reputation. "a helpe to discourse" primed a man to meet company with suggested questions and answers, epigrams, riddles, and jests. in henry peacham's "the compleat gentleman" ( ), the model cavalier is portrayed in terms of horsemanship, tilting, sports, choice of companions, reserved and dignified conduct, good scholarship, and responsibility. this popular book was a guide to university, where there was a seven year course of classroom lectures. it advised conversation with men of the soundest reputation for religion, life, and learning, but recreation with those of the same rank and quality. first place was to be given to religion, so that the foundation of all studies would be the service of god. following in importance were: speaking and writing in english or latin (grammar, syntax, and rhetoric), astronomy, astrology, geography (whose authorities were pliny, strabo, and the pagan writers of the first century), chorography [map-making], mathematics (including arithmetic and geometry), poetry, (reading, writing, and criticizing), music (including part-music), drawing, limning [putting drawings in books], painting, art history, exercise (riding, running, leaping, tilting, throwing, wrestling, swimming, shooting, and falconry), logic and disputation (if related to one's intended profession such as the law), philosophy (plato and aristotle), and some medicine and botany. 	richard brathwaite's "the english gentleman" portrays the somber puritan who accepts the gospel of work. he is a staid and serious businessman. "matrimonial honour" by daniel rogers opined that for success, a marriage must be godly, with the parties equally religious, worshipping together in private and in public. a hasty or worldly marriage would bring repentance. the spouses should agree, but keep to their spheres. children should not be spoiled. 	large households were more or less self-supporting and were managed by their ladies. work included ordering wool, hemp, and flax; making cloth and dying it; dairy work; brewing; malting; baking; preserving wines; extracting oils; distilling perfume; and putting on banquets. couches were coming into use in parlors. 	the king and his court entourage settled for most of the year in whitehall instead of traveling around the country. the king let the public into hyde park, the king�s private hunting park, for recreation. the city of london and westminster were still separate, but a mass of hovels was springing up in between them. in certain areas there were houses crowded with those wanted for minor offenses, small thefts, and debt. bailiffs did not dare venture into these areas because the inhabitants hid and defended each other unless the offense was a major one. the penalty for stealing even small sums was still death. the water carrier was still active and the night transport of sewage necessary. 	inigo jones was the first architect of consequence. he had studied in italy and designed and built the banqueting house at whitehall, near westminster, in london in . it had classical proportions and nice shaping and dressing in stone. he was now an arbiter of taste for the king charles and his queen and built many structures for them, including the queen's chapel at st. james palace and her bedroom in the queen's hose in greenwich. all over london and the country he and his pupils built many classical buildings, including houses, churches, stables, lodgings, out-buildings, staircases, galleries, watergates, and archways. they stood in stark contrast to the tudor buildings around them. in the , jones started town planning in london with covent garden fruit and vegetable market and terraced houses around a central piazza surrounded by open arcades with a tuscan church at one end. in , a man from the suburb of hackney introduced a line of coaches rented at s. per hour. they soon became very popular. 	the flemish johann baptista van helmont demonstrated that metals dissolved in acid can be recovered through chemical means and enunciated the doctrine that each thing in nature has its own specific organization. 	a large part of england was rebuilt as yeomen expanded their houses and others lower in rank replaced mud and wood hovels with brick and stone cottages. a separate kitchen appeared. the ground floors are boarded over to create bedrooms. permanent stairs replace ladders. glass appears in windows. glass and crockery replace wood and pewter, chairs replace benches. knives and forks become common. 	about began travel between towns by covered wagons called stage coaches. they carried passengers and goods and stopped at inns for stabling and repairs. 	work was begun in to make canals that would make marsh waters run to the sea. barges on canals were the most efficient mode of transportation. a barge could carry tons on a canal and only tons on a river. a single horse could haul an -ton wagon on iron rails or on a soft road, but only / of a ton on his back. 	a new trend of spring-sown crops led to better crop balance and reduced the risks of scarcity in a bad year. but the economy was still volatile. 	there were riots in london in - from a complete breakdown in political consensus, the factions being the royalist city elite versus the middling and lesser merchants and craftsmen. 	in , the clock makers broke away from the control of the blacksmiths. the gunmakers also broke away from the blacksmiths. the tinplate workers broke away from the ironmongers. 	"searching" for bad cloth became more difficult as the industry became more diversified. for instance, a new machine called a gig- mill did the work of many hand finishers. in , charles issued a commission for the reformation of the cloth industry with minute directions for the manufacture of cloth. but there were many disagreements over the details of manufacture and reform was difficult to enforce. 	by the s, many parishes had a resident intellectual for the first time. the parish priests came from gentry, upper yeomanry, urban tradesmen and clerical families. they were educated and highly learned. they had libraries and were in touch with contemporary religious debates. they saw their role primarily as pastoral care. many wanted to improve the religious knowledge and moral conduct of their parishioners. puritan influence deepened as they forbade dancing, games, minstrels, and festivals. they punished superstitious conduct. they initiated prosecutions in church courts for sexual lapses and drunkenness. the church court had little coercive power and its punishments were restricted to penance or excommunication. many puritan sects espoused equality for women. by the s women were preachers, e.g. in the baptist and anabaptist religions and, until , prophetesses. these sects were mostly composed of the lower echelons of society. 	poor people did not respond to sermons as did the well-to-do. nor were they as involved in church activity, attending church only for marriages, baptisms, and funerals. 	charles i not only believed in the divine right of kings and was authoritarian; he was the ultimate autocrat. he had an unalterable conviction that he was superior to other men, who were insignificant and privileged to revolve around him. he issued directives to reverse jury verdicts. parliamentarians oliver cromwell and other educated men opposed this view. the commons voted not to grant charles the usual custom-dues for life, making it instead renewable each year, conditioned on the king's behavior. charles dissolved parliament before this passed. he continued to take tonnage and poundage. 	charles wanted money for war so he imposed many taxes, but without the consent of parliament. they included many of which had fallen into disuse. he imposed a compulsory "loan" on private individuals, which the courts held was illegal, and imprisoned those who refused. bail was denied to these men. simpler people who refused were threatened with impressment into the navy, which included being landed on shore to fight as marines and soldiers. they sought to revive the old writ of habeas corpus to get released, but to no avail. charles billeted unpaid and unruly soldiers in private homes, which they plundered. it was customary to quarter them in inns and public houses at royal expense. martial law was declared and soldiers were executed. but the citizens did not want martial law either. 	the magna carta was now seen as a protector of basic liberties, instead of a restoration of certain past rights.. both attorneys and laymen read "the pastyme of people" written by john rastell in , which described the history of the magna carta from to . also read was the "great abridgment" of the english law written by rastell in , and coke's volume of his institutes which dealt with the magna carta, which the crown took to prevent being published until , when parliament allowed it. broad-scale pamphleteering turned england into a school of political discussion. oxford university favored the established church and cambridge university was puritan. 	the house of commons asserted a preeminence to the house of lords for the following reasons: the estates of the members of the house of commons were three times the extent of the members' of the house of lords. bishops' estates had diminished considerably because of secularization. the members of the house of commons were elected [chosen] by the people. 	the house of commons drew up a petition of right in , which expanded upon the principles of magna carta and sought to fix definite bounds between royal power and the power of the law. it protested the loans compelled under pain of imprisonment and stated that no tax or the like should be exacted without the common consent of parliament. it quoted previous law that "...no freeman may be taken or imprisoned, or be disseised of his freeholds or liberties, or his free customs, or be outlawed or exiled; or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land" and that "...no man of what estate or condition that he be, should be put out of his land or tenements, nor taken, nor imprisoned nor disinherited, nor put to death without being brought to answer by due process of law". it continued that "... divers of your subjects have of late been imprisoned without any cause showed; and when for their deliverance they were brought before your justices by your majesty's writs of habeas corpus, there to undergo and receive as the court should order, and their keepers commanded to certify the causes of their detainer, no cause was certified, but that they were detained by your majesty's special command, signified by the lords of your privy council, and yet were returned back to several prisons, without being charged with anything to which they might make answer according to the law." it also protested the billeting of soldiers in private houses and martial law trying soldiers and sailors. if these terms were agreed to by the king, he was to be given a good sum of money. since he needed the money, he yielded. he expected tonnage and poundage for the navy for life, as was the custom. but he got it only for one year, to be renewable yearly. the king agreed to the petition, quietly putting his narrow interpretation on it, and it was put into the statute book. 	in parliament distinguished between treason to the king and treason to the commonwealth. 	the chief justice held in that acts of parliament to take away the king's royal power in the defense of his kingdom were void; the king may command his subjects, their persons, their goods, and their money and acts of parliament make no difference. but the people refused to pay these taxes. 	charles thought of more ways to obtain money and disregarded his agreement to the petition of right. 	without the consent of parliament, charles extended ship money to all the kingdom instead of just the ports. it was used to outfit ships for the protection of the coasts. hampden refused to pay it on principle and the courts ruled against him in the case of king v. john hampden and he was sent to prison. when distraints were tried, the common people used violence to prevent them. the bailiffs were pelted with rocks when they came to distrain property. one man used his pitchfork to take back his steer being taken by the bailiff. if a distraint was successful, people would refuse to buy the distrained property of their neighbors. 	charles revived the right of the crown to force knighthood on the landed gentry for a fee. 	charles sold monopolies in such goods as soap, leather, salt, wine, coal, and linen rags although they had been abolished in the last parliament of james. this made employment uncertain for workers and prices high for the public, and put masters in danger of loss of capital. 	fines were levied on people for the redress of defects in their title deeds. crown forest boundaries were arbitrarily extended and landowners near crown forests were heavily fined for their encroachments on them. money was extorted from london by an illegal proclamation by which every house had to pay three years' rental to the crown to save itself from demolition. 	but what incensed the people more than the money issue were the changes in the established church. high churchmen, called ritualists, enforced ceremonies offensive to puritan feeling in every parish. the centrally placed communion tables were to be placed at the east end within railings and called "altars", or "mercy seats" as if for mass. they were to be ornamented with crucifixes, images, pretty trifles, books, candles and rich tapestries. bowing was to be done when approaching them. clergymen were to be called "priests" and their authority treated as divine. worship was to be done in accordance with the prescribed forms of romish breviars, rituals, and mass-books. its ritual was to have pomp and ceremony, including kneeling for communion. rings were to be used in marriages and crosses used in baptisms. churches, fonts, tables, pulpits, chalices and the like were to be consecrated, thereby putting holiness in them. churches that did not do this but used unconsecrated or "polluted" articles were closed by interdiction [a catholic censure withdrawing most sacraments and christian burial]. days, postures, meats, and vestments were to be regarded. the clergy was to wear supplices [white linen vestments flowing to the foot with lawn sleeves] and embroidered copes [vestment over the head]. a bishop wore a four-cornered cap, cope and surplice with lawn-sleeves, tippet (long, black scarf), hood, and canonical coat. churchwardens were to take oaths to inform against any who disobeyed. the law still required that all attend sunday sermons. but parishes had some control over who was their preacher, even though a minister could be assigned to a parish by the bishops without the consent of the patron of the church or parish people. by increasing the meager pay of a parish clergyman, they could choose one with a compatible theology or employ a lecturer from outside. the ritualists scolded clergymen for "gospel preaching" and suppressed puritan preaching in public meetings. preaching or printing matter concerning the controversy of free will versus predestination was forbidden. geneva bibles, which were popular among laymen, were prohibited from being imported. many were excommunicated for sitting instead of kneeling at communion. the clergy prohibited marriage if they liked by withholding their license, and they licensed marriages without banns. the ritualists encouraged certain sports to be played after church on sunday. the puritans protested vehemently to this because they wanted to strictly observe the sabbath. the puritans saw the high churchmen as wanting to return to the doctrine and customs they thought to be papist. the ritualists were absolutists in their political views and accepted the king's intervention in church matters. the ecclesiastical court of high commission enforced the edicts of the church, excommunicating those who did not conform and expelling clergymen who, for instance, did not bow at the name of jesus or wear the surplice. it was used against the puritans and imposed high fines and imprisonment for religious eccentricity and puritan preaching. charles supported the established church in this endeavor because it agreed that he had a divine right to rule. 	the universities and high churchmen were beginning to adopt the doctrine of free will over predestination. parliamentarian and puritan oliver cromwell and others feared this presaged a return to justification by works and the popish faith. in parliament, he spoke out against the tyranny of the bishops, whose offices he wanted abolished, and the elaborateness of church services. 	to avoid persecution, many puritans emigrated to virginia and new england. they were led by magistrates, country gentlemen, prominent businessmen, attorneys, and other professionals. in , the massachusetts bay colony was chartered at the instigation of john winthrop as a puritan refuge. its leaders led a migration of puritans organized to include five each of armorers, bakers, blacksmiths, carpenters, shoemakers, merchants; three each of clothiers, chandlers, coopers, military officers, physicians, and tailors; two each of fishermen, herdsmen, and masons; on tanner, and one weaver. the fare was five pounds and an applicant was interviewed to make sure he was a puritan. he got acres, or more for a larger family. but if he paid pounds into the common stock he received acres of land, plus more for each dependent. maryland was founded in as a haven for catholics, but its charter precluded a government-established religion. it was granted to lord baltimore to hold in free socage and was named after charles� wife, who was catholic. catholics in england could practice their religion only in their homes and could not carry arms. 	as hostility grew, censorship of books and plays accelerated and the number of authorized printers was reduced in by decree of the star chamber. in s effective government control of the press collapsed. then there were many pamphlets and newspapers with all variety of interpretation of the bible and all sorts of political opinion, such as on taxation; law and the liberties of the subject; religion; land and trade; and authority and property. twenty-two pamphlets were published in and , in . 	in the canons of the church included a requirement for parsons to exclaim divine right of kings every year. the commons soon resolved that this was contrary to the fundamental laws and liberties of the realm. 	the short parliament of was dissolved soon because the commons demanded redress of its grievances. the long parliament of - requested by the house of lords was agreed to by charles because he still wanted money. in election of members to the long parliament, voters wanted to know where contenders stood on certain political issues. in this parliament, the commons ceased to agree on all issues and started to rely on majority rule. 	the house of commons was led by john pym, a middle class landholder with extensive commercial interests. the commons treated the king's refusal to act with them as a relinquishment of his power to parliament. when it met at the long parliament, pym expressed the grievances of the king's actions against the privileges of parliament, against religion, and against the liberties of the subjects. specifically, he decried the disregard of free speech and of freedom from prosecution afterward, and the arbitrary dissolution of parliament. secondly, he alleged popery had been encouraged and the ecclesiastical jurisdiction enlarged. thirdly, he protested the patent monopolies given to favorites to the detriment of the buying public, the imposition of ship money levies beyond the need of national defense and without the consent of parliament, the revival of the feudal practice of imposing a fine for refusal to accept a knighthood with its attendant obligations, the enlargement of the king's forests and driving out from hence tenants with lucrative holdings, extra judicial declarations of justices without hearing of counsel or argument in many criminal matters, and the abuses of the prerogative courts in defending monopolies. parliament's assertion into religious matters and foreign affairs was unprecedented, those areas having been exclusively in the power of the king. 	the long parliament begun in removed many of the king's ministers and forbade clergy from sitting in parliament or exercising any temporal authority. it passed measures which were not agreed to by the king. it undid the lawless acts of the king and the court decision in the case of king v. hampden. ship money was declared illegal. the new concept that the present parliament should not be dissolved but by its own consent was adopted. the star chamber and court of high commission were abolished. the oath ex officio, an oath to answer all questions, was originally meant for facts at issue, but had been extended by these courts to opinions, beliefs, and religion and had led to abuses. the star chamber had been the only court which punished infractions of the kings' edicts, so now his proclamations were unenforceable. protection against self-incrimination was given by the provision that no person be forced "to confess or accuse him or herself of crime, offense, delinquency, or misdemeanor, or any neglect... or thing whereby, or by reason whereof, he or she shall or may be liable or exposed to any censure, pain, penalty, or punishment whatsoever, as had been the practice in the star chamber and the court of high commission. 	these measures were also adopted: no one may be compelled to take knighthood nor undergo any fine for not so doing. the forest boundaries are returned to their former place. all subjects may now import gunpowder; they may also make and sell gunpowder and import saltpeter. 	the root and branch petition of to abolish episcopacy roots and branches complained about pressure on ministers by bishops on threat of dismissal not to preach about predestination, free grace, perseverance, original sin remaining after baptism, the sabbath, doctrine against universal grace, election for faith foreseen, free-will against anti-christ, non- residents, nor human inventions in god's worship. it also complained about the great increase of idle, lewd, and dissolute, ignorant and erroneous men in the ministry who wanted only to wear a canonical coat, a surplice, and a hood, bow at the name of jesus, and be zealous of superstitious ceremonies. it also complained about the swarming of lascivious, idle, and unprofitable books, pamphlets, play-books, and ballads, such as ovid's "fits of love", "the parliament of women", barn's "poems", and parker's "ballads". further it opposed the restraint of reprinting books formerly licensed without relicensing. it protested the growth of popery and increase of priests and jesuits, the strict observance of saints' days whereby large fines were imposed on people working on them, the increase of whoredoms and adulteries because of the bishops' corrupt administration of justice and taking of bribes, and the practice of excommunicating for trivial matters such as working on a holy day or not paying a fee. it further protested the fining and imprisoning of many people; breaking up men's houses and studies; taking away men's books, letters, and writings; seizing upon their estates; removing them from their callings; and separating them from their wives, to the utter infringement of the laws and of people's liberties. it complained that these practices caused many clothiers, merchants, and others to flee to holland, thus undermining the wool industry. it finally complained of the multitude of monopolies and patents, large increase of customs, and ship-money. many londoners signed this petition. 	the house of commons decided to forbid bowing at the name of jesus. when the house of lords disagreed with this, the house of commons claimed that it represented all the people and didn't need the concurrence of the house of lords. the house of commons ordered that all communion tables be removed from the east end of churches, that the railings be taken away, and all candles and basins be removed from it. further, all crucifixes, images of the virgin mary, and pictures of any of the trinity were to be demolished, including those in markets and streets. further, all bowing at the name of jesus or toward the east end of the church or toward the communion table was forbidden. all dancing or other sports on sunday was forbidden. enforcement was to be done by justices of the peace and mayors. but these orders never became statutes. 	enforcement of the law for not coming to church was not now regularly enforced, so catholics had a respite. 	rebellion of irish catholics against england and english protestants broke out in ireland in . parliament didn't trust the king with an army that he could use against themselves so it passed the following two measures expanding the navy and calling out the militia and naming certain persons to be lieutenants of each county. 	the admiral shall impress as many seamen as necessary for the defense of the realm. this includes mariners, sailors, watermen, ship carpenters, but no one over the age of or masters or masters' mates. if one hides, he shall be imprisoned for three months without bail. 	justices of the peace shall impress as many soldiers as the king may order for war in ireland. this is despite the right of a citizen to be free from being compelled to go out of his county to be a soldier because the danger from ireland is imminent. excluded are clergymen, scholars, students, those rated at a subsidy of land of three pounds or goods of five pounds, esquires or above, the sons of such or their widows, those under eighteen or over sixty years of age, mariners, seamen, and fishermen. the penalty for disobeying is imprisonment, without bail or misprise, and a fine of ten pounds. if an offender can't pay the fine, he shall be imprisoned a year more, without bail or misprise. 	the right to call out the county militia had been a prerogative of the crown, so the king issued a proclamation ordering the soldiers to ignore this order and obey him. so parliament declared this proclamation void. 	the king accused five leaders of parliament, including pym, of trying to subvert the government of the kingdom, to deprive the king of his regal power, to alienate the affections of the people toward their king, forcing the parliament to their ends by foul aspersions, and inviting the scots to invade england. in , the king entered parliament with soldiers to arrest these five. they had flown, but parliament was shocked that the king had threatened the liberties of parliament with military force. the citizens of london, in their fear of popery, rose in arms against the king, who left the city. both sides raised big armies. the goal of the parliamentarians was to capture the king alive and force him to concessions. 	when the parliamentarians took oxford in , they purged its faculty of royalists. - the law - 	real wages, which had been falling, reached their low point and the gap between the poor and others widened. there were depressions from - and from to about , which called for royal proclamations for the relief and distress, especially among the poor. the book of orders, for the relief of distress in earlier reigns, was to be reissued. the assize of beer and bread maintaining quality, prices, weights, and measures, was to be duly kept. hoarding of foodstuffs was to be punished. fish days and lent were to be observed to maintain the fishers. abstaining from suppers on fridays and on the eves of feasts was ordered in all taverns and commended to private families. city corporations were to give up their usual feasts and half the charge given to the poor. foreign ships were not to be supplied with food for long voyages. the revised book of orders also covered the regulation of beggary, the binding of apprentices, and the general relief of the poor. all magistrates were to enforce the rules and raise special rates from all parishes, the richer of these to help the poorer. 	from to these statutes were passed: no one shall engage in sports or any pastimes outside his own parish or bearbaiting, bullbaiting, interludes, plays or other unlawful pastimes inside his parish on sundays because such has led to quarrels and bloodshed and nonattendance at church. the fine is s. d. or if the offender does not have the money or goods to sell to pay, he shall be set in the public stocks for three hours. no carrier with any horse or wagon or cart or drover with cattle may travel on sunday or else forfeit s. no butcher may kill or sell any victual on sunday or else forfeit s. d. every innkeeper, alehousekeeper, and other victualer permitting a patron who is not an inhabitant of the area to become drunk shall forfeit s. or be place in the stocks for six hours. offenders convicted a second time shall be bound by two sureties to the sum of s. 	as of , a parent sending a child out of the country to go to a catholic school was to forfeit pounds, one half to the informer and one half to the king. 	the petition of right herebefore described was passed as a statute in . - judicial procedure - 	the star chamber decided cases as diverse as a case of subordination of witnesses, cases of counterfeiters of farthing tokens, and cases of apothecaries compounding ill medicines. it tried to keep down the prices of foodstuffs for the benefit of the poor; it repressed extortion and false accusations, and disbarred an attorney for sharp practices; it punished defamation, fraud, riots, forgery of wills; it forbade duels. a special virtue of its position was that it could handle without fear matters in which men of social or local influence might intimidate or overawe juries or even country justices. it punished a lord who caused records to be forged, unlawfully entered lands, and seized tithes. it disciplined a nobleman for drawing a sword on a lord hunting hare. 	in one of its cases, sir edward bullock, a knight wanting to enclose a common of a thousand acres threatened his neighbor blackhall when he would not sell his lands and rights. the knight hired a man to break down the hedges and open a gate that had been staked up, so that his neighbor's cattle would stray. he sued his neighbor three times for trespass, lost his cases, and threatened revenge on all the witnesses who testified against him. he had the house of one pulled down. the pregnant wife and a naked child were turned out and had to lie in the streets because no one dared to take them in, even when a justice so directed. the witness, his wife, and family took refuge in an unheated outbuilding in the winter. he and his wife and one child died there. the knight had another witness cudgeled so that she was black and blue from the waist up, and could not put on her clothes for a month. the knight threatened to set fire to the house of another witness, and sent his men to pull him out of doors and keep him prisoner for some hours. the star chamber imprisoned the knight and his men. the knight was fined , pounds and the men pounds each. the knight also had to pay one witness pounds in reparation to the surviving children of the family whose house had been pulled down. 	but the power of the star chamber was abused by king charles i. for instance, one lord was accused by another of calling him a base lord. the evidence was paltry. but he was fined , pounds, one-half going to the king. a lord who was accused of converting agricultural land to pasture was fined , pounds. a person who exported fuller's earth, contrary to the king's proclamation, was pilloried and fined , pounds. a man who defaced a stained-glass window in a church was fined pounds and ordered to pay for a plain glass replacement. a man who became sheriff of a county and had taken the oath which bound him to remain in the county was elected to parliament and stood in opposition to the king on many matters. he was imprisoned for many years until he made a humble submission and had to pay a heavy fine. a london importer who was alleged to have said "that the merchants are in no part of the world so screwed and wrung as in england; that in turkey they have more encouragement" was fined , pounds for seditious and slanderous words against his majesty's happy government. a scottish minister circulated a book appealing to parliament to turn out the bishops and to resist its own dissolution by the king. in it he called the bishops men of blood, anti-christian, satanical, ravens, and magpies, preying on the state. he was against kneeling at the sacrament and denounced the queen for her catholic religion. he blamed the state for the death of citizens of a certain town by famine. for as he did "scandalize his majesties sacred person, his religious, wise, and just government, the person of his royal consort the queen, the persons of the lords and peers of this realm, especially the reverend bishops", he was fined , pounds, was to be unfrocked (which was done by the court of high commission), and was whipped, pilloried, one ear nailed to the pillory and cut off, his cheek branded, and his nose slit. then he was imprisoned for life, but only served ten years, being released by a statute of the long parliament. a puritan writer pyrnne wrote a book that included a condemnation of masks and plays, and all who took part, and all who looked on as sinful, pernicious, and unlawful. it opined that nero had attended plays and deserved to be murdered. since charles had attended plays and the queen had taken part in a mask, it was inferred that pyrnne meant them harm. his indictment alleged that "he hath presumed to cast aspersions upon the king, the queen, and the commonwealth, and endeavored to infuse an opinion onto the people that it is lawful to lay violent hands upon princes that are either actors, favorers, or spectators of stage plays". the justices saw in the book an attempt to undermine authority. the chief justice called the book a most wicked, infamous, scandalous, and seditious libel. pyrnne was sentenced to be degraded by oxford and disbarred by lincoln's inn, to be fined , pounds, to be pilloried and to have his ears cut off, and then to be imprisoned for life. three men who wrote attacks on the bishops and ecclesiastical courts, such as alleging that the bishops suppression of fasts and preaching had brought the pestilence upon the people and that the bishops had dishonored god and exercised papal jurisdiction in their own names, were each sentenced to , fine, the pillory, where their ears were cut off, and to life imprisonment. one, who had been convicted for libel before, was branded on both cheeks: "s.l." for seditious libeller. others printed similar material. in vain the star chamber limited the number of london printers to twenty, and made licensing stricter. these prisoners were set free by the long parliament. 	charles i intimidated justices to obey him in decision-making even more than james i. 	charles i so abused the power of the star chamber court that it was abolished by the long parliament and with it, the involvement of the king's council in civil and criminal cases. 	the regular church courts punished people for heresy, non- attendance at church, sexual immorality, working on the sabbath or a holy day, non-payment of tithes, and lending money at interest. the special ecclesiastical court, the court of high commission, was composed of clerics appointed by the king and decided cases of marriage annulment, alimony, adultery, married couples living separately, cruelty of husbands to wives, and habitual drunkenness. but it also took on cases of schismatics and extended its power over them to include staid and solid puritans, who uniformly believed that salvation was the only worthy earthly aim. acting on information attained through secret channels or from visitations, it would summon the accused, who was required to give, under oath, "full, true, and perfect" answers to broad and undetailed charges made by secret informants. refusal to take the oath resulted in commitment for contempt of court. if he denied the charges and fled, the court could hold the hearing without him. many fled out of the country or went into hiding in it. if the accused went to the hearing, he could not take an attorney with him. most of the issues involved clergy refusing to use the litany, to make the sign of the cross in baptism, to wear the surplice, or to publish the book of sports, and insistence on extempore prayer and preaching. other issues were clergy who, from the pulpit, inveighed against ship-money and unjust taxes, and spoke rudely against the bishops and tyrannical princes. one case is that of samuel ward, the town preacher of a large town, heard in . he neglected bowing or kneeling on coming to his seat in church and preached against the book of sports. he did not read the set prayers from the official book, but said prayers he had himself conceived. to this he replied that a parrot could be taught to repeat forms and an ape to imitate gestures. but his most serious offenses had to do with his utterances from the pulpit derogatory to the tenets and discipline of the church. he was accused of saying that he believed that congregations still had the right of election of all officers, including ministers. also, he allegedly said that in preaching on the christmas holidays he told his people "that in the following days they might do their ordinary business, intending to cross that vulgar superstitious belief, that whoever works on any of those twelve days shall be lousy". he allegedly warned his people to beware of a relapse into popery. ward was convicted of depraving the liturgy, tending toward schism, frightening the people, and encouraging the overthrow of all manner of government. he was removed from his position, deprived of his ministerial function, suspended and silenced during the king's pleasure. he was ordered to make submission and recantation both in court and in his church and to give bond for pounds. when he did not do this, he was sent to prison and lay there nearly four years, and died a few months later. in another case, a mrs. traske was imprisoned for at least eleven years for keeping saturday as her sabbath. many people were excommunicated and books censored for essentially political reasons. 	in , the king proclaimed that the common law courts could not intervene in ecclesiastical courts. 	the court of high commission was abolished by the long parliament. 	justices of the peace had general and quarter sessions, the latter of which were held four times a year with all justices of the peace attending. it was primarily a court of appeal from penal sentences. but it was also an administrative body to determine taxes and make appointments of officials and grant licenses for businesses. 	in , in distributing a deceased person's estate, the chancery court upheld a trust designed to hold the property for an heiress so that it did not become her husband's property. 	at the request of parliament, the king had all justices serve during their good behavior instead of serving at the king's will, which had been the practice for ages. this increased the independence of the judiciary. 	the rack was used for the last time in before the long parliament met. it was used to torture a rioter before hanging. 	men were still pressed to death for failure to plead, pickpockets still executed for the first offense, and husband murderers still burned. - - - chapter - - - - the times: - - 	for four years, there was civil war between the king, backed generally by the upper class, the established church, and most of the gentry, against the parliamentarians, backed generally by middle class yeomen, town dwellers, some of the gentry, most of the great corporations, the city of london, the ports, the seamen, and the navy. oxford university was royalist, and cambridge university was puritan in sympathy. archery was not used in the war, having become just sport by . flint-lock pistols, which relied on flint striking steel to ignite the powder, as well as swords were used by horsemen in the civil war. footmen were musketeers using a match lock with a cord boiled in vinegar as the match, and dressed in leather doublets and an iron-pot headpiece; or pikemen with long wooden poles with spearheads of iron or steel and short swords, and dressed in armor. this was the last time armor was used. the parliamentarians wore orange scarves to distinguish themselves from their enemy. cromwell, who had a natural aptitude for military matters, selected for his troops, puritan zealots with a puritan code of behavior which included no drinking or swearing. he selected horsemen based on ability rather than social class. he was regarded as one of the leaders of the independents, who wanted total abolition of the monarchy and of the aristocracy. when made a leader of the new model army, cromwell dressed all his foot men in red with only the facings being regimental colors. the new model army had been assembled because there had been disagreement about policy among the members of parliament who held commissions. almost all members gave up their commissions. for their continued support, many wives and also prostitutes put on men's clothing and followed the troops. they nursed the wounded. those many wives who stayed at home pleaded and answered in court; petitioned to the house of commons, e.g. for release of debtors from prison, high taxes, lack of work, and arbitrary government; and made other public appearances. puritan and royalist newspapers printed the news at least once weekly. poet john milton pled for civil and religious freedom, freedom of social life, and freedom of the press. he stated: "give me the liberty to know, to utter, and to argue freely, according to conscience, above all liberties." 	the mayor and citizens of london were given authority in to fortify all highways leading to the city and levy a tax on inhabitants for this purpose. when london was deprived of coal during the war, trees and flowers again flourished there. 	officers and seamen in navy ships were authorized in to take one-third of all prize goods captured, the other two-thirds going to the state. 	parliament approved certain persons to set forth ships at their own expense to defend the realm in . they were allowed to keep any ships, goods, ammunition, or moneys they seized. 	saltpeter men were appointed by parliament in and later times to search and dig for saltpeter in pigeon houses, stables, and outhouses, but not dwelling, shops, or milkhouses. they had to repair any damage done to the contentment of the owners. 	complaints were made to parliament that there were scandalous and ill-affected fomenters of the civil war and disobeyers of the ordinaries of parliament and deserters of their ordinary places of residence. these complaints were made by members of the university of cambridge, students, clergy in surrounding counties, and schoolmasters. so a committee was established in to investigate and sequester their lands and goods, excepting one- fifth of the estate for the wife and children. 	when charles was captured in , the episcopacy of the bishops was abolished. when parliament was about to reinstate charles as king with weakened powers and establish a presbyterian state church, the soldiers, who were religious independents and who still had not been fully paid (the infantry pay was weeks in arrears and the cavalry weeks) despite plans to disband them, spontaneously took the king by force. they demanded liberty of conscience to practice their own religion and their pay. cromwell sided with the army and then became leader of the house of commons. charles dissembled in his negotiations with the army generals. he felt freed from his promises as soon as the pressure was removed. the army could not forgive charles' duplicity and deceitfulness and insisted upon his death as the only way to bring peace. cromwell gave up hope on negotiations with charles when he intercepted a letter by charles to his queen decreeing the final doom of the army adherents in favor of the scottish presbyterians. during protracted negotiations over months between the army and parliament over a new constitution, a renewed support for the king, which was inspired by him, necessitated a second civil war to put down this revolt and subdue its scot supporters. eventually the army took control of parliament by force, only allowing the few members who agreed with them on the trial of the king into parliamentary meetings. so charles was tried in , found guilty of "an unlimited and tyrannical power to rule according to his will, and to overthrow the rights and liberties of the people ... which by the fundamental constitutions of this kingdom were reserved on the peoples' behalf in the right and power of frequent and successive parliaments or national meetings in council", and maintaining a war against his subjects, which amounted to treason. to prevent his adherents from trying to reinstate him, he was condemned to death and beheaded in january . 	to pay for the civil war, an assessment tax on the yearly value of rents, annuities, and offices was often levied. the main burden of this tax fell on the gentry rather than the merchants and smaller men of property, as previous taxes had. an excise tax, a tax on consumption, was begun on ale and beer and then extended to meat, salt, starch, soap, and paper. it was gradually extended to many goods. the excise taxes were paid, as was the customs tax, by manufacturers on goods made in england and by foreign manufacturers on goods at the ports. 	parishes had to give maintenance to maimed soldiers and provision for the livelihood to the wives and children of killed soldiers. masters of apprentices who became soldiers had to take them back as apprentices without loss for their absence in defense of the commonwealth. masters who received considerable loss by the absence of their apprentices received reasonable satisfaction from the public stock. 	from - , royalists were purged from oxford and a group of baconians moved into the university behind parliamentary armies. at the two universities, books were no longer chained to the bookcases. the universities were freed from taxation. 	after the civil wars, cromwell led the country. he was a military, political, and religious leader. he had become a puritan zealot after a youth of gambling, drinking, debauchery, and rioting. he believed that military success was a reflection of divine favor and he regarded himself as one the few elect preordained for salvation. those in power in the new commonwealth tended to explain their regime in terms of popular consent, and the takeover from charles i as due to his breaking of a contract with the people. 	most people dressed in puritan fashion. a puritan's favorite readings were the old testament, epistles of st. paul, and writings of john calvin. 	wealth and prosperity steadily increased in spite of the civil wars. during cromwell's tenure, there was a marked revival of economic prosperity. by the mid- s, landlords had been able to shorten their leases so that a lease of twenty-one years was the predominant form of landholding. 	patent protection was given in for seven years to the inventors of a device for salvaging ships' goods and cannons from the seas. with it they could convert to their own use one half of the items retrieved, the other half going to the navy and parliament. patent protection was given in to george manby on his new invention for boiling liquors and making salt with less coal and wood and iron, lead, and copper for fourteen years. patent protection was given in for fourteen years to jeromy buck for melting iron, lead, tin, copper, brass, and other metals with coal without burning charcoal. 	the merchant adventurers were incorporated again in to have a monopoly. it was required to admit into membership for pounds anyone free of london and bred as a merchant, and for pounds any non-inhabitant of london. the penalty for trading for one who was not free of the corporation was forfeiture of his goods. 	in , the house of commons abolished the monarchy and in the house of lords. also in it declared that england "should thenceforth be governed as a commonwealth and free state by the supreme authority of this nation, the representatives of the people in parliament." it made a new constitution. 	john milton defended the commonwealth as superior to the monarchy because it could not deteriorate into tyranny in his books: "first defense of the people of england" in , and "second defense" in . he lauded cromwell as great in war and great in peace, and exemplifying the principle that "nature appoints that wise men should govern fools". 	thomas hobbes, the son of a clergyman, and tutor to students, wrote "leviathan" in on his theory of sovereignty. hobbes thought that states are formed as the only alternative to anarchy, barbarism, and war, so that supremacy and unity of a sovereign power is essential to a civilized life and the protection of the citizenry. a sovereign may be a man or body of men as long as his or its authority is generally recognized. there must be a social contract among the citizenry to obey a certain sovereign. to avoid religious conflict, there must be a complete subordination of the church to the state and the religion of a state must be dependent upon its secular sovereign. hobbes thought that knowledge of the world came through experience and not reason alone. only matter exists, and everything that happens can be predicted in accordance with exact, scientific laws. he regarded human societies as purely mechanical systems set in motion by human desires. he saw self interest as the mainspring of moral law. conflicting self interests transformed into a lawful system of agreements. hobbes opined that all power really originated in the people and that the end of all power was for the people's good. 	on the other hand, james harrington, who wrote "the commonwealth of oceana" in , opined that a stable society depended on a direct relationship between the distribution of property and political power; no one with property worth more than , pounds should be allowed to acquire more and property should be divided among children. a senate of mature property owners were to make and debate the laws while an assembly elected by universal suffrage was to vote on them because "a popular assembly without a senate cannot be wise and a senate without a popular assembly will not be honest". a third of the senate would turn over every year. john milton defended the execution of the king in "the tenure of kings and magistrates" in which he maintained that the people may "as often as they shall judge it for the best either to choose him or reject him or depose him, though no tyrant, merely by the liberty and right of freeborn men to be governed as seems to the best". he also wrote in favor of liberty of the press. ordinary speech found its way into prose writing. 	lands of more than royalists, including church lands, were confiscated and sold or leased by county committees. many royalists put their lands into trusts or turned them over to relatives or sold them outright to prevent confiscation. it was an upheaval comparable to the dissolution of the monasteries. also, specified papists who had taken up arms against the realm lost their lands, goods, money, rents, and two-thirds of their personal estates. but allowance was made for the maintenance of their wives and children. 	the book of common prayer was abolished because of its burdensome ceremonies. it was replaced by a directory for public worship. according to this, the sunday service was to include reading of the scriptures, prayer, and a sermon, ordinarily on some text of scripture which would be explained with reasons therefore and applied to peoples' lives so they could see if they had sinned or not. the ending of episcopal patronage gave some parishes the right to elect their own ministers. 	all festivals and holy days were abolished, e.g. christmas, easter, whitsuntide. instead, scholars, apprentices, and servants were to have recreation and stores were to be closed every second tuesday of the month. the usual merry-making, music, dancing, and sports after the sunday service were discontinued. 	a day for fasting: the last wednesday of every month, was declared by statute. this day was to be "kept with the more solemn humiliation, because it may call to remembrance our sins, and the sins of our forefathers, who have turned this feast, pretending the memory of christ into an extreme forgetfulness of him, by giving liberty to carnal and sensual delights, being contrary to the life which christ himself led here upon earth, ...". this statute lasted for only five years from because observance of it was not consistent throughout the country. 	educational opportunities such as in grammar schools were more widespread and stronger than ever before or since until the s. about % of men in london were literate, and % of men nationwide. about half the women in london were literate by . 	in , the marshalls of the admiralty and five major ports were ordered to search all ships for stolen children since it had been a problem in london. 	the elderships of the church were given power in to suspend from the sacrament of the lord's supper all ignorant and scandalous persons. ignorance was lack of knowledge that there is a god and this is the one true god we worship, that this god is one, yet three persons: father, son, and holy ghost, that god created man in his own image, that all have sinned and therefore shall die, that there is one mediator between god and man: jesus christ, who died on the cross to save men from their sins, that he rose from the dead, ascended into heaven, sits at the right hand of god, and intercedes for us, that christ and his benefits are applied only by faith, that the souls of the faithful live with christ in blessedness, that non-believers and non-repenters shall perish eternally, that the sacraments are baptism and communion, and that there is a judgment day on which the righteous will be given life eternal and the wicked shall receive everlasting punishment. scandalous persons are those who blasphemously speak or write anything of god, his holy work or the sacraments; an incestuous person; an adulterer; a fornicator; a drunkard; a profane swearer or cursor; a murderer; a worshipper of images, crosses, crucifixes, relics, saints, or angels; makers of images of the trinity; one who professes not to be in charity with his neighbor; any challenging another to fight or accepting such challenge; on the lord's day, dancing, dicing, cards, masking, wake, shooting, bowling, football, wrestling, plays, interludes, fencing, bullbaiting, bearbaiting, hawking, hunting, coursing [hunting with hounds], fishing, fowling, selling wares, travel without reasonable cause; a brothel-house keeper; one who solicits the chastity of another; one who marries a papist or consents to the marriage of his child to a papist; own who goes for advice to a witch, wizard, or fortune-teller; one who assaults his parents, or any magistrate, minister, or elder in the execution of his office; and one attainted of barratry [purchase or sale of office or preferment], forgery, extortion, or bribery. if such a person persists, he shall be excommunicated. 	cromwell did not disapprove of activities prohibited because of the recreation they provided, but thought that they had become too central to people's lives. he did not close the taverns or ale houses. 	in it was required that public preachers be approved by a commission nominated by the lord protector and parliament because there had been too many "weak, scandalous, popish, and ill- affected" ones. in named persons were ejected as scandalous, ignorant and insufficient ministers and schoolmasters. 	because the poorer parishes of london were having problems supporting their poor, a corporation for the poor of london was established in with authority to erect workhouses and houses of correction. 	imprisoned debtors who had less than five pounds and less that five pounds worth of trade tools and clothing and bedding for his family were ordered released in . 	wardship was abolished. military tenures were abolished. feudal tenures were converted into freehold in . 	in those living in crown forest land were given free socage in that land. the game laws were not enforced, so people could eat deer. 	enclosures were increasing and parliament was disinclined to protect copyholders against enclosures, favoring those with rights of ownership. enclosure was no longer deterred especially after abolition of the star chamber. the legal device of "strict settlement" evolved to prevent heirs from breaking up estates enabled families to concentrate land and capital into large units. the oldest son inherited the land and the younger sons now received money. clover seed was sold in london by . it revolutionized the cultivation of barren land. england began to export instead of import grain. but vagrancy increased from people dispossessed of land. and the village artisan, when deprived of his field and of his rights of common, could not continue to work at home, but had to accept the wages offered to him in an employer's workshop. 	employers and entrepreneurs were now free from control by the crown. there were no more attempts to supervise quality of manufactures or to fix prices or regulate wages. there was greater freedom established in relations between employers and workers. the government no longer tried to compel employers to keep employees in times of economic slump. the requirement of seven year apprenticeships and being the son of a freeholder to be an apprentice were not enforced. 	the economy was still volatile due ostensibly to variable harvests, amount of gold and money in circulation, and balances of trade, and to periods of plague. wages rose steadily. the rise in prices ended about , and prices remained stable until about . there was more mobility of people. taxation became regular and it was controlled by representatives of the taxpayers. population growth gradually stabilized. 	capitalism was coming into being. for instance, the clothier was now a manufacturer. he had become a contractor, taking wool to the specialist spinner, the yarn to the specialist weaver, the rough cloth to be washed and stretched, and finally to the dyer. this cloth was sold at retail by the drapers. tin on the surface was exhausted, so capital was used to drive deep shafts in tin mines. no longer did a single man with a single ship sail around until he found a market, but companies trading overseas had their ships, wharves, and depots furnished by men's savings put into a common stock. the first major capitalist industries were coal mining, iron mining, and foreign trade because they all needed large investments, and thus joint-stock company organization. 	cromwell reconstituted the east india company on a wider and more permanent basis. he gave it a new charter in which included authority to make stock permanent, thus ensuring a continuity of capital. this solved the problem of the competition of overlapping voyages which still occurred despite their terms of several years. the company became one of the first permanent joint-stock companies. now the stock was never wound up. the company had permanent capital which could grow. the absence of competition among voyages made the company stronger in the face of a common enemy, such as a rival trading country or indian groups. the charter also authorized the company to fortify and colonize any of its establishments and to transport to them settlers, stores, and ammunition. 	later in , the company threw open the freedom of the company to the public for a nominal sum of five pounds. now the merchant adventurers and private traders could participate. it provided that dividends were to be paid only in cash and not in kind (goods). it also provided for appraisals of the company's property to be made every three years, so any shareholders could redeem their shares proportionately. his shares would then be resold. people began to buy and sell their shares among each other. the company made the minimum subscription pounds. each person holding pounds worth of shares had one vote. holding , pounds worth of shares qualified one for election to the committee of twenty-four. the seats of the members of this committee and of the governor and deputy governor could no longer be permanent, but had limited and staggered terms. the continuity of capital took the place of the permanence of the governing body in providing stability. there was a regular scale of salaries for employees, and rules of conduct such as the one disallowing any clerk of the india house from going to play houses, dancing schools, or taverns. the company established almshouses for its widows and orphans. 	in the muscovy company, renewed its charter for trade in russia and established a new general stock. if a man bought a share, he bought freedom of the company. an annual dividend was declared from the annual profits. 	commercial men regularly kept accounts with bankers. merchants used division to apportion profits or losses to the parties whose capital was involved. simple and compound interest were used. the concept of contract became a familiar one. 	regular private bankers of london emerged from the goldsmiths from to . they issued bank notes and paid checks. 	cromwell increased trade by seizing territories, establishing colonies, and warring with competitors for master of the seas and trade. in it was provided that no one who paid his assessment for soldiers' pay would have to quarter any of them. 	authority was given in to impress seamen: mariners, sailors, watermen, surgeons, gunners, ship carpenters, caukers, coopers, whoymen, and carmen for carriage of victuals. 	english ships were embellished with decoration. their sail area was increased by triangular fore and aft sails. the navy increased from to vessels. 	after serving in foreign wars, ex-soldiers were allowed in to practice any trade without serving a seven year apprenticeship. 	colonies new hampshire and maine were established in , connecticut in , and rhode island in , as offshoots from other colonies. 	in a corporation was established to teach the gospel of jesus christ in new england to indians. 	about , steel was hardened by repeated quenchings and temperings when the steel had reached certain colors. brass was made from copper and zinc alloyed together. 	there were power-driven rolls for the coinage from . strips of silver were passed between engraved rolls. then coins were punched out and their edges serrated. 	in the s, huygens made the first pendulum that worked practically in a mechanical clock. this new clock increased the accuracy of time-keeping tenfold. he also introduced the concept of mathematical expectation into probability theory. 	there was a thermometer which used liquid such as water or alcohol in a glass tube instead of air. 	dutchman stevinus showed that the pressure at the bottom of a column of liquid is proportional to the height of the column, and not to its bulk, about . he also studied oblique forces, and the balancing of such that could bring about "stable equilibrium". 	evangelista torricelli, an italian student of galileo, discovered in that any fluid will be supported at a definite height, according to its relative weight, as compared with air. he realized that a mercury column, inches in height, in a long glass tube inverted in a cup of mercury, was being supported by air pressure exerted on the mercury in the cup. when he observed that this height changed with the weather, he had invented the mercury barometer. in his work, he created and used vacuums. blaise pascal, a french mathematician, physicist, and religious philosopher, was a child prodigy. at the age of , he proved euclid's nd theorem that the sum of the angles of a triangle is equal to two right angles. before age , he wrote a book on conic sections. he is famous for his theorem that a hexagon inscribed in a conic section has the property that the three meeting points of the opposed sides are always in a straight line. he constructed a calculator, which could handle nine-digit numbers, in to assist his father, also a gifted mathematician, in tax computations he did as a local government official. he had torricelli's mercury barometer carried up a mountain and found that the height of the column dropped as altitude increased, and thus that air pressure decreased with altitude. this showed that the attribution of these effects to nature's abhorrence of a vacuum were due instead solely to the weight and pressure of air. he determined that the height to which the mercury rose was the same regardless of the shape of the vessel containing it. around , he did experiments with double vacuums and on the results formulated his principle that pressure applied to a confined liquid is transmitted undiminished through the liquid in all directions regardless of the area to which the pressure is applied. around , he laid the foundations for the theory of probabilities after being asked by a gambling friend why, in playing dice, some frequencies came up more often than others. he developed a means of calculating probabilities with his "pascal's triangle" of coefficients of (a+b) raised to the nth power. each row represents the coefficients of a power one greater than the power of the previous row. each number is the sum of the nearest two numbers in the row above it. he and lawyer and mathematician pierre fermat invented the theory of probabilities. fermat also proved that the law for refraction (bending) of light results from light's following the path that takes the shortest time. he founded number theory, the study of properties of whole numbers, in . fermat formulated the notion of a line tangent to a curve and started the development of differential calculus, in which a rate of change is expressed as a function of time in equation form and also as a tangent to the curve associated with that equation. this work helped lay the foundation for the mathematics field of analysis. he and german gottfried leibniz formulated the principle that an equation with two unknown quantities can represent a curve. leibnitz believed that man's mind can arrive at truths about entities by pure thought. 	jean ray from france concluded from his experiments that every piece of material has a given weight, including air and fire. otto von guericke from germany discovered that, in a vacuum, sound does not travel, fire is extinguished, and animals stop breathing. 	at a time when mathematics was only a business of traders, merchants, seamen, carpenters, and surveyors, mathematician john wallis, the son of a minister, studied sections of cones [circles, ellipses, parabola, and hyperbolas] as curves of the second algebraic degree, i.e. with an exponent of two, i.e. y = (a (x squared)) + b. he also worked with negative and fractional exponents. around he invented the infinite arithmetic and introduced the symbol for infinity. he determined that the area under any curve defined by the equation y = (x to the nth power), was x to the (n+ )th power divided by n+ . he introduced the concept of the limit of a string of numbers. he wrote a treatise on algebra which was historical as well as practical. he also decoded enemy cyphers for the sovereign. 	some english gentlemen interested in the new scientific methods originated by galileo had meetings beginning about to discuss scientific topics. one group met at gresham college and was headed by wallis. another group was led by robert boyle, a philosopher, physicist, and chemist. they wrote in english instead of latin. these meetings later gave rise to the royal society for science. 	since the puritans forbade music in churches, but enjoyed it in domestic circumstances, much secular music was composed, published, and played. there were many musical clubs. the violin became very popular. solo songs were much sung. the first english opera: "the siege of rhodes" was written and performed with women on stage. writers of the time included john milton, political philosopher james harrington, poet edmund waller, thomas fuller, poet abraham cowley, and biographer issak walton. john aubrey wrote anecdotes about famous men. jeremy taylor, chaplain to charles i, wrote on theology. people still read french romances translated into english. dancing was still popular. coffee houses came into prominence as places of social discourse. the first coffee house was established in london in ; ten years later, there were coffee houses in the city. there were elegant pleasure gardens, with a fee for access. they were used for promenades and picnics. ladies and their gallants rendezvoused there. cromwell introduced the habit of port drinking to england. 	in , one general post offices was established with one postmaster general for all of england. no other person could have the horsing of the through-posts. it cost d. for a letter to or from miles of london and d. for one outside miles of london. 	the society of friends was founded by the son of a weaver. they greeted everyone as "friend" and did not bow; remove their hat, as was the custom when before the king or an earl; or otherwise show any reverence to anyone. from , they were called quakers because they trembled when religiously stirred. they reverted to the ancient "thou" and "thee" appellations. their dress was particularly simple, with no buttons, lace, ruffles, or embroidery. they hated ritual so much that they rejected baptism and communion. they did not observe the sabbath as a special day different from other days. they derided the holiness of churches. no clergy were admitted into their sect. when they met for divine worship, each rose to deliver extemporaneous inspirations of the holy ghost. women were admitted to teach the brethren and were considered proper vehicles to convey the dictates of the spirit. quakers believed that every man, in his own life, could be fully victorious over sin. they denied any clerical authority and all texts. they believed in the separation of church and state. they refused to swear to any oath, e.g. in court, or to participate in war. they refused to take off their hats to anyone but god. it was their practice to turn the other cheek when one cheek had been struck. if asked for his cloak, a quaker would give it. he never asked more for his wares than the precise sum which he was determined to accept. the quakers encouraged widows and widowers to provide for children from a first spouse when remarrying. they carefully selected masters and mistresses who wanted to take on child apprentices for their suitability for such responsibility. the education of quaker women did not decline, as it did for other women. from the fervor of their zeal, the quakers broke into churches, disturbed public worship, and harassed the clergyman and audience with railing and reproaches. when brought before a magistrate, they show no reverence but treated him as an equal. sometimes they were thrown into mad house or prisons and sometimes whipped or pilloried. they endured stoically under this suffering. mary fisher from yorkshire introduced quakerism to colonial new england. 	in there were separation agreements between spouses as to property, e.g. support and maintenance. 	cromwell had bad experiences with parliaments. the rump parliament was a remnant of the long parliament. the army and then cromwell, although a member, came to believe that its members were self- interested, preoccupied with perpetuating themselves in seats of power, and corrupt. they thought that their own hopes of reform in the law, in the church, and in public finances were being deliberately frustrated. cromwell came to doubt that it would ever give the people adequate government and protection. he started to believe that one man as chief executive could do this better. cromwell dismissed the rump parliament in . a new constitution created a puritan "parliament of saints". these men were nominated in various ways, such as by church parishes, and selected by cromwell. this one-house parliament of saints in made cromwell lord protector for life with executive power of the state, with responsibility for making peace and establishing order after a decade of civil strife and political chaos. he was to administer the government and be the chief magistrate. it also provided for triennial parliaments consisting of one house, and religious freedom for all except roman catholics and adherents of the formerly established church of england. cromwell did not tolerate the ritual of the formerly established english church nor allow any of its adherents to have any office under him. his was a purely puritan government. he did not sell offices. the parliament of saints challenged many vested interests in property such as sales of delinquents' and papists' lands. it clashed severely over the continuation of tithes to the church. it became disorderly when some declared the parliament dissolved and left. others remained in their seats. to avoid a parliamentary crisis, cromwell had soldiers close the parliament of saints and lock its doors. the people supported this action because they were dissatisfied with the state of public affairs. the next parliament that was tried was elected on a new constitutional basis of men with pounds, but these men voted to make parliament sovereign without a chief executive, thereby abolishing the protectorate. cromwell was distressed that this parliament had also voted themselves to be the sole determinors of atheism and blasphemy instead of advancing liberty of religious conscience and religious toleration as cromwell had advocated. he dissolved this parliament, declaring that it was not acting for the public good. a last parliament was also dissolved by cromwell for tending to loosen the bonds of government and thereby threatening the peace of the nation. 	cromwell had first ruled as a democratic leader who did not believe in force, but preferred to persuade with reason. he initially believed that people would do the right thing according to their consciences, but was disillusioned and then became autocratic. he came to rule as a military dictator. payment of taxes was enforced by distraint. after , he issued about proclamations covering public amusements, roads, finances, the condition of prisons, the imprisonment of debtors, banning of dueling and cockfighting, law reform, control of religion and education, and reorganization of the army. the singing of ballads was banned. the court of chancery was reformed by proclamation. the established church was reformed and the power to interfere with different faiths was denied to it. each parish could choose its form of service, whether presbyterian, congregational, baptist, or any other seen as fundamental by the puritans. no one was compelled to attend any particular church or to accept the discipline of any particular minister. but the book of common prayer was forbidden. there was freedom of worship for presbyterians, independents, baptists, quakers, catholics, and jews who had secretly migrated to england to avoid persecution on the continent, but not prelatists , who favored government of the church by bishops). 	in , cromwell placed major generals in charge of eleven newly- established provinces. as their governors, they had authority to levy troops, exact taxes imposed by the protector, disarm royalists and catholics, examine into the conduct of the clergy and schoolmasters, arrest dangerous and suspicious persons, prevent unlawful assemblies, and to enforce the existing laws against immorality and blasphemy. the only appeal was to the protector. since they were puritans, they ordered public ale houses to close as dusk, banned idlers, minstrels, and actors, forbade exercising of horses on sunday and the holding of markets on saturday as well as sunday, censored the press, and proscribed newspapers. horse races, which meetings were used for seditious purposes, were closed. theaters were closed. dancing was discontinued. organs and choirs in churches were prohibited. court masks continued because they provided soothing music. after a year, cromwell withdrew the major-generals. from this time, men of property hated the idea of a standing army. 	in , the officers of a new parliament modified the constitution and cromwell approved it. it was to secure liberties of the people as they never before had. under the modified constitution, there were again two houses. the commons regained its old right of exclusively deciding on the qualification of its members. parliamentary restrictions were imposed on the choice of members of the council, officers of state, and officers of the army. a fixed revenue was voted to the protector. no moneys were to be raised except by consent of parliament. liberty of worship was guaranteed to all except papists; prelatists; socinians, who denied the divinity of jesus; for those who denied the inspiration of the scriptures. liberty of conscience was secured for all. in , cromwell tried another parliament, but dissolved it because it wrangled without resolution. 	there was continual problem with catholics. mayors, justices and capital burgesses of towns where papists or others had caused rebellion and insurrection and plundered, robbed, pillaged, murdered and raped, were given the power in to call, assemble, train, and arm soldiers for defense. the committee of the militia of london was given authority in to search all houses and places for papists and to search for and seize any arms, ammunition, and war materials in custody of such persons. in , all papists and soldiers of fortune who had borne arms against parliament were ordered to depart from within twenty miles of london and westminster or be imprisoned as traitors. in convicted papists and people marrying convicted papists were required to take an oath renouncing the pope and catholic church or lose two-thirds of their lands and estate, retaining their house on the remaining one-third. if one went to mass in an ambassador's house, the fine was pounds and imprisonment for six months, one half going to the informer. in all householders in london and westminster had to give a list of persons lodging in their house, and the horses and arms there. but the laws against catholics practicing their religion were not rigorously enforced, nor were those against adherents of the formerly established church of england. 	after cromwell died, the people demanded the return of a genuine and free parliament. the old constitution was restored and a new house of commons was elected. it called charles ii to return to be king if he promised religious freedom and backpay to the army, which had not recently been paid. when cromwell's puritan soldiers were disbanded, they did not drift into thievery as royalists soldiers had before, but took up honest work such as baker, mason, brewer, baker, or haberdasher. puritanism now made itself felt not by the sword, but in literature and politics. it affected the character of the english, who tend to be stoics, and imbued capitalists with a hard-working attitude. - the law - 	after the civil wars, the law against enclosure was not enforced. 	what was passed in parliament in cromwell's time were called statutes, but after cromwell's time, these statutes were not recognized as legitimate. 	"whereas public sports do not well agree with public calamities, not public stage-plays with the seasons of humiliation, this being an exercise of sad and pious solemnity, and the other being spectacles of pleasure, too commonly expressing lascivious mirth and levity ... public stage plays shall cease, and be forborne instead of which are recommended to the people of this land the profitable and seasonable considerations of repentance, reconciliation, and peace with god, ..." 	no book or pamphlet may be printed, bound, stitched, or sold or imported unless licensed and entered into the register book of the company of stationers. officials of this company and of parliament may search all places which they shall think meet for all unlicensed printing presses and all suspected printing houses, warehouses, and shops and other places for unlicensed books and pamphlets and papers and seize them and apprehend all authors, printers, and other involved people and bring them before parliament or the committee on examinations for punishment. justices of the peace and other officers may order doors and locks broken for this purpose. the fine is ten pounds for authors, five pounds for printers, two pounds for booksellers, and one pound for buyers who conceal a book bought. one half of each fine shall go to the person who discovers and prosecutes the offender, and the other half shall go to the poor. this law suppressed royalist newspapers but was enforced only with great difficulty. 	all shall observe sunday and days of thanksgiving in their "duties of piety and true religion publicly and privately" and none may sell wares or goods, including fruit or herbs upon pain of forfeiture of such. none may, without reasonable cause, travel, carry burdens, or do any worldly labors or work whatsoever or pay a fine of s. this work shall include grinding grain, fulling in mills, burning turf or earth, gathering taxes, melting wax for candles, brewing, baking, butchering cattle, tailors fitting or carrying clothes, barbers trimming hair, being present at fairs or markets, or washing, whiting, or drying clothes. nor may any one maintain or be present at wrestlings, shooting, bowling, ringing of bells for pleasure or pastime, masks, wake, church-ale, dancing, games, sport or, for those over , forfeit s., and for those having care or education of a child under , d. maypoles, a "heathenish vanity, generally abused to superstition and wickedness", shall be taken down by officers or else forfeit s. per week. if any offender can't pay his fine, he shall be put in the stocks for three hours. however meat maybe dressed in private families, and victual sold in inns and victualing houses in a moderate way, and milk sold before a.m. or after p.m. 	persons of the trinity, angels, or saints shall be demolished. altar and communion tables must not be raised but leveled. there may be no copes, surplices, superstitious vestments, or holy water fonts. there may be no crosses, crucifixes, pictures of the trinity, angels or saints on plates. all organs must be taken away. 	the fine for using the book of common prayer is five pounds for the first offense, ten pounds for the second offense, and one year imprisonment without bail for the third offense. the penalty for writing or preaching against the directory for public worship is five to fifty pounds. 	blasphemies and heresies such as teaching or writing or printing that there is no god, that god is not almighty, that jesus was not divine, that the resurrection of jesus did not occur, that the bible is not the word of god, or that there is no judgment day after death, are felony without benefit of clergy. if such an offender recants, he shall stay in gaol until he obtains two sureties. if he offends again after recantation, it is felony without benefit of clergy. 	in adultery was declared to be a felony, except for a wife whose husband had been beyond the seas for three years or had been reputed to be dead. incest was also declared to be a felony. it was defined as marrying or having carnal knowledge of one's grandparent, parent, sibling, mother's brother or sister, father's wife, mother's husband, son's wife, daughter's husband, wife's mother or daughter, or husband's father or son. fornication was given a punishment of three months imprisonment and until security was obtained for one year for good behavior. it was defined as carnal knowledge of a virgin, unmarried woman, or widow. a common bawd or one keeping a brothel or bawdy house was to be whipped, set in the pillory, marked in the forehead by a hot iron with the letter: b, and then imprisoned for three years without bail and until there were sureties for good behavior for life. the second offense was felony without benefit of clergy. there was to be no corruption of the blood. however, juries were reluctant to convict for adultery and incest. 	there shall be no profane swearing or cursing of forfeit by a lord s., a baronet or knight s., an esquire s., a gentleman s. d., and all others s. d. there is a double fine for the second offense. for the tenth offense, the offender shall be bound by sureties for good behavior for three years. 	a person equating himself or another with god or not believing in god shall be imprisoned for six months without bail. for the second offense, he shall be banished from the nation. 	no longer shall people be punished for nonattendance at church on sunday or days of thanksgiving, but may be at some other place of prayer, preaching, reading, or the scriptures. 	hawkers and ballad singers have been libelous, so are to be whipped as common rogues and then dismissed. also, their ballads and pamphlets are to be confiscated. vagrant, idle, loose, dissolute and disorderly persons and fiddlers in inns, alehouses, and taverns are to be punished as rogues, vagabonds, and sturdy beggars, that is, whipped. 	in , treason against parliament was defined as writing, printing, or declaring that the government is tyrannical, usurped, or unlawful; or that parliament is not the supreme authority of the nation; or plot, contrive, or endeavor to stir up or raise force against the government. attainder for such would not work corruption of the blood. 	treason to the protector was defined the same as it was to the king. 	army deserters are to be corporally punished or executed. 	fellable wood and underwood, but no timber trees, may be cut within miles of london because fuel is needed, especially by the poor. this will be supervised by overseers appointed by parliament. 	no one may import foreign hats or hatbands to relieve that industry in england. 	as of , certain food could not be exported when the prices of such exceeded a stated amount. for instance, pounds for a gallon barrel of beef, d. for a pound of bacon, pounds and s. for a gallon barrel of butter, and s. for pounds of rye, pease, or beans. the customs for such items was more for foreigners than for natives, for instance s. for natives and s. for foreigners for a barrel of beef. 	butter for sale must not be corrupt and be properly weighed. 	one must obtain a license to buy wheat or other grain and put it to sale in meal or flour or else forfeit three times the value. 	all books of the law, writs, pleadings, and patents shall be in english or else forfeit pounds. 	no deer may be killed or else forfeit pounds, half to the informer and half to the poor. 	interest may not exceed pounds for a loan of pounds yearly as of . 	no goods are to be imported from america, asia, or africa except in english ships or else forfeit all goods and the ship, one half of which goes to the one who seizes the goods and prosecutes. none may be imported from europe except in english ships or ships from the country of origin of the goods. no salt fish may be imported or exported but in english vessels. 	there is a pound reward for discovery of highwaymen and burglars or persons who break and enter into houses and there use violence. 	no cart or wagon or carriage on the road may be drawn by more than five horses or six oxen and a horse except for military vehicles. 	notice of intended marriages shall be published once a week for three weeks in a public meeting place called church or a public market place next to church. exceptions to the marriage shall be noted by the register and considered by the justice of the peace before the marriage is performed. the words used shall be: "...promise to be unto thee a loving and faithful husband..." and "promise to be unto thee a loving, faithful, and obedient wife...". 	there shall be no cock-fighting because it disturbs the peace and usually is accompanied by gaming, drinking, swearing, and quarreling. 	anyone challenging or accepting a challenge to duel shall be imprisoned for six months without bail, and must acquire two sureties for a year. anyone fighting a duel in which death ensues, shall be banished for life. 	horse races were forbidden in for six months to discourage mischievous plots and designs by enemies of the state. the penalty was forfeiting the horse. attendees were to be brought to justice. 	as of , a house or building built within ten miles of the walls of the city of london not having at least four acres had to pay a fine of one year's rent. all houses within london or westminster or the suburbs must be brick or stone, and built straight up without protruding into the street or else forfeit pounds. 	as of persons living extravagantly without visible estate or calling may be made by justices of the peace to acquire sureties for good behavior or go to gaol. they would also be sent to the house of correction to work for three months for the first offense and for a time specified by the justice of the peace for the second offense. 	anyone winning at betting or playing at cards, dice, tennis, and horse races shall forfeit double his winnings. 	excluded from pardon were buggery with man [sodomy] or animal [bestiality], carnal ravishment of women, and bigamy. 	husbands were responsible for their wives' oaths and fathers for their daughters'. drunkenness was much punished. - judicial procedure - 	the protector is the supreme magistrate of the commonwealth, with power to pardon all crimes, except murder and treason. 	parliament was no longer a court. 	use of the torture was proscribed in . 	in , the justices were given a salary of , pounds and forbidden to take fees or rewards. they also got tenure, thus freeing them from government pressure. now civil justice was honestly dispensed and justices were learned and honest. 	the jurisdiction of admiralty court was defined to include: ships and vessels with tackle, apparel and furniture thereof; repairing, victualing, and furnishing provisions of ships and vessels for sea; all cases of bottomry [ship-owner indemnified if the vessel were lost, but paid over a substantial share of the profits if it reached its destination safely], contracts beyond the seas concerning shipping or navigation; charter, parties, contracts for freight; bills of lading; mariners wages; damage of goods on board ships; and damage by one ship to another including by anchors or want of laying buoys. it did not include contracts between merchants. - - - chapter - - - - times: - - 	the monarchy was restored and charles ii came to the throne. the episcopacy of the bishops and the book of common prayer were restored. this book retained all its ceremonies, despite opposition by the presbyterians. the confiscated royalist, church, and crown lands were ordered to be restored, and most were. charles ii was presented with the traditional rights of choosing his own privy council, ministers of state, and justices; making foreign policy; controlling the armed forces; and approving statutes. he was also presented with the power to call and dismiss parliament, but later, in , a statute required that parliament be held at least once every three years, to avoid royal schemes of non-parliamentary government. the house of lords was reestablished and there were again bishops in it, though fewer than before - about / instead of about / . there were peers for the next century. the house of commons was elected in the usual way, but without a king's writ. the commons was composed mostly of royalist established church members. its leaders were important members of the king's privy council. 	the feudal tenures of the crown, such as knights' service, were converted into free socage. they were discharged of homage, reliefs, escuage, and aids. charles relinquished purveyance, wardships, and forfeitures of marriage. in return, parliament granted him a fixed yearly income of , pounds from excise tax on beer, cider, and tea. 	several hundreds of dissenter ministers and school teachers were ejected from their positions, but later those who were not baptists were returned by statute of parliament because baptists did not believe in an established church. 	charles ii was an easygoing and kindly man and hard to ruffle. he had a weariness in the folly of men and a cynical disbelief in human virtue. his wit and great sense of humor softened many a potentially tense situation. his restoration to the throne brought in a time of enjoyment of life in reaction to the puritanism of before. at his succession, the elected parliament was oriented toward royalty and the established church. he was voted an income of , , pounds a year. he also sold many of the last crown lands. but he always had great debts, which he described as a "desperate but not serious" situation. this was in part due to his generous maintenance of several successive mistresses and more than about a dozen illegitimate children. his entourage also included physicians, surgeons, a librarian, a poet laureate, chaplains, painters, an historiographer, musicians, a royal composer, and an astronomer. charles even joked on his deathbed that "i am sorry gentlemen, for being such an unconscionable time a-dying." 	the day of charles ii's restoration and birthday was designated as a day of thanksgiving when all were to participate in prayers and the singing of psalms at some church or other suitable public place. 	charles initiated the return of sunday afternoon wrestling, archery, music, and dancing. theaters reopened with actresses playing women's parts, an audience only in front of the stage instead of around it, a drop curtain, and painted two-dimensional scenery. actresses were allowed pursuant to royal proclamation so that plays should become "useful and instructive representations of human life" rather than "harmless delights". charles went to plays regularly. actresses were assumed to be mistresses of patrons in return for their jobs, but one fourth were actually chaste women married to actors. comedies were the preferred plays. courtesans were sympathetically and even admirably treated in plays, which mocked all restraints and glorified immorality with the exception of pornography, which was banned. bad actors were hissed off the stage. henry purcell wrote religious music for churches, ceremonial music for the english court, and theater music for english opera. opera made music a vehicle for human emotions. the gentry sang to the lute and danced to string instruments. many owned and played musical instruments. humble people had folksongs and instruments like the pipe and tabor for dancing. singing in parts was popular in town and country. in john banister started the first regular series of public concerts in his house. there were lovely formal gardens in which to walk, to see fireworks, and to buy the new ice cream. charles did much garden and park planning and let the public enjoy the royal st. james park. he loved hunting too and had the royal forests replenished with deer after poaching during the cromwell era had greatly reduced their numbers. 	charles ii introduced sailing and yacht racing for pleasure. he also participated in and promoted horse racing. the breeding of thoroughbred horses began with breeding to arab mares. gelding horses were now preferred over stallions. there were trotters, cart horses, and some "fast" race horses. boxing (with no gloves nor ring) was a national sport. ice skating with iron blades was popular. valentine's day was celebrated. italian puppet shows played in london. 	dress returned to elaborateness. gentlemen wore cavalier-style long wigs with curls, despite the church's dislike of wigs. this could hide the short hair of a former puritan roundhead. in , charles introduced a new mode of inexpensive court dress which was made entirely from english textiles. this gave rise to gentlemen's weskits to below the knee with a coat of the same length and full sleeves. stockings and shoes replaced the long fitted boots. charles set a court tradition of men wearing a scarf tied around the neck. ladies often wore their hair in masses of ringlets with little corkscrew curls on each side of their heads, and later piled their hair up elaborately on their heads. they wore satin or silk dresses fitted at the waist with a pointed bodice, and full skirt. the shoulder line was low and the sleeves full and open at the front with fastenings of jeweled clasps. the only fast colors were reds, blues, purple, and yellow, but not green. they kept their hands warm in muffs. women wore perfume, rouge, and face patches. some women put on a lot of make-up. many men dressed effeminately with rouge, face patches, heavily scented clothing, muffs, and many ribbons of many colors. the facial beauty patches were in shapes such as stars, crescent moons, and hearts; they diverted attention from the common smallpox scars. there were oxford shoes, which laced up the front through eyelets. the members of the house of commons dressed like the gentry and assumed their manners. there was exaggeration in all complimentary and ceremonial language. 	the gentry were beginning to be thought of as a "squirearchy". they owned about half the land of the country. the population according to class was as follows: number of social ranks, household household households degrees, titles size yearly income in pounds temporal lords , spiritual lords , baronets knights , esquires , gentlemen , persons in greater offices and places , persons in lesser offices and places , eminent merchants and traders by sea , lesser merchants and traders by sea , persons in the law , eminent clergymen , lesser clergymen , freeholders of the better sort , freeholders of the lesser sort . , farmers . , persons in liberal arts and sciences , shopkeepers and tradesmen . , artisans and handicrafts , naval officers , military officers , common seamen , laboring people and out-servants . , cottagers and paupers . . , common soldiers , vagrants, as gypsies, thieves, beggar as can be seen, agriculture is still the most common occupation. 	great houses now had a central dining chamber for dining, with sets of suites, usually for couples, around it. each suite had an ante-chamber and/or drawing room, and then a bedchamber, off of which there was a servant's room and a closet [cabinet]. no longer did personal servants bed down in the drawing room or outside their master's door or in a truckle bed at his feet. the servant's room was connected to a back staircase for use by servants. secret guests also used it. the csbinet room was the innermost sanctum for privacy and gave its name to the later cabinet of the government. 	there were fewer servants and they were of a lower social status than before. they were often sons of merchants, clergymen, and army officers. gentlemen no longer advanced by service to a great man, but instead through grammar school and university education, commerce, the law, or the armed services. this change came about because the state now maintained reasonable law and order. there were more female servants, who were paid less to cook and to clean as well as do laundry and nursing. servants were kept more in the background, preferably out of sight. the elaborate ceremonial ritual with sewer, carver, and cupbearer was gone. a butler replaced the yeomen of the buttery, ewery, and pantry, and footmen began to wait on the table at which the lord, his lady, and other couples sat. servants no longer had meals in the hall, which now had a grand staircase up to the dining chamber. the highest servants, the officers: clerk of the kitchen, clerk of the check [comptroller], head cook, butler, and groom of the chambers, and female housekeeper ate in the gentleman-of the-horse's room, although at a separate table. the kitchen staff ate in the kitchen. the footmen, underbutler, porters, coachmen, grooms, stable-boys, gardeners, maids ate in a servants� room. the steward was no longer the chief household officer, but had a room near the kitchen. the bulk of the servants slept in the basement or subordinate wings of the house. 	great houses of nobles had more rooms, such as a chapel, library, parlors, dressings rooms, and galleries; there was a variety of architectural floor plans. the structure of a noble household of an earl was as follows: the chief official was the receiver general. he had financial responsibility for the household and prepared accounts for the household and for the tenants' estates. these were checked by an auditor. the receiver general was often the son of a country gentleman and had a salary of pounds raised to pounds with longevity. he had a servant and an assistant. if married, he had a house on the property. there was perhaps an attorney on retainer who were paid for a certain number of hours per week or month. the gentleman of the privy purse kept the accounts of the family and bought them apparel and toiletries. he was in close personal attendance upon the earl. his salary was pounds a year. besides the receiver general and the gentleman of the chamber, the tutor and chaplain had the closest personal contact with the family. the lady had a gentlewoman with a maid servant. the receiver general supervised most of the staff. there was a steward of pounds a year. he supervised a clerk of the kitchen and a house bailiff of pounds a year. the bailiff had responsibility for the produce of the estate, e.g. the gardens, the deer park, and the fish ponds. under the clerk of the kitchen was the cook man and kitchen boys, the latter of whom were clothed and fed, but not paid. the steward also supervised the pound yearly porters, who kept the gates; the watchmen outside; and the head housekeeper, usually a woman of to pounds yearly. she supervised the laundry maid and general maids, who spent much of their time sewing. the steward was also responsible for the wine cellar. a dozen footmen belonged partly to the house and partly to the stables and received to pounds yearly. they waited on the lord and lady in the house and accompanied them in travels and did errands for them. the gentleman of the horse supervised the stables, coach, dogs, kennels, and pound yearly huntsman. boy pages also worked partly in the house and partly in the stables. they were clothed and fed, but not paid. the head gardener received pounds for tending the flowers, vegetables, and fruit trees. he had casual workers as needed to assist him. the steward was also responsible for the london house. here there was a housekeeper, a watchman, and a pound a year gardener, all there permanently. when the lord was there, bargemen were employed for his barge. the salaries for the family estate totaled about pounds a year. sometimes married sons' or daughters' families stayed for months at the family estate; then they would pay for their part of the food. 	well-to-do people drank imported tea and coffee, sometimes from porcelain ware, and usually after dinner or supper. most tea leaves were brewed first for the family and guests and a second time for the servants; then they were given to the servants' relatives or friends. queen mary encouraged the fashion of collecting chinese porcelain. the rich had red or black and gilt lacquered cabinets and cupboards. oak gave way to walnut, with its variegated surfaces. there were grandfather clocks. some fireplaces now had cast-iron firebacks. stuffing began to be upholstered to woodwork benches. chairs were taller in the back. ladies did needlework to cover them and also made patchwork quilts. cane seats came into fashion. 	from the spring of to the end of there was a great plague, mostly in london. it was the last and worst plague since the black death of . it lasted over a year and about one-third died from it. households with a plague victim were walled up with its residents inside to reduce contagion, and then marked with a red cross. church bells tolling their requiems clanged in ceaseless discord. the mournful cry "bring out your dead" echoed in deserted streets. at night groups of people shoveled the corpses into open graves. to prepare for this revolting task, they often first became drunk out of their senses. people acquired wild beliefs in hope of avoiding the plague. for instance, at one time it was thought that syphilis would prevent it, so maddened hordes stormed the brothels. at another time, it was rumored that the plague could be burned out of the air, and all one day bonfires blazed outside every door and people sweltered in the heat. other localities posted sentries on the road to keep londoners out of their areas to prevent the plague from spreading there. since sneezing was thought to be the first sign of a person getting the plague, it became common to ask god to bless a person who sneezed. in london, statistics were collected on the number of plague victims and their places of death to try to determine the cause of the plague by correlation, a new method. this was a natural sequent to merchant john gaunt's book "natural and political observations made upon the bills of mortality", which compiled yearly vital statistics from which to analyze, for instance, causes of death due to particular diseases. it reached conclusions such as that fall was the most unhealthy season; females had longer life spans than males; and infant mortality was very high. 	in a fire destroyed three-fourths of the city of london. the blazing buildings were so hot that people with leather buckets of water, hand squirts, and manually operated water-pumping machines could not get near them. there was a lot of noise from falling buildings. panic and desperation were widespread. there was a lot of crying out and running about distractedly. people saved some of their possessions by burying them or removing them from the fire's path as they moved to different lodgings. the streets were full of carts piled high with furniture and merchandise. the thames river was thick with heavily laden barges. melting lead from st. paul's church ran down the streets in a stream. the tower of london, upwind of the fire, was saved by blowing up surrounding buildings. eventually the wind abated and the fire was put out. a fire court with royal justices was created to offer settlement terms about property that were free, fair, fast, and final. army tents and supplies, and soup kitchens sustained the citizens in the fields. 	after the fire, buildings had to be brick or stone rather than wood, except for doors and windows. also, more plaster and tile was used. all roofs had to be of tile or slate, rather than thatch. there was a general use of tile for roofing. about , came slate for roofings. all buildings had to be at least two stories high, with flat facades rather than overhanging upper floors. they had to have wide brick walls around them to avoid the spread of fires. many streets, squares, and alleys were professionally planned, after the example of inigo jones, who had continued his town planning with lincoln's inn field's open square surrounded by houses with iron balconies. another example was leiscester square. main streets had to be wide enough to stop a fire. the street selling that had caused so much congestion was removed to new market places. the massive rebuilding of london ended the monopoly of the building trade claimed by the mason's company. astronomer and geometrician christopher wren designed and built a new st. paul's cathedral and many churches in london, thus becoming england's first architect. he worked up from a square base through all sorts of shapes to a circular double dome on top. the fire put an end to whitehall as a royal residence and st. james palace was used instead. but at least one fire hazard remained: the practice of lighting new fires by taking buckets of hot coals from one room or house to another. this was faster than the several minutes it took to use a tinder box to start a flame, i.e. striking a piece of flint upon a piece of steel making a spark which was dropped onto tinder and then blown upon. matches were invented in this period, but expensive and unsafe. 	nicholas barbon began fire insurance in the s. if fire broke out on an insured premises, the insurance company's firemen would come with leather buckets and grappling irons, and later small hand pumps. barbon also redeveloped many districts in london, tearing down old buildings without hesitation. he started the system of selling off leases to individual builders, who hoped to recover their building costs by selling their houses before they were completed and before substantial payments on the lease became due. entrepreneurial master-builders subcontracted work to craftsmen and took a large profit or a large loss and debt. aristocrats bought large parcels of land on which they built their own mansions surrounded by lots to be rented to building contractors and speculators like barbon. the houses built on these lots were sold and the underlying land rented. these rentals of land made the mansions self-supporting. barbon built rows of identical townhouses. sometimes houses were built on all the lots around a square, which had gardens reserved for the use of those who lived on the square. most of the new building was beyond the old city walls. marine insurance for storms, shipwreck, piracy, mutiny, and enemy action was also initiated. before the fire, e.g. in tudor times, the writing of risks had been carried on as a sideline by merchants, bankers, and even money lenders in their private offices and was a private transaction between individuals. 	london was residential and commercial. around the outside were tenements of the poor. from to , london's population had risen tenfold, while the nation's had only doubled. london went from % to % of the nation's population. in , london's population was about half a million. after , london's population grew at the same rate as the nation's. the first directory of addresses in london was published in . business began to follow the clock more strictly and many people thought of their watches as a necessity. 	london coffee houses, which also sold wine, liquors, and meals, became specialty meeting places. they were quieter and cheaper than taverns; for a penny, one could sip a cup of coffee by the fire, read the newspapers, and engage in conversation. merchants, stock jobbers, politician groups, soldiers, doctors and clergymen, scholars, and literary men all had special coffee house meeting places. notices and letters of general interest were posted therein. many merchants, brokers, and underwriters, especially those whose houses had been burned in the fire, conducted their business at their coffee house and used it as their business address. men in marine insurance and shipping met at lloyd's coffeehouse, which was run by edward lloyd who established it for this purpose in . lloyd provided reliable shipping news with a network of correspondents in the principal ports at home and on the continent and circulated a handwritten sheet of lists of vessels and their latest movements at his coffeehouse. the patrons cheered safe arrivals and shared their grief over ships lost. they insured their own risks at one moment and underwrote those of their friends the next. auctions of goods and of ships and ship materials which had been advertised in the newspapers were conducted from a pulpit in the coffeehouse. 	french wine was consumed less because of heavy taxation and spirits and beer were consumed more. the streets were alive with taverns, coffee houses, eating houses, and hackney coaches past p.m. at night. coffee houses were suppressed by royal proclamation in because "malicious and scandalous reports" defaming his majesty's government were spread there, which disturbed the peace and quiet of the realm. but this provoked such an uproar that it was reduced to a responsibility of the owner to prevent scandalous papers and libels from being read and hindering any declarations any false and scandalous reports against the government or its ministers. 	london air was filthy with smoke from coal burning. in the streets were lit with improved lights which combined oil lamps with lenses and reflectors. groups of householders combined to hire lighting contractors to fulfill their statutory responsibility to hang candles or lights in some part of their houses near the street to light it for passengers until : p.m., and later to midnight. in a monopoly was sold to one lighting company. in a body of paid watchmen was established in london. an office of magistrate was created and filled with tradesmen and craftsmen, who could make a living from the fines and fees. this was to supplement the unpaid justices of the peace. the public was encouraged to assist in crime prevention, such as being witnesses, but most policing was left to the parishes. crowds punished those who transgressed community moral standards, threatened their economic or social interests, or offended their religious or patriotic beliefs. often a crowd would react before the call of "stop thief" or the hue and cry from the local constable. pickpockets would be drenched under a pump. cheats would be beaten up. dishonest shops and brothels would be ransacked or destroyed. the most common targets were promiscuous women and pregnant servants. 	there were many highway robberies and mob actions in london. mobs in the thousands would turn out against the catholics, especially at times of unemployment and trade depression. working people still saw demonstrations and violence as the best way to achieve their economic goals, since strikes didn't work. for example, the silk workers used street violence to get protective legislation against imports and mechanization in . the manufacture of silk material had been brought to england by french workers driven from france. in , three thousand london silk weavers demonstrated outside the commons and east india house against the importation of raw silks by the east india co., and a couple months later, they attacked a house in the city owned by a gentleman of the company. in , heavy duties were imposed on the import of indian silks and wearing of indian silks was prohibited by statute. sometimes mobs would break open the prisons to release fellow rioters or take action against strike breakers or informers. parish constables elected by their neighbors could not control the mobs and stayed within their parishes. dueling was still prevalent, even though against the law. 	in london and westminster, it was hard to enforce the requirement that inhabitants keep the street in front of their house clean and store the filth until the daily raker or scavenger came with cart and dung pot. so a commission was made responsible for paving and keeping clean the streets, making and repairing vaults, sewers, drains, and gutters, and removing encroachments. it compensated those with encroachments of over years. it assessed inhabitants of such streets d. per square yard from the front of their building to the center of the street. women continued to empty their pails and pans outside their doors and did their washing on stools in the streets. there was a penalty of d. for throwing filth in front of one's house, and d. for throwing it elsewhere in the streets. scavengers and rakers could lodge their coal ashes, dust, dirt, and other filth in such vacant public places as the commission deemed convenient for accommodating country carts returning otherwise empty after their loads were sold. 	however, this system did not work because people would not pay their assessments. so there was a return to the former system of requiring citizens to sweep and clean the streets in front of their buildings twice a week and keep the filth until a scavenger or raker came. the penalty for not doing so was s. d., later raised to s. any one throwing coal ashes, dust, dirt, rubbish, or dung onto the streets or lanes incurred a fine of s. there was a fine of s. for hooping or washing any pipes or barrels in any lane or open passage or repairing coaches, sawing wood, or chiseling stones in the streets. pigs kept in or about one's house had to be forfeited. 	one way that people traveled was to be carried in sedan chairs held up by two horizontal poles with one man at the front ends and another man in back. there were so many sedan chairs and coaches for hire in london that the watermen lost business. all hackney coaches in london or westminster were required to be licensed and marked with their owner's distinctive mark so that complaints could be made. their maximum rate was s. for a hour day, and d. for the first hour and d. for every hour thereafter. licensed coachmen were not allowed to practice any other trade. the coaches paid the commission pounds yearly. hay sold along the road brought d. per load, and straw d. per load, to the commission. there had to by paid d. for every cart load of hay sold at the hay market and d. for every cart of straw, to go towards paving and repairing the hay market street. overall, agriculture improved. fields that would have been left fallow were planted with new crops which restored indispensable chemical elements to the soil. at the same time, they supplied winter food for stock. the size and weight of animals for slaughter grew. there was so much stock breeding that it was more economical for a family to buy meat, milk, and eggs, than to maintain its own animals. there was an explosion in the growing of beans, peas, lettuce, asparagus, artichokes, and clover. the demand for food in london and other urban areas made enclosure for crop cultivation even more profitable than for sheep grazing. the government made no more attempts to curtail the enclosure of farm lands. the number of enclosures grew because copyholders were not successful in obtaining the legal security of tenure. but most land was not enclosed. 	in in the county of essex, the wages for mowing one acre of grass were s. d.; for reaping, shearing, binding one acre of wheat s.; and for threshing a quarter of wheat or rye s. 	wives participated with their husbands in general agricultural chores and did the dairy work including making cheese. every householder kept chickens because egg production was cheap, their market price being only s. for a hundred. wives also took care of the gardening work and traditionally kept for their own the cash that came in from garden, dairy, and poultry products. a wife made jellies and preserves when the fruit trees, bushes, and vines were bearing. imported sugar enabled fruit to be preserved as jam in jars sealed with a layer of mutton fat to make them airtight. she was likely to concoct medications from her herbs. meat had to be smoked or salted when there was not enough fodder to keep animals alive through the winter. she saw to it that the soap was boiled and the candles molded. she cooked the daily meals, did the washing, produced cloth for the family's use, and sewed the family's clothing. 	women had less work and lower pay than men. since most cottages had a spinning wheel, spinning work was readily available to wives. in the s, a female weaver or spinner was paid - d. per day. a domestic servant, who was usually female, was paid - s. a year. men in the trades objected to competition from lower-paid women. aristocratic ladies actively managed their family's household and estates. the only work available to a high middle- class woman who was waiting to get married was to be a governess in another household or a lady-in-waiting to a gentlewoman. children often worked; this was recommended so that they were under the direct supervision of their parents rather than getting into mischief in the village. the mother typically mingled severity with gentleness, but the father did not dare to err on the side of leniency. discipline was by whipping. children were treated as little adults. the lack of a conception of childhood innocence even extended to the practice of adults to tell bawdy jokes in their presence or play with their children's genitals. 	about , the royal society of london for the promotion of natural knowledge was founded by charles ii, who became its patron. it was formed from discussion groups of the new experimental philosophy. it included the baconians formerly at oxford and cambridge, who were ejected at the restoration, and a group of gresham professors of geometry and astronomy. the royal society met at gresham college. its goal was to compare ideas in mathematics and science and identify specific aims of science. it published scientific reports to make its findings generally known. this was a great improvement over the private correspondence among scientists, which was limited by the use of various languages. charles himself had his own laboratory and dabbled in chemistry and anatomy. similar societies were formed in many places in the world. theologicians warned that scientific research was dangerous. but it's advances improved agriculture, manufactures, medicine, surgery, navigation, naval architecture, gunnery, and engineering. 	issac newton was a genius, who in his childhood designed and built model windmills, water wheels, water clocks, sundials, and kites. he came from a family which had risen from the yeomen ranks to the gentry. for a few years after graduating from cambridge university in , he secluded himself in the countryside to study. here, using the work of john wallis, he formulated the binomial theorem that expands (a+b) raised to the nth exponent power, where n is an integer. he also worked with numbers that had exponents that were fractions, unending decimals, or negative numbers. certain patterns of numbers, such as the sum of doubling each number in a series as in: + + + +...never terminates; the series is infinite. he then developed the notion of a number being the limit of the summation of an infinite converging series of a pattern of numbers, such as the limit of +( / )+( / )+( / )...= . by considering the state of motion of a mass-point in an infinitely short time under the influence of an external force, he developed rules for finding areas under algebraic curves [integration], such as the hyperbola, and finding tangents to algebraic curves [differentiation], which he recognized as inverse processes. that is, differentiating the integral of a function results in a return to that function. 	newton discovered that colors arose from the separation, rather than a modification, of white light, that is natural sunlight. he did this using a prism to dissect the white light into its spectrum of constituent colors and then using a prism and lens to recombine the colors to reconstitute white light. the spectrum was the same as that of a rainbow. he determined the angle of refraction of each color by beaming white light through a prism, and then through a hole in a board which isolated one color, to another prism. when he discovered that all colors reflect from a mirror at the same angle, he invented and built the reflecting telescope, which used a parabolic concave mirror and a flat mirror instead of a convex lens, thereby eliminating the distortions and rainbow coloring around the edges that resulted from the refraction of different colors at different angles. he deemed a ray of light to consist of a rapidly moving stream of atomic particles, rather than robert hooke's pulses or christian huygens' waves, because shadows showed a sharp boundary between the light and the absence of light. he reasoned that if light was made up of pulses or waves, it could spread around obstacles or corners as sound seemed to do. he approximated the speed of sound by timing echoes in corridors of various lengths. 	newton was methodical and combined the inductive and deductive methods of inquiry, first making observations, and then generalizing them into a theory, and finally deducing consequences from the theory which could be tested by observation. he carried mathematization of data from experiments as far as possible. 	newton theorized that the same gravity force that pulled an apple down from a tree extended out to the moon to hold it in its orbit around the earth. he saw a connection between these movements by imagining a cannon on a mountain shooting a series of cannonballs parallel to the earth's surface. the first shot has only a tiny charge of explosive, and the cannonball barely makes it out of the muzzle before falling to the ground. the second shot is propelled by a larger charge, and follows a parabolic arc as it falls. the next shots, fired with increasingly more propellant, eventually disappear over the horizon as they fall. lastly, with enough gunpowder, a speeding cannonball would completely circle the earth without hitting it. by extrapolating from these ever faster projectiles, he opined that the moon was held in its orbit by the same earth force that operated on the projectiles. he correlated the moon's orbit with the measured acceleration of gravity on the surface of the earth. he put various substances with different masses and weights into the shell of a pendulum and observed that the pendulum had the same period [time for one oscillation] and fell at the same rate as free-falling objects. then he formulated the idea that the ultimate agent of nature was a force acting between bodies rather than a moving body itself. gravity did not act in proportion to the surfaces of bodies, but in proportion to quantity of matter. gravity penetrated to the very center of all bodies without diminution by the body. gravity's force extended to immense distances and decreased in exact proportion to the square of the distance. 	newton opined that an object moves because of external forces on it rather than by forces internal to the object. these are his three laws of motion. ) he connected the concepts of force and acceleration with a new concept, that of mass. mass is a quantity intrinsic to an object that determines how it responds to forces, such as the force of gravity. the greater the mass of a body, the stronger the force of gravity on it, and the more difficult it is to get it moving. he found that the acceleration of a body by a force is inversely proportional to its mass, and formulated the equation that force equals mass multiplied by acceleration. so if a force acts on a planet, it produces a change in velocity that is proportional to the force and in the same direction as the force. ) his law of inertia is that any body, persists in its state of rest or of uniform motion in a straight line, unless affected by an outside force. ) his next law is that when a body a exerts a force on a body b, then b also exerts a force on a which is equal in amount but opposite in direction. this means that forces that operate between different parts of a planet produce no net force upon the whole planet, so that the mass of a planet can be treated as if it is concentrated at a point. 	his law of gravitation explains how the whole universe is held together. this law holds that every object in the universe attracts every other object with a single gravitational force that is directly proportional to the product of their masses and inversely proportional to the square of the distance between their centers. newton had at first accepted the cartesian system of celestial vortices of aether that swirled the planets and comets around their orbits. he determined that kepler's law that areas were swept out in equal times implied that gravity acts in the direction of a line between the planet and the sun. the gross features of the universe and kepler's observations led to his recognition that the attraction between two bodies decreases inversely in proportion to the square of the distance between them. only one kind of force would satisfy kepler's requirement that the sun was a focus of an ellipse and still be consistent with kepler's law that the square of a planet's period was proportional to the cube of its mean distance from the sun; that was the inverse square law. then he came to accept robert hooke's hypothesis that planets are kept in their orbits by the combination of an attractive power of the sun and of motion in a straight line that was tangential to their orbits. from astronomical data, he calculated this centripetal acceleration of each planet towards the sun to be proportional to the inverse square of its distance from the sun. he also calculated the "centrifugal" accelerations in a straight line. his experiments showed that the centripetal force in a circular orbit was equal to the mass of the body multiplied by the square of its velocity, all divided by the radius of the circular path. he used calculus and differential equations to determine centripetal forces of elliptical orbits, where the distance from the sun, the velocity, and the acceleration were variables. 	newton showed that his single gravitational force could account for the way free-falling objects descend to the ground, the parabolic trajectory of projectiles, the path of the moon in its orbit around the earth, the course of the tides every twelve hours, the lower densities of the earth's atmosphere at greater heights, the paths of jupiter's moons, the paths of comets, and the elliptical paths of the planets in their orbits around the sun. this determination discredited the previous belief that invisible angels moved the planets. newton proved from his law of gravitation and his three laws of motion the truth of kepler's laws of elliptical planetary motion. newton demonstrated from data collected from the comet of that comets moved according to his law of gravitation. he showed that the path of a body traveling within the gravitational force of the sun is a circle, an ellipse, a parabola, or a hyperbola. he used the concept of a common center of gravity as a reference point for other motions. the fact that the center of gravity of the solar system was within the body of the sun verified that the sun was indeed at the center of the solar system. 	newton deduced that the tides were created by the rotation of the earth with bulges of water on the earth's surfaces that were closest and farthest from the moon. the moon "pulled" the water nearest to it with a greater force than average. it "pulled" the water farthest from it with a force weaker than average. these two moving bulges created two tides a day. 	newton's "principia mathematica philosophiae naturalis", was published in . the established church denounced it as being against the scripture of the bible. newton did not agree with the established church on many points, such as the trinity, and was considered a heretic. he had his own interpretations of the bible and doubted the divinity of jesus. but it was accepted for dissenters like newton to qualify for full civil rights by maintaining an outward conformity and taking the sacrament in the established church once a year. newton was given a royal dispensation from taking holy orders as prescribed by the rules for tenure of fellows of his college at cambridge university. he did believe in a god who created the universe and who had a ubiquitous presence in all space. when catholic king james ii tried to have a catholic monk admitted to the degree of a master of arts at cambridge university without taking the oath of adherence to the established protestant church, so that he could participate in the business of the university, newton was active in the opposition that defeated this attempt. as a result, he was elected to parliament by cambridge. 	when olaus roemer, a danish astronomer, was applying newton's laws to the paths of the moons of jupiter to make a table of eclipses of jupiter's moons for use in determining one's longitude, he noticed that the eclipses were five hundred seconds ahead of average time at that time of year when the earth and jupiter were on the same side of the sun, and five hundred seconds behind average time six months later, when jupiter was on the other side of the sun. he reasoned that this difference was due to the light from jupiter's moons taking more time to reach the earth when jupiter was farther from the earth, i.e. on the other side of the sun. he concluded that light does not travel instantaneously, but at a certain speed. from the fact that it took seconds for light to travel the diameter of the earth's orbit, he calculated its speed in . 	in , christian huygens formulated the law of conservation of momentum [mass multiplied by velocity], which held that when objects collide, they may each change direction, but the sum of all their momenta will remain the same. huygens also recognized the conservation of what was later called "kinetic energy", which is associated with movement. he developed laws of centrifugal force for uniform motion in a circle. he derived the formula for computing the oscillations of a simple pendulum. in , he posited the theory that light consists of a series of waves. it states that all points of a wave front of light in a vacuum may be regarded as new sources of wavelets that expand in every at a rate depending on their velocities. he thought this a better explanation of bending and interference of light than newton's particle theory. 	in , robert boyle, called the father of modern chemistry, defined an element as a substance that cannot be further decomposed. he distinguished an element from both a mixture, which is easily separable, and a compound, which is not easily separable. he used an air pump he developed and a glass jar to create a confined vacuum space for experiments to find the properties of heat, light, and sound. he noted that burning objects such as candles and coal, when placed in the receiver of his air pump, went out after a time although air was still present. he opined that animals were dependent upon a fresh supply of air to live. he studied the relationship between the volume, density, and pressure of air and gases. he proved by experiment that the volume of a gas at a constant temperature varies in inverse proportion to the pressure applied to the gas. since gas is compressible, he opined that gases must be composed of discrete particles separated by void, and also that basic physical properties were due to motions of particles, or atoms, which was an ancient greek conjecture. this cast doubt on the long-held belief that everything was composed from four basic elements: air, water, fire, and earth. boyle's laboratory at oxford was denounced by the oxford clergy as destroying religion. in , the steam pressure cooker was invented by denis papin from france. he invented the atmospheric engine in . 	robert hooke helped boyle build his air pump. hooke was thirteen when his father, a minister, died. hooke was a genius with innate mechanical skill and was an able mathematician. he applied a spiral spring to regulate the balance of watches. a lord financed him as a gresham lecturer of geometry for pounds a year. in , he used a pendulum to measure the force of gravity and showed that the center of gravity of the earth and moon is a point describing an ellipse around the sun. in , he explained the twinkling of the stars by irregular atmospheric refractions. he formulated the theory that light is composed of pulses. hooke's law states that the amount an elastic body such as a spring stretches out of shape is in direct proportion to the force acting on it: its tension. he invented the odometer, a wheel to measure distances. he constructed an arithmetical machine. he invented the universal joint, which can move in many angles. his book of drawings of microscopic animals is a classic. he proposed that fossils can be used as a source of information about the earth's history. hooke became rich from his inventions, but this was not known until his death, when thousands of pounds were found in his iron chest. 	in , wallis postulated the correct theory of impacts of inelastic bodies, based on the principle of conservation of momentum. in , he introduced the first graphical representation of complex numbers. 	royal astronomer and genius edmond halley, the son of a soap maker, studied tides, magnetism, and the paths of comets and stars. he went on voyages to study the heavens from different positions, thereby laying the foundations of physical geography. he showed that the stars change in position in relation to each other. with newton's help, he calculated the orbit of a comet he saw in to be elliptical rather than parabolic and then proved it was the same comet that had appeared in and , indicating it's regularity; it was then named "halley's comet". however, the church of england still embraced the idea that comets and eclipses were evidence of god's wrath. greenwich observatory was built in . halley used a barometer to measure the density of the atmosphere and related its readings to elevations into the atmosphere and to weather. he determined that the cause of the tropical trade winds was the sun warming the tropical air at the equator, causing it to rise and move north as it was replaced by cooler air from the north. this body of air was deflected by the rotation of the earth. he illustrated the tropical winds with the first meteorological map. he made a descent in a diving bell, which was used to try to reach wrecked treasure ships. he studied fossils and perceived them as remnants of living beings that had died long ago, and imagined a succession of living things. halley surveyed the tides and coasts of the british channel for the king in . 	in , apothecary nicolas lemery divided substances into mineral, vegetable, and animal. he wrote a dictionary of pharmaceuticals. 	john ray and francis willoughby were friends who traveled together to study plants and animals respectively. john ray started the science of zoology with his edition of francis willoughby's "ornithology" on birds and his own "history of fishes". he also attempted the first scientific classification of animals in his "synopsis of quadrupeds". ray compared anatomies and experimented on movements of plants and the ascent of sap. he knew that fossils were remnants of old animals. ray first suggested the concept of species in classification of animals and plants. he opined that the goodness and wisdom of god was shown not only by the usefulness of animals to man's uses as taught by the church, but also by the adaptation of animals to their own lives and surroundings. the vast array and dispersal of animals found by world explorers all over the world cast doubt on the biblical story of noah putting two of every kind of animal on an ark. the science of botany began with ray's "history of plants" and the researches of robert morrison, who was charles' physician and keeper of his gardens. 	nicholaus steno, a danish physician, diagrammed six levels of stratification on the earth's surface and demonstrated in that layers of strata of rock are always deposited with the oldest layers on the bottom and the youngest layers on the top. this began the science of geology. he argued that shifts in the earth's strata caused the formation of mountains. he identified fossils as ancient creatures. the idea that fossils were remnants of dead animals existing before man conflicted with the religious idea that adam's fall began sin and caused death. the idea from fossils that existing species of animals were modifications of predecessor animals conflicted with the religious belief that noah's ark had preserved all the varieties of animals. john aubrey described stonehenge, thus founding prehistoric archaeology. he thought it to be a druid temple. 	the telescope and compound microscope, which has an objective lens and an eyepiece lens for producing a wide range of magnifications, were further developed. the cellular basis of life was discovered and described by robert hooke. nehemia grew, the son of a grammar school master who became a physician, observed and drew plant anatomy, including leaves, flowers, fruits, seeds, ovules, pollen grains, and stamens. he was the first to observe the existence of plant sexuality. italian marcello malpighi, a physician, used the new compound microscope to study human skin, spleen, kidneys, and liver and also compared the livers of several types of animals. he discovered capillaries linking the arterial and venous circulation in the lungs. dutchman anton van leeuwenhock, a cloth manufacturer who made microscopes to inspect the quality of cloth, turned them to use in understanding the life cycles of mites, lice, and fleas. he correctly described human blood cells. when he found what he described as tiny animals (bacteria, protozoa, and rotifers), he sent clear descriptions of them to the royal society in london as proof against the theory of spontaneous generation, which held that lower forms of life could arise from nonliving matter. this started the science of bacteriology. with the discovery of the egg in the female reproductive system, the status of women was lifted. 	physician thomas willis, son of a farmer, dissected brains of men and animals to study the anatomical relations of nerves and arteries. excess urine had been associated with a wasting disease. willis identified diabetes mellitus with excess of urine that was sweet. physician thomas sydenham, son of a gentleman, observed epidemic diseases of london over successive years, thus founding epidemiology. he also furthered clinical medicine by emphasizing detailed observations of patients and maintaining accurate records. he wrote a treatise on gout and identified scarlet fever. he introduced a cooling method of treating smallpox. but he still relied on the big three treatments: bloodletting, purging, and sweating. bloodletting was to draw off bad blood so that it could be replaced by a better fluid. another treatment used was cupping, whereby a vacuum was created by heated glass cups to draw blood to the surface of the skin. john locke performed one of the first successful operations draining a kind of abscess of a man's liver. it was common for people who felt ill to take a laxative and rest at home. 	in , physicians opened the first dispensaries, which gave treatment and medicine together, to take business away from their rivals: the apothecaries. london's apothecaries were released in from jury service and service as constable, scavenger, or other parish or ward office because it was necessary that they be available to attend the sick at all times. peruvian bark which had quinine as its alkaloid had been introduced as a proven cure for the ague, a fever with chills usually due to malaria, in . the english ceased to believe in holy wells, but went to spas such as bath for treatment of disease. there was more bathing because private homes in towns now had indoor baths. the public baths came into disuse. for childbirth, only rich women were attended by physicians. most physicians used talismen such as the eagle stone at deliveries. caesarian section almost always led to the death of the mother. midwives were licensed by the church and could baptize babies. jane sharp wrote "the midwives book" with anatomical illustrations. women over thirty had fewer children and the last child born was at an earlier age than before. this was in part due to birth control such as coitus-interruptus, long breast-feeding of a current child and/or the taboo against sex if the wife was still breast-feeding. rich women often employed wet-nurses to breast- feed their babies. babies seldom thrived, or even survived, without out a regular supply of breast milk. john locke, an oxford don, physician, and son of an attorney, expressed a view that the monarchy was not based on divine right, but rather on a contractual relationship with the people, who were reasonable, free, and equal by nature. this idea was first adopted by revolutionists and then became accepted as orthodoxy. also, he articulated the right of resistance, the supremacy of legislative assemblies, and the responsibility of rulers to answer to their subjects. he theorized that men turn to forming a civil government when there is a need to protect accumulated property from some unreasonable men. this, along with the protection of life and liberty, was the primary function of government, before royal pleasure, national pride, or foreign conquest. he wrote theories on the interaction of supply, demand, interest rates, rents, coinage, and foreign exchange rates. he believed that interest rates should be the natural ones determined by market forces rather than by the legislature, especially if there was an attempt to lower interest rates below their natural rate, which was not only undesirable but easily circumvented. he thought that attempting to legislate contrary to natural economic laws, e.g. prices, was doomed to failure from unexpected consequences. he agreed with most mercantilists that by maintaining a large inflow of precious metals through consistent export of surpluses in foreign trade would lead to low interest rates, increased trade, increased capital stock, high employment, and high prices, and therefore a healthy economy and enrichment of the nation. 	locke thought that knowledge comes primarily from experience, i.e. sensation and reflection, rather than from innate ideas placed in the mind by god, so that observation and experimentation are necessary to find truth. he theorized that propositions of truth have probability rather than certainty. probable propositions included opinion, belief, and revelation. his "thoughts on education" was a great book on the formation of character. locke also advocated the use of a large field for inventing labor-saving and economic devices for agriculture. he espoused freedom of thought in "letters on toleration" and wrote "an essay concerning human understanding", which described how the mind functions in learning about the world and which attempted to reconcile science and christianity. he was a great admirer and friend of newton and they shared religious views. he was also a member of the royal society. 	at oxford and cambridge universities, there were the most enlightened theologians, classicists, orientalists, philologists, mathematicians, chemists, architects, and musicians. there were professors of anglo-saxon, hebrew, and arabic. john locke's influence caused modern philosophy to supercede traditional scholasticism. there were no more disputations to qualify for degrees. some of the students were the sons of noblemen and sat at meals with the heads, tutors, and fellows of the colleges. most students were the sons of landowners, clergymen, professional men, or prosperous men of business. they were known as the gentlemen commoner students. the few poor students were known as servitors and paid for their education by menial work. corporal punishment ceased. instead there were fines, suspension, and expulsion. fellows of colleges had common rooms for drinking and smoking together as they had done in taverns outside college walls. the king had authority to grant licenses in sell or give land in perpetuity, to encourage founding and augmenting colleges and schools. the two universities were vested with the presentation of benefices that had belonged to papists. 	english nonconformists such as presbyterians were excluded from oxford and cambridge universities, so they were educated at glasgow in scotland. 	grammar schools were blamed for the past civil war by educating too many people above their station, so ecclesiastical control now stifled them. a few dissenting schools were established. charity was given to schools for children of the poor for placement as apprentices, but not to educate them above their stations. 	in the s, about % of males in london were literate. by , illiteracy was a special characteristic of the poor instead of a characteristic of the vast majority of common people as in . fountain pens came into use. 	many books written tended to be about the author's experiences, for instance samuel pepys' "diary", gilbert burnet's "history of my own times", john evelyn's lifelong diary with vivid descriptions of striking events of the day, and nonconformist celia fiennes' description of her tour of england on horseback. there were many political biographies. historians did not yet study history as a continuous process, but narrated self-contained stories to instruct by example. william fleetwood wrote about economic history in "chronicon preciogum". george hicks put together a "thesaurus" of the northern languages. thomas hyde wrote on ancient persian religion. john spenser compared jewish rites with those of other semitic people, thus starting comparative religion. richard bentley, william's librarian, wrote a "dissertation" on the ancient greeks. he compared the ancient greek life with modern life. he also confuted atheism on the newtonian system. a translated version of "critical history of old testament" by frenchman richard simon identified the old testament as history instead of divine revelation. john milton wrote "paradise lost", which retells the biblical story of the creation and the fall of adam and eve against the backdrop of satan's rebellion and expulsion from heaven and emphasized god's justice in spite of everything. the poem deals with the puritan struggling against evil and the problem of sin and redemption. it has a cold and severe conception of moral virtue and stoical self-repression in its characters. there is no sympathy with the human condition. reading this book made the english more serious, earnest, and sober in life and conduct and more firm in the love of freedom. john bunyan wrote "pilgrim's progress" in which a tinker takes a journey to find the everlasting city of heaven and on the way meets people who try to harm him. but he derives strength from his adversities. the journey is a metaphor for the christian soul trying to find salvation. it is puritan in its sympathies and has insights into human nature. john dryden wrote on large social, political, and humanistic issues, often by political satire. william congreve wrote plays such as a comedy on manners. william wycherley wrote cynical satires and portrayed folly, affection, and vice. john vanbrugh wrote plays satirizing london high society and social institutions. john toland wrote "christianity and mysterious" on deism. "puss in boots", "red ridinghood", and "cinderella" became available in print. there were many female poets, bookwriters, and playwrights. anne finch, later vicountess conway, wrote the philosophical book: "principle of the most ancient and modern philosophy" to reconcile the new science with christian belief. in it every creature had a body and a spirit. mrs. aphra behn wrote "oroonoko", one of the first novels. basua makin, governess of the little sister of charles ii wrote an essay to revive the education of women, arguing that women's activity in wartime showed that they were fit to be educated. elizabeth elstob, who studied teutonic languages, was one of the founders of women's education. mary astell proposed a college for women. some women painted portraits. 	there were rigid censorship acts from to . the first required that no one could print a book without first registering it with the company of stationers of london and having it licensed by appropriate authority: common law books by the lord chancellor or the lord keeper of the great seal, affairs of state and history books by the secretaries of state, heraldry books by the earl marshall or kings of arms garter, university books by the chancellor or vice chancellor of either of the universities, and all others including divinity, physics, and philosophy by the archbishop of canterbury, or bishop of london. books could be imported only into london and not sold until approved by the archbishop of canterbury or bishop of london after being opened and viewed by a scholar appointed by these bishops and a representative of the company of stationers. if heretical, seditious, scandalous, schismatic or otherwise dangerous or offensive, the importer could be punished. no one could print or import copies of any books without consent of the owner with right by letters patent. the penalty for not doing so was to forfeit s. d. for each such book, of which the king would receive one half and the owner one half. printers had to set their own name to the books they printed and also the name of the author or else forfeit such book. only freemen of london who were members of the company of stationers could sell books. the company of stationers had the authority accompanied by a constable to search all houses and shops where they knew or had "probable reason" to suspect books were being printed. they could search houses of persons of other trades only by special warrant. they could examine books found to determine if they were licensed and, if not, to seize them. justices could imprison offenders. the first offense by offending printers was to be punished by suspension from printing for three years, the second offense by permanent disallowance from printing, fine, imprisonment, and corporal punishment not extending to life or limb. this statute was enforced by frequent prosecutions, such as of publishers of pornographic books. 	the only newspapers to appear between and were official government sheets. but in the requirement to license publications, including newspapers, was abolished, thereby giving some freedom to the press. locke had argued for this freedom, stating "i know not why a man should not have liberty to print whatever he would speak and to be answerable for the one just as he is for the other..." in the first daily newspaper in the world came into existence in england. the stationer's company monopoly of printing also ended in . printing was not regulated and no longer criminal just because it was unauthorized. printing could now be done in other places than london, york, oxford, and cambridge. 	the rich got richer and the poor got poorer. many successful merchants and manufacturers bought landed estates and established a line of country squires or baronets or even peers. the fashion started in the nobility and the richest mercantile families that their wives should become ladies of leisure. for workers though, there was constant underemployment. in periods of economic crisis industrial workers lost their jobs. much work was seasonal. anyone who could work most of the time was fortunate. laboring and out- servants, who comprised one fourth of the population, and cottagers and paupers, who comprised another fourth of the population, had to spend more than they earned. the poor rate collected from the parishes for the cottagers and paupers was d. per week. there was an agricultural depression that was deepest in the s after the collapse of a boom. it was the only bad depression experienced in peace time. there was famine in . 	any person receiving relief from any parish and his family members cohabiting with him was required to wear a badge with a "p" which identified his parish. this was to differentiate them from idle, sturdy, and disorderly beggars who were not entitled to relief. 	there were more poor people and, despite the poor laws, many became rogues or vagabonds or starved to death. many went from parish to parish to build cottages and consumed all the wood there and then went to another parish. so the parishes were allowed by statute to remove any person coming to settle in any tenement under the value of ten pounds who was likely to be chargeable to it. they were then removed to the last parish were they had resided for at least forty days. excepted were people temporarily moving to another parish to work at harvest time. the overall effect was to decrease the mobility of people. but a later statute permitted greater movement of poor people by allowing those who were poor for want of work to go to another parish where labor was wanted. they had to bring a certificate of their present parish membership to the new parish, where they could settle if they rented a tenement worth ten pounds a year or served in a parish office. later, settlement had to be given to inhabitants paying its parish's rates, and unmarried inhabitants hired for one year, and apprentices bound by indenture. but parishes were displeased with the requirement to give settlements to these people because they feared they would become poor and need parish assistance, thereby increasing the rates to be paid. 	parish poor houses were converted into spinning schools to obtain an income. parishes of large towns were combined to set up large workhouses, where the poor could be set to unskilled manufacture, but the managers lacked the character and education to make them work. 	because prisoners often died before trial and the poor prisoners became instructed in the practice of thievery in prison, they were set to work on materials provided to them at public expense. no parish was rated at more than d. per week for such. the president and governors of corporations oversaw rogues, vagrants, sturdy beggars, and idle or disorderly persons working in corporations or workhouses. 	assessments were made for building and repairing gaols in order to maintain the health and safe custody of the prisoners. also, gaol fever, a virulent form of typhus, was so prevalent in the large prisons for criminals and debtors that it frequently spread through the adjacent towns. during some assizes, it killed sheriffs, lawyers, and justices. 	in , london lands were taxed for the relief of orphans. churchwardens could seize the goods and chattels of putative fathers and mothers deserting bastard children. 	from to , societies for the reformation of manners prosecuted poor people for moral offenses. 	all hackney coaches and stage coaches in all the realm became required to be licensed. the turnpike system came into use. tolls were paid for road upkeep and repair by private companies. the local parishes ceased to have this responsibility. john ogilby wrote the first road book based on actual surveys of the roads. stage coaches cost a shilling for every five miles and went - miles a day. the trip from london to oxford was twelve hours. the company of coach and coach harness makers was founded with the consent of the king. the body of a coach hung from the frame by leather braces. one axle pivoted for turns. plate glass was used in the windows. rivers improved so that most places were no more distant from navigable waters than a long day's haul on land. 	the several post offices were put under the authority of one postmaster general appointed by the king for the purpose of speed and safety of dispatches, which were carried by horseback. one sheet letter going less than miles cost d., and more than miles, d. 	when the army was disbanded after the restoration, its officers and soldiers were allowed return to their trades and their apprenticeships without serving the usual seven years. parishes were required to provide for poor and maimed officers and soldiers who served charles i or charles ii. the royal hospital founded by charles as a home for veteran soldiers opened in . greenwich palace was converted to a hospital for seamen and their widows and children to encourage men to become seamen: mariner, seaman, waterman, fisherman, lighterman, bargeman, keelman, or seafaring man in the king's navy. also, children of disabled seamen were to be educated at the expense of the hospital. 	charles retained one regiment from which he started a small standing army, which slowly increased in size ever after. the army was primarily mercenary, as it had been in medieval times, with officers buying their commissions. colonels were the proprietors of their regiments and captains were the proprietors of their companies. the soldiers were ill mannered, swearing and cursing and stealing, sometimes from peoples' homes, and intimidating people with their swords. the bayonet was invented to attach onto a gun, which were muzzle-loading with a match lock. so pikemen with their long spears became obsolete. hand grenades and small explosive bombs came into use about . 	explosives were also used in mines. mines for coal became deeper as coal replaced the use of increasingly expensive wood charcoal for brewing and for brick, glass, and china manufacture. flooding of coal, tin and copper mines became a problem. in , thomas savery invented the miner's friend, a practical atmospheric steam engine without a piston. 	there was resort to many devices to fund wars. the land tax was still the primary tax. the customs and excise taxes were often extended to more goods and wares. sometimes there were duties imposed on marriages, births, and deaths. also, hawkers, peddlers, and other trading persons going from town to town to other men's houses on foot or on horse carrying wares had to buy a license. there were also loans from privileged companies such as the bank of england, east india co., and the south sea co. commissioners were appointed to take and state the account of all money in the public revenue. this discouraged the prevalent corruption of government officials and thereby the people were encouraged to pay their taxes. 	the goldsmiths loaned money to the king and to private persons and to the exchequer. receipts from goldsmiths for storage in strong boxes had become a de facto paper currency. but when the goldsmiths had no more money to lend, the bank of england was founded in under whig auspices to provide money for war. it was the first institution to issue notes in excess of its total deposits. however, it was not allowed to lend money to the crown without the consent of parliament. it was incorporated as the first english joint-stock bank and had about , shareholders. these original subscribers were individuals from london from many walks of life, including well-to-do tradesmen and about % of whom were women: wives, widows, or spinsters. not many corporations were original subscribers. holders of at least pounds could vote, of pounds could be directors, and of pounds could be governor. the bank issued notes payable to bearer and discounted bills, but these were not legal tender. it lent at % to the crown and occasionally to corporations. money was also borrowed by offering annuities on single lives. this was the first time the government borrowed directly from the public on a long- term basis. 	in there was inflation due to over issue by the bank because of inexperience, pressure from government, and the bank's greed for business. after a dividend of % in , the next year there was no dividend and so the bank stock price fell. in , five pound and ten pound short term bonds were sold to the public. also in that year was the first run on the bank. this occurred two days after clipped money lost currency; people wanted the new recoined money, but the mint had not supplied the bank with sufficient supplies. interest instead of cash was given for notes. cash was short for months. the bank's credit was much shaken. it was then given a monopoly so that its notes would not have competition. thereafter, its dividends were good - about % per year. because of its monopoly, its dividends were about % above the current going rate of interest. about this time, exchequer bills, with interest, were started by the exchequer and circulated by the bank of england. they were frequently endorsed many times by successive holders. 	the bank simply took over from the goldsmiths its main everyday business of deposit, with a running cash note [cashier's note, specie note, cash note], which was payable on demand and normally did not bear interest; and a drawn note [precursor to the check, but not on special paper]. the bank gradually convinced many of its clients to use its "check" [cheque] paper when drawing. the check paper was unique to the bank and embellished with distinctive scroll work to serve as an obstacle to fraud. over time the running cash note tended to be for round sums of at least twenty pounds and multiples of five pounds. the bank of england had a monopoly on issuing notes in the london area. country banks arose and issued bearer notes payable on demand and interest-bearing notes in their areas. the bank of england gave to its depositors the service of paying annually to a designee without further order. 	a decision of the common law courts held that bills of exchange (written orders to pay a given a sum on a given date) were transferable to other people by successive endorsements. so long distance payments no longer had to be made in coin, with all the dangers of highway robbery. 	the financial revolution of the s meant that the merchant elite could invest in government bonds or company bonds at - %, or london leases at %, as opposed to income from landed estates, which was under %. shareholders were no longer personally liable for company losses. interest on loans was no longer considered sinful as long as it was not oppressive. the greater ability to borrow spurred the growth of capitalism. 	all brokers and stock jobbers in london and westminster of bank stock, bank bills, shares and interests in joint stock must be licensed by the mayor, which shall necessitate their taking an oath to exercise their office without fraud or collusion to the best of his skill and knowledge as of . this is to avoid the collusion of fixing values to their own advantage. 	compilations of tables of mortality originated the science of life-statistics. this made life insurance possible. but it was administered by ad hoc offices rather than companies and was not reliable in making payments. 	william petty made a statistical study of economics and determined that the basic values of an economy derive not from its store of treasure, but from its capacity for production. trade was studied empirically by statistics by new offices such as the inspector general of imports and exports. 	charles instituted a hearth tax of s. per year in , with constables and officers authorized to verify the number of hearths and stoves in houses. it was repealed in because it could not be enforced except by exposing every man's house to be entered and searched at pleasure by persons unknown to the people, which was oppressive and a badge of slavery. 	by bribes, charles built up a body of support in parliament which could be relied upon for a majority. they came to be called "tories" by their opponents. "tory" had been a term of abuse for irish catholic bandits. the tory and whig groups were known by their disagreement over the authoritarianism of the crown. the tories were sympathetic to the doctrine of divine right and favored a doctrinally high church. the tories represented landed property and the established church, and usually wore blue in contrast to the purple of royalty. many royalists became tories. the whigs refused to accept the sacrosanct character of the monarchy. the whigs opined that government depended upon consent of the people and that the people had a right of resistance. they subordinated the crown to parliament. the whigs represented the dissenters and the mercantile classes, and often wore red. many former puritans became whigs. "whig" had been a term of abuse for scots presbyterian rebels and horse thieves. 	the gout and venereal disease were common among political leaders. a primitive condom just introduced to the aristocracy from france helped deter syphilis, but was uncomfortable and unreliable. 	under charles ii, the treasury as a supreme financial body separated from the exchequer as a depository of revenue. a gold guinea coin was issued. from , government policy was controlled by specific appropriations. money bills had to originate in the commons, and could not be amended by the house of lords. 	boards became independent of the king's privy council and answerable to the secretary of state. 	in the s, charles compelled some of the livery companies in london to give up their charters to him and he called in many corporation charters of boroughs whenever some light excuse could be found to justify it. this was done by the use of the writ of quo warranto [by what authority] before a court. in london he had the tory mayor revive an ancient custom of selecting a sheriff by drinking to him at the annual feast. two tory sheriffs were installed into office. all these actions gave the king a voice in selection of the officers of london and boroughs, since royal commissioners would then determine who the officers would be. this was to assure london's representation in parliament by crown loyalists as london had been whig. it also allowed influenced selection of sympathetic jurors. 	criminal seditious libel was brought into the common law courts in , when benjamin keach was tried for writing a book containing contradictions of the doctrine of the established church. he wrote against infant baptism and asserted that laymen might preach the gospel. the justice intimidated the jury to find him guilty. he was sentenced to be fined, to spend two hours in the pillory in two successive weeks, and his book to be burned before his face. he was to be imprisoned until he found sureties for his good behavior and renunciation of his doctrine and for his future appearance in court. juries were loath to find anyone guilty of seditious libel. 	james ii succeeded charles ii to the throne and fostered roman catholicism by appointments and by attempting to suspend laws unfavorable to catholics. he commanded all bishops to read in the churches his declaration of indulgence exempting both catholic and protestant dissenters from all penal statutes based on religion. seven bishops refused to obey and jointly petitioned him, stating that his action was illegal according to parliament. he prosecuted them for seditious libel in the petition. the jury found them not guilty. james discharged the two justices of the five who had rejected the seditious libel doctrine which had been created by the star chamber court. this roused the whigs and tories in turn to discharge him by joining in inviting protestants william of orange and mary to take the throne in his place. james was effectively chased out of england by william's advancing army in the glorious revolution of - , which took away the powers of final authority from the king, but without transferring them to any other body. a "bill of rights" stated that . the king may not suspend laws or dispense with them without consent of parliament. . the establishment of a court of commissioners and like bodies for ecclesiastical causes is illegal. . the king may not levy money or extend an authorized levy without consent of parliament. . subjects have a right to petition the king without prosecution. . the king may not raise or keep a standing army within the country in time of peace without the consent of parliament. . protestants may have arms for their defense as allowed by law. . the elections of members of parliament should be free. . the freedom of speech or debates or proceedings in parliament should not be impeached or questioned in any court or place outside of parliament. . excessive bail should not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted (so no more men were whipped to death). . jury selection should not be tampered with, and jurors who try men for high treason should be freeholders. . all grants and promises of fines and forfeiture of particular persons, before conviction, are illegal and void. . parliament should be held frequently for redress of grievances and for the amending, strengthening, and preserving of the laws. . all protestants may freely exercise their religion and the king will maintain the protestant religion and the law and liberty of the realm. 	the right of the peoples' representatives to select and depose the king and to change the order of succession was established. there was no divine right or hereditary right to the crown. an english monarch was created by an act of parliament. the king still called and dissolved parliaments, except that parliament continued for six months after the death of a king. from , parliament sat every year. freedom of speech for members of parliament was established by a resolution overturning a king's bench felony conviction of sir john elliot. 	by the act of settlement of , no officer or pensioner of the king could be a member of parliament. all resolutions by the privy council had to be signed by the members consenting to them. no one born outside the realm could be a member of the privy council or of parliament, or could have any civil or military office or place of trust, or any grants of land or tenements from the king. justices served during good behavior instead of at the pleasure of the king. 	after the glorious revolution, tories tended to accept of the whig principles of limited constitutional monarchy instead of rule by divine right. 	under william and mary, the ministers were first chosen by them but could be impeached by the commons and then removed by the parliament. the commons removed anyone who disagreed with them as soon as he made a mistake. but the king could pardon anyone convicted by parliamentary bill of attainder. this was inconsistent, so no one was allowed to plead pardon by the king in an impeachment by the commons. thus parliament gained control of who would be ministers. 	the glorious revolution favored the capitalists and the commercial magnates even though it had been started by the landed families, with whom they now intermarried. there were companies in the fishing, silk, baize [a coarse wool], sugar, rope, paper, iron, hardware, cutlery, gunpowder, saw milling, and pottery trades. these industries for manufacturing were organized on capitalist lines rather than being subject to guilds. that is, production was controlled by men with money and the means of manufacture. the largest pottery workshops employed about six men. one man shaped the pots, another made the handles and put them on, while the others did the decoration, the glazing, and the firing. new companies could be formed without royal or parliamentary consent. regulated companies declined. there were no more commercial monopolies. the merchant adventurers lost their last monopoly privileges and their entrance fees were abolished. their method of limiting the volume of their exports of english cloth to germany to keep up prices was obsolete. now they tried to capture the market by selling cheap. there were more joint-stock companies and on a larger scale. they also no longer restricted output to keep prices high, but geared to export many inexpensive goods. 	drinking of gin, which had first been made by a flemish physician, became popular under king william, who was dutch. the year of his accession, the gin monopoly ended. 	from the mid- s to , coal production increased fourteen times. sir ambrose crowley, an iron maker with coal works, established disability and medical benefits and pensions for his workers. 	the capitalist organization of the mining, glass manufacture, salt, soap, wire and other monopolized industries was made possible only by government support. salt and glass manufacture expanded. glass drinking vessels were in common use. mirrors of blown plate glass were manufactured in england. in , vauxhall glass works were opened with workmen brought from venice to blow their fine glass and make mirrors. some plate glass by casting was imported. plate glass was a large and strong glass piece, which was formed by the liquid glass being poured on a table. this glass was not distorted, so mirrors could be made perfectly reflective. then plate glass for coaches, mirrors, and windows became manufactured in england; this new industry was organized on capitalist lines. 	the domestic or "putting out" system came into use. in this system, the worker usually owned his own machinery and the capitalist owned the material, which he put out to the worker at home. the merchant manufacturer bought raw wool and had it carded, spun, woven, fulled, and dressed at his own expense. some farmers became spinners in the winter when outside work was impossible. the manufacture of nails was also done by this system. accordingly, the guilds and municipal corporations in towns ceased to control the recruiting, conditions of work, and pay of industries. only a quarter of towns had any organized guilds at all. the growing town of birmingham was not a chartered borough, so never was encumbered with guild regulations. overall, the guild and apprentice regulations were effectively enforced only in agriculture work. artisans became known as tradesmen. work was usually irregular, some seasonal. in bad years, when a worker had to borrow money, he used work tools, such as his loom, as security. in this way, one's work tools often became the property of a merchant. some merchant clothiers also owned a fulling mill and a shop where the cloth was sold. the capitalists first became owners of the materials, then of the implements, and then of the work places. but production was still confined to the known wants of its habitual market. men used to working at home were generally not inclined to go to work in a factory. so there was an assortment of unskilled factory labor, such as country people driven from their villages by the growth of large estates, disbanded soldiers, and paupers. they had to be taught, trained, and above all disciplined. 	smiths used trip hammers powered by watermills which turned axles with cams on them. they made iron gates, fences, balconies, and staircases with hammer, anvil, and chisel. cast iron was made by running liquefied metal into molds. this was harder but more brittle than the tough but malleable wrought iron. tinkers went from house to house to repair metal items such as pots and pans. 	the east india company had about half the trade of the nation. its shares were frequently bought and sold. it responded to anger over its semi-monopoly status by granting liberty to all english subjects below the age of forty to live in its indian settlements and to trade practically everywhere. bombay, india became subject to the east india company. charters gave the east india company the right to coin money, to exercise jurisdiction over english subjects, to levy taxes, to build and command fortresses, to command english and indian troops, to make peace and war, and to enter into alliances with indian rulers. the company always paid high dividends and the market price of its shares generally rose. pound stock was worth pounds in , pounds in , pounds in , and even up to pounds in , and then fell to pounds in . in a new charter for the company included loss of monopoly status by resolution of the commons. with this resolution, parliament assumed the right of regulating commerce, now no longer the king's province. thereafter the commons regulated trade with india and determined who could participate in trade there. political issues developed, which initiated corruption at elections by entertainment and bribes to candidates, which were later proscribed. the trade opened up to many more traders and investors. ordinary investors came to include women and quakers. the stock exchange was incorporated about . 	exports included grain, silk, metal wares, foodstuffs, lead, and tin. cloth and manufactures were exported to america. dyeing and dressing of cloth became the norm and undressed cloth exports fell sharply. imports included linen; flax; hemp; timber; iron; raw, thrown, and woven silk; wine; brandy; fruit; coffee; chocolate, served as a drink or used in cooking; cauliflower; and oil. from america came molasses, sugar, tobacco, and dyes. sugar was in great demand for tea, coffee, and chocolate. the east india company imported calico, silk, pepper, spices, china tea, potions, and saltpeter. tonnage of english shipping doubled by exports and imports increased % by . 	when there was a surplus of grain, it was exported. about , the king set up a board of trade of eight paid members and great officers of state, who nominally belonged to it, and a staff. this was to achieve a favorable balance of trade. for instance, it imposed tariffs to protect internal markets and put restraints on imports of goods producible in the country, e.g. live cattle, dairy products, and woolen goods. it also restricted the export of raw wool. england led the way in protectionist measures. 	parliament required an oath of allegiance to the new sovereigns william and mary from all those in public functions, including the clergy. by extending this rule to the clergy, parliament asserted a supremacy of parliament over the church. it also asserted a supremacy over the king by requiring all monarchs to take a coronation oath promising to govern according to the statutes, laws, and customs of parliament, to make judgments with law and justice in mercy, and to maintain the protestant religion established by law. 	england competed with other nations for land in the new world. carolina, named for charles ii, was colonized for commerce in . the episcopal church, an analogue of the church of england, was established there by law. the whole coast became english after war with the netherlands gave new york, named for charles ii's brother the duke of york, and new jersey to england in . presbyterians and baptists fled from religious tests and persecutions in england to colonize new jersey. for free passage to the english colonies, people became indentured servants, agreeing to serve the master of the ship or his assigns with a certain kind of labor for a term of a few years according to a written contract made before departure. also, various statutes made transportation to any part of america available to any person who would pay for his transportation, for a term of years, usually seven, as a new possible penalty for offenses. in , harvard college was founded in new england to advance literature, arts, and sciences, as well as to train ministers. some american colonists sent their sons to be educated at the inns of court in london. 	in , quaker william penn, son of an admiral, founded the colony of pennsylvania for quakers in a "holy experiment" in political and religious freedom. the king had granted proprietary rights to this land to him to discharge a crown debt to his father. when penn refused to take off his hat before king charles and asked why charles took off his own, charles, unruffled, replied that "it's the custom of this place that only one man should remain uncovered at a time". the pennsylvania charter of went beyond magna carta and england's law in guaranteeing right to counsel and giving a right to defendants to summon witnesses in all criminal cases. it gave penn absolute authority and he established liberty of conscience, i.e.freedom of religion, and freedom from arbitrary arrest. in , some quakers founded a small hospital in pennsylvania as an asylum for the insane, where they would be treated humanely. 	proprietary colonies, in which an individual or syndicate held under the crown a sort of feudal overlordship, were founded in america: namely, virginia, maryland, carolina, new york and new jersey in , and pennsylvania and delaware in . new hampshire was made a royal province in to cut off the expansion of massachusetts, which had been avoiding the trade laws. these colonies were distinguished from the corporate colonies of massachusetts, plymouth, connecticut, and rhode island, which made their own arrangements for internal government without a royal executive. charles persuaded the chancery court to declare the charter of massachusetts void; it was given a new charter in which made it a royal province. new york was made a royal province in . maryland's proprietor gave way to a royal governor in . soon all colonies except rhode island, connecticut, pennsylvania were royal provinces, with governors nominated by the crown. this bringing of union to the colonies was done for maintenance of order, to coordinate defense, and to enforce trade laws. 	in , the hudson's bay company was incorporated to engage in fur trade with indian trappers in the hudson bay and to find a northwest passage to china. 	in the founding of the "society for the propagation of the gospel in foreign parts" by the church of england created many missionaries in the colonies, where they called their churches "episcopalian". 	increase mather and his son cotton mather were puritan ministers in colonial boston. increase was for a time the president of harvard college and participated in obtaining the new charter of colonial massachusetts of . he and his son tried to maintain the principles of the puritan founders of massachusetts, which included the theories of diabolical possession and witchcraft. but the thought of presbyterians, anglicans, and baptists became influential also. in in the small town of salem, massachusetts, some hysterical girls showing strange spasms and sounds charged they had been bewitched by certain other residents. victims were deceived, flogged, or tortured into forced confessions and then excommunicated from the church. they were then hanged and their property confiscated. one man endured being pressed to death for refusal to plead so that his property would be inherited by his family rather than confiscated due to being convicted. eventually, some prominent citizens including judges were accused. then the more thoughtful people began to doubt the whole phenomenon and admitted error. the excommunications were revoked. cotton mather came to accept newton's science and advocated inoculation. he encouraged puritanism into a simpler piety and charity. this influenced american protestantism toward a generalized concern with good works, morality, and social leadership. - the law - 	treason to the king is to compass, imagine, or intend death or any bodily harm tending to death, or maiming or wounding, or imprisonment, or restraint as well as trying to depose him or levy war against him. also included is printing, writing, preaching, or malicious speaking. traitors shall suffer death and forfeiture as in high treason. 	the fine for having, buying, or selling clipped coins is pounds, one-half going to the informer, and one-half going to the king. the offender shall also be branded in the right cheek with the letter "r". he shall be imprisoned until he pays the pounds. no hammered coins are lawful. anyone except a smith in the king's mint making tools or presses or other machines that can make counterfeit coins or having such which were stolen from the mint shall be guilty of high treason. 	any malicious and willful burning or destroying of stacks of hay, grain, or barns, or killing any horses, sheep, or cattle at nighttime shall be felony and punished by transportation to the american colonies for seven years. 	any person apprehending a thief or robber on the highway will be rewarded pounds from the local sheriff, to discourage the many robberies and murders which have made travel dangerous. also, executors of persons murdered while trying to apprehend a robber shall have the reward. 	anyone killing, hurting, or taking away deer from any forest or park or other ground without consent of the owner or custodian shall pay a pound fine. this was later increased to pounds for hunting deer and pounds for wounding or killing deer, with the pillory for one hour on market day and gaol for a year without bail for those who couldn't pay. 	any person privately and feloniously stealing any goods, including horses, by day or night, in any shop, warehouse, coach stable, or stable, whether there is a break-in or not, and whether or not the owner is present, or anyone assisting or hiring such person may not have benefit of clergy. any person who apprehends and prosecutes such person is excused from having to serve in parish and ward offices. an offender being out of prison who informs against two other offenders who are convicted is to be pardoned. any person convicted of theft or larceny and having benefit of clergy is to be burnt in the cheek nearest the nose instead of on the hand. 	when a bill of exchange drawn to at least five pounds is not paid on demand at the time it is made payable, the person who accepted it may make a protest in writing before a notary public, which shall be served on the maker of such bill, who must pay it and all interest and charges from the date of the protest. but if a bill of exchange is lost or miscarried, another shall be given in its place. 	no one may take more than pounds in interest for a pound loan. 	persons seeking election to parliament may not give or promise money, meat, drink, entertainment, present or gift to any elector. 	because the gaols were full of people in debt due to the late unhappy times such as the london fire, all prisoners for debt were released upon taking an oath that they had no property over ten pounds nor had disposed or conveyed property to defraud creditors. creditors not wanting them released had to contribute to their maintenance in gaol. 	any sale of land or lease or estate of freehold or copyhold shall be in writing and signed. an interest in land given orally shall have only the force of estates at will. all contracts for sale of goods or merchandise for the price of at least pounds shall be in writing and signed by the parties or shall be accompanied by part payment or partial acceptance of the goods. this is to deter fraud. this statute caused many small freeholders, including yeomen, who paid rent by custom to be dispossessed. 	mortgagees can hold the land of any mortgagor who borrows money upon security of the land or obtains another mortgage without prior notice to the initial mortgagee. the mortgagor has six months to pay off the mortgage and all interest and charges or vacate the land and lose his equity therein. but a widow's dower will not be affected if she did not join with her husband in the mortgage. 	if rent is not paid in a reasonable time, the renter's goods and grain may not only be distrained, but sold. 	one coparcener of a joint tenancy or tenancy in common may have a court partition the property without the presence of other coparceners, because such coparceners are often difficult to find. this is to avoid wasting of land lying uncultivated and unmanured. 	after the intestate death of a father of any sons or daughters without wives or children of their own in the life time of their mothers, the mother and every brother and sister shall share equally except the customs of london and york shall not be affected. administrators have to make an inventory. they have to account on request by an interested person. they must be bonded by two sureties. 	executors and administrators of estates of deceased persons must pay the debts of the deceased person rather than waste or convert the goods and chattels to their own use. creditors may recover their debts from heirs or devisees of the will of a debtor. 	men gone beyond the sea who could not be accounted for were deemed dead after seven years, so their life estates could be terminated. 	whereas lawful games are not to be used as constant callings for a livelihood, and young people are deceived and debauched and their money taken, anyone "winning" money by deceitful or fraudulent gambling shall forfeit three times his "winnings". 	the making or selling of fireworks is forbidden or else forfeit pounds. firing or throwing such from one's house onto or across the street is a common nuisance with a penalty of s. this is to avoid the loss of life and of eyes. 	no more than people may petition the king nor more than people may assemble to present a petition to the king, because more has been tumultuous and disorderly. 	anyone may without fee set up a hemp business including breaking, hatchelling [separating the coarse part and broken pieces of the stalk from the fine, fibrous parts by drawing the material through long iron teeth set in a board], and dressing it; or a flax business, including making and whitening thread, spinning, weaving, making, whitening, or bleaching hemp or flax cloth; making twine or nets for fishing or treating cordage for tapestry or hangings, because the daily importation of such has in effect taken the work from the poor and unemployed of england. 	no sheep, wool, woolfells, shearlings, yarn, fuller's earth, or fulling clay may be exported as has secretly been done, so that the poor of the realm may have work. 	fishermen may sell their fish to others than fishmongers at billingsgate fish market because the fishmongers have forestalled the market and set their own prices. the buyers of such fish may resell them in any other london market by retail, except than only fishmongers may sell in shops or houses. 	no tanned or untanned skin or hide of any ox, steer, bull, cow, or calf may be exported because the price of leather has risen excessively and leather workers can't get enough raw material to carry on their trade and because poor people cannot afford leather items they need. 	the newly incorporated company of silk throwers (drew the silk off the cocoon) employs many of the poor, but others practice the trade, so an apprenticeship of seven years is required to practice the trade in the realm. winders or doublers who purloin or embezzle and sell silk from the thrower who employs him and the buyer of such silk shall make such recompense as ordered by a justice of the peace or be whipped or set in the stocks for the first offense. 	the regulation of the silk throwers company restricting the number of spindles to be worked at one time is voided because it has taken livelihoods away and caused foreign thrown silk [silk twisted from cocoons into thread] to be imported. 	buttons on garments must be made of silk, mohair, gimp, and thread and by needle to keep employed the many throwers, twisters, spinners, winders, and dyers preparing the materials for these buttons. no button may be made of cloth or wood. 	when a bill of exchange drawn to at least five pounds is not paid on demand at the time it is made payable, the person who accepted it may make a protest in writing before a notary public, which shall be served on the maker of such bill, who must pay it and all interest and charges from the date of the protest. but if a bill of exchange is lost or miscarried, another shall be given in its place. 	no one may take more than pounds in interest for a pound loan. 	persons seeking election to parliament may not give or promise money, meat, drink, entertainment, present or gift to any elector. 	because the gaols were full of people in debt due to the late unhappy times such as the london fire, all prisoners for debt were released upon taking an oath that they had no property over ten pounds nor had disposed or conveyed property to defraud creditors. creditors not wanting them released had to contribute to their maintenance in gaol. 	retailers of wine may not add to imported wines cider, honey, sugar, molasses, lime, raisin juice, or herbs. 	butter sold must be of one sort and not contain bad butter mixed in with good butter. butter pots must bear the name or mark of their potter. 	salt may be sold only by weight, to avoid deceit by retailers and wrong to buyers. 	no tobacco maybe grown in england because the colonies would be discouraged from growing it and the king would not receive customs from it. 	no goods are to be imported to or exported from america, asia, or africa except in english ships, with masters and / of the mariners englishmen. no manufacture of europe may be imported into any colony or territory except shipped from england in english ships manned by englishmen. as of , if bond is not given for colonial exports of sugar, ginger, tobacco, cotton, indigo, cacao nuts, or fustic [tree that yields a yellow dye] and other dye- woods going to england, a duty must be paid. as of , no colonial goods are to be imported or exported or carried from one colony to another, except in ships owned and built in england, ireland, or the colonies with the masters and three fourths of the mariners from such places. these navigation acts were strictly enforced. 	only persons with lands and tenements or estate worth over pounds per year or having a lease of at least years worth pounds per year and owners and keepers of forests or parks may have any guns, bows, greyhounds, hunting dogs such as setting dogs, snares, or other hunting equipment. these persons may kill hare, pheasants, partridges, and other game. gamekeepers authorized by justices of the peace may search houses and outhouses and seize unlawful hunting equipment. if hunting equipment or game is found in a house without good account to the justices of the peace, they shall impose a fine of s. to s., one-half going to the informer and one-half going to the poor of the parish. 	army officers or soldiers who desert or mutiny shall suffer death or such other punishment as decided by a court martial of senior officers rather than the usual form of law, which is too slow. 	seamen not showing up on board after notice shall serve six months without pay, but shall not suffer as deserters. seamen do not have to perform service in the army. 	pirates may be punished by death and loss of all lands and chattels. any person aiding, advising, or concealing pirates may be likewise punished. officers and seamen killed or wounded in the defense of a ship or who seize or destroy pirates may be paid by the owners an amount up to pounds per pounds of freight as determined by a group of disinterested merchants and the judge. the amount due to a man killed will be paid to his widow and children. this is to be done when the ship arrives in port. any person who informs of any combinations or confederacies planning to run away with or to destroy a ship shall be rewarded by the commander or master of such pounds for a ship tons or under, and pounds for a ship over tons. the trial may be in england or the american colonies, whose authorities may issue warrants for arrest of alleged pirates. deserters from ships, because they often become pirates, shall forfeit all wages. masters forcing any man fit to travel to stay on shore or willfully leaves him behind shall suffer three months in prison without bail. 	persons may mine for ores on their own land, but must turn it over to the king who will give compensation for it, including gold, silver, copper ( pounds per tun), lead ( pounds per tun), tin ( s. per tun), and iron ( s. per tun). 	by statutes of and , when goods have been carried off ships without customs being paid, the chief magistrate of the place where the offense was committed or the adjoining place, or the lord treasurer, or a baron of the exchequer may, upon oath, issue out a warrant to any person to enter, with the assistance of a sheriff, constable or other public official, any house, shop, cellar, warehouse, or room in the day time where the contraband goods are "suspected to be concealed", and in case of resistance, to break open doors, chests, trunks, or other packages and to seize such goods, provided that if the information whereupon any house is searched proves to be false, the injured party shall recover his full damages and costs against the informer by action of trespass. this was extended to the colonies in . 	the penalty for cursing or swearing by a servant, day laborer, soldier, or seaman is s. for others, it is s. the fine is doubled for the second offense, and tripled for the third offense. if an adult offender can't pay, he shall be put in the stocks for one hour. if a child offender can't pay, he shall be whipped by the constable or by a parent in the presence of the constable. 	the equity courts are now conceding limited proprietary rights to married women by enforcing premarital settlements or trust arrangements that designate certain property as a wife's separate estate and exempt it from control by the husband. such protective devices generally reflected a father's desire to shield his daughter from poverty and benefited only the landed aristocracy in practice. also, husbands are not allowed to punish and beat their wives as before. but the lower rank of men were slow to give this up. a wife could have the security of the peace against her husband. he could restrain her liberty only for gross misbehavior. 	in , the courts ruled that apprenticeships were necessary only for servants hired by the year, thus exempting most wage laborers. 	there were many variations in religious practices for statutes to address. the quakers and baptists were opposed to any state church. the independents and presbyterians accepted the idea of a state church. the members of the established church and roman catholics adhered to their version the state church as they had experienced it in the past. atheism had a bad reputation. in , the jews established the first synagogue in london. the privy council recognized their religious status as long as they were peaceful and obeyed the laws. they engaged in pawn-broking as well as money-lending. 	there were various statutes enacted over the course of time regarding religion, as follows: 	all ministers, school teachers, mayors and other town officials, including magistrates, were required to take the oaths of allegiance and supremacy [of the king over the church] or be removed from office. 	a great number of people refused to come to their parish church or other public place where common prayer and sacraments were administered and the word of god was preached according to the established church. the morning and afternoon sunday services with sermons, sometimes by guest preachers, continued. so factions and schisms developed. in response, the king changed the book of common prayer and its prayers were required by statute in to be read by some priest or deacon in all the churches and places of public worship wherever and whenever there was any preaching or lecturing. attendance at one's local parish church was never again required. 	attendance at the established church of england was never again required. nor was preaching or lecturing constrained. instead, a statute was passed in that: every person shall be pious and exercise religion publicly and privately on sunday. no work may be done or goods sold or else forfeit s. or the goods respectively. no one may travel or else forfeit - s. in a further statute of , because some ease to scrupulous consciences in the exercise of religion may be an effectual means to unite protestant subjects in interest and affection, protestant nonconformists who took the oaths, or declaration in the case of quakers, and a declaration that they were not catholic, did not adore the virgin mary or any saint, and did not go to mass were declared not liable for punishment in any ecclesiastical court by reason of their nonconformity to the church of england, except protestant dissenters meeting behind locked doors. but payment of tithes and performance of parish duties were still obligatory. non-conformist preachers had to subscribe to the tenets of belief listed in the first eighteen articles of religion, but were exempted from the articles on expounding inconsistencies in scripture, the traditions of the church, homilies, and consecration of bishops and ministers of the elizabethan statute and the statute on uniformity of prayers and sacraments of charles ii. 	as of , no nonconformist minister, i.e. one who endeavored any alteration of government either in church or state, was allowed to live or visit within five miles of any corporate town or any place where he had acted as minister or else forfeit pounds. persons not frequenting the established church were not allowed to teach in any public or private school or else forfeit pounds. 	by statute of , anyone at least sixteen years old who is present at any assembly, conventile [private meeting of religious dissidents to pray and expound scripture], or meeting under pretence of any exercise of religion in other manner than according to the established church of england at which there are at least five persons present shall be fined s. for the first offense and s. for the second offense. this does not include members of the same household meeting in their home. anyone who preaches or teaches at such a meeting shall pay pounds for the first offense, and pounds for further offenses. the householder who permits such a meeting shall pay pounds. a justice or justice of the peace or chief magistrate may break open doors and enter by force any house or other place where they have been informed of any such meeting and take persons there into custody for prosecution. this is to discourage the growing of dangerous seditious persons under pretence of tender consciences. 	religious nonconformity continued especially among the humble people. the penal statutes caused hundreds of these nonconformists to be put in gaol. from time to time, the king would release them and suspend these laws. sometimes, charles ii allowed dissenters to meet in private for worship if they got a license from him. religious gatherings grew in numbers, size, and geographical extent. dissenters were then allowed by statute to meet behind locked or barred doors. but they had to pay tithes and could be prosecuted in the ecclesiastical courts for not doing so. by statute, all congregations and assemblies for religious worship had to register with the local bishop or archbishop. disturbers of religious worship were required to find two sureties for the amount of pounds. 	quakers were active in the countryside. they were about one tenth of the population and did not believe in a state church. there were some quakers schools and some quaker workhouses to give work to the poor. for the reason that they met together in large numbers to the great endangering of public peace and safety and to the terror of the people, and because they had secret communications and separated themselves from the rest of the people and from the usual places of worship, a statute was passed in , that any quakers who assembled to the number of five or more under the pretense of unauthorized religious worship and any person maintaining that taking an oath before a magistrate was unlawful and contrary to the word of god or refusing to take a required oath was to forfeit pounds for the first offense or be imprisoned for months if he couldn't pay. for the second offense, the penalty was pounds or imprisonment for months with hard labor. the third offense required abjuring the realm or being transported to a plantation of the king beyond the seas. the policy of charles ii was to allow quakers to meet undisturbed, to keep their hats on before magistrates, and to not come to the parish church. but this policy was only partially adopted in the country. from , by statute, the quakers were allowed to affirm or declare instead of making the customary oath. 	many presbyterians became unitarians, who rejected the trinity of "father, son, and holy ghost" and doubted the divinity of jesus, but accepted revelation. this statute was then passed in : any person having been educated in or having at any time made profession of the christian religion who, by writing, printing, teaching, or advised speaking, denies the holy trinity, asserts that there is more than one god, or that the bible is not of divine authority, shall be disabled for any ecclesiastical, civil, or military office. the penalty for a second offense is being disabled from suing or pleading any action in any court, being guardian of any child, or executor or administrator of any estate, or receiving any legacy or deed of gift and imprisonment for three years without bail or mainprize. 	catholicism was always disfavored. catholic priests were executed with little evidence. at times, charles commuted the death penalty for them to banishment. sometimes there were effigies of the pope burned in the streets. such burnings were later banned. at times charles allowed catholics to attend mass. 	by statute of , all civil and military officers and king's officials must take the oaths of supremacy and allegiance and take the sacrament of the established church of england or be incapable of office. they also had to make a declaration that they believed that there is not any transubstantiation in the sacrament of the lord's supper, or in the elements of bread and wine, when they were consecrated. this is to prevent dangers from papists. as of , no one may be a member of parliament if he has refused to take the oaths of allegiance and supremacy and the declaration that they were not catholic, did not adore the virgin mary or any saint, and did not go to mass. 	papists were made to pay higher taxes. every temporal and spiritual person, corporation, and guild had to pay taxes to subsidize the king in the amount of s. d. for every pound's worth of personal property and money. but papists had to pay s. d. for such. persons and corporations having land worth at least s. yearly, had to pay s. for every pounds' worth. but papists and aliens had to pay s. for such. 	but charles' successor, king james ii was catholic and gave many offices to catholics. this prompted a reaction against papists and more statutes restricting them. after james ii was chased out of england, a statute of required suspected papists in london to make a declaration that they were not catholic, did not adore the virgin mary or any saint, did not go to mass, or else stay ten miles outside of london. excluded were tradesmen and manual workers, who had only to register. all papists had to forfeit their arms and any horse worth more than pounds. also, no king or queen or spouse of such could be a papist, but had to make the same declaration as members of parliament, and join in the communion of the established church of england. as of , a person who was serjeant at law, counsellor at law, barrister, advocate, attorney, solicitor, proctor, clerk, or notary had to take the oath of supremacy and allegiance. as of , papists who kept a school or tried to educate the young were threatened with perpetual imprisonment. also, popish parents were prohibited from forcing their children who were inclined towards protestantism to become catholic by refusing them suitable maintenance. as of , a reward of pounds was offered to any person who apprehended a popish bishop, priest, or jesuit saying mass. also, no papist was allowed to buy land. - judicial procedure - 	as of , no man could be held in prison but on a charge or conviction of crime or for debt. every prisoner on a criminal charge could demand as a right from the court of the king's bench the issue of a writ of habeas corpus which bound his gaoler to produce the prisoner and the warrant on which he was imprisoned for review as to legality. this forced trials to be speedy, which they had not hitherto been. now it was impossible for the crown to detain a person for political reasons in defiance of both parliament and the courts, as charles i had done. the writ was suspended in times of war and domestic unrest: , , . 	in , william penn was arrested for sedition for delivering a sermon in london, contrary to the statute that only the church of england could conduct meetings for worship. the jurors would not convict him, so were gaoled and fined by the justices. the jurors filed a writ of habeas corpus in the court of common pleas, which held in their favor. thereafter the english jury had full independence to decide verdicts. by court decision of , jurors were held not to be responsible to the justice for their verdict. 	after , hearsay was inadmissible as evidence, which coke had recommended. the old system of original writs was abandoned, and the general concept or a wrong to person or property took its place. 	a person who was sergeant at law, counselor at law, barrister, advocate, attorney, solicitor, proctor [supervisor of students taking an eexam], clerk, or notary in the courts had to take the required oaths of allegiance and supremacy. 	as of , persons outlawed could appear by attorney as well as in person to argue reversal of such outlawry, except in cases of treason and felony. 	as of , persons accused of high treason where there might be corruption of the blood or for misprison [concealing knowledge] of such treason had to be taken before a grand jury for indictment within three years of the offense. those indicted or outlawed for such were given a copy of the whole indictment, but not the names of witnesses, at least five days before trial in order to prepare their defense. they could have a copy of the panel of jurors at least two days before trial. they could be represented in their defense by not more than two counsel learned in the law and assigned by the court. their counsel had free access to them at all reasonable hours. they could make proof through lawful witnesses under oath. in a trial of commoners for their lives, a jury of twelve freeholders had to all agree on acquittal or conviction. in a trial of a peer, the others peers in parliament determined the outcome by a majority vote. 	jurors were required to have at least pounds income from freehold land or rents in fee, fee tail, or for life. this increase in the quality of the jury enabled it to better discern the issues in dispute. 	jury sympathy was determined by the sheriff who chose the jury. so if a sheriff was popularly elected, as in london, he chose jurors who favored individual and corporate liberty. if the king selected the sheriff, he chose tories, who supported the crown. 	issues of bastardy or lawfulness of marriage had to be tried by a jury. 	the civil suit of trespass on the case branched into assumpsit [a promise], trover [to recover goods converted to the use of another], deceit, negligence, and libel and slander. the latter supplements bad words punished by the local courts and defamation punished by the church courts. trover becomes the normal mode of trying the title to moveable goods as the courts oblige the defendant to answer the charge of conversion without permitting him to dispute the loss and finding of the goods by the plaintiff. this is an example of the initiation of a suit by a writ for trespass on the case: the king to the sheriff &c. as in trespass to show: wherefore (e.g.:___) he fixed piles across the water of plim along which, between the humber and gaunt, there is a common passage for ships and boats, whereby a certain ship, with thirty quarters of malt of him the said a, was sunk under water, and twenty quarters of the malt of the price of one hundred shillings perished; and other wrongs &c. as in trespass. 	this is an example of a writ for trespass on the case in assumpsit: the king to the sheriff greeting &c. as in trespass to show: wherefore whereas he the said x undertook well and competently to cure the right eye of the said a, which was accidentally injured, for a certain sum of money beforehand received, he the same x so negligently and carelessly applied his cure to the said eye, that the said a by the fault of him the said x totally lost the sight of the said eye, to the damage of him the said a of twenty pounds, as he saith, and have there &c. wherefore whereas he the said x undertook to make and build three carriages for conveying victuals of him the said a to parts beyond the sea for a certain sum of money beforehand received, within a certain term between them agreed; he the said x did not take care to make and build the carriages aforesaid within the term aforesaid, by which he the said a hath wholly lost divers his goods and chattels, to the value of one hundred marks, which ought to have been conveyed in the carriages aforesaid, for want thereof to the great damage of him the said a as it is said: and have there &c. 	this is an example of a writ for case on indebitatus assumpsit: the king to the sheriff &c. as in trespass to show: for that, whereas the said x heretofore, to wit (date and place) was indebted to the said a in the sum of for divers goods wares and merchandises by the said a before that time sold and delivered to the said x at his special instance and request, and being so indebted, he the said x in consideration thereof afterwards to wit (date and place aforesaid) undertook and faithfully promised the said a to pay him the said sum of money when he the said x should be thereto afterwards requested. yet the said x, not regarding his said promise and undertaking but contriving and fraudulently intending craftily and subtly to deceive and defraud the said a in this behalf, hath not yet paid the said sum of money or any part thereof to the said a (although oftentimes afterwards requested). but the said x to pay the same or any part thereof hath hitherto wholly refused and still refuses, to the damage of the said a of ------ pounds as it is said. and have you there &c. 	this is an example of a writ for case for trover: the king to the sheriff greeting &c. as in trespass to show: for that, whereas the said a heretofore to wit [date and place] was lawfully possessed as of his own property, of certain goods and chattels to wit, twenty tables and twenty chairs of great value to wit of the value of ___ pounds of lawful money of great britain; and, being so possessed thereof he the said a afterwards, to wit (date and place aforesaid) casually lost the said goods and chattels out of his possession: and the same afterward, to wit (date and place aforesaid) came into the possession of the said x by finding; yet the said x well knowing the said goods and chattels to be the property of the said a and of right to belong and appertain to him, but, contriving and fraudulently intending craftily and subtly to deceive and defraud the said a in this behalf, hath not as yet delivered the said goods and chattels, or any part thereof, to the said a (although often requested so to do) but so to do hath hitherto wholly refused and still refuses; and afterwards to wit (date and place aforesaid) converted and disposed of the said goods and chattels to his the said x's own use, to the damage of the said a of ____ pounds as it is said; and have you there &c. 	the rigid writs with specific forms of action for common law cases started to fall into disuse. later, trespass on the case bifurcates into misdemeanor and the tort of trespass. 	persons in prison on suspicion of treason could not be released on bail as of . 	if one of several defendants of a case was acquitted, all defendants recovered their costs from the plaintiffs. a person found guilty of malicious prosecution recovered his costs from his accuser. 	mercantile cases were decided in light of mercantile custom rather than according to the strict rules of the common law. 	merchants and traders could settle their trade disputes by arbitration, which decision could be enforced by court order. 	after the restoration, all legal decisions of the commonwealth and protectorate were confirmed subject to a right of appeal. 	the star chamber was not restored, and parliament assumed its control of the press. the king's bench succeeded to most of the star chamber's jurisdiction. no longer could the privy council influence criminal cases and the general supervision of legal processes through the star chamber. 	the high commission court was not restored, but church courts were, but with depleted powers. they accepted subordination to the common law courts. because the church's administration was inefficient and corrupt and its punishments inadequate, they gradually lost their power to the common law justices and justices of the peace. they had virtually no authority over laymen. they could still punish heresy, but lost jurisdiction over the law of libel and slander, which then were transformed by the civil courts, and over prostitution and scandalous lewdness. local ordinances for suppression of brothels, which were run by madams, were founded on breach of the peace. in , the death sentence was taken away from the church courts. in , church sanctuary was abolished. 	the county courts faded into insignificance, as the justices of the peace took on more jurisdiction. 	in , new justices were issued patents with "at pleasure" instead of "during good behavior" describing their tenure. charles ii and james ii frequently dismissed justices not favorably disposed to the crown. in , they were to have fixed salaries instead of the profits of justice. by statute of , justices' commissions were to be made with an established salary determined by parliament and a tenure to last during good behavior. they could be removed only by the address of both houses of parliament. this gave them independence from the king. their tenure lasted for the life of the monarch. 	the chief justice could empower persons by commission to take affidavits from people in the country for court proceedings in westminster. 	judgments were docketed so they could easily be found e.g. by heirs, executors, administrators, purchasers, and mortgagees. 	court judgments and fines could be challenged for error only within twenty years. 	court decisions were still appealable to the house of lords. in , skinner v. east india company held that the house of lords could not exercise original jurisdiction in civil cases between commoners as it had claimed, but retained its appellate jurisdiction. in , the house of lords acquired the new judicial function of hearing appeals from the chancery court by virtue of the case of shirley vs. fagg. 	any gaol keeper allowing a prisoner to escape in return for money lost his office forever and had to forfeit pounds. 	the last burning of a woman as a penalty for an offense, which had been only occasional, was in . 	the last bill of attainder, which condemned a person to death, occurred in . 	the pillory was still in use. 	benefit of clergy was taken away from those who stole cloth or woolen manufactures from their drying racks or who embezzled military stores or ammunition worth at least s, or stole goods of over s. value from a dwelling house with a person therein put in fear, a dwelling house in daytime with a person therein, or by day or night a shop or warehouse. 	a statute of gave jurisdiction to naval courts-martial to decide cases at sea, e.g. insubordination; failure to fight the enemy, a pirate, or rebels; not assisting a friend, mutiny, drunkenness, creating a disturbance to protest the quality of the food, quarreling, sleeping on watch, sodomy, murder, robbery, theft, and misdemeanors. usually the penalty was to be determined by the courts-martial, but sometimes death was decreed. 	in the american colonies, judges were still appointed by the royal governors and paid by the local legislatures. they still served at the pleasure of the king. - - - chapter - - - - times: - - 	dress was plainer than before. gentlemen wore white linen shirts; waistcoats fitted at the waist and covering the trunk at least; long lawn ties wound around the throat and tied in front with the tails tucked in, knee-length coats that were wide in the skirts and in the sleeve cuffs and having large gold, silver, or bronze buttons which didn't reach to the buttonholes on the other side of the coat; knee breeches of cloth, knitted wool, thread, and silk; and silk stockings rolled up at the knee. some shoes had metal buckles. gold fobs with watches or seals hung from the breeches pocket. the clothes were made of silk, satin, or velvet and often in colors such as yellow, orange, scarlet, blue, violet, pink, and dull slate, and decorated with gold and silver trimmings. a slender sword was worn on the side. short wigs, often powdered with heavily scented white or gray wheat flour, with rolls over the ears and hair tied at the back, were worn for formal occasions. wigs were made of human, horse, goat, or cow hair, or mohair, worsted, silk, or wire. sometimes feathers and cork were also used. there were new colors and cuts of dress for every season. by , wearing a sword was just a symbol of gentility. gentlemen often had valets to help them dress. ladies wore fitted full-length dresses held out by hoops with shoulders hidden, sometimes with a laced bodice with stays, and lace at the neck. the waistline fashion fluctuated between high and low and in tightness. the dress could be brocade, satin, velvet, silk, etc. some put jewels in their hair and had high elaborate hats with wide brims tilted forward. hair was in ringlets at the side or dressed close to the head with a small top knot covered with a laced cap. they also wore wigs when dressing up, decorated with ribbons and artificial flowers. hooded cloaks were used outdoors and hoods were used for sun or wind. they carried leather purses with gloves at elbow length. both gentlemen and ladies wore cosmetics and face patches and used tooth powders, breath sweeteners, lip salves, and choice perfume. some had false teeth of bone or ivory wired into place. both gentlemen and ladies had accessories such as fans, handkerchiefs, head scratchers, and elaborately designed snuff boxes, patch boxes, and perfume containers. both sniffed tobacco snuff but only men smoked it. they walked with tall, elegant canes, and women also carried parasols. hats were made of wool and hair of beaver, rabbit, or camel. a popular hat was three-cornered, and usually of beaver or dark felt. there was often a rosette or such to show one's political opinion. straw hats were worn in the summer. there were ready-made clothes and shoes, especially for children. night gowns and night caps were worn to bed. about , umbrellas for rain were introduced. they were made of waxed silk or taffeta. all but the poorest wore silk and lace. a prosperous countryman wore riding clothes consisting of breeches and boots, cut-away coat, and low top hat. 	the highest class were the peers and peeresses of the house of lords and their spouses and families. they were the nobility and held the high political offices, the high ranks in the army and navy, and owned large estates, usually scattered over the country. some were lawyers or merchants. there was much intermarriage among these families. indeed, many a noble family had salvaged its fortunes by marriage to a london merchant. the richest people in london were international merchants. these high class families lived in mansions with four or five living rooms, two to five acre gardens, and stables. 	the next class were the gentry. their family heads had land and were often justices of the peace. they were sometimes members of the house of commons. the oldest son took over from his father, while the others had to find a living such as in the church, law, medicine, or trade. the gentry usually lived in mansions. 	the old yeoman class was disappearing due to their selling their land to larger landowners. farming on a large scale was more productive. 	the next class were the "middling sort". in this class were merchants, lawyers, substantial tenant farmers, smaller freeholders, millers, innkeepers, in town traders, middlemen, clothiers, ironmongers, goldsmiths, grocers, linen drapers, apothecaries, school masters, clerks and civil servants, customs and excise men, and .shopkeepers, who now kept their wares inside and lived on the second floor. the town people lived in town houses of two stories plus an attic. 	the next class were the manual workers. these were wage earners or independent craftsmen, farriers, rural smiths (who shod horses and made stair rails, window-bars, torch extinguishers, lamp irons, bells, bolts, hinges, locks, and fire-grates), sawyers, carpenters, joiners, wheelwrights, nail makers, brick makers, plumbers (made lead cisterns, kitchen sinks, rainwater heads, drain pipes and lead flats for houses and ornaments), thatchers, spinners (silk, flax, hemp, wool, hair), dyers, wool combers, weavers, shoemakers, hat makers, belt and buckle makers, dressmakers, milliners (hats, caps, bonnets, cloaks, hoods, muffs), feather workers, button makers, lace makers, steel pin makers, brewers, cutlery makers, soap makers, candle makers (made from beeswax, tallow, mutton-fat, or beef-drippings), comb makers, barber/hairdressers (shaved, cut hair, made wigs and braids, and let blood), curriers, leather workers, carpet weavers, paper makers, tin-plate makers, printers, enamel workers, braziers and coppersmiths (made kettles, saucepans, canisters, milk pails, lanterns, candle boxes, candle sticks, and lamp lighters), basket makers, jewelers (made rings, perfumes, match boxes, buckles, and tops of canes), watch and clock makers, type founders, letter cutters, trunk and chest makers, cabinet makers, saddlers, coach body builders, coach carriage makers, shipwrights, rope makers, and sail makers. these workers typically worked in their stone or brick houses in a rural setting, with gardens, a cow, a horse, pigs, and poultry around them on - acres. they now ate white or wheaten bread instead of rye bread, much meat and cheese, and drank tea. working men could now afford leather shoes. these people also worked in the harvesting of grain. some consolidation of work was starting. for instance, the weaver, who had furnished himself with warp and weft, worked it up, and brought it to market himself was being displaced by weavers who worked under supervision for one merchant in a town on looms the merchant had acquired. many women and children were so employed. it was not unusual for a man to work hours a day for days a week. the wage earners were well above the subsistence level as long as trade was good. real wages were higher than at any time since the mid- s. but eventually, as the employer came to realize how dependent the weaver had become on him, wages tended to fall. in a gloucester weaver, with his wife to help him, could earn, when work was good, from s. to s. a week. a few years later, he could only earn about s. a woman spinner earned - d. a day in , but - d. in . in the same period, men's wages fell from d. to d. a day. only certain workers, whose special occupation needed greater skill, e.g. the wool-combers, whose wool was longer and of better quality than carded wool, and shearers, were better paid. in , wool combers made s. a week; their wage was about the same all over the country because they traveled form town to town in search of work and always supported each other. also in , newcastle miners earned s. a week, sheffield cutlers s. d. a week, a rotherham blacksmith s. a week, a furnace keeper at horsehay about s. a week, a staffordshire potter from - s., a witney blanket weaver or a wilton carpet weaver s. or more a week, a manchester cotton weaver from - s. a week, and a leeds cloth weaver about s. in this class also were ploughmen, cowmen, dairymaids of the bigger farms. they had cottages of wood, clay, and straw, with clay floors and low ceilings, and a divided ground floor. a few had homes built of stone, covered with slate or thatch. 	wages of industry were higher than those of agriculture. in , a day laborer earned - s. a week in winter and - s. in summer, without board or lodging. in the short harvest time, he could earn s. a week. 	lastly were the mass of the population of london: hordes of laborers who depended on casual employment and could be dismissed at will. 	about half the population had no resources but their labor, which was usually unskilled and lowly paid. in good times they had just enough to feed themselves. 	the gap between rich and poor became greater. marriage remained a main way to wealth. also, one trained in the law could aspire to have a successful career in high political office, which also brought wealth. but there was less social mobility than in the previous century and many landed families were consolidating their position. industrialists who had made a fortune for example, in steel, cotton, coal mining, and porcelain, and merchants who wanted to turn themselves into landed gentlemen found it very difficult to buy landed estates. old dissenter families, quakers in particular, who were highly esteemed as businessmen, as industrialists, and as model employers were excluded from the anglican landowning society. rich tradesmen, artists, actors, and writers found it difficult to buy substantial houses in the small market towns and countryside because of an entrenched hierarchical atmosphere there that didn't exist in london. the only gentlemen who were in household service were librarians, tutors, or chaplains. they ate with the family and did not consider themselves servants. servants were kept more at a distance. by the s the servant class was clearly defined. their quarters were moved to the basement of the house and they ate together in the kitchen. but some householders still had special occasions when everyone ate together in the dining room, with the servants at one end of the table. servants had no right to free time or to holidays. in about one tenth of the population in london had servants. even bricklayers and milk sellers had a servant. most families had just one servant. most wives employed some other woman or child to help in washing and scouring or in the minding of the children. 	london had grown beyond the locations of its walls around the city. london stretched ten miles along the thames, and was three miles wide in the center. on the east of the city was the port and industry. the west side ended at hyde park and regent's park and was residential. in it was still possible to shoot woodcock in regent street. in , westminster bridge was opened. in , the city walls were taken down to ease congestion. the typical london house, usually brick, was on a rectangular plan and had a basement to utilize all the space possible. walls were now more covered with hung damask, brocade, silk, and wallpaper or plain paint rather than by wood paneling. there were pictures on the walls. on the first floor was a front hall or parlor and a back parlor. one of these parlor rooms was the most important room, where the family entertained or spent leisure time. in it were sofas, armchairs, and stools of mahogany or white gilded wood. they were upholstered with damask or needlework. imported mahogany was replacing the favorite walnut that had replaced oak. much wood was inlaid with a variety of other types of woods. there was also a carved tripod table, china table, card table, and perhaps bookcases and/or tea-table. furniture with original designs made by the cabinet-maker chippendale was available. his genius was in combining various motifs into one harmonious design. cabinet makers had to keep abreast of his standards and to imitate them to conform with their customers' orders. cabriole legs with claw and ball feet came into fashion with queen anne about . between windows were tall mirrors. from , glass chandeliers hung from the ceiling to reflect candlelight coming from standing candlesticks or glazed hanging lanterns with brass frames. the fireplace had an elaborate mantel. the fire was kept going all day. it was lit by a tender box, which was unreliable. an iron fireback was behind the fire. the firewood was placed on andirons. fire grates were used from about . at a corner of the building was added a closet. on the second floor was a dining room, continuation of the closet below, and a drawing room, dressing room, or bedroom, and perhaps a study or music room with harpsichord. the dining room had a fireplace; curtains over the windows looped up at the cornices; one or more mahogany tables; a set of mahogany chairs with leather or hair- cloth seats fixed with brass nails, perhaps with some sort of metal springing; two mahogany sideboards with marble tops; cupboards or shelves or cabinets with displays of china porcelain; a wine-cooler; a dumb-waiter; and a folding leather screen. the china, which was displayed, was mostly imported, but there was some english china. later, there was famous wedgwood stoneware and pottery with bright, unfading glaze, or with dull black and red surfaces, biscuit ware of pale green, blue or purple, upon which white designs stood out like cameos. they came from the pottery factory at staffordshire founded by potter josiah wedgwood in . there were silver and pewter plates and serving pieces, silver candlesticks, silver knives, spoons, and two and three pronged forks, glass saltcellars from , and fingerbowls from which one rinsed one's mouth or cleaned one's fingers after dinner which were made of glass from about . on the third floor were bedrooms and a nursery. in the bedrooms, there was a high bed with curtains, canopies, piles of blankets and pillows, and steps up to it; wardrobe; chairs; a hand wash stand; chests of drawers; writing bureau; dressing table with a couple drawers and a mirror; swing standing mirror; tin rush candle canister; and night commode. children and servants slept on low wooden bedsteads. walls were stucco, a form of cement that could be sculpted, or paneled or hung with silk and printed paper. servants, such as the page and footmen, slept in the attic and perhaps in the kitchen or cellar. there was a wood staircase for the family and a back staircase for the servants. the floors and stairs were protected with carpeting. the kitchen was in the basement or in a covered shed in the back. it had an open fire and a tin oven. the cold water tap over the stone sink could supply cold water from a cistern in the basement or hand-pumped to a roof cistern through wooden pipes at very low pressure at stated hours for a fee. there was a wash shed in back. water pumped from the thames into underground pipes was thus distributed to householders three times a week. some water came from a well or spring, rain, and street water sellers. water carriers were still employed at set fees. water was kept in lead cisterns. the wealthy had basement cisterns filled by a commercial company. the free public conduits of water were out of use by . the front door of the house had two strong bolts on the inside and a heavy chain. the windows could be shuttered and barred. there were sash windows with cords and brass pulleys. at the back of the house was a garden and perhaps a coach house or stables. landscaping to reproduce an idealized country scene replaced formal gardens. foreign trees were imported. the latrine was usually not in the house, but somewhere in the back garden area. under it was a brick drain leading to a public sewer or to a cesspool. smelly gases arose from it. sometimes people gathered such waste up to sell to farmers returning home in an otherwise empty wagon. in , patented inside toilets began to be used. each stood in its own room. a watchmaker named alexander cummings patented in the water-closet, which had a stink trap u-bend behind which, after flushing, water resided and prevented the backflow of noxious sewer gas. its pans and overhead cisterns were made of pottery. they were supported by wood structures. there were better cements for building. chinese porcelain, embroidery, and lacquer work were popular. furniture and landscaped gardens were often done in a chinese style. 	many of the well-to-do now lived in districts without as well as within the city limits. many streets east of the city were named after the governing families whose estates were there. their mansions had interior columns, archways, marble halls and fireplaces, carving, gilding, rich colors, and high ornamented ceilings. they each had a picture gallery, a library, stables with coachmen, grooms, and stableboys, and a still-room for concocting liquors and cordials such as cherry brandy, sloe gin, and elderberry wine. medicine and scents were also developed in the still-room. hands were washed in bowls held up by wooden stands. there were built-in bathtubs, but they usually lacked hot and cold running water, so hot water usually had to carried up to them. 	in these mansions, there were many private parties and balls. the standard for politeness here was high and gentlemen were expected to keep their tempers. this came about because impoliteness could easily lead to a quarrel and then a duel. the pistol was replacing the sword as the weapon of choice for duels. good manners developed for all occasions, with much less swearing and less rudeness. by gentlemen's agreements, men did favors for each other without a monetary price, but with the expectancy of a favor in return. the love of one man for another was recognized as the highest and noblest of human passions. people of high social standing left their country estates to spend the winter season in their townhouses in london with its many recreations such as receptions, routs ]fashionable gatherings], levies, masquerades, balls, dinner parties, clubs, pleasure gardens, theaters, shops, shows, taverns, and chocolate and coffee houses. coffee houses provided turkish coffee, west indian sugar and cocoa, chinese tea, virginia tobacco, and newspapers. they were frequented by learned scholars and wits, dandies, politicians, and professional newsmongers. men of fashion often engaged in wagers and gambling at their clubs and coffee houses. there were wagers on such matters as the longevity of friends and prominent people, fertility of female friends, wartime actions, and political matters. gentlemen often had valets. carriage by sedan-chair was common. in , buckingham house was bought as a palace for the royal couple. 	physicians and lawyers lived in two-story brick mansions with attics and sash windows that could be lifted up and down with the help of a pulley. they had rectangular wood panes each with a sheet of glass cut from a circle of blown glass. the old blown glass was not regular, but had a wrinkled appearance. the center of each pane of glass was thicker with a knot in the middle left from the blow pipe. in front of the house were railings which supported two lanterns at the doorway. 	people from different parts of london differed in ways of thinking, conversation, customs, manners, and interests. for instance there were sections where sailors lived, and where weavers, watchmakers, and cow keepers each lived and worked. there were many specialized craftsmen who worked with their own tools in their own shops or houses, for some superior who had contact with the market and who supervised the final processes of manufacture. these included the goldsmiths, upholsterers, coach makers, saddlers, and watchmakers, all of whom had many dependents. the watchmakers had specialists making wheels, pinions, springs, hands, dials, chains, keys, caps, and studs in their own houses. the type of industrial organization most common in london was that in which work was given out to be done in the homes of the workers: the putting out system. some industries, such as watchmaking, silk weaving, and shoemaking were on both a putting out system and a system of an apprenticeship to journeymen working on piece work. shoes were made to order and ready made. the customer was measured in a shop, the clicker cut out the upper leathers, which were given to the closer to be closed, and then to the maker for the sole and heel to be put on. another class of shoemaker worked alone or with an apprentice in a garret, cellar, or stall, using pieces of leather cut out for him by the currier or leather cutter. london industries included the making of bread, beer, spirits, and vinegar; sugar refining; tobacco refining and snuffmaking; spinning and/or weaving of woolens, worsteds, silk ribbons, tape, and cloth; and making printed calico, clothes, linens, laces, tassels, fancy embroidery, stays, stockings, hats, shoes, leather goods such as boots, shoes, hats, gloves, harnesses, and saddles, jewelry, glass, candles, tapestry, musical instruments, cutlery, furniture, paint, varnish, paper, tools, swords, guns, heavy artillery, ships, sails, rope, carriages, precious and base metalwares such as brass and pewter ware, and printer's ink and glue; printing; and publishing. surgical instruments made included straight and curved knives and probes, lancets, scissors, spatulas, trepans (for cutting bone), and cupping cases. optical instruments made included eyeglasses, telescopes, and microscopes. in eyeglasses were held in place by frames that went over the ears, which replaced unreliable cords over the ears and leather straps tied behind one's head. also made were nautical instruments, quadrants, sundials, sectors, globes, scales, model solar systems, and air pumps. 	in london, the old distinction between craftsmen and laborers was blurred by the existence of trades which employed workmen under a skilled foreman instead of journeymen who had served an apprenticeship. these trades were, on a large scale, new. among the most important of these trades were the distillers and brewers of liquors, the tobacconists and snuff makers, the sugar refiners and soap boilers, the vinegar makers, and makers of varnish, glue, printers' ink, and colors. the latest chemical theories and the chemical explanation of dying brought about the invention of new colors and new processes in dying cloth. workers in these trades were considered as laborers, but their wages were high and their positions relatively secure. they learned their jobs by doing them. the older trades of a similar character, such as tallow melters and chandlers, wax chandlers, fellmongers [removed hair or wool from hides in preparation for leather making], and the tanners, employed journeymen. 	the skilled artisan who worked at home and either made goods for a master or sold to the trade verged into the shopkeeping class. on the other hand, the lowest type of shopkeeper, the chandler, the dealer in old iron, the tripe shop, the milk retailer, the keeper of a cook shop or a green cellar belonged to the class of casual and unskilled labor. the lowly chimney sweep, paid d. a day, served an apprenticeship as a boy, and then was his own master. 	the watermen and lightermen, by virtue of their fellowship and their apprenticeship and often the ownership of a boat, belonged to the class of skilled laborers. craftsmen in the building trades and paviours had their laborers as smiths had their hammermen to do the heavy work at laborers' pay. the street ragpickers, the ballad sellers, and the match sellers belonged to the class of beggars. 	there were buildings for boiling and distilling turpentine, for casting brass or iron, and for making glass for chemical works for sale. 	working women in london in were employed in domestic service: %, nursing and midwifery: %, cleaning and laundry: %, vitiating: %, shopkeeping: %, hawking: %, and textiles: %. those employed in domestic service were mostly young women who later married. some women were schoolteachers, innkeepers, or manufacturers, which were middle-class employments. many women in the realm engaged in a variety of occupations from fanmaking and hairdressing to catering, and, as widows, often carried on their husband's trade, including bookselling, hatmaking, building or ironmongery. 	although shops still had small frontages of about feet and the windows had small panes of bottle glass which partly obscured the view of the goods, there were magnificent shops with large windows displaying fine goods. there were bookshops, and print shops with prints of political satire with caricatures. the shops were generally open six days a week from a.m. to p.m., and years later to p.m. in josiah wedgwood opened a showroom in london for his high quality pottery from staffordshire. consumption was on a mass scale, many people buying what they wanted instead of just what they needed. there were circulating libraries, public concert halls, and professional boxing matches. at coffee houses, chocolate houses, and taverns, people played at dice and cards, gambled, talked politics and read daily newspapers, in which there was advertising, reports of marriages and deaths, grain prices, and book reviews. different professions and classes and groups, such as the whigs, the tories, classical scholars, scientists, clergymen, intellectuals, actors, writers, and journeymen of particular crafts, had their favorite meeting places. coffee houses reflected the character of their neighborhoods. they acted as postal centers, lost property offices, business addresses, physicians' consulting rooms, lawyers' and merchants' businesses, matrimonial agencies, masonic lodges, auction rooms, and gambling dens. some retained a supply of prostitutes. many taverns had a rentable private room for the better-off to drink wine, have meals, meet friends, gamble, do business, and hold meetings of societies and clubs, especially political clubs. from this beginning sprang private clubs such as the blue stocking club in and the literary club in , lloyd's for sale and insurance of ships in , and the stock exchange in . the blue stocking club was established by women who organized conversational parties with guests of intellect and wit. there was opera, playhouses, concerts usually with georg handel's oratorios such as the messiah or the foreigners bach and haydn, tea-gardens, fire works, balls, masquerades, wax works, beer shops, and bawdy houses, except on sunday. there were straight plays, comic operas, and melodramas. three-dimensional sets replaced the two- dimensional backdrop. plays containing thinly veiled satires on politicians were becoming popular. some plays had crude and licentious material. theaters still shared a close association with brothels. unlicensed theaters were closed down by a statute of , but most came to acquire patronage to get a license. this shaped the development of drama in london for a century. 	the beggar's opera depicting an immoral society unable to master its bandits was written by john gay as a powerful attack on a government which most of london hated. with its many ballads it became very popular. one such ballad goes: "through all the employments of life each neighbor abuses his brother; whore and rogue they call husband and wife; all professions be-rogue one another. the priest calls the lawyer a cheat, the lawyer be-knaves the divine; and the statesman, because he's so great, thinks his trade as honest as mine." 	another is: "a fox may steal your hens, sir, a whore your health and pence, sir, your daughter rob your chest, sir, your wife may steal your rest, sir, a thief your goods and plate. but this is all but picking, with rest, pence, chest and chicken, it ever was decreed, sir, if lawyer's hand is fee'd, sir, he steals your whole estate." 	the thames was crowded with sailing boats and with a line of boats waiting to unload. foreign and native ships lined the river banks in rows. theft of cargo from docked ships was still a problem and pirates were still executed at low tide on gallows. londoners went to the bridges crossing the thames to breathe fresh air. london air was so smoky and polluted by coal-burning in kitchens and factories that it gave a cough to newcomers. the river was so polluted by the sewers by that all the swans and most of the fish had disappeared. a mansion house was built for the mayor in . the king's zoo had ten lions, one panther, two tigers, and four leopards. deer hunting in hyde park was now confined to its northwest corner, which was enclosed for the king, who occasionally hunted there. elsewhere in the park were laid out walks and fountains. gardens were now natural instead of formal. the streets were usually crowded with people and traffic. many people traveled by sedan chair. on the streets were barrows with goods such as lace, threads, fruits, and chickens; beggars, ballad singers, musicians, bands, street dancers, apple women, piemen, muffin men, fruit sellers, nut sellers, pudding sellers, milk maids selling milk from buckets, milk sold directly from the cow, vendors of asses' milk, hawkers, newspaper boys, scavengers with carts, postal collectors, lamplighters on their ladders, wenches, chimney sweeps, rat catchers, pick pockets, swaggering bravados, strolling strumpets, brawling watermen, card sharps, overdressed beaux, dancing dogs, and acrobatic monkeys. each trade had it own call. billingsgate open-air market was now exclusively for the sale of fish. small tradesmen such as dairymen, butchers, bakers, fishmongers, and chandlers delivered to regular customers food bought from distributing centers. workers by necessity lived near their place of work because there was no cheap transport and walking through the streets after dark was unpleasant and dangerous. hours of work for most craftsmen was from a.m. to p.m., six days a week. 	it was common for working class families in london to live in a single room of their house and rent the rest, furnished, to people of different degrees of prosperity and even of different social grades. servants and apprentices slept in the kitchen, the shop, or the garret. the very poor, such as casual laborers and street sellers, silk winders, charwomen, usually lived in damp cellars subject to floods from excessive rain, or in cold and windy garrets. tenancy was usually on a weekly basis because of the general uncertainty of life and trade. conditions were so cramped that cabinet makers made beds which masqueraded in the day time as tables, bureaus, cupboards, or bookcases. the very poor slept in common lodging houses, sleeping uncovered on the floor, twenty to a room. some poor families slept in small hovels made of mud and straw with their pigs, domestic fowl, dogs, and even asses and horses. homeless children slept on the streets. all classes lived so much at coffee houses, alehouses or clubs, which they often used as their addresses, that house room was a secondary consideration. there was an alehouse on almost every street in london to provide cheap food and beer, lodging, employment information, credit, newspapers, tobacco, and meeting places for tradesmen. some alehouses were recognized employment agencies for certain trades, such as the hatters, smiths, carpenters, weavers, boot and shoe makers, metal workers, bakers, tailors, plumbers, painter and glaziers, and bookbinders. they were often run by one of the trade, retired or otherwise. some alehouses catered to criminals and prostitutes. for cheap and simple eating there were chophouses, cookshops, and beef steak houses. 	there were about , english immigrants a year to london in the s. they were mostly young people. london needed many immigrants because of its high death rate. over twenty london people a week died from starvation alone; they were mostly women. only about one-fourth of london's population had been born in london. especially welcome were sturdy country people for heavy manual labor, the better educated boys from the north for shops and offices, and the honest country people, as contrasted with london's poor, for domestic service. girls mostly looked for domestic service, but were sometimes made the mistress of the housekeeper or steered into prostitution as soon as they entered the city. an ambitious young man would seek an apprentice job, work hard, flatter his master, and try to marry his master's daughter. it was easier to find a place to live in london than in the villages, though there was much overcrowding. many shopkeepers and workshop owners in london were involved in leasing, purchases, and contracts. 	queen anne was authorized by parliament to build about more churches in london and westminster and their suburbs, to be paid for by a coal tax on imports into the port of london. churches in london were to be rebuilt with money paid by funeral rates, rates for tolling the bells, and rates for the use of palls [altar cloths]. queen anne also appropriated all her revenues from the first fruits and tenths of ecclesiastical benefices: , pounds, to the clerical poor in . 	there were fewer quarrels among passersby on the london streets; men were less likely to wear their swords. but there were fist fights by common men which gathered crowds and occasioned betting. most crime was petty theft, but mobs and riots were frequent, as there were no police. watchmen and constables were often old and physically incapacitated. the watchmen were householders taking their turn. this duty of householders watching the streets had evolved from the ancient obligation of wards to provide men to guard the walls at night. but few wanted these jobs by which they could offend their neighbors. many citizens paid a rate to be excused from watch and ward duty. constables were often tavern keepers. many riots were started when penal laws against the catholics were repealed. they began with the cries of "no popery", but then targeted rich men's houses. mobs sacked and pillaged at will, burned houses, and flung open the prisons to increase their numbers. there were political riots between tories and whigs. working men still used violence to protect their livelihoods, such as destroying the lodgings and public houses of cheap immigrant labor such as the irish. the stocking-knitters destroyed stocking-knitting frames so that the number of apprentices who could be employed would not reach the limit specified by its guild's regulations. parish workhouse children also provided a cheap supply of labor which forced down the wages of the stocking knitters. in a statute banned wearing of calico after mobs tore calico garments off women. in , thousands marched on parliament and persuaded it to ban foreign silk imports. but when a mob destroyed engine-looms, the army was used against the rioters and two of them were hanged. this was the last major mob action. around the tower, there were still demagogues standing on upturned carts haranguing passing crowds. the tower area was a favorite place for demonstrators, and for unemployed and dissatisfied workmen, particularly coal heavers and underpaid seamen protesting their low pay and poor living conditions. there was more crime, especially at night, now with organized bands of men or gangs of children. bounty hunters made a lot of money catching offenders. in , to deter the frequent robberies, burglaries, and other felonies at night, many glass lamps were set up in places determined by the mayor. they had to burn from sunset to sunrise. in , a lighting rate was imposed by the city to pay for all night lighting all year by hired lamplighters. anyone breaking or damaging the lights of london would forfeit s. for the first offense, s. for the second offense, and pounds for the third offense. the aldermen had to contract to pay for lighting, trimming, snuffing, cleaning, supplying, maintaining, and repairing them. to pay for this system, citizens paid according to the amount of rent their holdings were worth. if they didn't pay, they could not vote. 	bad areas of thieves and prostitutes and the slums east of the city were gradually being replaced by warehouses and offices. in , london bridge was widened and the houses were cleared off it. there were lanes for carriages in the middle and for pedestrians on each side. its arches were also widened to make the passage of vessels underneath easier. lights were put on it to be lit all night. and watchmen were put on it for protection and safety of passengers. this was paid for by tolls of / d. per horse, d. per carriage, and d.- s. for vessels with goods passing underneath. about , a body of enterprising citizens secured private acts of parliament which allowed them to levy a house tax in return for providing paving and lighting, which then greatly improved, as did sanitation. sidewalks were raised between the street proper and the buildings, replacing the protective posts which had lined the roads. flat stones were put in place of the pebbles on the roadway. signs hanging out from stores, which had blocked the sunlight, were placed flat on the front of the buildings. this also made the streets more airy. the buildings were given numbered addresses and street names were placed on buildings. loading and unloading could not exceed one hour. nuisances like empty carts could be removed. cranes used in warehouses had to be stored in unobtrusive places. one who drove on the foot pavement had to forfeit s. for the first offense, s. for the second offense, and s. for other offenses. wells were dug and pumps erected for watering the streets. pavements were to be repaired on complaint. dust boxes and dust holes were built and had to be used for refuse awaiting pickup by the raker or else forfeit s. in , the system of having every man responsible for cleaning the street in front of his door, which occasioned piles of rubbish in the central troughs of the streets waiting for the next rain to be washed away, was abandoned. but house occupants were required to keep the sidewalk in front of their house clean or else forfeit s. if one broke a light, he had to pay damages if it was accidental, and also s. if willful. wards were to choose substantial inhabitants to be collectors for a year at a time to collect the rates, which were not to exceed s. d. per pound of rents. if one declined to be a collector, he had to forfeit pounds. there were special stands for hackney coaches, which were s. d. for a day of twelve hours. their regulations were extended to sundays. 	in london, the normal system of building was for builders to buy up leases, put up a new building, and sell it before the lease became due. the rules for party walls between buildings were made more stringent: / bricks thick in cellar, bricks thick to the garret floor, and / bricks above the roofs or gutters. they had to be made of brick or stone. in , rain water from roofs had to be carried to the streets in lead or other pipes that were affixed against the side of the building. in , iron, copper, or other pipe or funnel for conveying smoke or steam were not to be near any inside timber, or in front of most any building or next to any public street, square, or court. 	in the s firefighters had to fill a tank on a wagon by hand with buckets. on top of the tank was a hose that could spray water high. london parishes were authorized to place upon the water pipes underground stop-blocks of wood with a plug and firecocks to go into such pipe at various distances so that there would be no loss in time in digging down to the pipes to get water to fight fires. parishes were required to keep at known places, ladders and a large engine and a hand engine to throw up water to extinguish fires including one leather hose with socket fitting the plug or firecock, so that buckets would not be needed. the sun insurance company was incorporated for fire insurance in . insurance offices were authorized to employ watermen with poles, hooks, and hatchets to be always ready at a call to extinguish fires. 	no more than sacks of meal, quarters of malt, bricks, or chalder of coal per load on wagons or carts with wheels bound with [narrow] iron tire are allowed within ten miles of london or westminster, or else forfeit one horse. this is to prevent decay of the roads. 	for every wagon and cart in london, there must be a person on foot to guide it to prevent the maiming, wounding, and killing of people, especially the old and children, when drivers ride on their wagons and carts. later, it was required that carts must display the name of the owner and be registered. still later, there was a penalty of s. for not having a person on foot to guide any cart. later still, in , if a new owner of a cart did not put his name thereon, he had to forfeit s., and the cart and horse could be seized and sold to pay the forfeiture. persons willfully obstructing passage on streets with empty carts or barrels or pipes shall forfeit - s. or do hard labor up to one month. the justices of london assessed rates and made regulations for carriage of goods. certain houses and buildings were bought and pulled down to widen several streets, lanes, and passages. 	in , persons driving cattle in london, whose negligence or improper treatment of such cattle cause them to do mischief shall forfeit - s. or else go to a house of correction for up to one month or be publicly whipped. 	the roads around london were neither very attractive nor very safe. along them was land covered with water from drains and refuse and dung heaps. hogs were kept in large numbers on the outskirts and fed on the garbage of the town. smoking brick kilns surrounded a great part of london. in the brickyards vagrants lived and slept, cooking their food at the kilns. 	queen anne's drinking of tea made it a popular drink, but it was still expensive. this habit improved health because to make tea, the water had to be boiled before drunk. breakfast included tea and bread and butter, and later toast with melted butter. the rich also had coffee and chocolate. the morning newspaper was often read at breakfast. the chief dinner dishes were roast beef, roast mutton, boiled beef or pork, with puddings and vegetables. roast meat was still the basic diet of town and country gentlemen. there were also fowls, tripes, rabbits, hares, pigeons, and venison. many elaborate sauces were made. the national dish was the pudding, a compound of steak, kidney, larks, and oyster. drinks included ginger beer, lemonade, barley water, coffee, chocolate, tea, and foreign wine. port from portugal was introduced about , and rum about . rum, made from sugar, first became popular as a medicine, well-whisked with butter. beer was drunk by the poorer and middle classes. the poor could afford very little meat now, unlike years ago. their standard fare was cheese, bread, and tea, the latter of which was usually from used tea leaves bought from rich houses. 	households were smaller; a peer had a household of about - . the proportion of women in a household grew to one-third to one-half. dinner guests sat and were served in order of rank, with gentlemen on one side of the table and ladies on the other. later, a fashion came in to sit alternately by sex. dinner was in several courses and lasted a few hours. toasts might be made. it was bad manners to put one's elbows on the table, to sniff the food, to eat too slowly or too quickly, to scratch, spit, or blow one's nose at the table, or to pick one's teeth with a toothpick before the dishes were removed. after dinner, the men drank, smoked, and talked at the table. there was a chamber pot under the sideboard for their use. politics was a popular subject. the women talked together in the drawing room. later, the men joined the women for tea and coffee. the evening often finished with card games, reading newspapers, verse-making, fortune-telling, walks in the garden, impromptu dancing, perhaps gambling, and supper. 	the nobility and gentry became more mobile and now mixed together at parties. at these afternoon parties, there were a variety of simultaneous activities, instead of everyone participating in the same activities together as a group. guests could choose to engage in conversation, news, cards, tea-drinking, music, dancing, and even go into supper at different times. sometimes a man other than her husband escorted a lady to a party. having lovers outside marriage was socially accepted if discrete. 	single women were discouraged from thinking of their independent status as desirable. their single status was to be regarded as unfortunate. weddings took place in public in church instead of privately. there were banns, or announcements, publicized before the wedding so that anyone who knew of a reason why the marriage should not take place could speak up. brides wore a white silk or satin dress with a train. over one third of brides who were capable of having children were already pregnant when they married. in a marriage statute required licenses to marry, the consent of parents or guardians for minors to marry, the calling of banns, and four weeks residence in the parish where the license was given by bishop or other authority. these requirements addressed the problems of the kidnapping of heiresses, prostitutes trapping unwary youths after getting them drunk, and priests performing marriages clandestinely and not in church, which required banns. two witnesses to the marriage were required to sign a certificate of marriage, which was then to be registered in the parish books. manufactured goods relieved ladies from baking of bread, brewing, and spinning. so they often visited with friends, wrote letters, embroidered, and supervised the servants. 	funerals ceremonies started with socializing at the house with refreshments, then going in a procession to the church for burial, and finally returning to the house for more socializing. 	it was possible for a woman-covert to be seized of land in fee simple or in tail general or special to her separate use, free from control or intermeddling of her husband. 	houses were warmed in winter by burning coal. moderate homes had tent-beds in use, with which cloth was hung on all four sides of the bed from a light iron framework above the bed. the beds were warmed with a warming pan heated in a fire before use. there were often bed bugs and fleas. everyone wore nightcaps to bed. pewter tableware was used, but the poor used tinware instead. copper, brass, and iron pots and pans were increasingly common. 	most towns had a regular market once or twice a week. in them, street cleaning was still a responsibility of individual householders. water was still obtained from wells and pumps. there was no municipal government as such. public works were done by special commissions set up for particular purposes, such as lighting, cleaning and paving the streets, night watchmen, traffic regulation, removing nuisances, and improving local amenities. large towns had hospitals for the poor. in the larger manufacturing towns, there were literary and philosophical societies for debates and discussions. these put together libraries for use of their members. also in these large towns, there were booksellers' shops, printing houses, weekly newspapers, playhouses, concerts, and horseracing courses, the latter of which was mostly patronized by gentlemen. some private citizens of various towns followed the example of london and obtained from parliament the right to levy a house rate for paving and lighting. 	towns tended to be known for certain specialties, such as seaside holiday resorts, spas like bath, cathedral towns, fashionable shopping for gentry, and towns with certain industries like glass and china manufacture, pinmaking, pottery, tanning, manufacture of linen, silk, cotton, and the knitting trade. certain towns were famous for certain varieties of wool cloth. before , a town with more than , inhabitants was considered a large town. shopkeeping was supplanting fairs and markets. certain industries were done on a large scale and required workers to be at the same site, e.g. brewing and distilling; building ships; printing fustians; making paper, soap from animal fat or candles; coal mining, iron production, mining and smelting of tin and copper, refining of salt, and digging of clay. certain other industries also required some kind of power or team work for their production, e.g. refining sugar; finishing cloth; making bricks; glassmaking; manufacture of ropes and sails, and processing of copper and brass into rods and sheets. often the manufacturer's house was surrounded by the many cottages of his workers. there the wife and children usually were busy carding and spinning. putting out work and subcontracting were widespread and created many small-scale capitalists. workers' hours were typically a.m. to p.m. 	though grammar schools were endowed for the education of local poor boys, they sought fee-paying sons of gentlemen. they taught arithmetic as well as reading and writing. translation and reading of latin was still important, e.g. aesop's fables, virgil, cicero's letters, caesar's commentaries, horace, pliny, juvenal, ovid, livy, and plautus. the "eton grammar" book replaced the "royal grammar" as the standard for latin and english grammar. the boys lived in boarding houses superintended by "dames" or older boys. there were usually two boys to a bed. there was bullying and initiation ceremonies such as tossing small boys up from a held blanket or having younger boys run naked in the snow. there were occasional rebellions by the boys and fights with the townspeople. flogging with a birch or caning with a rod until blood was drawn from the bare buttocks was the usual punishment. there were some national boys' boarding schools such as eton, winchester, and westminster. in these schools, boys could mix with sons of rich and powerful people, thus establishing important connections for their adult life. but there was more bullying of small boys by large boys at these schools and the smaller boys became menial servants of their seniors. occasionally there were student riots. however, most grammar schools were not residential. because the grammar schools were limited to boys, many boarding schools for girls were established. tradesmen's daughters were often sent to these to learn to act like ladies. most upper class girls were taught, at home or at school, english, writing, arithmetic, drawing, courtly dancing, needlework, music, and french. dissenting academies were established for those who did not pass the religious tests of the grammar schools. pencils were now in use. 	sons of gentlemen usually took "the grand tour" of the continent before going to university. these tours lasted for months or years, and always included paris and a protestant french university. the students went in groups with tutors. the chief purpose was now cultural, instead of practical. on these tours there was often misbehavior such as drinking and fighting. in , travelers checks were developed for those on the grand tour. 	the universities began to teach science. the new professorships at cambridge university were: chemistry, astronomy, experimental philosophy, anatomy, botany, geology, geometry, and arabic. ideas in geology challenged the bible's description of the creation of the world and there was a controversy over the origin and nature of fossils. in , a large pointed weapon of black flint was found in contact with the bones of an elephant in a gravel bed in london. oral and written examinations began to replace disputations. few professors lectured. 	dissenters were excluded from universities as well as from offices and grammar schools. oxford and cambridge universities were open only to members of the church of england, so other universities were established for dissenters. they taught geography, mathematics, science, physics, astronomy, mechanics, hydrostatics, and anatomy. at oxford and cambridge and harvard universities, students in science were relegated to different instructors, buildings, and degree ceremonies than students in literature, who often looked down on them as socially and intellectually inferior. 	the inns of court had ceased to provide residence. the period of education at law school at the inns of court was now reduced in from seven to five years for ordinary students and to three years for graduates of oxford or cambridge universities. the textbooks were: "doctor and student" by christopher saint-german in and "institutes of the laws of england" by thomas wood in . most landed families tried to ensure that at least one member of the family in each generation was educated at the inns of court after going to oxford or cambridge. in , attorneys formed a "society of gentlemen practitioners in the courts of law and equity". in order to earn a living, most attorneys had to attach themselves to some great patron and serve his interests. so it was hard for an ordinary person to find an impartial attorney or to find any attorney willing to contest a powerful family. 	the first encyclopedia came into existence in . in was the first public circulating library in london. samuel johnson put together the first dictionary in . it standardized spelling and pronunciation. then came dictionaries for the arts, sciences, and commerce. there were histories with political biases such as the earl of clarendon's "history of the great rebellion". alexander pope wrote witty satire on human faults of the period such as "rape of the lock". daniel defoe wrote "robinson crusoe", "moll flanders", and "the poor man's plea" protesting disparity of judicial treatment of rich and poor, for instance for drunkenness. henry fielding wrote one of the first novels: "tom jones". joseph addison wrote essays on social behavior. jonathan swift wrote the satire on the times, "gulliver's travels". samuel richardson wrote some of the first novels, such as "clarissa"; he wrote on values such as religious faith, moral virtue, and family closeness. catherine macaulay started writing her weighty and impressive "history of england". many schoolmistresses wrote textbooks on a variety of subjects. poet and essayist hester chapone wrote "letters on the improvement of the mind". elizabeth carter wrote poetry and translated greek works; her work was published in "the gentleman's magazine". hannah more wrote the play "the inflexible captive". the diaries of caroline girle powys daniel told of her extensive travels in the nation, and the various life styles of polite society she visited. defoe's newspaper was the first great political journal. he claimed that the people have a right to control the proceedings of parliament. essayists like richard steele, who introduced the periodical essay in his newspaper, and joseph addison, in his newspaper, wrote in a conversational style about the social life around them and the thoughts and behavior of common men and women in a light and good-humored way. they separated humor from the old-style farce and gave it taste and gentility. and with this came a moderation, reserve, and urbanity in matters of religion, politics, and society. religious issues even became a matter of indifference. fairies, witches, astrology, and alchemy were no longer taken seriously by educated men. tales of fairies, witches, ghosts, and miracles were deemed appropriate for children. childrens' stories were becoming a distinct literary form. nursery rhymes included "hush-a-bye baby on the tree top" and the five little piggies. "mother goose's melody" was published in . there were picture books for children such as cinderella, red riding hood, and sleeping beauty. craftsmen made small models of their wares, such as dolls' china, dolls' furniture, silver, and flat lead soldiers. babies had rattles and teething rings. 	in copyrights for books was given for years, renewable for another years. alexander pope's translation of the iliad and odyssey made him financially independent. he collected advance payments from subscribers who would be listed in the book. a new book industry emerged in london with booksellers as master manufacturers who employed writers, authors, copyers, and subwriters. booksellers sold books of sermons, histories, political and literary satires, literary criticism, and dictionaries. there was a growing popularity of novels. books were expensive to buy. regular magazines on the new and strange were published. there were three daily, six weekly, and ten thrice yearly newspapers. newspapers increased in number from founded in to a total of in . by , there were over a million throughout the country. workmen usually began their day by reading a newspaper at a coffee house. 	authors of books which have been registered at the stationers hall had the sole liberty of printing and reprinting such book for years. others who printed or sold or published such forfeited the books and paid one penny for each sheet found in their custody, / to the queen and / to the suer. the printer had to give a copy of each book printed to the company of stationers, the royal library, the libraries of the oxford and cambridge universities, and certain other libraries. 	in , the two universities in england, the four universities in scotland, and the several colleges of eton, westminster, and winchester were given in perpetuity a copyright in books given or bequeathed to them. 	the british museum was incorporated to hold the collections of robert cotton of manuscripts, books, records, coins, and medals and of hans sloane, which contained rare books, coins, precious stones, pictures, plants, and mathematical instruments and had been left to the public. 	italian opera was introduced in by georg handel on his visit to england. his music became the standard music of georgian england. the academy of ancient music was founded in . it set the standard of selection and performance. in existence were the violin (including ones made by stadivari), viola, cello, double bass, oboe, trumpet, clarinet, bassoon, trombone, horn, flute, harp, organ, harpsichord, in which the strings were plucked, and piano, in which the strings are struck by little hammers. orchestras had at least thirty members. many hymns were written. 	painting by artists developed. gentlemen had portraits painted of their horses and dogs as well as of family. joshua reynolds painted the wealth and beauty of england. painters such as gainsborough did landscapes and dramatic history paintings too, but neither of these sold as well as portraits. scenery was painted for the theater. places of business had signs painted which portrayed animals. coaches were painted with mythological creatures and such. gentlemen collected antique statuary and painting, such as by rembrandt and rubens. in an academy of painting was founded, which included women painters. the first public exhibition of paintings was in . the society of artists was formed in and incorporated by royal charter in . this differentiated them from the painter-stainers company of face painters, coach painters, and house painters. the royal academy of london was founded in to merge all private academies and societies into one official body and to recognize the best artistic work. joshua reynolds was its first president. it was at first financed by the king. under george i, sculptors became distinct from masons. they did monuments and portrait busts of the royal family, nobles, and great men. from italian influence, palladian architecture came into vogue. it was typified externally by a panoramic look achieved by horizontal lines, balanced alternatives of plain wall and openings, and portico with a heavy pediment like the front of a roman temple. stucco was often used to plaster housefronts, flute columns, and ornament pediments. architects took students. designers of engraved, etched, and historical prints were given the sole right to print them for years. copiers had to forfeit s. per print. 	foreigners were now interested in learning about english life, philosophy, and opinion. they learned english to read english literature such as shakespeare. no longer were france and italy the only centers of culture and influence on other nations. by , england was the leading sea power by far. 	the royal society was still the principal focus of scientific activity. issac newton was its president for several years and drew in more foreigners. its members were mathematicians, chemists, botanists, physicians, engineers, authors, poets, and theologians. papers given there generated much discussion at its meetings. newton opined that small particles attract each other by some force in a similar way that large bodies attracted each other. this force in immediate contact was exceedingly strong and performed chemical interactions, but at greater distances had no effect. also there were local associations and societies. there were learned journals such as "philosophical transactions". 	drovers bought cattle in the countryside, drove them to big towns, and sold them to fattening graziers or fatted them themselves. then they were driven into town and sold to the wholesale butcher, who sold the carcass to the retail butcher, the hides to the tanner, and the bones to the glue maker. flocks of geese were also driven into towns, after their feet were given a protective covering of tar. there were also middlemen wholesalers for cheese, butter, cloth, and iron. 	there was a rage of distemper among the cattle so serious that to prevent its spread, the king was authorized by parliament to make regulations for prohibiting the removal or sale of cattle and for the burial of distempered cattle. later, the king was authorized to prohibit the killing of cow calves. no one was to sell any ox, bull, cow, calf, steer, or heifer until he had possession of such for forty days or else forfeit ten pounds, later, the king was authorized to regulate the movement of cattle from one place to another. 	the main industry of the country was still agriculture. in the countryside, about half the arable land was under the open field system, in which land was cultivated in common. enclosures of land were still taking place. the enclosures were now done by statutory commissions to ensure equitable allotments. 	agricultural improvements came first to enclosed land, which comprised about half of the agricultural land. in the , jethro tull published a book about his invention of the seed-drill to first pulverize the soil for cultivation without manure and then to deposit seed at a uniform depth in regulated quantities and in rows instead of being thrown haphazardly. also explained was the horse-hoe to stir the soil about the roots of the plants to preserve moisture, promote aeration, admit warmth, and destroy weeds. there were more horses than oxen in use now in the fields. the horse-hoe was first used by large independent farmers on enclosed land. also invented was a threshing machine with a set of sticks to replace hand threshing with flails. under-drainage as well as irrigation was practiced. lord townshend alternated turnips, grasses, and grain in his fields, and thus provided winter food for his cattle. the two-field crop rotation with fallow periods was often displaced by the three-field system rotating grain crops, legumes, and fallowness. independent farming gave rise to the improvement of breeds of livestock by selective breeding. 	enclosed land produced bushels of grain compared to bushels for common field land. it produced pounds of sheep fleece compared to / pounds for common field land. overall, soils were improved by being treated with clay, chalk, or lime. artificial pasture was extended and there was increased use of clover, sainfoin, and rye-grass. grain productivity was four times that of . a fatted ox was pounds compared to the former pounds which it weighed from the s to the s. the fleece of sheep increased fourfold. 	by statute of , persons having rights of common in certain land may, by the major part in number and in value of each's tenement, enclose such land for planting and growth of timber or underwood. 	every village had a smith, carpenter, and miller. the larger villages also had a potter, a turner, a malster, a weaver, a tanner, and perhaps a mercer or grocer middleman. wheelwrights made ploughs, harrows, carts, and wagons. ploughs had one, two, or no wheels. poor farming families took up extra work in the villages such as making gloves, knitting stockings, or spinning yarn. craftsmen still helped farmers at harvest time. 	much of the rural population was now dispersed over the countryside instead of being concentrated in villages because so many small holders had sold out due to enclosures of farm land, especially of common land and waste land. the rural working class lived in two room cottages, with low ceilings, small windows, and an earth floor. patience was required for those willing to wait for an existing cottage in a village to be vacated. most laborers did not marry unless and until they found a cottage. ancient custom that a person could build a home for himself on waste land if he did it in one night was ceasing to be respected. farmers usually preferred employing day-laborers than keeping servants. there were many migrant workers, mainly from ireland, for the busy summer haymaking and harvesting. 	the children of laborers and of small farmers had little schooling because they were needed for work. they scared the birds, weeded the fields, picked the stones, tended the poultry, set beans, combed the wool, and collected the rushes and dipped them in the tallow. 	farm people relied on well water or rain water collected in lead cisterns. a farmhouse fireplace had pots hung from iron rods. saucepans sat on iron stands, which were stored above the mantel when not in use. spits were rotated by pulleys powered by the upward current of hot air or by a mechanical device. bacon was smoked in the chimney accessible by a staircase or upper floor. 	there still existed customary freeholders, who owned their land subject to certain customary obligations to the lord of a manor. 	the people displaced by enclosure became laborers dependent on wages or paupers. their discontent was expressed in this poem: "they hang the man and flog the woman that steals a goose from off the common but leave the greater criminal loose that steals the common from the goose." 	eventually there was some relief given to the poor workers. by statute of , wastes, commons, and fields having several owners with different interests might by three-quarters vote in number and in value of the occupiers cultivate such for up to six years. however, cottagers and those with certain sheep walks, or cattle pasture, could not be excluded from their rights of common. by statute of , the elizabethan statute restricting locations where cottages could be erected and their inhabitants was repealed because the industrious poor were under great difficulties to procure habitations. 	land could be rented out at ten times the original value. land was typically rented out for , , or years. great fortunes were made by large landowners who built grand country estates. the manufacturers and merchants made much money, but agriculture was still the basis of the national wealth. as the population grew, the number of people in the manufacturing classes was almost that of the agriculturalists, but they had at least twice the income of the agriculturalists. 	the greatest industry after agriculture was cloth. most of this activity took places in the homes, but families could earn more if each family member was willing to exchange the informality of domestic work for the long hours and harsh discipline of the factory or workshop. more wool was made into cloth in the country. dyed and finished wool cloth and less raw wool and unfinished broadcloth, was exported. bleaching was done by protracted washing and open-air drying in "bleach fields". there were great advances in the technology of making cloth. 	thomas lombe, the son of a weaver, became a mercer and merchant in london. he went to italy to discover their secret in manufacturing silk so inexpensively. he not only found his way in to see their silk machines, but made some drawings and sent them to england hidden in pieces of silk. he got a patent in and he and his brother set up a mill using water power to twist together the silk fibers from the cocoons into thread in . his factory was five hundred feet long and about five stories high. one water wheel worked the vast number of parts on the machines. the machines inside were very tall, cylindrical in shape, and rotated on vertical axes. several rows of bobbins, set on the circumference, received the threads, and by a rapid rotary movement gave them the necessary twist. at the top the thrown silk was automatically wound on a winder, all ready to be made into hanks [coils] for sale. the workman's chief task was to reknot the threads whenever they broke. each man was in charge of sixty threads. there were three hundred workmen. lombe made a fortune of , pounds and was knighted and made an alderman of london. after his patent expired in , his mill became the prototype for later cotton and wool spinning mills in the later s. there were many woolen manufacture towns. clothiers might employ up to three thousand workers. at these, the spinning was done by unskilled labor, especially women and children in villages and towns. weaving, wool combing, and carding were skilled occupations. 	in , clockmaker and weaver john kay invented a flying shuttle for weaving. it was fitted with small wheels and set in a kind of wooden groove. on either side there were two wooden hammers hung on horizontal rods to give the shuttle and to and fro action. the two hammers were bound together by two strings attached to a single handle, so that with one hand the shuttle could be driven either way. with a sharp tap by the weaver, first one and then the other hammer moved on its rod. it hit the shuttle, which slid along its groove. at the end of each rod there was a spring to stop the hammer and replace it in position. the flying shuttle doubled the weavers' output. now the broadest cloth could be woven by one man instead of two. this shuttle was used in a machine for cotton. but the manufacturers who used the flying shuttle combined together and refused to pay royalties to kay, who was ruined by legal expenses. now the price of thread rose because of increased demand for it. the weavers, who had to pay the spinners, then found it hard to make a living. but the process of spinning was soon to catch up. 	in , john wyatt, a ship's carpenter who also invented the harpoon shot from a gun, patented a spinning machine whereby carded wool or cotton was joined together to make a long and narrow mass. one end of this mass was drawn in between a pair of rotating rollers, of which one surface was smooth and the other rough, indented, or covered with leather, cloth, shagg, hair, brushes, or points of metal. from here, the mass went between another set of rollers, which were moving faster than the first pair. this stretched the mass and drew it into any degree of fineness of thread by adjusting the speed of the second pair of rollers. then the thread went by a flier, which twisted it. after this the thread was wound off onto spindles or bobbins, whose rotation was regulated by the faster pair of rollers. or the mass could be drawn by rotating spindles directly from one pair of rollers. this machine was worked by two donkeys and was tended by ten female workers. because of bankruptcy in , the invention was sold to edward cave, the editor of "gentleman's magazine". he set up a workshop with five machines, each fitted with fifty spindles and worked by water wheels. carding was done by cylindrical carding machines invented by lewis paul. 	in , the plant was bought by carpenter and weaver james hargreaves. he was watching his wife spin when the spinning wheel tipped over onto its side. it continued to revolve, while the thread, held between two fingers, seemed to be spinning itself, even though the spindle was in a vertical instead of a horizontal position. it occurred to him that a large number of vertical spindles arranged side by side could be turned by the same wheel and that, therefore, many threads could be spun at once. he named his machine the "the jenny" after his wife. this "spinning jenny" could spin a hundred threads at a time. he patented it about . the machine consisted of a rectangular frame on four legs. at one end was a row of vertical spindles. across the frame were two parallel wooden rails, lying close together, which were mounted on a sort of carriage and slid backwards and forwards as desired. the cotton, which had been previously carded, stretched, and twisted passed between the two rails and then was wound on spindles. with one hand the spinner worked the carriage backwards and forwards, and with the other he turned the handle which worked the spindles. in this way, the thread was drawn and twisted at the same time. the jenny did the work of about spinning wheels. no longer did it take ten spinners to keep one weaver busy. but manufacturers refused to pay him royalties for his invention. he was offered , pounds for his rights in the jenny, but refused it. the courts held that the model of his jenny had been used in industry before it was patented and any rights he may have had were declared to have lapsed. nevertheless, he made over , pounds. the spinning jenny was used in many homes. 	richard arkwright came from a poor family and was taught to read by an uncle. he became a barber and made wigs. he taught himself crafts necessary to invent and patent in a spinning frame worked by a water wheel, which he called a" water frame". he strengthened cotton thread by adding rollers to the spinning process which were able to strengthen the cotton thread and make it of even thickness so that it could be used instead of costly linen as the warp. with capital from two rich hosiers, he set up a workshop next to a swift and powerful river running down a narrow gorge. then he turned his attention to weaving this thread with multiple spinning wheels in the first practical cotton mill factory. in , he set up weaving workshops making pure cotton calicoes which were as good as indian calicoes. this was the first all-cotton cloth made in england. he had confronted and solved the problem of a statute of which proscribed wearing or using printed, painted, stained or dyed calicoes e.g. in apparel, bed, chair, cushion, window curtain, and furniture, except those dyed all in blue, or else forfeit pounds by a seller, pounds by a wearer, and pounds by other users. the purpose was to provide wool-working jobs to the poor, whose numbers had been increasing excessively because of lack of work. arkwright argued that the statute should not include printed or painted cloth made in great britain in its ancient tradition of fustians with an all linen warp for strength and a cotton weft for fineness. this statute was so "clarified" in . when wool-weavers had expressed their opposition to imported printed cottons and calicoes by tearing them off people, a statute of provided that any one who willfully and maliciously assaulted a person in the public streets or highways with an intent to tear, spoil, cut, burn, or deface the garments or clothes of such person and carried this out was guilty of felony punishable by transportation for seven years. the prohibition against the manufacture and wearing and using of pure cotton fabrics came to an end in on arguments of arkwright made to parliament that his pure cottons would bleach, print, wash and wear better than fustians. 	in , arkwright added machines to do work prefatory to spinning. raw cotton was first fed by a sloping hose to a feeder that was perpetually revolving. from here it went a carding machine of three rollers of different diameters covered with bent metal teeth. the first, with teeth bent in the direction of its revolution, caught up the cotton fibers. the second, revolving in the same direction but much faster, carded the fibers into the requisite fineness by contact with the third, whose teeth and motion were in the opposite direction. next, a crank and comb detached the carded cotton so that it came off as a continuous ribbon. then the ribbon went into a revolving cone, which twisted it on itself. eventually arkwright became rich from his creation of the modern factory, which was widely copied. he established discipline in his mills and he made his presence felt everywhere there, watching his men and obtaining from them the steadiest and most careful work. he provided housing and services to attract workers. 	after cotton, the inventions of the spinning jenny and the water- powered frame were applied to wool. silk and cotton manufacture led the way in using new machinery because they were recently imported industries so not bound down by tradition and legal restraint. yarn production so improved that weavers became very prosperous. cards with metal teeth challenged the use of wood and horn cards with thistles on them in carding wool. merchants who traveled all over the world and saw new selling opportunities, and therefore kept encouraging the manufacturers to increase their production and improve their methods. factory owners united to present suggestions to parliament. 	manufacturing broke loose from traditional confines in several ways. to avoid the monopolistic confines of chartered towns, many entrepreneurs set up new industries in birmingham or manchester, which grew enormously. manchester had no municipal corporation and was still under the jurisdiction of a manor court. it sent no representative to the house of commons. all over the country the justices of the peace had largely ceased regulating wages, especially in the newer industries such as cotton, where apprenticeship was optional. apprenticeship lapsed in many industries, excepting the older crafts. several legal decisions had declared seven years practice of a trade as good as an apprenticeship. 	apprentices still lived in their masters' houses and were still treated as family members. the regulations of the cutlers' company remained in force as its masters used their great manual skill to make cutlery in their own homes with the help of their children and apprentices. trades in some towns which had guild regulations that had the force of law hung on to their customs with difficulty. 	although there were few large factories in the country under effective management of a capitalist, trade unionism was beginning as two distinct classes of men were being formed in factories. the factory owner was so high above his workmen that he found himself on the same level as other capitalists, the banker, who gave him credit, and the merchant, who gave him customers. journeymen in factories could no longer aspire to become masters of their trade and no longer socialized with their employers. hard and fast rules replaced the freedom of the small workshops. each worker had his allotted place and his strictly defined and invariable duty. everyone had to work, steadily and without stopping, under the vigilant eye of a foreman who secured obedience by means of fines, physical means, or dismissals. work started, meals were eaten, and work stopped at fixed hours, signaled by the ringing of a bell. factory hours were typically fourteen hours or more. organized resistance, as usual, began not with those most ill-treated, but with those men who had some bargaining power through their skills. 	wool-combers, who worked next to a charcoal stove where they heated the teeth of the comb, were the most skilled of the cloth industry were hard to replace. since they were nomadic, they quickly organized nation-wide. they agreed that if any employer hired a comber not in their organization, none of them would work for him. they also would beat up and destroy the comb-pot of the outsider. in and , the tiverton wool-combers objected to the import of combed wool from ireland by burning irish wool in clothiers' stores and attacking several houses. they had strike funds and went on strike in . their bloody brawls caused the military to intervene. then many of them left town in a body, harming the local industry. the earnings of wool-combers was high, reaching from s. to s. a week in , the highest rate of a weaver. 	in , the colchester weavers accused their employers of taking on too many apprentices. when the weavers organized and sought to regulate the weaving trade, a statute was passed in making their combinations void. strike offenses such as housebreaking and destruction of goods or personal threats had penalties of transportation for seven years. still in , the gloucester weavers protested against men being employed who had not served their apprenticeship. 	when the journeymen tailors in and around london organized a union, a statute made their agreements entering into combinations to advance their wages to unreasonable prices and to lessen their usual hours of work, illegal and void, because this had encouraged idleness and increased the number of poor. tailors' wages were not to exceed s. per day and their hours of work were to be a.m. to p.m. for the next three months, and s. d. per day for the rest of the year. a master tailor paying more would forfeit pounds. a journeyman receiving more was sent to the house of correction for months. justices of the peace could still alter these wages and hours depending on local scarcity or plenty. despite this statute, the journeymen tailors complained to parliament of their low wages and lack of work due to their masters calling them to work only about half the year. there was much seasonal fluctuation in their trade as there was in all trades. the slack period for the tailors was the winter, when the people of fashion retired to their country estates. after their complaint, their wages then rose from s. d. per day in , to s. d.- s. in , to s.- s. d. in , to s. d.- s. d. in , to up to s. / d. in , and to s. in . foremen were excluded from wage control. when they complained of their long hours, which were two hours longer than the a.m. to p.m. of most handicraft trades, their hours were reduced in by one hour to a.m. to p.m. and their pay was set at d. per hour for overtime work at night during periods of general mourning, e.g. mourning for a deceased courtier. their work hours were lowered another hour to a.m. to p.m. in . 	the stocking frame-knitters guild, which had been chartered in , went on strike to protest the use of workhouse children as an abuse of apprenticeship which lowered their wages. they broke many of their frames, which belonged to their employers, to limit their number. 	in , combinations to advance wages, decrease hours of work, or regulate prices were declared void for journeymen dyers, journeyman hot pressers, all wool workers, brickmakers and tilemakers, journeymen servants, workmen, laborers, felt and hat makers, and silk, linen, cotton, iron, leather, and fur workers in and around london. the penalty was prison or hard labor at a house of correction for three months without bail. in , justices of the peace were to determine the rates of wages of wool workers according to numbers of yards. but this was repealed the next year to prevent combinations of workers. wage agreements between clothiers and weavers were declared binding. clothiers not paying wages within two days of delivery of work forfeited s. 	in the silk weavers in east london drew up a scale of wages, and upon its being rejected, of them broke their tools, destroyed the materials, and left their workshops. a battalion of guards had to take possession of the area. in , the silk weavers marched on westminster to stop the import of french silks. in , the weavers rebelled against a d. per yard reduction in their wages, filling the streets in riotous crowds and pillaging houses. after the garrison of the tower came, the workmen resisted with cudgels and cutlasses, resulting in deaths and woundings. the throwsters [those who pulled the silk fibers from the cocoons of the silk worms and twisted them together to make a thread] and the handkerchief weavers also became discontent. a battle between soldiers and silk weavers at their meeting place resulted in several men on both sides being killed. in , wages and prices for the work of journeymen silk weavers in and around london were designated to be regulated by the mayor and justices of the peace. foremen were excluded. no silk weaver could have more than two apprentices or else forfeit pounds. journeymen weavers entering into combinations forfeited s. this statute satisfied the weavers, but they formed a union to ensure that it was followed. 	in , , and , there were strikes which stopped the work of the coal industry and harbor at newcastle for weeks. in , the keelmen formed a combination to force their employers to use the official measure fixed by statute for the measurement of loads of coals. 	the book "consideration upon the east-india trade" dating from advocated free foreign trade. it argued that the import of goods from india not only benefited the consumer but also the nation, because it was a waste of labor to use it in producing goods which could be bought cheap abroad. this labor could be better put to use at easily learned plain work in the new industries. also the low cost of imported goods would motivate the invention of machines in the nation which would be even more efficient in manufacturing these goods. but english manufacturers were still suspicious of free trade. 	making beer and distilling gin from barley were widespread. the pastimes of gambling and drinking were popular with all classes. in the trades, this was promoted by the uncertainties of life and work and a general sense of instability. many london tradesmen started their day with a breakfast of beer, bread, and cheese, the traditional breakfast of countrymen. gambling and dissipation reduced some london men with good businesses to destitution, the work house, or street begging. drunken gentlemen played pranks such as imitating a woman in distress or throwing a person in a horse trough. some innkeepers had "straw houses" where customers who were so drunk they were unable to walk home could sleep in fresh straw. a person could get drunk for a few pence. gambling with cards was a popular pastime after dinner. cricket matches were played by all classes instead of just by humbler people; there were county cricket matches. gentlemen often took their coachmen with them to public events such as cricket matches. tennis was a sport of the wealthy classes. billiards, chess, and games with cards or dice were played, especially in alehouses. there was horse racing on any open ground to which people brought their horses to race. jockeys tried to unseat each other. hunting of rabbits and then foxes replaced deer hunting. bird and duck hunting was usually with flint lock guns instead of hawks, as the hedges provided cover from hawks. there was fishing with line, hook, and bait. watching the hanging of felons, about a year in london, was popular, as was going to bedlam to watch for a fee the insane being flogged. people went to the tower to try to get a glance at a famous prisoner looking through a window or taking a walk along the battlements. besides the grand pleasure gardens for gentry, there were lesser pleasure gardens in london for working families, which offered fresh air, tea, beer, swimming, fishing, courting, bowling, and cheap entertainment. running, vaulting, and leaping were still popular in the countryside. fairs had amusements such as fire swallowers, ventriloquists, puppet shows, acrobats, jugglers, animal performances, pantomimes, boxing, dwarfs, and albinos, but less trading. in was the first circus. circuses included feats of horsemanship and clowns. there was also eating and drinking competitions, foot races, football, archery, some wrestling, and some bowling on greens or alleys. in winter there was ice skating with blades and sliding. the right of public access to st. james park became entrenched by the s. there was sailing, rowing, swimming, and hopscotch. george iii made sea-bathing popular and it was supposed to be good for one's health. there was steeple chasing as of . horse-racing was given rules. on sunday, there was no singing, music playing, dancing, or games, but the bible was read aloud, prayers were said, and hymns were sung. sabbath-breakers were fined by magistrates. men often spent sunday in a tavern. 	in general, commodity prices were stable. but when harvests were poor, such as in when there was famine, and between and , bread prices rose. the price of wheat in london, which since had been between s. and s., rose to s. in . then the poor engaged in food riots. these riots were often accompanied by mob violence, burning, and looting of grain mills, shops, and markets. the english economy was so dependent on foreign trade, which had trebled since the s, that the slightest disturbance in the maritime trade threatened the english with starvation. in many localities the men in need of parochial relief were sent around from one farm to another for employment, part of their wages being paid from the poor rates. the poor often went from parish to parish seeking poor relief. settled people tended to fear wandering people. parishes sought to keep down their poor rates by devices such as removing mothers in labor lest the infant be born in the parish. so a statute was passed that a child born to a wandering woman could not have the place of birth as his settlement, but takes the same settlement as his mother. another device to prevent others from establishing settlement in a parish was for its farmers to hire laborers for only fifty-one weeks. also, some apprentices were bound by means other than indenture to avoid settlement. laborers who came to work in industries were refused settlement and sent back to their original parishes whenever they seemed likely to become dependent on the rates. statutes then provided that a parish must give settlement to apprentices bound for forty days there, not only by indenture, but by deed, writings, or contracts not indented. in , parishes were authorized to purchase houses in which to lodge or employ the poor and to contract with any person for the lodging, keeping, maintaining, and employing of the poor. these persons could take the benefit of the work, labor, and service of these poor, which was then used for the relief of other poor. the poor refusing such lodging could not then get relief. many of the poor starved to death. the propertied classes turned a blind eye to the predicament of the poor, opining that they were idle or could save more and did not need higher earnings. 	charitable organizations gave to the poor and set up all day sunday schools to set wayward children on a moral path. the sunday schools could accommodate children who worked during the week. punishment of children by parents or others could be by whipping or even sitting in stocks. about half of the people were dependent on poor relief or charities. 	desertion by a man of his family was a common offense. parishes providing upkeep for the family sent men to find the errant husbands. the parish would ask unmarried mothers who was the father of their child and then force him to marry her or pay for the upkeep of the child. he often made a bargain with the parish to release him of his obligation for a sum of money paid to the parish. but many young parish children died of neglect, and later, parishes were required to list children under four to aid in accounting for them. divorces were still few and expensive, but increasing in number; there were more in this period. it was easier for a man to get a divorce for one act of adultery by his wife, than for a wife to get one for habitual unfaithfulness. 	vagrants and other offenders could be committed to houses of correction as well as to county gaols, because of the expense of the latter. 	crime was exacerbated by orgies of liquor drinking by the common people, especially between and , the sale of which did not have to be licensed as did ale. in , it was required that retailers of brandy, rum, and other distilled spirituous liquors be licensed and to pay pounds a year for their license, because excessive use had been detrimental to health, rendering persons unfit for useful labor and business, debauching their morals, and inciting them to vices. only persons keeping public victualing houses, inns, coffee houses, alehouses or brandy shops who exercised no other trade were allowed to obtain a license. this excluded employers who had sold liquors to their journeymen, workmen, servants, and laborers at exorbitant prices. street vendors who sold liquors had to forfeit pounds. a duty of s. per gallon was imposed on the retailers. there were riots in london against this statute and its new duties. there had been a tremendous growth in liquor drinking, which did not stop but went underground after this statute. in , a penalty of pounds or hard labor for two months was made for selling spirituous liquors without a license. also licenses were restricted to people who were certified by four reputable and substantial householders to be of good fame and sober life and conversation. sellers had to maintain good order in their premises or else forfeit pounds. about only innkeepers, victualers, and vendors paying rent of at least shillings could sell gin at retail. the punishment for the second offense was whipping and imprisonment. that for the third offense was transportation out of the country. in , additional duties were placed on spirituous liquors to discourage immoderate drinking going on by people of the meanest and lowest sort to the detriment of the health and morals of the common people. in , these duties were again raised. in , officers were authorized to seize all horses, cattle, and carriages used to transport foreign spirituous liquors for which duties had been evaded. in , the penalty for selling without a license was raised to pounds, which could not be mitigated below pounds. half the forfeiture was to go to the suer. 	the informer system for enforcing laws had its drawbacks. informers were not trained and were sometimes retaliated against for informing. sometimes this meant being tortured to death. sometimes there were schemes in which a leader of thieves, would take a profit in the stolen goods by posing as a good citizen who tracked down and returned them to the owners for a fee. also he might inform on his companions to get the reward for informing or to punish a troublesome one. sometimes the owner of goods was involved in a fake robbery. an effort in to turn the whole haphazard system of informers, into a specialized organization for the detection and apprehension of criminals had caused a mob to form and make threats. englishmen associated a police force with french tyranny. nevertheless, about , sir john fielding, a bow street magistrate, and his half-brother picked men to police the street under the direct control of the bow street magistrates. this first police district made an impact on the increasing violence of the times. in , a proposal before parliament to have a national census was also defeated by public fear of liberty being curtailed by having to make account of the number and circumstances of one's family and giving out information that could be used by enemies both in the realm and abroad. 	in , the mercury thermometer was invented by gabriel fahrenheit of germany; this was much more accurate than the alcohol and water thermometers. sweden's anders celcius invented the celsius scale. the hydrometer, which measures air humidity, was also invented. these made possible weather forecasting. in , the french chemist etienne geoffroy published a table of affinities among chemical substances, a precursor to the periodic table of elements. carolus linneaus, a swedish naturalist and botanist, established the scientific method of naming plants and animals by genus and species. when he showed that there was a sexual system in plants, church authorities were so shocked that they suppressed this knowledge as they did other scientific knowledge. rev. stephen hales made ventilators for ships, prisons, and granaries, using the method of injecting air with bellows. this saved many lives in the prisons. in , he discovered that water that plants lost by evaporation was restored by the roots up the stems. he found that gas could be obtained from plants by dry distillation and invented a way to collect gases by heating certain substances. 	hans sloane, the son of a receiver-general of taxes, who became a physician, had collected hundreds of species of plants in jamacia while physician to its governor. he became physician to george ii and was a benefactor to many hospitals and devised a botanic garden in london for the society of apothecaries. 	italian luigi marsigli started the science of oceanography with a treatise discussing topography, circulation, ocean plants and animals, along with many measurements. frenchman jean-etienne guettard prepared the first true geological maps, showing rocks and minerals. he identified heat as the causative factor of change in the earth's landforms. john mitchell studied earthquakes. 	in , george hadley, a london lawyer and philosopher, determined that the cause of the prevailing westerly winds was the rotation of the earth to the east. benjamin franklin in observed that a particularly violent storm occurred in boston a day after a particularly violent occurred in philadelphia, and realized that they were the same storm, even though the storm's surface winds were from the northeast. he determined that atlantic coastal storms traveled from the southwest to the northeast. in , he prepared the first scientific chart of the gulf stream. 	daniel bernoulli, a swiss university lecturer in physics, mechanics, medicine, and anatomy, proved his theorem that any degree of statistical accuracy can be obtained by sufficiently increasing the observations, thereby also representing the first application of calculus to probability theory. in , he showed that as the velocity of horizontal fluid flow increases, its pressure decreases. this followed from his theorem that the total mechanical energy of a flowing liquid, comprising the energy associated with fluid pressure, the gravitational potential energy of elevation, and kinetic energy of fluid motion remains constant; that is, the mechanical energy is conserved. this was the first mathematical study of fluid flow. he demonstrated that the impact of molecules on a surface would explain pressure, and that assuming the constant random motion of molecules, pressure and motion will increase with temperature. he explained the behavior of gases with changing pressure and temperature, establishing the kinetic theory of gases. jean nollet from france discovered osmosis, the passage of a solution through a semi-permeable membrane separating two solutions with different concentrations. 	in , scotsman physician joseph black identified carbon dioxide, the first gas recognized as distinct from everyday breathing air. he did this by using a balance to weigh alkalies before and after exposure to heat. they lost weight by losing carbon dioxide. his development of the concept of latent heat, the quantity of heat absorbed or released when a substance changes its physical phase at constant temperature, was the first application of quantitative analysis to chemical reactions. he ascertained the effects of carbon dioxide on animals and its production by respiration, fermentation, and burning of charcoal. at this time, all flammable materials were thought to contain "phlogiston", which was given off as they burned and was associated with the transfer of heat. plants were thought to remove phlogiston from the air and therefore burned when they were dry. 	in , joseph priestly, a nonconformist minister, schoolmaster, and tutor, discovered oxygen by heating red oxide of mercury. he became interested in the study of gases by watching the process of fermentation in a brewery next to his house. his gas collection techniques enabled him to work with gases soluble in water. he showed that the processes of combustion, respiration, and putrefaction caused one-fifth of air exposed over water to disappear, and that plants restored air vitiated by these processes. when he isolated oxygen, he noted that it was better than air in supporting respiration and combustion produced by heating certain metallic nitrates. it was called "respirable air". 	hydrogen (inflammable air) and nitrogen were discovered. the differences between acids, bases, and salts and their relationship to one another became understood. there was some theoretical as well as empirical knowledge about metals, e.g. in boiling points, intermetallic compounds, and changes in properties. 	in , benjamin frankin invented the franklin stove, which greatly improved heating efficiency. as a freestanding cast-iron fireplace, it supplied heat in all directions instead of only from the one direction of the usual wall fireplace. also, the heat absorbed by its cast-iron sides provided warmth even after the fire went out. 	static electricity was being discerned. it had been noticed that shaking a mercury barometer produced a strange glow in its "vacuum". experiments showed that a glass rubbed in vacuo would shine brightly and that an exhausted glass globe rapidly whirled on a spindle and rubbing against the hand produced a brilliant glow. and further, as newton wrote: "if at the same time a piece of white paper or white cloth, or the end of ones finger be held at the distance of about a quarter of an inch or half an inch from that part of the glass where it is most in motion, the electric vapor which is excited by the friction of the glass against the hand, will by dashing against the white paper, cloth, or finger, be put into such an agitation as to emit light, and make the white paper, cloth, or finger, appear lucid like a glowworm". in the study of electricity, conductors and insulators were recognized. there were demonstrations of electrical phenomena such as seeing the ignition of brandy by a spark shooting from a man's finger and the feeling the transfer of an electrical impulse created from a rubbed glass globe among a circle of people by their holding hands. in , frenchman charles dufay discovered that there are two types of static electric charges, and that like charges repel each other while unlike charges attract, linking electricity to magnetism. 	in , benjamin franklin "caught" lightning with a sharp pointed wire attached to the top of a kite which led down to a key at the other end. when a thunder cloud electrified the kite, a charge was seen coming from the key to an approaching finger. this charge was then stored in an early type of capacitosr, a leyden jar, and then reproduced to create the same feeling of transfer of electrical impulse among a circle of hand-holders, thereby illustrating that it was the same phenomenon as electricity. this countered the theological belief that thunder and lightning were signs of divine displeasure or the work of the devil. franklin invented the lightening rod, which was then used to protect buildings. about ten years later, the first lightening rod on an english church was erected, which showed the church's acceptance of his theory. franklin theorized that there were electric charges everywhere and designated them as positive or negative. he observed that opposite charges attracted each other, but that like charges repelled each other. in , joseph priestly did an experiment suggested by franklin and showed that electrical force follows the same law as gravitational force; that is, that the attraction or repulsion between two electrical charges varies inversely in proportion to the square of the distance between them. 	joseph-louis lagrange from france developed differential equations. natural history museums were established. a group split off from the royal society to show collections of curiosities. 	in , a self-educated mechanic founded the society for the encouragement of arts, manufactures, and commerce. it had sections on agriculture, manufactures, mechanics, chemistry, liberal arts, and trade and colonies. it sponsored contests at which prizes were given, such as that in for the best invention of a machine that would spin six threads of wool, flax, cotton, or silk at one time with only one person attending it. 	machines still mostly relied on human, animal, and water power. 	abraham darby was a quaker and millwright who made large cooking pots of iron, which cost less than bronze. around , he experimented with various substances to take the place of wood charcoal in iron smelting. coal was a remote possibility. in forging or working metals coal had more or less the same qualities as wood charcoal, but this was not the case in smelting ores, especially iron ore. coal contained sulphur compounds which caused the iron ore to deteriorate. so he controlled the burning of coal to burn out these impurities, which produced coke. his son took over after his death and improved the methods of coking, strengthened the bellows, and added ore limestone and other reagents to the mixture. by , his large blast furnace using both pit coal and wood charcoal was very productive. he made iron goods of such quality as those imported. 	in , richard reynolds replaced the wooden rails connecting a blast furnace to mines with cast iron rails. he had apprenticed as a grocer and then became a partner in a large ironworks of darby with a man whose daughter he married. after darby died and before darby's sons became of age, reynolds was in charge of the ironworks. he cast cylinders of the early steam engines. 	in john roebuck, a physician and son of a prosperous manufacturer of sheffield goods, found a cheaper way to manufacture sulphuric acid. he did this by using leaden chambers instead of glass globes to collect the vapor from burning nitre and sulphur over water. this reduced the cost of sulfuric acid to one-fourth of its previous cost, so that sulfuric acid came to be used to bleach linen instead of sour milk. he also made cast iron into malleable iron by smelting iron using coke from pit-coal instead of charcoal. but flooding in his mines and further ventures resulted in his ruin and bankruptcy. 	thomas newcomen, a baptist ironmonger, blacksmith, and locksmith, supplied iron tools to mine workers. he was aware of the problem of flooding of mines and the awkward system of pumps which were used one above the other and were powered by teams of horses. he made a very valuable contribution to power generation by inventing the atmospheric pressure steam engine with piston around . he did this by connecting theory with experiment, through the use of scientific knowledge, especially the royal society's investigation into atmospheric pressure. first cold water was poured on a cylinder in which a piston could move up and down. this caused steam inside the cylinder to cool and condense into water. the vacuum created inside the cylinder under the piston caused atmospheric pressure on top of the piston to push the piston down. the piston was attached by a rod to the end of a beam which end then swung down from a point on a vertical stand to which it was attached. when the beam swung, its other end, which was attached to a rod connected to a pump, rose, thus working the pump. then steam from water heated in a boiler under and communicating with the cylinder was allowed into the cylinder under the piston. this overcame the atmospheric pressure on the piston from above and allowed the piston to rise by a counterweight on the rod over and connecting to the pump. boys opened and closed the steam valve, which let steam into the cylinder from below, and the water valve, which let cold water pour on the cylinder from above. then the boys were replaced by the valves being connected to the swinging beam which caused them to open and close at perfectly regular intervals. a story gives the credit for this improvement to an inventive valve boy who wanted to play with his friends. in , the mining industry used this steam engine to pump water out of mine-shafts which had flooded. these engines were also used to supply water to reservoirs� locks at canals, and drinking water facilities in towns. one such engine developed power equivalent to fifty horses working at one sixth the cost. it was the first automatic machine since the clock. 	then james watt invented the steam engine which used steam as a force acting on the piston. watt made his living making scientific instruments for glasgow university. around , he was fixing one of newcomen's engines belonging to the university, when he saw its inefficiencies, such as the loss of heat when the cylinder was cooled. he saved this heat energy by having the steam condensed in another vessel distinct but connected to the cylinder. this condenser was kept constantly cool by cold water. so the condensed steam was pumped back into the boiler and it circulated continuously, thus obviating the need for constant resupply of water. in order to avoid the necessity of using water to keep the piston air-tight, and also to prevent the air from cooling the cylinder during the descent of the piston, he used the expansion of the steam to push the piston instead of atmospheric pressure. then, in order to expand the use of the steam engine beyond that of a pump, he converted the oscillating motion of the beam into rotary motion. he formed a partnership with john roebuck, who had a two-thirds interest. but when roebuck needed money, he sold his interest to matthew boulton. boulton wanted better power that that of his watermill for his workshops that made metal buttons, watch chains, shoebuckles of engraved steel, ornamental bronzes, vases, chandeliers, tripods, silver and plated wares, and imitation gold and tortoiseshell work. in dry weather, about eight horses were needed to aid in driving the machinery. a steam pump could pump water from the bottom of the watermill to the top to be used again. he had built up this factory of five buildings and six hundred workers, with , pounds derived from his marriage to an heiress. by , the partnership had built a model steam engine with rotary power whose design could be sold. the price of the engine was set as the amount of money saved on fuel costs in the first three years of its operation. this machine was a relatively economical user of energy, capable of performing almost any kind of work. 	about , john wilkinson, the son of a farmer who also oversaw an iron furnace, substituted mineral coal for wood charcoal in the smelting and puddling of iron ore. in , he made it possible to transport coal out of mines on rail wagons drawn by horses. as father of the iron industry, he made iron chairs, vats for breweries and distilleries, and iron pipes of all sizes. with his invention of the first precision boring machine, he provided watt with metal cylinders of perfectly accurate shape, which were necessary for the smooth working of watt's steam engine. in he bought a pumping steam engine from boulton and watt's company for his ironworks. it pumped three times as fast as newcomen's engine. 	watt's steam engine came to be used for power-loom weaving and then for all sorts of manufactures. it would put england ahead of every manufacturing country in the world. millwrights built, installed, and later designed not only steam engines but the machinery that they drove. these men were essential in setting up the first factories. they were the most imaginative and resourceful craftsmen. they knew how to use a turner's, a carpenter's and a blacksmith's tools and had supervised or done smith work, brick-laying or stone-mason's work in erecting and maintaining windmills with their many gears and bearings. there was a good deal of variety in mills, as well as in the structure and workmanship of them, some being worked by horses, some by wind, and others by water. they had some knowledge of arithmetic and practical mechanics. they could draw out a plan and calculate the speed and power of a wheel. although technically in a branch of carpentry, the millwrights learned to work with metal as well. metal was superior to wood not only because of its strength but because wood parts were irregular in motion and wore out rapidly. so iron and brass parts came to replace wood and leather parts. 	in , j. paine got a patent for rolling iron instead of hammering it. the iron bars, being heated in a long hot arch or cavern passed between two large metal rollers, which had certain notches or furrows on their surfaces. 	clockmaker and quaker benjamin huntsman was struck with the difficulty of finding finely tempered steel for the springs of his watches and pendulums of his clocks. he experimented for years to find a homogeneous and flawless metal, and finally, in , invented cast steel, which had high tensile strength and was much harder than ordinary steel. he did this by remelting refined high quality wrought iron bars at very high temperatures in sealed fireclay crucibles, together with small quantities of charcoal and ground glass as reagents. this distributed the carbon evenly in the metal, which hammering could not do. he approached the sheffield cutlers, who finally agreed to try his cast steel for fear of losing their business to some other manufacturers who were approaching huntsman. since huntsman had no patent, he worked at night and employed only men who would keep his secret. his steel was made at night. his factory became prosperous about and the excellence of his steel manufacture was never equaled. steel and wrought iron was scarce and expensive. 	around , iron founder samuel walker, discovered huntsman's secret by appearing at huntsman's factory disguised as a shivering tramp who asked to warm himself by the furnace fire. he feigned sleep while watching the whole process. when he began to make cast steel, his annual output grew from pounds in to , pounds in and he made a fortune. 	silver was plated over copper from . white metal from tin and antimony was used from about . 	the brass industry was beginning to produce brass from copper and zinc that was as good as foreign brass. the secret of plate-glass manufacture came to england in the s. 	in , a corporation was set up for the manufacture of plate glass. it could raise joint-stock because of the great risk and large expense of the undertaking. 	in , chemist william cookworthy was given a fourteen year patent for the discovery of certain clay and stone in england from which he made england's first true porcelain, i.e. that which could sustain the most extreme degree of fire without melting, and also had grain as smooth and lustrous, and the transparency and beauty of color, equal in degree to the best chinese or dresden porcelain. 	the import duties on diamonds, pearls, rubies, emeralds and other precious stones and jewels was dropped to increase the business of cutting and polishing them. 	the world's first chocolate factory was set up in england in . milk was added to chocolate. 	the fanmakers were incorporated in . 	a linen company to sell cambricks [a fine white linen] and lawns [a thin and fine linen] was incorporated in . 	a free market for fish was established in westminster to supplement the free fish market in london to prevent forestalling and monopolizing of the fish industry and to increase the number of fishermen. duties for its maintenance were paid by the fishermen. certain men were given the right to incorporate fisheries of white herring for twenty one years to improve the fisheries and give employment to the poor. they were authorized to sell subscriptions and to build ships provided the fishery employ , in such fishery. there were restrictions on taking fish from rivers during their breeding season. herring fishermen were allowed to land and dry their nets and erect tents and pickle, cure, and reload fish on uncultivated land up to yards beyond the high water mark all any shore, forelands, harbors, and ports, without paying the landholder. later, a bounty of s. per ton was authorized to be given for vessels that were fitted out and used for white herring fishery. 	anyone wishing to be admitted to the levant (turkey) trading company was to be made free of such on paying pounds, so that this trade might be increased. 	in the s the first cooking school was established by mrs. elizabeth raffald, a servant. 	as for health, there were many occupational hazards. these included paralysis by mercury of refiners of silver and gold, paralysis by mercurial fumes of molten lead by plumbers, palsy of glaziers working with melted lead and of watch gilders, lead poisoning of painters, blinding by sawdust of sawyers, and the affects of fumes on pewterers and letter founders. particles of copper were breathed in by copper workers, whose hair and beards then turned green. braziers became deaf. hairdressers, bakers, masons, bricklayers' laborers, coal heavers, chimney sweeps, flax and feather dressers, and workers in leather warehouses suffered pulmonary diseases. chimney sweeps also had warty skin cancer from their bodies being habitually covered with soot and the lethal cancer of the scrotum. working with charcoal fires affected confectioners, chocolate makers, and sail-cloth makers. tanners, catgut makers, and tallow-candle makers became nauseous. heavy work weakened many bodies and caused hernias. bending over work for long hours caused stooped posture and hump backs. 	the association between dirt and disease was just beginning to be made. the principles of infection and hygiene were not well understood. bathing every couple of months was not unusual. there was some theological feeling that cleanliness betokened pride and filthiness humility. most houses had a bathtub that could be placed beside the fire in a bedroom. about % of the population had been getting smallpox, which blinded, maimed or disfigured many. deaths from smallpox were only occasional in the country, but constant in london, where about % of every generation died from it. making death commonplace, especially in the winter months when thick, dirty clothes were worn day and night, were typhus, which was carried by lice; typhoid, which was spread by flies from horse dung; tuberculosis; and influenza. dysentery and diarrhea made death commonplace especially in the summer when flies transmitted bacteria from filth to food and the water was its most foul. there was great meaning in the prayer "now i lay me down to sleep; i pray the lord my soul to keep; if i should die before i wake, i pray the lord my soul to take." thyphus spread easily in hospitals and gaols where vermin could live in the beds made of wood. colds and toothache were also common. venereal disease was not uncommon among the well-to-do in london. condoms were used to deter disease, but were still crude, coarse, uncomfortable, and unreliable. london had almost double the mortality rate of the nation. the number of baptisms in london were about % of its burials. about % of the deaths in london were among children under two, due to infantile diseases fostered by malnutrition, maternal ignorance such as giving babies adult food, ill-health, bad water, dirty food, poor hygiene, and overcrowding. many children died from diptheria, measles, scarlet fever, and smallpox. ten or twelve children with three or four surviving was a common family pattern. many well-to-do in london kept their children in the country for their better health. no matter what the ailment, physicians regularly bled patients and often gave them enemas with wooden funnels. sometimes a blister or irritant was applied to the skin to draw out the evil humors. cupping was used to provide suction to remove pressure from various parts of the body. also used were poultices, ointments, and herbal treatments, notably quinine. opium was given to deaden pain. there were about drugs in use. charms, spells, astrology, and folk remedies still played a major role in medicine. a physician attended surgeries to give advice. physicians could visit apothecary shops once a year and throw away any drugs falling below an arbitrary standard of excellence. in the house of lords decided a jurisdictional contest between the college of physicians and the society of apothecaries. it permitted the apothecaries to direct the remedies as well as to prepare them, although they could only charge for the drugs they provided. the poor sought advice from apothecaries. 	there was progress in health. scurvy virtually disappeared as a cause of death due to the eating of more vegetables. people were cleaner when wearing cotton, which had to be washed. in , free inoculations for smallpox began in england, pioneered by lady mary wortley montague, also a poet and letter writer. she led the way by having herself and her son inoculated. theologicians denounced this practice as a diabolical interference with disease sent by providence for the punishment of sin. sarah wallen mapp was a famous bone-setter. in surgeon william cheselden, whose master was specially licensed to perform the operation of removing stones in the hospital, reduced the death rate for removing stones due to hemorrhage, shock, and infection down to % by his invention of a lateral operation. he also published an anatomy book and treated certain kinds of blindness by forming an opening in the eye to serve as an artificial pupil. in , claudius aymand conducted the first successful appendectomy. 	nutritional deficiency diseases were beginning to be understood. in , james lind, a surgeon in the navy who noted that more men died of scurvy than in battle, published his work on his dietary controlled experiment on seamen showing that oranges, lemons, limes, green food, and onions cured scurvy. he published his methods of prevention and cure of malarial fevers and his method of disinfecting ships with the smoke of wood and gunpowder. in , he discovered that steam from salt water was fresh, and proposed a method of distillation to supply ships with fresh water. in giovanni morgagni from italy opined that disease resulted from a breakdown of organs and tissues that was viewable on autopsy. he wrote an extensive book showing the anatomy of diseases, e.g. affections of pericardium and aorta, (e.g. aneurysm), valve diseases, ulceration, rupture, dilation, and hypertrophy. he associated clinical observation with anatomy of disease. for example, pain on the left upper chest, numbness of the left arm, and difficulty breathing occurring together with exertion were associated with dilation of the aorta and hardening of arteries, which caused delay of blood in the aorta, in the heart, and in the lung vessels. bernoulli showed that the living human body constantly changes so that all its particles are renewed in a certain number of years. stephen hale described the first quantitative estimate of blood pressure and fundamental characteristics of blood circulation. in , frenchman dr. pierre fauchard, the father of dentistry, recommended rubbing one's teeth and gums with a piece of sponge. 	since three out of four babies died shortly after birth, beds in hospitals for pregnant women were established starting in . the next year physicians began to replace midwives. a hospital was established for abandoned foundling children in so they wouldn't die, as they usually did, in the care of parishes or workhouses or be exposed in the streets or left on door steps of the wealthy. it was besieged by women with babies in their arms. in a statute made the principles of the foundling hospital obligatory for all london parish children under six; they were to be sent to nurses outside london who were to be paid at least s. a week by the parish. in , this was extended to all parishes, and nurses who cared for a child well for a year was given a reward of at least s. also, parish children were not allowed to be apprenticed for more than seven years or until age and an apprentice fee of at least pounds, s. was to be paid to the master or mistress by the parish. 	after , there was a steady growth of population due to improved midwifery. william smellie taught scientific midwifery in london from and wrote a "treatise on midwifery" in , which had a clear explanation of the mechanism of labor. at this time there were several maternity hospitals. forceps existed for difficult deliveries. in , dr. cadogan wrote his book: "an essay on the nursing and management of children, which made a great improvement in the care of young children. for instance, it recommended loose clothing, no tight swaddling clothes, and a simple diet. swaddling clothes were used to retain a baby's evacuations but produced discomfort and serious skin conditions. a hospital was founded for venereal diseases in , another as an asylum for the penitent and orphaned girls who might otherwise be inclined to prostitution, and yet another for prostitutes in . coitus interruptus was widely used for birth control. there were also clandestine abortions and intentional neglect of newborns. 	melancholy was widespread. suicides were frequent and drugs were sold for this purpose. in , the mentally ill were classified as curable or incurable. there were many private asylums. a lunatic who was furiously mad and dangerous was required to be safely locked up or chained in his place of settlement. there were frequent and dangerous abuses in madhouses, so in , no one was to keep or confine more than one lunatic without a license granted by the royal college of physicians or else forfeit pounds. a justice of the peace and a physician inspected all madhouses to observe conditions and care of patients there. if refused admittance, the license was forfeited. 	in was the last time a monarch touched a person to cure him of a malady such as scrofula. 	in surgery students began to dissect corpses with their own hands to better learn anatomy. in the company of surgeons was separated out of the company of barber-surgeons. the barbers were proscribed from performing surgery and had to have a separate corporation from the surgeons because of the ignorance and unskillfulness of barbers healing wounds, blows, and hurts e.g. by blood letting and drawing of teeth. there was a surgeon's hall, officers chosen by the surgeons, and bylaws. the surgeons were required to examine candidates for the position of surgeon in the king's army and navy. they were exempted from parish, ward, and leet offices, and juries. in , a statute provided that the corpses of murderers were to be sent to the surgeon's hall to be anatomized, for the purpose of deterring murders. the penalty for rescuing the corpse of a murderer was to suffer death. 	the first dispensary for the poor was established in to give free medicine and treatment to the infant poor, and then to the infants of the industrious poor. 	the progress of science was seen to threaten the authority of the church. there was a general belief in god, but not much attention to jesus. feared to come were free thought, rationalism, and atheism. there was still a big gap between local parsons and bishops, who were educated, well-off, and related to the aristocracy. on the whole, preachers talked about morality and christian belief. they stressed good works and benevolence. but many protestant clergy were more concerned with their own livings than with their parishioners. they were indolent and did not set a good example of moral living. 	from , freemasonry spread and swiftly provided a spiritual haven for those who believed in god and desired ritual and mysticism. 	about , john wesley, the son of an anglican clergyman, became a religious leader for mining and industrial laborers, who were crowded into the slums of industrializing cities, and largely ignored by the church of england. he had been led to this by a profound religious experience. he led an evangelical revival with a promise of individual salvation. he lead an aesthetic life, eating bread, and sleeping on boards. the person to be saved from the horrors of eternal damnation in hell was to discipline himself to regular prayer, self-criticism, and hard work and to forsake worldly pleasures such as drinking, overeating, and even frivolous talk. this methodical regularity of living led to the movement being called methodist. wesley believed in witchcraft and magic. he opined that bodily diseases and insanity could be caused by devils and that some dreams are caused by occult powers of evil. the methodists engaged increasingly in philanthropic activities. they gave to the poor, and visited the sick and the imprisoned. wesley preached in the open air where all who wanted to attend could attend and also wear whatever clothes they had. large crowds of poor people gathered for these meetings. crowds of poor people were generally feared because of their mob potential. these methodist meetings were stormed as were quaker meetings, with shouts of "the church in danger". the methodists' homes were invaded and their belongings destroyed or taken or their persons beaten with tacit permission of authorities. some justices of the peace drafted preachers into the army or navy as vagabonds. eventually, however, the methodist revival imbued energy and piety into the lethargic clergy of the established church. a new moral enthusiasm and philanthropic energy grabbed the nation. prisons were reformed, penal laws made more wise, slave trade abolished, and popular education given momentum. in the established church, charity gained precedence over theology and comfort over self-examination and guilt. evangelist george whitfield preached calvinism and it split off from methodism. then calvinism went into full decline. presbyterianism collapsed into unitarianism and a general tendency towards deism developed. 	church sanctuary was abolished for those accused of civil offenses. 	there was much travel by scheduled coaches, which usually carried several passengers and were drawn by four horses. regular service of public vehicles to and from london went four miles an hour; it took two days to go from london to oxford. it was not unusual for a coach to bog down or overturn. sometimes it had to detour around an impassable stretch of road or borrow a couple of oxen from a nearby farm to get out of a quagmire. men and horses drowned in some of the potholes. robbery was endemic and some of the roads were so unsafe from highwaymen that bands of armed horsemen were hired to accompany the coaches. it was not unusual to come across gibbets for hanging at crossroads. in london inns at coach stops, there were casual workers who were associated with gangs of thieves specializing in passengers' goods. these workers would inform their associate thieves of specific goods that had been loaded onto certain coaches, which were then robbed selectively. traveling merchants preferred packhorses to carts because they could cross overland or through watercourses more easily. these pack horses traveled in regular caravans in single file. the leader had a bell around his neck to warn, from a distance, riders or carts coming in the opposite direction. carts traveled about two miles an hour. in the trustee system superseded administration by the justices of the peace of the turnpike system, including tolls and toll booths. the toll booths were frequently attacked by riotous mobs. so anyone pulling down or destroying turnpike gates at which tolls were to be paid went to prison or was put to hard labor in a house of correction for three months without bail. he was also whipped in the market place between : and : . if he offended a second time, he was transported for seven years. later the penalty of prison up to three years was added as an alternative. the hundred had to pay the damages up to pounds. the penalty for threatening the toll collector or forcibly passing through was pounds for the first offense, and pounds for the second offense with imprisonment for one year for those who couldn't pay. 	by , about miles could be made in a day. the turnpike trusts took over most of london's major highways during the s. there was no travel on sundays until . 	in , shocked by the difficulty caused by bad roads in concentrating the royal army to stop the scottish invasion, the king began systematically to improve all the roads. there was much road and highway widening and repair, and also river bank and pier repair, going on all over the country. marsh lands were drained. harbors were deepened. there were numerous statutes trying to adjust the needs of travel with the condition of the roads. for instance, there had to be a pole between wheel horses or double shafts. carriages, wagons, or carts drawn by more horses, oxen, or animals, or with very heavy loads, or with wheels bound with iron tires were observed to cause more damage, so they were restricted or had to pay higher tolls. then broad and smooth iron tires were observed to not cause the amount of damage as did narrow or irregular iron tires and their use was encouraged. from , weighing machines were kept at toll gates. by , turnpike roads had to be at least feet wide, and hedges and fences thereon had to be taken down by their owners. cartways to markets had to be at least feet wide, and horseways (later ) feet wide. there were ditches, drains, and gutters to carry off water. names and abodes of owners were to be put on carriages, wagons, and carts or forfeit - pounds, except for carriages or coaches of a nobleman or gentleman for his private use or those drawn by only one horse or two oxen, or those with wide wheels and a light load. there were town name signs, direction posts, and milestones. in , the surveyors and the commissioners of turnpikes were given authority to requisition local men, carts and draught animals for compulsory labor, or money instead, in maintaining the roads and making new ditches and drains. they could take any local sand, gravel, chalk, or stone from waste or common land or, if not needed by and satisfaction was made to the owner, from enclosed land. the surveyor was to be chosen locally for a year and could be given an allowance. new roads required the consent of the landowners and a negotiated price. 	a driver of a carriage, wagon, or cart on the public highway who by negligence or misbehavior caused any hurt or damage to a person or any other carriage or hindered free passage of any other carriage was to forfeit up to s. anyone leaving an empty cart or other obstruction on a public highway was to forfeit up to s. any cart, wagon, or carriage driven without a person on foot or on horseback leading it had a forfeiture up to s. any driver of an empty cart, wagon, or carriage who refused or neglected to make way for any coach or loaded cart, wagon, or carriage was to forfeit up to . any offender could be apprehended without warrant by anyone who saw his offense, and who was then to deliver him to a constable or other peace officer. 	by , the mail service was well-regulated. letter rates within miles of london were d. per piece of paper, then d. per ounce. within miles of new york city in america there were d. per piece of paper, then s. d. per ounce. letters were still carried by post horses. from london to new york, they were s. per piece of paper for the first three pieces, then s. per ounce. in , this rate was extended to all colonial ports. 	in , canals began to be constructed linking the main rivers. the barges were hauled by horses or men from the land near the river's edge. now goods of many inland towns cheapened and reached a national instead of just a local market. in an almost illiterate man called james brindley cut the first real canal at worsley for the duke of bridgewater, who owned the coal deposits there. he kept the line of the canal at one level to avoid having to make locks. it crossed one river as a forty foot high aqueduct. he refused to use the beds of small rivers, whose sluggish flow gave no adequate security against silting. coal at the destination point of manchester fell to half its former price. after wedgwood headed a campaign to persuade parliament to construct a certain canal, he bought adjacent land on which he built his great factory. 	in , the maximum interest rate that could be charged was reduced to % for the advancement of trade and improvement of lands because that rate was the norm in foreign lands. thus the maximum interest rate fell from to to and then to %. when issac newton was master of the mint, he noted that too restricted a currency caused a high interest rate to prevail, which was bad for commerce and the plans to set the poor to work, but that too large a quantity of money in circulation caused interest rates to fall, which encouraged luxury imports and the export of bullion. 	the bank of england provided a safer deposit and lower interest than goldsmiths or scriveners. it also issued notes for and (since ), and pounds. outside retail trade and wages payments, business was conducted on a credit basis with a paper promise to pay at some future date. check use was still formal and rare. tradesmen typically authorized their apprentices to "write off or draw" from their accounts, bringing their bank books. depositors authorized other people such as certain servants, relatives, cashiers, or company secretaries to make use of their accounts. after , the bank dividend was about % a year. 	promissory notes were assignable and endorsable and the holder could recover against the signer or any endorser as was the case with bills of exchange. in , no more promissory or other notes, bills of exchange, draughts, or undertakings in writing and being negotiable or transferable could be made for under s., because it was hard for the poorer sort of manufacturer, artificer, laborer and others to use them without being subject to great extortion and abuse. cash was to be used instead. 	by , government finances had become so chaotic that the chancellor of the exchequer sought to re-establish public credit by means of a chartered commercial company, the shares of which were offered in substitution for government stock. this south sea company was established in with a monopoly to trade in south america. the prospects of huge profits sent the share prices soaring. there was also an increase in the money supply. these factors led to a speculation bubble in in this stock. also, many stock-jobbers promoted companies of every description, such as one to extract gold from seawater. there was an insurance boom with about seventy insurance companies in existence, many virtually gambling in life contingencies. there was speculation in insurance for all types of occurrences, such as housebreaking, highway robbery, death by gin-drinking, and horses becoming disabled. the total capital invested in all these enterprises rose to over five times the cash resources of all europe. when the bubble burst, pound south sea stock had gone up to pounds and back down again to . since the government had in effect bought this stock at a low price and paid off its debt with this stock at a high price, this bubble relieved the government of much of its massive debt. it also redistributed wealth. after the bubble burst, investors took refuge in investing in - % government fixed-interest securities. a result of this bubble burst was the chartering of two corporations for marine insurance and prohibition of such by any partnership or firm. private persons could continue to write policies, and they chose lloyd's coffeehouse as their headquarters; it came to dominate the world of marine insurance after the two chartered companies came to concentrate on fire and life insurance. lloyd's list became the foundation for a new newspaper. there were specialty boxes at lloyd's such as on america or the baltic. many ships were reported captured by enemies or pirates, but underwriting insurance was a lucrative business for many. 	in the gold guinea was assigned a value of s. in , the gold standard was introduced. in , clipped and deficient gold coin was called in to be exchanged for new coin. 	local taxes were collected for the church, the poor, county courts of justice, borough administration, and highways. national taxes included the income, customs, and excise taxes. when the government tried to levy excise taxes on wine, tobacco, and then on cider, there was a public protest with mobs demonstrating against the power given to excise inspectors to search in people's homes. these excise taxes were no longer levied. 	duties were placed on items for encouraging industries within the country and to pay the expenses of government. there were more and higher duties to pay for war. at various times there were duties on hides, skins, seal skins, gilt and silver wire, malt, mum [strong beer made from malted wheat], cider, perry, spices, tea, coffee, cocoa nuts, chocolate, cocoa paste, snuff, chinaware, drugs, calicoes, herrings, apples, oysters, raw italian and chinese silk, gum arabic, gum senega, tallow, hogs-lard, grease, beaver skins and wool, imported brandy, raisins, coals and coal dust, coaches for one's own use or for hire, except licensed hackney coaches; silver plate owned by persons, corporations, and bodies politic; leases, bonds, and other deeds; licenses for retailing wine, beer, and ale; % of salaries, fees, and perquisites from office and employments including royal pensions and gratuities over pounds. when the price of wheat was high, as in , when it was s. per bushel, wheat products could not be exported. at other times, they could not be imported. duties on imported wheat, barley, rye, oats, beans, rice, indian corn were also dropped. the prohibition of importing salted beef, pork, bacon, and butter was dropped. in , no live cattle, pigs, mutton, pork, beef, either fresh or salted could be exported or forfeit pounds for every such animal or s. per pound of such meat. in , peas, beans, bacon, hams, and cheese could be imported duty free, and in labrador codfish. in , raw goat skins could be imported duty-free to improve the domestic manufacture of red, green, and blue leather. 	in , there were given costs above which various commodities could not be exported: wheat at s. per quarter, rye, peas, or beans at s., barley and beer at s., oats at s. or else forfeit the goods, s. per bushel and the ship or boat in which laden. (there are bushes in a quarter.) 	a window tax replaced the hearth tax. these duties were s. on dwelling houses, increased by d. per window for houses with - windows, and increased by d. per window for houses with - windows, and increased by s. per window for houses with or more windows, per year to be paid by the occupant. these were increased three more times, until the dwelling house duty was s. and the duty for or more windows was s. another duty for war was that on imported starch, certain imported clothes, cards, dice, soap, vellum, parchment, and paper made in the realm ( d.- s. d. per ream depending on quality) or imported ( - s. per ream). for pamphlets and newspapers made in the realm there was a duty of d. per sheet and d. for every advertisement. when the duty was paid, the paper was stamped. the penalty for nonpayment was pounds for sellers and pounds for those writing or printing on the paper. later, there was a penalty of imprisonment in a house of correction up to three months for sellers or hawkers of pamphlets or newspapers, and the apprehender received a reward of s. a parson marrying a couple without publishing banns or license could forfeit pounds. 	not paying duties was punishable by various forfeitures of money. officers for duties could search warehouses on suspicion of concealment of coffee, tea, chocolate, or cocoa beans with an intent to avoid duties after making an oath before a duty commissioner or justice of the peace setting forth the grounds of such suspicion. a special warrant could be issued authorizing the officer to seize such goods. 	wars were funded not only by some duties, but by lotteries and short-term funding purchased at % yearly interest from the bank of england and by long-term funding by the sale of annuities. 	county militias could be raised and called out to march together in order to be better prepared to suppress insurrections or invasions. their horsemen were to be provided with broad sword, a case of pistols with inch barrels, a carabine with belt and bucket, a saddle, and a bit and bridle. each foot soldier was to be provided with a bayonet, a cartouch-box, and a sword. in the militia act of , there were quotas for each parish, to be chosen by lot from lists of men - years old. after militia service for three years, one could not be called again until by rotation, and, if married, he was allowed to practice any trade in which he was able in any town or place. while he was in the militia, his parish had to pay an allowance to his family, if distressed, the usual price of an agricultural laborer, according to the number and ages of the children. quakers could provide a substitute or pay money to defray expenses of a substitute for three years. exempt were peers, commissioned officers in royal army or royal castle, other military personnel, members of either university, clergymen, teachers of any separate congregation, constables and peace officers, and watermen of the thames river. 	this militia act was due to an invasion scare in because great britain then had no allies on the continent. the old strategy of maintaining a small army of , men and relying on volunteers had really depended on england's allies to tie down france's land forces. the militia act of was designed to reassure squires they would not be used as adjuncts to the army. only those with much property could be officers. enlistees could still carry on their trades and jobs. costs were to be from general taxation rather than by locality. but it was almost impossible to get officers and there were many riots when parish authorities tried to draw up lists of those liable to serve. in the navy prevented french invasion. 	able-bodied men without a calling, employment, or visible means of maintenance or livelihood could be searched for and conscripted into the army. volunteers who enlisted were paid s. and were not taken out of her majesty's service by any process other than for some criminal matter. king george ii was the last king to lead his troops into battle. later, parishes were given s. for every soldier they summoned. also, persons who had a vote for member of parliament were exempted. 	whipping was the usual punishment for offenses. a soldier who deserted or joined in any mutiny or sedition in the royal army within the realm was to suffer death or any other punishment determined by court martial. in , a soldier (later, or a marine) who slept at his post, left his post before being relieved, communicated with any rebel or enemy, struck or disobeyed any superior officer could suffer death, including those soldiers in america. 	during war, chief officers of towns quartered and billeted royal army officers and soldiers in inns, livery stables, alehouses, and victualing houses for d. a day, but not in any private house without consent of the owner. from to , the army regiments were split up and scattered among the ale-houses of small towns for maintenance; this was to disperse the soldiers. it was easier to count them, thereby keeping a check on their number, which might be exaggerated if they were in large groups in barracks. the towns protested having to maintain soldiers and town magistrates imposed severe penalties for small offenses by soldiers. their drunkenness and violence were not tolerated as they were for ordinary people. their officers not being with them, the soldiers retaliated with troublesomeness. as of english troops could be quartered in unoccupied houses or barns and supplied with necessities such as bedding, firewood, candles, vinegar, salt, cooking utensils, and beer or cider. the royal hospital gave pensions to maimed and worn out soldiers treated there. 	sailors had more status than soldiers because they had regular work as seamen in times of peace and they did not remind the people of the idea of a standing army, which they had hated especially since cromwell. 	justices of the peace, mayors, and other officers could bind boys as apprentices to sea service if they were at least ten and their parents were chargeable to the parish or begged for alms. this indenture to the masters or owners of ships lasted until the boy reached . the boy's parish paid s. for clothing and bedding for such sea service. no such apprentice could be impressed into the navy until at least years of age. master and owners of ships that carried - tuns had to take one such apprentice and one more boy for the next tuns, and one more boy for every tuns over tuns, or else forfeit pounds to the boy's parish. boys voluntarily binding themselves to such sea service were exempt from impressment for the next three years. this was to increase the number of able and experience mariners and seamen for the navy and for the trade and commerce of the nation. 	no masters or commanders of merchant ships were to proceed on a voyage beyond the seas without first agreeing in writing on wages with the seamen, except for apprentices. such agreement had to be signed by the seamen. offenders were to forfeit pounds per seaman, which sum went to the use of greenwich hospital. any seaman leaving the ship before being discharged in writing was to forfeit one month's pay because too many left the ship before it was unladen. 	there were some ships of tons. the steering wheel had been introduced because a sudden heavy sea could wrest a tiller from the hands of a helmsman. triangular head-sails with jib boom and stay-sails on stays between masts were in use so that ships could sail closer into the wind. the length of ships was still determined by the same length of trees that could be grown. sailing ships were still vulnerable to a lee shore. latitude was easy to determine using the reflecting octant invented by john hadley in , and a sextant invented in , with mirrors and a small telescope to measure the angle between a celestial body such as the sun or north star and the horizon. but longitude could not be determined with any degree of accuracy. one method relied on accurate predictions of the future position of the moon as observed from a fixed reference point, such as greenwich. by precisely observing the local time of the moon's occultation of a known star at a particular place, and looking up in a table the predicted time of the event at greenwich, one could approximate the time difference of the place from greenwich. there were so many shipwrecks on this account that the government offered a reward to anyone who found a way to measure longitude accurately. in carpenter and clockmaker john harrison made the chronometer to do this with an accuracy of / seconds per month, and received , pounds. he was promised , pounds to explain the principle of his timekeeper and build three more. the chronometer kept time with extreme accuracy and was mounted to remove the effect of the ship's motion. to find a ship's position, a navigator noted the time and measured the positions of certain stars. he compared these positions with tables that showed the stars' positions at greenwich mean time, and then calculated the ship's position. 	officer positions were no longer bought, but were subject to examination for a minimum of knowledge, especially in navigation. in the naval academy was established. boys entered at age to and spent two or three years there. 	only about % of the crew of navy ships were volunteers. many were gaolbirds, having chosen the navy over more gaol time for debt. press gangs seized men in the port towns and from ships coming into harbor. >from % to % of the crew were foreigners, many of these pressed men. about , the marine society was founded for training and placing poor boys in work in naval and merchant ships. this not only supplied men and boys for the navy, but saved boys from a life of vagrancy and crime. these boys usually became reliable and obedient sailors. 	the life of a sailor was a hard one, requiring much strength. sailors did not know how to swim, so falling overboard usually meant death. flogging was the usual punishment in the navy, even for small offenses. the amount of flogging due for each offense rose over time. if flogging were fatal, there would be an inquiry and occasionally punishment. a sailor's meals were usually hard bread invested with weevils and maggots, dried or salted meat or fish, and small quantities of oatmeal, butter, and cheese. many sailors had scurvy or other deficiency diseases. experiments with lime and lemon juice as remedies for scurvy were made around , but were not used in the navy until about . many more sailors died from these diseases than from battle. rum and water was a daily ration introduced in . the ordinary sailor was paid about one pound a month, a rate established in s which became outdated. this was not in cash, but in a ticket which entitled him to payment in full if he presented it at the pay office in london, but was subject to swinging deductions if he tried to cash it in another port. 	prize money from conquered ships was substantial. to encourage seamen to enter the navy, parliament provided that the prizes be divided among flag officers, commanders, other officers, seamen, marines, and soldiers on board every ship of war, including private ships commissioned by the admiral, as directed by the king, or as agreed with the owner of a private ship. it included an enemy's ships, and goods and arms on the ships or in fortresses on the land. there was also bounty money for enemy ships taken or destroyed. for retaking or salvaging english goods taken by the enemy, / th their value was paid. privateers colluding with others to fraudulently take their merchant ships forfeited their ships, with / rd going to the person who made the discovery and prosecuted. 	later, any able seaman volunteering for the navy was to receive pounds bounty. any seaman volunteering for the navy was to receive a bounty of pounds. if a navy seaman was killed or drowned, his widow was to receive a year's pay as bounty. no seaman in a merchant ship was to receive more than s. per month because of war at that time. 	still later, anyone who ran goods or avoided customs was excused and indemnified if he enlisted in the navy as a common sailor for three years. 	those under or over were made exempt from impressment into the king's service. the time of service was limited to five years if the serviceman so demanded. worn out and decrepit seamen no longer being treated at the royal hospital for seamen at greenwich received a pension as determined by the hospital. 	in war, the navy favored blockading tactics over attack by fireships, which grew obsolete. in peace, when not used in convoys to remote lands, many ships of war were used as cruisers to guard the coast, to trade, and to accompany merchant ships going out and returning home. about , marine forces of the navy were raised and quartered on shore. 	no war ship could carry goods except gold, silver, and jewels and except the goods of a ship in danger of shipwreck or already shipwrecked. 	the king was authorized to prohibit the export of gunpowder, saltpeter, ammunition, and arms. 	when a ship had been forced on shore or stranded on the coast, it had been the practice for people to plunder it and to demand high payment for salvaging its goods. so a statute required that salvage only be done by sheriff, mayors, and other officials. a person who defaced the marks on goods or hindered the saving of the ship had to pay double satisfaction to the person aggrieved and spend months at hard labor in a house of correction. if a person unduly carried off goods, he forfeited treble damages. if he made a hole in the ship or stole the pump from the ship, he was guilty of felony without benefit of clergy. 	the owner of the island of skerries was allowed to erect a lighthouse and charge passing ships other than navy ships d. per tun. 	only pilots examined and admitted into the society of pilots and, if no such pilot was readily available, a ship's own owner, master, or mate could pilot ships up the thames river, or else forfeit pounds for the first offense, pounds for the second, and pounds thereafter. any pilot losing a ship could no longer be a pilot. there had to be at least qualified pilots. the prices of piloting were pounds s. for ships drawing feet of water, and s. more for each additional foot drawn up to pounds s. for ships drawing feet of water. 	to preserve navigation, ships were not to throw any ballast, filth, rubbish, gravel, earth, stone, or filth into rivers or ports where the tide or water flowed or ran or else forfeit s.- pounds. ships on the thames river could take as ballast to stabilize a ship without cargo: dung, compost, earth, or soil from laystalls in london. there was a toll on ships entering the port of london to pay for repairs to its walls. 	many persons insuring ships for large premiums became bankrupt, thus ruining or impoverishing many merchants and traders. so the king was authorized to grant charters to two distinct corporations for the insurance of ships, goods, and merchandise or going to sea or for lending money upon bottomry [borrowing money and and pledging the ship as security]. each corporation had to pay , pounds to the exchequer and to have sufficient ready money to pay for losses insured by them. they were to raise capital stock and could make calls of money from their members in proportion to their stocks for any further money required. 	any owner, master, or mariner who cast away, burned, or otherwise destroyed a ship to the prejudice of underwriters of policies of insurance or of any merchants whose goods have been loaded on the ship was to suffer death. 	the owners of ships were not liable for losses by reason of theft without their knowledge by the master or mariners of goods beyond the value of the ship. this was to prevent the discouragement of owning ships. 	the insurance of merchant ships must give salvage rights [rights to take what may be left of the ships insured after paying the insurance on them] to the insurer. a lender on bottomry had benefit of salvage. no insurance could be for a greater amount than the value of one's interest in the ship or in the goods on board. 	no waterman carrying passengers or goods for hire e.g. by wherryboat, tiltboat, or rowbarge, on the thames river could take an apprentice unless he was a housekeeper or had some known place of abode where he could keep such apprentice or else forfeit ten pounds, and if he couldn't pay, do hard labor at the house of correction for - days. also he could not keep the apprentice bound to him. no apprentice could be entrusted with a vessel until he was if a waterman's son and if was he the son of a landman, and he had at least two years' experience. none but freemen, i.e. one having served an apprenticeship of seven years, could row or work any vessel for hire or be subject to the same punishment. this was to avoid the mischiefs which happen by entrusting apprentices too weak, unable, and unskillful in the work, with the care of goods and lives of passengers. later amendment required that apprentices be age to and that there be no more than passengers, with the penalty of transportation if there were over and one drowned. 	no boat on the thames river could be used for selling liquors, tobacco, fruit, or gingerbread to seamen and laborers because such had led to theft of ropes, cables, goods, and stores from the ships. excepted were boats registered at the guilds of trinity and of st. clement, but they had to show their owner's name and could only operate in daylight hours. the penalty was forfeiture of the boat. 	all ships coming from places infected with the plague had to be quarantined and any person leaving a quarantined ship had to return and later forfeit pounds, of which / could go to the informer, the rest to the poor. this was later raised to pounds and six months in prison, and if the person escaped, he was to suffer death. also later, a master of a ship coming from infected places or having infected people on board was guilty of felony and forfeited pounds. if he did not take his vessel to the quarantine area on notice, he forfeited a further pounds (later pounds) and the ship, which could then be burned. the king was authorized to prohibit commerce for one year with any country infected by the plague and to forbid any persons of the realm from going to an infected place. 	by , there was a clear distinction between a king's private income and the crown's public revenue. from , the king's treasurer as a matter of routine submitted annual budgets to parliament. he was usually also the leader of the house of commons and the chancellor of the exchequer. 	proclamations by the crown were more restricted to colonial and foreign affairs, to executive orders, and to instructions to officials. the high offices included the chancellor, keeper, president of the council, privy seal, treasurer, and two secretaries of state, who were in charge of all foreign and domestic matters other than taxation, one for the north and one for the south. with thomas more, the chancellor had become more of a judge and less of a statesman. other offices were: paymaster general, secretary of war, and treasurer of the navy. starting with the monarch, government positions were given by patronage to friends and relatives, or if none, to the highest bidder. these offices were usually milked for fees and employed deputies, clerks, and scribes who worked for long hours at very modest wages. most people believed that the offices of power and influence in the realm belonged to the nobility and gentry as indubitably as the throne belonged to the king. assaulting, wounding, striking, or trying to kill a member of the privy council engaged in his duties was punishable by death without benefit of clergy. civil and military commissions, patents, grants of any office or employment, including justice of assize, justice of the peace, court writs, court proceedings continued in force for six months after a king's death, unless superceded in the meantime. 	the king's ministers were those members of his privy council who carried out the work of government. by distributing patronage, the ministers acquired the influence to become leading members of the house of commons or the house of lords. they made policy, secured the king's consent, and then put through the necessary legislation. the king was to act only through his ministers and all public business was to be formally done in privy council with all its decisions signed by its members. the king gradually lost power. the last royal veto of a parliamentary bill was in . by , the privy council ceased making decisions of policy. instead a cabinet not identified with any particular party was chosen by the queen, who presided over their meetings, which were held every sunday. it dealt with parliament. in , the number of peers in the house of lords was fixed, so that the crown could create no more. about , robert walpole, son of a country squire, who came to be first minister of the crown and the leader of the whigs, organized the cabinet so that it was of one view. he led it for twenty years and thus became the first prime minister. he was brilliant at finance and lessened taxation. he restored trust in the government after the south sea bubble scandal. he was successful in preserving the peace with other nations and providing stability in england that led to prosperity. the whigs opposed a standing army and over-reaching influence of the crown. they espoused the liberty of individual subjects. their slogan was "liberty and property". they generally favored foreign wars. 	members of the parliament felt responsible for the good of the whole country instead of accounting to their electors, but self- interest also played a part. leading commercial magnates of the realm sought to be members of parliament or governors of the bank of england so they could take up government loans at advantageous rates, snap up contracts to supply government departments at exorbitant prices, and play an important part in deciding what duties should be charged on what goods. about % of the population could vote. voting was open, rather than by secret ballot. seats in parliament could normally be bought either by coming to an arrangement with some landowner who had the right to nominate to a closed seat or by buying enough votes in constituencies where the electorate was larger and the contest more open. factory owners and leading landowners sat together on committees drawing up plans for public works such as canal building, obtained the necessary permits from public authorities and organized the whole enterprise. in , parliament was allowed to last for seven years unless sooner dissolved by the king because of the expense and tumult of elections, which frequently occasioned riots, and sometimes battles in which men were killed and prisoners taken on both sides. politics had become a career. members of parliament could not be arrested while parliament was in session. 	as of , electees to the commons had to have pounds annual income for knights or pounds annually for burgesses. this did not include the eldest son or heir apparent of any peer or lord of parliament or any person with the above qualifications. the universities were exempted. 	as of , a person electing a member of the commons had to swear or affirm that he had not received any money, office, employment, or reward or promise of such for his vote. if he swore falsely, it was perjury and he was to forfeit pounds and his right to vote. later, voters for member of parliament had to have residence for a year. still later, voters were required to have been freemen of the city or town for one year or else forfeit pounds, except if entitled to freedom by birth, marriage, or servitude according to the custom of such city or town. voters were still required to have a freehold of land of s. a year income, but holders of estates by copy of court roll were specifically precluded from voting or else forfeit pounds. 	in , since unauthorized persons had intruded into assemblies of citizens of london and presumed to vote therein, the presiding officer appointed clerks to take the poll and oath required for elections for parliament, mayor, sheriffs, chamberlains, bridgemasters, and auditors of chamberlains. the oath was that one was a freeman of london, a liveryman of a certain named company, had been so for months, and had named his place of abode. the oath for alderman or common council elections was that the voter was a freeman of london and a householder in a named ward who had paid scot of at least a total of s. and bore lot. a list of the voters and of persons disallowed was given to candidates by the presiding officer. 	soldiers could not be quartered within miles of a place of election so that the election was kept free. 	voters in public corporations must have held their stock for six months before voting them to discourage splitting stock and making temporary conveyances thereof to give certain people more of a vote, e.g. in declaring dividends and choosing directors. 	ambassadors were made immune from arrest, prosecution and imprisonment to preserve their rights and privileges and protection by the queen and the law of nations. 	the supporters of the bill of rights society was founded and paid agents to give speeches throughout the country and used the press for its goals. 	james burgh demanded universal suffrage in his book: "political disquisitions". 	in there was union with scotland, in which their parliaments were combined into one. the country was known as great britain. the last scottish rebellion resulted in attainder of its leaders for levying war against the king. in , they were given the chance to surrender by a certain date, and receive a pardon on condition of transportation. in , anyone impeached by the commons of high treason whereby there could be corruption of the blood or for misprison of such treason could make his defense by up to two counsel learned in the law, who were assigned for that purpose on the application of the person impeached. in , counsel could interrogate witnesses in such cases where testimony of witnesses were not reduced to writing. 	there was a steady flow of emigrants to the american colonies, including transported convicts and indentured servants. delaware became a colony in . in , the king bought carolina from its seven proprietors for , pounds apiece. person having estates, rights, titles, or interest there, except officers, were allowed by parliament to sue the king with the court establishing the value to be paid, but no more than at a rate of , pounds per / of the property. georgia was chartered in on request of james oglethorpe, who became its first governor, as a refuge for debtors and the poor and needy. it established the episcopal church by law. in carolina and georgia were allowed to sell rice directly to certain lands instead of to england only. later, sugar was allowed to be carried directly from america to european ports in english ships without first touching some english port. foreigners who had lived in the american colonies for seven years, and later foreigners who served two years in the royal army in america as soldiers or as engineers, were allowed to become citizens of great britain on taking oaths of loyalty and protestantism. this included quakers and jews. the jews could omit the phrase "upon the true faith of a christian." 	in , indentured servants in america were allowed to volunteer as soldiers in the british army serving in america. if his proprietor objected, the servant was to be restored to him or reasonable compensation given in proportion to the original purchase price of his service and the time of his service remaining. 	there was much competition among countries for colonies. quebec and then montreal in in canada were captured from the french. about james cook discovered new zealand and australia; his maps greatly helped future voyages. the english east india company took over india as its mogul empire broke up. 	manufacturing in the american colonies that would compete with british industry was suppressed by great britain. there were increasing duties on goods imported into the colonies and restrictions on exports. in , parliament imposed duties on foreign imports going to america via britain: to wit, sugar, indigo, coffee, certain wines, wrought silks, calicoes, and cambrick linen. foreign vessels at anchor or hovering on colonial coasts and not departing within hours were made liable to be forfeited with their goods. uncustomed goods into or prohibited goods into or out of the colonies seized by customs officials on the ship or on land and any boats and cattle used to transport them occasioned a forfeiture of treble value, of which / went to the king, / went to the colonial governor, and / went to the suer. any officer making a collusive seizure or other fraud was to forfeit pounds and his office. in , there was imposed a duty on papers in the colonies to defray expenses of their defense by the british military. the duty on every skin, piece of vellum [calf skin] or parchment, and sheet of paper used in any law court was d.- pounds. there were also duties on counselor or solicitor appointments of pounds per sheet. duties extended to licenses for retailing spirituous liquors and wines, bonds for payment of money, warrants for surveying or setting out of any lands, grants and deeds of land, appointments to certain civil public offices, indentures, leases, conveyances, bills of sale, grants and certificates under public seal, insurance policies, mortgages, passports, pamphlets, newspapers (about s. per sheet), advertisements in papers ( s. each), cards, and dice. the papers taxed were to carry a stamp showing that the duties on them had been paid. parliament thought the tax to be fair because it fell on the colonies in proportion to their wealth. but the colonists saw this tax as improper because it was a departure from the nature of past duties in that it was an "internal tax". all of the original thirteen american colonies had adopted magna carta principles directly or indirectly into their law. the stamp duties seemed to the colonists to violate these principles of liberty. patrick henry asserted that only virginia could impose taxes in virginia. schoolmaster and lawyer john adams in massachusetts asserted that no freeman should be subject to any tax to which he had not assented. in theory, colonists had the same rights as englishmen per their charters, but in fact, they were not represented in parliament and englishmen in parliament made the laws which affected the colonists. they could not be members of the house of lords because they did not have property in england. there were demonstrations and intimidation of stamp agents by the sons of liberty. merchants agreed to buy no more goods from england. the stamp duty was repealed the same year it had been enacted because it had been "attended with many inconveniences and may be productive of consequences greatly detrimental to the commercial interests of these kingdoms". 	to counter the wide-scale running of goods to avoid the customs tax, the customs office was reorganized in to have commissions resident in the colonies and courts of admiralty established there to expedite cases of smuggling. this angered the colonists, especially boston. boston smuggling had become a common and respectable business. it was the port of entry for molasses from the west indies from which new england rum was made and exported. the entire molasses trade that was essential to the new england economy had been built upon massive customs evasions; royal customs officials had participated in this by taking only token customs for the sake of appearance in london and thereby had become rich. 	in parliament imposed a duty of d. per pound weight on tea and duties on reams of paper, glass, and lead into the colonies. these import duties were presented as external rather than internal taxes to counter the rationale the colonies gave against the stamp tax. but these items were of common use and their duties raised the cost of living. the king's customs officials were authorized to enter any house, warehouse, shop, or cellar to search for and seize prohibited or uncustomed goods by a general writ of assistance. 	these writs of assistance had been authorized before and had angered bostonians because they had been issued without probable cause. in paxton's case of , the massachusetts superior court had declared legal the issuance of general writs of assistance to customs officers to search any house for specific goods for which customs had not been paid. the authority for this was based on the parliamentary statutes of and authorizing warrants to be given to any person to enter, with the assistance of a public official any house where contraband goods were suspected to be concealed, to search for and seize those goods, using force if necessary. they were called "writs of assistance" because the bearer could command the assistance of a local public official in making entry and seizure. a "general" writ of assistance differed from a "special" writ of assistance in that the latter was issued on a one-time basis. the general writ of assistance in boston was good for six months after the death of the issuing sovereign. authority relied on for such writs was a statute giving customs officers in the colonies the same powers as those in england, a act by the massachusetts provincial legislature giving the superior court of massachusetts the same such power as that of the exchequer, and the massachusetts' governor's direction about to the massachusetts superior court of judicature to perform the function of issuing such warrants. the massachusetts court issued them in the nature of the writs of assistance issued from the exchequer court in england, but had issued them routinely instead of requiring the showing of probable cause based on sworn information that the exchequer court required. few judges in the other american colonies granted the writ. 	seditious libel trials in england and the colonies were followed closely and their defendants broadly supported. john wilkes, a member of the house of commons, published a criticism of a new minister in . he called king george's speech on a treaty "the most abandoned instance of ministerial effrontery ever attempted to be imposed on mankind". after being found guilty of seditious libel, he again ran for the house of commons, and was repeatedly elected and expelled. he was subsequently elected alderman, sheriff, and mayor of london. in , alexander macdougall was voted guilty of seditious libel by the new york colonial assembly for authoring a handbill which denounced a collusive agreement by which the assembly voted to furnish supplies for the british troops in new york in exchange for the royal governor's signature to a paper-money bill. when he was arrested, the sons of liberty rallied to his support, demanding freedom of the press. benjamin franklin's brother had been imprisoned for a month by the massachusetts assembly for printing in his newspaper criticisms of the assembly. he was forbidden to print the paper. benjamin supported him by publishing extracts from other papers, such as "without freedom of thought, there can be no such thing as wisdom; and no such thing as public liberty without freedom of speech... whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech; a thing terrible to public traitors." 	by statute of , the new york house of representatives was prohibited from meeting or voting until they provisioned the king's troops as required by law. 	in , harvard college seated its students in class in alphabetical order instead of by social rank according to birth. 	by , the colonies' boycott of british goods in protest of the new duties cause these imports to decline so much that british merchants protested. so the duties were dropped, except for that on tea, which was retained as a matter of principle to assert the power of the crown to tax the colonies. then in the east india company was allowed to sell tea directly to the colonies to help it avoid bankruptcy. the effect of this was to lower the cost of tea in the colonies by avoiding the english middleman, and the american middleman, but also to give the east india company a monopoly. the colonies felt threatened by this power of britain to give monopolies to traders. when the tea ships arrived in boston in late , bostonians held a town meeting and decided not to let the tea be landed. they threw this cargo of tea, worth about , pounds, overboard. this boston tea party was a direct challenge to british authority. in response, parliament closed the port of boston until compensation was made to the east india company. by statute of , no one was to enter or exit the port of boston or else forfeit goods, arms, stores, and boats that carried goods to ships. every involved wharf keeper was to forfeit treble the value of the goods and any boats, horses, cattle, or carriages used. ships hovering nearby were to depart within six hours of an order by a navy ship or customs officer or be forfeited with all goods aboard, except for ships carrying fuel or victuals brought coastwise for necessary use and sustenance of inhabitants after search by customs officers, and with a customs official and armed men for his defense on board. this statute was passed because of dangerous commotions and insurrections in boston to the subversion of the king's government and destruction of the public peace in which valuable cargoes of tea were destroyed. later, the governor was given the right to send colonists or magistrates charged with murder or other capital offenses, such as might be alleged to occur in the suppression of riots or enforcement of the revenue laws, to england or another colony for trial when he opined that an impartial trial could not be had in massachusetts bay. a later statute that year altered the charter of massachusetts bay province so that the choice of its council was transferred from the people to the king to serve at his pleasure, and the appointment and removal of judges and appointment of sheriffs was transferred to the governor to be made without the consent of the council. this was due to the open resistance to the execution of the laws in boston. further, no meeting of freeholders or inhabitants of townships was to be held without consent of the governor after expressing the special business of such meeting because there had been too many meetings that had passed dangerous and unwarranted resolutions. also, jurors were to be selected by sheriffs rather than elected by freeholders and inhabitants. 	the commander of the british troops in north america was made governor of massachuseetts. king george thought that the colonists must be reduced to absolute obedience, even if ruthless force was necessary. the people of massachusetts were incensed. they were all familiar with the rights of magna carta since mandatory education taught them all to read and write. mandatory education every township of fifty households had to appoint one person to teach all children to read and write. every one hundred families had to set up a grammar school.) the example in massachusetts showed other colonies what england was prepared to do to them. also disliked was the policy of restricting settlement west of the allegheny mountains; the take over of indian affairs by royal appointees; the maintenance of a standing army of about , men which was to be quartered, supplied, and transported by the colonists; and expanded restrictions on colonial paper currencies. 	the virginia house of burgesses set aside the effective date of the port bill as a day of prayer and fasting, and for this was dissolved by its governor. whereupon its members called a convention of delegates from the colonies to consider the "united interests of america". this congress met and decided to actively resist british policy. as opposition to british rule spread in the colonies, a statute was passed stating that because of the combinations and disorders in massachusetts, new hampshire, and connecticut, and rhode island to the destruction of commerce and violation of laws, these inhabitants should not enjoy the same privileges and benefits of trade as obedient subjects and that therefore no goods or wares were to be brought from there to any other colony, and exports to and imports from great britain were restricted, on pain of forfeiting the goods and the ship on which they were laden. there vessels were restricted from fishing off newfoundland. these conditions were to be in force until the governors were convinced that peace and obedience to laws was restored. later in , these trade restrictions were extended to new jersey, pennsylvania, maryland, virginia, and south carolina. in , since all the thirteen colonies had assembled an armed force and attacked british forces, these trade restrictions were extended to delaware, new york, georgia, and north carolina and expanded to prohibit all trade during the present rebellion to prevent assistance to them. war had started; the new rifle was used instead of the musket. 	by statute of , anyone harboring of army or marine deserters in the colonies forfeited pounds anyone persuading a soldier or marine to desert drew a forfeiture of pounds or else up to six months in prison without bail and one hour in the pillory on market day. 	bounties were made available to vessels from and fitted out in great britain for newfoundland fishing. 	any shipmaster carrying as passengers any fisherman, sailor, or artificer to america forfeited pounds because such men had been seduced from british fishing vessels in newfoundland, to the detriment of the fishing industry. 	the many years of significant achievements of the colonists, such as taming the wilderness and building cities, had given them confidence in their ability to govern themselves. the average colonial family had a better standard of living than the average family in england. many of its top citizenry had reached their positions by hard work applied to opportunities for upward mobility. with the confidence of success, the american colonies in declared their independence from britain, relying on the principles stated by john locke and jean jacques rousseau that man was naturally free and all men equal, and that society was only created with their consent. issac's newtons's unified laws of the universe had contributed to this idea of a natural law of rights of men. thomas jefferson wrote a declaration of independence which listed the colonies' grievances against the crown which reiterated many of the provisions of the petition of right and bill of rights, specifically dispensing with and suspending laws, maintaining a standing army and quartering troops without legislative consent, imposing arbitrary taxation, encouraging illegal prosecutions in strange courts, and corrupting the jury process. it was adopted about july , . thereafter, the american colonies did not follow english law. past english law became the legal heritage of the united states of america. - the law - 	anyone who feloniously steals or aids in the stealing of goods, wares, or merchandise over s. from a shop, warehouse, coach house, or stable, by night or by day, whether the owner is present or not, whether there is a break in or not, may not have benefit of clergy. 	anyone stealing goods of s. worth from a ship on any river or in any port or creek or from any wharf may not have benefit of clergy. 	anyone receiving or buying goods they know to be stolen or who harbors or conceals any burglars, felons, or thieves knowing them to be such shall be taken as accessory to the felony and shall suffer death as punishment if the principal felon is convicted. 	a person taking money or reward for helping any other person to stolen goods or chattels is guilty of felony unless he brings the thief to trial. 	as of , any person convicted of grand or petit larceny or any felonious stealing or taking of money, goods, or chattels, either from the person or from the house of any person who is entitled to benefit of clergy and who is liable only to whipping or burning in the hand may instead be transported to the american colonies to the use of any person who will pay for his transportation for seven years. any person convicted of an offense punishable by death and without benefit of clergy and buyers and receivers of stolen goods may be given mercy by the king on condition of transportation to any part of america to the use of any person who will pay for his transportation, for fourteen years or other term agreed upon. returning before the expiration of the term is punishable by death. 	anyone assaulting another with an offensive weapon with a design to rob may be transported for seven years. 	any person armed with swords, firearms, or other offensive weapons and having their faces blackened or otherwise being disguised, who appears in any forest, park, or grounds enclosed by a wall or fence wherein deer are kept (including the king's deer) or in any warren or place where hares or conies are kept or in any high road, open heath, common, or down, or who unlawfully hunts, wounds, kills, or steals any deer or steals any hare or rabbit or steals any fish out of any river or pond or who unlawfully and maliciously breaks down the head or mound of any fish pond, causing the loss of fish, or who unlawfully and maliciously kills, maims, or wounds any cattle, or who cuts down any trees planted in any avenue or growing in any garden or orchard for ornament, shelter, or profit, or who sets fire to any house, barn or out house [outer building], hovel, or stack of grain, straw, hay or wood, or who willfully and maliciously shoots any person in any dwelling house or other place, or who sends any letter with no signature or a fictitious signature, demanding money, venison, or other valuable thing, or who forcibly rescues any person lawfully in custody for any of these offenses, or who procures others by gift or promise of money or other reward to join with him in any such unlawful act is guilty of felony and shall suffer death without benefit of clergy. persons abetting them are also guilty of felony and shall suffer death without benefit of clergy. attainder shall not work corruption of the blood, loss of dower, or forfeiture of lands, goods, or chattel. the persons sustaining damages can recover pounds or less from the hundred, with inhabitants paying proportionately, unless one of the offenders is convicted within six months. if other hundreds have not diligently followed the hue and cry, they shall pay half such damages. in , it was required that there be notice to the constable or other officer or tythingman and public notice in the london gazette describing the robbery, offenders, and goods taken before the hundred had to pay damages. also, it did not have to pay damages if one offender was apprehended with days of publication in the london gazette, but did have to pay the apprehender pounds. in was also included letters threatening killing people or burning houses, barns or stacks of grain, hay, or straw, without any demand. also, persons who rescued such offenders from gaol were given the same penalty. 	later, persons obtaining money or goods by false pretenses with an intent to defraud or cheat or sending a letter without a true signature threatening to accuse any person of a crime with an intent to extort money or goods, are punishable by fine and prison, pillory, or whipping or transportation for seven years. 	later, no person may recover more than pounds after a hue and cry unless there are at least two witnesses to the robbery. 	no one may advertise a reward for return of things stolen or lost with no questions asked, because this has resulted in thefts and robberies. 	anyone stealing sheep or cattle or parts thereof is a felon and shall suffer death without benefit of clergy. 	persons who steal or aid in stealing any lead, iron bar, iron gate, palisade, or iron rail fixed to any house or its outhouses, garden, orchard, or courtyard is guilty of felony and may be transported for seven years. in also included was copper, brass, bell-metal, and solder; buyers and receivers; and mills, warehouses, workshops, wharves, ships, barges, and other vessels. search warrants were authorized in case of suspicion. officers and solicited buyers and receivers were required to take persons who at night were reasonably suspected of having or carrying such items, to an accounting before a justice of the peace. also a notice was put in the newspaper for any owners to claim such. if the person did not give a satisfactory account of the items, he was guilty of a misdemeanor punishable by forfeiture of pounds or prison up to one month for the first offense, pounds or prison for two months for the second offense, and pounds or prison for any subsequent offense (without bail). an officer or solicited buyer or receiver who did not take a suspect to a justice of the peace was punishable by the same penalties except the amounts of forfeiture were pound, pounds, and pounds respectively. a felon who brought two buyers or receivers to justice was to be pardoned. 	a description of any goods and the appearance of a rogue or vagabond or idle and disorderly person shall be advertised in a public paper for identification by the owner as stolen. 	pawning goods without consent of the owner is punishable by forfeiture of s. or hard labor for fourteen days with whipping there. 	maliciously destroying river banks resulting in lands being overflowed or damaged is a felony for which one shall suffer death without benefit of clergy. later, transportation for seven years was made an alternative. 	the punishment for forgery or counterfeiting or assisting in such or claiming a counterfeit item is good while knowing that it is not, with an intent to defraud is death without benefit of clergy. the punishment for perjury or subordination of perjury is hard labor in the house of correction for up to seven years or transportation for up to seven years. the punishment for altering numbers on bills of exchange or other payment papers is death. 	it is high treason to counterfeit the coinage. a person who tenders coin, knowing it to be false, shall spend six months in prison and acquire sureties for good behavior for the next six months. if he offends again, he shall spend two years in prison and acquire sureties for good behavior for the next two years. the third offense is felony without benefit of clergy. 	in , making or possessing any frame, mould, or instrument for forging paper notes of the bank of england and putting this identification thereon is felony with penalty of death without benefit of clergy. anyone who forges promissory notes, bills of exchange, or inland bills of the bank of england by engraving or etching on metal or wood "bank of england" or "bank post bill" shall go to gaol for up to six months. 	anyone selling gold or silver ware, vessel, plate or other item large enough to be marked which has not been marked by its maker shall forfeit pounds or be kept at hard labor up to six months. anyone counterfeiting such mark shall forfeit pounds. later, vendors of these items were required to be licensed and the penalty for counterfeiting was raised to felony for which one shall suffer death without benefit of clergy. later still, transportation for fourteen years was allowed as an alternative. if an item was not all silver, e.g. had metal underneath, pounds was to be forfeited. 	in , receivers of stolen jewels and gold and silver plate and watches knowing them to be stolen, in cases of burglary and highway robbery, were subject to transportation for years. 	anyone who willfully and maliciously set on fire any mine or pit of coal is guilty of felony and shall suffer death without benefit of clergy. anyone who willfully and maliciously floods a coal work, mine pit or who makes underground cavities or passages with intent to destroy or damage such, or obstructs any sough or sewer made for draining such, which has been held in common for years, shall forfeit treble damages. this is to deter these offenses, which have been done to enhance the price of coals and gain a monopoly thereof. 	if twelve or more people who riotously and tumultuously assemble and disturb the peace, do not disburse within an hour of an order to disburse by a justice or sheriff or mayor, they shall be deemed felons without benefit of clergy. any people pulling down or destroying a church, dwelling house, barn, stable, or other out house; any mill; any engine used for draining water from any coal, lead, tin, or copper mines, or for drawing coals from mines; or bridge, wagon, or fences used in such industry will be deemed felons without benefit of clergy and may be transported for seven years. the cost of repair is to be borne by the hundred or town. 	the earlier statute that substituted burning in the cheek for burning in the hand is repealed because this not only did not deter offenders, but on the contrary, made them unfit for honest livelihoods and therefore more desperate. those convicted of theft or larceny shall be burnt in the hand and may be kept at hard labor in a house of correction for - months, without bail. 	anyone stealing goods off shipwrecks, or putting out a false light to bring a ship to danger, or beating or wounding with an intent to kill or otherwise obstructing a person escaping from the ship to save his life shall suffer death without benefit of clergy. except that good of small value taken without violence shall be punished as petit larceny. the houses of suspect people may be searched by warrant. if there are goods found or if people are found offering goods to sell, they may be ordered by a justice to give an account of these goods. if the account is not satisfactory, the punishment is forfeiture of treble their value or six months in prison. a reasonable reward may be given to the discoverer. anyone assaulting a magistrate or officer involved in salvage work shall be transported for seven years. 	armed persons up to three in number assembled to assist in illegal exporting or running, landing, or carrying away prohibited or uncustomed goods, and any person apprehended by any revenue officer, and anyone with his face blackened or masked who obstructs, assaults, opposes, or resists any revenue officer seizing such goods, or who shoots at or maims or wounds any revenue officer attempting to go on any ship shall suffer death as felons without benefit of clergy or serve as commons sailors in the navy for at least one year. harborers of such offenders will be transported for seven years. the hundreds shall pay pounds for each revenue officer killed, and up to pounds for each one beaten, wounded, or maimed, and damages up to pounds for goods, unless an offender is caught and convicted in six months. there is a reward of pounds to an apprehender, and pounds for an attempt to apprehend in which one loses a limb or eye or is maimed or wounded, and pounds to his family if he is killed. an offender who brings two of his accomplices to justice will be acquitted and rewarded pounds for each such accomplice. later, an incentive was given to customs officers to have a portion of the proceeds of the sale of such goods seized by them, such as / for wrought silks and calicoes, and / for tea, coffee, foreign brandy, and rum. still later, any person could seize wrought silk, including ribbons, laces, and girdles containing it, from the importer or retailer, and the importer was to forfeit pounds, and any import assistants pounds, and retailers or concealers pounds, with one half going to the suer. also, the goods were to be publicly burnt. still later, the penalty was increased to forfeiture of pounds for all offenders, but not including wearers, and the goods were to be publicly sold for export rather than burnt. then the import of silk stockings, silk mitts, and silk gloves was prohibited for the support of the english silk industry. retailers, sellers, and concealers of such were to forfeit the goods and pounds. search warrants could be issued. in , importers, sellers, and manufacturing users of most foreign wrought silks or velvets were to forfeit the goods and pounds. the goods were sold for export with the proceeds going / to the king, and / to the seizing officer. the wearer was not liable. the burden of proof of the place of manufacture was on the person prosecuted rather than on the prosecutor. persons breaking into houses or shops to destroy any wool or silk being made or tools or racks used shall suffer death as felons, to prevent combinations of workmen. in , bounties were made available to american exporters of raw silk to great britain, whose climate was not conducive to the growing of mulberry trees on which silk worms feed. in , cotton printed, stained, or dyed that has been manufactured in great britain may be worn and used, but must have a mark woven in the warp that it was manufactured in great britain. persons importing other such cloth shall forfeit it and ten pounds per piece. persons selling such with a counterfeit stamp with an intent to defraud shall suffer death without benefit of clergy. the protective measures for english silk manufacture did not work well. 	any pirate, accessory to piracy, commander or master or other person of any ship or vessel who trades with a pirate or furnishes him with ammunition or provisions of fits out a ship to trade with pirates shall suffer death and loss of lands, goods, and chattels. seamen maimed in fighting pirates may be admitted into greenwich hospital. (this hospital received support from duties paid by vessels of the realm and of the colonies.) masters or seamen not fighting shall forfeit their wages and spend months in prison if the ship is taken. masters shall not advance to any seamen above half his wages since deserting is the chief occasion of their turning into pirates. 	in london penalties for crimes against property rose so that by , a child could be hanged for stealing a handkerchief worth s. from a person's body. 	trade and the economy boomed in time of war, buttressed by the increased production in the coal, iron, steel, shipbuilding, and cloth industries. but peace brought depression and much misery, including the imprisonment of many debtors. when very many were imprisoned, statutes allowed release on certain conditions. after assets were paid to creditors in proportion to the amounts owed to them, debtors could be discharged from prison if they owed no party more than pounds (later no restriction and still later, pounds, and even later, pounds, and in , pounds, and in , pounds) and take an oath that they have less than pounds ( in ) worth of property (including s. in money in ), because there were so many debtors in prison who were impoverished by war losses and other misfortunes in trades and professions, and were totally disabled from paying their creditors, and they and their families either starved or became a burden to their parishes and became an occasion of pestilence and other contagious diseases. exempted were those debtors for whom there was an objection by one of their creditors who paid for the maintenance of that debtor in prison. prisoners discharged were also discharged from chamber [cell] rent and gaolers' fees, but not from their debts to creditors. during war, no male prisoner could be discharged unless he enlisted in the royal army or navy until the end of the war. in , the discoverer of any asset of a debtor not listed by that debtor was to receive a reward of pounds per hundred, and anyone concealing an asset of a debtor was to forfeit pounds as well as double the value of the asset. 	a person declared bankrupt shall subsequently be examined from time to time as to their goods, money, or other effects or estate to prevent the frauds frequently committed by bankrupts. a default or willful omission shall be deemed felony without benefit of clergy. 	a bankrupt or other person concealing goods to the value of at least pounds or his books with intent to defraud is a felony without benefit of clergy. 	a debtor refusing to come to court for examination or hiding assets of more than pounds is guilty of felony and his goods and estate shall be divided among his creditors. 	later, a bankrupt coming to an examination was allowed to keep (or / or ) pounds per , up to a maximum of (or or , respectively) pounds if he paid his creditors s. (or s. d. or s. respectively) per pound. his future estate was still liable to creditors, excepting tools of trade, necessary household goods, bedding, furniture, and wearing apparel of the family up to pounds, if it could pay every creditor s. per pound. if he didn't pay this, he could be imprisoned. bankrupts excepted from the benefits of this act are those who lost pounds in any one day or pounds in the preceding year from gambling or wagers. 	no goods or chattels on lands or tenements which are leased for life or lives or term of years or at will or otherwise "shall be liable to be taken by virtue of any execution on any pretence whatsoever unless the party at whose suit the said execution is sued out shall before the removal of such goods from off the said premises by virtue of such execution or extent pay to the landlord" all money due as rent. if the lessee fraudulently or clandestinely conveys or carries off his goods or chattels with intent to deprive the landlord or lessor from distraining the same for arrears of such rent, the lessor or landlord may, within five days, seize such goods and chattels as a distress for the arrears of rent and may sell them as if actually distrained on the premises. 	every person under and every woman-covert who is entitled by descent or will to be admitted tenants of any copyhold lands or hereditaments may be ordered to appear by a guardian or attorney to be compelled to be so admitted and to pay such fines as are owing by the lands. if one is so admitted, but does not pay, the lord may enter the lands and receive its rents, but not sell timber, until the fine and costs are satisfied, after which the land is to be given back and may not be forfeited to the lord. 	tenants holding over any lands after their term expired and after demand for possession was made shall pay double the yearly value of such to the landlord. the landlord may reenter and eject a tenant if rent is in arrears for / year. 	landlords may distrain within days and sell goods and chattels fraudulently or clandestinely carried off the premises by renters in arrears of rent. this applies to goods sold to others privy to the fraud. they may use force if necessary to break open houses upon giving a justice of the peace reasonable grounds to suspect and to break open other buildings in the presence of a constable. the renter is to forfeit double the value of such. the landlord may distrain the renter's cattle on any common or any growing grain, roots, or fruit. attornments of renters made to strangers who claim title and turn the landlord out of possession are void. 	chief leases may be renewed without surrendering all the under leases. this is to prevent subtenants from delaying the renewal of the principal lease by refusing to surrender their leases, notwithstanding that they have covenanted to do so. but the rents and duties of the new subleases may not exceed those of their former leases. 	any person claiming a remainder, reversion, or expectancy in any estate upon a person's death, who has cause to believe that that person is dead and that the death is being concealed by the person's guardian, trustee, husband, or other person, may request yearly an order in chancery for the production of such tenant for life. upon refusal, the tenant for life shall be deemed dead. 	as of , all devices, legacies, and bequests made by will in great britain or the colonies had to be in writing and witnessed by three witnesses, or would be held void. no witness was to receive anything by the will that he witnessed. 	an accessory before or after the fact of felony may be prosecuted and tried not only if the principal accused felon has been convicted, but even if he stood mute or peremptorily challenged over persons to serve on the jury. the accessories shall be punished the same as if the principal had been attainted. buyers and receivers of stolen goods may be prosecuted and punished if they knew the goods to be stolen, even if the principal felon has not been convicted. the punishment will be as for misdemeanor by fine and imprisonment. this is to deter the counselors and contrivers of theft and other felonies and the receivers of stolen goods from taking advantage of the former rule that an accessory could not be convicted or punished unless the principal had first been attainted. and if any captain or mariner or other officer belonging to any ship willfully casts away, burns, or otherwise destroys that ship to the prejudice of its owners or merchants loading goods onto the ship, he shall suffer death as a felon. 	journeymen shoemakers or employees of such who sell or pawn boots, shoes, slippers, cut leather or other materials for making such goods which are not his proper goods, or exchange for worse good leather which has been entrusted to them, shall for the first offense, recompense the injured person, or if his goods are insufficient for distress, may be whipped. for the second offense, he shall be sent to hard labor in a house of correction for - days. a person who buys or receives or takes in pawn such goods shall suffer the same penalties. justices of the peace may issue warrants to search houses and buildings in the daytime if there is "just cause to suspect" such goods therein based upon information given to him under oath. 	anyone employed in the working up of woolen, linen, fustian, cotton, or iron manufacture who embezzles or purloins any materials for their work shall forfeit double the value of the damages done and anyone convicted thereof may be put into the house of correction until he pays, or if he can't pay, to be publicly whipped and kept at hard labor for no more than days. persons convicted of buying or receiving such materials shall suffer like penalties and forfeitures as one convicted of embezzling or purloining such materials. laborers employed in such manufacture must be paid in coin and not in cloth, victuals, or commodities in lieu thereof. leatherworkers were added with a penalty of up to double the value. later this statute was amended to include a penalty for the second offense of forfeiture of four times the value, or else hard labor at a house of correction for - months and whipping once or more in the market town. like penalties were given for buyers of such material knowing it to be false. one who neglected finishing and delivering such goods because he was leaving this employment was to be sent to the house of correction for up to one month. 	the penalty for possessing or offering to sell any hare, pheasant, partridge, moor or heath game or grouse by any carrier, innkeeper, victualer, or alehouse keeper is pounds, / to the informer, and / to the poor of the parish. if unable to pay, the offender shall be placed in the house of correction for three months without bail. unauthorized persons keeping or using greyhounds, setting dogs, or any engine to kill game shall suffer the same penalties. in , anyone killing hare at night or using any gun, dog, or other engine to take or kill or destroy any hare, pheasant, partridge, moor game, heath game, or grouse in the night shall be whipped and also go to gaol or the house of correction for - months without bail for the first offense, and for - months without bail for any further offense. if such occurs on a sunday, the offender must forfeit - pounds or go to gaol for - months. in , no one may kill or take or possess any heath fowl or any grouse except at a limited period during the year. 	each manor may have only one gamekeeper allowed to kill game such as hare, pheasant, partridge and only for his household's use. this gamekeeper must be either qualified by law or a servant of the land's lord. other persons possessing game or keeping a greyhound or setting dogs or guns or other devices to kill game must forfeit them and five pounds. 	anyone killing or attempting to kill by shooting any house dove or pigeon shall forfeit s. or do hard labor for one to three months. excepted are owners of dove cotes or pigeon houses erected for the preservation and breeding of such. 	a gamekeeper or other officer of a forest or park who kills a deer without consent of the owner must forfeit pounds per deer, to be taken by distress if necessary, and if he can't pay, he is to be imprisoned for three years without bail and set in the pillory for two hours on some market day. a later penalty was transportation for seven years. anyone pulling down walls of any forest or park where deer are kept, without the consent of the owner, must forfeit pounds and if he can't pay, he is to be imprisoned for one year without bail and spend one hour in the pillory on market day. later, the killing of deer in open fields or forests was given the same penalties instead of only the monetary penalty prescribed by former law (former chapter). the penalty for a second offense was given as transportation for seven years. anyone beating or wounding a gamekeeper with an intent to kill any deer in an open or closed place was to be transported for seven years. 	anyone who apprehends and prosecutes a person guilty of burglary or felonious breaking and entering any house in the day time shall be rewarded pounds in addition to being discharged from parish and ward offices. 	justices of the peace may authorize constables and other peace officers to enter any house to search for stolen venison. any person apprehending an offender or causing such to be convicted who is killed or wounded so as to lose an eye or the use of a limb shall receive pounds. any person buying suspect venison or skin of deer shall produce the seller or be punished the same as a deer killer: pounds or, if he couldn't pay, one year in prison without bail and one hour in the pillory on market day. an offender who discloses his accomplices and their occupations and places of abode and discovers where they may be found and they are subsequently convicted, shall be pardoned. 	all persons pretending to be patent gatherers or collectors for prison gaols or hospitals and all fencers, bearwards, common players of interludes, minstrels, jugglers, and pretended gypsies, and those dressing like egyptians or pretending to have skill in physiognomy, palm-reading, or like crafty science, or pretending to tell fortunes, and beggars, and all persons able in body who run away and leave their wives or children to the parish shall be deemed rogues and vagabonds. apprehenders of such persons bringing them before a justice of the peace may be rewarded s. any constable not apprehending such shall forfeit s. persons wandering outside the place determined by a justice of the peace to be his settlement may be whipped on the back until it is bloody or sent to hard labor at a house of correction. if he was dangerous and incorrigible, for instance as indicated by swearing falsely before a justice of the peace, he could suffer both punishments with the whipping being on three market days. if he escaped from the house of correction, it was felony. if he has been absent for more than two years, he could be put out as an apprentice for seven years in the realm, in the colonies, or in a british factory beyond the seas. included later were performers for gain from outside their parish of any play, tragedy, comedy, opera, farce or other entertainment of the stage, including performances in public places where wine, ale, beer, or other liquors are sold, or else forfeit pounds. exempted were performances authorized by the king in westminster. 	unlicensed places of entertainment are deemed disorderly (like bawdy houses and gaming houses) because they increase idleness, which produces mischief and inconvenience. persons therein may be seized by a constable. persons keeping such a place shall forfeit pounds. no licensed place of entertainment may be opened until : p.m. 	later there was an award of s. for apprehending a person leaving his wife and children to the parish, living idly, refusing to work at going rates, or going from door or placing themselves in the streets to beg. this includes begging by persons who pretend to be soldiers, mariners, seafaring men, or harvest workers. these rogues and vagabonds shall be sent to hard labor at a house of correction for up to one month. the real soldiers, mariners, seafaring men, and harvest workers shall carry official documents indicating their route and limiting the time of such passage. 	persons pretending to be lame who beg are to be removed. if he comes back to beg, his back may be whipped until bloody. if a constable neglects this duty, he shall forfeit s. 	masters of ships bringing in vagabonds or beggars from ireland or the colonies shall forfeit five pounds for each one. this money shall be used for reconveying such people back at a price determined by a justice of the peace. a master of a ship refusing to take such a person shall forfeit five pounds. these vagabonds and beggars may be whipped. 	anyone who profanely curses or swears shall suffer the following penalties: day laborer, common soldier, common sailor, common seaman - s., anyone else below the degree of gentleman - s., gentlemen and above - s., and for the second offense, a double fine, for further offense, a treble fine. if a person can't pay, he shall be put to hard labor at a house of correction for ten days, or if a common soldier, common sailor, or common seaman, he shall be set in the stocks for - hours. this is to prevent the provocation of divine vengeance. 	anyone setting up or maintaining lotteries or deceitful games must forfeit pounds, or go to prison up to months. any one who plays at such, such as by drawing lots or using cards or dice, must forfeit pounds. sales of lottery items, such as houses, lands, plate, jewels, or ships, are void and these items will be forfeited to any person who sues. such have caused many families to become impoverished, especially through their children or through the servants of gentlemen, traders, and merchants. backgammon games are exempt. later, people who lost up to ten pounds in deceitful gaming were allowed to sue to recover this money from the winners. also, anyone winning or losing ten pounds at one time or twenty pounds within hours shall be fined five times the value of such. offenders discovering others, who are convicted, are indemnified from all penalties and shall be admitted to give evidence. 	no one may run more than one horse, mare, or gelding in a horse race. no prize may be under pounds value. this is because a great number of horse races for small prizes have contributed to idleness, to the impoverishment of the meaner sort of people, and has prejudiced the breed of strong and useful horses. 	wagers and agreements in the nature of puts and refusals relating to prices of stocks or securities are void. those making or executing such agreements must forfeit pounds. those selling stock which one does not possess must forfeit pounds. brokers negotiating such agreements must forfeit pounds. 	only a person with an interest in the life or death of another may have insurance on this other, to prevent the mischievous kind of gaming that has been introduced. 	apples and pears may not be sold by any measure other than a standard water measure, or else forfeit s., one-half to the informer, and one-half to the poor, except for measures sealed by the company of fruiterers. this is to decrease the suits between buyers and sellers. 	there shall be enough silver and gold on silver and gold plated silk thread and wire so that it does not crumble off, thereby wasting the bullion of the nation. this is also to encourage its export by making it competitive in trade with such foreign articles, which may not be imported. 	malt to be sold or exported must not be fraudulently mixed with unmalted grain to lower duties payable or else forfeit s. 	any one who adulterates coffee with water, grease, butter, and such shall forfeit pounds, / to the king, and / to the suer. 	walnut tree leaves, hop leaves, sycamore leaves and such may not be made to imitate tobacco leaves for sale or else forfeit s. per pound. 	persons near london may not make unsound, hollow, or improperly heated bricks. 	makers of narrow woolen cloths must weave or set in the head of every piece his initials or else forfeit one pound. this is to prevent frauds and abuses, particularly in stretching and straining the cloth. the fulling mill owner must append his seal of lead with his name and with his measurements. the searcher to be appointed must measure such cloths when wet for conformity to standard measurements and append his seal with his measurements. he may also inspect any places he chooses. 	in , any wool-making employee not returning all working tools and implements and wool and all materials with which entrusted back to his employer, or who fraudulently steams, damps, or waters such wool, or who takes off any mark on any piece of cloth, shall go to the house of correction for one month. if he absconds with or sells such or anyone fraudulently buys or receives such from him, a search warrant may be issued to seize any other such tools or material. if found, the possessor may be brought to account before a justice of the peace, and if his account is not satisfactory, he shall forfeit such. a search warrant may also be issued for houses on "just cause to suspect" by oath of a credible witness. for a second offense, the penalty is up to three months in a house of correction. for a third offense, the penalty is up to six months in a house of correction and public whipping. 	bakers must mark their bread with w for white, wh for wheaten, and h for household or else forfeit s. to the informer. in , a new assize of bread set prices for rye, barley, oats, and beans by the bushel. the prices for the three qualities of wheat, for wheaten (prized and unprized), and for household grain by the bushel were to be determined from within a statutory range by the local mayor or justice of the peace. mayors and justices of the peace were to determine a fair profit for their local bakers for all the types of bread. a miller, mealman, or baker adulterating bread was to forfeit s. pounds, part of which money could be used in publishing his name, abode, and offense in the local newspaper. later, there was a forfeiture of - s. for every ounce underweight. household bread was to be / cheaper than wheaten or forfeit - s. bread inferior to wheaten was not to be sold at a price higher than household or else forfeit up to s. if the forfeiture was not paid, it could be levied by distress, or otherwise the offender was to spend one month in gaol or a house of correction. 	straw to be sold in london must be sound, firmly bound in a truss, and of a given weight or else forfeit it and s. if no truss, and s. if in truss but underweight or of mixed quality. handlers must keep registers of sellers, buyers, weights, dates of sale, and prices or else forfeit - s. 	frame-work knitted pieces and stockings shall be marked with the correct number of threads by the master, frame-work knitter, or master hosier, or forfeit the goods and pounds. if a journeyman apprentice, or servant employ does not mark correctly, he shall forfeit the goods and s.- s. sellers of such shall forfeit the goods and pounds per piece. 	at every fishing season, the quantity of salt, foreign or domestic, used by a proprietor for curing fish for export shall be accounted and sworn to so that it can be compared with the quantity of fish exported by the proprietor to ensure that the salt duties are fully paid, or else forfeit pounds. if such salt is sold for other uses than curing fish, the proprietor is to forfeit s. per bushel sold and the users thereof, to forfeit s. per bushel bought, delivered, or used. if one can't pay, he is to be whipped and put to hard labor in a house of correction for up to three months. 	agreements between coal owners, lightermen, fitters, master or owners of ships, hindering the free sale, loading, and unloading, navigating, or disposing of coals are illegal, null, and void. this is engrossing and has caused the price of coals to go up. 	no coal trader or dealer may use his own lighters, barges, or other vessels to carry coals on the thames river to and from any ship and to and from any wharf, dock, or creek because this has impaired the business of the watermen and wherrymen, whose vessels must now be registered and display such mark on their hulls. no lightermen nor buyers of coals may act as agent for any master or owner of a ship importing coals into london or else forfeit pounds, because this combination has caused the price of coal to go up. selling one sort of coal for another is punishable by forfeiture of pounds. only standard size coal sacks may be used for selling coal and they must be sealed and stamped by an official at the guildhouse before sale. the mayor and aldermen of london may set the price of coals coming into this port. in other areas, justices of the peace set the prices of coals which allowed "a competent profit". if a merchant refused to sell at that price, the justice of the peace could authorize seizure and sale by officers. 	later, coal measurers must give the coal cart driver a ticket with the name of the sellers and consumers, the quantity and quality of the coal, its price, the date of sale, and the name of the cart driver or else forfeit pounds. the cart driver must give this ticket to the consumer or forfeit pounds. if coal is carried by cart without a ticket, the seller forfeits pounds and the driver pounds. 	any owner of timber trees, fruit trees, and other trees used for shelter, ornament, or profit, which are cut down or otherwise destroyed shall be made good by his parish or town, as is an owner of hedges and dikes overthrown by persons in the night. in , anyone cutting down or destroying any oak or other timber trees at night shall forfeit up to pounds for the first offense, up to pounds for the second offense, and shall be transported to the colonies for seven years for any further offense. anyone digging up or destroying or carrying away any root, shrub, or plant worth up to s. in a garden, nursery, or other enclosed ground at night shall forfeit up to pounds for the first offense, up to pounds for the second offense, and shall be transported to the colonies for seven years for any further offense. anyone not paying is to be gaoled. aiders and buyers who know the item was stolen shall incur the same penalties. later, many other types of trees, such as beach, ash, elm, cedar, and walnut were included as timber trees, and hollies, thorns, and quicksets included as plants. 	any person using violence to hinder the purchase or transportation of grain, e.g. by beating or wounding a buyer; beating or wounding the driver or horse of a cart loaded with wheat, flour, meal, malt, or other grain, or cutting the harness of or driving away the horse, or cutting or carrying away the sacks of grain is to be put in the common gaol or house of correction with hard labor for - months, and whipped in the market place between : and : . the penalty for a second offense or for destroying a storehouse or granary where grain is kept to be exported or for taking or spoiling such grain, or for throwing such off a ship or vessel is transportation for seven years. the hundreds concerned are to pay damages up to a total of pounds, but only if notice is given to the constable within two days and there is an oath and examination before a justice of the peace within ten days of the owner or his servants. if any offender is convicted within a year, the hundreds are released. 	anyone who steals at night any cloth or wool or woolen goods set out to dry on racks shall forfeit treble damages, or if he can't pay, be sent to prison for three months without bail. for the second offense, he shall forfeit treble damages and be sent to prison for six months without bail. for the third offense, he shall be transported for seven years. upon complaint, a justice of the peace may authorize a constable or other peace officer to enter and search houses, outhouses, yards, and gardens of a person suspected by the owner. this person shall account to the justice of the peace and may bring a witness to his purchase of the items. if the account is unsatisfactory, he shall be penalized. 	anyone taking linens, fustians, or cottons set out for whitening, bleaching, or printing up to the value of s. in lands, grounds, or buildings may be transported for seven years. later, this penalty was increased to death without benefit of clergy or transportation for fourteen years. 	anyone stealing or maliciously pulling up or destroying any turnips on a person's land must pay damages or go to gaol for up to one month. he may be whipped. the penalty for a second offense is three months in a house of correction. this statute of was, in , extended to include potatoes, cabbages, parsnips, peas, and carrots. a penalty up to s. was added. evidence of the owner was to be taken. 	in , anyone who steals a dog or receives such knowing it to be stolen shall forfeit - pounds for the first offense, and - pounds for the second offense or go to gaol or the house of correction for - months and be publicly whipped there. search warrants may be issued to search for stolen dogs or their skins. one-half of the forfeiture will go to the informer. 	officers of the revenue who collude with importers to return to them goods which have been seized for nonpayment of duties shall forfeit pounds and lose office, unless they disclose their accomplices within two months. the importer shall forfeit treble the value of such goods. 	any ship not more than tons hovering on the coast with customable or prohibited goods may be boarded by a customs officer, who may demand bond for treble the value of the goods. 	in , persons contracting with artificers and manufacturers of wool, iron, steel, brass, and other metals, clockmakers, or watchmakers, to go to a foreign country and there receive greater wages and advantages shall forfeit pounds and spend months in prison for the first offense, and shall forfeit a sum determined by the court and spend months in prison for the second offense. an artificer or manufacturer not returning after warning is given by the ambassador is to forfeit hereditaments, goods, and lands and to be deemed an alien. later, in , cotton and silk were included and the penalty was increased to pounds and months in gaol for the first offense, and pounds and years in prison for the second offense. also, anyone exporting tools of wool or silk manufacture was to forfeit the tools and pounds. this statute was strictly enforced. in , tools of cotton and linen manufacture were included. 	in , all statutes against engrossing, forestalling, and regrating were repealed because they had prevented free trade and tended to increase prices, e.g. of grain, meal, flour, cattle, and other victuals. 	anyone assisting a felon (except for petty larceny) to try to escape from gaol, is guilty of felony and shall be transported for seven years. anyone assisting a person who owes or is to pay pounds to try to escape from gaol is guilty of a misdemeanor. in , prison keepers were indemnified from creditors for any escapes of debtors due to conspiracy and break out with weapons and firearms rather than due to negligence of the prison keeper, as had been occurring. 	no more than pounds of gunpowder may be kept in any building in london or westminster or suburbs thereof. later, no more than pounds of gunpowder were allowed to be kept therein for more than hours. buildings may be searched on "reasonable cause" shown to a justice of the peace. later, no more than pounds of gunpowder could be kept for more than hours near any town, or more than pounds for more than hours in any place. then no gunpowder could be conveyed by land over barrels or by water over barrels. 	it was customary for officers to take the oaths of allegiance and supremacy to any new monarch. when george i became king in , all civil and military officers, clergy, schoolmasters, and lawyers, solicitors, clerks, etc. living within miles of london had to take an oath of allegiance and a new oath that the person was not papist and agreed that no foreigners had jurisdiction in the realm, such as to excommunicate someone and thus declaring he could be legitimately killed. soon after, it was required that papists had to register their names and real estates. commissioners were appointed to make inquiries. if a person did not take the oaths or did not register, he was to forfeit / of his land to the king and / to a protestant who sued for such. this was in order to deter future rebellions against the king and efforts to destroy the protestant religion. 	as late as , there was a papist conspiracy to take the tower of london and the king, and make a catholic king. this resulted in the imprisonment of the conspirators and a new statute: persons not taking the oath of allegiance and above oath that they were not papist shall register their lands and yearly rents and pay double the land tax and , pounds. after payment, they are discharged from forfeiting / of their lands' rents for one year. 	papists enlisting in the army are liable to corporal punishment, but not death, as determined by a court martial. 	any mayor, bailiff, or other magistrate who is present at any meeting for public worship other than the church of england will lose office and is barred from any public office or employment. 	jews may not refuse suitable maintenance to their children who are christian to pressure them to convert back to judaism. 	black slaves were common for a time in london. this was a result of the voluminous triangle trade of manufactured goods from england, slaves from west africa, and sugar and tobacco from the west indies. slavery was largely abolished by judicial decision of chief justice mansfield in . 	if a sheriff does not answer for money collected for the exchequer, he shall forfeit treble damages to the aggrieved person, double the sum missing to the aggrieved person, pounds to the king, and pounds to the party who sues. if a sheriff take a fee for levying or collecting money due to the king (except d. for an acquittance) or take a sum for not levying money due, he is guilty of extortion, injustice, and oppression and shall forfeit treble damages and costs to the aggrieved person, and double the sum extorted to the aggrieved person. a sheriff may not levy more than d. for every s. of yearly income of any manor for up to pounds of income, and d. for value over pounds. 	no one may cut pine trees that are fit for masts of ship in new england without license by the queen or else forfeit pounds. later, pine trees on private property were exempted. 	citizens of great britain may sue colonial debtors by oath before british magistrates and a debtor's colonial lands and houses and negroes may be used to satisfy his debts. 	anyone pretending to act under a charter and taking subscriptions in great britain or the colonies must forfeit treble damages. 	no hats, including beaver hats, may be exported from any colony even to another colony because this has hurt british hat manufacture. the penalty is pounds. no one in the colonies except present hatmakers who are householders and journeymen may make hats unless they serve a seven year apprenticeship. no hatmaker in the colonies may have more than two apprentices at once. 	whaling ships near greenland were prohibited from returning until their hulls were full. vessels built or fitted out in america may engage in whaling. 	pig iron from the colonies may be imported free, but there may be no mill for slitting or rolling iron and no plateing-forge or other engine to work with a tilt hammer and no furnace for making steel erected or used in the colonies or else forfeit pounds. 	no paper bills of credit may be used in new england because such have depreciated. 	william blackstone lectured on law at oxford university in . as a result, the first professorship of english law was established. his lectures were published in as the "commentaries on the laws of england". they greatly influenced the american colonists and were the basis of legal education in england and america for years. they were comprehensive and covered real property, crime and punishment, court procedure, contract, corporations, and commercial law. he wrote "the great charter and charter of the forest" in . - judicial procedure - 	for actions under pounds in a superior court and actions under s. in an inferior court, the offender shall be served with process to appear in court rather than being arrested. for money at issue, an affidavit shall be taken. no more money may be taken for bail than the amount at controversy. this is to prevent frivolous and vexatious arrests. perjurers, forgers, those involved in barratry or suborning perjury, and pretenders practicing as attorneys or solicitors in the courts of law or equity shall be transported for seven years to the american colonies. unqualified people acting as attorneys or solicitors in the county court shall forfeit pounds. 	no one may practice as an attorney in the courts of king's bench, common pleas, or exchequer until he has been examined by a judge of such court on his fitness and qualifications and has taken the oath to honestly demean himself and practice according to his best knowledge and ability. the same applies to a solicitor in the equity courts. this shall not exclude persons who have been bound to an attorney or solicitor for four years. attorneys and solicitors, with consent of an attorney of another court, may participate in proceedings of such other court. no attorney may have more than two clerks bound to him at one time. attorneys may be admitted as solicitors and vice-versa. 	there were twelve common law justices of the court of the king's bench, court of common pleas, and court of the exchequer. the chief justices of all of these courts were paid partly from fees paid to the court. the other justices of these courts were paid completely by salary, which in was well over pounds per year. these justices were to continue in office even after a king died and could be removed only for good cause upon the address of both houses of parliament. the officers of these courts were attorneys. there was one justice at doctors' commons. the two chancery justices (since edward i) were the lord chancellor and the master of the rolls. the salary of the eleven masters of the court of chancery in was pounds per year. the officers of this court were solicitors. 	appeals from the exchequer could be made to a court of the king's bench and common pleas combined. appeals from common pleas could be made to the king's bench. decisions of the king's bench and other common law courts could be appealed to parliament. 	the common law courts rode circuit twice a year in five circuits and once a year in the north circuit. so an accused person could spend up to a year in gaol waiting for trial. few prisoners were granted bail. in each common law court, the law justices in banc would hear demurrers [contentions that the other party was wrong in the law]. no one with an interest in a suit, including the plaintiff and the defendant, could give evidence. there was no power to amend pleadings, so misspelling of the defendant's name, for instance, could result in dismissal of the suit. in , the pleadings and indictments ceased to be in latin. compurgation still existed for debt and detinue. 	writs of error at variance from the original record or otherwise defective may be amended to correct the defect by the court where such writ is returnable. no judgment is to be reversed for any defect in any bill or writ, excepting an appeal of felony or murder, or misdemeanor. this is to prevent delays of justice. justices of the peace may correct defects of form on appeals to them. 	plaintiffs neglecting to go to trial after an issue has been joined may be nonsuited. 	the qualification for jury service is having land with an income over rents of at least pounds, with leases for years or more, or years, or any term determinable on one or more lives. being a freeholder is not necessary. in london, the qualification is being a householder and having lands to the value of pounds. no sheriff may excuse a qualified person from jury service for money or other reward. selection of jurors for each case is to be done by some impartial person pulling their names from a box. later, persons refusing jury service could be fined. 	poor persons may be paid up to d. to give evidence against felons. 	pirates may not be tried again for the same crime or for a certain crime and high treason. when the marine force was raised, the marines were also given protection from double jeopardy. 	in chancery, a plaintiff filed a complaint and interrogatories prepared by counsel. only in chancery could there be discovery, such as interrogatories [written questions]. court officials asked the questions of witnesses without the presence of the parties or their lawyers. officials wrote down the answers in their own terms so there was no cross-examination possible. most decrees took many years to be made. 	the ordinary administrative court of first instance is that of one or two justices of the peace who issued orders in matters of public safety, public order, public morals, health, the poor, highways, water, fields, forests, fisheries, trade, building, fire, begging, and vagrancy. they examined suspicious persons and issued warrants for the removal of any person likely to become a public charge. the justice of the peace also regulated wages, servants, apprentices, and day laborers. in his judicial capacity, he tried all crimes and felonies except treason, though in practice death penalty cases were transferred to the assize justices. the justices of the peace of a hundred hold special sessions such as for appointment of parochial officers, highway disputes, and the grant of wine, beer, and spirit licenses. the appointment of overseers of the poor, authorization of parish rates, and reading of the riot act to mobs to disperse them, required more than one of the justices of the peace of the hundred to participate. all the justices of the peace of the county met four times a year at quarter sessions to hear appeals from penal sentences, to determine the county rate of tax, to appoint treasurers of the county and governors of the county prison and house of correction, to issue regulations on prices of provisions and on wages, to settle fees of the county officials, to grant licenses for powder-mills and other industries, to hear nuisance complaints such as those against parishes failing to keep their roads in repair, to make regulations for the holding of markets, to hear complaints concerning local government, and to register dissenting chapels. in more and more matters specified by statute, the quarter sessions heard appeals from the orders of individual justices of the peace instead of common law courts hearing them by writ of certiorari. the writ of certiorari allowed administrative decisions to be reviewed by the common law courts for compliance with law, competency of the court, and interpretation of the administrative law. the writ of habeas corpus appealed administrative decisions to imprison not only after arrest for criminal proceedings, but any coercive measure for enforcing an administrative order. the writ of mandamus was available for enforcing the injunctions of administrative law against towns, corporations, and all other authorities and private persons, where the ordinary punishments were insufficient. justices of the peace in rural areas were squires and in towns aldermen. 	in , justices of the peace were authorized to decide issues between masters and mistresses and their employees who were hired for at least one year. if a servant misbehaved, they could authorize reduction of wage, discharge, and hard labor at a house of correction up to one month. if a servant was not paid, he could authorize payment of wages up to pounds for an agricultural servant, and up to pounds for an artificer, handicraftsman, miner, collier, keelman, pitman, glassman, potter, or ordinary laborer. later, tinners and miners were added to the last category. in , employees of less than a year were included. 	in , justices of the peace were authorized to administer any oath for the purpose of levying penalties. 	to be a justice of the peace, one must have income of pounds a year from a freehold, copyhold, or customary estate that is for life or for a term of at least years, or be entitled to a reversion of lands leased for or or lives, or for any term of years determinable on the death of or or lives. excepted were peers, justices, and heads of colleges or vice chancellors at the universities. the justices of the peace were selected by the superintending sheriffs and lords lieutenant, the latter of whom were usually peer with a ministers' office or a high court official. no attorney or solicitor or proctor could be a justice of the peace unless the locality had justices of the peace by charter. a request for certiorari for removal of convictions, judgments, orders made by justices of the peace must be made within six months and after notice to the justice of the peace who may argue cause against granting certiorari. 	in the common law courts, trespass in ejectment served the purposes of most of the actions involving land. assumpsit covered the whole province of debt, and much more. trover more than covered the old province of detinue. trespass still served for all cases in which the defendant had been guilty of directly applying force to the plaintiff's body, goods or chattels. trespass on the case covered miscellaneous torts. replevin was still used. covenant remained in use for the enforcement of promises under seal. account gradually came under the equity jurisdiction of chancery. common law writs of dower are largely superseded by the relief given to the doweress in the courts of equity, where new and valuable rights were given to her and to her personal representatives against the heir and his representatives. the actions of indebitatus assumpsit is being extended to actions upon quasi-contract, in which the element of contract is not required e.g. quantum meruit, where a contract is implied from the facts of the case. 	mercantile law was developed by the common law courts, especially the king's bench. 	the king was to appoint the marshal of the king's bench. the marshal was to select his inferior officers to hold office as long as they "behave themselves well within". these offices had been sold by james i to a certain person, his heirs, and assigns. the marshal was to keep the prison of this court in good repair from his fees and profits of office. 	the office of sheriff was now an accessory department of the common law courts for summons, executions, summoning the jury, and carrying out the sentence of the law. 	summons for excise offenses may be left at a person's abode, workhouse, or shop as well as on his person. 	the coroner's office now investigated unusual deaths with a jury from the neighborhood elected by county freeholders. 	the last beheading was of a scottish lord in ; he had been involved in an attempt to restore the stuarts to the throne. so many people came that some overcrowded bleachers fell down and crushed about spectators. henceforth, every sentence of death was by hanging, even for peers. 	in , the process of pressing a man to death, if he refused to plead to an indictment was abolished. instead, persons accused or indicted, in great britain or america, of felony or piracy who stand mute shall be convicted of such charge. property of a felon was still forfeited to the crown. 	from on were established special procedures for speedy decisions in local courts in some areas for debts or damages under s. and imprisonment for such was limited for up to three months. otherwise, sentences were longer, and debts grew during the time in prison. when prisons were overcrowded, parliament let the inmates out if they gave up their possessions. they could go to georgia. 	in , the homes of john wilkes and others were searched for a seditious and treasonous published paper and all related papers because they had been rumored to have some relationship to the conception, writing, publication, or distribution of the paper. wilkes had such papers and was convicted of libel. he countersued for damages due to criminal trespass. the court held that general search warrants were subversive of the liberty of the subject of the search in violation of the british constitution, declared the statute void, and found for wilkes. the court of common pleas agreed on appeal and put the burden of proof on the persons searching to justify the search warrant. his decision gave support to william pitt's assertion that "every man's home is his castle". 	there were felons' prisons and debtors' prisons. sometimes they were one and the same. there was much fighting among inmates. the inmates slept on hay if lucky. there were no washing facilities and little light. counties or friends paid for their bread. they were also sold beer, which made them drunk and riotous. the sale of beer was a recognized and legitimate source of profit to the keeper. this was remedied by statute of that no sheriff or other officer may take an arrested person to a tavern or other public house or charge him for any wine, beer, ale, victuals, tobacco or other liquor without his consent and shall allow prisoners to be brought beer, ale, victuals, bedding, and linen as the prisoner sees fit. sheriffs often kept people imprisoned unless and until they paid all their fees due to the sheriff. in was founded the society for the discharge and relief of persons imprisoned for small debts for those inmates unfortunate instead of fraudulent or extravagant. legacies were often made to debtors. there was much gaol distemper fever with fatal consequences. when john howard, a grocer who had inherited wealth, but poor health, became a sheriff, he visited many gaols. when he saw the squalid conditions there, he advocated hygienic practices. in , justices of the peace were authorized to order walls and ceilings of gaols to be scraped and washed, ventilators for supplies of fresh air, a separate room for the sick prisoners, commodious bathing tubs, provision of clothes for prisoners, keeping of prisoners not below the ground, and apothecaries at a stated salary to attend and to report the state of health of prisoners. 	in , clergymen were employed in gaols to alleviate the distress of prisoners and to contribute to morality and religion. also, no longer may any fees be taken by gaol keepers or sheriffs because persons not indicted or found not guilty have been kept in prison pending payment of such fees. instead, the counties shall pay to gaol keepers up to s. d. per prisoner so discharged. 	colonials acts which infringed upon the english common or statutory law, or were against the interests of other american colonies were submitted to the privy council, which allowed or disallowed them. appeals from the colonial courts came to the privy council. 	judges in the colonies were appointed by royal governors and paid by colonial legislatures. they served at the pleasure of the king. colonial courts included superior courts of judicature, courts of assize, general gaol delivery, general sessions of the peace, inferior court of common pleas, and commissions of oyer and terminer. there were also justices of the peace, marshals, provosts, and attorney generals. there were few cases of vagrancy, theft, or homicide. this may have been because the people were few and dependent on each other, and economic opportunities were great. 	in john peter zenger, printer of the new york weekly journal, was tried for seditious libel for its criticisms and satire of the new york governor, who exceeded his powers, such as by demanding that bills from the assembly be presented to him before the council, and by arbitrarily displacing judges. seditious libel was defined as "false, scandalous, and seditious" writings. traditionally, this word "false" could mean "disloyal". the prosecution argued that truth of such criticism was an aggravation of the crime because it was more provoking of sedition, as found by star chamber cases. the defense argued for a right publicly to remonstrate abuses of power by public officials to guard against violence and destruction of liberties by men in authority. the american jurors, who were supposed to be familiar with the facts pertinent to the case, knew the truth of the paper's criticisms. they agreed with the defense that the word "false" in the definition: "false, scandalous, and seditious" writings, to mean "untrue" instead of "disloyal". so truth became a defense to seditious libel. pamphletts describing the zenger trial and acquittal were published and republished in london and the colonies. 	benefit of clergy for certain crimes was available in the american colonies to all who could read and write. for instance, t could be used in trials for manslaughter. - - - chapter : epilogue - - - in the time period after , there developed the fuel-saving kitchen range with closed-in-fire between oven and hot-water tank, hot and cold running water, the use of flushing toilets, edmund cartwright's power weaving machine, samuel crompton's mule for spinning many threads by waterpower in , james watt's steam engine with steam pushing the piston both ways as well as rotary motion and used in many kinds of factories instead of water power, henry bessimer's inexpensive low carbon steel in , iron and steel bridges and ships, drilling and use of oil and natural gas as fuel, adam smith's "wealth of nations" opining that competition of the market could distribute resources best, thomas paine's "rights of man", free trade, democracy, popular elections, secret ballots, universal suffrage, civil service without patronage, mary wollstonecraft's "vindication of the rights of women", university education for women (university of london), policemen (in london in ), clipper ships (the final development of sailing before steam), percussion caps on guns, periodic chart of chemical elements, college degrees in biology, chemistry, and physics, geology, maxwell's theory of electromagnetism, albert einstein's theory of relativity, quantum theory, laws of thermodynamics that the energy of the universe is a constant amount but entropy always increases, computers, decoding of the dna sequence, charles darwin's evolution, joseph lister's disinfectant in , edward jenner's smallpox vaccine, louis pasteur's germ theory of disease, anesthetics, aspirin, insulin, penicillin, antibiotics, surgery to replace body parts, tampon, contraceptive pill, discovery of planet uranus by observation and thence of neptune and pluto by calculation from discrepancies in uranus' orbit, hubble space telescope, big bang theory, buses (horse-drawn from with passengers), subways, trains ( ), public railway ( , goods drawn by engine and passengers by horse), steam ships, steel ships, aircraft carriers, submarines, tanks, friction matches, chewing gum, pajamas, gas street lamps, traffic lights and signs, ambulances, concrete and asphalt highways, census in , children's playgrounds, knee length dresses, chemical artificial fertilizers, substitution of steel for iron, trade unions, digital watches, wrist watches, compact disks, intelligence tests, personality tests, wool-combing machine, statistical analysis, bell curves, standard deviations, united nations, carpet sweeper, vacuum cleaner, central heating, apartment high rises, business skyscrapers, electricity, electric lights, sewing machines, water closets in richer houses (after ), cholera epidemics, sewers for waste disposal, industrial revolution factories, labor strikes, cars, tractors, charles dickens, ice boxes and refrigerators, telephones, central heating with radiators, hot water heaters by gas, gas ovens, humidifiers, canned food, four- pronged forks, suits of matching jackets and trousers, zippers, velcro, wall-to-wall carpeting, popular elections, airplanes, photography, record players, frozen food; cast iron kitchen range for cooking, baking, and boiling; radio, television, plastics, submarines, economics, multinational corporations, weather forecasting, braille, airplanes, space ship to moon, factory assembly lines, washing machines, dishwashers, sewing machine, microwave ovens, copier machines, dna evidence, nuclear bomb and nuclear energy, guided missiles, quartz watches, bicycles, artificial insemination and invitro fertilization, investment advice, retirement planning, amusement parks, catalogue buying, labor contracts, childrens' summer camps, teenage culture, synthetic materials, typewriters, cardboard boxes, marketing studies, factory assembly line, gene-mapping, animal cloning, internet, hiking and camping trips, world travel vacations, telegraph, word processing, gas, oil, research, credit cards, dental floss, camcorders, mass production, nursing homes, cameras, copy machines, wheelchairs, hospital operations, artificial limbs, organ transplants, pharmacies, public circulating libraries, children's playgrounds, cosmetic surgery, physical exercising equipment, vitamin pills, sports clubs, condominiums, molecules, chromosomes, observatories, radar, sonar, nutrition, supermarkets, disability insurance, liability insurance, chemical fertilizers, ddt, record players, video tape recorders, retirement homes, movies;, planned obsolescence, box-spring mattresses, brain scans, x-rays, organized professional sports, dry cleaners, foreign embassies, psychiatry, veterinarians, drug abuse, wage garnishment, tractors, lawnmowers, breeding zoos, world wars, nuclear deterrence, fingerprinting, forensic evidence, toxic waste, acid rain, elevators, picture windows, sewing machines, automation, cybernetics, pizza delivery, health insurance, walt disney, satellite transmission, radiocarbon dating, ice cream, air conditioning, ball point pens, school blackboards, bullets in s, electronic mail, first law of thermodynamics: the conservation of energy, the second law of thermodynamics: potential energy turns into high-temperature thermal energy and finally into low-temperature thermal energy, but these processes are not reversible. the science of philology, on the meaning and history of words began the concept of a natural development of languages which conflicted with the theological view that god had created all the different languages when he punished man for trying to build an edifice to heaven by destroying the tower of babel and dispersing the people into all parts of the world with different languages derived from the original: hebrew, so that they could not communicate with each other. the science of geology developed the concept of tremendous changes in the earth's surface which altered horizontal layers of deposits, in which there were fossils, which challenged the biblical notion of a world and all its animals created in a week. in , lord henry cavendish proved that the sole result of mixing hydrogen with oxygen was water, thus disproving the theory of the four elements of air, earth, fire, and water. in the united states, there was no king, a separation of the executive, the legislative, and the judicial; a separation of church and state, and no aristocratic titles. in this time period the development of law includes abandonment of common law crimes such as seditious libel in the united states, negligence and duty of due care in the united states replacing the english strict liability for torts, substitution of the caveat emptor doctrine for the english sound price doctrine in contract law in the united states, truth as a defense to charge of libel in the united states, repeal in england of seven year requirement for apprentices in , married women's property acts beginning : ( . right to sue and be sued, . right to her own earnings, . right to own real and personal property, . right to make contracts . right to stay in family homestead with children, right to custody of children if husband abandons her), divorce in england by courts in , in united states extension of grounds for divorce beyond adultery, bigamy, and desertion to cruel treatment, habitual drunkenness, and conviction of a felony and finally no-fault divorce, decline of father's paramount claim to the custody of his minor children in the absence of a strong showing of misconduct or unfitness, tender years doctrine (in england in mother to have custody of child under seven and to have access over seven) and then best interests of child doctrine in custody disputes, legal obligation for parents to support their minor children, adoption about the s; in england allowance of women attorneys in , women to vote in , adultery by a husband to be adjudged as culpable as adultery by a wife in , the rights of a mother over her child to be equal to those of a father in , and the rights of a woman to property to be the same as those of a man in ; child labor laws, full religious freedom with admission of nonconformists to the two universities in england in , probable cause instead of suspicion for search and seizure, mandamus, rule against perpetuities, mandatory secondary education, kidnapping, false impersonation, liens, obscenity, estoppel for detrimental reliance on a promise, unjust enrichment, pensions, trademarks and unfair competition, antitrust, privacy, freedom of thought, freedom of speech, freedom of the press, bankruptcy, civil rights, union organizing laws, laws on discrimination due to race, sex, ethnic or national origin, disability, age, and sexual preference; sexual harassment and stalking laws, product liability, international law, environmental laws protecting air and water quality, workers compensation, unemployment compensation, controlled substances, intellectual property law; and contingency fees only in the united states, in england, there was an end of trial by combat in , of compurgation in , and of benefit of clergy. in , there were offenses in england with the death penalty, including stealing from a dwelling house to the value of s., stealing from a shop to a value of s., and stealing anything privily from the person. the penalty for treason was still drawing and quartering. it was a privilege of the peerage to be immune from any punishment upon a first conviction of felony. as of , church courts could no longer decide cases of perjury; as of , no cases of defamation, but only church matters. hearsay rules and exceptions were developed in the s. in , jurors were to have no knowledge except the evidence accepted at court. in , counsel for a person indicted for high treason could examine and cross- examine witnesses. in , a defendant could see the written record of evidence against him. in , the accused was allowed to give evidence. pleaders do not have to specify the form of action relied on, but rather give facts which give rise to a cause of action. judicial procedure includes grand juries, which hear evidence, court transcript by court stenographers, discovery, depositions, and presumption of innocence (after salem witch trials in the united states). the united states changed judicial procedure in several respects: parties were allowed to testify, writ pleading was abandoned, and prisons were used for reforming prisoners. debtors prisons were abolished. also, the law was seen not as divinely inspired eternal law to be found by judges, but law made by man to suit the times. state judges served for life during good behavior; they could be removed by the procedure of impeachment. in some states, judges were elected. there were privileges on testimony such as attorney-client, priest-confessor, and husband- wife. - - - appendix: sovereigns of england - - - accession - name - alfred the great edward the elder son of alfred aethelstan son of edward the elder edmund son of edward the elder eadred son of edward the elder eadwig son of edmund edgar son of edmund edward the martyr son of edgar aethelred the unready son of edgar edmund ironside son of aethelred the unready canute harold i harefoot son of canute hardicanute son of canute edward the confessor son of aethelred the unready harold ii william i, the conquerer william ii son of william i henry i (and matilda) son of william i stephen henry ii (and eleanor) grandson of henry i richard i, the lion-hearted son of henry ii john son of henry ii henry iii son of john edward i (and eleanor) son of henry iii edward ii son of edward i edward iii son of edward ii richard ii grandson of edward iii henry iv henry v son of henry iv henry vi son of henry v edward iv edward v son of edward iv richard iii henry vii (and elizabeth) henry viii son of henry vii edward vi son of henry viii mary daughter of henry viii elizabeth i daughter of henry viii james i charles i son of james i oliver cromwell charles ii son of charles i james ii son of charles i william and mary william iii anne granddaughter of james ii george i george ii son of george i george iii son of george ii - - - bibliography - - - . ancient laws and institutes of england, printed by command of his late majesty king 	william iv under the direction of the commissioners of the public records of the 	kingdom, vol ; . . the laws of the kings of england from edmund to henry i, a.j. robertson, . . the statutes of the realm . statutes at large . a treatise of the lawes of the forest, john manwood, . history of english law; william holdsworth . history of english law, pollack and maitland, . anglo-saxon charters, a. j. robertson, . franchises of the city of london, george norton, . borough customs vol. , selden society, . royal writs in england from the conquest to glanvill, selden society, . lawsuits in time of wm i, selden society . treatise on the laws and customs of the realm of england, ranulph d. glanvill, . calendar of wills, court of husting, london; ed. reginald r.sharpe . calendar of early mayor's court rolls of the city of london, ad - , ed. a. h. 	thomas . legislation of edward i, t.f.t. plunkett, . english historical documents, ed. david douglas . bracton on the laws and customs of england, henry of bratton, . chaucer's world, edith richert, . john, king of england, john t. appleby, . a collection of eighteen rare and curious historical tracts and pamphletts, 	edinburgh, priv. print. . doctor and student, christopher st. germain, . readings in western civilization, george kuoles, . social england, ed.: h.d. traill, st. john's college, oxford; vol. and , . . augustine of canterbury, margaret deanesly, . the venerable bede, ecclesiastical history of the english nation . political history of england; t. hodgkin . alfred the great, helm, . domesday, a search for the roots of england, m. wood, . the english church - ; f. barlow, . life on the english manor; h.s. bennet; . the english medieval town; colin platt; . london weavers' company, francis consitt, . the gild merchant, charles gross, . life and times of roger bacon . oxford book of oxford, jan morris, . a history of oxford university, vivian green, . lives of the lord chancellors, campbell, . gilds and companies of london, george unwin, . a history of technology, charles singer, - . edward i, michael prestwich, . franchises of the city of london, george norton, . the works of alfred . salisbury plain, r. whitlock, . william the conqueror, f.m. stenton, . life of william the conqueror, t. roscoe, . elizabeth i, anne somerset, . queen elizabeth, katherine anthony, . industry in england, h.deb. gibbons, . henry ii, w. l. warren, . edward i, l.f. salzman, . the yorkist age, paul kendall, . edward the confessor, frank barlow, . the livery companies of the city of london, w. carew hazlitt, . parliamentary representation of the city of coventry, thomas whitley, . the government of england under henry i, judith green, . lives of the queens of england, agnes strickland, . the oldest version of the customs of newcastle, c. johnson, . charter of henry ii to the burgesses of newcastle, a. m. oliver, . the charters and letters patent granted by the kings and queens of england to 	bristol, samuel seyer, . magna carta, legend and legacy, william swindler, . chronicles and memorials of great britain and ireland during the middle ages: letters and papers of richard iii and henry vii . sons of the conqueror, g. slocombe, . the spirit of the classical canon law, richard helmholz, . open fields, charles orwin, . the medieval foundation of england, arthur bryant, . from alfred to henry iii, - , christopher brooks, . the anglo-norman nobility in the reign of henry i: the second generation, charlotte 	newman, . the birth of britain vol. , winston s. churchill, . medieval london, gordon hoime, . a history of london, stephen inwood, . tudor england, john guy, . reign of henry vii, r. storey, . elizabethan life in town and country, m. st. claire byrne, . the elizabethan world, edited by norman kotner, . the evolution of modern medicine, william osler, . shakespeare's england, oxford university press, . the lion and the throne, catherine bowen, . johnson's england, ed. a.s. turberville, . education in renaissance england, kenneth charlton, . the scholastic curriculum of early seventeenth-century cambridge, william costello, 	 . . english people on the eve of colonization - , wallace notestein, . sir walter ralegh, willard wallace, . sir walter ralegh, robert lacey, . constitutional documents of the reign of james i, j.r. tanner, . history of the english people, volumes iii and iv, green . hume's history of england, volumes v and vi, david hume . english society - , keith wrightson, . the century of revolution - , christopher hill, . charles i and the puritan upheaval, allen french, . charles i, christopher hibbert, . constitutional documents of the puritan revolution - , samuel gardiner, . life and work of the people of england in the th century, dorothy hartley et al, . home life under the stuarts, elizabeth godfrey, . cromwell the lord protector, antonia fraser, . the greatness of oliver cromwell, maurice ashley, . acts and ordinances of the interregnum - , c.h.firth & r.s.rait, . history of the english people, john r. green, . . a social and industrial history of england, f.w. tickner, . a history of everyday things in england, marjorie and chb quennell, . the english, norman f. cantor, . a concise economic history of britain, john clapham, . world book encyclopedia . encyclopedia britannica . history of the english constitution, rudolph gneist, . the life of the law, alfred knight, . norton anthology of english literature, ed. m.h.abrams, . the bank of england, john clapham, . the honorable company, a history of the east india company,john keay, . a history of british india, w.w. hunter, . the bank of england, john clapham, . early speculative bubbles and increase in the supply of money, m.a. thesis, douglas 	e. french, . royal charles, antonia fraser, . charles ii, ronald hutton, . the life and times of charles ii, christopher falkus, . life in a noble household - , gladys thomson, . the weaker vessel, antonia fraser, . a constitutional and legal history of medieval england, bryce lyon, . the laws respecting women, j. johnson, . mediaeval england, mary bateson, . elizabeth: the struggle for the throne, david starkey, . a social history of england, asa briggs, . the year , robert lacey, . a history of chemistry, charles-albert reichen, . john locke, economist and social scientist, karen vaughn, . becoming visible, women in european history, ed. bridenthal & koonz, . wonder book of the world's progress; inventions and customs, henry williams, . industrial revolution in the eighteenth century, paul mantoux, . eighteenth century england, dorothy marshall, . georgian england, a.e. richardson, . the pageant of georgian england, elizabeth burton, . the georgian gentleman, michael brander, . england in the eighteenth century, j.h. plumb, . london life in the eighteenth century, m. dorothy george, . law and jurisprudence in american history, stephen presser & jamil zainaldin, . england in the age of hogarth, derek jarrett, . the first four georges, j.h. plumb, . the review of american colonial legislation by the king in council, elmer russell, 	 . select pleas of the crown, f.w. maitland, . select pleas in manorial and other seignorial courts, f.w.maitland, . the forms of action at common law, f.w. maitland, . equity, f.w. maitland . the story of the declaration of independence, ira g. corn, jr., . internet medieval sourcebook . out of the fiery furnace video, robert raymond . a history of chemistry, charles reichen, . seven ideas that shook the universe, nathan spielberg, . a history of the warfare of science with theology in christendom, andrew white, . american political and social history, harold faulkner, . essays in science, albert einstein, . the character of physical law, richard feynman, . dictionary of national biography, george smith, . elizabeth i: collected works, ed. leah marcus et al, . the crime of galileo, giorgio de santillana, . from copernicus to einstein, hans reichenbach, . the horizon book of the elizabethan world, ed. richard ketchum, . tower of london, christopher hibbert, . tudor royal proclamations, ed. p.l. hughes & j.f. larkin, . selected historical essays of f.w.maitland, ed. helen cam, . lloyd's of london, raymond flower & michael jones, . weather, philip thompson etc., . constitutional history of england, william stubbs, . hillforts of england and wales, james dyer, . the last two million years, reader's digest association, . london: the civic spirit, robert goldston, . domestic life in england, norah lofts, . descartes, tom sorell, . life in the english country house, mark girouard, . extraordinary origins of everyday things, charles panati, . god's peace and king's peace: the laws of edward the confessor, bruce o'brien, . the bill of rights, irving brant, . issac newton, adventurer in thought; a. rupert hall, . the life of issac newton, richard s. westfall, . a history of the circle, ernest zebrowski, . the world of water, j. gordon cook, . the western intellectual tradition, j. bronowski & mazlish, . human accomplishment, charles murray, . magic, myth and medicine, d.t.atkinson, m.d., . scientists who changed the world, lynn and gray poole, . the new treasury of science, ed. harlow shapley, etc., . food in history, reay tannahill, . home, a short history of an idea, witold rybczynski, . english villagers of the thirteenth century, george c. homans, . pelican history of england: . roman britain, i.a. richmond, . the beginnings of english society, dorothy whitelock, . english society in the early middle ages, doris stenton, . england in the late middle ages, a.r. myers, . tudor england, s.t. bindoff, . england in the seventeenth century, maurice ashley, the end index abbey; abbot, abbess; abduction; accessory; account; administrator; admiralty; adultery; adverse possession; adulterated; advowson; aethelbert; aethelred; affidavit; agreement; agriculture; augustine. st.; aids; alderman; ale; alehouses; alfred; alienate; aliens; allegiance; alms; amerce; america; anabaptist; ancient; anglo-saxons; anglo-saxon chronicles; annulment; apothecaries; apparel laws; appeal; appellate; apprentices; appurtance; archbishop; architect; aristotle; arkwright, richard; arraign; arson; arthur; articles of religion; artificer; artisan; assault; assay; assign; assize; assizes; assumpsit; astrology; at pleasure; atheism; attainder; attaint; attorneys; babies; bachelor; bachelor of arts; back-berend; bacon, francis; bacon, roger; bacteriology; bail; bailiff; baker; ballads; bank of england; bankruptcy; baptist; bar; barber; barber-surgeon; bargain and sale; barons; baron court; barristers; bastard; bath; battery; beadle; beating; becket; beer; beggar; benefit of clergy; benevolence; beowulf; bequeath, bequest; bible; bigamy; bill; bill of attainder; bill of exchange; bill of rights; billet; birmingham; bishops; black death; blackstone, william; blinding; blodwite; blood-letting; book of common prayer; bordars; borough; boston; bot; boyle, robert; bracton, henry de; brass; brawling; breach; breach of the peace; bread; brewster; bribery; brick; bridge; bristol; brokers; bullock, case of; burgess; burglary; burh; burial; burning; butcher; butler; calais; calvin; cambridge university; canals; cannon; capitalism; carbon dioxide; carpenter; carriages; carucage; carver; castle; castle-guard; cathedral; catholics; cattle; cavaliers; cecil, william; censorship; ceorl; certiorari; challenge; champerty; chancellor; chancery; chancery court; charter; chattel; chaucer, geoffrey; chemistry; chevage; chief justice; chief justiciars; child; child abuse; children; childwyte; christian; chivalry; christmas; church; church of england; church sanctuary; cicero; circuit; citizen; city; civil; civil courts; civil war; claim; clans; class; clergy; clerics; cloth-maker; coaches; coal; coffee houses; coin; coke, edward; college of physicians and surgeons; colonies; commission; common land; common law; commons, house of; commonwealth; compurgation; compurgator; confession; congregationalists; conqueror; consideration; constable; constitution; contract; conventile; conveyance; conviction; cooper; copernicus; copper; copyhold; copyrights; cordwainer; coronation charter; coroner; corporation; corruption of the blood; council; counterfeit; county; county courts; courtesy; court of common pleas; court of high commission; court of king's bench; courtesy; court martial; covenant; coverture; coventry; craft; craft guild; cranmer, thomas; creditor; crime; criminal; cromwell, oliver; cromwell, thomas; crown; cupbearer; curfew; currier; custody; customary tenant; customs; damages; danegeld; danes; darrein presentment; daughter; death; death penalty; debt, debtors; deceased; decree; deed; deer; defamation; defendant; demesne; denizen; deodand; descendant; descartes, renee; desertion; detinue; devise; dispensary; disseisin; dissenter; distraint; distress; divorce; doctorate; dog; doomsday book; doublet; dower; dowery; drake, francis; drover; drunkenness; duel; during good behavior; duties; dwelling; dyers; earl; east india company; easter; ecclesiastic; edith; education; eleanor, wife of edward i; eleanor, wife of henry ii; election; electricity; elizabeth, wife of henry vii; embroiderer; enclosure; english; engrose; episcopal church; equity; equity court; erasmus; escape from gaol; escheat, escheator; escuage; esquire; established church; estate; estate administration; estate tail; euclid; exchequer; excommunication; excise tax; executor; export; extent; eyre; factory; fair; father; fealty; fee; fee simple; fee tail; felony; feme covert; feme sole; feoff; fermat, pierre; feudal; feudal tenures; fihtwite; fine; fire; fire-fighters; fishermen, fishmonger; flint; flogging; flying shuttle; folkmote; food riots; footmen; forced loans; forced marriage; forestall; forest charter; forestall; forests; forfeit; forgery; forms of action; fornication; fortifications; foster-lean; france; frank-almoin; franklin, benjamin; frankpledge; fraternity; fraud; freedom of speech; freehold, freeholder; freeman; freemason; freewoman; friar; frith guild; fuller; fustian; fyrd; fyrdwite; gage; galilei, galileo; gambling; games; gaols; gaol distemper; gawaine; gentleman; gentry; geology; georgia; german, christopher st., gift; gilbert, william; guildhall; guilds; gin; glanvill; glass; glorious revolution; gloves; god; godfather; gold; goldsmiths; good parliament; goods; government; grain; grammar schools; grand assize; grand jury; grand tour; grants; grave; gravitation; greek; gresham, thomas; grithbrice; guardian, guardianship; guenevere; hair; hall; halley, edmond; hamsocne; hand-habbende; harboring; harrington, james; harvard college; health; heir; heresy; heriot; hidage; hide; high commission court; hilda; hillforts; holidays, holydays; homage; homicide; hooke, robert; horse; horse racing; hospitals; house-breaking; house-holder; house of commons; house of lords; houses; houses of correction; hue and cry; humanism, humors; hundred rolls; huygens, christian; hundred; hundred courts; hunt; husband; hustings court; hut; illegitimacy; illness; illuminators; impeach; import; imprisonment; incest; income tax; independents; indenture; indictment; industry; infangthef; inflation; inheritance; innkeeper; inns of court; inoculation; inquest; insurance; interest; interrogatory; intestate; iron; itinerant; jail; jesus; jews; joan of arc; joint tenants; joint-stock companies; jointure; jones, inigo; journeyman; judge; jurisdiction; jurors; jury; justice; justices in eyre; justices of assize; justices of the peace; justiciar; kent county; keplar, johannes; kill; kin, kindred; king; king alfred the great; king charles i; king charles ii; king edward i; king edward the confessor; king george iii; king henry i; king henry ii; king henry vii; king henry viii; king james i; king james ii; king john; king richard the lion-hearted; king william and mary; king william i, the conqueror; king's peace; knight; knight's fee; knights' guild; knitting; laborer; ladies; land; landlord; land-owner; larceny; lastage; latin; law merchant; lawsuit; lawyer; laxton; lay; leap year; lease; leather; leet court; legacy; legislation; legitimacy; leibniz, christian; leicester; letters; libel; liberi quadripartitus; library; license; life; life-estate; lighthouse; limb; linen; lion of justice; literacy; literature; littleton, thomas; livery; lloyds; locke, john; london; long parliament; longitude; lord; lords, house of; loriner; lottery; loyalty; machine; magistrates; magna carta; magnate; maiden; mail; majic; malicious prosecution; maintenance; manchester; manor; manor courts; manufacturing; manumission; marco polo; market; marriage; marriage agreement; marriage portion; marshall; marquise; massachusetts; master of arts; masters; matilda; mayflower; mayor; maypole; mead; measures; meat; medicine; melee; member; merchandise; merchant; merchant adventurers; merchant guilds; merchet; merciless parliament; mercy; merton; mesne; methodists; microscope; middlesex; midwives; military service; militia; miller; minister; minor; minstrels; miskenning; moat; model parliament; monarchy; monasteries; money; moneyer; monks; monopoly; moot; more, thomas; morgen-gift; morning gift; mort d'ancestor; mortgage; mortmain; mother; murder; mutilation; napier, john; navy; newcastle- on-tyne; new england; new model army; newspapers; newton, issac; new world; nobility; noblemen, nobles; nonconformists; normans; novel disseisin; nuisance; nun; oakham, william; oaths; offender; oil; one hundred year war; open field system; ordeal; ordinance; orphans; outlaw; oxford university; oxygen; papists; parent; parishes; parliament; parliament of saints; partition; party; pascal, blaise; passport; patents; pauper; pawn; peasant's revolt; peers; peine forte et dure; penalty; penitentiary; penn, william; pennsylvania; penny; per stirpes; perjury; personal injury; personal property; petit serjeanty; petition; petition of right; physicians; piers plowman; pigherds; pilgrim; pillory; pipe rolls; piracy; pirate; plague; plaintiff; plato; plays; pleading; pleas; police; pontage; poor; pope; popery; population; port; portreeve; portsoken ward; posse; possess; postal system; post mortem; pottery; praecipe in capite; pressing; presbyterians; prescription; presentment; priest; printing; prison; privy council; privy seal; probable cause; probate; proclamation; promise under seal; promissory note; property; prosecutor; prostitutes; protectorate; protestants; puritans; purveyance; putting out system; quakers; quaranteen, quarter sessions; queen; queen elizabeth i; queen mary; queen's bench; quo warranto; rack; ralegh, walter; rape; ray, john; real action; recognition; reeve; reformation; regrate; release; relief; religion; remainder; renaissance; rent; replevin; residence; restoration; reversion; revolt; reward; rights; riot; riot act; roads; robbery; robin hood; roemer, olaus; roman law; root and branch petition; roundheads; royal court; royal navy; royal society; royalists; rump parliament; russia; sacrament; sacrifice; sailor; sake and soke; sale; salt; saltworks; sanctuary; sandwich; saxon; scaetts; scavage; scholar; school; science; scolds; scot; scrofula; scutage; seal; seamen; searchers; search warrant; sedition, seditious; seisin; self- defense; self-help; separatists; serf; serjeanty; servant; service; servitude; settlement; sewer; shakespeare, william; shaving; sheep; shelley's case; sheriff; sheriff's turn; shillings; ships; shipwreck; shire; shire courts; shire-gemot; shoemaker; short parliament; shrine; sickness; silver; slade's case; slander; slave; slingshot; smallpox; smith; smithfield; socage; sokemen; soldiers; solicitor; son; spanish armada; speedy pursuit; spinning; spinning jenny; spinning wheel; spinsters; spouse; st. augustine; st. germain; st. lazarus; st. paul's church; statute of laborers; squire; staple; star chamber court; strangers; steam; steel; stengesdint; stevinus; steward; stock-and-land lease; stocking-frame knitters; stocks; stolen goods; stone; stonehenge; straw; streets; subtenants; successor; sue; suit; summary; summon; sunday; supporters of the bill of rights society; surety; surgery; surname; swearing; swords; tale; tallage; tanner; tavern; tax; tea; team; ten commandments; tenancies; tenancy, tenant; tenants in common; tenement; tenure; term; testament; thames, river; theft; thegn; theodore; theology; theow; thermometer; thirty years' war; tile; tiler; tin; title; tolls; tories; torricelli, evangelista; tort; torture; tournament; tower hill; tower of london; town; town-reeve; trades, tradesmen; transportation; treason, high and petit; treasure trove; treasury; trespass; trespass on the case; trial by combat (battle); trover; turnpike; twelve; tyne; umbrella, unitarians; university; usury; use-trust; vagrants, vagrancy; vassal; verderer; verdict; vessels; vikings; vill; villages; villeinage; villeins; vintner; virginia; wall; wallis, john; war of the roses; ward, wardship; wardmoot; wardrobe; warrantor, warranty; waste; water; watermen; watermill; waterwheel; watt, james; wealthy; weapon; weaving, weavers; webs; wed; wedding; weights; weir; well; wer, wergeld; wesley, john; westminster; whigs; whipping; white tower; whitsuntide; widows; wife; wife-beating; wills; winchester; windmills; window tax; wine; witch; witchcraft; wite; witan; witanagemot; witnesses; wives; wolsey, thomas; wyclif, john; woman-covert; women; wool; wounding; writs; writs of assistance; writs of error; year books; yeomanry, yeomen produced from images generously made available by the internet archive.) the law and the poor by his honour judge edward abbott parry author of "dorothy osborne's letters," "judgments in vacation," "what the judge saw," "the scarlet herring," "katawampus," etc. "laws grind the poor and rich men rule the law." oliver goldsmith: "the traveller." london smith, elder & co., , waterloo place to the man in the street this volume is dedicated, in the pious hope that he will take up his job and do it. contents chap. page introduction ix references xv i. past and present ii. the ancients and the debtor iii. of imprisonment for debt in england iv. how the machine works v. workmen's compensation vi. bankruptcy vii. divorce viii. flat-traps and their victims ix. poverty and procedure x. crime and punishment xi. the police court xii. landlord and tenant xiii. the two public houses: i. the alehouse xiv. the two public houses: ii. the workhouse xv. remedies of to-day xvi. remedies of to-morrow index introduction "but, say what you like, our queen reigns over the greatest nation that ever existed." "which nation?" asked the younger stranger, "for she reigns over two." the stranger paused; egremont was silent, but looked inquiringly. "yes," resumed the stranger after a moment's interval. "two nations; between whom there is no intercourse and no sympathy; who are as ignorant of each other's habits, thoughts, and feelings, as if they were dwellers in different zones, or inhabitants of different planets; who are formed by a different breeding, are fed by a different food, are ordered by different manners, and are not governed by the same laws." "you speak of----," said egremont, hesitatingly. "the rich and the poor." benjamin disraeli: "sybil, or the two nations." the rich have many law books written to protect their privileges, but the poor, who are the greater nation, have but few. not that i should like to call this a law book, for two reasons: firstly, it would not be true; secondly, if it were true, i should not mention it, as i want people to read it. you cannot read law books, you only consult them. a law book seeks to set out the law, the whole law, and nothing but the law on the subject of which it treats. there are many books on poor law, there are hundreds of volumes about the poor, and many more about the law, but the law and the poor is a virgin subject. it is a wonder that it should be so because it is far more practical and interesting than either of its component parts. it is as if poetry had dealt with beans or with bacon and no poet had hymned the more beautiful associations of beans and bacon. in the same way the law and the poor is a subject worthy of treatment in drama or poetry, but that that may be successfully done someone must do the rough spade work of digging the material out of the dirt heaps in which it lies, and presenting it in a more or less palatable form. when this has been done the poet or the politician can come along and throw the crude metal into the metres of sonnets or statutes or any form of glorious letters they please. from the very earliest i have taken a keen interest in this subject. i remember well when i was a schoolboy the profound impression made upon me by samuel plimsoll's agitation to rescue merchant seamen from the horrible abuses practised by a certain class of shipowner. my father, serjeant parry, was engaged in litigation for plimsoll, and i heard many things at first hand of that great reformer's hopes and disappointments. there were a class of traders known as "ship knackers," who bought up old unseaworthy vessels and sent them to sea overloaded and over-insured. plimsoll, for years, devoted himself to prevent this wickedness. there was the usual parliamentary indifference, the customary palavering and pow-wowing in committees until, after six or seven years of constant fighting, the public conscience was awakened, and, in , disraeli produced a merchant shipping bill. but then, as now, there was no parliamentary time for legislation dealing with the poor, and the bill was one of the innocents to be sacrificed at the annual summer massacre. this would have been the end of all hope of reform had not samuel plimsoll, in a fine frenzy of rage and disgust, openly charged the government with being parties to the system which sent brave men to death in the winter seas and left widows and orphans helpless at home, "in order that a few speculative scoundrels, in whose heart there is neither the love of god nor the fear of god, may make unhallowed gains." this was unparliamentary enough, but it was allowed to pass. it was when he began to give the names of foundered ships and their parliamentary owners and, in his own words, "to unmask the villains" who sent poor men to death and destruction, that he was promptly called to order, and, refusing to withdraw, left the house. the result of his outburst was entirely satisfactory. the government were obliged to bring in another bill and to pass it without delay. many years later the unauthorised radical programme of mr. joseph chamberlain aroused my youthful enthusiasm, and i spent much of my then ample leisure as a missionary in that cause. we soon lost our great leader, who went away to champion what he considered greater causes, but he was one of the first english statesmen in high places to make his main programme a reform of the law in the interests of the poor, and he left behind him mournful but earnest disciples who have not yet found such another leader. the workmen's compensation act will always, i think, be regarded as one of his greatest achievements, and mauled and mangled as it has been in the law courts it remains the most substantial benefit that the poor have received from the legislature in my lifetime. twenty years' service in urban county courts has naturally given me some insight into the way in which the law treats the poor and the real wants of the latter. i agree that such a book as this would be better written by one who had actual experience of the life of the poor, rather than the official hearsay experience which is all that i can claim to have had. i think the great want of labour to-day is an attorney-general, a man who having graduated in the workshop comes to the study and practice of the law with a working man's knowledge and ideals, and gaining a lawyer's power of expressing his wants in legal accents, raises his voice to demand those new laws that the poor are so patiently awaiting. if there be such a one on his way and this volume is of any small service to him, it will have more than fulfilled its purpose. originating in a series of essays published in the _sunday chronicle_, it has grown into a more ambitious project, and is now, i trust, a fairly complete text-book of the law as it ought not to be in relation to the poor. in my endeavour to please the taste of the friend to whom i have dedicated this book i have dispensed with all footnotes, but i have added an appendix of references in case there may be any who might wish to test the accuracy of statements in its pages. "thus," as my lord coke says, "requesting you to weigh these my labours in the even balance of your indifferent judgment i submit them to your censure and take my leave." edward a. parry. sevenoaks, . references _the number of the page and the number of the line counting from the top are given in the left-hand column._ introduction page line xi hansard. . vol. , col. . xiii coke's "institutes." i. "to the reader." chapter i job xiii. . "the compleat constable. directing all constables, headboroughs, tithing men, churchwardens, overseers of the poor, surveyors of the highways and scavengers in the duty of their several offices, according to the power allowed them by the laws and the statutes." rd edition. london. printed for tho. bever at the hand and star, near temple bar. . "shakespeare's europe. unpublished chapters of fynes moryson's itinerary, being a survey of the condition of europe at the end of the sixteenth century. ." at p. . smollett. "roderick random." chap. xxiii. the trial of richard weston at the guildhall of london for the murder of sir thomas overbury, th october, james st, a.d. . howell's "state trials," ii., . boswell's "life of johnson." edited by birkbeck hill. ii. . boswell's "life of johnson." iv. . _manchester guardian_, saturday, january th, . chapter ii kings iv. -- . grote's "history of greece." part ii., c. . hunter's "roman law." rd edition. p. . fynes moryson. "shakespeare's europe." chapter iii imprisonment for debt.--the main authorities for the history of imprisonment for debt are the reports of the three commissions. . report of commission on the present state of the laws respecting bankrupts and insolvent debtors. . report from the select committee on the debtors act with minutes of evidence. . report on select committee on debtors (imprisonment) with minutes of evidence. the hansard reports of the debates over the bills of , , and , contain many clear statements of the argument for, and against, abolition. "the law of executions, to which are added the history and practice of the court of king's bench." by the late lord chief baron gilbert. smollett. "roderick random." chap. lxi. for the story of the clerkenwell spinster and the debtor, see sir walter besant's "london in the eighteenth century," chap. v., "debtors' prisons," at p. . this volume contains excellent accounts of the law and the poor in the eighteenth century. december th, . lord cottenham introduced bill to abolish arrest on mesne process. & vict. c. . thackeray. "the virginians." vol. i. chap. xlv. duke de cadaval's case. hansard. . vol. , p. . j. b. atlay. "the victorian chancellors." i., . lord brougham's speech. hansard. . vol. , p. . lord brougham's speech. hansard. . vol. , p. . see judgment of sir george jessel, m.r., in _marris_ v. _ingram_, ( ) law reports, chancery division, p. . sir robert collier's speech. hansard. . vol. , p. . chapter iv "debtors' imprisonment report, ." appendix , at p. . basil montagu. "opinions of paley burke and dr. johnson on imprisonment for debt." jeremy taylor. "a prayer to be said by all debtors, and all persons obliged whether by crime or contract." "holy living and dying." chapter v there are many books on the workmen's compensation act. that by mr. adshead elliott is as clear and comprehensive as any. the hansard debates on the bills of and are full of interest. john chipman gray. "nature and services of law." sections - . _the attorney-general_ v. _the edison telephone co. of london, ltd._, ( ) law reports, queen's bench division, p. . gilbert e. roe. "our judicial oligarchy." mr. asquith's speech on employers' liability bill. hansard. . vol. , p. . see the judgments of lord halsbury and lord davey, in _lysons_ v. _andrew knowles_, ( ) law reports, appeal cases, p. . chapter vi jeremiah xxii. . see "the living wage," by philip snowden, m.p., for a sensible, practical statement of the socialist ideal. psalms xxxv. . carlyle. "chartism." chap. i. hansard. . vol. , p. . chapter vii the chief authority for this chapter is "the report of the royal commission on divorce and matrimonial causes," published in , cited below as d. c. notes on the reformatio legum ecclesiasticarum. d. c., iii., pp. - . appendix ii., p. . j. b. atlay. "the victorian chancellors." ii., . jane and fred's case. d. c., ii., . george and mary's case. d. c., ii., . note by mrs. tennant. d. c. report, . mr. justice bargrave deane's evidence. d. c., i., . alfred and anna's case. d. c., ii., . john and catherine's case. d. c., ii., . norah's case. d. c., ii., . divorce in france. m. mesnil's evidence. d. c., iii., . mr. dendy's evidence. d. c., i., . german divorce. dr. carl neuhaus's evidence. d. c., iii., . scot's divorce. mr. lamier's evidence. d. c., i., . selden's "table talk." lxxxiv. d. c. report, part ix., par. . chapter viii carlyle. "latter day pamphlets." "parliament." dickens. "oliver twist." chap. li. arthur hugh clough. "the latest decalogue." chapter ix george eliot. "the mill on the floss." book ii., chap. ii. _lysons_ v. _andrew knowles_, ( ) law reports, appeal cases, p. . tomkin's "law dictionary," _sub tit._, "barraster." see lord sumner's judgment in _dallimore_ v. _williams and jesson_, _times_ newspaper, saturday, march th, . swift. "gulliver's travels." "a voyage to the houyhnhnms." crabbe. "the borough." letter vi. as to french conciliation courts, see poincaré, "how france is governed," chap. x., "justice." piers plowman. "the vision of the field full of folk." chapter x sydney smith. "counsel for prisoners." _edinburgh review_, . bentham. "a treatise on judicial evidence." . book i., chap. ii., p. . thackeray. "the case of peytel." "paris sketch book." dickens. "why?" "miscellaneous papers." ii., . hansard. . vol. , p. . hansard. . vol. , p. . see division list on second reading. hansard. . vol. , p. . hansard. . vol. , p. . hansard. . vol. , p. . boswell's "life of johnson." birkbeck hill's edition. iii., . fuller's "church history." howell's "state trials." ii., . chapter xi "speech of viscount haldane to the american bar association at montreal on september st, ." published in "the conduct of life and other addresses, ," p. . sydney smith. "cruel treatment of untried prisoners." _edinburgh review_, . chapter xii as to housing, see "report of her majesty's commissioners for inquiring into the housing of the working classes, ," and "report of the joint select committee of the house of lords and the house of commons, ." _r._ v. _foxby_, modern reports, pp. , , , and . dickens. "bleak house." chap. xvi. charles kingsley. "alton locke." chap. ii. benjamin disraeli. "sybil." book ii., chap. iii. "history of housing reform." published by the national unionist association. . "the land. the report of the land enquiry committee." vol. ii., p. . carlyle. "chartism." chap. viii. "new eras." "the republic of plato." book iv. translated by davies and vaughan. chapter xiii mr. balfour's speech on licensing. hansard. . vol. , p. . licensing act, , § , now licensing act, , § . hansard. . vol. , p. . dickens. "our mutual friend." book i., chap. vi. "letters and memories of charles kingsley." i., . chapter xiv "report of the royal commission on the poor laws and relief of distress, ." coke's "institutes." iii., chap. , p. (note). horn's "mirror of justices." selden society. vol. , book iv., chap. xvi., "of the judgment of homicide." horn's "mirror of justices." book i., "of sins against the holy peace." "report of royal commission on the poor laws, ," p. . "poor law report, ," p. . chapter xv samuel xv. . walt whitman. "song of myself." "report of select committee of the house of lords on the debtors act." william johnson's evidence, p. . manitoba laws. chapter xvi marcus aurelius. "meditations." book iv., par. . rudyard kipling. "the five nations." "stellenbosh," p. . the law and the poor chapter i past and present in a word we may gather out of history a policy no less wise than eternal; by the comparison and application of other men's fore-passed miseries with our own like errors and ill-deservings. sir walter raleigh: "history of the world." oxford edition. vol. ii., preface v. and vi. i often feel that if that excellent patriarch job had been alive he would have sent me a postcard indited, "o that ye would altogether hold your peace and it should be your wisdom." i have an anonymous friend who sends me frank criticisms of that kind on postcards. the sentiments are the same as job's text, but the language is fruitier. nevertheless, i like to hear from him, for he is an attentive reader of all i write. but, honestly, although i was always sorry for job and glad when he came into his camels and donkeys in the last chapter, yet i never sympathised with his attitude of taking his troubles lying down. after all, if one has gained a little practical experience of the law and the poor by living and working with them for twenty years it seems a pity to take it with you across the ferry into the silence merely because you have a bashful and retiring disposition. it is right, of course, to give your views and services to select commissions and the like,--but that is no better than hiding a lump of gold in a hole in the ground. the wiser plan is to try and tell the law-makers of the future--the men in the street--what is wrong with the machine, so that when they take it over, as they must do some day, they will not scrap it in mere despair, but tune it up to a faster and nobler rhythm. job, great, good, patient soul that he was, had his sour moments--a medical friend of mine believes that he had a liver,--i am sorry not to take the patriarch's advice, but i do not see my way to hold my peace about the law and the poor, and that is why i propose to try and point out how and why the law as a system is hard on the poor, and wherein the governors and great ones of the earth may further temper the wind to the shorn lamb. i myself do not expect to enter into the promised land of legal reform, but i am as sure that the younger generation will see it, as i am sure that they will see the rising sun if they ever get up early enough. the man at the door of the booth who beats the drum and calls out to the young folk in the fair to walk up and see the show plays a helpful part, though the old gentleman knows that he is doomed to stand outside and never make one of the audience. moses was like that, but he did useful work in booming the promised land. an eminent socialist complained to me with tears in his eyes that nothing was being done for the poor. i do not agree. not enough, certainly, but something, and every day more and more. the world is a slow world, and nature, like all such artisans, does her building and painting and decorating with exasperating deliberation. geology is slower than the south eastern railway. but no doubt providence intended each of them to go at the pace they do for our good. and it is impious to grumble. nevertheless, if i were a sculptor called upon to design a symbolic statue of nature, i should model a plumber. slow, hesitating, occasionally mixing the taps and flooding the world's bathroom or exploding the gas mains in the cellars of the earth, but in the end doing the job somehow--such is the way of nature. you cannot cinematograph the growth of the world or its rocks and trees and human beings--to study nature you want long life and a microscope. and the only way to make out whether the tide is coming in or out is to place a mark upon the shore and wait and see. it is the same if you are travelling an unknown road--you measure your progress by the milestones. in this matter of the law and the poor, if we want to know where we are to-day and where we are likely to be three hundred years hence, the only sane way to make the experiment is to go back to what we know of things in the past, and, by measuring the progress made in bygone centuries, take heart for the morrow. that is what sir walter raleigh meant when he told us how to gather a sane policy for to-day out of the blunders and troubles of yesterday. as i grope my way back along the main road of the history of the law into the dark ages i seem to find the milestones of reform set at longer and longer intervals. this puts me in good heart for the happy youths whose lot it will be to set their faces towards the morning breezes of the future. their milestones will come at shorter intervals every day, until the burden of the law drops from the shoulders of the poor at the wicket gate. there is no greater folly than to sing the praises of the good old days. anyhow, the law had no good old days for the poor. stroll down to the dockyards with samuel pepys; take a walk down fleet street with dr. johnson; or, even as late as the days of charles dickens, go round the parish with mr. bumble. you will learn in this way better than in any other how the law has treated the poor in the good old days. i have a quaint little volume written for the dogberries of the early eighteenth century called "the compleat constable." it is amazing to read of the tyranny of the law towards the poor and the homeless of those days. the statutes made for punishing rogues, vagabonds, night walkers and such other idle persons are, says the anonymous legal author, "a large branch of the constable's office, and herein two things are to be known:-- "( ) what is a rogue and who is to be accounted a vagabond? "( ) what is to be done unto them?" the charming impersonal technical spirit of this little work is beyond all praise. not a word is ever used to remind you that, after all, a rogue and a vagabond is a man and a brother. you are taught first to diagnose him as izaak walton would teach the young angler how to discover the singling that did not usually stir in the daytime, and having captured your rogue and vagabond, you are then enlightened as to the various methods of killing or curing him. and first you are to note that all persons above the age of seven, man or woman, married or single, that wander abroad without a lawful passport and give no good account of their travel are accounted rogues. then follows a very lengthy list of such as are "of a higher degree and are to be accounted as rogues, vagabonds and sturdy beggars." such are all scholars and sea-faring men that beg, wandering persons using unlawful games, subtle crafts, or pretending to have skill in telling of fortunes by the marks or figures on the hands or face, egyptians or gypsies. all jugglers or slight-of-hand artists pretending to do wonders by virtue of hocus pocus, the powder of pimper le pimp, or the like; all tinkers, pedlars, chapmen, glassmen, especially if they be not well known or have a sufficient testimonial. all collectors for gaols or hospitals, fencers, bearwards, common players of interludes, and fiddlers or minstrels wandering abroad. also persons delivered out of gaols who beg their fees, such as go to and from the baths and do not pursue their license, soldiers and mariners that beg and counterfeit certificates from their commanders. and, lastly: "all labourers which wander abroad out of their respective parishes, and refuse to work for wages reasonably taxed, having no livelyhood otherwise to maintain themselves, and such as go with general passports not directed from parish to parish." in a word, all the unfortunate poor who would not do as they were told by their pastors and masters and wanted to work and amuse themselves in their own way were rogues and vagabonds. and it is not without interest to run your eye over this list, for the statutory rogue and vagabond is still with us and our poor law of to-day suffers from its direct hereditary connection with the poor law of the eighteenth century. the duty of "the compleat constable" was, in the words of dogberry, to "comprehend all vagrom men" and he was liable to a fine of ten shillings for every neglect. moreover, if you were a stalwart fellow, you could apprehend your own rogue and vagabond and hand him over to the constable, who was bound to receive him. having dealt in accurate detail with the classification and identification of rogues, we come next to the chapter on treatment, which is best given in the simple words of the original. "the punishment is after this manner. the constable, headburrough or tythingman assisted by the minister and one other of the parish, is to see (or do it himself), that such rogues and vagabonds, etc., be stript naked from the middle upwards and openly whipped till their body be bloody and then forthwith to be sent away from constable to constable, the next straight way to the place of their birth; and if that cannot be known then to the place where they last dwelt, by the space of one whole year before the time of such their punishment; and if that cannot be known then to the town through which they last passed unpunished." if, however, none of these habitats was discoverable, the vagrom man was sent to the house of correction or common gaol, where he was put to hard labour for twelve months. it is only fair to remember, "that after such vagabond is whipt as aforesaid he is to have a testimonial"--is this the origin of people asking for testimonials?--"under the hand and seal of the constable or tything-man and the minister testifying the day and place of his punishment; as also the place to which he is to be conveyed, and the time limited for his own passage thither: and if by his own default he exceed that time then he is again to be whipt--and so from time to time till he arrive at the place limited." in the good old days of merrie england the chief entertainment of the villagers must have been to crowd round the stocks and the whipping post on the village green--some of which are existing to this day--just as their city cousins swarmed along the road to tyburn. and if you had suggested that the players or the fiddlers were a more wholesome amusement for the people than these cruel sights, you would not only have shocked the minister but would have rendered yourself liable to be treated as a vagrom man and to receive a testimonial from the constable. it is easy to-day to see the wrongdoing of much of this, but it was not to be expected that the citizens of the time should see any evil in the everyday cruelties they were used to. the law seems to have been hard on the poor then, but very few worried about it. history is constantly showing us that in matters touching the imperfections of our own system of law we are colour blind to the cruelties we commit ourselves and easily moved to indignation by the horrors and wickednesses committed by foreigners, especially if they are foreigners who have never known the blessings of the particular religion we profess. when fynes moryson was travelling in turkey at the end of the sixteenth century, he set down with reasonable detestation some of the gruesome things he observed. "touching their corporal and capital judgments," he writes: "for small offences they are beaten with cudgels on the soles of the feet, the bellies and backs, the strokes being many and painful according to the offence or the anger of him that inflicts them. myself did see some hanging and rotting in chains upon the gallows." yet in england he might have seen many of his fellow countrymen hanging and rotting in chains, for there was at that date and for many years afterwards no country with a more evil record than england for the practice of capital punishment for minor offences. as to mere corporal punishment, there was not a village in england without its whipping post, and a common sight in the streets of the city was to see a poor wretch being whipped at the cart's tail. in ordinary cases the journey was from newgate to ludgate, or from charing cross to westminster, but for really bad cases it was extended from newgate to charing cross. and not only did these punishments exist in england, but the populace enjoyed them. one of the sights of london was to see the women whipped in the bridewell. the court of governors held their board meeting, presided over by a magistrate, and the sentence was executed in their presence and continued until the president struck the table in front of him with a hammer. the cry, "o good sir robert, knock! pray, good sir robert, knock!" which the victims screamed out whilst under the lash, became a common slang cry among the lower orders in the streets of london in the seventeenth century. there can be no doubt about the horrors of the old prisons, but it was only men and women of especial insight who recognised that there was real evil in them. literature and art did much to arouse the public conscience. there is a strong description of the bridewell in "roderick random," where smollett makes miss williams tell her life story. in this prison, she says, "i actually believed myself in hell tormented by fiends; indeed, there needs not a very extravagant imagination to form that idea; for of all the scenes on earth that of bridewell approaches nearest the notion i had always entertained of the infernal regions. here i saw nothing but rage, anguish and impiety; and heard nothing but groans, curses and blasphemy. in the midst of this hellish crew i was subjected to the tyranny of a barbarian who imposed upon me tasks that i could not possibly perform and then punished my incapacity with the utmost rigour and inhumanity. i was often whipped into a swoon and lashed out of it, during which miserable intervals i was robbed by my fellow-prisoners of everything about me even to my cap, shoes and stockings: i was not only destitute of necessaries but even of food, so that my wretchedness was extreme." no one need suppose that smollett is guilty of exaggeration, for the well-known plate of hogarth shows us the actual scene and the records of the place are numerous. there were, of course, just as many good and charitable men and women then as there are now, but the possibility that a bridewell was a thing that the world had then no use for was entirely beyond the thought of the eighteenth century citizen. in the same way how few of us recognise that there is much room for reform in the penal system of to-day. it is natural that it should be so. we arrive in the world knowing nothing much about it, we are brought up to believe that everything that has been going on for the last few centuries has been for the best, and the tired old ones who are leaving us are never tired enough to leave off telling us that they have made every possible reform that it was safe and advisable to make. in the few years of hustling life and in the scanty hours that he can spare from earning his daily bread the average citizen has little time and opportunity to investigate the social system of which he is a unit, or to understand how or why the wheels of the world machine are grinding unevenly. when we read of the horrors of two or three hundred years ago, it should not be to cast a reproach against our fathers, but rather to learn who were the men and women who moved the world of that day to see things as they were. these glorious spirits have enabled us to enter upon our inheritance free from the worst degradations of the past and we may best render them thanks and praise by learning to follow their example. i make no doubt that most of us are much like old fynes moryson, who, being an ordinary average englishman, saw the everyday horrors of his own country, but was in no way impressed by them, yet was moved to grave indignation at the wickedness and cruelties of foreigners. truly the seventeenth century turk was a cruel beast. moryson tells us with honest reprobation, but in gruesome detail, of the turkish methods of impaling, where a "man may languish two or three days in pain and hunger; if torment will permit him in that time to feel hunger for no man dares give him meat," and of casting down malefactors to pitch upon hooks and other nameless horrors. yet if he had been in london on october th, , and dropped into the guildhall, he might have heard the lord chief justice of england, the great coke, using much persuasion to richard weston, who, being accused of the murder of sir thomas overbury, stood mute, refusing to plead. coke and his brother judges, having failed to persuade the wretched weston to utter a plea of not guilty, the lord chief justice repeated for his benefit the law of england at that time and reminded him that the prisoner who wilfully stood mute must undergo the _peine forte et dure_, the extremity and rigour whereof was expressed in these words, "_onere, frigore et fame_." "for the first," continued his lordship, "he was to receive his punishment by the law, to be extended and then to have weights laid upon him no more than he was able to bear which were by little and little to be increased. for the second, that he was to be exposed in an open place near the prison in the open air, being naked. and; lastly, that he was to be preserved with the coarsest bread that could be got, and water out of the next sink or puddle to the place of execution, and that day he had water he should have no bread, and that day he had bread he should have no water; and in this torment he was to linger as long as nature could linger out so that often times men lived in that extremity eight or nine days; adding further that as life left him so judgment should find him. and therefore he required him upon consideration of these reasons to advise himself to plead to his country." notwithstanding this advice the wretched man continued mute, but after a consideration, during an adjournment of three or four days, of the law of procedure as laid down by lord chief justice coke, weston thought better of it and pleaded not guilty, and was duly convicted and executed. how illogical it seems that a citizen whose state executed this form of torture on its prisoners should hold up the holy hands of horror at the variations of cruelty that satisfied the lust of the unspeakable turk! the _peine forte et dure_ remained one of the pillars of our law until the reign of george iii. and was carried into execution in the reign of queen anne and george ii.--so obstinately do we cling to our ancient precedents and so fearful are we of facing the narrow paths that lead to better things. when oliver goldsmith wrote, "laws grind the poor and rich men rule the law," i do not know that he wished to make any specially unkind attack upon the rich. i imagine he merely intended to state a fact which seems in all ages to have been universally true. i do not suppose that in the middle of the eighteenth century anyone in the least recognised the actual horrors that were going on around him unless it was some poet and dreamer like oliver himself. the strong, sensible men of that generation were as assured of their own righteousness as they are to-day. dr. johnson told dr. maxwell that "the poor in england were better provided for than in any other country of the same extent; he did not mean little cantons or petty republics. where a great proportion of the people (said he) are suffered to languish in helpless misery that country must be ill-policed and wretchedly governed; a decent provision for the poor is the test of civilisation. gentlemen of education, he observed, were pretty much the same in all countries; the condition of the lower orders, the poor specially, was the true mark of national discrimination." the good doctor rolled all that excellent stuff out one evening in to the rev. dr. maxwell, the assistant preacher of the temple, who, like boswell, faithfully recorded what he remembered of it in the morning--i doubt not that if dr. johnson had lived in , or , or , or had flourished under caligula or nero, he would have rolled out the same sonorous complacent nonsense to some sort of faithful human gramophone who would have recorded the utterances of his master's voice with a canine credulity in its omniscience. there is nothing extraordinary in the divergence of the views of oliver goldsmith and dr. johnson about the law and the poor. the good doctor held the strong, sensible, tory view that the system of treating the poor handed down to us by our forefathers was the right and proper system, that it was at least as good as any other system, that nothing anyhow could be learned from the hated foreigner, and that to pander to dreamers and busybodies, who found fault and wanted to alter things, was to start down the broad road of destruction. oliver goldsmith might have thought the same thing if he had been an englishman, but he had the saving grace of irish blood in his veins, and the true irish have the power of looking beyond the present, and are often prophets and dreamers of dreams, seeing signs and wonders that we wot not of. "sir!" said dr. johnson on another occasion, and when he began like that you knew that wisdom was about; "the age is running mad after innovations; all the business of the world is to be done in a new way; tyburn itself is not safe from the fury of innovation." it having been argued that this was an improvement--"no, sir (said he eagerly), it is not an improvement; they object that the old method drew together a number of spectators. sir, executions are intended to draw spectators. if they do not draw spectators, they don't answer their purpose. the old method was most satisfactory to all parties; the public was gratified by a procession; the criminal was supported by it. why is all this to be swept away?" and boswell and sir william scott nodded approval, just as you and i would have done or do now when some important old gentleman lays down the law about something of which he knows perhaps even a little less than we do and we are too courteous or cowardly to tell him that at the back of our minds we believe he is talking nonsense. if you would be gratified by a tyburn procession, you may see one any day for yourself in hogarth's print of the awful end of the idle apprentice. the ragged men, women and children bawling dying speeches about the streets, the criminal in the cart sitting beside his coffin, the chaplain exhorting the poor outcast, who, if he still courted popularity, scoffed openly, shouting to his friends on st. sepulchre's steps where they stood with their nosegays to give their pal a last greeting. what a solemn impressive scene! all the way up holborn there is a crowd so great that every twenty or thirty yards the cart is pulled up, and now someone brings out wine and the malefactor drinks a last toast. and when he reaches the fatal tree the ribald mob swears and laughs and shouts out obscene jests. amid these noises a psalm is sung and the sound of it drowned in filthy tumult. so was the life of a fellow sinner brought to an end in the eighteenth century. and there were men and women who wanted to abolish it all. it was too much for dr. johnson. "tyburn itself not safe from the fury of innovation!" fancy that! what a terrible outlook! the law deserting the poor and giving them no more cheap excursions to tyburn--well might the good doctor shake his dear old head and prophesy woe. and when dr. johnson upheld the english treatment of the poor in , we may suppose he knew as much about it as a literary professor of to-day knows about what is going on in the workhouse, or the police court, or the county court of our own time. the belief that the world is the best possible of worlds has its value in making for the stability of things, but mere ignorance of the facts of life, coupled with that strange form of piety which accepts whatever system was good enough for a past age as the only possible system for this, renders the pace of social reform as imperceptible to the human mind as the movements of glaciers. if a history of the law and the poor were to be written, it would be a story of the lower classes emerging out of slavery into serfdom, out of serfdom into freedom of a limited character, and every age finding new abuses to remedy and trying in some small way to rid the law of some of those traits of barbarism which linger in its old-world features. to each new generation the terrors of the past iniquity of the law are mere nightmares. we can scarcely believe that what we read is true any more than our grandchildren will be able to understand how we were able to tolerate some of the everyday legal incidents of our daily courts. less than a hundred years ago at salford quarter sessions there were over two hundred prisoners, all poor and mostly very young, and the law thought nothing of transporting them for life or fourteen years as a punishment for small thefts. and horrible as all this cruelty was, yet i make little doubt that the judges of the time, with very few exceptions, administered the law as humanely as they do to-day. sir thomas starkie, the learned chairman of the salford epiphany quarter sessions in , no doubt felt very grieved when he sentenced martha myers, aged sixteen, and mary mason, twenty-four, to seven years' transportation. i expect he thought he was "giving them another chance." perhaps he was. we do not know. they may have become the mothers of big-limbed colonial aristocrats instead of peopling the hundred of salford with another generation of feeble-minded criminals. nowadays there is a tendency among the less discerning of mankind to set down all the rough edges and inequalities of the law to the fault of the judges, though in truth they have but a small part in the making of new laws, and i do not think they can be rightly blamed for harsh administration. they get the blame because they are the figure-heads of the show, so to speak, and the public know nothing of the difficulties under which the judges labour. it is their duty to administer the complicated modern laws turned out by parliament in a somewhat haphazard fashion, and they are bound to keep alive old-world laws that ought long ago to have been shot on to the rubbish heap. nearly all the law relating to the poor will be found to be defective to our modern sympathies, just because it is a patching up of the ancient cruel pagan law of past ages and does not break bravely away from the old superstitious uses and close for ever the volumes of laws that were made in the days when liberty and equality and fraternity were words of anarchy and rebellion. the poor are suffering to-day at the hands of the law because in the evolution of things we have a lot of old derelict law made by slaveowners for slaves, by masters for serfs, by the landlords for the landless. it is law that has no more relation to the wants of to-day, and would be of no more purpose to a ministry of justice--if we had one--than crossbows and arquebuses would be to the war office, or coracles to the admiralty. and, instead of cursing the judges, who, poor fellows, are doing their best, i wish our parliamentary masters would look into the history of the matter. they would find, i think, that in the last few years enormous reforms have been made in modifying the cruelty of the law to the poor, and might discover, by marking back on the track of past reform, the lines upon which further evolution may be hastened. one thing, i think, they will be convinced about: it is not the judges who are hard on the poor, it is the law. it is the sins of the lawgivers of the past that the poor are expiating to-day. chapter ii the ancients and the debtor my thoughts are with the dead, with them i live in long-past years, their virtues love, their faults condemn, partake their hopes and fears, and from their lessons seek and find instruction with a humble mind. robert southey: "my days among the dead are past." i find this question of the debtor, and our modern method of imprisoning the poorer variety of the genus, in the forefront of any consideration of the problem of the law and the poor, because to my mind it is a clear and classic instance of the way in which it comes about that the law with us is a respecter of persons. the physiological tutor will take his pupils into the laboratory and cut up a rabbit to show them where their livers ought to be, the microscopist will choose a newt to exhibit to you the circulation of the blood, and in like manner, for my purposes, the debtor seems to me to possess all the necessary legal incidents in him through which one can give an excellent object lesson on the law and the poor. there is no legal mystery about a debtor; he is a common object of our legal seashore, as ancient of lineage as the periwinkle and sometimes almost as difficult to get at. everyone has in his life at some time or other been a debtor, though not all of us have attained to the dignity of a co-respondent, a mortgagor, a garnishee, a bankrupt or a _cestui que trust_. it seems to me that to demonstrate to the man in the street the unfairness of our law of imprisonment for debt is such a feasible proposition, that i have come to regard the subject as very fitting for the citizen's kindergarten education on legal reform. once understand the history, and the causes of the continued existence, of imprisonment for debt, and its evil effect on right action, conduct and social life, and you will find it easier to diagnose the more obscure legal diseases which are partially the outcome and partially the cause of much real distress among the poor. carlyle tells us to "examine history for it is philosophy teaching by experience," and, if we take his advice in this matter of imprisonment for debt, we shall, i think, be bound to admit that what is going on among us day by day in the county courts of this country is in historical fact a relic of a very ancient barbarism. it is the more extraordinary to me that this relic should still be venerated, since history also makes it clear that teachers, prophets and law-givers of all ages have testified to their sense of the cruelty and injustice of the law which thrusts a man into prison because he does not pay his neighbour what he owes him. i propose, therefore, before i set down exactly what we are doing to-day, to trace the pedigree of our present system of dealing with debtors and show you historically and cinematographically, as it were, how the world has treated its debtors in the past and what the saner men of different ages thought about it at the time. in this way the man in the street of to-day will have the material for forming a sound judgment on the question of what we should do with the poor debtor. and to begin with the old testament. let us remember with gratitude the remarkable action of elisha in the matter. elisha went the length of performing a miracle to pay the bailiffs out. there are many poor widows in the mean streets of our own cities looking down the road for the elisha of to-day who cometh not. miracles do not happen nowadays; people don't do such things. still it is interesting to know that there was imprisonment for debt in elisha's day, just as there is now--for the poor and only for the poor--and it is encouraging to know what elisha thought about it. what happened was this:-- the county court bailiffs of the county court of israel, holden at samaria, went with a body-warrant to seize the two sons of a poor widow on behalf of a creditor of her late husband, just as they might do to-day. fortunately, the deceased had been a servant that did fear the lord, and elisha, hearing of the trouble, went down to the house, and in that simple, kindly way that the dear old prophets had of putting little troubles straight for members of their congregations and also no doubt to show the contempt he had for the proceedings of the county court of samaria, sent the widow out to borrow empty vessels of her neighbours. these he miraculously filled with oil of the best, and the only pity of it was that there were no more vessels to fill, for elisha was in form that morning, and was sorry to stop. when it was over he said to the widow: "go sell the oil and pay thy debt and live thou and thy children of the rest." i am very fond of that story. i like to believe it really happened. i wish it could happen to-day, for there are many poor women in much the same straits as that poor widow. i have never heard the text referred to in churches and chapels, and i am not surprised. a minister who preached about it would have to explain that he could not do miracles of that kind himself, and if he were to do the next best thing and preach about the iniquity of imprisonment for debt straight from the shoulder--as i am sure elisha would have done--the respectable credit draper, the pious grocer, and all the noble army of tally-men would get up in their pews and walk out of his church or chapel in disgust. the days of miracles are past, but if it was worth while for a holy man like elisha to show what he thought about imprisonment for debt, by means of a miracle, surely, after all these ages, we might have improved that particular piece of barbarism off the face of the earth. but no. the poor are worse off now than they were then. the bailiffs come for their bodies on behalf of their creditors still. and they look down the road in vain. there is no elisha. and when you come to the new testament the matter is laid down even more clearly. matthew vi. has the actual words of our lord's prayer to be, "and forgive us our debts as we also have forgiven our debtors." if the forgiveness of our debtors is a condition precedent to our own forgiveness, most of us are in a parlous state. but is it too much in this christian country of ours to suggest that, even if the highest ideals of the master are beyond our attainment, we need not insult our belief by continuing a barbaric pagan system of cruelty which has been singled out for special disapprobation by the word that we cannot shut our ears to? you remember the parable of the king that took account of his servants which matthew sets out in his eighteenth chapter. how a servant owed the king ten thousand talents and, as he had not wherewith to pay, his lord commanded him to be sold, and his wife and children, and all that he had, and payment to be made. note that in those days the wife and children were actually sold into slavery. we do not do that: we remove the bread-winner, only, to gaol and care for his wife and children in the workhouse. it is encouraging to find this much reform after nineteen christian centuries. the servant, you will recollect, pleaded with the king, saying, "have patience with me, and i will pay thee all." debtors have not altered much since that date, and the text has a familiar ring in the ears of a county court judge. the lord of that servant, being moved by compassion, released him and forgave him the debt. this is important to remember, for the servant being forgiven his debt was without excuse for his subsequent contemptible conduct. and, indeed, i have often found that men who have been most leniently treated in their own failures by those in a better position, are themselves most greedy in extorting the uttermost farthing from their smaller victims. speaking generally, it is not the most desirable class of trader that makes use of the debt-collecting system of the county court. the servant of the parable was the meanest of curs. he "went out, and found one of his fellow-servants, which owed him a hundred pence: and he laid hold on him, and took him by the throat, saying, pay what thou owest." here, again, we may flatter ourselves on our superior procedure. if this had happened in lambeth, the servant would not have been allowed to go for his fellow servant with such jubilant audacity. nowadays everything would be done in legal decency and order. the debt being for a hundred pence, and, therefore, being within the jurisdiction of the county court, a summons would have to be issued, fees would have to be paid to the treasury and the court officials, and a lot of money spent and added to the debt before imprisonment followed. still the rough-and-ready methods of the earlier centuries were certainly cheaper, and the result was much the same. for we read that, though the fellow-servant pleaded in the same formula, "have patience with me, and i will pay thee," the creditor of the hundred pence stood firm for his rights and cast his fellow servant into prison till he should pay his due. and if this had been a repertory drama and not a parable, the curtain had fallen on that scene and one would have come away depressed with the abjectness of human nature and with a cold feeling that the world was a drab uncomfortable place. but the ancient dramatic stories always have a happy ending. there is more of the spirit of the old adelphi than of the gaiety theatre, manchester, about the parables. the lord hears of his servant's scurvy behaviour and, to the delight of all sane men of child-like and simple faith, the wicked servant is delivered to the tormentors till he shall pay all that was due. i confess that my legal mind has been haunted with the thought that, the lord having forgiven the servant his debt, it was rather a strong order for him to go back on that forgiveness. doubtless there was no consideration for the forgiveness, it was _nudum pactum_, or there may have been an implied contract that the servant should do unto others as he had been done by, but i rather expect the lord and his advisers only considered the justice of their act rather than its technical legal accuracy. but one thing we can rejoice in. there is the dramatic story, and no one can construe it into approval of any form of imprisonment for debt. i know that many who do not regard the bible as an authority will not be troubled about this testimony; probably many more who do read the scriptures for guidance will be pained that anyone should make use of holy words to upset a system that they find so useful in the commercial weekdays of life. moreover, some will shake their heads and remind me that "the devil can cite scripture for his purpose." that is true enough. but it will be a very clever devil who can cite any scripture in support of section of the debtors act, . and i will pass away from scriptural precedents to others which, though to me they possess a less compelling sanction, will perhaps have more weight with men of the world. in the history of ancient greece the debtor played an important part. let me remind you what the archon did. the particular archon i refer to is solon. solon knew all about imprisonment for debt, and his evidence on the subject is most convincing. it is well to remember, too, that solon was a business man--i have this from grote, who got it, i fancy, from plutarch. exekestides, solon's father, a gentleman of the purest heroic blood, "diminished his substance by prodigality," and young solon had to go into business; in modern phrase, he "went on the road," and saw a lot of the world in greece and asia. i mention this because i am always told that if i knew anything of business i should understand the necessity of imprisonment for debt. solon was emphatically a business man. solon was also a poet, which perhaps was his best asset as a social reformer, but he was no sentimentalist if, as some say, when he was a general attacking a rebellious city he ordered the wells to be poisoned to put an end to the strife. when solon in a time of grand social upheaval was made archon, he found the poorer population, including particularly the cultivating tenants, weighed down by debts and driven in large numbers out of freedom and into slavery. let me set down the condition of things in the careful words of grote lest i appear to exaggerate. "all the calamitous effects were here seen of the old harsh law of debtor and creditor--once prevalent in greece, italy, asia, and a large portion of the world--combined with the recognition of slavery as a legitimate status, and of the right of one man to sell himself as well as that of another man to buy him. every debtor unable to fulfil his contract was liable to be adjudged as the slave of his creditor, until he could find means either of paying it or working it out; and not only he himself, but his minor sons and unmarried daughters and sisters also, whom the law gave him the power of selling. _the poor man thus borrowed upon the security of his body_ (to translate literally the greek phrase) and upon that of the persons in his family." the words i have italicised are interesting as exactly defining the principle of all imprisonment for debt. a wage earner to-day who runs up bills with tally-men and grocers obtains credit upon the security of his body. i have heard from the wife of a poor debtor an apt but unconscious translation of the latin maxim, _si non habet in aere luat in corpore_. her allegation was that a tally-man had said to her husband, "if i canna 'ave yer brass i'll tek yer body." in the north country, among the more old-fashioned bailiffs and their victims, warrants of arrest are commonly known as "body warrants." no doubt the imprisonment of to-day is different in degree from the slavery of debtors in greece five hundred years before christ, but it is absolutely the same in principle, founded on the same idea, and worthy to be maintained or abolished by the citizens of this state for the same reasons that were found good by the citizens of athens. thus it is that it is worth while finding out what solon thought about it. i wish solon's tract, "what the archon saw," had come down to us, and we could have quoted actual instances of the wickedness of imprisonment for debt in his day, but at least we know what he thought of it, and, what is really important to us, what he did. solon had a pretty wit in titles. he called his bill _seisachtheia_, or the shaking off of burdens. the relief which it afforded was complete and immediate. it cancelled at once all those contracts in which the debtor had borrowed on the security of his person or his land; it forbade all future loans or contracts in which the person of the debtor was pledged as security; it deprived the creditor in future of all power _to imprison_ or enslave or extort work from his debtor, and confined him to an effective judgment at law, authorising the seizure of the property of the latter. this was indeed a shaking off of burdens. for here we find, not only was imprisonment for debt abolished lock, stock and barrel, but a law enacted protecting the land of the cultivator from being seized for debt. this is akin to what in some of our colonies is called a homestead law, and i have always contended that in the interests of the state the few sticks of furniture which a poor man and his wife and children always call "the home" should be protected from arrest for debt, just as the bread-winner's body should be exempt from imprisonment. i could have got along with solon. and when one is told the old tale that continues to be put forward by those who wish to retain imprisonment for debt--that the workman will starve for want of necessary credit and that trade will stagnate owing to timid creditors refusing to trade--let us remember with pleasure that that was not what the archon saw as a result of his beneficial measures. on the contrary, the testimony is overwhelming that there grew up a higher and increasing respect for the sanctity of contracts. the system of credit-giving, and especially of moneylending, assumed a more beneficial character, and "the old noxious contracts, mere snares for the liberty of a poor free man and his children"--the flat-traps of to-day--disappeared. what happened was what will happen here when we abolish this degrading system of giving credit on the sanction of body warrants. what happened in athens was that, although there were some fraudulent debtors, the public sentiment became strongly in favour of honesty, and it is agreed that the prophecies of solon's failure were not made good, and "that a loan of money at athens was quite as secure as it ever was at any time or place of the ancient world." furthermore, it is acknowledged by the better authorities that what i expect and believe will happen in the mean streets of england when imprisonment for debt is abolished, actually did happen in athens, and, to use grote's words, "the prohibition of all contracts on the security of the body was itself sufficient to produce a vast improvement in the character and conditions of the poorer population." of course, i am not putting forward "what the archon did" as an example to the archons who didn't of to-day. the theory of evolution teaches us that in two thousand years the solon type must have improved, and that the solon that we see in the latter-day armchair of state must be a far, far better thing than anything that obtained in ancient greece. possibly, the world having no use at all for solons, the type is extinct. be that as it may, i am more than ever puzzled since i have studied the records of what the archon did. if the world had got so far in the question of imprisonment for debt five hundred years before christ, why are we where we are now nineteen hundred years since the master set before us the true doctrine of forgiveness of debts? the roman laws against the debtor upon which we have ultimately modelled our own were equally harsh and would nearly satisfy the moneylender or tally-man of any age. upon notice, a debtor had thirty days in which to discharge his debt. if he did not do so his creditor carried him off in chains. note, however, that he was not a slave, but his creditor had to keep him in chains for another sixty days, during which time he had to bring the debtor out on three successive market days to give his friends an opportunity of paying up and releasing him. the creditor had also to provide the debtor with a pound of bread a day. in these socialist days we take that burden off the creditor's shoulder and a generous state feeds the imprisoned debtor at the cost of the community. on the third market day, if the debtor's friends were still backward in coming forward, the debtor was killed and thrown into the tiber, or his body was divided among his creditors, which was the only dividend they received. if there was any market for him he was sold into slavery. it seems that in the very early days of ancient rome each creditor had a right to carve his pound of flesh from off the debtor. portia's point against shylock: ... nor cut thou less, nor more, but just a pound of flesh:... was foreseen and provided for in the drafting of the twelve tables. it is enacted in the third table: "after the third market day the creditors may cut their several portions of his body: and any one that cuts more or less than his just share shall be guiltless." unless, therefore, the laws of venice amended or repealed the twelve tables, shylock's case seems to have been wrongly decided. what is at least curious is that the ancient idea of debtor and creditor law embodied in those ancient statutes should be the foundation of one of the most popular plays in the english language. some good people have found a difficulty in understanding shylock's outlook on life and cannot comprehend why a creditor should enjoy killing a debtor. but, after all, it is equally strange why a creditor should take pleasure in imprisoning a debtor. yet to-day thousands of debtors go to prison because they have not means to pay their creditors. the difference between killing and imprisoning a debtor is a difference in degree only. the principle is the same. the object of the creditor is, perhaps, in the first place, to get repaid his debt; when he finds this is impossible the death or imprisonment of the debtor merely satisfies his desire for revenge. the ancient romans were, in one way, a more practical people than ourselves, for they threw the costs of this revenge direct upon the creditor, whereas we throw it upon the taxpayer. if this particular impost were made upon me in any direct manner it would almost persuade me to be a passive resister. i am glad, however, to remind you that in historical times at all events the romans did not carry out the law of the twelve tables to its uttermost cruelty. the popular way of dealing with a debtor seems to have been to sell him into slavery and then to credit him in your ledger with the price he fetched--less the out of pockets--much as we do to-day when we issue execution against chattels. in later years the slavery of debtors was abolished and imprisonment much like our own was substituted, but the romans never had a lawgiver as wise and powerful as solon to get rid of imprisonment for debt altogether. and the roman imprisonment for debt in some shape or other runs through the social systems of the middle ages, being harsh in one place and less cruel in another, and mitigated at one date and aggravated at another. always we find a feeling among the more thoughtful of mankind that it is in itself a harsh and cruel system and a desire among at least a few to help the victims of it in their distress. fynes moryson, who was in rome in , tells us of a practice which then prevailed in the pope's state which might be introduced into protestant england to-day in a lively belief that it would be in accordance with the tenets of the christian faith and a certain hope that it would relieve many a poor wretch in misery and despair. "if," he writes, "a man be cast into prison for debt, the judges after the manner visiting frequently those prisons, finding him to be poor, will impose upon the creditor a mitigation of the debt, or time of forbearance, as they judge the equity of the case to require, or if by good witnesses they find the party so poor as really he hath not wherewith to pay his debt they will accept a release or assignment of his goods to the creditor and whether he consent or no will free the debtor's body out of prison." at all periods of time we find the same uneasiness in the minds of rulers and governors about keeping a poor man in prison for debt when he cannot pay. the governors of english gaols will tell you that per cent. of the debtors lying in prison to-day for civil debt, rates, maintenance or bastardy orders and small fines are too poor to pay. yet here in england our legislators cannot even get as far as the papal state of the sixteenth century in an exercise of charity to the poor and distressed. pending the abolition of imprisonment for debt, a home office visitation with power to release the really unfortunate on the lines of the practical experiment which fynes moryson wrote home about three hundred years ago would be something to be going on with. this, however, is a matter which is concerned with methods of reform. but, before we deal with amendments of the law, it is necessary to trace clearly and accurately the evolution of imprisonment for debt in england, in order that we may understand how and why it exists to-day as a law that can only be put in force against the poor. chapter iii of imprisonment for debt in england oh let me pierce the secret shade where dwells the venerable maid! there humbly mark, with reverend awe, the guardian of britannia's law; unfold with joy her sacred page, the united boast of many an age; where mixed, yet uniform, appears the wisdom of a thousand years. sir william blackstone: "the lawyer's farewell to his muse." i am honestly sorry to have to inflict a chapter of legal history upon anyone, but for the life of me i do not see how the imprisonment for debt of to-day can be intelligently appreciated until one knows something of its lineage. to begin with, it may be news to some folk to learn that in the merry days of henry iii. there was no imprisonment for debt at all. if godfrey the garlic seller or hogg the needier owed rose of the small shop a tally for weekly purchases and would not pay, rose, poor woman, could not get an order to send them to gaol. yet there is no evidence that trade was thereby injured, or that there was any difficulty in rose regulating her credit-giving, or in godfrey and hogg and the rest obtaining as much credit as they deserved. the first thing to remember is that england at one period had no use for imprisonment for debt. it occurs to me that, if i can persuade the man in the street to understand how imprisonment for debt began and continued until it became a great public scandal, and show how in the last hundred years little by little its evil influence and extent have been abated with good results, we shall be making great strides towards the restoration of that liberty in england which in the matter of debt was the citizen's privilege in the days of henry iii. but the reason for the absence of imprisonment for debt in these early feudal days is not so satisfactory to modern ears as one could wish. lord chief baron gilbert, that crisp and accurate lawyer of the eighteenth century, puts it very clearly when he says: "but there was no capias for the debt or damages of a common person, because the party having trusted him only with personal things his remedy was only on the personal estate, and the king had the interest in the body of his subject; and the lord in his _feudatory_ or _vassal_ to be called out to war or to labour for him; and therefore none but the king could imprison him." and this seems clear, that the reason a creditor could not imprison a debtor was because in those days a debtor had only a limited interest in his own body. the fighting part of his body belonged to the king, the labouring part of his body belonged to his lord, and the king and the lord were not going to have their rights and property in his body interfered with because the subject and vassal had been foolish enough to run into debt with another subject and vassal who wanted his money. you will, indeed, find that the whole history of the law and the poor seems to be a long struggling of the poor out of slavery and serfdom where they had a certain guaranteed amount of food and protection from their masters, similar in nature to that given to the ox or the ass or anything that was his, into a state of freedom, so-called, in which they had given up their rights to food and protection without getting any certain rights of wages or the equivalent of wages in return. we are in the middle of adjusting these things to-day, and the story of imprisonment for debt, and why it is retained at the present only for poor people, is a page in the curious english history of social progress. as long as the debtor was a vassal having certain duties to perform for the lord of the manor his lordship thought him as much worth preserving as the game or venison within the curtilage of his park. it was for this reason you could not take his body in execution. as you may know, when you obtain a judgment in a court of law the next thing to do is to proceed to execution; that is to say, the judge having given you judgment a writ is granted to you whereby you get the sheriff to take your part and seize for you either the goods or body of your opponent. the history of these ancient writs is full of amusing folklore for those who love such things, and we still call them by their old dog-latin names, not for any scientific purpose, but for much the same reason that the doctors write their prescriptions in hieroglyphics and priests mumble latin or english--but always mumble--in a cathedral. it is the essence of a profession that it should be mysterious and incomprehensible, otherwise the common herd would not respect it and pay its fees. and, prior to henry iii., if you got a judgment against your neighbour for money owing by him to you, your remedies of execution were these. by a writ of _fieri facias_ the sheriff could be commanded to seize the goods and chattels of the debtor in satisfaction of the debt. this dear old writ, the _fieri facias_, affectionately alluded to as the _fi. fa._ by attorneys, bailiffs and others who have the handling of the fellow, is still with us. i agree that without him the delivery of judgments in courts of law would be mainly of academic and rhetorical interest. for as gilbert--not william schwenck, but sir geoffrey the chief baron--puts it, if a party trusts a man with personal things, then his remedy should be against the personal things of the debtor, and this seems a principle of common law and common sense as just as it is homeopathic. as our latter-day gilbert would have put it, "the punishment fits the crime." but when you come to our other writ, the _capias satisfaciendum_, or "_ca. sa._" as it is written in the absurd legal shorthand of the day, or "body warrant" as it is still termed with brutal accuracy in lancashire, then you will find that in old days different considerations prevailed. you were not allowed to seize a man's body for debt, but only his goods. and i am glad to find myself setting forth high tory doctrine and asking my fellow citizens to return to the earliest common law of the land, for this seems clear that originally, unless the action was for trespass _vi et armis_, which was in the nature of a criminal matter, there was no remedy against the body of the defendant. the _ca. sa._ whereby the sheriff was ordered to seize the body of the defendant in execution could not issue at the instance of a successful plaintiff at common law. in other words there was no imprisonment for debt. our forefathers recognised what we seem to have partially lost sight of, that as credit could only be given commercially to a man with goods, it was fair and just that his goods should be seized if he did not carry out his contract. but for reasons of their own--no longer sound as reasons to-day, it is true--they refused to allow a man to mortgage his body for goods. body warrants only issued against criminals or in actions of a semi-criminal character. it will be reassuring to those conservative minds who fear the abolition of imprisonment for debt to remember that there was a time in england when it did not exist, and that if we abolish it to-day we are working on old-fashioned and constitutional lines. imprisonment for debt has not the sanction of antiquity, and a desire to sweep it away must not be put down to the wild and wicked desires of a political futurist architect, but rather to the pious hopes of one who is in deep sympathy with the best features of the norman and early english social institutions of his native land. to tell the long story of the statutory evolution of imprisonment for debt from the statute of marlbridge, henry iii. c. , to the act for the abolition of imprisonment for debt--so-called--of , would be out of place here. it is enough to know that little by little the principle of the right of one man to seize the body of another in an execution for debt became recognised by statutes and by custom until the wrongs it caused reached such a scandalous pitch in the eighteenth century that some reform of it became inevitable. the more modern contests over its partial mitigation from time to time throw a direct light on the differences of opinion upon the matter of to-day. it will be seen that there have always been two schools of thought among politicians. one school was clear, that to tamper with imprisonment meant ruin to trade; the other held--what i take to be the true gospel--that a man ought not to be allowed to obtain credit on the security of his body. until the end of the eighteenth century the harshness and cruelty of imprisonment for debt received little attention. the history of the debtors' prisons, the fleet, the king's bench, the marshalsea and the city compters, are pages of the story of our law that no one can read to-day without shame. yet the howards and frys who called attention to the facts met with just as little encouragement and attention from the rulers of the country as anyone does to-day who desires to put the coping stones on the completed work, the foundations of which were laid by these great reformers. the extraordinary results that took place through imprisonment for debt as it existed in the eighteenth century are surely beyond parallel in any legal system. the plays and fictions of the time are full of instances. you remember when roderick random finds himself in the marshalsea he meets with his old friend jackson and asks him about his _amour_ with the lady of fortune: "you must know," replies jackson, "that a few days after our adventure i found means to be married to that same fine lady you speak of and passed the night with her at her lodgings, so much to her satisfaction, that early in the morning, after a good deal of snivelling and sobbing, she owned that far from being an heiress of great fortune she was no other than a common woman of the town who had decoyed me into matrimony in order to enjoy the privilege of a _femme couverte_, and that unless i made my escape immediately i should be arrested for a debt of her contracting by bailiffs employed and instructed for that purpose." upon hearing this poor jackson escapes and serves for a few months as surgeon of a sloop, but, on his return, is arrested for a debt of his wife's and comes to live at the marshalsea on half pay. nor is there anything wildly improbable in the story. smollett had been in a debtor's prison himself, and very likely had heard the story at first hand, for many equally extraordinary stories in real life are well authenticated. there was the strange case of the lady who married a man under sentence of death to get rid of her debts, and was greatly upset when her husband was respited and sent to the colonies. but perhaps one of the most curious stories is that of the dear old blind spinster of clerkenwell, with a fortune of a thousand pounds, who took a deep interest in the career of an industrious shoemaker's apprentice and made him presents of clothes and a watch and lent him ten pounds. when he was out of his articles and was about to go home to leicestershire and settle down there, he was arrested for the loan and the attorney's bill of costs and the "garnish" at the lock-up to which he was taken. after a few days the kind-hearted lady visited him and offered him three alternatives. he might pay the money; go to the debtor's prison for the rest of his life; or marry her. he chose the last alternative and was kept in the sponging house until his wedding day. these stories are but a sample of the iniquities that were going on in that day, and yet then, as now, the feeling of legislators and business men seems to have been that it was dangerous to trade and business to sweep this horrible system away, so blind are people to the wrongs they see every day, so dull are ears to cries of pain and distress that are continuous and never cease. it would seem as though the conscience of mankind can only be startled into action by some catastrophe, some tragedy obviously brought about by bad government and bad laws, and not until then will it translate its knowledge of evil into demand for reform. the tragedies of imprisonment for debt occurred, but they took place behind closed doors and the world only heard of them by slow degrees. at length, however, the constant repetition of the miseries of the poor debtors who languished in prison, wasting their lives and eating out their hearts in despair, began slowly to convince the man in the street that there really was something wrong with the world and that the cup of human misery of some of their fellow creatures was slopping over into the saucer of despair. timid reformers began to think something might be done. the arguments then, as now, were all one way, but then, as now, there was no one to listen to them. good men had raised their voices to point out the wrong-doing that was going on, and the unnecessary wretchedness that was being caused, but nothing much came of it. there were a few desultory and ineffective movements towards discharging poor debtors, but the matter did not greatly interest mankind, and there seemed to the eighteenth century mind no very clear reason why a debtor once in prison for debt should ever be released. to-day, in the same way, it is difficult to persuade the average citizen that there is any injustice in a debtor being sent to prison for debt. the attitude of mind about the thing is not greatly altered, though happily the amount of injustice and wrong-doing has been lessened. it was not, indeed, until the beginning of the reign of queen victoria, a time of great hope for the poor and distressed, a period which has not inaptly been called "the springtime of social reform," that any practical movement was made. i myself keep march st as the birthday of the movement for the abolition of imprisonment for debt, but anyway it is a red-letter day in the history of english literature and worthy of great honour. for on that day, in the year , the first number of "pickwick," appeared and there is no doubt that the account of the fleet prison in that volume has made it the popular text-book of legal reform in these matters. if "pickwick" in was not the _causa causans_ of lord cottenham's bill to amend the law of insolvency which was introduced in december, , there is no doubt that dickens' stories of the cruelty of imprisonment for debt supplied the motive power necessary to pass it by rousing the public conscience to insist upon something being done. the point of particular reform aimed at by the bill was to abolish what was called arrest on mesne process. it is an absurd term, and it was a still more absurd thing. the wonder is that it had survived as long as it did. mesne process, translated into english, means middle process, and the idea was to lock a defendant up in the middle of the trial and keep him there in case it turned out at the end of the proceedings that he owed the money. it was as popular with the sharks of the eighteenth century as the present imprisonment is with the moneylenders and tally-men of to-day. any person who would make an affidavit that another owed him twenty pounds or more could lock him up pending the trial and, unless the victim could find the money and pay it into court, he remained in the sponging house until the trial came on. harry warrington was served so, if you remember. two gentlemen came from over the way, "one of them takes a strip of paper out of his pocket and, putting his hand upon mr. warrington's shoulder, declares him his prisoner. a hackney coach is called and poor harry goes to sleep in chancery lane." certainly harry owed the money and had been reckless and extravagant enough, but even then the method of arrest strikes us to-day as a little high-handed. nor was it always made use of with honesty. to bold rascals it was a very perfect machine for the wickedest blackmail. an affidavit of debt--and eighteenth century affidavits were no nearer the truth than those of the present century--was all that was required, and if in the end the affidavit was found to be false, the only remedy was to prosecute the swearer of it--if you could find him. a case that lord denman mentioned in the debates in created a good deal of uneasiness in the public mind. a certain portuguese nobleman, the duke de cadaval, on landing at falmouth, or when he was residing at plymouth, was arrested on a pretended debt, thrown into prison, and obliged to pay a large sum of money to procure his release. he afterwards recovered in an action for malicious arrest heavy damages, but he never received a penny of them, nor is there any record that the false witnesses were punished for perjury. there are many stories of this kind, and it was an obvious result of the system of arrest on mesne process. one would have thought that there would have been no difficulty about abolishing a legal machinery that brought about such injustice, but, in truth and fact, it was quite otherwise. indeed, the people who wanted to abolish the excellent and business-like system were regarded as very pestilent and turbulent busy-bodies by the average citizen. another incident of imprisonment for debt at this date was that if a creditor preferred to issue a _ca. sa._ to a _fi. fa._ and took the body of the debtor in preference to the property of the debtor, he thereby discharged the debtor. if, therefore, the debtor preferred imprisonment to paying his debts, the law afforded the creditor no other remedy. there were instances of debtors remaining in prison for over twenty years well able to pay their debts, but preferring to live in luxury within the rules of the prison. _re pickwick_ is perhaps the popular leading case on this point. but whilst we remember with pleasure how the law enabled our dear friend to outwit for a time those wily attorneys dodson and fogg, do not let us forget the terrible sights he saw in the fleet. the chancery prisoner, the fortunate legatee whose lawyers had had the thousand pounds legacy, and who was in the fleet, mending shoes for twenty years because the loom of the law had woven a shroud of costs round him and buried him in prison--he was no fiction. his heart was broken when his child died and he could not kiss him in his coffin. there he remained living a solitary lingering death, lonely amid the noise and riot of the fleet, until god gave him his discharge. this and many another case was before my lords and known to the intelligent commons when the question of the abolition of arrest on mesne process came up for discussion in . it is to lord cottenham, as i have said, that we owe the statute which, to use mr. atlay's phrase, "abolished the bane of mr. micawber's existence, imprisonment for debt on mesne process." nor must it be thought that it was done without a struggle. lord lyndhurst said, and no doubt truly, that, judging from the petitions, he should be within the truth in saying that the bill was very unpopular. the petitions were at least ten to one against the bill. there was no more enthusiasm about mitigating imprisonment for debt then than there is to-day. the history of these things is always the same; the traders objected to the abolition of imprisonment for debt, the newspaper proprietors strenuously opposed the reduction of the stamp acts, the doctors fought against national insurance. yet, when the horrible thing is done, we find them smugly prospering on the reform. lord brougham, who from the very first had always held instinctively the true faith in these matters, pointed out to a reluctant house how credit was imprudently given to the real injury of the customer who is induced to buy what he cannot pay for, and to the injury of those who do pay what they do owe, but who pay the dearer in proportion to the bad debts which the tradesman is led to let others contract with him. further, he emphasised the wrong done by clothing an insolvent person with an appearance of credit by lending him more goods which serve as a bait or decoy to others that have not yet trusted him. he laid down the principle that debt should never be treated as a crime and still less as a crime to be punished at the sole will and pleasure of the creditor, and eloquently called upon the peers to wipe out this foul stain from our civil code. arrest on mesne process was abolished, not ungrudgingly it is true, but it came to an end, and a commission was set up in to inquire and report upon the whole system of imprisonment for debt. this commission ultimately reported in favour of abolition. in another bill was introduced to distinguish between cases where it could be shown that the debtor was an innocent fool and not a culpable contumacious defrauder. it was not of much avail as a social reform, but may be fairly described, perhaps, as a worthy effort. the brightest reading in its history for us to-day is the debate in which lord brougham, with savage eloquence, rubs it in--the modern slang expresses brougham's method so accurately--and jeers at the opponents of imprisonment for debt now that all their cassandra prophecies over the abolition of imprisonment by mesne process have proved themselves to be worthless. abolition of this system had not diminished credit, and had not raised any difficulty in citizens obtaining credit. then, as now, these were the trade arguments against reform solemnly used by business men, officials and lawyers, and though, on each occasion when the reform has taken place, they have been found to be the hollowest nonsense, yet they are repeated to the reformers of to-day with the same pompous effrontery with which they were offered to lord brougham. we now come to , in which year the present state of the law was created, and it is this law which seems to me so unjust to wage earners and poor people who are in debt, placing them as it does in conjunction with the bankruptcy laws in such a wholly inferior position to that of the well-to-do citizens. in order to understand the exact legal position it is, i fear, necessary to deal with the matter in some little detail. the intention of the legislature at the time seems to have been right enough. it was desired, no doubt, that a fraudulent debtor should be punished and that an honest debtor should not. if a means could be invented to carry out this principle no one would utter a word against it. a fraudulent debtor is, i take it, a man who, having ample means over and above the reasonable necessities of himself and his family, conceals them or places them in fictitious names and then defrauds his debtor and refuses to pay him. i should be in favour of more stringent measures being taken against the fraudulent debtor, for one meets him every day, well-to-do and smiling, with a bill of sale on his furniture and everything in his wife's name. but he is the curled darling of the law. he makes use of the law to protect himself and his frauds, and the debtors act, which was intended to abolish imprisonment for debt, has no terrors for him, whilst under its provisions hundreds of weekly wage earners are imprisoned. as sir george jessel said, the real intention of the debtors act, , was to abolish imprisonment for debt for honest debtors and to retain the right of judges to punish fraudulent debtors. many of the sections of the act are framed, and to some extent assist, in the excellent aim of making it hot for the naughty and wicked debtor who has cheated or defrauded his creditors. why is such a person punished? asks the master of the rolls. i give the answer in his own words. "simply because he is a dishonest man. he need not perhaps be called a thief in so many words, but he is a man who takes or keeps money belonging to other people, and he is punished accordingly." instances of such are defaulting trustees and similar misdemeanants, and, so far as the act provides for their punishment, we have no quarrel with it. now no one would contend that the system of imprisonment for debt as carried out in the county courts is a system directed in the main against dishonest men. improvident, careless, foolish and childlike these poor defendants in the county court may fairly be described; but if a day of judgment audit could be carried out, and a balance struck on the item of "honesty" as between the working-men debtors and the class of traders who give them credit, i make little doubt which class, as a class, would show the better figures. no, we do not imprison in the county court for dishonesty _per se_; dishonesty may or may not be a feature of any particular case, but it is not an essential. the order for imprisonment is made under section of the debtors act, . that is the tally-man's charter. i am sorry to bore anyone with all these sections and statutes, but there is such a lot of inaccuracy written and talked about the matter that it is best to set down the actual enactment. we must remember then that the act, being an act for the abolition of imprisonment for debt, had begun by enacting in the fourth section that "with the exceptions hereinafter mentioned no person shall be arrested or imprisoned for making default in payment of a sum of money." these last words state quite clearly the true principle of what the law ought to be. unfortunately for the poor the special exception made for them has only too truly proved the rule. the opponents of abolition were but too successful in their endeavours to make inroads upon the thoroughness of the proposed reform, and one of the exceptions was called "a saving power of committal for small debts." it might have been better described perhaps "as a saving power to imprison poor debtors." this is the famous section of the debtors act, , over which so much controversy has since arisen, on the working of which two important commissions have sat and reported, and under which we may proudly claim to be one of the last civilised countries that clings to a system of imprisonment for debt. it is necessary to set out the section at some length, for it has a googlie element about it and is not so innocent as it appears on the surface. it first sets out "that any court may commit to prison for six weeks any person who makes default in the payment of a debt or instalment due in pursuance of a judgment." that, of course, is plain sailing imprisonment for debt. then, however, follows the sub-section--i again apologise for troubling you with all this, but it is really a good citizen's duty to understand it--which causes all the worry. it is enacted in sub-section ( ) "that such jurisdiction shall only be exercised where it is proved to the satisfaction of the court that the person making default either has _or has had_ since the date of the order or judgment the means to pay the sum in respect of which he has made default and has refused or neglected or refuses or neglects to pay the same." it is the words that i have printed in italics that hit the poor man and the weekly wage earner, for of course it is generally provable that, although he has no present means to pay a debt, he _has had_ since the judgment means to pay which he has spent on the maintenance of his family, or, if you will, on beer or tobacco, or picture palaces, or, in a word, as good solvent middle class people would say--improvidently. the further matters enacted are all sensible enough, granted you approve of the main principle of imprisonment for small debtors. they deal with proof of means of the person making default, allowing such proof to be given in such manner as the court thinks just, and for these purposes the debtor and any witnesses may be summoned and examined on oath according to the prescribed rules. the other material points of the section are that a county court judge must exercise his jurisdiction in open court, he may order the debt to be paid by instalments, he may also make continuous committals on each unpaid instalment, he may vary and rescind the order, and the imprisonment when suffered does not distinguish or discharge the debt or other remedies of the creditor. the debtor can take his release in payment of debt and costs. anyone who studies this act of and comes to the conclusion that this system is anything less than imprisonment for debt, and not imprisonment for fraud, must, i think, be driven to argue that the men who drafted the act called the act an act for the abolition of imprisonment for debt, called section a saving clause for continuing imprisonment for small debtors in certain cases, and did not understand their business. as a matter of fact they knew their business very well indeed, and they carried it out faithfully and well. what happened undoubtedly was this: parliament as a whole was out to abolish imprisonment for debt. there were a lot of old-fashioned folk then as now, who wanted to retain it. compromises were made. it was agreed that there should be abolition, it was also agreed that there should be exceptions. the exceptions readily granted were cases of fraudulent trusteeship and the like. this was not enough for the old gang, so the promoters of the reform threw in poor persons owing small debts. the poor had as few friends in parliament as the fraudulent and they were huddled together into the same bundle of exceptions as a sop to the opponents of the bill. when folk describe our present system in the county court as anything other than imprisonment for debt, a legitimate offspring of its noble norman ancestor _capias ad satisfaciendum_, they do it in ignorance of the legal and political history of the debtors act, . i should like to have set out much of the debate in the house of commons on the second reading of this bill. sir robert collier, the attorney-general, openly expressed his regret that imprisonment for debt was going to be retained in the county courts, and several members spoke wisely about the hardships then inflicted on the poor and the undesirability of continuing them. but the following extract from a speech of mr. mcmahon shows that no one at that time was under any delusion about what was going to be done. "when," he said, "arrest on mesne process was abolished shortly after the passing of the reform bill it was then said that credit would be disturbed, and that traders would not be able to carry on their business. but these forebodings were purely imaginary, and in the same way he believed no evil would attend the good that must undoubtedly result from the final abolition of imprisonment. if, however, they allowed the rich man to escape under the bankruptcy system they ought not to admit the poor man to be liable to imprisonment, for by so doing they would certainly be open to the charge of having one law for the man in broadcloth and another for the man in corduroys." here the warning is clearly given by a man on the spot, that what they were about to do was to set up a system unfair to the poor, and there was really no doubt in the minds of any of the legislators of the day that they were deliberately retaining imprisonment for debt for the poor. i want to insist on this point because one of the stumbling blocks in the way of reform to-day is the strange belief, fostered by the tally-man and his friends, that in some mysterious way imprisonment for debt has really been already abolished and that the working classes really go to prison for contempt of court or some other reason. there is no truth in this whatever. the attorney-general who introduced the debtors act, , may surely be credited with understanding what it was intended to do. he knew well enough that his bill was going to abolish imprisonment for debt for the rich and retain it for the poor. he pointed out that he was making bankruptcy cheaper and more stringent. it would be obviously absurd, he said, to make a day labourer a bankrupt, and that brought him to the very difficult question of county court jurisdiction. at that time the county court had a jurisdiction to punish for fraud as an incident of debt and also to imprison for debt. he proposed to take away the jurisdiction to imprison for fraud and to leave fraudulent debtors, both rich and poor, to the criminal courts. "but then," he continued, "came the other question of county court imprisonment where a man was able to pay his debt, but would not do so. he did not regard that imprisonment as a mere punishment for a past offence _but it was a process of imprisonment for the purpose of compelling the payment of a debt_, and it was a process very analogous to the principle of the bankruptcy law." he came to the conclusion, after further argument, "that this power of imprisonment in the one case he had mentioned must be retained." when an attorney-general in brings in a bill to abolish imprisonment for debt and deliberately tells us that he retains one class of imprisonment for debt, it is inconceivable why people to-day should strive to make out that the system we are working is not imprisonment for debt, but something else. unless it be that the advocates of imprisonment for debt know in their heads that it is an evil, out-of-date system, and they have an instinct that it smells more sweetly under some other name. from to the present there has been no further reform. many hope that there never will be any, but for my part i have no doubt it will come along, not in my time, perhaps, but whenever the right moment may be. from until to-day over three hundred thousand english citizens have been actually imprisoned who have not been guilty of any crime whatsoever. they have been imprisoned mainly for poverty or, if you will, for improvidence--that blessed word that so insidiously describes in the poor that failure in economic asceticism, that lack of cold self-denial of luxury and extravagance, that absence of patient thrift and simplicity of life--characteristic features which are never wanting in the beautiful lives of those social classes above them that the poor must learn to look up to and to imitate. chapter iv how the machine works roll on, thou ball, roll on! through seas of inky air roll on! it's true i've got no shirts to wear, it's true my butcher's bill is due; it's true my prospects all look blue-- but don't let that unsettle you! never _you_ mind! roll on! w. s. gilbert: "to the terrestrial globe." i fear the earth will do a lot of rolling on before we abolish imprisonment for debt, but very likely i am exhibiting a somewhat senile haste in the matter which is unbecoming. to me it appears strange that, whilst in every other science the professors of it are making earnest efforts to place the result of their studies to the credit of mankind, the law seems more incapable than theology of assimilating new ideas and getting into step with the march of time. i have no hesitation in saying that the county court, as a debt-collecting machine, is a one-horse wooden antiquity only fit for the scrap heap. if you went down to euston and found them coupling up puffing billy to the scotch express and the engine driver dissolved in tears, you would understand the kind of hopeless feeling that oppresses me every morning when i sit down to try a hundred judgment summonses. for how can they be said to be tried in the sense in which an englishman is supposed to be tried before he is deprived of his liberty. there is very little evidence, often the defendant makes no appearance and does not even send his wife to tell the tale for him. he cannot afford to leave his work and she ought not to be asked to leave her babies. the word, therefore, of the plaintiff, or, more probably, the debt collector--and many of these men, making it their business and dealing daily with the court, are far more accurate and careful than the plaintiffs themselves--this is all you have to go by. the law, as i told you, left it entirely to the taste and fancy of the judges what evidence they should receive, and though nowadays all judges honestly endeavour, i think, not to carry out the law to the full extent of its cruelty, yet naturally different men hold different views of the rights and liabilities of the poor, and so there is no sort of equality in the treatment they receive in different districts. thus we have in the working of imprisonment for debt everything that is undesirable. the liberty of the subject is at stake, but there is no right of trial by jury, such as the fraudulent bankrupt or any other misdemeanant is entitled to; the evidence on which the debtor is convicted and sent to gaol is any evidence that the judge thinks good enough, and within the limit of six weeks the imprisonment is anything that each particular judge determines. there is, of course, no appeal, and when the prisoner comes out of gaol he still owes the debt, though he cannot be imprisoned again for the same debt or instalment. the multiplicity of these proceedings is appalling. there are over a million small debt summonses issued every year and nearly four hundred thousand judgment summonses, of which about a quarter of a million are heard. what a waste of time and energy it all means. judges, registrars, solicitors, bailiffs, debt collectors, the piling up of costs and fees on to the original debt, the dragging off to gaol of an occasional debtor _pour encourager les autres_, the breaking up of some poor home, the blackmailing of friends and relations very little better off than the poor debtor himself, the squeezing of the pittance out of the bellies of the little children to keep the father out of prison--what a picture to leave on the canvas of our own generation for our grandchildren to scoff at. and the business result of it! even when the debt is paid--if it is paid--after years of waiting and hours spent coming down to the courts seeing if the money is yet paid in--or per cent. paid to a debt collector to do it for you--when all is finished, would it not have been far better if you had recognised that you had made a bad debt and stood yourself a few shillings worth of righteousness in forgiving your debtor his indebtedness? certain it is that the system is useless to, and very little used by, the respectable individual creditor. indeed, if he tries to use it, he stumbles into so many pitfalls and finds the procedure of it so troublesome and uncanny that he very often fails to stay the course, and, after a few wasted days, goes his way and leaves the debtor to go his. the best customers of the county court, indeed the only people to whom the system of imprisonment for debt is of any real service, are those traders who carry on a business which can only be carried on and made to pay by reason of the sanction of the shadow of the gaol which is of the essence of the contract. the tally-men, the moneylenders, the flash jewellery touts, the sellers of costly bibles in series, of gramophones and other luxuries of the mean streets, these are the knaves the state caters for. for these businesses are based, and soundly and commercially based, on imprisonment for debt. the game is to go forth with a lot of flash watches, persuade a workman in a public-house or elsewhere to sign a paper that he has bought one--he always says, silly fellow, that he thought he had it on approval--and when he fails to pay his instalments put him in the county court. i have known a pigeon-flying working man earning thirty-five shillings a week buy a watch priced eight pounds which had a second hand and a stop movement for timing that momentarily overcame his better sense of economy. without imprisonment for debt it would not have paid the servant of the evil one to have led him into the temptation. to these traders the county court is of real value. they issue their plaints in bundles, they take out judgment summonses in batches of thirty, fifty, or a hundred at a time, they can afford to have a skilled clerk well versed in the procedure of the court to fill up the papers, and can run the machine which a complacent state puts at their disposal with very good results to themselves. i remember a firm starting in manchester with the sale of some sort of horse medicine--good or bad is really no matter. the method of business was delightfully simple. the proprietor travelled round in herefordshire and devonshire and persuaded the farmers to try some of the horse medicine. a form was signed which was a contract of sale and a promise to pay in manchester. this gave the manchester court jurisdiction to issue the summonses, which were for sums of under two pounds. letters came complaining that no contract had been intended, that the stuff was worthless, etc., but no one turned up and judgment went by default. the success of the business was its ruin. the plaintiff, tired of filling up the forms of the court and well knowing that none of his customers would pay without process, actually had affidavits of his own ready printed, and this cynical admission of the fraudulent nature of his trade--for an honest man would not expect nearly all his customers to refuse to accept goods ordered--led to his undoing. inquiries were made, one or two farmers were induced to appear and give evidence, and his business career came to an end. i am not, of course, saying that the county court exists only for those who have the courage and effrontery to make the full use of the machine as an accessory to shady trading. but it can be demonstrated that imprisonment for debt is the mainstay of such trades as moneylending and credit drapery and all those low trades that make their profits by foisting shoddy luxuries on to working men and their wives. some time ago i made a careful examination of some judgment summonses taken consecutively. the figures were from the manchester court. i found the following were the trades represented:-- drapers general dealers jewellers grocers moneylenders doctors tailors miscellaneous traders issuing less than four summonses --- general dealers, it must be remembered, are traders in a large or small way of business who will sell furniture, drapery, clothes, cutlery, or anything you like, on the instalment system. their methods of trading are tally-men's methods. if this list be looked at, it will be seen that the general public make very little use of imprisonment for debt. the substantial shopkeeper and ratepayer is scarcely represented at all, the grocers and a few of the big general dealers being the only people who pay rates. some of these general dealers it should be remembered are limited companies having numerous agents paid by high commissions and spending large sums in advertising. their prices are apparently low, but the quality of their goods leaves much to be desired. now what worries me is, why should the state keep courts going for men of this class? the only creditor in that list for whom one can have the least sympathy is the doctor, and the national insurance act has now put him on a cash basis, so that in a list taken to-day he would not appear so often. it is clear from these figures that at a cost to the general body of taxpayers you are encouraging a bad class of parasite traders to choke the growth of thrift among the working classes. for unless you make it ruinous to the creditor for the credit to be given you will never stop it. how can a man at work hinder credit being given through the agency of the wife when the law permits it and caters for it by providing the trader who lives by it with a special debt-collecting machine without which this class of trader were impossible. i have known cases where a working man's wife was dealing with nineteen different scotch drapers. what wages can satisfy such an orgy of drapery as that? how often, too, do men and women buy watches to pawn them for drink or a day at the races? what is this but an evil and ruinous form of moneylending? and what makes these things possible among our poor people? the law siding with the knave against the fool; the saving clause for the imprisonment of poor debtors in the act of . and whereas i shall show you that bankruptcy and divorce are the luxuries of the rich, so it is only fair, i think, to allow that imprisonment for debt is a distinctive privilege that the law reserves for the poor. a man among the well-to-do classes is never imprisoned for debt; the wage-earners are practically the only people who are subject to it. the governor of a gaol reported a case to the last select commission that sat and did nothing on the subject. a labourer was sent to his custody for twenty-one days in default of payment of four shillings and costs, five and ninepence in all. how can a state for very shame prate about the extortion of moneylenders when it adds forty per cent. on to a small debt like this for costs? the man was a widower with four children, the eldest of whom was thirteen, and the youngest two or three years old. when father went to prison the children went to the workhouse. that is all part of the system. the debt was a tally-man's debt for clothes supplied to his late wife. the governor sent it as a typical case for the commission to consider. "as i believe," he wrote, "that there is an idea of having the law on imprisonment for debt amended." the good governor was, of course, entirely mistaken about that. there is no such idea, except in the heads of dreamers and visionaries like elisha and the good governor and myself, and we do not count. so his report ended in nothing, and remains on record as a typical result of the working of imprisonment for debt in a civilised european state in the early part of the year of our lord . i should like to leave the matter there as a horrible example, for so it is, but i am a man of truth--and, in fact, the poor labourer was not kept in gaol. it was afterwards discovered that the good governor, when he investigated the man's case at . a.m. on the morning after his arrest, had paid his debt for him and set him free. you remember that elisha in a similar case performed a miracle by filling several jars with oil. for myself, i think the good governor's was an even nobler deed. and when the supporters of this wretched system tell you that very few people actually go to gaol, that is, in a sense, true. there are only about six or seven thousand, say, who go to prison on a hundred and odd thousand warrants issued. the number too, is decreasing. this is not, however, to the credit of the law, but because, as i shall show, the law is not strictly administered, and also because the public conscience, what lord haldane so graphically described under the german title _sittlichkeit_, is against it. the habit of mind, custom, and the right action of good citizens do not sanction enforcing debt by imprisonment. it is only the greedy, low-down citizens who deign to use it. but the matter is lightly regarded. a few thousand poor people doing time for trumpery debts cannot, anyhow, be allowed to trouble the sleep of the middle-class voter, and what am i but an untaught knave to bring their slovenly, unhandsome corpses betwixt the wind and his nobility? it is not only the very poor who are dragged to gaol that suffer. the system is really one for blackmailing the poor man's friends and relations. you ask a debtor when he comes before you on a second instalment of a debt: "but you managed to pay the first instalment?" "yes," he replies; "but i had to borrow it from my brother-in-law, and i have not paid him back yet, and he can ill-afford to lose it." i have heard that story hundreds of times, and i know it is often a true one. bailiffs will tell you that on the road to gaol a prisoner will ask to be allowed to call at various houses, looking for an elisha, and if he cannot find anyone to work miracles nowadays he does very often find someone with five and ninepence and a kind heart. the poor are very good to one another in distress, and it is better that a brother man should be saved from gaol and restored to his home and children than that the landlord should have his next week's rent. in the bad old days a county court judge openly said that he found it better to commit to prison for six weeks rather than any shorter period, for he found that the longer the period for which he committed people to prison the shorter the term served, "because when they were committed for the whole six weeks they moved heaven and earth among their friends to get the funds to pay." friends of the system of imprisonment for debt call this "putting the screw on." i think "blackmailing" is the straighter english--but any dirty old phrase will do. and an enormous evil, the extent and results of which can only be guessed, is that the power to send a fellow citizen to gaol for debt, the power to issue or not to issue a warrant for his arrest at any moment after he is in default, places a man and his family so entirely at the mercy of his creditor that, if the creditor be a man of bad character, terrible results may follow. few of us probably have not heard stories of an evil-minded creditor using his power to seduce the virtue of a wife in her husband's absence. there is certainly truth in such stories. human nature is the same in narrower lanes than park lane. the tally-man plays on the wife's love of finery, she gets into debt, her husband knows nothing of it. as long as the wife is complacent nothing is heard of the debt. i do not say such scandals are common, but i have heard enough of such stories to know they are not fairy tales. human nature being what it is the wonder is that these dramas are not more often enacted. when the poor have their divorce courts no doubt the evidence of them will be forthcoming, meanwhile they rest mainly on the complaints of women of insults offered to them, which may be fabrications, but are not always so. what a responsibility rests on a state that maintains a system which leads to such evils. another and less terrible affair is the political influence wielded by a grocer or draper over the free and independent voter whom he can put in gaol for twenty-one days if he fails to see eye to eye with him at election times about disestablishment or tariff reform. yet this is one of the minor evils of the working of the debtors act of . in a hard-fought lancashire election which ended in a tie there was a great flutter and to-do caused by the arrest on the eve of the poll of some earnest debtor of one colour by an equally earnest creditor of another colour. it may, of course, have had nothing to do with the election--but one never knows. anyhow, it happened, and it was certainly not a desirable incident from the point of view of the losing candidate. the theoretical arguments against the abolition of imprisonment for debt are few. the chief one is that a working man would be unable to get credit in times of distress. personally i do not believe it. the argument has been used on every occasion when any legislative step has been taken to mitigate imprisonment, for always the prophecy has been: trade will suffer and individuals, for want of credit, will starve. on every occasion the facts have obstinately refused to honour the prophecy after the event. i am inclined to back history against prophecy in this matter. credit will be given to a working man of good character to a reasonable amount, but he will not be tempted, as he is to-day, to mortgage his future wages on the security of his body for every passing whim. beer is a cash business, betting is a cash business, picture palaces, railway trains, tram cars, slot machines, are all run on a cash basis, yet no one will pretend that the working man does not get as much as he wants of the goods and services of all of them. to-day the temptation, and very largely, i am sorry to say, the practice, is for a workman to make the brewer and the betting man first mortgagees of his weekly wages, whilst the draper and the grocer are too often very ordinary shareholders indeed, obtaining an irregular dividend ranking after the treasury fees of the county court. can anyone honestly say that it would not be better for the draper and the grocer to have their working-class business put on a cash basis. abolish imprisonment for debt and the grocer and draper will demand cash in advance or, at the worst, weekly bills. the workman will then be face to face with the immediate question of whether he prefers to spend his wages in drink and pleasure for himself or food and clothes for his wife and children. i have no doubt what his answer will be. the working man is of the same nature as ourselves. in the old days of general imprisonment for debt everyone lived in debt. the middle classes were tempted to live beyond their means and did so, and the micawbers of the world were always being carried off to prison, leaving their families in tears. now such a state of things is unknown. through the great private and public stores the middle classes buy for cash the best material at the cheapest prices and live within their incomes. the result in their lives is matter of social history. why is it to be supposed that any different result will be arrived at when the working classes are no longer tempted by a false system of credit? "the motive of credit," says dr. johnson, "is the hope of advantage. commerce can never be at a stop while one man wants what another can supply; and credit will never be denied whilst it is likely to be repaid with profit. he that trusts one whom he designs to sue is criminal by the act of trust: the cessation of such invidious traffic is to be desired and no reason can be given why a change of the law should impair any other. we see nation trade with nation where no payment can be compelled. mutual convenience produces mutual confidence and the merchants continue to satisfy the demands of each other though they have nothing to dread but the loss of trade." this argument was against imprisonment for debt as the worthy doctor saw it in his own time, but it is just as convincing to-day about our own or any other form of imprisonment for debt. it goes to the principle and the root of the matter and, like many another of his best sayings, is the knock-out blow on the subject. further, we have proved in our own country the beneficial effects of the abolition of imprisonment for debt, and other countries have set us the good example of doing away with it altogether. in germany they have a strict system of enforcing judgments against well-to-do debtors who seek to cheat their creditors, a class to whom we are somewhat indulgent, allowing many fraudulent persons to live at the expense of tradesmen by the simple expedient of putting goods in their wife's name. but this procedure is not available against working men, and the result is that they have to pay their way as they go along. dr. schuster, an english barrister and a doctor of laws of the university of munich, explained the german system of debt collecting to the commission of . not only did he make it clear that the german workman had, in the absence of imprisonment, acquired habits of thrift that our system discourages, but he pointed out that the insurance funds against sickness and accident, the trades unions, the co-operative societies, and charitable relief, enabled a german working man to tide over bad times without hanging a millstone of debt about his neck as he has to do in this country. in the same way in france there is no imprisonment for debt for the poor, and so far from the french admiring our debt-collecting system in england they think it so expensive and futile that french traders absolutely give up all hope of recovering small debts in england and prefer to write them off as bad. and, indeed, i have more than a suspicion that if one could get an accurate financial history of the collection of a forty shillings' debt in the county court by means of imprisonment for debt, one would find that, when treasury fees, solicitor's costs, and creditor's time wasted had been duly paid for, there was very little balance to credit in the plaintiff's ledger. the more one sees of the system the more is one convinced that it is only serviceable to those creditors who use it in a wholesale manner to recover undesirable debts. and though in theory i can find no serious argument against the abolition of imprisonment for debt, yet there is one practical difficulty in carrying it out which will have to be faced. the county court registrars in the small courts are unfortunately paid by fees on the number of plaints issued. a moneylender or tally-man who cleans up his books once a year and brings into court a few hundred plaints automatically raises the salary of the registrar. if this debt-collecting business is swept away, compensation for the disturbance of these salaries that have been calculated on this basis for many years must certainly be made. probably it is this real practical objection that stands between the debtor and freedom. i am not alone in thinking that the time is fast coming when the inconvenience of having as the registrar of a court a solicitor in private practice paid by fees on the number of plaints will be so fully recognised that the country will demand a sweeping alteration in the system. the abolition of imprisonment for debt will give the courts time to entertain jurisdiction for divorce and other matters where the poor are entitled to the same legal favour as the rich. when these reforms are made it will be found necessary, i believe, that the registrar of each court or group of courts should be a whole-time permanent official. one other point remains to be mentioned. it is commonly said of those who desire to abolish imprisonment for debt that they have a lower sense of honesty than their opponents, that their views tend to encourage the man who runs into debt and will not pay when he can. for my part i care not how strict the law is made against dishonesty and debt resultant from dishonesty, but let the imprisonment be imprisonment for dishonesty and not for debt. if the debtor has acted criminally, let him be tried in a criminal court and punished for dishonesty. in the old days a county court judge had powers to imprison for dishonesty, now he has only power to imprison for debt. it is because i believe that the abolition of imprisonment for debt will improve the character of our citizens, as it improved the character of the athenian citizens more than two thousand years ago, that i have put in so many hours overtime in the advocacy of its abolition. but whilst i would abolish imprisonment and should like to see the english workman paying his way like his german brother, whilst i am eager to see the poorer classes freed from the misery that debt and extravagance brings upon them to-day, yet no one, i hope, recognises more clearly than i do the sacred duty of a debtor to pay an honest debt. every penny that he can save after his first duties of maintenance of wife and family should be devoted towards the repayment of debts. but this is a personal obligation on a man, like speaking the truth, or treating mankind with courtesy, and, in a word, is only a branch of the golden rule of doing to others as you would be done by. the breach of this obligation ought not, as it seems to me, to be treated nowadays as more than a case of a flagrant breach of good manners, and i would rather imprison a man who forgets to shut a railway carriage door when he gets out on a winter night than a man who omits to pay me the five shillings he borrowed yesterday. both are ill-mannered fellows and must be dealt with socially, but not, i think, by imprisonment. debt, except from misfortune, is really "worse form" than drunkenness. when that is generally understood no debtors act will be necessary. and the right feeling of a respectable debtor towards his creditor seems to me stated in very apt and beautiful words by old jeremy taylor in one of his "prayers relating to justice," in which he sets out the correct petition to be made thus: "and next enable me to pay my duty to all my friends, and my debts to all my creditors, that none be made miserable or lessened in his estate by his kindness to me, or traffic with me. forgive me all those sins and irregular actions by which i entered into debt further than my necessity required, or by which such necessity was brought upon me; but let them not suffer by occasion of my sin." and if all debtors were moved by the aspirations included in this noble prayer, and if all creditors refused credit to poor folk unless they believed them to be men of such a character that the ideas of the petition were really living in their hearts, then, i think, there would be no need of imprisonment for debt or for county court judges either. indeed, the millennium would be at hand. but short of that great day, we are surely entitled to act as though the majority of mankind preferred right action to wrong action and not to encourage a class of debtors and creditors whose _nexus_ is force and imprisonment rather than friendship and goodwill. the working man should be able to say with piers plowman: "though i should die to-day, my debts are paid," and the law should help him to that end. chapter v workmen's compensation your plea is good; but still i say, beware! laws are explained by man--so have a care. pope: "first satire of second book of horace." an interesting volume might be written about historical litigants and their deeds of heroism. there was the dour coggs who let in his friend bernard over the brandy cask, there was the astute scott who never paid manby, the draper, for his wife's dresses, there was wigglesworth who built himself an everlasting name in the hibaldstow trespass case, and the hero of our own time, dickson, who actually bested a railway company in the matter of dutch oven, the tail-less hound--these and many others are names enshrined in our dusty tomes of law, but if you would read them for mere delight, has not sir frederick pollock done our leading cases into the most melodious verse. if i were a bencher i would like to promote a pageant of these grand old litigants in honour of their service to the english law. i think my favourite among them all is little priestley, the butcher's boy. you will find his simple story in the third volume of "meeson and welsby." how many know that it was at the lincoln summer assizes of that the brave butcher's boy began it, and started a train of legal thought reaching out to the workmen's compensation system of to-day? it was priestley's duty to deliver meat, and one day fowler, his master, sent him out with such an over-load of beef and mutton that the cart broke down and poor priestley broke his thigh. priestley brought an action against his master, and the jury gave him a verdict for one hundred pounds, but on appeal the judges would not have it, and so poor priestley never got it. a servant, they said, is not bound to risk his safety in the service of his master; he may decline any service where he apprehends injury to himself. lord abinger, c.b., who presided in the appeal court, admitted that there were no precedents either for or against such an action, but he was hard put to it to explain in legal terms why the little butcher's boy, who was certainly a brave explorer into legal hinterlands, was not to be allowed to peg out the claim the jury had awarded him. his lordship was driven back to "general principles." the most learned lawyer of our day, the late mr. danckwerts, once said to me when i was a very young man at the bar and talked glibly in consultation about the "broad grounds of truth and justice": "if we have nothing better to rest our case on than that, god help us in the court of appeal." he then proceeded to show me some cases on the subject which my ignorance and inexperience had failed to discover. and it was not that the great man was not a lover of truth and justice, but that he knew that law meant, not what he and i and our client thought to be truth and justice, but what all generations of calm thinking men outside the dispute ought to think to be truth and justice, and that was to be found in the decisions in similar cases which he knew as no other lawyer ever did and about which i showed the common ignorance of my contemporaries. lord abinger, then, having no cases to guide him, played a lone hand, and naturally played it from the point of view of the man who held the cards. if, he said, the master be liable to the servant in an action of this kind the principle of the liability would carry us to an alarming extent. for instance, if a master put a servant into a damp bed or a crazy bedstead or gave him bad meat to eat he might be liable in damages to his servant. "the inconvenience, not to say the absurdity, of these consequences," afforded a sufficient argument against poor priestley and all other servants in like case. priestley broke his leg and lost his case, and legal history does not record his future career. but, though lord abinger was against him, he might fairly have said in the phrase of a celebrated and eloquent manchester surgeon that, "this day he had lighted a candle which would bring forth good fruit." several minor heroes made legal efforts to get behind this judgment, but the judges were too many for them. it was strongly endeavoured to make masters liable to their servants for injury caused by the negligence of a fellow servant, but the judges declared that, when a servant enters a service he contemplates all the ordinary risks of his work, including the negligence of his fellow servants, and that allowance is made for this by the master in fixing his wages. this "doctrine of common employment," as it was called, was, of course, largely a figment of judicial imagination, and it set back, or rather kept back, the hour of industrial reform for more than one generation. there never really was a law of that kind. it is what is rightly called judge-made law. the judges said that it was "inconvenient" and "absurd" for masters to be responsible for negligence of their servants. so, of course, it was--to the masters and in that finished the matter. thus it came about that in a railway accident, if it was caused, let us say, through the negligence of the company's signalman, every ordinary passenger got compensation out of the company, but the engine driver, the stoker, the guard, and their widows and orphans got nothing. note, however, that if the signalman had belonged to another company it would have been quite otherwise. in the old days when druids sat under oak trees i daresay judge-made law was all very well, though no doubt the personal prejudices of the druids were manifest in their decisions. but since the days of the ten commandments it has been recognised that statute law, carefully considered and simply expressed and written down on tables of stone or otherwise, is a better-class article for ordering the affairs of a modern community. no doubt the judges of , being men connected with the upper middle classes of the day, could not conceive how civilisation and social order could exist side by side with a wicked system whereby a master had to compensate a workman injured in his service. the thing was as incomprehensible to the judicial mind of that date as the fifth proposition of euclid is to many a third-form schoolboy to-day. some of our judges are still in the third form in their ideas of sociology. that is one of the dangers of judge-made law. it is bound to put the stamp of old-fashioned class prejudice on its judgments. if the judges had been labour leaders they would have discovered an implied contract for the master to pay compensation with equal complacency. the fact is that _natural justice_ is merely justice according to the length of the judge's foot, as the common saying is. and the length of a judicial foot will depend on the evolution of the judge. that is to say, according as he and his ancestors have rested their feet cramped in pinched shoes under the mahogany of the wealthy or tramped barefoot along the highway in the freedom of poverty, so will a judge's principles of natural justice favour the rich or the poor. we cannot get away from the fact that our judges make a great deal of law. the idea that a law is somewhere in existence and that the judges merely adopt it will not, i think, hold good for a moment. it is, indeed, a legal fiction. as a great american jurist, professor john chipman gray, of harvard, asks: "what was the law in the time of richard coeur de lion on the liability of a telegraph company to the persons to whom a message was sent?" the answer to this question is obvious. when one reads from time to time of decisions of the courts that are upheld for a generation and finally overruled it is against the truth to speak of a pre-existing code of laws which the judges merely administer and expound. and the reason this is not openly acknowledged and that this mysterious bogey of pre-existent law is worshipped in our courts of justice is, as professor gray tells us, that there is an "unwillingness to recognise the fact that the courts, with the consent of the state, have been constantly in the practice of applying in the decision of controversies, rules which were not in existence and were therefore not knowable by the parties when the causes of controversy occurred. it is the unwillingness to face the certain fact that courts are constantly making _ex post facto_ law." this is why we maintain the fiction of the continuous pre-existence of law. the fear among those in authority seems to be that it would be unwise to openly recognise the real extent of the judicial power, as it would be unpopular and widely rebelled against, and that under the soothing fiction of the existence of an imaginary body of law and by the constant humble assertion of the judges, that they are not there to make laws, but only to administer them, the man in the street is deceived for his own good. for myself i have grave doubts whether this juggling with facts is to anybody's benefit. if it were recognised that in giving decisions at common law, and also in the interpretation of statutes, judges were not only declarers of existing law but makers of new law, then it would be possible to discuss and perhaps control or direct the law-making power of latter-day judges which from time to time manifests itself in unbalanced social judgments. when the telephone was invented by alexander graham bell, the postmaster-general of the day claimed that it was a species of telegraph within the meaning of the telegraph act, . scientifically, of course, it was no such thing. economically and in the interests of the community it was essential that the telephone should not be handed over to a public department predetermined not to give it a fair chance of development. lord kelvin and others pointed out what was the right policy in the matter, and, if the affair had gone to a parliamentary commission, his words would have had weight and a telephone development act might have brought about excellent results. in that case the future of the telephone would have been settled by parliamentary law. it was, in fact, settled by mr. justice stephen in , who declared that the telephone was a telegraph within the meaning of the telegraph acts, , , although the telephone was not invented or contemplated in . in this way its proper development in this country was arrested for more than a generation. this is a remarkable instance of judge-made law. why should an individual citizen just as unversed in science and business as the man in the street have the right to enact what should or should not be done with an entirely new invention which was not in existence when the statute which he pretends to apply was enacted. if the judges decided that an aeroplane plying for hire was a hackney carriage it would in law remain liable to all the statutory hackneydom of carriages until parliament otherwise ordained. is it not becoming time when judges, instead of making new and often reckless law, should be satisfied with declaring that in the case before them there is no law to their knowledge, and it is for the legislature to consider and enact some. if this had been mr. justice stephen's decision in _the attorney-general v. the edison telephone co. of london, ltd._, how much better for all of us to-day! again, in the workmen's compensation act, parliament, it is known, intended and desired to express many things which the judicial interpretations of the act have altered and amended out of all recognition. it is scarcely true that these interpretations are all of them due to the verbal inaccuracy of the parliamentary draftsman, because one often finds the court of appeal taking one view of the meaning of the words and the house of lords another. the real parliamentary object of the act is now very difficult to understand and ascertain from the language used in the judgments interpreting it. if law were really a science and the interpretations of statutes by judges merely an ascertaining of parliamentary intention, one would not expect to find such different interpretations put upon the same words and the parliamentary intention so openly ignored. in america grave popular discontent has arisen over the law-making propensities of judges and their bold refusal to carry out the intentions of the legislature. we have no such widespread feeling in this country, nor are we likely to have, but, all the same, if we were to recognise the law-making power of our judges and openly discuss it and endeavour to define and limit it, there would be less fear in the future of a rupture between the people and the judges when futurist laws of far-reaching social reform come to be administered by the courts. the lamentable failure of consistent interpretations of the compensation acts is not calculated to raise the judiciary in the affections and respect of the working classes. this matter is really one of grave importance, for though in a sense and up to a point, whatever a judge decrees is for the time the law--that time may only be short. in the end the law must express the wills of those who rule society. professor vinogradoff well says, in that excellent little treatise "common sense in law," we ought to "realise that law has to be considered not merely from the point of view of its enforcement by the courts: it depends ultimately on _recognition_." when, then, we openly confess that our judges are making new law every day we shall have to impress on them--especially in social matters--that the new law they make should be, like new parliamentary law, founded on the best aspirations of modern hopes and thoughts of the future life of our people, rather than on the musty creeds and traditions in which the individual human beings who are judges have unfortunately for the most part been educated. judge-made law, like any other law, can only be of value to the community by popular recognition of its wisdom. the more the judges can keep to the real administration and interpretation of laws already existing the better for everyone, but new points of difference and a new social order of things naturally bring before the judges cases which can only be decided by their making new laws. when it is freely acknowledged that this is so, not only the community but the judges themselves will be called upon to consider and decide the ideals and principles by which they ought to be actuated in their capacity of lawgivers. the law that was laid down to meet the case of the butcher and his boy became the law under which every railway servant, every miner, every mechanic, every navvy--the huge industrial army working under impersonal boards and committees of limited liability companies--risked his life in his daily work at his own expense. from to men were killed and injured by the thousands in industrial work and there were no pensions for the widows and orphans, no compensation for the wounded. moreover, such a system discouraged employers from spending money on safety devices. no doubt many good and wise employers did a great deal to safeguard their men; equally no doubt, servants, being but human, were often injured and killed by their own carelessness and recklessness. the deplorable part of it was that the law had taken up an attitude against the poor in this matter and, as things stood, it was to no company's interest to spend their money and decrease their dividends by safeguarding the lives and limbs of their servants. this is still so in america, where on the railroads one man is killed for every two hundred and five employed and one is injured in every nine. "war is safe compared to railroading in this country," is the comment of mr. gilbert roe, the american jurist. of course, at all times much was done by private charity of employers and others to help those who fell in the industrial fight. in great colliery, shipping, or railway disasters subscriptions were made, no doubt, just as they are to-day, but the little obscure cases that mount up to many thousands in the annual statistics of the industrial killed and wounded were left to chance and charity. the employers' liability act of gave certain workmen limited rights of action in special cases. it was a prudent conservative measure brought in by a liberal government, and, of course, it was predicted that it would ruin every industry in the country. it must have cost industry a big bill in lawyer's fees. every case under the act was fiercely litigated, and might go from the county court through two courts of appeal to the house of lords. i do not like to write ill of the poor statute. it is not actually dead, but moribund, and in the years gone by, when we were both young fellows i had many a good outing at the old fellow's expense, and he did me very well indeed. therefore, of the employers' liability act of i will say no more than the man in the gallery did about the bride when the minister asked, "who giveth this woman away?" "i could, guv'nor, but i ain't going to." but when we come to the workmen's compensation acts that is another matter altogether. the county court judges have never received a penny for the extra work thrust on them by these acts, and therefore there can be no indelicacy or indiscretion in speaking one's thoughts plainly about the system. and of the idea, and to a great extent of the achievement, of mr. chamberlain's scheme--for to him must the praise and honour be given for bringing it about--one cannot speak too highly. the theory at the bottom of it is exactly the opposite of the theory at the bottom of the judges' decision against poor priestley. it is best put in these memorable words of mr. asquith: "_when a person, on his own responsibility and for his own profit, sets in motion agencies which create risks for others, he ought to be civilly responsible for his own acts._" that is the magna charta of workmen's compensation. it cannot be better stated. and the promises and intentions of the new act were splendid. for sir matthew white ridley said that the act would prevent uncertainty, and the parties would know what their rights were, and that it provided a simple and inexpensive remedy and would prevent litigation. mr. chamberlain pointed out that up to then, in , only per cent. of accidents were dealt with, but that he hoped that now the other per cent. were to be brought in. his plan was so simple. an injured man in certain trades had only to ask for compensation, and receive it according to a fixed standard. state-paid doctors and arbitrators were to settle the details of the man's injuries and the amount to be paid to him. in his own words, "we wish to avoid bringing in again under another name the old principle of contributory negligence." a man was to receive compensation when injured in the service, even if he himself had been negligent. i often think if mr. chamberlain had had health and strength to see the workmen's compensation business properly through he would have dealt with the lawyers who mangled his excellent scheme much as theseus did with procrustes when he met him on the banks of the cephisus. procrustes, you will remember, was a robber of attica with a quaint sense of humour and a bedstead. if a traveller asked his hospitality he invited him to the bed, to which he tied him. if his legs were too long he cut them off, and if his legs were too short he pulled them out to the right length. procrustes had the calm judicial mind of the court of appeal, and within his narrow limits knew exactly what he wanted to do and how to do it. but it was rough on the traveller. and it is rough on a humane, simple, wise scheme for the benefit of the poor on leaving the hands of that great reformer and statesman, mr. chamberlain, to find that it is being martyred by the procrustes of the law so that it may fit his narrow bed of justice. i think some of the decisions of the court of appeal would have been too many for mr. chamberlain, and he would have severed their connection with the workmen's compensation business as theseus severed procrustes' connection with the bedstead business. it is certainly not putting it too strongly to say that the judicial body, speaking generally, did not love the workmen's compensation act. the idea at the base of it that a man should compensate another outside the scope of contract or wrong was to them out of harmony with the english law. there never was a more honest or single-hearted judge than a. l. smith, who was master of the rolls when the earliest cases came up for decision in the court of appeal. the social creed of "a. l." was something between that of the church catechism and the _sporting times_. he was beloved by rich and poor. his ideal world was one where a good-natured aristocracy would confer kindnesses on a well-mannered democracy, who should receive them in a jovial and grateful spirit. there is no doubt that he endeavoured, as did all the judges of the court of appeal, to rightly interpret its provisions; there is equally no doubt that the spirit of many of the interpretations placed upon the draftman's words did not give effect to the intentions of mr. chamberlain and those who had passed the act. this one can only trace to the habits of mind and social creeds of judges like "a. l." who were wholly out of touch with the beliefs and hopes of industrial democracy. the act of parliament ought not to have been sent to the court of appeal at all. it was not founded on any legal principle, it was an insurance scheme that wanted business men to work it, and, as mr. chamberlain had foreseen, lawyers and litigation could in no way assist its working. it cannot be gainsaid that the legal history of the workmen's compensation act is not a thing for lawyers to boast about. no one has a greater respect for the court of appeal--and, indeed, for all my spiritual, legal, and worldly pastors and masters--than i have. humility towards those who are called to any honour amongst us is my foible. i admit i have but a poor stomach for law and that i often find the learned judgments of appeal courts a little indigestible, but i remember the irishman sampling the twopenny racecourse pies, and piously murmur to myself, "glory be to god, but they're dam weighty." no one would deny the learning, subtlety and weight of the judgments in the court of appeal on the workmen's compensation act, but, speaking as a common arbitrator who has to work the act at first hand and make it human food for shattered men and widows and orphans, they have not tended to make my task easier, they have not simplified and assisted the scheme as a compensation scheme, and they have not been in harmony with the spoken intentions of the author of the scheme. this, i think, to be due, in the first place, no doubt to the imperfections of the act, in the second, to the fact that the appeals come before learned judges who have never administered the act in cases of first instance and have had no practical experience of its working, and, in the third place, to the fact that to much of the higher judicial intellect the theory of workmen's compensation is in itself unscientific, and therefore repugnant. nearly all the cases, and there are, i regret to say, many, where the court of appeal has overruled the county court, and the county court judgment has ultimately been restored by the house of lords, the error has been in the court of appeal striving to find a reason to hinder the payment of compensation, rather than searching for the principle which brought an admitted injury within the scheme that parliament has made to compensate the injured. after all, the act was one for the compensation of workmen, and every case of injury that is found not to be provided for is a blot on the scheme. the expense of all these appeals, is of course, a terrible burden, and to a workman without a trade union behind him would be impossible. great confusion has been caused by having to work certain matters for considerable periods under decisions of the court of appeal that have afterwards had to be dealt with differently by decisions in the house of lords. very likely if there were a further appeal to a house of archangels the court of appeal would be upheld. but to the injured man in the works and the arbitrator waiting to award him his few shillings a week what could be more pitiable and exasperating than the delay and expense that the present method of working the act entails? one solid reason why the appeals in workmen's compensation cases should be removed from the court of appeal is that they cannot be heard within a reasonable time. the _law journal_ of june th, , states that there are seventy-three workmen compensation appeals waiting to be heard, of which no less than ten were entered in . it would be interesting to know how the appellants manage in the interim. the act itself was difficult enough no doubt to make into a good working scheme by those who desired to do it; the hundredweights of handsomely published and learnedly edited reported decisions as to what it really means have made it hopelessly impossible to comprehend and increasingly difficult to administer. to sum up the position of the act to-day, with its myriad encircling decided cases, one can only say, with the immortal sergeant arabin, that it "bristles with pitfalls as an egg is full of meat." when you have an act of parliament that in at least a dozen reported cases is solemnly decided to mean _x_ in the court of appeal and _y_ in the house of lords, _x_ representing "against the workman" and _y_ "for the workman," what does the man in the street think about it? and yet i cannot believe there is so much difficulty about construing the act if the courts would all steer by those excellent sailing directions of lord halsbury and lord davey. lord halsbury said: "the broad proposition, of course, was that the legislature intended that there should be compensation given to every workman in certain trades when an injury happened to him in the course of his employment." lord davey said: "i entirely agree with what has been said by my noble and learned friend on the woolsack that you ought to construe this act so as, as far as possible, to give effect to the primary provisions of it." now the primary provision of the act was to compensate workmen for injuries, not to leave them uncompensated, and to do the business promptly and simply. we want more of the spirit of the act and less of the letter, and a great deal fewer forms and orders and rules. in a word, more business and less procedure. as a dear old lady said to me when, after several efforts to set her affairs right, the registrar and myself had at last got her to fill up the papers necessary, as things are now, to get her case through: "i tell you candidly, judge, all this filling up of papers and signing things has been more worry to me than the loss of my old man." and i'm sure she loved her old man--so what must she have thought of us and our act of parliament? there may be some who think that it is almost indelicate to discuss such a subject as the possible fallibility of the higher judiciary. i agree that it is a subject that can only be treated by one imbued with that reverence for existing institutions that so happily results from a sane middle-class education. moreover, we cannot shut our ears to the sound of much discussion about what is called judicial bias by the man in the street. in america the sounds are louder and clearer than they are in england, and the problem is so much the simpler to understand--especially for the onlooker. there are great lessons for us to study if we would avoid the troubles which the american judges have been assiduously looking for and are now successfully finding. two interesting books written from different standpoints, gilbert e. roe's "our judicial oligarchy," , and frederick n. judson's "the judiciary and the people," , show the eagerness with which lawyers who have human interests outside the daily problems of their profession are discussing the great questions of the law and the poor. the judiciary in america is differently chosen from that in this country and in some ways it has greater powers. its instinct and bias are similar to those of our own judges, but it has not been so successful in instilling into the minds of the citizens a belief in its infallible honesty of purpose. there is no doubt that in america there is a growing distrust of the integrity of the courts and a feeling that the judges in their sympathies and views are on the side of wealth and against the working man. much of this arises, no doubt, from circumstances which do not obtain here. but that the middle-class instinct exists on the american bench even more strongly than it does here can be seen in their history of workmen's compensation which to an english lawyer is strange and confused reading. the common law of america in this matter is the same as the common law of england. the failure of priestley, the lincoln butcher boy, settled the law of america as completely as it did the law of this country. and though different legislatures have endeavoured in different ways to remedy the grievances of employers, the judges have made this not only difficult, but in some cases impossible. in congress, with the approval of the president, passed a carefully and well-considered "employers' liability act" relating to common carriers in the district of columbia. when it came before the supreme court of the united states this law was held to be unconstitutional by five judges as against four. to my mind there can be no comparison between the influence and common-sense of the judgments. the counting of heads was against the statute, but the expression of the contents of the heads showed a resultant force of brain power in its favour. the chief argument of the majority was that some of the clauses of the statute were "novel and even shocking," just as lord abinger found poor priestley's contention inconvenient and absurd. later on, in , the court of appeal found the workmen's compensation legislation of new york to be unconstitutional, because it placed a "burden upon the employer without any compensatory benefit." in america the judges have been able, for reasons that would certainly have appealed to the late master of the rolls and many of his colleagues, to cancel popular legislation. this has roused a direct conflict in america on the subject of the law and the poor, and there is a growing feeling that the courts are not discharging their duty in relation to social and industrial justice. the recall of decisions and the recall of judges are popular cries, and there is much public discussion of such themes. these things are of interest to us because our laws and our poor come from the same stock and, though we pride ourselves, and i think rightly, on the superiority of our legal machine, yet it is not so perfect that we may not learn something from the troubles and difficulties of our neighbours. if the working class should, even on false premises, come to a conclusion that they could not find justice in our courts owing to judicial social myopia, it would be a sad day for everybody. for my part, though i quite recognise that there was a bias in the late lord abinger, for instance, against poor priestley's way of looking at things, i do not think that anyone believed then or believes now that he gave his judgment in any unrighteous class spirit adversely to the rights of priestley and mankind. on the contrary, i think he did his best. he expressed what he and his fellows believed to be the law. this idea of "bias" in judges is well worth a little consideration. we have not the same problem that america has about our judiciary and, let us hope, we never may have, but no one who knows the working man can fail to have observed that he has been, as he would say, colourably--i modify the adverb--"colourably fed up" with several recent judicial decisions. it has certainly become too common a thing in england to grumble about our judges, and to say--especially when the costs are taxed and the bill is delivered--that the judge was biassed. but let us remember that it is our birthright to grumble. to grumble, as cox pointed out to mrs. bouncer, is a verb neuter meaning to complain without a cause. in england we grumble at all our best beloved--our wife, our children, our weather, our constitution, the three-year-old that fails to carry our money to the winning-post, and the stewards who disqualify him when he does. and when we grumble at our judges and say there is bias on the bench it is only our little way. for what is "bias"? i have never been able to make out why the word should have a sinister meaning. bias--as all good bowlers know--is that mysterious weight within a good "wood" or bowl whereby the skilful is enabled to direct it by an arc-like course towards adjacency of "the mark," which is the historic name of the jack. in lancashire, where the game of bowls is played, as it should be, upon a crown green--and not, as in the south, on a tame, flat rink--the bias and the use of the bias make the glory of the green. by means of bias scientifically used we may reach "the mark" by the circuitous "round peg," or play straight up against "the watershed," as i once heard a geologist among bowlers describe the slope of the green. what grave problems have to be judicially decided on the green as to the use of "thumb" or "finger" bias before the "wood" is delivered! what anxiety is pictured on the face of the bowler! what contortions of his body are involuntarily indulged in as the bowl speeds on its way and does--or more often does not--carry out the intentions of the bowler! and therein, i think, lies the secret of the evil meaning we have given to the word "bias." we see our "wood" careering across the green and hear it fall with a dull thud on the path beyond, and instead of blaming ourselves we blame the bias. thus, owing to the alarming prevalence of duffers on the green and in the greater world surrounding it, the word "bias" has come to be regarded as a tendency that leads astray rather than a tendency that keeps straight and is up to "the mark." and when i am asked whether there is bias on the english bench, i cheerfully reply that i hope and believe there is. i have met with unbiassed bowls, and very poor "woods" they were. i have met with men almost devoid of bias, and i never found that they were continuously up to the mark. bias is as essential as character to both "woods" and men. as far as i remember i have never met a judge without "bias" and seldom seen one whose bias was not fairly under control. we want bias on the bench because we like to feel that the men who decide our disputes are not mere automatic legal slot machines, but human beings, with likes and dislikes similar to ours, trained to hear and determine our disputes and honestly endeavouring to decide the cases without fear or favour. when judicial bias carries the judgment beyond "the mark" we grieve not that the bias is there but that it has been injudiciously used. from the true bowler's point of view there is only one bias, a bias towards things, but in our vulgar misuse of language we speak of a bias against things. and if that is to be allowed no one would grudge a poor working judge his right to a bias against fraud and dishonesty, greed and oppression. such a bias should indeed be instinct in him in the same way as a golfer has a bias against bunkers, a terrier against rats, and a mongoose against snakes. but even a good bias requires strict and cunning control. i remember a very excellent and sage judge--in most matters a cool fountain of deliberate justice--whose bias towards purity and a high ideal of man's conduct towards woman was so little under control that in cases, and especially criminal cases relating to these affairs, it was very difficult for him to conduct the case with justice to the accused. his bias against the sin over-rode his judgment of the crime. the same bias is more often found in juries. i remember a case in which my father, serjeant parry, defended a man named smethurst, charged with the murder of his wife. he was admittedly guilty of bigamy, and so incensed were the jury with his misconduct that their bias carried them right by the mark of the medical testimony and landed them in the ditch of an unjust verdict of murder. the case was taken up by john bright, one whose bias against all evil was as strong as any man's. the criminal was ultimately punished only for the crime he had committed. no one will contend that a bias against immorality is not a good bias and a good asset in the character of a judge and a man. but the best bias in the world will not aid you in attaining "the mark" unless it is directed by body and brain working together in harmony. and if it be asked if there are judges on the bench who are biassed towards or against capital or labour, railway companies, motor-buses, piano organs, scotch drapers, moneylenders or other products of modern life, i must answer in all honesty that this is very probably the case. a fact that seems to be lost sight of in this insistence on the immaculate judge is that, after all, he is like other human beings, a forked radish with a fantastically carved head quaintly decorated by a horse-hair wig generously paid for by himself out of his slender salary. he is just as much the product of the age as one of yourselves. he has toddled about in the same nursery, learned in the same school, played at the same university and lived in the same society as the rest of the middle classes. why should you expect in him a super-instinct towards futurist sociology? in the old days when everyone believed in witchcraft the judges believed in witchcraft. chief justice hale solemnly laid it down as law that there must be such things as witches since there were laws made against witches, and it was not conceivable that laws should be made against that which did not exist. it was not, indeed, until the time of george ii. that it ceased to be an offence to endeavour to raise the devil by magic words and oblige him to execute your commands. nowadays even the devil himself is in danger of disestablishment, though my conservative views would lead me to maintain that he is still entitled to judicial notice, and i am inclined to the opinion that he is not yet surplusage in an indictment for perjury. in every age your judge will be tinged with the prejudices of his time and his class, and i cannot see how you can expect to grow middle-class judges in hot-beds of middle-class prejudices without the natural formation of a certain amount of middle-class bias in the thickness of their middle-class wood. nor do i think among englishmen anyone resents such bias as your judges display in their everyday life. mr. justice grantham, like "a. l.," was undoubtedly a man of strong conservative bias and showed it openly enough upon the bench, but he was adored on a working-class circuit, and no man was better beloved by all who practised or appeared before him, and no judge strove more earnestly to do justice. the fact is, bias is recognised among englishmen as one of the sporting attributes of man and is as necessary to the instruments with which we play the game of life as to the "woods" in our old-world game upon the green. if there is any bias on the bench that is popularly and justly disliked it is a bias towards formalism and technicalities. our law of old got a bad name for that, and in quiet places our reputation still sticks to us. there are still men and women in the english country-side who think there is some sort of disgrace attached to a law court. in the quiet county courts of kent and sussex a defendant often complains in an aggrieved tone at being brought to a "place of this kind." it argues to his mind a want of delicacy in the plaintiff, and he states his case without the least hope that it will be decided on the merits. i remember an amusing expression of this feeling. a defendant, a cheery, round, pippin-faced jobmaster with a treble voice was sued by a farmer for keep of his horses in the farmers' field for several week-ends. "well, i'll tell you about it," he piped diffidently in answer to my request for information, "for i might as well now i'm here. it was this way. i met sandy in crown lane. i always call him sandy--you must excuse me if i'm wrong, i've never been in a place like this before--and sandy says to me, 'jim, why don't you bring your 'orses down to my field for sunday like you used to do last year?' well, i brought my 'orses down on sunday and i did that for some two or three months and then i took them away, and i meets sandy and he says, 'jim, why have you taken your 'orses away?' and i says, 'because there ain't no food on your field for my 'orses.' he says to me, 'there's more food on my field than your 'orses is used to.' i says, 'sandy, you know there's no feed in your field for my 'orses.' he says to me, 'if there ain't no feed in my field for your 'orses there's plenty of recreation for them.' 'recreation?' i says; 'my 'orses don't want no recreation, they gets recreation in the bus through the week.' with that sandy went his way and we never exchanged another word for three year, and now he brings me to this 'ere place for sixteen shillings and i've never been in a place like this before." i explained to the defendant that the county court was really a place intended for an affair of this nature and thoroughly equipped to see it through, but he was not satisfied. "what right has he to bring me here?" he complained. "i never promised to pay him anything." "was there no agreement between you?" i asked. "well, we did agree about one thing." "and what was that?" i asked hopefully. "we agreed that if we couldn't settle what i ought to pay," he replied, eyeing me with doubt and disapprobation, "that we should leave it to a respectable man." now what he really wanted was a judge full of bucolic bias and well acquainted with vaccine and equine learning. it was only i fancy in a veterinary sense that he considered that i was not respectable. and nowadays when we open the courts to new applicants, and turn over great schemes of workmen's compensation to judges to deal with, we want judges to work them who are in touch with the needs and lives of the working class, not necessarily folk who want to exalt the poor on to unreal pedestals and clothe them with impossible virtues, but people who know how near their faults and virtues are to those of the rest of mankind. and when we find american judges deciding that no system of workmen's compensation is to be allowed to become law, and when we note that the most learned judges of our own appeal courts differ constantly as to the meaning of the words of our own scheme, thereby causing delay, confusion and expense, it raises a question in one's mind as to whether some far less exalted court of appeal--say, three county court judges who have to try these cases face to face with the men and women who are interested in their decision--would not better meet the wants of the community in carrying out the scheme and come nearer to the ideal of "the respectable man." a bishop has once been a curate, but a lord justice of appeal has never been a county court judge. the workmen's compensation act is a practical business machine of a complicated character, and it is scarcely a sensible thing that the men who have to keep it going should work under the theoretical direction of men who have never seen it working. and there is another reason why the appeals in these cases should be removed from the court of appeal, and that is a very practical one--the court is over-crowded and has no time to try them. even now as i write there are cases, many of them perhaps merely questions of the payment of a few shillings a week, which have been waiting for many months to be reached. from the point of view of everyone concerned, except the lawyer, there is no health in this litigation. in so far as the administration of the workmen's compensation act has been a success it has been because insurance companies and employers and trade unions and workmen have either kept out of court altogether or, when they have got there, have assisted the registrars and judges of the county court to work the thing on business lines and have resisted in a large measure the temptation in the uncertainty of the decisions to speculative litigation. there is still enough english common-sense left among us to muddle through most things, but the workmen's compensation act, as interpreted in the court of appeal, has tried it fairly high. chapter vi bankruptcy "in a lofty room, ill lighted and worse ventilated, situate in portugal street, lincoln's inn fields, there sit nearly the whole year round, one, two, three or four gentlemen in wigs, as the case may be, with little writing desks before them, constructed after the fashion of those used by the judges of the land, barring the french polish. there is a box of barristers on their right hand; there is an enclosure of insolvent debtors on their left; and there is an inclined plane of most especially dirty faces in their front. these gentlemen are the commissioners of the insolvent court, and the place in which they sit is the insolvent court itself." charles dickens: "pickwick." chap. xliii. a bankrupt is not a person who breaks the bank, as is popularly supposed. on the contrary, he is, or ought to be, by his derivation a person whose bank is broken by others. a learned professor tells me that the florentines of old had some sort of ceremony in which they marched to their insolvent neighbour's office and broke up his bank, or bench, or money table to show the world that he was no longer commercially sound. until recently in english law bankruptcy was merely a trader's remedy designed to protect an unfortunate business man from life-long imprisonment for debt resulting from unfortunate business ventures. latterly the privilege of bankruptcy has been extended to every citizen that has a debt of fifty pounds and ten pounds to pay the fees necessary to filing his petition. but, in order to become insolvent, it is a condition precedent that at some time or another one should have been solvent. and one difficulty about applying any form of bankruptcy laws to the poor is that they are too often born insolvent, live insolvent, and die insolvent. there must be many fellow citizens in this country of ours who never knew what it was for twelve months of their life to have a living wage and be out of debt. as long as we have imprisonment for debt credit of some kind and on some terms ruinous or otherwise is always obtainable. at the present, bankruptcy is almost regarded as a sign of grace, a condition of honourable martyrdom into which the careless and good-natured ones of the world find themselves after a short struggle in the slough of solvency. to the rich it is a very present help in time of trouble, but the poor, never having been sufficiently solvent, can never make use of its aid. when the worker has a living wage guaranteed him by the state it will be necessary to make him a new bankruptcy law so that the living wage cannot be attached and converted to the use of the shylocks of this world. the law protects the infant and the idiot from the results of their own foolishness, and we shall find it advisable in the future to extend similar protection to the grown-up idiots and infants who are all too prevalent in the world. antonio was a normal business man, but he was no match for shylock, and, though no lawyer can approve of the way in which the courts treated shylock, the real lesson of the story is that laws are necessary to protect antonio, the fool, from shylock, the knave. in order, then, that the full blessings of bankruptcy may be made available to the poor, we must certainly tackle the problem of the living wage, which to my mind is the most urgent social question of our time. so many things seem to hang upon it. rent, taxation, education, physical and moral improvement, eugenics, all the social discussions of the time, land you back on the question of the living wage. sometimes, i think, we are on the eve of a new era when every capable honest citizen will have the same right to a living wage that he now has to free board and lodging and stone breaking in the workhouse. i would rather have a legal right to a living wage than a vote, unless i was clear that i could use the latter to obtain the former and many better things to boot. as a matter of dull, dry, literary history all the prophets and singers and poets, from king david, isaiah and jeremiah down to carlyle, kingsley, ruskin, dickens and tom hood, have said or sung the praises of the living wage. there are many who regard jeremiah as a kind of gloomy dean, but for my part i find him most encouraging. when he says: "woe unto him that buildeth his house by unrighteousness and his chambers by wrong; that useth his neighbour's service without wages and giveth him not for his work," i think that he is absolutely right on the spot. i cannot believe that it was his view that woe would providentially descend upon the man who paid sweating wages and that it would come in the shape of lions and bears or lightning and earthquakes; on the contrary, i read it, that, in jeremiah's view, it was the duty of citizens to see that their fellows did not behave like this. the prophet intended to tell us that our first duty was to persuade our fellow citizens employing labour to give their workmen a living wage, but if we could not achieve this by reasoning and exhorting them, then it was our duty to give such anti-social churls statutory woe, just as we mete out statutory woe to the naughty ones who get drunk and beat their wives, and, indeed, for the same social reasons. david and all his biblical backers were as eager as mr. philip snowden and his socialist friends to promote the living wage, and, as they put it, to "deliver the poor from him that is too strong for him." that, in a phrase, is the modern problem of the living wage. the trust, the combine, the limited company, the corporation or government office are bound in the nature of things to become the spoilers of the poor and needy unless there is some power delegated by the state to some judicial authority to "deliver the poor from him that is too strong for him." but it is not sufficient to cite poetry and psalms and the "song of the shirt"--for then your thomas gradgrind comes along--a man of realities, sir, a man of facts and calculations, a man who proceeds upon the principle that two and two are four and nothing over, and who is not going to be talked into allowing for anything over--thomas gradgrind shakes his square finger at you and says: "how are you going to do it?" and i agree that gradgrind is deserving an answer. i do not say we must wait until we convince him, for gradgrinds are obstinate, stubborn fellows, but we must satisfy the majority that we have a fair answer to his objections and a practical programme to propose. the problem cannot be shirked for ever. even in the prophet carlyle's day it was a matter in regard to which "if something be not done something will do itself one day and in a fashion that will please nobody." and shortly the way in which it will come about is by voluntary conciliation, the erection of joint boards of employers and workmen with a right of appeal to a business legal tribunal--something akin to the railway commission--which shall have power to make and enforce a decree to the worker of at least so much of his fair share of an industry as shall amount to a living wage. i can see nothing revolutionary in this proposal. it really only follows out the trend of modern legislation. if a man has a smoking chimney, or pollutes a river, or goes about in public with an infectious disease, we fine or imprison him for his anti-social misconduct. surely a man who pursues an industry that does not make a living wage for the workers in it is equally an enemy of the people, to be dealt with as such by the law! as mr. justice gordon laid it down in the australian labour courts: "if any particular industry cannot keep going and pay its workpeople a living wage it must be shut up." some day that will be the law of england. no one can deny the common sense of it. a very encouraging sign of the times is that both sides are discovering the uselessness of strikes. in mr. snowden's frank words, "a strike never did much substantial gain to the strikers." it is not only that the strike or lock-out is a crime against helpless women and children, that it wastes the substance and savings of employers and employed and embitters their relations for a generation--all that we knew before; the new and comforting message is that the strike does not "get there," it does not succeed, and therefore, as mr. snowden says, "just as war between nations cannot be defended either ethically or economically, so labour disputes are indefensible." and there are other indications that conciliation and agreement in labour matters are to have a fair trial. already in the railway world an interesting experiment has been made. i have seen enough of it in the working to know that it is not such a spavined animal as some of our political jockeys would have us believe. when the railway conciliation boards were set up the employers and workmen, where it was possible, agreed upon an independent chairman to sit with them in case there was a deadlock. several boards of different companies invited me to undertake this honourable position. i need hardly say that i fancied myself not a little at receiving such flattering invitations, and meeting a friend, who was an eminent railway solicitor, i told him the news--not, i suspect, without a note of pardonable triumph in the phrasing. "what!" he cried; "do you mean to say that the companies and the men have agreed upon you as chairman?" "that is so," i replied, with dignity, being a little hurt at his surprise and astonishment. "well, i'm----. however you'll never have anything to do," he added with a grunt of satisfaction. "and why not?" i asked. "because," he replied, with great deliberation, "if they could agree about you they could agree about anything." i thanked him for the compliment, but, analysing the saying since, i am not so sure that the commendation i accepted was really proffered to me. be that as it may, it has turned out to be true. on the few occasions on which my services were required, i have found that things were capable of adjustment and settlement owing to the excellent good feeling on each side and the real endeavour made by everyone to try and understand the other's point of view. this is where the independent chairman is of real service. in explaining to his virgin mind the difficulties of the case, every point in it has to be discussed and explained anew, and in this way the weaker positions of the argument are made clearer to those who are defending them. thus it becomes easier to give way about some matter of detail, and concession breeds concession. without making too much of my own small experience, it bears out my theoretical expectation, and i am satisfied that a conciliatory court for trade disputes is a live business proposition, calculated to save employers much unnecessary woe, and that if jeremiah had thought of it, he would have proposed to set one up as a practical step towards the living wage. until, then, we have established a living wage for the worker, the question of his bankruptcy is in a large measure academic. at present bankruptcy, like divorce, is rightly regarded as a luxury for the well-to-do. i know that to some minds the word "bankruptcy" connotes poverty, but if you look into the facts and history of the matter, you will find that, though bankruptcy may on occasion lead to poverty, a poor man never does, or can, become a bankrupt. people fail to the tune of five or six million pounds a year, but when you analyse the list of the insolvent you will not find many poor folk among them. there are lords and gentlemen, solicitors and stockbrokers, merchants and manufacturers, builders and farmers, and butchers, bakers, and candlestick makers. but the nearest you will find to poor people are lodging-house keepers and coffee-house and fried fish shop proprietors. these are precarious trades, and the working man, being a good sportsman, likes to have a gamble in them with his savings. in this way he joins the aristocracy, and becomes an eligible bankrupt. but the labourer and artisan, the real working men, have no more chance of bankruptcy than they have of election to the athenæum or the carlton. bankruptcy is a legal status jealously guarded by the caste to which it belongs. the poor man reads in the paper of builders and merchants failing for their thousands, of well-paid accountants carefully investigating the history of their financial fall; he puts his head into the registrar's court and hears an amiable official receiver sympathetically tracing the career of the well-groomed bankrupt in front of him; he sees the judge present the unhappy fellow with a clean slate, from which all his debts are wiped away, and hears him announce to the unfortunate insolvent the date upon which the law will allow him to start becoming insolvent again. and the working man thinks to himself of the twenty or thirty pounds that he owes, and how pleasant it would be if an accountant would add it up and a judge tell him that he need not worry any more about it; but when he begins to inquire further into the subject he finds that bankruptcy is one of the good things of this world that he cannot afford. bankruptcy, successful bankruptcy, is not so easy of achievement as you might think. it is not everyone who knows how to become a bankrupt. there are a lot of big, expensive law books written on this subject by clever fellows who spend their lives soothing the bankrupt's last hours and winding him up according to law and order, with costs out of the estate, but you need not study these to learn how to become a bankrupt. most bankrupts are pig-headed fellows, and achieve bankruptcy in their own foolish amateur way. they read the books about it afterwards. to begin with, you certainly want money, or at least an overdraft and plenty of credit. intending bankrupts generally wear very good clothes; especially are they particular about the shine of their silk hat. bankers and intelligent business men have, in all ages, given credit to top hats, white waistcoats, and gold watch chains. the poor man has none of these, and therefore cannot obtain that overdraft which is one of the first essentials of bankruptcy. the bankrupt has a curious affection for jewellery. he buys large quantities of this commodity, and sells it again at a loss to stave off the evil day and add to his deficiency. i read in the board of trade reports of a failure due to gambling and extravagance, in which the debtor purchased jewellery for £ , and sold it the same day for £ , . if he had been a poor man i think maybe the police would have tried to find a law to give him a rest cure for a few months in one of his majesty's gaols, but he failed for over £ , , and the probable value of his assets was £ . perhaps he was a bit of an aristocrat. anyhow the police left him alone. i cannot even tell you his name, for the kind inspector-general in bankruptcy, fearful of causing pain to the sorrowing, never tells you the names and addresses of the people whose history he writes. he speaks of him as "no. of ." the poor fellow had no occupation, his cruel father only allowed him a miserable thousand a year, so what could no. do but run into debt? the wonder is that he failed for so little as £ , . no. of was not much of a record, but he will do as another example. he, too, had no occupation except qualifying for a bankrupt and ultimately failed for £ , with assets _nil_. he started his wild career at the age of nineteen with expectations of a fortune when he got to the age of twenty-five. with that charming simplicity and cunning, characteristic of the whelps of the vulgar rich, he proceeded to moneylenders, and at the date of the receiving order had created charges exceeding £ , on his reversion of such complexity that every mortgagee disputed the right of every prior encumbrancer. this would not matter so much, as all these victims were doubtless moneylenders and a lot of the money would go to estimable lawyers to smooth out the wrinkled parchment muddle, but then at the back of all those were the unsecured creditors, poor tradesmen and others. they were to get nothing. no. of was an even smaller fellow. this debtor was educated at oxford and, on leaving the university in , he was in debt to the extent of £ , . i have a passion for statistics, and i should like to see a balance sheet showing on one side the expenses of the four thousand oxford undergraduates during three years of residence, and on the other side the earnings of the same four thousand undergraduates for a similar period in, say, fifteen or twenty years afterwards. i fear it would not be much of an advertisement for oxford. no. 's father paid up his creditors to the extent at least of fifteen shillings in the pound, and gave him a fresh start. he was in trouble again in , through betting and extravagance, and failed for £ , --assets £ , . the french have an excellent system of declaring these youngsters to be prodigals and putting them under a committee as we do lunatics with property, and no doubt in money matters they are akin to the insane, and are really to be pitied and cared for. but to the poor it must be strange to see debt and the disaster of debt causing such different results in law to different classes of people, and it must be hard for them to understand why they, too, are not fit subjects for the blessings of bankruptcy rather than gaol. and what am i to say to my friend joseph the signalman, at twenty-nine shillings a week, when he shows me some of these spicy stories of the inspector-general's report cut out of the local paper. "what has it all got to do with you, joseph?" "well," he says, "i've been thinking why should not i do a bit of a failure like no. of ? i can buy a gramophone and a watch, and a few lucky wedding rings and a family bible, and a plush drawing-room suite on the instalment system, and i can borrow a pound or two on a promissory note. of course betting and beer cannot be done on the nod in my class of life, but one can owe a bit of rent, and altogether i see my way to do a failure up to, say, thirty pounds. why shouldn't i go bankrupt?" "well, the answer is very simple," i have to tell him. "the rules of the game are made by the rich for the rich, and not for you, joseph, at all. oh, dear, no! in the first place you must have a debt of fifty pounds." "well," replies joseph, "i think i could bring it as high as that if i tried." "and next you must have a creditor to make you bankrupt, and unless he thinks there is some stuffing in you or wool on your back a creditor is not going to waste his time and money making the likes of you bankrupt." "but," says my hopeful friend joseph, "what is the meaning of a chap filing his own petition? i've often read of that. why shouldn't i file my petition?" "my dear, simple fellow, you surely do not think the clever ones of the earth who look after your interests have not thought all that out? you take your petition to the bankruptcy court and see what happens. you will find the usual janitor at the door with his open palm. of course you are expected to pay a fee--you have learned enough about english courts to know that you do not get 'owt for nowt' in any of them. but in the bankruptcy court, my young friend, they foresaw you coming along and they have put the figure too high for you. ten pounds, money down! that's the price. if you want to set all the pretty little figures working, the official receiver smiling, the registrar writing it all down, and the judge nodding on the bench, and the board of trade publishing statistics about you--ten pounds into the slot, my young friend, and the figures will work. "but you have not got ten pounds, joseph, and you could not raise the sum if you tried, so you will have to go back to work and pay twenty shillings in the pound somehow. and don't go and sell your gramophone and drawing-room suite, for they are on the hire system, and that would put you in the dock, where i hope you may never be. no. bought his £ , worth of jewels out and out, or said he did, and it was a paris jeweller, anyhow, and i believe he was one of the 'nuts' and not your class at all, joseph, but you may take it from me that you must not expect to be treated as he was. have i said enough, my dear friend? are you quite satisfied? bankruptcy, i can assure you, is not for joseph. oh, dear, no!" it is only fair to the law and to the memory of mr. chamberlain, who made the law, to remember that when he introduced the bankruptcy act of he invented a system of small bankruptcies called administration orders, whereby poor folk whose debts do not amount to fifty pounds may make a composition with their creditors. let me set down in his own words exactly what he intended and tried to do. i quote from his speech on the second reading of the bill: "what he now desired to call attention to was the clause which followed and which dealt with the case of debtors who owed less than fifty pounds. that was the class of debtors who filled our county courts with plaints and added very considerably to the number of the occupants of our gaols. it had always been felt to be a great hardship that while a large debtor could with ease relieve himself of all his liabilities he or his trustees might be prosecuting a poor man for thirty or forty shillings, and the latter might be sent to prison without having any means provided for him to make a composition with his creditors, and when, after satisfying the debt, he came out of gaol he was still liable in full to all his other creditors." * * * * * "but the more important provision which he had made for dealing with this subject was that under which a county court judge might in future make an order for the payment by a debtor who owed less than fifty pounds by instalments or otherwise of all or any part of his debts. a debtor who was brought up on a judgment summons or a county court plaint might state that he was indebted to other persons, might give in a schedule of his debts and propose an arrangement for discharging them, and, if the court thought it reasonable, it might at once confirm it, so that a small debtor would thus be in exactly the same position as a large debtor who had succeeded in making a composition with his creditors or in arranging for a scheme of liquidation. although he had not abolished in all cases imprisonment for debt, yet, if these provisions became law, it could no longer be said that any inequality existed as between rich and poor. the resort to imprisonment to secure payment would be much easier, and a large discretion would be vested on the judges to arrange for the relief to the small debtor by a reasonable composition." i have set this out at length because it is enormously encouraging to know that thirty years ago mr. chamberlain's ideal was to destroy the county court imprisonment for debt and to give the working man who fell into debt a bankruptcy system similar to that of the rich. why did it fail? well, it has not been wholly a failure, but it certainly has not fulfilled all its author's generous hopes. in the first place the fifty-pound limit is too small, another reason of its non-success is that it is a voluntary system of some complication in competition with the simple, brutal method of the judgment summons and imprisonment for debt, but probably its unpopularity is chiefly due to the fact that the treasury has always deliberately crabbed it by imposing harsh and unreasonable fees. no system of this kind will be successful without compulsion and some clerk of the court in the position of an official receiver to advise the poor how to go about the matter and to see that the order made is carried out. such a system is in vogue in some courts and has proved a success in mitigating imprisonment for debt and holding out a helping hand to those who were drifting into insolvency. but the system as it stands depends too much on the initiative of the county court judge or the registrar. thus we find on a working-class circuit like oldham, rochdale, etc., there will be over six hundred orders made, whereas in whitechapel only two orders are made in the same year. systems favourable to the working classes flourish more vigorously in the north than in the south. you must not suppose the working man is allowed to cast off his debts in the wholesale way in which the thorough-bred, blue-blooded bankrupt does. not a bit of it. the order made against him is that he shall pay his debts to the extent of so many shillings in the pound at so many shillings a month. if he does not carry out the order there is prison for him for every instalment he fails to pay if the judge so orders, or at the best his order is rescinded and all his creditors are down on him again as before. but the main drawback to the business is the extortionate fees charged by the treasury. here is a poor devil with twenty-five shillings and a wife and family and, let us say, thirty pounds of debt, and the judge gives him an administration order to pay ten shillings in the pound at five shillings a month. the treasury are at once down on him. their fees are always calculated, not on the dividend paid, but on the total amount of the debts, and they insist in every case on two shillings in the pound. thus, in the case of the man with thirty pounds of debt, the treasury want three pounds money down before the creditors get anything. in the treasury took no less than £ , in these fees. in this matter we cannot acquit the law of the offence of grinding the poor. imagine a wealthy country like this squeezing the insolvent poor out of their weekly pittances instead of helping them to pay their debts. i call it a wicked policy for the state to throw impediments in the way of a working-class man who is struggling out of the back-waters of debt into the fairway of solvency. do not let us shut our eyes to what it means, for the treasury is only our servant and ought to be doing our will, and the responsibility is yours and mine. for we know that every penny of that £ , comes out of the mouths of hungry women and children or, at the best, robs them of so many boots and so much clothing. what fees do the treasury receive from no. of and his like? two shillings in the pound on the rich man's £ , of debt might enable the chancellor to treat the poor more leniently. but the rich man pays his entrance fee of ten pounds and is a life member of the bankruptcy club. the treasury never thinks of touching him for a subscription of two shillings in the pound on the amount of his debts. some day there will come along a chancellor of the exchequer who will be a good samaritan, and the treasury will cease to strip the poor debtor of his raiment to the tune of £ , a year. of course it is very easy to blame a public department and throw ugly words at the lords thereof. one gets into a bad habit of blaming those in high places for the inequalities of things. i wonder if i were chancellor whether i should get rid of that shameful tax on the poorest of the poor. perhaps not. after all, the good samaritan was speculating with his own oil and investing his own twopence. the oil and the twopence of the exchequer belong to the public and must be dealt with according to the rules of statecraft. and there may be some grave national danger beyond my humble ken that makes it necessary for england to dirty her hands with that £ , . chapter vii divorce "we have thought to tie the nuptial knot of our marriages more fast and firm by having taken away all means of dissolving it; but the knot of the will and affection is so much the more slackened and made loose, by how much that of constraint is drawn closer; and on the contrary, that which kept the marriages at rome so long in honour and inviolate, was the liberty every one who so desired had to break them; they kept their wives the better because they might part with them if they would; and in the full liberty of divorce, five hundred years and more passed away before anyone made use on't." michel de montaigne: "essays." translated by charles cotton. book ii., chap. xv. nearly four hundred years ago thomas cranmer, archbishop of canterbury, was burned at the stake over against balliol college, oxford. you remember how a few days before, in a moment of weakness, he had signed a recantation, and how when the fire was kindled and the flames licked up the faggots they revived the spirit of the martyr within him, and he thrust his right hand into the flames, crying out: "this was the hand that wrote it; therefore it shall first suffer punishment." but if that hand had offended in matters spiritual, in practical matters it had done good work for the state. cranmer's "reformatio legum ecclesiasticarum" contains some of the best sense about divorce law reform that i have ever read. its proposals are moderate, sensible and in harmony with the religious ideas of his day, which seem to have been broader and more rational than those of to-day. had edward vi. lived a little longer cranmer's treatise would have been enacted as the statute law of the country. it is pitiful to think of the four hundred years of misery and injustice under which the citizens of this country have suffered in matters relating to divorce owing to a change of government in . the scots did better out of the reformation and have had a more or less satisfactory divorce law in working order since that date. shortly, the propositions that cranmer proposed were these, and they will be found, i think, to run parallel with the views of the common-sense citizen of to-day. he laid down the command that no husband or wife may abandon the other of his or her own free will and, in order that this might be a practical ideal, he set down the causes for which the courts were to grant relief. divorce was allowed for adultery, unless both parties were guilty; desertion; the unduly protracted absence of the husband; or the deadly hostility of the parties. prolonged ill-treatment of the wife gave her a right to divorce, but even here, as long as there was any hope of improvement, the duty of the ecclesiastical judge was to reason with the husband and make him give bail for good behaviour. only in the last resort must "she on her part be helped by the remedy of divorce." great stress is laid throughout the treatise on the desirability of reconciliation. "since in matrimony there is the closest possible union and the highest degree of love that can be imagined, we earnestly desire that the innocent party should forgive the guilty and take him back again should there seem to be any reasonable hope of a better way of life." practical effect was to be given to this principle by the court before proceeding to divorce. cranmer was entirely at one with the more advanced thought of to-day in his detestation of "separation orders." separation without divorce was, he realised, an overture to immorality. "it was formerly customary," he writes, "in the case of certain crimes to deprive married people of the right of association at _bed and board_ though in all other respects their marriage tie remained intact; and since this practice is contrary to holy scripture, involves the greatest confusion, and has introduced an accumulation of evils into matrimony, it is our will that the whole thing be by our authority abolished." what he would have said about our wholesale police court method of separating married people without giving them any rights to form new ties one does not like to imagine. one cannot turn from the short and pithy "reformatio legum ecclesiasticarum" of the sixteenth century to the colossal unwieldy blue books of the twentieth century with any sense of satisfaction. perhaps the most interesting thing to be got out of the latter is a study in contrasts between the body, flavour, and bouquet of archbishops of different vintages. thomas cranmer's services to the state being no longer available after the balliol fire, the choice of his majesty edward vii., when he issued his royal warrant in for the divorce commission, fell on "the most reverend father in god our right trusty and entirely beloved counsellor cosmo gordon, archbishop of york, primate of england and metropolitan." one would have hoped that after four hundred years further consideration of cranmer's views on divorce--the latter-day representative of cranmer's church would have been able to give king edward vii. at least as good counsel as his predecessor gave to edward vi. no doubt the minority report that he ultimately wrote fairly represents the narrower views of modern ecclesiastics, but it is a sad thing to see the leader of a great church absolutely out of touch with the practical reforms that those who know the lives of the poor admit to be necessary. i should regret if, in a moment of spiritual insight, it should be made clear to our good archbishop that in signing the minority report his right hand had been guilty of offence, or that he should think fit to discipline himself after cranmer's example; but if he had thrust his minority report into the fire, church and state might have sung a joyful psalm of conflagration and congratulation. alas! edward vi. passed away without reform, and our brave king edward vii. changed his world whilst the commissioners were still commissioning, and maybe it will be edward viii.'s turn some four hundred years hence to sign the new divorce law. let nothing be done in a hurry. from cranmer's day until no divorce law was passed. in the meantime, if you were a peer with a naughty wife, you got an act of parliament passed to divorce her. it was an expensive proceeding and, incidentally, of doubtful legality. but the eugenics of nobility and the purity of breed in the peerage made some such machinery necessary, and so you had "an act for lord roos to marry again," and others similarly entitled. only the very rich at the rate of two or three a year could avail themselves of this procedure, and, of course, the very poor had not a look in at all. it was a judge who awakened the world to the iniquity of it all, and he did it by a jest. there are some funny things said in the high court to-day, but they do not seem to be designed to push the world along as this witty speech did. it was mr. justice maule--a sly dog, the hero of many a good circuit story--that one about the threatening letters, for instance--it was maule j. in a bigamy case, _regina_ v. _thomas hall_, tried at warwick in , who woke up the country to the fact that there was a divorce problem, and that it wanted solving. hall was a labouring man convicted of bigamy and called up for sentence. maule, in passing sentence, said that it did appear that he had been hardly used. "i have indeed, my lord," called out poor hall, "it is very hard." "hold your tongue, hall," quoth the judge, "you must not interrupt me. what i say is the law of the land which you in common with everyone else are bound to obey. no doubt it is very hard for you to have been so used and not to be able to have another wife to live with you when maria had gone away to live with another man, having first robbed you; but such is the law. the law in fact is the same to you as it is to the rich man; it is the same to the low and poor as it is to the mighty and rich and through it you alone can hope to obtain effectual and sufficient relief, and what the rich man would have done you should have done also, you should have followed the same course." "but i had no money, my lord," exclaimed hall. "hold your tongue," rejoined the judge, "you should not interrupt me, especially when i am only speaking to inform you as to what you should have done and for your good. yes, hall, you should have brought an action and obtained damages, which probably the other side would not have been able to pay, in which case you would have had to pay your own costs perhaps a hundred or a hundred and fifty pounds." "oh, lord!" ejaculated the prisoner. "don't interrupt me, hall," said maule, "but attend. but even then you must not have married again. no, you should have gone to the ecclesiastical court and then to the house of lords, where, having proved that all these preliminary matters had been complied with, you would then have been able to marry again! it is very true, hall, you might say, 'where was all the money to come from to pay for all this?' and certainly that was a serious question as the expenses might amount to five or six hundred pounds while you had not as many pence." "as i hope to be saved, i have not a penny--i am only a poor man." "well, don't interrupt me; that may be so, but that will not exempt you from paying the penalty for the felony you have undoubtedly committed. i should have been disposed to have treated the matter more lightly if you had told maria the real state of the case and said, 'i'll marry you if you choose to take your chance and risk it,' but this you have not done." and so the judge gave hall three months or, as some say, four. but that was because he had not told maria all about it. it was for not playing cricket, not for breaking the law. and where the parties commit bigamy out of sheer respectability and a desire to placate mrs. grundy and have some marriage lines in a teapot on the mantelpiece to show the lady who lives next door, the judges, providing there is no deception, wisely treat the offence as something far less deserving of imprisonment than non-payment of rates. why the police prosecute in these cases the chief constable only knows. and the scorn and irony that maule poured on the law of divorce roused the public conscience, and there was a royal commission in and a divorce act in , and the result was the divorce court as we know it, an excellent tribunal for the matrimonial troubles of well-to-do people, but of no use to poor hall and maria. for maule's words slightly paraphrased might be as truly spoken to the bigamist of to-day as they were to poor hall. and four years ago we had another royal commission, and hundreds of witnesses were examined, and papers and reports handed in, and many days spent in collating and considering the same, and much stationery consumed. it was a shabby thing to the poor to institute this long-winded inquiry. there was nothing to inquire into. the mountain has finished groaning, and the expensive and ridiculous mouse has made his appearance--and all it comes to is that what good old thomas cranmer said ought to be done in the majority think might be experimented on in ; only--the archbishop of to-day is no longer on the side of reform. that, i suppose, shows us very fairly the pace at which the world moves forward and the church moves backward. in a great and necessary social reform, such as this, the church occupies the position of the old-fashioned horse lorry strolling down the middle of the road amiably blocking the modern traffic of the city. it is all very pleasant and reassuring to those nervous folk who fear we are rushing like gadarene pigs into a sea of legalised vice and immorality, but to visionaries and dreamers like myself who would like, as the children say, "to see the wheels go round" in their lifetime, it has its mournful side. there are two ways in which those who are satisfied that the world is the best of all possible worlds meet proposals for reform. if they are backed up by popular clamour and agitation they say with some show of reason that it would never do to give way to threats of violence. if, on the other hand, the campaign for reform is conducted by mannerly argument it is commonly said that there is no demand for a change. comfortable clerical persons are never tired of telling you that there is really no demand from the poorer classes for any reform of the divorce laws. true, people do not go out in the streets and break the windows of cabinet ministers or make themselves politically disagreeable after the fashion of the middle classes who have grievances real or imaginary. but anyone whose advice is sought by the poor in their troubles knows that the demand for divorce exists if it were of any use uttering it aloud to our smug and respectable rulers. of course the demand or no demand is immaterial to anyone who has grasped the fact that it is a principle of elementary justice that the poor should have the same audience and remedies in all our courts as the rich. the real demand for divorce is to be found in the circumstances of the lives of the poor. i propose to set down a few typical cases drawn in every instance from public published records. jane married fred when twenty-two years of age. soon after the marriage he began to ill-treat her and would not work. jane's parents helped them in business. fred continued his ill ways and at length gave jane a beating. jane took out a summons, but would not face the court, and forgave fred. after five years of unhappy married life jane went back to her parents taking her two children, fred agreeing to pay her three shillings a week. at the end of nine months he ceased to send any money and disappeared. for seven years jane lived with her parents until they died. after their death she found it a great struggle to live and pay the rent. charles now comes on the scene, he takes lodgings and pays the rent. ultimately charles and jane live happily together and there are two children of the union. charles provides for fred's children as well as his own. charles and jane would like to marry for their own sake and for their children's. in so far as there is any sin or immorality in this story the promoters of it and the sharers in it are those who stand in the path of divorce reform. here is another typical case. george marries mary, their ages are eighteen and seventeen. soon after marriage mary--who comes of an immoral family--starts drinking and going about with other men. ultimately she deserts george and becomes pregnant by another man and is confined in hospital. the guardians proceed against george for the expenses of the confinement, but he is able to prove to their satisfaction that he is not the father of the child. mary then disappears to further infidelities and george goes back to live with his mother. later on anna appears on the scene and george and anna have now a comfortable home and healthy infant. "they think a deal of it and wish it could be legitimate." so, no doubt, do charles and jane and many other poor parents in like case. the law says that these people are entitled to have a divorce, only the law erects its court in a corner of london inaccessible to these poor provincials, and makes the costs and fees and services of its judges and officials and counsellors so expensive that there is no possibility of charles and george, and jane and anna, and their little infants having the blessings of legal and holy matrimony because they have not the cash to purchase the luxury which is not for the likes of them anyhow. and when it is suggested that divorce might be cheapened and made available for these poor citizens archbishops shake their heads, and legal bigwigs, with their eye on the fees and the costs, hold up their hands in amazement. divorce is a reasonable proposition for marmaduke and ermyntrude, of "the towers," loamshire, but for george and anna in back tank street, shuttleborough--not likely. there is no demand for it, says the minority report, and its worthy authors point out with cynical contempt for the working classes that they have got a system of separation orders which is really all they require. now if there is one thing which the evidence before the commission puts beyond doubt it is that the law in relation to separation orders induces, invites, and causes immorality in the poor. cranmer, you remember, knew all about that, and looked on separation without the right to remarry as an unclean thing. but since the sorrows of the poor in their marriage shipwrecks were so manifest, and the divorce court was closed to them, systems of magisterial separation orders, cheap permanent divorces, without the right to marry again, have become the order of the day. there are some six thousand of these decrees made annually. the evidence is overwhelming as to the evils that spring from these orders. as mrs. tennant reports, "i believe that separation orders, the general alternative offered to divorce, work badly in working-class houses, and on the whole make for an increase rather than a diminution of immorality. we have to consider housing conditions and economic circumstances which often do not make for clean or wholesome ways of life, and where the relief offered by separation is not only inadequate but positively mischievous." put in plainer terms by the witnesses, a labouring man, if he has to find a home for his children, has to find a woman to keep house for him; a woman of the same class has to pay a rent, which necessitates the taking in of a lodger. human nature being what it is, it seemed superfluous to appoint a royal commission of trusty and well-beloved ones to tell us what would happen. this is a system that the archbishop of york thinks "probably fulfils its purpose fairly well." of course, it all depends what its purpose may be. if it is its purpose to stand in the way of cheap divorce and the rights of the poor to have the same chance of rescue from a shipwrecked marriage that the rich possess, all is indeed well. but if the object of the law is to bring to those who are weary and in misery some hope of a new life and a new home where children can be born without shame and the parties can live in accordance with the wishes of themselves and their neighbours, then with all respect to the primate of england, the law is probably fulfilling its purpose very damnably. it is only fair, of course, to remember that the archbishop of york and his learned colleagues of the minority report never meet fred and jane and george and anna in real life, and can know no more about such folk at first hand, and have as little chance of understanding their point of view, as i have of studying and comprehending the sociological limitations of the higher priesthood. detestable as i hold these ecclesiastical errors to be in their practical bearing on the lives of the poor, i am hopeful that time and argument will overcome the ecclesiastical veto on reform. i am sure that even a bishop would be converted to healthier views of life if he could have a little home chat with george and anna. and if their pleading did not convince him, i have a belief that the sight of their babies might touch the heart which even in a bishop, we may suppose beats somewhere beneath the chimere and rochet or whatever the vestments are called in which his lordship disguises his human nature from the lower classes. many of our judges and other learned men see very clearly the enormous importance of divorce reform to the poor. mr. justice bargrave deane put the matter very straightly to the commission when he said, "the question of divorce is more a question for the poor than the rich. the rich have their homes and their comforts and their friends who are of a different position and who can by their own advice and conduct keep people straight." in so far as this implies that the standard of morality or etiquette of decent matrimonial conduct is stricter among the rich than the poor, i doubt its truth. the working classes have no leisure for flirtations and philandering. the behaviour of a fast set in a wealthy country house--which is generally more vulgar than really naughty--would probably scandalise the dwellers in a back street. but what the learned judge wished to emphasise was that the consequences of ill-conduct in a husband or wife are far more serious in the everyday life of the cottage than in that of the mansion. here he is undoubtedly right. what, for instance, can be more terrible than the effect of persistent drunkenness on the married life of the poor. alfred and anna have two children. the man earns thirty-two shillings and sixpence a week when in full work and is a thoroughly decent and respectable man. his wife is an inebriate. she pawns everything for drink and neglects her children. her husband obtains a separation order, but after three years anna promised reform, and alfred, like the good fellow he was, took her back. unfortunately in two months she was as bad as ever, and furniture, bedding, clothes, all the household goods disappear to the pawnshop. the children are reported upon by the school authorities. the parents are prosecuted for neglect, and on anna agreeing to go to an inebriates' home for twelve months the bench postpone sentence. when she comes out she is a wreck, suffering from alcoholic neuritis which is leading to paralysis. during her absence alfred has had to pay seven and six a week for her maintenance. he now allows her five shillings a week and she lives with her sister. he is on short time earning twenty-six shillings a week. the children are without mother, the home is without a woman's care and influence and his income is rendered insufficient to provide the necessaries of life. here is another picture--john married catharine in . there was one child. when the infant was nine months old catharine was forced to leave her husband on account of his drunken habits. the child went to its grandmother and catharine went to service for seven years. after that time she met charles, a widower, with one child. being a brave and sensible woman she went to live with him as his wife. they have two children of their own now, one is three years old and the other six months. they have a good home and are very happy, and would like to be married if the law allowed it. now all that religion has to tell us about these cases is that marriages are made in heaven and that heaven having once made these two utter messes of human affairs, it is impious for human hands and minds to try and mitigate the evil for which heaven is responsible. i wish those for whom these old-world blasphemies have merely a folklore interest would leave this so-called religion mumbling in its outer darkness and apply their practical minds to so reforming the law that the lives of alfred and anna and catharine and charles and their innocent babies, and hundreds of other good men and women and innocent children, might no longer have to live in this civilised country under any legal disability or under any social shadow of ignominy or shame. in practice these folk very often do marry again without the blessing of church or state, as in the last-cited case, and live useful and virtuous lives, bringing up happy children in good homes. the law should assist such citizens in the interest of the state, for the community want good homes and healthy children leading happy lives. the recommendation of the majority commission in this matter is a very conservative one. it is that habitual drunkenness found incurable after three years from a first order of separation should be a ground for divorce. this, coupled with divorce for cruelty or desertion for three years and upwards, would certainly cover some of the sadder cases that were brought to the notice of the commissioners. the right of the state to refuse divorce in the case of the insanity of a party to a marriage seems hardly arguable. here is one of the many sad stories. norah married a soldier twenty years ago. fourteen years ago he was taken to an asylum, where he still is, and norah applied for relief. she was offered scrubbing work at the workhouse from a.m. to p.m. at nine shillings a week and some bread, or two-and-six a week and six pounds of bread, with liberty to take in two lodgers. norah, to be with her children, chose the latter. john was one of the lodgers. he found his way to norah's heart by buying presents of boots and clothing for the children. and so norah and john became man and wife, save and in so far as the law refused them that status. as norah told a lady visitor, "i suppose you think it was wrong for me to drift into our present way of living, but it was such a struggle and he was so good to us. i have never been killed with wages, but we are as comfortable as we can be. i often wish we were free to marry because we do not like our children being illegitimate, and people look down on a woman so, if she lives as i am doing." in this matter it is cheering to know that the archbishop and his learned adherents in their minority report are prepared to make some concession. i state this with pleasure, remembering the wise words of that good old welsh parson, the rev. john hopkins, of rhoscolyn, who said, "indeed, judge parry, remember this, one must be charitable even to dissenters." _a fortiori_ one should be just even to archbishops, and it is hopeful that in the matter of insanity where one of the parties is either of unsound mind at the time of the marriage or in a state of incipient mental unsoundness which becomes definite after six months of marriage and the suit is commenced within a year of marriage the minority report timidly proposes that such a marriage might be annulled. what the difference in principle may be between the cases of a mad husband who has been married for six months and a madder husband who has been married for six years the learned ones do not inform us, but we may regard it as a sign of grace that there are some matrimonial miseries that seem to these hard-hearted pundits worthy of sympathy and relief. no protest seems to be made by the church against the go-as-you-please divorce methods of to-day among the upper classes, but if divorce by consent does not exist among the rich it shows great rectitude and self-denial on their part. one often reads of a case like the following one. mrs. a. is neglected by her husband, who leaves her. she asks him to return and he refuses. she files a petition for restitution of conjugal rights. the court makes a fourteen days' order on the undefended petition. i wonder if such an order has ever been obeyed or was ever intended to be obeyed. on receiving the order mr. a. writes that he is not coming back, but that he will be found staying at a certain hotel with another lady under the style of mr. and mrs. a. inquiries are made, and this proving true a divorce petition is filed. this again is undefended and the decree _nisi_ goes as of course. it is conceivable that such a procedure might be used by two intelligent persons who did not respect the laws of their country as a method of divorcing each other by consent, but i have no doubt that the well-to-do who constantly go through these forms are far too scrupulous in their observance of the letter and spirit of our divorce law to be guilty of anything that could be construed into collusion. i do not think that in this country, except among wild and fanatical folk and some of the fast set with whom we need not concern ourselves, there is any demand for divorce by mutual consent. but, even if this were enacted, it does not follow, as montaigne has told us, that it would be used. the idea that a more reasonable system of divorce will lead to a wholesale system of divorces is an absurd folly, a bogey used by ignorant but honest clericals to frighten good people who rather enjoy being scared to death. the fat boys of sociology love to make their victims' flesh creep, and when they speak of divorce reform constantly suggest that human nature tends to immorality in matrimonial affairs. as a matter of fact human beings naturally prefer marriage and married life where it is at all a successful institution to divorce and divorced life. this is wonderfully illustrated in belgium where, as m. henri mesnil, the french avocat, points out, divorce law "as provided for by the code napoléon has remained in force down to the present day: in spite of the long predominance of the catholic party dissolution of marriage by mutual consent is still possible in that country. i might say that although possible it is a very rare thing. i think only one case of divorce by mutual consent will be found amongst four hundred cases in belgium." here we have the results of a hundred years' experience of a european country not unlike our own. it bears out exactly what one would expect, and it is only by ignoring such evidence and referring to the laxity of state procedure in america, without reminding the reader that there is no evidence of any greater laxity in the state of morality there than elsewhere, that the archbishop of york and his friends can claim that the "preponderating voice of history and experience"--a charming phrase--is in favour of their minority report. the archbishop treats history as moses treated the rock. he strikes it with his archiepiscopal staff and there flows forth a gush of watery precedents to rejoice the hearts of the faithful. a poor pagan like myself can only approach the rock with a humble geological hammer and, knocking a few chips off it, report that it does not come of a water-bearing family. outside miraculous draughts of history there is nothing to be found in the past experience of social life that tells against a reform of our present divorce laws. but no reform in the law will be of the least use to the poor unless jurisdiction in divorce is given to the county court. the opposition to this is twofold. it comes from those who object to any reform at all and see that by keeping divorce costly you naturally limit its use, and, again, it comes with even greater force from those who are making their money out of the present system. very naturally the divorce court bar, having an excellent paying business all to themselves, do not want to share it round with other people. towards their trade union attitude of mind i have every sympathy. but when it is more than hinted that it would really be beyond the capacity of a county court judge to try those "very difficult considerations of cruelty, condonation and connivance," i prefer the alliteration of the phrase to the sense of it. there is really no mystery about divorce law. the issue is an absurdly simple one, of grave importance to the lives of the parties certainly, but to a lawyer with a business mind far easier to try than many of the issues that arise every day in bankruptcy, admiralty and commercial cases, and in arbitrations under the workmen's compensation act. the daily work of a county court judge is not less difficult than that of his high court brother. the complication of a case does not depend upon the amount at stake, and the county court judge has, if anything, to have a somewhat wider knowledge of law and a far greater knowledge of the lives of the poor than any other judicial person, since the legal subjects he deals in are more varied in character than those met with in other courts, and he naturally sees more of the daily life of the people. certainly the high court judges get better assistance from the bar, or rather, i should say, more assistance--or should it be assistance of greater length?--but the county court bar of to-day contains the pick of the younger men, and is really the nursery of the common law bar since it is only in the county courts that a catholic experience in civil advocacy can be obtained. i noted with some interest that in a recent batch of silks seven or eight had been before me, some of them several times within a few months of their taking silk. when there is a divorce case of any importance--in the same way as if it were a libel case of importance--great advocates with no special knowledge of the mysteries of divorce law are called in to lead the specialists. what is wanted is advocacy, not knowledge of divorce procedure, and the county courts have excellent advocates to-day. if there is one special branch of law where one would think expert knowledge is essential it is admiralty, yet important admiralty cases belong to county court districts where for aught anybody knows or cares the learned judge and the advocates may not know the difference between a bowsprit and a rudder. but the real reason why the county court should be chosen for this work in the interests of the poor is to my mind the real reason why the county court is popular with business men and the high court is not. in a properly managed county court a case is set down for a certain day and, except on rare occasions, it is tried on that day. as mr. dendy, the learned registrar, pointed out to the commission, "there's no doubt it is of very great advantage to a poor man to know the day on which his case is likely to be tried." it is indeed essential. the man himself and his witnesses do not belong to a class who can spend leisured hours flitting about gothic corridors or waiting to be fetched from public-houses day by day until their case is reached. certainty of trial and reasonable speed in reaching and disposing of the case are worth much more to business people than abstruse technical knowledge or long experience of the habits and manners of those who commit adultery. no one has more reverence than i have for the views of lord alverstone, who thinks divorce jurisdiction should not be given to county courts, yet one must not forget that not only is the opposite view supported by a large number of men and women who know the wants of the poor very intimately, but experts, like sir john macdonell and sir george lewis, both recognise that if you are going to give a whole-hearted measure of reform with the intention of really putting divorce at the disposal of the poor there is no other court to which these cases can honestly be sent. not only must this be done, but if we are to bring ourselves abreast of what already exists in foreign countries we must do a great deal towards cheapening the procedure even of the county court for those who are poor. the french have a very complete system of divorce for poor people, known as "_assistance judicaire_." the effect is that the persons to whom assistance is granted do not have to pay anything whilst they remain poor. the state advances the necessary money. the _avocat_ and _avoué_--barrister and solicitor--work for nothing. in case the assisted person comes into better circumstances he may be obliged to repay the state. if the poor litigant succeeds in his proceedings, the unsuccessful party pays the costs. in there were , persons who applied for assistance, , of which were in relation to matrimonial proceedings, and relief was granted to , poor people, of whom , were seeking different forms of matrimonial relief. in germany and the netherlands divorce is equally open to poor people, who receive state aid, and in scotland there is a well-known system which is known as the poors roll, which is said to have existed since . the scots parliament act, which instituted this excellent procedure, commenced as follows: "if there be any poor creature who for lack of skill or expenses cannot nor may not follow his cause the king for the love of god shall ordain the judge before whom the cause shall be determined to purvey and get a leal and wise advocate to follow such poor creatures causes: and if such causes be obtained [won] the wronger shall indemnify both the party injured and the advocate's costs and travail." it is amazing to find in scotland of the fifteenth century laws for the poor that we are only dimly thinking about in our vague uncertain timid way at the present day. what actually happens to the poor man of the present day is set out in the following case--a very common one:-- summoned in the city of london court for the non-payment of forty-five pounds, his wife's costs in a divorce suit in which he was the successful petitioner, a city messenger said that he received one hundred and seventeen pounds a year, and while the divorce suit was pending he paid his wife as alimony two pounds ten shillings a month. he had paid sixty-five pounds for his wife's costs, and still owed forty-five pounds. he had obtained an order for payment of his own costs against the co-respondent, but as that person was only earning a few shillings a week he did not know if he would get anything. judge lumley smith, k.c.: "does a successful husband always have to pay his wife's costs?" mr. seyd (for the defendant): "yes." judge lumley smith: "that is rather hard on him." the defendant added that while the suit was pending he had to borrow fifty pounds from his friends. judge lumley smith said a judgment debt must come in front of those of his friends, and ordered payment of one pound a month. this man could not have proceeded _in forma pauperis_, as by our then system this was not open to anyone with more than thirty shillings a week with no means above twenty-five pounds and clothing. if he had done so he would have had neither counsel nor solicitor to plead his cause and the only real benefit he would have obtained would be that he would not have had to pay court fees. the self-respect of working men in many cases hinders them from applying for assistance rendered nominally distasteful by the pauper taint. they manage these things better in france, and what the poor want in england, in fact as well as in name, is "assistance." the new rules that have come into force this year go a little way to provide this, but it is too early as yet to say how far they will meet the wants of the case. there was no need for any royal commission on divorce to explain to any reasonably educated citizen what ought to be done, but i agree that the labours of many good men and women have given chapter and verse for the want and the remedy in a convenient form. too much time was wasted over the moot points of the theologians, for most citizens are agreed that ecclesiastical opinions on the contract of matrimony as it affects the state are of the same value and no more as ecclesiastical opinions would be on such contracts as a bill of sale or a hire-purchase agreement, which may equally from time to time affect adversely or otherwise the moral conduct of human beings. "marriage is nothing but a civil contract. 'tis true 'tis an ordinance of god: so is every other contract: god commands me to keep it when i have made it." worthy john selden did not mean by that that it was to be kept for ever and in all circumstances, but that it was to be kept until such time as the law released the parties from it in the same way as every other civil contract. nothing is more true and necessary to be repeated in these days than the citizens' view of marriage law. whatever codes different religious men and women wish to observe they are free to follow. but the marriage law is a question of citizenship for citizens to settle for themselves. it is therefore satisfactory to read in the majority report that english laymen seem generally to base their views, not upon ecclesiastical tradition or sentiment, but upon general christian principles coupled with common-sense and experience of the needs of human life. it is the conclusion of these men and women--not the anathemas of priests--that want parliamentary attention. they have told us "that there is necessity for reform in this country, both in procedure and in law, if the serious grievances which at present exist are to be removed, and if opportunities of obtaining justice are to be within the reach of the poorer classes. so far from such reforms as we recommend tending to lower the standard of morality and regard for the sanctity of the marriage tie, we consider that reform is necessary in the interest of morality, as well as in the interest of justice; and in the general interests of society and the state." when shall we find time to ease these heavy burdens of the poor and let the oppressed go free? chapter viii flat-traps and their victims will you walk into my parlour said the spider to the fly 'tis the prettiest little parlour you ever did espy. the way into my parlour is up a winding stair, and i have many curious things to show you when you're there. will you? won't you? will you? won't you? walk in pretty fly. _nursery rhyme._ if we could remember half the wise saws and moral jingles that nurse and granny taught us in the nursery and not forget to act upon them in after life, what sensible citizens we should be! some day there will be cinematograph lectures to the young people just leaving the elementary schools, exhibiting not only the real spider, but his many human prototypes, who are lying in wait for the working-class man and woman at every corner of their career. a nature lesson an the smaller tally-man would be far more practical in a city school than a botany lecture on the lesser celandine. nevertheless, i doubt if it will do much good when it comes about. human beings are naturally divided into spiders and flies, and of the two the latter really have the best of it. there is not much fun to be had out of a cramped life in a dingy web counting your gains, even if a white waistcoat and a gold chain conceal your evil conscience. at least the fly buzzes round a bit and thinks he is seeing life before he biffs into the web. and no one need care much about the gay young sportsman bachelor variety--except perhaps his sweetheart, and she has a lucky escape, poor thing! but the silly old married fly who gets caught in the web and leaves a young wife and family starving at home, or, worse still, the house-mother fly who rushes into the web just to look at the spider's latest fashions which she knows her old bluebottle cannot afford--these are sad cases. thomas carlyle was mightily pleased with himself, i doubt not, when he hit upon that phrase describing his fellow citizens as "the twenty-seven millions, mostly fools." those last two words are constantly in the mouth of the odd fool in reference to the , , other fellows. still a long life in the county court compels me to the conclusion that the fool is not extinct; he is, indeed, but too prevalent. furthermore, the old world saying, "that a fool and his money are soon parted," is, like many another old proverb, a true saying. these being the facts, why does the law side with the inappropriate knave who preys upon the harmless necessary fool? scientific sociologists will no doubt tell me that if the law were to protect the fool the effect would be to increase and multiply the breed of fools, whereby the human race would become a bigger fool race than already it is. to which my reply would be that the law as it now stands makes the trade of knavery such a lucrative one that the business of it is fast becoming overcrowded, and the best hope of the extinction of the knave seems to lie in the fact that he will soon have to work nearly as hard for his living as the honest man. it is all very well to smile at the simplicity of the fool, and admire the cunning of the knave, but let us remember that the poor fool has in each generation to discover for himself that this is a world in which skimmed milk is constantly masquerading as cream, and that faith in the honesty of human nature in business affairs is in the poor man the first step on the road to ruin. i do not want the law to mollycoddle the fool and deprive him of the birthright of an englishman to make a fool of himself in his own way, but i should like to see the law doing more to stamp out the knave, especially--o, yes, especially--when he is a respectable, pious, well-to-do knave clothed in broad cloth and a well-boiled shirt, tempting the working man to part with his savings in the name of thrift and the preparation for the rainy day. what misery has been caused by well-advertised and wicked schemes of investment introduced to the working man by lying promises garnished with much prayer and psalm singing! if a chartered accountant could make out a balance sheet of the losses of the working class from frauds connected with building societies, insurance schemes, house-purchase companies, and the like, from the days of the liberator onwards, what a terrible indictment it would be of the way in which the law permits the rich knave to rob the poor fool! and yet how few of the promoters of these schemes arrive at their proper destination--the gaol. we open our prison doors readily enough to the poor debtor, but the rich man who lives on the stolen savings of the poor finds it as difficult to enter the gates of the gaol in this world as he will to reach the wicket gate in the hereafter. many societies have been formed under the limited liability companies acts offering working men facilities for buying their own houses or obtaining old age pensions or future lodgings in some glorious castle of spain. these have gathered in for years the savings of working men, and when the directors were called upon to redeem their promises it was found that the money had been spent in directors' salaries and commissions, and there was no provision whatever for the policy-holders. for as the law stands you may make nearly any wild promises you like, for that is not the contract. the contract is the long-worded, obscure policy which is sent to the workman later on. the gaudy booklet with its golden promises and pretty pictures of villas with bow windows which the poor man treasures up has nothing to do with the case. sentimental judges may try to find a way out; juries may give verdicts returning the poor man his money; but all to no purpose. the law stands firm for the solemn contract under the seal of the company, the policy which the poor man has never read and could not understand if he did; and the sleek directors chuckle at the angry working man, and with the blessing of the court of appeal remind him in shylock's own words: till thou canst rail the seal from off my bond, thou but offend'st thy lungs to speak so loud. and certainly as the law stands it is necessary to have a court of appeal stern and unbending in judgment to uphold the sacred nature of the contract. the doubt in my somewhat sentimental mind is whether transactions of this character between knaves and fools are in any practical business sense really contracts at all; and if they are to be deemed to be contracts whether power should not be given to courts of justice to release the victims from the flat-traps in which they have been snared, and give them at least some of their fur back again. this has been attempted with the moneylender, but not at present with very great success. for myself i have always thought that the moneylender, if he be a real moneylender and not merely a fee-snatcher, is by no means the worst setter of flat-traps. i have an uneasy feeling that if moneylenders were nonconformists or churchmen, instead of being jews, we should love them better. for if you get an actual sovereign from a moneylender you have at all events got some concrete thing that you can exchange for food and drink or clothing, and the token has an ascertained value; moreover, if you know a little arithmetic you know what you are paying for it. but if you buy clothing from a tally-man or a watch from a travelling jeweller, or a walnut suite from an instalment furniture dealer, or a family bible in parts from an area tout, you can have no idea whatever of the value of the thing purchased or the percentage of profit on the deal. and, though i should like to see all this class of trading done away with, and know that it causes great ruin and misery, yet to my mind the moneylender and even the lower class of tally-men are angels of light compared with the directors of insolvent collecting societies, who take the savings of the thrifty poor on promises that any sensible person must know to be incapable of performance. as i have shown elsewhere, the bulk of the smaller flat-trap poachers could be quietly exterminated by the abolition of imprisonment for debt. that alone is the artificial manure which enables these social weeds to flourish. withhold it from them and they would wither and die, and the world would be well rid of them. if the man in the street could listen, as i have had to do for the last twenty years, to tales of misery and wretchedness brought about by our absurd credit system he would understand something of my impatience at its continuance. i remember a small household that was ruined by a gramophone. a poor woman, a widow, earned twelve shillings a week, and a son was doing well at fifteen shillings a week. there were two little children. as things go in their world they were well-to-do. the devil, in the form of a tout, came down the street one saturday afternoon, with a beautiful gramophone. it was only a shilling a week, and all that was to be done was for mother and son "to sign just there at the bottom of the paper, and, of course, if they did not want to keep it they could send it back." however, later on, they found that they had signed to buy it; the boy fell out of work, the case was put in court, and judgment was entered against both mother and son in default of appearance for two or three pounds. then the son enlisted and went to india, and i first heard of the case when they brought the widow up on a judgment summons. i asked her why she had signed the guarantee, and her reply was: "tom was such a good lad and he was in work, and he was that keen to have it i couldn't deny him." anyone who has ever been any kind of a father or mother will not cast a stone at her for her folly. that is one of the short and simple tales from the annals of imprisonment for debt. what match are confiding folk like these for the lying scallywags who tout their inferior wares round the streets? and instead of our law remembering that we pray daily to be delivered from temptation, and playing the part of a father of the fatherless and a friend of the widows, it keeps alive section of the debtors act, , in the interests of about as low a class of knaves as ever disgraced the name of english trade. i know very well that there are many good honest folk who approve of imprisonment for debt and have fears about its abolition. these should remember that in france and germany and a great part of america there is no such thing, and yet trade does not suffer and the working classes do not starve. i should quite agree that if a man defrauds a tradesman by lying promises or cheating he should be punished, but imprisonment should be for fraud, not, as it is now, for poverty. as i have already pointed out, in america no honest man is likely to get into prison merely for the wickedness of owing money. we cannot say that is true here. in germany the working man lives on a cash basis. credit is not largely given, as there is no power of imprisonment for debt. england is the last civilised country whose law encourages the poor to live on credit, yet nothing is more true than this, that once start living on credit and you cannot get out of it. it is a downward path leading to the slough of despond. but until the law is amended we must be content to look on and see the poor in the cages of prison whilst those that set the traps and catch them wax fat and shine. and as soon as a boy or a girl begins to earn wages the evil one, in the shape of some kind of tally-man, is at his or her elbow with a watch, or a ring, or a family bible, or a musical instrument, or a shoddy sewing machine, the possession of which can be gloriously enjoyed on payment of the first instalment. i do not say that boys and girls must not buy their experience of the world and pay for it, but the law need not assist the knave in making it more expensive than is necessary. i have known several cases of young servants leaving good places and running off in terror because they have been served with a blue paper, "frightener" with a lot of law jargon about imprisonment upon it, threatening them with dire penalties because an instalment was due on a gold ring. more might certainly be done to prevent back-door trading, and there is no more reason why area touts should be allowed to infest the streets than the lower class of bookmakers. well-to-do people have very little idea of the number of firms that employ travelling canvassers and touts to hawk their wares from door to door in the mean streets. i remember once a fairly well-to-do working man--he was the doorkeeper of a public institution in manchester--had an action brought against him by a street tout because his dog, an airedale terrier, had bitten the prowling fellow as he was coming in at the back door. the man was badly mauled, and the dog having been proved to have bitten several other people of a like nature, i had, much to my discontent, to give judgment for the plaintiff. about a year afterwards--having forgotten all about the matter--i was visiting the institution where the defendant was employed, when, as the gentleman i wished to see was engaged, the doorkeeper asked me to step into his lodge and sit down and wait. "i've often wanted to see you, mr. porry," he began, "about that there dorg case." "what case was that?" i asked. "that case where you fined me five pounds over an airedale what tried to gobble up a tally-man." "i remember," i said doubtfully. "well," he continued, "you seemed to sympathise with me like, but you found against me. you see i had bought that dorg for the very purpose of keeping those fellows off the premises whilst i'm away. so i said if the law don't let 'im bite 'em, what's the use of the dorg? and what i wanted to arsk you was, may my dorg bite 'em within reason or did i 'ave to pay five pounds 'cause 'e mauled 'im too much?" i explained the law in relation to dogs and tally-men as well as i could, and my friend was good enough to say when i had finished: "well, i quite see you 'ad to make me pay as the law stands, but it don't seem to me just. if you can't 'ave a dorg, how can you keep them fellows out of the house?" that was more than i could answer. we parted friends--and there was, i think, a mutual feeling between us that the law of dogs in relation to tally-men was not all it should be. and many laws that are made for the best purposes are wrested from their beneficent uses by the wicked ones of the world and turned to the basest advantages. no legislation was hailed with greater delight by social reformers than the married women's property act, and yet one must admit that the fraudulent use of its provisions is a commonplace. i am not suggesting that it is mainly against the poor that it is misused, though i have known of cases under the workmen's compensation act where goods were alleged to be "in the wife's name" after an award had been made against the husband, and many a poor tradesman and small worker is swindled by this allegation, the victim not having the money to test it in a court of law, and the result being in any case so gloriously uncertain. i am sorry to put matrimony among the flat-traps, but the use of the married status among the dishonest to prevent a successful litigant from obtaining the results of a judgment brings it within this category. even the poorer classes themselves are beginning to make use of it as a kind of homestead law to protect their goods from execution. much as i am in favour of seeing the poor man's home protected to a larger degree than it is at present i do not care to see it achieved at the expense of the character of the occupants. any law that is a constant temptation to dishonesty is an evil, and there is no doubt that when the day comes for legal reform on a large scale, the various questions relating to the position of the married woman in the eye of the law will have to be considered. in many cases, of course, the reforms will be towards the enlargement of women's liberty, but in the matter of holding property it is clear that where a wife or a husband is tacitly allowing credit to be obtained on his or her appearance of property that property should be available to discharge the debt notwithstanding that it is claimed as the special property of one or the other. menander, the greek poet, in one of his comedies makes someone say, "to marry a wife, if we regard the truth, is an evil, but it is a necessary evil." if this was true in b.c. it became more convincingly the truth in a.d., when the married women's property act became law, and the "peculiar gift of heaven" was welcomed by the unscrupulous trader as a statutory stay of execution. since that day the micawbers of this world have put all their available assets "in the wife's name." the legal privileges of the married woman are not sufficiently well known. like "the infant" she is, indeed, the darling of the law. what a fine commercial spree an "infant" could have who looked older than his years and had an elementary knowledge of the law of "infants"! luckily they do not teach anything useful at educational establishments, and the "infant" never learns about his glorious legal status until it is too late to exploit it. but a married woman can, and does, have a real good time at the expense of her own particular tyrant, man. recently at quarter sessions a man was accused of stealing the spoons, and his wife was accused of receiving the property knowing it to have been stolen. but it was pointed out that it was one of the rights of a married woman to receive whatever her husband happened to bring home, and the judge directed an acquittal. there are several pretty little distinctions in the criminal law in favour of the married lady, but perhaps it is not seemly to advertise them overmuch. when we come to so-called civil matters, the lady who does not know and exercise her legal privileges is indeed a _rara avis_. how many of the debt-collecting cases in the county court are concerned with the good lady who runs into debt with the tally-man or other tradesman to the husband unknown? true, in many of these the husband has a possible defence, but the good man is generally a sporting, careless fellow, and pays his five shillings a month in the belief that debt is a natural sequence of matrimony. but when it comes to committing wrongs--or torts, to use the norman slang of the law--the married woman is the only legal personality that is privileged to forget her duty to her neighbour at someone else's expense. her unhappy husband is always liable for the damages and costs, although he may have done his best to hinder the wrong that has been done. if in his absence on the daily round the good lady slanders her neighbour's wife, or trespasses on her neighbour's garden to commit the further wrong of slapping her neighbour's infant, the husband, for the purposes of paying damages, is regarded by the law as being a joint offender. the law supposes that a wife acts under her husband's directions. when they told mr. bumble that, he replied in the immortal phrase, "if the law supposes that, the law is a ass--a idiot. if that's the eye of the law, the law's a bachelor; and the worst i wish the law is, that his eye may be opened by experience--by experience." it does seem a bit hard on the poor man certainly. if he keeps a dog the animal may have his first bite at his neighbour free of expense, and when he gets to hear about it he can send the dog away. but with a wife there is no question of _scienter_. you may not suspect that your good lady is given to slander, assault and such like indiscretions, but, if it so happens, you have to pay. nor do i see what steps you can take to hinder the lady from trespasses which she has the mind to commit. for if you were to place her under lock and key i believe a sentimental high court judge would grant her a _habeas corpus_ that she might go out again into the wide, wide world and exercise her undoubted right of committing wrong at her husband's expense. and i set down these disadvantages of husbandry as some sort of excuse for the meanness and dishonesty of the man who uses "his wife's name" to protect his assets and injure his creditors. i have in my mind a commercial married man auditing in his debit and credit mind the matrimonial balance sheet. "see," he says, "my liabilities under the law of husband and wife. surely there must be some assets of the relationship in which i am entitled to participate!" then he studies the married women's property act, and chuckles. whether this is so or not, there is no doubt that, since the act of , "everybody's doing it," and when the bailiffs come in the furniture and the stock-in-trade are always found to be "in the wife's name." it is a form of conspiracy, you would say, and the police should put a stop to it, but "old father antic the law" has his answer for you there--a wife cannot be guilty of conspiracy with her husband, for husband and wife are one. there was a story illustrating the prevalence of this custom in the precincts of strangeways, manchester. mr. isaacs, who had been absent from business for some time, returned to his workshop looking pale and white and very weak. a sympathetic neighbour put his head in at the door, and, full of pity, said: "dear me, dear me, you look very ill, mine friend. vot is the matter with you?" "ach," groaned isaacs, "i have had a terrible time, a shocking bad time." "vot vas it all about?" "i vill tell you," replied isaacs. "the veek before last two doctors came to mine house and took avay mine appendix." "bah!" muttered his friend contemptuously. "i vonder at you. that vos all you own fault: you should have put it in the vife's name. then they could not touch it." the story might be told in a scot's accent, or even a welsh one for that matter, and it would represent with equal truth the prevalent outlook of mankind on the commercial advantages of matrimony. i by no means desire to suggest that "the wife's name" is made a baser use of by the eastern communities of strangeways and whitechapel than among the fair-haired saxons of surbiton and chorlton-cum-hardy. there are many people who see no wrong in doing what is within the law, and there has always been a human tendency to score off one's brother man by a smart trick since the days of jacob and esau. the fool will always be outwitted by the discreet ones of the world, who justify their ways by reminding us that we are only bound to obey the letter of the law, and that there is no duty cast upon us to interpret and respect its spirit. and simple charitable folk will say that after all things may really be quite honest and straightforward, and it is only the stingy creditor who sees fraud and the ungenerous judicial mind that finds in the constant repetitions of a series of happenings an intention in the parties to whom the events occur to wrong their neighbours. for why should not john smith put over the door of his shop "j. smith," and how can the pleasant, careless fellow pay his debts in these bad times, and why do those wholesale curmudgeons press for their money and weary of john's winning smile and dangling tales of future payment? if creditors won't wait it is really very foolish in these days to sue for the money and put the bailiffs in. for friend john is away at the races and when they come and seize the stock and effects of "j. smith" there is mrs. smith, dear, good lady, to whom of course everyone knows, or ought to know, the business belongs. is not she a married woman? cannot she trade in her own name? is not her name over the door--well, not her name exactly, but her initial--her full name is jane smith--and as for her husband, he has never been anything but a servant of hers, and now she is going to run the business herself! in due course of evolution, no doubt, we shall breed this dishonesty out of the race, or else the kind of poor, simple tradesman who gives credit without inquiry will become extinct. at present there are quite a number of people who regard laws not so much as guides to good conduct, but as difficulties to be overcome in the obstacle race of life. a learned king's counsel, a well-known expert in bankruptcy and bills of sale, told me of an interview he had with a secretary of a social society who came to ask him to deliver a lecture. the secretary explained that their members were mostly cabinet makers and small furniture dealers, and they had a meeting and a discussion every month. the king's counsel agreed to come, and asked what sort of subject they would like him to speak about. "well," said the secretary, "our president, mr. x----, you may know him----" the king's counsel shook his head. "well, he has been bankrupt twice--i thought you might have met him. he proposed a very good subject, and the committee were quite pleased with it." "and what did he suggest?" "well, seeing we are nearly all interested in the furniture trade, he thought there would be a good turn up if you would come and lecture on the bills of sale acts and how to avoid them." and i suppose a brainy man, with a good wife, and, what is almost as rare nowadays, a good bill of sale, can live on nothing for about as long as it can be done. that candid poet, arthur hugh clough, pointed out many years ago that the ancient decalogue did not cover all our sinful modern ways, and amended the eighth to run thus: thou shalt not steal; an empty feat when it's so lucrative to cheat. and surely we may ask, why should this miserable cheat flourish among decent citizens of to-day? should not a man or woman be made to trade in his or her own name? in a business community it is almost impossible to make adequate inquiries before you start trading, and why, if you come to think of it, should an individual desire to trade in any but his own name? the frauds that are committed may not be very serious, but all forms of cheating and sharp dealing are detrimental to trade, and trade, after all, is the basis of our national pre-eminence. it seems particularly undesirable in a nation that prides itself on its domestic purity that "the wife's name" should be a symbol of dishonesty. if we cannot attain to a decent code of commercial morality without it we shall have to ask our four-hundred-pound legislators for yet another statute. "one man, one name, and make him trade in it," would be well received by all the honest, rich and poor, throughout the country. i have dealt at some length with this question of putting goods in the wife's name because i doubt if folk whose business does not take them into the county court have any idea how prevalent it is and what a very present help it is to the man who is living upon his neighbours by some semi-fraudulent business. every now and then the setter of flat-traps catches a victim too strong and lusty to remain in the trap. the shoddy gold watch is returned, the bogus business is thrown back on the exploiter's hands, the company promoter who has annexed the savings of the victim by false promises is sued for damages for deceit. in some of these cases by pertinacity and the spending of more money a triumphant judgment will be obtained by the fly against the spider. but there it ends. when the high bailiff visits the web he is politely informed that it is part of the wife's separate estate, every thread in the web is covered by a bill of sale, and if you try to imprison the old spider for debt you would find the greatest difficulty in proving his means to the satisfaction of the court. bankruptcy has no terrors for the old fellow. you will probably find that he has been there before and rather likes its old-world dusty crannies and the peaceable formulæ of its schedules and accounts. no doubt it is very difficult to draft laws that the wicked cannot wrest from their righteous purpose and use for iniquity. but the law plays into the hands of the knave by its verbosity and diffuseness and the great mass and complexity of it, which the knave studies with as great care and astuteness as the lawyers and judges whose duty it is, within the four corners of the law, to prevent his wrongdoing. when it is enacted "thou shalt not steal," the court knows where it stands, but that is a far more easy statute to construe than anything the parliamentary draftsman turns out to-day. if we could get a short statute of one clause, "thou shalt not cheat," with an appropriate schedule containing a tariff of fines and imprisonment, i think magistrates could do a good deal to cleanse the cities of a great many low ruffians who make their living by swindling the poor and make the law as it stands their attorney to collect the spoils. chapter ix poverty and procedure therefore i counsel you, ye rich, have pity on the poor. though ye be mighty at the law be ye meek in your deeds. the same measure ye mete wrong or right ye shall be weighed therewith when ye go home. * * * * * to the poor the courts are a maze if he plead there all his life, law is so lordly and loth to end his case; without money paid in presents law listeneth to few. piers plowman. we have moved along a little since the days of edward iii., and if piers plowman were with us to-day he would see no visions of "money paid in presents" to state servants, at all events not to the judiciary. bacon was the last lord chancellor who indulged this evil habit, and if, as his admirers tell us, he was at the time producing his own plays on sharing terms with impecunious actors, one can understand the necessity of it whilst condemning the practice. although we have made justice pure enough in this country and not directly purchasable, yet the rest of piers plowman's indictment is true enough of the present time, and law is still a maze wherein the rich are guided by the clever ones who know the way and the poor too often get lost for want of an honest guide. there are many signs that the public conscience is being slowly awakened to the iniquity of one side in a law suit having all the legal aid that money can buy and the other side nothing. in criminal cases something is already done and a beginning is being made on the civil side in the high court to give the poor legal aid. these reforms do not amount to very much as yet, but they are the first steps towards remedying piers plowman's grievances and, considering that it is less than six hundred years since that excellent visionary made his moan over the law and the poor, and the drawback poverty has in the procedure of the courts, there seems to have been no very unusual delay in government taking the matter up. we may at least congratulate ourselves that we have got a scheme of some sort which can be amended and put into a business shape instead of the select commission which reformers are generally offered to keep them quiet. old piers would be awfully happy--"bucked," i think, is the modern word--if he could know that after five hundred and fifty years we were tackling the problems of life that worried him so greatly. in another six hundred years or so a lot of the little matters referred to in this book will get smoothed out. if you can get into the habit of thinking of the world's progress in centuries instead of months you will find it very comforting. until more is known of these new schemes and their workings we must write of the present system as we know it, for any change in it will certainly be slow enough and it is something to understand the circumstances of the present in order to see what changes are really required. you may remember that george eliot in "the mill on the floss" describes mr. tulliver as saying, "that in law the ends of justice could only be achieved by employing a stronger knave to frustrate a weaker. law was a sort of cock-fight in which it was the business of injured honesty to get a game bird with the best pluck and the strongest spurs." i do not say for a moment that mr. tulliver was right, but i think george eliot shrewdly described in his words the attitude of mind of the man in the street towards the high court of justice. cock-fighting was always a popular, cruel, and exciting sport, and now that it is done away with the next best thing is to squeeze into the divorce court and witness a real set-to between chanticleer, k.c., and young cockerel, who, they say, will be taking silk himself very soon and will knock the older bird out of the ring. certain it is that the poor have a notion, in which there is doubtless some truth, that the fact that the other side had a better and more expensive counsellor gave them a greater chance in the legal lottery. the side that can put carson on to bowl at one end and f. e. smith at the other must start at a better price than the side which has to rely on an unknown amateur in the back row. of course, a. n. other may take some wickets, but the public have a very business-like belief that money talks, and that the verdict of the jury, like most of the verdicts in life, will turn out to be on the side which can put in the field the most expensive team. certainly i can say without hesitation that working men would never have got their due from the workmen's compensation acts if each particular poor workman had had to fight for his rights at his own expense. it is to the trade unions and their co-operative litigation that the thanks of the workmen are due for preserving their rights under the act. mr. lysons was a pendleton collier, and had only worked for a few days when he received an injury. this happened in , and at that time the old act said that no compensation could be recovered until a man had been off work for two weeks. it was argued before me that this being so, unless a man was employed for more than fourteen days he could not come within the act at all. the argument did not appeal to me, but it did to the court of appeal, and later on again it did not to the house of lords. so the man got his money. but the point of the case is that had not the union come forward to take his case to the house of lords, lysons would have lost his compensation, and the act of parliament would have been construed to limit the rights of the poor for all time. this particular case cost the union six hundred pounds to fight, and the point in dispute was whether the injured man was, or was not, to receive six shillings a week for five weeks. several cases have run the same course. the act is obscurely drafted and capable of many interpretations. some of these that still stand on the books remain precedents only because the workman has not money enough to carry the case higher and has no union behind him. and, though in the first instance a workman might often make shift to state his case in the county court himself and rely on his own advocacy as to the facts and the judge's knowledge of the law, it is absurd to suppose he could argue a legal point in the court of appeal or house of lords without assistance. unless a trade union is ready to take up the case, the only hope of a man getting his rights is through the aid of a speculative solicitor. such a system has its drawbacks to the litigant and the profession, and leads to unpleasant and undesirable incidents, but it is no use shutting one's eyes to what is going on every day in every court. dodson and fogg have always been looked down upon ever since sam weller gave them away by blurting out in court that it was "a wery gen'rous thing of them to have taken up the case on spec. and to charge nothing at all for costs unless they got them out of mr. pickwick." no doubt it is very unprofessional to make such an agreement, but with the law as it is, and the poor with rights under the law, how on earth are they to get their rights unless there is a speculative solicitor ready to risk a certain amount of out-of-pockets in the hope of getting them back with advantages from mr. pickwick? unless a speculative solicitor is ready to back the poor man's case with gratuitous services and money enough for counsel's honorarium, surveyor's plans, doctor's and treasury fees, how can the case be launched at all? indeed, could one be certain that such a solicitor never undertook any case unless he was satisfied that his client had right on his side, should we not have to admit that the speculative solicitor was a ministering angel engaged in a practice of delivering the poor that cried, and the fatherless, and him that had none to help him? and as day by day the poor have more laws made to guide them into the way of righteousness, and more statutes are passed with the intention of making the life of the poor healthier, brighter, and better, and as, moreover, in this imperfect world the servants of the evil one are always prowling round to cheat the poor of their rights, it would seem to follow that if law courts and litigation are to be the order of the day we must each of us have a panel lawyer to whom we can go when we want an injunction and our _habeas corpus_ is not up to the mark. for years and years there have been speculative doctors. no one thought any the worse of doctors because they founded hospitals and gave their services free of charge and entered a _caveat_ against disease and death without first getting something on account of costs. and why should not we have legal hospitals and out-patient departments attached to the county court where the house physician is the young man who has taken the best degrees in law and the visiting surgeon is the great leader of the legal profession? the idea is no more ludicrous in one profession than it is in another. medicine has its noble traditions of charity. why should not lawyers set an example of self-sacrifice and unselfishness? or is there some subtle essence in the law that of necessity destroys the favourable microbes that promote peace and goodwill among men? we of the long robe of the inns of court have always held in theory that we were there to take on the protection of any and every suitor. please do not think when your attorney asks you for counsel's fees that you are hiring him by that golden nexus of guineas. by no means. no barrister can stoop to take wages or salary. what you are giving him is a mere gratuity, "which a barrister cannot demand without doing wrong to his reputation." and, that being so, one might expect some of the wealthier templars to take the ideal of their profession at its face value and set up to advise and plead for the poor not only without wronging their reputation by demanding a gratuity, but by refusing to accept one. in a recent case much was said of the noble attitude of barrister a., who, being a political opponent of barrister b., appeared for him when he had got into trouble--i use the phrase in no technical sense. correspondence ensued, and some enthusiasts for the honour of the profession said that every barrister was bound to take up a case if it was offered him. i wonder what would happen if lazarus went knocking at the doors of crown office row and pump court with a claim against dives, but without a gratuity in his hand? would he get anyone to advise him on evidence or settle the indorsement on his writ? one never knows. the atmosphere of our courts is not all that it should be. i do not refer to the physical fog which pervades them, the smells of which the electric fans blow about the building in the sacred name of ventilation, but the moral atmosphere of our courts always seems to me to suggest that the law is an appanage of the rich. by all means let us have dignity, decorum, and distinctive dress, but if you go into the high court, although you may hear the affairs of the poor dealt with sympathetically and in a just spirit, the atmosphere of the court is well-to-do and prosperous. everyone connected with the duties seems to belong to the upper middle class. there is no place at all for the working man to play his part except on occasion in the jury box. and then, if the claim is the claim of a poor man against a rich man, a special jury is empanelled and you get at a greater cost a tribunal of the defendant's own class to hold the scales of justice. and though i firmly believe that all do their best, and that speaking generally justice is well administered, yet i can quite understand the feeling of a poor man entering a court of justice and finding that the judge who lays down the law, the jury who decide the facts, the advocates who argue the case, and the solicitors who instruct the advocates are all drawn from a class of the community which the working man rightly or wrongly believes to be hostile to his outlook on life. if i have not made myself clear, imagine yourself bringing an action against a trade union, and finding when you came into court that a well-known ex-labour m.p. was on the bench, that the jury were chosen entirely from the working classes, and that you were only allowed to be represented by a next friend chosen from the ranks of a particular trade union. would you, under circumstances of this kind, even if you were convinced of the honesty and sincerity of every portion of the tribunal, feel that sense of security in its right decision which is so essential in a community where law should be respected? and that this is a real trouble and that the courts are aware of its existence was shown in a recent judgment of lord sumner in the court of appeal. a learned judge in the court below in correctly directing the jury as to the effect of the trades disputes act had "added some remarks pointedly expressed which were indirectly a criticism of the act and substantially a statement to the jury that a person who availed himself of the defence afforded by the act was setting up a dishonest defence." these remarks lord sumner described as "inopportune, detrimental to the defendant's case and, perhaps worst of all, irrelevant." he concluded with quaint sarcasm: "a judge in charging a jury could never safely indulge in irrelevant observations because he could not be sure that the jury would be sufficiently logical to take no notice of them." i intend asking the office of works to have that painted up on the walls of my court. it is worthy of letters of gold. irrelevancy is certainly the worst of sins and it is a natural vice in most of us only to be kept down by prayer and fasting from the practice of it. we all dislike some act of parliament; the insurance act, the ground game act, the finance act--none is so perfect that it has not some judicial enemies. and it is certainly very tempting when you meet the fellow in court to give him a bit of your mind. but it must not be. the legislature is our schoolmaster. outside in the playground and on vacation we can express our opinions about him freely, but in school--no! lord sumner is perfectly right and when he next speaks on this subject i wish he would point out with authority that this human habit of irrelevancy is the constitutional reason for maintaining the grand jury. for centuries the king's bench judges have worked off their natural irrelevancy in charging the grand juries at assize towns to the great benefit of themselves and the local papers. this national safeguard, this barrier between judicial irrelevancy and the public at large, should not be removed in a careless spirit. our forefathers knew a thing or two. the grand jury is really a sound instrument of constitutional mechanics. it is the safety valve for the blowing off of judicial steam. lawyers and judges are certainly held in higher esteem to-day than they were in the past. gulliver describing the contemporary lawyers to his friend and master, the houyhnhnm says: "there was a society of men among us, bred up from their youth in the act of proving, by words multiplied for the purpose, that white is black, and black is white, according as they are paid. to this society all the rest of the people are slaves. for example, if my neighbour has a mind to my cow, he has a lawyer to prove that he ought to have my cow from me. i must then hire another to defend my right, it being against all rules of law that any man should be allowed to speak for himself." in another passage he inveighs against judges in a strain of even coarser invective. "now your honour is to know," he says, "that these judges are persons appointed to decide all controversies of property, as well as for the trials of criminals, and picked out from the most dexterous lawyers, who have grown old or lazy; and having been biassed all their lives against truth and equity, lie under such a fatal necessity of favouring fraud, perjury, and oppression, that i have known some of them refuse a large bribe from the side where justice lay, rather than injure the faculty, by doing anything unbecoming their nature or their office." even in the extravagance and exaggerations of these passages must have diminished the force of the satire, but one must remember that under the old forms of procedure and law of evidence all sorts and conditions of chicanery were possible, and the search after truth was clogged and hampered by technicalities that made for injustice. crabbe, in "the borough," draws a picture of swallow, the lawyer, "a hard, bad man who preyed upon the weak," but he had sufficient insight into the reality of things to see that: law was design'd to keep a state of peace; to punish robbery, that wrong might cease; to be impregnable; a constant fort, to which the weak and injured might resort. and the main reason that the law in old days failed in a great measure to carry out its mission to protect the poor was the extraordinary mystery and obscurity of it. where law is a jargon of technicalities foreign to the business ideas of the people an immoral man who is a lawyer has an easy task before him to defraud the weak. in our own time the worst frauds committed by lawyers have been mortgage frauds where the deeds were deposited with solicitors who converted them to their own use. our land transfer system is a relic of the past; it is a mystery that no plain citizen can comprehend. it is necessary for him to employ a lawyer to carry out the smallest transfer of land and it is necessary for him to rely on the statement that the land has been conveyed to him and that the title deeds are in order. the technical obscurity of the transaction opens the door to frauds that would be impossible with a modern, businesslike, public land transfer department. and as technicalities in law and procedure were gradually abolished so we find the pictures of lawyers in contemporary fiction becoming less ignoble, though there will always be more romance in the story of a fraudulent lawyer leading a double life than in the career of a blameless practitioner who serves his clients honourably during office hours and returns punctually to his accustomed suburb at the appointed dinner hour. though we have done away with much legal fiction and cumbrous technicality we cannot greatly boast of the simplicity of our legal procedure. take the county court practice for instance. here is a court primarily designed to adjudicate on the simple disputes of poor people. there are two practice books. they cost over a guinea apiece, they consist of hundreds of pages and are absolutely incomprehensible except to the trained lawyer. this being so it is clear that the lawyer is as necessary to the poor man as he is to the rich. it is a sign of grace in the matter of procedure that whilst this chapter is in the writing we have some new rules issued about giving poor people assistance in high court actions. up to now the procedure _in forma pauperis_ has not been of practical benefit to the poor except in enabling an occasional important appeal to reach the house of lords. it is too soon to say whether these new rules will meet their object. shortly, the scheme is that a poor person--meaning one who can satisfy the judge that he is not worth fifty pounds--will have counsel and solicitor assigned to him from a rota. after that his case will be conducted free of costs or fees. if he succeeds the solicitor--but in no case the counsel--will get costs. much depends of course on the spirit in which this is worked, but it only refers to the high court--which is not, speaking generally, the poor man's court--and it seems unlikely on the face of it that a scheme of this kind, with no one in particular to look after it and advertise its existence, will do away with the undesirable activity of the speculative solicitor. one wishes it well, but except perhaps in relation to divorce cases it does not appear on paper to be of great practical use. the fact is that it is not a very hopeful thing to go to lawyers and committees of lawyers for reforms unless you have the driving power of the business man behind them. nothing was to be more disastrous according to legal prophecy than the institution of the public trustee. no reform has done more to mitigate domestic worries and anxiety than this beneficent institution. lawyers and laymen nowadays concur in casting their troubles upon him and sheltering themselves and their clients beneath his protecting wing. if we are ever to have a proper system of legal advice for the poor it will, i think, have to be made an official department with a business head of affairs and attached lawyers. it might perhaps be added to the duties of labour exchanges, but in any case it should be a department of the board of trade, and it should have branches throughout the country and power to help the poor in all the courts of the country. a device for suing _in forma pauperis_ working only in london, such as is set up by the new rules, cannot be of much avail in tackling the problem of placing legal advice and assistance at the call of the poor. i wish some experiments of a voluntary nature could be made of a more extended character than the poor man's lawyer societies that are attached to university settlements, and do good work in advising the poor. it is really in court that a poor man wants assistance. i often think that a poor man or woman coming into a court for the first time is like the average middle-class englishman when he finds himself on calais pier without a word of french speech at his command and entire ignorance of the ways of the _douane_. how he clings to a friendly interpreter with a gold band round his hat. how extravagantly he rewards him when he and all his luggage are at length safely in the train. and why should not we encourage an amateur legal interpreter in our county courts just as we welcome missionaries in our police courts. i should like to see practising in each court an official friend of the poor, ready to state the case of a poor man or woman who sought his assistance. there is an existing section of the county courts act allowing a friend to appear for anyone by leave of the judge if he does not do it for fee or reward, and on that foundation something might be built. i remember a clergyman, father gething, appearing for an old army pensioner against an insurance society with complicated rules, and asking to be allowed to address me, and conduct the old man's case. sir william cobbett, not having in his mind for the moment the section i refer to, objected. i asked father gething whether he was going to recover any "fee or reward" for acting in the case. "certainly not," replied the reverend gentleman. "but perhaps," i continued--somewhat mischievously--"sir william is going to contend that the word 'reward' in the statute means not only reward in this world, but the next." sir william smiled and shook his head at me in dignified reproof. he was not going to argue this, and with his very good will and assistance the clergyman conducted the case, and in the end secured a victory. in the army courts-martial a prisoner is always allowed a friend to advise him and to take a limited part in the proceedings, and i cannot help thinking that long before the poor man has his panel lawyer voluntary charity will be allowed to supply him with a "friend," who shall be trained in the law, but ready to give his services to the poor without fee or reward. many will think that the suggestions that i have sketched out of assistance to poor people are chimerical and that in any case they are likely to be costly and that the grievance, such as it is, is not worth the money to be spent on the remedy. at one time i seem to be calling out for no lawyers and here i am demanding more lawyers. the inconsistency is only apparent. in all legal reforms i place in the forefront conciliation. i want to see the french "preliminary of conciliation" applied without delay to all small cases and i want the judge of the county court to be clothed with the duty of the french _juge de paix_, whose business it is, in the first instance, to bring the parties together and get them to shake hands. only when that fails, or in those cases where litigation is essential and necessary to the proper determination of a real dispute, should i ask the state to assign counsel and solicitor to the poor. if a poor man has an honest suit with a rich man it should be a point of honour with the courts to see that he is not at a disadvantage in their procedure. but merely providing a poor man with lawyers will not alone work the miracle. money must be found to pay his witnesses and prepare his case, and this is even more necessary in civil cases than in the defence of prisoners where, as we shall see when we come to consider criminal matters, the state, whilst providing legal aid, has stopped short of providing what may be still more necessary, financial assistance for necessary evidence, some of which may be of an expert and expensive character wholly out of reach of a poor man. piers plowman naturally threw the whole blame on the lawyers who went about, as he said: pleading the law, for pennies and for pounds, unlocking their lips never for love of our lord. but i cannot for myself see why a lawyer or a doctor should work for nothing any more than a business man or an author, and, if we knew the truth, i expect we should find that old piers himself invented his vision as much in the blessed hope of royalties as "for the love of our lord." i do not want charity for the poor in our legal procedure, nor do i wish to see litigation multiplied by cheap remedies. on the contrary, i want every effort made to cut down litigation to a minimum, but when a lawsuit takes place i want it to be a fair fight and no favour, with each side equally well equipped for the fray. chapter x crime and punishment the penal laws of the british empire are, by foreign writers, charged with being too sanguinary in the cases of lesser offences. they hold that the punishment of death ought to be inflicted only for crimes of the highest magnitude; and philanthropists of our own nation have accorded with their opinion. such persons as have had no opportunity of inquiring into the subject will hardly credit the assertion that there are above one hundred and sixty offences punished by death, or, as it is denominated, without benefit of clergy. anthony knapp and william baldwin: preface to "the newgate calendar," . the progress we have made in the reform of criminal law in the last hundred years is really remarkable. in very recent days we have at last allowed the prisoner to give his evidence of the matter he is charged with if he desires to do so. we have, under certain restricted conditions, supplied him with legal assistance, and, best of all, there is at length a court of criminal appeal. it is interesting and encouraging when your mind has a bent towards legal reform to see how past reforms have come about. as recently as prisoners accused of felony were not allowed counsel, and the rev. sydney smith, who had a winning way of stating the case of the law and the poor in his own day, was pleading in the _edinburgh review_ for a reform of this matter. one would have thought then, as one often thinks now, that a mere statement of the issue would have been sufficient. this is a picture of things as they were. "there are seventy or eighty prisoners to be tried for various offences at the assizes who have lain in prison for some months; and fifty of whom, perhaps, are of the lowest order of the people, without friends in any better condition than themselves, and without one single penny to employ in their defence. how are they to obtain witnesses? no attorney can be employed--no subpoena can be taken out; the witnesses are fifty miles off perhaps--totally uninstructed--living from hand to mouth--utterly unable to give up their daily occupation to pay for their journey, or for their support when arrived at the town of trial--and if they could get there, not knowing where to go or what to do. it is impossible but that a human being in such a helpless situation must be found guilty; for as he cannot give evidence for himself, and has not a penny to fetch those who can give it for him, any story told against him must be taken for true (however false) since it is impossible for the poor wretch to contradict it." and yet, absurd as it seems to us to-day, the prisoner's right to counsel was not obtained without a severe struggle. at the back of the mind of those who opposed the reform was the idea that as prisoners were accused by the crown it was an act of disloyalty to defend them. ridiculous as that idea is it still exists in a form that is interesting only as showing that the tradition was once a reality. a king's counsel has to obtain leave from the authorities, and pay a small tribute therefore, before he can appear for a prisoner and against the crown. leave is never refused, but the existence of such a curious custom is only comprehensible by studying the folklore of the subject. a hundred years ago this folly sanctioned by antiquity was a reality. the defenders of the position said it was really all done in the interests of the prisoner. his witnesses were not put on oath, and this allowed them to tell any falsehood they wished; he was saved the expense of his counsel--as though he preferred economy to hanging--and the judge, he was told, was his counsel--an arrangement that the prisoner cannot have been very grateful for when he heard his counsel on the bench summing up to the jury for a conviction. the nonsense that was talked and written on this subject is encouraging to those who want things done to-day. against all reforms, arguments of this kind have to be listened to and laughed out of court, but to-day we are in a better position than sydney smith was, for we often find in the official world a human being ready to help on a reform when the time is ripe for it. in his day common-sense and common humanity had not permeated into government offices, "the attorney-general and the solicitor-general for the time being always protesting against each alteration and regularly and officially prophesying the utter destruction of the whole jurisprudence of great britain." it was not until ten years after the _edinburgh review_ article was written that parliament in august, , passed an act to permit prisoners charged with felony the right to be defended by counsel. and yet there are many people who think we move too fast in necessary reforms. sydney smith mentions as one of the injustices to the prisoner his inability to give evidence. this remained a disability until our own time and was only removed with great difficulty and against the advice of many learned lawyers. the folklore of the subject is quite entertaining. our ancestors considered, from introspective knowledge of themselves and their neighbours, that no one with any interest in a dispute was likely to speak the truth about it, they therefore did not allow the parties to a suit to give any evidence at all. this was the old law in both civil and criminal cases. thus you may remember that in the great case of _bardell_ v. _pickwick_ neither plaintiff nor defendant gives evidence, because in law at that date they were not competent witnesses. the inconveniences of this in civil matters was patent to everyone but the lawyers. writing on the incompetency of witnesses to give evidence, bentham said with some humour, "in the bosom of his family the lawyer by the force of good sense returns to the simple method from which he is led astray at the bar by the folly of his learning. no one is so deeply tainted with his judicial practice as to apply its rules to his domestic affairs. if you would represent madness--but a madness where all is melancholy and unintelligible--you have only to imagine an english barrister carrying into ordinary life the fictions, the rules, and the logic of the bar." certainly we cannot believe that when sergeant snubbin returned to his house and found a dispute raging between his cook and his butler that he tried to find out the truth about it without hearing what either of them had to say. in when county courts were established, the parties and their wives were allowed to give evidence, and so obvious were the advantages of this that in lord brougham passed the evidence amendment act extending the system to other courts. the only thing that surprises us to-day is that there could ever have been any question about the necessity of allowing parties to give evidence if it was really desired that they should have justice. but we still clung to the right of the prisoner to keep his mouth shut, and in our insular way boasted of his privilege. thackeray is horrified by the examination of the prisoner in the ordinary french way. "in england, thank heaven, the law is more wise and merciful!" he sees in the french government advocate an official seeking in every way to draw confessions from the prisoner to perplex and confound him and to do away with any effect that his testimony might have on the jury, and he thanks heaven openly that we should "never have acted as these frenchmen have done." what really troubled thackeray's patriotic mind was the indecency of asking the prisoner any question at all. victorian englishmen of all grades were peculiarly proud of our criminal administration of justice and considered the privilege of the prisoner to keep his mouth shut was the keystone of the edifice. dickens approached the matter more hesitatingly: "i wonder," he writes, "why i feel a glow of complacency in a court of justice, when i hear the learned judges taking uncommon pains to prevent the prisoner from letting out the truth. if the object of the trial be to discover the truth, perhaps it might be as edifying to hear it even from the prisoner, as to hear what is unquestionably not the truth from the prisoner's advocate. i wonder why i say, in a flushed and rapturous manner, that it would be 'un-english' to examine the prisoner. i suppose that with common fairness it would be next to impossible to confuse him unless he lied; and if he did lie i suppose he could hardly be brought to confusion too soon." this being the victorian attitude in the matter it was hardly to be wondered at that the reform was delayed until our own day. yet i doubt if anyone conversant with the criminal courts would doubt that although there are cases where it has been to the disadvantage of the guilty to go into the witness box, it has been of enormous value to the innocent that he can give his own account of things to the jury. there are three recent acts of criminal law reform which have done much to safeguard the interests of innocent men, especially if they are poor. these are the criminal evidence act, , the poor prisoners defence act, , and the court of criminal appeal act, . if we could have such an outburst of legal reform every ten years in other subjects we should be doing well. but it must not be thought that these reforms were obtained without trouble. each was strenuously fought, year by year, for many many years before the energy and patience of the reformers were crowned with success. one would have thought that the claim of a citizen, charged with a criminal offence, to give his account of the affair to the jury, if he wished to do so, was one of those matters of elementary justice that could hardly be contended against at the end of the nineteenth century, but the fight against this privilege was really a very strenuous one. twenty years before the reform actually came the bill had been read a second time in the house of commons by a majority of , showing, at all events, that the lay mind of the country had no doubt about what should be done. in each succeeding year, when any new offence was created by act of parliament, there was a special clause put in to enable a prisoner to give evidence, so that at length there were some thirty or more acts giving a prisoner the right to give evidence. this made the state of the law, as lord herschell said, "utterly indefensible and ridiculous." we were living under two competing systems, whose constant absurdities were made manifest in the courts; thus, if a man was charged with forging a trade mark he was a competent witness, if he was charged with any other forgery his mouth was closed. curiously enough, owing to the irony of our party system, it was the conservatives who brought in this reform and the radicals who opposed it. it was left for sir richard webster to point to the progress of all the states of america, and the experience of our colonies, and to ask that we should not lag behind in the good work of reform. that sturdy radical, mr. pickersgill, was shocked, and elaborated the quaint argument that an innocent man should be debarred this privilege lest he might be an ignorant person who would tell lies, and get confused and muddled, thereby prejudicing his chance of acquittal. a large body of influential legal opinion was adverse to the bill, and in the division lists voting against the reform you find the names of sam evans, john morley, w. s. robson, lawson walton, and other well-known liberals. it is one of the crosses that a legal reformer has to bear that only through the services of one or other of the great parties in the state can he hope to see his pet dream materialise and there seems a certainty that, if one party is converted to a proposal, the other party makes a point of being diverted by it. over and above that unhappy difficulty to progress there is the certainty that the lawyers, as a profession, will always offer a strong opposition to any proposition of legal reform, and, when this is defeated, will fight strenuous little rearguard actions to cripple and delay it. the poor prisoners defence act met with less opposition. it was a comparatively small affair, and there were a few fees in it. mr. justice grantham--whose merits as a friend of the prisoner and a humane judge are often lost sight of in remembering his daring dives from the bench into the sea of politics--this good judge was a keen supporter of the movement for the better defence of poor prisoners. he thought the magistrates ought to ask the prisoner what his defence was, and tell him that, if he would state it, they would do all they could to assist him in proving it, and that, if he wanted evidence, they would adjourn the case and get evidence. his ideal was that the magistrate and the police should assist a man to prove his innocence, and that any sort of reasonable defence should be followed up at the public expense. the letter of the act, however, only gives the poor prisoner a solicitor and counsel and a copy of the depositions. no doubt the best is done for him that can be under these conditions, but it is not the same quality of legal defence that a rich prisoner can obtain for money. naturally, counsel who take these cases are not men of the greatest experience, and the defending of prisoners is a difficult branch of the act of advocacy. a story is told of a scotch prisoner, who had economically pretended he was without means in order to save counsel's fees, calling out in agony as he heard his defender addressing the jury in a very unconvincing manner: "young mon, if ye'll sit doon at once i'll give ye a feeve poun' note." although the act is not everything it might be, yet, undoubtedly, it is a move in the right direction and capable, under sympathetic administration, of doing much good. the criminal appeal act of has proved itself of such value already that it becomes the more amazing to read of the difficulty experienced in getting it on the statute book. all manner of legal interests were banded together against it. one of the two learned king's counsel who moved its rejection in the house of commons solemnly declared that the cost of taking shorthand notes and the expense of bringing a prisoner to london from the north of england appalled him and, in his view, "the machinery of the bill must inevitably break down ... it was absolutely unworkable." the second uttered mournful prophecies of ruin: "to substitute," he said, "this most costly machinery for the present system would deprive our criminal courts of their principal glory in the deep sense of care, caution, and responsibility which was pervading the atmosphere of every criminal court in the country at the present time." many people seemed to think that juries knowing there was an appeal would take less pains and care in their duties. but a jury in a criminal case is a body of citizens called together on a special and solemn occasion to do a serious duty and the fact of appeal or no appeal would have little effect on their conduct. it was the slackness of some of the judges rather than the possible carelessness of juries that wanted looking to, especially in courts of country quarter sessions where the shorthand writer and the court of criminal appeal were bound to exercise a good influence. nothing tends to good judicial work more certainly than publicity, a shorthand note, and a strong court of appeal easily available. although the criminal law has in the main been fairly administered and equally enforced against rich and poor there are certain classes of laws which have often, no doubt from worthy motives, been used as engines of oppression against the poor. of these the blasphemy laws are a standing example. dr. johnson tells us that: "laws are formed by the manners and exigencies of particular times and it is but accidental that they last longer than their causes." this is not altogether true. the fact is we have no summary machinery for removing decayed and obsolete laws from the statute book. we want a legal lethal chamber for these old die-hards, these laws against sabbath breaking and blasphemy and other old world wickednesses. a rich man may break as many sabbaths and blaspheme at his will but he is never prosecuted for it. in the days of that great and good reformer, charles bradlaugh, the blasphemy laws were made use of to stifle the poor in the expression of their opinions in a very shameless way. only last year a man was imprisoned under them in circumstances which gave rise to a good deal of uneasiness. he was no doubt an ill-mannered and unpleasant person, but ill manners and unpleasantness are not crimes, and to make use of these old blasphemy laws, to lock up the poor blasphemer only, is one of those things that does extensive harm by giving the blasphemer new fuel for his blasphemy, not only against the sacred things he does not appreciate, but also against the law which he finds ready to do injustice for the protection of these holy mysteries. this again, like many of the things which we may reasonably complain about in what is, as the world goes, a humane criminal law, is one of the matters handed down by our forefathers which we have not had time to set right. in the old days unitarians and others were burned alive. fuller in his church history says: it was found that "such burning of heretics much startled common people, pitying all in pain and prone to asperse justice itself with cruelty because of the novelty and hideousness of this punishment.... wherefore king james politickly preferred that heretics hereafter, though condemned, should silently and privately waste themselves in prison." and that is what all heretics ought to do to-day if the law were equally administered, but as a matter of fact these laws are only put in force against poor, noisy people who preach their doctrines in the market place, and are a dead letter against those who preach the same doctrines on hand-made paper bound in morocco. i can quite believe that a bye-law to hinder one man saying coarse and ill-mannered things about another man's religion in open spaces might be a reasonable police proposition; but there must be free trade in these things and the established church must not have a preference. moreover, such a law must not be extended to pulpits or printing presses or much interesting theological polemics would be lost to us. for the blasphemy laws in the twentieth century, protecting only one form of religion and set in motion only against the poor, nothing can be said. foul language and obscenity can and are punishable in other ways, and the cause of religion is poorly served by being protected by laws which are only set in motion when the well-to-do are annoyed by the vulgarity and ill-manners of the poor. there is no gainsaying that once in the dock all men are equal or very nearly so, but one may harbour a suspicion whether all men have equal opportunities of getting there. theoretically, the dock, like the bench and the cabinet and all other british institutions, is approached by an ever open door; but in practice more goats wander through the opening than sheep. yet your sheep is a born trespasser. there are some who believe that his immunity from punishment is due to the wool on his back. i doubt if this is altogether true. crimes of violence and brutality are naturally the crimes of the less fortunate of mankind, and your sheep is more peaceably disposed than your goat. but when we come to the more modern crime of swindling we find that the criminal law is not very successful in punishing the fraudulent well-to-do. fraud is a more complicated offence than larceny, and defrauders sometimes get the better of the law. cheating is not always a crime, and successful cheating is a question of better education. that is why the rich so often keep out of the dock. the law is somewhat old and decrepit, and the modern well-to-do swindler is very much up to date. therefore i fear it is as true to-day as it was in the days of lord chief justice coke, to say that the law "maketh a net to catch little birds and letteth the great ones go." if you cast your eye down the police news you will many times come upon the case of a low-down man or woman who goes round collecting for a mission that does not exist, thereby cheating the well-disposed of a few pounds or shillings. it is quite right they should be run in and sent to prison. they are pests stealing money that would otherwise relieve real distress. but if they had had a little more money, and hired a house in some remote place, and kept half-a-dozen real orphans there, and called it the st. anonymous orphanage, they might have collected as many thousands a year as they liked for their excellent charity, and no one would have worried them by asking how the orphans were looked after, nor would anyone have wanted to know how much was spent on the orphanage and how much on the founder and his family, and their houses and carriages and furniture and upkeep. the poor orphan has many uses in the world. one of them is to enable the swindler to found orphanages and make his living thereby. at first blush the crime seems the same as that of the house-to-house cadger who gets six months, but note that the uneducated man has told a lie and made a false pretence of an existing fact. the good founder of st. anonymous's never did that. he had an orphanage with real orphans in it. true, there were not very many of them, and the orphanage was rather a stuffy, insanitary sort of place, though photographed on end it looks imposing enough. and that is the _mot juste_, as the french have it; that is what the orphanage was, and what the good founder was--imposing. if you tell no actual fibs the law does not mind you imposing as much as you like. you may transfer the savings of the working class into your pockets by promises of the wildest character and schemes of the silliest and most romantic sort, and if you do it successfully enough the nearest you will ever get to the dock will be a seat on the borough bench, from which altitude you may sentence the poor, mean criminal who never had any capital, and had no one to advise him as to the law of false pretences. this is not a fancy picture. there was at least one such a magistrate on the bench once, and for aught i know there may be some j.p.'s to-day whose wealth has been made by stealing the savings of the working classes within the law. certainly in this country we have been free from the subordination of the criminal courts to the power of gold that is said to exist in other civilised places. any preferential treatment that exists is of a class character--snobbish if you will, but not corrupt. as an irish barrister said to me at liverpool--he was a great home ruler with a grand hatred of england and a real affection for many englishmen: "my dear parry, you'll never convince me that the government ever meant to hang mrs. maybrick. they're a cowardly lot of snobs, and anyhow they couldn't hang a woman they might have to meet out at dinner afterwards." and there is undoubtedly running through all our english institutions, even the administration of the criminal law, a certain amount of class snobbery which it would be better should be eliminated. judges and magistrates are, of course, only human. the wrong doing of a man or woman of our own class naturally appeals to our bump of forgiveness more readily than that of a slum dweller whose temptations and environment we know nothing about. thus we can remember cases where lady shoplifters were discovered by eminent physicians to be suffering from some extraordinary form of neurasthenia--not insanity, of course--but one of those nervous breakdowns that made an acquittal and a rest cure in a nursing home the only appropriate course. magistrates seem to grasp the medical facts about these well-to-do unfortunates almost too readily; but had it been a drunken woman snatching a pair of boots from a shop-nail in the street no eminent physician would have diagnosed her peculiar form of neurosis. even if her husband had tendered evidence that of late the poor lady had been strange in her manner, he would scarcely have been listened to with much sorrowful attention. the good magistrate would have felt bound in the interests of the poor tradesman to make an example of this criminal. such cases are not cases for acquittal, and the rest cure is generally three months hard. there are certainly too many cases where the wealth and position of a prisoner leads to favoured treatment in the criminal courts. i am glad to note that these are always pilloried in the press and publicity is given to them, and in a way nothing could be better because it is the open door that has done so much to keep our courts free from the taint of any suspicion of real corruption. i firmly believe that when these cases do occur they are generally the outcome of a spirit of humanity on the part of the presiding judge coupled to a certain extent by a class feeling of tenderness on account of the terrible downfall of a man or woman in his own social position. such cases, too, are rare. no special note is taken of any case where the law takes its ordinary course and the rich criminal is treated in the same way as his poorer brother. these are, of course, the great majority, and there are also many cases i am glad to know where leniency and mercy is extended to the poor criminal and he is helped by societies and personal aid to regain his position among honest men. but with all this the poor man can point to too many instances where rich hooligans running amok with a motor car in regent street or assaulting the police on a racecourse are let off with a fine. here is a curious case from the london sessions that is bound to cause a lot of talk in the mean streets. a fashionably dressed young man was indicted in an admittedly false name, and was allowed to use it for the purpose of the proceedings, and pleaded guilty. he had obtained a sable stole, value £ , from a costumier in shaftesbury avenue by false pretences. he had opened an account at oxford. he received a cheque book and then withdrew his money and closed the account. he used to obtain goods which he paid for with cheques on the oxford bank, and cheques to the amount of £ , _s._ _d._ had been returned marked "no account." a detective said he was a young man leading a fast life. the city police had a warrant for him for obtaining a ring value £ and a gold watch £ . these articles it is true were returned. the oxford police had a warrant out for him and when arrested he was attempting to obtain a valuable fur article in dover street. his counsel urged that his parents were people of respectability and integrity who had suffered losses, and the young gentleman was trying to keep things going in the same style he had been accustomed to, and had come under bad influences. that is the whole story, and the report ends, "the defendant was bound over, the magistrate remarking that there was no need to cause his relatives to suffer by mentioning his name." how many poor men and women whose children have been taken away from them for long terms of years to a reformatory or sent to gaol for months with hard labour, to the knowledge of all their neighbours, will read that report, and what will they think and say of the justice of our criminal law? one pities the parents and relatives of this particular young criminal waster as one pities the parents of all children and the children of all parents when one or the other bring disgrace or ignominy on the home--but why is this one particularly undesirable swindler to be allowed the privilege of an alias in an indictment, and why is his name alone among all the prisoners arraigned at the sessions to be kept from the world? and how hard it will be on some youngster of like criminal tendencies when he comes before a court where harsher methods prevail, and he finds that not only is his name brutally noised abroad, but offences of this character are deemed worthy of imprisonment. one would not wish to say a word against leniency to the young however much it may savour of class-tenderness, but the concealment of a criminal's name on his trial because his parents are well-to-do and respectable, is just one of those things that the poor people treasure up and quote as an instance of the law's unfairness. at a time when every effort should be made to impress on the poor the impartiality of the law little cases of this kind, arising no doubt from motives of kindness and humanity, are exaggerated and quoted as typical of our criminal administration--which assuredly they are not. in cases where the whole of the resources of the state are against the prisoner fair play demands that everything that can be done for him without detriment to the demands of justice should be done. in a case of murder which created a great sensation this year, the whole evidence turned on identity. several witnesses came to the police and said they had seen the victim, a child, in company of the prisoner. other witnesses had stated to the police that they had seen the victim in company with a woman. during the examination of the police inspector in charge of the case he was asked by the defence for these statements, the magistrate expressed his opinion that they should be shown to the solicitor for the defence, but the counsel for the crown, a gentleman of very wide experience, "suggested that the proper thing for the solicitor for the defence to do would be to go and see the people." i do not for a moment say that the learned counsel was inaccurate in his statement of a legal proposition. it may be that such is the law; but if it is what does it mean? the police have honest statements of citizens in their hands suggesting that a man has committed murder, they have equally honest statements from other witnesses that the murder has been committed by a woman. however mistaken they may believe the latter statements to be, surely fair play demands that the prisoner should have access to these statements for what they are worth. after all he is at present to be deemed an innocent man, he is not even committed for trial, and he is a citizen with as much right to the protection of the police as any other. if they have statements going to prove his innocence he ought to have access to them and be told who has made them so that he and his solicitor can see how far they help to prove his case. but no, that is not the official view. counsel for the crown no doubt states it correctly. the proper thing is for the solicitor for the defence to go about at the expense of the poor man he is defending and find these people out and take statements afresh. it is a denial of justice, the man has not the money to do it, his solicitor is not a charitable institution, and even if he were he probably has not money and staff for such work. in this particular case the whole of the police had scoured london for evidence to clear up the mystery. surely when a citizen was charged with the offence public interest demands that the matter that has been discovered that goes to prove innocence should be as readily available as matter that goes to prove guilt. the present practice is to my mind a tradition, handed down from the bad old days, that needs to be swept away. we ought to free our criminal law from any shred of suggestion that the state is out to obtain a conviction rather than an acquittal. the state is only interested in the truth and justice of the verdict, and a true verdict obtained by methods of injustice is a crime against the community. much might be said on the inequality of punishments. the question of the advisability of corporal punishment is one upon which people hold strong and conflicting opinions. i am not a sentimentalist on this subject. i am told by some quite sane and scientific thinkers that for men, women and children of the hooligan class who have a mania for violence and destruction it is probably the most appropriate form of punishment. its good qualities are that it is cheap; it is soon over, but irksome whilst it lasts; and it is said to appeal to the homeopathic instincts of the hooligan class who recognise the justice of meeting violence by violence. against these positive merits it is very unequal in its incidence; one victim will suffer more than others over the same punishment; and it is brutalising, in some measure, to the flogger and floggee. too much may be made of this last argument, for nothing can be more brutalising and deadening to all hopeful and better instincts than long terms of imprisonment. on the whole, my instinct is against flogging, because i am an optimist and believe that though it has had its uses in the past as an educative influence we have come to a state of civilisation when we should abolish if possible all violent or cruel punishments. there was a lot perhaps to be said for thumbscrews in their day, but that day is admittedly over. my grumble about the cat-of-nine-tails and the birch is not so much that the law should put them in the cupboard once and for ever, but that if they are to be used at all, their lashes should, like god's good rain, descend on rich and poor alike. take the crimes for which flogging is permissible punishment to-day. for adults there is garrotting, offences under the criminal law amendment act, procuring, etc., and being an incorrigible rogue. for lads under sixteen, stealing and malicious damage. now the first objection to these punishments is that whether flogging is or is not to be administered depends altogether on the taste and fancy of the presiding judge. some think it is an advisable form of punishment; others view it with disfavour. this element of human lottery in the administration of the law should surely be kept under as far as possible. out of a hundred and forty-five criminals convicted of robbery only three were flogged. an intending robber therefore who studies judicial "form" in the statistics will see that it is about fifty to one against the cat, and if he is the one unfortunate surely he has a distinct grievance against the forty-nine lucky blackguards who escape. when only three criminals receive this punishment in one year it is worth while considering whether it should be continued, or, if it is to be continued, whether it should not be extended to crimes against women and children and other nameless horrors. highway robbers to-day are all of the lowest and the poorest, but in the other category of crime there are sometimes men of means who find their way into the dock. if it ever comes to be recognised, as butler in his beautifully prophetic account of the land of erewhon would have us believe, that crime is a disease and should be treated by a family straightener, as we now call in the doctor, then all doubts as to corporal punishment will disappear. the erewhonians when they had lapsed from the path of honesty took, under their doctor's advice, a flogging once a week and a diet of bread and water for three months on end with the same heroism and resignation with which we undergo a cure at harrogate after a london season. once recognise that the birch rod is a cure for dishonesty, violence, and malicious injury to property, then all sensible men and women afflicted with these tendencies would welcome the cure and visit their straightener as they now visit their dentist. but at present we are far from the realisation of these sane, clear-sighted dreams. flogging, as the law uses it as a punishment to-day, is not used, i fear, merely as a remedy or even a deterrent but rather by way of revenge. it is almost wholly used against the very poor and degraded. even under the white slave act, i cannot remember any case in which it has been used against a well-to-do man. in any case it is only available against the actual procurer and not against the landlords, ground landlords, restaurant proprietors, and dressmakers, who knowingly share in the woman's earnings and live on them. flogging may, or may not, be an advisable form of punishment, but if it is to be used, let it be administered automatically and without fear or favour to all beasts and blackmailers and hooligans, be they rich or poor. at present the chances of a rich man being flogged for his wickedness on earth are about the same as those of the camel with an ambition to loop the needle. chapter xi the police court _squeezum._ the laws are turnpikes, only made to stop people who walk on foot and not to interrupt those who drive through them in their coaches. fielding: "the coffee-house politician." act ii., scene ii. when fielding was made a magistrate for the county of middlesex in the popular notion of the office was expressed in the nickname, "the trading justice." he was paid by fees and had a direct interest in the prosperity of crime. the fees, moreover, were very small, and it was a recognised thing that he should make his office a lucrative one by methods exemplified by mr. justice squeezum in fielding's farce. although the great writer fulfilled the duties of his office with honour, fidelity, and zeal, he has left us in no doubt about the immorality and ignorance of many of his fellow justices. it is a relief to turn from the justice room in bow street in the eighteenth century with its rogues and vagabonds on their way to the whipping posts of the bridewell, and its highwaymen and thieves starting for tyburn by way of newgate, and to look on the comparatively civilised picture of a metropolitan police court of to-day. a century and a half has worked wonderful reforms for us in the world of police and police courts, but one cannot honestly say that nothing remains to be done. direct bribery is no doubt abolished, justice is fearlessly administered, but there are still traditional methods of imposing fines and imprisonment which cause the poor to think that carriage folk go more easily along the turnpikes of the law than those humble ones who travel perforce on foot. i am not writing of the police court as the antechamber of the old bailey. in relation to the grave crimes against society we may fairly boast that rich and poor are treated much alike. but the police court in matters within its own jurisdiction is a machine for teaching better manners to the poor. it is a somewhat harsh machine, perhaps, but in the main just and necessary at the present state of our evolution. when folk are naughty and violent and ill-mannered and ultra-selfish, and become a nuisance to their neighbours, the police, if they are poor, take them in hand, but if they are rich they are dealt with differently. unless they are so extravagantly and absurdly naughty as to become a public as opposed to a private nuisance, there is no necessity for the police to tackle the rich. when two "lydies" go for each other in the gutters of whitechapel the police step in, but when the same thing happens in mayfair, society--with a big s--maintains its own discipline. the reason why rich folk are not so outwardly naughty as poor folk is very much a matter of education and environment. as lord haldane in his valuable speech in america explained to us, there is a "system of habitual or customary conduct, ethical rather than legal, which embraces all those obligations of the citizen which it is 'bad form' or 'not the thing' to disregard." thus in the days of sir anthony absolute it was "bad form" not to get drunk after dinner, and it was "not the thing" to refuse to fight a duel. these laws of conduct were not enforceable before magistrates, but they were laws all the same, and rich people dared not disobey them for fear of being "cut" by society. and as the years roll on better education, better housing, better wages, and less of that repressive sabbatarianism that drives the poorer youngsters into natural mischief will make the police court less and less necessary as a school of manners. the conscience and good manners of all classes attain a higher ideal every day, and the only reason the rich arrive at a better standard of outward manners than the generality of the poor is that they have been caught young and made to practise at it for generations. it is not a matter entitling them to praise, but we are out to set down and discuss facts, and undoubtedly it is so. for instance, you would expect an eton boy to play better cricket than a st. andrews caddie, but the caddie would probably beat the other's head off at golf. it is environment that does it, and the lesson to be learned is to improve in every way the material surroundings of the poor to the utmost of our ability. meanwhile the police court seems to me as necessary a part of our equipment as a sewage works or an ashpit. crime is not only a matter of heredity and education, it is also a question of geography. this geographical distribution of crime is an intensely interesting subject. you will find that cardigan, for instance, is the whitest county in england and wales for crimes of all kind, whether against property, morals, or of a violent character. glamorgan, on the other hand, is only beaten by monmouth in records of crimes against property; in crimes of violence glamorgan is easily first; in crimes against morality glamorgan again is only beaten by dorset, berks, lincoln and huntingdon, the latter taking the - record very comfortably. monmouth, happily, in this latter class of crime is in a far better case than her neighbour. if you can trace the history and causes of different crimes in different districts i believe you may hope to sterilise a county of certain crimes by moral sanitation and stamp them out just as we have rid counties of typhus and the plague. in dealing with uncivilised crimes of mischief and destruction we should always bear in mind that the poor who do these acts are very often only human beings who have not been cultivated up to modern standards. some crimes are traditional in certain districts, and the imitative faculty being strong in criminals, heredity and mimicry work together to cause a certain historicity in crime. magistrates and others do not sufficiently study this. patriotic county officials loudly deny what everyone who reads the judicial statistics knows to be true. in discussing the edalji case i pointed out that to anyone who studied the history of crime it was far more likely that such crime would be committed by a native of the county than by a gentleman of parsee descent. this seemed to annoy some ardent staffordshire folk, but there is no reason why it should. killing and maiming the cattle of others is a very ancient pursuit and has only recently been regarded as criminal. the wicked man in the bible was often threatened with the destruction of his cattle. no doubt the righteous man was encouraged thereby to take upon himself the duty of avenging his wrongs by destroying his wicked neighbour's cattle, and the wicked neighbour, believing himself to be the righteous one, retaliated in kind. certain it is that in border countries we always read of cattle raiding and killing and maiming, and perhaps one reason why staffordshire is old fashioned in the cattle-maiming business is that it was a border country, and in the good old days the lords and squires raided cattle and destroyed their neighbour's farms and boundaries, and these antiquated habits remain with some as natural instincts of revenge. in early days such acts were not considered criminal. the only malicious injury to property known to the english common law as a crime was arson. it was not until the time of henry viii. ( hen. viii., c. ) that it was discovered that there were "divers sundry malicious and curious persons, being men of evil and perverse disposition and seduced by the instigation of the devil, who, to damnify the king's true subjects went about burning frames of timber ready to be set up and edified for houses," and broke down dams and moats or cut away lead pipes, or barked apple trees, or cut out beasts' tongues, which seems a very ancient and horrible form of maiming cattle. the penalty for these latter offences was the inadequate fine of ten pounds. in came the black act which made it felony without benefit of clergy to "unlawfully or maliciously kill, maim, or wound any cattle." in a malicious damage act ( & vict. c. ) was passed, codifying all the law relating to such offences, and that is the act under which mr. edalji was indicted. i have worked out the geographical statistics of cattle maiming in england for forty years, from to , and they are extremely interesting. in the first place it is well to know that the total number of such crimes is rapidly decreasing. in five years, from there were over a hundred cases; in five years prior to there were less than fifty. the counties, which total more than twenty cases each, are york, sussex, middlesex, lincoln, lancashire and staffordshire. somerset and gloucester have nineteen cases, but gloucester has only one case since and somerset only six cases since . surrey has only eleven cases, and only five occur since . anglesey and westmoreland have only one such charge each during the whole forty years. in the case of staffordshire, in the twenty-two cases taking place from to fifteen cases had taken place since , and there is never a clear five years in the period without a case. in , when the wyrley outrages took place, it seems to me that a county with this history would have been sensible to look at home for the criminal. in counties such as somerset and surrey, where the offence seemed then to be dying out, the same considerations would not apply. whereas in westmoreland or anglesey the expectation would be that the crime was committed by a stranger. i do not think it would be wise to press these speculations too far, but at the same time i think magistrates and police might make greater use of the wonderful statistics that are collected and published by the state at such great expense and learn useful lessons from them in their daily business. whilst we condemn the horrible savagery of such crimes it is only fair to remember that the law does not punish them for their cruelty, but only for their injury to property. prevention of cruelty to animals is a far more modern branch of law, the beginning of which dates from . when lord erskine moved his bill against cruelty to animals in , so absurdly sentimental did it seem to the assembled peers that they drowned his speech in a chorus of cat-calls and cock-crowing. it is well to remember when measuring punishment in the police courts that there are individuals and classes existing to-day that are scarcely more civilised than the lords and barons of a hundred years ago. the feudal lords and their henchmen did many things in the good old days in their quarrels with their neighbours which to-day would bring them before the justices. they wounded with intent, they did grievous bodily harm to anyone who annoyed them, and they did as much malicious damage to property as seemed in their own eyes a fair set off for insults had and received. among a certain small degraded class in our own country these traditional pleasantries of the country-side are not fully recognised to be crimes. there are a set of men among whom it is not "bad form" to commit these acts. this form of atavism requires not only pity but further and better repression at the hands of capable police. as long, therefore, as we have these hereditary tendencies to crimes of violence and selfishness, the police court seems to me to meet a felt want. i can imagine a better world without any police court, just as i can imagine this world with a better police court. but i should like to see imprisonment kept entirely for evil-doers, and that side of the police court work which consists in rate collecting and semi-civil proceedings transferred elsewhere. at present many are sent to gaol in the police court for the crime of poverty. in the cases of non-payment of rates or of orders on parents to pay subscriptions to industrial homes it seems a very bad policy to send a poor man to prison. it takes a man from work, it does not produce money, and it throws a family into the workhouse. in these cases there is no pretence of proving a man's means and sending him to gaol because he can pay and won't. no such evidence is necessary. the man goes to prison because he is poor and has not the money to pay. if the state thinks fit to put a man's child in a reformatory, one would think it might stand the expense of it, without ruining the home by imprisoning the father because he cannot subscribe towards his keep. with regard to orders for maintaining a separated wife, or affiliation orders, everyone would have less sympathy with the man who is sent to prison for not paying these. but if a man has not the money he does not make any in prison, and what these poor women want is regular weekly money. these are special cases in which i think power to attach a man's wages up to a certain percentage would be a just and reasonable proposition. such a law might be unpopular with mankind, but it seems fair to the women. whether it would tend to increase or decrease maintenance and bastardy orders i have not the least idea. "five shillings and costs or seven days." this familiar phrase, as count smorltork says, "surprises by himself" the whole philosophy of police courts. nothing is more marked in the treatment of rich and poor in the police court than the unfair incidence of fines. take, for instance, the common case of a motor-car driver being fined forty shillings and costs for exceeding the speed limit and driving to the danger of mankind. if his master is a cabinet minister, say, he writes a civil letter to the clerk to the magistrates expressing his regret and enclosing the needful, which is just two five-thousandths of his official income. but supposing he is a taxi-cab driver who owns his cab, or is buying it on the hire system, as many do. he, too, is fined forty shillings and costs, and as he earns, let us say, forty shillings a week, he has to pay one fifty-second of his income. if he cannot raise the money his home is distrained on, or there is the option of imprisonment. that kind of option never worries the cabinet minister or the chauffeur thereof. in the old tithe days the parson took his tenth from rich and poor alike, and was no respecter of persons; all he wanted was one-tenth of your income in cash. as between cabinet minister and cabman the relation of fine should be as two pounds to ninepence--that is to say, if the law in the police courts desires to treat rich and poor alike. there is no difficulty about doing this. all that is wanted is to enact in your statute that the fine should "not exceed one-fiftieth or one one-thousandth of a man's income." then all would be fined off the same mark. at present the poor man is the scratch man, and the greater the wealth the longer the handicap. as to costs, they should be wholly abolished. they are not only an odious tax on the poor, but they give the officials of the court an unholy incentive to make the court a paying concern, and, what is worse, give every clerk and officer in the police court a direct pecuniary interest in convictions. as things stand to-day a council of city men are not likely to advance salaries where their police court is losing money. a godly and righteous police court should glory in losing money year by year. and whilst i recognise that at the head of each police court there should be a stipendiary to deal with the more important cases, and always to be within call when there are cases to try in which the local magistrates have a class interest, yet i have no desire to abolish dogberry, nor do i take any pleasure in reading that he has written himself down an ass. in our chief cities there are now excellent stipendiaries and magistrates of all classes, including representatives of working men, and all can testify how--taking the police court system as it stands--it is worked fairly and carefully and to the advantage of all. but these places are far ahead of the county towns and districts where the squire and parson reign supreme, and the clerk to the justices is their own faithful attorney. i believe thoroughly that these men do their best, but it is quite impossible that they can take a normal view of such horrible crimes as the rape of a pheasant's egg or the snaring of a hare. it is from the beautiful little corners of the lovely english country that the bitter cry of injustice in the police courts makes itself heard from time to time in the public press. why should not every hamlet have its village plowden to brighten life on the country side? there we see, let us hope, the last of a decaying and rotten system--justice administered by a class unlearned in law, and unlearned in a far more important branch of their business--the knowledge of the works and days and temptations of the fellow sinners whose judges they have elected themselves to be. in the remote country places more than anywhere is the stipendiary a necessity. meanwhile, why should not direct representatives of the agricultural labourer be placed upon the bench if we are not to abolish dogberry altogether? while these words are being written, an effort is being made with a criminal administration bill to do away with some of the abuses of the police court. the imprisonment of people for non-payment of fines is really imprisonment for poverty, and the scandal of it is at last officially recognised and the necessity of reform admitted. that, at all events, is to the good, though it is to be hoped that if the bill at present put forward is to pass it will be widely extended and simplified. it is quite a good thing to enact that it shall be obligatory upon magistrates to grant time for the payment of fines, but seeing that the magistrates have always had this power and never used it to any useful extent it would be well that there should be less discretion about the matter. law for lay magistrates should be automatic and fool-proof. when you enact that a magistrate is obliged to allow time for payment of fines, "unless the court for any other special reason expressly directs that no time shall be allowed," you are surely inviting the average justice to supply himself with special reasons why he should not carry out a law which you know by his past history he dislikes. it must not be forgotten that in manchester, although the fees legally allowed for a summons are twelve shillings, the practice has been for fees not to exceed the fine. imprisonment for less than five days--which in the future is not to be permitted--has for a long time not been allowed by the practice of the manchester justices. where justices desire to be lenient and enforce the law temperately they can do so to-day, and therefore it is clearly no use in a new statute to leave a discretion to those who will certainly abide by old and evil customs unless they are forced to do otherwise. the statistics of the police courts show that in one year , citizens were imprisoned in default of the payment of a fine and , imprisoned without the option. the number of persons sentenced to pay fines is no less than , . every year new statutes are passed making new offences which can be committed with practical impunity by those whose purses are long enough. under the heading betting and gaming, , persons were fined and only went to prison. under the heading motor cars, , were fined and only went to prison in default; under the heading sunday trading, , were fined and only went to prison by default. these offences are generally committed by persons with some money; but where the parties are poor what a terrible difference in their punishment. the mere giving of time to pay fines will not abolish this injustice unless the fines are made, as has been suggested, in some ratio proportionate to a man's income. if it were enacted that a fine should not exceed a day's wage earned by the prisoner, that would be a method of doing away with the burden of useless imprisonment that has to be borne by the poor. it is no use enacting that the court in fining an offender shall take into consideration the means of the offender. i make no doubt that this is done already to a large extent by stipendiaries and the more enlightened magistrates. what is wanted is an actual printed tariff of fines fairly proportioned to the means of the offender, beyond which the magistrates may not go. measures that depend on the sympathetic working by the members of the bench will be in many districts a dead letter, and inasmuch as the folk who go to prison in these cases are always poor people, very little will be known of their trouble except by those few persons who study blue books and statistics. this habit of the magistracy to ignore the good intentions of parliament and the home office is in nothing more marked than in the refusal of many country benches to give bail to poor people charged with offences that have to be tried at sessions or assizes. many judges have called the grand juries' attention to the large number of prisoners who are left in prison awaiting trial, some of whom are ultimately acquitted. but this is one of the matters where magistrates must of necessity have discretion, and although they receive home office circulars calling attention to their duties in the matter of bail they prefer to go their own wrong-headed way and unnecessarily keep a large number of poor persons in prison who might quite safely be allowed to remain out on bail. it is curious how history repeats itself and how a lay magistracy, as a type, always tends to act without sympathy or consideration for the poor. a hundred years ago the yorkshire magistrates came to the conclusion that it was a most improper thing that poor people committed for trial to the house of correction should be allowed to idle their time away at the expense of the county, so they actually required them to work for their living, and as the treadmill was the only apparatus of a commercial character in the gaol the poor untried prisoner was put to walking round a wheel in company of his convicted brother. the way in which the matter was put by mr. john headlam, m.a., chairman of the quarter sessions for the north riding of the county of york, is a perfect specimen of the true dogberry temperament: "with respect to those sentenced to labour as a punishment, i apprehend, there is no difference of opinion. all are agreed that it is a great defect in any prison where such convicts are unemployed. but as to all other prisoners, whether debtors, persons committed for trial, or convicts not sentenced to hard labour, if they have no means of subsisting themselves, and must, if discharged, either labour for their livelihood or apply for parochial relief; it seems unfair to society at large, and especially to those who maintain themselves by honest industry, that those who, by offending the laws, have subjected themselves to imprisonment, should be lodged and clothed and fed, without being called upon for the same exertions which others have to use to obtain such advantages." of course the whole question is begged when an untried prisoner is called an offender against the laws. the headlam view of him always has been, and is to-day, that the mere fact that a policeman has arrested him is proof that he is an offender; this for all time has been justices' law, but it is doubtful whether the old doctrine that a man is to be deemed innocent until found guilty by a jury of his peers is not still sound law and ought not to be more fully recognised by the lay magistrates. of course the particular wrong that mr. headlam was contending for has long been abolished, not indeed without much argument and trouble, but we still punish an untried man by imprisoning him before trial, and in very many cases this is wholly unnecessary. the idea of keeping a man in prison is that he should be forthcoming on the day of trial. in some serious cases it is obviously necessary to keep a man in custody, but in many small cases if a cheap bail was fixed there would be no difficulty in finding the sureties and the prisoner could be outside arranging for his defence and earning money for the support of his family until the day of the trial. of people acquitted at assize courts only were allowed bail, so that there is a clear admission in the official figures of three hundred innocent persons--or persons not provably guilty--remaining in prison because the justices will not carry out the home office suggestions as to bail. remember too that in some remote places there are very few assizes and eighteen of these unhappy persons remained over three months in prison awaiting trial. at quarter sessions the figures are even more remarkable. of , prisoners acquitted only had been granted bail. here you have a large number of innocent men and women kept in gaol charged with offences that are not of the most serious character, and this is done not because in this peculiar instance the law itself is harsh--because the law permits bail and the government office calls on the magistrates to make use of the law--but because the law is administered by well-meaning but incompetent men who have a fixed delusion, handed down to them from their forbears of hundreds of years ago, that a man arrested for a crime by the police and awaiting trial is, to use mr. headlam's phrase, "an offender against the laws." where there are no stipendiary magistrates it would not be a bad plan to give any prisoner a right to appeal on refusal of bail to a judge of the county court who lives within the district and is of necessity a magistrate though he seldom has much time to sit at petty sessions. before we leave the police court i should like to draw attention to a well-founded complaint against police methods that the home office might certainly take into their consideration when they are reforming the administration of the criminal law. i refer to the practice of identification which has come so prominently before public notice in recent criminal trials. i never met a prisoner who felt that it was fairly done. for myself, i have the firmest belief that the police endeavour as a rule to do what is right and straight, but after all we must not lose sight of the fact that the police are there to clear up the crime and to run in somebody--the real criminal of course for choice--and it seems hardly right to put them at this very critical moment into the position of a judicial authority deciding the most important point for or against the man they have arrested and believe to be guilty. i have always wondered what legal right a policeman has to put you in a row with a lot of other men and bring people to look at you. suppose a prisoner refused to undergo the ordeal and the policeman used force to compel him, could the prisoner recover damages for assault. these are recondite, and in a sense absurd points; but they do, i think, help one to see how wrong the present system is. at the ceremony of identification it is obviously necessary that there should be a presiding magistrate to see fair play and to take a record of what happened. it is really a part of the trial and a most important part of the trial. that a witness should identify a prisoner in a police yard in the absence of a judicial authority is clearly an unjust thing. once he--or more especially she--has done so, the further swearing to the prisoner when he is in the dock is nothing. what the magistrate ought to see is the demeanour of the identifier when he first recognises the prisoner and especially ought a justice to be present to see that there is no suspicion of unfairness in the methods employed by the police. we have had so many tragedies brought about by so-called identification, that it is more than time that the business of it was taken out of the hands of the police and made an integral part of the trial before the magistrate to which it in truth belongs. these reforms will not, i think, come about until we have stipendiary magistrates on the county benches, but though i wish to see this i do not want the old office of justice of the peace to be abolished. there is, and rightly ought to be, a keen desire among laymen to attain to this position, and it is an office of much dignity and respect and one in which a good man under sound legal advice can do worthy public service. i have been a local justice of the peace for many years and can testify to the number of occasions upon which a magistrate residing in his district is called upon for small services that would cost the applicant time and money if there was no available magistrate. a great many lay benches with a clerk of sound learning and legal education administer excellent justice throughout the country. but there are classes of cases connected with property that would be better tried by a stipendiary unconnected with county society. i have a passion for old-world things, and grieve over the disappearance of the parish constables, the head boroughs, the tithing-men, the aletasters, the beadles, and the reeves. i do not wish to abolish the justice of the peace. i only wish to put him in his proper place. of course, if he cannot be happy there, then i am afraid he will have to go. chapter xii landlord and tenant at number seven there's nob'dy lives, they left it yesterday; th' bum-baylis coom an' marked their things, an' took 'em a' away. they hardly filled a donkey cart--aw know nowt wheer they went-- but they say th' chap spent his brass o' drink instead o' payin' th' rent. samuel laycock: "bowton's yard." in this branch of the law it cannot honestly be said that the legal position of the poor is very different from the legal position of the rich. given private ownership of land and the right of a landlord to distrain for rent in arrear, and seize and sell his tenant's goods to pay himself, it does not seem that the law or the way in which it is administered is better or worse for rich or poor. the law of distress is, as its name implies, a harsh and cruel remedy and the shadow of it hangs nearer and darker over the cottage porch than over the doors of the eligible mansion, but it is there in both places. to a weekly wage owner paying an exhausting rent out of a pitiful wage, the ever present right of his landlord to distrain, whilst it nerves him to make every effort to keep a clean rent book, must be one of the sad and depressing elements of daily life that the middle classes do not experience so directly. it is pleasant to record--what is in fact my experience--that whatever may have been true of the cruelty of landlords in other times and places the landlords of to-day owning cottage property are not a harsh race. they themselves, especially the poorer ones, have their own troubles. the rates have to be paid, the by-laws to be observed, the notices of the sanitary inspector to be obeyed, and perhaps the fact that they themselves have to ask for time to pay and to sue for leniency from corporations and other officials leads them to be tender with their own underlings. certain it is that in the putting in force of the right to evict a tenant the landlord is very long-suffering. this last step is not usually taken until the rent is many weeks, or often months, in arrear. even when an eviction order is granted, i have known many cases where a landlord renews the tenancy and collects the arrears at small instalments. eviction orders are very often asked for not in the landlord's own interest but in the community's. the necessity to do the sanitary requirements of public bodies is a constant source of eviction. the tenant having no neighbouring house to go to clings to the undesirable shelter he has got until the forces of the law turn him out in the interests of hygiene. another curious cause of eviction is a woman's tongue. a lady with what is technically known as "a tongue" will set all her neighbours by the ears; houses on each side of her domicile rapidly empty, and at length the whole street comes to the landlord demanding that she shall go or threatening to depart themselves. the lady with "the tongue" of our day was, and as far as i know still may be, known to the law as a common scold, and according to chief justice holt was punishable by ducking. mrs. foxby, of maidstone, was, if i remember, the last lady who was indicted at common law for this offence and sentenced to be ducked. she moved, in trinity term, , in arrest of judgment because they had called her in the indictment "_calumniatrix_" and not "_rixatrix_" and insisted on her motion, although chief justice holt in kindly warning reminded her that ducking in trinity term was pleasanter than ducking in michaelmas. as the court pointed out, mere scolding was not the offence, it was the constant repetition that was the nuisance. in the result, after a year's litigation the flaw in the indictment saved the maidstone lady a ducking in the medway. but though the common scold and the ducking stool no longer figure in the quarter sessions calendar--though it would rest with the court of criminal appeal to decide if they are yet entirely obsolete--the woman with a tongue, the "_rixatrix_," or lady brawler is undoubtedly still existent and has to be dealt with by the landlord of small property by county court eviction. what is called a possession summons is taken out, and in the hearing of it the lady always appears and protests vigorously against the treatment meted out to her, arguing that the street is in a conspiracy against her, and that she is the one quiet peaceful woman in the neighbourhood. any doubt as to the correctness of the judicial decision in making an eviction order is solved as soon as the order is made, when, self-restraint being no longer necessary, the full force of "the tongue" is turned upon the landlord, the judge who is in league with him, and the two stalwart members of the force who with some difficulty show the lady the door. next to dry rot and vermin, a tenant with "a tongue" is the greatest enemy of the landlord of mean streets. but what has long been recognised about the status of landlord and tenant, is that under present economic circumstances it is impossible for a wage-earner to obtain at the expenditure of a reasonable proportion of his income proper housing for himself and his wife and children. the duty of the state to the poor in this matter is gradually dawning on people's minds, they are waking up to the fact that it cannot be done solely by individual effort, and on this subject the law, i am glad to report, is beginning to make serious efforts to set its houses in order. at present legislation has taken upon itself three objects: ( ) the clearing of slum areas and rebuilding new dwellings, with powers of compulsory purchase granted to local bodies. ( ) the granting to corporations and councils power to close insanitary houses, and to make their owners repair them. ( ) the permission to local authorities to build houses for the working classes where there is an insufficiency. we are a slow moving race. we generally do our legislative reforms by a succession of statutes vigorously fought over and hacked about by gay party spirits whose nearest idea of patriotism is to queer the other fellow's pitch and spoil his budding statute by crimping amendments that he knows will make it unworkable. we have only gone a little way with the housing business as yet, and if the next statute on the matter could be put in the hands of a small committee of both parties to draft and bring before the house, perhaps we should get somewhat nearer finality. it is rather melancholy reading to pick up the latest pamphlet of the bookstall on the housing question and find much of the writer's ingenuity wasted in trying to prove that his party, and his only, has in the past made any effort to better the housing of the people, and that in the future there is only one honest capable scheme which is worthy of consideration. there is not much real help in these essays. their burden is always the same. recollect at the election time--"short's very well as far as he goes, but the real friend is codlin--not short." the truth is that neither party has done very much. the history of the matter is much as follows: writers of all parties and creeds in the early victorian days wrote eloquently of the slum dwellings of our great cities. some of deeper insight than the rest saw that all was not well, even with the rose-covered cottage of the country-side. it is only within our own lifetime that we have begun to learn that it is morally and economically wicked for a nation to own slums. this truth has not been taught us by the priests and politicians of our time, but by our men of letters. dickens knew all about it and prophesied in despair that we should have to wait for five hundred years for reform. you remember tom-all-alone's where jo lives: "it is a black, dilapidated street, avoided by all decent people; where the crazy houses were seized upon, when their decay was far advanced, by some bold vagrants who, after establishing their own possessions took to letting them out in lodgings. now these tumbling tenements contain by night a swarm of misery. as, on the ruined human wretch, vermin parasites appear, so, these ruined shelters have bred a crowd of foul existence that crawls in and out of gaps in walls and boards; and coils itself to sleep, in maggot numbers, where the rain drips in; and comes and goes, fetching and carrying fever, and sowing more evil in its every footprint than lord coodle, and sir thomas doodle, and the duke of foodle, and all the fine gentlemen in office, down to zoodle, shall set right in five hundred years--though born expressly to do it." maybe you could not find to-day an exact replica of tom-all-alone's; certainly we have swept away acres of them, but it is still worth while to read and remember such descriptions, if only to remind ourselves what the poor have to suffer if the law remains powerless and inert in the compulsory provision of decent housing. people grumble at state interference, but they forget what made it necessary. rampant individualism led to housing workmen in the tailor's shop, described by alton locke "a low lean-to room, stifling me with the combined odours of human breath and perspirations, stale beer, the sweet sickly smell of gin, and the sour and hardly less disgusting one of new cloth. on the floor, thick with dust and dirt, scraps of stuff and ends of threads, sat some dozen haggard, untidy, shoeless men, with a mingled look of care and recklessness that made me shudder. the windows were tight closed to keep out the cold winter air; and the condensed breath ran in streams down the panes, chequering the dreary outlook of chimney-tops and smoke." when we are wondering how far it is our right and duty to interfere between a man and his house property or whether it is incumbent upon the nation to take upon itself the burden of housing its people, it is useful to look on these pictures of england in the glorious days of queen victoria and albert the great and good. the problems were there then, but it was not the statesmen who saw them and urged their solution. nor was it only sentimental radicals who painted in lurid colours the horrible houses of the people. d'israeli, in "sybil," draws an eloquent picture of the narrow lanes of the rural town of marney, which might be any country town of the south of england--the rubble cottages with gaping chinks admitting every blast, with rotten timbers, yawning thatch letting in the wind and wet, and open drains full of decomposing animal and vegetable refuse, spreading out here and there with stagnant pools--these things were common-places in the homes of rural england in . "these wretched tenements," writes d'israeli, "seldom consisted of more than two rooms, in one of which the whole family, however numerous, were obliged to sleep, without distinction of age or sex or suffering. with the water streaming down the walls, the light distinguished through the roof, with no hearth even in winter, the virtuous mother in the sacred pangs of child-birth gives forth another victim to our thoughtless civilisation, surrounded by three generations, whose inevitable presence is more painful than her sufferings in that hour of travail; while the father of her coming child, in another corner of the sordid chamber, lies stricken by that typhus which his contaminating dwelling has breathed into his veins, and for whose next prey is perhaps destined his new-born child. these swarming walls had neither windows nor doors sufficient to keep out the weather or admit the sun or supply the means of ventilation, the humid or putrid roof of thatch exhaling malaria like all other decaying vegetable matter. the dwelling rooms were neither boarded nor paved; and whether it were that some were situate in low and damp places, occasionally flooded by the river and usually much below the level of the road, or that the springs, as was often the case, would burst through the mud floor, the ground was at no time better than so much clay, while sometimes you might see little channels cut from the centre under the doorways to carry off the water, and the door itself removed from its hinges, a resting place for infancy in its deluged home. these hovels were, in many instances, not provided with the commonest conveniences of the rudest police; contiguous to every door might be observed the dung heap on which every kind of filth was accumulated for the purpose of being disposed of for manure, so that when the poor man opened his narrow habitation in the hope of refreshing it with the breeze of summer, he was met with a mixture of gases from reeking dung-hills." science, medicine, philanthropy, sanitary engineering and enlightened local government have done something to remove many of the horrible things d'israeli describes, but one cannot say that the law has co-operated with much vigour in this beneficent crusade. without law and compulsion the work will never be done as thoroughly as is necessary throughout the length and breadth of the land. the eloquent outcry, from writers of all creeds and parties, demanding better houses for the people at length made itself heard within the walls of westminster. but it was not until that the torrens act was passed, the first attempt of the legislature to deal with slum property. this was followed by the artisans dwelling act of , which enabled local authorities to compulsorily purchase slum areas and re-build sanitary dwellings. in birmingham, where mr. joseph chamberlain was mayor, magnificent use was made of these powers to the great present benefit of the city. in liverpool, manchester, and other towns something was done, but as the business depended in the main on local initiative, and the spending of money, much more remained undone. a few small measures were passed, but they did not lead to any great practical work being put in hand, and again it was the man of letters who wakened the national conscience. i remember well in the eighties the appearance of "how the poor live" by george r. sims and the interest and sympathy it aroused. there is no exaggeration in the book, but merely a graphic record of fact, and it proves with melancholy certainty the small progress that had been made since the days of dickens, kingsley and d'israeli. it was with a great chorus of self congratulation and the loud braying of journalistic trumpets that on march th, , a royal commission was announced to inquire into the housing of the working classes. it is almost forgotten to-day, but in its time it aroused great hopes in the breast of social reformers. sir charles dilke was chairman, the prince of wales himself was a working member of the commission, cardinal manning, lord salisbury, samuel morley, jesse collings, henry broadhurst and other great public men of the day were his colleagues. the overcrowding, the immorality and disease and waste caused by bad housing, the terrible tax of rent on the incomes of the poor were all rehearsed in painful detail before these great ones of the earth. but when one comes to remedies and recommendations, there is nothing except the most trivial and inadequate propositions that the eminent ones can agree upon. their first suggestion is that vestries and district boards should put in force existing by-laws, though who was to make them do it is not mentioned. then they think it would be an added decency to the lives of the poor if there were more mortuaries near their homes to take the dead bodies from the already overcrowded rooms--as though the problem they were there to consider was not the housing of the quick, but the housing of the dead. building by-laws, sanitary inspection, and workmen's trains are a few of the mother partington mop remedies that this great commission had to offer to keep back the sea of troubles that overwhelmed the poor of our great cities in their struggle for decent existence. one cannot blame the members of the commission that so little was suggested. it was inevitable when one remembers that nothing at all is possible in the right direction without a great upheaval which is bound to re-act injuriously on some of the greatest vested interests in the country. a meeting of the great ones in whom the interests vest is not likely to bring about immediate reforms. but at all events here in the pages of the printed evidence are the facts. the horrors painted by d'israeli, kingsley, dickens and george r. sims are at least patiently collated and indexed for us, and now after thirty years we should do better not to expatiate on the little we have done for betterment, but to acknowledge how much we have left undone, and show our repentance in energetic deeds. no one can recognise more clearly than i do the value of such authoritative evidence of facts and details as are collected in the report, but the reading of them only makes one the more impatient at the method of government which can tolerate the continuance of such abuses. in , little or nothing having been done, it occurred to lord salisbury that it was time to have another commission. but it was not until that a select committee of both houses was appointed to consider, in lord salisbury's own words, how to get rid of "what is really a scandal to our civilisation--i mean the sufferings which many of the working classes have to undergo in order to obtain even the most moderate, i may say the most pitiable accommodation." the problem could not be better stated. the scandal was with us in , it was with us in , and it is with us to-day. at least if we are unwilling or incompetent to solve it let us have done with the constant consideration and further consideration of royal and select commissions which only make the hearts of the poor sick with promises and hopes that can never be fulfilled in our own generation. one cannot here set out in detail the various housing acts that have been passed; there was one in , which apparently led to more insanitary houses being closed than new cottages built. there was another in , with further new provisions and modifications of former schemes, and lastly comes the housing and town planning act, which deals rigorously with owners of insanitary property. this act industriously made use of may help to realise our hopes of the possibility of hygienic pleasances for the poor of future generations. here we have a short record of some fifty years of legislative effort--more or less honest--in which each party has sought to promote measures to help the poor who are oppressed, as lord salisbury said, by this "scandal to our civilisation," the want of decent housing. and yet how little has been achieved, how small the results, how disappointing to find the great men who talked in parliament and sat on commissions and discussed these matters with so much learning and ability passing away and leaving this problem for us to tackle, and we on our part looking idly on and still wondering what can be done. if our schoolmasters had taught us how to make bricks and build with them instead of how to read books and write more of them, better results perhaps had been already achieved. there are many acres of houses in england built prior to that exhibit all the slum traits that have been so eloquently described in literature, and many millions of our fellow citizens live in houses which fall below the minimum standard of sanitation where the decent separation of the sexes is impossible and the general conditions of life are sunless and miserable. the amount of overcrowding in england and wales is shown graphically enough in the census returns for . overcrowding from a census point of view means that more than two persons live in a room, counting the kitchen as a room, but not the scullery. "thus," as the editor of the land inquiry report tells us, "if a tenement or cottage consists of two bedrooms and a kitchen, the census authorities would only describe it as overcrowded if there were more than six persons living in it, no matter how small the rooms. the census test of overcrowding is, in fact, quite inadequate to measure the full extent of the evil, and there is great need for the adoption of a more accurate one. even adopting this standard, however, the census authorities find that one-tenth of the total urban population of england and wales are overcrowded. this means that nearly , , persons are overcrowded." no one who is constantly meeting the victims of this state of affairs, and discussing with them, as a county court judge has to do, their domestic affairs, can fail to be struck with the large amount of infantile mortality and disease, and the prevalence of tuberculosis and the general physical and moral weariness and debility, which may in a great measure be traced to the bad conditions in which the working classes must perforce live because there is nothing better obtainable. the price paid for such accommodation as there is, is a cruel tax on the working man. for the meanest shelter he has to pay anything up to twenty per cent. of his weekly income. imagine a man with a thousand a year spending two hundred a year in rent alone. how eloquent would the official receiver be did bankruptcy supervene, as it probably would, and what homilies he would preach on the rash and extravagant folly of the bankrupt in spending so large a proportion of his income on a house. and yet this extravagance is compulsory to a working man, who has to pay out of his wages for a mere roof over his head money that is badly needed for the food and clothing of himself and his family. i have dwelt on this subject at some length because in most of the chapters of this book my complaint has been that the laws are insufficient to help the poor, because they have in past days been enacted by the rich, and are still being administered by the rich, without knowledge of, and sympathy for, the best interests of the poor. here the problem is entirely different. everyone must admit the energy and good faith of all classes and parties and officials, within the rules of the party game, in their endeavour to cope with a condition of things which is an admitted national disgrace, and a scandal to civilisation. the melancholy conclusion, however, stares one in the face. the result of interminable inquiries and committee meetings and palaver is plain unmistakable failure. the fringe of the subject has scarcely been reached, and the state of affairs which the man of letters portrayed to the shame of our grandfathers is likely enough, it would seem, to be "copy" for our grandchildren and their grandchildren to journalise with world without end amen! and although it would be impertinent in me to pretend to have a remedy for these evils where all the great ones have failed to bring about reform, yet i cannot help thinking that the reason of the failure is the reason of much of our legislative failure--the dread of vested interests and the permissive character of the statutes passed. what is the good of asking a town council of builders and landowners and estate agents to put in force laws that will, or at least are expected to, have the effect of diminishing their incomes? should i, or would you, enforce an act of parliament with any joyful energy when we knew that the more thoroughly we did it the more we should be out of pocket? it is asking too much of human nature. there has been a clear failure in the smaller local governing bodies in putting in force even such legislation as exists for the betterment of the district. the rivers pollution acts are a standing instance of the neglect of duty by local councils. for years nothing was done to put the acts in force, because the smaller polluters were the mill owners, who were members of the local council, and the biggest polluter of all was the council itself pouring crude sewage into the river to relieve the rates. parliament lacked a sense of humour when it expected mill owners and sewage boards to prosecute themselves for river pollution. good work in housing will never, i think, be really effectively done until it is left to the initiative of a medical officer of health or a sanitary engineer, with judicial power to order things to be done and force behind him to have them done. the idea that a medical officer of health should be a servant of the casual butchers and bakers of the town council is, on the face of it, an absurd one. he should be as permanent and independent as are the stipendiary, the judge, or the coroner, for he requires even more than common fearlessness to deal roundly with the jerry builders and slum owners who are his aldermen and councillors, and who at present sit on a committee of appeal from his decisions. as long as these matters are left solely to local bodies the real burden of financial consideration, the lack of personal knowledge of hygiene and sanitation among the members themselves, and the shrinking from enforcing legal hardships on the poor owners of bad property, will alone prevent effective reform. to these natural and honest forces must also be added the weight of vested interests, which deliberately obtain power on local bodies for the purpose of preventing housing reform being put into thorough operation. never was there a greater and louder demand by the people for a fair share of the land they live in. the countryman wants his plot and his cottage, and the town dweller a decent house at a reasonable rent. this is the "condition of england question" to-day as it was eighty years ago. never were there more earnest and sincere people discussing what is to be done and how it is possible to transform slums into decent dwellings by act of parliament. we have a willing legislature, a desire to make laws for the benefit of the poor, and after many efforts the result has to be written down as failure and stagnation. it would almost seem as though voluntary effort in this affair had pronounced itself impossible, and it remains undealt with until those who are the real sufferers by the system feel strong enough to put it right. carlyle in an eloquent passage cries out in his passionate way: "might and right do differ frightfully from hour to hour; but give them centuries to try it in, they are found to be identical. whose land _was_ this of britain? god's who made it, his and no other's it was and is. who of god's creatures had a right to live in it? the wolves and bisons? yes, they; till one with a better right showed himself. the celt, 'aboriginal savage of europe,' as a snarling antiquary names him arrived, pretending to have a better right, and did accordingly, not without pain to the bisons, make good the same. he had a better right to that piece of god's land; namely, a better might to turn it to use--a might to settle himself there and try what use he could turn it to. the bisons disappeared; the celts took possession and tilled." interpreting this passage as one written in the true frenzy of prophecy, two things seem to me to take clear shape in the future outlook of the housing question. in the first place, it would seem that it will have to be settled by a celt, and in the second place it will not be achieved "without pain to the bisons." one would have thought that a better plan would be a small business parliamentary committee of all interests with power to enforce their decrees against owners and corporate bodies. something permanent is necessary, akin to the imperial defence committee, which knows no party politics. are we not here in the face of a real danger to the nation? already endeavours have been made to take this matter out of the common rut of party politics, but these efforts have not been altogether successful, and if the matter is not settled soon there would seem nothing for it but a forcible solution and a merry set-to between the celt and the bison, in which we may expect the celt will get the better of the bison but we cannot be sure that the poor will get all they need even from the celt. chapter xiii the two public houses . the alehouse. judged by no o'er-zealous rigour much this mystic throng expresses; bacchus was the type of vigour and silenus of excesses. longfellow: "drinking song." whatever you may think about it you cannot travel from charing cross to dijon through the hop-fields of kent to the vineyards of the côte-d'or without admitting that whether the vine be a gift of good or evil it has come to stay. bacchus is still full of vigour and has as many followers as ever. but the law has nothing to say to bacchus. the law is after old silenus. it lures him into a den and makes him drunk and then locks him up, and the holy willies wag their heads at his shame and collect money for his reformation. there are two public houses open to the poorer citizens--the alehouse and the workhouse. the rich man frequents neither, yet as magistrate or guardian he takes upon himself to lay down the rules by which they shall be run. these fussy, amiable, amateur bosses have conspicuously failed at their job. it is not to be wondered at. as an able manchester business man once said to me of his partner: "he loves sitting on the licensing bench, and thank heaven he does; it keeps him out of the office." but even if the bosses were capable and intelligent they could not hope to succeed in their work. public institutions should be governed by the men who make use of them. the rich man's public-house is so regulated--and what is the result? one may not approve of every detail of cookery or decoration at hotels like the ritz in london, or the adelphi and midland in liverpool and manchester, but the average middle-class man will find in them such reasonable standard of comfort as he desires. there is, at all events, space and light and air, cleanliness, and some luxury. on proper occasions and in fit places there is music, dancing, and billiards, and you may play a game of bridge with your friends when you wish, even for threepence a hundred, in a private room. moreover, there is always food of good quality obtainable at varied prices, and you need not take your drink standing at a counter, though you can if you wish to when there is an american bar. why may not the working man have similar entertainment at the pig and whistle? a complete answer to that question would necessitate a study of the position of artificers and labourers in the middle ages and a short history of the ideals of the well-to-do puritans. the rich have had two objects in view in their legislation about the working-man's public house. a certain section of the rich--the brewers--have aimed at a monopoly of the right to sell him ale, and nothing else, at the biggest possible profit to themselves. a second section opposing the first--the teetotal magistracy--have sought to make the public house as dreary and miserable a place as possible in order to punish the wicked man who wants to drink ale. between the brewer and the puritan the respectable working man with a normal thirst has been jockeyed out of his freedom. swilling and tippling in alehouses and private clubs has been encouraged; the reasonable use of ale--which mr. belloc rightly asserts to be the finest beverage in the world--has been crabbed and discouraged. except an opium den--of which i have only hearsay knowledge--there is probably nothing more comfortless and degrading than the lower-class alehouse of our towns and cities. even in the remote days of plato it was recognised--at all events by philosophers--that there was such a thing as thirst. "no one desires _drink_ simply, but good drink, nor food simply, but good food; because, since all desire good things, if thirst is a desire, it must be a desire of something good." further on in the discussion, socrates addresses ademantus thus: "then for any particular kind of drink there is a particular kind of thirst; but thirst in the abstract is neither for much drink, nor for little, neither for good drink nor for bad, nor, in one word for any kind of drink, but simply and absolutely thirst for drink is it not?" "most decidedly so," replies ademantus--who never on any occasion stood up to socrates and contradicted him. "most decidedly so." "then the soul of a thirsty man," continues socrates, "in so far as he is thirsty has no other wish than to drink; but this it desires and towards this it is impelled." "clearly so." if the licensing bench, and especially the teetotal portion of it, could once arrive as far in their studies of the subject as socrates had done, and could comprehend the zoological fact that man was a mammal with a thirst, they would be on the road to enlightenment, temperance, and reform. of course socrates knew all that the puritans know and a lot more about the rational satisfaction of love and hunger and thirst and the irrational and concupiscent desires that are attached to all natural appetites, but in dealing with the law of licensing in reference to the poor these considerations are not really important. what is wanted is equality. grant to the poor the same reasonable facilities of enjoyment that you grant to the rich, and leave it to public opinion to see that they are not abused. it is a grave disaster that the granting and regulation of licenses should have fallen into the hands it has. mr. balfour's observation "that among all the social evils which meet us in every walk of life, every sphere of activity, the greatest of all evils is the evil of intemperance" is useful as a peroration to any platform speech on the subject, but only makes the judicious grieve that with the opportunity to do exactly as he liked and the ability to draft useful legislation, mr. balfour did nothing whatever to improve matters and diminish the evil of which he was so sensible. section of his act does indeed enable the magistrates to grant new licenses and to make their own conditions as to the payments to be made by the licensee, the tenure of the license, and any other matters "as they think proper in the interests of the public." under this section if there were a licensing bench containing a working majority of friends of the people, men who had no social or political interest whatever either in breweries or teetotallers, it would seem that almost any experiment in model public houses could be made under any regulations that the bench chose to impose on the licensee. mr. balfour was perfectly right in telling us that "love of temperance is the polite name for hatred of the publican"; but what is the right name for love of the brewer? the fact is that with these two warring political factions in the field the ideal public house is not for this generation. no use will ever be made of section under present conditions, because whoever applied for a license, and however noble and beautiful the licensed premises were to be, however ideal the provision of food, entertainment and drink, and whatever the guarantees of good management, the combined opposition of the puritans and the brewers would always strive to defeat or destroy any effort to give the poorer classes pure beer in pure surroundings. the first step you have to take is to convince the unenlightened puritan that the alehouse is, or ought to be, as worthy a public house as the church or the school. this might be done by means of thoughtfully prepared text books of english literature. there is no great english book from the bible downwards that has not incidental good and holy things to tell you of "the inn." what an appetising volume could be written of the inns and innkeepers of charles dickens. how he revelled in their outward appearance and the inward soul of welcome which he found there. how he rejoiced in his sane english way over "the maypole," "with its overhanging stories, drowsy little panes of glass and front bulging out and projecting over the pathway," and honest john willet, the burly, large-headed man with a fat face, intended by providence and nature for licensed victualling. could we have met mrs. lupin anywhere else than beneath the sign of that "certain dragon who swung and creaked complainingly before the village alehouse door"? could mark tapley have acquired his saintly outlook on life anywhere but at "the blue dragon," and are we not full of joy to find him returning there to live happily ever afterwards under the "wery new, conwivial, and expressive" sign of "the jolly tapley"? how pleasant it is to assist crummles and nicholas over their bowl of punch and the beefsteak-pudding in the inn on the portsmouth road. pickwick is a cyclopædia of inns, each with its own human character, good, bad and indifferent. who has not stayed at a "peacock" with a "mantelshelf ornamented with a wooden inkstand, containing one stump of a pen and half a wafer: a road book and directory: a county history minus the cover: and the mortal remains of a trout in a glass coffin"? one could run on in pleasant remembrances of these beautiful and delightful places by the hour, but one imagines that even the most hardened political teetotaller must really know all about them, and perhaps in his dreams strolls into "the marquis of granby" and sips his glass of reeking hot pine-apple rum and water with a slice of lemon in it, and awakens to the horrible imagination that his astral body has wandered instinctively into a manifestation of his master and leader, the incomparable stiggins. one very noticeable matter about any old-world book in which inns are faithfully pictured is that in former days there was a real race of english innkeepers, independent licensed victuallers, not mere brewers' managers. there are still a few remaining with us who keep up the old traditions, but the political forces of brewers and teetotallers have squeezed this excellent race of public servants almost wholly out of existence. you remember the six-jolly-fellowship-porters whose bar was "a bar to soften the human breast" with its "corpulent little casks and cordial bottles radiant with fictitious grapes in bunches and lemons in nets and biscuits in baskets, and polite beer-pulls that made low bows when customers were served with beer." how could there have been such an ideal haven for the weary porters but for the sole proprietor and manager, miss abbey potterson, whose dignity and firmness were a tradition of the riverside? and then the dressing down she gave rogue riderhood. "but you know, miss potterson," this was suggested very meekly though, "if i behave myself you can't help serving me, miss." "_can't i!_" said abbey with infinite expression. "no, miss potterson; because you see the law----" "i am the law here, my man," returned miss abbey, "and i'll soon convince you of that if you doubt it at all." "i never said i did doubt it at all, miss abbey." "so much the better for you." and how much better not only for rogue riderhood, but for all of us, if we could once again make licensed victualling a great and respectable trade, and once again have a race of people managing businesses that they could really take a pride in. the death of the old boniface who owned his house and bought his beer in the open market was brought about by the amalgamation of the smaller breweries in the country, and the purchase of the bulk of the licensed houses by the big breweries. the teetotallers assisted this natural evolution by harassing individual owners with trumpery prosecutions, opposing alterations and transfers at licensing sessions, and surrounding the commercial life of an individual licensee with persecution and annoyance and continued threats of impending ruin. one man could not fight the great moneyed forces of the puritans, and the licensed holder was glad to get out of an impossible trade by selling his interest to the brewers. most of the licensed houses in the country now belong in everything but name to the big brewery companies. their political friends have given them a vested interest in their licenses, and the teetotallers having spent large sums of money and wasted much energy in manoeuvring their opponents into this excellent position, now sit sulkily at the gates of it, and as they cannot do any effective good themselves, take earnest pleasure in preventing any enlightened brewer from making the conditions under which he sells his drink better and healthier for the community. the result is that the poor man suffers. in the whole of this long unworthy struggle between the political teetotaller and the brewer, the higher interests of the poor and the real desires of the working classes are scarcely ever mentioned--still less considered. when he is in sufficient numbers, and is well enough off to do so, the poor man starts a club like his betters, and no doubt these are valuable institutions, but the club at the best does little for the wives and children, and is apt, unless the public opinion of it is sound, to lead a man astray owing to its very privacy. the puritan ideal is to drive the drinker into dark secret places, and as far as possible make his surroundings uncomfortable and degrading. the policy of the future is going to be to encourage the authorities--and, if necessary, get new and more up-to-date authorities--to replace the old dark, dirty puritan pub with a bright and enchanting reformed inn, fit for all classes of folk, with music, entertainment, and all manner of reasonable refreshment. nothing can be done until we recognise frankly that for years we have been moving along a false track towards a mirage castle in the air, and that if anything useful is to be achieved by administration or legislation we must turn our backs on the past and start along a new road. some few facts seem beyond dispute. the mere cutting down of licenses has in itself no demonstrable effect on the evil of the drink habit. the manners and habits of all classes of people are tending to temperance and sobriety, but the consumption of exciseable articles is increasing--last year there was an increase of £ , , over the figures of . what, then, is to be done? i think if we really want to do good in the matter and can approach it without a desire to make dividends out of brewery shares, or make alliances with teetotallers for political ends, we shall have to look to some extent to foreign examples for guidance in our difficulties. all of us who have had leisure and money to see something of foreign countries know that the squalid ideal of the brewer and the puritan is not the only possible solution of such social difficulty as there is in providing reasonable alehouses. the british public-house is a national disgrace thrust by the rich on the poor by means of law. the working man has no chance of amending things, as he has no say in electing the bosses. labour leaders short-sightedly favour the puritans' views. certainly, our public-houses being what they are, it is a choice of evils to keep out of them. but why should public-houses be what they are? i well remember at mayence entering a beautiful public hall--it was a rainy night, or the entertainment would have been out of doors--where there was a fine string band playing excellent music. men, women, and children sat at tables and had ham and bread and cake and beer and coffee, and those who wished to do so smoked. there was no swilling at counters, there was no forced teetotalism, there was no drunkenness; merely domestic liberty for rational enjoyment. why cannot there be sufficient free trade in the beer business of this country to allow an individual or, if you prefer it, an enlightened municipality--where such exists--to copy the sane entertainments of our german neighbours? a working man and his wife and children spend their evening listening to the band in a german beer-garden with as little sense of impropriety as lord and lady de vere and the hon. gladys de vere take their lunch at the ritz, or alderman and mrs. snooks lunch in the french restaurant at the midland. but in england these domestic felicities are for the rich alone. the brewers and puritans have given the poor man a mean tippling-house to booze in, and deny him anything better. his wife is looked upon as degraded if she joins him at the only place where he can spend his leisure, and the rich lawgivers put the true stamp on their own invention by enacting that it is an unfit place for little children to enter. the fact is that the public house should be built in the interests of the public. there seems no great decrease in the desire to drink good ale. it is a national taste, and, if the ale be good, it is probably at least as healthy, or healthier, than drinking tea as tea is brewed in cottage homes. but in the name of liberty and equality, surely if a man wants to drink ale in moderation he should be encouraged to do so in bright, pleasant surroundings, where he can spend his evenings at a moderate cost with his wife and children and meet his friends. he should be allowed to open such a place himself if the municipality will not do it for him, and the more civilised brewers should be assisted and encouraged by the licensing authorities to build big, spacious public houses, where the poor man could obtain similar entertainment to that provided for his wealthier brother. there is something almost shameless in the way in which the law of licensing is stretched to the uttermost for the rich and drawn to the narrowmost for the poor. one picks up a paper with an account of the latest midnight ball--the gayest event of the season--all in the interests of charity, of course. what has become of that closing time which, if overstepped by the poor, means police court for the criminals and loss of license to the innkeeper? it has been extended, no doubt, by a complacent magistrate, and you can sit down to supper at midnight, and all night long you can refresh yourself at american bars presided over by beautiful ladies of the chorus. one gathers there will be no closing time at all, as breakfasts will be served from three o'clock. in the intervals of the dancing there are to be famous music-hall turns. at some of these fashionable dances valuable prizes are given, at others these fall to lucky ones by some form of lot--not lottery, of course, for that would be against the law, and these entertainments are arranged by eminent leaders of society who are always within the law--well within it. it would be ill mannered to endeavour to stop so much innocent enjoyment of a class that has so little real pleasure by enforcing the licensing and other laws to interfere with their amusements. on the contrary, we should seek to use their example and better our own licensing circumstances by an appeal to their precedent. if it is good for leaders of society to sing and dance and sup after hours in their public houses, why should not the rest of society be allowed to follow their example and have their own beanfeasts in ample public houses undisturbed by the law? of course there must be a charity! give me an extension of license in the old kent road and i will provide plenty of charities and plenty of lads and lasses ready to sing mr. adrian ross's refrain: care has gone to sleep till morning, night's the noon of joy. for the young people of the poor are just as fond of a spree as those of the rich, and quite as ready to be charitable to the extent of their means after the same fashion. there is an excellent letter of charles kingsley's written to the "christian socialist" some sixty years ago that might well be circulated among licensing benches by the home office--though i believe it is considered officially to be bad economy to address printed common sense to the unpaid magistracy. naturally, autocrats resent or scoff at advice that has no sanction behind it. the teetotal attitude of mind and the quarrels it aroused very properly disgusted kingsley. he took no pleasure in hearing the water drinkers calling the beer drinkers "flabby, pot-bellied, muddle-headed, disgusting old brutes," and the beer drinkers retorting on the water drinkers that they were "conceited puritans and manichees and ascetics." he saw that the quarrel would not do any good to the cause of temperance, and in his honest enthusiasm blurted out the truth, the whole truth and nothing but the truth about his teetotal friends, like the good old christian warrior that he was. "on my honour," he writes, "unless the teetotallers show a more humble, gentle and tolerant spirit than is common among them i shall advise beer drinkers like myself and mr. hughes (tom brown of the schooldays) either to flee the country, or if their cloth allows them, which mine does not, prove by self-defence that a man can value his beer, and thank god for it with a good conscience, as tens of thousands do daily and yet feel as tight about the loin and as wiry in the arm as any teetotaller in england. honestly, i am jesting in earnest. i regard this teetotal movement with extreme dread. i deeply sympathise with the horror of our english drunkenness that produced it. i honour every teetotaller as i honour every man who proves by his action that he possesses high principle and manful self-restraint.... that a man should be a teetotaller rather than a drunkard needs no proof. also that a man should go about in a sack rather than be a fop and waste time and money on dress. but i think temperance in beer, like temperance in clothes, is at once a more rational and a higher virtue either than sackcloth or water." this was true doctrine then and is true doctrine to-day, and the sad fact that it fell on deaf ears and is still but half understood is the reason of our backwardness in licensing reform and the presence of the degrading public house which the law cherishes and protects. only the other day in a country town, on the application for a license, the police superintendent objected to the house on the ground of the small bar accommodation. his grace the duke, who happened to be in the chair, wanted to know if the proprietor of the house would prepare a plan for enlarging the bar accommodation. what could the proprietor do? the police wanted to herd the drinkers into a bar so that they could pop their heads in and see them all at once without any trouble, the bench wanted to do what the police wanted them to do. the interests of the poor, the cause of temperance, the betterment of the social life of the people were as irrelevant to the case as the flowers that bloom in the spring. at many a licensing session, too, you will listen to solemn warnings by the superintendent of police against the public being allowed to amuse themselves with penny-in-the-slot machines or gramophones or parlour quoits or the like. amusement is regarded with a natural horror by the puritan, and the friends of the brewer see in it a dangerous alternative to the duty of the working man to drink. one police authority threatened the license holders "that if they continued to allow these machines to be used in their licensed premises they did so at the risk of prosecution for allowing gaming." the gaming laws of england with their wholesale permission of gambling in one place and their retail persecution of gambling in another place, and their incapacity to know when a place is not a place or how otherwise, are a public laughing stock, but it is a grievous thing that they should be dragged out to drive a little harmless amusement out of the dingy tavern which is the only public institution the poor man has for rest and recreation. as a matter of fact, these machines, if they are used for gambling, are generally used to see who shall pay for drinks. in some bars in foreign countries a dice-box is always handy for this purpose. three or four friends come in and throw, the loser pays for drinks, and all are satisfied, and having had their drink they go. i am not upholding the custom as ideal, but i see little harm in it. in england, if three or four enter a public house, the etiquette in many places is for one to stand drinks, and for the rest in turn to offer to stand another round--an offer seldom refused--and for the rounds to continue until each has stood his corner. i would not go so far as to insist on a compulsory dice-box in every bar, but i fancy on the whole that it is an agent of temperance. every one who has given any thought to temperance as opposed to teetotalism, is agreed that what is wanted is the gradual elimination of bars and counters and the substitution of chairs and tables and big open rooms. in these must be provided tea, coffee, and all the usual lighter refreshments that you find in the better-class restaurants and hotels. in a big west end hotel you find every afternoon that the lounge is laid out for afternoon tea. i do not see why a working man and his wife should not have their tea in a lounge in their public house. i cannot understand why, if two friends after a day in the workshop want to have a friendly chat, they cannot find an institution where one can have his cup of tea and a muffin, and the other his glass of ale and a sandwich, and both sit at one table in a spacious room with comfortable surroundings, and if they do not heartily dislike it a gramophone to play tunes to them. that is impossible of attainment as the law now stands. if a millionaire was to offer to build in manchester a dozen working-men's cafés on the continental plan where any decent citizen could be pleased to take his wife and children, as our french and german neighbours do, the brewers, the teetotallers, the police, the licensing magistrates and the law would see that it was not permitted. and yet we know by experiment that in proper surroundings, reasonable facilities for refreshment do not lead to drunkenness. in the manchester exhibition of , it being a wonderfully fine summer, and licenses having been freely given for the occasion, there was an opportunity of testing whether under proper conditions opportunity led to excess. i never heard that it did. in the franco-british exhibition where reasonable facilities of refreshment were also given, it is said--and i have no doubt truly said--that though eight or nine million visitors passed through the turnstiles, yet there was not a single case of drunkenness. the problem is really a simple one, if we could only get administrators and legislators, but especially the former, to look at it in the interest of the man in the street. to the big brewery company beer is an effluent, and the public house is the conduit pipe through which they pour it into the public stomach. they have obviously no interest in ideal public houses--and why should they? they are business men on business bent. the teetotallers, on the other hand, regard the drinking of beer as a sin, and any public house as the house of the devil. why should they help the devil to make his house sweet and attractive, and make the path easier for the poor sinner who thirsts after beer? at present the average licensing bench consists of "half and half"--to use a trade term--of these elements. if there happen to be a few cranks on the bench who share the feather-headed notions set down in this chapter, they can always be out-voted by a combination of brewer and teetotaller. and for my part i think we shall stick to our glorious institution of the "tied-house" just as long as the working man intends to allow us and no longer. when reformed public houses are taken up by the men who use the public house, and when labour demands something better, the demand will be met. for the teetotaller is nothing if not political, and when he sees where the votes are, and not before, he will begin to see the error of his ways. meanwhile it will do him no harm to study the statistics such as they are, and discover that the number of licenses in a district has nothing to do with the amount of drunkenness therein, and to look back on the past history of the public house and recognise that he has for many years been the friend and ally of the undesirable brewer. the good citizen's policy should be the provision of pure ale in wholesome surroundings, thereby freeing the working class from the tyranny of the public house. to the teetotallers who hinder such a policy i can only repeat charles kingsley's message: "and i solemnly warn those who try to prevent it that they are, with whatsoever good intentions, simply doing the devil's work." chapter xiv the two public houses . the workhouse. pauperism is the general leakage through every joint of the ship that is rotten. were all men doing their duty, or even seriously trying to do it, there would be no pauper. * * * * * pauperism is the poisonous dripping from all the sins, and putrid unveracities and god-forgetting greedinesses and devil-serving cants and jesuitisms, that exist among us. not one idle sham lounging about creation upon false pretences, upon means which he has not earned, upon theories which he does not practise, but yields his share of pauperism somewhere or other. thomas carlyle: "latter-day pamphlets," "the new downing street." the current cant of the day is that the alehouse leads to the workhouse. from an architectural and hygienic point of view they have much in common, and perhaps when one comes to spend one's last years amid the unloveliness and official squareness and coldness of the workhouse one will be able to look back with a sense of grateful pleasure to the more natural squalor of the alehouse. it is a zoological fact that the human pauper, escaped for the day from a workhouse, makes like a homing bird for the alehouse, wherefrom we may draw the conclusion that the public for whom our two public houses are provided by an intelligent state prefer the alehouse as the lesser abomination of the two. i often wonder if there is any nation in the world that possesses an appetite equal to that of our own people for royal commissions and reports. i admit that i have the craving strongly myself--not to sit upon commissions, for i am a working man and the amusement is one for bishops, law lords, philanthropists and the leisured classes--but i buy the reports when they come out and sometimes read them--or some of them--or some part of them--and marvel at the patience and energy and research that have gone to the making of them, and sigh over the pity of it and the heart-breaking inutility of the whole business. here is the report of the royal commission on the poor laws, . the blue cover of my copy is already turning grey with old age, the pencil marks i made in the margin when i read it five years ago remind me of the splendid reforms that spread themselves out in its pages and made one feel that after all the world was a better affair than one had hitherto believed. this report is indeed literally a monument of industry. it sat from to . there are over twelve hundred pages in the report itself, which you can buy for the trumpery sum of five and six. the evidence of it is contained in many volumes, and if your library is large enough and you can afford to pay the price of a large paper set, you would have reading enough for the rest of your natural life. and what has come of it all? practically nothing. it is not to be supposed that either the report or the evidence has ever been read and studied by our ministers and rulers. a few magazine and newspaper articles have been made of it, then perhaps a book or two are written on the subject, the origin of which you can trace to the report, and after that gradually the thing sinks by its own cumbrous weight into the dead limbo of forgotten state papers. yet if there was a problem called the reform of the poor law in worthy of the consideration of the good men and women who gave up a large slice of their lives to working at it surely in there is still such a problem, and some of it is at least as urgent as the questions over which our political pastors wrangle and fight with such splendid energy. to write an essay on the law and the poor in relation to the relief of distress would be to traverse the whole ground of this famous report, but for my own part i only want to call attention to an institution typical of all the faults and errors of the poor law--the workhouse. for if the rich have by their laws made a mess of the alehouse, what about the other public-house--the workhouse? when you have no money to enable you to take your ease at your inn the only other hostelry open for you and your wife and children is the poor house. if there is one subject that has a more confused melancholy legal history than another it is the story of the workhouse. no doubt much has been done and something is doing, but it is difficult to see the real metal of the reformer's work for the great heaps of poor law dirt that our forefathers have left for us to clear away. for years the great english general mixed workhouse has been looking for trouble. it has not a friend even in the local government board office, and it has been condemned by all right-minded men and women time out of mind as an abomination of desolation standing where it ought not. yet there it is. a blockhouse, invented, built, and governed by blockheads, or at least beings with wooden blocks instead of human hearts. it is mournful to read the poor law history of the last eighty years and to learn how little we have done to dry the tears of the widows and orphans who become, through folly, misfortune, or ill-regulated industry, the wards of the state. and to understand how such an institution came into our midst, it is necessary to look back a bit upon the natural history of our poor law. whatever our failings may be as practical statesmen capable of translating philanthropic theory into practical statutory right action, no one can deny we are a great people for ideals. and the ideal of our poor law has from earliest days been excellent. coke in his institutes tells us that it was ordained by kings before the conquest that the poor should be sustained by parsons, rectors, and parishioners, "so that no one should die from lack of sustenance." that was, and still is, the ideal. no citizen is to die from lack of sustenance, and yet surely since the conquest, and even recently in our own time, some perverse person has escaped the careful eyes of the parsons, rectors, and parishioners, and crept away to an obscure corner there to die of hunger against the ordinance of kings in that case made and provided. coke got this phrase from andrew horn, the author or editor of that excellent treatise "la somme appelle mirroir des justices," which he must have compiled somewhere before , though it was first printed in . horn's "mirror of justices," is not, i believe, regarded with great reverence by the learned as a law-book, but coke enjoyed it and quoted it with approval, and whether or not some of its phrases were ever sound law i dare not express an opinion, but i will vouch for the excellence of andrew's sympathies. in writing of the criminal law he tells us that "the poor man who to escape starvation takes victuals to sustain his life, or a garment to prevent death by cold, is not to be adjudged to death if he had no power to buy or to borrow, for such things are warranted by the law natural." i suppose it is doubtful if this was ever good common law to be acted upon in all criminal courts, but one admires old andrew for setting it down and is glad to learn that even in the beginning of the fourteenth century there were writers on law who were trying to mitigate the rigour of the law in favour of the poor. they may not have actually stated what the law exactly was, but they had shrewd ideas at the back of their minds as to what it ought to be. if they confused the two themselves at times, and this confused other learned ones in after times, maybe no one has been much the worse for it. and when horn laid down in his quaint dog french that "les povres fusent sustenuz par les persones rectours des eglises e par les paroisiens," i fear he was writing of what ought to be rather than what was the existing common law of the relief of the poor. i am not at all sure that leaving the matter in the hands of parsons and parishioners has not been the cause of most of the failure of the poor law. if you have studied parsons and parishioners as a class, you do not find them peculiarly desirous of providing sustenance for others. queen elizabeth--a very practical lady, much thought of by parsons and parishioners--was evidently of the opinion that you were asking too much for the poor when you said that they should have sustenance for nothing. she it was who enacted that in return for the ideal saxon sustenance, which was apparently to be freely given, the poor person was now to give his work. churchwardens and overseers, instead of giving free relief had power to set to work children whose parents could not maintain them, and make their parents work too if necessary. this was the beginning of the system that made you chargeable on the parish, and gave the parish a right to make you work off some of your chargeability. in the eighteenth century came the interesting and disastrous experiment of indiscriminate out-door relief. the farmer parishioner discovered he could get a cheaper labourer by making his fellow parishioners pay some of the wages in out-door relief. a pauper was a better tenant to have, since the rent was paid out of the poor rates, a bastard child was an asset in a household, and in overseers are known to have shared out the pauper labourers among themselves and their friends and paid for the labour wholly out of the poor-rate. the scandals that had arisen led to the reform of the poor law in , which placed the administration in the hands of commissioners who were to see that the law was carried out, and by a natural swing of the pendulum they turned from an indiscriminate doling out of rates to favoured paupers to a system whereby the labourer was to find that the parish was his hardest taskmaster so as to induce him to keep away from the overseers and make parish relief his last and not his first resource. the ideal that the commissioners stood out for was that no relief whatever was to be given to able-bodied persons or to their families otherwise than in well-regulated workhouses. this was the beginning of the workhouse system which really made the workhouse a kind of prison for those who could not find work outside. a great deal has been done since then, and especially in recent years, to mitigate the lot of the poor. old age pensions, labour exchanges, medical insurance, unemployment insurance and the enlightened administration of some of the better boards of guardians have made great inroads on the negative inhumanity of the workhouse system. but unless it be in some of the more vigorous northern centres poor law work and poor law elections rouse but little enthusiasm. there are no doubt many men and women who enter into the service of the poor law from noble motives and do useful work, but the good they can do is very limited. the central authority seems to have no very settled ideals, different boards run different policies, some hanker after the flesh pots of labour cheapened by indiscriminate relief, others clamour for lower rates obtained by the inhumanity of not allowing anything but indoor relief. the guardians whose voices are raised only in the interests of the poor are scarcely heard by those who are clamouring for a lowering of the rates. one thing all reformers seem to be agreed upon, and that is that the general mixed workhouse with good, bad, and indifferent men, women, and children herded together within its four walls is an abomination of desolation. maybe it did its work in the past as part of the evolution of the poor law, dragging it out of a slough of corrupt and unwholesome administration, but a time has surely come when we can apply more scientific remedies to prevent the recurrence of such scandals, and there is no longer a necessity to sacrifice the lives and happiness of decent men, women, and children by the continuance of our workhouse system. for what is a general mixed workhouse? it is an institution that has been officially condemned since the commissioners of went their rounds and made their report. crowded together in the workhouses of that day they found a number of paupers of different type and character, neglected children under the care of any sort of pauper who would undertake the task, bastard children, prostitutes, blind persons, one or two idiots, and an occasional neglected lunatic. there was enough humanity among the commissioners of eighty years ago to see that what was urgently necessary was classification; the aged and the really impotent wanted care, peace, and comfort, the children wanted nursing, supervision, and education, hard working men and women in misfortune did not want to live in close proximity to the "work shy" and the "ins and outs." "each class," says the report, "should receive an appropriate treatment; the old might enjoy their indulgences without torment from the boisterous; the children be educated and the able-bodied subjected to such courses of labour and discipline as will repel the indolent and the vicious." this was reported of the workhouse in , this is again reported of the workhouse in ; there seems every reason to believe that it will be once more reported of the workhouse in . of course, many things are better to-day than they were eighty years ago. a different standard of sanitation and hygiene has arisen throughout the country and some of it has found is way into the workhouse. we have poor law schools and poor law infirmaries that were unthought of in those days and, as a whole, our buildings are clean and healthy; there is no ill-treatment in them as there was in the days of bumble; food, clothing and warmth are at least sufficient; and in communities where there is an exceptional board and a superior master and matron much is done to hinder the obvious evils of promiscuity. nevertheless, the evil overshadows the good, for it is the institution itself--the workhouse--that is as radically unwholesome and unfit to-day as it was in . the evils of promiscuity cannot be exaggerated. in the larger workhouses male and female inmates dine together, work together in kitchens and laundries and in the open yards and corridors, with results that are obvious. in a fortuitous assembly of such people the lowest common denominator of morality is easily adopted as the standard. what a terrible place is a general mixed workhouse to which to send children or young people. one cannot read some of the passages in the report for which mrs. sidney webb and her colleagues were responsible without shuddering at our own guiltiness and folly as ratepayers for allowing these things to be done in our name. "no less distressing," they say, "has it been to discover a continuous intercourse which we think must be injurious between young and old, innocent and hardened. in the female dormitories and day rooms women of all ages and of the most varied characters and conditions necessarily associate together without any kind of restraint on their mutual intercourse. there are no separate bedrooms; there are not even separate cubicles. the young servant out of place, the prostitute recovering from disease, the feeble-minded woman of any age, the girl with her first baby, the unmarried mother coming in to be confined of her third or fourth bastard, the senile, the paralytic, the epileptic, the respectable deserted wife, the widow to whom out-door relief has been refused, are all herded indiscriminately together. we have found respectable old women annoyed by day and by night by the presence of noisy and dirty imbeciles; idiots who are physically offensive or mischievous, or so noisy as to create a disturbance by day or night with their howls, are often found in workhouses mixing with others, both in the sick wards and in the body of the house." this picture is foul and detestable enough, but it is perhaps in the treatment of children that the workhouse system causes the greatest unintentional cruelty. there are some , children actually living in general mixed workhouses. a large proportion of these have no separate sick ward for children, and no quarantine wards if there should be such a thing as an outbreak of measles or whooping cough. young children are to be found in bed, with minor ailments, next to women of bad character under treatment for contagious disease, whilst other women in the same ward are in advanced stages of cancer and senile decay. children come in daily contact with all the inmates, even the imbeciles and feeble minded are to be found at the same dining table with them. in this huge state nursery the nurses are almost universally pauper inmates, many of them more or less mentally defective. a medical inspector's report in , stated that in no less than "sixty four workhouses imbeciles or weak-minded women are entrusted with the care of infants." one witness states that she has "frequently seen a classed imbecile in charge of a baby." in the great palatial workhouses of london and other large towns the commissioners found that "the infants in the nursery seldom or never got into the open air." they found the nursery frequently on the third or fourth story of a gigantic block, often without balconies, whence the only means of access, even to the workhouse yard, was a lengthy flight of stone steps down which it was impossible to wheel a baby carriage of any kind. there was no staff of nurses adequate to carrying fifty or sixty infants out for airing. "in some of these workhouses," they write, "it was frankly admitted that the babies never left their own quarters, and the stench that we have described, during the whole period of their residence in the workhouse nursery." seventy years have passed since it was written, and yet the "cry of the children" has as much meaning for us as it had for our grandfathers. the young lambs are bleating in the meadows, the young birds are sleeping in the nest, the young fawns are playing with the shadows, the young flowers are blowing toward the west-- but the young, young children, o my brothers, they are weeping bitterly! they are weeping in the playtime of the others, in the country of the free. and i am far from suggesting that all this evil is the result of any personal inhumanity of boards of guardians, masters or matrons or of their inspectors and governors in higher places. it is a matter in which each individual citizen must bear his share of blame for he knows it to exist, and he knows that he can have it altered if he cares to put his hand deep enough into his pocket, or if he will forgo some of the political luxuries dear to his party heart and give up the expenditure on them to the betterment of little children. other european countries have managed to classify their poor. in france the medical patients go to hospitals, the infirm aged poor have special "hospices," and the blind and the idiots are separated from the little children, each having their appropriate establishments. of course we take a great and to some extent justifiable pride in our local government institutions, but as the world becomes more complex and difficult, it is beginning to be seen that backward and less intelligent districts do not get the full value out of legislation and rates that a progressive and vigorous district obtains. it is one thing to pass an act of parliament and another thing to get a local elective body to administer it intelligently. if we could level up the worst administration of guardians to the best, a great deal would be done, but there is no manner of doubt that the state ought to impose a time limit on the general mixed workhouse and to enact that after such a date no board of guardians shall be allowed to house men, women, and children in the unclassified barracks in use to-day. if any body of guardians do not feel capable of carrying out such a decree the state must take their job over and do it for them. for eighty years the law makers have been told by their own experts what their workhouses were, and why they ought to be abolished and the fact that the greatest sufferers from the iniquity are poor children who cannot voice their complaints, and exist in dumb ignorance of the wrongs that are done to them, does not make our position as the wrong-doers any less deserving of damnation. chapter xv remedies of to-day ring out the feud of rich and poor; ring in redress to all mankind. tennyson: "in memoriam." when absalom cried out in a loud voice, "oh, that i were made judge in the land that every man which hath any suit or cause might come unto me, and i would do him justice!" he was, as we should say nowadays, playing to the gallery. yet, sincerely uttered, what a noble wish it was. let it stand as an expression of the still unfulfilled ideal of judicial duty and public service which we owe to-day to the poor of this country. every man has not as yet a judicial system that does justice to every man. and i fear that absalom's fine saying was only an election cry in his campaign against his father, recalling to the voters perhaps david's inconsistency in the theory and practice of justice in the matter of uriah and his wife. in those days the king, the lawgiver, and the judge were but one person, so that to be made judge was to be made lawgiver and king, and you not only administered the laws but made them as you went along. absalom was only an office seeker, but his election address contained a noble sentiment. nowadays the judges are merely servants of the law, like policemen and bailiffs and the hangman. nor does the king make the laws, nor are there in theory any professional lawgivers. the people--or at least so many of the people as get on the register and trouble to vote--make their own laws, or are supposed to do so. at least they have the power of choosing their representatives and servants to make what laws they want. if, therefore, a sufficient number of men in the street greatly desired amendment of the law in this or that direction, i have no doubt it would come about. but very few of the problems that trouble me come before the eyes of the average man in the course of his daily life, and he is scarcely to be blamed for not trying to mend that which he has not observed is broken and worn out. one man may know at first hand the story of a home ruined by reckless credit and imprisonment for debt, another may know a cruel case of lives blighted by our unequal divorce laws, a third may have seen the sad spectacle of an injured workman sinking from honest independence to neurasthenic malingering by reason of the poisonous litigious atmosphere of the workmen's compensation act. i can never understand why men and women hunger after the tedious, unreal, drab scandals portrayed in a repertory theatre when they could take a hand at unravelling the real problem plays of life in the courts and alleys of the city they live in. real misery and wretchedness is at least as pathetic as the sham article, and if you do your theatre-going in a real police court you may learn to become a better citizen. not that i advise all men and women to spend their leisure in these squalid surroundings. i recognise that the man in the street cannot at first hand study all these problems, and that is why i have set down something of the disabilities of the poor under the law, in the hope that my political pastors and masters may take an interest in these domestic reforms. there are many, i know, who think that a judge, like a good child, should in matters of this kind be seen and not heard. but for my part i am not of that opinion, for if a judicial person knows that the machine he is working is out of date and consuming unnecessary fuel, blacking out the moral ether with needless foul smoke, and if, moreover, he thinks he knows how much of this can be put right at small expense, should he not mention the matter not only to his foreman and the frock coat brigade in the office--who are the folk who supply the bad coal--but to the owner of the machine who has to pay for it and live with it--the man in the street? now there is a great deal that might be done to make the law less harsh to the poor without any very elaborate legislation, and certainly without any of those absurd inquiries and commissions which are the stones the latter-day lawgivers throw at the poor when they ask for the bread of justice. i like to read of lord brougham, as far back as , shivering to atoms the house of fraud and iniquity known as the court of chancery. i like to picture him pointing his long, lean, skinny fingers at his adversaries, and to see the abuses he cursed falling dead at his feet. could he have had his way, the very county court system which we have to-day would have sprung into being within a few months of his taking his seat on the woolsack, and he would have instituted courts of conciliation for the poor, to hinder them from wasting their earnings in useless costs. but the petty men who walked under his huge legs and peeped about were too many for colossus. and, to be fair to the fools of his time, the great giant was not himself a persuasive and tactful personality. sane, wise, and far-reaching as were the legal reforms he propounded, too many, alas, still remain for future generations to tackle. pull down your hansard debates of to-day, read them if you can, and say honestly in how many pages you find political refreshment for the man in the street. the small reforms of existing laws that weigh hardly on the poor are worth at least as much of parliamentary time as many of the full dress debates about ministers' investments and tariff reform and the various trivial absurdities that excite the little minds of tadpole and taper, but have no relation whatever to the works and days of the power citizens of the country. and if i were called upon to draw up a new magna charta for the poor--and i could draft all the reforms i want in a very small compass--i should put at the head of the parchment--"let it be enacted that no british subject may be imprisoned for a civil debt." i do not believe that if members of parliament would vote on this subject as i know many of them would really wish to vote that there would be a dozen voters in the "no" lobby, and i am firmly convinced, though here i must own my parliamentary friends are in disagreement with me, that they would not injure their hold on their constituencies. if there were any machinery in our unbusiness-like parliament for dealing with social subjects on a non-party basis, imprisonment for debt would have been abolished long ago. the proposal is, however, a proposal to ameliorate the bottom dog, and the human bottom dog is poorly represented in the great inquest of the nation. the foreign bird whose plumes adorn the matinee hats of our dearly beloveds, the street cur who might find a sphere of utility in the scientist's laboratory, the ancient cabhorse who crosses the channel to promote an entente cordiale by nourishing the foreigners--all these have friends, eloquent and vigorous for the lives and liberties of their especial pets; but the poor man who goes to gaol because he cannot pay the tally-man has few friends. there is no getting away from the fact that political influences are against the abolition of imprisonment for debt. i remember many years ago--more than twenty, i fear--a learned county court judge laughing at the eagerness with which i threw myself into a newspaper campaign against imprisonment for debt. "i, too," he said, "used to think i should live to see it abolished, and you think that merely stating unanswerable arguments against it is likely to lead to results. well, i used to think that way about it at one time, but it is not a matter of argument at all; it is all a case of vested interests and nervous politicians. some day another lord brougham will come along and sweep the thing away as he swept away the old chancery courts and many another legal abuse, but i shall never see it done, and unless you are another methuselah you will never see it done." and then with a laugh of mock despair he added: logic and sermons never convince, the damp of the night drives deeper into my soul. i am beginning to think that my old friend spoke with the tongue of prophecy, and he was certainly right about the vested interests. the three parties in english politics have a curious attachment to imprisonment for debt. they do not allude to it much on the platform or in the house, but it is there at the back of their minds all the same. the conservative opposition to the proposal is the more straightforward and natural. here is a system which enables the well-to-do to collect money from the poor, it encourages credit giving, and is thought to promote trading, it causes no inconvenience to the wealthier classes, it exists and always has existed, and it works well. why should it be altered, especially as there is no great demand for change, and change is in itself an evil thing? let us leave well alone. the liberal, off the platform, is much in agreement with the proposition of abolition, his difficulties are purely practical difficulties. he finds among his best supporters, drapers, grocers, tally-men and shop-keepers, most of them nonconformists and keen radicals, and all of them credit givers, carrying on their businesses under the sanction, more or less direct, of imprisonment for debt. these traders are not only voters and supporters, but they are centres of political influence. i remember in the south of england, thirty years ago, being told of a grocer in a small village who was a man whose support it was necessary for the candidate to obtain. i went along to see him and he agreed to support my friend. he was worth over two hundred votes, all of them in his debt and liable to be summoned at any moment for more than they could pay. in politics it is absurd to expect individuals to kick against the pricks, and i do not know of any politician who, deeply as he may believe in the justice and expediency of abolishing imprisonment for debt, has ever cared to take up the matter and place it prominently before his constituents in the hope of being able to convince them that it would make for the greatest happiness of the greatest number. the general belief seems to be that the influence of the shopkeeping and travelling trading classes would be used against such a quixote, and he would receive a severe warning to stick to the ordinary hack lines of political talk and not risk his seat tilting at windmills. the attitude of the labour party is even more peculiar. outwardly and individually they, of course, being more thoughtful and experienced about the wants of the poor, agree very heartily that imprisonment for debt is a class institution which should be abolished. but they certainly show no great enthusiasm in taking a hand at working for its abolition. this is partly due, no doubt, to the fact that they are business men and not theorists and have other and nearer work to do. they would, i make no doubt, support any measure of abolition, but it is essentially a legal reform and they would wait for some legal authority to initiate it. there is too, undoubtedly, at the back of the labour mind the idea that imprisonment for debt may be a very present help in time of trouble. in the select committee of mr. william johnson, a miner's agent, gave evidence in favour of imprisonment for debt; he asserted that nine-tenths of his men did not desire its abolition and were in favour of its continuance. later on he pointed out that in case of sickness or in the case of non-employment, "and probably in the case of strikes," credit given under the sanction of imprisonment for debt would be useful. unemployment and sickness are now largely dealt with by insurance, and from a public point of view the idea that strikes should be financed by the small tradesmen and, in case of their bankruptcy, ultimately by the wholesale trade, is not an attractive one. the reformer must always expect to find selfish class interests up against him, but it seems to me that the desires of those who want to finance strikes on credit and the rights of those who at present are selling shoddy on credit at extravagant prices ought not to weigh against the general public welfare. if, as i venture to think, the arguments against the last step in the abolition of imprisonment for debt are as valid as they were on former occasions, and if, as must be admitted, no evils have followed on the partial abolitions of imprisonment already made in and , then the mere fact that the public is apathetic on the subject and that members of parliament are apprehensive of interested opposition is not of itself sufficient excuse for those who are in authority in legal matters refusing to complete the reform by abolishing imprisonment for debt for the poor as it has already been abolished for the rich. of course, the mere abolition of imprisonment for debt would not to my mind be a sufficient protection of the poor unless side by side of it were enacted a homestead law greatly enlarging the existing exemptions from execution of the tools and chattels of a working man. the idea is that the home furniture necessary to the lives of the human beings forming the home should be incapable of being seized for debt. make the limit twenty pounds or whatever sum you please but clearly enact that sufficient chattels to furnish a reasonable house are exempt from execution. in america and canada these homestead laws exist and work well. it occurs to our cousins across the pond that it is a better thing to keep a home together than to sell it up for an old song to pay official fees and costs and something on account to the foolish creditor. the returns from a poor auction of a workman's household furniture are miserable reading. the landlord by distress or the tally-man by execution may get a few shillings for himself and pay away a few more shillings to bailiffs and others, but the cost of it to the poor is cruel. tables and chairs and perhaps a sideboard that represent months of savings and long hours of labour are in a moment of misfortune snatched away from their proud possessor and his home is a ruin. the homestead laws in canada, though not the same in every state, go much further than any laws we possess to prevent the breaking up of a home. in manitoba, for instance, executions against lands are abolished, though land can be bound by a judgment by registering a certificate, and the household furniture and effects, not exceeding dollars in value, and all the necessary and ordinary clothing of the debtor and his family are exempt from execution. the actual residence or house of a citizen to the extent of , dollars is also exempt. imagine what an incentive it would be to the purchase of house property and furniture if a man were to know that his cottage to the value of three hundred pounds, and its contents to the extent of one hundred pounds, would always be protected from bailiff and sheriff. what a check, too, such legislation would be on the reckless way in which credit is given. one exception to this rule seems to me very fair. there is no exemption of anything the purchase price of which was the subject of the judgment proceeded upon. thus a man cannot buy a sideboard, refuse to pay the price of it, and claim exemption of the sideboard from execution by the furniture dealer who sold it, though he could claim exemption of the sideboard against a money lender who had obtained a judgment against him, and wanted to recover his debt by sweeping his home away. here in england people are driven to shifts and evasions by means of bills of sale, goods put in the wife's name, and a number of other semi-dishonest devices to protect their homes. the sight of a home broken up and the furniture that has cost so many years of saving slaughtered at a third-rate auction for little more than the costs and fees of the bailiffs is no great incentive to a working man to spend his savings on good, home-made chattels. cheap foreign shoddy on the hire system is the order of to-day, and as a mere matter of encouragement of the better class home trade in furniture, carpets, drapery and household goods generally, we might consider the advisability of taking a leaf out of the statute book of manitoba. that debt should never be allowed to utterly destroy a family and a home seems to me such a clear and sane idea that it has always been a puzzle to me to try and understand the point of view of those who cannot see the matter in the same light. i know it is a degrading confession for anyone with even the pretence of a judicial mind to have to make but it is best to be honest about it. i rather gather i am a little obsessed, or abnormal, or feeble-minded, or senile perhaps nowadays about anything that touches home or home life. the home to me is the great asset of the nation. i do not want to see the home superseded by state barracks or common hostels or district boarding schools. on the contrary, i think individual homes are good for the development of citizens. for this reason i would protect the home from ruin by an extravagant husband or an extravagant wife in the interests of the children, who are the next generation of citizens, and whose welfare is, therefore, a debenture of the state. nobody would think of distraining on a pheasant's nest, or breaking up the home of a couple of partridges, or imprisoning the birds at breeding time in separate coops and cutting down their food merely because one of the birds had run up a bill for too many mangel wurzels or the other had run into debt for some fine feathers beyond her means. pheasants and partridges are too valuable to be so treated. their nests are protected from any distress or execution by poachers, and their bodies are protected from arrest by watchful gamekeepers under strict laws. i want to insure under my reformed laws that the human nest should be protected in the same way, and that judges should not only be allowed, but ordered, to take care that the home is not devastated by human misfortune or even by improvidence. we want game laws for the poor. in future our legislators must treat them as game birds--as indeed most of them are--and not as vermin to be devoured, they and their children, by the owls and kites of the underworld in which they live. and the second clause of my magna charta would be of almost simpler dimensions than the first. it would run: "let it be enacted that the county courts have jurisdiction in divorce." this would at once place rich and poor on an equality that is not yet even aimed at. i should not complicate this matter with the overdue reforms proposed by the divorce commission, much as i should like to see those enacted. they are matters of general interest that have waited for so many years that there is not much hardship in holding them back further, but the institution of a new tribunal of divorce is of vital and immediate importance to the poor. the act would be a practically unopposed act of one clause. it would only touch one vested interest, the london lawyers of the divorce court, and it would greatly please their brethren throughout the country. all details of costs and machinery could be left to rule committees, as is the common practice in other and more important matters that have come to the county courts, such as admiralty and equity jurisdiction, and a hundred other really difficult and complicated matters. and then would follow a lot of simple but important reforms that really only need the stroke of the official pen that is never made until the man in the street rises in his wrath and knocks the official funny-bone on the official desk and wakens him up to the fact that it is officially time to do some official act. for, of course, police court fines must be cut down and time given to pay them, and police court costs must be paid by the community, and bankruptcies must be made available to the poor, and the treasury must cease to rob the poorest bankrupts of £ , a year, and the limit of such bankruptcies must be raised to £ , so that poor little business men and their creditors may get what there is, rather than it should all go in costs and fees and payments to lawyers and accountants, who must give up sparrow shooting and hunt for bigger game. and, above all, we must remember to engross in big black text on our parchment what joseph chamberlain said about his workmen's compensation act, that it is to be worked without lawyers, or at least, that it is to be made one of the judge's duties to see employer and workman first and endeavour to bring them together before he issues his fiat that the affair is "fit for litigation." this little programme surprises me by its moderation. how any society of business men could palaver about it in any palaverment for more than a week passes my comprehension. i commend my new magna charta to a party in want of a programme. if they carried it in the first week of their ministry and then adjourned for seven years to see how the world went on without them, they would be the most sensible and popular government since the days of alfred the great. chapter xvi remedies of to-morrow happy he whose inward ear angel comfortings can hear, o'er the rabble's laughter; and, while hatred's faggots burn, glimpses through the smoke discern of the good hereafter. knowing this, that never yet share of truth was vainly set in the world's wide fallow; after hands shall sow the seed, after hands from hill and mead reap the harvests yellow. thus, with somewhat of the seer, must the moral pioneer from the future borrow; clothe the waste with dreams of grain, and, on midnight's sky of rain, paint the golden morrow! john greenleaf whittier: "barclay of ury." i remember in my youth being told in the words of marcus aurelius: "be satisfied with your business and learn to love what you were bred to." at the time i may have resented the advice, but i have lived long enough to see the wisdom of it. personally, at that period, i should have liked to have been an engine driver or at least a railway guard; later on in years i had thoughts about carpentering; and in course of time water-colour painting, etching, playing the fiddle, and even golf seemed possible of attainment. but when you really learn that these higher ranks of life are closed to you by your own natural limitations and find out that your business in life is to be a drab official in an inferior court, then marcus aurelius is indeed grateful and comforting. one can, after many years of it, learn to love even the county court. you have much the same outlook and experience of life and human nature as the old bus driver. every day brings you new passengers who accompany you for a few minutes on the journey of life, and you get to know many old ones and have a friendly crack with them over their domestic troubles. moreover, at moments your daily job brings you in near touch with the joys and sorrows and trials and daily efforts of poor people, and once in a way perhaps you can be of use, which to a child and to a grown-up who has any of the child left in him is always a jolly thing. when you have really got quite accustomed to enjoying your work the natural garrulity which your friends lovingly attribute to senile decay stimulates you to make them partners in your joy. the narrow circle in which you spend your daily life has become your only world. you find yourself quoting with approval "with aged men is wisdom, and in length of days understanding," and you begin to believe you are the only person who really does understand. childlike, you find dragons in your path that you want to slay, pure and beautiful souls are oppressed, and you fancy that you can release them from bondage; there are giants of injustice and persecution in the land whose castles you mean to turn into peoples' palaces. then you sit down to write your fairy tales again--but no longer for the children nowadays, since they are all grown up. these fairy tales are for journalists, philanthropists and politicians who make fairy tales and live on fairy tales; and believe me, there are no more essential fairy tales than stories about legal reform. only to the writer are they real, and to one or two choice child spirits who never grow old and still believe in a world where everyone is going to live happily ever afterwards. the way in which master ogre, the law, swallows up the poor is quite like a real fairy tale, and it would have even a happier likeness to the fiction of the nursery if we could tell of a jack the giant killer cutting off the wicked monster's head and rescuing his victims. i am under no delusions that this little volume is going to do any particular good in any particular hurry. i know by historical study that the way of reform lies through official mazes of docket and précis and pigeon holes, that legislative decisions are hatched out in some bureaucratic incubator that the eye of common man has never seen. i reverence the mystery that surrounds these high matters. it is really good for us that we should know so little of the reason why things are no better than they are. and then how good our rulers are to us in the matter of royal commissions and blue books! at our own expense we may really have as many of these as we ask for. i wish i could get folk to understand what a lot of sterling entertainment there is in blue books. all the earnest ones, all the clever ones, all the cranky ones of this world set down their views and opinions on any subject at any distance from that subject, and wrangle and argue and cross-examine each other, and then the good government prints it for us all verbatim and sells it to us very very cheap. practically, i dislike the shape of a blue book, and æsthetically they do not match my library carpet when they are lying around, which is a disadvantage, but i must own that if i were banished to a desert island i would rather have my blue books than much of what is called classical literature. the evidence is the best reading--and when one comes to the final report i generally find the minority report to be the thing one is looking for, as it is usually the minority who want to do something. but in some subjects, divorce for instance, things are moving so hurriedly during these last few hundred years that actually there is a majority in favour of legislation and reform. not that this makes the slightest difference as to any actual reform being done. the feeling of security that nothing is ever going to come of it makes it a safe and reasonable thing to print the most advanced views at the expense of the state. the physical weight and size of these volumes have been carefully considered and the whole format cunningly designed to repel readers. nothing ever comes of blue books, and i do not suppose anything ever will come of them. when i turn over their dreary pages i find myself humming kipling's chorus-- and it all goes into the laundry, but it never comes out in the wash, 'ow we're sugared about by the old men ('eavy sterned amateur old men!) that 'amper an' 'inder an' scold men for fear o' stellenbosh. dickens had the same impatience of the heavy sterned brigade and invented his immortal circumlocution office, and doubtless genius is entitled to deride these substantial state institutions. personally, i find them very english and valuable. the more energetic of us may take our pleasure in giving friendly shoves to these heavy sterned christians, but their inert services to the community are not to be undervalued. but for this immovable official wall who knows what reforms, unnecessary and ill-advised, might have been carried through. if lord brougham could have had his way much that i am writing about to-day would long ago have happened. the heavy sterned ones sitting on the lid prevented the opening of the pandora box with its promises of affliction for the human race in the shape of legal reform. they have left these things over until to-day and brought me amusement for idle vacation hours. at least, let me be thankful to them and sing their praises. i remember when i was planning out these chapters being the victim of a most terrible nightmare. a newspaper with a king's speech in it was thrust before me and every one of the reforms i had already written about was promised to be passed within the session. i remember smiling in my dream, knowing what parliamentary promises were, and then as i was gliding down the strand a silent phantom newsboy handed me an evening paper. there it was in black and white, every bill was passed--there was nothing left to write about. i awoke with a cry. it was a terrible shock, and it was some moments of time before i could realise that such a thing was absolutely impossible. and, of course, when you think of the large number of things that you want done and recollect that nothing ever is done that a man really cares about in his own lifetime it was absurd of me, even in a dream, to believe that anything was coming between me and my little book. indeed, i have hopes that for many years to come it may be regarded as a popular primer about legal reform for future generations who wish to while away idle hours in the luxury of vain imagination. i should like to interest the man in the street about legal reform and to see him at work remedying some of the more obvious of the existing abuses i have referred to, but i am under no delusion that such reforms would bring about the millennium. it is good to do the pressing work in the vineyards on the slopes of the mountain, but it is permissible for poor human man to have his day off now and then to climb on the hilltops and gaze out on the limitless ocean of the future and indulge in wild surmises of the after-world. the remedies of to-day are really tiresome parochial affairs compared to the remedies of to-morrow and hardly seem worth troubling about when one considers that even if you passed them all this year in a century or two your new statutes would be out of date and only fit for the scrap heap. bacon tells us that time is the greatest of all innovators, but he does not explain to us why, unlike all human innovators, time is in no hurry about it. i have quite distinct beliefs, which to me are certainties, as to how time will reconcile the law and the poor in the centuries to come, when our social absurdities and wrong-doing will not even be remembered to be laughed at. the law will never be a really great influence for good until it is utterly conquered, put in its proper place in the world and based on the principle of love. in other words, when the law of love receives the royal assent no other law will be necessary. nineteen hundred years ago a new principle was introduced into the world. it was the principle of unselfishness, and its apostles were labour men. in relation to man's personal life it has made some progress, but in practical social politics its business value is not yet fully recognised. still, a beginning has been made, and that old snail, time, is doubtless satisfied with the pace of things. let us remember hopefully that two thousand years ago unselfishness as a basic principle of life, doing to others as you would be done by, promoting peace and good will instead of strife and ill will--these ideas as business propositions were as unknown then as railways, telegraphs, motor cars, and aeroplanes. a vision of to-day would have been a wild fairy tale to marcus aurelius, a vision of two thousand years hence would be incomprehensible to us. one does not mean, of course, that unselfishness had never before been preached as an ideal, but a society based on the common quality of all its members placing the interests of others above their own was a new notion, and the novelty of it has not yet worn off. nevertheless, love and unselfishness have achieved sufficient lip-service already to make me hopeful of their future, and i foresee a time when they will be the foundation of the laws of the world, and the preamble to every statute will be "blessed are the peacemakers." some day when the chinese send over a mission to heathen england, missionaries will go about the country destroying all the boards on which are written the wicked words "trespassers will be prosecuted." but i hope we may not have to wait for a foreign mission to teach us our duty. this phrase, typical of the law of to-day and eloquent of the claims of the rich to fence the poor off the face of the earth, must utterly disappear when the new spirit of the law is made manifest. we have no sense of humour. on sunday we intone to slow music our desire to forgive our enemy his trespasses; on monday we go down to our solicitor to issue a writ against him for the trespass we have failed to forgive. the old notice threatening prosecution is really already out of date. it ought, of course, to read, "trespassers will be forgiven." for my part if i met with such a notice, i should hesitate before i walked across the owner's land; whereas to-day, when i am threatened with prosecution, my bristles go up, i scent a right of way, and as like as not proceed in my trespassing out of pure cussedness. there are a lot of other folk besides myself who are built that way. i know a little girl of five whose chief glory in life is to walk "on the private," as she calls it, when the park-keeper is not looking. it is that constant "don't!" and "you mustn't" that rouses the rebel in us. the less forbidding there is, the easier the path of obedience. i hold no brief for trespassers. i know it is naughty to trespass. but in the present state of my evolution there is so much of the original monkey in me that when that "monkey is up," to use a phrase dear to cardinal newman, i go astray. so do many of my best friends. i have the same belief in the evolution of the moral world and its onward movement that i have in the revolution of the physical world and its rotary movement. for this reason i expect my great-grandchildren of two thousand years hence to be much better behaved than i am. you can see it coming along in your own grandchildren unless your sight is getting dim. and i am quite clear that my own manners are an improvement on my great grandfathers, who lived in caves, and, when they had disputes, made it clubs, and battered each other strenuously until it was proved which had the thickest skull, when he of the toughest cranium was adjudged to be in the right. the vigorous legal procedure of the cave men sounds laughable enough to us nowadays, but does anyone think that two thousand years hence superior unborn persons will not be smiling superciliously over the history books that record the doings of our judges, our hired counsellors, our sheriffs, our gaolers, and our hangman? it was only in the recent reign of good queen bess that the ordeal of battle was given up. the abolition of that old-world lawsuit must have been painful to the conservative mind. and there was a lot to say for it. from a sporting point of view, what could be better than to go down to tothill fields in westminster, as you might have done in , to see a. b. battering c. d. to the intent that whichever knocked the stuffing out of the other gained the verdict? if you look at it from a healthy, open-air point of view, maybe it was better for everybody than sitting in a stuffy court and listening to two bigwigs splitting hairs to the resultant financial ruin of one of their clients. one reason, no doubt, that trials by battle were abolished was that they gave the poor at least as good a chance as the rich. i remember a good story--it is an old one, but still quite good--of a noble lord and landowner who net a collier trespassing in the neighbourhood of wigan. "my good man," said my lord, "do you know you are trespassing?" "well, wot of it?" "you have no right to be walking across my land." "i'm like to be walking across somebody's land, i've noan o' me own." "well, you must not come across mine." "how do i know it is yours, and who gave it you?" "well, this land," replied the noble lord, "belonged to my father and grandfather and his father for many generations." "but how did thi' first grandfeyther get it?" persisted the collier. "well, as a matter of fact, it was granted by the king for services rendered. i may say," my lord added proudly, "that my ancestors fought for this land." "did they, now?" said the collier, "then tak off thi' coat an' i'll feight thee for a bit." one can see from this anecdote that it would never do to return to ordeal by battle. and though individual fighting by violence to assert rights is out of date and not permissible, yet in the affairs of the collection of human beings known as nations the horrible waste of armaments and the menace of war are living evidence of the ultimate tribunal to which we still appeal. no one really believes that force and violence are sane remedies for the evils of the world, and the whole history of mankind shows a gradual decline in the practice and use of them. in each succeeding generation our children will be nearer the truth than we are, and further on the journey towards the end when the rule of love and unselfishness will be the only law of the universe, and will enforce itself without judges, juries, or policemen. and lest anyone should say that all this is the mere vague raving of prophecy, let me set down a short, practical catalogue of what i expect the remedies of to-morrow to bring about in, say, two thousand years. in the first place, the disabilities of the poor that i have written about in these pages will all have been abolished and forgotten. crime will be regarded as a disease, and it will be as inhuman to treat the criminal with harshness as it is to-day to torture lunatics after the methods of a hundred years ago. every citizen will have a right to sufficient food, clothing, housing, and entertainment in exchange for reasonable hours of work. the spirit of humanity will so greatly have been improved that it will be very little necessary to extort proper conditions for the lives of citizens or to protect the weak from exploitation by the strong. litigation and war will be out of date and replaced by conciliation and arbitration. in a word, the reign of love and unselfishness will have commenced. we may not even see my beautiful world from afar, but this need not dismay us, for we know it is there, and we know that every effort we make to serve the cause of the poor helps to clear the path through the desert along which the coming armies of victory will march in triumph. the cause of the poor has always been the greatest cause in the world, and the generation that has at length understood it, and fought for it and won it, will find itself standing at the open gates of the promised land. index abinger, lord chief baron, his judgment in _priestley_ v. _fowler_, , , , ademantus, administration orders in bankruptcy, - alehouse, the, - "alton locke," slums described in, american judiciary and working classes, , , ; and workmen's compensation, appeals, cost of, artisans dwelling act, , asquith, right hon. herbert henry, on workmen's compensation, _attorney-general_ v. _the edison telephone co._, bacon, lord chancellor, bail, unnecessary refusal of, ; statistics of this, , balfour, right hon. arthur james, on intemperance, , bankruptcy, - ; failures due to extravagance, - ; not open to the poor, ; administration orders, ; exorbitant treasury fees, - bell, alexander graham, belloc, hilaire, bentham, jeremy, on legal evidence, bias in judges, - bills of sale acts, black act, , blasphemy laws, , blue books, , bradlaugh, charles, bridewell, the, - , bright, john, brougham, lord, on imprisonment for debt, , ; on the evidence amendment act, ; on chancery reform, , butler, samuel, cadaval, duke de, arrested on mesne process, _capias ad satisfaciendum_, , carlyle, thomas, on history, ; on language, , ; on fools, ; on land question, cattle maiming, - chamberlain, right hon. joseph, on workmen's compensation, - ; on administration orders, , ; is housing work in birmingham, chancery court, and lord brougham, children, treatment of, in workhouses, , closing time, regulations for rich and poor, , clough, arthur hugh, cobbett, sir william, coke, sir edward, chief justice, his description of _peine forte et dure_, , ; on early poor laws, , collier, sir robert, on imprisonment for debt, , "compleat constable," the, - conciliation in trade disputes, conciliation, preliminary of, in france, corporal punishment, advisability of, discussed, - costs in police court, abolition desirabie, cottenham, earl of, his insolvency bill, , - county court procedure, expense of, court of criminal appeal act, , , , crabbe, on lawyers, cranmer, thomas, archbishop of canterbury, on divorce, , , crime and punishment, - criminal appeal, court of, criminal evidence act, , - criminal law amendment act, cruelty to animals bill of , davey, lord, on workmen's compensation, deane, mr. justice bargrave, on divorce, debt, imprisonment for, old testament view of, ; new testament view of, ; greek law of, ; roman law of, ; in papal rome, ; in time of henry iii., - ; in eighteenth century, , ; in "pickwick," ; mesne process, ; debates on, in , ; in , - ; evils of, - ; arguments against abolition, - ; none in germany, ; nor in france, ; wastefulness of system, ; encourages improvidence, - ; in police courts, , ; political views on abolition of, - debtors act, , , - , debtors' prisons, - dendy, mr. registrar, on divorce in county court, denman, lord, speech on imprisonment for debt, dickens, charles, on imprisonment for debt, ; on the living wage, ; on the evidence of prisoners, ; on slums, ; on inns and innkeepers, - d'israeli, benjamin, slums described in "sybil," - distress, law of, divorce, - ; in time of edward vi., - ; act of , ; hard cases of poor, - ; necessity of using county court, - , dogberry, abolition of discussed, , edalji, edward vi., edward vii., eliot, george, elisha, and imprisonment for debt, , elizabeth, queen, her poor law, employers liability act, , erewhon, treatment of crime in, erskine, lord, and cruelty to animals, eviction, evidence, prisoners right to give, ; criminal evidence act, , ; of crown not available to prisoner, - exekestides, false pretences, , fielding, as a magistrate, _fieri facias_, fines in police courts, unfair incidence of, , ; time for payment of, ; statistics of, ; abolition of, france, no imprisonment for debt, ; divorce law, , ; preliminary of conciliation in, ; poor law, fuller, on burning of heretics, geographical distribution of crime, germany, no imprisonment for working men debtors, ; divorce in, gilbert, lord chief baron, , goldsmith, oliver, , gordon, cosmo, archbishop of york, on divorce, gordon, mr. justice, of australian labour court, governor of gaol, charity to poor debtors, grand jury, grantham, hon. mr. justice, ; on poor prisoners defence, gray, professor john chipman, of harvard, ; on judge-made law, haldane, viscount, , hale, sir matthew, lord chief justice, halsbury, earl of, on workmen's compensation, hard labour for unconvicted prisoners, , headlam, john, an old-fashioned dogberry, , , herschell, lord, on prisoners giving evidence, hogarth, , homestead laws of america and canada, , , hood, tom, horn, andrew, his "mirror of justices," housing question, - ; royal commission, , ; select committee, , identification of prisoners, present methods criticised, , imprisonment for debt. _see_ debt. innkeeper, independence of, jeremiah, and the living wage, , jessel, sir george, on imprisonment for debt, johnson, dr., ; on the poor in england, , ; on public executions, , ; on imprisonment for debt, ; on the formation of laws, johnson, william, miners' agent, his views on imprisonment for debt, judge-made law, - judgment summonses, statistics of, , judicial irrelevancy, judson, frederick n., author of "the judiciary and the people," justice of peace, utility of lay justices, kelvin, lord, kingsley, charles, ; on slums, ; on teetotallers, - , kipling, rudyard, landlord and tenant, - land transfer system, assists fraud, leniency to well to do in criminal courts, example of, , licensing, class regulation of, ; section of act of , ; effect of reducing number of licences, ; extension of hours for rich, ; prohibition of amusements, living wage, , , _lysons_ v. _andrew knowles_, mcmahon, m.p., on imprisonment for debt, malicious injury to property, , manitoba, homestead laws of, , marcus aurelius, , married women's property act, undesirable use of, - matthew, and imprisonment for debt, , maule, mr. justice, on divorce, maxwell, rev. dr., , mayence, public beer drinking at, medical officer of health, status of, menander, on marriage, mesne process, arrest on, ; abolished, mesnil, m. henri, on divorce, moryson, fynes, , , , newman, cardinal, ordeal of battle, , overbury, sir thomas, overcrowding, ; census statistics of, parry, serjeant, _peine forte et dure_, pepys, samuel, pickersgill, m.p., on prisoner giving evidence, pickwick, and imprisonment for debt, , piers plowman, on debt, ; on law and poor, , ; on lawyers, police courts, abolition of fines, poor law, - ; royal commission, report of, ; in time of elizabeth, ; in eighteenth century, ; in , ; general mixed workhouses, - poor man's lawyer, necessity of, - poor prisoners defence act, - _priestley_ v. _fowler_, - procedure and the poor, - public houses, - . _and see_ licensing. railway conciliation boards, and their working, , raleigh, sir walter, , _regina_ v. _thomas hall_, registrars of county courts and private practice, , "reformatio legum ecclesasticarum, the," ridley, sir matthew white, on workmen's compensation, rivers pollution acts, roe, gilbert, author of "our judicial oligarchy," , rogues and vagabonds, - ruskin, john, sabbatarianism, evils of, salford quarter sessions in , salisbury, earl of, , schuster, dr., on german system of debt collecting, scold, common, trial and punishment of, scots divorce, scott, sir william, _seisachtheia, the_, selden, john, on marriage contract, shop lifting by ladies, sims, george r., his "how the poor live," , _sittlichkeit_, slums, legislation against, smith, judge lumley, on divorce costs, , smith, rev. sidney, on prisoners' right to counsel, , ; on prisoners' inability to give evidence, smith, sir a. l., master of the rolls, on workmen's compensation, smollett, , snowden, philip, m.p., and the living wage, ; on strikes, socrates, on thirst, solicitors, speculative, solon, and imprisonment for debt, - starkie, sir thomas, stephen, mr. justice, decision in telephone case, stipendiary magistrates, want of in country, ; necessary in interests of justice, sumner, lord, , swift, on lawyers, , taylor, jeremy, his prayer for debtors, teetotallers, persecution of licence holders by, ; their ideals, ; charles kingsley's views of, - , telephone, legal position of, , tennant, mrs., report on divorce, thackeray, on prisoner giving evidence, torrens act, , treasury fees on administration orders, exorbitancy of, - , twelve tables, the, tyburn, , , vinogradoff, professor, warrington, harry, imprisonment for debt, , webb, mrs. sidney, her report on poor law, weston, richard, trial of, , whipping, punishment of, - , - witchcraft, workhouses, - . _and see_ poor law. workmen's compensation, - ; history of the law, of, - ; employers liability, ; in court of appeal, - ; in america, , ; , ; and conciliation, wyrley, cattle maiming at, york, archbishop of, on divorce, , bradbury, agnew & co. ld., printers, london and tonbridge. crown vo. illustrated. pp. price _s._ presentation edition, white vellum, _s._ net. letters from dorothy osborne to sir william temple. _pall mall gazette._--"we trust the new and beautiful issue of an ever-fragrant book will give it yet more readers and lovers than it has had before." butter-scotia, or a cheap trip to fairyland. pages. with a map of butter-scotia, many full-page plates and illustrations in the text. bound in specially designed cloth cover. _s._ second edition, pages, cloth. _s._ _d._ katawampus: its treatment and cure. _the world._--"one of the very best books of the season." _saturday review._--"the book is one of rare drollery, and the verses and pictures are capital of their kind." _pall mall gazette._--"a truly delightful little book...." with beautifully coloured plates by walter crane. price _s._ the story of don quixote retold. crown vo. pp. price _s._ _d._ lamb's tales from shakespeare. illustrated by a. rusden. crown to. price _s._ _d._ net. pater's book of rhymes. christmas stories for children of all ages. the first book of krab. pages, with many full-page plates and illustrations in the text. bound in specially designed cloth cover, _s._ _d._ royal vo. price _s._ katawampus kanticles. music by sir j. f. bridge, mus.doc., organist of westminster abbey. words by his honour judge e. a. parry. illustrated cover, representing kapellmeister krabb, by archie maccregor. may be obtained from sherratt & hughes, , soho sq., london w., , cross st., manchester, or all booksellers. _works by the same author._ nd impression. large post vo. _s._ _d._ net. judgments in vacation. some press opinions. _athenæum._--"they deal among other topics with the letters of dorothy osborne, the disadvantage of education, the craftsmanship of the drama and the nice problems of the kitchen; and they all possess a lightness of touch and sense of companionableness which makes them agreeable reading." g. k. chesterton in _illustrated london news_.--"i cannot refrain from imploring my readers to get hold of judge parry's 'judgments in vacation,' it is extraordinarily good." _morning leader._--"literature and law jostle each other with a delightful air of indifference." _the standard._--"it is a rollicking book." _daily graphic._--"a wide range of knowledge and experience and a faculty of literary skill unite to make this collection of his papers exceedingly readable." _manchester guardian._--"it is all very jolly and irresponsible." _eye-witness._--"but it is not only a witty, sparkling book, it is a human document in which the tragedy of the poor, their never-ending debts, their hopeless yet patient insolvency is sketched with a profound insight, a living sympathy." _westminster gazette._--"but perhaps we have said enough to show that for an hour or two by the fire the book is all good company." _liverpool daily post and mercury._--"the essays and papers in his honour's book are in every way worthy of the bright humour, vivacity and literary skill we are wont to associate with the name of the admirable crichton of the county court bench." _the spectator._--"judge parry deals with various subjects, social, literary and other, and has something worth hearing to say about all of them." _daily telegraph._--"whether his themes are grave or gay, the mood in which he treats them lively or severe, judge parry is invariably interesting, and his volume should be widely read." second impression in the press. large post vo. _s._ _d._ _net._ what the judge saw: being years in manchester, by one who has done it. _pall mall gazette._--"a rollicking story. a book full of frolic and fun. this is the best book of legal recollections, we believe, since the 'leaves' of montagu williams, and we know no higher praise." _daily chronicle._--"the book is diverting and well strewn with personalities. 'if your lordship pleases,' give us another volume like this. it bespeaks a human man with a good heart as well as a clever head." the scarlet herring, and other stories. illustrated by athelstan rusden. pp. bound in specially designed cloth cover. price _s._ london: smith, elder & co. , waterloo place, s.w. transcriber's notes: passages in italics are indicated by _italics_. the following misprints have been corrected: " ast" interpreted as "past" (page ) "suceed" corrected to "succeed" (page ) "gods" corrected to "goods" (page ) "absolutley" corrected to "absolutely" (page ) "paliament" corrected to "parliament" (page ) other than the corrections listed above, inconsistencies in spelling and hyphenation have been retained from the original. https://archive.org/details/earlywesterntrav thwa early western travels - volume xxx early western travels - a series of annotated reprints of some of the best and rarest contemporary volumes of travel, descriptive of the aborigines and social and economic conditions in the middle and far west, during the period of early american settlement edited with notes, introductions, index, etc., by reuben gold thwaites, ll. d. editor of "the jesuit relations and allied documents," "original journals of the lewis and clark expedition," "hennepin's new discovery," etc. volume xxx palmer's journal of travels over the rocky mountains, - [illustration: decoration] cleveland, ohio the arthur h. clark company copyright , by the arthur h. clark company all rights reserved the lakeside press r. r. donnelley & sons company chicago contents of volume xxx preface. _the editor_ journal of travels over the rocky mountains, to the mouth of the columbia river; made during the years and : containing minute descriptions of the valleys of the willamette, umpqua, and clamet; a general description of oregon territory; its inhabitants, climate, soil, productions, etc., etc.; a list of necessary outfits for emigrants; and a table of distances from camp to camp on the route. also; a letter from the rev. h. h. spalding, resident missionary, for the last ten years, among the nez percé tribe of indians, on the kooskooskee river; the organic laws of oregon territory; tables of about words of the chinook jargon, and about words of the nez percé language; a description of mount hood; incidents of travel, &c., &c. _joel palmer._ copyright notice author's dedication publishers' advertisement text: journal, april , -july , necessary outfits for emigrants traveling to oregon words used in the chinook jargon words used in the nez percé language table of distances from independence, missouri; and st. joseph, to oregon city, in oregon territory appendix: letter of the rev. h. h. spalding to joel palmer, oregon territory, april , organic laws of oregon (with amendments). illustration to volume xxx facsimile of title-page, palmer's journal of travels. preface to volume xxx in the wake of the pathfinders, fur-traders, indian scouts, missionaries, scientific visitors, and foreign adventurers came the ultimate figure among early western travellers, the american pioneer settler, the fore-runner of the forces of occupation and civilization. this concluding volume in our series is, therefore, fitly devoted to the record of an actual home-seeker, and founder of new western communities. the significant feature of american history has been the transplanting of bodies of colonists from one frontier to a newer frontier. in respect to the oregon country, our interest therein is enhanced not only by the great distance and the abundant perils of the way, but also by the political result in securing the territory to the united states, and the growth of a prosperous commonwealth in the far northwest corner of our broad domain. in several previous volumes of our series we have witnessed the beginnings of oregon civilization. two of our travellers, franchère and ross, have graphically detailed the astoria episode, giving us, not without some literary skill, the skeleton of facts which irving's masterful pen clothed with living flesh and healthful color; in townsend's pages we found an enduring picture of the régime of the all-powerful hudson's bay company; de smet, with faithful, indeed loving, touches has portrayed the vanishing aborigines, whose sad story has yet fully to be told--eventually, when the last vestige of their race has gone, we shall come to recognize the tale as the sorriest chapter in our annals; farnham shrewdly narrates the sharp transition to american occupancy; but palmer tells us of the triumphant progress of the conquering pioneer, and in his pages the destiny of oregon as an american state is clearly foreshadowed. "fifty-four forty, or fight," the belligerent slogan with regard to oregon, adopted in the presidential campaign of , was after all not so much a notice to the british government that the united states considered the oregon country her own, beyond recall, as an appeal to the pioneers of the west to secure this vast inheritance by actual occupation. as such it proved a trumpet call to thousands of vigorous american farmers, most of them already possessed of comfortable homes in the growing communities of the middle west. "i have an uncle," declared one of the pioneers to dr. john mcloughlin, hudson's bay factor on the pacific coast, "who is rich enough to buy out your company and all this territory." "indeed!" replied the doctor, courteously, "who is he?" "uncle sam," gayly responded the emigrant, with huge enjoyment in his well-worn witticism. it was at the supposed behest of this same "uncle sam" that farms were sold, wagons and oxen purchased, outfits prepared, and long caravans of permanent settlers slowly and painfully crossed the vast plains and rugged mountains lying between the comfortable settlements of the "old northwest"--the "middle west" of our day--and the new land of promise in the far northwest of the pacific slope. the emigration of exceeded all that had gone before. that of , eight hundred strong, had startled the indians, and surprised the staid officials of the hudson's bay company. that of had occupied the fertile valleys from puget sound on the north to calapooia on the south. that of determined that the territory should be the home of americans; it doubled the population already on the ground, reinforced the compact form of government, and laid broad and deep the foundations of new american commonwealths. our author, joel palmer, a shrewd, genial farmer from indiana, was a leader among these emigrants of . born across the canada line in , he nevertheless was of new york parentage, and american to the core. in early life his family removed to indiana, where joel founded a home at laurel, in northwest franklin county. by the suffrages of his neighbors palmer was sent to the state legislature in , but the following year determined to make a tour to oregon for personal observation, before deciding to remove his family thither and cast his future lot with its pioneer settlers. arrived on the missouri frontier, he found that the usual wagon train had gone in advance. however, he overtook the great body of the emigrants in time to assist in the organization of the caravan on big soldier's creek, in kansas. gathered from all parts of the middle west, with no attempt at organization nor any pre-arrangement whatsoever, the emigrants, who had not yet forgotten the frontier traditions of their fathers, proved to be a homogeneous body of about three thousand alert, capable travellers, provided in general with necessities and even comforts for the hardships of the long journey; indeed, after the manner of their aryan forbears in the great westerly migrations of the past, they were accompanied by herds of cattle, to form the basis of agricultural life in the new land. each of the several hundred wagons was a travelling house, provided with tents, beds, and cooking utensils; clothing and food were also carried, sufficient not only for the journey out, but for subsistence through the first year, always the crucial stage of agricultural pioneering. the draught cattle were largely oxen, but many of the men rode horses, and others drove them with their cows and bulls. aside from the duties of the nightly encampment and morning "catch-up," life upon the migration progressed much as in settled communities. there were instances of courtship, marriage, illness, and death, and not infrequently births, among the migrating families. these, together with the ever-shifting panorama of sky, plains, and mountains, made the incidents of the long and tedious journey. occasionally there appeared upon the horizon an indian gazing silently at these invaders of his tribal domain, and at times he came even to the wagon wheels to beg or trade; the mere numbers of the travellers gave him abundant caution not to attempt hostilities. the wagons were so numerous as to render a compact caravan troublesome to manage and disagreeable to travel with. the great cavalcade soon broke into smaller groups, over one of which, composed of thirty wagons, palmer was chosen captain. at fort laramie they rested, and feasted the indians, who, in wonderment and not unnatural consternation, swarmed about them in the guise of beggars. palmer afterwards harangued the aboriginal visitors, telling them frankly that their entertainers were no traders, they "were going to plough and plant the ground," that their relatives were coming behind them, and these he hoped the red men would treat kindly and allow free passage--a thinly veiled suggestion that the white army of occupation had come to stay and must not be interfered with by the native population, or vengeance would follow. from fort laramie the invaders, for from the standpoint of the indians such of course were our western pioneers, followed the usual trail to the newly-established supply depot at fort bridger. thence they went by way of soda springs to fort hall, where was found awaiting them a delegation from california, seeking, with but slight success, to persuade a portion of the emigrants in that direction. following lewis river on its long southern bend, the travellers at last reached fort boise, where provisions could be purchased from hudson's bay officials, and a final breathing-spell be taken before attempting the most difficult part of the journey--the passage of the blue and cascade ranges. a considerable company of the emigrants, accompanied by the pilot, stephen h. meek, left the main party near fort hall, to force a new route to the willamette without following columbia river. the essay was, however, disastrous. meek became bewildered, and was obliged to secrete himself to escape the revenge of the exasperated travellers, who reached the dalles of the columbia in an exhausted condition, having lost many of their number through hunger and physical hardships. palmer himself continued with the main caravan on the customary route through the grande ronde, down the umatilla and the columbia, arriving at the dalles by the closing days of september. here a new difficulty faced the weary pioneers--there was no wagon road beyond the dalles; boats to transport the intending colonists were few, and had been pre-empted by the early arrivals, while provisions at the dalles would soon be exhausted. in this situation palmer determined to join samuel k. barlow and his company in an attempt to cross the cascades south of mount hood, and lead the way overland to the willamette valley. this proved an arduous task, calling for all the skill and fortitude of experienced pathfinders. in its course, palmer ascended mount hood, which he describes as "a sight more nobly grand" than any he had ever looked upon. at last the valley of the clackamas was reached, and oregon city, the little capital of the new territory, was attained, where "we were so filled with gratitude that we had reached the settlements of the white man, and with admiration at the appearance of the large sheet of water rolling over the falls, that we stopped, and in this moment of happiness recounted our toils, in thought, with more rapidity than tongue can express or pen write." the distance that he had travelled from independence, missouri, our author estimates at , miles. passing the winter of - in oregon, palmer made a careful examination of its resources, and in his book describes the country in much detail. the ensuing spring, after a journey to the lapwai mission for horses, he started on the return route, arriving at his home in laurel, indiana, upon the twenty-third of july. palmer's experience, although trying, had been sufficiently satisfactory to justify his intention to make a permanent home in oregon. in he took his family thither, the emigration of that year being sometimes known as "palmer's train," he having been elected captain of the entire caravan, also in recognition of his great utility to the expedition. the new caravan had but just arrived in oregon--now belonging definitely to the united states--when the whitman massacre aroused the colonists to punish the indian participants in order to ensure their own safety. in the organization of the militia force, joel palmer was chosen quartermaster and commissary general, whence the title of general, by which he was subsequently known. he was also made one of two commissioners to attempt to treat with the recalcitrant tribes, and win to neutrality as many as possible. accompanied by dr. robert newell, a former mountain man, and perrin whitman, the murdered man's nephew, as interpreter, palmer risked his life in the land of the hostiles, and succeeded in alienating many nez percés and wallawalla from the guilty cayuse. thus was laid the foundation of that full knowledge of aboriginal character that availed him in his service as united states superintendent of indians for oregon. to this difficult position general palmer was appointed by president pierce in , just on the eve of an outbreak in southern oregon, and his term of office coincided with the period of indian wars. after pacifying the southern tribes, palmer inaugurated the reservation system, removing the remnants of the tribes of the willamette valley and their southward neighbors to a large tract in polk and yamhill counties, known as grande ronde reservation. this ended the indian difficulties in that quarter until the modoc war, twenty years later. palmer found the tribesmen east of the mountains more difficult to subdue. scarcely had he and isaac t. stevens, governor of washington territory, made a series of treaties ( ) with the nez percés, cayuse, wallawalla, and neighboring tribes, when the yakima war began, and embroiled both territories until . during these difficulties the military authorities complained that commissioner palmer was too lenient with former hostiles, and pinned too much faith to their promises. consequently the oregon superintendency was merged with that of washington ( ), and james w. nesmith appointed to the combined office. retiring to his home in dayton, yamhill county, which town he had laid out in , general palmer was soon called upon to serve in the state legislature, being speaker of the house of representatives ( - ), and state senator ( - ). during the latter incumbency he declined being a candidate for united states senator, because of his belief that a person already holding a public office of emolument should not during his term be elected to another. in he was republican candidate for governor of the state, but was defeated by a majority of less than seven hundred votes. from this time forward he lived quietly at dayton, and there passed away upon the ninth of june, . his excellent portrait given in lyman's _history of oregon_ (iii, p. ) is that of an old man; but the face is still strong and kindly, with a high and broad forehead, and gentle yet piercing eyes. one of palmer's fellow pioneers said of him, "he was a man of ardent temperament, strong friendships, and full of hope and confidence in his fellow men." another calls his greatest characteristic his honesty and integrity. widely known and respected in the entire north-west, his services in the up-building of the new community were of large import. not the least of these services was, in our judgment, the publication of his _journal of travels over the rocky mountains_, herein reprinted, which was compiled during the winter of - , and planned as a guide for intending emigrants. the author hoped to have it in readiness for the train of , but the publishers were dilatory and he only received about a dozen copies before starting. the book proved useful enough, however, to require two later editions, one in , another in , and was much used by emigrants of the sixth decade of the past century. palmer makes no pretence of literary finish. he gives us a simple narrative of each day's happenings during his own first journey in , taking especial care to indicate the route, each night's camping places, and all possible cut-offs, springs, grassy oases, and whatever else might conduce to the well-being of the emigrant and his beasts. the great care taken by the author, with this very practical end in view, results in his volume being the most complete description of the oregon trail that we now possess. later, his account of passing around mount hood and the initial survey of the barlow road, produces a marked effect through its simplicity of narrative. his incidents have a quaint individuality, as for instance the reproof from the cayuse chief for the impiety of card-playing. no better description of the willamette valley can be found than in these pages, and our author's records of the climate, early prices in oregon, and the necessities of an emigrant's outfit, complete a graphic picture of pioneering days. in the annotation of the present volume, we have had valuable suggestions and some material help from principal william i. marshall of chicago, professor edmond s. meany of the university of washington, mr. george h. himes of portland, dr. joseph schafer of the university of oregon, and mr. edward huggins, a veteran hudson's bay company official at fort nisqually. with this volume our series of narratives ends, save for the general index reserved for volume xxxi. the western travels which began in tentative excursions into the indian country around pittsburg and eastern ohio in , have carried us to the coast of the pacific. the continent has been spanned. not without some exhibitions of wanton cruelty on the part of the whites have the aborigines been pushed from their fertile seats and driven to the mountain wall. the american frontier has steadily retreated--at first from the alleghanies to the middle west, thence across the mississippi, and now at the close of our series it is ascending the missouri and has sent vanguards to the farthest northwest. the ruts of caravan routes have been deeply sunk into the plains and deserts, and wheel marks are visible through the length of several mountain passes. the greater part of the continental interior has been threaded and mapped. the era of railroad building and the engineer is at hand. the long journey to the western ocean has been ridded of much of its peril, and is less a question of mighty endurance than confronted the pathfinders. when francis parkman, the historian of new france, going out upon the first stages of the oregon trail in --the year following the date of the present volume--saw emigrant wagons fitted with rocking chairs and cooking stoves, he foresaw the advent of the commonplace upon the plains, and the end of the romance of early western travels. throughout the entire task of preparing for the press this series of reprints, the editor has had the assistance of louise phelps kellogg, ph. d., a member of his staff in the wisconsin historical library. others have also rendered editorial aid, duly acknowledged in the several volumes as occasion arose; but from beginning to end, particularly in the matter of annotation, dr. kellogg has been his principal research colleague, and he takes great pleasure in asking for her a generous share of whatever credit may accrue from the undertaking. annie amelia nunns, a. b., also of his library staff, has rendered most valuable expert aid, chiefly in proofreading and indexing. the editor cannot close his last word to the reader without gratefully calling attention, as well, to the admirable mechanical and artistic dress with which his friends the publishers have generously clothed the series, and to bear witness to their kindly suggestions, active assistance, and unwearied patience, during the several years of preparation and publication. r. g. t. madison, wis., august, . palmer's journal of travels over the rocky mountains, - reprint of original edition: cincinnati, journal of travels over the rocky mountains, to the mouth of the columbia river; made during the years and : containing minute descriptions of the valleys of the willamette, umpqua, and clamet; a general description of oregon territory; its inhabitants, climate, soil, productions, etc., etc.; a list of necessary outfits for emigrants; and a table of distances from camp to camp on the route. also; a letter from the rev. h. h. spalding, resident missionary, for the last ten years, among the nez percé tribe of indians, on the kooskooskee river; the organic laws of oregon territory, tables of about words of the chinook jargon, and about words of the nez percé language; a description of mount hood; incidents of travel, &c., &c. by joel palmer. cincinnati: j. a. & u. p. james, walnut street, between fourth and fifth. . entered, according to act of congress, in the year , by j. a. & u. p. james, in the clerk's office of the district court of ohio. to the pioneers of the west, and their descendants, the bone and muscle of the community, who improve and enrich the country in peace, and protect and defend it in war, this work is respectfully dedicated. publishers' advertisement in offering to the public a new work on oregon, the publishers feel confident that they are performing an acceptable service to all who are desirous of obtaining full and correct information of that extensive and interesting region. the facts contained in this journal of travels over the rocky mountains were obtained, by the author, from personal inspection and observation; or derived from intelligent persons, some of whom had resided in the country for ten years previously. it contains, as is believed, much very valuable information never before published, respecting the oregon territory. mr. palmer's statements and descriptions are direct and clear, and may be relied on for their accuracy. he observed with the eye of an intelligent farmer the hills and valleys; timbered land and prairies, soil, grass, mill sites, &c.; all of which he has particularly described. to the man about to emigrate to oregon just the kind of information needed is given. he is informed what is the best season for setting out; the kinds and quantities of necessary outfits; where they may be purchased to the best advantage, so as to save money, time and useless hauling of provisions, and to promote comfort and prevent suffering on the long journey. {vi} a particular account of oregon city is given; the number of houses and inhabitants; the number and kinds of mechanical trades carried on; and the prices current during the author's stay there. the objects of natural curiosity on the route--the solitary tower--the chimney rock--independence rock--the hot springs--the devil's gate--the south pass--the soda springs, and many others--are noticed. the work is enlivened with anecdotes of mountaineer life--shooting buffalo--hunting bear--taking fish, &c. mr. palmer made the ascent of one of the highest peaks of mount hood, almost alone, and with a very scanty supply of provisions. an extraordinary achievement, when the circumstances under which it was accomplished are taken into consideration. _cincinnati, january, ._ journal of travels over the rocky mountains having concluded, from the best information i was able to obtain, that the oregon territory offers great inducements to emigrants, i determined to visit it with a view of satisfying myself in regard to it, and of ascertaining by personal observation whether its advantages were sufficient to warrant me in the effort to make it my future home.[ ] i started, accordingly, on the morning of the th of april, , in company with mr. spencer buckley. we expected to be joined by several young men from rushville, ind., but they all abandoned the enterprise, and gave us no other encouragement than their good wishes for our success and safety. i took leave of my family, friends and home, with a truly melancholy heart. i had long looked forward and suffered in imagination the pain of this anticipated separation; but i had not tasted of its _realities_, and none but those who have parted with a family under similar circumstances, can form any just conception of the depth and power of the emotions which pervaded my breast on that occasion. the undertaking before me was arduous. it _might_ and doubtless _would_ be attended with various and unknown difficulties, privations and dangers. a doubt arose in my mind, whether the advantages, which were expected to result from the trip, would be likely to compensate for the time and expense necessary to accomplish it: but i believed that i was right, hoped for the best, and pressed onward. we were favoured with a pleasant day and good roads, which tended in some degree to dissipate the gloom which { } had weighed down my spirits upon leaving _home_. our day's travel ended at blue river, on the banks of which we encamped for the first time on the long and tedious journey before us.[ ] _april ._ arrived at indianapolis, in the afternoon, where we expected to meet a number of persons, who had expressed a determination to join the party.[ ] but here too, as in the case of our rushville friends, we were doomed to meet disappointment;--not one was found willing to join us in our expedition. after having had our horses well shod, (we traveled in an ordinary wagon drawn by two horses,) and having laid in a supply of medicines, we put up for the night. _april ._ we this day had a sample of what might be called the _mishaps_ of travelers--an encounter with a wild animal, the first which we met in our journey. one of our horses becoming lame, we were obliged to trade him away, and received in exchange one so wild, that it required the greatest vigilance and exertion on our part to prevent him from running away with our whole concern. we reached mount meridian after a day's journey of about thirty-four miles, during which we succeeded admirably in taming our wild horse.[ ] _april ._ reached the mississippi, opposite to st. louis, having traveled daily, and made the best of our time after leaving mount meridian. _april ._ we made a few purchases this morning, consisting chiefly of indian trinkets, tobacco, powder, lead, &c. and, soon after, resumed our journey upon the road to st. charles, the seat of justice for st. charles county.[ ] we reached this place at the close of the day, and encamped upon the banks of the missouri, which appears to be about as wide as the ohio at cincinnati, in a fair stage of water; the current is quite strong; the water very thick and muddy. here, we overtook a company of germans, from st. louis, who had started for california. the company consisted of four men, two women and three children; they traveled with a wagon drawn by six mules, and a cart drawn by two,--a very poor means of conveyance for such a long and tedious route. we traveled the same road until we reached fort hall. _april ._ at nine o'clock a. m. we crossed the river and traveled twenty-eight miles. the surface of the country is somewhat undulating; the soil, though poorly watered, appears to be good, and produces respectable crops. _april ._ we traveled thirty-one miles. the day was rainy { } and unpleasant. the country through which we passed is a rolling prairie: some parts of it are very well timbered. on account of the scarcity of springs, the people rely generally upon their supplies of _rain_ water. there we were joined by a clever backwoodsman, by the name of dodson, who was making the best of his lonely journey to join an emigrating party at independence; upon his consenting to bear an equal share in our expenses and outfit at that place, we took him in, and traveled together. _april ._ we started this morning at sunrise, and traveled to lute creek, a distance of six and a half miles.[ ] this stream was so much swollen, in consequence of the recent rains, that we were unable to ford it, and were forced to encamp upon its banks, and remain all day. while there, we were greatly annoyed by the _wood-tick_--an insect resembling, in size and in other respects, the _sheep-tick_. these insects, with which the bushes and even the ground seemed to be covered, fastened themselves with such tenacity upon our flesh, that when picking them off in the morning, the head would remain sticking fast to the skin, causing in most cases a painful wound. _april ._ we traveled about twenty-six miles, through a gently undulating country: the principal crops consisted of corn, oats, tobacco and some wheat. we passed through williamsburgh and fulton. the latter town is the seat of justice for callaway county.[ ] _april ._ we made an advance of about thirty miles through a well timbered country, and passed through columbia, the seat of justice for boone county. the town is pleasant and surrounded by a fertile and attractive country. we made our halt and encamped for the night, five miles westward of this town. _may ._ we started this morning at the usual hour, and after a ride of eight miles, reached and re-crossed the missouri, at rocheport, and continued our journey until night, passing through booneville, the county seat of cooper--a rich and fertile county, making in all a ride of twenty-six miles.[ ] _may ._ passed through the town of marshall, the seat of justice for saline county. the town stands upon an elevated prairie, upon which may be found a few groves of shrubby timber. the country upon this [the west] side appeared to be much better supplied with water, than that upon the east side.[ ] _may ._ we traveled about twenty-eight miles, over a thinly-settled { } prairie country. the crops, cultivated generally by negroes, consisted of hemp, corn, oats, and a little wheat and tobacco. the soil appeared to be good, but the scarcity of timber will prove a serious barrier to a complete settlement of the country. _may ._ we traveled twenty-three miles this day, through a better improved and pleasanter part of missouri, than any we have yet seen. the crops appeared well; there were fine orchards under successful cultivation. the country is well timbered, and there appears nothing to hinder it from becoming the seat of a dense and thriving population. _may ._ reached independence at nine o'clock a.m.;[ ] and as the main body of emigrants had left a few days previous, we hastily laid in our supplies, and at five o'clock p. m., pushed forward about two miles, and encamped upon the banks of a small creek, in company with four wagons, bound for oregon. from one of the wagons they drew forth a large jug of whiskey, and before bed-time all the men were completely intoxicated. in the crowd was a mountaineer, who gave us a few lessons in the first chapter of a life among the mountains. at midnight, when all were quiet, i wrapped myself in my blanket, laid down under an oak tree, and began to realize that i was on my journey to oregon. _may ._ after traveling about fifteen miles we halted and procured an extra set of horse-shoes, and a few additional wagon bows. the main body of the emigrants is twenty-five miles in advance of us: we have now passed out of missouri, and are traveling in an indian country--most of which is a rolling prairie.[ ] _may ._ we started at seven o'clock, a. m. and traveled about twenty miles. towards evening we overtook an emigrating company, consisting of thirty-eight wagons, with about one thousand head of loose cattle, all under the direction of a mr. brown. we passed this company, expecting to overtake a company of about one hundred wagons, which were but a few miles before us. the night, however, became so dark that we were compelled to encamp upon the prairie. soon after we had staked our horses, a herd of wild indian horses came galloping furiously by us, which so alarmed our horses and mules, that they broke loose and ran away after them. dodson and myself pursued, but were distanced, and after running two or three miles, abandoned the chase as hopeless, and attempted to return to the camp. owing to the darkness, we { } were unable to find our camp, until the night had far advanced; and when we finally reached it, it required all my logic, supported by the positive testimony of buckley, to convince dodson that we were actually there. _may ._ at daylight, dodson and i resumed the search for our lost stock. after a fatiguing tramp of several hours, i came upon _one_ of the mules, which being hobbled, had been unable to keep with the herd. dodson was unsuccessful, and returned to camp before me; during our absence, however, the herd had strolled near the camp, and buckley had succeeded in taking our two _horses_. having taken some refreshments, we started again in search of the lost animals. as i was returning to camp, hopeless, weary and hungry, i saw at a distance dodson and buckley mounted upon our two horses, and giving chase to the herd of indian horses, among which were our two mules. the scene was wild, romantic and exciting. the race was untrammeled by any of those arbitrary and useless rules with which the "knights of the turf" encumber their races, and was pursued on both sides, for a nobler purpose; it was to decide between the rights of _property_ on the one side, and the rights of _liberty_ on the other. the contest was for a long time doubtful; but the herd finally succeeded in winning the race, and poor buckley and dodson were compelled to yield; the former having lost his reputation as a sportsman, and the latter--what grieved him more,--his _team_; and _both_ had ruined the character of their coursers in suffering them to be beaten. sad and dispirited, they returned to camp, where, after a short consultation, it was unanimously resolved,--inasmuch as there was no _other_ alternative,--to suffer the mules freely and forever to enjoy the enlarged liberty which they had so nobly won. the day was nearly spent, but we harnessed up our team and traveled four miles, to the crossing of a creek, where we encamped for the night. _may ._ re-considered our resolution of last evening, and spent the morning looking for the mules--re-adopted the _same_ resolution, for the _same_ reason, and then resumed our journey. we advanced about eighteen miles through a very fertile and well watered country, and possessing, along the banks of the water courses, a supply of bur and white oak, ash, elm, and black walnut timber, amply sufficient for all practical purposes. in our travel, we crossed a stream called the walkarusha, extending back from which, about two miles in width, { } we discovered a fine bottom covered with heavy bur oak and black walnut timber. after passing through this bottom, the trail strikes into a level and beautiful prairie, and crossing it--a distance of four miles--rises gradually to the ridge between the walkarusha and the caw, or kansas river.[ ] we encamped upon the ridge, in full view of the two streams, which at this place are from six to eight miles apart. the banks of both streams, as far as can be seen, are lined, either way, with excellent timber: the country rises gradually from the streams, for fifteen or twenty miles, with alternate forests and prairies, presenting to the eye a truly splendid scene. i noticed here almost a countless number of _mounds_, in different directions--some covered with timber, others with long grass. the caw or kansas indians dwell along these streams. through this part of the route there are _two_ trails, uniting near our camp; the difference in the distance is small.[ ] _may ._ we traveled about twenty miles, and passed a company of twenty-eight wagons. the road runs upon the ridge, which after a distance of ten or twelve miles becomes a broad rolling prairie. as night came on, we came up with the company of one hundred wagons which we were in pursuit of: they were encamped upon the banks of a small brook, four miles from the kansas, into which it empties. we joined this company. at dark the guard was stationed, who becoming tired of their monotonous round of duty, amused themselves by shooting several dogs, and by so doing excited no small tumult in the company, which after some exertion on the part of the more orderly portion was quelled, and tranquility restored. _may ._ we traveled about four miles to caw or kansas river. this is a muddy stream, of about two hundred and fifty yards in width. we were obliged to be ferried over it in a flat boat; and so large was our company, and so slowly did the ferrymen carry on the necessary operations, that darkness overtook us before half the wagons had crossed the stream. fearing molestation from the numerous indians who were prowling about, we were compelled to keep a strong guard around our camp, and especially around our cattle; and when all the preliminaries had been arranged, we betook ourselves to rest; but our tranquility was soon interrupted by one of the most terrific thunder storms that i ever witnessed. it appeared to me that the very _elements_ had broken loose, and that each was engaging madly in a desperate struggle for the mastery. all was confusion in our camp. the storm had so frightened the cattle, { } that they were perfectly furious and ungovernable, and rushed through the guard, and dashed forward over the country before us: nothing could be done to secure them, and we were obliged to allow them to have out their race, and endeavor to guard our camp. _may ._ early this morning we succeeded in finding and taking possession of our cattle, and by noon all our wagons had crossed the river. soon after we took up our line of march, and after advancing about three miles, encamped near the banks of big soldier creek, for the purpose of organizing the company by an election of officers; the officers _then_ acting having been elected to serve only until the company should reach _this place_.[ ] it was decided, when at independence, that _here_ there should be a thorough and complete organization. great interest had been manifested in regard to the matter while upon the road; but _now_ when we had reached the spot and the period for attending to the matter in earnest had arrived, the excitement was intense. the most important officers to be elected were the pilot and captain of the company. there were two candidates for the office of pilot,--one a mr. adams, from independence,--the other a mr. meek, from the same place. mr. adams had once been as far west as fort laramie, had in his possession gilpin's notes,[ ] had engaged a spaniard, who had traveled over the whole route, to accompany him, and moreover had been conspicuously instrumental in producing the "oregon fever." in case the company would elect him pilot, and pay him five hundred dollars, _in advance_, he would bind himself to pilot them to fort vancouver. mr. meek, an old mountaineer, had spent several years as a trader and trapper, among the mountains, and had once been through to fort vancouver;[ ] he proposed to pilot us through for two hundred and fifty dollars, _thirty_ of which were to be paid in advance, and the balance when we arrived at fort vancouver. a motion was then made to postpone the election to the next day. while we were considering the motion, meek came running into the camp, and informed us that the indians were driving away our cattle. this intelligence caused the utmost confusion: motions and propositions, candidates and their special friends, were alike disregarded; _rifles_ were grasped, and _horses_ were hastily mounted, and away we all galloped in pursuit. our two thousand head of cattle were now scattered over the prairie, at a distance of four or five miles from the camp. { } about two miles from camp, in full view, up the prairie, was a small indian village; the greater part of our enraged people, with the hope of hearing from the lost cattle, drove rapidly forward to this place. as they approached the village, the poor indians were seen running to and fro, in great dismay--their women and children skulking about and hiding themselves,--while the chiefs came forward, greeted our party kindly, and by signs offered to smoke the pipe of peace, and engage with them in trade. on being charged with the theft of our cattle, they firmly asserted their innocence; and such was their conduct, that the majority of the party was convinced they had been wrongfully accused: but one poor fellow, who had just returned to the village, and manifested great alarm upon seeing so many "pale faces," was taken; and failing to prove his innocence, was hurried away to camp and placed under guard. meanwhile, after the greater part of the company had returned to camp, and the captain had assembled the _judges_, the prisoner was arraigned at the bar for trial, and the solemn interrogatory, "are you guilty or not guilty," was propounded to him: but to this, his only answer was--a grunt, the import of which the honorable court not being able clearly to comprehend, his trial was formally commenced and duly carried through. the evidence brought forward against him not being sufficient to sustain the charge, he was fully acquitted; and, when released, "_split_" for his wigwam in the village. after the excitement had in some degree subsided, and the affair was calmly considered, it was believed by most of us that the false alarm in regard to the indians had been raised with the design of breaking up or postponing the election. if such _was_ the design, it succeeded admirably. _may ._ immediately after breakfast, the camp was assembled, and proceeded to the election of officers and the business of organization. the election resulted in the choice of s. l. meek, as pilot, and doctor p. welch,[ ] formerly of indiana, as captain, with a host of subalterns; such as lieutenants, judges, sergeants, &c. after these matters had been disposed of, we harnessed up our teams and traveled about five miles, and encamped with big soldier creek on our right hand and caw river on our left. the next day we were delayed in crossing big soldier creek, on account of the steepness of its banks; and advanced only twelve miles through a prairie country. here { } sixteen wagons separated from us, and we were joined by fifteen others. _may ._ we traveled eighteen miles over a high, rolling prairie, and encamped on the banks of little vermilion creek, in sight of a caw village. the principal chief resides at this village.[ ] our camp here replenished their stores; and, although these indians may be a set of beggarly thieves, they conducted themselves honorably in their dealings with us; in view of which we raised for their benefit a contribution of tobacco, powder, lead, &c., and received in return many good wishes for a pleasant and successful journey. after leaving them, we traveled about twelve miles over a fertile prairie. in the evening, after we had encamped and taken our supper, a wedding was attended to with peculiar interest. _may ._ this day our camp did not rise. a growing spirit of dissatisfaction had prevailed since the election; there were a great number of disappointed candidates, who were unwilling to submit to the will of the majority; and to such a degree had a disorderly spirit been manifested, that it was deemed expedient to divide the company. accordingly, it was mutually agreed upon, to form, from the _whole_ body, three companies; and that, while each company should select its own officers and manage its internal affairs, the pilot, and capt. welsh, who had been elected by the whole company, should retain their posts, and travel with the company in advance. it was also arranged, that each company should take its turn in traveling in advance, for a week at a time. a proposition was then made and acceded to, which provided that a collection of funds, with which to pay the pilot, should be made previous to the separation, and placed in the hands of some person to be chosen by the _whole_, as treasurer, who should give bonds, with approved security, for the fulfilment of his duty. a treasurer was accordingly chosen, who after giving the necessary bond, collected about one hundred and ninety dollars of the money promised; some refused to pay, and others had no money in their possession. all these and similar matters having been satisfactorily arranged, the separation took place, and the companies proceeded to the election of the necessary officers. the company to which i had attached myself, consisting of thirty wagons, insisted that i should officiate as their captain, and with some reluctance i consented. we dispensed with many of the offices and formalities which { } existed in the former company, and after adopting certain regulations respecting the government of the company, and settling other necessary preliminaries, we retired to rest for the night. _may ._ we have this day traveled fifteen miles, through a prairie country, with occasionally a small grove along the streams. _may ._ yesterday after moving thirteen miles we crossed big vermillion, and encamped a mile beyond its west bank; we found a limestone country, quite hilly, indeed almost mountainous. to-day we have crossed bee, and big blue creeks; the latter stream is lined with oak, walnut, and hickory.[ ] we encamped two and a half miles west of it. during the night it rained very hard. our cattle became frightened and all ran away. _may ._ made to-day but eight miles. our pilot notified us that this would be our last opportunity to procure timber for axle trees, wagon tongues, &c., and we provided a supply of this important material. our cattle were all found. _may ._ early this morning we were passed by col. kearney and his party of dragoons, numbering about three hundred. they have with them nineteen wagons drawn by mules, and drive fifty head of cattle and twenty-five head of sheep. they go to the south pass of the rocky mountains.[ ] our travel of to-day and yesterday is thirty-two miles, during which we have crossed several small streams, skirted by trees. the soil looks fertile. _may ._ overtook capt. welsh's company to-day. we passed twelve miles through a rolling prairie region, and encamped on little sandy. _may ._ as it was now the turn of our company to travel in advance, we were joined by capt. welsh and our pilot. the country is of the same character with that we passed through on yesterday, and is highly adapted to the purpose of settlement, having a good soil, and streams well lined with timber. _may ._ in the afternoon of the th we struck the republican fork of blue river,[ ] along which for fifty miles lay the route we were traveling. its banks afford oak, ash and hickory, and often open out into wide and fertile bottoms. here and there we observed cotton wood and willow. the pea vine grows wild, in great abundance on the bottoms. the pea is smaller than our common garden pea and afforded us a { } pleasant vegetable. we saw also a few wild turkies. to-day we reached a point where a trail turns from this stream, a distance of twenty-five miles, to the platte or nebraska river. we kept the left hand route, and some nine or ten miles beyond this trail, we made our last encampment on the republican fork. _june ._ we set out at the usual hour and crossed over the country to platte river; having measured the road with the chain, we ascertained the distance to be eighteen and a half miles, from our encampment of last night. it is all a rolling prairie; and in one spot, we found in pools a little standing water. some two miles before reaching the platte bottom the prairie is extremely rough; and as far as the eye can reach up and down that river, it is quite sandy.[ ] we encamped near a marshy spot, occasioned by the overflow of the river, opposite an island covered with timber, to which we were obliged to go through the shallows of the river for fuel, as the main land is entirely destitute of trees. near us the platte bottom is three and a half miles wide, covered with excellent grass, which our cattle ate greedily, being attracted by a salt like substance which covers the grass and lies sprinkled on the surface of the ground. we observed large herds of antelope in our travel of to-day. in the evening it rained very hard. _june ._ our week of advance traveling being expired, we resolved to make a short drive, select a suitable spot, and lay by for washing. we accordingly encamped about six miles up platte river. as i had been elected captain but for two weeks, and my term was now expired, a new election was held, which resulted in the choice of the same person. the captain, welsh, who was originally elected by all the companies, had been with us one week, and some dissatisfaction was felt, by our company, at the degree of authority he seemed disposed to exercise. we found, too, that it was bad policy to require the several companies to wait for each other;--our supply of provision was considered barely sufficient for the journey, and it behooved us [to] make the best use of our time. at present one of the companies was supposed to be two or three days travel in the rear. we adopted a resolution desiring the several companies to abandon the arrangement that required each to delay for the others; and that each company should have the use of the pilot according to its turn. our proposition was not, for the present, accepted by the other companies. while we were at our washing encampment one { } of the companies passed us, the other still remaining in the rear. _june ._ having traveled about eight miles, we halted at noon, making short drives, to enable the rear company to join us. we have no tidings of it as yet. we met seventy-five or eighty pawnee indians returning from their spring hunt.[ ] _june ._ yesterday we traveled about twelve miles, passing captain stephens, with his advance company. to-day we traveled about the same distance, suffering stephens' company to pass us.[ ] at noon they were delayed by the breaking of an axletree of one of their wagons, and we again passed them, greatly to their offence. they refused to accede to our terms, and we determined to act on our own responsibility. we therefore dissolved our connection with the other companies, and thenceforward acted independently of them. _june ._ we advanced twenty miles to-day. we find a good road, but an utter absence of ordinary fuel. we are compelled to substitute for it buffalo dung, which burns freely. _june ._ we find in our sixteen miles travel to-day that the grass is very poor in the platte bottoms, having been devoured by the buffalo herds. these bottoms are from two to four miles in width, and are intersected, at every variety of interval, by paths made by the buffaloes, from the bluffs to the river. these paths are remarkable in their appearance, being about fifteen inches wide, and four inches deep, and worn into the soil as smoothly as they could be cut with a spade. we formed our encampment on the bank of the river, with three emigrating companies within as many miles of us; two above and one below; one of fifty-two wagons, one of thirteen, and one of forty-three--ours having thirty-seven. we find our cattle growing lame, and most of the company are occupied in attempting to remedy the lameness. the prairie having been burnt, dry, sharp stubs of clotted grass remain, which are very hard, and wear and irritate the feet of the cattle. the foot becomes dry and feverish, and cracks in the opening of the hoof. in this opening the rough blades of grass and dirt collect, and the foot generally festers, and swells very much. our mode of treating it was, to wash the foot with strong soap suds, scrape or cut away all the diseased flesh, and then pour boiling pitch or tar upon the sore. if applied early this remedy will cure. should the heel become worn out, apply tar or pitch, and singe with a hot iron. at our encampment to-night we have abundance of wood for fuel. { } _june ._ we advanced to-day about twelve miles. the bottom near our camp is narrow, but abounds in timber, being covered with ash; it, however, affords poor grazing. so far as we have traveled along the platte, we find numerous islands in the river, and some of them quite large. in the evening a young man, named foster,[ ] was wounded by the accidental discharge of a gun. the loaded weapon, from which its owner had neglected to remove the cap, was placed at the tail of a wagon; as some one was taking out a tent-cloth, the gun was knocked down, and went off. the ball passed through a spoke of the wagon-wheel, struck the felloe, and glanced. foster was walking some two rods from the wagon, when the half spent ball struck him in the back, near the spine; and, entering between the skin and the ribs, came out about three inches from where it entered, making merely a flesh wound. a small fragment of the ball had lodged in his arm. _june ._ the morning is rainy. to-day we passed stephens' company, which passed us on yesterday. our dissensions are all healed; and they have decided to act upon our plan. _june ._ yesterday we traveled fifteen miles; to-day the same distance. we find the grazing continues poor. in getting to our encampment, we passed through a large dog town. these singular communities may be seen often, along the banks of the platte, occupying various areas, from one to five hundred acres. the one in question covered some two hundred or three hundred acres. the prairie-dog is something larger than a common sized gray squirrel, of a dun color; the head resembles that of a bull dog: the tail is about three inches in length. their food is prairie grass. like rabbits, they burrow in the ground, throwing out heaps of earth, and often large stones, which remain at the mouth of their holes. the entrance to their burrows is about four inches in diameter, and runs obliquely into the earth about three feet, when the holes ramify in every direction and connect with each other on every side. some kind of police seems to be observed among them; for at the approach of man, one of the dogs will run to the entrance of a burrow, and, squatting down, utter a shrill bark. at once, the smaller part of the community will retreat to their holes, while numbers of the larger dogs will squat, like the first, at their doors, and unite in the barking. a near approach drives them all under ground. it is singular, { } but true, that the little screech-owl and the rattlesnake keep them company in their burrows. i have frequently seen the owls, but not the snake, with them. the mountaineers, however, inform me, that they often catch all three in the same hole. the dog is eaten by the indians, with quite a relish; and often by the mountaineers. i am not prepared to speak of its qualities as an article of food. during the night, a mule, belonging to a mr. risley,[ ] of our company, broke from its tether, and in attempting to secure it, its owner was repeatedly shot at by the guard; but, fortunately, was not hit. he had run from his tent without having been perceived by the guard, and was crawling over the ground, endeavoring to seize the trail rope, which was tied to his mule's neck. the guard mistook him for an indian, trying to steal horses, and called to him several times; but a high wind blowing he did not hear. the guard leveled and fired, but his gun did not go off. another guard, standing near, presented his piece and fired; the cap burst, without discharging the load. the first guard, by this time prepared, fired a second time, without effect. by this time the camp was roused, and nearly all seized their fire-arms, when we discovered that the supposed indian was one of our own party. we regarded it as providential that the man escaped, as the guard was a good shot, and his mark was not more than eighty yards distant. this incident made us somewhat more cautious about leaving the camp, without notifying the guard. _june ._ to-day we traveled ten or twelve miles. six miles brought us to the lower crossing of platte river, which is five or six miles above the forks, and where the high ground commences between the two streams. there is a trail which turns over the bluff to the left; we however took the right, and crossed the river.[ ] the south fork is at this place about one fourth of a mile wide, and from one to three feet deep, with a sandy bottom, which made the fording so heavy that we were compelled to double teams. the water through the day is warm; but as the nights are cool, it is quite cool enough in the morning. on the west bank of the river was encamped brown's company, which passed us whilst we were organizing at caw river. we passed them, and proceeded along the west side of the south fork, and encamped on the river bank. at night our hunters brought in some buffalo meat. _june ._ yesterday we followed the river about thirteen miles, and encamped on its bank, where the road between the { } two forks strikes across the ridge toward the north fork. to-day we have followed that route: directly across, the distance does not exceed four miles: but the road runs obliquely between the two streams, and reaches the north fork about nine miles from our last camp. we found quite a hill to descend, as the road runs up the bottom a half mile and then ascends the bluff. emigrants should keep the bluff sixteen or seventeen miles. we descended a ravine and rested on the bank of the river. _june ._ yesterday we advanced eight miles, and halted to wash and rest our teams. we have remained all this day in camp. at daylight a herd of buffalo approached near the camp; they were crossing the river, but as soon as they caught the scent, they retreated to the other side. it was a laughable sight to see them running in the water. some of our men having been out with their guns, returned at noon overloaded with buffalo meat. we then commenced jerking it. this is a process resorted to for want of time or means to cure meat by salting. the meat is sliced thin, and a scaffold prepared, by setting forks in the ground, about three feet high, and laying small poles or sticks crosswise upon them. the meat is laid upon those pieces, and a slow fire built beneath; the heat and smoke completes the process in half a day; and with an occasional sunning the meat will keep for months. an unoccupied spectator, who could have beheld our camp to-day, would think it a singular spectacle. the hunters returning with the spoil; some erecting scaffolds, and others drying the meat. of the women, some were washing, some ironing, some baking. at two of the tents the fiddle was employed in uttering its unaccustomed voice among the solitudes of the platte; at one tent i heard singing; at others the occupants were engaged in reading, some the bible, others poring over novels. while all this was going on, that nothing might be wanting to complete the harmony of the scene, a campbellite preacher, named foster, was reading a hymn, preparatory to religious worship. the fiddles were silenced, and those who had been occupied with that amusement, betook themselves to cards. such is but a miniature of the great world we had left behind us, when we crossed the line that separates civilized man from the wilderness. but even here the variety of occupation, the active exercise of body and mind, either in labor or pleasure, the commingling of evil and good, show that the likeness is a true one. { } _june ._ on our travel of eight miles, yesterday, we found the bluffs quite high, often approaching with their rocky fronts to the water's edge, and now and then a cedar nodding at the top. our camp, last night, was in a cedar and ash grove, with a high, frowning bluff overhanging us; but a wide bottom, with fine grass around us, and near at hand an excellent spring. to-day five miles over the ridge brought us to ash hollow. here the trail, which follows the east side of the south fork of platte, from where we crossed it, connects with this trail.[ ] the road then turns down ash hollow to the river; a quarter of a mile from the latter is a fine spring, and around it wood and grass in abundance. our road, to-day, has been very sandy. the bluffs are generally rocky, at times presenting perpendicular cliffs of three hundred feet high. we passed two companies, both of which we had before passed; but whilst we were lying by on the north fork, they had traveled up the south fork and descended ash hollow. _june ._ we met a company of mountaineers from fort laramie, who had started for the settlements early in the season, with flat-boats loaded with buffalo robes, and other articles of indian traffic. the river became so low, that they were obliged to lay by; part of the company had returned to the fort for teams; others were at the boat landing, while fifteen of the party were footing their way to the states. they were a jolly set of fellows. four wagons joined us from one of the other divisions, and among them was john nelson, with his family, formerly of franklin county, indiana. we traveled fifteen miles, passing captain smith's company. _june ._ five miles, to-day, brought us to spring creek; eleven miles further to another creek, the name of which i could not ascertain; there we encamped, opposite the solitary tower.[ ] this singular natural object is a stupendous pile of sand and clay, so cemented as to resemble stone, but which crumbles away at the slightest touch. i conceive it is about seven miles distant from the mouth of the creek; though it appears to be not more than three. the height of this tower is somewhere between six hundred and eight hundred feet from the level of the river. viewed from the road, the beholder might easily imagine he was gazing upon some ancient structure of the old world. a nearer approach dispels the illusion, and it looks, as it is, rough and unseemly. it can be ascended, at its north side, by clambering up the rock; holes having been cut in its face for that purpose. the second, or { } main bench, can be ascended with greater ease at an opening on the south side, where the water has washed out a crevice large enough to admit the body; so that by pushing against the sides of the crevice one can force himself upward fifteen or twenty feet, which places the adventurer on the slope of the second bench. passing round the eastern point of the tower, the ascent may be continued up its north face. a stream of water runs along the north-eastern side, some twenty rods distant from the tower; and deep ravines are cut out by the washing of the water from the tower to the creek. near by stands another pile of materials, similar to that composing the tower, but neither so large nor so high. the bluffs in this vicinity appear to be of the same material. between this tower and the river stretches out a rolling plain, barren and desolate enough. _june ._ traveling fourteen miles, we halted in the neighborhood of the chimney rock. this is a sharp-pointed rock, of much the same material as the solitary tower, standing at the base of the bluff, and four or five miles from the road. it is visible at a distance of thirty miles, and has the unpoetical appearance of a hay-stack, with a pole running far above its top.[ ] _june ._ since the th we have traveled about sixty-two miles, and are now at fort laramie; making our whole travel from independence about six hundred and thirty miles. on the d we passed over scott's bluffs, where we found a good spring, and abundance of wood and grass. a melancholy tradition accounts for the name of this spot. a party who had been trading with the indians were returning to the states and encountering a band of hostile savages, were robbed of their peltries and food. as they struggled homeward, one of the number, named scott, fell sick and could not travel. the others remained with him, until the sufferer, despairing of ever beholding his home, prevailed on his companions to abandon him. they left him alone in the wilderness, several miles from this spot. here human bones were afterwards found; and, supposing he had crawled here and died, the subsequent travelers have given his name to the neighboring bluff.[ ] _june ._ our camp is stationary to-day; part of the emigrants are shoeing their horses and oxen; others are trading at the fort and with the indians. flour, sugar, coffee, tea, tobacco, powder and lead, sell readily, at high prices. in the { } afternoon we gave the indians a feast, and held a long _talk_ with them. each family, as they could best spare it, contributed a portion of bread, meat, coffee or sugar, which being cooked, a table was set by spreading buffalo skins upon the ground, and arranging the provisions upon them. around this attractive board, the indian chiefs and their principal men seated themselves, occupying one fourth of the circle; the remainder of the male indians made out the semi-circle; the rest of the circle was completed by the whites. the squaws and younger indians formed an outer semicircular row immediately behind their dusky lords and fathers. two stout young warriors were now designated as waiters, and all the preparations being completed, the indian chiefs and principal men shook hands, and at a signal the white chief performed the same ceremony, commencing with the principal chief, and saluting him and those of his followers who composed the first division of the circle; the others being considered inferiors, were not thus noticed. the talk preceded the dinner. a trader acted as interpreter. the chief informed us, that "a long while ago some white chiefs passed up the missouri, through his country, saying they were the red man's friends, and that as the red man found them, so would he find all the other pale faces. this country belongs to the red man, but his white brethren travels through, shooting the game and scaring it away. thus the indian loses all that he depends upon to support his wives and children. the children of the red man cry for food, but there is no food. but on the other hand, the indian profits by the trade with the white man. he was glad to see us and meet us as friends. it was the custom when the pale faces passed through his country, to make presents to the indians of powder, lead, &c. his tribe was very numerous, but the most of the people had gone to the mountains to hunt. before the white man came, the game was tame, and easily caught, with the bow and arrow. now the white man has frightened it, and the red man must go to the mountains. the red man needed long guns." this, with much more of the like, made up the talk of the chief, when a reply from our side was expected. as it devolved on me to play the part of the white chief, i told my red brethren, that we were journeying to the great waters of the west. our great father owned a large country there, and we were going to settle upon it. for this purpose we brought with us our wives and little ones. we were compelled { } to pass through the red man's country, but we traveled as friends, and not as enemies. as friends we feasted them, shook them by the hand, and smoked with them the pipe of peace. they must know that we came among them as friends, for we brought with us our wives and children. the red man does not take his squaws into battle: neither does the pale face. but friendly as we felt, we were ready for enemies; and if molested, we should punish the offenders. some of us expected to return. our fathers, our brothers and our children were coming behind us, and we hoped the red man would treat them kindly. we did not expect to meet so many of them; we were glad to see them, and to hear that they were the white man's friends. we met peacefully--so let us part. we had set them a feast, and were glad to hold a talk with them; but we were not traders, and had no powder or ball to give them. we were going to plough and to plant the ground, and had nothing more than we needed for ourselves. we told them to eat what was before them, and be satisfied; and that we had nothing more to say. the two indian servants began their services by placing a tin cup before each of the guests, always waiting first upon the chiefs; they then distributed the bread and cakes, until each person had as much as it was supposed he would eat; the remainder being delivered to two squaws, who in like manner served the squaws and children. the waiters then distributed the meat and coffee. all was order. no one touched the food before him until all were served, when at a signal from the chief the eating began. having filled themselves, the indians retired, taking with them all that they were unable to eat. this is a branch of the sioux nation, and those living in this region number near fifteen hundred lodges.[ ] they are a healthy, athletic, good-looking set of men, and have according to the indian code, a respectable sense of honor, but will steal when they can do so without fear of detection. on this occasion, however, we missed nothing but a frying pan, which a squaw slipped under her blanket, and made off with. as it was a trifling loss, we made no complaint to the chief. here are two forts. fort laramie, situated upon the west side of laramie's fork, two miles from platte river, belongs to the north american fur company.[ ] the fort is built of _adobes_. the walls are about two feet thick, and twelve or fourteen feet high, the tops being picketed or spiked. posts are planted in these walls, and support the timber for the roof. { } they are then covered with mud. in the centre is an open square, perhaps twenty-five yards each way, along the sides of which are ranged the dwellings, store rooms, smith shop, carpenter's shop, offices, &c., all fronting upon the inner area. there are two principal entrances; one at the north, the other at the south. on the eastern side is an additional wall, connected at its extremities with the first, enclosing ground for stables and carrell. this enclosure has a gateway upon its south side, and a passage into the square of the principal enclosure. at a short distance from the fort is a field of about four acres, in which, by way of experiment, corn is planted; but from its present appearance it will probably prove a failure. fort john stands about a mile below fort laramie, and is built of the same material as the latter, but is not so extensive. its present occupants are a company from st. louis.[ ] _june ._ this day, leaving fort laramie behind us, we advanced along the bank of the river, into the vast region that was still between us and our destination. after moving five miles, we found a good spot for a camp, and as our teams still required rest, we halted and encamped, and determined to repose until saturday the th. _june ._ a drive of ten miles brought us to big spring, a creek which bursts out at the base of a hill, and runs down a sandy hollow. the spring is one fourth of a mile below the road. we found the water too warm to be palatable.[ ] five miles beyond the creek the road forks; we took the right hand trail, which is the best of the two, and traversed the black hills, as they are called. the season has been so dry that vegetation is literally parched up; of course the grazing is miserable. after proceeding eighteen miles we encamped on bitter cottonwood.[ ] _june ._ to-day we find the country very rough, though our road is not bad. in the morning some of our cattle were missing, and four of the company started back to hunt for them. at the end of fourteen miles we rested at horse shoe creek, a beautiful stream of clear water, lined with trees, and with wide bottoms on each side, covered with excellent grass. at this point our road was about three miles from the river.[ ] _july ._ as the men who left the company on the th, to look for our lost cattle, were not returned, we remained in { } camp yesterday. game seemed abundant along the creek, and our efforts to profit by it were rewarded with three elk and three deer. to-day our cattle hunters still remain behind. we sent back a reinforcement, and hitching up our teams advanced about sixteen miles. eight miles brought us to the dalles of platte, where the river bursts through a mountain spur. perpendicular cliffs, rising abruptly from the water, five hundred or six hundred feet high, form the left bank of the river. these cliffs present various strata, some resembling flint, others like marble, lime, &c. the most interesting feature of these magnificent masses, is the variety of colors that are presented; yellow, red, black and white, and all the shades between, as they blend and are lost in each other. on the top nods a tuft of scrubby cedars. upon the south side, a narrow slope between the bluff and river, affords a pass for a footman along the water's edge, while beyond the bluff rises abruptly. frequently cedar and wild sage is to be seen. i walked up the river a distance of half a mile, when i reached a spot where the rocks had tumbled down, and found something of a slope, by which i could, with the assistance of a long pole, and another person sometimes pushing and then pulling, ascend; we succeeded in clambering up to the top--which proved to be a naked, rough black rock, with here and there a scrubby cedar and wild sage bush. it appeared to be a place of resort for mountain sheep and bears. we followed this ridge south to where it gradually descended to the road. the river in this _kanyon_ is about one hundred and fifty yards wide, and looks deep.[ ] at the eastern end of this _kanyon_ comes in a stream which, from appearance, conveys torrents of water at certain seasons of the year. here, too, is a very good camp. by going up the right hand branch five or six miles, then turning to the right up one of the ridges, and crossing a small branch (which joins the river six or seven miles above the _kanyon_) and striking the road on the ridge three miles east of the big timber creek, a saving might be made of at least ten miles travel. we did not travel this route; but, from the appearance of the country, there would be no difficulty. _july ._ this day we traveled about sixteen miles. the road left the river bottom soon after we started. a trail, however, crosses the bottom for about two miles, and then winds back to the hill. the nearest road is up a small sandy ravine, for two miles, then turn to the right up a ridge, and follow this ridge for eight or ten miles. at the distance of thirteen { } or fourteen miles, the road which turned to the left near the big spring, connects with this. the road then turns down the hill to the right, into a dry branch, which it descends to big timber creek, where we encamped.[ ] _july ._ this day we traveled about fifteen miles. six miles brought us to a small branch, where is a good camp. near this branch there is abundance of marble, variegated with blue and red, but it is full of seams. the hills in this vicinity are of the red shale formation. in the mountain near by is stone coal. the hills were generally covered with grass. the streams are lined with cotton wood, willow and boxalder. the road was very dusty. _july ._ we traveled about fifteen miles to-day, the road generally good, with a few difficult places. two wagons upset, but little damage was done. we crossed several beautiful streams flowing from the black hills; they are lined with timber. to-day, as on yesterday, we found abundance of red, yellow and black currants, with some gooseberries, along the streams. _july ._ we this day traveled about twelve miles. three miles brought us to deer creek.[ ] here is an excellent camp ground. some very good bottom land. the banks are lined with timber. stone coal was found near the road. this would be a suitable place for a fort, as the soil and timber is better than is generally found along the upper platte. game in abundance, such as elk, buffalo, deer, antelope and bear. the timber is chiefly cotton wood, but there is pine on the mountains within ten or twelve miles. the road was generally along the river bottom, and much of the way extremely barren. we encamped on the bank of the river. _july ._ in traveling through the sand and hot sun, our wagon tires had become loose; and we had wedged until the tire would no longer remain on the wheels. one or two axletrees and tongues had been broken, and we found it necessary to encamp and repair them. for this purpose all hands were busily employed. we had neither bellows nor anvil, and of course could not cut and weld tire. but as a substitute, we took off the tire, shaved thin hoops and tacked them on the felloes, heated our tire and replaced it. this we found to answer a good purpose. _july ._ this day we traveled about ten miles. in crossing a small ravine, an axletree of one of the wagons was broken. { } the road is mostly on the river bottom. much of the country is barren. _july ._ six miles travel brought us to the crossing of the north fork of the platte. at o'clock, p. m. all were safely over, and we proceeded up half a mile to a grove of timber and encamped.[ ] near the crossing was encamped colonel kearney's regiment of dragoons, on their return from the south pass. many of them were sick. _july ._ we traveled about ten miles this day, and encamped at the mineral spring. the road leaves the platte at the crossing, and passes over the _red buttes_.[ ] the plains in this region are literally covered with buffalo. _july ._ to-day we traveled about ten miles. the range is very poor, and it has become necessary to divide into small parties, in order to procure forage for our cattle. out of the company five divisions were formed. in my division we had eleven wagons; and we travel more expeditiously, with but little difficulty in finding grass for our cattle. _july ._ we this day traveled about twelve miles. soon after starting we passed an excellent spring: it is to the right of the road, in a thicket of willows. one fourth of a mile further the road ascends a hill, winds round and passes several marshy springs. the grass is very good, but is confined to patches. our camp was on a small branch running into the sweet water. _july ._ this day we arrived at _independence rock_. this is a solitary pile of gray granite, standing in an open plain. it is about one-eighth of a mile long and some six or eight rods wide, and is elevated about sixty or seventy feet above the plain. on the north-eastern side the slope is sufficiently gradual to be easily ascended. portions of it are covered with inscriptions of the names of travelers, with the dates of their arrival--some carved, some in black paint, and others in red. sweet water, a stream heading in the wind river mountains, and entering the platte, runs immediately along its southern side, leaving a strip of some twenty or thirty feet of grassy plain between the base of the rock and the creek. we encamped two miles above the rock, having traveled about thirteen miles.[ ] _july ._ we traveled about thirteen miles this day. three miles brought us to the _gap_, or _devil's gate_, as it is sometimes called. the sweet water breaks through a spur of the mountain, which from appearance is four or five hundred feet high. { } on the south side the rocks project over the stream, but on the north slope back a little. the whole mountain is a mass of gray granite rock, destitute of vegetation, save an occasional scrubby cedar or bush of artemisia. from where the creek enters to where it emerges from this _kanyon_ is three or four hundred yards. the water rushes through like a torrent. at the distance of one hundred rods south of this is the gap, where the road passes; but the rock is not so high. south of this again is another gap, perhaps half or three-fourths of a mile wide. the rocks there rise mountain high.[ ] south-west of this is a valley extending as far as the eye can penetrate. as the road passes through this gap, it bears to the right, up the valley of the sweet water. _july ._ this day we traveled about twenty-two miles. the road sometimes leaves the creek for several miles, and passes over a barren, sandy plain; no kind of vegetation but the wild sage. we this day met a party of men from california and oregon. a portion of those from california spoke unfavorably of that country; and those from oregon spoke highly of the latter country. on this day's march we came in sight of the long-looked-for snowcapped mountains. they were the wind river mountains. on our right is a mass of naked rock; on our left and to the distance of ten or twelve miles is a high range of mountains, mostly covered with timber; whilst in the valley there is no timber, and much of the plain entirely destitute of vegetation. we encamped near the narrows.[ ] _july ._ we traveled about eleven miles to-day. there are two trails, which diverge below the narrows. the nearest and best is that to the right up the creek, crossing it several times; they unite again near where we encamped. the road was good, but as usual very dusty. our hunters wounded a buffalo, and drove him into camp. about twenty men ran to meet him. he gave them battle. they fired a volley that brought him to his knees, and whilst in that position mr. creighton (a young man from ohio) ran across the creek, intending to shoot the animal in the head. when creighton had approached within ten or twelve feet, the enraged animal sprung to his feet and made at him. creighton wheeled and "split" for the camp; the buffalo pursuing to near the bank of the creek, where he stopped. by this time others had arrived with guns, and the buffalo was compelled to yield. in the "spree" one of my horses was shot with a ball in the { } knee; no bones were broken, and he was able to travel, but he was a long time very lame. _july ._ this day we traveled about twenty-six miles. four miles brought us to a marshy bottom, where was very good grass. in the centre of this quagmire and near where the road crosses the bottom is a spring of good water. eight miles brought us to a small stream; but little grass. six miles brought us to sweet water; crossed and left it and struck it again in six or eight miles. the grass here is good. wild sage was our only fuel. this night there was a heavy frost. _july ._ our cattle being much fatigued, we drove but five miles. the road is up the creek bottom, which is mostly covered with grass. a heavy frost: ice formed in buckets one-fourth of an inch thick. we here found the celebrated mountaineer walker, who was traveling to bridger's fort.[ ] _july ._ we traveled about twenty-two miles this day. the road ascends the bluff and winds among rocky hills for six miles, passing over ledges that are entirely naked for rods. the appearance of the country is extremely barren. we passed several rivulets where small parties may obtain grazing for their stock. the day has been quite cold. the wind river mountains are on our right, about twenty miles distant. they presented a most grand appearance. huge masses of ice and snow piled up peak upon peak, with large bodies of timber covering portions of the mountains. we viewed the southern termination of this range; but they extend to the north further than the eye can penetrate. the country between us and the mountains is rolling, and much of it apparently barren. hard frost. _july ._ this morning we ascended the bank on the south side of sweet water. six miles brought us again to the creek, where is good grass in the bottom and willow for fuel. we crossed, went up the bottom two miles, and crossed back and left the sweet water. _this day we passed over the dividing ridge which separates the waters flowing into the atlantic from those which find their way into the pacific ocean._ we had reached the summit of the rocky mountains. six miles brought us to a spring, the waters of which run into green river, or the great colorado of the west.[ ]--here, then, we hailed oregon. here we found a bottom covered with good grass, where we halted until four o'clock, p. m., when we again hitched up and took the plain for little sandy. ten miles brought us to a dry branch, where by digging to the { } depth of one foot we procured water; but it was brackish, and had a very unpleasant taste. a white sediment, such as we had noticed elsewhere on the road, covered the surface of the ground. ten miles more brought us to little sandy, which we reached at one o'clock in the night, having traveled thirty-one miles. the road was over a barren plain of light sand, and was very dusty. from the spring to little sandy there is no vegetation but the wild sage, and it had a withered appearance. the night was cold, freezing quite hard. little sandy has its source in the wind river mountains.[ ] along this stream is a narrow bottom, covered with grass and willows. we are now out of the range of the buffalo, and although not often mentioned, we have seen thousands of these huge animals. there have been so many companies of emigrants in advance of us, that they have frightened the buffalo from the road. we daily see hundreds of antelope. _july ._ this day we traveled about thirteen miles, to big sandy. the road was over a level sandy plain, covered with wild sage. at little sandy the road forks--one taking to the right and striking big sandy in six miles, and thence forty miles to green river, striking the latter some thirty or forty miles above the lower ford, and thence to big bear river, striking it about fifteen miles below the old road. by taking this trail two and a half days' travel may be saved; but in the forty miles between big sandy and green river there is no water, and but little grass. camps may be had within reasonable distances between green and bear rivers.[ ] the left hand trail, which we took, twelve miles from little sandy strikes the big sandy, follows down it and strikes green river above the mouth of big sandy. _july ._ we traveled about fourteen miles to-day. six miles brought us to green river, or colorado. this is a beautiful clear stream, about one hundred yards wide, with a rapid current over a gravelly bottom. it flows through a barren, sandy country; occasionally the bottoms spread to a mile in width, covered with grass. there is mostly a belt of timber along the banks of the stream.--emigrants had been in the habit of crossing the river on rafts. we succeeded in finding a place where, by hoisting up the wagon-beds six inches, we could ford the river without damaging our goods. this was done by cutting poles and placing them under the wagon-beds, and in one hour we were all safely over. we proceeded down the river eight miles, and encamped in a grove near some { } cabins built by a party of traders. there is an abundance of fish in this stream, and we had great sport in fishing. _july ._ this day we traveled about fifteen miles. the road leaves green river near our camp, and passes over a high, barren country, to black's fork; this we followed up some four miles and encamped.[ ] as upon other streams, there is occasionally a grassy bottom with a little cotton wood and willow brush. snowy mountains to be seen in the south. _july ._ we traveled, to-day, about fourteen miles, over a barren country, crossing the creek several times. we noticed a number of piles of stone and earth, some forty or fifty feet high, scattered in different directions, giving the appearance of the general surface having been worn away to that extent by the ravages of time and the elements. _july ._ this day we traveled about sixteen miles, crossed the creek several times, and encamped near fort bridger. this is a trading fort owned by bridger and bascus. it is built of poles and daubed with mud; it is a shabby concern.[ ] here are about twenty-five lodges of indians, or rather white trappers' lodges occupied by their indian wives. they have a good supply of robes, dressed deer, elk and antelope skins, coats, pants, moccasins, and other indian fixens, which they trade low for flour, pork, powder, lead, blankets, butcher-knives, spirits, hats, ready made clothes, coffee, sugar, &c. they ask for a horse from twenty-five to fifty dollars, in trade. their wives are mostly of the pyentes and snake indians.[ ] they have a herd of cattle, twenty-five or thirty goats and some sheep. they generally abandon this fort during the winter months. at this place the bottoms are wide, and covered with good grass. cotton wood timber in plenty. the stream abounds with trout. _july ._ remained at the fort the whole of this day. _july ._ we traveled about eight miles, to-day, to little muddy. the grazing and water bad. several bad hills. _july ._ to-day we traveled about sixteen miles. ten miles brought us to the big muddy.[ ] country barren. our course is up the big muddy, and nearly north. encamped on the creek. very poor grazing. this is a limestone country. _july ._ this day we traveled about sixteen miles. our course is still up the muddy. emigrants would do well to push on up to near the head of this creek, as the grass is good, { } and there are excellent springs of water. the country is very rough. we saw a few beaver dams. _july ._ we traveled about twenty-five miles this day. twelve miles brought us to the dividing ridge between the waters of green and bear rivers. the ridge is high, but the ascent is not difficult. from this ridge the scenery is most delightful. in one view is the meanders of muddy creek. two companies with large herds of cattle are winding their way up the valley. the bold mountains on either side are very high and rugged. in front and at the distance of twelve miles is the valley of big bear river. a ravine at our feet cuts the spur of the mountain, and empties its waters into bear river. the valley of bear river is four or five miles wide, with willows along its banks. at a distance beyond the bear river is a range of high mountains, stretching as far as the eye can reach, their snowy tops glistening in the rays of the sun. the mountains near the trail are rough and have a singular appearance; the earth being of various colors--black, white, red, yellow, and intermediate shades. occasionally there is a grove of quaking aspen, and a few sour-berry bushes and some cedar. our camp to-night was on bear river; the bottom is sandy, and mostly covered with wild sage.[ ] _july ._ this day we traveled down bear river fifteen miles. the bottom is from two to four miles wide, and mostly covered with good grass. the road excellent. we encamped two miles above smith's fork. the upper road from green river comes in two miles back. _august ._ we traveled fifteen miles this day. two miles brought us to smith's fork. this is a bold, clear, and beautiful stream, coming in from the east. it is about fifteen yards wide, lined with timber and undergrowth.[ ] in this stream is an abundance of mountain trout, some of them very large. the road leads down the bottom of bear river three miles to spring branch, one mile to the narrows and three miles to the first crossing of bear river.[ ] here are two trails. the nearest turns to the right up a creek for a mile and a half, crosses the creek and passes over the hill, and strikes the other trail at the foot of big hill, six miles from the crossings. the other trail crosses the river, follows up its bottom round the bend for eight miles, to where it crosses the river, then follows down the bottom three miles, and takes up a valley for one mile to the foot of the big hill, where it intersects the other trail. this is the most level road, but the other is not a bad one. { } the hills bordering on bear river on this day's travel are very high and rugged; they are covered with grass. the bottoms are from one to four miles wide. we saw this day large herds of antelope. we encamped in the bend of the river, near the second crossings. _august ._ this day we traveled about nineteen miles. four or five miles brought us to the big hill or mountain. it is about half a mile to the top of the first ridge, and quite steep. the road then turns a few rods to the right, then to the left down a ravine for three hundred yards, and then up a ravine for half a mile to the top of the mountain. we traveled about two miles along the ridge, and then turned to the left down the mountain. it is about one mile to the plain, and generally very steep and stony; but all reached the plain safely, and were truly thankful that they had safely passed one of the most difficult mountains on the road. from the top of this mountain we had a most delightful view of the surrounding country. this is one of the ranges which border this stream. at this place they close in upon both sides so as not to admit of a passage with teams along the river. a road could easily be cut around the point, and save the fatigue of climbing this mountain; the distance would not be materially increased. the valley of bear river bears off to the northwest, and can be seen a great distance. from the south comes in a broad valley, up which can be seen bear lake. a high range of mountains separates it from the river. the outlet of this lake is two or three miles below the narrows made by this mountain.[ ] a high range of snow covered mountains can be seen to the southwest. the road strikes the river two miles from the foot of the mountain, at big timber. here is a good camp. eight miles brought us to a spring branch. the bottom here is wide; a low marsh prevents driving to the river. the grass is good. there is a little timber on the mountains. at big timber is a company of trappers and traders attached to bridger's party. _august ._ we traveled about fourteen miles, crossing a number of spring branches, coming in from the mountains. these branches abound in trout. the ground, for a strip of about four miles, was covered with black crickets of a large size. i saw some that were about three inches in length, and measuring about three-fourths of an inch in diameter; but the common size were two inches in length and one-half or five-eighths of an inch in diameter; their legs were large in proportion { } to the size of their bodies. some were singing on stalks of wild sage; others crawling in every direction. our teams made great havoc among them; so numerous were they that we crushed them at every step. as soon as one was killed, others of them would alight upon it and devour it. the bottoms are wide, and covered with grass, and the soil looks well. a few patches of snow were seen upon the mountain some ten miles distant. a portion of the mountain is covered with fine timber. the bottoms are rolling. _august ._ we reached the soda springs, having traveled about eight miles.[ ] the first view we had was of two or three white hillocks or mounds, standing up at different points to the right of the road, and near a grove of cedar and pine timber. one of them is about ten rods long at the base, and three or four rods in width; its elevation is probably twenty-five or thirty feet from the plain in which it is situated. the size of these mounds continually increases, as the water oozes out at different points, and produces a crust which becomes quite hard. the rocks, for miles around, are of the soda formation. upon these mounds the water is warm. in a small bottom, immediately before reaching the first of these mounds, and about two hundred yards above the road, is a hole about eight feet in diameter; in this is a pool of water, strongly impregnated with soda. i had no means of ascertaining the depth, but believe it to be considerable; at one edge of it the water was boiling and sparkling; it would sometimes swell four inches above the surface. this pool, and others contiguous, affords excellent drinking water; it was cool, and, when sweetened, would compare favourably with any soda water. just below the mound, and near the grove, is a rapid stream of water, coursing over a rocky bottom, formed by soda. at the crossing of this creek, and below the road, is a morass; and immediately on the bank of the rivulet, is a crevice in the rock, from which a small stream of water issues; this was the best to drink of any i found. after crossing the creek, the distance to the springs generally resorted to is about three-fourths of a mile; they boil up in every direction. several mounds have been formed, of ten feet in height. the water has found some other passage, and left them to moulder away. the centre or middle of these are concave. the surface of the earth here is some twelve or fifteen feet above the level of the river, the bank of which is of rock, of the soda formation. a grove of cedar and pine timber extends from the river back to { } the mountain, a distance of two and a half or three miles; the space between the road and the river is covered with grass; but between it and the mountain it is barren of vegetation of any kind. the soda has left a sediment, which is now crumbled and loose, with an occasional mound of ten or twelve feet elevation, but no water running. the river here is about one hundred yards in width, and about eighteen inches in depth, running very rapidly. the soda water is bubbling up in every direction, and sometimes rises six inches above the surface of the river. this bubbling extends for near half a mile. a stream comes in from the north at the western edge of the springs, tumbles over the rocks, and finally into the river. near where one branch of this falls over the rock (it has several passages where the road crosses it) is a circular basin in the rock, being two feet in diameter at the top, but larger below. it was covered with grass; and, in walking along, i barely avoided stepping into it; whilst at its edge the purling or gurgling of the water, as it boils up, apprized me of its vicinity. the surface of the water is about three feet below the top of the rock. the water is cool, much more so than the water of the springs, and is remarkably clear. three hundred yards below the crossing of this branch, and immediately on the bank of the river, is the steamboat spring.[ ] the water has formed a small cone of about two and a half feet in height, and three feet in diameter, at the base. a hole of six inches in diameter at the top, allows the water to discharge itself. it swells out at intervals of eight or ten seconds, and sometimes flows four or five feet in disjointed fragments. it is lukewarm, and has a milky appearance; but when taken in a vessel becomes as transparent as crystal. it produces a sound similar to the puffing of a steamboat, but not quite so deep. it can frequently be heard at the distance of a quarter of a mile. about six feet from this is a small fissure in the rock, which is called the escape-pipe or gas-pipe. it makes a hissing noise, corresponding with the belching of the spring. the gas emitted from this fissure is so strong that it would suffocate a person, holding his head near the ground. to the rear of this, across the road, are mounds fifty or sixty feet in height; these were entirely dry. up this creek is very good grazing for cattle, but there are found some marshy places contiguous. the bottom upon the opposite side of the river is four or five miles in width, and covered with a good coat of grass. the soil looks good; and if the seasons are not too { } short, would produce well. the mountain upon the south side is covered with heavy pine timber; on the north side but little timber was observed; what little was noticed consisted principally of scrubby cedars. antelope found in abundance. the water, in many of the springs, is sufficiently strong to raise bread, equally as well as saleratus or yeast. were it not for their remote situation, these springs would be much resorted to, especially during the summer months. the country is mountainous, and its altitude so great, that the air is always cool, and consequently must be healthy. companies wishing to remain for a length of time at the springs, would pursue a proper course in driving their cattle over the river, as good grazing can thereby be had. _august ._ we traveled about nineteen miles. five miles brought us to where the road leaves the river, and bears northward through a valley. the river bears to the southward and empties its waters into big salt lake.[ ] the range of mountains bounding the north side of the river here comes to within a half mile of it, then bears off to the north, leaving a valley of about seven or eight miles in width between it and a range coming from lewis river, and extending south towards salt lake. the range bounding the south side of the river comes abruptly to the stream at this point, presenting huge and cumbrous masses of basaltic rock, but it is generally covered with heavy timber. at this point two trails are found: one striking west, across the valley, to the opposite side; the other, which is the nearest and best, follows around the point, hugging the base of the mountain for several miles. two and one half miles distant, and immediately beneath a cliff of rocks by the road side, is to be found a soda pool. a little spring of cool soda water runs out at the base of the rock, and a basin of eight or ten yards in extent, and about two and one half feet high has been formed. inside of this, is a pool of water;--the material composing the bank around, is of a white color. in a few miles travel, we crossed several spring branches. we then directed our course through the plain for some eight or nine miles, to where we encamped. our camp was located near a spring branch; but a small quantity of wood was found; grazing was excellent. from where the road leaves the river, the country presents every appearance of having been volcanic at some period. craters are yet standing in the plain, exhibiting positive evidence of this fact. a large mound has been formed by the lava ejected from this crater. in the centre is { } a deep cavity; now partially filled, from the falling in of the masses of bank surrounding it. in every direction the eye rests upon fragments of rock, which have been thrown out in a hot and burning condition, many of them melted and united; pieces resembling broken junk bottles or black glass lay scattered over the plain. the valley for ten or twelve miles is covered with stone of this description. in many places the rocks have been lifted or bulged up to an elevation of ten or fifteen feet, the top has been burst asunder, presenting a cavity of eight or ten feet in width, caused by the fragments having been cast out; the depth of the cavity is from twenty to thirty feet, the sides have a black appearance, and exhibit indications of having been burned; at other places the rock had been lifted up, and elevated above the surface of the earth some five or six feet, and about the same in width, having numerous small apertures in it, the centre being concave. the stone forms a complete arch. at other places the rock has been rent, and a chasm of thirty or forty feet in depth and from two to ten feet in width, has been the result. these chasms are about one quarter of a mile in length. the fragments lay in every direction. the country over this plain is rather barren; but at certain seasons of the year, is covered with grass, which during the summer months dies, leaving but little appearance of vegetation. after we had halted for the night, three families who had separated from our company at the soda springs, passed us. a few hours had elapsed, and we espied one of their number returning post haste to our camp. when he arrived, he was so paralysed with fear, that it was with difficulty we obtained from him the cause of his alarm. it appeared evident, from his statement, that a party of snake indians meditated an attack upon their party. we dispatched a company to their relief, but soon had the gratification to witness the return of their wagons to our camp. it appears that one of their number had marched about two miles in advance of the wagons, when he was discovered by a party of snake indians, lurking in the vicinity, who immediately gave him chase, at every step uttering the most terrific yells, and endeavoured to surround him; but as he was astride a fleet american courser, he succeeded in outstripping them, and arrived at the wagons in time to prepare for their approach. the wagons were then in a deep ravine, and could not be seen, by the indians in pursuit, until within seventy-five yards. as soon as the indians discovered { } their proximity to the wagons they commenced a precipitate retreat, and the emigrants rejoined our party. _august ._ we traveled this day about fifteen miles. the road for seven miles is up the valley; it then takes over the mountain, to the waters running into snake or lewis river. the high range of mountains which bears off towards _salt lake_, terminates near the road on the left. the road follows a ravine, and winds about among the hills, and thickets of quaking aspen, until it reaches a spring branch, down which it follows, to near fort hall. over the ridge, and for two miles down the branch, there is but little grass found. at the distance of three miles, on our left up the mountain, were several patches of snow. a few of our party brought some of the snow to our camp. _august ._ this day we made about eighteen miles. for ten miles the road is very good. along the stream is found willow brush, answering for fuel. the last seven miles is over a sandy plain; it was dry, and very heavy traveling. our camp was at a large spring of cold water; grazing was very good. _august ._ we traveled but five miles, which brought us to fort hall.[ ] this is a trading post in the possession of the _hudson's bay company_. like the forts on the east side of the mountains, it is built of mud or adobes. (this term applies to sun-burnt brick.) they are of a similar construction. at each corner is a bastion, projecting out some eight or ten feet, perforated with holes for fire-arms. captain grant is now the officer in command; he has the bearing of a gentleman.[ ] the garrison was supplied with flour, which had been procured from the settlements in oregon, and brought here on pack horses. they sold it to the emigrants for twenty dollars per cwt., taking cattle in exchange; and as many of the emigrants were nearly out of flour, and had a few lame cattle, a brisk trade was carried on between them and the inhabitants of the fort. in the exchange of cattle for flour, an allowance was made of from five to twelve dollars per head. they also had horses which they readily exchanged for cattle or sold for cash. the price demanded for horses was from fifteen to twenty-five dollars. they could not be prevailed upon to receive anything in exchange for their goods or provisions, excepting cattle or money. the bottoms here are wide, and covered with grass. there is an abundance of wood for fuel, fencing, and other purposes. { } no attempt has, as yet, been made to cultivate the soil. i think the drought too great; but if irrigation were resorted to, i doubt not it would produce some kinds of grain, such as wheat, corn, potatoes, &c. our camp was located one mile to the southwest of the fort; and as at all the other forts, the indians swarmed about us. they are of the snake tribe, and inhabit the country bordering on lewis and bear rivers, and their various tributaries. this tribe is said to be numerous; but in consequence of the continual wars which they have engaged in with the sioux, crows and blackfeet, their numbers are rapidly diminishing. snake river, which flows within one half mile of the fort, is a clear and beautiful stream of water.[ ] it courses over a pebbly bottom. its width is about one hundred and fifty yards. it abounds in fish of different varieties, which are readily taken with the hook. while we remained in this place, great efforts were made to induce the emigrants to pursue the route to california. the most extravagant tales were related respecting the dangers that awaited a trip to oregon, and of the difficulties and trials to be surmounted. the perils of the way were so magnified as to make us suppose the journey to oregon almost impossible. for instance, the two crossings of _snake_ river, and the crossing of the columbia, and other smaller streams, were represented as being attended with great danger; also that no company heretofore attempting the passage of these streams, succeeded, but with the loss of men, from the violence and rapidity of the current; as also that they had never succeeded in getting more than fifteen or twenty head of cattle into the willamette valley. in addition to the above, it was asserted that three or four tribes of indians, in the middle region, had combined for the purpose of preventing our passage through their country, and should we attempt it, we would be compelled to contend with these hostile tribes. in case we escaped destruction at the hands of the savages, a more fearful enemy, that of famine, would attend our march; as the distance was so great that winter would overtake us before making the passage of the cascade mountains. on the other hand, as an inducement to pursue the california route, we were informed of the shortness of the route, when compared with that to oregon; as also of many other superior advantages it possessed. { } these tales, told and rehearsed, were likely to produce the effect of turning the tide of emigration thither. mr. greenwood, an old mountaineer, well stocked with falsehoods, had been dispatched from california to pilot the emigrants through;[ ] and assisted by a young man by the name of mcdougal, from indiana, so far succeeded as to induce thirty-five or thirty-six wagons to take that trail.[ ] about fifteen wagons had been fitted out, expressly for california; and, joined by the thirty-five afore-mentioned, completed a train of fifty wagons; what the result of their expedition has been, i have not been able to learn.[ ] _august ._ this day we traveled about eight miles; five miles brought us to the crossing of portneth. this is a stream heading in the mountains near the soda springs, receiving numerous branches in this bottom, and is here about eighty yards in width.[ ] from this place, it is one mile to the crossing of a narrow slough, with steep banks. we crossed, and journeyed two miles to the bank of snake river, where we encamped. eight wagons joined us at our encampment. _august ._ we remained in camp. _august ._ this day we traveled about eight miles; which brought us to within one mile of the american falls.[ ] our camp was at the springs. an island in the river afforded excellent grazing for cattle. the country is extremely barren, being sandy sage plains.[ ] _august ._ we traveled about fifteen miles, which brought us to levy creek, or beaver-dam creek, as it is sometimes termed; it is a small stream; its waters flow down a succession of falls, producing a handsome cascade: it has the appearance of having been built up by beaver. the property of the water has turned the material into stone; the water appears to be impregnated with soda; the rocks along the bank are of that formation.[ ] the best camp is two miles farther on. _august ._ this day we traveled about eight miles, to cassia creek; here the california trail turns off. the road { } has been very dusty and heavy traveling. the country presents the same usual barren appearance.[ ] _august ._ this day we traveled about fifteen miles, and reached marshy springs; the road has been stony and dusty; the country mostly destitute of vegetation--nothing growing but the wild sage and wormwood.[ ] _august ._ we traveled but eleven miles. the road runs over a sage plain for eight miles, when it crosses the stream from the marsh; no water running, and but little standing in pools. at the distance of three miles the road strikes the river bottom, at the lower end of this, at which place the road leaves it; here was found a good camp. _august ._ we traveled about twenty-three miles. four miles brought us to goose creek. we found difficulty in crossing, and no good location for a camp.[ ] after seven miles travel we reached the river; but little grass. twelve miles brought us to dry branch; here also was unsuitable ground for encamping, as the water was standing in pools. the road we traveled was very dusty, and portions of it quite stony; here the river runs through a rocky _kanyon_. the cliffs are sometimes of the height of one thousand feet, and nearly perpendicular.[ ] above the _kanyon_, the river is two or three hundred yards wide; but at this place it is not more than one hundred and fifty feet; and at one place, where there is a fall of some twenty feet, its width does not exceed seventy-five feet. in our march this day i attempted to get down to the river, to procure a drink of water, but for six miles was unable to do so, owing to the steep precipitous banks. _august ._ we traveled but eight miles. the road lay over a sage plain to the bottom on rock creek.[ ] here we found a very good camp. _august ._ this day we traveled about twenty miles. after the distance of eight miles we arrived at the crossing of rock creek, (in a _kanyon_,) here we halted for dinner, and gave our cattle water. we then took up the bluff, and traveled over sand and sage plains for about twelve miles. when night overtook us we drove to the top of the river bluff and encamped. we drove our cattle one and a half miles down the bluff to the river for water. here we found a little grass and green brush, but it was not sufficient in quantity to supply our cattle, and we could do no better. we packed water up the bluff to our camp. the bluffs at this place exceed one thousand feet in height; they are of basalt. the road is on a high barren { } plain; a range of mountains is on our left hard by, and at a great distance on our right another range appears. _august ._ we traveled about twelve miles. nine miles brought us to where we pass down to the river bottom; from this point the distance to the river was three miles. a warm spring branch empties itself into the river at this place. emigrants would pursue a more proper course by encamping on the bottom, near the source of rock creek, then drive down to where the road crosses in a _kanyon_, then following the road for eight or nine miles to where the road leaves the bluff of the creek and encamp, driving their cattle into the creek bottom. from this place they can drive to salmon fall creek, just four miles below our present encampment, follow down this creek to its mouth, where will be found an excellent camp. _august ._ we traveled about nine miles, reaching the salmon falls.[ ] here are eighteen or twenty indian huts. salmon come up to these falls: the indians have an abundance of them, which they very readily dispose of for hooks, powder, balls, clothing, calico and knives, and in fact for almost anything we have at our disposal. the river at this place is a succession of cataracts for several miles, the highest of which does not exceed twelve feet. the grazing was very poor, and the country barren as usual. _august ._ we traveled about twelve miles; for two miles the road is up a sandy hill, it then strikes a sandy sage plain, over which it takes its course for ten miles. here night overtook us, as we had commenced our march at a very late hour on account of having lost some horses. our camp was on the top of the river bluff. it is one mile to water; but little grass was found. this day we found several head of cattle that had given out from fatigue of traveling. some of the companies had been racing, endeavoring to pass each other, and now they have reached a region where but little grass is found--are beginning to reap the reward of their folly. _august ._ our cattle were so much scattered that it was late in the day when we prepared to resume our march. we traveled about ten miles. at night we left the road, and directed our course to the right, down a ravine to the river, where we encamped. our cattle suffered much for want of food. _august ._ this morning we turned up the ravine for one and a half miles, and then struck up the hill to the road. three and a half miles brought us to where the road crosses { } the snake river. in coming down to the river bottom, there is a very steep hill. along the shore of this river was a little grass; there are two islands covered with grass, so that our cattle were soon repaid for their privations heretofore. the difficulties attending the crossing of this stream had been represented as being almost insurmountable; but upon examination we found it an exaggeration. from the main shore to first island there is no difficulty; from first to second island, turn well up, until nearly across, then bear down to where the road enters it. the water is not deep until nearly across, and not then if you keep well up stream. from second island to main shore is more difficult; it is about three hundred yards wide and the current very rapid. strike in, heading well up for two rods, then quartering a little down until eight or ten rods from shore: then quartering a little up for fifteen or twenty rods; then strike up for the coming out place; the bottom is gravelly. with the exception of a few holes, the water for the first fifteen rods is the deepest part of the ford. the bottom is very uneven; there are holes found of six or eight feet in width, many of them swimming. those crossing this stream can escape the deepest of these holes by having horsemen in the van and at each side; it is necessary that there be attached to each wagon four or six yoke of oxen, the current being swift; and in the passage of these holes, previously alluded to, when one yoke is compelled to swim, the others may be in shallow water. great care must be taken that these teams be not beat down too low and pass over the ripple; and to prevent such a casualty, two drivers must attend each wagon. before attempting the passage of the river all articles liable to damage, from coming in contact with the water, should be piled on the top of the wagon bed. we commenced crossing at eleven o'clock, a. m., and at one o'clock, p. m., we effected the passage of the stream, and were so fortunate as to land our goods free from all damage. we traveled two miles to a spring branch and pitched our encampment. good grass, wood and water, were procured in plenty.[ ] _august ._ we traveled but six miles. soon after leaving camp we directed our course up a stony hill; thence over a sage plain to a spring branch.[ ] we pursued our way up this branch for one mile, where we obtained good grazing for our cattle; a high range of hills appearing on our right, at the distance of two miles, an occasional grove of pine timber upon them; but, in general, the mountains here are covered with { } grass; numerous streams issuing from their sides, and pouring their waters in the plain below. there is no appearance of vegetation until you reach the low bottoms immediately along the water's edge. the road traveled to-day was quite stony. the indians along this road are expert in theft and roguery. a young man having a horse which he had taken much pains to get along, when night approached, staked and hobbled him, that he might not stray off; but at night an indian stole into the camp, unhobbled the horse, cut the rope, and took him off, leaving the young man undisturbed in his sleep. a few days thereafter, this indian effected a sale of the horse to one of a party of emigrants traveling behind us. _august ._ we remained in camp. _august ._ we traveled about ten miles; our camp was located on a small rivulet, at a quarter of a mile's distance above the road, and near the mouth of the _hot_ spring branch. between the road and the mountain good grazing was found. the river is about eight miles on our left; the space between is a barren, sandy sage plain. _august ._ we traveled about sixteen miles; one mile brought us to the hot springs, near which the road passes.[ ] these springs are in a constant state of ebullition. they number from five to six, extending over a surface of two to three yards, all uniting and forming a stream of one yard in width and about three inches deep, running quite rapid. the water is sufficiently hot for culinary purposes. about fifteen rods off, approaching the mountain, which is half a mile distant, are similar springs, the waters of which flow into a reservoir a short distance below. an ox, belonging to our party, appeared desirous to test the qualities of the water afforded by these springs. his owners, seeing his inclination, attempted to arrest his steps, but failed; when he arrived at the brink of one of them, and stuck his nose in, preparatory to indulging in a draught of the delicious nectar, he immediately wheeled, and made the welkin ring by his bellowing; kicking and running, he showed he was evidently displeased with himself. our camp was on barrel creek bottom, which is very narrow. _august ._ we traveled about eighteen miles, crossing several running branches. the road is near the base of the mountain; wild sage and grease wood found in plenty. encamped on charlotte's fork, a small branch. _august ._ we traveled about eighteen miles, which brought us to bois river, a stream of forty or fifty yards in { } width, and abounding in salmon; its banks are lined with balm of gilead timber.[ ] the bottoms here are two or three miles wide, and covered with grass. _august ._ we traveled about eleven miles. the road is sometimes on bottom, at others, on bluff. the indians are very numerous along this stream; they have a large number of horses; clothing is in much demand; for articles of clothing costing in the states ten or twelve dollars, a very good horse can be obtained. _august ._ we traveled about miles. the road pursues its course down the valley of the bois river. _september ._ we traveled about thirteen miles. two miles from camp we crossed bois river. some of the bottoms are covered with grass, others with wild sage and grease wood. the road was very dusty. there is not much timber along the stream, but great quantities of brush. _september ._ we reached fort bois. this is a trading post of the hudson's bay company, established upon the northern side of snake or lewis river, and one mile below the mouth of bois river. this fort was erected for the purpose of recruiting, or as an intermediate post, more than as a trading point. it is built of the same materials, and modeled after fort hall, but is of a smaller compass. portions of the bottoms around it afford grazing; but, in a general view, the surrounding country is barren.[ ] north of this fort is an extensive plain, which has an extremely unfertile appearance; but, i am informed, that during the winter and spring months it affords good grazing. at this fort they have a quantity of flour in store, brought from oregon city, for which they demanded twenty dollars per cwt., in cash; a few of our company being in extreme want, were obliged to purchase at this exorbitant price. at this place the road crosses the river; the ford is about four hundred yards below the fort, and strikes across to the head of an island, then bears to the left to the southern bank; the water is quite deep, but not rapid; it swam some of our smallest work cattle; the bottom is solid and smooth. we cut poles, and laid them across the top of our wagon-beds, piling our loading on them; answering a twofold purpose--preventing our loading from damage, as also by its weight keeping the wagons steady and guarding them against floating. in about three hours we effected our passage in safety, but few of the goods getting wet. we went up the bottom a half mile, and there encamped; { } driving our cattle on an island hard by, to graze. fort bois is about two hundred and eighty miles below fort hall, following the wagon road; but by crossing the river at fort hall, and going down on the north side, the distance would be lessened, as the river bears off south, and then north; and judging from the appearance of the country, i think a road may be found, equal, if not better than the one on the south side; and, i doubt not, the grazing will be found better.[ ] _september ._ we traveled fifteen miles, to malheur, or malore, as it is sometimes called: here is a good camp. this is a stream of about ten yards in width, having its source in a range of mountains to the southwest, and pursuing its meanderings through a succession of hills, sage and sand plains, and occasionally a fertile bottom, until it arrives at snake river, into which it empties. a few miles below fort bois, its course from its source is north of east. along its banks, near to where the road crosses it, are a number of hot springs; they are of the same temperature of those between the two crossings of snake river.[ ] here we met dr. white, a sub-indian agent, accompanied by three others, on their way from oregon to the states.[ ] at this place are two trails; the fork is in the bottom above the crossing of the creek, and there is a possibility of emigrants pursuing the wrong route. i do not deem it amiss to give some particulars in relation to this road. mr. meek, who had been engaged as our pilot, but had previously gone in advance of the companies who had employed him, and who had after reaching fort hall, fitted up a party to pilot through to oregon, informed the emigrants that he could, by taking up this stream to near its source, and then striking across the plains, so as to intersect the old road near to the mouth of deshutes or falls river, save about one hundred and fifty miles travel; also that he was perfectly familiar with the country through which the proposed route lay, as he had traveled it; that no difficulty or danger attended its travel. he succeeded in inducing about two hundred families to pursue this route; they accordingly directed their course to the left, up this creek, about ten days previous to our arrival at the forks. _september ._ we traveled about twenty miles; ten miles brought us to a sulphur spring, and ten miles more to birch creek, where we encamped.[ ] the country is considerably rolling, and much of it barren: no timber found. _september ._ we traveled about eight miles; three miles { } brought us to snake river, and five more to burnt river. the road is hilly but good; the country mountainous. here is a good camp. _september ._ we made about twelve miles. the road is up burnt river, and the most difficult road we have encountered since we started. the difficulties arise from the frequent crossings of the creek, which is crooked, narrow and stony. we were often compelled to follow the road, in its windings for some distance, over high, sidelong and stony ridges, and frequently through thickets of brush. the stream is about ten or twelve yards in width, and is generally rapid. the hills are high, and covered with grass.[ ] _september ._ this day we traveled about twelve miles. the road exceeded in roughness that of yesterday. sometimes it pursued its course along the bottom of the creek, at other times it wound its way along the sides of the mountains, so sidelong as to require the weight of two or more men on the upper side of the wagons to preserve their equilibrium. the creek and road are so enclosed by the high mountains, as to afford but little room to pass along, rendering it in some places almost impassable. many of the mountains viewed from here seem almost perpendicular, and of course present a barren surface. the eye is occasionally relieved by a few scrubby cedars; but along the creek is found birch, bitter cottonwood, alder, &c., in quantity, and several kinds of brush and briars, so impenetrable as to preclude ingress. the road pursues its course through these thickets, the axe having been employed; but it is so very narrow as almost to prevent travel. a little digging, and the use of the axe, united with the erection of bridges, would make this a very good road. at first view this road appeared to us impassable, and so difficult of travel, as almost to deter us from the attempt; but knowing that those who had preceded us had surmounted the difficulties, encouraged us to persevere. it required much carefulness, and the exercise of skill on the part of our drivers to pass along and avoid the dangers of the way. we pursued our route without any loss, with the exception of that attending the breakage of two wagon tongues, done in crossing some deep ravines. we also experienced difficulty in finding our cattle, which had strayed away. five miles from camp the road turns up a spring branch to the right, which we followed two miles, crossing it very frequently; it then turns up the mountain of the left, until it strikes another ravine. we followed { } up this for one mile, where water makes its appearance. here is found a good camp. the road then takes to the left up the hill, and then down to a dry branch: here is a good camp, one mile to running water. this portion of the road is solid and of good travel. _september ._ this day we traveled about fourteen miles. two miles brought us to the creek again; the bottom here is of some extent. we followed this bottom for the distance of one mile; the road then led up the right hand branch, crossing several small branches, taking up a ravine to the left over a ridge, until it reaches the fork of the river; pursues its route up this river some six or seven miles, crossing it twice, then directs its course to the right, through a narrow ravine over the mountain, then strikes dry branch; we followed up this branch to running water, and near to a scrubby pine; here we encamped. the road has been solid and good. the hills and valleys appear well covered with grass. _september ._ this day we traveled about sixteen miles. the road runs up the branch for one mile, then turns to the left over the hill, pursuing a very winding course for some thirteen miles, until it reaches a slough in powder river bottoms. powder river is a stream of some eight or ten yards in width, having its source in the high range of mountains on our left, which mountains in many places are covered with snow.[ ] an abundance of pine timber is found covering the sides of these mountains, sometimes extending far down into the bottoms, which here are between six and seven miles in width. the soil is fertile and would undoubtedly yield abundantly. to our right, at the distance of fifteen or twenty miles, is presented a high range of mountains, their base covered with grass, their sides with heavy pine timber. at their summit they are entirely destitute of vegetation: some of these are very lofty, their peaks present a very lustrous appearance, resembling the snow mountains. this shining, dazzling appearance they possess, is derived i think from the material of which they are composed, being a kind of white clay. the valley between powder river and this range is very rolling, portions of it covered with wild sage. wild fowl abound in this valley. _september ._ this day we traveled about ten miles; our course was down the valley of powder river; eight miles brought us to the crossing of the same, one mile to the middle { } fork, and one to the third fork. there is good ground for encampments at any point along these streams. at our camp we were visited by an indian chief of the tribe caäguas,[ ] accompanied by his son. he was of a friendly disposition; his object in visiting us was principally to barter for cattle; he had in his possession thirty or more horses. _september ._ this day we traveled about twelve miles; for the first five or six miles, the road was quite level and good, it then follows a ridge dividing powder river and grand round; this portion of the road is very uneven and stony. the road leading down into the valley of grand round, is circuitous, and its difficulty of travel enhanced by its roughness; it is about one and a half miles in length, to where it reaches the bottom. grand round is a valley, whose average width does not exceed twenty miles, and is about thirty miles in length; a stream of water of some twenty yards in width passes through this valley, receiving considerable addition to its volume from the many rivulets that pour down their waters from the mountains, by which this valley is enclosed. the bottoms are of rich friable earth, and afford grass of various kinds, among others that of red clover. there is a root here found in great abundance, and known as the _camas_, which is held in high repute by the indians for some medicinal qualities it is thought to possess; wild flax and a variety of other plants grow in luxuriance, like to those i have observed in the western prairies.[ ] the streams are generally lined with timber, and abound in salmon and other varieties of fish. upon the sides of the mountains and extending down into the valley are found beautiful groves of yellow pine timber. these mountains are places of resort for bear, deer, and elk. this bottom affords an excellent situation for a settlement, possessing more advantages in that respect, than any found since our departure from the lower platte river. north of this and at the distance of about twenty miles, is another valley, similar in appearance to this, but of greater extent.[ ] the streams having their course through this valley empty into lewis river, which is eighty or ninety miles to the north. our camp was at the foot of the hill, convenient to a spring branch. at twilight we were visited by four or five of the caäguas, the tribe alluded to previously. an incident quite worthy of note, occurred at this place. the { } chief (aliquot by name)[ ] who had joined us at our other encampment, and had pursued this day's journey in company, had pitched his tent some three hundred yards to the rear of our camp. in the evening, in strolling about the camp, i came near his tent, and entered with the intention of employing his squaw in the soling of my moccasins; while she was engaged in this employment, a conversation had sprung up between the old chief and myself, in which he took occasion to ask me if i were a christian, as also whether there were many upon the road; to which questions i of course answered in the affirmative, supposing that he merely wished to know, whether i classed myself with the heathen or christians. on my return to our camp, some one of our party proposed that we should while away an hour or so, in a game at cards, which was readily assented to. we had but engaged in our amusement, when the old chief aliquot made his appearance, holding a small stick in his hand; he stood transfixed for a moment, and then advanced to me, raising his hand, which held the stick in the act of chastising me, and gently taking me by the arm, said "captain--captain--no good; no good." you may guess my astonishment, at being thus lectured by a "wild and untutored savage," twenty five hundred miles from a civilized land. i inwardly resolved to abandon card playing forever. _september ._ this day we traveled about seven miles; the road runs across the upper end of grand round, to a small spring branch, when it again ascends the mountains. at this spring branch we pitched our camp, and while here, were visited by great numbers of indians, including men, squaws, and papooses. these indians have decidedly a better appearance than any i have met; tall and athletic in form, and of great symmetry of person; they are generally well clad, and observe pride in personal cleanliness. they brought wheat, corn, potatoes, peas, pumpkins, fish, &c. which they were anxious to dispose of for cloths, calico, napkins and other articles of wearing apparel; they also had dressed deer skins and moccasins; they had good horses, which they offered in exchange for cows and heifers; they would gladly exchange a horse for a cow, esteeming the cow as of equal value. they remained with us throughout the day, and when evening approached returned to their lodges along the river two miles distant. i noticed a few of the nez percés (pierced noses) tribe of indians among them.[ ] both of these tribes are under the influence and control of two presbyterian missionaries, dr. { } whitman and mr. spalding, who have resided among them for the last ten years; the former among the caäguas, which inhabit the country bordering on wallawalla river and its tributaries, the blue mountains and grand round: the latter among the nez percés who inhabit the country lying along lewis river, and its tributaries, from the eastern base of the blue mountains to the columbia river.[ ] these missionary establishments are of a like character to those farther north. as i shall have occasion to speak of these missionaries, as also the beneficial results which have flowed from their residence among the savages, i will return to my travels. some of our party becoming scant of provision, started for dr. whitman's, the missionary establishment referred to above, intending to rejoin us at umatillo river, my old friend aliquot generously proffered his services as pilot for them, which were readily accepted. _september ._ this day we traveled about seven miles. from grand round the road ascends the blue mountains, and for two miles is quite steep and precipitous; and to such an extent, as to require six yoke of oxen, or more, to be attached to a wagon; from the summit of these mountains is presented a rolling country for some four miles, alternately prairie and groves of yellow pine timber. in the prairie the grass is quite dry, but among the groves of timber it is green and flourishing. the road is very stony; at the end of four miles it takes down the mountain to grand round river, one mile in distance; it then crosses. here is another bottom covered with grass and bushes, where we pitched our encampment. it is a remarkable circumstance that when individuals are engaged in conversation, their voices can be heard distinctly at a quarter of a mile distance; the discharge of a gun resembles that of a cannon, and is echoed from hill to hill, the reverberations continuing for some length of time. _september ._ this day we traveled about ten miles. the road ascended the mountain for one and a half or two miles, then wound along the ridge crossing many deep ravines, and pursuing its route over high craggy rocks; sometimes directing its course over an open plain, at others through thick groves of timber, winding among fallen trees and logs, by which the road was encumbered. the scenery is grand and beautiful, and cannot be surpassed; the country to a great distance is rough in the extreme. it may strictly be termed a timber country, although many small prairies are dotted over its surface. { } the valleys are beautiful and the soil presents a very rich appearance. we encamped in an opening, on the south side of a range of mountains running to the north, and found water in plenty in the bottom of the ravine, on our left, about one fourth of a mile from the road. the timber growing in this region is principally yellow pine, spruce, balsam fir, and hemlock; among the bushes i noticed laurel. _september ._ this day we traveled about nine miles, over the main ridge of the blue mountains. it is mostly a timbered country through which we passed; the scenery is delightful, resembling in grandeur that presented on yesterday's travel.[ ] we had a fine view of the cascade mountains to the west. mount hood, the loftiest of these, was plain to the view. it was some one hundred and fifty miles distant, and being covered with snow, appeared as a white cloud rising above those surrounding it. to the north of mount hood, and north of the columbia, is seen mount saint helen. we halted for the night at lee's encampment.[ ] _september ._ we traveled about sixteen miles this day, which brought us to umatillo river. here is an indian town, the residence of the principal chiefs of the caäguas.[ ] at this time they were mostly in the mountains hunting. the road has been good; the first twelve miles led us through a well timbered country, the last four miles over prairie; the country has a dry appearance; the banks of the streams are lined with cottonwood, balm of gilead, choke cherries and every variety of bushes. the indians have a few cultivated fields along this stream; they raise wheat, corn, potatoes, peas and a variety of vegetables. after the planting of crops, the labour of tending devolves upon the squaws, or is done by slaves, of which they have a number, being captives taken in their expeditions against other tribes. they brought us the different products of their farms for traffic. as they expressed great eagerness to obtain clothes, and we had a like desire to obtain vegetables, a brisk traffic was continued until dark. on yesterday morning when about ready to start, we discovered that eight or ten of our work cattle were missing. four of our number, myself included, remained to hunt them up. in our search we rambled over the mountains for several miles, and at night found them about three miles from camp; we then followed the road and arrived at lee's encampment just after dark. this morning an ox, a mule and a horse were missing. three of us remained to hunt for them. we searched the prairies and { } thickets for miles around, but were unsuccessful. we then pursued the road to umatillo, which we reached at night. _september ._ at eight o'clock this morning, the men who had left us at grand round for dr. whitman's station, rejoined us, accompanied by the doctor and his lady.[ ] they came in a two horse wagon, bringing with them a plentiful supply of flour, meal and potatoes. after our party had taken some refreshment, the march was resumed; our visitors accompanying us to our camp four miles down the river. our present location affords but little grazing. the doctor and lady remained with us during the day; he took occasion to inform us of the many incidents that marked his ten years' sojourn in this wilderness region, of a highly interesting character. among other things, he related that during his residence in this country, he had been reduced to such necessity for want of food, as to be compelled to slay his horse; stating that within that period, no less than thirty-two horses had been served up at his table. it appears that the soil has never been cultivated until within a few years back; but at this time, so much attention is given to the culture of the soil, which yields abundantly, that the privations of famine, or even scarcity, will probably not again recur. the condition of the savages has been greatly ameliorated and their improvement is chiefly attributable to the missionary residents. they have a good stock of cattle, hogs, sheep, &c., and raise an amount of grain not only sufficient to supply their own wants, but affords a surplus. these tribes differ in their appearance and customs from any we have met. they recognise the change which has taken place, and are not ignorant that it has been effected by the efforts and labor of the missionaries. on the other hand, they acknowledge the benefits derived by yielding to their instructions. they have embraced the christian religion, and appear devout in their espousal of christian doctrines. the entire time of the missionaries is devoted to the cause for which they have forsaken their friends and kindred; they have left the comforts of home, and those places which have been endeared by early associations, for the wild wilderness and the habitation of the savage, prompted by those principles of charity and benevolence which the christian religion always inculcates. their privations and trials have been great, but they have borne them with humility and meekness, and the fruits of their devotion are now manifest; and if any class of people deserve well of their country, or are entitled to the thanks of { } a christian community, it is the missionaries. having no family of their own, they generously take families of orphan children, raise and educate them in a manner that is worthy of all commendation.[ ] _september ._ this morning, after breakfast, our worthy guests left us and we took up our line of march, traveling down the umatillo valley for some twelve miles, crossing the _stream_ twice. the road then takes up the bluff to the right, over a high grassy plain. our encampment was pitched on the bluff on the left of the road. the water required at camp, was packed about one and a half miles, being procured at the base of the bluffs, up which we had to climb. the country is very rolling, covered with dry grass; it is mostly prairie. from this point two snowy peaks appear in view, as also the great valley of the columbia; in truth it may be said that our present location is in that valley, although it is generally termed the middle region. _september ._ this day we traveled about ten miles. eight miles brought us to the river; we followed the banks of the river for two miles, and encamped; good grazing is found. the stream as usual is lined with timber, but with this exception, it is a rolling prairie as far as can be seen, extending to the north and south, and bounded on the east and west by the blue and cascade mountains. whilst at this camp, we were visited by the wallawalla indians; they reside along the lower part of the wallawalla, the low bottoms of the umatillo and the columbia, from the mouth of lewis river for one hundred miles south. they furnished us with potatoes and venison. in their personal appearance they are much inferior to the caäguas, and want the cleanliness that characterizes that tribe.[ ] _september ._ this day we traveled about fifteen miles. for the first eight miles the soil was remarkably rich in appearance, an admixture of sand and loam, and covered with good grass; the stream is lined with timber, in common with many of those that we have passed; the last seven miles was sandy and heavy traveling. the columbia river presents itself on our right, at the distance of four miles. the river is in view for miles along this road. the prickly pear is found in abundance. it was our intention to have reached the columbia before encamping, but from the difficult traveling, were compelled to encamp on the sandy plain, deprived of water, wood and grass. { } _september ._ this morning at daylight we started for the columbia, distance three and a half miles. the river at this place is from a half to three-fourths of a mile in width. it is a beautiful stream; its waters are clear and course gently over a pebbly bottom. along the columbia, is a strip of barren country of twelve miles in width; a little dry grass in bunches, prickly pear and grease wood, dot its surface. with this exception, its appearance was wild and solitary to a great degree; but sterile as it is in appearance, the view is relieved by the majesty of the river that flows by it. immediately along the bank of the columbia is a narrow bottom, covered with green grass, cucklebur, wild sunflower, pig weed, and several other kinds of weeds, all of which were in full bloom. there was something inspiriting and animating in beholding this. a feeling of pleasure would animate our breasts akin to that filling the breast of the mariner, when after years of absence, the shores of his native land appear to view. we could scarce persuade ourselves but that our journey had arrived at its termination. we were full of hope, and as it was understood that we had but one more difficult part of the road to surmount, we moved forward with redoubled energy; our horses and cattle were much jaded, but we believed that they could be got through, or at least the greater part of them. the indians were constantly paying us visits, furnishing us with vegetables, which, by the by, were quite welcome; but they would in return demand wearing apparel, until by traffic, we were left with but one suit. we were compelled to keep a sharp look out over our kitchen furniture, as during these visits it was liable to diminish in quantity by forming an attachment towards these children of the forest, and following them off. many of these savages were nearly naked; they differ greatly from the caäguas, being much inferior; they are a greasy, filthy, dirty set of miscreants as ever might be met. _september ._ this day we remained in camp, engaged in traffic with the indians. some of our party were in want of horses, and took this occasion to supply themselves. _september ._ this day we traveled about twenty miles. the first eight miles the road is heavy traveling; the remaining portion however is much better, with the exception of the last five miles, which proved to be quite rocky. there is an occasional green spot to be found, but the whole distance we have traveled since we first struck the river cannot be regarded { } as more than a barren sandy plain. in our route this day we passed several indian villages; they are but temporary establishments, as their migratory disposition will not justify more permanent structures. _september ._ this day we traveled but sixteen miles. after a march of seven miles, we arrived at a small creek, a good situation for encamping; nine miles more brought us to dry branch, from whence we proceeded down the bluff to the river; a great portion of the road traveled was sandy and heavy.[ ] _september ._ this day we traveled about fourteen miles. the road was quite hilly; sometimes it followed the bank of the river, at others pursued its course along the high bluff. the river is confined to a very narrow channel; country very barren, and the bluffs of great height. _september ._ this day we traveled about three miles. the road ascends the bluff; is very difficult in ascent from its steepness, requiring twice the force to impel the wagons usually employed; after effecting the ascent, the sinuosity of the road led us among the rocks to the bluff on john day's river; here we had another obstacle to surmount, that of going down a hill very precipitous in its descent, but we accomplished it without loss or injury to our teams. this stream comes tumbling through kanyons and rolling over rocks at a violent rate. it is very difficult to cross, on account of the stone forming the bed of the creek; its width, however, does not exceed ten yards. the grazing is indifferent, the grass being completely dried.[ ] _september ._ this morning we discovered that several of our trail ropes had been stolen. our horses could not be found until very late; notwithstanding the delay thus occasioned we traveled some twenty miles. the road for the first three miles is up hill; it then pursues its course over a grassy, rolling plain for fifteen or sixteen miles, when it again descends the bluff to the bank of the columbia, which we followed down for one mile and there encamped. the bluffs are very high and rocky. we suffered great inconvenience from the want of fuel, as there is none to be found along the columbia; we collected a few dry sticks of driftwood and weeds, which enabled us to partially cook our food. the road we traveled this day was very good. _september ._ this day we traveled about twelve miles. two miles brought us to the crossing of de shutes or falls { } river; a stream having its source in a marshy plain bordering on the great basin, and receives numerous tributaries heading in the cascade mountains, the eastern base of which it follows and pours its waters into the columbia. the mouth of de shutes river is near fifteen miles east of the dalles or eastern base of these mountains; the river is about one hundred yards wide, and the current very rapid; the stream is enclosed by lofty cliffs of basaltic rock. four hundred yards from the columbia is a rapid or cascade. within the distance of thirty yards its descent is from fifteen to twenty feet.[ ] the current of this stream was so rapid and violent, and withal of such depth, as to require us to ferry it. some of the companies behind us, however, drove over at its mouth by crossing on a bar. preparatory to ferrying, we unloaded our wagons, and taking them apart, put them aboard some indian canoes, which were in waiting, and crossed in safety; after putting our wagons in order of travel, and preparing to start, we discovered ourselves minus a quantity of powder and shot, two shirts and two pairs of pantaloons, which the indians had appropriated to their own use, doubtless to pay the trouble of ferriage. in the morning a quarrel ensued among the indians respecting their canoes, closing in a _melee_, and such a fight i never before witnessed; stones and missiles of every description that were at hand were used with freedom. we did not interfere with them, and when they were tired of fighting the effects of the battle were visible in numerous instances, such as bloody noses and battered, bleeding heads. we ascended the bluff and traveled along the brink for several miles, then crossed over the ridge to a small creek; after crossing it, we took up a dry run for one or two miles, thence over a ridge to a running branch, and there encamped. the country through which we traveled this day was extremely rough; all prairie, and covered with grass, but very dry. _september ._ this day we traveled about five miles, which brought us to the _dalles_, or methodist missions.[ ] here was the end of our road, as no wagons had ever gone below this place. we found some sixty families in waiting for a passage down the river; and as there were but two small boats running to the cascade falls, our prospect for a speedy passage was not overly flattering. _september ._ this day we intended to make arrangements for our passage down the river, but we found upon inquiry, that the two boats spoken of were engaged for at least { } ten days, and that their charges were exorbitant, and would probably absorb what little we had left to pay our way to _oregon city_. we then determined to make a trip over the mountains, and made inquiries respecting its practicability of some indians, but could learn nothing definite, excepting that grass, timber and water would be found in abundance; we finally ascertained that a mr. barlow and mr. nighton had, with the same object, penetrated some twenty or twenty-five miles into the interior, and found it impracticable. nighton had returned, but barlow was yet in the mountains, endeavoring to force a passage; they had been absent six days, with seven wagons in their train, intending to go as far as they could, and if found to be impracticable, to return and go down the river.[ ] we succeeded in persuading fifteen families to accompany us in our trip over the mountains, and immediately made preparations for our march. on the afternoon of the first of october, our preparations were announced as complete, and we took up our line of march; others in the mean time had joined us, and should we fall in with barlow, our train would consist of some thirty wagons. but before proceeding with a description of this route, i will enter into a detail of the difficulties undergone by the company of two hundred wagons, which had separated from us at malheur creek, under the pilotage of mr. meek. it will be remembered that s. l. meek had induced about two hundred families, with their wagons and stock, to turn off at malheur, with the view of saving thereby some one hundred and fifty miles travel; and they had started about the last of august. they followed up malheur creek, keeping up the southern branch, and pursuing a southern course. for a long time they found a very good road, plenty of grass, fuel and water; they left these waters, and directed their course over a rough mountainous country, almost entirely bereft of vegetation, were for many days destitute of water, and when they were so fortunate as to procure this indispensable element, it was found stagnant in pools, unfit even for the use of cattle; but necessity compelled them to the use of it. the result was, that it made many of them sick; many of the cattle died, and the majority were unfit for labor. a disease termed camp-fever, broke out among the different companies, of which many became the victims. { } they at length arrived at a marshy lake, which they attempted to cross, but found it impracticable; and as the marsh appeared to bear south, and many of them were nearly out of provisions, they came to a determination to pursue a northern course, and strike the columbia. meek, however, wished to go south of the lake, but they would not follow him. they turned north, and after a few days' travel arrived at deshutes or falls river. they traveled up and down this river, endeavoring to find a passage, but as it ran through rocky _kanyons_, it was impossible to cross. their sufferings were daily increasing, their stock of provisions was rapidly wasting away, their cattle were becoming exhausted, and many attached to the company were laboring under severe attacks of sickness;--at length meek informed them that they were not more than two days' ride from the dalles. ten men started on horseback for the methodist stations, with the view of procuring provisions; they took with them a scanty supply of provisions, intended for the two days' journey. after riding faithfully for ten days, they at last arrived at the dalles. on their way they encountered an indian, who furnished them with a fish and a rabbit; this with the provision they had started with, was their only food for the ten days' travel. upon their arrival at the dalles they were so exhausted in strength, and the rigidity of their limbs, from riding, was so great, as to render them unable to dismount without assistance. they reached the dalles the day previous to our arrival. at this place they met an old mountaineer, usually called black harris, who volunteered his services as a pilot.[ ] he in company with several others, started in search of the lost company, whom they found reduced to great extremities; their provisions nearly exhausted, and the company weakened by exertion, and despairing of ever reaching the settlements. they succeeded in finding a place where their cattle could be driven down to the river, and made to swim across; after crossing, the bluff had to be ascended. great difficulty arose in the attempt to effect a passage with the wagons. the means finally resorted to for the transportation of the families and wagons were novel in the extreme. a large rope was swung across the stream and attached to the rocks on either side; a light wagon bed was suspended from this rope with pulleys, to which ropes were attached; this bed served to convey the families and loading in safety across; the wagons { } were then drawn over the bed of the river by ropes. the passage of this river occupied some two weeks. the distance was thirty-five miles to the dalles, at which place they arrived about the th, or th of october. some twenty of their number had perished by disease, previous to their arrival at the dalles, and a like number were lost, after their arrival, from the same cause. this company has been known by the name of the st. joseph company; but there were persons from every state of the union within its ranks. illinois and missouri, however, had the largest representation. the statements i have given are as correct as i could arrive at, from consultation with many of the members. this expedition was unfortunate in the extreme. although commenced under favorable auspices, its termination assumed a gloomy character.[ ] it has been stated that some members of the hudson's bay company were instrumental in this expedition, but such is not the fact. whilst i was at fort hall, i conversed with captain grant respecting the practicability of this same route, and was advised of the fact, that the teams would be unable to get through. the individual in charge at fort bois also advised me to the same purport. the censure rests, in the origin of the expedition, upon meek; but i have not the least doubt but he supposed they could get through in safety. i have understood that a few of the members controlled meek, and caused him to depart from his original plan. it was his design to have conducted the party to the _willamette valley_, instead of going to the dalles; and the direction he first traveled induced this belief. meek is yet of the opinion that had he gone round the marshy lake to the south, he would have struck the settlement on the willamette, within the time required to travel to the dalles. had he discovered this route, it would have proved a great saving in the distance. i do not question but that there may be a route found to the south of this, opening into the valley of the willamette.[ ] but i must again return to the subject of my travels. _october ._ at four o'clock, p. m., every thing was ready for our departure, and we pursued our way over the ridge, in a southern course. the country was very rolling, and principally prairie. we found excellent grazing. our camp was pitched on a small spring branch. _october ._ this day we made about ten miles, crossing several ravines, many of which had running water in them; { } the country, like that of yesterday's travel, proved to be very rolling; our camp was situated on a small spring branch, having its source in the mountain. _october ._ this morning i started on horseback in advance of the company, accompanied by one of its members. our course led us south over a rolling, grassy plain; portions of the road were very stony. after a travel of fourteen miles, we arrived at a long and steep declivity, which we descended, and after crossing the creek at its base, ascended a bluff; in the bottom are seen several small enclosures, where the indians have cultivated the soil; a few indian huts may be seen along this stream. meek's company crossed deshute's river near the mouth of this stream, which is five miles distant.[ ] after ascending, we turned to the right, directing our course over a level grassy plain for some five miles or more, when we crossed a running branch; five miles brought us to stony branch, and to scattering yellow pine timber. here we found barlow's company of seven wagons. barlow was absent at the time, having with three others started into the mountain two days before. we remained with them all night. _october ._ this morning myself and companion, with a scanty supply of provisions for a two days' journey, started on a westerly course into the mountains. from the open ground we could see mount hood. our object was to go south and near to this peak. for five miles the country was alternately prairie and yellow pine; we then ascended a ridge, which ascended gradually to the west. this we followed for ten miles. after the crossing of a little brushy bottom, we took over another ridge for four or five miles, very heavily timbered and densely covered with undergrowth. we descended the ridge for a short distance, and traveled a level bench for four miles; this is covered with very large and tall fir timber; we then descended the mountain, traveling westward for one and a half miles; we then came to a small branch, which we named rock creek.[ ] after crossing the creek, we ascended a hill for one fourth of a mile, then bore to the left around the hill, through a dense forest of spruce pine. after five miles travel from rock creek we came to a marshy cedar swamp; we turned to the left, and there found a suitable place for crossing. here is a stream of from five to six yards in width, when confined to one channel; but in many places it runs over a bottom of two rods in width, strewed with old moss { } covered logs and roots. the water was extremely clear and cold. four miles brought us to the top of the bluff of a deep gulf; we turned our course northward for two miles, when darkness overtook us, forcing us to encamp. a little grass was discernible on the mountain sides, which afforded our jaded horses a scanty supply. _october ._ at an early hour this morning, i proceeded down the mountain to the stream at its base. i found the descent very abrupt and difficult; the distance was one half mile. the water was running very rapid; it had the same appearance as the water of the _missouri_, being filled with white sand. i followed this stream up for some distance, and ascertained that its source was in mount hood; and from the appearance of the banks, it seems that its waters swell during the night, overflowing its banks, and subside again by day; it empties into deshute's river, having a sandy bottom of from two rods to half a mile wide, covered with scrubby pines, and sometimes a slough of alder bushes, with a little grass and rushes. we then ascended the mountain, and as our stock of provisions was barely sufficient to last us through the day, it was found necessary to return to camp. we retraced our steps to where we had struck the bluff, and followed down a short distance where we found the mountain of sufficiently gradual descent to admit of the passage of teams; we could then follow up the bottom towards _mount hood_, and as we supposed that this peak was the dividing ridge, we had reasonable grounds to hope that we could get through. we then took our trail in the direction of the camp; and late in the evening, tired and hungry, we arrived at rock creek, where we found our company encamped. barlow had not yet returned, but we resolved to push forward. _october ._ we remained in camp. as the grazing was poor in the timber, and our loose cattle much trouble to us, we determined to send a party with them to the settlement. the indians had informed us that there was a trail to the north, which ran over mount hood, and thence to oregon city. this party was to proceed up one of the ridges until they struck this trail, and then follow it to the settlement. two families decided upon going with this party, and as i expected to have no further use for my horse, i sent him with them. they were to procure provisions and assistance, and meet us on the way. we had forwarded, by a company of cattle-drivers from the dalles, which started for the settlement on the first of the { } month, a request that they would send us provisions and assistance; but as we knew nothing of their whereabouts, we had little hope of being benefited by them.[ ] the day was spent in making the necessary arrangements for the cattle-drivers, and for working the road. in the afternoon, barlow and his party returned. they had taken nearly the same route that we had; they had followed up the bluff of this branch of the de shutes, to within twelve or fifteen miles of mount hood, where they supposed they had seen willamette valley. they had then taken the indian trail spoken of, and followed it to one of the ridges leading down to the river de shutes; this they followed, and came out near our camp. we now jointly adopted measures for the prosecution of the work before us. _october ._ early in the morning, the party designated to drive our loose cattle made their arrangements, and left us. and as we supposed our stock of provisions was insufficient to supply us until these men returned, we dispatched a few men to the dalles for a beef and some wheat; after which, we divided our company so as that a portion were to remain and take charge of the camp. a sufficient number were to pack provisions, and the remainder were to be engaged in opening the road. all being ready, each one entered upon the duty assigned him with an alacrity and willingness that showed a full determination to prosecute it to completion, if possible. on the evening of the th, we had opened a road to the top of the mountain, which we were to descend to the branch of the de shutes.[ ] the side of the mountain was covered with a species of laurel bush, and so thick, that it was almost impossible to pass through it, and as it was very dry we set it on fire. we passed down and encamped on the creek, and during the night the fire had nearly cleared the road on the side of the mountain. on the morning of october th, a consultation was had, when it was determined that mr. barlow, mr. lock, and myself, should go in advance, and ascertain whether we could find a passage over the main dividing ridge. in the mean time, the remainder of the party were to open the road up the creek bottom as far as they could, or until our return. we took some provision in our pockets, an axe, and one rifle, and started. we followed up this branch about fifteen miles, when we reached a creek, coming in from the left. we followed up this for a short distance, and then struck across to { } the main fork; and in doing so, we came into a cedar swamp, so covered with heavy timber and brush that it was almost impossible to get through it. we were at least one hour in traveling half a mile. we struck the opening along the other fork, traveled up this about eight miles, and struck the indian trail spoken of before, near where it comes down the mountain. the last eight miles of our course had been nearly north--a high mountain putting down between the branch and main fork. where we struck the trail, it turned west into a wide, sandy and stony plain, of several miles in width, extending up to _mount hood_, about seven or eight miles distant, and in plain view. i had never before looked upon a sight so nobly grand. we had previously seen only the top of it, but now we had a view of the whole mountain. no pen can give an adequate description of this scene. the bottom which we were ascending, had a rise of about three feet to the rod. a perfect mass of rock and gravel had been washed down from the mountain. in one part of the bottom was standing a grove of dead trees, the top of which could be seen; from appearance, the surface had been filled up seventy-five or eighty feet about them. the water came tumbling down, through a little channel, in torrents. near the upper end of the bottom, the mountains upon either side narrowed in until they left a deep chasm or gulf, where it emerged from the rocky cliffs above. stretching away to the south, was a range of mountain, which from the bottom appeared to be connected with the mountain on our left. it appeared to be covered with timber far up; then a space of over two miles covered with grass; then a space of more than a mile destitute of vegetation; then commenced the snow, and continued rising until the eye was pained in looking to the top. to our right was a high range, which connected with mount hood, covered with timber. the timber near the snow was dead. we followed this trail for five or six miles, when it wound up a grassy ridge to the left--followed it up to where it connected with the main ridge; this we followed up for a mile, when the grass disappeared, and we came to a ridge entirely destitute of vegetation. it appeared to be sand and gravel, or rather, decomposed material from sandstone crumbled to pieces. before reaching this barren ridge, we met a party of those who had started with the loose cattle, hunting for some which had strayed off. they informed us that they had lost about { } one-third of their cattle, and were then encamped on the west side of mount hood. we determined to lodge with them, and took the trail over the mountain. in the mean time, the cattle-drovers had found a few head, and traveled with us to their camp. soon after ascending and winding round this barren ridge, we crossed a ravine, one or two rods in width, upon the snow, which terminated a short distance below the trail, and extended up to the top of mount hood. we then went around the mountain for about two miles, crossing several strips of snow, until we came to a deep kanyon or gulf, cut out by the wash from the mountain above us. a precipitate cliff of rocks, at the head, prevented a passage around it. the hills were of the same material as that we had been traveling over, and were very steep. i judged the ravine to be three thousand feet deep. the manner of descending is to turn directly to the right, go zigzag for about one hundred yards, then turn short round, and go zigzag until you come under the place where you started from; then to the right, and so on, until you reach the base. in the bottom is a rapid stream, filled with sand. after crossing, we ascended in the same manner, went round the point of a ridge, where we struck another ravine; the sides of this were covered with grass and whortleberry bushes. in this ravine we found the camp of our friends. we reached them about dark; the wind blew a gale, and it was quite cold. _october ._ after taking some refreshment, we ascended the mountain, intending to head the deep ravine, in order to ascertain whether there was any gap in the mountain south of us, which would admit of a pass. from this peak, we overlooked the whole of the mountains. we followed up the grassy ridge for one mile and a half, when it became barren. my two friends began to lag behind, and show signs of fatigue; they finally stopped, and contended that we could not get round the head of the ravine, and that it was useless to attempt an ascent. but i was of a different opinion, and wished to go on. they consented, and followed for half a mile, when they sat down, and requested me to go up to the ledge, and, if we could effect a passage up and get round it, to give them a signal. i did so, and found that by climbing up a cliff of snow and ice, for about forty feet, but not so steep but that by getting upon one cliff, and cutting holes to stand in and hold on by, it could be ascended. i gave the signal, and they came up. in the { } mean time, i had cut and carved my way up the cliff, and when up to the top was forced to admit that it was something of an undertaking; but as i had arrived safely at the top of the cliff, i doubted not but they could accomplish the same task, and as my moccasins were worn out, and the soles of my feet exposed to the snow, i was disposed to be traveling, and so left them to get up the best way they could. after proceeding about one mile upon the snow, continually winding up, i began to despair of seeing my companions. i came to where a few detached pieces of rock had fallen from the ledge above and rolled down upon the ice and snow, (for the whole mass is more like ice than snow;) i clambered upon one of these, and waited half an hour. i then rolled stones down the mountain for half an hour; but as i could see nothing of my two friends, i began to suspect that they had gone back, and crossed in the trail. i then went round to the southeast side, continually ascending, and taking an observation of the country south, and was fully of the opinion that we could find a passage through.[ ] the waters of this deep ravine, and of numerous ravines to the northwest, as well as the southwest, form the heads of big sandy and quicksand rivers, which empty into the columbia, about twenty-five or thirty miles below the cascade falls.[ ] i could see down this stream some twelve or fifteen miles, where the view was obstructed by a high range coming round from the northwest side, connecting by a low gap with some of the spurs from this peak. all these streams were running through such deep chasms, that it was impossible to pass them with teams. to the south, were two ranges of mountains, connecting by a low gap with this peak, and winding round until they terminated near big sandy. i observed that a stream, heading near the base of this peak and running southeast { } for several miles, there appeared to turn to the west. this i judged to be the head waters of clackamis, which empties into the willamette, near oregon city; but the view was hid by a high range of mountains putting down in that direction.[ ] a low gap seemed to connect this stream, or some other, heading in this high range, with the low bottoms immediately under the base of this peak. i was of the opinion that a pass might be found between this peak and the first range of mountains, by digging down some of the gravel hills; and if not, there would be a chance of passing between the first and second ranges, through this gap to the branch of clackamis; or, by taking some of the ranges of mountains and following them down, could reach the open ground near the willamette, as there appeared to be spurs extending in that direction. i could also see a low gap in the direction from where we crossed the small branch, coming up the creek on the th, towards several small prairies south of us. it appeared, that if we could get a road opened to that place, our cattle could range about these prairies until we could find a passage for the remainder of the way. the day was getting far advanced, and we had no provisions, save each of us a small biscuit; and knowing that we had at least twenty-five miles to travel, before reaching those working on the road, i hastened down the mountain. i had no difficulty in finding a passage down; but i saw some deep ravines and crevices in the ice which alarmed me, as i was compelled to travel over them. the snow and ice had melted underneath, and in many places had left but a thin shell upon the surface; some of them had fallen in and presented hideous looking caverns. i was soon out of danger, and upon the east side of the deep ravine i saw my two friends slowly winding their way up the mountain. they had gone to the foot of the ledge, and as they wore boots, and were much fatigued, they abandoned the trip, and returned down the mountain to the trail, where i joined them. we there rested awhile, and struck our course for one of the prairies which we had seen from the mountain. on our way we came to a beautiful spring of water, surrounded with fine timber; the ground was covered with whortle berry bushes, and many of them hanging full of fruit, we halted, ate our biscuit, gathered berries, and then proceeded down the mountain. after traveling about ten miles, we reached the prairie. it was covered with grass, and was very wet. a red sediment { } of about two inches in depth covered the surface of the ground in the grass, such as is found around mineral springs. a beautiful clear stream of water was running through the prairie, in a southeast direction. we had seen a prairie about two miles further south, much larger than this, which we supposed to be dry. we now took our course for camp, intending to strike through the gap to the mouth of the small branch; but we failed in finding the right _shute_, and came out into the bottom, three miles above where we had first struck the cattle or indian trail. we then took down the bottom, and arrived in camp about eleven o'clock at night; and although not often tired, i was willing to acknowledge that i was near being so. i certainly was hungry, but my condition was so much better than that of my two friends, that i could not murmur. our party had worked the road up to the small branch, where they were encamped. on the morning of the th of october we held a consultation, and determined upon the future movements of the company. the party designated to bring us provisions had performed that service; but the amount of our provisions was nearly exhausted, and many of the party had no means of procuring more. some of them began to despair of getting through this season. those left with the camp were unable to keep the cattle together, and a number of them had been lost. the indians had stolen several horses, and a variety of mishaps occurred, such as would necessarily follow from a company so long remaining in one position. they were now on a small creek, five miles from stony hill, which we called camp creek, and near the timber. it was impossible to keep more than one third of the men working at the road; the remainder were needed to attend the camp and pack provisions. it was determined to send a party and view out the road, through to the open country, near the mouth of clackamis, whilst the others were to open the road as far as the big prairie; a number sufficient to bring up the teams and loose cattle, (for a number of families with their cattle had joined since ours left, and portions of our company did not send their loose cattle,) to a grassy prairie in this bottom, and near the mouth of this creek, as the time required to pack provisions to those working on the road would be saved. all being arranged, the next thing was to designate the persons to go ahead of the party, and if found practicable to return with provisions and help; or at all events to ascertain whether the route were practicable. { } it was determined that i should undertake this trip. i asked only one man to accompany me. we took our blankets, a limited supply of provisions, and one light axe, and at eight o'clock in the morning set out. i was satisfied that the creek which we were then on, headed in the low gap, seen from mount hood; and the party were to open the road up this branch. but as i was to precede them, i passed up this creek for about eight or ten miles, when i discovered the low gap, went through it, and at noon arrived at the wet prairie, which we had visited the day before. the route was practicable, but would require great labor to remove the timber, and cut out the underbrush. we halted at the creek and took some refreshment; we then struck for the low gap between the first range of mountains running west, and the base of mount hood, and traveled through swamps, small prairies, brush, and heavy timber for about twelve miles, when we found the labor necessary to open a wagon road in this direction, to be greater than we could possibly bestow upon it before the rainy season. we determined to try some other route, retraced our steps six or seven miles, and then bore to the right, around the base of the mountain, when we struck into an old indian trail. this we followed for seven or eight miles, through the gap i had seen from mount hood. it is a rolling bottom of about four or five miles in width, and extending from the base of mount hood south for ten or twelve miles. the trail wound around the mountain, but as its course was about that we wished to travel, we followed it until it ran out at the top of the mountain. we then took the ridge west, and traveled until dark; but as the moon shone bright, and the timber was not very thick, we turned an angle down the mountain to the left, to procure water. we traveled about three miles, and struck upon a small running branch; this we followed, until owing to the darkness, we were compelled to encamp, much fatigued, and somewhat disheartened. _october ._ at daylight we were on the way. my moccasins, which the night before had received a pair of soles, in yesterday's tramp had given way, and in traveling after night my feet had been badly snagged, so that i was in poor plight for walking; but as there was no alternative, we started down the mountain, and after traveling a few miles i felt quite well and was able to take the lead. we traveled about three miles, when we struck a large creek which had a very rapid current, over a stony bottom. i had hoped to find a bottom of sufficient { } width to admit of a wagon road, but after following down this stream six miles, i was satisfied that it would not do to attempt it this season. the weather, which had been entirely clear for months, had through the night began to cloud up; and in the morning the birds, squirrels, and every thing around, seemed to indicate the approach of a storm. i began for the first time to falter, and was at a stand to know what course to pursue. i had understood that the rainy season commenced in october, and that the streams rose to an alarming height, and i was sensible that if we crossed the branch of the deshutes, which headed in mount hood, and the rainy season set in, we could not get back, and to get forward would be equally impossible; so that in either event starvation would be the result. and as i had been very active in inducing others to embark in the enterprise, my conscience would not allow me to go on and thus endanger so many families. but to go back, and state to them the difficulties to be encountered, and the necessity of taking some other course, seemed to be my duty. i therefore resolved to return, and recommend selecting some suitable place for a permanent camp, build a cabin, put in such effects as we could not pack out, and leave our wagons and effects in the charge of some persons until we could return the next season, unencumbered with our families and cattle, and finish the road;--or otherwise to return to the dalles with our teams, where we could leave our baggage in charge of the missionaries, and then descend the columbia. and when my mind was fully made up, we were not long in carrying it into execution. we accordingly ascended the mountain, as it was better traveling than in the bottom. the distance to the summit was about four miles, and the way was sometimes so steep as to render it necessary to pull up by the bushes. we then traveled east until we reached the eastern point of this mountain, and descended to the bottom, the base of which we had traversed the day before. we then struck for the trail, soon found it, and followed it until it led us to the southern end of the wet prairie. we then struck for the lower gap in the direction of the camp, crossed over and descended the branch to near its mouth, where we found four of our company clearing the road, the remainder having returned to camp creek for teams. but as we had traveled about fifty miles this day, i was unable to reach the camp. _october ._ this morning we all started for camp, carrying { } with us our tools and provisions. we reached camp about two p.m. many of our cattle could not be found, but before night nearly all were brought into camp. the whole matter was then laid before the company, when it was agreed that we should remove over to the bottom, near the small creek, and if the weather was unfavorable, leave our baggage and wagons, and pack out the families as soon as possible. but as some were out of provisions, it was important that a messenger should be sent on ahead for provisions, and horses to assist in packing out. mr. buffum, and lady, concluded to pack out what articles they could, and leave a man to take charge of the teams and cattle, until he returned with other horses. he kindly furnished me with one of his horses to ride to the settlement. he also supplied the wife of mr. thompson with a horse. mr. barlow and mr. rector made a proposition to continue working the road until the party could go to and return from the valley; they agreeing to insure the safety of the wagons, if compelled to remain through the winter, by being paid a certain per cent. upon the valuation. this proposition was thought reasonable by some, and it was partially agreed to. and as there were some who had no horses with which to pack out their families, they started on foot for the valley, designing to look out a road as they passed along. some men in the mean time were to remain with the camp, which as above stated was to be removed to the small branch on shutes' fork; and those who intended pushing out at once, could follow up it to the indian trail. this all being agreed upon, arrangements were made accordingly. _october ._ the morning was lowering, with every indication of rain. messrs. barlow and rector started on the trip.[ ] all hands were making arrangements for moving the camp. in the mean time mr. buffum and his lady, and mrs. thompson, were ready to start.[ ] i joined them, and we again set out for the settlement. we had traveled about two miles when it commenced raining, and continued raining slightly all day. we encamped on the bottom of shutes' fork, near the small branch. it rained nearly all night. on the morning of the th october after our horses had filled themselves, we packed up and started. it was still raining. we followed up this bottom to the trail, and then pursued the trail over mount hood. whilst going over this mountain the rain poured down in torrents, it was foggy, and very cold. we arrived at the deep ravine at about four p.m., { } and before we ascended the opposite bank it was dark; but we felt our way over the ridge, and round the point to the grassy run. here was grazing for our tired horses, and we dismounted. upon the side of the mountain, where were a few scattering trees, we found some limbs and sticks, with which we succeeded in getting a little fire. we then found a few sticks and constructed a tent, covering it with blankets, which protected our baggage and the two women. mr. buffum and myself stood shivering in the rain around the fire, and when daylight appeared, it gave us an opportunity to look at each others' lank visages. our horses were shivering with the cold, the rain had put out our fire, and it seemed as though every thing had combined to render us miserable. after driving our horses round awhile, they commenced eating; but we had very little to eat, and were not troubled much in cooking it. _october ._ as soon as our horses had satisfied themselves we packed up and ascended the mountain over the ridge, and for two miles winding around up and down over a rough surface covered with grass. the rain was falling in torrents, and it was so foggy that we could barely see the trail. we at length went down a ridge two miles, when we became bewildered in the thick bushes. the trail had entirely disappeared. we could go no farther. the two women sat upon their horses in the rain, whilst i went back to search for the right trail; buffum endeavoring to make his way down the mountain. i rambled about two miles up the mountain, where i found the right trail, and immediately returned to inform them of it. buffum had returned, and of course had not found the trail. we then ascended the mountain to the trail, when a breeze sprung up and cleared away the fog. we could then follow the trail. we soon saw a large band of cattle coming up the mountain, and in a short time met a party of men following them. they had started from the dalles about eight days before, and encamped that night four or five miles below, and as it was a barren spot, their cattle had strayed to the mountain to get grass. but what was very gratifying, they informed us that a party of men from oregon city, with provisions for our company had encamped with them, and were then at their camp. we hastened down the mountain, and in a few hours arrived at the camp. but imagine our feelings when we learned that those having provisions for us, had despaired of finding us, and { } having already been out longer than was expected, had returned to the settlement, carrying with them all the provisions, save what they had distributed to these men. we were wet, cold, and hungry, and would not be likely to overtake them. we prevailed upon one of the men whom we found at the camp, to mount one of our horses, and follow them. he was absent about ten minutes, when he returned and informed us that they were coming. they soon made their appearance. this revived us, and for awhile we forgot that we were wet and cold. they had gone about six miles back, when some good spirit induced them to return to camp, and make one more effort to find us. the camp was half a mile from the creek, and we had nothing but two small coffee-pots, and a few tin cups, to carry water in; but this was trifling, as the rain was still pouring down upon us. we speedily made a good fire, and set to work making a tent, which we soon accomplished, and the two women prepared us a good supper of bread and coffee. it was a rainy night, but we were as comfortable as the circumstances would admit. _october ._ after breakfast, the drovers left us; and as the party which had brought us provisions had been longer out than had been contemplated, mr. stewart and mr. gilmore wished to return. it was determined that mr. buffum, the two females, mr. stewart, and mr. n. gilmore, should go on to the settlement, and that mr. c. gilmore, and the indian who had been sent along to assist in driving the horses, and myself, should hasten on with the provisions to the camp. we were soon on the way, and climbing up the mountain. the horses were heavily loaded, and in many places the mountain was very slippery, and of course we had great difficulty in getting along. it was still raining heavily, and the fog so thick that a person could not see more than fifteen feet around. we traveled about two miles up the mountain, when we found that whilst it had been raining in the valley it had been snowing on the mountain. the trail was so covered with snow that it was difficult to find it, and, to increase our difficulty, the indian refused to go any farther. we showed him the whip, which increased his speed a little, but he soon forgot it, was very sulky, and would not assist in driving. we at length arrived at the deep ravine; here there was no snow, and we passed it without serious difficulty. two of our packs coming off, and rolling down the hill, was the only serious trouble that we had. when we ascended the hill to { } the eastern side of the gulf, we found the snow much deeper than upon the western side; besides, it had drifted, and rendered the passage over the strip of the old snow somewhat dangerous, as in many places the action of the water had melted the snow upon the under side, and left a thin shell over the surface, and in some places holes had melted through. we were in danger of falling into one of these pits. coming to one of these ravines where the snow had drifted very much, i dismounted in order to pick a trail through, but before this was completed, our horses started down the bank. i had discovered two of these pits, and ran to head the horses and turn them; but my riding horse started to run, and went directly between the two pits; his weight jarred the crust loose, and it fell in, presenting a chasm of some twenty-five or thirty feet in depth, but the horse, being upon the run, made his way across the pit. the other horses, hearing the noise and seeing the pits before them, turned higher up, where the snow and ice were thicker, and all reached the opposite side in safety. our indian friend now stopped, and endeavored to turn the horses back, but two to one was an uneven game, and it was played to his disadvantage. he wanted an additional blanket; this i promised him, and he consented to go on. we soon met two indians, on their way from the dalles to oregon city; our indian conversed with them awhile, and then informed us of his intention to return with them. whilst parleying with him, a party of men from our camp came up the mountain with their cattle; they had driven their teams to the small branch of the de shutes, twelve miles below the mountain, where they had left the families, and started out with their cattle before the stream should get too high to cross. whilst we were conversing with these men, our indian had succeeded in getting one loose horse, and the one which he was riding, so far from the band of pack-horses that, in the fog, we could not see him, and he returned to the settlement with the two indians we had just met. our horses were very troublesome to drive, as they had ate nothing for thirty-six hours; but we succeeded in getting them over the snow, and down to the grassy ridge, where we stopped for the night. my friend gilmore shouldered a bag of flour, carried it half a mile down the mountain to a running branch, opened the sack, poured in water, and mixed up bread. in the mean time, i had built a fire. we wrapped the dough around sticks and baked it before the fire, heated water in our { } tin cups and made a good dish of tea, and passed a very comfortable night. it had ceased raining before sunset, and the morning was clear and pleasant; we forgot the past, and looked forward to a bright future. _october ._ at o'clock we packed up, took the trail down the mountain to the gravelly bottom, and then down the creek to the wagon-camp, which we reached at p. m.; and if we had not before forgotten our troubles, we certainly should have done so upon arriving at camp. several families were entirely out of provisions, others were nearly so, and all were expecting to rely upon their poor famished cattle. true, this would have prevented starvation; but it would have been meagre diet, and there was no certainty of having cattle long, as there was but little grass. a happier set of beings i never saw, and the thanks bestowed upon us by these families would have compensated for no little toil and hardship. they were supplied with an amount of provisions sufficient to last them until they could reach the settlements. after waiting one day, mr. gilmore left the camp for the settlement, taking with him three families; others started about the same time, and in a few days all but three families had departed. these were mr. barlow's, mr. rector's, and mr. caplinger's,[ ] all of whom had gone on to the settlement for horses. ten men yet remained at camp, and, after selecting a suitable place for our wagon-yard, we erected a cabin for the use of those who were to remain through the winter, and to stow away such of our effects as we could not pack out. this being done, nothing remained but to await the return of those who had gone for pack horses. we improved the time in hunting and gathering berries, until the th, when four of us, loaded with heavy packs, started on foot for the valley of the willamette. but before entering upon this trip, i will state by what means the timely assistance afforded us in the way of provisions was effected. the first party starting for the settlement from the dalles, after we had determined to take the mountain route, carried the news to oregon city that we were attempting a passage across the cascade mountains, and that we should need provisions. the good people of that place immediately raised by donation about eleven hundred pounds of flour, over one hundred pounds of sugar, some tea, &c., hired horses, and the messrs. gilmore and mr. stewart volunteered to bring these articles to us.[ ] the only expense we were asked to defray was the hire of the horses. they { } belonged to an indian chief, and of course he had to be paid. the hire was about forty dollars, which brought the flour to about four dollars per hundred, as there were about one thousand pounds when they arrived. those who had the means paid at once, and those who were unable to pay gave their due bills. many of the families constructed packsaddles and put them on oxen, and, in one instance, a feather bed was rolled up and put upon an ox; but the animal did not seem to like his load, and ran into the woods, scattering the feathers in every direction: he was finally secured, but not until the bed was ruined. in most cases, the oxen performed well. in the afternoon of the th october, accompanied by messrs. creighton, farwell, and buckley, i again started to the valley. we had traveled but a short distance when we met barlow and rector, who had been to the settlement. they had some horses, and expected others in a short time. they had induced a few families whom they met near mount hood to return with them, and try their chance back to the dalles; but, after waiting one day, they concluded to try the mountain trip again. we traveled up the bottom to the trail, where we encamped; about this time, it commenced raining, which continued through the night. _october ._ this morning at eight o'clock, we were on the way. it was rainy, and disagreeable traveling. we followed the trail over the main part of the mountain, when we overtook several families, who had left us on the twenty-second. two of the families had encamped the night before in the bottom of the deep ravine; night overtook them, and they were compelled to camp, without fuel, or grass for cattle or horses. water they had in plenty, for it was pouring down upon them all the night. one of their horses broke loose, and getting to the provision sack, destroyed the whole contents. there were nine persons in the two families, four of them small children, and it was about eighty miles to the nearest settlement. the children, as well as the grown people, were nearly barefoot, and poorly clad. their names were powell and senters. another family by the name of hood, had succeeded in getting[ ] up the gravelly hill, and finding grass for their animals, and a little fuel, had shared their scanty supply with these two families, and when we overtook them they were all encamped near each other. we gave them about half of our provisions, and encamped near them. mr. hood kindly furnished us with a { } wagon cover, with which we constructed a tent, under which we rested for the night. _october ._ the two families who had lost their provisions succeeded in finding a heifer that belonged to one of the companies traveling in advance of us. in rambling upon the rocky cliffs above the trail for grass, it had fallen down the ledge, and was so crippled as not to be able to travel. the owners had left it, and as the animal was in good condition, it was slaughtered and the meat cured. after traveling four miles through the fresh snow, (which had fallen about four inches deep during the night,) we came to where the trail turned down to the sandy. we were glad to get out of the snow, as we wore moccasins, and the bottoms being worn off, our feet were exposed. two miles brought us to where we left the sandy, and near the place where we met the party with provisions; here we met mr. buffum, mr. lock, and a mr. smith,[ ] with fourteen pack-horses, going for effects to fort deposit--the name which we had given our wagon camp. the numerous herds of cattle which had passed along had so ate up the grass and bushes, that it was with great difficulty the horses could procure a sufficiency to sustain life. among the rest, was a horse for me; and as i had a few articles at the fort, mr. buffum was to take the horse along and pack them out. two of his horses were so starved as to be unable to climb the mountains, and we took them back with us. the weather by this time had cleared up; we separated, and each party took its way. a short distance below this, our trail united with one which starting from the dalles, runs north of mount hood, and until this season was the only trail traveled by the whites. we proceeded down the sandy, crossing it several times, through thickets of spruce and alder, until we arrived at the forks, which were about fifteen miles from the base of mount hood. the bottom of the sandy is similar to the branch of de shutes which we ascended; but in most cases the gravel and stones are covered with moss; portions of it are entirely destitute of vegetation. the mountains are very high, and are mostly covered with timber. at a few points are ledges of grayish rock, but the greater part of the mountain is composed of sand and gravel; it is much cut up by deep ravines, or kanyons. the trail is sometimes very difficult to follow, on account of the brush and logs; about our camp are a few bunches of { } brakes, which the horses eat greedily. the stream coming in from the southeast is the one which i followed down on the th, and from appearance i came within five miles of the forks. the bottom in this vicinity is more than a mile wide, and is covered with spruce, hemlock and alder, with a variety of small bushes. _october ._ we started early, and after having traveled several miles, found a patch of good grass, where we halted our horses for an hour. we then traveled on, crossing the sandy three times. this is a rapid stream; the water is cold, and the bottom very stony. we made about fifteen or sixteen miles only, as we could not get our horses along faster. we struck into a road recently opened for the passage of wagons. mr. taylor, from ohio, who had left our company with his family and cattle on the th, had arrived safely in the valley, and had procured a party of men and had sent them into the mountains to meet us at the crossing of sandy.[ ] they had come up this far, and commenced cutting the road toward the settlements. after traveling this road five or six miles we came upon their camp, where we again found something to eat; our provisions having been all consumed. the road here runs through a flat or bottom of several miles in width, and extending ten or twelve miles down the sandy; it bears towards the north, whilst the creek forms an elbow to the south. the soil is good, and is covered with a very heavy growth of pine and white cedar timber. i saw some trees of white cedar that were seven feet in diameter, and at least one hundred and fifty feet high. i measured several old trees that had fallen, which were one hundred and eighty feet in length, and about six feet in diameter at the root. we passed some small prairies and several beautiful streams, which meandered through the timber. the ground lies sloping to the south, as it is on the north side of the creek. in the evening it commenced raining a little. we remained at this camp all night. _october ._ this morning, after breakfast, we parted with our friends and pursued our way. we soon ascended a ridge which we followed for seven or eight miles, alternately prairie and fern openings. in these openings the timber is not large, but grows rather scrubby. there are numerous groves of beautiful pine timber, tall and straight. the soil is of a reddish cast, and very mellow, and i think would produce well. we came to the termination of this ridge and descended to the bottom, which has been covered with heavy timber, but which { } has been killed by fire. from this ridge we could see several others, of a similar appearance, descending gradually towards the west. we here crossed the creek or river, which was deep and rapid; and as our horses were barely able to carry themselves, we were compelled to wade the stream. buckly had been sick for several days, and not able to carry his pack; and if at other times i regretted the necessity of being compelled to carry his pack, i now found it of some advantage in crossing the stream, as it assisted in keeping me erect. buckly in attempting to wade across, had so far succeeded as to reach the middle of the stream, where he stopped, and was about giving way when he was relieved by farwell, a strong athletic yankee from the state of maine. in crossing a small bottom, one of the horses fell; we were unable to raise him to his feet, and were compelled to leave him. the other we succeeded in getting to the top of the hill, where we were also compelled to leave him. the former died, but the latter was taken in a few days after by those who were opening the road. after being relieved of the burthen of the two horses, we pushed forward on foot, as fast as buddy's strength and our heavy packs would allow; and as it had been raining all day, our packs were of double their former weight. at dark we met a party of men who had been through with a drove of cattle, and were returning with pack horses for the three families who were yet at fort deposit. we encamped with them. after crossing the sandy our course was southwest, over a rolling and prairie country. the prairie, as well as the timber land, was covered with fern. the soil was of a reddish cast, and very mellow, as are all the ridges leading from the mountain to the willamette or columbia river. we traveled this day sixteen or seventeen miles. _october ._ this morning was rainy as usual. four miles brought us to the valley of the clackamis, which was here five or six miles wide. the road was over a rolling country similar to that we passed over on yesterday. to the left of the trail we saw a house at the foot of the hill; we made for it, and found some of our friends who had started from camp with c. gilmore. the claim was held by a man named mcswain.[ ] we tarried here until the morning of the st, when we again started for oregon city. our trail ran for five or six miles along the foot of the hill, through prairie and timber land. the soil looks good, but is rather inclined to gravel; { } numerous streams flow down from the high ground, which rises gradually to a rolling fern plain, such as we traveled over on the th, and th. we then continued upon the high ground seven or eight miles, alternately through timber and fern prairies. we then turned down to clackamis bottom, which is here about one mile wide; this we followed down for three miles, when night overtook us, and we put up at mr. hatche's, having spent just one month in the cascade mountains.[ ] _november ._ this morning we left hatche's, and in two miles travel we reached the crossings of the clackamis river. at this point it is one hundred and fifty yards wide, the banks of gentle descent, the water wending its way for the noble columbia over a pebbly bottom. here is a village of about twenty families, inhabited by the clackamis indians, who are few in number, apparently harmless, and caring for nothing more than a few fish, a little game, or such subsistence as is barely sufficient to support life. there are but two or three houses in the village; they are made by setting up side and centre posts in the ground, the latter being the highest, to receive a long pole to uphold puncheons split out of cedar, which form the covering; the sides are enclosed with the same material, in an upright position. these puncheons are held to their places by leather thongs, fastened around them to the poles that lay upon the posts. after examining this little community, the remains of a once powerful and warlike people,[ ] we obtained the use of their canoes, crossed over the river, and after two miles further travel we reached a point that had long been a desired object; where we were to have rest and refreshment. we were now at the place destined at no distant period to be an important point in the commercial history of the union--oregon city.[ ] passing through the timber that lies to the east of the city, we beheld oregon and the falls of the willamette at the same moment. we were so filled with gratitude that we had reached the settlements of the white man, and with admiration at the appearance of the large sheet of water rolling over the falls, that we stopped, and in this moment of happiness recounted our toils, in thought, with more rapidity than tongue can express or pen write. here we hastily scanned over the distance traveled, from point to point, which we computed to be in miles as follows, viz: from independence to fort laramie, miles; from fort laramie { } to fort hall, miles; from fort hall to fort bois, miles; from fort bois to the dalles, miles; from the dalles to oregon city, (by the wagon route south of mount hood,) miles, making the total distance from independence to oregon city, miles. actual measurement will vary these distances, most probably lessen them; and it is very certain, that by bridging the streams, the travel will be much shortened, by giving to it a more direct course, and upon ground equally favorable for a good road. * * * * * oregon city. now at rest, having arrived at this place, before entering upon a general description of the country, i will give a short account of oregon city, as it appeared to me. this town is located upon the east side of the willamette river, and at the falls. it is about thirty miles above the junction of the willamette with the columbia, following the meanders of the river; but, directly from the columbia at vancouver, it is only about twenty miles. it was laid out by dr. m'laughlin, in , who holds a claim of six hundred and forty acres upon the east side of the river. from the river, upon this side, immediately at the falls, there rises a rocky bluff of about eighty feet in height, which bears off to the northeast. passing down the river, the land lies about ten feet lower than the surface of the water above the falls. this plateau extends for about one-fourth of a mile, when there is a further descent of about fifteen feet, from which a level and fertile bottom skirts the willamette for a mile and a half, to where the waters of the clackamis are united with those of the willamette. upon the plateau, immediately below, and a small portion of the higher ground above the falls, is the portion of his grant, that dr. m'laughlin has laid off in town lots.[ ] three years ago, this land was covered with a dense forest, which is now cleared off, to make room for the erection of houses to accommodate the inhabitants of the town. there were already erected, when i left there, about one hundred houses, most of them not only commodious, but neat. among the public buildings, the most conspicuous were the neat methodist church, which is located near the upper part of the town, and a splendid catholic chapel, which stands near the river and the bluff bank at the lower part of the town site.[ ] there are two grist mills; one owned by m'laughlin, having three sets of buhr runners, and will compare well with most of the mills in the states; the other is a smaller mill, { } owned by governor abernethy and mr. beers.[ ] at each of these grist-mills there are also saw-mills, which cut a great deal of plank for the use of emigrants. there are four stores, two taverns, one hatter, one tannery, three tailor shops, two cabinet-makers, two silversmiths, one cooper, two blacksmiths, one physician, three lawyers, one printing office, (at which the oregon spectator is printed, semi-monthly, at five dollars per annum,)[ ] one lath machine, and a good brick yard in active operation. there are also quite a number of carpenters, masons, &c., in constant employment, at good wages, in and about this village. the population is computed at about six hundred white inhabitants, exclusive of a few lodges of indians. the indians spend most of their nights in gambling. they have a game peculiar to the tribes of the lower columbia, and as i have not seen it described, i will mention it here. six men meet in their lodge, when they divide among themselves into partners of three on each side, then seat themselves, with a pole between the parties; the middle man on one of the sides has a small bone or stick which he holds in his hand; his partners upon the left and right keep up a regular knocking upon the pole with sticks, and singing of songs. the man with the bone keeps shifting it as quickly as possible from hand to hand, to deceive the middle man of the opposite side, as to which hand holds the bone; after he is satisfied, he stops and inquires of his opponent in which hand he holds it. if the opponent guesses rightly, he throws the bone, with a small pointed stick, to the winner, who goes through the same ceremony as the loser had done; but if the man guesses wrongly as to the hand that holds the bone, he hands over a little pointed stick. thus they keep it up until one or the other has won a certain number of pointed sticks, which they have agreed shall constitute the game, when the stakes are delivered over to the winning party. so desperately attached to this game are these savages, that they will gamble away every species of clothing or property they may possess; after this their wives, and they have been known to stake their own services, for a certain number of moons, and sometimes even to become the slaves for life of the more fortunate gamesters.[ ] the stores have but a very limited supply of such articles as emigrants need; but the present merchants, or others that will soon locate there, will find it to their interest to take out such commodities as will be required. mr. engle, who went out { } with the late emigrants, had erected a small foundry, with the intention of casting some old cannon that lay about the fort, and other broken utensils, into those most needed for culinary purposes; but he had not commenced business when i left.[ ] unimproved lots sell at from one to five hundred dollars each, (the price varying with their location,) in the currency of the country. the ground back of the town on the bluff, is rather rocky for half a mile, to the foot of the hill; upon ascending the hill, the country consists of fern openings and timber groves alternately, for a distance of about thirty-five miles, to the cascade mountains. upon this bluff, which is covered with timber, there is a small but beautiful lake, supplied with springs, which has an outlet by a rivulet that passes through the town into the river. the river below the falls, for several miles, is about two hundred and fifty yards wide, and opposite the town it is very deep. the bank on the east side, with the exception of a few hundred yards, is a cliff of about twenty feet in height, for the first half mile, of a firm basaltic rock; from thence down to the clackamis the bank is a sandy loam. upon the west side of the willamette, and opposite to oregon city, are laid out two villages; the upper one is called linn city, in honor of the late senator from missouri, whose memory, for his patriotic services in the cause of the oregon emigrant, is held in high esteem by every true friend of his country and of humanity. when dr. linn died, the friends of oregon lost a champion who would not have shamelessly deserted them in the hour of need.[ ] mr. moore, late of missouri, is the proprietor;[ ] his claim commences one-fourth of a mile below the falls, extends above the falls one and three-fourths of a mile, and back from the river one half of a mile. when i left, there were about fifteen buildings in this village, inhabited mostly by mechanics. the proprietor had refused to sell water power, which was doubtless one of the reasons why more emigrants did not settle in it. next, lower down, is the claim of mr. hugh burns, a native of ireland, but lately an emigrant from missouri; he is the proprietor of multinoma city, which is so called from the indian name for the willamette river, and a tribe of indians of this name that once inhabited that country.[ ] this tribe is now nearly extinct. at their burial places, near this, there are hundreds of skulls yet lying over the ground. when i left, { } there were but few buildings, and some few mechanics settled in it. there are two ferries established over the river, from the villages on the west side, to oregon city.[ ] upon the west side, the bank of the river is similar to that on the east, quite high, leaving but a small semicircular level for the first bottom; and upon a farther ascent of about twenty feet, there is a larger plain at the lower end of this bluff. the bottom corresponds well with that above the clackamis on the opposite side, and is covered with a dense growth of fir; the trees are tall and straight. * * * * * description of the country. the journey to oregon city accomplished, and an examination of the immediate vicinity completed, i set about an inquiry as to the features of the country--its fertility, its general susceptibility of improvement, and its capability for the support of a large and industrious population. in so doing, in addition to what i could see for myself, i applied for information to all whose opportunities had been favorable for obtaining a knowledge of any particular section. in this work i was an inquirer after facts, in order to decide the question as to the propriety of taking my family there for a permanent home; and when i noted these facts, no attention was paid to the classification and arrangement of the various subjects, as is generally done by those travelers and geographers whose business is book-making. necessarily, therefore, my journal presents facts, just in the order in which they came to me, and as i received them they are placed before the reader. the landscape immediately adjacent to the villages of linn city and multinoma present several abrupt precipices of various heights, upon each of which is a small level, of lesser and greater widths, clothed with fine grass and studded over with oak timber, until the highest ascent is reached, when it spreads out into an extensive fern opening. from these cliffs there gush out fine streams of pure spring water; and they will afford most beautiful country seats for the erection of residences convenient to the towns, when their improvement shall render such sites desirable. from these heights, (which are easily ascended,) there is a fine view of the falls of the river for several miles, and of mount hood. from the heights to quality plains, a distance of twenty-five miles, the country presents rolling plains, with small groves of oak and fir, and it is well watered by springs and small rivulets. { } from the description given of the towns, the reader may have already inferred, that the falls of the willamette combine all that is necessary to constitute great water privileges for propelling machinery; but before leaving this point, we will take a more particular view of them. these falls are occasioned by the descent of the whole volume of the river over a ledge of basaltic rock that crosses the entire channel. the greatest fall at any point is twenty-eight feet, but the whole descent here is about forty feet. the water is so divided in the channels at the falls, and the islands are so situated, that nearly all of the water may be rendered available, at a very small expense, when it shall be needed. nature rarely at any one point concentrates so many advantages for the erection and support of a great commercial and manufacturing city, as are to be found here. there is an abundance of water to propel the machinery, stone and timber convenient to erect the necessary buildings, an extensive country of the best farming lands in the world to support the towns by their trade, and a fine navigable river to bring the raw material to the manufactories, and when manufactured to carry the surplus to the pacific, whence it can easily be taken to the best markets the world affords. at this place, the business of the upper willamette will concentrate, for many years at least. tide water reaches to the mouth of the clackamis, which is within two miles of the falls. here there is a considerable ripple in the river, which can easily be removed by confining the clackamis to its original bed upon the eastern side of the island. as it is, there are four feet of water over the bar, and not so rapid as to prevent the ascent of steamboats to the falls. vessels of two hundred and fifty tons burthen have ascended within two miles of the rapids; but, from the crookedness of the stream and the difficulty in tacking so frequently, they generally receive and discharge their cargoes at portland, twelve miles below.[ ] traveling up the river, five miles from the falls, brings us to rock island. here is said to be a serious obstruction to the navigation of the river. the difficulty consists in there being several peaks of rocks so elevated, as to be near the surface of the water in a low stage; and as the channels between them are very narrow, and the water quite rapid, boats are liable to run on to them. but the rock can be removed at an inconsiderable expense. it is fifteen miles above the falls to the { } first gravel bar, at which place, in low water, there is but three feet in the channel.[ ] in traveling up the river about fifty miles, i found, in addition to the obstructions named, four other gravel bars, over some of which there were only thirty inches of water. in going the next seventy-five miles, i approached the river several times, and found it to have a deep channel and smooth current. persons who had navigated the river considerably further up, in their traffic with the indians, informed me that it continued equally favourable for navigation. from what i saw and learned of intelligent persons, i think the smaller class of steamboats could for most part of the year ascend two hundred miles above the falls. from the columbia to upper california, is a mountainous belt, known as the coast range.[ ] spurs of this range approach nearly to the mouth of the willamette. between these spurs and the river, there is but a small portion of the soil well adapted to agriculture. the higher range to the west of the falls affords a scope of fifty miles, that with the exception of a few openings, and quality plains, is tolerably broken, generally well timbered, finely watered, with many excellent situations for farms; but not so well calculated, as some other parts, for dense settlements. quality plains are distant twenty-five miles west from oregon city; they are about twenty-five miles in length, are alternately rolling prairie and timber, surrounded by heavy growths of firs, many of which rise to the height of two hundred and fifty feet. these plains are all claimed, settled, and mostly improved.[ ] they are well watered by many small streams that constitute the two forks of quality river, which unite near the southeast part of the plains, and runs an easterly course, through narrow bottoms, well supplied with timber for more than twenty miles, where it discharges its waters into the willamette, two miles above oregon city. the principal part of the water that flows in quality river descends from the coast range. this stream, like most others in that region, has several falls and rapids, that furnish very desirable sites for the propelling of machinery; but if ever profitable for navigation, will have to be improved by canals and lockage around its falls; which can easily be done, when the commerce of the country will justify the expense. from this stream, and between the coast range and willamette, and to the south, to the shahalam valley, which commences { } at the low pass of quality plains, is a tract of about twenty by thirty miles in extent, of rolling fertile lands, alternately fern openings and timber groves. from the coast range to the willamette there is a belt of five or six miles in width, which near the river is covered thinly with yellow pines; but nearer the mountain it is better timbered, and well watered from mountain rivulets; mostly a rich and loose soil, composed chiefly of yellow sand, loam and clay. but little of this tract is claimed by the emigrants, as they usually prefer the prairie country above. the shahalam is a small stream, which has its origin in the coast range, runs eastwardly and empties into the willamette, twenty miles above oregon city. this is skirted with good prairies of five or six miles in width, near the mountains; but towards its mouth the valley is covered with timber and fern. the best portion is claimed.[ ] eleven miles further up, the willamette receives the waters of the yam-hill. at the mouth it is about twenty-five yards in width, quite deep, and will bear upon its bosom crafts of large burthen for ten miles, to the falls. this stream has two principal branches; the one rising in the coast range, runs for twenty miles in a south-easterly direction, through a beautiful and fertile valley of twelve miles in width, handsomely covered with groves of white oak, and other timber; which is intersected with numerous spring branches, the banks of which are lined with timber, leaving in some places fine bottom prairies, covered with a rich sward of grass. between this fork and the shahalam is a range of hills averaging about two miles in width, extending from a part of the coast range, to within three miles of the willamette. they are of steep ascent, some of them rising to five or six hundred feet in height, well covered with grass, and from their sides issue numerous spring rivulets, which near their origin are lined with fir trees; thence passing through groves of white oak, alder and willow, to the bottom lands, which in crossing some of them disappear, and others after joining together, continue their courses until they unite with the shahalam and yam-hill. the grasses on these hills are a species of red clover, that grows in the summer season about one foot high, and a fine grass, which after the clover disappears, keep them clad in green during the winter. thus they furnish a perpetual supply of food for cattle the whole year. the soil upon these hills is a mixture of clay and loam, of a reddish color, and in the bottoms it is a rich { } mixture of loam and muck. however, there are some of the hills somewhat sandy, and occasionally interspersed with stony places. from the source of this branch of the yam-hill, (which in the country is called the north fork,) passes the trace, along which the people on clatsop plains drive their cattle a distance of about forty miles, when they reach the coast, fifteen miles south of cape lookout. the south fork of yam-hill has its source in the coast range; where it emerges from the mountains, for the first ten miles, its banks are well supplied with large fir trees, as are its several tributaries; its banks are generally steep, bearing the appearance of having washed out a channel from fifteen to twenty feet in depth. it runs an eastern course for about ten miles, then northeast for some miles, and finally takes a northern direction, until it connects with the north fork, near the falls, after having flowed a distance of about twenty-five miles. the valley watered by this stream is about fifteen miles wide, after the stream emerges from the heavy growth of firs already noticed; for there are firs, more or less, its whole length. from the water courses, upon an average of a little over one fourth of a mile, the valley is fine prairie land, soil light and rich, occasionally interspersed with fine groves, and well adapted to agricultural purposes. it is well covered with grass, as is every portion of the country that has oaken groves, and the lower bottoms yield an abundant supply of the _camas_, a tuberous rooted plant, shaped something like an onion, which it resembles in appearance. it is devoured greedily by hogs, and affords very good nutriment. the indians make much use of it as an article of food. between these streams and within six miles of their junction, commences the high lands of the coast range; the first plateau is about ten miles wide, and well covered with grass. the second plateau, for a few miles is fern openings, with an occasional grove of timber; after this westward to the coast the country is heavily timbered with firs, pine, and occasionally cedar, hemlock, balsam, and nearly all species of the evergreen timber. the streams last described furnish good sites for hydraulic purposes, near the mountains. a considerable portion of the valley of the yam-hill is not only claimed, but settled, and finely improved.[ ] leaving the yam-hill and ascending the willamette twenty-five miles, we reach the mouth of the rickerall, a stream { } which has its source in the same range as the yam-hill; for the first ten miles it runs rapidly over a pebbly bed, and from thence to the mouth has a deep channel, worn in a rich soil, with timbered banks. it flows in an easterly course from the mountains eighteen miles, and unites with the willamette. the valley through which this stream flows resembles that described as watered by the yam-hill; perhaps the soil is a little richer. it is nearly all claimed, and will soon be well settled. upon this stream there is erected a grist mill, and there was a saw mill, but the freshets washed it away last spring.[ ] five miles above yam-hill commence a range of hills that extend south to the rickerall, similar to those between shahalam and yam-hill. these hills vary from one to four miles in width, leaving a bottom about six miles wide to skirt the willamette, which is of good soil, well watered and timbered. upon the slopes of these hills are several thousands of acres of white oak, from six to twenty feet in height, some of them of large diameter and all with large and bushy tops; the ground being covered with grass, at a distance they look like old orchards. the timber of these trees is very solid, and promises great durability.[ ] the valley between the yam-hill and rickerall is called the applegate settlement; there are three brothers of the applegates, they have fine farms, with good herds of fat and thrifty cattle.[ ] the yam-hill plains is called the hemerey settlement, from a family of this name there settled.[ ] upon the rickerall are the gillams, fords and shaws, all doing well.[ ] the gays and matheneys are settled upon the bottom of the willamette, between yam-hill and rickerall.[ ] twelve miles above the rickerall, empties the lucky muke into the willamette; it heads in the same range as the yam-hill, and, like it, has two principal branches, of about the same length, depth and width, and passes through an excellent valley of land, with the same diversities and excellent qualities for farming which are attributed to the yam-hill valley--the timber being more of oak and less of fir. upon this stream several claims are entered, and there is a fine opening for others who may desire to settle there. mouse river joins the willamette about thirty-five miles above the lucky-muke.[ ] it has its origin in the coast range, has two principal branches, which unite near the mountains, passes ten miles over a pebbly bottom, and then becomes more sluggish to its mouth. this, like the other streams described, { } has timber upon its borders, but less than some; good country, fine prospects, and but few claims made. between the lucky-muke and mouse river there is a range of hills, as between other streams; but at one place a spur of the coast range approaches within ten miles of the willamette; from this issue many small streams which run down it, and through the fine plains to the lucky-muke upon the one side, and into mouse river on the other. this is a beautiful region; from the bottom can be seen, at different points, seven snow-covered peaks of the cascade range.[ ] the cascade is within view for a great distance, to the north and south; which, together with the beautiful scenery in the valley, renders it a picturesque place. thrifty groves of fir and oak are to be seen in every direction; the earth is carpeted with a covering of luxuriant grass, and fertilized by streams of clear running rivulets, some of which sink down and others pursue their course above ground to the river. between the forks of mouse river approaches a part of the cascade,[ ] but it leaves a valley up each branch about one mile in width, the soil of which is rich and good prairie for several miles above the junction. the mountain sides are covered very heavily with fir timber. thus these beautiful valleys offer great inducements to those who wish to have claims of good land, with fine grounds for pasturage and timber close at hand. there are no claims made as yet above the forks. these streams furnish good mill sites for each of the first six miles, and are well filled with trout. from the forks of this stream starts a trail, (or half-made road,) which leads to the falls of the alsa, a stream that heads twenty miles to the south of these forks; the trail leads a westerly course for fifteen miles to the falls; from thence to the coast it is twenty-one miles. from the falls the river runs in a westerly direction. an old indian told me that there was some excellent land in this valley, and that there would be but little difficulty in constructing a good road down it. salmon and other fish are in great abundance in this stream, up to the falls.[ ] six miles above mouse river is the mouth of long tom bath;[ ] this, like all other streams that enter the willamette upon the western side, heads in the coast range, and after breaking its way through the spurs to the plains below, passes through a valley of good soil. it has deep banks, is more sluggish in its movements than those that join it lower down, { } is filled with dirty water, has a miry bottom, shaded upon its margin with timber, and in size is something larger than the yam-hill. so far, i have described the valley from personal observation in that direction; but i was informed by those who had good opportunities for obtaining correct information, that it bore off more easterly, and that it was for eighty miles further up as well watered, timbered, and of as luxuriant soil, as that which i have described. it may be proper here to remark, that the further the valley is ascended the oak timber becomes more abundant, and the fir in a corresponding ratio decreases. having described the country for more than one hundred miles upon the western side of the willamette, we will return to the falls and mention a few facts respecting the eastern bank. upon this bank, for ten miles to the south of oregon city, continue fern openings, to a small stream called pole alley,[ ] which is skirted with beautiful prairie bottoms of from two to eight miles in length and from one to two miles wide; these, with alternate groves of fir, constitute the principal characteristics of pole alley valley. it is not more than half a mile from the mouth of pole alley, farther to the south, where pudding river embogues into the willamette; it is twenty-five yards in width at the mouth. the valley up this river to the cascade mountains, where it rises, is alternately fine prairie and timber lands, with occasional fern openings. some of the prairies are claimed by the recent emigrants. it is finely clothed in grass, and up the river some distance there are valuable mill sites; the water is clear, and well stocked with fish.[ ] from pudding river further south, there are fern openings, which are succeeded by grassy prairies, which give place to fine groves of fir, but sparsely intermingled with cedar. eight miles from pudding river is a village called butes. it was laid out by messrs. abernethy and beers. there were but a few cabins in it when i left. the proprietors had erected a warehouse to store the wheat they might purchase of the settlers back, who should find it convenient to sell their crops at this point. at this place are some conical hills, called butes, which rise to a considerable height; the sides and tops of them are clothed with tall fir trees, which can be seen from the valley above for sixty miles. immediately at this village is a fern opening, covered with an undergrowth of hazel, for three-fourths of a mile back, when it merges into an extensive and fertile prairie.[ ] { } south of butes three miles is the village of shampoic. it was laid out by a mountaineer, of the name of newell, formerly a clerk of the hudson's bay company.[ ] it contains a few old shabby buildings, and a warehouse owned by the company, where they receive the wheat of the settlers of the country from thence to the cascade mountains. this is an extensive plain, extending from pudding river up the willamette to the old methodist mission ground, which is distant thirty miles from the mouth of pudding river. the soil for this distance, and for two miles in width, is similar to that described immediately at butes. back of this for twenty-five or thirty miles is a very handsome country, mostly prairie, and fine timber, well watered, with occasionally a hill--the whole covered with a soil quite inviting to the agriculturist, with an abundance of pasturage for cattle. this is called the french settlement, and is one of the oldest in the valley. the catholics have here a mission, schools, a grist and saw mill, and several mechanics; they have also several teachers among the indians, and it is said that they have done much for the improvement of these aborigines. the inhabitants are mostly of what are called french canadians, and were formerly engaged in the service of the hudson bay company, but have now quit it, made claims, and gone to farming. they have very pretty orchards of apple trees, and some peach trees. their wives are natives of the country. many of them are raising families that, when educated, will be sprightly, as they are naturally active and hardy, and appear very friendly and hospitable. but few of them speak the english language fluently; they mostly talk french and chinook jargon.[ ] they cultivate but little land, but that little is well done, and the rich soil well repays them for the labor expended upon it. i could not satisfactorily ascertain the population of the settlement, which i much regretted. the old methodist mission is nearly opposite to what is now called matheny's ferry. it was reported to me to have been one of the first missions occupied in the valley, but has been abandoned on account of the overflowing of the river. it consists of only several dilapidated buildings.[ ] the soil is gravelly, inclined to barren, with a grove of pines near by. this place for a number of years was under the superintendance of the rev. jason lee. it is here that the remains of his wife are interred; a tombstone marks her resting place, which informs the passer by that she was the first white woman { } that was buried in oregon territory,--together with the place of her nativity, marriage, &c.[ ] the unfortunate location of the mission, and the circumstances under which mrs. lee died, no doubt have had great influence in creating that unfavorable impression of the country in the mind of mr. lee, which he has expressed in some of his letters. the country surrounding the mission is covered mostly with scrubby oak and pine trees. from the mission the road proceeds up the valley, alternately through groves of oak and pine, fern plains, and grassy prairies, in which are several farms, with convenient buildings. after pursuing this route about ten miles, we come to an improvement of several hundred acres, surrounded with small groves of oak. here the soil is quite gravelly, and not very rich. nearly opposite the mouth of the rickerall is the methodist institute, which was located at this place when it was ascertained that the willamette would overflow its bank at the old mission. my opinion is, that the location is a good one, being in a high and healthy neighborhood, and nearly central of what will be the principal population of the valley for long years to come. the course of instruction there given is quite respectable, and would compare well with many of those located in the old and populous settlements of the states. this school is unconnected with any mission. when the missionary board concluded to abandon that field of labor, the institute was bought by the methodists of oregon; hence it continued under its old name. the price of tuition is low, and the means of receiving an education at this place is within the power of those who have but a small amount to expend in its attainment.[ ] for the first five miles from the river towards the cascade range, the soil is gravelly; it is then a sandy loam to the foot of the mountain, and is generally an open plain. the valley upon the east side of the river at this place, is about twenty-five miles in width. it is proper, however, to remark, that there are occasional groves of timber interspersing the prairie, and in some places they reach within a short distance of the river. in this last described tract, there are several varieties of soil, with prairie, timber, upland, bottom, and hill side; the whole is well watered. at the institute there reside about fifteen families, and near by several claims are taken, and improvements commenced. the methodist missionaries { } have erected a saw and grist mill; these mills were sold, as was all the property of the missions in the valley, by mr. gerry, who was sent out to close the missionary matters in that region; they are now owned by resident citizens, and in successful operation. at this place a town is laid out.[ ] six miles above the institute commences a range of oak hills, which continue about twelve miles in a southeastern direction along the river, where they connect by a low pass with the cascade range. from this place, at the lower bench of the cascade, commences another range of hills, running south-westwardly, which continue about twenty miles in length, to the mouth of the santaam river, which joins the willamette twenty miles by land above the institute. this is a bold and rapid stream, of about one hundred and fifty yards in width; for a considerable portion of its length, it has a pebbly bottom, and banks covered with fir and white cedar trees of the best quality.[ ] the santa anna has four principal branches, with several small tributaries, all lined with timber, leaving a strip of beautiful prairie land between each, of from one-half to four miles in width. the two northern branches rise in mount jefferson, the first running nearly west from its origin to where it leaves the mountain, when it inclines to the south for a few miles, where it receives another branch; from this junction about eight miles, it is joined by a stream that rises in the cascade range, south of mount jefferson. ten miles below this point, the other principal branch, which rises still further to the south, unites with the others, when the river inclines to the west, until it joins the willamette. from its origin in mount jefferson to its termination, is about forty miles; from the oak hills above named is twenty-five miles. a considerable portion of the soil in this valley is quite gravelly, but a great portion is rich, and the prairies are well clothed with luxuriant grass. among the plants, herbs, &c., common to this part of the country, is wild flax. a few claims have been made along the northeast side of the oak hills, and improvements commenced. the soil yields a good crop of the agricultural products suited to the climate. above the santa anna, upon the eastern side of the willamette, the valley is about twenty miles in average width for ninety miles, to the three forks. in this distance there are many small mountain streams, crossing the valley to the river, all of which are lined with timber, and several of them affording { } valuable water privileges for such machinery as may be erected, when yankee enterprise shall have settled and improved this desirable portion of our great republic. after leaving the santaam, a prairie commences, of from four to twelve miles in width, which continues up the valley for a day's travel, which i suppose to be about forty miles. the mountains upon the east side of the willamette are covered with timber of quite large growth. in this last prairie has been found some stone coal, near the base of the mountain spurs; but as to quantity or quality i am uninformed. the specimen tried by a blacksmith was by him pronounced to be good. the willamette valley, including the first plateaus of the cascade and coast ranges of mountains, may be said to average a width of about sixty, and a length of about two hundred miles. it is beautifully diversified with timber and prairie. unlike our great prairies east of the rocky mountains, those upon the waters of the pacific are quite small; instead of dull and sluggish streams, to engender miasma to disgust and disease man, those of this valley generally run quite rapidly, freeing the country of such vegetable matter as may fall into them, and are capable of being made subservient to the will and comfort of the human family in propelling machinery. their banks are generally lined with fine groves of timber for purposes of utility, and adding much to please the eye. the willamette itself, throughout its length, has generally a growth of fir and white cedar, averaging from one-fourth to three miles in width, which are valuable both for agricultural and commercial purposes. its banks are generally about twenty feet above the middling stages, yet there are some low ravines, (in the country called _slues_,) which are filled with water during freshets, and at these points the bottoms are overflowed; but not more so than those upon the rivers east of the mississippi. it has been already observed that the soil in these bottoms and in the prairies is very rich; it is a black alluvial deposit of muck and loam; in the timbered portions it is more inclined to be sandy, and the higher ground is of a reddish colored clay and loam. the whole seems to be very productive, especially of wheat, for which it can be safely said, that it is not excelled by any portion of the continent. the yield of this article has frequently been fifty bushels per acre, and in one case dr. white harvested from ten acres an average of over fifty-four { } bushels to the acre; but the most common crop is from thirty to forty bushels per acre, of fall sowing; and of from twenty to twenty-five bushels, from spring sowing. there is one peculiarity about the wheat, and whether it arises from the climate or variety, i am unable to determine. the straw, instead of being hollow as in the atlantic states, is filled with a medullary substance, (commonly called pith,) which gives it firmness and strength; hence it is rarely that the wheat from wind or rain lodges or falls before harvesting. the straw is about the height of that grown in the states, always bright, the heads upon it are much longer, and filled with large grains, more rounded in their form, than those harvested in the eastern part of the union. i have seen around fields, where a single grain has grown to maturity, forty-two stalks, each of which appeared to have borne a well filled head; for the grains were either removed by birds, or some other cause. as it was november when i arrived in the country, i saw wheat only in its grassy state, except what had escaped the late harvest. the farmers have a white bald wheat, the white bearded, and the red bearded, either of which can be sown in fall or spring, as best suits their convenience, or their necessities demand. that sown in september, october or november, yields the most abundantly; but if sown any time before the middle of may, it will ripen. the time of harvesting is proportioned to the seed time. that which is early sown is ready for the cradle or sickle by the last of june, or the first of july, and the latest about the first of september. in the oregon valley, there are but few rains in the summer months, and as the wheat stands up very well, farmers are generally but little hurried with their harvesting. the emigrants usually arrive in the latter part of the summer or fall, and necessarily first provide a shelter for their families, and then turn their attention to putting in a field of wheat. in doing this, they frequently turn under the sod with the plough one day, the next harrow the ground once, then sow their seed, and after going over it again with a harrow, await the harvest, and not unfrequently gather forty bushels from the acre thus sown. in several instances the second crop has been garnered from the one sowing. when the wheat has stood for cutting until very ripe, and shattered considerably in the gathering, the seed thus scattered over the field has been harrowed under, and yielded twenty bushels to the acre, of { } good merchantable grain. i was told of an instance where a third crop was aimed at in this way; it yielded but about twelve bushels to an acre, and was of a poor quality. the rust and smut which so often blast the hopes of the farmer, in the old states, are unknown in oregon, and so far there is but very little cheat. harvesting is generally done with cradles, and the grain threshed out with horses, there being no machines for this latter purpose in the territory. the grain of the wheat, though much larger than in the states, has a very thin husk or bran, and in its manufacture in that country during the winter months requires a coarser bolting cloth than in the atlantic states, owing to the dampness of the atmosphere at this season. the farmers already raise a surplus of this commodity, over and above the consumption of the country: but owing to the scarcity of mills to manufacture it, they cannot at all times have it in readiness to supply vessels when they visit the settlements. at the time i left, wheat was worth eighty cents per bushel, and flour three dollars and fifty cents per hundred pounds. the mills above the falls grind for a toll of one-eighth, but at the falls they will exchange for wheat, giving thirty-six pounds of fine flour for an american bushel, and forty pounds for a royal bushel. the weight of a bushel of wheat, (according to quality,) is from sixty to seventy pounds. oats yield an abundant crop, but this grain is seldom sown, as the stock is generally suffered to gather its support by grazing over the plains. peas do well, and are much used in feeding hogs, at the close of their fattening, when taken off of their range of camas and other roots; and it is remarked that this vegetable there is free from the bug or wevil that infests it in the western states. barley is very prolific, and of a large and sound growth; but there is as yet little raised, as the demand for it is quite limited. i saw no rye in the country. buckwheat grew very well, though not much raised. for potatoes oregon is as unequalled, by the states, as it is for wheat. i doubt whether there is any portion of the globe superior to it for the cultivation of this almost indispensable vegetable. i heard of no sweet potatoes, and think there are none in the territory. indian corn is raised to some extent upon the lower bottoms { } in the valleys, but it is not considered a good corn country. it had yielded forty bushels to the acre; they mostly plant the small eight-rowed yankee corn. the summers are too cool for corn. tobacco has been tried; and although it may be raised to some extent, it is lighter than in kentucky, and more southern latitudes. the climate and soil are admirably adapted to the culture of flax and hemp, and to all other vegetables, which grow with ordinary care, in any of the northern, eastern and middle states. during my travels through the valley, i spent some time with mr. joel walker, a gentleman who had resided several years in california, had made several trips from oregon to the bay of san francisco, and had spent some time in trapping and trading between the willamette valley and the d degree of north latitude.[ ] from this gentleman, as well as from several others, i learned that the trail near two hundred miles south of oregon city arrives at the california mountains, which is a ridge running from the cascade to the coast range of mountains. with the exception of a few peaks, this ridge is susceptible of easy cultivation, being partly prairie and partly covered with timber. mr. walker doubts not that a good wagon road can be made over this ridge; to cross which requires but a few hours, and brings us into the beautiful country bounded on the east and west by the cascade and coast ranges, the california mountains on the north, and the rogue's river mountains on the south. this district of country, which is only about forty miles wide from east to west, is drained by the umpquah river, and its tributaries, which as in the willamette valley, are skirted with timber; but back from the streams is a prairie country, beautifully alternated with groves of timber. at the mouth of the umpquah, which empties into the pacific about thirty miles from where it leaves this beautiful district of country, the hudson's bay company have a trading post.[ ] if we except this, there is no settlement nor claim made on this river or its tributaries. passing rogue's river mountains, the trail enters the valley of the river of that name. this valley is quite similar to that of the umpquah, but perhaps not quite so large.[ ] this valley is bounded on the south by the klamet mountain, which is a spur of the cascade and coast mountains. it is high and somewhat difficult to pass over; but it is believed a route may be found that will admit of an easy passage over. it is heavily timbered; and as in { } the coast range, the timber in many places has died, and a thick growth of underbrush sprung up. south of the klamet mountains spreads out the beautiful valley watered by the klamet river. this valley, although not so well known as that of the willamette, is supposed to be more extensive, and equally susceptible of a high state of cultivation. it is esteemed one of the best portions of oregon.[ ] the land is mostly prairie, but is well diversified with timber, and bountifully supplied with spring branches. the indians are more numerous here than in the valley further north, and as in the umpquah and rogue's river valleys, more hostile. there has been very little trading with them; but they not unfrequently attack persons driving cattle through from california to the settlements in oregon; and although none of the drivers have been killed for several years, they have lost numbers of their cattle. before these valleys can be safely settled, posts must be established to protect the inhabitants from the depredations of these merciless savages.[ ] a settlement of about a dozen families has been made upon clatsop plains. this is a strip of open land, about a mile in width, extending from the south end of point adams, or clatsop point, at the mouth of the columbia river, about twenty miles along the margin of the ocean, in the direction of cape lookout.[ ] it appears to have been formed by the washing of the waters. ridges resembling the waves of the ocean extend from north to south throughout the entire length of the plains. these ridges are from twelve to twenty-five feet high, and in some places not more than fifty feet, but at other points as much as three hundred yards asunder. that along the coast is the highest and least fertile, as it seems to be of more recent formation. the soil is composed of vegetable matter and sand, and produces grass more abundantly than the valleys above; the spray and dampness of the ocean keeping the grass green all the year. the land is not so good for fall wheat as in the upper country, but the settlers raise twenty-five bushels of spring wheat to the acre. i think it better for root crops than the valleys above. in the rear of the plains, or about a mile from the shore, is a body of land heavily timbered with hemlock and spruce, which is tall and straight, and splits freely. near the timber a marsh of some two hundred yards in width extends nearly the entire length of the plains. this marsh is covered with the low kind of cranberries. a stream some ten or twelve yards in width[ ] enters the plains { } at the south end, runs ten or twelve miles north, when it turns to the west, and after passing through two of the ridges, takes a southerly direction and enters the bay that sets up between the plains and cape lookout, not more than ten rods from its entrance into the plains. here a dam is built across the stream, and the claimant is erecting a flouring mill. on these plains the claims are taken half a mile in width on the coast, and extending back two miles; each claimant therefore having a fair proportion of prairie and timber land, besides a glorious cranberry patch. some fifteen miles southeast of cape lookout, stands a peak of the coast range, called saddle mountain; and the cape is a spur or ridge extending from this mountain some two or three miles out into the ocean.[ ] around the head of the bay, immediately north of cape lookout, is a body of several thousand acres of timber land. the soil is good, but most of it so heavily timbered that it would require much labour to prepare it for farming. but as the streams from the mountain afford an abundance of water power, it would be an easy matter to manufacture the timber into lumber, for which there is a good market for shipping, and thus make the clearing of the land for cultivation a profitable business. along the coast from cape lookout to the d parallel there is much land that can be cultivated; and even the mountains, when cleared of the heavy bodies of timber with which they are clothed, will be good farming land. there is so much pitch in the timber that it burns very freely; sometimes a green standing tree set on fire will all be consumed; so that it is altogether a mistaken idea that the timber lands of the country can never be cultivated. i am fully of the opinion that two-thirds of the country between the willamette valley and the coast, and extending from the columbia river to the forty-second parallel, which includes the coast range of mountains, can be successfully cultivated. this region abounds in valuable cedar, hemlock and fir timber, is well watered, possesses a fertile soil, and being on the coast, it will always have the advantage of a good market; for the statements that soundings cannot be had along the coast, between puget sound and the bay of san francisco, are altogether erroneous. no place along the range would be more than thirty miles from market; and the difficulty of constructing roads over and through this range would be trifling, compared with that of constructing similar works over the alleghanies. { } the country about cape lookout is inhabited by a tribe of indians called the kilamooks. they are a lazy and filthy set of beings, who live chiefly on fish and berries, of which there is here a great abundance. they have a tradition among them that a long time ago the great spirit became angry with them, set the mountain on fire, destroyed their towns, turned their _tiye_ (chief) and _tilicums_ (people) into stone, and cast them in the ocean outside of cape lookout; that the great spirit becoming appeased, removed the fire to saddle mountain, and subsequently to the _sawhle illahe_ (high mountain,) or mount regnier, as it is called by the whites, on the north side of the columbia river.[ ] in the ocean about a mile west of cape lookout, is to be seen at high water a solitary rock, which they call kilamook's head, after the chief of the tribe. around this rock for half a mile in every direction may be seen at low water divers other rocks, which are called the _tilicums_, (people) of the tribe. at low water is to be seen a cavity passing quite through kilamook's head, giving the rock the appearance of a solid stone arch.[ ] in support of this tradition, the appearance of the promontory of cape lookout indicates that it may be the remains of an extinct volcano; and on saddle mountain there is an ancient crater, several hundred feet deep; while mount regnier is still a volcano. those who have visited the rocky cliffs of cape lookout, report that there is some singular carving upon the ledges, resembling more the hieroglyphics of the chinese, than any thing they have seen elsewhere. these indians have another tradition, that five white men, or, as they call them, pale faces, came ashore on this point of rock, and buried something in the cliffs, which have since fallen down and buried the article deep in the rocks; that these pale faces took off the indian women, and raised a nation of people, who still inhabit the region to the south. and i have met with travelers who say they have seen a race of people in that region, whose appearance would seem to indicate that they may have some european blood in their veins. a reasonable conjecture is, that a vessel may have been cast away upon the coast, and that these five men escaped to cape lookout. another circumstance renders it probable that such might have been the case. frequently, after a long and heavy south westerly storm, large cakes of beeswax, from two to four inches thick and from twelve to eighteen inches in diameter, { } are found along the beach, near the south end of clatsop plains. the cakes when found are covered with a kind of sea-moss, and small shells adhere to them, indicating that they have been a long time under water.[ ] in or about saddle mountain rises a stream called skipenoin's river, which, though extremely crooked, runs nearly north, and empties into the western side of young's bay, which, it will be remembered, is a large body of water extending south from the columbia river between point adams and astoria. between this river and clatsop plains is a strip of thick spruce and hemlock, with several low marshes. the landing for clatsop plains is about two miles up the river; which it is rather difficult to follow, as there are many _slues_ putting in from either side, of equal width with the main stream. from the bay a low marshy bottom extends up to the landing, covered with rushes and sea-grass. this bottom is overflowed opposite the landing at high water. between the landing and clatsop plains is a lake one or two miles in length, which has its outlet into the bay. its banks are high, and covered with spruce. near this is a stream, from the mouth of which it is about two or three miles along the bay to the creek upon which lewis and clark wintered; and thence about three and a half miles to the head of the bay where young's river enters.[ ] young's river is a stream about one hundred and fifty yards in width, and is navigable for steamboats and small sloops to the forks, six or seven miles up. about seven miles further up are the "falls," where the water pitches over a ledge of rocks, making a fall of about sixty feet. around the falls the mountains are covered with heavy timber. near the forks the river receives from the east a small stream, upon which a machine for making shingles has been erected; and as the timber in the vicinity is good for shingles, which can be readily sold for the sandwich islands market, the owners expect to do a profitable business. young's river rises in or near saddle mountain.[ ] from the mouth of this river it is about eight or ten miles, around the point which forms on the east young's bay, to astoria, or fort george, as it is called by the hudson's bay company. this stands on the south side of the columbia river, about sixteen miles from its mouth.[ ] the columbia river and its location have been so often described, that it is hardly necessary for me to go into details. but as this work is designed to be afforded so low as to place { } it within the reach of every one, and may fall into the hands of many whose means will not enable them to procure expensive works on oregon, it may not be amiss to say something about that noble stream, which discharges its waters into the ocean between cape disappointment on the north, and point adams or clatsop point on the south, and in latitude about ° ['] north. at its mouth the columbia is narrowed to about six miles in width by cape disappointment extending in a south west direction far out into the stream, the cape being washed on the west side by the ocean. cape disappointment and chinook point, a few miles above it, form baker's bay, which affords good anchorage for vessels as soon as they round the point.[ ] this cape presents a rocky shore, is quite high, and covered with timber. an american had taken it as his land claim, according to the laws of the territory; but during the last winter, he sold his right to mr. ogden, then one of the principal factors, but now governor of the hudson's bay company in oregon, for one thousand dollars. a fortification on this cape would command the entrance of the river by the northern channel, which is immediately around the point, and as it is said, not more than half a mile in width.[ ] point adams, the southern cape of the columbia, is a little above cape disappointment. it is low and sandy, and continues a sand ridge four miles to clatsop plains. this point, and the high ground at astoria, as before stated, form young's bay, near which the ridge is covered with timber. near point adams is the southern channel or entrance into the columbia, which is thought to be preferable to the northern channel; and i think either of them much better than heretofore represented. in each there is a sufficiency of water to float any sized vessel. with the advantages of light houses, buoys, and skillful pilots, which the increasing commerce of the country must soon secure, the harbor at the mouth of the columbia would compare well with those on the atlantic coast; and i may say that it would be superior to many of them. as we ascend, astoria occupies probably the first suitable site for a town. it stands upon a gradual slope, which extends from the bank of the river up to the mountain. the timber was once taken off of some forty or fifty acres here, which, except about twenty acres, has since been suffered to grow up again, and it is now a thicket of spruce and briars. five or six old dilapidated buildings, which are occupied by the hudson's bay company, who have a small stock of goods for trading { } with the natives, and a few old looking lodges upon the bank of the river, filled with greasy, filthy indians, constitute astoria.[ ] the person in charge of this establishment, whose name is birney, seems to be a distant, haughty, sulky fellow, whose demeanor and looks belie the character generally given to a mountaineer or backwoodsman.[ ] as evidence of his real character, i will state one circumstance as it was related to me by persons residing in the vicinity of the place. during the summer or fall, while the british war vessel modesté was lying at astoria, one of the sailors fell overboard and was drowned. search was made, but his body could not be found. several weeks afterwards the body of a man was found upon the shore, a short distance above astoria. information was immediately communicated to birney, who promised to give the body a decent burial. about two weeks after this, some indians travelling along the shore, attracted to the place by a disagreeable scent and the number of buzzards collected together, discovered the body of a man much mangled, and in a state of putrefaction. they informed two white men, trask, and duncan,[ ] who immediately made enquiry as to whether the body found on the beach previously had been buried, and received for answer from birney, _that it was no countryman of his, but it was likely one of the late emigrants from the states that had been drowned at the cascade falls_. trask and duncan proceeded to bury the body, and found it to be in the garb of a british sailor or marine. this, to say the least, was carrying national prejudice a little too far. near astoria, and along the river, several claims have been taken, and commencements made at improving. anchorage may be had near the shore. three miles above astoria is tongue point,[ ] a narrow rocky ridge some three hundred feet high, putting out about a mile into the river; but at the neck it is low and not more than two hundred yards across. the two channels of the river unite below this point. opposite is gray's bay, a large, beautiful sheet of water, of sufficient depth to float ships. above and on the south side of the river is swan bay, a large sheet of water, though shallow, presenting numerous bars at low tides. a deep channel has been cut through this bay, which affords an entrance into a stream that comes in from the south, about two hundred yards wide, and from appearance is navigable some distance up.[ ] in this vicinity the whole country is covered with heavy timber. in { } the indentation in the mountain range south of the river, there seems to be large scopes of good rich land, which would produce well if cleared of timber. from tongue point across gray's bay to catalamet point is about sixteen miles. small craft are frequently compelled to run the southern channel, inside of a cluster of islands called catalamet islands, which passes "old catalamet town," as it is called, a point where once stood an indian village. four or five claims have been taken here, but none of them have been improved. a short distance from the river are several beautiful prairies, surrounded with heavy timber. a small stream enters here, which affords water power a short distance up.[ ] a few miles above old catalamet town, near the top of the bluff, about four hundred yards from the columbia, stands wilson & hunt's saw mill, which is driven by a small stream coming down from the mountain; after leaving the wheel the stream falls about sixty feet, striking tide water below. a sluice or platform is so constructed as to convey the lumber from the mill to the level below, where it is loaded into boats and run out to the river, where it can be loaded into vessels. upon our arrival at this place, the bark toulon was lying at anchor, about fifty yards from the shore, taking in a cargo of lumber for the sandwich islands, to which she expected to sail in a few days. this was early in january, but from some cause she did not leave the mouth of the river until the last of february.[ ] in the vicinity of the mill there is some better timber than i have seen in any other part of the country. the largest trees are about seven feet in diameter, and nearly three hundred feet high; the usual size, however, is from eighteen inches to three feet diameter, and about two hundred feet high. the country slopes up from the mill gradually, for several miles, and is susceptible of easy cultivation; the soil is somewhat sandy, and has the appearance of being good. in leaving this place, we struck directly across the river, which is here over two miles wide. upon the north side, almost opposite to the mill, is a claim held by birney, of astoria, who has made an effort at improvement by cutting timber and raising the logs of a cabin. at this place a rocky bluff commences and continues up the river for ten miles, over which a great many beautiful waterfalls leap into the columbia. there is one sheet of water ten or twelve feet wide, which plunges over a precipitous cliff two hundred feet into the river, { } striking the water about thirty feet from the base of the rock, where there is sufficient depth to float vessels of large size. at the distance of eight or ten miles above the mill, on the south side of the river, there is an indentation in the mountain to the south, and a bend in the river to the north, which forms a body of bottom land several miles in width, and some ten or twelve miles long, the greater part of which, except a strip varying from a quarter to half a mile in width, next to the river, is flooded during high tides. this strip is covered with white oak and cottonwood timber. the remainder of the bottom is prairie, with occasional dry ridges running through it, and the whole of it covered with grass. by throwing up levees, as is done upon the atlantic coast, most of these fine lands might be cultivated. at the extreme southern point of the elbow, there comes in a stream, the size of which was not ascertained, but from appearances it is of sufficient size to propel a considerable amount of machinery. there are several islands in the river opposite the lower point of this bottom, and at the northern angle the columbia is not more than three-fourths of a mile wide. this is called oak point, and holds out good inducements for a settlement. there is an indian village half a mile below the point; and opposite, upon the northern side of the river, a good millstream, the falls being near the river, and the mountain covered with timber.[ ] immediately above the point, the river spreads out to one and a half or two miles in width, and having several islands, portions of which are covered with cottonwood, oak and ash timber, the remainder being nearly all prairie. from oak point up to vancouver, the scenery very much resembles that along the hudson river through the catskill mountains, but much more grand, as the cascade range of mountains, and many snowcapped peaks, are in view. some portions of the way the shore is high rugged cliffs of rocks, at others indentations in the mountain leave bottoms, from a quarter to three miles wide, which are mostly covered with timber. from the lower mouth of the willamette to fort vancouver, the shores are lined with cottonwood timber, and upon the south side, as far up as the mouth of sandy, or quicksand river, which comes in at the western base of the cascade range. but few claims have as yet been taken along the columbia, but the fishing and lumbering advantages which this part of the country possesses over many others, holds out great inducements to settlers. { } from fort vancouver, for several miles down upon the north side, the country is sufficiently level to make good farming land; and the hudson's bay company, or members of the company, have extensive farms, with large herds of cattle. fort vancouver is one of the most beautiful sites for a town upon the columbia. it is about ninety miles from the ocean, and upon the north side of the river. large vessels can come up this far. the banks of the river are here about twenty-five feet high. much of the bottom land about the fort is inclined to be gravelly, but produces well.[ ] a party consisting of nine persons, in two row-boats, started from oregon city on the th of december, for fort vancouver, and arrived there in the afternoon of the th. in our party was colonel m'clure, formerly of indiana, and who had been a member of the oregon legislature for two years.[ ] as soon as we landed, he made his way to the fort, which is about four hundred yards from the shore, with the view of obtaining quarters for the party. he soon returned and conducted us to our lodgings, which were in an old cooper's shop, or rather shed, near the river. before starting we had prepared ourselves with provisions, and a few cooking utensils. we set to work, and although the wind and rain made it unpleasant, we soon had a comfortable meal in readiness, and we made good use of the time until it was devoured. this was holyday with the servants of the hudson's bay company, and such _ranting_ and frolicking has perhaps seldom been seen among the sons of men. some were engaged in gambling, some singing, some running horses, many promenading on the river shore, and others on the large green prairie above the fort. h. b. majesty's ship of war modesté was lying at anchor about fifty yards from the shore.[ ] the sailors also seemed to be enjoying the holydays--many of them were on shore promenading, and casting _sheep's eyes_ at the fair native damsels as they strolled from wigwam to hut, and from hut to wigwam, intent upon seeking for themselves the greatest amount of enjoyment. at night a party was given on board the ship, and judging from the noise kept up until ten at night, they were a jolly set of fellows. about this time a boat came ashore from the ship, with a few land lubbers most gloriously drunk. one of them fell out of the boat, and his comrades were barely able to pull him ashore. they passed our shop, cursing their stars for this ill luck. we wrapped ourselves in our blankets, and lay down upon { } a pile of staves. the rain was falling gently, and we were soon asleep. in the after part of the night, several of us were aroused by a strange noise among the staves. in the darkness we discovered some objects near us, which we supposed to be hogs. we hissed and hallooed at them, to scare them away. they commenced grunting, and waddled off, and all was again quiet, and remained so until daylight; but when we arose in the morning, we found ourselves minus one wagon sheet, which we had brought along for a sail, our tin kettle, eighteen or twenty pounds of meat, a butcher knife and scabbard, one fur cap, and several other articles, all of which had been stolen by the indians, who had so exactly imitated the manoeuvres of a gang of hogs, as entirely to deceive us. after breakfast we visited the fort, where we had an introduction to dr. mclaughlin, the governor of the hudson's bay company. he appears to be much of a gentleman, and invited us to remain during the day; but as we were upon an excursion down the river, we only remained to make a few purchases, which being accomplished, we left the place. as before stated, the fort stands upon the north bank of the columbia, six miles above the upper mouth of the willamette, and about four hundred yards from the shore. the principal buildings are included within a stockade of logs, set up endwise close together, and about twelve feet high; the lower ends of the timbers being sunk about four feet in the ground. a notch is cut out of each log near the top and bottom, into which a girth is fitted, and mortised into a large log at each end, the whole being trenailed to this girth. i judge the area contains about four acres. the first thing that strikes a person forcibly upon entering one of the principal gates upon the south, is two large cannons, planted one upon either side of the walk leading to the governor's house, immediately in front of the entrance. many of the buildings are large and commodious, and fitted up for an extensive business, others are old fashioned looking concerns, and much dilapidated. east of the fort and along the river bank there is a grassy prairie, extending up for about three miles; it has been cultivated, but an unusually high freshet in the river washed the fence away, and it has since remained without cultivation. the soil is gravelly. north of this, and extending down nearly even with the fort there is a handsome farm, under good cultivation. north of the fort there is a beautiful orchard, and an extensive garden, with several large blocks of buildings. below the { } fort, and extending from the river for half a mile north, is the village; the inhabitants of which are a mongrel race, consisting of english, french, canadians, indians of different nations, and half breeds, all in the employ of the company. the buildings are as various in form, as are the characteristics of their inmates. as yet there are but few americans settled upon the north side of the columbia. there seems to have been an effort upon the part of the hudson's bay company, to impress the american people with an idea that the entire country north of the river was unfit for cultivation. not only was this statement made to emigrants, but it was heralded forth to the whole world; and as much of the country along the columbia corroborated this statement, no effort was made to disprove it. americans visiting that country being so well pleased with the attentions paid them by the hudson's bay company, took for granted their statements, without examining for themselves, and have asserted it at home, in accordance with british interests, and this i fear has had its influence in the settlement of this question. for any one acquainted with the character of the claims of the respective governments can but admit, that greater privileges have been granted to great britain than that government had any right to expect, or than the justice of our claim would allow. undoubtedly, the largest part of good agricultural country is south of ° north latitude, but there is a great deal of excellent land north of that line. but little of it has been explored by americans, and we have taken only the statements of british subjects, and upon their authority, the question between the two governments was settled. but as we have proven by actual examination the incorrectness of their statements in relation to the country between the columbia and the th degree north latitude, we may reasonably infer that they are also incorrect in relation to the remainder of the country north. that the general features of the country north of the columbia river are rough and mountainous, is admitted; and the same may be said in relation to the country south of it; but that it is barren and sterile, and unfit for cultivation, is denied. the country upon the north side of the columbia abounds with beautiful valleys of rich soil, of prairie and timbered lands, well watered, and adapted to the growth of all the grains raised in the northern, middle, and western states, with superior advantages for grazing; never failing resources for timber { } and fish; and its proximity to one of the best harbors in the world, renders it one of the most desirable and important sections upon the pacific coast. frazer's river, with its numerous tributaries, will afford a settlement which will compare well with england itself. vancouver's island, an excellent body of land, is equal to england in point of size, fertility of soil, climate, and everything that would constitute great national wealth. and besides these, there are undoubtedly extensive valleys north of frazer's river, which will compare well with it; but we know nothing positively upon this subject.[ ] the excellent harbors of puget's sound, with its many advantages, and the delightful country about it, are sufficient to induce capitalists to look that way. this will probably be the principal port upon the coast. here will doubtless be our navy yard and shipping stores. it is thought by many that an easy communication can be had between the sound and the middle region, by striking the columbia above fort wallawalla. if this can be effected, it will lessen the distance materially from the settlement upon the upper columbia to a seaport town; and as the navigation of that river, between the cascade and lewis's fork is attended with great danger and difficulty, a route through to the sound in this quarter would be very desirable.[ ] that it can be accomplished there is but little doubt. a stream emptying into the ocean between the columbia and the sound, called shahales, affords a very good harbor, which is called gray's harbor.[ ] up this stream there is a country suitable for an extensive settlement. like most other valleys in the country it is diversified with prairie and timbered land, and well watered. no claims as yet have been taken in this valley. there are two peaks upon the north side of the river, which remain covered with snow the whole year round. one is called mount st. helen, and stands north east of fort vancouver, and distant perhaps forty-five or fifty miles. the other is mount regnier, and stands some thirty-five miles from st. helen, in a northerly direction. this is said to be a volcano. the distance from fort vancouver to puget's sound, in a direct line, cannot exceed ninety miles; but the high mountains between render the route somewhat difficult, and the distance necessarily traveled would be considerably increased. about forty miles below fort vancouver there comes in a { } stream called cowlitz; twenty-five miles up this stream there is a french settlement of about twenty families. like those in the settlement upon the east side of the willamette river, they have served out their term of years in the h. b. company, have taken claims, and become an industrious and thriving population.[ ] * * * * * the people in oregon have adopted a code of laws for their government, until such time as the united states shall extend jurisdiction over them. the powers of the government are divided into three distinct departments--the legislative, executive, and judicial. the legislative department is to consist of not less than _thirteen_ members, nor more than _sixty-one_; the number not to be increased more than _five_ in any one year. the members are elected annually; each district electing a number proportionate to its population. the executive power is vested in one person, who is elected by the qualified voters of the territory, and holds his office for the term of two years. the judicial power is vested in a supreme court, and such inferior courts of law, equity, and arbitration, as may by law from time to time be established. the supreme court consists of one judge, elected by the legislature, and holds his office four years. they have adopted the iowa code of laws.[ ] oregon is now divided into eight counties, viz: lewis, vancouver, clatsop, yam-hill, polk, quality, clackamis, and shampoic.[ ] lewis county includes that portion of country about puget's sound;--vancouver, that along the northern side of the columbia. these two counties comprise all the territory north of the columbia river. clatsop county includes that part of the country west of the centre of the coast range of mountains, and from the river south, to yam-hill county, and of course includes astoria, clatsop plains, &c. quality county includes the territory bounded on the north by the columbia, on the east by the willamette, on the south by yam-hill, and on the west by clatsop county. yam-hill county is bounded on the north by quality and clatsop, (the line being about fifteen miles south of oregon city,) on the east by the willamette river, on the south by polk county, and on the west by the ocean. { } polk county is bounded on the north by yam-hill county, on the east by the willamette, on the south by the california line, and on the west by the pacific ocean. clackamis county is bounded on the north by the columbia, on the east by the rocky mountains, on the south by shampoic county, and on the west by the willamette, including oregon city. shampoic county is bounded on the north by clackamis county, on the east by the rocky mountains, on the south by california, and on the west by the willamette. the country will, without doubt, be divided into at least three states. one state will include all the country north of the columbia river. nature has marked out the boundaries. another state will include all that country south of the columbia river to the california line, and west of the cascade range of mountains. this country, however, is large enough to form two states. the country east of the cascade range, extending to the rocky mountains, and between the columbia and california, would make another state. this would include more territory than all the remainder; but it would cover all that vast barren region of country which can never be inhabited by the white man. the western portion of this section is fertile. the line doubtless would be established between, leaving the eastern portion as oregon territory, for future generations to dispose of. the country now contains over six thousand white inhabitants; and the emigration this year, over land, will be about seventeen hundred souls, and that by water will probably equal it, which will increase the number to near ten thousand. it may be a safe calculation to set down the number for the first of january, , at twelve thousand souls. the settlers are labouring under great disadvantages on account of not being able to obtain a sufficient amount of farming implements. the early settlers were supplied at the hudson bay company's store, and at prices much less than those now charged for the same articles. at that time the supply was equal to the demand; but since the tide of emigration has turned so strongly to this region, the demand is much greater than the supply. this may be said of almost every kind of goods or merchandise. the supply of goods in the hands of the american merchants has been very limited, being the remnant of cargoes shipped round upon the coast, more for the { } purpose of treating with the indians, than with the cultivators of the soil. great complaints have been made by the merchants trading in that quarter, that they were not able to compete with the hudson bay company; and this is the cry even at home; but the fact is, the prices were much lower before these american merchants went into the country than they now are. their mode of dealing is to ask whatever their avarice demands, and the necessities of the purchaser will bear. and not being satisfied with an open field, they have petitioned the hudson bay company to put a higher price upon their goods, as they were selling lower than the american merchants wished to sell. in accordance with this request, the h. b. company raised the price of goods _when sold to an american_, but sold them at the old prices to british subjects. this arrangement was continued for two years; but an american can now purchase at the fort as cheap as any one. these facts i obtained from various sources, and when apprised of the prices of goods in that country, they are not so hard to be believed. i paid for a pair of _stoga_ shoes, made in one of the eastern states, and a very common article, four dollars and _fifty_ cents; for a common coarse cotton flag handkerchief, which can be had in cincinnati for five or ten cents, fifty cents. the price of calico ranges from thirty-one to eighty-seven and a half cents a yard; common red flannel one dollar and fifty cents per yard; a box of two hundred and fifty percussion caps, two dollars and fifty cents; coarse boots, eastern made, six to eight dollars; calfskin from ten to twelve dollars; coarse half hose, one dollar; dry goods generally ranging with the above prices. iron was selling at twelve and a half cents per pound. tools of all kinds are very high; so that whatever may be said against the company, for putting down the prices to destroy competition by breaking up other merchants, cannot be "sustained by the facts of the case." that they prevent them from raising the prices there is no doubt, and if the american merchants had the field, clear of competition, the prices would be double what they now are. they have not capital to enable them to keep up a supply, nor to purchase the surplus of the country. the hudson bay company are the only purchasers to any extent, for there are no others who have the necessary machinery to manufacture wheat, which is the staple of the country at present. the american merchants buy a few fish, { } hides, and lumber; but in such limited quantities as to be of very little advantage to the country. a few american merchants, with a little capital, would give an impulse to trade, encourage the settlers, make it a profitable business to themselves, and add much to the character of the country. there is scarcely any branch of business that might not be carried on successfully in oregon. flouring mills, saw-mills, carding machines, fulling and cloth dying, tin shops, potteries, tanyards, &c., &c., would all be profitable; and in truth they are all much needed in the country. the price of a flour barrel is one dollar; that of common split-bottom chairs twenty-four dollars per dozen; a common dining table without varnish, fourteen dollars; half soling a pair of shoes or boots, two dollars; cutting and splitting rails, one dollar and twenty-five cents per hundred; eighteen inch shingles, four dollars and fifty cents per thousand; cutting cord wood, from seventy-five cents to one dollar per cord; carpenter's wages from two to three dollars per day; laborer's from one to two dollars per day; plough irons fifty cents per pound; stocking a plough, from four to six dollars. wheat, eighty cents per bushel; potatoes fifty cents; corn sixty-two and a half cents; oats fifty cents; beef four to six cents per pound; pickled salmon by the barrel, nine to twelve dollars for shipment; work cattle are from seventy-five to one hundred dollars per yoke; cows from twenty-five to fifty dollars each; american work horses from one hundred and fifty to two hundred dollars. i have never heard of any sheep being sold, but presume they would bring from five to ten dollars. a tailor will charge from six to twelve dollars for making a dress coat. hogs are high, though there seems to be plenty of them in the country. the common kinds of poultry are plenty. it is a singular fact that the honey bee is not found in the oregon territory, neither wild nor domesticated. beef hides are two dollars each; a chopping axe from four and a half to six dollars; a drawing knife, three to five dollars; hand-saws, six dollars; crosscut saws, eight to twelve dollars; mill-saws, twenty-five dollars. there is but little hollow ware in the country. no stationery of any kind could be had when i was there. the people are in great need of school books; some sections being destitute of schools in consequence of not being able to procure books. good teachers are also much needed. i had expected to find the winters much more severe than they turned out to be. i had no thermometer, and no means { } of ascertaining the degrees of heat and cold, but i kept an account of the wet and dry weather, cloudy, clear, &c., &c., commencing on the first day of november and ending on the fifth of march, which was the day i started on my return to the united states. the st and d days of november were clear; d rainy; then clear until the th; cloudy until the th. then cloudy, with slight showers of rain until the th; st and nd clear; d rainy; th and th were cloudy, but no rain; the weather was then clear until the th, when it again clouded up. th of november and first of december were cloudy; d and rd clear, with frosty nights. on the th a misty rain; th and th were cloudy; from th to th clear and cool, with frost every night. on the th it rained nearly all day, and on the th about half the day. th and th were cloudy. from the th to d clear and pleasant, with frosty nights; it thawed through the day in the sun all that froze at night, but in the shade remained frozen. from the d to th cloudy, with showers of drizzling rain; th, th and th rain nearly all the time, but not very copiously; the mornings were foggy. the th and th were clear, but very foggy in the forepart of the day; th and st rain about half the time. from the st to d of january it was squally, with frequent showers of rain; th cloudy, but no rain; th rained nearly all day. from the th to the th, clear and pleasant, being slightly foggy in the mornings; from th to th rained about half each day, and nearly all the night; th and th, cloudy without rain. the th and st, slight rain nearly all the time; d was cloudy; d and th, rain about half of each day; th rained all day, th cloudy, without rain, th was rainy, some heavy showers; th was clear; th, th and st, were showery and blustering, raining about half the time, and foggy. the st of february was clear; d cloudy, d rainy; th and th were a little cloudy, but pleasant; th and th, a few slight showers; th and th rainy and quite cool; snow was seen on the lower peaks of the coast range of mountains, but none in the valley. the th was cloudy, at night a little frost; th was rainy; th and th rained all the time; th and th were nearly clear, with light frosts. the weather remained clear until the rd, with light frosts, but not cold enough to freeze the ground; th cloudy; th clear; th, th, and th rained all the time. { } first of march, rained half the day; d cloudy, d rained all day; th cloudy, th was showery--making in all about twenty days that it rained nearly all the day, and about forty days that were clear, or nearly so; the remainder of the days were cloudy and showery. a number of the days set down as rainy, a person with a blanket coat could have worked out all the day without having been wet. much of the time it rained during the night, when it was clear through the day. i should think that two-thirds of the rain fell during the night. no snow fell in the valleys, nor were there frosts more than _fifteen_ nights. ice never formed much over a quarter of an inch in thickness. the little streams and "_swales_" sometimes rise so high as to make it difficult to get about for a few days; but they are short, and soon run down. but little labour has yet been bestowed on the public roads. the willamette river is the highway upon which nearly all the traveling is done, and upon which nearly all the products of the country are conveyed. the numerous streams can be easily bridged, and when this is done, there will be but little difficulty in traveling at any period of the year. upon the th of march, , i set out on my return to the states. about one week previous, a party of seven persons had also set out on their return, and we expected to overtake them at dr. whitman's station. a few head of lame cattle had been left the preceding fall with a man named craig, who resided near spalding's mission;[ ] and as the indians in that vicinity had large bands of horses, which they wished to trade for cattle, i purchased several head of cattle to trade for horses, as also did others of the party. i, however, had purchased two horses and one mule; which, with several horses and mules belonging to the party, had been taken ahead on the d of the month, with the view of crossing the columbia river at fort vancouver, going up the valley of the columbia, and recrossing below the dalles. by this route we would avoid the deep snow on the cascade mountains. we loaded our effects on board a boat which we had bought for that purpose, and at two o'clock p.m. shoved off; and although anxious to be on the way back, yet i left the place with considerable reluctance. i had found the people of oregon kind and hospitable, and my acquaintance with them had been of the most friendly character. many of the persons who had traveled through to oregon with me, resided at oregon { } city. attachments had been formed upon the road, which when about to leave, seemed like parting with our own families. we were about to retrace the long and dreary journey which the year before had been performed, and again to brave the privations and dangers incident to such a journey. traveling as we expected to do on horseback, we could not take those conveniences so necessary for comfort, as when accompanied with wagons; but we bade adieu to the good people of oregon, and rapidly floated down the willamette to the town of portland, twelve miles below the falls. it commenced raining quite fast, and we hove to, and procured quarters with mr. bell, one of the emigrants who had recently settled at this place. this will probably be a town of some consequence, as it occupies a handsome site, and is at the head of ship navigation. mr. petigrew[ ] of new york is the proprietor. it continued raining nearly all night. in the morning the rain abated; we again took the oars, and in two hours and a half reached the town of linnton. here are a few log huts, erected among the heavy timber; but it will not, probably, ever be much of a town.[ ] a great portion of the emigrants traveling down the columbia land at this place, and take the road to quality plains, which are about twenty-five miles distant; but the road is a bad one. at o'clock p. m. we arrived at fort vancouver, where we made a few purchases to complete our outfit, and then rowed up the river two miles and a half, and encamped. here we found the party with our horses. the indians had stolen two horses, several trail ropes, &c. the day was showery. on the th we ascended about eighteen miles, to the mouth of a stream coming in upon the north side of the river, about one hundred yards in width, having its source in mount st. helen. here a commencement of a settlement had been made by simmons, parker, and others, and about a dozen buildings erected, but were now abandoned on account of its being subject to be overflowed by the annual high freshets of the columbia river.[ ] the soil is good, with several patches of prairie. on our way we passed the grist and saw mills of the hudson's bay company. they stand immediately upon the bank of the columbia. the water power is obtained from small mountain streams. the mills are six and eight miles above the fort. several islands in the river might be _leveed_ and successfully cultivated. the day was cloudy, with occasional showers of rain, and some hail. { } on the th we advanced sixteen or eighteen miles. for the greater part of the way, the river is hemmed in by high, craggy, rocky cliffs. at a point, called cape horn, the rocks project over the stream, presenting a huge mass of black looking rocks of several hundred feet in height.[ ] some of them seem to have broken and slid from their former position, and now stand in detached columns erect in the deep stream, presenting a grand and terrific appearance. at several points, streams of water were tumbling more than a thousand feet from crag to crag, and falling into the river in broken sheets. upon one of these columns stands a solitary pine tree, and upon the topmost branch sat a large bald-headed eagle. we rowed nearly under it, when one of our men took his rifle and fired, and down came the eagle, striking the water not more than ten feet from the boat. a wing had been broken, and we dispatched him with our oars; he measured over seven feet from tip to tip of the wings. round this point the water is sometimes very rough. boats have been compelled to lay to, for two weeks, on account of the roughness of the water. the day was clear. upon the th we progressed about ten miles. seven miles brought us to the foot of the rapids, called the cascade falls, and here for five miles the river is hemmed in and contracted to not more than three hundred yards in width, and runs with tremendous velocity.[ ] we were compelled to _cordelle_ our boat, and sometimes lift it over the rocks for several rods. it is not easy to form an idea of the difficulties to be encountered, in ascending this rapid. late in the evening we encamped, after a day of hard work in wading, pulling and lifting. it rained nearly all night. on the th we arrived at the head of the portage. three times we were compelled to unload our boat, and carry our effects over the rocks along the shore; and at the main falls the distance of the portage is nearly one mile. at night we had completed the portage, and were all safe above the falls. at the foot of the rapids we met several families of emigrants, who had been wintering at the dalles. one of them had traveled the most of the way with us, but being unwilling to travel as fast as we wished, had not arrived in time to get through before winter set in. in this family was a young woman, who so captivated one of our party, that he turned back with them. on the th we made but about eight miles; the wind causing { } a swell that rendered boating dangerous. the day was clear, and at night there was a hard frost. we progressed twelve or fourteen miles on the th; the day was cloudy. here we had designed crossing the river with our horses. the morning of the th was too windy to swim our horses over. we attempted to take them up the north side of the river; but after clambering about three miles, we were compelled to halt, the cliffs being so abrupt that we were unable to pass them with horses. we remained at this place through the day. on the morning of the th the wind had so abated that we could swim our animals. we commenced by taking four at a time; two upon each side of the boat, with four men rowing. in this manner by ten o'clock a. m., all had crossed. the water was very cold. the width of the river at this place, is more than a mile. the party with the horses then took the trail, and we saw no more of them, until we arrived at the dalles, which we reached on the th. here we found five of the party who had started a week in advance of us. two of their company had gone on to whitman's station. we sold our boat to the missionaries, and remained here until the morning of the th, endeavoring to hire and buy horses to pack our effects to dr. whitman's. there were hundreds of horses belonging to the indians, but their owners knew our situation, and wished to extort a high price from us. we so arranged our effects as to pack them on the mules and horses we had, and we ourselves traveled on foot. on the evening of the th, we packed up and proceeded two miles, when we encamped. two indians came and encamped with us. in the night our mules began to show signs that a thief was approaching. the guard apprised us of it, and we prepared our arms. our two indian friends seeing that we were prepared to chastise thieves, roused up and commenced running around the camp, and hallooing most lustily; probably to give warning that it was dangerous to approach, as they soon disappeared. during the day we had seen some sport. as we were nearly all _green_ in the business of packing, and many of our animals were quite wild, we frequently had running and kicking "sprees," scattering the contents of our packs over the prairie, and in some cases damaging and losing them. in one instance, while traveling along a narrow, winding path upon the side of { } a bluff, a pack upon a mule's back became loose; the mule commenced kicking, and the pack, saddle and all, rolled off, and as the trail rope was tied fast to the mule's neck, and then around the pack, it dragged the mule after it. the bank for six or eight hundred feet was so steep that a man could scarcely stand upright. the mule was sometimes ahead of the pack, at others the pack was ahead of the mule. at length, after tumbling about one thousand feet, to near a perpendicular ledge of rocks, they stopped. six feet farther would have plunged them over a cliff of two hundred feet, into the river. we arrived at and crossed falls river, receiving no other damage than wetting a few of our packs.[ ] we encamped two miles above falls river, having traveled about sixteen miles. the weather was clear and warm. we traveled leisurely along, nothing remarkable occurring; but as some of the party were unaccustomed to walking, they soon showed signs of fatigue and sore feet. we were often visited by a set of half-starved and naked indians. on the th we reached fort wallawalla, or fort nez percés, as it is sometimes called. this fort stands upon the east side of the columbia, and upon the north bank of the wallawalla river. we went about three fourths of a mile up the wallawalla river, and encamped. near us was a village of the wallawalla indians, with their principal chief.[ ] this old chief was not very friendly to americans. the season before, a party of the wallawallas had visited california, by invitation of capt. suter; and whilst there, a difficulty arose about some horses, and the son of the old chief was killed in the fort. the indians left immediately, and as suter claimed to be an american, the chief's feelings were excited against all americans. he had showed hostile demonstrations against a party of americans the summer previous; and when we arrived, we were told that he was surly, and not disposed to be friendly. the grazing about the camp was poor, and we sent a few men with the animals to the hills, three miles distant, to graze. near night we observed quite a stir among the indians. we gave a signal to drive in the horses; they soon came in, and we picketed them near the camp. as soon as it was dark the indians commenced singing and dancing, accompanied with an instrument similar to a drum, and giving most hideous yells, running to and fro. we began to suspect that they meditated an attack upon our camp; and we accordingly prepared to meet them by building a fortification of { } our baggage, and posting a strong guard. we remained in this position until daylight, when we packed up, and traveled up the wallawalla eight or ten miles, when we stopped, cooked breakfast, and allowed our animals to graze. before starting, the old chief and a few of his principal men made us a visit. they appeared friendly, and wished to trade. we gave them some provisions, and made them a few presents of tobacco, pipes, &c. after shooting at a mark with the chief, to convince him of our skill, we conversed on various subjects, among which the death of his son was mentioned, and he expressed his determination to go to california this season. we parted, he and his people to their village, and we upon our route to dr. whitman's. we were here joined by a party of nez percé indians; among whom were four of their principal chiefs. ellis the great chief was with them. he speaks very good english, and is quite intelligent. he was educated at the hudson's bay company's school, on red river.[ ] they traveled and encamped with us, making heavy drafts upon our provisions; but as we expected to replenish at whitman's, we gave them freely. we encamped on a branch of the wallawalla. this is a most beautiful valley of good land, but timber is limited to a few cottonwood and willows along the streams. in the afternoon of the th we reached dr. whitman's station.[ ] here we remained until the st, when in company with four others, and the nez percé indians, we started for spalding's mission--mr. spalding being of our party. the rest of our party remained at whitman's. our object was to purchase horses and explore the country. the distance from dr. whitman's to spalding's was about one hundred and fifty miles, in a northeast direction. the first day we traveled but about twenty-five miles, over a most delightful prairie country, and encamped on a beautiful clear stream coming down from the blue mountains, which are about twelve miles distant.[ ] the first of april we traveled about fifty-five miles, also over a delightful, rolling, prairie country; crossing several beautiful streams, lined with timber, and affording desirable locations for settlement. the soil is rich, and covered with an excellent coat of grass. this region possesses grazing advantages over any other portion of oregon that i have yet seen. the day was blustering, with a little snow, which melted as it reached the ground. on the d of april we arrived at mr. spalding's mission, { } which is upon the kooskooskee or clear water,[ ] and about twenty miles above its mouth or junction with lewis's fork of the columbia. ten miles from our camp we struck lewis's fork, and proceeded up it for five miles, and crossed. on our way up we passed a ledge of rocks of fluted columns, two or three hundred feet high. the bluffs of lewis's fork and the kooskooskee are very high, sometimes more than three thousand feet. the hills are nearly all covered with grass. as the time i could remain in this region would not allow me to explore it satisfactorily, i requested mr. spalding to furnish me with the result of his experience for ten years in the country. he very kindly complied, and the following is the information obtained from him.[ ] as he goes very much into detail, it is unnecessary for me to add any further remarks here, in relation to this region of the country. we remained at this missionary establishment until the th of april. during our stay, we heard related many incidents common to a mountain life. at one time, when mr. spalding was on an excursion to one of the neighboring villages, accompanied by several indians and their wives, they espied a bear at a short distance clambering up a tree. he ascended thirty or forty feet, and halted to view the travelers. a tree standing near the one upon which sat the bear, with limbs conveniently situated to climb, induced mr. spalding to attempt to _lasso_ master bruin. he accordingly prepared himself with a _lasso_ rope, and ascended the tree until he attained an elevation equal to that of the bear. he then cut a limb, rested the noose of the rope upon one end, and endeavored to place it over the head of the bear; but as the rope approached his nose, bruin struck it with his paw, and as mr. s. had but one hand at liberty, he could not succeed, the weight of the rope being too great. he called to some of his indian friends, to come up and assist him; but none seemed willing to risk themselves so near the formidable animal. at length one of the squaws climbed up, and held the slack of the rope, and mr. s. succeeded in slipping the noose over bruin's head. he then descended from the tree, and as the rope extended to the ground, they gave it a jerk, and down came the bear, which fell in such a way as to pass the rope over a large limb, thus suspending him by the neck. the cattle which we had purchased were scattered over the { } plain. on the d they were brought in, and the chief ellis bought the whole band, agreeing to give one horse for each head of cattle. his place of residence was about sixty miles further up the kooskooskee, but his father-in-law resided near the mission. ellis made arrangements with the latter for six horses, and delivered them to us, and his father-in-law took possession of the cattle. we left the horses in his possession, until ellis could return with the remainder of the horses. in his absence many of the natives came in with their horses to trade for the cattle, and when informed that ellis had bought them all, they were very much displeased, and charged ellis with conniving with the whites against his people. in a few days ellis returned, when the feelings of his people were so much against him, that he was forced to abandon the trade. his father-in-law drove down his band of horses according to agreement, but instead of bringing the horses which had been selected, he brought some old, broken-down horses that could not stand the trip. we objected to receive these horses, and thus broke up the whole arrangement. they had the horses and cattle; of course we demanded the cattle; the indians showed us that they were on the plains, and that we must hunt them up. we dispatched a party, and they soon brought us all but one heifer. our intention then was to drive the cattle down to dr. whitman's, and trade with the cayuses; but as we would be compelled to travel on foot for nearly one hundred and fifty miles, we abandoned the project. the neighboring indians soon drove in some horses to trade, and before night we had disposed of all but four head of our cattle, one yoke of oxen, one yearling heifer, and a yearling calf. the oxen belonged to me. i left them in charge of mr. spalding, until my return. in the exchange one horse was given for a cow or heifer. a few horses were purchased for other articles of trade, such as blankets, shirts, knives, &c. the value of fourteen dollars in trade would buy an ordinary horse; if it was an extra horse something more would be asked. four blankets was the price of a horse. none of the indians would take money except ellis. in fact they did not seem to know the value of money. during our stay at this place, the indians flocked in from all quarters. it is but seldom that the whites visit this portion of the country, and the indians all seemed anxious to see us. the house was literally filled from morning until night with men, women, and children. they are usually much better { } clad than any other tribe east or west of the mountains, are quite clean, and are an industrious people. they have made considerable advances in cultivating the soil, and have large droves of horses, and many of them are raising large herds of cattle. mr. and mrs. spalding have kept up a school, and many of the indians have made great proficiency in spelling, reading, and writing. they use the english alphabet to the nez percé language. mr. spalding has made some translations from the scriptures, and among others from the book of matthew. from this printed copy[ ] many of the indians have printed with a pen facsimiles of the translation, which are neatly executed. i have several copies in my possession of these and other writings, which can be seen at any time in laurel, indiana. they are a quiet, civil people, but proud and haughty; they endeavor to imitate the fashions of the whites, and owe much of their superior qualifications to the missionaries who are among them. mr. spalding and family have labored among them for ten years assiduously, and the increasing wants and demands of the natives require an additional amount of labor. a family of their own is rising around them, which necessarily requires a portion of their time; and the increasing cares of the family render it impossible to do that amount of good, and carry out fully that policy which they have so advantageously commenced for the natives. it is impossible for one family to counteract all the influences of bad and designing men, of whom there are not a few in the country. they need more assistance. there are a sufficient number of establishments, but not a sufficient number of persons at those establishments. for instance: mr. spalding must now attend not only to raising produce for his own family, but also to supply in a great measure food to numerous families of indians; to act as teacher and spiritual guide, as physician, and perform many other duties incident to his situation. with such a multitude of claims on his attention, his energies are too much divided, and on the whole his influence is lessened. could not the missionary board send out an assistant? there is one thing which could be accomplished with a small outlay, that would be of lasting advantage to these people. they are raising small flocks of sheep, and have been taught to card and spin and weave by hand, and prepare clothing--but the process is too tedious. a carding machine and machinery for fulling cloth would be a saving to the board of { } missions, and of lasting benefit to the natives. there are no such machines in that country. the wood work of those machines could nearly all be done in the country; the cards and castings are all that would be necessary to ship. a mechanic to set up the machines would be necessary. perhaps no part of the world is better adapted to the growth of wool than this middle region, and it abounds with water-power to manufacture it. farmers, mechanics and teachers, should be sent among these people by the missionary board, or by the government. a division is about being made in this nation, which if not counteracted, will doubtless lead to bad consequences. three delaware indians have crossed the mountains, and settled on the kooskooskee among the nez percé indians. one of them, named tom hill, has so ingratiated himself into the feelings of the nez percé indians, that he has succeeded in persuading about one hundred lodges to acknowledge him as their chief. it was formerly, as among other tribes, customary for an indian to have as many wives as he could maintain; but the missionaries taught them otherwise, and succeeded in abolishing this heathen custom. but tom hill tells them that they can have as many wives as they please. he says to them, you make me chief, and i will make you a great people. the white men tell you not to steal--i tell you there is no harm in it; the bad consists in being caught at it. these men will mislead you, &c., &c. ellis and the other chiefs have exerted themselves to recall their people, but they cannot succeed. in conversing with ellis, i enquired whether cases of insanity were common among his people. he answered that he never knew a case of insanity, but this one of tom hill's. he looks upon him as a crazy man. the two other delaware indians are young men, and are industrious and peaceable. they have commenced cultivating the soil, and are raising a fine herd of cattle. ellis is considered wealthy. he has about fifteen hundred horses, a herd of cattle, some hogs, and a few sheep. many persons in this nation have from five to fifteen hundred head of horses. in traveling from dr. whitman's to this place, i saw more than ten thousand horses grazing upon the plains. they are good looking, and some of them large. in the fall i had made enquiries as to whether it was practicable to obtain the necessary supplies at these missions for our home journey; and in the winter mr. spalding wrote to us that he could furnish us with flour and meat. we had accordingly { } contemplated procuring a part of our outfit at this place. a few bad designing indians had frequently given mr. spalding trouble about his place, and had made severe threats. at one time they had threatened to tie him, and drive his family away. they complained that the whites never came through their country, giving them the advantages of trade; but that the white men passed through the cayuse country, selling their cattle, clothing, &c.; and that if they could not have all the benefits of trade, the whites should leave the country. early in the spring some of them had got into a fit of ill humour, and had ordered mr. spalding from the place, cut open his mill-dam, threw down his fences, broke the windows of the church, crippled some of his hogs, and took possession of the whole premises. this time they seemed to be determined to carry their threats into execution. mr. s. allowed them to take their own course, putting no obstacle in their way. the principal men seemed to look on with indifference; but they evidently saw that it was likely to injure them, more than it would mr. spalding; for they relied upon the mill and farm for their support to a great extent. in the meantime mr. spalding had written a letter to us, informing us of his situation, and that we could not rely on him for furnishing us with supplies. he gave the letter to an indian to carry to dr. whitman's, that it might be forwarded to us. the indians being apprised of the contents of the letter, stopped the carrier, and took from him the letter, and after a consultation determined to abandon their rash course; as it would be likely to deprive them of the benefit of our trade, and be a barrier against the white men ever coming to trade with them. they accordingly brought the letter to mr. spalding, acknowledging they had done wrong, and placed him in full possession of his premises, promising to behave better for the future; and when we arrived he was enjoying their full confidence. the indians informed us that there was a good passway upon the north side of lewis's fork, by proceeding up the kooskooskee some sixty miles, and then striking across to salmon river, and then up to fort bois. by taking this route in the winter season, we would avoid the deep snow upon the blue mountains, as the route is mostly up the valley of lewis' river, and it is undoubtedly nearer to puget sound than by the old route. those wishing to settle about the sound would do well to take this route, or at least the saving in the distance { } would justify an examination of the route, to ascertain its practicability. we were very hospitably entertained by mr. spalding, and his interesting family. with the exception of mr. gilbert, who is now engaged on the mission farm, and mr. craig, who has a native for a wife, and lives six hundred yards from mr. spalding's dwelling, the nearest white families are messrs. walker and ellis, who have a mission one hundred and thirty miles to the north, among the flathead nation; and dr. whitman, nearly one hundred and fifty miles distant, among the cayuses.[ ] in this lonely situation they have spent the best part of their days, among the wild savages, and for no compensation but a scanty subsistence. in the early part of their sojourn they were compelled to use horse meat for food, but they are now getting herds of domestic animals about them, and raise a surplus of grain beyond their own wants. at mr. spalding's there is an excuse for a grist mill, which answers to chip up the grain, but they have no bolting cloth; in place of which they use a sieve. the meal makes very good bread. there was formerly a saw mill, but the irons have been taken and used in a mill which dr. whitman has recently built about twenty miles from his dwelling, at the foot of the blue mountains. the catholics have several missionary establishments upon the upper waters of the columbia.[ ] on the th of april we had made the necessary arrangements, and started on our return to dr. whitman's, where we arrived on the th. on my way down in the fall, i had left a horse and a heifer with the doctor. they were now running on the plains. several persons were engaged in hunting them up; the horse was found and brought in, and was in good condition. the indians had concealed the horse, in order to force a trade, and offered to buy him, they to run the risk of finding him; but as he was a favorite horse, that i had brought from home, i felt gratified when he was found. the heifer i traded for a horse, the purchaser to find her. my two oxen, which i had left at mr. spalding's, i traded for a horse. an indian who had stolen a horse from a company in the fall, had been detected, and the horse taken to fort wallawalla. he had again stolen the horse, and traded him off. he was at dr. whitman's, and as the owner was of our party, he made a demand for the horse, and the indian gave up a { } poor old horse in its stead. this was the same fellow that had bought my heifer. we remained at dr. whitman's until the th, when all was prepared, and we made a formal start. our party consisted of eighteen persons, and fifty-one horses and mules. we traveled about eight miles, and encamped. on the th, we traveled to the umatillo. on the way the fellow who had bought the heifer overtook us and demanded the horse, as he said he had not time to hunt up the heifer. i refused to give it up, and he insisted. at this juncture dr. whitman overtook us, and the indian made complaint to him. it was arranged that we should all go on to umatillo, where several of the chiefs resided, and have the matter amicably settled. we reached the river in the afternoon, and repaired to the chief's. the indian told his story, and i told mine. the chief decided that i should give up the horse, and he would give me a horse for the heifer. i agreed that in case the heifer could not be found, to give him another on my return to oregon. the indian set out with his horse, and the chief soon brought me one in its place, worth at least two such as the first. of course i was much pleased with the exchange. at night it commenced raining, and then snowing, and in the morning the snow was four or five inches deep on the ground. we were then immediately at the foot of the mountain, and as we expected the snow had fallen deep upon the mountain, we remained in camp all day. the th was unfavorable for traveling, and we remained in camp. on the st we took up the line of march, ascended the mountain, and advanced about twenty-five miles, which brought us over the dividing ridge. we found the snow in patches, and sometimes three feet deep--that is, the old snow, for the new fallen snow had all melted away. the grazing was poor, but at night we found a prairie upon the south side of the mountain, which afforded a scanty supply of grass; here we encamped for the night. the d was very blustery, sometimes snowing; very disagreeable traveling. we reached the grand round at o'clock p. m. and encamped. here we found an abundance of good grass, and halted for the night. during the night the horse which i had obtained of the old chief broke from his picket, and in company with one that was running loose, took the back track. in the morning we dispatched two men, who followed them about four miles, when it was found that the { } horses had left the road. the two men went back ten or twelve miles, but could see nothing of the horses. they then returned to camp. we in the mean time had packed up, and traveled across grand round about eight miles, when we encamped. in the morning we started back four men to hunt for the horses. on the evening of the th our men returned, but without the horses. on the morning of the th we packed up, traveled about twenty-six miles, and encamped on powder river, near the lone pine stump.[ ] on the th we traveled about twenty-five miles. on the th we traveled about twenty-three miles, and encamped near malheur. on the th we reached fort bois. the people at the fort, and the indians in the vicinity, were evidently much alarmed. before reaching the fort, i saw at a distance numerous columns of smoke, alternately rising and disappearing; and then another column would rise at a great distance. these columns of smoke seemed to be signals that enemies were in the country. the people at the fort were seemingly friendly, and supplied us with milk and butter. we selected our camping ground with caution, and with an eye to the defence both of horses and men. our guard was doubled. we were visited by many indians, but no hostile demonstration was exhibited. here the wagon road crosses the river, but as there were no canoes at the upper crossing, and the river was too high to ford, we decided upon traveling up the south side of the river. on the th of april we packed up, and left fort bois. the trail led us up to the mouth of a stream coming in on the south side of lewis river, about one hundred yards in width. this we reached in about three miles. immediately at the crossing is an indian village of the shoshonee tribe. when within one fourth of a mile from the crossing, an indian who had been at our camp the evening before, was seen riding furiously towards us. he came up directly to me, extending his hand, which i took of course; two or three were riding in front with me, who all shook hands with him. he then turned and led the way through the bushes to the crossing. at the point where we came out, the bank was some fifteen feet high. a narrow place had been cut down, so as to admit but one horse at a time to go up the bank; the village was immediately upon the bank, and i discovered some thirty or forty indians standing near the point where the trail ascended the bank. i rode { } to the top of the bank, where about fifteen ugly looking indians were standing, all striving to shake hands, but my horse would not allow them to approach. i passed on, the company following, and as we formed a long train, being in single file, by the time those behind were out of the creek, those in the lead were five or six hundred yards from the bank, and over a ridge. i halted the front, for all to come up, when i discovered that buckley, who was in the rear riding one horse and leading another, had not appeared over the ridge. two of the men who were in the rear went back for him. the horse which he was leading soon came running over the ridge, and as buckley did not make his appearance, we supposed that something was wrong. others started back, but they all soon returned, and we went on. in a few minutes, however, one of the party came riding up, and stated that the indians were going to charge upon us. at this instant a gun was fired by them, and a hideous yelling was heard at our heels. the indians were drawn up in line upon the ridge, all armed, some with muskets, and others with bows and arrows. the fellow who had met us, was still mounted, and running his horse from one end of the line to the other, and all were yelling like fiends. i thought it could not be possible that they would charge upon us, and ordered all hands to move along slowly but cautiously, to have their arms in readiness, and to keep the pack animals together, so that they could be stopped at any moment. we marched along slowly in close order, and paid no further regard to the indians, than to carefully watch their movements. they followed along a few hundred yards, and halted, their yells then ceased, and we saw nothing more of them. when the two men returned to buckley, the mounted indian spoken of had buckley's horse by the head; he had proposed an exchange, but buckley did not wish to swap, and asked him to let go the bridle: the indian held on, buckley pulled and he pulled; buckley rapped his knuckles with a whip, and in the scuffle the horse that b. was leading broke loose, and ran over the ridge, they not being able to catch him. at this juncture the two men arrived; one of them raised his rifle in the attitude of striking the indian on the head, but he paid no regard to it; the other, seeing his determined manner, rushed at him with his bowie knife; he then let go the bridle, and our men came up to the company. what his object was, or what their object in rallying their forces, i could not conjecture: but it { } put us on our guard. at our night encampment there were indians prowling about, but they were afraid of our riding too near them, and made no attempt to steal, or otherwise molest us. the country was extremely dry and barren; grazing was very poor. on the th of may we arrived at the upper crossing of snake river. on our way we had seen several villages of shoshonee indians, but were not disturbed by them. the grazing was poor, and the country very barren. we crossed several warm streams running down from the mountains, which appeared at a distance of from five to ten miles on our right. a wagon road can be had along the south side of the river, by hugging the base of the mountains for twenty or thirty miles, when it would take down the low bottom of snake or lewis river; but the distance is greater than by crossing the river. on the th of may we reached salmon falls, and went up six miles to salmon fall creek, and encamped. on the th and th it rained and snowed, so that we were compelled to lay by most of the time. on the th it cleared up, and in the afternoon we had fair weather and pleasant traveling. on the th we reached cassia creek. at this place the california trail turns off. on the th we arrived at fort hall. on the th we reached the soda springs. on the th we met about six hundred lodges of snake indians; they were moving from big bear river to lewis' fork. on the d we reached green river, taking the northern route. much of the time the weather has been cool with frosty nights, and several days of rain and snow. on the th we crossed green river, and traveled about forty miles to the big sandy. the day was blustering, with rain and snow. along the bottoms of the sandy we found very good grazing for our animals. on the th we traveled to the little sandy. on the th we arrived at the _south pass_, and encamped on sweet water. here we saw a few buffalo. the ride from little sandy to sweet water was extremely unpleasant on account of the wind and snow. we were sometimes compelled to walk, in order to keep warm. we here found a horse, which we supposed had been lost by some emigrants the year before. he came running to our band, and exhibited signs of the greatest joy, by capering and prancing about. he was quite fat, and seemed determined to follow us. { } on the th we traveled down the valley of sweet water about twenty-five miles. on our way we saw some hundreds of buffalo and antelope, and two grizzly bears. we gave the latter chase, but did not succeed in taking them. we had some difficulty in preventing our pack animals from following the numerous bands of buffalo which came rolling past us. we traveled down this valley until the th, and encamped about four miles east of _independence rock_, at a spring near a huge mountain of gray granite rock. soon after encamping it commenced raining, which turned to snow, and in the morning we had about five inches of snow upon us. we were uncomfortably situated, as we could procure but little fuel, and had no means of sheltering ourselves from the "peltings of the pitiless storm." our horses too fared poorly. on the st of may we remained in camp. by noon the snow had disappeared, and we succeeded in finding a few dry cedar trees, built a fire, and dried our effects. we had an abundance of buffalo marrow-bones, tongues, and other choice pieces, on which we feasted. we saw large droves of mountain sheep, or bighorn, and thousands of antelope. on the d of june we arrived at the north fork of platte. the plains during this day's travel were literally covered with buffalo, tens of thousands were to be seen at one view; antelope and black-tailed deer were seen in great abundance, and a few elk and common deer. one panther, and hundreds of wolves were also seen. we found the river too high to ford. soon after encamping, snow commenced falling, which continued all night, but melted as it reached the ground. the grazing on the bottom was excellent, the grass being about six inches high. this was the best grass we had seen since leaving burnt river. on the d we succeeded in finding a ford, and in the evening we crossed. on the th we reached deer creek, having traveled about thirty miles. on the way we saw a band of indians whom we supposed to be of the crow nation, and as they are generally for fight, we prepared to give them a warm reception; but it seemed that they were as fearful of us, as we were of them.[ ] they were soon out of sight. after traveling about five miles, we saw them drawn up into line two miles from the road. as they were at a respectful distance, we did not molest them. we however kept a sharp look out, and at night were cautious in selecting camp ground. the grass was good, and our animals fared well. { } on the th we traveled about fifteen miles, and encamped on mike's-head creek.[ ] here we found two trappers, who had been out about three weeks. they accompanied us to fort laramie, which we reached on the th of june. in the morning h. smith, one of our party, in catching a mule was thrown, and his shoulder dislocated.[ ] we attempted to set it, but could not succeed. he traveled on to the fort, but in great misery. we remained here until the afternoon of the th. mr. smith's shoulder was so much injured that he could not travel. he concluded to remain at the fort a few days; three men were to stay with him, and the rest of us had made arrangements for starting, when a company of oregon emigrants came in sight. we awaited their arrival, and had the gratification of hearing from the states, it being the first news we had received since leaving our homes. a part of us remained a few hours to give them an opportunity of writing to their friends; while five of the party took the road. in the evening we traveled about eight miles, and encamped. we continued for a distance of two hundred miles meeting companies of from six to forty wagons, until the number reached five hundred and forty-one wagons, and averaging about five souls to each wagon. they were generally in good health and fine spirits. two hundred and twelve wagons were bound for california; but i have since learned that many of those who had designed to go to california had changed their destination and were going to oregon.[ ] at ash hollow we met a company who had lost many of their cattle and horses; but they were still going on. a short distance below the forks of platte, we met a company of forty-one wagons, under the command of a mr. smith, which company had lost about one hundred and fifty head of cattle; they were encamped, and parties were out hunting cattle.[ ] we remained with them a short time, and then passed on. this was on the th of june. two of smith's company had taken the back track in search of a band of their cattle, which had traveled nearly forty miles on the return to the states. near night, and after we had encamped, two others of the company came up in search of the two men who had started in the morning. we had also met a boy belonging to their company, who had been in search of cattle, but had found none; and as it was nearly night, and he was about thirty miles from their camp, we induced him to remain with us through the night. { } the two men who had arrived after we had encamped, concluded to continue their search until they found the two other men who had preceded them. accordingly after taking some refreshments, they mounted and followed on. soon after dark, they came running their horses up to our camp, one of them having behind him one of the men who had started out in the morning. they had proceeded from our camp about seven or eight miles, when rising over a small swell in the prairie, they discovered a few head of cattle, and saw ten or twelve indians, a part of them engaged in catching a horse which mr. trimble (one of the men who had started out in the morning) had been riding, and some were engaged in stripping the clothes from mr. harrison, the other of the men. the men who had left our camp put whip to their horses, and ran towards the indians, hallooing and yelling. the indians seeing them approach, and probably supposing that there was a large company, left harrison, and ran under a bluff, but they took the horses with them. harrison put on his clothes and mounted behind bratten, (one of the men who had come to their rescue,) stating that the indians had killed trimble,[ ] and as none of the emigrants had fire-arms, the indians would soon return upon them. they then came to our camp. harrison stated that he and trimble had traveled nearly all day with that portion of our party who had started from the fort in advance of us, and near night had found five head of their cattle, with which they were returning to the company; and as they were traveling leisurely along, about dusk, whilst in a small hollow, ten or twelve indians came suddenly upon them, seized his horse, and endeavored to get hold of trimble's horse, but he jumped away, and ran his horse off. harrison in the mean time had dismounted, and three of the indians rifled him of his clothes. on looking to see what had become of trimble, he saw him riding in a circuitous manner towards the place where harrison was; at this instant some half dozen arrows were let fly at trimble by the indians, some of which took effect. he leaned a little forward, his horse at the time jumping; at that instant the crack of a gun was heard, and trimble fell from his horse upon his face, and did not move afterwards. his horse ran round for some minutes, the indians trying to catch him; and at that instant bratten and his friend came up. several of our party, supposing that we had passed all danger, had sold their arms to the emigrants, and we had but five { } rifles in the company. it was quite dark, and there would be but little prospect of finding trimble, if we attempted a search. we therefore remained in camp until morning. about eleven o'clock at night we dispatched two persons back to inform the company of what had occurred, with a request that a force might be sent, which would be able to chastise the indians, if found. early in the morning we packed up and traveled to the spot where the murder had been committed. we found there trimble's hat, whip, and pocket knife; and several large pools of blood where he had fallen from his horse, and where the indians had evidently stripped him. we also found several arrows, two of which appeared to have struck him; but nothing could be found of his body. the river platte was about a quarter of a mile distant; we searched the shore diligently, but could see no sign. as we approached the spot a gun was fired on a large island opposite, but we saw no indians. eight beds in the grass near where the attack was made, showed the manner in which the indians had been concealed. it is highly probable that the indians had driven the cattle off, and that some of the indians concealed themselves, and as trimble and harrison had no fire-arms, and carried long ox-whips, they could be easily distinguished as cattle hunters, and the indians knowing that the white men must come back, selected a favorable spot, and attacked them as above related. the probability is, that had trimble and harrison been armed, they would not have been molested. we remained upon the ground until late in the afternoon, waiting the arrival of the force from the company. we finally began to despair of their coming, and feared that the two men whom we had sent back had been cut off; and as we had two of the company with us, and one of our party was back, we packed up and took the back track, and after traveling about five miles, we discovered a band of their cattle crossing the river a mile above us. we made to the shore, when the cattle turned down the river, in the direction of the head of the big island. we judged that the indians had been driving the cattle, but upon our approach had left them. the river was quite shoal, and buckley waded out and turned them to the shore. there were in this band twenty-one head of work cattle; two of them carried marks of the arrow. after traveling three miles farther, we espied the party coming to our assistance, but it consisted of only seven persons. { } mr. trimble had left a wife and four children. she had sent by the party a request that we might come back, and allow her and family to travel with us to the u. states. we accordingly all took the road to the company's camp, (driving the cattle) which we reached at day-break on the morning of the th june. here we remained until the afternoon. by the persuasion of her friends, mrs. trimble concluded to continue her journey to oregon. but there were four families who had lost so many of their cattle, that they were unable to proceed on their journey. they had four wagons, and only five yoke of cattle, and some of them were very small. they wished us to travel with them through the pawnee country, as the pawnees were the perpetrators of the act which had caused them so much difficulty. we accordingly traveled with them until the th, when we left them, and resumed our journey towards home. on the morning of the st we were joined by mr. smith, and the three men who had been left at the fort. we traveled on rapidly day and night, barely giving our animals time to rest. the weather was becoming warm; the flies and musquitoes were very annoying. we arrived at the mission or agency on the morning of the th of july.[ ] here are extensive farms, and a most delightful country. the first view of cultivated fields, and marks of civilization, brought simultaneous shouts from the whole party. our troubles and toils were all forgotten. on the th of july, at o'clock a. m., we arrived at the st. joseph's mission, where we all hoped to meet with friends.[ ] we had been so long among savages, that we resembled them much in appearance; but when attired in new apparel, and shaved as became white men, we hardly knew each other. we had been long in each other's company; had undergone hardships and privations together; had passed through many dangers, relying upon each other for aid and protection. attachments had grown up, which when we were about to separate were sensibly felt; but as we were yet separated from our families, where still stronger ties were felt, each one took his course, and in a few hours our party was scattered, and each traveling in a different direction. those of us who had mules found ready sales; but as the horses were much reduced in flesh, they could not be disposed of. our horses had stood the trip remarkably well, until within two hundred and fifty miles of missouri. but the flies { } had so annoyed them, the weather being warm, and the grass of an inferior quality, that they had failed much. i had five horses; the one which i had taken from home was quite lame, and i left him at st. joseph's; the other four were indian horses, and mr. buckley agreed to take them by land, across missouri and illinois, and home; but he was unsuccessful, and arrived with only one of them. i took steamboat passage to st. louis[ ] and cincinnati, and thence by stage to laurel, indiana, where i arrived on the d of july; having been gone from home one year three months and one week. i had the pleasure of finding my family enjoying good health. necessary outfits for emigrants traveling to oregon for burthen wagons, light four horse or heavy two horse wagons are the size commonly used. they should be made of the best material, well seasoned, and should in all cases have falling tongues. the tire should not be less than one and three fourth inches wide, but may be advantageously used three inches; two inches, however, is the most common width. in fastening on the tire, bolts should be used instead of nails; it should be at least / or / inches thick. hub boxes for the hubs should be about four inches. the skeins should be well steeled. the mormon fashioned wagon bed is the best. they are usually made straight, with side boards about inches wide, and a projection outward of four inches on each side, and then another side board of ten or twelve inches; in this last, set the bows for covers, which should always be double. boxes for carrying effects should be so constructed as to correspond in height with the offset in the wagon bed, as this gives a smooth surface to sleep upon. ox teams are more extensively used than any others. oxen stand the trip much better, and are not so liable to be stolen by the indians, and are much less trouble. cattle are generally allowed to go at large, when not hitched to the wagons; whilst horses and mules must always be staked up at night. oxen can procure food in many places where horses cannot, and in much less time. cattle that have been raised in illinois or missouri, stand the trip better than those raised in indiana or ohio; as they have been accustomed to eating the prairie grass, upon which they must wholly rely while on the road. { } great care should be taken in selecting cattle; they should be from four to six years old, tight and heavy made. for those who fit out but one wagon, it is not safe to start with less than four yoke of oxen, as they are liable to get lame, have sore necks, or to stray away. one team thus fitted up may start from missouri with twenty-five hundred pounds and as each day's rations make the load that much lighter, before they reach any rough road, their loading is much reduced. persons should recollect that every thing in the outfit should be as light as the required strength will permit; no useless trumpery should be taken. the loading should consist of provisions and apparel, a necessary supply of cooking fixtures, a few tools, &c. no great speculation can be made in buying cattle and driving them through to sell; but as the prices of oxen and cows are much higher in oregon than in the states, nothing is lost in having a good supply of them, which will enable the emigrant to wagon through many articles that are difficult to be obtained in oregon. each family should have a few cows, as the milk can be used the entire route, and they are often convenient to put to the wagon to relieve oxen. they should be so selected that portions of them would come in fresh upon the road. sheep can also be advantageously driven. american horses and mares always command high prices, and with careful usage can be taken through; but if used to wagons or carriages, their loading should be light. each family should be provided with a sheet-iron stove, with boiler; a platform can easily be constructed for carrying it at the hind end of the wagon; and as it is frequently quite windy, and there is often a scarcity of wood, the stove is very convenient. each family should also be provided with a tent, and to it should be attached good strong cords to fasten it down. the cooking fixtures generally used are of sheet iron; a dutch oven and skillet of cast metal are very essential. plates, cups, &c., should be of tin ware, as queens-ware is much heavier and liable to break, and consumes much time in packing up. a reflector is sometimes very useful. families should each have two churns, one for carrying sweet and one for sour milk. they should also have one eight or ten gallon keg for carrying water, one axe, one shovel, two or three augers, one hand saw, and if a farmer he should be provided with one crosscut saw and a few plough moulds, as it is difficult getting such articles. when i left the country, ploughs cost from twenty-five to forty dollars each. a good supply of ropes for { } tying up horses and catching cattle, should also be taken. every person should be well supplied with boots and shoes, and in fact with every kind of clothing. it is also well to be supplied with at least one feather bed, and a good assortment of bedding. there are no tame geese in the country, but an abundance of wild ones; yet it is difficult procuring a sufficient quantity of feathers for a bed. the muscovy is the only tame duck in the country. each male person should have at least one rifle gun, and a shot gun is also very useful for wild fowl and small game, of which there is an abundance. the best sized calibre for the mountains is from thirty-two to fifty-six to the pound; but one of from sixty to eighty, or even less, is best when in the lower settlements. the buffalo seldom range beyond the south pass, and never west of green river. the larger game are elk, deer, antelope, mountain sheep or bighorn, and bear. the small game are hare, rabbit, grouse, sage hen, pheasant, quail, &c. a good supply of ammunition is essential. in laying in a supply of provisions for the journey, persons will doubtless be governed, in some degree, by their means; but there are a few essentials that all will require. for each adult, there should be two hundred pounds of flour, thirty pounds of pilot bread, seventy-five pounds of bacon, ten pounds of rice, five pounds of coffee, two pounds of tea, twenty-five pounds of sugar, half a bushel of dried beans, one bushel of dried fruit, two pounds of saleratus, ten pounds of salt, half a bushel of corn meal; and it is well to have a half bushel of corn, parched and ground; a small keg of vinegar should also be taken. to the above may be added as many good things as the means of the person will enable him to carry; for whatever is good at home, is none the less so on the road. the above will be ample for the journey; but should an additional quantity be taken, it can readily be disposed of in the mountains and at good prices, not for cash, but for robes, dressed skins, buckskin pants, moccasins, &c. it is also well for families to be provided with medicines. it is seldom however, that emigrants are sick; but sometimes eating too freely of fresh buffalo meat causes diarrhoea, and unless it be checked soon prostrates the individual, and leaves him a fit subject for disease. the time usually occupied in making the trip from missouri to oregon city is about five months; but with the aid of a person who has traveled the route with an emigrating company the trip can be performed in about four months. { } much injury is done to teams in racing them, endeavoring to pass each other. emigrants should make an every day business of traveling--resting upon the same ground two nights is not good policy, as the teams are likely to ramble too far. getting into large companies should be avoided, as they are necessarily compelled to move more tardily. from ten to twenty-five wagons is a sufficient number to travel with safety. the advance and rear companies should not be less than twenty; but between, it may be safe to go with six. the indians are very annoying on account of their thieving propensities, but if well watched, they would seldom put them into practice. persons should always avoid rambling far from camp unarmed, or in too small parties; indians will sometimes seek such opportunities to rob a man of what little effects he has about him; and if he attempts to get away from them with his property, they will sometimes shoot him. there are several points along the missouri where emigrants have been in the practice of fitting out. of these independence, st. joseph, and council bluffs, are the most noted. for those emigrating from ohio, indiana, illinois and northern missouri, iowa and michigan, i think st. joseph the best point; as by taking that route the crossing of several streams (which at the early season we travel are sometimes very high) is avoided. outfits may be had at this point, as readily as at any other along the river. work cattle can be bought in its vicinity for from twenty-five to thirty dollars per yoke, cows, horses, &c., equally cheap. emigrants should endeavor to arrive at st. joseph early in april, so as to be in readiness to take up the line of march by the middle of april. companies, however, have often started as late as the tenth of may; but in such cases they seldom arrive in oregon until after the rainy season commences in the cascade range of mountains. those residing in northern ohio, indiana, illinois, michigan, &c., who contemplate traveling by land to the place of rendezvous, should start in time to give their teams at least ten days rest. ox teams, after traveling four or five hundred miles in the states, at that season of the year, would be unfit to perform a journey across the mountains; but doubtless they might be exchanged for others, at or near the rendezvous. farmers would do well to take along a good supply of horse gears. mechanics should take such tools as are easily carried; as there are but few in the country, and those are held at exorbitant { } prices. every family should lay in a good supply of school books for their children. in case of an emergency, flour can be bought at fort hall, and fort bois, two trading posts of the hudson's bay company, at twenty dollars per hundred; and by forwarding word to spalding's mission, on the kooskooskee, they will pack out flour to fort bois, at ten dollars per hundred, and to the grand round at eight dollars, and will take in exchange dry goods, groceries, &c.; but at forts hall and bois, the company will take nothing in payment but cash or cattle. at dr. whitman's station, flour can be bought at five dollars per hundred, corn meal at four dollars, beef at six and seven cents per pound, potatoes, fifty cents per bushel. it is proper to observe that the flour at spalding's and whitman's stations will be unbolted. emigrants however, should be cautious, and lay in a sufficient supply to last them through. words used in the chinook jargon this is a tongue spoken by a few in each of the tribes residing in the middle and lower divisions of oregon. it is also used by the french, and nearly all the old settlers in the country. _aach_ _ekik_ _hu-e-hu_ sister fish-hook swap, exchange _aha_ _elitah_ _hol_ yes slave drag, or pull _alka_ _esick_ _ilips_ future, by and by paddle first _alta_ _esil_ _ith-lu-el_, or _ituel_ present, now corn meat, flesh _ala_ _geleech_ _i-yak_ i wonder grease quick, or hurry _ankote_ _halo_ _il-a-he_ past time none soil, dirt _chawko_ _hankachim_ _ichwet_ come handkerchief bear _chee_ _hous_ _is-kum_ new house take _chinkamin_ _how_ _in-a-ti_ iron, chain let us overdress _chuck_ _hoel-hoel_ _ith-lu-k-ma_ water mouse gamble _deob_ _high-you_ _i-wa_ satan quantity, many beaver _delie_ _high-you-k-wah_ _ips-wet_ dry ring hide _ekih_ _hul-u-e-ma_ _ik-ta_ brother-in-law strange, different what _kah_ _k-wathen_ _kilaps_ where bell turn over _k-u-ten_ _k-macks_ _klips_ horse dog upset _kaw-lo-ke-lo_ _klugh_ _ko-el_ goose split, or plough cold _ka-luck_ _ko-pet_ _kap-wah_ swan done, finished alike _k-puet_ _kop-po_ _kon-a-maxt_ needle older brother both _kot-suck_ _kow_ _kla-hum_ middle is to tie good-bye _kap-o_ _k-wat_ _kla-hi-you_ coat hit how do you do _ka-nim_ _kop-shut_ _kaw-a-nassim_ canoe broken always _ka-ta_ _ko_ _kla-ha-na_ why arrived out _kap-su-alla_ _kim-to_ _klim-in-wit_ theft, steal behind a falsehood _k-liten_ _kollo_ _krap-po_ lead fence toad _kaw-kaw_ _kutt_ _klose_ crow hard good _klat-a-wah_ _klimin_ _klas-ko_ go, walk fine them, those _kul-a-kulla_ _kle-il_ _ka-so_ fowl black rum _kum-tux_ _ka-was_ _ko-pa_ know, or understand afraid there _ke-a-wale_ _kom-suck_ _kit-lo_ love beads kettle _ka-wah-we_ _ko-ko-well_ _klone-ass_ all eel i do not understand _klow-e-wah_ _klaps_ _klop-sta_ slow find who _k-wallen_ _kow-ne-aw_ _klouch-man_ the ear how many female _kee-kool_ _la-sel_ _le-lu_ down saddle panther _lepo-lo_ _le-lo-im_ _le-pul_ pan sharp chickens _le-por-shet_ _le-poim_ _lecorset_ fork apple trunk _lehash_ _la-bush_ _laport_ axe mouth door _leg-win_ _le-da_ _le-pip_ saw teeth pipe _lima_ _le-ku_ _lo-lo_ the hand neck carry, or tote _lita_ _le-mora_ _leb-ya_ head wild old woman _le-pe-a_ _lashimney_ _la-lure_ feet chimney hoe _lo-ma-las_ _lemitten_ _la-cope_ molasses mitten white _lemon-to_ _la-ha-la_ _la-cre-me_ sheep feel yellow _lavest_ _le-le_ _mas-a-tro_ jacket, or vest a long time bad _la-ep_ _las-well_ _met-lite_ rope silk residence, sitting down, &c. _lep-lash_ _la-tem_ boards table _mal-ha-na_ as, in the river; or, _lep-wa_ _lep-o-lip_ push off the boat peas boil _lep-well_ _le-sit-well_ _man_ skillet stars male _la-win_ _le-mit-rem_ _mow-etch_ oats medicine deer _la-ram_ _le-shaw_ _mu-lack_ oar, for boats shoe elk _le-wash_ _le-sack_ _muse-a-muse_ snow sack, or bag cattle _lemonti_ _le-quim_ _me-si-ka_ mountain white bear plural of you _muck-a-muck_ _o-ep-can_ _papo_ provisions, eat basket father _musket_ _o-ep-in-pin_ _pil_ rifle, or gun skunk red _moon_ _o-e-lile_ _pe-chi_ month berries green _mo-kah_ _o-e-pick_ _pat-le_ buy both full _mim-a-loosheb_ _o-elk_ _poo_ die, or dead snake shoot _mal-hu-ale_ _o-lo_ _pe-teck_ back hungry the world _mi-ka_ _oel-hin_ _pilton_ you seal foolish _ni-ka_ _o-koke_ _pal-a-k-lo_ i, or me this, or that night _nan-ach_ _pi-yah_ _pes-hocks_ look, or see fire thickety _na-ha_ _pos-ton_ _pis-say-ukes_ mother americans french _new-ha_ _pee_ _quack-quack_ let and duck _now-it-k_ _pus_ _si-wash_ yes, certainly if indians _ne-si-ka_ _puss_ _swas_ we, us cat rain _nein_ _pish-hash_ _sah-lee_ name polecat high _o-es-km_ _pos-seas_ _stick_ caps blanket wood _oel-man_ _pot-latch_ _seck-um_ old give swim _o-pet-sa_ _pole-ally_ _si-yaw_ knife powder far _o-pes-wa_ _po-et_ _sap-a-lil_ wonder, astonishment boat flour _ow_ _pa-pa_ _su-ga_ brother paper sugar _sec-a-lukes_ _shot_ _to-lo_ pantaloons shot win, or gain _sap-a-pul_ _sup-ner_ _te-ma-has_ hat jump poison _sto-en_ _til-a-kum_ _ti-pee_ rock people an ornament _sil_ _tit-the-ko-ep_ _te-kah_ shirting cut want _sko-kum_ _tum-tum_ _till_ strong, stout the heart heavy, or tired _sec-pee_ _te-o-wit_ _toc-ta_ to miss leg doctor _see-ah-os-ti_ _tum-pe-lo_ _wah-wah_ face, or eyes back talk, conversation _sam-mon_ _tam-o-lack_ _wake_ fish barrel no, not _sto-gon_ _ti-ye_ _wap-a-to_ sturgeon master, or chief potato _son-dra_ _tes-um_ _win_ roan pretty wind _salt_ _to-lo-bus_ _wam_ salt wolf warm _shu-es_ _te-ko-ep_ _wetch_ shoes white more _sun_ _te-mo-lo_ _ya-ka_ sun, or day to-morrow him, she, it _silk-um_ _tu-lusk_ _yaw-wah_ half, or a part milk yonder _smo-ek_ _tip-so_ _yok-sa_ smoke grass hair _sul-luks_ _tum-tuk_ _ya-ha-la_ mad, angry water-falls name _six_ _ton-tle-ke_ _yult-cut_ friends yesterday long _sick_ _t-sit-still_ _you-till_ sick, or sore buttons, or tacks glad, proud _shut_ _tee-see_ shirt sweet chinook mode of computing numbers _iht_ _dilo-p-sin-a-maxt_ _makst_ _dilo-p-sow-skins_ _klone_ _dilo-p-k-wi-etst_ _lakst_ _tath-la-hun makst_ _k-win-nim_ _tath-la-hun klone_ _ta-hum_ _tath-la-hun lakst_ _sina-maxt_ _tath-la-hun k-win-ma_ _sow-skins_ _tath-la-hun ta-hum_ _k-wi-etst_ _tath-la-hun sin-a-maxt_ _tath-la-ham_ _tath-la-hun sow-skins_ _dilo-pe-iht_ _tath-la-hun k-wi-etst_ _dilo-p-maxt_ _tak-o-mo-nuxt_ _dilo-p-klone_ _tak-o-mo-maxt_ _dilo-p-lakst_ _tak-o-mo-nuxt klone_ _dilo-p-k-winnim_ _tak-o-mo-nuxt lakst_ _dilo-p-ta-hum_ _tak-o-mo-nuxt k-win-nim_ words used in the nez percÉ language _hama_ _talonot_ _ipalikt_ man ox clouds _aiat_ _talohin_ _wakit_ women bull rain _haswal_ _kulkulal_ _hiwakasha_ boy calf rains _pitin_ _shikam_ _maka_ girl horse snow _silu_ _tilipa_ _hatia_ eye fox wind _huku_ _tahspul_ _yakas_ hair beaver hot _ipsus_ _kelash_ _yamits_ hand otter cold _ahwa_ _hisamtucks_ _tiputput_ feet sun warm _simusimu_ _hayaksa_ _silakt_ black is hungry body _ilpilp_ _husus_ _katnanas_ red head salt _yosyos_ _kohalh_ _haya_ gray cow salmon-trout _shukuishukui_ _kaih_ _wahwahlam_ brown colt trout _kohatu_ _highwayahwasa_ _ilat_ short snows weak _kohat_ _haihai_ _wals_ long white knife _kalinin_ _ashtai_ _ilatama_ crooked fork is blind _tukuh_ _ashtai_ _lakailakai_ straight awl gentle _silpsilp_ _wawianas_ _shiau_ money axe skittish _taiitaii_ _kimstam_ _waiat_ flat near far _hamoihamoi_ _maksmaks_ _shakinkash_ soft yellow saw _sisyukas_ _shapikash_ _wishan_ sugar file poor _pishakas_ _takai_ _ilahui_ bitter blanket many _komain_ _sham_ _milas_ sickness coat few _hickomaisa_ _ahwa_ _animikinikai_ is sick foot below _aluin_ _silpsilp_ _tokmal_ is lame round hat _wakaas_ _tohon_ _huwialatus_ is well pantaloons weary _tinukin_ _ilapkit_ _ahat_ is dead shoe down _hiswesa_ _hikai_ _akamkinikai_ is cold kettle above _yahet_ _sham_ _koko_ neck shirt raven _nahso_ _laka_ _houtat_ salmon pine goose _tushti_ _isa_ _houtat_ up mother geese _atim_ _nisu_ _yaya_ arm child swan _matsayee_ _mamaias_ _yatin_ ear children crane _piama_ _hikai_ _paps_ brothers pail fir, (tree) _kelah_ _sishnim_ _kopkop_ sturgeon thorns cottonwood _wayu_ _sikstua_ _with_ leg friend alder _kupkup_ _lantuama_ _tahs_ back friends willows _timina_ _walatakai_ _tims_ heart pan cherry _sho_ _kuish_ _satahswakkus_ spoon risk corn _kahno_ _shushai_ _paks_ prairie-hen grass wheat _huhui_ _suyam_ _lapatat_ shoulder sucker potatoes _pisht_ _hashu_ _papa_ father eel a spring _walpilkash_ _shakantai_ _wawahp_ auger eagle spring (season) _katkat_ _sholoshah_ _tiam_ duck fish-hawk summer _askap_ _washwashno_ _shahnim_ brother hen fall _asmatan_ _koun_ _anim_ sisters dove winter _kinis_ _aa_ _pelush_ sister crow gooseberry _kikaya_ _timanawat_ _yaka_ serviceberry a writer black bear _kahas_ _sapaliknawat_ _kemo_ milk a labourer old man _katamnawakno_ _hania_ _tahat_ peas made young man _hahushwakus_ _hanishaka_ _otwai_ green have made old woman _inina_ _hanitatasha_ _timai_ house will make young woman _sanitwakus_ _hanikika_ _pishas_ parsnips made going father-in-law _initain_ _hanisna_ _pishas_ for a house made coming son-in-law _initpa_ _ipna hani aisha_ _siwako_ to the house make for him mother-in-law _initkinai_ _hanitasa_ _siwaka_ from the house go and make daughter-in-law _initrim_ _tash hama_ _inaya_ house only good man brother-in-law _ininm_ _tash timina_ _siks_ of a house good heart sister-in-law _initki_ _tash shikam_ _pimh_ by a house good horse step-father _initph_ _tiskan shikam_ _kaka_ to a house fat horse step-mother _haniai_ _hamtis shikam_ _lemakas_ not made fast horse deep _haniawat_ _kapskaps shikam_ _pakas_ a mechanic strong horse shallow _hanishimai_ _sininish shikam_ _mul_ not a mechanic lazy horse rapids _tamtainat_ _kapsis shikam_ _amshah_ preacher bad horse breaker _himtakewat_ _haihai shikam_ _watas_ teacher white horse land _tamiawat_ _hahas_ _pishwai_ trader gray bear stones _mahsham_ _hitkakokaiko_ _watoikash_ mountain he gallops it is fordable _kuhsin_ _hitksilsilsa_ _hatsu hiyaniksa_ hill he trots wood is floating _tahpam_ _himilmilisha_ _hiwalasa_ plain he paces the water runs _hantikam_ _hiwalakaiks_ _hahanwasam_ bough he walks the day is dawning _tepitepit_ _hishaulakiks_ _wako hikaaun_ smooth he runs it is daylight now _wilpwilp_ _titishka shikam_ _hitinatra hisamtuks_ round fat horses the sun is rising _pohol_ _maksmaks shikam_ _naks halaps_ valley sorrel horse one day _tasham_ _hihaihai shikam_ _hikulawitsa_ ridge white horse it is evening _iwatam_ _tamsilps shikam_ _kaaun_ lake spotted horse daylight _tikim_ _tilamselp shikam_ _hatsu hialika_ falls spotted horses the wood is lodged _hitkawisha_ _minsahsminko_ _kia waaiikshi_ he falls read we are crossing _kohat tawish_ _kokalh_ _ka apapinmiks_ long horn cattle let us sleep _wishan kokalk_ _hiwaliksa_ _ka apahips_ poor ox the river is rising let us eat _lilkailakikokal_ _hitaausa_ _ka apakus_ gentle cows the river is falling let us go _hiwasasha_ _hiwalasa_ _ka apasklin_ he rides the water runs let us go back nez percÉ mode of computing numbers _naks_ _putimpt wah wimatat_ _lapit_ _putimpt wah kuis_ _mitat_ _laptit_ _pilapt_ _laptit wah naks_ _pahat_ _mitaptit_ _wilaks_ _piloptit_ _winapt_ _pakaptit_ _wimatat_ _wilaksaptit_ _kuis_ _winaptit_ _putimpt_ _wimitaptit_ _putimpt wah naks_ _kuisaptit_ _putimpt wah lapit_ _putaptit_ _putimpt wah mitat_ _laposhus_ _putimpt wah pilapt_ _mitoshus_ _putimpt wah pahat_ _pelaposhus_ _putimpt wah wilaks_ _pakoshus_ _putimpt winapt_ table of distances from independence, missouri; and st. joseph, to oregon city, in oregon territory miles from independence to rendezvous " rendezvous to elm grove " elm grove to walkarusha " walkarusha to crossing of kansas river " kansas to crossing of turkey creek " turkey creek to little vermilion " little vermilion to branch of same " to big vermilion, with intermediate camps " vermilion to lee's branch " lee's branch to big blue " big blue to the junction with st. joseph's trail the distance from st. joseph, missouri, to the independence trail, striking it ten miles west of blue river, is about one hundred miles. good camps can be had from eight to fifteen miles apart. from forks of road as above, to big sandy, striking it near its junction with the republican fork of blue river, with intermediate camps " sandy to republican fork of blue river " up republican fork, with good camps " republican fork to big platte " up big platte to the crossing of south fork camps can be had at suitable distances, with wood for fuel upon the islands. from lower to upper crossings of south fork there is a road on each side of the river, and but little choice in them. from south to north fork, at ash hollow " ash hollow to opposite solitary tower, on little creek " little creek to opposite chimney rock " chimney rock to where the road leaves the river " thence to scott's bluffs (good spring) " scott's bluffs to horse creek " horse creek to fort laramie " laramie to dry branch and big spring " to bitter cottonwood to willow branch " horse shoe creek " river thence to where the road leaves the river to big timber creek " marble creek " mike's-head creek " the river, crossing several streams " deer creek thence to crossing of north fork of platte from crossing of platte to spring thence to mineral springs (bad camp) " willow spring (good camp) " independence rock on sweet water " devil's gate up sweet water to south pass (good camps) over the dividing ridge to pacific spring, the waters of which run into green river here, hail oregon! from spring to little sandy here the road forks, the southern trail going by way of bridger's old fort, and thence to bear river. the northern (which is two and a half days less driving) strikes green river about forty miles above the southern trail; i will give the distance on both routes. the northern route, from little sandy to big sandy from big sandy to green river (no water and but little grass between.) " thence to bear river, (with good camps,) on the southern route:-- from little sandy to big sandy down big sandy to green river cross green river and down from green river to black's fork up black's fork to bridger's old fort from old fort to little muddy (poor camp) " thence to big muddy (poor camp) up big muddy to the dividing ridge (good camp near head of creek) over dividing ridge to spring from spring to camp on bear river " thence to where the northern trail comes in to smith's fork three miles, to narrows four miles, and thence to crossing of bear river three miles here the road forks; the nearest is to follow up the creek two miles, cross and then go over the ridge five miles to foot of big hill, where the roads again unite the other road crosses the river, follows up the bottom about ten miles, re-crosses and is then about seven miles to junction. from foot of big hill, to top of ridge is about " thence to big timber on bear river here is a company of american traders and trappers from big timber to soda springs " spring to soda pool seven miles, to spring branch three " spring to running branch " thence to foot of hill " foot of hill over dividing ridge and down to camp " thence to lewis's river bottom at springs and to fort hall " fort hall to the crossing of portneth " portneth to american falls " american falls to levey creek " thence to cassia creek, (here the california trail turns off) " cassia to big marsh " marsh to river " river to goose creek four miles, seven miles to river, and twelve miles to dry branch, (water in pools) to rocky creek to crossing of rocky creek, eight miles, down to where the road leaves the bluff of creek, seven " salmon falls creek from thence to salmon falls " falls to first crossing of lewis river " crossing to bois river is about camps can be had from six to fifteen miles down bois river to fort bois (good camps) cross lewis river and thence to malheur " malheur to birch creek, about " birch creek to river three miles, and thence five miles to burnt river up burnt river about (good camps) from where the road leaves burnt river, to the lone pine stump in the bottom of powder river, (the last thirteen miles no water) to the crossing of powder river to grand round across the southern end of grand round up big hill and on to grand round river over the blue mountains to lee's encampment to umatillo river down umatillo river " columbia river to john day's river from thence to falls river and thence to the dalles of the columbia from the dalles to oregon city, by way of wagon road south of mount hood about upon reaching the columbia, emigrants should have persons in advance to select suitable places for camp ground: as the country along the river is extremely barren, and the grazing limited to small patches. appendix letter of the rev. h. h. spalding to joel palmer (_referred to on page _ [_our page _]) nez percÉ mission, clear water river, _oregon territory_, april , . to joel palmer esq. of indiana. my dear sir:--agreeably to your request i most cheerfully give you my views concerning the oregon territory, its extent, its most desirable climate, fertility of soil, rivers and mountains, seas and bays, and its proximity to one of the most extensive markets opening upon the world. the oregon territory is usually divided into three great divisions, the lower, middle, and upper regions. the upper includes the rocky mountains, with the head waters of most of the rivers running west and east, north and south, and extends west to the blue and spokan ranges of mountains. the lower includes the belt of country bounded on the west by the pacific, and on the east by the nesqually, cascade, and california mountains. the middle region lies between the two, and embraces probably far the greatest extent of country, and is in some respects the most desirable for settlers. the number of rainy days, during the winter season, in the lower country, is thought to be about eighty-five one-hundredths; while the number of rainy days during the same season in the upper (or middle) country, is about fifteen one-hundredths. { } there is but little more snow during the winter season in the middle than in the lower region of the columbia river, or upon the plains. of course the depth of snow upon the mountains, depends upon their height. the lower country is subject to inundations, to a greater or less extent, from the columbia river, which gathering into standing pools, with the great amount of vegetable decay consequent upon low prairie countries, produces to some extent unhealthy fogs during the summer season. this, however, is greatly moderated by the sea breezes from the pacific. the middle region is entirely free from these evils, and has probably one of the most pacific, healthy, and every way most desirable climates in the world. this, with its extensive prairies, covered with a superior quality of grass tuft, or bunch grass, which springs fresh twice a year, and spotted and streaked everywhere with springs and streams of the purest, sweetest water, renders it admirably adapted to the herding system. the lower country will ever have greatly the advantage in its proximity to market, its extensive sea coast, and from the fact that it contains one of the largest and best harbors in the world, viz. puget's sound, running far inland, the mouth of which is protected by vancouver's island, easy of access at all seasons and under all winds. but to go into detail. myself and wife were appointed missionaries by the american board of commissioners for foreign missions, and destined to this field, and with our worthy associates, dr. whitman, and lady, arrived in this country in the fall of . the doctor settled among the cayuses near fort wallawalla, and myself at this place, where we have ever since continued to dwell. our duties have called us to travel more or less every year to visit the distant bands and tribes, as also to pack our supplies. i have traversed this middle region in seventeen different routes, of from to miles. over many of the routes i have passed probably in every month in the year, have marked the progress of vegetation from its earliest shooting forth; the effects of this climate { } upon the animal constitution; the rapidity with which exhausted poor animals regain their flesh and activity, when turned upon the plains; and have kept tables under some of these heads, as also a meteorological table for several years. let me here observe that my views of the country have been materially changed by a more accurate acquaintance with its true nature. i once thought the valleys only susceptible of habitation; considering the plains too dry for cultivation. but i am now prepared to say this is not the case. the plains suffer far less from drought than the valleys, on account of the reflection of heat from the surrounding hills. the country, however, is nowhere peculiarly subject to drought, as was once thought. my place is one of the deepest valleys, and consequently the most exposed to the reflection from the high bluffs around, which rise from two to three thousand feet; but my farm, though prepared for irrigation, has remained without it for the last four years. i find the ground becomes more moist by cultivation. three years ago i raised six hundred bushels of shelled corn from six acres, and good crops of wheat on the same piece the two following years, without irrigation. eight years ago i raised bushels of potatoes from one acre and a half; measuring some of the bags in which they were brought to the cellars, and so judging of the whole amount. i gave every eleventh bag for digging and fetching, and kept a strict account of what every person brought, so that i was able to make a pretty accurate estimate of the whole amount. my potatoes and corn are always planted in drills. every kind of grain or vegetable which i have tried or seen tried in this upper country, grows well. wheat is sown in the fall, and harvested in june at this place; at dr. whitman's in july, being a more open country. corn is planted in april and ripens in july; peas the same. extent of country the southern boundary of oregon territory is the d degree of north latitude. the northern boundary is not yet settled;[ ] { } both england and the united states claim north of the columbia river to latitude °. but this vast fertile region, well timbered upon the mountains and river sources, and well watered, besides having the fine harbor above named, puget's sound, must ever remain the most important portion of oregon, especially on account of this harbor, which will naturally control these seas, and consequently the country. should the british flag finally exclusively wave over its placid waters, it will be to the rest of oregon as quebec is to canada, or gibraltar to the mediterranean. vancouver's island is doubtless another reason why great britain wishes to make the columbia river her northern boundary. the line of ° passes a little north of the southern half of the island. the whole island contains a territory considerably larger than england and scotland, produces every kind of grain and vegetable well, and has a climate very similar to our middle and southern states. whatever nation possesses this island, or the south portion of it, with its neighboring harbor, puget's sound, possesses nearly all of a national consideration which pertains to oregon, and will consequently control it. but if this island, or this portion of it, with this harbor, add their ever controlling influence to the undivided interests of oregon, this young colony, but yesterday begun, and whose country and existence were but yesterday disputed, will at no distant day, under the softening, life-giving influence of civilization and our holy religion, take its place among the wealthiest, happiest, and best nations of the earth. the country of oregon, should it extend to ° north latitude, is probably capable of sustaining as great a population as two-thirds of the territory of the states, and with far less hard labor. climate this is decidedly the inviting characteristic of the country, and is certainly a great inducement for all persons of delicate health. i speak of the middle region. free from marshes or standing water and vegetable decay, the air is remarkably pure and serene; summers rather warm, especially in the valleys; the mercury ranges, for some time during the hot season, from to degrees above zero. nights cool, but no fog or dew, except in a few places. twice since i have been in the country frost has injured vines, leaves, &c., first of may, but never in the fall till late; often my melon vines, &c., are green till the first of december. four times since i have been here the mercury has fallen below zero; once to degrees. but usually it ranges above in the morning, and above through the day. during six of the ten winters i have passed in the country, the rivers have not been frozen. the columbia river has been frozen nearly to its mouth, twice since i have been in the country. the snow sometimes falls a foot deep--i should judge about once in five years. about half of my winters here there has been no snow in the valleys, and but little on the plains, except to whiten the earth for a short time. it disappears in a few hours, especially on the south face of the bluffs and hills. last year i made a collection of flowers and plants, which i purpose to send to washington. i gathered two flowers in january, on the d and th,[ ] and during the month of february some showed themselves, and by the first of march the grass on the south faces of the bluffs was inches high. this year the season was about three weeks later, judging by the appearance of flowers. i know of no disease that can be said to be peculiar to the country. the country is peculiarly free from sudden changes of weather, or violent storms. persons who have wintered here from the south, tell me the winters are as mild as the winters { } in the northern parts of north and south carolina, and with less sudden changes. advantages for the herding system the country is one extensive prairie, except the mountains, which are covered with several species of pine, cedar, and fir. the prairies are rolling, and with the exception of a narrow belt of sand and sedge upon the columbia, and portions of the snake river, are everywhere covered with the bunch grass, which, from observation, i judge to be a richer, heartier food for animals than corn, oats, and the best pastures of the states. it is a fine, solid stalk, growing two feet high, with fine leaves, holds its freshness through the winter; i mean the old stalk, which mingled with the young growth, that usually springs fresh in the fall, forms a food for animals through the winter, preferable to the best hay. horses and oxen perform labor at all seasons upon this grass simply, without the aid of grain; which i now think disposes the animal system to various diseases. when i pack, i usually travel from thirty-five to forty miles a day, each horse carrying two hundred pounds--rest an hour at noon, without taking down the packs; camp while the sun is yet two hours high; hobble the horses and drive them up in the morning at sunrise. i find that horses will endure such labor for twenty-five or thirty days, resting of course on the sabbath, upon this grass, without injuring them. their wind is evidently better than that of horses fed on grain and hay. i have rode from dr. whitman's station to this, miles, in nineteen hours, starting at o'clock in the night, and driving a spare horse for change; but this was no advantage, for i find it is more fatiguing to a horse to be drove than to be rode. you doubtless recollect the man who overtook us on the head of alapausawi, thursday morning. he had left the dalles or long narrows on the columbia on tuesday morning, slept a short time tuesday night below the umatillo, passed by dr. whitman's station, and slept wednesday night on the tukanan, { } a distance from the dalles of two hundred and forty miles; and the day he passed us he traveled fifty-five miles more.[ ] he rode one horse and drove another for change. you will probably even recollect those horses, as they left us upon the round gallop. a man went from this place, starting late, to wallawalla, and returned on the third day, sun two hours high, making the journey in about two days and a half. the whole distance traveled was two hundred and fifty miles, and but one horse was used. none of these horses were injured. cattle, sheep, horses, and hogs feed out through the winter, and continue fat. we very often kill our beef in march, and always have the very best of meat. often an ox from the plains, killed in march, yields over one hundred and fifty pounds of tallow. you have seen two specimens, one killed at dr. whitman's, and one at this place. sheep need the care of a shepherd through the winter, to protect the lambs from the prairie wolves. a band of mares should have a good stud that will herd them and protect the colts from the large wolves. some thirty different kinds of roots grow abundantly upon the plains and bluffs, which, with the grass, furnish the best of food for hogs, and they are always good pork. the south faces of the extensive bluffs and hills are always free from snow, and, cut up into ten thousand little ravines, form the most desirable retreat imaginable for sheep during the winter. here they have the best of fresh grass, and the young lambs, coming regularly twice a year, are protected from the winds and enlivened by the warm sun. we have a flock of sheep belonging to the mission, received from the islands eight years ago; there are now about one hundred and fifty. not one has yet died from disease, a thing of such frequent occurrence in the states. it must certainly become a great wool growing country. i cannot but contrast the time, labor, and expense requisite to look after herds in this country, with that required in the states, especially in the northern and middle states, where two-thirds of every man's time, labor, and money is expended { } on his animals, in preparing and fencing pasture grounds and meadows, building barns, sheds, stables, and granaries, cutting and securing hay and grains, and feeding and looking to animals through winter. in this country all this is superceded by nature's own bountiful hand. in this country a single shepherd with his horse and dogs can protect and look after five thousand sheep.[ ] a man with his horse and perhaps a dog can easily attend to two thousand head of cattle and horses, without spending a dollar for barns, grain, or hay. consider the vast amount of labor and expense such a number of animals would require in the states. were i to select for my friends a location for a healthy happy life, and speedy wealth, it would be this country. timber is the great desideratum. but the country of which i am particularly speaking, extending every way perhaps four hundred miles, is everywhere surrounded by low mountains, which are thickly timbered, besides two or three small ridges passing through it; also the rivers columbia, snake, spokan, paluse, clear water, yankiman, okanakan, salmon, wailua, tukanan, wallawalla, umatillo, john day's and river de shutes; and down most of these timber or lumber can be rafted in any quantities. so that but a very small portion of the country will be over ten or fifteen miles from timber; most of it in the immediate vicinity of timber. the numerous small streams which occur every five or six miles, affording most desirable locations for settlements, contain some cotton wood, alder and thorn. but timber is soon grown from sprouts. the streams everywhere run over a stony bottom, while the soil is entirely free from stone. streams are rapid, affording the best of mill privileges. market, seas and bays the western shores of oregon are washed by the placid { } waters of the pacific, which bring the , , of china, the many millions of the vast indies and of australasia, and lay them at our doors with opening hands to receive our produce; which, with the numerous whale ships that literally whiten the northern pacific, calling not only for provisions, but harbors to winter in, must ever afford one of the most extensive markets in the world for all kinds of produce, and one concerning which there need be but little fear that it will ever be overstocked. a market compared with which, that offered by western europe to the eastern section of the united states, will become as a drop to the bucket. the united states' commercial agent at oahu, sandwich islands, is desirous to make a contract for a certain amount of provisions to be supplied to american shipping every year at oregon city; but as yet the supplies of the country over and above the home consumption, are not sufficient to warrant a dependence of our whale shipping upon the country. in fact for many years, while the united states continue to pour their inhabitants by tens of thousands, every year, into this young republic, the home market must continue in competition with the foreign. but the day is not distant when this country, settled by an industrious, virtuous, sabbath-loving people, governed by wholesome laws, blessed with schools, and the institutions of our holy religion, will hold out abundant encouragements for the numerous whale and merchant ships of the pacific to leave their heavy lading of three years' supply of provisions at home, and depend upon the market in the immediate vicinity of their fishing grounds. others following in their track, learning of this new world, and finding out our ample harbors, soon this little obscure point upon the map of the world will become a second north american republic--her commerce whitening every sea, and her crowded ports fanned by the flags of every nation. from this upper country, a distance of three hundred or four hundred miles, droves of cattle and sheep can be driven to the lower portions of the columbia river, { } with far less expense and labor than they are driven the same distances in the states, always being in the midst of grass upon which they may feed every night without charge. the principal harbors are puget's sound, mouths of columbia, frazier's, shahales, umpqua, rose and clamet rivers.[ ] doubtless others will be discovered, as the country becomes more known. a dangerous bar extends nearly across the mouth of the columbia, leaving but a narrow obscure channel, difficult of access or egress, except with favorable winds. vessels sometimes find it impossible to enter the river by reason of contrary winds; and sometimes are detained in the river two or three months, there not being sea room enough to go out against a head wind. this difficulty could be greatly obviated, and perhaps removed, by a pilot boat. concerning the other rivers i have no certain knowledge, but have been informed that some of them are navigable for vessels from forty to sixty miles, and afford convenient harbors. puget's sound, as before observed, is one of the safest and best harbors in the world, it can be entered or left under any winds and at any season of the year. the scenery around is said to be most enchanting. two lakes near sending off a small stream of pure water. a considerable river runs into the sound, making a fall of some twenty-five feet just as it plunges into the sea, affording the opportunity of building mills upon the wharfs. but very little has been known by americans concerning the extensive country north of the columbia, till last winter. i have several times been told by british subjects that the countries bordering on frazier's river and puget's sound were too sterile for cultivation, and but poor crops could be raised on the cowlitz. whereas, the exploring party who left oregon city, last winter, report that they found a very extensive country north of the columbia river, of apparently good soil, well timbered with pine and oak, and well watered with the following rivers and their tributaries, viz.: the cowlitz, emptying into the columbia river from the north; the shahales, { } running into a small bay north of the columbia river; the nesqualla, rising near the source of the cowlitz, and running north into puget's sound; frazier's river north of this, and several smaller ones not named. on the cowlitz, nesqualla and frazier's rivers, the hudson bay company have large establishments, and are producing vast quantities of wool, beef, pork, and all kinds of grain, for british whale ships which frequent the harbors. besides these establishments, they have extensive farms and herds at vancouver, in the willamette valley and colvile, and trading posts on vancouver island, and at the mouth of the columbia river, umpqua, vancouver, wallawalla, okanakan and colvile, boise and fort hall, with very many at the north. some of these are strongly fortified, and are being well supplied with cannon and other munitions of war, by almost every ship that arrives. so i have been informed by persons from these ships. with the extensive valley watered by the willamette and its numerous tributaries, you are better acquainted than myself, as i have never visited that country. i cannot, however, deny myself the pleasure of expressing my opinion of the country, formed from information derived yearly from scores of persons who have dwelt long in, or traveled more or less through its extensive territory, at all seasons of the year. on the west the great valley is separated from the pacific by a low range of well timbered mountains, that give rise to numerous streams and small rivers, some of which are lately found sufficient to admit vessels. on the east it is bounded by the cascade or president's range, everywhere abounding with white pine and cedar. the willamette river rises in latitude ° and runs north and empties itself into the columbia river miles above its mouth. the falls of the willamette are about thirty miles above its mouth, and must ever add a vast interest to the country. the power for mills and machinery that may be erected on each side of the river, and on the island in the middle of the falls, is adequate for almost any conceivable demand. { } oregon city, situated at the falls on the east side of the river, contains over five hundred souls, about eighty houses, viz.: two churches, two blacksmith shops, one cooper shop, two cabinet shops, four tailor shops, one hatter's shop, one tannery, three shoe shops, two silver smiths, four stores, two taverns, two flouring and two saw mills, and a lathe machine. directly opposite, on the west side, are two towns laid out, and buildings are going up. the face of the country in the willamette valley is rolling, very equally divided into prairie and timbered countries, with frequent oak openings. wheat produces well; corn, potatoes, &c. produce well in some places, and probably would everywhere do well with good cultivation; soil everywhere considered of a superior quality. less snow during the winter season than in the middle district, but much more rain, with fogs, on the low lands during the summer, which render the country less healthy than this middle region; but still the country cannot be considered an unhealthy country. the face of the country is everywhere covered with bunch grass,[ ] and animals feed out through the winter, as in the middle region. the rivers umpqua, rose and clamet, which empty into the pacific, south of the columbia, are said to water extensive fertile countries; but as yet very little is known of these regions. ships come up the willamette river within a few miles of oregon city. concerning the road for wagons commenced south of mount hood, and which is to be completed this summer, to be in readiness for the next emigration, you are better acquainted than myself. i am happy to recommend to future emigrants your directions and advice as to the best mode of traveling; number of wagons desirable to travel together; quantity of provisions required for each person; best route; distance to be traveled each day. you will also be able to give the prices for which the hudson bay company sells flour, at forts hall { } and bois, and for which it is brought from the willamette to the dalles and sold. you are acquainted with the fact that the mission station at this place, and at waiilatpu, have been in the habit of furnishing provisions to immigrants. we are willing to do so as long as there are no other sources of supplies in this vicinity, and therefore seems a duty. but our object in the country is to civilize and christianize the indian tribes among whom we are located. we are stewards of the property of others. we receive no salaries, but simply our living and clothing. we therefore feel it to be our duty to endeavour to make the receipts for provisions sold, net their expenses. for this end, mr. gilbert, a gentleman from new york, has taken charge of the secular affairs of this station, and will furnish provisions to immigrants on the most reasonable terms. he will give you their probable prices, and the names of such things as will be taken in exchange. you have seen the quantity and quality of flour and beef at this place, as also at waiilatpu. yours very sincerely, h. h. spalding. p. s. during last season, commencing d of january, i collected and preserved over two thousand different species of flowers, plants and grasses,[ ] many of which i think are rare, but i am no botanist. organic laws of oregon (with amendments) _the legislative committee recommend that the following laws be adopted._ preamble we, the people of oregon territory, for purposes of mutual protection, and to secure peace and prosperity among ourselves, agree to adopt the following laws and regulations, until such time as the united states of america extend their jurisdiction over us. be it enacted, therefore, by the free citizens of oregon territory, that the said territory, for purposes of temporary government, be divided into not less than three nor more than five districts, subject to be extended to a greater number when an increase of population shall require. for the purpose of fixing the principles of civil and religious liberty, as the basis of all laws and constitutions of government that may hereafter be adopted-- _be it enacted_, that the following articles be considered articles of compact among the free citizens of this territory: article i § . no person demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments. { } § . the inhabitants of said territory shall always be entitled to the benefits of the writ of habeas corpus and trial by jury, of a proportionate representation of the people in the legislature, and of judicial proceedings, according to the course of common law. all persons shall be bailable, unless for capital offences, where the proof shall be evident or the presumption great. all fines shall be moderate, and no cruel or unusual punishments shall be inflicted. no man shall be deprived of his liberty but by the judgment of his peers, or the law of the land; and should the public exigencies make it necessary for the common preservation to take any person's property, or to demand his particular services, full compensation shall be made for the same; and in the just preservation of rights and property, it is understood and declared that no law ought ever to be made, or have force in said territory, that shall, in any manner whatever, interfere with or affect private contracts or engagements, "bona fide" and without fraud previously formed. § . religion, morality and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged. the utmost good faith shall always be observed towards the indians; their lands and property shall never be taken from them without their consent; and in their property, rights or liberty they shall never be invaded or disturbed, unless in just and lawful wars, authorised by the representatives of the people; but laws founded in justice and humanity shall, from time to time, be made for preventing injustice being done to them, and for preserving peace and friendship with them. § . there shall be no slavery nor involuntary servitude in said territory otherwise than for the punishment of crimes, whereof the party shall have been duly convicted. § . no person shall be deprived of the right of bearing arms in his own defence; no unreasonable searches or seizures shall be granted; the freedom of the press shall not be restrained; { } no person shall be twice tried for the same offence; nor the people deprived of the right of peaceably assembling and discussing any matter they may think proper; nor shall the right of petition ever be denied. § . the powers of the government shall be divided into three distinct departments--the legislative, executive, and judicial; and no person, belonging to one of these departments, shall exercise any of the powers properly belonging to either of the others, except in cases herein directed or permitted. article ii § . the legislative power shall be vested in a house of representatives, which shall consist of not less than thirteen nor more than sixty-one members, whose numbers shall not be increased more than five at any one session, to be elected by the qualified electors at the annual election, giving to each district a representation in proportion to its population, (excluding indians,) and the said members shall reside in the district for which they shall be chosen; and in case of vacancy by death, resignation or otherwise, the executive shall issue his writ to the district where such vacancy has occurred, and cause a new election to be held, giving sufficient notice at least ten days previously, of the time and place of holding said election. § . the house of representatives, when assembled, shall choose a speaker and its other officers, be judges of the qualifications and election of its members, and sit upon its own adjournment from day to day. two-thirds of the house shall constitute a quorum to transact business, but a smaller number may adjourn from day to day, and may be authorised by law to compel the attendance of absent members. § . the house may determine the rules of its proceedings, punish its members for disorderly behavior, and with the concurrence of two-thirds, expel a member, but not a second time for the same offence; and shall have all powers necessary for { } a legislature of a temporary government, not in contravention with the restrictions imposed in this organic law. § . the house of representatives shall, from time to time, fix the salaries of the different officers appointed or elected under this compact, provided the pay of no officer shall be altered during the term of his service; nor shall the pay of the house be increased by any law taking effect during the session at which such alteration is made. § . the house of representatives shall have the sole power of impeaching; three-fourths of all the members must concur in an impeachment. the governor and all civil officers under these articles of compact, shall be liable to impeachment for treason, bribery, or any high crime or misdemeanor in office. judgment in such cases shall not extend further than removal from office, and disqualification to hold any office of honor, trust or profit under this compact; but the party convicted may be dealt with according to law. § . the house of representatives shall have power to lay out the territory into suitable districts, and apportion the representation in their own body. they shall have power to pass laws for raising a revenue either by the levying and collecting of taxes, or the imposing license on merchandize, ferries, or other objects--to open roads and canals, either by the levying a road tax, or the chartering of companies; to regulate the intercourse of the people with the indian tribes; to establish post offices and post roads; to declare war, suppress insurrection or repel invasion; to provide for the organizing, arming, and disciplining the militia, and for calling forth the militia to execute the laws of oregon; to pass laws to regulate the introduction, manufacture, or sale of ardent spirits; to regulate the currency and internal police of the country; to create inferior offices necessary and not provided for by these articles of compact; and generally to pass such laws to promote the general welfare of the people of oregon, not contrary to the spirit of this instrument; and all powers not hereby expressly delegated, { } remain with the people. the house of representatives shall convene annually on the first tuesday in december, at such place as may be provided by law, and shall, upon their first meeting after the adoption of this instrument of compact, proceed to elect and define the duties of a secretary, recorder, treasurer, auditor, marshal, or other officers necessary to carry into effect the provisions of this compact. § . the executive power shall be vested in one person, elected by the qualified voters at the annual election, who shall have power to fill vacancies; to remit fines and forfeitures; to grant pardons and reprieves for offences against the laws of the territory; to call out the military force of the country to repel invasion or suppress insurrection; to take care that the laws are faithfully executed, and to recommend such laws as he may consider necessary to the representatives of the people for their action. every bill which shall have been passed by the house of representatives, shall, before it becomes a law, be presented to the governor for his approbation. if he approve, he shall sign it; if not, he shall return it, with his objections, to the house, and the house shall cause the objections to be entered at large on its journals, and shall proceed to reconsider the bill; if, after such reconsideration, a majority of two-thirds of the house shall agree to pass the same, it shall become a law. in such cases the vote shall be taken by ayes and noes, and be entered upon the journal. if any bill shall not be returned by the governor to the house of representatives within three days (sundays excepted) after it shall have been presented to him, the same shall become a law in like manner as if the governor had signed it, unless the house of representatives, by its adjournment, shall prevent its return; in which case it shall not become a law. the governor shall continue in office two years, and until his successor is duly elected and qualified; and in case of the office becoming vacant by death, resignation, or otherwise, the secretary shall exercise the duties of the office until the vacancy shall be filled by { } election. the governor shall receive the sum of dollars per annum, as full compensation for his services, which sum may be increased or diminished at any time by law, provided the salary of no governor shall be altered during his term of service. the governor shall have power to convene the legislature on extraordinary occasions. § . the judicial power shall be vested in a supreme court, and such inferior courts of law, equity, and arbitration, as may, by law from time to time be established. the supreme court shall consist of one judge, who shall be elected by the house of representatives, and hold his office for four years, and until his successor is duly elected and qualified. the supreme court, except in cases otherwise directed by this compact, shall have appellate jurisdiction only, which shall be co-extensive with this territory, and shall hold two sessions annually, beginning on the first mondays in june and september, and at such places as by law may be directed. the supreme court shall have a general superintending control over all inferior courts of law. it shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, and other original remedial writs, and hear and determine the same. the supreme court shall have power to decide upon and annul any laws contrary to the provisions of these articles of compact, and whenever called upon by the house of representatives, the supreme judge shall give his opinion touching the validity of any pending measure. the house of representatives may, hereafter, provide by law for the supreme court having original jurisdiction in criminal cases. § . all officers under this compact, shall take an oath, as follows, to wit: i do solemnly swear, that i will support the organic laws of the provisional government of oregon, so far as said organic laws are consistent with my duties as a citizen of the united states, or a subject of great britain,[ ] and faithfully demean myself in office. so help me god. § . every free male descendant of a white man, inhabitant { } of this territory, of the age of twenty-one years and upwards, who shall have been an inhabitant of this territory at the time of its organization, shall be entitled to vote at the election of officers, civil and military, and be eligible to any office in the territory, provided, that all persons of the description entitled to vote by the provisions of this section, who shall emigrate to this territory after its organization, shall be entitled to the rights of citizens after having resided six months in the territory. § . the election for all civil officers, provided for by this compact, shall be held the first monday in june annually. article iii--land law § . any person now holding, or hereafter wishing to establish a claim to land in this territory, shall designate the extent of his claim by natural boundaries, or by marks at the corners and upon the lines of such claim, and have the extent and boundaries of said claim recorded in the office of the territorial recorder, in a book to be kept by him for that purpose, within twenty days from the time of making said claim: provided, that those who shall be already in possession of land, shall be allowed twelve months from the passage of this act to file a description of his claim in the recorder's office: and provided further, that the said claimant shall state in his record, the size, shape, and locality of such claim, and give the names of the adjoining claimants; and the recorder may require the applicant for such record to be made to answer, on his oath, touching the facts. § . all claimants shall, within six months from the time of recording their claims, make permanent improvements upon the same, by building or enclosing, and also become an occupant upon said claim within one year from the date of such record, or in case not occupied, the person holding said claim shall pay into the treasury the sum of five dollars annually, and in case of failure to occupy, or on failure of payment of { } the sum above stated, the claim shall be considered as abandoned: provided, that no non-resident of this territory shall have the benefit of this law: and, provided further, that any resident of this territory, absent on private business for two years, may hold his claim by paying five dollars annually to the treasury. § . no individual shall be allowed to hold a claim of more than one square mile, or six hundred and forty acres, in a square or oblong form, according to the natural situation of the premises. nor shall any individual be allowed to hold more than one claim at the same time. any person complying with the provisions of these ordinances, shall be entitled to the same recourse against trespass as in other cases by law provided. § . partnerships of two or more persons shall be allowed to take up a tract of land not exceeding six hundred and forty acres to each person in said partnership, subject to all the provisions of the law; and whenever such partnership is dissolved, the members shall each record the particular parts of said tract as may be allotted to him: provided that no member of said partnership shall hold a separate claim at the time of the existence of said partnership. § . the boundary lines of all claims shall hereafter conform, as near as may be, to the cardinal points. § . the officers elected at the general election, held on the first tuesday in june, , shall be the officers to act under this organic law, and their official acts, so far as they are in accordance with this compact, are hereby declared valid and legal. § . amendments to this instrument may be proposed by the house of representatives, two-thirds of the members concurring therein; which amendments shall be made public in all parts of oregon, and be read at the polls at the next succeeding general election, and a concurrence of two-thirds of all { } the members elected at said election, may pass said amendments, and they shall become a part of this compact. * * * * * certificate i, john e. long,[ ] secretary of oregon territory, do hereby certify, that the foregoing is a true and correct copy of the original law, as passed by the representatives of the people of oregon, on the fifth day of july, a. d. , and submitted to the people on the twenty-sixth day of the same month, and by them adopted and now on file in my office. j. e. long, _secretary_. n. b. at the december session, , of the house of representatives, two-thirds of the members concurring therein, the following amendments to the organic law were proposed, to wit: strike out in the th section of said law, the words "or more." also, to amend the land law so as to "permit claimants to hold six hundred acres in the prairie, and forty acres in the timber, though said tracts do not join." ardent spirits an act to prevent the introduction, sale, and distillation of ardent spirits in oregon. § . _be it enacted by the house of representatives of oregon territory_, that if any person shall hereafter import or introduce any ardent spirits into oregon, with intent to sell, barter, give, or trade the same, and shall offer the same for sale, trade, barter, or gift, he shall be fined the sum of fifty dollars for each and every such offence, which may be recovered by indictment, or by trial before a justice of the peace, without the form of pleading. § . that if any person shall hereafter sell, barter, give, or trade any ardent spirits of any kind whatever, directly or indirectly, to any person within oregon, he shall forfeit and pay { } the sum of twenty dollars for each and every such sale, trade, barter, or gift, to be recovered by indictment in the county court, or before a justice of the peace, without the form of pleading. § . that if any person shall hereafter establish or carry on any manufactory or distillery of ardent spirits in oregon, he shall be subject to be indicted before the county court, as for a nuisance, and if convicted, he shall be fined the sum of one hundred dollars; and the court shall issue an order to the sheriff, directing him to seize and destroy the distilling apparatus, which order the sheriff shall execute. § . whenever it shall come to the knowledge of any officer of this government, or any private citizen, that any kind of spirituous liquors are being distilled or manufactured in oregon, they are hereby authorised and required to proceed to the place where such illicit manufacture is known to exist, and seize the distilling apparatus, and deliver the same to the nearest district judge or justice of the peace, whose duty it shall be immediately to issue his warrant, and cause the house and premises of the person against whom such warrant shall be issued to be further searched; and in case any kind of spirituous liquors are found in or about said premises, or any implements or apparatus that have the appearance of having been used or constructed for the purpose of manufacturing any kind of spirituous liquors, the officer who shall have been duly authorised to execute said warrant, shall seize all such apparatus, implements, and spirituous liquors, and deliver the same to the judge or justice of the peace who issued the said warrant; said officer shall also arrest the person or persons in or about whose premises such apparatus, implements, or spirituous liquors are found, and conduct him or them to said judge or justice of the peace, whose duty it shall be to proceed against such criminal or criminals, and dispose of the articles seized, according to law. § . all fines and penalties imposed under this act, shall go, { } one-half to the informant and witnesses, and the other half to the officers engaged in arresting and trying the criminal or criminals; and it shall be the duty of all officers into whose hands such fines and penalties may come, to pay over as directed in this section. § . this act shall not be so construed as to prevent any practising physician from selling such liquors for medicine, not to exceed half a pint at one time. § . that it shall be the duty of the secretary to publish this act in the first newspaper printed in oregon. * * * * * certificate i, john e. long, secretary of oregon, do hereby certify, that the foregoing act on ardent spirits, is truly and correctly revised by me. j. e. long, _secretary_. footnotes: [ ] oregon territory, which under the treaty of was held in joint occupation by the united states and great britain, had been brought into prominence by the presidential campaign of , and the belligerent message of president polk at his inauguration in march, . emigration thither for the year exceeded that of any previous season and consisted of nearly three thousand persons, largely from missouri and the frontier states of the old northwest.--ed. [ ] blue river, in central indiana, flowing through rush and shelby counties, is part of the white river system.--ed. [ ] for a note on the founding of indianapolis see our volume ix, p. , note .--ed. [ ] mount meridian is a small village in jefferson township, putnam county, indiana. it was laid out in and at first named carthage.--ed. [ ] for st. charles see our volume v, p. , note .--ed. [ ] by the term "lute creek," palmer intends loutre river, rising in northeast callaway county, and flowing south and southwest through montgomery county into the missouri, at loutre island. see our volume v, p. , note .--ed. [ ] williamsburgh, a village in the township of nine mile prairie, callaway county, was laid out in . for fulton see our volume xxi, p. , note .--ed. [ ] columbia and rocheport are noted in our volume xxi, p. , note ; boonville, _ibid._, p. , note . palmer probably crossed the missouri at boonville. townsend went by a similar route from st. louis to boonville. see his _narrative_ in our volume xxi, pp. - .--ed. [ ] marshall was in set off as the county seat of saline, and in had a population of . it was named in honor of the chief justice of the united states, who died shortly before the incorporation of the town.--ed. [ ] for independence see our volume xix, p. , note . gregg gives a much fuller description of this town as an outfitting place, than does our present author; _ibid._, pp. - .--ed. [ ] on the bounds of this territory, see our volume xxi, p. , note .--ed. [ ] walkarusa creek rises in several branches in wabaunsee county, and flows east through shawnee and douglas into kansas river. the crossing of the oregon trail was almost directly south of lawrence. the trail thence followed the divide between the creek and river to about the present site of topeka. during the free soil troubles in kansas, a bloodless campaign ( ) along this creek toward lawrence was known as the "walkarusa war." kansas river is noted in our volume xiv, p. , note .--ed. [ ] for the kansa indians see our volume v, p. , note ; also our volume xxviii, p. , note . wyeth notes their village in his _oregon_, our volume xxi, pp. , .--ed. [ ] for this stream see de smet's _letters_ in our volume xxvii, p. , note .--ed. [ ] this was probably a local publication of the journal or notes of william gilpin, who went to oregon with frémont's party in . gilpin was a pennsylvanian, appointed cadet at west point in . two years later he became lieutenant in the nd dragoons, and saw frontier service, resigning from the army in . he accompanied frémont as far as the dalles of the columbia, and passed the winter of - in the willamette valley, returning overland to the states in . as an intelligent observer his reports on the oregon country were much sought (see _niles' register_, lxvii, p. ). gilpin afterwards served in the mexican war, and earnestly urged the building of a pacific railway. in he was appointed first territorial governor of colorado, in recognition of "his services as an explorer of the great west," and lived until .--ed. [ ] stephen hall meek was a brother of colonel joseph meek so well known as an oregon pioneer (see our volume xxviii, p. , note ). stephen began his career as a trapper under captain bonneville in , and accompanied joseph walker to california in - . he was in the willamette valley in , where he purchased of dr. john mcloughlin the first lot sold on the site of oregon city. in he guided the emigrant caravan from fort laramie. his unfortunate experience in attempting a "cut off" with a party of emigrants in (related _post_ by palmer), discredited his abilities as a guide. at the time of the gold excitement ( - ) he returned to california, where he made his later home in siskiyou county.--ed. [ ] little is known of dr. presley welch save as related by palmer--that he was from indiana, was chosen captain of the caravan, and was without authority after the formation of the independent companies. h. h. bancroft (_history of oregon_, i, p. ) notes that he was candidate for governor in . george h. himes, assistant secretary of the oregon historical society, writes to the editor: "in all my efforts to make a roll of pioneers by years, i have not so far been able to find anything about dr. welch; hence i conclude he either left the country at an early date or died soon after his arrival here."--ed. [ ] for this stream see our volume xxi, p. , note . townsend also describes the same kansa village, _ibid._, pp. , .--ed. [ ] the big vermillion is now known as the black vermillion, an eastern tributary of the big blue, in marshall county, kansas. the usual crossing was near the site of the present town of bigelow. bee creek is a small stream in marshall county. the big blue is noted in our volume xiv, p. , note ; also in our volume xxi, p. , note .--ed. [ ] for a biographical note on colonel stephen w. kearny see our volume xvii, p. , note . in the summer of the general of the army ordered kearny to take five companies of dragoons and proceed from fort leavenworth via the oregon trail to south pass, returning by way of the arkansas and the santa fé trail. the object was both to impress the indians, and to report upon the feasibility of an advanced military post near fort laramie. leaving their encampment may , they were upon the little blue by the twenty-sixth of the month. see report in _senate docs._, cong., sess., , pp. - . this was the first regular military campaign into the land of the great west, and strongly impressed the indians of that region. kearny's recommendations were against the establishment of a post because of the difficulty of supplying it--advising instead, a biennial or triennial campaign similar to his own.--ed. [ ] by the "republican fork of blue river" palmer intends the stream known usually as the little blue. republican river, farther west, is an important branch of kansas river, and for a portion of its course nearly parallels the little blue. the oregon trail, however, followed the latter stream, and the distances given by palmer preclude the possibility of a detour via the republican river. the name of this stream, as well as that applied by palmer to the little blue, is derived from the tribe of republican pawnee, for which see our volume xiv, p. , note .--ed. [ ] there were two routes across from the head of little blue river to the platte. the first left the trail near the site of leroy, nebraska, and came in to the platte about twenty miles below grand island; the second continued farther west, about ten miles, then crossed northwest to the platte near the site of fort kearney. see military map of nebraska and dakota, prepared in - by lieutenant g. k. warren of the topographical engineer corps. for the platte river see our volume xiv, p. , note .--ed. [ ] for this tribe, see our volume vi, p. , note ; also our volume xv, pp. - ; and xxviii, p. , note .--ed. [ ] thomas fulton stephens joined the oregon caravan from illinois. the year after his arrival in oregon he took up donation land near the site of portland and erected thereon a saw-mill. his death occurred in .--ed. [ ] john foster was born in ohio in , removed to missouri in early life, and in was still residing in oregon.--ed. [ ] orville risley was born in new york state about . in early life he removed to ohio, where he joined the oregon emigrants of . upon reaching the willamette valley he took up land in clackamas county, and later was a merchant at lafayette. in his last years he resided principally at portland, where he was known as judge risley, from having once held the office of justice of the peace. his death occurred at his clackamas farm in .--ed. [ ] for the fords of the south platte see our volume xxi, p. , note .--ed. [ ] ash hollow, called by frémont coulée des frênes, was a well known landmark, where the oregon trail crossed the north platte. it is now known as ash creek, in deuel county, nebraska.--ed. [ ] spring creek was probably the one now known as rush, formed by springs issuing in cheyenne county, nebraska. the second creek was that now entitled pumpkinseed. in the days of trail-travelling it was called gonneville, from a trapper who had been killed thereon. the solitary tower is on its bank--a huge mass of indurated clay, more frequently known as the court house or the castle.--ed. [ ] for a note on chimney rock consult de smet's _letters_ in our volume xxvii, p. , note . see also engraving in frémont's "exploring tour," _senate docs._, cong., sess., , p. .--ed. [ ] this story is told with variations by many writers, notably washington irving in his _rocky mountains_ (philadelphia, ), i, pp. , . the event appears to have occurred about . the range of bluffs, about nine hundred yards in length, still retains the name. it is situated on the western borders of nebraska, in a county of the same name.--ed. [ ] the usual habitat of the dakota or sioux was along the missouri river or eastward. the teton sioux were in the habit of wandering westward for summer hunts, and this was probably a band of the oglala or brulé teton, who frequently were encountered in this region. for the teton subdivisions see our volume xxii, p. , note .--ed. [ ] the succession of trading posts on the laramie branch of platte river is somewhat confusing, due to differences in nomenclature. consult our volume xxi, p. , note . the fort here described appears to be the new fort laramie (which must thus have been built in , not ). alexander culbertson, who was at one time in command for the american fur company, says that this post cost $ , , and was the best built stronghold in the company's possession. fort john was the old american fur company's post. how a rival company had secured it, seems a mystery; possibly palmer has confused it with fort platte, which frémont notes in at the mouth of the laramie, belonging to sybille, adams, and company. see his "exploring tour" (cited in note , _ante_), p. .--ed. [ ] since the above was written, the north american fur company has purchased fort john, and demolished it.--palmer. [ ] the trail lay back from the river, for some distance above fort laramie. big spring was frequently known as warm spring, and the coulée, in laramie county, wyoming, still retains the name of warm spring cañon.--ed. [ ] on the general use of the term black hills see our volume xxiii, p. , note . the stream called fourche amère (bitter fork) by frémont is now known simply as cottonwood creek.--ed. [ ] retaining the same name, horseshoe creek is a considerable wooded stream in western laramie county, wyoming.--ed. [ ] this is now known as lower platte cañon, and is traversed by the wyoming branch of the colorado and southern railway.--ed. [ ] big timber creek was called la fourche boisée by frémont; more frequently it was known by the name it still retains--la bonté creek, in converse county, wyoming. the cut-off recommended by palmer would be by way of elkhorn creek and an affluent of la bonté.--ed. [ ] deer creek is the largest southern affluent of the platte, between the laramie and the sweetwater. it is well-timbered, and its mouth was a familiar camping place on the oregon trail. it is in the western part of converse county, wyoming, about miles from the starting point at independence.--ed. [ ] the best ford in this stretch of the river; it averaged only about three feet in depth at the ordinary stage of water, and its width varied from eight hundred to fifteen hundred feet. it was a little above the present town of casper, wyoming.--ed. [ ] the mineral spring was usually called red spring, near poison spider creek, and shows traces of petroleum. for a description of red buttes see our volume xxi, p. .--ed. [ ] for independence rock and sweetwater river see our volume xxi, p. , notes , .--ed. [ ] for this gap, or cañon, see de smet's _letters_ in our volume xxvii, p. , note .--ed. [ ] the wind river mountains are noted in our volume xxi, p. , note . the trail along the sweetwater is for the most part over a rough, undulating prairie, but at times the hills force the road close to the river valley. at one place, about thirty-six miles above the river's mouth, the route grows rugged and crosses the river three times. this was usually known as the three crossings, and is probably the stretch that palmer calls the narrows.--ed. [ ] joseph r. walker was born ( ) in tennessee. in early life he migrated to the missouri frontier, and for many years was a trapper and trader in the direction of santa fé. once he was captured by the mexicans, and afterwards participated in a battle between them and the pawnee indians. in captain bonneville secured walker as a member of his trading party, and the following year sent him on an expedition that explored a route from salt lake to california, through walker's pass, which took its name from this explorer. on this journey he claimed first of any american to have seen the yosemite. his knowledge of the west brought his services in demand as a guide or pilot. in he led out a small party of emigrants. from bridger's fort, whither he was going when met by palmer, he joined frémont's third exploring expedition, and was sent forward with a portion of the party by his former route of . the junction with his chief's party was made after the latter's visit to monterey. walker, however, did not remain to take part in the events that led to the american conquest of california, but started back to the states with a drove of california horses for sale, and was again at fort bridger in july, . for twenty years longer he continued his vagrant life in the mountains, finally settling ( - ) in contra costa county, california, where he died in .--ed. [ ] for south pass and green river see our volume xxi, pp. - , notes , . the springs were known as pacific springs, running into a creek of that name, affluent of the big sandy in frémont county, wyoming.--ed. [ ] the dry branch is known as dry sandy creek. for the little sandy see our volume xxi, p. , note .--ed. [ ] this was known as sublette's cut-off; see de smet's _letters_ in our volume xxvii, p. , note .--ed. [ ] at this point, green river bears considerably east of south, the trail therefore turns southwest, striking black fork of green, not far from the present granger, wyoming, at the junction of the union pacific and oregon short line railways. black fork rises in the extreme southeastern corner of wyoming, flows northeast, thence east and southeast, entering the green in sweetwater county. it is a shallow, somewhat sluggish stream, passing through an alkaline country.--ed. [ ] the site of fort bridger was chosen by its founder as the best station for trade with emigrants following the oregon trail. its building ( ) marked an epoch in western emigration, showing the importance of trade with the increasing number of travellers. the place was an oasis in the desert-like neighborhood, the stream of black fork coming from the unita mountains, and in this wooded valley dividing into several branches. in bridger sold his post to a mormon named lewis robinson, who maintained it until , when united states troops wintering during the mormon campaign built at this site a government post, also known as fort bridger, which was garrisoned about twenty years longer. for bridger, the founder, see de smet's _letters_, in our volume xxvii, p. , note . his partner was louis vasques (not bascus), a mexican who for many years had been a mountain man. for some time he was in partnership with sublette in a trading post on the south platte. about he entered into partnership with bridger, and is remembered to have lived with some luxury, riding about the country near fort bridger in a coach and four. see wyoming historical society _collections_, i, p. .--ed. [ ] for the snake (shoshoni) indians, see our volume v, p. , note . the paiute are referred to in our volume xviii, p. , note ; also in de smet's _letters_, in our volume xxvii, pp. , , notes , .--ed. [ ] by the little muddy, palmer refers to the stream now known as the muddy, a branch of black fork, which would be reached in about eight miles from fort bridger, by travelling northwest. palmer's "big muddy" is the stream usually known as ham's fork, for which see our volume xxi, p. , note .--ed. [ ] the divide between the waters of green and bear river may be crossed at several points. its altitude is about eight thousand feet, and all travellers speak of the wide view. the mountains to the west are those of the bear river range, running between the arms of the river, for which see our volume xxi, p. , note .--ed. [ ] the upper road from green river, usually known as sublette's road, comes across by way of crow creek, a branch of ham's fork, and sublette creek, a tributary of the bear. smith's fork comes almost directly from the north, its headwaters nearly interlacing with salt river branch of lewis (or snake) river. it enters bear river quite near the dividing line between wyoming and idaho.--ed. [ ] the first crossing of bear river is just above the mouth of thomas's fork. for a detailed map of this stretch of the road see frémont's "exploring tour" (_op. cit._ in note ), p. .--ed. [ ] the big hill is just beyond the bend of the bear, below thomas's fork, and the nearest approach the road makes to the valley of bear lake. this lake is evidently the remains of one that occupied a much larger area, as the marshes at its upper end signify. it now measures about nineteen miles in length, with an average width of six, and a depth of from forty to sixty feet. the lower portion of the lake is in utah and the upper in idaho. its waters are noted for their exquisite blue tint.--ed. [ ] for the location of these springs see our volume xxi, p. , note .--ed. [ ] a map of these springs can be found in frémont's "exploring tour" (_op. cit._ in note ), p. . steamboat spring is a miniature geyser, an analysis of whose waters is given by frémont, p. .--ed. [ ] for a brief note on salt lake see our volume xxi, p. , note .--ed. [ ] the entire route from soda springs at the bend of bear river to fort hall was about fifty miles in length, crossing the basaltic, volcanic plateau which palmer describes, to the waters of portneuf river, down which the trail passed to fort hall. for the founding of this post see townsend's _narrative_, in our volume xxi, pp. - .--ed. [ ] captain james grant was hudson's bay factor in charge at fort hall for several years during the immigration movement. most of the travellers speak of his courtesy and readiness to assist. he was at this post in , when matthieu describes him as a large man, resembling dr. mcloughlin--_oregon historical quarterly_, i, p. . he seems to have later settled in oregon.--ed. [ ] for a brief description of snake (or lewis) river, see our volume xxviii, p. , note .--ed. [ ] this attempt to deflect oregon immigrants to california arose from the unsettled conditions in that mexican province, and the determination of earlier american settlers to secure california for the united states. caleb greenwood, who was sent to fort hall from sutter's fort (sacramento), was an aged mountaineer and trapper, who reared a half-breed family by a wife of the crow tribe. in he guided the stevens party to california, and during the winter of - served in sutter's division of micheltorena's army against alvarado and castro. sutter wrote in regard to his mission, "i am glad that they meet with some good pilots at fort hall who went there from here to pilot emigrants by the new road."--ed. [ ] george mcdougall was a native of ohio, but started on his journey from indiana. he conducted the advance party of young men known as the swasey-todd party, over the truckee route to sutter's, leaving fort hall about august , and arriving at new helvetia late in september. mcdougall served the next year in the california battalion, and was known to have been at san francisco in - . he several times returned east, and after became a confirmed wanderer, being found in patagonia in . he is thought to have died at washington, d. c., in . he was eccentric, but brave, and a favorite with the frontier population. many of the emigrants who turned off at fort hall for california went overland to oregon the next year. consult h. h. bancroft, _history of oregon_ (san francisco, ), i, p. .--ed. [ ] the writer has recently learned that the emigrants alluded to, not finding california equal, in point of soil, to their high wrought anticipations, have made the best of their way to oregon.--palmer. [ ] for another description of portneuf (not portneth) river see de smet's _letters_ in our volume xxvii, p. , with accompanying note.--ed. [ ] these falls derive their name from the following circumstance. a number of american trappers going down this stream in their canoes, not being aware of their proximity to the falls, were hurried along by the violence of the current; and passing over the falls, but one of the number survived.--palmer. [ ] the trail from fort hall led down the eastern and southern bank of the lewis; see our volume xxviii, p. , note . american falls is a well-known landmark, flowing over a rock about forty feet in height; see frémont's "exploring tour" (_op. cit._ in note ), p. , for an engraving thereof. the once barren land of this region is now being made fertile by irrigation.--ed. [ ] fall creek, in oneida county, so called by frémont, and still known by this name. its bed is composed of calcareous tufa, chiefly the remains of reeds and mosses, forming a beautiful succession of cascades.--ed. [ ] cassia creek is an important western affluent of raft river, of cassia county, idaho. upon its banks was the earliest settlement in this region, and the valley is still noted for its farms. the first party to take this route to california was that of j. b. chiles ( ), guided by joseph walker. they struck across from the snake to humboldt river, down that stream to its sink, and by the walker pass into california. in the stevens party followed a similar route; crossing the sierras, however, by truckee and bear river road, the line of the present central pacific railway.--ed. [ ] called by frémont swamp creek, now known as marsh creek, a small southern affluent of the lewis. it forms a circular basin or valley, about six miles in diameter, where there was grass and consequently a good camping place.--ed. [ ] goose creek is a deep, rocky stream rising in goose creek range, lying on the border between idaho and utah. the creek flows north, receiving several branches before entering the lewis in cassia county. placer mines of considerable value have been found on this creek.--ed. [ ] dry creek is still to be found on the maps of cassia county. frémont says of this portion of the trail: "all the day the course of the river has been between walls of black volcanic rock, a dark line of the escarpment on the opposite side pointing out its course, and sweeping along in foam at places where the mountains which border the valley present always on the left two ranges, the lower one a spur of the higher; and on the opposite side, the salmon river mountains are visible at a great distance." (see _op. cit._, _ante_, in note , p. .)--ed. [ ] the falls mentioned by palmer are the great shoshone falls of the lewis river, where the cañon is over eight hundred feet deep: the first fall has a plunge of thirty feet, and then a sheer descent of a hundred and ninety. these are, in the united states, exceeded in grandeur only by niagara and the yosemite. palmer's failure to appreciate their height and magnificence was probably due to the depth of the cañon from the top of which he viewed them; or he may not have seen the lower falls at all, for the trail wound back from the river in many places. rock creek is a considerable stream, with a swift current, flowing northwest into the lewis in cassia county, idaho.--ed. [ ] salmon falls river is the largest southern affluent of the lewis that has been crossed since leaving fort hall. it rises in many branches on the boundaries of nevada and flows north through a valley now noted as a hay-and stock-raising section. salmon falls (also called fishing falls) is a series of cataracts with sharply inclined planes, forming a barrier to the ascent of the salmon, and thus a fishing resort for indians.--ed. [ ] for this crossing see our volume xxviii, p. , note .--ed. [ ] the emigrants were in elmore county, idaho, where a number of small streams come from the north into lewis river; one is known as cold spring creek, possibly the branch mentioned by palmer.--ed. [ ] for these springs see farnham's _travels_ in our volume xxviii, p. , note .--ed. [ ] for boise river see our volume xxi, p. , note . the trail approached this stream near the present site of boise city, and followed its banks to lewis river.--ed. [ ] for a brief sketch of fort boise see farnham's _travels_ in our volume xxviii, p. , note .--ed. [ ] this northern and more direct route was followed by wyeth in --see townsend's _narrative_ in our volume xxi, pp. - . he found the difficulties of the passage great, and the longer and more southern route was the one usually followed.--ed. [ ] for malheur river see our volume xxi, p. , note . the hot springs are noted in our volume xxviii, p. , note .--ed. [ ] for a brief sketch of the life of dr. elijah white see farnham's _travels_ in our volume xxix, p. , note . he was at this time returning to washington to secure the settlement of his accounts as indian sub-agent, and with the hope of securing further preferment--if possible, the governorship of oregon. he was the bearer of a memorial from the provisional government of oregon, requesting congress to extend the sovereignty and laws of the united states over the oregon settlements. see _cong. globe_, cong., sess., p. . later advices from oregon, however, frustrated the plans of dr. white, who was retired to private life. on his return his companions across the plains ( ) were william chapman and orris brown of the immigration of , and joseph charles saxton of . only brown returned to oregon; he went back in accompanied by his own family, and that of his mother, mrs. tabitha brown, who was connected with the history of early education footnote: in oregon. the brown family settled at forest grove, the immigrant of finally dying at salem in . white, in his _ten years in oregon_ (new york, ), p. , speaks of meeting a party (palmer's) near fort boise, who brought him important letters, including one from his wife, the first received in fifteen months.--ed. [ ] birch creek (rivière aux bouleaux) rises in burnt river mountains and flows southeast into lewis river, in malheur county, oregon.--ed. [ ] for burnt river and the course of the trail through its valley see townsend's description in our volume xxi, pp. , .--ed. [ ] for powder river see our volume xxi, p. , note . the mountains seen were the blue; see a brief description in _ibid._, p. , note .--ed. [ ] pronounced kiwaw or kioose.--palmer. _comment by ed._ for the cayuse see our volume vii, p. , note . [ ] for the valley of grande ronde see our volume xxi, p. , note . consult on camas, _ibid._, p. , note .--ed. [ ] this northern valley is the lower portion of the grande ronde. frémont says: "we passed out of the grand rond by a fine road along the creek, which, for a short distance, runs in a kind of rocky chasm. crossing a low point, which was a little rocky, the trail conducted into the open valley of the stream--a handsome place for farms." (_op. cit._ in note , p. .) this is now the most flourishing settlement in eastern oregon with a railway running through the valley to elgin.--ed. [ ] probably this was the cayuse chief tiloukaikt, who had early come under dr. whitman's influence, but nevertheless was treacherous, and unstable in his professions of christianity. in he had insulted dr. whitman because of the punishment of one of his nephews by a missionary teacher. in he entered into the treaty with some reluctance, and in was one of the principals concerned in the whitman massacre. the following year he was one of the five chiefs who gave themselves up to the civil authorities, and he paid the penalty of his murderous instincts upon the scaffold.--ed. [ ] for the nez percés see franchère's _narrative_ in our volume vi, p. , note .--ed. [ ] for whitman and spaulding see our volume xxi, p. , note .--ed. [ ] on the crossing of blue mountains compare our volume xxviii, p. , note .--ed. [ ] for the location of these peaks see our volume vi, pp. , , notes and respectively. lee's encampment was the place upon which henry a. g. lee had waited for the immigrants of . lee, who was a member of the train of , was commissioned by dr. elijah white as indian sub-agent to encounter the party of among the cayuse and assist in the trading between indians and immigrants, and thus protect both parties. the policy did not prove successful; see lee's own letter on the subject in _oregon historical quarterly_, v, p. . lee emigrated from the southwestern states, and immediately became a leader in oregon politics. he was elected to the legislature of , and was an officer in the cayuse war of - , during which he was appointed indian agent to succeed general joel palmer. the following year he resigned his office, and soon thereafter left for the california gold mines. he returned to oregon to enter the mercantile business; but died on a voyage to new york in .--ed. [ ] for the umatilla river see our volume vi, p. , note . the indian village was probably that of five crows, who in was elected head-chief of the cayuse. his baptismal name was hezekiah, and he took no active part in the whitman massacre ( ); nevertheless he did nothing to prevent its occurrence and secured the person of some of the prisoners, notably a miss bewley, whom he took as a wife. five crows afterwards was active in the cayuse war ( ), in which he was severely wounded.--ed. [ ] for mrs. whitman see our volume xxi, p. , note .--ed. [ ] mary ann bridger and helen mar meek, half-breed children of james bridger and joseph meek, were brought to the whitmans before ; also a half-breed spanish boy, david malin. the migration of left with mrs. whitman two motherless english girls, ann and emma hobson; while in seven children of the sager family, both of whose parents had died en route across the plains, were adopted by the whitmans. of these children the two eldest sager boys were killed during the massacre; the half-breed girls and one of the sager girls died a few days later, from exposure and fright.--ed. [ ] for the wallawalla indians see our volume vii, p. , note .--ed. [ ] probably willow creek, which drains morrow county and affords water for stock-raising and sheep-pasturage. late in the year, when palmer passed, the stream was dry. the sandy margin along the columbia from the mouth of umatilla river to the dalles, has always been an annoyance to traffic. sand frequently drifts over the railway track in this region.--ed. [ ] for a brief note on john day river see our volume xxi, p. , note .--ed. [ ] for this river see our volume vii, p. , note ; also our volume xxviii, p. , note .--ed. [ ] for the dalles and the mission there located, consult our volumes xxi, p. , note ; xxviii, pp. , , notes , .--ed. [ ] samuel kimborough barlow was of scotch descent, the son of a kentucky pioneer. born ( ) in nicholas county, in that state, he removed to indiana ( ), where he married susanna lee of south carolina. a further move to fulton county, illinois, paved the way for emigration to oregon in . arrived in oregon city, christmas of that year, barlow kept a hotel there until , when he bought land in clackamas county of thomas mckay. later ( ), he removed to canemah, just above oregon city, where he died in . he was public-spirited and active in the affairs of the new commonwealth. for an account of the road constructed over the trail made in , see mary s. barlow, "history of the barlow road," in _oregon historical quarterly_, iii, pp. - . h. m. knighton was second marshal of oregon under the provisional government, and sergeant-at-arms of the house of representatives of . he lived at oregon city, where he kept an inn. in he was settled at st. helens.--ed. [ ] moses harris, usually called black harris, was a well-known scout and trapper who came to oregon with the emigrant train of . see an amusing story concerning harris, related by peter h. burnett in his "recollections," in _oregon historical quarterly_, iii, p. . while in oregon harris joined several exploring expeditions, notably that of dr. elijah white ( ) and that of levi scott ( ) in the attempt to find a shorter route from lewis river to the willamette valley. in harris again went to the rescue of the emigrants who were trying a new route into oregon; the following year, however, he returned to the states, dying at independence, missouri.--ed. [ ] for other brief descriptions of the experiences of meek's party, see h. h. bancroft, _history of oregon_, i, pp. - , this latter being founded upon manuscript accounts, notably that of samuel hancock, a transcript of which is in the possession of professor joseph schafer of the university of oregon, who has kindly loaned it to the present editor. consult also oregon pioneer association _transactions_, , pp. - ; , p. .--ed. [ ] there had been an indian trail through the cascades up the fork of the santiam river, and over what is now known as the minto pass. stephen meek, who had trapped on the headwaters of john day river, and there met indians from the willamette, thought that he could find this trail; but as a matter of fact it was not discovered by whites until . dr. white ( ) and cornelius gilliam ( ) made essays to open a road through the eastern barrier of the valley. see john minto, "history of the minto pass," in _oregon historical quarterly_, iv, pp. - .--ed. [ ] this was tygh creek, a western affluent of deschutes river, about thirty-five miles above its mouth.--ed. [ ] marked on the united states land commissioner's map of oregon ( ) as an affluent of white river, a branch of the tygh.--ed. [ ] see an account of this party of cattle drivers and their adventures in "occasional address," by hon. stephen staats, in oregon pioneer association _transactions_, , pp. , . staats was one of the party who reached oregon city in thirteen days from the dalles.--ed. [ ] the little deschutes, rising on the slopes of mount hood. see reminiscences of william barlow, son of the leader of this party, in _oregon historical quarterly_, iii, pp. - . he speaks of the lack of good tools for opening the road, rusty saws and axes being the only implements available to the builders. they frequently reverted to firing the underbrush ahead of them.--ed. [ ] the opinion heretofore entertained, that this peak could not be ascended to its summit, i found to be erroneous. i, however, did not arrive at the highest peak, but went sufficiently near to prove its practicability. i judge the diameter of this peak, at the point where the snow remains the year round, to be about three miles. at the head of many of the ravines, are perpendicular cliffs of rocks, apparently several thousand feet high; and in some places those cliffs rise so precipitately to the summit, that a passage around is impracticable. i think the southern side affords the easiest ascent. the dark strips observable from a distance, are occasioned by blackish rock, so precipitous as not to admit of the snow lying upon it. the upper strata are of gray sandstone, and seem to be of original formation. there is no doubt, but any of the snow peaks upon this range can be ascended to the summit.--palmer. [ ] this should read big sandy or quicksand river. lewis and clark gave it the latter name. it is usually known as the sandy, and in many branches drains the western slope of mount hood, flowing northwest into the columbia, in multinoma county.--ed. [ ] for clackamas river see our volume xxi, p. , note .--ed. [ ] william h. rector settled at champoeg, which district he represented in the legislature of . during the gold excitement the following year, he went to california, but returned to oregon, where in he was instrumental in starting the pioneer woolen mill at salem, of which for some time he was superintendent. in he was commissioner of indian affairs, with headquarters at portland. in later life, rector was interested in railway enterprises. popular with oregon settlers, he was quite commonly known as "uncle billy."--ed. [ ] william gilbert buffum was born in vermont in . when eleven years of age his family removed to ashtabula county, ohio. in buffum went to illinois to work in the mines, later settling in fulton county, and removing to missouri in . his wife, caroline thurman, was born in ohio in . after their long journey to oregon, the buffums settled in yamhill county, near amity, where they afterwards resided, with the exception of a year spent in the california gold fields. buffum was still living in amity in . see his reminiscences in oregon pioneer association _transactions_, , pp. - . mrs. miriam a. thompson (_née_ robinson) was born in illinois ( ) and married the year before the migration to oregon. after reaching the willamette she settled in yamhill county, thence removing to clatsop plains, where in her husband left her for california. there he was murdered, and in his widow married jeremiah h. tuller, after living in douglas county. for her own account of her adventures, and especially this trip across the cascade mountains, see oregon pioneer association _transactions_, , pp. - .--ed. [ ] jacob c. caplinger was born in virginia in , of german descent. in he removed to illinois, in marrying jane woodsides. after reaching the settlements, the caplingers remained at oregon city until , when they purchased a farm near salem, where they were living in .--ed. [ ] matthew (not n.) gilmore came out in , settling on the tualatin plains, where he was chosen delegate to the provisional legislature of . gilmore was a farmer, not prominent in public life. charles gilmore appears to have been of the migration of . peter g. stewart came with the applegate party of , and was one of the executive committee of three, chosen in . he was a man of calm, dispassionate temper, who had been a jeweler in the states. in he was port surveyor at pacific city.--ed. [ ] according to h. h. bancroft, _history of oregon_, i, pp. , , these were the families of andrew hood and sharp c. senters. rev. theophilus powell was born in kentucky, left for oregon from missouri, and died in marion county, oregon, in .--ed. [ ] several members of the party of bore the name of smith; probably this was simeon, born in ohio in , removed to missouri in , and settled in marion county, finally making his home in salem, where he died in . see reference in stephen staats's address, in oregon pioneer association _transactions_, , p. ; also _ibid._, , pp. , .--ed. [ ] colonel james taylor was born in pennsylvania ( ), of scotch-irish ancestry. in he removed to ohio, where he was active in the state militia and connected with the indian trade. his wife was esther d'armon, who came with him to oregon. see her biography in oregon pioneer association _transactions_, , pp. - , wherein is recounted her experience in crossing the cascades. colonel taylor removed in to clatsop plains, but at the outbreak of the cayuse war ( ) carried his family back to oregon city, while he served in the extempore army as assistant commissary to general palmer. in - taylor was chosen first territorial treasurer. about the taylors returned to clatsop, removing to astoria about , where they passed the remainder of their lives, both dying in .--ed. [ ] samuel mcswain, of the emigration of .--ed. [ ] peter h. hatch, who came to oregon by sea in .--ed. [ ] the clackamas indians were a branch of the upper chinook, which had long inhabited the river valley called by their name. lewis and clark reported ( ) that there were eleven villages of this tribe, with a population of eight hundred. see thwaites, _original journals of the lewis and clark expedition_ (new york, ), iv, p. ; vi, p. . the indian agent for estimated their number at eighty-eight. the village where palmer tarried was the one visited in by members of the wilkes exploring expedition. a conflict for influence over this tribe was in progress at the time, between the catholic and methodist missionaries stationed at the falls of the willamette. captain william clark thus describes their huts: "they build their houses in the same form with those of the columbian vally of wide split boa[r]ds and covered with the bark of the white cedar which is the entire length of one side of the roof and jut over at the eve about inches."--ed. [ ] for the founding of oregon city see de smet's _oregon missions_, in our volume xxix, p. , note .--ed. [ ] for a sketch of dr. john mcloughlin see our volume xxi, p. , note .--ed. [ ] de smet describes the building of the catholic church in his _oregon missions_, our volume xxix, p. .--ed. [ ] in the wallamet milling company was organized and proceeded to erect both flour and grist mills on an island near the falls, in order to accommodate the settlers, who before their erection had been dependent upon the hudson's bay company's mills near vancouver. the founders of this enterprise were members of the methodist mission. governor george abernethy of new york (born in ) came to oregon as steward of the party of reinforcement arriving in the "lausanne" ( ). his business capacity was appreciated by the members of the mission, and he was soon established as a merchant at oregon city. here he took prominent part in the organization of the provisional government, of which he was elected governor in . re-elected the following year, abernethy continued in this office until the arrival of governor joseph lane ( ), sent out as first territorial governor by the united states. during the troubles incident to the whitman massacre, governor abernethy acted with discretion and promptness, and retained the good will of oregonians during his entire term of office. after retiring from public service he continued in mercantile pursuits, dying at portland in . see his portrait in h. s. lyman, _history of oregon_, iii, p. . for alanson beers see farnham's _travels_ in our volume xxix, p. , note .--ed. [ ] in the oregon printing association was formed, and george abernethy sent to new york for a press upon which was printed the first number of the _oregon spectator_, february , . its first editor was colonel william g. t'vault, a pioneer of ; he was succeeded by henry a. g. lee, george l. curry, aaron e. wait, and rev. wilson blain, successively. although several times suspended for brief periods, the _spectator_ was published until . for an account see george h. himes, "the history of the press of oregon, - ," in _oregon historical quarterly_, iii, pp. - .--ed. [ ] see descriptions of this game in _original journals of the lewis and clark expedition_, iv, p. ; and in ross's _oregon settlers_, our volume vii, pp. - .--ed. [ ] william engle, of german descent, was born near harper's ferry, virginia, in , and served as a volunteer in the war of - . having lived for some years in st. clair county, illinois, he went out with the train of for oregon, settling first at oregon city. the following year he took up donation land in clackamas county, where he resided until , being chosen member of the legislature of , and for two years serving as county judge. having sold his farm in clackamas, he removed to marion county, where he died in . engle was by trade a carpenter; his experiment as a foundryman does not appear to have been successful.--ed. [ ] lewis f. linn was born in near louisville, where he studied medicine and afterwards volunteered for the war of - . at its close he removed to ste. geneviève, missouri, where he began active practice. in he was elected to the state senate, and in was appointed to the united states senate to fill out the term of a deceased senator. thrice elected thereto by the missouri legislature, he served until his own death in , being known in the senate as a champion of oregon interests. the town opposite oregon city was known as linn city. it consisted in december, , of two log buildings and many tents, wherein the emigrants of made their headquarters. in all the buildings were swept away by a flood. it has now no separate existence.--ed. [ ] robert moore was born in pennsylvania in , served in the war of - , and in emigrated to ste. geneviève, missouri, whence he was sent to the state legislature. in he removed to illinois, where in he joined the peoria party for emigration to oregon. see preface to farnham's _travels_, in our volume xxviii. moore was one of the seceders who went off from bent's fort to fort st. vrain, where he spent the winter of - . arrived in oregon he purchased land of the indians on the west side of the willamette, naming his place the "robin's nest," being visited there by commodore wilkes in . moore served on a committee of the provisional government, and held a commission as justice of the peace. he died in oregon september , .--ed. [ ] hugh burns was a blacksmith who came to oregon in , in the party of medorem crawford. the same year he was made a magistrate, and concerned himself with public affairs until his return to missouri in . for the multinoma indians see our volume vi, p. , note .--ed. [ ] the right to establish public ferries was granted by the provisional legislature of to robert moore and hugh burns.--ed. [ ] the site of portland was unoccupied until november, , when william overton, from tennessee, and asa l. lovejoy staked off claims of three hundred and twenty acres each. in overton sold out to f. w. pettygrove of maine for $ , and the first log cabin was built. in the place was named and a town platted; the growth was slow, however, and by there were only about a hundred inhabitants. two years later the town was incorporated, at that time claiming a population of a thousand. after that the growth became more rapid. in portland suffered a disastrous conflagration. the city's success is due to its position at the head of tidewater navigation for the columbia and willamette valleys, and as being the terminus of eastern and southern trunk railways.--ed. [ ] the willamette is navigable in high water for small steamers as far as eugene, a hundred and thirty-eight miles above portland. the first steamers on the upper willamette were the "hoosier" and "yamhill," built in . since railways have followed both banks of the stream, river navigation has been of minor importance.--ed. [ ] the mountains of the coast range extend at the highest from four thousand to five thousand feet above sea level, with lower levels half as great. several passes run through from the pacific, notably that afforded by the yaquina and mary's rivers, through which runs the oregon central railway.--ed. [ ] by this paragraph, palmer intends to describe tualatin river and plains. the name is derived from a local indian word said to signify "smooth and slowly-flowing stream." the land known to the early settlers as tualatin plains is now embraced in washington county--a famous fruit-and wheat-raising region. the plains are encircled by hills, giving the appearance of a large amphitheatre. the earliest settlers in this region were three independent missionaries, harvey clark, alvin t. smith, and p. b. littlejohn, who crossed the continent in , and the following spring settled at tualatin. about the same time, several mountain men, such as joseph l. meek and robert newell, made their homes in the region. the red river settlers who had come under the auspices of the puget sound agricultural association in , being dissatisfied with lands north of the columbia, gradually drifted south, a number settling at dairy creek, in the tualatin country. for the tualatin river see farnham's _travels_ in our volume xxix, p. , note .--ed. [ ] this stream is usually known as the chehalem, the significance of the name being unknown. among the earliest settlers in this fertile valley were ewing young (see our volume xx, p. , note ), and sidney smith (for whom see our volume xxviii, p. , note ). several mountain men also had farms in the region, as well as archibald mckinley, a member of the hudson's bay company.--ed. [ ] yamhill is said to be a corruption of cheamhill, a name signifying "bald hills." among the earliest settlers were francis fletcher and amos cook, of the peoria party of . medorem crawford ( ) settled near what is now dayton for the first years of his oregon life. general palmer himself chose this valley for his future home, and in founded therein the town of dayton. see preface to the present volume.--ed. [ ] rickerall (commonly rickreall) is a corruption of la creole, the name now usually applied to this stream, which drains polk county and though not navigable has many mill sites and waters a fertile region.--ed. [ ] known as polk county hills, forming a charming background for the western view from salem.--ed. [ ] jesse, charles, and lindsey applegate were natives of kentucky who emigrated to oregon in , and became leaders in its development. the eldest, jesse, was a man of marked peculiarities, but accredited with much wisdom and indomitable perseverance, and a natural leader of men. his influence was considerable in forming the provisional government. in he explored for a southern route into willamette valley, and thence led emigrants south of klamath lake. about he settled in the umpqua country, near the site whence he obtained his title as "sage of yoncalla." a disastrous business venture sent him for a time to the mountains of northern california. during the rogue river and modoc indian wars his knowledge of the character of the aborigines was valuable, and several times he served as special indian agent, dying in douglas county in . charles applegate was born in , removed to st. louis about , migrated to oregon in , and accompanied his brother jesse to douglas county, where he died in . lindsey applegate accompanied general w. h. ashley on his arikara campaign of (see our volume xxiii, p. , note ), wherein he was taken ill. after returning to st. louis he worked in the illinois lead mines, and saw service in the black hawk war ( ). after his migration to oregon ( ), he became only second to his eldest brother in services to the young commonwealth. he made his home in the southern part of the state, near ashland, in jackson county, where he was living in .--ed. [ ] this name should be hembree, that of a pioneer family from tennessee, who came out in . absalom j. hembree was a member of the legislature from to . in the latter year he raised a company for the yakima war, in which he was killed. many descendants of this family live near lafayette and other yamhill county towns.--ed. [ ] these were members of the immigration of , of which cornelius gilliam was chosen leader. he had served in both the black hawk and seminole wars, and had been sheriff and member of the legislature in missouri. his command of the emigrant train did not last through the entire trip, the party breaking into smaller companies, two of which were commanded by william shaw and nathaniel ford. gilliam was colonel of the regiment raised to avenge the whitman massacre, and was killed by the accidental discharge of a gun. william shaw was born ( ) near raleigh, north carolina. when a boy he emigrated to tennessee and took part in jackson's campaign before new orleans ( - ). about he removed to missouri, where he married a sister of colonel gilliam. he was captain in the cayuse war of , and member of the territorial legislature from marion county, ten miles above salem, where he made his permanent home. nathaniel ford was a native of virginia ( ), but was reared in kentucky, and after coming out to oregon settled in polk county, where he died in .--ed. [ ] george gay was an english sailor. born in gloucestershire ( ), he served as ship's apprentice when eleven years of age. in he reached california on the "kitty," and there joined ewing young's trapping party to the mountains of northern california, returning without entering oregon. in he formed one of a party of eight men under the leadership of john turner, who coming overland to oregon were attacked by the rogue river indians, all being wounded and two killed. gay reached the settlements after a trip filled with great hardships, and thenceforth made oregon his home, taking an indian wife and settling high up on the willamette, near the southern boundary of yamhill county. here he built the first brick house in the territory, and with unbounded hospitality opened it to new emigrants. wilkes ( ) describes him as a dashing, gay "vaquero," half-indian in his characteristics, but very useful to the new community. at one time he had considerable wealth in horses and cattle, but died poor in . daniel matheny, of the emigration of , was born in virginia in . successive removals carried him to kentucky, indiana, and illinois, where he served in the war of - , and that of black hawk ( ). having settled near gay in , he afterwards kept a public ferry, dying on his farm in . several of his family accompanied him to oregon.--ed. [ ] luckiamute is the modern spelling of this name of indian origin, derived from a branch of the kalapuya tribe that formerly inhabited this valley. in , federal commissioners made a treaty with this tribe whereby they ceded their lands, and retired soon afterwards to the grande ronde reservation. by mouse river palmer means the stream now known as mary's river--a name given by j. c. avery, the founder of corvallis, in honor of his wife.--ed. [ ] mount jefferson, hayrick mountain, mount washington, and the three sisters, with neighboring peaks.--ed. [ ] our author here intends the coast (not the cascade) range, of which mary's peak, between the two forks of mary's (mouse) river is the highest, rising about five thousand feet above sea level.--ed. [ ] the alsea, in lincoln county, flows into a bay of that name, where small coasting steamers enter and ascend the stream some eighteen or twenty miles. the name is derived from an indian tribe--one of the kalapuya stock.--ed. [ ] in the early days of oregon settlement more frequently spelled longtonguebuff (properly lungtumler), from a branch of the kalapuya tribe that inhabited its banks. the stream is now known simply as long tom river, rising in lane county and flowing nearly north into benton county, entering the willamette not far above peoria.--ed. [ ] palmer here refers to molala river, a stream of southwestern clackamas county, that took its name from a tribe of indians once roaming upon its banks. governor lane in refers to this tribe as mole alley; and the liquid letters "m" and "p" being nearly interchangeable in the indian dialect, palmer gave it the form pole alley. the molala tribe was an offshoot of the cayuse, that had its home west of the cascades. the early settlers testified to their superior physique and stronger qualities, compared with the degraded chinook by whom they were surrounded. in their tribal lands were purchased, when their number was reported at . the remnant removed to douglas county, and in a few calling themselves molala were found on the grande ronde reservation.--ed. [ ] the aboriginal name of this stream was hanteuc. two differing accounts are given of the origin of the present name. elijah white (_ten years in oregon_, p. ) says a party of hudson's bay trappers lost their way upon this stream and were forced to kill their horses for sustenance, making pudding of the blood. others give the derivation as "put in"--the stream that puts in just below the early french settlement, thence degenerated to pudding. the river rises in the foothills near the centre of marion county, and flows nearly north, a sluggish, crooked stream from eighty to a hundred feet in width.--ed. [ ] the butte was a landmark on the upper willamette, a high escarpment prominent from the river. here was formerly a landing for the settlers of french prairie, whose farms lay south and east of this point. the town of butteville was laid out by merchants of oregon city--abernethy and beers--to facilitate the commerce in wheat. f. x. matthieu took up land here as early as , and in kept a store. he still lives at butteville, which in had a population of .--ed. [ ] for champoeg see de smet's _oregon missions_ in our volume xxix, p. , note . the early meetings of the provisional government were held at this place, which was the centre for the old canadian-french inhabitants of the country. dr. robert newell was born in at zanesville, ohio. his fur-trapping experiences were under the auspices of the american fur company (not the hudson's bay company), as companion of joseph l. meek. see f. t. victor, _river of the west_ (hartford, ). his first settlement ( ) after the migration to oregon, was at tualatin plains; but before he removed to champoeg, where by his influence over the settlers he became the political as well as social leader. possibly also newell laid out a town at this place, but he was by no means the founder of the village. newell represented champoeg in the provisional government for several years, and in was speaker of the lower house of the state legislature. after the whitman massacre ( ) he was chosen one of the commissioners, with palmer, to treat with the indians. he also raised a company for the indian war of . in later life he was connected with railway projects and died at lewiston, idaho, in .--ed. [ ] for the early settlement of french prairie, see de smet's _letters_ in our volume xxvii, p. , note ; also our volume vii, p. , note . for the chinook jargon see our volume vi, p. , note ; also pp. - of the present volume.--ed. [ ] for the earliest site of the methodist mission see our volume xxi, p. , note . matheny's ferry is mentioned in note , _ante_, p. .--ed. [ ] for jason lee see our volume xxi, p. , note . his first wife was anna maria pitman, who came out from new york in , the marriage taking place soon after her arrival in may of that year. the following spring lee returned to the united states. upon his journey a messenger overtook him, announcing the death of mrs. lee on june , . the first interment was at the old mission, as here stated. later the grave was removed to salem. h. h. bancroft, _history of oregon_, i, p. , gives the inscription on the tombstone.--ed. [ ] for the origin of the willamette institute see de smet's _oregon missions_ in our volume xxix, p. , note .--ed. [ ] in the missionary society of the methodist episcopal church decided that the oregon mission, being no longer useful for the conversion of indians, should be closed, and the charges organized into a mission conference for whites. in pursuance of this resolve, rev. george gary of black river conference, new york, was appointed to supersede jason lee as superintendent. early in june, , gary settled the affairs of the mission, dismissing the lay members, who immediately bought in the mills and other property of the mission. gary remained in oregon until , making his headquarters at oregon city. the native name of the site at salem--chemekata--was interpreted by rev. david leslie as having the same significance as the term salem--_i. e._, rest, or peace. the site was chosen in for the erection of mills on mill creek. the trustees of oregon institute laid out the town, which grew slowly until in it became the territorial capital. by the terms of the state constitution the capital was located by popular vote, which resulted in favor of salem. its population in was , .--ed. [ ] the santiam river takes its name from the head chief (sandeam) of the kalapuya indians, who dwelt upon its banks. april , , the federal commissioners made a treaty with the santiam branch of the tribe, whereby the latter ceded to the whites a large portion of their lands. their number at this time was a hundred and fifty-five. santiam river drains a considerable portion of marion and linn counties, its north fork forming the boundary between the two. the road up this fork leads to minto pass; the south fork formed the line for the willamette and cascade military road. palmer's use of the term "santa anna" for this stream, in the two following paragraphs, would seem to indicate his ignorance of the indian origin of the term, and an idea that it had been named for the mexican general of that period.--ed. [ ] joel p. walker was a brother of joseph r. walker (see note , _ante_, p. ). of virginian birth he removed at an early age to tennessee, whence he went out under andrew jackson against the alabama indians ( ), and later against the florida seminole. some time before , he removed to missouri, where he married, and engaged in the early santa fé trade with stephen cooper (see our volume xix, p. , note ). walker removed with his family to oregon in --one of the first families of settlers who came independent of the missionary movement. wilkes met him on the willamette in , when he expressed his dissatisfaction with the climate and the conditions. see wilkes's _exploring expedition_, iv, p. . that same year he went overland to california, where he worked for captain sutter, coming back to oregon some time before palmer's visit, with a herd of cattle for sale. this time he remained in oregon several years, being chosen justice of the peace for yamhill county (about ). in he returned to california, where he was a member from napa of the constitutional convention of . in he removed to sonoma county where he spent the remainder of his life, dying sometime after .--ed. [ ] for the umpqua river see our volume vii, p. , note ; the fort is noted in farnham's _travels_, our volume xxix, p. , note .--ed. [ ] for rogue river see _ibid._, p. , note . the mountains lie directly north of the river valley in coos and curry counties, oregon. the first settlers in this valley came there in . see william v. colvig, "indian wars of southern oregon," in _oregon historical quarterly_, iv, pp. - .--ed. [ ] by the "klamet" mountains, palmer refers to the chain lying north of klamath river valley, now usually spoken of as the siskiyou range. klamath river is described in farnham's _travels_, our volume xxix, p. , note . the trail into this region followed nearly the route of the southern pacific railway.--ed. [ ] the indians of southern oregon had always been disposed to molest white wayfarers. witness the troubles of jedidiah h. smith in , the massacre of the turner family in , and the attack on a cattle train in . after , the passage of gold-seekers to and from california intensified the difficulty, whereupon a long series of contests ensued, resulting in open wars, in which palmer bore an important part. the war of was terminated by a treaty (september ) secured by generals lane and palmer; that of was more serious, being participated in by regular troops as well as oregon militia. for palmer's relation to these wars see preface to this volume.--ed. [ ] for point adams see our volume vi, p. , note . the term clatsop was given for an indian tribe--_ibid._, p. , note . clatsop plains were first visited in the winter of - by members of the lewis and clark expedition, who erected a cairn for the making of salt, in the neighborhood of the present resort known as seaside. the settlement of this region was begun in by members of the methodist mission, reinforced by solomon h. smith and calvin tibbitts of the wyeth party, who had married daughters of the clatsop chief cobaway (lewis and clark spelled it comowool). j. w. perry took up a farm in , and several members of the immigration of settled on the clatsop plains. see "pioneer women of clatsop county," in oregon pioneer association _transactions_, , pp. - . these plains are composed of a sandy loam well adapted for fruit and vegetables, but especially suited to grazing, so that dairying is a leading industry of this region. cape lookout, in tillamook county, is a conspicuous headland. it was first sighted by heceta in , and named by captain meares in . see our volume xxviii, p. , note ; also our volume vii, p. , note . the point, however, which palmer designates as cape lookout, is in reality that called by the lewis and clark expedition "clark's point of view," but now known as tillamook head.--ed. [ ] the necanican river, called by lewis and clark the clatsop, has a roundabout course, as indicated by palmer, and drains the southern end of clatsop plains.--ed. [ ] saddle mountain, the highest point in clatsop county, shows three peaks as viewed from the columbia, and takes this name from its form. the aboriginal name was swollalachost. lewis and clark found it covered with snow during most of the winter season of - .--ed. [ ] for the tillamook (kilamook) indians see our volume vi, p. , note . mount rainier is noted in farnham's _travels_, our volume xxix, p. , note .--ed. [ ] on tillamook rock, a large boulder in the ocean, opposite tillamook head, a lighthouse was erected in - . it was a work of much difficulty, the engineers narrowly escaping being washed into the sea.--ed. [ ] palmer probably obtained his information of these indian traditions from celiast (or helen) smith, daughter of the clatsop chief, whose son silas b. smith has furnished much material for recent historical works. this story of the wreck of the ship carrying beeswax, differs slightly from the version given in lyman, _history of oregon_, i, pp. - . lyman conjectures that it may have been the spanish ship "san jose," carrying stores ( ) to san diego, california, which was never after heard from. some of the cakes of wax found bore the letters i. h. s.--ed. [ ] for young's bay see our volume vi, p. , note . skipanon is a small creek, a branch of which clark crossed on a log during his trip from fort clatsop to the seacoast. the site of fort clatsop was definitely determined by olin d. wheeler in (see his _trail of lewis and clark_, ii, pp. , ), and the oregon historical society in (see _proceedings_ for ). the plan of the fort was discovered by the present editor among the clark papers in . see _original journals of the lewis and clark expedition_, iii, pp. , . the river upon which the fort was located was known by the native name of netul, now called lewis and clark river, a tributary of young's bay west of young's river.--ed. [ ] young's river was called by lewis and clark kilhawanackkle, and is the largest stream in clatsop county. the falls are at the head of tidewater and flow over a black basalt cliff. the eastern tributary is the klaskanine river. see _original journals of the lewis and clark expedition_, iv, p. .--ed. [ ] for the history of this place see franchère's _narrative_ in our volume vi, and ross's _oregon settlers_ in our volume vii. the later history of fort george is sketched in farnham's _travels_, our volume xxix, p. , note .--ed. [ ] for cape disappointment and baker's bay see our volume vi, pp. , , notes , . chinook point was the site of a populous village of that tribe just west of point ellice, which is the southernmost promontory between gray's and baker's bay. lewis and clark found the village deserted, but in early astorian times it was populated--see our volumes vi, p. ; vii, p. .--ed. [ ] for peter skeen ogden see our volume xxi, p. , note . the united states government has recently chosen this site for a fort now ( ) in process of erection, to be known as fort columbia.--ed. [ ] astoria, as an american town, began in with the settlement of james welch, who defied the hudson's bay company officers to drive him from the site. the post-office was begun in , and a custom house two years later. in a town government was established, while twenty years later astoria was incorporated as a city. its population is now about ten thousand, with good prospects for a large growth in the near future.--ed. [ ] for james birnie see our volume xxi, p. , note .--ed. [ ] elbridge trask came to oregon in , apparently a sailor on an american vessel. he lived for a time at clatsop plains. probably his companion was captain alexander duncan, commander of the "dryad," and a friend of james birnie.--ed. [ ] for tongue point, which takes its name from its peculiar shape, see our volume vi, p. , note . gray's bay is noted in volume vii, p. , note .--ed. [ ] by swan bay, palmer intends that stretch of the river lying between tongue and catalamet points, which is more usually known as catalamet bay. the river is the john day (aboriginal name, kekemarke), which should not be confused with the larger stream of this name in eastern oregon. see our volume v, p. , note .--ed. [ ] for catalamet point see our volume vii, p. , note . the old village of the catalamet indians which was located near the present town of knappa, was visited by lewis and clark on their outward journey ( ); see _original journals of the lewis and clark expedition_, iii, p. . the stream was that now known as tillasqua creek.--ed. [ ] this mill was erected by henry hunt, one of the emigrants of , for the purpose of preparing lumber for the pacific market, especially that of the sandwich islands. see letter of tallmadge b. wood in _oregon historical quarterly_, iii, pp. - . later, salmon barrels were made at this place, the men employed at the task being the only settlers between astoria and linnton on the willamette; and sometimes they were summoned to serve as a sheriff's posse. see oregon pioneer association _transactions_, , p. . hunt's mill point is marked on the federal land office map of as being opposite the lower end of puget island.--ed. [ ] at oak point was made the first american settlement in oregon; see our volume xxi, pp. , , notes , . the stream on the south side is the clatskanie river, in columbia county, oregon, flowing southwest and entering the river opposite wallace island. for the origin of this word and its relation to the klaskanine river see h. s. lyman, "indian names," in _oregon historical quarterly_, i, p. . the mill stream of the northern bank is nequally creek in cowlitz county, washington.--ed. [ ] for a brief historical sketch of fort vancouver see our volume xxi, p. , note .--ed. [ ] colonel john mcclure came to oregon from new orleans some time before . in he settled at astoria, where he had a cabin on the site of the first astoria mill. he married a native woman, and his portion of the early town was known as mcclure's astoria. he is described as having been an old man in , and he had died before .--ed. [ ] the british ship of war "modesté," captain baillie commanding, first visited fort vancouver in july, . governor mcloughlin was offered no protection at this time; but the situation having grown more intense, the vessel was ordered to the columbia in october, , and remained to protect british interests until april, . the officers sought to conciliate the american pioneers, but there was on the whole little intercourse between the two nationalities. theatrical entertainments were planned and given in the winter of - , and a ball arranged by these officers was the occasion of an expression of a majority sentiment for the american cause. see oregon pioneer association _transactions_, , pp. , .--ed. [ ] for fraser river and vancouver island see farnham's _travels_, our volume xxix, pp. , , notes , .--ed. [ ] for puget's sound see _ibid._, p. , note . the first road over the cascades was built in , from olympia to walla walla.--ed. [ ] for gray's harbor see our volume vi, p. , note ; the chehalis river is described in farnham's _travels_, our volume xxix, p. , note .--ed. [ ] for the cowlitz settlement see our volume xxvii, p. , note .--ed. [ ] much has been written on the provisional government of oregon, which was shadowed forth in the action of , and actually established july , . consult j. quinn thornton, "history of the provisional government," in oregon pioneer association _transactions_, , pp. - ; j. henry brown, _political history of oregon_ (portland, ); james r. robertson, "genesis of political authority in oregon," in _oregon historical quarterly_, i, pp. - ; and h. w. scott, "formation and administration of the provisional government of oregon," _ibid._, ii, pp. - . palmer's brief synopsis is a summary of the revised organic law, drafted by a committee appointed by the legislature in june, , endorsed by popular vote on july , and put in operation august (see appendix to the present volume). this government continued until february , , when it was superseded by the territorial government provided by congress under act approved august , . the code of iowa laws appears to have been adopted because of the existence of a copy of iowa statutes in the country. see f. i. herriott, "transplanting iowa's laws to oregon," in _oregon historical quarterly_, v, pp. - .--ed. [ ] the legislature of erected four districts for the purpose of local government--_i. e._, tualatin (read for quality), yamhill, champoeg (read for shampoic), and clackamas. that of changed the title to counties and created four more--clatsop, polk, vancouver, and lewis. palmer gives their location properly.--ed. [ ] for the location of spaulding's mission see our volume xxviii, p. , note . william craig was a mountain man who came to oregon in . he married among the nez percés, and established a farm just east of the lapwai mission, where he had great influence with this tribe. in his land was reserved to him by treaty, the nez percés "having expressed in council a desire that william craig should continue to live with them, having uniformly shown himself their friend." in he was made lieutenant-colonel of washington volunteers, and in - , indian agent at walla walla.--ed. [ ] for the beginnings of portland see note , _ante_, p. . francis w. pettygrove was born in calais, maine, in . having engaged in mercantile business he carried a cargo of goods valued at $ , to oregon by sea, establishing a store at oregon city ( ). it was due to his wish that the newly-founded town near the mouth of the willamette received the name of portland. in pettygrove sold his interest in the portland town site, going to california, where he speculated in land at benicia. in he was one of the founders of port townsend, in washington.--ed. [ ] the town of linnton was founded in by m. m. mccarver and peter h. burnett, emigrants of that year, who supposed they had chosen a site that would be the head of ship navigation. they spent the first spring cutting the road to tualatin plains; but not finding linnton a profitable speculation, they removed to the plains and began farming. the town has continued to exist until the present, its population in being .--ed. [ ] the stream is the washougal river of clarke county, washington whose source is not as far north as mount st. helens, but near saddle peak in skamania county. a number of the immigrants of stopped here and established winter quarters, going on the next year to settle at puget sound. chief among these was colonel michael t. simmons, this title being bestowed because he was second in command of the caravan of . born in kentucky in , he had in removed to missouri where he built and ran a saw mill, which he sold to obtain his outfit for the oregon journey. he explored the puget sound region in the spring of , settling at tumwater, where he died in . simmons is known as the father of washington; he was sub-indian agent for several years, and much concerned in building up the settlement.--ed. [ ] for this landmark see our volume xxi, p. , note .--ed. [ ] for the cascades see our volume xxviii, p. , note .--ed. [ ] this is an alternate name for deschutes river, for which see _ante_, p. , note .--ed. [ ] for this fort see our volume xxi, p. , note . the chief of the wallawalla was peupeumoxmox, or yellow serpent. he early came under missionary influence, and sent one of his sons to the willamette to be educated under methodist influences. this young man was christened elijah hedding, for a bishop of the church. he remained with the missionaries for over six years and acquired a command of english. in the autumn of a number of cayuse, nez percé, and wallawalla chiefs decided to visit the california settlements in order to trade for cattle. from sutter's fort they made a raid into the interior, capturing some horses from a band of thieves. these animals were claimed by the spanish and american settlers while the indians maintained that they were their own property. in the course of the dispute elijah was shot and killed. the oregon indians were greatly exasperated by this incident, threatening to raise a war-party against california, or to make reprisal upon any or all whites. the affair was quieted by the hudson's bay agent and the missionaries, but was undoubtedly one of the causes of the whitman massacre. yellow serpent took no part in this latter event, but was active in the war of , in which he perished while a hostage in the hands of the whites. john augustus sutter was a german-swiss born in . after serving in the franco-swiss guards ( - ) he came to america ( ) and embarked in the santa fé trade ( - ). in he started for california, going via oregon, the sandwich islands, and alaska. arriving in san francisco bay ( ) he secured from the mexican government a concession on the sacramento river, where he built a fort ( - ) and named his possessions new helvetia. in sutter bought the russian establishment known as ross (see our volume xviii, p. , note ), whose materials he used in fitting up his own fort. sutter was friendly to the american cause, and received emigrants with hospitality. he aided frémont in the revolt against mexican authority. in gold was discovered upon his property. he profited but little by this event, however, and became so poor that he was pensioned by the california legislature. about he went east to live, dying in washington, d. c., in . h. h. bancroft secured from sutter, by means of interviews, a detailed narrative of his career, and the manuscript is now in the bancroft library, purchased for the university of california in november .--ed. [ ] ellis (or ellice) was the son of bloody chief. having been educated by the hudson's bay company, he had acquired much influence with his tribe. in , being then about thirty-two years old, he was, at the instigation of dr. elijah white, indian sub-agent, chosen head chief of the nez percés, and ruled with considerable tact and wisdom, being favorable to the whites. during the cayuse war of , ellis was reported as hunting in the buffalo country; later, it was stated that having gone with sixty braves to the mountains for elk, they all perished from an epidemic of measles. lawyer was chosen as head-chief in ellis's place.--ed. [ ] for the location of whitman's mission, see our volume xxviii, p. , note .--ed. [ ] for the blue mountains see our volume xxi, p. , note . the stream was probably touchet river, the largest affluent of the walla walla. rising in the blue mountains in columbia county, washington, it flows northwest to dayton, then turns southwest and south, debouching into the walla walla at the present town of touchet.--ed. [ ] for this stream see farnham's _travels_ in our volume xxix, p. , note .--ed. [ ] see appendix.--palmer. [ ] for the history of the printing press in use at this mission, see our volume xxviii, p. , note . the first book in the nez percé language was a little compilation of texts, consisting of eight pages. the translation of matthew was printed at lapwai; that of john was later published by the american bible society.--ed. [ ] for this mission and its missionaries see our volume xxvii, p. , note . the farmer at lapwai mission was isaac n. gilbert, who was born in new york ( ). he early emigrated to illinois, and came to oregon with the party of . late in he proceeded to the willamette valley, and settled near salem, where he was county clerk and surveyor, dying in . see oregon pioneer association _transactions_, , pp. , .--ed. [ ] for these missions see de smet's reports in our volumes xxvii, p. , note ; xxix, p. , note .--ed. [ ] for this landmark see our volume xxviii, p. , note .--ed. [ ] for the crow indians see our volume v, p. , note .--ed. [ ] mike's head is probably a popular name for the rush of the equisetum species, known as "horsetail." the creek is known by the french form of this plant--à la prêle; it is a tributary of the platte, in converse county, wyoming.--ed. [ ] hiram smith was born in new york, early emigrated to ohio, and crossed the plains with the party of . having returned with palmer he remained in the states until , coming again to oregon with a large drove of cattle and horses. he settled at portland, and became wealthy and influential. he crossed again to the states, returning in --in all, making six journeys of this character. he died in san francisco in .--ed. [ ] the oregon immigration of was not as large as that of the previous year. apparently reliable estimates make the number about two thousand that finally reached that territory. for a description of these emigrants see francis parkman, _the oregon trail_ (boston, , and later editions), chapters i, vi, vii. see also an itinerary of the journey by j. quinn thornton, _oregon and california_ (new york, ). among the california emigrants of this year were the ill-fated donner party, many of whom perished in the sierras.--ed. [ ] probably this was fabritus r. smith, a native of rochester, new york ( ). settling at salem, oregon, he was in the state legislature of , and still living at salem in .--ed. [ ] this unfortunate victim of the pawnee indians was edward trimble of henry county, iowa. see another account of his death in _niles' register_, lxx, p. .--ed. [ ] on this return journey, palmer took the st. joseph trail, which branched off from the usual oregon trail near the little blue, and followed the valley of the great nemaha through the iowa, sauk, and fox reservation to the missouri opposite st. joseph. an excellent map of nebraska and kansas, presumably issued in , but lacking name of place or publisher, plainly indicates this road. for the removal of these indians to the reservation in northeast kansas and southeast nebraska see our volume xxviii, pp. , , notes , . the agency was known as the great nemaha; it was situated near the mission begun ( ) by the presbyterians under the direction of rev. s. m. irvin. he crossed from missouri with the indians, and established his mission twenty-six miles west of st. joseph, not far from the site of the present highland, doniphan county, kansas. at the time of palmer's visit, irvin was being assisted by william hamilton, and a mission school was in course of establishment.--ed. [ ] for st. joseph see our volume xxii, p. , note . this was not a mission site, but a trading post. the first church built ( ) was the presbyterian, under the care of rev. t. s. reeve.--ed. [ ] for a contemporary notice of palmer's arrival in st. louis, see _niles' register_, lxx, pp. , .--ed. [ ] since this letter was written, the forty-ninth parallel of north latitude has been established by treaty as the boundary line between the governments of great britain and the united states--except that portion of vancouver's island south of °, which continues under the jurisdiction of great britain.--palmer. [ ] flowers have been seen in the last winter, and winter before, from the th of january.--m. w. [ ] the first creek is that now called alpowa, in asotin and garfield counties, washington; it is a southwestern tributary of the lewis. tukanon river, in columbia county, washington, the largest southern affluent of the lewis west of lewiston, was known by lewis and clark as the kimooenem.--ed. [ ] at present it will require one man to a thousand in the winter to protect from wolves. but strycknine is a sure poison with which to destroy them.--m. w. [ ] these rivers have all been noted in the text, _ante_. by "rose" the author intends rogue river.--ed. [ ] clover (native) is more abundant in june.--m. w. [ ] probably what are called species here, are in many cases only a variety of the same species.--m. w. [ ] this clause was introduced into the "organic law" of the provisional government in order to secure the hudson's bay traders, and hold their allegiance to the newly-established league of order. a copy was sent to governor mcloughlin, who having examined the document and finding "that this compact does not interfere with our duties and allegiance to our respective governments," wrote "we the officers of the hudson's bay company, consent to become parties to the articles of compact." see h. h. bancroft, _history of oregon_, i, p. , note .--ed. [ ] for note on long, see de smet's _oregon missions_ in our volume xxix, p. , note .--ed. * * * * * * transcriber's note: - the words 'pa-pa' and 'papa' have very different meanings. - the words 'yamhill' and 'yam-hill' are used in different contexts; therefore remain unchanged. - the words 'ya-ka' and 'yaka' have very different meanings. produced from scanned images of public domain material from the google books project.) _the new jersey law journal published monthly_ volume xlv february, no. _some reminiscences, mostly legal_ _by hon. frederic adams, los angeles, cal._ iv. certain courts and lawyers. ever since my boyhood the drama of the courtroom has interested me more than the drama of the theatre. i well remember my introduction to litigated business. i was a youngster on a visit to boston when some one took me to a court where a patent case was on trial. i was duly impressed by the imposing personality of the judge, but my attention was soon fixed by the witness on the stand, whom i happened to know, for my father had once introduced me to him. he was professor james jay mapes, of newark, new jersey, a chemist and inventor, one of whose many activities was the manufacture of fertilizers. i had visited one of his factories, somewhere between newark and elizabeth, and was surprised to see him at boston in the rôle of a mechanical expert in a patent case. as the examination carefully proceeded i concluded, with the rashness of inexperience, that the examiner was a very dull man, for he seemed so slow to get an idea. what i then mistook for dullness i now recognize as professional skill, employed by counsel to unfold to the court and jury the details of a complex mechanism. i know now more about that case than i did then, for, rather to my surprise, i have recently found a report of it in the first volume of fisher's "patent cases," at page . the time was august, , when i was not quite eleven years old. the courtroom was that of the circuit court of the united states for the first circuit. samuel colt was plaintiff. the massachusetts arms company was defendant. the counsel for the plaintiff were e. n. dickerson, c. l. woodbury and g. t. curtis, and for the defendant r. a. chapman, g. ashmun and rufus choate, and the judge was mr. justice levi woodbury of the supreme court of the united states, who was then testing the validity of the patent for the colt revolver. the charge is reported in full. the verdict was for the plaintiff. judge woodbury was a new hampshire man of some note, then in his sixty-second year, called by thomas h. benton "the rock of the new england democracy," who had been senator of the united states from new hampshire, and a member of the cabinets of jackson and van buren, and, on the nomination of president polk, had succeeded judge story as a member of the supreme court of the united states. the trial of the case in which i saw him was one of his last official duties, for he died in the following month. he was succeeded by benjamin r. curtis, of boston, on the nomination of president fillmore. while i was at the harvard law school in - , richard h. dana was united states district attorney at boston, and i often saw him at cambridge, where he lived. his book, "two years before the mast," was and is a favorite of mine. i suppose that i have read it twenty times, and i hope that the boys of this day read and love it. it is in a class by itself. there is, i think, not in english, and probably not in any language, another account of seafaring life written in the forecastle by one of the crew, who was also a gentleman and a scholar and master of a charming style. the veracity and spirit of the narrative have made it a classic both here and in england. in california it is particularly valued, for dana was one of the pioneers and had sailed through the golden gate on the "alert" in the winter of - , many years before the mexican war and the discovery of gold, when san francisco as yet was not. when, at the end of the visit, the good ship floated out on the tide, herds of deer came down to the northerly shore to watch the unusual sight. dana left college and went on this voyage to cure an affection of the eyes. after his return he graduated at harvard in the class of and became a lawyer. mr. dana was qualified by nature and training to become a leading figure in the public life of this country, and his ambition was that way, but the cards ran against him. as goldsmith said of burke, he was "too nice for a statesman, too proud for a wit," high-strung and sensitive as a race-horse, well bred and distinguished in bearing, a clear, graceful and forcible speaker, an admirable advocate, and an accomplished jurist. one of his greatest professional efforts and triumphs was his argument before the supreme court of the united states in the consolidated prize cases, when he had to make it clear to the court how it was that the stupendous struggle in which the country was engaged could be a-war with belligerent rights as between ourselves and other nations, and a local insurrection as between ourselves and the south. it may be remembered that, at the centennial anniversary of the battle of lexington, mr. dana delivered the oration. it begins with the words, "how mysterious is the touch of fate which gives immortality to a spot of earth, to a name." it is a noble commemorative address. concord has always plumed itself because it had a real fight, while the lexington men only stood up to be shot at and did not damage the english. as the anniversaries were approaching and good-natured rivalry was in the air, concord issued a prospectus of some kind, which did not suit mr. dana's fastidious taste, and he said to judge hoar, of concord: "how is it, judge, that you folks at concord have sent out such a shabby, badly-written paper? it is positively ungrammatical." "o," said the judge, "you know, dana, at concord we always did murder the king's english." while mr. dana was united states district attorney he tried the last slave-trading case. the vessel was the "margaret scott," which was fitted out, i think, at new bedford, but did not actually embark on the voyage. the trial was before mr. justice nathan clifford, of the supreme court of the united states. i heard mr. dana's summing up and the charge to the jury. judge clifford was a tall man of great girth. he stood throughout his admirable charge, which took him an hour to deliver. after about half an hour he told the jury that they might be seated. governor hoadley, of ohio, who was a friend of judge swayne of the united states supreme court, once told me this story, which he got from judge swayne. judge grier, when on the bench sat next to judge swayne and, during the latter part of his service, was crippled and dozed a good deal, and sometimes used to annoy judge swayne by speaking to him in a stage whisper. a prize case was on trial and there was discussion about belligerent rights, which one of the counsel pronounced belli_ge_rent. the novelty of the pronunciation roused judge grier, who said to judge swayne quite audibly: "brother swayne, brother swayne, judge clifford is the belli_ge_rent member of this court." in , while at boston, i heard part of the argument in the remarkable case of hetty h. robinson v. thomas mandell, executor and others. the case was tried before judge clifford in the circuit court of the united states. sidney bartlett and benjamin r. curtis (who was then an ex-judge of the supreme court of the united states), were leading counsel for the complainant, and benjamin f. thomas, an ex-judge of the supreme court of massachusetts, was leading counsel for the respondents. the complainant, who is better known to us by her married name of hetty green, had filed her bill setting up a special contract between herself and her aunt, sylvia ann howland, for an exchange of mutual wills, and that neither should make any other will without notice to the other and a return of the other's will. miss howland had died, leaving a will not in favor of hetty, but largely to charity. the respondent, mandell, was her executor. the case is reported in clifford's circuit court reports, page . judgment was for the respondents, judge clifford saying, in his decision: "in this case there was no competent evidence to show that there was any agreement as to the making of mutual wills, and there was nothing on the face of the instruments to warrant any such conclusion." mrs. green, whom i saw for the first time, was in court with her husband, a large, dressy man, looking like an english guardsman. much testimony had been taken. there was a question of forgery, and enlarged photographs of signatures were standing about. judge curtis spoke for two days, one day on the facts and one day on the law, a length unusual for him, for he was generally brief. i heard mr. bartlett's opening and part of judge curtis's discussion of the facts. mr. bartlett was a great lawyer, but not, i should say, a very good speaker. his reputation was for condensation and concentration; for making a direct thrust at the central point, with small regard for introductory and collateral matters. someone, i think a judge of the massachusetts supreme court, said that mr. bartlett's mental operations on matters of law bore about the same relation to those of the average lawyer that a book of logarithms does to a common school arithmetic. he continued in active practice until about the age of ninety, made a large fortune, and was famous for his high charges. he was no recluse, but a club man and citizen of the world. this was not the first time that i heard judge curtis. to follow any argument of his was an ever fresh delight. i remember as though it were yesterday the neatness and felicity with which, in the case just mentioned, he dismissed one of several propositions submitted by his adversary, saying, with his usual dignity and composure: "i now come to another of this series, i believe it is the ninth. like all of them, it is not pleaded; like most of them, it is not proved; and, like each and all of them, it would be totally immaterial if it were both pleaded and proved." and then, in his last sentence, with exquisite tact, he lightly touched a certain string: "on one side of this case stands the complainant, with a large fortune; on the other side is a charity; but this court observes the divine injunction, 'thou shalt not respect the person of the poor, nor honor the person of the mighty, but in righteousness shalt thou judge thy neighbor!'" my friend, mr. frank e. bradner, of the essex bar, has referred me to some lines in "the professor at the breakfast table" which speak of judge curtis, who was a classmate of dr. holmes: "there's a boy--we pretend--with a three-decker brain, that could harness a team with a logical chain; when he spoke for our manhood in syllabled fire, we called him 'the justice,' but now he's 'the squire'." he who runs may read. the class of ' had its twenty-five years meeting, always a great event, in . judge curtis was then on the bench and it was probably then that he spoke for the manhood of the class. he resigned his office in september, , and became a "squire." judge curtis was a master of the difficult art of nisi prius duty. no one could be more courteous, patient and impartial, better equipped with law, more accurate as to fact, or clearer in his rulings and instructions. any judge who has spent several of the best years of his life in learning how easy it is to try badly a case with a jury and how hard it is to do it well, will be interested to read the passage which i quote from a private letter written by judge curtis to mr. webster after he had been on the bench for about a month: "i presume you will agree with me that there is no field for a lawyer which, for breadth and compass and the requisitions made on all the faculties, can compare with a trial by jury; and i believe it is as true of a judge as of a lawyer that, in the actual application of the law to the business of men, mingled as it is with all passions and motives and diversities of mind, temper and condition, in the course of a trial by jury what is most excellent in him comes out and finds its fitting work, and whatever faults or weaknesses he has are sensibly felt." the great event of his judicial career was his dissenting opinion in the case of dred scott v. sandford, ( howard , dec. term, ), in which he asserted the constitutional power of congress to prohibit slavery in the territories. this was the doctrine of webster and mason and of the coming republican party. mr. lincoln, in his debate with douglas, carried this dissenting opinion with him. there were nine judges, each of whom filed an opinion. five judges were from slave states and were probably themselves slave-holders. chief justice taney wrote an opinion which is called "opinion of the court," but may be more accurately described as the opinion of chief justice taney and judge wayne, for judge wayne, who also filed a separate opinion, was the only one of the six judges voting with the chief justice who concurred in all his points, reasonings and conclusions. even at this day one cannot read without a shudder the chief justice's unflinching declaration as to the helpless and hopeless status of the negro. judges mclean and curtis filed dissenting opinions. there are complexities in the record which make it difficult for even a lawyer to determine just how much of the opinions filed by a majority of the court is decision and how much is _dictum_. the chief justice withheld from the files the so-called "opinion of the court," and made additions and alterations to the extent of eighteen pages, in evident answer to the filed dissenting opinion of judge curtis, and instructed the clerk not to furnish a copy of the "opinion of the court" to anyone without the permission of the chief justice before it was published in howard's "reports," so that judge curtis, on application to the clerk, was unable to obtain the amplified opinion. there ensued a correspondence between judge curtis and the chief justice in which judge curtis kept his temper admirably and the chief justice nearly, if not quite, lost his, and did so, i think, because he felt that he was in the wrong. judge curtis, by leaving office in , at the age of forty-seven, surprised his friends and the country. there were two reasons for it. the state of the court was such that he did not feel comfortable in it. this does not refer to his controversy with the chief justice, to whose memory he afterwards paid a cordial tribute. indeed, it may be doubted whether he would have felt much more comfortable as a member of the court under the reign of lincoln than he was under the reign of buchanan. he was no party man and did not belong in either camp. his all-sufficient and avowed reason for resigning was that he could not live on a salary of $ , , and felt bound to secure for himself and his family what burns calls "the glorious privilege of being independent." this purpose was amply realized. he went at once and inevitably to the front rank of the american bar and remained there for seventeen years, during which time his professional earnings amounted to about $ , . this was not in our day of big business, when members of the bar, who are great men of affairs, but not necessarily great lawyers, receive, or are supposed to receive, rich rewards for services in the organization, manipulation and combination of colossal corporate interests. the annual income of judge curtis was not much over $ , , but, like mercutio's wound, it was enough, it would serve, and it was fairly earned in the regular practice of his profession, at his office desk, in the trial of cases, and in writing opinions on important questions submitted to him from all parts of the country. he stood so high that his written opinion would often be accepted by both sides of a controversy as the veritable voice of the law itself. i first saw and heard judge curtis at new haven in , in the trial of a suit in equity brought in the circuit court of the united states for the second circuit by the lowell manufacturing company against the hartford carpet company for an injunction and accounting. judge curtis led for the complainant, and the special interest of the case was that he had against him an opponent worthy of his steel, a man five years his senior, of different race, creed, politics and temperament, charles o'conor, the brilliant leader of the bar of new york. the two men were evidently no strangers to one another. judge curtis had said at a dinner party that he regarded mr. o'conor's management of the forest divorce case as the most remarkable exhibition of professional skill ever witnessed in this country. in the case which i heard at new haven the associate counsel were able men, mr. edwin w. stoughton for the complainant and mr. george gifford for the respondent, both prominent patent lawyers of new york. the judges were samuel nelson of the supreme court of the united states and william d. shipman of the district court. it was pleasant, after the crudities of county practice, to see the mutual courtesy of the two leaders. i happen to remember a few gracious words of judge curtis: "and such rights, as no one knows better than the admirable lawyer on the other side, do not lie in covenant, but do lie in grant." the argument was not fully intelligible to me, for it dealt largely with considerations arising out of written contracts with which i was not familiar, but it was entertaining and instructive to watch the two men. there came on each side a grateful gleam of fun. while mr. stoughton was speaking of the terms of a contract, judge curtis, who sat near him, interjected the words: "and no longer." mr. o'conor in his argument laid hold of this and said: "why, you might as well say, 'as long as grass grows and water runs,' 'and no longer'." i recall only one precedent for such an expression. it comes from a land from which we get very little law, though it has given us some lawyers. it is a verse of an old irish song: "then pat was asked would his love last, and the chancel echoed with laughter, o, o yes, said pat, you may well say that, to the end of the world and after, o." mr. gifford, in his argument, had referred to a certain united states statute which, as he said, the supreme court had found difficulty in construing. mr. curtis, in his closing argument, said: "that statute reminds me of a story of a learned divine of this state who once preached a sermon upon a difficult text in one of st. paul's epistles, and said, finally: 'my brethren, i have now given you the results of my most careful study and reflection upon this passage of scripture, but i feel that, in justice to myself, i ought to say that i very much wish that the apostle had not used those words'." when mr. o'conor, who followed his junior, mr. gifford, took his seat after speaking for five hours, the afternoon was getting late, and i heard judge curtis say to mr. stoughton: "i have to answer more than seven hours of solid argument. i cannot do it in two hours, and shall ask that the case go over until to-morrow." it was so ordered. in the evening he said to a friend of mine: "nothing has been said on the other side which cannot be answered. the question is whether i can do it." he spoke the next day for two hours and twenty minutes and closed the case. this litigation resulted in a victory for mr. o'conor and his associates. in july, , judge nelson wrote a short opinion dealing with contractual rights and gave judgment for the hartford carpet company. (case no. , federal cases, page , fisher's patent cases, ). the judges and counsel, with the juniors from the boston and hartford offices, dined together every day at the new haven house, and a congenial company it was. mr. o'conor, when he was at liberty, would put on the back of his head the silk hat which he always wore and say: "who's for a walk?" and go off on a tramp under the elms. he was a spare, active man, of nervous temperament and great vitality. in new york he lived at fort washington, on the hudson, and used to rise early, walk to his club on fifth avenue, breakfast there and then go down to his office. the keynote of judge curtis was serenity, that of mr. o'conor was intensity. beginning to tread law at the age of sixteen, mr. o'conor fought his way to the lead, an achievement which no one who knows new york city will be disposed to underrate. in the fine old common law phrase, he "made war for his clients." he was tremendously combative within the rules of the game, and absolutely fearless and independent. his opinions were often extreme and sometimes eccentric. i heard him say at the new haven house, in the middle of the war for the union, to a man who asked for political advice: "take the bull by the horns. every dollar spent and every life lost in this war is just so much thrown into the great deep." it was like him to offer his professional services to jefferson davis in his evil day. he prophesied or hoped that "some future tacitus" would arise to pronounce the verdict of history on chief justice taney as _ultimus romanorum_. there was a noble side to mr. o'conor's nature. with all his law he was an idealist. in accepting some now-forgotten nomination to the presidency, he wrote this ringing sentence: "to spend in one's allotted place a blameless life of honest effort, and at its end to perish nobly contending in the thermopylæ of an honest cause, has always been to me the perfection of a happy individual destiny." let this be his epitaph. it remained for judge curtis, a few years later, to perform a professional duty which made him for the second time a prominent figure in the law and politics of the country. this was his opening argument for the defense in the impeachment trial of president johnson. in a private letter written during that trial, he said: "there is not a decent pretense that the president has committed an impeachable offense." most intelligent persons will now agree with him. his argument is a masterpiece of luminous reasoning and exposition, and concludes with this grave warning: "it must be unnecessary for me to say anything concerning the importance of this case, not only now, but in the future. it must be apparent to everyone in any way connected with or concerned in this trial that this is and will be the most conspicuous instance which ever has been or can ever be expected to be found of american justice or american injustice, of the justice which mr. burke says is the great standing policy of all civilized states, or of that injustice which is sure to be discovered and which makes even the wise man mad, and which, in the fixed and immutable order of god's providence, is certain to return to plague its inventors." * * * * * a landlord is held to be deprived of his property without due process of law by a statute giving the tenant the privilege of holding over at pleasure at expiration of his lease, in hirsh v. block, fed. , annotated in a.l.r. , on the constitutionality of rent laws. maxwell v. pinyuh. (n. j. supreme court, jan. , ). _new trial--rules of supreme court--orders of judges--relaxation of rules._ case of louise sylvester, plaintiff, against george s. pinyuh, defendant. on motions to vacate certain rules and orders. mr. harry r. cooper for plaintiff. mr. william j. hanley, mr. o. j. pellet and mr. harlan besson for defendant. heard before justices trenchard, bergen and minturn. per curiam: this is a motion by the defendant to vacate certain rules heretofore made in the above entitled cause, and a counter motion by the plaintiff to strike out the restraint imposed upon her in a rule to show cause granted by mr. justice minturn on the th day of october, , and for permission to perfect her proceeding for a new trial. the facts are substantially as follows: in september, , the case (a supreme court issue) was tried in the monmouth pleas on an order of reference made by a justice of the supreme court. the jury found a verdict for the defendant, and the plaintiff, on the d day of september, applied to the trial judge for a rule to show cause why a new trial should not be granted, which order was allowed by the trial judge and was made returnable before him on the th day of october, . on the return day of the rule, the attorney for the defendant appeared before the judge and objected to his hearing the rule on the ground that, it being a supreme court issue, the rule must be heard by the supreme court. judge lawrence reserved decision in the matter, and thereafter came to the conclusion that the action had become a common pleas case, and that the rule could properly be heard before him, and fixed october th, , for the hearing of same. in the meantime defendant's attorney procured from mr. justice minturn a rule to show cause, returnable before the supreme court on the first tuesday of november, , why judgment should not be entered in favor of the defendant against the plaintiff on the postea, and why the trial judge should not sign the postea, and restraining the plaintiff from further proceedings until the further order of the court. a copy of this rule was served upon judge lawrence and he thereupon concluded that the rule must be heard before the supreme court, and he signed the postea. plaintiff's attorney was evidently under the impression that, after the postea had been signed by judge lawrence, the object of the rule allowed by justice minturn was served, and that the stay contained therein was no longer effective and did not restrain him from taking the necessary proceedings to bring on the argument of the rule before the supreme court. he accordingly obtained from judge lawrence (who evidently entertained the same view) a rule amending the previous rule granted by him to the extent that the argument should be heard before the supreme court on the first tuesday of february. apparently, because of the uncertainty on the part of plaintiff's attorney as to whether the rule originally granted by judge lawrence, and the reasons on which plaintiff rested her motion for a new trial, should be filed in the office of the clerk of the supreme court, or in the office of the clerk of the court of common pleas, these papers were withheld from the files and were not filed within the ten days required by the rules of this court. a copy of the reasons and rule were, however, immediately served on the attorney for the defendant. depositions were also taken by the plaintiff under the rule. on the th day of december, , plaintiff's attorney obtained from mr. justice kalisch a rule permitting plaintiff to file the rule to show cause allowed on the d day of september, as amended by the rule made by judge lawrence on the th day of november and the reasons on which plaintiff based her motion for a new trial, with the same force and effect as if the same had been filed within the time limited by law, and, immediately after that rule was granted, filed the rule made by judge lawrence and the plaintiff's reasons in the office of the clerk of the supreme court. a copy of the depositions which were taken under the original rule granted by judge lawrence were also served on the defendant's attorney. no state of the case has yet been prepared and served, but it is stated to be the plaintiff's intention, should the court permit her to do so, to immediately prepare and print her case and bring on the rule for argument at the february term of the supreme court. the defendant moves to vacate the rule of september d, and the rule of november th, amending it; to vacate the rule allowed by justice kalisch permitting plaintiff to file such rules and the reasons. the plaintiff moves to vacate the restraint imposed upon her by the rule allowed by justice minturn october , , and also moves to be allowed to perfect her proceedings for a new trial, and to bring on the same for argument, according to the rules and practice of the court, at the february term. we think the defendant's motion should be denied and the plaintiff's motions granted. it is of course apparent, and the plaintiff freely admits, that the rules to show cause why a new trial should not be granted were irregular and defective and that they have not been brought on in accordance with the rules of the supreme court; but evidently the sole reason therefor was the confusion existing, both in the mind of plaintiff's attorney and that of the trial judge, as to whether the application for a new trial should be heard before the trial judge or before the supreme court. it seems not to be disputed that substantial reasons exist for giving consideration to plaintiff's application for a new trial. in granting the rule to show cause why a new trial should not be granted the trial judge evidently felt that the plaintiff should be given her day in court upon the reasons which were presented to him why the verdict of the jury should not be set aside. we feel that this court should not allow the technical infirmities in the proceeding to deprive the plaintiff of an opportunity to be heard when, by a suspension or relaxation of its rules, a possible injustice may be avoided. rule of the supreme court provides: "the time limited in these rules for the doing of any act may, for good cause, be extended (either before or after the expiration of the time), by order of the court, or a justice or a judge thereof." rule provides: "these rules shall be considered as general rules for the government of the court and the conducting of causes; and as the design of them is to facilitate business and advance justice, they may be relaxed or dispensed with by the court in any case where it shall be manifest to the court that a strict adherence to them will work surprise or injustice." we therefore deny defendant's motion to vacate the rules heretofore obtained by the plaintiff to perfect her proceedings for a new trial, and we grant the plaintiff's motion to vacate the restraint imposed in the order of mr. justice minturn, and also grant the plaintiff permission to perfect her proceedings for an application for a new trial, and also permission to bring the same on for argument at the february term of this court, according to the rules of this court. the relief thus granted to the plaintiff will be upon terms that she pay the defendant costs upon these motions; all other costs to abide the event. state v. gross. (n. j. supreme court, jan., ). _city ordinance against disorderly conduct--the disorderly act--removal of persons from railroad train._ case of the state against jacob gross, prosecutor. on certiorari dismissing conviction. mr. charles w. broadhurst for the rule. mr. joseph j. weinberger for prosecutor. argued before justice minturn by consent. minturn, j:. the prosecutor of this writ was convicted before the recorder of the city of passaic for violating section of an ordinance of that city which provides as follows: "that any person, who shall in any place in the city of passaic, make, aid or assist in making any improper noise, riot, disturbance or breach of the peace, or shall behave in a disorderly manner, or make use of obscene or profane language ... shall each be liable to a penalty of five dollars for every offense." the violation complained of was that, while he was a passenger on an erie railroad train, and while the train had stopped at passaic, he refused to remove his baggage from between the seats to the baggage compartment at the request of the conductor, as a result of which the prosecutor became noisy and boisterous, and the conductor thereupon caused the removal of the prosecutor and his baggage from the car, and turned him and it over to a local police officer. he was thereafter prosecuted as a disorderly person and convicted of that offense. various legal grounds are advanced as a basis for vacating the conviction. one only i deem fatal to its validity. the ordinance in question was intended to apply to public places within the city for the purpose of suppressing disorderly conduct therein, and, while in a limited sense a steam railroad car is a quasi public place as between the state and the railroad, it cannot be reasonably construed as furnishing such a public place within the contemplation of the local legislative body, when they passed this ordinance. a similar contention was before this court in state v. lynch, n. j. l. j. , where it was held that a saloon, although a public house in contemplation of law, is not a "public place" within the contemplation of the provisions of the disorderly act. the words "public places" in this connection were held to be "such places as are in general use for travel by all citizens, and in which all have at all times an equal right of passage and repassage." adopting this rule of construction the railroad coach in question was not a "place" to which the jurisdiction of the city can be said to extend, and the word "place," therefore, in this connection, must be held to be equivalent to "public place." that this is so is made manifest from the context of the section of the ordinance invoked upon the doctrine of _noscitur a sociis_. thus, the person charged must not only be in "a place in the city of passaic," but he must "make, aid or assist in making any improper noise, riot, disturbance or breach of the peace, or shall behave in a disorderly manner or make use of obscene or profane language." this enumeration of specific acts of misdemeanor connotes, generally speaking, the ordinary offense of disorderly conduct, such as is condemned in our disorderly act; and, as has been observed, such disorderly conduct, to be the subject of public prosecution, must occur in a "public place," within the jurisdiction of the city magistrate, and the environment of the city. a travelling car manifestly is not such a public place. cyc. and cases. the fact that the prosecutor was noisy in asserting his rights can make no difference in the result, for we may, from experience, judicially notice the fact that the inter-urban railroad train presents no suitable accommodation for one inclined to indulge in either introspection or somnolence. therefore, an ordinary conversation in a major key when indulged, as was the case here, between a conductor, with a book of railroad rules in his hand emphasizing his duty, and a protesting commuter with an innocuous bag, the owner of which attempted to vindicate in yiddish-english the rights of the american travelling public, might be the means of provoking an innocent mental diversion for the benefit of the curious passengers, but could hardly be said to evolve the serious accusation of disorderly conduct in a public place, within the meaning of the ordinance. a discussion in an elevated key on a railway carriage, whether it concern a bag or the suspected contents of a bag, is not an unusual episode in everyday american railway life; nor can it be said to be without its compensation and exhilarating effect upon the general body of passengers, so long as it does not assume the intolerant form of vulgarity, or obscenity, and thus warrant the ejection from the train of the malodorous disputant. the fact, of course, is that the voluminous resonance of a conversation cannot be utilized as a standard to guage either its criminality or its literary value, and yet debates in the halls of legislation, in the courts of justice, not to speak of fulminations from the pulpit, are often measured by the volume of vocalization and the density of lung power behind them. if precedent were invoked from the classics, we have it in "sweet auburn;" where, in fancy, we hear the "loud laugh that spoke the vacant mind;" and goldsmith's pen picture has placed the vociferous schoolmaster among the immortals, whose "words of learnèd length and thundering sound amazed the gazing rustics ranged around." all of this, and more, is familiar experience on the railway train, and thus far has escaped the proscription of the authorities. in mullen v. state, l. , the prosecutor in asserting his rights at a schoolmeeting became, in the language of this court, "quite noisy and excited." his conception of public duty led him to indulge in what the complainant called "loud language," and for this he was prosecuted under the provisions of the disorderly act, which prohibits in "public places" the use of "loud, offensive or indecent language." there was no proof of the indecency or offensiveness of his speech, and this court held that the uttering of "loud" language was not enough to sustain the complaint. these considerations, without reference to the other objections presented, lead me to conclude that the judgment of conviction should be vacated, and such will be the order. state v. caprio. (before hon. fred g. stickel, jr., as magistrate. nov. , ). _prohibition enforcement act--search warrant--seizure of liquor permits and certain liquors._ case of state against luigi caprio. on application to restore property and liquor taken under search warrant issued under the prohibition enforcement act. before hon. fred g. stickel, jr., a judge of the court of common pleas, acting as magistrate under the prohibition enforcement act. mr. anthony r. finelli for application. mr. j. henry harrison, prosecutor of the pleas, opposed. stickel, jr., magistrate: on october rd, , acting as magistrate under the prohibition enforcement act, i issued a search warrant directed to richard roe, authorizing a search of the drug store, cellar and rooms attached at bloomfield avenue, belleville, new jersey, and a seizure of the liquor there found, together with all vehicles, fixtures, containers, utensils, machines, contrivances, or paraphernalia whatsoever, there found used or intended to be used in the illegal keeping, manufacture, transportation or sale of liquor. this warrant was based upon an allegation by nick takush that he believed liquor was unlawfully possessed in such place, and that he based his belief upon the fact that he had on several occasions purchased whiskey at that address for beverage purposes, and on the th day of september, , had purchased two gallons of alcohol there for beverage purposes. acting under this warrant, the sheriff, through under-sheriff alfred c. walker, returned the body of luigi caprio, admittedly the owner of said bloomfield avenue and of the drug store, cellar and rooms attached. the said under-sheriff also filed an inventory showing that he had seized under said search warrant a two gallon can labeled, "columbia spirits;" a five gallon can labeled "alcohol;" one bottle labeled "columbia spirits;" some liquor permits; one five gallon can, full, labeled, "columbia spirits;" one bottle labeled "aromatic elixir;" one bottle labeled "alcohol." application is now made under sections and of the prohibition enforcement act to restore the liquor and property so taken, on the ground that there was no probable cause for believing the existence of the grounds on which the search warrant was issued, and on the further ground that the liquor and chattels taken upon such search warrant are not the same as referred to in the search warrant. there is absolutely nothing in the testimony taken before me to support the contention that there was no probable cause for believing the existence of the grounds upon which the search warrant was issued, but there is some merit in the other contention. the search warrant directs the taking by the sheriff of "liquor found in and upon the premises aforesaid, together with any and all vehicles, fixtures, containers, utensils, machines, contrivance, or paraphernalia whatsoever found, used or intended to be used in the illegal keeping or sale of liquor." it will be readily seen that the sheriff would only be justified in his seizure of the liquor permits if they came within the description "paraphernalia," and clearly the word "paraphernalia" cannot be interpreted, particularly in the light of the words which precede it in the search warrant, to cover liquor permits. the testimony also showed that the five gallon can labeled "columbia spirits" was delivered by a drug concern to caprio while the sheriff's men were there or about the time they arrived. certainly this liquor is not the liquor referred to in the search warrant, and consequently, not being the liquor referred to in the search warrant, it must be restored to the person from whom it was taken. therefore an order may be presented, reciting that, so far as the prohibition enforcement act is concerned, the search warrant issued by virtue of the authority thereof is not sufficient to justify the sheriff in retaining the liquor permits and five gallon can labeled "columbia spirits," and that in view of the prohibition enforcement act the said liquor permits and "columbia spirits" be restored to said caprio. harsel v. fichter & engelhardt. (essex common pleas, dec. , ). _workmen's compensation acts in new jersey and new york--applying to wrong tribunal--election of tribunal._ case of julia harsel, petitioner, against william fichter and john engelhardt, copartners trading as fichter & engelhardt, defendants. on petition for compensation under workmen's compensation act. messrs. kent & kent for petitioner. messrs. kalisch & kalisch (by mr. isador kalisch) for respondent. stickel, jr., j.: the employers contend that the petition for compensation in this case should be dismissed because the contract of employment was made in new york, and because the petitioner elected to proceed under the compensation law of new york, subsequently petitioning for compensation under the new jersey law. in considering the case, i felt i would be aided if i had before me the testimony taken in the new york compensation action, and counsel for the defendant very kindly supplied me therewith. from such testimony, which i have filed in this case, as well as from the deposition filed, i am satisfied and find as a fact that the deceased was hired in new jersey by fichter & engelhardt. it is quite clear to me that the deceased heard of the new jersey job of fichter & engelhardt at the union rooms in new york and that, being attracted thereby, he, after giving up the new york job, came to the new jersey job, was seen by the foreman, millhouse, and employed on the spot. engelhardt appears to be a silent partner of fichter, according to his own testimony, and the firm is, in fact, made up as stated in the title to this cause. furthermore, even though the contract of employment had been made in new york, the accident causing the deceased's death having taken place in new jersey, the case falls within the new jersey compensation act, and this notwithstanding the existence of a new york compensation act. american radiator company v. rogge, n. j. l. , aff. n. j. l. ; u. s. ; david heiser v hay foundry & iron works, n. j. l. (at this time the new york compensation act was in force); west jersey trust company v. philadelphia & reading realty company, n. j. l. . as to the question of election, the contention of the employers is wholly without merit. the petitioner, through attorneys other than those who now represent her, applied for compensation under the new york compensation act. the commission held that it had no jurisdiction; that the case was not within the new york jurisdiction, apparently, from the testimony taken, because the commission found that the contract of employment with petitioner was made in new jersey and the accident took place there. thereupon petitioner applied for compensation in new jersey, and an informal award had been made in new jersey, and a day fixed to hear the case on the formal petition, before someone in new york claiming to represent mrs. hassel, the petitioner, had applied for a reopening of the finding of no jurisdiction by the new york commission. petitioner in that posture of affairs advised the new york commission of the new jersey proceeding, and asked that the new york proceeding be stayed "pending the trial of her case in new jersey, and then after and when we receive compensation over there, as i understand the law in this state, mrs. hassel can still come in and get the deficiency claim from the compensation bureau here," and this request was duly granted. what acts of petitioner constitute the election which should bar this new jersey proceeding? certainly not the original application for compensation in new york, for that application was dismissed, and it now appears erroneously, for lack of jurisdiction, and, under such circumstances, it is clear that she has not made a final and binding election such as would preclude her applying to the tribunal in fact possessing jurisdiction. cyc., p. , and cases cited; corpus juris, p. , and cases cited. if a mistake of a petitioner in applying to the wrong tribunal for relief would not preclude application to the right tribunal (see cyc., supra) certainly the erroneous finding of no jurisdiction by the tribunal applied to could not have a greater and more binding effect upon the petitioner. and even a correct finding of no jurisdiction would not preclude application for relief to the tribunal possessing jurisdiction. corpus juris, p. . the only other conduct of petitioner which is relied upon to constitute an election is her request to the new york commission after someone unauthorizedly had applied for a re-opening of the case, and after the institution of the new jersey suit to stay the new york proceedings until the completion of the new jersey proceeding, so that petitioner might obtain in new york the difference between the new york compensation allowance and that of new jersey, and clearly such conduct, which is, in effect, an election to proceed in new jersey on the main case, cannot be held to constitute an election to proceed in new york. i, therefore, find that the petitioner is entitled to compensation for three hundred weeks at the rate of twelve dollars per week, and to one hundred dollars, the statutory allowance for funeral expenses, and i will allow counsel for the petitioner a counsel fee for services in this court of two hundred and fifty dollars. a determination of facts should be prepared by counsel for the petitioner, submitted to counsel for defendant for inspection, and then transmitted to me for signature. state v. ash. (essex common pleas jan. , ). _driving automobiles under influence of liquor--review of evidence below._ case of state of new jersey against joseph a. ash. on appeal from third criminal court of newark. mr. john p. manning for state. mr. andrew van blarcom for defendant. stickel, jr., j.: the defendant-appellant was found guilty in the third criminal court in the city of newark, judge horace c. grice presiding, for driving an automobile while under the influence of liquor, in violation of section , chapter , of the laws of , a supplement to the disorderly person act, and he now appeals to this court. the first point urged as a ground for reversal of the conviction is that "at the close of the case there was a reasonable doubt as to the applicant's guilt; that the state had not sustained the burden of proof, and that the weight of the evidence favored the appellant." it is to be doubted whether this court has any power to review the evidence at all, in view of the laws of , page , section , comp. stat., p. , providing: "that it shall not be necessary to set forth in said conviction [convictions in police courts of first-class cities] the whole or any part of the testimony upon which such convictions is had," but, assuming it possesses such power, it cannot extend beyond the point of determining whether there was any evidence before the trial court to support its finding. see sec. , laws of , p. , supp. comp stat., p. ; state v. lynch, n. j. l. journal ; lyons v. stratford, n. j. l., ; orange v. mcgonnell, n. j. l. . no power to weigh the evidence rests in this court, and, if it did, i would be unwilling to say, after a reading of the evidence in this case, that the trial court was wrong in its conclusion of facts; that it should have disregarded the officer's testimony and that of doctor mitchell, and believe the story of the defendant and his friend; or even that the court must have or should have entertained a reasonable doubt of the defendant's guilt on the whole case. the trial court saw the witnesses, had the benefit of the atmosphere of the trial, witnessed the demeanor of the witnesses on the stand, their manner of testifying, and, consequently, was in a better position to determine questions of fact than this court is, relying, as it must, upon a paper record. there was ample evidence, if believed, to support the charge. the police officer testified that he saw the defendant driving the car, smelled alcohol on his breath, took him to doctor mitchell, the police surgeon, to whom the defendant admitted that he had been drinking, and who found him under the influence of liquor, and on the stand the defendant told of having had two drinks of whiskey. the point stressed--that the police officer's claimed identification of the defendant as the driver on south orange avenue is so improbable and impossible as to make his whole story increditable incredible and unbelievable--presents a question of fact and argument peculiarly the province of the trial court, but, in any event, the fair intendment from his testimony, it seems to me, is that either because of the speed of the auto in question, or because of the auto chasing the car in question, with the occupant waving his hand to the officer, he was attracted to the automobile in question, caught a glimpse of the driver, turned around, followed the car, ordered it to stop, saw the defendant while thus endeavoring to bring the car to a stand-still, and then saw him step out of the car and away from the driver's seat. the next point urged is that the court erred in sustaining an objection to this question addressed to officer moffatt by counsel for the defendant: "how many conferences have you had about this case this morning with captain mcrell, or doctor mitchell?" after this question was asked the court said: "is that material?" "mr. manning: i do not see that this is material. we have a right to prepare our case. i object." the court: "objection sustained. i think you [counsel for the defendant] probably talked about your case with your client." no objection was made to the court's ruling by counsel for the defendant, no exception taken thereto, and no effort made to point out the materiality or relevancy of the question, or that it was but the foundation for some legitimate attack upon the credibility of the witness. in that posture of affairs the overruling of the question was in the discretion of the court and was harmless. state v. panelli (n. j.) atl. . the third and last ground urged for reversal is the action of the court in permitting doctor mitchell to answer the following question over objection of counsel for defendant and exception duly taken: "and, in your opinion, would you say his condition to be such as to prevent his driving a car?" assuming the action of the court constituted legal error, it could not prejudice the defendant, for the state was not required to prove that the defendant was so far under the influence of liquor that he could not safely drive a car, but merely to prove that he drove the car while "under the influence of intoxicating liquor." this is clearly pointed out by justice trenchard in state v. rodgers, atl. (at p. ), where the justice says: "it will be noticed that it is not essential to the existence of the statutory offense that the driver of the automobile should be so intoxicated that he cannot safely drive a car. the expression 'under the influence of intoxicating liquor,' covers only all the well known and easily recognized conditions and degrees of intoxication, but any abnormal mental or physical condition which is the result of indulging in any degree in intoxicating liquors, and which tends to deprive him of that clearness of intellect and control of himself which he would otherwise possess." the state, prior to the propounding of the said question, had submitted testimony showing or designed to show that the defendant had driven the car while "under the influence of intoxicating liquor," and doctor mitchell had already testified that when he examined him he found him under the influence of intoxicating liquor. no legal error being shown or appearing in the record, the conviction is therefore affirmed. in re estate of eckert. (essex county orphans' court, aug. , ). _exceptions to accounting--depreciation of securities--continuing investments--new and unlawful investments._ in the matter of the estate of august f. eckert. on exceptions to account. messrs. riker & riker (mr. theodore mcc. marsh and harvey s. moore), proctors for exceptant. mr. edward r. mcglynn, proctor for the executor. stickel, jr., j.: august f. eckert, of orange, new jersey, died on or about october, , leaving a last will and testament, whereby he bequeathed his property to his wife, caroline eckert, and to his children annie m. eckert and clara m. eckert, to be divided equally between them as soon as the youngest child should arrive at the age of twenty-one years. he appointed william scheerer, executor. both of the children were of the age of twenty-one years at the time of testator's death. scheerer duly qualified as executor, and from to the present time he has been in charge of the administration of the estate. after being cited to account he filed the account here in issue, and annie m. eckert, who has married and is now known as annie maxwell, filed numerous exceptions to the account. all of these exceptions were disposed of at the hearing except certain exceptions which fell into two classes, first, those relating to the depreciation on certain issues of bonds, generally described throughout the hearing as public service securities, and, second, the exceptions based upon the executor's failure to invest the cash on hand. i will overrule the exceptions falling within the first class, namely, those seeking to surcharge the executor for depreciation of securities invested in by the testator and received by the executor as part of his estate. the securities, the subject matter of the exceptions now under consideration, are investments made by the testator. consequently, unless it can be shown that in continuing these investments the executor failed to exercise reasonable discretion and that there was an absence of good faith in so continuing them, he cannot be charged with depreciation of such stock. the burden of proving such lack of good faith and failure to exercise reasonable discretion is upon the exceptant. this burden she has failed to sustain. i am convinced that whatever the executor did in the management of this estate was done solely with the best interests of the estate in mind. when the decedent died his widow and two daughters remained together as a family and the executor proceeded to administer the estate possessed of the complete and entire confidence of the beneficiaries of the man who had had sufficient confidence in him to appoint him his sole executor. it was his strict duty, perhaps, to close up the business of decedent, collect the assets, pay the debts and at the end of the year distribute, and had he done so he would early have been relieved of his responsibility. but he wanted to help the family, and so he departed from his strict duty and permitted the business to be continued for a time so that the family might benefit from the receipts thereof. again, he permitted the informal use and division of some of the debts collected and personal property left. but it is entirely clear to me that this was done by common consent of those concerned, including the exceptant. the three, constituting the family, were treated as an entity, and these and other departures from the strict line of the executor's duty were committed because they were for the common good. in line with this policy of helpfulness on scheerer's part, and of confidence and reliance upon the part of the devisees, the executor was given charge of the lands and permitted to continue the management of the estate long after it should have been wound up. he became, by tacit consent and common understanding, the trustee of the family. they wanted the benefit of his judgment and experience until the real estate could be sold and the proceeds properly invested. this he gave to them. this continued during , and . no question seems to have arisen as to the propriety of continuing the investments, nor, indeed, were the executor's acts in any respect challenged during this period. then the exceptant left the family and became mrs. maxwell, and in demanded an accounting. up to this point no evidence at all of bad faith or unreasonable exercise of discretion appears. the result of the demand of the exceptant was the agreement by the executor and the exceptant, in the office of john p. manning, her attorney, upon a settlement which provided for a payment of part of her share in cash and part in investments of decedent continued by the executor. the settlement fell through, not apparently because the securities or settlement were unsatisfactory, but because exceptant disapproved of the word "heirs" in the release requested of her by the executor. at the time, in , the exceptant was willing to take, as her share of the estate, some of the same investments which she now declares the executor was negligent in continuing. thereafter, and up to the filing of the account, the attorneys of the exceptant and the attorneys of the executor were in frequent negotiation, endeavoring to settle the differences of the parties and agree upon a distribution or division. certainly, during this period, the executor would not be charged with bad faith or failure to exercise reasonable discretion in keeping the subject matter of the negotiations _in statu quo_, ready for immediate distribution or division in the event of an agreement. where, then, is the evidence of lack of good faith and failure to exercise reasonable discretion? i can find none. indeed, when it is realized that two of the beneficiaries are entirely content with the executor's retention of the securities in question; that that which the securities in question represent is as valuable to-day as when the decedent died; that the depreciation is a paper or market one, due to abnormal conditions general throughout the world; that with the return of normal conditions these securities are likely to find their old level, and that the exceptant herself has continued to hold her individual securities, of the same general type as those here in question, it is easy to believe that had the distribution of the estate taken place heretofore, to-day would have seen all parties holding on to their securities, collecting their accustomed income, hoping for the return of the conditions which would mean a rise in the market value of their said securities. the mere fact that the executor did not close up the estate within a year or two after the decedent's death, but continued to manage and administer it, including the real estate, with the consent of beneficiaries, did not increase or change his liability. he was bound to take the same care of the estate as before, no more, no less. perrine v. vreeland, stew. . we will now take up the claim that the executor should have invested the cash on hand instead of keeping it in the bank, and that, having failed to do so, he must be charged with the difference between the interest he did get and that which he might have received had he invested it. this exception is also overruled. it is true that, generally speaking, it is the duty of an executor to invest funds in his hands; but the propriety of charging an executor or trustee with interest because he has failed to invest the funds depends upon other facts than the mere possession of the funds, and i know of no case holding that where, pending negotiations for settlement and distribution, an executor left the funds of the estate in saving banks, he must be charged with the interest he might have received had he invested the funds of the estate and perhaps thereby interfered with the immediate liquidation and settlement of the estate. on the contrary the tendency of the decisions is to uphold such conduct. his course prior to the demand in was acquiesced in by the exceptant; his actions since then were governed, and necessarily, by the continually pending negotiations. in any event the uninvested funds at best scarcely equalled at any time, as far as i can discover, two or three thousand dollars, sums perhaps not always easy to quickly and satisfactorily invest. this leaves for consideration only the act of the executor in investing five thousand dollars of his _cestui que_ money in public service funds. these were securities in which a trustee had no right to invest. they are not among those investments which our statute permits trustees to invest in, and, in establishing the investments, the exceptant has made out a _prima facie_ case requiring explanation by the executor. undoubtedly the executor acted in good faith, but that will not protect him as in the case of continuing investments made by a decedent. his explanation, other than that he acted in good faith, appears to be that the investment was made with the acquiescence of the exceptant; that she is estopped from questioning the investment. i doubt that the exceptant had actual knowledge of the investment when it was made, and the general acquiescence which negatived bad faith in the executor in continuing the decedent's investment would not suffice to protect the executor in making an investment of this kind. nor do i find that she possessed the knowledge of this transaction that would permit of the application of the doctrine of estoppel. as a consequence, unless there are facts which have escaped or have not been brought to my attention which relieve the executor from the normal effect of an investment of this kind, he must be charged with the depreciation of these bonds, unless the beneficiaries agree to accept the bonds as such. [note by editor.--the above case, which has attracted much local attention, was in part sustained and in part overruled in the prerogative court on jan. , and may go to the errors and appeals]. in re vreeland. (essex common pleas, jan. , ). _insolvent debtor_--a preferential payment of a bona fide debt by an insolvent debtor does not bar his discharge under the act for the relief of persons imprisoned on civil process. in the matter of frank a. vreeland. application for discharge as insolvent debtor. mr. richard h. cashion for debtor. mr. frederick j. ward for objecting creditor. flannagan, j.: on june th, , peter m. dalton recovered a judgment in tort against frank a. vreeland, in the orange district court, in the sum of $ . and costs; execution was issued and returned unsatisfied. on september , , the debtor was taken into custody on a capias ad satisfaciendum and released on bail on the following day. the debtor now applies to this court for a discharge as an insolvent debtor under the act for the relief of persons imprisoned on civil process, having filed what he claims is "a just and true account of all his real and personal estate," as provided by section of the act. it appeared from the testimony of the debtor on the hearing before this court that, after entry of said judgment and on july , , he executed to his sister, laura a. vreeland, a chattel mortgage, for the sum of $ , , being the amount of a pre-existing debt for cash advanced by her to him between august , , and the date of the mortgage (to wit, july , ). the debtor has no property of any substantial value remaining, and, while the value of the property mortgaged is questioned, it represented substantially all his resources and appears to be by no means equal in value to the amount of the loan against it, $ , . the creditor contends that the debtor, having thus made a preference in favor of his sister since the entry of the judgment, he is not entitled to a discharge. this is the only question which is involved in the present application. the statute provides (section ) that the court shall "consider and examine the truth and fairness of the account and inventory," and (section ) that, if the court is "satisfied that the conduct of the debtor has been fair, upright and just," it may proceed to grant his discharge upon compliance by him with the further provisions as to assignment, etc., set forth in the statute. under section of the act it is provided that if it shall appear that the debtors have "concealed or kept back any part of their estate or property, or made any ... mortgage ... with intent to defraud his creditor ... then ... said debtors shall be refused ... discharge." the provision which requires the debtor's conduct to be "fair, upright and just" is restricted to his conduct in making his account and inventory, and "in delivering up to his creditors all his estate" (meliski v. sloan, n. j. l. ; reford v. creamer, n. j. l. ), and, unless the mortgage to the debtor's sister was with intent to defraud, it would seem he is entitled to his discharge. of course, if the mortgage is fraudulent, he would not be entitled to it. iliff v. banhart, n. j. l. ; affd. n. j. l. . there is no evidence in the case that the consideration paid for the mortgage by the debtor's sister was fictitious, or was not bona fide, or that the mortgage was with any promise or expectation of future benefit to the debtor, or was otherwise improper. on the contrary the testimony is that the mortgage was given for money advanced. the only objection to the discharge which the evidence would justify is that the mortgage was given when the debtor was in failing circumstances while insolvent and after the creditor's judgment had been entered. there is nothing fraudulent or wrong, within the meaning of the act for the relief of persons imprisoned on civil process in the giving of a preference knowingly by a person in an insolvent condition. at common law every man, even when in failing circumstances, has a right to dispose of his property, to pay one honest creditor in preference to another one. garretson v. brown, n. j. l. ; affd. n. j. l. ; stillman's ex. v. stillman, n. j. eq. . if the debt was honestly due the debtor had a right to select his favorites. there is nothing in the act to change the common law on this subject and hence the debtor was within his legal rights when he made the preference referred to his sister. for these reasons the debtor is entitled to his discharge. n. y. and greenwood lake railway co., et al. v. essex co. park commission. (n. j. supreme court, dec. , ). _certiorari--railroad land acquired by park commission by condemnation--disuse of land by railroad._ new york and greenwood lake railway co., a corporation, and erie railroad co., a corporation, prosecutors, against essex county park commission. application for writ of certiorari before hon. william s. gummere, chief justice. messrs. parker, emery & van riper (by mr. john m. emery) for prosecutors. mr. alonzo church for respondent. gummere, c. j. (orally): as i understand the situation with relation to the law and the facts, it is this: the park commission, having been created by the legislature for the purposes specified in the act under which it was organized, conceived the idea of acquiring land to be devoted to the uses of a park up in verona, and that was done, of course, under a form of resolution, and i assume, unless i am corrected, that the land to be embraced in the park was described, in a general way at least, in the resolution. having taken that step they started in to acquire the land to be embraced in the proposed park, and in carrying out that purpose they approached this railroad company for the purpose of buying from them, for the purposes of a park, this particular piece of land, but they were unable to make any arrangement with the company with relation to its purchase and sale. i say that from my recollection of the provisions in the petition which was submitted to me, and the accompanying affidavits. the railroad company at that time, and that was prior to the first of november, knew that this park commission proposed to acquire a tract of land, of which this particular piece was an integral part, for the purposes of public recreation, not only for the citizens of verona and neighborhood, not only for the citizens of the county of essex, but for all the citizens of the state who desired to enjoy that public benefit. now, the park commission either had or had not the right to acquire this land in invitum, that is, against the will of the railroad company and by the exercise of the power of eminent domain given to them by the state itself, and so if they had desired to do so (and when i say "they" i mean the railroad company), they could have ascertained just what the steps were that had been taken by the park commission antecedent to the negotiations for the purchase of this land. they would have ascertained that this resolution had been passed and that this particular piece of land was only a part, perhaps a small part of the whole territory which was to be acquired and devoted as a unit to park purposes, but they did not do it. they sat still until they received notice that an application had been made to the presiding justice here for the appointment of commissioners to condemn that piece of land, and a representative of the railroad company appeared here in response to that notice. of course, there was nothing that could be done in that particular phase of the matter which would operate as a stay, because the judge in a matter of that kind sits as a mere legislative agent. but, after the court had appointed the commissioners, this railroad company, having neglected to act promptly in the way that i have already suggested, by certioraring the resolution, and thereby preventing the expenditure of comparatively large sums, i suppose, of public moneys, still waited; not only waited, without attempting to halt the proceedings, but they actually attended before the condemnation commissioners. counsel says with a reservation, or with an expostulation, or a protest, or what not, but they appeared there for some purpose, and i suppose to see what the award would be. i don't know whether they offered testimony or not as to the value of the land. that has not been spoken of. mr. church: they did offer testimony. the court: with the apparent idea, then, that they hold on to their legal rights with one hand, and, if the award justified them in letting go, they would let go of their legal rights and take the money. now the question is whether in that situation this railroad company is in a position to ask relief from a judge of the supreme court, the relief being in the shape of a writ of certiorari; and whether or not the writ will be awarded is a matter resting in the discretion of the court. i am not speaking about the question of laches, but, in determining whether this writ ought to issue, i must take into consideration all of the circumstances. it appears that the railroad company, instead of acting promptly, has stood by supinely and seen the county of essex expend a large amount of money for the purpose of acquiring property, the value of which for public purposes would be greatly depreciated if they were to be prevented from taking this land as a part of the scheme to be carried out. so, i would be inclined to say that, in view of that situation, in the exercise of a proper discretion, i ought to tell the railroad company that i cannot see my way clear to allow this writ; that it would be greatly injurious to the people of essex county and the people of the state, even, and would produce that injury, although the people and their representative, the park commission, are in no way responsible for it. then there is another reason why i think this writ ought not to be allowed. this railroad company received from the state of new jersey a grant, by the terms of which it was permitted to acquire lands for the construction and operation of a railroad between given points. that grant was not as a matter of course made to the railroad company for the purpose of benefitting it, but to provide a means of transportation by which the public would be served; and it was an implied part of the contract which was created by the tender of the grant and its acceptance, that this corporation would, within a reasonable time, not only acquire the land but build the railroad and carry the people of this state backward and forward across it for the compensation which the legislature permitted the railroad company to charge; and for over half a century they have violated the implied condition of their agreement. they have acquired the land. they have not attempted, and so far as i know never will attempt, to devote this land to the purposes for which alone they were entitled to acquire it. they are holding it out of the general property of the state, and by doing so prohibiting its use for the benefit of the state, or any of its citizens, or anybody else. in other words, it is not land that is being held by this company for railroad use. it has never been so used by them, since it was acquired over a half century ago, and, so far as anybody can tell, it is quite uncertain whether it ever will be used for the purposes for which its acquisition was permitted. now, in that situation, the state comes along and through its agent, the essex county park commission (for that commission is a state agent) says: 'we need this land for public use. you have had your chance to devote it to that use; you have consistently declined, by inaction at least, to so devote it, and now we are going to devote it to the uses and benefits of the state and of the people of that part of the state located within the borders of the county of essex,' and i am inclined to think that this was the situation contemplated by the legislature which induced the reservation in the act of that railroad companies should not be permitted to act as dogs in the manger and hold out land which they cannot use themselves, never have used, and perhaps never will use, for the only purpose to which they could devote it under their charter. and so, i think, for this reason also this application should be denied. abstracts of recent public utility decisions. _in re west shore & seashore r. r. co._--application to discontinue maintaining an agent at forest grove, as revenues do not warrant expense of the agency; the place to be put under the supervision of the agent at minetola, who would keep the station open, lighted, etc. the board permitted the discontinuance, adding that "if future conditions change to the extent of warranting the re-establishment of an agent, the matter will be given further consideration." report dated nov. , . mr. george a. bourgeois for the company. mr. joseph little and mr. charles h. lincoln for protestants. another application was made at the same time by the same company for the discontinuance of the agent at buena. the board said: "while the reasonableness of the company's desire to reduce operating expenses is recognized, the discontinuance of the agent would undoubtedly result in inconveniencing shippers and receivers of freight and express to an extent that would not be justified considering the volume of business. the necessity for the presence of an agent or clerk for a portion of the day is manifest, and arrangement should be made to have a representativeat the station from a. m. until . p. m. daily, excepting sundays: also that the station be kept open during the hours it is at present open for the convenience of passengers. if the company will arrange to have a representative at the station for the transaction of necessary business from a. m. until . p. m., and keep the station open covering hours now in effect, the board will approve such an arrangement in lieu of agency now effective." report dated nov. , . mr. george a. bourgeois for the company. mr. charles wray for protestants. _in re pennsylvania r. r._--application to discontinue an agent at allaire. permit granted. report dated nov. , . mr. w. holt apgar for petitioner. _in re city of newark._--application for a change in the colorific standard of gas. the board was about to investigate the rates charged for gas by the public service gas co., when the city of newark gave notice of a demand for an increase in the standard. "there was thus," said the board, "injected into the proceeding a question which had to be decided before the board's investigation into the rates could proceed, it being impossible to fix a price for gas until the board should fix the standard for gas under newark's petition. the rule fixing the standard for gas being applicable to all gas companies in the state, general notice of hearing was given, and the gas companies were represented." testimony was begun in august last, and the general purport appears in the report. the board said: "it does not appear that the gas supplied by the public service gas company compares favorably with that furnished by other companies, which, confronted by the rule [ix of the standard adopted by the former utility board] alone, have applied it in accordance with its apparent literal significance. the rule, however, should be free from any misunderstanding as to its meaning. as the public service gas company supplies the greater part of the gas consumed in the state, and to now require it to change its interpretation of the rule might result in undesirable complications in the rate proceeding being conducted by the board without corresponding advantage to its customers, it is deemed inadvisable to insist upon such change. in order, however, that there may not be a continued apparent conflict between the rule as worded and the practice of the company, the board will change the wording of the rule so that there will be no doubt if gas is supplied with a minimum daily average of b. t. u. it will be in compliance therewith." report dated nov. , . messrs. e. w. wakelee, e. a. armstrong and g. h. blake for public service gas company. mr. jerome t. congleton and mr. j. g. wolber for the city of newark. mr. george l. record for city of jersey city. mr. benjamin natal for city of camden. mr. william a. kavanagh for city of hoboken. mr. joseph t. hague for city of elizabeth. mr. a. o. miller for city of passaic. mr. william p. hurley for town of nutley. mr. welcome w. bender for chamber of commerce of elizabeth. mr. f. r. cutcheon for consolidated gas company. mr. s. j. franklin for cumberland county gas company. mr. h. s. schutt for atlantic city gas company. mr. william wherry, jr. for new jersey gas association. dr. w. g. hanrahan for rent payers' association of essex county and federation improvement associations. mr. james w. howard on his own behalf. _in re blackwood water co._--application for increase in rates. the board required, first, that changes must be made in the system so as to provide for continuous operation of the filter plant, additional power to operate the pumping machinery, etc., six different improvements in all. doing this the company could make certain increases in rates beginning jan. , . report dated nov. , . mr. lewis starr for petitioner. mr. samuel p. hagerman for township of gloucester. some interesting out-of-state decisions. state prohibition laws and eighteenth amendment. in the habeas corpus proceeding of jones v. hicks, decided by the georgia supreme court and reported in southeastern reporter, , portions of the statement of facts and opinion of the court by judge gilbert are as follows: "jones was arrested under a bench warrant issued by the judge of the city court of macon, based upon an accusation charging him with violating the prohibition law of this state on january , . he filed a petition for the writ of habeas corpus, based upon the ground that the eighteenth amendment to the constitution of the united states, which was ratified on january , , and the 'national prohibition act' known as the volstead act ( stat. ), superseded and abrogated all state laws on the subject covered by said eighteenth amendment, and that therefore, at the time this defendant is alleged to have committed the criminal offense charged in the accusation, there was no valid state law in existence. the court refused to release the petitioner, and that judgment is excepted to.... "the second section of the amendment as proposed to the states and ratified, provides that 'the congress and the several states shall have concurrent power to enforce this article by appropriate legislation.' "three views as to the proper construction of the second section have been generally discussed: ( ) that concurrent power means joint power; ( ) that the power is given to each, the legislation of either congress or the states being of equal force with the other; and ( ) that the power is in each, but that the legislation of congress, as the supreme law of the land, will supersede any inconsistent state legislation.... "the supreme court of the united states having adversely disposed of the contention that 'concurrent power' means joint power [state of rhode island v. palmer, sup. ct. ], there remain two other views to be considered. similar, but not identical, questions have been discussed heretofore by courts of several states and by the supreme court of the united states. none of these involved construction of delegated powers to be exercised concurrently. they are cited here for comparison, and not as controlling.... "the sphere in which the congress, under the eighteenth amendment, may legislate for the enforcement of prohibition, is limited to the precise terms stated in the amendment, to wit, 'concurrent enforcement....' from a consideration of the question as above presented, we reject the view that the legislation of congress will supersede and abrogate the laws of the state which are appropriate for the enforcement of the amendment. we conclude that the power of congress and of the state is equal and may be exercised by the several states for the purpose of enforcement concurrently within their legitimate constitutional spheres. ex parte guerra (vt.) atl. , and authorities cited. the first section of the amendment is in no way affected or qualified by the words 'concurrent power,' found in the second section." killing cows by automobile. an automobilist, driving his car at an excessive rate of speed along an improved country road in the night-time, struck and killed two cows being driven along the highway. the animals were walking, one behind the other, in or near the wheel track on the side of the road on which they belonged. the machine, after striking the leading animal, skidded and struck the other cow, killing her instantly and casting her dead body, a distance of feet. the driver admitted he was going "about" miles an hour; and the court comments: "the result of the catastrophe indicate rather strongly that he underestimated his speed." the vermont case of bombard v. newton, atl. , is based on this occurrence, and was instituted by the owner of the animals to recover damages for their negligent killing. the court held that the right to drive an automobile along a public highway is not superior to that to drive cows along the highway. "the parties," states the opinion, "had equal and reciprocal rights to the use of the road, and each owed the other the duty of so exercising his own right as not to interfere with that of another. the fact that it was in the night-time affected the rights of the parties only as it bore upon the amount of vigilance each was bound to exercise. the fact that the defendant was operating an automobile, an instrumentality whose capacity for harm is well exemplified by the results in this case, and the fact that the plaintiff was driving cows, animals whose viatic vagaries have come to be known of all automobile drivers, were conditions affecting merely the degree of care required of the parties respectively." miscellany public service loses jitney suit on dec. the court of errors and appeals, by a tie vote, to , practically affirmed the decision of vice-chancellor griffin in denying an injunction to the public service railway co. to prevent operation of jitneys on the public highways. the affirmative votes were by justices black, kalisch, parker, swayze and trenchard, and judges white and van buskirk; the negative by chief justice gummere, justices bergen, katzenbach and minturn, and judges williams, gardner and heppenheimer. justice minturn wrote an opinion for the negative view. the essential points relied upon by counsel for the railway company in support of the application for an injunction against the jitney owners were that none of the defendants had applied for and obtained consent for the use of the streets and highways on which they operated, as required by the limited franchise act of ; that none of the defendants filed with the chief fiscal officer of the city in which they operate a policy of insurance, as required by the kates jitney act of ; that barnett, though filing a policy of insurance in newark, filed only a copy of the policy in elizabeth; that banker filed a policy in new brunswick, but none in south amboy; that the public service railway in the enjoyment of a legal franchise is entitled to an injunction against the alleged illegal competition on the part of jitneys, and that the public service is entitled to protection of its franchises and business by injunction under decisions of the new jersey court. merritt lane, counsel for the jitney owners, questioned the jurisdiction of the court of chancery to grant the injunction, contending that the rights of the public service are not of such a nature as to justify it in seeking relief in any court, and argued that the franchise of the company was not to transport passengers for hire and reward but to lay and maintain rails in public streets and to operate cars thereon. mr. lane also submitted that to grant the injunction would create a result manifestly opposed to public policy and would result to the disadvantage of the public. he submitted that the company was not in a position adequately to handle the traffic and that if the jitney were eliminated hundreds of thousands of persons would be obliged to walk or stand while riding. hunting by foreigners. the county clerk of sussex, mr. harvey s. hopkins, has appropriately called the attention of municipal clerks in that county to their neglect of duty under the hunting and fishing license law. doubtless the same neglect has resulted in other counties. in sending out the supply of licenses mr. hopkins wrote: "in every monthly report compiled by this office i can see instances where resident hunting licenses have been improperly issued to foreigners who have not yet acquired their final naturalization papers. this is both unjust and unlawful and sooner or later some issuing clerk will encounter serious trouble through his laxity in this matter. unless you have personal knowledge respecting the applicant, there is but one safe procedure: compel him to produce his certificate of final naturalization. his first papers, or declaration of intention are not sufficient." mr. hopkins also called the attention of the municipal clerks to the change in the fish and game laws which no longer exempt women from the necessity for procuring a license. formerly women were not required to have licenses to fish, although they had to get them to hunt. now they have to have licenses for both, as per chapter , laws of . honor to mr. gaskill. mr. nelson b. gaskill, formerly assistant attorney-general of new jersey, and now a member of the federal trade commission, has been elected chairman of that body. he is the second jerseyman to enjoy that honor, the late j. franklin fort, former governor, having been chairman several years ago. mr. gaskill is a son of former judge joseph h. gaskill of burlington county, was for many years connected with the new jersey national guard and during the late war held the rank of lieutenant-colonel in the judge advocate-general's department. he was appointed to the federal trade commission by the then president wilson. jersey law school alumni. the new jersey law school alumni association has completed its organization. the officers elected are: judge clyde d. souter, president; john a. ammerman, first vice president; miss irene rutherford o'crowley, second vice president; john a. matthews, third vice president; miss helen oppenheimer, secretary; raymond foster davis, treasurer. at the dinner in the berwick hotel, newark, more than lawyers in this state, all graduated from the school, attended. richard d. currier, president of the law school, told the guests of the advantages gained by promoting good fellowship in the form of an alumni association. humor of the law. a certain lawyer was asked by an acquaintance how it was that lawyers contrived to remain on such friendly terms with each other, although they were famed for their cutting remarks. the lawyer looked at him with a twinkle in his eye, and remarked: "yes, but they're like scissors; they only cut what comes between."--_japan advertiser._ * * * * * his honor: "get the prisoner's name, so we can tell his mother." rookie: "he sez his mither knows his name."--_vaudeville news._ * * * * * "prisoner at the bar," said the judge, "will you have trial by judge or jury?" "by jury, your honor," said the defendant. "i'll take no chance on you!" "what!" roared the court. "do you mean to say that i would--" "i don't mean t' say nothing," said the prisoner, stoutly, "but i ain't taking no chances. i done some plumbin' work for you last winter!"--_richmond times-dispatch._ * * * * * there recently died in illinois an aged farmer, reputed to be wealthy. after his death, however, it was discovered he left nothing. and his will ran like this: "in the name of god, amen. there's only one thing i have. i leave the earth. my relatives have always wanted it. now they can have it." * * * * * mr. hardfax: "so your son left us to go into a bank in the city? how did he acquit himself?" mr. timbertop: "he didn't acquit himself. it took the best lawyer in the county to get him acquitted."--_boston globe._ the legislature. the th session of the new jersey legislature opened at trenton on january . the senate consisted of republicans and democrats; the assembly of republicans and democrats. there are two women in the legislature, mrs. catherine brown, democrat, of hudson county, and mrs. margaret b. laird, republican, who was reëlected from essex county. senator william b. mackay, of bergen county was elected president of the senate; and assemblyman t. harry rowland, of camden, speaker of the house of assembly. governor's appointments. among the recent appointments by governor edwards the following will prove of special interest to the bar: justice james f. minturn, of hoboken, of the supreme court, reappointed. justice charles c. black, of jersey city, of the supreme court, reappointed. judge walter p. gardner, jr., of jersey city, member of the court of errors and appeals. mr. samuel m. shay, of merchantville, common pleas judge of camden county in place of judge john b. kates. judge william h. speer, of jersey city, circuit court judge, reappointed. mr. willis t. porch, of pitman, prosecutor of the pleas of gloucester county, to succeed oscar b. bedrow. mr. john o. bigelow, of newark, for prosecutor of the pleas. mr. john enright, of freehold, for commissioner of education. some state notes. on jan. former judge maja leon berry, solicitor of the ocean county board of freeholders, entertained that body, the county officials and newspaper men at a dinner at the ocean house. the occasion was the host's forty-fifth birthday and he has followed this custom of entertaining the officials for the past twelve years. mr. james r. nugent, of newark, was nominated on january by the governor for prosecutor of the pleas of essex county, but, a week later, was refused confirmation by the senate, by a vote of to . mr. william e. holmwood, of newark, has removed his law office to washington street. mr. j. victor d'aloia, of newark, has gone to europe for a stay of about two months, so as to visit his parents in italy. a testimonial dinner was given to judge rulif v. lawrence, of freehold, at the hotel belmont at that place, on january , and he was presented with the gift of a gold watch. the monmouth co. bar association held its annual meeting at freehold on january and reëlected its president, halstead h. wainwright, of manasquan. the union co. bar association held its annual meeting at elizabeth on january and elected as its president mr. clark mck. whittemore. it decided to ask the legislature to increase the jurisdiction of the district courts. state senator thomas brown, of perth amboy, was appointed counsel for the public utilities commission on january , to succeed mr. l. edward herrmann, although the latter is still retained by the commission as special counsel in the prosecution of the public service rate case before the united states supreme court. senator brown has practiced law at perth amboy since . obituaries. mr. george w. jenkins. mr. george walker jenkins, one of the best known lawyers of morristown in former years, afterward as active in corporation matters in new york city, died in memorial hospital, new york city, on january , . he had been out of health for some months, but went to the hospital only a few days before his death. mr. jenkins was born november , , at catasauqua, pa., his parents being george and hannah (morgan) jenkins, who were welsh people and born in wales. after the usual early education he entered yale college, from which he was graduated in . he studied law with messrs. parker & keasbey, in newark, and was admitted to the new jersey bar at the november term, , and became counselor at the february term, . he began practice at boonton, but later went to morristown, where he soon became one of the most active lawyers of the place. he had ability, assiduity and exactness in office matters, being so exact in fact that he became one of the most popular special masters of the court of chancery to whom other members of the bar referred their cases whenever practicable. taking early to politics he was soon prominent in the republican party, and was elected and served as a member of the assembly during the years , and . he was also counsel to the board of chosen freeholders, and at one time served as journal clerk of the new jersey senate. in he ran for state senator for morris county, but was defeated by george t. werts, who afterward became governor. about twenty-five years ago mr. jenkins, while not removing from morristown, went to new york city, and was engaged from then until recently, when his health became impaired, in carrying on legal business connected with various extensive corporation enterprises. he was vice-president and director of the bridgeport (conn.) gun implement co. and remington arms co., director of the m. hartley co., treasurer and director of the union metallic cartridge co., trustee of the washington trust co., etc., in all of which his legal knowledge was used with skill and real ability. he owned a large and handsome residence in morristown, and also the silver lake farms at green village. he was a member of the morristown club, morris county golf club and the university, yale and union league clubs of new york city. mr. jenkins married miss helen hartley, daughter of marcellus hartley, of new york city, who, with one daughter and two grandchildren, survive him. his eldest daughter, mrs. frances greer, of new york city, died about two years since; the surviving daughter is mrs. winter mead, of sand beach, conn. he is also survived by a sister, mrs. a. l. dennis, of plainfield, and by nieces. the interment was at boonton. mr. james a. gordon. mr. james a. gordon, an active practicing lawyer at jersey city, died suddenly at his home, pavonia avenue, on january . complaining that he felt ill, mr. gordon left his office the day previous, but his illness gave no indication that death was near. mr. gordon was the son of john a. and isabella (leslie) gordon, and was born in the city of bergen (now jersey city), october , . he was graduated from the jersey city high school in ; read law with mr. john linn and linn & babbitt, and was admitted as a new jersey attorney at the june term, , and as counselor at the june term, . he soon became one of the ablest of the younger members of the hudson bar. his office was at newark avenue, jersey city, at the time of his death. he was unmarried and made his home with a sister, miss isabelle leslie gordon, who, with a brother, william stewart gordon, survives him. he belonged to the bergen lodge, f. and a. m., and the hudson bar association. mr. robert i. hopper. mr. robert imlay hopper, of paterson, long a prominent attorney of that city, died on january th after a few days illness from a general breakdown. mr. hopper was the son of the late judge john hopper and mary a. (imlay) hopper, of paterson, and was born in that city may , . after a public school education he entered rutgers college, being graduated there in . he studied law with his father and became a new jersey attorney at the june term, , and a counselor three years later. for many years father and son were associated in practice in paterson, being severed only because the father was elevated to the bench. in he was chosen counsel to the passaic board of chosen freeholders and served as such for ten years. he was also secretary to the paterson & hudson river railroad (now part of the erie r. r.), holding that office at the time of his death. he was active in the national guard of new jersey, having been major and judge advocate, and was prominent in masonic circles and in various clubs. his wife, who was miss ida e. hughes, died april , . one daughter, ida, survives. van ness act overthrown. on february the court of errors and appeals of this state declared the van ness prohibition enforcement act unconstitutional. this decision reverses the supreme court in the three test cases involving the constitutionality of the enforcement act and sets aside the opinion written in the lower court by mr. justice minturn, presumably concurred in by justices trenchard and bergen, who heard the argument below. had they sat in the full court there would have been so close a division that the court would have stood, as we see it, almost even. the news comes to us just as we are going to press, so that the text of the decisions and dissents is not available. the newspapers state, however, that four opinions were filed and that results on single propositions tended to sustain the constitutionality of procedures while as a whole the act was overthrown. says one newspaper: "on the question of a jury trial, the justices found that the denial of it was proper, six votes to five. that the act was not unconstitutional in describing as a misdemeanor what the federal volstead act describes as a crime, the court agrees six to six, which upholds the act. on the two questions of whether the act was properly described in its title, and whether the functions put upon the magistrates by it could properly be exercised, the court upholds it nine to two. in other words, each one of these features is in itself constitutional. but there are eight justices who disagree with it on one point or another and only four who found nothing to disagree with. therefore, we have the curious phenomenon of a piece of legislation constitutional in each separate part, but under which, as it stands, it is impossible to secure a conviction that will be affirmed. in other words, the act will not stand as it is." chancellor walker devoted the main part of his opinion to consideration of the constitutional question involving the right of indictment and trial by jury, in which he held that the act was defective. among other things he said: "it is almost superfluous to say that the proceedings under view are void because there has been no indictment, as that is a mere corollary to the proposition that they are void because the defendant was denied the right of trial by jury. no one can be put upon trial before a traverse jury in new jersey for a commission of a crime unless upon the presentment of indictment of a grand jury, except in cases of impeachment or in cases cognizable by justices of the peace (or certain military or naval cases)." chief justice gummere's opinion was concurred in by justice swayze and judges gardner, ackerson and van buskirk. it approached the subject from a different angle than the chancellor, reaching the conclusion that, with the passage of the eighteenth amendment, the state had to surrender part of its police power to the federal government, and therefore was bound to legislate in conformity with the volstead act, which, passed under authority of the federal constitution, becomes the supreme law of the land. justice kalisch held that the supreme law of the land, embodied in the volstead act, having made certain offenses a crime, it was not within the power of the state to classify them as petty offenders. consideration was given by judge white to the questions relative to the right of trial by jury and the alleged erroneous interpretation on the question of concurrent power. as to the first objection, that relating to the right of trial by jury, judge white said he thought the real underlying historically established test depends upon the character of the offense involved rather than upon the penalty imposed. "the offense must be a petty and trivial violation of regulations established under the police power of the state in order that the offender may be summarily tried, convicted and punished without indictment by a grand jury and without trial by a petit jury." it must, of course, judge white said, be assumed that the punishment for a petty and trivial offense will also be comparatively petty and trivial, otherwise it would violate another provision of the state constitution which prohibits cruel and unusual punishment. transcriber notes: passages in italics were indicated by _underscores_. small caps were replaced with all caps. errors in punctuations and inconsistent hyphenation were not corrected unless otherwise noted. on page , a single quote was added after "and no longer" on page , "increditable" was replaced with "incredible". on page , "canot" was replaced with "cannot". on page , "execuetd" was replaced with "executed". on page , "nighttime" was replaced with "night-time". on page , a dash was added before "japan advertiser". on page , "qustions" was replaced with "questions". "the altruist in politics" by benjamin cardozo transcriber's note: "the altruist in politics" was delivered by cardozo as his commencement oration at columbia college in . it was never copyrighted. columbia university, which administers cardozo's literary estate, has explicitly granted permission to project gutenberg to publish it. ***** there comes not seldom a crisis in the life of men, of nations, and of worlds, when the old forms seem ready to decay, and the old rules of action have lost their binding force. the evils of existing systems obscure the blessings that attend them; and, where reform is needed, the cry is raised for subversion. the cause of such phenomena is not far to seek. "it used to appear to me," writes count tolstoi, in a significant passage, "it used to appear to me that the small number of cultivated, rich and idle men, of whom i was one, composed the whole of humanity, and that the millions and millions of other men who had lived and are still living were not in reality men at all." it is this spirit-the spirit that sees the whole of humanity in the few, and throws into the background the millions and millions of other men-it is this spirit that has aroused the antagonism of reformers, and made the decay of the old forms, the rupture of the old restrictions, the ideal of them and of their followers. when wealth and poverty meet each other face to face, the one the master and the other the dependent, the one exalted and the other debased, it is perhaps hardly matter for surprise that the dependent and debased and powerless faction, in envy of their opponents' supremacy, should demand, not simple reform, but absolute community and equality of wealth. that cry for communism is no new one in the history of mankind. thousands of years ago it was heard and acted on; and, in the lapse of centuries, its reverberations have but swelled in volume. again and again, the altruist has arisen in politics, has bidden us share with others the product of our toil, and has proclaimed the communistic dogma as the panacea for our social ills. so today, amid the buried hopes and buried projects of the past, the doctrine of communism still lives in the minds of men. under stress of misfortune, or in dread of tyranny, it is still preached in modern times as plato preached it in the world of the greeks. yet it is indeed doubtful whether, in the history of mankind, a doctrine was ever taught more impracticable or more false to the principles it professes than this very doctrine of communism. in a world where self-interest is avowedly the ruling motive, it seeks to establish at once an all-reaching and all-controlling altruism. in a world where every man is pushing and fighting to outstrip his fellows, it would make him toil with like vigor for their common welfare. in a world where a man's activity is measured by the nearness of reward, it would hold up a prospective recompense as an equal stimulant to labor. "the more bitterly we feel," writes george eliot, "the more bitterly we feel the folly, ignorance, neglect, or self-seeking of those who at different times have wielded power, the stronger is the obligation we lay on ourselves to beware lest we also, by a too hasty wresting of measures which seem to promise immediate relief, make a worse time of it for our own generation, and leave a bad inheritance for our children." in the future, when the remoteness of his reward shall have weakened the laborer's zeal, we shall be able to judge more fairly of the blessings that the communist offers. instead of the present world, where some at least are well-to-do and happy, the communist holds before us a world where all alike are poor. for the activity, the push, the vigor of our modern life, his substitute is a life aimless and unbroken. and so we have to say to communists what george eliot might have said: be not blinded by the passions of the moment, but when you prate about your own wrongs and the sufferings of your offspring, take heed lest in the long run you make a worse time of it for your own generation, and leave a bad inheritance for your children. little thought has been taken by these altruistic reformers for the application of the doctrines they uphold. to the question how one kind of labor can be measured against another, how the labor of the artisan can be measured against the labor of the artist, how the labor of the strong can be measured against the labor of the weak, the communists can give no answer. absorbed, as they are, in the principle of equality, they have still forgotten the equality of work in the equality of pay; they have forgotten that reward, to be really equal, must be proportionate to effort; and they and all socialists have forgotten that we cannot make an arithmetic of human thought and feeling; and that for all our crude attempts to balance recompense against toil, for all our crude attempts to determine the relative severity of different kinds of toil, for all our crude attempts to determine the relative strain on different persons of the same kind of toil, yet not only will the ratio, dealing, as it does, with our subjective feelings, be a blundering one, but a system based upon it will involve inequalities greater, because more insidious, than those of the present system it would discard. instances, indeed, are not wanting to substantiate the claim that communism, by unduly exalting our altruistic impulses, proceeds upon a false psychological basis. yet if an instance is to be chosen, it would be hard to find one more suggestive than that afforded by the efforts of robert owen. the year saw the rise of owen's little community of new harmony, and the year of saw the community's final disruption. individuals had appropriated to themselves the property designed for all; and even owen, who had given to the enterprise his money and his life, was obliged to admit that men were not yet fitted for the communistic stage, and that the moment of transition from individualism to communism had not yet arrived. men trained under the old system, with its eager rivalry, its selfish interests, could not quite yet enter into the spirit of self-renunciation that communism demands. and owen, therefore, was led to put his trust in education as the great moulder of the minds of men. through this agency, he hoped, the eager rivalry, the selfish interests, the sordid love of gain, might be lost in higher, purer, more disinterested ends; and, animated by that hope-the hope that in the fullness of time another new harmony, free from contention and the disappointments of the old one, might serve to immortalize his name-animated by that hope, owen passed the last thirty years of his life; and with that hope still before his eyes he died. but years now have passed since owen lived; the second new harmony has not yet been seen; the so-called rational system of education has not yet transformed the impulses or the aims of men; and the communist of today, with a history of two thousand years of failure behind him, in the same pathetic confidence still looks for the realization of his dreams to the communism of the future. and yet, granting that communism were practicable, granting that owen's hopes had some prospect of fulfillment, the doctrine still embodies evils that must make it forever inexpedient. the readers of mr. matthew arnold's works must have noticed the emphasis with which he dwells on the instinct of expansion as a factor in human progress. it is the refutation alike of communism and socialism that they thwart the instinct of expansion; that they substitute for individual energy the energy of the government; that they substitute for human personality the blind, mechanical power of the state. the one system, as the other, marks the end of individualism. the one system, as the other, would make each man the image of his neighbor. the one system, as the other, would hold back the progressive, and, by uniformity of reward, gain uniformity of type. i can look forward to no blissful prospect for a race of men that, under the dominion of the state, at the cost of all freedom of action, at the cost, indeed, of their own true selves, shall enjoy, if one will, a fair abundance of the material blessings of life. some matthew arnold of the future would inevitably say of them in phase like that applied to the puritans of old: "they entered the prison of socialism and had the key turned upon their spirit there for hundreds of years." into that prison of socialism, with broken enterprise and broken energy, as serfs under the mastery of the state, while human personality is preferred to unreasoning mechanism, mankind must hesitate to step. when they shall once have entered within it, when the key shall have been turned upon their spirit and have confined them in narrower straits than even puritanism could have done, it will be left for them to find, in their blind obedience and passive submission, the recompense for the singleness of character, the foresight, and the energy, that they have left behind them. in almost every phase of life, this doctrine of political altruists is equally impracticable and pernicious. in its social results, it involves the substitution of the community in the family's present position. in its political aspects, it involves the absolute dominion of the state over the actions and property of its subjects. thus, though claiming to be an exaltation of the so-called natural rights of liberty and equality, it is in reality their emphatic debasement. it teaches that thoughtless docility is a recompense for stunted enterprise. it magnifies material good at the cost of every rational endowment. it inculcates a self-denial that must result in dwarfing the individual to a mere instrument in the hands of the state for the benefit of his fellows. no such organization of society-no organization that fails to take note of the fact that man must have scope for the exercise and development of his faculties-no such organization of society can ever reach a permanent success. however beneficent its motives, the hypothesis with which it starts can never be realized. the aphorism of emerson, "churches have been built, not upon principles, but upon tropes," is as true in the field of politics as it is in the field of religion. in a like figurative spirit, the followers of communism have reared their edifice; and, looking back upon the finished structure, seeking to discern the base on which it rests, the critic finds, not principles, but tropes. the builders have appealed to a future that has no warrant in the past; and fixing their gaze upon the distant dreamland, captivated by the vision there beheld, entranced by its ideal effulgence, their eyes were blinded to the real conditions of the human problem they had set before them. their enemies have not been slow to note such weakness and mistake; and perhaps it may serve to clear up misconceptions, perhaps it may serve to lessen cant and open the way for fresh and vigorous thought, if we shall once convince ourselves that altruism cannot be the rule of life; that its logical result is the dwarfing of the individual man; and that not by the death of human personality can we hope to banish the evils of our day, and to realize the ideal of all existence, a nobler or purer life. an introduction to the philosophy of law the addresses contained in this book were delivered in the william l. storrs lecture series, , before the law school of yale university, new haven, connecticut an introduction to the philosophy of law by roscoe pound new haven: yale university press london: humphrey milford oxford university press copyright, , by yale university press printed in the united states of america first published, may, . second printing, december, . third printing, may, . fourth printing, april, . to joseph henry beale in grateful acknowledgment of many obligations the present volume is the second work published under the imprint of the yale university press in memory of arthur p. mckinstry, who died in new york city, july , . born in winnebago city, minnesota, on december , , he was graduated from yale college in , and in received the degree of ll.b. _magna cum laude_ from the yale law school, graduating at the head of his class. throughout his career at yale he was noted both for his scholarship and for his active interest in debating, which won for him first the presidency of the freshman union and subsequently the presidency of the yale union. he was also class orator in , and vice-president of the yale chapter of phi beta kappa. following his graduation from the school of law he entered upon the practice of his profession in new york city and early met with the success anticipated for him by his friends,--his firm, of which he was the senior member, being recognized at the time of his death as among the most prominent of the younger firms in the city. he was counsel for the post-graduate hospital of new york, the heckscher foundation for children, of which he was also a trustee, and from to served as associate counsel to the agency of the united states in the american and british claims arbitration. by his untimely death the bar of the city of new york lost a lawyer outstanding for his ability, common sense, conscientiousness, and high sense of justice; and yale university lost an alumnus of whom she was proud, who gave freely of his time and thought to his class of , to the development of the yale school of law, and to the upbuilding of the yale university press, which he served as counsel. preface this book is a written version of lectures delivered before the law school of yale university as storrs lectures in the school year - . a metaphysician who had written on the secret of hegel was congratulated upon his success in keeping the secret. one who essays an introduction to the philosophy of law may easily achieve a like success. his hearers are not unlikely to find that he has presented not one subject but two, presupposing a knowledge of one and giving them but scant acquaintance with the other. if he is a philosopher, he is not unlikely to have tried a highly organized philosophical apparatus upon those fragments of law that lie upon the surface of the legal order, or upon the law as seen through the spectacles of some jurist who had interpreted it in terms of a wholly different philosophical system. looking at the list of authorities relied upon in spencer's justice, and noting that his historical legal data were taken from maine's ancient law and thus came shaped by the political-idealistic interpretation of the english historical school, it is not difficult to perceive why positivist and hegelian came to the same juristic results by radically different methods. on the other hand, if he is a lawyer, he will very likely have been able to do no more than attempt none too intelligently to work with the complicated and delicate engines of others upon the toughest and most resistant of legal materials. until some anglo-american jurist arises with the universal equipment of josef kohler the results of common-law incursions into philosophy will resemble the effort of the editorial writer who wrote upon chinese metaphysics after reading in the encyclopædia britannica under china and metaphysics and combining his information. yet such incursions there must be. philosophy has been a powerful instrument in the legal armory and the times are ripe for restoring it to its old place therein. at least one may show what philosophy has done for some of the chief problems of the science of law, what stands before us to be done in some of the more conspicuous problems of that science today in which philosophy may help us, and how it is possible to look at those problems philosophically without treating them in terms of the eighteenth-century natural law or the nineteenth-century metaphysical jurisprudence which stand for philosophy in the general understanding of lawyers. roscoe pound. harvard law school, october , . contents i. the function of legal philosophy ii. the end of law iii. the application of law iv. liability v. property vi. contract bibliography index i the function of legal philosophy for twenty-four hundred years--from the greek thinkers of the fifth century b. c., who asked whether right was right by nature or only by enactment and convention, to the social philosophers of today, who seek the ends, the ethical basis and the enduring principles of social control--the philosophy of law has taken a leading rôle in all study of human institutions. the perennial struggle of american administrative law with nineteenth-century constitutional formulations of aristotle's threefold classification of governmental power, the stone wall of natural rights against which attempts to put an end to private war in industrial disputes thus far have dashed in vain, and the notion of a logically derivable super-constitution, of which actual written constitutions are faint and imperfect reflections, which has been a clog upon social legislation for a generation, bear daily witness how thoroughly the philosophical legal thinking of the past is a force in the administration of justice of the present. indeed, the everyday work of the courts was never more completely shaped by abstract philosophical ideas than in the nineteenth century when lawyers affected to despise philosophy and jurists believed they had set up a self-sufficient science of law which stood in no need of any philosophical apparatus. in all stages of what may be described fairly as legal development, philosophy has been a useful servant. but in some it has been a tyrannous servant, and in all but form a master. it has been used to break down the authority of outworn tradition, to bend authoritatively imposed rules that admitted of no change to new uses which changed profoundly their practical effect, to bring new elements into the law from without and make new bodies of law from these new materials, to organize and systematize existing legal materials and to fortify established rules and institutions when periods of growth were succeeded by periods of stability and of merely formal reconstruction. such have been its actual achievements. yet all the while its professed aim has been much more ambitious. it has sought to give us a complete and final picture of social control. it has sought to lay down a moral and legal and political chart for all time. it has had faith that it could find the everlasting, unchangeable legal reality in which we might rest, and could enable us to establish a perfect law by which human relations might be ordered forever without uncertainty and freed from need of change. nor may we scoff at this ambitious aim and this lofty faith. they have been not the least factors in the power of legal philosophy to do the less ambitious things which in their aggregate are the bone and sinew of legal achievement. for the attempt at the larger program has led philosophy of law incidentally to do the things that were immediately and practically serviceable, and the doing of these latter, as it were _sub specie aeternitatis_, has given enduring worth to what seemed but by-products of philosophical inquiry. two needs have determined philosophical thinking about law. on the one hand, the paramount social interest in the general security, which as an interest in peace and order dictated the very beginnings of law, has led men to seek some fixed basis of a certain ordering of human action which should restrain magisterial as well as individual wilfulness and assure a firm and stable social order. on the other hand, the pressure of less immediate social interests, and the need of reconciling them with the exigencies of the general security, and of making continual new compromises because of continual changes in society, has called ever for readjustment at least of the details of the social order. it has called continually for overhauling of legal precepts and for refitting of them to unexpected situations. and this has led men to seek principles of legal development by which to escape from authoritative rules which they feared or did not know how to reject, but could no longer apply to advantage. these principles of change and growth, however, might easily prove inimical to the general security, and it was important to reconcile or unify them with the idea of a fixed basis of the legal order. thus the philosopher has sought to construct theories of law and theories of lawmaking and has sought to unify them by some ultimate solving idea equal to the task of yielding a perfect law which should stand fast forever. from the time when lawgivers gave over the attempt to maintain the general security by belief that particular bodies of human law had been divinely dictated or divinely revealed or divinely sanctioned, they have had to wrestle with the problem of proving to mankind that the law was something fixed and settled, whose authority was beyond question, while at the same time enabling it to make constant readjustments and occasional radical changes under the pressure of infinite and variable human desires. the philosopher has worked upon this problem with the materials of the actual legal systems of the time and place, or with the legal materials of the past upon which his generation had built. hence in closer view philosophies of law have been attempts to give a rational account of the law of the time and place, or attempts to formulate a general theory of the legal order to meet the needs of some given period of legal development, or attempts to state the results of the two former attempts universally and to make them all-sufficient for law everywhere and for all time. historians of the philosophy of law have fixed their eyes chiefly on the third. but this is the least valuable part of legal philosophy. if we look at the philosophies of the past with our eyes upon the law of the time and place and the exigencies of the stage of legal development in which they were formulated, we shall be able to appreciate them more justly, and so far as the law of the time and place or the stage of legal development was similar to or different from the present to utilize them for the purposes of today. we know greek law from the beginnings of a legal order as pictured in the homeric poems to the developed commercial institutions of the hellenistic period. in its first stage the kings decide particular causes by divine inspiration. in a second stage the customary course of decision has become a tradition possessed by an oligarchy. later, popular demand for publication results in a body of enactment. at first enactments are no more than declaratory. but it was an easy step from publication of established custom to publication of changes as if they were established custom and thus to conscious and avowed changes and intentional new rules through legislation. the law of athens in the fifth and fourth centuries b. c. was a codified tradition eked out by legislation and individualized in its application through administration of justice by large popular assemblies. thus in spite of formal reduction to writing it preserved the fluidity of primitive law and was able to afford a philosophy for roman law in its stage of equity and natural law--another period of legal fluidity. the development of a strict law out of codified primitive materials, which in rome happily preceded the stage of equity and natural law, did not take place in the greek city. hence the rules of law were applied with an individualized equity that reminds us of the french _droit coutumier_--a mode of application which, with all its good points, must be preceded by a body of strict law, well worked out and well understood, if its results are to be compatible with the general security in a complex social order. in athens of the classical period the word [greek: nómos], meaning both custom and enacted law as well as law in general, reflected the uncertainty with respect to form and the want of uniformity in application, which are characteristic of primitive law, and invited thought as to the reality behind such confusion. we may understand the materials upon which greek philosophers were working if we look at an exhortation addressed by demosthenes to an athenian jury. men ought to obey the law, he said, for four reasons: because laws were prescribed by god, because they were a tradition taught by wise men who knew the good old customs, because they were deductions from an eternal and immutable moral code and because they were agreements of men with each other binding them because of a moral duty to keep their promises. it was not long since that men had thought of legal precepts as divinely revealed, nor was it long since that law had been a tradition of old customs of decision. philosophers were seeking a better basis for them in eternal principles of right. in the meantime in political theory, at least, many of them were the agreements of athenian citizens as to how they should conduct themselves in the inevitable clashes of interests in everyday life. what was needed above all was some theory of the authority of law which should impose bonds of reason upon those who enacted, upon those who applied and upon those who were subject to law in such an amorphous legal order. a sure basis of authority resting upon something more stable than human will and the power of those who govern to impose their will for the time being was required also for the problem of social control in the greek city-state. in order to maintain the general security and the security of social institutions amid a strife of factions in a society organized on the basis of kinship and against the wilfulness of masterful individuals boasting descent from gods, in order to persuade or coerce both the aristocracy and the mass of the low born to maintain in orderly fashion the social _status quo_, it would not do to tell them that law was a gift of god, nor that what offended the aristocrat as a radical bit of popular legislation enacted at the instance of a demagogue was yet to be obeyed because it had been so taught by wise men who knew the good old customs, nor that demos chafing under some item of a class-possessed tradition was bound by it as something to which all citizens had agreed. the exigencies of the social order called for a distinction between [greek: nómos] and [greek: tà nomizómena]--between law and rules of law. the minos, which if not actually a dialogue of plato's seems clearly platonic and very close to plato in time, is taken up with this distinction and gives us a clue to the juristic problems of the time. another example may be seen in aristotle's well-known discussion in the nicomachean ethics. it is significant that greek thinkers always couple custom and enactment; things which today we contrast. these were the formal bases of legal authority. so aristotle considers, not natural _law_ and positive _law_, but what is just in itself--just by nature or just in its idea--and what derives its sole title to be just from convention or enactment. the latter, he says, can be just only with respect to those things which by nature are indifferent. thus when a newly reconstituted city took a living spartan general for its eponymus, no one was bound by nature to sacrifice to brasidas as to an ancestor, but he was bound by enactment and after all the matter was one of convention, which, in a society framed on the model of an organized kindred, required that the citizens have a common heroic ancestor, and was morally indifferent. the distinction was handed down to modern legal science by thomas aquinas, was embodied in anglo-american legal thought by blackstone, and has become staple. but it is quite out of its setting as a doctrine of _mala prohibita_ and _mala in se_. an example of the distinction between law and rules of law has become the basis of an arbitrary line between the traditionally anti-social, penalized by the common law, and recently penalized infringements of newly or partially recognized social interests. although the discrimination between what is just and right by nature and what is just because of custom or enactment has had a long and fruitful history in philosophical jurisprudence and is still a force in the administration of justice, i suspect that the permanent contribution of greek philosophy of law is to be found rather in the distinction between law and rules of law, which lies behind it and has significance for all stages of legal development. roman lawyers came in contact with philosophy in the transition from the strict law to the stage of equity and natural law, and the contact had much to do with enabling them to make the transition. from a purely legal standpoint greek law was in the stage of primitive law. law and morals were still largely undifferentiated. hence greek philosophical thinking of a stage of undifferentiated law and morals lent itself to the identification of the legal and the moral in juristic thinking which was characteristic of the classical roman law. but the strict law obviously was indifferent to morals and in many vital points was quite at variance with the moral ideas of the time. the greek distinction of just by nature and just by convention or enactment was suggested at once by such a situation. moreover the forms of law at the end of the republic and at the beginning of the empire invited a theory of law as something composite, made up of more than one type of precept and resting immediately on more than one basis of authority. cicero enumerates seven forms of law. three of these are not heard of thereafter in roman juristic writing. evidently already in cicero's time they belonged to the past and had ceased to be effective forms of the actual law. the four remaining, namely, statutes, resolutions of the senate, edicts of the magistrates, and the authority of those learned in the law, come to three--legislation, administrative edicts, and juristic reasoning on the basis of the legal tradition. and these correspond to the three elements which made up the law. first, there was the _ius ciuile_: the twelve tables, subsequent legislation, interpretation of both, and the traditional law of the city. second, there was the mass of rules, in form largely procedural, which was contained in the edicts. the growing point of the law had been here and to some extent growth was still going on through this means. indeed this part of the law reached its final form under hadrian. third, there were the writings of the jurisconsults. the growing point of the law had begun to be here and this was the most important form of law in the classical period from augustus to the third century. this part of the law got its final form in the digest of justinian. of the three elements, the first was thought of originally as declared and published custom. later it was thought of as resting on the authority of the state. it was obviously local and peculiar to rome. in form it rested on the legislative power of the roman people, supplemented by a mere interpretation of the legislative command with only the authority of customary acceptance. in greek phrase it rested on convention and enactment. the second purported to be the rules observed by civilized peoples, and on points of commercial law may well have been an approximation thereto. apart from this, however, according to ancient ideas of personal law, the rules which obtained among civilized peoples were eminently a proper law to apply between citizen and non-citizen. in greek phrase it was law by convention. the basis of the third was simply reason. the jurisconsult had no legislative power and no _imperium_. the authority of his _responsum_, as soon as law ceased to be a class tradition, was to be found in its intrinsic reasonableness; in the appeal which it made to the reason and sense of justice of the _iudex_. in greek phrase, if it was law, it was law by nature. as the rise of professional lawyers, the shifting of the growing point of law to juristic writing and the transition from the law of a city to a law of the world called for a legal science, there was need of a theory of what law was that could give a rational account of the threefold body of rules in point of origin and authority, which were actually in operation, and would at the same time enable the jurists to shape the existing body of legal precepts by reason so as to make it possible for them to serve as law for the whole world. the perennial problem of preserving stability and admitting of change was presented in an acute form. above all the period from augustus to the second quarter of the third century was one of growth. but it was revolutionary only if we compare the law at the end of the period with the law of the generation before cicero. the jurisconsults were practical lawyers and the paramount interest in the general security was ever before their eyes. while as an ideal they identified law with morals, they did not cease to observe the strict law where it was applicable nor to develop its precepts by analogy according to the known traditional technique when new phases of old questions came before them. hence what to the greeks was a distinction between right by nature and right by convention or enactment became to them a distinction between law by nature and law by custom or legislation. the latin equivalent of [greek: to dikaion] (the right or the just) became their word for law. they said _ius_ where cicero said _lex_. and this convenient ambiguity, lending itself to identification of what ought to be and what is, gave a scientific foundation for the belief of the jurisconsults that when and where they were not bound by positive law they had but to expound the reason and justice of the thing in order to lay down the law. it must be borne in mind that "nature" did not mean to antiquity what it means to us who are under the influence of the idea of evolution. to the greek, it has been said, the natural apple was not the wild one from which our cultivated apple has been grown, but rather the golden apple of the hesperides. the "natural" object was that which expressed most completely the idea of the thing. it was the perfect object. hence the natural law was that which expressed perfectly the idea of law and a rule of natural law was one which expressed perfectly the idea of law applied to the subject in question; the one which gave to that subject its perfect development. for legal purposes reality was to be found in this ideal, perfect, natural law, and its organ was juristic reason. legislation and the edict, so far as they had any more than a positive foundation of political authority, were but imperfect and ephemeral copies of this jural reality. thus the jurists came to the doctrine of the _ratio legis_, the principle of natural law behind the legal rule, which has been so fruitful both of practical good and of theoretical confusion in interpretation. thus also they came to the doctrine of reasoning from the analogy of all legal rules, whether traditional or legislative, since all, so far as they had jural reality, had it because and to the extent that they embodied or realized a principle of natural law. natural law was a philosophical theory for a period of growth. it arose to meet the exigencies of the stage of equity and natural law, one of the great creative periods of legal history. yet, as we have seen, even the most rapid growth does not permit the lawyer to ignore the demand for stability. the theory of natural law was worked out as a means of growth, as a means of making a law of the world on the basis of the old strict law of the roman city. but it was worked out also as a means of directing and organizing the growth of law so as to maintain the general security. it was the task of the jurists to build and shape the law on the basis of the old local materials so as to make it an instrument for satisfying the wants of a whole world while at the same time insuring uniformity and predicability. they did this by applying a new but known technique to the old materials. the technique was one of legal reason; but it was a legal reason identified with natural reason and worked out and applied under the influence of a philosophical ideal. the conception of natural law as something of which all positive law was but declaratory, as something by which actual rules were to be measured, to which so far as possible they were to be made to conform, by which new rules were to be framed and by which old rules were to be extended or restricted in their application, was a powerful instrument in the hands of the jurists and enabled them to proceed in their task of legal construction with assured confidence. but the juristic empiricism by which the _ius ciuile_ was made into a law of the world needed something more than a theoretical incentive. it was a process of analogical development by extension here and restriction there, of generalization, first in the form of maxims and later by laying down broad principles, and of cautious striking out of new paths, giving them course and direction by trial and error. it was a process very like that by which anglo-american judicial empiricism has been able to make a law of the world on the basis of the legal precepts of seventeenth-century england. such a process required something to give direction to juristic reasoning, to give definite content to the ideal, to provide a reasonably defined channel for juristic thought. this need was met by the philosophical theory of the nature of things and of the law of nature as conformity thereto. in practice jurist-made and judge-made law have been molded consciously, or unconsciously, by ideas as to what law is for; by theories as to the end of law. in the beginnings of law men had no more ambitious conception than a peaceable ordering of society at any cost. but the greeks soon got a better conception of an orderly and peaceable maintaining of the social _status quo_. when the theory of natural law is applied to that conception, we get the notion of an ideal form of the social _status quo_--a form which expresses its nature, a perfect form of the social organization of a given civilization--as that which the legal order is to further and maintain. thus judge and jurist obtain a guide which has served them well ever since. they are to measure all situations by an idealized form of the social order of the time and place and are so to shape the law as to make it maintain and further this ideal of the social _status quo_. we shall meet this idea in various forms throughout the subsequent history of the philosophy of law. it constitutes the permanent contribution of rome to legal philosophy. as soon as scientific legal development begins in the middle ages the law once more comes in contact with philosophy through the study of both in the universities. what was the need of the time which philosophy was called upon to satisfy? following an era of anarchy and disunion and violence men desired order and organization and peace. they called for a philosophy that would bolster up authority and rationalize their desire to impose a legal yoke upon society. the period was one of transition from the primitive law of the germanic peoples to a strict law, through reception of roman law as authoritative legislation or through compilation of the germanic customary law more or less after the roman model, as in the north of france, or through declaration of the customary law in reported decisions of strong central courts, as in england. thus it soon became a period of strict law. scholastic philosophy, with its reliance upon dialectic development of authoritatively given premises, its faith in formal logic and its central problem of putting reason as a foundation under authority, responded exactly to these demands. it is no misnomer to style the commentators or post-glossators of the fourteenth and fifteenth centuries the "scholastic jurists." for it was in large part the philosophy that met the needs of the time so completely which enabled them to put the roman law of justinian in a form to be received and administered in the europe of nine centuries later. while they made the gloss into law in place of the text and made many things over, as they had to be made over if they were to fit a wholly different social order, the method of dialectical development of absolute and unquestioned premises made it appear that nothing had been done but to develop the logical implications of an authoritative text. men could receive the law of bartolus so long as they believed it but the logical unfolding of the pre-existing content of the binding legislation of justinian. it is interesting to note in fortescue an application of this to the rules of the common law in its stage of strict law. he assumes that these rules are the principles of which he reads in the commentators on aristotle and that they may be compared to the axioms of the geometrician. the time had not yet come to call rules or principles or axioms in question. the need was to rationalize men's desire to be governed by fixed rules and to reconcile, in appearance at least, the change and growth which are inevitable in all law with the need men felt of having a fixed, unchangeable, authoritative rule. the scholastic philosophy did notable service in these respects and, i venture to think, left as a permanent contribution to legal science the method of insuring certainty by logical development of the content of authoritatively defined conceptions. on the breakdown of the feudal social organization, the rise of commerce and the era of discovery, colonization and exploitation of the natural resources of new continents, together with the rise of nations in place of loose congeries of vassal-held territories, called for a national law unified within the national domain. starkey proposed codification to henry viii and dumoulin urged harmonizing and unifying of french customary law with eventual codification. the protestant jurist-theologians of the sixteenth century found a philosophical basis for satisfying these desires of the time in the divinely ordained state and in a natural law divorced from theology and resting solely upon reason, reflecting the boundless faith in reason which came in with the renaissance. thus each national jurist might work out his own interpretation of natural law by dint of his own reason, as each christian might interpret the word of god for himself as his own reason and conscience showed the way. on the other hand, the catholic jurists of the counter-reformation found a philosophical basis for satisfying these same desires in a conception of natural law as a system of limitations on human action expressing the nature of man, that is, the ideal of man as a rational creature, and of positive law as an ideal system expressing the nature of a unified state. for the moment these ideas were put at the service of a growing royal authority and bore fruit in the byzantine theory of sovereignty which became classical in public law. in private law they soon took quite another turn. for a new period of growth, demanded by the expansion of society and the breaking over the bonds of authority, was at hand to make new and wholly different demands upon philosophy. glossators and commentators had made or shaped the law out of roman materials for a static, locally self-sufficient, other-worldly society, revering authority because authority had saved it from what it feared, regarding chiefly the security of social institutions and negligent of the individual life because in its polity the individual lived his highest life in the life of another whose greatness was the greatness of those who served him. in the seventeenth and eighteenth centuries jurists were required to make or shape a law out of these medievalized roman materials to satisfy the wants of an active and shifting, locally interdependent, this-worldly society, impatient of authority because authority stood in the way of what it desired, and jealously individualist, since it took free individual self-assertion to be the highest good. in england the strict law made for feudal england out of germanic materials, sometimes superficially romanized, was likewise to be made over to do the work of administering justice to a new world. a period of legal development resulted which is strikingly analogous to the classical period of roman law. once more philosophy took the helm. once more there was an infusion into law of ideas from without the law. once more law and morals were identified in juristic thinking. once more men held as a living tenet that all positive law was declaratory of natural law and got its real authority from the rules of natural law which it declared. once more juridical idealism led the jurist to survey every corner of the actual law, measuring its rules by reason and shaping, extending, restricting or building anew in order that the actual legal edifice might be a faithful copy of the ideal. but the theory of natural law, devised for a society organized on the basis of kinship and developed for a society organized on the basis of relations, did not suffice for a society which conceived of itself as an aggregate of individuals and was reorganizing on the basis of competitive self-assertion. again the convenient ambiguity of _ius_, which could mean not only right and law but "a right," was pressed into service and _ius naturale_ gave us natural rights. the ultimate thing was not natural law as before, not merely principles of eternal validity, but natural rights, certain qualities inherent in man and demonstrated by reason, which natural law exists to secure and to which positive law ought to give effect. later these natural rights came to be the bane of juristic thinking. yet they achieved great things in their day. under the influence of this theory jurists worked out a scheme of "legal rights" that effectively secures almost the whole field of individual interests of personality and individual interests of substance. it put a scientific foundation under the medieval scheme of the claims and duties involved in the relation of king to tenants in chief, out of which the judges had developed the immemorial rights of englishmen, and enabled the common-law rights of englishmen to become the natural rights of man, intrenched as such in our bills of rights. thus it served as a needed check upon the exuberance of growth stimulated by the theory of natural law. it kept a certain needed rigidity in a time when law threatened to become wholly fluid. and this steadying influence was strengthened from another quarter. the roman jurisconsult was teacher, philosopher and practitioner in one. as a lawyer he had the exigencies of the general security ever before him in that he felt the imperative need of being able to advise with assurance what tribunals would do on a given state of facts. the seventeenth- and eighteenth-century jurists were chiefly teachers and philosophers. happily they had been trained to accept the roman law as something of paramount authority and so were able to give natural law a content by assuming its identity with an ideal form of the law which they knew and in which they had been trained. as the roman jurisconsult built in the image of the old law of the city, they built on idealized roman lines. if roman law could no longer claim to be embodied authority, they assumed that, corrected in its details by a juristic-philosophical critique, it was embodied reason. both of these ideas, natural rights and an ideal form of the actual law of the time and place as the jural order of nature, were handed down to and put to new uses in the nineteenth century. in the growing law of the seventeenth and eighteenth centuries they were but guides to lead growth into definite channels and insure continuity and permanence in the development of rules and doctrines. whether natural rights were conceived as qualities of the natural man or as deductions from a compact which expressed the nature of man, the point was, not that the jurist should keep his hands off lest by devising some new precept or in reshaping some old doctrine he infringe a fundamental right, but that he should use his hand freely and skilfully to shape rules and doctrines and institutions that they might be instruments of achieving the ideal of human existence in a "state of nature." for the state of nature, let us remember, was a state which expressed the ideal of man as a rational creature. if a reaction from the formal over-refinement of the eighteenth century came to identify this with a primitive simplicity, in juristic hands it was the simplicity of a rational ideal in place of the cumbrous complexity of legal systems which had become fixed in their ideas in the stage of the strict law. thus pothier, discussing the roman categories of contract and rejecting them for the "natural" principle that man, as a moral creature, should keep his engagements, declares that the complex and arbitrary system of roman law, made up of successive additions at different times to a narrow primitive stock of legally enforceable promises, is not adhered to because it is "remote from simplicity." again the ideal form of the actual law, which gave content to natural law, was not an ideal form of historically found principles, constraining development for all time within historically fixed bounds, as in the nineteenth century, but an ideal form of the _ratio legis_--of the reason behind the rule or doctrine or institution whereby it expressed the nature of the rational human being guided only by reason and conscience in his relations with similar beings similarly guided. attempts to fix the immutable part of law, to lay out legal charts for all time, belong to the transition to the maturity of law. the eighteenth-century projects for codification and the era of codification on the continent, in which the results of two centuries of growth were put in systematic form to serve as the basis of a juristic new start, in form rested upon the theory of natural law. by a sheer effort of reason the jurist could work out a complete system of deductions from the nature of man and formulate them in a perfect code. go to, let him do so! this was not the mode of thought of a period of growth but rather of one when growth had been achieved and the philosophical theory of a law of nature was called upon for a new kind of service. at the end of the eighteenth century lord kenyon had determined that "mansfield's innovations" were not to go on. indeed some of them were to be undone. equity was soon to be systematized by lord eldon and to become "almost as fixed and settled" as the law itself. the absorption of the law merchant was complete in its main lines although in details it went on for two decades. moreover the legislative reform movement which followed only carried into detail the ideas which had come into the law in the two preceding centuries. for a time the law was assimilating what had been taken up during the period of growth and the task of the jurist was one of ordering, harmonizing and systematizing rather than of creating. likewise law had been codifying on the continent. down to the end of the nineteenth century the codes, whatever their date, in reality speak from the end of the eighteenth century and with few exceptions are all but copies of the french code of . where there were no codes, the hegemony of the historical school led to a movement back to the law of justinian which would have undone much of the progress of the last centuries. the energies of jurists were turned for a time to analysis, classification and system as their sole task. where codes obtained, analytical development and dogmatic exposition of the text, as a complete and final statement of the law, was to occupy jurists exclusively for the next hundred years. we may well think of this time, as it thought of itself, as a period of maturity of law. the law was taken to be complete and self-sufficient, without antinomies and without gaps, wanting only arrangement, logical development of the implications of its several rules and conceptions, and systematic exposition of its several parts. legislation might be needed on occasion in order to get rid of archaisms which had survived the purgation of the two prior centuries. for the rest, history and analysis, bringing out the idea behind the course of development of legal doctrines and unfolding their logical consequences, were all the apparatus which the jurist required. he soon affected to ignore philosophy and often relegated it to the science of legislation, where within narrow limits it might still be possible to think of creating. yet the nineteenth century was no more able to get on without philosophy of law than were its predecessors. in place of one universally recognized philosophical method we find four well-marked types. but they all come to the same final results, are marked by the same spirit and put the same shackles upon juristic activity. they are all modes of rationalizing the juristic desires of the time, growing out of the pressure of the interest in the general security by way of reaction from a period of growth and in the security of acquisitions and security of transactions in a time of economic expansion and industrial enterprise. in the united states, since the natural law of the eighteenth-century publicists had become classical, we relied largely upon an american variant of natural law. it was not that natural law expressed the nature of man. rather it expressed the nature of government. one form of this variant was due to our doctrine that the common law of england was in force only so far as applicable to our conditions and our institutions. the attempt to put this doctrine philosophically regards an ideal form of the received common law as natural law and takes natural law to be a body of deductions from or implications of american institutions or the nature of our polity. but yesterday the supreme court of one of our states laid down dogmatically that primogeniture in estates tail (which by the way is still possible in one of the oldest of the original states) could not co-exist with "the axioms of the constitution" which guarantees to each state a republican form of government. more generally, however, the american variant of natural law grew out of an attempt at philosophical statement of the power of our courts with respect to unconstitutional legislation. the constitution was declaratory of principles of natural constitutional law which were to be deduced from the nature of free government. hence constitutional questions were always only in terms questions of constitutional interpretation. they were questions of the meaning of the document, as such, only in form. in substance they were questions of a general constitutional law which transcended the text; of whether the enactment before the court conformed to principles of natural law "running back of all constitutions" and inherent in the very idea of a government of limited powers set up by a free people. now that courts with few exceptions have given over this mode of thinking and the highest court in the land has come to apply the limitations of the fifth and fourteenth amendments as legal standards, there are some who say that we no longer have a constitutional law. for how can there be law unless as a body of rules declaring a natural law which is above all human enactment? the interpretation of a written instrument, no matter by whom enacted, may be governed by law, indeed, but can yield no law. such ideas die hard. in the language of the eighteenth century, our courts sought to make our positive law, and in particular our legislation, express the nature of american political institutions; they sought so to shape it and restrain it as to make it give effect to an ideal of our polity. later in the nineteenth century natural law as a deduction from american institutions or from "free government" gave way to a metaphysical-historical theory worked out in continental europe. natural rights were deductions from a fundamental metaphysically demonstrable datum of individual free will, and natural law was an ideal critique of positive law whereby to secure these rights in their integrity. history showed us the idea of individual liberty realizing itself in legal institutions and rules and doctrines; jurisprudence developed this idea into its logical consequences and gave us a critique of law whereby we might be delivered from futile attempts to set up legal precepts beyond the necessary minimum for insuring the harmonious co-existence of the individual and his fellows. this mode of thought was well suited to a conception of law as standing between the abstract individual and society and protecting the natural rights of the former against the latter, which american law had derived from the seventeenth-century contests in england between courts and crown. it was easy to generalize this as a contest between the individual and society, and it became more easy to do so when the common-law rights of englishmen secured by common-law courts against the crown had become the natural rights of man secured to individual men as against the state by the bills of rights. others in england and america turned to a utilitarian-analytical theory. the legislator was to be guided by a principle of utility. that which made for the greatest total of individual happiness was to be the lawmaker's standard. the jurist was to find universal principles by analysis of the actual law. he had nothing to do with creative activity. his work was to be that of orderly logical development of the principles reached by analysis of what he found already given in the law and improvement of the form of the law by system and logical reconciliation of details. as it was assumed that the maximum of abstract individual free self-assertion was the maximum of human happiness, in the result the legislator was to be busied with formal improvement of the law and rendering it, as bentham put it, more "cognoscible," while the jurist was exercising a like restricted function so far as he could work with materials afforded exclusively by the law itself. not unnaturally metaphysical and historical and analytical jurists, at the end of the century, were quite willing to say that their several methods were not exclusive but were complementary. toward the end of the last century a positivist sociological thinking tended to supersede the metaphysical-historical and the utilitarian-analytical. all phenomena were determined by inexorable natural laws to be discovered by observation. moral and social and hence legal phenomena were governed by laws as completely beyond the power of conscious human control as the movements of the planets. we might discover these laws by observation of social phenomena and might learn to submit to them intelligently instead of rashly or ignorantly defying them. but we could hope to do no more. except as he could learn to plot some part of the inevitable curve of legal development and save us from futile flyings in the face of the laws by which legal evolution was inevitably governed, the jurist was powerless. many combined this mode of thought with or grafted it on the metaphysical-historical theory and fought valiantly against the social legislation of the last decade of the nineteenth century and the first decade of the present century with this reinforced juristic pessimism as a base. superficially it appeared that the greek idea of the naturally just, which in its roman form of natural law and its eighteenth-century form of natural rights had made for a creative legal science as long as such a science had existed, had at length exhausted its possibilities. today, however, we hear of a revival of natural law. philosophy of law is raising its head throughout the world. we are asked to measure rules and doctrines and institutions and to guide the application of law by reference to the end of law and to think of them in terms of social utility. we are invited to subsume questions of law and of the application of law under the social ideal of the time and place. we are called upon to formulate the jural postulates of the civilization of the time and place and to measure law and the application of law thereby in order that law may further civilization and that the legal materials handed down with the civilization of the past may be made an instrument of maintaining and furthering the civilization of the present. we are told that observation shows us social interdependence through similarity of interest and through division of labor as the central fact in human existence and are told to measure law and the application of law functionally by the extent to which they further or interfere with this interdependence. for the era of legal self-sufficiency is past. the work of assimilating what had been received into the law from without during the period of equity and natural law has been done. the possibilities of analytical and historical development of the classical materials have been substantially exhausted. while jurists have been at these tasks, a new social order has been building which makes new demands and presses upon the legal order with a multitude of unsatisfied desires. once more we must build rather than merely improve; we must create rather than merely order and systematize and logically reconcile details. one has but to compare the law of today on such subjects as torts, or public utilities or administrative law with the law of a generation ago to see that we are in a new stage of transition; to see that the juristic pessimism of the immediate past, which arose to save us from taking in more from without while what had been taken already remained undigested, will serve no longer; and to see that the jurist of tomorrow will stand in need of some new philosophical theory of law, will call for some new philosophical conception of the end of law and at the same time will want some new steadying philosophical conception to safeguard the general security, in order to make the law which we hand down to him achieve justice in his time and place. ii the end of law making or finding law, call it which you will, presupposes a mental picture of what one is doing and of why he is doing it. hence the nature of law has been the chief battleground of jurisprudence since the greek philosophers began to argue as to the basis of the law's authority. but the end of law has been debated more in politics than in jurisprudence. in the stage of equity and natural law the prevailing theory of the nature of law seemed to answer the question as to its end. in the maturity of law the law was thought of as something self-sufficient, to be judged by an ideal form of itself, and as something which could not be made, or, if it could be made, was to be made sparingly. the idea of natural rights seemed to explain incidentally what law was for and to show that there ought to be as little of it as possible, since it was a restraint upon liberty and even the least of such restraint demanded affirmative justification. thus, apart from mere systematic and formal improvement, the theory of lawmaking in the maturity of law was negative. it told us chiefly how we should not legislate and upon what subjects we should refrain from lawmaking. having no positive theory of creative lawmaking, the last century was little conscious of requiring or holding a theory as to the end of law. but in fact it held such a theory and held it strongly. as ideas of what law is for are so largely implicit in ideas of what law is, a brief survey of ideas of the nature of law from this standpoint will be useful. no less than twelve conceptions of what law is may be distinguished. first, we may put the idea of a divinely ordained rule or set of rules for human action, as for example, the mosaic law, or hammurapi's code, handed him ready-made by the sun god, or manu, dictated to the sages by manu's son bhrigu in manu's presence and by his direction. second, there is an idea of law as a tradition of the old customs which have proved acceptable to the gods and hence point the way in which man may walk with safety. for primitive man, surrounded by what seem vengeful and capricious powers of nature, is in continual fear of giving offence to these powers and thus bringing down their wrath upon himself and his fellows. the general security requires that men do only those things and do them only in the way which long custom has shown at least not displeasing to the gods. law is the traditional or recorded body of precepts in which that custom is preserved and expressed. whenever we find a body of primitive law possessed as a class tradition by a political oligarchy it is likely to be thought of in this way just as a body of like tradition in the custody of a priesthood is certain to be thought of as divinely revealed. a third and closely related idea conceives of law as the recorded wisdom of the wise men of old who had learned the safe course or the divinely approved course for human conduct. when a traditional custom of decision and custom of action has been reduced to writing in a primitive code it is likely to be thought of in this way, and demosthenes in the fourth century b. c. could describe the law of athens in these terms. fourth, law may be conceived as a philosophically discovered system of principles which express the nature of things, to which, therefore, man ought to conform his conduct. such was the idea of the roman jurisconsult, grafted, it is true, on the second and third ideas and on a political theory of law as the command of the roman people, but reconciled with them by conceiving of tradition and recorded wisdom and command of the people as mere declarations or reflections of the philosophically ascertained principles, to be measured and shaped and interpreted and eked out thereby. in the hands of philosophers the foregoing conception often takes another form so that, fifth, law is looked upon as a body of ascertainments and declarations of an eternal and immutable moral code. sixth, there is an idea of law as a body of agreements of men in politically organized society as to their relations with each other. this is a democratic version of the identification of law with rules of law and hence with the enactments and decrees of the city-state which is discussed in the platonic minos. not unnaturally demosthenes suggests it to an athenian jury. very likely in such a theory a philosophical idea would support the political idea and the inherent moral obligation of a promise would be invoked to show why men should keep the agreements made in their popular assemblies. seventh, law has been thought of as a reflection of the divine reason governing the universe; a reflection of that part which determines the "ought" addressed by that reason to human beings as moral entities, in distinction from the "must" which it addresses to the rest of creation. such was the conception of thomas aquinas, which had great currency down to the seventeenth century and has had much influence ever since. eighth, law has been conceived as a body of commands of the sovereign authority in a politically organized society as to how men should conduct themselves therein, resting ultimately on whatever basis was held to be behind the authority of that sovereign. so thought the roman jurists of the republic and of the classical period with respect to positive law. and as the emperor had the sovereignty of the roman people devolved upon him, the institutes of justinian could lay down that the will of the emperor had the force of a law. such a mode of thought was congenial to the lawyers who were active in support of royal authority in the centralizing french monarchy of the sixteenth and seventeenth centuries and through them passed into public law. it seemed to fit the circumstances of parliamentary supremacy in england after , and became the orthodox english juristic theory. also it could be made to fit a political theory of popular sovereignty in which the people were thought of as succeeding to the sovereignty of parliament at the american revolution or of the french king at the french revolution. a ninth idea of law takes it to be a system of precepts discovered by human experience whereby the individual human will may realize the most complete freedom possible consistently with the like freedom of will of others. this idea, held in one form or another by the historical school, divided the allegiance of jurists with the theory of law as command of the sovereign during almost the whole of the past century. it assumed that the human experience by which legal principles were discovered was determined in some inevitable way. it was not a matter of conscious human endeavor. the process was determined by the unfolding of an idea of right and justice or an idea of liberty which was realizing itself in human administration of justice, or by the operation of biological or psychological laws or of race characters, whose necessary result was the system of law of the time and people in question. again, tenth, men have thought of law as a system of principles, discovered philosophically and developed in detail by juristic writing and judicial decision, whereby the external life of man is measured by reason, or in another phase, whereby the will of the individual in action is harmonized with those of his fellow men. this mode of thought appeared in the nineteenth century after the natural-law theory in the form in which it had prevailed for two centuries had been abandoned and philosophy was called upon to provide a critique for systematic arrangement and development of details. eleventh, law has been thought of as a body or system of rules imposed on men in society by the dominant class for the time being in furtherance, conscious or unconscious, of its own interest. this economic interpretation of law takes many forms. in an idealistic form it thinks of the inevitable unfolding of an economic idea. in a mechanical sociological form it thinks of class struggle or a struggle for existence in terms of economics, and of law as the result of the operation of forces or laws involved in or determining such struggles. in a positivist-analytical form it thinks of law as the command of the sovereign, but of that command as determined in its economic content by the will of the dominant social class, determined in turn by its own interest. all of these forms belong to transition from the stability of the maturity of law to a new period of growth. when the idea of the self-sufficiency of law gives way and men seek to relate jurisprudence to the other social sciences, the relation to economics challenges attention at once. moreover in a time of copious legislation the enacted rule is easily taken as the type of legal precept and an attempt to frame a theory of legislative lawmaking is taken to give an account of all law. finally, twelfth, there is an idea of law as made up of the dictates of economic or social laws with respect to the conduct of men in society, discovered by observation, expressed in precepts worked out through human experience of what would work and what not in the administration of justice. this type of theory likewise belongs to the end of the nineteenth century, when men had begun to look for physical or biological bases, discoverable by observation, in place of metaphysical bases, discoverable by philosophical reflection. another form finds some ultimate social fact by observation and develops the logical implications of that fact much after the manner of the metaphysical jurist. this again results from the tendency in recent years to unify the social sciences and consequent attention to sociological theories. digression is worth while in order to note that each of the foregoing theories of law was in the first instance an attempt at a rational explanation of the law of the time and place or of some striking element therein. thus, when the law has been growing through juristic activity, a philosophical theory of law, as declaratory of philosophically ascertainable principles, has obtained. when and where the growing point of law has been in legislation, a political theory of law as the command of the sovereign has prevailed. when the law has been assimilating the results of a prior period of growth, a historical theory of law as something found by experience, or a metaphysical theory of law as an idea of right or of liberty realizing in social and legal development, has tended to be dominant. for jurists and philosophers do not make these theories as simple matters of logic by inexorable development of philosophical fundamentals. having something to explain or to expound, they endeavor to understand it and to state it rationally and in so doing work out a theory of what it is. the theory necessarily reflects the institution which it was devised to rationalize, even though stated universally. it is an attempt to state the law, or the legal institution of the time and place in universal terms. its real utility is likely to be in its enabling us to understand that body of law or that institution and to perceive what the men of the time were seeking to do with them or to make of them. accordingly analysis of these theories is one way of getting at the ends for which men have been striving through the legal order. what common elements may we find in the foregoing twelve pictures of what law is? for one thing, each shows us a picture of some ultimate basis, beyond reach of the individual human will, that stands fast in the whirl of change of which life is made up. this steadfast ultimate basis may be thought of as the divine pleasure or will or reason, revealed immediately or mediately through a divinely ordained immutable moral code. it may be put in the form of some ultimate metaphysical datum which is so given us that we may rest in it forever. it may be portrayed as certain ultimate laws which inexorably determine the phenomena of human conduct. or it may be described in terms of some authoritative will for the time and place, to which the wills of others are subjected, that will deriving its authority ultimately and absolutely in some one of the preceding forms, so that what it does is by and large in no wise a matter of chance. this fixed and stable starting point is usually the feature upon which the chief emphasis is placed. next we shall find in all theories of the nature of law a picture of a determinate and mechanically absolute mode of proceeding from the fixed and absolute starting point. the details may come from this starting point through divine revelation or a settled authoritative tradition or record, or an inevitable and infallible philosophical or logical method, or an authoritative political machinery, or a scientific system of observation, or historically verifiable ideas which are logically demonstrable to be implications of the fundamental metaphysically given datum. third, we shall see in these theories a picture of a system of ordering human conduct and adjusting human relations resting upon the ultimate basis and derived therefrom by the absolute process. in other words, they all picture, not merely an ordering of human conduct and adjustment of human relations, which we have actually given, but something more which we should like to have, namely, a doing of these things in a fixed, absolutely predetermined way, excluding all merely individual feelings or desires of those by whom the ordering and adjustment are carried out. thus in these subconscious picturings of the end of law it seems to be conceived as existing to satisfy a paramount social want of general security. certainly the nineteenth-century jurist had this conception. but is this because the function of law is limited to satisfaction of that one want, or is it because that want has been most conspicuous among those which men have sought to satisfy through law, and because the ordering of human conduct by the force of politically organized society has been adapted chiefly to satisfying that one want in the social order of the past? if we turn to the ideas which have obtained in conscious thinking about the end of law, we may recognize three which have held the ground successively in legal history and a fourth which is beginning to assert itself. the first and simplest idea is that law exists in order to keep the peace in a given society; to keep the peace at all events and at any price. this is the conception of what may be called the stage of primitive law. it puts satisfaction of the social want of general security, stated in its lowest terms, as the purpose of the legal order. so far as the law goes, other individual or social wants are ignored or are sacrificed to this one. accordingly the law is made up of tariffs of exact compositions for every detailed injury instead of principles of exact reparation, of devices to induce or coerce submission of controversies to adjudication instead of sanctions, of regulation of self-help and self-redress instead of a general prohibition thereof, and of mechanical modes of trial which at any rate do not admit of argument instead of rational modes of trial involving debate and hence dispute and so tending to defeat the purpose of the legal order. in a society organized on the basis of kinship, in which the greater number of social wants were taken care of by the kin-organizations, there are two sources of friction: the clash of kin-interests, leading to controversies of one kindred with another, and the kinless man, for whom no kin-organization is responsible, who also has no kin-organization to stand behind him in asserting his claims. peace between kindreds and peace between clansmen and the growing mass of non-gentile population is the unsatisfied social want to which politically organized society must address itself. the system of organized kindreds gradually breaks down. groups of kinsmen cease to be the fundamental social units. kin-organization is replaced by political organization as the primary agency of social control. the legal unit comes to be the free citizen or the free man. in this transition regulation of self-redress and prevention of private war among those who have no strong clan-organizations to control them or respond for them are demanded by the general security. the means of satisfying these social wants are found in a legal order conceived solely in terms of keeping the peace. greek philosophers came to conceive of the general security in broader terms and to think of the end of the legal order as preservation of the social _status quo_. they came to think of maintaining the general security mediately through the security of social institutions. they thought of law as a device to keep each man in his appointed groove in society and thus prevent friction with his fellows. the virtue on which they insisted was _sophrosyne_, knowing the limits which nature fixes for human conduct and keeping within them. the vice which they denounced was _hybris_, wilful bondbreaking--wilful transgression of the socially appointed bounds. this mode of thinking follows the substitution of the city-state political organization of society for the kin-organization. the organized kindreds were still powerful. an aristocracy of the kin-organized and kin-conscious, on the one hand, and a mass of those who had lost or severed their ties of kinship, or had come from without, on the other hand, were in continual struggle for social and political mastery. also the politically ambitious individual and the masterful aristocrat were continually threatening the none too stable political organization through which the general security got a precarious protection. the chief social want, which no other social institution could satisfy, was the security of social institutions generally. in the form of maintenance of the social _status quo_ this became the greek and thence the roman and medieval conception of the end of law. transition from the idea of law as a device to keep the peace to the idea of law as a device to maintain the social _status quo_ may be seen in the proposition of heraclitus, that men should fight for their laws as for the walls of their city. in plato the idea of maintaining the social order through the law is fully developed. the actual social order was by no means what it should be. men were to be reclassified and everyone assigned to the class for which he was best fitted. but when the classification and the assignment had been made the law was to keep him there. it was not a device to set him free that he might find his own level by free competition with his fellows and free experiment with his natural powers. it was a device to prevent such disturbances of the social order by holding each individual to his appointed place. as plato puts it, the shoemaker is to be only a shoemaker and not a pilot also; the farmer is to be only a farmer and not a judge as well; the soldier is to be only a soldier and not a man of business besides; and if a universal genius who through wisdom can be everything and do everything comes to the ideal city-state, he is to be required to move on. aristotle puts the same idea in another way, asserting that justice is a condition in which each keeps within his appointed sphere; that we first take account of relations of inequality, treating individuals according to their worth, and then secondarily of relations of equality in the classes into which their worth requires them to be assigned. when st. paul exhorted wives to obey their husbands, and servants to obey their masters, and thus everyone to exert himself to do his duty in the class where the social order had put him, he expressed this greek conception of the end of law. roman lawyers made the greek philosophical conception into a juristic theory. for the famous three precepts to which the law is reduced in justinian's institutes come to this: everyone is to live honorably; he is to "preserve moral worth in his own person" by conforming to the conventions of the social order. everyone is to respect the personality of others; he is not to interfere with those interests and powers of action, conceded to others by the social order, which make up their legal personality. everyone is to render to everyone else his own; he is to respect the acquired rights of others. the social system has defined certain things as belonging to each individual. justice is defined in the institutes as the set and constant purpose of giving him these things. it consists in rendering them to him and in not interfering with his having and using them within the defined limits. this is a legal development of the greek idea of harmoniously maintaining the social _status quo_. the later eastern empire carried it to the extreme. stability was to be secured by rigidly keeping everyone to his trade or calling and his descendants were to follow him therein. thus the harmony of society and the social order would not be disturbed by individual ambition. in the middle ages the primitive idea of law as designed only to keep the peace came back with germanic law. but the study of roman law presently taught the roman version of the greek conception and the legal order was thought of once more as an orderly maintenance of the social _status quo_. this conception answered to the needs of medieval society, in which men had found relief from anarchy and violence in relations of service and protection and a social organization which classified men in terms of such relations and required them to be held to their functions as so determined. where the greeks thought of a stationary society corrected from time to time with reference to its nature or ideal, the middle ages thought of a stationary society resting upon authority and determined by custom or tradition. to each, law was a system of precepts existing to maintain this stationary society as it was. in the feudal social order reciprocal duties involved in relations established by tradition and taken to rest on authority were the significant legal institutions. with the gradual disintegration of this order and the growing importance of the individual in a society engaged in discovery, colonization and trade, to secure the claims of individuals to assert themselves freely in the new fields of human activity which were opening on every side became a more pressing social want than to maintain the social institutions by which the system of reciprocal duties was enforced and the relations involving those duties were preserved. men did not so much desire that others perform for them the duties owing in some relation, as that others keep hands off while they achieved what they might for themselves in a world that continually afforded new opportunities to the active and the daring. the demand was no longer that men be kept in their appointed grooves. friction and waste were apprehended, not from men getting out of these grooves, but from attempts to hold them there by means devised to meet the needs of a different social order whereby they were made to chafe under arbitrary restraint and their powers were not utilized in the discovery and exploitation of the resources of nature, to which human powers were to be devoted in the succeeding centuries. accordingly the end of law comes to be conceived as a making possible of the maximum of individual free self-assertion. transition to the newer way of thinking may be seen in the spanish jurist-theologians of the sixteenth century. their juristic theory was one of natural limits of activity in the relations of individuals with each other, that is, of limits to human action which expressed the rational ideal of man as a moral creature and were imposed upon men by reason. this theory differs significantly from the idea of antiquity, although it goes by the old name. the greeks thought of a system of limiting men's activities in order that each might be kept in the place for which he was best fitted by nature--the place in which he might realize an ideal form of his capacities--and thus to preserve the social order as it stands or as it shall stand after a rearrangement. the sixteenth-century jurists of the counter-reformation held that men's activities were naturally limited, and hence that positive law might and should limit them in the interest of other men's activities, because all men have freedom of will and ability to direct themselves to conscious ends. where aristotle thought of inequalities arising from the different worth of individual men and their different capacities for the things which the social order called for, these jurists thought of a natural (i.e., ideal) equality, involved in the like freedom of will and the like power of conscious employment of one's faculties inherent in all men. hence law did not exist to maintain the social _status quo_ with all its arbitrary restraints on the will and on employment of individual powers; it existed rather to maintain the natural equality which often was threatened or impaired by the traditional restrictions on individual activity. since this natural equality was conceived positively as an ideal equality in opportunity to do things, it could easily pass into a conception of free individual self-assertion as the thing sought, and of the legal order as existing to make possible the maximum thereof in a world abounding in undiscovered resources, undeveloped lands and unharnessed natural forces. the latter idea took form in the seventeenth century and prevailed for two centuries thereafter, culminating in the juristic thought of the last generation. law as a securing of natural equality became law as a securing of natural rights. the nature of man was expressed by certain qualities possessed by him as a moral, rational creature. the limitations on human activity, of which the spanish jurist-theologians had written, got their warrant from the inherent moral qualities of men which made it right for them to have certain things and do certain things. these were their natural rights and the law existed simply to protect and give effect to these rights. there was to be no restraint for any other purpose. except as they were to be compelled to respect the rights of others, which the natural man or ideal man would do without compulsion as a matter of reason, men were to be left free. in the nineteenth century this mode of thought takes a metaphysical turn. the ultimate thing for juristic purposes is the individual consciousness. the social problem is to reconcile conflicting free wills of conscious individuals independently asserting their wills in the varying activities of life. the natural equality becomes an equality in freedom of will. kant rationalized the law in these terms as a system of principles or universal rules, to be applied to human action, whereby the free will of the actor may co-exist along with the free will of everyone else. hegel rationalized the law in these terms as a system of principles wherein and whereby the idea of liberty was realizing in human experience. bentham rationalized it as a body of rules, laid down and enforced by the state's authority, whereby the maximum of happiness, conceived in terms of free self-assertion, was secured to each individual. its end was to make possible the maximum of free individual action consistent with general free individual action. spencer rationalized it as a body of rules, formulating the "government of the living by the dead," whereby men sought to promote the liberty of each limited only by the like liberty of all. in any of these ways of putting it, the end of law is to secure the greatest possible general individual self-assertion; to let men do freely everything they may consistently with a like free doing of everything they may by their fellow men. this is indeed a philosophy of law for discoverers and colonizers and pioneers and traders and entrepreneurs and captains of industry. until the world became crowded, it served well to eliminate friction and to promote the widest discovery and utilization of the natural resources of human existence. looking back at the history of this conception, which has governed theories of the end of law for more than two hundred years, we may note that it has been put to three uses. it has been used as a means of clearing away the restraints upon free economic activity which accumulated during the middle ages as incidents of the system of relational duties and as expressions of the idea of holding men to their place in a static social order. this negative side played an important part in the english legislative reform movement in the last century. the english utilitarians insisted upon removal of all restrictions upon individual free action beyond those necessary for securing like freedom on the part of others. this, they said, was the end of legislation. again it has been used as a constructive idea, as in the seventeenth and eighteenth centuries, when a commercial law which gave effect to what men did as they willed it, which looked at intention and not at form, which interpreted the general security in terms of the security of transactions and sought to effectuate the will of individuals to bring about legal results, was developed out of roman law and the custom of merchants through juristic theories of natural law. finally it was used as a stabilizing idea, as in the latter part of the nineteenth century, when men proved that law was an evil, even if a necessary evil, that there should be as little law made as possible, since all law involved restraint upon free exertion of the will, and hence that jurist and legislator should be content to leave things legal as they are and allow the individual "to work out in freedom his own happiness or misery" on that basis. when this last stage in the development of the idea of law as existing to promote or permit the maximum of free individual self-assertion had been reached, the juristic possibilities of the conception had been exhausted. there were no more continents to discover. natural resources had been discovered and exploited and the need was for conservation of what remained available. the forces of nature had been harnessed to human use. industrial development had reached large proportions, and organization and division of labor in our economic order had gone so far that anyone who would could no longer go forth freely and do anything which a restless imagination and daring ambition suggested to him as a means of gain. although lawyers went on repeating the old formula, the law began to move in another direction. the freedom of the owner of property to do upon it whatever he liked, so he did not overstep his limits or endanger the public health or safety, began to be restricted. nay, the law began to make men act affirmatively upon their property in fashions which it dictated, where the general health was endangered by non-action. the power to make contracts began to be limited where industrial conditions made abstract freedom of contract defeat rather than advance full individual human life. the power of the owner to dispose freely of his property began to be limited in order to safeguard the security of the social institutions of marriage and the family. freedom of appropriating _res nullius_ and of using _res communes_ came to be abridged in order to conserve the natural resources of society. freedom of engaging in lawful callings came to be restricted, and an elaborate process of education and examination to be imposed upon those who would engage in them, lest there be injury to the public health, safety or morals. a regime in which anyone might freely set up a corporation to engage in a public service, or freely compete in such service, was superseded by one of legal exemption of existing public utilities from destructive competition. in a crowded world, whose resources had been exploited, a system of promoting the maximum of individual self-assertion had come to produce more friction than it relieved and to further rather than to eliminate waste. at the end of the last and the beginning of the present century, a new way of thinking grew up. jurists began to think in terms of human wants or desires rather than of human wills. they began to think that what they had to do was not simply to equalize or harmonize wills, but, if not to equalize, at least to harmonize the satisfaction of wants. they began to weigh or balance and reconcile claims or wants or desires, as formerly they had balanced or reconciled wills. they began to think of the end of law not as a maximum of self-assertion, but as a maximum satisfaction of wants. hence for a time they thought of the problem of ethics, of jurisprudence, and of politics as chiefly one of valuing; as a problem of finding criteria of the relative value of interests. in jurisprudence and politics they saw that we must add practical problems of the possibility of making interests effective through governmental action, judicial or administrative. but the first question was one of the wants to be recognized--of the interests to be recognized and secured. having inventoried the wants or claims or interests which are asserting and for which legal security is sought, we were to value them, select those to be recognized, determine the limits within which they were to be given effect in view of other recognized interests, and ascertain how far we might give them effect by law in view of the inherent limitations upon effective legal action. this mode of thinking may be seen, concealed under different terminologies, in more than one type of jurist in the last three decades. three elements contributed to shift the basis of theories as to the end of law from wills to wants, from a reconciling or harmonizing of wills to a reconciling or harmonizing of wants. the most important part was played by psychology which undermined the foundation of the metaphysical will-philosophy of law. through the movement for unification of the social sciences, economics also played an important part, especially indirectly through the attempts at economic interpretation of legal history, reinforcing psychology by showing the extent to which law had been shaped by the pressure of economic wants. also the differentiation of society, involved in industrial organization, was no mean factor, when classes came to exist in which claims to a minimum human existence, under the standards of the given civilization, became more pressing than claims to self-assertion. attention was turned from the nature of law to its purpose, and a functional attitude, a tendency to measure legal rules and doctrines and institutions by the extent to which they further or achieve the ends for which law exists, began to replace the older method of judging law by criteria drawn from itself. in this respect the thought of the present is more like that of the seventeenth and eighteenth centuries than that of the nineteenth century. french writers have described this phenomenon as a "revival of juridical idealism." but in truth the social utilitarianism of today and the natural-law philosophy of the seventeenth and eighteenth centuries have only this in common: each has its attention fixed upon phenomena of growth; each seeks to direct and further conscious improvement of the law. in its earlier form social-utilitarianism, in common with all nineteenth-century philosophies of law, was too absolute. its teleological theory was to show us what actually and necessarily took place in lawmaking rather than what we were seeking to bring about. its service to the philosophy of law was in compelling us to give over the ambiguous term "right" and to distinguish between the claims or wants or demands, existing independently of law, the legally recognized or delimited claims or wants or demands, and the legal institutions, which broadly go by the name of legal rights, whereby the claims when recognized and delimited are secured. also it first made clear how much the task of the lawmaker is one of compromise. to the law-of-nature school, lawmaking was but an absolute development of absolute principles. a complete logical development of the content implicit in each natural right would give a body of law adequate to every time and place. it is true an idea of compromise did lurk behind the theory of the metaphysical jurists in the nineteenth century. but they sought an absolute harmonizing rather than a working compromise for the time and place. conflicting individual wills were to be reconciled absolutely by a formula which had ultimate and universal authority. when we think of law as existing to secure social interests, so far as they may be secured through an ordering of men and of human relations through the machinery of organized political society, it becomes apparent that we may reach a practicable system of compromises of conflicting human desires here and now, by means of a mental picture of giving effect to as much as we can, without believing that we have a perfect solution for all time and for every place. as the neo-kantians put it, we may formulate the social ideal of the time and place and try juristic problems thereby without believing ourselves competent to lay out a social and political and legal chart for all time. as the neo-hegelians put it, we may discover and formulate the jural postulates of the civilization of the time and place without assuming that those postulates are a complete and final picture of ultimate law, by which it must be measured for all time. social utilitarianism has stood in need of correction both from psychology and from sociology. it must be recognized that lawmaking and adjudication are not in fact determined precisely by a weighing of interests. in practice the pressure of wants, demands, desires, will warp the actual compromises made by the legal system this way or that. in order to maintain the general security we endeavor in every way to minimize this warping. but one needs only to look below the surface of the law anywhere at any time to see it going on, even if covered up by mechanical devices to make the process appear an absolute one and the result a predetermined one. we may not expect that the compromises made and enforced by the legal order will always and infallibly give effect to any picture we may make of the nature or ends of the process of making and enforcing them. yet there will be less of this subconscious warping if we have a clear picture before us of what we are seeking to do and to what end, and if we build in the image thereof so far as we consciously build and shape the law. difficulties arise chiefly in connection with criteria of value. if we say that interests are to be catalogued or inventoried, that they are then to be valued, that those which are found to be of requisite value are to be recognized legally and given effect within limits determined by the valuation, so far as inherent difficulties in effective legal securing of interests will permit, the question arises at once, how shall we do this work of valuing? philosophers have devoted much ingenuity to the discovery of some method of getting at the intrinsic importance of various interests, so that an absolute formula may be reached in accordance wherewith it may be assured that the weightier interests intrinsically shall prevail. but i am skeptical as to the possibility of an absolute judgment. we are confronted at this point by a fundamental question of social and political philosophy. i do not believe the jurist has to do more than recognize the problem and perceive that it is presented to him as one of securing all social interests so far as he may, of maintaining a balance or harmony among them that is compatible with the securing of all of them. the last century preferred the general security. the present century has shown many signs of preferring the individual moral and social life. i doubt whether such preferences can maintain themselves. social utilitarians would say, weigh the several interests in terms of the end of law. but have we any given to us absolutely? is the end of law anything less than to do whatever may be achieved thereby to satisfy human desires? are the limits any other than those imposed by the tools with which we work, whereby we may lose more than we gain, if we attempt to apply them in certain situations? if so, there is always a possibility of improved tools. the greek philosopher who said that the only possible subjects of lawsuit were "insult, injury and homicide," was as dogmatic as herbert spencer, who conceived of sanitary laws and housing laws in our large cities as quite outside the domain of the legal order. better legal machinery extends the field of legal effectiveness as better machinery has extended the field of industrial effectiveness. i do not mean that the law should interfere as of course in every human relation and in every situation where some one chances to think a social want may be satisfied thereby. experience has shown abundantly how futile legal machinery may be in its attempts to secure certain kinds of interests. what i do say is, that if in any field of human conduct or in any human relation the law, with such machinery as it has, may satisfy a social want without a disproportionate sacrifice of other claims, there is no eternal limitation inherent in the nature of things, there are no bounds imposed at creation, to stand in the way of its doing so. let us apply some of the other theories which are now current. the neo-hegelians say: try the claims in terms of civilization, in terms of the development of human powers to the most of which they are capable--the most complete human mastery of nature, both human nature and external nature. the neo-kantians say: try them in terms of a community of free-willing men as the social ideal. duguit says: try them in terms of social interdependence and social function. do they promote or do they impede social interdependence through similarity of interest and division of labor? in these formulas do we really get away from the problem of a balance compatible with maintaining all the interests, with responding to all the wants and claims, which are involved in civilized social existence? for the purpose of understanding the law of today i am content with a picture of satisfying as much of the whole body of human wants as we may with the least sacrifice. i am content to think of law as a social institution to satisfy social wants--the claims and demands involved in the existence of civilized society--by giving effect to as much as we may with the least sacrifice, so far as such wants may be satisfied or such claims given effect by an ordering of human conduct through politically organized society. for present purposes i am content to see in legal history the record of a continually wider recognizing and satisfying of human wants or claims or desires through social control; a more embracing and more effective securing of social interests; a continually more complete and effective elimination of waste and precluding of friction in human enjoyment of the goods of existence--in short, a continually more efficacious social engineering. iii the application of law three steps are involved in the adjudication of a controversy according to law: ( ) finding the law, ascertaining which of the many rules in the legal system is to be applied, or, if none is applicable, reaching a rule for the cause (which may or may not stand as a rule for subsequent cases) on the basis of given materials in some way which the legal system points out; ( ) interpreting the rule so chosen or ascertained, that is, determining its meaning as it was framed and with respect to its intended scope; ( ) applying to the cause in hand the rule so found and interpreted. in the past these have been confused under the name of interpretation. it was assumed that the function of the judge consisted simply in interpreting an authoritatively given rule of wholly extra-judicial origin by an exact process of deducing its logically implied content and in mechanically applying the rule so given and interpreted. this assumption has its origin in the stage of the strict law in the attempt to escape from the overdetail on the one hand, and the vague sententiousness on the other hand, which are characteristic of primitive law. for the most part primitive law is made up of simple, precise, detailed rules for definite narrowly defined situations. it has no general principles. the first step toward a science of law is the making of distinctions between what comes within and what does not come within the legal meaning of a rule. but a body of primitive law also often contains a certain number of sententious legal proverbs, put in striking form so as to stick in the memory, but vague in their content. the strict law by means of a conception of results obtained inevitably from fixed rules and undeviating remedial proceedings seeks relief from the uncertainty inherent in the finding of a larger content for overdetailed special rules through differentiation of cases and the application of legal proverbial sayings through the "equity of the tribunal." it conceives of application of law as involving nothing but a mechanical fitting of the case with the strait-jacket of rule or remedy. the inevitable adjustments and extendings and limitations, which an attempt to administer justice in this way must involve, are covered up by a fiction of interpretation in order to maintain the general security. philosophical rationalizing of the attempt to avoid the overpersonal administration of justice incident to the partial reversion to justice without law in the stage of equity and natural law, reinforced the assumption that judicial application of law was a mechanical process and was but a phase of interpretation. in the eighteenth century it was given scientific form in the theory of separation of powers. the legislative organ made laws. the executive administered them. the judiciary applied them to the decision of controversies. it was admitted in anglo-american legal thinking that courts must interpret in order to apply. but the interpretation was taken not to be in any wise a lawmaking and the application was taken not to involve any administrative element and to be wholly mechanical. on the continent interpretation so as to make a binding rule for future cases was deemed to belong only to the legislator. the maturity of law was not willing to admit that judge or jurist could make anything. it was not the least service of the analytical jurisprudence of the last century to show that the greater part of what goes by the name of interpretation in this way of thinking is really a lawmaking process, a supplying of new law where no rule or no sufficient rule is at hand. "the fact is," says gray most truly, "that the difficulties of so-called interpretation arise when the legislature has had no meaning at all; when the question which is raised on the statute never occurred to it; when what the judges have to do is, not to determine what the legislature did mean on a point which was present to its mind, but to guess what it would have intended on a point not present to its mind had the point been present." the attempt to maintain the separation of powers by constitutional prohibitions has pointed to the same lesson from another side. lawmaking, administration and adjudication cannot be rigidly fenced off one from the other and turned over each to a separate agency as its exclusive field. there is rather a division of labor as to typical cases and a practical or historical apportionment of the rest. finding the law may consist merely in laying hold of a prescribed text of a code or statute. in that event the tribunal must proceed to determine the meaning of the rule and to apply it. but many cases are not so simple. more than one text is at hand which might apply; more than one rule is potentially applicable, and the parties are contending which shall be made the basis of a decision. in that event the several rules must be interpreted in order that intelligent selection may be made. often the genuine interpretation of the existing rules shows that none is adequate to cover the case and that what is in effect, if not in theory, a new one must be supplied. attempts to foreclose this process by minute, detailed legislation have failed signally, as, for example, in the overgrown code of civil procedure in new york. providing of a rule by which to decide the cause is a necessary element in the determination of a large proportion of the causes that come before our higher tribunals, and it is often because a rule must be provided that the parties are not content to abide the decision of the court of first instance. cases calling for genuine interpretation are relatively few and simple. moreover genuine interpretation and lawmaking under the guise of interpretation run into one another. in other words, the judicial function and the legislative function run into one another. it is the function of the legislative organ to make laws. but from the nature of the case it cannot make laws so complete and all-embracing that the judicial organ will not be obliged to exercise a certain lawmaking function also. the latter will rightly consider this a subordinate function. it will take it to be one of supplementing, developing and shaping given materials by means of a given technique. none the less it is a necessary part of judicial power. pushed to the extreme that regards all judicial lawmaking as unconstitutional usurpation, our political theory, a philosophical classification made over by imperfect generalization from the british constitution as it was in the seventeenth century, has served merely to intrench in the professional mind the dogma of the historical school, that legislative lawmaking is a subordinate function and exists only to supplement the traditional element of the legal system here and there and to set the judicial or juristic tradition now and then in the right path as to some particular item where it had gone astray. in anglo-american law we do not think of analogical development of the traditional materials of the legal system as interpretation. in roman-law countries, where the law is made up of codes supplemented and explained by the codified roman law of justinian and modern usage on the basis thereof, which stands as the common law, it seems clear enough that analogical application whether of a section of the code or of a text of the roman law is essentially the same process. both are called interpretation. as our common law is not in the form of authoritative texts, the nature of the process that goes on when a leading case is applied by analogy, or limited in its application, or distinguished, is concealed. it does not seem on the surface to be the same process as when a text of the digest is so applied or limited or distinguished. hence it has been easy for us to assume that courts did no more than genuinely interpret legislative texts and deduce the logical content of authoritatively established traditional principles. it has been easy to accept a political theory, proceeding on the dogma of separation of powers, and to lay down that courts only interpret and apply, that all making of law must come from the legislature, that courts must "take the law as they find it," as if they could always find it ready-made for every case. it has been easy also to accept a juristic theory that law cannot be made; that it may only be found, and that the process of finding it is a matter purely of observation and logic, involving no creative element. if we really believed this pious fiction, it would argue little faith in the logical powers of the bench in view of the diversity of judicially asserted doctrines on the same point which so frequently exist in our case law and the widely different opinions of our best judges with respect to them. as interpretation is difficult, when it is difficult, just because the legislature had no actual intent to ascertain, so the finding of the common law on a new point is difficult because there is no rule of law to find. the judicial and the legislative functions run together also in judicial ascertainment of the common law by analogical application of decided cases. as interpretation on the one side runs into lawmaking and so the judicial function runs into the legislative function, on the other side interpretation runs into application and so the judicial function runs into the administrative or executive. typically judicial treatment of a controversy is a measuring of it by a rule in order to reach a universal solution for a class of causes of which the cause in hand is but an example. typically administrative treatment of a situation is a disposition of it as a unique occurrence, an individualization whereby effect is given to its special rather than to its general features. but administration cannot ignore the universal aspects of situations without endangering the general security. nor may judicial decision ignore their special aspects and exclude all individualization in application without sacrificing the social interest in the individual life through making justice too wooden and mechanical. the idea that there is no administrative element in the judicial decision of causes and that judicial application of law should be a purely mechanical process goes back to aristotle's politics. writing before a strict law had developed, in what may be called the highest point of development of primitive law, when the personal character and feelings for the time being of kings or magistrates or dicasts played so large a part in the actual workings of legal justice, aristotle sought relief through a distinction between the administrative and the judicial. he conceived that discretion was an administrative attribute. in administration regard was to be had to times and men and special circumstances. the executive was to use a wise discretion in adjusting the machinery of government to actual situations as they arose. on the other hand, he conceived that a court should have no discretion. to him the judicial office was a procrustean one of fitting each case to the legal bed, if necessary by a surgical operation. such a conception met the needs of the strict law. in a stage of legal maturity it was suited to the byzantine theory of law as the will of the emperor and of the judge as the emperor's delegate to apply and give effect to that will. in the middle ages it had a sufficient basis in authority and in the needs of a period of strict law. later it fitted well into the byzantine theory of lawmaking which french publicists adopted and made current in the seventeenth and eighteenth centuries. in the united states it seemed to be required by our constitutional provisions for a separation of powers. but in practice it has broken down no less completely than the analogous idea of entire separation of the judicial from the lawmaking function. almost all of the problems of jurisprudence come down to a fundamental one of rule and discretion, of administration of justice by law and administration of justice by the more or less trained intuition of experienced magistrates. controversies as to the nature of law, whether the traditional element or the imperative element of legal systems is the typical law, controversies as to the nature of lawmaking, whether the law is found by judicial empiricism or made by conscious legislation, and controversies as to the bases of law's authority, whether in reason and science on the one hand or in command and sovereign will on the other hand, get their significance from their bearing upon this question. controversies as to the relation of law and morals, as to the distinction of law and equity, as to the province of the court and of the jury, as to fixed rule or wide judicial power in procedure, and as to judicial sentence and administrative individualization in punitive justice are but forms of this fundamental problem. this is not the place to discuss that problem. suffice it to say that both are necessary elements in the administration of justice and that instead of eliminating either, we must partition the field between them. but it has been assumed that one or the other must govern exclusively, and there has been a continual movement in legal history back and forth between wide discretion and strict detailed rule, between justice without law, as it were, and justice according to law. the power of the magistrate has been a liberalizing agency in periods of growth. in the stage of equity and natural law, a stage of infusion of moral ideas from without into the law, the power of the magistrate to give legal force to his purely moral ideas was a chief instrument. today we rely largely upon administrative boards and commissions to give legal force to ideas which the law ignores. on the other hand rule and form with no margin of application have been the main reliance of periods of stability. the strict law sought to leave nothing to the judge beyond seeing whether the letter had been complied with. the nineteenth century abhorred judicial discretion and sought to exclude the administrative element from the domain of judicial justice. yet a certain field of justice without law always remained and by one device or another the balance of the supposedly excluded administrative element was preserved. in the strict law individualization was to be excluded by hard and fast mechanical procedure. in practice this procedure was corrected and the balance between rule and discretion, between the legal and the administrative, was restored by fictions and by an executive dispensing power. roman equity has its origin in the _imperium_ of the _praetor_--his royal power to dispense with the strict law in particular situations. also english equity has its origin in the royal power of discretionary application of law and dispensing with law in particular cases, misuse of which as a political institution was one of the causes of the downfall of the stuarts. thus we get a third agency for restoring the balance in the form of systematic interposition of praetor or chancellor on equitable grounds, leading to a system of equity. carried too far in the stage of equity and natural law, overdevelopment of the administrative element brings about a reaction and in the maturity of law individualization is pushed to the wall once more. yet this elimination of the administrative takes place more in theory and in appearance than in reality. for justice comes to be administered in large measure through the application of legal standards which admit of a wide margin for the facts of particular cases, and the application of these standards is committed to laymen or to the discretion of the tribunal. moreover a certain judicial individualization goes on. partly this takes the form of a margin of discretionary application of equitable remedies, handed down from the stage of equity and natural law. partly it takes the form of ascertainment of the facts with reference to the legal result desired in view of the legal rule or of choice between competing rules in effect covering the same ground, although nominally for distinct situations. in other words, a more subtle fiction does for the maturity of law what is done for the strict law by its relatively crude procedural fictions. of these five agencies for preserving the administrative element in judicial justice, in periods when legal theory excludes it, two call for special consideration. it is usual to describe law as an aggregate of rules. but unless the word rule is used in so wide a sense as to be misleading, such a definition, framed with reference to codes or by jurists whose eyes were fixed upon the law of property, gives an inadequate picture of the manifold components of a modern legal system. rules, that is, definite, detailed provisions for definite, detailed states of fact, are the main reliance of the beginnings of law. in the maturity of law they are employed chiefly in situations where there is exceptional need of certainty in order to uphold the economic order. with the advent of legal writing and juristic theory in the transition from the strict law to equity and natural law, a second element develops and becomes a controlling factor in the administration of justice. in place of detailed rules precisely determining what shall take place upon a precisely detailed state of facts, reliance is had upon general premises for judicial and juristic reasoning. these legal principles, as we call them, are made use of to supply new rules, to interpret old ones, to meet new situations, to measure the scope and application of rules and standards and to reconcile them when they conflict or overlap. later, when juristic study seeks to put the materials of the law in order, a third element develops, which may be called legal conceptions. these are more or less exactly defined types, to which we refer cases or by which we classify them, so that when a state of facts is classified we may attribute thereto the legal consequences attaching to the type. all of these admit of mechanical or rigidly logical application. a fourth element, however, which plays a great part in the everyday administration of justice, is of quite another character. legal standards of conduct appear first in roman equity. in certain cases of transactions or relations involving good faith, the formula was made to read that the defendant was to be condemned to that which in good faith he ought to give or do for or render to the plaintiff. thus the judge had a margin of discretion to determine what good faith called for and in cicero's time the greatest lawyer of the day thought these _actiones bonae fidei_ required a strong judge because of the dangerous power which they allowed him. from this procedural device, roman lawyers worked out certain standards or measures of conduct, such as what an upright and diligent head of a family would do, or the way in which a prudent and diligent husbandman would use his land. in similar fashion english equity worked out a standard of fair conduct on the part of a fiduciary. later the anglo-american law of torts worked out, as a measure for those who are pursuing some affirmative course of conduct, the standard of what a reasonable, prudent man would do under the circumstances. also the law of public utilities worked out standards of reasonable service, reasonable facilities, reasonable incidents of the service and the like. in all these cases the rule is that the conduct of one who acts must come up to the requirements of the standard. yet the significant thing is not the fixed rule but the margin of discretion involved in the standard and its regard for the circumstances of the individual case. for three characteristics may be seen in legal standards: ( ) they all involve a certain moral judgment upon conduct. it is to be "fair," or "conscientious," or "reasonable," or "prudent," or "diligent." ( ) they do not call for exact legal knowledge exactly applied, but for common sense about common things or trained intuition about things outside of everyone's experience. ( ) they are not formulated absolutely and given an exact content, either by legislation or by judicial decision, but are relative to times and places and circumstances and are to be applied with reference to the facts of the case in hand. they recognize that within the bounds fixed each case is to a certain extent unique. in the reaction from equity and natural law, and particularly in the nineteenth century, these standards were distrusted. lord camden's saying that the discretion of a judge was "the law of tyrants," that it was different in different men, was "casual" and dependent upon temperament, has in it the whole spirit of the maturity of law. american state courts sought to turn the principles by which the chancellors were wont to exercise their discretion into hard and fast rules of jurisdiction. they sought to reduce the standard of reasonable care to a set of hard and fast rules. if one crossed a railroad, he must "stop, look and listen." it was negligence _per se_ to get on or off a moving car, to have part of the body protruding from a railroad car, and the like. also they sought to put the duties of public utilities in the form of definite rules with a detailed, authoritatively fixed content. all these attempts to do away with the margin of application involved in legal standards broke down. the chief result was a reaction in the course of which many states turned over all questions of negligence to juries, free even from effective advice from the bench, while many other jurisdictions have been turning over subject after subject to administrative boards and commissions to be dealt with for a season without law. in any event, whether the standard of due care in an action for negligence is applying by a jury, or the standard of reasonable facilities for transportation is applying by a public service commission, the process is one of judging of the quality of a bit of conduct under its special circumstances and with reference to ideas of fairness entertained by the layman or the ideas of what is reasonable entertained by the more or less expert commissioner. common sense, experience and intuition are relied upon, not technical rule and scrupulously mechanical application. we are familiar with judicial individualization in the administration of equitable remedies. another form, namely, individualization through latitude of application under the guise of choice or ascertainment of a rule, is concealed by the fiction of the logical completeness of the legal system and the mechanical, logical infallibility of the logical process whereby the predetermined rules implicit in the given legal materials are deduced and applied. to a large and apparently growing extent the practice of our application of law has been that jurors or courts, as the case may be, take the rules of law as a general guide, determine what the equities of the cause demand, and contrive to find a verdict or render a judgment accordingly, wrenching the law no more than is necessary. many courts today are suspected of ascertaining what the equities of a controversy require, and then raking up adjudicated cases to justify the result desired. often formulas are conveniently elastic so that they may or may not apply. often rules of contrary tenor overlap, leaving a convenient no-man's-land wherein cases may be decided either way according to which rule the court chooses in order to reach a result arrived at on other grounds. occasionally a judge is found who acknowledges frankly that he looks chiefly at the ethical situation between the parties and does not allow the law to interfere therewith beyond what is inevitable. thus we have in fact a crude equitable application, a crude individualization, throughout the field of judicial administration of justice. it is assumed by courts more widely than we suspect, or at least, more widely than we like to acknowledge. ostensibly there is no such power. but when one looks beneath the surface of the law reports, the process reveals itself under the name of "implication" or in the guise of two lines of decisions of the same tribunal upon the same point from which it may choose at will, or in the form of what have been termed "soft spots" in the law--spots where the lines are so drawn by the adjudicated cases that the court may go either way as the ethical exigencies of the special circumstances of the case in hand may require, with no apparent transgression of what purport to be hard and fast rules. such has been the result of attempts to exclude the administrative element in adjudication. in theory there is no such thing except with respect to equitable remedies, where it exists for historical reasons. in practice there is a great deal of it, and that in a form which is unhappily destructive of certainty and uniformity. necessary as it is, the method by which we attain a needed individualization is injurious to respect for law. if the courts do not respect the law, who will? there is no exclusive cause of the current american attitude toward the law. but judicial evasion and warping of the law, in order to secure in practice a freedom of judicial action not conceded in theory, is certainly one cause. we need a theory which recognizes the administrative element as a legitimate part of the judicial function and insists that individualization in the application of legal precepts is no less important than the contents of those precepts themselves. three theories of application of law obtain in the legal science of today. the theory which has the largest following among practitioners and in dogmatic exposition of the law is analytical. it assumes a complete body of law with no gaps and no antinomies, given authority by the state at one stroke and so to be treated as if every item was of the same date as every other. if the law is in the form of a code, its adherents apply the canons of genuine interpretation and ask what the several code provisions mean as they stand, looked at logically rather than historically. they endeavor to find the pre-appointed code pigeonhole for each concrete case, to put the case in hand into it by a purely logical process and to formulate the result in a judgment. if the law is in the form of a body of reported decisions, they assume that those decisions may be treated as if all rendered at the same time and as containing implicitly whatever is necessary to the decision of future causes which they do not express. they may define conceptions or they may declare principles. the logically predetermined decision is contained in the conception to which the facts are referred or involved in the principle within whose scope the facts fall. a purely logical process, exactly analogous to genuine interpretation of a legislative rule, will yield the appropriate conception from given premises or discover the appropriate principle from among those which superficially appear to apply. application is merely formulation in a judgment of the result obtained by analysis of the case and logical development of the premises contained in the reported decisions. among teachers a historical theory has the larger following. if the law is in the form of a code, the code provisions are assumed to be in the main declaratory of the law as it previously existed; the code is regarded as a continuation and development of pre-existing law. all exposition of the code and of any provision thereof must begin by an elaborate inquiry into the pre-existing law and the history and development of the competing juristic theories among which the framers of the code had to choose. if the law is in the form of a body of reported decisions, the later decisions are regarded as but declaring and illustrating the principles to be found by historical study of the older ones; as developing legal conceptions and principles to be found by historical study of the older law. hence all exposition must begin with an elaborate historical inquiry in which the idea that has been unfolding in the course of judicial decision is revealed and the lines are disclosed along which legal development must move. but when the content of the applicable legal precept is discovered in these ways, the method of applying it in no way differs from that which obtains under the analytical theory. the process of application is assumed to be a purely logical one. do the facts come within or fail to come within the legal precept? this is the sole question for the judge. when by historical investigation he has found out what the rule is, he has only to fit it to just and unjust alike. analytical and historical theories of application of law thus seek to exclude the administrative element wholly and their adherents resort to fictions to cover up the judicial individualization which none the less obtains in practice or else ignore it, saying that it is but a result of the imperfect constitution of tribunals or of the ignorance or sloth of those who sit therein. the latter explanation is no more satisfying than the fictions, and a new theory has sprung up of late in continental europe which may be understood best by calling it the equitable theory, since the methods of the english chancellor had much to do with suggesting it. to the adherents of this theory the essential thing is a reasonable and just solution of the individual controversy. they conceive of the legal precept, whether legislative or traditional, as a guide to the judge, leading him toward the just result. but they insist that within wide limits he should be free to deal with the individual case so as to meet the demands of justice between the parties and accord with the reason and moral sense of ordinary men. they insist that application of law is not a purely mechanical process. they contend that it involves not logic only but moral judgments as to particular situations and courses of conduct in view of the special circumstances which are never exactly alike. they insist that such judgments involve intuitions based upon experience and are not to be expressed in definitely formulated rules. they argue that the cause is not to be fitted to the rule but the rule to the cause. much that has been written by advocates of the equitable theory of application of law is extravagant. as usually happens, in reaction from theories going too far in one direction this theory has gone too far in the other. the last century would have eliminated individualization of application. now, as in the sixteenth- and seventeenth-century reaction from the strict law, come those who would have nothing else; who would turn over the whole field of judicial justice to administrative methods. if we must choose, if judicial administration of justice must of necessity be wholly mechanical or else wholly administrative, it was a sound instinct of lawyers in the maturity of law that led them to prefer the former. only a saint, such as louis ix under the oak at vincennes, may be trusted with the wide powers of a judge restrained only by a desire for just results in each case to be reached by taking the law for a general guide. and st. louis did not have the crowded calendars that confront the modern judge. but are we required to choose? may we not learn something from the futility of all efforts to administer justice exclusively by either method? may we not find the proper field of each by examining the means through which in fact we achieve an individualization which we deny in theory, and considering the cases in which those means operate most persistently and the actual administration of justice most obstinately refuses to become as mechanical in practice as we expect it to be in theory? in anglo-american law today there are no less than seven agencies for individualizing the application of law. we achieve an individualization in practice: ( ) through the discretion of courts in the application of equitable remedies; ( ) through legal standards applied to conduct generally when injury results and also to certain relations and callings; ( ) through the power of juries to render general verdicts; ( ) through latitude of judicial application involved in finding the law; ( ) through devices for adjusting penal treatment to the individual offender; ( ) through informal methods of judicial administration in petty courts, and ( ) through administrative tribunals. the second and fourth have been considered. let us look for a moment at the others. discretion in the exercise of equitable remedies is an outgrowth of the purely personal intervention in extraordinary cases on grounds that appealed to the conscience of the chancellor in which equity jurisdiction has its origin. something of the original flavor of equitable interposition remains in the doctrine of personal bar to relief, and in the ethical quality of some of the maxims which announce policies to be pursued in the exercise of the chancellor's powers. but it was possible for the nineteenth century to reconcile what remained of the chancellor's discretion with its mode of thinking. where the plaintiff's right was legal but the legal remedy was not adequate to secure him in what the legal right entitled him to claim, equity gave a concurrent remedy supplementing the strict law. as the remedy in equity was supplementary and concurrent, in case the chancellor in his discretion kept his hands off, as he would if he felt that he could not bring about an equitable result, the law would still operate. the plaintiff's right was in no wise at the mercy of anyone's discretion. he merely lost an extraordinary and supplementary remedy and was left to the ordinary course of the law. such was the orthodox view of the relation of law and equity. equity did not alter a jot or tittle of the law. it was a remedial system alongside of the law, taking the law for granted and giving legal rights greater efficacy in certain situations. but take the case of a "hard bargain," where the chancellor in his discretion may deny specific performance. in england and in several states the damages at law do not include the value of the bargain where the contract is for the sale of land. hence unless specific performance is granted, the plaintiff's legal right is defeated. it is notorious that bargains appeal differently to different chancellors in this respect. in the hands of some the doctrine as to hard bargains has a tendency to become wooden, as it were. there is a hard and fast rule that certain bargains are "hard" and that equity will not enforce them. in states where the value of the bargain may be recovered at law, it may well be sometimes that the bargain might as well be enforced in equity, if it is not to be cancelled. but the chancellor is not unlikely to wash his hands of a hard case, saying that the court of law is more callous; let that court act, although that court is the same judge with another docket before him. in other hands, the doctrine tends to become ultro-ethical and to impair the security of transactions. in other words, the margin of discretion in application of equitable remedies tends on the one hand to disappear through crystallization of the principles governing its exercise into rigid rules, or on the other hand, to become overpersonal and uncertain and capricious. yet as one reads the reports attentively he cannot doubt that in action it is an important engine of justice; that it is a needed safety valve in the working of our legal system. at common law the chief reliance for individualizing the application of law is the power of juries to render general verdicts, the power to find the facts in such a way as to compel a different result from that which the legal rule strictly applied would require. in appearance there has been no individualization. the judgment follows necessarily and mechanically from the facts upon the record. but the facts found were found in order to reach the result and are by no means necessarily the facts of the actual case. probably this power alone made the common law of master and servant tolerable in the last generation. yet exercise of this power, with respect to which, as lord coke expressed it, "the jurors are chancellors," has made the jury an unsatisfactory tribunal in many classes of cases. it is largely responsible for the practice of repeated new trials which makes the jury a most expensive tribunal. the crude individualization achieved by juries, influenced by emotional appeals, prejudice and the peculiar personal ideas of individual jurors, involves quite as much injustice at one extreme as mechanical application of law by judges at the other extreme. indeed the unchecked discretion of juries, which legislation has brought about in some jurisdictions, is worse than the hobbled court and rigid mechanical application of law from which it is a reaction. our administration of punitive justice is full of devices for individualizing the application of criminal law. our complicated machinery of prosecution involves a great series of mitigating agencies whereby individual offenders may be spared or dealt with leniently. beginning at the bottom there is the discretion of the police as to who and what shall be brought to the judicial mill. next are the wide powers of our prosecuting officers who may ignore offences or offenders, may dismiss proceedings in their earlier stages, may present them to grand juries in such a way that no indictment results, or may enter a _nolle prosequi_ after indictment. even if the public prosecutor desires to prosecute, the grand jury may ignore the charge. if the cause comes to trial, the petit jury may exercise a dispensing power by means of a general verdict. next comes judicial discretion as to sentence, or in some jurisdictions, assessment of punishment by the discretion of the trial jury. upon these are superposed administrative parole or probation and executive power to pardon. the lawyer-politician who practices in the criminal courts knows well how to work upon this complicated machinery so as to enable the professional criminal to escape as well as those or even instead of those for whom these devices were intended. they have been developed to obviate the unhappy results of a theory which would have made the punishment mechanically fit the crime instead of adjusting the penal treatment to the criminal. here, as elsewhere, the attempt to exclude the administrative element has brought about back-handed means of individualization which go beyond the needs of the situation and defeat the purposes of the law. even more striking is the recrudescence of personal government, by way of reaction from an extreme of government of laws and not of men, which is involved in the setting up of administrative tribunals on every hand and for every purpose. the regulation of public utilities, apportionment of the use of the water of running streams among different appropriators, workmen's compensation, the actual duration and nature of punishment for crime, admission to and practice of professions and even of trades, the power to enter or to remain in the country, banking, insurance, unfair competition and restraint of trade, the enforcement of factory laws, of pure food laws, of housing laws and of laws as to protection from fire and the relation of principal and agent, as between farmers and commission merchants, are but some of the subjects which the living law, the law in action, is leaving to executive justice in administrative tribunals. to some extent this is required by the increasing complexity of the social order and the minute division of labor which it involves. yet this complexity and this division of labor developed for generations in which the common-law jealousy of administration was dominant. chiefly our revival of executive justice in the present century is one of those reversions to justice without law which are perennial in legal history. as in the case of like reversions in the past it is the forerunner of growth. it is the first form of reaction from the overrigid application of law in a period of stability. a bad adjustment between law and administration and cumbrous, ineffective and unbusinesslike legal procedure, involving waste of time and money in the mere etiquette of justice, are doing in our time what like conditions did in english law in the middle of the sixteenth century. if we look back at the means of individualizing the application of law which have developed in our legal system, it will be seen that almost without exception they have to do with cases involving the moral quality of individual conduct or of the conduct of enterprises, as distinguished from matters of property and of commercial law. equity uses its powers of individualizing to the best advantage in connection with the conduct of those in whom trust and confidence have been reposed. legal standards are used chiefly in the law of torts, in the law of public utilities and in the law as to fiduciary relations. jury lawlessness is an agency of justice chiefly in connection with the moral quality of conduct where the special circumstances exclude that "intelligence without passion" which, according to aristotle, characterizes the law. it is significant that in england today the civil jury is substantially confined to cases of defamation, malicious prosecution, assault and battery and breach of promise of marriage. judicial individualization through choice of a rule is most noticeable in the law of torts, in the law of domestic relations and in passing upon the conduct of enterprises. the elaborate system of individualization in criminal procedure has to do wholly with individual human conduct. the informal methods of petty courts are meant for tribunals which pass upon conduct in the crowd and hurry of our large cities. the administrative tribunals, which are setting up on every hand, are most called for and prove most effective as means of regulating the conduct of enterprises. a like conclusion is suggested when we look into the related controversy as to the respective provinces of common law and of legislation. inheritance and succession, definition of interests in property and the conveyance thereof, matters of commercial law and the creation, incidents and transfer of obligations have proved a fruitful field for legislation. in these cases the social interest in the general security is the controlling element. but where the questions are not of interests of substance but of the weighing of human conduct and passing upon its moral aspects, legislation has accomplished little. no codification of the law of torts has done more than provide a few significantly broad generalizations. on the other hand, succession to property is everywhere a matter of statute law and commercial law is codified or codifying throughout the world. moreover the common law insists upon its doctrine of _stare decisis_ chiefly in the two cases of property and commercial law. where legislation is effective, there also mechanical application is effective and desirable. where legislation is ineffective, the same difficulties that prevent its satisfactory operation require us to leave a wide margin of discretion in application, as in the standard of the reasonable man in our law of negligence and the standard of the upright and diligent head of a family applied by the roman law, and especially by the modern roman law, to so many questions of fault, where the question is really one of good faith. all attempts to cut down this margin have proved futile. may we not conclude that in the part of the law which has to do immediately with conduct complete justice is not to be attained by the mechanical application of fixed rules? is it not clear that in this part of the administration of justice the trained intuition and disciplined judgment of the judge must be our assurance that causes will be decided on principles of reason and not according to the chance dictates of caprice, and that a due balance will be maintained between the general security and the individual human life? philosophically the apportionment of the field between rule and discretion which is suggested by the use of rules and of standards respectively in modern law has its basis in the respective fields of intelligence and intuition. bergson tells us that the former is more adapted to the inorganic, the latter more to life. likewise rules, where we proceed mechanically, are more adapted to property and to business transactions, and standards; where we proceed upon intuitions, are more adapted to human conduct and to the conduct of enterprises. according to him, intelligence is characterized by "its power of grasping the general element in a situation and relating it to past situations," and this power involves loss of "that perfect mastery of a special situation in which instinct rules." in the law of property and in the law of commercial transactions it is precisely this general element and its relation to past situations that is decisive. the rule, mechanically applied, works by repetition and precludes individuality in results, which would threaten the security of acquisitions and the security of transactions. on the other hand, in the handmade, as distinguished from the machine-made product, the specialized skill of the workman gives us something infinitely more subtle than can be expressed in rules. in law some situations call for the product of hands, not of machines, for they involve not repetition, where the general elements are significant, but unique events, in which the special circumstances are significant. every promissory note is like every other. every fee simple is like every other. every distribution of assets repeats the conditions that have recurred since the statute of distributions. but no two cases of negligence have been alike or ever will be alike. where the call is for individuality in the product of the legal mill, we resort to standards. and the sacrifice of certainty in so doing is more apparent than actual. for the certainty attained by mechanical application of fixed rules to human conduct has always been illusory. iv liability a systematist who would fit the living body of the law to his logical analytical scheme must proceed after the manner of procrustes. indeed, this is true of all science. in life phenomena are unique. the biologist of today sometimes doubts whether there are species and disclaims higher groups as more than conveniences of study. "dividing lines," said a great american naturalist, "do not occur in nature except as accidents." organization and system are logical constructions of the expounder rather than in the external world expounded. they are the means whereby we make our experience of that world intelligible and available. it is with no illusion, therefore, that i am leading you to a juristic _ultima thule_ that i essay a bit of systematic legal science on a philosophical basis. even if it never attains a final system in which the law shall stand fast forever, the continual juristic search for the more inclusive order, the continual juristic struggle for a simpler system that will better order and better reconcile the phenomena of the actual administration of justice, is no vain quest. attempts to understand and to expound legal phenomena lead to generalizations which profoundly affect those phenomena, and criticism of those generalizations, in the light of the phenomena they seek to explain and to which they give rise, enables us to replace them or modify them or supplement them and thus to keep the law a growing instrument for achieving expanding human desires. one of the stock questions of the science of law is the nature and system and philosophical basis of situations in which one may exact from another that he "give or do or furnish something" (to use the roman formula) for the advantage of the former. the classical roman lawyer, thinking in terms of natural law, spoke of a bond or relation of right and law between them whereby the one might justly and legally exact and the other was bound in justice and law to perform. in modern times, thinking, whether he knows it or not, in terms of natural rights and by derivation of legal rights, the analytical jurist speaks of rights _in personam_. the anglo-american lawyer, thinking in terms of procedure, speaks of contracts and torts, using the former term in a wide sense. if pressed, he may refer certain enforceable claims to exact and duties of answering to the exaction to a romanist category of quasi-contract, satisfied to say "quasi" because on analysis they do not comport with his theory of contract, and to say "contract" because procedurally they are enforced _ex contractu_. pressed further, he may be willing to add "quasi tort" for cases of common-law liability without fault and workmen's compensation--"quasi" because there is no fault, "tort" because procedurally the liability is given effect _ex delicto_. but cases of duties enforceable either _ex contractu_ or _ex delicto_ at the option of the pleader and cases where the most astute pleader is hard pushed to choose have driven us to seek something better. obligation, the roman term, meaning the relation of the parties to what the analytical jurists have called a right _in personam_ is an exotic in our law in that sense. moreover the relation is not the significant thing for systematic purposes, as is shown by civilian tendencies in the phrases "active obligation" and "passive obligation" to extend the term from the relation to the capacity or claim to exact and duty to answer to the exaction. the phrase "right _in personam_" and its co-phrase "right _in rem_" are so misleading in their implications, as any teacher soon learns, that we may leave them to the textbooks of analytical jurisprudence. in this lecture, i shall use the simple word "liability" for the situation whereby one may exact legally and the other is legally subjected to the exaction. using the word in that sense, i shall inquire into the philosophical basis of liability and the system of the law on that subject as related to that basis. yellowplush said of spelling that every gentleman was entitled to his own. we have no authoritative institutional book of anglo-american law, enacted by sovereign authority, and hence every teacher of law is entitled to his own terminology. so far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. the idea is put strikingly in the anglo-saxon legal proverb, "buy spear from side or bear it," that is, buy off the feud or fight it out. one who does an injury or stands between an injured person and his vengeance, by protecting a kinsman, a child or a domestic animal that has wrought an injury, must compound for the injury or bear the vengeance of the injured. as the social interest in peace and order--the general security in its lowest terms--comes to be secured more effectively by regulation and ultimate putting down of the feud as a remedy, payment of composition becomes a duty rather than a privilege, or in the case of injuries by persons or things in one's power a duty alternative to a duty of surrendering the offending child or animal. the next step is to measure the composition not in terms of the vengeance to be bought off but in terms of the injury. a final step is to put it in terms of reparation. these steps are taken haltingly and merge into one another, so that we may hear of a "penalty of reparation." but the result is to turn composition for vengeance into reparation for injury. thus recovery of a sum of money by way of penalty for a delict is the historical starting point of liability. one's neighbor whom one had injured or who had been injured by those whom one harbored was not the only personality that might desire vengeance in a primitive society. one might affront the gods, and by one's impiety in so doing might imperil the general security, since the angered gods were not unlikely to hit out indiscriminately and to cast pestilence or hurl lightning upon just and unjust alike in the community which harbored the impious wrongdoer. hence if, in making a promise, one called the gods to witness it was needful that politically organized society, taking over a field of social control exercised by the priesthood, give a legal remedy to the promisee lest he invoke the aid of the gods and jeopardize the general security. again in making a promise one might call the people or the neighborhood to witness and might affront them by calling them to witness in vain. here, too, the peace was threatened and politically organized society might give a remedy to the promisee, lest he invoke the help of his fellow citizens or his neighbors. a common case might be one where a composition was promised in this way for an injury not included in the detailed tariff of compositions that is the staple of ancient "codes." another common case was where one who held another's property for some temporary purpose promised to return it. such a case is lending; for before the days of coined money, the difference between lending a horse to go to the next town and lending ten sheep to enable the borrower to pay a composition is not perceptible. thus another starting point of liability is recovery of a thing certain, or what was originally the same, a sum certain, promised in such wise as to endanger the general security if the promise is not carried out. in roman law, the condiction, which is the type of actions _in personam_, and thus the starting point historically of rights _in personam_ and of theories of obligation, was at first a recovery of a thing certain or a sum certain due upon a promise of this sort. in juristic terms, the central idea of the beginnings of liability is duty to make composition for or otherwise avert wrath arising from the affronted dignity of some personality desirous of vengeance, whether an injured individual, a god or a politically organized society. greek law and roman law give the name of "insult" to legally cognizable injury to personality. insult to a neighbor by injury to him or to one of his household, insult to the gods by impious breach of the promise they had witnessed, insult to the people by wanton disregard of the undertaking solemnly made in their presence, threatened the peace and order of society and called for legal remedy. lawyers begin to generalize and to frame conscious theories in the later part of the stage of the strict law. at first these theories are analytical rather than philosophical. the attempt is to frame general formulas by which the rigid rules of the strict law may be reconciled where they overlap or conflict or may be distinguished in their application where such overlapping or conflict threatens. by this time, the crude beginnings of liability in a duty to compound for insult or affront to man or gods or people, lest they be moved to vengeance, has developed into liability to answer for injuries caused by oneself or done by those persons or those things in one's power, and liability for certain promises made in solemn form. thus the basis of liability has become twofold. it rests on the one hand upon duty to repair injury. it rests on the other hand upon duty to carry out formal undertakings. it is enough for this stage of legal development that all cases of liability may be referred to these two types and that useful distinctions may be reached therefrom. consideration of why one should be held to repair injury, and why he should be held to formal undertakings, belongs to a later stage. juristic theory, beginning in the transition from the strict law to the stage of equity or natural law, becomes a force in the latter stage. as the relations with which the law must deal become more numerous and the situations calling for legal treatment become more complicated, it is no longer possible to have a simple, definite, detailed rule for every sort of case that can come before a tribunal, nor a fixed, absolute form for every legal transaction. hence, under the leadership of philosophical jurists, men turn to logical development of the "nature" or ideal form of situations and to ethical ideas of what "good faith" or "good conscience" demands in particular relations or transactions. the strict law, relying on rule and form, took no account of intention as such. the words took effect quite independently of the thought behind them. but as lawyers began to reflect and to teach something more than a class or professional tradition, as they began to be influenced by philosophy to give over purely mechanical methods and to measure things by reason rather than by arbitrary will, emphasis shifted from form to substance; from the letter to the spirit and intent. the statute was thought of as but the lawmaker's formulation of a principle of natural law. it was not the _uerba_ that were efficacious, as in the strict law, which had inherited the primitive faith in the power of words and thought of the legal formula as if it were a formula of incantation possessing inherent magical force. it was the _ratio iuris_, which transcended words and formulas. so also the traditional rule was not a magic formula discovered by our fathers. it was a customary expression of a principle of natural law. likewise the formal transaction was not a bit of private magic employed to conjure up legal liability. it was the clothing in legally recognized vestments of an intention to do what reason and good faith demand in a given situation. when form and intention concurred the promisor must answer for what he undertook. when the form used did not express or went beyond the intention or was the product of an apparent but not a real intention, the promisee was not to be enriched unjustly at the promisor's expense on the sole basis of the form. moreover the duty was to be one of doing what good faith demanded, not one of doing literally and exactly what the letter of the undertaking called for. and although there was no express undertaking, there might be duties implied in the relation or situation or transaction, viewed as one of good faith, and one might be held to a standard of action because an upright and diligent man, who was his own master, would so act. such is the mode of thinking in the classical period of the roman law and it is closely paralleled by an independent development of juristic thought in the rise of equity and the absorption of the law merchant in our law. it was easy to fit the two categories, delict and formal undertaking, which had come down from the strict law, into the new mode of thought. the typical delict required _dolus_--intentional aggression upon the personality or the substance of another. indeed aquilian _culpa_, in which the fault did not extend to intentional aggression, is a juristic equitable development. hence when the legal was identified with the moral, and such identification is a prime characteristic of this stage, the significant thing in delict seemed to be the moral duty to repair an injury caused by wilful aggression. the legal precept was _alienum non laedere_. also the duty to perform an intentional undertaking seemed to rest on the inherent moral quality of a promise that made it intrinsically binding on an upright man. the legal precept was _suum cuique tribuere_. thus liability seemed to flow from intentional action--whether in the form of aggression or in the form of agreement. the "natural" sources of liability were delict and contract. everything else was assimilated to one or the other of them. liability without fault was quasi-delictal. liability imposed by good faith to prevent unjust enrichment was quasi-contractual. the central idea had become one of the demands of good faith in view of intentional action. in the nineteenth century the conception of liability as resting on intention was put in metaphysical rather than ethical form. law was a realization of the idea of liberty, and existed to bring about the widest possible individual liberty. liberty was the free will in action. hence it was the business of the legal order to give the widest effect to the declared will and to impose no duties except in order to effectuate the will or to reconcile the will of one with the will of others by a universal law. what had been a positive, creative theory of developing liability on the basis of intention, became a negative, restraining, one might say pruning, theory of no liability except on the basis of intention. liability could flow only from culpable conduct or from assumed duties. the abstract individual will was the central point in the theory of liability. if one was not actually culpable and yet established legal precepts which were not to be denied held him answerable, it was because he was "deemed" culpable, the historical legal liability being the proof of culpability. if he had not actually assumed a duty, and yet established legal precepts which were not to be denied held him to answer for it, this must be because he had assumed some relation or professed some calling in which an undertaking to that effect was "implied" or had participated in some situation in which it was "implied,"--the implication being a deduction from the liability. the bases of liability were culpable conduct and legal transaction, and these came down to an ultimate basis in will. the fundamental conception in legal liability was the conception of an act--of a manifestation of the will in the external world. roman law and english law begin with a set of what might be called nominate delicts or nominate torts. in roman law there were _furtum_ (conversion), _rapina_ (forcible conversion) and _iniuria_ (wilful aggression upon personality). all these involved _dolus_, i.e. intentional aggression. the _lex aquilia_ added _damnum iniuria datum_ (wrongful injury to property). later there were added what might be called the equitable delicts of _dolus_ (fraud) and _metus_ (duress). here also there was wilful aggression, and the delict of _dolus_ gets its name from the intentional misleading that characterizes it in roman law as it does deceit in english law. in _damnum iniuria datum_, a wider conception of fault, as distinguished from intentional aggression, grew up by juristic development, and aquilian _culpa_, that is, a fault causing injury to property and therefore actionable on the analogy of the _lex aquilia_, furnished the model for the modern law. all these may be fitted to the will theory and modern systematic writers regularly do so. but noxal liability for injury done by a child or slave or domestic animal did not fit it, nor did the liability of a master of a ship, an innkeeper or a stable keeper to respond without regard to fault. liability for injury done by child or slave or domestic animal was enforced in a noxal action on the analogy of the action which lay for the same injury if done by the defendant in person. hence procedurally it seemed liability for a delict involving intentional aggression, and it was possible to say that there was fault in not restraining the agency that did the injury, although no fault had to be shown nor could absence of fault be shown as a defence. there was fault because there was liability, for all liability grew out of fault. such treadings on the tail of its own argument are very common in legal reasoning. likewise in the case of the absolute liability of the master of a ship, the innkeeper and the stable keeper, the institutional writers could say that they were at fault in not having proper servants, although here also fault need not be established by proof nor could want of fault be made a defence. as procedurally these liabilities arose in actions on the facts of particular cases, the jurists at first lumped them with many other forms of liability, which were not in fact dependent on intention and were enforced in actions _in factum_, as obligations arising from the special facts of cases (_obligationes ex uariis causarum figuris_). later they were called quasi-delictual obligations and they are so designated in the fourfold classification of the institutes. buckland has remarked that in almost all of the liabilities included under quasi-delict in the institutes there is liability at one's peril for the act of another, especially for one's servant, as in the noxal actions, the _actio de deiectis et diffusis_ (for things thrown or poured from buildings upon a way) and the _actio de recepto_ against an innkeeper. in other words, in these cases one was held without regard to fault for injuries incidental to the conduct of certain enterprises or callings and for failure to restrain potentially injurious agencies which one maintained. modern law has given up both the nominate delicts and quasi-delict, as things of any significance. the french civil code made the idea of aquilian _culpa_ into a general theory of delictal liability, saying, "every act of man which causes damage to another obliges him through whose fault it happened to make reparation." in other words, liability is to be based on an act, and it must be a culpable act. act, culpability, causation, damage, were the elements. this simple theory of liability for culpable causation of damage was accepted universally by civilians until late in the nineteenth century and is still orthodox. taken up by text writers on torts in the last half of that century, it had much influence in anglo-american law. but along with this generalization the french code preserved a liability without fault, developed out of the noxal actions, whereby parents and teachers may be held for injuries by minors under their charge, masters for injuries by their apprentices, employers for injuries by employees and those in charge of animals for injuries by such animals. also it provided an absolute liability for injury by a _res ruinosa_, developed out of the roman _cautio damni infecti_. in the case of parents, teachers and masters of apprentices, there is only a presumption of fault. they may escape by showing affirmatively that they were without fault and that what happened could not have been prevented by diligence on their part. in the case of employers no excuse is admitted. the liability is absolute. in the case of animals, fault of the victim, inevitable accident and _vis maior_ may be shown affirmatively by way of defence. in the case of a _res ruinosa_ there is no presumption of fault. but if the structure fell or did injury because of a defect of construction or want of repair, the owner is liable absolutely and may not show that he had no notice of the defect and no reason to suspect it, or that it was not in his power to prevent the structure from falling. thus it will be seen that french law came very near to a logically consistent scheme of liability for fault, and civil liability for fault only, throughout the whole delictal field. employer's liability remained absolute, and liability for animals but little short of absolute. for the rest there was in certain cases an imposition of the burden of proof that there had been no fault, leaving the ultimate liability to rest upon a presumed fault, if want of fault was not established. none the less this, the most thoroughgoing attempt to make delictal liability flow exclusively from culpability--to make it a corollary of fault and of fault only--fell short of complete attainment of its aim. recent french authors do not hesitate to say that the attempt must be given over and that a new theory of civil delictal liability must be worked out. meanwhile the same movement away from the simple theory of delictal liability for culpable causation of damage had taken place elsewhere on the continent. binding had subjected the _culpa-prinzip_ to thorough analysis, and following him it had come to be rejected generally by recent german and swiss jurists. in the common law, as has been said, we begin likewise with a set of nominate torts--assault, battery, imprisonment, trespass on lands, trespass on chattels, conversion, deceit, malicious prosecution, slander and libel--developed procedurally through the action of trespass and the action of trespass on the case. all of these, except trespass on lands, trespass upon possession of chattels and conversion, are cases of intentional injury. trespass on lands, trespass on chattels and conversion involve more than the general security and must be considered in connection with ideas of property. the social interest in security of acquisitions demands that we be able to rely on others keeping off of our lands and not molesting our chattels; that they find out for themselves and at their own risk where they are or with whose chattels they are meddling. but even here there must be an act. if there is no act, there is no liability. to these nominate torts, each with its own special rules, coming down from the strict law, we added a new ground of liability, namely, negligence, going on a principle, not of duty to answer for aggression, but of duty to answer for injuries resulting from falling short of a legal standard of conduct governing affirmative courses of action. some, indeed, sought to give us a "tort of negligence" as a nominate tort. but it was soon recognized that in negligence we have a principle of liability dependent upon a standard, not a tort to be ranged alongside of assault or imprisonment. later, with the rise of doctrines as to injury to advantageous relations and the failure of negligence to account for all unintended harms of which the law actually was taking note, we developed an indefinite number of innominate torts. today with the obsolescence of procedural difficulties, there is no reason why we should not generalize, as the civil law did at the beginning of the last century; and such a generalization was attempted in the last third of the nineteenth century. it became orthodox common law that liability was a corollary of fault. so far as established common-law rules imposed a liability without fault, they were said to be historical exceptions, and some of our courts, under the influence of this theory, were willing to go a long way in abrogating them. liability, without regard to fault, for the acts of servants and employees was reconciled with this theory by the fiction of representation, exposed long ago by mr. justice holmes and later by dr. baty. finally it came to be thought that no liability without fault was not merely common law but was natural law and that any legislative imposition of such liability was arbitrary and unreasonable in itself and hence unconstitutional. on that theory, the new york court of appeals held workmen's compensation unconstitutional, and a minority of the supreme court of the united states recently announced the same proposition. because of its implications for constitutional law, in view of the increasing frequency of legislation imposing responsibility at one's peril in certain enterprises, in the case of certain dangerous agencies and in situations where it is felt that the loss should be borne by all of us rather than by the luckless individual who chances to be hurt, the basis of tort liability has become a question of moment beyond the immediate law of torts. it is a practical question of the first importance, as well as a theoretical question of interest, whether we are to generalize our whole system of tort liability by means of one principle of liability for fault and for fault only, as the french sought to do and as we later sought to do largely under their influence, or, on the other hand, are to admit another source of delictal liability alongside of fault, as the french law does in fact and is coming to do in theory, and as our law has always done in fact. for in our law as it stands one may perceive readily three types of delictual liability: ( ) liability for intentional harm, ( ) liability for unintentional culpable harm, ( ) liability in certain cases for unintended non-culpable harm. the first two comport with the doctrine of no liability without fault. the third cannot be fitted thereto. we must either brand cases of the third type as historical anomalies, of which we are gradually to rid ourselves, or else revise our notions of tort liability. let us remember that the nineteenth century was well advanced before we understood the subject of negligence and that before we had convinced ourselves that no liability without fault was orthodox common law, the highest court of england had given absolute liability a new field by the decision in _rylands_ v. _fletcher_. we are not questioning a long-established dogma in anglo-american administration of justice, therefore, when we ask whether the orthodox theory of the last generation is adequate as an analytical statement of the law that is, or as a philosophical theory of the law that ought to be. my own belief is that it is neither. suppose that instead of beginning with the individual free will we begin with the wants or claims involved in civilized society--as it has been put, with the jural postulates of civilized society. one such postulate, i think we should agree, is that in civilized society men must be able to assume that others will do them no intended injury--that others will commit no intentional aggressions upon them. the savage must move stealthily, avoid the sky-line and go armed. the civilized man assumes that no one will attack him and so moves among his fellow men openly and unarmed, going about his business in a minute division of labor. otherwise there could be no division of labor beyond the differentiation of men of fighting age, as we see it in a primitive society. this postulate is at the foundation of civilized society. everywhere _dolus_ is first dealt with. the system of nominate delicts or nominate torts, both in roman law and in our law, proceeds on this postulate. is it not another such postulate that in civilized society men must be able to assume that their fellow men, when they act affirmatively, will do so with due care, that is with the care which the ordinary understanding and moral sense of the community exacts, with respect to consequences that may reasonably be anticipated? such a postulate is the basis of delictal _culpa_, using _culpa_ in the narrower sense, and of our doctrine of negligence. in roman law and at one time in our law attempts were made to develop this postulate contractually. if in a transaction involving good faith--that is an informal legal transaction--one's conduct fell short of action to which the other party was justified by the understanding of upright men in expecting him to adhere, there was contractual _culpa_; there was a violation of a promise implied in the transaction and consequent liability. we borrowed something of this mode of thought from the romans in our law of bailments and hence think indifferently in terms of tort or contract in that connection, although historically our action for such cases is delictal. in other connections also our law for a time sought to develop this postulate contractually by means of an "implied undertaking to use skill" for which one must answer if his skill fell short of that which the legal standard of affirmative conduct called for under the circumstances. also in the year books an undertaking implied in certain relations or callings to use the skill or diligence which the relation or calling demanded is often made the basis of liability. but here the basis of liability must be found in a relation. the fiction of an undertaking to use the skill or diligence involved in a relation or calling is a juristic way of saying that one who deals with another in such a relation or with another who professes such a calling is justified in assuming the skill and diligence ordinarily involved therein, so that the law holds those in the relation or engaged in the calling to that standard in order to maintain the general security. in other words another, though closely related, postulate of civilized society is involved. it is worth a moment's digression to suggest that such things show how little the historical categories of delict and contract represent any essential or inherent need of legal thinking. austin thought that "the distinction of obligations (or of duties corresponding to rights against persons specifically determined) into obligations which arise from contracts, obligations which arise from injuries, and obligations which arise from incidents which are neither contracts nor injuries," was a "necessary distinction," without which a "system of law evolved in a refined community" could not be conceived. this "necessary" systematic scheme, which must be "a constituent part" of any imaginable developed legal system, is but the roman division into obligations _ex contractu_, obligations _ex delicto_ and obligations _ex uariis causarum figuris_, in which the third category is obviously a catch-all. in trying to fit our law into this necessary scheme, we find three types of cases must go in the third: (a) duties or liabilities attached by law to a relation, (b) duties imposed by law to prevent unjust enrichment, (c) duties involved in an office or calling. in the third of these our anglo-american procedure allows recovery either _ex delicto_ or _ex contractu_. in the second our law sometimes goes on a property theory of constructive trust. in the first duties are sometimes sanctioned affirmatively by conferring legal powers or negatively by legal non-restraint of natural powers, as in the law of domestic relations, where the wife has a power to pledge the husband's credit for necessaries and the law does not interfere with the parent's administering reasonable "correction" to the child. are we to say that these dogmatic departures of our law from the roman scheme are inconceivable or that because of them our law is not matured or was not "evolved in a refined community?" or are we to say that austin derived his systematic ideas, not from scientific study of english law, but from scientific study of roman law in a german university? are we to say that we cannot "imagine coherently" a system of law which enforces warranties indifferently _ex contractu_ or _ex delicto_ as our law does, or which goes further and applies the contract measure of damage _ex delicto_ as does the law of massachusetts? but enough of this. what we have here is not any necessary distinction. it is rather what austin calls a "pervading notion," to be found generally in the systematic ideas of developed legal systems by derivation from the roman books. roman law may have a contractual conception of obligation _ex delicto_--thinking of the delict as giving rise to a debt--and the common law a delictual conception of liability upon contract--thinking in terms of recovery of damages for the wrong of breaking a promise--without much difference in the ultimate results. the fundamental things are not tort and contract but justifiable assumptions as to the mode in which one's fellow men will act in civilized society in many different situations of which aggression and undertaking are but two common types. returning to our second postulate of due care in affirmative courses of conduct, we may note that in the society of today it is no less fundamental than the postulate of no intentional aggression. aggression is the chief if not the only form of anti-social conduct in a primitive society. indeed, a greek writer on law and politics of the fifth century b. c. knew of no other subject of legal precepts. but with the development of machinery and consequent increase in human powers of action, the general security comes to be threatened quite as much by the way in which one does things as by what he does. carelessness becomes a more frequent and more serious source of danger to the general security than aggression. hence a set of nominate delicts requiring _dolus_ is supplemented by a theory of _culpa_. hence a set of nominate torts, characterized by intentional aggression, is supplemented by liability for negligence, and the latter becomes the more important source of legal liability in practice. must we not recognize also a third postulate, namely, that men must be able to assume that others, who keep things or maintain conditions or employ agencies that are likely to get out of hand or escape and do damage, will restrain them or keep them within proper bounds? just as we may not go effectively about our several businesses in a society dependent on a minute division of labor if we must constantly be on guard against the aggressions or the want of forethought of our neighbor, so our complex social order based on division of labor may not function effectively if each of us must stay his activities through fear of the breaking loose or getting out of hand of something which his neighbor harbors or maintains. there is danger to the general security not only in what men do and the way in which they do it, but also in what they fail to do in not restraining things they maintain or agencies they employ which may do injury if not kept strictly in hand. the general security is threatened by wilful aggression, by affirmative action without due regard for others in the mode of conducting it, and by harboring and maintaining things and employing agencies likely to escape or to go out of bounds and do damage. looked at in this way, the ultimate basis of delictal liability is the social interest in the general security. this interest is threatened or infringed in three ways: ( ) intentional aggression, ( ) negligent action, ( ) failure to restrain potentially dangerous things which one maintains or potentially dangerous agencies which one employs. accordingly these three are the immediate bases of delictal liability. controversial cases of liability without fault involve the third postulate. systematic writers have found no difficulty in reconciling the law of negligence with the will theory of liability and the doctrine of no liability without fault. yet they must use the term fault in a strained sense in order to fit our law of negligence with its objective standard of due care, or the roman cases of liability for _culpa_ judged by the abstract standard, into any theory of moral blameworthiness. the doctrine of liability for fault and for fault only has its roots in the stage of equity and natural law, when the moral and the legal are identified, and means that one shall respond for injuries due to morally blameworthy conduct upon his part. as ames puts it, "the unmoral standard of acting at one's peril" is replaced by the question, "was the act blameworthy?" but is an act blameworthy because the actor has a slow reaction time or was born impulsive or is naturally timid or is easily "rattled" and hence in an emergency does not come up to the standard of what a reasonably prudent man would do in such an emergency, as applied _ex post facto_ by twelve average men in the jury box? if our use of "culpable" here were not, as it were, pickwickian, we should allow the defendant in such cases to show what sort of man nature had made him and to call for individualization with respect to his character and temperament as well as with respect to the circumstances under which he acted. as the romanist would say, we should apply a concrete standard of _culpa_. but what the law is really regarding is not his culpable exercise of his will but the danger to the general security if he and his fellows act affirmatively without coming up to the standard imposed to maintain that security. if he acts, he must measure up to that standard at his peril of answering for injurious consequences. whenever a case of negligence calls for sharp application of the objective standard, fault is as much a dogmatic fiction as is representation in the liability of the master for the torts of his servant. in each case the exigencies of the will theory lead us to cover up a liability irrespective of fault, imposed to maintain the general security, by a conclusive imputation of fault to one who may be morally blameless. this is no less true of cases where we speak of "negligence _per se_." reconciliation of common-law absolute liabilities for the getting out of hand of things likely to escape and do damage with the doctrine of no liability without fault has been sought by means of a fiction of negligence, by pronouncing them disappearing historical anomalies, by an economic interpretation that regards them as results of class interest distorting the law, and by a theory of _res ipsa loquitur_. blackstone resorted to the first of these. "a man is answerable," he said, "for not only his own trespass but for that of his cattle also; for if by his negligent keeping they stray upon the land of another ... this is a trespass for which the owner must answer in damages." but note that the negligence here is a dogmatic fiction. no proof of negligence is required of the plaintiff, nor may the defendant show that there was in fact no negligence. the negligence is established by the liability, not the liability by the negligence. in the last century it was usual to refer to absolute liability for trespassing animals, for injuries by wild animals and for injuries by domestic animals, known to be vicious, as disappearing rudiments of the old liability to make composition. the common american doctrine as to cattle running at large upon uncultivated lands seemed to confirm this. yet one need but look beneath the surface to see that the english rule was rejected for a time in america, not because it was in conflict with a fundamental principle of no liability without fault, but because it presupposed a settled community, where it was contrary to the general security to turn cattle out to graze, whereas in pioneer american communities of the past vacant lands which were owned and those which were not owned could not be distinguished and the grazing resources of the community were often its most important resources. the common-law rule, without regard to its basis, was for a time inapplicable to local conditions. it is significant that as the conditions that made the rule inapplicable have come to an end the rule has generally re-established itself. in england it is in full vigor so that the owner of trespassing animals is held for disease communicated by them although he had no knowledge or reason to suppose they were diseased. a rule that can re-establish itself and extend its scope in this way is not moribund. it must have behind it some basis in the securing of social interests. nor have the attempts of some american courts to narrow common-law liability for injuries by known vicious animals to cases of negligent keeping made much headway. the weight of american authority remains with the common-law rule and in england the court of appeal has carried the rule out to the extent of holding the owner notwithstanding the animal was turned loose by the wrongful act of an intermeddling third person. nor have the predictions that the doctrine of _rylands_ v. _fletcher_ would disappear from the law through the courts' smothering it with exceptions--predictions commonly made at the end of the last century--been verified in the event. in the english courts refused to limit the doctrine to adjacent free-holders and they have since extended it to new situations. moreover in america, where we had been told it was decisively rejected, it has been applied in the past decade by more than one court. the leading american cases that profess to reject the doctrine did not involve it nor did they involve the postulate of civilized society on which, as i think, it is based. also the court of appeals of new york, the leading exponent of no liability without fault, had theretofore imposed a liability without regard to negligence in the case of blasting. an ingenious explanation of the doctrine of _rylands_ v. _fletcher_ by means of the economic interpretation of legal history demands more notice. we are told that the english courts were manned by landowners or by judges drawn from the land-owning class; that the doctrine of _rylands_ v. _fletcher_ is a doctrine for landowners and so was not accepted by artisans in the united states. but consider which states applied the rule and which rejected it. it was applied in massachusetts in , in minnesota in , in ohio in , in west virginia in , in missouri in , in texas in . it was rejected by new hampshire in , by new york in , by new jersey in , by pennsylvania in , by california in , by kentucky in , by indiana in . is new york a community of artisans but massachusetts a community of landowners? did the united states begin to change from a country of artisans to one of landowners about the year so that a drift toward the doctrine began at that time after a steady rejection of it between and ? _rylands_ v. _fletcher_ was decided in and is connected with the movement dicey calls collectivism, which, he says, began in . it is a reaction from the notion of liability merely as a corollary of culpability. it restrains the use of land in the interest of the general security. if this view is well taken, if it was an attempt to take account of the social interest in the general security in a crowded country, this may explain the reluctance with which it was received in the united states at first, where pioneer ideas, appropriate to a less crowded agricultural country, lingered at least to the end of the nineteenth century. in the actual american decisions, some follow _rylands_ v. _fletcher_ as an authoritative statement of the common law. other cases go rather on the principle that liability flows from culpability. agricultural states and industrial states alike divide along these doctrinal lines. massachusetts and pennsylvania, both industrial states, are on opposite sides. so are texas and kentucky, which are agricultural states. massachusetts and new jersey, each with an appointive bench, are on opposite sides, and so are ohio and new york, each with an elective bench. in truth the massachusetts court followed authority. in new hampshire chief justice doe was not willing to go on mere authority and decided on the general principle that liability must flow from fault. another view is that the doctrine of _rylands_ v. _fletcher_ is a crude attempt, when negligence and the doctrine of _res ipsa loquitur_ were none too well understood, to apply the principle of the latter doctrine, and that those doctrines will suffice to reach the actual result. no doubt _res ipsa loquitur_ gives a possible mode of treating cases where one maintains something likely to get out of hand and do injury. for four possible solutions may be found for such cases. one is absolute liability, as in _rylands_ v. _fletcher_. another is to put the burden of proof of due care on the defendant, as french law does in some cases and as is done by some american decisions and some statutes in case of fires set by locomotives. a third is to apply the doctrine of _res ipsa loquitur_. a fourth would be to require the plaintiff to prove negligence, as is done by the supreme court of new jersey where a known vicious animal breaks loose. that the fourth, which is the solution required by the theory of no liability without fault, has found but two courts to uphold it, and that only in the case of vicious domestic animals, is suggestive. _res ipsa loquitur_ may easily run into a dogmatic fiction, and must do so, if made to achieve the result of the doctrine of _rylands_ v. _fletcher_, which does not permit the defendant to go forward with proof, short of _vis maior_ or the unanticipated unlawful act of a third person beyond defendant's control. the vitality and persistence of the doctrine against theoretical assault for more than a generation show that it is more than a historical anomaly or a dogmatic blunder. another type of common-law liability without fault, the so-called liability of the carrier as an insurer and the liability of the innkeeper, is relational and depends upon a different postulate. nineteenth-century courts in the united states endeavored to hold down the former, restricting it because of its inconsistency with the doctrine of liability as a corollary of fault. but it has proved to have abundant vitality, has been extended by legislation in some states to carriers of passengers and has been upheld by recent legislation everywhere. two other types of liability, contractual and relational, must receive brief notice. the former has long done valiant service for the will theory. not only liability arising from legal transactions but liability attached to an office or calling, liability attached to relations and liability to restitution in case of unjust enrichment have been referred to express or implied undertaking and hence to the will of the person held. but beneath the surface the so-called contract by estoppel, the cases of acceptance of a wrongly transmitted offer, the doctrine that a public utility has no general power of contract as to facilities or rates except to liquidate the terms of its relational duties in certain doubtful cases, and cases of imposition of duties on husband or wife after marriage by change of law, have caused persistent and recurring difficulties and call everywhere for a revision of our ideas. also the objective theory of contract has undermined the very citadel of the will theory. may we not refer these phenomena, not to the will of the person bound, but to another postulate of civilized society and its corollaries? may we not say that in civilized society men must be able to assume that those with whom they deal in the general intercourse of society will act in good faith? if so, four corollaries will serve as the bases of four types of liability. for it will follow that they must be able to assume (a) that their fellow men will make good reasonable expectations created by their promises or other conduct, (b) that they will carry out their undertakings according to the expectation which the moral sentiment of the community attaches thereto, (c) that they will conduct themselves with zeal and fidelity in relations, offices and callings, and (d) that they will restore in specie or by equivalent what comes to them by mistake or unanticipated situation whereby they receive what they could not have expected reasonably to receive under such circumstances. thus we come back to the idea of good faith, the idea of the classical roman jurists and of the philosophical jurists of the seventeenth century, out of which the will theory was but a metaphysical development. only we give it a basis in social philosophy where they sought a basis in theories of the nature of transactions or of the nature of man as a moral creature. looking back over the whole subject, shall we not explain more phenomena and explain them better by saying that the law enforces the reasonable expectations arising out of conduct, relations and situations, instead of that it proceeds upon willed action and willed action only, enforcing the willed consequences of declared intention, enforcing reparation for willed aggression and enforcing reparation for culpable carrying on of willed conduct? if we explain more and explain it more completely by saying that the ultimate thing in the theory of liability is justifiable reliance under the conditions of civilized society than by saying that it is free will, we shall have done all that we may hope to do by any theory. v property economic life of the individual in society, as we know it, involves four claims. one is a claim to the control of certain corporeal things, the natural media on which human existence depends. another is a claim to freedom of industry and contract as an individual asset, apart from free exercise of one's powers as a phase of personality, since in a highly organized society the general existence may depend to a large extent upon individual labor in specialized occupations, and the power to labor freely at one's chosen occupation may be one's chief asset. third, there is a claim to promised advantages, to promised performances of pecuniary value by others, since in a complex economic organization with minute division of labor and enterprises extending over long periods, credit more and more replaces corporeal wealth as the medium of exchange and agency of commercial activity. fourth, there is a claim to be secured against interference by outsiders with economically advantageous relations with others, whether contractual, social, business, official or domestic. for not only do various relations which have an economic value involve claims against the other party to the relation, which one may demand that the law secure, but they also involve claims against the world at large that these advantageous relations, which form an important part of the substance of the individual, shall not be interfered with. legal recognition of these individual claims, legal delimitation and securing of individual interests of substance is at the foundation of our economic organization of society. in civilized society men must be able to assume that they may control, for purposes beneficial to themselves, what they have discovered and appropriated to their own use, what they have created by their own labor and what they have acquired under the existing social and economic order. this is a jural postulate of civilized society as we know it. the law of property in the widest sense, including incorporeal property and the growing doctrines as to protection of economically advantageous relations, gives effect to the social want or demand formulated in this postulate. so also does the law of contract in an economic order based upon credit. a social interest in the security of acquisitions and a social interest in the security of transactions are the forms of the interest in the general security which give the law most to do. the general safety, peace and order and the general health are secured for the most part by police and administrative agencies. property and contract, security of acquisitions and security of transactions are the domain in which law is most effective and is chiefly invoked. hence property and contract are the two subjects about which philosophy of law has had the most to say. in the law of liability, both for injuries and for undertakings, philosophical theories have had much influence in shaping the actual law. if they have grown out of attempts to understand and explain existing legal precepts, yet they have furnished a critique by which to judge those precepts, to shape them for the future and to build new ones out of them or upon them. this is much less true of philosophical theories of property. their rôle has not been critical or creative but explanatory. they have not shown how to build but have sought to satisfy men with what they had built already. examination of these theories is an illuminating study of how philosophical theories of law grow out of the facts of time and place as explanations thereof and then are given universal application as necessarily explanatory or determinative of social and legal phenomena for all time and in every place. it has been said that the philosophy of law seeks the permanent or enduring element in the law of the time and place. it would be quite as true to say that it seeks to find in the law of the time and place a permanent or enduring picture of universal law. it has been said that the individual in civilized society claims to control and to apply to his purposes what he discovers and reduces to his power, what he creates by his labor, physical or mental, and what he acquires under the prevailing social, economic or legal system by exchange, purchase, gift or succession. the first and second of these have always been spoken of as giving a "natural" title to property. thus the romans spoke of them as modes of "natural acquisition" by occupation or by specification (making a species, i.e., creation). indeed, taking possession of what one discovers is so in accord with a fundamental human instinct that discovery and occupation have stood in the books ever since substantially as the romans stated them. a striking example of the extent to which this doctrine responds to deep-seated human tendencies is afforded by the customs as to discovery of mineral on the public domain upon which american mining law is founded and the customs of the old whale-fishery as to fast-fish and loose-fish which were recognized and given effect by the courts. but there is a difficulty in the case of creation or specification in that except where the creation is mental only materials must be used, and the materials or tools employed may be another's. hence grotius reduced creation by labor to occupation, since if one made from what he discovered, the materials were his by occupation, and if not, the title of others to the materials was decisive. this controversy as to the respective claims of him who creates by labor and him who furnishes the materials goes back to the roman jurists of the classical period. the proculians awarded the thing made to the maker because as such it had not existed previously. the sabinians awarded it to the owner of the materials because without materials the new thing could not have been made. in the maturity of roman law a compromise was made, and various compromises have obtained ever since. in modern times, however, the claim of him who creates has been urged by a long line of writers beginning with locke and culminating in the socialists. the romans spoke of what one acquired under the prevailing social, economic or legal system as held by "civil" acquisition and conceived that the principle _suum cuique tribuere_ secured the thing so acquired as being one's own. roman jurists recognized that certain things were not subject to acquisition in any of the foregoing ways. under the influence of the stoic idea of _naturalis ratio_ they conceived that most things were destined by nature to be controlled by man. such control expressed their natural purpose. some things, however, were not destined to be controlled by individuals. individual control would run counter to their natural purpose. hence they could not be the subjects of private ownership. such things were called _res extra commercium_. they might be excluded from the possibility of individual ownership in any of three ways. it might be that from their nature they could only be used, not owned, and from their nature they were adapted to general use. these were _res communes_. or it might be that they were made for or from their nature they were adapted to public use, that is use for public purposes by public functionaries or by the political community. these were _res publicae_. again it might be because they had been devoted to religious purposes or consecrated by religious acts inconsistent with private ownership. such things were _res sanctae_, _res sacrae_ and _res religiosae_. in modern law, as a result of the medieval confusion of the power of the sovereign to regulate the use of things (_imperium_) with ownership (_dominium_) and of the idea of the corporate personality of the state, we have made the second category into property of public corporations. and this has required modern systematic writers to distinguish between those things which cannot be owned at all, such as human beings, things which may be owned by public corporations but may not be transferred, and things which are owned by public corporations in full dominion. we are also tending to limit the idea of discovery and occupation by making _res nullius_ (e.g., wild game) into _res publicae_ and to justify a more stringent regulation of individual use of _res communes_ (e.g., of the use of running water for irrigation or for power) by declaring that they are the property of the state or are "owned by the state in trust for the people." it should be said, however, that while in form our courts and legislatures seem thus to have reduced everything but the air and the high seas to ownership, in fact the so-called state ownership of _res communes_ and _res nullius_ is only a sort of guardianship for social purposes. it is _imperium_, not _dominium_. the state as a corporation does not own a river as it owns the furniture in the state house. it does not own wild game as it owns the cash in the vaults of the treasury. what is meant is that conservation of important social resources requires regulation of the use of _res communes_ to eliminate friction and prevent waste, and requires limitation of the times when, places where and persons by whom _res nullius_ may be acquired in order to prevent their extermination. our modern way of putting it is only an incident of the nineteenth-century dogma that everything must be owned. it is not hard to see how the romans came to the distinction that has obtained in the books ever since. some things were part of the roman's _familia_, were used by him upon the public domain which he occupied or were traded by him to those with whom he had legal power of commercial intercourse. he acquired them by discovery, by capture in war, by labor in agriculture or as an artisan, by commercial transactions or by inheritance. for these things private actions lay. other things were no part of his or of anyone's household. they were used for political or military or religious purposes or, like rivers, were put to use by everyone without being consumed thereby. as to these, the magisterial rather than the judicial power had to be invoked. they were protected or use of them was regulated and secured by interdicts. one could not acquire them so as to maintain a private action for them. thus some things could be acquired and conveyed and some could not. in order to be valid, however, according to juristic theory the distinction must lie in the nature of things, and it was generalized accordingly. in a time when large unoccupied areas were open to settlement and abundant natural resources were waiting to be discovered and developed, a theory of acquisition by discovery and appropriation of _res nullius_, reserving a few things as _res extra commercium_, did not involve serious difficulty. on the other hand, in a crowded world, the theory of _res extra commercium_ comes to seem inconsistent with private property and the theory of discovery and occupation to involve waste of social resources. as to the latter, we may compare the law of mining and of water rights on the public domain, which developed along lines of discovery and reduction to possession under the conditions of and the federal legislation of and , with recent legislation proceeding on ideas of conservation of natural resources. the former requires more consideration. for the argument that excludes some things from private ownership may seem to apply more and more to land and even to movables. thus herbert spencer says, in explaining _res communes_: "if one individual interferes with the relations of another to the natural media upon which the latter's life depends, he infringes the like liberties of others by which his own are measured." but if this is true of air and of light and of running water, men will insist upon inquiring why it is not true of land, of articles of food, of tools and implements, of capital and even, it may be, of the luxuries upon which a truly human life depends. accordingly, how to give a rational account of the so-called natural right of property and how to fix the natural limits of that right became vexed questions of philosophical jurisprudence. antiquity was content to maintain the economic and social _status quo_ or at least to idealize it and maintain it in an ideal form. the middle ages were content to accept _suum cuique tribuere_ as conclusive. it was enough that acquisition of land and movables and private ownership of them were part of the existing social system. upon the downfall of authority, seventeenth-and eighteenth-century jurists sought to put natural reason behind private property as behind all other institutions. when kant had undermined this foundation, the nineteenth-century philosophical jurists sought to deduce property from a fundamental metaphysical datum; the historical jurists sought to record the unfolding of the idea of private property in human experience, thus showing the universal idea; the utilitarian demonstrated private property by his fundamental test and the positivist established its validity and necessity by observation of human institutions and their evolution. in other words, here as elsewhere, when eighteenth-century natural law broke down, jurists sought to put new foundations under the old structure of natural rights, just as natural rights had been put as a new foundation to support institutions which theretofore had found a sufficient basis in authority. theories by which men have sought to give a rational account of private property as a social and legal institution may be arranged conveniently in six principal groups, each including many forms. these groups may be called: ( ) natural-law theories, ( ) metaphysical theories, ( ) historical theories, ( ) positive theories, ( ) psychological theories and ( ) sociological theories. of the natural-law theories, some proceed on a conception of principles of natural reason derived from the nature of things, some on conceptions of human nature. the former continue the ideas of the roman lawyers. they start with a definite principle found as the explanation of a concrete case and make it a universal foundation for a general law of property. as it has been put, they find a postulate of property and derive property therefrom by deduction. such theories usually start either from the idea of occupation or from the idea of creation through labor. theories purporting to be based on human nature are of three forms. some proceed on a conception of natural rights, taken to be qualities of human nature reached by reasoning as to the nature of the abstract man. others proceed upon the basis of a social contract expressing or guaranteeing the rights derived by reason from the nature of man in the abstract. in recent thinking a third form has arisen which may be called an economic natural law. in this form of theory, a general foundation for property is derived from the economic nature of man or from the nature of man as an economic entity. these are modern theories of natural law on an economic instead of an ethical basis. grotius and pufendorf may be taken as types of the older natural-law theories of property. according to grotius, all things originally were _res nullius_. but men in society came to a division of things by agreement. things not so divided were afterward discovered by individuals and reduced to possession. thus things came to be subjected to individual control. a complete power of disposition was deduced from this individual control, as something logically implied therein, and this power of disposition furnished the basis for acquisition from others whose titles rested directly or indirectly upon the natural foundation of the original division by agreement or of subsequent discovery and occupation. moreover, it could be argued that the control of an owner, in order to be complete, must include not only the power to give _inter vivos_ but also the power to provide for devolution after death as a sort of postponed gift. thus a complete system of natural rights of property was made to rest mediately or immediately upon a postulated original division by agreement or a subsequent discovery and occupation. this theory should be considered in the light of the facts of the subject on which grotius wrote and of the time when he wrote. he wrote on international law in the period of expansion and colonization at the beginning of the seventeenth century. his discussion of the philosophical foundation of property was meant as a preliminary to consideration of the title of states to their territorial domain. as things were, the territories of states had come down in part from the past. the titles rested on a sort of rough adjustment among the invaders of the roman empire. they could be idealized as the result of a division by agreement and of successions to, or acquisitions from, those who participated therein. another part represented new "natural" titles based on discovery and occupation in the new world. thus a romanized, idealized scheme of the titles by which european states of the seventeenth century held their territories becomes a universal theory of property. pufendorf rests his whole theory upon an original pact. he argues that there was in the beginning a "negative community." that is, all things were originally _res communes_. no one owned them. they were subject to use by all. this is called a negative community to distinguish it from affirmative ownership by co-owners. he declares that men abolished the negative community by mutual agreement and thus established private ownership. either by the terms of this pact or by a necessary implication what was not occupied then and there was subject to acquisition by discovery and occupation, and derivative acquisition of titles proceeding from the abolition of the negative community was conceived to be a further necessary implication. in anglo-american law, the justification of property on a natural principle of occupation of ownerless things got currency through blackstone. as between locke on the one side and grotius and pufendorf on the other, blackstone was not willing to commit himself to the need of assuming an original pact. apparently he held that a principle of acquisition by a temporary power of control co-extensive with possession expressed the nature of man in primitive times and that afterwards, with the growth of civilization, the nature of man in a civilized society was expressed by a principle of complete permanent control of what had been occupied exclusively, including as a necessary incident of such control the _ius disponendi_. maine has pointed out that this distinction between an earlier and a later stage in the natural right of property grew out of desire to bring the theory into accord with scriptural accounts of the patriarchs and their relations to the land grazed by their flocks. in either event the ultimate basis is taken to be the nature of man as a rational creature, expressed in a natural principle of control of things through occupation or in an original contract providing for such ownership. with the revival of natural law in recent years a new phase of the justification of property upon the basis of human nature has arisen. this was suggested first by economists who deduced property from the economic nature of man as a necessity of the economic life of the individual in society. usually it is coupled with a psychological theory on the one side and a social-utilitarian theory on the other side. in the hands of writers on philosophy of law it has often taken on a metaphysical color. from another standpoint, what are essentially natural-law theories have been advocated by socialists, either deducing a natural right of the laborer to the whole produce of his labor from a "natural" principle of creation or carrying out the idea of natural qualities of the individual human being to the point of denying all private property as a "natural" institution and deducing a general regime of _res communes_ or _res publicae_. metaphysical theories of property are part of the general movement that replaced seventeenth-and eighteenth-century theories of natural rights, founded on the nature of the abstract man or on an assumed compact, by metaphysical theories. they begin with kant. he first sets himself to justify the abstract idea of _a_ law of property--the idea of a system of "external _meum_ and _tuum_." here, as everywhere else, he begins with the inviolability of the individual human personality. a thing is rightfully mine, he says, when i am so connected with it that anyone who uses it without my consent does me an injury. but to justify the law of property we must go beyond cases of possession where there is an actual physical relation to the object and interference therewith is an aggression upon personality. the thing can only be mine for the purposes of a legal system of _meum_ and _tuum_ where i will be wronged by another's use of it when it is not actually in my possession. this raises in the first instance the question "how is a merely juridical or rational [as distinguished from a purely physical] possession possible?" he answers the question by a metaphysical version of the occupation theory of the eighteenth century. conceding that the idea of a primitive community of things is a fiction, the idea of a logically original community of the soil and of the things upon it, he says, has objective reality and practical juridical reality. otherwise mere objects of the exercise of the will, exempted therefrom by operation of law, would be raised to the dignity of free-willing subjects, although they have no subjective claim to be respected. thus the first possessor founds upon a common innate right of taking possession, and to disturb him is a wrong. the first taking of possession has "a title of right" behind it in the principle of the original common claim to possession. it results that this taker obtains a control "realized by the understanding and independent of relations of space," and he or those who derive from him may possess a parcel of land although remote from it physically. such a possession is only possible in a state of civil society. in civil society, a declaration by word or act that an external thing is mine and making it an object of the exercise of my will is "a juridical act." it involves a declaration that others are under a duty of abstaining from the use of the object. it also involves an admission that i am bound in turn toward all others with respect to the objects they have made "externally theirs." for we are brought to the fundamental principle of justice that requires each to regulate his conduct by a universal rule that will give like effect to the will of others. this is guaranteed by the legal order in civil society and gives us the regime of external mine and thine. having thus worked out a theory of _meum_ and _tuum_ as legal institutions, kant turns to a theory of acquisition, distinguishing an original and primary from a derived acquisition. nothing is originally mine without a juridical act. the elements of this legal transaction of original acquisition are three: ( ) "prehension" of an object which belongs to no one; ( ) an act of the free will interdicting all others from using it as theirs; ( ) appropriation as a permanent acquisition, receiving a lawmaking force from the principle of reconciling wills according to a universal law, whereby all others are obliged to respect and act in conformity to the will of the appropriator with respect to the thing appropriated. kant then proceeds to work out a theory of derivative acquisition by transfer or alienation, by delivery or by contract, as a legal giving effect to the individual will by universal rules, not incompatible with a like efficacy in action of all other wills. this metaphysical version of the roman theory of occupation is evidently the link between the eighteenth century and savigny's aphorism that all property is founded in adverse possession ripened by prescription. when kant's theory is examined it will be found to contain both the idea of occupation and the idea of compact. occupation has become a legal transaction involving a unilateral pact not to disturb others in respect of their occupation of other things. but the pact does not derive its efficacy from the inherent moral force of a promise as such or the nature of man as a moral creature which holds him to promises. its efficacy is not found in qualities of promises or of men, but in a principle of reconciling wills by a universal law, since that principle requires one who declares his will as to object a to respect the declaration of his neighbor's will as to object b. on the other hand, the idea of creation is significantly absent. writing at the end of the eighteenth century, in view of the ideas of rousseau, who held that the man who first laid out a plot of ground and said, "this is mine," should have been lynched, and of the interferings with vested rights in revolutionary france, kant was not thinking how those who had not might claim a greater share in what they produced but how those who had might claim to hold what they had. hegel develops the metaphysical theory further by getting rid of the idea of occupation and treating property as a realization of the idea of liberty. property, he says, "makes objective my personal, individual will." in order to reach the complete liberty involved in the idea of liberty, one must give his liberty an external sphere. hence a person has a right to direct his will upon an external object and an object on which it is so directed becomes his. it is not an end in itself; it gets its whole rational significance from his will. thus when one appropriates a thing, fundamentally he manifests the majesty of his will by demonstrating that external objects that have no wills are not self-sufficient and are not ends in themselves. it follows that the demand for equality in the division of the soil and in other forms of wealth is superficial. for, he argues, differences of wealth are due to accidents of external nature that give to what a has impressed with his will greater value than to what b has impressed with his, and to the infinite diversity of individual mind and character that leads a to attach his will to this and b to attach his will to that. men are equal as persons. with respect to the principle of possession they stand alike. everyone must have property of some sort in order to be free. beyond this, "among persons differently endowed inequality must result and equality would be wrong." nineteenth-century metaphysical theories of property carry out these ideas or develop this method. and it is to be noted that they are all open to attack from the standpoint of the theory of _res extra commercium_. thus hegel's theory comes to this: personality involves exercise of the will with respect to things. when one has exercised his will with respect to a thing and so has acquired a power of control over it, other wills are excluded from this thing and are to be directed toward objects with which other personalities have not been so identified. so long as there are vacant lands to occupy, undeveloped regions awaiting the pioneer, unexploited natural resources awaiting the prospector--in short, so long as there are enough physical objects in reach, if one may so put it, to go round--this would be consistent with the nineteenth-century theory of justice. but when, as at the end of the nineteenth century, the world becomes crowded and its natural resources have been appropriated and exploited, so that there is a defect in material nature whereby such exercise of the will by some leaves no objects upon which the wills of others may be exerted, or a deficiency such as to prevent any substantial exertion of the will, it is difficult to see how hegel's argument may be reconciled with the argument put behind the conception of _res extra commercium_. miller, a scotch hegelian, seeks to meet this difficulty. he says that beyond what is needed for the natural existence and development of the person, property "can only be held as a trust for the state." in modern times, however, a periodical redistribution, as in antiquity, is economically inadmissible. yet if anyone's holdings were to exceed the bounds of reason, "the legislature would undoubtedly interfere on behalf of society and prevent the wrong which would be done by caricaturing an abstract right." in view of our bills of rights, an american hegelian could not invoke the _deus ex machina_ of an act of parliament so conveniently. perhaps he would fall back on graduated taxation and inheritance taxes. but does not miller when hard pressed resort to something very like social-utilitarianism? lorimer connects the metaphysical theory with theories resting on human nature. to begin with, he deduces the whole system of property from a fundamental proposition that "the right to be and to continue to be implies a right to the conditions of existence." accordingly he says that the idea of property is inseparably connected "not only with the life of man but with organic existence in general"; that "life confers rights to its exercise corresponding in extent to the powers of which it consists." when, however, this is applied in explaining the basis of the present proprietary system in all its details resort must be had to a type of artificial reasoning similar to that employed by the jurists of the seventeenth and eighteenth centuries. the abstract idea of ownership is not the only thing the legal philosopher has to consider. moreover the reasoning by which that application is made may not be reconciled with the arguments by which the doctrine of _res extra commercium_ is regarded also as a bit of natural law. although it purports to be wholly different, the positive theory of the basis of property is essentially the same as the metaphysical. thus spencer's theory is a deduction from a fundamental "law of equal freedom" verified by observation of the facts of primitive society. but the "law of equal freedom" supposed to be ascertained by observation, in the same way in which physical or chemical laws are ascertained, is in fact, as has often been pointed out, kant's formula of justice. and the verification of deductions from this law by observation of the facts of primitive civilization is not essentially different from the verification of the deductions from the metaphysical fundamental law carried on by the historical jurists. the metaphysical jurist reached a principle metaphysically and deduced property therefrom. the historical jurist thereupon verified the deduction by showing the same principle as the idea realizing itself in legal history. in the hands of the positivists the same principle is reached by observation, the same deduction is made therefrom, and the deduction is verified by finding the institution latent in primitive society and unfolding with the development of civilization. the most notable difference is that the metaphysical and historical jurists rely chiefly on primitive occupation of ownerless things, while the positivists have been inclined to lay stress upon creation of new things by labor. in any event, laying aside the verification for the moment, the deduction as made by spencer involves the same difficulties as those involved in the metaphysical deduction. moreover, like the metaphysical deduction, it accounts for an abstract idea of private property rather than for the regime that actually exists. inequalities are assumed to be due to "greater strength, greater ingenuity or greater application" of those who have acquired more than their fellows. hence, as the end of law is taken to be the bringing about of a maximum of individual free self-assertion, any interference with one's holding the fruits of his greater strength or greater ingenuity or greater application, and his resulting greater activity in creative or acquisitive self-assertion, would contravene the very purpose of the legal order. it will be noted also that this theory, like all that had gone before, assumes a complete _ius disponendi_ as implied in the very notion of property. but does not this also require demonstration? is the _ius disponendi_ implied in the idea which they demonstrate or is it only an incident of the institution they are seeking to explain by the demonstration? historical jurists have maintained their theory on the basis of two propositions: ( ) the conception of private property, like the conception of individual personality, has had slow but steady development from the beginnings of law; ( ) individual ownership has grown out of group rights just as individual interests of personality have been disentangled gradually from group interests. let us look at each of these propositions in some detail. if we examine the law of property analytically, we may see three grades or stages in the power or capacity which men have of influencing the acts of others with respect to corporeal objects. one is a mere condition of fact, a mere physical holding of or physical control over the thing without any other element whatever. the roman jurists called this natural possession. we call it custody. writers on analytical jurisprudence regard it as an element of possession. but this natural possession is something that may exist independently of law or of the state, as in the so-called _pedis possessio_ of american mining law, where, before law or state authority had been extended to the public domain in the mining country, the miners recognized the claim of one who was actually digging to dig without molestation at that spot. the mere having of an object in one's actual grasp gives an advantage. but it may be only an advantage depending on one's strength or on recognition of and respect for his personality by his fellow men. it is not a legal advantage except as the law protects personality. it is the physical person of the one in natural possession which is secured, not his relation to the thing held. analytically the next grade or stage is what the romanist calls juristic possession as distinguished from natural possession. this is a legal development of the extra-legal idea of custody. where custody or the ability to reproduce a condition of custody is coupled with the mental element of intention to hold for one's own purposes, the legal order confers on one who so holds a capacity protected and maintained by law so to hold, and a claim to have the thing restored to his immediate physical control should he be deprived of it. as the romanist puts it, in the case of natural possession the law secures the relation of the physical person to the object; in juristic possession the law secures the relation of the will to the object. in the highest grade of proprietary relation, ownership, the law goes much further and secures to men the exclusive or ultimate enjoyment or control of objects far beyond their capacity either to hold in custody or to possess--that is, beyond what they could hold by physical force and beyond what they could actually hold even by the help of the state. natural possession is a conception of pure fact in no degree dependent upon law. the legally significant thing is the interest of the natural possessor in his personality. possession or juristic possession is a conception of fact and law, existing as a pure relation of fact, independent of legal origin, but protected and maintained by law without regard to interference with personality. ownership is a purely legal conception having its origin in and depending on the law. in general the historical development of the law of property follows the line thus indicated by analysis. in the most primitive social control only natural possession is recognized and interference with natural possession is not distinguished from interference with the person or injury to the honor of the one whose physical contact with the physical object is meddled with. in the earlier legal social control the all-important thing is seisin, or possession. this is a juristic possession, a conception both of fact and of law. such institutions as tortious conveyance by the person seised in the common law are numerous in an early stage of legal development. they show that primarily the law protected the relation to an object of one who had possession of it. indeed the idea of _dominium_, or ownership as we now understand it, was first worked out thoroughly in roman law, and other systems got their idea of it, as distinguished from seisin, from the roman books. recognition of individual interests of substance, or in other words individual property, has developed out of recognition of group interests, just as recognition of individual interests of personality has evolved gradually from what in the first instance was a recognition of group interests. the statement which used to be found in the books that all property originally was owned in common means nothing more than this: when interests of substance are first secured they are interests of groups of kindred because in tribally organized society groups of kindred are the legal units. social control secures these groups in the occupation of things which they have reduced to their possession. in this sense the first property is group property rather than individual property. yet it must be noted that wherever we find a securing of group interests, the group in occupation is secured against interference of other groups with that occupation. two ideas gradually operated to break up these group interests and bring about recognition of individual interests. one of these is the partition of households. the other is the idea of what in the hindu law is called self-acquired property. in primitive or archaic society as households grow unwieldy there is a partition which involves partition of property as well as of the household. indeed in hindu law partition is thought of as partition of the household primarily and as partition of property only incidentally. also in roman law the old action for partition is called the action for partitioning the household. thus, at first, partition is a splitting up of an overgrown household into smaller households. presently, however, it tends to become a division of a household among individuals. thus in roman law on the death of the head of a household each of his sons in his power at his death became a _pater familias_ and could bring a proceeding to partition the inheritance although he might be the sole member of the household of which he was the head. in this way individual ownership became the normal condition instead of household ownership. in hindu law household ownership is still regarded as the normal condition. but with changes in society and the rise of commercial and industrial activity, a change has been taking place rapidly which is making individual ownership the normal type in fact, if not in legal theory. self-acquired property, the second disintegrating agency, may be seen in hindu law and also in roman law. in hindu law all property is normally and _prima facie_ household property. the burden is upon anyone who claims to be the individual owner of anything. but an exceptional class of property is recognized which is called self-acquired property. such property might be acquired by "valor," that is, by leaving the household and going into military service and thus earning or acquiring by way of booty, or by "learning," that is, by withdrawing from the household and devoting oneself to study and thus acquiring through the gifts of the pious or the exercise of knowledge. a third form was recognized later, namely, property acquired through the use of self-acquired property. in the same way in roman law the son in the household, even if of full age, normally had no property. legally all property acquired by any member of the household was the property of the head of the household as the legal symbol and representative thereof. later the head of the household ceases to be thought of as symbolizing the household and the property was regarded legally as his individual property. but roman law recognized certain kinds of property which sons in the household might hold as their own. the first of these was property earned or acquired by the son in military service. later property earned in the service of the state was added. finally it came to be law that property acquired otherwise than through use of the patrimony of the household might be held by the son individually though he remained legally under the power of the head. in the two ways just explained, through partition and through the idea of self-acquired property, individual interests in property came to be recognized throughout the law. except for the institution of community property between husband and wife in civil-law countries, or as it is called the matrimonial property regime, there is practically nothing left of the old system of recognized group interests. and even this remnant of household group ownership is dissolving. all legally recognized interests of substance in developed legal systems are normally individual interests. to the historical jurist of the nineteenth century, this fact, coupled with the development of ownership out of possession, served to show us the idea which was realizing in human experience of the administration of justice and to confirm the position reached by the metaphysical jurists. individual private property was a corollary of liberty and hence law was not thinkable without it. even if we do not adopt the metaphysical part of this argument and if we give over the idealistic-political interpretation of legal history which it involves, there is much which is attractive in the theory of the historical jurists of the last century. yet as we look at certain movements in the law there are things to give us pause. for one thing, the rise and growth of ideas of "negotiability," the development of the maxim _possession vaut titre_ in continental law, and the cutting down in other ways of the sphere of recognition of the interest of the owner in view of the exigencies of the social interest in the security of transactions, suggests that the tendency involved in the first of the two propositions relied on by the historical school has passed its meridian. the roman doctrine that no one may transfer a greater title than he has is continually giving way before the demand for securing of business transactions had in good faith. and in roman law in its maturity the rules that restricted acquisition by adverse possession and enabled the owner in many cases to reclaim after any lapse of time were superseded by a decisive limitation of actions which cut off all claims. the modern law in countries which take their law from rome has developed this decisive limitation. likewise in our law the hostility to the statute of limitations, so marked in eighteenth-century decisions, has given way to a policy of upholding it. moreover the rapid rise in recent times of limitations upon the _ius disponendi_, the imposition of restrictions in order to secure the social interest in the conservation of natural resources, and english projects for cutting off the _ius abutendi_ of the landowner, could be interpreted by the nineteenth-century historical jurists only as marking a retrograde development. when we add that with the increase in number and influence of groups in the highly organized society of today a tendency is manifest to recognize practically and in back-handed ways group property in what are not legal entities, it becomes evident that the segment of experience at which the historical jurists were looking was far too short to justify a dogmatic conclusion, even admitting the validity of their method. it remains to consider some twentieth-century theories. these have not been worked out with the same elaboration and systematic detail as those of the past, and as yet one may do no more than sketch them. an instinctive claim to control natural objects is an individual interest of which the law must take account. this instinct has been the basis of psychological theories of private property. but thus far these theories have been no more than indicated. they might well be combined with the historical theory, putting a psychological basis in place of the nineteenth-century metaphysical foundation. a social-psychological legal history might achieve much in this connection. of sociological theories, some are positivist, some psychological and some social-utilitarian. an excellent example of the first is duguit's deduction from social interdependence through similarity of interest and through division of labor. he has but sketched this theory, but his discussion contains many valuable suggestions. he shows clearly enough that the law of property is becoming socialized. but, as he points out, this does not mean that property is becoming collective. it means that we are ceasing to think of it in terms of private right and are thinking of it in terms of social function. if one doubts this he should reflect on recent rent legislation, which in effect treats the renting of houses as a business affected with a public interest in which reasonable rates must be charged as by a public utility. also it means that cases of legal application of wealth to collective uses are becoming continually more numerous. he then argues that the law of property answers to the economic need of applying certain wealth to definite individual or collective uses and the consequent need that society guarantee and protect that application. hence, he says, society sanctions acts which conform to those uses of wealth which meet that economic need, and restrains acts of contrary tendency. thus property is a social institution based upon an economic need in a society organized through division of labor. it will be seen that the results and the attitude toward the law of property involved are much the same as those which are reached from the social-utilitarian standpoint. psychological sociological theories have been advanced chiefly in italy. they seek the foundation of property in an instinct of acquisitiveness, considering it a social development or social institution on that basis. social-utilitarian theories explain and justify property as an institution which secures a maximum of interests or satisfies a maximum of wants, conceiving it to be a sound and wise bit of social engineering when viewed with reference to its results. this is the method of professor ely's well-known book on property and contract. no one has yet done so, but i suspect one might combine this mode of thought with the civilization interpretation of the neo-hegelians and argue that the system of individual property, on the whole, conduces to the maintaining and furthering of civilization--to the development of human powers to the most of which they are capable--instead of viewing it as a realization of the idea of civilization as it unfolds in human experience. perhaps the theories of the immediate future will run along some such lines. for we have had no experience of conducting civilized society on any other basis, and the waste and friction involved in going to any other basis must give us pause. moreover, whatever we do, we must take account of the instinct of acquisitiveness and of individual claims grounded thereon. we may believe that the law of property is a wise bit of social engineering in the world as we know it, and that we satisfy more human wants, secure more interests, with a sacrifice of less thereby than by anything we are likely to devise--we may believe this without holding that private property is eternally and absolutely necessary and that human society may not expect in some civilization, which we cannot forecast, to achieve something different and something better. vi contract wealth, in a commercial age, is made up largely of promises. an important part of everyone's substance consists of advantages which others have promised to provide for or to render to him; of demands to have the advantages promised which he may assert not against the world at large but against particular individuals. thus the individual claims to have performance of advantageous promises secured to him. he claims the satisfaction of expectations created by promises and agreements. if this claim is not secured friction and waste obviously result, and unless some countervailing interest must come into account which would be sacrificed in the process, it would seem that the individual interest in promised advantages should be secured to the full extent of what has been assured to him by the deliberate promise of another. let us put this in another way. in a former lecture i suggested, as a jural postulate of civilized society, that in such a society men must be able to assume that those with whom they deal in the general intercourse of the society will act in good faith, and as a corollary must be able to assume that those with whom they so deal will carry out their undertakings according to the expectations which the moral sentiment of the community attaches thereto. hence, in a commercial and industrial society, a claim or want or demand of society that promises be kept and that undertakings be carried out in good faith, a social interest in the stability of promises as a social and economic institution, becomes of the first importance. this social interest in the security of transactions, as one might call it, requires that we secure the individual interest of the promisee, that is, his claim or demand to be assured in the expectation created, which has become part of his substance. in civil-law countries the interest of the promisee, and thus the social interest in the security of transactions, is well secured. the traditional requirement of a _causa ciuilis_, a civil, i.e., legal, reason for enforcing a pact, gave way before natural-law ideas in the eighteenth century. pothier gave over the contract categories of the roman law as being "very remote from simplicity." then came the rise of the will theory of legal transactions in the nineteenth century. french law made intention of gratuitously benefiting another a _causa_. the austrian code of presumed a _causa_, requiring a promisor to prove there was none. and this means that he must prove the promise was not a legal transaction--that there was no intention to enter into a binding undertaking. in the result, abstract promises, as the civilian calls them, came to be enforced equally with those which came under some formal roman category and with those having a substantial presupposition. modern continental law, apart from certain requirements of proof, resting on the same policy as our statute of frauds, asks only, did the promisor intend to create a binding duty? likewise in civil-law countries the enforcing machinery is modern and adequate. the oldest method of enforcement in roman law was seizure of the person, to coerce satisfaction or hold the promisor in bondage until his kinsmen performed the judgment. later there was a pecuniary condemnation or, as we should say, a money judgment in all cases, enforced in the classical law by universal execution or, as we should say, by involuntary bankruptcy. but along with this remedy specific relief grew up in the _actio arbitraria_, a clumsy device of specific performance on the alternative of a heavy money condemnation, which repeated itself in pennsylvania before equity powers were given the courts, and is substantially repeating in our federal courts in their attempts to apply equitable relief to torts committed in foreign jurisdictions. the civil law developed, or perhaps the canon law developed and the civil law took over, an _actio ad implendum_ or action to require performance, with natural execution, that is a doing by the court or its officers at the expense of the defendant, of that to which he is bound as ascertained by the judgment. in general in civil-law countries today what we call specific performance is the rule. a money reparation for breach of contract is the exceptional remedy. it is only when for some reason specific relief is impracticable or inequitable, as in contracts of personal service, that money relief is resorted to. in countries governed by the common law we do not secure this interest so completely nor so effectively. for one thing we do not recognize as legally enforceable all intentional promises intended to be binding upon the promisor. many technical rules as to consideration, rules having chiefly a historical basis, stand in the way. many jurisdictions have abolished private seals and have made no provision for formal gratuitous or abstract promises. moreover, we do not give specific relief ordinarily but only exceptionally where pecuniary relief is considered inadequate. hence in the great majority of cases the promisee cannot compel performance in specie. if we look into the reasons for this wide and effective enforcement of promises in the one system and narrower and less effective enforcement in the other, we come in both cases upon a mixture of historical background and philosophical reasoning, each influencing the other and neither governing the subject completely. philosophical theories have arisen to explain existing rules and have been the basis of new rules and of remaking of old ones. but they have been the means also, at times, of intrenching the rules they sought to explain and of fastening on the law doctrines of which it were better rid. nowhere is the reciprocal action of legal rules and philosophical theories more strikingly manifest than in our law of contractual liability. law did not concern itself at first with agreements or breaches of agreements. its function was to keep the peace by regulating or preventing private war and this only required it to deal with personal violence and with disputes over the possession of property. i may remind you of the proposition of hippodamus in the fifth century b. c. that there were but three subjects of lawsuits, namely, insult, injury and homicide. if a dispute over breach of an agreement led to an assault and a breach of the peace, tribunals might be called on to act. but it was the assault not the breach of agreement with which they were concerned. controversy as to possession of property was a fertile source of disturbance of the peace and tribunals would entertain an action to recover possession. agreements to compound for a wrong are perhaps the earliest type. but the law had its eye upon the need of composition, not upon the agreement. no basis for a law of contracts was to be found in the power of the tribunals with respect to injuries although our law did make assumpsit out of trespass on the case. on the other hand recovery of property could be used for this purpose. hence the first legal, as distinguished from religious, contract was worked out on the analogy of a real transaction. before this, however, another possibility had developed in the religiously sanctioned promise. religion, the internal discipline of the organized kindred, and the law of the state were three co-ordinate agencies of social control in ancient society. nor was law for a long time the chief of these nor the one which covered the widest field. if the gods had been called to witness or good faith had a religious sanction, the duty to keep a promise was a matter for religion. otherwise the mere pact or agreement not within the cognizance of the priests was but a matter for self-help. hindu law shows the idea of religious duty to keep faith in full vigor. in the hindu system the relation between the parties to a debt is not legal but religious and now that a law has grown up under english influence it is said that there is a legal obligation because there is a religious obligation. a man is bound in law because and to the extent that he is bound in religion and not otherwise and no more. to the hindu lawyer a debt is not an obligation merely. it is a sin the consequences whereof follow the debtor into another world. vrihaspati says: "he who, having received a sum lent or the like does not return it to the owner, will be born hereafter in his creditor's house a slave, a servant, a woman or a quadruped." narada says that when one dies without having paid his debt, "the whole merit of his devotions or of his perpetual fire belongs to his creditors." in short the debtor is looked on as one who wrongfully withholds from the creditor the latter's property and hence as in some sort a thief. the legal idea, so far as there is one, is not one of obligation but of a property right in the creditor. one may suspect that religious obligation arising from the detention of property is a legal way of putting it in a polity in which social control is primarily religious and religious precepts are turning into legal precepts. at any rate the hindus carry the idea of religious obligation so far that a descendant is bound to pay the debts of his ancestor in many cases whether he receives any assets of the ancestor or not. the liability of the son to pay the father's debt is held to arise from the moral and religious duty of rescuing the father from the penalties attaching in a future state to non-payment of debts. accordingly if the debt is of such a kind that no penalties would so attach, there is no religious duty and hence no obligation imposed upon the descendant. roman law in its earliest stage was not unlike this. agreements of themselves were not cognizable by the tribunals. it was no ground for summoning a defendant before the magistrate that he had made a promise and had broken it. agreements were matters for religion or for kin or guild discipline. if one had called on the gods to witness his promise or sworn to fulfil it, he was liable to pontifical discipline. the presence of an impious oath breaker was a social danger and he might be devoted to the infernal gods. as law replaced religion as the controlling regulative agency, the old religiously sanctioned promise becomes a formal legal contract. thus in the strict law we get formal contracts with their historical origin in religious duty, and formal contracts with their historical origin in a legal duty created by a real transaction of suretyship or conveyance, perhaps by calling the people to witness so that there is an affront to the state if they are called upon in vain. when contact with greek philosophers set the roman jurists to thinking about the basis of obligation, there were two sorts of promises: ( ) formal promises, (a) by stipulation, using the sacramental word _spondeo_ and thus assuming the pouring out of a libation that the gods might take notice of the promise, (b) by public ceremony apparently symbolizing a real transaction before the whole people, (c) entered upon the household books of account, and ( ) mere informal promises not recognized by law. the latter depended wholly on the good faith of the maker since the law had put down self-help which formerly had been available to the promisee. accordingly roman jurists distinguished civil obligations and natural obligations--those recognized and secured legally and those which primarily had only a moral efficacy. a _nudum pactum_ or mere agreement or mere promise, not clothed with legal efficacy because it did not come within any of the categories of legal transactions sanctioned by the _ius ciuile_, created only a natural obligation. it was right and just to adhere to such a pact, but only contracts, undertakings recognized by law because of their form or nature, were enforceable. with increasing pressure of the social interest in the security of transactions through economic development and commercial expansion, the natural-law philosophy slowly affected this simple scheme of formal undertakings legally recognized and enforceable and informal undertakings of only moral efficacy, and brought about the complicated system of enforceable undertakings in the maturity of roman law with which you are familiar. four features of this movement are noteworthy. in the first place it led to a juristic theory of formal contract which has affected our ideas ever since. in the strict law the source of obligation was in the form itself. for in primitive thinking forms have an intrinsic efficacy. it has often been pointed out that the faith in legal forms belongs to the same order of thought as faith in forms of incantation and that legal forms are frequently symbols to be classed psychologically with the symbols of magic. the stage of equity and natural law, relying on reason rather than on form, governed by philosophy instead of by naïve faith, looked for the substance and found it in a pact preceding and presupposed by the formal ceremony. thus a formal contract was a pact with the addition of legal form. the pact was the substance of the transaction. the form was a _causa ciuilis_ or legal reason for enforcing the pact. but if the form was only a legal reason for enforcing something that got its natural efficacy in another way, it followed that there might well be other legal reasons for enforcement besides form. consequently new categories of contract were added to the old formal contracts and it is significant that while the latter were transactions _stricti iuris_ the former were considered transactions _bonae fidei_ involving liability to what good faith demanded in view of what had been done. in the scope of their obligation these contracts responded exactly to the postulate of civilized society that those with whom we deal will act in good faith and will carry out their undertakings according to the expectations of the community. on the other hand the old formal contracts responded thereto in part only since their obligation was one to do exactly what the terms of the form called for, no more and no less. when one makes _nexum_, said the twelve tables, as he says orally so be the law. new categories were added in successive strata, as it were, and juristic science sought afterward to reduce them to system and logical consistency. thus real contracts, consensual contracts and innominate contracts were added. but it is evident that many of these are juristic rationalizings of what had been done for a long time through formal transactions. thus the consensual contract of sale with its implied warranties rationalizes transfer by _traditio_ with stipulations for the price and for warranties. the real contract of _depositum_ rationalizes _fiducia cum amico_. the real contract of _mutuum_ rationalizes _pecunia credita_. but the latter was so thoroughly established as a formal transaction that the case of a loan of money, analytically a real contract, preserved the incidents of the strict law. moreover certain pacts, _pacta adiecta_, _pacta praetoria_, became actionable which do not fit into the analytical scheme of the institutes. for example, a _causa_ or reason for enforcing these pacts was found in their being incidental to something else or in a pre-existing natural obligation which they undertook to satisfy. there still remained natural obligations which had not been given legal efficacy as the basis of actions. the mere will of the person who undertook or the claim of the promisee was not a reason for enforcing. yet in reason they were morally binding and the legal and moral should coincide. hence they might be used defensively or as the basis of a set-off. meanwhile the forms of stipulation and of literal contract had been reduced to their lowest terms by conceiving them in terms of substance, and taking orally expressed agreement to be the substance of the one and writing to be the substance of the other. the results have defied analysis although the best that juristic ingenuity could do has been expended upon them for centuries. in the middle ages primitive ideas came back for a time through germanic law. general security in its lowest terms of peace and order was the pressing social interest. there was little commercial activity. the civilization of the time did not involve the corollaries of our jural postulate. religiously sanctioned undertakings by promissory oath and real transactions of pledge of person or property and of exchange gave rise to a simple system of formal undertakings. out of these came a theory of _causa debendi_, or reason for owing the promised performance, which has had a profound influence upon subsequent thinking. the roman _causa ciuilis_ was a legal reason for enforcing a pact. under the influence of the germanic idea _causa_ becomes a reason for making the pact, the good reason for making it furnishing a sufficient reason for enforcing it. for a time it seemed that the church might succeed in establishing a jurisdiction over promises. oaths and vows involved religious duties and might well be claimed as the province of the spiritual. but the moral obligation of pacts, binding the conscience of a christian, might also be cognizable by a zealous corrector of the conduct of the faithful for their soul's welfare. had not the power of the canon law broken down and the law of the state developed rapidly in respect of the security of transactions after the sixteenth century, the law of contracts might have grown along religious instead of along philosophical lines, and perhaps not to its advantage. as it is, one need but read doctor and student with the title _de pactis_ of the _corpus iuris canonici_ and casuist writings as to the moral efficacy of promises before him, to see that religion paved the way for much that was done presently in the name of philosophy. to the jurists of the seventeenth and eighteenth centuries no distinction between natural obligations and civil obligations was maintainable since all natural rights or obligations must for the very reason that they were natural be legal also. if it was morally obligatory that one adhere to a pact, then it must be treated as a contract. however much systematized analytically, the roman categories of contract did not deal with undertakings from this standpoint. what the jurists desired was not analytical categories but a principle upon which men were to be held or not to be held upon their promises. thus the philosophy of contract, the principles underlying the binding force of promises and agreements, became the chief problem of philosophical jurisprudence of the seventeenth century, as interests of personality were the chief subject of discussion in the eighteenth century, and interests of substance, the philosophy of the law of property, the chief subject of discussion in the nineteenth century. the decisive element in seventeenth-century thought as to contract was the idea of natural law; the idea of deduction from the nature of man as a moral creature and of legal rules and legal institutions which expressed this ideal of human nature. but the idea was put to work upon existing materials and the result was a reciprocal influence of the conception of enforcing promises as such because morally binding, on the one hand, shaped to some extent by canon law and casuist discussions of what promises were binding in conscience and when, and the ideas of _nudum pactum_ and _causa debendi_ on the other hand. roman law was assumed to be embodied reason. as d'aguesseau put it, rome was ruling by her reason, having ceased to rule by her authority. hence all consideration of the subject starts with the assumption that there are morally naked agreements which for that reason are to be naked legally. where there was an exchange of promises there was the authority of justinian for enforcement (_synallagma_) and it was easy to find a reason in the analogy of exchange of property. where something was exchanged for a promise, that something was a _causa debendi_. but suppose there was no exchange of promises nor was anything exchanged for the promise. there was nothing but a promise assented to. in roman law this would have to take the form of a stipulation. in the germanic law it would have required an oath or the form of a real transaction of pledge or exchange. at common law it required delivery of a sealed instrument. clearly there was no moral efficacy inherent in these forms. why should these "abstract" promises be enforced and not others? should every such promise be enforced or should none be enforced without something in the way of exchange, or should such promises be classified for the purpose of enforcement, and if so, how? two theories arose in the seventeenth century. one may be called the theory of an equivalent. this theory is obviously a rationalization of the germanic _causa debendi_ influenced by canon law and casuist writings. according to this theory an abstract promise, no equivalent having been given for it, is not naturally and hence is not legally binding. three reasons have been given for this which have figured in juristic discussion of the subject ever since. it was said that one who trusts another who makes a promise for no equivalent does so rashly. he cannot ask to be secured in such an unfounded expectation. this is too much in the spirit of the strict law. it denies any interest except where the law secures it. it says that if the law does not secure the interest, one is a fool to rely on the promise and so has no interest. in like manner the strict law said that if one gave his formal undertaking through fraud or mistake or coercion, he was a fool or a coward and was not to be helped. but we cannot prove the interest by the law. we must measure the law with reference to the interest. again it was said that if one promises without equivalent he does so more from "ostentation" than from real intention and so an equivalent shows that he acted from calculation and deliberately. it is only deliberate promises that are morally binding, for only such promises are relied upon by the prudent, upright man in his intercourse with his neighbors. if this reason is sound, equivalent is only a mode of proving deliberation and the real point should be that the promise was made deliberately as something by which the maker expected to be bound, not that the deliberation was evidenced in a particular way by an equivalent. a third reason was that one who parted with an equivalent in exchange for or in reliance on a promise is injured in his substance if the promise is not kept. but if this is the reason, the law should simply require restitution in case of non-performance. if the interest involved is the deduction from substance through rendering the equivalent, the obligation should be _quasi ex contractu_ rather than _ex contractu_. our anglo-american law of contracts was much influenced by this theory of equivalents. in the seventeenth century four types of promise were legally enforceable at common law: ( ) a formal acknowledgment of indebtedness by bond under seal, often conditioned upon performance of a promise for which it was a security, ( ) a covenant or undertaking under seal, ( ) the real contract of debt, and ( ) a simple promise upon consideration, that is, in exchange for an act or for another promise. the first conclusively acknowledged an equivalent, in the second it could be said that the seal presupposed or implied one, in the third the obligation arose from the detention of something by him to whom it had been delivered, and in the fourth the act or counter-promise was the motive or consideration for the promise and as a cause of or reason for making it was the equivalent for which the promisor chose to assume the undertaking. with some aid from a dogmatic fiction in the case of covenants, the common law could be adjusted to this theory reasonably well. accordingly as far back as bacon we find consideration treated from this standpoint in the english books. but it was never a satisfactory explanation. if the theory was sound it ought not to matter whether the equivalent was rendered before the promise or after it or simultaneously with it. indeed, english equity in the nineteenth century took subsequent action in reliance upon a promise of a gift to be a common-law consideration on the basis whereof the promise was specifically enforceable. equity never wholly adopted this or any other theory. at least after the middle of the eighteenth century equity was supposed to follow the law as to what was a contract. but the common law was not settled till the nineteenth century and we find the chancellors using consideration frequently to mean not equivalent but any reason for making the promise and thus making it synonymous with the civilian's _causa_. the so-called meritorious consideration, consideration of blood and of love and affection, and the cases of promises sustained by moral obligation of a debtor to secure his creditor, of a husband to settle property on his wife and of a parent to provide for a child, show the idea of _causa_ at work in equity. it is significant that doctor and student was often cited in these connections. the most thoroughgoing attempt to apply the equivalent theory to be found in the books is langdell's working out of a system of the so-called conditions implied in law or dependent promises on that basis. as an example of vigorous legal analysis it rivals austin. but it did not succeed in shaping the law. on the continent the second theory, the theory of the inherent moral force of a promise made as such, came to prevail. this was the theory of grotius. it was generally adopted by continental writers of the eighteenth century and, as has been seen, it broke down the roman categories and led to the rule that a promise as such, intending a legal transaction, created legal obligation. at the end of the eighteenth century lord mansfield came very near establishing it in our law by his doctrine that no promise made as a business transaction could be _nudum pactum_. but he was too late. growth stopped for a season and the nineteenth century set itself to systematize and harmonize what it had received rather than to carry the development further. when the natural-law foundation of enforcing promises crumbled, the metaphysical jurists sought to provide a new one. kant said that it was impossible to prove that one ought to keep his promise, considered merely as a promise, and deduced contract from property as a form of conveyance or alienation of one's substance involved in the very idea of individual rights. so far as consistent with abstract freedom of will according to a universal law one might alienate his services as well as his property, and an undertaking to perform something was an alienation of that sort. this view was generally taken so that while the seventeenth century sought to rest rights upon contract and the eighteenth century rested contract on the inherent moral significance of a promise, the nineteenth century, making the philosophy of property the important thing, rested contract on property. three of these theories are worth a moment's notice. fichte says that the duty of performing an agreement arises when one party thereto begins to act under it. juristically this seems to be a rationalization of the roman innominate contract. there, in case a pact was performed on one side, he who performed might claim restitution _quasi ex contractu_ or claim the counter-performance _ex contractu_. philosophically the idea seems to be that of the equivalent theory, in the form with which we are familiar in anglo-american discussion of this subject as the injurious-reliance theory. according to the latter, unless the promisee has parted with an equivalent or has begun to act in reliance upon the agreement, he has no moral claim to fulfilment. this is not a theory of the law as it is or as it ever has been. formal contracts require nothing of the sort. it is true, english equity, under the influence of the equivalent theory, did lay down in the nineteenth century that a contract under seal with no common-law consideration behind it would not be enforced. but that proposition was subject to many exceptions when it was announced, more have since developed and more are developing. as things are, the exceptions are of more frequent application than the rule itself. nor is fichte's theory a statement of moral ideas of his day or of ours. then and now the moral duty to keep abstract promises was and is recognized. that a man's word should be "as good as his bond" expresses the moral sentiment of civilized society. but the philosopher saw that the law did not go so far and was trying to frame a rational explanation of why it fell short. it should be noticed that fichte is really trying to show why a promise may be regarded as a part of one's substance and why one's claim to performance may be treated as his property. hegel also explains contract in terms of property, treating a promise as a disposition of one's substance. hence in his view the so-called abstract promise is a mere subjective qualification of one's will which he is at liberty to change. this theory and the foregoing assume the roman law or the older law of continental europe, and speak from the reaction from natural law which in england at the same time was overruling the liberal doctrines of lord mansfield. later metaphysical jurists rely upon the idea of personality. the romanist thinks of a legal transaction as a willing of some change in a person's sphere of rights to which the law, carrying out his will, gives the intended effect. if the transaction is executed, revocation would involve aggression upon the substance of another. if it is executory, however, why should the declared intent that the change take place in the future be executed by law despite the altered will of the promisor? some say that this should be done where there is a joint will from which only joint action may recede. where the parties have come to an agreement, where their wills have been at one, the law is to give effect to this joint will as a sort of vindication of personality. it is evident, however, that this explanation assumes the will theory, the subjective theory of legal transactions. if we start from the objective theory it breaks down. take for instance the case of an offer, which a reasonable man would understand in a given way, accepted by the offeree in that understanding when the offerer really meant something else. or take the case of an offer wrongly transmitted by telegraph and accepted in good faith as it is transmitted. here there is no community of will and yet the law may well hold, as we do in america, in both cases, that there is a contract. no metaphysical theory has prevailed to prevent the steady march of the law and of juristic thought in the direction of an objective doctrine of legal transactions. nowhere, indeed, has the deductive method broken down so completely as in the attempt to deduce principles upon which contracts are to be enforced. later in the nineteenth century men came to think more about freedom of contract than about enforcement of promises when made. to spencer and the mechanical positivists, conceiving of law negatively as a system of hands off while men do things, rather than as a system of ordering to prevent friction and waste so that they may do things, the important institution was a right of free exchange and free contract, deduced from the law of equal freedom as a sort of freedom of economic motion and locomotion. justice required that each individual be at liberty to make free use of his natural powers in bargains and exchanges and promises except as he interfered with like action on the part of his fellow men, or with some other of their natural rights. whether all such transactions should be enforced against him or only some, and if the latter, which, are questions belonging to an affirmative rather than to a negative science of law. historical jurists accepted the will theory and have been its leading advocates in modern times. they saw that the whole course of legal history had been one of wider recognition and more effective enforcement of promises. those who accepted the ethical idealistic interpretation of legal history could see freedom as an ethical idea realizing itself in a larger freedom of self-assertion and self-determination through promises and agreements and a wider giving effect to the will so asserted and determined. for the most part they wrote on the continent where the field of legally enforceable promises had ceased to be bounded by a narrow fence of roman historical categories. thus they had no call to rationalize dogmas of not enforcing promises made as business transactions. those who accepted the political interpretation saw freedom as a civil or political idea realizing itself in a progress from _status_ to contract in which men's duties and liabilities came more and more to flow from willed action instead of from the accident of social position recognized by law. the english historical jurists might well have asked how far english rules as to consideration were consonant with the implications of such a theory, and whether they must not be expected to give way as the idea unfolded more completely in experience of popular action and judicial decision. but the leader of this school was not a common-law lawyer and the american historical jurists devoted their energies to devising a historical-analytical theory of consideration rather than to the wider question of what promises should be enforced and why. here as in other places the historical jurist and the utilitarian were in agreement as to results although they differed widely as to the mode of reaching them. the former saw in contract a realization of the idea of liberty. the latter saw in it a means of promoting that maximum of individual free self-assertion which he took to be human happiness. hence the former called for freedom of contract and should have called for wide general enforcement of promises. the latter held to a doctrine of unshackling men and allowing them to act as freely as possible, which involved the complementary position of extending the sphere and enforcing the obligation of contract. the difference between these ways of thinking and those of the end of the eighteenth century is brought out if we compare blackstone ( ) with a dictum of sir george jessel a century later ( ). the former says that the public is "in nothing so essentially interested as in securing to every individual his private rights." the latter, discussing a question of what agreements are against public policy and therefore unenforceable, says: "if there is one thing more than another which public policy requires it is that men of full age and competent understanding shall have the utmost liberty of contracting and that such contracts shall be enforced by courts of justice." but the utilitarians put the emphasis upon the first, the negative, rather than upon the second, the affirmative, part of this twofold program. this is true also of the historical jurists and of the positivists. the english trader and entrepreneur was not seeking for legal instruments. he could work passably with those which the law furnished if the law would but let him. what he sought was to be free from legal shackles which had come down from a society of a different nature organized on a different basis and with other ends. hence juristic thought addressed itself to this for a season rather than to the doctrine of consideration and the reason for non-enforcement of deliberate promises where not put in the form of bargains. no one of the four theories of enforcing promises which are current today is adequate to cover the whole legal recognition and enforcement of them as the law actually exists. putting them in the order of their currency, we may call them ( ) the will theory, ( ) the bargain theory, ( ) the equivalent theory, ( ) the injurious-reliance theory. that is, promises are enforced as a giving effect to the will of those who agree, or to the extent that they are bargains or parts of bargains, or where an equivalent for them has been rendered, or where they have been relied on by the promisee to his injury, according to the theory chosen. the first is the prevailing theory among civilians. but it must give way before the onward march of the objective theory of legal transactions and is already fighting a rear-guard action. in our law it is impossible. we do not give effect to promises on the basis of the will of the promisor, although our courts of equity have shown some tendency to move in that direction. the attempt in the nineteenth century to romanize our theories of liability involved a romanized will-theory of contract. but no one who looks beneath the surface of our law reports can doubt that the attempt has failed wholly. we no longer seek solutions on every side through a pedantic romanized law of bailments and in the law of bailments itself we are coming to talk in common-law terms of negligence in view of the circumstances and not in romanist terms of the willed standard of diligence and corresponding degrees of negligence. in america, at least, the objective theory of contract is orthodox and the leader of english analytical jurists of the present generation has expounded it zealously. courts of equity, which inherit modes of thought from the time when the chancellor searched the conscience of a defendant by an examination under oath, and believed he could reach subjective data that were beyond the cognizance of a jury, are the last stronghold of the exotic subjective theory in the common law. probably the bargain theory is the one most current in common-law thinking. it is a development of the equivalent theory. it will not cover formal contracts but under its influence the formal contracts have been slowly giving way. the seal "imports" a consideration. legislation has abolished it in many jurisdictions and often it does no more than establish a bargain _prima facie_, subject to proof that there was in fact no consideration. courts of equity require a common-law consideration, at least on the face of their general rule, before they will enforce a sealed contract. also the formal contracts of the law merchant are subject to defeat by showing there was no consideration, except when in the hands of holders for value without notice. here, however, consideration is used in the sense of equivalent, to the extent of admitting a "past consideration," and the bargain theory, appropriate to simple contracts, is not of entire application. on the other hand the extent to which courts today are straining to get away from the bargain theory and enforce promises which are not bargains and cannot be stated as such is significant. subscription contracts, gratuitous promises afterwards acted on, promises based on moral obligations, new promises where a debt has been barred by limitation or bankruptcy or the like, the torturing of gifts into contracts by equity so as to enforce _pacta donationis_ specifically in spite of the rule that equity will not aid a volunteer, the enforcement of gratuitous declarations of trust, specific enforcement of options under seal without consideration, specific performance by way of reformation in case of security to a creditor or settlement on a wife or provision for a child, voluntary relinquishment of a defense by a surety and other cases of "waiver," release by mere acknowledgment in some states, enforcement of gifts by way of reformation against the heir of a donor, "mandates" where there is no _res_, and stipulations of parties and their counsel as to the conduct of and proceedings in litigation--all these make up a formidable catalogue of exceptional or anomalous cases with which the advocate of the bargain theory must struggle. when one adds enforcement of promises at suit of third-party beneficiaries, which is making headway the world over, and enforcement of promises where the consideration moves from a third person, which has strong advocates in america and is likely to be used to meet the exigencies of doing business through letters of credit, one can but see that lord mansfield's proposition that no promise made as a business transaction can be _nudum pactum_ is nearer realization than we had supposed. yet the equivalent theory and the injurious-reliance theory are even less adequate to explain the actual law. the equivalent theory must wrestle at the outset with the doctrine that inadequacy of consideration is immaterial so that the equivalency is often pickwickian. hegel could argue for it on the basis of the roman _laesio enormis_. but when a court of equity is willing to uphold a sale of property worth $ , for $ , even a dogmatic fiction is strained. moreover the catalogue of anomalies with which the bargain theory must wrestle contains more than one difficulty for the adherent of either theory. stipulations in the course of litigation do not need equivalents nor do they need to be acted on in order to be enforceable. a release by mere acknowledgment, when good at all, needs no equivalent and need not be acted on. waiver by a surety of the defense of release by giving time to the principal needs no element of consideration nor of estoppel. defectively executed securities, settlements and advancements need no equivalent and need not be acted on in order to be reformed. options under seal are held open in equity on the basis of the seal alone. a gratuitously declared trust creates an obligation cognizable in equity without more. in truth the situation in our law is becoming much the same as that in the maturity of roman law and for the same reason. we have three main categories. first, there are formal contracts, including sealed instruments, recognizances, and the formal contracts of the law merchant, in which latter the form consists in the use of certain words, requirements as to sum certain, payment at all events, and certainty as to time. second, there are the real contracts of debt and bailment. third, there are simple contracts, without form and upon consideration. the latter is the growing category although the formal contracts of the law merchant have shown some power of growth and the business world has been trying to add thereto letters of credit using the formal words "confirmed" or "irrevocable." but the category of enforceable simple promises defies systematic treatment as obstinately as the actionable pacts in roman law. successive additions at different times in the endeavor of courts to hold men to their undertakings, in view of the social interest in the security of transactions and the jural postulates of the civilization of the day, proceed on all manner of different theories and different analogies and agree only in the result--that a man's word in the course of business should be as good as his bond and that his fellow men must be able to rely on the one equally with the other if our economic order is to function efficiently. it is evident that many courts consciously or subconsciously sympathize with lord dunedin's feeling that one can have no liking for a doctrine which enables a promisor to snap his fingers at a promise deliberately made, fair in itself, and in which the person seeking to enforce it has a legitimate interest according to the ordinary understanding of upright men in the community. it is significant that although we have been theorizing about consideration for four centuries, our texts have not agreed upon a formula of consideration, much less our courts upon any consistent scheme of what is consideration and what is not. it means one thing--we are not agreed exactly what--in the law of simple contracts, another in the law of negotiable instruments, another in conveyancing under the statute of uses and still another thing--no one knows exactly what--in many cases in equity. letters of credit afford a striking illustration of the ill-adaptation of our american common law of contract to the needs of modern business in an urban society of highly complex economic organization. well known abroad and worked out consistently on general theories in the commercial law of continental europe, these instruments came into use in this country on a large scale suddenly during the war. there was no settled theory with respect to them in our books and the decisions warranted four or five views leading to divergent results in matters of vital moment to the business man who acted on them. characteristically the business world set out to make of them formal contracts of the law merchant by the use of certain distinctive words which gave the instruments character and made their nature clear to those who inspected them anywhere in the world. but for a season our category of mercantile specialties had ceased to admit of growth and the doctrine of consideration with its uncertain lines stood in the way of many things which the exigencies of business called for and business men found themselves doing in reliance on each other's business honor and the banker's jealousy of his business credit, with or without assistance from the law. certainly no one would say that such a situation bears witness to wise social engineering in an economically organized society resting on credit. two circumstances operate to keep the requirement of consideration alive in our law of simple contract. one is the professional feeling that the common law is the legal order of nature, that its doctrines in an idealized form are natural law and that its actual rules are declaratory of natural law. this mode of thinking is to be found in all professions and is a result of habitual application of the rules of an art until they are taken for granted. in law it is fortified by the theory of natural law which has governed in our elementary books since blackstone, was taught to all lawyers until the present century, and is assumed in much of our judicial decision. later it was strengthened by the theories of the historical school which ruled in our law schools in the last quarter of the nineteenth century and taught us to think that growth must inevitably follow lines which might be discovered in the year books. these things co-operated with the temper of the last century and the instinctive aversion of the lawyer to change, lest in some unperceived way a door be opened to magisterial caprice or to the personal equation of the judge. thus some thought of consideration, whatever it was, as inherent in the very idea of enforceable promises. others assumed that it was a historically developed principle by which the future evolution of the law of contracts must be governed. many others simply thought that it was dangerous to talk of change. and yet change has gone on rapidly, if subconsciously, until the present confused mass of unsystematized and unsystematizable rules has resulted. the second circumstance operating to keep alive the requirement of consideration is a more legitimate factor. nowhere could psychology render more service to jurisprudence than in giving us a psychological theory of _nuda pacta_. for there is something more than the fetish of a traditional latin phrase with the hallmark of roman legal science behind our reluctance to enforce all deliberate promises simply as such. it should be compared with the reluctance of courts to apply the ordinary principle of negligence to negligent speech, with the doctrine as to seller's talk, with the limitations upon liability for oral defamation and with many things of the sort throughout our law. all of these proceed partly from the attitude of the strict law in which our legal institutions first took shape. but they have persisted because of a feeling that "talk is cheap," that much of what men say is not to be taken at face value and that more will be sacrificed than gained if all oral speech is taken seriously and the principles applied by the law to other forms of conduct are applied rigorously thereto. this is what was meant when the writers on natural law said that promises often proceeded more from "ostentation" than from a real intention to assume a binding relation. but this feeling may be carried too far. undoubtedly it has been carried too far in the analogous cases above mentioned. the rule of _derry_ v. _peek_ goes much beyond what is needed to secure reasonable limits for human garrulousness. the standard of negligence, taking into account the fact of oral speech and the character and circumstances of the speech in the particular case, would amply secure individual free utterance. so also the doctrine that one might not rely on another's oral representation in the course of a business transaction if he could ascertain the facts by diligence went much too far and has had to be restricted. likewise we have had to extend liability for oral defamation. accordingly because men are prone to overmuch talk it does not follow that promises made by business men in business dealings or by others as business transactions are in any wise likely to proceed from "ostentation" or that we should hesitate to make them as binding in law as they are in business morals. without accepting the will theory, may we not take a suggestion from it and enforce those promises which a reasonable man in the position of the promisee would believe to have been made deliberately with intent to assume a binding relation? the general security is more easily and effectively guarded against fraud by requirements of proof after the manner of the statute of frauds than by requirements of consideration which is as easy to establish by doubtful evidence as the promise itself. this has been demonstrated abundantly by experience of suits in equity to enforce oral contracts taken out of the statute of frauds by great hardship and part performance. revived philosophical jurisprudence has its first and perhaps its greatest opportunity in the anglo-american law of contracts. the constantly increasing list of theoretical anomalies shows that analysis and restatement can avail us no longer. indeed the lucid statement of williston but emphasizes the inadequacy of analysis even when eked out by choice from among competing views and analytical restatements of judicial dogma in the light of results. projects for "restatement of the law" are in the air. but a restatement of what has never been stated is an impossibility and as yet there is no authoritative statement of what the law of consideration is. nothing could be gained by a statement of it with all its imperfections on its head and any consistent analytical statement would require the undoing of much that the judges have done quietly beneath the surface for making promises more widely enforceable. given an attractive philosophical theory of enforcement of promises, our courts in a new period of growth will begin to shape the law thereby and judicial empiricism and legal reason will bring about a workable system along new lines. the possibilities involved may be measured if we compare our old law of torts with its hard and fast series of nominate wrongs, its distinctions growing out of procedural requirements of trespass and trespass on the case and its crude idea of liability, flowing solely from causation, with the law of torts at the end of the nineteenth century after it had been molded by the theory of liability as a corollary of fault. even if we must discard the conception that tort liability may flow only from fault, the generalization did a service of the first magnitude not only to legal theory but to the actual administration of justice. no less service will be rendered by the twentieth-century philosophical theory, whatever it is, which puts the jural postulate of civilized society in our day and place with respect to good faith, and its corollary as to promises, in acceptable form, and furnishes jurist and judge and lawmaker with a logical critique, a workable measure of decision and an ideal of what the law seeks to do, whereby to carry forward the process of enlarging the domain of legally enforceable promises and thus enlarging on this side the domain of legal satisfaction of human claims. bibliography lecture i plato (b. c. - ), republic. ----, laws. translations in jowett's plato. the translation of the republic is published separately. pseudo-plato, minos. now generally considered not to be a genuine work of plato's and variously dated from as early as c. b. c. to as late as c. b. c. there is a convenient translation in bohn's libraries. aristotle (b. c. - ), nicomachean ethics. convenient translation by browne in bohn's libraries. ----, politics. translation by jowett should be used. reference may be made to berolzheimer, system der rechts- und wirthschaftsphilosophie, ii, §§ - (world's legal philosophies, - ); hildenbrand, geschichte und system der rechts- und staatsphilosophie, §§ - . cicero (b. c. - ), de legibus. reference may be made to berolzheimer, system der rechts- und wirthschaftsphilosophie, ii, §§ - (world's legal philosophies, - ); hildenbrand, geschichte und system der rechts- und staatsphilosophie, §§ - , - ; voigt, das ius naturale, aequum et bonum und ius gentium der römer, i, §§ , - , - , - . thomas aquinas ( or - ), summa theologiae. convenient translation of the parts relating to law in aquinas ethicus. reference may be made to berolzheimer, system der rechts- und wirthschaftsphilosophie, ii, §§ - (world's legal philosophies, - ). oldendorp, iuris naturalis gentium et ciuilis [greek: eisagôgê] ( ). hemmingius (henemingsen) de iure naturale apodictica methodus ( ). winckler, principiorum iuris libri v ( ). these are collected conveniently in kaltenborn, die vorläufer des hugo grotius. reference may be made to berolzheimer, system der rechts- und wirthschaftsphilosophie, ii, § (world's legal philosophies, - ); hinrichs, geschichte der rechts- und staatsprincipien seit der reformation, i, - ; gierke, johannes althusius, ed., - , - , . soto, de justitia et iure ( ). suarez, de legibus ac deo legislatore ( ). reference may be made to figgis, studies of political thought from gerson to grotius, lect. v. grotius, de iure belli et pacis ( ). whewell's edition with an abridged translation is convenient. pufendorf, de jure naturae et gentium ( ). kennet's translation ( ) may be found in several editions. burlamaqui, principes du droit naturel ( ). nugent's translation is convenient. wolff, institutiones juris naturae et gentium ( ). rutherforth, institutes of natural law ( - ). vattel, le droit des gens, préliminaires ( ). there are many translations of vattel. rousseau, contrat social ( ). tozer's translation is convenient. blackstone, commentaries on the laws of england, introduction, sect. ii ( ). reference may be made to berolzheimer, system der rechts- und wirthschaftsphilosophie, ii, §§ - , (world's legal philosophies, - , - ); hinrichs, geschichte der rechts- und staatsprincipien seit der reformation, i, - , ii, iii, - ; korkunov, general theory of law, transl. by hastings, § ; charmont, la renaissance du droit naturel, - . hobbes, leviathan ( ). spinoza, ethica ( ). ----, tractatus theologico-politicas ( ). elwes' translation of the two last in bohn's libraries must be used with caution. bentham, principles of morals and legislation ( ). a convenient reprint is published by the clarendon press. ----, theory of legislation. (originally published in french, ). translated by hildreth ( ), and in many editions. mill, on liberty ( ). courtney's edition ( ) is convenient. reference may be made to duff, spinoza's political and ethical philosophy; berolzheimer, system der rechts- und wirthschaftsphilosophie, ii, § (world's legal philosophies, - ); dicey, law and public opinion in england, lect. ; albee, history of english utilitarianism; stephen, the english utilitarians; solari, l'idea individuale e l'idea sociale nel diritto privato, §§ - . kant, metaphysische anfangsgründe der rechtslehre ( ed. ). translated by hastie as "kant's philosophy of law" ( ). fichte, grundlage des naturrechts ( , new ed. by medicus, ). translated by kroeger as "fichte's science of rights" ( ). hegel, grundlinien der philosophie des rechts ( ), ed. by gans ( ), new ed. by lasson ( ). translated by dyde as "hegel's philosophy of right" ( ). this translation must be used cautiously. krause, abriss des systemes der philosophie des rechtes ( ). ahrens, cours de droit naturel ( , ed. ). twenty-four editions in seven languages. the german th edition (naturrecht, - ) contains important matter not in the french editions. green, principles of political obligation. lectures delivered in - . reprinted from his complete works ( ). lorimer, institutes of law ( ed. ). lasson, lehrbuch der rechtsphilosophie ( ). miller, lectures on the philosophy of law ( ). boistel, cours de philosophie du droit ( , new ed. ). herkless, lectures on jurisprudence ( ). brown, the underlying principles of modern legislation ( ). mention may be made of beaussire, les principes du droit ( ); beudant, le droit individuel et l'état ( ); carle, la vita del diritto ( ed. ); dahn, rechtsphilosophische studien ( ); giner y calderon, filosofia del derecho ( ); harms, begriff, formen und grundlegung der rechtsphilosophie ( ); hennebicq, philosophie de droit et droit naturel ( ); herbart, analytische beleuchtung des naturrechts und der moral ( ); jouffroy, cours de droit naturel ( ed. ); kirchmann, grundbegriffe des rechts und der moral ( ed. ); krause, das system der rechtsphilosophie (posthumous, ed. by röder, ); miraglia, filosofia del diritto ( ed. , transl. in modern legal philosophy series, ); röder, grundzüge des naturrechts oder der rechtsphilosophie ( ed. ); rosmini, filosofia del diritto ( ed. ); rothe, traité de droit naturel, théorique et appliqué ( ); schuppe, grundzüge der ethik und rechtsphilosophie ( ); stahl, philosophie des rechts ( ed. ); tissot, introduction historique et philosophique à l'étude du droit ( ); trendelenburg, naturrecht auf dem grunde der ethik ( ); vareilles-sommières, les principes fondamentaux du droit ( ); wallaschek, studien zur rechtsphilosophie ( ). reference may be made to gray, nature and sources of the law, §§ - ; bryce, studies in history and jurisprudence, essay ; pollock, essays in jurisprudence and ethics, - ; korkunov, general theory of law, translated by hastings, § ; bergbohm, jurisprudenz und rechtsphilosophie, §§ - ; pound, the scope and purpose of sociological jurisprudence, harvard law rev., ; pound, the philosophy of law in america, archiv für rechts- und wirthschaftsphilosophie, vii, , . jhering, der zweck im recht ( - , ed. ). the first volume is translated by husik under the title "law as a means to an end" ( ). jhering, scherz und ernst in die jurisprudenz ( , ed. ). reference may be made to the appendices to jhering, law as a means to an end, transl. by husik; berolzheimer, system der rechts- und wirthschaftsphilosophie, ii, § (world's legal philosophies, - ); korkunov, general theory of law, translated by hastings, §§ - ; tanon, l'évolution du droit et la conscience sociale ( ed. ), pt. i, ch. . stammler, ueber die methode der geschichtlichen rechtstheorie ( ). ----, wirthschaft und recht ( , ed. ). ----, die gesetzmässigkeit in rechtsordnung und volkswirthschaft ( ). ----, lehre von dem rechtigen rechte ( ). ----, systematische theorie der rechtswissenschaft ( ). ----, rechts- und staatstheorien der neuzeit ( ). del vecchio, the formal bases of law, translated by lisle ( ). a translation of i presupposti filosofici della nozione del diritto ( ), il concetto del diritto ( , reprinted ), il concetto della natura e il principio del diritto ( ). for critiques of stammler, see berolzheimer, system der rechts- und wirthschaftsphilosophie, ii, § (world's legal philosophies, - ); kantorowicz, zur lehre vom richtigen recht; croce, historical materialism and the economics of karl marx, ch. ; geny, science et technique en droit privé positif, ii, - ; binder, rechtsbegriff und rechtsidee ( ); binder, kritische und metaphysische rechtsphilosophie, archiv für rechts- und wirthschaftsphilosophie, ix, , ; vinogradoff, common sense in law, ch. . kohler, rechtsphilosophie und universalrechtsgeschichte, in holtzendorff, enzyklopädie der rechtswissenschaft, i ( ed. , ed. ). (not in prior editions.) kohler, lehrbuch der rechtsphilosophie ( , ed. ). translated by albrecht as "philosophy of law" ( ). kohler, moderne rechtsprobleme ( , ed. ). berolzheimer, system der rechts-und wirthschaftsphilosophie ( - ). vol. ii, history of juristic thought, translated by jastrow (somewhat abridged) under the title "the world's legal philosophies" ( ), vol. iii, general system of legal and economic philosophy, vol. iv, philosophy of interests of substance, vol. v, philosophy of criminal law, are important for our purposes. see also berolzheimer, rechtsphilosophische studien ( ); barillari, diritto e filosofia ( - ); kohler, das recht ( ); kohler, recht und persönlichkeit in die kultur der gegenwart ( ). radbruch, grundzüge der rechtsphilosophie ( ). miceli, principii di filosofia del diritto ( ). tourtoulon, principes philosophiques de l'histoire du droit ( - ). demogue, notions fondamentales du droit privé ( ). geny, méthode d'interprétation et sources en droit privé positif ( , ed. ). a book of the first importance. ----, science et technique en droit privé positif ( ). duguit, l'état, le droit objectif et la loi positive ( ). ----, le droit social, le droit individuel et la transformation de l'état ( ed. ). ----, les transformations générales du droit privé ( ). translated in continental legal history series, vol. xi, ch. . ----, law and the state ( ). reference may be made to modern french legal philosophy ( ) in the modern legal philosophy series; jung, das problem des natürlichen rechts ( ). see also boucaud, qu'est-ce que le droit naturel ( ); charmont, la renaissance du droit naturel ( ); charmont, le droit et l'esprit democratique ( ); djuvara, le fondement du phénomène juridique ( ); fabreguettes, la logique judiciaire et l'art de juger ( ); leroy, la loi ( ). compare cathrein, recht, naturrecht und positives recht ( ). see also cohen, jus naturale redivivum, philosophical rev., xxv, ( ). spencer, justice ( ). see also anzilotti, la filosofia del diritto e la sociologia ( ); brugi, introduzione enciclopedica alle scienze giuridiche e sociale ( ed. , ed. ); cosentini, filosofia del diritto e sociologia ( ); cosentini, criticismo e positivismo nella filosofia del diritto ( ); daguanno, la genesi e l'evoluzione del diritto civile ( ); eleutheropoulos, rechtsphilosophie, sociologie und politik ( ); fragapane, obbietto e limiti della filosofia del diritto ( ); levi, il diritto naturale nella filosofia di r. ardigo ( ); nardi greco, sociologia giuridica ( ); porchat, sociologia e direito ( ); ratto, sociologia e filosofia del diritto ( ); vadale papale, la filosofia del diritto a base sociologica ( ); vander eycken, méthode positive de l'interprétation juridique ( ). post, der ursprung des rechts ( ). ----, bausteine für eine allgemeine rechtswissenschaft ( ). ----, die grundlagen des rechts und die grundzüge seiner entwickelungsgeschichte ( ). kuhlenbeck, natürliche grundlagen des rechts ( ). a discussion of fundamental problems of jurisprudence from the darwinian standpoint. richard, origine de l'idée de droit ( ). vaccaro, les bases sociologiques du droit et de l'état ( ). translation of le basi del diritto e dello stato ( ). a theory of law as the outcome of class struggles. for critiques of the foregoing, see tanon, l'évolution du droit et la conscience sociale ( ed. ); tourtoulon, principes philosophiques de l'histoire du droit ( - ); charmont, la renaissance du droit naturel ( ). tarde, les transformations du droit ( ed. ). first published in . vanni, lezioni di filosofia del diritto ( ed. ). first published in - . see also bonucci, l'orientazione psicologica dell' etica e della filosofia del diritto ( ); bozi, die weltanschauung der jurisprudenz ( , ed. ); bozi, die schule der jurisprudenz ( ); cruet, la vie du droit et l'impuissance des lois ( ); grasserie, principes sociologiques du droit civil ( ); jellinek, die sozialethische bedeutung von recht, unrecht und strafe ( ed. , st ed. ); lagorgette, le fondement du droit ( ); miceli, le fonti del diritto dal punto di vista psichico-sociale ( ); miceli, lezioni di filosofia del diritto ( ). holmes, the path of the law, harvard law review, ( ); collected papers, - . ehrlich, soziologie und jurisprudenz ( ). wurzel, das juristische denken, - ( ). translated in the science of legal method (modern legal philosophy series, vol. , - ). gnaeus flavius (kantorowicz), der kampf um die rechtswissenschaft ( ). kantorowicz, rechtswissenschaft und soziologie ( ). kelsen, ueber grenzen zwischen juristischer und soziologischer methode ( ). brugeilles, le droit et la sociologie ( ). rolin, prolégomènes à la science du droit ( ). ehrlich, erforschung des lebenden rechts, in schmoller's jahrbuch für gesetzgebung, xxv, ( ). ----, grundlegung der soziologie des rechts ( ). ----, das lebende recht der völker der bukowina ( ). page, professor ehrlich's czernowitz seminar of living law, proceedings of fourteenth annual meeting of association of american law schools, ( ). cosentini, filosofia del diritto ( ). ehrlich, die juristische logik ( ). kornfeld, allgemeine rechtslehre und jurisprudenz ( ). see also cosentini, la réforme de la législation civile ( ) (revised and augmented translation of la riforma della legislazione civile, ); kornfeld, soziale machtverhältnisse, grundzüge einer allgemeinen lehre vom positiven rechte auf soziologischer grundlage ( ); levi, la société et l'ordre juridique ( ); levi, contributi ad una teoria filosofica dell' ordine giuridico ( ). lecture ii miller, the data of jurisprudence, ch. . salmond, jurisprudence, § . pulszky, theory of law and civil society, § . bentham, theory of legislation, principles of the civil code, pt. i, ch. - . holland, jurisprudence, ch. . kant, philosophy of law (hastie's translation) - . spencer, justice, ch. - . willoughby, social justice, ch. . paulsen, ethics (thilly's translation), ch. . gareis, vom begriff gerechtigkeit. demogue, notions fondamentales de droit privé, - . picard, le droit pur, liv. . pound, the end of law as developed in legal rules and doctrines, harvard law review, . holmes, common law, lect. . post, ethnologische jurisprudenz, ii, §§ - . fehr, hammurapi und das salische recht, - . ames, law and morals, harvard law review, . voigt, das ius naturale, aequum et bonum und ius gentium der römer, i, - . stephen, liberty, equality, fraternity, - . maine, early history of institutions (american ed.), - . ritchie, natural rights, ch. . demogue, notions fondamentales de droit privé, - , - . jhering, scherz und ernst in die jurisprudenz ( ed.), - . pound, liberty of contract, yale law journal, . ----, the end of law as developed in juristic thought, harvard law review, , harvard law review, . berolzheimer, the world's legal philosophies, §§ - . figgis, studies of political thought from gerson to grotius, lect. . berolzheimer, the world's legal philosophies, §§ - . hobbes, leviathan, ch. . berolzheimer, the world's legal philosophies, § . korkunov, general theory of law (translated by hastings), § . ritchie, natural rights, ch. . charmont, la renaissance de droit naturel, - . berolzheimer, the world's legal philosophies, §§ - . korkunov, general theory of law (translated by hastings), - . gray, nature and sources of the law, § . berolzheimer, the world's legal philosophies, § . mill, on liberty, ch. . dicey, law and public opinion in england, lect. . berolzheimer, the world's legal philosophies, §§ - , . stammler, wesen des rechts und der rechtswissenschaft (in systematische rechtswissenschaft, i-lix). kohler, rechtsphilosophie und universalrechtsgeschichte, §§ - , - , . lecture iii geny, méthode d'interprétation et sources en droit privé positif ( ed. ). vander eycken, méthode positive de l'interprétation juridique ( ). mallieux, l'exégèse des codes ( ). ransson, essai sur l'art de juger ( ). see wigmore, problems of law, - ; pound, the enforcement of law, green bag, ; pound, courts and legislation, american political science review, - . science of legal method, modern legal philosophy series, vol. ( ). gnaeus flavius (kantorowicz), der kampf um die rechtswissenschaft ( ). fuchs, recht und wahrheit in unserer heutigen justiz ( ). ----, die gemeinschädlichkeit der konstruktiven jurisprudenz ( ). oertmann, gesetzeszwang und richterfreiheit ( ). rumpf, gesetz und richter ( ). brütt, die kunst der rechtsanwendung ( ). gmelin, quousque? beiträge zur soziologischen rechtsfindung ( ). reichel, gesetz und richterspruch ( ). jellinek, gesetz, gesetzesanwendung und zweckmässigkeitserwägung ( ). kübl, das rechtsgefühl ( ). heck, gesetzesauslegung und interessenjurisprudenz ( ). stampe, grundriss der wertbewegungslehre ( , ). see kohler, lehrbuch des bürgerlichen rechts, i, §§ - ; austin, jurisprudence ( ed.), - ; pound, spurious interpretation, columbia law review, ; gray, nature and sources of the law, §§ - ; somlo, juristische grundlehre, §§ - ; stammler, rechts- und staatstheorien der neuzeit, § ; pound, introduction to english translation of saleilles, individualization of punishment; saleilles, individualization of punishment, translated by jastrow, ch. ; pound, administrative applications of legal standards, rep. american bar assn., ; laun, das freie ermessen und seine grenzen ( ). lecture iv holmes, collected papers, - ( ). baty, vicarious liability ( ). hasse, die culpa des römischen rechts ( ed. ). jhering, der schuldmoment im römischen privatrecht ( ). rümelin, schadensersatz ohne verschulden ( ). triandafil, l'idée de faute et l'idée de risque comme fondement de la responsabilité ( ). see binding, die normen und ihre uebertretung, i, §§ - ; meumann, prolegomena zu einem system des vermögensrechts, ff. ( ); duguit in progress of continental law in the nineteenth century (continental legal history series, vol. xi), - ; geny, risque et responsabilité, revue trimestrielle de droit civil, i, ; rolin, responsabilité sans faute, revue de droit international et legislation comparée, xxxviii, ; demogue, fault, risk and apportionment of risk in responsibility, illinois law review, ; thayer, liability without fault, harvard law review, ; smith, tort and absolute liability, harvard law review, , , ; bohlen, the rule in rylands v. fletcher, university of pennsylvania law review, , , ; isaacs, fault and liability, harvard law review, . lecture v ely, property and contract in their relation to the distribution of wealth, i, - , - , - , ii, - . hobson and others, property, its rights and duties, historically, philosophically and religiously considered ( ed.), essays - , - . green, principles of political obligation, §§ - . miller, lectures on the philosophy of law, lect. . herkless, jurisprudence, ch. . russell, social reconstruction, ch. . spencer, justice, ch. . kohler, philosophy of law, albrecht's translation, - . maine, ancient law, ch. . ----, early history of institutions (american ed.), - . ----, early law and custom (american ed.), - . duguit, in progress of the law in the nineteenth century (continental legal history series, vol. xi), - . wagner, volkswirthschaft und recht, besonders vermögensrecht ( ). perreau, cours d'économie politique, ii, §§ - ( ). de la grasserie, les principes sociologiques du droit civil, ch. . cosentini, la réforme de la législation civile, - ( ). fouillée, la propriété sociale et la democratie ( ). landry, l'utilité sociale de la propriété individuelle ( ). meyer, l'utilité publique et la propriété privée ( ). thézard, la propriété individuelle: Étude de philosophie historique du droit ( ). thomas, l'utilité publique et la propriété privée ( ). berolzheimer, system der rechts- und wirthschaftsphilosophie, iv, §§ - . felix, entwickelungsgeschichte des eigenthums ( - ). karner, die sociale funktion der rechtsinstitute, besonders des eigenthums ( ). conti, la proprietà fondiaria nel passato e nel presente ( ). cosentini, filosofia del diritto, - ( ). fadda, teoria della proprietà ( ). labriola, sul fondamento della proprietà privata ( ). loria, la proprietà fondiaria e la questione sociale ( ). piccione, concetto positivo del diritto di proprietà ( ). velardita, la proprietà secondo la sociologia ( ). grotius, de jure belli et pacis, ii, , - , ii, , and , § . pufendorf, de jure naturae et gentium, iv, , §§ - , . locke, on government, ch. . blackstone, commentaries, ii, - . kant, metaphysische anfangsgründe der rechtslehre ( ed.), §§ , - , , , - . hegel, grundlinien der philosophie des rechts, §§ , , . lorimer, institutes of law ( ed.), ff. lecture vi ely, property and contract in their relation to the distribution of wealth, ii, - . amos, systematic view of the science of jurisprudence, ch. . herkless, jurisprudence, ch. . kohler, philosophy of law, albrecht's translation, - . de la grasserie, les principes sociologiques du droit civil, ch. . duguit, in progress of the law in the nineteenth century (continental legal history series, vol. xi), - . kant, metaphysische anfangsgründe der rechtslehre ( ed.), §§ - . hegel, grundlinien der philosophie des rechts, §§ - . richte, grundlage des naturrechts, §§ - . williston, contracts, i, §§ - . ames, the history of assumpsit, harvard law review, , . ----, two theories of consideration, harvard law review, ; harvard law review, . beale, notes on consideration, harvard law review, . langdell, mutual promises as a consideration for each other, harvard law review, . pollock, afterthoughts on consideration, law quarterly review, . hershey, letters of credit, harvard law review, . lorenzen, causa and consideration in the law of contracts, yale law journal, . pound, consideration in equity, illinois law review, (wigmore celebration essays, ). index abstract promise , acquisition by creation by discovery , by occupation , civil - derivative in roman law - kant's theory of - natural things not subject to act, as basis of liability acting at one's peril , action _de deiectis et diffusis_ _de recepto_ _in factum_ _in personam_ _noxal_ adjudication administrative element in - steps in administration adjustment with law administrative tribunals , ames, james barr analogy, reasoning by analysis analytical application - reasoning theory - anglo-saxon law application of law ff. agencies of individualizing - analytical - equitable , - historical - latitude of , margin of rules theories of - aquilian _culpa_ , , aquinas, st. thomas - aristotle , , , , on application of law - threefold classification of governmental powers austin, john - , bacon bailment , , bartolus baty, t. bentham , bergson bills of rights , , binding blackstone , , , , buckland, w. w. callings, restrictions on engaging in camden, lord canon law , carrier, liability of casuists catholic jurist-theologians _causa_ _civilis_ , , _debendi_ , , causation , certainty - change, reconciliation with stability , cicero , , , civilization, as a measure of value jural postulates of, , - , civil law, - classes, social, codification, - , - coke, sir edward, commentators, the, common law, the, and legislation, - professional view as to, types of delictal liability in, community property, composition, , - compromises, - conceptions, legal, conditions "implied in law", conduct, application of law to, - expectations arising from, consciousness, as starting point, consideration, , - , , , - , - adequacy of, - circumstances keeping doctrine alive, - in equity, - , meanings of, - meritorious, contract analogy of real transactions, anglo-american law of, - anomalies in law of, bargain theory of, , - by estoppel, categories of, civil-law enforcement of, - common-law categories of, - common-law enforcement of, consensual, equivalent theory of, - , - , , - fichte's theory of, - formal, - hegel's theory of, historical background of law of, ff. historical category of, historical theory of, - injurious-reliance theory of, innominate, , kant's theory of, metaphysical theories of, - natural-law theory of, "natural principle of", - objective theory of, - oral, philosophy of, philosophical theories of, positive theory of, real, , religious origins of, - , roman categories of, , , , romanist theory of, - simple, specific enforcement of, - spencer's theory of, subjective theory of, theory of basis in personality, - theory of inherent moral force, - , third-party beneficiaries of, will theory of, - , - , - _corpus iuris canonici_, court and jury, courts, contest with crown, _culpa_, , abstract standard of, concrete standard of, contractual, delictal, culpability as basis of liability fiction of , custody - d'aguesseau debt , , defamation , delicts, equitable historical category of nominate , - , demosthenes _depositum_ derivative acquisition derry v. peek dicey, a. v. digest of justinian discovery , discretion , , margin of of the chancellor - relation of to rule , - dispensing power distributions, statute of division of labor , , doctor and student , doe, chief justice _dolus_ , , , _dominium_ , due care , standard of - duguit, l. , dumoulin dunedin, lord duress duties relational economic interpretation - , - eldon, lord empiricism, judicial , juristic end of law , - as a measure of value greek conception of - ideals of as basis of juristic theories - keeping the peace as - maximum individual self-assertion as - medieval conception of - nineteenth-century conception of - preserving social _status quo_ as - rise of new ideas as to - roman conception of - theories of - english juristic theory englishmen, common-law rights of , enterprises, conduct of - equality - equitable application of law , - equities equity , , , , , - , - , - , and natural law , , , , , of the tribunal provision for a child as consideration in , securing a creditor as consideration in settlement on a wife as consideration in , will not aid a volunteer ethical interpretation _familia_ fichte, theory of contract - fictions - , dogmatic , , of culpability - of negligence of representation , of undertaking _fiducia cum amico_ fifth amendment finding law , - form and intention - formal contracts, , , historical origin of, - formal undertaking, forms in primitive thinking, - formulas, elasticity of, fortescue, fourteenth amendment, freedom of contract, , , - freedom of industry, french civil code, , , law of delictal liability, - monarchy, legal theory under, functional attitude, generalizations, general security, , , - , , , , , , how infringed, germanic law, , , , , gifts, reformation of, gloss, the, glossators, good faith, , , , corollaries of, - gray, j. c., greek city, problem of order in, security of social institutions in, greek law, - , , greek philosophers, conception of the end of law, , - conception of the nature of law, conception of the general security, on subjects of litigation, , grotius, , - , hammurapi, hard bargains, hegel, , , theory of contract, theory of property, - heraditus, hindu law, - , - hippodamus, historical application of law, - historical categories, historical school, holmes, mr. justice, household, partition of, - husband and wife, matrimonial property regime, _hybris_, idealism, juridical, - , idealistic interpretation, _imperium_, "implied" undertakings, , individual free self-assertion, individualization, , - by juries, - in criminal procedure, in punitive justice, - judicial, - moral element in, of penal treatment, - individual life, inheritance, innkeeper, liability of, insult, intention, as source of liability, interdependence, interdicts, interests, - compromises of, - delimitation of, giving effect to, group, harmony of, individual, in promised advantages, intrinsic importance of, inventory of, of substance, , recognition of, , securing of , valuing of , - weighing of , interpretation - , fiction of - genuine , relation to law making jessel, sir george judicial, contrasted with administrative jural postulates - , , - , - , , , juridical idealism - , jurisconsults , - jurisprudence, problems of juristic theories, nature of jurists, metaphysical , search for the more inclusive order seventeenth and eighteenth-century - jurist-theologians spanish - , jury , - lawlessness of _jus_ _jus disponendi_ just, the, by nature or by convention , , , justice, aristotle on , definition of in the institutes executive idea of without law , justinian, institutes of - kant , , , theory of contract - theory of property - kenyon, lord kin organization _laesio enormis_ langdell, c. c. law, adjustment with administration and morals , , , , application of ff. as an aggregate of rules as a body of agreements as a body of commands as a body of divinely ordained rules as a keeping of the peace - as a reflection of divine reason as a system of principles , as custom , as declaratory of economic or social laws - as precepts discovered by experience as recorded traditional wisdom as restraint on liberty as rules imposed by dominant class as standing between the individual and society as unfolding an idea of right basis of authority of , - , , - , , - byzantine theory of distinguished from rules of law elements of - end of - , ff. effectiveness of finding , - forms of - government of historical theory of , how far made - idea of self-sufficiency of , judge made jurist made maturity of , , merchant , , nature of , , nature of theories of - political theory of restatement of the science of soft spots in the theories of the nature of - law making, judicial presuppositions of legal standards , , - , , legal transactions _bonae fidei_ categories of formal _stricti iuris_ lending letters of credit , - _lex_ _lex aquilia_ liability, absolute act as basis of , analytical theory of - as corollary of fault - , , , , , - basis of delictal delictal , - elements of - employer's fault as basis of , - , for cattle going on vacant lands - for injury by animal , , for injury by child for injury by minor for injury by a _res ruinosa_ for injury by slave for intentional harm for negligence , for non-restraint of agencies for tort, basis of for tort, common-law theory of - for trespassing cattle for unintended non-culpable harm for unintentional culpable harm for vicious animals , from culpability from legal transactions fundamentals of historical anomalies in , , in french law - intention as basis of , justifiable reliance as basis of meaning of natural sources of noxal of carrier of innkeeper , , of master of ship , of stable keeper , on "implied" terms of transaction philosophical theories of - primitive grounds of - quasi-contractual quasi-delictal relational - to make restitution theories of will-theory of , , , without fault , , , , liberty - idea of , idea of as source of liability law and locke, john lorimer, james louis ix magistrate, power of maine, sir henry _mala prohibita_ mandate mansfield, lord , , , manu maturity of law , , maxims metaphysical jurists _metus_ middle ages, conception of end of law in - idea of law in - juristic need in miller, w. g. - mining customs law , minos (pseudo-platonic dialogue) mosaic law _mutuum_ narada nationalism in law natural, meaning of in philosophy of law - natural law , , , , , - , , , , , , , american variant of as a theory of growth - as deduced from "a free government" as ideal critique economic theory of natural obligation natural reason natural rights , - , , , - , , , historical-metaphysical theory of theories of - to produce of labor nature, meaning of in greek philosophy - state of necessary distinctions , negative community negligence - , , , , , , fiction of , in speaking , _per se_ neo-hegelians , neo-kantians , new york, code of civil procedure _nexum_ _nomos_, meanings of noxal liability _nudum pactum_ , , , oaths and vows obligation, civil _ex contractu_ , _ex delicto_ , , _ex uariis causarum figuris_ , meaning of moral basis of natural , - nature of oaths as basis of - _quasi ex contractu_ religious will as basis of occupation , as a legal transaction - office or calling, duties attached to options , ownership, analytical theory of - development of the idea of - dogma that everything must be owned things excluded from _pacta donationis_ pacts , , , partition - , part performance paul, st. _peculium_ - _pecunia credita_ _pedis possessio_ penal treatment, individualizing of - penalty, for delict of reparation personal government - personality pessimism, juristic petty courts , philosophers, attempt to unify law and law making attempt to reconcile authority with need of change quest for an ultimate solving idea philosophical thinking, achievements of in law - as a force in administration of justice needs determining as to law possibilities of in law of contracts plato , pledge political interpretation positivism - possession - post-glossators pothier primitive law - faith of in verbal formulas primogeniture principles , , procedure proculians promised advantages promises, abstract , , an element in wealth exchange of "from ostentation" , , moral duty to keep philosophical theory of enforcing simple theories of enforcing - theory of inherent force of - promissory oath - , property, acquisition of - , analytical theory of - basis in creation basis in division by agreement basis in economic nature of man , community effectiveness of law as to grotius' theory of - hegel's theory of - historical development of law of - historical theory of , - household - , inequalities in , in natural media of life - jural postulates of , kant's theory of - law of lorimer's theory of medieval theory of metaphysical theories of - modes of acquiring - "natural" acquisition of natural-law theories of - natural limits of right of negative community in philosophical theories of ff. positive theory of - psychological theory of , , restrictions on appropriation of restrictions on use and disposition of - self-acquired - seventeenth-century theory of socialization of social-utilitarian theory of sociological theories of spencer's theory of theories of - theory of in anglo-american law theory of in antiquity things not subject to titles to - , twentieth-century theories of protestant jurist-theologians psychology , , - publicists, french public utilities , exemption of from competition - power to contract pufendorf - punitive justice individualization of - quasi-delict , _ratio legis_, doctrine of , reason, excessive faith in , - reform movement, legislative , relations duties attached to economic value of interference with legal protection of release , religion ff. reparation representation _res communes_ , , , , _extra commercium_ , , , _ipsa loquitur_ , - _nullius_ , _publicae_ , _religipsae_ _ruinosa_ - _sacrae_ _sanctae_ responsibility at one's peril right, idea of natural and conventional , - , rights, _in personam_ _in rem_ roman conception of end of law - jurisconsults , roman law , , , , - , , , , , - , , , , , , - , , as basis of medieval law as basis of law in xvii and xviii centuries contribution of to legal philosophy rousseau rules - adapted to commercial transactions adapted to property and discretion - application of as guides mechanical application of - rylands v. fletcher , - sabinians sale satisfaction of wants, as an ideal - savigny, f. c. von scholastic philosophy permanent contribution of seals , , contract under seal security of transactions , seisin self help seller's talk separation of powers - , set off social contract social control , social engineering social ideal as a measure of values social interdependence as a measure of values social interests in peace and order in security of transactions social laws - social order, feudal - idealized form of the static social sciences, unification of social status quo, as end of law - social utilitarianism - socialists society, greek conception of jural postulates of civilized - kin-organized - medieval conception of sociology _sophrosyne_ sovereignty, byzantine theory of specification specific performance - , - spencer, herbert , , , his law of equal freedom his theory of property - spirit and letter standards, legal , , - , , _stare decisis_ status to contract statute of frauds statute of uses stipulation of counsel , stoics strict law , , - , , , , substance, interests of , super constitution , symbols teleology, legal theories of law, elements in - third-party beneficiaries title, by creation by discovery by occupation , "natural" "tort of negligence" torts development of liability for - generalization of liability for law of , nominate , , , , _traditio_ trust, constructive gratuitous declaration of , twelve tables unjust enrichment , utilitarians , utility value, criteria of , - vrihaspati waiver , wants, as juristic starting point - limitations on satisfaction of - satisfaction of - warranties , whale fishing will, as basis of liability , as basis of obligation as juristic starting point , will theory of contract - williston, s. wills, harmonizing of , , - workman's compensation storrs lectures published by yale university press the reform of legal procedure. by moorfield storey. the judiciary and the people. by frederick n. judson. concerning justice. by lucilius a. emery. woman's suffrage by constitutional amendment. by henry st. george tucker. the nature of the judicial process. by benjamin n. cardozo. transcriber's notes . passages in italics are surrounded by _underscores_. . the original text includes greek characters. for this text version these letters have been replaced with transliterations. . the following misprints have been corrected: "predicability" corrected to "predictability" (page ) "aristole" corrected to "aristotle" (page ) . other than the corrections listed above, printer's inconsistencies in spelling, punctuation, and hyphenation have been retained. images of public domain material from the google books project.) the new jersey law journal published monthly volume xlv march, no. editorial notes. happily it is not such a frequent occurrence as may be supposed that the judges of our court of errors and appeals split apart so curiously as they did in determining that the van ness enforcement act should be declared unconstitutional. the result only shows that, like the doctors, judges cannot all think alike. on the subject of whether whiskey is useful as a medicine or not our new jersey doctors, on a canvass, split, to , or to , according as one interprets the replies. in the nation at large it ran per cent. to per cent., a closer margin. but only half of those who were interrogated by the "journal of the american medical association" responded; what the rest thought we do not know. so on the legal questions involved in the van ness act, counting those judges who approved the act as constitutional in the supreme court, the difference between a yea and nay vote appears to have been only one. on the subject of whether the act could be sustained because it took away from defendants the right of trial by jury, which was the great burden in objections made by defendants themselves, the court held what this journal has held, that the legislature had the power to direct that trials might be by magistrates without a jury. it had done so over and over again in other matters and could do so in liquor legislation as well. on other points there were various differences of opinion. however, since the act as a whole is declared unconstitutional, on the ground that it does not conform to the federal act, which declares that the illegal possession, sale, etc., of liquors constitute a crime, instead of disorderliness, the legislature has passed new statutes which alter the basis of a conviction from a disorderly proceeding to a criminal proceeding. there is no hope in this for bootleggers, except as it permits them to escape by jury disagreements or "not guilty" verdicts. if no law were enacted the federal courts would be filled with cases, and the results there would give no hope to criminals. generally speaking, the upsetting of the van ness act is unfortunate, because jury trials are expensive as well as uncertain; trials before judges as magistrates are more certain and far less expensive. in the end, however, bootleggers will not win in the game. * * * * * on the question of the legality of "picketing" by strikes the court of errors and appeals of this state also held quite divergent views, but sustained the keuffel & esser injunction granted by vice-chancellor buchanan against the international association of machinists. the majority decision of the court was rendered on jan. th, in an opinion by mr. justice swayze. his finding was sustained by affirmative and negative votes. besides justice swayze, the members of the court voting to affirm were justices parker, bergen, kalisch and katzenbach, and judges white, williams, gardner and ackerson. voting to reverse were chief justice gummere, justices trenchard, minturn and black and judge van buskirk. "the object of the appeal avowedly is," said justice swayze, "to secure a decision as to the legality of picketing when unaccompanied with violence, molestation of others, annoying language or conduct--in short, what is sometimes called peaceful picketing. parading in the neighborhood of complainants with placards indicating that a strike is in progress is similar in its legal character to picketing." he then pointed out that the court is bound in a measure by the recent decision of the supreme court of the united states in the case of the american steel foundries v. the tri-city central trades council, in which chief justice taft wrote an opinion upon the rights of strikers, both at common law and as governed by the clayton act. taking the federal decision as a foundation, justice swayze said it held the employer had the right to the access of his employés to his place of business and of egress therefrom, without intimidation or obstruction; and the employés, recent or expectant, had the right to use peaceable and lawful means to induce present employés and would-be employés to join their ranks. he remarked that the legality of any particular conduct depends on the facts of the particular case and that picketing may or may not be lawful, as it has or has not an immediate tendency to intimidate the other party to the controversy. remarking that picketing is illegal if it has an immediate tendency to obstruct free passage such as the streets afford, consistent with the rights of others to enjoy the same privilege, justice swayze continued: "thus men may accost one another with a view of influencing action, but may not resort to persistence, importunity, following and dogging. the number of pickets may of itself make the picketing unlawful, since it may amount to intimidation. everyone knows that threats of bodily harm may be made by a mere show of force, without violence of language or breach of the peace, and that mere numbers may intimidate. the real question is, 'does the conduct under existing facts amount to intimidation?' twenty-five or fifty pickets may, when a single picket probably would not. if information alone were wanted in the pending case, all the information necessary for the defendants to enable them to prosecute their efforts to convert the complainants employés would have been obtained by a few men. the use of twenty-five or fifty or two hundred, as in fact used, was clearly unnecessary, and could not have been intended for any lawful purpose. in view of the testimony as to what actually went on, the vice-chancellor properly held that the conduct of the defendants was an illegal interference with the complainants' property rights." * * * * * the opinion noted above is, in the whole, a lengthy one. judge white concurred in it in a separate opinion. justice minturn filed a strong dissenting view, taking the ground that the court's conclusion served to mark another step in the cycle of judicial legislation, which, beginning with an appropriate effort to curb agitation of a forcible character, has concluded with an edict which will be construed to put an end to peaceable and constitutional economic agitation. "nothing further," he said, "would seem to be necessary to complete the chaplet of judicial legislation, unless it be the invocation of the provisions of the statute of laborers (edward iii.), under the provisions of which the laborer was effectually conscripted to the service of the master, and to that end was hounded as a helot, and labeled with the brand of cain. in every other walk of life the peaceful activities condemned by these adjudications are quiescently tolerated, if not approving recognized." * * * * * the cash bonus asked--not asked but demanded in formal resolutions--by various of the associations of the american legion throughout the country, and which has given the present congress and the president more concern than almost any domestic subject, has not struck a responsive chord in the popular ear except from the soldiers--a minority of them, as we believe--who want it. every business man knows it is not the time to pension well soldiers of the late war further than the states are doing it. we have always doubted that the best officers and soldiers of the country were behind the movement. it is to belittle their patriotism to believe that they desire to foist billions of taxes, direct or indirect, upon their country at the present moment. * * * * * when senator edge told an assembly at atlantic city recently that the senate of the united states, of which he is a member, failed alarmingly in performing its proper duties in a speedy and efficient manner, he only stated what public opinion has long held. the mere fact, to which he did not allude however, that a few men can talk any good project before that body to death, the senate rules permitting unlimited debate, has served again and again to prove the truth of his statements. the house of representatives, with its too-many members, is far more reflective of public sentiment than the senate, and actually does its work more expeditiously when a majority of members desire quick action. a reform in the senate is of such importance that too much public attention to its improper methods of carrying on public business cannot be given. the press of the country should be a unit in demanding a change in methods and results. the new york "times" thinks the trouble is largely due to the fact that there is a dearth of strong men in the senate; that there is no great inducement for a strong man to go to the senate as a new member, because he is practically "frozen out" of any good committee assignment for a long period of time. it says of a new member: "what will happen to him when he takes his seat in the senate? he will get only insignificant committee appointments. he will be expected to be silent for at least six months. if he undertakes, as a new senator, to impress upon the senate any positive convictions of his own, he will be 'hazed' like a college freshman in the effort to teach him his place. if there is in the senate a 'career open to talent,' it is open only after long waiting. in short, the senate that now professes an anxiety for the accession of strong men itself puts formidable obstacles in the way of a strong man. its rules, as senator wadsworth has just been lamenting, make it almost impossible to transact business. its time is mostly taken up by querulous and ineffective members. its committees are manned by the rule of seniority, which too often spells senility. indeed, about the only way in which the senate as it is at present can be said to be a nursery of political strength is in accordance with the maxim, suffer and be strong. a senator who can survive for a few years the suffering, mental and moral, which he has to undergo in the senate, may emerge into power and influence. but upon the strong man just arrived the senate always puts a damper." lots of truth in this. nevertheless, present senate rules combined with too much politics and too little statesmanship and business activity are responsible for a deterioration of the public esteem for our highest governing body. * * * * * dean stone of the columbia university law school of new york city in a report to the president of that institution made recently sounds a proper warning as to the quality and numbers of young men crowding into the bars of many of the states. among other things he said: "it may well be doubted whether there is any profession which makes greater demands than the law on the capacity of its members for sustained intellectual efforts, their powers of discrimination and their ability to master detail. yet, as i have often had occasion to point out in these reports, increasing numbers of men of mediocre ability and inadequate preliminary education are being attracted to the law by the ever-increasing facilities for law study. what, under the conditions of law study and admission to the bar of a generation ago, was a task of magnitude testing the patience, stability, character and intellectual power of the prospective lawyer to the utmost may now be performed with relative ease. this is partly attributable to the multiplication of opportunities for law and study nicely adapted to the peculiar type of bar examination prevailing in most of our states, and partly because law schools and bar examinations too often place the interests of the individual law student and sometimes their own interests ahead of the interests of the profession. it is the duty of law schools to dissuade the man of ordinary ability and meagre education from beginning law study, and, if he will not be dissuaded, to apply to him standards of proficiency and attainment worthy of the profession to whose membership he aspires." * * * * * the washington conference is over and the results are more than gratifying. only the blindest obtuseness on the part of the united states senate has prevented early ratification of the various treaties made by it. the great point gained by this conference is that it brought great britain, france, japan, china and five other powers face to face in friendliest attitude, and this is what should happen again when occasion calls for it. every country represented is happy over the result, and to say that america should be is a truism. it marked another great event in world history. * * * * * some day perhaps, every moving-picture theatre will have this description of the art it employs on its front curtain, for is it not the lucid description recently published in a magazine devoted to the "sublime art" of motion-picture writing? and it will be good for school boys and girls to interpret: "the photodramatist enters the great cosmic drama in keeping with the infinite plan; he will be, in the expanse of days to come, a master of new values in art, science, philosophy, religion. from the fastnesses of the invisible world of thought, fulgurous forces of the very essence of beauty are sweeping into his consciousness, attracted by the human desire for more complete expression." some reminiscences, mostly legal. by hon. frederic adams, los angeles, california. v. some new jersey courts and lawyers. in the early autumn of , nearly sixty years ago, i became a law student in the office of amzi dodd, in newark. mr. dodd was then at the best of his mental and physical strength. in his office i came to know, admire and revere him, and there was begun a cordial friendship between us which continued unbroken until he passed away in extreme old age. i think that there was not in new jersey a sounder legal head than his, nor a better balanced and more sagacious legal judgment. nor was this all. he was profoundly ethical, not obtrusively but sensitively. there was a voice within to which he always listened, and he rested firmly on the fundamental morals which are part of the religion of every good man and underlie the law itself. nor was this all, for to the innermost recesses of his nature he was devoutly, rationally and serenely christian. mr. dodd was a princeton graduate and a contemporary of three remarkable rutgers men, cortlandt parker, frederick t. frelinghuysen and joseph p. bradley, any one of whom would have conferred distinction on any bar in the country. mr. dodd, though a good and persuasive speaker, had not the oratorical charm of mr. frelinghuysen, nor the forensic power of mr. parker. he and mr. bradley had a good deal in common. both were scholarly, excellent mathematicians, and had the judicial stamp. in my first year with mr. dodd i had an interesting experience. his cousin, chief justice edward w. whelpley, came to newark to hold the essex circuit, pursuant, i suppose, to some arrangement with judge daniel haines. he was in the office almost every day, and i lost no opportunity to attend court and hear him try cases. he was an impressive figure, a big man with a heavy voice and a commanding manner. i have sometimes wondered since whether he was really as powerful a judge as he then seemed to me to be, or whether perhaps his dominating personality threw a kind of spell over me. i remember that his charge would often efface the impressions made by the arguments of counsel. he seemed to be in exuberant health and spirits, and to have before him the prospect of many years of usefulness and distinction. he died on february , , and was succeeded by mercer beasley, who held office for thirty-three years, and wrote his name high on the scroll of new jersey worthies. i wonder how many of the essex bar now remember seeing chief justice whelpley at the essex circuit. he held the union circuit also, and, i have heard, used to get his dinner in new york on the ground that there was nothing fit to eat in union county. he was probably unfortunate in his choice of a restaurant, or perhaps his requirements were unusual, for he is said to have spoken unfavorably of our national bird, the turkey, because a turkey is "too much for one and not enough for two." judge haines left the bench at the expiration of his term on november , , and was succeeded by david a. depue, who held office as judge and chief justice and was a strong pillar of society, until november , . a persian proverb says that a stone fit for the wall is never left in the road, and so, as it was according to the evident fitness of things that mr. dodd should become a judge, that event came to pass when chancellor zabriskie, in , appointed him the first vice-chancellor. in he resigned his office, and in was reappointed by chancellor runyon. he became also a specially appointed judge of the court of errors and appeals, thus strengthening its equity side. in a court many of whose most important issues are in equity, and one of whose members is the chancellor, who is precluded from sitting in equity cases, it is always well that some of the judges should have, or have had, the valuable experience of sitting alone in equity, and dealing at first hand with the rules of equity practice and procedure. this has been the case with justice bergen and mr. dodd. no other instances occur to me. the highwater mark of vice chancellor dodd's judicial duty was reached in the memorable case of pennsylvania r. r. co. v. national railway co., equity , decided at the february term, . this was before the general railroad law, and there was a strong movement, backed by much public opinion, and attended by some public excitement and high feeling, to break the monopoly of the pennsylvania railroad company by uniting interests and connecting existing roads, so as to secure an independent through line between new york and philadelphia. the purpose was meritorious, for the state needed another through line. the case which vice-chancellor dodd decided was in form an application to enjoin the national railway company from proceeding with the construction of its road in new jersey with intent to use it as part of a through line from new york to philadelphia. the argument which, with the reading of proofs, took two weeks, was upon a rule to show cause why an injunction should not issue pursuant to the prayer of the bill. attorney-general stockton, mr. theodore cuyler and others were counsel for the complainant, and mr. cortlandt parker and others represented the defendants. i went to trenton to hear the opinion. the reading of it took about an hour. the gist of the opinion, which was for the complainant, was this,--not that several links might not form a chain, but that the defendants' so-called links formed no chain because the legislative acts which created them indicated no intent that they should connect. the opinion shows vice-chancellor dodd's strong judicial qualities; admirable language and style, clear statement, controversial force, persuasive reasoning and exposition, all, in their combination, leading up to a high level of jurisprudence. i know of nothing in the new jersey books more skillful or nobly ethical than portions of this opinion. vice-chancellor dodd would not have esteemed it praise to be told that the case was a test of his nerve, for, though his feelings were easily wounded, he was far above being moved by clamor, either before or after a decision. i will not dwell on vice-chancellor dodd's other opinions. they are numerous and may be consulted in the volumes in which they are printed, beginning with nd equity. a strong magnet was drawing vice-chancellor dodd away from the law to a pursuit attractive to one of his mathematical bent: i mean the intellectual side of the science and art of life insurance, and it finally captured him. perhaps some readers of the new jersey law journal have been favored, as i have been, by polite letters from one or more insurance companies, offering options between two or three propositions about equally unintelligible, and have, perhaps improvidently, solved the problem by selecting the one which seemed to promise most immediate cash. to such persons, if any there be, i respectfully commend the perusal of a valued and interesting book of about four hundred pages which lies before me, entitled "reports to the board of directors of the mutual benefit life insurance company, made by amzi dodd as mathematician or president, from october, , to january , ." i can say like hamlet, "i am ill at these numbers," if i may be pardoned for perverting the meaning of the prince of denmark, but i have sufficient comprehension to see that the same man wrote the opinions and the reports, and that they are characterized by the same high mental and moral qualities. mr. dodd was fond of governor william pennington and liked to talk about him. they became acquainted when they met in a cow case at orange. an old woman's cow was run down and killed by a morris & essex train and young dodd sued the railroad. it had not then been judicially determined in new jersey whether a cow or the locomotive had the superior right of way. the case was tried before a justice of the peace with a jury. dodd was very much on his good behavior and treated the governor with extreme courtesy. he had the crowd with him and triumphantly won the verdict. the next day governor pennington called on him, or sent for him, complimented him on his management of the case, and spoke of his own friendship with amzi dodd, an uncle of young amzi, who was a capable newark lawyer, a careless, unsystematic man of whom i heard mr. cortlandt parker tell that he carried his papers in his hat, and was said sometimes to lose both hat and papers together. one day, amzi dodd, the uncle, came into governor pennington's office and said: "good morning, governor. confound these young fellows! they get all my books away from me. now there is 'elmer's forms.' i own a copy of it, and it has my name in it, but it is gone. it is a very useful book. i need it every day. governor, have you a copy that you can let me have?" governor pennington, who was a courtly gentleman of the old school and something of a wag, answered very gravely: "mr. dodd, i agree with you about 'elmer's forms.' it is an excellent office book. i consult it every day and should be sorry to be without it, but you know, mr. dodd, that i am always ready to oblige you, and i will cheerfully let you have it if you will promise in writing to return it when i need it." "certainly," said mr. dodd, and dashed off a serio-comic agreement to return the book when called for. he folded the document and handed it to the governor, and the governor handed him his own missing book. i told this to my old yale friend, william pennington of paterson, a nephew of the governor, who chuckled and said, "i can see him doing it." governor pennington used often to associate young dodd with him in the trial of causes. he had been governor under the old constitution and _ex-officio_ chancellor, but was not scholarly and relied very much on his knowledge of the world, tact, and strong common sense. mr. dodd once told me that while the governor knew very little law, he was a most dangerous antagonist before a jury. if he had the close he was almost sure to get the jury with him, and if you had the close he would sit in front of the jury and smile your speech away. mr. dodd is my authority for this story: ex-governor daniel haines, the justice of the supreme court who held the essex circuit, was a man of strict views, and mr. cortlandt parker, the prosecutor of the pleas, was discharging his important duties with a force and efficiency worthy of national issues and a wider stage, and so, what with the austerity of the judge and the zeal of the prosecutor, the way of the transgressor was growing hard, and it was getting to be common talk among the rounders and hangers-on at the courthouse that if a man was indicted he might as well plead guilty at once and save the county the expense of a trial. some malefactor, with more money or spirit than the others, paid governor pennington a good fee and instructed him to fight. the governor had been informed of the current gossip, and thought he would see what he could make out of it. so he told the jury in his most impressive manner, that a man is taken to be innocent until he is proved to be guilty; that this is the palladium of our liberties; and that he feared that this precious, fundamental right was not sufficiently borne in mind, even in the courthouse of the county of essex, and that it was too much assumed that conviction ought to follow indictment. at this point judge haines, with a flushed face and his eyes shining brightly through his gold-rimmed spectacles, interrupted the governor, and said that he had heard the remarks of the distinguished counsel with much surprise and regret; that they conveyed an imputation upon the court itself--an intimation that he was derelict in his duty toward an important class of suitors, the defendants in criminal cases, and that he desired to know and now asked counsel to state from what persons he heard these strictures upon the court. governor pennington, with his usual urbanity, bowed and said: "it is mainly from the criminals themselves." this answer occasioned such a sudden revulsion of thought and feeling as to discompose the judge and convulse the bar. it is now just seventy years since mr. dodd went to trenton to hear and see daniel webster and rufus choate in the case of charles goodyear against horace h. day, pending in the circuit court of the united states before judge grier of the supreme court, and a district judge. there is probably now no living member of the bench or bar of new jersey who attended that trial even as a spectator. as to this case i quote briefly from mr. choate's "commemorative discourse" on webster, delivered at dartmouth college on july , : "the professional life of mr. webster began in the spring of . it may not be said to have ended until he died; but i do not know that it happened to him to appear in court, for the trial of a cause, after his argument of the goodyear patent for improvements in the preparation of india-rubber, in trenton, in march, . there i saw him and last heard him. the thirty-four years which had elapsed since, a member of this college, at home for health, i first saw and heard him in the supreme court of massachusetts, in the county of essex, defending jackman, accused of the robbery of goodrich, had in almost all things changed him. the raven hair, the vigorous, full frame and firm tread, the eminent but severe beauty of the countenance, not yet sealed with the middle age of man, the exuberant demonstration of all sorts of power, which so marked him at first--for these, as once they were, i explored in vain. yet how far higher was the interest that attended him now: his sixty-nine years robed, as it were, with honor and with love, with associations of great service done to the state, and of great fame gathered and safe; and then the perfect mastery of the cause in its legal and scientific principles, and in all its facts; the admirable clearness and order in which his propositions were advanced successively; the power, the occasional high ethical tone, the appropriate eloquence, by which they were made probable and persuasive to the judicial reason--these announced the leader of the american bar, with every faculty and every accomplishment, by which he had won that proud title, wholly unimpaired; the eye not dim nor the natural force abated." mr. webster represented goodyear, mr. choate represented day. the injunction which goodyear applied for was granted. day surrendered his license, transferred his factory and machinery to a representative of goodyear, and agreed to retire from the business for the sum of $ , , and counsel fees amounting to $ , additional, which amounts were paid. mr. webster's retainer was $ , . mr. dodd liked to talk about this case. mr. webster and mr. choate each spoke for two days, or parts of two days. chancellor green is said to have called mr. choate's argument the finest that he ever heard in court. lawyers came from all over the state to attend the trial. mr. dodd said that at times mr. choate would seem "to go up like a balloon." one who has heard or even read choate knows how at times he would seem to lift himself and his audience on the rushing wings of his magical oratory. one of the junior counsel for day had made some impression by dwelling on the hardships of operatives if the injunction should be granted. the day was getting late and judge grier suggested to mr. webster, who was to speak next, that the court adjourn until the next day. mr. webster assented, but said: "there is one thing that i wish to say now. if mr. day's operatives are likely to be distressed, it will be because of his own default, of his own breach of faith, of his own repudiation of his own solemn contract, under his own hand and seal," and, as he said it, his voice deepened and his eyes flashed, and the courtroom rang as with a peal of mellow thunder. mr. dodd came out of court with ex-chancellor halsted who said: "well, amzi, the old lion has given his first growl." the case is reported in federal cases, page , case no. . in a footnote is this extract from mr. webster's argument. it is interesting, for it shows him at his very best and is not generally known. his biographer, mr. g. t. curtis, speaks of this argument as one of the most remarkable and interesting of his forensic efforts. "i believe," said mr. webster, "that the man who sits at this table, charles goodyear, is to go down to posterity in the history of the arts in this country, in that great class of inventors at the head of which stands robert fulton, in which class stand the names of whitney and of morse, and in which class will stand '_non post long intervallo_' the humble name of charles goodyear. notwithstanding all the difficulties he encountered he went on. if there was reproach he bore it. if poverty, he suffered under it; but he went on, and these people followed him from step to step, from to , or until a later period when his invention was completed, and then they opened their eyes with astonishment. they then saw that what they had been treating with ridicule was sublime; that what they had made the subject of reproach was the exercise of great inventive genius; that what they had laughed at was the perseverance of a man of talent with great perceptive faculties, which had brought out a wonder as much to their astonishment as if another sun had arisen in the hemisphere above. he says of his cell in the debtors' jail that 'it is as good a lodging as he may expect this side the grave'; he hopes his friends will come and see him on the subject of india rubber manufacture; and then he speaks of his family and of his wife. he had but two objects, his family and his discovery. in all his distress and in all his trials his wife was willing to participate in his sufferings, and endure everything, and hope everything; she was willing to be poor; she was willing to go to prison, if it was necessary, when he went to prison; she was willing to share with him everything; and that was his solace. may it please your honors, there is nothing upon the earth that can compare with the faithful attachment of a wife; no creature who, for the object of her love, is so indomitable, so persevering, so ready to suffer and to die. under the most depressing circumstances woman's weakness becomes mighty power; her timidity becomes fearless courage; all her shrinking and sinking passes away, and her spirit acquires the firmness of marble--adamantine firmness, when circumstances drive her to put forth all her energies under the inspiration of her affections. mr. goodyear survived all this, and i am sure he would go through the same suffering ten times again for the same consolation. he carried on his experiments perseveringly, and with success, and obtained a patent in for his great invention." there is a spirited report of the same case in wallace jr., where, at pages and , are some turns of thought and expression very characteristic of mr. webster. a few months later, on october , , daniel webster died at marshfield. years after the trenton trial mr. dodd was in boston, and was inclined to call on mr. choate, at his office, but at the very door his diffidence made him withdraw. he should have gone on. an opportunity was lost. it was said of mr. choate that he treated every man with the courtesy due to a woman, and every woman as though she were a queen. he bore interruptions cheerfully, almost gladly. mr. choate would have been found working at a standing desk covered with his hieroglyphic notes, undecipherable except by himself; he would have cordially owned his visitor's fraternal claim to his attention; and he would have kindled to the depths of his nature at the memory of his last encounter with his mighty friend. * * * * * that the sale of whisky is prohibited by law is held in ellis v. com. ky. , s. w. , not to deprive it of its character as goods, wares, and merchandise, and a thing of value, within the meaning of a statute providing for punishment of one breaking into a storehouse and taking therefrom goods, wares, and merchandise or other thing of value. in re b. & b. motor sales corporation. (u. s. dist. court, dist. of new jersey, jan. , ). _bankruptcy--sale of auto truck--conditional agreement and its transfer--right to possession of property--uniform conditional sales act_. in the matter of b. & b. motor sales corporation, bankrupt. on exceptions to master's report denying the first people's trust petition for certain property held by the receiver. mr. harry green for exceptants, the first people's trust. mr. barney larkey for the receiver. rellstab, district judge: the first people's trust excepts to the master's findings that it is not entitled to apex truck no. , found in the possession of the b. & b. motor sales corporation (hereinafter called the bankrupt,) at the time the receiver took charge of the bankrupt's estate. the facts are: the bankrupt carried on the business of buying and selling auto trucks. on july , , it agreed in writing with robert jones to sell him the truck in question for $ , , payable in monthly installments. in this writing (called a "conditional sale agreement"), signed by both parties, it was declared, inter alia, that the bankrupt had that day delivered the truck to the buyer; that the title to the truck was not to pass to the buyer, but was to "remain vested in and be the property of the seller or assigns until the purchase price has been fully paid;" that if jones failed to pay any of the installments when due the bankrupt might without demand, notice, or process, take possession of the truck, whereupon jones' right therein should terminate absolutely, and all payments made thereon be restrained by the bankrupt as liquidated damages and rent. at the same time, jones executed two notes to the bankrupt, one for the sum of $ , . (in the conditional sale agreement recited to be the balance to be paid on the truck), payable in twelve monthly installments, wherein it was declared that "upon default in the payment of any installment when due, the whole amount remaining unpaid shall immediately become due;" the other note represented the remainder (or some part of it) of the purchase price. both the conditional sale agreement and the $ , . note subsequently were transferred by the bankrupt to the first people's trust. the transfer of the agreement is dated july , , and recites that it is simultaneous with the purchase of the note; in terms it sells, assigns and transfers the bankrupt's right, title and interest in the automobile in question and also in the conditional sale agreement, and asserts that the automobile was sold and not consigned to the buyer. the transfer of the note bears no date, is in the form of an endorsement, guarantees payment of the note, principal and interest, waives demand and protest, and is signed by the bankrupt by its president and secretary, and by the same persons individually. jones had possession of the truck for several months, and, after making some of the stipulated payments, defaulted in further payments on both notes. the bankrupt repossessed itself of the truck, and was in possession thereof at the time the receiver took charge. neither the conditional sale agreement nor the assignment was recorded. no rights or interests of any purchaser or creditor of jones, the buyer, are involved in these proceedings, the controversy being exclusively between the assignee of the conditional sale agreement and the creditors of the bankrupt (seller). the master held that the assignment of the conditional sale agreement "was to act as a mortgage for the payment of the notes;" and that, as neither the conditional sale agreement nor the assignment had "been recorded in accordance with the laws of the state of new jersey and ... the b. & b. motor sales corporation had repossessed the truck and had it in its possession at the time of the appointment of the receiver," the receiver, and not the first people's trust, was entitled to it. first, as to the conditional sale agreement. the new jersey uniform conditional sales act, approved april , , effective from july , (n. j. p. l., p. ), in section , defines a seller as "the person who sells or leases the goods covered by the conditional sale, or any legal successor in interest of such person." in section it declares that: "every provision in a conditional sale reserving property in the seller after possession of the goods is delivered to the buyer, shall be valid as to all persons, except as hereinafter otherwise provided." the exceptions here referred to are contained in section , which declares that: "every provision in a conditional sale reserving property in the seller shall be void as to any purchaser from or creditor of the buyer, who, without notice of such provision, purchases the goods or acquires by attachment or levy a lien upon them, before the contract or a copy thereof shall be filed as hereinafter provided, unless such contract or copy is so filed within ten days after the making of the conditional sale." from this recital it will be seen that as no purchaser from or creditor of jones is questioning the validity of such reservation, as between the bankrupt and jones, the reservation to the bankrupt of title and property in the truck, was valid, notwithstanding the failure to record the agreement. second, as to the assignment of the conditional sale agreement: the new jersey chattel mortgage act (revision of ; comp. stat. n. j., p. ) in section , declares: "every mortgage or conveyance intended to operate as a mortgage of goods and chattels hereafter made, which shall not be accompanied by an immediate delivery, and followed by an actual and continued change of possession of things mortgaged, shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage, having annexed thereto an affidavit or affirmation made and subscribed by the holder of said mortgage, his agent, or attorney, stating the consideration of said mortgage and as nearly as possible the amount due and to grow due thereon, be recorded as directed in the succeeding section of this act." to constitute a mortgage the right of redemption must exist, and where such right is established the form of the conveyance is not controlling. wilmerding, heguet & co. v. mitchell, n. j. l. ( vr.) ; hastings v. fithian (e. & a.), n. j. l. ( vr.) . an assignment of a chose in action, even if it be a security for the payment of a debt, is not a chattel mortgage within the meaning of the new jersey chattel mortgage act. bleakley v. nelson, n. j. e. ( dick. ch.) . this act applies only "when the goods mortgaged are capable of such open and visible possession that their holding by a mortgagor, who had given a secret mortgage, might tempt someone to deal with him as the absolute owner." cumberland national bank v. baker, n. j. e. ( dick. ch.) , . the assignment now under consideration was not given as a security. it was an absolute transfer of the seller's property and interest in the conditional sale agreement and the automobile mentioned therein, without right of redemption. by this assignment the people's trust became the "legal successor in interest" referred to in section one of the uniform conditional sales act, supra; and the reservation of property contained in the conditional sale agreement was transferred to it by the assignment. the assigned agreement recited that the automobile had been delivered to the buyer, and the assignment expressly recited that it had been sold to jones (the buyer); and the assignor at the time of the assignment was not in a position to retain the automobile, or to deliver it to the assignee. what the assignor could deliver to the people's trust was the conditional sale agreement, and that was done. had the transfer been to secure a debt, the delivery of the conditional sale agreement would savor more of a pledge than a chattel mortgage, but, as the assignment was absolute and not conditional, it was neither. such a transaction is not contemplated by the chattel mortgage act, which covers transactions where the title, but not possession, is transferred; but by the uniform conditional sales act, supra, which operates upon transactions where the possession, but not the title, is transferred. the right of the people's trust to the automobile is fixed by the assigned conditional sale agreement, and is superior to the rights of the bankrupt or its creditors--here represented by the receiver. as opposed to this view, and in support of the master's finding, the case of david straus co. v. commercial delivery co. (n. j. ct. ch.), atl. , affirmed by the court of errors and appeals, atl. , is cited by the receiver. that case, made up of facts which existed before the uniform conditional sales act went into effect, presents many features similar to the instant case. however, the differences, and not the similarities, are controlling. the pertinent facts were: coincident with the agreement (called a lease) relating to the delivery and use of the automobile truck, the lessee (driver) entered into a service contract with the lessor (commercial delivery company). in that contract the driver agreed to work the truck under the direction of the lessor for two years, and in no other way than as directed by it, and to deliver to the lessor the entire gross monthly earnings. the contract also provided that out of these moneys the latter was to retain a certain percentage for its services, pay the wages of the drivers, storage charges, repairs, etc., and credit the balance to the driver; and that the truck should at all times be stored in a garage furnished by the lessor. the lessor assigned to the morris plan company all its right, title and interest in the lease and the property therein described, and agreed, "in the event of any resale, release, or repossession of said property," to pay to the assignee any deficiency between the net proceeds of such resale and the amount necessary to pay the unpaid installments. at the time of this assignment the assignee took a note made jointly by the assignor and the driver for the sum advanced by the assignee as consideration for the assignment. subsequently an equity receiver in insolvency proceedings was appointed for the lessor, and the receiver found it in possession of the truck. the morris plan company petitioned that the truck be delivered to it as the legal owner thereof. the vice-chancellor held that the assignor was a debtor of the assignee; that the assignment was not an absolute sale of the truck, but collateral security for the payment of the debt; that while the lease apparently gave the right of possession to the driver (lessee), the actual possession, by reason of the service contract, was always in the lessor; that the assignment of the lease was in legal effect a chattel mortgage; and that not having been recorded it was void as against the receiver and creditors of the assignor. as already stated this finding was affirmed by the court of errors and appeals. in the cited case, as noted, it was held that the possession, as well as the title, of the truck was in the lessor at the time of the assignment of the lease or sale agreement; and that the assignment was not an absolute sale of the agreement, but a security for the payment of the advances made by the assignee for which payment the assignor was jointly liable with the driver. in the instant case, the actual, as well as the right of possession of the truck, was not in the bankrupt, but in a third person--the buyer--and the assignment was an absolute transfer of the bankrupt's property in the conditional sale agreement, without right of redemption. these differences are essential, and distinguish the cases. the fact that the truck was taken from the buyer by the bankrupt subsequent to the latter's assignment of the conditional sale agreement, gave it not property or right in the truck as against its assignee, the first people's trust. whatever rights such possession gave it as against the buyer, they were subordinate to the assignee's right of possession on the buyer's default in the terms of the conditional sale agreement then held by the assignee. such default having taken place, the assignee is entitled to the possession of the truck. the master's findings are disapproved, and an order will be made giving the first people's trust the possession of the truck in question. osborne & marsellis co. v. essex co. (essex co. circuit court, feb. , ). _compensation for road labor performed under county contract--ultra vires resolution_. case of the osborne & marsellis company against county of essex. messrs. edwin b. and philip goodell for plaintiff. mr. arthur t. vanderbilt for defendant. dungan, j.: this is a suit brought by osborne & marsellis company against the county of essex to recover compensation for labor performed and materials furnished in the improvement of a part of franklin avenue, a county road in the county of essex, prior to the allowance of a writ of certiorari to review the legality of the contract under which the work was done, which contract was set aside by the supreme court, and the decision of that court was affirmed by the court of errors and appeals. chamber of commerce v. county of essex, atl. . the case is submitted upon a statement of the case and stipulation of facts for judgment, without pleadings; the parties agreeing that the issues be submitted to this court for decision, without trial by jury, and that "no appeal will be taken from the judgment entered on his findings." from the agreed statement of fact it appears that there was no irregularity on the part of osborne & marsellis in the bid, in the awarding of the contract, or in the execution of the contract, which was approved as to form by the county counsel, and a bond was furnished which was also approved, both in accordance with the resolution of the board awarding the contract. it also appears that, after the adoption of the resolution awarding the contract, the plaintiff commenced the work and performed work and furnished materials, the value of which, at the unit prices fixed by the contract, amounted to $ , . , all of which labor and materials were performed and furnished prior to the allowance of the writ and prior to notice that application would be made for the writ, "except such work as was necessary to leave the unfinished road in condition as required by law." the grounds upon which the contract was set aside appear fully in the case of chamber of commerce v. county of essex, atl. . two defenses to the plaintiff's claim are urged: first, that the contract was not signed by the director of the board of freeholders; and, second, that the resolution constituted an ultra vires act of the board of freeholders and that there can be no recovery upon quantum meruit where the act is ultra vires. . the resolution of the board of freeholders relating to the awarding of the contract, which included other contracts, is as follows: "resolved that the contracts ... be and the same are _hereby awarded_;" and that "the director and clerk be and they are hereby authorized and directed to execute contracts with said companies pursuant to this resolution," the only conditions being that a proper bond be furnished and that the contract and bond be approved by the county counsel, and both contract and bond were so approved. the contract, therefore, was awarded by the resolution itself, and the formal document, approved by the county counsel, was actually signed by the clerk and the seal of the county affixed thereto by him, and the failure of the director to sign was a failure to perform a purely ministerial act, the performance of which could have been required by proper legal proceedings. therefore, i hold that the plaintiff is not prevented from recovering on account of the failure of the director to sign the contract. . the subject of the contract is one which was entirely within the powers of the board, and hence it cannot be said that the action of the board in awarding the contract to the plaintiff was ultra vires in that respect. after the adoption of the resolution awarding the contract, and after the approval of the plaintiff's bond and the form of the contract by the county counsel, and the affixing thereto of the signature of the clerk and the seal of the county, the plaintiff commenced the work contemplated by the contract. grade stakes were furnished by the county engineer's department, and the work which was performed was under the supervision and direction of an inspector furnished by that department, and the portion of the road upon which the work was done was completed and left ready for use and is now actually in use by the public. this situation, it seems to me, brings this case within the decision of the supreme court in wentink v. freeholders of passaic, vroom, p. , in which it appeared that a contract to do the mason work of a bridge was let to wentink, which contract the court subsequently declared void because the firm to whom a contract for the same work had been originally awarded, but which had failed to furnish a bond, had no notice that their bid had been rejected. wentink expended $ in attempting to secure materials and in the execution of the contract. the court held, that even though the county had derived no benefit from such expenditure, wentink might recover the amount expended. the court said: "there was no lack of power to make the contract with the plaintiff. the fatal defect was in an irregular exercise of such power. it would be too much to hold every contractor for a public body to a scrutiny at his peril of the corporate proceedings. all that he need look to is the power to make the ostensible contract." on the question of damages the court said: "in the case in hand the performance of the contract was not prevented by the fault of the defendant, but by _vis major_. the making of the contract was, however, induced by such fault, and on its annulment the defendant should answer, as on a quantum meruit for the work done thereunder," and that, "as to the measure of the quantum meruit for the work done the contract rate should govern." it is admitted that at the contract rate the work which was performed by the plaintiff would have amounted to $ , . . since this case is submitted for judgment without pleadings, and since the statement of the case and the stipulation of facts make no provision for interest, the judgment of the court will be in favor of the plaintiff and against the defendant for that sum. in re elizabeth avenue assessment. (union co. common pleas, jan., ). _assessment for repairing street--method employed--method suggested_. in re appeal from assessment for repairing elizabeth avenue from front street to seventh street, elizabeth. mr. alfred s. brown, appellant, in person. mr. joseph t. hague, for city of elizabeth. pierce, j.: this is an appeal from an assessment for repaving with granite blocks that portion of elizabeth avenue, elizabeth, extending from a point about feet east of front street to seventh street. the error complained of is inequality as compared with other assessments. appellant is the owner of a triangular lot of land lying between elizabeth and first avenues, at their intersection at liberty square; the lot is bounded northerly feet on elizabeth avenue, easterly feet on liberty square, southerly about feet on first avenue, and westerly feet on abutting property; the lot is vacant except for an old house at the southwest corner fronting on first avenue. the general method of assessment adopted by the commissioners was as follows: from the whole cost of the improvement, $ , . , was deducted $ , . , paid by the public service company for repaving its trolley tracks, leaving $ , . , of which one-half was assumed by the city and the other half assessed upon abutting property, being at the rate of $ . per linear front foot. the commissioners adopted this linear front-foot rate as the bases of the assessment, and imposed it upon all lots one hundred feet deep; short lots were given concessions assumed by the city, viz., - / per cent. off where the lot was feet deep, - / per cent. off where the lot was feet deep, and in that proportion. the commissioners determined that as to all the lots the assessment was less than the value of the lot, and less than the benefit conferred, but gave no consideration as to the relative value of the lots as between themselves. in assessing appellant's triangular lot the following method was adopted: the lot was divided lengthwise by an imaginary line into two equal parts, one fronting on first avenue and the other on elizabeth avenue. the part on first avenue was not assessed. the part on elizabeth avenue was assessed at the regular rate of $ . for its feet frontage, a total $ , . , less three concessions: a concession of - / per cent. ($ . ) was allowed on the westerly feet averaging fifty odd feet deep; a concession of per cent. ($ . ) was allowed on the remaining feet averaging thirty odd feet deep; and a concession of per cent. ($ . ) was allowed for the feet fronting on liberty square. total concessions, $ . , leaving $ , . as the assessment levied. in addition to the concessions the commissioners made no assessment against the lot for its frontage on liberty square. the result reached by the commissioners was to assess a lot feet in front on elizabeth avenue, - / feet deep at one end and - / at the other, nearly four-fifths as much as though the entire frontage had been full lots feet deep. this is unreasonable and i think more than appellant's entire lot should be assessed. i think the commissioners erred in two respects in their method of assessment: . it was improper to divide appellant's lot lengthwise for the purpose of assessment. the lot was already too shallow for the greater part of its frontage for ordinary building purposes, and to divide it further was to leave two narrow strips, one fronting on elizabeth avenue and the other on first avenue, neither of any sale value, or practical value for any purpose. it was held by the court of errors and appeals in aldridge v. essex road board ( n. j. l. ) that assessors may not divide a lot for the purpose of assessment so that, should a sale result to collect the tax, the property would not bring as much as if sold as part of the original parcel. the rule was followed in coward v. north plainfield ( n. j. l. ), where, as in the case at bar, an imaginary line was drawn midway between two avenues. . i think the commissioners erred also in disregarding the relative benefit received by lots along the line of the improvement resulting from location and value of the property. the assessment was strictly a front-foot assessment with concessions for short lots, but disregarding the element of location and relative value. the th ward assessment roll received in evidence shows substantial variations in the value of properties on elizabeth avenue, and inspection of the line of improvement about a mile in length shows greater traffic and better building and values toward seventh street than opposite and below appellant's lot. the intersection of elizabeth avenue and high street, a few feet west of seventh street, is a business center for that part of the city, and values and traffic are materially greater in that vicinity than below third street. it is manifest that business houses dependent upon traffic for their business are more benefited by a paving improvement than vacant lots at a distance where there is less traffic. it is well settled in new york that the relative value of lots and the buildings upon them must be considered in determining the benefits accruing from a paving improvement (donavan v. oswego, misc. , and cases therein cited); and in state v. rahway ( n. j. l. ; affirmed by the court of errors and appeals in vr. ) a greater assessment upon lots nearer a business center was approved in a grading, curbing and guttering improvement. the statute provides that "all assessments ... levied for any local improvement shall in each case be as near as may be in proportion to the peculiar benefit, advantage or increase in value which the respective lots and parcels of land and real estate shall be deemed to receive by reason of the improvement." under the circumstances existing in the case at bar, there being, as i find, a difference in benefit along the line of the improvement resulting from location and value, these elements should have been considered by the commission and such weight given them as in the judgment of the commissioners they should receive. in reassessing appellant's lot i suggest a different ratio of concessions for short lots. the concessions adopted by the commissioners are one-half the concessions allowed by the newark, or hoffman rule, in valuing short lots in regular assessments. as evidenced by the result reached in the assessment appealed from, the concessions are inadequate, and i see no reason why the full concessions established by the newark rule should not be adopted. it is not easy to formulate a rule that will do justice in all cases in assessing irregular shaped lots, but i think a fair result would be reached in the case at bar by deducting from the frontage assessment of $ , . a concession of % ($ . ) for the frontage and probable future paving assessment on first avenue; a further concession at the rates given by the newark rule for that portion of the lot under feet in depth ( %--$ . ), less the added value under the same rule for that portion over feet in length ( %--$ . ) net $ . ; total net $ , . ; less such further concession for less than average benefit received by appellant's lot as in the judgment of the commissioners should be allowed by reason of inferior location, value and improvements. as appellant's lot is not assessed for paving liberty square, no concession should be made for frontage on liberty square. for the reasons given, the assessment appealed from should be set aside as to appellant's lot. * * * * * inexcusable delay in presenting a check for payment is held to discharge an indorser from liability thereon if the check is not paid, whether he is in fact injured or not, in the west virginia case of nuzum v. sheppard, s. e. , annotated in a.l.r. . state v. gruich. (essex quarter sessions, dec. , ). _criminal abortion--new trial--postponing sentence days_. case of the state against anne gruich. on application for new trial. mr. frank bradner for petitioner. mr. john a. bernhard, assistant prosecutor of the pleas, for state of new jersey. stickel, jr., j.: anna gruich was tried before this court, judge harry v. osborne presiding, and, on february , , convicted of abortion. the minutes of the court at the foot of the entry of the verdict of the jury contain the words, "sentence postponed." on the rd day of may, , the said defendant was convicted by a jury on a second charge of abortion and, on june , , sentence of both convictions was imposed by judge osborne, the sentences running concurrently. the conviction on the second charge of abortion having been reversed by the court of errors and appeals at a recent term of that court and a new trial ordered, application is now made to this court to grant a new trial on the charge of abortion of which the defendant was convicted on february st, . [here two broad grounds are urged as warranting such action, the first ground involving a question of fact; that part of the opinion is not published. the second ground is that the court, having postponed sentence thereafter to in a new term of the court and without having noted in the minutes continuances of the day of sentence, imposed sentence upon the defendant, the contention being the court then had no jurisdiction to impose any sentence. the opinion continues.--editor]. and i am equally clear that there is no merit in her contention that the court had no jurisdiction to sentence in the april term upon a conviction had in the december term. the theory of the defendant seems to be that, because the minutes do not show that the time for sentence was fixed and then postponed from time to time until the sentence was actually imposed, therefore, no sentence day was, in fact, fixed, no continuance had, and, when the december term expired, the power of the court to fix a sentence day or impose a sentence ended. the sentence file of this court will show that the assumption of counsel is unwarranted, and that a day for sentence was fixed and regular adjournments of that sentence had from time to time until the day upon which sentence was imposed. but, even though we assume that no sentence day was fixed and no continuance in fact taken, the position of counsel in my judgment is unsound. this case is controlled by the principles laid down in the opinion in gehrmann v. osborn, n. j. eq. ; atl. rep. , and by the decision in that case, and even though, as counsel for the defendant suggests, i may not be bound by the decision in that case, the reasoning, the logic and learning thereof is such that i am wholly content to be governed thereby in determining this case, and convinced that the decision in that case represents the law of this state. there, as in this case, sentence was postponed, and, although more than two years elapsed before the defendant was actually sentenced, and, although the original postponement was the practical equivalent of an indefinite postponement of sentence, the court upheld a sentence to state prison. here the sentence was imposed but a few months after conviction, and the postponement was not the equivalent of an indefinite postponement. and, like in the present case, there were no continuances of the sentence recorded in the minutes. "the conclusion which i have, therefore, reached," says vice-chancellor garrison, "in the gehrmann case, is that in the state of new jersey, if a defendant has pleaded nolle contendere, or guilty, or has been convicted upon trial, the court has the power, if the defendant does not object thereto, and therefore is assumed to assent thereto, to refrain from pronouncing a judgment or sentence, and may, at a subsequent time, hale the defendant before it, and impose the punishment in the same manner that it would have been justified in pronouncing upon the very day when the case was ripe for sentence." it will be observed from the opinion that the duty rests upon the defendant to object to an indefinite postponement of sentence; that his failure so to do creates a presumption that he assented thereto, and that his assent or acquiescence to such postponement disenables him to complain when thereafter the court imposes sentence, whether within or without the term in which the conviction is had or plea taken. here not only is there no proof of an objection, but on page of the testimony it appears that the defendant at least acquiesced in the postponement from time to time of the sentence. moreover, just as the research of the learned vice-chancellor convinced him that an indefinite suspension of sentence has been the custom in our state beyond the memory of those then connected with the administration or practice of criminal law in this state, so, from my own experience as a practitioner in and judge of this court do i know that for years it has been the practice to sentence on a given monday after conviction; to sentence periodically all persons convicted or who have pleaded; to enter in the minutes "sentence postponed" in bail cases and prisoners "remanded for sentence" in jail cases and to advise defendant for counsel, or both, in open court of the regular sentence day; for the clerk to make up a sentence list for said day; for the court to use such list in sentencing; for the court to postpone to another day sentences set down upon such sentence day when it so determined, the clerk noting the postponement and placing the case on the new sentence list of the judge, and for the clerk to take the various sentence lists and file them as a part of the records of this court. this practice i find was followed in this case and probably accounts for the repeated attendance of the defendant at the courthouse for sentence. the defendant was convicted on february st and the first sentence day of judge osborne thereafter was february th, . the defendant's name appears upon this list for sentence and a notation is made that the sentence was postponed to march th; the sentence list of march th shows a postponement to march th; that of march th a postponement to april th; that of april th a postponement to may th; that of may th a postponement to may th; that of may th to june th, and on june th sentence was imposed. if there is any question about this and the case is to be appealed, i would suggest that the prosecutor submit as part of the record on this rule evidence of the practice of this court in sentencing, together with the sentence lists of judge osborne covering the period in question. the rule obtained in this case is discharged and the application of the defendant for a new trial denied. in re will of marion. (essex co. orphans' court, jan. , ). _probate of will--signing will "for sake of peace"--burden of undue influence--facts considered_. in the matter of the probate of a certain paper writing purporting to be the last will and testament of elizabeth marion, deceased. on caveat. mr. edwin b. goodell and mr. philip goodell for proponent. mr. paul m. fischer for caveator. stickel, jr., j: i was satisfied at the conclusion of the hearings in this matter that the paper writing purporting to be the will of the decedent had been properly executed, and i was also satisfied that she was capable of making a will; in other words, that she had testamentary capacity; but i had some doubt whether the decedent had not consented to the making of the document in question and signed the same for the sake of peace. being thus in doubt i asked counsel to submit briefs on that point alone, and counsel for the proponent have submitted a brief. counsel for the caveator has not submitted a brief, and, as i understand it, does not intend to submit one. the decedent was a woman between fifty and sixty years old. she had several children, two or three sons and two daughters, as i recall it, and one of the daughters, mrs. appleton, resided, together with her three children, with the decedent, and had done so for sometime prior to the execution of the document in question. the decedent and her husband had lived apart for some years, and the whereabouts of the husband of mrs. appleton were unknown, so that both the decedent and the daughter daily went out to work. the decedent had never made a will. she was not on unfriendly relations with her children, although there is some suggestion that she disagreed with all of them at different times. so far as the testimony shows, she had not indicated definitely to anyone at any time prior to the making of the document in question what she intended to do with her estate. she executed the papers purporting to be her will between five and six o'clock, p. m., on the st day of december, . she died about one a. m., the succeeding day. she received the last rites at eleven o'clock in the morning of the day she made the will. at three o'clock in the afternoon, two or three hours before she made her will, she inquired of her daughter where certain insurance papers were, and, being told that they were in possession of the daughter and that the insurance had been paid, she seemed relieved and said she did not want any trouble over her affairs. the daughter then asked her whether she had a will and received a reply in the negative. the daughter, mrs. appleton, followed this with an inquiry whether the decedent wanted to have things fixed up, and the decedent did not answer her. the daughter, nevertheless, thinking, as she said, that the employer and friend of her mother, mrs. hill, had a will, called up mrs. hill and, apparently, either told mrs. hill that the decedent wanted a lawyer to make a will, or that she had no will and was dying, for, in any event, mrs. hill, shortly after the telephone call, came to the decedent's house with mr. edwin b. goodell, a lawyer of montclair, to prepare a will for the decedent. the decedent was not asked whether she wanted to make a will prior to this time, and did not in anyway, so far as the testimony shows, request the attendance of mr. goodell or anyone else to make a will. when mr. goodell acquainted the decedent with the reason for his attendance, she said she did not want to make a will "tonight," or words to that effect; indicating, as mr. goodell put it, that she would prefer not to make a will that night. at that time there were in the room with the decedent, who was in bed, very sick, a mrs. fischer, mrs. wickham, who was holding her up or propping her up in bed, mrs. appleton, the daughter, mrs. hill and mr. goodell. in an adjoining room was a son of the decedent with his child or children. someone of the persons in the room--the testimony does not agree as to who it was, and it may be that it was more than one--urged and encouraged the decedent to make a will after her remark that she did not want to make one that night. mr. goodell says he did not, although he felt that the decedent wanted to make a will, and that if she did not make it that night she would never make it, because he thought she would die before morning. in any event, a short time after she said that she did not want to make a will that night, mr. goodell inquired of her what she wanted to do with her property, and someone in the room, he thinks it was mrs. wickham--but mrs. wickham says it was not, although all seem to agree that it was not mrs. appleton--suggested that she wanted to leave her house, the one in which she was then living with her daughter and grandchildren, to the three grandchildren. the decedent assented to this. but mr. goodell took the precaution to ask her directly whether she wanted her house to go that way and reminded her it would tie up the sale of the property, because the children were minors. the decedent, in replying to this, said that was what she wanted to do; she wanted it so that it could not be "spent." mrs. hill and mr. goodell agree as to this testimony, and mrs. wickham, the only other person in the room, who was interrogated on this point, said that she had no recollection one way or the other. then mr. goodell inquired of the decedent what she wanted to do with the residue of her estate, and again someone volunteered that she wanted it to go equally among her children. whereupon mr. goodell, having interrogated the decedent, she replied that she wanted the residue to go in that way. mr. goodell's recollection is that the decedent nominated the executor, herself, although he said it is possible that someone else in the room suggested it and that the decedent assented thereto. thereupon, the will having been read, paragraph by paragraph, the decedent and the witnesses duly executed it. the burden of proving undue influence, of course, rests upon the person or persons charging undue influence, and, as was said in the case of schuchhart v. schuchhart, in the fourth syllabi, eq. , atl. : "when undue influence is claimed to be established by inference from certain facts proved, and, upon all the facts proved, an equally justifiable inference may be drawn that the will executed was what testator would have made under the circumstances, the burden on contestants is not supported." see also in re richter's will, n. j. eq. . the inference which the contestants would have the court draw from the facts is that the decedent intended to die intestate, so that her property would go to her children equally, and that her objection to making a will that night indicated her desire to die intestate, for she knew that her end was near and believed that if the making of the will were put off until the next day she would be dead and dead intestate. this is an inference which may be drawn from the facts, but an equally justifiable inference is that the decedent had the all-too-common disinclination to draw a will; that she sought to shirk the responsibility of deciding what disposition to make of her property, to avoid making and executing a will; that when brought face to face with her responsibility she yielded to the advice and suggestions of her friends, and, although originally preferring not to make the will, determined to discharge her responsibility and make the will. in no other way can the statement of the decedent that she wanted to tie up the house, so the children could not spend it, be reconciled. that remark indicated that the decedent had aroused herself to the task of making her will, had overcome her disinclination, determined to perform the duty of making a will and had considered the question of the disposition of her property. it is true that others made the suggestion as to what the decedent wanted to do with the property, and i am inclined to think that everyone in the room knew from talking with the decedent that she wanted to leave her property as she actually did leave it, although there is no direct testimony on this point, but the remark about preventing the children from spending the property was the product of the decedent's own mind; she initiated the remark, and thereby revealed her state of mind, both as to the matter of making a will at all and as to how she wanted her property to go. and it is not strange that she wanted the property to go in this way, for she knew it was her grandchildren's home (and we all know the wonderful love that grandparents have for grandchildren); she knew that they could not depend upon a father for support and upbringing and that their mother was the breadearner. her own children were grown up, married, most of them, and so far as the record shows not to need of assistance. that the devise of the house to the grandchildren is a natural, normal one, is emphasized by her disposition of the residue of her estate, for, having taken care of her grandchildren, assured them of a home during their minority at least, she proceeded to give to her children everything else that she had; and i am inclined to think she believed that the residue of the estate would be much larger than it actually is; that the return she would get from the estate of timothy arnold would be larger than it actually was. it is undoubtedly true that, except for the presence of the lawyer, which was brought about by mrs. hill and mrs. appleton, and except for the advice and encouragement to make a will and at once by those in the room to the decedent, she would have died without a will. but, instead of the presence of the lawyer and the said advice and encouragement dominating the deceased and destroying her free agency, it seems only to have served to arouse in her the necessity for making a will, if she would protect her grandchildren, to re-awaken and revive her apparently dormant and pre-existing desire to provide a home for her grandchildren, to do this and to give her the opportunity to carry out such desire or intention, which opportunity she seized and made the best of, for how else can her response to mr. goodell, that she wanted to tie up the house so that it could not be "spent," "that is what i want to do," be accounted for? certainly acts which produce such a result cannot be said to be acts of undue influence. stewart v. jordon, n. j. eq. - . and it is well settled that it is not the exercise of undue influence to advise, encourage, or urge the making of a will. in re barber's will, atl. ; in the matter of seagrist, n. y. app. div. ; n. y. supp. ; aff. n. y. ; n. e. . mr. goodell, who drew the will, is a reputable and careful lawyer, and i feel sure that he would not have prepared this will or permitted the decedent to execute it except he felt it represented her real wishes. nor do i think he would have permitted her to have executed this document if he for one moment conceived that she was making it for the sake of peace or to be rid of her visitors. that fact must also be considered in determining the question in hand. it seems to me, therefore, that the more probable inference to be drawn from the facts in this case is one which requires the upholding of the document as the will of the decedent and that the contestants have not sustained the burden of proving undue influence. the paper writing purporting to be the will of elizabeth marion is consequently admitted to probate. women jurors. does the right of suffrage entitle women to serve as jurors? this question has been answered in the affirmative in michigan, where it was held, in people v. barltz, n. w. , a.l.r. , that a constitutional declaration that every inhabitant of the state, being a citizen, shall be an elector and entitled to vote, makes women electors within the meaning of a statute requiring jurors to be drawn from the electors, and they are therefore entitled to perform jury duty. this decision seems to stand alone. a contrary conclusion was reached in re grilli, misc. , n. y. supp. , affirmed on opinion below in app. div. , n. y. supp. , which involved the right of an enfranchised woman to compel the board of assessors and the commissioner of jurors to complete the county jury lists by including therein the qualified women voters of the county. the court said: "the only claim made by the petitioner in connection with her application is that jury service is incidental to and a part of suffrage, and since, by the recent amendment of the state constitution, women are qualified to vote, they must be made jurors. the fallacy of this contention is found in an examination of the history of the jury system since the adoption of the first constitution in the state of new york. while citizenship has always been a qualification of jury service, every voter has not been included within the jury lists. the various laws with reference to jurors show that men who were entitled to vote have been excluded from jury service." in illinois, the fact that women are legal voters for the election of statutory officers, and certain other purposes, is held not to make them eligible for jury service in criminal cases, in people v. krause, ill. app. , and people v. goehringer, ill. app. . in virginia, according to va. l. reg. n. s. , judge gardner, in instructing jury commissioners, distinguished between the right to vote and the duty to render jury service, by stating that the former is a constitutional right conferred, while the latter is a legislative duty imposed. he concluded that women cannot lawfully serve as jurors under the virginia statute, which limits that duty to "male citizens over twenty-one years of age," until the legislature so modifies the statute as to make it applicable to "all male and female citizens twenty-one years old." the court, in the wyoming case of mckinney v. state, wyo. , pac. , l.r.a. , seems to have been of the opinion that a constitutional provision that "the rights of citizens of the state of wyoming to vote and to hold office shall not be abridged or denied on account of sex," and that "both male and female citizens of this state shall equally enjoy all civil, political, and religious rights and privileges," did not require that women voters be allowed to serve as jurors. the supreme judicial court of massachusetts, in re opinion of justices, n. e. , answered questions submitted by the house of representatives by holding that, under the constitution of the united states and the constitution and laws of massachusetts, women are not liable to jury duty. the state statute subjects to jury service persons "qualified to vote for representatives to the general court." these words, while broad enough to include women, are held not to do so, when interpreted in connection with the history of the times and the entire system of which the statute forms a part. it was determined, however, that the general court had constitutional power to enact legislation making women liable to jury duty.--_case and comment_. miscellany new chancery rule. the chancery rules have been supplemented by the addition of a new rule numbered a, promulgated january , , as follows: a. all pleadings, proofs and other papers presented to, and all orders and decrees signed by the chancellor or a vice-chancellor or advisory master at the state house in trenton, shall be forthwith filed with the clerk; and all such which shall be so presented and signed at chambers or elsewhere shall be marked filed by the chancellor or vice-chancellor or advisory master (which need only be over the initials of his name and office, and may be done by his official stenographer or sergeant-at-arms at his direction), and all such papers shall be retained by the chancellor or vice-chancellor or advisory master and delivered or forwarded by him, or at his direction, to the clerk with all convenient speed. supplementary proceedings. attention has been called to the bar of bergen county by mr. justice parker to a laxity of practice in relation to supplementary proceedings in cases of judgment and execution, and, as the matter should interest the bar of the state generally we give, herewith, what has been spread before the bergen attorneys: " . originally an attorney or agent could not make the affidavit. westfall v. dunning, n. j. l. . this was changed by statute. p. l. , p. . but it should appear as one of the direct statements in the affidavit that the attorney is the attorney, i. e., "j. s., being duly sworn, says that he is the attorney herein for a. b. the plaintiff," and not merely, "j. s., attorney for the plaintiff, being duly sworn," which is a mere appositive and not a definite statement. " . such affidavits frequently say: "that he has read the foregoing petition, and that the statements thereof so far as they relate to his own acts are true, and so far as they relate to the acts of others he believes them to be true." this, it would seem, is not a compliance with section of the executions act. such an affidavit in chancery was considered in barr v. voorhees, eq. , and held sufficient for an order for discovery, but not for an injunctive order. but it is to be noted that this was under section of the chancery act of (rev. ; g. s. , p. ) which reads "that he believes the contents thereof are true," whereas, section of the executions act requires the creditor or his agent to verify the petition, in which he shall state the amount due on the execution, the return by the officer, _and his belief_ that the creditor has assets, etc. the belief is, therefore, restricted to the debtor's assets and does not apply to the recovery of the judgment or the issue or return of execution. as to these facts, the late chief justice depue said he doubted the sufficiency (at law) of such an allegation. n. j. l. j. - ; frankel v. miner, n. j. l. j. . "there is no difficulty about an attorney deposing from personal knowledge that a judgment was entered, and execution issued and returned, as these things are matters of record; and as chief justice beasley said in westfall v. dunning, n. j. l. already cited: "it is obvious that such a statement could be safely made by anyone who was possessed of the loosest information," etc. he was there speaking of verifying the belief of the _creditor_; under the present act the belief of the attorney may do as well, but the criticism seems applicable to the other allegations also. "the printed forms in jeffery and on some of the law blanks are open to criticism in the above respects, and debtors should not be hauled before commissioners for examination unless the statute is complied with." accident to mrs. emery. mrs. john r. emery, widow of the late vice-chancellor emery, while traveling with friends in algiers, met with an automobile accident about feb. th. the automobile turned over on the edge of a mine shaft, and it is stated she sustained a fracture of both arms. she went abroad oct. th. death of newark's mayor. mayor alexander archibald, of newark, died on feb. th, after an operation for a pressure on the brain nerves. he is said to have been the first mayor of newark to die while in office. he was born in edinburgh, scotland, december , ; was three years of age when his parents came to america. he was a silverware manufacturer in newark. he was elected to the council of newark in ; became city clerk in , and in was elected city commissioner and became mayor. he was a democrat and was talked of as a candidate for governor. his funeral was large and observed generally throughout the city. humor of the law. a memphis lawyer entered his condemned client's cell: "well," he said, "good news at last!" "a reprieve?" exclaimed the prisoner eagerly. "no, but your uncle has died leaving you $ , and you can go to your fate with the satisfying feeling that the noble efforts of your lawyer in your behalf will not go unrewarded." governor's appointments. adam o. robbins, of flemington, common pleas judge of hunterdon county in place of george k. large. henry e. newman, of lakewood, common pleas judge of ocean county in place of william h. jeffrey. marshall miller, of bloomsbury, prosecutor of the pleas for hunterdon county in place of harry j. able. wilfred h. jayne, jr., prosecutor of the pleas for ocean county in place of richard c. plumer. mahlon margerum, member of the state board of taxes and assessment. j. harry foley, secretary to governor edwards, state superintendent of weights and measures. joseph a. delaney, of paterson, common pleas judge in place of william w. watson. joseph f. autenreith, of jersey city, in place of president john j. treacy, resigned, on public utilities commission. austin h. swackhamer, of woodbury, judge of gloucester common pleas, in place of francis b. davis. book received. the nature of the judicial process. by benjamin n. cardozo, new haven: yale university press, . this book is especially welcome just now, after reading judge cardozo's article in the december number of the "harvard law review," entitled "a ministry of justice," which shows that his study of the nature of the judicial process has led him to seek for practical means to correct the errors that have crept into the law in the application of legal principles. this article in the "harvard law review" is in itself the result of his study during his long experience on the bench of the problem he deals with in these lectures on the nature of the judicial process. the book consists of four lectures delivered in the william l. storrs' lecture series in the law school of yale university, . the titles of the lectures suggest the scope of his inquiry. they include: the method of philosophy; the methods of history, tradition and sociology; the judge as a legislator; adherence to precedent; the subconscious element in the judicial process. "any judge," he says, "one might suppose, would find it easy to describe the process which he had followed a thousand times and more. nothing could be farther from the truth." in telling of the study of precedents in arriving at the rule of law to be applied to the decision of cases, he takes up, first, in the introduction, the method of philosophy and inquiries, in what proportions different sources of information shall be allowed to contribute to the result. if a precedent is applicable, when shall he refuse to follow it, and if no precedent is applicable, how does he reach the rule that will make a precedent for the future? "if," he says, "i am seeking logical consistency, the symmetry of the legal structure, how far shall i seek it? at what point shall the quest be halted by some discrepant custom, by some consideration of the social welfare; by my own or the common standards of justice or morals?" and again, he says: "the first thing he does is to compare the case before him with the precedents, whether stored in his mind or hidden in the books. i do not mean that the precedents are ultimate sources of the law, supplying the sole equipment for the legal armory, the sole tools, to borrow maitland's phrase, 'in the legal smithy.' back of precedents are the basic juridical conceptions which are the postulates of judicial reasoning, and farther back are the habits of life, the institutions of society, in which those conceptions had their origin, and which, by a process of interaction, they have modified in turn." in the lecture on the methods of history, tradition and sociology, he shows how the method of philosophy comes in competition with other tendencies which find their outlets in other methods. the tendency of a principle to expand itself to the limit of its logic may be counteracted by the tendency to confine itself within the limits of its history. "very often," he says, quoting justice holmes, "the effect of history is to make the path of logic clear. history, in illuminating the past, illuminates the present, illuminates the future." the law of real property supplies the readiest example of a field where there can be no progress without history, and where "a page of history," to quote holmes again, "is worth a volume of logic." he refers to leading examples of cases in which history has moulded the rules established by precedents and customs, and how the law merchant has not been moulded into a code, but has been expanded and enlarged to meet the wants of trade, and how the course of dealing to be followed is defined by the customs, or, more properly speaking, the usages of a particular trade, or market, or profession, and the natural and spontaneous evolutions of habit fix the limitation of right and wrong. the law of real estate is taken merely as an example. maitland, holmes, pollock and pound, and many others, have pointed out the historical origins and development in the forms of action, the law of pleading, the law of contract, and the law of torts. the historic influences are strong in some departments of the law, and in others larger and fundamental conceptions tend to control the judicial mind, and there is a tendency to harmony of the law of different countries. from history and philosophy and custom he passes to the power of social justice, which he says is the force that in our day is becoming the greatest of the directive forces of the law. it is by the way of history and tradition that he comes to the method of sociology. it is by the common law method of applying old principles to new conditions that courts have been able to preserve the continuity of the law in changing conditions. among the leading cases cited is the bakeries case, lochner v. new york, u. s. , wherein judge cardozo suggested that in this decision the dissenting opinion of justice holmes was the beginning of a new point of view in the dealing with the social welfare, which, he said, has since written itself into law. justice holmes made the remark, "the fourteenth amendment does not enact herbert spencer's social status," and judge cardozo cites later cases in the supreme court to the effect that "a constitution is not intended to embody a particular economic theory, whether of paternalism ... or of _laissez faire_." it was by careful research of the effect of long hours of work for women that the change of opinion was brought about. there is a short and very interesting lecture on precedents that are of doubtful value questioning what ought to be done with them. he quotes president roosevelt's message to congress, december , , in which he says: "the chief lawmakers in our country may be, and often are, the judges, because they are the final seal of authority.... the decisions of the courts on economic and social questions depend upon their economic and social philosophy; and, for the peaceful progress of our people during the twentieth century, we shall owe most to those judges who hold a twentieth century economic and social philosophy and not a long and out-grown philosophy which was itself the product of primitive economic conditions." this aroused at the time, he says, a storm of criticism and betrayed ignorance of the nature of the judicial process, but the author said he had no quarrel with the doctrine that judges ought to be in sympathy with the spirit of their times. yet this does carry us very far upon our road to the truth. the spirit of the age, as it is revealed to each of us, is only too often only the spirit of the group in which the accidents of birth, or education, or fellowship have given us a place. no effort or revolution of mind will overthrow utterly and at all times the empire of these unconscious loyalties. the relation of the law to the economic and social progress is of great importance at this time, and it is well for us to have the help of this thoughtful and suggestive discussion by an experienced and conscientious judge. e. q. k. obituaries. mr. thomas w. randall. mr. thomas william randall, long prominent as a lawyer in paterson, died at his residence at upper preakness, a few miles from that city, on feb. , , after a long illness. up until a few days of his death he expected to live at least through the coming summer, but the final end came with little warning. mr. randall was born at slough, in buckinghamshire, england, about twenty miles from london, near the historic windsor castle and famous stoke pogis church, on june , , and is a descendant of some of the most substantial and oldest families in that locality. he arrived in the united states, with his parents, on june , , sailing from london, and resided first in franklin township, bergen county, and later at hawthorne, in passaic county, until he entered upon the study of his profession. he first studied law in the office of judge hopper, in paterson, and afterwards with messrs. pennington & dewitt, of newark, and also attended the columbia law school in new york. he was admitted to the new jersey bar at the june term of the supreme court in , and, after spending some time abroad, came to paterson and entered upon the practice of law, in which he was actively engaged ever after until his last illness. he became a counselor at the february term, . mr. randall took no active part in politics, and never held a political office; he had no liking for mere partisanship. his practice was large in the orphans' court and in chancery proceedings, as he settled many estates. he was a special master of the court of chancery and as such many matters of reference were heard by him, and always with promptness and efficiency. he was also a supreme court commissioner. he was counsel for many of the old passaic families and for various corporations. in the great paterson fire he lost every thing in his office except what was in his safe. he was an extensive reader of good books and had an excellent memory, a refined taste and the best of habits. he had none of the common vices of the day. for many years mr. randall was a member of the second presbyterian church. he served there on the board of trustees and was also a member of the session. mr. randall served the second church in a legal capacity without cost to the congregation and was always glad to give legal advice to the poor in need of it. he also served for many years on the board of trustees of the new jersey presbytery and was known by every clergyman in that presbyterian body. he was seldom absent at a stated meeting. mr. randall was also the recognized friend of the young men's christian association and his services in legal transactions were also at the disposal of the board of managers. he was counsel for the young women's christian association and served as a member of the investment committee, with other prominent men of the city. when in the people of the people's park district appealed to the late dr. charles d. shaw and the elders of the second presbyterian church for the establishment of a sunday school in that district of the city, mr. randall was one of the most interested members of the session in the movement to that end. through the aid extended on behalf of the plan the sunday school was opened a few weeks after the request was considered, and mr. randall became the superintendent. he frequently referred to that service as one of the happy experiences of his life. later the school movement grew into the establishment of the madison avenue presbyterian church, now one of the most thriving congregations in the city, under the pastorate of the rev. franklin j. miller. mr. randall frequently visited the people's park church and school to note the progress of the work he had a prominent part in starting. he was also interested in the st. augustine presbyterian church, and in establishing headquarters for the colored men on governor street. mr. randall was a christian citizen and was concerned in the welfare of paterson. he was a member of the passaic county bar association, a director of the paterson building and loan association, and was identified with the old board of trade. when the centennial celebration of paterson was held in he was one of the hundred prominent men of the city selected to plan for that big event. for several years before his death mr. randall was a member of the church of the redeemer. mr. randall was specially fond of his native england, and made various journeys to that county. the editor of this journal has special cause to know of his interest in travel and fine qualities as a traveler, having been in his company abroad in , , and , in some of which occasions he extended his trip to france, switzerland, italy, germany and holland; also to ireland and scotland. in he saw the passion play. he was also a frequent visitor to lake mohonk. from its beginning he was a patron and valued friend of this journal, frequently sending to it copies of legal articles from english newspapers and occasionally contributing to its pages. the article we shall publish in our next issue, entitled "a letter to portia," was received from him only a few days before his death, as were some notes concerning the death of his friend, mr. robert hopper, also of the paterson bar. in mr. randall married miss jennie s. perry, a well known and highly esteemed teacher in the paterson public schools, and at one time principal of school number two. mrs. randall died in . there survives one son, edmund brown randall, who is now the judge of the paterson district court. a brother of thomas w., mr. richard randall, also a member of the paterson bar, died oct. , . col. e. livingston price. colonel edward livingston price, for years past a member of the essex county bar, died at his home, bruen street, newark, on february , from a heart attack, after an illness of about one year. colonel price was born in new york city dec. , , being a brother to former governor rodman m. price, and a son of francis and maria louisa (hart) price of new york city. he received his education at dr. cattell's edgehill school, princeton; dr. woodhull's school, freehold, and dr. john f. pingry's school, then in newark and now in elizabeth. he would have gone to college had it not been for the outbreak of the civil war. he entered the union army in april, , when he was sixteen, as second lieutenant of company e, th regiment, new york volunteers, having been unable to get a commission in new jersey. shortly afterward he was promoted to first lieutenant. in this capacity he served from july, , to april, , when major general hooker placed him on his personal staff as ordinance officer of the third army corps, "hooker's division." as ordinance officer he served at the siege of yorktown, va., and during the whole of the peninsular campaign. in august, , he became major of his old regiment, the th new york, which he commanded through pope's campaign in virginia, in the battles of bristow station, second manassas and chantilly. his promotion to the colonelcy of the th new york volunteers took place on february , . he served with this regiment until january, , taking part in the battles of chancellorsville and gettysburg. at the end of the war he studied law with the late u. s. justice joseph bradley, and was admitted as a new jersey attorney at the june term, , but did not become counselor until february, . he also became admitted to the various united states courts. he became, in newark, an active lawyer not only but a strong political speaker and manager, and was long chairman of the essex county democratic committee and, for a time, of the state democratic committee. his ability as an organizer and his forcefulness as a speaker made him a powerful factor in moulding sentiment in party conventions. his tall figure and military bearing added their effect. in the latter years of his political activity he was familiarly referred to as the "old war horse of the democracy." as a lawyer he ranked high in municipal practice. he was counsel for the city of newark and various outlying townships and for many of the boards in newark. in , before he became of age, he accepted a nomination for assembly from essex county and was sworn into office just after he rounded his twenty-first year. he was re-elected in . as a legislator he applied his active intelligence to a study of the needs of his constituents and of the state in general and was the author of many laws now on the statute books. in later life colonel price bought a farm near branchville, sussex county, and spent much of his time there. on june , , colonel price married emma, daughter of william and mary ann marriott of newark. on april , , he was married again, the second wife being frederica theresa, daughter of edward c. and eva elizabeth eberhardt of newark. his surviving children are a son, frank m. price, who lives at the price home, and two daughters, mrs. frances maria josephine spear, wife of edwin m. spear of trenton, and mrs. marion white, a widow, also of trenton. edward livingston price, the eldest son, died three years ago. the eldest daughter, marie louise jones, died in kansas city, mo. mr. charles j. roe. mr. charles j. roe, of the jersey city bar, died in faith hospital, st. petersburg, florida, on feb. th. for some time past he had not been in good health, and he went south the latter end of january to seek improvement. soon after his arrival there he became worse and entered the hospital where he died. in jersey city he had recently made his home, for himself and wife, in the fairmount hotel on the boulevard. mr. roe was the son of charles roe and elizabeth ann (coult) roe, and was born in sussex county, sept. , . his father was the surrogate of that county for three terms ( -' ) and then opened a drug store in newton. the son obtained his preparatory education at chester institute and newton collegiate institute; then entered princeton college and was graduated therefrom in , in the same class as chief justice gummere and ex-judge george m. shipman of belvidere. he then studied law with the late levi shepherd of newton, and became an attorney at the june term, , and a counselor three years later. he practiced very successfully in newton until , a portion of the time having a law partner, mr. frank shepherd; at the last named date, he removed to jersey city. recently he has had, as a law partner, j. haviland tompkins, the firm being roe & tompkins. mr. roe was an advisory master of the court of chancery and supreme court commissioner. his practice was a general one, but he somewhat specialized in chancery work. he was recognized as an able attorney, of scholarly instincts, being learned not only in his profession but in the arts and sciences. he knew some foreign languages and had traveled extensively in europe as well as in this country. mr. roe married margaret, daughter of james f. and sarah (northrup) martin, and is survived by his wife, and his sister, mrs. john r. hardin of newark. transcriber notes: passages in italics were indicated by _underscores_. small caps were replaced with all caps. throughout the dialogues, there were words used to mimic accents of the speakers. those words were retained as-is. errors in punctuations and inconsistent hyphenation were not corrected unless otherwise noted. on page , "complaintants" was replaced with "complainants". on page , "breaking a storehouse" was replaced with "breaking into a storehouse". on page , "b & b" was replaced with "b. & b.". on page , a period was deleted after "essex". on page , " n. y. supp, " was replaced with " n. y. supp. ". on page , "haled" was replaced with "hauled". on page , "christain" was replaced with "christian". on page , "assocaition" was replaced with "association". images of public domain material from the google books project.) the new jersey law journal published monthly volume xlv january, no. editorial notes. at least three decisions of nation-wide import were made by the united states supreme court in december. the first, american steel foundries v. tri-city trades' council we give, probably in full, elsewhere, as taken from the "new york times." it is on the subject of strikes and picketing, and speaks for itself. another tested the law of arizona, which made picketing, etc., that tended to destroy an employer's business, lawful, and the law was held to be unconstitutional, although by a divided court, to . among the dissenters was mr. justice pitney. the main opinion was lengthy and explicit, and we think, fair and just. the third was on the subject of the "open competition" plan by which members of the national hardwood manufacturers' associations believed they were getting around the sherman act, but are now told by the court their practices are in restraint of trade. the association was prosecuted by the government in the federal court at memphis, and a permanent injunction was obtained against continuance of the practices of filing by hardwood concerns of reports of business operations with a central organization, such reports being open to all other members of the organization. the opinion holding the conduct of the members of the association to be illegal was delivered by justice clark. as usual, of late, there were dissents, this time by justices holmes, brandies and mckenna. the meetings of the members resulted in concerted action, justice clarke stated, to raise prices regardless of conditions, and the plan was termed by him "misleading and a misnomer" and "an old evil in a new dress and a new name." he added that instead of a plan to promote open competition it operated to restrict competition. it was futile, he said, to argue that the plan was merely to furnish information which could not be otherwise obtained. the secretary of the association, through an expert statistician, utilized replies to questionnaires and other information furnished by the members of the association as the basis for bulletins and advices. these replies also were utilized in predicting and promoting advances in prices, by withholding of products from the market, awaiting higher prices. * * * * * in the second case referred to in the preceding paragraph the united states supreme court thus laid down the rule as to the "secondary boycott": it is to be observed that this [the case in hand] is not the mere case of a peaceful secondary boycott, as to the illegality of which courts have differed and states have adopted different statutory provisions. a secondary boycott of this kind is where many combine to injure one in his business by coercing persons against their will to cease patronizing him by threats of similar injury. in such a case the many have a legal right to withdraw their trade from the one, they have the legal right to withdraw their trade from third persons and they have the right to advise third persons of their intention to do so when each act is considered singly. the question in such cases is whether the moral coercion exercised over a stranger to the original controversy by steps in themselves legal becomes a legal wrong. but here the illegality of the means used is without doubt and fundamental. the means used are the libelous and abusive attacks on the plaintiffs' reputation, like attacks on their employers and customers. threats of such attacks on would-be customers, picketing and patrolling of the entrance to their place of business and the consequent obstruction of free access thereto--all had the purpose of depriving the plaintiffs of their business. to give operation to a statute whereby serious losses inflicted by such unlawful means are in effect made remedyless, is, we think, to disregard fundamental rights of liberty and property and to deprive the person suffering the loss of due process of law." * * * * * it is with deepest regret that an announcement in our obituary columns in this issue includes the name of ex-justice bennet van syckel as a deceased member of the bar and jurist. those who practiced under him in the circuits in former years, or who knew him as the bright, fully-equipped ornament of the supreme bench, well understand that his passing cuts off the last link between the supreme court of a few decades ago and the court as constituted to-day. justice van syckel was approaching years of age, and many were the hopes that he would retain his health and vigor of intellect until he reached an even hundred years. the courts wherein he sat, and the present older members of the bar will see to it that his merits are officially pronounced; we can only say now that no eulogy to be given to his memory will do him over-justice. his dignity, fairness and sound legal judgment on the bench were such that he deserved even greater honors than he received and his private life was immaculate. an excellent portrait of the justice as he appeared in will be found in the law journal of that year (vol. , facing p. ). * * * * * the following seems almost an impossible propaganda to come even from germany at this time, but especially from one of the sources named. the "pathfinders league," of stuttgart, we assume to be a social (practically soviet) organization, but the "christian young people's societies," must be at least a quasi-religious body. a circular sent out and published by these organizations on july last says: "war is the most exalted and holiest expression of human activity. some day the hour of battle will strike for us, too, when we, as officers, go forth against the enemy. the people, which is a minor politically, will then fall into line of itself. in the days of secret, happy expectation there then goes from heart to heart the cry: 'with god for king and fatherland!' still and deep in german hearts there must live the joy of battle and a longing for it. so, let's laugh to scorn those old women in men's breeches who fear war and wail that it is horrible and criminal. no and again, no! war is beautiful, and it is glorious to die for the fatherland and the hereditary ruling house. our great ally above will lead us splendidly." in new york city there is a municipal ordinance requiring landlords, who are to give tenants under a lease hot water, to furnish it or be arrested, fined and, if thought wise by the magistrate, imprisoned. recently a landlord in the bronx was found guilty of failure to supply hot water, and it appeared that the landlord and tenant had somehow become on unfriendly terms; that there was a special valve in the house which permitted hot water to go to one apartment and to be shut off from another; and that the landlord closed down the valve to shut off the hot water of the complaining tenant. thirty days in prison and a fine of $ was the penalty imposed by the justices in special sessions. * * * * * among the important decisions in the court of errors and appeals in this state on nov. th last was one unanimously confirming the conviction of the negro, george washington knight, for the murder of mrs. edith marshall wilson, the church organist at perth amboy, in march last, which murder the prisoner had confessed. (see n. j. l. j., april, , p. ). although the court was unanimous in upholding the conviction of knight, three of the judges, chancellor walker, justice kalisch and judge black, differed with the view of the majority as to the constitutionality of the mackay act of (laws, ch. ), empowering the court of errors and appeals to review the sufficiency of the evidence in criminal cases, where the defendant elects to take up the entire record. mr. justice kalisch wrote a minority opinion, concurring in the affirming of the conviction but differing with the majority as to the constitutional question involved. chief justice gummere, in the main opinion, said that the statute of was not novel, but is similar to an act passed more than twenty years ago, but subsequently repealed, under which the court of errors set aside a conviction for murder in the first degree. the first ground of attack was that the mackay act violates the provisions of the constitution relative to trial by jury, which provides that the guilt or innocence of a defendant shall be determined by an impartial jury. the court said, however, that the question of the verdict being in accordance with the weight of the evidence cannot be raised by the state, but only by the defendant. therefore, the court held, the constitutional protection afforded by a jury trial is not lessened by the law under which the accused may elect to have the evidence reviewed. the court also held that the right given the court of errors to order a new trial where the evidence seemed insufficient was not a novel proposition, but was rather extending to the reviewing tribunal a power now existing in the trial court; that such an extension of power, provided it does not trespass upon the inherent powers of any other court, is not unconstitutional. having decided the legal questions involved, the court reviewed the testimony upon which knight was convicted and concluded it was sufficient to justify the jury's verdict of murder in the first degree. later, mr. justice bergen, before whom the knight trial was held, resentenced the prisoner to be electrocuted. * * * * * at the convention of the real estate league of new jersey in newark recently, mr. frank b. jess, of haddon heights, whose experience on the state board of taxes and assessment has made him an authority on the subject of taxation, its inequalities and shortcomings, stated with positiveness that the personal property tax is a failure and always will be a failure. "it is obvious," he added, "that if all the taxable property in the state should be assessed at its true value, or at a uniform percentage of true value, the burden of taxation would be apportioned with exact equality. the chief objective of the assessing system of the state, therefore, is uniformity of valuation. it would be foolish to suppose that this ideal can ever be wholly attained. but it is more foolish not to aim at its attainment. the scheme of assessment should be devised with that end in view and so framed as to facilitate its achievement. the prevailing scheme provides as many assessors as there are taxing units. even if each assessor were an expert the grand result inevitably would be a great variety of valuations. as so many assessors are not experts the absence of uniformity is all the more conspicuous." mr. jess said that each assessor or assessing body is now a separate machine, functioning independently in a particular territory. he declared that an assessor should be a part of a system having a central power plant functioning for the entire state. * * * * * after three days of argument by lawyers in the federal case in new york city concerning the intent of and court decisions on the sherman law against trusts, judge hand imposed fines of $ , each on the seven corporations and ten individuals who had pleaded guilty to violating the sherman act. the defendants were those of the terra cotta trust, and included companies in new jersey, at perth amboy and rocky hill. nearly at the same time judge van fleet, so well known as a jurist of california, but descended from an old new york and new jersey family, did better as to real justice with four members of the tile and mantel trust, who also had pleaded guilty to violations of the sherman law, by sentencing three of them to pay a fine of $ , each and to spend four months in prison, and the fourth to pay a fine of $ , and to spend two months in prison. there were also fines on others. the fines on all members of the combine aggregated nearly $ , . it is clear that only by heavy fines with imprisonment added can the sherman law against widely-extended and injurious trusts be made to act as a deterrent of such trusts in the future. * * * * * the attorney-general of the united states, in an address at the last meeting of the american bar association in cincinnati, gave, as suggestions, six rules for the handling of labor disputes. they were: "first--it is an undisputed fact that the public have a right to know what the quarrel is about in every actual or threatened strike or lockout and similar controversies. "second--there should be some definite agencies in government for ascertaining these facts fully and making an impartial finding by those specially qualified both by temperament and training to do this particular kind of work; and such finding should be reported so that it will be a reliable source of knowledge to which students and publicists and statesmen can resort. "third--compulsory jurisdiction over these two factors to compel them to submit to an inquiry of this sort is not only desirable but just. "fourth--at present our study of this question has not been sufficiently thorough to warrant legislation compelling the acceptance of such findings by the parties thereto. therefore, the jurisdiction of the proper agency should be obligatory upon the parties to submit to the investigation; the acceptance of the finding by the parties should be voluntary. "fifth--the experience of the past shows that in most cases full, accurate, reliable publicity has been sufficient to compel an adjustment of these cases. public sentiment is a controlling factor and it is important, in justice to both of the parties, that it should depend upon something more accurate than successful propaganda. "sixth--in the course of time knowledge of the nature and causes of these controversies derived in this way may crystallize public sentiment to the extent that laws can be enacted making such controversies impossible." it will thus be seen that mr. dougherty does not favor obligatory arbitration in the case of labor disputes, his view being that public sentiment will decide them. but we have always been clear in our own mind that there must be compulsory acquiescence in the findings of whatever tribunal hears such disputes; otherwise one party or the other will, too often, not acquiesce. * * * * * in a recent chancery case, where an injunction had been ordered by the court restraining a corporation from doing anything while the matter of a permanent receivership was under consideration, a voluntary petition in bankruptcy was filed. in proceedings against certain officers of the corporation for contempt in thus disobeying the injunction, chancellor fielder suspended sentence upon the ground that, as a mitigating circumstance, they had been badly advised, and said: "i think that the conduct of counsel in the case was absolutely reprehensible. counsel was bound to know the law, and if he did not know the law, he ought to have had common sense enough to know that an order of this court restraining any act of the corporation was sufficient to forbid the filing of a voluntary petition in bankruptcy. if the order to show cause had been directed to counsel i think i would find him guilty of contempt of court, and i don't think that any mitigating circumstance could be offered in his behalf." * * * * * our readers are receiving this month, in addition to the usual charming article by former judge frederic adams, a fourth of july oration delivered by mr. justice parker of our supreme court in the church of st. mary's-by-the-sea, northeast harbor, maine, two and a-half years ago. because this address is not recent gives special reason for its publication now. we only learned recently of this address and, after seeing it, requested of the judge the privilege of publishing it in the law journal, a request finally granted. it seemed to us not only that the general matter and fine, clear statement of facts and elevated american sentiments warranted the preservation of this address, but also that our readers might be interested to compare what some of our best minds thought of events at the close of the treaty at versailles and what has really happened since in american and world affairs. some reminiscences, mostly legal. by hon. frederic adams, los angeles, cal. iii. anecdotes of the harvard law school and of its famous triumvirate. i have on my shelves a beautiful book. "the centennial history of the harvard law school," - , published by the harvard law school association, . this work, of about four hundred pages, has been written and compiled by the faculty, with the assistance of graduates. it is admirably printed on excellent paper and liberally illustrated. the whole story of the great school is spread before the reader: its modest beginning; its golden age of story and greenleaf; the sedate and conservative era of the triumvirate, parker, parsons and washburn, in which my own lot fell; and then langdell, the apostle of a new idea, and his many brilliant and interesting followers. the centre of gravity has been shifted from the text-book to the case and this is philosophical, for evidently the cases are the original evidences of the law. but the idea of taking up what thackeray calls "the vast legend of the law" as a direct subject of study was so revolutionary that it won its way very slowly. i quote from the "centennial history" a spirited sketch of professor langdell's opening, and of the early history of the new system: "the day came for the first trial of the new method of study and teaching. the class gathered in the old amphitheater of dane hall--the one lecture room of the school--and opened their strange new pamphlets, reports bereft of their only useful part, the head-notes! the lecturer opened his. "'mr. fox, will you state the facts in the case of payne v. cave?' "mr. fox did his best with the facts of the case. "'mr. rawle, will you give the plaintiff's argument?' "mr. rawle gave what he could of the plaintiff's argument. "'mr. adams, do you agree with that?' "and the case-system of teaching law had begun.... consider the man's courage.... langdell was experimenting in darkness absolute save for his own mental illumination. he had no prestige, no assistants, no precedents, the slenderest of apparatus, and for the most part an uncompromising _corpus vile_. he was the david facing a complacent goliath of unshaken legal tradition, reinforced by social and literary prejudice. his attempts were met with the open hostility, if not of the other instructors, certainly of the bulk of the students. his first lectures were followed by impromptu indignation meetings. 'what do we care whether myers agrees with the case, or what fessenden thinks of the dissenting opinion? what we want to know is: "what's the law?"' "a controversy at once sprang up as to the efficacy of this method of instruction. to most of the students, as well as to langdell's colleagues, it was abomination. the students cut his lectures; only a few remained. but these few were the seed of the new school. they included several men who afterward attained national reputation: james barr ames, his greatest pupil and successor; franklin g. fessenden, member of the superior court of massachusetts; austen g. fox, a leader of the new york bar; edward q. keasbey, of new jersey; james j. myers, speaker of the massachusetts house of representatives and one of the leaders of the boston bar; and francis rawle of philadelphia, a president of the american bar association. working out his cases with these enthusiastic young men, patiently and thoroughly as he always worked, langdell did nothing to force upon others the acceptance of his system. in a few years ames was appointed to the faculty, and brought youth, fire, virility into the contest; but for many years the two were alone in their use of the new method. it was ten years before others acceded to it." the fact was that something had to be done. the school was on the down grade. i state this no more strongly than the history does at pages to . this was the natural result, i think, of an extremely inefficient method of instruction. nothing could be less effective than a series of lectures which no one was bound to attend, without recitations or examinations, so that it was possible for a student to receive his degree after a year and a half of residence without learning any law. such a system might do for very zealous and ambitious students, but not for a large class. that the school held up its head as long as it did was due to two things: the _genius loci_, which counted for a good deal, and the personal influence and example of the professors, who were superior men. i write with the reserve proper to one who is considering an educational policy of which he has had no personal experience, but it seems to me that, in the last analysis, professor langdell's new idea was this: to rouse, develop, discipline and cultivate the judgment, and so, as far as possible, to equip each student with that valuable attribute, easily recognized but hard to define or describe, which is called a legal mind. it is judgment that does it. a mechanic of good judgment is already half a lawyer; an attorney of poor judgment will always remain in the apprentice class. i am reminded how i first saw langdell's name. after i left the law school i was for a time a member of the new york bar. as i went upstairs to my office at no. wall street, i would see above me, at the top of the next flight, the sign of a law firm, pierrepont, stanley & langdell. i knew about pierrepont, who was a yale man of the class of , and i somehow got the idea, perhaps unjust to mr. pierrepont, that one of the junior partners was an erudite man who acted as purveyor of legal ideas to the head of the firm, somewhat as sydney carton did for mr. stryver in "a tale of two cities." the selection of mr. langdell as a professor was due to the sagacity of president eliot. an interesting and valuable part of the history is a biographical list of the ninety-one men who were teachers in the school during the century covered by the book. one of the names is that of justice francis j. swayze, of the new jersey supreme court, who began in the centennial year, , a course of lectures on legal ethics, which he continues. i now go back to my own time at the law school. there was a small jersey group there. nehemiah perry, henry young, job h. lippincott, abram q. garretson and john r. emery were men who, like othello, "have done the state some service." when vice-chancellor emery passed away, i became the only survivor of the little company. professor joel parker, as i knew him, was a courteous gentleman of the old school, sixty-nine years of age, _tenax propositi_ public-spirited, courageous and combative, who had established a high reputation as a jurist by his opinions as chief justice of new hampshire for fifteen years. as a conservative whig he had supported the compromises of , but presided over a meeting of the citizens of cambridge, held june , , to denounce the assault on senator sumner. the conclusion of his speech on that occasion showed the mettle of the man. "for myself, personally, i am perhaps known to most of you as a peaceful citizen, reasonably conservative, devotedly attached to the constitution, and much too far advanced in life for gasconade; but, under present circumstances, i may be pardoned for saying that some of my father's blood was shed on bunker hill, at the commencement of one revolution, and that there is a little more of the same sort left, if it shall prove necessary, for the beginning of another." the professor had a true instinct. the attack on senator sumner was the first act of civil war; the john brown raid the second; the firing on fort sumpter the third. professor parker, when chief justice of new hampshire, had a memorable struggle with judge story, who held the united states circuit court, over a question under the bankrupt law. the facts are stated on pages and of the history of the law school. in my time it was thought that professor parker did not like story, or story's rather showy law books. he probably would have agreed with the following remarks on page of the history: "story was the kindly master who, in his lectures, smoothed the rough places and was profuse with instruction and help. we may suppose his lectures, like his books, to have been learned, fluent, often original and profound, sometimes, however, dodging a difficulty rather than trying to overcome it." i have heard it said that story stands higher as a writer of opinions than as a legal author. there was in my day a student named stevenson who was assigned to argue one side of a moot court case before professor parker, sitting as judge. stevenson, who knew and well understood the professor, in the course of his argument read a few sentences from one of story's books and then, pausing and looking at the judge, said: "may it please your honor. there follows this passage about half a page of latin. i have not read it, but it looks as though it were on our side." professor parker, during the war for the union was _pro_ the administration _saepe_; _pro lege, pro republica semper_. he had, of course, profound reverence for the writ of habeas corpus. a student once stated a strong case of treasonable conduct and asked him if he would not suspend the writ in such a case. "no, sir," said the professor, "i would not suspend the writ of habeas corpus, but i would suspend the corpus." professor theophilus parsons was a son of the great chief justice of massachusetts of the same name. he was sixty-six years of age when i knew him, a man of the world who had touched life at many points, a voluminous writer of law books and an instructive and entertaining lecturer. there was a side to his nature which he did not show to his class. i used to have among my books a small volume of sublimated swedenborgian doctrine written by him. it was difficult to associate it with the genial and jovial man you saw in the lecture room. i have tried to assimilate this message from the new jerusalem, but have failed, no doubt because of some invincible ignorance and innate incapacity of my own. professor parsons saw something of europe after graduating from harvard in , and i think was at st. petersburg with william pinkney, then american minister, when the grand-duke nicholas, who was afterwards emperor, was married to a prussian princess in july, . he described mr. pinkney as coming in from the ceremony in a real or affected huff, and complaining, as he tore off his gloves, that a beggarly grand-duke had obliged him to get up at eight o'clock in the morning. "but, mr. pinkney," said parsons, "the wedding was not until twelve o'clock." "true, sir," said pinkney, who affected to be a man of fashion, "but can a gentleman dress in less than four hours?" professor parsons wrote an interesting life of his father, who was an old-fashioned colossus of the common law. indeed, the chief justice took pretty much all knowledge for his province, and was a classical scholar and good mathematician. i moved, or was moved, at the early age of three months, from my birthplace in new hampshire to the parish of byfield, massachusetts, near newburyport, and lived there for seven years. the father of chief justice parsons was a congregational minister and pastor of the church in byfield for more than forty years. when i visit byfield, as i love to do, i read upon a tablet on the parsonage lawn "birthplace of theophilus parsons." the chief justice had an extraordinary knowledge of the early history, laws, institutions, manners and local usages of the settlers of new england. i had among my law books one that used to remind me of him. a young lawyer once asked him what was the best law dictionary. "kinnicum's is the best," was the answer. a few days later, the young man said to him, "i have asked everywhere for 'kinnicum's law dictionary' and cannot find it." the chief justice laughed and said: "ask for cunningham's." the book which i had was cunningham's "law dictionary," in two folio volumes. a similar incident is told of judge story, who was also a 'longshore man, born in marblehead, a place which abounded in local peculiarities, as we know from whittier's version of "flud oireson's ride." judge story was opening the circuit court of the united states at salem, and the clerk, as he went over the panel, called "michael treffery." no answer. "michael treffery!" no answer. "that is strange," said the clerk, "i saw the man here a few moments ago." "let me see the list," said the judge. he glanced at it and said, to the clerk, "call michael trevay." the clerk: "michael trevay." "present," said a juror. the clerk: "why did you not answer?" "you never called my name." mr. parsons, before he became chief justice, was sitting in his house at newburyport one sunday morning, when a client and friend, who lived at salem, was announced and said: "mr. parsons, i beg your pardon for making a call on sunday. i would not do it if it were my own matter, but the case is that i am guardian for some minor children and a matter of importance to them is coming up in the probate court at salem to-morrow morning. i have had no opportunity to get advice and so i have taken the liberty to ask your counsel." "never practice law on sunday," said parsons. "why, of course i understand that," said the other, but i thought that perhaps, under all the circumstances, you might be willing to aid me." "never practice law on sunday," said parsons. "good day, mr. parsons, i am sorry to have troubled you." "stop a minute," said parsons, "do you want advice as to the moral aspect of the case or as to the legal aspect of it?" "why, as to the legal aspect, of course. i am satisfied that my position is fair and right. i want to know whether it will stand law." "well, now, i will tell you," said parsons, "i don't know anything about your case and i don't want to hear anything about it, but i know you, and if you think that your position is fair and just you may go ahead on that and i will be responsible for the law." someone asked him, when he was chief justice, if it were true that he never lost a case while he was at the bar. "yes," said the chief justice, "that is true. i never lost a case, but my clients lost a great many." chief justice parsons, because of his preoccupation with his thoughts, was sometimes careless about his dress. he was a clubable man, to use dr. johnson's phrase, and some of his intimate friends thought that in a genial hour a useful hint might be given him. so it was arranged that mr. harrison gray otis should invite the group to dinner and manage the matter. mr. otis was the one to do it, for he was a man of taste, quite "the glass of fashion and the mould of form," of great personal elegance and public distinction, and a graceful entertainer. accordingly, the plan was carefully staged, and during the dinner the conversation took a natural turn toward social customs, usages, modes of dress and the like, and finally mr. otis, in a natural way, but with some distinctness, said: "for my own part, i always put on a clean shirt every day." the chief justice, who had apparently been giving his undivided attention to his dinner, here looked up and said: "why, otis, what a confoundedly dirty fellow you must be! i can wear a shirt for a whole week." jeremiah mason told of a professional conference between himself, when quite a young man, and mr. parsons before he became chief justice. among the elements in the case was a conveyance of parish land by a clergyman, and its nature and effect were under discussion. mr. mason suggested that it might be held to be a covenant to stand seized. mr. parsons turned to him quickly and said: "mason, i like that; that is a good idea of yours; in the relation between a clergyman and his parish there is some analogy to that between a man and his wife." mr. mason, in telling the story, said: "i didn't know, or had forgotten, that a consideration of blood or marriage was necessary to support a covenant to stand seized, but i said nothing, and as soon as i got home i took down my books and began to study the subject, and found the blood spurting out between the very lines of the page." it is grateful to recall the remaining member of the triumvirate, professor emery washburn, for he was an enthusiast, an indomitable and joyous worker at the age of sixty-three. i do not say that parker and parsons were not enthusiasts in their own way. they must have been so to accomplish what they did, but neither parker nor parsons manifested and imparted the contagious enthusiasm about their daily work which carried washburn and the class with him along the arid path of the law of real estate. he was always busy and always accessible and perhaps, on the whole, the most useful member of the triumvirate. he had been a leader of the very able bar of worcester and governor of the commonwealth, and was the author of valuable law books, with which the profession is familiar. i had a piece of good luck with him in my first and only moot court case. as i stood up to open the case, professor washburn, sitting as judge, said: "mr. adams, instead of reading the printed case, suppose you just state the facts in your own way." it happened that i was about to ask him to let me do that and was already prepared. so i came off with flying colors and probably got more credit for readiness than i deserved. i quote from the "history" at page : "in describing his first official visit to the law school, late in , president eliot speaks of knocking at the door of washburn's room and, entering, received the usual salutation of the ever-genial governor washburn. 'oh, how are you? take a chair,' this without looking at me at all. when he saw who it was, he held up both his hands with his favorite gesture and said, 'i declare, i never before saw a president of harvard college in this building. then and there i took a lesson from one of the kindest and most sympathetic of teachers.'" there is, however, historical proof that on at least one prior occasion a president of harvard was in dane hall. john quincy adams one day mounted his horse at quincy and rode over to cambridge to see president quincy, who greeted him and pretty soon suggested that they call on judge story in his lecture room. the two distinguished visitors were gladly welcomed and were installed by judge story, one on each side of him, and he, at their request, proceeded with his lecture. both of these eminent gentlemen were stoics. president quincy went through the new england winters without wearing an overcoat, and mr. adams, when at washington, used to swim in the potomac and light his own fire in winter and, i believe, read a chapter of the old testament and a chapter of the new testament and wrote in what henry clay (who had been tripped up by mr. adams on some question of fact) called "that infernal diary of his in which he has put down everything that has happened since the adoption of the federal constitution"; and all this before breakfast. as judge story proceeded with the rapid and even flow of his lecture, he became aware of a smile upon the faces of his class. a quick glance to either side of him explained it, and, with a cautionary gesture and in a confidential tone, he said: "young gentlemen, you see before you two melancholy examples of the evil effect of early rising. always remember that it is of a great deal more importance to be awake after you are up, than simply to get up early." there is another story which does not relate to the law school, but which i will venture to tell, both as a picture of early cambridge days, and as a manifestation of harvard scholarship under adverse circumstances. there was then no harvard bridge and no horse-car line, and, when the culture of cambridge went to boston to hear emerson lecture in the winter evening, the best available vehicle was a large, open, four-horse sleigh, owned and driven by a liveryman named morse. on one such evening the lecture was over, and the return trip was on and so was a fine, powdery snowstorm. the sleigh proceeded across the cambridge bridge and then through east cambridge and so to cambridge, stopping now on one side of a street to discharge passengers at a small house, and now on the other side at a big house, and so on, and the fine snow kept sifting down and morse, perched high up in front, was growing more and more ghostly, when out from the sleigh rose the voice of james russell lowell, intoning a fragment from horace, adapted so as to embrace the charioteer of the sleigh: "_pallida mors[e] pulsat pede pauperum tabernas regumque turres_," which conington translates: "pale death, impartial, walks his round; he knocks at cottage-gate and palace portal." i have found both pleasure and profit in reviewing these associations, especially the memories of our wise and friendly teachers, and of fellow-students who were soon to be entrusted with the grave interests, the sacred issues of life, liberty and property. as experience and observation widen, one realizes how thin is the crust which separates civilized society from the elemental fires below, and comes more and more to value influences which preserve and institutions which stabilize. such an influence, such an institution is the harvard law school. such an influence, such an institution is the brotherhood of the bar, indissoluble save by death or dishonor. [_to be continued_] our third birth of freedom.[ ] by justice charles w. parker. [ ] fourth of july address at the church of saint mary's-by-the-sea, northeast harbor, maine. published herein by request of the editor of the law journal. see "editorial notes." the exercises of to-day are a revival, temporary perhaps, but still a revival, of the good old custom of celebrating the anniversary of the declaration of independence by public meetings, with prayer and song, the reading of the declaration, and a patriotic address. it was a good custom, though it tended to foster some erroneous ideas, particularly that england as a nation was blameworthy in revolutionary times, rather than the political machinations of george iii, the politician king. but it was a good custom for all that, and it is regrettable that it gave place to noise and fireworks. in the more recent years the date has been significant of other great crises in our history than that of revolutionary times. that was, of course, the greatest of all, and never to be forgotten, as it marks the definite transition of thirteen colonies into thirteen states, organized for war purposes as a nation. there had been over a year of war, beginning with the skirmish at lexington and the british retreat, followed quickly by ticonderoga, bunker hill, and the investment of boston. during the fall and winter there were the episodes of the burning of portland; the capture of montreal (later relinquished); the capture of norfolk in december; arnold's heartbreaking expedition to quebec through maine forests in the dead of winter; the battle of moore's creek, n. c., early in , called the "southern lexington," and, to crown all, the evacuation of boston. these events and their concomitants, say the historians, made inevitable the declaration of independence, though the struggle began only as one for greater colonial self-government and modification of the taxing system. it was our first "birth of freedom," which has been re-born more than once since. i said the date marked other great crises in our history, and take time to mention two of them, both in the memory of living men. the first, and the greater, was in the midst of our civil war, when the news of the twin victories of gettysburg and vicksburg flashed over the land. dark days were still to come, and men were still discouraged; the war was to be proclaimed a failure by a great political party, but the power of the rebellion was broken, and, after july , , the setbacks to the cause of nationality were but temporary and comparatively insignificant. a second great crisis was safely passed. the third great independence day, great for what it brought to others than ourselves, was thirty-five years later, when the tremendous news came that the spanish squadron, practically all remaining efficient of spain's navy, had been destroyed off santiago. that day marked the downfall of spanish power on this continent, and the liberation of oppressed peoples in both hemispheres; the culmination of a righteous war against a civilized and honorable foe, whose principal shortcoming was a hopelessly antiquated point of view and inability to deal intelligently with modern conditions. these great anniversaries all marked the definite passing of crises; the present one rather falls within a protracted period of crisis than marks the passing of one. if we were to celebrate the anniversary of the greatest crisis of recent times, i should name july th, , when, as most of those here will remember, the glad peals of the bell above us sounded the news that the great allied offensive had opened. of this more in a few minutes. but july as a date does not even mark the signing of the peace treaty. it is suggestive, however, of two things to be borne in mind at this time: the genius of our country as a lover of liberty and fair play, and the relation of that genius concretely to the problems of the recent past, and the present, and the immediate future. the announcement of such a subject gives me pause, for it is one for mature consideration and careful discussion by the best of statesmen. but there are some considerations, rather obvious perhaps, but still worthy of inclusion at this time, which i should like to present. i mentioned a moment ago our love of liberty and fair play. with these goes a constitutional tendency to mind our own business, let other people's business alone, and to avoid interference until convinced of its necessity. until we felt secure on our own continent, gave no offense and sustained none. fearing no war, we deemed preparation a waste of money and time; we were not disposed to pay expensive insurance premiums when our house was too far removed from others to be in danger of conflagration; against internal incendiarism we thought ourselves guarded. the warnings of manila bay in and venezuela a few years later made no impression. confident of our ultimate resources, we assumed no one would attack to court ultimate defeat; and above all, fair-minded ourselves, we were utterly incredulous of unfair-mindedness in others. wise and farseeing men gave warning from time to time, but the impressions were momentary. and so, when in the assassination at serajevo was quickly followed by an impossible ultimatum, and this in a very few days developed into a general european war, while our minds and souls revolted at a great injustice, our continental habit of thought resisted the suggestion that we should interfere to right that wrong. we did not see far enough; there were those who did; and i heard two wise men, summer residents here, agree in this very town in august, , that this nation should take part, and at once. but public opinion did not run in that channel; nor was it led into it by our chosen rulers. these also were shortsighted, however their vision may have been clarified subsequently. we were told that a people should be neutral in thought as well as in deed; and so we stood by and watched belgium, a neutral country, ravaged and pillaged; france invaded and destroyed; serbia depopulated; russia crushed. a great crisis like the battle of the marne stirred men's souls, but without bringing home to us as a nation the ultimate danger to our liberty. the consummate outrage of the "lusitania" made an impression never effaced, but the rising indignation of the country was met with the caution that "a man may be too proud to fight," and this crisis passed over also. but the great giant was stirring in his sleep. trumpet calls came from men high in public esteem, among whom it is sufficient now to mention roosevelt and leonard wood. "preparedness" was their reveille. our young men heard it, and in at plattsburgh, and i think elsewhere, sprang up the training camps. the colleges offered their facilities; and although in the fall of there was still, as in and , a large proportion of "peace-at-any-price" men, so large in as to permit the election of a president on the party slogan "he kept us out of war," the time was fast growing ripe. infatuated germany, confident of victory in europe and of later victory on this continent, or risking all on the submarine issue, went a step too far, and the giant woke up. woke up,--yes; but about as helpless as gulliver on the island of lilliput. the "man mountain" was tied fast with the cords of unpreparedness, red tape, departmental inefficiency, official jealousy and hostile intrigue. as in , in , in and in , there was little or nothing ready; all had to be created. the lowering of the thunder-cloud had been unheeded. we had some destroyers and battleships and cruisers; these were sent at once where most needed. but to our shame, be it said, we had no trained men except the little regular army; no great guns; no appreciable number of field pieces; no machine guns; no small arms even, although our . cal. springfield rifle is justly pronounced the best small arm in the world. i have shot it and know it well. they cost at that time about fifteen dollars apiece. a million of them would have cost million dollars, a sum which in these days makes us laugh at its insignificance; it is one-half of one per cent. of our first liberty loan. we had not even the special tools to make barrels for these small arms in quantity, and actually had to use english tools to make english type rifles, greatly inferior to our own, to get any at all for our men. the other day i saw it announced with pride in the newspapers that our rifle had won in competition over all others; but we did not have them when wanted, and probably have not made them yet. we had no field pieces to use abroad, and our artillery was equipped with the french . . a few naval guns were landed and mounted toward the termination of hostilities. the aeroplane scandal is known of all men. and it was a year after we declared war before we entered europe in force, and equipped then with english rifles and french field guns; and our men were transported to europe mainly on british ships. but in this trying period several things stand out clear and bright, and as inspirations for the future. two are psychological: the spirit of americans of alien descent, and the participation of our great educational institutions; one, official as well as psychological, the selective service draft. the patriotism of the native american of the old stock goes, of course, without saying. the true ring of our heterogeneous population of foreign extraction was to many a joyful surprise. that so many who had never seemed to amalgamate with our customs, were largely uneducated, and did not even speak our language, should respond so willingly and gladly to the call to the colors, was a source of some amazement. not being in their confidence or intimacy, many of us little realized their loyalty: which reminds me of an italian bootblack who in conversation told me that he wished to travel. i spoke of the beauties of naples and sorrento and that neighborhood, and was rather abashed when he said: "yes, but i would rather see my own country first." i hope that lesson will always be fresh in memory. the same spirit of americanism marked all nationalities, not excepting the german. the lists of draft registrants from, let us say, the east side of manhattan borough, reminded one of the epistle for whitsunday: "parthians, and medes, and elamites, and the dwellers in mesopotamia, and in judæa, and cappadocia, in pontus, and asia, phrygia, and pamphylia, in egypt, and in the parts of libya about cyrene, jews and proselytes, cretes and arabians," all heard, and, with the deep realization of newly liberated peoples, showed themselves proud to answer the call. a recent war or liberty loan poster is most suggestive. you read on it a list of men's names, mostly unpronounceable, and suggestive, in the language of the same scripture just quoted, "of every nation under heaven," and this is summed up in the phrase, "americans all." truly, a fitting tribute to our adopted citizenry, equal in loyalty, bravery, and self-sacrifice to the best of the old americans. among them, as just noted, the german names stand out boldly. they are so numerous, in fact, as to attract less notice in this country than they deserve; let us hope that they will be noticed and taken to heart in the misguided country where such names originated. i would that our american army, made up in large part of such men, could occupy germany for a time as it formally occupied cuba, for its own good, and give a much needed object lesson in the theory and practice of free institutions. these men, as i have said, were largely uneducated. i turn now for a moment to those in our great seats of learning, and to the heads and faculties and trustees of those institutions. their stand was doubtless one to be expected, but is still worthy of remark. that the best blood in england suffered the most losses i think is conceded. that would have been the case with us if the war had broken on us as it did on great britain. as it was, our boys courted the posts of danger--aviation; submarine chasers; balloon observation, and so on. some left college to enter the service; others stayed at college awhile, but in order to train and perfect themselves in the art of war. the colleges themselves became military schools; the dormitories barracks. for a short time some anxious mothers held back, and it is little wonder that they did. but it was not for long, and soon the woman who could wear a pin, with one, two, or more stars in it on her bosom, gloried in it, while she who wore a star of gold, in all her grief still cherished the solemn pride, as lincoln called it, of having laid so costly a sacrifice upon the altar of her country. whether the son was a student or ploughboy, a bootblack or factory hand, or the son of a millionaire, the feeling was the same. in fact, there was a tendency at first among the people at large to suspect the well-to-do and moneyed classes of holding back their sons. this soon wore off; and one of the most inspiring as well as instructive sights i ever saw was on this very island; the parade of war mothers on the bar harbor fair grounds; women in all walks of life, some with gold stars on their badges. college presidents who encouraged the entry of students into military service came in for adverse criticism, but that soon passed, and now that college, the largest percentage of whose students and graduates went into the service, points with the greatest pride to its record in that respect. i think, however, that the greatest achievement of the war, and the one that makes most for the future safety of our country, is the success of the selective service draft. all the books ever written, all the lectures ever delivered, attacking the pacifistic tendencies of our people, fail to accomplish anything of consequence in comparison with that achievement. whether our people have undergone a great psychologic change i know not. it is certain that at no time previously had they submitted willingly to be drawn into service. for a century and a quarter militia and volunteers were the basis of the armed power on land. during the civil war drafting meant riots. during all our prior history bounties for enlistment were an accepted fact. some of us may have looked into general upton's great book called the "military policy of the united states." until recently it was withheld, for some reason, from general publication. it is the basis of a later work by another author, "the military unpreparedness of the united states," which appeared about . both exhibit in startling fashion the fundamental evils of volunteering and bounties. but not until the stress of this great war did the old theories give way. we had a real man as provost marshal general, and his name is enoch h. crowder, and my own university (princeton) and others as well, honored themselves recently by conferring the ll.d. degree on him. i care not whether he evolved the draft machinery himself or whether it was suggested by others. probably it was a result of both processes; at least he knew a good thing when he saw it, and, like other large men, was unconcerned about whose idea it was. here was the problem: several million men of age to to be listed, with particulars about them; those available for military service to be selected; from these, a certain number to be drawn by lot. the system used in the civil war was hopelessly inadequate; army officers could not be spared to supervise the lists; how were the names to be obtained? how recorded? how drawn? the origin of the fundamental plan was told me by general crowder himself on the day when he received his princeton degree. he said that he was in his office racking his brain for a method of registry that would not take a year to operate, when a congressman came in, and to him he told his difficulties. the interview terminated much like that of alice in wonderland and the caterpillar, who told her how to change her height as it crawled off through the herbage. as the anonymous congressman was going out through the door, he said over his shoulder: "if they can elect a president in one day, they can register in one day." let us thank god that the general had good ears, and excellent communication between them and an active brain. "elect in one day"-- states; each with so many counties; each county having so many municipalities; each municipality so many election districts; civil, not military, officers for all of them; officers known to and knowing the people; governors; mayors, election boards. _why not_? here is the machinery ready made, and at hand! all that is needed is to get it going. forty-eight governors responded enthusiastically; all forty-eight kept the great secret ready to pass it on to local officials; the result we all know. two other things were needed; the willingness of those that were of draft age to come and say so; and the confidence of the public in a fair drawing. the latter was secured by the use of master numbers applicable to every district; the former came naturally as a result of the system itself. every man of draft age became qualifiedly a volunteer, and marched to the polling place, saying: "here i am when wanted." to this the abolition of bounties and substitutes, the curses of the old system, largely contributed. these are three of the great things for which we should give thanks on this fourth of july: the solidarity of americanism; the leadership of our universities, and a practical and popularly acceptable method, now a precedent for all time, of calling up the man power of the nation. a fourth is the resultant of them all: a great army of young men (as has been said many times), future leaders in political life, keenly alive to the real freedom of our american system and determined to uphold it and to stand no nonsense about it. but for the consciousness of our possessing this element, and but for our faith in it, we might well look with most anxious foreboding at many troublesome and dangerous questions now uppermost in our national life. for in the midst of triumph sounds the note of anxiety--many discordant notes in fact. will the treaty finally be ratified? will peace last? will the germans respect their promises and fulfill them? or will they, already talking again of a scrap of paper, straightway begin to prepare for a fresh coup twenty-five years or so hence? must the peace-loving peoples of the world still apply themselves to that most distasteful of all tasks, the invention and manufacture and practice of means of destroying life and property in war? and what about internal affairs? are individual enterprise and talent to be smothered by rule? is the constitution of the united states a worn-out old one-horse shay, ready to drop to pieces all at once? is the senate a back number? is the peaceful rule by majority to be exchanged for bolshevik dictatorship? is our transportation industry to be ruined by taxes and rate control at one end and cost of labor at the other? should we take an active part in the affairs of the eastern hemisphere, and invite european and asiatic powers to help regulate our continent; in short should the national policy called the monroe doctrine be abolished? these and many similar questions are pressing for solution. they are not mere fancies; they are not partisan issues, though many stentorian shouters proclaim them such; they are live and vital questions which must be solved and will be solved, doubtless at great cost in treasure and perhaps at some cost in blood. that they will be rightly solved in the end i have no doubt. nothing is settled, said someone, i forget who, until it is settled right. it is for you and me and all of us to bear in mind that our work is only half done: that our sacrifices and labors and efforts during this great war that is just closed, i hope forever, are but the beginning, and that we owe it to our country and our children to do what we can to encourage sanity, deliberation and temperance of thought, speech and action in all classes of the people. mild as that sounds, it is a stupendous task to perform. there rarely was a time when unthinking people were not more inclined to listen to a demagogue rather than a statesman; and few people think at all; still fewer think straight. it is a rebellious people, saying "prophesy not unto us right things, speak unto us smooth things, prophesy deceits." it is a time of epithets rather than of logic, of lying epigrams rather than solid truths. all the wealthy, it seems, are corrupt; all money in large amounts is tainted; even the scales of justice are accused of falsity. ebullitions of this kind often indicate an undercurrent little suspected. i realize that i am saying little or nothing that is new, and i have no new methods or theories to offer for meeting the situation. one thing is certain; before we can teach other people to think clearly, we must be able to think clearly ourselves; to formulate and make others realize the real issues; to perceive the fallacy or confusion in the opposing line of thought, and point it out without offense. it is a maxim among lawyers that a case well stated is half argued, and nothing can be more to the point at this time. we still have real statesmen; let us listen to them with attention and take care not to hurry too much in deciding. impulse leads to irretrievable error much oftener than does deliberation. sober second thought is usually the better. but, notwithstanding this anxiety, let us rejoice in the great victory of liberty over autocracy and militarism. as we look back over the last five years we see many a vision; some dreadful nightmares, others with the seeming of the good god taking direct part in the affairs of men. the rape of belgium, the miracle of the marne, the tedious deadlock in the trenches, the ghastly failure at gallipoli, the collapse of rumania, the tragedy of russia, the debacle in italy, the heroism of ypres and passchendaele and verdun; then the ever present dark shadow of the submarine; the agonized cry of exhausted england and france for men, men, men, as one offensive broke towards calais, another towards amiens, another straight for paris by way of chateau thierry, while our brave boys seemed to be training interminably; the halting of the hun at belleau wood and chateau thierry; the crouch of the american wildcats for their spring; until, as men's hearts seemed to fail them, and the cry went up, "how long, o lord, how long?" the little bell of st. mary's-by-the-sea rang as it had never rung before. peal after peal: some good news: what is it? "the allies have attacked; the front between soissons and chateau thierry is all crumpled up: the germans cannot hold the salient." smash after smash: it is our turn now; in flanders, in picardy, in champagne, in lorraine: by britain, by france, by america, singly, doubly, and all together; each day a new victory headlined; the military lines approaching the french boundary; the thumbtacks moved each day on the war maps; st. mihiel salient wiped out; rheims freed of bombardment; argonne wood, our present day battle of the wilderness, takes time and its awful toll of human lives, but yields, for the first time in history, to an attack by american troops; grand pré and open country beyond. forward again, until a great railroad line is cut, and sedan, the catastrophe of , becomes the final triumph of . how we watched the telegraphic bulletins! how we studied the maps! until, after one false report of an armistice, the real armistice came, and our peace-loving people, joint victors in the greatest war of all time, turned into a horde of lunatics. what a day it was, that eleventh of november! i was in boston to attend the wedding of a nephew, a colonel of artillery, who had commanded his regiment at cantigny and had later been ordered to this country in connection with organization and training of troops. the guests had to walk, as no vehicle could thread the crowd. late editions of the papers contained the armistice terms in full, and, as our somewhat numerous family was gathered for five o'clock tea, one member was deputed to read the terms aloud, and there were attentive listeners. after he had finished, no one spoke for a moment; and then a voice said, "that seems to cover the ground." truly we have much to thank god for, this fourth of july. we have left undone some things that we ought to have done, and we have done some things that we ought not to have done; but i cannot say now that there is no health in us. once again we have had a new birth of freedom; once again we highly resolve that our dead shall not have died in vain; once again we resolve, and i think that we have shown by deeds our determination, that "government of the people, by the people, and for the people shall not perish from the earth." american steel foundries v. tri-city trades council. (u. s. supreme court, dec. , ). _strikes--picketing--the clayton act--circumstances to be considered in injunction case_. [note--the following case on picketing is so important, being the latest and a final decision of the highest court in the united states on a matter which has been treated differently by various courts, that we reproduce the opinion here, as published in the "new york times."--editor]. taft, ch. justice: this is a picketing case. only two men in the employ of the foundries had responded to the calling of the strike by the tri-city council. they were picketers, were defendants, and were enjoined. only one of them was a member of a union of that council. the case involves, as to them, the application of section of the clayton act, of which the provisions material here are those which forbid an injunction in behalf of an employer against, first, persuading others by peaceful means to cease employment and labor; second, attending at any place where such person or persons may lawfully be for the purpose of peacefully obtaining or communicating information; third, peaceably assembling in a lawful manner and for lawful purposes. the act emphasizes the words "peaceable" and "lawful" throughout the phrases which were used. we do not think that these declarations introduced any new principle into the equity jurisprudence of the federal courts. they are merely declaratory of what was the best practice always. congress thought it wise to stabilize this rule of action and to render it uniform. its object was to reconcile the rights of the employer in his business and in the access of his employés to his place of business without intimidation or obstruction, on the one hand, and the right of the employés, recent or expectant, to use peaceable and lawful means to induce prudent principles and would-be employés to join their ranks, on the other. if, in their attempts at persuasion or communication, those of the labor side adopt methods which, however, lawful in their announced purpose, inevitably lead to intimidation and obstruction, then it is the court's duty--and the terms of section do not modify this--so to limit what the propagandists do as to time, manner and place as to prevent infractions of the law and violations of the right of the employés and of the employers for whom they wish to work. in going to and from work, men have a right to as free passage without obstruction as the streets afford, consistent with the right of others to enjoy the same privilege. we are a social people and the accosting by one of another in an inoffensive way and offer by the one to communicate and discuss information with a view to influencing the other's action, are not regarded as aggression, or a violation of that other's right. if, however, the offer is declined, as it may rightfully be, then persistence, importunity, and following do become unjustifiable annoyance and obstruction which is likely soon to savor of intimidation. the nearer this is to the place of business, the greater the interference with the business and especially with the property right of access of the employer. such an attempted discussion attracts the curious, or, it may be, interested bystanders. they increase the obstruction as well as the aspect of intimidation which the situation quickly assumes. in the present case, under the conditions which the evidence discloses, all information tendered, all arguments advanced and all persuasion used were intimidation--they could not be otherwise. it is idle to talk of peaceful communication in such a place and under such conditions. the numbers of the pickets in the groups constituted intimidation. the name "picket" indicated a militant purpose, inconsistent with peaceful persuasion. the employés were made to run the gauntlet. when one or more assaults or disturbances ensued, they characterized the whole campaign, which became effective because of its intimidating character, in spite of the admonitions given by the leaders to their followers as to lawful methods to be pursued, however sincere. our conclusion is that picketing thus instituted is unlawful and cannot be peaceable, and may be properly enjoined by the specific term of "picketing" because its meaning is clearly understood in the sphere of the controversy by those who are parties to it. we are supported in that view by many well-reasoned authorities, although there has been contrarity of view. a restraining order against picketing by that name will advise earnest advocates of labor's cause that the law does not look with favor on an enforced discussion of the merits of the issue between individuals who wish to work and groups of those who do not, under conditions which subject the individuals who wish to work to a severe test of their nerves and physical strength and courage. but while this is so, we must have every regard for the congressional intention manifested in the act to the principle of existing law which declares that ex-employés and others properly acting with them shall have an opportunity, so far as is consistent with peace and law, to observe who are still working for the employer, to communicate with them and to persuade them to join the ranks of his opponents in a lawful, economic struggle. regarding as primary the rights of the employés to work for whom they will, and to go freely to and from their place of labor, and keeping in mind the right of the employer incident to his property and business to free access of such employés, what can be done to reconcile the conflicting interests? each case must turn on its own circumstances. it is a case for the flexible, remedial power of a court of equity which may try one mode of restraint, and if it fails or proves to be too drastic, may change it. mcgann co. v. labrecque co. (essex circuit court, jan., ). _action of trespass--lease and sale of property--limitation of term--jurisdiction of district court_. case of joseph f. mccann, trading as the mcgann company, against la brecque company. action at law. trespass. mr. milton m. ungur for plaintiff. messrs. burnett, sorg, murray & duncan for defendant. (conclusions). dungan, j.: this is an action of trespass brought by the plaintiff against the defendant for the wrongful removal of plaintiff's goods from the defendant's premises under the following conditions: p. ballentine & sons, a corporation, demised the premises in question to defendant by lease dated august st, , for a term commencing november st, , and terminating april th, . the lease provided: "it is further understood and agreed between the parties hereto that a sale of the property by the party of the first part shall terminate this lease upon six months' written notice to the party of the second part; and, in lieu of compensation, it is hereby agreed that the rent shall be waived during the six months notice to vacate." by deed dated october , , proved october , , and recorded october , , p. ballentine & sons conveyed the premises in question by warranty deed to the plaintiff, subject to the above tenancy. by endorsement dated april , , made upon the lease, p. ballentine & sons assigned said lease and all of the rights of the lessor thereunder, to the plaintiff. october , , there was served personally upon defendant a notice, dated on that day, signed by both the grantor and the grantee in the deed last mentioned, as follows: "you will please take notice that the premises leased by you from p. ballentine & sons by written lease dated the first day of august, , have this day been sold to labrecque company, inc., and notice of the cancellation of your said lease is hereby given you pursuant to that clause of your lease reading as follows: 'it is further understood and agreed between the parties hereto that a sale of the property by the party of the first part shall terminate this lease upon six months' written notice to the party of the second part, and in lieu of compensation it is hereby agreed that the rent shall be waived during the six months' notice to vacate.'" the defendant did not remove from said premises at the expiration of six months and the statutory demand for delivery of possession was personally served on defendant. after the expiration of said period, he refused to vacate the premises, and thereupon the defendant here instituted and prosecuted summary proceedings in the second district court of the city of newark, in which court judgment for possession of the premises was rendered may , , and the removal of plaintiffs, being the alleged act of trespass for which this suit is brought, was, by virtue of the order of removal, made by that court upon said judgment. there is no contention that there was any irregularity in the proceedings of that court, if the court has jurisdiction; but the plaintiff here insists that the provisions of the lease above quoted constituted a condition, or covenant, and not a limitation of the term, and that consequently the district court did not have jurisdiction. the parties hereto have entered into a stipulation to submit this suit to the court for judgment upon the complaint, answer and reply, which correctly sets forth the facts as above stated, and adds: "if the court is of the opinion that the plaintiff is entitled to recover, judgment is to be rendered in favor of the plaintiff and against the defendant, and there is to be an assessment of the damages by a jury drawn for that purpose, reserving however all questions of law as to the measure of damages; and, if the court is of the opinion that the plaintiff is not entitled to recover, judgment shall be entered in favor of the defendant as if said cause had been tried and a verdict in favor of the defendant had been rendered"; both parties reserving the right to appeal from the judgment to be entered. it is admitted on behalf of the plaintiff that, if the said provision of the lease constituted limitation of mcgann's terms, then the district court had jurisdiction and the plaintiff cannot recover in this suit. the jurisdiction of the district court in such cases is confined in its application to the instant case, to "when any such person shall hold over and continue in possession ... after the expiration of his ... term," etc. admittedly the decision of this case rests upon whether or not the sale of the premises and the notice given by the lessor and labrecque company to the plaintiff ended the term of the mcgann company. if it did--if this was a limitation of the plaintiff's term,--the jurisdiction of the district court was complete. the case of quidort v. bullitt, n. j. l. , is very much in point. in that case it appeared by the affidavit filed with the justice that the defendants, in may, , leased to the prosecutor a seaside cottage at cape may for five years, which lease was extended for two successful periods. the lease contained the following provision: "lessors are to have the privilege of terminating the lease at any time upon giving six months' notice of their intention to do so, prior to the first day of july or any year during the lease.". on october , , the defendants caused to be served on the prosecutor a written notice, which, after reciting the terms of the lease stated: "we have determined to avail ourselves of the privilege of terminating the lease. we now give you notice of the exercise of our privilege and of our intention to terminate the said lease on the first day of may, , and demand that you surrender us possession of the leased premises at that time, in accordance with the provisions contained in the lease. this right to terminate the lease is exercised in accordance with the lease and the several extensions thereof. we shall expect you to deliver to us, on the first day of may, , the cottage and bath houses mentioned in the said lease, and also the articles mentioned and set out in the inventory annexed thereto." the tenant refused to deliver possession and, on the th day of may, , instituted proceedings before the justice, which were the subject of review by certiorari in that case. it is insisted on behalf of the plaintiff that whether or not the quoted provision of the lease and the giving of the notice constituted a mere condition or covenant or was a limitation, was not decided in that case; but, while it is not expressly so stated, it seems to me a decision of that question was absolutely essential to a decision of the case. chief justice gummere, in delivering the opinion of the supreme court (page ) said: "the question for determination is whether the justice had jurisdiction of the cause; if he had jurisdiction, then the writ in this case should be dismissed, but, if he had not, then the proceedings before him should be set aside." again on page he said: it is alleged by the prosecutor that the facts above recited did not bring the case within the jurisdiction of the justice for the following reasons: . that the privilege of terminating the lease was not a term, condition or limitation of the original lease, but a special privilege, reserved to the lessors, of ending the original term." thus it is plain that the precise question in issue in this case was before the court, and that it was necessary for the court, in order to reach the decision it did, to decide that the quoted provision would constitute a limitation upon the term fixed by the original lease. the case of miller v. levi, n. y. , is also applicable to this case. in that case miller demised to levi, reserving the right to sell the demised premises and to limit levi's term thereon to the expiration of sixty days after notice of sale. the sale and notice specified in the lease was made. it was insisted that the justice had no jurisdiction of the summary proceedings, because this can only be resorted to where the term of the lease of the lessee "has expired by lapse of time," which it was said was not the fact in that case. the court said: "immediately upon sale by miller and notice thereof to the tenant the limitation attached to the estate of the latter, without further act on the part of miller. there then arose a limitation of his term, to wit, its expiration on the first of may following. the act itself, in the lease contemplated, to wit, a sale without notice, created the expiration. nothing further was necessary.... the 'term' of the lease must therefore be taken to have 'expired' on the first of may, ." i think, therefore, that when the leased property was sold, and the notice of sale given to mcgann on october th, , the term of mcgann under the terms of the lease expired six months thereafter; that the sale and notice constituted a limitation of his term; that the second district court of the city of newark, before which proceedings to remove mcgann were instituted may nd, , had jurisdiction to hear and determine the matter before it; and that, therefore, the defendant is not guilty of the trespass alleged against him. judgment is given, therefore, against the plaintiff and in favor of the defendant. * * * * * one hunting on sunday, in violation of statute, is held to be answerable for injuries accidentally inflicted upon a bystander by the voluntary discharge of his gun, in the vermont case of white v. levarn, atl. , annotated in a.l.r. , on violation of sunday law as ground for civil action for damages. * * * * * the keeping of high explosives in a public highway in a populous community, without guard or signal, to the terror, alarm, and great danger of the citizens, is held to be a common nuisance, indictable at common law, in kentucky glycerine co. v. com. ky. , s. w. , annotated in a.l.r. . * * * * * false swearing by a witness is held to be such an obstruction of justice as to constitute a direct contempt of court, in riley v. wallace, ky. , s. w. , annotated in a.l.r. . * * * * * a petition filed against a partnership by one partner alone must, under section a of the bankruptcy act and general order no. , conform to the requirements of an involuntary petition and must, therefore, allege insolvency and that an act of bankruptcy was committed by the partnership. matter of ollinger & perry. am. b. r. . * * * * * a parent who takes a deed from his child soon after it reaches majority and while it is living under his roof is held to have the burden of clearing the transaction of every suspicion, and establishing its fairness and good faith, in the arkansas case of shackleford v. shackleford, , s. w. , annotated in a.l.r. . * * * * * giving a broker the "exclusive sale" of a parcel of real estate is held not to preclude the owner from selling to one whom he had reason to believe had not been procured by the broker, in roberts v. harrington, wis. , n. w. , annotated in a.l.r. , on whether an ordinary broker's contract excludes right of sale by owner. miscellany some state notes. on dec. mrs. mary j. rellstab, wife of united states district court judge john rellstab, died at her home in trenton. she had been an invalid for many years. before her marriage, in , she was miss mary johnston whittaker, daughter of the late george r. and mrs. mary whittaker. besides her husband, two sisters, mrs. j. f. clement of philadelphia and miss emily whittaker of trenton, survive. mrs. rellstab was for many years active in church and charity work. on nov. the supreme court suspended three lawyers charged with unprofessional conduct: mr. william m. rysdyk, of jersey city, for one year; mr. charles sloff, of passaic, for one year, and mr. charles k. richmond, of passaic, for two years. in the first two cases the cause was financial misappropriation, and in the last case an endeavor to influence a juryman. new jersey bar examinations, november term, . attorney's questions. . a party in a proceeding in the orphans' court appealed from the decree of said court to the court of errors and appeals. was this proper? . a held in trust for f certain lands and also certain bonds. he died intestate, leaving two sons b and c, b being the elder. c was appointed administrator. to whom did the title to the land and to whom do the bonds descend? . w being under indictment by a federal grand jury, applied to the court for compulsory process for the purpose of obtaining witnesses in his behalf. his application was denied. was the court right? . a railroad company made a mortgage upon its lands, chattels and franchises. it was duly recorded as a real estate mortgage but it was not recorded as a chattel mortgage. was it valid as to the chattels against creditors of the company? . s went to work for b and took two flags with him. he allowed b to use one of them and helped put it on b's building. subsequently a hail storm destroyed it. he then sued b for the value of the flag. should he recover? . g agreed to sell and deliver to j certain goods on or before the th of july. instead of delivering the whole of the goods he attempted to deliver the same in instalments, the last instalment to be delivered on july . j refused to accept the goods. was he bound to do so? . where there is a plain repugnancy between the provisions of an original contract, and those of a supplemental one between the same parties relating to the same subject matter, which one controls? . s, being indebted to a number of persons, advertised and sold at public sale all of his stock to one person. was this contrary to the bulk sales act of ? . one member of the firm of w & co. which was still in existence, without the authority of the other member, confessed a judgment to y, a creditor of the firm. was the judgment binding upon the firm? . an agent acting within the scope of his authority, did certain fraudulent acts. was the principal liable for these acts of the agent? . what are the requirements to make an instrument negotiable? . john smith made a will, wherein he gave his son, thomas, a legacy of $ , , adding that the legacy should be void if thomas married any one of the daughters of robert jones. thomas having married one of jones' daughters, demanded the legacy, claiming that the condition was void. was his claim good? . (a) how soon after the death of a testator may his will be admitted to probate? (b) how soon after the death of an intestate may administration of his estate be granted? . what is the difference between the relief granted in equity in cases of mutual mistake and of the mistake of one party? . a made a conveyance of real estate to b for the purpose of defrauding his creditors. a having died intestate, his heirs brought suit in chancery to compel b to convey the property to them. what should the court do? . b made a will leaving all his property to d, whom his (b's) mistress had fraudulently represented to him to be his child. c, the heir at law of b, filed a bill in chancery to set aside the will on the ground of fraud. d moves to strike out. what should the court do? . b sued a for slander. a pleaded that he was intoxicated at the time he uttered the slander. b moved to strike out this defence. what should the court do? . a sued the city of n for damages. he showed that he had been run over by an ash-cart owned and operated by the city by reason of the driver's negligence and that the driver was drunk at the time and was drunk to the knowledge of the city's foreman when the latter sent him out with the cart. the city moved to nonsuit. should the motion be granted? . a sued b for damages by reason of injuries caused by the joint negligence of b and c. he recovered a judgment which b paid. b then sued c for contribution. could he recover? . a was indicted for murder of b. on the trial it was shown that a killed b while b was trying to rob him on the highway. the prosecutor contended that a could not be acquitted unless it appeared that he could not have rendered the attempt to rob abortive by any means less radical. the court overruled this contention. was the ruling correct? . a husband decided to move from new jersey to new york. his wife refused to go with him and filed a bill for maintenance. could she succeed? . how many incorporators must there be to incorporate a company in new jersey? what facts should appear in the certificate and how should it be executed? . a witness at a trial desired to use his own memorandum to refresh his memory. could he do so? . a promissory note on its face was made payable in money. parol evidence was offered to prove it was payable in stock and that interest on the note was equivalent to the amount of dividends on such stock. should this evidence be admitted? . a landlord and tenant were joined, as defendants, in an action for trespass arising out of the same act. an objection was made for misjoinder. is the objection good? . in a civil action against a husband and wife for damages resulting from an atrocious assault committed by the wife with the encouragement of the husband, an order was made to hold both to bail. was this legal? . a sued the state of new jersey on a book account. could he maintain his action? . at the hearing of a suit in chancery, defendant set up the statute of limitations, but this defense did not appear in the answer. could the defendant avail himself of it? . a bill in equity failed to state any equitable cause of action. what would you advise your client to do? . a and b came into the office of c, an attorney, to have him draw a deed from a conveying property to b. before the deed was drawn, c discovered that the title to the property was defective. should he divulge this fact to b, who has had nothing to do with his employment? counselors' questions. . a final judgment in the circuit court was brought by writ of error directly into the court of errors and appeals. was this legal? . a widow, whose dower had not been assigned to her, remained upon the homestead of her deceased husband and took to her own use the crops growing thereon. was she entitled to the same? . the board of aldermen of the city of j passed an ordinance that no one should conduct a grocery store in the city unless he was a citizen of the state of new jersey. a, a citizen of new york, having been found guilty of violating this ordinance, certioraried his conviction to the supreme court. what should the court do? . a mortgagee in a chattel mortgage held the same for ten days after the delivery of the mortgage and then recorded it. in the meantime a judgment was recovered against the mortgagor, execution issued and a levy made upon the goods and chattels named in the mortgage. which has priority? . s agreed to take the automobile of t to a shop to be repaired and to return it after it was repaired. he took it to the shop, but failed to return it. it was later destroyed by fire while in the shop, and t sued s because of his failure to return the automobile. was he liable? . a purchased an automobile from an infant and sold it to b in good faith for value, neither a nor b having notice of the infancy of a's vendor. was it a valid sale? . r was indebted to s and the latter started a suit to recover the amount due. thereupon g agreed with s that if he would discontinue his suit and wait for three months before again suing, he would be responsible for the debt. this was done. at the end of the three months was g liable? . l agreed to do certain work, part of it to be done on sunday. t subsequently agreed to pay l for such work. was he liable? . an agent received the instructions of his principal, knowing that in order to carry them out he would have to commit a nuisance, and did actually commit such nuisance. the person injured sued the agent. was he liable? . the partnership accounts between d and m were unsettled, although they had dissolved partnership. d alone could settle them, but refused to do so. what kind of action could m institute against d? . smith purchased a horse from jones, giving him in payment a check on a bank which he (smith) had had certified. smith having learned that jones had no title to the horse stopped payment on the check. jones sued the bank which answered, setting up want of consideration for the check. could it do so? . a died january , , leaving a last will wherein he bequeathed $ , to his son, john, then aged , and $ , to the a hospital, and the residue of his estate to his daughter, jane. the legacies remaining unpaid on january , , john and the hospital sued the executors for them, claiming also interest. from what date should interest be allowed, if at all? . mary jones died june , , leaving a husband, peter jones, by whom she had never had children, and three children by a prior marriage. she left a will devising her real estate to her children, but made no disposition of her personal estate. to whom did her real and personal estate go on her death? . b, a creditor of the insolvent firm of j. & s., agreed to sell and assign his claim to d for the sum of $ , . b thereafter refused to make the assignment. d thereupon filed a bill in chancery against b for specific performance. could he maintain his action? . a was in possession of a house and lot. b, his neighbor, insisted that a's house was over his line by a foot. how could a test his title, b refusing to bring an action? . brown, as executor of smith, filed his final account in the orphans' court of salem county, and gave notice of settlement. grey, one of the residuary legatees, desired to have the accounting in chancery. was this possible? if so, how should he proceed and what must he show? . in the trial of an action for libel wherein plaintiff claimed compensatory damages only, defendant offered in mitigation of damages evidence that the publication was made in good faith and with honest belief in its truth. the court excluded the offer, and this ruling was attacked on appeal. was it correct? . plaintiff, aged nine, who was struck and injured by an automobile while crossing a street, brought suit. the defense was contributory negligence. the court charged that a child of that age could be charged with contributory negligence, but that in considering that question it was for the jury to consider whether the plaintiff had exercised the caution which would reasonably be expected from one of his years. was this charge correct? . a, an owner of a dwelling house, brought an action against b, who had a tannery in the next block, alleging and showing on trial that noxious fumes from b's tannery had made plaintiff's house untenantable. b moved to nonsuit on the ground that these fumes injured a large number of houses, were a public nuisance and the only remedy was by indictment. the court refused to nonsuit. was this ruling correct? . in what case and under what circumstances can a writ of error issue directly from the court of errors and appeals to the court of oyer and terminer? . at common law what right had a husband in personal property acquired by the wife during coverture? what is the rule in new jersey? . the treasurer of a corporation died. there was no provision in the by-laws for the election of his successor. how can the place be filled? . on a bill for the construction of a will, evidence was offered of declarations made by the testator at the time of making the will as to his meaning and intention. should this evidence be received? . in a suit involving an account, it appears that the defendant had admitted that a certain sum was due. the defendant, however, demanded the production of the plaintiff's books and on refusal moved for a nonsuit. should the motion be granted? . how is an issue of fact created in a lawsuit? . where may the venue be laid in a transitory action? . how should service of summons and complaint be made in a case where an affidavit of merits is desired? . x in a bill against y in his prayer asked for answer without oath. y answered under oath. how should the answer be construed? . a filed a bill in chancery and failed to pray for general relief. can he succeed if the special relief prayed for fails? . a, clerk in a law firm, not yet admitted to the bar, receiving a regular salary, had his friends retain his employers. should the firm divide its fees with the clerk? new jersey bar admissions, november term, . the following were admitted as attorneys by the supreme court of this state at the november term, : elizabeth. bender, albert c., elizabeth ave. eisenberg, henry m., third st. liotta, eugene a., broad st. weiner, frank s., broad st. hoboken. capelli, george a., madison st. greenberg, william, washington st. levenson, jay m., newark st. stover, harriet c., bloomfield st. jersey city. blumberg, leo, magnolia ave. ewald, henry, jr., summit ave. hoagland, inez, city hall. kelly, james francis, lincoln trust bldg. kriegel, louis j., newark ave. kuebler, carl s., montgomery st. mccarthy, james j., exchange pl. pforr, arthur, montgomery st. newark. brown, john s., central high school, new and high sts. citret, harry, broad st. dorgeval, harold f., market st. eisner, mortimer, high st. eppston, joseph g., clinton st. federici, christine a., kinney bldg. kinkelstein, milton j., broad st. giordano, john c., hunterdon st. halpin, julius h., somerset st. merz, charles d., hawthorne ave. padalino, frank p., camden st. pollard, robert s., market st. potoker, benjamin, beacon st. reid, alexander f., jr., mulberry st. schneider, louis, broad st. thiele, richard hardie, prudential ins. co. vanderbilt, leslie l., n. th st. trenton. cella, g. andrew, hamilton ave. heher, john l., commonwealth bldg. josephson, leon, greenwood ave. other places. bremer, philip m., paterson st., new brunswick. colver, frederick b., tenafly. dart, william a., sheen bldg., atlantic city. deyoe, willard l., u. s. trust bldg., paterson. fuller, ernest, fairview ave., so. orange. galanti, benjamin p., main st., hackensack. greenberg, victor, grove st., passaic. gottko, anthony a., e. th st., bayonne. hahn, harold h., broadway, n. y. city. hendler, louis l., french st., new brunswick. hendrickson, frank a., main st., mt. holly. jackson, george t., n. ohio ave., atlantic city. loder, william w., e. commerce st., bridgeton. lore, harry t., section of surety bonds, treas. dept., washington, d. c. mcdonough, peter j., jr., babcock bldg., plainfield. mcelroy, leon e., main st., woodbridge. plympton, george f., clinton pl., hackensack. preston, joseph a., park ave., cliffside. ridgeway, s. paul, n. iowa ave., atlantic city. thompson, rufus b., federal st., camden. visscher, barent l., william st., n. y. city. warsinski, carl h., burnside ave., cranford. woods, elmer b., glassboro. zirpoli, anthony p., market st., paterson. * * * * * the following were also admitted as counselors-at-law: counselors. bergen, francis l., nd nat. bk. bldg., somerville. bowne, edward a., south river. braelow, joseph c., broad st., newark. buchanan, jessie c., w. state st., trenton. deegan, joseph f., raritan bldg., perth amboy. fleming, russell, broad st., newark. gunther, edward c., hudson tr. bldg., w. hoboken. handford, james l., broad st., newark. hirschberg, samuel l., washington st., hoboken. isaacs, lionel, summit ave., w. hoboken. kaplan, joseph d., s. broad st., trenton. kepsel, julius a., montgomery st., jersey city. krohn, herman, broad st., newark. lesser, louis b., clinton st., newark. matthews, john a., clinton st., newark. mccloskey, w. durward, thompson bldg., lakewood. miele, philip j., montgomery st., jersey city. morrison, george r., college ave., new brunswick. praissman, maurice l., arch st., camden. rauch, sylvan j., penna. ave., newark. reussille, leon, jr., broad st., red bank. satz, david m., broad st., newark. schroth, godfrey w., jr., broad st., trenton. schultz, vincent, broad st., newark. seiler, isaac w., broadway, bayonne. silberman, paul r., broad st., newark. simandl, harold, broad st., newark. stiles, harry a., river st., hoboken. stover, charles w., washington st., hoboken. sullivan, james a., exchange pl., jersey city. tepper, harry l., broad st., newark. varbalow, joseph, federal st., camden. waldman, herman, clinton st., newark. zimmerman, thomas l., jr., rider ave., n. y. city. zucker, maurice j., broad st., newark. obituaries. ex-justice bennet van syckel. on dec. th last, following a brief illness of bronchial pneumonia, supreme court justice bennet van syckel, almost ninety-two years old, the oldest alumnus of princeton university, died at his home in trenton. judge van syckel was the son of aaron van syckel, and mary van syckel, of bethlehem, hunterdon county, and was born there april , . his father and his grandfather were country merchants, whose ancestors came with the old dutch settlers to that part of new jersey. his father was considered wealthy in those days and was able to give his four sons an excellent education. when bennet was nine years old he was sent to a boarding school at easton. at the age of thirteen he completed his preparatory studies and entered princeton in the sophomore class. three years later he was graduated with high honors and for one year was resident graduate assistant professor to joseph henry, who occupied the chair of natural philosophy. bennet next took up the study of law in the office of alexander wurts of flemington, and was prepared to take his law examination some time before he was of age, but as he could not be admitted to the bar while under twenty-one was forced to wait. on the twenty-first anniversary of his birthday, at the april term of the supreme court, , he was admitted to the bar, and became counselor at the june term, . he at once opened office in flemington, and practiced there with unusual success until february, , when governor randolph appointed him justice of the supreme court. at that time he was the youngest member of the court. his circuits were in the counties of salem, cumberland, atlantic and cape may. when the number of supreme court justices was increased from seven to nine and the districts were readjusted, justice van syckel was assigned to union and ocean counties, where he presided twenty-nine years. he was five times reappointed. only a few months after his last appointment in he resigned because of ill health and increasing age. after his retirement justice van syckel was made the guest of the new jersey bench and bar, at trenton, upon which occasion a portrait of him painted in oil was presented to the state, to be hung on the wall of the supreme court room at the capitol. a few months later another portrait was hung in the new court house in union county, in honor of the justice who had presided there for so many years. during his term of service justice van syckel delivered some of the most important opinions of the supreme court and of the court of errors and appeals. in the prosecution of the linden and elizabeth race track gamblers in he proved a terror to poolsellers, bookmakers and evildoers. it was justice van syckel who wrote the opinion of the supreme court when an effort was made to challenge the majority cast in favor of the anti-gambling amendment to the state constitution, and his opinion upholding the adoption of the amendments was sustained by the court of errors and appeals. at the time of his death a membership in the directorate of the prudential life insurance company was the former justice's sole business affiliation. his activity in connection with this post caused his associates to marvel. he attended all the meetings and was as alert as the youngest of his colleagues. at the princeton alumni reunion in june, , he led the parade around the baseball field and got a big ovation from the throng in attendance. in his automobile he arose repeatedly and raised his hat in acknowledgment of the applause. in , woodrow wilson, when governor, appointed him and former state attorney general edmund wilson, of red bank, as a commission to study the proposed abandonment of the morris canal. the report was adverse to the state taking over the canal. the justice aided in the drafting of the "seven sisters" acts, passed during the wilson administration, which were designed to curb the activities of the trusts in new jersey. justice van syckel was a lover of outdoor sports. in his younger days he played town ball and football and later was a great admirer of baseball. he rode horseback, played golf and was a fine wing shot. in politics he was a democrat, but politics had no place with him while he sat on the bench. mr. van syckel married miss mary elizabeth sloane, daughter of mr. and mrs. william hand sloane. he is survived by two sons, charles s. and william s., and a daughter, bessie. judge william r. francis. former new jersey state senator and former supreme court judge of dakota, william r. francis, died in the city hospital in newark, this state, on dec. th last, aged years. his death was the result of a fall in the bedroom of his home, s. orange ave., newark. judge francis was born in connecticut. he was a graduate from oberlin college and then came to newark, where he became a member of the law firm of titsworth, francis & marsh. he served as city counsel of newark from to and in the state senate from to . in mr. francis went to dakota. at that time the two dakotas were united in a territory of the united states. after completing his term as supreme court judge there he became attorney for the northern pacific railroad. about twenty years ago he returned to newark. mr. francis was a master in chancery and had offices with scharringhausen & hartpence, broad street. mr. francis is survived by a widow, who was miss annie yeomans of newark. he is also survived by a niece, mrs. c. l. bryant of danbury, conn., and a cousin, miss mary francis, of newark. transcriber notes: passages in italics were indicated by _underscores_. small caps were replaced with all caps. throughout the dialogues, there were words used to mimic accents of the speakers. those words were retained as-is. errors in punctuations and inconsistent hyphenation were not corrected unless otherwise noted. on page , "migh" was replaced with "might". on page , the term "plaintiff's term" was obscured by a google logo. on page , "provsion" was replaced with "provision". on page , the phrase "committed by the wife with the en-" was moved to the top of the page, since it seemed to be put in the wrong line initially. on page , the question mark after "b thereafter refused to make the assignment" was replaced by a period on page , "prinecton" was replaced with "princeton". full text of the riot act (c. - ) typed in this february , by jonathan walther. the source was cap v, volume xiii, pages - of the "statutes at large" series, printed in the year . also indexed as "anno primo georgeii i. stat. . c. ." many sources on the internet claim the riot act was passed in ; according to statutes at large it was passed in . the confusion may be caused by the fact that the act took _effect_ in august of . this is, of course, the famous riot act that gave rise to the expression _"read them the riot act!_". cap. v. an act for preventing tumults and riotous assemblies, and for the more speedy and effectual punishing the rioters. i. whereas of late many rebellious riots and tumults have been in divers parts of this kingdom, to the disturbance of the publick peace, and the endangering of his majesty's person and government, and the same are yet continued and fomented by persons disaffected to his majesty, presuming so to do, for that the punishments provided by the laws now in being are not adequate to such heinous offences; and by such rioters his majesty and his administration have been most maliciously and falsly traduced, with an intent to raise divisions, and to alienate the affections of the people from his majesty therefore for the preventing and suppressing of such riots and tumults, and for the more speedy and effectual punishing the offenders therein; be it enacted by the king's most excellent majesty, by and with the advice and consent of the lords spiritual and temporal and of the commons, in this present parliament assembled, and by the authority of the same, that if any persons to the number of twelve or more, being unlawfully, riotously, and tumultuously assembled together, to the disturbance of the publick peace, at any time after the last day of _july_ in the year of our lord one thousand seven hundred and fifteen, and being required or commanded by any one or more justice or justices of the peace, or by the sheriff of the county, or his under-sheriff, or by the mayor, bailiff or bailiffs, or other head-officer, or justice of the peace of any city or town corporate, where such assembly shall be, by proclamation to be made in the king's name, in the form herin after directed, to disperse themselves, and peaceably to depart to their habitations, or to their lawful business, shall, to the number of twelve or more (notwithstanding such proclamation made) unlawfully, riotously, and tumultuously remain or continue together by the space of one hour after such command or request made by proclamation, that then such continuing together to the number of twelve or more, after such command or request made by proclamation, shall be adjudged felony without benefit of clergy, and the offenders therein shall be adjudged felons, and shall suffer death as in a case of felony without benefit of clergy. ii. and be it further enacted by the authority aforesaid, that the order and form of the proclamation that shall be made by the authority of this act, shall be as hereafter followeth (that is to say) the justice of the peace, or other person authorized by this act to make the said proclamation shall, among the said rioters, or as near to them as he can safely come, with a loud voice command, or cause to be commanded silence to be, while proclamation is making, and after that, shall openly and with loud voice make or cause to be made proclamation in these words, or like in effect: our sovereign lord the king chargeth and commandeth all persons, being assembled, immediately to disperse themselves, and peaceably to depart to their habitations, or to their lawful business, upon the pains contained in the act made in the first year of king george, for preventing tumults and riotous assemblies. god save the king. and every such justice and justices of the peace, sheriff, under-sheriff, mayor, bailiff, and other head-officer aforesaid, within the limits of their respective jurisdictions, are hereby authorized, impowered and required, on notice or knowledge of any such unlawful, riotous and tumultuous assembly, to resort to the place where such unlawful, riotous, and tumultuous assemblies shall be, of persons to the number of twelve or more, and there to make or cause to be made proclamation in manner aforesaid. iii. and be it further enacted by the authority aforesaid, that if such persons so unlawfully, riotously, and tumultuously assembled, or twelve or more of them, after proclamation made in manner aforesaid, shall continue together and not disperse themselves within one hour, that then it shall and may be lawful to and for every justice of the peace, sheriff, or under-sheriff of the county where such assembly shall be, and also to and for every high or petty constable, and other peace-officer within such county, and also to and for every mayor, justice of the peace, sheriff, bailiff, and other head-officer, high or petty constable, and other peace-officer of any city or town corporate where such assembly shall be, and to and for such other person and persons as shall be commanded to be assisting unto any such justice of the peace, sheriff or under-sheriff, mayor, bailiff, or other head-officer aforesaid (who are hereby authorized and impowered to command all his majesty's subjects of age and ability to be assisting to them therein) to seize and apprehend, and they are hereby required to seize and apprehend such persons so unlawfully, riotously and tumultuously continuing together after proclamation made, as aforesaid, and forthwith to carry the persons so apprehended before one or more of his majesty's justices of the peace of the county or place where such persons shall be so apprehended, in order to their being proceeded against for such their offences according to law; and that if the persons so unlawfully, riotously and tumultuously assembled, or any of them, shall happen to be killed, maimed or hurt, in the dispersing, seizing or apprehending, or endeavouring to disperse, seize or apprehend them, that then every such justice of the peace, sheriff, under-sheriff, mayor, bailiff, head-officer, high or petty constable, or other peace-officer, and all and singular persons, being aiding and assisting to them, or any of them, shall be free, discharged and indemnified, as well against the king's majesty, his heirs and successors, as against all and every other person and persons, of, for, or concerning the killing, maiming, or hurting of any such person or persons so unlawfully, riotously and tumultuously assembled, that shall happen to be so killed, maimed or hurt, as aforesaid. iv. and be it further enacted by the authority aforesaid, that if any persons unlawfully, riotously and tumultuously assembled together, to the disturbance of the publick peace, shall unlawfully, and with force demolish or pull down, or begin to demolish or pull down any church or chapel, or any building for religious worship certified and registred according to the statute made in the first year of the reign of the late king _william_ and queen _mary_, intituled, _an act for exempting their majesty's protestant subjects dissenting from the church of_ england _from the penalties of certain laws_, or any dwelling-house, barn, stable, or other out-house, that then every such demolishing, or pulling down, or beginning to demolish, or pull down, shall be adjudged felony without benefit of clergy, and the offenders therein shall be adjudged felons, and shall suffer death as in case of felony, without benefit of clergy. v. provided always, and be it further enacted by the authority aforesaid, that if any person or persons do, or shall, with force and arms, wilfully and knowingly oppose, obstruct, or in any manner wilfully and knowingly lett, hinder, or hurt any person or persons that shall begin to proclaim, or go to proclaim according to the proclamation hereby directed to be made, whereby such proclamation shall not be made, that then every such apposing, obstructing, letting, hindering or hurting such person or persons, so beginning or going to make such proclamation, as aforesaid, shall be adjudged felony without benefit of clergy, and the offenders therein shall be adjudged felons, and shall suffer death as in case of felony, without benefit of clergy; and that also every such person or persons so being unlawfully, riotously and tumultuously assembled, to the number of twelve, as aforesaid, or more, to whom proclamation should or ought to have been made if the same had not been hindred, as aforesaid, shall likewise, in case they or any of them, to the number of twelve or more, shall continue together, and not disperse themselves within one hour after such lett or hindrance so made, having knowledge of such lett or hindrance so made, shall be adjudged felons, and shall suffer death as in case of felony, without benefit of clergy. vi. and be it further enacted by the authority aforesaid, that if after the said last day of _july_ one thousand seven hundred and fifteen, any such church or chapel, or any such building for religious worship, or any such dwelling-house, barn, stable, or other out-house, shall be demolished or pulled down wholly, or in part, by any persons so unlawfully, riotously and tumultuously assembled, that then, in case such church, chapel, building for religious worship, dwelling-house, barn, stable, or out-house, shall be out of any city or town, that is either a county of itself, or is not within any hundred, that then the inhabitants of the hundred in which such damage shall be done, shall be liable to yield damages to the person or persons injured and damnified by such demolishing or pulling down wholly or in part; and such damages shall and may be recovered by action to be brought in any of his majesty's courts of record at _westminster_, (wherein no effoin, protection or wager of law, or any imparlance shall be allowed) by the person or persons damnified thereby, against any two or more of the inhabitants of such hundred, such action for damages to any church or chapel to be brought in the name of the rector, vicar or curate of such church or chapel that shall be so damnified, in trust for applying the damages to be recovered in rebuilding or repairing such church or chapel; and that judgment being given for the plaintiff or plaintiffs in such action, the damages so to be recovered shall, at the request of such plaintiff or plaintiffs, his or their executors or administrators, be raised and levied on the inhabitants of such hundred, and paid to such plaintiff or plaintiffs, in such manner and form, and by such ways and means, as are provided by the statute made in the seven and twentieth year of the reign of queen _elizabeth_, for reimbursing the person or persons on whom any money recovered against any hundred by any party robbed, shall be levied: and in case any such church, chapel, building for religious worship, dwelling-house, barn, stable, or out-house so damnified, shall be in any city or town that is either a county of itself, or is not within any hundred, that then such damages shall and may be recovered by action to be brought in manner aforesaid (where no effoin, protection or wager of law, or any imparlance shall be allowed) against two or more inhabitants of such city or town; and judgment being given for the plaintiff or plaintiffs in such action, the damages so to be recovered shall, at the request of such plaintiff or plaintiffs, his or their executors or administrators, made to the justices of the peace of such city or town at any quarter-sessions to be holden for the said city or town, be raised and levied on the inhabitants of such city or town, and paid to such plaintiff or plaintiffs, in such manner and form, and by such ways and means, as are provided by the said statute made in the seven and twentieth year of the reign of queen _elizabeth_, for reimbursing the person or persons on whom any money recovered against any hundred by any party robbed, shall be levied. vii. and be it further enacted by the authority aforesaid, that this act shall be openly read at every quarter-session, and at every leet or law-day. viii. provided always, that no person or persons shall be prosecuted by virtue of this act, for any offence or offences committed contrary to the same, unless such prosecution be commenced within twelve months after the offence committed. ix. and be it further enacted by the authority aforesaid, that the sheriffs and their deputies, stewards and their deputies, bailies of regalities and their deputies, magistrates of royal boroughs, and all other inferior judges and magistrates, and also all high and petty constables, or other peace-officers of any county, stewartry, city or town, within that part of _great britain_ called _scotland_, shall have the same powers and authority for putting this present act in execution within _scotland_, as the justices of the peace and other magistrates aforesaid, respectively have by virtue of this act, within and for the other parts of this kingdom; and that all and every person and persons who shall at any time be convicted of any the offences aforementioned, within that part of _great britain_ called _scotland_, shall for every such offence incur and suffer the pain of death, and confiscation of moveables: and also that all prosecutions for repairing the damages of any church or chapel, or any building for religious worship, or any dwelling-house, barn, stable or out-house, which shall be demolished or pulled down in whole or in part, within _scotland_, by any persons unlawfully, riotously or tumultuously assembled, shall and may be recovered by summar action, at the instance of the party aggrieved, his or her heirs or executors, against the county, stewartry, city or borough respectively, where such disorders shall happen, the magistrates being summoned in the ordinary form, and the several counties and stewartries called by edictal citation at the market-cross of the head borough of such county or stewartry respectively, and that in general, without mentioning their names and designations. x. provided, and it is hereby declared, that this act shall extend to all places for religious worship, in that part of _great britain_ called _scotland_, which are tolerated by law, and where his majesty king _george_, the prince and princess of _wales_, and their issue, are prayed for in express words. none gutenberg department of the interior ethnological survey publications volume iv, part i studies in moro history, law, and religion by najeeb m. saleeby manila bureau of public printing letter of transmittal department of the interior, the ethnological survey, manila, december , . sir: i have the honor to transmit a series of papers on moro history, law, and religion consisting of original studies and translations from moro texts made by dr. najeeb m. saleeby. i recommend that these papers be published as part i of volume iv of the scientific studies edited by the survey. very respectfully, merton l. miller, acting chief of the ethnological survey. hon. dean c. worcester, secretary of the interior, manila, p. i. contents page chapter i history of magindanao magindanao history and genealogies introduction the transliteration geographical sketch of the chief moro settlements mentioned in the tarsila of mindanao the mythology of mindanao manuscripts: i. from adam to mohammed genealogy of mohammed translation ii. genealogy of kabungsuwan and his coming to magindanao, or the conversion of magindanao to islam introduction translation iii. genealogy of bwayan introduction translation iv. history of the dumatus and the conversion of mindanao to islam introduction translation v. oldest copy of the genealogy of magindanao and the iranun datus introduction translation vi. history and genealogy of magindanao proper introduction translation vii. genealogy of bagumbayan introduction translation history of bagumbayan viii. ancestors of the datus of mindanao introduction translation history of magindanao chapter ii laws of the moros general introduction the luwaran, or the laws of magindanao introduction translation of the luwaran, the magindanao code of laws arabic marginal quotations of the luwaran introduction translation of the arabic marginal quotations of the luwaran transliteration of articles i to viii of the luwaran sulu codes the principal sulu code introduction the code the new sulu code introduction the code chapter iii two sulu orations sulu oration for the feast of ramadan sulu friday oration illustrations after page plate i. first page of an original manuscript copy of the luwaran ii. second page of an original manuscript copy of the luwaran iii. third page of an original manuscript copy of the luwaran iv. fourth page of an original manuscript copy of the luwaran v. first page of the sulu code made and used by sultan jamalu-l-a'lam vi. second page of the sulu code made and used by sultan jamalu-l-a'lam vii. third page of the sulu code made and used by sultan jamalu-l-a'lam viii. fourth page of the sulu code made and used by sultan jamalu-l-a'lam ix. first page of the new sulu code in the sulu dialect x. second page of the new sulu code in the sulu dialect xi. first page of the sulu oration for the feast of ramadan xii. second page of the sulu oration for the feast of ramadan xiii. third page of the sulu oration for the feast of ramadan xiv. first page of the sulu friday oration xv. second page of the sulu friday oration xvi. third page of the sulu friday oration diagrams no. . rulers of bwayan from the first datu, mamu . rulers of bwayan from maytum, to the present time . rulers of magindanao from kabungsuwan to sultan pakir mawlana kamza . rulers of magindanao from sultan pakir mawlana kamza to the present time . rulers of bagumbayan from raja bwayan chapter i history of magindanao magindanao history and genealogies introduction the history of mindanao prior to the advent of islam is traditional and mythological, and no effort has been made to put it on record. with islam came knowledge, art, and civilization. a new system of government was instituted and its records were registered. tarsila [ ] were written and the noble lineage of the datus was carefully kept. each sultanate or datuship kept a separate genealogy. these genealogies, called tarsila or salsila, were very limited in their scope and brief in their narration of events. they are our only source of written information on the early history of the moros, and are valuable on that account. previously the moros withheld these tarsila and kept them away from all foreigners and non-mohammedans; but their attitude has changed lately, and several different salsila were secured from the chief datus of the rio grande valley. the original manuscripts could not be bought, but exact and true copies of the same have been secured and translated and their translations are herein published for the first time. the transliteration these tarsila are written in the magindanao dialect with arabic characters, and a great part of their text is magindanao names which have never yet been expressed by means of romanic characters. in translating these tarsila such a large number of words have to be transliterated that it is deemed necessary to adopt a system of transliteration which can be easily understood by every english reader and which is more adequate to express magindanao sounds than either spanish or english. such a system is herein adopted and is briefly described as follows: with the exception of ng and sh, the characters used in this system are simple and represent simple sounds only. every radical modification of a certain simple sound is regarded as a different simple sound and is represented by a separate and distinct character. every compound sound is represented by those characters that express its simple constituent sounds. it is an unvarying rule in this system that every character represents an invariable sound and every sound has only one invariable character. the magindanao dialect has only twenty-seven simple sounds and can be expressed by twenty-seven simple characters. these characters are the following: a, a, i, i, u, u, u, b, d, g, ng, h, j, k l, m, n, ñ, p, q, r, s, sh, t, w, y, z the sounds which these characters represent conform very closely to the original roman sounds of the letters. a is the short sound of a; it is pronounced midway between the a in bad and the e in bed a is pronounced as the a in far, father i is pronounced as the i in fin, ill i is pronounced as the i in machine, police u is pronounced as the u in put, push u is pronounced as the u in rude, flute u is a midvowel, pronounced with the tongue slightly moved from its normal position; it is intermediate between u and e, and is somewhat related to the u in hurt b, d, k, l, m, n, p, r, s, t are pronounced as in english g is always hard, as the g in gold, get ng has a guttural-nasal sound like the ng in ring h has an aspirate sound and should be always pronounced like the h in hill, behind j is rarely used; when used it is pronounced like the s in adhesion, vision ñ has a distinct palato-nasal sound and is related to the spanish ñ in señor; it is generally followed by ya q is a clicking, guttural sound related to k sh is equivalent to sh in ship w is always consonantal and sounds like the w in we, twin, water y is always consonantal and sounds like the y in you, yes, beyond z is pronounced midway between z and s the triphthongs herein expressed by tsha and nya are used in words of malay origin, and are represented by single characters in malay and magindanao. in many cases when u precedes w and i precedes y the natives omit the u and the i, and the same word may be written either with or without the u or the i. when written they are pronounced very short; u at the beginning of a word, as in undu, unggu, is often omitted both in pronunciation and in writing. such words may be written ndu and nggu. to write magindanao words by means of arabic characters correctly a certain knowledge of arabic grammar and orthography is necessary. the moros lack that knowledge and write very inaccurately and inconsistently. they neither punctuate nor use the accent sign. in transliterating these tarsila that pronunciation which seemed consistent and characteristic of each tarsila was adopted in the transliteration of the same. the text is punctuated. the accent sign is used very frequently. it is generally omitted when the accent is upon the first syllable in words of two syllables and when it is upon the syllable containing the long vowel. some stress should be put on the last syllable as a rule. the magindanao tongue is energetic and strong. its pronunciation is generally forcible, the last syllable being spoken abruptly and with a certain amount of stress. the word mohammed is written with o in spite of the fact that it is pronounced with u sound in both arabic and magindanao. the combinations ay, ay, aw, aw are not diphthongs, but simple syllables. the y and w in these cases and in all cases where they precede a vowel have pure and distinct consonantal sounds. a geographical sketch of the chief moro settlements mentioned in the tarsila of mindanao the term mindanao [ ] or magindanao was originally given to the town now known as cotabato and its immediate vicinity. as the power of the sultan of magindanao extended over the adjacent territory it was next applied to the lower rio grande valley and later to all the valley and the whole seacoast that was brought under the rule of the sultan. the word is derived from the root "danao," which means inundation by a river, lake, or sea. the derivative "mindanao" means "inundated" or "that which is inundated." "magindanao" means "that which has inundation." this is the most appropriate term which could have been given to this land. for more than miles from the sea the rio grande, aided by the rise of the tide, periodically overflows its banks and floods all the adjacent lands. in the rainy season this inundation extends farther up and includes an extensive tract of country. the word "cotabato" is in moro kuta watu, which means a stone fort. batu is the equivalent of watu in malay, sulu, tagalog, and visaya. this name is very modern, for the older maps that are still in use give the name mindanao in place of cotabato. the little stream that rises in the sulphur springs of cotabato and empties into the rio grande at its junction with the matampay in front of the present guardhouse is still known as the stream of magindanao. the name of the rio grande in the magindanao dialect is "pulangi," which means "large river." the rio grande divides, miles before it reaches the sea, into the north branch and the south branch. cotabato is situated on the left bank of the north branch, about miles from its mouth. the hill of cotabato is called "tantawan," which means "extensive view." paygwan means "the place of washing," and is on the left bank of the river at its mouth and above the bar. the spanish maps give it as paiuan. tinundan is at the mouth of a dead estuary of the same name that joins the pulangi about half a mile above paygwan and on the same side. slangan is the western part of present cotabato and extends along the manday stream. the moros call the manday "masurut." simway extends along the river of the same name for about miles from its mouth and lies about miles north of cotabato. the matampay river is a dead stream which joins the pulangi at cotabato. tagiman is the name of an old settlement built on the matampay river some distance above cotabato. it is now called binilwan. matampay and lusudun were built on the matampay river east of cotabato. katitwan is an old settlement on the right bank of the river miles below libungan. libungan is built at the junction of a river of the same name with the pulangi, about miles above cotabato. the point at the fork is called tambao. three miles below tambao on the right bank of the south branch is the site of bagumbayan. three miles below bagumbayan on the left bank of the river is taviran or tapidan. ten miles below taviran comes tamontaka, which is nearly south of cotabato and about miles distant. tamontaka is about miles from the mouth of the south branch of the pulangi. lumbayanági lies a little below tamontaka, on the right bank of the river. immediately above the fork and on the left bank of the main river lies the old site of kabuntalan. fourteen miles above the fork lies dulawan, the settlement at present occupied by datu piang. here empties one of the largest tributaries of the pulangi, which is navigable by launches for miles farther up, to sapakan, datu utu's main residence. rakungan lies in the foothills of the tiruray mountains about miles south of sapakan. talayan lies in the foothills of the tiruray mountains miles southwest of dulawan. two miles below dulawan lies the old site of bwayan, on the left bank of the pulangi. opposite bwayan and dulawan lies the land of kudarangan. tinunkup is reina regente and kabarukan is the wooded hill beyond. sarunayan is the stretch of country lying north of reina regente and northeast of kudarangan and extending to the base of the kulingtan mountains, which separate the rio grande valley from the ranao region. the country occupying the declivities of these mountains north of sarunayan is called pidatan. bagu ingud is an old settlement that lies along the left bank of the river about or miles above reina regente. matbangan is on the right bank of the river and extends a short distance below piket. the malitigaw or malidigaw is a large tributary of the pulangi, about miles above piket. matinggawan is located at the junction of the kabakan tributary and about miles above piket. it is the chief settlement of the last moro district in the rio grande valley whose farthest boundary is the mulita stream, which is about miles by river above cotabato. immediately south of the mouth of the south branch of the rio grande and rising above the seashore at linuk is the lofty and picturesque pyramidal peak of mount kabalalan. from kabalalan and the hills of taviran there stretches an extensive mountainous region or table-land which extends as far south as the bay of sarangani. this table-land is designated as the tiruray table-land or mountains for the reason that its northern half is inhabited by the tribe of pagans of the same name who are not met with anywhere else. the bay of sarangani is called in moro sugud bwayan. sugud means "bay," and bwayan is the chief settlement at the head of the bay. north of the head of sarangani bay and at the southern terminus of one of the ranges of the apo system of mountains towers the picturesque and conical peak of mount matutun. matutun means "burning," and the mountain is an extinct volcano. lying between matutun on the east and the previously mentioned table-land on the west is the country of talik. north of talik lie lake buluan or bulwan and farther north lake ligwasan, which empties into the rio grande through a stream called maytum ig or black water. this junction occurs at kukmun, about or miles above reina regente. balabagan is about miles south of malabang. magulalung is in the neighborhood of balabagan. the iranun sultanate was on the shore of illana bay, and the term iranun signifies, in general, the people who live along the shores of that bay. iranun is also pronounced and written as ilanun; hence the corrupted spanish name given to the bay. the former iranun sultanate must have occupied the country in the vicinity of malabang. tubuk is the territory immediately bordering on malabang to the north of the malabang stream. baras lies a few miles north of malabang. ramitan is in the immediate vicinity of baras. malalis is near tukurun. dinas is the principal settlement on the western coast of illana bay. kumaladan is at the head of dumanquilas bay. sibugay is the name of the large bay east of the zamboanga peninsula. the word "ranao" means a lake and is the name the moros give to the upland lake lying midway between malabang and iligan and to the region surrounding the lake. the mountain range separating the ranao table-land from the rio grande valley is called the kulingtan range on account of the resemblance its peaks bear to the knobs of the row of kulingtan on which the moros make their music. the highest peak in this range north of parang and above barira is supposed to be mount bita. the highest ridge west of ranao is called mount gurayn, at the base of which lies the settlement of bacolod or bakulud. the ranao settlements which are mentioned in the tarsila are kadingilan, bayan, makadar, and bakayawan in the south, and the bayabaw settlements of marawi (marahui), madaya, and others in the north; also sikun, didagun, and dupilas. at the time of the spanish invasion of mindanao all the southern and western shores of the island of mindanao except the eastern shore of illana bay were ruled and controlled by the sultan and datus of magindanao. the ranao inhabitants are related to the iranun in language and tribal characteristics. the word mindanao unless restricted by the sense of the sentence is generally used to mean the island of mindanao, while the term magindanao is limited to the old district or town of cotabato proper. the mythology of mindanao long ago, before the days of kabungsuwan, magindanao was covered by water and the sea extended all over the lowlands and nothing could be seen but mountains. the people lived on the highlands on both sides. they were numerous and prosperous, and many villages and settlements arose everywhere. but their prosperity and peace did not last very long. there appeared in the land pernicious monsters which devoured every human being they could reach. one of these terrible animals was called kurita. it had many limbs and lived partly on land and partly in the sea. it haunted mount kabalalan [ ] and extirpated all animal life in its vicinity. the second was called tarabusaw. this ugly creature had the form of a man, but was very much larger. it was extremely voracious and spread terror far and wide. it haunted mount matutun and its neighborhood. the third was a monstrous bird called pah. [ ] this bird was so large when on the wing that it covered the sun and produced darkness underneath. its egg was as large as a house. it haunted mount bita and the eastern ranao region. it devoured the people and devastated the land. the people were awe-struck, and those who escaped hid themselves in the caves of the mountains. the fourth was a dreadful bird, also, which had seven heads. it lived in mount gurayn and the adjacent country. the havoc was complete and the ruin of the land was awful. the sad news found its way to strange and far lands, and all nations felt sorry for the fate that befell mindanao. when the news reached raja indarapatra, the king of mantapuli, it grieved him very much and filled his heart with sympathy. raja indarapatra called his brother, raja sulayman (solomon) and asked him to come to mindanao to save the land from those destructive animals. raja sulayman was moved with sorrow, mingled with enthusiasm and zeal, and consented to come. raja indarapatra handed to his brother his ring and his kris, juru pakal, [ ] and wished him safety and success. but before they parted raja indarapatra took a sapling and planted it in the ground in front of his window. this he thought was a sure sign by which he could tell what would happen to sulayman after his departure. he said to sulayman, "if this tree lives, you will live also; and if this tree dies, you will die too." raja sulayman left mantapuli and came over to mindanao in the air. he neither walked nor used a boat. the first place he reached was kabalalan. there he stood on the summit of the mountain and viewed the land and the villages, but he could not see a single human being anywhere. the sight was woeful, and raja sulayman exclaimed, "alas, how pitiful and dreadful is this devastation!" as sulayman uttered these words the whole mountain moved and shook, and suddenly there came out of the ground a dreadful animal which attacked sulayman and fixed its claws in his flesh. the minute sulayman saw the kurita he knew that it was the evil scourge of the land, and he immediately drew his sword and cut the kurita to pieces. from there sulayman went to matutun. there he saw greater devastation and a more awful condition of affairs. as he stood on the mountain he heard a noise in the forest and saw a movement in the trees. soon there appeared tarabusaw, which drew near and gave a loud yell. it cautioned sulayman and threatened to devour him. sulayman in his turn threatened to kill tarabusaw. the animal said to sulayman, "if you kill me, i shall die the death of a martyr," and as it said these words it broke large branches from the trees and assailed sulayman. the struggle lasted a long while, until at last the animal was exhausted and fell to the ground; thereupon sulayman struck it with his sword and killed it. as the animal was dying it looked up to sulayman and congratulated him on his success. sulayman answered and said, "your previous deeds brought this death on you." the next place sulayman went to was mount bita. here the devastation was worse still. sulayman passed by many houses, but they were all vacant and not a soul lived there. "alas, what havoc and what misfortune has befallen this country!" he exclaimed, as he went on. but suddenly there came a darkness upon the land and sulayman wondered what it could mean. he looked up to the sky and beheld a wonderful and huge bird descending from the sky upon him. he at once recognized the bird and understood its purpose, and as quick as he could draw his sword he struck the bird and cut off its wing. the bird fell dead, but its wing fell on sulayman and killed him. at this same time raja indarapatra was sitting in his window, and he looked and saw the little tree wither and dry up. "alas!" he said, "raja sulayman is dead;" and he wept. sad at heart but full of determination and desire for revenge, he got up, put on his sword and belt, and came over to mindanao to search for his brother. he traveled in the air with wonderful speed and came to kabalalan first. there he looked around and saw the bones of the kurita and concluded that his brother had been there and had gone. at matutun he saw the bones of tarabusaw, but sulayman was not there. so he passed on to mount bita and resumed the search. there he saw the dead bird lying on the ground, and as he lifted the severed wing, he saw the bones of sulayman, and recognized them by means of the sword that was lying by their side. as he looked at the sword and at the bones he was overwhelmed with grief and wept with tears. raising up his head he turned around and beheld a small jar of water near him. he knew that the jar was sent down from heaven, so he took it and poured its water on the bones of his brother, and his brother came to life again. sulayman stood up, greeted his brother, and talked with him. raja indarapatra had thought that sulayman was dead, but sulayman assured him that he had not been dead, but that he had been asleep. raja indarapatra rejoiced and life and happiness filled his heart. raja sulayman returned after that to mantapuli, but raja indarapatra continued his march to mount gurayn. there he met the dreadful bird that had seven heads and killed it with his sword, juru pakal. having destroyed all these noxious animals, and having restored peace and safety to the land, raja indarapatra set himself searching for the people that might have escaped destruction. he was of the opinion that some people must have contrived to hide in the earth and that they might be alive yet. one day during his search he saw a beautiful woman at some distance, and as he hastened to meet her she disappeared quickly through a hole in the ground where she was standing. having become tired and pressed with hunger, he sat down on a rock to rest. looking around for food, he saw a pot full of uncooked rice and a big fire on the ground in front of it. coming to the fire he placed it between his legs and put the pot over his knees to cook the rice. while so occupied he heard a person laugh and exclaim, "oh, what a powerful person this man is!" he turned around and, lo, there was an old woman near by looking at him and wondering how he could cook his rice on a fire between his legs. the woman drew nearer and conversed with raja indarapatra, who ate his rice and stood talking to her. he inquired of her about her escape and about the inhabitants of the land. she answered that most of them had been killed and devoured by the pernicious animals, but that a few were still alive. she and her old husband, she said, hid in a hollow tree and could not come out from their hiding place until raja sulayman killed the awful bird, pah. the rest of the people and the datu, she continued, hid in a cave in the ground and did not dare to come out again. he urged her to lead him to the cave and show him the people, and she did so. the cave was very large, and on one side of it were the apartments of the datu and his family. he was ushered into the presence of the datu and was quickly surrounded by all the people who were in the cave. he related to them his purpose and his mission and what he had accomplished and asked them to come out and reinhabit the land. there he saw again the beautiful girl whom he had observed at the opening of the cave. she was the daughter of the datu, and the datu gave her to him in marriage in appreciation of the good he had done for them and the salvation he had brought to the land. the people came out of the cave and returned to their homes, where they lived in peace and prosperity again. at this time the sea had withdrawn and the lowland had appeared. one day as raja indarapatra was considering his return home he remembered sulayman's ring and went out to search for it. during the search he found a net near the water and stopped to fish to replenish his provisions for the continuation of the march. the net caught a quantity of buganga fish, some of which he ate. inside one of the fish he found his ring. this cheered raja indarapatra's heart and completed his joy. later he bade his father-in-law and his wife good-bye and returned to mantapuli pleased and happy. raja indarapatra's wife was pregnant at the time of their parting and a few months later gave birth to twins, a boy and a girl. the boy's name was rinamuntaw and the girl's name was rinayung. these two persons are supposed to be the ancestors of some of the ranao tribes or datus. this narration was secured from datu kali adam, who learned it from the late maharaja layla of magindanao and from alad, one of the oldest and most intelligent moros living. alad says that mantapuli was a very great city far in the land of the sunset; where, exactly, he does not know, but he is sure it was beyond the sea. mantapuli was so large, he said, and its people were so numerous, that it blurred the eyes to look at them move; they crushed the bamboo very fine if it was laid in the street one day. raja indarapatra is the mythological hero of magindanao and mantapuli is his city. these names are very frequently mentioned in moro stories, and various miracles are ascribed to them. kabalalan, matutun, bita, and gurayn are the most prominent and picturesque peaks of mindanao and ranao with which the moros are familiar. the whole narration is native and genuine, and is typical of the magindanao style and superstitions. some arabic names and mohammedan expressions have crept into the story, but they are really foreign and scarcely affect the color of the story. the animal kurita seems to bear some resemblance to the big crocodiles that abound in the rio grande river. tarabusaw may signify a large variety of ape. a heinous bird is still worshiped and is greatly feared by the tirurays and manobos who live in the mountains south of cotabato. the hateful balbal, in which all moros believe, is described as a night bird, and its call is supposed to be familiar and distinctly audible every night. what relation the names of rinamuntaw and rinayung bear to the ancestors of the ranao moros it will be very interesting to find out in the future. manuscripts manuscript no. i from adam to mohammed the genealogy of mohammed this manuscript was copied from datu mastura's book. it relates, in the dialect of magindanao, what the moros of mindanao know about adam, the death of abel, and the ancestors of the prophet mohammed. the first line is arabic and is generally written at the beginning of every book they write. the second line is malay; this also is the rule with most moro writers. the moros derived what learning they have from malay and arabic sources, and consequently take pride in what malay and arabic they know and can write; hence their custom of beginning their books with an arabic and malay introduction. literal translation of manuscript no. i in the name of god the compassionate and the merciful this chapter speaks of the story of the prophet of god, adam. adam and sitti kawa (eve) begot first the twins abdu-l-lah and amata-l-lah. they also begot abdu-r-rakman and amatu-r-rakman, other twins. they also begot habil (abel) and kalima, who were twins also. they again begot kabil (cain) and aklayma, his sister; these also were twins. a story about habil and kabil kabil killed habil in order to take away his wife. adam and sitti kawa wept on the death of habil, therefore god sent jabrayil (gabriel) to admonish them. the lord said to jabrayil, "if they simply lament for their child, i will restore him to them." the lord then replaced him by the prophet of god, sit. sit begot yanas. yanas begot kinana. kinana begot mahalayla. mahalayla begot idris. idris begot uknuk. uknuk begot mustáwsalik. [ ] lamik, nuk, samir, paksal, sakih, amir, palik, ragu, ruk, pakur, azara, ibrahim, ismayil, sabit, yaskib, yarab, batrik, taku, mukáwim, Ádadi, adnani, madi, nazar, mudri, ilyas, mudákih, karima, kinana, nadri, malik, kahri, galib, lúway, kabu, múrat, kilab, kusay, abdu-l-manap, hasim, abdu-l-mútalib, abdu-l-lah, mohammed, may the mercy and the blessing of god be his. the father of baginda (caliph or sayid) ali was talib. the father of usman was apan. the father of umar was kattab. abu bakar was surely beloved by god. [the end] manuscript no. ii the genealogy of kabungsuwan and his coming to magindanao; or, the conversion of magindanao to islam introduction part i this manuscript is a copy of the original in the possession of datu mastura of magindanao. the original copy is neat and very well written. it gives first the descent of kabungsuwan from mohammed, then a narrative of his departure from juhur, his arrival in mindanao, and the conversion of the people of mindanao to islam. the latter half of it gives the genealogy of the reigning family of bwayan from pulwa to pakih mawlana and pakaru-d-din, his brother. it is a very good type of the style and composition of the mindanao dialect. it is original and borrows nothing of its text and form from either malay or arabic. the combination of the genealogy of bwayan with the story of the conversion of magindanao to islam brings the history of bwayan into attention before that of mindanao; but, as very little is known of the early history of bwayan, it matters not when it comes. the rule of bwayan extends all the way from the head of the delta or from the kakal (canal) to bagu-ingud, which is a few miles below piket. in fact the datus of the surrounding country, all through the upper valley of the rio grande, owed more or less allegiance to the rulers of bwayan through all ages. the sultan of bwayan is known as raja bwayan. the rajas of bwayan attained a distinction and a power second to none, except that of the sultan of magindanao. the greatest datus of bwayan who have figured prominently in the recent history of the country are datu utu and datu ali of tinunkup, both of whom will be referred to later. diagram no. ends with sultan sakandar. the relation between him and sultan maytum, the next raja of bwayan, is not given in the records. the second diagram begins with sultan maytum and ends with the present generation of rulers. part ii diagrams nos. and show plainly that the sultanate of bwayan did not follow any direct line of succession, that the rajas of bwayan did not always stay at bwayan, and that bwayan was not the only capital of the sultanate. the datus and the sultans of the neighboring datuships who married the principal princesses of bwayan seem to have assumed the title of raja bwayan also. the order of succession was a very complicated one. it is not stated in the records nor can it be exactly inferred from the genealogies kept. sharif ali of sapakan gives the following order: . raja sirungan . sultan tambingag kaharu-d-din . sultan sabaraba jamalu-d-din . kayib alimu-d-din . malang jalalu-d-din . sahid amiru-d-din . sakandar jamalu-l-alam . pakir mawlana alimu-d-din . sultan maytum sharif afdal of dulawan gives the following order: . raja sirungan . datu maputi . tapudi . tamay . malang . sakandar, sultan of lakungan . burhan . jamalu-l-alam . banswil . sayid wapat . pakih . maytum these two orders represent the best opinions of the saraya or upper valley, but there is no doubt that both of them are wrong. the order of sharif ali is, generally speaking, nearer the truth. from an examination of the records the following order seems the best of all: . raja sirungan . datu maputi . tambingag . datu tapudi . baratamay . sabaraba . malang . manuk . sakandar . maytum sultan kayib given by sharif ali probably is baratamay. there is no indication in the records that tamay, burhan, jamalu-l-alam, and banswil were ever rajas of bwayan, as sharif afdal seems to think. the records that seem most reliable are those in the possession of datu mastura, which are herein translated. the missing link, as far as these records and the notes of the author are concerned, is the relation between sultan maytum and his predecessors. common opinion declares him to be a son of pakir mawlana, but this does not seem probable, and it is certainly not in the records of magindanao, though these are reasonably accurate and complete. sharif ali, in his list, makes no distinction between a successor and a son; most people have the same idea, which is very misleading, to say the least. from the facts obtainable it seems probable that sultan maytum was the son of either sultan sakandar of rakungan or datu maputi, the uncle of sakandar. this is corroborated by the fact that the chief line of descent has been in the line of datu maputi, the son of raja sirungan, and his grandson, sabaraba. the opinion of the sheikh-a-datu of mindanao is that sultan maytum was the son of datu maputi, who would be the most eligible to the succession. jamalu-l-alam mentioned here is sultan kaharu-d-din kuda of magindanao. sahid wapat, or amiru-d-din, is sultan japar sadik manamir of magindanao. mupat batwa is sultan dipatwan anwar. pakih mawlana alimu-d-din is sultan pakir mawlana kayru-d-din kamza. panglu is sultan pakaru-d-din. from sultan maytum down the succession is accurately known. the sultanate has evidently been divided. marajanun or bangun, the older brother, succeeded to bwayan and all the country lying on the left bank of the pulangi and the sapakan rivers and all the country between sapakan and the lakes of ligwasan and bulawan. bayaw, known as the sultan of kudarangan, succeeded to kudarangan and all the northern half of the sultanate. datu utu succeeded his father, marajanun, and lived first at bwayan. after the terrero campaign of he moved to sapakan. his full name is sultan anwaru-d-din utu. the sultan of kudarangan was succeeded by his son, the sultan of tambilawan. tambilawan is the name of the sultan's residence and lies on the right bank of the rio grande a short distance above kudarangan. the sultan of tambilawan is a weak leader, and the chief power of the land has fallen to his brother, datu ali, who is a noted warrior among the moros. literal translation of manuscript no. ii praise be to god. i have full satisfaction that god is my witness this book gives the genealogy of the descendants of the apostle of god who came into magindanao. it is learned that the apostle of god begot patima zuhrah, who begot sarip [ ] hasan and sarip husayn. the latter begot sarip zayna-l-abidin; sarip mohammadu-l-bakir; sarip japar sadik; sarip ali; sarip isa; sarip akmad; sarip abdu-l-lah; sarip mohammad alawi; sarip ali; sarip alawi; sarip abdu-l-lah; sarip ali; sarip mohammad; sarip abdu-l-lah; sarip akmad; sarip ali zayna-l-abidin. sarip zayna-l-abidin came to juhur and heard that the sultan of juhur, sultan sulkarnayn, had a daughter called putri jusul asikin. the sarip married putri jusul asikin and begot sarip kabungsuwan. as sarip kubungsuwan grew up and reached maturity he obtained his father's permission and set out on a sea voyage with a large number of followers from juhur. as they got out to the open sea they unfurled their sails to make speed, but a very strong wind blew and scattered them in all directions, so that they lost track of one another. as a result sarip kabungsuwan arrived at magindanao. the others scattered to bulunay (bruney), kuran, tampasuk, sandakan, palimbang, bangjar, sulug, tubuk, and malabang. sarip kabungsuwan anchored at natúbakan, at the mouth of the rio grande. tabunaway and mamalu directed some people of magindanao to carry their net for them and went down to the mouth of the river. there they met sarip kabungsuwan, and tabunaway sent mamalu up the river to bring down all the men of magindanao. after the arrival of the men tabunaway invited kabungsuwan to accompany him to magindanao. kabungsuwan refused to accompany them unless they became moslems. tabunaway and mamalu then repeated their invitation and all of them promised to become moslems. kabungsuwan insisted that he would not land at all unless they came together then and there and were washed and became mohammedans. this they did, and on account of the bathing at that place they changed its name to paygwan. kabungsuwan then accompanied tabunaway and mamalu, and the men towed them up all the way from tinundan to magindanao. thus kabungsuwan converted to islam all the people of magindanao, matampay, slangan, simway, and katitwan. soon after his arrival in magindanao sarip kabungsuwan married putri tunina, whom mamalu found inside a stalk of bamboo. this occurred at the time tabunaway and mamalu were cutting bamboo to build their fish corral. as mamalu, who was felling the bamboo tree returned, tabunaway inquired whether all the tree was felled or not. mamalu answered that all the tree was felled except one young stalk. tabunaway then said, "finish it all, because it omens ill to our fish corral to leave that one alone." mamalu struck it and it fell down, and there came out of it a child who was called putri tunina. her little finger was wounded, for the bolo had cut through the bamboo. some time later sarip kabungsuwan and putri tunina begot three children--putri mamur, putri milagandi, and bay batula. putri mamur married malang-sa-ingud, the datu of bwayan. malang-sa-ingud died later, and pulwa, his brother, came down to magindanao and married the widow of his elder brother, putri mamur. malang-sa-ingud and pulwa were the children of budtul. budtul was the son of mamu, the first datu of bwayan. pulwa and putri mamur begot raja sirungan, who was the first raja of bwayan. raja sirungan begot datu maputi, tambingag, tangkwag, and the daughters kdaw, banitik, malilumbun, duni, and libu. datu maputi begot two daughters, gimbulanan and gawang. gawang married datu tapudi of tawlan and begot sabaraba and a daughter, dumbay. dumbay begot tamay, who married a concubine and begot linug-bulawan and the daughters nanun, pinayu, antanu, and putri. sabaraba begot datu maputi and malang, who was raja bwayan, in bwayan. malang begot sakandar, who was sultan of rakungan. tambingag begot burhan and the daughters kalima, tambil, and sinal. sinal married jamalu-l-alam, who was treacherously murdered. she bore banswil and kuning. kuning was married to sahid wapat and begot pakih mawlana and panglu, who was mupat hidayat, and the daughters salilang, entitled baya-labi, and gindulungan, who was the mother of baya-labi of lakungan. tangkwag begot mukarna and buntang, who was the son of a concubine. kdaw was married to makadulu and begot baratamay and bani. makadulu begot also undung and nawang by a concubine. baratamay married gimbulanan and begot lalanu, entitled baya budtung, who married sultan barahaman and died without offspring; she was overshadowed by panabwan, a lady of tajiman. baratamay and bani were both born of a princess; so one day baratamay said to bani, "you rule bwayan, for i am going away and shall be absent," and baratamay left for sulug. there he married a lady of sulug and begot pangyan ampay. some time after that baratamay returned to the land of bwayan and went up as far as bagu ingud. there he married a lady of bagu ingud and begot munawal and gangga. munawal married mupat batwa and begot manuk, raja bwayan in bagu ingud. manuk begot manman, tapudi, and raja muda of matingawan. manman was sultan of bagu ingud. baratamay begot also tuntu, who begot dungkulang, a datu of kabulukan, and ambuludtu, and ugu niga; also pandaligun, anib, kabaw, manabu, talibubu, danaw, and the daughters gayang and tundwan. these were all the children of baratamay--in all, fourteen. [the end] manuscript no. iii the genealogy of bwayan introduction this manuscript is copied from a scroll written for the sultan of kudarangan by twan kali, a noted moro judge who was in the service of the sultan. it was obtained through the favor of sharif afdal, the son-in-law of the late sultan. the few books or documents belonging to the family of bwayan or kudarangan that i have seen are neat and well written. the dialect spoken in saraya differs a little from that of magindanao, but in the main they are one and the same dialect. this manuscript is strictly magindanao in its dialect and in its style. the first two pages of this copy give the genealogy of kabungsuwan from mohammed and adam; it is similar to that of manuscripts nos. i and ii, and ends with putri mamur, the daughter of sarip kabungsuwan, who married pulwa, the first mohammedan datu of bwayan. the second part gives the descendants of pulwa and the genealogy of the rajas of bwayan. this is, however, incomplete and deficient. it stops at the seventh generation, which is practically midway, and does not distinctly state who were the rajas of bwayan. it is fuller than manuscript no. ii in giving the descendants of all the sons of raja sirungan, but it does not proceed in the main line of descent as far and as fully as manuscript no. ii. the original scroll from which this copy was taken is evidently older than datu mastura's copy. literal translation of manuscript no. iii part i ... mahlayl begot uknuk, who is idris. idris begot mustawsilik, lamik, the prophet of god nuh, samir, arpaksal, sakih, amir, palih, ragu, saruk, pakur, azara, the prophet of god ibrahim, ismayil, sabit, yuskab, yarab, yatrah, taku, makum, adadi, adnani, madi, nazar, madri, ilyas, mudrika, karima, kinana, nalil, malik, kahri, galib, lway, kabun, murrat, kilab, kusay, abdul-manap, hashim, abd-l-muttalib, abd-l-lah, mohammed, the apostle of god. the apostle of god, mohammed, begot patima zuhrah; sayid sarip husayn; sarip ali akbar and ali asgar and zayna-l-abidin and patima; sarip zayna-l-abidin begot sarip mohammed; bakir; sarip japar sadik; sarip ali; sarip mohammed; sarip isa; sarip akmad; sarip abdullah; sarip alawi; sarip mohammed; sarip alawi; sarip ali; sarip mohammed; sarip alawi; sarip abdu-r-rakman; sarip akmad; sarip abdullah; sarip ali; sarip mohammed; sarip abdullah; sarip akmad; sarip ali; sarip mohammed; sarip husayn; sarip ali bakar; sarip ali, not the former ali, but the one who came to juhur and married the sister of sultan iskandar of juhur. they begot sarip kabungsuwan. sarip kabungsuwan begot, in juhur, sambgan and a daughter, mazawang. some time after that sarip kabungsuwan came to magindanao and married putri tunina, whom tabunaway and mamalu found inside the bamboo. by putri tunina he begot putri milagandi and putri mamur. sarip kabungsuwan brought his children sambgan and mazawang to the town of magindanao. this finishes the book relative to the earlier ancestors. part ii the first ruler of bwayan was mamu. in the name of god the compassionate and merciful. the first datu of the town of bwayan was mamu. mamu begot budtul. budtul begot pulwa and malang-sa-ingud. pulwa married putri mamur in the town of magindanao. putri mamur was the daughter of sarip kabungsuwan from putri tunina, whom tabunaway and mamalu found inside the bamboo. pulwa begot raja sirungan from putri mamur. by another wife he begot dikaya; by a concubine, sababnun, butaku, and balatukay. raja sirungan begot datu maputi, kdaw, tambingag, tungkwang, binitis, malilimbun, duni, libu. the children of datu maputi were all girls. the oldest was gimbulanan, another was gawang. tapudi, a tawlan datu, married gayang and begot sabaraba and a daughter, dumbay. dumbay begot tamay. tamay married a concubine and begot linug bulawan and the daughters nanum, pinayu, antanu, and putri. sabaraba begot datu maputi and malang. by a concubine he begot kuba, ndaw, and taming. malang begot sakandar, who was entitled sultan of lakungan. kdaw married makadulu and begot baratamay, and bani, and nawung, a datu of talayan, and undung, a datu of matabangan. baratamay married gimbulanan, the daughter of datu maputi, and begot lalanu, the lady of budtung, who had no children. by a sulu lady baratamay begot pangyan ampay; by a lady of bagu ingud, munawal, danaw, gayang, and tindwan; by a concubine, ambuludtu, ugu niga, ani, gabaw, ganggay, manabu, talibubu, pundu, tuntu, sawal; by another concubine, pandaligan, he begot also magalang, who married a lady from lagindingan. tambingag, the son of raja sirungan, married sinal and begot burhan; by a concubine he begot kasim and tambil. tungkwang begot mukarna and buntang. binitis begot sayim, dimamamala, bunsal, piniyata, kasangkalan, miza, tapuli, buludan, salab; a daughter, kanggay, and dimakaling. malilimbun begot manding, the father of panalan samu. duni, the daughter of raja sirungan, married the datu of bansayan, whose name was arugung, and bore burwa, and a daughter called indingu. after the death of the datu of bansayan she married alip and bore ugu. dikaya, the son of pulwa by a concubine, begot duka. duka married a lady of malitigaw called rantyan, whose mother was agb. to duka and rantyan there were born bulus, manalidtu, pwi, and a daughter, miyandung. burwa married nungku, the sister of nuni, and begot muluk, nanak, banálak, mama-sa-palu, kalangit, and wapagáy. later malilimbu married balbal, the datu of magulaling, and bore abad, mama-rapat, and a daughter, gansawu. gansawu married uku, the son of punduma from ampas, and bore alawa-d-din, also called aluyudan and jannatu-n-nayim, and alim, and ariraw, and igang or buging. jannatu-n-nayim begot baduyan or adwi, inal, limbayan, sayimbu, bayu, mbayu. he also begot tungkaling, buliyungan, and anggurung by a concubine. adwi and dungklang married and there were born to them dunding, ratkan, pataw, gayang, ariraw, and pimbarat, who was sultan of balabagan. ratkan, the datu of isikun, begot dimalawang and marang. dimalawang begot arani. arani begot antaw, sayu, and arawa. arawa married bayu and begot baya. manuscript no. iv history of the dumatus and the conversion of mindanao to islam introduction this manuscript is a correct copy of the original which is in the possession of datu kali adam of kalangnan, one of the principal present representatives of the dumatus. the dumatus are a distinct class of the moros of magindanao who trace their origin back to the former chiefs of the country who reigned before the introduction of mohammedanism. the original was written by datu kali adam himself, copied from a previous manuscript handed down to him from his father, who was a prominent judge, with some later additions of his own. it was neither neat nor well kept. it abounds with grammatical mistakes and has several errors in the text. its style is mixed; ranao words, pronouns, and terminations occur; still, in general it is a fair specimen of the literature of the magindanao dialect. it is the best authority on its subject, and is greatly valued by the people. it is the oldest manuscript known on this subject. the ruler of magindanao at the time of kabungsuwan's arrival was tabunaway. tabunaway was not a datu; he was a timuway. the word timuway or timway means chief or leader, and is still generally used by the tirurays and manobos and other hill tribes. kabungsuwan evidently conquered magindanao, and its sovereignty passed over from tabunaway to him, and to his descendants after him. the moros greatly regard and respect every mohammedan who is related to the prophet, and look upon every arabian as of noble birth and equal in rank to their datu class. descent from kabungsuwan constitutes all their claim to nobility and their right to the datuship. the descendants of tabunaway are naturally jealous. they claim to have come from an arabian ancestor who is descended from the prophet, and take great pride in the fact. they assert that the datus omitted this part of the history from their books intentionally in order to give more importance to kabungsuwan and to their own descent. the descendants of tabunaway are called dumatus, which is the future tense of the verb datu. the dumatus are well known, and i have met several of them. chief among them i mention datu mawlana sa-magindanao and datu kali adam. the former has lately been favored with the honorary title of datu by datu mastura, because his mother was a datu's daughter and he personally deserved the honor. both datu mawlana and datu kali claim that sharif maraja, the father of tabunaway, was an uncle of sharif kabungsuwan and that he and his children were mohammedans prior to the arrival of kabungsuwan, though their people were not so until kabungsuwan converted them. the story that the angels brought paradise to mindanao does not appear in the other manuscripts, but it is generally believed by all the datus and people of magindanao. i heard both datu mastura and datu mawlana sa-magindanao affirm the fact. they say that a part of the white earth of paradise was left in the hill behind cotabato and they call it the sacred dust. it was the custom in magindanao to bring this earth before the new sultan after his appointment that he might step on it for the confirmation of his sultanate. they believed no sultan could be successful and prosperous in his reign unless he performed this rite. the last sultan who obeyed this custom was sultan untung qudratul-lah, datu mastura's father, during the latter part of whose reign the spaniards came into magindanao and occupied cotabato. the later three sultans did not perform this rite; this the moros cite as the cause of the decline of the sultans' power and the lack of prosperity in the country. they believe this white earth still exists in the hill of cotabato, but nobody can find it except the oldest living dumatus whose forefathers have not intermarried with either datus or the common people, and to whom the secret has been handed down from tabunaway. this they keep away from everybody except their children. the dumatus are a privileged class of people, and claim they can follow any datu they choose, and that they should not pay any tribute. they assert that when tabunaway resigned his sovereignty in favor of his older brother, kabungsuwan, he reserved this privilege for his children, which privilege kabungsuwan promised to respect. for these reasons the dumatus keep their own records of the history of their country, and the genealogy of their line. sambug, who is mentioned here, is stated to be the son of tabunaway. manuscript no. iii states that kabungsuwan had a son named sambgan, who was born in juhur. whether these two are one and the same name or not it is very difficult to say. probably they are two different names. literal translation of manuscript no. iv the genealogy and history of the people of mindanao the land of paradise was brought by the angels from the west (arabia) to mindanao. later the angels moved paradise to madinat, but the earth did not balance and tipped on the side of mindanao. they then measured the earth to find its center, but it had none. then the angels took paradise and carried it to mecca, but a part of it remained in mindanao. sharif awliya knew that and came to mindanao to search for it. he saw a column of smoke, and as he came to this smoke he found that it was a woman. he took her and married her and begot a daughter whose name was paramisúli, whom he left in the blessed land. afterwards there came from juhur sharif hasan and sharif maraja, who were brothers. sharif hasan came to sulu, and from him descended all the datus of sulu. sharif maraja had two sons, sharif bidayan and sharif timbangan. he or one of his sons lived at basilan. sharif hasan and sharif maraja were followed by sharif kabungsuwan, a nephew of sharif maraja. sharif maraja was the first mohammedan who came to bawangin, which is mindanao. he first came to slangan (the western part of cotabato), where he saw burak (an animal intermediate between a bird and a horse) light on a bamboo tree. burak slipped and let fall his load, which was the lady, paramisúli. sharif maraja dived into the river and brought up paramisúli; later he married her and begot several children. the oldest of his children was tabunaway, the youngest mamalu. the daughters were sarabanun and pindaw. some time after that sharif kabungsuwan came from juhur and anchored at tinundan (a stream or estuary very near the mouth of the rio grande of mindanao). there was nobody there then; but the sharif saw a taro plant and a cornstalk floating down, and said, "there must be some people at the head of this river; let us wait until they come down." later there came down the river manúmbali, the datu of slangan, with seven men, to fish at tinundan. they saw sharif kabungsuwan. the sharif called them, but they could not understand him. he beckoned to them, but one of them died on that account, and they were frightened and returned. later the people of katittwan, having heard of this, came down the river to see the sharif, but they also could not understand him, and one of their men died of the same cause. they again returned and told tabunaway, who came down the river and saw sharif kabungsuwan. the sharif called to tabunaway and mamalu, who both understood him and came into his boat. tabunaway saw the ring of sharif kabungsuwan, and the sharif observed the ring of tabunaway. the sharif then asked tabunaway how he had become possessed of this ring, and if he had bought or inherited it. tabunaway replied that he had not bought the ring, but that he had inherited it. "then," said the sharif, "you must be a descendant of my uncle." he then informed tabunaway of his relation to him, and they became acquainted with each other. they then went up the river together in the boat of sharif kabungsuwan and came to magindanao (which is cotabato). there kabungsuwan met sarabanun, the sister of tabunaway, and asked to marry her. tabunaway consented and the sharif married sarabanun, but she died before her child was born. after the death of his father tabunaway became datu of magindanao. sitti paramisúli, the mother of tabunaway, had asked her son to bury her comb, after her death, underneath her window. this he did. the comb grew and become a large bamboo tree. as mamalu was cutting the tree one day he found a lady in one of the bamboo joints which he had cut. the blow had reached her little finger and cut it slightly. he took the child to tabunaway who told mamalu to adopt her because he had no children. they called her putri tunina, because they thought their mother had come to life again. as she was a virgin and of age she was married to sharif kabungsuwan and bore three daughters. the first daughter was called mamuranda, and married pulwa, the datu of bwayan. the second was called milagandi, and married malang-sa-ingud, who is also a datu of bwayan. the third daughter was called putri batula. sambug, the son of tabunaway, married and begot dagansina. dagansina begot ampan; ampan begot alang; alang begot dumaya, who married duyuttanan, who is from liyámin in balabagan. dumaya begot lawana and mandawa and taluwa. lawana begot bansara. bansara begot iput and ibrahim and jubayr and the following daughters: lamyuna, kalima, and malubay, the mother of sultan izra of ramitan. from lamyuna descended mohammed, whose children are gayag and sakandar and undang. kalima bore antim. antim begot jayra and tunug. iput begot karija. ibrahim begot ugu. ugu begot mintal and umar, one of whom was a judge (kali). the judge begot ruranun and gansing and mamalu and a daughter called mandi. kali ruranun begot nyaw and tarawya and mangilay. mamalu begot kudarat and dawuntánan and mantag. nyaw begot jamarun and kawali. tarawya begot anggris and sayd. mangilay begot abbas and payag and dadaw. mandi begot gawi and mindang and inding. gawi begot lambway and bkaran and gandayra. mindang begot rakman. inding begot dindaw. manuscript no. v the oldest copy of the genealogy of magindanao and the iranun datus introduction this manuscript is a copy of the original which is in the possession of datu kali adam of kalangnan mentioned in the previous manuscript (no. iv). it is written partly in the mindanao dialect and partly in malay. it refers to three subjects and comprises three distinct parts. the first part includes the first three pages and three lines of the fourth page. the first two pages are written in the mindanao dialect and the rest in malay. it gives the genealogy of many of the iranun datus, but is very ambiguous and lacks interest. the malay part is written by the same mindanao author, no doubt, and is neither correctly written nor clear. this part has no special interest except for the student who desires to investigate the oldest records referring to the origin of the ruling datus of the country. the second part is much more interesting. it is the oldest record on hand referring to the genealogy of magindanao proper with distinct information as to the source from which it was obtained. it is all in malay, but it is so poorly written and composed that its translation is a very difficult task. pakir mawlana, the authority this book claims, was one of the most intelligent sultans magindanao had. the substance of this text was transmitted in malay by pakir mawlana himself to capt. thomas forest in the year . it appears that there have always been in mindanao natives who could converse and write in malay. the statement of captain forest would lead one to infer that the book from which pakir mawlana translated was written in the native dialect, and not in malay. probably the text of this manuscript is not identical with that of pakir mawlana's copy, but derived from the same source and written in malay instead of magindanao. its text is by no means as reliable as that of manuscript no. vi, but it gives some very interesting information which is not mentioned in the other copies. sultan barahaman, to whom the principal source and authority of the tarsila is referred, was the fifth grandson of sarip kabungsuwan and the first grandson of sultan qudrat, the famous corralat of combés. he had several children who figured prominently in the history of the country, four of whom are quoted here as authorities, and who are surnamed sahid wapat, wapat batwa, jarnik, and sumannap. their full and exact titles were sultan japar sadik manamir, sultan dipatwan anwar, gugu jarnik, and datu ma-as sumannap. manamir was assassinated by his nephew, malinug, and is always referred to as sahid wapat, which means, in arabic, "dead martyr." jamalu-l-alam, the brother of barahaman, is sultan mohammed kaharu-d-din kuda, who usurped the sultanate after the death of his brother. pakih mawlana amiru din was the eldest son of sahid wapat, and his correct full title was sultan pakir mawlana mohammed kayru-d-din kamza. he is generally referred to as pakir mawlana, and is sometimes called pakih instead of pakir. though the text of this manuscript varies from that of no. vi, it very often mentions facts and names that are lacking in the latter and which help to complete the sense and the subject-matter of the tarsila. the first two words of the address paduk sari sultan do not belong to the mindanao dialect, but are malay. this tarsila ends with the children of barahaman and jamalu-l-alam, and evidently belongs to the period prior to the death of pakir mawlana, or his name and those of his brothers would otherwise have been mentioned. the third part is written in the magindanao dialect and comprises the twelfth and thirteenth pages only. it shows the exact ancestral relation that exists between the ruling datus of magindanao and the iranun datus, and throws considerable light upon the nature and the tribal characteristics of the datuships or moro communities. the principal ancestors of the sultans of ramitan, tubuk, dissan, and tapurug were umang nagu, anta, and umbun, respectively, and they were the grandchildren of dimasangkay, the brother of kapitan lawut bwisan, whose descendants are the sultans of magindanao. ramitan lies a little north of baras and malabang. tubuk is the principal district in the immediate vicinity of malabang. dissan lies on the north shore of lake lanao. being mainly written in malay, this manuscript is of no literary value at all. that part of it written in the magindanao dialect shows a slight admixture of the iranun dialect. both its composition and style are poor, and mistakes in spelling and writing abound. literal translation of manuscript no. v part i this is the genealogy of the forefathers of rahaban. [ ] ami and palu were brothers from one father and one mother. ami begot mangqaw. mangqaw begot layna and linawan, and the sons of luntung and makabuyu. layna begot rahaban, kusin, malin, and usman. linawan begot anggab, amiru, nudin, and musa, and the daughters limbwan, ambay, and alima. luntung's sons were palu and mamangking; his daughters were idaw, ubaw, baylawa, and gnaw. makabuyu begot asan, ibrahim, kambal, dunggi, malnang, linaw, and ami. palu begot dingan, ansi, alumay, and a son, ganap. dingan begot sultan padinding. sultan padinding begot paramata, sultana wata, sultan alud, raja muda dawd of balangingi, badang, daga of lyangan, badwi, mawung, muna, and ktim. talama was the sister of maka-kuyung, the sultan of tapurug. dmak of tatarikun, the son of magi and dabulawan, begot aluyudan, palala, amilulung, dilabayan, zumukar, kandigan, makalinug, and midaray. midaray married a lady from tatarikun and begot matanug, tapu, mapundilu, and tumug. aluyudan begot anzang, dapamagi, laygu, and madayaw. madayaw begot ilunayn, datu kabu, and andabu. anzang begot antus. antus begot mpas. dapamagi begot adadang, aryung, and aryung begot bagang. layngu begot mangakut and mangakut begot daba. andabu begot maslang, kaluyunan, and umbayu. kaluyunan begot datu kayu. umbayu begot saygu. saygu begot rabsar, baypat, and binisa. binisa begot angudap and antus. matanug begot also angalin. angalin begot ujyaw and utuq. utuq begot abayug, kubag, angalin, and the daughter awyanu. abayug begot gi. gi begot saliling zaynudin. zaynudin begot ayad and the daughters ijag and alay. alay [ ] bore tarid, bayutuga, and the daughter agayun. agayun* bore badri. badri begot datu gibang. datu gibang begot mama-sati and datu badar adayaw. datu badar begot mbayug. zaynudin saliling begot also the daughters nurun, the mother of apki, and agunuku, padangan, and layma, the grandmother of diping. part ii this book is the genealogy of the descendants of hashim and kureish, who came from mecca to mindanao, bwayan, and the land of ilanun. it was obtained from pakih mawlana mohammed amiru-din, who acquired it from his father, sahid wapat. sahid wapat and his brothers umar maya, wapat batwa, jarnik, and sumannap received it from their father, barahaman, who was surnamed minuli karakmatu-l-lah, and jamalu-l-alam. later it passed into the possession of kali akmad and sapak, [ ] who married duyan. the descendant of the apostle of god, sarip mohammed, came to juhur and married a woman related to the sultan of juhur and begot sarip kabungsuwan, who came to mindanao and introduced the religion of islam. the ruler of mindanao then was raja tabunaway. kabungsuwan married banun, the sister of raja tabunaway, who died before any children were born to them. after that kabungsuwan married putri tunina, who became human and was begotten by mamalu out of the bamboo. putri tunina bore three daughters--putri milagandi, putri mamur, and putri batula. putri mamur married pulwa, raja bwayan. putri milagandi married malang-sa-ingud. putri batula married ambang. later sarip kabungsuwan married angintabu of malabang, whose mother was mazawang and whose father was sambahan. angintabu bore maka-alang, surnamed saripada, angintabu had a brother whose name was maka-apun. maka-alang married a bilan woman who was begotten out of a crow's egg, and begot bangkaya. bangkaya married two women of mindanao and begot two sons, dimasangkay and gugu sarikula, one from each wife. later he married maginut of malabang, the daughter of maka-apun, and begot kapitan lawut. dimasangkay married a woman of lusud, called mira, and another of simway who bore umun and butu-na-samar. butu-na-samar was surnamed jukulanu, but died young and had no children. dimasangkay married also ampas, the sister of sandab, and begot umburung. umburung married umun and begot nuni, who was surnamed amatanding. ampas married again pinduma. nuuni married gayang, the daughter of kapitan laawut bwisan and the sister of qudrat, who was surnamed mupat, and begot anta, nagu, umbun, and the daughters patawu, pindaw, bayu, and sa-ib. sarikula married a lady of sulug called raja putri, who was the sister of raja husayn, both of whom descended from the original rulers of sulug. raja putri begot one daughter, raja mampay. kapitan lawut married a lady of slangan called imbang, who descended from raja tabunaway, and begot a son called qudrat, and a daughter called gayang, who married nuni. qudrat married raja mampay and begot tiduray. tiduray married myayu of lwan and begot paramata asya, who was known as baya-labi. he married again angki, the daughter of natib syam by his wife sawakung of puntiyabaq, and begot two sons--barahaman, known as minuli sa-rakamatu-l-lah, and jamalu-l-alam. barahaman married a woman of tagman named panubawun and begot four sons--bagas, also known as raja muda; anwal, who was entitled paduka sari sultan and surnamed wapat batwa; jarnik, who was entitled gugu; and sumana, who was datu ma-as; also four daughters--ngway, lugung, awu, and tundug. by basing of sangir, the daughter of makalindi and timbang saribu, he begot manamir, who was entitled paduka sari sultan and surnamed sahid wapat; and tubu-tubu, entitled umar maya; maginut; atika; and patima. by a samal woman he begot datu sakaludan jamalu-d-din and manjanay. raja muda bagas begot ampwan, dayang, and bayaw by a concubine. jamalu-l-a'lam married sinal of bwayan and begot a son, banswil, and a daughter, karani. he also begot ija, ila, awu, ampan, and sayka-datu abdu-r-rakun. manamir married karani and banswil married manjanay, all of whom are first cousins, the children of barahaman and jamalu-l-a'lam. part iii amatunding married gayang, the sister of qudrat, and begot anta, nagu, and umbun and the daughters pindaw, dawa-dawa, bayu, sayib, and umang. umang was the grandmother of the sultan of ramitan. nagu was the grandfather of the sultan of tubuk. anta was the grandfather of the sultan sarip ulu of dissan. umbun was the grandfather of makakuyung, the sultan of tapurug. umbun begot burwa. burwa begot mama and nanak. nanak begot bnul, who married baya wata of kabuntalan. bnul left baya wata and went to unayan with an understanding that unless he returned in forty days their marriage would be null. bnul did not return, so baya wata married timbang sulug, and soon after gave birth to damda, whom she conceived by bnul. mana, the brother of nanak, married the daughter of the sister of the sultan of sulug and begot datu milbahar, bantilan, and datu adana. manuscript no. vi the history and genealogy of magindanao proper introduction this manuscript is a copy of the original which is in the possession of datu mastura, the best-informed datu of magindanao, and the son of sultan qudrat jamalu-l-a'lam untung, the greatest of the late sultans of magindanao. datu mastura has the best collection of magindanao books and records and owns the most reliable of the royal documents that have been preserved. this copy is one of the best specimens of magindanao literature extant. it is principally genealogy and speaks briefly of the early history of magindanao and the rise of its sultanate, its main purpose being to preserve the record of descent and determine the right of succession to the sultanate. the first page describes the birth of putri tunina and her relation to tabunaway, the ruler of magindanao. the second page describes the coming of sharif kabungsuwan to magindanao, his conversion of mindanao to islam, and his marriage to putri tunina. the third page gives an account of kabungsuwan's marriage to a princess from malabang and his descendants from her. the rest of the manuscript is a detailed account of births and descendants down to the birth of the great grandfather of the present sultan, which must have occurred shortly before the beginning of the nineteenth century. it is the most complete and the most nearly correct copy that exists. it is written at a later period than that of no. v, and covers two later generations. the history and genealogy of the nineteenth century were obtained by personal investigation and inquiry from the oldest and most reliable datus and other persons living. diagrams nos. and show the descent of the rulers of magindanao from kabungsuwan to the present time. the full names and titles of the sultans in the order of their succession are as follows: . sharif kabungsuwan . sharif maka-alang . datu bangkaya . datu dimasangkay . datu gugu sarikula . datu kapitan lawut bwisan . sultan dipatwan qudrat (corralat) . sultan dundang tidulay . sultan barahaman . sultan kaharu-d-din jamalu-l-alam kuda . sultan mohammed japar sadik manamir, generally known as sahid mupat or wapat . sultan dipatwan anwar, also known as wapat batwa . sultan mohammed tahiru-d-din malinug . sultan pakir mawlana mohammed kayru-d-din kamza, generally known as pakir mawlana or pakih mawlana . sultan pakaru-d-din . sultan mohammed amiru-l-umara alimu-d-din kibad sahriyal . sultan kawasa anwaru-d-din . sultan qudrata-l-lah jamalu-l-a'lam untung . sultan mohammed makakwa . sultan mohammed jalalu-d-din pablu, sometimes called sultan wata . sultan mangigin literal translation of manuscript no. vi in the name of god the compassionate and merciful. praise be to god the lord of the universe. i have full satisfaction that god is my witness this book speaks of the origin of the rulers of magindanao. the first known rulers were tabunaway and his brother mamalu. one day they were cutting bamboo to build a fish corral. mamalu cut down all the trees except one small stalk that was left standing alone. tabunaway then called to mamalu, "finish it up, because it omens ill to our fish corral." mamalu therefore cut it and found in it a girl whose little finger was slightly cut by a slip of the bolo. he carried the girl to tabunaway, but tabunaway told him to keep her and adopt her as his child. this girl was named by tabunaway putri tunina. on the other hand, there came out from mecca sharif ali zayna-l-abidin, who proceeded to bawangin (malaysia) and settled at juhur. here he married the daughter of sultan iskandar thul-qarnayn of juhur, whose name was jusul asiqin, and begot sharif kabungsuwan. sharif kabungsuwan came to magindanao to the mouth of the tinundan. there he met tabunaway and accompanied him to the town of magindanao. this is sharif kabungsuwan, who converted to islam all the people of magindanao, slangan, matampay, lusud, katittwan, and simway, and who was followed by all those who accepted islam in the land of magindanao. and it came to pass that tabunaway married sharif kabungsuwan to the girl that was found inside the bamboo stalk, whose name was putri tunina. to them were born three daughters--putri mamur, who married malang-sa-ingud, an older brother of pulwa; putri milagandi, who married pulwa, the datu of bwayan; and putri bay batula, who had no children. later sharif kabungsuwan married angintabu, the daughter of maka-apun, a coast datu of malabang, and begot sharif maka-alang. sharif maka-alang married buli, a bilan woman who was found by parasab in a crow's egg. there were born to them a boy called bangkaya and a girl called maginut. bangkaya married a woman of magindanao and begot dimasangkay. he also married a woman of matampay and begot gugu sarikula. later he married umbun of slangan and begot kapitan lawut bwisan and tagsan and pinwis. dimasangkay married a simway woman and begot butu-na samal, who had no offspring, and uman, a woman. he married also umpas, the sister of sandab, and begot umburung, who was not well known. gugu sarikula married raja putri, a sulug lady, who gave birth to putri mampay. he also married the sister of dasumalung of linilwan and begot gawu. kapitan lawut bwisan married ambang, the daughter of dalamba of slangan, whose son was sultan dipatwan qudrat and whose daughter was gayang. sultan dipatwan qudrat married putri and begot dundang tidulay and arawaldi. dundang tidulay married paramata asiya, a bitalan lady, and begot putri gunung lidang, who was the first bayalabi of magindanao and who had no offspring. his children from a concubine were ila and ija; from angki, the daughter of katib syam and puntyabak of sawakungan, sultan mohammed barahaman and sultan mohammed kaharu-d-din kuda. ila married tawbalay and begot gantar and lumampaw and a daughter sarabanun. ija was married to binulukan and begot maraja layla dangkaya and the following daughters: tumam, pudtad, darisay, nurun, layin, imbu, lilang, abu, and ampay, who had no offspring. sultan barahaman begot from panubawun raja muda bulagas and sultan dipatwan anwar, and gugu jarnik and datu ma-as sumannap, and a daughter anig, and gawu, and datu sakaludan jamalu-d-din, and manjani and awu and tundug, and ngwa and lugung. from lady basing, the daughter of makalindi, and timbang saribu, a lady of sangil, he begot sultan japar sadik manamir and umarmaya tubu-tubu, and the following daughters: maginut, fatima, and atik. sultan kaharu-d-din kuda married lady sinal, the daughter of datu tambinag, and begot balingkul, hajji sayk abdu-r-rakman banswil, and putri kalani kuning. by a concubine he begot maraja layla bahar, paki abdu-l-kahar ampan, and hajji sayk abdu-r-rakim, dinda, dangsabu, ila, talama. raja muda bulagas married tumbayu, a lady of bwayan, and begot baratamay and the daughters nanun, mayay, antanu, and putri. by a concubine he begot parasab, gugu ampwan, and the daughters musturi, bayu, and dabu. sultan dipatwan anwar married a lady of agakan munawal and begot raja bwayan manuk. by a bwayan lady he begot tambayu and kandug; by lady payak, sultan mohammed tahiru-d-din malinug and datu sakaludan gantar; by a concubine, datu lukus ganwi and maraja layla yusup and talinganup, and the daughters daging, dayang, dawung, and dang. gugu jarnik begot nanu and kunan. datu ma-as sumannap begot midtud-sa-ingud bani and asan. nway begot anday. awu married aradi and begot talila and andu. lugung married lubas and begot uranjib and pinaw. datu sakaludan jamalu-d-din married layma, the daughter of sultan kuda, and begot mawlana kudanding sabiru-l-lah and datu sakaludan lagat. tundug married ajipati and begot rannik and ami. by palug he begot dingan. umarmaya tubu-tubu married babak and begot sharif kunyaw and sultan digra alam and pataw. he also married andaw-mada, a tawlan lady and begot bagumba, sarabanun, and bay. by a concubine he begot jukulanu adiwa, bal, buli, and a daughter, sajar. fatima married datu gulay of sulug and begot raja baginda timbang. sultan mohammed japar sadik manamir married putri kalani kuning, the daughter of sultan kuda, and begot sultan pakir mawlana mohammed kayru-d-din kamza, sultan mohammed pakaru-d-din bulagas armansa, and samal, and the daughters bayalabi sari and gindulungan. by a concubine he begot dipatwan palti, jalalu-d-din tambi, maraja layla abdu-l-lah, maraja dinda jamburang, rastam, kahar, mamalum´pung, and the daughters amina, inam, panubawun, atshar, bitun, angki, and labyah. hajji sayk abdu-r-rakman banswil married manjani, the daughter of sultan barahaman, and begot datu sakaludan, a lingkung tidulay, and putri kintay, kaludan, the son of a concubine, japar, undung, kapitan lawut mohammed, and ibrahim, and the following daughters: duni, pindaw, and dasumbay. maraja layla bahar begot badaru-d-din and sakandar, and the daughters dina and bidury. paki hajji abdu-l-kahar ampan begot ismayil and milug. hajji sayk abdu-r-rakim begot namli, amina-l-lah, yasin kamim, mohammed, mawug, akmad, and the daughters latipa, badalya, bulawan dagayug, dindyaw, sitti. dinda married abdul patah, a sulug datu, and begot pangyan ampay. papani married sumuku and begot mahraja layla mindug and a daughter, sinal. ungki married simping and begot iday. ila married datu wata maputi and begot milug and mayug. the children of talama by dumlinaw are jiwana jaya, nasari, palawan, and a daughter, kurays. the children of maharaja layla parasab by pangyan bata, the daughter of gugu, are mayug and tahir. the children of gugu ampwan are makalapun, kanday, tawug, and udin, the last two being daughters. the children of sultan dipatwan malinug are watamama, gulay, tawpan, uku, bay mayung, dingan, and musturi. datu sakaludan a kantar, begot by nanaw, anni and mangki. maraja layla yusup begot iday, ndawmada, munay, bayu, dayang, zaman, muning, tamama, undung, ga-as, and palti. the children of datu lukus ganwi are munay from bayu, and manun and jamalya by a concubine. the children of talinganup are dindu, bungayu, ampay, nanaw, and kunan. dayang begot by tuwyla answay. dang begot by sumapa jamalu-d-din and sabdulla. panubawun begot by bagwa datu tabunaway, tamama, ulu, timbang, gindu, and ampay. the children of atshar from sultan yusup are isra-il, watababay payak, musturi, dadaw, lyaw, and kunan. bitun married mawlana taray and begot agas and kuntay. angki married raja muda kaludan and begot jamalu-d-din, milug, ismayil, ayung, ayu, and fatima. rastam married pinaw and begot dingan and kiram; he also begot indim by a concubine. maraja dinda jamburang married pinaw and begot danding, isra-il, ani, bantilan, ayung, ija, and nanun. jalalu-d-din tambi begot angkaya, panji, gulay, manalantang, lugung, mangki, anday, gayung, latipa, ami, buli, bahar, darisay, and pataw; the last eight being females. dipatwan palti married buli and begot sarabanun. he also begot sahabu-d-din, ampan, ija, kuntay, and ayung by a concubine; the last three are females. pakir mawlana mohammed amiru-d-din kamza begot the following: by dang, raja muda amiru-l-umara mohammed alimu-d-din kibad sahriyal; by dawung the daughter of dipatwan anwar, lidang and paywa; by dawa-dawa, kuda, and lalanu; by bay linaw, burhanu-d-din; by sapar, basing and hajar; by kanul, paku; by sinayan, mohammed sahru-d-din, asim, and tawung; by dalikayin, jamalu-d-din, gindu, amina, and ampay; by talangami, jamalya, ami, zamzam, and ismayil; by muna, sara, yasin, malinug, and abdu-l-lah; by mida, idu, and sad; by untay, isra-il, angkaya, and tambi; by palambi, ndaw; by jalya, dudawa; by anggun, payak; by kalima, badaru-d-din; by janim, maryam; by limbay, isa; by linuyaman, sinal; by milagandi, bilangkul. sultan mohammed pakaru-d-din bulagas armansa married badwi and begot kartaw, atik, anday, and pindaw, the last three being females. he also married a concubine and begot zaman, sumannap, bayna, and nanaw, the last two being females. datu sakaludan lingkung tidulay begot kaka-it. datu sakaludan lagat begot parasab, ampan, manunggul, dading umar, dubwa, ta-ib, nanun, mayay, and gayang. nanun married datu-a-wata maputi and bore tamayug, dawa-dawa, and idayu. mayay married raja bwayan manuk and bore maman, tapudi, kudaw, and ampay. putri married datu maytum bwisan and bore dubwa. tamaying married bungu and begot gangga. he also married mangilay and begot answay and anig. he again married a concubine and begot parasab and tuli. baya-labi sari married mawlana kudanding purang sabilu-l-lah and bore maman, abu bakar, kuntay, mindarakma, and mimya. kibad sahriyal married ninig, the daughter of datu sakaludan gantar, and begot yusup and fatima; by watababay apayak he begot anwar and sul-karnayn; by angki, palti; by kindaw, badaru-d-din and mayug; by jami, nasaru-d-din; by lina, imran; by julya, dingan and ibrahim; by istipanya, abidin. babay basing married watamama sahabu-d-din and bore barahaman, kuda, manamir, fatima zuhra, sari, and mindarakma. púyuwa married raja bwayan malang and bore sajar. burhan married kudi and begot jamalu-d-din and ila. mohammed sahru-d-din married mulak and begot dumalúndung. paku married sultan ajipat and bore kuning. sinal married mundug and bore daru-d-din. jamalya married sayduna and bore mohammed idris and tuli. to gantar, the son of jiwana kunik, she bore samal and ninig. jamalu-d-din married gayang, the daughter datu sakaludan lagat, and begot amina and dawung. zamzam married dindyaw, the child of sayka datu, and bore paramata. buli married mupalal, the son of namli, and bore harmansa. badaru-d-din married putri, the daughter of namli, and begot jalalu-d-din. sari married amil and bore ibrahim and sitti. nasaru-d-din married ayu and begot kamid. kartaw married paramata, the daughter of watamama gulay, and begot putri lidang, ani, jumjuma, and gindulungan; by jayba he begot jaya; by jamila, ndaw and nangka; by uyam, dadawa and naw; by alima, nunay. pindaw married lintang and begot milug. ndima married hajji kari abdu-r-rakman and bore mohammed, taha, banun, and panubawun. completed on the day thursday of the month shaban. god's knowledge is superior. manuscript no. vii the genealogy of bagumbayan introduction the sultanate of bagumbayan occupies the middle ground between the saylud or lower rio grande valley and the saraya or upper rio grande valley. it is located at the head of the delta, and really comprises the upper part of the saylud, and lies mainly along the banks of the southern branch of the rio grande. it extends as far down the banks of the southern rio grande as the upper borders of tamontaka, and as far down as libungan, along the banks of the northern branch of the rio grande. its upper limit is maysawa, a little above the kakar or canal. the present sultan, abu-bakar, lives at bagumbayan proper, which is located on the right bank of the southern rio grande about miles below tambao or the fork. he is still addressed, at times, as the sultan of talakuku, which was the proper address of his father, named after the older name of the capital. the word bagumbayan means "newly built," and has lately been applied to the sultanate on account of the late change of the residence of the sultan. talakuku is the word that appears in all spanish records and histories. kabuntalan is still older and is more used by the moros themselves. the old site of kabuntalan was on the left bank of the main river just above the fork. it has been completely abandoned. nagtangan is the oldest name and the one which appears first in this manuscript. this manuscript is copied from the original, which is in the possession of the sultan himself. it was obtained through the favor of datu balabadan, who is a relative of the sultan and who belongs to the same family or an allied branch of the same. the original is a very old copy and many of the leaves and margins are torn and have fallen into pieces. the handwriting is fair and plain, but the composition and grammar are very poor. the orthographical errors committed in writing moro names in arabic characters are very numerous and greatly change the expression of the words. it is evident that the original author was a poor writer, and did not have the usual practical knowledge in writing in arabic characters that other moro authors had. the dialect is strictly that of magindanao. the titles of the datus are similar to those used in magindanao. two new titles, jukulanu and jiwana, appear often, and in all probability are applied to subdatus of the same rank as gugu, umar maya, maraja layla, etc. literal translation of manuscript no. vii genealogy of kabuntalan in the name of god the compassionate and merciful this book speaks of the ancestors of the datus of nagtangan. daman asked for a datu from bwayan and got dikaya. dikaya married a nagtangan wife and begot duka. duka married lantyan, a malitigaw woman, and begot myadung. he also married a woman called ambun and begot babak and naw and suman. babak married umar maya, tubu-tubu, and bore saripada kunyaw, sultan digra alam, and pataw. umar maya married also andawmada, a tawlan lady, and begot bagamba, sarabanun, and bay. by a concubine he begot jukulanu diwa and bal, and the daughters buli and gaw and bahar. saripada kunyaw married anik and begot sultan mohammed alimu-d-din, who had no offspring, mawlana mundug, and datu sakaludan dudin. he also married andawmada, an ipuktn lady, and begot baya-wata. by a concubine he begot jiwana jambang, and the following daughters: kumkuma, ayag, payak, talilah, and minding. sultan digra alam married nya, a magindanao woman, and begot raja muda mangindra and mohammed; by bay he begot baya-labi; by a talayan woman he begot baya-wata lilang. bagamba married raja bwayan and bore sultan darimbang. sarabanun begot kamad, ubuk, and dumpiras. jukulanu diwa begot marajal, baya nayug, jukulanu kunuk, jukulanu badal, and undung, and the daughters atik, ilug, nawila. bal begot ginda, abas, duwi, and dangkay, and a daughter, buli. buli married mupat salam and bore banun. she also married aspa and bore jiwana kunik. mawlana mundug begot wata-mama kamad and ngyan. by a concubine he begot dula, dastara, jaynal, and alam, and the daughters dadaw and sambasing. by lamidas he begot kadija; by a concubine, daldal; by saban, aminu-l-lah. datu sakaludan dudin married amina, the daughter of jukulanu diwa, and begot danding, madaga, kudanding, patima, gindulungan, and anat. by a concubine he begot ganwi and kunan. baya-wata married timbang sulug and begot wata-mama damda. jiwana jimbang begot asab and pata. raja muda mangindra married mayung, a binilwan lady, and begot anig, umun, daywa, and dawada; and the sons, sultan mohammed-sa-barahaman, kunday, pataw, janipan, and dindyaw. by a concubine he begot lubaba; by baya-labi, ingkung. baya-wata married aman and begot inuk, uku, and anti, and the daughter wata-babay didu. gugu kiram begot anti, nanun, lintang, didu, ngulu, and banun. maraja layla dikaya begot maraja layla kandug, kunan, maraja layla amad, and papung. sultan mohammed darimbang begot raja bwayan paki, damda, and pidtaylan. by a concubine he begot kakayt. kamad married anig and begot bulawan, inuk, and dagayug. by a concubine he begot mama-sa-ilud, and kuntay. ubuk begot daga, mama-santi, bulug, and tawp. dupiras begot lyaw and dabu by a concubine. jukulanu kunuk married dawada, the daughter of raja muda mangindra, and begot tamay and diyug. jukulanu badal married mayakay and begot panggu. he also married ginu, the daughter of wata-mama kamad, and begot ungji, ulanulan, indalan, udamag, kadidung, aslan, aminalla, duwag, nyugaw, and tiban. udung married ninaw and begot mamag, tuli, lilang, lastam, aning, and alungan. by baybay he begot namar; by lumba, indig and dandung. nawila married lugung, the son of jalaludin tambi, and bore putri and kirig. ginda begot malaga. abas married ngyan, the daughter of mawlana mundug, and begot atshar and pinayu; and nanaw by a concubine. wata-mama kamad begot ginu. dulay begot bandun, jawala, buli, and dyaw. by payaka he begot kubung and paygwan. dastara's children lived in kuran. alam married gindulungan and begot malatunul. gindulungan married mawg, the son of the sultan of tuba, and bore qudrat. ngyan married abas and begot atshar and pinayu. dadaw married badang and begot jambrang, a twan (sir) of lawgan. kadija married atun, datu of burungan; her children lived at burungan. daldal married kayag and begot saripa and nyaw. talilah begot sabu-din. sabu-din begot abu bakar, mindung, kawan, itug, and pimbar. nanaw married tamama and begot kalumpunit. datu sakaludan married lady tidung and begot tima and randu. he also married yungayu and begot andam and basing. barayim married anu, the daughter of maraga, and begot rapruk. raja bwayan mohammed alimu-din married ani, a lady of magindanao, the grandmother of mupat idayat, and begot kabayan. by mayay, a lady of kabalukan, he begot the sultan of magindanao; by a concubine, gugu jamburang; by salaya, gugu panasang; by dadayu, nugal and gansing; by pandarágan, gaga; by sitti, itug; by kasimna, atung and panunggu; by takdung, basing; by inam, atabwan; by inding, apun; by amil, nangalung. alimu-din, the grandson of baya-labi sari, married maraga, the daughter of ginda, and begot tuka and dubwang. kudanding married kindang and begot ayung. by tima, a lady of tidung, he begot putri; by ija, limulang and sina; by nayung, gandang and kutay; by nawg, babayasi. datu tamay and diyug were cousins. kibad was their second cousin. tagi was a brother, the son of maryam. qudrat was another cousin. anatan, datu of kabuntalan, was their uncle. madaga married sultan mohammed-sa-barahaman and bore mayug and sultan iskandar manamir, which makes three datus of kabuntalan. anatan, datu of kabuntalan, married jawya and begot didu, untung, and padidu. by malali, he begot pawag and kirig and dyaw and parug; by sitti, umbag; by madidu, anaw and baralaga. wata-mama balindung adamunda married ani and begot asim, iday, kalug, kuntay, nanun, and tayting. by a woman of kadingilan he begot bantilan. asab begot putri. pata married jiwana aryung and begot kibad, kanapya, sarapudin, and ilm. daywa married datu palug of binirwan and bore kunik, banun, and iyaw. dindyaw married maraja layla kandug and bore talawung and dastara. mawlana mawg married iday, the daughter of balindung, and begot maning, ampal, lilang, anti, bagwa datu, and tapudi. kawan married timbay and begot paydu, dandayung, and iday. panggu married talung, the daughter of maraja layla kandug, and begot ulanan, tubu-tubu, and a daughter, tya. he also married kubra and begot ula. tamay married antam and begot limulang and makabwat. diyug married tuli, the daughter of undung, and begot paki, dada, tingaw pulwa, myayu, malug, and tinabun. mamag married didung and begot babay, mama, diruyudun, and manángka. anti, the son of gugu kiram, begot muyuka, pinagunay, kunaw, pindaw, and bungayu. nglu married tababay and begot nawila and amil. lintang begot bantugun. brayim married anu and begot ----. raja married dabu and begot kirig and pakamaman. ingkung married dubung and begot arimaw, kalug, saribu, padaw, dukin, and a daughter, mayla. by a concubine he begot pinu, bilalang, and talawd. maraja layla akad married miyayu and begot inal, idu, and atshar. sultan mohammed iskandar manamir married sarip, the daughter of the sultan of magindanao, and begot iskandar sulkarnayn and sahabu-d-din. by gayang he begot idris; by kati, mamunu-r-rashid, kindang, and puyuwa; by apsa, kadija. the grandfather of baya-labi sarip, by her father, was raja bwayan. her grandfather, by her mother, was sultan diruyudun of bagu ingud. tagi married manjanay and begot lintang and paramata. by putri, the daughter of kudanding, he begot pindaw; by apsa, an ilanun, dubuwa, tuku, pakir, and pandita; by bayid, mama-sa-ingud; by dabu, bwisan; also kúmkuma. idris married minda, the grandmother of umar-maya anti, and begot sindad. by another woman he begot kunik. sultan mohammed-sa-barahaman begot also kamsa. kamsa begot itaw, jimbah, antil, limpul, and mandi. dipatwan minug married madaga and begot tandwal, pipikan, pamupun, diluyudun, and talambungan. kunik married pinduk and begot ninig, marajal, and kumipang. by kumala he begot bunti and muyuk; by paydu, atik. namal married tima and begot tantung, sawad, and mohammed. bulawan married rajalam and begot bula, anggris, and pindug. raja muda asim begot pintay and ubab. kalug begot talulad and mayay, and katampara and talama, the last two from kurma. kintay married balug and begot dalmatan, muntya, talib, and alungan. ganwi married itug and begot gayug. he also married basing and begot anday, atshar, luping, and utung. qudrat married idayu, the daughter of the sultan of balilah, and begot bwisan, dundang, and nuni. by lilang he begot asibi; by tapaya migayad; and by agak, mohammed. rastam married dawag and begot tawp, ampan, igay, and payluyan. he also married uman and begot saligan, gambil, and timbaw. kibad married ninig and begot pinduma and dulan. bantugan married lagay and begot ayug and gambis. he married also tubu and begot dawa, dulan, and balalagay. by abu, he begot bwanda. andam married pudin and bangkas, mayung, mama-sa-ingud, gandi, and gimbang. aminula married basing and begot raginut, angjum, and anu. pawag married tapudi and begot talila, maytum, mantya, and sandag. kirig married baliwan and begot nanwi. sapula begot mindal, awa, ijang, ruging, and nyaw. datu sa-dalikan married dagayug and begot payak, who lived in the care of a manobo of dalikan--not the one who was intrusted to the care of sultan mohammed iskandar manamir of kabuntalan by a tiruray of dalikan. this latter woman was the daughter of the former and was not an inheritance for the nagtanganun because the datu did not furnish her with a dowry. angki married puwi and begot dangus and tapudi, the cousin of the sultan's mother. sultan diluyudun of bagu ingud married jumjuma, the daughter of dipatwan marajanun, and begot danding and mayung. by kabayan, a lady of kabalukan, he begot apan, bwat, and timbukung; by adung, panalaw; by paku, gasing and dgaw; by raja, muntya; by ampas, kambang; by angkung, salamat and gindu; by bitu, kapya, timu, and naypitan and pinamili; by idag, uyag, makalay, singag; by kalimah, umbul; by ibad, amad; by batata, dalding, the daughter of gandum, maguman; by anuk, kulaga; by ingi, paytakay, bungalus pimpingan, and idag. the sultan of magindanao married mayung, the daughter of the sultan of bagu ingud, sarip, and begot bangun, the sultan raja muda bayaw, bagu, and gidu. by atik, a lady of makatudugan, he begot laga and tandu; by wayda, talumpa and taganuk; by matundun, malatunul, sarabanun, and bisinti; by awig, gubal; by kudaw, isad; by myayug, atik, blaw, ngyan; by malayu, makaw; by kumbay, byalung. in the name of god the compassionate and merciful. the first datu of bwayan was budtul, who married a woman from magindanao and begot malang-sa-ingud and pulwa. putri mamur was married first to malang-sa-ingud, but after his death she married pulwa. pulwa married also budang of tijaman, and begot dikaya. the history of bagumbayan. the two greatest powers that figured prominently in the rio grande valley are the sultan of magindanao and the raja of bwayan. these rulers have at all times been considered as greater in power and higher in rank than any other ruler in the valley. in the latter part of the eighteenth century and during the main part of the nineteenth century the sultan of kabuntalan also figured prominently and held a very intimate relation and a close position to both of the other sultans, which position he still holds at the present time. it appears that the first ruler of kabuntalan was dikaya, the son of a raja bwayan, who simply held the honorary title of datu. his successor had no male heir, and one of his daughters, babak, married umar maya tubu-tubu of magindanao, who became ruler of kabuntalan and whose son was the first mentioned sultan there. this makes the line of descent of kabuntalan related by babak to the line of bwayan and by umar maya to that of magindanao. this relation to both magindanao and bwayan and the intermediate position kabuntalan holds to both saylud and saraya have been very prominent factors in the history-making events of the valley, and have successively been taken advantage of by both spanish and american authorities managing the affairs of the country. diagram no. gives in a very explicit and clear manner the names of the rulers of kabuntalan or bagumbayan, the order of their descent and succession, and the relation they hold to each other. their names in the order of precedence are as follows: . datu dikaya . datu duka . datu umar maya . sultan digra alam . sultan mohammed alimu-d-din . sultan sa-barahaman . sultan mohammed iskandar manamir . sultan iskandar sul-karnayn . sultan idris . sultan abu bakar the diagram shows also the principal relations of bagumbayan to bwayan and to magindanao. very little is known about the early history of kabuntalan. datu kali ibrahim, who is the chief judge of bagumbayan, told the following story: soon after the arrival of dikaya in kabuntalan the chief people of the village took their new datu in a boat on a little excursion. when they had gone some distance from the village they engaged in a sham fight and one party attacked the datu. this affair was prearranged and planned to test the courage and power of their datu. they made their attack with krises and bamboo lances. dikaya was frightened and ran away. the people lost respect for him and expelled him from the village. some time later he won their friendship by his good behavior and was reinstated as datu of kabuntalan. the statement on page that dikaya was the son of pulwa was taken from the bwayan tarsila and is added on account of the relation it bears to the subject. the part of the tarsila of bwayan which bears on this subject states that dikaya was the son of pulwa by a concubine, and that dikaya begot duka, who married rantyan, a malitigaw lady whose mother was agub. the children of duka and rantyan were bulus, manalidtu, puwi, and miyandung. as pulwa must have lived about the year , and as digra alam must have ruled about the year , the statement that duka married ambun and begot babak, the mother of digra alam, can not be accepted as true. some links in the list are evidently missing, but the fact is that the right to rule kabuntalan belonged to the descendants of duka, and was principally derived from bwayan. the first ruler of kabuntalan addressed as sultan was digra alam, the son of umar maya and babak. diagram no. shows plainly that digra alam must have ruled about the same time as sultan pakir mawlana kanza of mindanao, or his brother, pakaru-d-din, that is about the year a. d. . in a treaty between the spanish government and the sultan of kabuntalan in the year the sultan is addressed as sultan of tambao. he must be either sultan iskandar sul-karnayn or sultan idris, probably the latter. about midway between tambao and libungan on the left bank of the river is a small monument, possibly a tomb, erected in memory of those who died during the fight between the spaniards and sultan idris. in tambao and taviran or tapidan were occupied by the spaniards. in sultan idris submitted unconditionally to the spanish authorities and received their protection against datu utu. datu ayunan of taviran, datu balabadan's brother, aided the spanish authorities in the war against datu utu and was one of the most prominent datus of talakuku and magindanao. manuscript no. viii the ancestors of the datus of mindanao introduction this manuscript is a copy of the original in the possession of datu mastura. it was written by the same original author as manuscript no. ii and belongs to the same class and style of composition. it consists of nineteen paragraphs that give the names of the first rulers or datus of nineteen datuships of mindanao. a few malay words are used at the beginning of each paragraph. each paragraph begins as if it were written as a separate document or statement, distinct from all the rest, and in the same manner as their letters and books generally begin. the arabic words surat, riwayat, kissa, hadis, asal, meaning book, narrative, story, discourse, origin, respectively, are all used to signify book or history. the word tsharetra is malay and means a story. sarsila or salsila and tarsila mean genealogy or history and are used in the same sense. literal translation of manuscript no. viii in the name of god the compassionate and merciful . this book tells about the ruler of bwayan. the first ruler of bwayan was pulwa, the first raja bwayan. he begot raja sirungan, the second raja bwayan. pulwa married the daughter of sarip kabungsuwan. . this is a statement about the ruler of the country of mandanawi, the land of peace. the first datu of magindanao was mangalang or maka-alang, the son of sarip kabungsuwan, from angintabu. maka-alang was the second sarip; sarip kabungsuwan was the first. . this is the genealogy of the ruler of the country (or town) of ilanun. the first datu of malabang was gantar, the father of maka-apun and angintabu. . this story tells about the ruler of bakayawan. the first datus of bakayawan were mirugung and dimalawang. . this is the history of the ruler of bayabaw. the first datu of bayabaw was kalangit. his son was pundama, who married umpas. the end. . this is the history of the ruler of balabagan. the first datu of balabagan was dungkulang. his son rimba was sultan of balabagan. the end. . this is the history of the ruler of pidatan. the first datu of pidatan was dyam, sultan of pidatan. he begot punduma. punduma begot tawgung. . the first datu of lumbayanági was sultan gulambay. he begot ranu. . the first datu of dupilas was dindu, who was called datu sa-palaw. he begot dimalawang. . the first datu of sulug was sarip payang, who begot raja hasan, sultan of sulug. . the first datu of sangir was makalindi. makalindi married timbang saribu and begot manamil, sultan of sangir. . the first datu of malalis was ampwan, sultan of malalis. . the first datu of dulangan was alip, the son of abu, sultan of dulamgan. . the first datu of makadar was sultan limba, who also is a son of abu. . the first datu of didagun was abad. abad begot dumalundung, who was sultan of didagun. . the first datu of barira was dumak. dumak begot antagu, who was sultan of barira. . the first datu of sikun was amat. amat begot salumbay, datu of islnun. . the first datu of kadingilan was kapusan, the brother of salumbay, son of amat. . the first datu of magulalngun was balbal, who married maradi, the daughter of the sultan of tatarikun, and begot burwa. burwa became sultan of tatarikun. here ends the genealogy of all the countries or towns. the history of magindanao before the first mass was celebrated on the northern shore of mindanao mosques had been built on the fertile banks of the pulangi, and before legaspi landed on cebu kabungsuwan had been declared and acknowledged datu of magindanao. the mohammedan conqueror of mindanao was neither an admiral of a fleet nor a leader of an army of regular troops. he had no nation back of him to reënforce his battalions nor a royal treasury to support his enterprise. his expedition was not prompted by mere chivalry or the gallant adventures of discovery. he was not looking for a new route to rich lands nor searching for spices and gold dust. the emigrant sought a new land to live in, and trusted his fortune and success to the valor of his crew and the influence of his witchcraft. having a fair admixture of malay blood in him and sufficient arabian energy and enthusiasm to push on, he came and conquered and soon found himself at home in mindanao as well as at juhur. there was no racial prejudice to contend against and the language of the new land was akin to his own. but true to his religion, as he was true to his ancestry, his faith suffered no defeat. no submission was accepted without conversion, and no friendship was cultivated with the unfaithful. he married in the land of his conquest, and the ties of faith were soon strengthened by the ties of blood and kinship; and as the first generation passed and the second generation followed, the conqueror and the conquered became one in blood and sympathy, one in faith, and one in purpose. a new dynasty which stood for islam, for progress, and for civilization arose on the ruins of barbarism and heathenism. savage and fierce as the moros look, they are greatly superior to the surrounding pagans who inhabit the hills and the interior of mindanao. once their equals and kinsmen, they have vastly surpassed them now and are preëminently above them. with mohammedanism came art and knowledge, and communication with the outside world was established. for four centuries two different agencies of civilization have been at work in the philippine islands. one started in the north and worked its way south, continually progressing and constantly growing in power and improving in character. the other began in the south and extended north, but it soon reached a definite limit, and like a tree stunted in its growth it reverted to its wild nature and grew thorny and fruitless. the first graft of the tree of magindanao was not aided by later irrigation. the first wave of immigration was not reënforced, and with an ebb tide it lost most of its size and force. the moros of mindanao figured very prominently in the history of the philippines. they were never united under one flag, but they formed different sultanates, some of which attained considerable power and fame. in the fullness of his glory, the sultan of magindanao ruled over the whole southern coast of mindanao from point tugubum, east of mati, to zamboanga, and beyond this latter point to the outskirts of dapitan. all the pagan tribes living around the gulf of davao and in the sarangani country, and all the subanos west of tukurun and dapitan submitted to his power and paid him tribute. in the upper rio grande valley the power of the rajas of bwayan was felt and respected as far as the watershed of the cagayan valley on the north and the inaccessible slopes of mount apo on the east. the ranao moros controlled the whole country and the seacoast west of cagayan de misamis and north of the illana bay. the large majority of the moro sultanates are, however, small, and have never been fully numbered or described. they generally represent small divisions of territory and subdivisions of tribes, each under one chief who calls himself sultan or datu. nevertheless, tribal relations and language group these petty divisions into two large distinct groups, the magindanao and the iranun. the magindanao group includes the majority of the tribes. the iranun group is restricted to the tribes living along the eastern coast of the bay of illana from the point of polloc to the neighborhood of tukurun, and the whole ranao region lying between that line and the bay of iligan. the magindanao group is the greater of the two in number, in the extent of its territory, and in fame. indeed, all the moros of mindanao, except the iranun, were at one time under one influence and were brought under the sole control of the sultan of magindanao. the samal moros, who are variously classified by different writers and who are often mentioned as one of the main divisions of the moros of mindanao, are really foreign to mindanao and belong to a distinct and separate group. until recently they had never been independent, but had lived under the protection of various datus, and always served the datu for the protection he afforded them, or paid him tribute. they were sea rovers and had no claim on territory anywhere. lately they have settled down on the island of basilan, the sulu archipelago, and around the zamboanga peninsula. the samals were the latest of the malay people to arrive in the philippine islands. in fact, they are the only malay people of whom we have positive historical statement of emigration from the malay peninsula to sulu and mindanao, and were in all probability mohammedans prior to their arrival in the philippine islands. with the magindanao and iranun peoples it is different. they were in the land and belonged to the native element of the country long before their conversion to islam. islam was successfully introduced and firmly established in mindanao by one man. this same man founded the sultanate of magindanao and reformed the whole system of government among his converts. his full name was sharif mohammed kabungsuwan, generally known as sharif kabungsuwan. kabungsuwan was without doubt the greatest mohammedan adventurer who trod the soil of the island. but both the traditions of magindanao and its written records state that he was preceded by two pioneers, the first of whom was sharif awliya. awliya was universally regarded as a relative and a predecessor of kabungsuwan. his history is wrapped in myths. he is said to have come to mindanao in the air to search for paradise, or that part of it which remained in mindanao, and, while he was looking for it on the hill of tantawan (cotabato), to have found a houri who was sent to him from heaven. he married this houri and she bore a daughter called paramisuli. later the sharif returned to the west, but his wife and daughter remained in magindanao. the second arrival in magindanao was sharif maraja, who married paramisuli and was thought to have begotten tabunaway and mamalu, who were the chiefs of magindanao when kabungsuwan arrived in the land. sharif maraja is said to have had a brother called sharif hasan, who accompanied him as far as basilan, but who stopped there and founded the sultanate of sulu. whether bidayan, the son of sharif hasan, who is mentioned in the fourth tarsila, should be bidin, the abbreviated form of zainul-abidin, who was the first sultan of sulu, it is not easy to say. no copy of the sulu genealogy has been obtained as yet, and no authoritative statement can be made. but it is universally believed that the first sultan of sulu came from basilan, and that the ancestors of the sultans of bruney, sulu, and magindanao were brothers. sharif kabungsuwan was the son of sharif ali zainul abidin, a descendant of the prophet mohammed who emigrated from hadramut, southern arabia, to juhur, malay peninsula. the sultan of juhur, was evidently a mohammedan then, and was called iskandar thul-karnayn, the arabic appellation of alexander the great. the word "sharif" is arabic and means "noble." it is a title which is universally given to the descendants of the prophet mohammed. the full title is "sayid sharif," the "master and noble." the arabians generally use the first word, sayid, alone, but the moros have adopted the second. being highly respected on account of his ancestry, zainul-abidin was given the hand of the sultan's daughter in marriage. her name was jusul asiqin, a corrupted form of the arabic name "jawzul-'ashiqin." it is generally believed that she bore three children, the youngest of whom was called kabungsuwan. the word "kabungsuwan" is malay and means "the youngest." the names of the two older brothers of kabungsuwan were variously given. they were not mentioned in the tarsila and have been obtained from mere traditions. one authority gave them as ahmad and alawi, the other as mohammed and ahmad. both authorities agreed on the fact that the oldest founded the sultanate of bruney, and the second the sultanate of sulu. kabungsuwan probably knew some arabic, but he necessarily spoke and used the malay language, his mother's tongue. the incidents connected with his departure from juhur are of considerable historical interest. no dates have been obtained relative to this departure. the early moros never dated their events or documents. their narratives were very brief and crude. when they dated their events or wars they used a cycle of eight years, and designated its years by the letters a, h, j, z, d', b, w, d''. whenever one cycle ended they began another without any relation or reference to the corresponding mohammedan year. the earliest date that has been obtained which has immediate bearing on mindanao history is that bwisan, the father of the corralat of combés, was living in ; the next date was that of corralat's defeat by general corcuera in . bwisan had two older brothers, and he was probably preceded in the sultanate by both of them. his father, bangkaya, was the son of makaalang, the son of kabungsuwan. it will therefore be within safe limits to say that kabungsuwan's departure from juhur or his arrival in mindanao occurred about the end of the fifteenth or the beginning of the sixteenth century. captain forest, who visited magindanao in , placed that event roughly at a. d. , which is near enough to assume as correct. tarsila no. ii states that there departed with sharif kabungsuwan from juhur many people who were dispersed by the storm and ultimately found their way to different ports. the places to which they went were balimbang, bangjar, kuran, tampasuk, bruney, sandakan, sulu, malabang, tubuk, and mindanao. there is no doubt that this statement refers to an emigration from juhur east as far as mindanao, and that with this emigration came kabungsuwan. the samal people generally believe that they came from juhur and its neighborhood. the traditions of magindanao distinctly state that the people who came with kabungsuwan were samals. the samals or bajaws are the sea nomads of the malay archipelago and their emigrations are frequent. the samals of the sulu archipelago are ruled by the sulu datus and are generally very submissive. they are allowed to live on sulu soil, but they have never made themselves independent anywhere. indeed, all the evidence that can be obtained seems to point distinctly to the fact that they are of late arrival and do not belong to the older peoples of the philippine islands. the early magindanao records give the impression that the arrival of kabungsuwan and the conversion of the people of magindanao to islam were accomplished peaceably. the word samal is never mentioned and the samals are always considered as aliens in every respect. the samals seem never to have settled in magindanao itself, but they did settle for some time on the island of bongo or bungud, that lies opposite the mouth of the pulangi, and at batwan and banago, near malabang. from these places they moved later to sibugay and sarangani and the gulf of davao. combés called the samals lutaw and said that they were in the employ of corralat, and manned some of his boats, fighting and carrying on piracy side by side with the people of magindanao and with the iranun. summing up the preceding evidence, we can unhesitatingly say that the samals came to magindanao with kabungsuwan, but that they did not settle on the soil of magindanao, nor did they intermarry sufficiently to assimilate with the magindanao people. the character of the conquest kabungsuwan achieved and the bearing it has on the admixture of races in mindanao is therefore of special interest. when kabungsuwan arrived at the mouth of the pulangi there were on the neighboring soil of magindanao the following settlements: slangan, magindanao proper, lusud, matampay, tagiman, and katitwan. the first and the last were probably the greatest and the strongest of all, for they were the first to meet kabungsuwan and interrupted his advance at tinundan. after some fighting they were evidently defeated and retreated up the river. the people of magindanao, under the leadership of the brothers tabunaway and mamalu, came next, but their attitude was not hostile. for some reason they secured an alliance or agreement with kabungsuwan and invited him to magindanao. they submitted to a form of mohammedan baptism and to circumcision, and towed kabungsuwan's boat from that place up to magindanao. hence the meaning of the word tinundan, the place of towing. the ceremony for circumcision occurred at katuri, the little settlement on the river just opposite cotabato; the baptism or washing occurred at paygwan at the mouth of the river. the word katuri means circumcision. the dumatus urge that tabunaway and mamalu had been mohammedans previous to that incident and that they had some intimate relation to kabungsuwan. this is possible, but it is very difficult to understand how such a submission could have been enforced or obtained had kabungsuwan been a mere relative and guest whom they had never seen before. the people of magindanao proper were, even in the best days of the sultanate, far outnumbered by the people of slangan. yet, soon after his arrival in magindanao, kabungsuwan went on conquering and converting to islam all the surrounding tribes and chiefs, and succeeded. this seems impossible of achievement unless kabungsuwan had some force with him which commanded the fear and respect of the natives, and which, with the aid of magindanao, was able to carry his arms to victory over all the neighboring native chiefs and tribes of the land. this force was in all probability made up of the samals who accompanied him from juhur and who remained in his service and in the neighboring seas for a certain period of time. but having married in mindanao, the succession to kabungsuwan's sultanate naturally reverted to the native element, and the samals were gradually alienated and their sympathy with their master grew steadily weaker. not being agricultural in their habits and preferring the sea, they gradually withdrew from magindanao. the natives proved superior to the samals and, though converted to islam, they preserved, to a great extent, their own identity and their language. knowing how insignificant the former chiefs and their settlements had been, it is not difficult for us to conceive how kabungsuwan, with a small foreign force but with superior talent and with superior arms, could so easily accomplish the conquest of magindanao. it is commonly believed that the natives who fought kabungsuwan had no swords and depended chiefly on their wooden arrows as implements of war, and that the mohammedans who attacked the natives fought with swords and gained an easy victory. possibly they used gunpowder, too. the inhabitants of slangan, magindanao, katitwan, and those of all the other settlements of the valley were pagans and were very similar to the present tirurays in language and worship. those who adopted the new religion remained in the rich lowlands of the valley, but those who refused fled to the mountains and have stayed away ever since. those who wavered in accepting the new terms of submission and who were later suffered to stay in the neighboring hills were called tiruray. those who refused to submit, fled to more distant places, and kept up their enmity and opposition were called manobos. the pagans who are thus spoken of as related to the moros of mindanao in origin, besides the above, are the bilans, the tagabilis, and the subanos. every settlement of these former pagan tribes had its chief. the chief was called timway. tabunaway was the last timway of magindanao. manumbali was the last timway of slangan. the tirurays and the manobos still call their chief timway. the ruler of the mohammedan dynasty assumed the title of datu. the noun datu means king or ruler; the verb datu means to rule. kabungsuwan retained the title sharif. his son maka-alang also is always referred to as sharif. later the term datu prevailed, and the first datu who is mentioned in the tarsila as sultan was sultan qudrat, whom combés called corralat. soon after kabungsuwan had established his power in magindanao he received the submission of many chiefs, all of whom he converted to islam. later he advanced up the valley to bwayan and along the coast to malabang. some believe that he went to the ranao country, but it is difficult to support all the statements made. his descendants and his converts carried on the war and the conversion, so that before the spaniards reached their country their conquest and conversion had reached the present limits. the story of putri tunina and her marriage to kabungsuwan is universally known to the moros of mindanao. the custom of burying the dead next to the house, as practiced by tabunaway, is still common everywhere, and trees are often planted around the tomb. by sarabanun, the sister of tabunaway, kabungsuwan begot no children. by putri tunina he begot three daughters, one of whom, putri mamur, married the first moslem datu of bwayan, malang-sa-ingud. at malabang kabungsuwan married angintabu, the daughter of the chief of that place, and begot sharif maka-alang, who succeeded him. the people of magindanao who aided kabungsuwan in his wars secured from him certain privileges and favors over their neighbors. these privileges are still claimed by the dumatus, the present descendants of tabunaway. they have not paid tribute to the datus and have often intermarried with the datu class. it was different with the people of slangan. the descendants of manumbali and his subjects all became subjects and servants to the datus. their descendants are, however, still known and live in lugaylugay, about mile below cotabato, and on the same side of the pulangi. little is known about sharif maka-alang. he in all probability ruled in magindanao, not in malabang. his wife was a bilan woman related to parasab, a bilan chief. bangkaya succeeded maka-alang and married three wives, daughters of the principal chiefs of slangan, magindanao, and matampay, by each one of whom he begot a son. his sons were dimasangkay, gugu sarikula, and kapitan lawut bwisan, all of whom become datus and succeeded to the rule of magindanao in order. sarikula married a sulu princess called raja putri, who was supposed to be the noblest lady of her day in magindanao and who probably was the daughter of the sultan of sulu. the word putri is equivalent to "princess," and raja putri means "royal princess." kapitan means "holder" or "leader." lawut is a malay word meaning "sea." bwis means "tax." kapitan lawut bwisan distinguished himself more than his predecessors and was the most powerful enemy spain encountered in the south in her first effort to reduce the moro land. in , in company with silungan, the raja of bwayan, he checked the invasion of marquis rodriguez and defeated him at tampakan. bwisan was succeeded by his son, sultan dipatwan qudrat, the corralat of combés. the word dipatwan is malay in origin and means "master" or "sir." the word qudrat is arabic and means "power." the letters d and r and r and l are interchangeable in moro, and the word qudrat is commonly pronounced kudlat or kurlat; hence the corrupted form "corralat." sultan qudrat overshadowed his father, bwisan, and ruled with a strong hand. he was probably the strongest and greatest mindanao sultan that ever lived. he fought the spaniards bitterly and held their sovereignty in check for many years. his pirates terrorized luzon and the visayas and controlled the southern seas for a long time. in general corcuera led an expedition against him and after considerable difficulty reduced his fort and defeated his forces. qudrat appears to have had a large number of firearms, and his fort was very strongly fortified. the spaniards captured bronze cannons, lantaka or culverins, and muskets. in his relations with spain had undergone a distinct change. he had become more powerful, but he was desirous of peace and made a treaty with the spanish government. this treaty was in the nature of an alliance for mutual aid and protection. it secured better commercial facilities and gave the jesuits the privilege of building a church in the sultan's capital. thirteen years later hostilities were renewed and another campaign was directed against simway. this time qudrat succeeded in blocking the river at different places and successfully checked the invasion. qudrat was followed by his son, dundang tidulay, of whom very little is known. sultan dundang tidulay begot sultan mohammed sa-barahaman and sultan mohammed kaharu-d-din kuda. barahaman ruled peacefully and begot several children, two of whom, japar sadik manamir and dipatwan anwar, became sultans. after the death of sultan barahaman his son manamir was declared sultan. as manamir was very young, his succession was considered illegal and an act of enmity directed against his uncle, kuda. kuda therefore "usurped the government and went to simway, carrying with him the effects of the deceased sultan." civil war ensued and the peace of the state was greatly disturbed. this war must have lasted more than thirty years, and its story is variously related by the moros. the tarsila do not mention it at all. the best description was given by captain forest, who learned its details from the mouth of pakir mawlana, the chief person who conducted the campaign and terminated the struggle. kuda invited a party of sulus living in magindanao to simway to support him against his nephew. the sulus came, but finding him with only a small force, they treacherously murdered him and plundered his camp and possessed themselves of many pieces of heavy cannon, which kuda had transported from magindanao to simway. "the sulus returned home with their booty, and manamir's party got the ascendency." but the sulus, conscious of their iniquity and fearful of resentment when peace should be restored, fomented trouble between manamir and his brother anwar, and supported the latter. the state was again divided against itself, and the second struggle proved worse than the first. skirmishes were kept up and nightly attacks and assassinations were continued until both sides were very much weakened. their enmity grew bitter and malinug, the son of anwar, killed his uncle manamir. manamir was the rightful sultan, and on account of his assassination he has ever since been called sahid mupat, which means "died a martyr." pakir mawlana and pakaru-d-din, the sons of sahid mupat, were obliged to leave magindanao, and retired to tamontaka. "the country then suffered much. the great palace at the town was first plundered and then burned. in the conflagration many of the houses of magindanao were destroyed, as was also a great part of the town of slangan. the groves of cocoanut trees were also mostly destroyed, as being convenient and at hand to make palisades for temporary forts." in the meantime sultan anwar died at batwa and has ever since been referred to as mupat batwa, which means "died in batwa." malinug assumed the sultanate after his father's death and kept up the fight. "after a tedious, desultory war, malinug fled up the pulangi to bwayan. pakir mawlana then got possession of all the lands about magindanao, and peace was made soon after. malinug died a natural death, and some time later his two sons visited pakir mawlana." pakir mawlana was a man of low stature, smiling countenance, and communicative disposition. he acquired a great reputation for wisdom and bravery during the civil war, which he brought to a happy conclusion. he spoke malay and wrote the best tarsila of magindanao. magindanao flourished in his day and regained its former glory and prosperity. his pirates invaded the celebes and had several encounters with dutch and english vessels, often with success. his relations with spain were friendly, but spain had very little influence outside of the zamboanga colony. the greater part of magindanao was in his days built on the point and the adjacent narrow strip of land which lies at the junction of the matampay and the pulangi and between them. a longitudinal raised street began at the point and extended for half a mile to a canal which was cut from river to river. more than houses were situated on both sides of this street. the other part of the town of magindanao did not exceed houses. the town of slangan was really continuous with magindanao and extended for about half a mile down the river, forming one continuous street. slangan was the larger town and had over houses. both towns had large numbers of mechanics, vessel builders, and merchants. many chinese carpenters, arrack distillers, and millers lived in both towns, but chiefly in slangan. gardens and rice fields surrounded the town. the chief datus at that time had forts and kept small bodies of troops as bodyguards and artillery corps to take care of the muskets and guns. kibad sahriyal, son of the sultan, had the best and strongest fort at that time. this fort was called kuta intang (diamond fort) and was located at the extreme point of the land and commanded the river and the town. the fort had five pieces of cannon, and pounders, and a large number of swivels and lantaka. the magindanao warriors of those days wore armor coats and helmets and carried krises, spears, and shields. the natives made gunpowder and secured their saltpeter from a cave near taviran. they built vessels of all dimensions and cruised as far as java and the celebes. their vessels were always long for the breadth and very broad for their draft of water. in mawlana retired from office in favor of his brother, pakaru-d-din. pakar was a weaker man than his brother and practically had very little control over affairs, and always acted in important state questions with the advice and consent of kibad, his nephew. during his time the english tried to get bongo island and to establish a footing near the mouth of the pulangi. sultan pakaru-d-din was succeeded by kibad sahriyal, who possessed many of the good qualities of his father and ruled with firmness and success. in the meantime the power of spain in mindanao had revived and her forces became active again. kibad maintained friendly relations with spain and signed a treaty with her in , in which he promised not to enter into any treaty or agreement with another power. like his father he had many wives and concubines and begot many children, chief among whom are sultan kawasa and alamansa sul-karnayn. kawasa succeeded his father and maintained the dignity of his office and the prosperity of his sultanate. he is often called anwaru-d-din (lights of religion) and amiru-l-umara (the prince of the princes). he had many children, chief of whom was intirinu or amirul. alamansa died at dansalan. he had many children, two of whom were raja twa, and datu dakula, the prince of sibugay. raja twa begot untung and perti. the nation looked to raja twa to succeed sultan kawasa, but he died before his uncle, and the sultanate fell to his young son, untung. intirinu was rejected for family reasons and datu dakula was set aside to give representation to the favorite house of twa. untung was known as sultan sakandar qudratu-l-lah (alexander, the power of god). he was also surnamed jamalu-l-a'lam (a'zham), which means "greatest beauty." qudrat the second was the last sultan who observed all the customs and rites of the sultanate. he was young when he assumed power, and his reign marked the beginning of the downfall of the sultanate and the actual occupation by spain of the rio grande valley. in the treaty of he submitted to the sovereignty of spain and accepted the subordinate title of feudatory king of tamontaka. spain appointed his successor and prohibited his people from invading any territory west of point flechas. she regulated the licensing of boats sailing beyond zamboanga and erected a trading house at paygwan, at the mouth of the rio grande. in datu dakula ceded to spain the west coast of the zamboanga peninsula, promised to aid in suppressing slavery, and acknowledged spanish protection. in sultan qudrat confirmed the treaty of , with a more definite submission, and allowed the establishment of a spanish trading house at cotabato. this aggression on the part of spain was prompted by her increased strength and an additional naval revival. steamboats and improved firearms ended moro aggression and solved the moro question. in polloc was occupied and was made a naval station. in spanish boats advanced as far up as tambao and drew up a treaty with the sultan of talakuku in which he acknowledged his surrender and his submission to the authority of spain. in camps were established at cotabato, libungan, tambao, taviran, and tamontaka. sultan qudrat begot mamaku, ambuludtu, mastura, raja putri, and others. mamaku is the present raja muda of magindanao and lives at cran, sarangani. ambuludtu and mastura are living at nuling, about mile above cotabato. raja putri, generally known as the princesa, was datu utu's wife. sultan mohammed makakwa, the son of intirinu, succeeded qudrat. he was the last sultan of magindanao who lived in cotabato. the spaniards paid him a monthly salary of pesos, but kept him under complete control. in his days modern cotabato was built, and in it was made the capital of mindanao. an earthquake destroyed the town that year, and in it was abandoned as capital in favor of zamboanga. makakwa died about , and his son, pablu, became sultan. pablu's full title was sultan mohammed jalalu-d-din pablu. he lived at banubu, opposite cotabato, and was the last sultan who received a salary from the spanish government. in the spanish engaged the forces of idris, the sultan of talakuku, on the banks of the river at tambao and completely defeated him. idris then signed a treaty acknowledging unconditional surrender and submission. during pablu's life general terrero conducted the campaign of - against datu utu of bwayan, and the spanish gunboats destroyed every fort on the river. datu utu resisted the spanish invasion vigorously and repeatedly, but he was repeatedly defeated, and the moros of the rio grande felt convinced that the arms of spain were much superior to their own, and have submitted peacefully ever since. pablu's sultanate was nominal and powerless. in pablu died, and the seat of the sultanate remained vacant until about . pablu died without a male heir. mamaku, the raja muda of magindanao, did not meet the requirements of the sultanate, so the sultanate passed over to the house of datu dakula the first. the prince of sibugay had three sons, pagat, puyu or jamalu-l-kiram, and datu dakula the second. pugat, the eldest, begot mamuppun, the last prince of sibugay, and mangigin. datu dakula the second begot datu dakula the third, who lives at kumaladan, at the head of damanquilas bay. mamuppun was passed over by the council of the datus in favor of mangigin, the present sultan. mangigin is a weak man. after his succession he went to libungan and lived there during spanish rule. after the spanish evacuation and after the attack on cotabato by datus ali, jimbangan, and piang, which occurred in , he became fearful of the saraya datus and returned to peaceful sibugay, his birthplace and the land of his father. in her conquest of mindanao spain directed her forces against the district of sibugay first, and then against mindanao. the district of sibugay was in a state of complete submission before the rio grande moros were controlled. the subjection of sibugay advanced to such an extent that in the region was divided into three districts, to each one of which a datu was assigned by spanish authority. the datus received orders and directions from the governor of zamboanga direct, and an annual tax of one real was imposed upon every subano and moro male above the age of years. chapter ii laws of the moros general introduction the mohammedan conquerors of mindanao and sulu established a new form of government planned on lines similar to those of the arabian caliphate, and adopted written codes of law for guidance in the administration of the state. in all probability the art of writing was not known in mindanao and sulu prior to the mohammedan invasion. the author has no knowledge of the existence of any written law among the pagan tribes of mindanao, nor of any written material that antedates islam in mindanao or sulu. the moros are not savage, though they seem so at first sight. as early as the end of the fifteenth century they could read and write. mohammedanism encouraged education and invited learning. the arabic alphabet was applied to the mindanao tongue, and old arabic and malay books on religion and law were translated into the native magindanao and ranao dialects. the moros of magindanao have translations of the quran, hadeeth, some books on law, some commentaries on the quran, some magic, and other varied literature. their original writings in the magindanao tongue consist of many genealogies and stories. the sulu moros have done the same. they acted independently, but on the same general lines. the languages of mindanao and sulu are members of the general malayan family of languages, but they differ so much as to render intercourse impracticable without an interpreter. the moros are several tribes, and each tribe differs as much from the others as the visayan and the ilocano and the igorot tribes differ one from another. the laws of these tribes are different. they came from similar sources, but they were worked out and compiled separately and independently. the present chapter includes the best official codes of magindanao and sulu. the manuscripts themselves are undoubtedly authentic and complete. every care has been taken to render the translations as accurate and complete and useful as possible. the luwaran; or, the laws of magindanao introduction the term luwaran, which the mindanao moros apply to their code of law, means "selection" or "selected." the laws that are embodied in the luwaran are selections from old arabic law and were translated and compiled for the guidance and information of the mindanao datus, judges, and pandita who do not understand arabic. the mindanao copies of the luwaran give no dates at all, and nobody seems to know when this code was made. they say it was prepared by the mindanao judges some time ago, but none of those judges is known by name. datu mastura's copy of this code was written about , and it is undoubtedly copied from some older manuscript. the original manuscript [ ] accompanying this code is older still, but it bears no date at all. the arabic books quoted in the luwaran are minhaju-l-arifeen, taqreebu-l-intifa, fathu-l-qareeb, and miratu-t-tullab. the first of these, generally known as the minhaj, is the chief authority quoted. datu utu had an old copy of the minhaj that looked more than two hundred years old. the author of the minhaj must have lived in the ninth or tenth century. the compilation of the luwaran must have been made before the middle of the eighteenth century. each mindanao datu is assisted in the administration of justice by a judge and a vizier. the judge is called datu kali. the word kali is derived from the arabic word meaning "judge." the datu kali is the chief pandita of the district and is supposed to be the best-informed man of the community. the pandita is the scholar who can read and write and perform the functions of a priest. the vizier is called "wazir;" he is a pandita, too, and acts in a semijudicial and clerical capacity. mohammedan law being based on the teachings of the quran, the chief pandita of the district is naturally regarded as the most competent expounder of the law and the best-fitted person in the community to act as a judge. as the wazir is a pandita, he should be a well-informed and wise man. some datus are pandita themselves, and some take all matters into their own hands and delegate none of their offices or duties to a judge or a vizier; but this is the exception, not the rule. in making the luwaran the mindanao judges selected such laws as in their judgment suited the conditions and the requirements of order in mindanao. they used the arabic text as a basis, but constructed their articles in a concrete form, embodying genuine examples and incidents of common occurrence in mindanao. in some places they modified the sense of the arabic so much as to make it agree with the prevailing customs of their country. in a few instances they made new articles which do not exist in arabic but which conform to the national customs and common practices. the authority of the luwaran is universally accepted in mindanao and is held sacred next to that of the quran. the mindanao judge is at liberty to use either of them as his authority for the sentence to be rendered, but as a rule a quotation from the quran bearing on the subject is desirable. all datus and viziers and all persons acting in the capacity of a chief or a vizier find the luwaran very convenient and helpful. very few people can become kali, but all who are able to read can study and use the luwaran. consequently the luwaran has had general use, and copies of it are seen in all the districts that speak the magindanao dialect. to establish this fact copies of it were secured from the ruling datus of bagumbayan and of saraya or the upper valley. the copy [ ] secured from datu mastura is by far the most complete of all. the text is well written, neat, and distinct. the original arabic articles are written separately on the margin of the book and opposite the magindanao articles with which they were supposed to correspond. datu mastura is the best living descendant and representative of the house of mindanao, and he probably owns the most reliable books and documents that have been transmitted from the previous generations. this book is certainly the best specimen of magindanao literature; it is genuine, correct, and well written. on account of inability to secure the book itself, an accurate and exact copy of the same was taken. the magindanao articles are written separately and are numbered for convenience in reference. the translation is not exactly literal, but nearly so. the arabic marginal quotations are copied separately and are numbered in the order in which they appeared in the original copy. they are also translated, and a table indicating the arabic quotation which corresponds to each article of the luwaran is attached to the introduction to the translation. in actual practice the moros do not distinguish between custom and law. many of their customs are given the force of law, and many laws are set aside on account of contradiction to the prevailing customs of the day. slavery is such an established custom and institution of the land that it is generally sanctioned and supported in the luwaran. an oath on the quran is so firmly binding and the fear of perjury is so strong in the mind of the moro that oaths are generally taken and are always regarded as sufficient confirmation even in the absence of evidence. the moros are not strict nor just in the execution of the law. the laws relating to murder, adultery, and inheritance are seldom strictly complied with. indeed, the laws of inheritance as given in the luwaran are generally disregarded and are seldom considered at all. mohammedan law does not recognize classes, except the slave class. but moro law is not applied equally to all classes. great preference is shown the datu class, and little consideration is given to the children of concubines. the luwaran, nevertheless, is the recognized law of the land and compliance with it is a virtue. translation of the luwaran, the magindanao code of laws in the name of god the compassionate and merciful, praise be to god, who led us to the faith and religion of islam. may god's blessing be with our master mohammed and with all his people and followers. the following articles are taken from the minhaj and fathu-l-qareeb and taqreebu-l-intifa and mir-atu-t-tullab and have been translated from the arabic into the java (malay) dialect of mindanao, the land of peace: article i if two people disagree as to the ownership of a certain property, the actual possessor has the right to the property if he swears to that effect. in case both of them are in actual possession of the property, both ought to swear. if both of them swear to that effect, the property shall be divided between them equally. if only one person swears, the property shall be given to that person alone. article ii if a person borrows an article and loses it, he shall replace it or pay its value. the same rule shall apply in case the article is stolen. there shall also be paid a reasonable additional compensation for the lost article. article iii if a person borrows an ax or a button, and the ax is broken or the button lost while being used for the purpose for which it was loaned, and not on account of carelessness, the lost article shall not be replaced. but if the ax is used at a place overhanging the water or is used to cut a stock of bamboo without being well tied or fastened, and is lost, it shall then be replaced. article iv if two persons disagree as to whether or not a certain debt has been paid and have no witness to the fact, the plaintiff's claim shall be sustained in case he confirms it by an oath. in case he refuses to take an oath the defendant's claim shall be sustained. article v if a person intrusts another with his property and later calls for it and it is denied him on the plea that it has been taken back or that it was lost, and no witness can be obtained, the trustee's plea shall be sustained if he confirms it by oath. article vi if a person enters a claim to his lost property which has been found and kept by another person, and the finder refuses to deliver the property on the plea that it is his own property and that it has been in his possession for a long time, and there be a witness who testifies that the property is a find and not an old possession of the finder, the finder shall return the property found and pay a compensation of one cuspidor or two. article vii the seizer of another's property shall return the seized property and pay an additional amount proportional to the interest derived from the property. article viii if a person enters the house of another at night without the consent of the owner thereof, and the said owner complains of the offense, the defendant shall be fined four cuspidors. article ix if a man enters the house of another with the intention of holding private intercourse with a woman therein with whom it is unlawful for him to associate privately, and the woman objects, he shall be fined four cuspidors or four pesos, or shall suffer from twenty to thirty-nine lashes, or shall be slapped on his face, at the discretion of the judge. article x if a woman comes into the house of a man with the intention of marrying him and of living with him, and the man refuses to marry her and she is later taken away by her people, the man shall not be liable to fine or punishment. article xi section . if a man divorces his wife after the conclusion of the marriage act or ceremonies, and before any sexual intercourse has taken place, the woman shall have half of the dower only. if the divorce occurs after sexual intercourse has taken place, the woman shall have all the dower. sec. . if a man refuses to marry a woman after having been engaged to her, the whole dower shall be returned to him, excepting the expenses for the feast incurred by the father of the woman. article xii if a person curses or abuses another person without cause, he shall be fined not more than three cuspidors. article xiii section . if a person falsely claims another person as his slave, he shall be fined the value of one slave. sec. . if a person defames another person by calling him balbal (a human being who transforms at night into an evil spirit which devours dead people) or poisoner, he shall be fined one slave or the value of one slave. article xiv if both the giver and the receiver understand that a return gift shall be made for a certain given property and the receiver fails to make the gift, the giver can take back the gift. article xv no gift given without expectation of reward can be recovered after the receiver has had possession of it. but if the giver changes his mind before the receiver takes possession of the gift, the giver resumes his ownership of the given property. article xvi property the gift of parents to their child shall be recoverable if it has not been expended or destroyed. article xvii in the discretion of the judge and the datu, a thief of property amounting to the value of one malong or more shall have his hand cut off and shall return the stolen property. if the stolen property does not amount to the value of one malong, the thief shall suffer thirty-nine lashes or pay a fine of four cuspidors. article xviii if there is any doubt of the truth of evidence or the truthfulness of a witness, they shall be confirmed by oath. article xix testimony of a slave which is detrimental to himself shall be accepted. article xx testimony of children and of the insane or imbecile shall be held invalid. article xxi if a person enters a house without permission and in the absence of the owner, he shall be held responsible for and shall restore or pay for any article that may be found missing from said house. a person who enters the field of another shall likewise be held responsible for and shall restore or pay for any article that may be found missing from said field. article xxii if a person loans or sells to a slave without the knowledge or consent of the master of the slave, the person who loans or sells shall be guilty of a misdemeanor; and the master of the slave shall not be held responsible for the transaction of his slave. article xxiii if in the course of an agreement for the sale of property questions arise respecting the price or the amount of the sold property, and no witness can be obtained, the seller shall be sustained if he confirms his statement by oath; but the statement of the buyer shall be sustained if the seller fails to take oath. article xxiv if the seller and the buyer differ as to whether a certain defect in the purchased property developed prior to or later than the date of the purchase, the seller's statement shall be sustained if he confirms it by oath; otherwise the buyer's statement shall be sustained. article xxv if after the purchase of property the buyer discovers a defect in the property which existed prior to the sale or purchase, he may return the property to the seller and pay him a reasonable compensation proportional to the decrease occasioned in the value of the property through the detection of the defect; and the buyer shall then recover the purchase price of the property. article xxvi no purchased property shall be returnable to the seller on account of a defect therein which has developed after the sale. article xxvii if a person buys a slave and later discovers a defect in him and returns him to the seller, but the seller denies the slave's identity, the statement of the seller shall be sustained if he confirms it by oath; otherwise the statement of the buyer shall be sustained. similar cases pertaining to other kinds of property shall be judged similarly. article xxviii it shall be lawful to return promptly purchased property which is defective. the return shall not be delayed longer than prayer time or mealtime, or one night in event of the purchase having been made in the evening. article xxix if a creditor dies and his heirs sue his debtor, but the debtor denies the debt on the plea that the deceased creditor gave him as a gift, or in charity, or that he has paid for that for which he is sued, and there is no witness, the heir must swear. failure to swear on the part of the heir shall render the debtor free from payment of the debt. article xxx if a person buys property or a slave, and another person recognizes the slave or property as his own and lays claim thereto, and is able to produce a witness to that effect, the buyer shall return the purchased property or the slave to the seller, but shall recover whatever he has paid. article xxxi if a person finds his property in the possession of another, and is able to recover it without any injury or injustice, he shall be justified in so doing. but in the event of an objection being raised to the recovery or in case an injury or injustice is unavoidable in recovering the property, he shall present the matter to the datu and to the judge, after which it shall be justifiable for him to take his property even though it be necessary to break through a door or through walls to do so. under any circumstances he shall have the right to recover his property, or its equivalent in kind, or any other substitute not in excess of the value of the property. article xxxii if, while a person is spying on the house of another, the occupants throw a stone or other thing out of the house and thereby cause the death of the spy, no guilt shall be attached to their action. article xxxiii if the provisions or the fowls of a person are eaten by cats or cattle, and the owners thereof are notified by the injured person to secure their animal or animals, and the warning or notice is disregarded so that the provisions or fowls are eaten up, the owners of the cats or cattle shall be held responsible for the loss. article xxxiv section . if a person seduces or cohabits with a female slave, held by him as security for debt, with the knowledge or consent of the debtor, he shall not be held guilty; but he shall give her a dower. sec. . if the seduction or cohabitation occurs without the consent of the debtor, the creditor shall be liable to a fine, or shall give the woman a dower to be paid to the debtor. sec. . if the creditor begets a child of the slave held as security in the preceding section, he shall buy the child from the debtor; otherwise the child shall become the slave of the debtor. article xxxv if the creditor and the debtor differ as to the security or its amount, the debtor's statement shall be sustained if confirmed by oath; otherwise the statement of the creditor shall be sustained. article xxxvi if the security is lost and no blame is attached to the creditor, he shall not be held responsible for the loss, and the debtor shall not be relieved from his debt. article xxxvii if a principal and his agent differ, and the agent claims that he has acted in accordance with the orders of his principal, and the claim be denied by the principal, the statement of the latter shall be sustained if confirmed by oath. article xxxviii if a married woman commits adultery, both adulterer and adulteress shall suffer eighty lashes. if the lashes are changed or reduced to a fine, half the number of the woman's lashes shall be added to the man's fine. article xxxix if a person charges another with the payment of his debt, and the creditor sues the proxy for the unpaid debt, but the proxy claims to have paid the same, the creditor's statement shall be sustained if confirmed by oath. article xl if a man seduces a maiden, both shall suffer one hundred lashes, and the man shall marry the woman and live with her even though he is married. article xli the statement of the plaintiff shall be sustained if confirmed by a witness. if there is no witness, the defendant shall take an oath. article xlii if slaves commit adultery, both man and woman shall suffer fifty lashes. article xliii if a married man commits adultery with a free woman, both shall be stoned to death. the punishment of the man may be reduced to imprisonment. the woman shall be buried up to her chest and be stoned with medium-sized stones. article xliv if a free man seduces a maiden slave, the property of another person, and she becomes pregnant and dies during childbirth, the seducer shall then pay the value of the slave to her owner. article xlv if a bachelor or widower commits adultery and is killed by a non-mohammedan, the non-mohammedan shall be put to death. but a mohammedan who may kill such an adulterer shall not be put to death. article xlvi if a man recognizes his cattle or his trees in another's charge and notifies him of the fact, and has a witness to confirm his statement that the cattle or trees are his, he shall be entitled to the produce of the cattle or of the trees although they remain in the charge of the other. likewise, if a slave who has been lost is recognized by his master in the charge of another person, and the master of the slave notifies that person of the fact that the slave is his and has a witness to confirm his statement, he shall be entitled to whatever his slave may produce if he remains in the charge of the person aforesaid. article xlvii if a man rents a field of another with the intention of cultivating it, but later fails to do so and returns it to the owner thereof, he shall be liable for the rent and shall pay the same at harvest time, as though he had cultivated the land and reaped the produce. likewise, if a boat is hired, the hire thereof shall be paid to its owner, whether or not it has been used for the intended travel. article xlviii if a slave runs away and enters the house of a certain person, or if a person finds a runaway slave, the owner of which is known to him but to whom he fails to give notice of the fact, and the slave again runs away, he, the finder, shall be responsible for the slave to the owner thereof. article xlix if a married man leaves his home on a long journey and nothing is heard of him, his wife shall not have the right to marry another; but if she learns that he has died or that he has divorced her, she shall then wait four years, after which she shall observe the customary mourning for his death; then she may marry again. the judges shall be careful not to change this decree in order that their power and influence may not suffer. article l if a boat is in danger of sinking, it shall be right and proper to throw its cargo overboard. but if a man throws away property without the knowledge of the owner thereof, and the boat does not sink, he shall replace the property. if a person tells another to throw his property overboard, promising to replace it, and the property is thrown overboard but the boat does not sink, he shall replace the property; but where there has been no promise to replace the property he shall not be held liable. article li section . if a debtor dies, his debts shall be payable from his estate, his estate being regarded in the nature of a security. sec. . if a debtor dies and leaves no estate, his heirs shall not be liable for his debt. by heirs is here meant parents, children, brothers, sisters, grandchildren, or grandparents. sec. . if a debtor dies and leaves an estate to his heirs, the estate shall be expended in payment of his debts whether it is sufficient in amount or not. sec. . if the heirs divide their inheritance before they know of the existence of a claim for debt against the estate, they shall return their shares to pay the debt, whether the inheritance is sufficient or not; and if they have used their inheritance prior to the knowledge of the debt, they shall pay out of their own property an amount equal thereto in payment of the debt. article lii if a man orders another to shoot at a deer, believing that he is ordering him to shoot at a deer, and the person shoots believing also that he is shooting at a deer, but hits a man, neither the shooter nor the man who has ordered him to shoot shall be liable to punishment, but shall pay only a light fine as blood money. likewise, if a man orders another to shoot at a tree, believing that he is ordering him to shoot at a tree, and the person shoots, believing also that he is shooting at a tree, but hits a man, neither the shooter nor the man who has ordered him to shoot shall be liable to punishment, but shall pay only a light fine as blood money. article liii in case a person orders another person to climb up a tree and the climber falls from the tree, there shall be no liability to punishment, whether the person dies or not. a medium fine only shall be paid as blood money. article liv if a female slave in the possession of a certain person has a child which is recognized by another person as his own child and born of the slave during her stay in his possession, and the claim is denied by her present owner and there is a witness to the truth of the claim, the plaintiff shall confirm his testimony by oath. failure to confirm this testimony by oath and the lack of conclusive evidence that the child is a free child, begotten by the plaintiff of the slave, shall render the claim null. article lv if a man recognizes a slave whom he has liberated in the possession of another man who denies the claim, and there is a witness who bears out the claim of the plaintiff, the plaintiff shall confirm his statement by an oath, and, having taken an oath, may recover his slave and reliberate him. but his statement shall not be sustained if an oath is not taken. article lvi section . if two persons enter into partnership and later one of them asks the other to sell the property or stock and divide the proceeds, and the property is sold and its amount received, but the seller claims the whole amount as his, to which the other partner objects on the ground that it belongs to the partnership; or if the seller claims that it belongs to the partnership, and the other partner claims that it is his own, the statement of the person in possession of the property or its price shall be sustained if confirmed by oath; but otherwise it shall be rejected. sec. . if in the preceding case the seller divides the proceeds and gives his partner a part thereof and holds the remainder for himself, claiming that the amount of the proceeds has been divided, but the other partner refuses to accept the division on the ground that it has not occurred, the claim against the division by the complaining partner shall be sustained if confirmed by oath; otherwise it shall not be sustained. sec. . if one of the two partners in the preceding case buys and takes possession of the property of the partnership and then denies that it is the former property, claiming that it has been bought by some one else, to which the other partner objects as a false claim, the statement of the latter shall be sustained if confirmed by oath; otherwise the buyer's statement shall be sustained. article lvii section . if a free man kills another free man, or a free woman kills another free woman, or a slave kills another slave, the slayer shall be punished. sec. . if a free man kills a slave, the free man shall not be put to death. sec. . if a slave or other servant kills a free person, he shall be put to death. article lviii the blood money for the life of a woman or of a hermaphrodite shall be half that of a man; so also shall the fines for wounding a woman be rated as half those for wounding a man. article lix if a free man divorces his wife three times, or a slave divorces his wife twice, it shall not be lawful for him, the man, to marry again before the divorced woman is married to another person. article lx section . if the husband of a pregnant free woman dies, or a free woman is divorced, she shall mourn four months and ten days. sec. . if a slave woman is divorced, she shall mourn two months and five days. sec. . if a pregnant free woman is divorced, she shall mourn until childbirth. article lxi if a person throws the sweepings of a house or the parings of fruits on the road, and a person carrying certain articles and passing on the road steps on them and thereby slips and falls and loses his property, the person who threw the sweepings or the fruit parings on the road shall pay for the lost property. he shall also be responsible for any injury resulting from the fall. article lxii if a person gives an imbecile or an insane person or a child poison to eat, and said child, insane person, or imbecile dies as a result thereof, he shall be punished. article lxiii if a man gets drunk and fights or kills another, he shall be liable to punishment. article lxiv if a child or an imbecile or an insane person kills another person, he shall not be liable to punishment, but shall pay blood money. article lxv if a child under age is in a high place and is frightened by some person and as a result thereof falls and dies, the person who frightened him shall pay his blood money. article lxvi if a person who is shooting or hunting startles a child who happens to be in some high place, and the child falls and dies as a result thereof, he shall pay a small fine as blood money. article lxvii if a slave is wounded, the fine in compensation for his injury shall be the price of the slave in case of death, or an amount equal to the decrease in the value of the slave in case he does not die. article lxviii section . if a slave is guilty of cutting another, he shall be liable for the fine thereby incurred; if his master does not pay the fine, he may sell the guilty slave and pay the fine from the amount received therefor. sec. . if the master of the guilty slave refuses to sell him, he shall compensate for the decreased value of the slave who has been cut. article lxix section . if a plaintiff produces a witness, his statement shall be sustained. sec. . if a plaintiff has not a witness, the defendant shall take an oath; but if the defendant refuses to take an oath, the plaintiff shall swear and his statement shall be sustained. article lxx if the owner of a slave dies and his heirs claim the slave, and the slave objects on the ground that he had been liberated by his deceased master, the slave shall take an oath to that effect, which oath shall confirm his statement; but if an oath is not taken by the slave, the claim of the heirs shall be sustained. article lxxi all property loaned shall be paid back in kind, but if that be impracticable, the value thereof shall be accepted. article lxxii the will of a free person shall be legitimate whether he be a non-mohammedan or a person of bad character; but the will of an insane person or an imbecile or a child or a slave shall not be legitimate. article lxxiii if the legatee dies before the testator, the will shall be held invalid; but if the legatee dies after the death of the testator, the heirs of the legatee shall be entitled to his share under the will. article lxxiv if a person wills his estate to one of his heirs, the will shall be sustained if the other heirs consent to it; but if they do not consent, the will shall not be sustained. article lxxv if a person recognizes his property in the possession of another, which property he has neither sold nor given away as charity or otherwise, it shall be lawful for him to take or recover his property, unless he is afraid of being killed. in case he is afraid, he shall present the matter to the datu and then to the judge. article lxxvi the action of a guardian or agent shall be binding on the ward or the principal, respectively. the insane, imbeciles, or children shall never be guardians or agents. article lxxvii if two persons collide unintentionally and one person is injured, the liability of the guilty person for the fine or compensation thereby incurred shall extend to his heirs. the fine shall be small. article lxxviii if in the preceding case the collision is intentional, the liability shall be the same, but the fine shall be equal to half the limit. article lxxix if children or imbeciles or insane persons collide, the same law shall govern as in the case of sui juris persons. article lxxx section . a son, the only child, shall inherit all of the estate of his father and mother. sec. . a daughter, the only child, shall inherit half the estate of her father and mother. sec. . two or more sons, the only children, shall share the estate of their father and mother equally. sec. . in case one son and one daughter are the only children, the estate of the father and mother shall be divided into three equal parts, of which the son shall receive two parts and the daughter one part. sec. . in case of multiplicity of sons and daughters, the estate shall be so divided as to give each daughter half the share of one son. article lxxxi a husband shall inherit half the estate of his wife in event of her death and when she has neither a child nor a grandchild. article lxxxii in the event of the death of a wife who has children or grandchildren, her husband shall inherit one-quarter of her estate only, and the other heirs shall inherit the remaining three-quarters. article lxxxiii in the event of the death of a man who has no children or grandchildren, his wife shall inherit one-quarter of his estate only. article lxxxiv in the event of the death of a man who has children or grandchildren, his wife shall inherit one-eighth of his estate only. article lxxxv section . a father or son or wife or husband can not be disinherited by other heirs. sec. . a son disinherits full brothers and sisters, and all other heirs. sec. . full brothers and sisters disinherit more remote heirs. sec. . a grandfather, a father, and a grandson disinherit a brother or sister from the mother alone, or other heirs. sec. . a grandfather, brother, son, and uncle or aunt on the father's side disinherit a full nephew or niece, or more remote heirs. sec. . a full nephew disinherits another nephew who is not from a full brother or sister. sec. . a nephew on the father's side disinherits a full cousin and more remote heirs. sec. . a full uncle [ ] or aunt disinherits an uncle or aunt on the father's side. sec. . a full cousin disinherits a cousin on the father's side. god's knowledge surpasses our knowledge. [the end] this copy [the original] was made at noon of the th day of jamadu-l-awal, in the year of the war between bwayan and the infidels [non-mohammedans]. wounds wounds are classified with respect to depth, locality, and tissue cut. to each class of wound a definite fine is fixed. class i simple wounds the fine for wounds of the skin unaccompanied by bleeding shall be three pesos. [ ] class ii bleeding wounds the fine for wounds of the skin accompanied by bleeding shall be five pesos. class iii skin-penetrating wounds the fine for wounds of the skin where the skin is cut through and the flesh exposed shall be ten pesos. class iv flesh wounds the fine for wounds where the skin and flesh are cut through shall be fifteen pesos. class v periosteal wounds the fine for wounds where the skin and flesh are cut through and the periosteum exposed shall be twenty pesos. class vi deep wounds the fine for wounds that cut into the bone shall be twenty-five pesos. class vii fracture wounds the fine for wounds where the bone is fractured and cut through shall be fifty pesos. class viii dislocating wounds the fine for wounds where the bone is dislocated shall be seventy pesos. class ix skull-penetrating wounds the fine for wounds where the membranes of the brain are penetrated shall be two hundred and fifty pesos. class x brain wounds the fine for wounds where the brain is penetrated shall be three hundred pesos. class xi blood money the blood money for the intentional or willful murder of a moslem shall be one hundred camels or one thousand three hundred and seventy pesos. class xii the fine for amputating or cutting off one hand at the wrist, or higher, shall be fifty camels or six hundred pesos. class xiii deep bone wounds of the head or face the fine for deep wounds of the head or face shall be five camels, or sixty-eight and one-half pesos. class xiv fracture wounds of the head or face the fine for fracture wounds of the head or face shall be ten camels, or one hundred and thirty-seven pesos. class xv deep stab wounds the fine for deep stab wounds shall be thirty-three camels and one-third, or four hundred and fifty-six and two-thirds pesos, which is one-third of the amount of blood money. class xvi the minimum amount of the blood money of a moslem shall be eight hundred and sixty-eight and one-quarter pesos. class xvii the minimum blood money of a heathen or pagan, fifty-seven and one-quarter pesos. class xviii the fine for an involuntary deep wound of a pagan shall be two and four-tenths pesos. class xix the blood money for the accidental or involuntary murder of a pagan shall be forty-three and one-third pesos. class xx the fine for the intentional deep wound of a pagan shall be four and two-tenths pesos. arabic marginal quotations of the luwaran introduction these quotations are given here in the same order in which they appear on the margin of the original copy of the luwaran, with only a few clerical corrections. they are selections from arabic books on law and religion, and form the basis of the magindanao law as given in the luwaran. the order they come in does not always conform to the order of the corresponding articles of the luwaran to which they are appended. the magindanao judges who prepared the luwaran used these texts or quotations as authority for the corresponding magindanao articles they made. but subsequent scribes must have changed the order of these texts on account of their ignorance of the meaning of the arabic text and the places where they should be applied. for aid in reference the following table is prepared: article of corresponding arabic luwaran marginal quotations , ---- ---- - ---- ---- , , , , - - - , , , - translation of the arabic marginal quotations of the luwaran . the person in charge of a property the subject of a suit has the first right to that property; his right must, however, be confirmed by oath. if both parties have charge of the property, their rights shall be regarded equal, and both parties shall take oath. . the compensation for a slave shall be equal to his value. the loss of a limb shall be compensated for by the amount by which that loss reduces the value of the slave. . no indemnity shall attach to the loss or damage of an article borrowed if such loss or damage be incurred in the proper use of such article. . the plea of the defendant in reference to the loss of a borrowed article shall be confirmed by oath. in cases of doubt the loss shall be established first by evidence, and the plea of the defendant shall then be confirmed by oath. . if the borrowed article or property is subjected to insecurity or danger, responsibility shall attach to such an action. . no suit shall be triable after the lapse of fifteen years from the date of the act giving rise to the suit. imam shafii restricted the application of this law to cases where the plaintiff and the defendant live in one town, and where the delay was avoidable. . lost or damaged finds shall be compensated for in kind or in value. . a find shall be the property of the finder irrespective of his religion or character. . the find shall be delivered to its owner, if the owner is known. the finder shall be held responsible for loss of the find or damage to it as long as the find is in his charge. . property seized by force shall be returned to its owner with compensation for any loss that may have been incurred by the seizure. if the seized property be lost, the seizer shall compensate for the loss in kind or in value. . if the seizer and the owner differ concerning a defect in the property, the owner's statement shall be valid if confirmed by oath. . god said, "to you believers i say, you shall not enter the houses of others without their permission." . mohammed said, "whoever enters the house of another shall be responsible for the loss that may occur therein." . if a divorce occurs after marriage but prior to sexual intercourse, half the dower shall be paid. if the divorce occurs after sexual intercourse, all the dower shall be paid. . no dower shall be paid if the marriage contract is broken prior to sexual intercourse. . the expenses of the marriage feast shall not be recovered. . a gift conditioned on compensation may be recovered in kind or value. . the will of the giver and the acceptance of the receiver shall determine the gift. . a gift not conditioned on compensation shall not be recoverable. . a thief shall have his hands cut off. . the thief shall return the stolen property or compensate for its loss. . the confession of the thief and the oath of the plaintiff shall confirm the theft. . the plaintiff's oath if corroborated by evidence shall confirm the theft. . if the statement of the defendant begins with confession and ends with denial, the confession shall be regarded valid. . the testimony of a minor or insane person is null. . the testimony of a slave shall be valid when it bears a disadvantage or punishment to himself. . a slave shall not be contracted with or loaned without the permission of his master. . a slave shall be liable for the payment of a debt contracted prior to liberation. . if the vender and the vendee differ as to the time a certain defect developed in the property sold, the vender's claim shall be sustained if confirmed by oath. . differences between the vender and the vendee as to the amount or price of the property sold or date of the purchase shall be subject to oaths by both parties. . if a defect in the purchased property is recognized after the conclusion of the sale, the property may be returned to the vender, who shall retain of its price an amount equal to the reduction in the value of the property occasioned by the discovery of the defect. . the occurrence of a defect in a slave after the conclusion of the contract does not constitute a right by which the vendee can revoke the sale contract. . if a person purchases a slave and later presents a defective slave and requests the revocation of the purchase contract, and the vender denies the identity of the slave, the vender's statement or plea shall be sustained if confirmed by oath. . if a defect is observed during prayer or meals or at night, notice thereof may be delayed for the time necessary to finish the prayer or meal, or overnight. . other nonpermissible delays annul the right to revoke a sale contract. . if a debtor is sued by the legatee of the creditor and makes the plea that the debt was canceled, the legatee shall take oath to the effect that he has no knowledge of the cancellation of the debt. . a sale contract may be revoked if it does not define the price of the property sold. . the right to property justifies breaking a door or breaking through walls for the purpose of securing it, or its equivalent in kind. . if a person spies on the wife of another person through cracks or holes in her house and an occupant throws a stone at him which hurts or kills him, no fault shall attach to such action. . if the owner of a cat is warned of the fact that his cat eats fowls or provisions of others and the cat repeats such an act, the owner of the cat shall be held responsible for its action. . if a woman is held as security for debt, and her trustee cohabits with her, without the knowledge and consent of the debtor, his action shall be regarded as adultery and he shall pay her dower. if such cohabitation is with the consent of the debtor, no blame shall attach to such action, but the creditor shall pay her dower. the child born under such conditions shall be regarded as a free child, but his value shall be paid to the debtor. . in cases of difference between the debtor and the creditor in reference to the security and its value, the debtor's statement shall be sustained if confirmed by oath. . the creditor shall not be held responsible for the unavoidable loss or destruction of the security. . in cases of difference between the principal and his agent in reference to the compliance of the latter with the instructions of the former, the statement of the principal shall be sustained if confirmed by oath. . the penalty for adultery committed with a married woman shall be eighty lashes. . if an agent is intrusted with the payment of a debt of his principal and is sued by the creditor for his failure to pay the debt, the statement of the creditor shall be valid if confirmed by oath. . the penalty for adultery committed with an unmarried woman is, according to the letter of the law, stoning to death of both adulterers. this is generally reduced to lashes for each offender. . the judge shall first hear the evidence of the plaintiff if he has any, and render judgment accordingly. if no evidence is produced, the statement of the defendant shall be valid if confirmed by oath. . the punishment for adultery committed by slaves is fifty lashes. . in stoning adulterers both men and women shall be buried to the level of the chest and the stones shall be of medium size. . if a man has sexual intercourse with the slave of another man and she dies during childbirth, he shall pay a fine equal to her value. . if a married mohammedan is killed by a christian on account of adultery, the christian shall be put to death; but if he is killed by another mohammedan, the latter mohammedan shall not be put to death. . if a plaintiff proves by evidence his ownership to a certain animal or tree, he shall be entitled to the future produce of that animal or tree. . if a person secures a lease on a certain piece of land for the purpose of cultivating it, he shall be bound by the terms of the lease whether he cultivates the land or not. the payment is generally made at harvest time. . if a slave runs away from his master and seeks refuge in the house of another person who knows the master of the slave and such person does not inform the master of the slave of the fact, such person shall be held responsible for the slave whether the slave stays with him or runs away again. . if a husband's absence is unusually long and no information can be obtained concerning him, his wife shall not marry another person unless she knows surely that he is dead or that she is divorced. . if a ship is in danger of foundering, the cargo should be cast overboard for the purpose of saving the passengers; but if a person cast overboard another person's property without order or permission, he shall be held responsible for the loss. . if a person under conditions similar to the preceding case orders another person to cast his property overboard and such other person casts his property overboard, no responsibility shall be attached to the order, unless express responsibility is stated in the order. . the estate of a deceased person shall be held as security for the payment of his debt, whether the debt be known to his heirs prior to or after the division of the estate. . the heir has the right to take possession of the estate if he pays the debt with his own money. . no punishment shall attach to accidental murder while hunting, whether the shooting be voluntary or forced. . if in such a case a fine is imposed, it shall be equally divided between the shooter and the person who ordered the shooting. . if a person shoots at a tree and kills a person, or shoots at a person and kills another, such murder shall be regarded as accidental murder. . if a person is ordered to climb a tree and he falls and dies, no blood money shall be paid by the person who gave the order, for such murder is not intentional. . if a person claims that a certain child was born of a female slave who conceived the child while in his possession, and confirms his claim by witness and by oath, his claim shall be valid and the child shall be regarded as a free child. . if a person claims that a certain slave had been his and was liberated, and his claim is confirmed by a witness and by oath, the slave shall be liberated again. . if two parties differ as to whether a certain property belongs to one of the parties or to both of them as partners, the statement of the party in charge of the property shall be valid if confirmed by oath. . if a person claims that the partnership has been dissolved and that a certain property has become his own, and his claim is contested by another party to the partnership, the statement of the latter party shall be valid if confirmed by oath. . if a person who is a party to a partnership buys a certain property and states that such property has been bought for the partnership, and his statement is contested by another party to the partnership, the statement of the purchasing party shall be valid if confirmed by oath. . god said, "the punishment for murder has been ordained for you, a free person for a free person, a slave for a slave, and a woman for a woman." . such punishment shall not be executed without the authority of the imam (caliph). . a free person shall not be put to death for killing a slave, but all grades of slaves shall be subject to such punishment. . a free woman or a hermaphrodite shall be regarded as half a man in all considerations referring to person or injury. . if a free man divorces his wife three times or a slave divorces his wife twice, it shall not be lawful for either of them to marry the same woman again before she has been married to another person. . a nonpregnant woman shall mourn for her husband four months and ten days in full. a nonpregnant slave woman shall mourn for her husband two months and five days. . god said: "your widows shall not be allowed to marry again before the lapse of four months and ten days. pregnant widows shall not marry again before childbirth." . a divorced wife who is still in the period of suspension can inherit unless she has been divorced three times. . if a person throws sweepings or melon rinds on the road, he shall be responsible for the consequences. . if a person helps a child or insane person to poisoned food, he shall be punished. . adults and sane persons shall be liable to punishment for murder; an intoxicated man is also liable to punishment for the same offense. . intentional intoxication fixes the liability to punishment. . a defendant's plea on the ground that he was a child or insane at the time the murder or crime was committed, if reasonable and confirmed by oath, shall be valid. a child is exempt from oath and from punishment. . if a person startles a minor standing near the edge of a roof (flat roof) and the minor falls and dies on that account, he shall pay a heavy fine. . if a minor is accidentally alarmed and falls from a roof and dies, the fine shall be light. . injuries done to a slave are compensated for by the amount of the reduction affecting his value. . similar to . . a slave is liable to fine for his crimes; his master shall either pay his fine for him or sell him to pay the fine, if the price exceeds the fine. if the fine exceeds the price, the slave shall be held personally responsible. . in case the plaintiff can not produce evidence or witness, the defendant shall take the oath. but if the defendant refuses to take oath, the plaintiff shall take oath and confirm the charge. . if the plaintiff claims that a certain adult person is his slave, and the defendant denies the charge, the defendant's statement shall be valid if confirmed by oath. . what is borrowed shall be returned in kind. . the will of a free adult shall be legitimate whether he be an immoral person or an infidel. the will of the insane, the intoxicated, the child, and the slave shall not be legitimate. . a will is null if the legatee dies before the testator; otherwise it is legitimate, and [the property] may be transmitted to the heirs of the legatee. . a will can not exclude legitimate heirs in the interest of one heir alone, except with the consent of the excluded heirs. . a person may recover his property directly if that can be done peaceably; otherwise he shall submit the case to the judge. . to be legal and binding the instructions and the trust of a principal must be authentic. . the agent must be capable of independent action and must be of age and sane. the agent shall not be a minor or insane. . in case of involuntary collision attended with the death of both parties, the respective heirs shall pay a light fine. (this is intended to secure aid for funeral expenses.) . if the collision is intentional, the fine shall be heavy. if only one party intended the collision, such party shall be punished on the merits of the case. . minors and insane persons shall be judged like sane adult people. (this has reference to conditions similar to those of the two preceding cases.) . male children, whether single or multiple, shall inherit all the estate of the parents. . a daughter shall inherit one-half. . two or more daughters shall inherit two-thirds. . in case of multiplicity of children, males and females, the male child shall receive twice as much as the female child. the word of god said: "this command god gives you concerning your children, the male shall have the shares of two females." . god said: "each man shall have half of the inheritance of his wife if she have neither a child nor a grandchild born of a son." . god said: "if a man's wife dies and leaves a child or a grandchild born of a son, he shall have a quarter of her inheritance." . god said: "if a husband dies without a child or a grandchild born of a son, the wife shall inherit a quarter of his estate." . god said: "if a husband dies and leaves a child or a grandchild born of a son, the wife shall inherit an eighth part of his estate." . the father, the son, and the husband can not be disinherited. transliteration of articles i-viii of the luwaran bismi-l-lahi-r-rakmani-r-rahim. alhamdu lillahi-l-lazi hadana lil iman wal islam, wa sálla-l-lahu ala sáyyidina muhammad wa ala alihi wa sahbihi ajmain. article i. nini isa a húkum. amayka adun uttuntuta a duwa a taw atawa i ya tigu sakataw tamúkku inín ya manum tigu sakataw tamúkku inín, i ya bunárun su uppákakámal kanu tamuk sarta ussápanin. amáyka silandun a duwa kataw uppákakámal kanu tamuk sapan silan a duwa kataw; amayka ussápa silan a duwa kataw badun sakanilan su tamuk sapapagíssanun. amayka ya bu ussápa su sakataw ya bu makákwa kanu tamuk su ussápa salkanín su tamuk. hatta wal-lahu alam. article ii. nini isa a húkum. anunu sumu´mbay su isa a taw kanu pudin unggu dun mádadag su sinumbayan, báliwanan dun kanu háraganin. píssan rinámpas su sinu´mbayan u kanu sinumu´mbay báliwanan dun kanu háraganin unggu úmanan sa undáwi (ndáwi) kapatúta kaúmanun kanu tamuk u nádadag. hatta tamat al-lahu alam. article iii. nini isa a húkum. anúnu sumu´mbay su isa ataw kanu pudin sapárati patuk atawa tambuku unggu dun matupud su patukatawa mágbang atawa mádagag su tambuku, amayka ya katupudu patuk atawa ya, kakbángu patuk atawa ya kadádagu tambuku su átagu kina-su´mbayninún unggu dikna táksir su sinumu´mbay dili kabáliwanán su sinumbayan. amayka sin itímbas su patuk sa átaga ig atawa sin itímbas kanu sápun a tamlang undu dili íktan su patuk unggu dun mádadag disadíli baliwanan dunu sinumumbay su sinumbaynin. tamat wal-lahu alam. article iv. nini isa a húkum. anunu malidu duwa kataw i ya, tigu sakataw su utángku nábayadángku dun, i ya manum tigu sakataw dalaka makabáyad, amayka dala sáksi nu duwa kataw bunárun su panúntut sarta ussápanin; amayka dili ussápa, i ya bunárun su pudtuntutan. tamat wal-lahu alam. article v. nini isa a húkum. anunu itágunu isa ataw su tamukin kanu púdin, máwli nggu dun kuwánu (kwánu) tinumágu su tamukin, i ya tigu tinágwan kinwanungka dun atawa ya nin tig nádadag, amayka dala saksi nilan a duwa kataw ya bunár su tinágwan sarta ussápanin. tamat wal-lahu alam. article vi. nini isa a húkum. anunu su támuku taw a nadagag sábap sa natágakin nggu dun matunu isa a taw nggu nin dun itábun, mawli nggu dun maylaynu ugkwan kanu támuk i ya nin tig támuku inín a natagákku, i ya tigu nakatun dikna nungka tamuk dan dun a tamuku; amayka adun saksi kanu tamuk a natun a dikna tamuk a dan dun sabap sa támuk a natun, yuli su tamuk sarta úmanan su undáwi kapatútin, isa a dúdan atawa duwa a dúdan. tamat wal-lahu alam. article vii. nini isa a húkum. anunu rinámpas su támuku taw wájib i yulinu rinumámpas sarta úmanan sa kiira kiranu gúnanin kanu kínarámpasun. tamat wal-lahu alam. article viii. nini isa a húkum. anunu mánik su taw kanu walaynu salakáw sálkanin a dikna kiyúgu ugkwan kanu walay unggu dun malipungu't su gkwan kanu walay, amayka mágabi masála su minánik sa pata dúdan. tamat wal-lahu alam. sulu codes the principal sulu code this code was prepared by sultan jamalu-l-a'lam and was used without any modification by sultan harun. the present sultan's minister, hajji butu abdul-baqi, has made a new code which has just been proclaimed, but which has not yet met with general approval. this copy of the old sulu code is the original which was used by the sultan jamalu-l-a'lam himself, and also by sultan harun. it was written by asmawil, the chief clerk and minister of jamalu-l-a'lam. the manuscript was secured from sheikh mustafa, former minister to sultan harun. this code differs considerably from the former one used by sultan pulalun, the father of jamalu-l-a'lam, which was more in conformity with the letter of the quran, much more severe in its sentences; hence the change was welcomed. introduction this book is a guide for the proper execution of the duties of office in accordance with the law and rules of the country. it is concurred in by all, and is promulgated with the general consent of all the datus, panglima, and subordinate officers of state. this on sunday, the fourth day of the month rabi' akir, in the year dal akir, which corresponds to the year a. h. may it enhance the good and the prosperity of our country; and may god give blessing and peace to its author. the code article i section . whoever shall abduct the child of a free man, and be found out, shall be fined twenty rolls or pieces (gajahilaw) of calico (siddip) or its value. [ ] the abductor shall return the child. a bail also is required which shall be equal in character and value to the abducted child. sec. . if the abductor of a free person is a slave, the master of the slave shall be examined to find out whether or not the abduction was committed with his knowledge and consent. in case he says that it was done without his knowledge and consent he must be sworn on the quran. but, though he swears to that effect, he shall be held responsible for the return of the abducted person. then if the actual abductor or abductors do not return the person or persons abducted, he or they shall be taken in payment thereof. but if the master of the slave does not swear to that effect, he shall be held responsible personally for the abduction, and the case shall be treated as a case of abduction by a free man. the condition of the slave, whether privileged to live independently or not, does not affect this decision. article ii section . (a) if property of any kind of the sultan is stolen, the thief shall be fined fifty pieces (gajahilaw) of calico. (b) if property of datus with official titles or that of twan sarip usman is stolen, the thief shall be fined thirty-five pieces of calico. (c) if datus without official title or descendants of a sarip or of panglima adaq are robbed, the thief shall be fined thirty pieces of calico. (d) if ministers of state or panglima pihaq are robbed, the thief shall be fined twenty-five pieces of calico. (e) if subordinate officers below the panglima [ ] or inland country pandita or the agents of the sultan or panglima are robbed, the thief shall be fined twenty pieces of calico. (f) if children of subordinate rulers or chiefs are robbed, the thief shall be fined ten pieces of calico. sec. . (a) theft of small articles (petit larceny) such as articles of diet, etc., of the value of one piece or half of a kusta or sarong, shall not be punished by fines, but the articles themselves shall be restored to the proper owner or owners, twofold, and the thief shall suffer fifty lashes; if the theft is repeated on two or three occasions, the offense shall then be regarded as a case of great theft. (b) theft of property of the value of one kusta and over is great theft (grand larceny) and shall be punished by fine as provided in section one: provided further, that the articles of property stolen shall be restored to the owner or owners thereof, and the thief shall suffer one hundred lashes. the fine shall be divided between the person robbed and the governor (the chief usually acts as judge), in the following manner: when no trial shall have been held, the robbed party shall receive seven parts and the governor three parts; if a trial is held, the fine shall be divided equally between the governor and the party robbed, whether he be a person of rank or otherwise. (c) if the thief is a great or noted person or a governor, the fine shall be doubled. (d) the same penalty shall be applied to all persons convicted of theft, whether male or female. (e) in all cases of theft the stolen property shall be restored to the owner or owners thereof. (f) the buyer of stolen property shall be regarded as a thief unless he proves the truth of the sale in the presence of the governor. if he fails to have the seller examined and brought before the governor, he shall be regarded as a partner in the theft. article iii section . a false claim to property or debt shall be regarded as theft and shall be adjudicated accordingly. article iv section . whoever exacts a claim by force without the permission or direction of the governor shall return whatever he exacts and forfeit his claim; and in case the claim is not substantiated he shall return the exacted object, and shall be fined two pieces of calico, to be equally divided between the governor and the person from whom he has exacted. article v section . complainants who disagree upon the authority before which they should appear shall come to a panglima. in case they do not agree upon a panglima they must come to the sultan. but in case they agree, it is preferable that they should appear before the local governor or authority. article vi section . whoever attempts to kill and kills a freeman shall be fined fifty pieces of calico as blood money, also twenty gajahilaw to be paid to the governor. whoever attempts to kill, but fails to kill, a freeman shall be fined twenty-five pieces of calico, to be paid to the attacked party, and ten gajahilaw to be paid to the governor. cases of unintentional and accidental killing and cases where the killing is done by an undetermined party shall be regarded alike. the blood money in each case shall be thirty gajahilaw. note.--in case a murder occurs in a neighborhood or village, and the actual murderer is unknown, the blood money is paid by the people of that neighborhood or village. they pay the full amount of blood money in case they do not swear to the effect that they did not commit the murder, but in case they swear to that effect they pay only half the fine. article vii section . the fine for marriage by abduction [ ] shall be six pieces of calico and the woman's dower [ ] shall be doubled. in case the dower is expressed in terms of slaves, the value of the slave shall be considered equal to four pieces or gajahilaw. the price of the bride, usually paid to the parents of the woman, in ounces of gold, called in sulu basing, will be paid at the rate of one gajahilaw for a basing. the governor's share of the fine shall be four gajahilaw. sec. . the fine for elopement is four gajahilaw and the dower shall not be doubled. the slave's rate of exchange shall be four gajahilaw in case it is the custom of her family to receive actual slaves as a dower. the basing's rate of exchange is one gajahilaw. in case the slave dower is nominal, the slave's rate of exchange shall be three gajahilaw of calico, and the basing one piece of kusta, of low grade. sec. . in case of seduction admitted or disguised, marriage shall be concluded if the woman requests it. the man shall be fined two gajahilaw and the woman shall be treated as if she eloped. in cases of actual slave dowers, the slave's rate shall be four gajahilaw and the basing one gajahilaw. in cases of nominal slave dower, the slave's rate shall be three gajahilaw and the basing's one piece of kusta of the low grade. sec. . compulsory marriage is treated as marriage by abduction. sec. . (a) if adultery is committed with a panglima's wife, the man shall be fined fifty gajahilaw, which can not be exchanged with anything except gold, silver, brass drums, or lantaka. if unable to pay, the man himself shall become the property of the panglima. [ ] (b) if adultery is committed with the wife of a maharaja pahlawan, [ ] the man shall be fined forty gajahilaw; which can not be exchanged except as in the previous case. (c) if adultery is committed with the wife of a subordinate officer of state or a country pandita, or an agent of a governor, the man shall pay a fine of thirty gajahilaw, unexchangeable except as in section five (a). (d) if adultery is committed with the wife of a pandita who is in the council or in the capital of the sultan, the man shall pay forty gajahilaw. (e) if adultery is committed with any married woman, the man shall pay a fine of twenty gajahilaw, unexchangeable except as in section five (a). (f) if a married woman commits adultery with her own consent, she becomes a slave to her husband; but if it is compulsory and without her consent, she will not be subjected to slavery; it is her duty then to tell her husband or his nearest relatives of the fact at the earliest opportunity--the next morning in case it occurs at night. (g) if a male slave commits adultery with a free married woman, the slave becomes the property of the husband of that woman. (h) if a free man commits adultery with a married female slave, the decision will be the same as if the crime had been committed with a free married woman. (i) if a male slave commits adultery with a married female slave against her consent, the male slave becomes the property of the master of the married female slave; but if the crime is committed with her consent, she becomes the property of the master of her husband. her master pays the fine due the governor. (j) if a man commits adultery with the sister of his wife, his wife not being divorced, he will be judged as if he had committed adultery with the wife of another man. all the subordinate officers [ ] of state are hereby requested to exercise all care in administering justice to all who come to them for judgment and decision. they should all adhere to the seven articles of mohammedan law and be deliberate in their just application. in case any complainant appeals to one of you from the decision of another authority, do not accept the appellant's statement and render your decision unless you inquire well about the case from the previous authority who judged it. in case you find the decision of that authority wrong do not be ready and quick to blame him and criticise him, but try to act in conformity and union. in case you find his decision right, notwithstanding the appellant's complaints, bring both the appellant and the appellee to the panglima. if the panglima can not render a solution, he should bring them to the sultan, together with the authority from whose decision the appeal was made and the authority to whom the appeal was made. if the governor or the authority to whom they appeal does not investigate or inquire about the case from the governor from whom they have appealed, his decision shall be null and void. any person who exercises the right to judge without authority from the sultan shall be fined one male slave. all governors and their subjects ought to abide by and aid in carrying out all the articles of this code. any person who does not fulfill this duty will have all the curses and the calamities of this world and the world to come that befall the man who swears falsely by the thirty parts of the quran. the new sulu code the new code is a rearrangement of the old code with some changes and modifications. its author is hajji butu abdu-l-baqi, the present prime minister or adviser of the sultan jamalu-l-kiram the second. it was issued in the latter part of , but there has been so much objection to it on the part of many datus and chiefs that its general adoption seems impossible. for a sulu hajji butu is a man of talent and understanding. he knows some arabic and is probably the best sulu scholar in the archipelago. this code greatly increases the fines exacted from the people, creates a treasury under the control of hajji butu, and entitles the sultan to a share of the fines collected by the various datus and chiefs. the chiefs and the people look upon it as another form of unjust taxation. the opposition to its adoption is so strong and so bitter that nothing except force of arms can enforce its use. this is beyond the power of the present sultan. introduction this book is a guide to the proper execution of the duties of office in accordance with the law and the rules of the country. it is concurred in by all and is promulgated with the general consent of all datus, ministers, panglima, and subordinate officers of state. may god enhance by it the good and prosperity of our country. this at o'clock, saturday, the th of the month jul kaidat of the year b, which corresponds to the year a. h. this is to proclaim hereby the decrees of padukka mahasari mawlana hajji mohammed jamalu-l-kiram. the subjects discussed in the following articles are, first, theft; second, murder; third, adultery; fourth, opprobrium; fifth, cases arising from unwitnessed purchase; sixth, false claims; seventh, unlawful or unauthorized exactions; eighth, debt; ninth, finds; tenth, unjust actions and decisions. to every crime or misdemeanor which comes under these articles a fine is attached, differing according to the nature and the degree of the crime. the code article i section . the thief shall be fined seventy pesos, no matter what he steals. the fine shall always be seventy pesos irrespective of the person robbed, be he low or high in rank. the manner in which the fine shall be divided between the person robbed and the treasury differs. (a) if the sultan's property is stolen, fifty pesos shall go to the sultan and twenty pesos to the treasury. (b) if datus with official titles or twan habib mura are robbed, forty pesos shall go to the person robbed and thirty pesos shall go to the treasury. (c) if other datus or twan hajji butu or a descendant of a sarip are robbed, thirty-five pesos shall be paid to the person robbed and thirty-five to the treasury. (d) if a minister of rank and official title or a hajji in the council of the sultan is robbed, thirty pesos shall be paid to the person robbed and forty pesos to the treasury. (e) if a minister of rank without any official title or a panglima pihaq [ ] or a pandita of the capital is robbed, twenty-five pesos shall be paid to the person robbed and forty-five to the treasury. (f) if a subordinate officer of state or an agent of the sultan or a country pandita is robbed, twenty pesos shall be paid to the person robbed and fifty to the treasury. (g) if a common person is robbed, fifteen pesos shall be paid to him and fifty-five to the treasury. (h) the thefts referred to above include cattle, slaves, and every article of value. sec. . (a) if a free person is abducted, the fine shall be divided equally between his agnate and cognate heirs and the treasury. (b) the abducted person should be returned. no one except the child or wife of the abductor, in case the abductor is a free man, can be substituted for the abducted person. (c) if a free person is abducted by a slave, the master of the slave will be held responsible. if the abducted person is not returned, the abducting party, whether one person or many, will be taken instead. (d) small thefts below the value of one peso shall not be punishable by fines. the stolen object shall be returned twofold and the thief shall suffer fifty lashes. article ii section . murder is of four kinds--the first is intentional; the second, semiintentional; the third is accidental; the fourth, murder committed by a crowd. sec. . the fine for intentional murder shall be one hundred and five pesos; seventy for the agnate and cognate heirs of the murdered person and thirty-five for the treasury. sec. . an attempt to kill that does not result in death shall be punished by a fine of fifty-two pesos and a half; thirty-four pesos and a half shall be paid to the near relatives of the attacked or injured person and eighteen pesos shall be paid to the treasury. sec. . all cases of semiintentional and of accidental murder and cases of murder committed by a crowd shall be treated alike and fined equally. the fine shall be fifty-two pesos and a half; thirty-four pesos and a half shall be paid to the heirs of the murdered person and eighteen pesos to the treasury. sec. . if more than one person is killed, one hundred and five pesos shall be paid for each person killed as his blood money. article iii immoral conduct section . if a married woman commits adultery, she shall become the slave of her husband, and the guilty man shall pay a fine of one hundred pesos to the treasury, and in case he can not pay that sum he shall become a slave himself. sec. . if a married woman is simply guilty of immoral conduct, such as a kiss or an embrace with another man, and quickly reports the facts to her husband or his immediate relatives, her conduct will then be regarded as compulsory and she will not be liable to any punishment; but the man shall be liable to a fine of one hundred pesos, half of which shall be paid to the husband of the woman and the other half to the treasury. sec. . the abduction of a woman and cases of compulsory marriage shall be treated alike. the guilty man shall pay a fine of fifty pesos, out of which the treasury shall receive twenty pesos. the woman's dower under such circumstances will be like that of her mother, and nothing else of the usual formalities shall be given to her people. sec. . in cases of seduction, admitted or inferred by the woman's request to marry the man, both man and woman shall be fined. the man shall pay a fine of fifty pesos, twenty of which shall be paid to the treasury, and the woman shall pay a fine of ten pesos to the treasury. sec. . cases of elopement are considered as seduction, though there be no actual sexual intercourse between the man and the woman, because elopement occurs by the mutual consent of both parties. sec. . (a) in case a woman was regularly engaged and has lost her virginity, her dower and her basingan (the bridal price expressed in ounces of gold, and paid to the parents of the bride) and all other gifts shall be returned to her husband. the expenses of the marriage, as of rice and meat, etc., shall not be paid back. (b) but in case a woman who has lost her virginity is abducted or married by compulsion, the husband shall forfeit all claim to her dower or her basingan, etc. sec. . (a) if a male slave commits adultery with a married free woman, he becomes the slave of her husband. (b) if a free man commits adultery with a married slave woman, he becomes the slave of her husband. (c) if a male slave commits adultery with a married female slave, he becomes the property of her master. (d) cases of seduction or marriage between slaves, in which the woman is a maid, shall be treated the same as if they were free persons, except that the fines shall be half as much. article iv opprobrium section . an adult who insults, abuses, defames, or slanders another adult, without any provocation or in a way that is inappropriate to the guilt committed, shall, if brought to trial, be fined ten pesos. sec. . children who commit the aforesaid offense are not liable to trial. sec. . if in such cases an adult interferes with children and hurts a child, he shall compensate for the harm done. sec. . if in such cases an adult interferes with children and he hurts himself, he forfeits all claim for compensation. sec. . women who commit the same offense shall, as in the case of children, not be liable to trial. article v trade and exchange section . under this article is included the sale or exchange of slaves, cattle, arms, and all commodities. sec. . whoever trades or exchanges without the knowledge and the authorization of the governor or his representative shall be fined seventy pesos. each party to a sale or exchange, no matter what the rank of the person may be, shall pay the fine. all of the fine shall go to the treasury. sec. . to buy a stolen article is the same as to steal it. article vi false claim section . a false charge, a false claim of debt, and a false complaint or suit shall be regarded as cases of robbery. article vii unlawful exactions section . whoever exacts or enforces a claim without either the permission or the advice of the governor shall forfeit that claim and all rights to a just trial of the case. sec. . if a person fails to respect or disobeys the advice or decision of the governor, he shall forfeit his right to the contested object. sec. . if a person is not sure of the exact amount of the claim he exacts, he shall forfeit his right, and shall return the amount exacted, and pay a fine of ten pesos, to be divided equally between the governor and the treasury. sec. . (a) if a fight starts unexpectedly between two parties and results in harm to a third noncombatant party, the combatants shall be held equally responsible for the harm. (b) if the harm in the above case amounts to death, both combatants shall be liable for the blood money and the crime shall be regarded as intentional murder. (c) if harm in the same case falls short of death, the combatants shall be liable for half the blood money and a fine of twenty pesos, to be paid to the treasury. sec. . whoever attacks or invades the house of another without the permission of the governor and causes the death of another party shall be guilty of intentional murder and shall be liable for the blood money of the person killed and a fine of twenty pesos to the treasury. sec. . (a) if in the above case the attacking party is killed the blood money shall be forfeited. (b) if the attacking party is only injured, he shall be liable to a fine of twenty pesos and shall pay for all that is lost or destroyed by reason of his attack. (c) if the attacking party is multiple, each person shall be liable to a fine of twenty pesos, no matter how many they may be, but the damage done shall be compensated for by the leader or instigator of the attack alone. article viii debt section . the creditor shall ask and investigate about the debtor from those who know him and shall also inform the heirs of the debtor concerning the debt to be contracted, for in case the debt is contracted without the knowledge of the heirs and the debtor dies the heirs shall not be held responsible for the payment of the debt. sec. . in case the debtor dies and leaves property inheritance and wives and children, his debt shall be paid from that inheritance. sec. . a debt is void unless it is called for before the lapse of three years in case both debtor and creditor live in the same town. this shall not hold true in case they live in two different towns, especially when they are separated by sea. article ix finds section . the finder of any property, whether it be a horse or head of cattle, or a runaway slave, or any forgotten or fallen article, shall be rewarded, no matter who finds it. sec. . the customary reward for a find is at the rate of one cent for every dollar's worth of the find. sec. . in case the find is made within the limits of the town and belongs to a member of the same party, it shall be returned without any reward. sec. . any person who makes a find shall make it known to the public, or bring it to the governor, or return it to its owner. if this is not done, and the find is not submitted to the governor within seven days, the case shall be regarded as robbery and the finder shall be fined seventy pesos, to be paid to the treasury. the same rule shall govern similar cases that occur out in the country or on the sea, except that the fine shall be equally divided between the governor and the treasury. the share that belongs to the treasury shall be intrusted to the governor for safe-keeping and future payment to the treasury. any dishonesty committed in this matter will be a sin that results in loss both in this world and in the world to come. article x all subordinate officers of state are hereby enjoined to exercise all care and justice in their judgments and to adhere with all devotion to the seven articles of mohammedan law. in case any complainant appeals to one of you from the decision of another authority, do not accept the appellant's statement and render your decision without inquiring well about the case from the previous authority who judged it. in case you find the decision of that authority wrong, do not be ready and quick to blame and criticise him, but try to act in conformity and union. in case you find his decision right, bring both the appellant and the appellee to the panglima. if the panglima does not furnish a solution, he shall bring them to the sultan, together with the authority from whose decision the appeal was made and the authority to whom the appeal was made. if the authority to whom they appeal does not investigate or inquire from the authority from whom they have appealed, his decision shall be null and void. any person who exercises the right to judge without authority from the sultan shall be fined one male unmarried slave. all governors and their subjects shall abide by and aid in carrying out all the articles and provisions of this code. any person who does not fulfill this duty will have all the curses and the calamities of this world and of the world to come that befall the man who swears falsely by the thirty parts of the quran. chapter iii two sulu orations the sulu oration for the feast of ramadan (written in the six semicircles) praise be to god. glory be to god. there is no god but god. god is almighty this oration was finished at noon, friday, the th of rabi-el-akhir, in the year hejira. in the name of god the compassionate and merciful. god is greatest. god is exalted. he is the master of the world and the king of the universe who rules with conquering power. invisible to the eye, he is visible through his power and might. his is all the power and glory. his is all kindness and glory. he is the almighty and the ruler of all. he is everlasting and never dies. there is no god but he. everything vanishes but the face of god. he is our governor, and to him all shall return. before him the learned men are humiliated; and the mighty humble themselves in his presence. all the prophets have spoken of his lordship; and all the men of old have borne witness to his unity. all the men of learning have spoken of his eternal being. the wise men are unable to give an adequate description of his attributes. all that is in the earth and the heavens acknowledge his worship, and praise him day and night without ceasing. god is greatest. he is the lord of lords and the liberator of the world. he inspired the book and commands the clouds. he overcomes all difficulties. he is the cause of all causes. he opens all doors and answers all who call him. the lord has said, "call me, and i shall answer you. all who despise my worship shall enter hell." god is almighty. all the heavens praise him. the sandy deserts, the shades and all darkness, on the right and on the left, praise him morning and night. there is nothing that does not sing his praises; but you can not understand their praises. oh, how kind and forgiving he is! god is almighty. all the angels praise him. the heavens, the earth, the mountains and hills, and all the birds praise him. praise and glory be to thee, o lord. thou art the lord of indescribable might and honor. peace be to the missionaries, and praise to god, the lord of the universe. here the orator shall repeat, "god is almighty," seven times, then say the following: god is almighty. praise be to god, the god of kindness and of grace, who ordained that the faithful should observe the month of fasting and gave them at the end thereof a feast, to all whether near or far, in token of his hospitality and generosity. let us praise him always. he is righteous and all sacredness. the king of the universe, land and sea. he ordained for the mohammedans the two feasts, ramadan and that of the sacrifice. i bear witness that there is but one god, who is alone without a partner. he made the two feasts for the observance of all mohammedans and the time of their celebration the greatest season of the year. i testify that mohammed is his servant and apostle. god bless mohammed at all times and through all ages. oh, you people, fear god. may god have mercy on you fellow-mohammedans and brothers in the faith. he has sent down to you this exalting and magnifying day as an expression of his generosity and hospitality. on this day he permits you to feast and forbids you to fast. respectful observance of this day is pleasing to god and he who so observes it shall be greatly blessed. charity on this day is highly acceptable. all you ask on this day shall be given you. on this day every call is answered. the prophet, god bless him, said, "on this day give charity for everyone, male and female, for every free man, for every slave, for the young, and for the old give a measure of flour or a measure of dates, a measure of rice, a measure of raisins, or a measure of barley, or whatever you eat on this day give as charity for all the people who are of your religion, of your nation and under your law. this will atone for your sins and all your misdeeds during the days of fasting." the prophet, god bless him, has said, "he who fasts the month of ramadan and withholds his measure of charity on the feast day, his fasting shall not be acceptable to god, and he shall not reach heaven, but shall be stopped halfway between earth and heaven." the prophet said, "he who fasts the month of ramadan and follows it with six days of shawal shall be regarded as if he had fasted forever." may god make us successful and honest and enlist us in the ranks of his faithful followers. the best of all speech is the word of god, the all-knowing king, the exalted and the respected. god himself, whose word is perfect truth, said, "when the quran is read, listen to it with attention, that ye may obtain mercy." when the quran is read, ask refuge in god from the accursed devil. jesus, the son of mary, said, "god our lord, send us a table from heaven that we may all, from the first to the last, feast thereon." be thou generous to us for thou art the best of all givers. exalted is god the true king. there is no god but god, the lord of the great throne. he who calls another god whose deity he can not prove shall render account to the lord his god. infidels can not succeed. say my lord, forgive me, and have mercy upon me. thou art most merciful. he who may deliver this oration shall here repeat the chapter of the salvation, after which he shall rise and read the following oration twice, and shall say, "god is almighty," seven times: god is almighty. praise be to god, whose praise is exalted and glorious. i testify that there is no god but god, and that he is alone and has no partner. i bear witness that mohammed is his servant and apostle, and the bright light of the world. may god bless mohammed and all his people and descendants. oh, ye people, depart from evil and draw near to good. avoid excess and ye shall be happy. god and his angels bless the prophet. ye who have faith bless him also. ye servants of god answer his call, and bless him through whom god has directed you. o god, bless mohammed and his descendants, for he has directed us to paradise and the roads that lead thereto. o god, bless mohammed and his descendants because he warned us of the fire and its evils. o god, forgive his followers, and his caliphs abu-bakar, omar, othman, ali, talhat, zubayr, abdu-r-rahman the son of awf, sa'din saidin, and abi ubaydat, because they are the princes of the faithful and the best of all people. o god, forgive all other followers and friends of your prophet, and all who follow them. be kind to them in the day of judgment. give them and us mercy, for thou art most merciful. o god, perpetuate the power and the victories and the conquests of him whom thou hast chosen for the administration and good management of temporal affairs and religion; he who beseeches the intercession of the faithful prophet, our master, the sultan mohammed pudhalun, the son of the late sultan mohammed jamalu-l-kiram, and the sultan, the master, and the noble whom thou hast chosen, sultan esh-sharifu-l-hashim, the kindled light of god; and our thoughtful and wise master the late sultan kamalu-d-din; and protect the kind and generous late sultan alawa-d-din, whose descendants became the kings of the sulu country. protect the champion of the mohammedan religion and faith, the late sultan amirul umara, and the late sultan shah muizzu-l-mutawadhi-in. protect the power of the generous and victorious late sultan shah nasiru-d-din the first. defend the conqueror, the late sultan shah mohammed el halim; defend the intelligent late sultan batara shah; protect the noble late sultan muwalli el wasit shah; aid our great master, the excellent and powerful and the victorious on land and sea, the sultan shah nasiru-d-din the last; aid the just and honorable and ascetic master, the late sultan shah salahu-d-din. o god, support islam and all mohammedans. fight against atheism and heresy and evil, the enemies of religion. aid the ever-victorious sultan ali shah, the great and most superior sultan; sultan of the land and sea; and his heir, the late sultan shah shahabu-d-din mohammed, who was versed in law and all learning; and the late sultan shah shafi-d-din mohammed mustafa, the best of all things. defend the late sultan and wise governor shah badaru-d-din mohammed, the victorious. may god perpetuate on earth his power, and his kingdom, and his justice. o god, support the late sultan nasaru-d-din, the victorious, the administrator, and the able supporter of our religion; the late sultan alimu-d-din the first, mohammed, the prince of the faithful, the seeker of god's mercy; and the obedient to his will; the late sultan shah muizzi-d-din mohammed, the emigrant, the learned, the truthful, and the generous; the late patient sultan shah mohammed israyil; the late sultan shah alimu-d-din the second, mohammed, the peaceful, the chosen, and the powerful; the late sultan shah sharafu-d-din mohammed, the merciful, seeker of knowledge, and doer of good deeds; the late noble sultan shah alimu-d-din the third, mohammed; the late sultan shah aliu-d-din mohammed, the great and victorious; the late sultan shah shakira-l-lah mohammed, conqueror of atheism and heresy, who was versed in mohammedanism and monotheism; the late sultan shah jamalu-l-kiram mohammed, the kind and the wise and beloved of his people, master of truth and good, whom god alone prevented from making the pilgrimage to the house, and who was patient, lenient, and good, who encouraged good deeds and forbade evil, and who was good in his administration. may god perpetuate his kingdom, his power, his justice, and his kindness. may god forgive him and his forefathers and be good to all of them and give them a place in paradise. o god, aid all who befriend him; be the enemy of all his enemies; uphold all who uphold him; reject those who reject him; and vanquish those who may vanquish him. be thou his help and aid, and use him as a sword of vengeance against all offenders. thou art my god, the god of truth and lord of the universe. o god, set right our leaders and our nation, our judges, our rulers, our learned men, our lawgivers, our wise men, and our old men. aid them in righteousness, and guide us. o god, destroy the enemies of our religion and unite the hearts of the faithful. free the captives and pay the debts of the debtors. relieve the distressed and forgive the living and the dead. god grant peace and safety to us and to the pilgrims and to the travelers on land and on sea who are of the people of mohammed, for thou art the most powerful, the best master and the best helper. o god, drive away famine and distress, and disease, and iniquity, and oppression, and all calamities, and all evils outward and secret that may exist in our country especially and the countries of the mohammedans in general, for thou hast power over everything. our lord, forgive us and forgive our brothers who preceded us in the faith, and cast away from our hearts all jealousies and ill feeling toward the faithful. o god, our lord, thou art kind and gracious and generous and compassionate and able to forgive. this was written by the poor and humble pilgrim hajji abdu-l-baqi, who hopes for forgiveness from the forgiving lord and who was the son of twan hatib jawari, a native of sulug and follower of shafi'i and ash'ari. may god forgive them and all mohammedans and all the faithful. amen. the sulu friday oration in the name of god the compassionate and merciful. to god be all the praise and glory. there is no other god but god this i repeat a thousand times more than others. god is greater, far greater, than he is thought to be. i testify that there is no god but god alone. god is one, and only one. he has no partner. god is the owner of the heavens and the earth and all that is therein. god is owner of all. i testify that mohammed is his servant and his apostle, sent by him to guide all people to the true religion, and that his religion may thereby be exalted above all others, though the unfaithful and the worshipers of many gods may reject it. we ask thee, o god, to bless mohammed and all his descendants and bestow on them all the blessings that can be named and all the blessings that can be forgotten. i advise ye, o people, and myself, servants of god, with fear of god which is the sign of faith and god's command to us all. fellow-mohammedans, the mercy of god be upon you. friday is the chief of all days. the apostle of god said: "the day friday is the chief of all days." it is greater than the day of ramadan and the day of el-adha and the day of ashura. charity on friday is preferable to all charity. good deeds done on friday are preferable to all good deeds, and evil done on friday is the greatest evil that can be done. the noblest and best men have testified to its greatness over other days. it is the beauty of all days and years. it is a pilgrimage that the poor can make once every seven days. its observance intercedes for the offender before the king of unbounded knowledge. it has been told of the chosen prophet that he said: "god registers the name of the person who leaves out three successive fridays, on a tablet on which he keeps the number of liars." the prophet said that he who leaves out three successive fridays shall have written on his forehead when the day of judgment comes: "he has no hope of the mercy of god." may god bless us and give us all peace. may it be that god has declared us among the successful and the faithful and enlisted us into the number of his good servants. the best of all utterances and constitutions are in the word of god, king of unbounded knowledge, possessor of glory and of all reverence. it is god the highest who speaks and who is the truest of all speakers. when the quran is read you should listen attentively so that you may obtain mercy. he said, and his saying is most precious and full of wisdom, "when you read the quran ask god's help against the accursed satan." i take refuge in god the all hearing and all knowing from the accursed satan. oh, ye who have believed, when you hear the call for prayers on friday go ye to hear god's word. leave your business, for you have a greater good and benefit in this. may god bless the great quran for us, and may he benefit us through its texts and the wise mention of his name. may he reward us all with mercy from the painful punishment. i command you, and myself, with what god demands for good obedience so that you may obey him. and i prohibit you from doing evil and from disobedience as he prohibits you so that you may not disobey him. i pray for the plentiful reward of god for you and for myself, so that you may seek him; and i ask the pardon and forgiveness of god for you and for myself and for all the faithful mohammedans for he is gracious and forgiving. praise be to god. i praise and exalt god with all my strength and i testify that, there is no god but god. god is one and only one. god has no partner. he knows all and has good news for you all. i testify that mohammed is the servant of god and his apostle, and a shining light to the world. we ask thee, o god, to bless mohammed and his people and descendants because he is our preacher and warner. to ye, oh, people, i say, fear god, draw near to good, and depart from evil. god and all his angels bless the prophet. all ye believers bless him, too. ye servants of god, obey the call of god, and bless him who directed you to god. we ask thee, o god, to bless mohammed and the people of mohammed, for he directed us to paradise and to the roads that lead thereto. we ask thee, o god, to bless mohammed and the descendants of mohammed, because he warned us of the fire and its destruction. we ask thee, o god, to bless mohammed because he conquered the kings of the infidels and their empires. we ask thee, o god, to forgive his followers and his successors, abu bakar, omar, othman, ali, abi ubaydat, for they are the princes of the faithful and the best of all people. we ask thee, o god, to forgive his two sons, hasan and husein, and his two noble uncles, hamzat and abbas; and mayst thou be kind to all the emigrants and all the allies and followers till the judgment day, that we may share thy mercy with them and through them, for thou art most merciful. we ask thee, o god, to perpetuate the power, the victory, and the valor of those whom thou hast chosen for the good administration and good conduct of our religious and worldly affairs, chief among whom is he who begs the intercession of the faithful prophet, our master, the sultan and the pilgrim, mohammed jamalu-l-kiram, the brother of the late sultan, the pilgrim mohammed badaru-d-din the second, both of whom made the pilgrimage to the house al-haraam. may god give them a place with the faithful. they are the children of the late sultan mohammed jamalu-l-a'lam. may god perpetuate his kingdom and his power, and his justice and kindness. and may god forgive his predecessors and his grandfathers and be good to them and give them a place in paradise. we ask thee, o god, to be friendly with those who are friendly with him, and to antagonize them who are against him; give victory to those who aid him; reject those who reject him; vanquish those who disobey him, and be his help and helper and make him thy sword of vengeance against the offender. o god, my god, thou art truth and the lord of the universe. o god, set right our leaders and our nation, our judges, our rulers, our learned men, our lawgivers, our wise men, and our old men. aid them in righteousness, and guide us. o god, destroy the enemies of our religion and unite the hearts of the faithful. free the captives and pay the debts of the debtors. relieve the distressed and forgive the living and the dead. god grant peace and safety to us and to the pilgrims and to the travelers on land and on sea who are of the people of mohammed, for thou art the most powerful, the best master and the best helper. o god, drive away famine and distress, and disease and iniquity, and oppression, and all calamities, and all evils outward and secret that may exist in our country especially and in the countries of the mohammedans in general, for thou hast power over everything. our lord, forgive us and forgive our brothers who preceded us in the faith, and cast away from our hearts all jealousies and ill feeling toward the faithful. o god, our lord, thou art kind and gracious and generous and compassionate and able to forgive. notes [ ] throughout this paper foreign words which do not often appear in an english text are given the same form for both singular and plural. [ ] mindanao, magindanao, and a few other words with the same terminal sound are written in this paper with the final "ao" because they are well-known words. other words ending with the same sound are written with the final "aw," in accordance with the author's rules for transliteration.--[editor.] [ ] the word kabalalan means the place of the rattan, because the rattan plant used to grow abundantly on the mountain and its base. [ ] this word may be a corruption of the name of the bird rock or rokh, mentioned in the arabian nights. [ ] this word is a corruption of the arabic word thul-fakar, the name of the famous sword of the caliph ali. ali was a noted warrior. [ ] the translation here omits the formal words and repetitions and simply gives the names of the descendants in order. [ ] sarip and sharif are both in common use and have the same meaning. the latter is the arabic form of the word. [ ] it will be noticed both here and elsewhere that the genealogies are confused and that often it is not possible to make out in the text the descent of a given individual. in explanation of this confusion the translator says: "the moros do not know any better. this is the way they write. no attempt was made in the translation to change the order of the original text."--[editor.] [ ] it is not clear in moro who the parents were. these are chosen pursuant to the general rule that the pronoun refers to the nearest noun, unless otherwise indicated. [ ] the malay version said three people, but mentions only the above two, akmad and sapak. [ ] see pls. i-iv. this manuscript is purely magindanao in its style and is the oldest copy that i have seen. the main text is a little inferior to that of datu mastura's copy, but its marginal arabic quotations are more nearly correct and better written. the spelling and the grammar differ in many places, but the general sense of the text is mainly the same and does not warrant a separate translation. [ ] this copy is in the possession of the ethnological survey. it is not reproduced here because of the expense of half-tone work--the only satisfactory method of reproduction in this case. [ ] by a full uncle is meant a brother of one's father or mother who had both the same father and the same mother as one's own father or mother, as distinguished from a half uncle; so of a full aunt. [ ] these fines are stated in mexican currency. the peso was worth about cents, united states currency. [ ] the gajahilaw of siddip or piece of calico used is worth . pesos. it used to be the rule to demand the son of the abductor as bail for the return of the abducted free child or person. [ ] the words panglima and pandita are used in a plural sense in this paragraph. [ ] abduction and elopement are regarded as crimes by the sulus. the consent of the parents is always necessary for the marriage contract. [ ] dower is a provision for a widow on the death of the husband or on separation by divorce. it is generally paid or delivered or guaranteed before marriage. [ ] such slaves are generally killed by the authority against whom the offense was committed. [ ] the maharajah pahlawan form the highest grade of maharaja, their rank being next below that of a panglima. [ ] the term tuku-pipul, which is applied in sulu to all officers subordinate to panglima, means the small and large poles or pillars that support the house. [ ] a panglima pihaq is one of the regularly chosen panglima of the island of sulu. the island used to be divided into five main divisions for administrative purposes, each of which used to have one panglima intrusted with its rule. generously made available by the internet archive.) the lawyer in history, literature, and humour. edited by william andrews, f.r.h.s. "a welcome addition to the lighter literature of the law."--_the times._ "a considerable amount of historical and literary information."--_daily news._ "an entertaining work. it is rich in the lore and the humour of the law, and ought to be as interesting to the layman as to the lawyer."--_the globe._ "a handsome volume.... the work is printed and got up in a style that does credit to the well-known firm of publishers."--_chester courant._ [illustration: trial of a pig at lausanne in the fourteenth century.] legal lore: curiosities of law and lawyers edited by william andrews. london: william andrews & co., , farringdon avenue, e.c. . preface. the favourable reception given to my volume issued under the title of "the lawyer in history, literature, and humour," has induced me to prepare, on similar lines, the present book, dealing with curiosities of the law. i hope those who are interested in the study of the byways of literature may find entertainment and instruction in its pages, and that it will win a welcome not only from the legal profession, but from the reading public. i am enabled by the courtesy of messrs. chatto & windus, to reproduce for my frontispiece, an illustration from a work published by them, under the title of "credulities past and present." william andrews. the hull press, th december, . contents. page bible law. by s. burgess, m.a. sanctuaries. by william e. a. axon, f.r.s.l. trials in superstitious ages. by ernest h. rann on symbols. by george neilson law under the feudal system. by cuming walters the manor and manor law. by england howlett ancient tenures. by england howlett laws of the forest. by edward peacock, f.s.a. trial by jury in old times. by thomas frost barbarous punishments. by sidney w. clarke trials of animals. by thomas frost devices of the sixteenth century debtors. by james c. macdonald, f.s.a., scot. laws relating to the gipsies. by william e. a. axon, f.r.s.l. commonwealth law and lawyers. by edward peacock f.s.a. cock-fighting in scotland. cockieleerie law. by robert bird fatal links. by ernest h. rann post-mortem trials. by george neilson island laws. by cuming walters the little inns of court. obiter. by george neilson index legal lore. bible law. by s. burgess, m.a. at the very outset of any treatment of so delicate a subject as that indicated by the title of this chapter, we are met by no small difficulty. this consists in the danger of committing unintentional errors of irreverence, and thus offending the prejudices of those who are more or less pledged to their belief in the verbal inspiration of every bible chapter and verse. with this risk before us, we can only trust to our own sense of a rational view of a subject so full of capabilities of misconstruction. those of us who can remember the outburst of righteous indignation at the publication of the "essays and reviews" and of "ecce homo," feel surprise at the quiet indifference with which views expressed in them are now received. this does not at all, or necessarily, mean that men's faith is colder, or that the spirit of reverent religious feelings has died away. the advance of accurate scientific investigation may have upset the faith of some, and given a subject for outbursts of intolerant pulpit denunciations, but we must think that there are signs plainly discernible of a quiet acceptation of modern discovery by the majority of thoughtful and devout believers in the inspiration of holy scripture. these remarks will be found not unneedful as we pursue the examination of this particular branch of biblical study, namely, the law as it is found in the bible, and this will be seen at once when it is laid down as an absolutely necessary condition of our investigation that this same law can plainly be divided into two distinct portions--that which is of divine, and that which is of human origin. the bare statement of this fact will offend certain prejudices. the divine "fiat" stamps with as marvellous and undoubted clearness, certain portions, as other parts are marked by the progress of human intelligence, the needs of human society, and the force of the human will. the very fact of the existence of law entails the necessity of penalty, and this may be spiritual or corporal. the former depends on the acknowledgment of the rule over us of a superior being. the latter is a necessary accompaniment of all and every human life, believing or unbelieving. so in the bible law we can easily distinguish between the penalty affixed to the breaking of the first of the ten commandments, and that which followed on the breaking of the sixth. on the authority of hebrew scholars, we are told that the use of the hebrew article shows that _the law_ refers to the expressed will of god. if this rule be invariable, it would be of great value, and especially so in the use of the greek article. the writers of the psalms gave forth an intense reflection of the old law; always presuming, as they of course did, that it emanated from the deity. now let us be allowed to start with the assumption that the mosaic is the earliest form of tabulated law. a most excellent book has just been published, "the history of babylonia," by the society for promoting christian knowledge. it is a cheap little book, but full of information upon which one feels able to rely. we find there that the moral law of babylonia represents the spirit of bible law so accurately that it would be absurd to set up any theory of an independent basis. we must make a date somewhere, and therefore we cannot do better than choose a date that can be fairly tested, and safely on this side of mythical eras,--and that is about b.c. this must appear a very safe and modest date to fall back upon. the babylonians want us to go back , years, but to accept this assertion requires more faith than most of us possess. for our present purpose there is nothing gained by comparing the mosaic law with that discovered with such infinite care and learning in the babylonian records. the utmost that can be said is that we have startling coincidences, and an intensely interesting subject opened out. but there is no single grain of information, and that is what we are just now in search of. we feel quite distrustful of documents, especially _stone_ ones, which give the lifetime of alorus as extending to , years. that was before the deluge. the wandering jew sinks into insignificance, and is a mere puling infant by the side of such figures as these, because the son of alorus reigned for , years. however short the "year" was, the period of life was quite lengthy. if a year was our week, the last named patriarch was about , years old. this is a departure somewhat from the law as it is in our bibles. but it will be an interesting study for some kind student to compare that law with the echoes thereof found in asiatic literature, even far away on the eastern shores of china. the mystery still unsolved is, "_how did it get there?_" with the greatest diffidence we make the statement that the first notion of law was in connection with sacrifice. the time may come when this can be refuted. but at present, leaving out of the question natural and unwritten law, we find no bond but this. sacrifice comes to us as a law from a superior being. heathen nations have recognized the efficacy of sacrifice and offerings. man without law was an impossibility. no living thing can exist without some law. thus we look back to the first records of created living things for some law. science sheds a great, broad, and even scaring, light on the law prevailing over inanimate nature. the seas and the fields obey it. but for us to make a record of law as it made its beginning, is a task too great, and it is indeed then we feel that "fools may rush in" where better souls have had to languish in doubt. let us take the law in the bible as we can read it, and how few care to read it! there was a man once who had read the whole of the first five books through _twice_. thinking there might be something to gain from such abnormal study, we propounded a few questions on this very subject. the result was a senseless repetition of verses from leviticus. and yet, to tell the honest truth, there is very little left us to do but to _quote_. there is a little assistance we can give, and most thankful we are to have it in our power to do so. let us all the time remember that the bible law is the sole foundation of every law, human and divine, as far as we can discover. if it can be proved that the babylonian record with its , year old kings is to be relied on, then by all means let us accept it. we start with the sacrifice as the "_companion_" of the law. no one can feel hurt by this. it is no good to any of us to ask whether abel's sacrifice was according to revealed law or anterior to it. it is plain that sacrifice came to be the great medium of the law between man and the great prevailing law. with this allowed, all the rest is easier to grasp. the early law among the first people seemed to have no force but in its connection with some higher power. this power has been now deputed to earthly sources. the writers of the psalms represent to us a perfect intercourse with the deity. the question then arises, "on what grounds was this intercourse conducted?" the answer seems clearly to be on the conditions of the laws of sacrifice. now, by comparing the elaborate list of these contained in smith's "dictionary of the bible" with a very careful one in "notes on the hebrew psalms," by w. r. burgess ( ), we can make out a clear and very useful _resumé_. leaving out the great sin offerings for the _whole people_ and for the priests, we have the following sin offerings:-- . for any sin of ignorance. lev. iv. a most elaborate ceremonial of sacrifice and blood sprinkling. we should like to know when the "plea of ignorance" was done away with altogether, as we believe it has no force at all in modern law. . for refusal to bear witness on oath. lev. v. this is of very great interest in the light of recent legislation as to affirmation. we have come across many people, it is needless to add grossly ignorant, who have entirely lost sight of the obvious emphasis on the word "false" in the th commandment, placing the whole force on the fact of "witness." . the laws as to defilement. these, we presume, have left no trace on modern law. . the breach of a rash oath, the keeping of which would involve sin. lev. v., . this opens a most interesting subject, but we have not space to enter upon it. from the days of jephthah and his oath with regard to his daughter until this day, the question has been full of difficulties, and is divided amongst, perhaps, equal advocates for the two opposed views of it. . sacrilege in ignorance, fraud, _suppressio veri_, and perjury, were punished by enforced compensation, and the addition of a fifth part of the value concerned in the matter to the priest, or to the person wronged. . illtreatment of betrothed slaves. lev. xix., . this is only curious, but at the same time has a connection with late enactments in criminal law. . the law as to the powers of a father is extraordinary. when one considers the relation now existing and defined by our law, the revolution is beyond all measure out of reasonable proportion. for a curse, a blow, or even wilful disobedience, the penalty was _death_! . the law of usury is difficult, but the chief points are well known. the main principle of the law prevails to this day. let us only notice the striking fact that usury could not be exacted upon the jews themselves. does this not offer a fine comment on the grievous usury so cruelly enforced in after years by these people upon the _gentile_ races? . debt. all debts were released at the seventh year. so there was a year of limitation. . tithe. this law has been so frequently and ably set forth, that it is entirely one's own fault if it needs any comment. . poor laws. these are conspicuous by their absence. there was a legal right of gleanings, a second tithe to be given in charity, and wages were to be paid day by day. (deut. xxiv.) a few rather important forms of legislation must be placed here as addenda. we notice the entirely despotic power of the husband over the wife, and all belonging to her. compare _our_ useful but very late enactment as to married women's property, apart from her almost complete irresponsibility. the slander against a wife's virginity is punished by a fine only, but the fact of its truth, and therefore no longer a slander, is punished by the death of the woman. this is a most striking proof of the lower room in social judgment awarded to the female israelite. we notice also that the power of the master over his servant was absolute, but that the master suffered a penalty if his servant or slave died under castigation! ex. xxi. if he was maimed, he was by this fact allowed his freedom. the rule as to _hebrew_ slaves is very interesting. it is too long to be quoted here, but it can be easily mastered by a reference to ex. xxi., deut. xv., lev. xxv. we notice that there is no protection _legally_ allowed to _strangers_, and so we find kindness and protection enjoined as a sacred duty. we believe that the old list of "prohibited degrees," which we saw placed in churches in our infancy, and is still to be seen, is in all respects enforced by our present law. but we are not quite sure of this. we can only remember the vague sense of mystery underlying the clause, which was always put in the largest type:-- "a man may not marry his grandmother." another most interesting law must be carefully noticed, and if possible, more deeply studied. in cases of accidental homicide, there was mostly an "avenger of blood" to be looked for. to escape this untoward follower, cities of refuge or sanctuaries were named, and in these the poor wretch was safe until the death of the high priest. as to the legal penalty of adultery, are we quite sure that, according to results, we have greatly improved upon the old bible law? under this the punishment was _death_ of _both offenders_. was it the fear lest the population of the world should be so very seriously lessened that gradually brought this law to less than a penal one, so that at this day a royal "commission" is placed on the offence in the shape of the absolute freedom of the offenders to seek for _another opportunity_? just a few words more as to those who interpreted the law. these were the priests and the levites. the "judges," as we read of them in the book of that name, had, with the exception of samuel, mostly to do with the settlement of political disputes, and the leading out of the people to victory or defeat, as the case might be. but in later times the power of the sanhedrim was undoubtedly great. the king's power was legally limited. but so it is, and has been, in all ages and in all dominions _in theory_! yet we find rehoboam expelled by jereboam, and the latter as despotic as the former, just as we find a firm will in cromwell after the despotism of charles, in what had been then for centuries the most "constitutionally" governed country in the world! sanctuaries. by william e. a. axon, f.r.s.l. in all ages men have attributed a special sanctity to certain localities, usually those devoted to the purposes of worship, and this sentiment has in many lands been utilised in the interests of mercy by exempting those within the precincts from arrest for some, or even all, crimes and offences. in the earlier stages of development, the punishment of crime was not regarded as a duty of the community, but as an obligation, or privilege of the injured or of those nearest to him in blood or social relationship. thus the son of a murdered man had the right to murder the murderer. the general principle of the earlier forms of justice is the _lex talionis_, but the infliction of the penalty was mostly in the discretion of the avenger. he might be afraid to attempt to slay a strong or powerful homicide, and be willing to pardon the offence for a money consideration. a criminal who took refuge in a sacred place secured at least a breathing time in which his friends might effect a compromise with his adversary. greece had its famous _asyla_, but the custom of our own country was probably influenced from hebrew rather than classical sources. in the narrative of the death of joab, the hesitation of benaiah shows that it was unusual to slay one who had taken hold of the horns of the altar. the six cities of refuge were appointed as places of safety for involuntary homicides, where they were protected from the avenger of blood. amongst our anglo-saxon ancestors, the church exerted a moderating influence. every consecrated church had the right to shelter the fugitive from justice for seven days, and when the building was needed, he might be placed in a house provided for that purpose by the church, which was not to have more doors than the church itself. if the criminal was dragged forth from his refuge, the violators of the sanctuary were fined in varying degrees according to the rank of the ecclesiastical edifice. in addition to the inherent right of each church, special privileges were conferred on certain places by the exercise of the royal prerogative. in , it was decided that the property of fraudulent debtors who had taken sanctuary should be liable for the satisfaction of the claims of their creditors. in , pope innocent viii. issued a bull relating to english sanctuaries, by which it was provided that when the refugee left his asylum, he lost his right of protection, even though he subsequently returned to the sanctuary. at the same time, the king was empowered to appoint keepers to look after those who having been accused of treason, had taken sanctuary. great changes were made in the law during the reign of henry viii. traitors were wholly exempted from the privilege; those abjuring the realm were not actually banished, but were to remain throughout life in the sanctuary, and if they left it and committed any offence, they might then be brought to trial. all inmates were to wear a badge twenty inches in length and breadth, were forbidden the use of weapons, and were not to leave their lodgings between sunrise and sunset. in , the right of sanctuary was further restricted, and wells, manchester, northampton, york, derby, and launceston were declared sanctuaries. manchester found this privilege to be of such doubtful value that two years later it was transferred to chester, and afterwards to stafford. in the reign of james i., the right of sanctuary was abolished almost everywhere. the palatine counties had their special sanctuaries. in cheshire, hoole heath, overmarsh, and rudheath were such places of refuge. the abbey of vale royal had also a grant. but generally the county palatine of chester was a place of resort for those who had come into conflict with the law in other parts of the kingdom, and it was not until the reign of charles ii. that the king's writ ran in the palatinates and other privileged places. many privileged places in london, westminster, and southwark were brought within the regular jurisdiction in the reign of william iii. and george ii. we have an instructive picture of the working of the sanctuary system in the case of manchester. the act of hen. viii., c. , abolished the right of refuge in all places except, and the exception is a considerable one--churches, hospitals, and churchyards. perhaps a more important exception was that sanctuary was to be denied to those guilty of murder, rape, highway robbery, burglary, house-burning, or sacrilege. whilst abolishing many sanctuaries, certain additional places were named as cities of refuge for minor offenders. one of these was manchester. a year later the town petitioned to be relieved from this distinction. the inhabitants set forth that manchester had a great trade in the bleaching of linen yarn, and in the making of linen and woollen cloths and dressing of cotton, and that the influx of dissolute persons to the sanctuary had caused serious damage to the prospects of the town, which, having no mayor, sheriff, or bailiff, and no jail, was badly circumstanced for dealing with these lawless invaders. the request was granted, and the sanctuary removed from manchester to chester. but the city of the deva found it desirable to obtain relief, and a further removal was made to stafford. the fridstool at hexham still remains, although nearly everything else of the saxon foundation has perished. this "chair of peace" was the central point of the sanctuary, which extended a mile around. a durham example of the working of the law may be cited. "memorandum: that on the th day of the month of may, a.d. , one colson, of wolsyngham, durham, who had been detected in a theft, and therefore put and detained in gaol, at length contrived to escape, and fled to the cathedral church of durham, in order to avail himself of its immunities, and whilst he was there standing near the bier of st. cuthbert, prayed, that a coroner might be assigned to him. upon john raket, coroner of the ward of chester in strata (sic) coming to him, the same colson confessed the felony, making upon the spot the corporeal oath that he abjured the realm of england, and would withdraw from it as soon as he could conveniently, and would never return thither, and which oath he took at the bier of st. cuthbert in the presence of master george cornworth, sacristan of the cathedral church of durham; ralph bows, knight and sheriff of durham; john raket (the coroner); robert thrylkett, deputy sheriff; hugh holand, and nicholas dixson, and of many others; by reason of which renunciation and oath all the dress of the said colson belonged to the said sacristan and his office; wherefore the said colston was enjoined to take off to his shirt all his garments, and deliver them to the aforesaid sacristan, and he did so, placing them all into his possession, the sacristan gave up and delivered to him again, gratuitously, all his dress that he had up to this occasion been clothed in; and after that colstone withdrew from the church, and was handed over to the nearest constable by the aforesaid sheriff, and so on from constables to constables, holding a white cross made of wood as a fugitive, and so he was to be conducted to the nearest seaport to take vessel as one never to return. this was done on the day, month, and year aforesaid."[ ] the system was one that led to gross abuse. it was held that the right did not extend to others than those whose offences entailed forfeiture of life and limb, but in practice knavish debtors, fraudulent executors, etc., availed themselves of the protection. there was plenty of scope for dispute as to jurisdiction. in , the abbot of beaulieu was required to give proof of his right to shelter william wawe, who is described as a heretic, traitor, common highwayman and public robber. "wille wawe was hanged," is the sum of the matter as recorded by stowe. between and , at durham, persons took refuge who were, as principals or accessories, accused of homicide. there were sixteen debtors, four horse-stealers, nine cattle-stealers, and four house-breakers. one had been charged with rape, and seven with theft. one had been backward in his accounts, one had harboured a thief, and one had failed to prosecute. sir john holland, in revenge for the death of his esquire, killed the son and heir of hugh, second earl of stafford, and then took sanctuary at beverley. the murderer, in this case, was the half-brother of richard ii., but it was with great difficulty that the king was induced to grant a pardon. the church of st. john of beverley had a charter from athelstan, and near the altar was the fridstool, or chair of peace, "to which what criminal soever flies hath full protection." the privilege extended for a radius of about a mile round the minster, and the limits were marked by stone crosses. infraction of the right of sanctuary was punishable by severe penalties, and to take a refugee from the fridstool was to incur both secular and ecclesiastical penalties, the latter extending to excommunication.[ ] the widow of edward iv. fled with her younger children for safety to the sanctuary of westminster after her eldest son had fallen into the keeping of the duke of gloucester. sir thomas more reports the discussion in the council of the protector, and the arguments used by cardinal bourchier, which induced the queen to give up the duke of york. the boy king, who was never crowned, and his brother were murdered in the tower. it is noteworthy that this unfortunate monarch was born in the sanctuary of westminster when his father was in exile. skelton, the poet, died in this same sanctuary. the privileges of the sanctuary were not always respected. when geoffrey, archbishop of york, took refuge in st. martin's priory, dover, he was dragged from the altar in his pontifical robes by order of the bishop of ely, who was then chancellor of the kingdom. but this arbitrary proceeding was not the least of the causes of the downfall of william of longchamp. when william longbeard, who had been condemned to death, took sanctuary at st. mary-le-bow, hubert de burgh ordered the church tower to be set on fire to compel him to come forth. longbeard abandoned his place of refuge, and was dragged to tyburn, and there hanged. but although de burgh was archbishop of canterbury and justiciary of the kingdom, and the church was his own peculiar, his violation of sanctuary led to the loss of his great secular dignity. later, when he had himself to seek refuge, a great debate arose as to his having been forcibly taken from a sanctuary, and he was restored to its protection, and escaped to wales. whilst the same rights of sanctuary existed in ireland and in wales, they were apparently not made use of to any great extent. in scotland, the churches of wedale, near galashiels, and of lesmahagow, near lanark, were the most famous of the religious sanctuaries. the latter had also a royal charter from david i. these sanctuaries ended with the reformation. the abbey of holyrood and its precincts, which include arthur's seat and the queen's park, gave protection to debtors until, by the abolition of imprisonment for debt, its privileges ceased to have any meaning. one of those who thus sought refuge at holyrood during a part of his career was thomas de quincey. sanctuaries probably served a useful purpose in ages when the law was harsh and indiscriminate in its punishment of offenders. the limited protection afforded by the church sanctuaries at least gave an opportunity for the first heat of revengeful feeling to subside, and the greater sanctuaries protected not merely vulgar offenders, but those whom the stormy tide of politics had placed at the mercy of their enemies. as the law became stronger, and the course of justice more certain, the need for these refuges ended, and those that continued were public nuisances, and mere centres of crime and anarchy, such as scott has described for us in his picture of alsatia. we may be thankful that sanctuaries are now merely objects of antiquarian interest and speculation. trials in superstitious ages. by ernest h. rann. in superstitious ages, when belief in the power of the law to adjust all quarrels, to hold the balance equally between man and man, and to accord to each one his rights, was less prevalent than it is at the present day, disputants naturally resorted to other tribunals for the settlement of their claims. a perfect system of law was impossible; what law existed was arbitrarily administered, often for the benefit of the most powerful litigant, and the claimant with only justice on his side often had the mortification of seeing a verdict given against him. during the development of a system of law-giving, when the accumulated experience of humanity had not sufficed to produce perfection, man in his darkness, his ignorance, and superstition, turned to the supernatural, and devised certain ceremonies by which the judgment of god might be evoked to demonstrate the guilt or innocence of the accused. the antiquity of the ordeal, as it was called, cannot be measured. such a form of trial is found to have existed in the earliest ages, and even now traces of it linger among savage tribes of the earth. in africa especially the ordeal is well known. during his travels among the negro tribes north of the zambesi, dr. livingstone encountered the curious practice of the "mauvi," which consisted of making all the women of a tribe drink an infusion of "goho," for the purpose of ascertaining which of them had bewitched a particular man. the accused women were drawn up in a row before the hut of the king, and the draught administered to them. those who were unable to retain the horrible decoction, and vomited, were considered innocent of the charge: those who were purged were adjudged guilty, and put to death by burning. the calabar bean is also used by the natives of africa in the form of an emulsion as an ordeal for persons accused of witchcraft, proof of innocence consisting of ability to throw off the poison by vomiting. among the barotse tribes the process is conducted by deputy, the testing liquid being poured down the throat of a dog or cat, and the accused person being treated according to the effect produced on the animal. among the dyak tribes lumps of salt are thrown into a bowl of water by the accuser and accused, and judgment is given against the owner whose lump disappears first. another method adopted by the dyaks is for each of the two parties to choose a mollusc, and to squeeze over it a few drops of lime-juice; the owner of the mollusc which moves first under the acid stimulant losing the case. ratzel mentions that among the malay tribes ordeals by fire, ducking, pulling a ring out of boiling water, or licking red-hot iron, are still frequent. where the ordeal fails to produce the desired result, wager of battel, in reality another form of ordeal, is resorted to. among the tagals it is usual to light a consecrated candle, and to consider the person guilty of the crime under consideration to whom the candle flame is blown during the performance of the ceremony. the igorrotes have a more painful method of fixing guilt. the accuser and the accused are placed together; the backs of their heads are scratched with a sharply-pointed bamboo stick, and the man who loses most blood also loses his case. in hawaii ordeals are administered by the priests, the suspected person being compelled to hold his hands over consecrated water, and adjudged guilty if the liquid trembles in the vessel while the priest looks at him. the siamese have a form of ordeal which consists of making the two parties to a suit swallow consecrated purgative pills, the man who retains them for the greater length of time winning the case. even among the comparatively enlightened races of the peninsula of india, ordeals of the most elaborate and curious character are practised at the present time. warren hastings mentions that in his day no fewer than nine forms were in use among the hindoos. the ordeal of the balance was commonly employed, and is still in force in certain districts. the beam is adjusted, and both scales made perfectly even. after the accused has been bathed in sacred water, and the deities worshipped, he is placed in the scale-pan and carefully weighed. when he is taken out the pandits pronounce an incantation, and place round his head a piece of paper setting forth the charge against him. six minutes later he again enters the scale, and the balance is called upon to show his fault or innocence. if he weigh more than before, he is held guilty; if less, innocent; if exactly the same, he must be weighed a third time, when, according to the _mitácsherá_, a difference in his weight will be observable. should the balance break down, the mishap would be considered as proof of the man's guilt. the ordeal of the balance is not altogether unknown in english history, for an incident is recorded in which susannah haynokes, of aylesbury, was accused of bewitching her neighbour's spinning-wheel, and preventing it from working properly. susannah loudly protested her innocence, and demanded an ordeal to prove it. she was taken to the church, and weighed in a semi-nude condition against a copy of the bible, and being able to outweigh the scriptures, was considered to be innocent of the offence charged against her. possibly it never occurred to the owner of the spinning-wheel that lack of oil was the cause of its refusal to go round. among other ordeals in use by the hindoos is that of iron, the accused being required to lick a red-hot bar of the metal. if his tongue be burnt, he is considered guilty, if not, he is reckoned innocent, but it cannot be supposed that among tribes addicted to this practice the injury to the tongue is considered sufficient punishment for the offence with which the suspect is charged. the poison ordeal, employed also, it may be noted, by the hovas of madagascar, is commonly practised. a small quantity of _vishanága_, a poisonous root, is mixed with clarified butter, which the accused must eat from the hand of a brahman. if the poison produce no visible effect, he is absolved; otherwise, condemned. in other cases the hooded snake called _nága_ is placed in a deep earthen pot, from which the accused has to take a ring, seal, or coin without being bitten, when he is considered innocent. in trial by the cósha the accused is made to drink three draughts of water in which images of the sun, of dévì, and other deities have been washed. if, within fourteen days, he is afflicted with any form of sickness, he is considered guilty. for the fire ordeal an excavation is made in the ground, and filled with burning pippal wood. into this a person must walk bare-footed without hurt in order to prove his innocence. hot oil ordeals are also in force, when the accused has to thrust his hand into the liquid without being burned; and chewing a grain of consecrated rice, which, if it comes from the man's mouth dry or stained with blood, is considered proof of his guilt. at other times a silver image of the genius of justice, called _dharma_, is thrown with an image of iron or clay, called _adharma_, into an earthen jar; and the accused is acquitted if he bring out the silver image, but condemned if he draw forth the iron. the history of the middle ages furnishes numerous examples of ordeals employed in the settlement of disputes, which in the absence of a strong and impartial system of law-giving, found great favour with the people of all ranks. they were peculiarly distinguished by the appellation of _judicium dei_, or judgments of god, and sometimes called _vulgaris purgatio_. the law of the church sanctioned the ordeal throughout europe for a considerable period, and faculties were freely given by the clergy for the performance of these strange ceremonials. indeed, the whole business, as a judgment of god, was frequently conducted by the servants of the church, always in consecrated ground, and the sacred edifice itself was occasionally requisitioned in order to add greater solemnity to the proceedings. the ordeal of fire, practised, curiously enough, by the greeks in the time of sophocles, was allowed only to persons of high rank. the accused was required to carry a piece of red-hot iron for some distance in his hand, or to walk nine feet, bare-footed and blind-fold, over red-hot ploughshares. the hands or feet were then immediately bound up, and inspected three days afterwards. if, on examination, no injury was visible, the accused was considered innocent; if traces of the burning remained, he was reckoned guilty, and received punishment commensurate with his offence, without any discount for the harm he had already suffered. the most notable historic instance of this form of ordeal is that of queen emma, mother of edward the confessor. she was accused of a criminal intrigue with alwyn, bishop of winchester, and condemned to the ordeal of fire, which, on this particular occasion, took the form of nine red-hot ploughshares, laid lengthwise at irregular intervals, over which she was required to walk with bandaged eyes. she passed successfully through the severe trial, and at the conclusion innocently asked when the ordeal was about to begin. the queen's innocence was, to the popular mind, established more substantially than would have been possible in any existing court of law. she was not the only gainer by the restoration of her reputation, for in consideration of the success which had attended her, she settled twenty-one manors on the bishopric and church of winchester. in the eastern empire the fire ordeal was largely used by the emperor theodore lascoris for the discovery of the origin of the sickness with which he was afflicted. his majesty attributed the malady to magic, and all suspected persons were required to handle red-hot iron in order to establish their guilt or innocence, "thus joining," as an ancient scribe exclaims, "to the most dubious crime in the world the most dubious proof of innocence." fire, as we have said, was employed for persons of high rank: those of baser degree, especially bondsmen and rustics, were tried by the ordeal of boiling water. "i will go through fire and water for my friend" was a common expression in the middle ages, and, though having lost its original significance, the saying has persisted to the present time as a declaration of self-sacrifice. the accused person was required to take a stone from a pan of boiling water, to insert the hand and wrist into the liquid, and in case of the triple ordeal, to plunge the arm in up to the elbow. when cold water was employed, and in cases of witchcraft this was generally resorted to, the suspect was flung into a river or pond. if he floated without appearance of swimming, he was pronounced innocent; if he sank, he was condemned as guilty--rather a superfluous proceeding, considering that the man was in all probability already drowned. it would be going too far to assert that in all cases these ordeals were carried out with the strictest impartiality and consideration for the ends of justice. means were not unknown to circumvent the peculiar forms of the trial, and precautions were often taken by the clergy, as might have been done in the case of queen emma, to protect those whom they desired to clear of suspicion. it is a well-known fact that white-hot iron may be licked with impunity, and the mevleheh dervishes are proficient in the trick of holding red-hot iron between their teeth. sometimes cold iron, painted red, was employed, and at others the fire reduced in temperature at the critical moment, the suspect receiving only such injury as would heal in the three days allowed before his hand was examined. artificial preparations were frequently employed, while the suspect had at times the option of going alone into the church, and in all cases of keeping the crowd of spectators at a distance, which made minute inspection of the proceedings impossible. another form of ordeal was the _judicium crucis_, or trial of the cross, employed largely in criminal cases. when an accused person had declared his innocence on oath, and appealed to the judgment of the cross, two sticks were prepared precisely like one another. the figure of the cross was cut upon one of these sticks, and the other left blank. each of them was wrapped in fine white wool, and laid upon the altar or the relics of the saints, after which a prayer was uttered that god might discover by unmistakable signs whether the prisoner was innocent or guilty. the priest then approached the altar, took up one of the sticks, and uncovered it. if it happened to be the stick marked with the cross, the prisoner was pronounced innocent; if it were the other, he was condemned as guilty. a different form of this ordeal was adopted when the judgment of the cross was invoked in civil cases. the judges and all parties to the suit assembled in the church. representatives, generally the youngest and strongest priests, were then chosen, and required to stand one on each side of a crucifix. at a given signal they stretched out their arms at full length, so as to form a cross with their body, and in this painful posture they continued to stand during divine service. the party whose representative dropped his arms first, or shifted his position, lost his cause. history records a dispute over a monastery, between the bishop of paris and the abbot of st. denis, which was settled in this manner. a crowd assembled, and arranged bets on the result, but those who supported the bishop's man were sadly disappointed, for he dropped his arms at an early stage, and lost the cause of his employer. the ordeal of the cross was abolished by louis de debonnaire in , on the ground that it was irreverent in character. ecclesiasticism also played a prominent part in the ordeal of the corsnedd, to which persons accused of robbery had to submit. the corsnedd was a piece of bread made of unleavened barley, to which cheese made of ewe's milk in the month of may was added. over the whole, one ounce in weight, a form of exorcism was uttered, desiring of the almighty that the corsnedd might cause convulsions and paleness, and find no passage, if the man were really guilty, but might turn to health and nourishment if he were innocent. the practice is strongly remindful of the trial of jealousy in use among the israelites, by which an unfaithful woman was compelled to drink holy water containing dust of the floor of the tabernacle, the belief being that she would be stricken with illness if she were guilty. the corsnedd was given to the suspected person, who at the same time read the sacrament. godwin, earl of kent, was, in the reign of edward the confessor, accused of murder, and forced to the ordeal of the corsnedd, when, according to ancient chroniclers, the consecrated food stuck in his throat, and caused his death. both the expressions, "i will take the sacrament upon it," and "may this morsel be my last," are supposed to have been derived from this curious form of law-giving. a somewhat similar custom is in vogue in russia at the present day. balls of bread are made and dropped into consecrated water, the priest meanwhile reciting the formula:--"ivan ivanoff, if you are guilty, as this ball falls to the bottom, so your soul will fall into hell." as a rule the culprit confesses immediately. in ceylon, also, a similar form of ordeal is by no means unusual. a man suspected of theft is required to bring the person he holds in greatest affection before the judge, and placing a heavy stone on the head of his substitute, say, "may this stone crush thee to death if i am guilty of the offence." the tartar sets a wild bear and a hatchet before the tribunal, saying as he does so, "may the bear devour me, and the hatchet chop off my head, if i am guilty of the crime laid to my charge." another form of ordeal which was cherished and practised with assiduity was that of the bier, founded on the belief that the body of a murdered man would show signs, by bleeding or movement, when his assassin approached. the accused had to place his hand on the naked breast of the corpse, and declare his innocence, though the slightest change in the body was considered proof of his guiltiness. this method of finding out murderers had its origin, it is believed, in denmark, where it was in the first instance adopted by king christian ii. for the discovery of the murderer of one of his courtly followers. the belief has survived to a certain extent to the present day, for even english peasants still expect all persons present at a funeral to touch the body in proof of their bearing no ill-will towards the dead man. not so frequently employed, but still occasionally met with in ancient history, was the ordeal of compurgation, where the innocence of the accused was sworn to by his friends, and judgment went against the party whose kindred refused to come forward, or who failed to provide the necessary number of compurgators. it was a conflict of numerical strength, and the higher number carried the day. another custom, still surviving, was to tie a key in a bible opened at psalm l, verse , "when thou sawest a thief, then thou consentedst with him," and balance the whole, the belief being that the book would turn in the hands of a guilty person. challenging the accuser to mortal combat was a proceeding which found much favour with the warlike spirit of the middle ages. of course it was considered that providence would defend the right, even if a miracle were needful, but nevertheless each party placed considerable reliance on his own strength of arm and fighting skill. these judicial combats were in ancient times practised among the jews, and were also common in germany in remote ages, though they do not find mention in anglo-saxon laws, and were apparently not in use in england until after the norman conquest. in germany a bier was placed in the midst of the lists, accuser and accused stood respectively at the head and foot, and remained for some minutes in profound silence before they commenced fighting. civil, criminal, and military cases were, in the absence of sufficient direct evidence, decided by means of the judicial combat or wager of battel. the offended party had the right to challenge his accuser to settle the dispute by force of arms, and the forms and ceremonies connected with the trial are well illustrated in the opening scenes of "king richard ii." the combat took place in the presence of the court itself, heaven being expected to give the victory to the innocent or injured party. it was commonly resorted to in charges of treason, as in the above-mentioned dispute between henry bolingbroke and thomas mowbray, when the ceremonies were of an imposing character. as in the majority of ordeals, deputies could be chosen to perform the requisite duties, but the principals were in all cases answerable for the consequences. no commoner was allowed to challenge a peer of the realm, nor could the citizens of london, for some obscure reason, indulge in these popular forms of legal administration. each of the combatants professed his willingness to make good his claims, body for body-- "for what i speak my body shall make good upon this earth, or my divine soul answer it in heaven." neither sorcery nor witchcraft had to be employed, and the battel was to continue until the shades of evening had fallen, and the stars appeared. if the accused were killed, his blood was attainted, but if he were only vanquished, he was immediately condemned to an ignominious death by hanging, providing he accepted his fate without demur. the defeated party, however, might crave his life, in which case he was allowed to live as a recreant, on condition that he retracted unreservedly the false statements that he had sworn. at the durham assizes, on august , , a wager of battel was offered and accepted, for deciding the rights to land at thickley, between ralph claxton, demandant, and richard lilburne, tenant. according to an old chronicle, "the defendant appeared at o'clock in the forenoon, by his attorney, and brought in his champion, george cheney, in full array, with his stave and sandbag, who threw down his gauntlet on the floor of the court, with five small pieces of coin in it. the tenant then introduced his champion, william peverell, armed in the same manner, who also threw down his gage." but the champions, instead of being allowed to fight, were ordered to appear at the court of pleas in the following month. legal arguments followed, and the trial by battel was eventually postponed indefinitely. in criminal trials no deputies were allowed, and the parties were compelled to settle their quarrel in person, unless one of them was a woman, an infant, or a man over the age of sixty, or was afflicted with lameness or blindness. in the case of any of these disqualifications, trial by jury could be claimed and insisted upon. one of the most remarkable wagers of battel occurred in . a young woman named mary ashford, living at erdington, near birmingham, was supposed to have been murdered early one morning when returning from a dance. suspicion fell on abraham thornton, a partner of the previous night, who was tried for the crime and acquitted. evidence for another trial was collected, and thornton was _appealed_ by william ashford, the direct heir male of the murdered woman. but when the proceedings commenced, thornton's counsel took refuge under a very old act, by which no man could be tried on a second charge of murder, on which he had been acquitted, except by wager of battel before the king, between the heir-at-law of the person murdered and the accused. the appellant, mary ashford's brother, declined the combat on the ground of physical inferiority, and thornton was discharged. immediately afterwards the antiquated law was removed from the statute book. this marked the end of trials by ordeal as recognised by law. the process of extermination had long been in progress, but popular opinion was against reform, and certain of these curious customs survived. although the clergy had at first taken part in these ceremonials, and presided over them in church, they came in time to discountenance them. the canon law declared against ordeals as being the work of the devil, and a decree to this effect was issued in the eighteenth canon of the fourth lateran council in november, . upon this authority it was thought proper, says blackstone (as had been done in denmark a century ago), "to disuse and abolish these trials entirely in our courts of justice by an act of parliament, henry iii., according to sir edward coke, or rather by an order of the king in council." the actual date of the abolition of ordeals by fire and water was . on the continent these forms of trial had been abolished by civil and ecclesiastical law much earlier, although in an attempt was made to test the doctrine of savonarola by means of a challenge from one of his disciples to a franciscan friar to walk through a pile of burning wood. old customs die hard, and the incident is a curious and interesting instance of the persistence of a popular form of trial even among the members of a party by which it had been condemned. on symbols. by george neilson. the wayward fancies of mankind are well illustrated in the diversity of symbolic observances, some never losing their meaning, some absolutely unintelligible in their historic form, and some as much characterised by a befitting dignity, as others are by the want of it. all once were self-explanatory and possessed a measure of propriety proportioned to the state of the people amidst whom they originated. but tradition is long, centuries elapse, each modifying a ceremony, and when the procedure emerges within the knowledge of record, it has often so lost touch with its surroundings, that it is hopeless to speculate how it arose. symbols are drawn from and applied to every field of human activity. of course in a general sense man expresses himself only so, and a regular alphabet is but a comparatively trifling advance on the language of signs. what we call civilization, is at bottom little more than a clear recognition of certain symbols of government. the queen's crown, the judge's ermine, the mayor's mace, what are they else? the sceptre is only a glorified stick, of which the policeman's baton is a humbler shape. each embodies the great thought that behind it stands a nation's determination to be ruled by law. in the history of law, symbol and the traces of symbol meet us at every turn. the middle ages teemed with them. roman law had bequeathed not a few. perhaps the most wondrous of them all is one that has long ceased to have any legal connection, although its mark is all-powerful over civilisation. how daring was the imagination which prompted the choice, for the heraldic badge of christianity, of the dread emblem of capital punishment by crucifixion! in the pure domain of the law of the early and middle ages, a perfect wilderness of symbols presents itself to eyes which strive to explore the origins of institutions. law is ever beset by a tendency towards formalism, and in early times a severe insistence upon ceremony, no doubt, gave prominence and prescriptive sanction to symbolic acts. law and custom after all only mean that the way things were done yesterday is the safest way of doing them to-day. the acceptance of a common form implies a very large public consent, which is equally necessary to its abrogation, once it is accepted. no small part of its value lies in its certainty, "certainty which," coke well says, "is the mother of quiet and repose." hence the fixity and longevity of many emblematic methods of performing acts affecting status or property rights. the constitution or discharge of slavery, or the transfer of a slave from one master to another, had a variety of set forms. a freeman might deliver himself to serfage by putting a leathern thong upon his neck. when a church was the donee, the ceremony might take place at the altar, and the man present himself there with cords round his throat. "thus he offered himself," says an old record, "to the almighty lord." a coin or two on the head was also a customary part of the process. in the manumission or liberation of the slave, these coins struck off the head served the purpose of declaring him free, as did the companion symbol of open doors, or the placing him at four cross roads, and bidding him go whither he would. another common symbol of enfranchisement was the delivery of an arrow, thought to denote the right confined to freemen of bearing arms. even a short account of legal symbols would make a very large treatise. single instances such as the ring, the staff, the glove, and the horn would each furnish material for an elaborate monograph. the theme would call for a discussion of the great war of investitures, and would touch very many points of ecclesiastical, civil, and criminal law and history. the scope of the present unambitious article is only directed to a few illustrations in relation to the transfer of land, the act of divesting the old proprietor and clothing the new with his rights. although such symbols usually had a connexion with the subject conveyed, there are many types in which that connexion is not readily traceable. why for example amongst the saxons should a resignation of all interest in an estate have been made by a gesture with curved fingers? one can understand why a sod should be so often a token, but why does the glove play so large a part in merovingian and carolingian conveyancing? was it, indeed, as german scholars speculate, because the donor metaphorically took it off and the donee put it on, making his the covered hand, the _vestita manus_, that would defend the land conveyed? how came an eleventh century magnate to attest his renunciation of justiciary rights to a monastery "by cutting off the top of the silk band by which his fur robes were fastened to his breast, and with that segment re-investing three monks therein?" in this case a portion of that silken band was carefully sewn up, as an adminicle of evidence, in the writ recording the transaction. how again came it that a claim of feudal service might be departed from by the delivery and placing of a wand (_virgula_) upon the altar? all these are much more personal symbols than real. they are mainly guarantees of the grantor's good faith. they do not seem to be primarily emblems of possession. the contrast between these two classes will be best appreciated by considering types of the latter. when a purchaser proceeded to set up fresh boundary marks, or to take a spade and dig, or when he received delivery of a sod with grass or shrubbery upon it, or lifted from the ground the charter granted by the seller with amongst other things a sod laid thereon, the act of seisin, the formal occupation is visibly completed. of this class of symbol, the sod (_cespes_) is probably the best and most typical for a few words of illustration. we read of litigants laying judicial claim to land in the mall or public court by putting their spears into a sod, representative of the subject in dispute. we hear of the sods being cut in the shape of bricks, and of their being preserved as memorials, with the twigs growing in and incorporated with them. we hear of sods offered on the altar when the grant of land was being made to a church. we hear of transfer from one vassal to another being accomplished by the grantor delivering the sod to the over-lord, and the latter passing it on to the grantee. of all the symbols employed in connection with feoffments, however, the rod (_festuca_) had the widest vogue on the continent. not that it was restricted to transactions in land; it was a more or less lineal descendant of the roman stipulation, a contract visibly expressed by the parties breaking a straw between them. under charlemagne a renunciation by certain priests was made by them "holding straws in their hands and casting them from them before god and his angels." later this appears as a recognised method of renunciation, but with a rod substituted for the straw. in some cases the fact of renunciation is emphasised by the rod being not only thrown to the ground by the resigner, but trodden under foot when there. the rôle of the _festuca_ was peculiarly important amongst the frankish peoples.[ ] galbert of bruges, a flemish twelfth century historian, states that the counts of flanders gave investitures to their vassals, after receiving their fealty and homage, by a wand (_virgula_) held in hand, and he has a dramatic passage describing how the people of bruges, in token of their renunciation of their feudal bond to hacket the castellan, "picking up bits of stick exfestucated their homage and fealty," _i.e._ cast the rods from them, and so doing severed all connexion with their former chief. in england and in scotland, this rod symbol (_fustis et baculus_) also played a large part. bracton referred it specially to land without houses. tenure by the verge, a species of copyhold, had its name, we learn from littleton, from _un petite verge_, delivered by the old tenant to the steward or bailiff of the manor, who re-delivered it to the new holder. jordan fantosme tells us that when brien, messenger of ranulf glanvil, in , announced in westminster the capture of the scottish king at alnwick, henry ii. rewarded him for his good news by handing him a stick (_bastuncel_), which vested him in ten librates of land. in scotland the feudal resignation by a vassal to his overlord for the re-investure of a fresh owner was effected by "staff and baton" (_fustis et baculus_), and references to those symbols occurred in every day conveyancing until far into the present century. indeed this picturesque ritual was, strictly speaking, not abrogated, although made unnecessary, by the act and victoria ch. . the commonest conveyancing symbol for land in england was the formal delivery of turf or twig of the ground conveyed, made by a representative of the grantor, to a representative of the grantee. the most familiar in scotland was the handing over of "earth and stone." this latter was the normal form of seisin, and its history goes far back, not only in scotland, but on the continent as well. a curious saxon legend attests this. widukind narrates that some saxons, having landed from their ships in thuringia, one of them, wearing a golden torque and bracelets, met a thuringian, who asked if he would sell his ornaments. the sly saxon entered into an odd transaction; the thuringian gave him in exchange for his gold, a lapful of soil. the thuringians rejoiced exceedingly over the smart bargain their countryman had made, but changed their tune when soon afterwards the saxons claimed the land as theirs, purchased with their own gold, and by force of arms made good the demand. our chronicles have a good many stories about symbols. in the norman _brevis relatio_, a sketch of the origin of william the conqueror, is told of his grandfather, duke richard the good, that once when staying at a monastery, after prayer in the morning he laid a spindle on the altar. upon being asked what it meant, he named the manor which he had by so homely a symbol bestowed for the good of his soul. when the infant william came into the world, it was said,--and afterwards noted as prophetic--that when they laid him down upon some straw, the little hands each clutched a handful. acquisitive tendencies were foreshadowed! the _roman de rou_ tells that in , when william landed in england, he stumbled and fell, an omen which for the moment disconcerted his followers, but rising with a shout, he swore by the splendour of god that with his two hands he had taken possession of the land. prompt to catch the occasion, one of his men ran forward to a cottage, tore a handful of thatch from the roof, and passed it to his chief, with the cry, "receive this seisin,"--quasi-ceremonial words which with william's pious, "god be with me," the curious may compare with the formalities of english livery in deed, as described (sec. ), in coke upon littleton. the normal symbol of seisin for a house in england, was (before the act and victoria ch., , superseded these archaic ceremonies), was the ring or hasp of the door, known in scotland for houses in burghs as "hasp and staple." in the latter country also, there were a good many special types of symbol characteristically appropriate to seisin in special kinds of property. thus for mills "clap and hopper," for fishings "net and coble," for teinds (anglice tithes) a sheaf of corn, for the patronage or advowson of a church a psalm-book and keys, attained the figurative purpose requisite. there were many others less familiar amongst them, one, a hat, worthy of a few words all to itself. our own generation may not regard this as a particularly dignified symbol, but there is a cloud of witnesses to shew its very various applicability. the priest's cap or biretta was sometimes employed to instal him in a chaplainry or benefice. and apart from the place of the hat in the regulations of the tilting ring, it was occasionally used in scotland as a symbol in connection with what were known as heirship goods. but it had in the twelfth century been accorded the very loftiest use to which secular symbolism could be turned. in , king william the lion, taken prisoner the year before, relinquished the independence of scotland, and did homage to the english king at york, as a condition of his liberation. the contemporary records are silent regarding symbolic details, but in edward i. stated in his letter to the pope that "in token of his fealty, william the king of scotland, had, on the altar of st. peter's, at york, offered his cap (_chappelus_), lance, and saddle, which until this day remain and are preserved in said church." any incredulity which a fair-minded scot can entertain, regarding this allegation that the freedom of his country was once symbolically surrendered in king william's cap, will be materially lessened, and scottish patriotism so far consoled, by the recollection that under very similar circumstances the realm of england was in given away with the bonnet (_pilleus_) of the captive richard i., who, thus (as hoveden tells us), gave investiture of his kingdom to his arch-enemy, the emperor henry vi. this was, however, only formal: the emperor at once re-invested king richard in his realm with a double crown of gold, though subject to an annual tribute of £ , --a business transaction painfully illustrative of the christian chivalry of the crusades. the annals of scotland boast one instance of a royal symbol much more regal than either of these two. about the beginning of the year , king alexander i., restoring by charter to the bishopric of st. andrews an extensive tract of land, completed the grant according to andrew of wyntoun (vii., ), in a truly stately fashion. he-- gert than to the awtare bryng hys cumly sted off araby sadelyd and brydelyd costlykly coveryd with a fayre mantlete off precyous and fyne welvet wyth his armwris off turky that pryncys than oysid generaly and chesyd mast for thare delyte wyth scheld and spere off sylvyr qwhyt. it was a special occasion, for bishop robert's appointment, which had led to the grant, was a scottish victory over the pretensions of the see of york. there is an appeal to the imagination so strong in the scene, that, in spite of the interval of years betwixt the event and this oldest record of it, one is slow to offer any criticism on the charger; more especially as the entire verity of the silver spear is corroborated by walter bower's enshrining in his scotichronicon the fact that in the fifteenth century it was doing duty as the shaft of the cross in the cathedral. yet the unexampled symbol, coupled with the analogy from york in , compels the suggestion, that perhaps during these years an original _capellus_ have been mis-read as _caballus_, or mistaken for scottish _capul_, and thus by the magic of mistranslation, a king's cap _may_ have been transmuted into an arab steed. whilst of course a crown was the standard symbol of investiture for a kingdom, inferior rights of principality were often typified by other things, such as a sword, a spear, or a banner. and as feudal forms were observed in the bestowal, so were they sometimes in the taking away. england dispensed with several of her monarchs, but apparently in no case was a deposition attended by the feudal solemnities. in scotland when, in , king john balliol was pulled out of the throne by the same hands as had placed him in it, edward i. spared his vassal little of the indignity of the situation. balliol, deprived of his royal ornaments, with the ermine stripped from his tabard, resigned his realm by the symbol of a white wand. than this jhon tuk a quhyt wand and gave wp in till edwardis hand off this kynryk all the rycht. no scottish historian has noticed the absolute legal propriety of this, and it is worth noticing. by contemporary law (_britton_, ii., ), _une blaunche verge_ was the recognised symbol of disseisin by consent. the thirteenth century was very particular, even in small things, about its law. _disseisin_, provided for by statute of , in disputed successions to real property, and known to scotland as the breaking of seisin, was symbolically affected--_frangendo discum_--by the curiously expressive act of breaking a dish or dishes, with fire underneath. law under the feudal system. by cuming walters. to the historian proper feudalism presents a wide subject with diverse points of interest, but its legal aspect is comparatively a small matter, and it can be considered without detailed reference to the whole vast scheme which existed from early german and gothic times, and overspread the greater part of europe. it is a common error to suppose that it was introduced into england by the normans. william the conqueror only superimposed a french form of feudalism upon that which already existed; and all historians agree that the measures he adopted, the restrictions he made, and the original conditions he established, were evidence of his farseeing genius, and a masterpiece of statecraft. his was a feudalism which, while giving the lords great personal power and influence, retained them still as the servants of the king, and totally prevented them from using their strength against the throne. in this respect the feudal system in england never resembled that of germany and france, or even that which the norman barons established in scotland. the conqueror had no intention of allowing the owners of territory to supersede his own authority, and to be beyond the sovereign's control. while, therefore, he allowed them all liberty in dealing with their dependents, he made it impossible for them to defy his own authority, first by distributing their possessions so that they could not have a great army of followers at command, and, secondly, by insisting upon a formal declaration of allegiance from both the barons and their vassals. the former, therefore, were not beyond the law, and the latter had nominally, if not actually, some right of appeal to the monarch. these points it is necessary to bear in mind for a full understanding of legal procedure during the long period feudalism prevailed. the feudal lord's claims upon his vassals were numerous. first came his claim to their military service. he could demand from them service as assessors in his courts of various fines and payments and confiscations of land. he could dispose of females in marriage; not infrequently he consigned them to a debased existence. when the tenant was invested with possession of his feud or fief, he paid homage to his lord, that is, he proclaimed himself the "man" to help and to serve his master. kneeling humbly before the baron, he took oath of fealty, and practically enslaved himself. it was here that king william showed his wisdom by ordaining that the oath of allegiance should be not only to the feudal superior, but to the monarch as the head of all, and thus he secured the ultimate service of all vassals to the crown, and deprived the barons of autocratic power. the saxon feudalism had been of the most tyrannical character, the owners of slaves making their own laws, and carrying them out with the utmost barbarism. records exist which prove that for slight offences mistresses were accustomed to order their servants to be scourged to death, or subjected to fearful tortures. for breaking a dish, or spilling wine from a cup, for example, a servant might have his ears cut off, his nose slit, or suffer the loss of his hand, according to the caprice or fancy of his lord or lady. while murderers and robbers could find sanctuary in the church, servants had no such refuge. they were torn away from the altar to which they clung in their terror, and none could or would intervene to protect them. according to the decree of king ethelred, public punishments were to be mild, and death sentences were seldom to be passed; but the sovereign's wishes had no effect upon the treatment of bondmen. high-born women were as cruel as their husbands, and king ethelred's own mother is said to have beaten him so severely when he was a child that he regarded whipping instruments with horror to the end of his life. flagellation was not recognised as a legal punishment by the saxons, though a husband might beat his wife and incur no penalty, while the whipping of slaves was accounted no more than the whipping of animals, and perhaps less. for all other classes money-fines were almost the only authorised penalty, a fixed price being set upon persons of different degrees. but the slave had no real value, and hence could be mutilated or killed at the pleasure of his lord. the ideal of feudalism, never realised in england, was that the king and his tenants-in-chief should hold law-courts, which the tenant or the sub-tenants should be bound to attend to have their cases tried according to statute rules. but the system was only imperfectly carried out, and the fact that the tenant-in-chief, or feudal lord, had the right to levy taxes (called "tallage" or "tailles") on his vassels, speedily led to all sorts of tyranny and abuse. still, the feudal courts could not engross the legislation for the excellent reason that the quick-witted conqueror had preserved the witanagenot and the courts of the shire and the hundred to check the barons. the latter made a big effort to introduce the continental system of feudalism, by which each of them would have been supreme in his domain; but the plans were defeated as we have seen. william's successors were men of a different stamp, and the system proved unworkable in the hands of weaker men. "the prince," says hume, "finding that greater opposition was often made to him when he enforced the laws than when he violated them, was apt to render his own will and pleasure the sole rule of government, and on every emergency to consider the power of the persons whom he might offend rather than the rights of those whom he might injure." the mischievous course pleased none, and the royal prerogative was at last systematically assailed by the barons in the time of john, and the magna charta wrestled from him. the concessions then made were of benefit to the barons rather than to the landless and dependent classes, and it remained for the third edward to diminish their power and increase the liberties of the populace. law in england during all this period was chiefly a system of oppression, proceeding stage by stage from the highest to the lowest. the revenues of the crown were obtained by extravagant rents, forfeits, taxes, reliefs, fines, aids, and other devices which show the amazing ingenuity of the extortioners. the result was that most tyrannical exactions were made in turn by the feudal lords, and the dependents groaned for six centuries under these lawless yet legalised oppressions. personal property was at the mercy of the lords, who adopted the most cruel means to enforce their "rights." they, in turn, could be the victim of extortions, as was proved in the case of roger of dudley, who was summoned to receive the honour of knighthood in . he found the honour so expensive that he declined to appear, whereupon a writ was issued--"because roger de someri, at the feast of pentecost last past, has not appeared before the king to be girded with the military girdle, the sheriff of worcestershire is hereby commanded to seize on the house of dudley and all other lands of the said roger within his jurisdiction, for the king's use; and to keep them with all the cattle found upon them, so that nothing may be moved off without the king's permission." the same roger had a twelve years' dispute with william de birmingham touching the service due for the manor of birmingham, for which the latter was required to perform the service of eight knights' fees, a half and a fourth part, and also to do suit to the court at dudley once every three weeks. in such wise did these cheftains rule. another curious piece of law relating to the dudley lands is told by leland:--"the lorde powis, grauntfather that is now, being in a controversy for asawte made upon hym goying to london by the lord dudeley, dudeley castelle condesended by entreaty, that his son and heir should mary the olde lorde of dudleis' daughter." a very amiable method of atoning for personal violence. the feudal lord had absolute power over his own family, as well as over his dependents, the laws of household government being entirely of his own devising and prompted by his passion, his ignorance, and his wickedness. robert de belesme, earl of shropshire and of arundel and shrewsbury, one of the most powerful and defiant barons of norman times, tore out the eyes of his own children when they had, in sport, hidden their faces beneath his cloak. he cast his wife in a dungeon, heavily fettered; but every night he sent his servants to drag her to his bed, and in the morning sent her back to her prison. this torture he inflicted upon her to gain money from her family. he disdained to allow his captives in war to be ransomed, but impaled them, men and women, upon stakes. his friends were terrified to approach him, for by way of pleasantry he would engage them in merry chat and suddenly plunge his sword into their sides with a loud laugh. no law could touch this man, and no avenger arose to overcome him. the warden of the welsh and english marches made also his own laws, which were conceived in a spirit of the utmost cruelty. border foragers, for example, were cast into a dungeon, and subjected to the punishment of having their right hands chopped off with the axe. this prescribed penalty was often aggravated by additional torture or death. feudalism was deep-rooted, so deep-rooted that not the enactments of all the normans and plantagenets could do more than check its growth and gradually ameliorate its severities. but while some of the old customs were abolished, the bulk of the laws remained based upon the anglo-saxon customs, so that as one writer has tersely explained, "the land laws and game laws are derived from the normans, the common law from the anglo-saxons, and almost all our statute laws breathe the spirit of pre-norman england." to this macaulay refers with ill-disguised scorn in his history: "our laws and customs have never been lost in general irreparable ruin. with us the proceedings of the middle ages are still valid precedents, and are still cited on the gravest occasions by the most eminent statesmen.... thus in our country the dearest interests of parties have been staked on the results of the researches of antiquaries." the historian, however, does admit that there is compensation for the anomalies which result from this polity. "other societies possess written constitutions more symmetrical. but no other society has yet succeeded in uniting revolution with prescription, progress with stability, the energy of youth with the majesty of immemorial antiquity." that the spirit of olden feudalism should sometimes be found surviving in modern laws is inevitable. villenage is extinguished, and yet in the very character of certain classes, as well as in the operation of certain laws affecting lands and personal privileges, we see a direct connection between the submission of the bondman in the past to his hereditary master and the readiness of the poor in the present to yield to one in higher station. what struck the philosophic emerson most, on his visit to england, was that englishmen should maintain their old customs, repeat the ceremonies of the eleventh century, and consider in so many things that "antiquity of usage is sanction enough." "the middle ages," he said, "still lurk in the streets of london." the stocks and the whipping-post, which stood in front of every castle, were the commonest instruments in use for the punishment of the ceorl and villein who displeased their masters. for the ceorl, who could not quit the land on which he was born, or free himself from slavery, life was particularly hard. he could not absolve himself by money payments, like the rest of his fellow-men, if once he gave offence; while the majority could rob and murder and escape with a fine, the ceorl's slightest defect, real or imagined, was punished with merciless rigour. tithings and the process of compurgation came to the assistance of other criminals, but the ceorl could appeal to none, and expect neither pity nor aid. such facts give point to emerson's dictum that "castles are proud things, but 'tis safest to be outside them." the villein was in a much happier state than the ceorl. he was free against everybody except his lord, and the criminal code accorded him the same privileges as a free man. the lord was even liable to punishment for killing or mutilating his villein, and the _mirror of justice_ in the thirteenth century laid down the fact that "the villein is no serf in any sense of the word; he is a free man; his land is a free tenure." but all this is largely comparative, and our estimate of the advantages enjoyed by the villein must depend upon whether we view it by the standards of the time, or by modern standards. at all events, while the ceorl tasted all the bitterness of his serfdom, the adjudged felon in other stations was able to obtain much leniency. the common form of oath or abjuration in king edward's time was this: "this heare, thou sir coroner, that i am a robber and a murderer, and a fellow of our lord the king of england; and because i have done many such evils in his lande i do abjure the lande of our lord edward, and i shall haste me towards the port of ----, which thou hast given me, and that i shall not goe out of the highway, and if i doe, i will that i be taken as a robber and a felon. and that at such a place i will diligentlie seeke for passage, and i will tarrie there but one ebbe and flood, if i can have passage; and unlesse i can have it in such a place i will goe every day into the sea up to my knees, assaying to pass over; and unlesse i can do this within fortie days i will put myselfe again into the church as a robber and a felon, so god me helpe and his holy judgment." but king richard showed no disposition to put so much trust in the honour of these gentry, and when setting out for palestine, he made a law against peculating sailors, which was calculated to dismay them: "whosoever is convicted of theft shall have his head shaved, melted pitch poured upon it, and the feathers from a pillow shaken over it, that he may be known; and shall be put on shore on the first land which the ship touches." this punishment reminds us of a modern american institution. the law of "englishry" deserves a passing note. it dates back to the time of canute, and was continued by the normans. when canute sent away the greater portion of his danish troops, "the witan pledged themselves that the rest should be safe in life and limb, and that any englishman who killed any of them should suffer punishment. if the murderer could not be discovered, the township or hundred was fined." the proud and tyrannical normans used this law to their own advantage. a mere englishman being a vassal, and of no importance, could be killed with impunity, but it was ordained that when a man was found killed, and evidence was not brought to prove that he was english, he should be held to be a frenchman, so that a penalty could be imposed upon the township. this law of "englishry" is often illustrated in old chronicles. men were found murdered by the roadside, on heaths, and in woods; the chronicles state that "no englishry was proved," and the towns were accordingly amerced. the "frankpledge" was not so feudal in character, though it was based upon the principle that "every landless man shall have a lord who shall answer for his appearance in the courts of law." the custom prevailed before the conquest, ten men forming a "tithing," the members of which were answerable each for others. the present court leet is a survival of the system, though in a very modified form. the feudalism which the norman barons imposed upon scotland, and which was unchecked by king william, so that it reproduced all the evils of the ferocious continental system, was marked by terrible excesses. no institution was more shameful and abhorrent, or so vividly reveals the baseness to which unrestricted feudalism sank, than the horrible depravity of maiden-rights, or _droits de seigneur_. beaumont and fletcher founded upon the historic incidents their drama of "the custom of the country," and though a few mild attempts have been made to throw doubt upon the facts, there is no question that these domestic tyrannies spread rapidly from scotland to france and germany, and took numerous odious forms. isaac disraeli, in his "curiosities," devotes a chapter to the subject, which can scarcely be dealt with in detail in a work appealing to the general reader. the shameful institution was abolished by malcolm iii., who, however, put the matter upon a business basis by ordering that it should be redeemed by a quit-rent. but the lord still considered himself privileged to manifest his authority over his vassals by thrusting his booted leg into the bed of a newly-married couple, or by sousing the bridegroom in a river. the wardships enjoyed by the feudal lords were equally absurd, one of their favourite methods of raising money being to arrange an unsuitable marriage, and on the refusal of the persons to carry out the contract, to claim the revenue of the wards' estate as "forfeit." the feudal lord could sell his vassals as he did his animals, and they were often bartered away with fields and houses. the value of a serf was roughly apprised as four times that of an ox, and he could also be used as "live money." mr. ruskin, in his third letter in "fors clavigera," gives an account of the laws promulgated by king richard, coeur de lion, whom he declared to be the truest representative of the british "squire," under all the significances of that name. the ideal lord was an admixture of the patriarch and the tyrant, and if we examine richard's legislation, and endeavour to recognise the objects he had in view, we see that with a considerable amount of selfishness he also possessed a real wish to add to the welfare of his people. he simplified and adjusted the weights and measures of the country to put an end to cheating, and he took severe measures "to prevent the extortions of the jews." if the people would be honest, he was quite willing to do the fighting for them; if they made good cloth, he was ready to see that they got good pay; and when they bought and sold, he was determined that each should give the other good measure. but with much power comes caprice, and the feudal lords too soon forgot the interests of their dependents in serving their own ends. the english barons never made the formal claim of the german barons to rob on the highways in their own territories, though, without asserting the right, they frequently performed the act. a case in point is that of william de birmingham, who so late as the sixteenth century went out with a hundred men to molest and rob travellers on foot. the ordinary laws were unequal to calling them to account for these misdeeds; nothing but conquest by battle could have checked them. besides, there were lord palatines whose rule in their own domains was equal to that of the sovereigns, and they could make or abrogate laws at will. these kings _in petto_ appointed their own judges and courts, could reverse sentences, pardon at will for any crime, and indict at pleasure. offences committed in the county palatine were said to be "against the peace" of the lord, and not against the peace of the king, and it was with a rod of iron that these despots governed the territory allotted to them. still there was a show of legality in this. it differed from the wanton caprice of geoffrey of coventry, who oppressed the inhabitants, was amenable to no law for so doing, but consented to remit the burdensome taxes if his wife would ride naked through the streets. as a specimen of the barbarous humour of these lords, the godiva story is instructive. at the end of king stephen's troublous reign, there were eleven hundred and fifteen castles in england, each of them a centre of power, at that particular time almost absolute. the wise provisions of the conqueror had to some extent been overcome, and the feudal lords had become so unmanageable that henry ii. found himself compelled to stipulate for the destruction of a number of the strongholds. at the same time he prevented the erection of others except by royal licence, and so began to limit the oppression which had prevailed. we find, too, that in consequence of the frequent over-riding of the common law by men in authority, the monarch reserved to himself more and more of sovereign power, "by which," says sir robert filmer in his famous "patriarcha"--answered by john locke in the still more famous treatises on civil government--"he did supply the want or correct the rigour of the common law, because the positive law, being grounded upon that which happens for the most part, cannot forsee every particular which time and experience bring forth. already sundry things do fall out," he continues later, "both in war and peace, that require extraordinary help ... so that rare matters do grow up meet to be referred to the absolute authority of the prince." we find such a case in the time of richard ii., when, on a question of freehold, the appeal went direct to the king because "of maintenance, oppression, or other outrages the common law cannot have duly her course." how the lords could avoid and defy the common law is proved by two curious instances in the history of the dudleys, the family previously referred to. lord edward dudley, in , had a dispute with the neighbouring lyttelton family, and raising some persons, he went one night and stole all the cattle on the latter's estate. lyttelton obtained judgment against dudley, who was ordered to return the cattle, but he posted his servants at the gates, and bade them cut the bailiffs to pieces. lyttelton then armed sixty men and took the cattle back by force; dudley armed men to fetch them back and kill them. for this offence the nobleman and eighty followers were indicted, but by one means and another the proceedings were made to last four years, and then an agreement was entered into by the parties. lord edward's son, ferdinando, was the hero of the next exploit. he purchased the property of an oppressed widow, named martha grovenor, for £ , but only paid £ . she sued him in the exchequer for the remainder, and obtained judgment for the balance. no notice was taken of this. the following year the widow obtained a second decree, and this again was ignored. his lordship was next called upon for costs, and this led him to make an effort to compromise the matter. he entered into an agreement to pay all arrears and costs, but, having done so much, refused to fulfil his obligations. an execution of ejectment was then levied against his lordship. this he avoided for nine years, and it was only twelve years after negotiations had begun that the widow was able to obtain her dues. a very brief glance at continental feudalism and its influence upon statute law may now be given. it enables us to mark some of the differences between the english and the foreign systems, the one with its restrictions and the other all-powerful. in the eleventh century, all france and the german empire were one vast feudal possession. the powers of the lords have been classed by the historian hallam as follows--first, the right of coining money; second, that of waging private war; third, exemption from all public tributes except the feudal aids; fourth, freedom from legislative control; and fifth, the exclusive exercise of original judicature in their dominions. it is easy to perceive how, with these initial powers conceded, the seigneurs were enabled to make themselves the veritable masters of the kingdom. in germany the lawlessness of the barons became as proverbial as did their cruelty towards their slaves. the whole country was divided up into territories over which the feudal chiefs reigned as absolute and despotic kings. nor is the spirit of feudalism in that country yet extinct, for, unlike france, it has not had its bloody revolt against "aristocrats." no one can have travelled in germany and seen the castle towering high on crag or rock, and the diminutive houses scattered about its base, without realising at a glance how the chieftains and their serfs lived in the old days. in germany the feudal system was seen at its strongest and its worst, and law was paralysed while the men of lust and blood were supreme in their own dominions. austria has a similar story to tell of barbarity towards serfs, and the abrogation of law by powerful chieftains. but it is remarkable that in russia, where the feudal spirit still most strongly survives, and is marked by many excesses utterly repugnant to the feeling and customs of the times, the earliest attempts to establish a feudal system were quelled by the princes. in this land, where a mistress might, until recently, have her maid whipped to death for dropping a teacup, or for any other trivial offence, real or imagined, where again it was taken for granted that "a count carbonadoes his ignorant serfs with the knout," feudalism, once instituted, deepened its hold with the progress of years. while there was no law for the lower classes, save that dictated by the caprice of their masters, there were special exemptions and priveleges for the noble and wealthy. the russian lords pay no taxes, and they retain, in almost undiminished force, that power to abuse, insult, and destroy the peasantry which was possessed by the _ancienne noblesse_ of france before the revolution. mr. morley roberts, in one of his russian historical sketches, relates that not long ago a noble threw a hebrew into a dungeon for an offence, and a week later asked his jäger what had become of him. "oh," said the fellow with a laugh, "he made so much noise that i shot him." the state of bohemia from the ninth to the fourteenth century shows to what deplorable depths a race may sink under an unrestrained and licentious feudalism. the bohemian nobles practically abolished the marriage laws, and in addition to oppressing their dependents, frequently sold them into slavery. when st. adalbert endeavoured to effect a reformation, he found every impediment put in his way, and his wishes openly defied. he had a horror of bloodshed, and preached the hatefulness of murder. by way of response, a man, whose wife had been put in a nunnery to save her from his brutality, was dragged out and butchered in the streets. adalbert had to wait long before he could influence these men who, secure in their castles, could indulge their rapacity without fear of punishment. reforms, effected in the tenth century, however, were not permanent, and in the twelfth century the nobles had succeeded in converting the local assembly, with its power of appointing judges, to their own uses. mr. edmund maurice, in his history of bohemia, relates that the nobles began to secure the judgeships for themselves, and then sold or bequeathed the offices to heirs. they thus made the appointments a means of tyranny and a source of profit, and with the money acquired purchased the lands of freemen. others, owing to the unpopularity of the local tribunals, strengthened the power of their own feudal courts, and again reduced their dependents to abject slavery. "the coolness," says mr. maurice, "with which many of the grants of land transferred workmen of various kinds as mere appendages of fields and fishponds, is in itself a proof of the degraded position to which the peasant class had been reduced; and the fact that military service seemed one of the few means of escaping from serfdom, led the peasants to favour those wars which in the end increased their misery." eventually king wenceslas, famed in ballad, and still more famed in bohemian history, came to the rescue, and ordained "that no baron or noble of the land shall have power in the city of brünn, or shall do any violence in it, or shall detain anyone, without the license and proclamation of the judge of the city." the wide survey we have taken enables a fair estimate to be made of the state of the law in europe when the castle was the court of justice, and the baron was the judge. england alone of all europeon countries seems to have been able to place a check upon the more flagrant abuses, and in later times of reform to have succeeded, while abolishing what was essentially evil in the system, in retaining whatever of it was of worth. whether there be still laws too deeply impressed with feudal ideas for modern acceptance is a question for legislators to consider. the manor and manor law. by england howlett. everything relating to the manor reminds us forcibly of the baron of olden days, with his little territory, in which he was practically a king. estates in copyhold are essentially distinct both in their origin and in their nature from those of freehold estates. copyhold lands are holden by _copy_ of court roll, that is to say, the muniments of the title to such lands are _copies_ of the roll or book in which an account is kept of the proceedings in the _court_ of the manor to which the lands belong. for it must be remembered that all copyhold lands belong to and are parcel of some manor. an estate in copyhold is not a freehold; but, according to construction of law, merely an estate _at the will of the lord_ of the manor, at whose will copyhold estates are expressed to be holden. copyholds are also said to be holden _according to the custom_ of the manor to which they belong, for custom is of course the life and being of copyholds. we must remember that in former days, a baron, or great lord, becoming possessed of a large tract of land, granted part of it to freemen for estates in fee simple. part of the land he reserved to himself, and this formed the demesnes of the manor, properly so called: other parts of the land he granted out to his villeins, or slaves, permitting them, as an act of pure grace and favour, to enjoy such lands at his pleasure; but sometimes enjoining, in return for such favour, the performance of certain agricultural services, such, for instance, as ploughing the demesne, carting the manure, and other such servile work. the lands remaining after this parcelling out, generally the poorest, formed the waste lands of the manor, over which rights of commons were enjoyed by the tenants. in this way arose a manor, of which it will be seen the tenants formed two classes, the freeholders and the villeins. now for each of these classes a separate court was held--for the freeholders a court baron; for the villeins another called a customary court. in the former court the suitors were the judges; in the latter the lord only, or his steward. in some manors the villeins were allowed to have life interests, but these grants were not extended so as to admit any of their children. hence arose copyholds for life. again, in other manors a much greater degree of liberality was shown by the lords; and on the death of a tenant, the lord permitted his eldest son, or indeed sometimes all his sons, or sometimes the youngest only, and afterwards other relations to succeed him by way of heirship; for which privilege, however, the payment of a fine was usually required on the admittance of the heir to the tenancy. frequently it happened that the course of descent of estates of freehold was chosen as the model for such inheritances; but in many cases dispositions of the most capricious kind were adopted by the lord of the manor, and in course of time actually became the custom of the manor. and thus it was that copyholds of inheritance arose. again, if a villein tenant wished to part with his own parcel of land to some other of his fellows, the lord would allow him to _surrender_ or yield up again the land, and then, on the payment of a fine, would indulgently _admit_ as his tenant, on the same terms, the other, to whose use and in whose favour the surrender had been made. thus arose the method now prevalent at the present day, of conveying copyholds by _surrender_ into the hands of the lord of the manor to the use of the purchaser, and the subsequent admittance of the latter. by long custom and continued indulgence that which at first was a pure favour gradually grew up into a right, and thus it came to pass that the will of the lord, which had of course originated the custom, came at last to be controlled by it.[ ] the rise of the copyholder from a state of uncertainty to certainty of tenure appears to have been very gradual. britton, who wrote in the reign of edward i., thus describes this tenure under the name of villeinage. "villeinage is to hold part of the demesnes of any lord entrusted to hold at his will by villein services to improve for the advantage of the lord." and he further adds that "in manors of ancient demesne there were pure villeins of blood and of tenure, who might be ousted of their tenements at the will of their lord." in the reign of edward iii. a case occured in which the entry of a lord on his copyholder was adjudged lawful, _because he did not do his services_, by which he broke the custom of the manor, which seems to show that even at that time the lord could not have ejected his tenant without a cause. and later, in the reign of edward iv., the judges gave to copyholders a certainty of tenure by allowing them an action of trespass on ejectment by their lords without just cause. "now," says sir edward coke, "copyholders stand upon a sure ground; now they weigh not their lord's displeasure; they shake not at every sudden blast of wind; they eat, drink, and sleep securely; only having a special care of the main chance, namely, to perform carefully what duties and services soever their tenure doth exact and custom doth require; then let lord frown, the copyholder cares not, knowing himself safe." in the present day a copyholder has as good a title as a freeholder; in some respects a better; for all the transactions relating to the conveyance of copyholds are entered on the court rolls of the manor, and thus a record is preserved of the title of all the tenants. since the passing of the statute of _quia emptores_, edward i., it has not been lawful to create a tenure of an estate in fee simple; so that every manor bears date at least as far back as that reign; to this rule the few seignories, which may have been subsequently created by the king's tenants in capite, form the only exception. the name "manor" is of norman origin, but the estate to which it was given existed, in its essential character, long before the conquest; it received a new name as the shire also did, but neither the one nor the other was created by this change. the local jurisdiction of the thegns who had grants of sac and soc, or who exercised judicial functions amongst their free neighbours, were identical with the manorial jurisdictions of the new owners. although long continued custom has now rendered copyholders quite independent of the will of the lords, yet all copyholds, properly so called, are still expressly stated, in the court rolls of manors, to be holden at the will of the lord; and, more than this, estates in copyholds are still liable to some of the incidents of mere estates at will. in ancient times the law laid great stress on the feudal possession or seisin of lands, and this possession could only be had by the holder of an estate of freehold, that is, an estate sufficiently important to belong to a free man. now, as we have seen, copyholders in ancient times belonged to the class of villeins or bondsmen, and held, at the will of the lord, lands of which the lord himself was alone feudally possessed. the lands held by the copyholders still remained part and parcel of the lord's manor; and the freehold of these lands still continued vested in the lord; and this is the case at the present day with regard to all copyholds. the lord of the manor is actually seised of all the lands in the possession of his copyhold tenants. the lord, having the legal fee simple in the copyhold lands comprised in his manor, possesses all the rights incident to such an estate, controlled only by the custom of the manor, which is now the tenant's safeguard. thus he possesses a right to all the mines and minerals under the land, and also to all timber growing on the surface, and this even though the timber may have been planted by the tenant. however, it must be borne in mind that these rights are somewhat interfered with by the rights which long continued custom has given to the tenants, for the lord cannot come upon the lands to open his mines, or to cut his timber, without the copyholder's leave. a copyholder cannot commit any waste, either voluntary, by opening mines, cutting down timber or pulling down buildings; or permissive, by neglecting to repair. for the land, with all that is under it or upon it, belongs to the lord of the manor; the tenant has nothing but a customary right to enjoy the occupation; and if he should in any way exceed this right, a cause of forfeiture to his lord would at once accrue.[ ] by the customs of manors, on every change of tenancy, whether by death, sale, or otherwise, fines of more or less amount become payable to the lord. by the customs of some manors the fine payable was anciently arbitrary; but now in modern times, fines, even when arbitrary by custom, are restrained to two years' improved value of the land after deducting quit rents. in some manors a fine is due on the change of the lord; but in this case the change must always be by act of god, and not by any act of the party. the tenure of an estate in copyholds involves an oath of fealty from the tenant, and together also with suit to the customary court of the manor. another incident of the tenure, and this sometimes a very profitable one, is the escheat to the lord on failure of heirs. before the abolition of forfeiture for treason and felony, the lord of a copyholder had a great advantage over the lord of a freeholder in this respect, that, whilst freehold lands in fee simple were forfeited to the crown by the treason of the tenant, the copyholds of a traitor escheated to the lord of the manor of which they were held. one of the most curious incidents of the tenure is the right of the lord, on the death of a tenant, to seize the tenant's best beast, horse, or other chattel under the name of a heriot. now it would appear that heriots were introduced into england by the danes. the heriot of a military tenant was his arms and habiliments of war, which belonged to the lord for the purpose of equipping his successor. and it would seem that in analogy to this purely feudal custom, the lords of manors usually expected that the best beast or other chattel of each tenant, whether he were a freeman or a villein, should on his death be left to them. in old wills of copyholders we constantly find this legacy to the lord of the manor the first bequest mentioned: in fact the tenant really making a bounty of what was actually an obligation. in cases where the tenant died intestate the heriot of the lord was taken in the first place out of his effects, unless indeed the lord seized the whole of the goods, which not unfrequently happened in days before custom had so completely controlled the rights of the lord, and at the same time protected the interests of the tenant. heriots survive to this day in many manors, a true badge of the ancient servility of the tenure. now, however, the right of the lord is confined to such a chattel as the custom of the manor, grown into a law, will permit him to take; and in most cases the heriot consists not of a chattel at all, but merely of a money payment. the mode in which copyhold land is transferred from one person to another still retains much of the primitive simplicity of bygone ages. the copyholder personally surrenders the lands into the hands of the lord, generally through his steward, and this surrender is evidenced by the delivery of some article varying according to the custom of the particular manor: in some manors the surrender is effected by the delivery of a rod, in others of a straw, and again in others by a glove. the surrender having been duly effected, the purchaser is admitted, and the various documents used are all entered upon the court rolls of the manor. the steward is the person who makes the entries on the court rolls, and they are kept in his custody, but subject however to the right of the tenants to inspect them. the steward also usually presides at the copyhold courts of the manor. a special custom is required to entitle the wife of a copyholder to any interest in her husband's lands on his death intestate. where such a custom does exist the wife's interest is termed her _freebench_, and it consists generally of a life interest in one-third part of the lands of which the husband died possessed. freebench in most manors differs from the ancient right of dower in this most important particular, that whilst the widow could claim her dower out of all the freehold lands which her husband actually possessed at any time during the marriage, the right to freebench does not in general attach until the actual death of the husband, and of course may be defeated by a devise of lands by the husband's will. from this it will be seen that freebench is no impediment to free alienation by the husband of his copyholds without any consent on the part of his wife. to this general rule, however, the manor of cheltenham forms an important exception; for by the custom of this manor the widow's freebench attaches in the same way as the ancient right of dower did on all the land of copyhold tenure, of which the husband at any time during the marriage had been possessed. centuries have robbed the manor of much of its importance; most of the honour and prestige has decayed which once surrounded the lord, his power has become controlled by long continued custom, so that the copyhold tenants are practically independent of him, and have as good a title to their lands as freeholders. little remains beyond the most prominent of the old formalities, which at one time gave dignity and importance to the lord of the manor and his court. most of the dealings with copyhold land are now effected out of court, and although the courts are still held at the customary periods, they are for the most part an empty formality, their glamour gone, yet still possessing an especial interest of their own as evidence of the surviving of ancient customs, which have practically remained unchanged through the roll of centuries. ancient tenures. by england howlett. practically all the landed property in england is, by the policy of our laws, supposed to be granted by, dependent upon, and holden of some superior lord, in consideration of certain services to be rendered to such lord by the possessor of this property, and the terms or manner of their possession is therefore called a _tenure_. thus all the land in the kingdom is supposed to be held, mediately or immediately, of the sovereign who is consequently styled the lord or lady _paramount_. all tenures being thus derived, or supposed to be derived, from the sovereign, those who held directly under such sovereign, and in right of the crown and dignity, were called tenants _in capite_, or _in chief_, which was the most honourable species of tenure, although at the same time it subjected the tenants to far greater and more burthensome services than the inferior tenures did, and this distinction ran through all the different sorts of tenure. william i., and other feudal sovereigns, although they made large and numerous grants of land, always reserved a rent or certain annual payments, which were collected by the sheriffs of the counties in which the lands lay, to show that they still retained the _dominium directum_ in themselves. with our ancestors the most honourable and highly esteemed species of tenure was that by knight service, and this was purely and entirely a military tenure, being, in fact, the result of the feudal establishment in england. now to make a tenure by knight service, a determinate quantity of land was necessary, which was called a knight's fee, _feodum militare_; the measure of which in edward i., was estimated at twelve ploughlands, and its value (although it varied with the times) in the reigns of edward i. and edward ii. was stated at £ per annum. the knight who held this proportion of land was bound to attend his lord to the wars for forty days in every year, if called upon so to do, which attendance was his rent or service for the land he claimed to hold. if, however, he held only half a knight's fee, he was only bound to attend his lord twenty days, and so on in proportion. this tenure of knight service drew with it several consequences as inseparably incident to the tenure in chivalry, and one of the most profitable, and, at the same time, arbitrary of these was marriage. this incident called marriage was the right which the lord possessed of disposing of his infant wards in matrimony, at their peril of forfeiting to him, in case of their refusing a suitable match, a sum of money equal to the value of the marriage; that is, what the suitor was willing to pay down to the lord as the price of marrying his ward; and double the market value was to be forfeited, if the ward presumed to marry without the consent of the lord. the personal attendance rendered necessary by knight service growing troublesome and inconvenient in many respects, the tenants found means of compounding for it; first, by sending others in their stead, and then in process of time making a pecuniary satisfaction to the lord in lieu of it. this pecuniary satisfaction at last came to be levied by assessments at so much for every knight's fee; the first time this appears to have been done was in henry ii., on account of his expedition to toulouse; but it soon became so universal that personal attendance fell quite into disuse. from this period we find, from our ancient histories, that when the kings went to war, they levied scutages on their tenants, that is, on all the landowners of the kingdom, to defray their expenses, and to pay for the hire of troops. these assessments, in the time of henry ii., seem to have been made in a most arbitrary manner, and entirely at the king's will and pleasure. the prerogative became, indeed, abused to such an extent, that at last it became a matter of national clamour, and king john was obliged to consent by his _magna carta_, that no scutage should be imposed without the consent of parliament. but this clause was omitted in the charter of henry iii., where we only find that scutages, or escuage, should be taken as they were used to be taken in the time of henry ii.; that is, in a reasonable and moderate manner. yet afterwards, by statute edward i., and many subsequent statutes, it was again provided, that the king should take no aids or tasks but by the common assent of the realm; hence it was held that scutage, or escuage, could not be levied except with the consent of parliament; such scutages being indeed the groundwork of all succeeding subsidies, and the land tax of later times. it will easily be seen that with the degenerating of knight service, or personal military duty into a pecuniary assessment, all the advantages were destroyed, and nothing in fact remained but the hardships. instead of having a national militia, composed of barons, knights, and gentlemen, bound by their interests and their honour to defend the king and country, the whole system of military tenures tended to nothing else but a wretched means of raising money to pay an army of occasional mercenaries. at length the military tenures, with all their heavy appendages were destroyed at one blow by statute, charles ii., c. , which enacts "that the courts of wards and liveries, and all wardships, liveries, primer seisins, and ousterlemains, values and forfeitures of marriage, by reason of any tenure of the king or others, be totally taken away. and that all fines for alienation, tenures by homage, knight service, and escuage, and also aids for marrying the daughter, or knighting the son, and all tenures of the king _in capite_, be likewise taken away. and that all sorts of tenures, held of the king or others, be turned into free and common socage; save only tenures in frank almoign, copyholds, and the honorary services of grand serjeanty." another ancient tenure was that by _grand serjeanty_, whereby the tenant was bound, instead of serving the king generally in the wars, to do some special honorary service for the king in person; as to carry his banner, his sword, or the like; or to be his butler, champion, or other officer at his coronation. tenure by _cornage_ was a species of grand serjeanty, being a grant of land upon condition that the tenant was to wind a horn when the scots or other enemies entered the land, in order to warn the king's subjects. the tenure of petit serjeanty bears a great resemblance to the tenure of grand serjeanty; for as the one is a personal service, so the other is a rent or render, both tending to some purpose relative to the king's person. petit serjeanty as defined by littleton, consists in holding lands of the king, by service of rendering to him annually some small implement of war, as a bow, a sword, a lance, an arrow, or the like. this, of course, is but socage in effect, for it is no personal service, but a certain rent. the tenure by which the grants to the duke of marlborough and the duke of wellington, for their great military services to the country, are held, are of this kind, each rendering a small flag or ensign annually, which is deposited in windsor castle. bury house (new forest), the property of sir charles mill, bart., is held by the tenure of presenting the king whenever he enters the new forest with a brace of milk-white greyhounds. a breed of these dogs is preserved by the family in readiness. king george iii. received dogs in recognition of this tenure in , and the incident is the subject of one of lawrence's pictures. in beckwith's edition of blount's "fragmenta antiquitatis," the following tenure is inserted from the "black book of hereford."--"the tenants at hampton bishop, in the county of hereford, were to get yearly six horse loads of rods or wattels, in the hay wood, near hereford, and bring them to hereford to make booths (or hurdles to pen sheep in) at the fair when they should be required; and for every load of the said rods they were to be allowed a halfpenny at the fairs." this tenure would appear to relate to one particular fair only, and not to all the fairs formerly held at hereford. the particular fair is supposed to have been the one beginning on may th, and commonly called the nine-days' fair, from the circumstance of its continuing for that length of time. from time immemorial this fair was proclaimed, with certain formalities, by the bishop of hereford's bailiff, or his deputy, the tolls of the fair belonging to one or both of these officers. during the continuance of the fair, the bishop's bailiff superseded the mayor of hereford as acting magistrate, the fair being held in a street opposite the bishop's palace. brienston, in dorsetshire, was held in grand serjeanty by a curious jocular tenure, viz.:--by finding a man to go before the king's army for forty days when he should make war in scotland (some records say in wales) bareheaded and bare-footed, in his shirt, and linen drawers, holding in one hand a bow, and in the other an arrow without feathers.[ ] the dukes of athol hold the blair athol estate by the tenure of presenting a white rose to the sovereign whenever he visits them there. land was frequently held by the tenure of protecting the church property in times of war. scott tells us how the bishop of durham gave lands to the danish count, witikind, to be held by this tenure. the story is not true, but the tenure is; broad lands he gave him on tyne and wear, to be held of the church by bridle and spear; part of monkwearmouth, of tynedale part, to better his will and soften his heart. _harold the dauntless._ canto i., iv. the tenure of ancient demesne exists in those manors, and in those only, which belonged to the crown in the reigns of edward the confessor and william the conqueror, and in domesday book are called _terroe regis edwardi_. the tenants are freeholders and possessed certain privileges, the chief of which was a right to sue and be sued only in their lord's court. another kind of ancient tenure, still subsisting, is the tenure of frankalmoign, or free alms, and this is the tenure by which the lands of the church are for the most part held. this tenure is expressly excepted from the statute, charles ii., by which the other ancient tenures were destroyed. it has no peculiar incidents, the tenants not being bound even to do fealty to the lords, because, as littleton says, the prayers and other divine services of the tenants are better for the lords than any doing of fealty. as the church is a body having perpetual existence, there is, moreover, no chance of any escheat. by this tenure almost all the monasteries and religious houses held their lands. it was an old saxon tenure; and continued under the norman revolution, through the great respect that was shewn to religion and religious men in ancient times. this too, no doubt, is the reason that tenants in frankalmoign were discharged from all other services except the repairing of highways, building castles, and repelling invasions; just in fact as the druids, among the ancient britons, had similar privileges. the tenure being purely spiritual, the lord had no remedy for neglect by distress or otherwise, but merely a complaint to the ordinary to correct it. one of the most interesting tenures is that of borough english. there are a great number of manors throughout the country in which this tenure prevails; they are not however confined to one county or one district. borough english is the right of succession of the youngest son, instead of the eldest, to real estate in case of intestacy, but the custom is not always the same; it differs in different manors. in some it is confined to the sons only, and if there should be no son the estate is shared equally amongst all the daughters. in other manors, principally sussex, the youngest daughter inherits. again, there are cases to be found where if there be no children, the youngest brother inherits, and in others it goes according to the rules of the common law. there are, moreover, places in which the copyhold land only is borough english, while the freehold is held by the ordinary tenure, and in others the freehold and copyhold alike follow the borough english custom. the area over which this borough english tenure prevails is an exceedingly wide one. it is found in nearly every part of europe, except perhaps italy and spain--in germany, hungary, the ural mountains, and in asia as far as the borders of china. many attempts have been made to explain the custom. littleton suggests that the youngest son, by reason of his tender age, is not so capable as the rest of his brethren to help himself. it is possible the origin may have come to us from the tartars, amongst whom this custom of descent to the youngest son also prevails. that nation is composed almost entirely of shepherds and herdsmen, and the elder sons, as soon as they are capable of leading a pastoral life, migrate from their father with a certain allotment of cattle, and go to seek a new habitation. and thus we find that, among many other northern nations, it was the custom for all the sons, but one, to migrate from the father, which one became his heir. the tenure of gavelkind prevails principally in the county of kent. it is universally known what struggles the kentish men made to preserve their ancient liberties, and with how much success those struggles were attended. it seems fair therefore, to conclude that this custom was a part of those liberties, agreeably to the general opinion, that gavelkind, before the norman conquest, was the general custom of the realm. the distinguishing properties of this tenure are various; some of the principal are these: . the tenant is of age sufficient to alienate his estate by feoffment at the age of fifteen. . there never was any escheat in case of an attainder and execution for felony; their maxim being "the father to the bough, the son to the plough." . in most places, the tenant had the power of devising his lands by will, before the statute for that purpose was made. . the lands descend not to the eldest, youngest, or any one son only, but to all the sons together. this last incident is, of course, the most important affecting the tenure, and not only this, but also the most interesting, in that, like borough english, it prevails to the present day. true it is that certain lands in kent, once gavelkind, have been made descendable according to the rules of the common law, by special statutes; however, these statutes only affect a very small portion of the county. gavelkind and borough english, being customs already acknowledged by the law, need not be specially pleaded; it is sufficient to show that the lands are affected and regulated by the same; but all other private customs must be pleaded. the ancient barons of buccleuch, both from feudal splendour and from their frontier situation, retained in their household at branksome a number of gentlemen of their own name, who held lands from their chief for the military service of watching and guarding his castle. nine and twenty knights of fame hung their shields in branksome hall nine and twenty squires of name brought them their steeds from bower to stall. nine and twenty yeomen tall waited duteous on them all. they were all knights of metal true, kinsmen to the bold buccleuch. "lay of the last minstrel."--scott. canto i., iii. laws of the forest. by edward peacock, f.s.a. the subject of "the laws of the forest" and of the wild things which have their homes therein, both in our own island and elsewhere, has been a matter of discussion for ages; but very little has been written thereon which is of much service, except to legal specialists. it is, indeed, one of those difficult subjects which is hardly possible to make interesting to those whose thoughts range in the present rather than in the past. there can be no doubt whatever, that from the birth of the human race, long ere we can trace our history back in written documents, the killing of animals has been a sport as well as a means of procuring food; both these may be considered, whatever certain dreamers may aver to the contrary, as among the necessities of human life. we cannot be quite certain whether the stone axes, hammers, and spears, of which we see such numbers in our museums, were wrought in anticipation of the delights of the chase, or whether they were simply, what may be called, the tools of the primæval butcher; but, knowing as we do, the contempt in which every man at the present hour is held, who having wealth and leisure enough to indulge in what is called "sport," abstains from amusing himself in some form of slaughter, we may well believe that our palæolithic predecessors, however empty the larder might be, would try to impose on themselves that what they did was done to amuse themselves, as a manly exercise, not a stern necessity. in confirmation of this, we must call mind that there have been found several weapons with the reindeer and other animals carved, or perhaps it would be better to say scratched, upon them with a high degree of pictorial excellence; we may therefore infer that amusement, as well as appetite, occupied the minds of those early artists, who so deftly represented the creatures on whom they waged war. had they merely been regarded as things to be eaten, such as the tinned meats we now buy from the provision merchant, they would never have been held worthy of artistic treatment. one of the oldest proverbs that have come down to us, if indeed it be not the very oldest, is that wherein we are told something "of nimrod the founder of empire and chace, who made the woods wonder and quake for their race." that he was the first of the great hunters is a dream of lord byron's, not in any way countenanced by holy scriptures, or any of the old authorities. we are simply told in genesis that nimrod was a son of cush, and that "he began to be a mighty one in the earth. he was a mighty hunter before the lord. wherefore it is said, even as nimrod the mighty hunter before the lord."[ ] the precise meaning of this has been questioned. it most likely signifies that nimrod was the first person who organised those mighty hunting expeditions, which were so famous in the days of the great oriental despotisms. from these tyrants it is probable that the forest laws of mediæval europe had their origin. in the sculptures that have been unearthed in the dead cities of the east, hunting scenes of great magnificence are not uncommon, nor are they unknown in egypt, where, however, the capture of fish was the more common sport, as the nile may be said to have been at every man's door. that forest laws of some kind or other existed in these far-off times may be accepted as certain, and we may take it for granted, when we call to mind the general legislation then in force, that they were terribly cruel according to our modern ideas, but we can at present only arrive at these conclusions by inference. when rome became the mistress of the world, we know that in many parts of the empire the wild creatures were rigorously preserved, but we do not think that they were often hunted by their owners. such was rather the duty of freed men and slaves. those which were fit for food were preserved as delicacies for the table, but the larger beasts, such as the lion, the tiger, the bear, the lynx, and perhaps even the wild cat, were reserved for the sports of the amphitheatre. amphitheatres were much more common than is usually supposed. in a few places their remains exist still, but most of them have perished, serving as quarries for stone during the whole of the middle ages, and in mohammedan lands to a much more modern period, perhaps even to the present day. we are not sure that any list of them has been preserved, or could now be compiled, but they were so numerous throughout the empire that the possession of wild beasts on the immense estates of the roman patricians must have been a great source of wealth to their owners. the roman nobles did not care for field-sports as the northern nations did. a feeling or instinct of this kind dies hard. at the present day the italian cares much less for such amusements than the englishman, the german, or the inhabitants of northern france. virgil, who represents more fully than any other heathen poet, the feelings of the better sort of romans of his own time, says, attributing the words to another, but evidently speaking his own thoughts:-- "above aught else let the woods be dear to me."[ ] this was, however, not for the sake of the slaughter that might be perpetrated therein, but on account of their many beauties and the grateful shade which they afforded. virgil was in many respects a modern in his love of scenery, though we doubt whether snow-clad mountains and craggy heights would have appealed to him as they have done to us during the short time that has elapsed since we have been able to see them without discomfort. when the roman empire was in the zenith of its glory, there does not seem to have been in gaul or britain any vast stretches of forest. the country was no doubt well wooded when we compare it with the france or england of to-day, for during the last two hundred years trees have been wantonly destroyed, to the great injury of agriculture as well as local beauty, for the sake of supplying land-owners with ready money. long continued wars have also desolated the national forests for the sake of supplying timber to the shipbuilder. after the various invasions which desolated so many parts of the roman empire, large portions of gaul reverted to a state of nature. towns and villages were burned, their inhabitants slaughtered, or scattered far away from their homes. a picturesque account of what followed is given in montalembert's _les moines d'occident_, from which we gather that much of gaul had reverted to a state of nature, such as it was in ere civilisation had made its first incursions on the untamed wilderness. the lives of the early gallic saints, found scattered through the many volumes of the _acta sanctorum_, bear the like testimony, as do many parts of the old romances, the scenes of which so often lie in the trackless forest. in england, things may not have been quite so woeful. the population, we believe, never became so scanty as in eastern gaul. it is still a matter of controversy whether here the native folk were slaughtered or driven into the mountains of wales, or whether the greater part of them were made bondmen. we hold the latter opinion, but the whole subject is beset with great difficulties. however this may be, it is quite certain that the population was very much reduced; many wide districts, which had been carefully cultivated by the roman settlers, or natives who had adopted their manners, were laid waste. the picturesque villas, with their adjoining peasant homesteads, were all gone--burnt with fire,--and woodland, scrub, or mere sandy desolation supplied the place of the adjoining pleasure-grounds, farms, and pastures. one of these desolate tracts named andredsweald stretched from kent to the hampshire downs, at some points almost touching the thames. another great forest appears to have extended from a point a little to the north of london, till it reached the forests of rockingham and sherwood. the great level of hatfield chace seems to have been a spur of this, if not so, they were but separated by a narrow stretch of cultivated land from the forest itself. deer were plentiful on hatfield chace until the reign of charles the first. they even continued to exist longer on the eastern side of the trent, on a long and narrow belt of scrub which extended from morton, near gainsburgh, to the point where the trent falls into the humber. an ancestor of our own, who died as recently as , was accustomed to hunt them there. as well as these larger forests, the whole land was dotted over with places once the sites of roman dwellings, but which now had become either mere wastes, or woodlands covered with tall timber trees, interspersed with the elder, the nut, the thorn, the birch, the maple, and the alder. in some places the yew and the holly were abundant also, but they seem to have flourished only in widely separated patches. the saxon and the danish conquests came about gradually, and the country was in so disturbed a state that it was impossible for rigid forest laws to be enacted, or even if written on parchment to be put in force. besides this, the saxon and danish leaders were of a different character from their norman successors. a vague memory still haunted them of the free life once lived in germany and scandinavia; a life as different as can well be imagined from that of modern democracy, but still one in which every thrall, bondman, and slave had certain well ascertained rights, which were under the protection of the state and the church. thus it came to pass that there were in almost every district stretches of forest land, which were, in a great degree, open to the people, where men could fell timber for their dwellings and slaughter animals for food; though even before the norman conquest had come as a shadow on the liberties of englishmen, there is reason for thinking that forestal-rights had become, in name at least, a privilege of the king and his great theïgns. the norman forest law was of a similar character to that which william's forefathers had enforced in normandy. the country, which we have for ages known as france, was, in earlier times, broken up into many provinces, and it was only by a slow process that it became one. each of these provinces had a forest law of its own. when the normans settled in the goodly land which they called after themselves, they retained the customs which they found there. when william transferred the laws of his old duchy to his new kingdom, it could, at the first, only be by an act of favour that anyone could kill a beast of chase except himself or his retainers. this from the nature of things did not last long. william never could have intended to retain the whole of the vast territories which the victory of senlac had given him in his own possession. he divided the kingdom among his chief tenants--tenants _in capite_,--and to these great men, with some slight exceptions, he handed over all forestal rights which existed in their domains, the king retaining to himself for his own pleasure, and as a mark of dignity, some great forests, which for ages have remained in royal hands. notwithstanding certain danish and saxon charters, it has always been traditionally held that our forest laws come from william the first, and this is substantially true, though objections to the statement might be taken. it would not be unsafe to say that no one but the conqueror could have enforced so drastic a regulation. as the bishop of oxford has so truly said, "the king made and kept good peace. the dane-geld and the forest-law were not too much to pay for the escape from private war and feudal disruption."[ ] it is true that william had desolated large tracts of land to make them serve him for the chase; the crime was terrible, though exaggerated by modern historians; but he had many noble qualities, so that those who had not personally suffered were willing to overlook the evil. with his son, william the red, the forest laws became unbearable, and were hated by baron and villain alike. he was one of the worst kings which ever disgraced the english throne. in a deeply religious age he was wantonly opposed to all godliness. alike the enemy of god and man, a type and representative of all things evil, we need not wonder when he fell by an arrow in the new forest, that men saw a visible judgment of god. to him, and to henry the first, are commonly ascribed the ferocity of the forest laws. men believed that in after time kings would have mitigated matters had it been in their power. they said, and there is much truth in the averment, that these bad laws required the support of an army of evil men to work them efficiently, and that for the ordinary court officials, or the king himself, to thwart these people would be especially dangerous. when we call to mind what have been from time to time the characters of the farmers of the taxes at naples, and various parts of france, we cannot deny that there is much truth in the statement. affairs reached their most evil point when henry ii. was king. it was then the custom for the royal foresters to be a complete law unto themselves, they put to death and mutilated whom they would without any trial whatever, or with but the mockery of the water-ordeal, a farce which had already been condemned by the church, but which was very fashionable with ruffians who were anxious to secure a conviction. one of these fellows laid hold of an ecclesiastic, with the intention of extracting from him a large sum of money. well was it for him that he was of the diocese of lincoln, and that at that time hugh of avalon was its bishop. the thunders of excommunication were at once heard, the ecclesiastic escaped from the forester's clutches, and from that time forward, though much yet remained to be done, the tide turned, and the forest laws were administered with something more nearly approaching to justice. trial by jury in old times. by thomas frost. when we congratulate ourselves, as we are so apt to do, on the length of time the system of trial by jury has been established in england, and the safeguard it affords against attempts to strain the law to the prejudice of the accused, we are often unmindful of the fact that the institution has not always proved a safeguard when the court, acting under the influence of the crown, endeavoured to obtain a conviction. it was only in the latter half of the sixteenth century that juries began to evince that determination not to yield their own judgment to the wishes of those in high authority, which became further developed in the course of the seventeenth. an interesting illustration of the old spirit of judges, and the new spirit of juries, is afforded by the trial of sir nicholas throckmorton, in , on a charge of high treason, in conspiring the death or deposition of the queen, and the seizure by force of arms of the tower of london. the prosecution was conducted by serjeant stanford and the attorney-general, griffin, the former leading; and it is noteworthy that both they and chief justice bromley questioned the prisoner in much the same manner as is still customary in france and belgium, striving to procure evidence that would convict him out of his own mouth. the endeavour failed, and the only criminating evidence against the prisoner was contained in the alleged confessions of winter and crofts, who, however, were not called as witnesses. the jury, after several hours' deliberation, returned a verdict of not guilty, upon which the lord chief justice addressed them in threatening tones, saying, "remember yourselves better. have you considered substantially the whole evidence as it was declared and recited? the matter doth touch the queen's highness and yourselves also. take good heed what you do." the jury were firm, however, and the foreman replied to the remonstrance of the bench, "we have found him not guilty, agreeable to all our consciences." then the attorney-general rose, and addressing the court, said, "an it please you, my lords, forasmuch as it seemeth these men of the jury, which have strangely acquitted the prisoner of his treasons whereof he was indicted, will forthwith depart the court, i pray you for the queen that they and every one of them may be bound in a recognizance of £ a-piece, to answer to such matters as they shall be charged with in the queen's behalf, whensoever they shall be charged or called." the court went beyond even this audacious request, for they actually committed the jury to prison! four of them were discharged shortly afterwards, having so little moral stamina left as to make a humble confession that they had done wrong; but the remaining eight were brought before the star chamber and severely dealt with, three being ordered to pay a fine of £ , each, and the others £ each. in the following reign, in a case in which three persons were indicted for murder, and the jury found them guilty of manslaughter only, contrary to the direction of the court, the jurors were both fined and bound in recognizances for their future "good behaviour." a decision of the lord chancellor, the two chief justices, and the chief baron, in the reign of james i., sets forth that when a person is found _guilty_ on indictment, the jury should not be questioned; but when a jury has acquitted a prisoner against what the court holds to be proof of guilt, they may be charged in the star chamber, "for their partiality in finding a manifest offender not guilty." in , we find this view extended to the case of grand juries ignoring a bill on grounds which the court did not consider sufficient. chief justice kelying in that year having fined a grand jury of the county of somerset, for not finding a true bill against a man accused of murder; but, says the report, "because they were gentlemen of repute in the county, the court spared the fine." this case, and several others in which the same judge had acted in a similar manner, were brought under the notice of the house of commons, however, and that assembly resolved "that the precedents and practice of fining or imprisoning jurors for verdicts is illegal." notwithstanding this resolution of the house of commons, william penn, and another member of the society of friends, named mead, being indicted at the old bailey for having, with other persons unknown, unlawfully and tumultuously assembled in gracechurch street, in the city of london, the recorder dealt with the jury in a manner which caused the illegality of fining jurors for their verdicts to be again brought into question. the indictment set forth that penn, by agreement with and abetment of mead, did in the open street speak and preach to the persons there assembled, by reason whereof a great concourse of people gathered and remained a long time, in contempt of the king and the law, and to the great terror and disturbance of many of his majesty's liege subjects. the trial took place before the recorder, the lord mayor, and the aldermen; and when witnesses had deposed that penn had preached, and that mead was there with him, the recorder summed up the evidence, and the jury retired to consider their verdict. they were absent a considerable time, at length returning with the verdict that penn was "guilty of speaking in gracechurch street." "is that all?" the recorder asked. "that is all i have in commission," replied the foreman. "you had as good say nothing," observed the recorder, and the lord mayor added, "was it not an unlawful assembly? you mean he was speaking to a tumult of people there." "my lord," returned the foreman, "that is all i have in commission." "the law of england," said the recorder "will not allow you to part until you have given in your verdict." "we have given in our verdict," returned the jury, "and we can give in no other." "gentlemen," said the recorder, "you have not given in your verdict, and you had as good say nothing; therefore go and consider it once more, that we may make an end of this troublesome business." the jury then asked for pen, ink, and paper, and the request being complied with, they again retired, returning after a brief interval with their verdict in writing. they found penn "guilty of speaking or preaching to an assembly met together in gracechurch street," and mead not guilty. "gentlemen," said the recorder, regarding the jury angrily, "you shall not be dismissed till we have a verdict that the court will accept; and you shall be locked up, without meat, drink, fire, and tobacco. you shall not think thus to abuse the court. we will have a verdict, or you shall starve for it." penn protested against this course, upon which the recorder ordered the officers of the court to stop his mouth or remove him. the jury not leaving their box, the recorder again directed them to retire and re-consider their verdict. penn made a spirited remonstrance. "the agreement of twelve men," said he, "is a verdict in law, and such a one having been given by the jury, i require the clerk of the peace to record it, as he will answer at his peril. and if the jury bring in another verdict contradictory to this, i affirm they are perjured men in law. you are englishmen," he added, turning to the jury, "mind your privilege; give not away your right." the court then adjourned to the following morning, when the prisoners were brought to the bar, and the jury, who had been locked up all night, were sent for. they were firm of purpose, and through their foreman persisted in their verdict. "what is this to the purpose?" demanded the recorder, "i will have a verdict." then addressing a juror, named bushel, whom he had threatened on the previous day, he said, "you are a factious fellow; i will set a mark on you, and whilst i have anything to do in the city, i will have an eye on you." penn again protested against the jury being threatened in this manner, upon which the lord mayor ordered that his mouth should be stopped, and that the gaoler should bring fetters and chain him to the floor; but it does not appear that this was done. the jury were again directed to retire and bring in a different verdict, and they withdrew under protest, the foreman saying, "we have given in our verdict, and all agreed to it; and if we give in another, it will be a force upon us to save our lives." according to the narrative written by penn and mead, and quoted in forsyth's "history of trial by jury," this scene took place on sunday morning, and the court adjourned again to the following day, when, unless they were supplied with food surreptitiously, they must have fasted since saturday. the foreman gave in their verdict in writing, as before, to which they had severally subscribed their names. the clerk received it, but was prevented from reading it by the recorder, who desired him to ask for a "positive verdict." "that is our verdict," said the foreman. "we have subscribed to it." "then hearken to your verdict," said the clerk. "you say that william penn is not guilty in manner and form as he stands indicted; you say that william mead is not guilty in manner and form as he stands indicted; and so say you all." the jury responded affirmatively, and their names were then called over, and each juror was commanded to give his separate verdict, which they did unanimously. "i am sorry, gentlemen," the recorder then said, "you have followed your own judgments and opinions, rather than the good and wholesome advice which was given you. god keep my life out of your hands! but for this the court fines you forty marks a man, and imprisonment till paid." penn was about to leave the dock, but was prevented from doing so, upon which he said, "i demand my liberty, being freed by the jury." "you are in for your fines," the lord mayor told the prisoners. "fines, for what?" demanded penn. "for contempt of court," replied the lord mayor. "i ask," exclaimed penn, "if it be according to the fundamental laws of england, that any englishman should be fined or amerced but by the judgment of his peers or jury; since it expressly contradicts the fourteenth and twenty-ninth chapters of the great charter of england, which say, 'no freeman ought to be amerced but by the oath of good and lawful men of the vicinage.'" "take him away," cried the recorder. "they then," continues the narrative, "hauled the prisoners into the bail-dock, and from thence sent them to newgate, for non-payment of their fines; and so were their jury. but the jury were afterwards discharged upon an _habeas corpus_, returnable in the common pleas, where their commitment was adjudged illegal." even then, judges appear to have remained unconvinced of the illegality of the practice, or stubborn in their desire to enforce their own views or wishes upon juries; for the question was not regarded as finally settled until the decision in the court of common pleas was clinched, in the same year, by a similar judgment of the court of king's bench. barbarous punishments. by sidney w. clarke. that the world has become more merciful as it has grown older, is a truism at once apparent to anyone who gives even a cursory glance at any of the numerous works dealing with the criminal laws of the olden time. still the approach to the most excellent quality has been regretably and painfully slow, and it is surely a stain on the boasted enlightenment of the nineteenth century, that the century had run through nearly three-fourths of its existence before the terrible and vindictive punishment of drawing and quartering disappeared from our statute book. in most states the early laws have been of a blood-thirsty and fear-inspiring nature, but what excuse can be urged for the fact that until the fourth day of july, in the year of grace , the punishment ordained by law for the crime of high treason, was that the unfortunate offender should be drawn on a hurdle to the place of execution, there to be hanged by the neck till he be dead; that his head be severed from his body; that his body be divided into four quarters; and that his head and quarters be at the disposal of the crown. in blackstone's time the sentence was still more savage, or, as the great commentator puts it, "very solemn and terrible." it was that the offender be drawn to the gallows, and not be carried or walk; "though usually," says blackstone, "by connivance, at length ripened by humanity into law, a sledge or hurdle was allowed to preserve the offender from the extreme torment of being dragged on the ground or pavement;" that he be hanged by the neck and then cut down alive; that his entrails be taken out, and burned before his eyes, while he was still alive; that his head be cut off, his body be divided into four parts, and his head and quarters be at the king's disposal. what our tender-hearted monarchs did with the quivering pieces of flesh let the stones of temple bar, the city gates, and the tower bear witness. here are a couple of extracts from that perennial fountain of information, the diary of mr. samuel pepys. under date of october th, , he writes, "i went out to charing cross to see major-general harrison," one of the regicides, "hanged, drawn, and quartered, which was done there, _he looking as cheerful as any man could do in that condition_." note the grim humour of the words in italics. "he was presently cut down, and his head and heart shown to the people, at which there was great shouts of joy." again, on october th, in the same year:--"this afternoon going through london and calling at crowe's, the upholsterer's, in st. bartholomew's, i saw the limbs of some of our new traytors set upon aldersgate, which was a sad sight to see; and a bloody week this and the last have been, there being ten hanged, drawn, and quartered." it will be observed that the masculine gender is used in the foregoing sentences for high treason; for, if the offender was a woman, the law with a delicacy (!) one would hardly have expected, recognised that "the decency due to the sex forbids the exposing and publicly mutilating their bodies;" so a woman was simply to be drawn to the gallows, and there burned alive. and these punishments for treason sir edward coke attempted to justify on scriptural grounds, adding "it is punishment undoubtedly just, for our liege lord the king is lord of every one of our members, and they have severally conspired against him, and should each one suffer." evidently justice has not always spelt humanity. another of the horrible punishments decreed by english law was that of boiling to death, which in the reign of henry viii. was inflicted for poisoning, and recalls the most cruel tortures of china and the orient, where slicing to death and impalement alive are or were common forms of punishment. the awful fate of being boiled alive was specially devised for the benefit of john roose, a cook, who had been convicted of throwing poison into a pot of broth intended for the family of the bishop of rochester and for the poor of the parish; in , margaret davey suffered the same lingering death at smithfield. so fearful were our ancestors of poison, that in scotland, in , thomas bellie, a burgess of brechin, and his son were banished for life by the high court of justiciary, for the heinous offence of poisoning a couple of troublesome hens belonging to a neighbour. even the laws of draco, said on account of their severity to have been written not in ink but in blood, can scarcely compete with these examples of british barbarity. among the romans strangulation, precipitation from a rocky height (a mode of carrying out the death sentence still found amongst savage tribes), and lashing to death were forms of punishment. soldiers guilty of military offences had to run the gauntlet. upon a given signal all the soldiers of the legion to which the offender belonged fell upon him with sticks and stones, and generally killed him on the spot. if, however, he succeeded in making his escape, he was thenceforth an exile from his native country. offending slaves were first scourged and then crucified. they were compelled to carry the cross to the place of execution, and after being suspended were left to perish by slow degrees. crucifixion was abolished throughout the roman empire by constantine, out of reverence to the sacred symbol. other cruel punishments were burning alive, exposure to wild animals, and condemnation to fight as gladiators in the arena for the amusement of the citizens. the second of these modes of death, for death was the invariable result, was the one usually meted out to the early christians--"if the tiber overflows its banks; if there be a famine or plague; if there be a cold, a dry, or a scorching season; if any public calamity overtakes us; the universal cry of the people is--"to the lion with the christians _christiani ad leonem_!" parricide was punished in a strange manner. the criminal, after being scourged, was tied or sewed up in a leather bag, with a dog, a cock, a viper, and an ape to keep him company, and so cast into the sea. the egyptians punished the same offence by sticking the prisoner all over with pointed reeds, and then throwing him upon a fire of burning thorns, where he lay till he was consumed. with most nations the _lex talionis_, or punishment of retaliation--an eye for an eye, a limb for a limb--has found a place in the penal system. it was not, indeed, always carried out to its logical conclusion, but rather became the subject of many subtle distinctions. among the athenians, solon decreed that whoever put out the eye of a one-eyed person should for so doing lose both his own. but what, it was asked, should be done where a one-eyed man happened to put out one of his neighbour's eyes? should he lose his only eye by way of retaliation? if so, he would then be quite blind, and would so suffer a greater injury than he had caused. the law of the jews and egyptians compelled anyone, who without lawful excuse was found with a deadly poison in his possession, to himself swallow the poison. an instance of a kind of _lex talionis_ in our own country is found in the reign of edward i., when incendiaries were burnt to death. another example is that, from the reign of henry viii. to that of george iv., to strike a blow and draw blood within the precincts of the king's palace, entailed on the offender the loss of his right hand. here are some of the regulations prescribed by the statute henry viii., chapter , for the infliction of the punishment:-- "viii. and for the further declaration of the solemn and due circumstance of the execution appertaining and of long time used and accustomed, to and for such malicious strikings, by reason whereof blood is, hath been, or hereafter shall be shed against the king's peace. it is therefore enacted by the authority aforesaid, that the sergeant or chief surgeon for the time being, or his deputy of the king's household, his heirs and successors, shall be ready at the time and place of execution, as shall be appointed as is aforesaid, to sear the stump when the hand is stricken off. "ix. and the sergeant of the pantry shall be also then and there ready to give bread to the party that shall have his hand so stricken off. "x. and the sergeant of the cellar shall also be then and there ready with a pot of red wine to give the same party drink after his hand is so stricken off and the stump seared. "xi. and the sergeant of the ewry shall also be then and there ready with cloths sufficient for the surgeon to occupy about the same execution. "xii. and the yeoman of the chandry shall also be then and there, and have in readiness seared cloths sufficient for the surgeon to occupy about the same execution. "xiii. and the master cook shall be also then and there ready, and shall bring with him a dressing-knife, and shall deliver the same knife at the place of execution to the sergeant of the larder, who shall be also then and there ready, and hold upright the dressing-knife till execution be done. "xiv. and the sergeant of the poultry shall be also then and there ready with a cock in his hand, ready for the surgeon to wrap about the same stump, when the hand shall be so stricken off. "xv. and the yeoman of the scullery to be also then and there ready, and prepare and make at the place of execution a fire of coals, and there to make ready searing-irons against the said surgeon or his deputy shall occupy the same. "xvi. and the sergeant or chief ferror shall be also then and there ready, and bring with him the searing-irons, and deliver the same to the same sergeant or chief surgeon or to his deputy when they be hot. "xvii. and the groom of the salcery shall be also then and there ready with vinegar and cold water, and give attendance upon the said surgeon or his deputy until the same execution be done. "xviii. and the sergeant of the woodyard shall bring to the said place of execution a block, with a betil, a staple, and cords to bind the said hand upon the block while execution is in doing." in addition to losing his hand, the unfortunate offender was imprisoned for life. it was not until that this punishment was abolished, after having been in existence for a period of years. a curious mode of punishment, intended to make its victim the object of popular ridicule, was in vogue in the ancient german empire, where persons who endeavoured to create tumults and to disturb the public tranquility were condemned to carry a dog upon their shoulders from one large town to another. the penal laws of france were every wit as inhuman as our own--burning alive, breaking on the wheel, hanging, beheading, and quartering were common forms of punishment. awful atrocities were committed on living victims, such as tearing off the flesh with red-hot pincers, pouring molten lead and brimstone into the wounds, and cutting out the tongue. the following is the sentence passed upon ravaillac, the assassin of henry iv., in :--he was first to be privily tortured and then carried to the place of execution. there the flesh was to be torn with red-hot pincers from his breasts, his arms and thighs, and the calves of his legs; his right hand, holding the knife wherewith he committed his crime, was to be scorched and burned with flaming brimstone; on the places where the flesh had been torn off a mixture of melted lead, boiling oil, scalding pitch, wax, and brimstone was to be poured; after this he was to be torn in pieces by four horses, and his limbs and body burned to ashes and dispersed in the air. his goods and chattels were confiscated; the house in which he was born was pulled down; his father and mother were banished, and his other relatives commanded to change the name of ravaillac for some other. this sentence was not, surely, a vindication of outraged justice, but rather a purile and barbarous legal revenge. to return to the laws of our own country. mutilation of one sort or another was long a favourite mode of punishment; pulling out the tongue for slander, cutting off the nose for adultery, emasculation for counterfeiting money, and so on. in foxe's "book of martyrs" there is an account of a miracle which was worked on the person of a mutilated criminal. a bedfordshire man was convicted of theft, and for his crime his eyes were pulled out and other abominable mutilations were inflicted on him. the sufferer repaired to the shrine of st. thomas at canterbury, where after devout and steadfast prayer the parts he had lost were, so we are told, miraculously restored. anyone who fought with weapons in a church had an ear cut off, or if he had already lost both his ears was branded in the cheek with the letter f. by an act passed in the reign of queen elizabeth, the punishment for forgery was that the offender should stand in the pillory and have his ears cut off by the common hangman, his nostrils slit up and seared, and then suffer imprisonment for life. in joseph cook, aged years, underwent this punishment, the mutilation taking place while he stood in the pillory at charing cross. the coventry act ( - charles ii., chapter .) was passed in consequence of sir john coventry having been assaulted in the street and his nose slit, out of revenge as was supposed. it enacted that if any person should of malice, aforethought, and by lying in wait, cut out or disable the tongue, put out an eye, slit the nose, or cut off or disable any limb or member of any other person, with intent to maim or to disfigure him, such person, his councillors, aiders, and abettors, should be guilty of felony without benefit of clergy, which implied the punishment of death. this act was not repealed until , and resulted in at least one curious case. in , one coke and a labourer named woodburn were indicted under the act--coke for hiring and abetting woodburn, and woodburn for the actual offence of slitting the nose of one crispe, who was coke's brother-in-law. the intention of the accused was to murder crispe, and they left him for dead, having terribly hacked and disfigured him with a hedge-bill, but he recovered. an attempt to murder was not then a felony, but under the coventry act to disfigure with an intent to disfigure was; and the accused were indicted for the latter offence. coke, in the course of his defence, raised the point that the attack on crispe was made with intent to murder him and not with intent to disfigure, therefore, he contended, the offence was not within the statute under which he was indicted. but the court held that if a man attacked another intending to murder him, with such an instrument as a hedge-bill, which could not but endanger a disfiguring of the victim, and in such attack happened not to kill but only to disfigure, he might be indicted for disfiguring. the jury found the prisoners guilty, and they were condemned and duly executed. the laws for the protection of trade decreed many cruel punishments. thus, in the reign of elizabeth, an act passed for the encouragement of the woollen industry prescribed that the penalty for taking live sheep out of the country should be forfeiture of goods, imprisonment for a year, and that at the end of the year the left hand of the prisoner should be cut off in a public market, and be there nailed up in the most public place. a second offence was punishable with death. by statute james i. chapter , anyone unfortunate enough to become a bankrupt was nailed by one ear to the pillory for two hours, and then had the ear cut off. under the romans a bankrupt was treated still more unmercifully, for at the option of his creditors he was either cut to pieces or sold to foreigners beyond the tiber. a longstanding disgrace to the intelligence and humanity of our countrymen was the fact that in former times burning alive was the inevitable fate of poor wretches convicted of witchcraft, the penal laws against which were not repeated until . so late as , five so called witches were hung at northampton, and in mrs. hicks, and her daughter, aged nine, were condemned to death at huntingdon for selling their souls to the devil. even children of tender years were not spared, but with their elders alike fell victims to our law's barbarity; there are many recorded instances of children under ten years of age being executed. in scotland the last execution for witchcraft took place in . space will not permit any attempt to run through the whole gamut of legal iniquities; at most we can only attempt a very incomplete catalogue of the inhumanities at one time or another incident to our penal codes, and with a final horror we must bring this article to an end. the punishment with which we are now about to deal, that of pressing to death, _peine forte et dure_ as it was called, is perhaps the most noteable example of the former barbarity of our law, since it was inflicted before trial on innocent and guilty alike, who refused to plead "guilty" or "not guilty" to an indictment for felony. what this punishment was, which was first instituted in , can best be told by giving the form of the judgment of the court against the person who refused to plead:--that the prisoner shall be remanded to the place from whence he came, and put in some low, dark room, and that he shall lie without any litter or other thing under him, and without any manner of covering; that one arm shall be drawn to one quarter of the room with a cord and the other to another, and that his feet shall be used in the same manner; and that as many weights shall be laid upon him as he can bear, and more; that he shall have three morsels of barley bread a day, and that he shall have the water next the prison, so that it be not current; and that he shall not eat the same day on which he drinks, nor drink the same day on which he eats; and that he shall continue so till he die or answer. _peine forte et dure_ was not abolished till , and was frequently undergone by accused persons in order to preserve their estates from being forfeited to the crown, which would have been the case if they had stood their trial and been found guilty. the year is probably the last date on which the punishment was inflicted. in , two men, thomas cross and thomas spigot, were ordered to be pressed to death at the old bailey. cross gave in on seeing the preparations made for his torture, but spigot was made of sterner stuff. in the "annals of newgate" is a description of his sufferings:--"the chaplain found him lying in the vault upon the bare ground with pounds weight upon his breast, and then prayed by him, and at several times asked him why he would hazard his soul by such obstinate kind of self-murder. but all the answer that he made was--'pray for me, pray for me!' he sometimes lay silent under the pressure, as if insensible to pain, and then again would fetch his breath very quick and short. several times he complained that they had laid a cruel weight upon his face, though it was covered with nothing but a thin cloth, which was afterwards removed and laid more light and hollow; yet he still complained of the prodigious weight upon his face, which might be caused by the blood being forced up thither, and pressing the veins as violently as if the force had been externally upon his face. when he had remained for half-an-hour under this load, and pounds weight more laid on, being in all pounds, he told those who attended him he would plead. the weights were at once taken off, the cords cut asunder; he was raised by two men, some brandy was put into his mouth to revive him, and he was carried to take his trial." in , a man, who pretended to be dumb at the sussex assizes, was sent to horsham gaol to be pressed to death unless he would plead. he endured in agony a weight of pounds, and then the executioner, who weighed over stones, laid himself upon the board upon which the weights were placed, and killed the wretched man instantly. trials of animals. by thomas frost. one of the most singular features of the jurisprudence of the middle ages, and one which was retained in the french code down to nearly the middle of the last century, was the indictment of domestic animals for injuries inflicted on mankind. the records of the criminal tribunals of france disclose ninety-two such judicial processes between and , when the last of these grotesque trials took place in poitou. the practice seems to have been based on the mosaic law, it being there ordered that, "if an ox gore a man or a woman that they die, then the ox shall be stoned, and his flesh shall not be eaten." (exodus, c. xxi., v. .) oxen and pigs were the animals that most frequently were the subjects of these strange proceedings, the indictment against the former being for goring persons, while the latter suffered for killing and sometimes devouring very young children. the earliest instance of which any particulars can be gathered occurred in , when, according to m. carlier, who relates the story in his history of the duchy of valois, a bull escaped from a farm-yard in the village of moisy, and gored a man so severely that death ensued. the count of valois, being informed of the fatility, directed that the bull should be captured, and formally prosecuted for causing the man's death. this was done, and evidence was given by persons who had seen the man attacked and killed. the bull was thereupon sentenced to suffer death, which was inflicted by strangulation, after which the carcase was suspended from a tree by the hind legs. but the affair did not end thus, for the sentence was appealed against, probably by the owner of the bull, on the ground that the retainers of the count of valois had no legal authority to execute the sentence. this plea was debated at great length, and the provincial parliament eventually decided that, though the sentence was a just one, the count of valois had no justiciary authority in the district of moisy. next in the order of time comes the trial at falaise of a sow which had torn the face and arm of a child, from the effects of which injuries it died. the sow was condemned to be mutilated in the head and one fore leg, and afterwards to be strangled, which sentence was executed in the public square of the town. this was in . three years later, a horse was condemned to death at dijon for having killed a man. in , simon de baudemont, lieutenant of meulan; jean, lord of maintenon; and the bailiff of mantes and meulan, signed an attestation of the expenses incurred in the prosecution and execution of a sow that had killed and partially eaten a child. the following is a copy of the document, to which it may be added that the story of the trial and execution may be found in the "curiosités judiciaires et historiques du moyen age" of m. aguel:--"item, for expenses within the gaol, sols. item, to the executioner, who came from paris to meulan to put the sentence in execution, by command of our lord the bailiff and of the king's attorney, sols. item, for the carriage that conveyed her to execution, sols. item, for ropes to tie and haul her up, sols, deniers. item, for gloves, deniers; amounting in the whole to sols, deniers." in connection with the first item of this curious document, it may be observed that, in a receipt delivered five years later by a notary of pont de l'arche to the gaoler of the prison of that town, the same amount is allowed for the daily food of a pig, imprisoned on the charge of killing a child, as for a man in the same prison. the last item, the gloves, is supposed by m. aguel to be a customary allowance to the executioner. in , a sow and her six young pigs were tried at lavegny, on the charge of having killed and partially eaten a child. the sow was convicted, and condemned to death; but the little ones were acquitted on the ground of their tender years or months, the bad example of their mother, and the absence of direct evidence of their having partaken of the unnatural feast. in , sentence of death was pronounced on a pig by the mayor of laon for having mutilated and destroyed an infant in its cradle, full particulars of which case were given in the "annuaire du departement de l'aisne" for . the act of condemnation, as there given, concludes as follows:--"we, in detestation and horror of this crime, and in order to make an example and satisfy justice, have declared, judged, sentenced, pronounced, and appointed that the said hog, being detained a prisoner, and confined in the said abbey, shall be, by the executioner, strangled and hanged on a gibbet, near and adjoining the gallows in the jurisdiction of the said monks, being near their copyhold of avin. in witness of which we have sealed this present with our seal." this document was sealed with red wax, and endorsed:--"sentence on a hog, executed by justice, brought into the copyhold of clermont, and strangled on a gibbet at avin." three years later, a sow was condemned to be beaten to death for having mutilated the face of a child of the village of charonne. the act of condemnation in this case directed further that the flesh of the sow should be given to the dogs of the village, and that the owner of the sow and his wife should make a pilgrimage to the church of our lady at pontoise, and bring on their return a certificate that this injunction had been duly complied with. in , a bull was strangled for having killed a boy in the lordship of cauroy, which belonged to the abbey of beaufiré. lionnois gives, in his history of nancy, a full report of the proceedings on the delivery of a condemned pig to the executioner of that city in . he mentions, among other details, that the animal, secured by a cord, was led to a cross near the cemetery; that from the most remote period the justice of the lord, the abbot of moyen moutier, was accustomed to deliver to the provost, or marshal of st. diez, near to this cross, all condemned criminals, that execution might ensue; and that, the said pig being a brute beast, the mayor and the justice held a conference at that place, and left the said pig tied with a cord, without prejudice to the judicial rights of the lord. judicial proceedings against the lower animals were not confined to france, for the list of such cases compiled by m. berriat st. prix, and published in the "memoires de la societé des antiquaires" for , mentions one tried at lausanne in , another at the same town in , a third at basle in , another at lausanne in , and a fifth at the same place in . concerning the first of these swiss trials, ruchat states, in his history of the protestant reformation in switzerland, that the victim was a pig that had killed a child in the village of chattens, situated among the jorat hills. it was cited to appear in the bishop's court at lausanne, convicted of murder, and sentenced to death--the executioner being a pork butcher. the basle case was a very singular one. a farm-yard cock was tried on the absurd charge of having laid an egg. it was contended in support of the prosecution that eggs laid by cocks were of inestimable value for use in certain magical preparations; that a sorcerer would rather possess a cock's egg than the philosopher's stone; and that satan employed witches to hatch such eggs, from which proceeded winged serpents most dangerous to mankind. on behalf of the gallinaceous prisoner, the facts of the case were admitted, but his advocate submitted that no evil animus had been proved against his client, and that no injury to man or beast had resulted. besides, the laying of the egg was an involuntary act, and as such not punishable by law. if it was intended to impute the crime of sorcery to his client, he was entitled to an acquittal; for there was no instance on record of satan having made a compact with one of the brute creation. in reply, the public prosecutor stated that, though the evil one did not make compacts with brutes, he sometimes entered into them; and though the swine possessed by devils, as related by the evangelists, were involuntary agents, yet they, nevertheless, were punished by being caused to run down a steep decline into the lake of galilee, where they were drowned. the poor cock was convicted, and condemned to death, not as a cock, however, but as a sorcerer, or perhaps a devil, in the form of a cock, on which finding it was, with the egg attributed to it, burned at a stake, with all the form and solemnity of a judicial execution. as the lower animals were amenable to the law in switzerland in those dark ages, so, in certain circumstances, they could be put into the witness box. if a house was broken into between sunset and sunrise, and the occupier killed the intruder, the act was regarded as justifiable homicide. but it was thought right to provide by law against the case of a man, living alone, who might invite a person whom he wished to kill to spend the evening with him, and having slain him, might assert that he committed the act in self-defence, or to protect his property, the dead man having been a burglar. therefore, when a man was killed in such circumstances, the occupier of the house was required to produce some domestic animal that was an inmate of the house, and had witnessed the tragedy, and to declare his innocence on oath in the presence of such animal. if the brute witness did not contradict him, he was acquitted; the law taking it for granted that god, rather than allow a murderer to go unpunished, would intervene by causing a miraculous manifestation by the mouth of a dumb witness. even more strange than the trials of oxen, pigs, etc., for offences against mankind, were the legal proceedings often taken in the middle ages against noxious insects and the smaller quadrupeds, such as rats. the "memoires de la societé royale academique de savoie" contain a very curious account of the proceedings instituted in and against certain beetles that had committed great ravages in the vineyards of st. julien. advocates were named on behalf of the vine-growers and the beetles respectively; but, by a singular coincidence, the insects disappeared when cited to answer for the mischief they had done, and the proceedings were in consequence abandoned. that was in . in , however, they re-appeared, and a complaint was thereupon addressed to the vicar-general of the bishop of maurienne, who named a judge, and also an advocate to represent the beetles. counsel having been heard on both sides, the judge suggested that the vine-growers should cede to the defendants certain land, where they could live without encroaching on the vineyards. the plaintiffs agreed to this compromise, with the proviso that, in default of the defendants accepting the terms offered them, the judge would order that the vineyards should be respected by the beetles under certain penalties. the advocate for the beetles demanded time for consideration, and on the resumption of the proceedings stated that he could not accept, on behalf of his clients, the suggestion of the court, as the land proposed to be given up to them was barren, and afforded nothing upon which they could subsist. the court then appointed assessors to survey the land in question, and on their report that it was well wooded and provided with herbage, the conveyance was ordered to be engrossed in due form and executed. the matter was then regarded by the plaintiffs as settled; but the beetles discovered, or their advocate discovered for them, that a quarry of an ochreous earth, used as a pigment, had formerly been worked on the land conveyed to the insects, and though it had long since been worked out, some person possessed an ancient right of way to it, the exercise of which would be extremely prejudicial to them. consequently, the agreement was held to be vitiated, and the legal proceedings had to be recommenced _de novo_. how they eventually terminated cannot be told, owing to the mutilation of the documents relating to the proceedings subsequent to . nearly a century later, legal proceedings were commenced by the inhabitants of a village in the diocese of autun against the rats by which their houses and barns were infested; the trial being famous in the annals of french jurisprudence as that in which chassanee, the celebrated jurisconsult, first achieved distinction. the rats not appearing on the first citation, chassanee, who was retained for the defence, argued that the summons was of too local a character, and that, as all the rats in the diocese of autun were interested in the case, they should be summoned throughout the diocese. this plea being admitted, the curé of every parish in the diocese was instructed to summon all the rats within its limits to attend on a day named in the summons. the day having arrived, and the rats failing to appear, chassanee said that, as all his clients were summoned, including old and young, sick and healthy, great preparations had to be made, and certain necessary arrangements effected, and he had to ask, therefore, for an extension of time. this also being granted, another day was appointed, but again not a single rat put in an appearance. chassanee then made an objection to the legality of the summons. a summons from that court, he said, implied full protection to the parties summoned, both on their way to it and on their return to their homes; and his clients, the rats, though most anxious to appear in obedience to the court, did not dare to leave their homes to come to autun, on account of the number of evil-disposed cats kept by the plaintiffs. if the latter would enter into bonds, under heavy pecuniary penalties, that their cats should not molest his clients, the summons would be immediately obeyed. the court acknowledged the validity of this plea, but the plaintiffs declined to be bound for the good behaviour of their cats. the further hearing of the case was, therefore, adjourned _sine die_, and thus chassanee gained his cause. full particulars of the proceedings are given in a latin work, written by him, and published in . devices of the sixteenth century debtors. by james c. macdonald, f.s.a., scot. in the year , a certain john scott, residenter in the good town of edinburgh, was financially in a condition of chronic decrepitude. his household goods were rapidly going to the hammer, and one creditor, bolder than his fellows, decided to attack the impecunious personality of the common debtor. writs from court and messengers of the law were severally set in motion; and on the earliest possible day one of those myrmidons served upon the debtor personally, a writ bearing the terrible title of "letters of iv forms." the "coinless" john was therein warned that if he failed forthwith to pay or satisfy the lawful debt, for which decreet has gone out, he would (unless he went to prison in a peaceful way) be declared a rebel against the king's majesty. now john reasoned with himself that payment he could not make; outlawry he rather feared; and _squalor carceris_ he could not endure. what was to be done? he had heard of the horns of the hebrew altars: how that personal safety resulted from any manual attachment thereto. was there some such boon in bonny scotland? there was holyrood, with its sanctified abbey. it was near; any port in such a storm. down the canongate, and straight to the sanctuary he ran--all to the manifest loss, injury, and damage of his creditors who followed, having got wind of this unique _hegira_ from the red-nosed city guard. in vain the creditors pleaded; equally in vain were their threats. the canny scot was warranted safe and skaithless against "all mortal." annoyed at his debtor's immunity from arrest, chagrined that any money john possessed had now been further dissipated in the abbey admission dues to its protection giving portals--each creditor turned sadly to his "buiks of compts" and superscribed over against john scott's name the expressive legend "bad debt." and this john scott became the forerunner, _de facto_, of a long line of "distressed" persons. nay more, he secured an immortality as lasting as that of the sovereign whose solemnly sounding "letters of iv forms," he spurned and left unanswered. a generation later, and another _new_ way of paying old debts is placed on record. to balance international honours it is of anglican origin. scoggan, the jester of the elizabethan court, falls into financial distress. he borrows £ from the queen--_mirabile dictu_. only a fool would have tried such a thing. it was put down as a "short loan," but it soon became clear to the royal lender that its longevity would outlast her reign. to all demands the clownish borrower smilingly cried "long live the queen," until at last his existence as court fool was in danger of being ended. but he would rather die than be evicted; and die he did. he became, theatrically speaking, defunct. the _late_ scoggan was accordingly borne, to solemn music, past the royal garden; and the queen, seeing the mournful show--and knowing nought of its hollowness--asked whose it was. "scoggan, your majesty," was the reply. "poor fellow," she exclaimed, "the £ he owed me i now freely forgive." whereupon the "defunct" sat up and declared that the royal generosity had given him a new lease of life. "thou rogue," said the queen, "thou art more rogue than fool. thou hast improved upon the plan of that john scott, who, in the reign of my late cousin of scotland, as sir james melvil tells me, got rid of the oldest debt and the longest loan." laws relating to the gipsies. by william e. a. axon, f.r.s.l. early in the fifteenth century the gipsies made their appearance in europe, and as strangers were not favourably regarded in those days the advent of these dark-skinned people, speaking a language of their own, dressing in a picturesque, but uncommon costume, and having their own rulers, and their own code of morals, and owning no allegiance to the laws of the land in which they sojourned, naturally attracted attention. at first some credence was given to their high-sounding pretensions, and the dukes, counts, and lords of lesser egypt received safe conducts and protection under the idea that they were engaged in religious pilgrimages. but the seal of the emperor sigismund would not protect them when the term of their pretended pilgrimage had expired, nor would the manners and customs of the gipsies substantiate any special claim to sanctity or religious fervour. even the ages when the divorce was most marked between religion and morals would be staggered by the thefts, and worse outrages that were laid to their charge. sigismund's safe conducts are said to have been given not as emperor, but as king of hungary, and some of the gipsies were early employed as ironworkers in the realm of st. stephen. in king ladislaus gave a charter of protection to thomas polgar and his twenty five tents of gipsies because they had made musket bullets and other military stores for bishop sigismund at fünfkirchen, but whatever consideration may have been shewn to them in the beginning, they speedily became objects of suspicion and dislike. there is not a country in europe which has not legislated against them or endeavoured to exile them by administrative acts. their expulsion from spain was decreed in , from france in , and from various italian states about the same time. denmark, sweden, and the netherlands have also pronounced against them. the diet of augsburg in , ordered their expulsion from germany on the ground that they were spies of turkey seeking to betray the christians. this edict, though several times repeated, was non-effective. in hungary and transylvania the authorities, hopeless of getting rid of the troublesome immigrants, took strong measures to bring them into line with the rest of the population. they were prohibited from using the romany tongue, from retaining their gipsy surnames, from wandering about the country, from eating carrion, and from dealing in horses. those fit for military service were to be taken into the army, and the rest were to live and dress and deport themselves in the same manner as the peasantry of the country. these regulations were not wholly effective, but the result of the efforts put forward by maria theresa, and her successors may be seen in the sedentary gipsies of the austro-hungarian empire. at times they have been subjected to fierce persecution. in , a dreadful accusation was brought against the hungarian romanis, when more than a hundred of them were accused of murder and cannibalism. the gang were said to have lived by highway robbery and murder, and to have cooked and eaten the bodies of their victims. at frauenmark four women were beheaded, six men were hanged, two were broken on the wheel, and one was quartered alive. altogether forty-five were executed and many more were imprisoned. how much of this was suspicion substantiated by torture? the gipsies came frequently in contact with the myrmidons of the law. "as soon as the officer seizes or forces away the culprit," says grellmann, "he is surrounded by a swarm of his comrades who take unspeakable pains to procure the release of the prisoner.... when it comes to the infliction of punishment, and the malefactor receives a good number of lashes well laid on, in the public market place, a universal lamentation commences among the vile crew; each stretches his throat to cry over the agony his dear associate is constrained to suffer. this is oftener the fate of the women than of the men; for as the maintenance of the family depends most upon them, they more frequently go out for plunder." it is a noteworthy fact that grellmann writing in , has not a word of condemnation of the barbarous practice of flogging women. in england as elsewhere the earliest of these romantic people were welcomed. in , the earl of surrey entertained "gypsions" at tendring hall, suffolk, and gave them a safe-conduct. still earlier in , anthony gaginus, earl of little egypt, had a letter of recommendation from james iv. of scotland to the king of denmark. james v. bestowed a charter upon james faa, lord and earl of little egypt, by which he was privileged to execute justice upon his followers, much in the same way as the great barons were authorised to deal with their vassals. but they soon fell out of favour. in england, in the twenty-second year of henry viii. an act of parliament was passed which sets forth that there are certain outlandish people, who not profess any craft, or trade, whereby to maintain themselves, but go about in great numbers from place to place, using craft and subtlety to impose on people, making them believe that they understood the art of foretelling to men and women their good or ill fortune, by palmistry, whereby they frequently defraud people of their money, likewise are guilty of thefts and highway robberies; it is ordered that the said vagrants, commonly called egyptians, in case they remain sixteen days in the kingdom, shall forfeit their goods and chattels to the king and be further liable to imprisonment. in , cromwell writes to the lord president of the marches of wales, that the "gipcyans" had promised to leave the kingdom in return for a general pardon for their previous offences, and exhorts the authorities to see that their deportation is effected. many were sent to norway, but the effort to extirpate them from the kingdom entirely failed.[ ] by an act of , a penalty of £ was to be inflicted upon any one knowingly importing them. those gipsies, following "their old accustomed devlishe and noughty practises," were to be treated as felons, but exception was made in favour of such as placed themselves in the service of some "honest and able inhabitant." many were executed, but the remnant survived and managed to hold a yearly meeting at the peak cavern or kelbrook, near blackheath. still sterner was the law passed in - , which made it felony for any one born within the kingdom to join the fellowship of vagabonds calling themselves egyptians. the previous acts had referred to the gipsies as an outlandish people, but now the native born were brought equally within the meshes of this sanguinary law. "throughout the reign of elizabeth," as borrow remarks, "there was a terrible persecution of the gipsy race; far less, however, on account of the crimes which were actually committed, than from a suspicion which was entertained that they harboured amidst their companies priests and emissaries of rome." the harrying of the missionary priests was in part dictated by the spirit of religious persecution, but in a still greater degree by the conviction that they were political emissaries, aiming at the subversion of the kingdom. the priests on the english mission had often to disguise themselves, and at times may have assumed the garb of wandering beggars, but they are not likely to have consorted with the romans, whose language would be strange to them, and whose heathenish indifference to all dogmas, rites, and ceremonies, would be specially distasteful to zealous catholics. after "the spacious times" of great elizabeth, the gipsies had a rest from special oppression, though they were of course still in jeopardy from the harsh laws as to vagrancy and those minor crimes, that are their characteristic failings. romany girls were flogged for filching and fortune-telling, and romany men were hanged for horse-stealing. they were looked upon with suspicion, and it was easy enough to raise prejudice against them. this was shewn in the notorious case of elizabeth canning. she was a girl of eighteen, employed as a domestic servant at aldermanbury, and in , disappeared for four weeks. on her return she asserted that she had been abducted and detained in a loft by gipsies, who gave her only bread and water to eat. their aim she declared was to induce her to adopt an immoral life. mrs. wells, mary squires, george squires, virtue hall, fortune and judith natus, were arrested, and wells and squires were committed for trial. the proceedings, partly before henry fielding the novelist, were conducted with a laxity that seems now to be almost inconceivable. at the old bailey trial there was a remarkable conflict of evidence, but in the end mrs. wells was condemned to be burned in the hand, and mary squires to be hanged. sir christopher gascoyne then lord mayor, was satisfied that there had been a miscarriage of justice and made enquiries, a respite was obtained and finally the law officers of the crown recommended the grant of a free pardon to squires. the natural sequel was the prosecution of canning for perjury. fortune and judith natus now swore that they had slept each night in the loft where canning declared she had been imprisoned, but it was very natural that people should ask why they had not given this important evidence at the previous trial. mary squires' alibi was sworn to by thirty-eight witnesses who had seen her in dorsetshire, and was, to some extent, invalidated by twenty-seven who swore that she was in middlesex at the time. as she was too remarkable for her ugliness to be easily mistaken, there must have been some very "hard swearing." canning was convicted of perjury and transported, but the secret of her absence from new year's day, , until the th of january was never divulged. the case excited great interest, and the controversy divided the whole of the busy, idle "town," into "canningites" and "gipsyites." the tudor law ( henry viii., c. ) was repealed as "of excessive severity" in ( george iii., c. ). the later legislation provides that persons wandering in the habit and form of egyptians, and pretending to palmistry and fortune-telling, are to be deemed rogues and vagabonds ( geo. ii., c. ., geo. iv., c. xl.), and is liable to three months' imprisonment ( geo. iv., c. lxxxiii.), and encamping on a turnpike road involved a penalty of forty shillings ( geo. iv., c. cxxvi., and william iv., c. ). some of the older enactments remained on the statute book, though not enforced, until the passing of the statute law revision act of , by which many obsolete parliamentary enactments were swept away. by the famous poynings act, english laws were declared applicable to ireland. the gipsies were never common in the isle of saints, but by a special act they were, in , declared to be rogues and vagabonds ( and car. i., c. ). there are acts of the scottish parliament as early as , directed against "sorners, overliers, and masterful beggars with horse, hounds, or other goods," and that this would well describe the earlier gangs of gipsies is undeniable, but whether they were romanis or scots is a matter of controversy not easily decided in the absence of more definite evidence. a tradition of the maclellans of bombie says that the crest of the family was assumed on the slaying of the chief of a band of saracens or gipsies from ireland. the conqueror received the barony of bombie from the king as a reward. having thus restored the fortunes of the family, the young laird of bombie took for his crest a moor's head with the motto "think on." if this legend was evidence, which it is not, there were gipsy marauders in galloway in the middle of the fifteenth century. but in , we have the entry of a gift by the king of scotland of seven pounds to the "egiptianis." in the same year there is a letter already named, in which "anthonius gagino," or gawino, is recommended to the king of denmark. in , eken jacks, master of a band of gipsies, was made answerable for a robbery from a house at aberdeen. in , a similar charge was brought, but not proved, against certain friends and servants to "earl george, callet of egipt." this chieftain was one of the celebrated faa tribe. in , george and john faa were ordered by the bailies of aberdeen to remove their company and goods from the town. this is the first action of a scottish authority against the gipsies as gipsies. but, by a charter dated four days before the municipal decree, james v. confirms to "our lovit johnne faw, lord and erle of little egipt," full power to execute justice over his tribe, some of whom had rebelled and forsaken his jurisdiction. in , an act of the lords of council and session decreed the banishment of the gipsies from the realm within thirty days, because of "the gret theftes and scathis" done by them. some of them passed over the border, but not for long, and in the faas again had a charter upholding their rights of lordship against lalow and other rebels of their company. and in the next year their is a pardon to four faas for the "slachter of umquhile ninian smaill." the gipsies had the favour of the roslyn family, and it is said that sir william sinclair rescued "ane egiptian" from the gibbet in the burgh muir, "ready to be strangled," and that in gratitude the tribe used to go to roslyn yearly and act several plays in may and june. in , and again in , the gipsies were ordered to leave the realm, but the decree was never put in force. when lady foulis was tried in , one charge was that she had sent a servant to the gipsies for advice as to poison to be administered to "the young laird of fowles and the young lady balnagoune." when james vi. held a high court of justicary at holyrood in , for the reformation of enormities, the offenders to be dealt with included "the wicked and counterfeit thieves and limmers calling themselves egyptians." there were several enactments of the scottish parliament in , , , and . these were all aimed at the nomadic habits of the race, but the settled gipsies were left unmolested. "strong beggars and their children" were to be employed in common work for their whole life, and it is said that salt masters and coal masters thus made serfs of many. in , there was a special "act anent the egiptians," which declared it "lesome" for anyone to put to death any gipsy, man, woman, or child, remaining in the country after a certain date. moses faa appealed against it as a loyal subject, and found a security in david, earl of crawford. this was in , but in four of the faas were tried at edinburgh under the acts against the gipsies, and were convicted and executed on the same day. constables and justices of the peace were exhorted to put the law in force. four gipsies, who could not find securities that they would leave the kingdom, were sentenced to be hanged in , but were reprieved and probably released. in , eight were executed on the burgh muir, but the women and children were simply exiled. in , a number were condemned at haddington, the men to be hanged and _the women to be drowned_. women who had children were to be scourged and branded in the face. in the latter half of the seventeenth century many were sent to the plantations in virginia, barbadoes, and jamaica. generally, however, the stringent laws were not stringently administered, and from fear or influence of some kind the gipsies often escaped. the british gipsies in our own day find that whilst the law is dealt out to them with perfect impartiality, the social pressure is decidedly against them. at such watering-places as brighton and blackpool--to name two extremes--they tell fortunes as though there were no statutes in that case made and provided. but it is not easy for them to keep on the road. the time cannot be far off when they must live with the _gaújos_[ ] as house-dweller or perish from the land. commonwealth law and lawyers. edward peacock, f.s.a. the great civil war as it is called, that is the struggle between charles the first and his parliament, is memorable in many respects. no student of modern history can dispense with some knowledge of it, and the more the better, for it was the result of many things which had happened in the far distant past, and we may safely say that the great french revolution, which produced some good, and such an incalculable amount of evil would have run a far different course to that which it did, had not the political ideals of the men who took part in that terrible conflict been deeply influenced by what had taken place in england a century and a half before. as to the civil wars which had occurred in england in previous days, little need be said. they were either dynastic--the struggle of one man or one family against another--or they were religious revolts against the tudors, by those who vainly endeavoured to re-establish the old order of things in opposition to the will of the reigning monarch and the political servants who supported the throne. the struggle between charles and the long parliament was far different from this. that religion in some degree entered into the conflict which was raging in men's mind long ere the storm burst it would be childish to deny, but it was not so much, except in the case of a very few fanatics, a conflict between different forms of faith as because a great number of the english gentry, and almost the whole of the mercantile class, which had then become a great power, felt that they had the best reasons for believing that it was the deliberate intention of the king and the desperate persons who advised him, to levy taxes without the consent of parliament. this may occasionally have been done in former reigns, but it is the opinion of most of those who have studied the subject in latter days, so far as we can see, without prejudice, that in every case it was illegal. whether this be so or not, it must be remembered that times were in the days of charles the first, far different from what his predecessors the plantagenets and tudors had known. a great middle class had arisen partly by the division of property consequent on the dispersion of the monastic lands, and partly also by the break up of the vast feudal estates, some of which had fallen into the hands of the crown by confiscation, others been sold by their owners to pay for their own personal extravagence. though murmurs had existed for many years, it was not until the memorable ship-money tax was proposed that affairs became really grave. had england been threatened by an invasion such as the spanish armada, there can be no doubt that a mere illegality in the mode of levying taxes to meet the emergency would have been regarded as of little account, but in the present case there was no overwhelming need, and it must be borne in mind that to add to the national irritation the two first stuarts were almost uniformally unsuccessful in their foreign wars. it is to attorney general noy that we owe the arbitrary ship-money tax. he was a dull, dry, legal antiquary of considerable ability, whose works, such as his _treatise concerning tenures and estates_; _the compleat lawyer_; _the rights of the crown_, and others of a like character, are yet worth poring over by studious persons. such a man was well fitted for historical research, no one of his time could have edited and annotated _the year books_ more efficiently, but he had no conception of the times in which he lived, the narrow legal lore which filled his mind produced sheer muddle-headedness, when called upon to confront an arbitrary king face to face with an indignant people. that there was less to be said against this form of royal taxation than any other that legal ingenuity could light upon must be admitted, but as events shewed the course he advised the king to take, was little short of madness. john hampden, who represented one of the oldest and most highly respected races of the english gentry--nobles as they would be called in any land but our own--set the example of refusing to pay this unjust levy. the trial lasted upwards of three weeks, and the men accounted most learned in the law were employed in the case. sir john bankes, the owner of corfe castle, sir edward littleton, and others were for the king. oliver saint john and mr. holborn were for hampden. concerning holborn little seems to be known, but saint john made for himself a great name. his speeches are marvellously learned, shewing an amount of reading which is simply wonderful when we call to mind that in those days all our national records were unprinted, and almost all of them without calendar or index of any sort. it must, however, be remembered that in those days lawyers of both branches of the profession were well acquainted not only with the language in which our records were written, but also with the hands employed at various periods, and the elaborate system of contraction used in representing the words. a full report of this memorable trial is to be found in rushworth's _historical collections_, volume ii. parts and . carlyle in his _letters and speeches of oliver cromwell_, in the emphatic diction he was accustomed to use says that saint john was "a dark, tough man of the toughness of leather,"[ ] but he does not dwell on his great learning and general ability, as he ought to have done. that saint john's heart was in his work for his client we are well assured. that from a legal point of view, hampden was his only client, we well know, but as a matter of fact, it is no exaggeration to say that he represented the people of england. the decision went in favour of the crown, which was from the first a foregone conclusion. it was a legal victory, but like many lesser victories won before and since success was the sure road to ruin. the sum contended for was absurdly small--twenty shillings only--but on that pound piece hung all our liberties; whether we were to continue a free people or whether we were to have our liberties filched away from us, as had already been the case in france and spain. a sullen discontent brooded over the land, there was no rioting, but in hall and castle, country parsonage and bar-parlour, grave men were shaking their heads and asking what was to come next, all knew that a storm was brewing, the only question was when and where it would burst. events changed rapidly, and saint john though he took no very prominent part in the party struggles ere the war broke out, was undoubtedly the chief legal adviser of those who were in opposition to the faction which desired to make england a despotic monarchy. such was the case during the war which ended in the tragic death of the king, and the establishment of a republican form of government under the name of the commonwealth. saint john once again appears in a public manner which indicates that he was a brave man who had no more fear of the pistol and dagger of the assassin, than he had of the corrupt dealings of those who for a time, to their own imminent peril had misgoverned our country. this time we find him sent by the commonwealth as ambassador to the seven united provinces, then as now commonly called holland, on account of the two provinces of north and south holland, being by far the most influential states in that republic. the dutch though republicans themselves, had during the latter part of our civil war shewn sympathy with the cause of the royalists. after the execution of the king, this feeling became naturally much intensified. on the other hand our newly established republic was for many reasons both of politics and religion very desirous of being on good terms with a sister commonwealth so very near at hand. to explain matters and perhaps to settle the heads of a definite treaty, the english government sent isaac doreslaus, or doorslaer as their ambassador. he was by birth a dutchman and a very learned lawyer. he had come to this country before, the war broke out in . he was then made, probably through the influence of his friend sir henry mildmay, "advocate of the army."[ ] his great knowledge of civil law, which had been much neglected in england in times subsequent to the reformation, rendered him of great service in his new position of judge advocate of the army. for the same reason he soon afterwards was created one of the judges of the admiralty court. he became especially hateful to the royalists from his having assisted in preparing the charges against charles the first. in may, , he sailed for holland as envoy of the english government to the hague. he had only spent a short time there, when, while at supper in the witte zwaan (white swan) inn, some five or six ruffians with their faces hidden by masks, rushed into the room where he, in company with eleven other guests were sitting. two of these wretches made a murderous attack on a dutch gentleman of the company, mistaking him for dorislaus. finding out their error they set upon the envoy and slew him with many wounds, crying out as they did so, "thus dies one of the king's judges." the leader of this execrable gang was col. walter whitford, son of walter whitford, d.d. the murderer received a pension for this "generous action"[ ] after the restoration. the english parliament gave their faithful servant a magnificent funeral in westminster abbey, june , , but when charles the second ascended the throne, his body was disturbed. his dust rests along with that of admiral blake and other patriots in a pit somewhere in saint margaret's churchyard.[ ] dorislaus, though a foreigner, ought to rank among our great english lawyers, for his services were devoted entirely to his adopted country. whatever our opinions may be as to those differences which were the forerunners of so much bloodshed and crime, we must bear in mind that many of the foremost men on both sides were actuated by the highest principles of honour. the study of canon law had been prohibited in the preceding century, and the civil law with which it has so intimate a connection, though not made contraband, was so much discouraged that it is no exaggeration to say that the knowledge of it was confined to a very few. selden, whose wide grasp of mind took in almost every branch of learning as it was known in his day, is the only english lawyer we can think of who had mastered these two vast subjects. this is the more remarkable as he was of humble parentage; the son of a wandering minstrel it is said, but from the first his passion for learning overmastered all difficulties. it must, however, be borne in mind that according to the custom of those times when his abilities became known, he met with more than one generous patron. we must for a moment return to saint john who was selected in , to represent his country in holland. there was not, as there is now a trained body of men devoted to the diplomatic service. the reasons why saint john was chosen for this important office are not clear. he was a great and widely read lawyer, who we apprehend was trusted with this difficult mission, not only because the government were assured of his probity, but because the relations between holland and this country depended on many subtile antiquarian details which a mere student of the laws as they were then, would have been unable to unravel. the basis of the sea codes by which the various nations of christendom professed to be ruled, was the laws of oleron (leges uliarences). they were promulgated by richard the first of england, on an island in the bay of acquitaine. how far they were ever suited for their purpose may be questioned, but it is certain that as centuries rolled on, they had though often quoted, ceased to have any restraining power, and as a consequence spain, england, holland, and other powers were guilty of constant acts of what we should now call piracy. a lasting treaty with holland, could saint john achieve it, would have been of immense advantage, but the dutch were in no mood for an alliance on equal terms. it was a brave thing for saint john to undertake so arduous a mission, for he not only run the risk of ignominous failure, but also was in no little danger from the savage desperadoes who thought they did the cause of their exiled master service by murdering the agents of the english government. when saint john arrived at the hague he was put off by slow and evasive answers, which soon shewed to him not only that his own time was being wasted, but what was to him of far more account, the honour of his country was being played with. he gave a proud, short, emphatic reply to the dutch sophistries, and at once returned home again, to cause the celebrated navigation act to be passed, forbidding any goods to be imported into england, except in english ships, or in the ships of the country where the articles were produced. this was well-nigh ruin to the trade of the dutch, who were then the great carriers of the world. in no sketch however brief of the lawyers of this disturbed time, can the name of william prynne be entirely passed over, and yet it is not as a lawyer that his name has become memorable. had he been a mere barrister at law he would long since have been forgotten, but he was an enthusiastic puritan of the presbyterian order, and a no less enthusiastic antiquary. he had probably read as many old records as saint john or selden, but had by no means their faculty of turning them to good account. he first comes prominently before us as attacking the amusements of the court, especially theatrical entertainments. for this he was proceeded against in the star chamber, sentenced to pay five thousand pounds and have his ears cut off; for an attack on episcopacy he was fined another five thousand pounds and sentenced once more to have his ears cut off. he afterwards bore a prominent part in the trial of archbishop laud. all along he continued to pour forth a deluge of pamphlets. he attacked cromwell with such boldness, that the protector felt called upon to imprison him in dunster castle, where however, his confinement was of a most easy character. he is said while there to have amused himself by arranging the lutterell charters, for which that noble home is famous. he took the side of charles the second at the restoration, and as a reward was made keeper of the records in the tower, a post for which he was peculiarly well fitted. there is probably nothing which distinguishes the periods of the commonwealth and the protectorate more markedly from other times of successful insurrection, than the very slight alteration which the new powers introduced into the laws of england. the monarchy, it is true, was swept away, but the judges went on circuit; the courts of chancery and common-law sat as usual, the lords of manors held their courts, and the justices of peace discharged their various functions as if they had been the times of profoundest peace. no confiscations took place, as had been the case in the reign of henry the eighth and his successor, except in cases where the owners had been engaged in what the state regarded as rebellion, and even with regard to those who had fought in what is known as the first war, almost everyone was let off by a heavy fine. a list of these sufferers may be seen in _a catalogue of the lords knights and gentlemen that have compounded for their estates_ (_london printed for thomas dring at the signe of the george in fleet street_, neare clifford's inne, .) the book is imperfect and very inaccurate. this is not of much consequence however, as the documents from which it is compiled known as _the royalist composition papers_, are preserved in the record office, and are open to all enquirers. those who madly engaged in what is known as the second war, had their estates confiscated by three acts of parliament of the years and . these were reprinted and indexed for the _index society_ in . these latter had their estates given back to themselves or their heirs on the restoration. it does not seem that those who were fined, except in a very few cases had any return made to them. there have been few civil wars ancient or modern wherein the unsuccessful have been so tenderly treated. yet sufferings of the poorer classes among the royalists must have been very great. next to the arbitrary conduct of the king and those immediately about his person, was the provocation which the parliamentarians thought that the established church had given, firstly because many of the bishops and clergy maintained an extreme theory of the divine right of kings, which is said first to have been taught in this country by archbishop cranmer. if this opinion were really accepted as more than a mere figure of flattering oratory, it made those who complied with it mere slaves to the sovereign, however tyrannical or wicked he might prove himself. the second ground of resentment was that they thought archbishop laud and many of the bishops and clergy, concealed roman catholics, "disguised papists," as the common expression ran. we do not believe this charge with regard to laud or most of the others so rashly accused. we are _quite sure_ it was not so if their writings are to be taken as a test of their feelings. whatever may have been the truth, there is no doubt that even the more tolerant of what may be called the low-church party feared the worst. as early as th february, , oliver cromwell, who was then member for huntingdon, made a speech in which he said, "he had heard by relation from one dr. beard ... that dr. alablaster had preached flat popery at paul's cross, and that the bishop of winchester (dr. neale), had commanded him as his diocesan, he should preach nothing to the contrary."[ ] so inflamed, however, were men's minds that as soon as the parliamentary party was strong enough, laud was indicted for high treason and beheaded. one of the first works of the parliament when strong enough, was to abolish the _book of common prayer_, and put a new compilation called the _directory_ in its place. the use of the prayer book was forbidden not only in public offices of religion, but in private houses also. for the first offence five pounds was to be levied, for the second ten, and for the third the delinquent was to suffer one year's imprisonment.[ ] whether this stringent law was rigorously inforced we cannot tell. probably in many cases the local justices would be far more lenient to the clergy who were their neighbours, that would be the legislators at westminster, whose passions were fanned by listening to the popular preachers. not content with interfering with the service-book, various acts were passed relating to "scandalous, ignorant, and insufficient ministers." that the commissioners who put these acts in force removed some evil persons we do not doubt, but if john walker's _attempt towards recovering an account of the number and sufferings of the clergy of the church of england, who were sequestered ... in the grand rebellion_, be not very grossly exaggerated, which we see no reason, to believe, many innocent persons must have had very hard treatment. the marriage laws of england were in a vague and unsatisfactory state from the reign of edward the sixth, until the commonwealth time. an attempt was made in to alter them. banns were to be published either at church or in the nearest market town on three market days, after this the marriage was to take place before a justice of peace. many entries of marriages of this kind are to be found in our parochial registers. english was made the language of the law in , but latin was restored to the place of honour it had so long held, when the restoration took place. cock-fighting in scotland. it is highly probable that the romans introduced cock-fighting into this country. it is generally believed that the sport was made popular by themistocles. on one occasion he saw two cocks fighting, and their courage greatly impressed him, and he felt such exhibitions might teach a useful lesson of bravery to those who witnessed them. periodical contests were exhibited, and were popular amongst the greeks and romans and with other nations, and were much appreciated by a large section of the inhabitants of this land. in "bygone england," by william andrews, f.r.h.s. (london ), will be found a long account of "fighting-cocks in schools." one of the earliest accounts of the pastime in england, says mr. andrews, occurs in a "description of the city of london," by william fitzstephen, who wrote in the reign of henry ii., and died in the year . he records that it was the annual custom on shrove tuesday for the boys to bring their game cocks to the schools, to turn the schoolrooms into cockpits, the masters and pupils spending the morning witnessing the birds fighting. old town accounts contain many references to this custom, for example at congleton, cheshire, is the following item:-- " . payd john wagge for dressynge the schoolhouse at the great [congleton] cockfyghte." £ s. d. hugh miller, the famous geologist, who was born in the year , in his popular volume "my schools and schoolmasters," gives a graphic account of that amusement in the cromarty grammar school where he received his education. "the school," says miller, "like almost all other grammar schools of the period in scotland, had its yearly cock-fight, preceded by two holidays and a half, during which the boys occupied themselves in collecting and bringing up the cocks. and such was the array of fighting birds mustered on the occasion, that the day of the festival from morning till night used to be spent in fighting out the battle. for weeks after it had passed, the school floor continued to retain its deeply stained blotches of blood, and the boys would be full of exciting narratives regarding the glories of gallant birds who had continued to fight until their eyes had been pecked out; or who in the moment of victory, had dropped dead in the middle of the cock-pit." miller at some length denounces the cruel sport. in england cock-fighting is prohibited by statute and vict. , , under which every person who shall in any manner encourage, aid, or assist at the fighting or baiting of any bull, bear, badger, dog, cock, or other animal, shall forfeit and pay a penalty not exceeding £ for every such offence. in scotland it was not illegal until quite recently. an act was passed in known as the "cruelty to animals (scotland) act," but the wording of the statute was found not to include the game or fighting-cock. the sport became popular and the law could not touch those that took part in the cruel amusement. it was felt to be a national scandal, and to prevent it, a short statute was passed on th may, , whereby the definition of the word _animal_ in the th section was amended by adding at the end thereof the words "or any game or fighting-cock, or other domestic fowl or bird." mr. robert bird, the genial and gifted author of "law lyrics," a volume which has been warmly welcomed by the public and the press, has made cock-fighting the subject of a clever poem. cockieleerie-law. by robert bird. _in full court, edinburgh, rd december, ._ six legal wigs, like well-plumed tappit hens, sat brooding o'er a pair of fighting cocks; while lesser wigs, begowned, and brief in hand, declaimed in flowing periods, of the fray, like ancient bards, that wanted but their harps, their wallets, ballad verse, and song, to make the very goose quills, sleeping on the bench, awake! take sides and spill each other's ink. and as they spake, a legal fog dropt down upon the learned six, and each beheld, in green mirage, born of the cloud of words, two cocks, game cocks, crop-combed, erect, and slim, with feathers dipped in crimson, gold, and blue, frill-necked, with trailing wings and spurs of steel, that on each other flew and pecked and spurred, and spurred and pecked again, until the court reeked like a cock-pit, and the crowd of wigs,-- of boyish idle wigs,--took bonnet shapes that hooded scowling brows of cursing men, who laid their bets on this bird, and on that, as, with quick panting breath and beaks agape, they pranced, flew, fought, until the oaken bar seemed spattered o'er with feathers and cock blood. at length one cock the other overthrew, and struck quick spurs into his quivering breast until he died; then he, with croaking crow, fell, wounded, bleeding, dying by his side amid the applauding cheers of thirsty throats, soon to be slaked with liquid bets, and so the battle ended, but the fog remained. a rustling of silk plumes upon the bench, five wigs bent low, and thus great solon spake-- "'twas in kilbarchan that this fight was fought, and straight the men who prompted it were ta'en, and jailed, and tried, and sentenced for the same; but now they seek release, and this their plea, that in the gracious act which says that men shall not treat brutes and beasts with cruelty, the name of "_cock_" is absent; therefore they claim full exemption for their brutish deeds, and we, vicegerents of our gentle queen, with spectacle on nose, must well explore this vital point in _cockieleerie-law_. the illumined page of history reveals cock-fighting as an ancient royal sport. the early greeks and romans in their day found pastime sweet in setting cock on cock; the sage themistocles took keen delight in battling fowls; while glorious cæsar, too, loved much to back his bird; and, furthermore, marc antony's gamecocks did always lose when pitted against cæsar's fiercer breed. king henry viii., of sainted memory! at whitehall had a special cock-pit built, wherein his royal birds made lively sport for gentle dames and all his merry knights. the most accomplished scholar of his day, squire roger ascham, tutor to queen bess, much as he loved his books, loved cocks the more, and loved them most when victors in the fight. and last of all, that great and noble duke, the conqueror of blenheim, in game birds found something that reminded him of self; and thus we see the fighting instinct strong in cocks, and other nobles of past time. "game cocks, we find, from earliest cockereldom, delight in war, as dogs to bark and bite, and raining blows upon each other's ribs do best fulfil their part of nature's plan, which built them slim and bade them love the fray; and while we hope no preference here to show,-- 'tis open question, whether rearing fowls to wring their necks, or match them in the pit, does more exalt the brute or sink the man. "but here, the cocks were armed with spurs of steel, and 'tis a subtle matter, whether they with iron shod, or spurred with native horn, do deal the deadliest blows in angry fray; and, while we have our own opinion strong! 'tis not within our province to pronounce. "if it be wrong with steel to prick a fowl, what of the spurs with which hard riders goad the bleeding sides of horses in the race, or in the steeplechase, or country hunt? and what of hares in coursing run to death? of quivering foxes torn by yelling hounds? of wheeling pigeons slaughtered for a prize? we make no mention of the common use, of otter hunting, grouse and pheasant drives. and of the sport termed _noble_, where the stag is forced upon the guns that lay him low. no doubt, two blacks can never make one white, nor multiplying blacks turn black to grey; but if to brutalise mankind be thought amiss, then there are other ways, than fighting cocks. "still that's beside our purpose, which is this-- to scan the statute, microscope in hand, and note if in its sweep humane, we see a roosting place for fighting chanticleer. and there we find, or rather fail to find, the name of "cock" among the saving list of nineteen beasts protected by the law, though thus the list concludes, "_and other kinds of animals domestic_," or like words. are we to find game cocks, domestic fowls? are we to hold that birds, are animals? our view is quite the contrary, or else there's not a beast, bird, fish, or insect but the term "domestic" would to them apply, and make it penal e'en to slay a louse. "and while, in other parts of this same act, we find "cock" followed by the general phrase, "_or other kind of animal_," we hold it bears not on the matter now in hand, but only serves to show that parliament, when brooding, clucking, hen-like, o'er this act, had cocks well in their eye, and plainly did, of purpose full, omit them from the list; and while bear-fights, bull-fights, dog-fights, and all vile sports and brutish cruelty to beasts, the spirit and the letter of the law do quite forbid, _unanimous we hold cock-fighting is a lawful use of cocks, and finding so we liberate these men_. "it will be said, this statute has been read reversely in our sister england, where it is the charter of proud chanticleer; but what of that? it alters not our mind! but only shews, that they, of feebler clay, stick not at trifles, so the end be good, and let the heart o'erbeat the legal mind; while we, of sterner stuff, fail not to find motes in the sunshine of their simple wits, and gnats to strain out of their cups of wine; for in the nice accomplishment and use of splitting hairs, and weighing feathers small, of riddling wisdom from a peck of words, we are more skilled, more subtle, more profound than our legal brethren of the south." whereat five horse-hair wigs again bowed down in low obeisance to the mighty sage, and straight the court was cleared of cocks and men. fatal links. by ernest h. rann. a consideration of the detection of crime brings forcibly to the mind the fact that officers of law have frequently to depend for success on the accidental discovery of the most trifling items and incidents. conversely the criminal section of the community who prey on the weakness or folly of their neighbours have to fear not only a knowledge of their principal movements, but the discovery of the connecting link which shall complete the chain of evidence against them. the deepest laid plot, the most cunning scheme, contains a flaw which may be fatal to their operations, to their liberty, and even their life, a flaw which no amount of previous examination may detect, a weakness which can rarely be adequately guarded against. justice and the vindication of the law, therefore, depend largely on a proper regard being paid to minor occurrences, which at first sight would seem to have no bearing whatever on the particular case under consideration. the history of crime contains numberless instances where the criminal has been brought to justice through one or other of these causes--the presence of particular hairs or threads on his clothing or on the weapon used, the direction of certain cuts on the body of his victim, the possession of trifling articles. at other times dreams have played no inconsiderable part in the vindication of the law, which has also been aided by supernatural visitants, or by the self-consciousness of the criminal. it would be impossible in a short article like the present to offer a full list of cases of this description, but a few typical instances may be taken with the object of showing how crimes, long hidden, have been discovered in the most remarkable manner. probably the best example occurred at augsburg, in . a woman named maria anna holzmann lived in a house in the town belonging to one sticht. her means only permitted her to occupy a few of the rooms, and the remaining parts of the premises were let to lodgers, among whom were george rauschmaier and joseph steiner. on good friday, april th, holzmann disappeared. she had not given notice of her intended departure, and nothing was known of it until some days later when rauschmaier and steiner also left the premises, saying that their landlady had previously quitted the house, leaving them in possession of her keys. this information, however, was not given to the police until may th. in the meantime holzmann's relatives had become apprehensive of her safety, and being reluctantly forced to the conclusion that foul play had befallen her, they decided to take an inventory of her property, as it was known that, although in humble circumstances, the woman had managed by care and economy to amass considerable wealth. it was found, however, that the greater part of her money and other valuables were missing. in spite of active enquiries no further action of importance in the matter was possible until the following january, when theresa belter, a washerwoman who also lived in the house, announced that she had found a thigh of a human body hidden in the loft. further investigations revealed a leg and the other thigh in a heap of rubbish in a corner of the room, and between the chimney and the roof, a trunk without head or limbs was discovered. an old gown and a petticoat, identified as portions of the dress of holzmann, were also brought to light, while search in rauschmaier's room disclosed other parts of a woman's body. the head was missing, but when news of the unmistakeable crime was noised abroad, a neighbouring manufacturer stated that during the preceding year he had found a skull, still bearing portions of flesh and hair, in his factory weir, but had not considered the "find" worthy of preservation. there could be no doubt that maria anna holzmann had been murdered, and the whole machinery of the law was put in motion to bring the criminals to justice. suspicion fastened itself strongly upon the two men, rauschmaier and steiner, but actual evidence against them, or indeed against anyone, was of the scantiest description until the separate pieces of the woman's body were placed together. while the left arm was being examined, a brass ring fell out of the bend of the elbow, whence it had evidently slipped from the finger of the murderer. whose was the ring? then became the all important question. rauschmaier was arrested and confessed that he had stolen and pawned several articles of holzmann's property, but he sternly denied having committed the murder. the property, including a pair of ear-rings, had been recovered from the pawnbroker's, and these, with the brass ring, were laid before the accused. he had not wit enough to discern the trap laid for him, and immediately on seeing the ornaments, he exclaimed "the ear-rings and the gold and brass rings are mine. the brass ring i always wore until within four or five weeks after easter, since when i have worn gold ones. the brass ring fits the little finger of my left hand; it slips on and off with ease." this foolish statement, and the place of the discovery of the ring, proved conclusively that rauschmaier was the murderer of the unfortunate holzmann. subsequently he made full confession of the crime, stating that the brass ring must have slipped off while he was cutting up the body. he paid the penalty of his sins with death. the "greenacre" case, which occurred in , was similar to the foregoing in many of its details. in that year, portions of the mutilated trunk of an old woman named brown were found in a house in edgeware road, wrapped in old rags and sacking. subsequently the head was discovered in regent's canal, and the limbs in a drain in the neighbourhood of camberwell. comparison between the various portions left no doubt as to the identity of the deceased, and james greenacre, whom brown intended to marry, and to whose house she had gone with all her property, was accused of the murder. a woman named gale with whom he lived was also charged with complicity in the deed. once more suspicion, however strong, was insufficient to bring the crime right home to the accused, but the discovery, among greenacre's property, of some rags corresponding with the pieces covering the mutilated remains, together with a few articles belonging to brown, turned suspicion into actual proof. greenacre was condemned to death, and his companion sentenced to transportation for life. the murder of william begbie, at edinburgh, is a remarkable case of the manner in which the author of a crime may remain long hidden, and only then be discovered by accident. begbie was a bank porter, and on november th, , he was employed to carry a parcel of notes, worth about £ , , to one of the bank's customers. on his way he had to pass through a narrow, dark, and tortuous entry, and there he was brutally murdered and the notes were stolen. although a knife, of a particular pattern, was left in the body, the murderer remained at large, and no clue to the terrible crime could be unearthed. nine months later the bundle of notes, untouched, was found hidden in a wall, but long years passed before the mystery was completely solved. in a bow street runner named denovan, while visiting leith, chanced to fall into conversation with a sailor lately returned from captivity among the french. speaking of old times the mariner accidentally mentioned that coming ashore one morning he had noticed a man like william begbie, followed by a person dressed in black and of respectable demeanour. he lost sight of them for a few moments, but later on he was surprised to see the man in black rush out of the narrow entry with a bundle under his arm. on the next day he heard of the murder, and feeling confidant that he could throw light on the crime, he informed the mate of his vessel of what he had seen. permission to go ashore was, however, refused. the vessel sailed, was captured by the french, and the sailor witness did not recover his liberty for fifteen years. denovan set to work with this important clue, and enquiries proved that the man in black was no other than a notorious criminal named mackoul, who had lived in edinburgh in . the law had claimed its own, however, previous to the sailor's disclosures. in mackoul had suffered death for robbery; still, though he was beyond punishment for his old crime in edinburgh, it was satisfactory to know that the mystery of the bank porter's death had at last been solved. probably the most notorious case in english annals of murder discovered by extraordinary means is that of the killing of daniel clarke by eugene aram. the main facts of the case are so well known that it is scarcely necessary to enter into them here. aram, assisted by a man named houseman, it may be remembered, murdered clarke for the sake of his wealth, and hid the body in st robert's cave, near knaresborough. there it remained from till , when it was accidentally discovered by a labourer. close examination led to the conclusion that the body, or rather the skeleton, was that of a murdered man, and when the mysterious and almost forgotten disappearance of clarke was remembered, steps were taken to arrest his quondam companions aram and houseman. the latter turned king's evidence, and on his testimony aram was executed, leaving a shady memory to be invested with undeserved romance by a poet and a novelist of the following century. researches into modern criminal records also reveal a number of interesting cases similar to those cited above. a few years ago a pole named lipski was convicted in london of the murder of a woman. strenuous efforts were made to obtain a pardon, on the ground that he had been wrongly convicted, but the solitary fact on which the home secretary decided to allow the law to take its course was that the door of the room had been locked in which the woman was found murdered, with lipski himself hiding under the bed. and in tracing the muswell hill murder to its authors, the police were aided in their endeavours by the discovery of a common lantern which had been left on the scene of the crime. it was supposed to belong to a relative of one of the suspected men, and in order to verify this important link in the chain of evidence, a youthful agent of the detective force was employed to spin his top in front of the supposed owner's house, engage him in conversation if possible, and obtain evidence of the ownership of the lantern. the result was completely satisfactory; the suspicions of the police were confirmed, and the murderers brought to justice, mainly, it may be said, through the lantern's silent testimony. another case of murder, which occurred in , was brought home in a singular and complete manner. a deptford gentleman, named blight, was killed by a pistol-shot, and sir astley cooper, from an examination of the victim's wounds and of the place of his murder, arrived at the opinion that none other than a left-handed man could have committed the crime. acting on this conclusion the police arrested one patch, who had been seen in the locality. when patch was asked to hold up his hand to plead the indictment, he put up his left hand. the jury brought in a verdict of guilty, and before execution the criminal made full confession of his terrible deed. dreams also have played no inconsiderable part in the discovery of crime. we have not space in the present article to notice all trials where dream-evidence has been offered to the court; a brief notice of those cases in which it has had an important bearing must suffice. the most notorious instance, of course, is that of maria martin, the victim of the red barn tragedy. after her departure from home, in order, as was supposed, to many william corder, nothing, either by way of letters, or otherwise, was heard of her, except brief mention in corder's communications. nearly twelve months passed, when mrs. martin was startled and horrified by dreaming, on three successive nights, that maria had been murdered and buried in the red barn. after much persuasion her husband and son consented to search the place, and there, in the exact spot indicated by mrs. martin as having been pointed out in her dreams, was found the body of her missing daughter, buried under the flooring in a sack. mention may also be made of the case of ulick maguire, an irish farmer, whose wife dreamed that her husband had been murdered by a disappointed lover of hers, named o'flanagan. a few days later an idiot boy, who lived in the house, was heard shrieking in terror: "shanus dhu more o'flanagan (big black james) has kilt ulick, and buried him under the new ditch at the back of the garden. i dhramed it last night, evry wurrd av it." the singular coincidence of the lad's dream with her own excited mrs. maguire's suspicions to the utmost, especially as her husband was away from home at the time. she ordered a search at the particular spot mentioned by the idiot boy, and there, to her horror, was found the body of ulick, with the skull cleft in twain. immediate request was made for "big black james." he had absconded and enlisted in the army, but on being charged with the crime he admitted his guilt, and suffered the penalty of death. in one instance, by far the most wonderful of its kind, the victim of a murder has appeared in successive dreams, and played the part of detective with admirable skill and effectiveness. a grub street victualler, named stockton, was murdered towards the close of the seventeenth century. three men were suspected of the crime, but neither of them could be discovered, and the affair seemed likely to become one of the mysteries of crime, when a mrs. greenwood dreamed that stockton, who had been a neighbour during life, had taken her to a house in thomas street, telling her that his murderer was inside. on going to the house in person mrs. greenwood was told that maynard, one of the suspected men, had gone abroad. the following night stockton appeared and showed her the features of maynard, and gave her such particulars of the man's habits and resorts that he was captured within a few hours. from maynard the names of his partners in guilt, bevel and marsh, were obtained, but again the authorities were at fault, until stockton indicated the house where marsh visited, and the yard (afterwards discovered to be the yard of marshalsea prison) in which bevel would be found. from a crowd of other prisoners mrs. greenwood identified bevel, and shortly afterwards, through her strange testimony, marsh also was arrested. then, as an old chronicle of the case affirms, stockton appeared for the last time, and thanked her for her good offices. we have given the story as it has come down through two centuries; a whole body of clergymen attested its accuracy at the time, and present-day enquirers would have great difficulty, we imagine, in conclusively proving that the murder of stockton was traced by other and less extraordinary means. closely allied to the evidence furnished by dreams, and indeed, as in the foregoing case of stockton, sometimes barely distinguishable from it, is that offered by ghosts, actually seen by witnesses in a waking, but hallucinatory, state. such evidence would scarcely be admissable in modern courts of law, but in past ages it was freely employed, and has served to bring criminals to the gallows. it must be admitted that the other testimony against the accused was strong, but in numerous instances ghosts have been instrumental in putting the officials on to a clue or track which they would most likely never have discovered by their own unaided efforts. in his "history of durham," surtees mentions the case of anne walker, who lived in , and had become engaged in an intrigue with a relative of the same name. the girl was placed for a time under the care of a friend in a neighbouring village, but one night she was removed from there by walker and a man named sharp. from that date no one saw her alive. a fortnight afterwards, graime, a fuller, was terrified by the appearance in his mill of anne walker's ghost, "dishevelled, blood-stained, and with five wounds in her head." she told him the whole story of her murder; how sharp had killed her with a collier's pick, and then thrown her body down a shaft. graime hesitated to use this strangely acquired information. apparently incensed at his delay, anne walker repeatedly appeared, and in order to rid himself of these visitations, the frightened fuller at length acquainted the authorities with his story. immediate enquiry confirmed his statements in every particular. walker and sharp were arrested, charged with the murder of the girl, found guilty, and executed, though to the last they maintained their innocence of the crime. a case, somewhat similar, has occurred even in the present century, and in matter-of-fact, new world australia, where visions might be expected to be few and far between. the friends of a well-to-do settler near sydney were surprised to hear from his steward that he had been suddenly called to england on important legal business. remembering the vast wealth of the man, and the necessity for precautions in regard to it, they accepted the statement, and also recognised the steward's control of the estate during his master's absence. what was the astonishment, however, of one of these friends, when on riding over the estate he saw the owner, whom he thought to be in england, sitting on a neighbouring stile? the figure looked at him silently and sorrowfully, then walked towards a pond and disappeared. drags were procured and the water searched, when the body of the absent owner was brought to the surface. confronted with the corpse the steward confessed that he had murdered his master at the identical stile on which the ghost had sat. pierre le loyer, a french writer on law and the supernatural, mentions in his "discours des spectres," the case of a man who mysteriously vanished, having, as was supposed, been murdered. a few weeks later the ghost of the absentee appeared to his brother, took him to a lonely spot, and there pointed out where he had been murdered and buried by his own wife and her lover. enraged at this domestic perfidy and wickedness the brother denounced his sister-in-law, and on his testimony she was condemned to be strangled and her body afterwards burned. about half a century ago a peculiar case of fraud was disclosed by remarkable means during the hearing of a law-suit in tuscany. the decision of the court turned on the point whether a certain word had been erased from a particular document of importance. chemical processes were alleged to have been employed, and acting on scientific knowledge one of the lawyers proposed that the document should be heated, as thereby a slight difference of shade or colouring between the paper and the letters supposed to have been removed might become visible. permission was given to try the experiment, and on the application of heat the important word in question immediately appeared, and the court gave a verdict in accordance with this ingeniously devised testimony. since that time the progress and development of science have enabled criminal investigation to be conducted by methods which would otherwise be impossible, and with almost unerring certainty and decision. the microscope and the spectroscope have been employed in numerous cases of murder and forgery where less subtle means of discovery would have proved useless; chemical analysis has become an important agent of detection, while photography has also rendered signal service in the cause of justice. we may not have concerned ourselves with the numerous methods by which bank-note forgeries are detected; hitherto our references have been mainly to the more serious crime of murder, and with a few instances of this character brought to light through modern science our list must close. although, generally speaking, the microscope cannot discern any difference between the blood of man and that of other mammalia, yet the merest examination suffices to show the difference between mammalian blood and that of birds, reptiles, or fishes. in the one case the red blood corpuscles are round, and without a nucleus; in the other they are oval and nucleated. on this fact the evidence for a prisoner at chelmsford charged with murder was completely rebutted. blood stains had been found on his clothes, which, according to his counsel, had been caused by chicken's blood. but the prosecution brought forward a microscopist, who stated that the blood stains were mammalian, and on this testimony the plea of the prisoner was rejected. in the following year, and at the same assizes, the testimony against a man charged with murder was strengthened by the microscopical discovery of cotton fibres on a certain weapon, which he was said to have used, while the murderers of a man who had been kicked to death were convicted on the evidence of two doctors, who found on the boots of the accused a number of hairs corresponding with the hair on the head of the victim. evidence of this kind is becoming of extreme importance. hardly a serious crime is investigated without the application of one or other of these scientific methods of detection, and with each success the career of the criminal becomes increasingly difficult and arduous, and his chances of success more remote. of remarkable discoveries of crime the microscope, the camera, and the spectroscope furnish the most subtle instances, and it is quite possible that before long other methods of investigation, founded on the most recent scientific achievements, will also be brought into operation. the phonograph and the röntgen rays are only waiting their turn to serve in the cause of justice. post-mortem trials. by george neilson. it might be thought that a man's death made an end of him, and that his mere body had no rights or duties except that of getting decently buried. the middle age had other ideas. the dead still had status and duties. continental laws recognised acts of renunciation in which a widow laid the keys on her husband's corpse, or tapped his grave with the point of a halberd. the body of a murdered person, or, it might be his hand merely, might be carried before the judge to demand vengeance.[ ] by english thirteenth century law[ ] legal possession of real estate was thought to remain in a man, not until he died, but until his body was borne forth to burial. the dead might be a very potent witness, as shewn by the ordeal of bier-right,[ ] a practice founded on the belief that the murderer's touch would cause the victim's wounds to bleed afresh. thus variously qualified to act as witness or prosecutor as occasion required, it is not surprising to find the dead as defendant also. english history[ ] remembers the strange scene enacted in the monastery of caen in , when william the conqueror lay dead there, and the ceremonials of his interment were interrupted by a weird appeal. ascelin, the son of arthur, loudly claimed as his, neither sold nor given, the land on which the church stood, and, forbidding the burial, he appealed to the dead to do him justice. more than one[ ] old english poem turned its plot round the ancient canon law, by which a burial might be delayed for debt. the dead was arrestable: a law afterwards set aside, "for death dissolved all things." but in more codes than one death did not dissolve liability for the consequences of high treason. in scotland,[ ] in the year , at the "black parliament" of scone, several scotsmen were convicted of conspiracy against king robert the bruce. most of them were drawn, hanged, and beheaded. but a scottish historian of the time tells us that roger of mowbray, one of the accused, having died before his trial, "his body was carried to the place, convicted of conspiracy, and condemned to be drawn by horses, hung on the gallows, and beheaded." it is to the credit of bruce that he did not allow the corporal part of the sentence to be carried out, although many entries in the charter rolls[ ] shew that the consequent escheats of the traitor's lands served to reward the loyalty of others. his body convicted of conspiracy! how came this singular procedure into scottish practice? in england, towards the close of the fourteenth century, although escheats were not less keenly looked after than in scotland--and that sometimes in cases[ ] where men had died unconvicted,--the purpose of attainder appears to have been effected without the expedient of calling the dead to the bar. the dead, however, was convicted. in the case of robert plesyngton,[ ] for instance, in , the judgment of parliament bore an express conviction of treason, "_noun-obstant la mort de dit roberd_." in , john, earl of salisbury, challenged for treason by lord morley, was killed before the day appointed for the duel. the court not only adjudged him a traitor,[ ] but on grounds eked out by roman law subjected his sureties in costs to his accuser--said costs including the handsome fee of s. and twelve yards of scarlet cloth to the lawyer adam of usk.[ ] in all features save perhaps that of the actual presence of the body in the trial, warrant can be found for the scottish practice in roman law. the offence of "majesty," or high treason, formed an exception to the great humane general rule that responsibility for crime ended with the criminal's breath. under the lex julia[ ] death was no defence to a charge of "majesty;" proceedings could be raised to stamp the dead man's name with the brand of treason; his kinsmen might if they chose deny and defend; but if they failed to clear him his goods were confiscated and his memory damned. there is in the annals of rome at least one instance[ ] of a death-sentence of this sort pronounced after the accused was in his grave. nor was its scope confined absolutely to high treason. the church had a quiet way of appropriating tit-bits of barbaric policy for pious uses. the emperor theodosius[ ] said that the inquisition for heresy ought to extend to death itself; and as in the crime of majesty, so in cases of heresy, it should be lawful to accuse the memory of the dead. the popes endorsed the analogy,[ ] for heretics had goods, which sometimes were worth forfeiting. the spiritual authority however was of more moment. the church claimed the power to bind and loose even after death,[ ] and a welsh twelfth century bishop did not stand alone when he carried it so far as to scourge the body of a king who had died excommunicate.[ ] on the same principle dead heretics--dead before sentence of heresy--were burnt.[ ] it was by a close following up of roman jurisprudence, with, peradventure, some added light from the law and practice of the church, that the french devised their _procés au cadavre_,[ ] by which the memory of a dead traitor was attacked. its special application was to lesemajesty described as divine and human, the former an elastic term covering offences against god and religion. allied to this latter category, though not exactly of it, was the mortal sin of suicide. self-slaughter was so deeply abhorrent to mediæval thought as not only to be reckoned more culpable, but to call for more shameful punishment, than almost any other crime. so coupling the traitor and the self-slayer in the same detestation, the law assailed both by the same strange post-mortem process, and (by methods of reasoning which voltaire was one of the first to ridicule) consigned their souls to perdition, their memories to infamy, and their bodies to the gibbet.[ ] the treatment of the suicide was peculiar in its refinements of symbolic shame. the body was, by the customary law (for example, of beaumont[ ]), to be drawn to the gibbet as cruelly as possible, _pour monstrer l'experience aux aultres_. the very door-step of the house in which he lay was to be torn up, for the dead man was not worthy to pass over it. impalement, transfixture by a stake, though well enough known on the continent as a punishment of the living, became there and in england alike, the special doom of the suicide. yet the _procés au cadavre_ had no footing in english law, and although it was already in received in scotland, we shall find reason for thinking it not wholly welcome. after the trial in before alluded to, the records in scotland are silent for over two centuries, and it is not until that the process is heard of again. in that year[ ] the heirs of one robert leslie were summoned to the court of parliament to hear his name and memory "delete and extinct," for certain points and crimes of lesemajesty, and his lands and goods forfeited to the king. legal authorities,[ ] obviously forgetful of the fourteenth century instance, follow one another in the mistake of regarding leslie's as the first of its kind. the legality of the procedure was called in question at the time. indeed, so loud was the murmur that it can still be heard in the act passed to put it to silence. "it is murmurit," says the enactment, "that it is ane noveltie to rais summondis and move sic ane actioun aganis ane persoun that is deide, howbeit the commoun law directly providis the samin."[ ] the three estates of parliament therefore on the motion of the lord advocate, declared unanimously "all in ane voce, but[ ] variance or discrepance," that the cause was just and conform to common law. in another case of the following year[ ] the charge and judgment were enrolled in the acts of parliament. the widow and the heir of the late james colville were summoned "to see and hear that the said deceased james, whilst he lived had committed the crime of lesemajesty." the deliverance of parliament as tribunal was by its terms an actual sentence upon the dead--that the deceased james "hes incurrit the panis of crime of lesemajeste" for which causes the court decerned "the memoure of the said umquhile james to be deleit," and his possessions confiscated to the crown. parliament which had unanimously voted the procedure well based in law, found that it was dangerous. it was necessary to restrict its scope. in , it is on parliamentary record[ ] that "the lordis thinkis the said act [_i.e._, of ], ower generale and prejudiciale to all the barions of this realme." this would never do:--an act prejudicial to the barons! so it became statute law in , that it should apply only to cases of grave treason, public and notorious during the offender's life, and that prosecution for the future must be raised within five years after the traitor's death. it was a reasonable restraint, not always observed. during the reigns of mary and james vi. a number of trials occurred in which this singular process was resorted to, and in some, if not all, of which the body of the dead appeared at the bar. occasionally it was embalmed for the purpose.[ ] it had been a part of the border code, prevalent on the marches of england and scotland, that an accused should, although dead, be brought to the place of judgment in person. in , the marchmen of both realms had declared the law in that sense. they said that, in any plea touching life and limb, if the defendant died the body of him should be carried to the march on the day and to the place fixed between the parties, because--concludes this remarkable provision[ ]--"no man can excuse himself by death." and in the end of the sixteenth century the borderers had not forgotten the tradition their forefathers had inherited in the thirteenth, for in , when scotsmen and englishmen were in fulfilment of their treaty obligations presenting their promised pledges, the custom was scrupulously observed on the english side. all were there,--all, though all included one that was no more.[ ] "thoughe one of the nomber were dead, yet was he brought and presented at this place." they evidently believed on the borders, which sir robert cary with some reason called[ ] an "uncristned cuntry," that a man could best prove that he was dead by attendance in person. in trials for treason this principle was pushed in some instances to strange extremes. probably one underlying reason of this, at a date so late, was to make sure that no formality should be lacking to make the forfeiture effective. but the main reason one must believe lay in its being a traditional observance. in the trial in , of the earl of gowrie and his brother for an alleged attempt on the king's life, the privy council on the preamble[ ] that it was necessary to have their corpses kept and preserved unburied, issued an act to that effect, and the treasurer's accounts contain an entry "for transporting of the corpis of gowrie and his brother." their bodies were accordingly produced at the trial, and the sentence which pronounced them guilty of treason and lesemajesty during their lifetime, declared[ ] their name, memory, and dignity extinguished, and ordained that "the dead bodeis of the saidis treatouris," should be hanged, quartered, and gibbetted. their "twa hedis," a grim diarist[ ] tells, were set upon the tolbooth, "thair to stand quhill[ ] the wind blaw thame away." the last case[ ] in the annals, in which this revolting scottish "practick" was put into effect, occurred in . robert logan, of restalrig, had been nearly three years in his grave when it was given out that he had been a party to the alleged gowrie conspiracy against king james. a process[ ] was at once taken in hand to proscribe his memory and escheat his property. as death was no excuse, neither was burial; and the ghastly form was gone through of exhuming the bones for presentation at the trial. it was a case plainly within the exception provided for in the act of , for the man was not "notourly" a traitor, he had died in repute of loyalty: but the crown was eager for a conviction. much incredulity had been rife with regard to the gowrie conspiracy. the evidences now adduced were--on the surface at any rate, although, perhaps, as many critics still think, on the surface only,--circumstantial and strong. the prosecution was therefore keenly pressed, and the reluctance of some of the judges overcome. a jocular jurist-commentator on these post-mortem trials, has remarked[ ] that the bones of a traitor could neither plead defences, nor cross-question witnesses. but in the dawn of the seventeenth century they could turn the sympathy of the court against the charge, as it appears they did in logan's case. the proofs, however, looked overwhelming, and the forfeiture was carried without a dissenting voice from the bench--from the bench, because it was, as all scots treason-trials then were, a trial by judges only, not by judge and jury. logan's memory was declared extinct and abolished, and his possessions forfeited. the judgment, however, wreaked no vengeance on the exhumed remains. humanity was asserting itself even in the trial of the dead, and that institution itself was doomed. although in disuse ever after, it did not disappear from the theory of law until , when the act anne, chapter , prescribing jury-trial for treason, assimilated the scots law on the subject to that of england, and thus brought to an unregretted end one of the most gruesome of legal traditions. island laws. by cuming walters. a very curious and interesting phase of self-government is that which is supplied by the independent legal system established in various small islands in the united kingdom. it is amusing to notice these little communities on rocky islets tenaciously preserving their ancient privileges, and revelling in the knowledge that they have a code of their own by no means in harmony with the statute law of the country of which they are an insignificant part. the tribunals and the legal processes in the channel islands, in the scilly islands, in the isle of man, and even in some of the smaller islands round the english coast, differ entirely from those established in the motherland; and any suggestion of change is warmly resented. in many cases it has not, of course, been worth while to insist on reform, inasmuch as the islands are inhabited only by a few families, who may be left in peace to settle their own differences if any occur. there are a great many scattered islets about the sinuous line of irish coast, very few of which are ever visited by strangers. the conditions of life in these isolated places are seldom investigated, and yet we find there are some remarkable survivals of old customs and relics of ancient laws. the people are independent, because they feel they are totally separated from the mainland, and possess neither the means nor the desire to cross over to it. they are in many respects a race by themselves, and their attachment to their little homes of rock is such that one of their severest punishments for offenders is to transport them to ireland. such an island is raghlin, or rathlin, six miles distant from the north-west of antrim, but might be six hundred miles, judging by the slight intercourse the handful of inhabitants has with the larger world. another such island is tory, ten miles from the donegal coast, where up to a few years ago the dwellers were unacquainted with any other law than that of the brehon code. a visitor in found them choosing their own judge, and yielding ready obedience to mandates "issued from a throne of turf." in this case, and in the case of the cape clear islanders, it was found that the threat of banishment to the mainland was severe enough to prevent serious crime. these feelings probably have been modified in more recent times, yet the intensity of the attachment of islanders to their native rock is one of the ineradicable characteristics which account for the sturdy independence manifested in their laws and customs. their little homes are miniature worlds which they prefer to govern themselves in their own way. we may take the scillies as a favourable example, where the natives cling to the system of civil government by twelve principal inhabitants forming a court presided over by a military officer. the court is held every month, and it has jurisdiction in civil suits and minor causes. the sheriff for cornwall has, or, at all events, had, no jurisdiction in the islands, though persons prosecuted for felonies (which are extremely rare) have to be relegated to the assizes at launceston. the patriarchal system has always been much in evidence in the small scotch islands, which, for the most part, are the possessions of the descendants of feudal chieftains. dr. johnson adverted to this fact on the occasion of his famous journey in the north:--"many of the smaller islands have no legal officers within them. i once asked, if a crime should be committed, by what authority the offender could be seized, and was told that the laird would exert his right; a right which he must now usurp, but which merely necessity must vindicate, and which is therefore yet exercised in lower degrees by some of the proprietors when legal process cannot be obtained." but after observing how the system operated, dr. johnson freely admitted that when the lairds were men of knowledge and virtue, the convenience of a domestic judicature was great. owing to the remoteness of some of the islands and the difficulty of gaining access to others, it was scarcely possible to bring them under the common law, and we find that in some instances the proprietors were allowed to act as magistrates by the lord-lieutenant's commission. some of the old lairds had a very effective but unjudicial method of enforcing their laws. lord seaforth, high chief of kintail, was anxious to abolish a very odious custom of woman-servitude which prevailed in the island of lewis. the men were wont to use the women as cattle, compelling them to draw boats like horses, and, among other things, to carry men across the deep and dangerous fords on their backs. this practice greatly disgusted lord seaforth, who found, however, that it was one particularly hard to check. he arrived one day on horseback at a stream which a peasant was contentedly crossing, mounted on a woman's shoulders. when the middle of the stream was reached, the laird urged his horse forward, and came up with the couple, when by vigorously laying his whip about the back of the man, he compelled him to dismount, and wade as best he could to the opposite bank. this practical indication of the laird's wishes aided considerably in producing a change. the scotch islanders are a law-abiding people, and patriarchal government sufficed. it was recorded of the inhabitants of skye that, during a period of unusual distress and semi-starvation, not a single sheep was stolen. so keen is the sense of propriety in that island that a whole family has been known to slink away, unable to bear the disgrace brought upon them by an individual delinquent. orkney and shetland once possessed all the characteristics of a separate kingdom, the laws of no other countries being imposed upon them. there was none to dispute the laird's right, and legal administration was entirely in his hands, except for the period that the islands were placed under episcopal rule. it is worth noting that the most famous of the governing bishops, robert reid (_tempus_ ), also filled the high office of president of the court of session at edinburgh, and he and his successors are said to have ruled with conspicuous mildness and equity. we may now turn to one or two english islands before devoting attention to the most important examples of all--those supplied by the isle of man and the channel islands. the isle of wight is only regarded as "separate" from hampshire for one legal purpose, so far as i have been able to ascertain. it is part of the "county of southampton" for all purposes except the land-tax payment: for this it has a separate liability. but the land-tax divisions are the most irregular, and the least uniform of any legal divisions in the country, and it is therefore not surprising that the isle of wight should in this respect be subject to peculiar usage. purbeck is one of those "isles" in england which now depend more upon tradition for their designation, than natural accordance with the geographical definition. what is remarkable is that these "isles"--such as the isle of purbeck, the isle of ely, the isle of glastonbury, and the isle of meare--nearly all have certain well-established and recognised laws of their own for the little communities which dwell within their borders. the quarrymen of purbeck consider themselves a race apart, and their guild is one of the closest and strictest character. their homage is paid exclusively to the lord of the manor, and the "marblers" claim to have received a special charter from king edward. on shrove tuesday they elect their officers, and celebrate the occasion by kicking a football round the boundaries. one ancient custom observed on these occasions is to carry a pound of pepper to the lord of the manor, as an acknowledgement to him in respect to a "right of way." until comparatively recent times the government of the island was patriarchal in character. the isle of glastonbury had its "house of twelve hides" for the trial of petty cases in the locality, and tradition reports that unusually large dungeons were prepared for the immuring of those who offended in the renowned avalonian isle. the isle of man, when subject to the kings of norway, was a subordinate feudatory kingdom. it afterwards came under the dominion of the english kings, john and henry iii., but passed afterwards to the scotch. henry iv. eventually claimed the little isle, and disposed of it to the earl of northumberland, but upon this famous nobleman's attainder it went to sir john de stanley. its government seemed destined to be unsettled, however, and though the title of king was renounced by the possessors of the land, they maintained supreme and sovereign authority as to legal process. in the isle of man no english writ could be served, and as a result it became infested with smugglers and outlaws. this was unsatisfactory, and, in , the interest of the proprietor was purchased, in order that the island should be subject to the regulations of the british excise and customs. according to blackstone, than whom there could be no greater authority, the isle of man is "a distinct territory from england, and is not governed by our laws; neither doth an act of parliament extend to it unless it be particularly named therein." it is consequently a convenient refuge for debtors and outlaws, while its own roundabout and antiquated methods of procedure have been found to favour the criminal rather than to aid prosecutors and complainants. perhaps this was never more vividly illustrated than in the recent case of the murderer cooper, who profited by the cumbrous and lenient processes of manx law to the extent of getting an atrocious crime reduced to manslaughter. the laws have often been amended. prior to they were "locked up in the breasts of the deemsters," but sir john stanley found that so much injustice was being done under the pretence of law, that he ordered a promulgation to be made. but "breast laws" continued to be administered for another two centuries, until lord strange, in , commanded that the deemsters should "set down in writing, and certify what these breast laws are." in , and also in , the laws of the island were again amended, and every criminal was allowed three separate and distinct trials before different bodies. first the high bailiff hears his case, then the deemster and six jurymen, and, thirdly, if he has been committed for trial, he is brought before the governor and the deemsters. by the time the case gets to the final court it has usually been "whittled down" to the smallest possible proportions, and doubts have often been raised whether justice is not marred by misplaced and unwarranted lenity. another strange practice is that the manx advocates combine the parts of barrister and attorney. the law is hard upon debtors, who can be lodged as prisoners in castle rushen, if it is suspected that they are about to leave the island; but there are no county courts. on the other hand, there are courts of law of almost bewildering variety--the chancery court, the admiralty, the general gaol delivery, the exchequer, the ecclesiastical, the common law, the two deemsters' courts for the north and south of the island, the seneschal's court, the consistorial, the licensing, and the high bailiff's. each sheading, or subdivision, has its own coroner or sheriff, who can appoint a "lockman" as his deputy; and each parish (there are seventeen) has its own captain and a "sumner," whose duty in old times was to keep order in church and "beat all the doggs." manx law had, and perhaps to some extent still has, a similar reputation either for allowing criminals in the island to escape easily, or for permitting english criminals to remain unpunished; hence the old ribald verse which represents the devil singing-- "that little spot i cannot spare, for all my choicest friends are there." the deemster's oath is a curiosity in itself:--"i do swear that i will execute the laws of the isle justly betwixt party and party as indifferently as the herring's backbone doth lie in the midst of the fish." formerly the elective house of keys possessed judicial as well as legislative functions, but this power was taken from it by the act of . laws are initiated in the council and the tynwald court, which promulgates them, consists of the members of the council, and the house of keys, who unite for the occasion. tynwald day as described by mr. hall caine is an interesting, historic, but not an impressive ceremony. a thousand years ago the norsemen established a form of government on the island, and every fifth of july the manxman has his open-air parliament for the promulgation of laws. but it is a gala day rather than a day of business. "reluctantly i admit," writes mr. hall caine, "that the proceedings were, in themselves, long, tiresome, ineffectual, formless, unimpressive, and unpicturesque. the senior deemster, the amiable and venerable sir wm. drinkwater, read the titles of the new laws in english. then the coroner of the premier sheading, glenfaba, recited the same titles in manx. hardly anybody heard them; hardly anybody listened." the channel islands were part of the duchy of normandy, and their laws are mostly the ducal customs as set forth in an ancient book known as "le grand coustumier." acts of the english parliament do not apply to these islands unless specifically mentioned, and all causes are determined by their own courts and officers. in mr. ansted's standard work on the channel islands (revised and edited by e. toulmin nicolle, ), a long chapter is devoted to the whole subject, and it is so complete and well expressed that i venture without much alteration of phraseology to summarise its leading points. jersey and guernsey have diverged greatly from each other in their legal customs, and it is also curious to find that each of the smaller islands possesses its own particular constitutions and courts. the rights and customs of the "states," which are an outcome of the mediæval royal court, have constantly undergone modification and have been remodelled, but they retain many of the ancient characteristics. the bailiff (_bailli_), or chief magistrate, is the first civil officer in each island, and usually retains his office for life. he presides at the royal court, takes the opinions of the elected jurats, and when their voices are equal has a casting vote both in civil and criminal cases. the bailiff is not required either in jersey or guernsey to have had a legal education. he is appointed by the crown, but has usually held some position at the island bar. formerly the advocates practising in the court of jersey were nominated by the bailiff, and were limited to six in number. in , however, the bar was thrown open to every british subject who had been ten years resident in the island, and who was qualified by reason of being a member of the english bar, having taken a law degree at a french university, and having passed an examination in the island. in guernsey the advocates are also notaries, and frequently hold agencies. the judicial and legislative powers in jersey are to some extent separate, but in guernsey they are intimately associated--a fact which accounts for much of the difference in custom in the two islands. the ancient norman law contained in "le grand coustumier" dates back to the thirteenth century, was badly revised in the time of queen elizabeth, and became the code. trial by jury was established in , and the laws on the subject have undergone considerable change. there is a committing magistrate, and the trial takes place at the criminal assizes of which there are six in the year. the jury numbers twenty-four; if twenty agree, the verdict is taken; if less than twenty the prisoner is set free. minor offences are referred to a court of correctional police presided over by a magistrate who is independent of the royal court. the same magistrate presides over the court for the recovery of small debts, and there is no appeal from his decision. then there are subsidiary courts for various police purposes, while the court of héritage entertains suits regarding real estate. the arbitrary operation of these courts may have very evil results, especially for strangers who are unlearned in the peculiarities of jersey law. i find a striking example of this in a magazine of june th, , in which a hard experience is detailed with comments which appear to be fully justified by the circumstances. the writer says:-- "before leaving england i had had a serious quarrel with a former friend and medical attendant, and no long time elapsed after our arrival in the island, before this gentleman sent me in a bill of monstrous proportions--a true 'compte d'apothecaire' as the french express it. at that time i was quite ignorant of the singular constitution of jersey law, and how it placed me in the power of any man who chose to sue me whether i owed him money or not. i wrote to the doctor, refusing to pay the full amount of his claim, and referring him to a solicitor in london. he was, however, better acquainted with the jersey law than myself, as the result will show. here, before proceeding with my story, i will enter into some explanation of the law of debtor and creditor as it exists in jersey. this law enables the creditor to enforce his demands summarily, depriving the party sued of his liberty, and leaving him in gaol till the costs of his imprisonment have swelled the amount to be paid: and further, supposing the defendant ultimately gains his suit, and proves his non-liability, no damages for false imprisonment are obtainable. the law leaves him no remedy, for the plaintiff makes no affidavit; and a simple letter from england, requesting a jersey advocate to enforce payment of a claim, is enough to cast the defendant at once into prison, prior to any judicial investigation into the merits of his case. "thus, in jersey, every man (unless he be a landed proprietor) is at the mercy of every other man, both in the island and out of it. in short, one man can arrest another simply by drawing up an imaginary account on a common bit of paper, and handing it to the nearest lawyer, who will send his clerk with the sheriff's man and imprison the unfortunate victim in default of immediate payment. what is worse still, an arrest can be carried into effect, by means of a simple letter sent through the post. the exception in favour of land-owners of course includes the owners of house property, an exception which mostly benefits jersey-men, as few but natives possess property in the island. it is only a proprietor who must be sued _before_ he can be imprisoned. if the jersey laws confined the persons merely of strangers sued by the inhabitants of the island, in the arbitrary manner described, the justice of such a practice might still be defended on the plea of preventing them from leaving the island; but no excuse can be found when the jersey law is made an instrument in the hands of strangers, living out of the jurisdiction of the island, and when it is used to enforce payment of debts incurred in another place, and in which no inhabitant of the island is interested, and when (as sometimes happens) it is employed as a means of extortion. in the first case it can be urged that, at least, it gives protection to the islander, which may be all proper enough, though the system is liable to abuse. in the second, the injustice and folly of the law is flagrant. by what right or reason ought the jersey code, without previous inquiry, to deprive one man of his liberty at the demand of another, when both are strangers, and when the dispute relates to matters wholly beyond its pale, and in reference to which it has no means of obtaining information on oath? yet such is the case, and thus the jersey law is converted into a mere tool of iniquity and oppression. in speaking of this strange anomaly in jersey law, i am not referring to bills of exchange, or to securities of any sort, but merely to simple debts, free from any acknowledgment or signature whatever. in any other court, such claims would not be entertained for a moment. surely the law is barbarous enough for the people of jersey, without its consequences being extended beyond its circumference. but, as matters stand at present, the case stands thus: a and b fall out together. now b is a rogue. they go to law together, and b demands of a more than he is entitled to. the courts in england are about to decide upon the merits of the case. meanwhile b learns that a is gone to jersey for a short time on business, perhaps connected with this very affair, such, for instance, as looking up an important witness. what does b do? he immediately sends off a letter enclosing his little account to a jersey lawyer, instructing him to demand payment or lock up a forthwith. the lawyer obeys, of course; a storms--protests--all in vain. he is incarcerated, and is told he may explain as much as he likes afterwards; but, in the meantime, must go to prison, or _pay_. at last poor a, whose liberty is important to him, wearied with the delays which it is the interest of the jersey lawyers to raise in his suit for judgment, pays the demand into court (au greffe) to be adjudicated on--costs of law, costs of imprisonment and all. the latter item includes s. every time the prison door is opened to let him pass on his way to court--a journey he has too often to perform without much approach to a _dénoûment_, and whither he is obliged to go under escort like a criminal; and this process is repeated several times, without the cause even being called on for hearing. worst of all, when a comes out, he has to decide upon the merits of the case. meanwhile no remedy against b, who, of course, being satisfied, withdraws his suit at home." another seeming anomalous process may be cited. an appeal lies from some of the small courts to the full court, or _nombre supérieur_, but the jurats who sit in the court of first instance are not debarred from sitting in the full court when an appeal from their own judgment is being heard! all the proceedings are carried on in the french language, which is again extremely inconvenient for the english residents. the bailiff comments on the evidence and on the arguments of the pleaders, collects the opinion of the jurats, and delivers judgment. in guernsey the decisions are given in private. "pleadings in these courts are very simple," says mr. ansted. "the plaintiff must serve on the defendant a summons or declaration, setting forth the nature of his claim, and in some cases the reasons on which it is grounded are added. if not sufficiently definite the declaration is sent back by the court for amendment. if the defendant means to plead any objections by way of demurrer or special plea, these are at once heard and disposed of. if the parties join issue on the merits of the case, the court hears the parties, or their counsel, and decides. if the case be intricate the parties are sometimes sent before the greffier--in guernsey before one of the jurats,--who reports, condensing the matter in dispute, and presenting the points to the court for decision." trial by jury does not exist in guernsey. the court at alderney is subordinate to that of guernsey. the jurisdiction in matters of correctional police is final where the offence can be punished by a month's imprisonment or a fine not exceeding £ ; otherwise it is referred to guernsey for trial. the court of sark, which has undergone many strange vicissitudes since its institution in , consists of the seneschal, or judge, the prévôt and the greffier, all appointed by the feudal lord, or seigneur. the seneschal is an absolute authority in small cases, but his right of punishment is limited to the narrow bounds of inflicting a fine of about four shillings, and of sentencing to three days' imprisonment. all cases demanding severer treatment are relegated to the guernsey courts. enough has been said to show that mr. ansted was justified in declaring that though the islanders were unfitted by their habits and education for any radical change in their peculiar institutions, yet "the practice of the law courts both in jersey and guernsey has long been felt to be in many cases cumbrous, not to say objectionable. indeed, where so much that is personal interferes in the administration of justice, and where personal and family influence cannot but be felt, it is not astonishing that reasonable complaints are sometimes heard." three times during the present century royal commissions have enquired into jersey law, but their recommendations have been systematically ignored. no remedies have been carried out, and the islanders cling with extraordinary pertinacity to customs which are notoriously abused and to priveleges which are opposed to fair-dealing. the channel islands and the isle of man are standing evidence of the danger incurred by such independence of legal authority as they have hitherto been permitted to enjoy. the little inns of court. the origin of the decadent institutions located in certain grim and dreary-looking piles of building dotting the district of the inns of court proper, and known as the little inns of court, is involved in considerable obscurity. they appear to have originally held a similar position to the great seats of legal education as the halls of oxford and cambridge do to the universities. but at the present time their relation to the inns of court proper is not very clear, and the uses they serve, otherwise than as residential chambers, are just as hard to discover. this state of mistiness concerning them has existed so long that no one now seems to know anything about them, and the evidence taken more than forty years ago by a royal commission did so little to clear away the dust and cobwebs hanging about them that they still remain, in the words of lord dundreary, "things that no fellow can understand." lyon's inn has since that time been swept away to make room for the new courts of law, without any person evincing the smallest interest in its fate. concerning this institution all that could be learned by the royal commission was contained in the evidence of timothy tyrrell, who "believed" that it consisted of members or "ancients," he could not say which; he believed the terms were synonymous. there were then only himself and one other, and within his recollection there had never been more than five, and they had nothing to do beyond receiving the rents of the chambers. there were no students, and the only payment made on account of legal instruction was a sum of £ s. d. paid to the society of the inner temple for a reader; but there had been no reader since . he had heard his father say that the reader "burlesqued the things so greatly" that the ancients were disgusted, and would not have another. there was a hall, but it was used only by a debating society; and there was a kitchen attached to it, but he had never heard of a library. new inn appears to have been somewhat more alive than lyon's, though it does not seem to have done any more to advance the cause of legal education. the property is held under the society of the middle temple, by a lease of three hundred years from , at a rent of four pounds a year. among the stipulations of the lease is one allowing the lessors to hold lectures in the hall, but none had been held since , in consequence, it was believed, of the middle temple ceasing to send a reader. the lectures never numbered more than five or six in a year; and there is now no provision of any kind for legal education. samuel brown jackson, who represented the inn before the royal commission, said he knew nothing concerning any ancient deeds or documents that would throw any light on the original constitution and functions of the body. if any there were, he "supposed" they were in the custody of the treasurer. the only source of income was the rents of chambers, which then amounted to between eighteen and nineteen hundred pounds a year; and the ancients have no duties beyond the administration of the funds. concerning the origin of clement's inn, thomas gregory, the steward of the society, was unable to afford full information, but he had seen papers dating back to , when there was a conveyance by lord clare to one killett, followed by a chancery suit between the latter and the principal and ancients of the society, which resulted in a decree under which the property so conveyed became vested in the inn. some of the papers relating to the inn had been lost by fire, and "some of them," said the witness, "we can't read." the inn, he believed, was formerly a monastery, and took its name from st. clement. it had once been in connection with the inner temple, but he could find no papers showing what were the relations between the two societies, "except," he added, "that a reader comes once a term, but that was dropped for twenty years--i think till about two or three years ago, and then we applied to them ourselves, and they knew nothing at all about it; the under-treasurer said he did not know anything about the reader, and had forgotten all about it." it was the custom for the inner temple to submit three names to the ancients; and, said the witness, "we chose one; but then they said that the gentleman was out of town, or away, and that there was no time to appoint another." but no great loss seems to have resulted thereby to the cause of legal education, for it appears that all a reader had ever done was to explain some recent act of parliament to the ancients and commoners, there being no students. the inn had no library and no chapel, but as a substitute for the latter had three pews in the neighbouring church of st. clement, and also a vault, in which, said the witness, "the principals or ancients may be buried if they wish it." some remarkable evidence was given concerning staples inn, and the more remarkable for being given by edward rowland pickering, the author of a book on the subject, which publication one of the commissioners had before him while the witness was under examination. "you state here," said the commissioner, "that in the reign of henry v., or before, the society probably became an inn of chancery, and that it is a society still possessing the manuscripts of its orders and constitutions." "i am afraid," replied the witness, "that the manuscript is lost. the principal has a set of chambers which were burnt down, and his servant and two children were burnt to death, seventy years ago; and i rather think that these manuscripts might be lost." where the learned historian of the inn had obtained the materials for that work is a question which he does not appear to have been in a position to answer; for when asked whether he knew of any trace of a connection between the society and an inn of court, he replied, "certainly, i should say not. it is sixty years since i was there, boy and all." a very strange answer considering the statement in his book. during the sixty years he had been connected or acquainted with the society, he had never heard of the existence of a reader, or of any association of the inn with legal education or legal pursuits. the only connection claimed for the inn by the principal, andrew snape thorndike, was that, when a serjeant was called from gray's inn, that society invited the members of staples inn to breakfast. there is a singular provision respecting the tenure of chambers in this inn by the ancients. "a person," said this witness, "holds them for his own life, and though he may be seventy years of age, if he can come into the hall, he may surrender them to a very young man, and if that young man should live he may surrender them again at the same age." if a surrender is not made, the chambers revert to the society. barnard's inn is a very old one, and the property has been held on lease from the dean and chapter of lincoln for more than three hundred years. the society consists of a principal, nine ancients, and five companions, which latter are chosen by the ancients; but we fail to gather from the evidence of charles edward hunt, treasurer and secretary of the inn, by what principles the ancients are guided in the selection. we learn, however, that applications for admission by solicitors are not allowed. such a thing had occurred once, but it was as long ago as , and "of course," said the witness, "we refused him, and he applied to the court, and after some difficulty he got a rule _nisi_ for a mandamus. it came on to be tried before lord tenterden, and lord tenterden said it could not be granted; that we were a voluntary association, and the court had no jurisdiction." the applicant seems to have based his claim on the ground that barnard's was an inn of chancery, and that, as a solicitor, he had a right to be admitted. the matter was scarcely worth contention, as the privileges of the companions are confined to dining in hall and the chance of being made an ancient, that favoured grade being entitled to "their dinners and some little fees." the books of the society showed no trace of there ever having been any students of law connected with the inn. "the oldest thing i find," said the witness, "is that a reader came occasionally from gray's inn to read; but what he read about, or who paid him, there is no minute whatever." he did not know when a reader last came from gray's inn; he thought it was about two hundred years ago. it only remains to be told of barnard's inn that it has not even a library; there had been a few books at one time, the witness told the commission, but they were sold as useless! concerning the remaining little inns--clifford's, symond's, and furnival's--no evidence was taken. they appear to be merely residential chambers, much the same as some of those concerning which we have information in the report of the royal commission and the evidence given before it, and the chambers are far from being used exclusively by members of the legal profession. nearly sixty years ago the present writer found a retired army officer occupying chambers in clifford's, and on a later occasion made at symond's inn, the acquaintance of a curate who resided there with his wife and a young family! concerning furnival's inn, it was incidentally stated by michael doyle, who represented lincoln's inn before the royal commission, that the latter society received £ a year under a lease of the former property granted to the late henry peto for ninety-nine years, £ being for rent, and the remainder in lieu of land tax. the witness was, however, unable to give any information as to the manner in which, or the date when, the property was acquired by lincoln's inn. the inquiry by the royal commission resulted in the recommendation of some very important changes in the constitution of the little inns of court and the administration of the several properties; but these, we learn, have been modified so much in their adoption as to have been of very little value. the societies have long outlived the purposes for which they were instituted, though their principals and officials seem to attach considerable importance to their continued existence. it is probable, however, that their _raison d'étre_ being gone, they will all sooner or later go the way of lyon's inn, and become things of the past. obiter. by george neilson. the claims of the legal profession to culture were cleverly belittled by burns, when he made the new brig of ayr wax sarcastic over the town councillors of the burgh:-- "men wha grew wise priggin owre hops an' raisins, or gathered lib'ral views in bonds and seisins." bonds and seisins are certainly not the happiest intellectual feeding ground. "i assure you," said john riddell, a great peerage antiquary, "that to spend one's time in seeking for a name or a date in a bit of crabbed old writing does not improve the reasoning powers." riddell was a keen critic of cosmo innes, who subsequently had the happiness of passing the comment upon riddell's observation that "perhaps it is not in _reasoning_ that mr. riddell excels." yet the annals of the law shew many splendid examples of the union of close textual study of manuscript, with an enlarged outlook on first principles and with keen critical insight. perhaps madox was a more permanently serviceable scholar than selden. one can see from coke's margins, his infinite superiority to bacon in exact knowledge at first hand of older english law. but when all is said, we could have done much better without coke and madox than without bacon or selden. it is delightful to be able to appeal to chaucer for perhaps the most emphatic compliment to law, in respect to its capacity for literature, that it has ever received. amongst all the canterbury pilgrims, there was no weightier personage than the man of law:-- "nowher so bisy a man as he ther nas, and yet he semed bisier than he was. in termes hadde he caas and domes alle that from the tyme of king william were falle, therto he coude endyte and make a thing ther could no wight pinche at his wryting, and every statut coude he pleyn by rote." yet it was this learned and successful counsel, alone of the party, who knew the poet's works through and through, and had the list of them at his finger-ends. good master chaucer for this touch we offer hearty thanks! was it in herrick's mind when he penned his fine tribute to selden? "i, who have favoured many, come to be graced, now at last, or glorified by thee." * * * * * wits and poets have had many hard things to say in jest and in earnest about the legal profession and its work. herrick bracketed law and lawyers with diseases and doctors, in a fashion hinting that the relation of cause and effect existed between both pairs:-- "as many laws and lawyers do express, nought but a kingdom's ill-affectedness. even so those streets and houses do but show store of diseases where physicians flow." * * * * * it was an old story this linking of the practitioners of law and medicine in one yoke of abuse. the reason given for both categories in early satire is sufficiently curious. it was because they took fees! walter map declared the cistercian creed to be that no man could serve god without mammon. ancient satire equally objected to the service of man, either legally or medically, under these conditions. "the romaunt of the rose" has the traditional refrain of other strictures in verse, when it declares that "physiciens and advocates, gon right by the same yates, _yates, gates_ they selle hir science for winning. _winning, gain_ * * * * * for they nil in no maner gree _no kind of good will_ do right nought for charitee." the same idea, precisely, finds voice in the poem attributed to walter map, wherein the doctor and the lawyer come together under the lash, because no hope can be based upon either of them unless there be money in the case. "but if the marvellous man see coin, the very worst disease is quite curable, the very falsest cause just, praiseworthy, pious, true, and pleasing to god." perhaps these ancient sarcasms were keener on the leech than the lawyer. "the romaunt of the rose" goes so far as to say that if the physicians had their way of it, "everiche man shulde be seke, and though they dye, they set not a leke after: whan they the gold have take ful litel care for hem they make. they wolde that fourty were seke at onis! ye, two hundred in flesh and bonis! and yit two thousand as i gesse for to encresen her richesse." * * * * * no doubt the men of medicine would have been much more vulnerable on another line, for it was no satirist but a learned medical professor, arnauld de villeneuve, who, in the beginning of the fourteenth century, advised his students as follows:--"the seventh precaution," said he, "is of a general application. suppose that you cannot understand the case of your patient, say to him with assurance that he hath an obstruction of the liver." no legal professor surely was ever guilty of the indiscretion of _saying_ such a thing as this! * * * * * the ineradicable public prejudice against legal charges as flagrantly exorbitant is only a modified form of an older idea exemplified above that lawyers should have no fees at all. and as to this day the plain man has never fully reconciled himself to the doctrine that the lawyer is only an agent, and not called upon to sit in the first instance in judgment on his client, so in the past the professional defence of a criminal appeared a very venal transaction. "thow i have a man i-slawe, and forfetyd the kynges lawe i sal fyndyn a man of lawe wyl takyn myn peny and let me goo." * * * * * how reprehensible a thing to take fees was long reckoned admits of curious illustration. "before the end of the thirteenth century," says that never-failing authority, pollock and maitland's "history of english law," "there already exists a legal profession, a class of men who make money by representing litigants before the courts and by giving legal advice. the evolution of this class has been slow, for it has been withstood by certain ancient principles." amongst these retarding influences lay the half-religious scruple about the propriety of payment--men as usual swallowing the camel first and straining at the gnat afterwards. of course the subject had to be illuminated by monkish tales and death-bed repentances. there was, according to the carlisle friar who penned the "the chronicle of lanercost,"--writing under the year ,--a young clerk in the diocese of glasgow, whose mind "was given rather to the court of the rich than to the cure of souls. he was called adam urri, and was laically learned in the laic laws, disregarding the commands of god against the praecorialia [so in the printed text, but, query, praetorialia?] of ulpian. he used the statutes of the emperor in litigating causes, for payment of money. but when he had grown old and famous in this his wickedness, and was striving by his astuteness to entangle the affairs of a poor little widow, the divine mercy laid hold on him, assailing his body with sudden infirmity, and bringing his mind to plead (_enarraret_) more for another life." condemning utterly the lawyer's court, he turned over a new leaf, predicted the day of his own death, and died punctually conform to the prophecy, leaving an example unctuously used by the friar to teach future generations "how wide was the gulf betwixt the service of god and the vanity of this world." we shall not be far wrong in regarding, as of more historic interest, the indication of the immorality of fees, and the important reference to ulpian as an authority in the _forum causidicorum_ of thirteenth century scotland. * * * * * amongst the amiable conceptions of the middle age was the notion that the evil one often manifested a particular zeal against sin. he was regarded with a different eye from that with which we regard him, and he rewarded faith with actual appearances such as only spiritualists can now-a-days command. some of them were not very engaging, however praiseworthy may have been their object and occasion. simeon of durham, an eminently respectable contemporary author, wrote of the death of king william rufus in the year that the popular voice considered the wandering flight of tyrell's arrow a token of the "virtue and vengeance of god." and he added that about that time the devil had frequently shewn himself in the woods "and no wonder, because in those days law and justice were all but silent." the logic of this _because_, not apparent on the surface, becomes less obscure when it is remembered that in the mediæval devil the character of arch-enemy is so much subordinated to that of arch-avenger. * * * * * the direct relation of not only the saints but of the deity itself to human affairs was a conception so clear to the mediæval mind that it saw nothing irreverent in a title deed being taken in the supreme name, or in marshalling "_deus omnipotens_" at the head of the list of witnesses to a charter. this anthropomorphic practice gave occasion to one of the sharpest of walter map's jokes against the cistercians. three abbots of that order petitioning on behalf of one of their number and his abbey for the restoration of certain lands by king henry ii. as having been injuriously taken away from the claimant's abbey, represented to the king in his court that for god's sake he ought to cause the lands to be restored and they assured him and gave him god himself as their guarantor (_fidejussorem_) that if he did, god would greatly increase his honour upon earth. king henry found it difficult to resist the appeal thus made to him but called the archdeacon walter map to advise. this he did well-knowing that this counsellor did not love the cistercians, and that he might thus find a creditable way out of a tight corner. the archdeacon was equal to the occasion. "my lord," said he to the king, "they offer you a guarantor; you should hear their guarantor speak for himself." "by the eyes of god," replied henry, "it is just and conform to reason that guarantors themselves should be heard upon the matter of their guarantee." then rising with a gentle smile (not a grin, expressly says giraldus cambrensis) the shrewd monarch retired leaving the disappointed abbots covered with confusion. * * * * * of the many ties between literature and law, one, not by any means the least interesting on the list, is the quantity of legal citations, phrases, metaphors and analogies which got swept into the wide nets of the poets. amongst such scraps there are few so successful and still fewer so pathetic as one in which a metrical historian, drawing near the close, both of his days and his chronicle, figured himself as summoned on short _induciæ_ at the instance of old age to appear at a court to answer serious charges, where no help was for him save through grace and the virgin as his advocate. elde me maistreis wyth hir brevis, _elde, age_ ilke day me sare aggrevis, _brevis, writ_ scho has me maid monitioune _ilke, each_ to se for a conclusioune _quhilk, which_ the quhilk behovis to be of det; _of det, of right_ quhat term of tyme of that be set i can wyt it be na way, _wyt, know_ bot weill i wate on schort delay at a court i mon appeire fell accusationis thare til here quhare na help thare is bot grace. _bot, without_ the maikless madyn mon purchace _maikless, matchless_ that help; and to sauff my state _purchace, procure_ i haiff maid hir my advocate. _sauff, save_ androw of wyntoun's verse it must be owned was verse on the plane of a notary public, and oft the common form of legal writ supplied sorrily enough the deficiencies of his imagination. but here for once the simple dignity of the thought bore him up and carried him through. index. aberdeen, gipsies at, abjuring the realm, abjuration, abolishing right of sanctuary, adultery, penalty of, africa, ordeal in, - amphitheatre, sports of, an eye for an eye, ancient tenures, - andrews, william, cock-fighting, - anglo-saxon church, aram, eugene, ashford, mary, - asyla in greece, axon, w. e. a., sanctuaries, - ; laws relating to the gipsies, - babylonia, law of, - balance, ordeal of, barbarous punishments, - barnard's inn, beetles, trial of, begbie, william, murder of, beverley, sanctuary at, - bible law, - bible, ordeal of the, bible, weighing against, bier, ordeal of, bird, robert, cockieleerie law, - biretta, black book of hereford, black parliament, blood, laws written in, ; stains, boiling to death, book of common prayer, abolished, borough english, - breaking straws, ; rods, buccleuch, barons of, bull relating to english sanctuaries, bull, trial of, burned alive, burgess, s., bible law, - canning, elizabeth, - canon law, , castles, a centre of power, cattle stealing, channel islands, laws of the, - , - charges, prejudice against, charles i., trial of, chaucer's compliment to the law, cheltenham, manor of, chemical test, christians, early punishment of, church and ordeals, clarke, sidney w., barbarous punishments, - clement's inn, cock-fighting in scotland, - cockieleerie law, - cock, tried for laying an egg, commonwealth law and lawyers, - continental feudalism, - conveyancing symbols, - copyhold, , corsnedd, ordeal of, commandments, breaking, cross, ordeal of the crown, coventry acts, - court baron, customary court, crucifixion, dead bodies brought to place of judgment, debts, limitation of, declining knighthood, - defilement, delivery of turf or twig, deposition of kings, devices of the sixteenth century debtors, - divine right of kings, dog carrying, dogs in recognition of tenure, dream evidence, - dudley lands, durham sanctuary, , escheats, emma, queen, tried by ordeal, englishry, law of, executing gipsies, , failure to extripate gipsies from england, fatal links, - father, powers of, ferocity of forest laws, feudal lord, powers of the, feudal system, - fining jurymen, fire ordeal, flagellation, flags, rendering for tenure, forests, great, - forgery, punishments, fortune telling, france, penal laws of, - ; trials of animals in, - frankalmoign, free alms, - fridstools, , frost, thomas, trial by jury in old times, - ; trials of animals, - ; little inns of court, - furnival's inn, gavelkind, - ghosts, - gibbet, gipsy rescued from, gipsies, laws relating to the, - glove, godiva story, grand serjeantry, great civil war, greenacre case, hampden, john, hanged, drawn, and quartered, - hasp and staple symbol, - hat as a symbol, - hawaii, ordeals in, henry viii., laws against gipsies, hereford fair, heresy, heriots, - herrick on lawyers, high treason, trial for, - ; punishments for, - hindoos, ordeals of the, - holzmann, maria ann, murder of, - homage, homicide, horse, trial of, hot iron, ordeal of, , , , howlett, england, the manor and manor law, - ; ancient tenures, - hugh of avalon, ignorance, sin of, iniquities, legal, irish island laws, - isle of man, laws of the, - island laws, - jews, extortions of, jocular tenure, king's power limited, knight, service of, lanercost, the chronicle of, law under the feudal system, - law and medicine abused, - laws of the forest, - laws relating to the gipsies, - left-handed murder, letters of iv. forms, lesemajesty, crimes of, - lincoln's inn, lipski, literature and law, little inns of court, - lords, power of, lord chief justice popham, stolen by gipsies, loss of right hand, lyon's inn, macdonald, james c., devices of the sixteenth century debtors, - magna charta, , manchester, sanctuary at, , , manor and manor law, - manor, origin of, marriage in feudal times, marriage laws, altering, marrying to atone for violence, martin, maria, middle ages, ordeals of, military service, military punishments, money raised by marriage, mortal combat, - mosaic law, mutilation, a favourite mode of punishment, - muswell hill murder, neilson, george, on symbols, - ; post mortem trials, - ; obiter, - new inn, new way of paying old debts, nimrod, norman forest laws, oath, refusal to bear witness of, ; of fealty, on symbols, - oppression of gipsies under queen elizabeth, ordeals, - palace regulations, - parricide, punishment for, paul's cross, preaching at, peacock, edward, laws of the forest, - ; commonwealth law and lawyers, - peine forte et dure, - penal code, english, penn and mead, trial of, persecution of gipsies, plantations, gipsies sent to, plays acted by gipsies, pigs, trial of, , , , , pillory, , poison, , poison, ordeal, poisoning, punishment for, poor laws, post-mortem trials, - prejudice against gipsies, protecting the church in war time, - proverb, oldest, punishments under saxons, quakers, trial of, - rann, ernest h., trials in superstitious ages, - ; fatal links, - reasoning power, rebel heads on city gates, refuge, cities of, regicides, robbing travellers in feudal times, - robert de belesone, cruel acts of, robert the bruce, conspiracy, rod in scotland, roman empire in its glory, rose tenures, ruskin, jno., on coeur de lion, sacrifice, laws relating to, - sacrilege, sanctuaries, - scilly islands, laws of the, scoggan, queen's jester, - scotch islands, laws of the, - scotland, sanctuaries of, - scott, john, of edinburgh, - scutage, self-slaughter, ship-money tax, shaving the head for theft, siamese, ordeals of the, silver spear, slavery, discharge from, slaves, ill treatment of, , ; under the saxons, slaying gipsies, - sods offered at the altar, spindle on the altar, staff and baton, staples inn, star chamber, - strangulation, punishment by, straws, breaking, stocks, switzerland, trials of animals in, symond's inn, thornton, abraham, - towns amerced, traitors, exempted from the sanctuary, treason, trials for, trial by jury in old times, - trials of animals, - trials in superstitious ages, - tynwald day, usury, law of, villeinage, violating the sanctuary, , wager of battel, , walters, cuming, law under the feudal system, - ; island laws, - wand, welcoming gipsies to england, westminster, sanctuary of, whipping, ; post, william i., forest laws of, ; burial of, william the red, forest laws of, witchcraft, - wollen industry, protection of, women, free bench of, working of the sanctuary system, , footnotes: [ ] this and other documents have been collected by mr. t. j. de' massinghi, whose monagraph on "sanctuaries" (stafford, ) is the chief source of information on the subject. [ ] see andrews' "old church lore," , and the authorities there cited. [ ] the material facts in this paper up to this point are derived from _thevenin's textes relatifs aux institutions privées_ and _du cange art. investitura_. [ ] williams' "real property law." [ ] williams' "real property law." [ ] southey's common place book, th series, , p. . [ ] chapter x., verses and . [ ] ecl. ii., line . [ ] constitutional history of england, i. ed., vol. i., p. . [ ] the lord chief justice, john popham, who was born in , is said to have been stolen when a child by the gipsies. they disfigured him and placed on his arm a cabalistic mark. apparently it was a case of tattooing. but the story is discredited. [ ] _gaújo_ is the name given by the gipsies to all strangers who are not of the romany race. [ ] _edition_ , vol. i., p. . [ ] peacock. _army lists of roundheads and cavaliers_, nd edit., , p. . [ ] wood, _athenae oxon_, sub nom. [ ] john loden gollpried's _kronyck_, vol. iv., p. . van der aa, _biographisch woordenboek_, sub voce. [ ] carlyle, _letters and speeches of oliver cromwell_, vol. i., p. . [ ] henry scobell, _acts and ordinances_, , chapter . [ ] "michelet's history of france," viii., ch. . "cheruel's dictionnaire des institutions," art. "cadavre." [ ] "pollock and maitland's history of english law," ii., . bracton b, . [ ] "lea's superstition and force" (ed. ), - . [ ] "roman de rou," ii., - . [ ] "three metrical romances" (camden socy.), xxvi., . see "decretals of gregory," lib. ii., tit. , cap. , _qua fronte_; also "lyndwood's provinciale," p. . [ ] "bower's scotichronicon," ii., . "extracta e cronicis," . "scalacronica," . [ ] "robertson's index," , , , , , . [ ] "rolls of parliament," ii., . [ ] "rolls of parliament," iii., . [ ] "rolls of parliament," iii., . [ ] "chronicle of adam of usk," pp. , . [ ] "justinian's institutes," iv., . "digest," xlviii., , . "code," ix., . [ ] "tacitus," xvi., . [ ] "code," i., , . [ ] "decretals of gregory," v., , . [ ] "decretals of gregory," v., , . "lea's studies in church history," - . [ ] "haddan and stubbs's councils," i., . "lea's studies," , . [ ] "lea's chapters from the religious history of spain," , . [ ] "cheruel's dictionnaire," and "denisart's collection de decisions," art. "lesemajeste, memoire, suicide." [ ] for a curious english case of gibbetting a suicide in , see "maitland's bracton's note book," : compare "bracton," fo. . [ ] "la loy de beaumont" (reims ), p. . [ ] "acts of parliament, scotland," ii., . [ ] "mackenzie's criminal law," i., , - . "hume's law of crimes," i., . "pitcairn's criminal trials," ii., . "riddell's scottish peerages," ii., - . [ ] "acts parl. scot.," ii., . [ ] but = without. [ ] "acts parl. scot.," ii., . [ ] "acts parl. scot.," ii., . [ ] case of earl of huntly in . tytler's "hist. of scotland," iii., . [ ] "acts parl. scot.," i., . [ ] "bain's calendar of border papers," ii., . [ ] "border papers," ii., . [ ] "pitcairn's crim. trials," ii., , . [ ] pitcairn, ii., - . "acts parl. scot.," iv., . [ ] "birrel," quoted in "pitcairn," ii., . [ ] _quhill_, until. [ ] for an example in , that of francis mowbray, see "pitcairn," ii., - . [ ] a full account of the trial is given in "pitcairn," ii., - . [ ] lord hailes quoted in "pitcairn," ii., . some recent books published by william andrews & co., , farringdon avenue, london, e.c. "valuable and interesting."--_the times._ "readable as well as instructive."--_the globe._ "a valuable addition to any library."--_derbyshire times._ the bygone series. in this series the following volumes are included, and issued at s. d. each. demy vo., cloth gilt. these books have been favourably reviewed in the leading critical journals of england and america. carefully written articles by recognised authorities are included on history, castles, abbeys, biography, romantic episodes, legendary lore, traditional stories, curious customs, folk-lore, etc. etc. the works are illustrated by eminent artists, and by the reproduction of quaint pictures of the olden time. bygone berkshire, edited by rev. p. h. ditchfield, m.a., f.s.a. bygone cheshire, edited by william andrews, f.r.h.s. bygone derbyshire, edited by william andrews, f.r.h.s. bygone essex, edited by william andrews, f.r.h.s. bygone england, by william andrews, f.r.h.s. bygone kent, edited by richard stead, b.a. bygone lancashire, edited by ernest axon. bygone leicestershire, edited by william andrews, f.r.h.s. bygone lincolnshire ( vols.), edited by william andrews, f.r.h.s. bygone london, by frederick ross, f.r.h.s. bygone nottinghamshire, by william stevenson. bygone scotland, by david maxwell, c.e. bygone somersetshire, edited by cuming walters. bygone southwark, by mrs. e. boger. bygone surrey, edited by george clinch and s. w. kershaw, f.s.a. bygone warwickshire, edited by william andrews, f.r.h.s. bygone yorkshire, edited by william andrews, f.r.h.s. antiquities and curiosities of the church. edited by william andrews, f.r.h.s. _demy vo., s. d. numerous illustrations._ contents:--church history and historians--supernatural interference in church building--ecclesiastical symbolism in architecture--acoustic jars--crypts--heathen customs at christian feasts--fish and fasting--shrove-tide and lenten customs--wearing hats in church--the stool of repentance--cursing by bell, book, and candle--pulpits--church windows--alms-boxes and alms-dishes--old collecting boxes--gargoyles-- curious vanes--people and steeple rhymes--sun-dials--jack of the clock-house--games in churchyards--circular churchyards--church and churchyard charms and cures--yew trees in churchyards. "a very entertaining work."--_leeds mercury._ "a well-printed, handsome, and profusely illustrated work."--_norfolk chronicle._ "there is much curious and interesting reading in this popular volume, which moreover has a useful index."--_glasgow herald._ "the contents of the volume is exceptionally good reading, and crowded with out-of-the way, useful, and well selected information on a subject which has an undying interest."--_birmingham mercury._ "we can recommend this volume to all who are interested in the notable and curious things that relate to churches and public worship in this and other countries."--_newcastle daily journal._ "it is very handsomely got up and admirably printed, the letterpress being beautifully clear."--_lincoln mercury._ "the book is well indexed."--_daily chronicle._ "by delegating certain topics to those most capable of treating them, the editor has the satisfaction of presenting the best available information in a very attractive manner."--_dundee advertiser._ "it must not be supposed that the book is of interest only to churchmen, although primarily so, for it treats in such a skilful and instructive manner with ancient manners and customs as to make it an invaluable book of reference to all who are concerned in the seductive study of antiquarian subjects."--_chester courant._ the cross, in ritual, architecture, and art. by the rev. geo. s. tyack, b.a. _crown vo., s. d. numerous illustrations._ the author of this volume has brought together much valuable and out-of-the-way information which cannot fail to interest and instruct the reader. the work is the result of careful study, and its merits entitle it to a permanent place in public and private libraries. many beautiful illustrations add to the value of the volume. "a book of equal interest to artists, archæologists, architects, and the clergy has been written by the rev. g. s. tyack, upon 'the cross in ritual, architecture, and art.' although mr. tyack has restricted himself to this country, this work is sufficiently complete for its purpose, which is to show the manifold uses to which the cross, the symbol of the christian faith, has been put in christian lands. it treats of the cross in ritual, in church ornament, as a memorial of the dead, and in secular mason work; of preaching crosses, wayside and boundary crosses, well crosses, market crosses, and the cross in heraldry. mr. tyack has had the assistance of mr. william andrews, to whom he records his indebtedness for the use of his collection of works, notes, and pictures; but it is evident that this book has cost many years of research on his own part. it is copiously and well illustrated, lucidly ordered and written, and deserves to be widely known."--_yorkshire post._ "this is an exhaustive treatise on a most interesting subject, and mr. tyack has proved himself to be richly informed and fully qualified to deal with it. all lovers of ecclesiastical lore will find the volume instructive and suggestive, while the ordinary reader will be surprised to find that the cross in the churchyard or by the roadside has so many meanings and significances. mr. tyack divides his work into eight sections, beginning with the pre-christian cross, and then tracing its development, its adaptations, its special uses, and applications, and at all times bringing out clearly its symbolic purposes. we have the history of the cross in the church, of its use as an ornament, and of its use as a public and secular instrument; then we get a chapter on 'memorial crosses,' and another on 'wayside and boundary crosses.' the volume teems with facts, and it is evident that mr. tyack has made his study a labour of love, and spared no research in order, within the prescribed limits, to make his work complete. he has given us a valuable work of reference, and a very instructive and entertaining volume."--_birmingham daily gazette._ "an engrossing and instructive narrative."--_dundee advertiser._ "as a popular account of the cross in history, we do not know that a better book can be named."--_glasgow herald._ in the temple. by a barrister-at-law. _price one shilling._ this book opens with a chapter on the history of the temple. next follows an account of the knight templars. the story of the devil's own is given in a graphic manner. a sketch of christmas in the temple is included. in an entertaining manner the reader is informed how to become a templar, the manner of keeping terms is described, and lastly, the work concludes with a chapter on call parties. "amusing and interesting sketches."--_law times._ "pleasing gossip about the barristers' quarters."--_the gentlewoman._ "a pleasant little volume."--_the globe._ the red, red wine. by the rev. j. jackson wray. _crown vo., pp. a portrait of the author and other illustrations._ _price s. d._ "this, as its name implies, is a temperance story, and is told in the lamented author's most graphic style. we have never read anything so powerful since 'danesbury house,' and this book in stern and pathetic earnestness even excels that widely-known book. it is worthy a place in every sunday school and village library; and, as the latest utterance of one whose writings are so deservedly popular, it is sure of a welcome. it should give decision to some whose views about local option are hazy."--_joyful news._ "the story is one of remarkable power."--_the temperance record._ "an excellent and interesting story."--_the temperance chronicle._ faces on the queen's highway. by flo. jackson. _elegantly bound, crown vo., price s. d._ though oftenest to be found in a pensive mood, the writer of this very dainty volume of sketches is always very sweet and winning. she has evidently a true artist's love of nature, and in a few lines can limn an autumn landscape full of colour, and the life which is on the down slope. and she can tell a very taking story, as witness the sketch "at the inn," and "the master of white hags," and all her characters are real, live flesh-and-blood people, who do things naturally, and give very great pleasure to the reader accordingly. miss jackson's gifts are of a very high order.--_aberdeen free press._ old church lore. by william andrews, f.r.h.s. _demy vo., s. d._ contents--the right of sanctuary--the romance of trial--a fight between the mayor of hull and the archbishop of york--chapels on bridges--charter horns--tho old english sunday--the easter sepulchre--st. paul's cross--cheapside cross--the biddenden maids charity--plagues and pestilences--a king curing an abbot of indigestion--the services and customs of royal oak day--marrying in a white sheet--marrying under the gallows--kissing the bride--hot ale at weddings--marrying children--the passing bell--concerning coffins--the curfew bell--curious symbols of the saints--acrobats on steeples--a carefully prepared index--illustrated. "an interesting volume."--_the scotsman._ "a worthy work on a deeply interesting subject.... we commend this book strongly."--_european mail._ "the book is eminently readable, and may be taken up at any moment with the certainty that something suggestive or entertaining will present itself."--_glasgow citizen._ "mr. andrews' book does not contain a dull page.... deserves to meet with a very warm welcome."--_yorkshire post._ a lawyer's secrets. by herbert lloyd. author of "the children of chance," etc. _price one shilling._ "mr. herbert lloyd gives us a succession of stories which may reasonably be taken to have their origin in the experience of a lawyer practicing at large in the criminal courts. it is natural that they should be of a romantic nature; but romance is not foreign to a lawyer's consulting room, so that this fact need not be charged against this lawyer's veracity.... the stories, seven in all, cover the ground of fraud and murder, inspired by the prevailing causes of crime--greed and jealousy. our lawyer is happy in having the majority of his clients the innocent victims of false charges inspired and fostered in a great measure by their own folly; but this is a natural phase of professional experience, and we are only concerned with the fact that he generally manages it as effectively in the interests of his clients as his editor does in presenting them to his audience."--_literary world._ "a volume of entertaining stories.... the book has much the same interest as a volume of detective stories, except that putting the cases in a lawyer's mouth gives them a certain freshness. it is well written, and makes a capital volume for a railway journey."--_the scotsman._ "a very entertaining volume."--_birmingham daily gazette._ by the google books project, with a creative commons license granted by the ludwig von mises institute, auburn, alabama the law by frédéric bastiat ludwig von mises institute auburn, alabama cover: prise de la bastille ("the storming of the bastille"); . painting by jean-pierre hoiiel ( - ). permission was obtained from the bibliothèque nationale de france for its use. copyright © by the ludwig von mises institute. printed in china. published by the ludwig von mises institute west magnolia avenue, auburn, alabama isbn: - - - - this book is licensed under a creative commons license. foreword {v} anyone building a personal library of liberty must include in it a copy of frédéric bastiat's classic essay, "the law." first published in by the great french economist and journalist, it is as clear a statement as has ever been made of the original american ideal of government, as proclaimed in the declaration of independence, that the main purpose of any government is the protection of the lives, liberties, and property of its citizens. bastiat believed that all human beings possessed the god-given, natural rights of "individuality, liberty, property." "this is man," he wrote. these "three gifts from god precede all human legislation." but even in his time--writing in the late s--bastiat was alarmed over how the law had been "perverted" into an instrument of what he called legal plunder. far from protecting individual rights, the law was increasingly used to deprive one group of citizens of those rights for the benefit of another group, and especially for the benefit of the state itself. he condemned the legal plunder of protectionist {vi} tariffs, government subsidies of all kinds, progressive taxation, public schools, government "jobs" programs, minimum wage laws, welfare, usury laws, and more. bastiat's warnings of the dire effects of legal plunder are as relevant today as they were the day he first issued them. the system of legal plunder (which many now celebrate as "democracy") will erase from everyone's conscience, he wrote, the distinction between justice and injustice. the plundered classes will eventually figure out how to enter the political game and plunder their fellow man. legislation will never be guided by any principles of justice, but only by brute political force. the great french champion of liberty also forecast the corruption of education by the state. those who held "government-endowed teaching positions," he wrote, would rarely criticize legal plunder lest their government endowments be ended. the system of legal plunder would also greatly exaggerate the importance of politics in society. that would be a most unhealthy development as it would encourage even more citizens to seek to improve their own well-being not by producing goods and services for the marketplace but by plundering their fellow citizens through politics. bastiat was also wise enough to anticipate what modern economists call "rent seeking" and "rent avoidance" behavior. these two clumsy phrases refer, respectively, to the phenomena of lobbying for political favors (legal plunder), and of engaging in political activity directed at protecting oneself from being the victim of plunder seekers. (for example, the steel manufacturing industry lobbies for high tariffs on steel, whereas steel-using industries, like the automobile industry, can be expected to lobby against high tariffs on steel). {vii} the reason why modem economists are concerned about "rent seeking" is the opportunity cost involved: the more time, effort and money that is spent by businesses on conniving to manipulate politics--merely transferring wealth--the less time is spent on producing goods and services, which increases wealth. thus, legal plunder impoverishes the entire society despite the fact that a small (but politically influential) part of the society benefits from it. it is remarkable, in reading "the law," how perfectly accurate bastiat was in describing the statists of his day which, it turns out, were not much different from the statists of today or any other day. the french "socialists" of bastiat's day espoused doctrines that perverted charity, education, and morals, for one thing. true charity does not begin with the robbery of taxation, he pointed out. government schooling is inevitably an exercise in statist brainwashing, not genuine education; and it is hardly "moral" for a large gang (government) to (legally) rob one segment of the population, keep most of the loot, and share a little of it with various "needy" individuals. socialists want "to play god," bastiat observed, anticipating all the future tyrants and despots of the world who would try to remake the world in their image, whether that image would be communism, fascism, the "glorious union," or "global democracy." bastiat also observed that socialists wanted forced conformity; rigid regimentation of the population through pervasive regulation; forced equality of wealth; and dictatorship. as such, they were the mortal enemies of liberty. "dictatorship" need not involve an actual dictator. all that was needed, said bastiat, was "the laws," enacted {viii} by a congress or a parliament, that would achieve the same effect: forced conformity. bastiat was also wise to point out that the world has far too many "great men," "fathers of their countries," etc., who in reality are usually nothing but petty tyrants with a sick and compulsive desire to rule over others. the defenders of the free society should have a healthy disrespect for all such men. bastiat admired america and pointed to the america of as being as close as any society in the world to his ideal of a government that protected individual rights to life, liberty, and property. there were two major exeptions, however: the twin evils of slavery and protectionist tariffs. frédéric bastiat died on christmas eve, , and did not live to observe the convulsions that the america he admired so much would go through in the next fifteen years (and longer). it is unlikely that he would have considered the u.s. government's military invasion of the southern states in , the killing of some , citizens, and the bombing, burning, and plundering of the region's cities, towns, farms, and businesses as being consistent in any way with the protection of the lives, liberties and properties of those citizens as promised by the declaration of independence. had he lived to see all of this, he most likely would have added "legal murder" to "legal plunder" as one of the two great sins of government. he would likely have viewed the post-war republican party, with its percent average tariff rates, its massive corporate welfare schemes, and its -year campaign of genocide against the plains indians as first-rate plunderers and traitors to the american ideal. in the latter pages of "the law" bastiat offers the sage advice that what was really needed was "a science of {ix} economics" that would explain the harmony (or lack thereof) of a free society (as opposed to socialism). he made a major contribution to this end himself with the publication of his book, _economic harmonies_, which can be construed as a precursor to the modern literature of the austrian school of economics. there is no substitute for a solid understanding of the market order (and of the realities of politics) when it comes to combating the kinds of destructive socialistic schemes that plagued bastiat's day as well as ours. anyone who reads this great essay along with other free-market classics, such as henry hazlitt's economics in one lesson and murray roth-bard's power and market, will possess enough intellectual ammunition to debunk the socialist fantasies of this or any other day. thomas j. dilorenzo may thomas dilorenzo is professor of economics at loyola college in maryland and a member of the senior faculty of the mises institute. the law [ ] { } the law perverted! the law--and, in its wake, all the collective forces of the nation--the law, i say, not only diverted from its proper direction, but made to pursue one entirely contrary! the law become the tool of every kind of avarice, instead of being its check! the law guilty of that very iniquity which it was its mission to punish! truly, this is a serious fact, if it exists, and one to which i feel bound to call the attention of my fellow citizens. we hold from god the gift that, as far as we are concerned, contains all others, life--physical, intellectual, and moral life. but life cannot support itself. he who has bestowed it, has entrusted us with the care of supporting it, of developing it, and of perfecting it. to that end, he has provided us with a collection of wonderful faculties; he has plunged us into the midst of a variety of elements. it is by { } the application of our faculties to these elements that the phenomena of assimilation and of appropriation, by which life pursues the circle that has been assigned to it are realized. existence, faculties, assimilation--in other words, personality, liberty, property--this is man. it is of these three things that it may be said, apart from all demagogic subtlety, that they are anterior and superior to all human legislation. it is not because men have made laws, that personality, liberty, and property exist. on the contrary, it is because personality, liberty, and property exist beforehand, that men make laws. what, then, is law? as i have said elsewhere, it is the collective organization of the individual right to lawful defense. nature, or rather god, has bestowed upon every one of us the right to defend his person, his liberty, and his property, since these are the three constituent or preserving elements of life; elements, each of which is rendered complete by the others, and that cannot be understood without them. for what are our faculties, but the extension of our personality? and what is property, but an extension of our faculties? if every man has the right of defending, even by force, his person, his liberty, and his property, a number of men have the right to combine together to extend, to organize a common force to provide regularly for this defense. collective right, then, has its principle, its reason for existing, its lawfulness, in individual right; and the common force cannot rationally have any other end, or any other mission, than that of the isolated forces for which it is substituted. thus, as the force of an individual cannot lawfully touch the person, the liberty, or the property of { } another individual--for the same reason, the common force cannot lawfully be used to destroy the person, the liberty, or the property of individuals or of classes. for this perversion of force would be, in one case as in the other, in contradiction to our premises. for who will dare to say that force has been given to us, not to defend our rights, but to annihilate the equal rights of our brethren? and if this be not true of every individual force, acting independently, how can it be true of the collective force, which is only the organized union of isolated forces? nothing, therefore, can be more evident than this: the law is the organization of the natural right of lawful defense; it is the substitution of collective for individual forces, for the purpose of acting in the sphere in which they have a right to act, of doing what they have a right to do, to secure persons, liberties, and properties, and to maintain each in its right, so as to cause justice to reign over all. and if a people established upon this basis were to exist, it seems to me that order would prevail among them in their acts as well as in their ideas. it seems to me that such a people would have the most simple, the most economical, the least oppressive, the least to be felt, the most restrained, the most just, and, consequently, the most stable government that could be imagined, whatever its political form might be. for under such an administration, everyone would feel that he possessed all the fullness, as well as all the responsibility of his existence. so long as personal safety was ensured, so long as labor was free, and the fruits of labor secured against all unjust attacks, no one would have any difficulties to contend with in the state. when { } prosperous, we should not, it is true, have to thank the state for our success; but when unfortunate, we should no more think of taxing it with our disasters than our peasants think of attributing to it the arrival of hail or of frost. we should know it only by the inestimable blessing of safety. it may further be affirmed, that, thanks to the nonintervention of the state in private affairs, our wants and their satisfactions would develop themselves in their natural order. we should not see poor families seeking for literary instruction before they were supplied with bread. we should not see towns peopled at the expense of rural districts, nor rural districts at the expense of towns. we should not see those great displacements of capital, of labor, and of population, that legislative measures occasion; displacements that render so uncertain and precarious the very sources of existence, and thus enlarge to such an extent the responsibility of governments. unhappily, law is by no means confined to its own sphere. nor is it merely in some ambiguous and debatable views that it has left its proper sphere. it has done more than this. it has acted in direct opposition to its proper end; it has destroyed its own object; it has been employed in annihilating that justice which it ought to have established, in effacing amongst rights, that limit which it was its true mission to respect; it has placed the collective force in the service of those who wish to traffic, without risk and without scruple, in the persons, the liberty, and the property of others; it has converted plunder into a right, that it may protect it, and lawful defense into a crime, that it may punish it. how has this perversion of law been accomplished? and what has resulted from it? { } the law has been perverted through the influence of two very different causes--naked greed and misconceived philanthropy. let us speak of the former. self-preservation and development is the common aspiration of all men, in such a way that if every one enjoyed the free exercise of his faculties and the free disposition of their fruits, social progress would be incessant, uninterrupted, inevitable. but there is also another disposition which is common to them. this is to live and to develop, when they can, at the expense of one another. this is no rash imputation, emanating from a gloomy, uncharitable spirit. history bears witness to the truth of it, by the incessant wars, the migrations of races, sectarian oppressions, the universality of slavery, the frauds in trade, and the monopolies with which its annals abound. this fatal disposition has its origin in the very constitution of man--in that primitive, and universal, and invincible sentiment that urges it towards its well-being, and makes it seek to escape pain. man can only derive life and enjoyment from a perpetual search and appropriation; that is, from a perpetual application of his faculties to objects, or from labor. this is the origin of property. but also he may live and enjoy, by seizing and appropriating the productions of the faculties of his fellow men. this is the origin of plunder. now, labor being in itself a pain, and man being naturally inclined to avoid pain, it follows, and history proves it, that wherever plunder is less burdensome than labor, it prevails; and neither religion nor morality can, in this case, prevent it from prevailing. when does plunder cease, then? when it becomes more burdensome and more dangerous than labor. it is { } very evident that the proper aim of law is to oppose the fatal tendency to plunder with the powerful obstacle of collective force; that all its measures should be in favor of property, and against plunder. but the law is made, generally, by one man, or by one class of men. and as law cannot exist without the sanction and the support of a preponderant force, it must finally place this force in the hands of those who legislate. this inevitable phenomenon, combined with the fatal tendency that, we have said, exists in the heart of man, explains the almost universal perversion of law. it is easy to conceive that, instead of being a check upon injustice, it becomes its most invincible instrument. it is easy to conceive that, according to the power of the legislator, it destroys for its own profit, and in different degrees amongst the rest of the community, personal independence by slavery, liberty by oppression, and property by plunder. it is in the nature of men to rise against the injustice of which they are the victims. when, therefore, plunder is organized by law, for the profit of those who perpetrate it, all the plundered classes tend, either by peaceful or revolutionary means, to enter in some way into the manufacturing of laws. these classes, according to the degree of enlightenment at which they have arrived, may propose to themselves two very different ends, when they thus attempt the attainment of their political rights; either they may wish to put an end to lawful plunder, or they may desire to take part in it. woe to the nation where this latter thought prevails amongst the masses, at the moment when they, in their turn, seize upon the legislative power! { } up to that time, lawful plunder has been exercised by the few upon the many, as is the case in countries where the right of legislating is confined to a few hands. but now it has become universal, and the equilibrium is sought in universal plunder. the injustice that society contains, instead of being rooted out of it, is generalized. as soon as the injured classes have recovered their political rights, their first thought is not to abolish plunder (this would suppose them to possess enlightenment, which they cannot have), but to organize against the other classes, and to their own detriment, a system of reprisals--as if it was necessary, before the reign of justice arrives, that all should undergo a cruel retribution--some for their iniquity and some for their ignorance. it would be impossible, therefore, to introduce into society a greater change and a greater evil than this--the conversion of the law into an instrument of plunder. what would be the consequences of such a perversion? it would require volumes to describe them all. we must content ourselves with pointing out the most striking. in the first place, it would efface from everybody's conscience the distinction between justice and injustice. no society can exist unless the laws are respected to a certain degree, but the safest way to make them respected is to make them respectable. when law and morality are in contradiction to each other, the citizen finds himself in the cruel alternative of either losing his moral sense, or of losing his respect for the law--two evils of equal magnitude, between which it would be difficult to choose. it is so much in the nature of law to support justice that in the minds of the masses they are one and the same. there is in all of us a strong disposition to regard what is lawful as legitimate, so much so that many falsely derive { } all justice from law. it is sufficient, then, for the law to order and sanction plunder, that it may appear to many consciences just and sacred. slavery, protection, and monopoly find defenders, not only in those who profit by them, but in those who suffer by them. if you suggest a doubt as to the morality of these institutions, it is said directly--"you are a dangerous experimenter, a utopian, a theorist, a despiser of the laws; you would shake the basis upon which society rests." if you lecture upon morality, or political economy, official bodies will be found to make this request to the government: that henceforth science be taught not only with sole reference to free exchange (to liberty, property, and justice), as has been the case up to the present time, but also, and especially, with reference to the facts and legislation (contrary to liberty, property, and justice) that regulate french industry. that, in public lecterns salaried by the treasury, the professor abstain rigorously from endangering in the slightest degree the respect due to the laws now in force.[ ] so that if a law exists that sanctions slavery or monopoly, oppression or plunder, in any form whatever, it must not even be mentioned--for how can it be mentioned without damaging the respect that it inspires? still further, morality and political economy must be taught in connection with this law--that is, under the supposition that it must be just, only because it is law. { } another effect of this deplorable perversion of the law is that it gives to human passions and to political struggles, and, in general, to politics, properly so called, an exaggerated importance. i could prove this assertion in a thousand ways. but i shall confine myself, by way of an illustration, to bringing it to bear upon a subject which has of late occupied everybody's mind: universal suffrage. whatever may be thought of it by the adepts of the school of rousseau, which professes to be very far advanced, but which i consider centuries behind, universal suffrage (taking the word in its strictest sense) is not one of those sacred dogmas with respect to which examination and doubt are crimes. serious objections may be made to it. in the first place, the word universal conceals a gross sophism. there are, in france, , , inhabitants. to make the right of suffrage universal, , , electors should be reckoned. the most extended system reckons only , , . three persons out of four, then, are excluded; and more than this, they are excluded by the fourth. upon what principle is this exclusion founded? upon the principle of incapacity. universal suffrage, then, means: universal suffrage of those who are capable. in point of fact, who are the capable? are age, sex, and judicial condemnations the only conditions to which incapacity is to be attached? on taking a nearer view of the subject, we may soon perceive the reason why the right of suffrage depends upon the presumption of incapacity; the most extended system differing from the most restricted in the conditions on which this incapacity depends, and which constitutes not a difference in principle, but in degree. { } this motive is, that the elector does not stipulate for himself, but for everybody. if, as the republicans of the greek and roman tone pretend, the right of suffrage had fallen to the lot of every one at his birth, it would be an injustice to adults to prevent women and children from voting. why are they prevented? because they are presumed to be incapable. and why is incapacity a reason for exclusion? because the elector does not reap alone the responsibility of his vote; because every vote engages and affects the community at large; because the community has a right to demand some assurances, as regards the acts upon which its well-being and its existence depend. i know what might be said in answer to this. i know what might be objected. but this is not the place to settle a controversy of this kind. what i wish to observe is this, that this same controversy (in common with the greater part of political questions) that agitates, excites, and unsettles the nations, would lose almost all its importance if the law had always been what it ought to be. in fact, if law were confined to causing all persons, all liberties, and all properties to be respected--if it were merely the organization of individual right and individual defense--if it were the obstacle, the check, the chastisement opposed to all oppression, to all plunder--is it likely that we should dispute much, as citizens, on the subject of the greater or lesser universality of suffrage? is it likely that it would compromise that greatest of advantages, the public peace? is it likely that the excluded classes would not quietly wait for their turn? is it likely that the enfranchised classes would be very jealous of their privilege? and is it not clear, that the interest of all being one and the same, some would act without much inconvenience to the others? { } but if the fatal principle should come to be introduced, that, under pretense of organization, regulation, protection, or encouragement, the law may take from one party in order to give to another, help itself to the wealth acquired by all the classes that it may increase that of one class, whether that of the agriculturists, the manufacturers, the ship owners, or artists and comedians; then certainly, in this case, there is no class which may not try, and with reason, to place its hand upon the law, that would not demand with fury its right of election and eligibility, and that would overturn society rather than not obtain it. even beggars and vagabonds will prove to you that they have an incontestable title to it. they will say: we never buy wine, tobacco, or salt, without paying the tax, and a part of this tax is given by law in perquisites and gratuities to men who are richer than we are. others make use of the law to create an artificial rise in the price of bread, meat, iron, or cloth. since everybody traffics in law for his own profit, we should like to do the same. we should like to make it produce the right to assistance, which is the poor man's plunder. to effect this, we ought to be electors and legislators, that we may organize, on a large scale, alms for our own class, as you have organized, on a large scale, protection for yours. don't tell us that you will take our cause upon yourselves, and throw to us , francs to keep us quiet, like giving us a bone to pick. we have other claims, and, at any rate, we wish to stipulate for ourselves, as other classes have stipulated for themselves! how is this argument to be answered? yes, as long as it is admitted that the law may be diverted from its true mission, that it may violate property instead of securing it, { } everybody will be wanting to manufacture law, either to defend himself against plunder, or to organize it for his own profit. the political question will always be prejudicial, predominant, and absorbing; in a word, there will be fighting around the door of the legislative palace. the struggle will be no less furious within it. to be convinced of this, it is hardly necessary to look at what passes in the chambers in france and in england; it is enough to know how the question stands. is there any need to prove that this odious perversion of law is a perpetual source of hatred and discord, that it even tends to social disorganization? look at the united states. there is no country in the world where the law is kept more within its proper domain--which is, to secure to everyone his liberty and his property. therefore, there is no country in the world where social order appears to rest upon a more solid basis. nevertheless, even in the united states, there are two questions, and only two, that from the beginning have endangered political order. and what are these two questions? that of slavery and that of tariffs; that is, precisely the only two questions in which, contrary to the general spirit of this republic, law has taken the character of a plunderer. slavery is a violation, sanctioned by law, of the rights of the person. protection is a violation perpetrated by the law upon the rights of property; and certainly it is very remarkable that, in the midst of so many other debates, this double legal scourge, the sorrowful inheritance of the old world, should be the only one which can, and perhaps will, cause the rupture of the union. indeed, a more astounding fact, in the heart of society, cannot be conceived than this: that law should have become an instrument of injustice. and if this fact occasions consequences so formidable to the united { } states, where there is but one exception, what must it be with us in europe, where it is a principle--a system? mr. montalembert, adopting the thought of a famous proclamation of mr. carlier, said, "we must make war against socialism." and by socialism, according to the definition of mr. charles dupin, he meant plunder. but what plunder did he mean? for there are two sorts: extralegal and legal plunder. as to extralegal plunder, such as theft, or swindling, which is defined, foreseen, and punished by the penal code, i do not think it can be adorned by the name of socialism. it is not this that systematically threatens the foundations of society. besides, the war against this kind of plunder has not waited for the signal of mr. montalembert or mr. carlier. it has gone on since the beginning of the world; france was carrying it on long before the revolution of february--long before the appearance of socialism--with all the ceremonies of magistracy, police, gendarmerie, prisons, dungeons, and scaffolds. it is the law itself that is conducting this war, and it is to be wished, in my opinion, that the law should always maintain this attitude with respect to plunder. but this is not the case. the law sometimes takes its own part. sometimes it accomplishes it with its own hands, in order to save the parties benefited the shame, the danger, and the scruple. sometimes it places all this ceremony of magistracy, police, gendarmerie, and prisons, at the service of the plunderer, and treats the plundered party, when he defends himself, as the criminal. in a word, there is a legal plunder, and it is, no doubt, this that is meant by mr. montalembert. this plunder may be only an exceptional blemish in the legislation of a people, and in this case, the best thing { } that can be done is, without so many speeches and lamentations, to do away with it as soon as possible, notwithstanding the clamors of interested parties. but how is it to be distinguished? very easily. see whether the law takes from some persons that which belongs to them, to give to others what does not belong to them. see whether the law performs, for the profit of one citizen, and, to the injury of others, an act that this citizen cannot perform without committing a crime. abolish this law without delay; it is not merely an iniquity--it is a fertile source of iniquities, for it invites reprisals; and if you do not take care, the exceptional case will extend, multiply, and become systematic. no doubt the party benefited will exclaim loudly; he will assert his acquired rights. he will say that the state is bound to protect and encourage his industry; he will plead that it is a good thing for the state to be enriched, that it may spend the more, and thus shower down salaries upon the poor workmen. take care not to listen to this sophistry, for it is just by the systematizing of these arguments that legal plunder becomes systematized. and this is what has taken place. the delusion of the day is to enrich all classes at the expense of each other; it is to generalize plunder under pretense of organizing it. now, legal plunder may be exercised in an infinite multitude of ways. hence come an infinite multitude of plans for organization; tariffs, protection, perquisites, gratuities, encouragements, progressive taxation, free public education, right to work, right to profit, right to wages, right to assistance, right to instruments of labor, gratuity of credit, etc., etc. and it is all these plans, taken as a whole, with what they have in common, legal plunder, that takes the name of socialism. now socialism, thus defined, and forming a doctrinal body, what other war would you make against it than a { } war of doctrine? you find this doctrine false, absurd, abominable. refute it. this will be all the easier, the more false, absurd, and abominable it is. above all, if you wish to be strong, begin by rooting out of your legislation every particle of socialism which may have crept into it--and this will be no light work. mr. montalembert has been reproached with wishing to turn brute force against socialism. he ought to be exonerated from this reproach, for he has plainly said: "the war that we must make against socialism must be one that is compatible with the law, honor, and justice." but how is it that mr. montalembert does not see that he is placing himself in a vicious circle? you would oppose law to socialism. but it is the law that socialism invokes. it aspires to legal, not extralegal plunder. it is of the law itself, like monopolists of all kinds, that it wants to make an instrument; and when once it has the law on its side, how will you be able to turn the law against it? how will you place it under the power of your tribunals, your gendarmes, and of your prisons? what will you do then? you wish to prevent it from taking any part in the making of laws. you would keep it outside the legislative palace. in this you will not succeed, i venture to prophesy, so long as legal plunder is the basis of the legislation within. it is absolutely necessary that this question of legal plunder should be determined, and there are only three solutions of it: . when the few plunder the many. . when everybody plunders everybody else. . when nobody plunders anybody. partial plunder, universal plunder, absence of plunder, amongst these we have to make our choice. the law can only produce one of these results. { } partial plunder. this is the system that prevailed so long as the elective privilege was partial; a system that is resorted to, to avoid the invasion of socialism. universal plunder. we have been threatened by this system when the elective privilege has become universal; the masses having conceived the idea of making law, on the principle of legislators who had preceded them. absence of plunder. this is the principle of justice, peace, order, stability, conciliation, and of good sense, which i shall proclaim with all the force of my lungs (which is very inadequate, alas!) till the day of my death. and, in all sincerity, can anything more be required at the hands of the law? can the law, whose necessary sanction is force, be reasonably employed upon anything beyond securing to every one his right? i defy anyone to remove it from this circle without perverting it, and consequently turning force against right. and as this is the most fatal, the most illogical social perversion that can possibly be imagined, it must be admitted that the true solution, so much sought after, of the social problem, is contained in these simple words--law is organized justice. now it is important to remark, that to organize justice by law, that is to say by force, excludes the idea of organizing by law, or by force any manifestation whatever of human activity--labor, charity, agriculture, commerce, industry, instruction, the fine arts, or religion; for any one of these organizings would inevitably destroy the essential organization. how, in fact, can we imagine force encroaching upon the liberty of citizens without infringing upon justice, and so acting against its proper aim? here i am taking on the most popular prejudice of our time. it is not considered enough that law should be just, { } it must be philanthropic. it is not sufficient that it should guarantee to every citizen the free and inoffensive exercise of his faculties, applied to his physical, intellectual, and moral development; it is required to extend well-being, instruction, and morality, directly over the nation. this is the fascinating side of socialism. but, i repeat it, these two missions of the law contradict each other. we have to choose between them. a citizen cannot at the same time be free and not free. mr. de lamartine wrote to me one day thus: "your doctrine is only the half of my program; you have stopped at liberty, i go on to fraternity." i answered him: "the second part of your program will destroy the first." and in fact it is impossible for me to separate the word fraternity from the word voluntary. i cannot possibly conceive fraternity legally enforced, without liberty being legally destroyed, and justice legally trampled under foot. legal plunder has two roots: one of them, as we have already seen, is in human greed; the other is in misconceived philanthropy. before i proceed, i think i ought to explain myself upon the word plunder. i do not take it, as it often is taken, in a vague, undefined, relative, or metaphorical sense. i use it in its scientific acceptation, and as expressing the opposite idea to property. when a portion of wealth passes out of the hands of him who has acquired it, without his consent, and without compensation, to him who has not created it, whether by force or by artifice, i say that property is violated, that plunder is perpetrated. i say that this is exactly what the law ought to repress always and everywhere. if the law itself performs the action it ought to repress, i say that plunder is still perpetrated, and even, in a social point of view, under aggravated circumstances. in this case, { } however, he who profits from the plunder is not responsible for it; it is the law, the lawgiver, society itself, and this is where the political danger lies. it is to be regretted that there is something offensive in the word. i have sought in vain for another, for i would not wish at any time, and especially just now, to add an irritating word to our disagreements; therefore, whether i am believed or not, i declare that i do not mean to impugn the intentions nor the morality of anybody. i am attacking an idea that i believe to be false--a system that appears to me to be unjust; and this is so independent of intentions, that each of us profits by it without wishing it, and suffers from it without being aware of the cause. any person must write under the influence of party spirit or of fear, who would call into question the sincerity of protectionism, of socialism, and even of communism, which are one and the same plant, in three different periods of its growth. all that can be said is, that plunder is more visible by its partiality in protectionism, [ ] and by its universality in communism; whence it follows that, of the three systems, socialism is still the most vague, the most undefined, and consequently the most sincere. be that as it may, to conclude that legal plunder has one of its roots in misconceived philanthropy, is evidently to put intentions out of the question. { } with this understanding, let us examine the value, the origin, and the tendency of this popular aspiration, which pretends to realize the general good by general plunder. the socialists say, since the law organizes justice, why should it not organize labor, instruction, and religion? why? because it could not organize labor, instruction, and religion, without disorganizing justice. for remember, that law is force, and that consequently the domain of the law cannot properly extend beyond the domain of force. when law and force keep a man within the bounds of justice, they impose nothing upon him but a mere negation. they only oblige him to abstain from doing harm. they violate neither his personality, his liberty, nor his property. they only guard the personality, the liberty, the property of others. they hold themselves on the defensive; they defend the equal right of all. they fulfill a mission whose harmlessness is evident, whose utility is palpable, and whose legitimacy is not to be disputed. this is so true that, as a friend of mine once remarked to me, to say that the aim of the law is to cause justice to reign, is to use an expression that is not rigorously exact. it ought to be said, the aim of the law is to prevent injustice from reigning. in fact, it is not justice that has an existence of its own, it is injustice. the one results from the absence of the other. but when the law, through the medium of its necessary agent--force--imposes a form of labor, a method or a subject of instruction, a creed, or a worship, it is no longer negative; it acts positively upon men. it substitutes the will of the legislator for their own will, the initiative of the legislator for their own initiative. they have no need to consult, to compare, or to foresee; the law does all that for them. the intellect is for them a useless { } encumbrance; they cease to be men; they lose their personality, their liberty, their property. try to imagine a form of labor imposed by force, that is not a violation of liberty; a transmission of wealth imposed by force, that is not a violation of property. if you cannot succeed in reconciling this, you are bound to conclude that the law cannot organize labor and industry without organizing injustice. when, from the seclusion of his office, a politician takes a view of society, he is struck with the spectacle of inequality that presents itself. he mourns over the sufferings that are the lot of so many of our brethren, sufferings whose aspect is rendered yet more sorrowful by the contrast of luxury and wealth. he ought, perhaps, to ask himself whether such a social state has not been caused by the plunder of ancient times, exercised in the way of conquests; and by plunder of more recent times, effected through the medium of the laws? he ought to ask himself whether, granting the aspiration of all men to well-being and improvement, the reign of justice would not suffice to realize the greatest activity of progress, and the greatest amount of equality compatible with that individual responsibility that god has awarded as a just retribution of virtue and vice? he never gives this a thought. his mind turns towards combinations, arrangements, legal or factitious organizations. he seeks the remedy in perpetuating and exaggerating what has produced the evil. for, justice apart, which we have seen is only a negation, is there any one of these legal arrangements that does not contain the principle of plunder? you say, "there are men who have no money," and you apply to the law. but the law is not a self-supplied { } fountain, whence every stream may obtain supplies independently of society. nothing can enter the public treasury, in favor of one citizen or one class, but what other citizens and other classes have been forced to send to it. if everyone draws from it only the equivalent of what he has contributed to it, your law, it is true, is no plunderer, but it does nothing for men who want money--it does not promote equality. it can only be an instrument of equalization as far as it takes from one party to give to another, and then it is an instrument of plunder. examine, in this light, the protection of tariffs, subsidies, right to profit, right to labor, right to assistance, free public education, progressive taxation, gratuitousness of credit, social workshops, and you will always find at the bottom legal plunder, organized injustice. you say, "there are men who want knowledge," and you apply to the law. but the law is not a torch that sheds light that originates within itself. it extends over a society where there are men who have knowledge, and others who have not; citizens who want to learn, and others who are disposed to teach. it can only do one of two things: either allow a free operation to this kind of transaction, i.e., let this kind of want satisfy itself freely; or else preempt the will of the people in the matter, and take from some of them sufficient to pay professors commissioned to instruct others for free. but, in this second case there cannot fail to be a violation of liberty and property--legal plunder. you say, "here are men who are wanting in morality or religion," and you apply to the law; but law is force, and need i say how far it is a violent and absurd enterprise to introduce force in these matters? { } as the result of its systems and of its efforts, it would seem that socialism, notwithstanding all its self-complacency, can scarcely help perceiving the monster of legal plunder. but what does it do? it disguises it cleverly from others, and even from itself, under the seductive names of fraternity, solidarity, organization, association. and because we do not ask so much at the hands of the law, because we only ask it for justice, it alleges that we reject fraternity, solidarity, organization, and association; and they brand us with the name of individualists. we can assure them that what we repudiate is not natural organization, but forced organization. it is not free association, but the forms of association that they would impose upon us. it is not spontaneous fraternity, but legal fraternity. it is not providential solidarity, but artificial solidarity, which is only an unjust displacement of responsibility. socialism, like the old policy from which it emanates, confounds government and society. and so, every time we object to a thing being done by government, it concludes that we object to its being done at all. we disapprove of education by the state--then we are against education altogether. we object to a state religion--then we would have no religion at all. we object to an equality which is brought about by the state then we are against equality, etc., etc. they might as well accuse us of wishing men not to eat, because we object to the cultivation of corn by the state. how is it that the strange idea of making the law produce what it does not contain--prosperity, in a positive sense, wealth, science, religion--should ever have gained ground in the political world? the modern politicians, particularly those of the socialist school, found their different { } theories upon one common hypothesis; and surely a more strange, a more presumptuous notion, could never have entered a human brain. they divide mankind into two parts. men in general, except one, form the first; the politician himself forms the second, which is by far the most important. in fact, they begin by supposing that men are devoid of any principle of action, and of any means of discernment in themselves; that they have no initiative; that they are inert matter, passive particles, atoms without impulse; at best a vegetation indifferent to its own mode of existence, susceptible of assuming, from an exterior will and hand an infinite number of forms, more or less symmetrical, artistic, and perfected. moreover, every one of these politicians does not hesitate to assume that he himself is, under the names of organizer, discoverer, legislator, institutor or founder, this will and hand, this universal initiative, this creative power, whose sublime mission it is to gather together these scattered materials, that is, men, into society. starting from these data, as a gardener according to his caprice shapes his trees into pyramids, parasols, cubes, cones, vases, espaliers, distaffs, or fans; so the socialist, following his chimera, shapes poor humanity into groups, series, circles, subcircles, honeycombs, or social workshops, with all kinds of variations. and as the gardener, to bring his trees into shape, needs hatchets, pruning hooks, saws, and shears, so the politician, to bring society into shape, needs the forces which he can only find in the laws; the law of tariffs, the law of taxation, the law of assistance, and the law of education. it is so true, that the socialists look upon mankind as a subject for social experiments, that if, by chance, they { } are not quite certain of the success of these experiments, they will request a portion of mankind, as a subject to experiment upon. it is well known how popular the idea of trying all systems is, and one of their chiefs has been known seriously to demand of the constituent assembly a parish, with all its inhabitants, upon which to make his experiments. it is thus that an inventor will make a small machine before he makes one of the regular size. thus the chemist sacrifices some substances, the agriculturist some seed and a corner of his field, to make trial of an idea. but think of the difference between the gardener and his trees, between the inventor and his machine, between the chemist and his substances, between the agriculturist and his seed! the socialist thinks, in all sincerity, that there is the same difference between himself and mankind. no wonder the politicians of the nineteenth century look upon society as an artificial production of the legislator's genius. this idea, the result of a classical education, has taken possession of all the thinkers and great writers of our country. to all these persons, the relations between mankind and the legislator appear to be the same as those that exist between the clay and the potter. moreover, if they have consented to recognize in the heart of man a capability of action, and in his intellect a faculty of discernment, they have looked upon this gift of god as a fatal one, and thought that mankind, under these two impulses, tended fatally towards ruin. they have taken it for granted that if abandoned to their own inclinations, men would only occupy themselves with religion to arrive at atheism, with instruction to come to ignorance, and with labor and exchange to be extinguished in misery. { } happily, according to these writers, there are some men, termed governors and legislators, upon whom heaven has bestowed opposite tendencies, not for their own sake only, but for the sake of the rest of the world. whilst mankind tends to evil, they incline to good; whilst mankind is advancing towards darkness, they are aspiring to enlightenment; whilst mankind is drawn towards vice, they are attracted by virtue. and, this granted, they demand the assistance of force, by means of which they are to substitute their own tendencies for those of the human race. it is only needful to open, almost at random, a book on philosophy, politics, or history, to see how strongly this idea--the child of classical studies and the mother of socialism--is rooted in our country; that mankind is merely inert matter, receiving life, organization, morality, and wealth from power; or, rather, and still worse--that mankind itself tends towards degradation, and is only arrested in its tendency by the mysterious hand of the legislator. classical conventionalism shows us everywhere, behind passive society, a hidden power, under the names of law, or legislator (or, by a mode of expression which refers to some person or persons of undisputed weight and authority, but not named), which moves, animates, enriches, and regenerates mankind. we will give a quotation from bossuet: one of the things which was the most strongly impressed (by whom?) upon the mind of the egyptians, was the love of their country.... nobody was allowed to be useless to the state; the law assigned to every one his employment, which descended from father to son. no one was permitted to have two professions, nor to adopt another. ... but there was one occupation which was { } obliged to be common to all, this was the study of the laws and of wisdom; ignorance of religion and the political regulations of the country was excused in no condition of life. moreover, every profession had a district assigned to it (by whom?).... amongst good laws, one of the best things was, that everybody was taught to observe them (by whom?). egypt abounded with wonderful inventions, and nothing was neglected which could render life comfortable and tranquil. thus men, according to bossuet, derive nothing from themselves; patriotism, wealth, inventions, husbandry, science--all come to them by the operation of the laws, or by kings. all they have to do is to be passive. it is on this ground that bossuet takes exception when diodorus accuses the egyptians of rejecting wrestling and music. "how is that possible," says he, "since these arts were invented by trismegistus?" it is the same with the persians: one of the first cares of the prince was to encourage agriculture.... as there were posts established for the regulation of the armies, so there were offices for the superintending of rural works.... the respect with which the persians were inspired for royal authority was excessive. the greeks, although full of mind, were no less strangers to their own responsibilities; so much so, that of themselves, like dogs and horses, they would not have ventured upon the most simple games. in a classical sense, it is an undisputed thing that everything comes to the people from without. the greeks, naturally full of spirit and courage, had been early cultivated by kings and colonies who had come from egypt. from them they had { } learned the exercises of the body, foot races, and horse and chariot races.... the best thing that the egyptians had taught them was to become docile, and to allow themselves to be formed by the laws for the public good. fenelon--reared in the study and admiration of antiquity and a witness of the power of louis xiv, fenelon naturally adopted the idea that mankind should be passive, and that its misfortunes and its prosperities, its virtues and its vices, are caused by the external influence that is exercised upon it by the law, or by the makers of the law. thus, in his utopia of salentum, he brings the men, with their interests, their faculties, their desires, and their possessions, under the absolute direction of the legislator. whatever the subject may be, they themselves have no voice in it--the prince judges for them. the nation is just a shapeless mass, of which the prince is the soul. in him resides the thought, the foresight, the principle of all organization, of all progress; on him, therefore, rests all the responsibility. in proof of this assertion, i might transcribe the whole of the tenth book of _telemachus_. i refer the reader to it, and shall content myself with quoting some passages taken at random from this celebrated work, to which, in every other respect, i am the first to render justice. with the astonishing credulity that characterizes the classics, fénelon, against the authority of reason and of facts, admits the general felicity of the egyptians, and attributes it, not to their own wisdom, but to that of their kings: we could not turn our eyes to the two shores, without perceiving rich towns and country seats, agreeably situated; fields that were covered every year, { } without intermission, with golden crops; meadows full of flocks; laborers bending under the weight of fruits that the earth lavished on its cultivators; and shepherds who made the echoes around repeat the soft sounds of their pipes and flutes. "happy," said mentor, "is that people who is governed by a wise king."... mentor afterwards desired me to remark the happiness and abundance that was spread over all the country of egypt, where twenty-two thousand cities might be counted. he admired the excellent police regulations of the cities; the justice administered in favor of the poor against the rich; the good education of the children, who were accustomed to obedience, labor, and the love of arts and letters; the exactness with which all the ceremonies of religion were performed; the disinterestedness, the desire of honor, the fidelity to men, and the fear of the gods, with which every father inspired his children. he could not sufficiently admire the prosperous state of the country. "happy" said he, "is the people whom a wise king rules in such a manner." fénelon's idyll on crete is still more fascinating. mentor is made to say: all that you will see in this wonderful island is the result of the laws of minos. the education that the children receive renders the body healthy and robust. they are accustomed, from the first, to a frugal and laborious life; it is supposed that all the pleasures of sense enervate the body and the mind; no other pleasure is presented to them but that of being invincible by virtue, that of acquiring much glory... there they punish three vices that go unpunished amongst other people--ingratitude, dissimulation, and avarice. as to pomp and dissipation, there is no need to punish these, for they are unknown in crete.... no costly furniture, no magnificent clothing, no delicious feasts, no gilded palaces are allowed. { } it is thus that mentor prepares his scholar to mould and manipulate, doubtless with the most philanthropic intentions, the people of ithaca, and, to confirm him in these ideas, he gives him the example of salentum. so we receive our first political notions. we are taught to treat men very much as oliver de serres teaches farmers to manage and to mix the soil. montesquieu-- to sustain the spirit of commerce, it is necessary that all the laws should favor it; that these same laws, by their regulations in dividing the fortunes in proportion as commerce enlarges them, should place every poor citizen in sufficiently easy circumstances to enable him to work like the others, and every rich citizen in such mediocrity that he must work, in order to retain or to acquire. thus the laws are to dispose of all fortunes. although in a democracy, real equality be the soul of the state, yet it is so difficult to establish that an extreme exactness in this matter would not always be desirable. it is sufficient that a census be established to reduce or fix the differences to a certain point, after which, it is for particular laws to equalize, as it were, the inequality by burdens imposed upon the rich and reliefs granted to the poor. here, again, we see the equalization of fortunes by law, that is, by force. there were, in greece, two kinds of republics. one was military, as sparta; the other commercial, as athens. in the one it was wished (by whom?) that the citizens should be idle: in the other, the love of labor was encouraged. it is worth our while to pay a little attention to the extent of genius required by these legislators, that { } we may see how, by confounding all the virtues, they showed their wisdom to the world. lycurgus, blending theft with the spirit of justice, the hardest slavery with extreme liberty, the most atrocious sentiments with the greatest moderation, gave stability to his city. he seemed to deprive it of all its resources, arts, commerce, money, and walls; there was ambition without the hope of rising; there were natural sentiments where the individual was neither child, nor husband, nor father. chastity even was deprived of modesty. by this road sparta was led on to grandeur and to glory. the phenomenon that we observe in the institutions of greece has been seen in the midst of the degeneracy and corruption of our modern times. an honest legislator has formed a people where probity has appeared as natural as bravery among the spartans. mr. penn is a true lycurgus, and although the former had peace for his object, and the latter war, they resemble each other in the singular path along which they have led their people, in their influence over free men, in the prejudices which they have overcome, the passions they have subdued. paraguay furnishes us with another example. society has been accused of the crime of regarding the pleasure of commanding as the only good of life; but it will always be a noble thing to govern men by making them happy. those who desire to form similar institutions will establish community of property, as in the republic of plato, the same reverence as he enjoined for the gods, separation from strangers for the preservation of morality, and make the city and not the citizens create commerce: they should give our arts without our luxury, our wants without our desires. { } vulgar infatuation may exclaim, if it likes, "it is montesquieu! magnificent! sublime!" i am not afraid to express my opinion, and to say: what! you have the gall to call that fine? it is frightful! it is abominable! and these extracts, which i might multiply, show that according to montesquieu, the persons, the liberties, the property, mankind itself, are nothing but grist for the mill of the sagacity of lawgivers. rousseau--although this politician, the paramount authority of the democrats, makes the social edifice rest upon the general will, no one has so completely admitted the hypothesis of the entire passiveness of human nature in the presence of the lawgiver: if it is true that a great prince is a rare thing, how much more so must a great lawgiver be? the former has only to follow the pattern proposed to him by the latter. this latter is the engineer who invents the machine; the former is merely the workman who sets it in motion. and what part have men to act in all this? that of the machine, which is set in motion; or rather, are they not the brute matter of which the machine is made? thus, between the legislator and the prince, between the prince and his subjects, there are the same relations as those that exist between the agricultural writer and the agriculturist, the agriculturist and the clod. at what a vast height, then, is the politician placed, who rules over legislators themselves and teaches them their trade in such imperative terms as the following: would you give consistency to the state? bring the extremes together as much as possible. suffer neither wealthy persons nor beggars. { } if the soil is poor and barren, or the country too much confined for the inhabitants, turn to industry and the arts, whose productions you will exchange for the provisions which you require.... on a good soil, if you are short of inhabitants, give all your attention to agriculture, which multiplies men, and banish the arts, which only serve to depopulate the country.... pay attention to extensive and convenient coasts. cover the sea with vessels, and you will have a brilliant and short existence. if your seas wash only inaccessible rocks, let the people be barbarous, and eat fish; they will live more quietly, perhaps better, and most certainly more happily. in short, besides those maxims which are common to all, every people has its own particular circumstances, which demand a legislation peculiar to itself. it was thus that the hebrews formerly, and the arabs more recently, had religion for their principal object; that of the athenians was literature; that of carthage and tyre, commerce; of rhodes, naval affairs; of sparta, war; and of rome, virtue. the author of the "spirit of laws" has shown the art by which the legislator should frame his institutions towards each of these objects.... but if the legislator, mistaking his object, should take up a principle different from that which arises from the nature of things; if one should tend to slavery, and the other to liberty; if one to wealth, and the other to population; one to peace, and the other to conquests; the laws will insensibly become enfeebled, the constitution will be impaired, and the state will be subject to incessant agitations until it is destroyed, or becomes changed, and invincible nature regains her empire. but if nature is sufficiently invincible to regain its empire, why does not rousseau admit that it had no need of the legislator to gain its empire from the beginning? { } why does he not allow that by obeying their own impulse, men would of themselves apply agriculture to a fertile district, and commerce to extensive and commodious coasts without the interference of a lycurgus, a solon, or a rousseau, who would undertake it at the risk of deceiving themselves? be that as it may, we see with what a terrible responsibility rousseau invests inventors, institutors, conductors, and manipulators of societies. he is, therefore, very exacting with regard to them. he who dares to undertake the institutions of a people, ought to feel that he can, as it were, transform every individual, who is by himself a perfect and solitary whole, receiving his life and being from a larger whole of which he forms a part; he must feel that he can change the constitution of man, to fortify it, and substitute a social and moral existence for the physical and independent one that we have all received from nature. in a word, he must deprive man of his own powers, to give him others that are foreign to him. poor human nature! what would become of its dignity if it were entrusted to the disciples of rousseau? raynal-- the climate, that is, the air and the soil, is the first element for the legislator. his resources prescribe to him his duties. first, he must consult his local position. a population dwelling upon maritime shores must have laws fitted for navigation.... if the colony is located in an inland region, a legislator must provide for the nature of the soil, and for its degree of fertility.... it is more especially in the distribution of property that the wisdom of legislation will appear. as a { } general rule, and in every country, when a new colony is founded, land should be given to each man, sufficient for the support of his family.... in an uncultivated island, which you are colonizing with children, it will only be needful to let the germs of truth expand in the developments of reason!... but when you establish old people in a new country, the skill consists in only allowing it those injurious opinions and customs which it is impossible to cure and correct. if you wish to prevent them from being perpetuated, you will act upon the rising generation by a general and public education of the children. a prince or legislator ought never to found a colony without previously sending wise men there to instruct the youth.... in a new colony, every facility is open to the precautions of the legislator who desires to purify the tone and the manners of the people. if he has genius and virtue, the lands and the men that are at his disposal will inspire his soul with a plan of society that a writer can only vaguely trace, and in a way that would be subject to the instability of all hypotheses, which are varied and complicated by an infinity of circumstances too difficult to foresee and to combine. one would think it was a professor of agriculture who was saying to his pupils the climate is the only rule for the agriculturist. his resources dictate to him his duties. the first thing he has to consider is his local position. if he is on a clayey soil, he must do so and so. if he has to contend with sand, this is the way in which he must set about it. every facility is open to the agriculturist who wishes to clear and improve his soil. if he only has the skill, the manure which he has at his disposal will suggest to him a plan of operation, which a professor can only vaguely trace, and in a way that would be subject to the uncertainty of all hypotheses, which vary and are complicated by an { } infinity of circumstances too difficult to foresee and to combine. but, oh! sublime writers, deign to remember sometimes that this clay, this sand, this manure, of which you are disposing in so arbitrary a manner, are men, your equals, intelligent and free beings like yourselves, who have received from god, as you have, the faculty of seeing, of foreseeing, of thinking, and of judging for themselves! mably--(he is supposing the laws to be worn out by time and by the neglect of security, and continues thus): under these circumstances, we must be convinced that the bonds of government are slack. give them a new tension (it is the reader who is addressed), and the evil will be remedied.... think less of punishing the faults than of encouraging the virtues that you want. by this method you will bestow upon your republic the vigor of youth. through ignorance of this, a free people has lost its liberty! but if the evil has made so much way that the ordinary magistrates are unable to remedy it effectually, have recourse to an extraordinary magistracy, whose time should be short, and its power considerable. the imagination of the citizens requires to be impressed. in this style he goes on through twenty volumes. there was a time when, under the influence of teaching like this, which is the foundation of classical education, everyone was for placing himself beyond and above mankind, for the sake of arranging, organizing, and instituting it in his own way. condillac-- take upon yourself, my lord, the character of lycurgus or of solon. before you finish reading { } this essay, amuse yourself with giving laws to some wild people in america or in africa. establish these roving men in fixed dwellings; teach them to keep flocks.... endeavor to develop the social qualities that nature has implanted in them.... make them begin to practice the duties of humanity.... cause the pleasures of the passions to become distasteful to them by punishments, and you will see these barbarians, with every plan of your legislation, lose a vice and gain a virtue. all these people have had laws. but few among them have been happy. why is this? because legislators have almost always been ignorant of the object of society, which is to unite families by a common interest. impartiality in law consists in two things, in establishing equality in the fortunes and in the dignity of the citizens.... in proportion to the degree of equality established by the laws, the dearer will they become to every citizen. how can avarice, ambition, dissipation, idleness, sloth, envy, hatred, or jealousy agitate men who are equal in fortune and dignity, and to whom the laws leave no hope of disturbing their equality? what has been told you of the republic of sparta ought to enlighten you on this question. no other state has had laws more in accordance with the order of nature or of equality. it is not to be wondered at that the seventeenth and eighteenth centuries should have looked upon the human race as inert matter, ready to receive everything--form, figure, impulse, movement, and life, from a great prince, or a great legislator, or a great genius. these ages were reared in the study of antiquity; and antiquity presents everywhere--in egypt, persia, greece, and rome, the { } spectacle of a few men molding mankind according to their fancy, and mankind to this end enslaved by force or by imposture. and what does this prove? that because men and society are improvable, error, ignorance, despotism, slavery, and superstition must be more prevalent in early times. the mistake of the writers quoted above is not that they have asserted this fact, but that they have proposed it as a rule for the admiration and imitation of future generations. their mistake has been, with an inconceivable absence of discernment, and upon the faith of a puerile conventionalism, that they have admitted what is inadmissible, viz., the grandeur, dignity, morality, and well-being of the artificial societies of the ancient world; they have not understood that time produces and spreads enlightenment; and that in proportion to the increase of enlightenment, right ceases to be upheld by force, and society regains possession of herself. and, in fact, what is the political work that we are endeavoring to promote? it is no other than the instinctive effort of every people towards liberty. and what is liberty, whose name can make every heart beat, and which can agitate the world, but the union of all liberties, the liberty of conscience, of education, of association, of the press, of movement, of labor, and of exchange; in other words, the free exercise, for all, of all the inoffensive faculties; and again, in other words, the destruction of all despotisms, even of legal despotism, and the reduction of law to its only rational sphere, which is to regulate the individual right of legitimate defense, or to repress injustice? this tendency of the human race, it must be admitted, is greatly thwarted, particularly in our country, by the fatal disposition, resulting from classical teaching and common to all politicians, of placing themselves beyond { } mankind, to arrange, organize, and regulate it, according to their fancy. for whilst society is struggling to realize liberty, the great men who place themselves at its head, imbued with the principles of the seventeenth and eighteenth centuries, think only of subjecting it to the philanthropic despotism of their social inventions, and making it bear with docility, according to the expression of rousseau, the yoke of public felicity as pictured in their own imaginations. this was particularly the case in . no sooner was the old system destroyed than society was to be submitted to other artificial arrangements, always with the same starting point--the omnipotence of the law. saint-just-- the legislator commands the future. it is for him to will for the good of mankind. it is for him to make men what he wishes them to be. robespierre-- the function of government is to direct the physical and moral powers of the nation towards the object of its institution. billaud varennes-- a people who are to be restored to liberty must be formed anew. ancient prejudices must be destroyed, antiquated customs changed, depraved affections corrected, inveterate vices eradicated. for this, a strong force and a vehement impulse will be necessary.... citizens, the inflexible austerity of lycurgus created the firm basis of the spartan republic. the feeble and trusting disposition of solon plunged athens into slavery. this parallel contains the whole science of government. { } lepelletier-- considering the extent of human degradation, i am convinced--of the necessity of effecting an entire regeneration of the race, and, if i may so express myself, of creating a new people. men, therefore, are nothing but raw material. it is not for them to will their own improvement. they are not capable of it; according to saint-just, it is only the legislator who is. men are merely to be what he wills that they should be. according to robespierre, who copies rousseau literally, the legislator is to begin by assigning the aim of the institutions of the nation. after this, the government has only to direct all its physical and moral forces towards this end. all this time the nation itself is to remain perfectly passive; and billaud varennes would teach us that it ought to have no prejudices, affections, nor wants, but such as are authorized by the legislator. he even goes so far as to say that the inflexible austerity of a man is the basis of a republic. we have seen that, in cases where the evil is so great that the ordinary magistrates are unable to remedy it, mably recommends a dictatorship, to promote virtue. "have recourse," says he, "to an extraordinary magistracy, whose time shall be short, and his power considerable. the imagination of the people requires to be impressed." this doctrine has not been neglected. listen to robespierre: the principle of the republican government is virtue, and the means to be adopted, during its establishment, is terror. we want to substitute, in our country, morality for self-indulgence, probity for honor, principles for customs, duties for decorum, the empire of reason for the tyranny of { } fashion, contempt of vice for contempt of misfortune, pride for insolence, greatness of soul for vanity, love of glory for love of money, good people for good company, merit for intrigue, genius for wit, truth for glitter, the charm of happiness for the weariness of pleasure, the greatness of man for the littleness of the great, a magnanimous, powerful, happy people, for one that is easy, frivolous, degraded; that is to say, we would substitute all the virtues and miracles of a republic for all the vices and absurdities of monarchy. at what a vast height above the rest of mankind does robespierre place himself here! and observe the arrogance with which he speaks. he is not content with expressing a desire for a great renovation of the human heart, he does not even expect such a result from a regular government. no; he intends to effect it himself, and by means of terror. the object of the discourse from which this puerile and laborious mass of antithesis is extracted, was to exhibit the principles of morality that ought to direct a revolutionary government. moreover, when robespierre asks for a dictatorship, it is not merely for the purpose of repelling a foreign enemy, or of putting down factions; it is that he may establish, by means of terror and as a preliminary to the operation of the constitution, his own principles of morality. he pretends to nothing short of extirpating from the country by means of terror, self-interest, honor, customs, decorum, fashion, vanity, the love of money, good company, intrigue, wit, luxury, and misery. it is not until after he, robespierre, shall have accomplished these miracles, as he rightly calls them, that he will allow the law to regain her empire. truly it would be well if these visionaries, who think so much of themselves and so little of mankind, who want to { } renew everything, would only be content with trying to reform themselves, the task would be arduous enough for them. in general, however, these gentlemen, the reformers, legislators, and politicians, do not desire to exercise an immediate despotism over mankind. no, they are too moderate and too philanthropic for that. they only contend for the despotism, the absolutism, the omnipotence of the law. they aspire only to make the law. to show how universal this strange disposition has been in france, i had need not only to have copied the whole of the works of mably, raynal, rousseau, fenelon, and to have made long extracts from bossuet and montesquieu, but to have given the entire transactions of the sittings of the convention. i shall do no such thing, however, but merely refer the reader to them. no wonder this idea suited bonaparte so well. he embraced it with ardor, and put it in practice with energy. playing the part of a chemist, europe was to him the material for his experiments. but this material reacted against him. more than half undeceived, bonaparte, at st. helena, seemed to admit that there is an initiative in every people, and he became less hostile to liberty. yet this did not prevent him from giving this lesson to his son in his will--"to govern is to diffuse morality, education, and well-being." after all this, i hardly need show, by fastidious quotations, the opinions of morelly, babeuf, owen, saint simon, and fourier. i shall confine myself to a few extracts from louis blanc's book on the organization of labor. "in our project, society receives the impulse of power." in what does the impulse that power gives to society consist? in imposing upon it the project of mr. louis blanc. { } on the other hand, society is the human race. the human race, then, is to receive its impulse from mr. louis blanc. it is at liberty to do so or not, it will be said. of course the human race is at liberty to take advice from anybody, whoever it may be. but this is not the way in which mr. louis blanc understands the thing. he means that his project should be converted into law, and consequently forcibly imposed by power. in our project, the state has only to give a legislation to labor, by means of which the industrial movement may and ought to be accomplished in all liberty. it (the state) merely places society on an incline (that is all) that it may descend, when once it is placed there, by the mere force of things, and by the natural course of the established mechanism. but what is this incline? one indicated by mr. louis blanc. does it not lead to an abyss? no, it leads to happiness. why, then, does not society go there of itself? because it does not know what it wants, and it requires an impulse. what is to give it this impulse? power. and who is to give the impulse to power? the inventor of the machine, mr. louis blanc. we shall never get out of this circle--mankind passive, and a great man moving it by the intervention of the law. once on this incline, will society enjoy something like liberty? without a doubt. and what is liberty? once for all: liberty consists not only in the right granted, but in the power given to man to exercise, to develop his faculties under the empire of justice, and under the protection of the law. and this is no vain distinction; there is a deep meaning in it, and its consequences are imponderable. for { } when once it is admitted that man, to be truly free, must have the power to exercise and develop his faculties, it follows that every member of society has a claim upon it for such education as shall enable his faculties to display themselves, and for the tools of labor, without which human activity can find no scope. now, by whose intervention is society to give to each of its members the requisite education and the necessary tools of labor, unless by that of the state? thus, liberty is power. in what does this power consist? in possessing education and tools of labor. who is to give education and tools of labor? society, who owes them. by whose intervention is society to give tools of labor to those who do not possess them? by the intervention of the state. from whom is the state to obtain them? it is for the reader to answer this question, and to notice whither all this tends. one of the strangest phenomena of our time, and one that will probably be a matter of astonishment to our descendants, is the doctrine which is founded upon this triple hypothesis: the radical passiveness of mankind,--the omnipotence of the law,--the infallibility of the legislator: this is the sacred symbol of the party that proclaims itself exclusively democratic. it is true that it professes also to be social. so far as it is democratic, it has an unlimited faith in mankind. so far as it is social, it places mankind beneath the mud. are political rights under discussion? is a legislator to be chosen? oh, then the people possess science by instinct: they are gifted with an admirable discernment; their will is always right; the general will cannot err. suffrage cannot { } be too universal. nobody is under any responsibility to society. the will and the capacity to choose well are taken for granted. can the people be mistaken? are we not living in an age of enlightenment? what! are the people to be forever led about by the nose? have they not acquired their rights at the cost of effort and sacrifice? have they not given sufficient proof of intelligence and wisdom? are they not arrived at maturity? are they not in a state to judge for themselves? do they not know their own interest? is there a man or a class who would dare to claim the right of putting himself in the place of the people, of deciding and of acting for them? no, no; the people would be free, and they shall be so. they wish to conduct their own affairs, and they shall do so. but when once the legislator is duly elected, then indeed the style of his speech alters. the nation is sent back into passiveness, inertness, nothingness, and the legislator takes possession of omnipotence. it is for him to invent, for him to direct, for him to impel, for him to organize. mankind has nothing to do but to submit; the hour of despotism has struck. and we must observe that this is decisive; for the people, just before so enlightened, so moral, so perfect, have no inclinations at all, or, if they have any, these all lead them downwards towards degradation. and yet they ought to have a little liberty! but are we not assured by mr. considerant that liberty leads fatally to monopoly? are we not told that liberty is competition? and that competition, according to mr. louis blanc, is a system of extermination for the people, and of ruination for trade? for that reason people are exterminated and ruined in proportion as they are free--take, for example, switzerland, holland, england, and the united states? does not mr. louis blanc tell us again that competition { } leads to monopoly, and that, for the same reason, cheapness leads to exorbitant prices? that competition tends to drain the sources of consumption, and diverts production to a destructive activity? that competition forces production to increase, and consumption to decrease--whence it follows that free people produce for the sake of not consuming; that there is nothing but oppression and madness among them; and that it is absolutely necessary for mr. louis blanc to see to it? what sort of liberty should be allowed to men? liberty of conscience?--but we should see them all profiting by the permission to become atheists. liberty of education?--but parents would be paying professors to teach their sons immorality and error; besides, if we are to believe mr. thiers, education, if left to the national liberty, would cease to be national, and we should be educating our children in the ideas of the turks or hindus, instead of which, thanks to the legal despotism of the universities, they have the good fortune to be educated in the noble ideas of the romans. liberty of labor? but this is only competition, whose effect is to leave all products unconsumed, to exterminate the people, and to ruin the tradesmen. the liberty of exchange? but it is well known that the protectionists have shown, over and over again, that a man will inevitably be ruined when he exchanges freely, and that to become rich it is necessary to exchange without liberty. liberty of association? but according to the socialist doctrine, liberty and association exclude each other, for the liberty of men is attacked just to force them to associate. you must see, then, that the socialist democrats cannot in conscience allow men any liberty, because, by their own { } nature, they tend in every instance to all kinds of degradation and demoralization. we are therefore left to conjecture, in this case, upon what foundation universal suffrage is claimed for them with so much importunity. the pretensions of organizers suggest another question, which i have often asked them, and to which i am not aware that i ever received an answer: since the natural tendencies of mankind are so bad that it is not safe to allow them liberty, how comes it to pass that the tendencies of organizers are always good? do not the legislators and their agents form a part of the human race? do they consider that they are composed of different materials from the rest of mankind? they say that society, when left to itself, rushes to inevitable destruction, because its instincts are perverse. they presume to stop it in its downward course, and to give it a better direction. they have, therefore, received from heaven, intelligence and virtues that place them beyond and above mankind: let them show their title to this superiority. they would be our shepherds, and we are to be their flock. this arrangement presupposes in them a natural superiority, the right to which we are fully justified in calling upon them to prove. you must observe that i am not contending against their right to invent social combinations, to propagate them, to recommend them, and to try them upon themselves, at their own expense and risk; but i do dispute their right to impose them upon us through the medium of the law, that is, by force and by public taxes. i would not insist upon the cabetists, the fourierists, the proudhonians, the academics, and the protectionists renouncing their own particular ideas; i would only have them renounce the idea that is common to them all--viz., { } that of subjecting us by force to their own categories and rankings to their social laboratories, to their ever-inflating bank, to their greco-roman morality, and to their commercial restrictions. i would ask them to allow us the faculty of judging of their plans, and not to oblige us to adopt them if we find that they hurt our interests or are repugnant to our consciences. to presume to have recourse to power and taxation, besides being oppressive and unjust, implies further, the pernicious assumption that the organized is infallible, and mankind incompetent. and if mankind is not competent to judge for itself, why do they talk so much about universal suffrage? this contradiction in ideas is unhappily to be found also in facts; and whilst the french nation has preceded all others in obtaining its rights, or rather its political claims, this has by no means prevented it from being more governed, and directed, and imposed upon, and fettered, and cheated, than any other nation. it is also the one, of all others, where revolutions are constantly to be dreaded, and it is perfectly natural that it should be so. so long as this idea is retained, which is admitted by all our politicians, and so energetically expressed by mr. louis blanc in these words--"society receives its impulse from power," so long as men consider themselves as capable of feeling, yet passive--incapable of raising themselves by their own discernment and by their own energy to any morality, or well-being, and while they expect everything from the law; in a word, while they admit that their relations with the state are the same as those of the flock with the shepherd, it is clear that the responsibility of power is immense. fortune and misfortune, wealth and destitution, equality and inequality all proceed from it. it is charged { } with everything, it undertakes everything, it does everything; therefore it has to answer for everything. if we are happy, it has a right to claim our gratitude; but if we are miserable, it alone must bear the blame. are not our persons and property in fact, at its disposal? is not the law omnipotent? in creating the educational monopoly, it has undertaken to answer the expectations of fathers of families who have been deprived of liberty; and if these expectations are disappointed, whose fault is it? in regulating industry, it has undertaken to make it prosper, otherwise it would have been absurd to deprive it of its liberty; and if it suffers, whose fault is it? in pretending to adjust the balance of commerce by the game of tariffs, it undertakes to make commerce prosper; and if, so far from prospering, it is destroyed, whose fault is it? in granting its protection to maritime armaments in exchange for their liberty, it has undertaken to render them self-sufficient; if they become burdensome, whose fault is it? thus, there is not a grievance in the nation for which the government does not voluntarily make itself responsible. is it any wonder that every failure threatens to cause a revolution? and what is the remedy proposed? to extend indefinitely the dominion of the law, i.e., the responsibility of government. but if the government undertakes to raise and to regulate wages, and is not able to do it; if it undertakes to assist all those who are in want, and is not able to do it; if it undertakes to provide work for every laborer, and is not able to do it; if it undertakes to offer to all who wish to borrow, easy credit, and is not able to do it; if, in words that we regret should have escaped the pen of mr. de lamartine, "the state considers that its mission is to enlighten, to { } develop, to enlarge, to strengthen, to spiritualize, and to sanctify the soul of the people"--if it fails in this, is it not obvious that after every disappointment, which, alas! is more than probable, there will be a no less inevitable revolution? i shall now resume the subject by remarking, that immediately after the economical part [ ] of the question, and before the political part, a leading question presents itself. it is the following: what is law? what ought it to be? what is its domain? what are its limits? where, in fact, does the prerogative of the legislator stop? i have no hesitation in answering, law is common force organized to prevent injustice;--in short, law is justice. it is not true that the legislator has absolute power over our persons and property, since they pre-exist, and his work is only to secure them from injury. it is not true that the mission of the law is to regulate our consciences, our ideas, our will, our education, our sentiments, our works, our exchanges, our gifts, our enjoyments. its mission is to prevent the rights of one from interfering with those of another, in any one of these things. law, because it has force for its necessary sanction, can only have the domain of force, which is justice. and as every individual has a right to have recourse to force only in cases of lawful defense, so collective force, so which is only the union { } of individual forces, cannot be rationally used for any other end. the law, then, is solely the organization of individual rights that existed before law. law is justice. so far from being able to oppress the people, or to plunder their property, even for a philanthropic end, its mission is to protect the people, and to secure to them the possession of their property. it must not be said, either, that it may be philanthropic, so long as it abstains from all oppression; for this is a contradiction. the law cannot avoid acting upon our persons and property; if it does not secure them, then it violates them if it touches them. the law is justice. nothing can be more clear and simple, more perfectly defined and bounded, or more visible to every eye; for justice is a given quantity, immutable and unchangeable, and which admits of neither increase or diminution. depart from this point, make the law religious, fraternal, equalizing, industrial, literary, or artistic, and you will be lost in vagueness and uncertainty; you will be upon unknown ground, in a forced utopia, or, what is worse, in the midst of a multitude of contending utopias, each striving to gain possession of the law, and to impose it upon you; for fraternity and philanthropy have no fixed limits, as justice has. where will you stop? where is the law to stop? one person, mr. de saint cricq, will only extend his philanthropy to some of the industrial classes, and will require the law to slight the consumers in favor of the producers. another, like mr. considérant, will take up the cause of the working classes, and claim for them by means of the law, at a fixed rate, clothing, lodging, food, and { } everything necessary for the support of life. a third, mr. louis blanc, will say, and with reason, that this would be an incomplete fraternity, and that the law ought to provide them with tools of labor and education. a fourth will observe that such an arrangement still leaves room for inequality, and that the law ought to introduce into the most remote hamlets luxury, literature, and the arts. this is the high road to communism; in other words, legislation will be--as it now is--the battlefield for everybody's dreams and everybody's covetousness. law is justice. in this proposition we represent to ourselves a simple, immovable government. and i defy anyone to tell me whence the thought of a revolution, an insurrection, or a simple disturbance could arise against a public force confined to the repression of injustice. under such a system, there would be more well-being, and this well-being would be more equally distributed; and as to the sufferings inseparable from humanity, no one would think of accusing the government of them, for it would be as innocent of them as it is of the variations of the temperature. have the people ever been known to rise against the court of appeals, or assail the justices of the peace, for the sake of claiming the rate of wages, free credit, tools of labor, the advantages of the tariff, or the social workshop? they know perfectly well that these matters are beyond the jurisdiction of the justices of the peace, and they would soon learn that they are not within the jurisdiction of the law quite as much. but if the law were to be made upon the principle of fraternity, if it were to be proclaimed that from it proceed all benefits and all evils--that it is responsible for every individual grievance and for every social inequality--then { } you open the door to an endless succession of complaints, irritations, troubles, and revolutions. _law is justice_. and it would be very strange if it could properly be anything else! is not justice right? are not rights equal? with what show of right can the law interfere to subject me to the social plans of messrs. mimerel, de melun, thiers, or louis blanc, rather than to subject these gentlemen to my plans? is it to be supposed that nature has not bestowed upon me sufficient imagination to invent a utopia too? is it for the law to make choice of one amongst so many fancies, and to make use of the public force in its service? _law is justice_. and let it not be said, as it continually is, that the law, in this sense, would be atheistic, individual, and heartless, and that it would mold mankind in its own image. this is an absurd conclusion, quite worthy of the governmental infatuation which sees mankind in the law. what then? does it follow that if we are free, we shall cease to act? does it follow that if we do not receive an impulse from the law, we shall receive no impulse at all? does it follow that if the law confines itself to securing to us the free exercise of our faculties, our faculties will be paralyzed? does it follow, that if the law does not impose upon us forms of religion, modes of association, methods of education, rules for labor, directions for exchange, and plans for charity, we shall plunge headlong into atheism, isolation, ignorance, misery, and greed? does it follow, that we shall no longer recognize the power and goodness of god; that we shall cease to associate together, to help each other, to love and assist our unfortunate brethren, to { } study the secrets of nature, and to aspire after perfection in our existence? _law is justice_. and it is under the law of justice, under the reign of right, under the influence of liberty, security, stability, and responsibility, that every man will attain to the fullness of his worth, to all the dignity of his being, and that mankind will accomplish with order and with calmness--slowly, it is true, but with certainty--the progress ordained for it. i believe that my theory is correct; for whatever be the question upon which i am arguing, whether it be religious, philosophical, political, or economical; whether it affects well-being, morality, equality, right, justice, progress, responsibility, property, labor, exchange, capital, wages, taxes, population, credit, or government; at whatever point of the scientific horizon i start from, i invariably come to the same thing--the solution of the social problem is in liberty. and have i not experience on my side? cast your eye over the globe. which are the happiest, the most moral, and the most peaceable nations? those where the law interferes the least with private activity; where the government is the least felt; where individuality has the most scope, and public opinion the most influence; where the machinery of the administration is the least important and the least complicated; where taxation is lightest and least unequal, popular discontent the least excited and the least justifiable; where the responsibility of individuals and classes is the most active, and where, consequently, if morals are not in a perfect state, at any rate they tend incessantly to correct themselves; where transactions, meetings, and associations are the least fettered; where labor, capital, and production suffer the least from artificial { } displacements; where mankind follows most completely its own natural course; where the thought of god prevails the most over the inventions of men; those, in short, who realize the most nearly this idea that within the limits of right, all should flow from the free, perfectible, and voluntary action of man; nothing be attempted by the law or by force, except the administration of universal justice. i cannot avoid coming to this conclusion--that there are too many great men in the world; there are too many legislators, organizers, institutors of society, conductors of the people, fathers of nations, etc., etc. too many persons place themselves above mankind, to rule and patronize it; too many persons make a trade of looking after it. it will be answered--"you yourself are occupied upon it all this time." very true. but it must be admitted that it is in another sense entirely that i am speaking; and if i join the reformers it is solely for the purpose of inducing them to relax their hold. i am not doing as vaucauson did with his automaton, but as a physiologist does with the human frame; i would study and admire it. i am acting with regard to it in the spirit that animated a celebrated traveler. he found himself in the midst of a savage tribe. a child had just been born, and a crowd of soothsayers, magicians, and quacks were around it, armed with rings, hooks, and bandages. one said--"this child will never smell the perfume of a calumet, unless i stretch his nostrils." another said--"he will be without the sense of hearing, unless i draw his ears down to his shoulders." a third said--"he will never see the light of the sun, unless i give his eyes an oblique direction." a fourth said--"he will never be upright, unless i bend his legs." a fifth said--"he will not be able to think, unless i press his { } brain." "stop!" said the traveler. "whatever god does, is well done; do not pretend to know more than he; and as he has given organs to this frail creature, allow those organs to develop themselves, to strengthen themselves by exercise, use, experience, and liberty." god has implanted in mankind also all that is necessary to enable it to accomplish its destinies. there is a providential social physiology, as well as a providential human physiology. the social organs are constituted so as to enable them to develop harmoniously in the grand air of liberty. away, then, with quacks and organizers! away with their rings, and their chains, and their hooks, and their pincers! away with their artificial methods! away with their social laboratories, their governmental whims, their centralization, their tariffs, their universities, their state religions, their inflationary or monopolizing banks, their limitations, their restrictions, their moralizations, and their equalization by taxation! and now, after having vainly inflicted upon the social body so many systems, let them end where they ought to have begun--reject all systems, and try liberty--liberty, which is an act of faith in god and in his work. footnotes: [footnote : first published in .] [footnote : general council of manufactures, agriculture, and commerce, th of may, .] [footnote : if protection were only granted in france to a single class, to the engineers, for instance, it would be so absurdly plundering, as to be unable to maintain itself. thus we see all the protected trades combine, make common cause, and even recruit themselves in such a way as to appear to embrace the mass of the national labor. they feel instinctively that plunder is slurred over by being generalized.] [footnote : political economy precedes politics: the former has to discover whether human interests are harmonious or antagonistic, a fact which must be settled before the latter can determine the prerogatives of government.] index action, human. see individualism; mankind agriculture analogy to society, persian, antiquity. see greece; rome authority. see government beggars, billaud-varennes, jean nicolas, blanc, louis competition, doctrine, , force of society, , labor, law, , bonaparte, napoleon, bossuet, jacques bénigne, , cabetists, , capital displacement, carlier, pierre, carthage, charity, vii, , see also wealth, equality of; welfare classical studies, , , , , collectivism, , see also government communism, competition meaning, results, condillac, Étienne bonnot de, , constituent assembly, conventionality, crete, defense right of, , , , , democracy, vi, , democrats, dictatorship, vii, , disposition, fatal, , , distribution, , dole, , see also welfare dupin, charles, education classical, , controlled, greek, { } { } liberty in, free, , government provided, , egypt, , , elections, , see also voting employment assigned, see also labor equality of wealth, , , , fénelon, françois de salignac de la mothe antiquity, , telemachus, force common or collective, , individual, , motive, of society, , see also government; law forced conformity, viii fourier, françois marie charles, fourierists, france revolutions, fraternity legally enforced, , , , fraud, , freedom. see liberty french revolution, public services, , purpose of, v relaxed, republican, , responsibility and, , , , results, stability, virtue, see also communism, socialism greece education, law, , republic, , sparta, , , greed, happiness of the governed, history, humanity lost, , imports. see trade individualism, industry, protected. see protectionism jobs. see employment justice and injustice, distinction between, generalized, immutable, , intentions and, , law and, , , reigning, general welfare, government american ideal of, v corrupting education by, vi democratic, , , education, , force, , function, monopoly, morality, motive force, , power, v, labor displaced, land. see property law cretan, defined, , { } egyptian, , , , fraternity and, functions, , , , , greek, , , justice and, , , , morality and, , motive force, object of, omnipotence, , persian, perverted, v, , philanthropic, plunder and, , posterior and inferior, , respect for, , rousseau's views, , , spirit of, study of, united states, see also legislation lamartine, alphonse marie louis de, fraternity, government power, , lawgiver, , legislation conflict in, monopoly on, struggle for control of, , universal right of, see also law legislator. see lawgiver; politicians lepéletier, louis michel de saint fargeau, liberty competition and, , defined, denied, , described, education and, , individual, as power, returned to, seeking, life, faculties of, louis xiv lycurgus government, , , influence, , mably, abbé gabriel bonnot de, , mankind assimilation, concern for, degraded, divided, inert, , , , , , , , , , , , , inertia, as machine, nature of, violation of, melun, armand de, mentor, , mimerel de roubaix, pierre auguste remi, monopoly, , montalembert, charles, comte de, , montesquieu, charles louis de secondât, baron de, , morality law and, , morelly, napoleon, natural rights, v nature, gifts of, oliver de serres, guillaume antoine, order, owen, robert, ownership. see property paraguay, persia, { } personality, phalansteries, philanthropy. see charity plato republic, plunder absence of, burdens of, , defined, general welfare and, extralegal, kinds, legal, v, ix, , , organized, origin of, partial, , socialistic, universal, , politicians dreams of, genius of, goodness of, importance of, , responsibility of, social engineers, , , , , , , , , , superior, , politics exaggerated importance of, and favors, vi plunder through, vi poor relief. see charity; welfare power. see government property man and, origin of, protectionism, united states, proudhonians, providence, public relief, , , raynal, abbé guillaume, , religion, state, rent seeking, vi, vii republic kinds of, virtues of, revolt, revolution, french, rhodes, rights individual, v, , roberspierre, jean jacques government, lawgiver, rome virtue, rousseau, jean jacques disciples, , on the lawgiver, , saint-cricq, barthélémy, pierre laurent, comte de, saint-just, louis antoine léon de, saint-simon, claude henri, comte de doctrine, salentum, , security consequences, self-defense, , , , selfishness, serres, oliver de, slavery, united states, viii, universality, socialism confused, ix, defined, , disguised, experiments, , legal plunder, sincerely believed, social engineers, , refutation of, socialists, vii society enlightened, { } experiments, motive force, , object of, , parable of the traveler, , solon, , sparta, , spoliation. see plunder state. see government suffrage. see universal suffrage tariffs, vi, viii telemachus, terror as means of republican government, , theirs, louis adolphe doctrine, education, tyre, united states, viii, declaration of independence, v universal suffrage demand for, , , , , importance of, incapacity and, objections, vaucanson, jacques de, vested interests, , virtue and vice, , , , , voting responsibility and, , right of, see also universal suffrage want satisfaction, wealth equality of, , , , transfer of, vii welfare, , , the law perverted! the law--and, in its wake, all the collective forces of the nation. the law, i say, not only diverted from its proper direction, but made to pursue one entirely contrary! the law becomes the tool of every kind of avarice, instead of being its check! the law guilty of that very inequity which it was its mission to punish! truly, this is a serious fact, if it exists, and one to which i feel bound to call the attention of my fellow-citizens. --frédéric bastiat english interference with irish industries. english interference with irish industries. by j. g. swift macneill, m.a., christ church, oxford; barrister-at-law, professor of constitutional and criminal law in the honourable society of the king's inns, dublin; and author of "the irish parliament: what it was, and what it did." cassell & company, limited: _london, paris, new york & melbourne_. . [all rights reserved.] preface. agriculture is at the present time almost the only industry in ireland. this fact has frequently been noticed and deplored. public men of widely different views on other matters agree in their estimate of ireland's economic condition, of which they give but one explanation. thus mr. gladstone, on the introduction of the irish land bill in april, , spoke of "that old and standing evil of ireland, that land-hunger, which must not be described as if it were merely an infirmity of the people for it, and really means land scarcity."[ ] "in ireland," says mr. bright, "land, from certain causes that are not difficult to discover, is the only thing for the employment of the people, with the exception of some portion of the country in the north; the income for the maintenance of their homes, and whatever comfort they have, or prospect of saving money for themselves or their families, comes from the cultivation of the soil, and scarcely at all from those various resources to which the people of england have recourse in the course of their industrial lives."[ ] "it is generally admitted, i think, on both sides of the house," mr. bright observes in another debate, "that in discussing the irish question one fact must always be kept in mind--that is, that apart from the land of ireland there are few, if any, means of subsistence for the population, and, consequently, there has always been for its possession an exceptional and unnatural demand. this, again, has led to most serious abuses, including nearly all those constant causes of trouble and complaint we are for ever hearing of in ireland."[ ] "the truth is," says mr. chaplin, from his place in the house of commons, "that the english parliament and the english people are mainly responsible for those conditions of the country which have driven the people to the land, and the land alone, for their support. it was not always so; there were other industries in ireland in former days, which flourished, and flourished to a considerable extent, until they first aroused, and were afterwards suppressed by, the selfish fears and commercial jealousy of england--england, who was alarmed at a rivalry and competition that she dreaded at the hands and from the resources and energy of the irish people."[ ] "i am convinced that it is in the history of these cruel laws that lies the secret of that fatal competition for the land, in which--and it may well be a just retribution upon us--the source of all the troubles and all the difficulties that you have to deal with will be found."[ ] "to understand the irish land question of to-day," writes sir c. russell, the present attorney-general for england, "it is necessary to look back. i have no desire needlessly to rake up bygone wrongs. i wish to heaven the irish people could forget the past. for them it is in the main a melancholy retrospect. but england ought not to forget the past--until, at least, a great act of reparation has been done. even among men of some education in england, remarkable ignorance of the evil wrought in past times by england towards ireland prevails. there is, indeed, a vague general impression that in very remote times england, when engaged in the endeavour to conquer ireland, was guilty of cruelties, as most conquering nations are, but that those things have done very little harm; that their effects have ceased to tell, and that the only purpose served by keeping alive their memory is to irritate the temper of the irish people and prompt them to look back rather than look forward. emphatically i say this is not so. the effects have not ceased. it is not too much to say that ireland and irishmen of to-day are such as english government has made them." sir charles russell then proceeds to place foremost among "the agencies employed by england which have left enduring evil marks upon ireland," "the direct legislation avowedly contrived to hinder the development of irish commerce and manufactures."[ ] "if people felt impatient with the irish," said mr. fawcett, addressing a political meeting at shoreditch on november nd, , "they should remember that the irish were, to a great extent, what england had made them. if there were some irishmen now displaying bitter hostility to england, it should be remembered that for a long time ireland had been treated as if she had been a hostile or a foreign country. a mass of vexatious restrictions were imposed on her industry, and it was thought that if any branch of irish trade interfered with english profits, that branch of irish trade was immediately to be discouraged. for a long time, for instance, to please the agricultural interests of this country, the importation of live cattle from ireland was absolutely prohibited." these statements of leading public men are strong evidence of the far-reaching effects upon ireland of a system which mr. john morley, writing on a literary topic, has not hesitated to designate as "the atrocious fiscal policy of great britain,"[ ] and for which earl cowper, speaking at belfast as lord-lieutenant of ireland, could find no gentler adjectives than "unjust and iniquitous."[ ] in the following pages i propose to exhibit summarily the material injuries inflicted upon ireland by the commercial or anti-commercial arrangements of great britain. with this view, i will endeavour to sketch in outline the political relations of ireland to great britain which rendered such arrangements possible (chap. i.); the principal laws made by the english parliament in restraint of irish trade stating them in a plain and popular manner (chap. ii.); the opposition of the english government to the efforts of the irish parliament to promote irish trade (chap. iii.); the immediate effects of english legislation on irish trade (chap. iv.); the irish volunteer movement and free trade (chap. v.); the commercial arrangements between great britain and ireland, - (chap. vi.); the commercial arrangements effected between great britain and ireland by the act of legislative union (chap. vii.). in this inquiry i will, as far as possible, confine myself to an examination of the statutes, which will speak for themselves; to the journals of the parliaments of england and ireland; and to the statements of contemporary speakers and writers whose accuracy has not, so far as i am aware, been impeached. footnotes: [ ] hansard, , third series, p. . [ ] hansard, , third series, p. . [ ] hansard, , third series, pp. , . [ ] hansard, , third series, p. . [ ] hansard, , third series, p. . [ ] "new views on ireland," by c. russell, q.c., m.p., pp. , . [ ] "english men of letters"--"edmund burke," by john morley, p. . [ ] _freeman's journal_, nov. th, . contents. page chapter i. the political relations of ireland to great britain chapter ii. english legislation in restraint of irish trade chapter iii. english opposition to efforts of the irish parliament in favour of irish trade chapter iv. the immediate effects of english legislation on irish trade chapter v. the irish volunteer movement and free trade chapter vi. the commercial arrangements between england and ireland, - chapter vii. the commercial arrangements between england and ireland effected by the act of legislative union english interference with irish industries. chapter i. the political relations of ireland to great britain. the interference of the english government with irish trade before was twofold, direct and indirect. the direct interference arose from statutes passed in the english parliament in restraint of irish commerce. the indirect interference arose from the influence of the english government over the legislation of the irish parliament, under the provisions of the statute known as poynings' act. "from the admitted dependence," says mr. butt, "of the crown of ireland upon that of england, arose the claim of the english parliament to legislate for ireland. over all the colonies and dependencies of the british crown, the british parliament had exercised the right of legislation. over ireland they asserted the same right. i need not tell you how fiercely it was contested, and that it was finally abandoned in . but, up to , the right was asserted, and occasionally exercised."[ ] these english statutes were chiefly aimed against the irish manufactures, and were, of course, clear violations of ireland's parliamentary independence. the th geo. i. passed by the english parliament[ ] claimed the power of british legislation over ireland, a power which had been exercised long previously. "if that power," said mr. o'connell, "so claimed, had really existed, where was the necessity for passing that statute? and while this act proclaims the slavery of ireland, it admits the pre-existence of freedom."[ ] the nature and effects of poynings' act, and the control given to the english government by its provisions over irish legislation, are thus concisely stated by mr. butt: "to complete our view of the irish parliament, we must remember that by an act of that parliament itself a most important restriction was placed upon its legislative powers. by an irish act of parliament, passed in the reign of henry vii., in the year , it was enacted that no bill should be presented to the irish parliament until the heads of it had been submitted to the english privy council, and certified as approved of under the great seal of england. this law is known as poynings' law, from the name of the person who was lord deputy when it was passed. this law was a matter entirely distinct from any claim of the english parliament to legislate for ireland; it was a law of the irish parliament itself, passed by the king, lords, and commons of ireland, deriving its authority from a source entirely independent of the english claim, and continuing in force when that claim was abandoned. the original law required the assent of the english privy council to be given to the intended bill before parliament met. in the reign of queen mary it was modified so as to admit of that assent being given while parliament was sitting; but that assent was still necessary to authorise the introduction of the bill. with this modification the law of poynings continued in force up to ."[ ] we see, accordingly, that england claimed or exercised direct legislative control in her own parliament over ireland; while no irish bills could become law or, indeed, in strictness, be introduced into the irish parliament without the sanction of the english privy council.[ ] "ireland," says mr. froude, "was regarded as a colony to be administered, not for her own benefit, but for the convenience of the mother country."[ ] footnotes: [ ] "proceedings of the home rule conference," , p. . [ ] geo. i., c. (eng.). [ ] "report of the discussion in the dublin corporation on repeal of the union," , p. . [ ] "proceedings of the home rule conference," , pp. , . [ ] for further account of the constitution and powers of the irish parliament, see "the irish parliament: what it was, and what it did," by j. g. swift macneill, published by cassell & company, limited. [ ] "english in ireland," vol. i., p. . chapter ii. english legislation in restraint of irish trade. persons familiar with the relative economic conditions of great britain and ireland at the present time, will find it difficult to realise that at one period ireland enjoyed natural advantages in no respect inferior to those of the sister country. this, before the development of steam-power, was undoubtedly the fact. this would be still the case were it not for the dearth of coal in ireland.[ ] the evidence of public men of the last century, who were well acquainted with the circumstances of both countries, is on this point conclusive. "ireland," writes edmund burke in , "is a country in the same climate and of the same natural qualities and productions with this (england)."[ ] "in ireland," writes hely hutchinson in , "the climate, soil, growth, and productions are the same as in england."[ ] plunket, in his speech against the union, delivered in the irish parliament on the th of january, , draws a comparison between england and ireland, in which he describes england as "another happy little island placed beside her (ireland) in the bosom of the atlantic, of little more than double her territory and population, and possessing resources not nearly so superior to her wants."[ ] mr. froude's researches lead him to a similar conclusion: "before the days of coal and steam, the unlimited water-power of ireland gave her natural advantages in the race of manufactures, which, if she had received fair play, would have attracted thither thousands of skilled immigrants."[ ] i do not propose to furnish an exhaustive statement of the various laws passed by the english parliament for the avowed purpose of destroying irish trade and manufactures. i will deal only with the salient features of that system whose effects are, at the present day, sadly apparent. till the reign of charles ii., england placed no restriction on irish commerce or manufactures. "before the restoration," says lord north, in the british house of commons, "they (the irish) enjoyed every commercial advantage and benefit in common with england."[ ] "ireland," writes hely hutchinson, "was in possession of the english common law and of magna charta. the former secures the subject in the enjoyment of property of every kind, and by the latter _the liberties of all the ports of the kingdom are established_."[ ] "our trade," says mr. gardiner in the irish house of commons, "was guaranteed by magna charta, our exports acknowledged by that venerable statute--no treaty was made in which we were not nominally or virtually included."[ ] by one of the provisions of poynings' law, passed in , all statutes hitherto in force in england were extended to ireland. before that enactment, however, ireland is expressly mentioned in several english commercial statutes, in which clauses are inserted for the protection of her trade.[ ] "at this period ( )," says hely hutchinson, "the english commercial system and the irish, so far as it depended on english statute law, was the same; and before this period, so far as it depended on the common law and magna charta, was also the same. from that time till the th of king charles ii., which takes in a period of years, the commercial constitution of ireland was as much favoured and protected as that of england."[ ] the first navigation act of put england and ireland on exact terms of equality.[ ] this community of rights was emphasised by an act of the following year, which provided that foreign-built ships should not have the privilege of ships belonging to england and ireland.[ ] "but," as mr. froude observes, "the equality of privilege lasted only till the conclusion of the settlement and till the revenue had been assigned to the crown."[ ] in the amended navigation act of , ireland was left out. lord north, on december , , when prime minister of england, in introducing a bill to abrogate some of the restrictions on irish trade, thus described the act of : "the first commercial restriction was laid on ireland not directly, but by a side-wind and by deductive interpretation. when the act (the navigation act of ) first passed there was a general governing clause for giving bonds to perform the conditions of the act; but when the act was amended in the car. ii. the word 'ireland' was omitted, whence a conclusion was drawn that the acts of the two preceding parliaments, & and car. ii., were thereby repealed, though it was as clearly expressed in those acts as it was possible for words to convey, that ships built in ireland, navigated with the people thereof, were deemed british, and qualified to trade to and from british plantations, and that ships built in ireland and navigated with his majesty's subjects of ireland, were entitled to the same abatement and privileges to which imports and exports of goods in british-made ships were entitled by the book of rates. ireland was, however, omitted in the manner he had already mentioned."[ ] this act, which is entitled "an act for the encouragement of trade," prohibited all _exports_ from ireland to the colonies.[ ] it likewise prohibited the importation of irish cattle into england. it states that "a very great part of the richest and best land of this kingdom (england) is, and cannot so well otherwise be employed and made use of as in the feeding and fattening of cattle, and that by the coming in of late in vast numbers of cattle already fatted such lands are in many places much fallen, and like daily to fall more in their rents and values, and in consequence other lands also, to the great prejudice, detriment, and impoverishment of this kingdom;"[ ] and it imposes a penalty on every head of great cattle imported. a subsequent british act declares the importation of irish cattle into england to be "a publick and common nuisance."[ ] it likewise forbids the importation of beef, pork, or bacon. butter and cheese from ireland were subsequently excluded, and the previous statute excluding cattle was made perpetual.[ ] in the exportation to ireland from the english plantations of sugar, tobacco, cotton-wool, indigo, ginger, fustic or other dyeing wood, the growth of the said plantations, was prohibited by statute. it is stated in the statute that this restraint was intended by the act of , but not effectively expressed.[ ] "there are," says lord north, "anecdotes still extant relative to the real causes of those harsh and restrictive laws. they were supposed to have originated in a dislike or jealousy of the growing power of the then duke of ormonde, who, from his great estate and possessions in ireland, was supposed to have a personal interest in the prosperity of that kingdom. indeed, so far was this spirit carried, whether from personal enmity to the duke of ormonde, from narrow prejudices, or a blind policy, that the parliament of england passed a law to prohibit the importation of irish lean cattle."[ ] an extensive and profitable cattle trade which ireland had established with bristol, milford, and liverpool was annihilated by this legislation. with the restriction of her chief exports, her shipping trade suffered a simultaneous eclipse. such direct trade as she retained was with france, spain, and portugal, as if england wished to force her, in spite of herself, to feel the catholic countries to be her best friends.[ ] till the irish had, according to carte, no commerce but with england, and scarcely entertained a thought of trafficking with other countries.[ ] this writer gives melancholy evidence as to the immediate effect of that restrictive legislation. "the people," he says, "had no money to pay the subsidies granted by parliament, and their cattle was grown such a drug, that horses that used to be sold for s. were now sold for dogs' meat at d. apiece, and beeves that brought before s. were now sold for ten."[ ] deprived of their trade, the irish people, under the guidance of the duke of ormonde, set themselves resolutely to improve their own manufactures. "the history of ireland," says chief justice whiteside, "for nigh half a century may be read in the life, actions, and adventures of this able, virtuous, and illustrious man. his chivalrous courage, his unflinching loyalty, his disinterested patriotism, mark him out as one of the foremost men of his noble family, and as one of the finest characters of his age."[ ] in , lord sydney, the lord-lieutenant, in his speech from the throne, was able, from his former knowledge of the country, to testify to its vastly increased prosperity.[ ] "the cause of this prosperity should," says hely hutchinson "be mentioned. james, the first duke of ormonde, whose memory should ever be revered by every friend of ireland, to heal the wound that this country had received by the prohibition of the export of her cattle to england, obtained from charles ii. a letter, dated the rd of march, , by which he directed that all restraints upon the exportation of commodities of the growth or manufacture of ireland to foreign parts should be taken off, but not to interfere with the plantation laws, or the charters to the trading companies, and that this should be notified to his subjects of this kingdom, which was accordingly done by a proclamation from the lord-lieutenant and council; and at the same time, by his majesty's permission, they prohibited the importation from scotland of linen, woollen, and other manufactures and commodities, as drawing large sums of money out of ireland, and a great hindrance to manufactures. his grace successfully executed his schemes of national improvement, having by his own constant attention, the exertion of his extensive influence, and the most princely munificence, greatly advanced the woollen and revived the linen manufactures."[ ] ormonde established a woollen manufactory at clonmel, "the capital of his county palatine of tipperary, bringing over five hundred walloon families from the neighbourhood of canterbury to carry it on, and giving houses and land on long leases with only an acknowledgment instead of rent from the undertakers. also in kilkenny and carrick-on-suir the duke established large colonies of those industrious foreigners, so well skilled in the preparation and weaving of wool."[ ] the woollen manufacture was the "true and natural staple of the irish, their climate and extensive sheep-grounds insuring to them a steady and cheap supply of the raw material, much beyond their home consumption."[ ] it was cultivated for several years after the revolution without any interference by the english parliament. it had, however, long previously excited the jealous hatred of english statesmen. "i am of opinion," says lord strafford, writing, when lord-lieutenant, from ireland to charles i. in , "that all wisdom advises to keep this kingdom as much subordinate and dependent upon england as is possible, and holding them from the manufacture of wool (which, unless otherwise directed, i shall by all means discourage), and then enforcing them to fetch their clothing from thence, and to take their salt from the king (being that which preserves and gives value to all their native staple commodities), how can they depart from us without nakedness and beggary? which is of itself so mighty a consideration that a small profit should not bear it down."[ ] this proposal i will not characterise. "in , sir william temple, at the request of the earl of essex, then viceroy of ireland, publicly proposed that the manufacture of woollens (except in the inferior branches) should be relinquished in ireland as tending to interfere prejudicially with the english trade. in all probability the irish manufacturers of broadcloths would gain on their english rivals, and the improvement of woollen fabrics in ireland, argued the statesman, 'would give so great a damp to the trade of england, that it seems not fit to be encouraged here.'"[ ] these suggestions were not immediately acted on. in no doubt the exportation of irish woollen goods to england was prohibited, but this enactment did not at the time inflict material injury on ireland.[ ] in a bill was introduced into the english house of commons, forbidding all export from ireland of her woollen manufactures. it reached the house of lords, but parliament was dissolved before it passed its final stage in that assembly. the destruction of the woollen trade is one of the most disastrous chapters of irish history. the circumstances attending this transaction are detailed in an appendix to the "report from the select committee on the linen trade of ireland," which was printed on the th of june, , by order of the house of commons. this paper was prepared by lord oriel, who, as mr. foster, was chancellor of the irish exchequer and afterwards speaker of the irish house of commons. he was one of the greatest authorities of his time on trade and finance. the report thus describes an incident which is, i believe, without parallel. "this export (the woollen) was supposed to interfere, and very probably did, with the export from britain, and a plan was in consequence undertaken there to annihilate the woollen trade of ireland, and to confine us to the linen manufacture in its place. "accordingly an act was passed in england, ( & will., c. ), for inviting foreign protestants to settle in ireland, as the preamble recites, and with that view enacting that the imports of all sorts of hemp and flax, and all the productions thereof, should from thenceforth be admitted duty free from ireland into england, giving a preference by that exemption from duty to the linen manufacture of ireland over the foreign, estimated at the time, as a report of the irish house of commons, on the th february, , states, to be equal to per cent. "this happened in , and in pursuance of the foregoing plan both houses of the english parliament addressed king william on the th june, . "the lords stated in their address that 'the growing manufacture of cloth in ireland, both by the cheapness of all sorts of necessaries of life, and the goodness of materials for making all manner of cloth, doth invite your subjects of england, with their families and servants, to leave their habitations and settle there, to the increase of the woollen manufacture in ireland, which makes your loyal subjects in this kingdom very apprehensive that the further growth of it may greatly prejudice the said manufacture here, by which the trade of this nation and the value of lands will greatly decrease, and the number of your people be much lessened here; wherefore we humbly beseech your most sacred majesty that your majesty would be pleased, in the most public and effectual way that may be, to declare to all your subjects of ireland that the growth and increase of the woollen manufacture there hath long and will be ever looked upon with great jealousy by all your subjects of this kingdom, and if not timely remedied, may occasion very strict laws totally to prohibit and suppress the same; and, on the other hand, if they turn their industry to the settling and improving the _linen manufacture_, for which generally the lands are very proper, _they shall receive all the countenance, favour, and protection from your royal influence for the encouragement and promotion of the linen manufacture to all the advantage and profit they can be capable of_.' "the commons stated their sentiments at the same time in the following terms: 'we,[ ] your majesty's most dutiful and loyal subjects, the commons in parliament assembled, being very sensible that the wealth and power of this kingdom do in a great measure depend on the preservation of the woollen manufacture as much as possible entire to this realm, think it becomes us, like our ancestors, to be jealous of the increase and establishment of it elsewhere, and to use our utmost endeavours to prevent it. and, therefore, we cannot without trouble observe that ireland, which is dependent on and protected by england in the enjoyment of all they have, and which is so proper for the linen manufacture, the establishment and growth of which there would be so enriching to themselves, and so profitable to england, should of late apply itself to the woollen manufacture, to the great prejudice of the trade of this kingdom, and so unwillingly promote the linen trade, which would benefit both themselves and us; the consequence whereof will necessitate your parliament of england to interpose to prevent the mischief that threatens us, unless your majesty by your authority and great wisdom shall find means to secure the trade of england, by making your subjects of ireland to pursue the joint interests of both kingdoms. and we do most humbly implore your majesty's protection and favour in this matter, that you will make it your royal care, and enjoin all those you employ in ireland to make it their care, and use their utmost diligence, to hinder the exportation of wool from ireland except to be imported hither, and for discouraging the woollen manufacture and encouraging the linen manufacture of ireland, _to which we shall always be ready to give our utmost assistance_.' "his majesty thus replied to the commons[ ]:--'_i shall do all that in me lies to_ discourage the woollen manufacture in ireland _and encourage the linen manufacture there_, and to promote the trade of england.' "stronger declarations could not well be made than in these addresses and answers, that if the irish would come into the compact of giving up their then great staple of woollens to england, and cultivating the linens in lieu thereof, they should receive '_all the countenance, favour, and protection for the encouragement and promotion of their linen manufacture to all the advantages their kingdom was capable of_,' that the commons would always be ready to give their utmost assistance, and his majesty would do all that in him lay _to encourage the linen manufacture there_; and they had the effect of inducing the parliament of ireland to accede, as will appear from what follows. "the lords justices of ireland say, in their speech to the irish parliament, the th september, :[ ] 'amongst those bills there is one for the encouragement of the linen and hempen manufactures. at our first meeting we recommended to you that matter, and we have now endeavoured to render that bill practicable and useful for that effect, and as such we now recommend it to you. the settlement of this manufacture will contribute much to people the country, and will be found much more advantageous to this kingdom than the woollen manufacture, which, being the settled staple trade of england, can never be encouraged here for that purpose; _whereas the linen and hempen manufactures will not only be encouraged, as consistent with the trade of england, but will render the trade of this kingdom both useful and necessary to england_.' "the commons replied: 'we pray leave to assure your excellencies that we shall heartily endeavour to establish a linen and hempen manufacture here, and to render the same useful to england, as well as advantageous to this kingdom; and we hope to find such a _temperament_ in respect to the woollen trade here that the same may not be injurious to england.'[ ] in pursuance of this answer they evinced that _temperament_ most effectually by passing an act[ ] for laying prohibitory duties on the export of _their own_ woollen manufacture--thus accepting the national compact and fully performing their part of the agreement, and by that performance giving an incontrovertible claim to ireland upon england, and consequently upon great britain, for a perpetual encouragement of the linen manufacture '_to all the advantage and profit that ireland should at any time be capable of_.' "it is to be observed that so anxious was england to confirm and enforce this ratification given by ireland, that their parliament soon after passed a law affecting to enact what subsequent times have shown it was incompetent to, and which we therefore here mention merely to point out the stress which england laid on the sacrifice made by ireland of its great and natural staple trade, in exchange for a new staple resting on a material not the natural growth of the country, and the establishment of which was but in its infancy, though nurtured for near sixty years by the government of the kingdom. the act we refer to is the & will. iii., cap. , which recites 'that wool and the woollen manufacture of cloth, serge, bays, kerseys, and other stuffs made or mixed with wool, are the greatest and most profitable commodities of the kingdom, on which the value of lands and the trade of the nation do chiefly depend; that great quantities of the _like manufactures_ have of late been made, and _are daily increasing in the kingdom of ireland_, and in the english plantations in america, _and are exported from thence to foreign markets heretofore supplied from england_: all which inevitably tends to injure the value of lands, and to ruin the trade and woollen manufactures of the realm; and that for the prevention thereof the export of wool and of the woollen manufacture from ireland be prohibited under the forfeiture of goods and ship, and a penalty of £ for every such offence.'" ireland's woollen manufacture was thus sacrificed to england's commercial jealousy.[ ] i will give hereafter some account of the widespread misery this industrial calamity entailed. it might have been expected that the solemn compact for the encouragement of the linen trade would have been scrupulously observed. this, however, was not the case. the english parliament deliberately broke faith with the irish people. this charge i will substantiate by quotations from the speeches of public men in the english parliament, the words of the english statute book, and the admissions of english writers. lord rockingham, speaking in the english house of lords on the th of may, , "reminded their lordships of the compact made between both kingdoms in king william's time, when the parliament of ireland consented to prohibit the export of their own woollen manufacture, in order to give that of england a preference, by laying a duty equal to a full prohibition on every species of woollens, or even of the raw commodity, and of the solemn assurances given by both houses of the british parliament that they would give every possible encouragement, and abstain from every measure which could prevent the linen manufacture to be rendered the staple of ireland. but how had england kept its word? by laying duties or granting bounties to the linens of british manufacture equal to a prohibition of the irish, and at the same time giving every kind of private and public encouragement to render scotland a real rival to ireland in almost every species of her linen fabrics."[ ] "ireland," says lord north when prime minister of england, in the speech from which i have previously quoted, "gave up her woollen trade by compact. the compact was an exclusive linen trade, rather a fair competition with england. ireland, of her own accord, gave up the woollen trade by an act of her own legislature, which, when it expired, was made perpetual by an act of the british parliament. but this compact was no sooner made than it was violated by england, for, instead of prohibiting foreign linens, duties were laid on and necessarily collected, so far from amounting to a prohibition on the import of the dutch, german, and east country linen manufactures, that those manufactures have been able, after having the duties imposed on them by the british parliament, to meet, and in some instances to undersell, ireland both in great britain and the west indies, and several other parts of the british empire."[ ] writing in to the opponents of some trifling relaxation of the commercial restraints of ireland, edmund burke asks: "do they forget that the whole woollen manufacture of ireland, the most extensive and profitable of any, and the natural staple of that kingdom, has been in a manner so destroyed by restrictive laws of _their own_, that in a few years it is probable they (the irish) will not be able to wear a coat of their own fabric? is this equality? do gentlemen forget that the understood faith upon which they were persuaded to such an unnatural act has not been kept, and that a linen manufacture has been set up and highly encouraged against them?"[ ] in the year heavy taxes were laid on the import to england of sail-cloth made of irish hemp, contrary, of course, to the express stipulation of . an address presented in to lord harcourt, the viceroy, by the irish house of commons thus describes the effect of this measure: "they had been confined by law to the manufacture of flax and hemp. they had submitted to their condition, and had manufactured these articles to such good purpose that at one time they had supplied sails for the whole british navy. their english rivals had now crippled them by laying a disabling duty on their sail-cloths, in the hope of taking the trade out of their hands, but they had injured ireland without benefiting themselves. the british market was now supplied from holland and germany and russia, while to the empire the result was only the ruin of ulster and the flight of the protestant population to america."[ ] i have dwelt thus at length on the chief commercial restraints laid on ireland by the direct legislation of england. this interference was, however, carried to almost every branch of irish trade. to take a few examples. lord north in the english parliament gives the following account of england's dealings with the irish glass trade:-- "previous to the th geo. ii., ireland imported glass from other countries, and at length began to make some slow progress in the lower branches of the manufacture itself. by the act alluded to, however, the irish were prohibited from importing any kind of glass other than the manufacture of great britain, and in section of that act a most extraordinary clause was inserted. it not only ordained that no glass, the manufacture of that kingdom, should be exported, but it was penned so curiously, and with so much severe precision, that no glass of the manufacture of ireland was to be exported, or so much as to be laden on any horse or carriage with intent to be so exported. this was, in his opinion, a very extraordinary stretch of the legislative power of great britain, considering the smallness of the object. the act was much, very much complained of in ireland, and apparently with very great justice both as to principle and effect. it was an article of general use in ireland. the manufacturers of glass there, when thus restrained both as to export and import, could not pretend to vie with the british; the consequence of which was that the latter, having the whole trade to themselves, fixed the price of the commodity as they liked."[ ] by the anne, c. , and geo. ii., c. , and geo. ii., c. , no hops but of british growth could be imported into ireland. by the geo. i., it was enacted that the duty on hops exported from england should not be drawn back in favour of irish consumers.[ ] irish cotton manufactures imported to england were subject to an import duty of twenty-five per cent., while a statute of geo. i. enacted penalties on the wearing of such manufactures in great britain unless they were made there. the raw material for silk came to ireland through england. the original import duty in england was d. in the pound, of which d. in the pound was retained there.[ ] irish beer and malt, too, were excluded from england, whereas english beer and malt were imported into ireland at a nominal duty. "hats, gunpowder, coals, bar-iron, iron-ware, and several other matters, some of which ireland had not to export, and others of which she had very little, were at different times the objects of english restrictions, whenever it was fancied that english interests were at all threatened by them."[ ] it was this legislation that caused edmund burke to ask, "is ireland united to the crown of great britain for no other purpose than that we should counteract the bounty of providence in her favour, and in proportion as that bounty has been liberal that we are to regard it as an evil which is to be met with in every sort of corrective?"[ ] "england," says mr. froude, "governed ireland for what she deemed her own interest, making her calculation on the gross balance of her trade ledgers, and leaving her moral obligations to accumulate, as if right and wrong had been blotted out of the statute book of the universe."[ ] "one by one of each of our nascent industries," observes lord dufferin, "was either strangled in its birth, or handed over gagged and bound to the jealous custody of the rival interest of england, until at last every fountain of wealth was hermetically sealed, and even the traditions of commercial enterprise have perished through desuetude." this sketch of english legislation for irish trade would leave the impression that the parliaments of great britain were as lavish in their efforts to suppress industrial enterprise in that country as any british trader could reasonably desire. it will surprise us to find that this atrocious code was not regarded as sufficiently thorough. "in the year ," says hely hutchinson, "two petitions were preferred from folkestone and aldborough, stating a singular grievance that they suffered from ireland 'by the irish catching herrings at _waterford and wexford_, and sending them to the streights, and thereby _forestalling_ and ruining petitioners' markets;' but these petitioners had the _hard lot_ of having motions in their favour rejected."[ ] footnotes: [ ] ireland, however, has natural advantages which must not be forgotten in any estimate of her economical position, and which, although they do not compensate her for the want of coal, would under proper application do much to promote her prosperity. thus mr. o'connell, towards the conclusion of his speech in his own defence, in the state trials of , says: "the country is intersected with noble estuaries. ships of tons' burthen ride into the heart of the country, safe from every wind that blows. no country possesses such advantages for commerce; the machinery of the world might be turned by the water-power of ireland. take the map and dissect it, and you will find that a good harbour is not more remote from any spot in ireland than thirty miles." (r. _v._ o'connell, p. .) mr. chaplin, in the speech to which i have referred, remarks: "no doubt ireland does possess exceptional advantages in water-power which might be turned to great advantage." (hansard, , third series, p. .) ireland is not, however, absolutely devoid of coal. "though," says mr. c. dawson, "we make no boast of our mineral treasures, they are, according to competent authority, well worthy of development. according to professor hull, the leinster coal-basin contains million tons, only outputting , tons per annum. in the north, especially in tyrone, at coal island, there are , acres of coal-bed ( , , tons), which the professor says are by far the most valuable in ireland. in the other districts in ireland there are over , , tons. sir r. kane supports the suggestion that borings should be made by the government in this district to ascertain if the mineral wealth existed to the extent computed by professor hull, and he adds that when the panic arose in england about the duration of its coal supply, coal was looked for then outside the limits of the recognised coal-fields, and following them down into the chalk in kent and other places, of which ireland was one." ("the influence of an irish parliament on irish industries," lecture by mr. charles dawson, _freeman's journal_, jan. , .) [ ] "burke on irish affairs," by m. arnold, p. . [ ] "commercial restraints," p. . mr. secretary orde, in introducing in the irish house of commons, in , the commercial propositions, said: "great britain was aware of the preferable commercial situation of ireland." ("irish debates," iv., p. .) [ ] "life and speeches of lord plunket," by the right hon. d. plunket, vol. i., pp. , . [ ] "english in ireland," vol. i., p. . [ ] "parliamentary debates," xv., p. . [ ] "commercial restraints," p. . [ ] "irish debates," iii., p. . henry, archbishop of dublin, is mentioned in magna charta as one of the barons whose "advice" led to the signing of that instrument by john. this prelate, henry de loundres, or "the londoner," erected st. patrick's church, dublin, into a cathedral, and created the offices of precentor, chancellor, treasurer, and dean--the last a post destined to be rendered famous five centuries later by the incumbency of swift. strange that at far-distant periods of time st. patrick's cathedral should be associated with the names of two illustrious assertors of liberty! [ ] these enactments are mentioned in the "commercial restraints," pp. - . [ ] "commercial restraints," p. . [ ] car. ii., c. . [ ] & car. ii., c. , s. . [ ] "english in ireland," i., p. . [ ] "parliamentary debates," xv., pp. , . edmund burke, speaking in the british house of commons, on may th, , thus commented on this transaction: "in the car. ii. the navigation acts passed, extending to ireland, as well as england. a kind of left-handed policy, however, had deprived her of the freedom she enjoyed under that act, and she had ever since remained under the most cruel, oppressive, and unnatural restrictions." ("parliamentary debates," viii., p. .) [ ] except victuals, servants, horses, and salt, for the fisheries of new england and newfoundland. [ ] car. ii., c. , s. . [ ] car. ii., c. . [ ] car. ii., c. . irish cattle were readmitted into england by the geo. ii., c. . this was but a temporary enactment, but it was renewed without difficulty. hely hutchinson says it was acknowledged that the importation did not lower english rents. ("commercial restraints," p. .) [ ] & car. ii., c. . [ ] "parliamentary debates," xv., p. . [ ] "english in ireland," i. . [ ] carte's "ormonde," ii. . [ ] carte's "ormonde," ii. . [ ] "life and death of the irish parliament," p. . [ ] "irish commons' journals," ii. . [ ] "commercial restraints," p. . [ ] "irish wool and woollens," by s. a., p. . [ ] "report from the select committee on the linen trade of ireland, th june, ." [ ] "life of thomas wentworth, earl of strafford," by elizabeth cooper, i., pp. , . miss cooper comments severely "on the stolid unconsciousness of wrongdoing by such a design, the undreamed-of suspicion that such a proposal could be received with any other feeling than that of approbation." it is but just to the memory of strafford to state that he endeavoured to develop the linen manufacture in ireland. he sent to holland for flax seed, and invited flemish and french artisans to settle in ireland. "in order to stimulate the new industry, the earl himself embarked in it, and expended not less than £ , of his private fortune in the enterprise. it was afterwards made one of the grounds of his impeachment that he had obstructed the industry of the country by introducing new and unknown processes into the manufacture of flax. it was, nevertheless, greatly to the credit of the earl that he should have endeavoured to improve the industry of ireland by introducing the superior processes employed by foreign artisans, and had he not attempted to turn the improved flax manufacture to his own advantage by erecting it into a personal monopoly, he might have been entitled to regard as a genuine benefactor of ireland." (smiles's "huguenots," p. .) dr. smiles, in this passage, speaks of the linen manufacture as a "new industry." the "report from the select committee on the linen trade of ireland" states that that trade was "first planted in ireland by lord strafford" (appendix, p. ), and miss cooper gives him credit "for the establishment of the linen manufacture in ireland." ("life of lord strafford," i., p. .) these statements are not, i think, historically correct. mr. lecky shows that, although lord strafford stimulated the linen trade, he did not found it. "the linen manufacture may, indeed, be dimly traced far back into irish history. it is noticed in an english poem in the early part of the fifteenth century. a century later guicciardini, in his 'description of the low countries,' mentions coarse linen as among the products imported from ireland to antwerp. strafford had done much to encourage it, and after the calamities of the cromwellian period the duke of ormonde had laboured with some success to revive it." ("england in the eighteenth century," ii., pp. , .) see also, for some very valuable remarks on this subject, "irish wool and woollens," pp. , . [ ] "irish wool and woollens," p. . see also newenham on "the population of ireland," pp. , . [ ] car. ii., c. . a duty equal to a prohibition was laid on those goods. [ ] "english commons' journals," xii., p. . [ ] "english commons' journals," xii. . [ ] "irish commons' journals," ii., p. . [ ] "irish commons' journals," ii., p. . [ ] irish statutes, will. iii., c. . [ ] subsequent acts completed this annihilation. "the next act," says lord north, after enumerating the acts mentioned above, "was an act of the th geo. i., the next the th and th of the late king (geo. ii.), which last went so far as to prohibit the export of a kind of woollen manufacture called waddings, and one or two other articles excepted out of the th and th of king william; but these three last acts swept everything before them." ("parliamentary debates," xv. , .) [ ] "parliamentary debates," vol. xiii., . [ ] "parliamentary debates," vol. xv., . [ ] "irish affairs," pp. , . [ ] "english in ireland," vol. ii., p. . mr. lecky thus succinctly states the particulars attending the breach of the linen compact:--"the main industry of ireland had been deliberately destroyed because it had so prospered that english manufacturers had begun to regard it as a competitor with their own. it is true, indeed, that a promise was made that the linen and hempen manufacture should be encouraged as a compensation, but even if it had been a just principle that a nation should be restricted by force of law to one or two forms of industry, there was no proportion between that which was destroyed and that which was to be favoured, and no real reciprocity established between the two countries." mr. lecky having stated the antiquity of the linen manufacture and its vicissitudes in ireland, and having mentioned that "in the value of the export of irish linen amounted to little more than £ , ," thus proceeds:--"the english utterly suppressed the existing woollen manufacture in ireland in order to reserve that industry entirely to themselves, but the english and scotch continued, as usual, their manufacture of linen. the irish trade was ruined in , but no legislative encouragement was given to the irish linen manufacture till , when, at the urgent petition of the irish parliament, the irish were allowed to export their white and brown linens, but these only to the british colonies, and they were not permitted to bring any colonial goods in return. the irish linen manufacture was undoubtedly encouraged by bounties, but not until , when the country had sunk into a condition of appalling wretchedness. in spite of the compact of , the hempen manufacture was so discouraged that it positively ceased. disabling duties were imposed on irish sail-cloth imported into england. irish checked, striped, and dyed linens were absolutely excluded from the colonies. they were virtually excluded from england by the imposition of a duty of per cent., and ireland was not allowed to participate in the bounties granted for the exportation of these descriptions of linen from great britain to foreign countries."--"eighteenth century," vol. ii., pp. - . see also, "an argument for ireland," by j. o'connell, m.p., pp. - . [ ] "parliamentary debates," vol. xv., , . [ ] "commercial restraints," pp. , . [ ] see "an argument for ireland," p. . [ ] "an argument for ireland," by j. o'connell, m.p., p. . [ ] burke on "irish affairs," p. . [ ] "english in ireland," vol. i., p. . [ ] "commercial restraints," pp. , . see "english commons' journals," , p. . in this summary of the laws enacted by the english parliament in restraint of irish trade, i have dealt merely with legislation of a permanent character. "when," says hely hutchinson, in , "the commercial restraints of ireland are the subject, a source of occasional and ruinous restrictions ought not to be passed over. since the year there have been twenty-four embargoes in ireland, one of which lasted three years." "commercial restraints," pp. , . the system of embargoes called forth the indignation of arthur young, the celebrated english traveller. the prohibition of woollens, etc., was, he says, at least advantageous to similar manufactures in england, but "in respect to embargoes, even this shallow pretence is wanting; a whole kingdom is sacrificed and plundered, not to enrich england, but three or four london contractors." see also lecky's "eighteenth century," iv., p. . chapter iii. english opposition to efforts of the irish parliament in favour of irish trade. mr. fox, speaking in the british house of commons on the th of may, , as a responsible minister of the crown, thus stated the nature and effect of the legislation of the english parliament with reference to irish trade: "the power of external legislation had been employed against ireland as an instrument of oppression, to establish an impolitic monopoly in trade, to enrich one country at the expense of the other."[ ] the english government was, previously to the revolution of , able to dominate the legislation of the irish parliament under the provisions of poynings' law. that power was used to induce the irish parliament to pass laws prejudicial to the liberties or the commerce of their country, and to prevent the enactment of laws for the protection of irish liberty, and the development of irish industrial energies. thus, when the english houses of parliament addressed william iii. on the subject of the irish woollen trade, both lords and commons suggested that the king should use his influence to induce the irish parliament to restrain that manufacture, without rendering english legislation for the purpose necessary. a few days after these addresses were presented, the king wrote to lord galway, one of the lords justices of ireland, as follows:-- "the chief thing that must be prevented is that the irish parliament take no notice of this here, and that you make effectual laws for the linen manufacture, and discourage as far as possible the woollen. it never was of such importance to have a good session of parliament."[ ] ireland was thus, in the words of mr. froude, "invited to apply the knife to her own throat."[ ] "the irish houses, in dread of abolition if they refused, relying on the promise of encouragement to their linen trade, and otherwise unable to help themselves, acquiesced."[ ] the enactment which they passed was temporary. hely hutchinson says that this law has every appearance of being framed on the part of the administration. the servile body who assented to it soon had reason to know that to tolerate slavery is to embrace it. the law did not satisfy the english parliament, who passed the perpetual enactment to which reference has been previously made.[ ] this is, however, one of the few instances in which the irish parliament was prevailed on to pass laws in restraint of their own trade. even in this case the destruction of the woollen industry was not considered complete until english legislation gave it a final blow. the direct attacks on irish trade were almost exclusively the work of the english parliament; while the english privy council strangled at its birth every beneficial enactment of the irish parliament. the following instances will explain and illustrate the difficulties with which the irish parliament had to contend in every effort to promote the material prosperity of their country:-- "with," says mr. froude, "their shipping destroyed by the navigation act, their woollen manufactures taken from them, their trade in all its branches crippled and confined, the single resource left to those of the irish who still nourished dreams of improving their unfortunate country was agriculture. the soil was at least their own, which needed only to be drained, cleared of weeds, and manured to produce grass crops and corn crops as rich as the best in england. here was employment for a population three times more numerous than as yet existed. here was a prospect, if not of commercial wealth, yet of substantial comfort and material abundance."[ ] after some further observations, mr. froude thus proceeds:--"the tenants were forbidden in their leases to break or plough the soil. the people no longer employed were driven away into holes and corners, and eked out a wretched subsistence by potato gardens or by keeping starving cattle of their own on the neglected bogs. their numbers increased, for they married early, and they were no longer liable, as in the old times, to be killed off like dogs in forays. they grew up in compulsory idleness, encouraged once more in their inherited dislike of labour,[ ] and inured to wretchedness and hunger; and on every failure of the potato crop, hundreds of thousands were starving. of corn very little was grown anywhere in ireland. it was imported from england, holland, italy, and france, but in quantities unequal to any sudden demand. the disgrace of allowing a nation of human beings to subsist upon such conditions forced itself at last on the conscience of the irish parliament, and though composed of landowners who were tempted as much as others to let their farms on the terms most profitable to them, the house of commons in resolved unanimously to make an effort for a general change of system, and to reclaim both people and country by bringing back and stimulating agriculture. they passed a vote that covenants which prohibited the breaking soil with the plough were impolitic, and should have no binding force. they passed heads of a bill, which they recommended with the utmost earnestness to the consideration of the english council, enjoining that for every hundred acres which any tenant held he should break up and cultivate five, and, as a further encouragement, that a trifling bounty should be granted by the government on corn grown for exportation. "and what did england answer? england which was so wisely anxious for the prosperity of the protestant interest in ireland: england which was struggling so pathetically to make the irish peers and gentlemen understand the things that belonged to their peace? the bounty system might or might not have been well calculated to produce the effect which ireland desired. it was the system which england herself practised with every industry which she wished to encourage, and it was not on economic grounds that the privy council rejected a bill which they ought rather to have thrust of their own accord on irish acceptance. the real motive was probably the same which had led to the suppression of the manufactures--the detestable opinion that to govern ireland conveniently ireland must be kept weak. although the corn consumed in ireland had been for many years imported, the english farmers were haunted with a terror of being undersold in their own and foreign markets by a country where labour was cheap. a motive so iniquitous could not be confessed, but the objections which the council were not ashamed to allege were scarcely less disgraceful to them. the english manufacturers having secured, as they supposed, the monopoly of irish wool on their own terms, conceived that the whole soil of ireland ought to be devoted to growing it. the merchants of tiverton and bideford had recently memorialised the crown on the diminution of the number of fleeces which reached them from the irish ports. they attributed the falling off to the contraband trade between ireland and france, which shortened their supplies, enhanced the price, and gave the french weavers an advantage over them. their conjecture, as will be hereafter shown, was perfectly just. the contraband trade, as had been foreseen when the restrictions were imposed, had become enormous. but the commissioners of the irish revenue were unwilling to confess to carelessness. they pretended that the irish farmers, forgetting their obligations to england, and thinking wickedly only of their own interests, were diminishing their stock of sheep, breaking up the soil, and growing wheat and barley. the allegation, unhappily, was utterly untrue. but the mere rumour of a rise of industry in ireland created a panic in the commercial circles of england. although the change existed as yet only in desire, and the sheep-farming, with its attending miseries, was increasing rather than diminishing, stanhope, walpole, sutherland, and the other advisers of the english crown, met the overtures of the irish parliament in a spirit of settled hostility, and, with an infatuation which now appears insanity, determined to keep closed the one remaining avenue by which ireland could have recovered a gleam of prosperity. "the heads of the bill were carried in ireland without a serious suspicion that it would be received unfavourably. a few scornful members dared to say that england would consent to nothing which would really benefit ireland, but they were indignantly silenced by the friends of the government. it was sent over by the duke of grafton, with the fullest expectation that it would be returned. he learnt first with great surprise that 'the tillage bill was meeting with difficulties.' 'it was a measure,' he said, 'which the gentlemen of the country had very much at heart, as the only way left them to improve their estates while they were under such hard restrictions in point of trade.' 'it would be unkind,' he urged, in a second and more pressing letter, 'to refuse ireland anything not unreasonable in itself. he conceived the corn bill was not of that nature, and therefore earnestly requested his majesty would be pleased to indulge them in it.' "stanhope forwarded in answer a report of the english commissioners of customs, which had the merit of partial candour. 'corn,' they said, 'is supposed to be at so low a rate in ireland in comparison with england, that an encouragement to the exportation of it would prejudice the english trade.' "the lords justices returned the conclusive rejoinder that for some years past ireland had imported large quantities of corn from england, which would have been impossible had her own corn been cheaper. 'they could not help representing,' they said, 'the concern they were under to find that verified which those all along foretold who obstructed the king's affairs, and which his friends had constantly denied, that all the marks they had given of duty and affection would not procure one bill for the benefit of the nation.' "the fact of the importation of corn from england could not be evaded; but the commercial leaders were possessed with a terror of irish rivalry which could not be exorcised. the bill was at last transmitted, but a clause had been slipped in empowering the council to suspend the premiums at their pleasure; and the house of commons in disgust refused to take back a measure which had been mutilated into a mockery."[ ] to take another instance, illustrative of the same system, which was in full operation sixty years later. the heads of a bill were introduced in to prevent corn from being wasted in making whisky, and to put some restraint on the vice of drunkenness, which was increasing. this bill was warmly recommended to the english privy council by townshend, the lord-lieutenant of the day, who said, "the whisky shops were ruining the peasantry and the workmen. there was an earnest and general desire to limit them. it will be a loss to the revenue, but it is a very popular bill, and will give general content and satisfaction throughout the kingdom."[ ] "the whisky bill," says mr. froude, "was rejected because the treasury could not spare a few thousand pounds which were levied upon drunkenness."[ ] it must also be borne in mind that although the english parliament could, and, in fact, did, place prohibitory duties on irish goods imported into england, it was quite impossible for the irish parliament to exercise the same power. bills of such a nature would, of course, never obtain the sanction of the english privy council, to whom they must have been submitted. the difference between the duties on the same goods when imported from england into ireland, and from ireland into england, were in some cases striking. "in ireland," says mr. parsons, speaking in the irish parliament in , "no more than d. a yard was imposed on the importation of english cloths, while ours in england were charged with a duty of £ s. d."[ ] mr. pitt, speaking as prime minister in the british house of commons in february, , stated that on most of the manufactures of ireland prohibitory duties were laid by great britain. "they (the irish) had not," he said, "admitted our commodities totally free from duties; they bore, upon an average, about ten per cent."[ ] the helplessness of the irish parliament during this period is demonstrated by hely hutchinson. he states that in , during a period of great distress, the speech from the throne, and the addresses to the king and the lord-lieutenant declare in the strongest terms the great decay of trade, and the very low and impoverished state to which the country was reduced. "but," he says, "it is a melancholy proof of the desponding state of this kingdom, that no law whatever was then proposed for encouraging trade or manufactures, or, to follow the words of the address, for reviving trade or making us a flourishing people, unless that for amending laws as to butter and tallow casks deserves to be so called. and why? because it was well understood by both houses of parliament that they had no power to remove those restraints which prohibited trade and discouraged manufactures, and that any application for that purpose would at that time have only offended the people on one side of the channel, without bringing any relief to those on the other."[ ] the irish parliament did, however, what they could. thus, "in the sessions of , , and , the house of commons resolved unanimously that it would greatly conduce to the relief of the poor and the good of the kingdom, that the inhabitants thereof should use none other but the manufactures of this kingdom in their apparel, and the furniture of their houses; and in the last of those sessions, the members engaged their honours to each other that they would conform to the said resolution."[ ] many of their suggestions for the encouragement of home produce are of extraordinary ingenuity. in , the privy council allowed a bill to become law, entitled "an act to encourage the home consumption of wool by burying in wool only," providing that no person should be buried "in any stuff or thing other than what is made of sheep or lambs' wool only."[ ] the custom, now grotesque and unmeaning, but still in vogue in ireland, of wearing scarfs at funerals, was recommended in the interest of the linen manufacture, and was first introduced in at the funeral of mr. conolly, speaker of the irish house of commons.[ ] so, too, spinning schools were established in every county, and a board of trustees was appointed to watch over the interests of the linen manufacture; "but the utter want of capital, the neglect of the grand juries, the ignorance, poverty, and degradation of the inhabitants, made the attempt to create a new manufacture hopeless."[ ] these efforts of the irish parliament, though of little practical effect, demonstrate their keen appreciation of the sufferings around them and their sympathy with the wants and wishes of their people, who were crushed by a system which mr. pitt has characterised as one "of cruel and abominable restraint."[ ] speaking in the english house of commons in , that statesman bade members "recollect that from the revolution to a period within the memory of every man who heard him, indeed until these very few years, the system had been that of debarring ireland from the enjoyment and use of her own resources, to make that kingdom completely subservient to the interests and opulence of this country, without suffering her to share in the bounties of nature, in the industries of her citizens, or making them contribute to the general interests and strength of the empire."[ ] "no country," says mr. lecky, "ever exercised a more complete control over the destinies of another than did england over those of ireland, for three-quarters of a century after the revolution. no serious resistance of any kind was attempted. the nation was as passive as clay in the hands of the potter, and it is a circumstance of peculiar aggravation that a large part of the legislation i have recounted was a distinct violation of a solemn treaty.[ ] the commercial legislation which ruined irish industry, the confiscation of irish land which demoralised and impoverished the nation, were all directly due to the english government, and the english parliament."[ ] "if," says mr. froude, "the high persons at the head of the great british empire had deliberately considered by what means they could condemn ireland to remain the scandal of their rule, they could have chosen no measures better suited to their end than those which they pursued unrelentingly through three-quarters of a century."[ ] footnotes: [ ] "parliamentary register," p. . [ ] rapin, xvii., p. . the date of this letter is th of july, . the matter was so urgent that william iii. wrote two letters. see "english in ireland," i. . [ ] "english in ireland," vol. i., p. . [ ] _ibid._, p. . [ ] & will. iii., c. . [ ] "english in ireland," vol. i., p. . [ ] the charge of indolence which mr. froude has here preferred against the irish peasantry has frequently been refuted. the accusation is an old one. speaking in the irish house of commons in , the right hon. luke gardiner thus repelled it:--"those who render our people idle are the first to ridicule them for that idleness, and to ridicule them without a cause. national characteristics are always unjust, as there never was a country that has not produced both good and bad." "they are general assertions, as false as they are illiberal. irishmen have shown spirit and genius in whatever they have undertaken." "i call upon gentlemen to specify one instance where the people were indolent when the laws of their country protected them in their endeavours." ("irish debates," iii., p. .) "it is a cant in england," says mr. o'connell, "that they (the irish) are an idle people, but how can that be said when they are to be found seeking employment through every part of the world? they are to be found making roads in scotland and digging canals in the poisonous marshes of new orleans." ("discussion in dublin corporation on repeal of the union," in , p. ) the _times_ of the th of june, , in an article to which i will refer hereafter, says "the irishman is disposed to work." [ ] "english in ireland," vol. i., - . the subsequent history of this bill as related by mr. froude is interesting. it became law in , but was practically ineffective. see lecky's "eighteenth century," ii., . [ ] "english in ireland," vol. ii., , . [ ] "english in ireland," vol. ii., . [ ] "irish debates," vol. iii., . [ ] "parliamentary register," , . [ ] "commercial restraints," pp. - . speaking of the great distress in the years and , hely hutchinson again deplores the inability of the irish parliament to alleviate the misery of the poor. "they (the commons) could not have been insensible of the miseries of their fellow-creatures, many thousands of whom were lost in those years, some from absolute want and many from disorders occasioned by bad provisions. why was no attempt made for their relief? because the commons knew that the evil was out of their reach, and the poor were not employed because they were discouraged by restrictive laws from working up the materials of their own country, and that agriculture could not be encouraged when the lower classes of the people were not enabled by their industry to purchase the produce of the farmer's labour."--("commercial restraints," pp. - .) [ ] "commercial restraints," pp. , . [ ] george ii. (irish) c. . this irish statute was framed on the model of an act passed by the english parliament in , providing that all dead bodies should be wrapped in woollen shrouds. dean swift warmly approved of this measure which, however, he seemed to think would never pass the privy councils. "what," he says, "if we should agree to make burying in woollen a fashion, as our neighbours have made it a law?" swift's works (scott's ed.), vi., p. . [ ] finlayson's "monumental inscriptions in christ church cathedral, dublin," p. . [ ] lecky's "eighteenth century," vol. ii., . [ ] "parliamentary register," , . mr. lecky pays a high compliment to the exertions of the irish parliament to protect the material interests of their country. "during the greater part of the century ( th century) it had little power except that of protesting against laws crushing irish commerce, but what little it could do it appears to have done."--"leaders of public opinion in ireland," p. . [ ] "parliamentary register," , . [ ] mr. lecky refers doubtless to the treaty of limerick. [ ] "eighteenth century," vol. ii., . [ ] "english in ireland," vol. ii., . chapter iv. the immediate effects of english legislation on irish trade. the immediate effects produced upon ireland by the commercial policy of great britain were such as might reasonably be anticipated from the brief and necessarily imperfect account i have given of that system. the best and most energetic members of the industrial community sought refuge in exile from a land where honest labour was robbed by law of its reward. the weaker ones, who were compelled to remain, this terrible system defrauded, impoverished, and degraded. it afflicted every irishman, whether at home or abroad, with a sense of intolerable wrong, and created that passionate resentment towards england, which has been transmitted to succeeding generations. "one of the most obvious consequences," says mr. lecky, "was that for the space of about a century ireland underwent a steady process of depletion, most men of energy, ambition, talent, or character being driven from her shores."[ ] "if the ambition of an irishman lay in the paths of manufacture and commerce he was almost compelled to emigrate, for industrial and commercial enterprise had been deliberately crushed."[ ] this legislation, it must be remembered, fell most severely on the protestant population of ireland, although, of course, it grievously affected every class, and, indeed, every member of the community. twenty thousand puritans left ulster on the destruction of the woollen trade.[ ] "until the spell of tyranny was broken, in , annual ship-loads of families poured themselves out from belfast and londonderry. the resentment they carried with them continued to burn in their new homes; and, in the war of independence, england had no fiercer enemies than the great-grandsons of the presbyterians who had held ulster against tyrconnel."[ ] at the beginning of the eighteenth century, mr. lecky thinks the population of ireland slightly exceeded two millions,[ ] and he adopts the calculation of a contemporary writer that the woollen manufacture at the time of its suppression afforded employment to , protestant families in the metropolis, and , dispersed over the rest of the kingdom.[ ] we can, therefore, see at a glance how large a fraction of the entire population of the country were directly deprived of bread by that measure. swift, whose deanery lay in the liberties of dublin, the principal seat of the woollen manufacture, and who witnessed the results of its suppression, thus writes:--"three parts in four of the inhabitants of that district of the town where i dwell were english manufacturers, whom either misfortunes in trade, little petty debts contracted through illness, or the presence of a numerous family, had driven into our cheap country. these were employed in working up our worse wool, while the finest was sent into england. several of these had taken the children of the native irish apprentices to them who, being humbled by the forfeiture of upwards of three millions by the revolution, were obliged to stoop to a mechanic industry. upon the passing of this bill, we were obliged to dismiss thousands of these people from our service. those who had settled their affairs returned home, and overstocked england with workmen; those whose debts were unsatisfied, went to france, spain, and the netherlands, where they met with good encouragement, whereby the natives having got a firm footing in the trade, being acute fellows, so became as good workmen as any we have, and supply the foreign manufacturers with a constant supply of artisans."[ ] "upon the checking the export of our woollen manufactures," writes mr. arthur dobbs, in , "and by laying on heavy duties on its being exported to england in and , equivalent to a prohibition, most of those who were embarked in it were laid under a necessity of removing elsewhere; and, being piqued at the difficulties they were laid under, many of the protestants removed into germany, and settled in the protestant states there, who received them with open arms. several papists at the same time removed into the northern parts of spain, where they laid the foundations of a manufacture highly prejudicial to england. many also of the protestants who were embarked with papists in the woollen manufacture, removed into france, and settled at roan and other parts. notwithstanding louis xiv. had repealed the edict of nantes, and forced abroad the french protestants into different parts of europe, yet these were kindly received by him, had great encouragement given to them, and were protected in their religion. from these beginnings they have in many branches so much improved the woollen manufactures of france, as not only to supply themselves, but even to vie with the english in the foreign markets; and by their correspondence they have laid the foundation for the running of wool thither both from england and ireland, highly to the prejudice of britain, which pernicious practice is still carried on in spite of all the care and precaution made use of to discountenance and prevent it. thus a check is put upon the sale of our woollen manufactures abroad, which would have given employment to all the industrious poor both of britain and ireland, had not our manufacturers been forced away into france, spain, and germany, where they are now so improved as in great measure to supply themselves with many sorts they formerly had from england."[ ] in the irish house of commons "had to hear from the linen board that 'many thousands of the best manufacturers and weavers, with their families, had gone to seek their bread in america, and thousands were preparing to follow.' again a committee was appointed to inquire. this time the blame was laid on england, which had broken the linen compact, given bounties to lancashire mill-owners, which belfast was not allowed to share, and in 'jealousy of irish manufactures,' had laid duties on irish sail-cloth contrary to express stipulation. the accusation, as the reader knows, was true."[ ] "if," wrote mr. newenham, in , "we said that, during fifty years of the last century, the average annual emigration to america and the west indies amounted to , , and consequently that in that space of time , had emigrated to the british plantations, i am disposed to think we should rather fall short of than exceed the truth."[ ] it would be easy to adduce further evidence of the extent of this emigration caused by the destruction of irish manufactures and its results. the speech, however, of the right hon. luke gardiner, delivered in the irish house of commons on the nd of april, , is noteworthy. having described the destruction of the woollen trade, which was initiated by the irish act laying it under temporary prohibitions, passed by "a corrupt majority in this house;" the consequent emigration of the manufacturers, their favourable reception in foreign countries, and especially in france, who, availing herself of their industry, was enabled, not only "to rival great britain, but to undersell her in every market in europe," the speaker proceeded thus-- "england, from unhappy experience, is convinced of the pernicious effects of her impolicy. the emigration of the irish manufacturers in the reign of king william is not the only instance that has taught that nation the ruinous effects of restrictive laws. our own remembrance has furnished a sad instance of the truth of this assertion--furnished it in the american war. america was lost by irish emigrants. these emigrations are fresh in the recollection of every gentleman in this house; and when the unhappy differences took place, i am assured, from the best authority, that the major part of the american army was composed of irish, and that the irish language was as commonly spoken in the american ranks as english. i am also informed it was their valour determined the conquest; so that england not only lost a principal protection of her woollen trade, but also had america detached from her by force of irish emigrants."[ ] the weaker and more defenceless members of the irish industrial community were forced by circumstances to remain at home, and were accordingly exposed to the sufferings entailed by this policy of unenlightened selfishness and exasperation. the following extracts, taken from a mass of contemporaneous documents, will give some idea of their condition. "from the time," says hely hutchinson, "of this prohibition [of the woollen manufactures] no parliament was held in ireland till the year . five years were suffered to elapse before any opportunity was given to apply a remedy to the many evils which such a prohibition must necessarily have occasioned. the linen trade was then not thoroughly established in ireland; the woollen manufacture was the staple trade, and wool the principal material of that kingdom. the consequences of the prohibition appear in the session of . the commons lay before queen anne a most affecting representation containing, to use their own words, 'a true state of our deplorable condition,' protesting that no groundless discontent was the motive for that application, but a deep sense of the evil state of their country, and of the further mischiefs they have reason to fear will fall upon it if not timely prevented. they set forth the vast decay and loss of its trade, its being almost exhausted of coin that they are hindered from earning their livelihoods, and from maintaining their own manufactures; that their poor have thereby become very numerous; that great numbers of protestant families have been constrained to remove out of the kingdom, as well into scotland as into the dominions of foreign princes and states; and that their foreign trade and its returns are under such restrictions and discouragements as to be then become in a manner impracticable, although that kingdom had by its blood and treasure contributed to secure the plantation trade to the people of england. "in a further address to the queen, laid before the duke of ormonde, then lord-lieutenant, by the house, with its speaker, they mention the distressed condition of that kingdom, and more especially of the industrious protestants, by the almost total loss of trade and decay of their manufactures, and, to preserve the country from utter ruin, apply for liberty to export their linen manufactures to the plantations. "in a subsequent part of this session the commons resolve that, by reason of the great decay of trade and discouragement of the manufactures of this kingdom, many poor tradesmen were reduced to extreme want and beggary. this resolution was agreed to _nem. con._, and the speaker, mr. broderick, then his majesty's solicitor-general, and afterwards lord chancellor, in his speech at the end of the session, informs the lord-lieutenant that 'the representation of the commons was, as to the matters contained in it, the unanimous voice and consent of a very full house, and that the soft and gentle tones used by the commons in laying the distressed condition of the kingdom before his majesty, showed that their complaints proceeded not from querulousness, but from a necessity of seeking redress.'"[ ] in his proposal for the use of irish manufactures, which was published in , dean swift says: "the scripture tells us that oppression makes a wise man mad, therefore, consequently speaking, the reason why some men are not mad is because they are not wise. however, it were to be wished that oppression would in time teach a little wisdom to fools."[ ] "whoever travels in this country and observes the face of nature, and the faces and habits and dwellings of the natives, will hardly think himself in a land where law, religion, or common humanity is professed."[ ] nicholson, an englishman, translated from the bishopric of carlisle to that of derry, in a letter to the archbishop of canterbury, written in the same year, gives a similar account of the prevailing destitution: "never did i behold in picardy, westphalia, and scotland, such dismal marks of hunger and want as appeared in the countenances of most of the poor creatures i met with on the road." he states that one of his carriage horses having been killed by accident, it was surrounded by "fifty or sixty famished cottagers, struggling desperately to obtain a morsel of flesh for themselves and their children."[ ] swift, writing in , says: "the conveniency of ports and harbours, which nature has bestowed so liberally on this country, is of no more use to us than a beautiful prospect to a man shut up in a dungeon."[ ] "ireland is the only kingdom i ever heard of, either in ancient or modern story, which was denied the liberty of exporting their native commodities and manufactures wherever they pleased, except to countries at war with their own prince or state; yet this privilege, by the mere superiority of power, is refused us in the most momentous parts of our commerce; besides an act of navigation, to which we never consented, pinned down upon us, rigorously executed, and a thousand other unexampled circumstances, as grievous as they are invidious to mention."[ ] "if we do flourish it must be against every law of nature and reason, like the thorn of glastonbury, that blossoms in the midst of the winter."[ ] "the miserable dress, diet, and dwelling of the people, the general desolation in most parts of the kingdom, the old seats of the nobility in ruins, and no new ones in their stead, the families of farmers, who pay great rents, living in filth and nastiness, upon butter-milk and potatoes, without a shoe or stocking to their feet, or a house so convenient as an english hogsty to receive them. these, indeed, may be comfortable sights to an english spectator, who comes for a short time only to learn the language, and returns back to his own country whence he finds all his wealth transmitted. "nostra miseria magna est. there is not one argument used to prove the riches of ireland which is not a logical demonstration of its poverty."[ ] "ireland is the poorest of all civilised countries, with every advantage to make it one of the richest."[ ] "the great scarcity of corn," says hely hutchinson, "had been so universal in this kingdom in the years and as to expose thousands of families to the utmost necessities, and even to the danger of famine, many artificers and housekeepers having been obliged to beg for bread in the streets of dublin."[ ] this is probably the distress to which swift, writing in , alludes: "our present calamities are not to be represented. you can have no notion of them without beholding them. numbers of miserable objects crowd our doors, begging us to take their wares at any price to prevent their families from immediate starving."[ ] "in twenty years," says mr. lecky, "there were at least three or four of absolute famine."[ ] the writer of a pamphlet entitled "the groans of ireland in a letter to a member of parliament," published in dublin in , thus begins:-- "i have been absent from this country for some years, and on my return to it last summer found it the most miserable scene of universal distress that i ever read of in history. "want and misery in every face, the rich unable, almost as they were unwilling, to relieve the poor; the roads spread with dead and dying bodies; mankind of the colour of the docks and nettles which they fed on; two or three, sometimes more, on a car going to the grave for want of bearers, to carry them, and many buried only in the fields and ditches where they perished. this universal scarcity was ensued by malignant fevers, which swept off multitudes of all sorts; whole villages were laid waste by want and sickness and death in various shapes, and scarce a house in the whole island escaped from tears and mourning. "it were to be wished, sir, that some curious enquirer had made a calculation of the numbers lost in this terrible calamity. if one for every house in the kingdom died (and that is very probable, when we consider that whole families and villages were swept off in many parts together), the loss must have been upwards of , souls. if but one for every other house (and it was certainly more), , perished--a loss too great for this ill-peopled country to bear and the more grievous as the loss was mostly of the grown-up part of the working people." the writer then proceeds to emphasise the fact to which swift had previously directed attention: that irish famines are _artificial_. "sir,--when a stranger travels through this country and beholds its wide extended and fertile plains, its great flocks of sheep and black cattle, and all its natural wealth and conveniences for tillage, manufactures, and trade, he must be astonished that such misery and want could possibly be felt by its inhabitants; but you, who know the constitution and are acquainted with its weaknesses, can easily see the reason."[ ] writing in the year , hely hutchinson says, "in this and the last year about twenty thousand manufacturers in this metropolis were reduced to beggary for want of employment; they were for a considerable length of time supported by alms; a part of the contribution came from england, and this assistance was much wanting, from the general distress of all ranks of people in this country. public and private credit are annihilated."[ ] again, "a country will sooner recover from the miseries and devastation occasioned by war, invasion, rebellion, and massacre, than from laws restraining the commerce, discouraging the manufactures, fettering the industry, and, above all, breaking the spirits of the people."[ ] he thus summarises the effects of the eighty years' restrictive legislation, between the destruction of the woollen trade in and , the date at which he was writing. "can the history of any other fruitful country on the globe, enjoying peace for fourscore years, and not visited by plague or pestilence, produce so many recorded instances of the poverty and wretchedness, and of the reiterated want and misery of the lower orders of the people? there is no such example in ancient or modern story. if the ineffectual endeavours by the representatives of those poor people to give them employment or food had not left sufficient memorials of their wretchedness, if their habitations, apparel, and food were not sufficient proofs, i should appeal to the human countenance for my voucher, and rest the evidence on that hopeless despondency that hangs on the brow of unemployed industry."[ ] such were the more striking effects of this pernicious legislation. its remoter consequences were likewise disastrous. crime and outrage were promoted by the suppression of national industry. "in the year ," says hely hutchinson, "a new evil made its appearance, which all the exertions of the government and of the legislature have not since been able to eradicate. i mean the risings of the white boys. they appear in those parts of the kingdom where manufactures are not established, and are a proof of the poverty and want of employment of the lower classes of our people."[ ] then again, this system divorced law from public opinion. sir henry maine has well observed, that social necessities and social opinion are always more or less in advance of law, and that the greater or less happiness of a nation depends on the degree of promptitude with which the gulf between them is narrowed.[ ] in ireland that gulf was deliberately widened; and the people learned, with good reason, to regard the law, not as a protector, but as a plunderer of their rightful gains, and as an agency to make havoc of their industry. "when england," says mr. froude, "in defence of her monopolies, thought proper to lay restrictions on the irish woollen trade, it was foretold that the inevitable result would be an enormous development of smuggling."[ ] "the entire nation, high and low, was enlisted in an organised confederacy against the law. distinctions of creed were obliterated, and resistance to law became a bond of union between catholic and protestant, irish celt and english colonist."[ ] hely hutchinson, in a paper laid before lord buckinghamshire, in july, , places this matter in a clear light. "you have forced us into an illicit commerce, and our very existence depends now upon it. ireland has paid great britain for eleven years past double the sum that she collects from the whole world in all the trade which great britain allows her, a fact not to be paralleled in the history of the world. whence did the money come? but one answer is possible. it came from the contraband trade, and surely it is madness to suffer an important part of the empire to continue in that condition. you defeat your own objects."[ ] again, this system embittered the relations between landlord and tenant in ireland by raising unduly the creation of farms, the cultivation of the soil being the only industrial resource left to the people. "rents," says mr. lecky, "were regulated by competition; but it was competition between a half starving population, who had no other resource except the soil, and were prepared to promise anything rather than be deprived of it.[ ] the mass of the people," the same writer continues, "became cottiers, because it was impossible to gain a livelihood as agricultural labourers or in mechanical pursuits. this impossibility was due to the extreme paucity of circulating capital, and may be chiefly traced to the destruction of irish manufactures and to the absence of a considerable class of resident landlords, who would naturally give employment to the poor."[ ] such were some of the more immediate effects upon ireland of the commercial arrangements of great britain. that system was thus described in the irish house of commons in october, , by hussey burgh, who then held the office of prime serjeant, and afterwards became lord chief baron of the court of exchequer. "the usurped authority of a foreign parliament has kept up the most wicked laws that a jealous, monopolising, ungrateful spirit could desire, to restrain the bounty of providence and enslave a nation whose inhabitants are recorded to be a brave, loyal, generous people; by the english code of laws, to answer the most sordid views, they have been treated with a savage cruelty; the words penalty, punishment, and ireland are synonymous; they are marked in blood on the margin of their statutes, and though time may have softened the calamities of the nation, the baneful and destructive influence of those laws have borne her down to a state of egyptian bondage. the english have sowed their laws like serpents' teeth; they have sprung up as armed men."[ ] few will be disposed to disagree with mr. froude in his estimate of the effects of this policy. "by a curious combination this system worked the extremity of mischief, commercially, socially, and politically."[ ] footnotes: [ ] "eighteenth century," vol. ii., , . [ ] "eighteenth century," vol. ii., . [ ] "english in ireland," vol. i., . [ ] "english in ireland," vol. i., . [ ] "eighteenth century," vol. ii., . [ ] "eighteenth century," vol. ii., . [ ] swift's works (scott's ed.), vol. vii., . [ ] "an essay upon the trade of ireland"--"tracts and treatises" (ireland), , p. - . [ ] "english in ireland," vol. ii., . [ ] newenham on "population," p. . this remark is quoted by mr. lecky. [ ] "irish debates," vol. iii., . [ ] "commercial restraints," pp. - . [ ] swift's works (scott's edition), vol. vi., p. . [ ] swift's works (scott's edition), vol. vi., , . [ ] "england in the eighteenth century," vol. ii., . [ ] swift's works (scott's edition), vol. vii., p. . [ ] _ibid._, pp. , . [ ] _ibid._, p. . [ ] swift's works (scott's edition), vol. vii., pp. , . [ ] _ibid._, p. . [ ] "commercial restraints," p. . [ ] swift's works (scott's edition), vol. vii., p. . [ ] "eighteenth century," vol. ii., p. . [ ] the resemblance between this account of the famine of and the account of the condition of ireland in the june preceding the last irish famine, as given by the _times_, is striking. in an article of the th june, , that paper says--"the facts of irish destitution are ridiculously simple. they are almost too commonplace to be told. the people have not enough to eat. they are suffering a real, though an artificial, famine. nature does her duty. the land is fruitful enough. nor can it be fairly said that man is wanting. the irishman is disposed to work. in fact, man and nature together do produce abundantly. the island is full and overflowing with human food. but something ever interposes between the hungry mouth and the ample banquet. the famished victim of a mysterious sentence stretches out his hand to the viands which his own industry has placed before his eyes, but no sooner are they touched than they fly. a perpetual decree of _sic vos non nobis_ condemns him to toil without enjoyment. social atrophy drains off the vital juices of the nation." mr. lecky quotes from "the groans of ireland," a copy of which he found in the halliday collection of pamphlets in the irish academy ("eighteenth century," vol. ii., p. ). my attention was attracted by the reference, and, on inquiry, i ascertained that there were several copies of this pamphlet in the library of the king's inns. [ ] "commercial restraints," p. . [ ] _ibid._, pp. , . [ ] "commercial restraints," pp. , . [ ] _ibid._, p. . [ ] "ancient law," p. . [ ] "english in ireland," vol. i., p. . [ ] _ibid._, p. . [ ] _ibid._, vol. ii., p. . [ ] "eighteenth century," vol. ii., p. . [ ] _ibid._, p. . [ ] "macnevin's volunteers," p. . mr. froude well observes that these memorable words "had nothing to do with penal laws, and related entirely to the restrictions on trade." "english in ireland," vol. ii., p. . [ ] "english in ireland," vol. i., p. . in these pages i have designedly refrained from referring to the penal code. i have confined myself entirely to a recital of the leading features of the restrictions imposed by england on irish trade. it is, in my opinion, impossible to estimate, in distinct scales, the evils done by these terrible agencies. they acted and re-acted on each other, and affected not merely the special objects of legislation, but more or less directly every interest in the community. the able writer of a pamphlet, "irish wool and woollens," to which i have frequently referred, says:--"possibly the laws that annihilated the wool trade wrought more destruction than the legislation that aimed at stamping out the catholic faith, for the trade acts snatched bread from the mouth, filched hope from the heart, and wrenched power from the hands of the industrial sections of the community." (p. .) from this opinion i am constrained to differ. speaking as a protestant, i have no hesitation in saying that the injuries inflicted on ireland by the penal code exceeded the injuries inflicted on her by the trade regulations. "well," says the rev. canon maccoll, "may mr. matthew arnold speak of that penal code, of which the monstrosity is not half known to englishmen, and may be studied by them with profit." ("arguments for and against home rule," p. .) chapter v. the irish volunteer movement and free trade. the nature and effects of the irish volunteer movement have often been stated and explained. i can only touch upon this movement in a very cursory manner, confining myself strictly to its bearings on the commercial arrangements between great britain and ireland. a very superficial study of irish history will show that national movements have a tendency to grow out of controversies on trade and mercantile questions. thus the destruction of the woollen trade by the english parliament led irish politicians to question the right of that parliament to legislate for ireland at all. william molyneux, in his celebrated "case of ireland stated," published in , asks, "shall we of this kingdom be denied the birthright of every free-born english subject by having laws imposed on us when we are neither personally nor representatively present?"[ ] "that book," says chief justice whiteside, "met with a fate which it did not deserve. the english parliament ordered that it should be burned, and thereby much increased the estimation in which it was held in ireland."[ ] thus, too, the agitation against wood's half-pence, a purely commercial topic, assumed insensibly a national complexion. in his fourth drapier's letter, swift changes the controversy into an examination of ireland's political condition. "the remedy," he says, "is wholly in your own hands, and therefore i have digressed a little in order to refresh and continue that spirit so seasonably raised among you, and to let you see that by the laws of god, of nature, and of nations, and of your country, you are and ought to be as free a people as your brethren in england."[ ] swift's prosecution by the government of the day and its failure are well known. lord chief justice whiteside thus comments on his public conduct. "had there been a few in the irish parliament possessed of the originality, energy, honesty, and capacity of swift, the management of political affairs and the true interests of the country would have been speedily improved instead of being shamefully neglected. swift created a public opinion; swift inspired hope, courage, and a spirit of justifiable resistance in the people; swift taught irishmen they had a country to love, to raise, and to cherish. no man who recalls the affectionate respect paid by his countrymen to swift while he lived, to his memory when dead, can impute political ingratitude to be amongst the vices of the irish people."[ ] then, again, besides actively disputing england's right to destroy the trade and manufactures of the country, there was another remedy which lay in the people's own hands. they could, by the exercise of self-control, use irish manufactures alone. "england," says mr. froude, "might lay a veto on every healthy effort of parliamentary legislation; but england could not touch the self-made laws which the conscience and spirit of the nation might impose upon themselves." hely hutchinson has pointed out, that "the not importing goods from england is one of the remedies recommended by the council of trade in for alleviating some distress that was felt at the time; and sir william temple, a zealous friend to the trade and manufactures of england, recommends to lord essex, then lord lieutenant, to introduce, as far as can be, a vein of parsimony throughout the country in all things that are not perfectly the native growths and manufactures. the people of england cannot reasonably object to a conduct of which they have given a memorable example. in the english house of lords presented an address to king william to discourage the use and wearing of all sorts of furniture and cloths not of the growth and manufacture of that kingdom, and beseech him, by his royal example, effectually to encourage the use and wearing of all sorts of furniture and wearing cloths that are the growth of that kingdom or manufactured there; and king william assures them that he would give the example to his subjects, and would endeavour to make it effectually followed. the reason assigned by the lords for this address was that the trade of the nation had suffered by the late long and expensive war. but it does not appear that there was any pressing necessity at the time, or that their manufacturers were starving for want of employment. "common sense must discover to every man that when foreign trade is restrained, discouraged, or prevented in any country, and where that country has the materials for manufactures, a fruitful soil, and numerous inhabitants, the home trade is its best resource. if this is thought by men of great knowledge to be the most valuable of all trades, because it makes the speediest and surest returns, and because it increases at the same time two capitals in the same country, there is no nation on the globe whose wealth, population, strength, and happiness would be promoted by such a trade in a greater degree than ours."[ ] the author of the "commercial restraints" was a barrister of great eminence, who had been prime serjeant, was a member of the irish privy council, principal secretary of state, and provost of trinity college, and a distinguished member of the irish parliament. this book, however, obtained a reception similar to that accorded to the "case of ireland," and the fourth drapier's letter. in the fly-leaf of the copy in the library of the honourable society of the king's inns, which i have utilised in arranging this treatise, there are the following observations:--"of this remarkable book see the _times_ of february , . extract of a letter of sir valentine blake, m.p. for galway, in which he says, 'that immediately after its publication it was suppressed, and burned by the common hangman, and that mr. flood, in his place in the house of commons, said he would give one thousand pounds for a copy, and that the libraries of all the three branches of the legislature could not procure one copy of this valuable work.'" the editor of a new edition tells us that there are two copies of the work in the library of trinity college, dublin, both of which have been recently obtained, and from one of them the reprint is taken.[ ] when hely hutchinson, in , advocated "the necessity of using our own manufactures," he stated with accuracy that such arguments, though never so universal as at that time, were no new idea in ireland. it had been recommended half a century before by swift, and the celebrated bishop berkeley. "i heard," said swift, writing in , "the late archbishop of tuam (dr. john vesey) make a pleasant observation that ireland would never be happy till a law was made for burning everything that came from england, except their people and their coals."[ ] again, in , he says, "the directions to ireland are very short and simple, to encourage agriculture and home consumption, and utterly discard all importations that are not absolutely necessary for health or life."[ ] bishop berkeley, in the "querist," published in , asks these questions, which show clearly his views:--"whether there be upon the earth any christian or civilised people so beggarly wretched or destitute as the common irish? whether, nevertheless, there is any other people whose wants may be more easily supplied from home?"[ ] this advice was acted on by the irish people "after fifty years of expectation." "a great figure," says chief justice whiteside, "now appears upon the stage of public life--henry grattan, who took his seat for charlemont in december, , and began his splendid, though chequered career. the condition of ireland at this epoch was deplorable. her industry was shackled, her trade was paralysed, her landed interest was depressed, her exchequer empty, her pension list enormous, her shores undefended, her army withdrawn. the policy and maxims of swift were revived, a spirit of discontent and a spirit of independence pervaded the nation; the colonies had revolted, republican ideas were afloat in the world, and ireland was menaced with invasion. the government, on being applied to for troops, declared they had none to spare, and that ireland must protect herself. the volunteer movement then commenced, and, to the amazement of ministers, they soon stood face to face with an armed nation."[ ] mr. froude draws this picture of the condition of ireland in . "the grand juries represented that the fields and highways were filled with crowds of wretched beings half naked and starving. foreign markets were closed to them. the home market was destroyed by internal distress, and the poor artisans who had supported themselves by weaving were without work and without food. they had bought english goods as long as they had the means to buy them. now in their time of dire distress they had hoped the english parliament would be their friend. they learnt with pain and surprise that the only boon which could give them relief was still withheld. they besought the king to interpose in their favour, and procure them leave to export and sell at least the coarse frieze blankets and flannels, which the peasants' wives and children produced in their cabins. eloquence and entreaty were alike in vain. the english parliament, though compelled at least to listen to the truth, could not yet bend itself to act upon it. the house of commons still refused to open the woollen trade in whole or in part, and ireland, now desperate and determined, and treading ominously in the steps of america, adopted the measures which long before had been recommended by swift, and resolved to exclude from the irish market every article of british manufacture which could be produced at home."[ ] the earl of shelburne, speaking in the british house of lords on the st of december, , thus described the attitude of ireland:-- "ireland disclaimed any connection with great britain, she instantly put herself in a condition of defence against her foreign enemies; oppressed at one time by england, and at length reduced to a state of calamity and distress experienced by no other country that ever existed, unless visited by war or famine, and perceiving that all prospect of justice or relief was in a manner finally closed, and that she must perish or work out her own salvation, she united as one man to rescue herself from that approaching destruction which seemed to await her. the people instantly armed themselves and the numbers armed soon increased to upwards of , men, and were daily augmenting. this most formidable body was not composed of mercenaries, who had little or no interest in the issue, but of the nobility, gentry, merchants, citizens, and respectable yeomanry, men able and willing to devote their time and part of their property to the defence of the whole and the protection and security of their country. the government had been abdicated and the people resumed the powers vested in it, and in doing so were fully authorised by every principle of the constitution, and every motive of self-preservation, and whenever they should again delegate their inherent power they firmly and wisely determined to have it so regulated and placed upon so large and liberal a basis that they should not be liable to suffer from the same oppression in time to come, nor feel the fatal effects and complicated evils of maladministration, of calamity without hope of redress, or of iron-handed power without protection. "to prove that these were the declared and real sentiments of the whole irish nation, he should not dwell upon this or that particular circumstance, upon the resolutions of country or town meetings, upon the language of the associations, upon the general prevalent spirit of all descriptions of men of all religions; matters of this kind, however true or manifest, were subject to and might admit of controversy. he would solely confine himself to a passage contained in a state paper, he meant the address of both houses of the irish parliament, declaring that nothing but the granting the kingdom a 'free trade' could save it from certain ruin. here was the united voice of the country conveyed through its proper constitutional organs, both houses of parliament, to his majesty, against which there was but one dissentient voice in the houses, not a second, he believed, in the whole kingdom. church of england men and roman catholics, dissenters, and sections of all denominations, whigs and tories, if any such were to be found in ireland, placemen, pensioners, and county gentlemen, englishmen by birth, in short, every man in and out of the house, except the single instance mentioned, had all united in a single opinion that nothing would relieve the country short of a free trade."[ ] his lordship proceeds to explain the meaning of the expression "free trade," which was used in a sense different from the modern acceptation of that term:-- "a free trade, he was well persuaded, by no means imported an equal trade. he had many public and private reasons to think so. a free trade imported, in his opinion, an unrestrained trade to every part of the world, independent of the control, regulation, or interference of the british legislature. it was not a speculative proposition, confined to theory or mere matter of argument; the people of ireland had explained the context, if any ambiguity called for such an explanation; he received accounts from ireland that a trade was opened between the northern part of ireland and north america with the privity of congress, and indemnification from capture by our enemies; that provision ships had sailed to the same place--nay, more, that doctor franklyn, the american minister at paris, had been furnished with full power to treat with ireland upon regulations of commerce and mutual interest and support, and that whether or not any such treaty should take place, the mutual interests of both countries, their very near affinity in blood, and their established intercourse, cemented farther by the general advantages arising from an open and unrestrained trade between them, would necessarily perfect what had already actually begun."[ ] mr. lecky thus accurately and distinctly describes the nature of the commercial arrangements under which ireland obtained the limited free trade which she enjoyed, with some modifications, till the union:-- "the fear of bankruptcy in ireland; the non-importation agreements, which were beginning to tell upon english industries; the threatening aspect of an armed body, which already counted more than , men; the determined and unanimous attitude of the irish parliament; the prediction of the lord-lieutenant that all future military grants in ireland depended upon his (lord north's) course; the danger that england, in the midst of a great and disastrous war, should be left absolutely without a friend, all weighed upon his mind; and at the close of , and in the beginning of , a series of measures was carried in england which exceeded the utmost that a few years before the most sanguine irishman could have either expected or demanded. the acts which prohibited the irish from exporting their woollen manufactures and their glass were wholly repealed, and the great trade of the colonies was freely thrown open to them. it was enacted that all goods that might be legally imported from the british settlements in america and africa to great britain, may be in like manner imported directly from those settlements into ireland, and that all goods which may be legally exported from great britain into those settlements may in like manner be exported from ireland, on the sole condition that duties equal to those in british ports be imposed by the irish parliament on the goods and exports of ireland. the acts which prohibited carrying gold and silver into ireland were repealed. the irish were allowed to import foreign hops. they were allowed to become members of the turkey company, and to carry on a direct trade between ireland and the levant sea.[ ] "thus fell to the ground that great system of commercial restriction which began under charles ii., which under william iii. acquired a crushing severity, and which had received several additional clauses in the succeeding reigns. the measures of lord north, though obviously due in a great measure to intimidation and extreme necessity, were at least largely, wisely, and generously conceived, and they were the main sources of whatever material prosperity ireland enjoyed during the next twenty years. the english parliament had been accustomed to grant a small bounty--rising in the best years to £ , --on the importation into england of the plainer kinds of irish linen. after the immense concessions made to irish trade, no one could have complained if this bounty had been withdrawn, but north determined to continue it. he showed that it had been of real use to the irish linen manufacture, and he strongly maintained that the prosperity of ireland must ultimately prove a blessing to england."[ ] speaking at the guildhall in bristol in , edmund burke thus described the concessions to ireland and the series of circumstances to which these measures owed their origin:-- "the whole kingdom of ireland was instantly in a flame. threatened by foreigners, and, as they thought, insulted by england, they resolved at once to resist the power of france and to cast off yours. as for us, we were able neither to protect nor to restrain them. forty thousand men were raised and disciplined without commission from the crown; two illegal armies were seen with banners displayed at the same time and in the same country. no executive magistrate, no judicature in ireland, would acknowledge the legality of the army which bore the king's commission, and no law or appearance of law authorised the army commissioned by itself. in this unexampled state of things, which the least error, the least trespass on our part would have hurried down the precipice into an abyss of blood and confusion, the people of ireland demanded a freedom of trade with arms in their hands. they interdict all commerce between the two nations; they deny all new supply in the house of commons, although in time of war; they stint the trust of the old revenue given for two years to all the king's predecessors to six months. the british parliament, in a former session frightened into a limited concession by the menaces of ireland, frightened out of it by the menaces of england, were now frightened back again, and made an universal surrender of all that had been thought the peculiar, reserved, uncommunicable rights of england--the exclusive commerce of america, of africa, of the west indies, all the enumerations of the acts of navigation, all the manufactures--iron, glass, even the sacred fleece itself--all went together. no reserve, no exception, no debate, no discussion. a sudden light broke in upon us all. it broke in, not through well-contrived and well-disposed windows, but through flaws and breaches, through the yawning chasms of our ruin. we were taught wisdom by humiliation. no town in england presumed to have a prejudice or dared to mutter a petition. what was worse, the whole parliament of england, which retained authority for nothing but surrenders, was despoiled of every shadow of its superintendence. it was, without any qualification, denied in theory as it had been trampled upon in practice."[ ] "the chain," says mr. froude, "was allowed to remain till it was broken by the revolt of the american colonies, and ireland was to learn the deadly lesson that her real wrongs would receive attention only when england was compelled to remember them through fear."[ ] the commercial privileges thus obtained would have been practically valueless unless accompanied with legislative independence. i have explained the system by which measures proposed by the irish parliament were robbed of their efficiency by the action of the english and irish privy councils. "to prevent," says mr. froude, "the irish parliament from being troublesome, it was chained by poynings' act; and when the parliament was recalcitrant, laws were passed by england over its head." at this time the english privy council actively exercised its influence on the commercial legislation of the irish parliament. "the business of sugar-refining had recently taken great head in ireland, and the irish parliament sought to defend it against the english monopoly by an import duty on refined sugar; while they sought to give it a fair stimulus by admitting raw sugar at a low rate. this the privy council reversed, reducing the duty on refined sugar per cent. under the drawback allowed in england to the english refiner on export, and thereby giving the latter a virtual premium to that amount, and also increasing the duty on the raw sugar. the time was ill-chosen for further invasions on irish rights."[ ] "several minor circumstances concurred to exasperate the irish people still further, and to render irrevocable and, soon after, irresistible, their determination to have a free parliament, without which they said they never could obtain the extension of their trade amongst other benefits sought, nor even be sure of preserving what had been conceded to them."[ ] chief justice whiteside has given, in a few words, this spirited and accurate description of the attainment of irish legislative independence--"down went poynings' law, useful in its day; down went the act of philip and mary; down went the obnoxious statute of george i.; the mutiny bill was limited; restrictions on irish trade vanished; the ports were opened; the judges were made irremovable and independent. i cannot join in the usual exultation at the proceedings of the volunteers; on the contrary, i regret their occurrence. not that i think the resolutions carried at dungannon were in themselves unjust; not that i would hesitate to claim for ireland all the rights possessed by our english fellow-subjects; but because all these inestimable advantages were not granted by the wisdom of the government, through the recognised channel of parliament, and were carried at the point of the bayonet. the precedent was dangerous. had walpole been alive he would have repented his blunder in listening to primate boulter, and refusing to be advised by the counsels of swift. but the deed was done."[ ] on the th of april, , in the irish house of commons, grattan thus expressed his high-wrought enthusiasm:-- "i found ireland on her knees. i watched over her with an eternal solicitude. i have traced her progress from injuries to arms, and from arms to liberty. spirit of swift, spirit of molyneux, your genius has prevailed. ireland is now a nation. in that new character i hail her, and bowing in her august presence, i say, esto perpetua."[ ] footnotes: [ ] reg. _v._ o'connell, p. . this observation was made by mr. (afterwards chief justice) whiteside in his speech in defence of mr. (now sir c. gavan) duffy, in the state trials, . [ ] "case of ireland," p. . [ ] swift's works (scott's edition), vol. vi., p. . [ ] "life and death of the irish parliament," p. . [ ] "commercial restraints," pp. - . [ ] "commercial restraints," re-edited, with sketch of the author's life, introduction, notes, and index, by rev. w. g. carroll, m.a. dublin: m. h. gill & son. [ ] swift's works (scott's edition), vol. vi., p. . [ ] _ibid._, vol. vii., p. . [ ] "tracts and treatises" (ireland), , p. . [ ] "life and death of the irish parliament," p. . [ ] "english in ireland," ii. , . [ ] the dissentient voice was that of sir r. heron, secretary to the lord-lieutenant. [ ] "parliamentary debates," , pp. - . [ ] geo, iii. (eng.), cc. , , . [ ] "eighteenth century," iv. , . some commercial concessions which were, however, manifestly insufficient, had been previously granted. see "eighteenth century," iv., pp. , , . [ ] edmund burke on "irish affairs," edited by m. arnold, pp. , . [ ] "english in ireland," vol. ii., p. . [ ] "an argument for ireland," by j. o'connell, m.p., p. . [ ] "an argument for ireland," p. . [ ] "life and death of the irish parliament," p. . [ ] grattan's "speeches," i. . chapter vi. the commercial arrangements between england and ireland, - . the commercial relations between england and ireland in the interval between and should be clearly understood. ireland had, by the acts of and , obtained the freedom of foreign and colonial trade, both of export and of import. by an act of , she had obtained liberty to re-export foreign and colonial goods from her own shores to england.[ ] she had, by an english act of the same year, got the illusory privilege of having an eight-hundred-ton east indiaman to make up a cargo for the east in her ports. but she had not free trade to the east, nor had she the admission to english ports for her goods.[ ] "the practical boon," says mr. butt, "that was won for the irish nation (by the volunteers), was the right of the parliament of ireland to control our own harbours, and to regulate our own trade. of course the trade of ireland was subject to the interference which england could exercise by her dominion over the colonies and dependencies of the imperial crown. a law which would have prohibited the exportation of irish goods either to england or france or canada, would have been beyond the power of the english parliament to pass, but it was perfectly competent to that parliament to prohibit the importation of these goods into england or canada, just in the same manner as the french government might have prohibited their importation into france. the english parliament was the supreme legislature for england and the colonies, and had just the same power of legislating against the importation of irish products, as they would have had against those of holland or of france." thus stood the irish parliament in constitutional position from until its dissolution.[ ] england, as we have seen, had laid prohibitory duties on irish manufactures, whereas ireland, bound by the chain of poynings' law, was unable to protect her own industries. "it was very natural," in the words of mr. pitt, "that ireland, with an independent legislature, should now look for perfect equality." in mr. griffiths, advocating in the irish house of commons the protection of irish manufacturers, said: "lord north knew very well when he granted you a free trade that he gave you nothing, or, at most, a useless bauble, and when petitions were delivered against our free trade by several manufacturing towns in england, he assured them in circular letters that nothing effectual had or should be granted to ireland."[ ] the irish parliament, however, on obtaining legislative independence, refrained from measures of retaliation in the hope that the commercial relations of both countries would be settled on a satisfactory basis. mr. pitt, in introducing in the english house of commons his celebrated commercial propositions for the regulation of trade between england and ireland, thus speaks: "to this moment (february, ) no change had taken place in the intercourse between great britain and ireland themselves. some trivial points, indeed, had been changed, but no considerable changes had taken place in our manufactures exported to ireland, or in theirs imported to england. that, therefore, which had been done was still believed by the people of ireland to be insufficient, and clamours were excited and suggestions published in dublin and elsewhere of putting duties on our products and manufactures under the name of protecting duties."[ ] chief justice whiteside thus states summarily the scope of mr. pitt's propositions:-- "it was proposed to allow the importation of the produce of all other countries through great britain into ireland, or through ireland into great britain, without any increase of duty on that account. it was proposed, as to any article produced or manufactured in ireland or in england, where the duties were then different on importation into either country, to reduce those duties in the kingdom where they were highest down to the lower scale. and it was asked from ireland that when the gross hereditary revenue should rise above a fixed sum, the surplus should be appropriated towards the support of the naval force of the empire. these propositions passed through both branches of the irish legislature, were remitted to england, and by pitt laid before the british house of commons. he was immediately attacked by fox and the whigs, aided by lord north, who one and all declared themselves the uncompromising enemies of free trade. and these factious men declared that in the interests of the british manufacturers they could not allow irish fustians to be brought into england to ruin english manufacturers. the fustian they affected to fear was nothing to be compared with the fustian of their speeches. the enlightened views of the great conservative minister were in a measure baffled by the shameful opposition of fox, and of his friends in parliament, and of thick-headed cotton manufacturers out of the house. the result was that pitt was coerced to introduce exceptions and limitations. the eleven propositions grew up to twenty, the additional propositions relating to various subjects, patents, copyrights, fisheries, colonial produce, navigation laws, the enactment as to which was that whatever navigation laws were then, or should thereafter be enacted by the legislature of great britain, should also be enacted by the legislature of ireland; and in favour of the old east india company monopoly, ireland was debarred from all trade beyond the cape of good hope to the straits of magellan." "there seemed to be nothing hurtful to the pride of ireland in the affair. but when fox found that his great rival defeated him on the commercial part of the question, he artfully, as lord stanhope shows, changed his ground of attack, and availing himself of the limitations which pitt had been compelled to introduce into his original scheme, fox cried out that this was a breach of ireland's newly-granted independence. 'i will not,' said fox, with incredible hypocrisy, or with incredible folly, 'i will not barter english commerce for irish slavery, this is not the price i would pay, nor is this the thing i would purchase.'" "when the twenty propositions of mr. pitt were returned to the irish parliament, they encountered a fierce and protracted opposition. mr. grattan's speech has been extolled as one of his ablest--it is not intemperate. his chief objection was to the fourth resolution, by which he said, 'we are to agree to subscribe whatever laws the parliament (of england) shall subscribe respecting navigation; we are to have no legislative power--then there is an end of your free trade and of your free constitution.' he also curiously objected that the measure was 'an union--an incipient and a creeping union--a virtual union establishing one will in the general concerns of commerce and navigation, and reposing that will in the parliament of great britain.'" "dublin was illuminated, the people exulted in the abandonment of the scheme."[ ] "it was not," says mr. john o'connell, "till after a fair experiment and delay that the irish parliament, despairing of getting england to terms by fair means, commenced retaliation. to this we have the incontestable testimony of the commissioners of revenue inquiry in , an authority by no means disposed to be over-favourable to irish interests or over-anxious for the credit of the irish parliament. in their fourth report, speaking of the system of restrictions on english goods and bounties on their own, to which that parliament had recourse, they say: "ireland was undoubtedly instigated to the adoption of this course by the exclusive spirit of the commercial policy of england. it will be found that few exceptions in favour of the sister kingdom were inserted in the list of goods absolutely prohibited to be imported into this country (england), in which list all goods made of cotton-wool, every description of manufactured woollen, silk, and leather, together with cattle, sheep, malt, stuffs, and other less important articles were at one time comprehended. in this embarrassing situation of exclusion from the markets of great britain, and deriving little assistance from foreign trade, ireland had no other course to pursue for the protection of her own industry except that of maintaining, by restrictive duties on the importations from great britain, the manufacturing means she possessed for the supply of her own markets."[ ] that ireland made a great advance in prosperity in the interval between and is in my judgment incontrovertible. mr. o'connell, when conducting his own defence in the state trials of , thus spoke with reference to this subject: "i may be asked whether i have proved that the prophecy of fox was realised--that the prosperity that was promised to ireland was actually gained by reason of her legislative independence. now, pray, listen to me; i shall tell you the evidence by which i shall demonstrate this fact. it is curious that the first of them is from mr. pitt, again in the speech he made in in favour of the resolutions for carrying the union. if he could have shown that ireland was in distress and destitution, that her commerce was lessened, that her manufactures were diminished, that she was in a state of suffering and want by reason of, or during the legislative independence of the country, of course he would have made it his topic in support of his case, to show that a separate legislature had worked badly, and produced calamities and not blessings; but the fact was too powerful for him. he had ingenuity to avail himself of the fact, which fact he admitted; and let us see how he admitted it. he admitted the prosperity of ireland, and here was his reasoning. now, mark it. 'as ireland,' he said, 'was so prosperous under her own parliament, we can calculate that the amount of her prosperity will be trebled under a british legislature.' he first quoted a speech of mr. foster's in , in these words:--'the exportation of irish produce to england amounts to two millions and a half annually, and the exportation of british produce to ireland amounts to one million.' instead of saying, 'you are in want and destitution; unite with england, and you will be prosperous,' he was driven to admit this: 'ireland is prosperous now with her own parliament, but it will be trebly prosperous when you give up that parliament, or have it joined with the parliament of england.' so absurd a proposition was never yet uttered; but it shows how completely forced he was to admit irish prosperity, when no other argument was left in his power; but the absurd observation i have read to you. he gives another quotation from foster, in which it is said britain imports annually £ , , of our products, all, or nearly all, duty free, and we import a million of hers, and raise a revenue on almost every article of it. this relates to the year . pitt goes on to say: 'but how stands the case now ( )? the trade at this time is infinitely more advantageous to ireland. it will be proved from the documents i hold in my hand--as far as relates to the mere interchange of manufactures--that the manufactures exported to ireland from great britain in very little exceeded one million sterling (the articles of produce amount to nearly the same sum); whilst great britain, on the other hand, imported from ireland to the amount of more than three millions in the manufacture of linen and linen-yarn, and between two and three millions in provisions and cattle, besides corn and other articles of produce.' 'that,' said mr. pitt, 'was in , three years after her legislative independence; that was the state of ireland.' you have seen, gentlemen, that picture. you have heard that description. you have heard that proof of the prosperity of ireland. she then imported little more than one million's worth of english manufacture; she exported two and a half millions of linen and linen-yarn, adding to that the million of other exports. there is a picture given of her internal prosperity. recollect that we now ( ) import largely english manufactures, and that the greatest part of the price of these manufactures consists of wages which the manufacturer gives to the persons who manufacture them. £ , , worth of linen and linen-yarn were exported, and one million of other goods. compare that with the present state of things. does not every one of you know there is scarcely anything now manufactured in ireland, that nearly all the manufactures used in ireland are imported from england? i am now showing the state of irish prosperity at the time i am talking of. i gave you the authority of foster (no small one) and of pitt for irish prosperity during that time. i will give you the authority of another man that was not very friendly to the people of this country--that of lord clare. lord clare made a speech in , which he subsequently published, and in which i find this remarkable passage, to which i beg leave to direct your particular attention. 'there is not,' said his lordship, 'a nation on the face of the habitable globe which has advanced in cultivation, in manufactures, with the same rapidity in the same period as ireland' (namely, from to ). that was the way in which irish legislative independence worked, and i have in support of it the evidence of pitt, foster, and lord clare; and lord grey, in , talking of scotland in the same years, says: 'in truth, for a period of more than forty years after the [scottish] union, scotland exhibited no proofs of increased industry and rising wealth.' lord grey, in continuation, stated that 'till after there was no sensible advance of the commerce of scotland. several of her manufactures were not established till sixty years after the union, and her principal branch of manufacture was not set up, i believe, till . the abolition of the heritable jurisdictions was the first great measure that gave an impulse to the spirit of improvement in scotland. since that time the prosperity of scotland has been considerable, but certainly not so great as that of ireland has been within the same period.' lord plunket, in his speech in , in one of his happiest efforts of oratory, speaks of her as of 'a little island, with a population of four or five millions of people, hardy, gallant, and enthusiastic, possessed of all the means of civilisation, agriculture, and commerce well pursued and understood, a constitution fully recognised and established, her revenues, her trade, her manufactures thriving beyond her hope, or the example of any other country of her extent, within these few years advancing with a rapidity astonishing even to herself, not complaining of deficiency in these respects, but enjoying and acknowledging her prosperity.' "gentlemen of the jury, i will now direct your attention to such documents as will tend to corroborate the facts contained in those i have already adverted to. you have heard that in a meeting was held in dublin to petition the legislature for a repeal of the union. i will read an unconnected passage from a speech delivered by a gentleman belonging to a most respectable house in this city.[ ] it is as follows:--'some of us remember this country before we recovered and brought back our constitution in the year . we are reminded of it by the present period. then as now our merchants were without trade, our shopkeepers without customers, our workmen without employment; then as now it became the universal feeling that nothing but the recovery of our rights could save us. our rights were recovered, and how soon afterwards, as if by magic, plenty smiled on us, and we soon became prosperous and happy.' let me next adduce the testimony of a class of citizens who, from their position and the nature of their avocations, were well calculated to supply important evidence on the state of ireland subsequent to the glorious achievements of . the bankers of dublin held a meeting on the th of december, , at which they passed the following resolutions:--'resolved, that since the renunciation of the power of great britain in to legislate for ireland, the commerce and prosperity of this kingdom have eminently increased,' 'resolved, that we attribute these blessings, under providence, to the wisdom of the irish parliament.' the guild of merchants met on the th january, , and passed a resolution declaring 'that the commerce of ireland has increased, and her manufactures improved beyond example, since the independence of this kingdom was restored by the exertions of our countrymen in . resolved, that we look with abhorrence on any attempt to deprive the people of ireland of their parliament, and thereby of their constitutional right and immediate power to legislate for themselves.' i have given abundance of proofs, from extracts i have read, of the prosperity of ireland under the fostering care of her own parliament. a parliamentary document shows that, from to the period of the union, the increase in the consumption of teas in ireland was per cent., while it was only per cent. in england. the increase of tobacco in ireland was per cent., in england ; in wine, in ireland per cent., in england ; in sugar, per cent. in ireland, and in england ; in coffee, in ireland per cent., in england . you have this proof of the growing prosperity of ireland from the most incontestable evidence. no country ever so rapidly improved as ireland did in that period."[ ] footnotes: [ ] geo. iii. (eng.), c. . [ ] "an argument for ireland," p. . [ ] "irish federalism," pp. , . [ ] "irish debates," iii. . [ ] "parliamentary register," xvii., p. . [ ] "life and death of the irish parliament," pp. - . mr. morley's account of the part taken by fox in this transaction is substantially in accord with that given by chief justice whiteside. see "english men of letters"--"edmund burke," by john morley, p. . [ ] "an argument for ireland," p. . [ ] a mr. hutton, the head of a great carriage manufactory in dublin. [ ] "r. _v._ o'connell," pp. - . this part of mr. o'connell's speech is simply an echo of the speech he delivered in during the discussion in the dublin corporation on repeal of the union, in which he relied on the same documentary evidence of ireland's material prosperity between and . these proofs could easily be multiplied. thus mr. jebb, afterwards a justice of the court of king's bench in ireland, published a pamphlet in , in which he says: "in the course of fifteen years our commerce, our agriculture, and our manufactures have swelled to an amount that the most sanguine friends of ireland could not have dared to prognosticate." chapter vii. the commercial arrangements between england and ireland effected by the act of legislative union. the commercial arrangements effected between england and ireland at the time of the union are embodied in the sixth article of the act of union. this article provides that in respect of trade and navigation the subjects of great britain and ireland are to be on the same footing from the st of january, ; that there are to be no duties or bounties on the exportation of produce of one country to the other; that all articles (except certain specified articles scheduled, which were to be subject to certain countervailing duties) the produce of either country are to be imported free from duty; that articles enumerated in schedule ii. are to be subject for twenty years to the duties therein mentioned; that the woollen manufacturers are to pay on importation into each country from the other the duties now payable on importation into ireland; that the duties on salt, hops, and wools are not to exceed the duties that were then paid on importation into ireland; that the duties on calicoes and muslins are to be liable to the duties then payable on these commodities on importation from great britain to ireland till the th of january, ; that after that date these duties are to be reduced to per cent. till january th, , and then to cease altogether; that duties on cotton-yarn and cotton-twist are to be liable to the duties then payable on these commodities[ ] till january th, ; that these duties are to be reduced annually from that date, and on the th of january, , to cease altogether; that the produce of either country, subject to internal duty, is, on importation into each country, to be subject to countervailing duty; that the produce of either country exported through the other is to be subject to the same charges as if it had been exported directly from the country producing it; that duties charged on the import of foreign or colonial produce into either country are, on their export to the other, to be drawn back so long as the expenditure of the united kingdom shall be defrayed by proportional contributions, but that this provision is not to extend to duties on corn. the speaker of the irish commons--the right hon. john foster (afterwards lord oriel)--was the chief among several able opponents of these regulations. in and in he made powerful speeches in opposition, and went largely into the subject of the commercial relations of the two countries, and exposed their past and future inequalities and injustices towards irish interests. his objections to the th article of union were, briefly, as follows:-- "that they lowered all protecting duties that were above per cent. to that amount, and thus exposed the infant manufactures of ireland (which the irish parliament had in latter years begun to protect) to the overwhelming competition of the great capital and long-established skill and ability of england. that no less than seventy articles of our manufacture would thus be injured, and our cotton manufactures in particular, in which we had begun to make most promising advances, would be nearly ruined. that no preference over foreign goods in the british market was given. that the 'new and excessive' duties on salt were made perpetual, those on hops and coals unalterable. that our brewery was left unprotected, etc., etc." the opponents of the union drew up a solemn and elaborate protest in order to perpetuate on the records of parliament, and hand down to posterity, their views on that subject. lord corry moved the protest and address to the king, which thus speaks of the commercial arrangements proposed and subsequently carried out under the provisions of the act of union: "were all the advantages which without any foundation they have declared that this measure offers, to be its instant and immediate consequence, we do not hesitate to say expressly that we could not harbour the thought of accepting them in exchange for our parliament, or that we could or would barter our freedom for commerce, or our constitution for revenue; but the offers are mere impositions, and we state with the firmest confidence that in commerce or trade their measure confirms no one advantage, nor can it confirm any, for by your majesty's gracious and paternal attention to this your ancient realm of ireland, every restriction under which its commerce laboured has been removed during your majesty's auspicious reign, and we are now as free to trade to all the world as britain is. in manufactures, any attempt it makes to offer any benefit which we do not now enjoy is vain and delusive, and whenever it is to have effect, that effect will be to our injury. most of the duties on imports which operate as protections to our manufactures, are under its provisions either to be removed or reduced immediately, and those which will be reduced are to cease entirely at a limited time, though many of our manufacturers owe their existence to the protection of those duties, and though it is not in the power of human wisdom to foresee any precise time when they may be able to thrive without them. your majesty's faithful commons feel more than an ordinary interest in laying this fact before you, because they have under your majesty's approbation raised up and nursed many of those manufactures, and by so doing have encouraged much capital to be vested in them, the proprietors of which are now to be left unprotected, and to be deprived of the parliament on whose faith they embarked themselves, their families, and properties in the undertaking."[ ] mr. pitt could not have been ignorant of the effect which english competition would produce on the infant and practically unprotected manufactures of ireland. thus fifteen years previously, when introducing his commercial propositions of in the english house of commons, he calmed the fears and raised the hopes of the english manufacturers:-- "it was said that our manufactures were all loaded with heavy taxes. it was certainly true, but with that disadvantage they had always been able to triumph over the irish in their own markets, paying an additional ten per cent. on the importation to ireland, and all the charges. but the low price of labour was mentioned. would that enable them to undersell us? manufacturers thought otherwise--there were great obstacles to the planting of any manufacture. it would require time for arts and capital, and the capital would not increase without the demand also, and in an established manufacture improvement was so rapid as to bid defiance to rivalship."[ ] the irish parliament, in wishing to protect their infant manufactures, were strictly within the lines of modern economic science. thus mr. john stuart mill speaks of the wisdom of protecting duties in countries whose conditions are similar to those of ireland as described by mr. pitt:-- "the only case in which, on mere principles of political economy, protecting duties can be defensible, is when they are imposed temporarily (especially in a young and rising nation) in the hopes of naturalising a foreign industry in itself perfectly suitable to the circumstances of the country. the superiority of one country over another in a branch of production often arises only from having begun it sooner. there may be no inherent advantage on one part or disadvantage on the other, but only a present superiority of acquired skill and experience. a country which has this skill and experience yet to acquire may in other respects be better adapted to the production than those that were earlier in the field; and, besides, it is a just remark of mr. rae that nothing has a greater tendency to promote improvements in any branch of production than its trial under a new set of conditions. but it cannot be expected that individuals should at their own risk, or rather to their certain loss, introduce a new manufacture and bear the burthen of carrying it on until the producers have been educated up to the level of those with whom the processes are traditional. a protecting duty continued for a reasonable time will sometimes be the least inconvenient mode in which the nation can tax itself for the support of such an experiment. but the protection should be confined to cases in which there is good ground of assurance that the industry which it fosters will, after a time, be able to dispense with it, nor should the domestic producers ever be allowed to expect that it will be continued to them beyond the time necessary for a fair trial of what they are capable of accomplishing."[ ] the irish manufactures, which had revived by the protecting care of the irish parliament, died when that safeguard was removed. mr. bushe, who was eighteen years solicitor-general under a tory administration, and twenty years chief justice of ireland, thus briefly described in the irish parliament the course of policy pursued by england towards the "sister country":-- "for centuries have the british nation and parliament kept you down, shackled your commerce, paralysed your exertions, despised your character, and ridiculed your pretensions to any privileges, commercial or constitutional."[ ] "i cannot think," says mr. chaplin, from his place in the english house of commons, "that any reforms or remedial legislation that may be adopted (for ireland) can be considered satisfactory or complete which do not include encouragement and, if necessary, assistance for the re-establishment of those industries which in former days were destroyed by the bitterly unjust and selfish policy of england."[ ] printed by cassell & company, limited, la belle salvage, london, e.c. footnotes: [ ] on importation from great britain to ireland. [ ] mr. whiteside read this protest in his speech in defence of mr. c. g. duffy, in the state trials, . ("r. _v._ o'connell," pp. , .) [ ] "parliamentary register," xvii., pp. , . [ ] "principles of political economy," p. . [ ] "life of plunket," ii., p. . [ ] hansard, , third series, p. . _by the same author._ the irish parliament: what it was and what it did. by j. g. swift macneill, m.a. price s. "_it contains, i think, within a wonderfully narrow compass, the heart and pith of a large as well as sad chapter of history._"--rt. hon. w. e. gladstone, m.p. "mr. swift macneill explains the constitution of the irish parliament, both before and--what has been called grattan's parliament--after , and shows the differences and relations between it and the english parliament; and he offers such an account of the working of the system--impartial in spirit and supported by abundant quotations from contemporary public men, both irish and english--as is fitted to warn us against its revival, at least without serious modifications."--_contemporary review._ "the history of the national parliamentary government of ireland is but vaguely known, and it is important just now that information respecting it should be accessible in a popular form. this work puts the subject into a nutshell."--_literary world._ "we have never seen the workings of the old irish parliament placed before the reader in so accessible a form as in this volume, for which both mr. macneill and messrs. cassell & co., who are the publishers, deserve the best thanks of every reader."--_liverpool mercury._ "the book has a value which it would not be easy to overrate, and should find its way into the hands of every politician."--_plymouth western daily mercury._ "a little book of exceeding value."--_londonderry journal._ "this concise but clear and comprehensive treatise from the pen of mr. j. g. swift macneill, m.a., is issued at a peculiarly appropriate time, and will from that circumstance, no less than from its own merits, be gratefully welcomed by those who are anxious for light and leading on a question which has suddenly become one of the most pressing, as it has long been one of the most important, with which the statesmen of the present day are called upon to grapple."--_nottingham guardian._ cassell & company, limited, _ludgate hill, london_. _eleventh and cheap edition, cloth_, s. d. the life of the right hon. w. e. gladstone. _by g. barnett smith._ "a trustworthy and interesting picture of a noble life and character."--_daily news._ "a sober, solid, but interesting contribution to the political history of the victorian epoch."--_daily telegraph._ "the book should be read by every one who takes the least interest in the political history of the country."--_daily chronicle._ "an elaborate and ably-written biography of mr. gladstone as a statesman and a writer."--_echo._ "mr. barnett smith's life of mr. gladstone is _a work of national importance_, and it should be read and studied by all classes."--_nottingham daily express._ "many a thoughtful working man will hasten to add this book to his little store of fondly-cherished volumes."--_north british daily mail._ "a very complete account of mr. gladstone's relations to the history of the past forty years."--_observer._ "a noble biography of a noble man."--_aberdeen free press._ "the minute accuracy of the painstaking record is indeed wonderful, considering the vastness of the field over which the biographer has been obliged to travel. _the volumes are, in fact, a history of england during the past half century_, as well as a biography of the individual whose name they bear."--_freeman._ "the most superficial glance at the book is enough to secure the impression of great power in many departments on the part of the subject of it, and of great penetration, care, deliberation, and tact on the part of the author."--_nonconformist._ "_the most comprehensive and satisfactory life of mr. gladstone_ which has yet been compiled and given to the public."--_edinburgh daily review._ cassell & company, limited, _ludgate hill, london_.